MLD 2021 Judgments

2021 M L D 860

[Federal Shariat Court]

Before Muhammad Noor Meskanzai, CJ, Shaukat Ali Rakshani and Dr. Syed Muhammad Anwer, JJ

NOOR KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.02-K of 2019 and Murder Reference No.01-K of 2019, decided on 15th December, 2020.

Penal Code (XLV of 1860)---

----S.365-A---Anti-Terrorism Act (XXVII of 1997), Ss.25 & 32---Kidnapping for ransom---Appeal against final judgment of Anti-Terrorism Court before Federal Shariat Court---Maintainability---Record showed that since the principal offence whereby the accused had been convicted, was S.365-A, P.P.C., death penalty had been awarded, rest of the offences were ancillary thereto---According to S.17 read with S.21-H of the Anti-Terrorism Act, 1997 any other offence committed in the same series of the act falling within any other law was also triable by the Anti-Terrorism Court---Conviction recorded and sentence awarded under S.395, P.P.C., on that analogy might be treated ancillary to the principal offence and the appeal would lie before the forum provided by Anti-Terrorism Act, 1997---Federal Shariat Court, in circumstances, transferred the appeal to the High Court of Sindh, accordingly.

Aijaz Shaikh for Appellant.

2021 M L D 888

[Federal Shariat Court]

Before Muhammad Noor Meskanzai, CJ

ASGAR ALI and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal Appeal No.07-K of 2020, decided on 12th December, 2020.

(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts.3 & 4---Possessing intoxicant---Appreciation of evidence---Benefit of doubt---Delay of about five hours in lodging the FIR---Effect---Prosecution case was that 5064 bottles of wine were recovered from the dumper belonging to the accused persons---Record showed that the incident took place at 2:30 p.m. and the report was lodged at 7:30 p.m. with no explanation, whatsoever---Statement of the complainant as well as recovery witness created more doubt regarding veracity of time qua lodging report---Recovery witness stated that three hours were consumed in whole proceedings at place of incident whereas complainant stated that they consumed seven hours---As per the statement of recovery witness, there was delay of two hours without explanation---Not only the delay remained unexplained, rather the very veracity of the FIR became suspicious and doubtful---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts.3 & 4---Possessing intoxicant---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Prosecution case was that 5064 bottles of wine were recovered from the dumper belongings to the accused persons---Prosecution produced three witnesses to prove its case---Recovery witness stated that 538 bottles of different kind of wine were recovered through recovery memo whereas the recovery memo spoke recovery of 5064 bottles---Recovery witness was neither declared hostile nor the second witness to recovery memo was produced---Investigating Officer admitted in cross-examination that he did not examine the case property---Complainant stated that they recovered 211 sacks containing 5064 bottles of different brands of wine---Not only no consensus among the witnesses on quantity i.e. number of bottles, rather their statements were divergent, contradictory and conflicting---Investigating Officer was silent regarding number of bottles and statement of recovery witness and complainant were contradictory with each other and irreconcilable to the extent that if one piece of evidence was believed that was bound to belie the other---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Witness---Sole statement of witness---Scope---Sole and single statement of witness was sufficient to sustain capital sentence provided it rings true and inspires confidence.

(d) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts.3 & 4---Possessing intoxicant---Appreciation of evidence---Benefit of doubt---Delay of about more than fifteen months in conducting the test of liquor---Effect---Prosecution case was that 5064 bottles of wine were recovered from the dumper belonging to the accused persons---Report of Chemical Examiner revealed that the samples were sent on 13.11.2018 and the test perhaps was conducted on 10.03.2020, there was no explanation for that delay which was fatal for prosecution---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

(e) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts.3 & 4---Criminal Procedure Code (V of 1898), S.103---Possessing intoxicant---Appreciation of evidence---Benefit of doubt---Non-association of private witnesses---Scope---Prosecution case was that 5064 bottles of wine were recovered from the dumper belonging to the accused persons---Record showed that despite prior information, the prosecution did not attempt to associate any private person to attest recovery proceedings---Recovery witness stated that complainant asked 08/10 persons to become witnesses of incident---Complainant stated that he had not associated any private witness on the spot---Recovery witness stated that the police unloaded and loaded the contraband items whereas complainant stated that vehicle was unloaded by labourers arranged by him---If that was the position, why the said labourers were not associated with recovery proceedings as witness---Non-compliance of mandatory provision of S.103, Cr.P.C. was illegally ignored by Trial Court---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

(f) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts.3 & 4---Possessing intoxicant---Appreciation of evidence---Benefit of doubt---Prosecution case was that 5064 bottles of wine were recovered from the dumper belonging to the accused persons---Record showed that neither the case property nor the alleged samples were produced before the court identified, hence another glaring irregularity---Trial Court without ascertaining the fact as to how the other two persons except the driver could have been saddled with the commission of the alleged offence without collecting any incriminating material against them---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Imran Kalmati for Appellants.

Zafar Ahmed Khan, Additional Prosecutor General, Sindh for the State.

2021 M L D 1577

[Federal Shariat Court]

Before Muhammad Noor Meskanzai, CJ and Dr. Fida Muhammad Khan, J

SHOLO alias RASOOL BUX---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.15-I of 2019, decided on 30th October, 2019.

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

----Ss.302(b), 147 & 149---Criminal Procedure Code (V of 1898), S.342---Qatl-i-amd, rioting, unlawful assembly---Appreciation of evidence---Benefit of doubt---Examination of accused---Scope---Accused was charged that he along with co-accused persons committed murder of the son of the complainant by firing---Motive behind the incident was a dispute over landed property---Unnatural death of the deceased by receiving fire-arm injuries was resolved at the strength of medical evidence, however, that piece of evidence was never put to the accused; secondly, the motive for the offence mentioned in the FIR was supported by two witnesses in their statements, so much so, during the course of cross-examination specific suggestions regarding dispute over the landed property was put to the said witnesses by the defence, but motive was also not put to the accused while recording their statement under S.342, Cr.P.C. and thirdly, of-course, the accused remained fugitive from law i.e. absconder for long six years and the Trial Court treated the abscontion as a circumstance towards the guilt of the accused, but no question regarding abscontion was put to the accused---Trial Court thus committed incurable irregularity by not putting material evidence to the accused while examining the accused under S.342, Cr.P.C.---Appeal was allowed and the case was remanded to the Trial Court with direction to further examine the accused under S.342, Cr.P.C., by putting all the relevant pieces of evidence sought to be used against the accused.

Muhammad Shah v. The State 2010 SCMR 1009 rel.

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

----S.367(5)---Sentence, quantum of---Scope---If a charge against an accused provided for death penalty and was proved by the prosecution, in that case, the trial Court as per the mandate of section 367(5), Cr.P.C, had to impose death sentence, however, if the Court proposed any sentence other than the normal penalty, in that case, the trial Court was required to state reasons for the option of lesser punishment---Trial Court awarded lesser punishment by merely stating that "keeping in view the mitigating circumstances", without discussing a single reason or circumstance justifying the option of lesser punishment and thus, committed another material irregularity.

1991 SCMR 1622 rel.

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

----Ss.302(b), 147 & 149---Qatl-i-amd, rioting, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with his co-accused persons committed murder of the son of the complainant by firing---In the present case, despite clear observation of formation of unlawful assembly by the accused and other nominated accused and the commission of murder in prosecution of their common object, the co-accused was acquitted of the charge---Since, there was no appeal against acquittal of said co-accused and the judgment to the extent of said co-accused had attained finality, judgment to such extent remained in field---Appeal was allowed by setting aside convictions and sentences recorded by the Trial Court and case was remanded to the Trial Court with direction to further examine the accused under S.342, Cr.P.C., by putting all the relevant pieces of evidence sought to be used against the accused.

Mrs. Badshah Hashmat for Appellant.

Syed Sikandar Ali Shah for the Complainant.

Syed Meeral Shah Bokhari, Additional Prosecutor General, Sindh for the State.

2021 M L D 1725

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD BUX---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.05-K of 2019, decided on 2nd October, 2019.

(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts.3 & 4---Possessing intoxicant---Appreciation of evidence---Witnesses were not cross-examined---Effect---Prosecution case was that 100 kilograms of Bhang in five plastic bags was recovered from the donkey cart of accused---Record showed that the prosecution evidence hinged on testimonies of two Police Officials, both the prosecution witnesses were neither cross-examined nor the Trial Court put questions to them---From perusal of impugned judgment, it appeared that perhaps, the trial Judge did not bother to consider legal sanctity of cross-examination---Federal Shariat Court observed that cross-examination was the great legal engine invented for the discovery of truth---Cross-examination of eye witnesses was not an empty formality, but a valuable right and best method for ascertaining the truth---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts.3 & 4---Possessing intoxicant---Appreciation of evidence---Benefit of doubt---Prosecution case was that 100 kilograms of Bhang in five plastic bags was recovered from the donkey cart of accused---Record showed that accused was unrepresented before the Trial Court at the stage of recording of testimonies of prosecution witnesses and while recording his statement under S.342, Cr.P.C., as well---Even otherwise, the accused was not confronted to the report of Chemical Examiner in his statement recorded under S.342, Cr.P.C.---Accused was convicted solely on admission of guilt of commission of offence during his statement under S.342, Cr.P.C.---Admittedly, alleged narcotics had not been recovered from possession of the accused---To establish the ownership of recovered intoxicant exclusive or joint derivative contraband, a constructive or physical possession had not been ascertained---Occupancy with the intent to control it and legal consequences which flowed from the accusation of possession was evidence of ownership, which had never collected by the Investigating Agency nor the prosecution established ownership of recovered narcotic---Charge of possession of accused was defective---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in conviction.

Iftikhar Ahmed v. The State and others 2014 SCMR 7 rel.

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

----S.221---Charge, framing of---Object---Object of framing of charge is to enable the defence to concentrate its intention on a case that he had to meet---If the charge as framed was vague and necessary ingredients of the offences with which accused was held responsible, then the foundation of the case viz charge is not tenable in law.

Arshad Mehmood Anjum v. The State 2013 MLD 1068 rel.

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

----Art.133---Cross-examination---Scope---Cross-examination is not an empty formality of law but a valuable right---Cross-examination is a weapon which a person or an accused on his behalf wield for the purpose of testing of reality of the statement made by a witness.

Muhammad Jamal and others v. The State 2018 SCMR 141 rel.

(e) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts.3 & 4---Sindh Prohibition Rules, 1979, R.6---Possessing intoxicant---Appreciation of evidence---Report of Chemical Examiner---Safe custody of narcotics and its transmission to the Chemical Examiner---Scope---Prosecution case was that 100 kilograms of Bhang in five plastic bags was recovered from the donkey cart of accused---Perusal of Chemical Examiner Report revealed that five sealed white cloth parcels containing 500 grams of "Bhang" separately was received by Chemical Examiner and the samples were returned to the concerned police station---Chemical Examiner Report did not reflect that to whom the contraband intoxicant containing in the samples were returned---Said report also did not reflect that when the chemical examination of the said intoxicant was conducted by the Chemical Examiner---Not clear that after making the alleged recovery with whom the contraband intoxicant was lying for about four days---Rule 6 of Sindh Prohibition Rules, 1979 had been violated as the prosecution was bound to prove safe custody and establish secure transmission of samples to the office of Chemical Examiner---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Amjad Ali v. The State 2012 SCMR 577; Ikramullah and others v. The State 2015 SCMR 1002 and The State v. Imam Bakhsh and others 2018 SCMR 2039 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Benefit of doubt would go to the accused, regardless of fact whether he had taken any defence plea or not.

Muhammad Azam Zardari, Sammar Laghari and Imtiaz Ahmed Abro for Appellant.

Zafar Ahmed Khan, Additional Prosecutor General Sindh for the State.

2021 M L D 1886

[Federal Shariat Court]

Before Muhammad Noor Meskanzai, CJ, Dr. Syed Muhammad Anwer and Khadim Hussain M. Shaikh, JJ

MUHAMMAD IRSHAD---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.02-K and Criminal Murder Reference No.01-K of 2021, decided on 30th April, 2021.

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

----Ss.302(b), 364-A & 376---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, rape---Appreciation of evidence---Accused was charged for abducting the minor daughter of complainant, raping her and then murdering her---Prosecution elaborated the events of the case as they happened and their linked inter-se---Murder of a six years old baby girl after her rape happened in the month of Ramadan---Report of her missing was duly reported to the relevant Police Station without any delay by her father---Immediately, investigation started by the police---Baby girl was lastly seen reported to be talking to a person of that Mohallah along with a red-haired person ---Consequently, both the persons were arrested---Person with red hair/accused firstly confessed before police and took the police to the place of incident---Dead body of the deceased baby girl was recovered on his pointation---Post-mortem report clearly explained how the heinous and inhuman act of zina-bil-jabr was committed brutally with the baby girl before committing her murder---Subsequently, the accused confessed his crime before the Judicial Magistrate---Events as narrated by the accused in his confessional statement were fully corroborated by the facts mentioned in the post-mortem report and Medico-Legal Report---Chain of events was well connected and flawlessly explained the prosecution case leaving no space of doubt---Appeal against conviction was dismissed accordingly.

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

----Ss.302(b), 364-A & 376---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, rape---Appreciation of evidence---Confessional statement of accused, recording of---Accused was charged for abducting the minor daughter of complainant, raping her and then murdering her---Record showed that the confessional statement of accused was recorded under S.164, Cr.P.C., after fulfilling all the necessary legal requirement before the Judicial Magistrate, which made the case of prosecution clear and strong---Chain of events was well connected and flawlessly explained the prosecution case leaving no space of doubt---Appeal against conviction was dismissed accordingly.

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

----S.164---Confessional statement of accused---Scope---If the confession of accused was voluntary and true then it would be sufficient to convict accused.

Ghulam Qadir and others v. The State 2007 SCMR 782 rel.

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

----Ss.302(b), 364-A & 376---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, rape---Appreciation of evidence---Identification of accused by witnesses---Scope---Accused was charged for abducting the minor daughter of complainant, raping her and then murdering her---Identification parade of the accused was duly and properly conducted in which he was identified as the same person with whom the deceased girl was found moments before she went missing---Accused was identified by two witnesses in the court of Magistrate---Both of them duly identified him and signed the certificate of identification parade---Chain of events were well connected and flawlessly explained the prosecution case leaving no space of doubt---Appeal against conviction was dismissed accordingly.

Mrs. Aftab Bano for Appellant.

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

Ibad-ul-Hasnain for the Complainant.

2021 M L D 1924

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah, J

KATHOOR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.01-K of 2019, decided on 30th September, 2019.

(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts.3, 4 & 22---Criminal Procedure Code (V of 1898), S.103---Recovery of liquor---Appreciation of evidence---Benefit of doubt---Non-association of public witness---Issuance of search warrant---Scope---Prosecution case was that a drum containing 50 liters of liquor was recovered from the possession of accused---Record showed that despite having advance information of the occurrence, the police raiding party did not accompany any independent person of the locality, situated in a thickly populated area---For search of a family dwelling, neither they accompanied any lady police constable nor associated neighbourer of the locality, in violation of S.103, Cr.P.C.---Police also did not obtain any search warrant of dwelling in contravention of Art.22 of Prohibition (Enforcement of Hadd) Order, 1979---Provisions of S.103, Cr.P.C., were restricted to searches under Chap. VII of Cr.P.C applied to all recoveries made by the Police Officers, more particularly, search of dwellings---Accused persons had not been confronted to the Chemical Examiner's Report, thus Chemical Examiner's Report was ruled out of the consideration---Non-association of the inhabitants of the vicinity during search of a dwelling, particularly when there was advance information, besides alleged bitter acrimonious relations of accused persons with Nekmard of the locality, who was cast-fellow of the complainant, casted doubt on genuineness of charge sheet---Circumstances established that the prosecution had miserably failed to prove its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

1997 SCMR 1494; 2002 PCr.LJ 799; 2600 PCr.LJ 1812; 1997 PCr.LJ. 826; Tariq Pervaiz v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230; Faryad Ali v. The State 2008 SCMR 1086; Yasin Ali alias Ghulam Mustafa v. The State 2008 SCMR 336; Muhammad Razakue v. The State 2008 PCr.LJ 149; Muhammad Shah v. The State 2010 SCMR 1009; Sher Dil v. The State 1999 SCMR 697; Qaddan and others v. The State 2017 SCMR 148; Abdul Rashid v. State PLD 1975 Kar. 92; Ballia and others v. State 1985 SCMR 854; Nasarullah and another v. State 1977 PCr.LJ 132; Rahmat v. State PLD 1976 Lah. 1444; Muhammad Shafi and others v. State PLD 1987 SC 167; Muhammad Khan v. Dost Muhammad PLD 1975 SC 607; Afzal v. State 1983 SCMR 1; Niaz Muhammad alias Jaja and another v. State PLD 1983 SC (AJ&K) 211; Malik Aman v. State 1986 SCMR 17; Sultan and others v. State 1987 SCMR 1177; Khair Gul v. State 1989 SCMR 491 and State v. Abba Ali Shah PLD 1988 Kar. 409 ref.

Imtiaz alias Taj v. State 2018 SCMR 344; Qaddan and others v. The State 2017 SCMR 148 and Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating a reasonable doubt would be sufficient enough to extend benefit of doubt to the accused.

Mst. Asia Bibi v. State PLD 2019 SC 64 and Intekhab Ahmed Abassi v. State 2018 SCMR 495 rel.

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

----Art. 133---Cross-examination---Scope---Cross-examination, which is a weapon could be wielded for the purpose of testing the veracity of the statement made by a witness.

Muhammad Naeem Memon for Appellants.

Zafar Ahmed Khan, Additional Prosecutor General Sindh for the State.

2021 M L D 75

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

SAKHI REHMAT---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 273 of 2019, decided on 11th November, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 377, 377-B, 341 & 511---Un-natural offence, sexual abuse, wrongful restraint and attempt to commit offence---Bail, refusal of---Implication of accused in statements under S.161, Cr.P.C.---Scope---Prosecution case against accused was that he caught hold of the victim; removed his shalwar/trousers; was attempting to commit sodomy with the victim, who raised hue and cry, whereupon two persons rushed to the place of occurrence and the accused decamped from the place of occurrence---Accused was directly charged in the promptly lodged FIR with specific role of attempt to commit un-natural offence with victim child aged about 8 years---Child victim and two impartial eye-witnesses had fully implicated the accused in their statements recorded under S. 161, Cr.P.C.---Accused had failed to make out a case for grant of bail---Petition for grant of bail was dismissed, in circumstances.

Islam Uddin for Petitioner.

Deputy A. G. for the State.

2021 M L D 146

[Gilgit-Baltistan Chief Court]

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

BEHRAM KHAN---Petitioner

Versus

RESIDENTS OF PATIPURA through Representatives and 3 others---Respondents

Writ Petition No. 120 of 2019, decided on 24th October, 2019.

Civil Procedure Code (V of 1908)---

----O. XXVI, Rr. 9 & 10---Local Commission, report of---Scope---Petitioner assailed orders passed by courts below whereby his objection petition filed against the report submitted by Local Commission was concurrently dismissed---Validity---Commission was appointed on the joint request and consent of both the parties, therefore, no objections could be entertained---Commission had visited the site in question and had demarcated the suit land in presence of the parties---Commission report was a piece of evidence and its evidentiary value had to be considered by the Trial Court at the time of final disposal of the case along with other oral and documentary evidence---Writ petition, having no substance and merits, was dismissed.

Mohammad Saleem for Petitioner.

Sher Ahmed for Respondents.

2021 M L D 163

[Gilgit-Baltistan Chief Court]

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

SAJJAD HUSSAIN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 260 of 2018, decided on 19th September, 2019.

Penal Code (XLV of 1860)---

----Ss. 324, 114 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 21-H---Qanun-e-Shahadat (10 of 1984), Art. 38---Criminal Procedure Code (V of 1898), S. 265-K---Attempt to commit qatl-i-amd, abettor present when offence is committed, common intention, terrorism---Confession to police officer not to be proved---Appreciation of evidence---Accused assailed the dismissal of his application filed under S.265-K, Cr.P.C.---Accused was not directly charged in the FIR rather the FIR was lodged against unknown persons---No incriminating article was recovered from the possession of accused---Sole evidence against the accused was his confessional statement recorded under S.21-H of Anti Terrorism Act, 1997 and that too by the Superintendent of Police---Accused had retracted from the confessional statement and it had no evidentiary value as any confession made before the police was not admissible in evidence unless corroborated by other strong circumstantial evidence, which was lacking in the case---Role of accused was quite similar with the role of co-accused persons who had already been acquitted by the Trial Court, therefore, the accused was also entitled to be acquitted---Revision petition was allowed and the accused was acquitted of the charges, in circumstances.

Arshad for Petitioner/accused.

Dy. Advocate General for the State.

2021 M L D 362

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

GUL MURRAD and 2 others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.41, 49 and Criminal Revision No.26 of 2017, decided on 24th August, 2020.

Penal Code (XLV of 1860)---

----Ss.302(b), 34, 97 & 100---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Right of private defence of the body extending to cause death---Scope---Accused were charged for committing murder of brother of the complainant---Motive behind the occurrence was illicit relation of deceased with daughter of accused---Record showed that the deceased died because of a fatal blow, which was inflicted on his head by accused and a danda was later on recovered on his pointation from his house---Presence of co-accused had not been shown in site inspection report and no recovery had been effected from any of the co-accused---Presence of acquitted accused had not been shown in the site plan, however, entry into the house of accused by the deceased was not justified and the inmates of the house were fully justified to defend the privacy of their house---Final police report showed that the entry of deceased into the cattle shed was with ill intentions---Said facts remained completely unattended and it was the own case of the prosecution and prosecution could not back out from their version, because for all intent and purpose, the final police report was the gist of the prosecution case---Accused was well within his right to safeguard the privacy of Chadar and Chardewary---In such circumstances, case was one which squarely fell under S.302(c), P.P.C. and conviction under S.302(b), P.P.C., was not justified---Circumstances established that the prosecution failed to connect the co-accused with the alleged offence beyond any shadow of doubt---Appeal up to the extent of co-accused was allowed and they were acquitted by setting aside the conviction and sentences recorded by the trial court---Sentence/conviction of accused was altered from Ss. 302(b), P.P.C. to 302(c), P.P.C. and his sentence of imprisonment for life was reduced to ten years---Appeal was disposed of with said alteration in sentence.

1968 SCMR 18; 1993 PCr.LJ 1616; 1994 PCr.LJ 1901; 2008 PCr.LJ 1153 and 2011 PCr.LJ 357 ref.

PLD 2015 SC 77 rel.

Amjad Hussain for Appellant (in Criminal Appeal No.41 of 2017).

Raja Shakeel Ahmad for the Complainant.

Dy. Advocate General for the State.

Dy. A.G. for Appellant (in Criminal Appeal No.49 of 2017).

Amjad Hussain for Respondent/accused.

Dy. A.G. for the State (in Criminal Revision No.26 of 2017).

Amjad Hussain for Respondent/accused.

2021 M L D 413

[Gilgit-Baltistan Chief Court]

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

ASIF NASIR----Petitioner

Versus

The DEPUTY DIRECTOR NAB (R) SUB-OFFICE GILGIT----Respondent

Writ Petition No.209 of 2018, decided on 17th October, 2019.

National Accountability Ordinance (XVIII of 1999)---

-----S.23---Government of Gilgit-Baltistan Order, 2018, Art.86---Transfer of property---Scope---National Accountability Bureau issued notification under S.23 of the National Accountability Ordinance, 1999, stating therein that the transfer of title or interest or creation of charge on the properties in the name of benamidar of accused shall be void while the inquiry/investigation proceedings were pending before the National Accountability Bureau or Accountability Court---Petitioner challenged the notice before the Accountability Court through an application, which was dismissed---Validity---Chief Court observed that since the petitioner had claimed that he had purchased the land from his own independent means and sources and the same land had been transferred in his name, therefore, it was appropriate to afford him an opportunity to prove his claim by producing evidence before trial Court---Writ petition was partially allowed and the case was remanded to the Trial Court with direction to provide opportunity of producing evidence to the petitioner.

Raja Shakeel Ahmed for Petitioner.

Amin Khan, Special Prosecutor NAB for Respondent.

2021 M L D 429

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J and Ali Baig, J

RASHID AHMED----Petitioner

Versus

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

Writ Petition No.194 of 2019 along with Civil Miscellaneous No.380 of 2019, decided on 12th October, 2020.

National Accountability Ordinance (XVIII of 1999)---

----S.27---Information, seeking of---Petitioner was government official and National Accountability Bureau (NAB) authorities asked his department to provide his complete personal and asset details under S.27 of National Accountability Ordinance, 1999---Validity---Information was just required to verify complaints submitted against petitioner before NAB---Petitioner was not called in person to investigate the matter---Competent authority under S.27 of National Accountability Ordinance, 1999, had exclusive right to seek assistance and information from any department---Every department / institution had its own domain of jurisdiction to exercise its vested powers under the Constitution or through any special law and interference to limit powers of any department / institution could create legal complications and could arise a situation of embarrassment for all---National Accountability Bureau under S.27 of National Accountability Ordinance, 1999, was competent to get detailed information about petitioner, which was not illegal and beyond his vested powers---Chief Court declined to interfere in the matter---Writ petition was dismissed, in circumstances.

2013 PCr.LJ 974; 2018 MLD 1326; PLD 1971 SC 677; 2019 MLD 1469 and 2003 YLR 701 ref.

Raja Shakeel Ahmed for Petitioner.

Muhammad Amin Khan, Special Prosecutor NAB for Respondents Nos.2 and 3.

Assistant Advocate General assisted by Zakaria Ahmed, L.A. for Respondents Nos.1, 4 and 5.

2021 M L D 447

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

SHER ZAMAN and 5 others----Appellants

Versus

KARIMULLAH BAIG and 7 others----Respondents

C.F.A. No.35 of 2018, decided on 16th September, 2019.

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

----Ss.42, 54 & 39---Suit for declaration, permanent injunction and cancellation---Scope---Plaintiff filed suit for declaration, permanent injunction and cancellation of mutations claiming therein that one of the defendants prepared fake power of attorney and sold out the disputed land to the other defendants---Trial Court dismissed the suit---Validity---Plaintiffs did not produce even a single oral or documentary evidence in the Trial Court except recording of the statement of one plaintiff, who produced the alleged fake general power of attorney---Defendants, on the other hand, had produced reliable, convincing and cogent oral as well as documentary evidence in the Trial Court to rebut the claim of the plaintiffs---No mis-reading or non-reading of evidence was pointed out by the plaintiffs---Appeal was dismissed.

2004 CLC 1010 and PLD 2003 Pesh. 49 ref.

(b) Administration of justice---

----Plaintiff must prove his case on the strength of his own evidence and cannot take advantage of the shortcoming of defendant's case.

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

----Art.117---Burden of proof---Scope---Person, who asserts/alleges a particular fact and wants the court to believe that such fact exists, is required to prove the existence of such a fact.

Muhammad Sahfi and Didar Aman Shah for Appellants.

Additional Advocate General for Respondents Nos.4, 5 and 8.

Manzoor Hussain for Private Respondents.

2021 M L D 585

[Gilgit-Baltistan Chief Court (Skardu Bench)]

Before Malik Haq Nawaz, CJ and Ali Baig, J

Khawaja MOHAMMAD QASIM through L.Rs. ----Appellants

Versus

ARIF ASLAM KHAN and 2 others----Respondents

C.F.A. No.1 of 2016, decided on 25th September, 2020.

Civil Procedure Code (V of 1908)---

----O.XX, R.5---Judgment---Issue-wise findings---Scope---Suit filed by plaintiffs was partially decreed by Trial Court in his favour while counter suit filed by defendant was completely decreed---Plea raised by plaintiffs was that Trial Court did not record issue-wise findings---Validity---Under mandatory provisions of O.XX, R.5, C.P.C. judgment should contain findings on all issues separately but Trial Court did not bother to discuss issues separately---Trial Court discussed many issues together and recorded common findings on many issues, which was an illegality and was in contravention of mandatory provision of O.XX, R.5, C.P.C.---Civil Court was bound to strictly follow provisions of Civil Procedure Code, 1908, in letter and spirit and to save wastage of time which was to take place on account of its aberration---Chief Court set aside judgments and decrees passed by Trial Court as the same were result of material irregularity and illegality---High Court directed Trial Court to rewrite judgments and case was so remanded---Appeal was allowed, in circumstances.

Muhammad Nazir for Appellants.

Additional Advocate General assisted by Hafiz Abdul Razzaq for Respondent.

2021 M L D 783

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, CJ and Ali Beg, J

Syed AKHTAR HUSSAIN SHAH---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman, Islamabad and 3 others---Respondents

Writ Petition No.114 of 2020, decided on 24th August, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a) & 9(b)---Government of Gilgit Baltistan Order, 2018, Art.86(2)---Pre-arrest bail, grant of---Prima facie case---Proof---Petitioner was alleged to have misused his authority and gained illegal pecuniary advantages---Validity---Complaint was based on personal motives and sinister designs of complainant, who neither provided any documentary evidence in support of his allegations nor National Accountability Bureau (NAB) succeeded to extract any incriminating material---Mere simple application containing frivolous and baseless allegations against honest officer, could not be used as tool to arrest and victimize him to fulfil vicious ends of motivated complainant in absence of confidence inspiring evidence---Pre-arrest bail was allowed, in circumstances.

AIR 2011 SC 312; Khawaja Salman Rafique and others v. Chairman NAB and others PLD 2020 SC 456; 2007 PCr.LJ 1515; 2007 PCr.LJ 1957; 2008 SCMR 1012; 1994 SCMR 1299; PLD 2011 SC 1144; PLD 2016 SC 276; 2011 SCMR 985; PLD 2001 SC 607; PLD 2001 SC 419; 2010 PCr.LJ 1311; Syed Hadi v. NAB and others 2018 PCr.LJ 231 and 2018 SCMR 18 rel.

Dil Muhammad Khan Alizai and Khursheed-ur-Hassan for Petitioner.

Muhammad Amin Khan, Special Prosecutor NAB for Respondents.

2021 M L D 955

[Gilgit-Baltistan Chief Court (Skardu Bench)]

Before Ali Baig, J

GHULAM HAIDER---Petitioner

Versus

MOHAMMAD and 3 others---Respondents

Civil Revision No.27 of 2019, decided on 22nd September, 2020.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for declaration and injunction---Revisional jurisdiction of Chief Court---Concurrent findings of facts by two Courts below---Plaintiff/petitioner claimed to be owner of suit land and alleged that defendant/respondent was just a tenant---Trial Court and Lower Appellate Court concurrently dismissed suit and appeal filed by plaintiff/petitioner---Validity---Scope of appeal was wider than revision, as revisional jurisdiction was supervisory jurisdiction---Chief Court/High Court in exercise of powers under S.115, C.P.C. could only interfere when Courts below had failed to exercise their jurisdiction so vested or exceeded their jurisdiction or committed material irregularity or illegality---Revisional jurisdiction could not be exercised even when findings were erroneous or wrong---Chief Court/High Court by exercising revisional jurisdiction could not disturb concurrent findings arrived at by Courts below in proper exercising of jurisdiction vested in the Courts upon proper appreciation of evidence on record---Chief Court declined to disturb concurrent findings of two Courts below as the same were not perverse--- Revision was dismissed, in circumstances.

Mohammad Saleem and Liaqat Ali Azmi for Petitioner.

2021 M L D 992

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, CJ

UMER KHAN---Petitioner

Versus

REHMAT ULLAH and another---Respondents

Criminal Miscellaneous No.323 of 2019, decided on 19th June, 2020.

Criminal Procedure Code (V of 1898)---

---S.497(5)---Penal Code (XLV of 1860), Ss. 494, 496, 496-B, 511 & 34---Marrying again during lifetime of husband or wife, marriage ceremony fraudulently gone through without lawful marriage, fornication, common intention---Bail, cancellation of---Scope---Accused was alleged to have enticed away his sister-in-law for the purpose of marriage---Sessions Judge allowed the petition for grant of bail---Complainant sought cancellation of bail granted to the accused on the ground that he was directly nominated in the FIR and had committed an unlawful act which was against the Injunctions of Islam and also against the norms of society---Held; complainant had failed to point out any legal infirmity in the impugned order---No case for cancellation of bail was made out---Petition for cancellation of bail was dismissed, in circumstances.

Tanveer Akhtar for Petitioner.

2021 M L D 1129

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, CJ and Ali Baig, J

NADIR HUSSAIN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.109 of 2020, decided on 29th June, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, grant of---Non-availability of report of Chemical Examiner---Non-submission of challan---Effect---Accused was alleged to have been found in possession of 12500 grams of charas---Report of Chemical Examiner was awaited and without the same no expert opinion could be rendered---Non-submission of challan within mandatory period of 17 days had further made the case as one of further inquiry---Accused was admitted to bail, in circumstances.

Burhan Wali for Petitioner.

Dy. Advocate General for the State.

2021 M L D 1295

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, CJ

KAREEM ULLAH and 3 others----Petitioner

Versus

The STATE----Respondent

Criminal Miscellaneous No.81 of 2020, decided on 3rd June, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 427, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, abetment, common intention---Bail, grant of---Further inquiry---Night-time occurrence---Accused persons were alleged to have fired at the complainant party as a result of which one of them died and another got injured---Eye-witnesses had supported the prosecution version---Real son of the complainant who was also an eye-witness of the occurrence had stated that due to darkness he could not identify the assailant---Statement of said witness, who was a natural witness of the occurrence, had brought the case of the accused persons within the ambit of further inquiry---Question as to who was to be believed and who was not to be believed would be determined at the time of trial after recording pro and contra evidence---Accused persons were admitted to bail, in circumstances.

Sher Alam for Petitioner.

Dy. A.G. for the State.

2021 M L D 1319

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

ZIA-UD-DIN---Petitioner

Versus

MIR MOHAMMAD KHAN and 5 others---Respondents

Criminal Miscellaneous No.18 of 2020, decided on 13th March, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Bail, cancellation of---Allegation against the accused persons was that they committed murder of the brother of complainant on the suspicion that the deceased had illicit relations with the sister of accused persons---Accused persons were directly charged in the FIR with specific role---Motive behind the occurrence was disclosed in the FIR---Weapons of offence i.e. 30 bore pistol, its empty shells and sticks/sotas were recovered on the indication of accused persons in the presence of independent marginal witnesses---Trial Court had granted bail to the accused persons for the reason that the police had arrested them without prima facie evidence of unnatural death of the deceased---Tentative assessment of facts available on record had to be made and the act of sifting the evidence collected by the prosecution was neither permissible nor advisable at bail stage for the sake of fair and just administration of criminal justice---Accused persons were prima facie connected with the commission of offence of murder---Trial Court had granted bail in favour of the accused persons on the flimsy grounds and in a hasty manner---Petition for cancellation of bail was accepted, in circumstances and bail granted to accused was cancelled.

Amjad Hussain for Petitioner.

Muzaffar-ud-Din and Mian Naseem Akhtar for Respondents Nos.1 to 5.

Deputy Advocate General for Respondent No.6/State.

2021 M L D 1584

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, CJ

Mst. GULZAR---Petitioner

Versus

Mst. SITARA BEGUM and 13 others---Respondents

Revision Petition No.117 of 2020, decided on 25th November, 2020.

Civil Procedure Code (V of 1908)---

----S. 114---Limitation Act (IX of 1908), Art.173---Review petition, filing of---Limitation---Judgment/order impugned passed in presence of counsel for petitioner---Effect---Petitioner, despite having the knowledge of judgment/order owing to presence of her counsel, had preferred the review petition before the Appellate Court after lapse of almost three years and ten months---Limitation to file a review petition was provided as only ninety(90) days under Art. 173 of Limitation Act, 1908, hence review petition of the petitioner was time-barred---Appellate Court had rightly appreciated the law and available materials which did not call for interference by the Chief Court---Revision petition was dismissed, in circumstances.

Naveed Hussain for Petitioner.

Johar Ali for Respondents.

2021 M L D 1739

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

123 HOUSEHOLD EHLIYAN-E-PATI DECHY, SHOUGROOT AND HOPUK, through

Representatives and 8 others---Petitioners

Versus

Late MOLVI YAQEEN SHAH through L.Rs.---Respondents

Civil Miscellaneous No.255 of 2020, decided on 4th September, 2020.

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

----O.I, R.10---Court may strike out or add parties---Scope---Respondents filed suit for asserting their right to cultivate the land through the disputed water channel---Petitioners during pendency of revision petition before the High Court filed an application under O.I, R.10, C.P.C., for impleading of Provincial Government and Collector as defendants in the suit---Validity---Disputed land for which water from the concerned channel was required was Khalisa Sarkar---Respondents were shown as tenants of Government, thus Provincial Government and Collector were necessary parties to the suit and without impleading them no effective decree could be passed by the Courts---Application under O.I, R.10(2), C.P.C., was accepted, in circumstances.

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

----O.I, R.10---Court may strike out or add parties---Scope---All the parties necessary to the suit should be joined and in case they are omitted the suit is bad for non-joinder and no effective decree in such circumstances can be passed.

Johar Ali for Petitioners/defendants.

Aurangzeb Khan for Respondents/plaintiffs.

2021 M L D 1759

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, CJ

RASOOL (DECEASED) through L.Rs. and 6 others---Petitioners

Versus

JANO and 10 others---Respondents

Civil Revision No.37 of 2015, decided on 22nd September, 2020.

Islamic Law---

----Inheritance---Shia faith---Plaintiff was uterine brother of the grandson of original owner whereas defendant was real daughter of the original owner---Plaintiff had earlier occupied the suit land and after long litigation between the parties, the defendant had succeeded to take possession of the land after obtaining a court decree---Defendant was real daughter of the original owner and was entitled to inherit the legacy of her father---Parties to the suit belonged to Shia faith and under the Shia law of inheritance the nearer legal heir of the deceased excluded the remorter legal heir---Both the courts below had passed the impugned judgment after proper appreciation of the material available on record, therefore, the concurrent findings could not be interfered with---Revision petition, being meritless, was dismissed.

Muhammad Sher Baz for Petitioners.

Muhammad Ali Khan and Abdul Rahim for Respondent No.1.

2021 M L D 1804

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz CJ

AHLIYAN-E-KHALTI through Representatives---Petitioner

Versus

SHAMSHER KHAN and others---Respondents

Civil Revision Petition No.210 of 2019, decided on 25th November, 2020.

Civil Procedure Code (V of 1908)---

----Ss.115 & 47---Revision---Questions to be determined by the Court executing decree---Concurrent findings of fact---Scope---Petitioner assailed the concurrent dismissal of his objection petition filed under S.47 of the Code of Civil Procedure---Petitioner, in his application, had averred that although a declaration had been made by the Court but that was in respect of another property and the respondent/decree-holder was occupying the property other than that was decreed---Validity---Question of title was no longer disputed between the parties as the declaration sought by the respondent had been granted---Point raised by the petitioner had already been decided against him in the suit as well as in the first appeal, therefore, the present petition in the present form was not competent---High Court had very limited jurisdiction to disturb the concurrent finding of facts recorded by the courts below, unless it was proved that the same suffered from any jurisdictional defect/error or were based on misreading or non-reading of materials available on file, which elements were conspicuously lacking in the present petition---Revision petition was dismissed, in circumstances.

Najeeb Ullah and Rehman Ali for Petitioners.

Arif Nazir for Respondent Set No.1.

Additional Advocate General for Respondent Set No.2.

2021 M L D 1921

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUHAMMAD JAN and 2 others---Petitioners

Versus

AMAN ULLAH---Respondent

Review Petition No.616 of 2019, decided on 9th September, 2020.

Civil Procedure Code (V of 1908)---

----S.114---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Review petition---Regular performance of judicial acts---Scope---Petitioners sought review of order passed by the High Court whereby they were directed to maintain status quo till final disposal of the suit pending before the Trial Court---Contention of petitioners was that the Court after hearing the arguments had verbally ordered that the suit land shall not be further alienated to any other person while the possessor of the suit land if willing to construct building could construct building on his own risk or cost but while writing the impugned order Chief Court had just granted status quo in favour of the respondent---Validity---Chief Court had categorically directed the parties to maintain status quo till final disposal of the suit and presumption of truth was attached to the order of the Court---Review petition was not competent where neither any new and important evidence was disclosed nor any mistake or error was apparent on the face of record---Petitioner had failed to make out a case for review of the impugned order---Review petition was dismissed.

Zahid Ali Baig for Petitioners.

Muhammad Sabir for Respondent.

2021 M L D 1976

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, CJ and Ali Baig, JJ

UMER KHAN---Petitioner

Versus

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

Writ Petition No.98 of 2019, decided on 30th November, 2020.

Civil Procedure Code (V of 1908)---

----O.XVI, Rr.1 & 2---Party failing to submit list of witnesses--- Effect---Petitioner/plaintiff contended that the Appellate Court had wrongly maintained the order of dismissal passed by Trial Court on his application filed under O.VI, R.1 of Civil Procedure Code, 1908---Held, that though under the provisions of O.XVI, R.2 of Civil Procedure Code, 1908, a party should not be permitted to call witnesses other than those contained in the list except with the permission of the Court, however, the Court had ample powers to allow the petitioner to call witnesses other than witnesses contained in the previous list---Valuable right of the parties needed to be agitated upon merits rather than dismissing the matter on technical grounds ---No prejudice, in the present case, was likely to be caused to the respondents (defendants) if the application filed under O.XVI, R.1, C.P.C., by the petitioner was allowed by the Trial Court as the suit of the petitioner(plaintiff) was at initial stage; and the Trial Court might arrive at a fair and correct conclusion after recording of evidence of both the parties---Chief Court allowed the application filed under O.XVI, R.1, C.P.C., by the petitioner subject to payment of costs to be paid to the respondents by the petitioner---Constitutional petition was allowed, in circumstances.

Rashid Umer for Petitioner.

Additional Advocate General for Respondents.

2021 M L D 8

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

MUHAMMAD KABIR KHAN and another---Petitioners

Versus

INSPECTOR GENERAL OF POLICE OF AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 9 others---Respondents

Writ Petition No. 2001-A of 2015, decided on 17th September, 2020.

(a) Azad Kashmir Prevention of Corruption Act, 1950---

----S. 5---Azad Jammu and Kashmir Anti-Corruption Establishment Rules, 1997, Rr. 6 & 7---Criminal misconduct---Preliminary inquiries and investigations against public servants---Initiation of preliminary inquiries against public servants---Scope---Petitioners sought initiation of legal action against an Assistant Sub-Inspector of Police (ASI) and his subordinate officials on the ground that the ASI got lodged an FIR against unknown thieves; that the petitioners were taken into police custody, were tortured and that the police party obtained illegal gratification---Director, Anti-Corruption, after recording the statements of the concerned, had consigned the complaint to record on the ground that the person who had given gratification had died---Held that death of a witness did not exonerate an offender from the liability, provided sufficient evidence was available on record---Director, Anti-Corruption, just to save the concerned police officials, had put the whole implicating material in the bin, which was not warranted by the law---Writ petition was accepted and the Director, Anti-Corruption was directed to register FIR in the light of the complaint and submit challan to the competent court.

(b) Administration of justice---

----Justice must be done to all and sundry without any discrimination---All the state subjects are equal before the law and nobody is above the law.

Khawaja Shoukat Hussain Ganai for Petitioners.

2021 M L D 195

[High Court (AJ&K)]

Before Ch. Muhammad Munir and Raza Ali Khan, JJ

JABIR HUSSAIN alias BABAR BUTT---Appellant

Versus

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

Criminal Appeal No. 39 of 2020, decided on 2nd June, 2020.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51---Possession of narcotics---"Bail not to be granted in respect of certain offences"---Scope---Bail, refusal of---Positive report of Chemical Examiner---Scope---Accused was alleged to have been found in possession of 5 kilograms of charas---Accused was directly charged in the FIR---Sample so separated from the recovered contraband was examined by Chemical Examiner, whose positive report was available on file---Offence under S.9(c), Control of Narcotic Substances Act, 1997, not only fell within the prohibitory clause of S. 497, Cr.P.C., but also came under S.51 of Control of Narcotic Substances Act, 1997, wherein a specific embargo was imposed on grant of bail---No reasonable grounds existed for believing that the accused was not involved in the alleged offence---Appeal against bail declining order was dismissed, in circumstances.

2010 PCr.LJ 611; 2009 PCr.LJ 1334 and 2009 PCr.LJ 1340 distinguished.

2011 PCr.LJ 1593; 2010 SCMR 1791 and 2011 SCMR 460 ref.

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

----S. 51---Criminal Procedure Code (V of 1898), Ss. 497 & 498---"Bail not to be granted in respect of certain offences"---Scope---Section 51 of Control of Narcotic Substances Act, 1997 makes drastic departure from conventional canon of Ss.497 & 498, Cr.P.C.---Power to grant bail under the Code of Criminal Procedure, 1898 should necessarily be subjected to conditions mentioned in S. 51 of Control of Narcotic Substances Act, 1997---Court has to keep in mind that the Control of Narcotic Substances Act, 1997, is a special enactment and has been enacted with a view to making stringent provisions for control and regulation of operation relating to narcotic substances---Court, before releasing accused on bail, has to satisfy itself that there are reasonable grounds for believing that the accused is not involved in such offence.

(c) Administration of justice---

----Precedent---Decisions in criminal cases, reliance on---Scope---Each case especially criminal case depends on its own facts and close similarity in one case and in another case is not possible because circumstantial flexibility on additional or different facts may make a world of difference between conclusions in two cases---Disposal of cases by blindly placing reliance on decision is not proper.

Saqib Mehmood Abbasi for Appellant.

2021 M L D 559

[High Court (AJ&K)]

Before Chaudhry Khalid Yousaf, J

Ch. NAZAKAT HAYYAT---Petitioner

Versus

Ch. SIRAJ-UL-HAQ and another---Respondents

Criminal Revision Petition No.59 of 2020, decided on 30th May, 2020.

Criminal Procedure Code (V of 1898)---

----Ss.265-F & 493---Right of evidence of prosecution, closure of---Counsel privately engaged to be under direction of Public Prosecutor---Complainant filed application through counsel privately engaged for abandonment of the evidence of certain prosecution witnesses, which was accepted---Scope---Under S.493, Cr.P.C., Public Prosecutor had a leading role in the prosecution of criminal cases and private counsel for complainant would act under his instructions---Wisdom of the Legislature behind S.493, Cr.P.C., was to provide justice by fair trial without favour to either party---Counsel privately engaged on behalf of the complainant would definitely represent interests of his client and paramount consideration before him would be the interests of his client and he would defiantly strive for conviction---Interests of the State were not identical with the interests of a private complainant---State would stand not necessarily for conviction but for justice---Public Prosecutor being incharge of the prosecution was responsible for conducting the prosecution of criminal case and was empowered to choose as to which witnesses were to be produced or to be given up as unnecessary---Privately engaged counsel would conduct the prosecution under his instructions---In the present case, Public Prosecutor opposed the submission made by the private counsel for complainant for giving up the witnesses---Discretion lay with the prosecution to examine the witnesses and prosecution was not bound to produce each and every witness cited in the calendar of witnesses---Proposition involved in the case was that who would lead the prosecution and take such decisions---Public Prosecutor being incharge prosecution officer alone had the authority to take such decisions---In the present case, Public Prosecutor appearing on behalf of the state opposed the submission of private counsel for complainant to give up the official witnesses and being incharge of the prosecution, the prosecution witnesses could not be abandoned without his consent---Impugned order was set-aside and Trial Court was directed to summon the official witnesses and record their statements as per law---Revision petition was disposed of accordingly.

1981 SCMR 294; PLD 2013 Sindh 214; PLD 2008 Pesh. 100; 2006 YLR 2178; 2017 PCr.LJ 731 and 1997 PCr.LJ 1727 ref.

1969 PCr.LJ 1058 and PLD 2013 Sindh 214 rel.

Khalid Rasheed Ch. for Petitioner.

Abdul Wahid Aamir for Respondent No.1.

2021 M L D 594

[High Court (AJ&K)]

Before Azhar Saleem Babar, ACJ and Muhammad Sheraz Kiani, J

USMAN and another----Applicants

Versus

The STATE and others----Respondents

Criminal Miscellaneous No.36 of 2020, decided on 9th September, 2020.

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

----S.426---Penal Code (XLV of 1860), Ss.302, 394, 341, 201, 204, 109 & 34---Qatl-i-amd, voluntarily causing hurt in committing robbery, Wrongful restraint, causing disappearance of evidence of offence or giving false information to screen defenders, destruction of document to prevent its production as evidence, abetment, common intention---Application for suspension of sentence---Scope---Petitioners convicted under S.302, P.P.C. and sentenced to life imprisonment had sought suspension of their sentence---Validity---Period of more than two years had expired and the appeal had not been decided so far without any fault of the convicts-petitioners---Investigation and evidence showed that both the convicts made premeditation for the purpose of robbery and waited for the deceased to appear at the place of occurrence---Both accused were armed with 30-bore pistols and they shot repeated fires in order to take the life of the deceased, so said brutal acts of the convicts-applicants disentitled them to concession of bail on statutory ground and they appeared to be desperate and dangerous criminals---Impugned judgment seemed to be based upon evidence and the convicts-applicants, prima facie, appeared to be connected with the offence they were convicted for---Nothing had been pointed out which might create a serious doubt on the face of the record---Application, for suspension of sentence having no force, was dismissed in circumstances.

Muhammad Shahbaz v. The State and others 2013 PCr.LJ 45 rel.

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

----S.426---Suspension of sentence---Circumstantial evidence---Scope---Mere conviction of an accused on circumstantial evidence did not make out a case for suspension of sentence awarded by a competent court of law after full trial of the case, provided the same rang true and connected all the events in a chain.

(c) Criminal trial---

----Circumstantial evidence---Scope---Circumstantial evidence was as good as any other evidence, if the same was cogent and confidence inspiring.

Abdul Aziz Ratalvi for Applicants.

Additional Advocate General for the State.

2021 M L D 15

[Islamabad]

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

Mst. MURSHIDA KHATOON---Appellant

Versus

Ch. ABDUL REHMAN SAHI and another---Respondents

R.F.A. No.139 of 2013, decided on 6th August, 2019.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Balance consideration amount, non-deposit of---Token money, return of---Plaintiff entered into oral agreement with defendant to sell her plot in question for which he had paid token money of Rs.200,000/---Plaintiff instead of payment of balance consideration amount, filed suit---Trial Court decreed the suit in favour of plaintiff---Validity---After filing of suit for specific performance, plaintiff did not apply to Trial Court for deposit of remaining sale consideration, therefore, suit could not have been decreed in favour of plaintiff---Defendant submitted application to the Housing Foundation for transfer of suit property in favour of plaintiff, wherein it was acknowledged by her that she had received an amount of Rs.200,000/- as token money---Defendant did not issue any notice to plaintiff requiring him to come up with remaining sale consideration in order to complete sale transaction---No notice on record from defendant warning plaintiff that in the event the latter did not complete the transaction by paying remaining sale consideration, token money would be forfeited by her---In absence of such notice, defendant was not justified to retain amount of Rs.200,000/- paid to her as token money---Plaintiff was bound to return the amount along with markup---High Court set aside judgment and decree passed by Trial Court in favour of plaintiff---Appeal was allowed, in circumstances.

Hamood Mehmood v. Mst. Shabana Ishaq 2017 SCMR 2022 rel.

Muhammad Wajid Hussain Mughal for Appellant.

Ali Jamal Salis Khawaja for Respondent No.1.

Ms. Sitwat Jehangir for Respondent No.2.

2021 M L D 40

[Islamabad]

Before Ghulam Azam Qambrani, J

FARRUKH IMTIAZ KHOKHAR---Appellant

Versus

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

Criminal Appeal No. 86 of 2020, decided on 4th September, 2020.

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

----Ss. 6, 7, 11-B, 11-D, 11-EE & Fourth Sched.---Member of proscribed organization---Proscription of a person---Pre-conditions---Appellant was aggrieved of placing his name in list maintained under Fourth Sched. to Anti-Terrorism Act, 1997---Validity---For the purpose of proscription of a person, the State was to demonstrate that the person was involved in cases under Ss. 6 & 7 of Anti-Terrorism Act, 1997, or was an office bearer, activist or associate with an organization notified in terms of S. 11-B of Anti-Terrorism Act, 1997 for proscription of organization by Federal Government or was member of such organization which was under observation in terms of S. 11-D of Anti-Terrorism Act, 1997, or he was involved in terrorism or sectarianism---Authorities failed to place on record any material to show that appellant was a member of proscribed organization or involved in terrorist funding---Authorities failed to justify any ground which made the basis of ex-parte notification for placing name of appellant under S. 11-EE of Anti-Terrorism Act, 1997 in Fourth Sched. attached thereto---High Court directed the authorities to remove name of appellant from the list and set aside the notification issued in such regard---Appeal was allowed in circumstances.

Province of Punjab and another v. Muhammad Rafiq and others PLD 2018 SC 178; Ghulam Hussain and others v. The State and others PLD 2020 SC 61; Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2011 SCMR 408; Capital Development Authority through Chairman and another v. Mrs. Shaheen Farooq and another 2007 SCMR 1328; Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230 and Ismaeel v. The State 2010 SCMR 27 rel.

Syed Zahid Hussain Bukhari and Tanveer Iqbal for Petitioner.

Ch. Abdul Jabbar, AAG, Zohaib Hassan Gondal with Qasim Niazi DSP/SDPO, Asjad Mehmood SHO, Police Station Koral, Mumtaz Baig Sub- Inspector and Qasim Khan- Inspector for Respondents.

2021 M L D 67

[Islamabad]

Before Lubna Saleem Pervez, J

Messrs OIL AND GAS DEVELOPMENT COMPANY LTD.--Appellant/Plaintiff.

Versus

Messrs ADMORE GAZ (PVT.) LTD.---Respondent/Defendant

F.A.O. No.58 of 2015, decided on 17th September, 2020.

Arbitration Act (X of 1940)---

----S. 20(4)---Civil Procedure Code (V of 1908), O.V. R.20---Arbitration proceedings---Service of process---Procuring attendance---Appellant was aggrieved of recalling of ex parte proceeding order by Trial Court on the ground that all modes of service were not applied before invoking extraordinary mode of service---Validity---Extraordinary mode of effecting service should be the last resort of Trial Court when it was satisfied and had reasons to believe that other mode of service of notice on respondent were either no possible or respondent was avoiding receipt of notice---Service of notice on respondent was essential requirement of law to ensure attendance of parties to participate in proceedings so as to arrive at just and impartial conclusion as important rights of parties were involved in the matter---To adopt all modes of effecting service prescribed under law were mandatory and unless and until it was finally determined through various modes of service that there was no possibility of appearance of party to proceed with the matter, ex parte proceedings should not be commenced---High Court declined to interfere in the order withdrawn by Trial Court---Appeal was dismissed, in circumstances.

Pak Turk Enterprises (Pvt.) Ltd. v. Turk Hava Yollari (Turkish Airlines Inc.) 2015 CLC 1; Mst. Rasheedan Bibi v. Abdul Razzaq 2018 MLD 19; Mst. Rasheedan Bibi v. Abdul Razzaq 2019 YLR 602; Major Muhammad Nouman v. Usman Habib PLD 2019 Isl. 255; Ismail v. Razia Begum 1981 SCMR 687; Province of Punjab v. Muhammad Sharif PLD 1990 Lah. 208; Shadoo Muhammad Khan v. Ganmoon and 2 others 1989 MLD 4624 and Javed Raza v.Razi Ahmad 1991 MLD 2602 ref.

Saad M. Hashmi for Appellant/Plaintiff.

Rai Azhzar Iqbal Kharal for Respondent/Defendant.

2021 M L D 235

[Islamabad]

Before Athar Minallah, CJ

ISLAMABAD MARQUEES, CATERING AND BANQUET HALL ASSOCIATION (IMCBA) through Chairman ---Petitioner

Versus

FEDERATION OF PAKISTAN, through Deputy Director, (Operations), National Command and Operation Centre (NCOC) and 3 others---Respondents

Writ Petition No.3383 of 2020, decided on 18th November, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition--- Public policy---Petitioner was an Association of Marquees, Catering and Banquet Halls owners who assailed notification issued by government imposing ban on indoor marriages due to precautionary measures taken for Covid-19 Pandemic---Validity---Courts exercise restraint in matters of Government policies except when it can be shown that fundamental rights have been violated--- Policy making is within the exclusive domain of the Executive and interference in such domain is not function of High Court--- Decisions of authorities were binding and not justiciable by a judicial forum---Every citizen and public functionary throughout Pakistan, Azad Jammu and Kashmir Territory and Gilgit/Biltistan Region was to implement and facilitate implementation of decision taken by authorities in letter and spirit--- Any breach was likely to expose a citizen or a public functionary to legal consequences, civil as well as criminal--- High Court declined to interfere with the decisions of authorities because it could expose public at large to irreparable harm---Constitutional petition was dismissed, in circumstances.

Engineer Iqbal Zafar Jhagra and Senator Rukhsana Zubairi v. FOP and others 2014 SCMR 220; OGRA through Secretary v. Messrs Midway II, CNG Station and others 2014 PTD 243; Secretary Economic Affairs Division, Islamabad and others v. Anwar ul Haq Ahmad and others 2013 SCMR 1687; Dossani Travels (Pvt.) Ltd. and 4 others v. Messrs Travels Shop (Pvt.) Ltd. and others 2013 SCMR 1749; Punjab Public Service Commission and another v. Mst. Ayesha Nawaz and others 2011 SCMR 1602 and Wattan Party through President v. FOP through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697 rel.

Sardar TaimoorAslam Khan for Petitioner.

Khalid Javed Khan, Attorney General for Pakistan.

Tariq Mehmood Khokhar, Additional Attorney General.

Syed Muhammad Tayyab, Deputy Attorney General.

Saqlain Haider Awan, Assistant Attorney General.

2021 M L D 264

[Islamabad]

Before Aamer Farooq, J

KHALID MEHMOOD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, WEST ISLAMABAD and 2 others---Respondents

Writ Petition No.2836 of 2020, decided on 10th November, 2020.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.1, 2 & O.XXXVIII, Rr.1, 9---Suit for recovery of money---Leave to appear and defend the suit--- Filing of application by defendant--- Suit for recovery of money on the basis of dishonored Bank cheque was filed by plaintiff/appellant who sought attachment of vehicle of defendant/respondent before judgment---Trial Court, on application filed by defendant/respondent recalled order of attachment of vehicle---Validity---No application on behalf of defendant / respondent, who had not obtained leave to appear and defend the suit was maintainable, even if such application was an interlocutory or with respect to ancillary matter---Defendant/respondent was not granted leave to appear and defend the suit by Trial Court and application for release of attached property was not maintainable---High Court set aside order passed by Trial Court as the same was illegal and without jurisdiction---Constitutional petition was allowed, in circumstances.

Messers United Distributors Pakistan Limited v. Ahmad Zarie Services and another 1997 MLD 1835; Farooque Ahmed v. Raza Muhammad PLD 2007 Kar. 182 and Syed Itrart Hussain Rizvi v. Messrs Tameer MICRO Finance Bank Limited through Attorney and another 2018 CLD 116 rel.

Kashif Ali Malik for Petitioner.

Muhammad Ali Raja for Respondent No.2.

Ch. Zaki Rizwan for Respondent No.3.

Awais Haider Malik, State Counsel.

Muhammad Yousaf, Inspector, ICT Police.

2021 M L D 278

[Islamabad]

Before Lubna Saleem Pervez, J

SAMINA QASIM TARAR and another---Petitioners

Versus

The STATE and another---Respondents

Writ Petition No.1536 of 2020, decided on 1st October, 2020.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Quashing of FIR---Conversion of civil liability into criminal one---Scope---Petitioners sought quashing of FIR lodged against them---Ownership of the house for which an agreement to sell was entered into remained with the accused, who had received part consideration---Possession of the property was to be handed over after payment of the entire sale consideration---Balance sale consideration was not paid by the complainant within the cut-off date---Part payment made by the complainant did not constitute entrustment and there was no dishonest misappropriation for the reason that the accused had sold the property to another person when the complainant had failed to make the payment within the agreed date---Not a single ingredient constituting an offence under S.406, P.P.C., could be found---High Court observed that civil proceedings were being converted into criminal one, which was not warranted under the law---Dispute between the parties was of civil nature for enforcement of agreement of sale of property, remedy of which was available to the complainant under Specific Relief Act, 1877, before the Civil Court---FIR was quashed, in circumstances.

Rana Saeed Ullah v. Inspector General of Police and others 2013 YLR 2513; Badar ur Islam v. District Police Officer, Faisalabad and others 2007 YLR 2766; Shaukat Ali Sagar v. SHO, Police Station Batala Colony, Faisalabad and others 2006 PCr.LJ 1900; Umair Aslam v. SHO and others 2014 PCr.LJ 1305; Mufti Pervaiz Manzoor v. The State and others 2011 PCr.LJ 1241 and Rafiq Haji Usman v. Chairman NAB and another 2015 SCMR 1575 ref.

Muhammad Nawaz v. SHO, Police Station, Sabzi Mandi, Islamabad 2017 PCr.LJ 133 and Muhammad Asim v. The State 2020 PCr.LJ 335 rel.

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

----Ss.405 & 406---Criminal breach of trust---Ingredients---Section 405, P.P.C. shows that it deals with the breach of trust with fraudulent and dishonest intent for wrongful gain---Criminal breach of trust is committed by a person (i) when there is dishonest entrustment of property to any person or with dominion over the property (ii) dishonest misappropriation or conversion of the property in his own use by the person who has been entrusted with the property (iii) who dishonestly use or dispose of the property in violation of any direction of the law prescribing the mode in which the trust is to be discharged (iv) dishonest use or disposal of the property in violation of any legal contract express or implied, which he has made touching the discharge of such trust and (v) willfully suffer other person to do so by the person to whom the property has been entrusted.

Syed Hussain Abuzar Ahmad and Shehryar Nawaz Malik for Petitioner.

Ch. Amjad Ali for Respondent.

2021 M L D 297

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

SUMERA BIBI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.960-B of 2020, decided on 17th September, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), 381, 411, 337-J & 109---Theft in dwelling house, recovery of stolen article, causing hurt by poison---Bail, grant of---Suckling baby---Effect---Accused was a house maid who alleged to have committed theft in the house of her employers and also administered poison to elderly members of that family---Plea raised by petitioner was that she was having suckling baby with her in jail---Validity---High Court observed that welfare of a suckling child was to be kept in view as the child was subject of society who should not be made to suffer in jail for an offence, allegedly committed by his/her mother--- Society was to provide congenial atmosphere to its infants for becoming good citizens--- If early years of a child, when his or her mental growth retains immense importance are spent in jail environment, those are not harmful for himself / herself but for the society at large as well because ultimately he has to become subject of society where he has to perform his role---Inevitable for the survival of the child that mother should be released on bail so the child could prosper in a healthy environment at home which otherwise could not be provided in jail enclosures---Bail was allowed, in circumstances.

Mst. Nusrat v. The State 1996 SCMR 973; Mst. Nasreen v. The State 1998 MLD 1350; Nasim Bibi v. The State 2019 MLD 1157; Mst. Nazima Bibi v. The State and another PLD 2018 Peshawar 138 and Mst. Haseena v. The State 2019 MLD 176 rel.

Ms. Bushra Saleem for Petitioner.

Syed Shahbaz Shah, State Counsel.

Hafiz Munawar Iqbal and Syed Pervaiz Zahoor for the Complainant.

2021 M L D 337

[Islamabad]

Before Ghulam Azam Qambrani, J

MUHAMMAD TOUSEEQ DANIAL BHATTI---Petitioner

Versus

AYESHA NAEEM and 2 others---Respondents

Writ Petition No. 1780 of 2020, decided on 25th August, 2020.

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

----S.17-A---Interim maintenance for minors---Scope---Purpose behind interim maintenance is to ensure that during pendency of suit before Family Court, financial constraints faced by minors are ameliorated.

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

----Ss.1-A &17-A---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Interlocutory order---Delay in conclusion of trial---Suit for recovery of maintenance---Father of minor was aggrieved of interim maintenance fixed by Family Court on the plea that the same was exorbitant---Validity---Family Courts Act, 1964 was a special law barring right of appeal or revision against interim maintenance order---Constitutional petition against order under S.17-A of Family Courts Act, 1964, was maintainable only if such interim order was coram non judice, wholly or without jurisdiction or based on mala fide---Quantum of interim maintenance could not be made a ground for invoking Constitutional jurisdiction of High Court---Trial was not concluded within a period of six months as prescribed by S.12-A of Family Courts Act, 1964---High Court directed Family Court to decide suit for recovery of maintenance within a period of two months so that petitioner could be burdened with interim maintenance for two months only---Order of interim maintenance would subsequently merge into final judgment---Constitutional petition was dismissed in circumstances.

Syeda Farhat Jehan v. Syed lqbal Hussain Rizvi 2010 YLR 3275; Munir Alam v. Civil Judge, Family Court, Lahore 2009 CLC 442; Abrar Hussain v. Mehwish Rana PLD 2012 Lah. 420; Shahid Ali Gil v. Mst. Ruqayya Bano 2015 MLD 265; Ali Adnan Dar v. Judge, Family Court PLD 2016 Lah. 73 and Mohtarma Benazir Bhutto v. The State 1999 SCMR 1447 ref.

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

----S. 17-A---Interim maintenance---Quantum---Family Court to adopt a pragmatic approach and fix interim maintenance---Principles enumerated.

Following are the principles for fixation of interim maintenance:

i. Financial status of father shall be kept in view, which should be based upon salary slips, bank statements, income tax record, and business income reflected on record or through any other documentary proof placed by either side in the Court.

ii. Interim maintenance should be fixed not on hard and fast principles, rather based upon a tentative view.

iii. Maintenance should not be fixed on a higher side, which may result into technical knockout of the father so that he could not able to pay the interim maintenance, therefore, his option should also be considered for payment of interim maintenance, which he agrees to pay before the Family Court.

iv. In cases, where father has not explained his monthly income or his financial status in the pleadings, rather concealed his income, the Family Court can rely upon the facts narrated in plaint or on the basis of attached documents vis-a-vis the needs of minor and the verbal stance given by father without reference to his written statement will not be considered justified, hence the Family Court shall exercise discretion to fix the interim maintenance while applying the above principles.

v. In cases, where determination of adequacy or inadequacy of quantum of maintenance requires factual inquiry and evidence in trial, the maintenance should be fixed after consultation with the father and mother as well as keeping in view the day-to-day requirements of minor.

vi. The needs of minor should be considered on the basis of social stratification of family in which minor has been brought up.

vii. The financial status of father could also be considered on the basis of facts narrated in pleadings of the parties, which includes the living standard and previous matrimonial life of the parties in which the mother/wife has been provided with particular kind of living, housing facilities, transportation, gifts, immovable properties of husband and the lifestyle in which husband/father was living prior to separation or divorce or before the institution of suit for maintenance.

viii. In cases, where father being civil servant or employee of any organization. department or company has not appended his salary slips or bank statements, the Family Court shall ask for an undertaking or affidavit regarding his salary and thereafter shall fix the interim maintenance, however after the trial of the case, if the court comes to the conclusion that at the time of fixation of interim maintenance allowance the father/husband has stated a fact beyond his pleadings or undertaking, which is found to be false, such father be burdened with heavy costs and action of perjury may also be initiated against him.

ix. The Family Court may also call the employer of father, HR department, admin department, bank managers, land revenue department, tax record, and banking details as well as salary details of the father directly from the relevant offices while deciding the question of interim maintenance for a prima facie view to fix the allowance in favour of minor so that no inadequacy is attributed while fixing the maintenance allowance.

Muhammad Saqib Bhatti for Petitioner.

Ms. Saima Uzman Chatha for Respondents.

2021 M L D 382

[Islamabad]

Before Mohsin Akhtar Kayani, J

NADIA ASGHAR (ADVOCATE) and another---Petitioners

Versus

NATIONAL DEFENCE UNIVERSITY (NDU) through Registrar and 2 others---Respondents

Writ Petitions Nos.4190 and 4427 of 2019, decided on 15th October, 2020.

Educational Institution---

----Admission, restoration of--- Act of indiscipline--- Proof--- Petitioner was Phd. Scholar and she was allegedly involved in facilitating a teacher of visiting facility to malign a female student--- Admission of petitioner was cancelled by University on the allegation of indiscipline--- Validity--- Petitioner was not directly involved in the matter rather she received data from the teacher--- Whether the data was used to malign the victim in University or otherwise was a fact which was concluded by University authorities in their departmental proceedings--- High Court exercised its authority of judicial review while applying proportionality, suitability and necessity test, whereby fair stance was required before cancellation of admission of any student--- High Court observed that educational institution was to exercise parental jurisdiction with students and as such University authorities concluded the matter after adopting due procedure provided in their regulation against petitioner and the teacher and even imposed penalty in accordance with their regulations to the extent of the teacher, who had been harassing a young girl student as he was visiting faculty member--- Such act on the part of teacher was the most unethical but penalty imposed on petitioner was harsh--- High Court declined to interfere into the affairs of University and policy matters of educational institutions and directed the University authorities to review penalty of petitioner on parental concept while differentiating the role of petitioner vis-a-vis the teacher, as the same would promote the concept of fairness, equity and justice on the part of University authorities, while dealing with disciplinary matter of students of University--- Constitutional petition was dismissed accordingly.Government College University, Lahore v. Syeda Fiza Abbas 2015 SCMR 445; Secretary Economic Affairs Division, Islamabad v. Anwarul Haq Ahmed 2013 SCMR 1687; University of Health Science, Lahore v. Arsalan Ali 2016 SCMR 134; Syed Muhammad Arif v. University of Balochistan PLD 2006 SC 564; Muhammad Ishafaq Ahmad Sial v. Bahauddin Zakariya University, Multan 2011 SCMR 1021 and Asaf Fasihuddin Khan v. Government of Pakistan 2014 SCMR 676 rel.

Rana Abid Nazir Khan for Petitioner.

Tariq Bilal, Babar Bilal and Saqib Anwar Siddqui, Assistant Registrar NDU for Respondents.

2021 M L D 468

[Islamabad]

Before Ghulam Azam Qambrani, J

MUHAMMAD JEHANGIR---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No.167 of 2016, decided on 7th September, 2020.

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

----Ss.324 & 337-A(ii)---Criminal Procedure Code (V of 1898), S.417---Attempt to commit Qatl-i-amd and Shajjah-i-Mudihah---Appreciation of evidence---Appeal against acquittal---Onus to prove---Chance witness---Complainant was aggrieved of acquittal of accused persons by Trial Court---Validity---Prosecution was to prove its case beyond doubt and such burden could not shift from prosecution even if accused persons had taken up any particular plea and failed in that---Trial Court rightly held that story of occurrence as narrated and deposed by eyewitnesses was full of doubts and it could not be accepted by a judicial mind---Opinion of medical board made Medico Legal Report as doubtful---Both eye-witnesses were also discrepant on the manner and mode of their arrival at crime scene---Complainant failed to advance any ground to justify setting aside of acquittal judgment---No misreading or non-reading of evidence nor findings of Trial Court were patently illegal---High Court declined to interfere in judgment of acquittal passed by Trial Court as findings of acquittal were not perverse, shocking, alarming or suffering from errors of jurisdiction and misreading or non-reading of evidence---Appeal was dismissed, in circumstances.

Zulfiqar Ali v. Imtiaz and others 2019 SCMR 1315; Muhammad Karim v. The State 2009 SCMR 230; Muhammad Imran v. The State 2020 SCMR 857; Ghulam Akbar and another v. The State 2008 SCMR 1064; Sanaullah v. The State through Prosecutor General 2015 PCr.LJ. 382 and Inayatullah Butt v. Muhammad Javed and 2 others PLD 2003 SC 562 rel.

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

----S.417---Appeal against acquittal---Presumption of innocence---Scope---Interference in appeal against acquittal is the most narrow and limited because in an acquittal presumption of innocence significantly adds to cardinal rule of criminal jurisprudence that an accused is presumed to be innocent until proved guilty---Presumption of innocence is doubled and Courts are very slow in interfering with such an acquittal judgment unless it is shown to be perverse, passed in gross violation of law, suffering from errors of grave misreading or non-reading of evidence--- Such judgments should not be lightly interfered and heavy burden lies on prosecution to rebut presumption of innocence which accused has earned and attained on account of his acquittal.

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

----S.417---Appeal against acquittal---Different conclusion, possibility of---Scope---Court of Appeal should not interfere simply for the reason that on re-appraisal of evidence a different conclusion could possibly be arrived at---Factual conclusions should not be upset except when palpably perverse, suffering from serious and material factual infirmities.

The State v. Muhammad Sharif 1995 SCMR 635; Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others 1998 SCMR 1281 and Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 rel.

Aamir Azad for Appellant.

Raja Iftikhar Ahmad for Respondents Nos.2 and 3 along with Respondents Nos.2 and 3 in person.

Zohaib Hassan Gondal, State Council along with Muhammad Mateen SI for the State.

2021 M L D 497

[Islamabad]

Before Lubna Saleem Pervez, J

SHAUKAT HUSSAIN BHATTI and another---Petitioners

Versus

KHALID LATIF and 3 others---Respondents

Civil Revision No.197 of 2015, decided on 2nd March, 2020.

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

----S.42---Suit for declaration---Purchase of property freezed by Government---Scope---Petitioners purchased suit property from respondent but the Capital Development Authority (CDA) refused to change the title on the ground that the property had already been freezed by Anti-Narcotics Force (ANF)---Trial Court and appellate court concurrently dismissed the suit---Validity---Reliance of petitioners on the registered sale deed had no sanctity in law as firstly respondent had no lawful authority to sale the disputed property and secondly the manner of registration of the property before the Sub-Registrar casted substantial question over its lawful registration---Capital Development Authority had rightly and lawfully refused to transfer the property in the names of the petitioners---Petitioners could not explain any plausible reason for a long delay of thirteen years in filing suit before the trial court except that they were living abroad and that too without any supporting evidence---Courts below were justified in dismissing the suit as well as appeal filed by the petitioners---Revision petition was dismissed, in circumstances.

Muhammad Saleem and others v. Mukhtar Ahmad 1996 SCMR 596; Cantonment Board, Rawalpindi v. Muhammad Sharif through Legal Heirs PLD 1995 SC 472 and Mst. Hajran v. Sardar Muhammad PLD 1970 SC 287 ref.

(b) Administration of justice---

----Cases to be decided on merits after hearing both the sides and nobody should be condemned unheard.

(c) Limitation---

----Delay of each and every day has to be explained specifically and not in vague terms.

Mian Imran Masood for Petitioners.

2021 M L D 537

[Islamabad]

Before Lubna Saleem Pervez, J

SUGHRA AKRAM---Petitioner

Versus

FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDATION through Director General and 2 others---Respondent

Writ Petition No.2327 of 2013, decided on 6th November, 2020.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Allotment, cancellation of---Non-issuance of notice---Effect---Petitioner assailed cancellation of provisional allotment letter on the ground of non-issuance of notice for cancellation---Validity---Copy of order for cancellation of plot appended with the comments and copy of the cancellation order provided to the counsel for the petitioner were entirely different---Cancellation letters gave rise to serious doubts on the conduct of the authorities as the orders were apparently furnished to the Court to cover the illegality of not intimating the petitioner regarding cancellation of her plot---Contention of petitioner that no notice regarding cancellation of subject plot was issued by the authorities stood proved---Constitutional petition was allowed and the cancellation order was declared to be illegal.

Ch. Mohammad Nawaz v. The Federal Government Employees Housing Foundation 2018 PLC (C.S.) 325 rel.

(b) Maxim---

---Audi alteram partem---Scope---Principle of audi alteram partem i.e. providing an opportunity to the concerned party calling explanation before proceeding adversely against the person is a well-established norm and established principle of natural justice.

Nauman Munir Paracha for Petitioner.

Malik Javid Iqbal Wains for Respondent No.1.

Syed Nazar Hussain Shah, A.A.G. for Respondent No.2.

Nemo for Respondent No.3.

2021 M L D 549

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

SOHAIL AKHTER---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.987-B of 2020, decided on 12th October, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss. 322, 279, 337-G & 427---Qatl-bis-sabab, rash driving or riding on public way, hurt by rash or negligent driving, mischief causing damage to the amount of fifty rupees---Bail, refusal of---Scope---Accused while driving a 'dumper' rashly and negligently hit a motorcycle due to which son of complainant died on the spot while another sustained serious injuries---Accused, at the relevant time, had no valid licence to drive a heavy-duty vehicle and during the course of investigation he had admitted his guilt, therefore, in such an eventuality, he was not entitled to the concession of bail---Petition for grant of bail was dismissed, in circumstances.

2005 YLR 1968 distinguished.

Majid Naeem v. State and another 2011 SCMR 1227; Muhammad Yaqoob v. The State and another 2018 PCr.LJ Note 19; Sadaqat Ullah Khan v. The State and another 2017 PCr.LJ Note 125 and Atta Muhammad v. The State 2005 PCr.LJ 1648 rel.

(b) Words and phrases---

----Unlawful act---Meaning.

Black's Law Dictionary 11th Edition ref.

M. Afzal Janjua for Petitioner.

Syed Shahbaz Shah, State Counsel.

Shahid Munir for the Complainant.

2021 M L D 617

[Islamabad]

Before Mohsin Akhtar Kayani and Fiaz Ahmad Anjum Jandran, JJ

MUHAMMAD SAFDAR KHAN and another----Appellants

Versus

MUHAMMAD NADEEM ABBASI and another----Respondents

Regular First Appeals Nos.125 and 126 of 2017 and Criminal Original No.180 of 2020, decided on 27th January, 2021.

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

----Ss. 12, 39 & 54--- Agreement to sell immoveable property--- Specific performance of contract---Scope---Payment of balance sale consideration---Scope--- Vendee instituted suit for specific performance of the agreement while vendor filed suit for cancellation of said agreement---Both suits were consolidated--- Contention of the appellant/vendor was that the agreement was liable to be cancelled, as outstanding sale consideration was not available with the vendee at the final/stipulated date so their matter was referred to the Jirga---Record revealed that huge amount (to the tune of Rs.22,000,000/-) was, admittedly, paid by the respondent/vendee to the appellant/vendor in pursuant to the agreement---Respondent filed suit for specific performance within a week of the last date mentioned in the agreement for completion of the transaction ---In the suit for specific performance, amount (balance sale consideration) should have been available with the plaintiff and the respondent had deposited the same within the time allowed by the Trial Court while granting temporary injunction ---Appellant could not bring anything on record that required amount was not available with the respondent---Evidence showed that when question was put to the witness of appellant regarding existence of Jirga, the answer was expressly made in negative---Suit filed by the appellant for cancellation of document was merely an attempt and an afterthought to counter the claim of the respondent---Appellant filed his suit after more than one year and two months of the filing of the suit of the respondent ---No material was available except the said suit (for cancellation) that the agreement-in-question was cancelled---Stance of the appellant was not corroborated and substantiated by any tangible piece of evidence---Discretion exercised by the Trial Court was neither arbitrary nor perverse---No illegality or infirmity was found in the impugned judgment and decree passed by the Trial Court in favour of the respondent/vendee---Appeal was dismissed, in circumstances.

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

----Preamble & S. 12---Suit for specific performance of agreement to sell immoveable property--- ---Powers of Court---Scope---Court, in suit for specific performance, was not meant to be authorized under the Preamble of Specific Relief Act, 1877, to direct the parties to perform any new action, rather the Court was to bind the parties to do an act/perform obligation for which they had bound themselves with their free-will through solemn affirmation by an undertaking---When any of the parties to the said solemn affirmation and admitted agreements, expressed reluctance then Specific Relief Act, 1877, entitled the aggrieved party to sue the defaulting one before the Court of plenary jurisdiction--- Parties, in the present case, entered into solemn affirmation through agreement that on certain terms and conditions appellant/vendor would alienate premises to the respondent---When the appellant, on the fixed date, failed to abide by his commitment, the respondent resorted to civil action and the Trial Court extended specific relief in his(respondent's) favour which, in the backdrop of the facts of the present case, appeared to be in accordance with the canons of law--- No illegality or infirmity was found in the impugned judgment and decree passed by the Trial Court in favour of the respondent/vendee---Appeal was dismissed, in circumstances.

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

----Ss. 12 & 39---Agreement to sell immoveable property---Specific performance of contract---Cancellation of document---Equitable remedy---Form and intention by the party---Scope---In a lis initiated under the Specific Relief Act, 1877, normal course, which the Court adopted , was to examine each and every detail qua agreement inter-se the parties besides claim and counter-claims thereto with actions performed or omitted to perform and then to award appropriate relief---For the functions to be performed by a Court, as equitable remedy, there were some guiding principles/maxims on the subject, one of the same was that "equity looked to the intention and not to the form", there was no issue of form, in the present case, but of course was of the intention---To assess/gauge the intention behind an act, performed or omitted to perform, certain factors were required to be looked into ---Acts performed, in the present case, by the respondent/vendee pursuant to the agreement included (i) he, admittedly, paid Rs.10 million (ii) he, on the request of the appellant, paid the part of outstanding amount, admittedly, prior to the time stipulated for the payment (iii) when appellant refused to receive remaining sale consideration on the target date, he (respondent) filed his suit within seven days of the said refusal with readiness to pay the outstanding amount; and (vi) on the direction of the Trial Court, he (respondent) deposited the outstanding amount within the stipulated period, which was also borne out from record---High Court, having assessed the acts held that respondent had the intention to complete the already consented act under the agreement, thus, he was rightly held entitled to discretionary relief under the Specific Relief Act, 1877---Conclusion arrived at by the Trial Court was neither perverse nor arbitrary rather was in consonance with the law on the subject i.e. Specific Relief Act, 1877--- No illegality or infirmity was found in the impugned judgment and decree passed by the Trial Court in favour of the respondent/vendee---Appeal was dismissed, in circumstances.

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

----Ss.12, 39 & 54---Agreement to sell immoveable property---Specific performance of contract---Equitable remedy---Discretion of Trial Court---Jurisdiction of the Appellate Court---Scope---When suitor resorted to avail equitable remedy then the Court exercised its jurisdiction by way of discretion and not in an arbitrary manner, because equitable jurisdiction was discretionary and not arbitrary---Said discretion must be exercised in accordance with fair play and judicial principles guided by sound reasoning---When Trial Court exercised its discretion in a way that entire evidence was well appreciated, conduct of the parties was evaluated, material on record was considered in accordance with set principles of law, in that event Appellate Court was required not to interfere in the discretion exercised by the Trial Court---Guiding principle for interference in the exercise of discretion of Trial Court was that Trial Court had exercised said jurisdiction perversely, arbitrary or against judicial principles---Appellate Court was also not to exercise its discretion against the grant of specific performance on extraneous consideration--- No illegality or infirmity was found in the impugned judgment and decree passed by the Trial Court in favour of the respondent/vendee---Appeal was dismissed, in circumstances.

Syed Javed Akbar for Appellants.

Muhammad Wajid Hussain Mughal for Respondents.

2021 M L D 663

[Islamabad]

Before Miangul Hassan Aurangzeb, J

CAPITAL DEVELOPMENT AUTHORITY through Chairman and another---Petitioners

Versus

LIAQAT ALI and others---Respondents

Civil Revision No.517 of 2015, decided on 7th March, 2016.\

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Rejection of plaint---Scope---Petitioners assailed the dismissal of their application under O.VII, R.11, C.P.C.---Contention of petitioners was that the dispute between the contesting parties had earlier been adjudicated upon up to the level of the Supreme Court in favour of the petitioners and that the respondents had tried to open a past and closed transaction---Validity---Supreme Court, in its order had observed that a factual determination was essential for ascertaining the respective rights and liabilities of the parties for which writ jurisdiction of High Court was not the appropriate remedy and that heavy liability could not be placed on the petitioners without recording of evidence and due trial; it was after the said order that the respondents had instituted their suit before a court of plenary jurisdiction---Appellate Court had not committed any jurisdictional error in remanding the matter to the Civil Court for a decision on merits after recording the evidence---Revision petition was dismissed, in circumstances.

Ghulam Shabbir Akbar for Petitioners.

Zulfiqar Ali Abbasi, Advocate Supreme Court for Respondents Nos.1 to 3.

2021 M L D 698

[Islamabad]

Before Mohsin Akhtar Kayani and Fiaz Ahmed Anjum Jandran, JJ

BASHIR AHMED---Appellant

Versus

MUHAMMAD ISA and others---Respondents

Regular First Appeal No.70 of 2013, decided on 5th November, 2020.

Specific Relief Act (I of 1877)---

----Ss.12, 22 & 54---Contract Act (IX of 1872), S.32---Suit for specific performance of agreement to sell and injunction---Contingent contract---Description of property, absence of---Plaintiff/appellant filed suit for specific performance of agreement to sell executed by defendant/respondent regarding plots allotted to him after execution of the agreements in question--- Trial Court dismissed the suit--- Validity---Defendant/respondent did not have any specific title of plot which could be transferred through agreements in question---Plaintiff/appellant failed to establish execution of agreements as stamp papers for execution of agreements were purchased by plaintiff/appellant himself and not by the seller i.e. defendant/respondent---Both agreements did not contain specific particulars of plot and the agreement did not qualify status of contingent contract, to be enforced by operation of law on account of deficient in terms of S.32 of Contract Act, 1872, which had made contingent contract enforceable by law---No agreement after issuance of final allotment letter i.e. title document--- Only those agreements were enforceable by law under Specific Relief Act, 1877, which had entailed specific, exact and complete details of land/property, coupled with the consideration, while a contingent contract could not be enforced by law until the event had happened--- High Court declined to interfere in judgment and decree passed by Trial Court--- High Court directed defendant/respondent to return amount received from plaintiff/appellant---Appeal was dismissed, in circumstances.

Muhammad Miskeen v. District Judge Attock and others 2020 SCMR 406 rel.

Muhammad Wajid Hussain Mughal for Appellant.

Munir Ahmad Malik for Respondent No.1.

Sitwat Jehangir and Raja Hakeem Aslam for Respondent No.2.

2021 M L D 738

[Islamabad]

Before Mohsin Akhtar Kayani and Fiaz Ahmad Anjum Jandran, JJ

RAFAQAT KHAN (alias BOBI)---Appellant

Versus

The STATE---Respondent

Criminal Appeal 13 of 2016, decided on 26th October, 2020.

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

----S.9(c)---Possession of 1140 grams charas---Appreciation of evidence---Benefit of doubt---Prosecution case was that 1140 grams charas was recovered from the possession of accused---Record showed that the complainant/Investigating Officer in his examination-in-chief stated the story as mentioned in the FIR---Witness was subjected to cross-examination wherein he admitted that he had not mentioned in his examination-in-chief that the recovered charas was weighed in the presence of witnesses and that he had not mentioned the colour of the charas---Recovery witness had not given the details of the proceedings that had taken place on the spot, statedly conducted by the Investigating Officer---Defence questioned the said witness regarding the non-mentioning of the details but instead of elaborating the same, he admitted that he had not mentioned that from where the charas had been recovered; what was its colour; at what time they reached the spot and that whether the Investigating Officer recorded his statement at the spot or otherwise---No detail was available as to whether charas recovered from the accused was weighted in his presence---No detail of such recovery, its weight in the presence of recovery witness having been given, the same negated the case of prosecution---Not only the statement of Investigating Officer was discrepant with regard to the proceedings of weighing the charas in presence of witnesses but the testimony of Investigating Officer did not lend corroboration to the statement of recovery witness regarding material aspects---Said recovery witness had no knowledge that whether the Investigating Officer recorded his statement on the spot or not---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

2019 SCMR 326; 2018 SCMR 149; 2010 SCMR 1009; 2017 PCr.LJ 501; 2016 PCr.LJ 432; 2006 YLR 3188 and 1996 SCMR 308 ref.

PLD 2019 SC 527 rel.

Ch. Muhammad Jehangir for Appellant.

Muhammad Sohail Khursheed, State Counsel with Farooq SI, Police Station Shahzad Town for Respondent.

2021 M L D 747

[Islamabad]

Before Lubna Saleem Pervez, J

SAMSUNG GULF ELECTRONICS FZE---Appellant

Versus

LATIF HAKEEM and 5 others---Respondents

F.A.O. No.82 of 2020, decided on 23rd October, 2020.

Civil Procedure Court (V of 1908)---

----O.XXXIX Rr. 1 & 2---Temporary injunction / interim relief, grant of---Essential ingredients --- Adjudication of applications for temporary injunction under O.XXXIX Rr. 1 & 2, C.P.C.----Nature of relief under O.XXXIX Rr.1 & 2, C.P.C.---- "Irreparable loss" and "balance of convenience", meaning and scope of---Any party seeking interim injunction under O. XXXIX, Rr. 1 & 2, C.P.C. must satisfy the court on having a prima facie case; that irreparable loss will occur to such party if injunction was not granted, and that balance of convenience was in favour of such party---"Irreparable loss" meant such loss which could not be adequately remedied by award of damages and balance of convenience meant balance of mischief or inconvenience to parties---Where claim of loss and recovery was ascertainable, then such loss could not be said to be "irreparable" and a monetary loss could not be considered to be an irreparable loss for purpose of grant or refusal for application for temporary injunction---Loss, therefore, if same was measurable in terms of money, then question of suffering "irreparable loss" did not arise---Burden of proof existed upon applicant seeking temporary injunction to satisfy court regarding existence of essential ingredients---Apprehensions, dishonour, and humiliation were irrelevant considerations for granting or refusing of application under O.XXXIX, C.P.C.---Where there existed a threat of infringement of right vested in a litigant, then temporary injunction could be granted---Temporary injunctions were not be granted solely on basis of prima facie cases and other ingredients must be taken into account including S.56 of Specific Relief Act, 1877 where applicable---Grant of temporary injunction was a discretionary relief to be exercised upon sound reasons and by application principles after assessing all circumstances and was to be issued in aid to equity and justice.

Mohiuddin Molla v. The Province of East Pakistan PLD 1962 SC 119; Mst. Afshan v. Syed Kamran Ali Shah 2013 CLC 1220; Messrs ELKO Organization (Pvt.) Ltd. v. Riaz ul Islam 2013 YLR 719; Muhammad Aneess v. Abdul Qayyum alias Kalla Khan 2009 YLR 1616; Messrs Nishat Talkies v. Messrs Zeray Enterprises Ltd. 1984 CLC 2366; Habib Bank Limited v. Hotel Metropole Limited (1987 MLD 2341; Santosh Promoters (Pvt.) Ltd. v. Intrasoft Technologies 2016 SCC Online Cal 8268 (Calcutta High Court); Harleen Jairath v. Prabha Surana 2019 SCC Online Cal 2372 (Calcutta High Court); Cosmopolitan Trading Corporation v. Engineering Sales Corporation and others AIR 2001 Rajhistan 331; State Bank of India v. Messrs Fravina Dyed Intermediates AIR 1989 Bombay 95; Bashir Ahmed v. Muhammad Aslam 2003 SCMR 1864; Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314; Jameela Pir Bukhsh v. Appellate Authority and others 2003 SCMR 1524; Qureshi Construction Co. Ltd. v. Government of Sindh 1983 SCMR 235; Jahangir Siddiqui v. Noman Abid Investment Management Limited 2013 CLD 1965; Mst. Afshan v. Syed Kamran Ali Shah 2013 CLC 1220; Sajjad Ahmed v. Chairman, Capital Development Authority 2016 CLC 896; The Stillman's Company (Pvt.) Ltd. v. S.M. Anees 2019 YLR 815; Stillman's Company (Pvt.) Ltd. v. S.M. Anees 2020 CLD 15 and Messrs Travel Automation (Pvt.) Ltd. through Managing Director v. Abacus International (Pvt.) Ltd. through President and Chief Executive 2006 CLD 497 ref.

MCB v. Adam G Insurance Company 2003 MLD 688; Muhammad Hussain Khan v. N.I.B Bank Limited 2009 CLD 42; Abdul Razak Adamjee v. Director-General, Karachi Development Authority 1995 MLD 803; Muhammad Riaz v. Federal Construction Corporation Ltd. 1987 CLC 345; Computer Data Systems (Pvt.) Ltd v. Mst. Shahzan Zafar 2004 MLD 850; Muhammad Hussain v. Chairman, Pakistan Telecommunication PLD 1995 Lah. 456; Messrs Universal Business Equipment (Pvt.) Ltd. v. Messrs Kokusai Commerce and others 1995 MLD 384 and Nauman Azhar v. Celvas Private Limited 2020 CLC 675 rel.

Barrister Ali Zafar and Mian Muhammad Kashif for Appellant.

Muhammad Saqib Bhatti for Respondents.

2021 M L D 817

[Islamabad]

Before Babar Sattar, J

Ms. SHAZIA AKBAR GHALZAI and another----Petitioners

Versus

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

Writ Petition No.156 of 2020, decided on 2nd February, 2021.

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

----Ss.7, 17, 19 & 41---"Custody" and "guardianship"---Distinction---"Custody" alludes to bringing up and nurturing a child and taking care of his/her personal and emotional needs on day to day basis---"Guardianship" refers to obligation of maintaining child and effecting legal transactions in his/her name and retaining constructive custody over his/her person or property for purposes of discharging obligations as guardian---Father is natural guardian even when mother is bestowed with child's custody---"Custody" of minor is not precondition or requirement for being guardian of his/her person or property.

PLD 2009 SC 751; PLD 1967 Kar. 569; PLD 1968 Kar. 774 and PLD 1963 Lah. 534 rel.

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

----Ss.7, 17, 19 & 41---Constitution of Pakistan, Art.199---Constitutional petition---Guardian, non-appointment of---Minor (son) was of three months old when his Mother/petitioner left him and went abroad to complete her Ph.D---Minor was looked after by his father/respondent---On her return to Pakistan mother/petitioner sought guardianship of minor but the same was refused by Guardian Court and the order was maintained by Lower Appellate Court---Validity---Father of minor was his/her natural guardian and welfare of child was best served when he/she remained under father's guardianship---Question as to how welfare of child would be best served in appointing a guardian instead of father could only arise when father was either not alive or was determined by Court to be unfit as guardian--- Court was not vested with any authority to appoint a guardian in place of father when father was alive and was not unfit to be guardian--- Even where father was found to be unfit to be guardian and another person was appointed in his place, such other guardian's authority ceased once circumstances leading to father declared unfit had changed and he was no longer deemed unfit by Court--- No one could be appointed guardian in father's place unless father was found unfit to serve as guardian of his child and onus to establish that the father was unfit was on the person bringing such claim--- Father/respondent was natural guardian and welfare of the child was in vesting responsibility of guardianship in him unless he was unfit for the purpose and declared so by a Court--- Constitutional petition was dismissed, in circumstances.

Amjad Masih v. Mst. Bushra Bibi 2010 YLR 1468; Muhammad Noman Malik v. Rukhsan Noman 1983 CLC 2846; Hussain Bux v. Mir Muhammad 1985 MLD 161; Shabana Naz v. Muhammad Saleem 2014 SCMR 343; Mst. Munazza Bibi v. SHO Police Station Chichawatni 2012 PCr.LJ 1567; Mst. Shahmim v. Sarfraz 2013 MLD 1885; Mst. Feroze Begum v. Lt.Col. Muhammad Hussain 1978 SCMR 299; Talib Hussain v. Bashiran Bibi 1985 CLC 592; Mirjam Aberras Lehdeaho v. SHO, Police Station Chung, Lahore 2018 SCMR 427; Naveed Munir v. Additional District and Sessions Judge, Lahore 2011 MLD 1938; Bashir Ahmed v. Incharge (Female) Darulaman, District of Mianwali 2011 SCMR 1329; PLD 2009 Kar. 50; Mst. Shah Bakht and 4 others v. Rodin and 4 others PLD 2007 Quetta 91; Mrs. Seema Chaudhry v. Ahsan Ashraf Sheikh PLD 2003 SC 877; Sakhawat Ali v. Shui Khelay PLD 1981 SC 454; Naveed Munir v. Additional District and Sessions Judge, Lah. 2014 SCMR 1446; Hari Chand v. Ghulam Rasool AIR 1932 Lah. 385; Walayat Shah and another v. Muhammad Hussain Shah and others AIR 1932 Lah. 386; Mst. Zebu and another v. Mizaj Gul PLD 1952 Pesh. 77; Muhammad Saqib Butt v. Mst. Khalida Parveen PLD 1967 Kar. 645; Ganj Bibi v. Muhammad Younas and another 2011 CLC 1062; Bushra Asghar v. Dr. Rehmat Ali and others 2012 MLD 1755; Mst. Kaneez Akhtar v. Abdul Qadoos and 2 others 2005 MLD 828; Nazar Bibi v. Additional District Judge, Jhang and 2 others 2009 YLR 991; Habib-ur-Rehman v. Hina Saeed 2010 MLD 544; Mst. Feroze Begum v. Lt-Col. Muhammad Hussain 1983 SCMR 606; Munawar Bibi v. Muhammad Amin 1995 SCMR 1206; Masroor Hussain v. Additional District Judge, Islamabad 2011 CLC 851; Chiragh Bibi v. Khadim Hussain PLD 1967 Lah. 382; Hamida Begum v. Uben Ullah 1989 CLC 604; Bulan v. Rohiman PLD 1963 Kar. 839; Abdul Ghaffar v. Awwamu Nas 1988 CLC 670; Mst. Naseem v. Ali Akbar PLD 2015 Quetta 30; Mst. Sardaran v. District Judge, Mianwali and others 2016 MLD 801 and Sitara Aslam v. Family Judge and others 2018 CLC 382 ref.

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

----Ss.7, 12, 17, 19, 25 & 41---Constitution of Pakistan, Art.199--- Constitutional petition--- Custody of minor--- Concurrent findings of facts by Courts below--- High Court in Constitutional jurisdiction does not ordinarily interfere with concurrent findings of fact given by Trial Court and Lower Appellate Court---High Court can intervene in custody (of child) matters but only on interim basis in face of an exigency pending adjudication of the matter by Guardian Court.

Mirjam Abberras Lehdeaho v. SHO, Police Station Chgung, Lahore 2018 SCMR 427 and Rahimullah v. Hilali Begum 1974 SCMR 305 rel.

Ms. Saira Khalid Rajput for Petitioner.

Mehboob-e-Husnain for Respondent.

2021 M L D 872

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

MUHAMMAD ZIA UD DIN---Petitioner

Versus

GHAFFAR KHAN and 2 others---Respondents

Writ Petition No.528 of 2020, decided on 30th September, 2020.

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

----S.12(2)---Setting aside ex-parte decree---Misrepresentation---Recording of evidence---Scope---Plaintiff claimed declaration of the facts that he purchased the vehicle through a sale agreement and then handed it over to the defendant on rent, while the defendant in his application under S.12(2), C.P.C. asserted that he purchased the vehicle through an agreement for consideration; that the vehicle was handed over to him while the outstanding amount was paid to the plaintiff, who also recognized the same by putting his signatures on the agreement---Case set up by the plaintiff was of payment of outstanding rent while that of defendant was of ownership---Pleadings explicitly formed an allegation of misrepresentation which fell within the ambit of S.12(2), C.P.C.---Courts below should have given opportunity to the defendant to advance evidence as the submissions raised in the application could not have been decided summarily---Constitutional petition was allowed and the Trial Court was directed to decide the application of the defendant afresh keeping in view the scope of S.12(2), C.P.C. after recording evidence of the parties afresh.

PLD 2018 SC 828; 2013 MLD 1132; 2018 CLC 40 and AIR 1966 All. 318 ref.

Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236 and PTV and others v. Abdul Sattar C.R. No.503/2019 rel.

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

----O.IX, R.13 & 12(2)---Setting aside ex-parte decree against defendant---Bar to further suit---Scope---Grounds for setting aside ex-parte decree under O.IX, R.13, C.P.C. are different from those mentioned in S.12(2), C.P.C.---Applicant, in the former case, has to show sufficient cause for his absence from the court and if the court comes to the conclusion that the absence of the defendant was neither wilful nor deliberate or he was not duly served, the court can set aside ex-parte decree; however, in the latter case, if a decree was passed without jurisdiction or some fraud had been practised on the court or through misrepresentation decree was obtained, the court was to set it aside under S.12(2), C.P.C.

(c) Words and phrases---

----"Misrepresentation"---Meaning---Scope-Misrepresentation means any act or an instance of making a false or misleading assertion with the intention to deceive, which may be written, spoken or in any other form that amounts to a false notion.

Black's Law Dictionary 11th Edition rel.

Sardar Bilal Firdous for Petitioner.

Respondents No.1 in person.

2021 M L D 1031

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

Sheikh MUHAMMAD IDREES---Petitioner

Versus

GHAZANFAR ALI and others---Respondents

Writ Petitions Nos.117 and 118 of 2020, decided on 17th February, 2021.

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

----S.17---Civil Procedure Code (V of 1908), O.I, R.10---Ejectment of tenant---Impleading / deleting of any party---Principle---Respondents filed ejectment petition against petitioner and two others---Relationship of landlord and tenant was denied by petitioner as he claimed to be owner in possession of the premises--- Respondents withdrew their claim against petitioner on the plea that they did not have any cause of action against him--- Petitioner filed application under O.I, R.10, C.P.C. for impleading as party to ejectment proceedings---Rent Controller as well as Lower Appellate Court declined to implead petitioner as party to ejectment proceedings--- Validity--- No one could compel any plaintiff/petitioner to implead any person in a suit/petition---Once any person was impleaded then for deletion of that person choice did not vest with the plaintiff/petitioner---No prejudice was caused to respondent if petitioner was allowed to join/remain in proceedings wherein respondents themselves impleaded him as tenant---Petitioner was necessary and proper party in proceedings for decision of controversy as per law---High Court in exercise of Constitutional jurisdiction set aside the orders passed by two Courts below and remanded the matter to Rent Controller for decision afresh---Constitutional petition was allowed accordingly.

Muhammad Mobin Siddiqui v. Mst. Shahzadi Begum and 2 others 1982 SCMR 233; Habibullah v. Zakir Ali and another PLD 2000 Kar. 238 and Messrs Mahboob Bakhsh (Pvt.) Ltd. v. Moinuddin Paracha and another 1989 CLC 1934 distinguished.

Mian Umer Ikram ul Haq v. Dr. Shahida Husnain and another 2016 SCMR 2186; Yasin Khan v. Additional District Judge No.VII, District Judge West, Islamabad and 2 others 2019 YLR 2894 and Muhammad Haroon Abbasi v. Jameel Rabbani 2019 YLR 671 ref.

Muhammad Ilyas Sheikh, Advocate Supreme Court for Petitioner.

Khurram Mehmood Qureshi, Muhammad Akhar Awan and Abdul Rauf Qureshi for Respondents.

2021 M L D 1117

[Islamabad]

Before Aamer Farooq and Tariq Mehmood Jahangiri, JJ

REEMA SHAMIM---Appellant

Versus

PAKISTAN MEDICAL COMMISSION and another---Respondents

I.C.A. No.30 of 2020, decided on 12th January, 2021.

MBBS and BDS (Admission, House Job and Internship) Regulations, 2018---

----Regln.11---Re-admission of students---Laches---Scope---Petitioner enrolled in Dental College for Bachelors in Dental Surgery in the year 2011, appeared in 1st Professional BDS exam, however, she could not clear two subjects despite availing three chances---Petitioner, later on, filed constitutional petition claiming therein that she was entitled to avail four chances but had missed one of them due to severe illness---Validity---Regulation 11 of MBBS and BDS (Admission, House Job and Internship) Regulations, 2018, clearly provided that any student who failed to clear 1st or 2nd professional examination in four consecutive chances availed or un-availed was not eligible for continuation of medical and dental studies of the MBBS and BDS---Petitioner had not applied to the authorities before missing the un-availed chance that she was suffering from severe sickness and was unable to appear in the exam---Petitioner had been sending requests to the authorities for providing her a chance to appear in BDS final examination since May, 2015 but no response from the authorities was given---Petitioner had kept silent for a long period and invoked the constitutional jurisdiction on 27-01-2020 which was barred by time and was hit by the principle of laches---Intra court appeal was dismissed.

2016 SCMR 183; PLD 2016 SC 872; 2019 SCMR 1720 and PLD 2016 SC 514 ref.

Ahmed and 25 others v. Ghama and 5 others 2005 SCMR 119 rel.

Fatima Tu Zara Butt for Appellant.

2021 M L D 1226

[Islamabad]

Before Tariq Mehmood Jahangiri, J

WALEED ARFAQAT ----Petitioner

Versus

The STATE and another----Respondents

Criminal Miscellaneous No.108-B of 2021, decided on 10th March, 2021.

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

----S.498---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Pre-arrest bail, cancellation of---Allegation against the accused-petitioner was that he along with his co-accused while armed with weapons attacked upon the complainant party due to which four persons received injuries and subsequently, one injured succumbed to the injuries---Record showed that there were six eye witnesses of the occurrence out of which three were injured during the occurrence---Reportedly, petitioner/accused was involved in six other criminal cases, out of which, one case under S.7 of Anti-Terrorism Act, 1997 had also been registered against him---No escape from the fact that petitioner/accused was nominated in the FIR with a specific role of causing fire arm injury to one injured---Said injured had accused the petitioner and stood by his statement---Sufficient material on record was available to connect the petitioner/accused with the crime---Offences fall under the prohibitory clause of S.497, C.r.P.C.---Accused-petitioner had failed to make out a case for grant of pre-arrest bail---Ad-interim bail earlier granted to the accused-petitioner was recalled, in circumstances.

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

----Ss. 497 & 498---Bail---Deeper appreciation of evidence---Scope---While deciding bail application, before recording of evidence in the trial Court, only tentative assessment is to be made by the Court and it is not permissible to go into details of evidence in one way or the other which may prejudice the case of either party.

PLD 1994 SC 65; PLD 1994 SC 88; 2021 SCMR 111 and 2020 SCMR 937 rel.

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

----S.498---Pre-arrest bail---Scope---Bail before arrest could not be claimed as a matter of legal right in each case and also it could not be granted in each case, unless legal requirements laid down are met---Grant of bail before arrest may cause setback in investigation and stand as stumbling block in the way of recovery of incriminating articles.

PLD 1994 SC 133 rel.

Raja Gul Nawaz for Petitioner.

Jan Muhammad Khan for the Complainant.

Fahad Ali, State Counsel.

Petitioner in person.

2021 M L D 1267

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Messrs FARMACEUTICS INTERNATIONAL \ through Proprietor---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of National Health Services, Regulation and Coordination and 5 others---Respondents

Writ Petition No.582 of 2018, decided on 17th January, 2019.

Drugs (Licensing, Registering and Advertising) Rules, 1976---

----Rr.5(2-A), 12 & 16---Constitution of Pakistan, Art. 199---Constitutional petition---Drugs manufacturing licence---Cancellation---Petitioner was a pharmaceutical company and was aggrieved of cancellation of its drugs manufacturing licence---Validity---Requirements of Drugs (Licensing, Registering and Advertising) Rules, 1976, could not be relaxed for petitioner---Order issued by authorities did not address contentions of petitioner regarding M.Sc. in Hematology Technology was equivalent to M.Sc. in Medicine---Authority was ready to reconsider appeal of petitioner provided it would cure all its deficiencies and appoint staff, including quality control incharge and production incharge, having experience and qualifications required under Drugs (Licensing, Registering and Advertising) Rules, 1976---High Court set aside the order passed by authorities and remanded the matter for decision afresh---Constitutional petition was allowed accordingly.

Jameel Hussain Qureshi for Petitioner.

Hafiz Asif Ali Tamboli for Respondents.

Shumaly Aziz, Assistant Attorney-General.

2021 M L D 1280

[Islamabad]

Before Ghulam Azam Qambrani, J

NASIR NAVEED through Attorney---Petitioner

Versus

NATIONAL DEFENCE UNIVERSITY, ISLAMABAD (NDU) through President and 2 others---Respondents

Writ Petition No.2567 of 2020, decided on 29th March, 2021.

Educational Institution---

----Admission, cancellation of---Absence from university--- Petitioner was aggrieved of cancellation of his admission of Ph.D due to his absence from university for two years---Validity---Petitioner remained absent from university for more than two years without obtaining any permission and left of USA in connection with his job in year 2016---Petitioner was asked to make himself available for appearing before University Examination and Research Committee (UERC) but he insisted to appear online in the meeting of UERC, which was not covered under Academic Regulations of the university---Petitioner was away from Pakistan for an indefinite period, as such, his admission was rightly cancelled by the university after adopting proper procedure provided in Academic Regulations of the university---High Court declined to interfere in the decision made by university--- Constitutional petition was dismissed, in circumstances.

Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842 rel.

Jameel Hussain Qureshi for Petitioner.

Babar Bilal for Respondents Nos.1 to 2.

Binyamin Abbasi for Respondents No.3.

2021 M L D 1313

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD IMRAN and another---Petitioners

Versus

MULTAN and 5 others---Respondents

C.R. No.97 of 2018, decided on 2nd April, 2021.

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

----S.12---Civil Procedure Code (V of 1908), O.VI, R.17 & O.VII, R.11---Suit for specific performance---Amendment in pleadings---Rejection of plaint---Scope---Petitioners, in the presence of an agreement to sell between respondent and vendor, purchased the suit property, as such, they were arrayed as defendants in the suit for specific performance---Petitioners filed application for rejection of plaint whereas respondent filed application for amendment of plaint to incorporate the plea for cancellation of transfer letters---Trial Court accepted the application of respondent whereas dismissed that of petitioners---Validity---Petitioners, in view of S.27 of Specific Relief Act, 1877, had to show that they were bona fide purchasers for consideration without notice of earlier contract and once it was done, the onus would be on the respondent that such was not the case---Plea of respondent could only succeed if the petitioners failed to prove that they were bona fide purchasers for value without notice---Factum of transfer of property having come to light after filing the suit, therefore, plaint was rightly allowed to be amended---No jurisdictional error was committed by the Trial Court---Revision petition was dismissed.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 ref.

Muhammad Ashraf v. Ali Zaman and others 1992 SCMR 1442 rel.

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

----S.19---Award of compensation in certain cases in lieu of specific performance---Scope---If in a case, where any person is suing for the specific performance of a contract and seek compensation and the court is of the opinion that specific performance ought not to be granted, the court may hold the plaintiff to be entitled to compensation for that breach.

Kashi Prasad and others v. Baiju Paswan and others AIR 1953 Patna 24; Shakuntla Devi and another v. Harish Chandra and another AIR (39) 1952 Allah. 602; N. Thippu Sultan v. T. Krishnaswami Naidu and others AIR 1955 Madras 591 and Messrs Nigar Pictures, Karachi v. Messrs United Brothers, Lahore and 6 others PLD 1970 Kar. 770 rel.

Zulfiqar Ali Abbasi and Shahid Munir for Petitioners.

M. Wajid Hussain Mughal and Ghulam Qasim Bhatti for Respondent No.1.

Usman Rasool Ghumman for C.D.A.

Ex parte for Respondents Nos.2 to 4 and 6.

2021 M L D 1543

[Islamabad]

Before Miangul Hassan Aurangzeb and Tariq Mehmood Jahangiri, JJ

MARYAM BEGUM (AKA MS. MONI)---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior, Islamabad

and another---Respondents

Intra Court Appeal No.274 of 2021, decided on 21st June, 2021.

Constitution of Pakistan---

----Art.4---Extension of visa to a foreigner, grant of---Scope---Vested right---Scope---Extension in visa of foreign national residing in Pakistan---Vested right to claim right to extension in visit visa of a foreign national---Scope---Appellant impugned order whereby her Constitutional petition against Ministry of Interior for refusing to grant No Objection Certificate (NOC) for extension of visit visa, was dismissed---Contention of appellant, inter alia, was that she was married to a Pakistani national and was residing in Pakistan for the last 23 years, and as such, had a right to be granted extension of visa falling in category of "stay with husband visa"---Validity---Appellant could have applied for Pakistani citizenship under the Citizenship Act, 1951 but did not intend to do so as she did not want to give up her original citizenship---Appellant had no vested right to be granted family visit visa for indefinite period of time and discretion exercised by the competent authority in present case was not shown to be arbitrary or fanciful---Impugned order was therefore rightly passed---Intra-court appeal was dismissed, in circumstances.

Owais Shams Durrani and others v. Vice-Chancellor, Bacha Khan University, Charsadda and another 2020 SCMR 1041; N.W.F.P Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848; Muntizma Committee v. Director KA PLD 1992 Kar. 54; Mahmoona v. Ilam Din PLD 1984 Lah. 223; A.F. Farms and Industries v. Development Commr AIR 1953 Assam 155; Mahboob Khan v. Deputy Commissioner AIR 1953 Assam 145 and Dineshcharan v. State of MB AIR 1953 Madh-B 165 rel.

2021 M L D 1616

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Raja SHAUKAT AZIZ BHATTI---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and another---Respondents

Writ Petition No.2604 of 2017, decided on 28th July, 2017.\

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

----S.103-AA---Constitution of Pakistan, Art.199---Constitutional petition---Election dispute---Alternate and efficacious remedy---Non-filing of appeal---Petitioner assailed notification issued by Election Commission whereby his earlier notification declaring him returned candidate was withdrawn---Validity---Petitioner was seeking issuance of writ of certiorari against order of Election Commission---High Court was to exercise jurisdiction under Art.199 of the Constitution only if it was satisfied that no other adequate remedy was provided by law---Under subsection (4) to S.103-AA of Representation of the People Act, 1976, there was a remedy of appeal against order passed by Election Commission---For High Court to assume jurisdiction in such matter by altogether ignoring subsection (4) to S.103-AA of Representation of the People Act, 1976, as well as the mandate of Art.199 of the Constitution, would tantamount to reading a law with contempt---At times statutory remedy was inadequate either because all grounds open to petitioner in Constitutional petition were not available to him in statutory appeal or because statutory appeal / remedy could not be availed of unless some onerous condition such as deposit of full amount of disputed levy or penalty was required to be paid by petitioner, such could not be said of the remedy of appeal under subsection (4) to S.103-AA of Representation of the People Act, 1976---High Court declined to interfere in the matter as remedy of appeal to Supreme Court was available to petitioner---Constitutional petition was dismissed, in circumstances.

Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 and Aftab Shaban Mirani v. Muhammad Ibrahim Jatoi (C.P. No.369 of 2008) ref.

Tanveer Iqbal and Malik Waheed Anjum for Petitioner.

Sardar Muhammad Latif Khan Khosa and Shahid Mehmood Mughal for Respondent No.2.

Muhammad Arshad, Director General (Law), and Malik Mujtaba, A.D.G. E.C.P.

2021 M L D 1642

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Messrs DANCOM PAKISTAN (PVT.) LIMITED---Appellant

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY---Respondent

F.A.O. No.108 of 2008, decided on 29th April, 2021.

Pakistan Telecommunication (Reorganization) Act (XVII of 1996)---

----Ss.7 & 23(3)---Access Promotion Rules, 2004, R.12---Access Promotion Regulations, 2005, Reglns. 9(4) & 11---Appeal---Imposition of fine---International telephony traffic data, non-providing of---Universal Service Fund (USF), calculation deferring of---Appellant company was a licensee engaged in Long Distance and International Telecommunication System (LDI)---Pakistan Telecommunication Authority (PTA) imposed fine on appellant for its failure in providing information pertaining to international telephony traffic data and deferred calculation of USF---Validity---Requirement of providing accurate information to PTA regarding total number of minutes of incoming international telephony service that was carried by appellant and delivered to communication system of PTCL by the country of origin was not just an explicit requirement under R.12(1)(a) of Access Promotion Rules, 2004---Such was also a requirement under licence issued by PTA to appellant---Provision of inaccurate information by an LDI licensee to PTA was a contravention of explicit provision of Access Promotion Rules, 2004 and Access Promotion Regulations, 2005---Pakistan Telecommunication (Reorganization) Act, 1996 while deferring calculation of USF payable by appellant until the outcome of arbitration proceedings and decision of Court, could not have imposed fine under S.23 of Pakistan Telecommunication (Reorganization) Act, 1996---Fine under S.23 of Pakistan Telecommunication (Reorganization) Act, 1996, could be imposed where PTA determined that appellant had violated R.12(1)(a) of Access Promotion Rules, 2004 by misreporting number of minutes of incoming international telephony service---High Court directed PTA to return amount of fine deposited by appellant company and order of imposing fine was set aside---Appeal was allowed accordingly.

Bharat Sanchar Nigam Limited v. Reliance Communication Limited 2011 (1) SCC 394; World Call v. P.T.A. 2016 SCMR 475; National Silk and Rayon Mills v. Federation of Pakistan 2015 MLD 995; SNGPL v. OGRA PLD 2014 Lah. 167 and Sardar Sher Bahadur Khan v. Election Commission of Pakistan PLD 2018 SC 97 ref.

Muhammad Shahzad Shaukat for Appellant.

Barrister Munawar Iqbal Duggal and Hassan Shehzad for Respondent.

Khurram Siddiqui, Director (Law and Research), P.T.A.

Zawar ul Hassan, Deputy Director (CPD), P.T.A.

Ch. Adil Javed, Assistant Director (Legal), P.T.A.

2021 M L D 1669

[Islamabad]

Before Tariq Mehmood Jahangiri, J

BUSHRA ZIA---Appellant

Versus

MANSOOR NAWAB and another---Respondents

Regular Second Appeal No.05 of 2018, decided on 2nd August, 2021.

Civil Procedure Code (V of 1908)---

----S.100---Second appeal---Concurrent findings of courts below---Framing of issues by Trial Court---Scope---High Court in second appeal did not have jurisdiction to go into question relating to weight to be attracted to a particular piece of evidence---Where discretion had been judicially exercised on sound principles by Trial Court and same was affirmed by Appellate Court, then High Court in second appeal, would not interfere with such discretion unless same was contrary to law.

Naseer Ahmed Siddique through legal heirs v. Aftab Alam and another PLD 2011 SC 323; Keramat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191; Bashir Ahmed v. Mst. Taja Begum and others PLD 2010 SC 906; Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs 2008 SCMR 855 and Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 rel.

Ahmed Bashir for Appellant.

Muhammad Ali Imran for Respondents Nos.1 and 2.

2021 M L D 1689

[Islamabad]

Before Lubna Saleem Pervez, J

Mst. HASSAN JAN and 8 others---Appellants

Versus

Mst. BUSHRA ZUBAIR and 3 others---Respondents

R.F.A. No.182 of 2020, decided on 3rd May, 2021.

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

----S.17---Specific Relief Act (I of 1877), Ss. 12 & 54---Suit for specific performance and permanent injunction---Registered documents---Sanctity---Trial Court decreed the suit of the plaintiff/respondent---Appellants/defendants contended that the registered documents (Power of Attorney, sale-agreement and sale-deed) executed by their predecessor (seller) were forged, fictitious and fabricated---Held, that not all legal formalities/requirements (regarding thumb-impression, signature etc of attorney, principal/seller and the like) were fulfilled while registering irrevocable General Power of Attorney and sale-deed---In oral evidence, the concerned official produced the record of registration in respect of Power of Attorney as well as sale-deed; one marginal witness himself corroborated the plaintiff while son of other late marginal witness verified the signature of his father on the document---Even thumb impression/signature of the deceased seller was verified through the comparison process conducted by the Trial Court---Trial Court had considered documentary and oral evidence to form the view that the deceased seller had sold his plot to the plaintiff---No illegality or infirmity was found in the impugned judgment and decree passed by the Trial Court---Appeal was dismissed, in circumstances.

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

----S.17---Specific Relief Act (I of 1877), Ss. 12 & 54---Suit for specific performance and permanent injunction---Registered documents---Presumption of truth---Trial Court decreed the suit of the plaintiff/respondent---Appellants/defendants contended that the registered documents (Power of Attorney, sale-agreement and sale-deed) executed by their predecessor (seller) were forged, fictitious and fabricated---Held, that agreement, power of attorneys and deeds etc, duly registered by Registration Authority in accordance with law became legal documents and carried presumption of truth and required strong evidence to cast suspicion on the authenticity of such documents---Onus was on the person who challenged the authenticity of the registered documents to prove his claim with strong, reliable and confidence inspiring evidence---In the present case, mere verbal assertions of the appellants were not enough to declare the registered sale-deed and power of attorney to be fake, fabricated and fictitious---Genuineness of registered documents, having presumption of correctness and validity attached with them, could not be dismissed without any reliable evidence---Appeal was dismissed.

Nawab Din v. Bagh 1994 SCMR 1975; Al-Haj Sheikh Abdul Hafeez v. Suhail Zaman PLD 2020 Kar. 208 and The Government of Iraq through Embassy of The Republic of Iraq v. Deedar Hussain 2016 YLR 2246 ref.

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

----Ss.12 & 54---Limitation Act (IX of 1908), Art.113---Suit for specific performance and permanent injunction---Limitation---Plaintiff filed the suit after ten years of executing of sale-agreement---Held, that suit filed by the respondent was well within time as no specific date for transfer of suit-plot was mentioned on the sale-agreement, so limitation would start when the performance was refused---Appeal was dismissed.

Mrs. Sherbano v. Kamil Muhammad Khan PLD 2012 Sindh 293; Malik Imam Bux v. Mehrab 1995 CLC 109; Muhammad Yasin v. Allah Din 1991 CLC 1457 and Muhammad Shafi v. Muhammad Sarwar and others 1997 CLC 1231 ref.

Syed Muhammad Ali Bukhari for Appellant.

Malik Talha Ahmad Rahim and Suriya Mariam Khaleeq for Respondents.

2021 M L D 1815

[Islamabad]

Before Babar Sattar, J

SAMIA KHAN---Appellant

Versus

FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, ISLAMABAD---Respondent

R.F.A. No.03 of 2021, decided on 8th April, 2021.

(a) National Database and Registration Authority Ordinance (VIII of 2000)---

----Ss.5 & 19---Limitation Act (IX of 1908), S. 3, Sched. I & Art.120---Computerized National Identity Card (CNIC), primacy of---Presumption of truth---Rebutting evidence, standard of---Wrong date of birth in Secondary School Certificate (SSC)---Bona fide case---Appellant/plaintiff was seeking to have her academic transcripts/credentials verified by the Higher Education Commission (HEC)---Higher Education Commission was reluctant due to the reason that her date of birth in her SSC being 05.11.1988 was in contradiction with the date of birth in her CNIC, passport and driving licence which was 19.12.1987---Birth certificate reflected the date of birth of the appellant as 19.12.1987, on the basis of which CNIC was issued recoding same date of birth---CNIC was the primary document on the basis of which passport/travel documents were to be issued and identity for purposes of casting vote was to be proved---Same date of birth was reflected in appellant's domicile, passport and driving licence---CNIC would be given primacy, and presumption of truth was attached to it---Mere fact that the SSC reflected different date of birth was not sufficient to rebut the said presumption of truth---Dismissing such party's suit on grounds of limitation meant that her SSC would continue to reflect one date of birth and all her other identity documents would continue to reflect another---Person could not have two dates of birth standing together---Appeal was allowed; suit of the appellant was decreed; and respondent was directed to issue a new SSC reflecting the date of birth according to CNIC.

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

----S.3, Sched. I & Art. 120---Incorrect date of birth in Secondary School Certificate (SSC)---Suit for correction of date of birth---Limitation period, accrual of---Liability, determination of---Trial Court assumed that time for purposes of limitation would begin to run from the date of the issuance of SSC---Held, that Court had no reason to assume that the discrepancy was in appellant's knowledge at the time of issuance of the SSC---Mistakes could creep into such information due to a fault on part of parents/school---Appellant had not reached the age of majority at the time of providing personal information to be sent to the education board, hence she could not be held liable for any mistake in record---Focus of the student would be on the marks recorded on the certificate and not ancillary details such as the date of birth---Appellant had no collateral/ulterior purpose---Appellant's birth certificate, CNIC, passport and driving licence all reflected her correct date of birth, consequently it was not unfathomable that she had never focused on the date of birth as recorded on her SSC until her attention was drawn to the same by the Higher Education Commission---Time for purposes of limitation began to run when claim was denied thereby giving rise to a cause of action---High Court set aside the findings of the Trial Court that the suit was barred by time.

(c) National Database and Registration Authority Ordinance (VIII of 2000)---

----Ss.5, 7, 9 & 10---Date of birth---Presumption---Generally, in case of disparity between date of birth as recorded on one's educational testimonials and his/her Computerized National Identity Card (CNIC) or birth certificate, the presumption of truth would attach to the date recorded in the birth certificate and CNIC issued by National Database and Registration Authority (NADRA)---Such record was not infallible and was to be treated as more authentic---Said presumption could be rebutted and overturn through good/better/superior/compelling evidence in individual cases---Trial Court was responsible to decipher true facts to determine whether such presumption had been rebutted.

Akhtar Hussain Zaidi v. Muhammad Yaqinuddin 1988 SCMR 753; Razia Khatoon v. Dr. Roshan H. Nanji and another 1991 SCMR 840 and Abdul Khaliq and another v. Maulvi Noor Muhammad and others PLD 2005 SC 962 ref.

(d) National Database and Registration Authority Ordinance (VIII of 2000)---

----Preamble---Scope---Legislature wished to create an authentic national database that would be repository of particulars of citizens including their dates of birth, death, marriage, divorce etc.

(e) National Database and Registration Authority Ordinance (VIII of 2000)---

----Preamble---Personal particulars, verification and preservation of---Scope---Education Boards, record of---Purpose of boards of education/universities was not to verify/ascertain the particulars of citizens such as their date of birth---National Database and Registration Authority Ordinance, 2000 was a special law promulgated for purposes of maintaining a database to record and verify and preserve the personal particulars of citizens.

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

----Preamble---Scope---Provisions of Limitation Act, 1908 were mandatory---Purpose of the said Act was to ensure: firstly, that legal disputes would not be regurgitated indefinitely; and secondly that rights acquired certainty and litigants were not indolent in asserting their rights and pressing their claims---Purpose of the Act was not to frustrate adjudication of a lis that amounted to a continuing cause of action.

Ms. Fatima Tu Zara Butt for Appellant.

Mir Afzal Malik for Respondent.

2021 M L D 1846

[Islamabad]

Before Miangul Hassan Aurangzeb, J

RELIANCE IT SOLUTIONS (PVT.) LTD. Through Authorized Representative---Petitioner

Versus

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

Writ Petition No.3794 of 2019, decided on 5th May, 2020.

Public Procurement Rules, 2004---

----R.36---Constitution of Pakistan, Art.199---Constitutional petition--- Procurement procedure---Invitation of Licence (IFL)---Awarding criteria---Licence to provide track and trace system for tobacco products was awarded to respondent---Petitioner assailed process of awarding of licence on the plea that criteria of licence was amended---Validity---Formula for computing marks for a bidder's financial bid was omitted in amended IFL thus no marks were to be awarded for a bidders financial bid---Criteria for grant of licence under amended IFL was the lowest financial bid of a technically qualified bidder---Reason why marks were to be allocated for a bidder's technical bid was because only those bidders who were able to obtain 70 or more marks were to be considered as technically qualified---Under amended IFL no marks could be given to a bidder for its financial bid, the marks obtained by a bidder for its technical bid would only determine whether a bidder was technically qualified or not---No formula existed to determine a bidder's score for its financial bid under amended IFL, and question for decision to grant licence to a bidder on the basis of combined score for a bidder's technical as well as financial bid did not arise---No reason existed for Federal Board of Revenue to announce technical score of bidders as such score was only to determine whether or not a bidder had been technically qualified---Only technical bids of technically qualified bidders could be opened under terms of amended IFL---Technical score of bidder played no role in procurement process in question---If petitioner did not understand import of changes made in IFL and amended evaluation criteria, it had only itself to blame for unsavory situation it found then itself in---High Court declined to interfere in procurement process---Constitutional petition was dismissed, in circumstances.

Salman Akram Raja, Asad Ladha and Malik Ghulam Sabir for Petitioners.

Arshid Mehmood Kiani, Deputy Attorney-General for Respondent.

Arshid Mehmood Kiani, Deputy Attorney-General.

Muhammad Nadeem Khan Khakwani, Assistant Attorney-General.

Syed Ali Zafar and Jehanzeb Sukhera for F.B.R./respondents Nos.2 to 6.

Khalid Ishaq, Law Officer, NADRA/Respondent No.11.

Noor ul Najam, Departmental Representative, P.P.R.A./Respondent No.07.

Salman Aslam Butt and Anique Salman Malik, for Respondent No.8./N.R.T.C.

Imtiaz Rashid Siddiqui, Hasnain Ibrahim Kazmi, Shehryar Kasuri and Raza Imtiaz Siddiqui and Akram Shaheen for Respondent No.10/N.I.F.T.

Umer Ijaz Gillani and Haider Waheed for Respondent No.12.

2021 M L D 1864

[Islamabad]

Before Miangul Hassan Aurangzeb, J

SAJJAD and another---Petitioners

Versus

MUHAMMAD YOUNAS KHILJI and 2 others---Respondents

Writ Petition No.1215 of 2016, decided on 29th April, 2016.\

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

----S.17---Constitutional petition---Eviction petition allowed by the Rent Controller---Petitioners were directed to handover vacant possession of the rented premises to respondent within a period of fifteen days---Petitioners filed appeal which was dismissed by the District Court---Petitioners denied their relationship as tenants and contended that the rented premises were orally gifted by respondent to one of the petitioners and respondent had given possession of the rented premises to the petitioners---Petitioners had also instituted a suit for declaration and permanent injunction in Civil Court which was yet pending adjudication---Held, that until a declaration as to the ownership of the rented premises in favour of petitioner be made by the Civil Court after establishment of factum of alleged oral gift, petitioner could not resist his eviction from the rented premises---Petitioner impliedly admitted/acknowledged that prior to the said alleged oral gift, respondent was the owner of the rented premises---Petitioners must first vacate the rented premises and re-gain possession of the same, after establishing title to the same through a declaration by Court---Constitutional petition was dismissed accordingly.

Iqbal v. Rabia Bibi PLD 1991 SC 242; Jumma Khan v. Zarin Khan PLD 1999 SC 1101; Barkat Masih v. Manzoor Ahmad 2006 SCMR 1068; Abdul Rasheed v. Maqbool Ahmed 2011 SCMR 320; Gohar Ali Shah v. Shahzada Alam 2000 MLD 82; Muhammad Akmal v. Faisal Saeed Mirza 2004 CLC 862; Muhammad Parvez v. Additional Rent Controller, Lahore 2013 YLR 1881 and Refhat Hamidee v. Abdul Aziz 2013 YLR 1898 ref.

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

----S.2(g)---"Landlord"---Definition---Definition of 'landlord' under the Islamabad Rent Restriction Ordinance, 2001 was different from the one under the Urban Rent Restriction Ordinance, 1959---Under S.2(g) of the Ordinance, 2001, "landlord" inter-alia meant 'the owner of the premises'---Such phrase was conspicuously absent from the definition of "landlord" under Urban Rent Restriction Ordinance, 1959.

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

---S. 24---Transfer petition, pendency of---Power of Court to proceed---Absence of injunction order---Petitioners contended that he had filed a petition before the High Court praying for the transfer of the appeal from one Court to another; and that Appellate Court decided the appeal without waiting for a decision on the said petition---Held, that mere pendency of such a transfer petition, in the absence of the stay order, could not stop a court from proceeding with the case.

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

----Art.119---Oral gift---Onus to prove, shifting of---In view of the denial of the factum of the oral gift by respondent, the onus to prove the gift shifted on to the petitioners.

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

----Arts.115 & 119---Landlord and tenant, relationship---Burden to prove---Denial of the relationship of landlord and tenant placed a heavy burden on the petitioners to establish that they were not tenants in the rented premises.

Muhammad Illyas Sheikh for Petitioner.

Abdul Shakoor Peracha for Respondent No.1.

2021 M L D 1894

[Islamabad]

Before Miangul Hassan Aurangzeb and Lubna Saleem Pervez, JJ

CAPITAL DEVELOPMENT AUTHORITY (CDA), ISLAMABAD through Chairman and 3 others---Appellants

Versus

Messrs RAINBOW ENTERPRISES (PVT.) LTD. through Managing Director and another---Respondents

R.F.A. No.31 of 2018, decided on 21st September, 2020.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Limitation Act (IX of 1908), First Sched. Art. 56---Suit for declaration, injunction and recovery of money---Appreciation of evidence---Limitation---Cause of action, accrual of---Determination---Work done---Suit for recovery of money etc. was filed by respondents/plaintiffs on 12-04-2017---Respondents/plaintiffs sought recovery of payments due for the work done and services performed between September 2012 and July 2013---Trial Court decreed the suit in favor of respondents / plaintiffs --- Validity --- After 25-07-2013, respondents/plaintiffs did not do any work nor performed services under contract---In terms of Art.56 of First Sched. to Limitation Act, 1908, cause of action for instituting a suit for recovery for work done accrued to respondents/plaintiffs on 25-07-2013---Suit instituted by respondents/plaintiffs was beyond limitation period of three years prescribed by law---Dates and material contents of document were blacked out but nonetheless copies of original documents were allowed by Trial Court to be exhibited---High Court set aside judgment and decree passed by Trial Court and remanded the case for decision afresh---Appeal was allowed accordingly.

Government of N.-W.F.P. v. Akbar Shah 2010 SCMR 1408; Haji Rehmdil v. The Province of Balochistan 1999 SCMR 1060; Muhammad Buta v. Habib Ahmad PLD 1985 SC 153; Muhammad Sami v. Additional District Judge, Sargodha 2007 SCMR 621; Commissioner of Income Tax v. Hakim Ali Zardari 2006 SCMR 170; Haji Ghulam Rasool v. Government of the Punjab 2003 SCMR 1815; Nawab Din v. Muhammad Hussain 2004 CLC 269; Ali Hasan v. Manzoor Ahmad 1997 CLC 268; Sh. Allah Rakha v. U.P. Church 1993 MLD 2126; Jam Muhammad Ismail v. Jam Bahawal 2012 MLD 1545; Ahsan Ali v. District Judge PLD 1969 SC 167 and Rahat & Co. v. Trading Corporation of Pakistan PLD 2020 SC 366 rel.

Amir Latif Gill for Appellants.

Syed Mastan Ali Zaidi and Ms. Sana Javed for Respondents.

2021 M L D 1909

[Islamabad]

Before Aamer Farooq, Tariq Mehmood Jahangiri, JJ

ZAHID IDREES MUFTI---Appellant

Versus

DEPUTY COMMISSIONER, CAPITAL DEVELOPMENT AUTHORITY and 2 others---Respondents

I.C.A. No.236 of 2021, decided on 27th May, 2021.

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

----Ss.49-C & 36---Removal of building, etc., erected or used in contravention of the Capital Development Authority Ordinance, 1960 (Ordinance) ---Appeal and review---Maintainability---Scope---Petitioner was aggrieved of order passed by Deputy Commissioner, Capital Development Authority (CDA) under S.49-C of Capital Development Authority Ordinance, 1960, whereby he was directed to pay certain fine within five days as well as to remove the non-confirming use within a period of 15 days---Constitutional petition challenging such order was dismissed---Validity---Order passed by Deputy Commissioner was appealable under S.36 of Capital Development Authority Ordinance, 1960---Appeal to the Commissioner having been provided against the order of Deputy Commissioner, hence, the intra court appeal was barred under S.3 of the Law Reforms Ordinance, 1972---Appeal was dismissed.

Deputy Commissioner / Administrator, District Council Attock and another v. Lawrencepur Woolen Textile Mills Ltd 1999 SCMR 1357; Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153; Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 ref.

(b) Law Reforms Ordinance (XII of 1972)---

----S.3---Intra Court Appeal---Scope---Section 3 of the Law Reforms Ordinance, 1972, provides that no appeal shall lie, if the application brought to the High Court under Art.199 arises out of "any proceedings" in which the law applicable provided at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order.

2021 M L D 1916

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Messrs OPI GAS (PRIVATE) LIMITED---Petitioner

Versus

GOVERNMENT HOLDING (PVT.) LIMITED and others---Respondents

Writ Petition No.1930 of 2021, decided on 5th July, 2021.

(a) Constitution of Pakistan---

----Art.199---Arbitration Act (X of 1940), S.34---Constitutional petition---Enforcement of contractual obligation---Arbitration clause---Scope---Petitioner assailed letter issued by respondent whereby it had been declared that its contractual relationship with the petitioner for supply of Liquefied Petroleum Gas (LPG) had come to an end---Validity---High Court, in exercise of its constitutional jurisdiction, could not direct respondent to continue its contractual relationship with the petitioner despite the fact that the period for which the contract was executed had lapsed---If petitioner was of the view that the decision of respondent not to further extend the term of contract was in violation of the provisions of contract, at best, the petitioner's remedy laid in damages and not by seeking a writ of mandamus directing respondent to continue its contractual relationship with the petitioner---Such dispute could be resolved in accordance with the arbitration clause of the contract---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Enforcement of contractual obligation---Scope---Ordinarily, the High Court, in exercise of its jurisdiction under Article 199 of the Constitution, does not entertain a petition seeking the enforcement of rights under a contract executed with an instrumentality of the State.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Alternate remedy---Scope---When an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the constitutional jurisdiction of the High Court for the issuance of a writ.

(d) Constitution of Pakistan---

----Art.199---Arbitration Act (X of 1940), S.34---Constitutional jurisdiction---Power to stay legal proceedings where there is an arbitration agreement---Scope---Where there exists an arbitration agreement, the parties are required to get their disputes arising out of the contract adjudicated by the domestic forum created by them.

(e) Constitution of Pakistan---

----Art.199---Arbitration Act (X of 1940), S.34---Constitutional petition---Power to stay legal proceedings where there is an arbitration agreement---Scope---Where there is an arbitration clause in the contract between the parties, a writ petition cannot be instituted to question the termination of the contract and/or to seek specific performance of the contract.

Mumtaz Ahmad v. Zila Council, Sahiwal 1999 SCMR 117 rel.

Abdul Qayyum Khan v. District Officer, Passenger and Freight 2003 MLD 670, Messrs Frontier Construction Company v. Bahauddin Zakariya University 2006 MLD 978; Muhammad Hayat Khan v. Tehsil Municipal Administration 2009 YLR 2259; Signage Security System v. CDA and others 2010 CLC 567; Mst. Zahida Maqbool v. Member (Colonies) Board of Revenue 2010 YLR 1734; Messrs Muhammad Siddiq Chaudhry v. Higher Education Commission 2011 CLC 863; Wajahat Ali v. Government of Khyber Pakhtunkhwa 2013 YLR 2132; N.A.A. Consulting Engineers v. Metropolitan Corporation 2014 MLD 1795; Gandapur Construction Company v. Government of Khyber Pakhtunkhwa 2014 CLD 400; Uch Power (Pvt.) Ltd. v. Government of Pakistan, Federal Board of Revenue 2017 PTD 1215 and M/s. Bisra Stone Lime Company Limited v. Orissa State Electricity Board AIR 1976 SC 127 ref.

Khurram M. Hashmi and Noman A. Farooqi for Petitioner.

2021 M L D 1930

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Dr. ALEEM AKHTER---Appellant

Versus

MUHAMMAD ATHAR SHAHEEN and others---Respondents

Regular First Appeal No.04 of 2021, decided on 3rd August, 2021.

Civil Procedure Code (V of 1908)---

----O.XVII, R.3---Production of evidence---Adequate opportunities---Suit for declaration, permanent injunction and specific performance---Suit was dismissed due to non-production of evidence---Appellant contended that no notice for production of evidence was given rather some forgery/interpolation had been committed in the order sheet of Trial Court---No complaint before the relevant High Court, District and Sessions Judge or Member Inspection Team was submitted for conducting an inquiry of allegations against judge of Trial Court---Held, that appellant/plaintiff, despite repeated orders, failed to record testimony of his witnesses, delayed the proceedings on one pretext or the other---Conduct of appellant/plaintiff denied him the right to claim equity, when he had not come to the Court with clean hands--Appeal was dismissed accordingly.

Muhammad Ali v. Province of Khyber Pakhtunkhwa through Secretary, Elementary and Secondary Education, Peshawar 2010 SCMR 673, Moon Enterpriser CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited, through General Manager, Rawalpindi and another 2020 SCMR 300 and Rana Tanveer Khan v. Naseer Ud Din and others 2015 SCMR 1401 ref.

Muhammad Habib Ullah Khan for Petitioner.

Ms. Zainab Rashid for Respondents Nos.1 and 2.

Respondent No.3 deceased.

Respondent No.4 ex parte.

Ms. Mehraj Tareen for Respondent No.5.

Shajjar Abbas Hamdani for Respondent No.6.

2021 M L D 1961

[Islamabad]

Before Athar Minallah, CJ

HAMZA AFSAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.216-B of 2020, decided on 1st April, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 365-B & 34---Kidnapping, abducting or inducing woman to compel for marriage, etcetera---Bail, grant of---Delayed FIR---Completion of investigation---Further inquiry---Scope---Accused sought post-arrest bail in an FIR registered under Ss. 365-B & 34, P.P.C.---Accused was not nominated in the FIR and was involved in the case after recording of supplementary statement of the complainant---FIR was lodged with the delay of three days---Accused had remained on physical remand but no incriminating material was recovered during that period---Investigation qua the accused was complete and he was not required for the purposes thereof---Role of accused and his involvement in the case required further probe---Petition for grant of bail was allowed, in circumstances.

Manzoor and 4 others v. The State PLD 1972 SC 81 rel.

Qazi Ghulam Dastgir and Malik Nasir Abbas Awan for Petitioners.

M. Atif Khokhar for the State.

2021 M L D 1983

[Islamabad]

Before Ghulam Azam Qambrani, J

Mrs. ZEENIA SATTI---Appellant

Versus

ABDUL KARIM NIAZI and others---Respondents

Regular First Appeal No.336 of 2020, decided on 29th January, 2021.

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

----S.123---Qanun-e-Shahadat (10 of 1984), Art.79---Gift deed, execution of---Oral gift, Acknowledgement of---Marginal witnesses, production of---Scope---Appellant claimed for possession, mesne profits and permanent injunctions, contending that she had not executed any oral or written gift of the suit property in favour of respondent---Respondent claiming the entitlement to the suit house on ground of oral gift by the appellant---Gift deed was a registered document, execution of which had to be proved by producing two marginal witnesses of the same as required under Art. 79 of the Qanun-e-Shahadat, 1984 regarding proof of a document through secondary evidence---Acknowledge of oral gift deed could not be taken into consideration as an evidence of execution of gift---Respondent filed three suits against the appellant/his maternal aunt---In the first and second suit, the respondent did not take the plea that appellant had ever executed any oral or written gift in his favour or ever put him into possession of the suit property---Respondent also had not mentioned an exact date of his coming into possession over the suit property---Court had reasons to believe that respondent came into possession of suit house otherwise than by due process of law---High Court accepted the appeals, directed the respondent to hand over the vacant physical possession of the suit property to the appellant, awarded mesne profit and also granted permanent injunction.

Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044 rel.

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

----S.10---Res subjudice---Change in claim in subsequent suits---After filing of the first and second suits, respondent/plaintiff changed his stance and during pendency of second civil suit filed the third civil suit entirely on a different ground of gift only in order to strengthen his case---Third suit was in contradiction with his stances in the first two suits---Respondent/plaintiff was bound to file a certificate regarding pendency of prior civil suit---Respondent intentionally concealed the facts from the Court that earlier suit was on the same subject matter and between the same parties was already pending adjudication before a Civil Court of competent jurisdiction---Such conduct and concealment of facts led the Court to inference that the respondent had not come to the Court with clean hands---Subsequent suits filed by respondent were not maintainable in law and Trial Court had no need to consolidate all these three suits or frame consolidated issues, and court was under obligation to decide all three suits separately.

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

----O.VIII, R.1---Written statement ---Advocate filed his power of attorney on behalf of respondent/defendant---Respondent was given multiple opportunities for filing of written statement, but he failed to do so---After complete ten months, his right for filing of written statement was closed---According to law there was no rebuttal by the respondent to the claim of appellant as set up in her plaint/suit---Claim of appellant would stand admitted by him due to non-filing of written statement.

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

----O.VIII, R.5(1)---Allegation not denied specifically---Estoppel---Illegal occupation---Mesne profit---Appellant alleged the entitlement of peaceful possession and benefits (mesne profit) of suit house being the lawful owner thereof---Respondent filing copies of lease agreement executed by him with different persons from time to time---Claim of the appellant qua mesne profit remained unchallenged, therefore, the same would be deemed to be admitted and was to be accepted as such---High court declared the appellant entitled to recover handsome amount per month as mesne profit qua the suit house.

Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 and Waqqar Ambalvi v. Faqir Ali and others 1969 SCMR 189 rel.

Appellant in person.

Ahmed Shahzad Awan and Ms. Zill-e-Huma for Respondent No.1.

Ms. Mehraj Tareen for Respondent No.2.

2021 M L D 2003

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

SANA ULLAH AMAN---Petitioner

Versus

FEDERAL OMBUDSMAN and 3 others---Respondent

Writ Petition No.3943 of 2020, decided on 25th May, 2021.

(a) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

----Ss.2(a), 2(f) & 8---Constitution of Pakistan, Art.199---Constitutional petition---Federal Ombudsman for Protection against Harassment of women at workplace making enquiry into complaint---Interlocutory order---Maintainability---Scope---Petitioner assailed the concurrent dismissal of his application for rejection of complaint filed against him under Protection against Harassment of Women at the Workplace Act, 2010---Contention of respondents, inter alia, was that the proper course would be to wait for final outcome of the complaint--Validity---Jurisdiction in the matter was assumed by observing that the Protection against Harassment of Women at the Workplace Act, 2010, was not confined to the relationship of an employer and employee but it extended to all kinds of sexual harassment with any woman by misusing/exploiting official position and capacity---Final culmination by a forum on the point of jurisdiction being pressed through the petition could not be termed a pending lis on the subject---Question of jurisdiction was of much significance and when agitated was to be decided first because when the concerned forum was not vested with the authority to adjudicate the matter then all subsequent proceedings / orders would be considered as "proceedings/orders without jurisdiction"---Constitutional petition was held to be maintainable.

Province of Punjab through Secretary to Government of Punjab, Communication and Works Department, Lahore and another v. Messrs Muhammad Tufail and Company through Muhammad Tufail (deceased) through Legal Heirs PLD 2017 SC 53 rel.

(b) Jurisdiction---

----Jurisdiction is the foundation upon which superstructure is to be built---In its existence/presence, the adjudication is considered legal, otherwise, the whole superstructure built thereon would be considered as without jurisdiction and coram non judice---Concept of jurisdiction is very much rational that whether the person against whom complaint/claim is preferred is liable to be adjudicated by the forum concerned and authority is vested with the role of adjudication or not.

(c) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

----Ss.2(a), 2(f) & 8---Constitution of Pakistan, Art.199---Constitutional petition---Federal Ombudsman for Protection Against Harassment of Women at work place making enquiry into complainant---Accused (petitioner), not an employee---Effect---Petitioner (accused) assailed the concurrent dismissal of his application for rejection of complaint filed against him under Protection against Harassment of Women at the Workplace Act, 2010---Validity---Complainant did not fall in any of the categories of employee contemplated in S.2(f) of the Protection against Harassment of Women at the Workplace Act, 2010, rather according to her own showing, she was working in Pakistan National Accreditation Council---Such express fact could not be ignored---Court could not import any meaning, impression of nature, when same was provided in the statute itself---Only an employee could lodge a complaint against an employer---Complainant herself had stated that there was her meeting with the petitioner in connection with some project---Mere visitation of a woman to the office of an advocate to discuss details of some project could not bring her within the definition of an employee---Constitutional petition was allowed and the proceedings initiated against the petitioner were declared to be illegal, without lawful authority and jurisdiction.

2013 MLD 225; PLD 2019 Lah. 407 and 2019 PCr.LJ 806 distinguished.

CLD 2020 (SC) 1026 and LD 2016 Lahore 433 ref.

PLD 2020 Lahore 54 rel.

(d) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

----Ss.2(a), 2(f) & 8---Accused---Employee---Ombudsman to enquire into complaint---Scope---Accused must be an employee or an employer of the organization and complainant should be an employee of said organization.

PLD 2020 Lah. 54 rel.

(e) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

----Ss.2(a), 2(f) & 8---Accused---Employee---Ombudsman to enquire into complaint---Scope---Every woman is not entitled to bring, lodge a complaint before the Ombudsman but only a woman, who is employee of an Organization and had been sexually harassed by another employee or the employer, according to S.2(h) of the Protection against Harassment of Women at the Workplace Act, 2010 is competent to lodge the complaint---No matter of choice of a woman but is of provision of forum concerned---Protection against Harassment of Women at the Workplace Act, 2010, is a special law and special procedure is provided for adjudication of the complaints---Provisions of Protection against Harassment of Women at the Workplace Act, 2010 cannot be overlooked or ignored.

Aliya Zareen Abbasi for Petitioner.

Ch. Muhammad Tahir Mehmood, A.A.G. for Respondent No.1.

Barrister Ahsan Jamal Pirzada for Respondent No.4.

2021 M L D 2028

[Islamabad]

Before Tariq Mehmood Jahangiri, J

REGINALD CHUDE BJEKWE, NIGERIAN NATIONAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.330 of 2021, decided on 22nd April, 2021.

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

----S.497---Penal Code (XLV of 1860), Ss. 420, 468, 471 & 109---Emigration Ordinance (XVIII of 1979), Ss. 18 & 22---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, fraudulent inducing to emigrate, receiving money, etc. for providing foreign employment---Bail, grant of---Rule of consistency---Scope---Prosecution case was that six Pakistani citizens hired the services of main accused for sending them abroad and that main accused contacted the accused, who got prepared fake UN passports for arranging the visas of UK---Accused visited the Turkish Embassy for the said purpose and presented fake UN passport and UN ID card in the embassy, where he was reported---Investigating Officer stated before the court that till date no report had been received from the UN authorities regarding the genuineness or otherwise of the passport and ID card produced in the embassy by the accused---Prosecution witnesses in their statements recorded under S. 161, Cr.P.C., had implicated the main accused and had not even named the accused---Room in the guest house from where the passports were recovered and where the accused and main accused were staying, was also booked by the main accused---Main accused had already been released on bail after arrest---Co-accused placed at higher rung had been released on bail, hence the accused was also entitled for the grant of bail on the principle of consistency---Petition for grant of bail was accepted, in circumstances.

Ghulab Khan v. Chairman N.A.B and another 2020 SCMR 285 ref.

Hamid Ali v. State 2009 SCMR 734 rel.

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

----S. 497---Bail---Scope---When statute provides for two punishments then for the purpose of bail, the lesser one is considered.

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

----S. 497---Bail---Scope---Ultimate conviction can repair the wrong caused by mistaken relief of bail after arrest but no satisfactory reparation can be offered to the accused for his unjustified incarceration if he is acquitted ultimately.

Ch. Azmat Gujjar for Petitioner/accused.

Saqlain Haider, Assistant Attorney General.

2021 M L D 1

[Sindh (Huderabad Bench)]

Before Khadim Hussain M. Shaikh, J

PREETAM---Appellant

Versus

MADHU DAS GODWAL and another---Respondents

1st Appeal No. 59 of 2018, decided on 2nd April, 2019.

Defamation Ordinance (LVI of 2002)---

----Ss. 3 & 8---Civil Procedure Code (V of 1908), O.VII, R.11---Defamation---Notice of action---Failure to send notice---Rejection of plaint---Scope---Appellant assailed order passed by Trial Court whereby his plaint was rejected under O. VII, R. 11, C.P.C.---Appellant had instituted a suit for defamation against the respondent on the ground that he had got lodged an FIR against him which was disposed of in class "C" and that he had also written a letter to panchayat with false and baseless allegations---Validity---Section 8 of the Defamation Ordinance, 2002, provided that no action would lie unless the plaintiff had given to the defendant fourteen days' notice in writing of his intention to bring an action with particulars of defamatory matter complained of and that too within two months of the publication of the defamatory matter or from the date of gaining knowledge thereof---Appellant had sent notice after one year of the order passed by the Magistrate disposing of the subject FIR under Class "C" and the alleged complaint made by respondent to the panchayat against the appellant---Trial Court had not committed any illegality while passing the impugned order---Appeal was dismissed, in circumstances.

Muhammad Hussain Khan for Appellant.

2021 M L D 12

[Sindh (Huderabad Bench)]

Before Khadim Hussain M. Shaikh, J

Syed MIR MUHAMMAD SHAH---Applicant

Versus

PROVINCE OF SINDH through Secretary Irrigation Department and 3 others---Respondents

R.A. No. 53 of 2019, decided on 2nd May, 2019.

Specific Relief Act (I of 1877)---

---S. 42---Suit for declaration---Right to use water course---Scope---Plaintiff filed suit with the claim that he was irrigating his land through four inches pipe installed in a water course and the Irrigation Authorities while constructing pakka course removed his pipeline---Validity---Plaintiff had not filed any document to show the existence of water course, therefore, patently there was no existence of the alleged water course and the applicant had no vested right or legal character for seeking declaration in terms of S.42 of the Specific Relief Act, 1877---Trial Court had rightly rejected the plaint---Revision application was dismissed, in circumstances.

Muhammad Zaman Zaur for Applicant.

2021 M L D 25

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

Asi SAJJAD ALI and 4 others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. S-7 and S-11 of 2020, decided on 24th February, 2020.

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

----Ss. 343 & 220---Wrongful confinement for three or more days; commitment for trial or confinement by person having authority who knows that he is acting contrary to law---Appreciation of evidence---Benefit of doubt---Scope---Accused persons/police officials were convicted for keeping the detainee in confinement at police station, who was recovered on the order of Sessions Judge passed on an application filed under S. 491, Cr.P.C.---Detainee/complainant had not supported the case of prosecution and had categorically stated that the culprits were with muffled faces whom he had not identified---Prosecution witness, who had moved application before the Sessions Judge with regard to illegal confinement of detainee by the concerned police officials, had also not supported the prosecution case by stating that the accused persons were not the same---Prosecution had failed to prove its case against the accused persons beyond any reasonable doubt---Appeals were allowed and the impugned judgment was set aside.

(b) Criminal trial---

----Conviction---Scope---No conviction can be awarded to an accused until and unless reliable, trustworthy and unimpeachable evidence containing no discrepancy casting clouds over the veracity of prosecution story is adduced by the prosecution.

(c) Criminal trial---

---Benefit of doubt---Scope---Where a single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused appears in prosecution case then accused will be entitled to the benefit of such doubt not as a matter of grace and concession but as a matter of right, hence, single doubt is sufficient to acquit the accused.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Ayaz Hussain Tunio, Muhammad Sachal R. Awan and Ashique Hussain D. Solangi for appellants (in Criminal Appeal No.S-07 of 2020).

Muhammad Hashim Leghari for Appellant (in Criminal Appeal No.S-11 of 2020).

Complainant Ghulam Shabbir and Detainee of the case Asif Ali, are present in person.

Shawak Rathore, Deputy Prosecutor General for the State.

Date of hearing: 24th February, 2020.

JUDGEMENT

ABDUL MAALIK GADDI, J.---By this common judgment, I intend to dispose of both above captioned appeals together as the same arise out of one and common judgment dated 03.01.2020 passed by learned Additional Sessions Judge-III, Dadu in Sessions Case No.82 of 2019 arisen out of crime No.01 of 2019 registered under sections 343, 220, P.P.C. at police station Rajo Dero, whereby the learned trial court after full dressed trial convicted and sentenced the appellants as stated in Point No.2 of the impugned judgment. For the sake of convenience, it would be proper to reproduce Point No.2 of the impugned judgment which reads as under:-

"In view of my findings on point No:1, I am of the view that the prosecution has successfully proved its case against the accused persons namely ASI Sajjad Ali son of Rakhial Khan Jamali, ASI Asif Ali son of Nabi Bux Meerani, PC Adil Ali son of Shah Nawaz Chandio, PC Kandero son of Ghulam Muhammad Chandio, PC Ayaz Hussain son of Gul Hassan Kolachi and ASI Qurban Ali son of Moula Bux Baladi, therefore, they are convicted under section 265-H(ii) Cr.P.C for offence punishable under section 343, P.P.C. and sentenced to suffer R.I. for three years the accused persons are also convicted for committing offence punishable under section 220, P.P.C. and sentenced to suffer RI for 7 years. Both the sentences shall run concurrently. The accused are given benefit of section 382-B, Cr.P.C. The accused are present on bail. They are taken into custody and remanded to Central Prison Hyderabad through authorities of District Jail Dadu to serve out the sentence according to law. The copies of the Judgment be given to the accused free of costs.".

1. Brief facts of the prosecution case as per FIR are that on 14.01.2019, one Ghulam Shabbir son of Ghulam Sarwar by caste Lashari submitted an application under section 491, Cr.P.C. before the Court of Sessions Judge, Dadu against S.S.P Dadu, SHO Police Station Rajo Dero and others police officials with the allegations of wrongful detention/ arrest of detainee Asif Ali son of Muhammad Zaman Lashari. Due to such complaint Judicial Magistrate-I Dadu was appointed as raid commissioner, who has raided the Police Station Rajo Dero in presence of applicant Ghulam Shabbir where detainee Asif Ali was recovered from the room of Police Station Rajo Dero and was wrongfully detained maliciously in the exercise of the authority knowingly for more than three days and such statement of detainee Asif Ali was recorded, thereafter report was submitted by raid commissioner before Sessions Court Dadu and after hearing the parties the Sessions Judge, Dadu passed an order dated.15.01.2019 with the result complainant Asif Ali produced order No.608/2019 dated 15.01.2019 passed by Sessions Judge, Dadu and recorded his FIR at Police Station Rajo Dero alleging therein that he has been taken away by the police, his cousin Ghulam Shabir made an application before Sessions Judge Dadu regarding his wrongful confinement, the learned Judge conducted raid at Police Station Rajo Dero and released him from Police Station Rajo Dero in presence of his father and cousin Ghulam Shabbir, his statement was recorded by Judge wherein he stated that ASI Sajjad Ali Jamali, ASI Asif Ali Meerani, PC Adil, PC Kandero, PC Ayaz and ASI Qurban Ali Baladi had wrongfully confined him at Police Station Rajo Dero, hence the above FIR.

2. After usual investigation, the police submitted the final report before the concerned Judicial Magistrate, who took cognizance of the offence and thereafter the case was entrusted to the learned trial Court, where the charge against the accused was framed at Exh.02, who pleaded not guilty and claimed trial vide their pleas at Exs.3 to 8.

3. At trial, the prosecution to prove its case has examined following witnesses:

i. PW-1 Complainant Asif Ali examined at Ex.9, who produced certified copy of order dated.15.01.2019, his statement and FIR at Exs.9-A to 9-C.

ii. PW-2 Ghulam Shabir examined at Ex.10.

iii. Thereafter learned ADPP for the State vide statement at Ex.11, gave up PW Muhammad Zaman.

iv. PW-3 Zahid Ali Lashari examined at Ex.13, who produced copy of application under section 491, Cr.P.C, affidavit and report of raid commissioner, order dated.15.01.2019, report of SHO Police Station Rajo Dero dated 15.2.2019 at Exs.13-A to 13-E.

v. PW-4.Mr.Irfanullah Phull / raid commissioner examined at Ex.14, who produced entry No.8 of daily diary register of Police Station Rajo Dero, statement of detainee Asif Ali and PR bond obtained from detainee Asif Ali and letter No.540 dated.14.2.2019 at Exs.14-A to 14-D.

vi. PW-5 Sayed Gambal Shah at Ex.15, who produced memo of wardhat a Ex.15-A.

vii. PW-6 SHO Syed Tufail Shah at Ex.16.

It appears that all these witnesses have been cross-examined by the counsel for appellants.

1. Thereafter, learned DDPP closed prosecution side at Ex.17. Later on statement of accused was recorded under section 342, Cr.P.C at Exs.18 to 23, in which they denied the prosecution allegation and claimed their innocence. However, they did not examine themselves on oath nor led any evidence in their defence.

2. Learned counsel for the appellants contended that appellants are innocent and have falsely been implicated by the complainant due to personal grudge; that there are material contradictions and discrepancies in the evidence of prosecution witnesses; that the alleged detainee/ complainant Asif Ali and PW Gulam Shabir in their evidence before the court have not implicated the present appellants/accused; that the complainant Asif Ali in his evidence has stated that 8/9 police officials with muffled faces armed with official weapons entered in their house and took him and confined him at unknown police station; that the complainant/alleged detainee has not deposed against the present appellants regarding his arrest and wrongful confinement; that prosecution has miserably failed to prove its case beyond any reasonable doubt against appellants, therefore appellants may be acquitted by extending them benefit of doubt.

3. Conversely, learned D.P.G. for State has argued that the prosecution has proved its case against the appellants that they have illegally apprehended the complainant Asif Ali and wrongfully confined him at police station without any legal authority and acted to contrary to law; that the raid commissioner has conducted the raid at Police Station Rajo Dero on the application moved by cousin of complainant Ghulam Shabbir and found the alleged detainee Asif Ali at PS Rajo Dero and there is sufficient oral as well as documentary evidence connecting the appellants in commission of offence; that the prosecution has proved its case against appellants beyond any reasonable doubt therefore, prays for dismissal of captioned appeals.

4. I have heard the learned counsel for appellants, learned D.P.G for State and perused documents and evidence so brought on record.

5. After hearing the learned counsel for the parties, I have come to the conclusion that the prosecution has failed to prove its case against the appellants for the reasons that as per FIR. PW Ghulam Shabbir (cousin of complainant) moved an application before Sessions Judge, Dadu stating therein that his cousin Asif Ali has been illegally confined at Police Station Rajo Dero and the police officials are not allowing him to meet and see his said cousin. On such application, learned Sessions Judge appointed Civil Judge/Judicial Magistrate-I, Dadu as raid commissioner and directed him to conduct raid at Police Station Rajo Dero and recover the alleged detainee Asif Ali, if found in illegal confinement. Pursuant to such direction, the Raid Commissioner conducted raid at the said P.S. and found the alleged detainee Asif Ali while confined in a room of police station and submitted his report before Sessions Judge Dadu who after scrutinize the same disposed of the application with direction to Incharge of Police Station Rajo Dero to record the statement of detainee Asif Ali and then lodge FIR against the police officials who have misused their official powers and wrongfully confined said Asif Ali in their custody and maltreated him. However, it is noted that in his evidence recorded by the trial Court, complainant/ alleged detainee Asif Ali did not support the case of prosecution by stating that appellants, present before the trial Court, are not same. Though the complainant / alleged detainee has been declared hostile and consequently cross examined him by the ADPP appearing on behalf of the State, but his evidence has not been shaken as he categorically stated/ deposed that the accused / appellants were with muffled faces. Not only this, PW Ghulam Shabbir, who moved application before the Sessions Judge Dadu with regard to illegal confinement of detainee Asif Ali by the concerned police officials, while recording his evidence before the trial Court has also not supported the prosecution case by stating that the appellants present in Court (trial Court) are not same. This witness was also declared hostile by the ADPP. But in his cross examination to ADPP, this witnesses has also not been shaken as he reiterated that the appellants are not the guilty of the offence.

6. It appears from the record that whole prosecution story revolves around the evidence of complainant Asif Ali and PW Ghulam Shabbir, but as observed above, they have not supported the prosecution case and consequently declared as hostile.

7. It is also noted that in all, six police officials have been arraigned in this case, but surprisingly the SHO police station Rajo Dero has not been made accused. No explanation in this regard has been furnished. It is a matter of fact that an SHO is always responsible what has been or is being done within the premises of police station because the entire police station always remained under his control/administration and to my mind, if the prosecution has any case, the concerned SHO should be arraigned to give him exemplary punishment. It is further noted that 161, Cr.P.C statements of Ghulam Shabbir as well as that of Reader of the Sessions Court have also not been recorded. Merely saying that Asif Ali was confined in police room adjacent to police station does not ipso facto impose liability upon the appellants in view of the evidence of complainant/alleged detainee Asif Ali and PW Ghulam Shabbir wherein they have not supported the prosecution case at all.

8. I have perused the complaint made by PW GHulam Shabbir before the Sessions Judge, Dadu and found that the names of present appellants are not mentioned in it, but subsequently in FIR their names have been added. However, as observed above, the complainant Asif Ali and PW Ghulam Shabbir in their evidence before the trial Court have not supported the prosecution case. It is also pertinent to mention here that complainant Asif Ali, who is present in Court along with PW Ghulam Shabbir, once again reiterates their contention that present appellants are not the same who had illegally confined him at Police Station Rajo Dero.

2021 M L D 33

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput and Shamsuddin Abbasi, JJ

GHULAM MUHAMMAD---Appellant

Versus

PIYARO and 6 others---Respondents

Criminal Acquittal Appeal No. D-51 of 2013, decided on 11th March, 2020.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Contradictions in the statements of witnesses---Scope---Prosecution case was that the accused party committed murder of the son of complainant on the ground that he was karo with the daughter of the accused---Ocular account of the occurrence had been furnished by complainant, his son and grandson---Said witnesses had deposed in one voice that the alleged incident took place in the house of accused where they were sleeping as guests---In cross-examination, complainant had further stated that all the male guests were sleeping on the cots in a Chaper (Katcha Shed) built in front of the rooms in the house of accused while daughter-in-law of complainant was sleeping in one room of the house and it was dark night but electric bulbs were flashing---Son of complainant had deposed in cross-examination that they were sleeping in the Verandah of the house of accused---Said witness had further deposed that the house of accused had two rooms and one Verandah in front of those rooms and about 7/8 cots were lying in the Verandah of the house in a row while the women were sleeping in a room---Grandson of complainant/witness had also deposed in cross examination that they were sleeping in the Verandah of the house of accused---Said witness, however, showed his inability to identify the room in which daughter-in-law of complainant went to sleep along with females of the house of accused---Evidence of the said witnesses more or less was built up on the point that they were sleeping in the Verandah of the house of accused where the alleged incident took place---Tapedar, who prepared the sketch plan, had deposed that the house of accused was facing towards northern side, the place where the dead bodies were lying was open place which was surrounded by wall wherein no 'Chaper' was built and no electricity was installed---Memo of site inspection was produced by a witness, which reflected that the place of incident was vacant plot adjacent to the house of accused where they had seen enough blood on ground which was said to be of deceased and at the distance of about three paces there was also lying enough blood which was said to be of daughter of the accused---Investigating Officer had also deposed in cross-examination that the place of incident was situated on eastern side of the house of accused which was an open plot---Record transpired that the place of incident was not the Verandah of/in the house of accused but an open plot in front of his house---Version of the complainant and the two eye-witnesses proved to be incorrect leading to inference that neither the complainant nor any of the eye-witnesses was present at the crime scene---Prosecution had failed to bring home guilt of the accused beyond reasonable doubt---Appeal against acquittal was dismissed, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Principle---Conviction of the accused should be made on strong evidence---If the doubt, even slightest, arisen in a prudent mind as to the guilt of the accused, its benefit had to be extended in favour of the accused.

(c) Appeal against acquittal---

----Interference---Scope---To reverse an order of acquittal, it must be shown that the acquittal order was unreasonable, perverse and manifestly wrong---Order of acquittal which was based on correct appreciation of evidence would not warrant interference in appeal.

Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329 rel.

Ghayoor Abbas Shahani for Appellant.

Nisar Ahmed G. Abro for Respondents Nos. 1 - 6.

Ali Anwar Kandhro, Addl. P.G. for the State.

2021 M L D 49

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

ALLAH BUX KHAN UNAR and others---Petitioners

Versus

SOHAIL ANWAR SIYAL and others---Respondents

Constitutional Petitions Nos. D-4140, D-4223, D-4226, D-4229 and D-4284 of 2018, decided on 16th March, 2020.

Constitution of Pakistan---

----Arts. 62(1)(f) & 199---Constitutional petition---Quo Warranto, writ of---Declaration of assets---Commission of crime---Holding of IQAMA, non-disclosure of Petitioners assailed elections of respondents as Members of Provincial Assembly on the ground that they did not declare holding of IQAMA by them in the declaration Form---Validity---Culpable act or omission of a person undertaken prior to holding public office, could conceivably led to his disqualification from holding a public office subsequently acquired---Petitioners failed to demonstrate to High Court that IQAMA was an asset---No requirement for disclosure of holding an IQAMA in nomination Form or statement of assets accompanying the same was placed before High Court---No admission existed or irrefutable direct evidence was placed on file to demonstrate the existence of any undisclosed assets, crystallized or receivable, non-disclosure whereof would render a member unqualified to hold public office, per Art. 62(1)(f) of the Constitution---Constitutional petition was dismissed, in circumstances.

Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lah. 343; Lt.-Col. Farzand Ali and others v. Province of West Pakistan PLD 1970 SC 98; Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif PLD 2017 SC 265; Sher Alam Khan v. Abdul Munim and others PLD 2018 SC 449; PLD 2018 SC 114; PLD 2018 SC 189; PLD 2017 SC 265 and PLD 2010 SC 817; Malik Shakeel Awan v. Sheikh Rasheed Ahmed and others PLD 2018 SC 643; Muhammad Hanif Abbasi v. Jahangir Khan Tareen PLD 2018 SC 114; Masudul Hasan v. Khadim Hussain and another PLD 1963 SC 203; Khuda Baksh v. Mir Zafarullah Khan Jamali 1995 CLC 1860; Malik Nawab Sher v. Chaudhry Munir Ahmed and others 2013 SCMR 1035; Pakistn Olympic Association and others v. Nadeem Aftab Sindhu and others 2019 SCMR 221; Imran Ahmed Khan v. Muhammad Nawaz Sharif PLD 2017 SC 692; Khawaja Muhammad Asif v. Muhammad Usman Dar PLD 2018 SC 2128; Muhammad Siddiq Baloch v. Jahangir Khan Tareen and others PLD 2016 SC 97; 2015 PLC 45; 2015 CLD 257; PLD 2011 SC 44; PLD 2007 SC 642; Mehmood Akhtar Naqvi v. Federation of Pakistan and others PLD 2012 SC 1089 and Nida Khuhro v. Moazzam Ali Abbasi 2019 SCMR 1684 ref.

Khawaja Shamsul Islam for Petitioners (in C.P. D-4140 and 4284 of 2018).

Haq Nawaz Talpur for Petitioners (in C.P. No.4226 of 2018).

Syed Mureed Ali Shah for Petitioners (in C.P. No.4229 of 2018).

Basil Nabi Malik for Petitioners (in C.P. No.4223 of 2018).

Ishrat Zahid Alavi, Assistant Attorney General for Respondents.

Barrister Jawad Dero, Additional Advocate General Sindh for Respondents.

Barrister Makhdoom Ali Khan for Respondents (in C. P. No.D-4229 of 2018)

Barrister Farooq H. Naek for Respondents (in C.Ps. Nos. 4226 abd 4140 of 2018).

Barrister Khalid Javed Khan for Respondents (in C.Ps. Nos. 4226 and 4140 of 2018.

Barrister Zameer A. Ghumro for Respondents (in C.P. No.4223 of 2018).

2021 M L D 64

[Sindh (Hyderabad Bench)]

Before Mahmood A. Khan, J

AUGUSTINE ERIC WILSON and another---Applicants

Versus

Mrs. DAISY through Legal Representatives and others---Respondents

R.A. No.193 of 2009, decided on 29th August, 2019.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration and possession---Limitation---Contention of plaintiff was that she was owner of suit property and sale agreement in favour of defendant was forged and fabricated---Suit was decreed concurrently holding that documents relied upon by the defendant were forged and fabricated---Validity---No specific issue with regard to limitation had been framed---Matter of limitation was mixed question of law and fact---No bar of limitation had been found in the case---Contentions of defendant were not supported by record---Plaintiff was an earlier valid title holder of suit property---No further right was available to be given as claimed by the defendant---Alleged sale agreement had not been proved on behalf of defendant---Revision was dismissed, in circumstances.

1998 SCMR 1067; 2012 MLD 39; 2012 MLD 50; PLD 1979 SC 821; PLD 1985 SC 405; 1990 SCMR 1699; 2010 SCMR 1630; 2005 CLC 285; 2017 MLD 1105; 2009 MLD 1314; 2009 SCMR 623; PLD 2001 Kar. 403; 2002 SCMR 798; 2001 SCMR 431; 2001 CLC 660; 1999 CLC 395; 1997 SCMR 1139; 2004 SCMR 877; 2007 SCMR 996; PLD 2002 SC 677; 1991 CLC 1801 and PLD 1984 Quetta 92 ref.

Parkash Kumar for Applicants.

Naimatullah Soomro for Respondent No.1.

Wali Muhammad Jamari, A.A.G. for the State.

2021 M L D 83

[Sindh]

Before Arshad Hussain Khan, J

MUHAMMAD KASHIF---Plaintiff

Versus

FURQAN KARIM and 2 others---Defendants

Suit No. 644 of 2005, decided on 30th April, 2020.

(a) Malicious prosecution---

----Suit for damages---General and special damages--- Onus to prove---Assessment of damages---Principles---Plaintiff sought recovery of damages on the plea that he was falsely involved in a criminal case which caused loss to his business as well to his reputation---Validity---Nature of damages claimed by plaintiff fell within the ambit of general damages and special damages and the same required to be established through cogent and reliable evidence---Mere feeling of resentment in one's own mind was not sufficient to establish general and special damages---To claim mental torture/agony or damage/injury, initial burden was upon plaintiff to lead evidence on such point---Determining general damages for mental torture, agony, defamation and financial losses, those were to be assessed following the 'rule of thumb'---Such exercise was within the discretionary jurisdiction of Court which had to decide in facts and circumstances of each case---High Court in exercise of powers to grant general damages under the rule of thumb, plaintiff was found entitled to grant of partial damages---Suit was decreed accordingly.

Rana Shaukat Ali Khan and 2 others v. Fayyaz Ahmad and 3 others 2017 MLD 120; Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478; Naber Shaha v. Shamsuddin and others PLD 1964 Dacca 111; Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; Muhammad Noor Alam v. Zair Hussain and 3 others 1988 MLD 1122; Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 623; Mubashir Ahmad v. Syed Muhammad Shah through Legal Heirs 2011 SCMR 1009; Dr. M. Raza Zaidi v. Glaxo Wellcome Pakistan Limited, Karachi 2018 MLD 1268 and Mrs. Rehana Jadoon v. Arbab Khan 2019 MLD 337 ref.

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

----Arts. 117 & 120---Onus to prove---Party approaching Court for seeking relief has to stand on his own legs for that purpose no benefit of any weakness in the case of opposite party can be extended to him.

M.D. Anwarullah Mazumdar v. Tamina Bibi and others 1971 SCMR 94; Haji Muhammad Sarwar Khan v. Hussain Nawab 1992 CLC 1915; Mst. Zainab and another v. Majeed Ali and another 1993 SCMR 356 and Niaz and others v. Abdul Sattar and others PLD 2006 SC 432 rel.

Waqar Ahmed Shaikh for Plaintiff.

Ahmed Pirzada, Addl. A.G. for Defendants.

2021 M L D 100

[Sindh]

Before Mrs. Rashida Asad, J

AYESHA S. SHEIKH---Applicant

Versus

VIII-ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI (SOUTH)

and another---Respondents

Criminal Miscellaneous Application No. 516 of 2019, decided on 2nd April, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 265-K & 561-A---Penal Code (XLV of 1860), Ss.420, 468, 471, 472, 473, 474, 477-A, 109 & 34---Cheating, forgery, using forged documents, counterfeit seals, falsification of accounts, abetment and common intention---Inherent jurisdiction of High Court---Scope---Accused sought her acquittal under S.265-K, Cr.P.C. which application was dismissed by Trial Court---Order of Trial Court was assailed by invoking inherent jurisdiction of High Court (S.561-A, Cr.P.C.) to seek her acquittal---Validity---Purpose of adding provision of S.561-A to Penal Code, 1860, was to recognize and reiterate inherent powers possessed by High Court to pass such orders as would enable it to do justice to all concerned---Object was to meet lacunae existing in Criminal Procedure Code, 1898, and to cater for situations which could not be foreseen by Legislature and for which no specific provision or remedy had been provided---Provision of S.561-A, Cr.P.C. was never meant or intended to offer an additional or alternate remedy---High Court declined to interfere in the order passed by Trial Court---Application was dismissed in circumstances.

2014 SCMR 1376; 2010 SCMR 861; 2018 MLD 2089; 2000 SCMR 122; PLD 2008 Kar. 310; PLD 2017 SC (AJ&K) 11; 2011 SCMR 863; 1972 SCMR 194; 1993 PCr.LJ 125; 1993 PCr.LJ 215; PLD 1963 SC 237 and PLD 2004 SC 298 ref.

Aamir Mansoob Qureshi for Applicant.

Ch. Waseem Akhtar, Assistant Attorney General for Pakistan along with I.O. Saeed Ahmed Memon, acting Deputy Director FIA for Respondents.

2021 M L D 119

[Sindh]

Before Abdul Maalik Gaddi and Mrs. Rashida Asad, JJ

Messrs G.F.S. (GLOBAL FINANCIAL SOLUTION) BUILDER AND DEVELOPER through Partner and another---Petitioners

Versus

PROVINCE OF SINDH and 11 others---Respondents

Constitutional Petition No. D-2166 of 2020, decided on 8th May, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Locus standi---Aggrieved person---Legal right---Connotation---Petitioners assailed letter issued by investigating agency to revenue authorities for inquiring status of government land in question---Validity---Concerned department could make inquiries in order to ascertain actual position with regard to land, which was within their domain in accordance with law---Petitioners were not owners of land in question, therefore, they were neither aggrieved nor had any legal right or locus standi to file petition---Legal right was one which was recognized and protected by laws of state and enforceable before Court of law which was lacking---No action was proposed or initiated against petitioners by authorities, therefore, Constitutional petition was premature, as no cause of action had accrued to petitioners---Petition was dismissed, in circumstances.

Muhammad Moosa v. The State 2005 CLC 487; National Steel Rolling Mills and others v. Province of West Pakistan 1968 SCMR 317 and Hundal Dass v. District Nazim and others 2004 YLR 2031 ref.

Malik Altaf Javed for Petitioners.

Jan Muhammad Khuhro, Assistant Advocate General, Sindh along with Aijaz Ali Qaimkhani, Assistant Director, Anti-Corruption Establishment East Zone, Karachi.

2021 M L D 133

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MURSHID---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 61 of 2018 and Confirmation Case No.01 of 2018, decided on 9th December, 2019.

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

----Ss. 302(b), 324 & 337-F(i)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah, damiyah---Appreciation of evidence---Sentence, reduction in---Delayed FIR---Natural witnesses---Motive not alleged---Scope---Prosecution case was that the accused caused churri blows to the deceased in the house of complainant where his wife and daughter were having breakfast; injured the wife of complainant and hid himself in the cupboard---First Information Report was lodged after a delay of 26 hours but based on the facts of the case such delay was not fatal because it was explained in the evidence by the need of the complainant to take his injured wife to the hospital, attend the funeral of the deceased, who was his sister and his overall shock after the incident---Accused was arrested on the spot by the police, therefore, no question of any false case being cooked up by the police in collusion with the complainant arose---Injured eye-witness and her daughter were natural witnesses as opposed to chance witnesses as the incident had taken place in their house---Neither of them had any enmity or ill-will towards the accused---High Court reduced the sentence of death to life imprisonment for the reason that the crime lacked the essential brutality to justify the death sentence and the prosecution had failed to allege and prove the motive---Appeal was disposed of accordingly.

Saeed Ahmed v. The State 2015 SCMR 710; Amin Ali and another v. The State 2011 SCMR 323; Muhammad Ehsan v. The State 2006 SCMR 1857 and Zakir Khan v. State 1995 SCMR 1793 ref.

Amjad Shah v. State PLD 2017 SC 152 rel.

(b) Criminal trial---

----Witness---Police witness---Related witness---Scope---Police witness or related witness is as good as any other witness provided that no ill will, enmity, mala fide or personal interest is proven against him.

Riaz Ahmad v. State 2004 SCMR 988; Zafar v. State 2008 SCMR 1254 and Abbas v. State 2008 SCMR 108 ref.

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

----S. 302---Qatl-i-amd---Motive not alleged---Effect---Scope---Where the prosecution does not allege any motive against the accused nor does it prove any motive against the accused for his murdering the deceased then the court while exercising its sentencing discretion can impose the alternate sentence of life imprisonment as opposed to the death sentence.

Amjad Shah v. State PLD 2017 SC 152 rel.

Irshad Ahmed Jatoi for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

2021 M L D 149

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD NAEEM---Appellant

Versus

MUHAMMAD ISHAQ KHAN and 2 others---Respondents

Criminal Acquittal Appeal No. 46 of 2018, decided on 27th February, 2020.

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

----S. 320---Qatl-i-khata by rash or negligent driving---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Scope---Complainant and his witnesses had nowhere deposed that due to rash and negligent driving on the part of accused the accident had taken place---No authentic oral as well as documentary evidence was produced by the prosecution to connect the accused with the commission of offence---Evidence brought on record suffered from material deficiencies, procedural lapses and lack of corroboration amongst the prosecution witnesses lacking connection to prove actus reus and mens rea---Appeal against acquittal was dismissed, in circumstances.

Muhammad Fazil v. Bashir Ahmed and another 2009 SCMR 1382 and Mst. Anwar Begum v. Akhtar Hussain "Kaka" and 2 others 2017 SCMR 1710 distinguished.

Zulfiqar Ali v. Imtiaz and others 2019 SCMR 1315 rel.

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

----S. 417---Appeal against acquittal---Scope---Appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from the appeal against the acquittal because double presumption of 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 mis-reading, 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---Order/judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order---While examining the facts in the order of acquittal, substantial weight should be given to the findings of the lower courts, whereby accused was exonerated from commission of crime.

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

(c) Criminal trial---

----Benefit of doubt---Scope---Whenever there is doubt about guilt of accused, its benefit must got to him and Court would never come to the rescue of prosecution to fill-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Saeed v. The State 2008 PCr.LJ 1752 and Ghulam Murtaza v. The State 2010 PCr.LJ 461 ref.

Muhammad Hanif Qureshi, Saathi M. Ishaq, Sarwat Israr and Sanaur Rehman for Appellant.

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

2021 M L D 169

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

GULZAR SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 459 of 2018 and Confirmation Case No. 7 of 2018, decided on 21st October, 2019.

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

----S. 376---Rape---Appreciation of evidence---First Information Report was registered two days after the crime---Delay immaterial---Accused was charged for committing rape with minor daughter of the complainant---Record showed that victim had to be taken to the hospital immediately but she was returned home and then taken back the next day due to legal complications which the mother/complainant was unaware of---High Court observed that in such type of cases, it was not unusual for a mother to give priority to the well being of her daughter over lodging FIR especially as the mother was sick with worry about what had happened to her child and very often was not immediately aware of the legal course to be adopted---Delay in lodging the FIR was not fatal to the prosecution case, in circumstances.

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

----S. 376---Rape---Appreciation of evidence---Contradictions in the evidence of witnesses---Scope---Accused was charged for committing rape with the minor daughter of the complainant---Ocular account of the incident had been furnished by victim and complainant---Record showed that in cross-examination, the victim had stated that she did not see the person who put her hand over her mouth and raped her, which contradicted her statement under S. 164, Cr.P.C. given after an explained delay of eight days of the incident---Victim specifically named the accused as closing her mouth and taking her inside the shop where after he committed certain acts against her---Other evidence that the accused raped the victim was hearsay evidence, which was inadmissible---Complainant had stated that she found her daughter bleeding outside the accused's shop and she lodged the FIR on the basis that her daughter was found outside the appellant's shop---Such was hearsay evidence when the mother stated in her evidence that she asked her daughter who had done that to her, she told her mother that she had not seen the accused as someone came from behind---First Information Report lodged two days after the incident mentioned the accused raped her daughter, which was in complete conflict with her evidence---Complainant also stated that no one in the mohalla had seen the accused committing the offence---Circumstances established that the prosecution had not been able to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Muhammad Aslam v. The State 2019 MLD 973; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Nawaz and another v. The State and others PLD 2005 SC 40; Hashim Qasim and another v. The State 2017 SCMR 986 and The State and others v. Abdul Khaliq and others PLD 2011 SC 554 ref.

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

----S. 376---Rape---Appreciation of evidence---Non-recovery of incriminating evidence---Scope---Accused was charged for committing rape with the minor daughter of the complainant---Record showed that nothing was recovered from the place of incident---No blood was recovered from inside the shop which ought to have been present if the victim was raped in the shop---Memo of inspection of scene of the offence showed that the offence was committed beside the wall of a Pan shop situated beside accused's shop and in front of a rice gowdown but nothing was recovered from there---No evidence of blood stains were seen on the pavement---Evidence on record was that the victim was heavily bleeding and it was not raining and as such any blood would not have been washed away---Memo of inspection of scene of the offence showed that it was a crowded area at 7.30 to 8.30 p.m. at night yet no one heard or had seen anything---Appeal against conviction was allowed, in circumstances.

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

----S. 376---Rape---Appreciation of evidence---DNA sample did not match---Effect---Accused was charged for committing rape with the minor daughter of the complainant---Record showed that the DNA sample did not match and the victim's blood was not found on the accused or his clothes which would have been expected if he had raped her and she was heavily bleeding as accused was immediately taken into custody before the FIR was lodged---Said fact raised doubt that the accused was the rapist---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

(e) Criminal trial---

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

Muhammed Shah v. State 2010 SCMR 1009; Tariq Pervez v. The State 1995 SCMR 1345 and Abdul Jabbar v. State 2019 SCMR 129 rel.

Salahuddin Khan Gandapur for Appellant.

Mohammad Iqbal Awan, Deputy Prosecutor General for the State.

2021 M L D 200

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

MUHAMMAD USMAN MEMON---Petitioner

Versus

D.C.O., HYDERABAD and others---Respondents

Admn. Application No. S-10 of 2013, decided on 8th November, 2019.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Conversion of proceedings---Matter of public importance---Scope---High Court took cognizance of the matter regarding dumping of chemical material in a shop on a formal complaint sent to the High Court against the owner of business---High Court observed that no fetters or bar could be placed on the powers of the High Court to convert one kind of proceedings into another and to decide the matter either itself in exercise of its jurisdiction or to order its transfer to another Court having jurisdiction or remit it to Court/forum/authority having jurisdiction on merits---Prima facie the issues involved in the proceedings were of public importance---Office (High Court) was directed to place the case before a Division Bench of High Court for decision in its constitutional jurisdiction.

Jane Margret William v. Abdul Hamid Mian 1994 SCMR 1555; Capital Development Authority v. Khuda Baksh and 5 others 1994 SCMR 771; Shams-ul-Haq and others v. Mst. Ghoti and 8 others 1991 SCMR 1135; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Province of Sindh and another v. Muhammad Ilyas and others 2016 SCMR 189; Engineer Musharraf Shah v. Government of Khyber Pakhtunkhwa through Chief Secretary and 2 others 2015 PLC (C.S) 215; The Thal Engineering Industries. Ltd. v. The Bank of Bahawalpur Ltd. and another 1979 SCMR 32; Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139 and Mian Asghar Ali v. Government of Punjab and others 2017 SCMR 118 ref.

Nemo for Petitioner.

Farhad Ali Abro for Respondents.

Wali Muhammad Jamari, Asstt: A.G. for Respondents.

2021 M L D 207

[Sindh]

Before Zulfiqar Ahmad Khan, J

ASIM JOFA---Plaintiff

Versus

KARACHI METROPOLITAN CORPORATION through Administrator, Karachi and 3 others---Defendants

Suit No. 977 of 2014, decided on 1st June, 2020.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 151---Suit for declaration and injunction---Restoration of possession---Dispute between parties was with regard to utilization of space of roundabout in question---Plaintiff sought restoration of possession of two roundabouts---Validity---Area was owned by Metropolitan Corporation and removal of signboards, hoardings and concrete structure was performed in compliance of the orders of Supreme Court as well as on the ground that such placement of signboards and concrete structure was in utter violation of the agreement---Plaintiff had transgressed his rights and rather than beautifying the roundabouts, had spoiled the architectural icons to the loss of public at large---High Court directed Metropolitan Corporation to ensure upkeep of greenery of roundabouts and bring them back to their original glory on its own---High Court further directed the Corporation that it could also seek assistance for preservation and beatification of the city icons with the help of advice from Floral Art Society as well as Horticultural Society of Pakistan---Application was dismissed, in circumstances.

Asim Iqbal for Plaintiff along with Farmanullah, Mirza Saleem Akhtar Baig for DMC (South) along with Malik Fayaz, Chairman DMC (South).

Kelash Waswani, A.A.G. for Defendants.

Irshad Sodhar, DC (South), Rana M. Umer, AC Civil Lines, Imtiaz Mangi, AC (Rev), Ahmer Shafiq, Deputy Director, Parks and PI Asadullah.

2021 M L D 218

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqui, JJ

ADNAN alias ADU through Senior Superintendent, Central Prison, Hyderabad---Petitioner

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-94 of 2018, decided on 18th December, 2018.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictory evidence---Non-production of sample-bearer---Scope---Accused was apprehended with 2120 grams of opium---Complainant had not associated any private person to witness the recovery proceedings, despite availability---Roznamcha entry and report of Chemical Examiner indicated different names of sample-bearers---None of the alleged sample-bearers was examined by the prosecution to establish safe transmission---Prosecution case was doubtful and its benefit went to the accused, not as a concession but as a matter of right---Prosecution could not prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 25---Criminal Procedure Code (V of 1898), S. 103---Mode of search and arrest---Search to be made in presence of witnesses---Object---Where recovery was made after prior information and that too in presence of private person, then, failure to secure independent mashirs cannot be brushed aside lightly by the Court---Main object of S.103, Cr.P.C. is to ensure transparency and fairness on the part of police during the course of recovery, prevent false implication and diminish the scope of foisting fake recoveries upon the accused.

Nazir Ahmed v. The State PLD 2009 Kar. 191 and Muhammad Khalid v. The State 1998 PCr.LJ 808 ref.

(c) Criminal trial---

----Benefit of doubt---Scope---Several circumstances creating doubt about the guilt of accused are not necessary---Single circumstance creating doubt in a prudent mind about the guilt of accused will entitle him to the benefit not as a matter of grace and confession but as a matter of right and the same is sufficient to warrant the acquittal of accused.

Tariq Pervaiz v. The State 1995 SCMR 1345 ref.

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

----S. 9---Possession of narcotics---Policy of sentence---Scope---Departure from sentencing policy is allowed but reasons for same must be given in the judgment.

Murtaza and another v. The State PLD 2009 Lah. 362; Amer Zaib v. The State PLD 2012 SC 380 and State v. Mujahid Naseem Lodhi PLD 2017 SC 671 ref.

Muhammad Jameel Ahmed for Appellant.

Shawak Rathore, Deputy Prosecutor General Sindh for the State.

2021 M L D 241

[Sindh]

Before Agha Faisal, J

ZEESHAN PARVEZ---Plaintiff

Versus

MUHAMMAD NASIR---Defendant

Suits Nos. 1114 and 1214 of 2013, decided on 31st August, 2020.

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

----Ss.12, 22 & 39---Contract Act (IX of 1872), S.55---Agreement to sell immoveable property---Specific performance of contract---Scope---Contradictory stances taken by the vendor---Effect---Vendee instituted suit for specific performance of the agreement while vendor filed suit for cancellation of said agreement (both suits were consolidated)---Plea of the vendor was that the agreement was cancelled, as the vendee had not performed his contractual obligation, hence the question of its specific performance did not arise---Validity---Record showed that vendor, precisely two days prior to the institution of his suit, had addressed a legal notice to the vendee stipulating that since vendee had neither paid partial payment prior to an initial date nor balance sale consideration by the last date as per requirement of the agreement, therefore, the said agreement was rescinded; whereas in the plaint filed by the vendor, he prayed inter alia for rescission and cancellation of agreement---In complete departure from his pleadings, the vendor deposed in his evidence that the agreement had already been cancelled, which plea remained a bare assertion devoid of any corroboration from the record---On the very date of institution of suit for specific performance of the agreement, the vendee was granted interim relief, restraining the vendor from creating any third party interest in the suit property and from parting with possession thereof, which interim orders continued throughout the tenure of the suit---Vendee, in said context, had denied of any mutually agreed cancellation---Evidence showed that vendor accepted two payments from the vendee post execution of the agreement---Bank-statement also found mentioned that, for the purpose of redemption of the suit-property, vendee had deposited amount in the account of Bank with whom the suit-property was mortgaged---Admittedly, the initial date was inadvertently misprinted in the agreement deed and pleadings, evidence and conduct of the parties corroborated the date asserted by the vendee was required to be the date for the part payment---High Court observed that vendee had made out a case for grant of specific performance of the agreement, whereas, the vendor had been unable to prove any grounds to merit cancellation of the agreement---High Court directed defendant/vendor to forthwith execute a conveyance deed in favour of the plaintiff/vendee in respect of the suit property and deliver a peaceful vacant possession thereof, and balance sale consideration, which vendee had already deposited with the Court, be paid to the vendor---Suit of vendor was dismissed with costs---Suit of the plaintiff/vendee was decreed accordingly.

Muhammad Umar Gull v. Nasir Javed 2016 YLR 1350; Bank Al Falah Limited v. Mrs. Shahzadi Zarfashan Sohail 2016 YLR 2528 and Maj. (R) Muhammad Iqbal Hussain v. Col. (R) Sadiq Hussain Sheikh and another 2017 YLR 2105 distinguished.

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

----S.55---Specific Relief Act (I of 1877), Ss.12 & 39---Agreement to sell immoveable property---Time the essence of the contract---In contract related to immoveable property the time mentioned therein could not be construed as the absolute essence thereof and due consideration had to be given to the appurtenant, context and conduct---Evidence, in the present case, showed that the specified dates were not the essence of the agreement as the initial date, for part payment, admittedly was inadvertently misprinted in the agreement-deed whereas the last date, for final/outstanding payment, was demonstrably contingent upon the discharge of the vendor's obligation to cause the mortgaged suit-property redeemed as per relevant clause of the agreement.

2020 YLR 607 and PLD 2017 Sindh 88 ref.

Sajid Latif for Plaintiff (in Suit No.1114 of 2013).

Mohamed Vawda for Plaintiff (in Suit No.1214 of 2013).

Mohamed Vawda for Defendant (in Suit No.1114 of 2013).

Sajid Latif for Defendant (in Suit No.1214 of 2013).

2021 M L D 267

[Sindh]

Before Abdul Mobeen Lakho, J

ABDULLAH and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.272 of 2020, decided on 13th March, 2020.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)---Possession of narcotics---Bail, refusal of---Positive report of Forensic Laboratory---Scope---Accused persons were alleged to have been found in possession of one kilograms of Methamphetamine Ice Crystal each---No enmity, ill-will or grudge was alleged against the prosecution witnesses, on the contrary, sufficient material was brought by the prosecution on the record including report of Chemical Examiner which showed that the samples were sent to the Forensic Laboratory on the very next day and the report was in positive, which was enough to dismiss the bail application---Petition for grant of bail was dismissed, in circumstances.

The State v. Javed Khan 2010 SCMR 1989; Ayaz Pathan v. State 2013 YLR 2560 and Mst. Rafaqat Bibi v. State 2011 MLD 1070 rel.

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

----S.497---Bail---Tentative assessment---Scope---Court, while deciding the bail application, has to tentatively assess the material available on record and deeper appreciation of evidence is not required.

(c) Criminal trial---

----Witness---Police witnesses---Scope---Police officials are as good witnesses as any other person.

Saqib Ali Awan for Applicants.

Ms. Abida Parveen Channar, Special Prosecutor, ANF for the State.

2021 M L D 284

[Sindh (Larkana Bench)]

Before Muhammad Faisal Kamal Alam, J

MUHAMMAD BUX CHANDIO---Applicant

Versus

ZULFIQAR ALI and 6 others---Respondents

Criminal Revision Application No.S-73 of 2018, decided on 24th June, 2019.

Illegal Dispossession Act (XI of 2005)---

----Ss.3 & 5---Prevention of illegal possession of property---Investigation and procedure---Scope---Applicant challenged the order passed by trial court whereby his complaint was dismissed with the observation that dispute between the parties was of civil nature---Contention of respondents was that the subject property was handed over to them in lieu of a compromise agreement in a murder case---Validity---Order passed by trial court was based on the reports of Assistant Commissioner and SHO (Station House Officer)---Report of SHO was based on another criminal case but record of the case was never produced---Report of Assistant Commissioner transpired that subject property was recorded in the name of the person regarding whom the applicant claimed to be his predecessor and that the name of respondents was not mentioned in the original record---No compromise agreement was produced by the respondents---Contention of respondents supported the case of applicant that the subject property belonged to him and his family members---High Court observed that Trial Court should have deeply appreciated the facts to ascertain the truth rather than passing the order only on the reports, particularly, that of SHO, which was merely a statement without any supporting document---Order passed by Trial Court was set aside and the case was remanded to the Trial Court for decision afresh.

Shaikh Muhammad Naseem v. Mst. Farida Gul 2016 SCMR 1931 and Noor-ul-Huda v. Abdul Raoof and others (Criminal Revision Application No. 12 of 2017) rel.

Zahid Hussain Chandio for Applicant.

Muhammad Afzal Jagirani for Respondents Nos.1 to 4.

Muhammad Noonari, D.P.G. for the State.

2021 M L D 292

[Sindh]

Before Salahuddin Panhwar and Zulfiqar Ali Sangi, JJ

SHERAZ---Applicant

Versus

The STATE---Respondent

Criminal Bail Applications Nos.D-197 and D-1006 of 2020, decided on 4th May, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 353 & 34---Qatl-i-amad, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty and common intention---Bail, grant of---Existence of reasonable grounds---Source of identification---Further inquiry---Scope---Accused along with others was alleged to have fired at the police party and killed one of the constables---Accused was nominated in the FIR but the source of identity was not pointed out by the complainant which (source) was relevant when the accused was not previously known to him---Merely mentioning the name of any person in the FIR without any substance was not sufficient to satisfy providing clause, used in Cl. (i) of S.497, Cr.P.C., i.e. "if there appears reasonable grounds for believing that he has been guilty of any offence punishable with death or…"---Role assigned against all the accused persons, nominated or not named in the FIR was of general nature, therefore, prosecution was justified in seeking benefit against one out of all merely for the reason of his being made in the FIR---Crime weapon was not recovered from the accused; even otherwise mere recovery of weapon alone could not justify the lust of phrase 'existence of reasonable grounds' because legal status thereof was nothing more than of 'corroborative one', which alone could not hold a conviction---Other accused persons had also been granted bail in the same FIR although both of them were not nominated in the FIR yet the role assigned against them was one and the same without any distinction---Petition for grant of bail was allowed, in circumstances.

Nadeem Burney v. The State 1999 MLD 1259; Fazil Khaliq alias Hafiz v. The State through Advocate-General, N.W.F.P. Peshawar and another 1996 SCMR 364 and Muhammad Shakeel v. The State and others PLD 2014 SC 458 ref.

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

----S.497---Bail---"Rule of consistency"---Scope---Where the case of accused, seeking bail, is on same footing as that of co-accused, admitted to bail, then mentioning of name, without disclosure of source, would not be sufficient to take the case of such accused away from pale of rule of consistency.

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

----S.497---Bail---Principle---Scope---Liberty of a person is a precious right that has been guaranteed in the Constitution hence in cases, where there is slight tilt towards grant of bail the same needs to be preferred over letting one to confine in jail for an indefinite period in the name of trial when conclusion thereof can competently impose due punishment for such released person.

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

----S.497---Bail---Tentative assessment---Scope---Deeper appreciation of evidence is not permissible at bail stage and the same is to be decided tentatively on the material available on record.

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

----S.497---Bail---Involvement in other criminal cases---Scope---Mere involvement in criminal cases cannot be treated as a ground to withhold the concession of bail.

Moundar and others v. The State PLD 1990 SC 934 and Muhammad Rafique v. The State 1997 SCMR 412 ref.

Lal Hussain Shah for Applicant.

Abrar Hussain Khichi, DPG for the State.

2021 M L D 304

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar and Adnan-ul-Karim Memon, JJ

QAMAR ZAMAN---Petitioner

Versus

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

Constitution Petition No.D-2385 of 2019, decided on 16th October, 2019.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Disputed questions of fact---Scope---Petitioner sought implementation of notification issued by Government whereby it had imposed complete ban on cultivation of Government land in the desert area for a period of 90 days---Validity---Several disputed questions of facts were involved in the petition and civil suit in the court of law was the only remedy to go through the relevant record and evidences of the parties---Dispute as agitated by the petitioner could not be resolved in constitutional jurisdiction as High Court had limited jurisdiction in like matters to dilate upon---No right of petitioner was established on record---Petitioner was at liberty to avail the remedies available to him under the law---Constitutional petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Discretionary jurisdiction---Scope---No absolute bar exists to the maintainability of constitutional petition where there are disputed questions of facts, at the same time, discretion lies with the High Court.

Bheemchand Kolhi for Petitioner.

2021 M L D 388

[Sindh]

Before Abdul Maalik Gaddi, J

JAVED QURESHI---Appellant/accused

Versus

The STATE---Respondent

Criminal Appeal No.107 of 2019, decided on 19th November, 2019.

Penal Code (XLV of 1860)---

----Ss.302 & 34---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd and common intention---Compounding of offence---Scope---Prosecution case was that the accused wrongfully detained and beaten him at police station, who expired at said police station in custody---Accused along with father, mother, widow and three minor legal heirs of deceased filed joint applications for grant of permission to enter into compromise---Applications were sent to the Trial Court for verification of legal heirs and genuineness of compromise---Trial Court reported that reports were called from SHO and NADRA and a notice was also published in the newspaper but no other person claiming to be legal heir of deceased came in picture and nobody objected to the compromise---Applications filed by parties under Ss.345(2) and 345(6), Cr.P.C., were allowed, as such, the appeal was disposed of in view of the compromise arrived at between the parties---Conviction and sentence awarded to the accused for murder was set aside.

Muhammad Daud Narejo for Appellant.

Abdullah Rajput, Deputy Prosecutor General, Sindh for Respondent.

Complainant present in person.

2021 M L D 395

[Sindh]

Before Abdul Maalik Gaddi, J

Syed ABDUL WAHAB---Appellant

Versus

VIIIth ADDITIONAL DISTRICT AND SESSION JUDGE, KARACHI and 6 others---Respondents

Criminal Appeal No.494 of 2019, decided on 24th October, 2019.

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

----S.3---Prevention of illegal dispossession of property---Appreciation of evidence---Failure of complainant to prove his possession---Scope---Appellant assailed the dismissal of his complaint under Illegal Dispossession Act, 2005---Appellant had claimed ownership on the basis of general power of attorney issued by the actual lessee but the general power of attorney did not indicate that the possession was given to the appellant---Appellant had also claimed that the original lessee had executed a sale agreement in his favour but its complete copy was not produced---Agreement to sell, even otherwise, did not confer any right or title over the property---No tangible evidence was available on record to show that the appellant was in possession and subsequently, he was dispossessed from the subject premises---Dispute between the parties was a civil dispute, which was already sub judice before the High Court---Appeal was dismissed.

Shaikh Muhammad Naseem v. Mst. Farida Gul 2016 SCMR 1931; Mst. Gulshan Bibi and others v. Muhammad Sadiq and other PLD 2016 SC 769; Muhammad Akram and 9 others v. Muhammad Yousaf and another 2009 SCMR 1066; Daim Ali Khan v. Mushtaque Ali alias Farooq and 4 others 2017 YLR 1456; Habibullah and others v. Abdul Manan and others 2012 SCMR 1533; Qabil Khan v. Vth Additional Sessions Judge South Karachi and others 2018 PCr.LJ 1027 and Allah Rakhio and another v. The State and 4 others 2017 YLR Note 409 ref.

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

----S.3---Prevention of illegal dispossession of property---Applicability---Scope---Dispute between co-owner/Co-sharers---Civil dispute---Scope---Illegal Dispossession Act, 2005, has no application to cases of dispossession between co-owner/co-sharers---Illegal Dispossession Act, 2005, is not relevant to bona fide civil dispute, which are already sub judice before civil court or revenue courts.

Zahoor Ahmad and 5 others v. The State PLD 2007 Lah.231 ref.

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

----S.3---Prevention of illegal dispossession of property---"Property grabbers"---Scope---Illegal Dispossession Act, 2005 , was introduced in order to curb the activities of "qabza groups/property grabbers and land mafia"

Zahoor Ahmad and 5 others v. The State PLD 2007 Lah.231 ref.

Munawwar Ali Memon for Appellant.

Ovais Ali Shah for Respondents No.5.

Ali Haider Saleem, Deputy Prosecutor General, Sindh.

2021 M L D 416

[Sindh (Sukkur Bench)]

Before Adnan Iqbal Chaudhry, J

SHAFI MOHAMMAD KHAN----Applicant

Versus

ABDUL REHMAN and 5 others----Respondents

Civil Revision No.S-109 of 2017, decided on 16th September, 2020.

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

----S.91---Public nuisances---Scope---Application for mandatory injunction---Plaintiff filed suit for removal of encroachment of the public pathway by the defendants---Trial Court decreed the suit whereas Appellate Court dismissed the same by holding that the suit was against public nuisance and since the consent of the Advocate General as required by S.91, C.P.C, was not obtained, therefore, the suit was not maintainable---Validity---Suit for injunction to remove encroachment from a village pathway used also by the plaintiff himself apart from the other villagers, was an independent action not hit by S.91, C.P.C.---Finding of the Appellate Court that the suit was hit by S.91, C.P.C., was erroneous and a failure to exercise jurisdiction vested in it by law---Judgment and decree passed by Appellate Court was set aside and the appeal was remanded for decision afresh.

Lahore Cantonment Cooperative Housing Society Ltd. v. Builders and Developers (Pvt.) Ltd. PLD 1999 Lah. 305 and Muhammad Issa Abbasi v. Abdul Qadir PLD 2013 Sindh 60 ref.

Abdullah v. Ahmad Khan 1988 CLC 1301 rel.

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

----S.91---Public nuisances---Scope---Act of public nuisance may also be a private nuisance at the same time, in which case, a suit without the consent of the Advocate General as required by S.91(1), C.P.C., can be brought to the extent of the private injury suffered; that is so because a suit to redress private injury resulting from an act of public nuisance would be an independent cause of action envisaged under subsection (2) of S.91, C.P.C.

Naz Shaukat Khan v. Yasmin R. Minhas 1992 CLC 2540 and Clifton and Defense Traders Welfare Association v. President, Clifton Cantonment Board, Karachi PLD 2003 Kar. 495 ref.

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

----S.91---Public nuisances---Scope---Individual in whose favour a right exists independently can file a suit for declaration/injunction on the allegation of public nuisance; but where such a suit is filed with the consent of the Advocate General then institution of such suit would be deemed to be in a representative capacity on behalf of the people of the vicinity. [p. 418] B

Islamuddin v. Ghulam Muhammad PLD 2004 SC 633 ref.

Tariq G. Mangi for Applicant.

Abdul Rehman, Respondent No.1 in person.

Nemo for Respondents Nos.2 to 6.

2021 M L D 433

[Sindh]

Before Mohammad Ali Mazhar and Agha Faisal, JJ

MOHAMMAD SHAHID MURTAZA----Appellant

Versus

WARID TELECOM PRIVATE LIMITED through Chief Executive and 2 others----Respondents

First Appeal No.88 of 2017, decided on 4th October, 2019.

Defamation Ordinance (LVI of 2002)---

----Ss.10 & 13---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for defamation--- Rejection of plaint---Suit filed by plaintiff was rejected by Trial Court---Validity---Trial Court was primarily required to consider averments contained in plaint, for determination under O.VII, R.11, C.P.C.---Memorandum of plaint filed in suit was devoid of any allegation with regard to any material published and distributed by defendant, which would lower reputation of plaintiff in society and in absence thereof a claim under Defamation Ordinance, 2002, was not permissible---High Court declined to interfere in the order passed by Trial Court--- Appeal was dismissed, in circumstances.

Shah Jehan v. Feroz Shah and others 2013 CLD 1807 ref.

Ayesha Bibi v. Additional District Judge, Lahore 2018 SCMR 791 and Hakim Ali v. Pakistan Herald Publications and others PLD 2007 Kar. 415 rel.

Khawaja Naveed Ahmed Barrister at Law for Appellant.

Rajendar Kumar Chhabria for Respondent No.1.

2021 C L C 444

[Sindh]

Before Irshad Ali Shah, J

WAHEED ALI----Applicant

Versus

Syed ALI TAQI SHAH and another----Respondents

Criminal Miscellaneous Application No.S-196 of 2019, decided on 11th May, 2020.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss. 302, 120-B & 34---Qatl-i-amd---Petition for cancellation of bail, dismissal of---Allegation against the private respondent with rest of culprits was that they, after having formed an unlawful assembly and in prosecution of their common object, committed murder of the deceased by causing him dagger injuries---No doubt, the private respondent was named in the FIR with specific role of causing dagger injury to deceased but there was no denial to the fact that he was found to be innocent by the police---Consequently, he was placed in column No.2 of the charge sheet---Respondent was granted bail by trial Judge on point of further inquiry and such inquiry had yet to commence in shape of trial---Respondent had never misused the concession of bail at trial---Principles for grant and cancellation of bail were totally different---Criminal miscellaneous application was dismissed accordingly.

Sardar Munir Ahmed Dogar v. The State 2005 Cr.LJ 23 and Ehsan Akbar v. The State and 2 others 2007 SCMR 482 ref.

Meeran Bux v. The State and another PLD 1989 SC 347 ref.

Safdar Ali Ghouri for Applicant.

Athar Abbas Solangi for Private Respondent.

2021 M L D 478

[Sindh]

Before Mohammad Ali Mazhar and Agha Faisal, JJ

NADEEM MUMTAZ RAJA---Petitioner

Versus

SINDH FOOD AUTHORITY, GOVERNMENT OF SINDH through Director General and another---Respondents

Constitutional Petition No.D-7988 of 2018, decided on 4th October, 2019.

Sindh Food Authority Act, 2016 (XIV of 2017)---

----Ss.26, 27 & 28---Constitution of Pakistan, Art. 199---Constitutional petition---Unsafe food---Penal action---Petitioner was owner of a restaurant who sought quashing of proceedings initiated against him for selling unsafe food which resulted into death of two children---Validity---Constitutional jurisdiction of High Court was intended primarily to safeguard Fundamental Rights enshrined in the Constitution---Petitioner failed to show infringement of any Fundamental Right that would merit exercise of jurisdiction by High Court---Stifling actions of an authority at a nascent stage of proceedings initiated in the interests of general public, was contrary to the interests of justice---High Court declined to quash the process as adjudication process was merely at initial stage---Constitutional petition was dismissed in circumstances.

Cantonment Board Peshawar v. District Sanitary and Food Inspector Peshawar and others 1993 SCMR 941; Bottled Water's case, Suo Motu Case 26 of 2018 and Azfar Laboratories (Private) Limited v. Federation of Pakistan and others PLD 2018 Sindh 448 ref.

Bahzad Haider for Petitioner (C.Ps. Nos.D-7988 and D-8133 of 2018).

Ishrat Zahid Alvi, Assistant Attorney General for Respondents (C.Ps. Nos.D-7988 and D-8133 of 2018).

Sibtain Mehmood, Additional Advocate General, Jawad Dero, Advocate General.

Hussain Bukhsh Sario, Sindh Food Authority.

2021 M L D 518

[Sindh]

Before Nazar Akbar, J

Syed QABOOL MUHAMMAD SHAH----Applicant

Versus

The STATE----Respondent

Criminal Miscellaneous Application No.141 of 2017, decided on 14th May, 2018.

Criminal Procedure Code (V of 1898)---

----S.561-A---Inherent powers of High Court---Dismissal of complaint---Reluctance of complainant to appear in witness box---Scope---Accused was facing trial in an FIR registered under Ss.302 & 34, P.P.C. in the year 2004---Challan was submitted in the year 2004 and the charge was framed in the year 2010---Complainant and the main witnesses since then had not appeared in the Trial Court to get their evidence recorded---Conduct of the complainant indicated that in fact he had no evidence against the accused and that's why he was avoiding to appear in the witness box---Prosecutor though had referred to the order of Trial Court in which it had ordered the arrest and production of material witnesses but if the witnesses were brought in chains then they could not be treated as free and impartial witnesses---Failure of the complainant to appear in the witness box for the last 14 years despite being available around the court was enough to dismiss the complaint and acquit the accused---Application was allowed as prayed.

2021 M L D 531

[Sindh (Sukkur Bench)]

Before Adnan Iqbal Chaudhry, J

Syed SHAHAN SHAH alias Syed Nasrullah Shah through Legal Heirs---Applicant

Versus

Syed AMANULLAH SHAH and 17 others---Respondents

Revision Application No.S-88 of 2002, decided on 5th October, 2020.

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

----Ss.141 & 172---Suit for specific performance of agreement to exchange land--- Agriculture land--- Private partition--- Civil Court, jurisdiction of--- Scope--- Plaintiff / appellant filed suit for enforcing agreement to exchange agriculture land--- Suit was decreed in favour of plaintiff / appellant by Trial Court mainly on the ground that it was a contract enforceable at law--- Lower Appellate Court dismissed the suit on the ground that agreement was not enforceable as it contained some lands acquired by government--- Validity--- Even if parties agreed to private partition of their joint agriculture land, remedy of plaintiff / appellant for partition of his share laid before Revenue Officer under Sindh Land Revenue Act, 1967--- In absence of order by Revenue Officer under S.141 of Sindh Land Revenue Act, 1967, requiring a party to approach a civil court, the civil Court could not have assumed jurisdiction--- Express bar to jurisdiction of Civil Court under S.172 of Sindh Land Revenue Act, 1967, could only be circumvented if plaintiff had demonstrated that case attracted one of the established exceptions to ouster plenary jurisdiction of civil Court--- Such was not case of plaintiff / appellant that he had made application to Revenue Officer under S.147 Sindh Land Revenue Act, 1967, for an order to affirm private partition or at least, no order was passed under Sindh Land Revenue Act, 1967 was assailed by plaintiff / appellant---No ouster of jurisdiction of Civil Court by S.172 of Sindh Land Revenue Act, 1967--- High Court declined to interfere in judgment and decree passed by Lower Appellate Court as Civil Court had wrongly assumed jurisdiction over the suit--- Revision was dismissed, in circumstances.

Kalander Bakhsh M. Phulpoto for Applicant.

Nemo. for Respondents Nos.1 to 14.

Ahmed Ali Shahani, Assistant Advocate General Sindh for Respondents Nos.15 to 18.

2021 M L D 568

[Sindh (Larkana Bench)]

Before Muhammad Junaid Ghaffar, J

SUI SOUTHERN GAS COMPANY LTD. through Authorized Officer/Attorney-- Appellant

Versus

Messrs DATA CNG FILLING STATION, LARKANA---Respondent

Civil Appeal No.S-05 of 2019, decided on 18th September, 2020.

Gas (Theft Control and Recovery) Act (XI of 2016)---

----Ss.3, 4, 5 & 13---Civil Procedure Code (V of 1908), O.VII, Rr.10 & 11--- Suit for recovery of gas charges--- Gas Utility Court--- Jurisdiction--- Suit filed by Gas Company was returned by Civil Court to be filed before Court of competent jurisdiction whereas the District Judge rejected the plaint---Validity---Application under O.VII, R.11, C.P.C., could only be entertained by a Court having jurisdiction in the matter---Only the Court having jurisdiction could reject the plaint on the ground that it was barred in law---If Court had no jurisdiction to adjudicate a matter on merits, said Court could not exercise such jurisdiction to reject plaint on the ground that it was barred in law---Court lacking jurisdiction could only exercise powers under O.VII R.10, C.P.C., for returning the plaint for its presentation before Court having jurisdiction and not to exercise powers for rejection of plaint---High Court set aside the order passed by District Judge and remanded the matter for decision afresh---Appeal was allowed, in circumstances.

Samsonite IP Holdings S.a.r.l. v. Famous Brands (Pvt.) Limited 2019 CLD 1060; Muhammad Nasir v. Abdul Hakim Khan 2011 CLC 748; Haroon-ur-Rashid v. Lahore Development Authority 2016 SCMR 931 and Rauf Baksh Kadri v. The State and others 2003 MLD 777 ref.

Asim Iqbal for Appellant.

Zamir Ali Shah for Respondent.

2021 M L D 589

[Sindh]

Before Fahim Ahmed Siddiqui, J

TARIQ SHAFI----Applicant

Versus

The STATE----Respondent

Criminal Pre-Arrest Bail Application No.1676 of 2018, decided on 12th July, 2019.

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

----S.498---Penal Code (XLV of 1860), Ss.489-F & 420---Dishonestly issuing a cheque, cheating---Bail before arrest, confirmation of---Business transaction---Cheque as security---Complainant gave money to the accused on monthly profit basis who subsequently avoided to pay profit---On demand by complainant, accused gave cheques which were dishonoured---Accused contended that cheques were given as security---Validity---Held, accused was not a licensed money lender, giving amount on profit to him was irrational and dubious---Business transaction was admitted---Contention by the accused that the cheques were issued as security appeared to be logical---Cheques were returned to the complainant on account being dormant, Bank had not mentioned that there were insufficient funds---Ingredient of dishonesty was a condition precedent to attract provision of S.489-F, P.P.C., which was missing in the present case---Interim bail granted to the accused was confirmed, in circumstances.

Faisal Iqbal for Applicant and applicant is present on interim pre-arrest bail.

S.M. Iqbal for the Complainant.

2021 M L D 599

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

SARFRAZ AHMED----Appellant

Versus

The STATE----Respondent

Criminal Jail Appeal No.244 of 2014, decided on 30th March, 2020.

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

----Ss.6 & 9(c)---Possession and trafficking of narcotic substance---Appreciation of evidence---Prompt lodging of FIR---Effect---Prosecution case was that 17 kilograms of heroin powder was recovered from the vehicle of the accused---Record showed that FIR was registered with promptitude giving no time for concoction and statements under S.161, Cr.P.C. were recorded promptly which were not significantly improved upon by any witness at the time of giving evidence---Appeal against conviction was dismissed, in circumstances.

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

----S.154---First Information Report---Scope---First Information Report was not a substantive piece of evidence and non-examination of its scribe could not be considered fatal to the prosecution case.

Muhammad Akram v. State 2006 SCMR 1567 rel.

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

----Ss.6 & 9(c)---Possession and trafficking of narcotic substance---Appreciation of evidence---Prosecution case was that 17 kilograms of heroin powder was recovered from the vehicle of the accused---Record showed that arrest and recovery was made on the spot and the accused was caught red-handed with the narcotic by the police and evidence of witnesses fully corroborated each other in all material respects as well as the prosecution case---In the present case, no enmity had been suggested against any of the police witnesses and as such the police had no reason to implicate the accused in a false case---Spy information about the car and its likely route, which was pointed out by the spy informer, fully corroborated the prosecution case, since that was the car in which the accused was stopped and arrested in whilst proceedings along the informed route and the narcotic was recovered along with the car---Said car was owned by the accused and he was the only person in the car and as such there was no doubt that the accused had actual knowledge of the narcotic which was being transported---Circumstances suggested that it would be extremely difficult to foist such a large amount of heroin---No delay in sending the samples for chemical analysis was found which turned out to be positive---Recovered narcotics were kept in safe custody from the time of their recovery to the time when they were taken for chemical analysis and no suggestion of tampering with the same had even been made---Narcotics were sealed/placed in stitched cloth bag on the spot, remained sealed in the malkhana before being transported to the Chemical Examiner and the narcotics reached the Chemical Examiner in a sealed condition as per the chemical report---All relevant police entries were duly exhibited---Circumstances established that the prosecution had proved its case against the accused beyond any doubt---Appeal against conviction was dismissed accordingly.

Qaddan and others v. The State 2017 SCMR 148; Ikramullah and others v. The State 2015 SCMR 1002; Mst. Irshad Begum alias Shadan v. The State 2016 PCr.LJ 407; Arshad Hussain v. The State 2011 SCMR 1400; Mehboob-ur-Rehman v. The State 2010 MLD 481; State through Regional Director ANF Peshawar v. Sohail Khan 2019 SCMR 1288; Muhammad Kamran v. The State 2019 SCMR 1314 and Hussain Shah and others v. The State PLD 2020 SC 132 ref.

Nadir Khan v. State 1998 SCMR 1899; Hussain Shah and others v. The State PLD 2020 SC 132 and The State v. Abdali Shah 2009 SCMR 291 rel.

(d) Criminal trial---

----Witness---Police Officials---Scope---Evidence of a police witness was a reliable as any other witness provided that any enmity existed between them and the accused.

(e) Criminal trial---

-----Witness---Minor contradictions---Scope---Minor contradictions which did not affect the materiality of the evidence could be ignored.

Zakir Khan v. State 1995 SCMR 1793 rel.

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

----S.29---Possession of illicit article---Presumption---Scope---Once the recovery had been proved, the onus would shift to the accused to show his innocence that he had no knowledge of the narcotics.

Mehboob-ur-Rehman v. State 2010 MLD 481 rel.

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

----Ss.6, 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Possession and trafficking of narcotics substance---Appreciation of evidence---Prosecution case was that 17 kilograms heroin powder was recovered from the possession of the accused---No independent mashir was associated with the arrest and recovery of the accused and no private person was available to become an independent mashir at the time of arrest and recovery---Section 103, Cr.P.C., was excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S.25 of the Act.

Muhammad Hanif v. The State 2003 SCMR 1237 rel.

Muhammad Iqbal Chaudhry for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

2021 M L D 624

[Sindh (Larkana Bench)]

Before Muhammad Junaid Ghaffar, J

SAFDAR HUSSAIN JATT through Attorney and 3 others----Applicants

Versus

ZAFAR ALI ARAIN and 4 others----Respondents

Civil Revision Application No.S-85 of 2010, decided on 3rd September, 2020.

(a) Power of Attorney---

----Authority/Attorney representing the party in the suit, powers of ---Objection of the respondent was that the power of attorney, annexed/placed on record by the petitioners before the High Court, was not in respect of civil revision-in-hand but he (attorney) was authorized to the extent/purposes of civil suit only---Held, record revealed that Attorney was appointed by the petitioners purportedly after the demise of their father (original defendant/owner of the suit-property)---Deed of power of attorney stipulated that petitioners had appointed their special attorney for them in the case while mentioning title of the civil suit---Proceedings of appeal and revision, in the present case, were apparently in continuation of the civil suit and the word "case" would not only include the civil suit but the adjudication of the case even thereafter---If the attorney was acting in support of the executants preserving their interests and where the executants had not come forward to object/dispute the authority so conferred, then the presumption would be that the attorney was competent to act in the interest of the executants---High Court dismissed the objection raised by the respondent and held that a competent person had filed revision petition on the behalf of the petitioners.

First Dawood Investment Bank Limited v. Bank Islami Limited 2020 CLD 49; First Dawood Investment Bank Limited v. Bank Islami Limited 2019 SCMR 1925; Qadir Buksh and others v. Kh. Nizam-ud-Din Khan and others 2001 SCMR 1091; Muhammad Khaliq v. Abdullah Khan 1987 CLC 1366 and Muhammad Nazir v. Muhammad Yaqub 2003 SCMR 1246 ref.

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

----O.XLI, R.31---Judgment passed by the Appellate Court in terms of O.XLI, R.31 C.P.C, 1908 without mentioning the points for determination---Scope and effect---Impugned judgment revealed that though specific points for determination had not been so stated, however, the Appellate Court had given its cogent findings, after perusal of the material available on record and going through the record and proceedings of the Civil Court---If the Appellate Court had not framed points for determination in any case, then such judgment would not be liable to be set aside on such ground alone, rather the same became immaterial when all the raised questions had been answered by the Appellate Court---Case of the petitioners was not that any mis-reading or non-reading of evidence was involved or that the Court below had no jurisdiction, or said Courts had acted in excess of their jurisdiction---No illegality or infirmity was found in the judgment passed by the Appellate Court below in decreeing the suit of the respondent---Revision petition was dismissed, in circumstances.

Muhammad Iftikhar v. Nazakat Ali 2010 SCMR 1868; Hafiz Ali Ahmad v. Muhammad Abad and others PLD 1999 Kar. 354; Ghulam Samdani and others v. Faqir Khan PLD 2007 Pesh. 14; Abdulllah and 11 others v. Muhammad Haroon and 8 others 2010 CLC 14 and Muhammad Azam v. Mst. Khursheed Begum and 9 others 2013 YLR 454 ref.

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

----S.115 & O. XLI, R. 31---Judgment passed by the Appellate Court in terms of O.XLI, R.31, C.P.C, 1908 without mentioning the points for determination---Revisional jurisdiction of the High Court---Scope---Once the Appellate Court had decided the case with detailed reasoning, then even its failure to mention the points of determination separately in its order would not be damaging---High Court declined interference in the present case while exercising its revisional jurisdiction. [p. 634] C

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

----O.VIII---Written-statement submitted by the defendant who passed away without appearing in witness box---Effect---Contention of the petitioners was that since the original defendant (father of the respondents) expired after filing of his written-statement but without appearing in the witness-box, therefore, no reliance could be placed on such written-statement by his legal heirs---Held, that though, ordinarily, until the written-statement was proved in the evidence after going through the test of cross-examination, the same could not be relied upon, however, at the same time , in cases like the present one, when the person who was privy to the real facts had expired after filing of written-statement, his legal heirs/attorney could not go beyond the stance of the deceased recorded by him in the written-statement, except where rare permission had been granted to file another written-statement ---Facts could not be added, twisted or changed in such circumstances by his legal heirs as they were not in any better position to prove or disprove such facts.

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

----S.215---Specific Relief Act (I of 1877), Ss.12 & 54---Suit for specific performance and permanent injunction---Agreement-to-sell immoveable property---Power of attorney, revocation of---Scope--- Petitioners contended that attorney, appointed by their deceased father (who executed agreement-to-sell regarding the suit-property) was acting dishonestly so the power of attorney's authority was revoked---Held, that duly registered power of attorney, in respect of immoveable property, could be revoked only either through another registered instrument after proper notice to the attorney or by way of publication in the newspaper---Principal/Executant could not simply resile from the power of attorney without adopting said process of law---Neither notice was issued to the attorney, in the present case, for the cancellation of power nor the publication was made in the newspaper---Even cancellation deed so recorded did not contain any objection on the authority of the said attorney---Agreement-in-question was, admittedly, entered into within the validity of the power of attorney before its purported revocation, therefore, plaintiff/respondent could not be burdened to suffer the consequences---Contention of the petitioners appeared to be an afterthought firstly on the part of deceased father (original defendant) and then by the petitioners (legal heirs) themselves---In absence of any challenge to authority of attorney, the petitioners could not raise objections regarding invoking S.215 of the Contract Act, 1872---Agreement existed at the relevant time and attorney had powers to sell the property---No illegality or infirmity was found in the judgment passed by the Appellate Court below in decreeing the suit of the respondent---Revision petition was dismissed, in circumstances.

Ahmad Khan v. Settlement Commissioner 1975 SCMR 64 and Raja Muhammad Arshad v. Raja Rabnawaz 2015 SCMR 615 ref.

Muhammad Ashraf v. Muhammad Malik PLD 2008 SC 389 and Faqir Muhammad v. Pir Muhammad 1997 SCMR 1811 distinguished.

Prem Chand R. Sawlani for Applicants.

Ghulam Dastagir A. Shahani for Respondent No.1.

Abdul Hamid Bhurgri, Additional Advocate-General.

2021 M L D 658

[Sindh]

Before Muhammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

HAMEEDULLAH KHAN and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos.D-2836, D-3496, D-3706 and D-4203 of 2017, of decided on 17th September, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a)(ix) & 9(b)---Constitution of Pakistan, Art.199---Constitutional petition---Pre-arrest bail, refusal of---Cheating members of public at large---Mala fide---Prima facie case---Petitioners were alleged to have cheated members of public at large by seeking their investments of Rs.123.025 million in their housing scheme---Validity---No provision of pre-arrest bail existed in relevant laws for which petitioners were charged--- Only High Court by invoking extraordinary Constitutional jurisdiction could grant such relief very sparingly in rare and exceptional circumstances for valid reasons to be recorded in writing---Conditions for grant of pre-arrest and post-arrest bails were quite different---No mala fide on the part of National Accountability Bureau (NAB) officials was pointed out by petitioners nor was available on record---Elaborate sifting of evidence could not be made but only a tentative assessment was permissible--- All petitioners in connivance of one another cheated allottees after taking a huge amount from them and deprived them of their right of ownership and title---Pre-arrest bail was dismissed, in circumstances.

Rana Muhammad Arshad v. Muhammad Rafique 2009 SC 427 and Mukhtar Ahmad v. The State and others 2016 SCMR 2064 rel.

Altaf Ahmed Shaikh for Petitioners (in C.Ps. No.D-2836 and D-3496 of 2017).

M. Mohsin Khan for Petitioner (in C.P. No.D-3706 of 2017).

Mustafa Safvi for Petitioners (in C.P. No.D-4203 of 2017).

Zahid Hussain Baladi, Special Prosecutor, NAB assisted by I.O. Irfan Ali.

2021 M L D 669

[Sindh (Sukkur Bench)]

Before Irshad Ali Shah, J

AYAZ ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-242 of 2020, decided on 22nd June, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 147, 149, 504, 337-H, 337-A(i) & 337-F(i)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, common object, intentional insult with intent to provoke breach of peace, hurt by rash or negligent act, shajjah-i-khafifah, damiyah---Bail, refusal of---Scope---Accused along with others was alleged to have committed qatl-i-amd---Name of the accused appeared in the FIR with specific allegation that he with the rest of the culprits after having formed an unlawful assembly and in prosecution of their common object went over to the complainant party and then committed death of the deceased by causing him lathi, iron rod and hatchet injuries---Specific role of causing hatchet blow to the deceased was attributed to the accused, therefore, it was premature to say that the accused being innocent had been falsely involved in the case---Provisional medical certificate, no doubt, opined that the deceased was found sustaining injuries with hard blunt substance but such provisional opinion could hardly be allowed to prevail over ocular evidence---Deeper appreciation of the facts and circumstances was not called for while deciding the bail application---Delay of two days in lodging the FIR was itself explained in the FIR---Parties were known to each other, therefore, identity of the culprits by the complainant party in the light of bulb could hardly be doubted at bail stage---No case for grant of bail was made out---Petition for grant of bail was dismissed, in circumstances.

Achar Khan Gabole for Applicant.

Muhammad Juman Sahito along with Complainant.

2021 M L D 709

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

SANOFI-AVENTIS PAKISTAN LIMITED through duly Authorized Representative and others---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Health Services, Regulation and Coordination and others---Respondents

Constitutional Petition D-4197 of 2019 (and other connected petitions) decided on 17th February, 2020.

Drugs Regulatory Authority of Pakistan Act (XXI of 2012)---

----Ss.7 & 9---Drug Pricing Policy, 2015 and Drug Pricing Policy, 2018---Drug pricing---Maximum Retail Price (MRP)---Determination---Generic and hardship cases---Petitioners were pharmaceutical manufacturers and dispute with this government was with regard to fixing of MRP---Validity---Authorities failed to justify as to why earlier determination per Drug Pricing Policy, 2015 was maintained at the point in time when Drug Pricing Policy, 2018 was in force---Consensual roadmap was agreed inter se under the supervision of Supreme Court culminating in Drug Pricing Policy, 2018 based whereupon litigation, challenging the application of Drug Pricing Policy, 2018 was withdrawn---Approach of Appellate Board to maintain Drug Pricing Policy, 2015, was not justified before High Court as the same had set the entire exercise piloted by Supreme Court to naught---Direct approach to High Court by petitioners in "Hardship" cases was contrary to the directives of Supreme Court as enunciated in Human Rights Case order---High Court directed the authorities to de novo determine MRP of therapeutic goods of petitioners in application of Drug Pricing Policy, 2018 and set aside the order passed by Appellate Board---High Court declined to interfere in the issues raised in Generic and Hardship case and directed the petitioner to place their grievance before appellate forum---Constitutional petition was allowed accordingly.

Human Rights case 2858 of 2006 rel.

HRMA 478 of 2018; Pfizer Pakistan (Private) Limited v. Federation of Pakistan and others 2019 MLD 1849; CPLA 1510 of 2019 and CPLA 2545 of 2019; Criminal Original Petition 89 of 2011 passed on Criminal Miscellaneous Application No.1381 of 2016 dated 18.08.2016; Atco Lab (Pvt.) Limited v. Pfizer Limited and others 2002 CLD 120; Hameed Akhtar Niazi v. Secretary Establishment Division Pakistan 1996 SCMR 1185; Federation of Pakistan v. Qamar Hussain Bhatti PLD 2004 SC 77 and Dawood Sighar and others v. Province of Sindh and others 2016 PLC (C.S.) 1 ref.

Raashid K. Anwar for Petitioner (in Constitutional Petition No.D-4845 of 2019).

Barrister Umaimah Khan for Petitioner (in Constitutional Petition No.D-4101 of 2019).

Barrister Abdul Sattar Pirzada for Petitioners (in Constitutional Petitions Nos. D-4197, D-4215, D-4291, D-4328, 5085, 5086, D-5612, D-5613 and D-5614 of 2019).

Mamoon N. Chaudhry for Petitioners (Constitutional Petitions D-4291, D-4328, D-5085, D-5086, D-5612, D-5613, D-5614 and D-5902 of 2019).

Waheed Alam for Petitioners (Constitutional Petition D-5674 and D-7768 of 2019).

Hussain Bohra, Assistant Attorney General for Respondent.

Nadeem Ahmed Khan, Assistant Attorney General for Respondents.

Amanullah, Deputy Director Pricing, DRAP for Respondents.

2021 M L D 759

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

ALI GUL----Applicant

Versus

The STATE and 6 others----Respondents

Criminal Miscellaneous Application No.S-162 and M.A. No.1226 of 2019, decided on 14th September, 2020.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Inherent powers of High Court---Quashing of order---Scope---Application filed by complainant for transfer of the case to the Anti-Terrorism Court for trial was dismissed---Validity---Accused were charged for committing murder of the brother and maternal-uncle of the complainant by causing hatchet and lathi blows and then forcibly threw them under the rear wheels of troller on the main road, resultantly they were smashed and died there---Complainant in the FIR had not mentioned any word, which might suggest that the private respondents had created any sort of terror and sense of insecurity amongst the general public of the area at the time of incident---Admittedly, there was previous enmity between the parties over the matter of Karap and series of FIRs had been registered against each other---No ingredients of S.6 of the Anti-Terrorism Act, 1997, were attracted in the case---There was nothing on record to suggest that it was pre-planned incident, which might call for its adjudication by the Court constituted under the provisions of Anti-Terrorism Act, 1997---Impugned order did not call for interference, in circumstances---Application was dismissed accordingly.

Province of Punjab through Secretary Punjab Public Prosecution Department and another v. Muhammad Rafique and others PLD 2018 SC 178 rel.

Shamsuddin Rajper for Applicant/Complainant.

Rizwan Ahmed Jagirani for Respondents Nos.2 and 3.

Fayyaz Ahmed A. Soomro for Respondents Nos.4 to 6.

Aftab Ahmed Shar, Additional P.G. for the State.

2021 M L D 772

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

DOST MUHAMMAD alias DOOSO----Appellant

Versus

The STATE----Respondent

Criminal Appeal No.S-169 of 2016, decided on 22nd April, 2020.

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

----S.23(1)(a)---Criminal Procedure Code (V of 1898), S.103---Recovery of unlicensed firearms---Appreciation of evidence---Recovery---Non-association of private witnesses---Scope---Prosecution case was that .7mm pistol along with magazine and five cartridges were recovered from the personal search of accused---Complainant stated that the alleged recovery of .9mm pistol with magazine from possession of accused was made from a road---Complainant in his cross-examination admitted that said road remained busy and from place of information to the place of arrest of accused, there was huge population---Admittedly, complainant had received prior spy information about presence of accused who was required in various cases---When spy information was conveyed to the complainant and place of arrest of the accused and recovery of firearm weapon from his possession was a busy and populated area then why complainant did not arrange any private witness from the locality to act as mashir---Complainant had also not deposed that at least he made any efforts to procure private/independent persons for acting as witnesses / mashirs in the case---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S.103---Mode of making searches and arrest---Appreciation of evidence---Search to be made in presence of witnesses---Purpose and Scope---Purpose of associating independent mashirs of the locality is to ensure transparency of the recovery process---Needless to emphasize that in view of the provisions of S.103, Cr.P.C., the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted, so as to lend credence to such actions and to restore public confidence---Only cursory efforts are not enough in order to fulfil casual formality, rather serious and genuine attempts should be made to associate private persons of the locality in the recovery process.

State v. Bashir and others PLD 1997 SC 408 and Yameen Kumhar v. The State PLD 1990 Kar. 275 rel.

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

----S.23(1)(a)---Recovery of unlicensed firearms---Appreciation of evidence---Benefit of doubt---Delay of about six days in sending the crime weapon to the Forensic Science Laboratory for analysis---Effect---Prosecution case was that .7mm pistol along with magazine and five cartridges were recovered from the personal search of accused---Record showed that the date of receiving the said firearm weapon in the Forensic Science Laboratory had been shown as 17.06.2016, whereas the same was allegedly recovered from the accused on 11.06.2016---No plausible explanation had come forward from prosecution side for such delay which created doubt in the veracity and credibility of such recovery, so also about the report of the ballistic expert, more particularly when the Investigating Officer did not claim that he had deposited the alleged recovered weapon in the Malkhana during the intervening period---In the Forensic Science Laboratory Report while describing the weapons, it had been mentioned, 'one .9mm bore pistol No. Rubbed with magazine and five .9mm bore live cartridges as exhibits, now butt/body signed'---However, neither in the FIR nor in the evidence of complainant or mashir and even nor in the charge framed by the Trial Court against the accused, there was any mention that the allegedly recovered pistol was having rubbed number---Said fact also created suspicion as to whether the pistol allegedly sent to Forensic Science Laboratory by the Investigating Officer was in fact the same pistol which was allegedly recovered from the possession of the accused or not---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Samandar alias Qurban and others v. The State 2017 MLD 539; Yaqoob Shah v. The State 1995 SCMR 1293 and Ghulam Hussain and 2 others v. State 1998 PCr.LJ 779 rel.

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

----S.23(1)(a)---Recovery of unlicensed firearms---Appreciation of evidence---Benefit of doubt---Contradictions in the evidence---Scope---Prosecution case was that .7mm pistol along with magazine and five cartridges were recovered from the personal search of accused---Complainant in his cross-examination deposed that trigger of the pistol was out of order---Not understandable that when complainant deposed that trigger of the pistol was out of order then as to how in Forensic Science Laboratory Report it had been opined that the said pistol was in working condition---Said contradiction was fatal to the prosecution case---Appeal against conviction was allowed, in circumstances.

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

----S.23(1)(a)---Recovery of unlicensed firearms---Appreciation of evidence---Benefit of doubt---Burdon of proof---Scope---Prosecution case was that 7mm pistol along with magazine and five cartridges were recovered from the personal search of accused---Prosecution was bound under the law to prove its case against the accused beyond any shadow of reasonable doubt---No such duty was cast upon the accused to prove his innocence---Circumstances established that the prosecution had failed to prove its case against t he accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances

(f) Criminal trial---

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

Wazir Muhammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---Accused could not be deprived of benefit of doubt merely because there was only one circumstance which created doubt in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Wajid Ali Khaskheli for Appellant.

Sobia Bhatti, A.P.G., Sindh for Respondent.

2021 M L D 803

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

AHMED---Applicant

Versus

STATE---Respondent

Criminal Revision Application No.S-191 of 2013, decided on 22nd November, 2019.

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

----S.13---Unlicensed possession of arms---Appreciation of evidence---Benefit of doubt---Complainant acting as Investigating Officer---Non-association of independent witnesses---Failure to solicit report of Ballistic Expert---Failure to confront the accused with the weapon---Effect---Accused was convicted for being in possession of 32 bore revolver along with two bullets---Complainant himself had acted as Investigating Officer; therefore, such investigation could not be termed to be impartial as one could not go against his own action and the prosecution witness was subordinate to him---Evidence of police officials, no doubt, was as good as that of other public witnesses but police officials were required to associate independent persons to maintain fairness---Weapon allegedly recovered from the possession of accused was not sealed on the spot nor was it sent to the Ballistic Expert---Even the weapon was not confronted to the accused at the time of recording his statement under S.342, Cr.P.C.---Conviction and sentence awarded to the accused was set aside---Revision application was allowed.

Muhmamad Riaz v. The State 2009 MLD 976 rel.

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

----S.13---Constitution of Pakistan, Art. 10-A---Unlicensed possession of arms---Right to fair trial---Cross-examination by accused himself---Effect---Accused was convicted for being in possession of .32 bore revolver along with two bullets---Accused was not given an opportunity to bring his counsel and at the time of recording evidence he himself had conducted the cross-examination; therefore, he being layman and having no knowledge of law could not ask material questions to ascertain the truth behind the screen---Accused was deprived of his right to defend---Accused could not be said to have been heard, thus, he was condemned unheard---Trial was conducted in clear violation of Art.10-A of the Constitution---Conviction and sentence awarded to the accused was set aside---Revision application was allowed.

Muhammad Bashir v. The State PLD 2008 SC 160 ref.

Imtiaz Ali Channa for Applicant along with applicant (on bail).

2021 M L D 850

[Sindh]

Before Irfan Saadat Khan and Yousuf Ali Sayeed, JJ

MASHOOQ ALI RAJPAR---Appellant

Versus

Raja ABDUL HAMEED and another---Respondents

1st Appeal No.22 of 2018, decided on 4th November, 2020.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), S.118---Limitation Act (IX of 1908), Art.159---Presumption as to negotiable instrument---Summary suits upon bill of exchange---Limitation---Extension in time by court---Scope---Appellant assailed judgment passed by Trial Court whereby respondents' suit filed under O.XXXVII, C.P.C., on the basis of cheque was decreed---Case set up by the respondents was that one of them had advanced certain sum of amount to the appellant for business purposes, upon a dispute having subsequently arisen and time being sought by appellant for repayment of the balance amount, a cheque was issued in favour of the other respondent to secure such obligation but the cheque was dishonoured, following which suit was filed---Contention of appellant was that he was condemned unheard as his application for leave to defend was wrongly dismissed; that he had applied for an adjournment which was granted and the application was filed on that date; that as the Court had granted adjournment, therefore, the appellant ought not to have been penalized on the point of limitation and that he had entered into a contract for purchase of vehicle with the respondent in whose favour the cheque was issued---Validity---Trial Court without any extension had simply put off the matter for another date---Period of 10 days of limitation prescribed in terms of Art. 159 of the Limitation Act, 1908, had already lapsed by the date when the appellant had sought adjournment---High Court while looking to the merits of the defence sought to be raised in terms of the Application for Leave to Defend observed that no date of the so-called transaction was given nor any document in that regard was referred---Plea raised by appellant could not serve to unsettle the presumption to be made in terms of S.118 of the Negotiable Instruments Act, 1881---Appeal was dismissed.

Syed Amir Ali Shah Jeelani for Appellant.

M. Peer Rahman for Respondents.

2021 M L D 863

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

ZARINA IQBAL---Appellant

Versus

Haji JAFFAR and 6 others---Respondents

High Court Appeal No.260 of 2019, decided on 16th November, 2020.

Karachi Building and Town Planning Regulations, 2002---

----Reglns. 2.9, 2.10, 2.53, 2.54, 18.4, 19.2.1, 25.2 & 25.4---Violation of category of plot---Proof---Nuisance and easement rights---Plaintiff alleged that defendant was constructing residential flats for dwelling purposes in a multi-storey building which was violation of provision of Karachi Building and Town Planning Regulations, 2002---Single Judge of High Court declined to grant interim injunction against construction of flats---Validity---Defendant did not violate Karachi Building and Town Planning Regulations, 2002, as construction of flats did not change land use of subject plot, provided that no high rise building was raised at the subject property---Creating nuisance and violation of easement rights could not be decided at interlocutory stage as those were triable issues and could be decided after leading of evidence---Division Bench of High Court declined to interfere in the order passed by the Single Judge of High Court---Intra-Court Appeal was dismissed, in circumstances.

Kathiawar Cooperative Housing Society Ltd. through Member Managing Committee and another v. Province of Sindh through Secretary and 3 others 2018 YLR 560 and Muhammad Anas Kapadia and 19 others v. M. Farooq Haji Abdullah and 5 others 2007 CLC 943 distinguished.

Zaheer Ahmed Chaudhry and 9 others v. City District Government, Karachi through Nazim-e-Ala and 13 others 2006 YLR 2537; Standard Chartered Bank Limited through Constituted Attorney v Karachi Municipal Corporation through Administrator and 9 others 2015 YLR 1303; Standard Chartered Bank Limited through Administrator, Karachi and 7 others v. Karachi Municipal Corporation through Administrator, Karachi and 7 others 2014 YLR 1689 and Jawad Mir Muhammadi v. Haroon Mirza PLD 2007 SC 472 ref.

Intikhab Alam for Appellant.

Khawaja Shams-ul-Islam, Muhammad Mustafa and Imran Taj for Respondent No.1.

Muhammad Meeran Shah, Additional Advocate General Sindh for Respondents Nos.6 and 7.

Nemo. for Respondents Nos.2 to 5.

2021 M L D 885

[Sindh]

Before Muhammad Ali Mazhar and Arshad Hussain Khan, JJ

ABDULLAH ANJUM ALIM---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Education and 5 others---Respondents

Constitutional Petition No.D-6106 of 2020, decided on 8th December, 2020.

Pakistan Medical Commission Act( XXXIII of 2020)----

----S.18---Medical and Dental Colleges Admission Test---Appearance---Number of chances---Scope---Petitioner had sought permission to appear in upcoming Medical and Dental Colleges Admission Test (MDCAT) contending that there was no restriction in giving him second chance to appear in MDCAT as he failed to avail the first chance of previous MDCAT---Validity---Petitioner had asserted that due to some unavoidable circumstances he could not appear in MDCAT held earlier while mentioning a date---MDCAT was not conducted on the date as mentioned by the petitioner---Record revealed that High Court had postponed the conduct of NTS, on date mentioned by the petitioner, on the notion that after promulgation of Pakistan Medical Commission Act, 2020 ('the PMC Act, 2020'), the MDCAT was to be organized and conducted under S.18 of PMC Act, 2020, by Pakistan Medical Commission and not by admitting university of the province under old law---Therefore, the contention of petitioner was misconceived that due to some unavoidable circumstances he could not appear earlier---PMC Act, 2020, had provided a proper mechanism for the registration of students/candidates for appearing in MDCAT with online registration facility and advertisement were also published in the newspapers---Previously High Court had extended the date for applying in previous MDCAT---Pakistan Medical Commission ('the Commission'), in previous MDCAT, had separated only 138 candidates due to their Covid-19 positive tests---MDCAT of only those candidates was to be held on the date, the petitioner sought permission to appear---No justification or plausible reason was presented by the petitioner for not applying in previous MDCAT within actual or extended time---Petitioner had filed the Constitutional petition after passing of reasonable time of said extended date to apply and after the date when previous MDCAT had been over---Once the cut-off date for filing applications had expired, directions/permission being sought could not be issued---Extending time for filing application forms after expiry of cut-off date would be bad precedent---Petitioner had failed to point out any plausible justification for not applying to appear in MDCAT within time when online application facility was also available---Constitutional petition was dismissed, in circumstances.

Ms. Sarwat Israr for Petitioner.

Zeeshan Abdullah for Respondent No.3 along with Samil Malik Khan.

Kamaluddin for Respondent No.4. along with Ali Akbar Siyal, Consultant for Respondent No.4.

Muneer Ahmed for NTS.

Jawad Dero, Addl. A.G.

2021 M L D 919

[Sindh]

Before Nazar Akbar, J

ABDUL HAMEED ASGHAR through Attorney---Petitioner

Versus

VTH ADDITIONAL DISTRICT JUDGE-EAST and another---Respondents

C.P. No.S-607 of 2019 in C.M.As. Nos.446, 447 of 2020 and 2403 of 2019, decided on 13th February, 2020.

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

----S.15---Constitution of Pakistan, Art.199---Civil Procedure Code (V of 1908), S.151---Trust Property---Eviction application---Personal bona fide need of an individual and not the trust---Effect---Rented premises being the property of a Trust, application for eviction was moved not in the name of Trust, instead by an individual (respondent) in his personal capacity---Petitioner/tenant filed two urgent applications under S.151, C.P.C., in main constitutional petition; one for recalling previous order and other for restitution of the property in question---Petitioner/tenant while invoking constitutional jurisdiction got interim (status-quo) order of suspension of the operation of the impugned orders passed by the two Courts below in favour of said individual/respondent---Respondent, while adopting delaying tactics in main constitutional petition , filed an (urgent) application under S.151, C.P.C., and maneuvered to get the status-quo orders recalled without notice to the petitioner/tenant ---Respondent got possession of demised property through the Executing Court under the cover that status-quo orders had been recalled by the High Court---Held, that respondent had not filed any counter affidavit to the two applications moved under S.151, C.P.C., by the petitioner/tenant, however, in the counter affidavit filed earlier in the main constitutional petition, respondent had confirmed the contention of the petitioner that the property-in-question belonged to the Trust and not to him---Record revealed that earlier permission for sale of the Trust property, including the tenement in dispute, was obtained by the Trust, which confirmed the fact that case had been filed by an incompetent person in his personal capacity---Before deciding the question of maintainability of case filed by the respondent ,High Court directed that its Nazir would immediately take over the property-in-question which was subject matter of present constitutional petition and the same would remain in his custody pending decision on main constitutional petition; that in case of demolishing/damaging of the tenement, no construction would be allowed on the subject property by anyone---Applications filed by the petitioner/tenant were disposed of accordingly.

S.M. Yahya for Petitioner.

2021 M L D 933

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Khadim Hussain Tunio, JJ

Dr. FATEH MUHAMMAD BURFAT and 2 others---Petitioners

Versus

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

Constitution Petitions Nos.D-3183, D-3206 of 2018, D-1874 and D-2380 of 2019, decided on 12th March, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Quashing of proceedings---Factual controversy---Petitioner was university employee who assailed news item published in press regarding his involvement in embezzlement of university funds---Validity---After publishing newspaper clipping no notice either from government or from Anti-Corruption Establishment was issued nor any F.I.R. was registered against petitioner---No illegal or coercive action was taken against petitioner who had no answer with him---Mere apprehension of causing arrest or any harassment on the basis of newspaper clipping could not be considered to be ground for maintaining constitutional petition for quashing of proceedings---Allegations fell within the ambit of disputed questions of facts and to prove such questions of fact it was necessary to record evidence and examination of record of university---Question of fact which required recording of evidence and examination of record, could not be gone into by High Court in exercise of Constitutional jurisdiction---Inquiry committee was constituted by competent authority to probe the allegations levelled against petitioner---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

PLD 2004 Kar 109; Sheikh Shahid Rafique v. The Registrar, Lahore High Court, Lahore through Registrar 2018 PLC (C.S) 1092; Muhammad Khaliq-ur-Rehman v. Secretary Housing Urban Development and Public Health Engineering Department and 2 others 2006 PLC (C.S.) 1320; Mian Muhammad Abdullah, District Manager, Government Transport Service, Lyallpur v. The Road Transport Corporation, Lahore through its Secretary and others PLD 1964 (W.P) Lahore 743; Narayana Rao v. State of Andhra Pradesh AIR 1958 Andhra Pradesh 836; Ghulam Rasool and others v. Crown PLD 1951 FC 62; Attique Ahmed Khan v. LESCO through Managing Director, PEPCO, WAPDA House, Lahore and 3 others 2010 PLC (C.S) 1322; Nisar Ahmed Kiyani v. Azad Government of the State Jammu and Kashmir and another 1992 PLC (C.S) 1135; Mian Muhammad Hayat, Superintendent Engineer v. Government of West Pakistan and another PLD 1964 (W.P) Lahore 264; Women Medical College, Abbotabad through Principal v. National Accountability Bureau (Khyber Pakhtunkhwa) through Director General and 2 others PLD 2016 Pesh. 92; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600 and C.P.No.D-392 of 2009 ref.

Rafique Ahmed Kalwar for Petitioner (in C.Ps. Nos.D-3183 of 2018, D-2380 of 2019 and for Respondent No.5 in C.P. No. D-1874 of 2019).

Shabeer Hussain Memo for Petitioners (in C.P. No.D-3206 of 2018).

K.B. Lutuf Ali Laghari for Petitioner (in C.P. No.D-1874 of 2019 and intervener in C.P. No.D-2380 of 2019).

Allah Bachayo Soomro, Additional Advocate-General, Sindh along with Jawad Karim AD (Legal) ACE Jamshoro on behalf of ACE Sindh.

Kamaluddin Advocate also appearing for Respondent No.5 (in C.P. No.D-1874 of 2019).

None present for Respondent No.1 (Federation of Pakistan) (in C.P. No.D-1874 of 2019).

2021 M L D 963

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Mrs. Rashida Asad, JJ

SARTAJ---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-69 of 2014 and Confirmation Case No.18 of 2014, decided on 17th September, 2020.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Accused was charged for committing murder of his wife/daughter of complainant---Complainant had deposed that the incident had occurred in his house at night time when his son-in-law/accused was sleeping with deceased wife in room---On some commotion, complainant party woke up and knocked the door---Complainant entered into the room by making hole in the roof of room and found his daughter lying dead---Eyewitness had deposed that on the relevant night, he was sleeping in the house of complainant and heard cries, went inside the room, where accused and his wife were sleeping and had seen that accused was killing his wife by way of strangulation---Third eyewitness had also deposed that he had seen the accused while killing his wife by means of strangulation---Ocular evidence was corroborated by medical evidence---All the eye-witnesses had deposed that accused was caught hold by them in the house of complainant when he was trying to run away---Complainant party caused him lathi blows---Accused was medically examined---Medical Officer had deposed that accused had sustained injuries---Prosecution, in circumstances, had succeeded to prove that accused had committed the murder of his wife on the night of incident by strangulation, however, the real cause of occurrence was something different which had been completely suppressed by both the parties and that real cause of occurrence remained shrouded in mystery---Such circumstances of the case were sufficient to caution in the matter of sentence of accused---High Court observed that life imprisonment would be the appropriate sentence instead of death sentence---Appeal against conviction was dismissed with said modification in sentence.

Raqib Khan v. The State and another 2000 SCMR 163; Ali Sher and others v. The State 2008 SCMR 707; Jalat Khan alias Jalo v. The State 2020 PCr.LJ 503; Ammar Yasir Ali v. The State 2013 PCr.LJ 783; Fazal Hussain alias Faqeera and others v. The State 2020 PCr.LJ 311; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Khalid Javed and another v. The State 2003 SCMR 1419 ref.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Motive was not proved---Scope---Accused was charged for committing murder of his wife/daughter of complainant---Motive as set up in the FIR was the refusal of deceased to accompany accused to his native city but it had not been proved at trial---Evidence of complainant and witnesses on motive was general in nature---No witness had heard conversation between husband and wife in room before incident---Evidence of the Investigating Officer reflected that no serious efforts were made by him to collect any evidence regarding the motive asserted by the complainant party---Specific motive set up by prosecution had indeed remained far from being established on the record---Evidence of complainant regarding motive that accused disclosed that he had committed the murder of his wife on her refusal to join him to his native city was not corroborated by some independent piece of evidence---Prosecution had also failed to prove as to why accused killed his young wife in the house of her parents---Real cause of occurrence in the house of complainant shrouded in mystery and was completely suppressed by both the parties---Unfortunately, Investigation Officer had also failed to interrogate/ investigate about motive for commission of the offence---Such circumstances of the case was sufficient to caution in the matter of sentence of accused---High Court observed that life imprisonment would be the appropriate sentence instead of death sentence in circumstances---Appeal against conviction was dismissed with said modification in sentence.

(c) Criminal trial---

----Motive was not proved---Scope---If the prosecution asserted a motive but failed to prove the same then failure on the part of prosecution might be reacted against the sentence of death passed against the convict on the charge of murder.

Mst. Nazia Anwar v. The State and others 2018 SCMR 911; Ahmad Nawaz v. The State 2011 SCMR 593; Iftikhar Mehmood and another v. Qaiser Iftikhar and others 2011 SCMR 1165; Muhammad Mumtaz v. The State and another 2012 SCMR 267; Muhammad Imran alias Asif v. The State 2013 SCMR 782; Sabir Hussain alias Sabri v. The State 2013 SCMR 1554; Zeeshan Afzal alias Shani and another v. The State and another 2013 SCMR 1602; Naveed alias Needu and others v. The State and others 2014 SCMR 1464; Muhammad Nadeern Waqas and another v. The State 2014 SCMR 1658; Muhammad Asif v. Muhammad Akhtar and others 2016 SCMR 2035; Qaddan and others v. The State 2017 SCMR 148 and Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 rel.

Zafar Ali Wighio for Appellant.

Shahzado Saleem Nahiyoo, D.P.G., along with Niaz Ali for the Complainant.

2021 M L D 997

[Sindh]

Before Fahim Ahmed Siddiqui, J

Syed WAQAR HAIDER---Applicant

Versus

The STATE through Prosecutor General Sindh---Respondent

Criminal Bail Application No.S-945 of 2019, decided on 31st July, 2019.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Interim pre-arrest bail, confirmation of---Further inquiry---Cheque which was encashed and the cheque for which F.I.R. was cancelled were successive in numbers, as such said fact created doubt and fortified the plea of duress and police pressure regarding issuance of cheque of present F.I.R---Plea of malice and ulterior motive raised on behalf of the accused bore the weight besides the case against the accused required further probe---Case of pre-arrest bail was made out in favour of the accused, as such the interim order was confirmed, in circumstances.

Sami Ahsan for Applicant along with Applicant present on interim pre-arrest bail.

Fazal-ur-Rehman for the Complainant.

2021 M L D 1009

[Sindh]

Before Aqeel Ahmed Abbasi and Mrs. Rashida Asad, JJ

Messrs MASOOMI ENTERPRISE PAKISTAN (PVT.) LTD. through Chief Executive /Director and 2 others---Appellants

Versus

Messrs PING TAN (FISHERY COMPANY) through Authorized Representative and 6 others---Respondents

High Court Appeal No.141 of 2020, decided on 2nd December, 2020.

(a) Suit for damages---

----Compensation for breach of contract where penalty stipulated for---Scope---Appellants assailed judgment passed by Single Judge of High Court whereby their claim for grant of liquidated damages was disallowed, however, special damages were granted---Validity---Evidence which was reckoned and considered cogent for grant of relief of recovery of one chunk of amount, out of same evidence, could not be distinguished and discarded for liquidated damages emanating from the decreed claim---Appellants were held entitled for liquidated damages and general damages---Appeal was allowed.

(b) Pleadings---

----He who alleges must prove and in case he fails to prove the issue, the presumption goes against him.

State Life Insurance Corporation of Pakistan through Chairman and 3 others v. Mst. Safia Begum 2001 CLC 408; Muhammad Akram alias Akan v. Mst. Pathani through Legal Heirs and 5 others 2001 MLD 1037 and Ruqiya Bibi v. Samiullah 2004 YLR 2607 rel.

Abid S. Zuberi for Appellants.

Nemo. for Respondents.

2021 M L D 1049

[Sindh]

Before Muhammad Faisal Kamal Alam, J

SECURITY ORGANIZING SYSTEM PAKISTAN (PVT.) LTD. through Chief Operating Officer---Plaintiff

Versus

NATIONAL BANK OF PAKISTAN through President and 6 others---Respondents

Suit No.826 of 2020, decided on 28th July, 2020.

Public Procurement Rules, 2004---

----R. 48---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration, permanent and mandatory injunction---Interim injunction, grant of---Scope---Plaintiff challenged rejection of its technical bid by the authorities and sought an interim injunction---Reasons advanced by authorities for rejection of technical bid were unsatisfactory past performance, existence of litigation and incapacity of plaintiff to handle Cash-in-Transit Service (CIT) due to sub-standard vehicles---Validity---No notice was issued to plaintiff for attending the meeting of Grievance Committee on the ground that no such requirement was mentioned under R.48 of Public Procurement Rules, 2004---Defence was meritless as the principles of natural justice had to be read in every statute---Plaintiff was still providing CIT service to authorities for its designated branches---Bidder could not be disqualified merely because he had litigated against a procuring agency---No report was available on record that the Armoured Vehicles of plaintiff were ever inspected---Argument of authorities that an interim relief sought was in the nature of final relief which could not be granted---High Court observed that the rule was not an absolute rule but there were exceptions to it; one such exception was that when undisputed record itself did not support the stance of defendant, particularly a procuring agency, and if refusal of interim injunction would frustrate the entire suit, then an interim injunction could be granted; secondly in such "Request For Proposal", transparency was one of the most significant factors which could be enforced through a judicial process and thirdly, if facts of the case warranted then interim relief was to be granted and not to be withheld only on the concept that it might amount to grant of final relief---Application for grant of interim injunction was allowed, in circumstances.

Messrs Quality Builders Ltd., Karachi v. Messrs J.P. Brockhoven V. v. Dreading Contractors, Karachi and 9 others PLD 1979 Kar. 668; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139; Aboo Noor Muhammad v. General Iron and Steel Works Ltd., Karachi PLD 1973 Kar. 234 and Gaggan Catering Service v. Balana Restaurant 2011 CLD 1774 ref.

Corporate Services v. Oil and Gas Development Company Ltd - PLD 2017 Isl. 115; Shahid Mahmood v. Karachi Electric Supply Corporation Ltd. 1997 CLC 1936 and Government of Pakistan through Ministry of Finance v. M.I. Cheema, Dy. Registrar, Federal Shariat Court and others 1992 SCMR 1852 rel.

Muneer A. Malik, Altamash Arab and Choudhry Atif Rafiq for Plaintiff.

Bilal Aziz Khilji, Assistant Attorney General for Defendant No.3.

Jam Asif Mehmood for Defendant No.1 along with Gohar Mehmood and Imran Khawaja.

2021 M L D 1059

[Sindh]

Before Muhammad Junaid Ghaffar, J

PAKISTAN AIRLINE PILOTS ASSOCIATION through Honorary General Secretary and 4 others---Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary for Ministry of Interior, Islamabad and another---Defendants

Suit No.538, C.M.As. Nos.4391 and 4437 of 2020, decided on 29th July, 2020.

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

----S.34---Stay of legal proceedings---Principle---Stay of proceedings is subject to the condition that applicant i.e. the party filing an application under S.34 of Arbitration Act, 1940, was at the time of proceedings commenced and still remains ready and willing to do all things necessary to the proper conduct of arbitration.

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

----Ss. 20 & 41--- Procedure and power of Court--- Scope--- Provisions of S.41 of Arbitration Act, 1940, are available to a party which itself is conceding to and willing to go for arbitration and not by way of suit for declaration under ordinary jurisdiction of Court--- Such provision, at the best be available to a party who has come before Court under S.20 of Arbitration Act, 1940, showing its willingness and readiness to go for arbitration and applies to Court for appointment of arbitrator pursuant to arbitration clause and at the same time seeks assistance of Court to exercise its discretion conferred under S.41 of Arbitration Act, 1940---Not that firstly a party to arbitration agreement files an ordinary suit for declaration and injunction and when defendant comes up with an application under S.34 of Arbitration Act, 1940, then a shelter could be sought under S.41 of Arbitration Act, 1940.

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

----Ss.39, 72 & 73---Agreement, termination of---Principle---Agreement cannot continue for life time or indefinite period--- If a party is unable to perform its part of agreement, then disability of such party itself results into termination of agreement.

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

----S.21---"Service agreement"---Enforcement of such agreement is barred under S.21 of Specific Relief Act, 1877.

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

----S. 41---Powers of Court--- Interim orders--- Arbitration proceedings--- Scope--- No jurisdiction and discretion under S.41 of Arbitration Act, 1940, has been conferred upon Court to pass interim orders--- Such proceedings are only applicable in respect of arbitration proceedings before Court--- Arbitration Act, 1940 is a special law and is a complete code in itself--- Use of words 'arbitration proceedings' were not to be so stretched to include all proceedings before the Court like an ordinary civil suit as well.

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

----Ss. 42 & 54--- Industrial Relations Act (X of 2012), Ss.3 & 19--- Arbitration Act (X of 1940), S. 34---Constitution of Pakistan, Art.17(1)---Suit for declaration and injunction---Stay of proceedings---"Service agreement"---Association of employees---Trade Union, role of---Plaintiff was an association of pilots who assailed notification issued by defendant Airline pertaining to terms and conditions of service of pilots---Plaintiff relied upon an agreement executed between the parties---Defendant Airline sought stay of proceedings to invoke arbitration clause in the agreement---Validity---Held, it was only to the extent that Airline was no more willing to treat plaintiff as a body, which could enter into negotiations with regard to working conditions of Airline pilots--- Defendant Airline did not dispute or derecognize any other independent and individual activity of plaintiff association according to their own Charter and Memorandum of Association--- Mere registration under Societies Act, 1925 did not create any statutory obligations on an employer to enter into negotiations in respect of terms and conditions of service of members of such society--- Industrial Relations Act, 2012, had specifically provided formation of Trade Union and election of Collective Bargaining Agent to a certain category of employees for which pilots stood disqualified--- Recourse to Societies Act, 1925 could not be equated or termed parallel for plaintiff Association to act as a representative body or a Collective Bargaining Agent with regard to terms and conditions of service of pilots--- What was not provided in law could not be read into it by other means--- Plaintiff might have a legal status as a society to act for betterment of its members but could not claim as a matter of right to be representative body or a Collective Bargaining Agent for negotiating terms and conditions of service of pilots in defendant Airline--- High Court stayed the proceedings of civil suit as there was an arbitration clause in agreement and termination of agreement fell within all disputes provided in the agreement and parties were to go for arbitration accordingly to agreed terms---Application was allowed, in circumstances.

Messrs Sunrise Textile Limited v. Messrs Tomen Corporation and 4 others 1994 CLC 2000; Messrs Franklin Credit and Investment Company Ltd. v. Export Processing Zones Authority and another 2016 MLD 952; Shah Muhammad v. Export Processing Zones Authority 2011 YLR 2413; Liaquat Ali Ghanghro v. Province of Sindh and another 2007 CLC 923; Karachi City Cricket Association, Karachi v. Mujeebur Rehman, Chairman, Ad Hoc Committee, Pakistan Cricket Board, Lahore and 2 others PLD 2003 Kar. 721; Civil Aviation Authority, Islamabad and others PLD 1997 SC 781; Union of Civil Aviation Employees, Lahore and another PLD 1993 Lah. 306; Government of N.W.F.P. v. I.A. Sherwani and another PLD 1994 SC 72; Shariq ul Haq and 5 others v. Pakistan International Airlines Corporation Limited and another 2018 PLC (C.S.) 975; Muhammad Mubeen us Salam and others v. Federation of Pakistan and others PLD 2006 SC 602; Imran Ahmed Khan v. Pakistan and another 2008 CLC 697; Shahid Khalil v. Pakistan International Airlines Corporation, Karachi 1971 SCMR 568; Shahid Khalil v. Messrs Pakistan International Airlines Corporation, Karachi PLD 1972 Kar. 477; A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748; Tarbela Joint Venture and Chief Camp Commandant v. Labour Appellate Tribunal NWFP and 2 others PLD 1975 Pesh. 240; M/s. Sui Southern Gas Company Limited v. Registrar of Trade Union and others (Civil Petition No.449 of 2010), K-Electric Limited and another v. Federation of Pakistan and others PLD 2014 Sindh 504; Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166; Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388; Shell Pakistan v. Ashiq Muhammad Malik 2006 PLC 477; Muhammad Yusuf Shah v. PIAC PLD 1981 SC 224; Muhammad Zaman v. Government of Pakistan 2017 SCMR 571; Democratic Workers Union CBA v. SBP 2002 PLC (C.S) 614; Pakistan Diploma Engineers Federation v. Federation of Pakistan 1987 CLC 2154; Pakistan Steel Re-Rolling Mills Association v. Province of West Pakistan PLD 1964 Lah. 138; Nisar Ahmed Khan v. Federation of Pakistan and others 1999 SCMR 1338; Messrs Khas Traders v. Registrar, Trade Union 1990 PLC 351; Civil Aviation Authority Islamabad and others v. Union of Civil Aviation Employees and another 1997 PLC 653; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Habib Bank Limited and 2 others v. National Industrial Relation Commission and others 1998 PLC 674; Husain Ali Chandio v. the Secretary Ministry of Communication Islamabad and 3 others 1992 SCMR 32; Islamic Republic of Pakistan v. M. Zaman Khan 1997 SCMR 1508; The Hub Power Company Limited and another v. Wapda and others PLD 2000 SC 841; Firm Karam Narain Daulat Ram and another v. Messrs Volkart Bros and another AIR (33) 1946 Lahore 116; Karachi Shipyard and Engineering Works Ltd. Karachi v. Messrs General Iron and Steel Works Ltd. PLD 1971 Kar. 501; Pakistan Burmah Shell Ltd. v. Tahir Ali 1983 CLC 2745; Island Textile Mills Ltd. Karachi v. V/O Techno Expert and another 1979 CLC 307; Lahore Stock Exchange Limited v. Fredrick J. Whyte Group (Pakistan) Ltd. and another PLD 1990 SC 48; Port Qasim Authority, Karachi v. Al-Ghurair Group of Companies and 3 others PLD 1997 Kar. 636; Messrs Sadat Business Group Ltd. v. Federation of Pakistan and another 2013 CLD 1451; Pakistan Mobile Communication Ltd. (Mobilink) Islamabad v. Naimatullah Achakzai and 3 others 2012 CLC 12; Hidayatullah and 10 others v. Shamimuddin and 14 others 1993 MLD 993; Messrs Haji Muhammad Ibrahim and Sons and others v. Karachi Municipal Corporation and others PLD 1960 (W.P.) Karachi 916; Pakistan Television Corporation v. M. Babar Zaman and others 1989 SCMR 1549; Haji Mojakkir Ali v. Regional Transport Authority , Sylhet and others PLD 1967 Dacca 6; The Punjab Miner's Labour Union v. The West Pakistan Industrial Development Corporation, Jhelum PLD 1972 Lah. 489; The Marriage Hall Association v. The Chairman, Central Board of Revenue Islamabad and 2 others 1998 CLC 33; Messrs Mutual Funds Association of Pakistan (MUFAP) v. Federation of Pakistan through Secretary, Ministry of Finance, Government of Pakistan and another 2010 PLC 306; Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary Ministry of Information Technology and Telecommunication and others 2012 SCMR 152; Karachi Pipe Mills Employees Union, Karachi v. Karachi Pipe Mills Ltd., Karachi 1992 SCMR 36; Muhammad Ali and 4 others v. Lahore Development Authority through Director-General and 4 others 2002 MLD 607; Pakistan v. Muhammad Ahsan 1991 SCMR 2180; Chief Commissioner, Karachi v. Jamil Ahmad and Municipal Commissioner Karachi PLD 1961 SC 145; Aurangzeb v. Gool Bani Dr. Burjor Ankalseria 2001 SCMR 909; All India Bank Employees' Association v. The National Industrial Tribunal (Bank Disputes), Bombay and others AIR 1962 SC 171; Dharam Dutt and others v. Union of India and others AIR 2004 SC 1295; Democratic Workers Union CBA v. SBP 2002 PLC (C.S) 614; A. Javaid, President, Pakistan International Airlines Corporation Employees' Union, Karachi v. National Industrial Relations Commission, Government of Pakistan, Islamabad through its Chairman and another PLD 1978 Kar. 64; Pakistan Television Corporation v. M. Babar Zaman and others 1989 SCMR 1549; Shashi Bhusan Basuri v. Moti Bala Dassi and others AIR 1945 Cal. 317; Sukumar Banerjee v. Dilip Kumar Sarkar and others AIR 1982 Cal. 17; Mst. Maroof Jan and 2 others v. Yaqoob and 4 others 1990 CLC 19; Muhammad Iqbal through L.Rs v. Mehmood Hasan and others 2016 MLD 1243; Allah Ditta v. Abdul Ghafoor 1992 MLD 1301; Zulfiqar Ali Khan and another v. District Government, Ghotki at Mirpur Mathelo and others 2006 CLC 20; Muhammad Hanif Khan v. Province of Sindh through Secretary, Land Utilization Department, Karachi and 8 others PLD 2006 Kar. 531; Managing Director, Century Textile Industries Limited v. Manju Gupta and others AIR 2009 MP 124; Ranjit Chandra Mitter v Union of India AIR 1963 Cal 594; Chedilal v. Brit Over Ltd., 52 CWN 45; MANU/WB/0198/1947; New Central Book Agency (Pvt.) Ltd. v. Madhusri Konar (MANU/WB/1467/2014; Resbird Technologies (Pvt.) Ltd. v. R.S. Travel and Tours (India) (Pvt.) Ltd. and others MANU/DE/1084/2018; Rajasthan Breweries Ltd. v. The Stroh Brewery Company AIR 2000 Delhi 450; Bank Alfalah Limited v. Neu Multiplex and Entertainment Square Company (Pvt.) Limited 2015 YLR 2141; Indian Oil Corporation Ltd. v. Amritsar Gas Service and others, (1991)1 SCC 533; Classic Motors Ltd. v. Messrs Maruti Udyog Ltd., MANU/DE/0586/1996 and Heyman v. Darwins Ltd. [H.L.(E) 1942 AC 350 ref.

Muhammad Ali Lakhani and Sohail Mujtaba Raja for Plaintiff.

Kashif Paracha, D.A.G. for Defendant No.1.

Jawad A. Sarwana along with Anees Ahmed for Defendant No.2.

2021 M L D 1106

[Sindh]

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

CIVIL AVIATION AUTHORITY ---Petitioner

Versus

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

Constitution Petition No.D-3704 of 2018, decided on 25th February, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Factual controversy---Scope---Petitioner sought in depth inquiry into alleged formation of survey numbers, allotments and leases of land, required a restraint in respect of construction upon ostensibly private property and sought resolution of prima facie disputed questions of title in respect whereof a civil suit was pending---Validity---Constitutional petition was devoid of any initial or subsequent requisite authorization; the matter pertaining to the immovable property under consideration was pending before the court of competent jurisdiction; no document was placed on record by the petitioner to lend an iota of credence to its claim---Prayer clause of the petition prima facie demonstrated that the petition was not maintainable as conflicting claims of factual nature could not be entertained in the exercise of constitutional jurisdiction of the High Court---Petitioner had remained unable to demonstrate any nexus with the land conveyed to the respondent---Petitioner had a private grievance with the respondent and had included the officials as respondents in an effort to seek the adjudication of its grievances before the court in exercise of its constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

2016 CLC 1; 2015 PLC 45; 2015 CLD 257; 2011 SCMR 1990; 2001 SCMR 574 and PLD 2001 SC 415 ref.

Muhammad Saddiq and another v. Ruqaya Khanum and others PLD 2001 Kar. 60 and AKD Investment Management Limited and others v. JS Investments Limited and others 2020 CLD 596 rel.

Khalid Mehmood Siddiqui for Petitioner.

Jawed Dero, Additional Advocate General for Respondents Nos.1 to 5.

Barrister Mohsin Shahwani for Respondent No.6.

2021 M L D 1120

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto, J

AKHTAR HUSSAIN---Applicant

Versus

S.H.O., POLICE STATION MAHI MAKOOL and another---Respondents

Criminal Miscellaneous Application No.S-185 of 2020, decided on 19th October, 2020.

Criminal Procedure Code (V of 1898)---

----Ss.22-A & 22-B---Ex-officio Justice of Peace, powers of---Exhaustive analysis of allegations---Scope---Applicant assailed order passed by Ex-officio Justice of Peace whereby his application under Ss.22-A & 22-B, Cr.P.C., was dismissed---Allegation of applicant was that he along with his mother and wife was present in his house; that the children of proposed accused entered into the house for catching the birds to which applicant restrained them and that the proposed accused along with others entered into the house and caused injuries to his mother and wife---Ex-officio Justice of Peace had refused to issue direction to SHO (Station House Officer) with the observations that the children of private parties were playing games together; that one of the child of proposed accused persons was available in the applicant's house and his mother had asked him to remove hanging clothes wire and then fasten it on another place; that while removing such wire, the wooden pipe had fallen upon the applicant's mother, to which, she sustained injury and that perhaps, the applicant was annoyed upon said child and had filed the application by making false story---Validity---Case was one of injury---SHO was under statutory duty under S.154, Cr.P.C., to record the information regarding commission of cognizable offence if any and to undertake investigation---Ex-officio Justice of Peace had fallen in error while undertaking an elaborate exercise through exhaustive analysis of allegations, thus, had transgressed far beyond his ministerial position---SHO was directed to record the statement of applicant under S.154, Cr.P.C---Application was allowed, in circumstances.

Zulfiqar Ali alias Dittu and another v. The State 1991 PCr.LJ 1125 and Abdul Rehman Malik v. Cynthia D. Ritchie, American National and others in Civil Petition No.2231 of 2020 rel.

Nooruddin Mahessar for Applicant.

Proposal accused present in person.

2021 M L D 1135

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Syed HAJAN SHAH---Petitioner

Versus

The STATE---Respondent

Criminal Accountability Appeal No.18 of 2017 along with C.P. No.D-5989 of 2019, decided on 6th October, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a)(vi) & 9(xi)---Misuse of authority and criminal breach of trust---Appreciation of evidence--- Audit report---Accused was Project Director who was convicted by Trial Court for causing loss and misuse of his authority and was sentenced to imprisonment for ten years along with fine--- Validity--- At the time of grant of leases to non-shifting card holders accused was Project Director of 4 shops, 9 show rooms and 21 wall fixtures and disposed of the same on lease in violation of existing laws without public auction or publication---Audit report showed that the shops, show rooms and wall fixtures were leased out at much less than market value in order to favour new lessees through his misuse of authority and criminal breach of trust as he was holding such shops, show rooms and wall fixtures on trust--- High Court declined to interfere in conviction awarded to accused by Trial Court as prosecution had proved its case beyond reasonable doubt against accused, however, reduced the sentence from imprisonment for ten years to seven years while fine was maintained--- Appeal was dismissed, in circumstances.

Abdul Karim Nausherwani and another v. The State through Chief Ehtesab Commissioner 2015 SCMR 397; Ghulam Muhammad Memon and 3 others v. The State and another 2012 PCr.LJ 1677; Mansur-ul-Haque v. Government of Pakistan PLD 2008 SC 166; The State through NAB, Islamabad v. Commodore (R.) Mirza Ashfaq Baig and another (Criminal Petitions Nos. 164 and 165 of 2004); The State and others v. M. Idrees Ghauri and others 2008 SCMR 1118; Dr. Farooq Sattar v. The State and others PLD 2002 Lah. 95; M. Siddique-ul-Farooq v. The State PLD 2002 Kar. 24 and Muhammad Hayat and 2 others v. The State PLD 2002 Pesh. 118 ref.

Muhammed Juman v. State 2018 SCMR 318 rel.

Shahab Sarki and Ahmed Raza Shah for Petitioner.

R.D. Kalhoro, Special Prosecutor NAB assisted by the I.O. Waliullah for the State.

2021 M L D 1158

[Sindh]

Before Muhammad Shafi Siddiqui and Mrs. Kausar Sultana Hussain, JJ

Mst. ABIDA BEGUM---Petitioner

Versus

Late FAZLUR REHMAN and 5 others---Respondents

C.P. No.D-4583 of 2019, decided on 9th October, 2020.

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

----O.XVII, R.3---Closing of right to produce evidence---Principle---Evidence of a party cannot be closed under O.XVII, R.3, C.P.C. for non-production of evidence where case on previous date was not adjourned at the request of that party--- For applying provision of O.XVII R.3, C.P.C., conditions to co-exist were (i) Adjournment must have been granted to the party at his request; (ii) It must have been granted to it for the purposes mentioned in O. XVII, R.3, C.P.C.; (iii) Party who has taken time defaulted in doing the act for which he took time from Court; (iv) Party must be present or deemed to be present before Court; (v) There must be some material on record for decision of case on merits; and (vi) Court must decide suit forthwith that is within a reasonable time.

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

----O.XVII, R.3---Restoration of suit---Failure to produce evidence---Suit filed by plaintiff/respondent was dismissed on his failure to produce evidence despite seeking several opportunities---Trial Court on application filed by plaintiff/respondent restored the suit and Lower Appellate Court declined to interfere in the order of restoration---Validity---When suit was at a preliminary stage and there was not enough material on record for a decision forthwith, Trial Court could not have dismissed the suit under O.XVII, R.3, C.P.C.---Valuable right of plaintiff/respondent was involved in the suit and the same could not be allowed to be defeated in law on mere technical point---Court was to avoid technicalities in deciding dispute between parties and was to adhere to merits of the case---High Court declined to interfere in the matter as both the Courts below did not commit any material irregularity or illegality---Constitutional petition was dismissed in circumstances.

President, All Pakistan Women Association, Peshawar Cantt v. Muhammad Akbar Awan 2020 SCMR 260; Chief Executive MEPCO and others v. Muhammad Fazil and others 2019 SCMR 919; Muhammad Baqir v. Mst. Ghulam Parwar 2017 SCMR 1062; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Contempt proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752; Haji Muhammad Zaman Khan v. Member BOR Punjab, Lahore and others 2013 SCMR 1595; Messrs Anwar Textile Mills Ltd. v. Pakistan Telecommunication Company Ltd. and others 2013 SCMR 1570; Anjuman Fruit Arhtian others v. Deputy Commissioner, Faisalabad and others 2011 SCMR 279 and Mst. Suraya Parveen v. Mst. Rukhsana Hanif and others 2012 SCMR 656 ref.

Muhammad Anwar Tariq for Petitioner.

Pervez Iqbal for Respondent No.1.

Khurram Ghayas for Respondent No.2.

2021 M L D 1176

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh, J

MEER HASSAN LEGHARI---Applicant

Versus

The STATE---Respondent

1st Criminal Bail Applications Nos.S-423 and S-577 of 2018, decided on 14th November, 2019.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 148 & 149---Qatil-i-amd, rioting armed with deadly weapon, unlawful assembly---Bail, refusal of---Accused was charged that he along with his co-accused duly armed with deadly weapon committed murder of the uncle of the complainant by firing---Record showed that specific role of firing at deceased was attributed to accused, which hit deceased---Medical evidence was in line with the ocular account, as the post-mortem report reflected that deceased had firearm injuries on his vital parts of body i.e. his left eye and head and his entire mouth was broken into pieces---Recovery of empties form the place of occurrence was effected and vehicle used in the commission of offence by the accused was also recovered---Earlier, bail applications of both the accused were dismissed on merits by the Trial Court but they did not challenge that order and then both of them repeated their second bail applications separately before the Trial Court without any fresh ground---Even, the fact of dismissal of bail application on merits earlier filed by accused had not been mentioned in the certificate annexed to the bail application, which was against the directions of the Supreme Court---After framing of charge complainant and prosecution witnesses repeatedly appeared before the Trial Court, but the matter was adjourned time and again due to absence of counsel for the accused---Accused were not entitled to the grant of concession of bail in such peculiar circumstances---Bail applications were dismissed accordingly.

Nazir Ahmed v. The State PLD 2014 SC 241 rel.

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

----S.497---Bail---Tentative assessment---Scope---Observations, if any, made in the bail order were tentative in nature only for the purpose of deciding bail applications, which shall not, in any manner, influence the Trial Court at the time of final decision of the case.

Safdar Ali G. Bhutto for Applicant (in Criminal Bail Application No.S-423 of 2018).

Jehangir Rahujo for Application (in Criminal Bail Application No.S-577 of 2018).

Athar Abbas Solangi for the Complainant.

Aitbar Ali Bullo, DPG for the State.

2021 M L D 1184

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui and Khadim Hussain Tunio, JJ

SALEEM and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.D-97, D-104 of 2018, C.P. No.1599 of 2018, decided on 25th August, 2020.

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

----Ss. 376(2) & 506(2)---Anti-Terrorism Act (XXVII of 1997), S.7---Rape, criminal intimidation, act of terrorism---Appreciation of evidence---Benefit of doubt---Chance witness---Scope---Allegation against the accused was that he committed rape with the niece of complainant---Record showed that the incident was night time incident---Complainant party deposed that they were passing by the area when they heard the cries of the victim and when they reached near, they had witnessed the incident, undoubtedly, that made them witnesses by chance---Testimonies of complainant party were merely word of mouth and had no independent corroboration---Circumstances established that prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Haider Ali and others v. The State 2016 SCMR 1554; PLD 2011 SC 554; 1993 SCMR 550; 2017 PCr.LJ 244; PLD 1995 Lah. 229; 2010 PCr.LJ 1156 and 1995 SCMR 1345 ref.

Mst. Anwar Begum v. Akhtar Hussain alias Kaka 2017 SCMR 1710 rel.

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

----Ss. 376(2) & 506(2)---Anti-Terrorism Act (XXVII of 1997), S.7---Rape, criminal intimidation, act of terrorism---Appreciation of evidence---Benefit of doubt---Medical evidence was not in line with the ocular account---Scope---Allegation against the accused was that he committed rape with the niece of complainant, Medical evidence was not in line with the ocular account---Record showed that the victim was not produced in court to testify against her assailants nor was she produced before the police to identify her assailants there---Per depositions of a witness, the victim was fit was of sound mind, however, she could not talk frequently---Medical Officer in her examination-in-chief had deposed that the victim was talking at the time of her examination---Such depositions suggested that the victim was very much capable of talking for herself as she had even disclosed her name by herself before the lady doctor, so admitted in her deposition---Complainant also deposed that she had positively stated on the place of scene that she was collectively being raped by all the accused---Prosecution witnesses even deposed that she was actively able to identify her parents and relatives---Such a person could be called sane and able to depose against assailant and the prosecution's excuse that she was unfit to depose did not sit well with the court---Appeal against conviction was allowed, in circumstances.

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

----Ss. 376(2) & 506(2)---Anti-Terrorism Act (XXVII of 1997), S. 7---Rape, criminal intimidation, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of about seven days in conducting medical examination of victim---Scope---Allegation against the accused was that he committed rape with the niece of complainant---Nevertheless, the victim was produced before the medical examiner after almost seven days and was wearing fresh clothes---Prosecution had failed to provide a justification for such delay besides the excuse that the decision was placed before the Nekmards of their community for judgment, however, the said Nekmard was not even examined before the court---Clothing articles of the victim were given to the police after a delay of seven days---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 376(2) & 506(2)---Anti-Terrorism Act (XXVII of 1997), S. 7---Rape, criminal intimidation, act of terrorism---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Allegation against the accused was that he committed rape with the niece of complainant---Record showed that no marks of semen were found on the clothing nor were the same saved for the Chemical Examiner---At the time of the medical examination of the victim, vaginal swab was not taken to ascertain if indeed the crime had been committed in the manner so disclosed by the witnesses---Rope with which the victim was allegedly tied was also not recovered nor was the lightbulb on which the accused were identified by the complainant party as shown in the site plan---No marks of violence were found on the body of the victim which would have suggested use of force against the victim---No medical evidence was available in the case that would connect the accused with the commission of rape, which the victim allegedly went through---No semen sample was taken from the clothing of the victim nor any DNA tests were conducted to ascertain the claims of the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Haider Ali and others v. The State 2076 SCMR 1554; Saira Bibi v. Muhammad Asif 2009 SCMR 946 and Muhammad Javed v. The State 2019 SCMR 1920 rel.

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

----Ss. 376(2) & 506(2)---Qanun-e-Shahadat (10 of 1984), Art. 22---Anti-Terrorism Act (XXVII of 1997), S. 7---Rape, criminal intimidation, act of terrorism---Appreciation of evidence---Test identification parade---Scope---Allegation against the accused was that he committed rape with the niece of complainant---No test identification parade was conducted either to ascertain that the accused were indeed the ones who had committed rape with the victim---Appeal against conviction was allowed, in circumstances.

(f) 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 the accused.

Ghulam Shabir Dayo for Appellant (in Criminal Appeal No.D-97 of 2018).

Haji Shamsuddin Rajpar for Appellant (in Criminal Appeal No.D-104 of 2018).

Shabir Ali Bozdar for the Complainant.

Sardar Ali Shah Rizvi, Deputy Prosecutor General.

2021 M L D 1200

[Sindh (Sukkur Bench)]

Before Khadim Hussain Tunio, J

GHULAM HYDER----Appellant

Versus

The STATE----Respondent

Criminal Jail Appeal No.S-199 of 2016, decided on 12th October, 2020.

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

----Ss.302, 377, 114 & 34---Criminal Procedure Code (V of 1898), S.342---Qatl-i-amd, sodomy, abetment, common intention---Appreciation of evidence---Defence plea---Prosecution case was that son of complainant had been done to death by the accused by setting him on fire after committing sodomy---Record showed that the accused had been arrested promptly and he himself was also found to be in burnt condition---During his statement under S.342, Cr.P.C., accused did not dispute his presence on the place of incident, however raised the defence plea that he was trying to save the deceased which resulted in his being burnt as well---Allegedly, accused also informed the complainant of the incident who malafidely blackmailed him with threats of a false case in his name if he didn't pay the complainant any money---Complainant, in that regard, failed to examine any defence witnesses or produced any other evidence---Accused also failed to disclose the amount that the complainant allegedly asked for him to pay or as to how he tried saving the deceased---Such facts rendered the defence plea of accused as baseless and was of no help to his case---Appeal against conviction was dismissed, in circumstances.

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

----Ss.302, 377, 114 & 34---Qatl-i-amd, sodomy, abetment, common intention---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Prosecution case was that the son of complainant had been done to death by the accused by setting him on fire after committing sodomy---In the present case, the depositions were made after a total of five years, which would justify such minor lapses---High Court observed that it was not uncommon that a cross-examiner put words in the mouth of a witness and the presiding officer was not vigilant to check it---Defence could not point out any material discrepancy in the evidence of the eye-witnesses, besides few minor ones including the distance from which the complainant party had heard the cries of the deceased, i.e. two acres or two kilometres---Said contradictions were very minor in nature and any discrepancy in the establishment of the said facts would not cause any effect to the fact that it was in fact the accused, who had set the deceased on fire---Appeal against conviction was dismissed, in circumstances.

(c) Criminal trial---

----Statement---Minor contradictions---Scope---Minor contradictions were not to be given undue emphasis and the evidence was to be considered from the point of view of trustworthiness.

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

----Ss.302, 377, 114 & 34---Qatl-i-amd, sodomy, abetment, common intention---Appreciation of evidence---Related and interested witnesses---Scope---Prosecution case was that the son of complainant had been done to death by the accused by setting him on fire after committing sodomy---Contention of the defence regarding the prosecution witnesses being related to the complainant inter se and interested was of no consequence nor did it held any legal worth---Despite close relationship of complainant and witnesses with the deceased, their evidence after careful consideration was found trustworthy---Mere relationship with the deceased was no ground to discard trustworthy evidence---Even then, the deceased was set ablaze in the presence of his father and other close relatives and it was unusual for them to set free---Appeal was dismissed, in circumstances.

Raqib Khan v. The State 2000 SCMR 163; Nasir Iqbal Nasra and another v. The State 2016 SCMR 2152; Allah Ditta v. The State PLD 2002 SC 52 and Islam Sharif v. The State 2020 SCMR 690 ref.

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

----Ss.302, 377, 114 & 34---Qatl-i-amd, sodomy, abetment, common intention---Appreciation of evidence---Prosecution case was that the son of complainant had been done to death by the accused by setting him on fire after committing sodomy---In the present case, the evidence of the complainant and other witness was consistent, straight forward, confidence inspiring and trustworthy enough and their presence at the time of incident had been explained---Evidence of the complainant and a witness alone was sufficient to hold the accused guilty of the charge---Post-mortem of the dead body was conducted which found injuries that coincided with the statements of eye-witnesses---Several articles including anal/rectal swabs were sent to the Chemical Examiner who, per report, detected human sperm and blood in the anal cavity swab of the dead body, which further reaffirmed the claim of sodomy against the accused---Case of the prosecution was firmly structured on ocular account, furnished by the witnesses, viewed from any angle, natural and trust-worthy---Duration of the injury coincided with the fatality that befell the deceased---Wounds on the person of deceased were consistent with the weapon used i.e. petrol canister---Witnesses were in comfortable unison on all the salient aspects of the incident as well as detailed collateral therewith---Cross-examination remained inconsequential inasmuch as nothing adverse could be solicited from the witnesses except for a volley of suggestions, vehemently denied---Said various pieces of evidence were inexorably pointing to the accused with no space to entertain any hypothesis of innocence or substitution---Appeal against conviction was dismissed, in circumstances.

Elahi Baksh and others v. The State and others 2005 SCMR 810; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120; Muhammad Ali alias Faisal v. The State 2014 PCr.LJ 669; Zafar Iqbal alias Kodu v. The State and another 2017 YLR 648; Shahid alias Punjabi v. The State PLD 2017 Sindh 717; Muhammad Wali Shah and another v. The State and another 2017 PCr.LJ 779; Gulzar Ahmed v. The State 2002 SCMR 596; Khizar Ilayat v. The State 2011 SCMR 429; Zulfiqar Ahmed and another v. The State 2011 SCMR 492; Niazuddin and another v. The State and another 2011 SCMR 725; Malik Aqeel Ahmed v. The State 2016 MLD 129 and Sajid Javed and others v. Additional Sessions Judge (West) Islamabad and others 2016 PCr.LJ 672 ref.

Niazuddin and another v. The State and another 2011 SCMR 725 and Aamir Hanif and another v. The State and others 2020 SCMR 675 rel.

Iftikhar Ali Arain for Appellant.

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

Yasir Arafat Mahar for the Complainant.

2021 M L D 1215

[Sindh]

Before Muhammad Ali Mazhar and Yousuf Ali Sayeed, JJ

QURATULAIN IBRAHIM ARAIN---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary Health and 4 others---Respondents

Constitution Petition No.D-2939 of 2019, decided on 7th December, 2020.

Constitution of Pakistan---

----Arts.25 & 199---Constitutional petition---Educational Institution---Discrimination---Reasonable classification---Petitioner was admitted to Masters in Advanced Physical Therapy Program who failed to complete within specified time and her enrolment was cancelled---Plea raised by petitioner was that duration was extended to other candidates and she had been discriminated---Validity---Case of petitioner and other similarly placed students did not qualify for an extension in enrolment, as volume of work undertaken by them up till them did not commensurate to that of the students whose cases merited extension and formed a separate class---Cases of students in distinct classes were not co-relatable---No case of discrimination was made out as there was no allegation or indication of any relaxation having been extended to any person in the same category as the petitioner---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Zeeshan Javed v. Province of Sindh 2019 MLD 368; Abdul Haleem Siddiqui v. Federation of Pakistan 2019 PLC (C.S.) 238 and Dr. Nauman Muhammad Khan v. CA&DD 2019 MLD 97 distinguished.

Amar Naseer for Petitioner.

Shehryar Mehar, AAG for Respondent No.1.

Wasiq Mirza along with Professor Saba Suhail, Principal, School of Post Graduate and Medical Sciences, DUHS for Respondent No.3.

2021 M L D 1230

[Sindh]

Before Nadeem Akhtar and Aftab Ahmed Gorar, JJ

S.M.E. LEASING LIMITED----Appellant

Versus

Messrs HILTON PAKISTAN (PVT.) LTD.and 4 others----Respondents

First Appeal No.08 of 2011, decided on 3rd October, 2013.\

Civil Procedure Code (V of 1908)---

----O.XXI, R. 58---Investigation of claims to, and objections to attachment of, attached property---Scope---Appellant assailed the order passed by Executing Court whereby the objector's/respondent's application under O.XXI, R.58, C.P.C., was allowed and the attachment order was recalled---Held, that both respondent and judgment-debtor were holding original indenture of lease in respect of the property---Respondent had produced the registered power of attorney executed by judgment-debtor as well as the registered sale deed executed by her attorney in his favour---Perusal of impugned order showed that during investigation of the claim/objections of respondent, when Sub-Registrar was being examined, it did not come on record through him as to which of the indentures of lease was genuine and whether or not the purported power of attorney executed by judgment-debtor was genuine and registered---Claim/objections of respondent could not be decided completely and effectually without ascertaining the genuineness of said documents---Impugned order was set aside and the matter was remanded to the Executing Court for deciding the application afresh---Appeal was disposed of accordingly.

Abdul Shakoor for Appellant.

Respondent No.1 (called absent).

Respondent No.2 (called absent).

Respondent No.3 (called absent).

For Respondent No.4 (called absent).

Khaleeq Ahmed for Respondent No.5.

2021 M L D 1243

[Sindh]

Before Nadeem Akhtar, J

SHOUKUT ALI----Plaintiff

Versus

KARACHI METROPOLITAN CORPORATION through Administrator and another----Defendants

Suit No.928 of 2001, decided on 30th November, 2012.\

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.XIV, R.1---Suit for declaration, injunction and damages---Issue, non-framing of---Effect---Plaintiff asserted that authorities with mala fide intention issued notices of encroachment of land and demolished boundary wall of his house---Validity---Plaintiff, in addition to prayers for declaration and injunction, claimed damages against authorities---Although no issue regarding claim of damages was framed in the suit but parties were fully aware about subject matter of the controversy, pleadings and evidence which was to be led by each side---Non-framing of specific issue regarding plaintiff's claim for damages, was inconsequential---Construction of suit property was within the leased area and road in front of suit property was not encroached upon by any part of suit property or by its boundary wall---Notice issued by authorities was mala fide, discriminatory, of no legal effect and was hit by estoppel---High Court restrained the authorities or any other person acting directly or indirectly through them from demolishing or disturbing any part of suit property, including boundary wall---High Court further restrained the authorities from taking any type of coercive action in respect of suit property---High Court directed the authorities to pay a sum of Rs.1,000,000/- to plaintiff as damages---Suit was decreed accordingly.

Malik Safdar Ali Khan and another v. Public-at-Large and others, 2004 SCMR 1219; Eda Khan v. Mst. Ghanwar and others, 2004 SCMR 1524 and Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 ref.

Khilji Bilal Aziz for Plaintiff.

Qaisar Jameel for Defendants Nos.1 and 2.

2021 M L D 1258

[Sindh]

Before Nadeem Akhtar and Mrs. Kausar Sultana Hussain, JJ

NATIONAL LOGISTIC CELL (NLC)---Appellant

Versus

ABDUL-E-RASOOL ADAT and another---Respondents

High Court Appeal No.133 of 2005, decided on 3rd January, 2019.\

Specific Relief Act (I of 1877)---

----Ss.9 & 42---Suit for declaration, possession, compensation and damages---Appellant assailed judgment and decree passed by Single Judge in a suit for declaration, possession, compensation and damages filed by respondent---Case of respondent was that the appellant trespassed upon and illegally took over possession of his property which was still in his name and when he issued several letters to the appellant to restore his possession, the appellant disputed his ownership and insisted that the suit property was acquired for public purpose---Validity---Originals of all the relevant documents in respect of the suit property were produced by respondent in his examination-in-chief---Such documents, inter alia, were registered sale deed in his favour, mutation in his favour in Village Form, verification of his ownership by the Mukhtiarkar concerned, legal notice sent to the appellant and its reply---Such material documents were exhibited without any objection, whatsoever, from the appellant---Burden to prove the issues was successfully discharged by him; and, thereafter the burden had shifted upon the appellant, but it had failed in discharging such burden---Appellant had not only failed to cross-examine the respondent but had also failed to lead any evidence, whatsoever, in its rebuttal---No illegality or infirmity was found in impugned judgment---Appeal was dismissed, in circumstances.

Raza Enterprises v. The Assistant Commissioner and others 2001 CLC 1808 and The Commanding Officer, National Logistic Cell and another v. Raza Enterprises and others 2003 CLC 719 ref.

Abdul Hameed for Appellant.

Respondent No.1 (called absent).

Respondent No.2 (called absent).

2021 M L D 1298

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD NAVEED and 2 others---Petitioners

Versus

VIIIth ADDITIONAL DISTRICT JUDGE, KARACHI SOUTH and 2 others---Respondents

Constitution Petition No.S-1223 of 2017, decided on 18th March, 2021.

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

----S.13---Eviction petition---Default in payment of rent---Scope---Petitioners/tenants assailed acceptance of eviction petition of landlord by the courts below on the ground of default in payment of rent---Case of landlord was that the tenants had failed to pay the rent for the month of March and April 2004 while the tenants had produced money order receipts in which they themselves had written that they were sending rent for 6 months from May 2004 to October 2004---Validity---Held, prima facie, no illegality existed in the concurrent findings of the two courts below while answering the question of default because legally the tenant could not take an exception to his obligation in payment of the rent in the manner as provided by law or as agreed between the parties---Tenant had failed to make out a case for interference into concurrent findings of two courts below, hence constitutional jurisdiction of High Court could not be exercised which, otherwise, was not only limited but could only be exercised in exceptional circumstances which were lacking---Constitutional petition was dismissed.

PLD 1980 SC 298; 2005 CLC 3; PLD 1990 SC 681; 2001 SCMR 1888; 1991 MLD 1393; 2012 SCMR 177; PLD 2008 Kar. 205; PLD 1990 SC 389; 1987 SCMR 1313; 1998 MLD 903; 1993 SCMR 207; 1993 MLD 1817; 2006 SCMR 1872; 1999 MLD 3312; 1995 CLC 1351; 1994 SCMR 1900; 2008 YLR 10; 2015 CLC 310; 2017 CLC 656; 2017 CLC 112; 1985 CLC 34; 1990 CLC 1324 and 1983 CLC 1451 ref.

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

----S.13---Eviction petition---Default in payment of rent---Scope---Held, it shall always be the duty of the tenant to pay or at least tender the rent to the landlord and he cannot be allowed to plead that the landlord did not make any effort to collect the rent---Mere fact that a tenant has made it a habit not to pay the rent unless the landlord comes and collects it, does not absolve him from paying the rent every month.

Muhammad Amin Lasaia v. M/s Ilyas Marine and Associates and others PLD 2015 SC 33 ref.

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

----S.13---Eviction petition---Default in payment of rent---Burden of proof---Scope---Burden of establishing the timely payment of rent is upon the tenant which, if he fails, has to face consequences.

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

----S.13---Eviction petition---Default in payment of rent---Scope---Where there is no denial to existence of relationship of landlord and tenant between the parties, the claim is to be accepted once landlord states on oath and same goes un-shattered in cross-examination.

Pakistan Institute of International Affairs v. Naveed Merchant and others 2012 SCMR 1498 rel.

(e) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Writ of certiorari---Scope---Jurisdiction under Art.199 of the Constitution cannot be invoked as a substitute of another appeal against the order of the appellate court---Mere fact that upon perusal of evidence there exists possibility of a different view would never be sufficient to assail concurrent findings.

Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 ref.

Azizullah Kumbhar for Petitioner No.1.

Abdul Qadir Khan along with Ms. Shabana and Aftab Ali for Petitioners Nos.2 and 3.

Muhammad Ilyas Khan Tanoli Respondent No.3.

2021 M L D 1322

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

ALAM and another---Applicants

Versus

NIAZ MUHAMMAD and 4 others---Respondents

R.A. No.S-203 of 2006, decided on 26th April, 2019.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Plaintiff filed suit claiming therein that the Forest Department had secretly leased out the suit property to the private defendants; that notice of auction, if any, published in newspaper did not mention details of land showing mala fide intention; and that valuable land of Government was shown as leased out---Trial Court rejected the plaint whereas Appellate Court remanded the matter to the Trial Court with directions to frame legal and factual issues in the suit and decide the same on merits---Held, that subject land was a forest land of the Government and the plaintiff and defendant had no vested right or title over the same---Trial Court without allowing the parties to lead their evidence for and against their respective claims had rejected the plaint and had given its findings in favour of the defendants without any evidence and without realizing the fact that the Government interest was involved in the subject suit---Official defendants were not given proper opportunity to file their written statements---Written statement filed by private defendants had given rise to various issues including the issue relating to action of the official defendants being illegal, void and without lawful authority---Impugned order did not call for any interference---Revision petition was dismissed, in circumstances.

Nemo for Applicants.

Nemo for Respondent No.1.

Wali Muhammad Jamari, Assistant Advocate General for Respondents Nos.2 to 5.

2021 M L D 1336

[Sindh]

Before Nadeem Akhtar, J

FAWAD FAZAL---Plaintiff

Versus

HABIB BANK LIMITED and 11 others---Defendants

Suit No.1397 of 2010, decided on 11th March, 2016.\

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

----Rr. 15 & 159---Civil Procedure Code (V of 1908), O.VIII, R.1.---Suit for specific performance of agreement to sell and injunction---Written statement---Failure to file within time---Despite repeated opportunity awarded to defendants, they failed to file written statement therefore they were debarred from filing the same---Validity---Because of failure on the part of defendants to file written statement within time, a valuable right had accrued in favour of plaintiff---Right accrued to a party in judicial proceedings because of default committed by other party could not be taken away lightly---No cogent or valid justification, explanation, reasons or grounds were disclosed by defendants for such default or delay---Division Bench of High Court had given directions and the same could not be ignored and Single Judge of High Court who was to decide the suit expeditiously within six months; there was a limit of granting time to defendants for filing written statement and they could not be allowed indefinite time to file written statement according to their own will or convenience---Application was dismissed, in circumstances.

Mst. Samina Sohail v. Humaid Naseer Al-Owais and 2 others 1989 CLC 1949; Mrs. Naheed and 2 others v. Mrs. Nafisa Khatoon and another 1990 CLC 1078; I.B.M. SEMEA SPA Ltd. v. EGS (Pvt.) Ltd., 1998 CLC 1399; Raja Rahmat Khan v. Muhammad Aamir Tastee and 2 others 2015 YLR 2220; Mst. Hukumat Bibi v. Imam Din and others PLD 1987 SC 22; Azad Hussain v. Haji Muhammad Hussain PLD 1994 SC 874; Allah Bakhsh v. Additional District Judge-I, D. I. Khan and 2 others 2005 CLC 1422; Societe Des Produits Nestle S.A. through Vice-President v. Rafiqua Sweets through Proprietor and 4 others 2000 CLC 1045; Abdul Rehman v. Pervez Ahmed Butt and 2 others PLD 1982 Kar. 458, and Laique Ahmad Siddiqui v. The Federation of Pakistan PLD 1957 (W.P) Kar. 54 ref.

Salahuddin Ahmed for Plaintiff.

Khalid Jawed Khan for Defendants Nos.1 to 8 and 11.

2021 M L D 1351

[Sindh (Hyderabad Bench)]

Before Abdul Malik Gaddi and Khadim Hussain Tunio, JJ

ASSADULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-108 of 2018, decided on 3rd March, 2020.

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

----S.9(c)---Possession of 08 kilograms of charas and 15 kilograms of heroin powder---Appreciation of evidence---Prosecution case was that 08 kilograms of charas and 15 kilograms of heroin powder were recovered from the Rickshaw driven by accused---Prosecution produced four witnesses in order to prove the charge against the accused---Record showed that the evidence of said witnesses had constituted an uninterrupted chain of facts ranging from seizure and forensic analysis of the contraband---Witnesses were in comfortable unison and all the salient features regarding interception of the huge quantity of chars as well as steps taken subsequently---Separation of samples for chemical analysis taken from each bundle was found as exercise sufficient to constitute forensic proof---At the time of arrest, the accused was driving the Rickshaw, thus, he was responsible for transportation of narcotics alleged to have been recovered from his possession---Report of Chemical Examiner had corroborated the evidence of all the Police Officials, who had stood in juxtaposition with the chemical report---Record showed that charas was recovered from the exclusive possession of the accused while he was present in Rickshaw and the recovered property was sent to the Chemical Examiner for analysis did not find any tampering with the sealed parcels of sample of the contraband so recovered from the accused, hence, the report of Chemical Examiner came positively---Minor discrepancies in the evidence of raiding party did not shake their trustworthiness---Admittedly, the accused was arrested by the police and from his possession a huge quantity of charas and heroin was recovered and it would be enough for a person of prudent mind as to how such a huge quantity of contraband, the cost whereof would be in million of rupees, could be foisted upon the accused---Said argument did not have any sanctity as the property viz. heroin and chars so recovered from the accused had been proved adequately by examining the evidence of Mashir, who appeared to have remained in corroboration with the Chemical Examiner's report---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

State/ANF v. Muhammad Arshad 2017 SCMR 283; Shazia Bibi v. The State 2020 SCMR 460 and Izzat Ullah and another v. The State 2019 SCMR 1975 rel.

(b) Criminal trial---

----Police witnesses---Scope---Police Officials were as good witnesses as any other private witness and their evidence was subject to same standard of proof and the principles of the scrutiny as applicable to any other category of witnesses---In absence of any animus, infirmity or flaw in their evidence, their testimony could be relied without demur.

Hussain Shah and others v. The State PLD 2020 SC 132 and Mushtaq Ahmed v. The State and another 2020 SCMR 474 rel.

Saddam Hussain and Shahnaz Buriro for Appellant.

Ms. Rameshan Oad, Assistant Prosecutor General for the State.

2021 M L D 1368

[Sindh]

Before Nadeem Akhtar, J

AKHLAQ HASHMI---Plaintiff

Versus

Mst. BAKHT BIBI and 33 others---Defendants

Civil Suit No.1077 of 2020, decided on 30th April, 2021.

Specific Relief Act (I of 1877)---

----Ss.12, 42 & 54---Civil Procedure Code (V of 1908), S. 35-A---Suit for specific performance of agreement to sell, declaration and injunction---Preconditions---Part of contract, non-performance of---Effect---Special costs, awarding of--- Plaintiff entered into agreement with defendant for purchase of suit property and paid 30% of total consideration amount as earnest money---Contention of plaintiff was that defendant failed to transfer suit property in his favour---Validity---Held, in suit for specific performance, it was obligatory upon plaintiff to demonstrate in unequivocal terms in his pleadings as well as by his conduct throughout the proceedings that he had been always and was serious, capable, ready and willing to perform his agreed part of contract---Such readiness and willingness of plaintiff was essence of and a condition precedent for seeking specific performance of contract---In absence of the same, equitable and discretionary relief of specific performance could not be granted---Seriousness, capability, readiness and willingness to perform its agreed part of contract was the "condition precedent" for seeking specific performance, and the same could be judged from the conduct of party seeking such relief---Conduct of plaintiff, in the present case, from the very inception of suit did not reflect that he was serious, capable, ready and or willing to perform his agreed part of contract---Plaintiff filed the suit after paying 30% amount of agreed sale consideration---Conduct of plaintiff and reluctance on his part to deposit balance sale consideration despite Court order reflected his deliberate and intentional unwillingness to perform his agreed part of contract---Plaintiff dragged defendants in uncalled for litigation due to which defendants were unable to enjoy and exercise their valuable proprietary rights in respect of their own property for the last many years---High Court directed the defendants to return earnest money received by them from plaintiff and imposed special cost upon plaintiff---Suit was dismissed, in circumstances.

Hamood Mehmood v. Mst. Shabana Ishaque and others 2017 SCMR 2022 and Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171 rel.

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

Umar Farooq Khan for Plaintiff.

Nasrullah Malik for Defendants Nos.1 to 31.

Defendant No.32 (called absent).

Defendant No.33 (called absent).

Defendant No.34 (called absent).

2021 M L D 1384

[Sindh (Hyderabad Bench)]

Before Mahmood A. Khan, J

AMJAD HUSSAIN and 9 others---Applicants

Versus

ARIF ALI ABBASI and another---Respondents

Civil Revision Application Paragraph No.151 of 1996, heard on 1st October, 2019.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Land Reforms Regulation, 1972, Paras. 7 & 26---Suit for declaration and permanent injunction---Certain transfers void---Bar of jurisdiction---Scope---Plaintiffs filed suit for declaration and permanent injunction claiming to have purchased suit property from the attorney of defendant---Defendant, prior to the suit, had filed application before the Assistant Commissioner for setting aside the mutation on the ground of fraud in terms of para. 7 of Land Reforms Regulation, 1972---Application filed by defendant under O.VII, R.11, C.P.C., on the ground that the suit was not maintainable being hit by para. 26 of Land Reforms Regulation, 1972, was dismissed being pre-mature and it was held that the matter required evidence---Suit was, however, dismissed on an application filed by defendant under S.151, C.P.C., claiming therein that the proceedings had become infructuous as the possession of suit property was taken over on account of proceedings decided by the Land Commissioner and that the suit was hit by para. 26 of Land Reforms Regulation, 1972---Appellate Court dismissed the appeal---Validity---Order passed by Land Commissioner was without prejudice to the cases before the various forums between the parties other than under Land Reforms Law---Plaintiffs were not heard being claimants in the matter nor the said order decided the matter of controversy / rights between the parties---Impugned orders were set aside and the suit was restored---Revision petition was allowed, in circumstances.

PLD 1985 SC 144; PLD 1975 SC 624; PLD 2003 SC 31 and Muhammad Anwar v. Province of Punjab 2016 CLC 1660 ref.

Arbab Ali Hakro for Applicant.

Prakash Kumar for Respondent No.1.

Wali Muhammad Jamari, Assistant Advocate General for Respondent No.2.

2021 M L D 1393

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh and Shamsuddin Abbasi, JJ

SHER KHAN PAHORE ---Petitioner

Versus

EXECUTIVE ENGINEER HIGHWAYS DIVISION, JACOBABAD and 3 others---Respondents

Constitution Petition No.D-1210 of 2015, decided on 23rd October, 2019.

Constitution of Pakistan---

----Art.199---Constitutional petition---Enforcement of contractual obligations---Factual controversy---Maintainability---Scope---Petitioner claiming himself to be a government contractor filed petition for recovery of money in respect of some work in the construction of roads allegedly done by him---Validity---Matter involved factual controversies needing evidence of the nature of establishing the enforceability of the contractual liabilities---Claim of money could be raised in appropriate proceedings before the court of competent jurisdiction, which could not be gone into while exercising constitutional jurisdiction under Art.199 of the Constitution---Constitutional petition was dismissed, in circumstances.

Muhammad Afzal Jagirani holds brief of Sarfraz Khan Jatoi for Petitioner.

Leela@ Kalapna Devi, Addl. A.G. for Respondents.

2021 M L D 1398

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD ASIF and another---Petitioners

Versus

NASEEM BEGUM and 2 others---Respondents

Constitutional Petition No.S-243 of 2020, decided on 24th August, 2020.

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

----S.13---Specific Relief Act (I of 1877), S. 12---Eviction petition---Pendency of suit for specific performance of agreement to sell---Effect---Petitioner/tenant assailed order passed by the courts below whereby he was directed to vacate the rented premises---Contention of petitioner was that he had purchased the property through sale agreement and handsome amount was paid by him---Validity---Admittedly, petitioner was inducted as tenant, hence his subsequent plea of having purchased the premises under sale agreement was of no help to deny relationship of landlord and tenant therefore, he always was obliged to honour the payment of rent once ordered under S.16(1), Sindh Rented Premises Ordinance, 1979---Success in his pending suit for specific performance would bring its own legal consequences which, however, till such determination could not be taken to deprive the Rent Controller to exercise legal discretion created by the law itself---Petitioner, being tenant, had no option except to vacate the premises when such order was passed in consequence to his failure in complying with lawful order of Rent Controller---Constitutional petition was dismissed.

C.P. No.S-1283 of 2019 distinguished.

Mian Muhammad Akram for Petitioners.

Abdul Hamid Yusfi for Respondent No.1.

2021 M L D 1442

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar and Fahim Ahmed Siddiqui, JJ

ABDUL HALEEM and others---Petitioners

Versus

PROVINCE OF SINDH, through Secretary Cooperative

Department, Government of Sindh, Karachi and 10 others---Respondents

Constitutional Petitions Nos.D-518 of 2020 and D-1013 of 2019, decided on 31st March, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Amenity plot---Restoration of status---Residents of locality---Locus standi---Change in Master Plan---Pre-condition---Plot in question was amenity plot reserved for playground and was converted into residential plots---Validity---Interest of owners of immovable properties in amenity plots, reserved for convenience and comfort of residents, was a right enforceable by invoking Constitutional jurisdiction of High Court--- Sanctioned Master Plan, showing such amenity plots/area, could not be altered without inviting objections or obtaining "No Objection Certificates" from residents---Any modification in plan which would alter or radically change sanctioned scheme to take away the comfort or convenience provided through amenity plots/area, was a fraud upon residents, who purchased immovable properties on a representation through sanctioned plan---High Court set aside the action of converting Amenity plot reserved for playground into residential plots, as the same was result of arbitrary exercise of power---High Court directed the respondents to restore amenity plot reserved for playground---Constitutional petition was allowed, in circumstances.

Abdul Razzaq's case PLD 1994 SC 512 and Ardeshir Cowasjee's case 1999 SCMR 2883 rel.

Mehfooz Ahmed Awan for Petitioner (in C.P. No.D-518 of 2020).

Dareshani Ali Hyder 'Ada' for Respondents.

Shaharyar I. Awan, A.A.G.

Ali Raza Pathan, Assistant Attorney General.

Mujeeb-ur-Rehman Soomro, Special Prosecutor NAB.

2021 M L D 1466

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

NAKEEF NINDWANI---Applicant

Versus

The STATE---Respondent

Criminal Appeal No.S-03 of 2021, decided on 9th April, 2021.

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

----Ss.324, 353, 402 & 34---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, assembling for the purpose of committing dacoity, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Prosecution case was that when the police tried to apprehended the wanted accused, they made straight firing on the police party, in retaliation, police also made firing, due to which accused was hit and injured and was apprehended, whereas the remaining accused made their escape good---Record showed that case of prosecution was that the accused was arrested in injured condition and after his arrest he was brought at RHC where he was left for the treatment---Prosecution failed to produce any medical evidence in respect of the injuries received by the accused, even the medical certificate had not been produced by any of the witnesses whose evidence was recorded by the Trial Court---Complainant deposed that accused was arrested in injured condition and at the time of arrest blood was oozing from the injury---Complainant and the Investigation Officer failed to collect the blood stained earth from the place of vardat or blood stained clothes of the accused which he was wearing at the time of alleged encounter nor the clothes were produced before the trial court to prove the case and to show the hole of bullet on the clothes, which bullet, as per version of prosecution hit to the accused on his leg---Such state of affairs was fatal to the prosecution case.

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

----Ss.324 & 353---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty---Police encounter---Non-production of medical evidence--Scope---High Court observed that in cases of police encounters where only the accused received injuries during the encounters, non production of medical evidence in respect of those injuries was fatal to the case of prosecution.

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

----Ss.324, 353, 402 & 34---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, assembling for the purpose of committing dacoity, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that when the police tried to apprehend the wanted accused, they made straight firing on the police party, in retaliation, police also made firing, due to which accused was hit and injured and was apprehended, whereas the remaining accused made their escape good---Complainant admitted in cross-examination that they were present at the place of incident for about 30 minutes but they did not collect the empties from the place of vardat---Mashir/Police Constable stated during his cross-examination that they were present at the place of vardat for about 50 minutes---Both the said witnesses of the prosecution and the Investigating Officer, however, admitted that none from the police party received any injury during the encounter---Mashir/Police Constable stated during his cross-examination that at the time of encounter police party was on eastern side while accused persons were on western side---Said witness also stated in his cross-examination that accused ranaway towards eastern side---Trial court had also not considered that point as to how the accused person tried to escape to such a direction where police party was available with arms and ammunition and the encounter was continuing---Mashir further stated during his cross-examination that they did not follow the remaining accused persons---High Court observed that evidence of witness/mashir clearly showed that no encounter took place but false case was managed against the accused by the police---Evidence of Police Officials required independent corroboration, which was lacking in the present case---Defence pleas raised by the accused that he was arrested by the police from his house prior to the incident and weapon was foisted upon him in fake police encounter appeared to be plausible, however, the trial court disbelieved the same without assigning any reason---Prosecution had not been able to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss.324, 353, 402 & 34---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, assembling for the purpose of committing dacoity, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empties---Delay in sending the weapon and crime empties for analysis---Scope---Prosecution case was that when the police tried to apprehend the wanted accused, they made straight firing on the police party, in retaliation, police also made firing, due to which accused was hit and injured and was apprehended, where as the remaining accused made their escape good---Record showed that pistol was recovered from the possession of accused---High Court observed that after the reassessment of entire evidence produced by the prosecution, it was found that the same was foisted upon the accused---Prosecution had alleged that the recovery of pistol and the empties from the place of vardatwere effected on 25-09-2020---Same were sent for Forensic Science Laboratory on 29-09-2020---No explanation in respect of such delay for about five (05) days was offered by the prosecution---Non explanation of such delay in the circumstance of the case coupled with the fact that none of the police official received any injury during the encounter and the other circumstance were fatal to the case of prosecution---Positive Forensic Science Laboratory, in such circumstances, could not be relied upon for convicting the accused---Safe custody of the recovered pistol and the empties for those five (05) days was not proved by the prosecution by producing any evidence in that respect---Appeal against conviction was allowed, in circumstances.

Muhammad Amir and others v. The State 2020 MLD 1777 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Benefit of all the favourable circumstances shall be extended to the accused not as a matter of grace or concession but as a matter of right.

Abdul Jabbar and another v. The State 2019 SCMR 129 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Amanullah Luhur Baloch for Applicant.

Muhammad Noonari, D.P.G. for Respondent.

2021 M L D 1484

[Sindh]

Before Nadeem Akhtar, J

SHARAFAT ALI---Plaintiff

Versus

Mst. SHAHJAHAN BEGUM and another---Defendants

Suit No.D-1784 of 2010 and C.M.A. No.8421 of 2018, decided on 15th June, 2021.

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

----S.12---Civil Procedure Code (V of 1908), O.X, R.2---Suit for specific performance of agreement to sell---Oral examination of party or companion of party---Non-deposit of balance sale consideration---Scope---Plaintiff sought restoration of suit dismissed due to non-compliance of order whereby he was directed to deposit the balance sale consideration in court within 15 days and also in view of the absence on the date which was fixed for examination of parties and settlement of issues---Validity---Plaintiff was specifically directed to deposit the balance sale consideration and it was ordered that in case of his failure in doing so within the stipulated period, further time would not be granted to him for that purpose---Plaintiff, in a suit for specific performance had to show his bona fides in terms of the agreement for sale---Argument advanced on behalf of the plaintiff that the said order was not justified and thus the order of dismissal of the suit due to its non-compliance was also not justified, being misconceived, was rejected---Plaintiff was required to be present along with his evidence and witnesses when the suit was fixed for examination of parties and settlement of issues---No exception could be taken to the dismissal of the suit due to continuous and unexplained absence of the plaintiff and his counsel on the previous four dates, particularly the relevant date when the suit was fixed especially for examination of parties and settlement of issues---Application was dismissed, in circumstances.

Messrs Eastern Steel, Karachi v. National Shipping Corporation, I.I. Chundrigar Road, Karachi 1984 CLC 2778; Ghulam Nabi v. Khuda Bux and 2 others PLD 1984 Kar. 245 and Abdul Latif v. Muhammad Yousuf and 2 others PLD 1996 Kar. 365 ref.

Hamood Mehmood v. Shabana Ishaque and others 2017 SCMR 2022; Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171; Allah Ditta v. Bashir Ahmad, 1997 SCMR 181 and Haji Abdul Hameed Khan v. Ghulam Rabbani 2003 SCMR 953 rel.

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

----O.X, R.2---Oral examination of party or companion of party---Scope---When a suit is fixed for examination of parties and settlement of issues, plaintiff is required to be present along with his evidence and witnesses; and, in case of his failure, the suit is liable to be dismissed.

Badrul Alam for Plaintiff.

Sarwat Jawahir for Defendants.

2021 M L D 1501

[Sindh (Sukkur Bench)]

Before Irshad Ali Shah, J

AYAZ ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-61 of 2019, decided on 27th May, 2019.

Sindh Arms Act (V of 2013)---

----S.24---Possession of unlicensed weapon---Appreciation of evidence---Benefit of doubt---Prosecution case was that a unlicensed gun with four live cartridges, allegedly used in commission of offence of murder was recovered from accused---Admittedly, the accused was not named in the FIR in murder case---Gun and cartridges had allegedly been secured from the accused on 4th day of his arrest, which appeared to be significant---Accused was not found to be in exclusive possession of the place from where the alleged recovery of gun with cartridges was made---Gun had been subjected to its examination by the expert on 7th day of its recovery---Such delay had not been plausibly explained by the prosecution---No question was put to the accused during course of his examination under S.342, Cr.P.C., to have his explanation on report of the expert by Trial Court---Admittedly, accused had been acquitted by Federal Shariat Court in main murder case---Involvement of the accused in the present case appeared to be doubtful, in circumstances---Appeal against conviction was allowed, in circumstances.

Ali Asghar Lashari v. The State 2019 PCr.LJ 53 and Zahid Hussain v. The State and others (Note) 2011 PCr.LJ 344 ref.

Tarique Pervez v. The State 1995 SCMR 1345 rel.

Shahid Ali K. Memon for Appellant.

Zulfiqar Ali Jatoi, Additional Prosecutor General for the State.

2021 M L D 1521

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

ATTA HUSSAIN---Petitioner

Versus

Mst. NAZIA and another---Respondents

Constitution Petition No.S-865 of 2019, decided on 5th October, 2020.

Family Courts Act (XXXV of 1964)---

----S.17-A---Suit for maintenance of Wife/children---Scope---"Maintenance" means and includes food, clothing and lodging which is the responsibility of the father to pay his children and wife---Object of determining maintenance is to ensure in all probability that the minor is maintained by the father in a dignified manner with reasonable comfort, and the mother is not left to bear the financial burden of the minor.

Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557 rel.

Abdul Sattar Sarki for Petitioner.

2021 M L D 1536

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD SHAHID alias JAPANI---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No.183 of 2018, decided on 11th May, 2020.

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

----Ss.302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Arts. 38 & 40---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Confession to police officer, Information received from accused---Appreciation of evidence---Benefit of doubt---Delayed FIR---Scope---Accused along with another was alleged to have murdered a person and injured another by firearm---First Information Report was lodged with a delay of four days---Accused was not named in the FIR---Sole eye-witness of the incident had admitted in his evidence that he could not recognize any of the culprits who had fired at him and the deceased---No one was arrested from the spot---No pistol was recovered from the spot---Accused person's alleged confession before the police, which was later retracted, was inadmissible in evidence---Accused person's act of leading the police to the place where the crime was committed was irrelevant as the police already knew where the crime was committed---Only piece of evidence against the accused was a positive report of Forensic Laboratory which showed that the empties recovered from the scene matched with the pistol recovered from the accused on his arrest 18 months after the incident, however, there was no evidence where the empties were kept for over that 18 months' period and whether they were the same empties---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Ghulam Akbar and another v. The State 2008 SCMR 1064; Ali Sher and others v. The State 2008 SCMR 707; Abdul Latif Unar and another v. The State 2018 PCr.LJ Note 49 and Syed Riffat Hussain and others v. The State Special Crl. Anti-Terrorism Appeals Nos.98 and 99 of 2018-unreported dated 03.09.2019 ref.

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

----S.154---Information in cognizable cases---Delayed FIR---Scope---Delay in filing an FIR without explanation adversely impacts on the prosecution case.

Muhammad Imran Meo for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

2021 M L D 1551

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

SALEEM DEVDA---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No.165 of 2017, decided on 5th May, 2020.

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

----Ss.302 & 34---Criminal Procedure Code (V of 1898), S.161---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd and common intention---Act of terrorism---Appreciation of evidence---Benefit of doubt---Delayed FIR---Delay in recording statement under S.161, Cr.P.C.---Scope---Prosecution case was that the accused along with two others murdered two persons in front of the shop of complainant---Complainant was also an eye-witness of the incident but he had lodged the FIR after 6 days despite his knowing the culprits---Such long delay had gone completely unexplained---Complainant had not approached the police to record his S.154, Cr.P.C. statement but rather the police had approached him whereupon he had said that he could only record his statement after consultation with his elders---Basic concept behind lodging FIR promptly was to ensure that there was no time for consultation and concoction between the complainant and the police or any other third party who might want to fix a person in a false case but in the present case, the complainant had actually admitted that he wanted to consult with his elders which was completely contrary to the concept behind lodging FIR promptly---Statement of eye-witness under S.161, Cr.P.C., was recorded 26 days after the incident---Eye-witness had also claimed to have known the accused yet in the inquest report which he had signed soon after the incident at the hospital it was stated that the unknown accused persons had come on motorcycle and fired at the deceased---Evidence of the eye-witnesses could not be safely relied upon, in circumstances---Appeal against conviction was allowed.

Abdul Ghaffar v. The State 2006 SCMR 56; Zeeshan Shani v. The State 2012 SCMR 428; Shewaiz Rasool alias Shabi v. The State 2019 SCMR 1448; Sabir Hussain v. The State 2014 SCMR 794; Notice to Police Constable Khizar Hayat PLD 2019 SC 527; Mubasher v The State PLD 2015 Lah. 426; Muhammad Ehasan v. The State 2006 SCMR 1857; Dadullah and another v. The State 2015 SCMR 856; Niaz Ud Din v. The State 2011 SCMR 725 and Muhammad Asif v. State 2017 SCMR 486 ref.

Farman Ahmed v. Muhammad Inayat 2007 SCMR 1825 rel.

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

----S.154---Information in cognizable cases---Prompt FIR---Scope---FIR must be lodged with promptitude in order to give it reliability and credibility unless such delay can be explained.

Khalid Javed v. State 2003 SCMR 1419 and Muhammad Younis v. Muhammad Khan 1999 YLR 2135 ref.

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

----S.154---Information in cognizable cases---Delayed FIR---Scope---Delay of one hour in lodging an FIR may be fatal to the prosecution case based on the peculiar facts and circumstances of the case.

Zeshan alias Shani v. State 2012 SCMR 428 ref.

Farman Ahmed v. Muhammad Inayat 20017 SCMR 1825 rel.

Muhammad Farooq for Appellant.

Ali Haider Saleem, Deputy Prosecutor General for the State.

2021 M L D 1562

[Sindh]

Before Mohammed Karim Khan Agha and Abdul Mobeen Lakho, JJ

NAVEED IQBAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.577 of 2019 and Confirmation Case No.30 of 2019, decided on 13th April, 2021.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---First Information Report was lodged with promptitude---Scope---Accused was charged that he along with co-accused committed murder of the sister and brother-in-law of the complainant---Record showed that the FIR was lodged on the same day with promptitude (within 2 hours and 30 minutes of the incident)---Facts remained that complainant rushed from his house, when informed about the incident, to the house of his deceased and injured relatives and then to the hospital where they were taken where his statement under S.154, Cr.P.C was recorded which formed the basis of the FIR, thus, there was no unexplained delay in lodging the FIR which gave no time for the complainant to be in league with the police to concoct a false FIR against the accused---No enmity between the complainant and the accused was found and thus the complainant had no reason to implicate him in a false case---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt, however, the two sentences of death were reduced to life sentences which shall run concurrently---Appeal was dismissed with modification in sentence.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sole minor eyewitness---Scope---Accused was charged that he along with co-accused committed murder of the sister and brother-in-law of the complainant---In the present case, the prosecution had produced eleven years old daughter of the deceased father and mother in order to identify the accused---Based on the rationality test of minor, it was found that the child eye-witness had the capacity and intelligence of understanding the questions put to her and was also able to rationally respond thereto and that her evidence might be considered---From the manner in which the child witness had given evidence in a straightforward way and her able handling of the questions which were put to her in cross-examination it was unable to dent her evidence---Evidence of said witness was regarded as reliable, trustworthy and confidence inspiring and reliance could be placed upon the same---Child witness was not a chance witness and had no enmity with the accused and no reason to implicate him in a false case---Statement of eye-witness under S.161, Cr.P.C, was taken on the same day and no improvements were made in it from her evidence in court---Reliance could be placed on such evidence in terms of correctly identifying the accused who shot both of her parents---Child witness knew the accused who was her neighbour and she had seen him shooting both of her parents in good light and was able to get a good look at him from close range through the originally open door of the flat for a reasonable period of time and was therefore easily able to identify him and thus there was no need for an identification parade---Medical evidence corroborated the eye-witness evidence, that according to Medical Officers, both the deceased were killed by firearm injuries---Circumstances suggested that it did not appeal to reason, logic or commonsense that the child who was the eye-witness would let the murderer of her own mother and father go scot free by substituting him with an innocent person (the appellant)---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt, however, the two sentences of death were reduced to life imprisonment on two counts, which shall run concurrently---Appeal against conviction was dismissed with modification in sentence.

Muhammad Ismail v. The State 2017 SCMR 713; Qaddan and others v. The State 2017 SCMR 148; Saifullah v. The State 2017 SCMR 2041; Razzaq Ahmad v. The State 2012 YLR 1616; Ashfaque alias Shaka v. The State and others 2017 PCr.LJ 359; Ghulam Haider v. The State 2016 YLR Note 80; Muhammad Aslam v. The State 2017 MLD 14; Bhai Khan v. The State and another 2015 YLR 959; Ijaz Ahmad v. The State 2009 SCMR 99; Muhammad Waris v. The State 2008 SCMR 784; The State v. Khushal Khan alias Baju 2002 MLD 366; Rustam Ali Kaskheli and another v. The State SBLR 2021 Sindh 202 and Zatoon Bibi and another v. The State 1998 PCr.LJ 1680 ref.

Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another PLD 2020 SC 146 and Allah Ditta v. State PLD 2002 SC 52 rel.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence and crime empties---Scope---Accused was charged that he along with co-accused committed murder of the sister and brother-in-law of the complainant---Record showed that the accused was arrested within one day of the incident on spy information and an unlicensed pistol was recovered from him---Empties recovered at the scene of the crime matched the pistol which had been recovered from the accused on his arrest as was evidenced by a positive Forensic Science Laboratory Report---Police witnesses had no enmity or ill will towards the accused and had no reason to falsely implicate him in the case for example making up his arrest or foisting the pistol on him---In such circumstances, the evidence of the police witnesses could be fully relied upon---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt, however, two sentences of death were reduced to two sentences of life imprisonments which shall run concurrently---Appeal against conviction was dismissed with modification in sentence.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Minor contradictions---Scope---Accused was charged that he along with co-accused committed murder of the sister and brother-in-law of the complainant---All the prosecution witnesses were consistent in their evidence---Even if there were some contradictions in their evidence, those were minor in nature and not material and certainly not of such materiality so as to affect the prosecution case and the conviction of the accused---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt, however, two sentences of death were reduced to two sentences for life imprisonment which shall run concurrently---Appeal against conviction was dismissed with modification in sentence.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Quantum of sentence---Scope---Accused was charged that he along with co-accused committed murder of the sister and brother-in-law of the complainant---Record showed that there was minor contradiction concerning the date of arrest of the accused and the fact that the prosecution had neither asserted or been able to prove a motive---Such circumstances were sufficient to reduce the two sentences of death into imprisonments for life which shall run concurrently---Appeal against conviction was dismissed with said modification in sentence.

Ulfat Hussain v. The State 2010 SCMR 247 and Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 rel.

Raja Rashid Ali for Appellant.

Mohammad Iqbal Awan, Deputy Prosecutor General for the State.

Abdul Wali for the Complainant.

2021 M L D 1591

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

MOULA BUX and 5 others---Applicants

Versus

PROVINCE OF SINDH through Secretary Board of Revenue Hyderabad

and 6 others---Respondents

Revision Application No.122 of 2011, decided on 25th September, 2020.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for declaration and permanent injunction---Revision petition---Concurrent findings of facts---Scope---Respondent filed application before the Additional Deputy Commissioner stating therein that the suit property was allotted to him---Said application was allowed and the entries available in the record of rights in favour of the applicants were cancelled on the premise that all such entries overlapped with the allotment of respondent---Said order was assailed in appeal before Additional Commissioner, which was dismissed---Revision was preferred before the Member (Judicial), Board of Revenue, was also dismissed---Applicants filed suit for declaration and permanent injunction before the Civil Court and thereafter filed appeal before the District Court---Validity---Legal position reflected that Revenue hierarchy had decided the 'entitlement of subject land'---Findings of facts and law by the two courts below were concurrent and the applicants had failed to point out misreading or non-reading of evidence, jurisdictional error or illegality in the impugned orders---Findings recorded by the Trial Court affirmed by the Appellate Court were neither perverse nor were the result of misreading or non-reading of evidence---Oral as well as documentary evidence was fully discussed---High Court, while exercising revisional jurisdiction under S.115, C.P.C., declined interference with the findings of the courts below---Revision petition was dismissed, in circumstances.

Hakim Ali Siddiqui for Applicants.

Imdad Ali R. Unar and Faisal Mughal for Respondents Nos.6 and 7.

Allah Bachayo Soomro, Additional Advocate General, Sindh.

2021 M L D 1603

[Sindh (Hyderabad Bench)]

Before Mahmood A. Khan, J

Pir ALI SHAH through Legal Representatives and others---Applicants

Versus

MUHAMMAD SOOMAR and 2 others---Respondents

Civil Revision No.46 of 2000, decided on 11th September, 2019.

Civil Procedure Code (V of 1908)---

----O.XLI, R.30---Judgment when and where pronounced---Scope---Applicants contended that the matter pertained to conflicting findings wherein their claim of inheritance was decided by the Trial Court in their favour---Appellate Court only considered the point of jurisdiction of Civil Court and gave adverse findings---Respondent contended that he had a good case on merits and considered that the Appellate Court had not considered that Civil Court was the court of ultimate jurisdiction---High Court, in view of the consent of the parties, while considering that the ultimate jurisdiction was available with the Civil Court; failure of the Appellate Court to discuss the issues/rights of the parties on the basis of their evidence and the Appellate Court's failure to comply with the requirement of O.XLI, R.30, C.P.C., remanded the matter to the Appellate Court for decision on merits.

Parkash Kumar for Applicants.

Muhammad Ishaque Khoso for Respondent No.1.

2021 M L D 1657

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto, J

NABI BUX JAKHRANI---Petitioner

Versus

The STATE---Respondent

Criminal Appeals Nos.S-57 and S-58 of 2020, decided on 22nd October, 2020.

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

----S.23(i)(a)---Criminal Procedure Code (V of 1898), S. 103---Possession of unlicensed Arms---Appreciation of evidence---Non-association of private witnesses---Effect---Prosecution case was that one TT Pistol of 30-bore containing 04 live bullets was recovered from accused, while co-accused was also found in possession of one 30-bore pistol and they had no licenses for the weapons carried by them, which were used in the commission of the murder in another case---Record showed that present case was a case of spy information, however, Investigating Officer failed to associate private persons as mashirs---Investigating Officer had admitted in the cross-examination that private persons crossed the road at the relevant time on motorcycles---Investigating Officer had failed to explain as to why he did not associate private persons as mashirs of recoveries in those cases---Evidence of the Police Officials in circumstances, required independent corroboration, which was lacking---Trial Court in the murder case had already disbelieved the testimony of same Police Officials with regard to recovery of weapons---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S.23(i)(a)---Possession of unlicensed Arms---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Prosecution case was that one TT Pistol of 30-bore containing 04 live bullets was recovered from accused, while co-accused was also found in possession of one 30-bore pistol and they had no licenses for the weapons carried by them, which were used in the commission of the murder in another case----Record showed that material contradictions regarding arrest of the accused persons had been highlighted by the defence---Recovery witness in the cross-examination had replied that Investigating Officer first caught hold of the accused persons---Said witness had also admitted that Investigating Officer had a handicapped leg---Investigation Officer in that case in the cross-examination had replied that he did not catch hold any of the accused---Admittedly, description of the pistols was not mentioned in the mashirnama of recovery---Mere mentioning that pistols were without numbers was not sufficient---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S.23(i)(a)---Possession of unlicensed Arms---Appreciation of evidence---Safe custody and transmission to the expert---Scope---Prosecution case was that one TT Pistol of 30-bore containing 04 live bullets was recovered from accused, while co-accused was also found in possession of one 30-bore pistol and they had no licenses for the weapons carried by them, which were used in the commission of the murder in another case---Record showed that pistols recovered from the possession of the accused were allegedly used in the murder case---Prosecution was duty bound to prove the safe custody of the weapons at the "Malkhana" of the police station and safe transmission to the Ballistic Expert, but prosecution had failed to prove the safe custody and safe transmission of the pistols to the Ballistic Expert---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

(d) Criminal trial---

----Witness---Police Officials as witnesses---Reliance---Scope---No doubt, evidence of the Police Officials could not be discarded simply because they belonged to police force, however, where the fate of the accused persons hinged upon the testimony of Police Officials alone, it would be necessary to find out if there was any possibility of securing independent persons at that time, as it would be unsafe to rely upon the evidence of the Police Officials without independent corroboration---Judicial approach had to be cautious in dealing with such evidence.

Qasim and others v. The State PLD 1967 Kar. 233 rel.

(e) Criminal trial---

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

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Faiz Mohammad Larik for Appellants (in both appeals).

Ali Anwar Kandhro, Additional Prosecutor General.

2021 M L D 1683

[Sindh]

Before Agha Faisal, J

MUJAHID KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.475 of 2020, decided on 28th April, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss.365-B, 376 & 109---Sindh Children Act (XIV of 1955), S.4---Kidnapping, abducting or inducing woman to compel for marriage etc., rape, abetment---Age of victim---Bail, refusal of---Allegation levelled against the accused, a neighbour of the complainant/victim, was that he kidnapped the fourteen years old victim and subjected her to rape, subsequent thereto, reliance was placed on a purported Nikah Nama to absolve the accused of culpability---Section 375(v), P.P.C., stipulated that sexual intercourse with a girl under the age of sixteen, with or without her consent, amounted to rape and the punishment thereof placed the offence squarely within the prohibitory clause, in so far as bail matters were concerned---Material placed before the Court pointed to the occurrence of sexual intercourse prior and subsequent to the date of the purported Nikah Nama---Statements of the accused and the victim were placed before the Court showing that intercourse took placed on successive dates prior in time to the purported Nikah Nama and it was also shown that at no time since the date thereof, till date, had such statements been denied or controverted---Even otherwise the issue of consent would become marginalized if the victim was underage---Memorandum of the bail application specifically pleaded that the victim was pregnant and corroboration thereof, in the form of medical reports, was also available on file---Paternity was also admitted by the accused, hence, the occurrence of intercourse appeared to be admitted---Age of the victim was demonstrated first by the NADRA, Underage Children Registration Certificate, wherein the victim and two of her siblings were mentioned and the victim was shown to be fourteen years old---Age certificate was issued by the Office of the Police Surgeon which categorically stated that according to the ossification data the bone age of the victim was between fourteen to fifteen years, nearer to fifteen years---Victim was examined in such regard and the findings delivered were in consonance with the NADRA certification---Victim's statement stipulated that she was not abducted---Notwithstanding the contention of the complainant that the relevant statement was given under duress, it was noted that the statement had no nexus with the alleged offence of rape per S.375(v), P.P.C., which could be proven, or otherwise, independent of whether kidnapping was proven or not---Circumstances established that the accused had been unable to set forth a fit case for grant of post-arrest bail---Bail application was dismissed, in circumstances.

Irfan Ali Sher v. The State (Jail Petition 324 of 2019); Shahzaman v. The State PLD 1994 SC 65; Asif Ayub v. The State 2010 SCMR 1735; Tariq Bashir and others v. The State PLD 1995 SC 34; Muhammad Imran v. The State 2016 SCMR 1401 and Sohail Waqar v. The State 2017 SCMR 325 rel.

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

----S.497---Bail---Tentative assessment---Scope---Observations made in bail orders, were of tentative nature and should not be influenced and/or prejudiced the case of either party at trial. [p. 1688] E

Shahid Akhtar Awan and Muhammad Salman Khan for Applicant.

Abrar Ali Khichi, Additional Prosecutor General for the State.

Liaquat Ali Awan and Qadir Raza Shaizada Baloch for the Complainant along with the Complainant.

2021 M L D 1699

[Sindh]

Before Abdul Maalik Gaddi and Mrs. Rashida Asad, JJ

Syed ALTAMASH MUSHTAQUE---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.161 of 2018, decided on 30th April, 2020.

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

----Ss.420 & 511---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Cheating and dishonestly inducing delivery of property, punished for attempting to commit offence---Appreciation of evidence---Benefit of doubt---Delayed FIR---Withholding best evidence---Scope---Accused was convicted under Ss.420 & 511, P.P.C., for having attempted to encash a forged cheque---Operations Manager of the Bank was not cited as a witness in the case whose evidence would have been the best piece of evidence in order to establish the charge---Accused had already withdrawn a huge amount of more than five million from the bank account, but even after alleged withdrawal of such a huge amount, account holders did not come forward to give evidence that the cheque was not signed by any of them and it was forged cheque or even during investigation it could not be brought on record that any complaint regarding missing or theft of the chequebook had been lodged by the account holders with the Bank or the police---Accused had remained under detention in the Bank and was produced at the police station at 10:45 p.m. whereas the bank time ended at 5:00 p.m.---Complainant had not promptly informed the police and in his evidence he had admitted that after consultation with the Head Office, he had lodged the FIR on the next day---Appeal against conviction was allowed, in circumstances.

Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Zeeshan alias Shani v. The State 2012 SCMR 428 and Noor Muhammad v. The State 2010 SCMR 97 rel.

(b) Criminal trial---

----Conviction---Accused cannot be convicted on probabilities neither high presumptions nor heinousness of the offence can be made basis for conviction of the accused until and unless any strong incriminating evidence is adduced by the prosecution.

(c) Criminal trial---

----Benefit of doubt---Scope---Several circumstances are not required for extending benefit of doubt in favour of the accused rather one circumstance, which creates reasonable dent in the veracity of the prosecution version, can be taken into consideration for the purpose, not as a matter of grace or concession rather as a matter of right.

Tariq Pervaiz v. The State 1995 SCMR 1345 and Riaz Masih v. The State 1995 SCMR 1730 ref.

Syed Amir Ali Shah for Appellant.

Muhammad Ahmed, Assistant Attorney General for Pakistan for the State.

2021 M L D 1734

[Sindh]

Before Niamatullah Phulpoto and Abdul Mobeen Lakho, JJ

MUQADAR ALI alias IMRAN---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No.155 of 2020, decided on 18th March, 2021.

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

----Ss.4 & 5---Anti-Terrorism Act (XXVII of 1997), S.7---Recovery of explosive substance, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that one hand-grenade was recovered from the possession of the accused---Inspection report of Bomb Disposal Unit showed that incharge Bomb Disposal Unit along with his team reached at police station and during inspection found one rifle grenade, which if used with proper technique with its launcher, it would cause loss of lives and damage to properties---Admittedly, there was big difference between "hand grenade" and "rifle grenade"--- Perusal of evidence of the complainant and mashir, FIR, challan and inspection report of Bomb Disposal Unit created doubt and suspicion as to nature and description of the alleged recovery from the accused---Material contradiction with regard to nature of recovery from the accused was found, hence, on that ground alone, false implication of the accused in the case could not be ruled out---Investigating Officer had failed to interrogate the accused that as to with what intention he was carrying such explosive substance---Defence plea had been raised by the accused that he was picked up by the Rangers Personnel from his house---Investigating Officer failed to examine such plea during investigation even Trial Court ignored defence evidence without assigning cogent reasons---Circumstances established that the prosecution had not been able to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss.4 & 5---Anti-Terrorism Act (XXVII of 1997), S.7---Recovery of explosive substance, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery---Safe custody---Scope---Prosecution case was that one hand-grenade was recovered from the possession of the accused---Prosecution had failed to establish the safe custody of the recovered explosive at the police station as neither the Incharge of the Malkhana was examined nor any entry had been produced by the prosecution to prove the safe custody of the explosive at the police station---Even perusal of arrival entry, not a single word was found about keeping the said property in safe custody or anywhere either it was kept at Malkhana of the police station or was handed over to anybody---Non-production of any witness concerned with such custody would certainly render the recovery unbelievable and doubtful---Circumstances established that the prosecution had not been able to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

Dur Muhammad Mallah for Appellant.

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

2021 M L D 1753

[Sindh]

Before Mohammad Karim Khan Agha and Muhammad Saleem Jessar, JJ

Syed SHEERAN ALI and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos.178, 179, 180 and Special Criminal Anti-Terrorism Jail Appeal No.303 of 2019, decided on 4th March, 2020.

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

----Ss.324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S.23(i)(a)---Attempt to commit Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, acts of terrorism, possessing unlicensed weapons---Appreciation of evidence---Sentence, modification of---Prosecution case was that the police party signaled to stop a vehicle for checking purpose, but, instead of stopping, the persons sitting inside the car, opened straight firing upon them---Police Officials chased them and also fire shots upon the culprits, in their self-defence---Resultantly, one bullet hit the left rear tyre of the car, the car stopped and finally, the police party succeeded to apprehend the accused persons---Record showed that there was not delay in registering the FIR, which would allow the police to cook up a false case against the accused persons---Accused persons were arrested on the spot in the car after a car chasing between the accused and the police which was also recovered---Accused persons had positive CRO's for narcotics and narcotics were recovered from them at the time of their arrest and hence that was the probable reason why they tried to escape from the police in order to evade yet another narcotics case against them---Positive Forensic Science Laboratory on the car tyre, which was hit by a police bullet which caused it to stop and the recovery of the pistol from one of the accused and empty and positive Forensic Science Laboratory Report in respect of each corroborated the police version of events---Evidence of the police witnesses corroborated itself in all material respects with no major contradictions in the same---Circumstances showed that only a couple of rounds were fired by the accused at the police from a long distance to facilitate the escape with no intention to kill---Fire was wayward and did not hit any police men, their mobile or any passerby and quite probably was aerial firing in order to facilitate their escape and as such the accused were acquitted of the charge under S.324, P.P.C., by extending them the benefit of doubt---Moreover, the case did not fall within the purview of the Anti-Terrorism Act, 1997, since according to the evidence there was no design, object or intent to cause terror and thus the provisions of the Anti Terrorism Act, 1997 would not apply---Offence under S.353, P.P.C., had been proved as per facts and circumstances of the case---Accused were acquitted for the offence under S.324, P.P.C., and under S.7 of Anti Terrorism Act, 1997, however, accused was convicted under S.353, P.P.C., and sentenced to two years' imprisonment---Co-accused was convicted under S.23(1)(a) Sindh Arms Act, 2013 and was sentenced to two years' imprisonment---Appeal against conviction was dismissed with said modifications.

(b) Criminal trial---

----Witness---Testimony of Police officials---Scope---Evidence of the police was as goods as of any other witness provided that there was no enmity between the police and the accused and none had been shown in that case and thus evidence of police would be believable.

Abdul Razaq for Appellants.

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

2021 M L D 1783

[Sindh]

Before Mohammad Karim Khan Agha and Muhammad Saleem Jessar, JJ

ASIF IQBAL and others---Appellants

Versus

The STATE ---Respondent

Special Criminal Anti-Terrorism Appeals Nos.218, 219 of 2018 and Confirmation Case No.10 of 2018, decided on 20th March, 2020.

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

----Ss.302, 364, 392 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, kidnapping or abducting in order to murder, robbery, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and co-accused persons kidnapped the cousin of complainant along with passengers riding on Bus and later on murdered them---Foundation of the prosecution case against the accused was built on the evidence of the sole eye-witness---Said eye-witness was related to some of the deceased and according to him he had managed to escape from the bus without being killed by the skin of his teeth---First FIR in that case was lodged on 6-7-2011, a day after the incident, but said witness did not come forward as a witness until 28-9-2011 which was nearly two months later without offering any explanation for failing to do so---Said fact did not appeal to reason, logic or common sense and led to the conclusion that eye-witnesses might be a put up witness---Possibility existed that eye-witness was not present at the time of the incident as he appeared to be a chance witness who was related to the deceased---Said witness stated that he was wounded when he escaped from the bus but he had not produced any medical certificate as proof of that injury and he had not produced his bloodied clothes---Circumstances established that the case of prosecution was based on without supportive/corroborative evidence---Appeal against conviction was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

Qabil v. The State 2020 PCr.LJ Note 13; Naib Subedar Nasabuddin, Frontier Corps (South) v. Ali Nawaz and others 2019 PCr.LJ 1539; Rahat Ali v. The State 2010 SCMR 584; Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Mst. Asia Bibi v. The State PLD 2019 SC 64; Muhammad Sadiq v. The State 2017 SCMR 144; Zeeshan alias Shani v. The State 2012 SCMR 428; Kanwar Anwaar Ali, Special Judicial Magistrate in the Matter of Criminal Miscellaneous 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 and Notice to Police Constable Khizar Hayat : In the matter of PLD 2019 SC 527 ref.

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

----S.161---Delay in recording statement of witness by police---Effect---Eye-witness had given his statement under S.161, Cr.P.C., nearly two months after the incident---No explanation had been furnished for such delay, therefore, no reliance could be placed on such statement.

Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----Ss.302, 364, 392 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-i-amd, kidnapping or abducting in order to murder, robbery, common intention, act of terrorism---Appreciation of evidence---Test identification parade---Infirmities---Scope---Prosecution case was that the accused along with co-accused persons kidnapped the cousin of complainant along with passengers riding on Bus and later on murdered them---Eye-witness in his statement under S.161, Cr.P.C., did not give any hulia of the accused---Eye-witness had not seen accused before and only got a fleeting glance at him---Light was somewhat questionable and as such ability of said witness to correctly identify the accused at an identification parade was doubtful---Identification parade took place four months after the incident---Accused was in police custody at the time of the identification parade and could have been shown to the eye-witness prior to the identification---CNIC Nos., addresses and professions of the dummies were not recorded in the Magistrate's report---Dummies were not similar and only 7 to 8 dummies were used---Circumstances established that the identification parade of the accused had not been conducted in accordance with law---Appeal against conviction was allowed, in circumstances.

Javed Khan v. State 2017 SCMR 524 and Kanwar Anwaar Ali PLD 2019 SC 488 rel.

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

----Ss.302, 364, 392 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Extra-judicial confession before police---Scope---Such confession was inadmissible in evidence.

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

----Ss.302, 364, 392 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.342---Qatl-i-amd, kidnapping or abducting in order to murder, robbery, common intention, act of terrorism---Appreciation of evidence---Examination of accused---Scope---Record showed that on the arrest of accused in another case a pistol was recovered from him and it was the case of the prosecution that said pistol matched the empties recovered at the scene but anyone could have given that pistol to the accused after the incident for his use---Accused in his statement under S.342, Cr.P.C., was not asked about the recovered pistol and as such that piece of evidence could not be used to convict him---Appeal against conviction was allowed, in circumstances.

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

----Ss.302, 364, 392 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, kidnapping or abducting in order to murder, robbery, common intention, act of terrorism---Appreciation of evidence---Delay in lodging the FIR---Effect---Prosecution case was that the accused along with his co-accused persons kidnapped the cousin of complainant along with passengers riding on a wagon and later on murdered them---Record showed that the first FIR was lodged on 06-07-2011 and disposed of in "C" class, yet on 28-9-2011, one day before, the second FIR was lodged after an unexplained delay of four months---Third FIR was also lodged with an unexplained delay of over four months after the incident---All of the said tended to suggest that the case against the accused being concocted could not be ruled out as there was plenty of time for consultation between the complainant of the second FIR, who was related to the deceased and the police, prior to the filing of the second FIR, keeping in mind that the first FIR was disposed of in "C" class---Said unusual and suspicious circumstances created doubt about the prosecution case against the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Farooq for Appellant.

Khawaja Naveed Ahmed for the Complainant.

Saleem Akhtar Buriro, Additional Prosecutor General for the State.

2021 M L D 1809

[Sindh]

Before Aftab Ahmed Gorar, J

WAJIHUDDIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.604 of 2019, decided on 4th May, 2020.

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

----Ss.302(b), 392, 397 & 34---Qanun-e-Shahadat (10 of 1984), Arts.38 & 39---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt and common intention---Confession by accused while in custody not to be proved against him---Search to be made in presence of witnesses---Appreciation of evidence---Benefit of doubt---Accused along with another was alleged to have fired at the deceased, who was a security guard at a restaurant---Complainant was not an eye-witness of the incident and the eye-witness produced by the prosecution was not associated as a witness of the case and nowhere in the FIR his presence was mentioned---Said witness stated that he had fired upon the culprits but neither weapon nor the empties were produced before the court---Investigating Officer had stated that the son of deceased had made an application for re-opening the investigation stating therein that his cousin had killed his father due to dispute over some properties---Mere admission of accused before the police officials regarding the guilt had no value and was violation of Arts. 38 and 39 of Qanun-e-Shahadat, 1984---No independent witness of the recovery of pistol was available which was violative of S.103, Cr.P.C---Prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Scope---Benefit of doubt must go to the accused not as a matter of grace but of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

(c) Criminal trial---

----Evidence---Circumstantial evidence---Benefit of doubt---Scope---Every chain should be linked with each other in cases based on circumstantial evidence and if any chain/link is missing then its benefit should be given to the accused.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047 and Sarfraz Khan v. The State 1996 SCMR 188 rel.

(d) Criminal trial---

----Benefit of doubt---Scope---Prosecution is bound to prove its case beyond any shadow of doubt---If any reasonable doubt arises from the prosecution case which pricks the judicial mind benefit of the same is to be extended to the accused not as a matter of grace or concession but as a matter of right.

(e) Criminal trial---

----Benefit of doubt---Scope---Existence of so many doubts in the prosecution case were not needed rather single reasonable doubt arising from it could crumble the whole edifice of the prosecution case.

(f) Criminal trial---

----Benefit of doubt---Scope---Better to acquit hundred culprits than convicting one innocent man.

Muhammad Faheem Zia for Appellant.

Ms. Seema Zaidi, D.P.G. Sindh.

2021 M L D 1833

[Sindh]

Before Nadeem Akhtar, J

USMAN KHAN---Applicant

Versus

Mst. NASREEN and 2 others---Respondents

Pre-arrest Bail Application No.1163 of 2014, decided on 2nd August, 2014.\

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

----S.498---Penal Code (XLV of 1860), Ss. 376 & 506---Rape and criminal intimidation---Pre-arrest bail, refusal of---Statement of victim---Scope---Accused was alleged to have raped his neighbour's daughter aged about 13/14 years and had also threatened to kill her---Accused was specifically nominated in the FIR with specific role of committing zina-bil-jabr---Victim in her statement recorded under S.161, Cr.P.C., had confirmed the contents of the FIR by fully implicating the accused and by specifically alleging that the accused had forcibly committed "ziadti" with her---Reasonable grounds were available on record to believe that the offence alleged in the FIR was committed by the accused, which fell within the prohibitory clause of S.497(1), Cr.P.C.---Interim pre-arrest bail granted to the accused was recalled and he was ordered to be taken in custody---Application for grant of pre-arrest bail was dismissed, in circumstances.

Rashad v. The State 2002 SCMR 1329 rel.

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

----S.376---Rape---Statement of victim---Scope---Mere statement of victim is sufficient to connect the accused with the commission of offence, if the statement inspires confidence.

Mushtaq Ahmed and another v. The State 2007 SCMR 473 rel.

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

----S.497---Bail---Tentative assessment---Scope---Only tentative assessment can be made and detailed assessment and evaluation of evidence is to be left for the Trial Court.

Bashir Ahmed v. The State 2004 SCMR 244 and Akhtar Hussain v. The State 2000 PCr.LJ 315 ref.

Muhammad Hanif Samma for Applicant.

Muhammad Iqbal Awan, Assistant Prosecutor General for Respondent.

Muhammad Mansoor Mir and Ms. Asiya Munir for the Complainant.

2021 M L D 1877

[Sindh]

Before Adnan Iqbal Chaudhry, J

MOHSIN AHMAD and others---Plaintiffs

Versus

NASREEN IRFAN and others---Defendants

Suit No.2581 of 2014 and Suit No.717 of 2010, decided on 1st July, 2021.

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

----O.IX, R. 9---Limitation Act (IX of 1908), Arts. 163 & 181---Dismissal of suit non-prosecution---Limitation---Application for restoration of a suit for dismissed for non-prosecution is not governed by Art.181 but by Art.163 of Limitation Act, 1908.

Sabzal v. Bingo 1989 CLC 656; Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. 2005 SCMR 609 and Mian Muhammad Asif v. Fahad 2009 SCMR 1030 rel.

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

----Ss.8, 42 & 54---Transfer of Property Act (IV of 1882), Ss.44 & 60---Civil Procedure Code (V of 1908), O. XX, R.13---Suit for recovery of possession, declaration and injunction---Preliminary decree---Transfer from co-sharer---Proof---Mortgagor, right of---Plaintiff claimed to be one of the legal heirs of deceased owner of suit house who sought recovery of possession on the plea of co-owner---Defendant resisted issuance of preliminary decree on the plea that he had paid valuable consideration to another co-owner for suit property whereas suit filed by defendant seeking declaration was dismissed for non-prosecution---Validity---Co-owner did not enter appearance to confirm receipt of consideration from defendant---Even if consideration was proved that could at the best be taken to be consideration for share of that co-owner in suit house---Till such time the co-owner would execute a registered deed to transfer her share to defendant, provision of S.44 Transfer of Property Act, 1882, was not triggered so as to enable him to claim that he was a transferee from a co-owner---Even if defendant were to subsequently become a transferee from co-owner, even then he could not resist a suit brought by another co-owner for administration of suit house---Though suit of defendant seeking declaration to that end was dismissed for non-prosecution but he had taken same plea in defence of suit filed by plaintiff who was a co-owner---Right of mortgagor to redeem his property, was a right founded in equity which was also protected by statute in S.60 of Transfer of Property Act, 1882---Such right was not extinguished by act of parties or by decree of a Court---Defendant had no legal basis to retain possession of suit house nor any legal basis to oppose preliminary decree for administration of suit house belonging to deceased, to which there was otherwise no impediment---Preliminary decree was passed in, circumstances.

Muhammad Tariq v. Hasin Jehan 1993 SCMR 1949 distinguished.

Khushi Muhammad v. Muhammad Ashfaq PLD 2014 Lah. 26; Muhammad Akhtar v. Siani 2011 CLC 1218; Muhammad Hassan Qureshi v. Muhammad Sharif 2007 CLC 1438; Moula Bakhsh v. Alfaz Hussain 2006 YLR 956; Abdul Lateef v. Ashique Ali PLD 2006 Kar. 404 and Suleman v. Custodian Evacuee Property PLD 1971 Lah. 77 rel.

Muhammad Imtiaz Lari for Plaintiff (in Suit No.2581 of 2014).

Nemo for Defendants Nos.1 to 5 (in Suit No.2581 of 2014).

Khaleeq Ahmed for Defendant No.6 (in Suit No.2581 of 2014).

Khaleeq Ahmed for Plaintiff (in Suit No.717 of 2010).

Nemo for Defendant No.1. (in Suit No.717 of 2010).

Muhammad Imtiaz Lari for Defendant (in Suit No.717 of 2010).

2021 M L D 1905

[Sindh]

Before Mohammad Shafi Siddiqui, J

HABIB BANK LIMITED through authorized persons/attorneys---Petitioner

Versus

MST. NEELOFAR ANWAR and others---Respondents

Constitution Petition No.S-971 of 2020, decided on 5th May, 2021.

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

----Ss.13, 16 & 18---Eviction petition---Arrears of rent---Change in ownership---Defiance in payment of arrears---Scope---Respondents/new landlords initiated eviction proceedings by filing rent case along with an application under S.16(1) of Sindh Rented Premises Ordinance, 1979---Tentative rent order passed by Rent Controller was not complied with by the petitioner, which resulted in striking of defence of the petitioner vide impugned order---Respondents, had served a notice under S.18 of the Sindh Rented Premises Ordinance, 1979, for intimating the change of ownership, which was admitted by the petitioner---Tentative rent order for the months of March, April, May and June, 2019, was passed on 21-10-2019---By the time impugned order was passed, a rent case was filed by the petitioner for deposit of rent with effect from July, 2019, onwards---Tentative rent order was passed for the period of March, April, May and June, 2019 and rent of future months excluding July to November, 2019 as it was claimed and shown to have been deposited in rent case filed by petitioner---Rent for the months of March to July, 2019 was rightly ordered to be deposited in Court as despite service of notice under S. 18, it was deposited in the name of previous landlady---Petitioner had committed defiance of tentative rent order and had committed default in payment of rent and hence the defence was rightly struck off---Constitutional petition was dismissed.

Rajender Kumar Chhabria for Petitioner.

Naeem Suleman for Respondents Nos.1 to 5.

2021 M L D 1914

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

SHAFQUAT HUSSAIN---Applicant/Complainant

Versus

The STATE and another---Respondents

Criminal Transfer Application No.S-49 of 2020, decided on 11th September, 2020.

Criminal Procedure Code (V of 1898)---

----S.526---Transfer of criminal case from one court to another---Scope---Applicant/complainant sought transfer of summary proceedings, submitted by Investigating Officer for disposal of FIR under C-class, from the court of Judicial Magistrate to any other competent court of law having jurisdiction mainly for the reason that the complainant had no hope of justice and fair disposal of the case, as attitude of the Magistrate was hostile towards him---No substantial ground or material was brought on record on the basis whereof, it could be said that the Magistrate was either prejudiced or biased against the applicant, which could justify the transfer of the summary case---Transfer application was dismissed.

Muhammad Raza Soomro for Applicant.

2021 M L D 1943

[Sindh (Sukkur Bench)]

Before Amjad Ali Sahito, J

GUL BAHAR JATOI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-148 of 2020, decided on 13th April, 2020.

Criminal Procedure Code (V of 1898)---

-----S.498---Gas (Theft Control and Recovery) Act (XI of 2016), Ss.15, 17 & 24---Bail, refusal of---Accused was found involved in gas theft---Prosecution witnesses had implicated the accused in the commission of offence while recording their statements under S.161, Cr.P.C.---Punishment provided for the offences under Ss.15, 17, 24 & 2(s) of Gas (Theft Control and Recovery) Act, 2016, was up to ten (10) years and not less than five (05) years and a fine of Rs.3 million---Nothing had been brought on record to show any ill-will or mala fide on the part of the complainant to falsely implicate the accused in the case---Accused had failed to make out a case for grant of bail---Application for grant of bail was dismissed, in circumstances.

Qurban Ali Malano for Applicant.

Muhammad Mehmood Sultan Khan Yousfi, DAG and Muneer Ahmed Maitlo, Deputy Manager/Prosecutor (SSGC) Company Limited Sukkur for the State.

2021 M L D 1954

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh, J

JALAL BURIRO---Petitioner

Versus

SHABEER BURIRO and others---Respondents

Criminal Acquittal Appeal No.S-77 of 2019, decided on 22nd November, 2019.

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

----Ss. 506(b), 337-A(i), 337-F(i) & 34---Criminal intimidation, shajjah-i-khafifah, ghayr-jaifah-mudihah, common intention---Appreciation of evidence---Appeal against acquittal---Delay of more than thirty four days in lodging the FIR---Effect---Accused were sent up with the challan to face their trial for offence under Ss.506(b), 337-A(i), 337-F(i) & 34, P.P.C.---Record showed that there was inordinate delay of more than 34 days in lodgement of the FIR---Incident was alleged to have taken place on 12.3.2018, whereas the FIR was lodged on 16.4.2018 and for such an inordinate delay no explanation had been offered by the prosecution---Appeal against acquitted was dismissed, in circumstances.

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

----Ss. 506(b), 337-A(i), 337-F(i) & 34---Criminal intimidation, shajjah-i-khafifah, ghayr-jaifah-mudihah, common intention---Appreciation of evidence---Appeal against acquittal---Contradictions in the statements of witnesses---Scope---Accused were sent up with the challan to face their trial for offence under Ss.506(b), 337-A(i), 337-F(i) & 34, P.P.C.---Record showed that no independent person was cited as witness or mashir, although the place of incident was a populated area, as was admitted by complainant in his cross-examination---Complainant stated that accused had beaten his whole body and he along with witness went to police station for lodging the FIR, however, the said witness did not state about his accompanying the complainant to the police station for lodging the FIR, as was stated by the complainant---Witness did not state that the complainant was beaten by any of the accused---Other witness stated that all accused persons caused kicks and fist blows to his father and uncle---Said witness stated in cross-examination that they went to police station with court order on foot---Evidence of the prosecution witnesses was self-destructive and contradictory to each other---Medical evidence was also not in line with the prosecution case---Witnesses' said material and glaring contradictions, dishonest and deliberate improvements and admissions adverse to the prosecution case during the trial rendered the prosecution case doubtful---Judgment of acquittal revealed that the same was apt to the facts and circumstances of the case, suffering from no illegality or any infirmity and/or misreading or non-reading of the evidence---Appeal against acquittal was dismissed accordingly.

(c) Appeal against acquittal---

----Double presumption of innocence---Interference---Presumption of double innocence is attached to the acquittal judgment, which normally did not call for interference unless found arbitrary, capricious, fanciful and against the record.

Yar Muhammad and 3 others v. The State 1992 SCMR 96; Muhammad Shah v. Muhammad Raza and another 2008 SCMR 329 and State and others v. Abdul Khaliq and others PLD 2011 SC 554 rel.

Appellant present in person.

2021 M L D 1969

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

ZAHID AHMED---Appellant

Versus

SOMIYO---Respondent

1st Appeal No.05 of 2015, decided on 17th April, 2019.

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

----S.42---Suit for recovery of amount---Scope---Plaintiff filed suit for recovery of certain amount claiming therein that the defendant had obtained a loan from him and for re-payment of the loan he had issued a cheque which was dishonoured on presentation---Trial court decreed the suit---Validity---Defendant had admitted in his deposition that he had handed over two cheques to the plaintiff, therefore, in view of such categorical admission regarding issuance of cheques to the plaintiff the burden was upon the defendant to prove that the subject cheque issued by him was not for re-payment of loan---Defendant had not stated a single word as to why he had issued two cheques---Acquittal of defendant in the criminal case on the ground of want of material ingredient of "dishonesty" in issuing the cheque did not relieve the defendant of his liability to pay the amount shown in the subject cheque---Impugned judgment and decree passed by trial court did not suffer from any illegality mis-reading or non-reading of evidence---Appeal was dismissed.

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

----S.489-F---Dishonestly issuing a cheque---Scope---Acquittal of defendant in a criminal case on the ground of want of material ingredient of "dishonesty" in issuing the cheque does not relieve the defendant of his liability to pay the amount shown in the cheque.

Main Taj Muhammad Keerio for Appellant.

Respondent in person.

2021 M L D 2000

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

ABDUL RAHEEM SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.578 of 2020, decided on 22nd December, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Bail, refusal of---Plea of self defence---Scope---Accused was charged for committing murder of brother of the complainant---Plea of self-defence was neither accepted at investigation nor was the applicant successful in convincing the court---Accused was not disputing firing at the deceased, who, as per medical record, received as many as five fire arm injuries on his person, whereas no harm was caused to the accused or his witnesses or anyone around in the incident---Firing five times on the deceased did not seem to commensurate with the plea of the applicant and his further act of not allowing the deceased to be taken to the hospital timely spoke of rather an approach different than the one pleaded by him and apparently was in transgression of the fine line between self-defence and aggression---Any declaration contrary to the charge even at that stage had a chance to jeopardize the case prematurely---Plea of self defence could only be settled after recording of evidence of the parties by the trial court and was beyond the scope of tentative assessment permitted at bail stage---Seventeen prosecution witnesses had been given up and 4 witnesses had been examined by the Trial Court from the prosecution side and now, except a couple of witness, the applicant had to lead his evidence in the trial---At that juncture granting bail to the applicant would not be justifiable---Bail application was disposed of with direction to the Trial Court and to decide the case expeditiously.

2016 YLR 1503; 2011 PCr.LJ 120; 2016 MLD 1995 and 2017 PCr.LJ 8 ref.

2011 SCMR 1332 rel.

(b) Criminal Procedure Code (XLV of 1860)---

----S.497---Bail---Tentative assessment---Scope---Findings made in bail proceedings were tentative in nature and would not prejudice case of either party at trial.

Barrister Khawaja Naveed Ahmed for Applicant.

Muhammad Khan Shaikh for the Complainant.

Khadim Hussain Shaikh, APG.

2021 M L D 2019

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

AYAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.345 of 2019, decided on 4th February, 2021.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and his co-accused persons were found in suspicious condition and were stopped and searched but they started firing upon the police party with intention to commit their murder, in retaliation police also made firing upon the culprits in self defence and during such encounter, two Police Officials sustained injuries---Record showed that it was day time incident, after encounter Police Officials failed to chase the accused who according to the prosecution case went running on foot---After the arrest of accused, identification parade was not held---Material contradictions were found in the evidence of the prosecution witnesses with regard to the actual occurrence---Prosecution case was that alleged encounter took place inside street but surprisingly no mark of bullet was noticed by the Investigating Officer on any wall of the street---As per prosecution story, the alleged encounter took place in a thickly populated area, but not a single independent person from the locality or any employee of petrol pump was cited as witness---Best possible evidence was deliberately withheld and not produced---After accused's arrest no identification parade was held---Injured Police Constable deposed that in fact there were three accused persons but he had not described the features of the accused in his statement under S.161, Cr.P.C. and he identified the accused before the Trial Court, which was unsafe to maintain conviction---Circumstances established that the prosecution had failed to bring home the guilt of accused---Appeal against conviction was allowed, in circumstances.

Iltaf Hussain v. The State 1996 SCMR 167; Said Ahmad v. Zammured Hussain 1981 SCMR 715; Majeed alias Majeedi and others v. The State and others 2019 SCMR 301 and Zeeshan alias Shani v. The State 2012 SCMR 428 ref.

Iltaf Hussain v. The State 1996 SCMR 167 and Majeed alias Majeedi and others v. The State and others 2019 SCMR 301 ref.

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

----Ss.324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Contradictions in the statement of injured witness---Prosecution case was that the accused and co-accused persons were found in suspicious condition and were stopped and searched but they started firing upon the police party with intention to commit their murder, in retaliation police also made firing upon the culprits in self-defence and during such encounter, two Police Officials sustained injuries---Record showed that the evidence of injured witness was found unreliable as in the examination-in-chief, said witness deposed that the accused present in court fired upon them and ran away, however, in the next breath during cross-examination said witness stated that accused present in court did not make any fire shot---Such contradiction on the part of the injured could not be ignored as another injured Police Constable could not be examined at trial due to his natural death---Circumstances established that the prosecution had failed to bring home the guilt of accused---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Witness---Injured witness---Scope---Injured witness would not be relied upon ipso facto, because of injuries but it was to be examined that whether the evidence was trustworthy and confidence inspiring.

Said Ahmad v. Zammured Hussain 1981 SCMR 795 ref.

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

----S.353---Police encounter---Standard of proof---Held, standard of proof should have been far higher as compared to any other criminal case, thus, it was desirable and even imperative that it should have been investigated by some other agency---Police could not be investigators of its own cause---Investigation which was woefully lacking independent character could not be made basis for conviction, that too when it was riddled with many lacunas and loopholes---Circumstances established that the prosecution had failed to bring home the guilt of accused.

Zeeshan alias Shani v. The State 2012 SCMR 428 rel.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Recovery of motorcycle used in the commission of offence---Reliance---Scope---Prosecution case was that the accused and co-accused persons were found in suspicious condition and were stopped and searched but they started firing upon the police party with intention to commit their murder, in retaliation police also made firing upon the culprits in self defence and during such encounter, two Police Officials sustained injuries---Record showed that in the FIR, it had been mentioned that complainant checked the motorcycle through CPLC from where it was informed that the said motorcycle belonged to "A" which was purchased by him on 11.11.2018 from a showroom, however, on the other hand, the Investigating Officer during his cross-examination had totally belied the statement of the complainant by stating that record for the motorcycles "applied for registration" was not available in CPLC and when there was no record available in the CPLC then how complainant/police came to know about the owner of motorcycle, its date of purchase and the name of show-room, which clearly suggested that complainant was not only known to the accused but also was aware about the date and place from where the said motorcycle was purchased---Use of the said motorcycle in the commission of alleged encounter was fraught with doubts and prosecution's failure was inescapable---Circumstances established that the prosecution had failed to bring home the guilt of accused---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Benefit of doubt---Principle---Benefit of all the favourable circumstances shall be extended to the accused.

Abdul Jabbar and another v. The State 2019 SCMR 129 rel.

Abdul Ghaffar Khan for Appellant.

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

2021 M L D 2055

[Sindh]

Before Nadeem Akhtar, J

MUHAMMAD IBRAHIM---Applicant

Versus

The STATE---Respondent

Criminal Revision No.148 of 2013, decided on 4th July, 2014.\

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

----S.514---Forfeiture of surety bond---Reduction in forfeited amount---Scope---Applicant invoked revisional jurisdiction of the High Court against the order passed by Sessions Judge whereby his application for the return of surety was disposed of by forfeiting the full amount of the surety---Applicant had specifically stated in his application that despite his best efforts, he had remained unable to contact the accused, for whom he stood as surety---Accused was not charged with any heinous crime or any such crime involving capital punishment---Forfeiting the entire surety amount was unreasonable and too harsh especially when there was nothing on record to suggest that the applicant had any ulterior motive or that he had connived with the accused or any other consideration except the benevolence of the accused---Order of forfeiture was maintained, but the amount to be forfeited was reduced to 20% of the total bail bond---Revision application was disposed of accordingly.

Muhammad Shah and others v. The State 1994 PCr.LJ 2316; Amanullah and another v. The State 1997 PCr.LJ 1927 and Faiz Muhammad v. The State 1999 PCr.LJ 991 ref.

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

----S.514---Forfeiture of bail bond---Scope---Where there is nothing on record to suggest that the surety had any other consideration except the benevolence of the accused, or the appellant stood surety for the accused out of charitable motive and not to derive any monetary benefit and there was no ulterior motive or connivance on his part, the surety should not be penalized heavily or treated harshly in case of non-appearance of the accused; while dealing with the surety, the principle of undue leniency and undue severity as well as the circumstances of the case must be kept in mind by the Court; and, sureties of accused persons involved in heinous crimes or involving capital punishment do not deserve any leniency while considering reduction of their bonds, but sureties of accused involved in minor offences with minor punishments and penalties should be treated leniently, and the entire amount of surety bond in such cases should not be forfeited.

Ms. Asma Khan for Applicant.

Shahzado Saleem, Assistant Prosecutor General, Sindh for the State.

2021 M L D 2085

[Sindh]

Before Muhammad Shafi Siddiqui and Agha Faisal, JJ

SOHAIL HAMEED---Petitioner

Versus

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

Constitution Petition No.D-6404 of 2021, decided on 31st July, 2021.

Sindh Epidemic Diseases Act, 2014 (VIII of 2015)---

----S.3---Constitution of Pakistan, Arts. 2-A, 4, 9 & 199---Objectives Resolution, right of individuals to be dealt in accordance with law; security of person; power of government to take special measures and prescribe regulations as to dangerous epidemic disease---Scope---Petitioner sought declaration to the effect that the Federal and Provincial Governments' decision to impose the condition of having vaccination card for domestic travel, etcetera, without any Act of Parliament to be in violation of Art. 4(2)(c) of the Constitution---Validity---Government was primarily responsible to take care of health of 220 million citizens of Pakistan and hence the desire of one person being petitioner could not supersede the demand of ever-growing spread of pandemic Covid-19---Provincial Government had already taken steps and was monitoring it periodically under the umbrella of Sindh Epidemic Diseases Act, 2014---Section 3 of the Sindh Epidemic Diseases Act, 2014, enabled the government to take strict measure as they deemed fit and proper in case the Provincial Government felt necessity of enforcing prescribed measures to curb the threatened situation---Constitutional petition was dismissed with costs.

Petitioner present in person.

2021 M L D 2106

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

Syed ZAMAN SHAH and others---Applicants

Versus

The STATE---Respondent

1st Criminal Bail Applications Nos.510 and 546 of 2020, decided on 22nd February, 2021.

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

----S.498---Penal Code (XLV of 1860), Ss. 324, 504, 337-A(i), 337-F(i), 337-H(2), 147, 148 & 149---Attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, causing shajjah-i-khafifah, causing damiyah, rash and negligent act, rioting, rioting armed with deadly weapons, unlawful assembly---Pre-arrest bail, grant of---First Information Report showed that there was landed dispute in between the parties and such land was handed over to the accused party by the court in direct criminal complaint 3 & 4 of Illegal Dispossession Act, 2005---Counter FIR of the same incident had also been registered at the same Police Station by the accused against the relatives of the complainant---Facts regarding receiving injuries by the accused party had been concealed by the complainant party in the FIR---All the injuries appeared to be punishable upto seven years and did not fall within the prohibitory clause of S. 497 Cr.P.C.---As to which party was aggressor was yet to be determined---Tentative assessment of material available on record revealed that the accused had made out their case for grant of pre-arrest bail---Accordingly, bail applications were allowed, in circumstances and ad-interim pre-arrest bail earlier granted to the accused was confirmed.

Muhammad Tanveer v. The State and another PLD 2017 SC 733 rel.

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

----Ss.497 & 498---Bail---Deeper appreciation of evidence---Scope---Deeper appreciation of evidence is not permissible at the stage of bail and the same is to be decided tentatively.

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

----Ss.497 & 498---Bail---Tentative assessment---Scope---Observations made in the bail order are tentative in nature only for the purpose of deciding bail applications, which will not in any manner influence the Trial Court at the time of final decision of the case.

Habibullah G. Ghouri for Applicants (in both cases).

Ghulam Rasool Narejo for the Complainant.

Muhammad Noonari, Deputy Prosecutor General for the State.

2021 M L D 4

[Lahore (Rawalpindi Bench)]

Before Sadiq Mahmud Khurram, J

ATTIQUE AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1516/B of 2020, decided on 15th September, 2020.

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

----S. 498---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Pre-arrest bail, grant of---Scope---Accused was alleged to have issued a cheque which was dishonoured on its presentation---Cheque was issued to the complainant for the consideration that he would take back the suit filed by him against the accused and not for repayment of a loan or fulfilment of any monetary obligation---Whether liability of the accused for the alleged offence was punishable under S.489-F, P.P.C. would be determined by the Trial Court after recording of evidence---Investigation of the case had already been concluded---Sending the accused behind the bars would not serve any useful purpose and would cause irreparable loss to his reputation---Petition for grant of pre-arrest bail was allowed, in circumstances.

Khalil Ahmad Soomro and others v. The State PLD 2017 SC 730 rel.

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

----S. 497---Bail---Tentative assessment---Scope---Only tentative assessment of the evidentiary material produced before the court can be made at bail stage.

Mir Muhammad Ghufran Khurshid Imtiazi for Petitioner.

Syed Sajid Hussain Shah for the Complainant/Respondent No.2.

2021 M L D 77

[Lahore]

Before Shahid Waheed, J

SHAHTAJ SUGAR MILLS LIMITED through Ijaz Ahmad Chaudhary and 16 others---Petitioners

Versus

PROVINCE OF THE PUNJAB through Secretary Punjab Food Department and another---Respondents

Writ Petition No. 59541 of 2020, decided on 17th November, 2020.

(a) Administration of justice---

----Good governance---Role of administration---Scope---In a civilized society the administration cannot be a silent spectator to crime or violation of law---Any Public Officer or Authority has inherent power to take all possible steps to check malpractice, undo fraud and implement law in its letter and spirit.

(b) Punjab Sugar Factories (Control) Rules, 1950---

----Rr.14(2) & 16(1)---Constitution of Pakistan, Art. 199---Constitutional petition---Interlocutory order---Collection of information---Petitioners are sugar factories who were aggrieved of direction issued by Cane Commissioner to provide information regarding payment of 11% interest to sugarcane growers on late payments---Validity---No document or evidence was available to establish that through investigation/inquiry by Cane Commissioner, any right or privilege of petitioners was being jeopardized or infringed---Petitioners were anticipating that on the basis of inquiry a penal action would be taken against them---On such apprehension petitioners could not be allowed to maintain petition---Letter or pro forma issued by Cane Commissioner requiring information about payment of cane growers was the first step of inquiry/investigation---Decision of objections to inquiry proceeding was interlocutory order in the nature of a step toward a final order eventually to be passed by Cane Commissioner---High Court declined to interfere in the matter as petition under Art. 199 of the Constitution was not maintainable against intermediate stages or steps of inquiry/investigation---Constitutional petition was dismissed in circumstances.

National Steel Rolling Mills and others v. Province of West Pakistan 1968 SCMR 317 and Virasat Ullah v. Basher Ahmad, Settlement Commissioner (Industries) and another 1969 SCMR 154 rel.

Arshad Nazir Mirza and Barrister Maryam Salman for Petitioners.

2021 M L D 95

[Lahore]

Before Ch. Muhammad Iqbal, J

MUNIR AHMAD and 3 others---Petitioners

Versus

ZAFAR IQBAL and 13 others---Respondents

Civil Revision No. 2556 of 2016, decided on 21st February, 2018.

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

----S. 42---Suit for declaration---Cancellation of mutation---Concurrent findings---Scope---Plaintiffs filed suit for declaration claiming therein that the contesting defendants while showing their father as alive, after the death of their uncle and their father's uncle, both of whom had died issueless, got incorporated bogus inheritance mutations in their favour---Trial Court and appellate court concurrently decreed the suit---Validity---Only the surviving residuary could inherit the estate of the deceased propositus when the succession of deceased was so opened---Contesting defendants had not rebutted the oral as well as documentary evidence and had failed to prove that the mutations were correctly incorporated in the revenue record---Mere oral assertion was not sufficient to rebut the documentary evidence---Petitioners had failed to point out any illegality or material irregularity, misreading and non-reading of evidence in the impugned judgments---Revision petition was dismissed, in circumstances

Mst. Sughra Begum and 4 others v. Mst. Akbari Begum and 5 others PLD 2016 Sindh 232; Mst. Gohar Khanum and others v. Jamila Jan and others 2014 SCMR 801; Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304; Rashid Ahmad v. Said Ahmad 2007 SCMR 926; Asmatullah v. Amanat Ullah through LRs PLD 2003 SC 155 and Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 ref.

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

----Art. 70---Proof of facts by oral evidence---Exclusion of oral evidence by documentary evidence---Scope---Mere oral assertion is not sufficient to rebut the documentary evidence whereas documentary evidence legally takes preference over the oral assertion as the document does not lie---Document can be rebutted by the document having superior legal value.

Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837 and Salem Akhtar v. Nisar Ahmad PLD 2000 Lah. 385 ref.

2021 M L D 114

[Lahore]

Before Syed Shahbaz Ali Rizvi and Asjad Javaid Ghural, JJ

SULEMAN HAIDER and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 63666 and 78845-J of 2019, decided on 17th September, 2020.

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

----Ss. 4 & 5---Pakistan Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to cause explosion or for making or keeping explosive with intent to endanger life or property---Possessing explosives under suspicious circumstances, unlicensed possession of arms, act of terrorism---Appreciation of evidence---Accused was alleged to have been found in possession of non-electric detonator, pistol .30 bore along with magazine and 5 bullets while the co-accused was alleged to have been found in possession of safety fuse and black powder---Prosecution witnesses had remained firm and consistent qua date, time, place, mode and manner of the occurrence and had denied every suggestion put by the defence in negation of the occurrence---Bomb Disposal Technician had reported that the recovered items could be used for blast---Investigating Officer had found the accused persons to be involved in the occurrence---High Court observed that since the accused persons were first offenders and the prosecution had failed to establish their contact with any proscribed organization, therefore, their sentences were reduced---Appeals were dismissed accordingly.

(b) Criminal trial---

----Witness---Police witness---Scope---Evidence of official witnesses is as good as of private witnesses.

Zaka ul Hassan for Appellant (in Criminal Appeal No. 78845-J of 2019).

Nasir Mehboob Tiwana for Appellant (in Criminal Appeal No.63666 of 2019).

Munir Ahmad Sial, Deputy Prosecutor General along with Liaqat Ali, A.S.I. for the State.

2021 M L D 123

[Lahore]

Before Shakil-ur-Rehman Khan, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, FAISALABAD---Petitioner

Versus

MUHAMMAD WALEED---Respondent

Civil Revision No. 27604 of 2020, decided on 16th September, 2020.

Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)---

----Ss. 29 & 31---Suit for declaration and injunction---Date of birth, correction of---Civil Court, jurisdiction of---Scope---Plaintiff sought correction of his date of birth mentioned in his matriculation certificate issued by Board of Intermediate and Secondary Education---Suit and appeal were decreed by Trial Court and Lower Appellate Court respectively in favour of plaintiff---Plea raised by Board was that jurisdiction of Civil Court was barred under Ss.29 & 31 of Punjab Boards of Intermediate and Secondary Education Act, 1976---Validity---Jurisdiction of Civil Court in entertaining suits against acts of Board done in good faith was barred but there was no restriction for filing a suit against the Board where functionaries of Board did not act in good faith---Plaintiff, before institution of suit, approached the Board for correction in his matriculation certificate by depositing requisite fee but his grievance was not redressed and the same was consigned to office on the pretext that plaintiff could not produce any record in support of his claim---Such act of Board was without any legal justification and if grievance of plaintiff was redressed at the level of Board, then he had not approached Court to obtain a decree for correction of his academic certificate---When plaintiff could produce relevant document in support of his stance in his suit before Trial Court then he could have produced the same before the Board---Trial Court had jurisdiction to entertain suit of plaintiff---High Court declined to interfere in concurrent judgments and decrees passed by two courts below---Revision was dismissed, in circumstances.

Board of Intermediate and Secondary Education through Chairman v. Atif Riaz 2006 MLD 1378; Board of Intermediate and Secondary Education through Chairman and 3 others v. Javed Iqbal Bajwa 2005 YLR 2114; Board of Intermediate and Secondary Education, Lahore through Secretary v. Miss Ghazala Roohi 2002 MLD 1966; The Chairman, Board of Intermediate and Secondary Education, Sargodha v. Qaiser lqbal and another 2000 CLC 1322; Ijaz Mehmood v. Board of Intermediate and Secondary Education, Lahore through Chairman 1999 CLC 984; Board of Intermediate and Secondary Education, Lahore through Secretary v. Mst. Sobia Chand 1999 CLC 1166; Government of the Punjab through Secretary, Department of Education, Lahore v. Prof. Mst. Jamida Malik 1991 MLD 824; Chairman, Board of Intermediate and Secondary Education, Multan and others v. Muhammad Shahzad Aslam 2017 CLC Note 200; Hasnain Faraz v. Chairman through B.I.S.E. and others 2011 CLC 265 and Board of Intermediate and Secondary Education, Lahore through Chairman v. Sardar Ghias Gul Khan 2001 YLR 729 ref.

2021 M L D 144

[Lahore]

Before Sadiq Mahmud Khurram, J

KHURSHEED BIBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 21076-B of 2020, decided on 14th May, 2020.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51---Possession of narcotics---Bail, refusal of---Prompt FIR---Heinous nature of offence---Scope---Accused was alleged to have been found in possession of 2420 grams of charas---Sufficient incriminating evidentiary material existed in the shape of a prompt FIR, statements recorded under S. 161, Cr.P.C. and substantial quantity of the recovered contraband, to connect the accused with the alleged offence---Offence with which the accused was charged with being heinous in nature squarely fell within the four corners of the prohibition as contemplated by S. 51 of the Control of Narcotic Substances Act, 1997---Petition for grant of bail was dismissed, in circumstances.

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

----S. 497---Bail---Female accused---Scope---Case of a female falls within the proviso to S. 497(1) of Cr.P.C. but it is not correct to presume that the case of such a person gets equated with the case of a person arrested for a bailable offence or that such person gets clothed with a right to get released on bail---Grant of bail to such a person or refusal thereof still remains within the discretion of the competent court to be exercised judiciously in accordance with the facts of each case and in terms of the principles regulating the same.

Mian Kashif Abbas for Petitioner.

2021 M L D 157

[Lahore]

Before Malik Shahzad Ahmad Khan and Mirza Viqas Rauf, JJ

RIZWAN HASSAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 236319-J of 2018, heard on 19th February, 2020.

Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Pakistan Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 121---Attempt to cause explosion or for making or keeping explosive with intent to endanger life or property---Possessing explosives under suspicious circumstances, unlicensed possession of arms, act of terrorism---Appreciation of evidence---Accused was alleged to have been found in possession of .30 bore pistol and a hand grenade, which was defused on the spot---Evidence of recovery witnesses had remained unshaken during cross-examination and nothing favourable to the accused was brought on record---Prosecution case was corroborated by the report of Bomb Disposal Commander and positive report of Forensic Laboratory---Safe custody of the parcels of defused hand grenade and pistol was proved beyond any shadow of doubt---Burden to prove defence plea under Art. 121 of the Qanun-e-Shahadat, 1984 was upon the accused but no witness was produced to prove that he was abducted by the police prior to registration of FIR---High Court observed that since the prosecution had failed to prove that the accused was a member of proscribed organization and was a previous convict in any other such like case, therefore, his sentences were reduced to the one, which he had already undergone---Appeal was dismissed accordingly.

Nasir Mehboob Tiwana for Appellant.

Jam Khalid Fareed, Assistant Advocate General and Muhammad Moeen Ali, Deputy Prosecutor General for the State.

2021 M L D 166

[Lahore]

Before Malik Shahzad Ahmad Khan , J

MUHAMMAD ASHRAF---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 33182-B of 2020, decided on 22nd September, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 148, 149, 337-A(ii), 337-F(i), 337-F(ii) & 337-L---Attempt to commit qatl-i-amd, rioting armed with deadly weapon, common object, shajjah-i-mudihah, damiyah, mutalahimah---Bail, grant of---Case of cross-versions---Scope---Allegation against accused was that he and co-accused, while armed with different weapons launched an attack upon the complainant party and caused injuries to prosecution witnesses---Accused was assigned the role of making a fire shot at the chest of eye-witness and inflicting butt blow of rifle on the head of another---Present was a case of cross-versions and the accused was also injured---Accused was medically examined on the day of occurrence and as per medico legal report, there was no possibility of fabrication of his injuries---Accused was medically examined through police---Complainant party had not challenged the medico legal report before any higher forum---Members of both the parties were injured during the occurrence, therefore, irrespective of their injuries, it was not determinable at bail stage, as to who started the occurrence---Petition for grant of bail was allowed, in circumstances.

Hamza Ali Hamza and others v. The State 2010 SCMR 1219 rel.

Syed Darbar Ali Shah and others v. The State 2015 SCMR 879; Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and others 2011 SCMR 606; Khalid Mahmood and another v. Muhammad Kashif Rasool and others 2013 SCMR 1415 and Saqib and others v. The State and others 2020 SCMR 677 ref.

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

----S. 497---Bail---Case of cross-versions---Scope---Nature of injuries is not relevant at bail stage, in a case of cross-versions.

Malik Muhammad Akbar Awan for the Petitioner.

Imdad Hussain Chatha, Deputy Prosecutor General with Muhammad Ashraf S.I. for the State.

2021 M L D 183

[Lahore (Bahawalpur Bench)]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

MUHAMMAD SALEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 251 and Murder Reference No. 27 of 2014, heard on 23rd April, 2019.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged that he and co-accused committed murder of the son of complainant by firing---Motive behind the occurrence was that two days prior to the occurrence, accused party intercepted the complainant party whereupon a minor altercation took place between them, the matter was patched up but the accused persons bore grudge in their heart and committed the offence---Ocular account in that case consisted of complainant and four witnesses---First Information Report mentioned joint role of firing to the accused by stating therein that accused and two unknown accused persons made straight firing as a result whereof the pellets hit on forehead, left biceps and left flank of deceased whereas twelve other persons sustained firearm injuries during the incident---Complainant, while appearing before the Trial Court had changed the prosecution story by attributing a specific role to accused which was to the effect that accused started firing which struck on the forehead of his son and left biceps as result of which he fell on the ground---Other two unknown persons also contributed firing as a result of which other persons received injuries---Prosecution, in the FIR as well as before the Trial Court stated that besides deceased, twelve other persons sustained injuries during the incident but the Trial Court had disbelieved the said story of prosecution---Record showed that co-accused, as per testimony of complainant having similar role with that of the accused, had been acquitted by the Trial Court and no appeal against their acquittal was filed either by the State or the complainant---Evidence which had been disbelieved qua the acquitted co-accused could not be believed against the accused---Appeal against conviction was allowed, in circumstances

Shahbaz v. The State 2016 SCMR 1763 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Maxim: "falsus in uno falsus in omnibus"---Applicability---Witness who had told lie about any material fact must be disbelieved as to all other facts by applying Maxim: "falsus in uno falsus in omnibus".

(c) Criminal trial---

----Witness---Injured witness---Statement of injured witness---Scope---Argument that presence of injured witness could not be doubted at the place of occurrence due to the injuries on their person had no substance because merely the injury on the body of a person would not stamp him/her truthful witness.

Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----Ss. 302, 324 & 34---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Withholding of material evidence---Scope---Accused was charged that he and co-accused committed murder of the son of complainant by firing---In the present case, allegedly nine persons who sustained injuries during the incident and a driver driving the tractor at the time of incident were the material witnesses of occurrence but they were not produced by the prosecution during the trial---Prosecution withheld the best available evidence and in view of Art. 129(g) of Qanun-e-Shahadat, 1984, adverse inference that had those witnesses been produced before the Trial Court they would not have supported the prosecution case, could safely be drawn against the prosecution---Evidence furnished by all the eye-witnesses, therefore, were shaky in nature and could not be relied upon by maintaining the conviction/sentence of the accused---Appeal against conviction was allowed, in circumstances

Lal Khan v. The State 2006 SCMR 1846 and Muhammad Rafique and others v. The State and others 2010 SCMR 385 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Motive was not proved---Scope---Accused was charged that he and co-accused committed murder of the son of complainant by firing---Motive behind the occurrence was that two days prior to the occurrence accused persons intercepted the complainant party whereupon a minor altercation took place between them---Matter was patched up but the accused persons bore grudge in their heart---No exact date, time and place of motive incident had been mentioned in the FIR---Incident of motive was not reported to the police---No solid/convincing evidence qua motive incident had been brought on record---No independent witness qua motive was associated by police during investigation or produced before the Trial Court by the prosecution---Prosecution thus, had failed to prove motive against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence at the instance of accused---Reliance---Scope---Accused was charged that he and co-accused committed murder of the son of complainant by firing---Record showed that pump action 12 bore gun was recovered at the instance of accused---Said recovery was immaterial because report of Forensic Science Agency qua said weapon was in the negative---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Contradiction in ocular and medical evidence---Scope---Accused was charged that he and co-accused committed murder of the son of complainant by firing---Ocular account was in direct conflict with the medical evidence because in the FIR it was the case of prosecution that the accused along with his co-accused made firing and the pellets landed on the forehead, left biceps and left flank of deceased but while appearing before the Trial Court all the witnesses of ocular account except one did not assign any injury to the accused and his co-accused on left flank of deceased---Appeal against conviction was allowed, in circumstances.

(h) Criminal trial---

----Medical evidence---Scope---Medical evidence could only confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but would not tell the name of the assailants.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

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

----Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), Ss. 342 & 340(2)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence----Plea taken by the accused in his statement recorded under Ss. 342 & 340(2), Cr.P.C.---Scope---Accused and co-accused were charged for committing murder of the son of complainant by firing---Accused had taken specific plea in his statements under Ss. 342 & 340(2), Cr.P.C., that in his self defence he made firing upon the complainant party---If the prosecution failed to prove its case against an accused person then the accused person was to be acquitted even if he had taken a plea and had thereby admitted killing the deceased---Prosecution had to prove its case against the accused by standing on its own legs and it could not take any benefit from the weaknesses of the case of the defence---In the present case, the prosecution failed to discharge its responsibility of proving the case against the accused---Appeal against conviction was allowed, in circumstances.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

(j) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance which created doubt regarding the prosecution case, the same would be sufficient to give benefit of doubt to the accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Farooq Haider Malik, Defence Counsel appointed at State expense.

Ch. Asghar Ali Gill, Deputy Prosecutor General for the State.

Syed Zeeshan Haider for the Complainant.

2021 M L D 223

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Anwarul Haq Pannu, JJ

ABDUL QADIR---Appellant

Versus

The STATE and 4 others---Respondents

I.C.A. No.38 of 2020, heard on 3rd December, 2020.

Law Reforms Ordinance (XII of 1972)---

----S.3----Constitution of Pakistan, Art. 199---Intra-court appeal---Jurisdiction conferred under S.3 of Law Reforms Ordinance, 1972---Scope---"Intra-court appeal barred in certain cases"---Scope---Appellant impugned order passed in Constitutional petition whereby criminal proceedings against respondent were quashed and respondent was allowed to be released on bail---Contention of respondent, inter alia, was that intra-court appeal against such order was not maintainable---Validity----In order to determine forum of appeal, courts must look to the nature of proceedings in which impugned order sought to be appealed, had been made---Proceedings in which impugned order, in the present case, was passed were criminal in nature, therefore intra-court appeal under S.3 of Law Reforms Ordinance, 1972 was not maintainable----Intra-court appeal was dismissed, in circumstances.

Tata Iron and Steel Company Ltd. v. The Chief Revenue Authority of Bombay AIR 1923 PC 148; Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar, High Court of West Pakistan, Lahore and others PLD 1968 SC 171; Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. PLD 1993 SC 109; Brother Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543; Re Clifford and O'Sullivan, [1921] 2 AC 570; Ex Parte Tom Tong 108 U.S. 556 (1883); Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government (1943) AC 147; Regina v. Governor of Brixton Prison, Ex parte Levin (1997) UKHL 27; Regina on the Application of South West Yorkshire Mental Health NHS Trust v. Crown Court at Bradford (2004) 1 All ER 1311; Day v. Grant (Note) CA (1987) QB 972; Regina v. Parole Board ex parte Smith, Regina v. Parole Board ex parte West (Conjoined Appeals) (2005) UKHL 1; Regina v. Crown Court at Manchester Ex parte McCann and others (2002) UKHL 39; Guardian News and Media Ltd., Regina (on The Application of) v. City of Westminster Magistrates' Court and another (2011) EWCA Civ 1188; Regina v. Southampton Justices ex parte Green (1976) QB 11; George Tan Soon Gin v. Judge Cameron (1992) 2 AC 205 and The Province of Balochistan through Home Secretary v. Sher Mohammad Marri PLD 1975 Lah. 1372 rel.

Tahir Mehmood assisted by Malik Muhammad Yousaf Arain for Appellant.

Waseem-ud-Din Mumtaz, Assistant Advocate General with Aziz Ullah/SI for the State.

Mian Abbas Ahmad assisted by Muhammad Nasir Sikhani for Respondents Nos.4 and 5.

2021 M L D 252

[Lahore]

Before Atir Mahmood and Muhammad Ameer Bhatti, JJ

SHUMAIL WAHEED---Appellant

Versus

RABIA KHAN---Respondent

R.F.A. No.764 of 2011, heard on 24th September, 2020.

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

----Ss.3 & 12---Defamation, Suit for---Period of limitation---Scope---Appellant impugned the vires of judgment handed down by Trial Court to the effect that the plaint instituted by the appellant was beyond the limitation period---Validity---Filing of suit within a period of six months after publication of defamatory matter coming to the knowledge of a person so defamed was clear and obvious from S.12 of the Defamation Ordinance, 2002---Notice, in the present case, was issued in the month of April whereas suit was filed in the month of November---Suit was filed beyond the period of limitation and since the appellant had not explained any good cause to rationalize the delay on his part nor had he sought the relief for condoning the delay by rendering explanation as to why he took such time, which precluded him from having recourse to the legal remedy, therefore, recording of evidence was not mandatory---When averments of the plaint were silent regarding the factum of suit being barred by limitation then recording of evidence could not be permitted---Plaint did not disclose any disputed question of fact for application of mixed question of fact and law nor was there any factual controversy as to the limitation period, to be set at rest in the suit---Appeal having no force was dismissed, in circumstance.

Muhammad Asif and others v. State Life Insurance Corporation of Pakistan through Chairman and another 2018 CLD 239 and Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910 ref.

Muhammad Khan v. Muhammad Amin through L.Rs. and others 2008 SCMR 913 rel.

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

----S.8---Defamation---Notice of action---Purpose---Scope---Rationale underlying the notice is to provide information with respect to the alleged action, infringement brought about by defendant and quantum of claim/damages---Mere dispatching the notice in a mechanical manner without disclosure of essential ingredients such as specific date of plaintiff's knowledge about the defamatory remarks, its source, the precise contents of defamatory remarks and explicit monetary claim, would not suffice as it could not be a true demonstration of the objective compliance of the constant principle underlying law nor could it serve the purpose in a beneficial manner---Foremost purpose to serve the notice was to facilitate the recipient to reconsider his remarks for withdrawal/abandonment thereof and thereby to avail such opportunity for settlement of the dispute, if so advised, without recourse to the trouble and cost of litigation.

(c) Limitation---

----Question of limitation is not always a mixed question of fact and law; it varies according to the circumstances averred in the plaint---If a bare reading of plaint does not give rise to any factual probe and no disputed question of facts regarding a precise date of acquisition of knowledge exist nor is there any explanation for its filing with delay forthcoming on the record, in such eventuality, there is no need to frame issue and record evidence and it is liable to be construed as a pure question of law---Disputed facts in respect of date of knowledge may call for recording of evidence as a mixed question of fact and law.

Jan Muhammad and others v. Mst. Sakina Bibi and others PLD 2017 SC 158; Mrs. Akram Yaseen and others v. Asif Yaseen and others 2013 SCMR 1099; Muhammad Ilyas and others v. Khadim Hussain and others 2006 SCMR 1761; Nazar Gul v. Islam and 3 others 1998 SCMR 1223; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Shahid Israr v. Mst. Maryam Bibi PLD 2009 Lah. 119 and Muhammad Akram v. Aurangzeb and another 1989 CLC 1405 rel.

(d) Pleadings---

----No evidence beyond the scope of pleadings is permissible---Even if it has been led by a party, the court shall exclude and ignore such evidence from consideration.

Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 SC 338; Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74; Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others 2015 SMCR 1698; Abrar Ahmed and another v. Irshad Ahmed PLD 2014 SC 331; Messrs Essa Engineering Company (Pvt.) Ltd. and another v. Pakistan Telecommunication Company Limited and another 2014 SCMR 922 = 2014 CLD 625; Wasi-ud-Din v. Fakhra Akhter and 4 others 2011 SCMR 1550 and Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74 rel.

Syed Shahab Qutub and Ali Zahid Rahim for Appellant.

Ms. Hina Bandealy for Respondent.

2021 M L D 275

[Lahore]

Before Masud Abid Naqvi, J

MUHAMMAD KASHIF---Petitioner

Versus

DEFENCE HOUSING AUTHORITY and others---Respondents

Writ Petition No.22681 of 2017, decided on 7th October, 2020.

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

----S.42---Sale mutation---Nature of mutation---Mutation per se was not a document of title and was meant for fiscal purpose only.

Ghulam Sarwar (deceased) through LRs and others v. Ghulam Sakina 2019 SCMR 567 rel.

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

----O.VII R.11---Rejection of plaint---Adjudication of application under O.VII, R.11, C.P.C.---Exercise of powers under O.VII, R.11, C.P.C.---Scope---As soon as a cause for rejection of plaint under O.VII, R.11, C.P.C. appeared, plaint should be rejected straightaway by Trial Court and such suit should be taken off the file at very inception---In such a case, defendant should be relieved of vexatious litigation by discussion of averments of plaint along with other material on record by Trial Court, which on their own strength were legally sufficient to completely refute claim of defendant.

S.M. Sham Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338 and Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371 ref.

Azam Jan Muhammad for Petitioner.

2021 M L D 301

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

AHMED HASSAN SHERAZ---Petitioner

Versus

FEDERATION OF PAKISTAN, PRESIDENT'S SECRETARIAT (PUBLIC), ISLAMABAD through Director (Legal) and others---Respondents

Writ Petition No.24908 of 2017, decided on 4th November, 2020.

Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)---

----Arts.9 & 2(2)---Jurisdiction, functions and powers of the Mohtasib---Scope---Petitioner assailed vires of order passed by President whereby representation of respondent against decision of Federal Ombudsman was accepted and his order was set aside on the ground that the contractual matters did not come within the domain of Federal Ombudsman---Validity---No provision either of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 or of any other law took a matter out of the jurisdiction of the Mohtasib only because the same related to a contractual obligation---Impugned order was declared to be illegal and without lawful authority---Constitutional petition was disposed of accordingly.

Capital Development Authority through Chairman and another v. Zahid Iqbal and another PLD 2004 SC 99 fol.

Liaquat Ali Butt for Petitioner.

2021 M L D 313

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD ISRAFEEL and others---Petitioners

Versus

The PROVINCE OF PUNJAB and others---Respondents

Writ Petition No. 35693 of 2020, decided on 13th August, 2020.

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

----S. 10(2)---State Gharagah land---Disposal of such land---Procedure---Approbate reprobate, principle of---Petitioners were lessee of State Charagah land and they were aggrieved of Notification issued by Government of Punjab to allot the land in open auction---Validity---Land situated within prohibited zone or State Charagah land could only be given on lease under Temporary Cultivation Lease Scheme only through auction for specific period---After lapse of stipulated lease period lessee was duty bound to peacefully vacate/surrender possession of land in favour of State---Such area/land could not be disposed of permanently as those were valuable lands and were generally to be kept reserved for expansion of towns and other urban requirements---Petitioners availed benefits of Statements of Conditions of Lease issued from time to time by Government of Punjab under S.10(2) of Colonization of Government Lands (Punjab) Act, 1912---Petitioners could not challenge vires of Notification in question---Case of petitioner was hit by principle of "approbate and reprobate"---High Court declined to interfere in the matter as land in question fell within the prohibited zone or it was a State Charagah land and petitioners failed to establish any right and also failed to point out any illegality and perversity in the policy---Petition was dismissed, in circumstances.

A.R. Khan v. P.N. Boga through Legal Heir PLD 1987 SC 107; Messrs Home Comforts v. Mirza Rashid Baig and others 1992 SCMR 1290; Federation of Pakistan v. Amir Hamza 2001 SCMR 1959; Noor Muhammad, Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore and others 2003 SCMR 708; Overseas Pakistanis Foundation and others v. Spn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another 2007 SCMR 569; Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 and Commissioner Multan Division, Multan and others v. Muhammad Hussain and others 2015 SCMR 58 ref.

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

----S. 10(2)---Grant of State Charagah land---Principle---Nature of land, changing of---Jurisdiction---Gharagah lands / State lands have expressly been excluded from every grant / allotment---Such alienation or grant of proprietary rights are not in consonance with the policies---Charagah land cannot be converted into State Land for its onward allotment against any sort of claim and the same cannot be used for any other alternative purpose except with the prior permission of Board of Revenue---Any change of character of Charagah Land is only subservient to any manifestly described wider scope of glorified 'public purpose' which change of character / nature of Charagah is only vested with Board of Revenue who has to objectively ascertain "public purpose" with judicious application of mind by demonstrating all superior objectives of "public purpose", otherwise character of such land cannot be modified as per policy on the subject.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Policy of government---Judicial review---Principle---Policy can only be called in question before High Court through Constitutional jurisdiction on the grounds:

(i) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.

(ii) The change in policy must be made fairly and should not give impression that it was so done arbitrarily on any ulterior intention.

(iii) The policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc.

(iv) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.

(v) It is dehors the provisions of the Act or legislations.

(vi) If the delegate has acted beyond its power of delegation.

High Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution may annul an order or a policy framed by the Executive, if it is proved to be violative of law and Constitution and is product of mala fides. [p. 333] D & E

Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Messrs Power Construction Corporation of China Ltd. through Authorized Representative v. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others PLD 2017 SC 83; Dr. Akhtar Hassan Khan others v. Federation of Pakistan and others 2012 SCMR 455; JDW Sugar Mills Ltd. and others v. Province of Punjab and others PLD 2017 Lah. 68; Advocate Mian Asif Mehmood v. Federation of Pakistan through Principal Secretary and 2 others 2019 MLD 1210 and Jurists Foundation through Chairman v. Federal Government through Secretary, Ministry of Defence and others PLD 2020 SC 1 rel.

Malik Muhammad Arshad Kundi for Petitioners, Ghulam Rasool Sial for Petitioners (in Writ Petition No.35654 of 2020), Maqsood Ahmad for Petitioners (in Writ Petition No.35405 of 2020), Malik Sarbuland Naich for Petitioner (in Writ Petition No.35573 of 2020), Imtiaz Hussain Khan for Petitioner (in Writ Petition No.35714 of 2020), Ch. Mujtaba Hassan Tatla for Petitioners (in Writ Petition No.35733 of 2020), Ch. Abdul Ghaffar for Petitioners (in Writ Petition No.35603 of 2020), Abdul Razzaq Chadhar for Petitioner (in Writ Petition No.35622 of 2020), Azmat Mustafa Khan Lodhi for Petitioners (in Writ Petitions Nos.35785 and 35961 of 2020), Sameer Ijaz for Petitioners (in Writ Petition No.35860 of 2020), Imtiaz Ahmed Khan for Petitioners (in Writ Petitions Nos.36001, 36002, 36003 and 36004 of 2020), Malik Shehzad Fida Kamboh for Petitioner (in Writ Petitions Nos.35999 and 36000 of 2020), Ch. Haroon-ur-Rasheed Gujjar for Petitioner (in Writ Petition Nos.35502, 35525, 35490, 35491, 35492, 35495, 35498, 35499 of 2020).

2021 M L D 354

[Lahore]

Before Shahid Waheed and Ch. Muhammad Iqbal, JJ

NADEEM AHMAD---Appellant

Versus

SAIF-UR-REHMAN and 8 others---Respondents

R.F.A. No. 29853 of 2019, heard on 11th November, 2020.

(a) Malicious prosecution---

----Reputation and dignity of man---Safeguard---Object of law is to prevent the evil, that is to say, the commission of crime so as to safeguard reputation and dignity of man---Such is possible only when a duty is laid on citizen to state to the authorities what he knows respecting the commission of crime---Duty is thus a primary concept, indeed the main focus of law, which often takes priority over right---For the sake of public justice, charges and communications which would otherwise be slanderous and actionable, are protected if bona fide for prevention of crime.

(b) Malicious prosecution---

----False implication---Impact---Innocent stigmatized by false implication has to carry such irreparable stigma throughout his life span and its shadow on his next generation also leave dark impressions---People make false accusation for having feeling of enmity towards someone being jealous, getting rid of someone, taking revenge or attaining cheap fame---Such people after making false accusation become busy with their matters but the person against whom false accusation has been made falls into disgrace and infamy for the rest of his life.

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

----O.VII, R.11---Suit for recovery of damages---Malicious prosecution---Rejection of plaint---Cause of action absence of---Framing of issues---Criminal case registered against plaintiff was cancelled by police during investigation---Trial Court after framing of issues rejected plaint summarily without recording of evidence on the plea that plaintiff did not face prosecution---Validity---Principle governing such type of circumstances was that where issues were framed, parties must be allowed to lead evidence and plaint could not be summarily rejected---Trial Court did not take such principle into account and without recording evidence granted application stating its finding on preliminary issues and rejected the plaint under O.VII, R.11, C.P.C.---Such judgment and decree passed by Trial Court was not outcome of fair trial as neither justice was done nor it seemed to have been done---High Court set aside judgment and decree passed by Trial Court and remanded same for decision afresh on merits after recording of evidence on issues already framed---Appeal was allowed, in circumstances.

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

----Ss. 70 & 70-A---Jurisdiction of Civil Court---Principle---Where controversy involved in matter does not pertain to affairs of society there compliance with the provisions of Ss.70 & 70-A of Co-operative Societies Act, 1925, is not called for.

(e) Malicious prosecution---

----Term "prosecution"---Scope---Foundation of action for damages for malicious prosecution lies not in abuse of process of Court but in abuse of process of law.

Pandit Gaya Parshad Tewari v. Sardar Bhagat Singh and another 35 IA 189; C.H.Crowdy v. L.O.Reilly (1912) 17 CWN 555; Narendra Nath De v. Jyotish Chandra Pal (1922) ILR 49 Cal 1035; Balbhaddar Singh and another v. Badri Sah and another AIR 1926 PC 46; Gur Saran Dass v. Israr Haider (1927) ILR 2 Luck 746; Rabindra Nath Das v. Jogendra Nath Deb (1928) ILR 56 Cal 432; Nayeb Ali Dafadar v. Abdul Gani alias Gutu MIA PLD 1969 Dacca 985; Pandit Gaya Parshad Tewari v. Sardar Bhagat Singh and another 35 IA 189 and Niaz and others v. Abdul Sattar and others PLD 2006 SC 432 rel.

Muhammad Javaid Iqbal Qureshi for Appellant.

Iftikhar Ahmad Mian and Hassan Raza Sheikh for Respondents Nos. 1 to 8.

Raja Muhammad Arif, Addl. Advocate General for Respondent No.9.

2021 M L D 370

[Lahore]

Before Jawad Hassan, J

Mian ALI ASGHAR---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No.68942 of 2019, heard on 9th December, 2020.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Scope---Petitioners sought directions to the authorities to implement policy/notification whereby certain area of provincial capital was declared to be red zone---High Court while allowing constitutional petitions directed the Government Departments performing their functions within its jurisdiction in connection with the affairs of Province (of Punjab) and other local authorities under the laws, that; (i) the Punjab High Security Zones (Establishment) Act, 2020, once enacted, shall be implemented in letter and spirit in order to protect the lives of the citizens; (ii) all the departments shall take steps to protect, manage and control law and order situation in the Province; (iii) the Departments shall, through the media and other means, inform the public and create awareness, including of lodging a complaint for any violation of the law; and (iv) the Pakistan Electronic Media Regulatory Authority (PEMRA) and the State Functionaries shall also comply with the order passed in W.P. No. 13302 of 2018, dated 17-01-2018, for smooth running of traffic as well as opening of educational institutions, shops of the traders and offices---Constitutional petition was disposed of accordingly.

National Bank of Pakistan v. Iftikhar Rasool Anjum and others 2017 PLC (C.S.) 453 and Bahadur Khan and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and others 2017 SCMR 2066 ref.

Mian Ali Asghar v. Government of the Punjab and others 2020 CLC 157 and Naimatullah Khan Advocate and others v. Federation of Pakistan and others 2020 SCMR 622 rel.

(b) Constitution of Pakistan---

----Art. 5---Loyalty to State and obedience to Constitution and law---Scope---Every citizen/ protestors/ strike holders were inviolably bound to obey command of the Constitution, the law and the policies made by the Government---Word "inviolable" used in Art. 5(2) of the Constitution means that it is never to be broken and infringed, wihch also includes principles of natural justice, procedural fairness and procedural propriety---Laws are always made not to be violated but to be obeyed.

President Balochistan High Court Bar Association and others v. Federation of Pakistan and others 2012 SCMR 1784 and Suo Motu Case No.15 of 2009 PLD 2012 SC 610 rel.

(c) Constitution of Pakistan---

----Art.5---Loyalty to State and obedience to Constitution and law---Scope---Every citizen has to adhere to the law and policies issued from time to time by the Government which are binding on every citizen under the Doctrine of Sovereignty.

Dewan Salman Fibber Ltd. and others v. Federation of Pakistan, through Secretary, Ministry of Finance and others 2015 PTD 2304 and Mst. Fatima Faryad and others v. Government of Punjab and others 2020 CLC 836 rel.

Muhammad Azhar Siddique, ASC and Aqsa Jabeen for Petitioner.

Javed Anwar Janjua for Petitioner (in Writ Petition No.45254 of 2019).

Barrister Umair Khan Niazi, Additional Advocate-General, Hassan Khalid Ranjha, Assistant Advocate General with Ahmad Bilal, S.O. (IS-II), Home Department, Government of Punjab, Lahore, Hussain Bahadur, Additional Secretary (IS), Home Department, Government of Punjab and Ashfaq Ahmad Khan, DIG (Operations), Lahore for Respondents.

Usama Khawar Ghumman and Rehman Aziz for Respondent No.9/PEMRA.

2021 M L D 442

[Lahore]

Before Masud Abid Naqvi and Jawad Hassan, JJ

KHAWAR HUSSAIN----Appellant

Versus

GOVERNMENT OF PUNJAB and others----Respondents

Intra Court Appeal No.16473 of 2020, decided on 24th November, 2020.

Educational Institution---

----Appellant assailed order passed by Single Judge of High Court whereby authorities were inter alia, directed to set up "complaints cell" to deal with future grievances of the parents about schools, tuition fee etc of their children---Held, if the appellant had any grievance, he could approach the complaint cell constituted by the authorities for redressal of his grievance---No reason or justification existed to interfere in the impugned order---Appeal was dismissed.

Nabeel Akhtar Chaudhry and others v. Lahore Development Authority and 5 others 2017 CLC 561 ref.

Rana Sher Afzal for Appellant.

021 M L D 453

[Lahore]

Before Shahid Bilal Hassan and Ayesha A. Malik, JJ

PAKISTAN ENGINEERING COUNCIL---Appellant

Versus

FEDERATION OF PAKISTAN and others---Respondents

I.C.A. No.33510 of 2019, decided on 30th November, 2020.

(a) Pakistan Engineering Council Act, 1975 (V of 1976)---

----S.25A---Pakistan Engineering Council Regulations for Engineering Education in Pakistan, Regls. 2(a)(i) & 2(c)(i)---Constitution of Pakistan, Art.25---Fixation of a 2% quota for holders of Diploma of Associate Engineer (DAE) for admission in B.Sc. Engineering---Whether fixation of such quota was not legal and also discriminatory---Regulating authority for the purposes of admission in an engineering program was the Pakistan Engineering Council ('the Council'), which was duly authorized under the law as well as under the Pakistan Engineering Council Regulations for Engineering Education in Pakistan ('the Regulations') to determine the admission criteria---As far as the fixation of a 2% limit/quota was concerned, the Council on the basis of facts and deliberation in a meeting duly considered the issue pertaining to the DAE examination, the equivalence given by the Inter Board Committee of Chairmen ("IBCC") and by the Punjab Board of Technical Education ("PBTE") and decided to streamline the exercise of discretion by the different universities and colleges, so as to ensure that not more than 2% candidates holding DAE were given admission against the reserved seats---Council by way of quantifying the reserved seats had not acted in contravention to the Pakistan Engineering Council Act, 1976 or the Regulations or acted discriminately---Intra-Court Appeals were allowed and impugned judgment of Single Bench of High Court was set-aside.

Section 25A of the Pakistan Engineering Council Act, 1976 ('the 1976 Act') gave the Governing Body of the Pakistan Engineering Council ('the Council') the power to make regulations which included the power to make regulations stipulating the minimum qualifications for admission to engineering institutions and laying down the minimum standard for allowing admission for examinations. Pursuant to section 25A of the 1976 Act, the Council issued the Pakistan Engineering Council Regulations for Engineering Education in Pakistan ('the Regulations'). Article 2 of the said Regulations provided for the minimum qualification for admission to Engineering Bachelor's Degree Programmes offered by Engineering institutions and universities. Article 2(a)(i) of the Regulations provided for the requirement of a Higher Secondary School Certificate, Pre-Engineering Examination with Physics, Chemistry and Mathematics as the basic criteria for admission in the B.Sc Engineering program. This meant that F.Sc was the criteria for admission in B.Sc Engineering. Article 2(c)(i) of the Regulations provided that a candidate who had passed the Diploma of Associate Engineer (DAE) examination, securing at least 60% aggregate marks shall be eligible for applying in admission against reserved seats in relevant discipline of engineering in which he or she had passed the DAE examination and the relevancy of DAE would be determined by the Accreditation Committee of the Council. In terms of the Regulations for the purposes of DAE examination, the Regulations originally provided that the DAE candidate, who secured at least 60% aggregate marks would be eligible to apply for admission against reserved seats, however the number of seats was not quantified. This Regulation was amended vide SRO 417(I)/2016 dated 14-05-2016 such that the Regulation inserted 2% limit on the DAE candidates against reserved seats. This meant that although originally a DAE candidate was eligible against reserved seats, the Council quantified a 2% limit for all colleges and universities against the reserved seats.

The issue of the 2% quota for the reserved seats was considered in a meeting held by the Council in which it was discussed that engineering universities as a special provision allowed DAE students admission if they had the aggregate marks, however, since the DAE students did not study the subjects of physic, chemistry and mathematics in the rigorous manner as the F.Sc students, the Council decided to regulate the discretion to admit against reserved seats by the universities by way of a 2% limit for reserved seats for all universities.

For the purposes of Regulation 2(c) of the Regulations, DAE candidates were always considered against reserved seats. The argument that since DAE was equivalent to F.Sc, hence students holding the said qualification were entitled to be considered as F.Sc candidates was without basis as the admission of DAE candidates was always limited to reserved seats stipulated by the relevant university. The Single Bench of the High Court) while considering the 2% limit failed to take into consideration Regulation 2(c) of the Regulations which by itself, in its original form had limited the admission of the DAE candidate against reserved seats. Therefore, even with the abolishment of the 2% limit, the holders of DAE qualification were not entitled to admission in B.Sc Engineering program on the basis of DAE being equivalent to F.Sc as their admission was subject to the number of reserved seats in the respective colleges/universities.

Respondents failed to make out a case of discrimination or unreasonable classification as the original Regulations limited their admission against reserved seats and by way of fixing the number of reserved seats to a 2% no discrimination was made out.

Reliance of the Single Bench (of the High Court) on the equivalence given by the Inter Board Committee of Chairmen ("IBCC") and by the Punjab Board of Technical Education ("PBTE") was without basis as the equivalence granted by both these independent institutions was not relevant for the purposes of admission in the engineering program. The regulating authority for the purposes of admission in an engineering program was the Council, which was duly authorized under the law as well as under the Regulations to determine the admission criteria. Council by way of quantifying the reserved seats had not acted in contravention to the 1976 Act or the Regulations or acted discriminately. Intra-Court Appeals were allowed and impugned judgment of Single Bench of High Court was set-aside.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of the High Court---Scope---Policy decision made by a professional regulatory body in accordance with law---High Court could not interfere with such a policy decision in its constitutional jurisdiction.

Mian Muhammad Wasim, Umer Ijaz Gilani, Usama Khawar and Ms. Ruqia Ismail with Shah Jahan Khaltak, Deputy Registrar, PEC Head Quarter, Islamabad for Appellant.

Malik Sohail Murshad for Respondent No.3, Punjab Technical Board.

Barrister Haris Azmat and Barrister Maryam Hayat for Respondent No.4 College.

Barrister Hamid Azim Laghari, Muhammad Qasim Tarar and Rafae Naguib Saigal for Respondent No.5 (Student).

Mrs. Ambreen Moeen, Deputy Attorney General.

Akhtar Javed, Additional Advocate-General.

2021 M L D 490

[Lahore]

Before Masud Abid Naqvi and Jawad Hassan, JJ

Mst. RUBINA ADNAN---Petitioner

Versus

MUHAMMAD HASSAN JAMAL ILYAS and others---Respondents

Regular First Appeal No.1145 of 2016, decided on 9th November, 2020.

Malicious prosecution---

----Suit for damages---Non-appearance of plaintiff as witness---Scope---Appellant assailed the dismissal of her suit wherein she had claimed damages in respect of false and frivolous suits filed by the respondents coupled with mental torture and tensions, etc---Validity---Appellant had claimed Rs.80 million as damages yet not produced any documentary proof or details of damages caused to her rather only produced documents in respect of pending litigation between the parties---Apart from other questions of fact the suit was liable to be dismissed on the ground that the appellant herself had not opted to appear before the trial court as witness to prove the contents of plaint---Only appellant could have personally deposed about the alleged damage caused to her reputation while the attorney could not depose about the personal feelings of the appellant---Trial Court while dismissing the suit for damages had rightly observed that the essential ingredients i.e. termination of proceedings in favour of plaintiff, initiation of proceedings without probable cause and causing damages to the appellant were missing---Appeal was dismissed.

Muhammad Akram v. Mst. Farman Bibi PLD 1990 SC 28 and Messrs Mehran Electronics Company through Partner v. National Bank of Pakistan 2017 CLD 1642 rel.

Syed Muhammad Shah for Appellant.

2021 M L D 504

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Sadiq Mahmud Khurram, JJ

MUHAMMAD SHER AWAN----Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Lahore and 6 others----Respondents

Intra Court Appeal No.81 in Writ Petition No.1361 of 2020, decided on 17th November, 2020.

Law Reforms Ordinance (XII of 1972)---

----S.3(3)---Intra Court Appeal---Maintainability---Interlocutory order---Scope---Finality of order---Determining factors---Appellant was aggrieved of order passed by Single Judge of High Court recalling its earlier order passed at interim stage---Validity---Test to determine finality of an order was whether judgment or order had finally disposed of rights of parties---Finality was to be a finality in relation to the suit---If after the order, suit was alive in which rights of parties were yet to be determined, no appeal lied against such order---Order which decided an important and even vital issue was by itself not material---If decision on an issue put an end to suit, such order was a final one but if suit was still alive and was to be tried in ordinary way, no finality was attached to such order---Order passed by Single Judge of High Court in Constitutional petition was an interim or interlocutory order which did not have effect of disposing of entire case put up before High Court--- Division Bench of High Court declined to interfere in order passed by Single Judge of High Court as jurisdiction was barred under S.3(3) of Law Reforms Ordinance, 1972---Intra Court Appeal was dismissed, in circumstances.

Concise Oxford English Dictionary; Black's Law Dictionary Fifth Edition; Words and Phrases by Mian Muhibullah Kakakhel; Sultan Singh v. Murli Dhar and others AIR 1924 Lahore 571; V.M. Abdul Rahman and others v. D.K. Cassim and Sons and others (AIR 1933 Privy Council 58; Savitri Devi v. Rajul Devi and others AIR 1961 Allah. 245; Messrs National Security Insurance Co. Ltd. v. Messrs Hoechst Pakistan Ltd. and others PLD 1990 SC 709 and Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263 ref.

2021 M L D 564

[Lahore]

Before Muhammad Qasim Khan, J

MUHAMMAD RIAZ---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No.204172-Q of 2018, decided on 26th April, 2018.

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

----Ss.44 & 154---Quashing of FIR---Scope---Petitioners sought quashing of FIR registered under Ss. 420, 460 & 471, P.P.C., on the ground that FIR did not disclose commission of a cognizable offence; that the complainant had tried to convert civil litigation into criminal dispute and that the complainant could not have got the FIR lodged in the light of S. 44, Cr.P.C.---Held; criminal and civil litigation could proceed simultaneously---Section 44, Cr.P.C., was a special clause binding every person to provide information but did not bar that only the aggrieved person or a directly affected person could get the FIR lodged---Section 154, Cr.P.C., not only had much broader scope and implications but the same also was not to be considered as subservient to S.44, Cr.P.C.---Section 44, Cr.P.C., on the face of it placed an obligation only on the persons who became aware of the commission or intention of commission of certain offences, that they shall lay information to the concerned authorities and if he did not do so, then obligation would be on that person to come out with a reasonable excuse for his inaction in the above terms, whereas, S.154, Cr.P.C., comparatively carried large connotations as it covered every information, not limited to the specific sections, as had been done in S.44, Cr.P.C.---Both Ss.44 & 154, Cr.P.C., were meant to set the criminal law into motion to furnish legal basis for conducting investigation in a case of commission of cognizable offence---Constitutional petition was dismissed, in circumstances.

Ch. Muhammad Aslam v. C.P.O. Rawalpindi and others 2011 PCr.LJ 1870 ref.

Seema Fareed and others v. The State and another 2008 SCMR 839 and Col. Subah Sadiq v. M. Ashiq and others 2006 SCMR 276 rel.

(b) Criminal trial---

---Civil and criminal litigation simultaneously---Scope---Criminal and civil litigation can proceed simultaneously, however, there exists only one probability that the decision of the civil suit has direct bearing on the criminal trial, then at the most proceedings in the criminal case can be stayed to wait for the ultimate fate of the civil suit.

Seema Fareed and others v. The State and another 2008 SCMR 839 rel.

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

----S.44---Public to give information of certain offences---Scope---Section 44, Cr.P.C., only binds "every person" that sooner he becomes aware of the commission or even intention of other person to commit any offence punishable under S.44, Cr.P.C., he shall forthwith give information to the nearest Magistrate, Justice of the Peace, or police officer of such commission or intention.

2021 M L D 608

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Syed IFTIKHAR HUSSAIN SHAH----Appellant

Versus

MUHAMMAD SHARIF----Respondent

R.S.A. No.98 of 2011, heard on 21st December, 2020.

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

----S.42--- Mutation--- Scope--- Mutation per se is not deed of title and party relying upon its entries is always bound to prove transaction reflected therein.

Gangabai and others v. Fakirgowda Somaypagowda Desai and others AIR 1930 PC 93; Durga Prasad and another v. Ghanshiam Das and others AIR (35) 1948 PC 210; Muhammad and others v. Sardul PLD 1965 Lah. 472; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; M. Malik v. Mst. Razia PLD 1988 Lah. 45; Ali Muhammad and others v. Chief Settlement and Rehabilitation Commissioner and others 1984 SCMR 94 and Islam-ud-Din through L.Rs and others v. Mst. Noor Jahan through L.Rs. and others 2016 SCMR 986 rel.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Art.79---Suit for cancellation of mutation and declaration---Second appeal--- Financial liability---Proof--- Single witness, production of--- Plaintiff/petitioner assailed mutation of sale in favour of defendant/respondent on the plea of fraud--- Suit was decreed by Trial Court in favour of plaintiff/petitioner but Lower Appellate Court reversed the findings and dismissed the suit--- Validity--- Mutations in question containing sale transactions were documents pertaining to financial liability and were required to be proved as per yardstick laid down in Art.79 of Qanun-e-Shahadat, 1984--- Examination of only one marginal witness by beneficiary was not enough to meet with legal requirement--- Mutations in question were not liable to be taken as evidence as neither their attestation was established nor sale transaction embodied therein was proved, when other marginal witness while appearing on behalf of plaintiff/petitioner created serious doubts in the veracity of disputed mutations--- Plaintiff/petitioner proved that alleged transaction never happened and mutations in question were manoeuvred through collusiveness--- High Court set aside judgment and decree passed by Lower Appellate Court as the same was tainted with misreading/non-reading of evidence and was suffering from jurisdictional defect--- Second appeal was allowed in circumstances.

Zulfiqar and others v. Shahdat Khan PLD 2007 SC 582; Tooti Gul and 2 others v. Irfanuddin 1996 SCMR 1386; Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another 1991 SCMR 2114; Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others 2003 SCMR 318; Altaf Hussain alias Mushtaq Ahmed v. Muhammad Din and others 2010 CLC 1646; Sardara and Allah Ditta through legal heirs and others v. Mst. Bashir Begum and another PLD 2016 Lah. 587 and Muhammad Riaz and others v. Qaim Ali and others PLD 2019 Lah. 97 ref.

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

----S.52---Lis pendens, principle of--- Scope--- Any action / development caused during pendency of trial proceedings is hit by rule of lis pendens and has to fall on ground in case the affected party ultimately succeeds.

Ch. Akbar Ali Tahir and Azhar Siddiqui for Appellants.

Arshad Nazir Mirza for Respondent.

2021 M L D 648

[Lahore]

Before Ch. Mushtaq Ahmad and Farooq Haider, JJ

Ch. MUHAMMAD ANWAR----Petitioner

Versus

JUDGE ACCOUNTABILITY COURT NO.4, LAHORE and 2 others----Respondents

Writ Petition No.246 of 2021, decided on 6th January, 2021.

National Accountability Ordinance (XVIII of 1999)---

----S.17---High Court/Lahore/Rules and Orders, Vol. III, Chap. 1-E---Qanun-e-Shahadat (10 of 1984), Art. 161---Criminal Procedure Code (V of 1898), S.540--System of trial under National Accountability Ordinance, 1999---Recalling of witness--- Principle--- Petitioner was facing trial under National Accountability Ordinance, 1999, and was aggrieved of order passed by Trial Court recalling prosecution witnesses whose evidence had already been recorded--- Validity--- Criminal justice system is not adversarial rather inquisitorial and Court has to reach at just decision of the case--- Any piece of evidence which is essential for just decision of case has to be brought on record irrespective of the fact that either it favours one party or goes against the other--- Any delay in filing any application for calling / recalling of witnesses or bringing any piece of evidence on record is immaterial--- Filling lacuna in case is immaterial if such piece of evidence is otherwise necessary for securing ends of justice i.e. essential for just decision of the case--- Evidence which was allowed by Trial Court to be brought on record of case was otherwise essential for just decision of the case and accused party had right to challenge veracity of such piece of evidence by way of cross-examination--- High Court declined to interfere in the order passed by Trial Court--- Constitutional petition was dismissed, in circumstances.

Abdul Latif Aasi v. The State 1999 MLD 1069; Muhammad Azam v. Muhammad Iqbal and others PLD 1985 SC 95; The State v. Muhammad Yaqoob and others 2001 SCMR 308 and Farooq Hussain and others v. Sheikh Aftab Ahmad and others PLD 2020 SC 617 rel.

Sardar Muhammad Sadiq Tahir for Petitioner.

2021 M L D 671

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ

KHALIL-UR-REHMAN and others ---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.66-J of 2018 and Murder Reference No.104 of 2017, heard on 22nd September, 2020.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of son of the complainant---First Information Report was lodged on the basis of oral statement of complainant---Perusal of the oral statement and the FIR revealed that complainant had not mentioned the source of information regarding the receipt of injuries by his son/deceased and his presence at the hospital in an injured condition---Subsequently, the name of other son of complainant was introduced as an eye-witness of the occurrence with the contention that it was he in whose presence the whole occurrence had taken place and the witness who had reported the matter to complainant at his shop---Said witness was not mentioned as a witness in the oral statement of complainant---Prosecution remained unable to explain plausibly the absence of the name of son of complainant as an eye-witness of the occurrence in the oral statement---Record showed that it had been mentioned in the oral statement that complainant received information regarding the receiving of injuries by his son/deceased at the hands of accused, however, it was not mentioned that said information was given to him by his own son/eye-witness---Complainant, in his private complaint, stated that it was his son who came to him at his shop and told him that his other son had been beaten by the accused and co-accused---According to complainant said information was given to him by eye-witness before the recording of the oral statement---No reason was given for not having named eye-witness as an eye-witness by complainant of the case at the time of recording of oral statement---Complainant had already met eye-witness at his shop prior to the recording of his oral statement---Eye-witness had repeatedly asserted that prior to recording of the oral statement he had told his father that he had seen the occurrence with his own eyes, however, complainant still failed to name his son as a witness---Oral statement was lodged after proper inquiry and not spontaneously as admitted by complainant, hence there was no reason for him not to have mentioned the name of his son as an eye-witness of the occurrence---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Un-natural conduct of eye-witness---Scope---Accused were charged for committing murder of son of the complainant---Eye-witness during cross-examination stated that it was the co-accused (both acquitted) who brought the police to the place of occurrence prior to the lodging of the FIR and it was the police who brought deceased then injured to the hospital in the company of both acquitted co-accused---Eye-witness further stated during cross-examination that at the time of arrival of police he was still present at the place of occurrence however, he pretended to be sleeping and did not report the matter to the police and when the police left the place of occurrence he went to the shop of his father/complainant and told him regarding the occurrence---Even after arrival of the police at the place of occurrence, eye-witness by his own admission did not find it necessary to report the matter to the police and pretended to have been sleeping during the said visit---Such conduct of eye-witness was unnatural and sufficient to discard his evidence in its entirety---Appeal against conviction was allowed, in circumstances.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account and medical evidence---Contradictions---Scope---Accused were charged for committing murder of son of the complainant---Medical Officer who examined deceased then in injured condition at 9:45 a.m. had opined that the probable duration of injuries was within ten to twelve hours approximately---Eye-witness during cross-examination stated that he could not tell the time of occurrence, however, other witness stated that they had remained at the place of occurrence with the accused and the deceased till 6.00 a.m. and had left thereafter, meaning thereby that the occurrence took place sometime after 6.00 a.m.---Said timing of the occurrence as determined by perusal of statements of the prosecution witnesses was not consistent with what was opined by the Medical Officer who stated that the injured had received the injuries within 10-12 hours of his examination, meaning thereby that the injured had received the injuries at about 9.45 p.m. to 11.45 p.m. a day earlier---Said fact totally shattered the prosecution case and contradicted the time of occurrence as deposed by the witnesses---Occurrence did not appear to have taken place at the point of time mentioned by the witnesses, in circumstances---Time of occurrence as deposed by the prosecution witnesses was not free from uncertainty, the prosecution evidence was silent as to why deceased was not provided with any medical treatment for as many as 10-12 hours---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Accused placed similarly to acquitted co-accused---Effect---Accused was charged that he and co-accused committed murder of the son of complainant---In the present case, the Trial Court had acquitted the co-accused---Complainant filed a petition seeking grant of special leave to appeal from the order of acquittal of the said co-accused and the same was dismissed as withdrawn, thus the acquittal of the co-accused had attained finality---Notion was that once a witness was found to have lied about a material aspect of a case, it could not then be safely assumed that the said witness would tell the truth about any other aspect of the case---Perusal of the statement of eye-witness clearly revealed that according to the said eye-witness it was the accused and his co-accused who all gave beating to deceased and no distinction was drawn by the said eye-witness with regard to the role of the accused and his co-accused, since acquitted---No independent corroboration of the prosecution case against the accused was available---Case of the accused was not distinguishable from the case of acquitted co-accused as the prosecution evidence with regard to the accused and co-accused was similar---Prosecution examined eye-witness to depose against the accused and co-accused---Acquittal of co-accused persons had attained finality as the complainant of the case preferred to withdraw his petition seeking grant of special leave to appeal against the acquittal of co-accused---Eye-witness was adjudged to have deposed falsely against co-accused---No reason was found to believe statement of eyewitness with regard to the accused---Said fact of telling lie on part of the witness with regard to co-accused (since acquitted) had vitiated the trust in him, thus, the evidence of eye-witness had no worth and was to be rejected outrightly---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 PLD 2019 SC 527 rel.

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

----Ss.302(b) & 34---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, common intention---Appreciation of evidence---Non-association of private witnesses---Recovery of cement block as crime weapon---Reliance---Scope---Accused was charged that he along with co-accused committed murder of the son of complainant---In the present case, cement block was recovered from the accused---Said recovery from the accused could not be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the said cement block from the accused---Said recovery was in clear violation of S.103, Cr.P.C., and therefore, could not be used as incriminating evidence against the accused---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive was not proved---Scope---Accused was charged that he and co-accused committed murder of the son of complainant---Motive of the occurrence as mentioned in the oral statement of complainant was that an altercation had taken place between the deceased and the accused in the presence of witnesses---No further details of said motive were mentioned in the oral statement of complainant---Witness of the motive, who was also witness of the recovery, admitted during cross-examination that the quarrel between the accused and the deceased was not reported to complainant---Said witness further stated that the altercation had taken place in the night whereas he left the place of occurrence at 6.00 a.m. without any further altercation between the parties---Prosecution witnesses failed to provide evidence to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the accused to have committed the qatl-i-amd of the deceased---Haunting silence was shown with regard to the details of alleged motive---No independent witness was produced by the prosecution to prove the motive---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Principle---One tainted piece of evidence could not corroborate another tainted piece of evidence.

Muhammad Javed v. The State 2016 SCMR 2021 rel.

(h) Criminal trial---

----Motive and recovery---Scope---Motive and recovery were only corroborative pieces of evidence---If the ocular account was found to be unreliable then motive and recovery had no evidentiary value and lost their significance.

(i) Criminal trial---

----Benefit of doubt---Principle---If only a single circumstance creating reasonable doubt in the mind of a prudent person was available then such benefit was to be extended to an accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Raja Ghaneem Aabir Khan for Appellant.

Sajjad Hussain Bhatti, Deputy Prosecutor General for the State.

2021 M L D 705

[Lahore (Bahawalpur Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD YOUNIS---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.7920 of 2018/BWP, decided on 17th September, 2018.\

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

----S.12(2)---Challenge to a decree / order / judgment on ground of fraud or misrepresentation----Adjudication of application under S.12(2), C.P.C.----Scope---Provisions of S.12(2), C.P.C. could only be pressed into service where fraud was played or misrepresentation was made during proceedings in a suit, and not if done outside the court --- Plea that elders / respectables, trying to arrive at a compromise outside the court, prevented a party from appearing in court, was not tantamount to any fraud committed ---- Non-production of evidence during court proceedings, related to procedure and merits of a case did not amount to fraud or misrepresentation committed during court proceedings---Falsity of claim to the knowledge of a person putting forward such claim, was not a ground for setting aside a decree on ground of fraud under S. 12(2) C.P.C.

Ms. Shazia Ashraf v. Municipal Committee, Sahiwal through Administrator and another 2006 CLC 1018; Syed Ameer Hussain Shah v. Syed Dilbar Hussain Shah and 3 others 2011 MLD 1956 and Lal Din and another v. Muhammad Ibrahim 1997 SCMR 710 rel.

Abdul Ghaffar Khan Chughtai for Petitioner.

2021 M L D 766

[Lahore (Multan Bench)]

Before Shahid Bilal Hassan, J

MUHAMMAD RAFIQUE AWAN---Appellant

Versus

The LAND ACQUISITION COLLECTOR, NATIONAL HIGHWAY AUTHORITY and 4 others---Respondents

Regular First Appeal No.146 of 2004, decided on 31st December, 2020.

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

----Ss.4 & 18---Acquisition of land---Reference to Court---Compensation of acquired land---Assessment---Factors to be taken into consideration by the Court enumerated.

Factors to be taken into consideration by the Court in assessing the compensation of acquired land are:-

i. Its market value at the prevalent time and its potential;

ii. One year average of sale (price) of similar land before publication of notification under section 4 of the Land Acquisition Act, 1894;

iii. Likelihood of development and improvement of the land;

iv. What a willing purchaser would pay to a willing buyer in an open market arm's length transaction entered into without any compensation;

v. Loss or injury by change of residence or place of business and loss of profit;

vi. Delay in the consummation of acquisition proceedings; and

vii. Peculiar facts and circumstances of each case.

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

----Ss.4 & 18---Acquisition of land---Reference to Court---Compensation of acquired land---Enhancement of compensation---Discharge of burden---Scope---Appellant/ land-owner sought enhancement to the extent of the price of the land-in-question assessed by the District Price Assessment Committee---Held, that when a party was interested in enhancement of the compensation, he owed a duty to discharge the burden by procuring convincing , trustworthy and solid evidence for the said purpose ---Potential value of the property could not be determined on the basis of mere oral assertion on behalf of the land owner---Record revealed that documents exhibited/produced by the appellant in his evidence, included the report of District Price Assessment Committee and the Valuation Table prepared by the concerned District Collector 4/5 years before the award, however, the same was prepared for the purposes of computation of ad-valorem stamp duty only---Oral assertion made by the appellant, therefore, was not sufficient to outwit the documentary evidence produced by authorities which were documents/mutations/sale deeds related to urban as well as rural lands surrounding the acquired land of the appellant sold at the relevant time or preceding year---Khasra Girdawries of the previous 4/5 years showed that the land-in-question was still agricultural and even the remaining land of the appellant was being cultivated and the appellant admitted the said fact in cross-examination during his evidence---Appellant had not produced any evidence that the status of land was changed from agricultural to commercial or urban, whereas the respondents had established, by leading documentary evidence, that the land-in-question was agricultural in nature---Evidence also showed that Board of Revenue, through special Committee, inspected the spot and assessed the compensation keeping in view the average sale price of the area---Price of the land-in-question, as assessed by the District Price Assessment Committee, was not based on independent inspection of the spot and the same was founded on the valuation table prepared by the concerned District Collector 4/5 years ago, which was prepared only for the purpose of calculation of ad-valorem Stamp Duty, whereas Board of Revenue had fixed the compensation in accordance with law---Appellant could not point out any mala fide on the part of Board of Revenue in determining the compensation as declared in award-in-question---No bar existed on Board of Revenue to assess the reasonability of the compensation assessed by the District Price Assessment Committee---Appellant had failed to rebut the documentary evidence produced by the authorities showing that the adjacent land was higher in price than awarded to him by the authorities through issuance of award---Man could tell a lie a document could not and to outdo a documentary proof, better and cogent evidence in shape of document had to be produced, which was lacking in the present case on the behalf of appellant---Record further revealed that the appellant had received the compensation more than his entitlement---Referee Court had rightly decided the issue by taking into the consideration facts and circumstances in assessing the compensation of acquired land---Board of Revenue after spot inspection had rightly assessed the compensation of the acquired land---No illegality had been committed by the Trial Court which had judiciously exercised its jurisdiction vested to it after examining record and appreciating law on the subject --- Appeal was dismissed, in circumstances.

Hyderabad Development Authority through MD., Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Air Weapon Complex through DG v. Muhammad Aslam and others 2018 SCMR 779; Civil Aviation Authority through Project Director and others v. Rab Nawaz and others 2013 SCMR 1124; Abdul Sattar v. Land Acquisition Collector Highways Department and others 2010 SCMR 1523 and National Highway Authority through Chairman and 2 others v. Bashir Ahmad and 2 others 2018 CLC Note 63 ref.

Ghulam Sarwar Gishkori for Appellant.

Malik Muhammad Tariq Rajwana and Kashif Rafique Rajwana for Respondents Nos.1 and 2.

2021 M L D 794

[Lahore]

Before Ch. Muhammad Iqbal, J

Rana MUHAMMAD ASHRAF---Petitioner

Versus

MANZOOR AHMAD and others---Respondents

Writ Petition No.13246 of 2010, decided on 7th October, 2020.

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

----S.24---Constitution of Pakistan, Art.199---Constitutional petition---Lumbardari grant---Allotment, cancellation of---Remand of case---Effect---Dispute between parties was with regard to allotment of state land reserved for Lumardari grant to persons not entitled for the same---Petitioner was permanent Lambardar of the village and resumed land was allotted to him but subsequently matter was remanded to Commissioner for decision afresh---Validity---After remand the matter was still pending before Commissioner and petitioner was at liberty to raise all legal and factual objections before the forum which forum was under legal obligation to re-examine the case and decide the matter afresh---Aggrieved party, after decision in remand proceedings had remedies as per law---High Court in exercise of Constitutional jurisdiction declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Muhammad Ilyas Khan v. Muhammad and others 1986 SCMR 251; Allah Ditta and others v. Member (Judicial) Board of Revenue and others 2018 SCMR 1177; Ramzan v. Rehabilitation Commissioner (Legal) Sargodha and another PLD 1963 (W.P.) Lah. 461; Akbar Ali and 18 others v. Mukhtar Ahmad and 14 others 2007 CLC 768 and Ghulam Ahmad v. Member Board of Revenue Punjab, Lahore and others 2010 CLC 1921 rel.

Ch. Nazir Ahmad Kamboh for Petitioner.

Ch. Iqbal Ahmad Khan and Salman Manzoor for Respondents Nos.1 to 3.

Asif Mahmood Cheema, Additional Advocate General for Respondents Nos.4 to 6.

2021 M L D 808

[Lahore]

Before Ali Baqar Najafi, J

Mst. SHAHNAZ BIBI----Petitioner

Versus

SIRAJ DIN and 2 others----Respondents

Writ Petition No.6807 of 2016, decided on 23rd November, 2020.

Punjab Rented Premises Act (VII of 2009)---

----Ss.15 & 19---Ejectment of tenant---Mortgage deed (Girvee)---Petitioner was tenant in the premises owned by respondent---Eviction order passed by Trial Court was maintained by Lower Appellate Court---Validity---Neither petitioner/tenant filed any suit for redemption nor respondent/landlord filed suit for recovery of amount on the basis of usufruct mortgage--- For all intents and purposes it was a rent agreement and relationship of landlord and tenant existed notwithstanding title and terms of mortgage deed with regard to possession--- Petitioner/tenant was rightly ejected and two Courts below did not commit any illegality warranting interference by High Court in exercise of Constitutional jurisdiction, particularly in absence of suit for redemption or suit for right of foreclosure--- Constitutional petition was dismissed, in circumstances.

Asif Raza Mir v. Muhammad Khurshid Khan 2011 SCMR 1917; Abdus Salam and 2 others v. Ch. Noor Muhammad 1991 SCMR 2346; Abdul Haq v. Ali Akbar and others 1999 SCMR 2531; Mst. Maqbool and others v. Samandar Khan PLD 1969 Pesh. 216; Muhammad Abdullah v. Abdul Jabbar PLD 1967 Lah. 1000 and Raza Hussain v. Muhammad Ismail PLD 1973 Note 114 rel.

Syed Mazhar Hussain Shah for Petitioner.

2021 M L D 833

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

IFTIKHAR AHMAD CHAUDHARY----Petitioner

Versus

MANZOOR AHMAD (DECEASED) through LRs and others----Respondents

Civil Revision No.1536 of 2012, heard on 25th January, 2021.

Specific Relief Act (I of 1877)---

----S.12---Limitation Act (IX of 1908), S.5---Civil Procedure Code (V of 1908), S.35-A---Suit for specific performance of agreement---Condonation of delay---Re-filing of revision---Special costs, imposition of---Principles---Respondent/plaintiff filed suit for specific performance of agreement and during trial Forensic Science Laboratory reported confirming genuineness of signatures of petitioner/defendant on the agreement---Trial Court as well as Lower Appellate Court dismissed suit and appeal concurrently---Incomplete revision was filed against concurrent decrees well in time and to remove objection raised by office of High Court the file was received back but refiled after almost seven years---Validity---Petitioner/defendant filed application under S.5 of Limitation Act, 1908, but without specifically explaining delay of each day in re-filing of revision application---Concurrent findings of lower fora were based on reasoning as per available evidence---High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of facts---Petitioner/defendant had no merit or evidence at his end but he with ulterior motive continued the litigation, which caused consumption of precious time of Court therefore, special cost was imposed on petitioner/defendant---Revision was dismissed, in circumstances.

Muhammad Umer v. Muhammad Qasim and another 1991 SCMR 1232; Mst. Imtiaz Begum v. Mst. Sultan Jan and others 2008 SCMR 1259; Messrs Rashid & Company v. Punjab Province and another 1995 CLC 1914; Ch. Zulfiqar Ali v. Mian Akhtar Islam and Mian Bashir Ahmed PLD 1967 SC 418; Baqa Muhammad v. Muhammad Nawaz and others PLD 1985 Lah. 476; Lal Khan and others v. Khizar Hayat and others 1994 SCMR 351; Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Sadique PLD 1978 SC 279 and Muhammad Ashiq v. Niaz Ahmed PLD 2004 Lah. 95 ref.

Syed Muhammad Kaleem Ahmad Khurshid for Petitioner.

Muhammad Zubair Rafique Warraich and Anwar Ahmad Janjua for Respondents Nos.1-A (i to iii) and 1-J.

Ihsan Ahmed Bhindar for Respondent No.1-B.

2021 M L D 847

[Lahore]

Before Muzamil Akhtar Shabir, J

JABRAN MUSTAFA---Petitioner

Versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No.69574 of 2020, decided on 1st January, 2021.

Family Courts Act (XXXV of 1964)---

----Ss.5, Sched., 13 & 14---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Executing Court---Objection petition, dismissal of---Final decision---Scope---Executing Court , in wake of non-service of warrants of arrest of the judgment-debtor, issued warrants of arrest of the petitioner, who was brother/attorney of the judgment-debtor---Petitioner invoked constitutional jurisdiction of the High Court contending that his application for cancellation of warrants of his arrest was wrongly dismissed by the Executing Court and he was summoned through non-bailable warrants to appear in the said Court---Held, that petitioner's case was not a case wherein warrants of arrest against him had simpiliciter been issued for the High Court to treat the same as an interlocutory order to look into its legality, rather vide impugned order the Executing Court, while dismissing the application of the petitioner for cancellation of warrants of arrest issued against him, had refused to recall its earlier order of issuing warrant of arrest against him---Executing Court had applied its mind to the facts of the matter before it---Impugned order (of the dismissal) was "a decision given" on petitioner's objection petition (application for cancellation of warrants of arrest issued against him) against the execution of decree, hence the same amounted to a final decision , which was appealable before the Appellate Court in terms of S.14 of the Family Courts Act, 1964---Appellate Court could take into consideration the facts of the case of petitioner---Constitutional petition, was not maintainable in view of availability of alternate remedy before the Appellate Court---Constitutional petition was dismissed, in circumstances.

Muhammad Pervez v. Mst. Nabila Yasmeen and 2 others 2004 SCMR 1352 and Rahim Bukhsh v. Mst. Shehzadi and others 2018 CLC 1789 ref.

Mirza Kazim Ali Baig for Petitioner.

Adeel Ahmad Kamran, Assistant Attorney General and Sardar Qasim Hassan Khan, A.A.G.

2021 M L D 868

[Lahore]

Before Jawad Hassan, J

SHAZIA KHALID---Petitioner

Versus

HIGHER EDUCATION COMMISSION and others---Respondents

Writ Petition No.75252 of 2017, heard on 2nd December, 2020.

(a) Higher Education Commission Ordinance (LIII of 2002)---

----Preamble---Constitution of Pakistan, Art.4---Equivalence of Ph.D degree---Degree was awarded to the Assistant professor of University through distance and online learning program from a foreign university under the scholarship granted by the University---Request of the petitioner (Assistant Professor) for equavelance of her Ph.D was refused on the ground that degree-in-question was not awarded to the petitioner by any of the chartered universities and that the petitioner had taken contradictory stance in her application form submitted before the respondent-HEC---Plea of the petitioner was that no objection was raised throughout the whole process of getting Ph.D degree---Validity---Record revealed that respondent-HEC had sought information from respondent-University during scrutiny of the application submitted by the petitioner before HEC and the respondent-university replied that change of foreign university by the petitioner was not known/intimated to them---Overseas Scholarship Committee of the University, in the present case, had decided releasing of scholarship amount subject to submission of reply from the HEC, however, such reply was not available on record on the basis of which (reply) the Committee approved the scholarship amount---Record was also silent about change of study from one university to the other one by the university-respondent---Even the petitioner had not attached her complete documents while submitting application for equivalence of her Ph.D degree---High Court set aside the impugned letter refusing the request of (the petitioner) for equivalence of her Ph.D degree and directed the respondents to pass speaking order strictly after examining the record as well as hearing all concerned including the petitioner---Constitutional petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Art.4---Equality of citizen---It is inalienable right of every citizen to be treated in accordance with law as envisaged by Art.4 of the Constitution---It is the duty and obligation of every public functionary to act within the four corners of the mandate of the Constitution

Saad Rasool and Shan Saeed for Petitioner.

Sajid Ijaz Hotiana for Respondent No.1.

Malik Muhammad Awais Khalid, Legal Advisor for Respondent No.3.

Rabbiya Bajwa for Applicant under Order I, Rule 10, C.P.C.

2021 M L D 880

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun, J

ZEESHAN ALI ZAFAR---Petitioner

Versus

S.H.O. and others---Respondents

Writ Petition No.13297 of 2020, decided on 14th October, 2020.

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

----S.5(2A)---Criminal Procedure Code (V of 1898), S.491---Habeas Corpus---Nikahnama---Failure to fill each column---Petitioner husband sought recovery of his wife who contracted marriage without blessings of her parents--- Nikah Registrar instead of accurately filling the same with requisite / specific reply of bride or bridegroom opted to place single vertical line and also left some of the columns blank---Validity---Alleged detenue was sui-juris and major who contracted marriage with petitioner without blessings of her parents and other siblings--- In order to prove his bona fides that petitioner did not contract marriage with detenue merely as a result of his crush, momentous and impulsive passion arising out of her bodily and behavioural charm or he had contracted marriage sincerely with religious zeal and to forge a sense of security in monetary terms in the mind of detenue, petitioner with his volition reaffix amount of deferred dower of alleged detenue / his wife as Rs. 1,000,000/- (ten lac)---Nikah Registrar committed clear cut violation of directions issued by High Court in an earlier case and SOP issued by Directorate General LG & CD Punjab---High Court referred the matter to District authorities for initiation of penal proceedings against Nikah Registrar / delinquent after affording opportunity of hearing to him---Constitutional petition was allowed, in circumstances.

Mst. Tahira Bibi v. SHO and others PLD 2020 Lah. 811 rel.

Sh. Tanveer Ahmad for Petitioner.

Muhammad Ayyub Buzdar, Assistant Advocate General.

Muhammad Saleem Bashir and Rana Rizwan for Respondent No.3.

2021 M L D 901

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar, J

SONA CHEMICALS through Chief Executive and 2 others---Petitioners

Versus

INSPECTOR GENERAL OF POLICE PUNJAB, LAHORE and 6 others---Respondents

Writ Petition No.130 of 2020, decided on 25th November, 2020.

Punjab Fertilizers (Control) Order (VII of 1973)---

----Art.18---Punjab Essential Articles (Control) Act (XVII of 1973) Ss.3, 2(a) & Sched.---Regulation of essential articles---Sale of adulterated and fake fertilizers---"Controller" under Punjab Essential Articles (Control), 1973, powers of---Cancellation of licence for distribution of fertilizer products---Scope----Petitioner impugned letter / notification issued by Provincial Director of Soil Fertility whereby its licence to distribute fertilizer products was cancelled under Art.18 of Punjab Fertilizers (Control) Order, 1984---Contention of petitioner, inter alia, was that under Art. 18 of Punjab Fertilizers (Control) Order, 1973, Director Soil Fertility Punjab could not have passed impugned order---Validity---Under the law, Director Soil Fertility could cancel registration certificates and record revealed that petitioner had not made any efforts in pursuance of their claim that their agreement for distribution with manufacturer still held field, and therefore without backing of such agreement, it was clear that products being marketed by petitioner were fake as they were not authorized by manufacturer for distribution---Per Art.18(4) of Punjab Fertilizers (Control) Order, 1973, product marketed without permission of manufacturer, was not a standard product and selling of same was in violation of Art.18(4) and thus impugned order for cancellation of petitioner's licence was correct---Constitutional petition was dismissed, in circumstances.

Malik Ali Muhammad Dhol for Petitioner.

2021 M L D 910

[Lahore (Multan Bench)]

Before Ch. Abdul Aziz, J

NAVEED AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.163-J of 2011, heard on 3rd December, 2020.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Chance witnesses---Non-availability of justification for the presence of eyewitnesses at the place of occurrence---Scope---Accused were charged for committing murder of brother-in-law of the complainant---Ocular account in the case was furnished by two eyewitnesses, who were brother-in-law (behnoi) of deceased---Both the eyewitnesses admitted having their abode at a place different from the vicinity of crime---Both the eyewitnesses reached the house of deceased in the earlier hours of day of occurrence and none of them offered any special reason about their acclaimed visit---Eyewitnesses could safely be termed as chance witnesses---Evidence of said witnesses could not be accepted.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1141 rel.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of eyewitnesses---Scope---Accused were charged for committing murder of brother-in-law of the complainant---Ocular account in the case was furnished by two eyewitnesses---From scanning of ocular account, it was noticed that both the eyewitnesses claimed that at the time of occurrence they were sitting in the house of a neighbour and attracted to the spot after hearing the noise of auto rickshaw---According to the prosecution case, said neighbour had also arrived at the scene and remained with the eyewitnesses even during police visit, however, neither statement of said neighbour under S.161, Cr.P.C., was recorded nor he appeared before the Trial Court---Eyewitnesses deposed that accused inflicted successive dagger blows on the abdomen of deceased while he was lying on the cot---Witnesses had made no endeavour to save the life of deceased either through intervention or by beseeching the accused persons---Eyewitnesses raised no hue and cry to attract other residents of the vicinity so as to nab the perpetrators, when except the accused remaining persons were empty-handed---Even the deceased was removed from the spot so as to be taken to hospital after about half an hour of the incident---Said conduct ran contrary to the natural human response and gave rise to many questions, which could be resolved adverse to the prosecution case.

Pathan v. The State 2015 SCMR 315 and Liaquat Ali v. The State 2008 SCMR 95 rel.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of crime weapon on the disclosure of accused---Reliance---Scope---Accused were charged for committing murder of brother-in-law of the complainant---Recovery of chhuri was statedly effected on 08.06.2004 upon the pointing out and disclosure of accused---Recovery of dagger was later found by the Chemical Examiner through his report to have human blood stains---Head Constable/witness appeared in the dock and explained to have been performing duty on the day of occurrence as Moharrer/Station Clerk---Said witness though testified to have received parcel of blood-stained earth from the Investigating Officer on 19.05.2004---Said parcel was dispatched on 26.05.2004 to the office of Chemical Examiner, however, said witness deposed nothing about the receipt of dagger and its onward transmission to the office of Chemical Examiner---Likewise, no witness appeared before the Trial Court to depose that the dagger was taken to the office of Chemical Examiner or to the Serologist---Prosecution failed to prove the safe custody and its onward transmission to the office of Chemical Examiner---Reports of Chemical Examiner issued by the Serologist therefore lost its credibility.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Accused were charged for committing murder of brother-in-law of the complainant---Motive behind the occurrence was stated to be the fact that sister of accused was abducted by a person and deceased was supporting him, which ignited the situation---Even after having examined the record with utmost circumspection, nothing as such was found available from which it might allude that the sister of accused was either abducted or deceased was having anything to do in the issue---Complainant also admitted that he was never a participant of any reconciliatory effort in the abduction of sister of accused---Motive having no truth in it was discarded.

Prince Rehan Iftikhar Sheikh for Appellant.

Syed Nadeem Haider Rizvi, Deputy Prosecutor General and Muhammad Laeeq ur Rehman, ADPP for the State.

Ms. Asma Jabeen for the Complainant.

2021 M L D 928

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar and Ch. Abdul Aziz, JJ

RASHEED AHMED alias PAPPU BAYDEED---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.375 of 2020, heard on 3rd December, 2020.

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

----S.9(c)---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Possession of 1400 grams charas---Appreciation of evidence---Withholding material evidence---Effect---Prosecution case was that 1400 grams of charas was recovered from the possession of the accused---Record showed that the drafted complaint was sent to the police station through a constable for the registration of formal FIR---Though, said constable was an important witness to prove that the complaint was transmitted from the place of recovery to the police station, however, neither said constable was produced before the Trial Court nor his statement was recorded during investigation---Such omission gave rise to an inference that had said constable appeared before the Trial Court he would not have deposed in support of the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Minhaj Khan v. The State 2019 SCMR 326 rel.

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

----S.9(c)---Possession of 1400 grams of charas---Appreciation of evidence---Benefit of doubt---Safe custody of contraband substance by police and transmission of samples to the Chemical Examiner not established---Effect---Prosecution case was that 1400 grams of charas was recovered from the possession of the accused---Official witness/constable while appearing in the dock stated in unequivocal terms that no entry in the Station Diary/Rozenamcha was made about the receipt of case property for placing in safe custody---Prosecution in such state of affairs, failed to prove the safe custody as well as the safe transmission of the alleged narcotic substance to the Forensic Science Laboratory---Failure of the prosecution to prove safe transmission was always regarded fatal for its case---Appeal against conviction was allowed, in circumstances.

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

Prince Rehan Iftikhar for Appellant.

Malik Riaz Ahmed Saghla, Additional Prosecutor General, Punjab for the State.

2021 M L D 947

[Lahore]

Before Anwaarul Haq Pannun, J

ZAHID MEHMOOD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Criminal Miscellaneous No.12356-M of 2021, decided on 23rd February, 2021.

Penal Code (XLV of 1860)---

----S.489-F----Criminal Procedure Code (V of 1898), Ss. 345, 497 & 561-A---Dishonestly issuing a cheque---Bail, cancellation of---Compounding of offences---Compromise inter se parties without permission of court---Cancellation of bail on ground of breach of compromise terms----Scope---Accused was released on post-arrest bail after compromise between parties, however, subsequently on breach of compromise terms, upon application of complainant under S. 497(5) Cr.P.C., his bail was recalled---Contention of accused, inter alia, was that once bail was granted, it was not subject to any conditions ---Validity----Offence under S.489-F, P.P.C. was compoundable inter se the parties, without permission of court and concession of bail could be granted to accused after affirmative nod of complainant---Court, in such a case, was not legally bound to consider as to whether accused had made out his case on merits---Accused, if after entering into compromise, once again dishonours his commitment, then same would amount to dishonest act in continuation of earlier breach, rendering him disentitled to enjoy benefit of the compromise---Grant of bail in non-bailable offences was a concession and not a matter of right---Accused, in the present case, had executed undertaking that upon his failure to honour commitment of payment within one month, the complainant had right to seek cancellation of bail, and presumption of truth was attached to judicial proceedings, and such undertaking---Bail of accused had therefore rightly been recalled / cancelled --- Application under S.561-A, Cr.P.C. was dismissed, in circumstances.

Jehanzeb Khan v. The State through A.G. Khyber Pakhtunkhwa and others 2020 SCMR 1268; Salman Khalid v. The State and others PLD 2020 Lah. 97 and Sami Ullah and another v. Laiq Zada and another 2020 SCMR 1115 ref.

Tariq Mehmood v. Naseer Ahmed and others PLD 2016 SC 347; Salman Khalid v. The State and others PLD 2020 Lah. 97 and Sami Ullah and another v. Laiq Zada and another 2020 SCMR 1115 rel.

Mian Riaz Hussain Jammu for Petitioner.

2021 M L D 957

[Lahore (Rawalpindi Bench)]

Before Atir Mahmood, J

MUNEEZA NISA---Petitioner

Versus

AHMED NAWAZ and others---Respondent

Writ Petition No.2768 of 2019, heard on 19th December, 2019.

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

----Ss.25 & 12 ----Criminal Procedure Code (V of 1898), S.491---Custody of minors---Habeous corpus---Welfare of minors, determination of---Petitioner mother impugned orders passed under S.491, Cr.P.C. and S.25 of Guardians and Wards Act, 1890 whereby custody of her minor children was given to father and stepmother---Contention of petitioner, inter alia, was that welfare of minors could only be assured if custody was given to mother---Validity---No ground for disqualification of mother to have custody of children, under Islamic Law, was attracted in the present case and father of minors was admittedly living abroad and thus it could not be presumed that he could take care of them on his own---No one could be a better guardian than a mother, and thus custody of minors should be with mother---Impugned orders were set aside and High Court directed respondents to handover custody of minors to petitioner/mother---Constitutional petition was allowed, accordingly.

Muhammedan Law para 353 and Mir Bat Khan v. Mst. Sherin Bibi and others 2019 SCMR 520 rel.

Qazi Ibrar Hussain for Petitioner.

Hassan Raza Pasha for Respondents Nos.1 to 3.

2021 M L D 980

[Lahore]

Before Syed Shahbaz Ali Rizvi and Asjad Javaid Ghural, J

MULLAZIM HUSSAIN and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.1518 of 2014, heard on 30th November, 2020.

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

----Ss.365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Arts. 22 & 129(g)---Kidnapping or abducting for extorting property, valuable security, rioting, rioting armed with deadly weapon---Act of terrorism---Identification parade---Withholding best evidence---Appreciation of evidence---Benefit of doubt---Scope---Accused along with others were alleged to have abducted the nephew of the complainant---Source of light mentioned in the FIR was neither taken into possession by the Investigation Agency nor produced before the Trial Court---Abductee had purportedly remained in detention for a period of about four months and during that period accused persons had been telephonically calling the complainant party to demand ransom but as per complainant, he did not remember the caller's telephone number and he did not give the same to the police prior or post return of the abductee---Accused persons were not connected with any of the telephone numbers used by the culprits to demand ransom amount from the complainant party---Alleged abductee was not recovered from the custody of the accused persons---Investigation agency had even remained failed to have disclosure from the accused persons about the place where the abductee had remained confined---Prosecution case was silent about the use of the foot moulds secured from the spot from which an inference could be drawn against credibility of the prosecution case under Art. 129 of the Qanun-e-Shahadat, 1984---Age of the dummies was not given in the identification parade proceedings and both the accused persons were jointly subjected to the test identification parade---No role was assigned to the accused persons by the witnesses during the identification parade---Accused persons could not be convicted on the basis of their alleged absconsion---Prosecution had failed to prove its case against the accused persons beyond the shadow of a reasonable doubt, in circumstances---Appeal against conviction was allowed, in circumstances.

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

----Ss.365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for extorting property, valuable security, rioting, armed with deadly weapon---Act of terrorism---Recovery of weapon---Scope---Person from whose 'dera' pistols along with live bullets were recovered had never joined the proceedings, therefore, such recovery did not carry any judicial certainty---Witness of the recoveries during his cross-examination in very clear terms had stated that he had been giving statements in connection with the case but had never signed any document---Appeal against conviction were allowed, in circumstances.

(c) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt regarding the prosecution case is sufficient to give benefit of doubt to the accused.

Zain Qureshi for Appellants.

Ch. Zahid Tariq for Appellant (at State expenses).

Muhammad Imran Sulehria for Appellant (at State expenses).

Nisar Ahmad Virk, Deputy Prosecutor General for the State.

Muhammad Muzaffar Samore and Malik Muhammad Salik Awan for the Complainant.

2021 M L D 1006

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MUHAMMAD MAZHAR IQBAL---Petitioner

Versus

The STATE---Respondent

Criminal Revision No.631 of 2016, decided on 30th March, 2017.

Criminal Procedure Code (V of 1898)---

----S.514---Forfeiture of surety bond---Procedure---Imposition of fine on surety---Exercise of discretion of Trial Court under S.513, Cr.P.C.----Scope---Petitioner impugned order of Trial Court whereby vide proceedings under S.514, Cr.P.C., a fine was imposed on petitioner who had stood surety for accused, and such accused had absconded---Contention of petitioner was that he had stood surety for accused on humanitarian grounds and tried best to locate accused but did not succeed---Validity---In the present case, it had not been shown that petitioner stood surety for any monetary or personal gain and there was no evidence that he had been careless or that he did not make any effort to produce accused before Trial Court---Impugned order was modified and quantum of penalty upon petitioner was reduced----Revision was disposed of, accordingly.

Ali Sher v. The State 2011 SCMR 929 rel.

Malik Muhammad Latif Khokhar for Petitioner.

2021 M L D 1017

[Lahore]

Before Muhammad Ameer Bhatti, J

MUHAMMAD ISHAQUE---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.30231 of 2014, decided on 28th June, 2016.\

Civil Procedure Code (V of 1908)---

----S.12(2)---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Bar to further suit---Collusion of Reader of the Court---Signature obtained on blank paper---Scope---Petitioner filed application under S.12(2), C.P.C., challenging the compromise decree on the ground that he was persuaded by his newly engaged counsel that the respondent/plaintiff intended to withdraw the suit on account of fear of its failure, therefore, he embossed his thumb mark on the margin of order sheet and Reader of the Court being collusive obtained the same on blank paper---Validity---Withdrawing party always put its thumb impression or signatures when the statement was made even with regard to any sort of development in the suit---Record of case did not reflect recording of statement of petitioner by the Reader---Sanctity was attached with Court proceedings and mere filing of affidavit by any party or even by counsel was not sufficient unless procedural defect was not floating on the surface---Petitioner's application was rightly dismissed---Constitutional petition was dismissed.

Mst. Zulaikhan Bibi through LRs and others v. Mst. Roshan Jan and others 2011 SCMR 986; Muhammad Iqbal through duly Authorized Attorney v. Muhammad Ahmed Ramzani and 2 others 2015 CLC 396; Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050; Anwr Hayat and 4 others v. Mst. Durre Samin and 4 others 2012 CLC 1536; Abdul Rasheed and 7 others v. Nasrullah and 8 others 2010 YLR 309; Riaz Ahmad (Rana Riaz Anjum) and another v. The Bank of Punjab 2016 CLD 596; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097; Mst. Zaitoon v. Mst. Rehmi through L.Rs. 2005 MLD 978; Muhammad Azeem and 3 others v. National Bank of Pakistan and 8 others 2001 MLD 135; Mrs. Shakila Zaidi through Attorney and 8 others v. Hammad Asif Dosslani and others 2011 CLC 1011; Mehr Din through Legal Heirs v. Azizan and another 1994 SCMR 1110 and Muhammad Ramzan v. Muhammad Akbar Bhatti and others 2013 CLC 1561 ref.

Fayyaz Hussain v. Akbar Hussain and others 2004 SMCR 964 and Muhammad Ramzan v. Lahore Development Authority, Lahore 2002 SCMR 1336 rel.

Akbar Ali Shad for Petitioner.

Malik Abdul Ghaffar for Respondents.

2021 M L D 1027

[Lahore (Bahawalpur Bench)]

Before Muhammad Ameer Bhatti and Zafarullah Khan Khakwani, JJ

Syed SAEED HUSSAIN SHAH HUMAYUN and others---Appellants

Versus

Mst. ASIMA SAEED and others---Respondents

R.F.As. Nos.94 and 106 of 2010, heard on 9th December, 2015.\

Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Suit for maintenance of minor---Grandfather of minor was impleaded---Grandfather/plaintiff instituted a suit for recovery of rupees one crore on account of mental torture suffered by him in proceedings of a suit for maintenance filed by his grandson---Trial Court granted damages to the extent of Rs.10,000---Validity---Dissection of record revealed that the plaintiff himself had filed an application for custody of the minor being a grandfather by including the defendant as party---Plaintiff grandfather, was blowing hot and cold at the same time as on the one hand he had shown his anxiety to take custody of the minor but on the other hand when he was impleaded as party just for getting information qua whereabouts of his real son he started raising hue and cry that on account of receipt of notice/summons of Court, his personality was damaged in social set-up---When a man had already instituted more than one litigation against a lady and her father then he had no right to claim that his respect had been damaged on account of filing a suit for maintenance---Partial decree granted by the Trial Court in favour of the plaintiff was set aside and the appeal filed by defendant was allowed, in circumstances.

Mian Ahmad Nadeem Arshad for Appellant.

Mian Faiz-ul-Hassan for Respondent.

2021 M L D 1038

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MAQBOOL AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.969/J of 2016, decided on 8th February, 2021.

(a) Bail---

----Meaning and definition of---"Bail" was temporary release of a prisoner in exchange for security given for his appearance at a later hearing and meant a security such as cash, a bond, or property; especially, security required by a court for release of a criminal defendant who must appear in court at a future time---Bail was practice of releasing a person from custody, awaiting trial or an appeal, on payment of money or pledge of property to ensure his appearance before the legal authority concerned at the stipulated time.

Merriam-Webster Online Dictionary rel.

(b) Criminal Procedure Code (V of 1898)

----Ss.426, 496, 497, 498, 499 & 561-A---Application under S.561-A, Cr.P.C.---Right to reasonable amount of bail bond---Conditions of bail---Bail bond and sureties---Principles to be observed in grant of bail for pre-trial accused as well as in cases of suspension of sentence pending appeal---Reduction in amount of bond after grant of bail---Scope---Applicant Accused sought reduction in surety amount after bail was granted to him under S.426, Cr.P.C., inter alia, on ground that he did not have requisite means for furnishing amount for bail bonds---Validity---Court should fix amount of bond having due regard to circumstances of a case, including nature of offence charged, weight of evidence against a person, financial capacity of accused and his character/criminal history---Amount of bail bond should not be excessive, harsh or unreasonable but should be such which, in judgment of Court, would ensure presence of the accused---Court, for more than one accused in a case, may stipulate different amounts for their bail bonds because each one of them stood before bar of justice as an individual; and in a case where the Government's only interest was in preventing flight, Court must set the bail at a sum designed to ensure such goal---While stipulating amount of surety bond, Court must always take into consideration financial position of accused---Accused in present case, could not benefit from order of grant of bail as he could not furnish requisite security and nothing was brought on record which could controvert contention that accused was indigent and could not arrange such amount---High Court held that in such circumstances, it was just and proper that surety amount for bail be reduced and directed that accused be released on bail subject to furnishing reduced bail bond with one surety---Application under S.561-A, Cr.P.C., was allowed, accordingly.

Timothy R. Schnacke et al., The History of Bail and Pretrial Release, Pretrial Justice Institute (September 24, 2010). Available at: https://b.3cdn.net/crjustice/2b990da76de40361b6_rzm6ii4zp.pdf; Stack v. Boyle, 342 US 1 (1951); United States v. Salerno, 481 U.S. 739, (1987); Galen v. County of Los Angeles, 477 F.3d 652; Timothy R. Schnake, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform, (September 2014). Available at: https://www.supremecourt.gov/DocketPDF/18/18 814/82015/20190128 162620726_Walker%20v.%20City%20of%20Calhoun%20Cato%20amic-us%20brief.pdf; Moti Ram and others v. State of Madhya Pradesh (AIR 1978 SC 1594; Saeed Zaman v. The State and another (2020 SCMR 1855; Encyclopedia Britannica; Shahzada Qaiser Arfat @ Qaiser v. The State and others Criminal Petition No.801-L of 2020; Mian Abdul Wahid v. The State 1989 MLD 4731; Rana Muhammad Siddique v. The State 1994 PCr.LJ 118; Javid Iqbal v. The State 1995 P Cr.LJ 1839; Qasim and another v. The State 1996 MLD 108; Abdul Jabbar v. The State 1998 PCr.LJ 1465; Khurrum Ghani v. The State PLD 2010 Kar. 200. rel.

(c) Interpretation of statutes---

----Principles of construction---Where language of a statute was plain, clear and definite, then Court could not look for or impose another meaning.

American Jurisprudence, Vol. 50, p.204-206 rel.

Rehan Iftikhar Sheikh for Petitioner.

2021 M L D 1057

[Lahore (Rawalpindi Bench)]

Before Muhammad Ameer Bhatti and Atir Mahmood, JJ

LAND ACQUISITION COLLECTOR and another---Appellants

Versus

ANIS-UR-REHMAN---Respondent

R.F.A. No.27 of 2008, heard on 5th October, 2016.\

Land Acquisition Act (I of 1894)---

----Ss.18, 23 & 4---Reference to Court---Matters to be considered in determining compensation---Delay in announcing award---Scope---Land Acquisition Collector assailed judgment and decree passed by Referee Court whereby reference petition was accepted and the compensation was enhanced---Contention of appellant, Land Acquisition Collector was that while enhancing compensation, the mutations pertaining to the year 2001 were taken into consideration whereas the notification under S.4 of Land Acquisition Act, 1894 was issued in the year 2000---Validity---Not only the market value at the time of notification could be considered but also the potential value had to be kept in view, therefore, the Referee Court had not committed any illegality and irregularity while considering the referred mutations---Trial Court had also considered that the award was announced after four years of the issuance of notification---Appeal was dismissed.

Land Acquisition Collector, BOR Punjab v. Syed Haroon Iftikhar and others 2014 SCMR 659 ref.

Land Acquisition Collector, G.S.C., N.T.D.C., (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28 rel.

Abid Hussain Ranjha for Appellants.

Muhammad Shoaib Abbasi for Respondents.

2021 M L D 1109

[Lahore]

Before Asim Hafeez, J

HABIB CONSTRUCTION SERVICES LIMITED through Authorized representative---Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Chief Engineer and others---Respondents

Writ Petition No.6779 of 2021, decided on 8th February, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Alternate remedy---Contractual liability---Petitioner company was aggrieved of issuance of Taking Over Certificate after completion of contract---Validity---Pertinent issue was not simpliciter of availability of alternate remedy but assumption of jurisdiction when dispute squarely fell within the scope of an arbitral mechanism and per se had qualified as an arbitrable dispute---High Court declined to embark upon an exercise to adjudicate upon, determine and decide disputes by substituting dispute resolution mechanism---Constitutional petition was dismissed in circumstances.

Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; United Bank Ltd, through Authorized Attorneys of the Bank and 2 others v. Muhammad Ashraf and another PLD 2020 Lah. 400; Messrs Airport Support Services v. The Aiprot Manager Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Muhammad Aslam v. Senior Member (Colonies), Board of Revenue, Punjab and others 2004 SCMR 1587 and Ishaq Khan Khakwani v. Railway Board through Chairman and others PLD 2019 SC 602 ref.

Al-Mahmood Industries (Pakistan) Ltd. v. The Trading Corporation of Pakistan Ltd. and another 1974 SCMR 51 rel.

Syed Tassaduq Mustafa Naqvi for Petitioner.

Sardar Qasim Hassan Khan, A.A.G on Court's call.

2021 M L D 1124

[Lahore]

Before Muhammad Ameer Bhatti, J

MUHAMMAD KHURRAM GUMMAN ---Petitioner

Versus

SHAHID KHAN and others---Respondents

Writ Petition No.1279 of 2011, heard on 21st June, 2016.\

Canal and Drainage Act (VIII of 1873)---

----S.68---Civil Procedure Code (V of 1908), S. 9---Settlement of dispute---Order of Sub-Divisional Canal Office---Warabandi---Jurisdiction of civil court---Scope---Petitioner filed an application before Sub Divisional Canal Officer who accordingly passed an order regarding Warabandi---Respondents preferred a suit along with an application for grant of temporary injunction---Trial Court while hearing the application not only dismissed the same but also rejected the plaint on account of remedy provided under the Canal and Drainage Act, 1873---Appeal whereof filed by respondents was accepted while interpreting S.68 of the Canal and Drainage Act, 1873 to mean that the order of the Sub-Divisional Officer was final, as such the suit was maintainable---Validity---Section 68 of Canal and Drainage Act, 1873, clarified that appeal was provided against the order of Sub-Divisional Canal Officer before the Divisional Canal Officer and order thereof was final---Appellate Court had fell in error while holding that no right of appeal was provided against the order of Sub-Divisional Canal Officer---Trial Court had rightly arrived at the conclusion that in presence of right of appeal before the higher forum provided under the special law remedy of civil court was pre-mature---Constitutional petition was allowed.

Muhammad Arshad Jehangir Jhoja for Petitioner.

Nemo. for Respondent.

2021 M L D 1126

[Lahore]

Before Anwaarul Haq Pannun, J

MUHAMMAD NAWAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.9464-B of 2021, decided on 19th March, 2021.

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

----Ss.497 & 382-B---Penal Code (XLV of 1860), S.322---Qatl-bis-sabab---Period of detention to be considered while awarding sentence of imprisonment---Bail, grant of---Scope---Accused, who was a doctor by profession, sought post-arrest bail in FIR wherein he was charged under S.322, P.P.C. and it was alleged that he committed qatl-bis-sabab of the son of complainant by showing negligence while conducting surgery on the deceased---Punishment for qatl-bis-sabab provided under S.322, P.P.C., was 'Diyat' only---Accused could be kept in confinement in case he committed default in payment of Diyat amount and S.382-B, Cr.P.C., did not apply in such like case, as such, incarceration of accused during trial would amount to punishment before his conviction as well as against the mandate of law vis-a-vis applicability of S.382-B, Cr.P.C.---Petition for grant of post-arrest bail was allowed.

Muhammad Shafi v. The State and another 2020 PCr.LJ 1530; Israr Hussain Shah v. The State and 2 others 2020 PCr.LJ 1164 and Shah Hussain v. The State PLD 2009 SC 460 rel.

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

----S.497---Bail---Scope---Accused was entitled to bail as of right in an offence which does not entail the punishment of imprisonment because if he is refused bail the period as under trial prisoner would amount to a case of double jeopardy.

Ch. Tahir Nasrullah Warraich for Petitioner.

Ms. Noshe Malik, Deputy Prosecutor General for the State along with Ansar, S.I. with record.

2021 M L D 1146

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal, J

GUL MUHAMMAD and others---Petitioners

Versus

ALLAH DIWAYA (DECEASED) through his Legal Heirs and others---Respondents

Civil Revision No.803-D of 2002, heard on 20th January, 2020.

(a) Islamic Law---

----Inheritance---Right of---Correction in the revenue record---Limitation---Scope---Devolution of inheritance of the property of the deceased without leaving male successor---Estate (suit-property) was transferred in the year 1917 to the widow who later transferred the same to her daughter---Plaintiffs (nephews of the deceased) contended that they were entitled to get share from the estate as after the death of their predecessor-in-interest suit land should have devolved upon all his legal heirs who were alive---Petitioners/defendants contended that the claim of the plaintiffs/respondents was hopelessly time-barred--Held, admittedly, the parties of the lis were Muslims and they were bound to Sharia---Predecessor-in-interest of the petitioners died in the year 1917 leaving behind one widow and one daughter only whereas the respondents/plaintiffs (being nephews of the said predecessor-in-interest) were collateral and all legal heirs were entitled to get their respective share---Even the pedigree mentioned in the plaint was not rebutted by the petitioners/defendants---No concept of limited owner existed in Islam and as per Islamic Law, as described in the Surah tul Nisa of the Quran, after the death of a Muslim, his property was to be evolved upon all his legal heirs---Respondents/plaintiffs, in the present case, were also entitled to inherit from legacy of the deceased---Predecessor-in-interest, in the present case, died in the year, 1917 and the moment he closed his eyes, all his legal heirs, according to Sharia, became absolute owners of their respective shares in estate of the deceased---Without resorting to the legal course of independent transaction, said ownership could not be taken away by means of any unauthorized entry into the revenue record ---If any entry was made in clandestine manner with collusiveness of the revenue staff, such entry was devoid of any legality or creating any valid right---Registration and sanctioning of mutation of inheritance was mere a formality to update the official record whereas all legal heirs of a deceased became owners of the property to the extent of their respective share until and unless they themselves legally alienated their said share/right further and they also became joint owners in the estate having constructive possession over their share---No limitation ran against the inheritance matters---No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below---Revision was dismissed, in circumstances.

Muhammad Ishaq v. Federation of Pakistan PLD SC 278; The Federation of Pakistan through Secretary Law and Parliamentary Affairs. Islamabad v. Muhammad Ishaq and another PLD SC 273; Khan Muhammad through L.Rs. and others v. Mst.Khatoon Bibi and others 2017 SCMR 1476; Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869; Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Shabla and others v. Mst. Jahan Afroz Khilat and others Civil Appeals Nos.1520, 1521, 1522 of 2016 ref.

(b) Constitution of Pakistan---

----Art.227---Provisions relating to the Holy Quran and Sunnah---Principles of Quran and Sunnah were declared as Supreme Law of Pakistan in terms of Art. 227 of the Constitution and all provisions, rules, regulations were to be legislated and framed within the precincts of Islamic Principles---Allah Almighty had ordained the Muslims to decide their disputes according to the Principles of Quran (Shariah) which were made obligatory as described in Surah tul Maida of Quran.

(c) Islamic law---

----Inheritance---Shares of heirs---Scope---Rights or shares of each and every Muslim inheritor in the estate of his deceased propositus was absolutely, conclusively and finally determined in the Holy Quran---Shares of Muslim inheritors were definite in nature and were described in Surah tul Nisa of the Holy Quran--- Shares of the legal heirs had also been described in Hadith "Sahi Bukhari Sharif".

(d) Punjab Laws Act (IV of 1872)---

----S.5---Muslim Personal Law (Shariat) Application Act (XXVI of 1937), S.2---Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948, S.3---Muslim Personal Law (Shariat) Application Act (V of 1962), S.2---Inheritance---Rule of decision---Scope---Even after the establishment of British Rule over Subcontinent (India), the laws relating to a community were safeguarded under the Punjab Laws Act, 1872---Section 5 of the Punjab Laws Act, 1872 stipulated that rule of decision would be Islamic Law where the parties were Muslims and since then Shariat Laws were made applicable where the parties were Muslims.

Muhammad Jan and another v. Rafi-ud-Din and others PLD 1949 Privy Council 18; Abdul Karim and others v. Ghulam Ghaus PLD 1951 Lah. 386; Mst. Qaiser Khatoon and 12 others v. Maulvi Abdul Khaliq and another PLD 1971 SC 334 and Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501 ref.

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

----S.115---Revisional jurisdiction of High Court---Concurrent findings---Scope---Petitioners had failed to point out misreading and non-reading of evidence and had also not identified any jurisdictional defect---Concurrent findings of fact were against the petitioners which did not call for any interference by the High Court in exercise of its revision jurisdiction in absence of any illegality or any other error of jurisdiction---Revision petition was dismissed, in circumstances.

Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 ref.

Malik Muhammad Tariq Rajwana for Petitioner.

Ex parte for Respondent.

2021 M L D 1165

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal and Jawad Hassan, JJ

MUHAMMAD YAQUB QURESHI---Appellant

Versus

CHIEF LAND COMMISSIONER and others---Respondents

Intra Court Appeal No.13 of 2021, decided on 1st March, 2021.

Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Mandamus, writ of---Scope---Jurisdiction qua mandamus, being discretionary and extraordinary, is exercised in grave cases rather than in routine---Such discretion is exercised in all cases where there is a specified legal right and no specific legal remedy is available for enforcing such right---Applicant, in order to obtain a writ or an order or direction in the nature of mandamus, has to satisfy the Court that he has a legal right towards the performance of a legal duty by the party against whom mandamus is sought and such right must be subsisting on the date of the petition.

Asadullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445 rel.

2021 M L D 1173

[Lahore]

Before Shahid Bilal Hassan, J

Ch. ABDUL RASHID ASEEM (DECEASED) through L.R.---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No.23650 of 2020, decided on 16th June, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Cancellation/resumption of lease of land---Petitioner sought direction to the authorities to allot government land to him through private treaty---Validity---Land in question was leased out to the petitioner for a period of twenty years for a specific purpose i.e. construction of library and the lease had already expired in the year 2016---Petitioner had failed to fulfil the commitment made for creating a Trust in respect of the library in question---Land in question had to be resumed by the State irrespective of the fact that proprietary rights had been given to the petitioner and construction had been made by him---Occupation of the petitioner over the property in question had rightly been declared as illegal as petitioner had not deposited lease amount to the treasury of Government---Status of petitioner after cancellation of lease in his favour was nothing but as an encroacher---Constitutional petition was dismissed.

Javed Naseem for Petitioner.

Zafar Raheem Sukhera, Assistant Advocate General for the State.

2021 M L D 1192

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Sadiq Mahmud Khurram, JJ

ASIF KHAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.965 of 2018, decided on 26th October, 2020.

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

----Ss.9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.5 & 6---Transportation of narcotics---Reports of Government Analysts---Result of test or analysis---Scope---Accused was alleged to have apprehended while transporting 40 kilograms of charas---Complainant stated that 36 packets of charas, each packet containing 12 lithers, total weighing 40 kilograms, were recovered from the gas cylinder of the car and from each lither, he separated 5/5 grams of charas for chemical analysis but when the case property was de-sealed in Court, the number of lithers contained in all the packets was found as 443 and total weight of the contraband came to 40 kilograms and 924 grams---Number of lithers were also different in each packet---Prosecution had failed to bring on record the individual weight of each packet of charas and lithers, which fact being irreconcilable went to the root of the case and badly damaged the case of the prosecution---High Court observed that it could not be determined whether the case property produced before the court was the same property which was taken into possession from the accused at the time of occurrence and subsequently handed over to Moharrar malkhana---Report of Chemical Examiner was vague since it did not show the nature of protocols observed and tests applied---Appeal against conviction was allowed, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

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

----S.9---Possession of narcotics---Punishment---Scope---Benefit of doubt---Provisions of Control of Narcotic Substances Act, 1997, provide stringent punishments, therefore, its proof has to be construed strictly and the benefit of any doubt in the prosecution case must be extended to the accused.

Muhammad Hashim v. The State PLD 2004 SC 856 ref.

(c) Criminal trial---

----Sentence---Harder the sentence, stricter the standard of proof.

Ameer Zeb v. The State PLD 2012 SC 380 ref.

Barrister Osama Ameen Qazi for Appellant.

Sajjad Hussain Bhatti, DPG with Shafiq ul Hassan, SI for the State.

2021 M L D 1208

[Lahore (Rawalpindi Bench)]

Before Rasaal Hasan Syed, J

DUA ANEEQA----Petitioner

Versus

ADNAN JAHANGEER and 2 others----Respondents

Writ Petition No.2632 of 2020, decided on 25th February, 2021.

Family Courts Act (XXXV of 1964)---

----S.5---During execution proceedings dispute between parties was with regard to recovery of amount in lieu of gold ornaments---Validity---Respondent-husband was to either give gold ornaments in execution of decree or was liable to pay market value of the same so as to enable petitioner-wife to purchase gold ornaments from market---Executing Court did not commit any error of law in seeking information from Sarafa (Gold) Market about prevailing rate of gold---Option was with petitioner-wife to enforce recovery of gold ornaments which respondent-husband could not avoid--- Executing Court was to execute decree by ensuring recovery of gold ornaments from respondent-husband, who was to satisfy decree by providing requisite gold ornaments or make payment of market price thereof--- High Court in exercise of Constitutional jurisdiction set aside order passed by Lower Appellate Court as order of Executing Court did not suffer from any error of law and was in accordance with law--- Constitutional petition was allowed, in circumstances.

Mst. Humaira Majeed v. Habib Ahmad and 2 others PLD 2012 Lah. 165; Mst. Ayesha Shaheen v. Khalil Mehmood and another 2013 SCMR 1049; Mst. Mehbooba v. Abdul Jalal 1996 SCMR 1063 and Haji Muhammad Nawaz v. Samina Kanwal and others 2017 SCMR 321 ref.

Muhammad Shakeel Mughal for Petitioner.

Malik Kamran Hassan for Respondent.

2021 M L D 1234

[Lahore]

Before Shujaat Ali Khan, J

SIRAJ AHMAD----Petitioner

Versus

REGISTRAR LAHORE HIGH COURT, LAHORE----Respondent

Objection Case Diary No.20037 of 2017, decided on 24th February, 2017.\

Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Office objection to maintainability of Constitutional petition---Question before High Court was whether a Constitutional petition, whereby order of Single Judge sustaining office objection to a Constitutional petition was impugned, was maintainable---Held, that petitioner being aggrieved of order passed by Single Judge sustaining office objection, could resort to appropriate proceedings instead of filing Constitutional petition---Order passed by a Single Bench of High Court could not be assailed before any other Single Bench of the High Court --- Constitutional petition was therefore not maintainable.

Ch. Muhammad Akram v. Registrar, Islamabad High Court and others PLD 2016 SC 961; Civil Aviation Authority Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781; Dr. Malik Hafeez ur Rehman and 18 others v. Pakistan Medical Association, Jhelum through President and 5 others 2013 MLD 651; Union of Civil Aviation Employees, Lahore and another v. Civil Aviation Authority, Islamabad PLD 1993 Lah. 306 and Siraj Ahmad, Advocate High Court v. Lahore High Court Boar Association and others W.P. No.18129 of 2014 distinguished.

Muhammad Ikram Chaudhry and others v. Federation of Pakistan and others PLD 1998 SC 103 rel.

Petitioner in person.

2021 M L D 1263

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

MUHAMMAD QASIM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.85097 of 2017 and Murder Reference No.464 of 2017, heard on 16th February, 2021.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Chance witnesses---Delayed post-mortem examination---Scope---Accused was alleged to have murdered his brother's wife in the presence of her brother and father---Brother and father of deceased had stated that on the day of occurrence, they had gone to the house of deceased to inquire about the quarrel allegedly taken place between the accused and the deceased regarding which they were informed by the deceased on telephone but no call data in that regard was produced---Eye-witnesses were chance witnesses but they had failed to establish their presence at the place of occurrence---Post-mortem examination was conducted with a delay of 6 hours which was suggestive of a real possibility that time was consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted---Appeal against conviction was accepted, in circumstances.

Muhammad Rafique v. The State 2014 SCMR 1698 and Irshad Ahmad v. The State 2011 SCMR 1190 ref.

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

----S.302(b)---Qatl-i-amd---Recovery of weapon---Scope---Accused, during interrogation, was alleged to have disclosed and got recovered the crime weapon from his house---Report of Forensic Laboratory showed that crime empty was sent along with the weapon---Held; possibility of manufacturing of the crime empty before its dispatch to the Forensic Laboratory could not be ruled out of consideration---Report of Forensic Laboratory was discarded, in circumstances.

(c) Criminal trial---

---Benefit of doubt---Scope---Several circumstances are not necessary for giving benefit of doubt to the accused---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused will entitle accused to its benefit not as a matter of grace or concession, but as of right.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Nazir Hussain Appellant.

Rai Akhtar Hussain, DPG with Sabir S.I. for the Complainant/State.

2021 M L D 1275

[Lahore]

Before Rasaal Hasan Syed, J

IJAZ ALI---Petitioner

Versus

ROBINA KAUSAR and others---Respondents

Writ Petition No.26235 of 2017, heard on 18th March, 2021.

Family Courts Act (XXXV of 1964)---

----S.9---Written statement---Documents not produced along with written statement---Scope---Petitioner/defendant assailed the dismissal of his application for permission to produce receipts of dowry articles---Validity---Plea to produce receipts of articles was vague and unspecific---Petitioner had not alleged that the said receipts pertained to the dowry articles being claimed by respondent in her suit---Stance of the petitioner was that his parents had given some things from their own funds for which they had receipts---Petitioner had not filed a cross-suit or cross-claim to recover those articles and the alleged receipts might have been relevant in a case where the petitioner sought recovery thereof but were not relevant in determination of the claim of respondent---Unspecific receipts with no details of items as to which they related, being private documents, the possibility of their fabrication could not be ruled out particularly in a situation where copies of the documents were never produced at the initial stage and no details were given in the written statement nor were the documents relied upon or confronted to the witnesses of the respondent or even endeavoured to be produced during the oral evidence of the petitioner---Constitutional petition was dismissed.

Allah Bakhsh v. Mst. Fathe Bibi 1994 SCMR 1945 and Rab Nawaz and 8 others v. Muhammad Amir and another 1999 SCMR 951 ref.

Ms. Sajida Awan for Petitioner.

Muhammad Kafeel Salik Niaz for Respondents.

2021 M L D 1305

[Lahore]

Before Syed Shahbaz Ali Rizvi and Anwaarul Haq Pannun, JJ

ABDUL RAUF alias KALA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.258868-J of 2018 and Capital Sentence Reference No.14-T of 2018, heard on 16th February, 2021.

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

----Ss.302(b) 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Delay of one and half hour in lodging the FIR---Scope---Accused were charged for committing the murder of four persons and injuring one person---Motive behind the occurrence was stated to be a criminal litigation pending between the parties---Distance between the police station and the place of occurrence was eight kilometres---Dead bodies of all the four deceased were transmitted to the hospital on the same night and the post-mortems were conducted within four hours---Importantly, injured was medically examined same day---First Information Report had been lodged with promptly, thus the chances of deliberation and consultation on the part of the complainant were ruled out---Circumstances established that the accused had acted in a callous and brutal manner and committed cold blooded murder of the four innocent persons and also caused serious firearm injuries to the injured witness, hence he deserved no leniency---Appeal against conviction was dismissed accordingly.

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

----Ss.302(b) 324 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Ocular account corroborated by medical evidence---Scope---Accused were charged for committing murder of four persons and injuring one person of complainant party---Record showed that the ocular account in the case had been furnished by complainant and injured (close relatives of the deceased)---Both the eye-witnesses were residents of the same place where the occurrence took place and they had reasonably explained their presence at the place and time of occurrence---Fact that injured witness also sustained firearm injuries on his right leg and he was taken to the hospital by the complainant within one hour of the occurrence established that they both were present at the spot---Even otherwise, said witnesses remained consistent on all material points and evidence of the said witnesses could not be discarded merely on account of their inter-se relationship as well as their relationship with the deceased persons---Medical evidence fully corroborated with the ocular account and did not find any material contradiction qua the role of the accused---Plea taken on behalf of the accused that it was an unseen occurrence which was committed in the darkness of night and the accused had been substituted with the actual culprits, however, in view of the fact that the parties were known to each other and any mistake in identifying the accused by the witnesses could not arise, was farfetched thus, rejected---Substitution of accused by the complainant in such like murder case was not possible---Circumstances established that the accused had acted in a callous and brutal manner and committed cold blooded murder of the four innocent persons and also caused serious firearm injuries to the injured witness, hence he deserved no leniency---Appeal against conviction was dismissed accordingly.

Khalid Saif Ullah v. The State 2008 SCMR 688 and Irshad Ahmad and others v. The State and others PLD 1996 SC 138 rel.

(c) Criminal trial---

----Witness---Statements of related witnesses---Reliance---Scope---Mere relationship of the witnesses is not a ground itself to discredit their testimony.

Khizar Hayat v. The State 2011 SCMR 429 rel.

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

----Ss.302(b) 324 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Motive was proved---Scope---Accused were charged for committing murder of four persons and injuring one person of complainant party---Motive in the case had not been denied by the accused and he also did not produce any defence evidence to establish his alleged false involvement in the case---Circumstances established that the accused had acted in a callous and brutal manner and committed cold blooded murder of the four innocent persons and also caused serious firearm injuries to the injured witness, hence he deserved no leniency---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Weapon of offence was recovered from the accused---Reliance---Scope---Accused were charged for committing murder of four persons and injuring one person of complainant party---Report of Forensic Science Agency showed that the weapon of offence recovered from the accused was found to be in mechanical operating condition with safety features functioning properly---Said corroborative piece of evidence fully established culpability of the accused---Circumstances established that the accused had acted in a callous and brutal manner and committed cold blooded murder of the four innocent persons and also caused serious firearm injuries to the injured witness, hence he deserved no leniency---Appeal against conviction was dismissed accordingly.

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

----S. 6---Penal Code (XLV of 1860), Ss. 302(b) 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Terrorism---Scope---Accused were charged for committing murder of four persons and injuring one person of complainant party---For determining the issue whether the offence fell within the realm of Anti-Terrorism Act or not, the nature of offence was to be seen in the light of mode of occurrence---In the present case, a specific motive resulting into occurrence had been alleged, which was private and of personalized nature and had no nexus with S.6 of Anti-Terrorism Act, 1997; it could not be said that the same fell within the ambit of Anti-Terrorism Act, 1997---Motive for the occurrence in case was personal enmity inter-se the parties, as such S.7 of Anti-Terrorism Act, 1997 did not attract---Convictions and sentences of the accused under Anti-Terrorism Act, 1997 were set-aside, in circumstances.

Muhammad Bilal v. The State and others 2019 SCMR 1362 rel.

Abid Saqi for Appellant.

Muhammad Moeen Ali, Deputy Prosecutor General for the State.

Malik Matee Ullah for the Complainant.

2021 M L D 1327

[Lahore]

Before Malik Shahzad Ahmad Khan, J

MUHAMMAD AFZAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.66251-B of 2020, decided on 16th December, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss.506, 186, 109 & 34---Prevention of Corruption Act (II of 1947), S.5---Criminal intimidation, obstructing public servant in discharge of public functions, abetment, common intention, criminal breach of trust by public servant---Bail, refusal of---Third bail petition had been filed on the ground that the complainant had made a statement before FIA authorities that he was not present at the spot at the time of occurrence---Record showed that no application for grant of post-arrest bail on the said fresh ground had been moved by the petitioner before the court of first instance after dismissal of his second post arrest bail petition by that Court---Even otherwise there were also other prosecution witnesses apart from the complainant, therefore, mere obliging statement of one prosecution witness was of no avail to the petitioner---Even otherwise petitioner had not placed on the record any statement of the complainant wherein he stated that he was not present at the spot at the time of occurrence---Allegation against the petitioner was that he along with his co-accused was caught red handed while committing theft of electricity for the cotton factory---Although the offences mentioned in the FIR did not fall within the ambit of prohibitory clause of S.497, Cr.P.C., but accused could not claim bail as a matter of right if his case did not fall within the ambit of prohibitory clause of S.497, Cr.P.C---In the present case, petitioner and co-accused committed theft of electricity and as such he and co-accused caused colossal loss to the Govt. Exchequer---Complainant also alleged that when he along with the other staff of Electric Supply Company tried to remove the electricity meter, the petitioner and co-accused started quarrelling with them and also gave them abuses as well as threats---Case of petitioner, therefore, fell under exceptional circumstances---Petition for bail was dismissed in limine.

Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 and Haji Muhammad Nazir and others v. The State 2008 SCMR 807 rel.

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

----S.497---Bail, refusal of---Exceptional circumstances---Scope---Even in the cases which did not fall within the ambit of prohibitory clause of S.497, Cr.P.C., the concession of bail might be declined to an accused if his case fell under exceptional circumstances.

2021 M L D 1332

[Lahore]

Before Shehram Sarwar Ch., J

AQIB SALEEM---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.10737-B of 2021, decided on 4th March, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.377---Unnatural offences---Bail, grant of---Scope---Accused was alleged to have committed sodomy with the son of complainant---No injury sign around anal nor marks of violence were observed by doctor on the body of the victim---Deoxyribonucleic Acid (DNA) test report of the victim was in the negative---Accused was not involved in any other case of such like nature and was not required by the police for the purpose of investigation---Case of accused called for further inquiry within the ambit of subsection (2) of S.497, Cr.P.C.---Petition for grant of bail was allowed, in circumstances.

Muhammad Nauman Hanif v. The State and another 2016 SCMR 1399 and Mohsin v. The State and others 2017 SCMR 290 ref.

Nisar Mehboob Tiwana for Petitioner.

Ahmad Saeed, DPG along with Ghulam Hussain ASI with record.

2021 M L D 1341

[Lahore]

Before Shahid Mubeen, J

SULTAN (DECEASED) through LRs---Petitioner

Versus

MEMBER BOARD OF REVENUE and another---Respondents

Writ Petition No.19904 of 2010, decided on 7th February, 2019.

Punjab Board of Revenue Act (XI of 1957)---

----S.7---Board of Revenue, revisional jurisdiction---Evidence, non-discussing of---Petitioner was aggrieved of order passed by Board of Revenue in exercise of revisional jurisdiction---Plea raised by petitioner was that order passed by Board of Revenue was not based on evidence---Validity---Board of Revenue did not discuss oral as well as documentary evidence of petitioners in shape of Khasra Girdawari and entries contained therein---Order passed by Board of Revenue was based on surmises and conjectures---High Court observed that public functionaries were bound to decide controversies after application of independent mind with reasons---Orders in question were passed in mechanical way without applying independent mind to the fact and circumstances of the case; it was incumbent upon authorities to discuss each and every aspect of case which was lacking--- High Court remanded the matter to Board of Revenue for decision afresh after discussing oral as well as documentary evidence---Constitutional petition was allowed accordingly.

Government of Pakistan through Director-General. Ministry Interior, Islamabad and others v. Farheen Rashid 2011 SCMR 1; Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230; Messrs Saqib Brothers and another v. Messrs Ciba Geigy (Pakistan) Limited 1991 CLC 710 and Pakistan Tobacco Company Ltd. v. Pakistan Chest Foundation PLD 1998 Lah. 100 rel.

Ghulam Farid Sanotra for Petitioner.

Atiq ur Rehman Kiani, Muhammad Javed Iqbal and Muhammad Akbar Hayat Awan for Respondents.

2021 M L D 1360

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

MUHAMMAD ASIF and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.58526/J, PSLA No.46408 and Murder Reference No.293 of 2017, heard on 11th September, 2020.

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

----Ss.302, 109, 148 & 149---Qatl-i-amd, abetment, rioting, armed with deadly weapon, common object---Appreciation of evidence---Benefit of doubt---Night-time occurrence---Source of light---Chance witnesses---Motive, not believable---Recovery of weapon---Negative report of Forensic Laboratory---Scope---Accused along with others was alleged to have murdered the father of complainant on a passage---Photographic narration of the occurrence by both the witnesses by assigning specific injury to each of the accused in an extreme crisis and panic situation was highly improbable and not believable, especially when the occurrence had taken place in the dark hours of night and witnesses had statedly seen the occurrence in the light of motorcycle---Site plan did not show the houses of eye-witnesses around the place of occurrence---Eye-witnesses were chance witnesses and they had failed to establish their presence at odd hours of night---Recovery of 12-bore gun on the pointing out of accused in presence of negative report of Forensic Laboratory was inconsequential---Motive was not believable---Appeal filed by accused was accepted and petition for special leave to appeal filed by complainant against acquittal of accused persons was dismissed.

Muhammad Ahmed and others v. The State and others 2019 SCMR 2006 and Muhammad Rafique v. The State 2014 SCMR 1698 ref.

(b) Criminal trial---

----Suspicion always remains suspicion and cannot take place of proof.

(c) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt in the prudent mind about the guilt of accused entitles him to its benefit not as a matter of grace or concession, but as of right.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Sheeba Qaiser and Kamran Javed Malik for Appellant.

Saif ul Malook for the Complainant.

Rai Akhtar Hussain, DPG for the State.

2021 M L D 1374

[Lahore]

Before Atir Mahmood, J

BARKHA (DECEASED) through Legal Heirs---Petitioner

Versus

AITEZAZ UR RASHEED KHAN---Respondent

Civil Revision No.2654 of 2009, decided on 23rd February, 2021.

Specific Relief Act (I of 1877)---

----Ss.8, 42 & 54---Suit for recovery of possession, declaration and injunction---Fraud---Plaintiff sought recovery of land on the plea that defendant fraudulently got sale deed executed from him--- Suit was decreed by Trial Court in favour of plaintiff but Lower Appellate Court dismissed the same---Validity---Though marginal witnesses of sale transaction of some property could belong to a district other than where property was situated and there was no illegality in such regard---Associating witnesses of some district other than where the property was situated and deal was struck had created doubts---Such doubts further strengthen when defendant admitted to have been Deputy Commissioner of the district where the sale deed was executed and marginal witnesses belonged to---Defendant failed to prove lawful execution of sale deed in his favour---Lower Appellate Court ignored such aspect of the matter and had incorrectly and illegally allowed the appeal and dismissed the suit of plaintiff---High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed, in circumstances.

Abdul Hameed v. Mst. Aisha Bibi and another 2007 SCMR 1808 and Ghulam Muhammad v. Zohran Bibi and others 2021 SCMR 19 rel.

Sheikh Naveed Shehryar, Yasir Islam Chaudhry, Bashir Ahmed Mirza, Ms. Humaira Bashir Chaudhry and Shakeel Farooq Chishti for Petitioner.

Manzoor Hussain Dogar and Ms. Safina Bhatti for Respondent.

2021 M L D 1390

[Lahore]

Before Tariq Saleem Sheikh, J

BILAL AHMAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.10382-B of 2019, decided on 15th March, 2019.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 452 & 34---Qatl-i-amd, house-trespass after preparation for hurt, common intention---Bail, grant of---Contradiction between contents of FIR and medical evidence ---Further inquiry---Scope---Accused sought post-arrest bail, inter alia, on ground that there existed material contradictions in the FIR----Validity---Complainant had alleged that accused had caused him three injuries however the medico-legal report showed only two injuries and there existed no injury on complainant's right ankle, as alleged by complainant---Where there existed conflict between medical evidence with ocular account, then benefit of doubt could be extended to accused at bail stage---Case was therefore one of further inquiry requiring deeper appreciation of evidence---Accused was admitted to bail, in circumstances.

Syed Khalid Hussain Shah v. The State and another 2014 SCMR 12 and Awal Khan and 7 others v. The Sate through AG-KPK and another 2017 SCMR 538 rel.

Muhammad Ahsan Bhoon for Petitioner.

Ch. Muhammad Ishaq, DPG with Saif/SI for the State.

2021 M L D 1395

[Lahore]

Before Ayesha A. Malik, J

JANNAT BIBI---Petitioner

Versus

TALAY BIBI and others---Respondents

Writ Petition No.28997 of 2012, decided on 5th April, 2021.

Civil Procedure Code (V of 1908)---

----O.XVI, R.1---Summons to give evidence or produce documents---Scope---Defendant moved application seeking permission to summon eleven witnesses and to produce seven documents---Trial Court allowed the application whereas Appellate Court dismissed the same---Validity---When a witness was not named in the list of witnesses as required under O.XVI, R.1, C.P.C., such witness could not be subsequently called unless sufficient cause was given---Defendant had cited "inadvertence" as a reason for not mentioning the names of said witnesses in the list of witnesses, which reason was not sufficient since the defendant had essentially relied upon public documents as well as public officers namely Record Keeper and Registry Clerk along with Registry Moharrir amongst others as her witnesses---Said persons were all known and available to the defendant when she had filed her list of witnesses---Order of the revisional court was in accordance with the law and the Trial Court's order to allow the application to decide the case for a just and fair decision in the case was in total negation of the requirements of the law---Constitutional petition was dismissed, in circumstances.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 and Haji Zarwar Khan through L.Rs. v. Haji Rehman Bangash and others 2016 SCMR 1976 ref.

Malik Amjad Pervez for Petitioner.

2021 M L D 1402

[Lahore]

Before Rasaal Hasan Syed, J

SHAHZAD WAHEED---Petitioner

Versus

AGHA KHAN UNIVERSITY and 2 others---Respondents

Civil Revision No.218702 of 2018, decided on 4th February, 2021.

Suit for damages---

----Professional negligence---Proof---Plaintiff sought recovery of damages from defendant hospital for issuing medical test report alleged to be with false results and plaintiff had to travel abroad from where he got another report with different results---Suit was decreed partially in favour of plaintiff but Lower Appellate Court dismissed the suit---Validity---No evidence was available to show any professional negligence of carelessness in preparation of test result---Doctors abroad did not declare disputed report as false and evidence on record reflected that defendant hospital acted with extreme professionalism and second report on return of plaintiff to Pakistan corroborated the report of foreign hospital, which reflected due professionalism and care in testing and preparing reports by defendant hospital---As to foreign visit Witness of plaintiff, as to foreign visit of plaintiff deposed that he had been visiting abroad sometime alone and at others with his family---No assumption could be inferred that plaintiff had any panic attack or went abroad especially because of disputed test report---Claim of plaintiff as to financial losses or mental agony was declined by Trial Court which was not challenged in appeal or cross-objections and the same had attained finality---Findings recorded by Lower Appellate Court to the effect that plaintiff was not entitled to any compensation and that suit of plaintiff was liable to be dismissed, did not suffer from any misreading or non-reading of record---Revision was dismissed, in circumstances.

Ch. Israr Ahmad Bajwa for Petitioner.

Asad Javed for Respondents.

2021 M L D 1415

[Lahore]

Before Syed Shahbaz Ali Rizvi and Tariq Saleem Sheikh, JJ

SHAFQAT MASIH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.769 of 2014 and C.S.R. No.8-T of 2017, decided on 3rd June, 2021.

(a) Administration of justice---

----Duty of Court---Courts were duty bound to decide cases dispassionately on basis of available evidence without being influenced by emotions and where a criminal offence alleged was heinous, Courts should be all the more cautious.

Ismaeel v. The State 2010 SCMR 27; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Ali Raza alias Peter and others v. The State and others 2019 SCMR 1982 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

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

Art. 164 --- Production of evidence that has become available because of modern devices, etc.---Short messaging service ("SMS"), proof and admissibility of ---Scope---SMS was covered by Art. 164 of Qanun-e-Shahadat and was admissible to prove a fact subject to the conditions that fact sought to be proved was relevant (meaning that it must be of consequence to determination of a case); that text was not a hearsay; and that its authenticity was duly established at trial---Even if a defendant's name was on a text message, there may be situations in which it may be necessary for a party to prove some "confirming circumstances" to demonstrate authorship of a text message / SMS.

Ishtiaq Ahmed Mirza and 2 others v. Federation of Pakistan and others PLD 2019 SC 675; Ali Raza alias Peter and others v. The State and others 2019 SCMR 1982; Mian Khalid Perviz v. The State through Special Prosecutor ANF and another 2021 SCMR 522; How reliable is SMS delivery? [Accessed at https://help.sendinblue.comarticles>] and Commonwealth v. Duncan Purdy, 459 Mass. 442 rel.

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

----Ss. 295-C, 295-B & 201---Telegraph Act (XIII of 1885) S.25-D---Qanun-e-Shahadat (10 of 1984) Art. 38---Offences relating to religion---Use Blasphemous and derogatory remarks via Short-messaging Service ("SMS") / text message---Reappraisal of evidence---Burden of proof, discharge of----Scope---Accused were convicted under Ss. 295-C, 295-B, 201, P.P.C. & 25-D of Telegraph Act, 1885; for authoring and sending SMS containing derogatory and blasphemous text---Contention of accused, inter alia, was that evidence was not properly appraised at Trial--Validity---Accused could only be convicted if prosecution established that handset used to send blasphemous SMS belonged to them, or was in their use and that they authored and sent the texts---Important link in the case to establish authenticity of Call Data Record was missing as same was not obtained or produced through the prescribed channels---Recovery of alleged receipt of purchase of SIM jacket and handset was inconsequential as it could not be believed that it was preserved by accused seven months after the alleged purchase---Record of cross-examinations revealed that nobody had seen the accused author the profane texts and said sacrilegious messages were in Roman English, and thus it was doubtful that the accused, being only semi-literate had authored the same---Alleged confession of accused was hit by Art. 38 of Qanun-e-Shahadat and was inadmissible and furthermore was recorded in English which was not native language of accused---High Court observed that upon reappraisal of evidence, prosecution failed to establish charges against accused and impugned judgement was decided in slipshod manner, and same was set aside, and accused were acquitted---Appeals were allowed, accordingly.

Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Hashim Qasim and another v. The State 2017 SCMR 986; Allah Warrayo v. Mst. Ladan and 3 others 2020 MLD 334 and Shankaria v. State of Rajasthan AIR 1978 SC 1248 rel.

(d) Criminal trial---

----Confession, retraction of---Mere fact that accused retracts confession subsequently did not mean that it was not voluntary---Courts must take into account totality of circumstances and find out what prompted accused to make confession in order to determine whether a confession was voluntary and true---Courts should first determine if a confession was voluntary, and if so, whether it was true and trustworthy, and if the first condition was not satisfied, then such confession should be rejected.

Digest of the Law of Evidence Justice Stephen; Pakala Narayana Swami v. Emperor AIR 1939 PC 47; Raza v. The State 2020 SCMR 1185; Woodroffe and Amir Ali, Law of Evidence, 20th Edition, p. 1495; Miranda v. Arizona, (1966) 384 US 436; State of Uttar Pradesh v. Deoman Upadhyaya AIR 1960 SC 1125; Nazir Ahmad v. King Emperor AIR 1936 PC 253; State of Rajasthan v. Raja Ram AIR 2003 SC 3601; Muhammad Ali and others v. The State 2002 PCr.LJ 1631; R. v. Thompson, (1893) 2 QB 12 : 9 TLR 435; Sarkar Law of Evidence, 18th Edition p.648; State of West Bengal v. Kajal Sarkar 2009 Cr.LJ 3250; Wajid Hussain and others v. The State and others 2020 PCr.LJ 543; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Hashim Qasim and another v. The State 2017 SCMR 986 and Allah Warrayo v. Mst. Ladan and 3 others 2020 MLD 334 and Shankaria v. State of Rajasthan AIR 1978 SC 1248 rel.

(e) Constitution of Pakistan

----Art.10 & 10A---Safeguards as to arrest and detention---Right to fair trial---Judicial confession, validity of---Right to legal aid---Scope---Fundamental Rights contained in the Constitution guaranteed legal aid to an arrested person---In judicial confessions, where there was nothing on record to show that an accused was asked whether accused would like to consult a counsel / advocate, then presumption would be that no such inquiry was made to the accused, and thus such confession would be recorded in violation of Fundamental Constitutional Rights.

Shahsawar v. The State 1998 PCr.LJ 1758 rel.

(f) Criminal trial---

----Witness---Credibility of uninterested witness---Scope---Testimony of a person who was seemingly uninterested and had no animosity with an accused may still be rejected if it was corrupt, while an interested witness may be relied upon if he was corroborated by independent evidence.

Waqar Zaheer v. The State PLD 1991 SC 447 and Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.

(g) Criminal trial---

----Motive, proof of---Prosecution was not required to establish motive in every case but if one was alleged, same must be proved and courts may draw adverse inference if it failed to do so.

Hakim Ali and 4 others v. The State and another 1971 SCMR 432; Aminullah v. The State PLD 1976 SC 629; Noor Muhammad v. The State and another 2010 SCMR 97; Amin Ali and another v. The State 2011 SCMR 323 and Muhammad Ali v. The State 2017 SCMR 1468 rel.

(h) Criminal trial---

----Burden of proof---Burden of proof was on prosecution and it was obligated to prove the charge against an accused beyond reasonable doubt---True rule, in criminal cases, was that burden of proof never shifted and was never upon accused to establish his innocence or to disprove facts necessary to establish crime for which accused was indicted---Burden of proof was on prosecution from beginning to end of a trial and applied to every element necessary to constitute a crime.

Lilienthal's Tobacco v. United States, 97 U.S. 237, 266 (1877); Davis v. United States, 160 U.S. 469, 487, 10 S.Ct. 353, 40 L.Ed. 499 (1895); Woolmington v. The Director of Public Prosecutions, [1935] AC 462; Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another PLD 2020 SC 146; The State v. Muhammad Shafique alias Pappo and another PLD 2004 SC 39 and Mst. Asia Bibi v. The State and others PLD 2019 SC 64 rel.

Saif-ul-Malook with Sardar Khalil Tahir Sindhu for Appellants.

Muhammad Moeen Ali, Deputy Prosecutor General for the State.

Muhammad Tauqeer Ashraf with Ghulam Mustafa Chaudhry and Malik Zeeshan Ahmad Awan for Respondents.

2021 M L D 1455

[Lahore]

Before Shahid Jamil Khan and Asim Hafeez, JJ

ABWA KNOWLEDGE VILLAGE (PVT.) LTD. through Director and another---Petitioners

Versus

FEDERATION OF PAKISTAN (through Secretary, National Health Services and another---Respondents

Intra-Court Appeal No.5251 of 2021, decided on 26th January, 2021.

(a) Pakistan Medical Commission Act (XXXIII of 2020)---

----S.19(7)---Admissions Regulations (Amended), 2020-2021, Rgln.4---Expression 'enrolled'---Connotation---Expression 'enrolled' besides being inclusive-covering admission process- and extensive in content, suggests culmination of process of admission - when actually student is admitted, who has cleared all dues and forms part of certified list of students, conveyed to Pakistan Medical Commission in terms of Regulation 4 of Admissions Regulations (Amended), 2020-2021.

(b) Pakistan Medical Commission Act (XXXIII of 2020)---

----Ss.18 & 19---Admissions Regulations (Amended), 2020-2021, Rglns.4, 13 & 14---Constitution of Pakistan, Art. 25---Educational institution---Admission in Medical College---Discrimination---Medical and Dental College Admission Test (MDCAT) examination, condition of---Appellant was a private teaching hospital who assailed conditions imposed on getting admission of students---Validity---Requirement of MDCAT formed condition precedent for enrolment for year, 2021-notwithstanding initiation of process of admission in last quarter of year 2020---Regulations framed regarding requirement of MDCAT, as mandatory condition for admission, manifested no illegality or transgression---When factum of availability of admission criteria in colleges specified in Regulation 13 of Admissions Regulations (Amended), 2020-2021, was available to the exclusion of other private medical and dental colleges, there was no discretionary treatment with appellant---Division Bench of High Court declined to interfere in findings recorded by Single Judge of High Court with reference to scope of settlement and effect thereof were accordingly modified---Intra Court Appeal was dismissed accordingly.

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

----Art.114---Estoppel---Scope---No estoppel against law.

Salman Aslam Butt, Furqan Naveed, Ghulam Mujtaba for Appellant.

Zahid Sikandar, Assistant Attorney-General for Pakistan (on Court's call).

2021 M L D 1473

[Lahore]

Before Anwaar Hussain, J

MUHAMMAD JAVED AZMI---Petitioner

Versus

JAVED ARSHAD---Respondent

Civil Revision No.31217 of 2021, decided on 19th May, 2021.

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

----O.XXXVII,R.1---Suit for recovery of money--- Object, scope and purpose---Real benefit of suit under O.XXXVII, C.P.C. is that unless defendant is able to demonstrate a substantial defence in the case, plaintiff is entitled to judgment forthwith---Public policy behind suits under O.XXXVII, C.P.C. is expeditious disposal of suit involving financial matters---In suit under O.XXXVII, C.P.C. till such time leave to appear and defend is allowed, the defendant cannot file any other interlocutory application.

Khalid Mehmood v. Additional District Judge, West Islamabad and 2 others 2021 MLD 264; Syed Itrat Hussain Rizvi v. Messrs Tameer Micro Finance Bank Limited through Attorney and another 2018 CLD 116; National Transmission and Dispatch Company Limited (NTDC) through Dul Authorized Legal Advisor v. Trust Investment Bank Limited 2017 MLD 1304; Farooque Ahmed v. Raza Muhammad PLD 2007 Kar. 182 and Messrs United Distributors Pakistan Limited v. Ahmad Zarie Services and another 1997 MLD 1835 rel.

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

----O.XXXVII, Rr.2 & 3---Suit for recovery of money on the basis of negotiable instrument---Leave to defend the suit---Pre-conditions--- Summoning of bank record---Respondent-plaintiff sought recovery of money on the basis of dishonoured cheque---Application for leave to defend the suit filed by petitioner-defendant was dismissed by Trial Court after consulting record summoned from Bank---Validity---In order to satisfy itself to the contents of leave to appear and defend, the Court was required not to act in a mechanical manner---Trial Court had to apply its judicial mind to the contents of application for leave to appear and defend---Trial Court was not debarred to probe and conduct such inquiry so as to satisfy itself as to the genuineness and plausibility of defence of defendant---Plaintiff in such suit was not debarred to move application for summoning a document in custody of any person which prima facie would establish before Court that defence taken in application for leave to appear in summary suit was sham and illusory---Trial Court rightly summoned record from Bank duly supported by an affidavit to controvert stance of petitioner-defendant---Revision was dismissed in circumstances.

Saleem Akhtar Qureshi v. Habib ur Rehman 2020 CLC 1289 ref.

2021 M L D 1491

[Lahore]

Before Ali Zia Bajwa, J

KHUSHNOOD BANO---Petitioner

Versus

REGIONAL POLICE OFFICER, FAISALABAD and others---Respondents

Writ Petition No.30787 of 2021, decided on 19th May, 2021.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Alternate efficacious remedy---Scope---In presence of any other efficacious remedy, discretionary relief under Constitutional jurisdiction is not available to any aggrieved person---Whenever an alternative statutory mechanism exists to redress grievance of an aggrieved party, High Court is reluctant to grant any relief under Art.199 of the Constitution.

(b) Punjab Transparency and Right to Information Act (XXV of 2013)---

----Ss.3, 7 & 10---Universal Declaration of Human Rights, 1948, Art.19---United Nations Principles on Freedom of Information---Constitution of Pakistan, Arts. 19-A & 199---Constitutional petition---Right to information---Alternate and efficacious remedy---Petitioner sought direction to police authorities to provide her details of all cases registered against her son---Validity---Petitioner was well entitled to get her grievance redressed under S.3 of Punjab Transparency and Information Act, 2013, which provided that any person could exercise right to information in the manner prescribed by Punjab Transparency and Information Act, 2013---F.I.R. was public document and every person had a right to obtain copy of the same---Petitioner neither opted to avail that adequate alternate recourse to get requisite information regarding criminal cases of her son nor alleged or proved inadequacy or inefficacy of such alternate remedy---High Court before granting relief to a person by exercising its extraordinary jurisdiction must satisfy itself regarding non-availability of any alternate remedy---High Court observed if the Court was inclined to grant relief even in presence of alternate remedy, it should be satisfied that circumstances of case had made other remedy inadequate---In presence of availability of alternate adequate remedy, an aggrieved person could approach High Court only in exceptional circumstances, when available alternative remedies were inadequate to redress grievance of petitioner---Constitutional petition was dismissed, in circumstances.

Ch. Muhammad Ismail case PLD 1996 SC 246; Khalid Mehmood case 1999 SCMR 1881; R. v. IRC, Ex parte Preston case cited as [1985] BTC 208; Court of Appeal (England and Wales) in Regina v. Secretary of State for the Home Department, ex parte Swati, [1986] 1 WLR 477; Glencore Energy UK Ltd. Case [2017] EWHC 1476 (Admin), High Court (Queenʼs Bench Division); Mehboob Ali Malik case PLD 1963 (W. P.) Lah. 575; Dr. Sher Afgan Khan Niazi case 2011 SCMR 1813; Liaqat Hussain Malik case 2012 YLR 1386 and Hakim Ali case PLD 2007 Sindh 415 rel.

Shahanshah Shamil Paracha for Petitioner.

2021 M L D 1506

[Lahore]

Before Ahmad Nadeem Arshad, J

SHAHBAZ---Petitioner

Versus

FAKHIRA BIBI---Respondent

Writ Petition No.31627 of 2021, decided on 21st May, 2021.

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

----Ss.5, Sched. & 10(5)---Dissolution of marriage on the basis of Khula---Reconciliation proceedings---Unwillingness of husband to release wife from matrimonial tie---Family Court passed the decree on the basis of Khula without the consent of defendant/husband and allegedly without providing sufficient opportunity to husband for reconciliation---Held, that Family Court, while passing decree in favour of wife, observed in unequivocal words that the husband was avoiding to make statement in the reconciliation proceedings on one pretext or the other---Family Court showed maximum leniency to enable the husband to make his statement in reconciliation proceedings but he failed to do so despite availing number of opportunities spanning about two months---Family Court had no option but to pass the judgment and decree--- Wife was entitled for the right of Khula, despite the unwillingness of husband to release her from the matrimonial tie---Islam as well as Family Courts Act, 1964, mandate that wife could not be compelled to live with husband against her wishes---Constitutional petition was dismissed, in circumstances.

Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97 ref.

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

----Ss.5, Sched. & 10(5)---Dissolution of marriage on the basis of Khula---Grounds---Cruelty---Wife averred in her plaint that husband had been raising undue demands from her family and used to give mental and physical torture to her and in support of allegation of torture, she referred to the application submitted by her at a police station alleging therein the maltreatment at the hands of her husband---Held, that cruelty on the part of the husband was a valid ground for Khula---Relationship between the parties, in the present, case, were severely strained making it impossible for them to live as husband and wife---Constitutional petition was dismissed, in circumstances.

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

----S. 5, Sched.---Dissolution of marriage---Concept of marriage in Islam---Marriage under Islamic law was a civil contract and not a sacrament; comfort, love and compassion were ordained by Almighty Allah in Holy Quran---Islam had laid down parameters for spouse to live within those bounds and if the parties transgressed those parameters, they should relieve each other i.e. they may break matrimonial tie with kindness.

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

----Ss.10(5) & 14(2)---Dissolution of marriage on the basis of Khula---Bar on appeal--- Decree passed on the basis of Khula had been declared as non-appealable in terms of S.14(2) of the Family Courts Act, 1964, seemingly for the reasons that wife could not be compelled to live with the husband against her wishes; and secondly, to protect wife from costly and prolonged litigation.

Abid Hussain v Additional District Judge, Alipur, District Muzaffargarh and another 2006 SCMR 100 ref.

(e) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Exercise of power in constitutional jurisdiction was discretionary which was to be used in good faith keeping in view all attending circumstances and relevant facts of the case and at the same time the same would be used in just, fair and reasonable way---While exercising its discretionary powers, High Court had to see as to whether the Tribunal or Court acted without jurisdiction or in violation of any relevant statue or law, however, High Court by no stretch of imagination could embark upon re-appraisal of evidence and proceed as if it was hearing an appeal against an order of a subordinate Court---Where a statue did not provide appeal against decision of a Court or Tribunal, constitutional petition under Art.199 of the Constitution was not maintainable only on the ground to re-assess the evidence on record.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 ref.

2021 M L D 1525

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Farooq Haider, JJ

ALLAH BAKHSH alias BAKHSHI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.101-J of 2013, heard on 12th January, 2021.

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

----S.365-A---Anti-Terrorism Act (XXVII of 1997), 7(e)---Kidnapping or abduction for ransom---Appreciation of evidence---Accused was charged that he along with co-accused kidnapped the complainant for ransom---Record showed that accused was specifically nominated by the complainant/victim in the FIR as well as in his statement before the trial court with specific role that after his abduction for ransom by co-accused persons, complainant was illegally detained by the present accused and other co-accused persons in a camp in the Jungle for considerable period---Identification of the accused was having no question mark in the case rather same stood proved beyond the shadow of doubt---Complainant being abductee was the natural witness of the occurrence and during his evidence, he had narrated/explained complete detail of the occurrence and described specific role of the accused---During cross-examination of complainant, his credit could not be shaken and he remained consistent and his evidence had been found as reliable from all angles---Role of the accused in the episode was heavier than the role attributed to co-accused present in said camp and also guarded the abductee/victim during his alleged detention---Circumstances established that the prosecution had proved its case up to hilt beyond shadow of doubt through confidence inspiring evidence against the accused---Appeal against conviction was dismissed accordingly.

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

----S.365-A---Anti-Terrorism Act (XXVII of 1997), 7(e)---Criminal Procedure Code (V of 1898), S.340(2)---Kidnapping or abduction for ransom---Appreciation of evidence---Defence plea---Scope---Accused was charged that he along with co-accused kidnapped the complainant for ransom---Record showed that accused did not himself appear under S.340(2), Cr.P.C. on oath in the court---Documents produced in defence were though got exhibited by the accused yet their contents were not got duly proved---Furthermore, defence version by no way hit the worth of prosecution case---Same could not cause any dent in the case of prosecution, particularly, when any reason to falsely implicate the accused by the complainant/victim/abductee in that case was not on record---Defence plea carried no value in circumstances---Circumstances established that the prosecution had proved its case up to hilt beyond shadow of doubt through confidence inspiring evidence against the accused---Appeal against conviction was dismissed accordingly.

James Joseph for Appellant.

Malik Riaz Ahmed Saghla, Additional Prosecutor General for State.

Rana Mehboob Ali for the Complainant.

2021 M L D 1541

[Lahore]

Before Safdar Saleem Shahid, J

ALAM KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.25357-B of 2021, decided on 17th June, 2021.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, refusal of---Unseen occurrence---Last seen evidence---Extra-judicial confession---Recovery of weapon---Matching of empties---Scope---Accused sought post-arrest bail in FIR registered under S.302, P.P.C---Although the incident was unseen yet the accused was nominated by the complainant on the basis of statements made by two persons who had seen the deceased with the accused on the date of occurrence---Police had recorded statements of two witnesses who had stated that the accused had admitted his guilt before them---Pistol was recovered from the possession of accused and the same had matched with the empties secured from the place of occurrence---Offence alleged against the accused came within the purview of prohibitory clause of S.497, Cr.P.C.---Accused was found guilty during investigation conducted by the police---Sufficient incriminating material was available on record connecting the accused with the commission of offence---Grounds urged by the accused required deeper appreciation of evidence which could not be taken into consideration at bail stage---Petition for grant of bail was dismissed, in circumstances.

Sarfraz v. The State and 2 others 2010 YLR 2678 and Jaleel Ahmad and others v. The State 1995 PCr.LJ 1583 ref.

Rana Muhammad Javed for Petitioner.

Ikram Ullah Khan Niazi, D.P.G. and Khalid Mehmood, ASI with record.

Muhammad Ameen Akhtar for the Complainant.

2021 M L D 1546

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

MUHAMMAD SARFRAZ ANSARI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2378-B of 2020, decided on 5th March, 2021.

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

----S.497---Penal Code (XLV of 1860), Ss.420, 468, 471, 109 & 409---Prevention of Corruption Act (II of 1947), S.5(2)---Cheating and dishonestly inducing delivery of property, forged document, using as genuine a forged document, abetment, criminal breach of trust by public servant, public servant committed or attempt to commit criminal misconduct---Bail, refusal of---Accused was charged that he along with his co-accused fraudulently withdrew an amount of Rs. 52,254,074/- through fake bills of Central Ordnance Depot in favour of four firms---Record showed that co-accused, in whose name the firms were registered and the bogus bills were prepared, was arrested in the case and later on he got recorded his statement under S.164, Cr.P.C.---Review of the statement of co-accused revealed that petitioner was not only the mastermind behind the fraud but also crafted the strategy to get it accomplished---According to the stance of co-accused, as was evident from his S.164, Cr.P.C statement, accused used to pocket major share from the plundered money---At the time of withdrawal of looted amount from the Banks, the petitioner used to stay out by leaving such task to be performed by co-accused---Another co-accused also got recorded his statement under S.164, Cr.P.C, by pointing his fingers towards accused as the main culprit---Probe of FIA further unveiled that during tenure of fraud, the accused amassed wealth, disproportionate to his known sources of income and included two apartments in top most housing schemes---Forensic of cell phone of the accused revealed that he was hand in glove with his co-accused in execution of scam---Record showed that one of the co-accused was granted post arrest bail in the case, however, the case of said co-accused was on much lesser pedestal than the case of present accused, thus, concession of post arrest bail could not be extended to him on the principle of consistency---Severity of white collar crimes could further be measured from the facts that such offences left the victim in financial crises and mental distress---Such offences were not to be placed at lower pedestal---Fraud was an offence only some paces behind robbery---In cases of robbery victims were deprived of their property through force and in cases of fraud similar goals were achieved but through deception---Tentative perusal of record revealed that reasonable grounds to connect the accused with the commission of crime were available on record---Bail petition was dismissed, in circumstances.

State through Collector, Customs and Central Excise, Peshawar v. Sarfraz Khan 1997 SCMR 1293 and Ghulam Ahmed Chishti v. The State and another 2013 SCMR 385 rel.

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

----S.497---Bail---Principle of consistency---Scope---Principle of consistency for grant of bail could be invoked only if the cases of accused persons are of alike nature.

Mudassar Altaf Qureshi for Petitioner.

2021 M L D 1559

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

AQIB JAVED and another---Petitioners

Versus

HIGHER EDUCATION COMMISSION OF PAKISTAN and 7 others---Respondents

Writ Petition No.14339 of 2020, decided on 25th March, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Entry test---Questions in question paper from subject which was not in course outline---Compensatory marks---Scope---Petitioners-candidates were aggrieved of question from a subject introduced in examination paper conducted by Higher Education Commission---Plea raised by petitioners was that said subject was out of course---Validity---If despite not forming part of course outline, said subject was to be made a part of examination process, at least notice should have been issued to candidates concerned that the same would form part of course outline---Marks portion of said subject was made part of examination paper without notice to candidates including petitioners, the same amounted to surprising them at the time of examination taken by them---High Court directed the authorities to give 5 additional marks to the extent of questions to offset the effect of paper which was not from within the course outline to petitioners as compensatory marks and not as grace marks---Constitutional petition was allowed, in circumstances.

Tehseen Mazhar and 24 others v. Vice-Chancellor, University of Punjab and 2 others PLD 2008 Lah. 19 rel.

Falak Sher Watto, Safdar Hussain Sarsana, Sheikh Usman Ali, Syed Jaffar Tayyar Bukhari, and Mehroze Aziz Khan Niazi for petitioners in this and connected petitions.

Fakhar Raza Ajmal Malana, for respondents-HEC.

Ch. Shakil Akhtar Sidhu, Assistant Attorney General for Pakistan.

2021 M L D 1574

[Lahore]

Before Sohail Nasir, J

SAEED-UR-REHMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.20613-B of 2021, decided on 21st May, 2021.

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

----S.498---Penal Code (XLV of 1860), Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting, armed with deadly weapon, common object---Pre-arrest bail, grant of---Un-natural conduct of complainant---Rule of consistency---Scope---Accused was alleged to have hatched a conspiracy to get four persons of the complainant party murdered---Allegations of hatching abetment/conspiracy against the accused and others at an open place a Court's compound, in presence of their rivals, appeared to be unnatural---First Information Report was silent about time, mode and manners of conspiracy---Two principal accused persons who were charged with specific role of firing had been released on bail on the basis of plea of alibi---Two other accused persons with the same allegations of abetment had been allowed bail after arrest by the Sessions Judge and no exception was taken to it by the complainant---Petition for grant of pre-arrest bail was allowed, in circumstances.

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

----S.497---Bail---Conduct of complainant---Scope---Conduct of the complainant during investigation, even at bail stage can be looked into, if it is relevant keeping in view facts and circumstances of the case.

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

----S.498---Pre-arrest bail---Absence of mala fide---Scope---Grant of pre-arrest bail is an extraordinary relief, but if on the material produced before the Court, the case for bail is made out, the absence of elements of mala fide and ulterior motive cannot stand in the way of grant of bail to accused.

Khalil Ahmed Soomro v. The State PLD 2017 SC 730 rel.

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

----S.498---Pre-arrest bail---Examination of merits of the case---Scope---Court while deciding the pre-arrest bail applications is not precluded to examine the merits of the case.

Khair Muhammad v. The State through P.G Punjab and another 2021 SCMR 130 rel.

Ch. Wallayat Ali for Petitioner.

Babar Bilal Awan for the Complainant.

Ms. Rahila Shahid, DDPP for the State.

2021 M L D 1597

[Lahore]

Before Muhammad Tariq Nadeem, J

KHIZAR HAYAT---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.18217-B of 2021, decided on 21st May, 2021.

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

----S.497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Guarantee cheque---Business transaction between parties---Scope---Accused was to pay a certain amount of sum to the complainant for which he issued a cheque, which was bounced due to insufficient funds---FIR was lodged with an explained delay of almost seven months---Accused had submitted a written application to the Investigating Officer with the assertion that he had entered into an agreement with the complainant and that he had issued a cheque mentioned in the FIR as guarantee, which was blank and without date---Investigating Officer had not conducted the investigation in that respect nor had he taken both the ledgers produced by the parties in juxtaposition to ascertain that which ledger was genuine---Nothing was available on record to establish that cheque in question was issued for re-payment of a loan or for fulfilment of any financial obligation, which was sine qua non to attract the provisions of S.489-F, P.P.C.---Offence under S.489-F, P.P.C. was punishable for three years, which did not fall within the prohibitory clause of S.497, Cr.P.C.---Petition for grant of bail was accepted, in circumstance.

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

----S.497---Bail---Non-prohibitory clause---Scope---Where a case falls within the ambit of non-prohibitory clause, concession of bail must be favorably considered and only be declined in exceptional cases.

Jehanzeb Khan v. The State through A.G. Khyber Pakhtunkhwa and others 2020 SCMR 1268; Muhammad Tanveer v. The State and another PLD 2017 SC 733; Riaz Jaffar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

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

----S.489-F---Civil Procedure Code (V of 1908), O.XXXVII---Dishonestly issuing a cheque---Summary procedure on negotiable instrument---Scope---Cheque is a negotiable instrument falling within the domain of O.XXXVII of C.P.C., therefore registration of criminal case under said offence is not to be used as a tool for the recovery of amount for which law provides a separate remedy under the Code of Civil Procedure, 1908.

Qaiser Ali Khan v. The State and another 2017 YLR Note 47 ref.

(d) Criminal trial---

----Person is presumed to be innocent until proven guilty.

Saeed Ahmed v. The State 1996 SCMR 1132 and Muhammad Nawaz v. The State through Chairman, NAB, Islamabad and another PLD 2008 SC 438 ref.

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

----S.497---Bail---Case based on documentary evidence---Scope---Courts have variably leaned favorably in the granting of bail where the case is dependent upon documentary evidence and the same is in possession of the prosecution agency.

Saeed Ahmed v. The State 1996 SCMR 1132 and Muhammad Nawaz v. The State through Chairman, NAB, Islamabad and another PLD 2008 SC 438 ref.

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

----S.497---Bail---Pendency of criminal cases---Scope---Mere registration of cases of similar nature against the accused is no ground to deprive him from concession of bail.

Qurban Ali v. The State and another 2017 SCMR 279 rel.

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

----S.497---Bail---Absconsion---Scope---If a case falls within the remit of further inquiry, mere absconsion of accused will not be an impediment in the way of granting bail.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Ibrahim v. Hayat Gull and others 1985 SCMR 382; Qamar alias Mitho v. The State and others PLD 2012 SC 222 and Attaullah v. The State through A.G. Khyber Pakhtunkhwa and another 2020 SCMR 451 ref.

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

----S.497 --- Bail--- Commencement of trial --- Scope --- Mere commencement of trial is no ground for refusal of bail if the case of accused falls under the ambit of further inquiry.

Nisar Ahmad v. The State and others 2014 SCMR 27 ref.

Zulfiqar A Dhudi for Petitioner.

Muhammad Akhlaq, Deputy Prosecutor General with Asif Awan, ASI.

2021 M L D 1604

[Lahore]

Before Abid Hussain Chattha, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Zonal Head, Lahore Zone (Central)---Petitioner

Versus

ALLIED BANK OF PAKISTAN through Chairman and another---Respondents

Civil Revision No.1390 of 2015, heard on 4th June, 2021.

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

----O.XIV, R.1 & O.I, R.10---Suit for recovery---Fraudulently forging a cheque---Cutting on a cheque authenticated by signatures---Framing of issues by Trial Court---Scope---Plaintiff's suit whereby plaintiff alleged that a cheque issued by plaintiff was fraudulently altered and such altered cheque was encashed by defendant Bank; was dismissed---Contention of plaintiff, inter alia, was that Trial Court did not frame issue with regard to forgery by use of chemical fluid on the cheque in terms of O.XIV, R.1 of C.P.C., and therefore, impugned orders were liable to be set aside---Validity---Trial Court had rightly framed issued in light of contents of the plaint and nowhere in such plaint, use of chemical fluid was alleged and it was only alleged that "someone" made cutting on cheque---Plaintiff had failed to identify such person and made no efforts to make such person party to the suit---Plaintiff's witnesses categorically stated that cutting on cheque was duly signed and no evidence was produced to establish whether signatures on the cheque and those signatures authenticating the cutting on the cheque were forged---Suit was therefore rightly dismissed---Revision was dismissed, in circumstances.

Mst. Rasheedan Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384; Noor Mumtaz and others v. Mst. Azmat-e-Bibi 2012 SCMR 1337; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 and Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 ref.

Muhammad Siddique (Deceased) through L.Rs. and others v. Mst. Noor Bibi (Deceased) through L.Rs. and others 2020 SCMR 483 rel.

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

----O.I, R.10---No effective decree or order could be passed in a suit in absence of a necessary party to the cause.

Muhammad Siddique (Deceased) through L.Rs. and others v. Mst. Noor Bibi (Deceased) through L.Rs. and others 2020 SCMR 483 rel.

Syed Waqar Hussain Naqvi with Ashiq Hussain Hanjra for Petitioners.

Mian Nasir Mehmood for Respondents.

2021 M L D 1613

[Lahore]

Before Jawad Hassan, J

NISHAN AHMAD alias ZEESHAN---Petitioner

Versus

CIVIL JUDGE and others---Respondents

Writ Petition No.31975 of 2021, decided on 24th May, 2021.

Punjab Rented Premises Act (VII of 2009)---

----Ss.15 & 19---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Relationship of landlord and tenant---Proof---Petitioner/tenant denied relationship of landlord and tenant on the plea that his suit for specific performance of agreement to sell was pending decision---Validity---Proceedings in suit for specific performance of agreement to sell were separate and could not be interlinked with proceedings conducted in rent matter, which had its own merit---If owner/landlord of a property was in personal need of his (rented) property, he/she could not be stand for along period until the decision of another subsequent separate proceedings---If petitioner / tenant would succeed in obtaining decree in his favour in suit for specific performance, he could agitate issue of restoration of possession of demised premises---Benefit of agreement to sell could not be extended to him until it stood proved by Court of competent jurisdiction---High Court declined to interfere in concurrent eviction order passed by Rent Tribunal and Lower Appellate Court---Constitutional petition was dismissed, in circumstances.

Mrs. Azra Riaz v. Additional District Judge and others 2021 CLC 623 and Noor-un-Nisa and others v. United Bank Limited through Authorized Officers and 2 others PLD 2021 Lah. 90 rel.

2021 M L D 1633

[Lahore]

Before Muhammad Qasim Khan, CJ

LUQMAN HABIB and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petitions Nos.67129, 46684, 67329 of 2020, 3110 of 2019 and 18311 of 2021, decided on 9th June, 2021.

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

----Ss.295B, 295C & 298A---Constitution of Pakistan, Arts. 2A & 31---Objectionable contents---Injunctions of Islam---Sanctity of the Companions (Sahabah) and last-hood of the Prophet Muhammad (P.B.U.H)---Publication/circulation on social media (facebook)---Caricatures, text and pictures---Public unrest and outrage amongst Muslim majority---Blockade of certain web pages---High Court directed that Government should establish a cell under Pakistan Telecommunication Authority (PTA) including I.T. Experts and Islamic Scholars as members to keep an eye on websites and social media programs, and to take adequate steps for blockage thereof, and initiating legal proceedings, if found content objectionable, defamatory, violating any provision of law, against the beliefs of the Muslims, and against the integrity of State; that government should, for awareness of the general public, establish: firstly, an official website/portal containing authentic copy of Qur'an with translation, Ahadith books, all laws relating to Khatam-e-Nabuwat, articles written on the subject and decisions of the superior courts on this specific issue; secondly, a window/portal for answering the queries about the injunctions of Islam and Khatam-e-Nabuwat by the known Islamic scholars; and thirdly, a specific portal on the said website detailing all authentic Islamic websites/pages; that It was duty of the Authorities to initiate proceedings at their own motion without requiring complaint under Ss.5(2) and 5(3) of Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules, 2020, and Government to amend relevant laws accordingly; that proceedings on complaints lodged against offence involving Islamic Injunctions/Khatam-e-Nabuwat and Namoos-e-Sahabah, to be made available on the website/portal and updated step by step for controlling the sentiments of general public; that specific chapter be inserted in Textbooks of Urdu and Islamiyat from primary to master levels highlighting the last Prophet-hood of Hazrat Muhammad (p.b.u.h); that such website, after establishment, be advertised on media and also on notice boards of Educational and other Government institutions for maximum publicity; and that social media providers must be compelled to establish their sub offices within the country (Pakistan) so that timely interaction could be made in case if any violation of Islamic injunctions or of any Article of Constitution of Pakistan was observed/found, simultaneously enabling the institutions to lay hands on them in case they are directly or indirectly found responsible for such violation---Constitutional petition was disposed of in the said terms.

(b) Constitution of Pakistan---

----Art.5---Loyalty to state and obedience to the Constitution and law---Constitutional duty of the state functionaries to perform their duties to curb the crimes as defined in different statutes of the country.

(c) Constitution of Pakistan---

----Arts. 19 & 19A---Penal Code (XLV of 1860), S. 298---Freedom of speech and information---Reasonable restrictions---Glory of Islam---Defying the religious thoughts---Term "right of expression" could not be stretched to such an extent that it be used as a tool to defy the religious thoughts or sacred personalities of one's religion---Under the umbrella of "freedom of speech and information" not only the Muslim community, in fact the followers of all the religions had been made to suffer immensely---Freedom of expression, speech, tolerance and respect go hand in hand.

(d) Constitution of Pakistan---

----Art.260(3)a---Absolute and unqualified finality of the Prophet-hood of Muhammad (P.B.U.H.), belief in---Khatam-un-Nabiyeen, defined---Status of Prophet Muhammad (PBUH) as per Qur'an was "Seal of the Prophets" (Khatam-un-Nabiyeen)---Qur'an revealed that He was also known by the term Khatam-ul-Mursaleen (Seal of the Envoys)--- Muslims took that to mean that Muhammad (PBUH) was the final Prophet and that no Prophet after him would come at all.

(e) Penal Code (XLV of 1960)---

----S.298A---Companions (Sahaaba) of the Holy Prophet---Defined---Companions were the close confidants of the Prophet (P.B.U.H.)---Companions (Sahabah) were the individuals whom Allah made a means of connecting the whole Ummah until the Day of Judgement to the time, words, sayings and actions of Prophet---Without such connection, the Qur'an could not be passed to the Ummah---Companions sacrificed their wealth and lives for preservation of the message of the Prophet (P.B.U.H.)---Every action and saying of the Prophet was meticulously detailed, recorded and narrated to the following generations by those very Companions.

Bilal Riaz Sheikh, Muhammad Azhar Siddique, Safdar Shaheen Pirzada, Muhammad Faizan Maqsood, Muhammad Usman Sheikh, Zubair Janjua, Faisal Nawaz Bhatti, Zahida Ghaffar, Asif Mehmood Khan, Adnan Paracha, Eisa Usman Ghazi and Irfan Akram for Petitioners.

All the petitioners (in Writ Petition No.3110/2019, Writ Petition No.46684/2020, Writ Petition No.67329/2020 and Writ Petition No.18311/2021) in person.

Asad Ali Bajwa, Deputy Attorney General with Muhammad Usama, Assistant Director (Software), Waqas Riaz, Inspector CEW, Asad Iqbal, S.I. and Nabeel Hussain, S.I./FIA.

Ch. Sarfraz Ahmed Khattana, Deputy Prosecutor General.

2021 M L D 1664

[Lahore]

Before Anwaarul Haq Pannun and Muhammad Amjad Rafiq, J

The STATE through Joint Director (Assets) Regional Directorate, ANF, Lahore---Appellant

Versus

ZAHID LATIF and another---Respondents

Criminal Appeal No.2030 of 2010, heard on 9th June, 2021.

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

----Ss. 9, 6, 2(s), 35, 36 & Sched.---Possession of narcotic substances / drugs---Psychotropic substance---Government Testing to determine nature of recovered substance---Report of analyst---Requisite protocols---Scope---Whatever name a substance was labelled as by a manufacturing company on the injection, tablets or syrup, was for purpose of trading and copyright protection, and could not eject such substance from definition of "psychotropic substance"----Question as to whether material recovered from accused fell within definition of "psychotropic substance" was to be determined in accordance with Ss.35 & 36 of Control of Narcotic Substances Act, 1997, and report of analyst under the same, must contain all protocols of tests applied for examination of contrabands and application of such protocols was more essential when material recovered was "psychotropic substance" or controlled substance.

The State through Regional Director ANF v. Inam Bakhsh and others 2018 SCMR 2039 and Qaiser Javed Khan v. The State through Prosecutor General Punjab, Lahore and another PLD 2020 SC 57 rel.

Muhammad Irfan Malik, Special Prosecutor for ANF for Appellant.

Umar Sharif for Respondent No.1.

2021 M L D 1674

[Lahore (Rawalpindi Bench)]

Before Muhammad Ameer Bhatti, CJ

MUHAMMAD JAHANGIR KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.1501-B of 2021, decided on 2nd August, 2021.

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

----Ss.9 & 51(2)---Criminal Procedure Code (V of 1898), Ss.497---Possession of narcotic substances / drugs---Recovery of narcotic substance from accused---Borderline cases where quantum of recovered narcotic exceeds threshold by meagre amount---Post-arrest bail, grant of---Accused sought bail in case where accused had been charged under S.9(c) of Control of Narcotic Substances Act, 1997---Validity---Alleged recovery of 1170 grams of charas from accused only exceeded one kilogram by 170 grams, which put case of accused within ambit of a borderline case under S.9 of Control of Narcotic Substances Act, 1997---Extent to which accused committed alleged offence under S.9(c) of the Act was to be seen by Trial Court after recording of evidence and accused was not required for any further investigation, and thus case was one of further inquiry within meaning of S.51(2) of Control of Narcotic Substances Act, 1997---Accused was admitted to bail, in circumstances.

Saeed Ahmed v. State through P.G. Punjab and another PLJ 2018 SC 812 and Aya Khan and another v. The State 2020 SCMR 350 rel.

Rai Muhammad Mohsin Bashir for Petitioner.

Sajjad Hussain Bhatti, DPG.

2021 M L D 1705

[Lahore (Multan Bench)]

Before Raja Shahid Mehmood Abbasi and Muzamil Akhtar Shabir, JJ

SADDAM HUSSAIN alias BABU---Petitioner

Versus

The STATE and others---Respondents

Criminal Appeal No.138 of 2020, decided on 25th March, 2021.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Prosecution case was that 1530 grams of charas was recovered from the possession of accused---Record showed that police got recovered contraband from his personal possession---Prosecution had proved the guilt of the accused beyond any reasonable doubt and had successfully discharged its burden through consistent and confidence inspiring evidence---Nothing was on record to suggest any ill-will or animosity against any of the prosecution witnesses---Prosecution case was further strengthened by the positive report of Forensic Science Agency---Consequently, the conviction of the accused recorded through the impugned judgment was maintained, however, sentence of the accused was reduced to the period already undergone by him, which would meet the ends of justice---Appeal was dismissed with said modification in sentence.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Sentence, quantum of---Scope---Prosecution case was that 1530 grams of charas was recovered from the possession of accused---While considering the nature of the substance being less harmful and dangerous as compared to the other narcotic substance like heroin etc, quantity of the recovered substance and other aspects that the accused was the first offender, behind the bars since his arrest i.e. 10-03-2019 and be given an opportunity to mend his ways, the sentence of the accused was reduced by the High Court to the period already undergone by him, which would meet the ends of justice, however, sentence of fine and imprisonment in default thereof shall remain intact---Appeal was dismissed with said modification in sentence.

Khuda Bakhsh v. The State 2015 SCMR 733; The State through Deputy Director (Law) Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi PLD 2017 SC 671 and Mst. Sughran and another v. The State 2021 SCMR 109 rel.

Prince Rehan Iftikhar Sheikh for Appellant.

Muhammad Ali Shahab, DPG for the State.

2021 M L D 1712

[Lahore]

Before Abid Hussain Chattha, J

NASIR ALI---Petitioner

Versus

GOVERNMENT OF THE PUNJAB, through Secretary Excise and Taxation and 3 others---Respondents

Writ Petition No.8666 of 2021, decided on 16th June, 2021.

(a) Motor Vehicles Ordinance (XIX of 1965)---

-----S.2---Constitution of Pakistan, Art.199---Constitutional petition---Locus standi---Counsel for respondent contended that the petitioner did not have locus standi to invoke Constitutional jurisdiction---Maintainability---Held, that if Dredger machine was held to be registerable under the Motor Vehicles Ordinance, 1965 then same Machines would be liable to be registered as such---Persons claiming ownership of similar Machines had a right (locus standi) to contest as to whether such Machines fall within the definition of such law or not and as such whether the Machines were liable to be registered under the said law or otherwise.

(b) Motor Vehicles Ordinance (XIX of 1965)---

----S.2(23)---"Motor vehicle"---Definition---Essential ingredients of S.2(23) of the Motor Vehicles Ordinance, 1965 were firstly, any mechanically propelled Vehicle adapted for use upon road was a 'Motor Vehicle'; secondly, any mechanically propelled Vehicle not adapted for use upon roads but running upon fixed rails was not a 'Motor Vehicle'; thirdly, Any mechanically propelled Vehicle adapted or not adapted for use on roads but used solely upon remises of the owner was not 'Motor Vehicle'; fourthly, Adapted for use upon roads was a sine qua non for any Machine to qualify in the definition of 'Motor Vehicle'; and fifthly, Construction and earth moving Machine which could be mechanically propelled and adapted for use upon roads could qualify to be registered as 'Motor Vehicle' subject to physical examination of the Machine by the Registration Authority to his satisfaction.

(c) Motor Vehicles Ordinance(XIX of 1965)---

-----S.2(24)---Qanun-e-Shahadat (10 of 1984), Art.126---Ownership and possession, presumption of---Registration of motor vehicle, value of---Registration of a Vehicle was not a conclusive proof of ownership or title of a 'Motor Vehicle' but where there were no title documents with respect to ownership or possession of a Machine, the prima facie registration of 'Motor Vehicle' in the name of a particular person may create a presumption in favour of such a person which though rebuttable but may give an unfair advantage to him against the other person---Such registration was definitely going to clog the ownership of a person at least before the Registration Authority in terms of S.2(24) of the Motor Vehicles Ordinance, 1965 which stipulated that owner under the Ordinance meant the person in whose name Motor Vehicle was registered.

(d) Motor Vehicles Ordinance (XIX of 1965)---

----Preamble---Motor Vehicles Ordinance, 1965 had been promulgated to regulate 'Motor Vehicle' of different species and categories for their use upon roads and in furtherance to this basic activity regulate their movement upon roads with respect to traffic, safety of users and establish regulatory data base with respect to registration of all types of 'Motor Vehicle'.

(e) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Factual inquiry and recording of evidence---Matter pertaining to factual inquiry and recording of evidence could not be decided in exercise of extraordinary and discretionary constitutional jurisdiction vested in the High Court under Art. 199.

Ch. Imran Raza Chadhar, Ch. Zaheer Afzal Chadhar and Ch. Qasim Raza Chadhar for Petitioner.

Fahad Ikram and Hamid Rehman for Respondent No.4.

2021 M L D 1745

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal, J

MUHAMMAD ASGHAR---Petitioner

Versus

Mst. GHAFOORAN through Legal Heirs and others---Respondents

Civil Revision No.1127-D of 2004, decided on 13th January, 2021.

(a) Gift---

----Evidence beyond pleadings---Dishonest improvements---Scope---Petitioner claimed that his father orally gifted the entire land to him during his life time but neither disclosed the specific date, time, place nor the names of witnesses in whose presence the oral gift transaction of suit land was made in his favour---Petitioner had to prove the gift through trustworthy corroborative evidence, but no such proof was furnished with respect to offer, acceptance and delivery of possession, as such, he had failed to prove the alleged oral gift---Petitioner, while appearing in the witness box had made unauthorized improvements as the names of witnesses were not mentioned in the plaint---Evidence produced by the petitioner was out of pleadings which could not be considered or discussed, rather was liable to be ignored while deciding the lis---Revision petition was dismissed.

Peer Baksh through LRs and others v. Mst. Khanzadi and others 2016 SCMR 1417; Muhammad Iqbal and another v. Mukhtar Ahmad through LRs 2008 SCMR 855; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Zulfiqar and others v. Shahdat Khan PLD 2007 SC 582; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Combined Investment (Pvt.) Limited v. Wali Bhai and others PLD 2016 SC 730 and Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74 ref.

Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others 2018 SCMR 30 rel.

(b) Gift---

----Necessary constituents of a valid gift are offer by the donor, acceptance by donee and delivery of possession---Any infirmity in proving such constituents vitiates the validity of gift transaction---Bounden duty of the donee/beneficiaries of the transaction to prove the validity of gift such as the offer made by the donor and acceptance of the offer of gift by the donee as well as delivery of possession of gifted property through believable evidence with exact information of day, date, time and presence of the witnesses.

Muhammad Iqbal and another v. Mukhtar Ahmad through LRs 2008 SCMR 855 and Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1 ref.

Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others 2018 SCMR 30 rel.

(c) Gift---

----Three important pre-requisites of a valid gift are an explicit offer of the gift by the donor, acceptance of the gift by the donee and delivery of possession under the very gift to the donee---Said conditions are mandatory in nature and absence of any ingredient renders the very gift invalid.

Allah Ditta and others v. Manak alias Muhammad Siddique and others 2017 SCMR 402; Naveed Akram and others v. Muhammad Anwar 2019 SCMR 1095 and Muhammad Sarwar v. Mumtaz Bibi and others 2020 SCMR 276 ref.

Mst. Sadia v. Mst. Gul Bibi 2016 SCMR 662 and (Civil Petition No. 4459 of 2018) Farhan Aslam and others v. Mst. Nuzba Shaheen and another rel.

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

----S.115---Revision---Conflicting findings of courts below---Scope---Findings of appellate court, in the event of conflict of judgments, are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence.

Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 ref.

Muhammad Amir Khan Bhutta for Petitioner.

2021 M L D 1772

[Lahore (Multan Bench)]

Before Raja Shahid Mehmood Abbasi and Sadiq Mahmud Khurram, JJ

NAEEM AHMAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.91-J of 2016, heard on 29th March, 2021.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Discrepancies and contradictions in statements of witnesses---Scope---Benefit of doubt---Prosecution case was that 212 maunds of charas in 425 plastic bags was recovered from the trailer of the accused persons---Complainant stated that he was using CIA vehicle on the day of occurrence while according to statement of recovery witness and Investigating Officer, he was using vehicle of Police Station---According to recovery witness, they had used electric scale for weighing the recovered charas as well as the samples thereof, but Investigating Officer stated otherwise that the charas was weighed on electric scale and the samples were weighed with "Takri Watta"---Recovery witness stated that the bags were of different colours as some were of white and the others were of blue colour but according to Head Constable/witness, some bags were of yellow colour and some were of white, whereas according to Investigating Officer, the colours of bags were of white yellow and all the bags were of same colours, which meant that no bag was of blue or white colour---Colour of bags and charas was not mentioned in FIR as well as recovery memos, even the bags were not taken into possession by the Investigating Officer and same were also not produced before the Trial Court at the time of recording evidence---Allegedly, 425 plastic bags were concealed under 3-Star Matches cartons and on checking of each bag 20 Kgs of charas, total 212 maunds, was recovered from the accused and out of all the bags of charas, 10/10 grams were separated for chemical analysis, which were 425 in number but according to the report of Forensic Science Agency, the number of submitted items counted to 427, which fact further created dent in the prosecution story---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was allowed, in circumstances.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Scope---Benefit of doubt---Safe custody and transmission of samples of the narcotic from police to Chemical Examiner not established---Effect---Prosecution case was that 212 maunds of charas in 425 plastic bags was recovered from the trailer of the accused persons---Investigating Officer stated that on 03-01-2014, he handed over the case property to Moharrar of police station---Prosecution also examined Head Constable/Moharrar, who stated that on 03-01-2014 Investigating Officer had handed over to him case property comprising of 425 sealed bags of charas and 425 sealed sample parcels thereof for keeping the same in safe custody of malkhana and on 17-01-2014, he handed over the sealed sample parcels of charas to a Constable for their onward transmission to the office of Forensic Science Agency, but according to the attested copy of report of the said agency, the parcels were not deposited therein on 17-01-2014, 18-01-2014 and 19-01-2014 rather the same were deposited on the fourth day i.e. 20-01-2014---Prosecution had absolutely no explanation to offer as to when the sample parcels were lying in the malkhana and were in safe custody of Moharrar/HC in the police station, then why Constable kept the same in his own room that too for almost four days---Though Constable had tried to cover-up that material illegality during cross-examination but he had no answer of his failure to deposit the sample parcels within reasonable period---Firstly, there was no occasion to remove such a large number of sample parcels from the malkhana and secondly there was no justification for Constable to keep the same unsafe in another office---Even otherwise, it was only an oral assertion and it was not clear as to where the sample parcels were kept from 17-01-2014 to 20-01-2014---In the trial, it was essential for the prosecution to establish by cogent evidence that alleged contraband seized from the possession of the accused by Investigating Officer was safely transmitted to the police station and thereafter it was kept in safe custody by Moharrar Malkhana from where the alleged sample parcels were transmitted to the Forensic Science Agency for chemical analysis but a complete chain of safe custody was absolutely missing in the case---Samples so deposited in the office of Forensic Science Agency, therefore, could not be tagged with samples taken from the substance seized from the possession of the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was allowed, in circumstances.

Ikramullah v. State 2015 SCMR 1002 and State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Scope---Benefit of doubt---Original report of Government Analyst was not produced---Scope---Prosecution case was that 212 maunds of charas in 425 plastic bags was recovered from the trailer of the accused persons---Record showed that the original report of Forensic Science Laboratory was not tendered in evidence and instead its attested copy was placed on the record---As per general rule, in order to prove the contents of a document, its author was required to appear in the witness box---However, according to S.36 of the Act, a document purporting to be a report signed by government analyst is admissible in evidence even without calling him as a witness---In order to get benefit of S.36 of the Act, the prosecution was required to produce the original document and not its photocopy even if attested---In order to fill up the lacuna, the prosecution got examined Section Supervisor Narcotic Units, Forensic Science Agency as secondary witness to prove the contents of the Government Analyst Report, said witness during trial produced the attested photocopy of narcotic analysis report as according to him the original report in the case was dispatched on 21-04-2014 which reportedly was not received by the concerned submitting agency, thus, they had issued an attested copy of the original report according to the record of Forensic Science Agency, but the deposition of said witness who during his cross-examination admitted that neither the said report had been prepared by him nor the same contained his signatures in any capacity as a scribe, witness or supervisor---Witness also candidly admitted that he did not conduct the analysis of the samples, therefore, he was unable to state the whereabouts of the sample parcels sent in the case---Said witness was neither author nor signatory of the report, which aspect had further leaned to hold that the document was not brought on record in accordance with law and as such the same could not be considered in any manner---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Siddique alias Bheria v. The State 2005 PCr.LJ 726; Muhammad Bux v. The State 2011 PCr.LJ 1466; Gul v. The State PLD 1977 Kar. 1019 and Rustam Ali Pitali v. The State 2015 PCr.LJ 1762 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating a reasonable doubt in a prudent mind is sufficient to extend the benefit of the same to the accused.

Tariq Pervez v. The State 1995 SCMR 1345; Akhtar Ali and others v. The State 2008 SCMR 6 and Muhammad Zaman v. The State and others 2014 SCMR 749 rel.

Prince Rehan Iftikhar Sheikh and Umar Hayat for Appellants.

Muhammad Ali Shahab v. DPG for the State.

2021 M L D 1793

[Lahore]

Before Sultan Tanvir Ahmad, J

DIN BADSHAH and 5 others---Petitioners

Versus

BALAY KHAN (DECEASED) through L.Rs.---Respondent

Civil Revision No.1122 of 2013, heard on 22nd June, 2021.

Punjab Border Area Regulation (MLR 9 of 1959)---

----Paras. 14 & 15---Specific Relief Act (I of 1877), Ss. 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and injunction---Civil Court, jurisdiction of---Petitioners/plaintiffs assailed mutation of inheritance attested in favour of respondents/defendants---Plaint was rejected by Trial Court and Lower Appellate Court on the ground that jurisdiction of Civil Court was barred---Validity---Jurisdiction of Civil Court was ousted under Paras. 14 & 15 of Punjab Border Area Regulation, 1959, except the matters not covered thereunder---Both the Courts below while rejecting plaint did not discuss as to whether real contest between parties was allotment of property or dispute was regarding transaction subsequent to allotment or question to be determined was about legal heirs and inheritance of deceased allottee--- Such question could be determined by providing a chance to parties to lead their evidence and exhibit relevant documents---Parties without bringing relevant documents on record by way of making them exhibits were unable to admit or deny documents attached with petition under S.115 C.P.C.---High Court set aside judgments and decrees passed by two Courts below and remanded the matter to Trial Court as parties neither admitted nor denied the documents---High Court directed the Trial Court to decide application under O.VII, R.11, C.P.C. after framing of issue of jurisdiction and providing opportunity to parties to lead evidence on the issue---Revision was allowed accordingly.

Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others 2004 SCMR 612; Wali Muhammad v. Ellahi Bakhsh through LRs. and others 2005 SCMR 1526; Abdul Rehman v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others PLD 1989 SC 246; Subedar Sardar Khan through Legal Heirs and others v. Muhammad Idrees through General Attorney and another PLD 2008 SC 591; Mir Sahib Jan v. Janan 2011 SCMR 27; Begum Hafizunnisa Qureshi and others v. Shaikh Muhammad Hussain and others 2003 CLC 1156 and Mehr Muhammad Siddique v. Pervaiz Iqbal 2011 CLC 128 ref.

Province of Punjab and others v. Member (Colonies) Board of Revenue, Punjab and others 1986 SCMR 529; Shah Nawaz v. Umar Daraz and 9 others 1999 CLC 1883; Muhammad Nawaz and 2 others v. Muhammad Khan and 9 others 2009 CLC 663 and Kharaitey and 2 others v. Border Allotment Committee and 2 others PLD 1971 SC 430 rel.

Ghulam Fardi Sanotra for Petitioners.

Sh. Fazal Elahi Shahid for Respondent.

2021 M L D 1838

[Lahore (Multan Bench)]

Before Mirza Viqas Rauf and Ahmad Nadeem Arshad, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MULTAN and another---Applicants

Versus

MUHAMMAD ANS and others---Respondents

Review Application No.34 of 2019 in I.C.A. No.75 of 2019, decided on 3rd June, 2021.

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

----S.114 & O.XLVII, R.1---Review---Prima facie error---Review jurisdiction could not be invoked as a routine matter or to re-hear a case which had already been decided-Points already raised and considered could not be re-agitated in review jurisdiction---Judgment could be reviewed only when the error was apparent on the face of the record and that it must be so manifest, so clear, that no Court could permit such an error to remain on record.

Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others 2007 SCMR 755 and Mehmood Hussain Lark and others v. Muslim Commercial Bank Limited and others 2010 SCMR 1036 rel.

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

----S.114 & O.XLVII, R.1---Review---New material, discovery of---Availability at the time of trial---Prior Review application of the Petitioners against the dismissal of the Intra Court Appeal was dismissed as withdrawn---Validity---Held, that most essential requirements for invoking review jurisdiction of a Court was that important evidence having a material bearing upon the merits of the case and decision thereof was subsequently discovered, which was neither in the possession nor in the knowledge of the aggrieved party before passing of the judgment/order sought to be reviewed and further that the important evidence referred to was in existence when the judgment/order was made-Review application was dismissed accordingly.

Abdul Hakeem and another v. Khalid Wazir 2003 SCMR 1501 rel.

Muhammad Ali Siddiqui for Applicant.

Muhammad Aurangzeb Gillani for Respondents.

2021 M L D 1859

[Lahore]

Before Safdar Saleem Shahid, J

QAMAR SHAHZAD---Petitioner

Versus

JUDGE FAMILY COURT, FEROZEWALA and 4 others---Respondents

Writ Petition No.32340 of 2021, decided on 25th May, 2021.

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

----Ss.5, Sched. 8(2), 9 & 10---Family case---Written-statement, filing of---Scope---Held, that filing of written-statement was not essential.

Manzoor Elahi v. Zulaikhan Bibi and another PLD 2009 Isl. 4 ref.

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

----Ss.5, Sched., 8(2), 9 & 10---Civil Procedure Code (V of 1908), O.VIII, R.10---Suit for recovery of maintenance allowance etc.---Contumacious conduct of the defendant (husband)---Family Court closed the right of the defendant to submit written-statement on his failure to file the same despite availing several opportunities---Held, that in view of the conduct of the petitioner/defendant , the Family Court had rightly struck off his right to file written-statement---In case of a contumacious default of a defendant to file written-statement, Family Court, for the orderly dispensation of justice , was well within its authority to make any order in the nature of one envisaged by O.VIII, R.10 of the Civil Procedure Code, 1908---Petitioner not only failed to file written-statement in spite of getting so many opportunities but he also did not comply with the order of the Family Court regarding payment of costs which was imposed while setting aside the ex-parte proceedings ---No case for interference in the constitutional jurisdiction of the High Court was made out---Constitutional petition was dismissed in limine , in circumstances.

Kh. Muhammad Ahmad Qasim v. Mst. Kaneez Fatima and another 2006 MLD 1128; Fakhar Abbas v. Additional District Judge Tandlianwala, District Faisalabad and 3 others 2017 CLC Note 22 and Khalil-ur-Rehman Bhutta v. Razia and another 1984 CLC 890 ref.

2021 M L D 1912

[Lahore]

Before Aalia Neelum, J

RASHEED AHMAD and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.25693-B of 2021, decided on 8th September, 2021.

Criminal Procedure Code (V of 1898)---

----Ss.497(2) & 498---Penal Code (XLV of 1860), Ss.324, 337-F(i), 337-F(iii), 440, 148 & 149---Murderous assault---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Case of two versions---Admittedly, present case was one of two versions, one brought by the complainant on the record through the FIR and the second was brought on the record by the accused persons through their defence, which was not investigated by the investigating officer---However, the version of accused persons was supported by the Medico Legal Certificate, so, it was (yet) to be determined by the Trial Court as to which version was the correct one---False implication of the accused persons could not be ruled out---Case of accused persons was one of further inquiry, and sending them behind bars would not serve any useful purpose for the prosecution---Ad-interim pre-arrest bail already granted to the accused persons was confirmed, in circumstances.

Barrister Danyal Ijaz Chadhar for Petitioners.

Muhammad Akhlaq, DPG with Muhammad Rafiq, SI and Akhtar, ASI for the State.

2021 M L D 1937

[Lahore]

Before Safdar Saleem Shahid, J

Mst. SHEEDAN BEGUM and others---Appellants

Versus

MUHAMMAD USMAN KHAN and others---Respondents

R.S.A. No.21 of 2011, heard on 27th May, 2021.

(a) Gift---

----Mutation---Scope---Limitation---Appellants challenged the validity of mutations, gift deeds and tamleek namas executed by their predecessor (owner) on the ground of fraud---Validity---Owner who had transferred the properties through mutations, gift deed and tamleek nama all pertained to the years 1949 and 1976---Said owner had remained alive till the year 1991---Registered documents were challenged by the appellants after decades through institution of suit in the year 2000---Sine qua non for the seeker to stand on its own legs, who could not be benefited for weakness, if any, of the adversary---Owner had not challenged anything in his lifetime---Inheritance opened after death of the owner of the property and not during the life---Mutations were sanctioned during life time of the owner---Appellants, being descendants, had no locus standi to challenge the mutations---Maximum period provided to seek such right was six years as per Art.120 of the Limitation Act, 1908---Courts below were quite justified to non-suit the appellants on valid reasons---Second appeal was dismissed.

Sudhangshu Bimal Biswas v. MD Mustafa Chowdhary 1968 SCMR 213; MD. Anwarullah Mazunmdar v. Tamina Bibi and 5 others 1971 SCMR 94; Muhammad Suleman v. Riasat Ali and another 2002 SCMR 1330; Kala Khan and others v. Rab Nawaz and others 2004 SCMR 517; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Ghulam Abbas and others v. Mohammad Shafi through L.Rs. and others 2016 SCMR 1403 and Nasir Fahimuddin and others v. Charles Philips Mills and others 2017 SCMR 468 ref.

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

----S.3---Dismissal of suit, etc., instituted after period of limitation---Duty of court---Scope---Court, as per the mandate of S.3 of Limitation Act, 1908, is under obligation to scrutinize the plaint, the application and the appeal on the point of limitation regardless of the fact that the said point has been agitated by either party or not.

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

----Preamble---Law of limitation is not merely a formality/technicality, rather said statute furnishes certainty and regularity to the human affairs, matters and dealings.

Messrs Dawood Cotton Mills Ltd. v. Sindh Labour Appellate Tribunal and others 2006 SCMR 630; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Muhammad Hussain and others v. Dr. Zahoor Alum 2010 SCMR 286; Muhammad Islam v. Inspector General of Police Islamabad and others 2011 SCMR 8 and State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 ref.

(d) Administration of justice---

----Law helps the vigilant and not the indolent.

Messrs Dawood Cotton Mills Ltd. v. Sindh Labour Appellate Tribunal and others 2006 SCMR 630; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Muhammad Hussain and others v. Dr. Zahoor Alum 2010 SCMR 286; Muhammad Islam v. Inspector General of Police Islamabad and others 2011 SCMR 8 and State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 ref.

(e) Limitation---

----Delay---Condonation---Scope---Delay of each and every day has to be explained satisfactorily, otherwise the delay cannot and should not be condoned.

Messrs Dawood Cotton Mills Ltd. v. Sindh Labour Appellate Tribunal and others 2006 SCMR 630; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Muhammad Hussain and others v. Dr. Zahoor Alum 2010 SCMR 286; Muhammad Islam v. Inspector General of Police Islamabad and others 2011 SCMR 8 and State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 ref.

Mian Zafar Iqbal Kalanauri for Appellant.

Syed Kaleem Ahmad Khursheed for Respondent.

2021 M L D 1959

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

IQRA EDUCATIONAL SOCIETY and another---Petitioners

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION and others---Respondents

Writ Petition No.1206 of 2021, decided on 2nd June, 2021.

Punjab Government Rules of Business, 2011---

----R.3 & First Sched., Entry No. 16---Constitution of Pakistan, Art.199---Constitutional petition---Allocation of business---Higher Education Department---Board of Intermediate and Secondary Education---Scope---Petitioners were aggrieved of non-affiliation of their schools by the Board of Intermediate and Secondary Education (Board) for the year 2019-2020---Contention of petitioners was that they were discriminated as schools of nearby locality were given affiliation---Contention of Board was that the petitioner had applied for affiliation without fulfilling pre-requisites of Cl. 10, S.3 of the Regulations Calendar Volume 1 of the Board of Intermediate and Secondary Education---Validity---High Court observed that since the matter was with regard to discrimination and non-compliance of regulations was involved which could not be dealt with by the court at this stage because under the Punjab Government Rules of Business, 2011 (Rules), the Board was an autonomous body of the Higher Education Department as per First Schedule of the Rules, therefore, Constitutional petition was disposed of in terms that impugned letter was set aside---Matter was remitted to the Secretary Higher Education Department who was directed to pass a speaking order based on solid reasoning strictly as per law.

Al-Bakio International through Authorised Officer and 5 others v. Federation of Pakistan through Secretary. Ministry of Law and Justice and 8 others PLD 2021 Lah. 1; Fiaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others PLD 2012 SC 224 and in the matter of Miserable Condition of the Schools 2014 SCMR 396 ref.

Muhammad Ilyas Shaikh for Petitioners.

Shaukat Rauf Siddiqui, Additional Advocate General on Court's Call.

2021 M L D 1964

[Lahore]

Before Abid Hussain Chattha, J

ZIA ULLAH and others---Petitioners

Versus

LIAQAT ALI ZIA and others---Respondents

Civil Revision No.2122 of 2010, heard on 28th May, 2021.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and permanent injunction---Cancellation of mutation---Sale of land in joint khata---Scope---Plaintiffs filed suit for declaration and permanent injunction claiming therein that they were owner of certain agricultural land in specific Khasra number/survey number; that they were in possession over specific killa numbers; that the respondent had no right to pose as owner in possession of specific killa numbers and that the mutation entered in the revenue record whereby respondent had purchased the property ought to be cancelled---Respondent, in his application under O. VII, R.11, C.P.C., claimed that the respective ownership and possession of petitioners and the respondent in joint khata was admittedly distinct---Courts below concurrently dismissed the suit---Contention of petitioners was that the relief of partition was also sought in the plaint, as such, the suit could not have been dismissed---Validity---Body of the plaint did not say anything about seeking partition and the basic ingredients of the suit for partition were conspicuously missing---Respective properties of the petitioners and the respondent were separate and distinct in terms of their ownership and possession in joint holding along with other co-sharers subject to partition in accordance with law---Courts below had rightly concluded that there was no dispute between the petitioners and the respondent that required adjudication in a regular trial---Revision petition was dismissed.

Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9; Muhammad Sharif and 3 others v. Ghulam Muhammad and another 1995 SCMR 514; Amir Shah v. Ziarat Gul 1998 SCMR 593; Fazal Din v. Mst. Umar Bibi and another 1994 MLD 550; Chaudhary Ghulam Abbas v. Barkat Ali and another 1999 YLR 2190; Mst. Zakia Begum v. Nadir Khan and others 2011 YLR 1397 and Wahid Zaman and others v. Misal Khan and others 2013 YLR 2732 ref.

Mst. Iqbal Begum v. Farooq Inayat and others PLD 1993 Lah. 183 rel.

Sheikh Naveed Shahryar for Petitioners.

2021 M L D 1974

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

AMMER BAKHSH through L.Rs.---Petitioner

Versus

MUHAMMAD ZUBAIR through Legal Heirs and others---Respondents

Civil Revision No.887 of 2015, decided on 11th February, 2021.

Civil Procedure Code (V of 1908)---

----S.144---Specific Relief Act (I of 1877), S.8---Restitution, principle of ---Trial Court allowed the application under S.144, C.P.C, moved by the respondents with direction to recover possession of the property from the petitioner and hand over the same to the respondents, which order was maintained by the Appellate Court---Petitioner contended that the possession of the property was throughout held by him (before filing of suit) and the possession was not as a consequence of decree passed in his favour, so respondents were required to file a regular suit for possession---Held, that in order to exercise jurisdiction under S.144, C.P.C, and allow benefit of restitution, it was required to be determined, in the present case, whether as a consequence of decree passed in favour of the petitioner he had obtained possession of suit property and on reversal of the said decree, the possession was liable to be restored on the principle of restitution to previous position or, that the petitioner was in possession of the property even prior to filing of suit as claimed by him and not as a consequence of decree passed in his favour---Such aspect had not been determined by both the Courts below and therefore, the impugned order and judgment having failed to determine the real question-in-issue were not sustainable---High Court set-aside impugned orders and judgments and remanded the matter to the Trial Court to decide the application under S.144, C.P.C, filed by the respondents afresh on its own merit---Civil revision was allowed, in circumstances.

Malik Muhammad Tariq Rajwana for Petitioner.

2021 M L D 2011

[Lahore]

Before Ali Zia Bajwa, J

MUHAMMAD TARIQ---Appellant

Versus

FAZAL ABBAS and 7 others---Respondents

Criminal Appeal No.1054 of 2011, heard on 31st May, 2021.

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

----Ss.452, 337-A(i), 148 & 149---House-trespass after preparation for hurt, shajjah-i-mudihah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused persons trespassed the house of sister of complainant and caused injury to complainant---Application under S. 249-A, Cr.P.C., was filed, which was accepted without issuing notice to the complainant, while relying upon the statements of the complainant at bail and remand stage---Scope---If statements of complainant were not made by complainant before the court where prosecution was pending, Trial Court was not justified to give any credence to the statements of complainant given at bail and remand stage, for offence under S.337-A(i), P.P.C., enlisted under S. 345(2), Cr.P.C., and that too, without issuing any notice to the complainant during trial because Trial Court had no occasion and chance to evaluate the credibility, validity, genuineness or being volunteer of alleged compromise entered into between the parties at bail and remand stage---Fact of offence under S.452, P.P.C., being non-compoundable had also escaped the notice of Trial Court---Compromise could only be effected qua the offences which were made compoundable by Sched. II of Cr.P.C.---Offence under S.452, P.P.C., was not made compoundable, even a valid compromise effected between the parties to extent of allied compoundable offence, could not be made basis to acquit the accused from such non-compoundable offence---Although such compromise could be considered for the purpose of quantum of sentence---Order of Trial Court acquitting the respondents on the basis of statements made at bail and remand stage, considering it a valid compromise, was not legally justified, however, it was unequivocally required by S.345, Cr.P.C., that such a compromise could only be effected with the permission of court, before which any prosecution for such offence was pending---During bail and remand stage, prosecution of the case was not pending before the Judicial Magistrate when such statements were recorded, hence such statements could not assume status of a valid compromise for offences enlisted in subsection (2) of S.345, Cr.P.C.---Trial Court also fell into error to treat the offence S.452, P.P.C., as compoundable---Circumstances established that judgment of acquittal of respondents passed by the Trial Court being patently illegal, and perverse, was not sustainable in the eye of law---Appeal was allowed by setting aside the judgment of acquittal and matter was remanded to the Trial Court to proceed further with the trial court from the point of distribution of copies to the respondents and to conclude the trial in accordance with the law.

Tariq Mehmood's case PLD 2016 SC 347; Muhammad Akram's case 2005 SCMR 1342; Aijaz Ali and 3 others v. The STate and another 2001 YLR 1448; Manzoor Ahmad's case PLD 2012 Sindh 35; Muhammad Rawab's case 2004 SCMR 1170; Ghulam Farid alias Farida's case PLD 2006 SC 53 and Muhammad Akhtar alias Hussain's case PLD 2007 SC 447 rel.

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

----S.417---Appeal against acquittal---Interference---Scope---Ordinarily, appellate court did not disturb the order of acquittal but in cases where such order was wholly artificial, shocking, ridiculous and perverse, the reasons thereof were also artificial and ridiculous, against the record or law, court could reverse the findings of acquittal.

Jehangir's case 2010 SCMR 494; Ghulam Sikandar's case PLD 1985 SC 11 and Anwar Saif Ullah Khan's case PLD 2016 SC 276 rel.

Farooq Raja for Appellant.

Ch. Arshad Iqbal Bhullar for Respondents.

Hafiz Asghar Ali, Deputy Prosecutor General.

2021 M L D 2032

[Lahore (Multan Bench)]

Before Safdar Saleem Shahid, J

MUHAMMAD WAQAS and 4 others---Petitioners

Versus

GOVERNMENT OF PUNJAB through Secretary Education, Punjab Lahore and 4 others---Respondent

Writ Petition No.10572 of 2021, heard on 9th July, 2021.

Educational institution---

----Scope---Case of petitioners was that they had already deposited the admission fee being regular students with administration of the College within due date and the administration was responsible for clearance of the petitioners for the upcoming examination schedule but their roll number slips were not issued by the College Administration and the Board, rather, the College had demanded the petitioners to deposit fees at the rate of Rs. 50000 as late admission fee---Validity---Documents attached with the petitions revealed that the petitioners were regular students and it was duty of the College Administration to forward the admission forms along with fees to the Board and there was no fault on the part of the students for not depositing the requisite examination fee---If the official of the College Administration had not deposited the fee of the candidates in the office of Board within due date, the students were not liable for act/omission done by the College Administration, rather, it was a matter between the College Administration and the Board---Constitutional petitions were allowed and the Board was directed to issue roll number slips to the petitioners without imposing any fine or penalty.

Ch. Muhammad Ishtiaq Advocate v. Cantonment Executive Officer, Chunian District Kasur and another PLD 2009 Lah. 240 ref.

Qazi Muhammad Waseem Abbas for Petitioner.

Muhammad Ayub Buzdar, Assistant Advocate-General for Respondent.

Allah Bakhsh Khan Kulachi, Advocate/Legal Adviser for Board of Intermediate and Secondary Education D.G. Khan.

2021 M L D 2046

[Lahore (Multan Bench)]

Before Asim Hafeez, J

Mst. HAMEEDA BIBI and 3 others---Petitioners

Versus

KHAN MUHAMMAD alias KHAN AHMAD and 3 others---Respondents

Civil Revision No.108-D of 1989, decided on 31st December, 2020.

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

----S.8---Suit for possession ---Suit was filed without seeking declaration qua entitlement in the suit-property---Maintainability---Record revealed that the claim of tenancy of (part of) property-in-question of predecessor-in-interest of the petitioners/plaintiffs was dismissed about forty years ago for want of proving the relationship of landlord and tenant between the parties; and Rent Controller observed that it could not determine the question of title and legitimacy of the documents, while respondent (alleged tenant in said eviction petition) also claimed right in the property-in-question being purchased by predecessor of the petitioners/plaintiffs---Notwithstanding said facts/background, petitioners filed a suit for possession simplicitor, without claiming declaration qua their entitlement or alleged legal right in the property , being the estate of their predecessor, when their entitlement regarding legal title in the property was challenged/disputed---Suit of possession filed by the petitioners was not maintainable, in circumstances---Appellate Court had rightly reversed the decree and judgment passed by the Trial Court in the favour of petitioner---Revision petition was dismissed, in circumstances.

Sultan Mahmood Shah through L.Rs v. Muhammad Din and 2 others 2005 SCMR 1872 and Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others 2017 SCMR 172 ref.

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

----Art. 64---Opinion of relationship when relevant---Petitioners / plaintiffs, on the basis of recorded inheritance mutations, sought their respective share in suit-property (estate of deceased), alleged to be their predecessor being distant kindered---Suit of the petitioners was dismissed and suit-property was declared as ownerless/escheated property by the Court---Held, that mutations-in-question were not proved through producing revenue record and official witnesses qua its execution/recording---Petitioners were required to prove factum of claimed relationship in accordance of Art. 64 of the Qanun-e-Shahadat, 1984 but they utterly failed---No authentic / official pedigree table was produced in the evidence; one table was referred to in the plaint, which was admittedly drawn by one of the petitioners and the same would not be sufficient to establish factum of their entitlement and relationship---Mere mutation of inheritance was not sufficient to establish ownership---Parties claiming competing interests in the property kept their fight amongst themselves and strangely none of them ventured to produce official/revenue witnesses except one witness from Settlement Department---Said evidence could not be believed to form an opinion qua the relationship of the petitioners with the deceased, as no opinion/evidence was expressed by conduct in said regard by any member of the family or person having special means of knowledge as envisaged under Art. 64 of Qanun-e-Shahadat which was lacking---Mere random statements by witnesses were not sufficient to prove relationship---Even the witnesses were not asked about their source of information about relationship, and proof of relationship was left to chance/cross-examination---Appellate Court had rightly reversed the decree and judgment passed by the Trial Court in the favour of petitioners---No illegality was found in the impugned decree and judgment passed by the Appellate Court dismissing the suit of possession filed by the petitioners and declaring the suit-property as ownerless/escheated one---Appellate Court had rightly reserved the decree and judgment passed by the Trial Court in the favour of petitioners---Revision petition was dismissed, in circumstances.

Jaleb Khan and 9 others v. Mst. Subhani and another 1999 SCMR 2502 and Ghulam Muhammad and another v. Allah Yar and others PLD 1965 (W.P) Lah. 482 ref.

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

----Arts. 129(g) & 64---Competent witness---Scope---Opinion of relationship when relevant---Petitioners/plaintiffs ,on the basis of recorded inheritance mutations ,sought their respective share in suit-property (estate of deceased), alleged to be their predecessor being distant kindered---Suit of the petitioners was dismissed and suit-property was declared as ownerless/escheated property by the Court---One female as one of legal heirs of the deceased, was alive---Said female witness, being pertinent and best witness, was not produced as a witness, leading to adverse inference in terms of Art.129(g) of the Qanun-e-Shahadat, 1984---Testimony of the other witnesses, claiming to be distant kindered, was inadequate to prove factum of relationship with the deceased---Mere reliance on inheritance mutations would neither establish ownership nor evidence of conduct to prove relationship---Petitioners could not be permitted to resort to pick and choose for relying merely on that part of the evidence favouring them and overlooking detrimental evidence, such piecemeal appraisal was not permissible---Revision petition was dismissed, in circumstances.

(d) Constitution of Pakistan---

----Art.172---Ownerless/escheated property---Ownerless/escheated property vests in the Provincial Government in terms of Art. 172 of the Constitution.

Malik Waqar Haider Awan for Petitioner.

None Present for Respondent.

2021 M L D 2058

[Lahore]

Before Malik Shahzad Ahmad Khan, J

GHAFFAR alias KALI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.615-J of 2014, heard on 9th June, 2021.

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

----Ss. 376 & 496-A---Rape, enticing or taking away or detaining with criminal intent a woman---Appreciation of evidence---Benefit of doubt---Accused were charged for snatching cash and gold ornaments from the sisters of the complainant and thereafter abducted one of his sisters/victim---Incident took place due to matrimonial dispute---Record showed that accused was not named in the FIR and he along with three additional accused was implicated in the case on the basis of statement of the alleged abductee (victim), recorded under S.164, Cr.P.C.---In her statement, the victim stated that after her abduction by the accused etc. she was taken to a house where accused and three co-accused committed rape with her, turn by turn---Three other accused who were tried in the case had been acquitted by the Trial Court---Remaining accused persons mentioned in the FIR were not tried in the case because they were declared proclaimed offenders---Neither any motorcycle nor any car or weapon of offence had been recovered from the possession of the accused---Likewise, neither any gold ornament nor any cash amount or mobile phone set through which the complainant party was allegedly threatened by the co-accused had been recovered from the possession of the accused---Appeal was allowed in circumstances and case was remanded with the direction that Trial Court would provide opportunity to the accused to hire the services of a private counsel of his own choice or to appoint a counsel on State expenses.

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

----Ss.376 & 496-A---Rape, enticing or taking away or detaining with criminal intent a woman---Appreciation of evidence---Medical evidence---Scope---Accused were charged for snatching cash and gold ornaments from the sisters of the complainant and thereafter abducted one of his sisters/victim---No DNA test report had been brought on the record by the prosecution though in the Medico Legal Report of victim it was categorically mentioned that vaginal swabs taken in the case had been sent to the office of Forensic Science Agency for DNA test---In-spite of all the said facts, the accused had been convicted and sentenced by the Trial Court---Victim was not cross-examined by the defence and right of the accused to cross-examine the said victim and other prosecution witnesses was closed---Appeal was allowed, in circumstances and the case was remanded with the direction that Trial Court would provide opportunity to the accused to hire the services of a private counsel of his own choice or to appoint a counsel on State expenses.

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

----Ss. 376 & 496-A---Rape, enticing or taking away or detaining with criminal intent a woman---Appreciation of evidence---Closing of right of cross-examination---Effect---Accused were charged for snatching cash and gold ornaments from the sisters of the complainant and thereafter abducted one of his sisters/victim---Perusal of the record showed that an advocate submitted his Power of Attorney on behalf of accused and acquitted co-accused---Perusal of order of the Trial Court further showed that said counsel made a statement before the court on behalf of co-accused persons that he did not want to cross-examine the prosecution witnesses---Further mentioned in the said order of the Trial Court that counsel for accused and co-accused, since acquitted, did not appear before the court on the said date due to the strike of the Lawyers, meaning thereby that there was some misunderstanding about the appointment of the counsel in the case on behalf of the accused because Power of Attorney of said Advocate showed that he was also appointed as counsel on behalf of the accused---Cross-examination on the prosecution witnesses on behalf of accused and co-accused, since acquitted, was reserved on the said date by the Trial Court---Orders of Trial Court showed that right of cross-examination of the accused on the prosecution witnesses was closed by the Trial Court on the ground that accused had not yet appointed his counsel in the case---Evident from the perusal of record that trial of the accused had been conducted and concluded in blatant and flagrant violation of rule on the subject---High Court observed that if the accused was unable to hire the services of a counsel in the case which was a Sessions trial or counsel appointed by him refused to represent him or to cross-examine the prosecution witnesses on his behalf, then it was duty of the court to provide him a counsel at the State expense---Appeal was allowed, in circumstances and the case was remanded with the direction that Trial Court would provide opportunity to the accused to hire the services of a private counsel of his own choice or to appoint a counsel on State expenses.

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

----Art.133---Cross-examination---Scope---Court could not come to just and fair decision of the case unless the credibility of a witness was tested on the touchstone of cross-examination---Cross-examination of the prosecution witnesses was very valuable right of the accused.

Ghulam Rasool Shah and another v. The State 2011 SCMR 735; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and Abdul Ghafoor v. The State 2011 SCMR 23 ref.

Ghulam Rasool Shah and another v. The State 2011 SCMR 735; Abdul Ghafoor v. The State 2011 SCMR 23 and Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 rel.

Faheem Altaf Raja for Appellant.

Ch. Muhammad Ishaq, Additional Prosecutor General for the State.

2021 M L D 2077

[Lahore]

Before Ali Zia Bajwa, J

UMER DARAZ---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

T.A. No.48296 of 2021, heard on 6th August, 2021.

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

----Ss. 22-A, 6, & 526---Powers of Justice of Peace---High Court may order transfer of case or itself try it---Scope---Appointment of Justice of Peace is governed by S.22, Cr.P.C., which provides that the Provincial Government may, by notification in Official Gazette, appoint for such period as may be specified in the notification, and subject to such rules as may be made by it, any person who is a citizen of Pakistan and as to whose integrity and suitability it is satisfied to be a Justice of the Peace for a local area to be specified in the notification---Section 25, Cr.P.C., provides that by virtue of their respective offices, the Sessions Judges and on nomination by them Additional Sessions Judges are Justices of Peace within and for the whole of the district of the province in which they are serving---All the Sessions Judges and on their nomination, Additional Sessions Judges are ex-officio Justices of Peace and their powers are provided under subsection (6) of S.22-A, Cr.P.C.---Classes of criminal courts are provided in S. 6 of Cr.P.C---Section 6, Cr.P.C., clearly envisages that under said section, besides High Court, there are two classes of Criminal Courts i.e. Courts of Sessions and Courts of Magistrates and office of Justice of Peace nowhere falls within the ambit of definition of a "criminal court"---Classes of criminal courts are provided in Chapter-A of Cr.P.C., while office of Justice of Peace is established under Chapter-E of Cr.P.C., and this placement of Justice of Peace in another chapter itself suggests that legislature has not intended to include office of Justice of Peace in the classes of criminal courts---Justice of Peace while performing its functions under S. 22-A(6), Cr.P.C., is not a criminal court and this pre-condition to exercise the jurisdiction under S. 526, Cr.P.C., is not fulfilled---Section 526, Cr.P.C., only deals with the transfer of a proceedings before a criminal court, hence provisions of S.526, Cr.P.C., cannot be adhered to for transferring a proceedings under S.22-A(6), Cr.P.C., pending before a Justice of Peace.

Sarafraz Saleem's Case PLD 2012 SC 232; Mian Muhammad Nawaz Sharif's Case PLD 2009 SC 644; Imtiaz Ahmed Mahmood's case PLD 2003 SC 40 and Mst. Zahida Sattar's Case PLD 2002 SC 408 ref.

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

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

----Ss. 22-A & 526---Constitution of Pakistan, Art. 199---Powers of Justice of Peace---High Court may transfer case or itself try the same---Constitutional jurisdiction---Ubi jus ibi remedium---Scope---Question before High Court was whether an application filed under S.22-A(6), Cr.P.C. could not be transferred under S. 526, Cr.P.C., then whether an aggrieved person was left remediless or any remedy was available---Held; answer was in negative---Where one's right was invaded or infringed, the law provided a remedy to protect it---Under Arts. 4 & 10-A of the Constitution every person had a right to be dealt in accordance with law and had a fair trial---Person who was aggrieved by some unwarranted act, always had a remedy available under Art.199 of the Constitution---Maxim ubi jus ibi remedium had always been considered as one of the fundamental principles of law and natural justice---When there was no other remedy available to an aggrieved person, he could approach High Court under Art.199 of the Constitution.

(c) Constitution of Pakistan---

----Art.175---Establishment and jurisdiction of Courts---Scope---Term "Court" provided in Art. 175 of the Constitution includes Supreme Court of Pakistan, High Courts of the Provinces, a High Court for the Islamabad Capital Territory and such other courts as may be established by law---Constitution makers in their wisdom considered it necessary to expressly authorize the legislature by Art. 175 of the Constitution to set up the courts as per the requirement---All courts are the creatures of the Constitution or the law and derive their powers and jurisdiction from the Constitution or any law, under which they are constituted.

(d) Maxim---

----Ubi jus ibi remedium---Scope---Where one's right is invaded or infringed, the law provides a remedy to protect it.

Marbury v. Madison 5 U.S. 137 rel.

Abid Hussain Khichi for Petitioner.

Hafiz Asghar Ali and Ms. Noshe Malik, Deputy Prosecutors General for the State.

Mian Ali Haider, amius curiae.

2021 M L D 2088

[Lahore]

Before Muhammad Qasim Khan, CJ

SAJJID RASUL---Petitioner

Versus

ARSALAN ZAIN-UL-ABIDIN and others---Respondents

Criminal Revision No.201521 of 2018, decided on 20th April, 2021.

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

----S.7---Age, determination of---Production of evidence---Scope---Complainant assailed the validity of order passed by Sessions Judge whereby he had declared the accused persons to be Juvenile in terms of S.7 of the Juvenile Justice System Ordinance, 2000---Determination of child/adult required recording of evidence in view of Qanun-e-Shahadat, 1984---Record available on file reflected that the Trial Court in the process of inquiry had summoned relevant record from the concerned school, Union Council/Municipal Committee and NADRA (National Database and Registration Authority)---Complainant had not alleged that the documents produced by accused and corroborated by the record were forged or those were managed/maneuvered---Record unveiled that accused persons were juvenile at the time of occurrence---Revision petition was dismissed.

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

----S.7---Age, determination of---Production of documentary evidence---Ossification test---Scope---Whenever there is sufficient corroborative documentary evidence regarding age of the accused, the report of ossification test being merely an expert opinion cannot over-ride the documentary proof, particularly when the same was incorporated much prior to the occurrence.

Intizar Hussain v. Hamza Ameer and others 2017 SCMR 633 ref.

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

----S.7---Age, determination of---Birth certificate---Scope---Birth certificate, which was got incorporated in the relevant record promptly, shall be domineering over any other piece of evidence.

Nazeer alias Wazeer v. The State PLD 2007 SC 202 ref.

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

----S.7---Age, determination of---Scope---Whenever two views relating to the age of accused are possible, the view in favour of the accused is normally accepted. [p. 2092] F

Ijaz Hussain v. The State 2002 SCMR 1455 ref.

A.G. Tariq Chaudhry for Petitioner.

Ch. Sarfraz Ahmed Khattana, Deputy Prosecutor General along with Nazim, S.I.

2021 M L D 2095

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Ali Zia Bajwa, JJ

FEDERATION OF PAKISTAN---Petitioner

Versus

Ex. NAIK MUMTAZ HUSSAIN---Respondent

Intra Court Appeal No.04 of 2021 in W.P. No.2775 of 2011, decided on 14th June, 2021.

(a) Pakistan Army Act (XXXIX of 1952)----

----Ss.127, 128 & 133B---Pakistan Army Act Rules, 1954, R.116---Findings and award of sentence by Summary Court Martial---Transmission of proceedings of a Summary Court Martial---Intra Court Appeal---Maintainable---Appellant assailed judgment passed by Single Judge of High Court whereby orders of conviction of respondent passed by Summary Court Martial and the Court of Appeal under the Pakistan Army Act, 1952 were set aside and the matter was remanded to Trial Court with direction to first fulfill the mandatory requirements as envisaged under the Act---Validity---Against the order of conviction, two remedies were available, to wit, remedy of review under S. 128 of the Pakistan Army Act, 1952 read with R. 116 of the Pakistan Army Act Rules, 1954 and second under S. 133B(1) of the Pakistan Army Act, 1952 to prefer an appeal before Court of Appeal---In presence of such remedies, against the original order of conviction and sentence passed against the respondent, intra court appeal of appellant was not maintainable against the impugned order of Single Judge---Appeal was dismissed.

Fayaz Kahan v. Government of Pakistan Through Secretary Aviation Cabinet Secretariat, Aviation Division, Islamabad and another 2020 SCMR 432 ref.

(b) Administration of justice---

----Court was to first attend the question of maintainability of a lis and if Court reaches to the conclusion that such lis is not maintainable, Court was not to comment upon the merits of the case.

Khalid Mehmood's case 1999 SCMR 1881 ref.

(c) Law Reforms Ordinance (XII of 1972)---

----S. 3---Constitution of Pakistan, Art. 199---Appeal to High Court in certain cases---Intra court appeal---Maintainability---Habeas corpus---Scope---Section 3 of Law Reforms Ordinance, 1972 is self-explanatory and provides that a right to file intra court appeal is not an absolute and unqualified right rather same is subject to certain limitations and conditions provided therein---Under subsection (1) of S. 3, intra court appeal is maintainable against a decree passed or final order made, by single Judge of High Court only if same is passed in exercise of its original civil jurisdiction---Similarly, although intra court appeal is maintainable against order passed by Single Judge under clause (1) of Art. 199 of the Constitution but same is not maintainable if order is made under sub-paragraph (i) of paragraph (b) of that clause.

(d) Law Reforms Ordinance (XII of 1972)---

----S.3---Appeal to High Court in certain cases---Intra court appeal---Maintainability---Scope---Subsection (2) of S.3 of Law Reforms Ordinance, 1972 in most unequivocal terms, lays down that remedy of intra court appeal is not available against an order of Single Judge having arisen out of proceedings in which applicable law provides remedy of at least one appeal, revision or review to any court, tribunal or authority against the original order.

SME Bank Limited through President Islamabad and others v. Izhar Ul Haq 2019 SCMR 939 rel.

(e) Law Reforms Ordinance (XII of 1972)---

----S.3---Appeal to High Court in certain cases---Intra court appeal---Expression "original order"---Scope---Term "original order" used in proviso to S.3(2) of Law Reforms Ordinance, 1972 means an order passed by the original/first fora and not the order passed by Single Judge of High Court in constitutional petition---Order passed by Single Judge in constitutional petition cannot be termed as an "original order" as required by S.3 of Law Reforms Ordinance, 1972 or an order passed in original civil jurisdiction of High Court because such order is passed in constitutional jurisdiction conferred by Art.199 of the Constitution.

Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman/M.D., Karachi PLD 2001 SC 182 and Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 rel.

(f) Law Reforms Ordinance (XII of 1972)---

----S.3---Appeal to High Court in certain cases---Intra court appeal---Maintainability---Scope---Availing of remedy of appeal, revision or review is not a sine qua non to question the maintainability of intra court appeal and it is sufficient if applicable law in the matter provides such remedy---Not relevant whether such remedy is availed by the aggrieved person or not, there may be cases where despite the availability of appeal, revision or review against the original order, such remedy was not actually availed by the aggrieved party.

Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman/M.D., Karachi PLD 2001 SC 182 rel.

(g) Pakistan Army Act (XXXIX of 1952)---

----Ss. 119, 120, 121, 122, 123, 124, 125, 126, 131 & 133B---Confirmation and revision of findings and sentences---Scope---Compact scheme pertaining to remedies against the decisions of Courts Martial has been provided under the Pakistan Army Act, 1952---Section 119 Pakistan Army Act, 1952 provides that finding or sentence of a General, District or Field General Court Martial shall be valid only when same is confirmed as provided by said Act i.e. as provided under S. 120 to S. 125 of the aid Act---Under S.126, of the Act any finding or sentence of a Court Martial which requires confirmation may be once revised---Under S. 131, any person who considers himself aggrieved by the finding or sentence of a General, Field General or District Court Martial may submit a petition, before confirmation of such finding or sentence, to the officer empowered to confirm it and, after confirmation, to the Federal Government, or the Chief of the Army Staff or to any prescribed officer who is superior in command to the one who confirmed such finding or sentence---Section 133B(1) provides remedy of appeal to a person whom a Court Martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service to a Court of Appeal.

(h) Pakistan Army Act (XXXIX of 1952)---

----S. 128---Pakistan Army Act Rules, 1954, R. 116---Transmission of proceedings of a Summary Court Martial---Scope---Against every finding of Summary Court Martial, remedy of review is available as S.128 of the Pakistan Army Act, 1952 provides that the proceedings of every Summary Court Martial, without delay, shall be forwarded to an officer having power to convene a District Court Martial, and such officer, or any higher authority, may, for reasons based on the merits of the case but not on any merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the Court Martial might have passed---Rule 116 of the Pakistan Army Act Rules, 1954 provides that the proceedings of a Summary Court Martial shall, immediately on promulgation, be forwarded, through Judge-Advocate General, Pakistan Army, to the officer authorized to deal with them under S.128, who after review shall return them to the corps of accused for preservation in accordance with sub-Rule (2) of R.129 of Pakistan Army Act Rules, 1954.

2021 M L D 2110

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal and Ahmad Nadeem Arshad, JJ

MUHAMMAD AYUB and another---Petitioners

Versus

The MEMBER (JUDICIAL-III), BOR, PUNJAB,LAHORE and others---Respondent

Review Application No.04 of 2017 in Writ Petition No.1674 of 2010, heard on 14th June, 2021.

Civil Procedure Code (V of 1908)---

----S.114---Constitution of Pakistan, Art.199---Constitutional petition---Review of judgment---Principle---Land allotted to respondents was cancelled by authorities but High Court in exercise of Constitutional jurisdiction set aside orders of cancellation and restored the allotment---Petitioners sought review of judgment on the plea that several factual and legal points escaped notice of the Court---Validity---Power of review could be exercised to correct errors---Main aim of power to review was to prevent injustice from being done by Court---Requirement for invoking review was that an error or mistake which was manifestly floating on face of record, which was patent and if allowed to intact would perpetuate illegality and gross injustice--- Authorities allotted land to respondents without considering relevant law which was available in form of notification and without consulting revenue record---Judgment under review was passed merely on non-verified report of concerned Patwari and the same was non-speaking order---When basic order was set aside as declared null and void, all superstructure was also to fall down automatically---High Court reviewed its earlier judgment and set aside allotment order issued in favour of respondents---Review was allowed, in circumstances.

Jan Muhammad v. the member (colony) and others 2017 SCMR 93; Jhabba Lal v. Shib Charan and others AIR 1917 All. 160; Ghulam Sarwar and another v. The State 1979 SCMR 43; Mohtarama Benazir Bhutto v. President of Pakistan and 2 others PLD 2000 SC 77; Pakistan Lawyers Forum and others v. Federation of Pakistan and others PLD 2004 Lah. 145; Zulfikar Ali Bhutto v. The State PLD 1979 SC 741; Mst. Lal Khatoon and 8 others v. Mst. Sahati and 2 others PLD 2005 Kar. 327; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Mst. Amtul Kabir and others v. Safia Khatoon and others 1990 CLC 1522; Kundal Khan v. Agha Jan PLD 1990 Pesh. 21; Lord Russell of Killowen, Sir Lancelor Sanderson and Sir Shadi Lal Bisheshwar Pratap Sahi and another v. Parath Nath and another AIR 1934 Privy Council 213 and Amir Ahmad Khan v. Rehmat Ullah and another 1989 MLD 449 ref.

Hussain Bakhsh. v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Capital Development Authority through Chairman v. Raja Muhammad Zaman Khan and another PLD 2007 SC 121; Mehmood Hassan Lark and others v. Muslim Commercial Bank Limited and others 2010 SCMR 1036; Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and Pakistan through The Secretary, Ministry of Finance, Government of Pakistan Rawalpindi PLD 1962 SC 335; Faqir Muhammad Khan v. Mir Akbar Shah PLD 1973 SC 110; Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through Legal Heirs PLD 2005 SC 311; Waqas Amjad and others v. Additional Sessions Judge and others PLD 2019 Lah. 111 and PESCO, WAPDA House through Chief Executive v. Ishfaq Khan and others 2021 SCMR 637 rel.

Ch. Abdul Ghani and Miss Farzana Yasmeen for Petitioners.

Rana Luqman Ali for Respondents Nos.7(a) to 7(f).

Malik Naseer Ahmad Theheem and Shafqat Raza Thetheem for Respondents Nos.5 to 7.

Malik Altaf Hussain Rana, A.A.G. for the State.

2021 M L D 2129

[Lahore]

Before Anwaar Hussain, J

PROVINCE OF PUNJAB through District Officer (Revenue)/District Collector, Khushab and 2 others---Petitioner

Versus

ATTA RASOOL and another---Respondents

Civil Revision No.195 of 2013, heard on 7th June, 2021.

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

----S.115---Revision---Transfer of State land---Absence of allotment letter/renewal letter of lease or proof of payment of lagan/rent---Allotment was governed by the notifications issued in furtherance of Grow More Food Campaign---Trial court dismissed the suit filed by respondent against the revenue authorities---District Court allowed appeal in favour of the respondent---Validity---Held, that maximum period of lease was three years---Neither allotment letter was produced before the Trial Court, nor any extension in the lease after expiry of three years---Counsel for the respondent was reluctant to present any allotment letter/renewal letter or proof of payment of lagan/rent---Respondent failed to establish any lawful authority for possession of State land---Revision petition was allowed accordingly.

Fazal ur Rehman and others v. Province of Punjab through District Officer (Revenue) Bhakkar and another 2014 SCMR 1351 rel.

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

----S.172---Colonization of Government Lands (Punjab) Act (V of 1912), S.36---Civil Procedure Code (V of 1908), S. 9---Ousting jurisdiction of Civil Court---Maintainability of suit---Petitioners (revenue authorities) failed to take ground---Scope---Civil court would have jurisdiction to look into the matter even if the jurisdiction of civil court was otherwise ousted under any enactment including the Colonization of Government Lands (Punjab) Act, 1912 as well as the Punjab Land Revenue Act, 1967, when the order and action had been taken in a mala fide and malicious manner, in excess of jurisdiction or without jurisdiction, and the aggrieved person had been left without any remedy---Present case was not maintainable in the Trial Court on this score alone that the orders passed by the revenue authorities were not result of any of the said problems.

Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180; Muhammad Khan and others v. Province of Punjab and others 2007 SCMR 1169; University of the Punjab v. Miss Wajiha Arooj 2008 SCMR 1577; Gul Shah and others v. Hafiz Ghulam Muhammad and others 2009 SCMR 1058 and Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 rel.

(c) Administrative law---

----State land to be considered as trust---Duty of Executive---Vigilance at the time of allotment and currency thereof---State land was not a bounty which could be given away to any one rather it was to be considered as trust---Disposal/transfer of the state land in accordance with law, in a fair and transparent manner was the higher public law consideration; it was imperative not only for the executive authorities but the courts of plenary jurisdiction to ensure that while adjudicating the matter pertaining to the state land, higher public law consideration qua state land must be at the forefront.

Member Board of Revenue/Chief Settlement Commissioner, Punjab v. Abdul Majeed and another PLD 2015 SC 166 ref.

Asif Afzal Bhatti, Additional Advocate General, Punjab for Petitioners.

Mian Khurram Sadiq for Respondents.

2021 M L D 21

[Peshawar]

Before Syed Muhammad Attique Shah, J

MUHAMMAD AYAZ GUL---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Quashment Petition No. 7-P of 2020, decided on 4th May, 2020.

Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----S. 9(c)---Constitution of Pakistan, Art. 10-A---Possession of narcotics---Right to fair trial---De-sealing of case property---Scope---Question before High Court was whether the 'case property' could be de-sealed during the statement of a marginal witness of recovery memo, particularly when no such request was made at the time when the same was exhibited in the statement of Seizing Officer---Held; case property not only could be de-sealed in presence of the Seizing Officer, but the de-sealing could also be effected when it was so requested by the defence at the time of recording the statement of marginal witness to a recovery memo---Prosecution was under bounden duty to produce the case property before the court in order to prove its case against the accused and when the same was produced, it certainly gave a right to the accused to request for its de-sealing in open court, if he so desired or advised in order to satisfy himself regarding its contents, weight, seals affixed on packets/parcels, etc---Refusal of the de-sealing was also violative of the provisions of Art. 10-A of the Constitution---Impugned order was set aside and the Trial Court was directed to de-seal the case property in presence of marginal witness to the recovery memo and the accused in open court for its examination.

Noor Alam Khan for Petitioner.

Wilayat Khan, A.A.G. for the State.

2021 M L D 31

[Peshawar]

Before Qaiser Rashid Khan, J

ABUBAKAR SADIQUE---Petitioner

Versus

MUKHTIAR ALI and another---Respondents

Bail Petition No. 1902-P of 2020, heard on 10th July, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 377---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), S. 53---Unnatural offence---Sexual abuse---Bail, refusal of---Scope---Accused was alleged to have committed unnatural offence with the minor son of complainant---Delay, as per FIR, had occurred because of the intervention of the elders of locality compelling the complainant for compromise---Medical report showed that the minor son of complainant was subjected to unnatural offence---Non-availability of report of Forensic Laboratory was of little consequence at bail stage---Juvenility by itself did not confer a license upon a person to commit such an offence---Offence was not compoundable, therefore, statement of complainant to have compromised the matter could not be taken into account---Accused was prima facie connected with the commission of offence which was both serious and heinous and also fell within the prohibitory clause of S.497, Cr.P.C.---Petition for grant of bail was dismissed, in circumstances. Shah Nawaz Khan Katlang for Petitioner.

Syed Sikandar Hayat Shah, A.A.G. for Respondents/State.

Complainant in person.

2021 M L D 46

[Peshawar (Bannu Bench)]

Before Ikramullah Khan and Sahibzada Asadullah, JJ

SHAH MEHMOOD---Petitioner

Versus

The STATE---Respondent

Writ Petition No.1305-B of 2019, decided on 15th January, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 9(d), 2(c) & 29---Possession of narcotics---Bail, grant of---Power of seizure and arrest in public places---Authorized officer---Non-availability of report of Forensic Laboratory---Completion of investigation---Further inquiry---Scope---Accused was alleged to have been found in possession of 1015 grams of charas---Five grams of charas was separated for chemical analysis but neither any copy of the application for sending the sample to Forensic Laboratory was available on record nor any report of the Forensic Laboratory was available which could show that the contraband allegedly recovered from the accused was in fact charas---Powers of seizure and arrest in public places under the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 was conferred upon an authorized officer and the question whether the SHO was duly authorized by Regional Police Officer was to be determined at the trial---Investigation was complete inasmuch as challan was drafted and was ready to be put in Court and the accused was not required by the local police for further investigation---Available record had made the case of accused one of further inquiry entitling him to concession of bail---Bail was allowed, in circumstances.

Zahid Sultan v. The State 2019 YLR 2798; Shehzad Khezar Hayat v. The State 2014 YLR 849; Faisal Munir v. The State through Latif Khan ASI Choki Mayar 2013 PCr.LJ 1525 and Faqir Hussain alias Bali v. The State 2014 SCMR 1502 ref.

Shehzad Khezar Hayat v. The State 2014 YLR 849 and Fazal Ellahi v. The State 2004 SCMR 235 rel.

Relative of the Petitioner for Petitioner.

Shahid Hameed Qureshi, Addl. A.G. for the State.

2021 M L D 109

[Peshawar]

Before Ahmad Ali, J

FAHAD KHAN---Petitioner

Versus

Mst. FARUKH TABBASSUM and others---Respondents

Writ Petition No.510-P of 2019, decided on 15th November, 2019.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of maintenance allowance, dower and dowry articles---Plaintiff (wife) had left the house of defendant with her sister and defendant (husband) had not ousted her forcibly---Plaintiff-wife had not levelled the allegation of snatching of dower on behalf of defendant-husband---Wife had not produced her sister in the witness box and she had withheld best evidence available with her---Wife normally keep her gold ornaments in her own custody---Plaintiff remained in the house of defendant for about seven or ten days---Bride normally kept control over her gold ornaments in the early days of marital life---Plaintiff and her witnesses had admitted the payment of dower---Plaintiff was bound to prove that gold ornaments had been snatched on behalf of husband---Defendant had contended that he had paid entire dower to the wife---Plaintiff had failed to prove that partial gold ornaments were in the possession of defendant---Plaintiff could not take benefit from the shortcomings of defendant's case---Defendant had proved the payment of entire dower to the wife---Defendant had divorced the wife who had left his house herself and she was not entitled for full amount of maintenance allowance---Plaintiff was held entitled for maintenance allowance @ Rs.5,000/- per month from the date of desertion till expiry of Iddat period---Dowry articles returned by the Courts below to the wife were general items which ordinarily a bride did bring with her as marriage gift from her parents---Findings of Courts below for return of dowry articles did not suffer from any irregularity or jurisdictional defect---Impugned judgments and decrees passed by the Courts below were modified accordingly---Constitutional petition was allowed in circumstances.

Javed Iqbal Gulbela for Petitioner.

Mst. Arif Ullah for Respondent No.1.

2021 M L D 140

[Peshawar]

Before Rooh-ul-Amin Khan, J

AYUB KHAN and 11 others---Appellants

Versus

The DISTRICT LAND ACQUISITION COLLECTOR, MARDAN and 5 others---Respondents

R.F.A. No.169-P of 2020, decided on 4th May, 2020.

Land Acquisition Act (I of 1894)---

----Ss. 18, 28 & 34---Reference to court---Enhancement of compensation---Scope---Referee Judge enhanced compensation amount from Rs. 2,800/- to Rs. 125,000/- per marla along with 15% compulsory acquisition charges but refused 6% interest on excess amount determined by the Court---Validity---Collector Land Acquisition was bound to deposit excess amount before Referee Court as determined by the said Court---If excess amount was deposited then no interest should be levied on the excess amount but in case of failure of Collector Land Acquisition or beneficiary of acquisition to deposit the excess amount before Referee Court they could not be absolved from payment of interest thereon---Payment of interest under Section 28 of Land Acquisition Act, 1894, was discretionary and Court might pass an order by exercising discretion judiciously---When amount of compensation had not been paid or deposited on or before taking possession of the land then Collector Land Acquisition should pay the amount awarded with simple interest thereon @ 6% per annum from taking possession until it had been paid or deposited---When compensation amount had been enhanced by the Referee Court and same had not been paid or deposited in the Court then 6% interest per annum from the time of taking possession until it was paid or deposited should be paid to the land owners---Enhanced compensation amount in the present case had neither been paid to the land owners nor same had been deposited in the Referee Court---Land owners were entitled for the receipt of 6% interest per annum on the excess compensation amount from the date of taking over possession till same had been either paid or deposited in the Referee Court---Impugned judgment to the extent of declining 6% interest on excess amount of compensation determined by the Referee Court was set aside in circumstances---Appeal was allowed accordingly.

Haji Sardar Ali Khan for Appellants.

Muhammad Sohail Khan, A.A.G. for Respondents.

2021 M L D 154

[Peshawar]

Before Ikramullah Khan, J

GUL REHMAN---Petitioner

Versus

SENIOR MEMBER BOARD OF REVENUE, PESHAWAR and 24 others---Respondents

Writ Petition No. 1939-P of 2015, decided on 15th June, 2020.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss. 135 & 141---Application for partition of landed property---Suit for declaration---Stay of partition proceedings---Requirements---Petitioner filed application before Revenue Officer for dismissal of application for partition of landed property on the ground that he had filed a declaratory suit but same was dismissed---Validity---Parties were co-sharers of suit property and respondent had applied for separation of his recorded share---Application before Revenue Authorities to postpone partition proceedings was not maintainable---Suit of petitioner had already been dismissed---High Court observed that if ownership of the party seeking partition was disputed and Revenue Officer could not decide the dispute being intricate question of right then he should direct the parties to approach the competent Court for resolution of dispute---Mere institution of a suit by any of the parties on their own motion could not restrict the Revenue Officer to proceed in the matter of partition of a joint land---Constitutional petition was dismissed, in circumstances.

Amin-ur-Rehman Yousaf for Petitioner.

Tariq Khan Hoti for Respondents.

2021 M L D 176

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Muhammad Attique Shah, JJ

MUKARAM KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 63-P of 2018, decided on 3rd September, 2020.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 34---Criminal Procedure Code (V of 1898), Ss. 431 & 544-A---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Diyat, payment of---Scope---Accused dying before final adjudication of his appeal---Effect---Prosecution case was that the accused along with absconding accused made firing upon the complainant, due to which two persons died---Previous blood feud between the parties had been advanced as a motive behind the occurrence---Record showed that during pendency of the appeal, the accused-convict died inside the jail---Section 431, Cr.P.C., provided that every appeal under S. 411-A(2) or under S.417, Cr.P.C. shall finally abate on the death of the accused---Though, on conviction of an offender under S.302, P.P.C., the court normally, in addition to corporal punishment, imposed compensation upon the offender/convict to be paid to the legal heirs of the deceased in terms of S.544-A, Cr.P.C., recoverable as arrear of land revenue---However, in terms of S.544-A, Cr.P.C., the compensation was not a sentence under S.302, P.P.C.---Record transpired that word "fine" as used by the Trial Court in the impugned judgment was actually compensation under S.544-A, Cr.P.C., in addition to imprisonment for life---Compensation under S.544-A, Cr.P.C. was neither a sentence under S.53, P.P.C. nor under S.302, P.P.C.---Appeal of the accused on his demise would stand abated to the extent of corporal punishment as well as compensation---Word "fine" used by the Trial Court, being against the mandate along with compensation being abated was dismissed---Since neither the complainant nor the witness had sustained any injury, thus, the Trial Court had errored by convicting the accused under S.324, P.P.C. and burdening him with an amount of fine---Appeal to the extent of sentence of fine under S.324, P.P.C. was allowed by setting aside the fine imposed upon the deceased convict.

Azmat Ullah v. The State 2014 SCMR 1178 and Brig. (Rtd.) F.B. Ali and another v. The State PLD 1975 SC 506 rel.

Sohail Akhtar and Mian Arshad Jan for Appellant.

Mujahid Ali Khan, A.A.G. for the State.

Complainant in person.

2021 M L D 202

[Peshawar (D.I. Khan Bench)]

Before Sahibzada Asadullah, J

MUHAMMAD ASHRAF and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous Bail Petition No. 167-D of 2020, decided on 29th May, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, refusal of---Absconsion---Scope---Accused persons were alleged to have murdered the deceased and attempted at the life of complainant and eye-witnesses---Accused persons were directly charged for commission of the offence---Incident had occurred in the broad daylight, so no question of mistaken or false implication arose inasmuch as the parties were known to each other---Two empties were recovered from the spot by Investigating Officer and a rifle thrown by accused while decamping from the spot were sent to Forensic Laboratory, where it was opined that the same were fired from the said rifle---No evidence was available on the file which could suggest that on the day of occurrence, the accused persons were away from their village in connection with earning their livelihood---Acquittal of co-accused did not benefit the accused persons for the reason that evidence collected by the investigating agency against the accused persons was yet to be analyzed by the Trial Court---No explanation was available on record to justify the absconsion of more than one and a half years of the accused persons---Petition for grant of bail was dismissed, in circumstances.

Akbar Said v. Moambar and another 2017 Cr.L.J. Note 137 ref.

Habibullah v. Qadir Khan and 2 others 2018 PCr.LJ 481 rel.

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

----S. 497---Bail---Absconsion---Scope---Fugitive from law loses some of the normal rights granted by the procedural and substantive law and noticeable absconsion disentitles the absconder to the concession of bail notwithstanding merits of the case.

Awal Khan and others v. The State PLD 1985 SC 402 and Raza Khan v. State 2013 MLD 810 ref.

Saif ur Rehman Khan for Petitioners.

Adnan Ali, Asstt: A.G. for the State.

Muhammad Waheed Anjum for the Complainant.

2021 M L D 232

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad and Ahmad Ali, JJ

MUHAMMAD KHALID KHAN---Petitioner

Versus

INSPECTOR GENERAL OF PRISONS, KHYBER PAKHTUNKHWA and another---Respondent

Writ Petition No.1006-A of 2019, decided on 20th May, 2020.

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

----S.21-F [as inserted by Anti-Terrorism (Amendment) Ordinance (XXIX of 2001)]---Remissions---Entitlement---Date of F.I.R.---Scope---Petitioner was convicted by Trial Court under Anti-Terrorism Act, 1997, and his grievance was that benefit of remissions was denied to him---Validity---Anti-Terrorism (Amendment) Ordinance, 2001 was published on 15-8-2001 in this Gazette of Pakistan, Extraordinary, Part-I; case against petitioner was registered prior to the promulgation of Amending Ordinance--- Registration of F.I.R. was prior in time, as such, provisions of Amending Ordinance could not be applied to the case of petitioner retrospectively--- Law existed at the time of registration of F.I.R. was to be applicable to the case of petitioner who was entitled for remissions--- High Court directed the authorities to grant remissions to petitioner under the law prevailing at the time of registration of the case---Constitutional Petition was allowed in circumstances.

Muhammad Nawaz alias Asif alias Phallo v. The Superintendent Central Jail Gujranwala and others 2016 PCr.LJ 989 rel.

Muhammad Asjad Pervez Abbasi for Petitioner.

Raja Muhammad Zubair, AAG along with Tariq Sheikh, Law Officer, Central Prison, Haripur for Respondents.

2021 M L D 272

[Peshawar]

Before Ikramullah Khan, J

AFSAR KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.1097-P of 2020, decided on 6th May, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S.59---Possession of narcotics---Bail, grant of---Registration of case under repealed Act---Scope---Accused was alleged to have been found in possession of 2400 grams of charas---Case against accused was registered under S.9(c) of Control of Narcotics Substances Act, 1997, which had already been repealed under S.59 of Khyber Pakhtunkhwa Control of Narcotics Substances Act, 2019---Newly added subsection (3) of S.59 of Khyber Pakhtunkhwa Control of Narcotics Substances Act, 2019, however, provided that all proceedings done under the Control of Narcotics Substances Act, 1997, were protected till 31st January 2020 and thereafter no law enforcing agency was empowered to register cases under the repealed Act in the Province but the seizing officer handed over the case to ANF officials instead of local police, who registered the case under the repealed Act, which was against the law---Petition for grant of bail was allowed.

Zohra Durrani and Sidra Naz for Petitioner.

Tariq Kakar, Special Prosecutor for ANF for the State.

2021 M L D 288

[Peshawar]

Before Qaiser Rahid Khan, J

MUHAMMAD JAMAL---Petitioner

Versus

Mst. AYESHA KAUSER and 5 others---Respondents

Writ Petition No.2235-P of 2016, decided on 28th January, 2019.

Family Courts Act (XXXV of 1964)---

---S. 5, Sched.---Suit for dissolution of marriage, recovery of dower, dowry articles and maintenance---Scope---Petitioner/ husband assailed the judgments and decrees passed by courts below---Validity---Bone of contention between the parties was an iqrarnama whereby respondent/wife had returned the gold ornaments which were earlier handed over to her---Scribing of the iqrarnama and its contents were duly proved---Petitioner had failed to rebut that he had treated the respondent with cruelty and that she had left his house of her own volition---Petitioner had not produced even a single witness to support his stance or for that matter to say a word in rebuttal to the story put forward by the respondent and her witnesses---Constitutional petition being devoid of merits was dismissed, in circumstances.

Misbahullah and Abdul Aziz for Petitioner.

Syed Asif Ali Shah for Respondents.

2021 M L D 307

[Peshawar (Abbotabad Bench)]

Before Shakeel Ahmad and Ahmad Ali, J

MUHAMMAD SALEEM---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No.89-A of 2019, decided on 12th May, 2020.

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

----Ss.302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Accused were charged for committing murder of the grandson of complainant---Record revealed that it was a blind murder and there was no eye-witness of the occurrence---Complainant had deposed that they were in search of the deceased when his son informed him that the dead body of the deceased was lying on the place of occurrence---Complainant thus rushed to the spot and upon arrival of the police made report---Son of the complainant, however, never informed the police about the presence of dead body of the deceased at the spot, rather he rushed towards the complainant and informed him about the presence of dead body of the deceased at the spot---Accused were charged by the complainant through his supplementary statement, wherein the complainant neither mentioned any source of his satisfaction regarding involvement of the accused persons in the commission of offence nor any motive could be put forth, which resulted in the commission of murder of the deceased by the accused---Circumstances established that the prosecution had failed to build up a chain of circumstances to prima facie connect the accused with the commission of alleged offence---Appeal against acquittal was dismissed, in circumstances.

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

----Ss.302 & 34---Qatl-i-Amd, common intention---Appreciation of evidence---Appeal against acquittal---Recovery of weapon, crime empty and blood-stained stones---Scope---Accused were charged for committing murder of the grandson of complainant---Evidence on record, however, suggested that the Investigating Officer visited the spot and recovered blood-stained stones and two bullets during spot inspection through recovery memo., while on the same day, through a separate recovery memo., he also recovered one empty of .30 bore---Marginal witnesses of both the recovery memos., were different and they materially contradicted the Investigating Officer---Preparation of two separate recovery memos., at the same spot, during the same proceedings, did not appeal to a prudent mind and created a reasonable doubt in recovery of empty from the spot---Appeal against acquittal was dismissed, in circumstances.

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

----Ss.302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Contradictions in the statements of witnesses---Effect---Accused were charged for committing murder of the grandsons of complainant---Complainant stated that accused was arrested and in his presence, the crime pistol was recovered from the accused, which was taken into possession through memo---Complainant further stated that co-accused was not with the police at the time of arrest of accused---Investigating Officer negated the stance of complainant by stating that at the time of arrest of accused he was alone---Investigating Officer further contradicted complainant by stating that co-accused was with them at the time of arrest of accused; thus not only the recovery of empty from the spot of occurrence was doubtful, rather the recovery of pistol from the possession of accused was also full of doubts---Appeal against acquittal was dismissed, in circumstances.

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

----Ss.302 & 34---Qati-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Confessional statement of co-accused---Scope---Accused were charged for committing murder of the grandson of complainant---Record showed that the co-accused was arrested and remained in police custody for three days---Confessional statement of the co-accused was recorded by Judicial Magistrate---Judicial Magistrate in her statement, stated that accused might have been produced before her earlier---Time was given to co-accused to ponder over his confession and after an hour, the co-accused was produced before the Court for confessional statement by Police Official/witness---Said witness stated that he produced the accused before the Court for recording his confessional statement at 10:00 AM---Statement of Police Official and Judicial Magistrate when read in juxtaposition, it seemed that no proper time was given to the co-accused before recording his confessional statement---Co-accused, after recording confessional statement, was again handed over to the police and the probability that he was under the fear that in case he would not tender his confessional statement, he would be again handed over to police, could not be ruled out---Such confession of the co-accused, which was subsequently retracted, as a rule of caution, must be supported by some connecting/corroborative evidence, which was not available---Appeal against acquittal was dismissed, in circumstances.

State v. Waqar 1992 SCMR 950; Nazir Hussain v. The Crown 1969 SCMR 442; Habib Ullah v. The State 1971 SCMR 341 and State v. Minhun PLD 1964 SC 813 rel.

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

----S.164---Confessional statement---Scope---Conviction could be awarded to accused on sole basis of his confession, however, for that the confession must be voluntary, inculpatory, true, without an inducement, fear and coercion.

Manjeet Singh v. The State PLD 2006 SC 30 ref.

(f) Appeal against acquittal---

----Presumption of double innocence---Scope---Accused, after acquittal, earned presumption of double innocence.

Zaheer Sadiq v. Muhammad Ijaz and others 2017 SCMR 2007; Mst. Anwar Begum v. Akhtar Hussain alias Kaka and others 2017 SCMR 1710; Muhammad Zaman v. The State 2014 SCMR 749; Muhammad Tasweer v. Hafiz Zulkarnain PLD 2009 SC 53; Shahid Abbas v. Shahbaz and others 2009 SCMR 237 and Muhammad Shafi v. Muhammad Raza and others 2008 SCMR 329 rel.

2021 M L D 346

[Peshawar]

Before Waqar Ahmad Seth and Syed Muhammad Attique Shah, JJ

CHIEF ADMINISTRATOR OF AUQAF, PESHAWAR---Petitioner

Versus

CANTONMENT BOARD, PESHAWAR through Executive Officer and others---Respondents

Writ Petition No. 1239-P of 2013, decided on 24th June, 2020.

Cantonments Act (II of 1924)---

----S.99(2)(f)---Constitution of Pakistan, Arts. 165 & 165A---Property tax, exemption from---"Public purpose"---Scope---Property in question was owned by petitioner/Auqaf Department and the same was rented out to tenants---Petitioner/Auqaf Department assailed notice of recovery of property tax issued by respondent/Cantonment Board on the plea that it was exempted from property tax---Validity---Department of petitioner was an autonomous body, which was quite distant from that of the definition of government property and as such covered by provision of Art. 165-A of the Constitution---Petitioner did not qualify for exemption and its stance regarding exemption of property in question was misconceived---Only those properties were exempted from recovery of property tax which were properties of government or in its occupation and were being used for public service or public purpose---Property in question was rented out to private individuals (tenants) for commercial and business purposes---Petitioner department was deriving income and profit therefrom and the same did not fall within the definition of 'Public Service' and 'Public Purpose', therefore, provision of S. 99 of Cantonments Act, 1924, could not be extended to property in question--High Court declined to interfere in recovery of property tax from petitioner for property in question---Constitutional petition was dismissed, in circumstances.

Central Board of Revenue v. S.I.T.E. PLD 1985 SC 97; Karachi Development Authority v. Central Board of Revenue and others 2005 PTD 2131 and Cantonment Board, Karachi through Chief Executive and another 2014 PTD 136 rel.

Farmanullah Khattak for Petitioner.

Ihsan-Ullah and Muhammad Tufeeq Qureshi D.A.G. for Respondents.

2021 M L D 379

[Peshawar (D.I. Khan Bench)]

Before Sahibzada Asadullah, J

MALAY KHAN---Petitioner

Versus

The STATE and another---Respondents

Cr. M.B. No.127-D of 2020, decided on 14th April, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 427 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees and common intention---Bail, refusal of---Absconsion of accused---Scope---Accused along with another was alleged to have murdered the complainant's brother---Accused was directly charged for commission of the offence---Incident had occurred in the daylight, so no question arose with regard to misidentification of the culprits, that too when the parties were known to each other---Deceased had multiple injuries on his body and the Investigating Officer had recovered seven empties of 7.62 bore from the spot which lent support to the case of the prosecution---Tractor of the complainant was also taken into possession which had bullet marks on its body and was damaged in which respect S.427, P.P.C., was added, which further supported what the complainant stated---Counsel of accused invited the attention of Court to the fact as to how the complainant escaped unhurt when two of the accused were firing at the tractor simultaneously---Court, while seized of the bail matter had to make tentative assessment and deeper appreciation of evidence was unwarranted, which could prejudice the case of either side---Accused had remained fugitive from law for almost three years and had failed to justify such a long absconsion---Petition for grant of bail was dismissed, in circumstance.

Aamir Bashir and another v. The State and another 2017 SCMR 2060 ref.

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

----S.497---Bail---Absconsion of accused---Scope---Fugitive from law loses some of the normal rights granted by procedural and substantive law and noticeable absconsion disentitles the absconder to the concession of bail notwithstanding merits of the case.

Awal Khan and others v. The State PLD 1985 SC 402 and Raza Khan v. State 2013 MLD Pesh. 810 ref.

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

----S.497---Bail---Commencement of trial---Scope---Accused was not to be released on bail when trial is in progress.

Said Akbar and another v. Gul Akbar and another 1996 SCMR 931 ref.

Inamullah Khan Kundi for Petitioner.

Adnan Ali, Asstt: A.G. and Salimullah Khan Ranazai for Respondent.

2021 M L D 401

[Peshawar]

Before Wiqar Ahmad, J

TAHIR and 4 others---Petitioners

Versus

HAFEEZ-UR-REHMAN and 3 others---Respondents

Writ Petition No.3547-P of 2018, decided on 6th September, 2019.

Easements Act (V of 1882)---

----S.13---Specific Relief Act (I of 1877), S.42---Suit for declaration---Easements of necessity and quasi easements---Scope---Plaintiffs instituted a suit for declaration of right of ownership in respect of one marla against the defendants---Suit was decreed by the Trial Court and appeal filed against the decree was dismissed, however, as no other alternate passage was available to the entrance of the defendants' house, therefore, the appellate court allowed the defendants to use the passage for entrance and exit till an alternate arrangement was made by the defendants---Plaintiffs filed review petition, which was allowed and the defendants were given a maximum time of one year for making the alternate arrangement of passage for their house---Validity---Appellate court while passing impugned order in review had failed to take into account the fact that the Local Commission report had clearly concluded that the disputed passage was the only access to the defendants' house---Effect of the original order, while passing the review order, was reversed vis-à-vis granting of easement to the defendants---Appellate court while passing the review order had also transgressed the limits of review jurisdiction as grant of right of way to the defendants was not a mistake but a deliberate and considered decision of the court, which was unjustifiably reversed---Revision petition was allowed and order passed by appellate court on review petition was set aside.

Pakistan Warranted Warehouse Limited v. Sindh Industrial Estate 1991 SCMR 119; Abdul Hamid Shah v. Muhammad Yar PLD 1991 SC 815 and Noor Muhammad v. Mst. Wilayat Khatoon 2002 SCMR 1294 ref.

Muhammad Irshad Mohmand for Petitioners.

Muhammad Rustam Khan for Respondents.

2021 M L D 424

[Peshawar]

Before Muhammad Ayub Khan and Syed Arshad Ali, JJ

SANA ULLAH KHAN and 39 others----Petitioners

Versus

PRESIDENT PAKISTAN VETERINARY MEDICAL COUNCIL (PVMC) and 5 others----Respondents

Writ Petition No.2406-P of 2018, decided on 3rd July, 2018.\

Pakistan Veterinary Medical Council Act (III of 1996)---

----Ss.15 & 16---Constitution of Pakistan, Arts. 9 & 199---Right to livelihood---Good governance---Registration with Pakistan Veterinary Medical Council (PVMC)---Petitioners completed 5 years education of DVM Programme but the Council refused to register them---Validity---If it appeared to PVMC that Agriculture University was not complying with its directions or requirements of registration of faculty members, the Council could recommend to Federal Government for withdrawal of recognition to Agriculture University---Council could not refuse registration to the persons who had acquired their degree in DVM Programme from a recognized institution--- Petitioners successfully completed their five years DVM Programme and a vested right had accrued to them to utilize the degree which they had obtained after undergoing the rigors of continued study for good five years, in the manner and for the purposes envisaged by Pakistan Veterinary Medical Council Act, 1996---Keeping petitioners in the state of lurch, was not only against the concept of good governance but would also deprive them right to livelihood, which was guaranteed through Art.9 of the Constitution--- High Court directed PMVC to register names of petitioners and issue them required certificates---Constitutional petition was allowed, in circumstances.

Ejaz Ahmad Malik for Petitioner.

Danyal Khan Chamkani, A.A.G. and Khalid Khan along with Dr. Alamdar Hussain Malik, Registrar for Respondents.

2021 M L D 461

[Peshawar (Bannu Bench)]

Before Ikramullah Khan and Sahibzada Asadullah, JJ

ARSALAN---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No.130-B of 2018 with Murder Reference No.06-B of 2018, decided on 3rd December, 2019.

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

----Ss.302(b), 392 & 411---Qatl-i-amd, robbery, dishonestly receiving stolen property---Appreciation of evidence---Prosecution case was that the accused tried to snatch laptop, mobile and motorcycle, which was resisted by nephew of complainant, due to which the accused fired at him, as a result of which victim sustained injuries and died later on---Record showed that the complainant reported the matter to the local police with promptitude when the deceased was injured and unconscious---Complainant narrated the incident as he had seen and the arrival soon after the incident with injured to the hospital excluded the chances of consultation and deliberation and false charge---Defence alleged that the injured was brought by the local police to the hospital as the name of the complainant figured nowhere in the Medico-Legal Report but that submission gained no ground as the deceased in injured condition was rushed to the hospital and he was placed before the doctor---Report was made by the complainant well within 45 minutes of the occurrence---Complainant was cross-examined at length, but the defence could not succeed to bring anything favourable from his mouth---Complainant was never questioned and never suggested that the charge was brought against the accused owing to some previous grudge---Complainant from the very beginning stated that there was no motive---Purpose of the accused was manifest from the fact that soon after the occurrence he fled on motorcycle of the deceased and took away the laptop and mobile phone of the deceased---Accused was so hardened that at time of arrest the snatched articles were recovered from his possession---Prosecution went with the investigation honestly and the defence could not point out any dent or mala fide---Complainant produced the registration of the motorcycle and also the purchase receipts of both the laptop and mobile phone---Circumstances established that the prosecution had successfully proved its case against the accused---Appeal against conviction was dismissed and Murder Reference was answered in the positive.

Saeed and 2 others v. The State 2003 SCMR 747 rel.

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

----Ss.302(b), 392 & 411---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-i-amd, robbery, dishonestly receiving stolen property---Appreciation of evidence---Test identification parade---Scope---Prosecution case was that the accused tried to snatch laptop, mobile and motorcycle, which was resisted by nephew of complainant, due to which the accused fired at him, as a result of which victim sustained injuries and died later on---Identification parade was arranged, where the recovered articles were got identified from the complainant before the Judicial Magistrate---Judicial Magistrate was examined, who was put to searching cross-examination but nothing adverse could be extracted from him---Appeal against conviction was dismissed and Murder Reference was answered in the positive.

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

----Ss.302(b), 392 & 411---Qatl-i-amd, robbery, dishonestly receiving stolen property---Appreciation of evidence---Recovery of weapon and crime empties---Reliance---Scope---Prosecution case was that the accused tried to snatch laptop, mobile and motorcycle, which was resisted by nephew of complainant, due to which the accused fired at him, as a result of which victim sustained injuries and died later on---Record showed that the Investigating Officer recovered blood-stained pebbles and four empties of .30 bore from the spot---At the time of arrest .30 bore pistol was also recovered from possession of the accused, which was sent along with the recovered empties to Forensic Science Laboratory for chemical analysis---Report was received in positive, which corroborated the prosecution story---Appeal against conviction was dismissed and Murder Reference was answered in the positive.

Nizamuddin v. The State 2010 SCMR 1752 rel.

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

----Ss.302(b), 392 & 411---Qatl-i-amd, robbery, dishonestly receiving stolen property---Appreciation of evidence---Ocular account supported by medical evidence---Scope---Prosecution case was that the accused tried to snatch laptop, mobile and motorcycle, which was resisted by nephew of complainant, due to which the accused fired at him, as a result of which victim sustained injuries and died---Record showed that the deceased, then injured, when reached the hospital was unconscious and the scribe submitted application to the doctor for his opinion regarding deceased's capability to talk, which was endorsed by the doctor's noting that the injured was unconscious---Deceased then injured was referred to another hospital but he lost the battle of his life on the next day i.e. on 5-2-2014---Dead-body was brought back to the village after the post-mortem examination---Seat of injuries supported the stance of the complainant as the deceased had received the fire arm injuries from his front and so the medical was in harmony with the ocular account---Circumstances established that the prosecution had successfully proved the case against the accused---Appeal against conviction was dismissed and Murder Reference was answered in the positive.

Nizamuddin v. The State 2010 SCMR 1752 rel.

Sultan Mehmood Khan for Petitioner.

Shahid Hameed Qurashi, Additional Advocate General for the State.

Muhammad Rashid Khan Dirma Khel for Respondents.

2021 M L D 493

[Peshawar]

Before Ahmad Ali, J

KASHIF---Petitioner

Versus

The STATE and another---Respondents

Criminal Bail Application No.11-P of 2020, decided on 31st January, 2020.

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

----Ss.497 & 164-B---Penal Code (XLV of 1860), Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage and rape---DNA test---Bail, grant of---Further inquiry---Scope---Accused was alleged to have abducted the complainant's daughter to compel her for marriage and thereafter raped her---Victim had twice left her house but the accused was not charged by the complainant in his initial report but charged by her statement recorded under S.164, Cr.P.C.---Medical examination of the victim revealed no signs of recent intercourse---Section 164-B, Cr.P.C., was not complied with because no samples for DNA tests were obtained either from the accused or victim despite the fact that the word "shall" was used in the relevant provision which made its applicability mandatory---Except solitary statement of abductee, no other incriminating evidence was available on record to prima facie connect the accused with the commission of crime---Report of Forensic Laboratory regarding the swab was negative---Main ingredients of S.365-B, Cr.P.C., were also missing because it was not mentioned by the abductee that by what means she was abducted---Case of accused fell within the ambit of subsection (2) of S.497, Cr.P.C., calling for further inquiry in the matter---Petition was allowed, in circumstances.

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

----S.497---Bail---Scope---Bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced.

Haji Muhammad Nazir v. State 2008 SCMR 807 ref.

Niaz Ali Khan Jhagra for Petitioner.

Fawad Faisal for the State.

Arif Ullah along with Complainant.

2021 M L D 509

[Peshawar (Bannu Bench)]

Before Ikramullah Khan and Sahibzada Asadullah, JJ

MUHAMMAD NASEER----Appellant

Versus

The STATE and others----Respondents

Criminal Appeal No.145-B of 2019, decided on 2nd December, 2019.

(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---Non-availability of justification for the presence of complainant at the spot---Scope---Accused was charged that he along with his co-accused made firing upon complainant and his brother, who was hit and died whereas complainant escaped unhurt---Motive was stated to be the dispute over landed property---Record showed that complainant deposed that there was a distance of 47 paces between him and deceased while they had started for village---Said fact confirmed that the complainant was not accompanying the deceased at the relevant time---Complainant stated that he was also fired at but escaped unhurt---If complainant was present being empty handed he too was at the mercy of the assailants and they would have easily done away with him---Occurrence occurred at 10:15 a.m. but no effort was made to shift the deceased to the police station and to report the matter there---If the complainant was present with the deceased at the time of firing, he would have either shifted the dead body to the police station or to the hospital---Complainant was in the village and was informed there, wherefrom he in the company of his relatives reached to the spot within thirty minutes---Presence of the witness was not free from doubt, as the complainant had no personal property but it was the property of their uncle who was residing abroad and the accused were their first cousins---Complainant could not show the purpose of his presence and coming to the fields---Even the accused had got nothing on the spot, neither the complainant was ploughing or sowing the field or were in possession of the same which annoyed the accused to a degree to kill the deceased---If the complainant was present and the accused had the intention to kill them, no hurdle was there to stop them from killing the complainant as well---Circumstances established that the prosecution had failed to prove its case against accused---Appeal against conviction was allowed, in circumstances.

Zahir Shah v. The State 2019 MLD 1562 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---Benefit of doubt---Unnatural conduct of complainant---Scope---Accused was charged that he and co-accused made firing upon complainant and his brother, who was hit and died whereas complainant escaped unhurt---Complainant stated that he did not accompany the dead body to the hospital rather preferred to stay on the spot with a witness---Said conduct of complainant was not natural---Priority of complainant would be to accompany the dead body to the hospital rather than to stay in the adjoining baithak for hours---Circumstances established that the prosecution had failed to prove its case against accused---Appeal against conviction was allowed, in circumstances.

(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---Benefit of doubt---Motive was not proved---Effect---Accused was charged that he and co-accused made firing upon complainant and his brother, who was hit and died whereas complainant escaped unhurt---Motive was stated to be the dispute over landed property---Motive was alleged but nothing was on record to prove the same---Circumstances established that the prosecution had failed to prove its case against accused---Appeal against conviction was allowed, in circumstances.

Noor Muhammad v. The State and another 2010 SCMR 97 rel.

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

----Ss.302(b), 324 & 34---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Withholding material witnesses---Effect---Accused was charged that he and co-accused made firing upon complainant and his brother, who was hit and died whereas complainant escaped unhurt---Record showed that the place of occurrence was surrounded by fields but no farmer from the adjoining lands was made as witness---Witness was examined under S.161, Cr.P.C., but he did not turn up to record his statement during the trial as he was the witness who could say that the complainant had come in the company of the deceased and who could better explain as to who shifted the dead body of the deceased to his baithak---Said witness avoided to appear mainly for the reason that he was not ready to support false charge of the complainant and his non-production led to a negative inference against the prosecution---Circumstances established that the prosecution had failed to prove its case against accused---Appeal against conviction was allowed, in circumstances.

Riaz Ahmad v. The State 2010 SCMR 846 rel.

(e) 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---Ocular and medical evidence---Conflict---Scope---Accused was charged that he and co-accused made firing upon complainant and his brother, who was hit and died whereas complainant escaped unhurt---Record showed that the ocular account was in conflict with the medical evidence---Deceased was facing the accused, the seat of injuries and the place of the deceased did not support the stance of the complainant as one injury was from front to back but the others were from left to right---Medical Officer had given the time between death and post-mortem as three/four hours which took the time of death earlier than the one noted---Dead body was identified by the relative and co-villagers, i.e. before the police and before the doctor at the time of post mortem examination---Had the complainant been present at the spot, he would have at least identified the deceased before the police as the Inquest report was already prepared on the spot---Said fact showed that it was a blind murder---Circumstances established that the prosecution had failed to prove its case against accused---Appeal against conviction was allowed, in circumstances.

Nasir Ali and others v. Sajjad Hussain and others PLD 2006 SC 560 rel.

(f) Criminal trial---

----Absconsion---Scope---Mere absconsion of accused was not conclusive proof of guilt---Absconsion was only a suspicious circumstance against an accused---Suspicions could not take the place of proof---Value of absconsion, therefore, depended on the facts of each case.

Liaqat Hussain and others v. Falak Sher and others 2003 SCMR 611(a) rel.

Muhammad Rashid Khan Dirma Khel and Abid Anwar Khattak for Appellant.

Malik Akhter Nawaz for Respondent.

Shahid Hameed Qureshi, Additional Advocate General for the State.

2021 M L D 527

[Peshawar]

Before Ahmad Ali, J

UMAIR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.3626-P of 2019, decided on 2nd January, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss. 377 & 511---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), Preamble, Ss. 2(1)(e) & 53---Unnatural offence, attempting to commit offence punishable with imprisonment for life or for a shorter term---Child at risk---Sexual abuse---Bail, grant of---Delayed FIR---Non-availability of medical evidence---Further inquiry---Scope---Accused was alleged to have attempted to subject the minor son of complainant of sodomy---Crime report was lodged after a delay of about four and a half hours without any plausible explanation---No medical examination of the victim was conducted---No incriminating evidence was available on record to prima facie connect the accused with the commission of offence---High Court observed that keeping in view the Preamble of Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, in juxtaposition with definition of "child at risk" as contemplated in its S.2(1)(e) coupled with the facts and circumstances of the case, it could not be ascertained as to whether the alleged victim fell under the definition of "child at risk" or otherwise---Applicability of S.53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, as well as S.511, P.P.C., to the case of accused was a begging question---Case of accused called for further enquiry under subsection (2) of S.497, Cr.P.C.---Petition for grant of bail was allowed, in circumstances.

2019 PCr.LJ 899; 2016 SCMR 2176; 2016 SCMR 1523; 2014 MLD 190 and 2018 YLR Note 114 ref.

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

----S.497---Bail---Accused in custody of sureties---Scope---Bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced.

Haji Muhammad Nazir v. State 2008 SCMR 807 ref.

Ayub Zaman for Petitioner.

Rab Nawaz Khan, A.A.G. for the State.

Tajdar Faisal Khan for the Complainant.

2021 M L D 556

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

SOHAIL MAQBOOL AWAN---Petitioner

Versus

FAHAD IDREES---Respondent

Civil Revision No.284-A of 2014, decided on 15th July, 2020.

Civil Procedure Code (V of 1908)---

----Ss. 148 & 151---Decree, issuance of---Enlargement of time---Subject to deposit of court fee within stipulated time---Scope---Non-compliance of condition attached with the decree---Effect---Decree issued in favour of petitioner/plaintiff was subject to depositing balance court fee within fifteen(15) days, failing which the suit would be deemed to have been dismissed---Executing Court dismissed the execution petition of the petitioner because he had failed to deposit balance court-fee within stipulated time ---Held, that the Trial Court once having passed a conditional decree, the suit would stand automatically dismissed for non-deposit of court fee within the stipulated time incorporated in the judgment and decree---Court issuing the decree would become functus officio and the time could not be enlarged by the Executing Court not only because non-compliance had operated into automatic dismissal of suit but also because a valuable right had also accrued to the respondent/defendant---Court could not extend the time under S.148, C.P.C., where the period was fixed/granted by the decree/final order---Decree could be altered by review or appeal or revision; but neither S.148 nor S.151, C.P.C., could be utilized for the purpose of altering a decree---No illegality or irregularity was found in the impugned order passed by the Executing Court---Revision petition was dismissed, in circumstances.

Mst Lal Rain v. Durga Das Narain AIR 1924 Pat 387 and Himmurs v. Fauja AIR 1921 Lah. 06 ref.

Muhammad Jehangir Khan for Petitioner.

Qazi Obaid-ur-Rehman for Respondent.

2021 M L D 580

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

Mst. FARAH DEEBA---Appellant

Versus

SAID MUHAMMAD alias TOTI and another---Respondents

Criminal Appeal No.03-M of 2019, decided on 19th February, 2020.

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

----Ss.3 & 8A---Criminal Procedure Code (V of 1898), S.4(h)---Prevention of illegal dispossession of property, etc---Appeal---Appeal against acquittal---Appeal against dismissal of complaint---Maintainability---Scope---Section 3(1) of Illegal Dispossession Act, 2005, makes illegal occupation of the property as an offence and subsections (2) & (3) thereof provide the punishment for illegal occupation of the property---Trial Court has discretion either to acquit or convict the accused or even dismiss the complaint, if found not maintainable, keeping in view the law and evidence on record---Order of acquittal of the accused, dismissal of the complaint or conviction of the accused fall within the mischief of word "order" and are thus appealable in terms of S.8A of the Illegal Dispossession Act, 2005---Dismissal of complaint shall have the same consequence because the complaint, as provided in the Illegal Dispossession Act, 2005, is not synonymous with the complaint as provided in S.4(h) of the Criminal Procedure Code, 1898---Appeal against the order of acquittal passed by Trial Court under the Illegal Dispossession Act, 2005 was declared to be maintainable.

Pir Farman Ali Shah and 10 others v. Yousaf Khan and 4 others 2019 MLD 1622; Zafar Iqbal v. The State and 5 others 2012 PCr.LJ 507; Mian Sharif Khan v. Nawab Khan and 5 others PLD 2011 Pesh. 86, Mian Bahadur Jan v. The State and another PLD 2009 Pesh. 70; Yafas v. The State and others PLD 2007 Pesh. 123 and Faiz Muhammad and others v. Mehrab Shah and others PLD 1997 Pesh. 166. distinguished.

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

----S.8A---Appeal---Scope---Words "any order" occurring in S.8A of the Illegal Dispossession Act, 2005, have a wider connotation and exhibit the intention of the lawmaker---Word "any" is indeed a word of wider meaning which prima facie means "without limitation".

Lakhi Barua v. Union of India AIR 2008 Cal. 59 rel.

(c) Words and phrases---

----"Order"---Meaning---Scope---Word "order", when not defined or explained in an Act, would be held equivalent to or synonymous to the word "decision".

Beneth Coleman & Co. v. ITO 1983 141 ITR 239, 245 rel.

Naveed Ali Khan for Petitioner.

Wilayat Ali Khan, A.A.G. for the State.

Syed Sultant Khan for Respondent No.2.

2021 M L D 592

[Peshawar]

Before Ikramullah Khan, J

ROOHUL AMIN----Petitioner

Versus

TELENOR PAKISTAN (PVT.) LIMITED COMPANY through Executive Legal Affairs

and 4 others----Respondents

Writ Petition No.6131-P of 2018, decided on 14th September, 2020.

Civil Procedure Code (V of 1908)---

----O.XXIX, R.1 & O.VII, R.11---Specific Relief Act (I of 1877), S.54---Suit for permanent injunction---Application for rejection of written-statement, dismissal of---Subscription and verification of pleadings in suits by or against the corporation---Authorized attorney---Scope---Plaintiff filed an application for rejection of the written-statement of the defendant (cellular company), however, both the Courts below dismissed the said application---Petitioner/plaintiff contended that written-statement of the defendant (cellular company) was not filed by the authorized attorney---Held, that O.XXIX, R.1 of Civil Procedure Code, 1908, stipulated that in suits by or against the corporation, pleadings was to be signed and verified, on behalf of the corporation, by the Secretary or by any Director or other Principal Officer of the corporation who was able to depose to the facts of the case---Plaint filed by the petitioner revealed that the petitioner himself had sued the respondent (cellular company) through its executive legal, while rest of the respondents (tower workers union etc.) had been sued in their personal capacity--- Well authorized attorney had filed written-statement on behalf of the respondent (cellular company), who was well conversant with the facts of the case---Said attorney signed and verified the written statement; he was duly authorized by the authorized person, nominated by Board of Directors vide its resolution---No illegality or infirmity was found in the concurrent findings of the two Courts below---Constitutional petition was dismissed, in circumstances.

Amjad Ali for Petitioner.

Muhammad Farooq Afridi for Respondent.

2021 M L D 642

[Peshawar]

Before Muhammad Naeem Anwar, J

KARIM DAD----Petitioner

Versus

Mst. SHAHZADGAI----Respondent

Civil Revision Petition No.118 of 2020, decided on 8th May, 2020.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Suit for pre-emption---Talb-i-muwathibat---Scope---Petitioner assailed the dismissal of his suit for pre-emption as well as his appeal---Validity---Petitioner claimed that he was informed by his son-in-law (informer) about the sale at 8:00 a.m.---Informer was resident of another village which was half kilometer away---Informer deposed that he obtained knowledge about the sale at about 7:45 a.m.; had breakfast; proceeded to the petitioner's village and informed him at 8:00 a.m. about the sale---Held, informer's story did not appeal to a prudent mind, thus, both the courts below had rightly held that the petitioner could not prove Talb-i-muwathibat---Revision petition was dismissed, in circumstances.

Mir Muhammad Khan and 2 others v. Haider and others PLD 2020 SC 233 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Suit for pre-emption---Talb-i-ishhad---Service of notice on person other than vendee---Effect---Petitioner assailed the dismissal of his suit for pre-emption as well as his appeal---Validity---Talb-i-ishhad was not proved as the notice was not served upon the respondent/vendee rather the same was received by another person---Talb-i-ishhad could not be considered to have been proved, in circumstances---Revision petition was dismissed. Mir Muhammad Khan and 2 others v. Haider and others PLD 2020 SC 233 rel.

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

----S.35-A & O. XLI, R. 33---Compensatory costs in respect of false or vexatious claims or defences---Power of Court of Appeal---Scope---Petitioner assailed the dismissal of his suit for pre-emption, dismissal of his appeal and imposition of costs by the Appellate Court---Validity---Section 35-A, C.P.C. empowered the Trial Court alone to give compensatory costs to the successful party against the defeated party, if the claim or defence was found false, vexatious and the successful party had taken the plea at earliest stage of suit---Imposition of cost by the Appellate Court was held to be without jurisdiction, as such, findings to such extent were modified---Revision petition was dismissed.

Abdur Rahim Sathi v. Ghulam Sarwar and 11 others reported in 2009 CLC 1039 fol.

Sindh Industrial Trading Estates through its Secretary, Karachi v. Mst. Qamar Hilal and 5 others 2001 SCMR 1680 rel.

(d) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Demand of pre-emption---Scope---Right of pre-emption is not established until the demand is properly made in presence of the witnesses and it is requisite that it be made as soon as possible after the sale is known; for the right of pre-emption is a feeble right, as it is disseizing another of his property merely in order to apprehend inconvenience.

Hidaya by Sheikh Burhanuddin Abi Al Hasan Al Marghinani Volume III Book XXXVIII (of Shuf'ah) page 360. ref.

Hayat Ullah Khan for Petitioner.

2021 M L D 691

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim, J

NIZAM UD DIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.172-M of 2020, decided on 9th October, 2020.

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

----Ss.324, 337-D & 34---Attempt to commit qatl-i-amd, jaifah, common intention---Appreciation of evidence---Statement of witnesses---Consistence---Scope---Prosecution case was that the accused and his co-accused stopped the nephew of complainant and fired at him whereby he sustained injury on left side of his chest---Dispute over the thoroughfare was mentioned as the motive behind the occurrence---Perusal of the record would reveal that the occurrence had taken place in daylight wherein injured sustained firearm injury by the firing of present accused in presence of eye-witnesses out of whom complainant appeared before the court as witness whereas the injured himself appeared in the witness box, being victim of the same occurrence by sustaining firearm injury on his person---Presence of the injured at the spot was established without any doubt---Statement of injured being worth credence could not be discarded on the basis of minor contradictions which did happen with the passage of time---Statement of complainant corroborated the narrations of the injured witness---Statement of both the said witnesses were consistent on material particulars of the occurrence and there was no reason for them to implicate an innocent person in the case---Testimony of said witnesses was rightly relied upon by Trial Court for convicting the accused---Circumstances established that could not make out a case for interference in the impugned judgment, therefore appeal, being devoid of merits, was dismissed, in circumstances.

Mawas Khan v. The State and another PLD 2004 SC 330 rel.

(b) Criminal trial---

----Witness---Interested and related witness---Reliance---Scope---If the courts got the satisfaction that no innocent person was implicated along with the guilty, the court could consider the statement of an interested witness, if corroborated through independent source.

Riaz Hussain v. The State 2001 SCMR 177 rel.

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

----Ss.324, 337-D & 34---Attempt to commit qatl-i-amd, jaifah, common intention---Appreciation of evidence---Ocular account supported by medical evidence as well as recoveries---Scope---Prosecution case was that the accused and his co-accused stopped the nephew of complainant and fired at him whereby he sustained injury on left side of his chest---Ocular account was corroborated by medical evidence as well as recoveries in shape of crime empties, crime weapon and blood-stained shirt of the injured---Prosecution had produced Medical Officer as well as the relevant witnesses of the recovery memos, who had supported the recoveries of blood-stained shirt of the injured, two crime empties from the spot and recovery of pistol from the accused at the time of his arrest---Testimony of said witnesses could not be brushed aside on the sole ground that they were police officials---Circumstances established that accused could not make out a case for interference in the impugned judgment, therefore, appeal, being devoid of merits, was dismissed, in circumstances.

(d) Criminal trial---

----Police witnesses---Reliance---Scope---Police Officials were as good witnesses as other private witnesses unless it was proved that they had deposed against the accused with ill-will or mala fide.

Amir Gulab Khan for Appellant.

Razauddin, A.A.G. for the State.

Murtaza Khan for the Complainant.

2021 M L D 725

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad and Ahmad Ali, JJ

RASHID KHAN---Petitioner

Versus

Mst. MOMNA JADOON and another---Respondents

Writ Petition No.464-A of 2020, decided on 11th March, 2020.

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

----S.491---Habeas corpus---Custody of minors---Scope---Petitioner/father assailed order passed by Sessions Judge whereby the respondent's/mother's application under S.491, Cr.P.C., for custody of minors was allowed---Contention of petitioner was that the minors were handed over to the petitioner in the light of compromise effected between him and his ex-wife in a family suit---Validity---Court below had only granted temporary custody of minors to the mother---Proceedings under S. 491, Cr.P.C. were summary in nature and were not intended to go beyond the summary consideration of the question essentially relevant to the alleged detention---Petitioner had not even bothered to appear before the Sessions Judge during pendency of the application---Constitutional petition was dismissed, in circumstances.

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

----S.491---Habeas corpus---Custody of minors---Scope---Proceedings under S.491, Cr.P.C., are summary in nature and are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention--- Court while deciding application is not required to go into question of status or relationship of the parties by holding full-fledged trial of the counter claim and it should concern itself only with the free will of the detenue.

Muhammad Afzal v. Sessions Judge, Multan PLD 2008 Lah. 479 ref.

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

----S.491---Guardians and Wards Act (VIII of 1890), Ss.12 & 25---Habeas corpus---Custody of minors---Scope---Jurisdiction of High Court under S.491, Cr.P.C., for recovery of minors is to be exercised sparingly and such exercise may be undertaken only in exceptional and extra-ordinary cases of real urgency keeping in view that even a Guardian Judge has the requisite powers of recovery of minors and regulating interim custody.

Mst. Nadia Parveen v. Mst. Almas Noureen PLD 2012 SC 758 ref.

Mujahid Khan for Petitioner.

2021 M L D 745

[Peshawar]

Before Ikramullah Khan and Ijaz Anwar, JJ

RASOOL KHAN---Petitioner

Versus

SAIF UR REHMAN and 7 others---Respondents

Writ Petition No.2666-P of 2020, decided on 25th June, 2020.

Criminal Procedure Code (V of 1898)---

----Ss.169, 173 & 190(2)---Penal Code (XLV of 1860), Ss. 302 & 324---Investigation report---Name in column No.2---Complainant was aggrieved of placing name of respondents / accused persons in column No. 2 of investigation Report submitted by investigating officer in case of qatl-i-amd and attempt to commit qatl-i-amd---Validity---Police had placed names of respondents / accused persons in column No.2 on account of deficient evidence however they were not discharged under S.169, Cr.P.C. by the concerned Police Official (SHO)---Report under S.173, Cr.P.C. was placed before Magistrate concerned who in view of S.190(2), Cr.P.C. would send the case before Court of Session--- Court of Session would take cognizance of offence and once cognizance was taken up in offence, then Court of Session could issue process against any person prima facie found concerned in commission of offence, notwithstanding the fact that such person was exonerated or his name was not mentioned in police report, or was placed in column No.2 of the report---High Court declined to interfere in investigation report as the same was premature---Constitutional petition was dismissed, in circumstances.

Chaudhry Muhammad Bashir v. Mirza Wahid Muhammad Baig and another PLD 2008 Kar. 280 rel.

Ishaq Ahmad Afridi for Petitioner.

Rab Nawaz Khan, Addl: A.G. for Respondents.

2021 M L D 811

[Peshawar]

Before Muhammad Nasir Mahfooz and Syed Arshad Ali, JJ

Dr. SAKAR (HEART SPECIALIST) and 4 others----Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, Defense Ministry, Islamabad and 5 others----Respondents

Writ Petition No.2147-P of 2020 with C.M. 955-P of 2020, decided on 22nd December, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Use of land, change of---Privacy rights---Petitioners were living close to Golf Club and their grievance was that authorities started constructing multistoried commercial building over the land of Golf Club and their privacy rights were violated---Contention of authorities was that construction was to provide additional facilities to golfers only---Validity---Any slight indication would be a ground for accrual of cause of action to petitioners or any other resident of area to invoke jurisdiction of High Court, so that present proceedings were not mis-interpreted as to allow commercial use---Authorities made a commitment that no commercial activities would be carried on in the premises of Golf Club, so they would honour their commitment but construction was not in any manner violate privacy right of residents of the area---In case any window was opened facing residential area, the same must be closed and if possible authorities were to avoid large scale gatherings---Constitutional petition was allowed accordingly.

Muhammad Aslam Siddiqui v. Federation of Pakistan PLD 2020 SC 142; Naimatullah Khan, Advocate v. Federation of Pakistan and others 2020 SCMR 1474; Ghulam Habib Jadoon v. Karachi Watch and Care Society and 3 others 2004 SCMR 911 and Wafi Associates (Pvt.) Limited v. Farooq Hamid and others 2010 SCMR 1125 ref.

Zahid Idris Mufti for Petitioners.

Muhammad Asghar Khan Kundi, Deputy Attorney General, Atif Ali Khan, Additional Advocate General and Khalid Anwar Afridi for Respondent.

2021 M L D 837

[Peshawar]

Before Muhammad Naeem Anwer, J

HIDAYAT ULLAH KHAN---Petitioner

Versus

MIRZA ALI KHAN---Respondent

Civil Revision Petition No.719-P of 2019, decided on 1st October, 2020.

(a) Estoppel, doctrine of---

----Definition---"Estoppel" is a doctrine of law which precludes a person from denying the truth of statement formally made by him.

Osborn dictionary rel.

(b) Damages---

----Special and general---Scope---Two kinds of damages i.e. special and general---For special damages one has to prove loss sustained by him of each and every particular item leading to suffering/damage alleged by him---General damages may also require evidence pertaining to facts as alleged in plaint.

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

----S.25---Suit for recovery of damages---Malicious prosecution---Plaintiff sought recovery of damages on the plea that he was wrongly made to face inquiry before NAB where he had to enter into voluntary return---Suit and appeal were concurrently dismissed by Trial Court and Lower Appellate Court---Validity---Factum of conviction or acquittal had no concern with the matter when plaintiff applied under S.25 of National Accountability Ordinance, 1999---Plaintiff accepted allegations so levelled against him and inquiry/investigation was completed against him---Allegations were levelled against plaintiff and he submitted application under S.25 of National Accountability Ordinance, 1999---High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings against plaintiff, as the same were not suffering from misreading and non-reading of evidence, nor there was any jurisdictional defect or infirmity in judgment of Courts below---Revision was dismissed, in circumstances.

PLD 2008 Kar. 558; PLD 1996 SC 77; PLD 1981 Kar. 575; 2007 YLR 328; PLD 1978 SC 220; PLD 1983 Kar. 345; PLD 1976 SC 469; 1968 SCMR 804; PLD 1951 Pesh. 117; PLD 1966 Kar. 126 and Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 ref.

Mst. Zaitoon Begum's case 2014 SCMR 1469 rel.

Altaf Ahmad for Petitioner.

Mati-Ullah Khan Marwat for Respondent.

2021 M L D 855

[Peshawar]

Before Rooh-ul-Amin Khan, J

ZEWAR KHAN and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.1634-P of 2020, decided on 27th July, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss. 324, 148 & 149---Attempt to commit qatl-i-amd, rioting, armed with deadly weapon and common object---Bail, grant of---Scope---Accused along with others was alleged to have attempted at the life of the uncle of complainant---Injured had sustained a solitary firearm entry wound with corresponding exit on his chest for which, by attributing a general role of indiscriminate firing, seven accused persons were charged---Injury sustained by the injured was not specifically attributed to anyone---Fire shot of which of the seven accused persons proved effective and sharing of common intention of the remaining accused with the accused of effective fire shot was yet to be determined during trial after recording evidence by the Trial Court---Escape of the complainant from indiscriminate firing of seven accused, who at the time of occurrence was in close proximity of injured, was yet another begging question which made the case of accused arguable for the purpose of bail---Petition for grant of bail was allowed, in circumstances.

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

----S.324---Criminal Procedure Code (V of 1898), S.497---Attempt to commit qatl-i-amd---Bail---Insertion of provisions of law governing the hurt---Scope---Question before High Court was whether in cases of attempt to commit qatl-i-amd, it would be legally justified at bail stage to send the case to the prosecution for insertion of provisions of law governing the hurt caused to injured of the case---Held; S.324, P.P.C., provided two types of punishments, one for the offence of an attempt to commit qatl-i-amd and another for the hurt caused, in addition to the punishment of the offence of attempt to commit qatl-i-amd---What the court(s) was required at bail stage to do was the determination of prima facie connectivity or otherwise of an accused seeking bail in the light of the tentative assessment of the material on record coupled with the story of the prosecution in the FIR---Even if any provision of law had been omitted by the prosecution, the court might take the same into consideration from the material on record---Court was not bound to deal with the case in the light of the provision of law levelled by the prosecution rather what offence(s) could be made out from the material on record would be taken into consideration---On legal premise, insertion of provision of law in a case was the sole prerogative of the Investigating Agency at the investigation stage; secondly, by the Prosecution Branch and lastly, the Trial Court at the time of framing of charge on the basis of the material available on file against an accused---Under S.227, Cr.P.C., the court may alter or add to any charge at any time before judgment was pronounced---Even otherwise, without alteration of charge, the Trial Court had ample powers under Ss.237 & 238, Cr.P.C., to award punishment under a penal provision, irrespective of the fact that charge under the said provision had not been framed, particularly, in the circumstances when charge had been framed in a provision providing major punishment, whereas the accused was being awarded minor punishment---Sending of case to the prosecution at bail stage for insertion of provision of law by High Court would amount to interference in investigation.

Wali Muhammad alias Walia v. Haq Nawaz and 3 others 1971 SCMR 717; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; Brig. (Rtd.) Imtiaz Ahmad v. Government of Pakistan through Secretary Interior Division Islamabad and 2 others 1994 SCMR 2142; Mazhar Naeem Qureshi v. The State 1999 SCMR 828 and Pordil Khan v. The State through Advocate General Khyber Pakhtunkhwa and 11 others 2016 MLD 314 ref.

Shabbir Hussain Gigyani for Petitioner.

Muhammad Riaz, AAG for the State.

Nemo. for Respondent No.2.

2021 M L D 877

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

MUHAMMAD IDREES---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail No.299-A of 2020, decided on 27th April, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss. 324, 337-N & 34---Attempt to commit qatl-i-amd, common intention and cases in which qisas for hurt shall not be enforced---Bail, grant of---Firing on non-vital parts---Further inquiry---Scope---Accused along with others was alleged to have fired at the complainant with intention to murder him---Complainant, as per site plan, was at the mercy of the accused, however, the accused fired at non-vital part of complainant's body, therefore, applicability of S.324, P.P.C., required further probe---Accused was neither a previous convict nor hardened or desperate criminal---No allegation against accused to the effect that the offence was committed in the name or on the pretext of honour, therefore, the question as to whether the punishment of tazir could be passed against accused or not, keeping in view the provisions of S.337-N(2), P.P.C., made the case of accused one of further enquiry---Petition for grant of bail was accepted.

Umar Hayat v. The State and others 2008 SCMR 1621 and Abdul Wahab and others v. The State 2019 SCMR 516 ref.

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

----S.497---Bail---Principle---Scope---Curtailment of liberty is a serious step in law, therefore, the judges should apply judicial mind with deep thought for reaching at a fair and proper conclusion albiet tentatively---Such exercise should not be carried out in vacuum or in a flimsy and casual manner as that would defeat the ends of justice because if the accused was ultimately acquitted at the trial then no reparation or compensation could be awarded to him for long incarceration, as the provisions of Criminal Procedure Code, 1898 and the scheme of law on the subject did not provide for such arrangements to repair the loss caused to an accused person, detained in jail without just cause and reasonable grounds.

2016 SCMR 18 ref.

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

----S.497---Bail---Bail does not mean acquittal of an accused but only change of custody from Government Agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced.

Haji Muhammad Nazir v. State 2008 SCMR 807 ref.

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

----S.497---Bail---Observations by High Court---Scope---Observations rendered by High Court while disposing bail applications are not to be considered during the trial of the accused.

Shuaib Mehmood Butt v. Iftekharul Haq 1996 SCMR 1845 rel.

Waqar Ahmed Khan for Petitioner.

Sardar Muhammad Asif, A.A.G. for the State.

Sardar Waqar-ul-Mulk for the Complainant.

2021 M L D 907

[Peshawar]

Before Rooh-ul-Amin Khan, J

MUHAMMAD HUSSAIN---Petitioner

Versus

AMJID HUSSAIN and another---Respondents

Criminal Miscellaneous Bail Application No.3743-P of 2020, decided on 18th January, 2021.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd and common intention---Bail, grant of---Medical grounds---Scope---Accused, who sought bail on medical grounds along with another, was alleged to have committed murder and attempted at the life of others while being in the house of complainant---Standing Medical Board constituted by the Court reported that the accused was 75 years old; that he was suffering from multiple diseases of severe nature and that his treatment inside the jail might not be possible---Correct criteria for grant of bail to an accused in a non-bailable case on medical grounds was that the sickness or ailment with which the accused was suffering was such that it could not be properly treated within the jail premises and that some specialized treatment was needed and his continued detention in jail was likely to affect his capacity or was hazardous to his life---Petition for grant of bail was allowed on the sole medical ground.

Haji Mir Aftab v. The State 1979 SCMR 320 ref.

Peer Mukaram ul Haq v. National Accountability Bureau (NAB) through Chairman and others 2006 SCMR 1225 and The State v. Haji Kabeer Khan PLD 2005 SC 364 rel.

Mian Manzoor Ahamed Watto v. The State 2000 SCMR 107 foll.

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

----S.497---Bail---Medical grounds---Scope---Where the court is satisfied of the sickness of the accused and that such disease cannot be properly treated in custody, then gravity of the disease outshines the gravity of the offence.

Shabbir Hussain Gigyani for Petitioner.

Arshad Ahmad, A.A.G for the State.

Ashfaq Ahmed Daudzai for the Complainant.

2021 M L D1023

[Peshawar]

Before Muhammad Naeem Anwar, J

SAID ALI and 3 others---Petitioners

Versus

NOOR ALI and 3 others---Respondents

Writ Petition No.1613-P of 2014, decided on 14th October, 2020.

Specific Relief Act (I of 1877)---

----S.8---Civil Procedure Code (V of 1908), S.47---Decree, interpretation of---Executing Court--- Powers---Compromise deed---Respondent-plaintiff filed suit for recovery of possession of house in question and the same was decreed on the basis of compromise deed---Validity---Executing Court was to follow decree and in no circumstances could go beyond the decree---Decree could not be interpreted as per the whims and wishes of decree holder or judgment debtor---Order of Executing Court was in consonance with judgment / order of Trial Court---Executing Court rightly issued warrants of possession against judgment debtor---Terms and conditions of compromise deed could be got executed in whose favour the same might be, amongst the parties, the same was to be executed in letter and spirit which could be pressed into service by decree holder or by judgment debtor---Constitutional petition was dismissed, in circumstances.

Abdul Hameed and 7 others v. Abdul Razzaq and 3 others PLD 2008 Lah. 1; Chaudry Ahmad Nawaz versus Province of Punjab and others 2015 SCMR 873; Irshad Masih's case 2014 SCMR 1481; 2004 CLC 1449; PLD 2005 Lah. 209; 2000 YLR 1798; 1994 MLD 1877; 1989 MLD 3602; PLD 1968 Lah. 144 and 2012 CLC 241 ref.

Muhammad Ijaz Khan Sabi for Petitioners.

Abdul Hafeez for Respondents.

2021 M L D 1097

[Peshawar]

Before Ikramullah Khan and Ahmad Ali, JJ

ZAHID---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.58-P of 2016, decided on 15th October, 2019.\

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

----S.302(b)---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-i-Amd---Appreciation of evidence---Maxim: Falsus in uno falsus in omnibus---Applicability---Witness not produced---Presumption---Eyewitness shown in site plan was abandoned by prosecution for unknown reasons---Adverse inference under Art.129(g) of Qanun-e-Shahadat, 1984, could be safely drawn that if that witness had entered into witness box then he would not have supported prosecution case--- Medical evidence was in conflict with ocular evidence and reliance of such ocular testimony was unsafe---Such evidence was not believed and was discarded--- Prosecution witnesses did not tell the actual truth rather posing themselves to the principle of 'falsus in uno, falsus in ominibus' i.e. 'false in one thing, false in everything--- Believing such evidence by Court would be against administration of criminal justice resulting into judicial death of an innocent accused---Either prosecution witnesses were not present on the spot or they were not telling the truth---Prosecution had failed to build any nexus of accused with commission of offence---High Court set aside the conviction and sentence awarded by Trial Court and acquitted the accused of the charge---Appeal was allowed in circumstances.

NLR 2015 SCJ 121; PLD 2016 SC 17; 2016 SCMR 1515; 2017 SCMR 135; 2017 SCMR 1189; 2017 SCMR 960; 1984 SCMR 42; PLD 1981 SC 472; 1972 SCMR 578; 2007 SCMR 1825; 1990 SCMR 158; 2011 SCMR 474; 2018 SCMR 153; 2017 SCMR 596; 2016 PCr.LJ 30; 2015 SCMR 315 and PLD 2019 SC 527 rel.

(b) Criminal trial---

----Witness---Improvements--- Effect--- Improvement once found to be deliberate and dishonest causes serious doubts on veracity of witnesses.

(c) Criminal trial---

----Benefit of doubt---Scope---For giving benefit of doubt, it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in prudent mind about guilt of accused makes him entitled to its benefit, not as a matter of grace in concession but as a matter of right.

2009 SCMR 230; 2011 SCMR 664; 2011 SCMR 646; PLD 1984 SC 433; 2012 MLD 1358; 2007 SCMR 1825; 2008 PCr.LJ 376; PLD 1994 Pesh. 114; PLD 2012 Pesh. 01; 1999 PCr.LJ 1087; 1997 SCMR 449; 2011 SCMR 820 and 2006 PCr.LJ SC 1002 rel.

Khizar Hayat Khazana for Appellant.

Rab Nawaz Khan, A.A.G. for the State.

Altaf Khan for the Complainant.

2021 M L D 1113

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

HASHIM ALI---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous No.82-A of 2020, decided on 21st February, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss.324 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S.15---Attempt to commit qatl-i-amd and common intention---Bail, grant of---Further inquiry---Scope---Accused was alleged to have inflicted knife blows to the complainant and his son---Record revealed that the accused was arrested on the next day of occurrence with the knife was still in the folds of his trouser, which was bloodstained---Such fact made the case of prosecution as one of further inquiry, as the accused persons normally tried to get rid of the crime weapon as soon as possible---Injuries found on the body of complainant were skin deep, while the injuries on the body of his son were shown to be exposing bone, however, the nature of wounds was not mentioned---High Court observed that keeping in view the injuries mentioned in both the medico legal certificates, the question as to whether S.324, P.P.C., was applicable or not, was a question of further inquiry---Petition for grant of bail was allowed, in circumstances.

Manzoor v. The State PLD 1972 SC 81 and 1996 SCMR 1845 ref.

Amir v. The State PLD 1972 SC 277 rel.

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

----S.497---Bail---Principle---Scope---High Court observed that curtailment of liberty of a person is a serious step in law, therefore, the judges should apply judicial mind with deep thought for reaching at a fair and proper conclusion albiet tentatively---Such exercise should not be carried out in vacuum or in a flimsy or casual manner as that would defeat the ends of justice because if the accused charged, is ultimately acquitted at the trial then no reparation or compensation can be awarded to him for the long incarceration, as the provisions of Criminal Procedure Code and the scheme of law on the subject does not provide for such arrangements to repair the loss caused to an accused person detained in jail without just cause and reasonable grounds.

2016 SCMR 18 ref.

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

----S.497---Bail---Accused in custody of sureties---Scope---Bail does not mean acquittal of accused but only change of custody form Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced.

1996 SCMR 1845 ref.

Dildar Khan for Petitioner.

Sardar Muhammad Asif, A.A.G. for the State.

Nemo. for the Complainant despite service.

2021 M L D 1219

[Peshawar]

Before Muhammad Naeem Anwar, J

SARFARAZ and 6 others---Petitioners

Versus

ABDUL GHAFOOR and 3 others---Respondents

Civil Revision No.1129-P of 2010, decided on 18th November, 2020.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Transfer of Property Act (IV of 1882), S.54---Suit for declaration and injunction---Sale---Proof---Concurrent findings of facts by two Courts below---Petitioners-plaintiffs claimed to be owners in possession of suit land on the basis of sale in favour of their predecessors-in-interest---Petitioners-plaintiffs also assailed cancellation of mutations entered in their favour---Trial Court as well as Lower Appellate Court concurrently dismissed suit and appeal filed by petitioners-plaintiffs---Validity---Parties to alleged bargain had departed to eternal life and were no more in the world, during their life time, neither petitioners-plaintiffs nor their predecessors claimed ownership of property---Deceased parties did not enter and attest any mutation as a result of any bargain or sale nor reduced it in black and white---No witness was on record in whose presence sale consideration was paid either to respondents-defendants or their predecessor---Sale as alleged by petitioners-plaintiffs was not a sale in the eyes of law---Concurrent findings of facts could only be interfered with when petitioners-plaintiffs would succeeded to show some misapplication of law or misreading or non-reading of evidence on the part of Courts below---High Court declined to interfere in concurrent findings of facts as there was no such flaw or misapplication of law pointed out in judgments and decrees passed by two Courts below---Revision was dismissed, in circumstances.

Ali Muhammad v. Chief Settlement and Rehabilitation Commissioner 1984 SCMR 94; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Messrs Essa Engineering Company (Pvt.) Ltd. and another v. Pakistan Telecommunication Company Limited and another 2014 SCMR 922; Combined Investment (Pvt.) Ltd. v. Wali Bhahi and others PLD 2016 SC 730; Dilawar Shah and others v. Janat Gul through legal heirs PLD 2004 SC 59; Tehmas and 16 others v. Dawar Khan PLD 1990 SC 629; Abdul Matten and others v. Mst Mustakhia 2006 SCMR 50 and Mst. Zaitoon Begum's case 2014 SCMR 1469 rel.

Wali Khan Afridi for Petitioner.

Muhammad Fahim Wali for Respondents.

2021 M L D 1238

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

MURAD ALI----Appellant

Versus

The STATE through Additional Advocate General and another----Respondents

Criminal Appeal No.17-M of 2020, decided on 7th October, 2020.

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

----S.9(b)---Possession of Narcotics---Appreciation of evidence---Prosecution case was that 106 grams of heroin was recovered from the possession of the accused---Record revealed that when charge was framed the accused did not plead guilty thereto---Accused had contested the allegations of the prosecution and had claimed himself to be innocent---Statements of four prosecution witnesses had been recorded on different dates thereafter---Thumb impression of the accused had been shown obtained on a preprinted form, wherein certain blank spaces had been filled with black ink---Second charge was framed and also on preprinted form wherein blank spaces had just been filled with black ink---Accused was shown to have pleaded his guilt to that charge by affixing his thumb impression---Statement of the accused had also been shown recorded on a preprinted form in the above-mentioned manner, it indicated a different date---Record in the trial had been transferred to the Trial Court wherein notice had been issued to accused for the following date---On said date all the above-mentioned proceedings had been shown conducted, but in the absence of counsel for the accused---Accused had already engaged a counsel in the trial and was being represented through his counsel, but the day he had been shown to have pleaded his guilt, all the proceedings had been conducted in absence of his counsel---Once the accused had been charge-sheeted, wherein he had pleaded innocence and claimed trial, then how was a second charge framed in the case---Such a procedure adopted by the trial court was totally alien to the law---No occasion was available for the Trial Court to have framed a second charge and that also in the said manner---Conviction recorded in the case had not been made according to law nor was the sentence justified on the basis of such a conviction---Appeal was allowed by setting aside conviction and sentence awarded by the Trial Court and matter was remanded to the Trial Court for an afresh decision.

Habib-ur Rehman v. The State 1997 PCr.LJ 1930 rel.

Farooq Khan for Petitioner.

Umar Sadiq, State Counsel for Respondent.

2021 M L D 1253

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

DORAJ and 3 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.247-A of 2020, decided on 20th April, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon and common object---Bail, refusal of---Scope---Complainant alleged that he along with his cousin was returning home when five accused persons, who were duly armed, waylaid them and two accused persons fired at his cousin while the other three assisted them---One of the main accused persons had prayed for grant of bail---High Court to his extent observed that he was directly charged for making effective firing upon the deceased; that the occurrence was witnessed by the complainant; that the medical report as well as recovery from the spot strengthened the prosecution version and that he was prima facie connected with the commission of offence which entailed capital punishment and his case fell within the prohibitory clause of section 497, Cr.P.C.---Petition for grant of bail to the extent of said accused was dismissed.

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

----S.497---Penal Code (XLV of 1860), Ss. 302, 311, 148 & 149---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, rioting, armed with deadly weapon and common intention---Bail, grant of---Scope---Complainant had alleged that he along with his cousin was returning home when five accused persons, who were duly armed, waylaid them and two accused persons fired at his cousin while the other three assisted them---High Court to the extent of accused persons who were alleged to have assisted the main accused observed that no overt act was attributed to them by the complainant and that the allegation of aiding the main accused needed further probe---One of the said accused persons was additionally charged for committing murder of his wife but he was only charged on the basis of suspicion and legal heirs of his wife had no objection upon his release on bail---Petition for grant of bail to the extent of said co-accused and the mentioned accused charged with murder of wife was allowed.

Muhammad Shafi and others v. The State 2016 SCMR 1593 rel.

Shad Muhammad Khan for Petitioner.

Sardar Muhammad Asif, AAG for the State.

Abdul Saboor Khan for the Complainant.

2021 M L D 1271

[Peshawar]

Before Syed Muhammad Attique Shah and Syed Arshad Ali, JJ

Khawaja MUHAMMAD BILAL SETHI and 95 others---Petitioners

Versus

EDWARDS COLLEGE through Principal and others---Respondents

Writ Petition No.1446-P of 2020, decided on 20th January, 2021.

(a) Constitution of Pakistan ---

----Art.199---Educational institution---Increase in fee---Policy matter---Constitutional jurisdiction of High Court---Scope---Petitioners were students of BS English at the College/respondents---Contention of the petitioners was that respondents all of sudden had enhanced their fee as against mentioned/introduced in their prospectus ---Validity---Record revealed that an increase of Rs. 11,000/- per semester was approved by the Finance Committee of the College in its meeting held for the said purpose, which was also approved by the Board of Governors under the chairmanship of Provincial Governor in the meeting duly held---Prospectus of the College specifically provided that the College reserved the right to enhance, any time, the fee structure, time frame and policies qua the fee---Operational budget of the College was entirely based upon the students' fee; which was the only source for maintaining the affairs of College---Courts were slow while interfering in the policy matters qua admissions, endowment funds and tuition fee etc. under the policy given by the Government or approved/adopted by the educational institution itself and interference in the same by the Courts was only amenable in extra-ordinary and exceptional circumstances, which were not available in the present case---Constitutional petition was dismissed, in circumstances.

Secretary Economic Affairs Division, Islamabad v. Anwarul Haq Ahmed 2013 SCMR 1687 and Dr. Salman Kazmi v. Secretary Cabinet Division PLD 2014 Lah. 451 ref.

(b) Constitution of Pakistan---

----Art.25---Educational institution---Increase in fee of all faculties---No discrimination---Petitioners (students of BS English at the College/respondents) invoked constitutional jurisdiction of High Court contending that respondents all of sudden had enhanced the fee of their BS Program only---Record also showed that fees of all faculties of the College were enhanced---Constitutional petition dismissed.

(c) Constitution of Pakistan---

----Art.199---Educational institution---Increase in fees---Constitutional jurisdiction of High Court---Scope---Estoppel---Petitioners were students of BS English at the College/respondents--- Petitioners contended that respondents all of sudden had enhanced their fee as against mentioned/introduced in their prospectus---Held, that impugned fee was being paid by the petitioners right from the date of its enhancement---Thus the petitioners were estopped by their own conduct to challenge the validity of the fee through constitutional petition---Constitutional petition dismissed.

Abdul Latif Afridi and Javed Iqbal Gulbela for Petitioners.

Ali Gohar Durrani for Respondents.

2021 M L D 1325

[Peshawar]

Before Ijaz Anwar and Arshad Ali, JJ

KHYBER PAKHTUNKHWA TEXTILE MILLS ASSOCIATION---Petitioner

Versus

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

Writ Petition No.4557-P of 2020, decided on 17th February, 2021.

Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss.3, 6 & 13---Adjudication by Regulatory Authorities---Scope---Petitioners sought restraining Gas Utility Companies from issuing an GIDC installment bills to petitioners, before adjudication on the matter before Oil and Gas Regulatory Authority ("OGRA") was complete and furthermore, sought direction to Federal Government to appoint members to the vacant position of OGRA---Held, that since during pendency of the present petition, Federal Cabinet approved appointment of new Chairman OGRA, and thus OGRA which became functional as a result of such appointment, thus petitioners could pursue the matter before OGRA---Constitutional petitions were disposed of, accordingly.

Barrister Ibrahim Khan Afridi for Petitioner.

Qazi Babar Irshad, D.A.G. for the Federation.

Asif Ali Shah for OGRA.

Asad Jan for SNGPL.

2021 M L D 1330

[Peshawar]

Before Ijaz Anwar and Muhammad Nasir Mehfooz, JJ

SHEREEN ZADA---Petitioner

Versus

DIRECTOR FIA, ZONAL and 2 others---Respondents

Writ Petition No.376 of 2021, decided on 4th February, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Protection from harassment---Scope---Grievance of the petitioner was that in the wake of a fabricated inquiry (by FIA) he was issued call up notice(s) to harass and arrest him---Contention of petitioner was that impugned notices were purposely communicated late with the only aim to harass and humiliate him---Validity---Court was not supposed to interfere with the process of inquiry wherein the main aim was to dig out the truth and to fix the responsibility upon the delinquent and thereafter to register a case, if made out---Constitutional petition was disposed of with direction to the petitioner to associate with the inquiry with direction to the FIA authorities not to keep the inquiry pending rather to proceed with it expeditiously.

Mumtaz Ahmad for Petitioner.

Qazi Babar Irshad, D.A.G. with Danyal Tajik, Inspector Cyber Crime Wing, FIA for Respondents.

2021 M L D 1410

[Peshawar]

Before Muhammad Naeem Anwar, J

MUSHTAQ AHMAD---Petitioner

Versus

FAYAZ and 2 others---Respondents

Writ Petition No.5052-P of 2019, decided on 22nd March, 2021.

(a) Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Relationship of landlord and tenant---Scope---Petitioner/landlord assailed the concurrent dismissal of his ejectment petition---Validity---Landlord had not mentioned in his petition as to when the possession of disputed house was handed over to the respondent as a tenant---Landlord had admitted in his cross-examination that no tenancy agreement was signed between him and tenant, however, stated that it might be with his father---Tenant in his statement had produced a deed whereby it was alleged by him that his father had purchased the disputed house---Landlord had to prove the existence of relationship of tenant and landlord through cogent, reliable and convincing evidence---Not a single evidence was available on record which could show that the landlord had ever received monthly rent from the tenant---Payment of rent was a sine qua non for the relationship of landlord and tenant---Constitutional petition of landlord was dismissed.

Fareed ud Din Masood v. Additional District Judge, Bahawalpur 2019 SCMR 842 ref.

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

----Art.129(g)---Withholding best evidence---Scope---If an evidence of vital importance is not produced or is withheld, the court in terms of Art.129(g), Qanun-e-Shahadat, 1984 would draw an adverse inference that had such evidence been produced by the party it would have gone against him.

Mst. Hilal Murad v. Haji Amir Zaman and 7 others 2017 YLR Note 118 ref.

Sughran Bibi v. Mst. Aziz Begum 1996 SCMR 137 rel.

(c) Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Relationship of landlord and tenant---Scope---When issue regarding the existence of relationship of tenant and landlord is framed, the landlord is required to prove the same and in case of failure, his application is to be turned down.

(d) Administration of justice---

----Party can succeed on the strength of his own evidence and he cannot seek benefits from the weakness of the other.

2005 SCJ 474 and 1980 CLC 2056 ref.

(e) Pleadings---

----Party can only succeed according to what was alleged and proved.

2005 SCJ 474 and 1980 CLC 2056 ref.

(f) Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Relationship of landlord and tenant---Scope---Payment of rent is a sine qua non for the relationship of landlord and tenant.

Nasira Afridi v. Muhammad Akbar 2015 MLD 171 rel.

Fazal Karim for Petitioner.

Mian Hamayun Ahmad Kakakhel for Respondents.

2021 M L D 1452

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

HOSPITAL DIRECTOR AYUB TEACHING HOSPITAL,MTI

ABBOTTABAD---Appellant

Versus

MUJAHID AHMAD and 3 others---Respondents

Criminal Appeal No.375-A of 2019, decided on 30th April, 2020.

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

----S.409---Prevention of Corruption Act (II of 1947), S.5---Criminal breach of trust by public servant, or by banker, merchant or banker, criminal misconduct---Appeal against acquittal---Prosecution case was that embezzlement was committed in collection of OPD (Out door Patient Department), admission fees---Admittedly, accused persons were not posted in Accounts Branch rather one of them was employed as Computer Programmer on contract basis while the other two were appointed as IT Assistants on daily wages---Prosecution had failed to prove that the accused persons were responsible for collection and deposit of said fees, rather their duties were computer related and were not related to accounts---No official from the Accounts Branch was made as an accused in the case---Investigation had even failed to prove the appointment of accused persons in the department in any capacity---No illegality or irregularity could be pointed out in the impugned judgment---Appeal was dismissed, in circumstances.

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

----S.417---Appeal against acquittal---Accused, after acquittal, earns double innocence. Zaheer Sadiq v. Muhammad Ijaz and others 2017 SCMR 2007; Mst. Anwar Begum v. Akhtar Hussain alias Kaka and others 2017 SCMR 1710; Muhammad Zaman v. The State 2014 SCMR 749; Muhammad Tasweer v. Hafiz Zulkarnain PLD 2009 SC 53; Shahid Abbas v. Shahbaz and others 2009 SCMR 237 and Muhammad Shafi v. Muhammad Raza and others 2008 SCMR 329 ref.

2021 M L D 1482

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

BILAL AHMAD---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.621-M of 2020, decided on 20th November, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S.9---Transportation of narcotics---Bail, refusal of---Scope---Accused was allegedly apprehended while transporting 6000 grams of charas---Contention of accused was that words "or" had been used in clauses (a), (b) and (c) of S.9 of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, which suggested that the sentences of imprisonment were interchangeable---Held; cases where the quantity of recovered narcotic substance exceeded the limit of one kilogram, the term of imprisonment provided therein was fourteen years along with fine which could extend to one million and not less than five lacs---Offence, therefore, fell within the prohibitory clause of S.497, Cr.P.C.----Accused was not found entitled to the concession of bail on tentative appraisal of the evidence---Petition for grant of bail was dismissed, in circumstances.

Noor Alam Khan and Fawad Afzal for Petitioner.

Sohail Sultan, Assistant Advocate General for the State.

2021 M L D 1503

[Peshawar]

Before Qaiser Rashid Khan, CJ

JAWAD KHAN alias SOHIAL---Petitioner

Versus

The STATE---Complainant

Bail Application No.2967-P of 2020, decided on 8th February, 2021.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 353, 427, 148 & 149---Explosive Substance Act (VI of 1908), Ss.4 & 5---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to amount of fifty rupees, rioting armed with deadly weapons, unlawful assembly, 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 weapon---Bail, refused of---Accused was charged that he and co-accused forcibly entered the PAF Camp and caused huge casualties and damaged to the property---Accused-petitioner had been introduced by the co-accused in her statement recorded under S.164, Cr.P.C.---Apart from above, the accused-petitioner instead of surrendering himself preferred to stay in abscondance for over four and a half years and surrendered only after the acquittal of his co-accused---Taking a tentative assessment of the available record, the accused-petitioner was prima facie connected with the commission of the offence which was both serious and heinous and also fell within the prohibitory clause of S.497, Cr.P.C.---Bail petition was dismissed, accordingly.

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

----S.497---Bail---Tentative assessment---Scope---Observations recorded in bail order were purely tentative in nature and would not prejudice the proceedings before the Trial Court where the case be decided on its own merits after recording evidence.

Tafseel Khan Afridi for Petitioner.

Muhammad Sohail, A.A.G for the State.

Jawad Ali, Assistant Attorney General for the Complainant.

2021 M L D 1532

[Peshawar]

Before Syed Muhammad Attique Shah and Syed Arshad Ali, JJ

NASIR ALI---Petitioner

Versus

Mst. ZAKIA---Respondent

Criminal Revision No.160-P of 2019, decided on 9th April, 2021.

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

----Ss.302(b) & 109---Criminal Procedure Code (V of 1898), S.265-D---Qatl-i-amd, abetment---Discharge of accused by the Trial Court before framing of charge---Scope---Accused, a lady, was charged for committing murder of brother of the complainant---Trial Court discharged the accused without framing of charge against her---She was only nominated for abetment in the commission of offence---Scope---Record showed that initially no one was charged for commission of offence in the FIR, however, subsequently, the complainant/petitioner nominated the accused/respondent along with co-accused in his supplementary statement recorded under S.164, Cr.P.C, after three days of initial report---Available record reflected that no source of satisfaction qua involvement of accused/respondent in the commission of the offence had been disclosed by the petitioner/complainant---Even no independent person had been examined by Investigating Agency, in whose presence the entire conspiracy qua murder of deceased/husband of accused/respondent was planned by respondent with the co-accused (brother of deceased)---Co-accused had already been murdered by unknown accused and an FIR to that extant had also been registered in the concerned Police Station---No direct or circumstantial evidence was available against present accused/respondent, which could connect her with the commission of offence---One friend of co-accused was examined during investigation under S.161, Cr.P.C, who disclosed that his pistol was demanded by co-accused, which he, as per his instructions, handed over to the accused/respondent---Mere handing over of pistol to the accused/respondent was not sufficient to link her with the commission of offence, particularly when the said pistol had not been recovered by the Investigation Officer during the course of investigation---Circumstances established that the conclusion so drawn by the Trial Court was in accordance with the spirit of S.265-D, Cr.P.C.---Trial Court had rightly discharged the accused from the groundless accusations, which were not sufficient to hold the accused guilty after carrying out a long and futile exercise of trial---Criminal revision petition was dismissed.

The State v. Shukoor Jan and another 2017 MLD 916 rel.

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

----S.265-D---Powers to examine record before framing of charge---Framing of charge is not an automatic process and the Trial Court is not supposed to act like a post office just to stamp on the ipse-dixit of police---If the material on record is not sufficient, then, the court may discharge the accused under S.265-D, Cr.P.C.

M. Sabir Khan (Katlang) for Petitioner.

Shaabina Noor and Rab Nawaz Khan, A.A.G. for Respondent.

2021 M L D 1627

[Peshawar]

Before Rooh-ul-Amin Khan and Muhammad Naeem Anwar, JJ

Malik TAJAMAL HAYAT KHAN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA, through Secretary Home and 4 others---Respondents

Writ Petition No.4799-P of 2020, decided on 17th February, 2021.

(a) Khyber Pakhtunkhwa Prohibition of Interest on Private Loans Act (XVII of 2016)---

----S.6---Constitution of Pakistan, Art.199---Constitutional petition---Alternate and efficacious remedy---Petitioner contended that his private compliant under S.200, Cr.P.C. against respondents under S.6 of Khyber Pakhtunkhwa Prohibition of Interest on Private Loans Act, 2016, was not sufficient to provide relief to petitioner, as he had been defrauded by respondents, so through joint investigation team, responsibility could be fixed in accordance with earlier decision of High Court---Validity---For infringement of statutory rights, petitioner was before civil Court under Ss.42 & 53 of Specific Relief Act, 1877; under Ss. 25, 73 & 76 under Trade Marks Act, 1940 before Special Court; under S.6 of Khyber Pakhtunkhwa Prohibition of Interest on Private Loans Act, 2016; and offences under the provisions of Penal Code, 1860, such as breach of trust, extortion, cheating of personation, fraud, blackmailing, nuisance and harassment---High Court declined to interfere in the matter as petitioner had already approached appropriate forums for redressal of his grievance---Constitutional petition was dismissed, in circumstances.

Sajid Ali v. DPO Mardan (Writ Petition No.2173-P/2016) distinguished.

Commissioner of Income Tax, Companies-II and another v. Hamdard Dawakhana (Waqf) Karachi PLD 1992 SC 847 and Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Intricate question of law and facts---Scope---High Court while exercising Constitutional jurisdiction under Art.199 of the Constitution cannot resolve intricate question of law and fact.

Miss Asma Ghafoor v. Principal, King Edward Medical College, Lahore and 3 others 2011 SCMR 1131; Luqman Sajid v. Returning Officer and 5 others 2018 YLR 2319; Mst. Robina and others v. District Police Officer and others 2018 YLR 665; Ali Nawaz Shahwani and brothers through Proprietor and another v. Government of Balochistan through Secretary C&W Department Quetta and 2 others PLD 2020 Quetta 21; Muhammad Soomar v. Province of Sindh through Secretary Irrigation Department, Sindh and 7 others 2020 YLR 1044; Nadeem Aftab Sindhu v. F.O.P through Secretary of Law, Justice and Parliamentary Affairs and others PLD 2013 Lah. 405; A.M Construction Company (Pvt.) Limited through Chief Executive Officer and another v. The National Highway Authority through Chairman and 2 others 2015 CLD 130; Muhammad Anwar Khan and another v. Khalid Mahmood and others 2015 MLD 1090 and Akbar Ali v. District Police Officer and 5 others 2013 YLR 222 rel.

Muhammad Muazzam Butt for Petitioner.

2021 M L D 1676

[Peshawar]

Before Muhammad Naeem Anwar, J

UMAR NAZIR---Petitioner

Versus

MUKARAM KHAN---Respondent

C.O.C No.679-P with C.O.C. No.852-P of 2018 in C.O.C. No.33-P of 2013 in C.R. No.683-P of 2003, decided on 1st December, 2020.

Contempt of Court Act (IV of 2003)---

----Ss.3 & 4---Civil Procedure Code (V of 1908), O.XXI, R.32---Contempt of Court---Execution of decree---Applicant/decree-holder initiated contempt proceedings against respondents to execute his decree---Validity---Neither in application any specification was given with reference to any particular construction nor the same as given in plaint, in which decree was passed---Decree passed by Lower Appellate Court and maintained by High Court could be executed under O.XXI, R.32 C.P.C.---Order of High Court was implemented / executed on 13-10-2015, when report was submitted by Revenue authorities, therefore, no further application could be submitted to Deputy Commissioner---High Court directed Deputy Commissioner and Station House Officer of Police Station not to proceed further on application filed by applicant/decree-holder, as no further process could be initiated / launched against respondent--- High Court restrained applicant / decree-holder from initiating frivolous applications as both parties could seek proper redressal under O.XXI, R.32, C.P.C.---Application for contempt of court was dismissed, in circumstances.

Javed A. Khan for Petitioner.

Muhammad Asif for Respondent.

2021 M L D 1694

[Peshawar]

Before Muhammad Naeem Anwar, J

KAMRAN SHER and another---Petitioners

Versus

Mst. SADIA and 2 others---Respondents

Writ Petition No.1418-P of 2020, decided on 4th December, 2020.

Family Courts Act (XXXV of 1964)---

----S.5---Maintenance allowance to wife---Principle---Non-payment of dower---Effect---Respondent-plaintiff (wife) filed suit for recovery of dower amount, maintenance allowance, gold jewelry, dowry articles and share in house, which suit was partially decreed in her favour by Family Court as well as Lower Appellate Court---Validity---When a woman refuses to surrender herself to her husband, on account of dower (that is, on account of its not having been paid to her), her maintenance does not drop but is incumbent upon husband, although she is not yet within his custody, since her refusal is only in pursuance of her right and consequently the objection of matrimonial custody originates with the husband---Respondent-wife opted not to live with petitioner-husband on the ground of forceful ouster and non-payment of dower in shape of cash amount and gold---Both reliefs sought by respondent-wife were refused by Family Court as the same were not proved---Factum of fixation of dower had been remained controversial since solemnization of Nikkah till the decision of Family Court, which at the end was fixed as Rs.2000/---As such the same could not be considered a failure or refusal on the part of petitioner-husband either it was controversial or not admitted by him---Leaving the house of petitioner and living apart from him was not justified at any cost when respondent-wife failed to prove ill treatment or physical torture on part of her husband i.e. petitioner---High Court reversed findings of two Courts below and set aside judgment and decree for payment of maintenance allowance on the ground of non-payment of dower---Constitutional petition was allowed accordingly.

Rawil Khan for Petitioners.

Mukhtar Ahmad Maneri for Respondent No.1.

2021 M L D 1709

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

SHER WALI---Petitioner

Versus

The STATE and 5 others---Respondents

Criminal Miscellaneous Bail Petition No.532-B of 2020, decided on 26th November, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 337-A(i), 337-F(i)(ii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, damiyah, badi'ah, rioting, armed with deadly weapon, common object---Bail, grant of---Scope---Complainant and another got injured whereas another lost his life, but as many as eight accused were charged for the occurrence where out of them three were attributed effective role---Principal accused, who was charged for the murder, was acquitted along with other co-accused---Trial Court had yet to determine whether the accused persons were vicariously liable for the murder of the deceased---Five out of eight accused persons were acquitted of the charges and the prosecution evidence was disbelieved in totality regarding the presence of complainant on the spot and the mode and manner of the occurrence, so the benefit from acquittal of co-accused could be extended to the accused even at bail stage---Petitions for grant of bail were allowed, in circumstances.

Muhammad Faisal v. The State and another 2020 SCMR 971 ref.

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

----S.497---Bail---Absconsion---Scope---Absconsion alone is not sufficient to disentitle an accused to the concession of bail if he otherwise deserves the same on merit.

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

----S.497---Bail---Tentative assessment---Scope---Tentative assessment of material is to be made at bail stage and deeper appreciation is not warranted---Bail application cannot be heard and decided in vacuum rather the Court was to consider the available record/material for the purpose.

Pir Liaqat Ali Shah for Petitioner.

Farooq Khan Sokarri for Respondent.

Qudratullah Khan Gandapur, Assistant Advocate-General for the State.

2021 M L D 1857

[Peshawar]

Before Qaiser Rashid Khan, CJ

ATLAS KHAN---Petitioner

Versus

The STATE---Respondent

Bail Petition No.973-P of 2021, decided on 14th June, 2021.

Criminal Procedure Code (V of 1898)---

----S.497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S.11(b)---Possession of narcotics---Bail, refusal of---Scope---Accused sought bail in a case lodged under S. 11(b) of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019---Accused was alleged to have been found in possession of 520 grams of Amphetamine/Ice---Amphetamine/Ice was the latest and most lethal among the contrabands, which as against the other narcotics like 'charas' was not possessed in maunds and kilograms but in small quantity given the fact that it was by far the most expensive contraband---520 grams of Amphetamine/Ice recovered from the direct and immediate possession of the accused was a huge quantity in respect of which the report of Forensic Laboratory was also in the affirmative---Accused was prima facie connected with the commission of the offence attracting the prohibited limb of S.497, Cr.P.C---Bail petition was dismissed, in circumstances.

Miss Shabina Noor for Petitioner.

Syed Sikandar Hayat Shah, A.A.G for the State.

2021 M L D 1951

[Peshawar]

Before, Lal Jan Khattak and Muhammad Naeem Anwar, JJ

Syed JAWAD HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1028-P of 2020, decided on 3rd June, 2021.

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

----S.9(c)---Possession of 36 kgs of charas---Appreciation of evidence---Benefit of doubt---Prosecution case was that 30 packets of charas each of 1200/1200 grams, lying in secret cavity made beneath the driver's seat of the vehicle were found, which was being driven by the accused---Record showed that when parcel wherein the Seizing Officer had kept the 30 packets after separating therefrom the representative samples, was opened before the Trial Court, it turned out to have only 28 packets instead of 30 as alleged in the FIR---Representative samples for chemical analysis were taken only from 20 packets and not from 28---Said aspect of the case was so startling that same had crumbled the prosecution case to dust---Appeal against conviction was allowed, in circumstances.

Noor Alam Khan and Ms. Shabeena Noor for Appellant.

Nisar Ahmad Khan, A.A.G. for the State.

2021 M L D 1972

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

Mst. MUKHTAJ BIBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.250-B of 2021, decided on 30th June, 2021.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 404---Qatl-i-amd, rioting, armed with deadly weapon, common object, dishonest misappropriation of property possessed by deceased person at the time of his death---Bail, grant of---Further Enquiry---Prosecution case was that the deceased left her house on the pretext of an inquiry about the health of an ill person and when she did not turn up the complainant started searching her in the surrounding area and found her dead body---Complainant had initially charged four persons but later on he recorded his statement under S.164, Cr.P.C., before the Judicial Magistrate and introduced new facts that it was the accused and another who handed over the deceased to the accused persons---Subsequent recorded statement of the complainant had no basis and he could not explain the source of his satisfaction and had even failed to produce an independent witness who had seen the deceased while riding on motorcycle with the accused and another---Investigating Officer had allegedly recovered a mobile phone and purse belonging to deceased from the possession of accused but the prosecution had failed to bring on record any connecting evidence to establish the ownership of the deceased over the recovered articles---Accused had succeeded in making out a case as one of further inquiry---Bail petition was allowed, in circumstances.

Iftikhar Durrani for Petitioner.

Muhammad Qadir Khattak for the Complainant.

Arshad Hussain Yousafzai, Asstt: A.G. for the State.

2021 M L D 1997

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

ROHAID ALI SHAH---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous Bail Application No.288-B of 2021, decided on 1st July, 2021.

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

----S.497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, armed with deadly weapon---Bail, refusal of---Prompt FIR---Counter-version---Scope---Accused along with others was alleged to have murdered three persons and injured two---Matter was promptly reported to the local police---Investigating Officer had visited the spot and had recovered blood-stained earth from the place of incident along with empties---Accused had referred to his counter-version according to which he along with his brother had received firearm injuries, charging the complainant side for commission of offence---Seat of injuries on the body of accused did not form the sole basis for release on bail, as it was yet to be determined as to whether the injuries were the result of firing by the complainant party or those were self-inflicted---Petition for grant of bail to accused was dismissed, in conviction.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, armed with deadly weapon---Bail, refusal of---Release of co-accused on medical grounds---Scope---Accused along with others was alleged to have murdered three persons and injured two others---Contention of accused was that one of the accused had already been released on bail---Held, that perusal of the bail granting order revealed that the bail was allowed keeping in view the precarious condition of the accused and the severity of his illness and on merit no opinion was tendered to benefit the accused---Petition for grant of bail to accused was dismissed, in circumstances.

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

----S.497---Bail---Tentative assessment---Scope---Tentative assessment is to be made while hearing bail application and deeper appreciation is not warranted.

Farooq Khan Sokari and Irfan Prizada for Petitioners.

Arshad Hussain Yousafzai, A.A.G for the State.

Noor Zada Khan Ahmadzai for the Complainant.

2021 M L D 2035

[Peshawar]

Before Ijaz Anwar and Muhammad Naeem Anwar, JJ

TARIQ MEHMOOD ARYANI---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others---Respondents

Writ Petition No.2471-P of 2020, decided on 21st January, 2021.

Khyber Pakhtunkhwa Zakat and Ushr Act (XVII of 2011)---

----Ss. 12, 14 & 19---Necessary parties, non-impleading of---Petitioner was Chairman District Zakat and Ushr Committee and he was aggrieved of notification removing him from the seat--- Validity--- Khyber Pakhtunkhwa Zakat and Ushr Council while exercising powers under S.19(3)(e) & (f) of Khyber Pakhtunkhwa Zakat and Ushr Act, 2011, passed resolution for removal of petitioner from his position as that of Chairman---Petitioner did not array the Council which was constituted under S.12 of Khyber Pakhtunkhwa Zakat and Ushr Act, 2011, nor any act of the Council was challenged before High Court--- Remedy of review was provided under S.19(18) of Khyber Pakhtunkhwa Zakat and Ushr Act, 2011, that when any person was aggrieved from decision of the Council, he could file application for review of the order but no such review was filed by petitioner---When a remedy by way of review was available to petitioner, he could better seek the remedy--- High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Muhammad Abbasi v. SHO Barakahu and 7 others PLD 2010 SC 969 and Secretary to the Government of Punjab v. Ghulam Nabi PLD 2001 SC 415 rel.

Taimur Haider Khan for Petitioner.

Umar Farooq, A.A.G along with Hafeez-ur-Rehman, Section Officer, Zakat and Ushr Department.

2021 M L D 2069

[Peshawar (D.I. Khan Bench)]

Before Ijaz Anwar and Muhammad Naeem Anwar, JJ

The STATE through Advocate General, Khyber Pakhtunkhwa, Peshawar---Petitioner

Versus

NOROZ KHAN alias ABU BAKAR---Respondent

Criminal Appeal No.109-D of 2019, decided on 9th March, 2021.

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

----Ss. 302(b), 324, 458, 337-D, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, lurking house trespass or house-breaking by night after preparation for hurt or assault or wrongful restraint, jaifah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Contradictions in the statement of witnesses---Scope---Prosecution case was that the accused party while armed with deadly weapons assaulted on complainant party, made firing, due to which two were hit and died while the complainant received injuries---Presence of the complainant on the spot at the relevant time, keeping in view the stamp of injury on his person, was, no doubt, established, however, testimony of complainant as to the identification of the accused on the spot at the relevant time was not above board for reason that complainant appeared before the Trial Court and stated that 14/15 persons entered into his house while in his report he had stated that 15/20 persons had entered into his house---Likewise, in his cross examination, the complainant stated that three accused were on front and in the same breath he stated that the accused was not previously known to him---Question arose when accused was not known to complainant then how he identified him, which made his testimony equivocal---Statement of complainant was also contradictory to the statement of eyewitness because in her cross examination she stated that the accused had muffled their faces while the complainant stated that none had muffled his face; similarly, the former stated in her cross examination that first the injured was taken to the hospital and after one hour the dead bodies of the deceased were taken to the hospital---Later in cross examination stated that he and his deceased brothers were put in the two vehicles on charpai---Complainant further stated that profuse blood was oozing from him and his deceased brothers, however, he could not say as to whether cots were stained with blood or not---Circumstances established that the prosecution had failed to prove its case against the accused, thus Trial Court had rightly acquitted the accused---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 302(b), 324, 458, 337-D, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, lurking house trespass or house-breaking by night after preparation for hurt or assault or wrongful restraint, jaifah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Statement of complainant was doubtful---Scope---Prosecution case was that the accused party while armed with deadly weapons assaulted on complainant party, made firing, due to which two were hit and died while the complainant received injuries---Record showed that the presence of the complainant on the spot at the time of occurrence was not doubted as he was having stamp of injuries on his person but confirmed presence by itself was not equivalent of truth---Complainant in his cross examination stated that after arrival at the hospital, first his report was recorded by the Incharge Reporting Centre and he was in senses---Said statement of complainant had been belied by the statement of Medical Officer---Medical Officer in cross-examination stated that the injured complainant was in serious condition and was unable to speak---When complainant was not able to talk, then how he lodged the report and named the accused in his report---Said piece of evidence was also making cracks in the prosecution story---Circumstances established that the prosecution had failed to prove its case against the accused, thus Trial Court had rightly acquitted the accused---Appeal against acquittal was dismissed, in circumstances.

Ishtiaq Hussain and another v. The State and others 2021 SCMR 159; Amin Ali and another v. The State 2011 SCMR 323; Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; Said Ahmad v. Zammured Hussain and 4 others 1981 SCMR 795; Muhammad Hayat and another v. The State 1996 SCMR 1411; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Amin Ali and another v. The State 2011 SCMR 323; Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 and Atta Ullah and 3 others v. The State 2016 YLR 2148 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---Any reasonable doubt arising out of the prosecution evidence pricking the judicial mind was sufficient for acquittal of the accused.

Tariq Parvez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----S.417---Appeal against acquittal---Presumption---Acquittal carried double presumption of innocence---Courts would be very slow in interfering with such an acquittal judgment, unless it was shown to be perverse, based in gross violation of law suffering from the errors of grave misreading or non-reading of the evidence.

Ghulam Sikandar and another v. Mamraiz Khan and others PLD 1985 SC 11; Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644; Zaheer-ud-Din v. The State 1993 SCMR 1628; Khan v. Sajjad and 2 others 2004 SCMR 215; Barkat Ali v. Shaukat Ali and others 2004 SCMR 249; Farhat Azeem v. Asmat Ullah and 6 others 2008 SCMR 1285; Haji Payo Khan v. Sher Baz and others 2009 SCMR 803 and Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 rel.

Adnan Ali, A.A.G. for Appellant.

2021 M L D 2093

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

MUDASSIR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.272-B of 2021, decided on 1st July, 2021.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, refusal of---Prompt FIR---Scope---Accused was alleged to have murdered the brother of complainant---Complainant had directly charged the accused in a promptly lodged FIR---Medical report, recovery of blood stained earth from the place of incident and blood stained garments had given further support to the complainant's version---Material pieces of evidence when taken in juxtaposition, a prima facie case was made out against the accused---Forensic Laboratory's report although showed that the empties recovered from the place of occurrence were fired from different weapons but the report prima facie did not entitle the accused to the concession of bail---Accused was connected with the commission of offence which fell within the prohibitory clause of S.497, Cr.P.C.---Petition for grant of bail was dismissed, in circumstances.

Gul Nawaz for Petitioner.

Complainant in Person.

Arshad Hussain Yousafzai, Assistant Advocate General for the State.

2021 M L D 60

[Balochistan]

Before Abdullah Baloch, J

MUHAMMAD ZEESHAN---Petitioner

Versus

The STATE---Respondent

Criminal Revision No.10 of 2019, decided on 19th March, 2020.

Penal Code (XLV of 1860)---

----Ss. 182, 211, 409, 380 & 454---False information with intent to cause public servant to use his lawful power to the injury of another person, false charge of offence made with intent to injure, criminal breach of trust by public servant, theft in dwelling house, lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment---Appreciation of evidence---Absence of mens rea---Effect---Complainant/police constable got lodged FIR that his official Kalashnikov was stolen from his house---Prosecution case was that the complainant had failed to deposit the Kalashnikov with the department; that he had embezzled the official Kalashnikov; that he got lodged a false FIR and that during investigation no signs of theft were observed---Prosecution case was based upon presumptions and assumptions---Complainant himself had reported to police station with regard to missing of official Kalashnikov from his house, thus, he discharged his liability and apparently no mens rea existed on this part---Petition was accepted, judgments passed by Magistrate and Sessions Judge were set aside and the complainant, was acquitted of the charge.

Rehmatullah Sodozai for Petitioner.

Wajahat Khan Ghaznavi, State Counsel.

2021 M L D 80

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

JANAN KHAN through Purchase on Installments Kaleemullah---Appellant

Versus

The STATE through One Battalion (Qaid) Pakistan Coastal Guard, Uthal and another---Respondents

Criminal Appeal No.63 of 2020, decided on 30th June, 2020.

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

----S. 32---Articles connected with narcotics---Non-appearance of owner of vehicle before Special Court---Effect---Appellant assailed order passed by Judge Special Court (CNS) whereby vehicle carrying narcotic was confiscated in favour of the State---Appellant pleaded that he was unaware about pendency of the case, therefore, he had not appeared before the Trial Court but vehicle was kept in detention during the trial for a period of one year---Impugned judgment revealed that the narcotic was recovered from the secret cavities of the vehicle---Documents produced by appellant were mere photocopies which could not be considered at appellate stage, when neither any judicial enquiry was conducted nor the same were proved through evidence---Appellant was advised to avail the remedies available to him under the provisions of relevant law before the Trial Court---Appeal was dismissed, in circumstances.

Talat Waheed Khan for Appellant.

Tahir Iqbal Khatak, Assistant Attorney General for the State.

2021 M L D 215

[Balochistan]

Before Rozi Khan Barrech, J

YAR MUHAMMAD and 4 others---Petitioners

Versus

MUHAMMAD ALI and 4 others---Respondents

Civil Revision No. 37 of 2014, decided on 27th December, 2019.

Civil Procedure Code (V of 1908)---

----S. 79---Constitution of Pakistan, Art. 174---Suits by or against Government---Suit involving Government land---Necessary party---Scope---Petitioners claimed ownership of 2500 to 3000 acres unsettled land---Validity---Suit property was unsettled land and was in the ownership of the Government---Neither the petitioners nor the respondents had produced any evidence to prove that they were actual owners of the disputed properties---Petitioners had arrayed the Member Board of Revenue and Tehsildar as defendants in their plaint but had not arrayed the Provincial Government through its Secretary as necessary party in the plaint---Suit in respect of the unsettled land in the absence of Government as the Provincial or Federal was not maintainable as contemplated under Art. 174 of the Constitution and S.79 of C.P.C.---Courts below had rightly dismissed the suit filed by petitioners---Revision petition was dismissed, in circumstances.

Mumtaz Hussain Baqiri for Petitioners.

2021 M L D 392

[Balochistan]

Before Abdullah Baloch, J

SULEMAN SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.72 of 2020, decided on 16th March, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Bail, grant of---Absconsion---Scope---Prosecution case was that the accused was present along with two co-accused persons, who fired and killed two persons---Accused was nominated in the FIR but no role of firing was attributed to him---FIR was also silent as to whether the accused was armed or not---Witnesses, in their statements under S.161, Cr.P.C., had although alleged that the accused was equipped with fire arm and had murdered the deceased persons but such role was not ascribed to the accused in the FIR---Bail could be granted if the accused had a good prima facie case for bail on merits and his absconsion would not come in the way while granting bail---Petition for grant of bail was allowed, in circumstances.

Mitho Pitafi v. The State 2009 SCMR 299 rel.

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

----Ss. 34 & 149---Common intention---Common object---Scope---Mere presence of an accused at the time of commission of crime is not enough to hold him responsible for commission of crime, unless the prosecution succeeds in establishing that the accused had also shared common intention or common object with his co-accomplices or helped or facilitated them in the crime.

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

----S.497---Penal Code (XLV of 1860), Ss. 302 & 34---Bail---Qatl-i-amd and common intention---No overt act ascribed to accused---Scope---Whenever no overt act was ascribed to accused, lenient view was required to be taken towards the accused for granting him the concession of bail.

Muhammad Khan alias Muhammad Bux v. The State 2015 PCr.LJ 69 and Muhammad Tanveer v. The State 2014 PCr.LJ 1096 ref.

Karam Khan Bazai for Applicant.

Mis Shumaila Iftikhar, State Counsel.

Muhammad Usman Yousafzai and Matiullah Kakar for the Complainant.

2021 M L D 408

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

ASADULLAH----Petitioner

Versus

The STATE and another----Respondents

Criminal Revision No.44 of 2018, decided on 29th June, 2019.

(a) Criminal trial---

----Objections raised by either party---Duty of Trial Court---Scope---Whenever an objection was being raised by either of the parties at the time of recording evidence, the Trial Court instead of deciding the same then and there reserved the objection to decide it at the time of final adjudication of the case---Trial Court was bound to decide the objection instantly, when it was raised by the party/parties and must not reserve or defer the same till final adjudication of the pending lis.

Hayatullah v. The State 2018 SCMR 2092 rel.

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

----S.324---Criminal Procedure Code (V of 1898), Ss.161 & 162---Qatl-i-amd---Supplementary statement of complainant---Value---Accused contended that supplementary statement of complainant could not be exhibited, but the Trial Court overruled the objection---Validity---Supplementary statement had got no sanctity in the eye of law---Value of supplementary statement or further statement was not more than a statement recorded under S.161, Cr.P.C.---In the present case, the Trial Court erred in law while exhibiting the supplementary statement purportedly made by complainant---Said supplementary statement of the complainant was nothing more than a statement recorded under S.161, Cr.P.C., which could neither be equated with First Information Report (FIR) nor could be construed as an extension thereof---Such statement could not be used for any purpose other than one provided in S.161, Cr.P.C.---Trial Court while exhibiting the supplementary statement of the complainant had committed an error, therefore, the objection raised by the accused was sustainable, which was wrongly overruled by the trial court---Criminal revision petition was accepted and the objection of the defence was sustained.

Anees-ur-Rehman and another v. The State PLD 2002 Lah. 10; Muhammad Saeed Mehdi v. The State PLD 2002 Lah. 124 and The State v. Abdul Khaliq and others PLD 2011 SC 554 ref.

Noor Mohammad's case 2008 SCMR 1556; Mohammad Irfan v. The State 2012 PCr.LJ 625 and Muhammad Safdar and others v. The State 2016 PCr.LJ 220 rel.

Shabir Ahmed Rajput and Muhammad Din for Petitioner.

Muhammad Younas Mengal, A.P.G. for Respondent/the State.

2021 M L D 420

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

NASEER AHMED----Petitioner

Versus

SUMEYYA and another----Respondents

Constitutional Petition No.1447 of 2019, decided on 27th August, 2020.

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

----S.5, Sched.---Suit for dissolution of marriage---Amendment in pleadings---Scope---Petitioner assailed order passed by Trial Court whereby an application of the respondent seeking amendment in her suit in the title, body and likewise in the prayer clause by seeking dissolution of marriage on the basis of khula instead of dissolution on the basis of cruelty was allowed---Validity---Family Court, by allowing the amendment, had not exceeded its jurisdiction and the order was passed in the best interest of both the parties to avoid another round of litigation between themselves---Trial Court had not committed any illegality or irregularity warranting interference by the High Court in its constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

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

----S.5, Sched.---Suit for dissolution of marriage---Procedure---Scope---Family Court is competent to regulate its own proceedings for expeditious disposal of matrimonial disputes as the Family Courts Act, 1964, does not make provisions for every conceivable eventuality or unforeseen circumstances.

Akhtar Ali Said Beha v. Mst. Naheed Bibi PLD 2003 Pesh. 630 ref.

None present for Petitioner.

None present for Respondent.

2021 M L D 520

[Balochistan]

Before Abdul Hameed Baloch and Muhammad Kamran Khan Mulakhail, JJ

TOBA SAEED through her Father---Petitioner

Versus

CHAIRMAN ADMISSION COMMITTEE BOLAN UNIVERSITY OF MEDICAL AND SCIENCES QUETTA, BALOCHISTAN and 3 others---Respondents

Review Petition 10 of 2020 in C.P. No.1437 of 2019, decided on 21st May, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Application for review of judgment---Facts not discussed earlier---Effect---Applicant sought review of judgment passed by High Court while dismissing his Constitutional petition---Validity---Review proceeding could not substitute hearing of appeal / revision--- Review could not be allowed on discovery of new facts if such material was available at the time of hearing petition / appeal / revision--- Scope of review was very limited and it could only be allowed when there was error apparent on the face of order / judgment--- Party could not be allowed to adjudicate the same facts which had already been decided---Applicant, in the present case, failed to point out any apparent error or mistake in order in question---Power of review only enabled to correct error alone and it could not equate with appeal nor it could be made basis for rehearing of the case---Application for review was dismissed, in circumstances.

Fakharyar v. Agriculture University Peshawar PLD 2016 Pesh. 266 and Haji Muhammad Naeem v. Sarajuddin PLD 2017 Bal. 65 ref.

Abdul Hakeem v. Khalid Wazir 2003 SCMR 1501; Majid Mahmood v. Muhammad Shafi 2008 SCMR 554; Ali Ahmed v. Muhammad Iqbal 2009 SCMR 394; Haji Muhammad Boota v. Member (Revenue) BOR 2010 SCMR 1049 and Sh. Mehdi Hassan v. Province of Punjab through Member Board of Revenue 2007 SCMR 755 rel.

Juma Khan Mandokhail for Petitioner.

2021 M L D 542

[Balochistan]

Before Rozi Khan Barrech, J

ALI HASSAN---Appellant

Versus

Mst. SUMAIRA KHALID and 7 others---Respondents

F.A.O. No.26 of 2016, decided on 30th December, 2019.

Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13 & 14---Constitution of Pakistan, Arts.23 & 24---Civil Procedure Code (V of 1908), S.2(2)---Contract Act (IX of 1872), S.42---Ejectment of tenant---Bona fide personal need of landlord---Earlier ejectment petition having been dismissed as withdrawn---Death of a party during pendency of proceedings---Effect---Word 'party' contained in S.2(2) of C.P.C.---Scope---Eviction petition filed on behalf of landlord was accepted---Contention of tenant was that earlier eviction petition filed on behalf of landlord had been dismissed---Validity---Ejectment petition would only be barred if application on same issue had earlier been decided between the parties on merits---If earlier eviction petition had been decided finally then Rent Controller should reject subsequent ejectment petition summarily---Where order of dismissal of earlier eviction petition was on technical ground or for non-prosecution without deciding matter on merits the it could not be a bar to file a fresh ejectment petition on the same ground---Landlord required demised premises to run his own business and he had personal bona fide need---Word 'party' did include legal representatives of the deceased and they would step into his/her/their shoes---Decree in eviction proceedings in favour of an applicant would entitle him to get possession of demised premises and upon his death same did not abate---Once a right had accrued in favour of decree-holder then after his death, same would automatically devolve upon his legal heirs and they had the right to defend the decree---Contract was always enforceable against the legal heir or the successor-in-interest of original party and unless a contrary intention appeared by the contract same did not abate with the death of a party---Landlord had got approved site plan and building permit for new construction and he had substantiated his version through credible evidence---Statement of landlord on oath was quite consistent with his averment made in the eviction petition which was sufficient for eviction of tenant---No condition could be imposed against right of landlord to seek eviction even with mutual consent of the parties---Right of property as a fundamental right had been protected---Right of ownership was superior than the right of tenancy---Findings recorded by the Rent Controller were based on correct appraisal of evidence---Appeal was dismissed, in circumstances.

Allah Rakha v. Muhammad Shafi 1978 SCMR 437; Mursleen v. Ghulam Sarwar and others PLD 1987 Quetta 8; Ghulam Muhammad and another v Maqsood Hussain and 3 others 1984 SCMR 1142; Juma Sher v. Sabz Ali 1997 SCMR 1062 and Muhammad Shoaib Alam and others v Muhammad Iqbal and others 2000 SCMR 903 rel.

Adnan Ejaz Sheikh for Appellant.

Muhammad Ali and Khushnood Ahmed for Respondent.

2021 M L D 553

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

RAHIM BAKHSH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.(T) 29 of 2020, decided on 10th June, 2020.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9---Possession of narcotics---Bail, refusal of---Scope---Accused was alleged to have been found in possession of two kilograms of charas while 200 grams of charas was also recovered from right side of his pocket---High Court observed that where the quantity of 400/500 grams marginally exceeded the upper limit of 1000 grams, being borderline cases between Cls. (b) & (c) of S.9 of Control of Narcotic Substances Act, 1997, the accused persons were admitted to bail; however, in the present case, besides recovery of 2000 grams of charas 26 grams of crystal was also recovered from the personal possession of accused, thus, it was not a case of borderline---Petition for grant of bail was dismissed, in circumstances.

Noor Khan v. State 2012 MLD 1542; Ghulam Murtaza v. State PLD 2009 Lah. 362 and Jamal-ud-Din v. State 2012 SCMR 573 ref.

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

----S.497---Bail---Principle---Scope---Court while hearing a bail application is not to keep in view the maximum sentence provided by the statute for the charged offence but the one which is likely to be entailed.

Socha Gul v. State 2015 SCMR 1077 rel.

Habib-ur-Rehman Baloch for Applicant.

Yahya Baloch, Additional Prosecutor General for the State.

2021 M L D 729

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

ZAQOOM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.323 of 2019 and Murder Reference No.16 of 2019, decided on 14th May, 2020.

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

----Ss.302(b), 34 & 99---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd and common intention---Acts against which there is no right of private defence---Extent to which the right of private defence may be exercised---Appreciation of evidence---Sentence, reduction of---Confessional statement---Prompt FIR---Self-defence, exceeding of---Natural witnesses---Scope---Accused and another was alleged to have stabbed the deceased---Matter was reported within one hour and twenty minutes of the occurrence---Medical officer had examined the deceased after the occurrence and before registration of FIR---Occurrence had taken place in broad day light---Parties were known to each other, thus, there was no chance for false implication---Presence of witnesses was not denied by the accused, who were natural witnesses---Circumstances did not admit any hypothesis other than accused person's guilt---Accused had voluntarily got recorded his confessional statement and had given graphic details of the occurrence---Perusal of confessional statement and statement of Investigating Officer depicted that the deceased and accused had inflicted churri blows to each other due to which the accused had also sustained injuries---Accused had acted in his defense but had exceeded his right of self-defence---Appeal was partly allowed; conviction of accused under S.302(b), P.P.C., was altered into S.302(c), P.P.C., and he was sentenced to rigorous imprisonment for fourteen years.

Muslim Shah v. The State PLD 2005 SC 168; Nabi Bakhsh v. The State 1999 SCMR 1972 and Syed Alam v. The State 2020 YLR GB 340; Imtiaz alias Taji v. The State 2020 SCMR 287 and Mazhar Ellahi v. The State 2020 SCMR 586 ref.

Sharafat Ali v. The State 1999 SCMR 329; Rehmat Zeb v. The State 2013 PCr.LJ 864; Muhammad Ismail v. The State 1995 SCMR 1615; Allah Nawaz v. The State 2009 SCMR 736; Fayyaz Ahmed v. Muhammad Khan 2020 SCMR 281 and Azmatullah v. The State 2014 SCMR 1178 rel.

(b) Criminal trial---

----Witness---Related witness---Scope---No prohibition exists in the law that the statement of related witness cannot be considered.

(c) Criminal trial---

----Witness---Related witness---Scope---Mere relationship is no ground to discard/disbelieve the statement of natural witness.

(d) Criminal trial---

----Witness---Interested witness---Scope---Interested witness is a person who has motive to falsely implicate a person.

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

----S.164---Confession---Retracted---Scope---Retracted confession is sufficient piece of evidence for conviction if it is found voluntary and is not obtained by coercion or inducement.

Muhammad Ismail v. The State 1995 SCMR 1615 el.

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

----S.164---Confession---Scope---Confession is either to be accepted in toto or rejected as a whole.

Kamran Murtaza, Adnan Ejaz, Muhammad Umar Dogar and Khalil-ur-Rehman Kakar for Appellant.

Ms. Noor Jehan Kahoor, Additional Prosecutor General for the State and Muhammad Ayub Achakzai for the Complainant.

2021 M L D 798

[Balochistan]

Before Rozi Khan Barrech, J

ZAHID and others---Appellants

Versus

Mst. SADIA and others---Respondents

F.A.Os. Nos.59 and 74 of 2018, decided on 6th August, 2020.

(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.11 & 13---Eviction of tenant---Personal bona fide need of landlady---Conversion of the demised property---Scope---Land lady/respondent contended that she needed five shops (demised property) in order to convert the same into rooms for residential purpose to be included into the adjacent house belonging to her ---Contention/objection of the appellants (tenants) was that the respondent (landlady) had not obtained any permission/approval from the competent authority for conversion of the demised property from commercial to residential one---Held, that under S.11 of the Balochistan Urban Rent Restriction Ordinance, 1959 landlord/landlady could not convert a residential building into a non-residential building without the written permission of the Rent Controller, which meant no statutory bar/restriction for conversion of a non-residential building into a residential house---Landlady/respondent would not be obliged to seek the order of Rent Controller for converting a non-residential premises into residential one.

Sultan Muhammad Sabir v. Shaukat Mehmood and 7 others 1992 MLD 1962 and Munir Malik v. Sabir Hussain 1989 SCMR 193 ref.

(b) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Personal bona fide need of landlady---Land lady/respondent contended that she needed five shops ( demised property ) in order to convert the same into rooms for residential purpose to be included into the adjacent house belonging to her---Held, that respondent/landlady had adduced cogent and worthy of credence evidence to substantiate her version through her Attorney who had explained her genuine bona fide and personal need in simple straightforward and convincing manner---Witnesses produced by the respondent/landlady stood firm to the test of cross-examination and nothing beneficial could be extracted in spite of numerous questions---Where the statement of landlady on oath was quite consistent with his averment made in the eviction application; neither her statement was shaken nor anything else was brought in evidence to contradict her statement ; that would be considered sufficient for acceptance of eviction application---Findings of the Rent Controller regarding personal requirement of the landlady were based on elaborate, careful and correct appraisal of evidence and did not suffer from any misreading of the evidence---No illegality or infirmity was found in the impugned judgment of the Rent Controller ordering eviction of tenants---Appeal was dismissed, in circumstances.

Juma Sher v. Sabz Ali 1997 SCMR 1062; Muhammad Shoaib Alam and others v. Muhammad Iqbal and others 2061 SCMR 903 and Muhammad Hayat v. Muhammad Miskeen (DECD) through LRs and others 2018 SCMR 1441 ref.

(c) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Constitution of Pakistan, Arts. 23 & 24---Right of property---Scope---Eviction application---Bona fide personal need of the landlady---Utilization of property by landlady---Sufficiency------Right of property, being a fundamental right, was protected under Arts. 23 & 24 of the Constitution---Right of ownership, admittedly, was superior to the right of tenancy---Appellants/tenants, being inferior in status regarding the utilization of shops (demised property), could not determine its sufficiency or insufficiency---Eviction application was rightly allowed by the Rent Controller.

Abdul Sattar and Shehnaz Rana for Appellant.

Abdul Wadood Khan for Respondent.

2021 M L D 895

[Balochistan]

Before Abdul Hameed Baloch, J

NADIR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.45 of 2019, decided on 12th October, 2020.

(a) Emigration Ordinance (XVIII of 1979 )---

----S.22(b)---Receiving money, etc. for providing foreign employment---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and co-accused had received Rs.700,000/- (Rupees seven hundred thousand) from each of the complainant and promised to send them abroad for employment, but despite lapse of 7/8 months the accused persons failed to send them, on which the complainants demanded their money back but the accused refused---Record showed that the statements of the witnesses did not appeal and attract to prudent mind---Witnesses stated that they had gone to other city by air but no air ticket of airline was produced---Question arose that from the testimony that the earning of the witnesses were not more than Rs.5000/- to Rs.7000/- per month, while they were residing in rented house with rent more than their earnings, in such circumstances, how they managed such huge money---Witnesses stated that the receipts of money were given to them by the accused, but no such receipt was produced---Admittedly, when a person alleged something having been done, the burden lay on such person---Witnesses had not produced any document in order to prove their contention---Investigating Officer had denied any receipt given to him by the witnesses---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(b) Emigration Ordinance (XVIII of 1979)---

----S.22(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Receiving money, etc. for providing foreign employment---Appreciation of evidence---Withholding best evidence---Effect---Prosecution case was that the accused and co-accused had received Rs.700,000/- (Rupees seven hundred thousand) from each of the complainant and promised to send them abroad for employment, but despite lapse of 7/8 months the accused persons failed to send them, on which the complainants demanded their money back but the accused refused---One of the witnesses in her testimony stated that at the time of payment of money her mother was accompanied, but she was not produced in order to affirm the factum of payment of money---Mother of the said witness was the best witness, whose evidence was withheld---Under Art.129(g) of the Qanun-e-Shahadat, 1984 presumption could be drawn that if the witness was produced she could not support the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Azkar Hussain Shah v. The State through Advocate General Azad Jammu and Kashmir 2019 YLR 1470 rel.

(c) Criminal trial---

----Witness---Improvement made by witness in his statement---Effect---If a witness had made improvements in the deposition, the statement of such witness lost its credibility.

(d) Administration of justice---

----Where the law provided for doing a thing in a particular manner it had to be done in that manner, otherwise not done at all.

Mrs. Surayya Farman v. The State 1998 PCr.LJ 958 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---If any single and slightest doubt is created, benefit of the same would go to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Tahir Hussain Haider for Appellant.

Miss Mehwish Baloch, Additional Director FIA along with Baba Ali, Inspector FIA for Respondent.

2021 M L D 922

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

Syed LAL SHAH---Applicant

Versus

The STATE---Respondent

Criminal Appeal No.(S)47 of 2018, decided on 24th November, 2020.

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

----S.9(c)---Possession of two kilogram of charas---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of witnesses---Scope---Prosecution case was that on spy information accused was stopped and on search two packets of baked charas weighing two kilograms were recovered from his Nefa---Ocular account of the incident had been furnished by two witnesses i.e. Sub-Inspector and a Constable---Witness/Sub-Inspector in his deposition stated that two packets of baked charas weighing two kilograms were recovered from the Nefa of accused---Said witness in his cross-examination stated that he searched one or two motorcycles---Accused did not try to run away---Said witness admitted that FIR had been registered in respect of recovered motorcycle against the accused---Other witness/Constable / recovery witness stated that they were on routine patrolling---Informer informed the witness/Sub-Inspector and they proceeded towards Naka---Said witness in cross-examination stated that they proceeded from Thana at 8:00 or 8:30 a.m. and reached at Naka at 9:00 or 9:15 a.m. and they searched 15/20 vehicles, simultaneously stated that they only searched one or two motorcycles---Said discrepancies and contradictions in the statements of said two witnesses could not be lightly ignored---Circumstances established that the prosecution had failed to prove the case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Minhaj v. The State 2019 SCMR 326 rel.

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

----S. 9(c)---Possession of two kilogram of charas---Appreciation of evidence---Benefit of doubt---Delay of about seventy days in sending the sample for analysis---Effect---Prosecution case was that on spy information accused was stopped and on search two packets of baked charas weighing two kilograms were recovered from his Nefa---Investigating Officer deposed that during investigation the alleged samples were sent to Forensic Science Laboratory for analysis---Witness produced Forensic Science Laboratory Report, which revealed that sample were received to Forensic Science Laboratory after seventy days, with the memorandum, however, Investigating Officer stated that he sent the alleged material to Forensic Science Laboratory, meaning thereby that he himself had not dispatched the material to Forensic Science Laboratory---Material was received at Forensic Science Laboratory after more than seventy days without any explanation that during intervening period the alleged material was in whose custody/possession---Circumstances established that the prosecution had failed to prove the case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Amjad Ali v. The State 2012 SCMR 577 rel.

(c) Criminal trial---

----Prosecution, duty of---Scope---Prosecution must prove its case on its own strength by cogent and confidence inspiring evidence.

Hasnain Iqbal Minhas for Appellant.

Jamil Akhtar Gajani, Additional Prosecutor General for the State.

2021 M L D 972

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

ALLAH BAKHSH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(S)26 of 2020, decided on 14th October, 2020.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused was charged that he along with his co-accused committed murder of the brother of the complainant---Motive was alleged to be previous enmity between the parties---Record showed that the complainant in cross-examination stated that he left his brother in injured condition and went to police station for registration of FIR---In cross-examination the witness replied that he returned back in half an hour to the place of occurrence and his brother was dead---Witness in his deposition contradicted the complainant---Witness stated that he and other witness shifted the injured from the place of occurrence---Injured died near the hospital---Witness replied that when the complainant came back he was present at the spot---Police reached the spot before shifting the injured to hospital---Witness stated that he, complainant and other witness had taken the injured to hospital, but before reaching hospital the injured died---Statements of the witnesses were not in line rather contradicting each other---Such glaring contradictions could not be ignored---Appeal against conviction was allowed, in circumstances.

Muhammad Jabran v. The State 2020 SCMR 1493 rel.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---No justification available for presence of witnesses at the place of occurrence---Unnatural conduct of the complainant---Scope---Accused was charged that he along with his co-accused committed murder of the brother of the complainant---In the present case, the conduct of the complainant was unnatural---Deceased was brother of the complainant, who due to firing sustained injuries and was in critical condition, but the complainant left the injured at the spot and went for registration of FIR---Human conduct was that firstly tried to shift the injured to hospital in order to provide medical treatment---From the conduct of the witnesses it could be judged that they were not present at the spot---Two armed persons fired upon deceased but did not harm the brother of the deceased and other eye-witnesses---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Syed Muhammad v. The State 2019 YLR 337 rel.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of about ten days in sending the incriminating articles and its safe custody---Scope---Accused was charged that he along with his co-accused committed, murder of the brother of the complainant---Record showed that the blood-stained earth and shirt received to Forensic Science Laboratory, with the delay of ten days with positive report---Prosecution failed to justify the delay in sending the said articles and its safe custody---In such situation, the positive report lost its evidentiary value---Appeal against conviction was allowed, in circumstances.

Asad Rehmat v. The State 2019 SCMR 1156 rel.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence was not corroborative rather it only confirmed ocular account with regard to seat of injuries, time of occurrence and weapon used in commission of the offence---Medical evidence did not prove the culpability of accused. [p. 978] E

Altaf Hussain v. Fakhar Hussain 2008 SCMR 1103 rel.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive was not proved---Accused was charged that he along with his co-accused committed murder of the brother of the complainant---In the present case, the complainant in Fard-e-Biyan alleged the motive of killing his brother that 15/16 years ago the accused levelled allegation of Siyahkari and theft and on that account the accused killed his brother, but produced no evidence to substantiate the same---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Motive---Scope---No rule was available that conviction could not be awarded without motive---If it appeared from the record that the evidence was sufficient for conviction, the court could convict the accused---Once the motive was alleged by the complainant it must be proved.

Mst. Mir Shahbano v. Ahmed Khan 2011 YLR 1965 rel.

(g) Criminal trial---

----Witness---Related witness---Reliance---Scope---Mere relationship of witness with the deceased was no ground to discard the ocular account.

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

----Art.38---Disclosure before the police---Scope---Admission or disclosure of accused during custody before police had no evidentiary value.

Hayatullah v. The State 2018 SCMR 2092 rel.

(i) Criminal trial---

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

Safdar Baloch alias Ali v. The State 2019 SCMR 1412 rel.

Mehmood Ali Butt for Petitioner.

Jamil Akhtar Gajani, Additional Prosecutor General for the State.

2021 M L D 987

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

ALLAH BAKHSH---Appellant

Versus

MUHAMMAD RAMZAN and 2 others---Respondents

Criminal Acquittal Appeal No.(S)185 of 2019, decided on 24th November, 2020.

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

----Ss. 302, 324, 337-H(ii), 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Contradiction between witnesses---Presence at scene of occurrence doubtful---Prosecution case was that the accused persons committed murder of the brothers of the complainant by firing---Record showed that the names of eye-witnesses were not mentioned in fard-e-bayan nor the eye-witness had shown the presence of the other eye-witness at the spot at the relevant time---Inference, in circumstances, could be drawn that the statement of alleged ocular account was not worthy of credence---Alleged eyewitness had not accompanied the complainant either to Levies Station or to hospital---If the witnesses were present at the spot then the complainant should mention the names of witnesses in fard-e-bayan---Circumstances suggested that the alleged ocular witnesses were foisted in order to strengthen the prosecution case---If the names of ocular witnesses were not mentioned in the FIR, their statements needed scrutiny---Record showed that the eye-witness had not shown the presence of accused, whereas the other eye-witness stated that the firing was made by absconding accused---Respondents were present at 15/20 pace away---Even the complainant in fard-e-bayan assigned the role of firing to absconding accused, whereas accused persons, were shown present at the spot and they were assigned the role of aerial firing by SMG and no empty shell of SMG was recovered from the place of occurrence---Witnesses had not attributed any coercive role to the accused in commission of offence---Circumstances established that the Trial Court had passed a well -reasoned judgment which warranted no interference---Appeal against acquittal was dismissed accordingly.

Bagan Khan v. State 2012 YLR 510 rel.

(b) Criminal trial---

----Vicarious liability---Scope---Mere presence of the acquittal accused with the co-accused at the place of occurrence would not be sufficient to visit the former with vicarious liability.

Abdul Khaliq v. State 2006 SCMR 1886 rel.

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

----Ss.302, 324, 337-H(2), 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, rioting, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Prosecution case was that the accused persons committed murder of the brothers of the complainant by firing---Accused placed similarly to acquitted co-accused---Record showed that one co-accused was arrested, who faced the trial and got acquittal---Role of accused was similar with the co-accused, who were acquitted on the same set of evidence---Trial Court had rightly acquitted the accused on the basis of said principle---Circumstances established that the Trial Court had passed a well-reasoned judgment which warranted no interference---Appeal against acquittal was dismissed accordingly.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence was confirmatory in nature, only confirmed unnatural death, weapon used in the commission of offence, kind of weapon used but could not implicate the accused with the crime.

(e) Appeal against acquittal---

----Double presumption of innocence---Scope---Order of acquittal of accused by court of competent jurisdiction carried double presumption of innocence.

Muhammad Shafee alias Kuddo v. State 2019 SCMR 1045 rel.

2021 M L D 994

[Balochistan]

Before Muhammad Kamran Mulakhail and Rozi Khan Barrech, JJ

MUHAMMAD AYUB---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE-VII/JUSTICE OF PEACE, QUETTA and others---Respondents

C.P. No.1377 of 2019, decided on 21st December, 2020.

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

----Ss. 22-A & 25---Powers exercised by ex-officio Justice of Peace under S.22-A(6), Cr.P.C.---Issuing appropriate directions for registration of FIR or transfer of investigation or to check neglect, failure or excesses committed by police authorities--- Adjudication of application under S.22-A, Cr.P.C. by Ex-Officio Justice of Peace---Scope---While exercising powers under S.22-A, Cr.P.C., Justice of Peace was not supposed to proceed and act mechanically by simply considering version of events narrated by party applying for registration of FIR, but instead, in order to safeguard against abuse of process, Justice of Peace must apply his / her mind and satisfy himself that prima facie there existed some material available on record to support such version---Such powers under S.22-A of Cr.P.C., were quasi-judicial in nature and were not executive, administrative or ministerial but instead exercise of such powers demanded discretion, and judicial observation after granting hearing to parties involved.

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

Muhammad Naseem Quresh for Petitioner.

Ahsan Rafique Rana for Respondents Nos.5 and 6.

Muhammad Younus Mengal, Assistant Prosecutor General ("APG") for the State.

2021 M L D 1001

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

ABDUL SALEEM and another---Petitioners

Versus

ABDUL AZIZ and 2 others---Respondents

C.P. No.1242 of 2019, decided on 30th November, 2020.

Civil Procedure Code (V of 1908)---

----O.VI, R.17---Amendment in plaint---Principle---Plaintiff/respondent sought amendment in plaint which was declined by Trial Court but Lower Appellate Court allowed the same---Validity---Only rider was that party could not be allowed to substitute a new cause of action or introduce a cause of action distinct from the one which was basis of suit and such was not situation of plaintiff/respondent--- Suit property belonged to forefathers of parties and defendants/petitioners were sons of plaintiff/respondent who were so-called legal heirs of their grandfather---Plaintiff/respondent was not in possession therefore, he should have prayed or relief in plaint---Such defect was pointed out in written statement that plaintiff/respondent was out of possession, therefore, amendment in prayer clause was made so as to insert relief of possession---Addition of relief of declaration and possession in suit did not in any manner changed character of the suit nor introduced any new cause of action---High Court declined to interfere in order passed by Lower Appellate Court in exercise of its revisional jurisdiction---Constitutional petition was dismissed, in circumstances.

Nazir Hussain Rizvi v. Zahoor Ahmed PLD 2005 SC 787 rel.

Sultan Muhammad Taran (absent) for Petitioner.

Obaidullah Khan Kakar (absent) for Respondents Nos.1 and 2.

Khalil-uz-Zaman Alizai, Additional Advocate General ("A.A.G.") for Respondent No.3.

2021 M L D 1131

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

BISMILLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.34 of 2020, decided on 15th October, 2020.

(a) Criminal trial---

----Acquittal---Whether it is on the basis of a declaration by a court on the conclusion of the trial that someone is not guilty of the charge or at any stage under S.249-A or 265-K, Cr.P.C. or on the basis of compromise under S.345, Cr.P.C. it was acquittal.

Manzoor Hussain Jatoi v. State 1997 PCr.LJ 500 and Muhammad Islam v. Government of N.W.F.P., 1998 SCMR 1993 rel.

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

----S.517---Order for disposal of property regarding which offence committed---Accused was booked in a criminal case registered under S.324, P.P.C., he was tried and after accepting an application under S.345(2), Cr.P.C., was acquitted, however the case property, pistol, was ordered to be confiscated in favour of State and the licence to be cancelled---Validity---No distinction could be drawn between an acquittal on the basis of compromise in compoundable offences or an acquittal by way of benefit of doubt, consequences in each case would be the same---In the context of the provisions of S.345(6), Cr.P.C., the effect of an acquittal recorded by a court on the basis of a successful and complete compounding of a compoundable offence shall include all the benefits and fruits of a lawful acquittal---In case of acquittal, the accused became entitled to all the reliefs consequent upon to his acquittal including the release of his property seized by the police during the investigation of the case---Since the accused was acquitted of the charge in view of the compromise effected between the parties, as such, accused was entitled to get the case property---Appeal was allowed by setting aside the impugned order and case property was ordered to be delivered to the accused after due verification of the licence by the issuing authority.

Masood Ahmed Dotani for Appellant.

Abdul Mateen, Deputy Prosecutor General for the State.

2021 M L D 1141

[Balochistan (Sibi Bench)]

Before Abdul Hameed Baloch, J

KHUDA-E-DAD and 15 others---Petitioners

Versus

BHAWAL KHAN and another---Respondents

Civil Revision Petition No.(s)26 of 2019, decided on 15th October, 2020.

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

----Ss.135 & 172(1)---Civil Procedure Code (V of 1908), S.9---Specific Relief Act (I of 1877), Ss.42---Suit for declaration, partition and possession---Partition of agricultural land---Revenue courts, jurisdiction of---Scope---Dispute between the parties pertained to partition of joint agricultural land entered in the record of rights in the name of parties---Plaintiff/respondent filed an application to Tehsildar (Assistant Collector) for partition but due to non-attendance of petitioners/defendants, he (Tehsildar) directed to approach Civil Court---Validity---Suit-property (Khata) was still in the name of contesting parties---Partition of joint agricultural land was exclusive jurisdiction of the Revenue Authority under S.135 of Balochistan Land Revenue Act, 1967 (' the Act 1967')---Section 172(1) of the Act, 1967 stipulated that in cases where the Board of Revenue or any officer took cognizance of the matter, the Civil Court had no jurisdiction to dispose of such cases---Though under S.9 of Civil Procedure Code, 1908, Civil Court had jurisdiction to try all civil cases except either expressly or impliedly barred but in partition proceedings, the jurisdiction of Civil Court was ousted under Ss.135 & 172(1) of the Act, 1967---Suit-property required to be partitioned as jointly owned by the parties---Revenue Authority described the procedure while adopting the mode of partition under S.135 of the Act, 1967---When any party interested in partition of his share in the joint landed property had to approach the Revenue Authority---Revenue Authority was fully empowered to effect partition for which the party applied---Respondent/plaintiff filed application which was not decided by the Tehsildar (Assistant Collector), instead he directed the respondent to approach Civil Court which was not according to law---Reason (i.e. non-appearance of the petitioners) mentioned in the order by the Assistant Collector was mockery of law---If the petitioners wilfully failed to appear in partition proceeding, the Revenue Officer could not wait for him/them, but should have proceeded with the partition proceedings under the law---Partition of joint agricultural property was exclusive jurisdiction of Revenue Officer as he was bound to act as per the Act, 1967---High Court dismissed the suit filed by the respondent for want of jurisdiction, and set aside judgments and decrees passed by both the Courts below---High Court directed the Revenue Authority to decide the matter expeditiously within two months---Revision petition was disposed of accordingly.

Qamar Sultan v. Mst. Bibi Sufaidan 2012 SCMR 695 and Jamaluddin v. Haji Gul Khan 2012 CLC 1353 ref.

Muhammad Iqbal Marghazani for Petitioners.

Shahid Baloch, Additional Advocate-General for Official Respondent.

Respondent No.1 (present in person).

2021 M L D 1168

[Balochistan (Sibi Bench)]

Before Jamal Khan Mandokhail, CJ, Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

ALI BAKHSH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(s) 20 of 2020, decided on 6th October, 2020.

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

----S.9(c)---Possession of forty kilograms of charas---Appreciation of evidence---Prosecution case was that on spy information vehicle driven by accused was checked and 40 packets of charas were recovered from secret cavities of the vehicle, each packet weighing one kilogram, total 40 kilograms---Prosecution produced recovery witness and complainant to prove the charge---Said witnesses remained consistent and firm regarding the recovery effected from the accused, they were tested through lengthy cross-examination but their evidence could not be shattered---Apparently, sufficient evidence was available on record to prove the guilt of the accused and he being a driver of the vehicle was in charge of the vehicle and his culpability was established beyond the shadow of doubt---Accused had taken the stance in his statement recorded under S.342, Cr.P.C, that he was innocent and had falsely been involved into the case due to exchange of hot words with the SHO, but despite that he neither opted to record his statement under S.340(2), Cr.P.C, nor any evidence was produced by him in his defence---Mere bald and general assertions were not sufficient to discard the overwhelming prosecution evidence---Accused was admittedly driving the car from which the alleged narcotic was recovered---Accused being the driver was well within the knowledge about the concealment of narcotic in the vehicle---Police Officials were competent witnesses, and their evidence could not be discarded only for the reason that they were Police Officials---Police Officials had furnished straightforward and confidence inspiring evidence---Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Kashif Amir v. The State PLD 2010 SC 1052; Ghulam Qadir v. The State PLD 2006 SC 61 and Riaz Mian v. The State 2014 SCMR 1165 rel.

(b) Criminal trial---

----Witness---Police witness---Scope---Prosecution witness being Police Official by itself could not be considered as a valid reason to discard his statement/evidence.

Zaffar v. The State 2008 SCMR 1254 rel.

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

----S.9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Possession of forty kilograms of charas---Appreciation of evidence---Delay in sending samples of contraband for chemical analysis---Effect---In the present case, alleged recovery was effected on 09.11.2019, whereas the sample parcel was sent to the Chemical Examiner on 11.12.2019---However, the delay was explained by the Investigating Officer and he stated in his statement that on 10.11.2019 he wrote a letter to the high-ups of the police department for permission for sending the case property to Chemical Examiner's report, meaning thereby that the Investigating Officer had taken the initiative on the very next day of recovery from the accused for depositing the case property to the office of the Chemical Examiner---Even otherwise, there was nothing on record to establish that the said parcel was even tampered with, instead the evidence led by the prosecution established that the parcel received by the agency remained intact---Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Saleem Umer Rind for Appellant.

Jameel Akhter Gajani, DPG for the State.

2021 M L D 1180

[Balochistan]

Before Muhammad Ejaz Swati, J

NASEER AHMED and another---Appellants

Versus

GHAFOOR KHAN---Respondent

F.A.O. No.05 of 2020, decided on 30th September, 2020.

(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Payment of "pagri"---Personal bona fide need---Scope---Tenant appealed against the acceptance of eviction application---Contention of tenant was that landlord had not approached him for collection of rent and that he (tenant) had paid certain amount of sum as pagri---Validity---Tenant had not denied the existence of relationship of landlord and tenant---Tenant was under obligation to make payment of monthly rent to the landlord, in case the landlord refused to accept the rent, he had to send the same through money order or any advanced mode and if the same was not accepted then due rent was to be deposited in the Court---Balochistan Urban Rent Restriction Ordinance, 1959 did not impose any obligation on the landlord to find his tenant and collect rent---Plea of payment of pagri could not be substantiated by the tenant through any documentary evidence---Landlord had been successful in leading reliable and sufficient evidence to prove that the shop in question was required in good faith for personal need of his sons---Findings rendered by the Rent Controller in the impugned order were based on proper appreciation of evidence and did not warrant interference by the High Court---Appeal was dismissed, in circumstances.

Alif Din v. Khadim Hussain 1980 SCMR 767; Malka Begum v. Mehr Ali Hashmi 1984 SCMR 755; Haji Abdullah v. Yahya Bakhtiar PLD 2001 SC 158; Iqbal Book and Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197 and Messrs F.K Irani & Co. v. Begum Feroze 1996 SCMR 1178 ref.

(b) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction of tenant---Payment of "pagri"---Scope---Plea of payment of "pagri" does not disentitle the landlord from filing ejectment proceedings against the tenant on the ground of personal bona fide need.

Muhammad Ashraf v. Ismail and 4 others 2000 SCMR 498 ref.

Abdul Jabbar Musakhail and Muhammad Qasim Mandokhail for Appellants.

Aftab Qadir Mughal for Respondent.

2021 M L D 1197

[Balochistan]

Before Abdullah Baloch, J

ABDUL KHALIQ and 6 others---Applicants

Versus

MUHAMMAD ANWAR NASIR and others---Respondents

Civil Miscellaneous No.02 of 2020, decided on 16th June, 2020.

Civil Procedure Code (V of 1908)---

----S.24---Transfer of case, application for---Sufficient/reasonable cause---Scope---Occurrence of a criminal incident---Applicants (plaintiffs) sought transfer of the case on the ground that the respondents (defendants), becoming inimical towards them, had attacked upon their aunt (one of the respondents) and were also threatening them with dire consequences---Held, that the applicants had made an attempt to tag the criminal incident with civil litigation and to base the same for transfer of the civil case to another place just to create trouble and inconvenience for the respondents (defendants), which, prima facie, seemed to be creation of mala fide intention---Transfer of case from present place to somewhere else would create inconvenience for both the parties and their witnesses---Parties were close to each other and also residing in the same city and there was no history of previous enmity between them---Minor incident could not be the base for transfer of case for which a criminal case had already been registered and law was put into motion---Applicants had failed to bring on record any "sufficient cause" for transfer of case ---Record revealed that the counsel of the applicants was also one of the plaintiffs (applicants), High Court observed that, in civil litigation he could make an alternate arrangement of an advocate to proceed with their case---Even otherwise, the criminal incident had taken place between the respondents and taking advantage of the same, the applicants had joined hands with one of the respondents to avail sympathies of her in their favour---Parties could not be allowed to seek transfer of the case from one court to other without showing "sufficient cause"---In absence of any valid ground, such practice tended to frustrate and cause delay in lawful proceedings pending before the Court of competent jurisdiction and also caused inconvenience to the other party---Applicants had failed to show any "reasonable cause" or valid ground for seeking transfer of the case from the Trial Court, which was the requirement of S.24 of the Civil Procedure Code, 1908---Application for the transfer of the case was dismissed, in circumstance.

Abdul Sadiq Khilji for Applicants.

Shah Rasool Kakar for Respondents Nos.1 to 13 and 19 to 22-a to h.

Jameel Shah for Respondent No.18.

Shahid Ali Baloch, A.A.G.

2021 M L D 1286

[Balochistan]

Before Jamal Khan Mandokhail, CJ and Rozi Khan Barrech, J

Mst. ARBAB KHATOON---Appellant

Versus

IMAM BAKHSH and 3 others---Respondents

Criminal Acquittal Appeal No.(s)76 of 2015, decided on 15th October, 2020.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Delay of about one and half hours in lodging the FIR---Effect---Accused were charged for committing murder of brother of the complainant by firing---Record transpired that FIR was lodged with a delay of one and a half hours without any explanation---Fact remained that the distance between the place of occurrence and the police station was only four kilometres---Said unexplained delay was fatal for the prosecution case, in circumstances. [p. 1291] A

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

----Ss.302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused were charged for committing murder of brother of the complainant by firing---Motive behind the occurrence was that a few days ago, hot words exchanged between the deceased and father of the accused persons---Prosecution in order to prove its case produced complainant, who was brother of the deceased and cousin of the deceased as eyewitnesses---Said witnesses stated that they identified the accused persons in the light of the electricity bulb---During cross-examination said witnesses stated that the accused made firing upon the deceased from a close range of 5/6 steps and they were also present with the deceased---Witnesses also alleged that all the accused made firing upon the deceased for two or three minutes---Mode and manner of the occurrence were shrouded in mystery and if the accused were to kill the deceased then why they left the witnesses alive as they had ample opportunity to do away with them---Witnesses were within the firing range of the accused that too when accused were allegedly armed with pistols and Kalashnikovs, which were automatic weapons---So escaping unhurt of the witnesses did not appeal to the prudent mind despite the fact that the distance between the deceased, the witnesses and the accused were given as 5/6 steps, from such a short distance how the witnesses remained safe---Prosecution had failed to point out any defect in the impugned judgment passed by the Trial Court---Appeal being devoid of merits was accordingly dismissed.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Night time occurrence---Source of light---Scope---Accused were charged for committing murder of brother of the complainant by firing---In the present case, the witnesses stated in their statements that they identified the accused in the light of electricity bulb, however, the site plan revealed that no light bulb was shown in the same---No light bulb was taken into possession by the Investigating Officer during the investigation---Identification of the accused was doubtful, in circumstances.

Sardar Bibi v. Munir Ahmed and others 2017 SCMR 344; Rashid Khan v. The State 2017 SCMR 564 and Gulfam and another v. The State 2017 SCMR 1189 rel.

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

----Ss.302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Non-justification for the presence of witnesses at the place of occurrence---Chance witnesses---Scope---Accused were charged for committing murder of brother of the complainant by firing---Record showed that the alleged occurrence took place at the house of the deceased, however, the eyewitnesses were not residents of the locality/place of occurrence---Said witnesses, when appeared before the court, explained that they were factually not residing at the place of occurrence, but they stayed with the deceased overnight---Both the witnesses were chance witnesses, in circumstances---Said witnesses had claimed that they came to see the deceased but did not tell why and more importantly did not give any reasons for staying overnight---In the absence of some confidence-inspiring explanation regarding their presence at the crime scene, the chance witnesses and their testimony could simply be termed as suspect evidence---Circumstances established that the prosecution had failed to point out any defect in the impugned judgment passed by the Trial Court---Appeal being devoid of merits was accordingly dismissed.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1442 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Medical and ocular evidence---Conflictions---Scope---Accused were charged for committing murder of brother of the complainant by firing---Record showed that the medical evidence was in conflict with the ocular evidence and the seat of injuries hardly explained that they were caused by using firearms, i.e. Kalashnikov and pistols---Medical Officer who examined the deceased appeared before the court and stated that he noticed thirteen injuries on the dead body of the deceased---Said witness further stated that all the injuries sustained by the deceased were pallet injuries---Injuries were one cm in diameter and such injuries could be caused due to .12 bore shotgun---On the other hand, when eyewitnesses appeared before the court, they stated that the accused persons were equipped with Kalashnikov and pistols and they made firing upon the deceased---None of the witnesses stated that any of the accused was armed with .12 bore shotgun---Investigating Officer recovered eight bullet empties of Kalashnikov and nine bullets empties of .30 bore T.T pistol from the place of occurrence---No empties of a .12 bore shotgun were taken into possession by the investigating Officer from the place of occurrence---Said shortcomings led to anomaly between medical and ocular evidence, which could legitimately be resolved in favour of the defence---Circumstances established that the prosecution had failed to point out any defect in the impugned judgment passed by the Trial Court---Appeal being devoid of merits was accordingly dismissed.

Abdul Jabbar and another 2019 SCMR 129 rel.

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

----Ss.302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Recovery of weapons on the pointation of accused---Reliance---Scope---Accused were charged for committing murder of brother of the complainant by firing Record showed that the accused was arrested and during the investigation, he disclosed about the commission of the offence and 30 bore pistol was recovered from his possession from the bushes in the jungle---One T.T pistol was recovered on the pointation of the co-accused from his house---Both the pistols and crime empties were sent to Firearm Expert who gave a positive report which was not possible in circumstances---According to medical witness, the deceased received injuries by means of a .12 bore shotgun, whereas Investigating Officer took bullet empties of Kalashnikovs and T.T pistols from the crime scene and sent the alleged crime weapons recovered from the accused along with bullet empties of Kalashnikov and pistol to Forensic Science Laboratory who gave a positive report in that regard---No empties of the shotgun were recovered from the place of occurrence---Circumstances established that the prosecution had failed to point out any defect in the impugned judgment passed by the Trial Court---Appeal being devoid of merits was accordingly dismissed.

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

----Ss.302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Delay of about three months in sending the weapon and crime empties for analysis---Scope---Accused were charged for committing murder of brother of the complainant by firing---Record showed that the Investigating Officer secured the empties on the day of occurrence from the place of incident, however, the accused were arrested after 22 days when the pistol was recovered---Said pistol was sent to the Firearms Expert along with the bullet empties together after three months' delay for analysis without any reason as to where the recovered material was kept and in whose custody---Sending of a firearm along with empty shell lost its evidentiary value, as such could not be considered as corroborative evidence---Circumstances established that the prosecution had failed to point out any defect in the impugned judgment passed by the Trial Court---Appeal being devoid of merits was accordingly dismissed.

Haroon Shafique v. The State 2018 SCMR 2118 rel.

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

----Ss.302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Motive was not proved---Scope---Accused were charged for committing murder of brother of the complainant by firing---In the present case, the complainant forwarded the motive that few days from the occurrence a quarrel took place between the father of the accused and the deceased, due to which the accused committed murder of the deceased, however, no FIR whatsoever had been produced about the alleged quarrel between the father of the accused and the deceased---Throughout the investigation, nothing was brought on record to prove the motive---Circumstances established that the prosecution had failed to point out any defect in the impugned judgment passed by the Trial Court---Appeal being devoid of merits was accordingly dismissed.

(i) Criminal trial---

----Motive---Scope---Motive was always a double-edged weapon which cut both ways.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.

(j) Appeal against acquittal---

----Double presumption of innocence---Interference---Acquittal carried with it double presumption of innocence---Acquittal order could only be reversed when found blatantly perverse, resting upon fringes of impossibility and resulting in miscarriage of justice---Acquittal order could not be set-aside merely on the possibility of a contra view.

Anwar-ul-Haq Chaudhry for Appellant.

Hasnain Iqbal Minhas for Respondents Nos.1 to 3.

Jameel Akhter Gajani, DPG for the State.

2021 M L D 1333

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

MUHAMMAD NASEEM---Petitioner

Versus

VICE-CHANCELLOR BOLAN UNIVERSITY OF HEALTH SCIENCES, QUETTA through Registrar and another---Respondents

C.P. No.80 of 2020, decided on 17th August, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Educational Institution---Admission---Merit list---Admission to medical college---Petitioner was aggrieved of merit list prepared for admissions to medical colleges---Validity---Selection process was finalized and academic session had started---Petitioner was not vigilant and she could not be permitted to take benefit of her own lapses nor selected candidates could be deprived of their legitimate admissions---Jurisdiction of High Court under Art.199 of the Constitution was meant for correcting jurisdictional errors in orders and proceedings of tribunals and executive authorities---No illegality or error in the process of selection of candidates by authorities warranting interference by High Court was noticed---Constitutional petition was dismissed, in circumstances.

Kashif Panezai for Petitioner.

Sultan Khalid, Legal Advisor for BUMHS for Respondent No.1 along with Sohial Azam, Admin Officer, BUMHS, Quetta.

2021 M L D 1344

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

Messrs BAZ MUHAMMAD & Sons through Chief Executive---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN, through Secretary Communication and Works Department, Quetta and 3 others---Respondent

Constitution Petition No.90 of 2020, decided on 30th April, 2020.

Balochistan Public Procurement Regulatory Authority Rules, 2014---

----Rr.41 (3), 43 & 56---Public procurement---Grievance Redressal Committee---Constituting second Committee---Effect---Petitioner was the lowest bidder but no work order was issued to him---Plea raised by petitioner was that constituting second Redressal of Grievance Committee was against the provisions of Balochistan Public Procurement Regulatory Authority Rules, 2014---Validity---Promulgation of Balochistan Public Procurement Regulatory Authority Rules, 2014, was to be followed in its letter and spirit---Procurement authority had no power to act beyond the rule to supersede the Rules---All public bodies making procurement decision must adhere to the Rules; mandatory upon procuring agencies to abide by the procedure---Any act which was required to be done in a particular manner, same should have been done in that manner---Constituting second Grievance Redressal Committee was not provided in Balochistan Public Procurement Regulatory Authority Rules, 2014---Nobody could be penalized by the act of public functionary---High Court declared constitution of second Grievance Redressal Committee as illegal and without lawful authority---Constitutional petition was allowed, in circumstances.

Ahmed Lateef Qureshi v. Controller of Examination Board of Intermediate and Secondary Education, Lahore PLD 1994 Lah. 3 rel.

Naseebullah Tareen for Petitioner.

Khalil-u-Zaman Alizai, A.A.G along with Abdul Manaf, Executive Engineer B&R, District Loralai for Respondents.

2021 M L D 1364

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar, J

SEWA KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(s)58 of 2020, decided on 14th October, 2020.

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

----S.13---Unlicensed possession of arms---Appreciation of evidence---Scope---Allegation against accused was that he, in order to avoid his arrest, opened firing upon the Levies personnel which resulted in firearm injury to a constable, however, he was overpowered and was found to be in possession of an SMG rifle along with 3 magazines containing 35 live cartridges---Injured constable was not produced before the Trial Court nor was his medical certificate produced---No empties were recovered from the place of occurrence by the Investigating Officer---Burden was on the prosecution to prove not only that the firearm was recovered from the possession of accused but also that he was not possessing any valid licence to keep the same---Weapon recovered from the possession of accused was never sent to the Ballistic Expert, therefore, without ascertaining the nature of weapon and its condition punishment could not be awarded---Appeal against conviction was allowed, in circumstances.

Rahim Bux v. State 2010 PCr.LJ 642 rel.

(b) Criminal trial---

----Guilt against the accused must rest surely and firmly on the evidence produced in the case and plain inference of the guilt may irresistibly be drawn from the evidence.

Imam Sher Marri for Appellant.

Abdul Mateen, Deputy Prosecutor General for the State.

2021 M L D 1381

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

The STATE---Applicant

Versus

Syed AMIR MUHAMMAD---Respondent

Criminal Bail Cancellation Application No.21 of 2020, decided on 21st August, 2020.

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

----Ss.497(5)& 103---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25---Application for cancellation of bail---Possession of narcotics---Non-association of private witnesses---Scope---Prosecution sought cancellation of bail granted to accused by the Trial Court---Accused was alleged to have been found in possession of 4 kilograms of ice (drug)---Non-association of private witnesses could not be made a basis for granting post-arrest bail to an accused as S.25 of the Control of Narcotic Substances Act, 1997, excluded application of S.103, Cr.P.C., in narcotic cases---Trial Court had wrongly made deeper appreciation of evidence at bail stage, which was not permissible rather tentative assessment of the material collected by the prosecution had to be made at bail stage---Order granting post-arrest bail to the accused could not sustain---Application for cancellation of bail was allowed, in circumstances.

The State through Deputy Director Anti-Narcotics Force, Karachi v. Mobin Khan 2000 SCMR 299 and Zafar Iqbal v. Muhammad Ilyas 2006 SCMR 150 ref.

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

----S.497---Post arrest bail---Final stage of trial---Scope---Courts are slow in granting post-arrest bail at final stage of the trial.

Muhammad Baqir Bakhtiar, Special Prosecutor ANF for Applicant/State.

Asmatullah Mandokhail for Respondent.

2021 M L D 1587

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

LIAQUAT ALI---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Mines and Minerals Development Department Balochistan and 2 others---Respondents

Constitution Petition No.1426 of 2018, decided on 20th July, 2020.

Constitution of Pakistan---

----Arts.199 & 24---Constitutional petition---Protection of property rights---Scope---Petitioner participated in an auction for award of contract and deposited one million rupees as call deposit but the department deliberately omitted to issue the work order---Contention of department was that due to non-deposit of amount of security, advance and stamp paper, the call deposit amount was forfeited---Validity---Record revealed that the department had not followed its own procedure---No decision in respect of accepting or rejecting the bid was taken within the stipulated period---Forfeiture of the call deposit by the department without due course of law was an infringement of the fundamental rights of the petitioner as protected under Art. 24 of the Constitution---Constitutional petition was allowed and the department was directed to refund the call deposit amount to the petitioner.

Muhammad Ali Kanrani for Petitioner (absent).

Khalil-uz-Zaman, A.A.G. for Respondents.

2021 M L D 1610

[Balochistan]

Before Muhammad Kamran Mulakhail and Rozi Khan Barrech, JJ

MUHAMMAD TUFAIL and another---Petitioners

Versus

SAMINA TABASUM and another---Respondents

Constitution Petition No.862 of 2020, decided on 26th October, 2020.

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

----Ss.12 & 25---Custody of minor---Interim custody, right of---Scope---Guardian Court, jurisdiction of---Father of minor had passed away---Guardian Court granted interim custody of minor girl (aged 08 years) to the mother---Paternal grandparents invoked constitutional jurisdiction of High Court against the said order---Held, that under S.12(1) of the Guardians and Wards Act, 1890, the Guardian Judge was empowered to make interlocutory orders for production of minor and interim protection of his person and his property---Said power could even be exercised in the absence of an urgency---Company of grandfather obviously could not be a substitute of the mother---Custody of minor could not be allowed to shuttle between the parties---Once the Guardian Judge had exercised its jurisdiction in granting interim custody, the same was to be allowed to stay, unless there were compelling circumstances to change the custody---Order of temporary custody of the minor being interim in nature would be subject to the decision in the (main) guardian application under S.25 of Guardians and Wards Act, 1890---Same could be varied, altered or rescinded by taking notice of all subsequent events and welfare of minor---No illegality or infirmity was found in the impugned order and judgment passed by the Guardian Court granting interim custody of minor girl to mother---High Court , however, directed the Trial Court to pass an appropriate order for production and visitation of minor to the grand-parents without disturbing her studies---Constitutional petition was dismissed, in circumstances.

Syed Saleem Akhtar for Petitioners.

Waseem Kamran for Respondent No.1.

2021 M L D 1720

[Balochistan]

Before Rozi Khan Barrech, J

UBAIDULLAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Before Arrest Application No.(S)152 of 2020, decided on 6th October, 2020.

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

----S.498---Penal Code (XLV of 1860), Ss.302, 324, 109, 506(2) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, criminal intimidation, common intention---Pre-arrest bail, grant of---Rule of consistency---Scope---Allegation against accused was that he was present along with his brother and father when they murdered one member of the complainant party and injured another---Allegation in the FIR as well as in the statements recorded under S.161, Cr.P.C., was that the co-accused persons had made firing---Accused had neither caused any injury to the deceased or for that matter to the injured eye-witness---Accused persons had made firing---Case against accused came within the ambit of further inquiry---One of the co-accused persons had already been granted bail, therefore, the rule of consistency applied to the case of accused which entitled him to the same relief---Petition for grant of pre-arrest bail was allowed.

Abdul Ghafoor v. The State and another 2020 SCMR 961 and Babar v. The State 2020 SCMR 761 ref.

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

----S.498---Pre-arrest bail---Direct approach to High Court---Scope---Accused, in exceptional circumstances where his life is under threat in case of directly approaching the Trial Court, can approach High Court for seeking pre-arrest bail.

Rais Wazir Ahmed v. The State 2004 SCMR 1167 rel.

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

----S.498---Pre-arrest bail---Purpose---Scope---Extra-ordinary relief of pre-arrest bail is meant for innocent persons to save them from humiliation and disgrace at the hands of police---Purpose of this remedy is to protect liberty and reputation of the citizens particularly in a case where the circumstances reflect that it is a case to be that of further inquiry on the basis of material on record---Power to grant bail under S.498, Cr.P.C., is not additional to or independent to S.497, Cr.P.C., and even while granting pre-arrest bail the provisions contained under S.497, Cr.P.C., are also to be kept in mind---Grant of bail or its refusal is essentially a matter of discretion to be exercised judiciously and not arbitrarily, and the facts of each and every case are to be considered separately and independently---Reasonable and plausible grounds must exist for grant of bail before arrest---Concept of pre-arrest bail was developed on three presumptions; firstly the accused is presumed to be innocent till he is found guilty; secondly, the accused should have a right to prepare his defence and prove his innocence before the Trial Court and thirdly, the accused should not be punished before the findings of his conviction are rendered by the Court.

Muhammad Jahangir Khan and others v. The State and others 2020 SCMR 1270 rel.

Syed Zohaib Shah for Applicant.

Abdul Mateen, DPG for the State.

2021 M L D 1742

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

AMANULLAH---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE SARIAB, QUETTA and 3 others---Respondents

C.P. No.673 of 2018, decided on 2nd July, 2020.

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

----Ss.22-A & 22-B---Powers of Ex-officio Justice of Peace---Registration of second FIR---Scope---Petitioner, accused of kidnapping and murder, claimed himself to be innocent in the FIR lodged against him and came forward to lodge a second FIR for the same incident for which the proposed accused had already lodged an FIR and challan thereof had also been submitted---No second case could be registered for giving a counter-version thereof by an accused---Constitutional petition was dismissed.

Sughran Bibi v. The State PLD 2018 SC 595 rel.

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

----Ss.22-A & 154---Powers of Ex-officio Justice of Peace---Information in cognizable cases---Registration of second FIR---Scope---No direction can be issued for lodging the second FIR when an FIR has already been registered in respect of the incident.

Miss Jameela for Petitioner.

2021 M L D 1763

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

SADAM HUSSAIN alias KOBRA and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.194, Criminal Revision Petition No.18 and Criminal Acquitted Appeal No.210 of 2019, decided on 14th May, 2020.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the brother of the complainant---Ocular account of the incident had been furnished by two witnesses---Prosecution case was that the accused had made firing upon deceased near the shops of two witnesses---Defence had not disputed the shop of both the ocular witnesses near the place of occurrence---Presence of said witnesses was, therefore, natural---Defence had also admitted the presence of ocular witnesses at the place of occurrence---First Information Report was lodged by the complainant on the basis of information conveyed by the witness, however the same was lodged with promptitude without any fabrication---Ocular account was consistent in their statements and despite lengthy cross-examination they remained unshaken---Testimonies of ocular witnesses did not find as tainted or they had motive to falsely implicate the accused---Defence had failed to brought on record to show that the ocular witnesses were inimical to the accused---No plausible reason had been established by the defence to indicate as to why the eye-witnesses and complainant would substitute the accused by leaving the real culprit---Occurrence had taken place in broad day light---Accused was nominated in promptly lodged FIR and his role was also described mentioning kind of weapon used by him---Testimonies of eyewitnesses were natural and convincing one and their statements found corroborated with other evidence---Analysis of prosecution evidence showed that the prosecution had proved the charge against the accused beyond reasonable doubt.

2014 PCr.LJ 206; 2018 SCMR 2092; 2010 PCr.LJ 211; 2016 PCr.LJ 1378 and 2018 SCMR 772 ref.

Khadim Hussain v. State PLD 2010 SC 669 rel.

(b) Criminal trial---

----Witness---Related/interested witness---Statement of related witness---Reliance---Scope---Mere relation of the witnesses with the deceased or complainant per se was no ground to discard and discredit their testimonies, because such witnesses were necessarily not interested witnesses in the true sense of the term---Interested witness was the one who had animosity to falsely involve the accused in a heinous offence like murder---Statement of witness could not be disbelieved on the basis that he was related to the deceased---Interested witness was a person who had motive to falsely implicate an innocent person.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Absconsion---Accused was charged for committing murder of the brother of the complainant---Record manifested that the occurrence had taken place on 05.02.2018 while the accused was arrested on 2nd March, 2019---Said wilful absconsion was to be considered as corroborative piece of evidence as the accused had failed to produce any cogent evidence to show that the same was not wilful or deliberate---Analysis of prosecution evidence showed that the prosecution had proved the charge against the accused beyond reasonable doubt.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Absconsion---Ocular and medical evidence---Corroboration---Accused was charged for committing murder of the brother of the complainant---Testimony of ocular witnesses did not suffer from any disability and was duly supported by medical evidence---Harmony between medical and ocular account was found---Mere assertion that medical evidence was in conflict with oral evidence was not enough rather it was bounded duty of defence to explain as to how and on what ground the medical evidence conflicted with the oral evidence---Unnatural death of the deceased was not disputed by the defence---Analysis of prosecution evidence showed that the prosecution had proved the charge against the accused beyond reasonable doubt---Appeal against conviction was dismissed, in circumstances accordingly.

Khan and another v. State PLD 2004 SC 330 rel.

(e) Criminal trial---

----Witness---Minor contradictions in the statement of witnesses---Scope---Minor contradictions which did creep in with the passage of time, could be ignored.

Muhammad Rauf Atta and Nadeem Sheikh for Appellant/Convict and Respondent No.1 (in Criminal Revision Petition No.18 of 2019).

Nadir Ali Chalgari for Complainant, Petitioner (in Criminal Revision Petition No.18 of 2019) and for the Appellant (in Criminal Acquittal Appeal No.210 of 2019).

Abdul Mateen, Deputy Prosecutor General for the State.

2021 M L D 1800

[Balochistan]

Before Abdul Hameed Baloch, J

MOHSIN RAZA---Applicant

Versus

The STATE---Respondent

Criminal (Bail) Application No.395 of 2020, decided on 7th September, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss. 302, 147 & 149---Qatl-i-amd, rioting, unlawful assembly---Bail, grant of---Allegation against the accused was that he and co-accused committed the murder of the deceased---Accused was nominated in the FIR with the role of strangulating the deceased---Post mortem report showed bruises on nose, right cheek, small scratches on cheek, bruises on face and no injury on skull and body of the deceased---Deceased was a cardiac patient---Cause of death was to be determined after receiving report of Chemical Analysis, meaning thereby that the medical report was not in line with the version given in the FIR---Cause of death was yet to be ascertained---Admittedly, there existed dispute between the parties---Deceased had filed a suit against the accused for illegal construction and violation of building code as well as encroaching upon public road/street which was pending before civil court---Enmity existed, thus false implication could not be ruled out---Admittedly, accused was present empty handed---Nomination in the FIR was no ground for refusal of bail---Circumstances suggested that there was no legal compulsion to keep accused in jail merely that he had been nominated in the FIR and alleged to have committed murder unless reasonable ground appeared to exist---Investigation of the case had been completed and accused had been remanded to judicial custody---Guilt or innocence of accused was yet to be determined by the Trial Court after recording evidence---Cumulative effect of the facts and circumstances of the case created doubt---Bail application was allowed, in circumstances.

Kamal v. The State 2003 YLR 2451; Ghulam Asghar v. The State 1985 SCMR 1946; Ziaullah v. The State 2012 MLD 319; Shahid v. The State 1994 SCMR 393; Perwaiz v. The State 1995 PCr.LJ 544; Khalida Begum v. Muhammad Rashid Khan PLD 1995 SC 34 and Kaleemullah v. The State 2013 YLR 1837 and Fida Hussain v. The State 2012 YLR 1884 ref.

Allah Ditto v. The State 2011 PCr.LJ 485; Saqib Abbas v. The State 2009 YLR 1081; Subeh Sadiq alias Saabo alias Kalu v. State 2011 SCMR 1543; Tariq Bashir v. The State PLD 1995 SC 34 and Haday Khan v. The State 2019 YLR (Note) 96 rel.

(b) Criminal trial---

----Bail---Benefit of doubt---Principle---Benefit of slightest doubt would go to the accused even at bail stage.

Muhammad Faisal v. The State 2020 SCMR 971 rel.

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

----S.497---Bail---Observations made in bail order granting/refusing bail were tentative in nature and same would not influence merits of the case at the trial.

Tariq Ali Tahir for Applicant.

Abdul Karim Malghani, State Counsel and Tahir Hussain Khan for the Complainant.

2021 M L D 1979

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

Mir MUHAMMAD ALI and others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN, through Chief Secretary and 7 others---Respondents

Constitution Petition No.(S)68 of 2012, decided on 18th November, 2020.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Laches---Scope---Grievance of petitioners was that due to tribal feud between their tribe and another, the property of petitioners' tribe was damaged by the rival party---Brother of the Chief of Tribe (respondent) filed constitutional petition; whereafter, filed contempt application before the High Court---In contempt application, the official respondents submitted report wherein detail of damages was estimated---Finance Department released the amount of damages and placed the same at the disposal of Deputy Commissioner for grant of compensation---Deputy Commissioner handed over the cheque to the respondent---Held, that petitioners were in close league with the respondent---Respondent had filed the constitutional petition in the year 2002, but the petitioners had remained mum and had not even filed an application for impleading them as party---Petitioners had failed to assign any cogent reason for silence during such period---Equity would aid vigilant, not indolent---Constitutional petition was dismissed, in circumstances.

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

(b) Equity---

----Delay would defeat the equity.

Nemo for Petitioners.

Ahmed Ali Baloch, Additional Advocate General for Respondent Nos.1 to 7.

Miraj Muhammad for Respondent No.8.

2021 M L D 2123

[Balochistan]

Before Muhammad Ejaz Swati, J

MUHAMMAD SADDIQ and another---Petitioners

Versus

GHULAM SARWAR and 3 others---Respondents

Civil Revision No.226 of 2020, decided on 30th December, 2020.

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

----S.35(c)---Rescission of agreement---Suit for specific performance---Execution petition---Decree holder was directed to make payment of balance consideration amount---Petitioner/judgment debtor contended that respondent/decree holder had failed to make payment of balance consideration amount within two months of passing of judgment/decree and agreement ceased to exist---Validity---If condition of the depositing amount mentioned in the decree was not fulfilled, then the said agreement would cease to exist or rescind, however, certain exceptions were there including the circumstances beyond the control of the decree holder or due to stay of proceeding by some court---Petitioner/judgment debtor filed objection and lingered on the matter from one pretext to another---Respondent/decree holder on various dates produced cheque for making payment of sale consideration which either could not be paid due to absence of the petitioner or he was reluctant to receive the same---Execution application was also consigned to record due to stay order---Executing Court was required to direct the decree holder to deposit the sale consideration amount in the CCD account of the Court, but had not ordered---Decree holder could not be prejudiced due to the act of Court---Decree holder was directed by High Court to deposit balance consideration amount within 15 days---Revision petition was disposed of accordingly.

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

----Ss.4 & 5---Specific performance---Execution petition for deposit of amount---Twenty-seven (27) days' delay in registration---Closure of Courts---Summer vacation---Respondent/decree holder filed execution application on 5th June, but at that time the business of the Court was closed due to summer vacation, therefore, said petition was registered on 8th July---Courts remained closed during summer vacation for one month and District Court mainly conducted criminal cases and stay matters in civil cases---Section 4 of the Limitation Act, 1908 was attracted---Application could not be termed beyond the period of limitation.

Muhammad Farooq for Petitioners.

Muhammad Riaz Ahmed for Respondent No.1.

Mir Ahmed Ali Baloch, Additional Advocate General for Official Respondent.

2021 M L D 790

[Sindh Revenue Board]

Before Tameezuddin Khero, Member (R&S)

MUHAMMAD AKRAM through Attorney---Appellant

Versus

DOORO and others---Respondents

Record of Rights Appeal No.33 of 2015, decided on 8th October, 2019.

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

----S.161---Colonization of Government Lands (Sindh) Act (V of 1912), S.10---Issue of statements of conditions of tenancies---Scope---Appellant assailed order passed by Executive District Officer (Revenue) whereby grant of land in his favour was cancelled---Validity---Harap grant under the Land Grant Policy could only be made to a person who was a hari by profession or had worked as a hari for ten years and he had either to be landless or small holding farmer---No provision for allotment of land to a non-hari or government servant existed in the Land Grant Policy---Cancellation of the land grant order by Executive District Officer (Revenue) was maintained---Appeal was disposed of accordingly.

1986 MLD 11 distinguished.

(b) Constitution of Pakistan---

----Arts. 4, 189 & 201---Right of individuals to be dealt with in accordance with law---Decisions of Board of Revenue---Scope---Courts are bound to decide the matter within the four corners of law, as they are not law givers---Only decisions of High Courts in the relevant province and Supreme Court are binding on lower courts---No reliance can be placed on the decision of the Board of Revenue as binding decisions---Such decision can, however, be used as guiding principles in Revenue Courts and offices subordinate to the Board of Revenue.

Jessaram for Appellant.

2021 M L D 1946

[Supreme Court (AJ&K)]

Before Kh. Muhammad Naseem, J

MUJAHID HUSSAIN NAQVI---Appellant

Versus

REGISTRAR AZAD JAMMU AND KASHMIR SUPREME COURT and others---Respondents

Civil Appeal No.475 of 2020, decided on 16th July, 2021.

(On appeal from the order of the Registrar, dated 15-10-2020, in Application for Review No.Nill/2020).

Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O.XLVI, Rr.2 & 9---Azad Jammu and Kashmir Interim Constitution (VIII of 1974), Art.42-D---Review of judgment---Third review application---Scope---Appellant assailed order passed by the Registrar, Azad Jammu and Kashmir Supreme Court, whereby he had returned his application for review of judgment---Validity---Controversy in the matter was finalized by the Court in the year 2012 whereby the appeal filed by Government was accepted---Appellant thereafter had filed an application under S.42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974, read with O.XLIII, Rr. 1 to 5 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, and had sought review of the judgment, which was dismissed---Appellant had filed another application for review of the judgment and the same was also dismissed---Appellant, filed yet another application for review which was returned by the Registrar on the ground that the application was submitted after a lapse of long time and that the appellant had sought review of the judgment which had attained finality---Held; appellant had agitated same grounds in the review application which had already been resolved by the Supreme Court---Appellant wanted to re-open the case after a pretty long time---Order passed by Registrar was in accordance with law---Appeal was dismissed.

Muhammad Rashid v. Azad Jammu and Kashmir Government and 20 others PLD 1987 SC (AJ&K) 60; Chairman Pearl Development Authority v. Tariq Inqalabi and 7 others 2005 PLC (C.S.) 1074; Taskeen Naz v. Fehmida Begum and 11 others 2016 PLC (C.S.) 1151; Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Sangram Singh Appellant v. Election Tribunal, Kotah and another AIR 1955 SC 425; Azad Government and 4 others v. Muhammad Siddique Haideri 2000 PLC (C.S.) 714 and Chairman Azad Jammu and Kashmir Council v. Abdul Latif and 5 others 1997 MLD 2926 distinguished.

University of Azad Jammu and Kashmir Muzaffarabad and 6 others v. Engineer Muhammad Khalid 2004 SCR 84 and Major (Rtd.) Rafique Ahmed Durrani v. Azad Jammu and Kashmir University and 5 others 2005 SCR 373 rel.

Appellant in person.

Nemo. for Respondent.