MLD 2022 Judgments

2022 M L D 76

[Federal Shariat Court]

Before Muhammad Noor Meskanzai and Khadim Hussain M. Shaikh, J

Syed NAJAM-UD-DIN CHISHTI---Appellant

Versus

MUHAMMAD IDREES and another---Respondents

Criminal Appeal No.05-Q of 2019, decided on 6th May, 2021.

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

----Ss.302(b), 324, 109 & 34---Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979), Art. 17(4)---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, haraabah---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused were charged for committing murder of the deceased and causing injury to the complainant during dacoity---Prosecution case rested on the evidence of complainant, who had not named the present respondent in his FIR and/or even in his deposition before the trial Court, rather he went on to depose that there were two culprits, who had committed the offence and he had not identified them due to the fact that their faces were muffled---Except the retracted confessional statements of convicted co-accused persons, which would merely be a corroboratory piece of evidence, there was no other direct or circumstantial evidence, connecting accused-respondent with the commission of the subject crime---No evidence was available on record to record conviction against accused-respondent---Trial Court, in circumstances, was right in acquitting accused-respondent by extending him benefit of doubt as the prosecution had failed to prove its case against him beyond the reasonable doubt---Appeal was dismissed accordingly.

Zulfikar Ali Bhutto v. The State PLD 1979 SC 53; Atlas Khan v. State 1995 PCr.LJ 1996; Sheri Zaman and others v. The State 1989 PCr.LJ 1526; Zahir-ud-Din v. The State 1976 PCr.LJ 625; Faisal Khan v. The State 2010 PCr.LJ 192 and Hazrat Bilal v. The State and another 2000 PCr.LJ 865 ref.

(b) Criminal trial---

----Confession---Scope---Confessional statement of one accused could not form sole basis for conviction of another accused as being a corroboratory piece of evidence it could not suffice itself to convict an accused on a capital charge.

(c) Appeal against acquittal---

----Interference---Scope---Difference is to be maintained in an appeal from conviction and an appeal against acquittal---In appeal against acquittal, interference is to be made only when there is non-reading and gross mis-reading of the evidence resulting into miscarriage of justice and on perusal of the evidence no other decision can be given except that the accused is guilty.

Yar Muhammad and 3 others v. The State 1992 SCMR 96; Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329; State/Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo 1993 SCMR 585; Muhammad Yaqoob v. Manzoor Hussain and 3 others 2008 SCMR 1549 and State and others v. Abdul Khaliq and others PLD 2011 SC 554 rel.

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

----Ss.302 (b), 324, 109 & 34---Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979), Art. 17(4)---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, haraabah---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Appeal not filed by aggrieved person---Scope---Accused were charged for committing murder of the deceased and causing injury to the complainant during dacoity---Admittedly, appellant was neither injured nor was a witness in the case---Appellant, claiming himself to be the brother of complainant, had filed appeal against appeal---Memo of the appeal revealed that name of father of appellant was different than the name of father of the complainant, thus the claim of the appellant that he was the brother of the complainant was apparently absurd---Appellant had also not been able to satisfy the Court as to how he was an aggrieved person to agitate acquittal of the accused-respondent, who had not been implicated even by injured complainant, who was the sole eye witness of the occurrence, in his FIR and in his statement before the Trial Court---Appellant could hardly be termed an aggrieved person to agitate acquittal of accused-respondent---Appeal was dismissed, in circumstances.

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

----Ss.302(b), 324, 109 & 34---Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979), Art. 17(4)---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, haraabah---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Time barred appeal---Scope---Accused were charged for committing murder of the deceased and causing injury to the complainant during dacoity---Perusal of the certified copy of the impugned judgment, filed by the appellant with the appeal, revealed that the impugned judgment was rendered on 22.05.2019, copy whereof was delivered to the appellant on 24.05.2019 and on excluding the period of two days spent in obtaining certified copy of the impugned judgment, the appeal was to be filed latest by 24.06.2019, but it was filed on 17.07.2019 i.e. after 53 days of delivery of the certified copy of the impugned judgment to the appellant---Record further revealed that on 30.08.2019, on the request of appellant, the Criminal Revision filed by him was converted into acquittal appeal, when he also sought permission to file an application for condonation of delay in filing the appeal---However, appellant had not filed such an application till date, although the period of more than 20 months had elapsed---Even in his appeal, the appellant had not offered any explanation for such an inordinate delay of 23 days in filing of the appeal---Appeal was dismissed being time barred.

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

----S.5---Condonation of delay---Appeal against acquittal---Delay in filing appeal---Scope---Delay of each and every day with justification is to be explained even in a case, attracting provisions of S.5 of Limitation Act, what to say about the case in which the Code of Criminal Procedure, 1898, itself provided period of limitation for filing the appeal against an acquittal order.

Noor Hussain v. Muhammad Salim 1985 SCMR 893 rel.

Syed Ayaz Zahoor for Appellant.

Qasim Khan for Respondent.

Ameer Hamza Mengal, Deputy Prosecutor General, Balochistan for the State.

2022 M L D 132

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

SAGHEER AHMED---Appellant

Versus

PROVINCIAL GOVERNMENT through Chief Secretary G.B. and 5 others---Respondents

C.S.A. No.03 of 2019, decided on 30th September, 2020.

Land Revenue Act (XVII of 1967)---

----S.172---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for cancellation of order, declaration and injunction---Second appeal---Rejection of plaint---Civil Court, jurisdiction of---Cancellation of mutation was assailed by appellant/plaintiff before Civil Court---Plaint was rejected by Trial Court for want of jurisdiction---Validity---Civil Court lacked jurisdiction to entertain the matter---Revenue authorities cancelled mutation, therefore, proper remedy available to appellant/plaintiff was that he should have filed appeal against his order in higher revenue forum instead of filing civil suit in Trial Court---After exhausting revenue forum, appellant/plaintiff if failed to get redressed his grievance could file suit in Trial Court--- Both the Courts below did not commit any illegality or irregularity while rejecting suit/plaint of appellant/plaintiff under O.VII, R.11, C.P.C. through their judgments---High Court in exercise of appellate jurisdiction declined to interfere in concurrent findings recorded by two Courts below, which were in accordance with law---Second appeal was dismissed in circumstances.

Mir Zeeshan Akhlaq for Appellant.

Dy. A.G. for Respondents Nos.1 to 5.

Manzoor Hussain for Respondent No.6.

2022 M L D 169

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

The STATE---Petitioner

Versus

ZAHID and 3 others---Respondents

Criminal Miscellaneous No.72 of 2020, decided on 3rd June, 2020.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss.337-A, 504, 34 & 354-A---Shajjah, intentional insult with intent to provoke breach of the peace, common intention, assault or criminal force to woman and stripping her of her clothes---Bail, cancellation of---Refusal---Scope---Allegation against accused persons was that they slapped the sister of complainant and by using abusive language also removed her chaddar---Sections 337-A & 504, P.P.C., were bailable---Section 354-A, P.P.C., was not prima facie attracted to the case---Section 354-A, P.P.C., provided that to attract the provisions of the section, two conditions must be fulfilled: Firstly, there should be stripping of clothes and secondly the victim in that condition be exposed to the public view---To attract the provisions of the section both the conditions must co-exist---Sessions Judge had rightly granted bail to the accused persons---Petition for cancellation of bail was dismissed.

Deputy Advocate-General for the State/Petitioner.

2022 M L D 341

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, CJ and Ali Baig, J

Mst. SHAMSHAD BEGUM and 2 others---Petitioners

Versus

Mst. LAILA KHANUM and others---Respondents

Civil Revision No.176 of 2019, decided on 10th September, 2020.

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

----S.42---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and possession---Rejection of plaint---Scope---Petitioners assailed the dismissal of their application under O.VII, R.11, C.P.C.---Validity---Petitioners had filed the application on the sole ground that suit was barred by time---Suit of the respondents was prima facie within time---Relief sought by the respondents required proof---Trial Court had rightly dismissed the application vide impugned order---Revision petition was dismissed, in circumstances.

(b) Limitation---

----Question of limitation is not a pure question of law rather same is a mixed question of law and facts, which cannot be resolved/settled in absence of evidence.

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

---O.VII, R.11---Rejection of plaint---Limitation---Scope---When plaintiff raises factual controversy in the plaint, he cannot be non-suited at the very inception of the suit on the basis of limitation---After framing issues and recording of evidence, the Trial Court can legitimately decide about the question of limitation and other questions involved in the suit.

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

----O.VII, R.11---Rejection of plaint---Limitation---Scope---Rejection of plaint on the ground of limitation at premature stage is not permissible.

2011 CLC 1946 ref.

Ali Dad for Petitioners.

Basharat Ali and Zahid Ali Baig for Respondents.

2022 M L D 377

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

SADDAM HUSSAIN and another----Petitioners

Versus

The STATE----Respondent

Criminal Miscellaneous No.71 of 2020, decided on 13th May, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 380 & 457---Juvenile Justice System Ordinance (XXII of 2000), S. 10 [since repealed]---Theft in dwelling house, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment---Bail, grant of---Scope---Accused persons were alleged to have been caught red handed by the police with articles stolen from a water pump---Accused persons were juvenile at the time of their arrest and under the provisions of S.10(7)(c) of the Juvenile Justice System Ordinance, 2000, a child, who for commission of an offence, had been detained shall be released on bail after he had been in continuous detention for a period exceeding four months and whose trial for such an offence had not been concluded---Accused persons were entitled for concession of bail as they were behind the bars for the last six months---Offence under S.380, P.P.C., did not fall within the ambit of prohibitory clause of S.497, Cr.P.C., and grant of bail in such like cases was a rule and refusal was an exception---Section 457, P.P.C., was not prima facie attracted to the case of accused persons---Petition for grant of bail was allowed, in circumstances.

Irfanullah for Petitioners/accused.

Deputy Advocate General for Respondent/State.

2022 M L D 597

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ

LIAQAT ALI and 3 others---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No.133 of 2021, decided on 18th November, 2021.

(a) Criminal Procedure Code (XLV of 1860)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 302 &109---Qatl-i-amd, abetment---Bail, dismissal of---Although the petitioners/accused were not directly nominated in the promptly lodged FIR but during the investigation of the case the petitioner/accused had confessed his guilt before the police stating the real fact of the occurrence---Police had recovered the weapon of offence i.e. wooden stick on the pointation of said accused---Said accused/ petitioner was prima facie connected with the alleged crime, which fell within the ambit of the prohibitory clause of S.497, Cr.P.C, therefore, the said accused petitioner was not entitled for concession of bail---Bail petition to the extent of accused/petitioner was dismissed, in circumstances.

(b) Criminal Procedure Code (XLV of 1860)---

----S.497 (2)---Penal Code (XLV of 1860), Ss.302 & 109---Qatl-i-amd, abetment---Bail, grant of---Further inquiry---Co-accused were admittedly not present at the place of occurrence at time of occurrence rather they were residing at some other places---No overt act had been attributed to the co-accused in the FIR, rather it had been stated by some witnesses in their statements recorded under S.161, Cr.P.C that the said co-accused had directed the principal accused to be remained vigilant in their own house as the deceased had nefarious design towards their sister---Present case to the extent of co-accused/petitioners required further inquiry and they were entitled for concession of bail as there were no reasonable grounds for believing that they had committed murder of deceased---Bail petition to the extent of co-accused/petitioners was allowed, in circumstances.

Islam Uddin and Irfan Ullah for Petitioners.

Islam Hussain for the Complainant.

Dy. A.G for the State.

2022 M L D 719

[Gilgit-Baltistan Chief Court]

Before Malik Inayat-ur-Rehman, J

FEROZUDDIN---Appellant

Versus

ASHER HAFIZ GHUMMEN and another---Respondents

Civil Miscellaneous No.339 of 2021, decided on 21st October, 2021.

Civil Procedure Code (V of 1908)---

----O.XVII, R.3---Court may proceed notwithstanding either party fails to produce evidence, etc---Scope---Plaintiff assailed the dismissal of his suit under O.XVII, R.3, C.P.C.---Held, that plaintiff had failed to produce his evidence for several dates when fresh notice under O.XVII, R.3 of C.P.C., with last chance was allowed to the plaintiff and the case was adjourned, but still the plaintiff had failed to produce his evidence---Even otherwise, the case had remained pending for more than 5 years, which showed the delaying, non-serious and casual conduct of the plaintiff, therefore, the plaintiff had failed to establish grounds of his appeal---Appeal lacked merit and the same was dismissed.

Shah Faisal for Applicant/Appellant.

Muhammad Umer Farooq and Ghulam Nabi for Respondents.

2022 M L D 793

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ

Raja HIDAYAT ALI KHAN---Petitioner

Versus

JAFFAR ALI---Respondent

Civil Revision No.34 of 2019, decided on 4th November, 2021.

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

----S.8---Suit for recovery of possession---Scope---Plaintiff claimed that he was owner of the suit land which was given to the defendant by fixing rent for rendering services of Fatiha Khawani and Matamdari till the year 2015---Trial Court and appellate court concurrently dismissed the suit---Validity---Plaintiff had failed to adduce relevant, cogent, reliable and credible evidence before the Trial Court rather irrelevant documents and oral evidence was produced before the Trial Court---Suit for delivery of possession was also time barred as the disputed property was in possession of defendant since 1998 and the suit was filed in the year 2011---Appellate court had not committed any material irregularity and illegality while passing the impugned judgment/decree warranting interference by Chief Court by exercising jurisdiction under S. 115, C.P.C.---Revision petition was dismissed.

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

----S.115---Revision---Concurrent findings---Scope---Ordinarily the concurrent findings of facts are not disturbed in exercise of revisional jurisdiction unless the findings of the two courts below are totally perverse and violation of the provisions of law as well as against the material available on file.

Hafiz Abdur Razzaq for Petitioner.

Jaffar Ali and Shujaat Ali for Respondent.

2022 M L D 887

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ and Johar Ali, J

MUHAMMAD RAZI alias MUHAMMAD KHALIL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.17 of 2021, decided on 1st December, 2021.

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

----S.302(b)---Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, possessing unlicensed weapon---Appreciation of evidence---Sentence, reduction in---Accused was charged for committing murder of the brother of the complainant by firing---Ocular account of the incident had been furnished by three eyewitnesses---Record showed that names of two eyewitnesses were appearing in the promptly lodged FIR---After meticulously examining statements of the said eyewitnesses, it was found that they were natural witnesses and discrepancies in their statements were very minor---Presence of the said eyewitnesses at the place of occurrence was established---Said eyewitnesses were thoroughly cross examined by the defence but their statements could not be shattered by defence---Although eyewitnesses were related to the deceased but the relationship with the deceased was no ground for discarding their evidence as relationship with the deceased did not make a witness interested one and testimony of such witness who otherwise seemed to be truthful witness could not be rejected on the said ground if he had no reasons to falsely implicate the accused in the commission of offence---Version of said witnesses was further corroborated/supported by recovery of weapon of offence i.e. 30 bore pistol on the pointation of accused in presence of marginal witnesses, blood stained earth, empty shells of 30 bore pistol from the place of occurrence and positive report of Fire Arms Expert---Medical account on record had been furnished by the statement of Medical Officer who had conducted autopsy on the dead body of the deceased which also supported the prosecution version---Circumstances established that the prosecution had proved its case against the accused, however keeping in view juvenility/minority of the accused sentence of imprisonment was converted/reduced from life imprisonment to fourteen years---Appeal was dismissed with modification in sentence.

2004 PCr.LJ 1292; 2004 MLD 1765 and 2008 SCMR 1527 rel.

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

----S.302(b)---Arms Ordinance (XX of 1965), S. 13---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, possessing unlicensed weapon---Appreciation of evidence---Defence plea---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Accused had got recorded his statement on oath under S.340(2), Cr.P.C., wherein he had denied allegation of murder of deceased stating that at the time of occurrence he was at his home with some guests---Accused had also produced two defence witnesses in his defence who had also narrated the same story/version of accused---Statements of said defence witnesses were not reliable/trustworthy and not confidence inspiring---Circumstances established that the prosecution had proved its case against the accused, however keeping in view juvenility/minority of the accused sentence of imprisonment was converted/reduced from life imprisonment to fourteen years---Appeal was dismissed with modification in sentence.

Atta ur Rehman for Appellant.

Dy. Advocate General for the State assisted by Sher Madad Khan for the Complainant.

2022 M L D 968

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

ESSA KHAN---Petitioner

Versus

Mst. LAL BEGUM---Respondent

Civil Revision No.33 of 2019, decided on 1st December, 2021.

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

----S.5, Sched.---Suit for dissolution of marriage on basis of Khula---Respondent/wife claimed certain amount taken as loan from Bank for construction of house; Rs.50,000/- marriage expenses and Rs.25525/- dower amount out of which only 2000/- was paid---Trial Court dismissed the suit of respondent/wife---Appellate Court accepted her appeal, dissolved her Nikah, however, required her to pay Rs.100,000/- to the petitioner/husband in consideration of dissolution besides waiving remainder of her dower as she was the seeker of dissolution without resorting to conciliatory attitude and without making some sacrifice in saving the marital bond/welfare of her own children---Petitioner filed the revision petition to get the impugned judgment/decree of the appellate Court set aside---Validity---Dispute between the parties was going on since long soon after their marriage which had been shown through evidence---Parties did not recall their mind to enter into compromise despite passing of 5 long precious years of their lives---Despite her claim in plaint that she was spending money from her salary for expenses of children, she did not file appeal/revision against decision of the appellate Court for reduction of the fixed amount etc., which clearly showed that she was unable to survive her life with the petitioner---Respondent/wife tried two times for committing suicide and further disclosed her aim regarding losing her life in case of non-dissolution of her marriage---Revision petition was dismissed accordingly.

(b) Islamic Law---

----Khula---Personal reasons of wife---Disliking---Restoration of dower---Scope---Right of Khula accrues to wife for the redressal of irreconcilable grievance against her husband---Need to seek Khula can arise in two situations: firstly, the wife may be aggrieved of unbecoming attitude of her husband; and secondly, she may for her own personal reasons such as abhorrers/disliking for the husband to claim Khula---Where the disliking/hatred of the wife is not because of coercion/duress or other un-towards behaviour of the husband, the wife may seek separation by the restoration of dower and where the wife was constrained to seek divorce because of the obnoxious nature/behaviour of the husband.

(c) Islamic Law---

----Khula---Hatred, factum of---Determination---Scope---No yardstick can be fixed to define/determine factum of hatred---Emotion of hatred can be inferred on the basis of circumstances of each case, especially from the statement of wife recorded by Court---Court had to only observe whether husband and wife can live together in order to perform their marital obligation---Peak of hatred /aversion would be that wife submits that Court may hang her and whatever may be the circumstances, she is not prepared to live with her husband.

Muhammad Akram Baig for Petitioner.

2022 M L D 1002

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmed, J

BISMILLAH KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Revision No.04 of 2021, decided on 4th December, 2021.

Criminal Procedure Code (V of 1898)---

----S.426---Suspension of sentence, pending appeal---Scope---Accused sought suspension of his sentence---Court had to be closed for a period of two months on account of winter vacations, hence, there was no chance of fixation of main petition in near future---Accused had remained on bail during his trial and there was no allegation that he had misused the concession of bail during his trial---Since the sentence awarded to the accused was short one, therefore, chances could not be ruled out that the main revision of the accused could not be heard till the period of coming six months---If it happened so, then under S.426(1-A)(a), Cr.P.C., the accused would be entitled for bail on lapse of statutory period of six months---Petition was allowed, sentence awarded to the accused was suspended and he was ordered to be released on bail.

Ali Haider and Usama Zubairi for Petitioner.

Muhammad Zakir, DAG for the State assisted by Liaqat Ali Boto for the Complainant.

2022 M L D 1008

[Gilgit-Baltistan Chief Court]

Before Malik Inayat ur Rehman and Raja Shakeel Ahmed, JJ

MUHAMMAD SHAH JAHAN and 4 others---Appellants

Versus

COLLECTOR/DEPUTY COMMISSIONER DIAMER and 6 others---Respondents

C.F.A. No.38 of 2019, decided on 7th December, 2021.

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

----Ss.9 & 18---Civil Procedure Code (V of 1908), O.XIII, R.2---Production of document at belated stage---Sufficient cause---Reference was filed by petitioners against award passed by the Collector Land Acquisition---Application for production of private documents (agreements and award) was filed by petitioners during pendency of the said reference---Referee/District Judge partially dismissed the said application---Appellant contended that act of dismissal would adversely affect to reach at the right conclusion/decision of Court; that documents (two separate agreement and one arbitration award) had been accepted/admitted by the parties to the agreement and had also no objection by either party; and that the said documents were termed as admitted documents having relevance with the reference petition---Validity---Alleged documents were private documents, hence it could safely be inferred that the same were in possession of the appellant at the time of filing the reference petition---Appellants had not averred in reference petition that the alleged documents were not in their possession and they would soon after recovery submit the same before the Trial Court---Neither any good reason nor sufficient cause was mentioned in the application of appellants---Stamp papers were issued in different dates---Witnesses shown in the agreement had not put their signatures on the said agreement---Documents were result of afterthought and appellants had prepared the same just to strengthen their cause---Said documents were not public documents hence no presumption of truth was attached thereto---Impugned order was not an appealable order---Although the impugned order could be assailed through revision petition but the appellants failed to submit the relevant documents along with the appeal---Appeal was dismissed accordingly.

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

----O.XIII, R.1---Non-compliance of the mandatory provision---Sufficient/good cause---Scope---Rule 1 of O.XIII of Civil Procedure Code, 1908, is mandatory---Parties/pleaders shall produce, at first hearing of suit, all documentary evidence of every description in their possession/power, on which they intend to rely---In case of non-compliance of the said rule, no documentary evidence shall be receivable at subsequent stage unless good cause is shown to the satisfaction of the Court for its non-production.

Shafqat Wali Khan for Appellants.

2022 M L D 1335

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, CJ

Mst. ZULEKHA through L.Rs.---Petitioners

Versus

ALI MUHAMMAD and another---Respondents

Revision Petition No.212 of 2019, decided on 24th February, 2021.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O. II, R. 2---Suit for declaration---Suit to include the whole claim---Relinquishment of part of claim---Omission to sue for one of several reliefs---Scope---Plaintiff instituted a suit for declaration and possession claiming therein the property left by her brother, who had died issue-less---Validity---Prior to filing the present suit, the plaintiff in the year 1990 had preferred a suit for her share from the legacy of her father despite having knowledge regarding the issue-less death of her brother in the year 1989---Cause of action to file the suit for her share in the legacy of her brother had accrued to the plaintiff soon after the death of her brother---Plaintiff in her previous suit had not claimed her share in the legacy of her brother---As such provisions of O.II, R.2, C.P.C. were fully attracted in the suit---None was to be twice vexed on the same cause of action and there had to be an end to litigation---Even otherwise the brother of plaintiff had alienated his total share during his lifetime and the plaintiff had given wrong statement in respect of her legacy---Revision petition was dismissed.

Syed Riaz Hussain Kazmi for Petitioners.

Zafar Iqbal for Respondents.

2022 M L D 1369

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ and Johar Ali, J

Mst. SAIRA and 3 others---Petitioners

Versus

FARYAD KHAN and others---Respondents

Writ Petition No.18 of 2021, decided on 8th December, 2021.

Civil Procedure Code (V of 1908)---

----Ss.114 & 152---Review---Amendment of judgments, decrees or orders---Scope---Petitioners/Plaintiffs filed suit for declaration and possession being share holders in the suit land---Co-sharers had sold out some portion of suit land to other defendants before filing of the suit, although they were not entitled to sale out the common land/inheritance---Trial Court had rightly declared sale of share in legacy of petitioners to other defendants as without lawful authority---After declaring the sale to be void ab initio there was no option before the Trial Court except to grant decree as prayed for against all defendants but the Trial Court had only passed decree against the co-sharers---Petitioners' application for review of judgment was dismissed being without jurisdiction and against the own findings of the Trial Court which was not legally maintainable in the eyes of law---Writ petition as well as review petition was accepted.

Ehsan Ali and Jahangir Shah for Petitioners.

Irfan Ullah and Umar Hussain for Respondents Nos.4 to 15, 18 and 19.

2022 M L D 1393

[Gilgit-Baltistan Chief Court (Skardu Bench]

Before Ali Baig, CJ and Raja Shakeel Ahmed, J

SAKINA and 39 others---Petitioners

Versus

PROVINCIAL GOVERNMENT GILGIT BALTISTAN through Chief Secretary Gilgit and 3 others---Respondents

Writ Petition No.07 of 2017, decided on 5th November, 2021.

Land Acquisition Act (I of 1894)---

----S.18---Reference to Court---Determination of compensation---Similarly placed land owners---Scope---Question before Chief Court was whether the benefit which had accrued to the land owners who had filed reference in Referee Court and filed appeal in Chief Court for further enhancement of compensation vis-à-vis their acquired land could also be extended to the similarly placed land owners who had not filed any such reference or appeal in the Chief Court---Held; non-appealing land owners were also entitled to the same treatment which had been given by the appellate court to the similarly placed appealing land owners---Such would be unjust to deprive the non-appealing land owners from receiving benefit of the judgment merely for the reason that they had not filed reference or appeal---Legal and moral obligation cast on the authorities not to grudge payment of compensation to non-appealing land owners according to the rate judicially determined for the land in question---Writ petition was allowed.

2015 CLC 97; 1998 SCMR 2197 and PLD 2007 SC 620 ref.

PLD 2010 SC 82 rel.

PLD 2010 SC 878 and 1999 SCMR 2009 fol.

Syed Muhammad Ali Shah and Zahid Abbas for Petitioners.

Additional Advocate General for Respondents.

2022 M L D 1583

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

GOHAR AMAN---Petitioner

Versus

SHAH NAZIM---Respondent

Civil Revision No.90 of 2017, decided on 18th November, 2021.

Civil Procedure Code (V of 1908)

----S.11---Res judicata-----Essential conditions---Principle of estoppel----Scope---Rule of res judicata was based on the consideration that same cause should not be tried for the second time between the same parties and there must be the end of litigation between the parties---Cause of action in a suit merged in the judgement---No second suit could be filed on the basis of same cause of action unless it was recurring in nature---Essential condition required to be fulfilled to establish the plea of res judicata would be that matter in issue and the material point in dispute between the parties in the earlier litigation was directly and substantially in issue in subsequent litigation----Such was essential to show that earlier decision in matter was based on proper adjudication on the relevant issue either of law or fact or mixed issue of law and fact---Decision on an issue of fact based on evidence and decision on issue of law on the basis of set of facts directly and substantially by a competent Court is certainly res judicata---Adjudication on question of law or fact or mixed question of law and fact on the basis of established set of facts and determination of such question in judgement would essentially be res judicata---Court shall not try a suit or issue involving a matter no longer open to contest ,either on question of law or fact by reason of an earlier decision if the matter in issue in the subsequent suit directly and substantially was the same which was involved in earlier litigation---In the present case, parties of previous suit and the present suit were same, Property which was involved in between the parties was also same and claim of ownership of petitioner/plaintiff had been decided in pervious suit---Present petitioner failed to prove his contention in pervious suit before competent court and had not even filed appeal when the material issue of ownership was decided against petitioner---Principle of estoppel also applied---Petitioner/plaintiff couldn't resile from the admissions made during his deposition before Trial Court while recording statement on oath during the proceedings of previous suit---Civil revision was dismissed.

PLD 2015 Sindh 39 rel.

1994 MLD 126; 1994 CLC 1248 and 1994 SCMR 826 ref.

Muhammad Issa for Petitioner.

2022 M L D 1595

[Gilgit-Baltistan Chief Court]

Before Malik Inayat-ur-Rehman, J

SHAHZADA HASSAN and 4 others---Petitioners

Versus

Mst. GUL ADAM---Respondent

Civil Revision No.180 of 2019, decided on 25th October, 2021.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration and possession---Scope---Plaintiff sought declaration with possession of her share in the suit land and claimed 1/9th share from the legacy of her father---Trial Court partially decreed the suit and held that she was entitled to 1/11th share---Appellate Court dismissed the appeal filed by defendants---Validity---Plaintiff was entitled to receive 1/11th share from the whole legacy left behind by her father but the plaintiff had relinquished her claim in the properties held by the children of her deceased brother and had also effected compromise with another share holder, therefore, her share in the suit land had fallen and reduced to 1/22nd---Impugned judgments warranted interference of Chief Court to the extent of declaration in favour of plaintiff---Revision petition was partially accepted.

Munir Ahmed for Petitioners.

Sher Madad for Respondent.

2022 M L D 1750

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, CJ

SAIMA BATOOL ZEHRA and 2 others---Petitioners

Versus

HAMID HUSSAIN---Respondent

Revision Petition No.54 of 2019, decided on 24th February, 2021.

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

----S.5, Sched.---Suit for maintenance---Scope---Respondent / defendant was married to the petitioner/plaintiff and out of the said wedlock two children were born---Relations of the parties got strained, petitioner (wife) left the house of respondent (husband) and remained in her parents' house---Ultimately, the parties entered into an agreement---Petitioner preferred suit on the basis of compromise deed by asserting that the respondent had failed to comply with the conditions of the compromise deed---Trial Court partially decreed the suit whereas Appellate Court dismissed the suit---Validity---Compromise deed was an un-attested document and was not exhibited---Petitioner had left the house of her husband due to some domestic problems and had refused to come back to her husband's home---Attorney of petitioner had admitted during cross-examination that the petitioner was not willing to go with the respondent---Petitioner could not claim her maintenance without performing conjugal rights, hence, she was not entitled to maintenance and the judgment passed by Appellate Court to the extent of petitioner was maintained---Record transpired that the respondent had failed to provide maintenance to his children, therefore, the suit was liable to be decreed to the extent of his children---Suit was decreed to the extent that minors were held entitled to a certain amount of maintenance allowance---Petition was disposed of accordingly.

(b) Islamic law---

----Maintenance---Scope---Husband is bound to maintain his wife and children but right of maintenance of wife is subject to the condition that she must be faithful to the husband and obey his reasonable order, if she refuses to him, the husband is not bound to maintain her---Wife is not entitled to maintenance when she lives apart from the husband except for non-payment of her dower in which case her right of maintenance continues even though she is living apart from him.

(c) Islamic law---

----Maintenance---Father is duty bound to maintain his son until he attains the age of puberty and maintain his daughter till her marriage---Mere fact that the children are in custody of their mother is not a valid ground for the father to withhold maintenance of his children---So long as the children are with the mother and unless their custody is disturbed in result of any legal proceeding, liability of father to provide them adequate maintenance is absolute and is not dependent or affected by their residence.

Munir Ahmad for Petitioners.

Ghulam Nabi for Respondent.

2022 M L D 1794

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, CJ

Syed SHABBIR HUSSAIN and 3 others---Petitioners

Versus

QUDSIYA BATOOL and 4 others---Respondents

Civil Revision No.147 of 2020, decided on 19th February, 2021.

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

----S.42---Suit for declaration---Shares of legal heirs---Concurrent findings of facts---Scope---Petitioners/ defendants assailed concurrent findings of facts recorded by courts below whereby the respondents'/plaintiffs' suit for declaration and consequential relief was decreed---Validity---Respondents being legal heirs of deceased and sisters of petitioners were entitled to inherit their due share in the legacy of their father---Respondents had successfully proved their suit through reliable oral as well as documentary evidence but the petitioners had failed to prove the gift deed by producing any reliable evidence and no entry was made in the revenue record in favour of the petitioners on the basis of gift deed, as such, the courts below had rightly discarded the contention of the petitioners---Concurrent findings of facts recorded by the courts below were not open to exception unless it was established that the same suffered from any jurisdictional defect/error or were based on misreading or non-reading of evidence, which elements were conspicuously lacking in the present petition---Revision petition was dismissed, in circumstances.

(b) Islamic law---

----Inheritance---Scope---On the death of a Muslim his property is distributed amongst his legal heirs according to their sharai shares---Inheritance left by the deceased would be deemed to have devolved on the death of last male owner on all his legal heirs who were in existence at the time of his death and they would be deemed to have become joint owners under the law of Shariah.

Manzoor Hussain for Petitioners.

2022 M L D 1803

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ

ALL RESIDENTS OF KATISHU through Representatives and another---Petitioners

Versus

AHLIYAN MEHDI ABAD through Representative---Respondents

C.M.(T) No.59 of 2021, decided on 5th November, 2021.

Civil Procedure Code (V of 1908)---

----S.24---General power of transfer and withdrawal---Scope---Petitioners sought transfer of certain civil as well as criminal cases from one district to another district on the ground that they had apprehension of an untoward incident on behalf of respondents while travelling from their district towards the place of trial---Validity---Merely on the ground of apprehension of any untoward incident, cases could not be transferred from one district to another---Court must be satisfied that there were reasonable grounds to suppose that the petitioners would not receive fair and impartial trial and would not get justice from particular court---Petition was dismissed.

Akhond Muhammad Ali for Petitioners.

Muhammad Ali for Respondents.

2022 M L D 1973

[Gilgit-Baltistan Chief Court]

Before Malik Inayat-ur-Rahman and Raja Shakeel Ahmed, JJ

GILGIT-BALTISTAN POLICY INSTITUTE (GBPI) through Chief Executive Officer and another---Petitioners

Versus

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

Writ Petition No.134 of 2021, decided on 26th October, 2021.

(a) Public Procurement Regulatory Authority Ordinance (XXII of 2002)---

----S.26---Public Procurement Rules, 2004, R.48---Writ petition­---Alternate remedy---Question of fact involved---Redressal of grievances by the procuring agency---Bids for destination management / development planning for untapped areas---Respondents/authorities had shortlisted the private respondent / private firm for all assignments---Petitioner contended that the qualification of the private respondent/firm in all three items of the project was in violation of the terms/conditions of the bidding documents as per the Request for Proposal; that official respondents had given undue favour to the private respondent/firm; that subject project should be declared null/void; and that respondents/authorities were required to reject all the bids of private respondent---Deputy Advocate General being representative of official respondents contended that constitutional petition was pre-mature/not maintainable; that petitioner had failed to avail the alternate remedy under R.48 of the Procurement Rules; that respondent authority had permanent grievance committee; that petitioner participated in the bid process and remained unsuccessful for not having the technical and financial capacity to undertake the project; that considerable work of the project was complete and stopping the proceedings at such crucial stage would, cause public exchequer to suffer a loss of millions and private respondent/firm would also suffer financial loss and mental agony/torture; that matter involved disputed questions of facts which could not be adjudicated in constitutional jurisdiction; and that issue of fact whether petitioner had the required technical skills/know how could only be adjudicated by official respondents/authorities themselves---Held, that alternate remedy in shape of complaint was available to the aggrieved bidder and being dissatisfied with the decision of the committee might lodge an appeal in the relevant Court having jurisdiction---Petitioner's assertion and denial of respondents would lead to disputed question of facts which could not be adjudicated in constitutional jurisdiction---Alleged complaint to Chairman Grievance Committee was a request to the said Chairman seeking permission for submission of additional proposal/extension of proposal submission deadline and that too was incomplete---Petitioner's prayer was infected with the discrepancy that he was seeking for disqualification of private respondent from all three assignments whereas on the same breath seeking the declaration in his favour regarding only one of three assignments---Constitutional petition was dismissed accordingly.

(b) Government of Gilgit-Baltistan Order, 2018---

----Art.86(2)---Public Procurement Rules, 2004, R. 48---Constitutional jurisdiction---Alternate/adequate remedy---Scope---Superior Court were not to involve themselves into investigation of the disputed question of facts which necessitate taking of evidence.

Aurangzeb Khan for Petitioners.

Dy. A.G. assisted by Said Abbas for Respondents.

2022 M L D 2009

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ

CIVIL SUPPLY OFFICER, DISTRICT SKARDU---Petitioner

Versus

MEHDI---Respondent

Cr. M (CD) No.07 of 2021 in Criminal Appeal No.03 of 2021, decided on 4th November, 2021.

Criminal Procedure Code (V of 1898)---

----S.517---Order for disposal of property regarding which offence committed---Scope---Respondent filed an application under S.517, Cr.P.C., before the Trial Court for return of certain amount recovered from his possession by the FIA during investigation of a criminal case---Trial Court directed the appellant to return the amount---Trial Court after full-fledged trial of main criminal case had acquitted the respondent from the charges, which exposed the fact that the respondent was innocent and the FIA had failed to prove its case against the respondent---Acquittal of respondent had been maintained by the Supreme Court---Federal Investigating Agency authorities had wrongly recovered the amount from the respondent, who was entitled to get it back after his acquittal---Appellant had challenged the impugned order with a delay of 50 days whereas the law provided only 30 days to file an appeal---Delay in filing appeal was not condonable---Appeal was dismissed, in circumstances.

Basharat Ali for Appellant/Petitioner.

2022 M L D 1023

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

YASIR SHAFIQUE---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION CITY MUZAFFARABAD, DISTRICT MUZAFFARABAD, AZAD KASHMIR and 3 others---Respondents

Writ Petition No.370 of 2020, decided on 18th April, 2022.

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

----Art.44---Criminal Procedure Code (V of 1898), S.154---Writ petition---Quashing of FIR---Scope---Where serious allegations have been levelled in the FIR, termination of investigation or probe is not justified.

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

----Art.44---Writ petition---Extraordinary jurisdiction---Scope---Remedy of writ is an extraordinary relief and such relief cannot be extended to the parties upon whims and wishes without indicating any violation of law.

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

----Art.44---Criminal Procedure Code (V of 1898), S.154---Writ petition---Quashing of FIR---Scope---Principle of trichotomy of powers which is delicately balanced in the Constitution cannot be disturbed as it grants powers to each organ to decide the matters in its allotted sphere---Not appropriate to divert ordinary course of criminal procedure as laid down in procedural law---Generally, it is within the province and allotted sphere of the Investigation Agency to dig out and probe the matter in order to ascertain the veracity and truthfulness of allegations---Despite this, criminal proceedings are not immune from interference absolutely, there are certain exceptions in this regard if FIR is outcome of mala fide, without jurisdiction or amounts to misuse of process of law, definitely High Court can come for rescue of the aggrieved one by exercising the power of judicial review available under Art.44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.

Col. Shah Sadiq v. Muhammad Ashiq 2006 SCMR 276 rel.

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

----Art.44---Writ petition---Extraordinary jurisdiction---Scope---Extraordinary remedy provided in the Constitution is to be exercised in extraordinary circumstances---High Court is burdened with enormous duty to protect the life, liberty and other constitutionally guaranteed fundamental rights of the subjects of the State.

Ch. Pervez Ellahi v. The Federation of Pakistan 1995 MLD 615 ref.

2015 PCr.LJ 1667 rel.

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

----Art.44---Criminal Procedure Code (V of 1898), S.154---Writ petition---Quashing of FIR---Civil and criminal proceedings---Scope---First Information Report cannot be quashed or cancelled because matter pertains to civil liability or for that matter on account of pendency of any civil lis---Civil and criminal proceedings can go side by side simultaneously.

Raja Tariq Bashir for Petitioner.

Syed Asad Ali Kazmi for Respondent No.4.

2022 M L D 1056

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

Raja JUNAID RAFIQUE---Petitioner

Versus

REGISTRAR/DISTRICT JUDGE MUZAFFABAD and 2 others---Respondents

Writ Petition No.434 of 2021, decided on 22nd April, 2022.

(a) Notification---

----Prospective application---Scope---Notification which imposes or enhances liabilities cannot be given retrospective effect to the extent of rights already stood created and if the same is beneficial it may be given retrospective effect.

Syed Rasheed Shah v. Azad Government and others 2016 SCR 1327; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Messrs Finance, Islamabad and 06 others PLD 1997 SC 582; Imran Ali v. PSC and others 2014 PLC (C.S.) 442 and Jurists Foundation through Chairman v. Federal Government through Secretary, Ministry of Defence and others PLD 2020 SC 1 ref.

(b) Notification---

----Prospective application---Scope---Executive order or notification which is detrimental or prejudicial to the interest of a person, cannot operate retrospectively---However, beneficial executive order/notification issued by the executive functionary can be given retrospective effect.

Syed Rasheed Shah v. Azad Government and others 2016 SCR 1327; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Messrs Finance, Islamabad and 06 others PLD 1997 SC 582; Imran Ali v. PSC and others 2014 PLC (C.S.) 442 and Jurists Foundation through Chairman v. Federal Government through Secretary, Ministry of Defence and others PLD 2020 SC 1 ref.

(c) Public functionaries---

----Judicial and executive power is a trust and is not absolute in any person/authority howhighsoever, it may be---Such power is always guided by the principles of good conscience and justice.

(d) Administration of justice---

----Let justice be done though the heavens fall.

Raja Mushtaq Khan for Petitioner.

2022 M L D 1073

[High Court (AJ&K)]

Before Sadaqat Hussain Raja, CJ

MUHAMMAD ALI---Petitioner

Versus

The STATE through Muhammad Naeem Butt and another---Respondents

Criminal Revision Petition No.180 of 2021, decided on 30th November, 2021.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 299, 147, 148, 149, 337-A, 337-F & 109---Qatl-i-amd, rioting, armed with deadly weapon, shajjah, ghayr-jaifah, abetment---Bail, refusal of---Minority of accused---Scope---Accused sought bail after arrest on statutory ground of delay in conclusion of trial and minority---Accused was alleged to have fired a straight shot with pistol near the chin of complainant's brother, who succumbed to the injuries---Perusal of School Certificate and verification revealed that such documents did not bear the name of accused---Accused, at the time of occurrence, was 17 years and 20 days of age and in such an age a male commonly attains puberty---Accused, by physical appearance, had attained puberty and under S. 299, APC, adult was described as a person who had attained, being a male, the age of eighteen years or had attained puberty, whichever was earlier---Between the words "age of eighteen years" and "puberty" the word "or" was used which clearly reflected that out of the two conditions, the condition whichever came earlier, would be considered to declare a person adult---Mere presentation of School Certificate and verification was not sufficient to prove the accused as minor---Accused was not entitled to be released on bail under third proviso to S.497(1), Cr.P.C.---Petition for grant of bail was dismissed, in circumstances.

2002 MLD 918; 2003 PCr.LJ 711 and PLD 2012 Sindh 147 distinguished.

1993 SCR 108; 2001 PCr.LJ 895 and 2021 YLR 753 ref.

Abdul Aziz Ratalvi for Petitioner-Accused.

Ch. Mahboob Ellahi for the Complainant-Respondent No.1.

2022 M L D 1209

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

TAHIR SALEEM MUGHAL---Petitioner

Versus

STATE through Advocate General of Azad Jammu and Kashmir, Muzaffarabad and 3 others---Respondents

Writ Petition No.1932 of 2020, decided on 7th March, 2022.

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

----Art.44---Writ petition---Alternate remedy---Scope---High Court is blessed with powers under Art. 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, to redress the grievance of the petitioner who approaches the Court disclosing violation of law keeping in view the parameters of Art. 44 but simultaneously if an alternate forum for the purpose is available in normal course of law then exercise of extraordinary jurisdiction is not desirable and proper.

Shah Mohammad v. Mohammad Younis 2014 SCR 183 ref.

Perveen Azam and others v. SSP District Mirpur and 4 others 2015 SCR 837 rel.

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

----Art. 44---Writ petition---Quashing of FIR---Scope---Issuance of writ by setting at naught an FIR in every case amounts to short circuit the normal procedure of law.

Col. Shah Sadiq v. M. Ashiq 2006 SCMR 276 and Ajmeel Khan v. Abdul Rahim PLD 2009 SC 102 rel.

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

----Art.44---Writ petition---Quashing of FIR---Scope---Where petitioner sought quashing of FIR, High Court observed that he was at liberty to put his grievance before the Investigating Officer of the case, likewise he could approach the High-up in the hierarchy on the investigation side in view of S.551 of Cr.P.C. and thereafter another remedy was before the Magistrate under S. 63 of Cr.P.C. seeking discharge from the case---Magistrate could refuse to take cognizance if the case was not made out vis-à-vis moving further remedy under Ss.249-A & 265-K, Cr.P.C., as remedial purpose.

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

----Art.44---Writ petition---Quashing of FIR---Scope---Constitutional window is open for interference in suitable cases where some gross violation of law itself is oozing from the record or criminal law has been set at motion at random or mala fide reasons appearing or floating on the surface of record.

Dr. Ghulam Mustafa v. The State 2008 SCMR 76 ref.

Col. Shah Sadiq v. M. Ashiq 2006 SCMR 276 and Ajmeel Khan v. Abdul Rahim PLD 2009 SC 102 rel.

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

----Art.44---Writ petition---Alternate remedy---Scope---Constitutional remedy is a summary remedy which is discretionary and disputed question of facts cannot be resolved under said jurisdiction---Such remedy is hedged and conditioned and it can only be availed as a last resort---Jumping over and keeping aside the bulk of alternate remedies imbalances the concept of trichotomy of powers as well.

(f) Criminal trial---

----Every sort of allegations and offences attributed to any person as per canon of criminal justice are liable to be probed/inquired and investigated.

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

----S.154---Information in cognizable cases---Scope---Mere registration of FIR is not suffice and not a licence in the hands of investigating agency to arrest every accused person mere in the garb of FIR unless and until his corpus is not required by the investigating agency for the investigation or if any recovery is likely to be made from him.

Nasir Masood Mughal for Petitioner.

A.A.G for the State.

2022 M L D 1254

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

EJAZ RASHEED---Petitioner

Versus

AZAD JAMMU AND KASHMIR EHTESAB BUREAU through Chairman, Muzaffarabad and 2 others---Respondents

Writ Petition No.320 of 2008, decided on 1st April, 2022.

(a) Azad Jammu and Kashmir Ehtesab Bureau Act (I of 2001)---

----Ss. 2, 3, 4, 10 & 11---Oil Fields and Mineral Development (Government Control) Act (XXIV of 1948), Preamble---Azad Jammu and Kashmir Mining Concession Rules, 2002, R.23---Writ Petition---Scope---Petitioner invoked writ jurisdiction of the High Court with the claim that he was issued a licence for exploration and extraction of dolomite under the Regulation of Mines and "Oil Fields and Mineral Development (Government Control) Act, 1948 and "Azad Jammu and Kashmir Mining Concession Rules, 2002" and that any offence under the Act did not come within the jurisdictional power of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, thus, the Ehtesab Bureau was not empowered to investigate the matter, as such, investigation proceedings were required to be declared coram non judice---Section 2(2) of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, which was a special law, postulated that said Act shall have effect notwithstanding anything contained in any other law for the time being in force---Section 3(a) clearly stated that it was applicable to all persons of the Azad Jammu and Kashmir---Section 4(a) revealed that the accused shall include a person in respect of whom there were reasonable grounds to believe about his involvement in commission of any offence and according to S.4(c) his associates were also included---Section 10 of the Act stated about corruption and corrupt practices by holder of a public office or any other person---Provisions of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 were sufficient to deny the claim raised by petitioner in his petition---Ehtesab Bureau had got ample jurisdiction to investigate the matter---Writ petition was dismissed.

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

----Art.44---Writ petition---Quashing of proceedings---Scope---Investigation should not be hampered in exercise of writ jurisdiction unless it is proved that the investigation lacks legal efficacy or lawful authority.

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

----Art.44---Writ petition---Alternate remedy---Scope---Writ jurisdiction could not be exercised against a notice because the aggrieved person has an alternate and efficacious remedy for redressal of his grievance i.e. to appear before investigating agency and present his view point.

Abdul Rasheed Abbasi for Petitioner.

2022 M L D 1294

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

MUHAMMAD TAHIR---Petitioner

Versus

CHAIRMAN BOARD OF GOVERNORS P.M. AZADJAMMU AND KASHMIR and 4 others---Respondents

Writ Petition No.2874 of 2021, decided on 7th March, 2022.

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

----Art.44---Writ petition---Writ of quo warranto---Bona fide of petitioner---Scope---In case of writ of quo warranto the question of laches is relevant to check the bona fides of the petitioner and his prayed relief is liable to be filtered through the lens of bona fide---Writ in the form of quo warranto cannot be issued in routine---Litmus test for issuance of writ is bona fide conduct of the person who comes forward and challenges the occupation of some office.

PLD 1969 SC 42; PLD 1991 Lah. 420 and Ahmed Nawaz Tanoli v. Chairman Azad Jammu and Kashmir Council and others 2016 SCR 960 ref.

Syed Manzoor Gillani v. Sain Mullah, Advocate and 20 others PLD 1993 SC (AJ&K) 12 rel.

Kh. Tariq Sammad for Petitioner.

A.A.G. for Official Respondents.

2022 M L D 1306

[High Court (AJ&K)]

Before Sadaqat Hussain Raja, CJ

NAQASH RASHEED---Petitioner

Versus

The STATE---Respondent

Criminal Reference No.194-B of 2021, decided on 1st September, 2021.

Criminal Procedure Code (V of 1898)---

---Ss. 432 & 433---Reference by Presidency Magistrate to High Court---Disposal of case according to decision of High Court and direction as to costs---Scope---Accused sought bail after arrest on statutory ground of delay in conclusion of trial---Sessions Judge after hearing arguments, sent the reference to High Court for guidance---Subordinate Court could not send for any clarification/instruction under Ss. 432 & 433, Cr.P.C., consequently it was required to decide the matter by itself keeping in view the relevant provision of law as well as newly created situation---High Court observed that it High Court would not like to give any opinion on the reference sent by Sessions Judge on the question whether the period consumed due to Covid-19 pandemic would be considered as consumed by the prosecution or by accused---Court below was directed to decide the question by itself---Reference was answered accordingly.

Emperor v. Madho Singh AIR 1925 All. 318 and 1998 PCr.LJ 1377 ref.

Raja Aftab Ahmed for Petitioner/accused.

2022 M L D 1320

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

MOHAMMAD NAZIR and 10 others---Appellants

Versus

ALIM DEEN and 9 others---Respondents

Civil Appeal No.181 of 2015, decided on 7th March, 2022.

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

----S.100---Second appeal---Concurrent decree---Entry in revenue record, cancellation of---Counter suits were consolidated by Trial Court---Suit for declaration and perpetual injunction was filed by respondents alleging that suit land was purchased by the respondents/plaintiffs and proforma defendants from appellants (real defendants) through oral and simple inscription/writing; that suit land was in sole share; that parties were in possession of 3/4 decades; that inscription was misplaced due to earthquake; that respondents made improvements in the suit land by spending millions of rupees; that during the settlement, revenue department entered the plaintiff and his brothers as 'Ghairmoroosi'---Appellants in their written statement and subsequent separate suit claimed that through private partition suit land came into the ownership of appellants (defendants Nos. 4 to 7), one defendant had no nexus with the suit land and; that the plaintiffs' suit was barred by time---Counter suit was filed by the appellants alleging that suit land was gifted by the father to three plaintiffs that mutation had been attested/entered in the record and defendants with the connivance of the revenue officials entered their names and that plaintiffs and proforma defendants had not been arrayed as party---Civil Court consolidated both the suits and decreed the suit for perpetual injunction in favour of plaintiffs/respondent and dismissed the cross suit of the appellant---Both parties filed appeals which were dismissed by the District Court---Validity---High Court observed that civil cases were always to be decided on yardstick of the preponderance of probabilities of evidence---Party in whose favour evidence was titling much more should succeed---No material irregularity regarding infringement of law or for that matter any sort of mis-reading or non-reading had been indicated/pointed out by the appellant in order to provide any room to embark upon or indulge in concurrent findings recorded by both the Courts below---Appeal was dismissed accordingly.

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

----S.100---Second appeal---Concurrent findings---Jurisdiction---Different conclusion from evidence, possibility of---Interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not warranted in second appeal against the concurrent findings of fact---If different conclusions/inference from evidence is possible even then concurrent findings of fact recorded by two courts is sacrosanct and immune from interference in the second appeal. [p. 1324] F & G

Fazal Karim v. Abdul Manaf 1997 MLD 2867 and 2022 SCMR 284 ref.

Abdul Jabbar for Appellants.

2022 M L D 1540

[High Court (AJ&K)]

Before Chaudhry Khalid Rasheed, J

JAVAID IQBAL and others---Appellants

Versus

MOHAMMAD SHABBIR and others---Respondents

Civil Appeals Nos.102 and 106 of 2015, decided on 9th June, 2022.

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

----Ss.42 & 54---Qanun-e-Shahadat (10 of 1984), Art. 100---Suit for declaration and permanent injunction---Presumption as to documents thirty years old---Specific performance of agreement to sell---Scope---Plaintiffs filed a suit for declaration and perpetual injunction on the basis of an agreement and claimed that predecessors of defendants had alienated their whole land---Validity---Agreement was a thirty years old document hence, under Art. 100 of Qanun-e-Shahadat, 1984 same had got presumption of truth until and unless otherwise proved---Name of predecessor of plaintiffs was entered in the revenue record as possessor of the land being vendee from 1950 till 1984, thus, the agreement was supported by the documentary evidence---Documentary evidence could be rebutted only through documentary evidence or through concrete, tangible and credible evidence of an extraordinary nature---Defendants had failed to rebut the documentary evidence relied upon by the plaintiffs---Plaintiffs were in possession of the land till date---Bare reading of the agreement depicted that the time period was not the essence of the agreement---Cause of action had arose in favour of the plaintiffs when the defendants had interfered into their possession and refused to get registered the sale deed, hence, the suit was within limitation---Appeal filed by plaintiffs was accepted, judgment and decree passed by Appellate Court were set aside and that of Trial Court were restored, in circumstances.

2013 SCR 563 ref.

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

----Ss.42 & 54---Suit for declaration and permanent injunction---Specific performance of agreement to sell---Scope---Where plaintiff had filed a suit for declaration and possession on the basis of an agreement to sell, High Court observed that an agreement to sell did not create any right in favour of the vendee except to obtain another document i.e. sale deed, so the suit was liable to be dismissed.

2016 SCR 1723 ref.

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

----S.12---Suit for specific performance---Description of land---Scope---Where the defendants claimed that the specification and location of the sold land was not mentioned in the agreement, hence, the agreement could not be executed, High Court observed that sufficient whereabouts and location of land was mentioned for execution of sale deed and for fruitful decree of the court as eastern and western boundaries (Hadood-e-Arba) of the land was explained in the agreement.

(d) Evidence---

----Documentary evidence---Scope---Documentary evidence can be rebutted only through documentary evidence or through concrete, tangible and credible evidence of an extraordinary nature.

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

----Art.113---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Limitation---Scope---When the time period for execution of an agreement to sell is not mentioned, the limitation will start from the day of refusal on the part of principal to execute the deed in pursuance of the agreement.

1995 SCMR 284 ref.

Khawaja Atta Ullah Chak for Appellant (in Civil Appeal No.102 of 2015).

Shahzad Shafi Awan for Appellants (in Civil Appeal No.106 of 2015).

2022 M L D 1565

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

KHADAM HUSSAIN and 2 others---Petitioners

Versus

KHURSHEED BIBI and 2 others---Respondents

Appeal No.79 of 2015, decided on 3rd June, 2022.

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

----Ss.42 & 54---Suit for declaration and perpetual injunction---Co-sharer of property, rights of---Scope---Plaintiff filed suit for declaration and perpetual injunction alleging therein that she was owner in possession of the suit land; that her house on the suit land was turned into debris in an earthquake and that her real brothers (defendants) were inclined to snatch the suit land---Trial Court decreed the suit---Appellate Court endorsed the decree of the Trial Court to the extent of grant of relief by way of perpetual injunction and dismissed the suit to the extent of declaratory relief---Validity---Parties were admittedly co-sharers and possession of co-sharers over the portion of undivided property was deemed on the part of all the co-sharers---Proper course in such eventuality was to seek partition of the undivided property---Pronouncement of Appellate Court pertaining to dismissal of the suit to the extent of declaratory decree was in consonance with law---Appeal was dismissed.

2013 SCR 262; 2011 CLC 2020; 2006 YLR 856; 2004 SCR 202; 2004 YLR 2301; PLJ 2002 SCAJ&K 526; 2002 CLC 749; Mst. Kubra Begum v. Muhammad Yasin Khan PLD 1983 SC AJ&K 56 and Muhammad Riaz Khan and 11 others v. Mst. Tahira Begum and 16 others 1996 CLC 1540 ref.

1999 CLC 1406 and Mst. Farooq Bibi v. Abdul Khaliq and 26 others 1999 CLC 1358 rel.

(b) Administration of justice---

---Civil cases are to be decided on the basis of doctrine of preponderance of probability of evidence.

Syed Nazir Hussain Shah Kazmi for Appellants.

Haroon Riaz Mughal for Respondent No.1.

2022 M L D 1812

[High Court (AJ&K)]

Before Mian Arif Hussain and Khalid Rasheed Chaudhary, JJ

ISRAR alias QARI---Petitioner

Versus

The STATE through Additional Advocate General, Mirpur---Respondent

Criminal Miscellaneous Application No.57 of 2021, decided on 22nd April, 2022.

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

----Ss.426 & 497---Suspension of sentence pending appeal---Release of appellant on bail---Scope---Power of Appellate Court under S. 426(1), Cr.P.C., is not limited and Court, during the pendency of appeal may suspend the sentence of a convict in an appropriate case in its discretion for good and sufficient reasons but such power of suspension of sentence and grant of bail is not wider than that under S. 497, Cr.P.C.

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

----S.426---Suspension of sentence pending appeal---Release of appellant on bail---Scope---Sentence under S.426, Cr.P.C., can be suspended after coming to the conclusion that at the end of the day, there would be no chance of maintainability of conviction, without making deeper appreciation of evidence---Although, sometimes, for determining the validity of conviction order, tentative assessment of evidence may be made in certain eventualities, however said exception by no means can be invoked for defeating the general principle.

Ch. Muhammad Mehfooz for Petitioner.

2022 M L D 13

[Islamabad]

Before Miangul Hassan Aurangzeb and Tariq Mehmood Jahangiri, JJ

GUL NAZIR---Appellant

Versus

RIASAT alias SAEEN and 6 others---Respondents

Criminal Appeal No.104 of 2021, decided on 14th September, 2021.

Penal Code (XLV of 1860)---

----Ss.395, 412, 400 & 413---Dacoity, dishonestly receiving stolen property knowing that it was obtained by dacoity, belonging to a gang of persons associated for the purpose of habitually committing dacoity, habitually dealing in stolen property---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Prosecution case was that the accused armed with deadly weapons entered in the house, made the complainant and his family hostage and on gun point robbed gold ornaments, cash amount, and mobile from the house of complainant---Record showed that there was no other evidence available against the accused persons except their confession before the police and joint recovery of Rs.30,000/=---Accused were not named in the FIR, no identification parade of the accused-respondents had been conducted, there was no evidence/report of matching the finger prints etc. of the accused-respondents---Practice of recording extra judicial confession in presence of police officers was nullity in the eye of law and no credence could be extended to such piece of evidence---Joint recoveries effected at the instance of accused were inconsequential---Scope of setting aside the benefit of acquittal from the court of competent jurisdiction was very much limited---Neither any incriminating, legal and cogent evidence was collected by the police against the accused-respondents nor produced in the Trial Court---Accused-respondents, therefore, were rightly acquitted by the Trial Court---Appeal was dismissed accordingly.

Saeed Ahmad v. The State and others 2011 SCMR 1686; Muhammad Ismail and others v. The State 2017 SCMR 898; Sajjan Solangi v. The State 2019 SCMR 872; Gul Muhammad and another v. The State through Prosecutor General Balochistan 2021 SCMR 381; Muhammad Mushtaq v. Mustansar Hussain and others 2016 SCMR 2123; Shabbir Ahmed v. The State 2011 SCMR 1142; Ghulam Akbar and another v. The State 2008 SCMR 1064; Sajjad Bhatti and others v. The State 2017 PCr.L.J 114; Raheel Anwar and another v. The State and others 2019 YLR 1385; The State through P.G. Sindh and others v. Ahmed Omer Sheikh and others 2021 SCMR 873 and Zeeshan alias Shani and another v. Muhammad Ayub and others 2021 SCMR 142 rel.

2022 M L D 31

[Islamabad]

Before Mohsin Akhtar Kayani, J

HAMID KHAN---Petitioner

Versus

The STATE and 2 others---Respondents

Writ Petition No.2581 of 2021, decided on 13th October, 2021.

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

----O.II, R.2---Inclusion of whole claim in the plaint---Object, purpose and scope--- Principle under O.II, R.2, C.P.C. is based upon concept of transparency, fair play, propriety and reasonableness---Object of such principle is that all matters in dispute between same parties arising and relating to same transaction should be disposed of in the same suit.

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

----S.4(l)---Investigation---Object---Duty of investigating officer is to discover incriminating evidence and to collect and establish that story of incident contained in FIR was correct---Investigating officer is not controlled or guided by contents of FIR rather it is his own authority to search for truth and he may disagree with version of FIR as it is expected from him to collect information or to record any fresh information or facts and he may arrive at its own conclusion.

Mst. Sughran Bibi v. The State PLD 2018 SC 595 rel.

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

----Ss.22-A (6) & 154---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Second FIR, quashing of---Scope---Guidelines to police officers---Petitioner/accused sought quashing of second FIR for dishonour of second cheque issued during same transaction for which earlier one FIR had already been registered---Validity---Held, second FIR could not be registered in cases of same transaction like cheques of same series originating on same cause of action, whether dishonoured or not or subsequently dishonoured after registration of first FIR---If second FIR was lodged the same should be cancelled by referring subsequent cheques through supplementary challan in first FIR/case---If second FIR was not registered and matter was pending before Ex-Officio Justice of Peace, who was dealing with the case, he could pass order/direction under S.22-A (6), Cr.P.C. to investigating officer of the first case, who had already registered the FIR or had submitted final report under S.173, Cr.P.C., to file supplementary challan in that first case on the basis of such new facts of cognizable offence emanating from the same incident / transaction like dishonoured cheque---If police officer had also registered second FIR, he could convert final report in terms of S.173, Cr.P.C. as supplementary report of first FIR while considering offence of same transaction, must submit supplementary challan in the same court without recourse to arrest of accused---Where different dishonoured cheques were still with complainant, which had not been used against same accused originating from same transaction and series of cheques, which were basis of first FIR, in such situation no further F.I.R. could be registered and police officer should not proceed in those cases, rather should refer the parties to Court of competent jurisdiction under the law by way of filing of civil suit for recovery---Officer incharge of police station should not entertain every such application of subsequent dishonoured cheque of same accused by facilitating complainant as helping in or becoming tool of recovery---Police officers were duty bound to refer the parties to Court of competent jurisdiction or directed the matter to concerned police station for recording of entire complaint in police diary with reasons that already FIR has been lodged and complainant did not disclose other cheques of same transaction due to his ill-will and mala fide---If trial of first FIR was already concluded then police officer should not register second FIR in any manner of the same transaction or series of offences which had already been adjudicated upon the basis of same set of allegations---High Court quashed second FIR as the same was abuse of process and complainant had right to recourse to remedy of recovery provided under law---Constitutional petition was allowed, in circumstances.

Sheikh Rehman Ahmed v. Judicial Magistrate-II, South, Karachi and 2 others 2019 MLD 636; Muhammad Asif v. Umar Farooq Khan, Inspector Police 2010 MLD 128; Mst. Sughran Bibi v. The State PLD 2018 SC 595; Ghulam Jilani v. The State PLD 1957 W.P (Lahore) 290; Amritlal v. Emperor ILR 42 Cal 957; Ata Muhammad Khan Alvi and others v. The Crown PLD 1950 Lah. 288; Khan Mohammad and 11 others v. The State 1971 PCr.LJ 762; Muhammad Azam v. State 1997 PCr.LJ 1900; Independent Media Corporation (Pvt.) Ltd. v. Prosecutor General, Quetta PLD 2015 Bal. 54; Munawar Hussain v. Judge ATC-II, Lahore 2017 PCr.LJ 46; Miraj Khan v. Gul Ahmed 2000 SCMR 122; Faisal Iqbal v. State 2016 PCr.LJ 1144; Zulfiqar Ali v. SHO, PS Model Town, Gujranwala 2014 PCr.LJ 487; Muhammad Aslam (Amir Aslam) v. DPO Rawalpindi 2009 SCMR 141 and Mst. Sughran Bibi v. The State PLD 2018 SC 595 rel.

Khurram Mehmood Qureshi and Abdul Rauf Qureshi for Petitioner.

Adnan Iqbal for Respondent No.3.

Zohaib Hassan Gondal, State Counsel.

Raza Muhammad, S.I., P.S. Kohsar, Islamabad.

2022 M L D 58

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD ALI JUNEJO---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Nos.530-B and 531-B of 2021, decided on 7th June, 2021.

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

----497---Penal Code (XLV of 1860), Ss. 420, 468, 471, 477-A, 109 & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, falsification of accounts, abetment and common intention, public servant committed or attempt to commit criminal misconduct---Bail, grant of---Further inquiry---Allegation against the accused was that he was found involved in the fraudulent allotment of plots---Offences under Ss. 420, 471 & 477-A, P.P.C., were bailable---Offence under S.468, P.P.C., read with S.5(2)47, P.C.A., was concerned, it had been confirmed by the Investigating Officer that there was no evidence available on record which depicted that the accused/petitioners themselves had prepared any forged document or had received illegal gratification from any person---Investigating Officer further stated that there was no statement of any witness who had alleged that the accused/petitioners had received bribe/illegal gratification from him---Only allegation levelled against the accused/petitioners was that during their posting as Accounts Officer/Divisional Accountant they forwarded the Pay Orders for encashment to the Bank and the amount was credited in the account of Department---Delayed charges were not properly calculated---Offence did not fall within the prohibitory clause of S.497, Cr.P.C---Co-accused having the same role had been released on bail, hence the main accused were also entitled for grant of bail on the principle of consistency---Investigation in the case had been completed---Accused/petitioners were previously non-convict---Accused/petitioners were no more required by the police for the purpose of further investigation---Accused/petitioners were government servants, there was no chance of their absconsion or tampering with the evidence---Accused/petitioners were behind the bars without any progress in the trial---Fair and speedy trial was one of the fundamental rights of the accused/petitioners---No moral and legal compulsion existed to keep the accused/petitioners behind the bars for an indefinite period which amounted to punishment without trial---Tentative assessment of record showed that present accused/petitioners had made out a case of further inquiry as envisaged under S.497(2), Cr.P.C---Accused/petitioners were admitted to bail, in circumstances.

Tariq Bashir and others v. The State PLD 1995 SC 34; Muhammad Tanveer v. The State and another PLD 2017 SC 733; 2011 SCMR 1708; 2016 SCMR 1439; 2020 SCMR 1258; 2020 SCMR 717; Ghulab Khan v. Chairman NAB and another 2020 SCMR 285; Muhammad Daud and another v. The State and another 2008 SCMR 173; Sheraz v. The State 2021 MLD 292 and Muhammad Azam v. The State 2008 SCMR 249 rel.

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

----S.497---Bail---Heinous nature of offence---Scope---Mere heinousness of the offence was not sufficient to take away discretion of the court to grant bail which was never refused as punishment and there was no legal or moral compulsion to keep a person in jail---Ultimate conviction and incarceration of a guilty person could 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.

Raja Rizwan Abbasi for Petitioner (in Criminal Miscellaneous No.530-B of 2021).

Kashif Ali Malik for Petitioner (in Criminal Miscellaneous No.531-B of 2021).

Ch. Fayyaz Hussain, Assistant Attorney General.

2022 M L D 103

[Islamabad]

Before Mohsin Akhtar Kayani, J

INTIZAR HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.540-B of 2021, decided on 22nd June, 2021.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 302 (b) & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant died---Accused was allegedly armed with .30 bore pistol and he resorted to firing---Though, no firearm injuries had been attributed to the accused rather it was the case where only accused's presence was referred at the place of murder of deceased at the hands of co-accused---Investigation of the case revealed that father of the accused had been declared innocent after thorough probe and inquiry due to his non presence at the place of occurrence on the basis of CCTV footage record of the Deputy Commissioner Office, as well as Call Data Record, which created ground of further inquiry in the entire case---Forensic reports also revealed that only three crime cartridges had been matched with the recovered pistol, whereas remaining cartridges of .30 bore pistol had been fired through some other pistol---Such aspect demonstrated that more than two pistols of .30 bore were used---Though, the investigation was silent to that extent, therefore, the present case fell within the ambit of further inquiry in terms of S.497(2), Cr.P.C---Prima facie, admitted position on record that the accused had not caused any injury to the deceased or witness---Vicarious liability of alleged occurrence would be determined by the Trial Court after recording evidence---Allegation against the accused-petitioner was of generalized nature---Accused was previously non-convict and had never been involved in any other case---Accused was behind the bars since 18.03.2021 without any progress and conclusion of the trial---Investigation of the case had been completed and accused-petitioner was no more required for further investigation---Further incarceration of the accused would not serve any useful purpose---Mere heinousness of offence was no ground to refuse the bail to accused, who had become entitled for concession of bail in terms of further inquiry---Bail petition was allowed, in circumstances.

Muhammad Irfan v. The State and others 2014 SCMR 1347; Ehsan Ahmad v. The State 1989 MLD 4079; Haji Muhammad Yousaf v. The State and others 2005 YLR 2418; Zahid Saleem Shah v. The State and another 2017 YLR Note 229 and Mudassar Altaf v. The State 2010 SCMR 1861 ref.

Raja Rizwan Abbasi for Petitioner.

Zahid Asif Ch., for Respondent No.2.

Ms. Khadija Ali, State Counsel.

2022 M L D 157

[Islamabad]

Before Aamer Farooq, J

MUNEER KHAN and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.85 of 2020, decided on 16th July, 2021.

Penal Code (XLV of 1860)---

----Ss.381-A, 411 & 34---Qanun-e-Shahadat (10 of 1984), Art. 164---Theft of a car or other motor vehicles---Dishonestly receiving stolen property---Common intention---Appreciation of evidence---Production of CCTV footage---Scope---Accused persons were alleged to have stolen a car of the complainant---No ocular account of theft of the motor vehicle was available, however, during investigation the police authorities had obtained a copy of the CCTV footage in which the accused persons were seen stealing the vehicle---On the basis of identification of accused persons from CCTV footage, spy information was obtained and on the referred pointation the accused persons were arrested and they had led to the recovery of stolen vehicle---Person who had prepared the CCTV footage had appeared before the court and had categorically deposed that he had shown the CCTV footage to the Investigating Officer and had also made a copy of the same---No dent was caused upon his testimony by the defence during the course of cross examination---Attempts were made to cast doubt on the credentials of the said witness to the effect that he was not an expert and his opinion was immaterial---Said witness had not appeared as an expert but had only made copy of CCTV footage/record in USB and hence was a maker of the said document---Accused persons had also led to the recovery of the stolen vehicle which was identified by the complainant---Prosecution had proved its case against the accused persons beyond reasonable doubt, in circumstances---Appeal against conviction was dismissed, in circumstances.

Sher Zaman v. The State 2007 YLR 3160; Collector of Customs and another v. Saeed ur Rahman and others PLD 1989 SC 249; Government of Sindh through Advocate-General, Sindh v. Fahad Naseem and 3 others 2002 PCr.LJ 1765 and Shahid Zafar and others v. The State 2015 PCr.LJ 628 ref.

Asfandyar and another v. Kamran and another 2016 SCMR 2084 rel.

Zahid Ali Khan for Appellants.

Awais Haider Malik, State Counsel for Respondents with M. Akbar, ASI.

2022 M L D 186

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD YASIN---Petitioner

Versus

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

Writ Petition No.290 of 2013, decided on 22nd April, 2021.

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

----O.VII, R.11, O.I, R.10 & S.11---Res judicata---Dismissal of application for impleadment as party---Bar to fresh suit---Scope---Question before High Court was whether the dismissal of application under O.I, R.10, C.P.C., constituted res judicata and barred fresh suit---Held; application for impleadment filed by petitioner in the related suit was based on the documents appended with the application---Petitioner, in the fresh suit, was seeking performance of the agreement in his favour; no evidence as such was recorded on which the Court was to render its findings on the merit and demerit of the case of the petitioner---Findings given on the application were based on the documents, appended in related suit and did not constitute res judicata, barring the petitioner to file fresh suit---Constitutional petition was allowed, in circumstances and the application under O.VII, R.11, C.P.C., was dismissed.

Punjab Board of Revenue Employees Cooperative Housing Society Limited v. Additional District Judge, Lahore and others 2003 SCMR 1284 and Haji Mir Alam Shah and others v. Adam Khan and others 2004 CLC 1100 ref.

Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others PLD 2005 SC 605; G.H. Hook v. Administrator General of Bengal and others AIR 1921 Privy Council 11; Mst. Rukhsana Tabassum Shaikh v. Kazim Imam Jan and others 2003 CLC 189 and Arjum Singh v. Mohindra Kumar and others AIR 1964 SC 993 rel.

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

----S.11---Res judicata---Scope---Section 11, C.P.C. as such is not applicable to the applications.

Gulistan Textile Mills Ltd. and another v. Soneri Bank Ltd. and another PLD 2018 SC 322 rel.

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

----S.11 & O. I, R. 10---Res judicata---Application for impleadment as party, dismissal of---Scope---Person who applied to be made a party but was refused was not bound by the decision in the suit.

Kala Chand Banerjee v. Jagannath Marwari and another AIR 1927 Privy Council 108 rel.

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

----S.11---Res judicata---Compromise decree---Scope---Party whose application for review of a compromise decree on the ground that he had not consented was dismissed, cannot sue to set aside that decree on the same ground.

Kailash Chandra Poddar v. Gopal Chandra Poddar AIR 1915 Calcutta 161(1) rel.

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

----S.11---Res judicata---Application for review of interim order---Scope---Rejection of application for review of a preliminary order does not give it any finality or make it res judicata in a subsequent proceeding.

Taj Begum v. Sarvi Begam AIR 1917 All. 21 rel.

Zulfiqar Ali Abbasi for Petitioner.

Shahid Munir for Respondent No.5.

Zaheer Bashir Ansari for Respondents Nos.6-A to 6-C.

Muhammad Nazir Jawad for Respondent No.7.

Respondents Nos.2 to 4, proceeded ex parte.

2022 M L D 227

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Syed MOHAMMAD HASSAN RAZA RIZVI and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.1380 of 2021, decided on 20th August, 2021.

(a) Jurisdiction---

----Courts' jurisdiction, ouster of---Principle---Such is no longer res integra that unless a statute specifically ousts Court's jurisdiction, ouster of jurisdiction cannot be readily inferred--- Jurisdiction of a special tribunal cannot be inferred by implication--- Ouster of jurisdiction is to be found only if Court finds that provisions of statute excluding jurisdiction of Court are unequivocal, explicitly expressed and definitive.

Additional Collector-II Sales Tax v. Messrs Abdullah Sugar Mills Ltd. 2003 SCMR 1026; Maula Dad Khan v. West Pakistan Bar Council PLD 1975 SC 469 and Abbasia Cooperative Bank v. Muhammad Ghaus PLD 1997 SC 3 rel.

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

----Ss.20(1)(2), 27(1) & 28(3)---Constitution of Pakistan, Art. 199---Constitutional petition---Licence, non-issuance of---Direction by High Court---Scope---Petitioners obtained undergraduate medical qualifications from foreign universities---Grievance of petitioners was that Pakistan Medical Commission did not grant them licence to practice on the ground that the institutions were not duly recognized---Validity---High Court in exercise of its jurisdiction under Art.199 of the Constitution, could not direct the regulator / Pakistan Medical Commission to accord recognition to foreign institutions which fell short of satisfying criteria laid down for recognition of such institutions---None of the petitioners had done their house job, internship or foundation year, by whatever name called in the countries from where they had obtained their undergraduate medical qualifications---None of the petitioners was issued a licence to practice in the countries from where they had obtained their medical certificates---Licensing pathways had been devised by the Council for holders of qualifications from foreign institutions---None of such pathways provided a mechanism for a provisional licence to be granted to graduate from category-B foreign institutions not recognized by Pakistan Medical Commission---Petitioners could not avoid sitting in National Licensing Examination simply because it had been made tough by the regulator---All petitioners had been registered for such examination and they should take it and prove their ability and competence---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Saira Rubab Nasir v. President of Pakistan through Secretary, Islamabad PLD 2020 Isl. 130 ref.

Arif Chaudhary, Hameed Maqsood Abbasi and Shafqat Ullah Waris for Petitioners.

Taimoor Aslam Khan, Muhammad Ali Raza and Muddassar Abbas for Respondents.

2022 M L D 272

[Islamabad]

Before Tariq Mehmood Jahangiri, J

REHAN KHALID---Petitioner

Versus

Mst. UZMA NAWAZ and 3 others---Respondents

Writ Petition No.550 of 2021, decided on 26th July, 2021.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Laches---Scope---Petitioner assailed findings of courts below whereby maintenance allowance of respondents was fixed---Validity---Writ petition was filed after a delay of more than 1 year and 3 months which was badly barred by time and hit by principle of laches---Only vigilant not the indolent was to get the relief from Court of equity or law respecting his right which was violated or infringed---Petitioner could not satisfy as to why he remained in deep slumber for such a long period for realization of his legal rights before High Court which he alleged to have been violated by the respondents---Constitutional petition was dismissed.

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

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Concurrent findings---Scope---Scope of constitutional petition becomes very limited in case of concurrent findings of the courts below.

Syed Arif Ali Sabri v. Abdul Samad through L.Rs. and 2 others 2008 YLR 2309 rel.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Certiorari, writ of---Scope---Certiorari is only available to quash a decision for an error of law---Certiorari will also be issued for correcting errors of jurisdiction when an inferior court or a tribunal acts without jurisdiction or in excess of its jurisdiction, or fails to exercise its jurisdiction or where a court or tribunal acts illegally in exercise of its undoubted jurisdiction and it decides a matter in violation of the principles of natural justice---High Court while issuing a writ of certiorari acts in exercise of supervisory and not appellate jurisdiction---High court in exercise of its writ jurisdiction will not review the findings of facts reached by inferior court or a tribunal.

Amjad Khan v. Muhammad Irshad (Deceased) through LRs, 2020 SCMR 2155; President All Pakistan Women Association, Peshawar Cantt v. Muhammad Akbar Awan and others 2020 SCMR 260; Chief Executive MEPCO and others v. Muhammad Fazil and others 2019 SCMR 919; Chairman, NAB v. Muhammad Usman and others PLD 2018 SC 28 and Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 rel.

Danish Mumtaz for Petitioner.

2022 M L D 296

[Islamabad]

Before Tariq Mehmood Jahangiri, J

BASHIR AHMED---Petitioner

Versus

Syed ANEES AHMED and 2 others---Respondents

Writ Petition No.2229 of 2021, decided on 4th August, 2021.

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

----Art.84---Signatures, comparison of---Expert opinion---Delay in conclusion of trial---Petitioner/plaintiff filed suit for specific performance of agreement to sell and was aggrieved of order passed by Trial Court dismissing his application for comparison of signatures of respondent/defendant---Validity---Report of handwriting expert subject to objections, if any, would have facilitated the Court to formulate its opinion on the question and as such it would have been a judicious exercise of discretion if application was allowed---Delay was not a factor which could have come in the way of exercise of discretion as such course would have advanced cause of justice---High Court allowed application for comparison of signatures and set aside order passed by Trial Court---Constitutional petition was allowed in, circumstances.

Rehmat Ali Ismailia v. Khalid Mehmood 2004 SCMR 361; Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778 and Abdul Ghaffar v. Muhammad Sharif 1993 CLC 1779 rel.

Syed Javed Akbar for Petitioner.

Ms. Nosheen Ubaid and Naeem Yar Gondal for Respondent No.1.

Barrister Yasir Ahmed Rathore for Respondent No.2. / F.G.E.H.A.

2022 M L D 312

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail No.410-B of 2021, decided on 7th May, 2021.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 467, 468, 471, 472, 411 & 420---Forgery for valuable security, will, etc. forgery for purpose of cheating, using as genuine a forged document, making or possessing counterfeit seal, dishonestly receiving stolen property, cheating and dishonestly inducing delivery of property---Bail, refusal of---Scope---Accused sought bail after arrest in an FIR lodged under Ss.467, 468, 471, 472, 411 & 420, P.P.C.---Accused moved the second bail petition on the grounds that the vehicle mentioned in the FIR had already been recovered by the police in another case; that the report of Forensic Laboratory revealed that chassis number of the vehicle was not tampered with and that the complainant had made a statement that he did not want to initiate proceedings against the accused---Held; grounds available to the accused at the time of dismissal of earlier bail petition, whether argued or not and whether expressly dealt with in the order of dismissal or not, could not be taken as a fresh ground in subsequent bail petition---Grounds of daily diaries regarding recovery of vehicle and report of Forensic Laboratory were available to the accused at the time of arguing the bail application, which was dismissed---Accused could not take the same grounds in second petition---Complainant was not present in the court to verify the contents of his undertaking/affidavit---Accused was involved in 07 criminal cases/FIR of similar nature---Several cars of other FIRs were also recovered on the indication of accused, challan had already been submitted in the Court---Bail petition was dismissed, in circumstances.

Nazir Ahmed and another v. The State and others PLD 2014 SC 241; Muhammad Riaz v. The State 2002 SCMR 184; Amir Masih v. The State and another 2013 SCMR 1524 and Muhammad Aslam v. The State and others PLD 2015 SC 41 rel.

2020 SCMR 937; 2020 SCMR 594; 2020 SCMR 1182; 2017 SCMR 325; 2016 SCMR 1447 and Rehmat Ullah v. State 2011 SCMR 1332 ref.

Sher Afzal Khan Marwat and Danish Akbar for Petitioner/accused.

Zumurd Khan, State Counsel.

2022 M L D 329

[Islamabad]

Before Tariq Mehmood Jahangiri, J

KHURRAM IMTIAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.687-B of 2021, decided on 15th July, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Further inquiry---Allegation against the accused was that he issued cheques to the complainant which were dishonoured, when presented before the Bank---Prosecution case was that there was business relationship between the parties and cheques were issued against the business transaction---Investigating Officer had admitted that the accused had made partial payment of Rs. ten million approximately to the complainant---Offence did not fall within the prohibitory clause of S.497, Cr.P.C---Circumstances suggested that it was not a case where bail should be refused as an exception---Ultimate conviction and incarceration of guilty accused could repair the wrong caused by mistaken relief of bail after arrest but no satisfactory reparation could be offered to the accused for his unjustified incarceration if he was acquitted ultimately---Investigation in the case had been completed---Accused was previously non-convict---Accused was no more required by the police for the purpose of further investigation---Accused was behind the bars without any progress in the trial---Fair and speedy trial was one of the fundamental rights of the petitioner---No moral and legal compulsion existed to keep the accused behind the bars for an indefinite period which amounted to punishment without trial---Tentative assessment of record showed that the accused had made out a case of further inquiry as envisaged under S.497(2), Cr.P.C---Bail petition was allowed, in circumstances.

Tariq Bashir and others v. The State PLD 1995 SC 34; 2016 SCMR 1439; 2020 SCMR 1258; 2020 SCMR 717; Saeed Ahmed v. The State 1996 SCMR 1132; Muhammad Shabbir v. The State and others 2020 YLR Note 22; Riaz Jafar Natiq v. Muhammad Nadeem Dar 2011 SCMR 1708 and Babar Hussain v. The State and another 2020 SCMR 871 rel.

Raja Rizwan Abbasi for Petitioner/accused.

Sadaqat Ali Jahangir, State Counsel.

Muhammad Akram, Inspector.

2022 M L D 356

[Islamabad]

Before Athar Minallah, CJ

MAQBOOL AHMED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.842-B of 2020, decided on 6th August, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.364-A & 376---Kidnapping or abducting a person under the age of fourteen---Rape---Bail, refusal of---Delay in conclusion of trial---Scope---Accused through third bail application sought bail on statutory ground of delay in conclusion of trial---Sufficient material was brought on record to, prima facie, connect the accused with the commission of offence---Gravity of the offence raised concerns that if released on bail the accused might repeat the offence---Nine witnesses had already been examined and the remaining three witnesses were to be produced before the Court so that trial could be concluded---Bail was declined, in circumstances.

Raja Rizwan Abbasi for Petitioner.

Syed Zain-ul-Haq for Complainant.

Malik Talha Ahmed Rahim, State Counsel.

2022 M L D 405

[Islamabad]

Before Aamer Farooq and Tariq Mehmood Jahangiri, JJ

HUSSAIN LAWAI---Petitioner

Versus

The STATE and 2 others---Respondents

Writ Petition No.1701 of 2021, decided on 8th June, 2021.

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

----S.9---Constitution of Pakistan, Art.199---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Constitutional petition---Corruption and corrupt practices---Offence of money laundering---Bail, grant of---Rule of consistency---Delay in conclusion of trial---Scope---Allegation against accused was that he played a key role as President of a bank in preparation of fraudulent proposal, in the approval of loan facility for a company, in line with the plan of the then President of Pakistan---Approval of the projected proposal was also shared with the National Bank of Pakistan which was owned by Government of Pakistan and the same resulted in withdrawal of equity---Accused had also taken illegal gratification for the purchase of a house in the name of his wife---Held; accused suffered from several diseases---All the accused persons arrested in the case had been released on bail after arrest, hence, the accused was also entitled for the grant of bail after arrest on the principle of consistency---Entire case depended on documentary evidence which had already been collected by the investigating agency---Prosecution had failed to satisfy the Court that the inordinate delay in conclusion of trial was not partly attributed to it---Constitutional petition was allowed and the accused was admitted to post-arrest bail, in circumstances.

2017 SCMR 1194; 2016 SCMR 1225; Ghulab Khan v. Chairman N.A.B and another 2020 SCMR 285; Muhammad Daud and another v. The State and another 2008 SCMR 173; Sheraz v. The State 2021 MLD 292; Muhammad Azam v. The State 2008 SCMR 249; Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092; Khawaja Salman Rafique and another v. National Accountability Bureau through Chairman and others PLD 2020 SC 456; Nazir Ahmed Shaikh and others v. National Accountability Bureau and others 2020 SCMR 297 and Muhammad Jawed Hanif Khan and another v. National Accountability Bureau Sindh and others 2020 SCMR 185 ref.

Dinshaw Hoshang Anklesaria v. National Accountability Bureau (NAB) through Chairman and others 2021 SCMR 699; Talat Ishaq v. NAB PLD 2019 SC 11; Muhammad Jahangir Badar v. The State and others PLD 2003 SC 525; Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092; Khawaja Anwer Majid v. National Accountability Bureau through Chairman NAB and another PLD 2020 SC 635 and Saeed Ahmed v. The State 1996 SCMR 1132 rel.

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

----S.497---Bail---Scope---Bail is not to be withheld as punishment---No legal or moral compulsion exists to keep the people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds exist to disclose their complicity---Ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail after arrest granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.

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

Zaigham Ashraf v. The State and others 2016 SCMR 18 rel.

Syed Hamid Ali Shah for Petitioner.

2022 M L D 523

[Islamabad]

Before Aamer Farooq, J

TAHIR ZAHOOR AHMAD and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Revisions Nos.68 and 69 of 2021, decided on 20th October, 2021.

Penal Code (XLV of 1860)---

----Ss. 302, 376, 176, 109, 364, 368, 201, 511 & 118---Criminal Procedure Code (V of 1898), S. 265-C & 265-D---Constitution of Pakistan, 1973, Art. 10-A---Applications for the supply of statements and documents to the accused before framing of charge and for supply of CCTV footage were dismissed---Validity---Admittedly, the petitioners had been provided copies of the statements recorded under S.161, Cr.P.C. separately, however, they required the statements of the persons, who were not part of prosecution witnesses but their statements were recorded by way of 'daryaft' in police diaries---Accused was entitled to have access to all inculpatory and exculpatory evidence and even though a person might not be a witness, but his statement recorded before the police under S.161, Cr.P.C, might have an impact on prosecution's case and/or they might be utilized by the defence during the course of evidence as permissible under the law---In so far as supply of CCTV footage was concerned, the prosecution had already shown willingness to provide the transcript of CCTV footage as recorded in Zimni---Undoubtedly, under Art. 10-A of the Constitution of Pakistan, right of fair trial was a fundamental right of every citizen of Pakistan---Copy of the recording did not fall within the purview of documents mentioned in S.265-C, Cr.P.C and assuming even if it did, the supply of same could be withheld on account of public interest---CCTV footage was regarding contents of some of the images, which allegedly led to killing of deceased---Provision of recording of the CCTV footage to the accused persons would run a high risk that the video recording might be made public and/or prejudice the trial---Tampering of the copies could also not be ruled out, which might lead to complications in the course of trial---Thus, it would be appropriate that copy of CCTV footage be provided to the accused persons to meet the ends of justice and for safe administration of justice---Once the said document/evidence was exhibited in evidence, the petitioners and other co-accused then had the advantage of cross-examining the prosecution witnesses, if they so desired on the said piece of evidence and also to answer the questions put to them under S.342, Cr.P.C.---In any case, the defence would have the transcript of the contents of the CCTV footage, hence no prejudice would be caused to the accused by non-supply of the said recording at that stage---Petitions were disposed of accordingly.

Muhammad Aslam v. The State PLD 1995 Lah. 632; Nazar Muhammad v. Mushtaq Ahmad and others PLD 1996 Lah. 277; Nazar Ajeet Singh v. The State PLD 1981 Cr.C. (Lahore) 342; Nasrullah v. The State 1980 PCr.LJ 5; Sikandar Ali Lashari v. The State 2016 YLR 62 and Muhammad Safdar v. Presiding Officer Accountability Court No.IV, Karachi and 4 others 2020 PCr.LJ 683 ref.

Sharafat v. The Crown PLD 1953 Dacca 10; Muhammad Aslam v. The State PLD 1995 Lah. 632; Nazar Muhammad v. Mushtaq Ahmad and others PLD 1996 Lah. 277; Nazar Ajeet Singh v. The State PLD 1981 Cr.C. (Lahore) 342; Sikandar Ali Lashari v. The State 2016 YLR 62 and Muhammad Safdar v. Presiding Officer Accountability Court No.IV, Karachi and 4 others 2020 PCr.LJ 683 rel.

M. Akram Qureshi for Petitioner (in Criminal Revision No.68 of 2021).

Asad Jamal for Petitioners (in Criminal Revision No.69 of 2021).

2022 M L D 709

[Islamabad]

Before Aamer Farooq, J

Syed IKRAM MUSTAFA---Appellant

Versus

Mian WALI MUHAMMAD---Respondent

R.F.A. No.330 of 2020, decided on 4th January of 2022.

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

----S.7---Eviction of tenant---Arrears of rent and mesne profit---Appellant obtained portion of house from the owner vide lease agreement---After death of the owner, respondent (legal heir/brother of owner) filed eviction application against the appellant and got the house vacated accordingly---Respondent then filed suit for recovery of arrears of rent and mesne profit---Suit was decreed---Appellant contended that he continued the possession of the property on the insistence of legal heir/sister of the owner (deceased) hence became her tenant; that he had been paying rent to the heir/sister and that claiming mesne profit as double the amount of rent was not justified---Held, that appellant was admittedly the tenant of deceased owner---Respondent and his sister were the sole heirs of the property---In terms of compromise between the said heirs recorded through decree, respondent became the exclusive owner of the property---Respondent became landlord after demise of original owner and compromise, he (respondent) was entitled to receive rent---Appellant had failed to discharge the burden of proof by showing that he had been furnishing rent either to the respondent or legal heir as no evidence was led to the effect and only a copy of Money Order was produced in the court---Once the lease expired, the mesne profit could be claimed as double the amount of rent---Appellant could not justify any factual/legal impediment to the claim of respondent---Appeal was dismissed accordingly.

Iqbal Muhammad Khan v. Abdul Aziz 2015 CLC 1667; Malik Naveed Ahmed v. Mrs. Nasreen Hameed 2005 SCMR 357 and Dawood Hercules Chemicals Limited v. Water and Power Development Authority 1991 CLC Note 269 rel.

(b) Islamic Law---

----Inheritance---Entitlement to collect rent by legal heir of the deceased landlord's property---Principle---Under Islamic Law of Inheritance, at the time of death, property of the deceased devolved upon legal heirs by operation of law and no final order/judgment was required for the same---After demise of landlord, legal heirs were entitled to receive the rent as they became the landlord.

Haji Muhammad Hanif v. Muhammad Ibrahim and others 2005 MLD 1; Mst. Juma v. Umar Akhtar and others 2006 MLD 47 and Mazhar Saeed and another v. ADJ and 11 others 2011 YLR 3089 rel.

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

----Arts.117 & 118---Non-payment of rent alleged by landlord---Onus to prove---Scope---If the landlord alleged non-payment of rent, burden was upon tenant to show that rent stood paid.

Muhammad Siddique and another v. Muhammad Riaz and another 2013 YLR 1200 and Allah Din v. Habib PLD 1982 SC 465 rel.

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

----Art.76---Marked document---Evidentiary value---Scope---Mark has no evidentiary value, as the concept is not provided in Qanun-e-Shahadat, 1984 or any other law.

Sh. M. Khizar-ur-Rashid for Appellant.

2022 M L D 752

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MAZHAR IQBAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.34 of 2021, decided on 16th September, 2021.

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

----S.489-F---Dishonouring of cheque---Pre-conditions---To constitute an offence, dishonesty on the part of person issuing cheque is pre-condition towards repayment of amount or fulfilment of an obligation.

Allah Ditta v. The State 2013 SCMR 51 and Muhammad Sultan v. The State 2010 SCMR 806 rel.

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

----S.489-F---Civil Procedure Code (V of 1908), O.XXXVII, R.l---Criminal Procedure Code (V of 1898), Ss.435 & 439---Dishonouring of cheque---Appreciation of evidence---Un-explained delay in FIR---Recovery suit, dismissal of---Revisional jurisdiction of High Court---Scope---Complainant got registered FIR against accused with an unexplained delay of three years---Accused was convicted by Trial Court and Lower Appellate Court for issuing a cheque which was dishonoured on presentation---Validity---Date of occurrence mentioned in FIR was 16-06-2006 whereas date of registration of FIR was 11-05-2009, there was no plausible explanation for reporting of the matter to police after an inordinate delay of about three years---Civil suit filed by complainant under O.XXXVII C.P.C. was dismissed by Trial Court---High Court while exercising revisional jurisdiction in terms of S.435, Cr.P.C. had to examine record for the purpose of satisfying its conscious to check correctness, legality or propriety of any findings / sentence passed by Courts below---Duty conferred upon High Court on its revisional side compelled it to reprise the entire evidence on the touchstone of principle of fair trial as referred in Art.10-A of the Constitution if Lower Appellate Court in disposing of appeal had not discussed evidence at all---High Court set aside conviction and sentence awarded by two Courts below and accused was acquitted of the charge, as prosecution had failed to prove its case beyond reasonable doubt---Revision was allowed accordingly.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Aslam v. The State 2011 SCMR 820 rel.

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

----S. 540---Witness, summoning of---Principle---When prosecution wishes to examine a witness whose name is not included in list of witness, it cannot claim as right but is required to file a petition under S.540, Cr.P.C. or other provisions of law---Conscious of Court is required to be satisfied that examination of such witness is needed for discovery of such truth.

Rafiullah v. 11th Additional District and Sessions Judge (West), Karachi and another 2020 MLD 942; Mukhtiar and another v. The State and another 2018 YLR 2490; Nazir Ahmad v. Khalid Pervaiz and 4 others 1997 MLD 2077; Shahbaz Masih v. The State 2007 SCMR 1631; Ghulam Mustafa and another v. The State and 2 others 2021 PCr.LJ 417; Muhammad Sajjad and 2 others v. The State PLD 1960 520; Muhammad Sadiq and 2 others v. The State 2006 YLR 3212 and Wasiullah v. Ali Mohseen and 2 others 2016 PCr.LJ 1124 rel.

(d) Evidence---

----Exhibit and mark---Effect---Document which has not been exhibited cannot be read in evidence.

Mst. Shaukat Bibi and another v. The State and another 2021 YLR Note 1; Muhammad Akram and others v. Irshad Mahmood and others 2016 CLC 1208 and Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604 rel.

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

----S.342---Evidence not put to accused---Effect---No conviction can be based upon evidence which has not been put to accused in his statement under S.342, Cr.P.C.

Ameer Zeb v. The State PLD 2012 SC 380; Qaddan and others v. The State 2017 SCMR 148 and Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 rel.

Syed Iqbal Hussain Shah Gillani and Naeem-ur-Rehman for Petitioner.

Ch. Zubair Mehmood Gujjar for the Complainant.

Syed Shahbaz Shah, State Counsel.

Adnan Hussain, A.S.I.

2022 M L D 831

[Islamabad]

Before Babar Sattar, J

MUHAMMAD KHALID MUNIR---Petitioner

Versus

NAZAR SADIQ and another---Respondents

Writ Petition No.822 of 2021, decided on 22nd September, 2021.

(a) Administration of justice---

----Legal system---Courts, duty of---Scope---Courts in our legal system are Courts of law as well as Courts of equity---Exercise of discretion while adjudicating a claim even within equitable jurisdiction, cannot be arbitrary---High Court observed that in our adversarial system of justice, if Court fails to consider competing interests of litigating parties by absolving the party who is delinquent from its obligation to show sufficient cause from non-appearance before the Court, the Court could inadvertently end up facilitating abuse of process of Court by enabling a party to delay adjudication of claims before it.

(b) Constitution of Pakistan---

----Arts. 4 &10-A---Right to fair trial---Discretion of Courts, exercise of---Principle---Such right under Art.10-A of the Constitution does not mean unqualified entitlement to have claims adjudicated at the whims of one party to the dispute---Claims have to be adjudicated according to law with a focus on rights of both claimant and defendant---Court is vested with no unguided discretion to ignore statutory intent and while administering and regulating a trial its failure to exercise authority to adjudicate a claim in the manner and within time frames conceived by C.P.C. would prejudice interest of party contesting the claim---Right of such contesting party to fair trial under Art. 10-A of the Constitution and to be treated in accordance with law under Art. 4 of the Constitution must also borne in mind by Court--- Exercise of discretion by a Court arbitrarily in manner that excuses delinquent party thereby enabling it to delay adjudicatory process puts at stake public faith in justice system to dispense justice in timely manner, clutters Court dockets, consumes public resource by adding to cost of litigation and puts into question the ability of justice system to act as neutral arbiter of law.

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

----S.3---Limitation---Object, purpose and scope---Statutes prescribe limitation periods that determine outer limit of time period within which a claim under law can be enforced---Limitation provisions are of a mandatory nature and are not to be treated as technicalities.

(d) Laches, doctrine of----

----Object, purpose and scope---Doctrine of laches is rooted in the wisdom that equity does not help the indolent---Same principle is applicable where plaintiff fails to pursue his claim assiduously by not appearing before Court on date fixed for proceedings in the matter.

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

----S.12---Civil Procedure Code (V of 1908), O. IX, R.9---Constitution of Pakistan, Art.199---Constitutional petition---Suit dismissed for non-prosecution---Restoration---Time frame---Sufficient cause for non-appearance---Determination---Suit for specific performance of agreement to sell filed by respondent / plaintiff was dismissed for non-prosecution--- Two applications for restoration were dismissed by Trial Court but on third application, the suit was restored---Validity---Within Civil Procedure Code, 1908, time frames are provided to regulate cycle of a dispute that enters adjudicatory process---If such time frames are not abided by, the cost inflicted on public interest is debilitating--- Civil Procedure Code, 1908, confers penal powers on Court to enforce prescribed time lines to move along adjudication of suit in order to conclude proceedings within a reasonable period of time--- Entire scheme is meant to ensure that justice is delivered according to law within time lines prescribed by law--- Order of restoration of suit absolved respondent / plaintiff of his obligation to establish sufficient cause as required under O.IX, R.9, C.P.C.---Trial Court did not bring into consideration the question of whether or not respondent / plaintiff had sufficient cause for his non-appearance while allowing his application---Trial Court acted in excess of its jurisdiction under law---Trial Court was under obligation to apply test of sufficient cause and had documented its reasons as to why its conscience was satisfied that non-appearance of respondent / plaintiff before Trial Court on date fixed was excusable in accordance with law---High Court set aside order restoring the suit and remanded the matter to Trial Court for decision afresh on application--- Constitutional petition was allowed accordingly.

Muhammad Yaqub v. Kala Khan and 7 others 1995 MLD 1161; Mst. Hussain Jan and 8 others v. Muhammad Suleman through Legal Heirs and 16 others PLD 1994 Pesh. 95; Abdul Rashid v. Director-General, Post Offices, Islamabad and others 2009 SCMR 1435; Sindh High Court in Northern Polythene Limited (NPL) through Director v. National Bank of Pakistan and 3 others 2013 CLD 1053; Rai Muhammad Riaz (decd) through L.Rs. and others v. Ejaz Ahmed and others PLD 2021 SC 761 and Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources v. Durrani Ceramics and others 2014 SCMR 637 ref.

Abid Hussain Ranjha for Petitioner.

Muhammad Sadiq Khan for Respondent No.1.

2022 M L D 905

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

NOUMAN MUSHTAQ---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.759-B of 2020, decided on 22nd June, 2020.

(a) 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---Boarderline case---Non-availability of report of Forensic Laboratory---Further inquiry---Scope---Accused was alleged to have been found in possession of 1350 grams of charas---Quantity of 1350 grams charas, which was a borderline case and was marginally in excess of the quantity---Samples separated for analysis were sent to the Forensic Laboratory, report whereof was still awaited---Case of accused required further probe and fell within the ambit of subsection (2) of S. 497, Cr.P.C., which entitled him to the concession of bail---Petition for grant of bail was allowed.

Aya Khan and another v. The State 2020 SCMR 350; Saeed Ahmed v. The State and others PLJ 2018 SC 812; Naimatullah and another v. The State 2017 MLD 1097 and Shahzad Khizar Hayat v. The State 2014 YLR 849 rel.

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

----S.9---Criminal Procedure Code (V of 1898), S. 497---Possession of narcotics---Bail---Non-availability of report of Forensic Laboratory---Scope---Non-availability of report of Forensic Laboratory in respect of narcotic substances allegedly recovered makes the case of the accused arguable for the purposes of bail.

(c) Constitution of Pakistan---

----Arts.4 & 9---Right of individuals to be dealt in accordance with law---Security of person---Scope---Accused person cannot be left at the mercy of the prosecution to remain in jail for an indefinite period---Liberty of an individual has been guaranteed by the Constitution and to have a speedy trial is an inalienable right of every accused person.

Imtiaz Ahmed v. The State through Special Prosecutor, ANF 2017 SCMR 1194 rel.

Ms. Huma Jamil Babur for Petitioner.

2022 M L D 920

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Mst. NAILA HAMEED---Petitioner

Versus

EJAZ MAHMOOD and 2 others---Respondents

Writ Petition No.2958 of 2021, decided on 23rd August, 2021.

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

----S.25---Constitution of Pakistan, Art.199---Constitutional petition---Guardianship of minor daughters---Concurrent findings of facts by two Courts below---Un-explained delay in filing appeal---Respondent / father was appointed guardian of minor daughters by Trial Court and appeal filed by petitioner / mother was dismissed by Lower Appellate Court as the same was barred by limitation---Validity---Concurrent findings of both the Courts were against petitioner / mother---High Court was Court of equity and petitioner / mother for equitable relief was supposed to put-forth some convincing materials which would have justified filing of her appeal after considerable delay---Only vigilant not the indolent was to get relief from Court of equity or law respecting her right which was violated or infringed---Petitioner / mother remained in deep slumber for such a long period for realization of her legal rights before High Court which she alleged to have been violated by respondent / father---In order to get discretionary and equitable relief, parties should approach to Courts with clean hands---In case of concurrent findings of Courts below, scope of Constitutional petition was very limited---High Court declined to interfere in judgments and decrees passed by two Courts below as the same were in accordance with law and facts---Constitutional petition was dismissed, in circumstances.

Water and Power Development Authority's 1988 SCMR 1354; Khushi Muhammad and others v. Mst. Fazal Bibi and others PLD 2016 SC 872; Shafqatullah and others v. District and Sessions Judge, Nowshera, N.W.F.P and 4 others 2001 SCMR 274; Manzoor Hussain and 3 others Vs. Muhammad Siddique 2000 CLC 623; Shahnaz Parveen and another v. Javed Yaqoob and others 2020 MLD 638 and University of the Punjab and another v. Malik Jehangir Khan 1994 PLC (C.S.) 314 and Syed Arif Ali Sabri v. Abdul Samad through L.Rs. and 2 others 2008 YLR 2309 rel.

(b) Constitution of Pakistan---

----Art.199(1)(a)(i)---Writ of certiorari---Issuance---Principle---Certiorari is only available to quash a decision for an error of law---Such writ is also issued for correcting errors of jurisdiction when inferior Court or tribunal acts without jurisdiction or in excess of its jurisdiction or fails to exercise its jurisdiction or where Court or tribunal acts illegally in exercise of its undoubted jurisdiction and decides a matter in violation of principles of natural justice---High Court while issuing writ of certiorari acts in exercise of supervisory and not appellate jurisdiction---In such jurisdiction, High Court does not review findings of facts reached by inferior Court or tribunal.

Amjad Khan v. Muhammad Irshad (Deceased) through LRs 2020 SCMR 2155; President All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others 2020 SCMR 260; Chief Executive MEPCO and others v. Muhammad Fazil and others 2019 SCMR 919; Chairman, NAB v. Muhammad Usman and others PLD 2018 SC 28 and Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 rel.

2022 M L D 958

[Islamabad]

Before Aamer Farooq, J

NAUMAN HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.845-B of 2021, decided on 20th September, 2021.

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

----S.497---Penal Code (XLV of 1860), Ss.377 & 377-B---Un-natural offence---Sexual abuse---Bail, refusal of---Scope---Allegation against accused was that he along with co-accused got the nude videos of complainant's son, then blackmailed him and also sexually abused him---Maximum punishment for the offence under S.377-B, P.P.C., was 07 years imprisonment and fine---Offence did not fall within the prohibitory clause of S. 497, Cr.P.C. and where such was the case, grant of bail was a rule and refusal was an exception---One of such exceptions was repetition of the offence and the other was tampering with evidence---Accused along with other accused used to share video/clips of victim on social media---Likelihood existed if the accused was enlarged on bail, he might commit the offence again---Report by the Director, FIA, was categoric that offence under S.377, P.P.C., was committed---Petition for grant of bail was dismissed, in circumstances.

Tariq Bashir and others v. The State PLD 1995 SC 34 rel.

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

----Ss.377-A & 377-B---Sexual abuse---Scope---In order to constitute offence of S.377-B, P.P.C., no actual penetration is required and the offence is committed even where there is stroking, caressing, exhibitionism, etc.

Sajid Mehmood Chaudhry for Petitioner.

Syeda Kashmala and Ms. Ateeqa Ishtiyaq for the Complainant.

Aimal Amjad, State Counsel.

2022 M L D 1041

[Islamabad]

Before Tariq Mehmood Jahangiri, J

YASIR HAFEEZ and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1381-B of 2021, decided on 18th February, 2022.

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

----S.498---Penal Code (XLV of 1860), S. 363---Kidnapping---Pre-arrest bail, refusal of---Scope---Accused persons (uncle and cousin of minor) were alleged to have forcibly abducted the minor aged about 08 years from his school on gun point---Accused persons were specifically nominated in the FIR on the complaint of grandfather of the minor---Police had also recorded statement of an eye-witness of the occurrence---Security guard of the school had stated in his statement under S.161, Cr.P.C., that on the date of occurrence, the minor was kidnapped by the accused in a black car forcibly from outside the school---Minor was in the custody of his father and the petition filed by mother of minor under S. 491, Cr.P.C., had been dismissed---Minor was in the custody of his mother but the practice of kidnapping and snatching the minor by relatives could not be allowed---Petition for grant of pre-arrest bail was dismissed, in circumstances.

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

----S.498---Pre-arrest bail---Scope---While deciding the 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 that may prejudice the case of either party.

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

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

----S.498---Pre-arrest bail---Scope---Bail before arrest cannot be claimed as a matter of legal right in each case and also it cannot be expected that it would be granted in each case unless legal requirements laid down are met---Bail granted before arrest causes setback in investigation and can stand as stumbling block in the way of recovery of incriminating articles.

Waleed Arfaqat v. The State and another 2021 MLD 1226 ref.

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

----S.498---Pre-arrest bail---Scope---Relief of pre-arrest bail is granted only in those matters where it would appear that registration of such cases was passed on enmity/mala fide or where no offence was shown to have been committed on the very face of record.

Sarwar Sultan v. The State PLD 1994 SC 133 and Kamran Attaullah and another v. The State 2021 SCMR 449 rel.

PLD 1983 SC 82; 1996 SCMR 74; 1996 SCMR 71 and 2019 SCMR 1129 ref.

Syed Iqbal Hussain Shah Gillani, Muhammad Younis Kiani for Petitioners.

Naveed Malik for Respondent No.2.

Fahad Ali, State Counsel.

2022 M L D 1070

[Islamabad]

Before Arbab Muhammad Tahir, J

YASIR KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.03-B of 2022, decided on 14th January, 2022.

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

----S.498---Pre-arrest bail---Successive bail petitions---Scope---Accused can approach the same court with a fresh pre-arrest bail petition if the earlier one has been withdrawn without advancing arguments on merits, the court must be watchful that the successive petition is not readily entertained or the concession of ad interim bail granted to the accused, unless he furnishes satisfactory explanation for withdrawal of the first petition and filing of the second one.

Inam Ullah v. The State PLD 2021 SC 892 rel.

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

----S.498---Pre-arrest bail---Successive bail petitions---Scope---Obligatory for the accused to furnish satisfactory explanation for withdrawing the first pre-arrest bail petition at the time of entertaining the second pre-arrest bail petition---Unless there is satisfactory explanation, the second bail petition should not be entertained, because otherwise the accused would have an unchecked licence to abuse the concession of ad interim pre-arrest bail by misusing the court process, and hoodwink the police to prolong the investigation---While the accused has access to courts to seek pre-arrest bail, even successively for justifiable reasons, he cannot be permitted to abuse the concession of ad interim bail to stall the investigation and play hide and seek with the criminal justice system---If the accused fails to give satisfactory explanation for his withdrawal of the earlier pre-arrest bail petition and the need for filing the fresh one, his second or successive pre-arrest bail petition shall not be entertained.

Inam Ullah v. The State PLD 2021 SC 892 rel.

(c) Constitution of Pakistan---

----Art.189---Decisions of Supreme Court binding on other Courts---Scope---Decisions of the Supreme Court to the extent it decides a question of law or enunciates a principle of law is binding on all other courts of the country including the High Courts, under the mandate of Art.189 of the Constitution of Pakistan, 1973.

Hasnain Raza and Nazia Ali v. Lahore High Court, Lahore and others PLD 2022 SC 7 ref.

Petitioner in person along with Zeeshan Riaz Cheema for Petitioner.

Shahid Muhammad Mughal for the Complainant.

Zeeshan Babr, State counsel with Asif Ali S.I.

2022 M L D 1232

[Islamabad]

Before Arbab Muhammad Tahir, J

MUHAMMAD RAFIQUE and another---Petitioners

Versus

TASADAQ HUSSAIN and another---Respondents

Criminal Revision No.47 of 2020, decided on 22nd February, 2022.

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

----S.540---Power to summon material witness or examine person present---Delayed application---Scope---Court cannot summarily dismiss application for additional evidence by merely holding it a belated move rather the Court has to examine whether the examination of the witness or production of document is essential for just decision of the case---Object of the provision is that there should be no failure of justice on account of mistake of either party in bringing the valuable evidence on record---Said provision is a general provision which applies to all proceedings, during inquiry and trial under the Cr.P.C.---Said provision empowers the Court to summon any witness, take additional document at any stage during the inquiry or trial---Discretion is to be exercised judicially, as the wider the power, the greater is the necessity of application of judicial mind---Court has to keep in mind that while during the trial of the case, it has to find out truth to render judgment in accordance with law---Court this very purpose is competent enough to proceed under the said provision on its own.

Ansar Mahmood v. Abdul Khaliq 2011 SCMR 713; Muhammad Murad Abro v. The State through AG Balochistan 2004 SCMR 966; Dildar v. State through Pakistan Narcotics Board, Quetta PLD 2001 SC 384 Iddar and others v. Aabida and another AIR 2007 SC 3029 ref.

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

----S.540---Constitution of Pakistan, Art.10-A---Power to summon material witness or examine person present---Right to fair trial---Scope---Court cannot allow one of the parties to fill omissions in their evidence or extend a second chance to a party to improve their case or the quality of the evidence tendered by them---Any such step would smear the objectivity and neutrality of the Court which is its hallmark---Such favoured intervention, no matter how well meaning, strikes at the very foundations of a fair trial, which is recognized as a Fundamental Right under Art. 10-A of the Constitution.

Muhammad Naeem v. The State PLD 2019 SC 669 ref.

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

----S.5---Investigation and procedure---Report of local commission---Objections---Scope---Where petitioners had raised objections upon the report of local commission, High Court observed that the proceedings were conducted in presence of all the concerned, including the petitioners and it did not find mention any objection at the relevant time, which the petitioners had raised during the spot inspection---Objections were turned down.

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

----S.3---Prevention of illegal possession of property, etc.---Scope---Issues which fall for decision under Illegal Dispossession Act, 2005, would be whether the offence against lawful owner or occupier, as described in the complaint, has taken place and whether it is the accused who has committed it without any lawful authority, while no past record of the accused needs to be gone into by the Court---Essentials to constitute an act as an offence under the Illegal Dispossession Act, 2005, it is obligatory for the complainant to enjoy lawful ownership or possession at the time of alleged dispossession, at the hands of the accused through an unlawful course---Determination of the ownership or otherwise of the subject matter in a complaint is not the exclusive job to be conducted, rather the complaint also covers illegal dispossession having lawful occupation of the disputed property---Underline principle of deciding a complaint under the Illegal Dispossession Act, 2005, the complainant has to prove that the land was in his possession and that he was illegally and without due course of law was dispossessed from the said land with specific reference to time and date.

Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769 ref.

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

----Ss.3 & 5---Prevention of illegal possession of property---Investigation and procedure---Scope---Illegal Dispossession Act, 2005, is a special law intended to curb illegal dispossession and is not parallel to proceedings in a civil suit---No bar exists in simultaneous proceedings under the civil suit, criminal motion and the complaint under the Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005 specifically envisages time line for decision of the case---Under S.5(2) of the Illegal Dispossession Act, 2005, or upon taking cognizance of a case, the Court shall proceed with the trial on day to day basis and shall decide the same within sixty days and for any delay, sufficient reasons shall be recorded---Section 5(3) stipulates that the Court shall not adjourn the trial for any purpose unless such adjournments is, in its opinion necessary in the interest of justice and no adjournment shall be granted for more than seven days---Proceedings under Illegal Dispossession Act, 2005, are summary in nature to be concluded within sixty days and in case there is any delay, it is obligatory for the Court to record reasons in writing for such a delay while frequent adjournments are to be avoided.

Sayyed Murtaza Ali Pirzada for Petitioners.

Asif Irfan for Respondents.

2022 M L D 1263

[Islamabad]

Before Sardar Ejaz Ishaq Khan, J

JEHANZEB KHAN---Petitioner

Versus

JUSTICE OF PEACE, ADDITIONAL SESSIONS JUDGE-III, ISLAMABAD-EAST and others---Respondents

Writ Petition No.363 of 2022, decided on 3rd February, 2022.

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

----Ss.22-A & 22-B---Powers of Ex-officio Justice of Peace---Registration of FIR---Dispute of civil nature---Scope---Petitioner assailed order passed by Ex-officio Justice of Peace directing the registration of FIR on the application of the respondent company---Case of company was that the petitioner had continued to retain the company car given to him for the purposes of his employment long after him ceasing to be an employee and thereby committed criminal breach of trust---Contention of petitioner was that an employee of the company had promised to pay his outstanding salary with the commitment that till payment of the due amount he would not be dispossessed from the vehicle---Held; alleged verbal promise, for which no documentary proof was on record, was inconsistent with the application filed by the company before Ex-officio Justice of Peace---Alleged undertaking was not worthy of any credence unless proved in evidence led at the trial---Petitioner had already filed a suit for recovery of his dues from the company, his continued possession did not appear to be warranted in law---Temporary injunction granted by Trial Court was against illegal snatching and in its terms had created an exception for recourse to the legal process---Constitutional petition was dismissed.

2019 MLD 503; 2019 PCr.LJ Note 23; 2019 YLR 1299; 2017 PCr.LJ Note 179 and 2019 YLR 1897 distinguished.

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

----Ss.22-A & 22-B---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Powers of Ex-officio Justice of Peace---Judicial review---Scope---Court's role is limited to examining the illegality or lack or excess of jurisdiction by the Ex-officio Justice of Peace in passing an order---Only the orders passed, directions issued and actions taken by the Ex-officio Justice of Peace in excess of his powers can be quashed through judicial review.

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

----S.22-A---Powers of Ex-officio Justice of Peace---Ipse dixit of police---Scope---Ex-officio Justice of Peace is not bound by the report of the police as he exercises a quasi-judicial function by looking at all the facts and circumstances before him, the police report being only one of them---Entire purpose of S.22-A(6), Cr.P.C., will be defeated if the police report becomes binding on a Justice of Peace.

Younus Abbas v. Additional Sessions Judge, Chakwal PLD 2016 SC 581 ref.

2022 M L D 1342

[Islamabad]

Before Tariq Mehmood Jahangiri, J

SALMAN AHMAD---Petitioner

Versus

Syed ALI RAZA NAQVI and another---Respondents

Criminal Miscellaneous No.1229-BC of 2020, decided on 9th June, 2022.

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

----S.497(5)---Constitution of Pakistan, Art.9---Bail, cancellation of---Grounds---Ordinarily the superior Courts are reluctant to interfere into the order extending concession of bail---Rationale behind this is that once concession of bail is granted by a Court of competent jurisdiction then very strong and exceptional grounds would be required to hamper with the concession extended to a person who is otherwise clothed with free life---Any contrary action of the court would be synonymous to curtailing the liberty of such person, which otherwise is a precious right guaranteed under the Constitution---Grounds for cancellation of bail provided.

Following are some of the grounds for cancellation of bail granted to an accused:

(i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice;

(ii) The accused has misused the concession of bail in any manner;

(iii) The accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses;

(iv) There is likelihood of absconsion of the accused beyond the jurisdiction of court;

(v) The accused has attempted to interfere with the smooth course of investigation;

(vi) The accused misused his liberty while indulging into a similar offence; and

(vii) Some fresh facts and material has been collected during the course of investigation which tends to establish guilt of the accused. [p. 1345] A & B

Sami Ullah and another v. Laiq Zada and another 2020 SCMR 1115 and Sharif Khan v. The State and another 2021 SCMR 87 rel.

Qaiser Imam Ch. for Petitioner.

Barrister Afzal Hussain for Respondent No.1./accused.

Fahad Ali, State Counsel.

2022 M L D 1373

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Mst. NAUSHEEN SAEED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.691-B of 2022, decided on 8th June, 2022.

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

----S.498---Penal Code (XLV of 1860), Ss. 188 & 435---Forest Act (XVI of 1927), S. 26---Islamabad (Preservation of Landscape) Ordinance (III of 1966), S. 5---Pakistan Environmental Protection Act (XXXIV of 1997), Ss. 11 & 19---Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance (LXX of 1979), S. 26---Setting fire in a forest for purposes of recording a social media video---Ad interim pre-arrest bail, confirmation of---Female accused---Most sections of FIR bailable---First Information Report not registered on complaint of relevant official---In the present case, the Investigation Officer conceded that there was no evidence available against the accused that she herself had set fire in the area---Only evidence available was a social media video in which the accused could be seen shooting a video in front of fire in the jungle---Most of the sections leveled in the FIR were bailable, except S.188 P.P.C.---Under S.195, Cr.P.C. an FIR under S.188, P.P.C. could only be registered on written complaint of the public servant concerned, or of some other public servant to whom he was subordinate---In the present case, S.144, Cr.P.C. was imposed by an Addl. District Magistrate wherein, campfire in the National Park concerned was prohibited---Present FIR had neither been registered on the complaint of said public servant nor there was any allegation that the accused had committed an act of campfire in the National Park---First Information Report (FIR) had been registered on the complaint of an Environmental official of the relevant Development Authority---Section 435, P.P.C. provided that whoever caused damage to any property to the "amount of one hundred rupees or upwards", but the Investigating Officer conceded that there was no evidence on record that value of bushes etc. that were damages was Rs.100/- or upwards---As far as other sections leveled in the FIR were concerned, there was no other evidence available against the accused except the social media video, which did not show as to when and where it was recorded---If the accused being a female was sent behind bars, it would cause irreparable loss to her person and reputation---Ad-interim pre-arrest bail already granted to accused was confirmed, in circumstances.

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

----S.498---Ad interim pre-arrest bail, confirmation of---Grounds---Where a case has been registered with mala fide intention and by ulterior motives, and no sufficient evidence is available against the accused, and if arrest of the accused is intended by the prosecution, out of mala fide and by ulterior motives, bail before arrest can be confirmed.

Shahzada Qaiser Arfat alias Qaiser v. The State and others PLD 2021 SC 708; Khair Muhammad and another v. The State through P.G. Punjab and another 2021 SCMR 130 and Khalil Ahmed Soomro and others v. The State PLD 2017 SC 730 ref.

Muhammad Ahmad Pansota for Petitioner along with Petitioner in person.

Hasnain Haider for Respondent No.2/CDA.

Jamil Fayaz, State Counsel.

Sajid Cheema, D.S.P. (Legal).

2022 M L D 1426

[Islamabad]

Before Sardar Ejaz Ishaq Khan, J

Messrs NASEEM & COMPANY and others---Petitioners

Versus

CAPITAL DEVELOPMENT AUTHORITY and others---Respondents

Writ Petition No.3159 of 2020, decided on 4th March, 2022.

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

----Arts.85 & 86---Civil Procedure Code (V of 1908), O.XIII, R.2---Specific Relief Act (I of 1877), Ss.42 & 54---Additional evidence---Public and private documents---Production---Petitioner / plaintiff was allotted a plot by Capital Development Authority but the same was cancelled--- Petitioner / plaintiff claimed that Capital Development Authority failed to develop the site and instead of cancelling the plot should have allotted some other plot on other side which mode was adopted in case of many other allottees---Trial Court declined to direct Capital Development Authority to produce record as referred by petitioner / plaintiff, as additional evidence---Validity---Additional documentary evidence could be produced at a later stage in trial by showing good cause to the satisfaction of Court under O.XIII, R.2---Such exception was tied to documentary evidence in the possession or power of such party--- More liberal approach was to be followed for disclosure of record of public organizations than would be followed for private organizations--- Order passed by Trial Court was erroneous in labelling inability of petitioner / plaintiff to produce documents not in his possession or power as a lacuna in his case, and letting a custodian of public record withhold production of its record relevant to prove facts in issue---Trial Court mixed up legal burden of proof with evidential burden by fastening petitioner / plaintiff with obligation to produce documents not in his possession or power but in possession and power of Capital Development Authority---High Court set aside order in question and remanded the matter to Trial Court for decision afresh on the issue---Constitutional petition was allowed accordingly.

19th edition. The first edition of this leading work was published in 1898; Zakaullah Khan v. Muhammad Aslam and another 1991 SCMR 2126; Messrs Sentinel (Pvt.) Ltd. v. Mst. Gul Fareen Jana and another 2008 PLC 304; Pakistan Steel Mills Corporation Limited v. Malik Abdul Habib and another 1993 SCMR 848; Abdul Karim Nausherwani and another v. The State through Chief Ehtesab Commissioner 2015 SCMR 397 and Saeed Ahmed v. The State 2015 SCMR 710 ref.

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

----Arts.117 & 120---Burden of proof---Scope---Burden of proof has two interrelated but distinct facets: legal burden and evidential burden---Former remains on a party throughout the trial--- Legal burden is outcome of entirety of evidence before Court, regardless from which party or source the evidence originates--- Evidential burden is a shifting phenomenon, which is meant to originate from the party alleging existence of certain facts, but may shift to the other party as trial progresses.

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

----Art. 129, illustration (g)---Best evidence rule---Withholding of evidence---Presumption---Best evidence rule postulates that each party must produce all material evidence in its possession or power---Failure to do so entitles the Court to draw adverse inference against party failing to produce it.

(d) Evidence---

----Relevant facts---Discovery tools---There are several tools for disclosure of relevant facts by other party, including notices to admit facts, discovery, interrogatories, inspections, and the like---Unlike a criminal trial, overwhelming reliance on cross-examination trivializes utility of tools available in a civil trial---Trial Court must see C.P.C. as a toolkit for discovery of truth and should deploy the tools as exigencies require---If it looks hard enough, Court can always find right tool for the occasion.

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

----O.XV, R.3---Disposal of suit summarily---Principle---Civil trial needs not in all cases wait for entire evidence to be led on all issues--- In appropriate cases, Trial Court can invoke O.XV, R.3, C.P.C. to pronounce judgment, if sufficient evidence on foundational issues has come on the record to do so.

Sardar M. Haroon Sami for Petitioners.

2022 M L D 1459

[Islamabad]

Before Miangul Hassan Aurangzeb, J

KHALIQUE ZAMAN CHAUDHRY and 2 others---Petitioners

Versus

SHABBIR ANJUM MEHDI and 5 others---Respondents

Writ Petition No.3805 of 2021, decided on 5th April, 2022.

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

----S.52---Lis pendens, doctrine of---Scope---Provision of S.52 of Transfer of Property Act, 1882, does not declare pendente lite transfer by a party to suit as void or illegal but only makes pendente lite purchaser bound by decision of pending litigation---Effect of applicability of doctrine of lis pendens is that it does not annul conveyance but only renders it subservient to rights of parties to litigation.

Rashid Ahmad v. Mst. Jiwan and 5 others 1997 SCMR 171 and Surraya Begum v. Subhan Begum 1992 SCMR 562 rel.

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

----S.52---Civil Procedure Code (V of 1908), O. I, R.10---Lis pendens doctrine of---Applicability---Necessary party, impleading of---Principle---No absolute rule that transferee pendente lite without leave of Court should in all cases be allowed to join and contest pending suits---Pendente lite purchaser has no automatic right to be impleaded and the same is discretion of Court based on facts and circumstances of case---Object of O.I, R.10, C.P.C. is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited---Power to strike out or add parties can be exercised by Court at any stage of proceedings---Under O.I, R.10, C.P.C. a person may be added as a party to a suit when, without his presence, questions in suit cannot be completely decided---For deciding application under O.I, O.10 C.P.C., no elaborate inquiry is required---Purchaser pendente lite should ordinarily be made party in pending proceedings to enable him to protect his interest---Where Trial Court sees an attempt on the part of applicant to complicate and delay pending suits, it ought not to show equity in his favour---Where pendente lite purchaser is permitted to be impleaded as party to suit, he is not entitled to defend the suit independently from the party through whom he claims ownership rights---Transferee pendente lite has to be bound by result of suit or proceeding, whether or not he had notice of suit or proceeding---Judgment delivered and findings recorded against pendente lite seller would be binding on pendente lite purchaser in the same manner and to the same extent as it was binding on pendente lite seller of suit property.

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

----Ss. 42 & 54---Transfer of Property Act (IV of 1882), S. 52---Civil Procedure Code (V of 1908), O.I, R.10---Constitution of Pakistan, Art.199---Constitutional petition---Lis pendens doctrine of---Applicability---Necessary party, impleading of---Petitioners claimed to be lawful owners of suit property and sought to be impleaded in suit filed by respondents / plaintiffs---Trial Court on the basis of principle of lis pendens declined to implead petitioners in suit---Validity---Doctrine of lis pendens was to apply to a pendente lite sale where predecessor-in-interest of transferee was a party to litigation---Petitioners did not purchase plots in question from any respondents / defendants in suit but from a third party---Aa petitioners did not purchase plots from any of the parties in the suit, the sale transaction between third party and petitioners was not hit by doctrine of lis pendens---High Court set aside order in question and remanded the matter to Trial Court for decision afresh on application of petitioners under O.I, R.10, C.P.C.---Constitutional petition was allowed, in circumstances.

Muhammad Sabir Khan v. Rahim Bakhsh PLD 2002 SC 303; Saleem-ud-Din v. Municipal Committee, Tando Allahyar 2000 SCMR 460; Solomon v. Solomon & Co. Ltd. 1897 AC 22; Haji Khuda Bux Nizamani v. Election Tribunal 2003 MLD 607; Eastern Federal Union Insurance Company Limited v. State Life Insurance Corporation of Pakistan 1987 CLC 1408; Rai Bahadur Mohsin Singh Oberoi v. Rai Bahadur Jodha Mal Kuthalia PLD 1961 SC 6; E.B.M. Company Ltd. v. Dominon Bank AIR 1937 PC 279 and Thomson Press (India) Ltd. v. Nanak Builders and Investors P. Ltd. AIR 2013 SC 2389 ref.

Muhammad Ashraf Butt v. Muhammad Asif Bhatti PLD 2011 SC 905; Simla Banking Industrial Co. Ltd. v. Firm Luddar Mal AIR 1959 Punjab 490; Amit Kumar Shaw v. Farida Khatoon 2005 (11) SCC 403; West Virginia Pulp and Paper Co. v. Cooper (106 S.E. 55, 60, 87 W.Va. 781; Kala Chand v. Jagannath AIR 1927 PC 108; Fazli Hakeem v. Secretary, State of Frontier Regions Division, Islamabad 2015 SCMR 795 rel.

Taimoor Aslam Khan for Petitioners.

Ali Nawaz Kharal for Respondents Nos.1 and 2.

Mudassar Hussain Malik for Respondent No.4.

Wasim Abid for Respondent No.5.

2022 M L D 1490

[Islamabad]

Before Tariq Mehmood Jahangiri, J

SAIM SADIQ and another---Appellants

Versus

MUHAMMAD ASIF---Respondent

F.A.O. No.76 of 2018, decided on 18th November, 2021.

Civil Procedure Code (V of 1908)---

----Ss.21, 47 & O.IX, R.13---Malicious prosecution---Suit for recovery of Rs. 1,10,00,000/- as damages was filed in High Court (then having exclusive pecuniary jurisdiction) by respondents against the appellants---Appellants/judgment debtors filed written statement---Case was transferred from High Court to the Civil Court due to enhancement of pecuniary jurisdiction of civil Courts through amendment---Suit was decreed ex-parte to the extent of 42,00,000/---Respondents filed execution petition---Appellant filed application for setting aside ex-parte judgment/decree which after passing through two rounds of litigation was dismissed by Supreme Court---Thereafter, appellants filed objection petition which was dismissed by Executing Court---Appellants contended that Executing Court of West Division had no territorial jurisdiction as the Civil Court East Division was competent to try the matter keeping in view the police station in which criminal case was registered---Validity---Appellants filed written statement and issues were framed---After framing of issues, appellants did not join the proceedings of the suit, hence the ex-parte decree was passed to the extent of recovery of Rs.42,00,000/---After exhausting all the remedies upto the Supreme Court, appellants filed objection petition on ground of territorial jurisdiction---Appellants had not taken the objection regarding territorial jurisdiction at initial stage, issues were framed in their presence, they neither objected nor filed any petition for framing the issues regarding territorial jurisdiction---After exhausting all the remedies upto the Supreme Court, filing of objection petition at the stage of execution after about 4 years of passing of the judgment/decree by taking absolutely new plea/objection, was not warranted under the law---During the pendency of execution proceedings, the appellants had paid part payment of Rs.9,50,000/- to the decree holder which clearly indicated that appellants had accepted the decree and also made some compliance in the execution proceedings---Appeal was dismissed accordingly.

Faqir Muhammad v. Pakistan through Secretary, Ministry of Interior and Kashmir Affairs Division, Islamabad 2000 SCMR 1312 rel.

Ch. Hafeez Ullah Yaqub and Muhammad Arslan for Appellants.

Raja Abid Hussain Janjua for Respondent.

2022 M L D 1514

[Islamabad]

Before Aamer Farooq, J

SAMSONS GROUP OF COMPANIES---Petitioner

Versus

PANTHERS DEVELOPERS and others---Respondents

Writ Petition No.4045 of 2021, decided on 31st March, 2022.

Arbitration Act (X of 1940)---

----Ss.20, 41 & Second Schedule, Sr. No.1---Civil Procedure Code (V of 1908), S.76 & O.XX1, R.26---Arbitration proceedings---Local Commission, appointment of---Scope---During arbitration proceedings before Trial Court, on application filed by defendant, Local Commission was appointed to inspect site of work---Validity---Application under S.41 of Arbitration Act, 1940, was filed before Trial Court, who pursuant to proceedings under arbitration agreement had jurisdiction to pass orders which were mentioned in Second Schedule to Arbitration Act, 1940---Orders under serial No.1 of Second Schedule to Arbitration Act, 1940, could be passed for detention, preservation and inspection of any property---Wording of O.XXI, R.26, C.P.C., could not be interpreted to the effect that Local Commission could only examine spot which was within territorial jurisdiction of the Court--- Provision of S.76, C.P.C. was not applicable as it pertained to issuance of Commission to another Court for examination of any person and not otherwise--- High Court declined to interfere in order passed by Trial Court as it did not suffer from any illegality or jurisdictional error---Constitutional petition was dismissed, in circumstances.

Messrs Commodities Trading International Corporation v. Trading Corporation of Pakistan Ltd. and another 1987 CLC 2063; Abdul Sattar v. Port Qasim and others 2003 CLC 132; Excel Techno Solutions FZE, UAE through Sole Proprietor and another v. Messrs Oil and Gas Development Company Limited through counsel and another 2019 CLC 416; Ovex Technologies (Private) Limited v. PCK PK (Private) Limited and others 2020 CLD 15; M/s AB Sukab v. M/s Ghee Corporation of Pakistan PLD 1993 Kar. 508; Iltaf Hussain v. Zafar Iqbal and others 2015 CLC 447 and Sarhad Development Authority through Chairman, Peshawar v. Land Acquisition Collector/Deputy Commission, Abbotabad and 19 others 1998 SCMR 730 rel.

Wasif Aleem for Petitioner.

Noman Amin Farooqi for Respondents.

2022 M L D 1651

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Messrs H.J. (PVT.) LTD. through Chief Executive Officer, Rawalpindi and another---Petitioners

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, WEST-ISLAMABAD and another---Respondents

Writ Petition No.29 of 2022, decided on 17th February, 2022.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R. 3---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of money---Leave to defend the suit, refusal of---Dishonouring of cheque---Return of money---Proof---In suit for recovery of money on the basis of dishonoured cheques petitioners /defendants were refused leave to appear and defend the suit by Trial Court---Plea raised by petitioners / defendants was that amount of cheques was already paid to respondent / plaintiff on different occasions--- Validity---Petitioners / defendants admitted issuance of cheques and dishonouring from bank---Defence that amount had been paid in different installments to respondent / plaintiff was imaginary and illusionary as petitioners / defendants did not mention any time / date / mode of payment etc.---High Court in exercise of Constitutional jurisdiction declined to interfere in order passed by Trial Court as the same was neither without jurisdiction, nor mala fide, void or coram non judice--- Constitutional petition was dismissed, in circumstances.

Khushi Muhammad v. Muzammal Khatoon and 10 others 2014 CLD 92; Rasheed Ahmed v. Muhammad Asim and another 2019 CLC Note 68; Rao Khalid Anjum v. Shamas-Ur-Rehman 2017 YLR Note 69; Bashir Ahmed v. Messrs Skyline Lahore (Pvt.) Company through Chief Executive 2012 CLD 1627; Tahir Hassan Choudhery v. Shahid Ahmed Khan 2006 CLC 640; Raja Saeed Ahmad Khan v. Sabir Hussain 2000 CLC 199; Qayyum Khan v. Muhammad Yamin 2013 CLC 1650 and Asif Nadeem v. Messrs Bexshim Corporation 2001 CLC 653 ref.

Haji Ali Khan & Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 362; Syed Saghir Ahmad Naqvi v. Province of Sindh 1996 SCMR 1165 and Ms. Afshan Ahmed v. Habib Bank Limited 2002 CLD 137 rel.

Raja Inaam Ameen Minhas and Faiz Muhammad Mahar for Petitioners.

Junaid Jahangir for Respondent No.2.

2022 M L D 1869

[Islamabad]

Before Aamer Farooq, J

ADMINISTRATOR ISLAMABAD CLUB---Appellant

Versus

CAPITAL DEVELOPMENT AUTHORITY and others---Respondents

F.A.O. No.142 of 2021, decided on 23rd February, 2022.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Temporary injunction, grant of---Monetary matter---No question of irreparable loss---Scope---Plaintiff challenged the demand of property tax by the Capital Development Authority (CDA) through a suit for declaration and temporary injunction---Trial Court dismissed the application for interim relief on the ground that since the demand notice was a monetary matter, hence, there was no question of irreparable loss---Contention of appellant, inter alia, was that act of recovery of property tax by the CDA was without jurisdiction inasmuch as under the Islamabad Capital Territory Local Government Act, 2015, Municipal Corporation had the sole jurisdiction to recover the property tax---Validity---After enactment of the Islamabad Capital Territory Local Government Act, 2015, the levy and collection of property tax was the domain of Municipal Corporation, Islamabad Capital Territory---Balance of convenience and irreparable loss had merged in the prima facie case tilting the balance in favour of the plaintiff entitling it to the grant of interim relief---Appeal as well as the application filed by plaintiff for interim relief was allowed.

Jamil Ahmad v Provincial Government of West Pakistan and 4 others PLD 1982 Lah. 49; Karachi Electric Supply Corporation v. Federal Board of Revenue and others 2013 PTD 851; Molasses Export Co. Ltd. v. Consolidated Sugar Mills Ltd. 1990 CLC 609; Shifa Laboratories (Pvt.) Ltd. through Chief Executive v. Lahore Development Authority, through Director General LDA Plaza and 3 others 2004 MLD 1377 and Retex Global (Pvt.) Ltd. through Chief Executive v. Export Processing Zones Authority through Chairman and another 2009 CLC 676 ref.

Wasim Abid for Appellant.

Syed Muhammad Ali Bukhari and Barrister Adeel Aftab for Respondents.

2022 M L D 1914

[Islamabad]

Before Miangul Hassan Aurangzeb, J

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through GM (Regulatory Affairs)---Appellant

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY through Chairman---Respondent

F.A.O. No.127 of 2021, decided on 26th August, 2022.

(a) Pakistan Telecommunication Re-organization Act (XVII of 1996)---

----Ss.23 & 7---Issue of enforcement order and penalties---Appeal and revision---Scope---Appellant assailed order passed by the PTA (Pakistan Telecommunication Authority) whereby a fine of Rs.1 million was imposed on it for providing incorrect data---Contention of appellant, inter alia, was that it had not contravened any of the terms and conditions of its license, the Pakistan Telecommunication (Re-organization) Act, 1996 or rules made thereunder---Validity---Held, it was ludicrous to assert that PTA was bereft of the power to impose a fine on a licensee for not providing authentic, correct and complete information to PTA unless the licensee had been given an opportunity to remedy the contravention---Such an interpretation of S.23(3) of Pakistan Telecommunication (Re-organization) Act, 1996, would be an open license to the licensees to provide unauthentic, incorrect and incomplete information to PTA with impunity, and hope for such contravention to never be detected---Such an interpretation would also render S. 23(3)(b) redundant which empowered PTA to impose a fine on a licensee where a licensee was unable to satisfy PTA as to the contravention of rules or a term or condition of a license---Appeal was dismissed.

(b) Pakistan Telecommunication Authority (Functions and Powers) Regulations, 2006---

----Regln. 47---Pakistan Telecommunication Re-organization Act (XVII of 1996), S.23---Reporting requirements---Scope---Regulation 47(1) of the Pakistan Telecommunication Authority (Functions and Powers) Regulations, 2006 empowers PTA to require a licensee to provide any information for the purposes of carrying out its functions, and a licensee is under an obligation to provide the information sought by PTA---Regulation 47(3) provides that non-compliance with Regln. 47 shall be treated as a violation of the license condition and action under S.23 of the Pakistan Telecommunication Re-organization Act, 1996, may be initiated.

(c) Pakistan Telecommunication Authority (Functions and Powers) Regulations, 2006---

----Regln. 48---Licensee to co-operate with Authority---Scope---Regulation 48 provides that the licensee shall co-operate with the Authority in organizing public hearings, and in any investigation, adjudication, study, consultation or enquiry on any matter as the Authority may like to conduct, and shall comply with any directive of the Authority to furnish any relevant record, data or information under its control, and to produce any of their officer(s) and employee(s) before the Authority or its officer(s), as the Authority may summon for evidence or consultation.

(d) Pakistan Telecommunication Re-organization Act (XVII of 1996)---

----S.23---Issue of enforcement orders and penalties---Scope---Section 23(1) of the Pakistan Telecommunication (Re-organization) Act, 1996 provides that where a licensee contravenes any provision of the Act or rules made thereunder or any term or condition of the license, PTA or any of its officer(s) not below the rank of Director may, by a written notice, require the licensee to show cause within thirty days as to why enforcement order may not be issued.

(e) Pakistan Telecommunication Re-organization Act (XVII of 1996)---

----S.23---Issue of enforcement orders and penalties---Scope---Section 23(3) of the Pakistan Telecommunication (Re-organization) Act, 1996, provides that if a licensee fails to (a) respond to the show-cause notice, or (b) satisfy the Authority about the alleged contravention, or (c) remedy the contravention within the time allowed by the Authority, the Authority may, by an order in writing and giving reasons, inter alia levy a fine which may extend to Rs. 350 million---Sub-clauses (a), (b) and (c) of S. 23(3) have to be read disjunctively.

(f) Appeal---

----Appellant in filing annexes to the appeal cannot pick and choose among documents which formed part of the original proceedings---Appellant is under an obligation to file along with its appeal all the documents that are necessary for the just adjudication of the appeal---Failure to do so must meet with a penalty.

Malik Omair Saleem and Abdullah Alim Qureshi along with Khizer Ali, Manager (Legal), P.T.C.L. for Appellant.

Faisal Bin Khurshid along with Ch. Adil Javed, Assistant Director (Lit) and Shahmeer Shahid, MTO (Law), P.T.A. for Respondent.

2022 M L D 1961

[Islamabad]

Before Sardar Ejaz Ishaq Khan, J

M/s. TELEMATICS MASTER (PVT.) LTD through Chief Operating Officer ---Petitioner

Versus

M/s. PAK WELCOM TRADER (PVT.) LTD. through Chief Executive---Respondent

Writ Petition No.3903 of 2020, decided on 14th March, 2022.

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

----Ss.11, 12 (2) & O.IX, R.13---Election of remedies, doctrine of---Res judicata, principle of---Applicability--- Judgment and decree, setting aside of--- Petitioner / defendant was aggrieved of ex-parte judgment and decree passed against it---Petitioner/defendant earlier sought remedy under S.12(2), C.P.C. then filed application under O.IX, R.13, C.P.C. to get ex-parte judgment and decree set aside---Validity---Application under O.IX, R.13, C.P.C. was to be made within thirty days of the date of knowledge of the decree---Petitioner / defendant filed application under O.IX, R.13, C.P.C. two years after the date of knowledge, if date of application under S.12(2), C.P.C. was to be taken as the date of knowledge---Trial Court rightly held that petitioner / defendant elected its remedy under S.12(2), C.P.C. and it could not be allowed to turn around much later and pursue an alternate remedy after it was unsuccessful with the first one--- Doctrine of election of remedies precluded petitioner / defendant to seek another remedy after availing without success one amongst several alternative remedies as the issue had become res judicata---High Court declined to interfere in the order passed by Trial Court---Constitutional petition was dismissed, in circumstances.

2009 SCMR 598; 1993 SCMR 662; PLD 2006 SC 773; 2011 CLD 1569; 2004 SCMR 843; 2018 CLC 40; 2019 CLC 2016; 2016 YLR 1191 and PLD 2010 Kar. 400 ref.

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

----S.12(2)---Judgment, setting aside of---Fraud and misrepresentation---Service of process---Proof---Allegation of fraud and misrepresentation has to be pleaded with sufficient particulars---Party applying to set aside an ex parte order for fraud and misrepresentation in service of summons would be expected to inspect Trial Court's record of service and only then plead fraud in its application with sufficient particulars---Court may but is not necessarily required to frame an issue on the question of actual service raised in an application under S.12(2), C.P.C.

Ch. Muhammad Kashif Gujjar for Petitioner.

2022 M L D 2003

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD AFZAL KHAN JADOON---Petitioner

Versus

WAHID MEHMOOD---Respondent

Civil Revision No.29 of 2020, decided on 17th February, 2022.

(a) Limitation Act (IX of 1908)

----S.3---Appeal barred by limitation----Delay in filing appeal not condoned ---Whether Appellate Court could decide a time barred appeal---Held, appeal filed by respondent was barred by limitation---Period of limitation prescribed for filing of appeal before District Court from judgment and decree of Civil Court was 30 days---Appellate Court held that no ground for condonation of delay was made out and no exception could be taken to that conclusion---Appellate Court had no jurisdiction to proceed further in the matter---Question of limitation was not a mere technicality and effect of expiry of limitation was to extinguish the remedy---Appellate Court had no jurisdiction to render findings on the merits of case----No basis or justification was available for respondent to assail judgment of appellate Court as appeal was incompetent and determination of appellate Court on merits of case was without jurisdiction----Civil revision was allowed.

Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 and Lyari Development Authority through Law Officer v. Muhammad Maroof Sultan and 3 others 2019 YLR 1965 ref.

(b) Civil Procedure Code (V of 1908)

----Ss.96 & 115----Suo motu jurisdiction -----Appellate Court under S.96 of the C.P.C had no jurisdiction to proceed suo motu in a matter unlike the jurisdiction conferred under S.115, C.P.C---Even if civil revision is incompetent for any reason the revisional Court can correct the illegality suo motu.

Ahmed Shah and 3 others v. Mst. Munawar Begum and 3 others 1986 CLC 1079 and Abid Hussain v. Mst. Afsar Jehan Begum and another PLD 1972 Kar. 54 rel.

Asif Mehmood Haider and Arfia Saadat for Petitioner in person.

2022 M L D 2037

[Islamabad]

Before Babar Sattar and Arbab Muhammad Tahir, JJ

Malik TARIQ AYUB and another---Petitioners

Versus

Raja ARSHAD MEHMOOD and another---Respondents

Criminal Miscellaneous No.326-BC of 2019, decided on 19th April, 2022.

(a) Interpretation of statutes---

----Special and general law---Scope---Provisions of special law trump provisions of general law and the provisions of a general law cannot be relied upon when subject-matter is specifically addressed by a special law.

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

----Ss. 7& 21-D---Criminal Procedure Code (V of 1898), Ss.435, 439, 497 third proviso & 561-A---Constitution of Pakistan, Arts. 199 & 203---Act of terrorism---Bail, cancellation of---Plea of statutory delay---Applicability---Supervisory role of High Court---Conversion of proceedings---Complainant sought cancellation of bail granted to accused by Anti-Terrorism Court on the plea of statutory delay in conclusion of trial---Validity---Ground of statutory delay in conclusion of trial was not available to accused charged with act of terrorism punishable with death or imprisonment for life---Provisions of Cr.P.C. had no application for purposes of consideration of bail of accused triable by Anti-Terrorism Court---For such purpose sole considerations were those provided under S.21-D of Anti-Terrorism Act, 1997---Where court or tribunal had requisite jurisdiction under any provision of law, merely because an application was filed by referring to an incorrect statutory provision was inconsequential and did not wrestle away jurisdiction of Court or legality of proceedings conducted by it---High Court was vested with jurisdiction to supervise Anti-Terrorism Court and exercise authority under Arts. 199 & 203 of the Constitution as well as under Ss.435 & 439 and 561-A, Cr.P.C.---Merely because a party filed an application or petition referred to an incorrect provision under which jurisdiction was not vested in High Court, did not place any cloud over legality of proceedings undertaken by the High Court---High Court converted Constitutional petition into application under Ss.435 & 439 of Cr.P.C.---High Court in exercise of revisional jurisdiction set aside order granting bail to accused by Anti-Terrorism Court---Revision was allowed accordingly.

Muhammad Hashim v. The State 2001 MLD921; Abdul Salam v. The State 2015 PCr.LJ 808; Faiz Muhammad v. The State 2006 SCMR 93; Nazir Ahmad v. Latif Hussain PLD 1974 Lah. 476; Asghar Ali v. Abdul Shakoor PLD 1999 Lah. 516; Muhammad Zubair v. The State 1996 MLD 1451; Muhammad Jawad Hamid v. Mian Muhammad Nawaz Sharif and others PLD 2018 Lah. 836; Syed Hussain Abbass v. The State (Criminal Appeals No.257 of 2000 and others); Dur Muhammad v. Bashir 1983 PCr.LJ 2053; Haji Behram Khan v. Akhtar Muhammad 1993 PCr.LJ 71; Khalid Mahmood v. Abdul Qadir Shah 1994 PCr.LJ 1784 and Muhammad Sharif v. The State 2001 YLR 900 ref.

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

----S.7---Criminal Procedure Code (V of 1898), S.439---Revisional jurisdiction of High Court---Scope---High Court is vested with authority to exercise revisional jurisdiction in relation to orders and proceedings of Anti-Terrorism Court.

Mushtaq Ahmed v. The State PLD 1966 SC 126 and Dr. Waqar Hussain v. The State 2000 SCMR 735 rel.

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

----Ss.7 & 21-D---Criminal Procedure Code (V of 1898), Ss. 435, 439, 497(5) & 561-A---Act of terrorism---Bail, grant of---High Court can consider correctness, legality and propriety of bail granting order in exercise of authority under Ss.435 & 439, Cr.P.C. read together with S.561-A, Cr.P.C.---As bail to accused triable by Anti-Terrorism Court is granted under S.21-D of Anti-Terrorism Act, 1997, provision of S.497(5),Cr.P.C. has no application for purposes of cancellation of bail granted to accused by Anti-terrorism Court.

(e) Constitution of Pakistan---

----Art.199---High Court, suo motu powers---Scope---High Court has no suo motu jurisdiction under Art. 199 of the Constitution---In a case where there is an aggrieved party who brings a matter to High Court that satisfies all necessary requirements of Art. 199 of the Constitution, merely because such application is not in proper form in compliance with all requirements prescribed under High Court (Lahore) Rules and Orders does not make cognizance of such application exercise of suo motu jurisdiction by High Court.

(f) Administration of justice---

----Conversion of proceedings---Power---High Court has ample authority to convert a revision into a Constitutional petition and vice versa in a fit case.

Muhammad Ayub v. Obaidullah 1999 SCMR 394 rel.

Faisal Siddiqi for Petitioners.

Azam Nazir Tarar and Abdul Wahid Qureshi for Respondent No.1.

2022 M L D 2071

[Islamabad]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

GULL MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.28 of 2022, decided on 28th June, 2022.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Sentence, modification of---Accused was alleged to have been found in possession of 1220 grams of charas and 110 grams Crystal methamphetamine (ICE)---Prosecution case rested upon the statements of Investigating Officer and recovery witness---Both the witnesses were consistent on material particulars i.e. the venue, date and time of the raid, apprehension of the accused with contraband i.e. charas 1220 grams and ICE 110 grams, respectively, separation of 10-grams from the charas and 1-gram from ICE besides preparation of two sealed parcels and the other two parcels wherein remaining contraband were sealed---Safe custody and transmission of the sample in sealed parcels to the Office of Forensic Science Agency was established through the statements of Police Official and Moharrir Malkhana---Report of Forensic Science Agency confirmed that the sealed parcels said to contain suspected 01 gram of ICE and 10 grams of charas contained ICE and charas---Prosecution through consistent and unshaken statements of Investigating Officer and recovery witness had successfully proved the recovery of contraband i.e. 1220 grams charas and 110 grams ICE from the possession of the accused beyond any shadow of doubt---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---However, the sentence was reduced from imprisonment for five years and ten months to imprisonment for four years and six months---Appeal was dismissed with modification in sentence.

Liaqat Ali and Shad Muhammad v. The State 2022 SCMR 1097 and Faisal Shahzad v. The State 2022 SCMR 905 rel.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Sentence, quantum of---Accused was alleged to have been found in possession of 1220 grams of charas and 110 grams of ICE---Accused was convicted for the offence under S. 9(c) of the Act of 1997 and sentenced to imprisonment for four years and six months' R.I with fine of Rs. 20,000/- and in default to further undergo S.I for nine months for having charas and on account of having ICE, to one year and four months' R.I with fine of Rs. 11,000/- or in default to further undergo four months' S.I---Section 9 of the Act of 1997 stipulated punishments for contravention of Ss. 6, 7 and 8 of the Act---Section 8 prohibited the trafficking or financing the trafficking of narcotic drugs while S.7 was with respect to import and export of narcotic drugs---Section 6 was in respect of prohibition of possession of narcotic drugs---In all the three sections, the nature of narcotic drugs had been mentioned as narcotic drugs, psychotropic substance and controlled substance---For contravention of having possession of any type of the narcotic drugs, punishment would be cumulative as there was no distinction of kind of narcotic drugs but for all kinds punishment was to be inflicted as provided in S. 9 of the Act---Consecutive punishments awarded to the accused were not legally sustainable as he had to be punished for recovery of 1330-grams of narcotic drugs in total and not separately for 1220 grams of charas and ICE 110 grams respectively as the Act did not provide separate sentence for separate kind of narcotic drugs---While maintaining conviction under S.9(c) of the Act, the accused was sentenced to four years and six months R.I with fine of Rs.20,000/----Appeal was dismissed with modification in sentence.

Ghulam Murtaza PLD 2009 Lah. 362 ref.

Shan Zeb Khan for Appellant.

Muhammad Saeed Khan Saddozai, State Counsel with Ali Muhammad S.I. Police Station Noon, Islamabad for the State.

2022 M L D 18

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

SHAMROZE KHAN---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU, KARACHI GOVERNMENT OF PAKISTAN through Deputy Director (Coord.) and 4 others---Respondents

Constitutional Petition No.D-5661 of 2021, decided on 24th September, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Territorial jurisdiction---Factual controversy---Petitioner was aggrieved of blocking of original record of Dumper purchased by him from respondent---Plea raised by petitioner was that loan agreement between respondent and bank was not binding on him---Validity---Registration book regarding subject vehicle was issued by Motor Registration Authority, Balochistan, and cause of action if any had arisen there, therefore, High Court (Sindh) lacked territorial jurisdiction---Plea of petitioner regarding loan agreement was not justiciable as High Court in exercise of Constitutional jurisdiction under Art.199 of the Constitution could not look into such factual controversy requiring recording of evidence---Subject vehicle was also subject matter of an investigation conducted by NAB against ex-Chief Manager of the Bank---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

2022 M L D 51

[Sindh]

Before Ahmed Ali M. Sheikh, CJ and Yousuf Ali Sayeed, J

Dr. ARIF DAWOOD HAREKAR---Petitioner

Versus

Messrs SEA BREEZE PRIVATE LIMITED through CEO/Secretary/Authorized Officer and 2 others---Respondents

Constitution Petition No.D-5507 of 2020, decided on 21st September, 2021.

Civil Procedure Code (V of 1908)---

----Ss.21, 47 & O.XXI, R.29---Objections to jurisdiction---Questions to be determined by the Court executing decree---Stay of execution proceedings pending suit between decree-holder and judgment-debtor---Scope---Petitioner assailed the dismissal of his applications whereby he had sought to explain his indolence and had agitated that the judgment and decree had been wrongly passed, hence, the execution proceedings be stopped pending decision of the point raised in the application---Validity---Petitioner in his written statement had half-heartedly contested the proceedings---Against the impugned judgment and decree, the petitioner had preferred not to file any appeal rather had filed an application under S.12(2), C.P.C., which was dismissed for non-prosecution and no application for its resurrection was filed either---Sole point agitated in the matter before High Court was that the trial court lacked territorial jurisdiction, hence, the judgment and decree was nothing but nullity---Since the petitioner had himself submitted to the jurisdiction of the trial Court and had not raised any objection at the relevant point of time, no objection as to the place of suing could be raised either at the appellate or revisional stage---Bare perusal of the S.21 of C.P.C. reflected that if the objection as to the territorial jurisdiction was not raised before the Court of first instance the same could not be taken before the superior forums---Constitutional petition was dismissed.

Muhammad Ali v. Ghulam Sarwar 1989 SCMR 640 and Allah Ditta v. Ahmed Ali Shah 2003 SCMR 1202 distinguished.

Regional Development Finance Corporation v. Gul Hassan 2009 SCMR 706 rel.

2022 M L D 73

[Sindh]

Before Muhammad Shafi Siddiqui and Agha Faisal, JJ

MST. AMEER JAHAN alias BISMA NOREEN---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.P. D-948 of 2021, decided on 5th October, 2021.

Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Frivolous litigation---Scope---Petition seeking direction against use of 5G Technology and Covid-19 Vaccines---High Court observed that petitioner only rested her arguments on surmises and conjectures and contradictory documents and such Constitutional petition was dismissed with cost imposed on petitioner, to be deposited in the High Court Clinic.

Petitioner in person.

Kafeel Ahmed Abbasi, Deputy Attorney General along with Hussain Bohra, Assistant Attorney General for Respondent.

2022 M L D 95

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Khadim Hussain Tunio, JJ

KHADIM HUSSAIN---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.D-113 of 2018, decided on 6th February, 2020.

Penal Code (XLV of 1860)---

----Ss, 302(b), 324, 337-A(i), 337-F(i), 147, 148 & 149---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i- khafifah, ghayr-jaifah-mudihah, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Examination of accused by the court---Scope---Accused was charged that he and co-accused persons while armed with deadly weapons assaulted on complainant, due to which father of complainant died whereas one other person sustained injuries---Record showed that the procedure adopted by the trial court was reflective of miscarriage of justice---Offence was punishable for death or imprisonment for life and accused had been awarded imprisonment for life without providing him opportunity with regard to material questions to be put to him in his statement under S.342, Cr.P.C.---Record transpired that the trial court had not put incriminating pieces of evidence against accused which were brought on record by the prosecution witnesses---Prosecution case was that hatchet used by accused in the crime was also recovered from him---Said blood stained hatchet was sent to Chemical Examiner, positive report had been tendered in evidence but no question was put to accused in that regard---Serious prejudice had been caused to the accused as the accused was not provided fair opportunity to explain his position regarding incriminating pieces of evidence brought on record against him---Section 364(2), Cr.P.C, was violated while writing the certificate at the bottom of statement of accused being not in handwriting but typed one---Trial Court did not perform its function diligently and had taken the matter lightly and in a casual manner and awarded life imprisonment to the accused, thus, accused was prejudiced in his trial and defence, therefore, a miscarriage of justice had occurred in the case---Procedure adopted by Trial Court was an illegal procedure, which could not be cured under S.537, Cr.P.C.---Such procedure adopted by the Court vitiated the trial---Hence, Impugned judgment was liable to be set aside---Case was remanded to the Trial Court for recording the statement of accused afresh after putting all incriminating pieces of evidence to the accused for his explanation---Appeal was disposed of accordingly.

Shafique Ahmed alias Shahjee v. The State PLD 2006 Kar. 377 ref.

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

Abdul Hameed Bajwa for Appellant.

Jehangir Khan Pathan for the Complainant.

Ms. Rameshan Oad, A.P.G. for the State.

2022 M L D 150

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Adnan-ul-Karim Memon, JJ

AYAZ alias COTTON SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-33 of 2020, decided on 3rd September, 2020.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Search to be made in presence of witnesses---Delay in sending sample to Chemical Examiner---Safe custody---Malkhana entry---Scope---Accused was convicted for having been found in possession of 1050 grams of charas---Place of receiving of spy information and that of incident were thickly populated areas, therefore, availability of independent persons could not be ruled out but the police party had not associated any independent person from such places to witness the event---Unexplained delay of two days in between the recovery of charas and receiving the same in the office of chemical analyzer for testing---No evidence was available on record to show that the charas was kept in safe custody from the time of its recovery until it was sent to and received in the office of Chemical Examiner---Mere production of entry of malkhana was not sufficient to testify as to safe custody and safe transit of the narcotic to the Chemical Examiner---Prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Ikramullah others v. The State 2015 SCMR 1002 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---Benefit of doubt occurring in prosecution case must go to the accused by way of right as opposed to concession.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Imtiaz Ali Abbasi for Appellant.

Ms. Rameshan Oad, Asst., Prosecutor General, Sindh for the State.

2022 M L D 174

[Sindh (Larkana Bench)]

Before Muhammad Junaid Ghaffar, J

PROVINCE OF SINDH, through Secretary Revenue Department and 3 others---Applicants

Versus

THAKUR DAS and others---Respondents

Civil Revision Application No.S-15 of 2010, decided on 25th September, 2020.

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

----Ss.42 & 54---Suit for declaration and permanent injunction---Gift---Scope---Plaintiffs filed suit for declaration and injunction against their father and provincial government contending therein that they were owners of suit land by virtue of gift made in their favour by their father---Plaintiffs' father admitted the claim of plaintiffs in respect of purported gift made by him, whereas the Mukhtiarkar denied the claim of plaintiffs by arguing that it was a collusive suit to avoid the operation of Land Reforms Regulations, 1972---Trial Court dismissed the suit whereas Appellate Court decreed the suit---Validity---Appellate Court had placed reliance on an order of Land Commissioner dated: 20-09-1972 for coming to the conclusion that a valid gift was made as claimed---Order of the Land Commissioner was outcome of some proceedings initiated against the father of plaintiffs, who according to the case before the Land Commissioner had failed to disclose various land(s) (Suit Land included) in his declaration as required to be filed by him after promulgation of the Land Reforms Regulations, 1972---Father of plaintiffs was confronted, to which his stance was that he had gifted those properties to his sons and grandson---Such was in that context that the said order of Land Commissioner was passed---Land Commissioner had went on to hold that on verification of the revenue record, there was no record of such gift statement in the Book of Statement---Judgment and decree passed by Appellate Court was set aside and that of Trial Court was restored---Revision application was allowed, in circumstances.

Abdullah v. Abdul Aziz 1987 SCMR 1403 and Ghulam Zainib v. Said Rasool 2004 CLC 33 ref.

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

----Ss.42 & 54---Sindh Land Revenue Act (XVII of 1967), S.42---Limitation Act (IX of 1908), Art. 120---Suit for declaration and permanent injunction---Gift mutation, non-attestation of---Limitation---Scope---Plaintiffs filed suit for declaration and injunction against their father and provincial government contending therein that they were owners of suit land by virtue of gift made in their favour by their father---Plaintiffs' father admitted the claim of plaintiffs in respect of purported gift made by him, whereas the Mukhtiarkar denied the claim of plaintiffs by arguing that it was a collusive suit to avoid the operation of Land Reforms Regulations, 1972---Trial Court dismissed the suit whereas Appellate Court decreed the same---Validity---High Court observed that the plaintiffs' own case according to the pleadings was that the gift was made by their father on 20-02-1967 and that they had approached the revenue authorities for mutation of the khata in their names, but it was declined---Plaintiffs had not been able to prove in the evidence that as to when such request of recording the effect of the gift was made by them and refused by the concerned revenue authorities---If the case of plaintiffs' father was to the effect that it was refused, then he in his lifetime ought to have taken recourse to the legal remedy either by way of an appeal under S.161 of the Sindh Land Revenue Act, 1967, or by way of a civil suit under S.9 of C.P.C.---Plaintiffs had filed their suit on 18-07-1974 and counting from 19-05-1967 i.e. after 03 months from the date of the purported gift, the suit was beyond limitation of 06 years as provided under Art.120 of Limitation Act, 1908---Suit of the plaintiffs was hopelessly time barred and such limitation was never condoned nor it could have been, and therefore, the Appellate Court had seriously erred in deciding the issue in favour of the plaintiffs by setting aside the judgment of the Trial Court---Revision application was allowed, in circumstances.

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

----Ss.3 & 9---Dismissal of suits, etc. instituted, after period of limitation---Continuous running time---Scope---Provisions of Ss.3 & 9 of Limitation Act, 1908, are mandatory in nature and if a suit is instituted after the period of limitation, it shall subject to the provisions of Ss.4 to 25 of Limitation Act, 1908, be dismissed notwithstanding that limitation is not set up as a defence---Section 9 of Limitation Act, 1908, is founded on the general principle that once limitation has commenced to run it will continue to do so unless it is stopped by virtue of any express statutory provisions.

Siraj Din and others v. Khurshid Begum and others 2007 SCMR 1792 ref.

Abdul Hamid Bhurgri, Additional Advocate General for Applicants.

Nemo. for Respondents.

2022 M L D 204

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

MUHAMMAD ZAKIR and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Application No.91 of 2020, decided on 10th February, 2021.

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

----Ss.4 & 5---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S.7---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that pistols loaded with magazine containing bullets, Kalashnikovs loaded with magazine containing bullets and hand grenades were recovered from the possession of the accused---In the present case, at about 4.00 am, complainant received spy information that two persons were sitting on the stairs of Tarbooz ground in suspicious condition, police went there and arrested the accused and allegedly recovered arms and ammunition---Such fact looked unrealistic that complainant received information at 4.00 a.m. within a minute, the police reached at the place of incident, arrested accused, effected recovery of the arms and explosive substance, called Bomb Disposal Unit Team, thereafter, at the same time prepared the memo of arrest and recovery---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.

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

----Ss.4 & 5---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S.7---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Prosecution case was that pistols loaded with magazine containing bullets, Kalashnikovs loaded with magazine containing bullets and hand grenades were recovered from the possession of the accused---Perusal of the memo of arrest and recovery showed that complainant prepared the mashirnama of arrest and recovery at 4.00 a.m. after defusing the hand grenades and sealed both the arms and hand grenades---Incharge of Bomb Disposal Unit totally belied the same while deposing that at 4.05 a.m., operator informed him to reach at old Sabzi Mandi, Tarbooz ground, for defusing the explosive material---Incharge of Bomb Disposal Unit reached at the spot at 4.25 a.m. and at 4.30 a.m., he defused the alleged recovered hand grenades, whereas, the hand grenades according to Incharge of Bomb Disposal Unit, were sealed at police station---If Incharge of Bomb Disposal Unit deposed that he came at the place of incident at 4.25 a.m. and defused the alleged recovered hand grenades at 4.30 a.m. then how it was possible that all the arms and hand grenades were sealed and thereafter, Bomb Disposal Unit Team reached at the spot---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstance and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S.7---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Safe custody of the recovered weapons at police station and their transmission to the Forensic Science Laboratory---Scope---Prosecution case was that pistols loaded with magazine containing bullets, Kalashnikovs loaded with magazine containing bullets and hand grenades were recovered from the possession of the accused---Record showed that there was overwriting in the description of the hand grenades allegedly recovered from the possession of accused---Investigating Officer in his evidence had deposed that he received three sealed parcels, out of which he only sent two sealed parcels containing alleged recovered pistol and Kalashnikov to the Forensic Science Laboratory for examination and now there remained one sealed parcel---Two sealed LED savor boxes in sealed condition containing hand grenades were de-sealed in Court---One parcel as per evidence of the Investigating Officer, containing alleged recovered hand grenades, was handed over to him, then how two sealed parcels containing alleged recovered hand grenades were produced at trial---Allegedly, from the possession of co-accused, police recovered one Kalashnikov without number with 15 live bullets and one .30 bore pistol with five rounds, but in the Forensic Science Laboratory Report, it was reported that one 7.62 x 39 mm rifle with rubbed number was sent for examination, however, when the said weapon was shown to the mashir/Head Constable digits were found engraved whereas, in the mashirnama of arrest and recovery there was no mention of any digits---Memo of arrest and recovery, showed that said pistol was shown as without number, whereas, perusal of Forensic Science Laboratory showed that pistol with rubbed number was sent for examination---Even, in the evidence, the complainant and witness/Head Constable/mashir of recovery and arrest had admitted that sketch of pistol produced before Court did not match with the sketch of the pistol---Apart from said material contradictions and discrepancies, safe custody of the recovered weapons at police station and their transmission to the Forensic Science Laboratory had never been proved by the prosecution at trial---Such recoveries could not be safely relied upon---No sufficient evidence was available on record to conclude that the accused was habitual offender coupled with the fact that although FIRs referred to by the prosecution had been registered against him but it itself was not sufficient to prove the accused to be so, unless it was proved/established that he had been convicted in the said FIRs and the said conviction had been finally maintained by the Superior Courts---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.

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

(d) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating reasonable doubts in the mind of a man of ordinary prudence about guilt of the accused, its benefit would go to him.

Riaz Masih alias Mithu v. The State 1995 SCMR 1730 rel.

Hashmat Khalid and Tariq Mehmood for Appellants.

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

2022 M L D 263

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar and Arshad Hussain Khan, JJ

SINDH AGRICULTURE UNIVERSITY TANDO JAM through VICE CHANCELLOR and another---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary, Sindh Secretariat, Karachi

and 7 others---Respondents

Constitutional Petition No.D-1307 of 2020 and Constitutional Petition No.D-05 of 2021, decided on 7th July, 2021.

Land Acquisition Act (I of 1894)---

----S.6---Declaration that land is required for a public purpose---Scope---Petitioner assailed acquisition proceedings being conducted by the Provincial Government for construction of a road---Only dispute raised by the petitioner was that some other piece of land should be acquired in lieu of the subject land and as the same was being used for research and experimental purposes---Validity---Acquiring agency had the sole discretion and authority to see the suitability of land for purpose of acquisition---Land acquisition proceedings were not a direct transaction between a willing vendor and a willing vendee; it was the will, choice and selection of the government/acquiring agency with regard to a land which stood paramount---Land owner had no right whatsoever to hinder such will, choice and selection, except to demand reasonable compensation in lieu of the land---Mala fides with regard to the will, choice and selection of the land could not be attributed to the government/acquiring agency merely on the basis of allegations---Tappedar of the area had reported that no valuable plantation was found on the subject land which was in fact being used by the petitioner for cultivation of cotton, sugarcane and wheat for commercial gain---Such being a disputed question of fact, could not be looked into by the High Court---Constitutional petition was dismissed.

Masood Ahmed Wassan and 3 others v. Province of Sindh through Chief Secretary Sindh and 13 others 2020 YLR 2597; Muhammad Ashiq and another v. Water and Manpower Development Authority, Lahore through Chairman WAPDA House and another PLD 2008 SC 335 and Khalil ur Rehman through legal heirs and others v. Government of N.-W.F.P. through Secretary Education Department, Peshawar and 2 others PLD 2007 Pesh. 141 ref.

Muhammad Arshad S. Pathan for Petitioner (in Constitutional Petition No.D-1307 of 2020).

Allah Bachayo Soomro, Additional Advocate General Sindh for Respondents (in Constitutional Petition No.D-1307 of 2020).

Ali Ahmed Palh for Intervenors.

Imdad Ali R. Unar for Petitioner (in Constitutional Petition No.D-05 of 2021).

Muhammad Arshad S. Pathan for Respondent No.4 (in Constitutional Petition No.D-05 of 2021).

Allah Bachayo Soomro, Additional Advocate General Sindh for Respondents Nos.1, 2, 3, 5, 6 and 7 (in Constitutional Petition No.D-05 of 2021).

2022 M L D 286

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

NAZEER AHMED---Appellant

versus

ZIAULLAH and 2 others---Respondents

Second Appeal No.198 of 2020, decided on 21st October, 2021.

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

----S.100---Qanun-e-Shahadat (10 of 1984), Arts. 78, 79 & 117---Suit for declaration, etc.---Respondent/plaintiff alleged that Appellant/defendant had illegally occupied the suit property, damaged the construction and caused him suffer great hardship, mental agony, torture, medical expenses, and defamation---Appellant contended that respondent had purchased property from one brother of appellant's wife and had obtained lease/sale deed fraudulently for which appellant had already filed suit for cancellation of said sale deed; that appellant with family had been living in suit property; that appellant's wife obtained loan and mortgaged the suit property to him through written Iqrarnama---On third round of litigation, suit was concurrently decreed by Courts below---Second appeal on the grounds that Courts below failed to consider that respondent had produced fake/bogus sale deed; that in Search Certificate issued by Sub-Registrar the name of said lady was still existing---Validity---Second appeal required legal consideration and it did not lie on ground of an error on question of facts---Only legal error alleged by appellant was that respondent had not led evidence of the executant of the sale deed and its witnesses in order to prove his claim under Arts. 78 & 79 of Qanun-e-Shahadat, 1984---Appellant/defendant in written statement alleged firstly that respondent purchased suit property from the said lady and then stated that respondent obtained the same on lease/sale deed by way of fraud---Written statement was silent as to how the alleged fraud had been committed---No suggestions in cross-examination regarding such alleged fraud; signature of "A" on sale deed as forged one and his hand-writing---Unregistered Iqrarnama could not be treated as authentic document of ownership which could have been helpful for recovery of alleged borrowing of money---Respondent had possessed registered documents duly executed/verified by Sub-Registrar, i.e. lease deed and sale deed---Appellant might be treated as third person---Executant of registered sale deed had not come forward to challenge it by filing declaratory suit, hence proviso of Art. 79 of Qanun-e-Shahadat, 1984 would not apply---Second appeal was dismissed accordingly.

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

----S. 100---Second appeal---Grounds---Procedural defects---Substantial errors/defects in procedure which may possibly produce an error/defect in the decision of the case on merits are as following:

o. Omission to frame proper issue, or to try a material issue

o. Failure to record the evidence of witnesses in the manner prescribed;

o. Misjoinder, or non-joinder of parties;

o. Disposing of appeal after the death of a party without impleading the legal representatives as parties;

o. A finding arrived at after wrongly placing onus of proof.;

o. Where the judgment is not written in accordance with Order XLI, Rule 31, except where the error does not affect the merits; and

o. Error or defect in the admissibility of evidence, or improper rejection of evidence.

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

----Arts. 117 & 118---Burden of proof---Exception---"Third person"---Scope---Beneficiary of deed---Where third person challenges the validity of registered document/transfer/transaction of property, the onus shifts upon the beneficiary only when such third person brings on record concrete, complete/solid/convincing evidence to prove his contention---If such third person fails to produce some considerable evidence, no question of shifting of onus to establish upon the beneficiary applies in that eventuality.

Khan Zaman for Appellant.

Imran Ahmed for Respondent No.1.

Syed Arshad Hussain Naqvi, A.A.G. Sindh for Respondents Nos.2 and 3.

2022 M L D 308

[Sindh]

Before Muhammad Shafi Siddiqui, J

Ms. QAISER JEHAN BEGUM---Appellant

Versus

SINDH BUILDING CONTROL AUTHORITY (SBCA) through Director General and 6 others---Respondents

Second Appeal No.205 of 2019, decided on 30th April, 2021.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.100 & O.VII, R.11---Second appeal---Rejection of plaint---Suit filed by appellant/plaintiff was rejected by Trial Court as well as Lower Appellate Court---Validity---Appellant/plaintiff sought declaration to the extent of her property which she was enjoying as an owner and if any right out of a property, as enjoyed by appellant/plaintiff was infringed, provisions of S.42 of Specific Relief Act, 1877, would come into action for her safeguards--- Person entitled to any legal character or to a right as to any property could institute a suit---Plaint could be rejected under O.VII, R.11 C.P.C., if it was barred by law---None of the provisions of law was cited by respondent/defendant nor was mentioned in the orders/judgments of two Courts below whereby plaint of appellant/plaintiff could be rejected under O.VII, R.11, C.P.C.---Appellant/plaintiff had a cause of action on account of a threat to her property in view of alleged unlawful and illegal construction which was being raised on adjacent plot---High Court set aside concurrent orders/judgments passed by two Courts below and case was remanded to Trial Court for decision on merits---Second appeal was allowed, in circumstances.

Saadat Yar Khan for Appellant.

Zeeshan Khan for Respondent No.3.

Tarik Ali Respondent No.5.

Faraz Akhtar holding brief for Waleed Rehan Khanzada for Respondent No.6.

2022 M L D 333

[Sindh]

Before Muhammad Saleem Jessar, J

MUHAMMAD ANWER JOKHIO and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.S-46 of 2020, decided on 29th January, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 498, 499 & 561-A---Bail, grant of---Reduction of surety amount---Scope---Law required nothing more than satisfaction of Police Officer or court for quantum of surety bond---Such satisfaction, however, must always be reasonable one because demand of improbable or huge amount might result in frustrating the purpose and object of a release order, issued under S. 497/498, Cr.P.C., because failure of surety in producing the accused or payment of fine (surety) amount never operated as a bar upon the court to compel the attendance of accused by adopting permissible coercive measures---Release, when became the right of the accused then such satisfaction should be a little more relaxed/liberal else same would amount as a hurdle towards an earned right---In the present case, punishment of the offence was not more than one year, therefore, did not exceed the limits of prohibitory clause of S.497, Cr.P.C. and fell within the category of bailable offence---In bailable offences, bail becomes right of accused not as a grace or concession, therefore, when an accused earned remedy as of his right, he should not be deprived of the same---Release of accused was conditional for furnishing surety in sum of Rs.100,000/- each, which the applicants had furnished and complied with in its letter and spirit---Such surety amount was sufficient and did not require enhancement, more particularly when the accused had voluntarily surrendered themselves before the court concerned---Offence was not carrying any capital punishment, justifying imposing of huge surety amount---Prima facie, the impugned order, nowhere, showed as to how earlier accepted surety amount became insufficient---In absence of such reasons, the enhanced surety amount would never be legal and justified---Application was allowed by setting aside the impugned order, in circumstances.

Abdul Jabbar v. The State 1998 PCr.LJ 1465 ref.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

2022 M L D 344

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

SHAH MURAD NINDWANI and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-170 of 2019, decided on 26th April, 2021.

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

----Ss. 302(b), 324, 337-H(2), 147, 148 & 149---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Examination of accused---Scope---Accused were charged that they, while armed with deadly weapons, in furtherance of their common object made unlawful assembly, committed offence of rioting, made direct fire upon complainant party with intention to commit their qatl-i-amd, due to which son of complainant was hit and died while daughter of complainant was kidnapped---Record showed that the material piece of evidence being relied upon by the prosecution against the accused was not put to them at the time of recording their statements under S.342, Cr.P.C.---No doubt, joint questions with regard to documentary evidence in shape of memo, FIR, memo of arrest and recovery and other material so also evidence of Medical Officer, post-mortem report and recovery were put to the accused but the said questions did not specify as to the date of arrest and recovery from the accused on their pointation, empties from the spot coupled with report of Forensic Science Laboratory authorities that such weapons were in working condition etc. and the manner thereof---Said omissions on the part of the Trial Court were not mere irregularities curable under S.537, Cr.P.C, but the same were downright illegalities, which had vitiated the conviction and sentence of accused recorded by the Trial Court---Trial Court had rendered judgment in violation of statutory provisions of S.367, Cr.P.C, as such it was not sustainable---Appeal was allowed by setting aside convictions and sentences recorded by the Trial Court---Case was remanded to the Trial Court with the direction to record the statements of accused under S.342, Cr.P.C., afresh by putting them all pieces of prosecution evidence, enabling them to know and respond to the same and shall decide the case after hearing the parties.

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

----S.342---Examination of accused---Scope---All the incriminating pieces of evidence brought on record by the prosecution ought to be put to the accused at the time of recording his statement under S.342, Cr.P.C., for his explanation/reply.

Muhammad Ali Dayo for Appellants.

Ghulam Mujtaba Jakhar for the Complainant.

Khalil Ahmed Maitlo, DPG for the State.

2022 M L D 358

[Sindh]

Before Amjad Ali Sahito, J

WASEEM AKHTAR---Applicant

Versus

The STATE---Respondent

Bail Application No.1450 of 2020, decided on 7th October, 2020.

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

----S.498---Penal Code (XLV of 1860), S.408---Criminal breach of trust by a clerk or servant---Pre-arrest bail, refusal of---No plea of mala fide on the part of complainant/police was asserted by the accused---Scope---Allegation against the petitioner was that he being an employee of a company, transferred an amount Rs.62,78,699/- to his own account which amount was refund of another company---Petitioner contended that the complainant/company had wrongly involved him in S.408, P.P.C., as alleged offence, at the most, attracted cheating (S.420, P.P.C.), which was a bailable offence---Record (documents/vouchers) established that the petitioner, being an employee of the complainant (company), had transferred the alleged amount at the relevant time, hence the ingredients of S.408, P.P.C., were applicable in the case---Concession of pre-arrest bail could not be allowed to an accused person unless the Court was satisfied with the seriousness of the accused's assertion regarding his intended arrest being actuated by mala fide on the part of the police---Not a word about said crucial aspect of the matter was found as no mala fide was made on the part of the complainant to believe that the petitioner had been implicated in the case falsely---Only tentative assessment was to be made and deeper appreciation was not permissible at bail stage---Petitioner had also failed to bring his case for further inquiry as envisaged under S.497(2), Cr.P.C.---Ad-interim pre-arrest bail earlier granted to the petitioner was recalled---Bail was refused, in circumstances.

Rana Abdul Khaliq v. The State and another 2019 SCMR 1129 ref.

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

----S.498---Pre-arrest bail---Scope and principles---Grant of pre-arrest bail was an extra-ordinary remedy in criminal jurisdiction; it was a diversion of the usual course of law, arrest in cognizable cases; protection to the innocent being hounded on trump up charges through abuse of process of law, therefore, an applicant seeking judicial protection was required to reasonably demonstrate that intended arrest was calculated to humiliate him with taints of mala fide, it was not a substitute for post-arrest bail in every run of the mill (criminal case)as it seriously hampered the course of investigation.

M.R. Sethi for Applicant.

Umar Farooq for the Complainant.

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

2022 M L D 403

[Sindh]

Before Aftab Ahmed Gorar, J

IQBAL AHMED---Petitioner

Versus

The STATE---Respondent

Criminal Bail Applications Nos.562, 563, 564 of 2021, decided on 1st September, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---Pre-arrest bail---Absence of accused---Scope---Accused who is released on interim pre-arrest bail must attend the court on each and every date---Presence of accused is required throughout the proceedings of the pre-arrest bail application and the fact that he appeared on the first date when ad interim bail was granted does not in any manner lessen the rigours of S. 498-A, Cr.P.C., or absolve the responsibility of the accused from appearing in person before the court---Application was dismissed for non-production.

Abdul Khursheed Khan for Applicant.

2022 M L D 413

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Mahar and Irshad Ali Shah, JJ

AFTAB AHMED and another---Petitioners

Versus

PROVINCE OF SINDH and others---Respondents

C.Ps. Nos.D-2517 and D-2831 of 2016, decided on 24th September, 2019.

Criminal Procedure Code (V of 1898)---

----Ss.156 & 265-D---Investigation into cognizable cases---Framing of charge---Scope---Petitioner assailed submission of supplementary challan after re-investigation and cognizance of case taken by Magistrate on such challan---Amended charge in conformity with the supplementary challan had already been framed by the Trial Court and the case was scheduled for recording evidence of prosecution witnesses---Framing of the charge against petitioners was a judicial order, which was not challenged by the petitioners, which implied that petitioners had accepted the commencement of trial---Reversing the entire proceedings as suggested by petitioners to its beginning by declaring the order of re-investigation as illegal was unjustified---Constitutional petitions were dismissed.

Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro and another 2010 SCMR 624 distinguished.

Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109 ref.

Riazat Ali Sahar and Ayaz Hussain Tunio for Petitioners.

Salahuddin Panhwar for Respondent No.4.

Ms. Sana Memon, A.P.G. for the State.

2022 M L D 425

[Sindh]

Before Adnan-ul-Karim Memon and Yousuf Ali Sayeed, JJ

P.C. NASIR HUSSAIN---Applicant

Versus

HASNAIN SHAH and 2 others---Respondents

Criminal Miscellaneous Application No.D-16 of 2020, decided on 11th August, 2020.

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

----Ss.6 & 23---Act of "terrorism"---Power to transfer cases of regular Court to Special Court---Scope---Accused along with others was alleged to have fired at the police party upon being espied---Accused moved application under S. 23 of Anti-Terrorism Act, 1997, before the Trial Court, which was allowed vide impugned order---Held, for an action or threat of action to be accepted as "terrorism" within the meaning of S.6 of Anti-Terrorism Act, 1997, the action must fall in subsection (2) of S.6, of Anti-Terrorism Act, 1997 and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of S.6---Any action constituting an offence, howsoever, grave, shocking, brutal, gruesome or horrorfying did not qualify to the term "terrorism" if it was not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of S.6, of the Anti-Terrorism Act, 1997---Ingredients of S. 6(1)(b) & (c) were conspicuously absent---Application was dismissed.

Ghulam Hussain and others v. The State PLD 2020 SC 61 fol.

Asim Malik for Applicant

2022 M L D 438

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto and Zulfiqar Ali Sangi, JJ

ZUBAIR JAKHRANI---Appellant

Versus

The STATE---Respondent

Criminal Application No.D-34 of 2020, decided on 17th November, 2020.

Penal Code (XLV of 1860)---

----S.365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 7& 21-L---Kidnapping or abduction for ransom, act of terrorism---Appreciation of evidence---Benefit of doubt---Conviction in absentia---Scope---Accused were charged for kidnapping the complainant for ransom---No charge was framed against the accused under S.21-L of the Anti-Terrorism Act, 1997 (Act)---Trial Court was required to satisfy itself according to S.19(10) of the said Act, that absence of the accused was deliberate---Trial Court had failed to follow the relevant provisions of law---Trial Court had convicted and sentenced the accused under S.21-L of the Act, in his absentia---Procedure adopted by the Trial Court was absolutely illegal---No doubt, accused had approached the court directly without filing an application under S.19(12) of the Act before Trial Court---However, under S.25 of Anti-Terrorism Act, 1997, there was no bar that a person convicted and sentenced in absentia under S.21-L of Anti-Terrorism Act, 1997, before Trial Court could not file appeal without filing application under S.19(12) of the Act---Record showed that accused had been acquitted in his absentia in the main offence under S.265-A, P.P.C., during the trial of co-accused persons---Circumstances established that the prosecution had failed to establish its case against the accused---Appeal against conviction in absentia was allowed, in circumstances.

Haji Muhammad v. The State PLD 2003 SC 262 ref.

Arbab Khan v. The State 2010 SCMR 755 ref.

Habibullah G. Ghouri and Faiz Muhammad Larik for Appellant.

Muhammad Noonari, Deputy Prosecutor General for the State.

2022 M L D 452

[Sindh (Sukkur Bench)]

Before Irshad Ali Shah, J

HIMAT ALI---Applicant/Accused

Versus

The STATE---Respondent

Criminal Post Arrest Bail Application No.S-280 of 2020, decided on 26th June, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.398, 401, 381-A & 411---Attempt to commit robbery or dacoity when armed with deadly weapon, belonging to gang of thieves, theft of a car or other motor vehicles, dishonestly receiving stolen property---Bail, grant of---Accused with the rest of culprits being member of wandering gang associated with intention to commit theft at the place of incident and then escaped leaving behind stolen motorcycle when they found the police party coming towards them, for that the present case was registered---Nothing was brought on record by the prosecution which would suggest that the accused was member of wandering gang associated habitually to commit theft---Identification of accused by the police personnel at night time that too under the light of police mobile was a weak piece of evidence---No independent witness was available---Offence alleged against the accused did not fall within the prohibitory clause of S.497, Cr.P.C.---Grant of bail in such like cases was a rule while rejection was an exception---No exceptional ground was available, which could justify withholding the concession of bail---Accused was admitted to bail, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

Noor Muhammad Memon for Applicant.

2022 M L D 456

[Sindh (Hyderabad Bench)]

Before Irshad Ali Shah, J

ZULFIQAR ALI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.S-77 of 1997, decided on 15th November, 2019.

Penal Code (XLV of 1860)---

----S.468---Criminal Procedure Code (V of 1898), S.195---Forgery for purpose of cheating, offences relating to documents given in evidence---Appreciation of evidence---Benefit of doubt---Non-production of original documents in evidence---Scope---Accused was convicted for having forged the signatures of respondent on letters addressed to a government department with intention to cause damage to him---Held; S.195(1)(c), Cr.P.C., prescribed that no Court shall take cognizance of offence relating to document except on complaint, in writing of Court where it was found to be forged---Neither was there any finding of the Court that the documents were forged nor the complaint was filed by the Court itself or anyone under authorization of such Court---Such omission had made the very complaint to be infirm/barred under the provisions of S.195(1)(c), Cr.P.C.---No document, which was found to have been forged was produced in evidence by the complainant in original---No expert evidence, existed which could suggest that those documents were forged by the accused---Conviction and sentence recorded against the accused together with the impugned judgment were set aside.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Ghulam Nabi Jarwar for Appellant.

Imam Bux Baloch (absent) for the Complainant.

Ms. Rameshan Oad, A.P.G. for the State

2022 M L D 469

[Sindh]

Before Amjad Ali Sahito, J

ABDUL QADIR---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1084 of 2020, decided on 7th August, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Possession of narcotics---Bail, grant of---Failure to frame charge---Completion of investigation---Further inquiry---Scope---Accused was allegedly found in possession of 680 grams of heroin---Accused was liable to be tried under S.9(b) of Control of Narcotic Substances Act, 1997, hence the case of accused became one of further enquiry falling within the purview of S.497(2), Cr.P.C.---Accused was behind the bars for last seven months and no progress was made in the trial, even charge was not framed as yet---Accused was no more required for further investigation---Accused had succeeded to make out a case for grant of post-arrest bail---Application for grant of bail was allowed, in circumstances.

Ali Hassan alias Hasan v. The State 2014 YLR 188 rel.

Dur Muhammad Shah and Salahuddin Chandio for Applicant.

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

2022 M L D 476

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

WASEEM AHMED and another---Petitioners

Versus

The DIRECTOR GENERAL, ACCOUNTABILITY BUREAU, SINDH and others---Respondents

Constitution Petitions Nos.D-2440 and D.2713 of 2020, decided on 13th August, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a) (b) & 26---Constitution of Pakistan, Art.199---Constitutional petition---Pardon, grant of---Petitioner was accused facing trial who was granted conditional pardon to disclose true facts regarding commission of offence by all accused persons---Validity---Chairman National Accountability Bureau (NAB) was empowered under S.26 of National Accountability Ordinance, 1999, to grant pardon to an accused subject to certain terms and conditions---Pardon granted to petitioner was in accordance with law---Petitioner was behind the bars and charge was not framed but he had already been examined under S.164, Cr.P.C., where he gave full particulars of the scam---Co-accused who was beneficiary of scam was already on bail whereas petitioner was not a beneficiary---Bail was allowed, in circumstances.

Irshad Ahmed Jatoi for Petitioner (in Constitution Petition No.D-2440 of 2020).

Muhammad Rehman Ghous for Petitioner (in Constitution Petition No.D-2713 of 2020).

2022 M L D 486

[Sindh]

Before Muhammad Iqbal Kalhoro and Irshad Ali Shah, JJ

Mst. SAJIDA YOUSUF---Petitioner

Versus

The DIRECTOR FIA SINDH KARACHI and 7 others---Respondents

Constitution Petition No.D-1383 of 2015, decided on 28th January, 2020.

Electricity Act (IX of 1910)---

----Ss.39 & 39-A---Penal Code (XLV of 1860), Ss.379 & 109--- Criminal Procedure Code (V of 1898), Ss.249-A & 265-K----Constitution of Pakistan, Art. 199---Quashing of FIR---Constitutional petition---Alternate remedy, availability of---Theft of energy, penalty for installation of artificial means, etc, theft, abetment---Quashing of FIR---Cognizance of offence by Trial Court---Accused was alleged to have been found involved in committing theft of electricity---Cognizance of the offence allegedly committed by accused had already been taken by the Court having jurisdiction and after cognizance the quashing of FIR could not be ordered---Accused, after joining the trial, could exhaust the remedy under Ss.249-A & 265-K, Cr.P.C., before the Trial Court in accordance with law---No case for quashing of FIR or ordering the restoration of electricity supply to the premises in possession of the accused was made out---Constitutional petition for quashing of FIR was dismissed, in circumstances.

Syed Mujahid and others v. Province of Sindh and others PLD 2014 Sindh 472 and Col. Shah Sadiq v. Ashiq and others 2006 SCMR 276 ref.

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

Shabana Ishaque and Sathi M. Ishaque for Petitioner.

Ahsan Imam Rizvi for Respondents Nos.4 and 5.

Kashif Paracha, DAG.

2022 M L D 496

[Sindh]

Before Abdul Maalik Gaddi and Rashida Asad, JJ

Mst. ADEEBA KHAN---Applicant

Versus

The STATE through FIA---Respondent

Criminal Bail Application No.35 of 2020, decided on 6th April, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss.409, 468, 471, 477-A & 109---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.5---Criminal breach of trust by a clerk or servant, forgery for the purpose of cheating, using as genuine a forged document which is known to be forged, fraudulently destroying or defacing or attempting to destroy or deface or secreting, a will etc., abetment---Bail, refusal of---Allegations against the accused was that she while holding post as Branch Manager of a Bank, she along with her senior management with their joint consent, embezzled/cheated/fraud of Rs.4.75 Million against "Term Deposit Certificate" (TDR) invested by the complainant in his account being maintained at said Bank---Accused was specifically nominated in FIR with specific role---First Information Report was corroborated by documentary evidence as well as statement of witnesses recorded under S.161, Cr.P.C.---Charging S.409, P.P.C. falling under the Offences in Respect of Bank (Special Courts) Ordinance, 1984, as same had been committed in connection with the business of a Bank and the same fell within the prohibitory clause of S.497, Cr.P.C.---Refusal of bail, in circumstances, was a rule and acceptance an exception---Accused was involved in a heinous offence---Not only that, the said offences had also impaired the trust of the people in Banking System---In that way, the alleged crime could safely be considered to be a crime against the whole society and granting bail to such like persons would amount to encourage the heinous crimes in the society---Investigating Officer of the case had found the accused guilty for the commission of the offence---Accused had failed to show that her involvement was product of mala fide or ill will on the part of complainant or investigating agency---Bail application was dismissed, in circumstances.

Saeed Ahmed v. The State 1996 SCMR 1132; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Zaigham Ashraf v. The State and others 2016 SCMR 18; Aman Ullah v. The State and another 2017 YLR 1263; Muhammad Bilal Anwar Shakir v. The State 2017 MLD 1957; Hussain Haqani v. The State 2000 PCr.LJ 161; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Chief Manager/Attorney, Allied Bank Limited v. Shahid Ullah and others PLD 2009 SC 446; Muhammad Haseeb Khan and another v. The State through FIA CBC, Karachi 2012 PCr.LJ 1; Muhammad Hanif S. Kalia and 2 others v. The State 2009 PCr.LJ 1192 and Ahmed Khan v. The State 2013 YLR 2233 ref.

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

----S.497---Bail---Tentative assessment of evidence---Scope---While deciding bail applications, deeper appreciation of evidence was not warranted and only bird's eye view was to be made from tentative assessment of the material available on record.

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

----S.497---Bail---Scope---Observation, if any, in bail order was tentative in nature and would not affect the merits of the case.

Muhammad Saleem Mangrio and Muhammad Jamil for Applicant.

Muhammad Ahmed, Assistant Attorney General for Respondent.

Mohsin Shahwani and Hamid A. Memon for the Complainant.

2022 M L D 509

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Adnan-ul-Karim Memon, JJ

NAZEER AHMED and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Chairman National Accountability Bureau, Islamabad and others---Respondents

Constitutional Petitions Nos.D-447 and D-811 of 2020, decided on 9th September, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a) & 9(b)---Constitution of Pakistan, Art.199---Constitutional petition---Bail, refusal of---Misuse of authority---Causing loss to national exchequer---Rule of consistency---Applicability---Accused persons were arrested by National Accountability Bureau (NAB) for selling valuable government land on forged and fictitious documents---Plea raised by accused persons was that some of co-accused persons had already granted bail either by High Court or by Supreme Court in same reference and almost on same allegations---Validity---Accused persons were nominated in NAB Reference with specific allegation that they with collusion and connivance with each other managed fake entries in revenue record whereby land belonging to government was fraudulently sold to persons of their choice who further sold out the same to Defence Housing Authority illegally and thereby caused loss of millions of Rupees to national exchequer---Accused persons were not entitled to bail on rule of consistency as cases of accused persons were altogether different as that of co-accused who had been granted bail---Sufficient material was available on record to connect accused persons with commission of offence which offence was heinous in nature--- Bail was refused, in circumstances.

Talat Ishaq v. National Accountability Bureau through Chairman and others PLD 2019 SC 112 and Nisar Ahmed v. The State PLD 2016 SC 11 ref.

Muhammad Umair Bachani and Kashif Hussain Agha for Petitioners (in C.P. No.D-447 of 2020).

Muhammad Umair Bachani for Petitioner (in C.P. No.D-811 of 2020).

Muhammad Humayoon Khan, Deputy Attorney General for Pakistan for Respondents.

Jangu Khan, Special Prosecutor NAB along with Qamar Abbas (Deputy Director NAB).

2022 M L D 520

[Sindh]

Before Nazar Akbar, J

AMJAD KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1697 of 2018, decided on 4th March, 2019.

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---Scope---Accused was alleged to have been found in possession of 2200 grams of contraband---Prosecution stated that Investigation Officer had retired and despite directions of the Court they were unable to identify the status of the cases against the accused, that too having been shown in the Criminal Record Office (CRO)---Challan had been submitted for more than a year, but no charge had been framed---Such grounds were enough to condemn the prosecution for its failure by granting bail to the accused---Accused could not be kept in jail, in petty cases, in which all the witnesses were police officials---Petition for grant of bail was allowed, in circumstances.

Subhan Khan v. The State 2002 SCMR 1979; Sardar Amjad Ali Khan v. The State 2009 SCMR 425; Rahib Ali v. The State 2010 YLR 844; Khan Muhammad v. The State 2008 YLR 1505; Muhammad Bilal v. The State 2009 MLD 335 and Arifullah v The State PLD 2013 Pesh. 32 ref.

Syed Inayat Hussain Shah for Applicant.

2022 M L D 531

[Sindh]

Before Abdul Maalik Gaddi, J

ASHIQUE HUSSAIN through Authorized Attorney---Applicant

Versus

The STATE and another---Respondent

Criminal Revision Application No.213 of 2019, decided on 20th December, 2019.

Criminal Procedure Code (V of 1898)---

----S.516-A---Penal Code (XLV of 1860), Ss.320, 337-G & 427---Provincial Motor Vehicles Ordinance (XIX of 1965), S. 95---Superdari of vehicle---Inspection by motor vehicle Examiner---Scope---Appellant being attorney of original owner assailed order of trial court whereby his application for superdari of vehicle seized as case property was allowed to its real owner on furnishing solvent surety in the equal amount of the vehicle---Validity---In the case of accident, the owner of the vehicle did nothing to advance the commission of any offence, but it was his driver who was liable for the said offence, therefore, by detaining the vehicle, its owner was being penalized and deprived of exercising his legal right to use his own property---If the property was left in the custody of police, it would not serve any purpose and it would also reduce its utility which again tantamount to penalizing the owner unnecessarily---Section 95, Motor Vehicles Ordinance, 1965 provided that after inspection of the vehicle, the same was to be returned to its owner without unnecessary delay and in no case later than forty eight (48) hours of its removal---If the vehicle was detained then again the owner would be put to great hardships as he could not get his vehicle repaired and to use the same subsequently---High Court observed that in the present case, driver of the vehicle had been granted bail by the Trial Court in the sum of Rs.200,000/- [rupees two lac only), whereas, the impugned order passed by the Trial Court for releasing the vehicle equivalent to the amount of bus is/was harsh, unjustified and against the spirit of Chap. XLIII of the Criminal Procedure Code, 1898, which needed to be modified accordingly---Original owner of the subject vehicle was present, who submitted that the vehicle might be released in his favour subject to furnishing only his P.R. bond in the sum of Rs.200,000/- [rupees two lac only)---Contention of the owner of the vehicle appeared to be reasonable---Consequently, the impugned order was modified to the extent that the vehicle be returned to its original owner on executing his P.R. bond in the sum of Rs.200,000/- [rupees two lac only] before the Trial Court, however, it was made clear that the property shall be produced by the owner before the Trial Court as and when required---Criminal revision application stood disposed of accordingly.

Phulla Singh v. Emperor AIR 1931 Lah. 565; Syed Razi Shah v. The State 1971 PCr.LJ 19 and Ali Muhammad Kalhoro v. The State 2004 YLR 943 rel.

Farjad Ali Khan for Applicant along with (owner of vehicle in person).

Ms. Rahat Ahsan, Additional Prosecutor General, Sindh for Respondent No.1.

Respondent No.2 in person.

2022 M L D 540

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui, J

FOUJ ALI and others---Applicants/Accused

Versus

The STATE and others---Respondents

Criminal Bail Application No.S-404 of 2020 and Criminal Miscellaneous Application No.S-212 of 2020, decided on 22nd October, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 364, 452, 147, 148 & 149---Qatl-i-amd, kidnapping or abducting in order to murder, house-trespass after preparation for hurt, assault or wrongful restraint, rioting, armed with deadly weapon, common object---Bail, refusal of---Scope---Allegation against accused persons was that they along with others due to some minuscule entered in the house of deceased at night, abducted him and subsequently murdered him---At that time some hot words were exchanged between one of the accused persons and brother of complainant due to which the later was abducted and murdered---Complainant and accused persons were residents of the same vicinity, as such those of the accused who had taken part in the offence overtly, their misidentification was ruled out---Defence heavily relied on the re-investigation carried out on the request of the accused party, according to which actual author of the offence was the one who was named through a further statement---High Court observed that police could carry out multiple investigations but ipse dixit of police was not binding on the Court---Application for grant of bail was dismissed, in circumstances.

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

----S.497(5)---Cancellation of bail---Scope---Once bail to an accused is granted, the same may be recalled when the accused misuses the concession of bail or the order of bail is patently illegal.

Sohail Ahmed Khoso for Applicant (in Criminal Bail Application No.S-404 of 2020).

Nisar Ahmed Bhanbhro, Abdul Waheed Bhanbhro and Akhtiar Ahmed Bhanbhro for Applicant (in Criminal Miscellaneous Application No.S-212 of 2020 and for Complainant (in Criminal Bail Application No.S.404 of 2020).

2022 M L D 548

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

Syed HUR RIAHI GARDEZI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs and 2 others---Respondents

C.P. No.D-1704 of 2020, decided on 19th March, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a)(iv) & 9(a)(vi)---Criminal Procedure Code (V of 1898), S.265-K---Constitution of Pakistan, Art.199---Constitutional petition---Quashing of proceedings---Illegal pecuniary advantage, absence of---Loss suffered by Corporation---Petitioner was facing trial before Accountability Court--- Allegation against petitioner was that he was member of Investment committee and on its recommendations investment made by the Corporation resulted into loss---Validity---Such was not one committee merely, which decided to go for restructuring but a whole lot of them plus Board of Directors chose to do so after weighing several options offered by FDIBL for settlement and consulting the matter with legal experts---When everyone concerned was on the Board and behind such decision question whether each one of them was acting with mens rea in order to cause loss to national exchequer and gain to himself was not likely to be answered in affirmative---Any incorrect decision wreaking havoc to the Corporation did not mean that it was the result of some action or omission constituting an offence---Even if it was so, each one participating in the process acted with ill intent and was criminally liable for it unless some relevant evidence to that end with specific role of the one shown concerned had been found---Petitioner was just a part of a decision for recovery of lost investment, which had gone wrong and had caused alleged loss to the Corporation--- In the capacity of one of the Members of Board of Directors and Investment Committee could not be held criminally liable for, it, in absence of any evidence pointing out to his actus reus combined with mens rea to make personal gain and to cause such a loss---Charge containing such allegations against petitioner was groundless and there was no likelihood or probability of conviction of petitioner on the basis of material available with prosecution---High Court quashed proceedings against petitioner---Constitutional petition was allowed accordingly.

2005 MLD 1854 rel.

2006 YLR 1648; 2008 SCMR 1118; PLD 2008 SC 166; PLD 2016 SC 276; 2017 PCr.LJ 674; 2020 MLD 696; PLD 2003 SC 46; 1993 SCMR 523; PLD 1999 SC 1063; 2015 PCr.LJ 205; 2008 SCMR 1118; 1972 PCr.LJ 1130; PLD 1993 SC 399; PLD 1982 Kar 130; PLD 1994 SC 539; 1994 SCMR 771; PLD 2009 Kar. 278; 2016 SCMR 189; 2017 SCMR 56; 2020 SCMR 500; 2008 SCMR 383; 2009 PCr.LJ 36; 2016 PCr.LJ 1144; 2009 YLR 1370 and 2011 MLD 313 ref.

Makhdoom Ali Khan for Petitioner.

Sattar Muhammad Awan, Special Prosecutor NAB for Respondents.

2022 M L D 560

[Sindh]

Before Rashida Asad, J

MUHAMMAD HASSAN FADOO---Petitioner

Versus

IIIRD ADDITIONAL SESSIONS JUDGE "SOUTH" AT KARACHI and 2 others---Respondents

Constitution Petition No.S-62 of 2019, decided on 31st October, 2019.

Constitution of Pakistan---

----Art.199---Constitutional petition dismissed for non-prosecution---Restoration---Negligence of counsel/petitioner---Scope---Petitioner sought restoration of his petition dismissed for non-prosecution---Counsel for the petitioner had admitted in his application that he was well aware about the date of the fixation of captioned petition but he could not inform the petitioner as he had gone to his native place where according to him sometimes telephone signals remained unavailable---Stance taken by the counsel for the petitioner about his absence did not carry any weight and it was his professional obligation that he should have informed the petitioner about the date and it was for the petitioner to be vigilant in pursuing his case---Application for restoration of constitutional petition was dismissed, in circumstances.

Ammanullah Soomro v. Pakistan International Air Lines Corporation through Managing Directors Chairman and another 2010 YLR 352 rel.

Zulfiqar Ali v. Lal Din and others 1974 SCMR 162 ref.

Nizamuddin Khan for Petitioner.

Abdul Qadir Khan for Respondent No.3.

2022 M L D 570

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

ANWAR ALI KHASKHELI and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-1436 of 2019, decided on 13th April, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 392, 201 & 34---Qatl-i-amd, robbery, causing disappearance of evidence of offence, common intention---Bail, refusal of---Delayed FIR---Scope---Allegation against accused persons was that they after snatching certain amount from the complainant's brother committed his murder and threw his dead body in a drain for causing disappearance of the evidence---Delay in lodging FIR per se was no ground when such horrible incident had taken place---Accused persons did not deserve the concession of bail as they were involved in an offence punishable with capital punishment falling within the ambit of prohibitory clause of S.497, Cr.P.C. with specific role---Prima facie sufficient material was available to connect the accused persons with the commission of offence---Eye-witnesses examined by the police in terms of S.161, Cr.P.C, had fully implicated the accused persons---Application for grant of bail was dismissed, in circumstances.

2017 SCMR 61; 2017 SCMR 596; 2016 PCr.LJ 1754; 2014 SCMR 1347; 2014 SCMR 1502; 2014 SCMR 27; PLD 2013 Pesh. 120; 2011 SCMR 1543 and 2018 YLR(N) 149 distinguished.

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

----S. 497---Bail---Tentative assessment---Scope---Bail application is required to be decided on tentative assessment of matter and deeper appreciation of evidence is precluded. [p. 572] C

Saifullah Dasti for Applicants.

Suneel Kumar along with the Complainant.

2022 M L D 577

[Sindh]

Before Mohammad Karim Khan Agha and Amjad Ali Sahito, JJ

ABDUL ZAHEER---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.134 of 2011, decided on 11th November, 2020.

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

----Ss.420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S. 5(2)---Cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document, common intention, criminal misconduct---Appreciation of evidence---Benefit of doubt---Prosecution case was that an amount of more than Rs. 29 million were found short in the account of complainants/account holders and that the accused was responsible for the same through his illegal acts---Record showed that the accused had mainly been convicted because he was allegedly the cash supervisor, however that was in some doubt as according to witness he was client supervisor whose job was to bring more account holders to the Bank---Audit report was against account, however the audit report had not explained as to how a loss of several lac jumped to three crore---No prosecution witness had given any direct evidence of any fraudulent activities of the accused except a witness who stated in his evidence that the accused committed the fraud but produced no evidence in support of his contention---Surprisingly, co-accused in whose account some of the fraudulently acquired funds were transferred to and withdrawn, whom there appeared to be more evidence against, was acquitted---Neither the Bank nor the complainant filed any appeal against his acquittal---Operation Manager/witness at the time at the concerned branch stated in his cross-examination which tended to indicate that the person who was meant to monitor fraud at the branch had no knowledge of any such fraud let alone being committed by the accused---Auditor/witness stated that he had no proof that the accused was cash supervisor as apparently he did not need evidence of the same despite not even calling for his personal file---Said witness did not produce the statements of Bank staff or complainants which were recorded by him and had only relied on photocopy documents which greatly detracted from the veracity of his audit report---Even the audit report only found the accused guilty of negligence as opposed to criminality which report he concealed from the Investigating Officer---Interestingly, auditor found prosecution witness guilty of gross negligence and yet he was a witness in that case which suggested that witness rather limited evidence against the accused in order to save his own skin---Evidence suggested that the more junior accused might have been made a scapegoat in order to spare more senior Bank officials---Credibility and reliability of evidence of another witness was shattered during cross-examination as he was unable to produce a single document to link the accused to the evidence which he gave against the accused and as such no reliance on his evidence was to be placed which even otherwise hardly implicated the accused in any fraud---Investigating Officer failed to collect the deposit slips of the complainants and Bank statements none of which were exhibited and as such it was difficult to see how he reached the conclusion concerning the fraudulent transactions and that the accused was responsible for them especially as by his own admission he did not read the internal audit report which the prosecution placed so much reliance on---No complainant from whose account money was taken had implicated the accused---No money was recovered from the accused and no withdrawal cheques with his signature on had been recovered---No evidence that the assets which were allegedly owned by the accused and purchased out of the proceeds of crime arose out of the offences for which he had been charged were linked to him---All the documents exhibited against the accused were photocopies and were inadmissible in evidence---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 trial---

----Benefit of doubt---Principle---Accused would be entitled to the benefit of the doubt not by way of concession but as of right.

S. Muhammad Ishrat Ghazali for Appellant.

Kashif Hanif for the Complainant.

Irfan Ali Memon, Deputy Attorney General for the State.

2022 M L D 592

[Sindh Board of Revenue]

Before Tameezuddin Khero, Member

SHAHAN and 4 others---Petitioners

Versus

MUHAMMAD SIDDIQUE and 2 others---Respondents

Record of Rights Revision No.95 of 2002, decided on 31st December, 2019.

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

---S. 164---Respondents were granted an area of 5-15 acres in the year 1958-59---Grant in question was fully paid up, sanction was issued by Colonization Officer and later on, a new survey was formed vide impugned order---Petitioner filed appeal against the revised sanction on the ground that the newly formed survey number did not fall within the original grant of respondents and the land was under occupation of petitioners, but the appeal was dismissed---Validity---Revised sanction was granted after measurement of the land within the grant sketch and the Mukhtiarkar had reported that after measurement neither the area was increased nor decreased---Revision petition was dismissed, in circumstances.

2009 CLC 604; 2007 SCMR 834 and 1995 MLD 506 ref.

Sagir, Junior of Bhimraj for Petitioners.

2022 M L D 600

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

ZULFIQAR ALI---Appellant

Versus

The STATE through DPG, NAB---Respondent

Criminal Accountability Appeal No.3 of 2002 along with Criminal Accountability Acquittal Appeal No.9 of 2002, decided on 31st August, 2020.

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

----Ss.25(b) & 32---Plea bargain---Voluntariness---Proof---Accused after his arrest by National Accountability Bureau (NAB) entered into plea bargain and was released, whereas remaining co-accused persons were acquitted of the charge after trial--- Plea raised by accused was that his plea bargain was result of coercion--- Validity--- Accused made a conscious decision to enter into a plea bargain with NAB and did not run a risk of being convicted and sentenced to imprisonment at trial--- Accused only challenged legality of his plea bargain once other co-accused persons were acquitted---Appeal of accused was a belated attempt by him to get out of plea bargain which he freely entered into once he found that other co-accused persons were acquitted---If other co-accused would have convicted and imprisoned the accused could not have challenged his plea bargain---High Court declined to interfere in the matter as there was no illegality in plea bargain---Appeal was dismissed, in circumstances.

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

----Ss. 9(a) & 32---Appeal against acquittal---Double presumption of innocence---Accused persons were acquitted by Trial Court as prosecution failed to prove any case against them---Validity---No illegalities in judgment passed by Trial Court could be pointed out by National Accountability Bureau (NAB)---High Court declined to interfere in judgment of acquittal as there was no glaring illegality---Scope of appeal against acquittal was very narrow and accused persons were entitled to double presumption of innocence---Accused persons were rightly extended benefit of doubt---Appeal was dismissed, in circumstances.

The State v. Abdul Khaliq and others PLD 2011 SC 554 rel.

Murtaza Zulfiqar Ali for Appellant (in Criminal Accountability Appeal No.3 of 2002).

R.D. Kalhoro, Special Prosecutor, NAB for Respondent/State (Criminal Accountability Appeal No.3 of 2002).

R.D. Kalhoro Special Spectoro, NAB for Appellant (in Criminal Accountability Acquittal Appeal No.9 of 2002).

Nemo for Respondents (in Criminal Accountability Acquittal Appeal No.9 of 2002)

2022 M L D 626

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Adnan-ul-Karim Memon, JJ

Dr. MUHAMMAD KHAN SHAR and others---Petitioners

Versus

PRESIDENT, PAKISTAN MEDICAL ASSOCIATION CENTER and others---Respondents

Constitution Petition No.D-683 of 2020, decided on 11th August, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Scope---Petitioner challenged the legality of notification issued by Pakistan Medical Association whereby the respondents were declared to be unopposed winners of their respective posts in the Pakistan Medical Association---Validity---Pakistan Medical Association was neither controlled by the Federal/Provincial Government or local body nor was it a statutory body---Pakistan Medical Association did not satisfy the function test in terms of Art.199(5) of the Constitution---Pakistan Medical Association was not a person in terms of Art.199(5), therefore, no writ of certiorari or mandamus could be issued against its office holders---Mere registration under Societies Registration Act, 1860 or affiliation, if any, with the Pakistan Medical and Dental Council did not confer on it, the status of a public body---Constitutional petition was dismissed.

Muhammad Hashim Laghari for Petitioners.

Allah Bachayo Soomro, Additional Advocate General.

Muhammad Humayon Khan, Deputy Attorney General.

Parkash Kumar for Respondents Nos.1 to 10.

2022 M L D 657

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

FARAZ MEMON---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.S-58, M.As Nos.5731 and 5732 of 2020, decided on 31st August, 2020.

Criminal Procedure Code (V of 1898)---

----S.516-A---Order for custody and disposal of property pending trial in certain cases---Scope---Superdari of vehicle---Applicant sought release of the vehicle in question on superdari basis---Applicant on the basis of registration book issued by the Excise and Taxation Department was the lawful owner of the subject vehicle which was detained at police station because of being used in transportation of mainpuries---Accused, who was allegedly driving the vehicle, was on bail but the subject vehicle was detained at police station in the open air---No other claimant of the subject vehicle had come forward either before Trial Court or High Court---Vehicle could not be detained unless it was proved that the owner of the vehicle was aware that his vehicle was being used in the crime---Revision application was allowed and the custody of vehicle was temporarily handed over to the applicant on superdari basis.

Manzoor Ahmed Panhwar for Applicant.

2022 M L D 676

[Sindh]

Before Muhammad Iqbal Kalhoro and Fahim Ahmed Siddiqui, JJ

MUHAMMAD YOUNIS BALOCH---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and 2 others---Respondents

Constitution Petitions Nos.D-3280 and D-3281 of 2021, decided on 3rd August, 2021.

Criminal Procedure Code (V of 1898)---

----S.497---National Accountability Ordinance (XVIII of 1999), S.9---Constitution of Pakistan, Art.199---Corruption and corrupt practices---Bail, grant of---Delay in conclusion of trial---Scope---Accused sought post arrest bail on the ground of hardship---Fact that prosecution had not made any material progress was but obvious from its utter inability to adduce evidence of main witnesses thus far---Prosecution had not made a any effort or clamour to counter or offset protraction of the trials by seeking their urgent hearing rather, it had remained hibernated and content conveniently at a snail's pace instead of upping the ante, as required, to engender urgency in the matters---Petitioner, meanwhile, had completed more than 24 months in jail and there was nothing the prosecution could boast of qua its obligation to pursue the matters efficiently, and which, otherwise if done, could have been deemed sufficient to stave off consequences; the delay had since brought about in favour of the petitioner---Configuration divesting the accused of his right to expeditious disposal of the trial had definitely induced a sense calling for a set-up, which of course was temporary in nature and subject to inference to be made at the end of trial regarding accused person's guilt or otherwise, to mitigate the peril he was in for no fault of him---Accused was admitted to bail, in circumstances.

Shoukat Hayat for Petitioner.

Riaz Alam, Special Prosecutor, NAB along with IOs Qamar Abbas and Muhammad Kamran.

2022 M L D 686

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

GHULAM HYDER---Appellant

Versus

ASIF ALI KHYBER---Respondent

Civil Appeal No.S-34 of 2018, decided on 21st September, 2020.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Limitation Act (IX of 1908), Art. 159---Suit for recovery---Application for leave to appear and defend a summary suit---Limitation---Scope---Respondent filed a summary suit for recovery of certain amount---Upon service, the appellant applied for leave to defend but the same was dismissed being hopelessly time-barred---Suit was decreed as prayed for---Validity---Appellant had categorically stated in the application for leave to defend that promissory note was fraudulently and invalidly prepared---Such argument of appellant was required to be looked into by the Trial Court in its true perspective without prejudice to the earlier findings on the subject---Impugned order and decree were set aside---Matter was remanded to the Trial Court for fresh decision on merits---Appeal was disposed of accordingly.

Naeem Iqbal v. Mst. Zarina 1996 SCMR 1530 ref.

Shahzad Ali Shah for Appellant.

Farhad Ali Abro for Respondent.

2022 M L D 716

[Sindh]

Before Muhammad Saleem Jessar, J

RIZWAN and 3 others---Applicants/Accused

Versus

The STATE---Respondent

Criminal Bail Application No.961 of 2020, decided on 19th August, 2020.

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

----S.497---Penal Code (XLV of 1860), Ss. 337-A (i), 337-A (iii), 504 & 34---Shajjah-i-khafifah, shajjah-i-hashimah, intentional insult with intent to provoke breach of the peace and common intention---Bail, grant of---Delayed FIR---Scope---Prosecution case was that the accused persons had abused and beaten the complainant with fists and kicks---First Information Report was got registered by the complainant after a delay of about 40 days---No specific role was assigned to any of the accused persons---Mere heinousness of the offence did not mean that an innocent person who was under blame would be prejudiced particularly at bail stage---Accused persons had made out a good prima facie case for their admission on pre-arrest bail---Bail application was allowed, in circumstances.

Muhammad Ibrahim v. The State 2017 YLR Note 241; Israr Razzak v. The State and another 2017 YLR Note 242; Malik Sheraz Zafar v. The State and others 2017 YLR Note 243; Kashif Aman v. The State and another 2014 PCr.LJ 622 and Zamin Shah v. The State and another 2014 PCr.LJ 624 ref.

(b) Criminal trial---

----Delay in lodging criminal cases has always been held fatal for the prosecution.

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

----S.497---Bail---Scope---Every accused will be presumed to be blue eyed boy of the law until and unless he is found guilty of the charge and law cannot be stretched upon in favour of the prosecution particularly at bail stage.

Khaleel Ahmed Soomro v. The State PLD 2017 SC 730 ref.

Ghulam Nabi for Applicants along with Applicants (on bail).

Ms. Rubina Qadir, Deputy Prosecutor General, Sindh for the State.

2022 M L D 724

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput and Shamsuddin Abbasi, JJ

ABDUL JABBAR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-15 of 2019, decided on 20th March, 2020.

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

----S.9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6---Possession of narcotics---Appreciation of evidence---Report of Government Analysts---Scope---Prosecution case was that 216 kilograms charas was recovered during search of secret cavity of roller loaded/lying over truck, being driven by accused---Complainant/Investigating Officer and recovery witness had implicated the accused to have been apprehended being in possession of 216 kilograms of charas---Evidence of said witnesses in respect of arrest and recovery of charas was consistent and confidence inspiring---No material contradiction in the depositions of said witnesses appeared, rendering the prosecution case as doubtful---Admittedly, none of the prosecution witnesses had any enmity with the accused nor was it suggested---Chemical Examiner's report substantially and significantly met the rudiments of R.6 and Form-II of Control of Narcotic Substances (Government Analysts) Rules, 2001---Said report reflected that it borne reference of letter through which sample was deposited, date of receiving sample, name of official who deposited the sample, the condition of the seals on the packet, description of article in the parcel, total weight of each katta, net weight of slab of each katta, physical examination, resin test, microscopic examination and the result of the examination---Said Chemical Examiner's report qualified the required standards and it was in consonance with Form-II of R.6 of the Rules---Circumstances established that prosecution had proved its case against the accused---Appeal against conviction was dismissed, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Muhammad Boota v. The State and another 2020 SCMR 196 ref.

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

----Ss.9(c) & 29---Possession of narcotics---Appreciation of evidence---Burden of proof---Scope---Prosecution case was that 216 kilograms charas was recovered during search of secret cavity of roller loaded/lying over truck being driven by accused---Once the prosecution, prima facie established its case then under S.29 of the Control of Narcotic Substances Act, 1997, burden would shift upon the accused to prove contrary to the case of the prosecution and in the present case, the accused had failed to do so---Appeal against conviction was dismissed, in circumstances.

Muhammad Shabbir Rajput and Abdul Waheed Khushk for Appellant.

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

2022 M L D 735

[Sindh (Hyderabad Bench)]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD SULEMAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-189 of 2020, decided on 11th May, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, refusal of---Positive report of Chemical Examiner---Scope---Accused was alleged to have been found in possession of 1630 grams of charas and 940 grams of methamphetamine (Ice)---Narcotics were recovered in a considerable quantity and apparently no reason was available for falsely involving the accused in the case by the police---Narcotics were recovered on spy information and non-association of private witnesses was properly explained by the complainant in the FIR---No specific allegation of animosity was levelled against the raiding police party---Calendar of witnesses was short and all the witnesses were police officials, as such, there was likelihood of conclusion of trial without unnecessary delay---Recovered substances were sent to the Chemical Analyzer and a positive chemical examination report had been received---No case of bail was made out in favour of the accused---Petition for grant of bail was dismissed, in circumstances.

Abdul Baqi Jan Kakar for Applicant.

2022 M L D 768

[Sindh]

Before Amjad Ali Sahito, J

GHULAM FAROOQ CHANNA---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.855 of 2020, decided on 25th August, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.419, 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S. 5---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment---Criminal misconduct---Bail, refusal of---Scope---Name of the accused transpired in the FIR with specific allegation of issuance of false birth certificate which was predominantly used by co-accused for cheating---Accused at the time of issuance of the certificate was posted as Secretary Union Council---Accused was also involved in two cases of similar nature which showed that he was a habitual offender---Prosecution witnesses had fully implicated the accused with the commission of the offence and had supported the version of the complainant in their statements under S.161, Cr.P.C.---Sufficient material was available on record to connect the accused with the alleged offence---Petition for grant of bail was dismissed, in circumstances.

Muhammad Shabbir v. The State 2020 YLR Note 22; Ali Sher v. The State 2014 MLD 591; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488; Ayaz Ahmed Khan v. The State PLD 2011 SC 171; Muhammad Nawaz v. The State PLD 2008 SC 438; Khalid Mehmood v. The State 2020 SCMR 434; Nisar Ahmed v. The State 2014 SCMR 27; Mohsin Ihsan v. The State 2017 PCr.LJ 397; Fawad Rehman v. The State 2017 YLR 1957; Muhammad Younas v. The State 2001 PCr.LJ 157; Hakim Hussain v. The State 2019 YLR 1362; Tariq Bashir v. The State PLD 1995 SC 34; Mustafa Ali v. The State 2014 PCr.LJ 1464; Abdul Wasay Soomro v. The State 2017 YLR Note 446; Government of Sindh v. Raees Farooq and others 1994 SCMR 1283; Muhammad Saleem Akhtar v. The State 2010 PCr.LJ 803; Muhammad Abid Farooq v. The State 2015 PCr.LJ 224; Muneer Ahmad Sheikh v. D.G. NAB, Karachi 2019 SCMR 1738; Adnan Prince v. The State PLD 2017 SC 147 and Hazoor Bux Naeem Shaikh v. The State SBLR 2014 Sindh 460 distinguished.

Akhlaq Hussain Kayani v. Zafar Iqbal Kayani and others 2010 SCMR 1835; Seema Fareed and others v. The State and others 2008 SCMR 839; Muhammad Aslam v. The State and others 2017 SCMR 390; Muhammad Akbar v. The State and Maulvi Muhammad Yasin Khan PLD 1968 SC 281; Shahzad Ahmed v. The State through F.I.A. Islamabad 2010 SCMR 1221; The State/ANF v. Aleem Haider 2015 SCMR 133; Israr Ahmed v. The State 2018 MLD 1142; Zaigham Ashraf v. The State and others 2016 SCMR 18; Subhan Khan v. The State 2002 SCMR 1797; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Muhammad Ilyas and others v. The State and others 2019 MLD 169; Tariq Bashir and others v. The State PLD 1995 SC 34; Muhammad Ismail v. Muhammad Rafique another PLD 1989 SC 585; Manzoor and others v. The State PLD 1972 SC 81; The State v. Shah Sawar 1969 SCMR 151; Jamaluddin v. The State 1985 SCMR 1949; Muhammad Haseeb Khan and another v. The State through FIA CBC, Karachi 2012 PCr.LJ 1; Mst. Parveen Akhtar v. The State and others 2002 SCMR 1886; Asmat Ullah Khan v. Bazi Khan and another PLD 1988 SC 621; Muhammad Abbasi v. The State and another 2011 SCMR 1606; Arbab Ali v. Khamiso and others 1985 SCMR 195; Shahzaman and others v. The State another PLD 1994 SC 65; Mst. Bashiran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83; Ibrahim v. Hayat Gul and others 1985 SCMR 382; The State v. Rashid Ahmad and another 1988 SCMR 1129; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Mst. Sughran Bibi v. The State PLD 2018 SC 595; Malik Din v. Chairman National Accountability Bureau 2019 SCMR 372; Ghulam Rasool and others v. Noor Muhammad and others 2017 SCMR 81; Commissioner of Income Tax/Wealth Tax, Peshawar v. Haroon Bilour and others 2008 SCMR 510; Amir v. The State PLD 1972 SC 277; Ghulam Farooq Channa v. Special Judge ACE (CENTRAL-I) PLD 2020 SC 293; Mukaram v. The State and another 2020 SCMR 956 and Sami Ullah and another v. Laiq Zada and another 2020 SCMR 1115 ref.

Shameel Ahmed v. The State 2009 SCMR 174 and Mehmood Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 rel.

Shaukat Hayat for Applicant.

Abid S. Zuberi for the Complainant.

Ms. Durdana Tanveer, Assistant Attorney General for Pakistan along with Inspector Stephen, FIA.

2022 M L D 796

[Sindh]

Before Mohammad Karim Khan Agha and Muhammad Saleem Jessar, JJ

AKHTAR ZARIN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.215 of 2014, decided on 27th February, 2020.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Lodging of FIR---Promptness---Prosecution case was that on spy information, police party signalled the car of accused to stop, which led the culprits in the car to firing which hit the informer, police returned fire in self-defence, due to which, tyres of the car burst and stopped and accused was arrested---Arms, ammunition and 80 kilograms charas were recovered from secret cavities made in different parts of the car and inside the mudguards made with aluminium---Record showed that the FIR was filed promptly keeping in view the encounter, the need to take the injured to hospital, the time taken to search and weigh the drugs and as such any slight delay in lodging the FIR had been fully explained---Police had no time to cook up a false case against the accused who in any event was arrested on the spot by his own admission.

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

----S.9(c)---Criminal Procedure Code (V of 1898), S. 342---Possession of narcotics---Appreciation of evidence---Defence plea---Scope---Prosecution case was that on spy information, police party signalled the car of accused to stop, which led the culprits in the car to firing which hit the informer, police returned fire in self-defence, due to which, tyres of the car burst and stopped and accused was arrested---Arms, ammunition and 80 kilograms charas were recovered from secret cavities of the car, made in different parts of the car and inside the mudguards made with aluminium---Record showed that the arrest and recovery was made on the spot and the accused was caught red handed with the narcotics by the police---Accused had also admitted his presence at the spot---Accused had claimed that the police had falsely implicated him since his wife had filed a case against the Investigating Officer---Said defence plea was not believable for the reason that if the Investigating Officer wanted to fix the accused, they would have fixed his wife instead as she was the one who filed the complaint and not the accused---Wife of accused did not come as a defence witness to support that position nor did he exhibit any document showing that the wife of accused had made any complaint against the Investigating Officer---Circumstances established that prosecution had proved its case against the accused---Appeal against conviction was dismissed, in circumstances.

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

----S.9(c)---Criminal Procedure Code (V of 1898), S. 342---Possession of narcotics---Appreciation of evidence---Defence plea---Scope---Prosecution case was that on spy information, police party signalled the car of accused to stop, which led the culprits in the car to firing which hit the informer, police returned fire in self-defence, due to which, tyres of the car burst and stopped and accused was arrested---Arms, ammunition and 80 kilograms charas were recovered from secret cavities of the car, made in different parts of the car and inside the mudguards made with aluminium---Evidence of the complainant was corroborated in all material respects by a witness, who was an independent witness, who was behind the accused car at the toll plaza and acted as mashir of arrest and recovery and had no axe to grind with the accused and had no reason whatsoever to falsely implicate the accused in that case---Said witness was not a chance witness as he was travelling and was stuck behind the accused vehicle at the toll plaza, thus there was no reason to disbelieve said witness---Even the informer who was present with the Police party and who pointed out the accused's vehicle was shot and killed during the operation which showed that the police had gone to the specific place as mentioned by the informer---No major contradictions in the evidence of the witnesses was found---Most significantly the narcotics were recovered from secret cavities in the car which was owned by the accused as admitted in his statement under S. 342, Cr.P.C and he was driving at the time of the arrest and recovery---Circumstances suggested that it would be extremely difficult to foist such a large amount of charas being 80 kilograms and the fact that it was all hidden in secret cavities in a car owned and driven by the accused, which pointed to his actual knowledge of the narcotics and his guilt for the offence as charged---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---Circumstances established that prosecution had proved its case against the accused---Appeal against conviction was dismissed, in circumstances.

Ikramullah v. The State 2015 SCMR 1002; State through Regional Director ANF Peshawar v. Sohail Khan 2019 SCMR 1288; Shah Muhammad v. The State 2012 SCMR 1276; Salah-ud-Din v. The State 2010 SCMR 1962; Mian Muhammad Latif and 2 others v. Muhammad Aslam Nagi, Chairman Banking Tribunal Lahore and another 2002 CLD 923; Ghulam Muhammad v. Member (Judicial-III), Board of Revenue Punjab, Lahore 2005 CLC 1512; Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar PLD 2009 SC 39; Gul Badshah v. The State 2011 SCMR 984; Arshad Hussain v. The State 2011 SCMR 1400 and Begum Nusrat Ali Gonda v. Federation of Pakistan and others PLD 2013 SC 829 ref.

Nadir Khan v. State 1998 SCMR 1899 rel.

(d) Criminal trial---

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

Zakir Khan v. State 1995 SCMR 1793 rel.

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

----Ss.9(c) & 29---Possession of narcotics---Appreciation of evidence---Prosecution case was that 80 kilograms charas was recovered from secret cavities of the car of accused, made in different parts of the car and inside the mudguards made with aluminium---Record showed that car was recovered along with its key and the narcotics---Under S. 29 Control of Narcotic Substances Act, 1997, once the recovery had been proven as in the present case, the onus would shift to the accused to show his innocence in that at least he had no knowledge of the narcotics---Accused had not been able to do so in the case---Appeal against conviction was dismissed, in circumstances.

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

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

----S.9(c)----Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Delay in sending samples of contraband for chemical analysis---Effect---Samples were sent for chemical analysis with a delay of six days, however, the provisions governing such rules were directory and not mandatory and such chemical report was positive and complied with all relevant legal requirements and protocols as was apparent from the report itself---Appeal against conviction was dismissed, in circumstances.

Ajab Khan Khattak for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

2022 M L D 811

[Sindh]

Before Muhammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

SIKANDAR ALI QURESHI---Petitioner

Versus

CHAIRMAN NAB and another---Respondents

C.P. No.D-5564 of 2017, decided on 9th October, 2020.

Criminal Procedure Code (V of 1898)---

----S.497(5)---National Accountability Ordinance (XVIII of 1999), S.9---Corruption and corrupt practices---Bail, cancellation of---Scope---High Court on receipt of reference from the Accountability Court regarding conduct of the accused who was on pre-arrest bail, converted the same into an application to re-call the pre-arrest bail---High Court observed that the accused, who had been extended the extraordinary concession of pre-arrest bail, had refused to proceed with his cross-examination in the face of direct orders of the High Court to proceed with the matter on a day-to-day basis and the order of the Trial Court to proceed with his cross-examination when there was no stay in the field and no stay on proceedings was applied for preventing the matter from proceeding---Accused had misused/abused the concession of bail granted to him by the High Court, which was recalled and he was directed to be taken into custody, in circumstances.

Rehman Ghous for Petitioner.

2022 M L D 827

[Sindh]

Before Muhammad Iqbal Kalhoro and Abdul Mobeen Lakho, JJ

YASSER-UL-HAQ EFFENDI and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.P. No.D-91 of 2022, decided on 11th February, 2022.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a) & 4 [as amended by National Accountability (Second Amendment) Ordinance (XXVII of 2019)]---Jurisdiction of National Accountability Bureau (NAB)---Scope---Petitioners were accused facing trial under National Accountability Ordinance, 1999, who sought transfer of their case to Special Judge Customs and Taxation having jurisdiction to try cases of taxation---Plea raised by petitioners was that they were not public servants and matter pertained to taxation---Validity---Petitioners by their alleged act were not stated to have evaded tax liability by concealing their incomes etc. but had exploited state of affairs i.e. fuel subsidized due to its only use for defence and aviation purpose by selling it as unsubsidized fuel in open market at a higher price to unauthorized entities and raking in thus illegal profits, breach of trust which was an offence under Ss.9(a) (x) & (ix) of National Accountability Ordinance, 1999---Fact that petitioners or any of the accused were not public servants in view of manifest phraseology of Ss.4 & 9 of National Accountability Ordinance, 1999, stipulating holder of a public office besides any other person to be within its purview likewise was sufficient to cast off any misgivings about its applicability to petitioners---Consequence of the same, if any, was not likely to stoke transfer of case from one Court to the other and was not helpful to petitioners---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

PLD 1991 SC 344 ref.

Makhdoom Ali Khan for Petitioner.

Shahbaz Sahotra, Special Prosecutor, NAB and Irfan Ahmed Memon, DAG for Respondents.

2022 M L D 840

[Sindh]

Before Nazar Akbar and Muhammad Faisal Kamal Alam, JJ

ZABARDAST KHAN MAHAR---Petitioner

Versus

The FEDERATION OF PAKISTAN through Chairman NAB, Islamabad and another---Respondents

C.P. No.D-2186 of 2021, decided on 5th April, 2021.

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

----S.9---Constitution of Pakistan, Art.199---Corruption and corrupt practices---Bail---Reduction of surety amount---Pleadings to be signed---Verification of pleadings---Scope---Petitioner sought reduction of surety amount which was fixed by the Division Bench of High Court while allowing the petitioner's request for bail---Validity---Petition was not signed and supported with the affidavit of petitioner---Vakalatnama could not be treated as an affidavit of petitioner---Affidavit of facts about the financial status of petitioner that whether he was capable of submitting the surety or not, could not be sworn by lawyer engaged by him after obtaining the consent order for submitting the pay order equivalent to the alleged misappropriation---If the petitioner was aggrieved by any observation of the Bench, he should have filed petition for leave to appeal before the Supreme Court---Constitutional petition was dismissed.

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

----O. VI, R. 15---Verification of pleadings---Scope---Counsel cannot swear affidavit of facts relating to the circumstances of their client in which need for an order from the court of law was felt by their client.

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

----O.VI, R.15---Verification of pleadings---Verification by counsel---Effect---Held, it is the litigant who has to swear an affidavit that the accompanying petition has been filed by his counsel under his instructions---It cannot be vice versa.

Waqar Alam Abbasi for Petitioner.

2022 M L D 874

[Sindh]

Before Adnan-ul-Karim Memon, J

MUHAMMAD ZAKIR---Applicant

Versus

MUHAMMAD FAISAL and 2 others---Respondents

Civil Revision Application No.135 of 2019, decided on 7th January, 2022.

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

----Ss.12, 39 & 42----Limitation Act (IX of 1908), Art.113---Agreement to sell---Limitation---Payment of part consideration---Admission---Out of total consideration some amount was paid by respondent and part payment was agreed to be paid as per the terms of agreement---Respondent filed suit for declaration, specific performance and permanent injunction---Petitioner filed suit for cancellation of the sale agreement---Trial Court had decreed the respondent's suit and dismissed the suit filed by petitioner---Appellate Court also dismissed the appeal filed by petitioner---Petitioner contended that the Appellate Court had not passed the speaking judgment; that Courts below had grossly ignored the case-law; that time was the essence of the contract; that respondent failed to pay balance sale consideration up to the specified date/time/place; that he also failed to deposit the remaining consideration on the first date of hearing of his suit; and that Courts below failed to consider the limitation in filing the suit---Validity---Both the courts below had dealt with petitioner's issue very elaborately, thus could not be lightly interfered with---Petitioner had failed to point out any perversity/illegality in impugned judgments/decrees passed by Courts below---Petitioner agitated the grounds at the revision stage, which had already been exhausted by him and properly adjudicated by the competent forums---Petitioner's plea as to respondent's suit been time-barred, had also been taken care of by Appellate Court---Date of performance was effected from the execution of the sale agreement, while in his cross-examination, petitioner had admitted that no time limit was fixed for performance of payment of balance amount---Balance amount was to be paid at the time of execution of sale deed---Petitioner also admitted his thumb impression over the payment receipt which factum prima facie showed his admission of receiving certain amounts---Revision petition was dismissed accordingly.

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

----S.115---Revisional jurisdiction---Discretion of Courts---Scope---Revision is a matter between the higher and subordinate courts, and the right to move an application in that respect is merely a privilege---Provisions of S.115 of Civil Procedure Code, 1908 have been divided into two parts: the first part enumerates the conditions under which the Court can interfere; and second part specifies the type of orders which are susceptible to Revision---Jurisdiction under S.115 of Civil Procedure Code, 1908 is discretionary.

Syed Ehsan Raza for Applicant.

Syed Khurram Kamal for Respondent No.1.

2022 M L D 950

[Sindh]

Before Abdul Maalik Gaddi and Kausar Sultana Hussain, JJ

SHAHZAIB---Appellant

Versus

The STATE---Respondent

Special Anti-Terrorism Appeals Nos.300 and 301 of 2019, decided on 30th July, 2020.

(a) Criminal trial---

----Principle---Each criminal case had its own peculiar facts and circumstances and the same seldom coincided with other on salient features.

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

----Ss.324 & 353---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused was standing in suspicious condition, when police tried to apprehend him, he made firing upon police party, in retaliation, police also made firing, during cross firing accused received fire arm injury and was apprehended---Record showed that no police person during that encounter had received any fire arm injury despite the fact that alleged encounter took place with sophisticated weapons for considerable time---Even no bullet hit to the police mobile---Said fact created doubt in the prosecution case.

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

----Ss.324 & 353---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S.23(1)(a)---Criminal Procedure Code (V of 1898), S.103---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Non-association of private witnesses---Effect---Prosecution case was that the accused was standing in suspicious condition, when police tried to apprehend him, he made firing upon police party, in retaliation, police also made firing, during cross firing accused received fire arm injury and was apprehended---Record showed that it was the case of spy information---Despite that fact, complainant did not bother to associate with him any independent person of the locality from the place of information or from the place of incident---Record showed that place of incident was a thickly populated area, which was surrounded by shops, houses, mosque and many people were available there---No plausible explanation was offered by the prosecution as to why police did not associate any independent person from the place of information and incident to witness the arrest and recovery proceedings---Provision of S.103, Cr.P.C., was mandatory in nature and could not be ignored without any proper justification.

(d) Criminal trial---

----Witness---Police Officials as witnesses---Reliance---Scope---Evidence of police officials were as good as the other citizens---If the whole case of the prosecution hinged upon the evidence of Police Officials, then, their evidence was to be examined minutely.

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

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

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

----Ss.324 & 353---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S.23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Contradictions on material particulars of the case---Scope---Prosecution case was that the accused was standing in suspicious condition, when police tried to apprehend him, he made firing upon police party, in retaliation, police also made firing, during cross firing accused received fire arm injury and was apprehended---Record showed that there were number of contradictions on material particulars of the case---Memo of arrest and recovery revealed that it was prepared at about 08:10 p.m., while contradicting the fact that Medico Legal Officer in his examination-in-chief had deposed that on the relevant day, he received the injured accused at about O8:00 p.m. as brought by the complainant for his examination, treatment and certificate---Question was as to how the accused was brought before Medico Legal Officer prior to the incident or arrest of accused---Said fact also gave serious jolt to the prosecution case---Memo of arrest and recovery and FIR, revealed that one 30 bore pistol without number loaded with three live rounds was allegedly recovered from the accused at the time of his arrest, but Forensic Science Laboratory Report available on record showed that the said pistol was rubbed number---Said fact also showed that perhaps the incident had not taken place in a fashion as stated in FIR or otherwise and therefore, false implication of the accused in that case with due deliberation and consultation could not be ruled out---Evidence of prosecution witnesses did not find to be trustworthy and confidence inspiring which was contradictory with each other on material particulars of the case---Evidence of said witnesses could not be safely relied upon for maintaining the conviction, in circumstances---Appeal against conviction was allowed, in circumstances.

Zeeshan @ Shani v. The State 2012 SCMR 428 rel.

Raja Masood Ahmed Qazi, Obaidullah, Jawaid Ahmed and Abdul Rasheed Nizamani for Appellant (in both appeals).

Hussain Bux Baloch, Additional Prosecutor General, Sindh for the State.

2022 M L D 975

[Sindh]

Before Omar Sial, J

Syed WAQAS HASSAN RIZVI and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.1542 of 2020, decided on 7th December, 2020.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss. 354, 337-J, 322, 506 & 34---Assault or criminal force to woman with intent to outrage her modesty, causing hurt by means of a poison, qatl-bis-sabab, criminal intimidation and common intention---Pre-arrest bail, grant of---Mala fide of complainant---Scope---Accused persons were alleged to have been the cause of the suicide of deceased---Communication in the shape of messages prima facie reflected an unhappy and obsessive relationship between the lady and one of the accused persons---Forensic Laboratory to whom the blood samples collected from the scene of incident were sent opined that no narcotic or poisonous substances were detected in the same---Offence under S.322, P.P.C. was punishable by the payment of diyat---Refusal of the complainant to initially lodge FIR; declining to permit a post-mortem; stating that the future course of action would be determined after consultation---Apparent revulsion, hostility and abhorrence of the deceased person's family towards the accused persons, based on WhatsApp messages; tinges of mala fide on the part of the complainant could not be conclusively ruled out at preliminary stage---Accused persons were admitted to pre-arrest bail, in circumstances.

Aamir Mansoob Qureshi and Iftikhar Ahmed Shah for Applicants.

Abbas Rasheed Razvi along with Nabeel Ahmed Khan for the Complainant.

2022 M L D 986

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh, J

WADAL GORAR---Appellant

Versus

GUL SHER and 4 others---Respondents

Criminal Acquittal Appeal No.S-30 of 2019, decided on 25th October, 2019.

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

----S.395---Dacoity---Appreciation of evidence---Benefit of doubt---Contradictory statements---Source of light, non-availability of---Enmity between complainant and accused---Effect---Appellant/complainant assailed the acquittal of accused persons from the charge framed under S.395, P.P.C.---Complainant had not stated that a ladder was taken away by the culprits at the time of the incident, but the Investigating Officer had allegedly recovered some ladder on the pointation of one of the accused persons and it was not even produced before the court as the case property---Investigating Officer had deposed that one of the accused persons had got recovered the stolen articles whereas prosecution witness in his examination-in-chief had deposed that the Station House Officer (SHO) had called him and others on phone to come to the police station as the police had recovered some stolen articles---Complainant had identified the accused persons in a solar light but in the mashirnama of inspection of place of occurrence availability of solar light was not mentioned---Complainant had admitted that he had a dispute with the accused persons over harap and money allegedly borrowed by one of them---Material and glaring contradictions, dishonest and deliberate improvements and admissions adverse to the prosecution case made by prosecution witnesses during the trial had rendered the prosecution case doubtful---Trial court had rightly acquitted the accused persons by extending benefit of doubt which did not call for any interference---Appeal against acquittal was dismissed, in circumstances.

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

----S.417---Appeal against acquittal---Scope---Presumption of double innocence is attached to the acquittal judgment, which normally does not call for interference unless the judgment or order is found to be arbitrary, capricious, fanciful and against the record.

Ahsan Ahmed Qureshi for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

2022 M L D 998

[Sindh]

Before Aftab Ahmed Gorar, J

HAMDULLAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.569 of 2021, decided on 13th August, 2021.

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

----Ss.497 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25---Possession of narcotics---Bail, refusal of---Search to be made in presence of witnesses---Scope---Accused along with co-accused went to the GPO (General Post Office) to book the parcels containing contraband stuff where they were arrested on the indication of GPO staff---Accused had not come to GPO in good faith with co-accused being co-villager---No enmity, ill-will or grudge was alleged against the prosecution witnesses; on the contrary, sufficient material was brought by the prosecution on record---So far as the contention of accused that recovery was not witnessed by persons from public, High Court observed that S.25 of Control of Narcotic Substances Act, 1997, excluded the application of S. 103, Cr.P.C---Accused was not entitled to the grant of bail---Bail application was dismissed, in circumstances.

Muhammad Ullah v. The State 2009 SCMR 954; Abdul Raheem v. The State 2019 MLD 1929; Tahir Khan and another v. The State 2019 MLD 361; Jamalud Din alias Zubair Khan v. The State 2012 SCMR 573; Akhtar v. The State 2014 YLR 772; Shahid v. The State 2013 YLR 1840; Asghar Ali v. The State 2018 MLD 129; Daud v. The State PLJ 2019 Cr.C.(Note) 100; Hakeem Jamali v. The State 2009 PCr.LJ 695; Bahadar Khan v. The State 2000 SCMR 677 and Hussain Ullah v. State and another 2019 SCMR 1651 distinguished.

The State v. Javed Khan 2010 SCMR 1989 rel.

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

----S.9(c)---Criminal Procedure Code (V of 1898), S. 497---Possession of narcotics---Bail---Scope---Control of Narcotic Substances Act, 1997, consolidates and amends the law relating to narcotic drugs and psychotropic substances---Act controls and prohibits the possession, processing and trafficking of these substances---It also lays progressive punishments for narcotic offences, Act provides for the constitution of Special Courts having exclusive jurisdiction to try narcotic offences---Section 51 of the Control of Narcotic Substances Act, 1997, provides that bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death---When the quantity of narcotics exceeds one kilogram, the case falls in clause (c) of S.9 of the Control of Narcotic Substances Act, 1997, for which death penalty or imprisonment for life has been provided---Discretion under S.497, Cr.P.C., can also not be exercised with regard to offences punishable with death or imprisonment for life unless the Court at the very outset is satisfied that such a charge appears to be false or groundless.

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

----S.497---Bail---Tentative assessment---Scope---Court for deciding the bail application has to observe the tentative assessment and deeper appreciation of evidence is not required and it will not be fair to go into discussion about the merits of the case.

Saleh Muhammad v. The State PLD 1986 SC 211 and The State v. Zubair and 4 others PLD 1986 SC 163 ref.

Khalid Rashid for Applicant.

Ms. Firdos Faridi, Spl. Prosecutor Customs for the State.

2022 M L D 1004

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

SHAKEEL AHMED SAHITO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-203 of 2020, decided on 12th October, 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, refusal of---Scope---Accused was alleged to have dishonestly issued a cheque which was dishonoured on its presentation---Cheque of a huge amount was issued by the accused knowingly that funds were not available in his Bank account thus, there was, prima facie element of dishonesty on the part of the accused---Accused was linked with the commission of the offence, therefore, he was not entitled to the concession of bail---Petition for grant of pre-arrest bail was dismissed, in circumstances.

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

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

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

----S.489-F---Dishonestly issuing a cheque---Ingredients detailed.

Following are the ingredients necessary to constitute an offence under section 489-F, P.P.C.;

i) cheque was issued with dishonest intention;

ii) towards re-payment of a loan or fulfilment of an obligation;

iii) same was dishonoured on presentation.

Manzoor Ali Chohan for Applicant.

Deedar Ali M. Chohan for the Complainant.

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

2022 M L D 1034

[Sindh (Hyderabad Bench)]

Before Kausar Sultana Hussain, J

Mst. LAILAN KHATOON and another---Appellants

Versus

IMRAN ALI and others---Respondents

M.A. No.13 of 2020, decided on 28th May, 2021.

Succession Act (XXXIX of 1925)---

----Ss.372 & 383---Federal Employees' Benevolent Fund and Group Insurance Act (II of 1969), S.2(5)---Succession certificate, issuance of---Scope---Dispute between parties was with regard to amounts to be received by legal heirs and family members of deceased---Validity---Widow and nominees of deceased (employee of WAPDA who died during service) were entitled for those funds of deceased which the deceased could not have claimed in his life time i.e. Gratuity, Group Life Insurance, Family Pension, WAPDA Welfare Fund and ex-gratia---Employer did not need Succession Certificate for releasing such amounts to the family as per S.2(5) of Federal Employees' Benevolent Fund and Group Insurance Act, 1969---For release of salary dues and lump sum leave encashment, Succession Certificate was to be issued by Court---Any other grant / package or plot especially and specifically meant for family of deceased government servant was also to be dealt with in such manner and was to be disbursed to family of deceased as per definition of family as envisaged in S.2(5) of Federal Employees' Benevolent Fund and Group Insurance Act, 1969---High Court modified Succession Certificate granted by Trial Court---Appeal was allowed accordingly.

PLD 1991 SC 731; 2018 SCMR 762; 1996 SCMR 856; 2005 YLR 1096 and 1985 CLC 1411 ref.

Inderyas Barkat for Appellants.

Muhammad Zakriya for Respondents Nos.1 to 9.

Naeemuddin Sahito for Respondent No.10.

2022 M L D 1065

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD YAQOOB---Applicant

Versus

The STATE---Respondent

Criminal Bail Applications Nos.1618, 1619, 1843, 1876 of 2020, decided on 24th August, 2021.

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

----S.498---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Pre-arrest bail, refusal of---Scope---Accused sought pre-arrest bail in several FIRs registered against him under S.489-F, P.P.C.---Cheques were issued by the accused for fulfilment of business obligations with the knowledge that sufficient amount was not available in the account to honour the cheques and thus there was prima facie an element of dishonesty on the part of the accused---Provisions of S.489-F, P.P.C., were squarely attracted in the case---Complainant could not be bound down to seek his remedy by approaching the civil court through a recovery suit when there was no legal embargo on him to press into service the penal provisions against the delinquent through the registration of an FIR---Applications for grant of pre-arrest bail were dismissed, in circumstances.

Rana Abdul Khaliq v. The State and others 2019 SCMR 1129; Malik Nazir Ahmed v. Syed Shamas-ul-Abbas and others PLD 2016 SC 171; Khusro Mirza v. The State 2020 YLR 1239; Amin Iqbal v. The State 2013 YLR 2428; Nasir Ahmed v. The State 2010 YLR 2179 and Mukhtar Ahmed v. The State and others 2016 SCMR 2064 ref.

Mian Allah Ditta v. The State and others 2013 SCMR 51; Muhammad Ismail v. The State 2020 MLD 839; Jehanzeb Khan v. The State and others 2020 SCMR 1268; Abdul Rasheed and another v. The State 2019 PCr.LJ 123; Syed Hassan Ali Shah v. The State and another 2019 PCr.LJ Note 159; Rashid Ali v. The State 2020 PCr.LJ Note 91; Abdul Ghafoor Gondal v. The State and another 2020 SCMR 861 and Criminal Bail Application No.329 of 2019 distinguished.

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

----S.497---Bail---Scope---Mere fact that the offence for which the accused is charged does not attract the prohibitory limb of S.497, Cr.P.C., cannot per se make him entitled to the concession of bail---Grant of bail in such like cases is not a rule of universal application as each case merits decision on the basis of its own facts and circumstances.

Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 and Shameel Ahmed v. The State 2009 SCMR 174 ref.

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

----S.497---Bail---Tentative assessment---Scope---Court, for deciding the bail application, has to observe the tentative assessment and deeper appreciation of evidence is not required.

Saleh Muhammad v. The State PLD 1986 SC 211 and The State v. Zubair and 4 others PLD 1986 SC 163 ref.

Umair Bachani along with Applicant in all bail applications for Applicant.

Muhammad Noman Jamali for the Complainant (in Criminal Bail Applications Nos.1618, 1843 and 1876 of 2020).

Samiullah Soomro for the Complainant (in Criminal Bail Application No.1619 of 2020).

Siraj Ali Chandio, Addl. P.G. Sindh for the State.

Date of hearing: 24th August, 2021.

Since the applicant and the offence is same in all the captioned bail applications i.e. Criminal Bail Applications Nos. 1618, 1619, 1843 and 1876 of 2020 are taken together. In Criminal Bail Application Nos. 1618, 1843 and 1876/2020 the complainant is Gul Hassan Jan while in Criminal Bail Application No.1619/2020 the complainant is one Qurban Ali. The complainants have lodged the FIRs against the applicant Muhammad Yaqoob son of Muhammad Hussain under section 489-F, P.P.C., detail whereof is as under:-

In Criminal Bail Application No. 1618 of 2020 FIR No.510/2020 at Police Station Gizri, Karachi

In Criminal Bail Application No. 1619 of 2020, FIR No.557/2020 at Police Station Aziz Bhatti, Karachi

In Criminal Bail Application No. 1843 of 2020 FIR No.392/2020 at Police Station Clifton, Karachi.

In Criminal Bail Application No. 1876 of 2020 FIR No.382/2020 at Police Station Malir Cantonment, Karachi.

1. Applicant Muhammad Yaqoob son of Muhammad Hussain booked in above FIRs, all registered under section 489-F, P.P.C., on refusal from the trial court, has approached this Court by filing the captioned applications for pre-arrest bail.

2. Record reflects that applicant was admitted to interim pre-arrest bail vide orders dated 22.10.2020, 30.11.2020 and 04.12.2020 passed in captioned bail applications and today these are fixed for confirmation or otherwise.

3. Mr. Umair Bachani, Advocate representing the applicant in all bail applications submits that applicant is the victim of the circumstances and has falsely been implicated in this case by the complainant with mala fide intention and ulterior motives. Learned counsel for the applicant contended that applicant and complainant entered into a sale agreement of land and there was no other relationship between them. Learned counsel further contended that there is no partnership agreement between the applicant and complainant and the some is a fake agreement on the basis of which the applicant has been involved in this case. He submitted that there is unexplained delay in lodging the FIRs. He further submitted that alleged offence does not fall within prohibitory clause of section 497 Cr.P.C. Learned counsel for the applicant contended that applicant is regularly appearing before the trial court. Lastly he prayed that interim pre-arrest bail earlier granted to the applicant may be confirmed. To support his contentions, learned counsel for applicant has relied upon the cases of Mian Allah Ditta v. The State and others (2013 SCMR 51), Muhammad Ismail v. The State (2020 MLD 839), Jehanzeb Khan v. The State and others (2020 SCMR 1268), Abdul Rasheed and another v. The State (2019 PCr.LJ 123), Syed Hassan Ali Shah v. The State and another (2019 PCr.LJ Note 159), Rashid Ali v. The State (2020 PCr.LJ Note 91), Abdul Ghafoor Gondal v. The State and another (2020 SCMR 861) and an unreported order of this Court passed in Criminal Bail Application No. 329 of 2019.

4. Mr. Muhammad Noman Jamali, Advocate representing the complainant in Criminal Bail Application Nos. 1618, 1843 & 1876 of 2020 opposed the confirmation of bail on the ground that the applicant is not attending the trial court. He submitted that bail application earlier filed by the applicant before the learned trial court was dismissed on the ground of non-prosecution. Learned counsel for the complainant further submitted that applicant is habitual offender of committing the offences of such nature. He is involved in number of like cases hence applicant is not entitled for concession of bail. To support his submissions, he has relied upon the cases reported as Rana Abdul Khaliq v. The State and others (2019 SCMR 1129), Malik Nazir Ahmed v. Syed Shamas-ul-Abbas and others (PLD 2016 SC 171), Khusro Mirza v. The State (2020 YLR 1239), Amin Iqbal v. The State (2013 YLR 2428), Nasir Ahmed v. The State (2010 YLR 2179) and the case of Mukhtar Ahmed v. The State and others (2016 SCMR 2064).

5. Mr. Samiullah Soomro, Advocate representing the complainant in Criminal Bail Application No. 1619 of 2020 as well as learned Additional Prosecutor General, Sindh while adopting the submissions of Mr. Jamali added that the applicant has dishonestly issued the cheques having knowledge that no amount is available in the account hence he raised objection to the confirmation of pre-arrest bail.

6. I have given my deep thought to the arguments of learned counsel for the parties and perused the available record.

7. Admittedly the earlier bail application filed before the trial court was dismissed for non-prosecution which shows that the conduct of applicant in appearing and pursuing the matter was not good. Further, tentative assessment of the record reflects that there is business relations between the applicant and complainant and in this regard the applicant has given cheques for business obligations to the complainant, which on their presentation before the concerned bank, were dishonoured. Being account holder the applicant was in full knowledge that how much amount is lying in the account. It may be advantageous to mention here that to constitute an offence under section 489-F, P.P.C., the following ingredients have to be there:

(i) Cheque issued with dishonest intention.

(ii) Towards repayment of a loan or fulfillment of an obligation and

(iii) The cheque is dishonoured on presentation.

1. In the present case, the cheques were issued by the applicant for fulfillment of business obligations with the knowledge that sufficient amount is not available in the account to honour the cheques and thus there was prima facie the element of dishonesty on the part of the applicant and that the cheques were dishonoured at the bank's counter are now part of the record of the case. Thus on all fours, the provisions of section 489-F, P.P.C., are squarely attracted in the present case. Moreover, the complainant cannot be bound down to seek his remedy by approaching the civil court through a recovery suit when there is no legal embargo on him not to press into service the penal provisions against the delinquent through the registration of an FIR.

2. The mere fact that the offence for which the applicant is charged does not attract the prohibitory limb of section 497, Cr.P.C., cannot per se make him entitled to the concession of bail. Grant of bail in such like cases is not a rule of universal application as each case merits decision on the basis of its own facts and circumstances. Reliance in this respect may advantageously be placed on the cases of Muhammad Siddique v. Imtiaz Begum and 2 others (2002 SCMR 442) and Shameel Ahmed v. The State (2009 SCMR 174).

3. It may not be out of place to mention here that the issuance of cheques which are in turn dishonoured has taken our society by storm so much so that such instrument is looked upon by the beneficiary with a degree of doubt and skepticism till it is honoured by the concerned bank. Such practice has also eroded the mutual trust of the general public and there are instances when people shy away from accepting cheques even from trustworthy persons. Moreover, no one is supposed to commit the financial murder of another member of the society. Even otherwise, it is settled that for deciding the bail application the court has to observe the tentative assessment and deeper appreciation of evidence is not required and it will not be fair to go into discussion about the merits of the case at this juncture. In this respect reliance is being placed on the cases of Saleh Muhammad v. The State (PLD 1986 Supreme Court 211) and The State v. Zubair and 4 others (PLD 1986 Supreme Court 163).

2022 M L D 1078

[Sindh]

Before Khadim Hussain M. Shaikh, J

ZIA JAMLI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-291 of 2019, decided on 17th June, 2019.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.365-B, 452, 337-H, 148 & 149---Kidnapping, abducting or inducing woman to compel for marriage, hurt, rioting, armed with deadly weapon---Bail, grant of---Further inquiry---Scope---Accused sought post-arrest bail emanating from an FIR registered for offences under Ss.365-B, 452, 337-H, 148 & 149, P.P.C.---Complainant and his daughter had allegedly stayed as guest in a house where the incident was shown to have taken place but neither their host was cited as witness nor was his statement under S.161, Cr.P.C., recorded before the Investigating Officer---Complainant, in his FIR, had stated that his daughter was abducted by accused for the purpose of committing zina but the alleged abductee in her statement under S.164, Cr.P.C., had not levelled allegation of zina against any of the accused and even she had not stated that she was abducted for the purpose of zina---Alleged abductee was not recovered from the accused rather she had voluntarily appeared before the police---Case against accused required further enquiry into his guilt and his case fell within the ambit of subsection (2) of S.497, Cr.P.C.---Petition for grant of bail was allowed, in circumstances.

Muhammad Younas and another v. Muhammad Hanif Khan and another 2014 YLR 1161 and Farman Ali v. Fazal Rabi and another 2015 YLR 1777 distinguished.

Safdar v. The State and another 2011 YLR 3075; Khuda Bukhsh and 4 others v. The State 2014 YLR 814; Mst. Shameem Akhtar v. The State 2010 PCr.LJ 135 and Shah Muhammad alias Baboo and another v. The State 2014 YLR 2417 ref.

Asif Ali Abdul Razak Soomro for Applicant.

Ashfaque Hussain Abro for the Complainant.

Aitbar Ali Bullo, Deputy Prosecutor General.

2022 M L D 1088

[Sindh]

Before Aftab Ahmed Gorar, J

GHULAM RASOOL---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.449 of 2021, decided on 13th August, 2021.

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

----S.498---Penal Code (XLV of 1860), Ss. 324, 337-A(ii), 147, 148, 149, 114, 337-H(2) & 504---Attempt to commit qatl-i-amd, shajjah-i-mudihah, hurt by rash or negligent act, rioting, armed with deadly weapon, common object, abettor present when offence committed, intentional insult with intent to provoke breach of the peace---Pre-arrest bail, grant of---Further enquiry---Accused sought pre-arrest bail in an FIR registered under Ss. 324, 337-A(ii), 147, 148, 149, 114, 337-H(2) and 504, P.P.C.---Accused was admitted to pre-arrest bail on an earlier date and the matter was fixed for confirmation of the said order---No complaint of misuse of concession of bail or tampering the record was pointed out---Accused was regularly appearing in the case before the High Court as well as Trial Court, which fact was clear from the record---No motive was alleged against the accused for commission of the offence---Prima facie, case against accused appeared to be doubtful benefit of which would go to the accused---Case of accused was one of further inquiry---Interim pre-arrest bail granted to the accused was confirmed, in circumstances.

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

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

----S.497---Constitution of Pakistan, Art. 4---Bail---Object---Scope---Object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail---Object of bail is neither punitive nor preventive and therefore, deprivation of liberty must be considered a punishment, unless it may be required to ensure the presence of accused during trial---Punishment begins after conviction and not before it, as in criminal justice system every man is deemed to be innocent until duly found guilty---Purpose of putting the un-convicted persons in custody is nothing but to secure their attendance at the trial---Even otherwise, life and liberty of a citizen is very precious and guaranteed by Art.4 of the Constitution.

PLD 1989 SC 585 ref.

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

----S.497---Bail---Tentative assessment---Scope---Deeper appreciation of evidence and circumstances appearing in the case is not permitted and only tentative assessment is to be made, however, where accused satisfies the Court that there are reasonable grounds to believe that he is not guilty of such offence, then the Court must release him on bail.

Yar Muhammad v. The State and another 2004 YLR 2230 ref.

Manzoor Ahmed Panhwar for Applicant.

Talib Ali Memon, Assistant Prosecutor General Sindh.

2022 M L D 1109

[Sindh]

Before Aftab Ahmed Gorar, J

SHABANA KHAN ADVOCATE---Applicant

Versus

Major (Retd.) JEHANZEB ASLAM and 2 others---Respondents

Criminal Revision Application No.72 of 2019, decided on 12th February, 2020.

Illegal Dispossession Act (XI of 2005)---

----Ss.3 & 4---Criminal Procedure Code (V of 1898), S.265-K--- Prevention of illegal possession of property---Cognizance of offence---Power of court to acquit accused at any stage---Case registered upon complaint---Scope---Applicant assailed order passed by Trial Court whereby her application under S.265-K, Cr.P.C. for pre-mature acquittal was dismissed---Validity---Bare reading of S.265-K, Cr.P.C., revealed that it was not meant for cases registered upon complaint---Once cognizance was taken in terms of Ss.3 & 4 of Illegal Dispossession Act, 2005, the complaint could not be dismissed summarily---Dispute between the parties could not be resolved under S.265-K, Cr.P.C., by acquitting the accused person---Revision application was dismissed, in circumstances.

Tajammul H. Lodhi for Applicant.

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

2022 M L D 1120

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD AZEEM---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos.44, 45 and 56 of 2014, decided on 14th May, 2020.

Criminal Procedure Code (V of 1898)---

----S.514---Procedure on forfeiture of bond---Scope---Appellant, who was released on bail pending final decision in his appeal, did not attend a single hearing of the court for nearly two and a half years---Several notices to the surety were given under S.514, Cr.P.C., who neither produced the appellant nor gave a satisfactory explanation as to why his surety should not be forfeited---Surety was supposed to ensure that the person granted bail was produced before the court on each and every date of hearing---Such was a very serious obligation / responsibility to be undertaken by a surety and it was not to be taken lightly---Showing leniency to the surety would encourage people to act as surety who had no serious or genuine interest in ensuring the person granted bail appeared before the court knowing that there would be no consequences for them if the person on bail absconded---Surety bond was forfeited, in circumstance---Bail granted to the appellant was withdrawn/cancelled and he was ordered to be arrested and returned to prison custody to serve out his remaining sentence.

Ghulam Dastagir v. State PLD 2011 SC 116 rel.

Nasarullah Malik for Appellants.

Haji Habibullah Ghaffar for Surety.

2022 M L D 1125

[Sindh]

Before Aftab Ahmed Gorar, J

UMAIR YOUSUF---Applicant

Versus

The STATE---Respondent

Special Criminal Bail Application No.45 of 2021, decided on 13th September, 2021.

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

----S.497---Customs Act (IV of 1969), S. 97---Goods not to be taken out of warehouse except as provided by Customs Act, 1969---Bail, refusal of---Rule of consistency---Scope---Prosecution case was that the accused being owner of the warehouse, illegally removed the goods lying in the warehouse for gaining illegal/wrongful benefit---Goods that were illegally removed from the warehouse were cloth whereas the licence to the accused was provided for iron and steel products, tiles, medical items, chemicals and not for cloth---Use of warehouse for other than licensed products was also a misconduct on the part of accused---Accused was owner of the warehouse and it could not be said that he was not aware of the activities at the warehouse---Accused was not entitled for the concession of bail on the ground of rule of consistency as his case was different from that of the manager of the warehouse---Bail application was dismissed, in circumstances.

1983 SCMR 436; 1996 SCMR 1845; PLD 2009 SC 58; PLD 2018 SC 595; 1989 PCr.LJ 828; PLD 2011 Kar. 199; 2014 PCr.LJ 186; 2015 MLD 321; 1979 SCMR 9; 1980 SCMR 142; 1996 PCr.LJ 978; 2013 PCr.LJ 649; 2014 MLD 394; 2018 PCr.LJ N. 76; 2020 PCr.LJ N. 101; 2020 SCMR 285; Crl. Bail Application No. 429 of 2021; 2018 SCMR 772; 2021 SCMR 873 and 2014 PTD 1807 ref.

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

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

Saleh Muhammad v. The State PLD 1986 SC 211 and The State v. The Zubair and 4 others PLD 1986 SC 163 ref.

Ahmed Ali Hussain and Shumail Sikandar for Applicant.

Ashiq Ali Anwar Rana, Special Prosecutor Customs.

2022 M L D 1134

[Sindh]

Before Muhammad Karim Khan Agha and Khadim Hussain Tunio, JJ

WAQAR ZAKA---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.P. No.D-7146 of 2019, decided on 12th January, 2022.

Constitution of Pakistan---

----Arts.199 & 18---Constitutional petition---Freedom of trade business or profession---Crypto currency, legality of---Scope---Petitioner wants to open the business concerning crypto currency exchange in Pakistan---Committee was constituted to meet and decide whether it would be prudent to allow any kind of business in crypto currency in Pakistan keeping in view Art.18 of the Constitution, which is a fundamental right concerning the freedom of trade, business or profession---Committee, in the present case, has recommended a complete ban on all crypto currency and unauthorized operations of exchanges dealing in crypto currency---Committee is directed by the High Court to send a copy of the report to the Ministry of Finance and Ministry of Law, who shall consider the same at a joint meeting and shall reach a final decision whether or not crypto currency in any form is to be allowed in Pakistan and if so, what the regulatory framework would be of such business---Ministries shall submit their joint recommendations on the next date of hearing.

Petitioner present in persons.

Ms. Sima Kamil, Deputy Governor, SBP.

Raza Mohsin Qizilbash, Director, SBP.

Muhammad Aslam Ghauri, Joint Secretary Ministry of Finance.

Sohail Javed, Executive Director, SBP.

Manzoor-ul-Haq, Legal Officer, SBP.

Shoukat Bizinjo, Additional Director, SBP.

Sharoon Rasheed, Additional Director, SBP.

Atifuddin, Legal Consultant, SBP.

2022 M L D 1141

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui, J

GHULAM MUHAMMAD---Petitioner

Versus

PROVINCE OF SINDH through A.A.G. and others---Respondents

Constitutional Petition No.S-231 of 2020, decided on 19th February, 2021.

Constitution of Pakistan---

----Art.199(i)(b)---Constitutional petition---Habeas corpus, writ of---Territorial jurisdiction---Petitioner sought recovery of his wife who was allegedly taken by her parents to another province---Validity---Alleged detainee was handed over by petitioner to her parents, as such it was not a case of forcible detention or disappearance---Wife of petitioner was residing with her parents in a district of province of Punjab---High Court regarding habeas corpus petition did not have any jurisdiction beyond territories of province of Sindh---Constitutional petition was dismissed in circumstances.

Ghulam Murtaza Buriro for Petitioner.

Syed Sardar Ali Shah, D.P.G.

2022 M L D 1146

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

MUDASIR NAZAR---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-1413 of 2019, decided on 27th February, 2020.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd and common intention---Pre-arrest bail, refusal of---Scope---Allegation against accused was that he in league with his brother had beaten the latter's wife and forcibly administered poison as a result of which she died---Name of accused was duly mentioned in the FIR---Prosecution witnesses in their statements under S.161, Cr.P.C., had supported the version of the complainant---Case involved allegation of subjecting an innocent house lady to perpetrated domestic violence---Co-accused himself had laid the information before the police about taking of poison by the deceased, but the provisional post-mortem report had revealed that the deceased had also received five injuries on different parts of the body, which prima facie showed that she was subjected to domestic violence, but the injuries were suppressed by the accused in their report, which adversely reflected upon them---No question of mala fide existed on the part of the complainant to falsely implicate the accused in such a heinous crime involving brutal murder of an innocent house wife, carrying capital punishment falling within the ambit of prohibitory clause of S. 497, Cr.P.C.---Accused had failed to make out his case for grant of extraordinary concession of pre-arrest bail---Application was dismissed, in circumstances.

Gulshan Ali Solangi and others v. The State (Criminal Petitions Nos.197-K to 204-K, 211-K to 221-K and 230-K of 2019) and Rana Abdul Khaliq v. The State and others 2019 SCMR 1129 rel.

Akhtar Hussain Leghari for Applicant.

Ali Ahmed Palh for the Complainant.

Mrs. Sobia Bhatti, Assistant Prosecutor General for the State.

2022 M L D 1168

[Sindh]

Before Muhammad Ali Mazhar and Amjad Ali Sahito, JJ

KAINAT SOOMRO and 2 others---Petitioners

Versus

PROVINCE OF SINDH and 3 others---Respondents

C.P. No.D-5920 of 2015, decided on 4th June, 2021.

Contempt of Court Ordinance (IV of 2003)---

----Ss.3, 6 & 12---Constitution of Pakistan, Art.204---Contempt of Court---Failure to implement order---Applicant was aggrieved of failure to implement order passed by Supreme Court and High Court with regard to rape victims---Applicant contended that police stations failed to engaged civil society organizations on receipt of rape complaint on various occasions---Preservation of testing of DNA evidence was sporadic, un-standardized and delayed---Facilities available for DNA testing continued to be severely limited and dysfunctional---Plea raised by alleged contemnors was that there was no intention to flout the order or non-compliance but they were making some Standard Operating Procedures document---Effect---Alleged contemnors assured that Standard Operating Procedures would be religiously followed for proper and effective implementation of judgments---Slight changes were made in draft of Standard Operating Procedures to make compliance more effectively and practically---Application was disposed of accordingly.

Salman Akram Raja v. Government of Punjab 2013 SCMR 203 and Kainat Soomro and others v. Province of Sindh and others PLD 2020 Sindh 611 rel.

Mohamed Vawda and Ms. Palvasha Shahab for Petitioners.

Abdul Razzaq, Registrar, Sindh High Court.

Ms. Leela Kalpana Devi, Addl. A.G. Sindh.

Syed Meeral Shah Bukhari, Addl. P.G. Sindh.

DSP Raza Mian (Legal), Representative of IGP Sindh.

2022 M L D 1192

[Sindh]

Before Irfan Saadat Khan and Agha Faisal, JJ

Mst. BAKHMINA---Petitioner

Versus

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

Constitution Petition No.D-1893 of 2021, decided on 26th November, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Death on duty---Determination---Petitioner's husband was a police official who died during duty---Grievance of petitioner was that police authorities did not consider him as "Shaheed"---Validity---Deceased was found dead at some distance from place of his duty but he was in uniform and was found missing form his place of duty---First Information Report registered in such regard indicated that it was likely that he was targeted by Gang War criminals upon which an inference could be drawn that he was killed by criminals while he was in uniform---High Court directed police authorities to examine case of deceased afresh as such facts had skipped attention of concerned authority while considering case of deceased---Constitutional petition was disposed of accordingly.

Badar Hussain for Petitioner.

Ali Safdar Deepar, Assistant Advocate General (A.A.G.) along with Raza Mian, DSP (Legal) and SI Saleem Ahmed Faridi, PHQ, Garden, Karachi for Respondents.

2022 M L D 1200

[Sindh]

Before Aftab Ahmed Gorar, J

ZAMIR AHMED ABBASI---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No.S-365 of 2019, decided on 17th December, 2021.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), Ss.409, 420, 467, 468, 471---Anti Corruption Establishment Act (II of 1947) S.5(2)---Criminal breach of trust, cheating, forgery and misconduct---Observation of Court---Applicant was police official who was aggrieved of order passed by Trial Court recommending initiation of departmental inquiry against him---Validity---Applicant violated directions of his superiors and his such conduct amounted to misconduct and inefficiency on his part---Applicant intended to shelter actual culprits/accused persons, which required stern action against him by conducting enquiry---High Court declined to interfere in the order passed by Trial Court as after examining the record it had rightly recommended stern action against applicant---Application was dismissed, in circumstances.

Mst. Rehmat Bibi v. Ghulam Rasool and 4 others 2011 PCr.LJ 1994; J.M. Hayat Qureshi v. The State PLD 1996 Kar. 388 and Shuja-ud-Din v. The State 1968 SCMR 1359 distinguished.

Malik Naeem Iqbal for Applicant.

Talib Ali Memon, D.P.G., Sindh for Respondent.

2022 M L D 1239

[Sindh]

Before Yousuf Ali Sayeed, J

MUHAMMAD USMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.273 of 2019, decided on 13th July, 2021.

Penal Code (XLV of 1860)---

----S.302 (b)---Criminal Procedure Code (V of 1898), S. 265-H(2)---Qatl-i-amd---Appreciation of evidence---Confession by accused---Grave and sudden provocation---Scope---Accused was convicted and sentenced to imprisonment for life on the basis of confession made by him---Contention of accused was that he murdered under grave and sudden provocation as he was incensed when told by his wife that deceased had tried to commit Zina with her---Validity---Accused did not commit offence in the heat to that moment---Accused overtly maintained cordial relations with deceased even after he claimed to have been informed of such alleged advances and then committed murder with remediation after admittedly having called deceased to his residence for that purpose---Sufficient time was available for passion to have cooled down and reason to have prevailed---Accused formed intention of killing deceased and after having armed himself with a knife had called deceased to his house with intention of perpetrating the act, then proceeding to inflict as many as eight separate knife wounds as recorded in post-mortem report---High Court declined to interfere in judgment passed by Trial Court---Appeal was dismissed, in circumstances.

Ali Muhammad v. The State PLD 1996 SC 274; Javed Akhtar v. The State PLD 2020 SC 419 and PLD 2020 SC 201 ref.

Dilbar Aijaz for Appellant.

Seema Zaidi, DPG for the State.

Muhammad Naeem Ahmed for the Complainant.

2022 M L D 1271

[Sindh]

Before Ahmed Ali M. Shaikh, CJ andYousuf Ali Sayeed, J

GHULAM ALI MAGSI---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Acquittal Appeal No.451 of 2019, decided on 3rd June, 2021.

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

----Ss.302, 324, 506(ii), 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, criminal intimidation, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Delay of two days in lodging the FIR---Scope---Accused was charged that he along with co-accused perpetrated a murderous assault on the complainant and his relatives, due to which two relatives of the complainant were hit and died---First Information Report was registered with a delay of over two days---Police arrived immediately after the incident, collected blood-stained earth and empties and moved one of the dead bodies to hospital---Explanation offered for the delay in registration of the FIR was that the complainant party was preoccupied in the burial of the deceased and it was also stated generally that the complainant faced some security issues---However, in view of the complainant claiming to have been present at the scene of incident and at the hospital, the plea of preoccupation was not tenable and the other ground of insecurity was also not convincing as there was nothing on record to show that such an issue had ever been raised---Delay in registration of the FIR seemed to be purposeful and the element of exaggeration, malice and due deliberation, could not be ruled out---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal being devoid of merit, stand dismissed accordingly.

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

----Ss. 302, 324, 506(ii), 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, criminal intimidation, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Withholding material evidence---Effect---Accused was charged that he along with co-accused perpetrated a murderous assault on the complainant and his relatives, due to which two relatives of the complainant were hit and died---Record showed that at least three people other than the deceased were shown to have received injuries in the incident as per the deposition of the complainant, but were not cited as witnesses nor examined in term of S.161, Cr.P.C.---Nothing on record to show that said injured persons were taken to hospital or treated, such omission on the part of the prosecution raised serious doubt as to the veracity of the incident, as reported---Withholding evidence of said three injured gave rise to a presumption in term of Art. 129(g) of the Qanun-e-Shahadat, 1984 that, if they had been produced, their testimony would have been unfavourable to the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal being devoid of merit, stand dismissed accordingly.

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

----Ss.302, 324, 506(ii), 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, criminal intimidation, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Presence of the complainant at the place of occurrence was doubtful---Scope---Accused was charged that he along with co-accused perpetrated a murderous assault on the complainant and his relatives, due to which two relatives of the complainant were hit and died---Complainant deposed that deceased complained to his brother that boys from the complainant party fought with him, which, according to the prosecution, infuriated the accused, who then attacked the complainant party and caused death of two persons, with co-accused also falling victim to the firing that ensued---High Court observed that the narrative begged the question that when victim himself had died and his brother was an accused in the case, who then informed the complainant about the complaint allegedly made by victim of accused---Complainant failed to disclose the source of his knowledge of the supposed altercation when cross-examined in that regard---Complainant deposed that five persons arrived at the place of incident on two motorcycles and attacked the complainant party but both the witnesses deposed that only three persons came to the spot on one motorcycle and perpetrated an attack---Complainant deposed that accused fired at him with his Kalashnikov, with the bullet missing him while passing through his clothes so as to leave a hole and burnt the rear of his kamiz, then went on to victim, but the kamiz was not handed over to the police, which made the version doubtful---Complainant remained safe while his close relatives received serious injuries in front of him, and he did not try to save them and also did not record his statement or even become a mashir as to the recovery of empties and blood-stained earth when the police arrived at the spot---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal being devoid of merit, stand dismissed accordingly.

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

----Ss. 302, 324, 506(ii), 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, criminal intimidation, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Recovery of Kalashnikov and non-recovery of lathi---Scope---Accused was charged that he along with his co-accused perpetrated a murderous assault on the complainant and his relatives, due to which two relatives of the complainant were hit and died---Kalashnikov shown to have been recovered at the indication of accused was not functional, therefore no test was performed and there was no report to demonstrate that the empties found at the place of incident were in fact fired from that weapon---One of the victims, who died at the scene of the incident, was said to have been armed with a lathi and had struck a blow to the complainant, but the lathi was not recovered from the place of incident, which also created serious doubt as to the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal being devoid of merit, stand dismissed accordingly.

(e) Appeal against acquittal---

----Double presumption of innocence---Interference---Appeal against acquittal is distinct from an appeal against conviction, as the presumption of double innocence is attached to the former---Acquittal can only be interfered with when it is found to be capricious, arbitrary and perverse. [p. 1278] F

State v. Abdul Khaliq PLD 2011 SC 554 rel.

Shabbir Ahmed Kumbho for Appellant.

Abdul Hafeez Sandhu for Respondent No.3.

Ali Haider Saleem, DPG for the State.

2022 M L D 1298

[Sindh]

Before Muhammad Saleem Jessar, J

FAHEEM alias BARA---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.106 of 2020, decided on 3rd March, 2021.

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

----S.23(1)A---Possession of illegal weapon---Appreciation of evidence---Benefit of doubt---Rule of consistency---Scope---Prosecution case was that 30-bore pistols were recovered from the possession of accused and they failed to produce licence of the same---Cases of the accused persons were entrusted to two different courts---Record showed that memo of recovery and arrest in respect of present accused as well as co-accused was handed down by same set of witnesses, who had deposed in the same line and manner before two courts---Trial Court, who tried the case of co-accused, disbelieved the evidence of prosecution witnesses against co-accused (since acquitted) on the basis of same set of evidence while the court trying the case against present accused had convicted the accused on the basis of same set of evidence furnished by the same witnesses, which was in clear violation of rule of consistency---Rule of consistency demanded that if the evidence had been disbelieved in respect of co-accused, the same could not be relied upon for convicting other accused---Present accused in circumstances should a have also been extended same benefit as given to the acquitted accused, which was not done by the Trial Court---Appeal against conviction was allowed, in circumstances.

Muhammad Imran v. The State 2020 SCMR 857; Ali Muhammad v. The State 2020 PCr.LJ 1104; Waris and another v. The State and others 2020 SCMR 2044; Muhammad Akram v. The State 2009 SCMR 230; Yasin alias Ghulam Mustafa v. The State 2008 SCMR 336; Shamoon alias Shamma v. The State 1995 SCMR 1377; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 ref.

Mohammad Asif v. The State 2017 SCMR 486; Umar Farooque v. State 2006 SCMR 1605 and Mohammad Akram v. The State 2012 SCMR 440 rel.

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

----S.23(1)A---Possession of illegal weapon---Appreciation of evidence---Benefit of doubt---Admission of accused---Scope---Prosecution case was that 30-bore pistols were recovered from the possession of accused and accused failed to produce licence of recovered weapons---Evidence of prosecution witnesses, had made certain very material admissions in their evidence which were fatal to the prosecution case---Trial Court did not consider/appreciate said admissions while delivering the impugned judgment---Acquittal of co-accused on the basis of same set of evidence had not been challenged by the prosecution---Conviction of the accused on same set of evidence, where other accused charged similarly was acquitted, was altogether unjustified under the law---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Benefit of doubt---Principle---Prosecution had to stand on its own legs to prove charge against accused and the benefit of doubt even a slightest would go in favour of the accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----S.23(1)A---Possession of illegal weapon---Appreciation of evidence---Benefit of doubt---Prosecution case was that 30-bore pistols were recovered from the possession of accused and they failed to produce licence of recovered weapons---Record showed that recovery was effected in presence of Rangers Officials at thickly populated area, however, none from the Ranger personnel was associated as witness or attesting witness of the recovery proceedings---In other words, witnesses in whose presence alleged recovery was effected, were not produced during trial---Evidence of witnesses who had been examined before the Trial Court against accused was of no consequence, more particularly when their evidence had not been believed by the other trial Court against co-accused---Recovery of pistol appeared to be managed as no script/words of such pistol had been furnished by the prosecution in the memo. of recovery---Recovery of pistol from the present accused became doubtful as the pistol was alleged to have been recovered from the accused and such joint memo of recovery was made against accused---Joint memo of recovery had always been considered to be fatal to the prosecution case which fact had eclipsed evidentiary worth of the recoveries---Appeal against conviction was allowed, in circumstances.

Rashid Khan v. The State and another 2019 MLD 675 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---If single doubt is created its benefit must accrue in favour of the accused as a matter of right and not as a matter of grace or concession.

Qaim Ali Memon for Appellant.

Talib Ali Memon, Assistant Prosecutor General, Sindh for the State.

2022 M L D 1308

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh, J

ALI GOHAR GOPANG and another---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-77 of 2020, decided on 16th April, 2020.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.337-A(i), 337-A(ii), 337-F(i), 452, 504, 148 & 149---Shajjah-i-khafifah, shajjah-i-mudihah, damiyah, house-trespass after preparation for hurt, assault or wrongful restraint, intentional insult with intent to provoke breach of the peace, rioting, armed with deadly weapon, common object---Pre-arrest bail, confirmation of---Conceding statement of Prosecutor---Effect---Accused persons sought pre-arrest bail in an FIR registered for offences under Ss.337-A(i), 337-A(ii), 337-F(i), 452, 504, 148 & 149, P.P.C.---Prosecutor conceded to the confirmation of pre-arrest bail earlier granted to the accused persons---Accused persons had joined their trial and were not alleged to have misused the concession of interim pre-arrest bail---Accused persons had made out their case for grant of anticipatory bail as such the bail was confirmed.

Idrees Ahmed Mangi for Applicants along with Applicants.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

2022 M L D 1315

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

MUHAMMAD ALI SOOMRO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-698 of 2021, decided on 8th November, 2021.

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

----S.498---Ad-interim bail---Scope---Grant of pre-arrest bail is a remedy rooted into equity; at a cost to hamper the investigation, such judicial protection is extended, solely to save the innocent from the horrors of abuse of process of law to protect his dignity and honour---Pre-arrest bail could not be granted in every run-of-the-mill criminal case, particularly to the accused confronting prima facie charges structured upon material/evidence, warranting custody, that too, based on positions/pleas, verification whereof, is consequent upon the recording of evidence.

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

----S.498---Penal Code (XLV of 1860), Ss. 409, 420, 477-A & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, falsification of accounts, common intention, public servant committed or attempted to commit criminal misconduct---Ad-interim bail, dismissal of---Accused was charged for committing/embezzling Income Tax amount Rs.72,76,221/- which had been deducted from the salaries of employees---Investigation in the case, was in progress and the custody of the applicant was required for further investigation concerning his role and his accomplices---Moreover, there was question and probability that the evidence could be tampered with by the applicant or that the prosecution witnesses would be influenced by him if his pre-arrest bail was confirmed---Material evidence relating to the subject matter was yet to be collected from the applicant during the investigation---Guilt or innocence of the applicant was yet to be established as it would depend on the strength and quality of the evidence which would be produced by the prosecution and the defence before the Trial Court---Investigation could not be thwarted by allowing the applicant with the premium to circumvent the legal process by not joining the investigation---Grant of pre-arrest bail, in circumstances, would undermine the entire investigation process which was not permissible under the law---Bail application was dismissed accordingly.

Saifullah Dasti for Applicant.

2022 M L D 1328

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

NASEEM AHMED MALIK (Deceased) through legal heirs and others---Appellants

Versus

SAEED IQBAL and others---Respondents

High Court Appeal No.347 of 2019, decided on 17th November, 2020.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Rejection of plaint---Scope---Appellants assailed the dismissal of their application under O.VII, R.11, C.P.C. for rejection of plaint---Validity---Parties had settled their respective claim by virtue of a compromise decree passed in earlier suit---Main grievance of respondents in the present suit was that since the compromise decree was not implemented, hence, they were compelled to file the suit---All the properties mentioned in the compromise decree were not transferred/mutated as envisaged in the compromise decree---Nothing contrary was placed on record by the appellant to show that compromise decree had been executed---Where compromise decree was either violated or one of the parties through their inaction had attempted to frustrate the compromise, then those beneficiaries whose interest was prejudiced could file fresh proceedings---Compromise decree should have been executed and implemented long time back because it related to distribution of inheritance amongst legal heirs, which was to be given preference over ordinary matters, being a requirement and command of Sharia Law---No illegality was found in the impugned order---Appeal was dismissed.

Peer Dil and others v. Dad Muhammad 2009 SCMR 1268; Shah Rasool and others v. Maulana Ghulam Rahim and others 2016 YLR 89 and Santa Narain Tewari v. Saran Narain Tewari and others AIR 1959 Patna 331 ref.

S. Ali Ahmed Tariq for Appellants.

Muhammad Shahid Qadeer Suharwardy for Respondents.

2022 M L D 1340

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh, J

IMRAN ALI KALWAR---Applicant

Versus

The STATE and another---Respondents

Criminal Revision Application No.S-51 of 2019, decided on 30th September, 2019.

Criminal Procedure Code (V of 1898)---

----S.514---Procedure on forfeiture of bond---Surety not given an opportunity to produce the accused---Effect---Applicant assailed order passed by Sessions Judge whereby he was imposed upon a penalty of entire surety amount as the accused had failed to appear before the court---Held; applicant was not provided fair opportunity to produce the accused before the Court---Accused was not issued a notice and on coming to know that the challan had been submitted against him, he had surrendered himself before the concerned court---Accused was later on acquitted on the basis of compromise---Order passed by Sessions Judge was patently illegal and was set aside---Revision application was allowed, in circumstances.

Mohammad Ali A. Pirzado for Applicant.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

2022 M L D 1353

[Sindh (Sukkur Bench)]

Before Khadim Hussain Tunio, J

NATIONAL DATABASE AND REGISTRATION AUTHORITY (NADRA) through Chairman, Islamabad and another---Applicants

Versus

RUQUIA---Respondent

Civil Revision Application No.S-3 of 2021, decided on 26th April, 2021.

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

----S.20---Suit to be instituted where defendant reside or cause of action arise---Scope---Lis can be brought against a defendant in a place where it "carries on business" and the Explanation provided by the Legislature states that a corporation shall be deemed to carry on its business at its "sole or principal office in Pakistan" or its "subordinate office" given that cause of action, partly or whole, arose there.

United Distribution Pakistan Ltd v. Al-Syed Agrochemicals Services and others 2005 CLC 1659 and Messrs Brady & Co. (Pakistan) Ltd v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494 ref.

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

----S.20---Suit to be instituted where defendant reside or cause of action arise---Scope---Despite the words "shall be deemed" in Explanation 2 in terms defines the words "carries on business" used in cls. (a) and (b) of the section, and means that where the defendant is a corporation, it is deemed to be carrying on business at its sole or principal office irrespective of whether the cause of action has arisen there, as well as at the place where it has its subordinate office, provided the cause of action arises there.

(c) Interpretation of statutes---

----Explanation---Scope---Explanation is ratified by the Legislature to explain what would otherwise be doubtful or ambiguous legislation---To the extent that it explains a stipulated situation its function is definite inasmuch as it clarifies or defines the legal position in a supposed state of facts.

Safdar Kamal for Applicants.

Respondent through her attorney Abdul Qayoom.

2022 M L D 1367

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui, J

ILTAF AHMAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Applications Nos.S-536 and S-537 of 2020, decided on 22nd October, 2020.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 399, 402, 324 & 353---Sindh Arms Act (V of 2013), S.25---Making preparation for dacoity, assembling for purpose of committing dacoity, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty---Possession and use of firearms to commit crime---Bail, grant of---Un-natural conduct---Further inquiry---Scope---Allegation against accused was that he along with his associates was present on a road in order to commit some offence which was intimated to raiding police party by spy informer---Police party reached at the reporting place where encounter took place and during encounter the accused received injuries while co-accused succeeded to run away---Accused was arrested in injured condition along with pistol for which he disclosed that the same was unlicensed, therefore, the companion case under S.25 of Sindh Arms Act, 2013 was also registered---Held; allegedly the accused along with co-accused was available at some place in order to prepare for some offence but no overt act towards the offence was done prior to reaching of the police party---Accused persons had allegedly opened fire upon police party which was retaliated but none from the police party had received injuries---First Information Report of the main case indicated that after the arrest of accused he had disclosed that he had received injuries from his own associate---Reportedly police party had reached at the place of incident in a vehicle but despite of showers of bullets, the police vehicle remained harmless---Accused had sustained injuries above his knees which spoke volumes about the action taken by the police---Case of accused required further probe, as such, he was entitled for bail in both cases---Applications for grant of bail were allowed, in circumstances.

Shabbir Ali Bozdar for applicant/accused.

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

2022 M L D 1382

[Sindh (Larkana Bench)]

Before Muhammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

GHULAM MURTAZA MEERANI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-71 of 2018 and Criminal Confirmation Case No.D-12 of 2018, decided on 10th February, 2021.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---First Information Report lodged with promptitude---Scope---Accused was charged for committing murder of the son of the complainant by inflicting churri blows---First Information Report was lodged with promptitude within one and a half hours of the murder, thus, there was no opportunity to cook up a false case against the accused---No enmity had come on record between the accused and the complainant party, which would motivate them to lodge a false case against accused---Accused was named in the FIR with a specific role---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the son of the complainant by inflicting churri blows---Complainant had seen the incident clearly which was corroborated by the evidence of tapedar along with his sketch which also corroborated the fact that the complainant and other eye-witness were between 10 and 16 feet from the accused when he attacked the deceased with the churri---Occurrence was a day light incident and the complainant and other eye-witnesses knew the accused, they would have had no difficulty in identifying him as the attack went on for a few moments---Eye-witness was a natural witness and not a chance witness as he had come with his son to the Otak with his other relatives who all lived close by, except one who had come to visit his sister---Complainant lodged FIR with promptitude and named the other eye-witnesses in the FIR along with the accused with a specific role---Complainant had no enmity with the accused and had no reason to falsely implicate him---Evidence of complainant was not dented despite lengthy cross-examination---Complainant did not intervene in the attack because he was unarmed and he did not give chase as his priority was to take his son to the hospital---No significant improvements in his evidence from the FIR were on record so as to render it unreliable---Evidence of complainant was found to be reliable, trustworthy and confidence inspiring and conviction could be awarded on that evidence alone---Moreover, it did not appeal to reason, logic or commonsense that a father/complainant would let the murderer of his son go scot free by substituting him with an innocent person/accused---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Aimal Khan v. The State 2012 MLD 441; Muhammad Akram v. The State 2009 SCMR 230; Farooq Khan v. The State 2008 SCMR 917; Talib Hussain v. The State 1995 SCMR 1776 and Khadim Hussain v. The State PLD 2010 SC 669 ref.

Muhammad Ehsan v. The State 2006 SCMR 1857 and Allah Ditta v. State PLD 2002 SC 52 rel.

(c) Criminal trial---

----Witness---Related witness---Statement of related witness---Reliance---Scope---Evidence of related witness could not be discarded unless there was some ill will or enmity between the eye-witness and the accused.

Ijaz Ahmed v. The State 2009 SCMR 99 and Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 rel.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Medical and ocular evidence---Corroboration---Accused was charged for committing murder of the son of the complainant by inflicting chhuri blows---Medical Officer fully supported the eye-witness/prosecution evidence as he confirmed that the deceased was brought dead to the hospital by a sharp cutting substance (churri) and some by biting which led to his death as deposed by the eye-witnesses---Post mortem was carried out with promptitude which would rule out the cooking up of any false case---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Minor contradictions---Scope---Accused was charged for committing murder of the son of the complainant by inflicting churri blows---All the prosecution witnesses were consistent in their evidence---Contradictions in their evidence were minor in nature and certainly not of such materiality so as to affect the prosecution case and the conviction of the accused---Evidence of prosecution witnesses provided a believable corroborated unbroken chain of events from the meeting at the Otak, murder of the deceased at the Otak by the accused through churri blows, to the arrest and recovery of the blood-stained churri from the accused---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Zakir Khan v. State 1995 SCMR 1793 rel.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Police Official a witnesses---Scope---Accused was charged for committing murder of the son of the complainant by inflicting churri blows---Record showed that the police witnesses had no enmity or ill will towards the accused and had no reason to falsely implicate him in the case by making up his arrest or foisting the churri on him---Such 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---Appeal against conviction was dismissed accordingly.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

Faiz Muhammad Larik for Appellant.

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

2022 M L D 1405

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto and Zulfiqar Ali Sangi, JJ

BASHIR BUGHIO and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.D-60 of 2017, Criminal Reference No.09 of 2017, Criminal Jail Appeal No.D-10 of 2019 and Criminal Appeal No.S-105 of 2017, decided on 11th November, 2020.

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

----Ss.302, 337-H(2), 114, 504 & 34---Criminal Procedure Code (V of 1898), Ss. 221, 222 & 223---Qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, abettor present when offence is committed, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Framing of charge---Requisites---Non-specified role of accused---Effect---Accused were charged for committing murder of the brother of the complainant by firing---Record showed that there was no mention in the charge that accused, who had been sentenced to death, committed murder of the deceased---Allegations of the prosecution for the co-accused persons had also not been specified in the charge---Particulars of offence had also not been specified, thus, serious prejudice was caused to the accused in the preparation of the defence---Circumstances showed that Trial Court had framed charge in a casual manner without application of judicial mind---Two accused who had been sentenced to death, were misled in their defence by an error in the charge---Said fact would be a ground for setting aside conviction/sentence recorded against them with remand of case for re-trial after making suitable amendment in the charge---Impugned judgment was set-aside and matter was remanded to the Trial Court for framing the charge afresh in accordance with law, to record evidence and statements of accused afresh and to decide the case afresh---Appeal was disposed of accordingly.

Saeed Ullah v. Asfandiyar 2017 PCr.LJ Note 5; Nawab Liaquat Ali v. The State 2014 PCr.LJ 527; Asif Iqbal v. The State 2012 PCr.LJ 91; Nisar Akhtar v. The State 2002 MLD 372 and Mubeen v. The State 2006 YLR 359 ref.

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

----Ss. 221 & 222---Framing of charge---Requisites---Charge framed against the accused must contain material particulars as to time, specific offence, manner in which the offence was committed and the particulars of the accused, in order to afford him opportunity to explain the matter with which he was charged and to prepare his defence at the commencement of the trial.

S.A.K. Rehmani v. The State 2005 SCMR 364 and Dost Muhammad v. The State NLR 1995 SD 585 rel.

Athar Abbas Solangi for Appellants (in all three appeals).

Ali Anwar Kandhro, Additional Prosecutor General for the State.

Ahmed Hussain Khoso for the Complainant.

2022 M L D 1420

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

MUHAMMAD ALI ABRO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-49 of 2020, decided on 25th January, 2021.

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

----Ss.269, 270 & 337-J---Negligent act likely to spread infection of disease dangerous to life, malignant act likely to spread infection of disease dangerous to life, causing hurt by means of a poison---Appreciation of evidence---Benefit of doubt---Delay in sending the recovered material for chemical analysis---Effect---Prosecution case was that 35-packets of Gutka Supari in two sacks were recovered from the vehicle driven by accused---Use of said material malignantly spread the infection of diseases dangerous to life as it contained intoxicants/unwholesome drugs---Record showed that the parcel of material was sent to the Chemical Examiner after three days for which no plausible explanation was furnished by the prosecution---Person who brought the property to the Chemical Examiner was also not examined by the prosecution to explain as to where the property was kept for three days---Said fact alone was sufficient to disbelieve the recovery---Report of Chemical Examiner showed that 02 packets of Gutka were received at the laboratory, whereas Road Certificate showed that both the sacks containing 35 packets each were sent for chemical examination---Road Certificate, did not mention about the two packets which were separated, one from each sack, at the time of recovery for chemical examination and were sealed separately---Case of prosecution became doubtful---Appeal against conviction was allowed, in circumstances.

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

----Ss.269, 270 & 337-J---Negligent act likely to spread infection of disease dangerous to life, malignant act likely to spread infection of disease dangerous to life, causing hurt by means of a poison---Appreciation of evidence---Benefit of doubt---Prosecution case was that 35-packets of Gutka Supari in two sacks were recovered from the vehicle driven by accused---Use of recovered material malignantly spread the infection of diseases dangerous to life as it contained intoxicants/unwholesome drugs---All the witnesses were on same line that police recovered two sacks containing 35 packets in each and they separated one packet from each sack for chemical examination and sealed the remaining packets in same sacks---Police also sealed both the two packets which were separated from each sack for chemical examination---Evidence of all the said witnesses showed that only 34 packets were sealed in each sack---Mashirnama of arrest and recovery so also FIR disclosed the same facts about the recovery and sealing---Record revealed that the sacks were de-sealed on the request of the DPP for the state before the Trial Court and were found 35 packets of Gutka in each sack---Chemical Examiner's report also showed that two packets were received at Laboratory for the test---Evidence of complainant when considered with the chemical examiner's report, it created very serious doubt about the recovery of alleged Gutka---If those packets which were sent for chemical examination were included in the property brought before the court and was de-sealed it become 36 packets in each sack which was not the case 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.

(c) Criminal trial---

----Benefit of doubt---Principle---Benefit of a single circumstance, deducible from the record, intriguing upon the integrity of prosecution case, would be extended to the accused without reservation.

Athar Abbas Solangi for Appellant.

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

2022 M L D 1452

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

FAYAZ and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-91 of 2015, decided on 30th April, 2018.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that twenty seven kilograms of Charas was recovered from the luggage of accused persons while they were travelling through a bus---Prosecution case was that two bags containing Charas allegedly belonging to the accused, who were travelling in the bus, were secured by the Ranger Officials from the roof of the bus---Accused admitted that those bags belonged to them---Such prosecution evidence was not acceptable mainly for the reasons that luggage of all the passengers were lying on the roof of the bus---During investigation, neither the tickets of bus were collected/recovered from the accused nor tags of those bags were recovered for connecting the accused in the commission of crime---Admittedly, bags were lying upon the roof of the bus---Legally, the recovery of Charas was not from the exclusive possession of the accused---Trial Court convicted the accused on the ground that the accused admitted during interrogation in presence of the Ranger Officials that those bags belonged to them---Such evidence was legally in-admissible---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Noor and others v. The State 2010 SCMR 927; Ikramullah and others v. The State 2015 SCMR 1002; Muhammad Sarfraz v. The State and others 2017 SCMR 1874; Muhammad Khan v. The State 2008 SCMR 1616; Roshan v. The State 2018 PCr.LJ Note 26 and Liaquat Ali and another v. The State 2018 PCr.LJ 257 ref.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Defective investigation---Scope---Prosecution case was that twenty seven kilograms Charas was recovered from the luggage of accused persons while they were travelling through a bus, hence the FIR---Investigating Officer failed to examine the bus driver and its cleaner so also the passengers who were travelling in that bus to establish the ownership of the accused with regard to the bags lying on the roof of the bus---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Safe custody---Scope---Prosecution case was that twenty seven kilograms Charas was recovered from the luggage of accused persons while they were travelling through a bus---In the present case, there was no evidence that after the recovery of bags containing chars, the same were kept in Malkhana of Police Station Anti Narcotic Force---No incharge/Head Moharer of said Police Station had been examined before the Trial Court---Charas was sent to the Chemical Examiner through Police Constable who had not been examined by the Trial Court which clearly showed that safe transit to the Chemical Examiner had also not been established and the tampering with case property at Police Station, Anti Narcotic Force, could not be ruled out---Apart from that Chemical Examiner failed to prepare the report as per protocol provided in the rules---Report of Chemical Examiner though positive was deficient in the eyes of law---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal was allowed, in circumstances.

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

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Call Data Record was not produced---Scope---Prosecution case was that twenty seven kilograms Charas was recovered from the luggage of accused persons while they were travelling through a bus---Record showed that the complainant and other Inspector Rangers reported the matter to high officials soon after the recovery of Charas, however, no call data /evidence through modern devices to that extent had been produced before the Trial Court for its satisfaction---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

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

Ali Gohar Khokhar for Appellant.

Muhammad Ayoub Kasar, Special Prosecutor ANF for the State.

2022 M L D 1482

[Sindh]

Before Zulfiqar Ali Sangi, J

SHABIR KHOSO and 9 others---Applicants

Versus

The STATE---Respondent

Criminal Revision Application S-71 of 2011, decided on 6th April, 2021.

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

----Ss.337-A(i), 337-F(i), 337-F(v), 148 & 149---Shajjah-i-khafifah, mutalahimah, shajjah-i-hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Contradictions and improvements in the statements of witnesses---Scope---Accused were charged for injuring the grandfather of complainant and other persons by inflicting lathi blows---Motive behind the incident was a dispute over a plot---Record showed that all the eyewitnesses/injured gave contradictory evidence and made improvements---Complainant during his examination-in-chief deposed that on the day of incident, they were standing where accused called his sons and brothers and attacked upon them---One of the accused was armed with pistol, while rest of accused were armed with lathies---Other injured did not disclose about the calling by accused---Another accused also deposed during his examination-in-chief that all accused came at once at the place of incident and attacked upon them---Complainant stated during his cross-examination that they (all the injured) were brought at police station by their two relatives on Chingchi riksha---Other injured stated during his cross-examination that only three persons/injured went to police station on Chingchi riksha---Another injured also stated like other injured in that respect---Said witnesses did not support each other as to who took them towards police station on Chingchi riksha after they received injuries---Complainant during his cross-examination stated that they reached at police station at 9.25 a.m. and hospital at 10.10 a.m.---Other injured stated during his cross-examination that they reached at police station at 9.00 a.m. and at hospital at 9.20 a.m.---Another injured stated during his cross-examination that they reached at police station at 9.00 am and at hospital at 9.45 am---Contradictions in the evidence of the eye-witnesses and the improvements made by them during the trial were major in nature which cut the roots of the prosecution case and made it doubtful---Nothing was recovered from the accused and the enmity was also admitted by the complainant---General allegation was levelled against all the ten accused for causing injuries to the complainant and the injured witnesses---No specific injury was attributed to any of them---Conflict in the evidence of the injured witnesses and the Medical Officer on the point of reaching of the injured witnesses at the hospital made the case of prosecution doubtful---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.

Rahim Shah v. The State and another 2004 PCr.LJ 1129; Awais and another v. The State and another 2004 PCr.LJ 377 and Muhammad Ramzan v. The State 2001 PCr.L.J 83 ref.

Taj Mohammad and 2 others v. The State 2020 PCr.LJ 1693 and Ghulam Hyder through Superintendent, Central Prison v. The State 2020 YLR 2411 rel.

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

----S. 342---Statement of accused---Scope---All the incriminating piece of evidence available on record in shape of examination-in-chief, cross-examination or re-examination of witnesses were required to be put to the accused, if the same were against him, while recording his statement under S.342, Cr.P.C.

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

----Ss.337-A(i), 337-F(i), 337-F(v), 148 & 149---Criminal Procedure Code (V of 1898), S. 342---Shajjah-i-khafifah, mutalahimah, shajjah-i-hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Examination of accused---Scope---Accused were charged for injuring the grandfather of complainant and other persons by inflicting lathi blows---Statements of the accused recorded under S.342, Cr.P.C., revealed that the medical evidence produced by the prosecution was not put to accused at the time of recording their statements under S.342, Cr.P.C., enabling them to explain the circumstances appearing in the evidence against them, therefore, such evidence could not be considered against them---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court.

Muhammad Shah v. The State 2010 SCMR 1009; Imtiaz alias Taj v. The State 2018 SCMR 344; Qadan and others v. The State 2017 SCMR 148; Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Single circumstance which created reasonable doubt in the mind of a prudent man come in the evidence of the prosecution, its benefit would go to accused not as a matter of grace or concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Asif Ali Abdul Razak Soomro for Applicant.

Rafique Ahmed K. Abro for the Complainant.

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

2022 M L D 1506

[Sindh]

Before Adnan-ul-Karim Memon, J

Mst. FATIMA ZAHRA---Petitioner

Versus

MUHAMMAD SHEROZ and 2 others---Respondents

Constitutional Petition No.S-991 of 2021, decided on 7th January, 2022.

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

----Ss.12 & 17---Power to make interlocutory order for production of minor and interim protection of person and property---Matters to be considered by the Court in appointing guardian----Welfare of minor---Visitations rights of father---Respondent-father had contracted second marriage---Respondent (father) filed application under S.12 of the Guardians and Wards Act, 1890, for temporary custody of minor in winter and summer vacations which was allowed---Held, that paramount consideration while deciding question of custody of minor was the welfare of minor irrespective of age, sex and religion---Welfare includes his/her moral, spiritual and material well being----While considering what was welfare of minor, Court should have regard to age, sex, religion of minor, character and capacity of proposed guardian, his/her nearness of kin to the minor, and preference of minor if he or she was intelligent enough to make it---Travelling of minor from petitioner (mother) house to house of respondent- father from time to time and from hand to hand could not be suitable for health and betterment of minor----High Court directed that respondent father should have visitations rights i.e. birthdays, eid occasions, and summer and winter vacations and arrangements should be made by the Family Judge that such arrangements shall be subject to payment of maintenance of minor-----Constitutional petition was disposed of accordingly.

PLD 2018 Bal. 444 rel.

Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557 distinguished.

Ms. Shabana Ishaque along with Saathi M. Ishaque for Petitioner.

Raheel Samsam Ali Khan for Respondent No.1.

2022 M L D 1525

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

BARKAT---Petitioner

Versus

The STATE---Respondent

Criminal Bail Application No.S-112 of 2021, decided on 22nd March, 2021.

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

----S.497---Penal Code (XLV of 1860), Ss.302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Bail, refusal of---Accused was charged that he, in association with co-accused being armed with iron rod, as a member of unlawful assembly committed murder of the nephew of complainant---Record showed that the present accused had been attributed specific role and overt act of causing blows of iron rod to the deceased---Admitted fact that after arrest of the accused, said iron rod, used in the commission of alleged offence, was also recovered from the possession of the accused, which was also stained with blood---Version of the complainant recorded in the FIR was fully supported by the witnesses in their statements recorded under S.161, Cr.P.C. so also corroborated by post-mortem report---Prima-facie, there was sufficient material against the accused to connect him with the commission of offence, in which an innocent soul, aged about 34/35 years, had lost his life---Accused had played his specific role in committing the murder of the deceased by causing him blows of iron rod and the case fell under the prohibitory clause of S.497(1), Cr.P.C.---Bail application was dismissed, in circumstances.

Mukaram v. The State 2020 SCMR 956 and Rasool Bux v. The State 2017 YLR Note 131 ref.

Muhammad Zahid v. The State 2012 YLR 2790 ref.

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

----Ss.497 & 498---Bail---Principle---Deeper appreciation of evidence is not required at bail stage.

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

----S.497---Bail---Observations recorded in bail order, being purely tentative in nature, would in no way prejudice the proceedings before the trial court where the case is to be decided strictly on its own merits after recording evidence.

Shabbir Ali Boizdar for Applicant.

Ghulam Mujtaba Jakhar for the Complainant.

Shafi Muhammad Mahar, Deputy P.G. for the State.

2022 M L D 1538

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

MUHAMMAD AMIR---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-427 of 2020, decided on 21st August, 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-association of independent witnesses---Scope---Accused was alleged to have been found in possession of 1890 grams of charas---Case had already been challaned and the accused was not required for investigation---Prosecution case was that the accused was arrested on spy information from a thickly populated area but the complainant did not bother to join any independent person either from the place of information or from the place of incident to witness the event, therefore, false implication of accused could not be ruled out---Out of the four pieces 10 grams from each piece was separated for chemical examination and the whole property was not sent for such purpose---Accused was admitted to post-arrest bail, in circumstances.

Muhammad Yaseen M. Khaskheli for Applicant.

2022 M L D 1557

[Sindh]

Before Niamatullah Phulpoto and Abdul Mobeen Lakho, JJ

MUHAMMAD FAISAL---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No.248 of 2019, decided on 18th March, 2021.

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

----Ss.324 & 353---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S.23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, act of terrorism, possessing illegal weapon---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused being in suspicious condition was stopped, but he fired upon police party with intention to kill them and one bullet hit the police mobile, police also fired in retaliation, resultantly, accused sustained fire arm injury and was apprehended---Record showed that the alleged encounter took place on 16.04.2019 at 02.30 pm near a Departmental Store, a very thickly populated area and reportedly, it continued for five minutes but surprisingly except accused, no injury was caused either to police party or even to the passersby---Non-production of the arrival and departure entries of police station also cut the roots of the prosecution case---Even Investigating Officer had not found any blood while conducting inspection of the place of incident---Complainant admitted in his evidence that private persons were present but he did not ask them to act as mashir, thus, best possible evidence was not produced---Presumption would be that in case private persons had been examined they might have not supported the prosecution case---Circumstances established that the prosecution had failed to bring home the guilt of accused---Appeal against conviction was allowed, in circumstances.

Kamaluddin alias Kamala v. The State 2018 SCMR 577; Zeeshan alias Shani v. The State 2012 SCMR 428 and Iltaf Hussain v. The State 1996 SCMR 167 ref.

Iltaf Hussain v. The State 1996 SCMR 167 rel.

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

----Ss.324 & 353---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, act of terrorism, possessing illegal weapon---Appreciation of evidence---Benefit of doubt---Weapon of offence and crime empties were recovered---Scope---Prosecution case was that the accused being in suspicious condition was stopped, but he fired upon police party with intention to kill them and one bullet hit the police mobile, police also fired in retaliation, resultantly, accused sustained fire arm injury and was apprehended---Record showed that the prosecution had failed to establish the safe custody of the recovered pistol and empties at the police station as neither Incharge of the Malkhana was examined nor any entry had been produced by the prosecution---Non production of any witness concerned with such custody would certainly render the recovery unbelievable and doubtful---Circumstances established that the prosecution had failed to bring home the guilt of accused---Appeal against conviction was allowed, in circumstances.

Kamaluddin alias Kamala v. The State 2018 SCMR 577 rel.

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

----S.353---Police encounter---Standard of proof---High Court observed that standard of proof should be 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, in that case, could not have been investigators of their own cause---Such 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---Appeal against conviction was allowed, in circumstances.

Zeeshan alias Shani v. The State 2012 SCMR 428 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---For giving benefit of doubt, it was not necessary that there should be many circumstances creating doubt---If there was a circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Farooq for Appellant.

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

2022 M L D 1629

[Sindh]

Before Salahuddin Panhwar, J

The PROVINCE OF SINDH through Secretary Agriculture Department, Government of Sindh, Karachi and another---Petitioners

Versus

Messrs JAFAR BROTHERS (PVT.) LTD. through Authorized representative ---Respondent

Civil Revision Application No.130 of 2017, decided on 3rd February, 2020.

Civil Procedure Code (V of 1908)---

----O.VII, R.2---Suit for recovery of money---Contractual amount---Liability to pay---Respondent / plaintiff sought recovery of balance contractual amount from applicant / Provincial Government---Trial Court and Lower Appellate Court concurrently decided the matter in favour of respondent / plaintiff and against applicant / Provincial Government---Provincial authorities themselves took unambiguous responsibilities to make payment to contractor---Once taken such responsibility, the executant legally could not take any exception---After 18th Amendment in the Constitution, Provincial Authorities were legally believed to be acting independently---Relief was not tenable in law unless specifically detailed in document and agreed by the other side---No such reference was available in the contract that Federal Government had stopped payments because of 18th Amendment in the Constitution--- Execution of agreement in the shape of work at the site and payment to respondent was prime duty of Provincial Government who issued work order---All payments were made to respondent / plaintiff through applicant / Provincial Government and not by Federal Government, though claim of applicant / Provincial Government was that such amount was received through Federal Government as per agreement---When there was 18th Amendment in the Constitution, it was duty of applicant / Provincial Government to pay amount with regard to a project which fell within its territory---Claim of Province against Federation needed to be dealt independently by respective sides, which legally could not be excused to deny what the Province itself owned by entering into a clear and unambiguous document---High Court directed applicant/Provincial Government to sort out the issue and ensure payment to be made to respondent / plaintiff company---Revision was dismissed, in circumstances.

Abdul Jalil Zubedi, A.A.G. for Petitioners.

2022 M L D 1657

[Sindh]

Before Muhammad Iqbal Kalhoro and Abdul Mobeen Lakho, JJ

ASKARI BANK LIMITED---Appellant

Versus

TARA CHAND---Respondent

Criminal Acquittal Appeal No. 797 of 2019, decided on 18th March, 2022.

Criminal Procedure Code (V of 1898)---

----S.265-K---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.20(1)(a) & (b)---Wilful default---Appreciation of evidence---Appeal against acquittal---Prosecution case was that respondent availed finance facilities but did not adjust their liabilities and committed default in fulfilling the financial and contractual obligations---Respondent was acquitted by Trial Court in exercise of S.265-K, Cr.P.C.---Validity---Trial Court recorded acquittal of the respondent on two grounds, firstly, that the FIA Forensic Laboratory had opined that loan papers contained fake signatures of respondent and secondly that respondent was out of country at the relevant time---As per S. 510, Cr.P.C., in case of report of Chemical Examiner, Assistant Chemical Examiner, Serologist, Finger-print and Firearm Expert appointed by Government or of the Chief Chemist of Pakistan Security Printing Corporation Limited, if any report was issued by the said named officers in respect of various fields of sciences mentioned in it then their report could be produced in evidence without calling them and could be used as evidence in any inquiry or trial or other proceedings under Criminal Procedure Code---Handwriting science was a completely different field and a different science than the other mentioned categories of sciences--- As such, the opinion/report of the handwriting expert could not be relied upon without examining its author and without taking the same on record and exhibiting in order to provide an opportunity to the other side to cross-examine him---Record reflected that the Trial Court had acquitted the respondent while considering his travel history obtained from the FIA---However, it was observed that an attempt to disprove or at least to challenge the authenticity of document should have been provided to the other side---Plea of alibi could be substantiated through leading evidence which an accused shall, no doubt, enjoy but at his turn within meaning of S.265-F of the Code---Law favoured the disposal of cases on merits---However, it was in the interest of justice that both the parties should be provided opportunity to prove their versions by producing evidence---High Court observed that duty of the court was not only to protect innocent, but also to punish the guilty---Main consideration to be kept in view would be whether the continuance of the proceedings before the Court would be futile exercise, wastage of time and abuse of process of court or not---If on the basis of facts admitted and present on record no offence could be made out, then it would amount to abuse of process of law to allow the prosecution to continue with the trial---Record reflected that the present case was based upon documentary evidence and the evidence was yet to be recorded against the accused/respondent---Admittedly there was no bar of limitation as to the trial or the stage of the proceedings for filing an application for acquittal of the accused, but propriety required that fair opportunity should be provided to the complainant Bank to prove its case by producing evidence---Circumstances established that the jurisdiction under S. 265-K, Cr.P.C. had not been exercised properly by the Trial Court---Thus, acquittal appeal was allowed by setting aside the impugned order and matter was remanded to the Trial Court, which shall proceed from the stage at which the case stood when the application of accused/respondent under S. 265-K, Cr.P.C. was decided.

Abid Nasim for Appellant.

Tariq Hussain for Respondent.

Irfan Ahmed Memon, D.A.G.

2022 M L D 1680

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

Messrs BAYER PAKISTAN (PVT.) LIMITED through Legally Auhorized Officer and others---Petitioners

Versus

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

Constitutional Petitions Nos.D-6520 of 2018, D-3044 and D-1479 of 2020, decided on 17th January, 2022.

(a) Interpretation of statutes---

----Fiscal statutes---Charging provision---Applicability---Retrospective effect---Charging Section is to be given a strict interpretation and construed in favour of the subject so that in the event of any substantial doubt as to its application, the same is resolved in favour of taxpayer and against revenue---Levy cannot be imposed on a person from whom it is being claimed if a case does not clearly fall within the purview of charging section---Unless it is given retrospective effect either expressly or by necessary implication, every statute including an amendatory statute, operates prospectively.

Tennant v. Smith (1892) A.C. 150 (at 154); Attorney-General v. Milne (1914) A.C. 765 (781); Government of West Pakistan and others v Messrs Jabees Limited PLD 1991 SC 870; Zila Council Jehlum through District Coordination Officer v. Messrs Pakistan Tobacco Company Ltd. and others PLD 2016 SC 398; Chairman, Federal Board of Revenue, Islamabad v. Messrs Al-Technique Corporation of Pakistan Ltd. and others PLD 2017 SC 99 and Messrs Pakistan Television Corporation Limited v. Commissioner Inland Revenue (Legal) LTU, Islamabad and others 2019 SCMR 282 rel.

(b) (Sindh) Stamp Act (II of 1899)---

----Ss.2(12) & 3 [as amended by Sindh Finance Act, 2020]---Instruments chargeable with duty---Electronic Purchase Orders---Execution of instrument---Scope---Dispute was with regard to charging of duty on Electronic Purchase Orders (EPO)---Validity---Electronic Purchase Order was not a document in the sense that the word was used in 2006 Adaptation (i.e. amendment made to definition of 'instrument' by S.2(14) of the Sindh Finance Act, 2016) and did not fall within the definition of an 'instrument' in terms thereof---Electronic Purchase Orders sought to be subjected to duty were not 'executed' in the sense of the term as per S.2(12) of Stamp Act, 1899---Amendments introduced by Sindh Finance Act, 2020 were designed to address those omissions in Stamp Act, 1899, as it stood at the time--- Electronic Purchase Orders as were generated during subsistence of 2006 Adaptation did not fall within the ambit and purview of Charging Section under that legislative framework on a reasonable interpretation of law and could not be inducted through a strained construction thereof, contrary to principles elucidated in judgments of superior Courts---High Court declared that EPOs generated prior to or during subsistence of 2006 Adaptation were not covered by the Charging Section so as to be chargeable with stamp duty--- Petitioners could approach the authorities for refund/adjustment of any sums paid in that regard---Constitutional petition was allowed, in circumstances.

Mrs. Parveen Akhtar (deceased) PLD 1993 Kar. 280; M. Aslam Motiwala 1998 MLD 1254; Bayer Pakistan (Pvt.) Ltd. and others v. Board of Revenue and others 2002 CLD 823 and Shamim Akhtar v. Najma Bagai PLD 1977 SC 644 ref.

Zain Mustafa Soomro for Petitioner (in Constitutional Petition No.D-6520 of 2018).

Arshad Hussain for Petitioner (in Constitutional Petition No.D-3044 of 2020).

Raashid Anwar for Petitioner (in Constitutional Petition No.D-1479 of 2020).

Abdul Jalil Zubedi, Additional Advocate General, Sindh, in all Petitions.

2022 M L D 1712

[Sindh]

Before Muhammad Iqbal Kalhoro, J

Syed MANSOOR ALI SHAH---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.D-10 of 2021 and Confirmation Case No.12 of 2021, decided on 15th July, 2022.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-F, 337-D & 34---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, jaifah and common intention---Appreciation of evidence---Benefit of doubt---Identification parade---Recovery of weapon, delay in---Sending of empties along with pistol---CCTV footage not sent for Forensic Analysis---Effect---Accused was convicted and sentenced to death in an FIR lodged under Ss.302, 324, 337-F(iii), 337-D & 34, P.P.C.---Accused was not named in the FIR, his and his father's introduction in the case materialized only when complainant and witnesses made a further statement, after about two months of the incident, implicating them---Complainant backed out from his statement to the extent of father of accused and exonerated him---Failure of the Investigating Officer to get identification parade of the accused held before the Magistrate was still another blow imbuing streaks of doubt in the mind over allegations against the accused---Pistol was recovered after two months of the incident from an open plot not owned by the accused---Crime empties were sent along with the pistol not immediately after recovery as required by law to eliminate a chance of chicanery---CCTV (Closed-Circuit Television) footage, relied upon by the prosecution was not sent for forensic examination to confirm its authenticity and identity of the accused beyond a reasonable doubt in view of his dispute to be him in the photographs---Appeal was allowed and the accused was acquitted of the charge, in circumstances.

A.B. Francis for Appellant.

Ali Haider Saleem, Addl. P.G. for the State.

None present for the Complainant.

2022 M L D 1728

[Sindh (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui, J

FAHMEED AKHTAR---Petitioner

Versus

1st ADDITIONAL DISTRICT JUDGE, SANGHAR and others---Respondents

Constitutional Petition No.S-1961 of 2018, decided on 13th May, 2022.

Family Courts Act (XXXV of 1964)---

----S.5, Schd.---Suit for jactitation of marriage---Nikhanama---Proof---Petitioner/plaintiff filed suit for jactitation of marriage against defendant /respondent on the ground that alleged nikahnama relied upon by respondent was forged and fabricated---Petitioner filed present suit for jactitation of marriage which was decreed while maintenance to respondent was declined though no independent suit was filed ----Respondent filed appeal against said judgement and decree, which appeal was allowed by Appellate Court----Held, that in a suit for jactitation of marriage as the present one undoubtedly the burden was upon petitioner/plaintiff to show that nikahnama was a forged and fabricated document---Petitioner attempted to cite a number of documents and referred to number of exhibits to dispute and establish doubtfulness of nikhanama as well as the depositions of the witnesses which were not even looked into by Appellate Court----Pleadings of some other litigation were also exhibited which showed that the marital ties of respondent with some other man, which documents were ignored by Appellate Court without any reasoning---Prima facie there was sufficient evidence to doubt about the authenticity of the Nikahnama---Deposition on oath by the petitioner had not been substantially refuted---Respondent had to discharge some burden prima facie by examining some material witnesses shown in Nikahnama---Defendant/respondent could have diluted the evidence that petitioner deposed and presented in Family Court in a number of ways---Evidence such as alleged signatures of the petitioner on the nikahnama as well as thumb impressions of the witnesses of marriage could have been sent or asked to be sent for verification---Witness whose thumb impression was available along with CNIC was disclosed as person 'F' whereas name of the witness who saw the appointment of Advocate for the bride was not disclosed but the thumb impression could have been sent to NADRA for the verification to obtain data as to whose thumb impression it was---Original Nikhanama could have been conveniently sent by Appellate Court for verification of petitioner's signature which was not done---Appellate Court was burdened with more responsibility if a judgment was being set-aside then in case where the judgement was being upheld, as Appellate Court could agree with the reasons assigned by the Trial Court---When the judgement and decree was being set-aside then strong reasons were required to be provided by the Appellate Court----General statement was given by the Appellate Court that the Trial Court had given much weight to the evidence adduced by the petitioner being more reliable and relevant in comparison to the evidence led by the respondent---Although nothing was stated as to why the judgement was being set aside, the only factors that prevailed with Appellate Court was that some photographs were filed and exhibited, which showed that petitioner and respondent were sitting together---Such pictures alone did not disclose or establish that there could only be a relation of husband and wife between them, hence on the strength of a photograph alone without any corroborating evidence the judgement and findings of Family Court were reversed----Material evidence was still missing and the Appellate Court should have asked for it and should have signatures of the petitioner on Nikahnama for the forensic analysis which may corroborate with evidence already available on record before delivering a final verdict----Petition was disposed of accordingly and case was remanded to Appellate Court for recording additional evidence and referring Nikahnama for a forensic analysis.

Muhammad Yaseen Khaskheli for Petitioner.

Nusrat Mehmood Gill for Respondent No.3.

2022 M L D 1740

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui, J

Syed WAJID ALI SHAH---Applicant/Complainant

Versus

The STATE and 2 others---Respondents/Accused

Criminal Revision Application No.S-41 of 2020, decided on 22nd January, 2021.

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

----S.540---Penal Code (XLV of 1860), Ss.302, 337-H(2) & 34---Qatil-i-amd, rash or negligent act to endanger human life or personal safety of others, common intention---Summoning of witnesses---Scope---Application filed by complainant for summoning of witnesses who had already been examined was declined---Validity---Complainant intended to re-examine/cross-examine some of the important prosecution witnesses i.e. Investigating Officer, ASI and Inspector---Admittedly, said witnesses had been examined and cross-examined---Application for recalling said witnesses was moved after considerable delay---Complainant had shown his anxiety regarding some portion of the deposition of the said witnesses as such he intended to cross-examine them on that particular portion of their evidence---Under the provision of Art.150 of the Qanun-e-Shahadat, 1984, the Trial Court might permit a party to cross-examine his own witness but for invoking the said provision, such permission must be sought at the very time when the witness was still under oath and had deposed something contrary to the interest of the party who had produced him---If the court considered that the witnesses was speaking the truth and he was not deposing in a twisted manner and contrary to his previous statement proposefully, then the court might refuse to allow such a request---In the present case, the application was moved after weeks even months of the examination of the witnesses, as such, it was not considerable---Case of the complainant was that some important prosecution witnesses during recording of their evidence had given testimony, which was inconsistent with the interest of the complainant---In such a situation, a prosecution witness could not be impeached by declaring him hostile and permitting the counsel for the complainant or even the public prosecutor to cross-examine the said witness---Prosecution and complainant could only be justified in seeking the impeachment of a prosecution witness when during his examination-in-chief or cross-examination, he had given testimony, which was inconsistent with some previous statement by him---In the present case, the investigator and the other official witnesses had not deposed anything, which was inconsistent with any of their previous statement, as such it would not be justified to subject them to cross-examine by the complainant or public prosecutor---Revision application was dismissed.

Kabir Alam v. The State 2008 PCr.LJ 327; Yasir Sajjad v. Mst. Rani Nasir and another PLD 2020 Sindh 596; Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474 and The State through Regional Director Anti-Narcotic Force Balochistan v. Abdul Wahab and 11 others 2019 MLD 2048 ref.

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

----Art.150---Question by party to his own witness---Hostile witness---Scope---Nevertheless, in every case when a request was made for cross-examining a prosecution witness after declaring him hostile, it was under the discretion of the Trial Court to allow or disallow such a request---Article 150 of the Qanun-e-Shahadat, 1984, laid down that the Court might, in its discretion, permit a person who called a witness to put any question to him which might be put in cross-examination by the adverse party---No doubt, the credit of a witness could be impeached by the adverse party but if a party intended to impeach his own witness, the same could only be done with the permission of the Court.

Anwar Ali Lohar for Applicant.

Nadir Ali Chachar for Respondent No.2.

Deedar Ali M. Chohan for Respondent No.3.

Aftab Ahmed Shar, Additional Prosecutor General for the State.

2022 M L D 1754

[Sindh]

Before Nadeem Akhtar, J

HABIB CARPETS (PVT.) LIMITED---Petitioner

Versus

KARACHI PROPERTIES INVESTMENT COMPANY (PVT.) LIMITED (KPICPL) and 2 others---Respondents

Constitutional Petition No.S-999 of 2020, decided on 15th December, 2021.

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

----S.15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Facts not pleaded---Concurrent findings of facts by two Courts below---Misreading and non-reading of evidence---Petitioner / tenant was aggrieved of eviction order passed by two Courts below---Rent Controller held regarding alleged impairment of material value and utility of demised premises that those were used by petitioner / tenant as godown---Such was a purpose other than the purpose for which premises was let out---Validity---Respondent /landlord did not plead such fact in its eviction application nor made any such allegation therein---No point for determination was framed, nor was any evidence led in such behalf and respondent / landlord conceded to the position--- Finding of Rent Controller was beyond pleadings and evidence on record and was unjustified, uncalled for and illegal--- Both the Courts did not appreciate evidence on record in its true perspective and by not applying the law correctly, Rent Controller failed in exercising jurisdiction vested in him by law and by maintaining such illegal order, Lower Appellate Court committed a grave error in law--- High Court in exercise of Constitutional jurisdiction set aside illegal concurrent findings of two Courts below and ejectment application was dismissed---Constitutional petition was allowed, in circumstances.

Mrs. Fatima and another v. Orient Travels (Pvt.) Ltd. through Chief Executive Tenant and 2 others 2009 MLD 1033; Mst. Fakhra Begum and others v. Mst. Sadia Ashraf and others 2012 SCMR 1931; Dr. Nazar Ali v. Qutabuddin and 2 others 2007 MLD 1700; Waheed Ahmed and others v. Babar Khan and others 2016 CLC 1732 and Mst. Zahida Perveen and another v. Iftikhar Hussain and 2 others 2019 YLR 474 ref.

Zainul Abidin Jatoi for Petitioner.

Asif Ali Mastoi Respondent No.1.

IIIrd Rent Controller Karachi South and IInd Additional District Judge, Karachi South Respondents Nos.2 and 3.

2022 M L D 1767

[Sindh]

Before Nadeem Akhtar, J

GUL MUHAMMAD---Appellant

Versus

NUSRAT JAMAL---Respondent

IInd Appeal No.S-55 of 2016, decided on 29th June, 2022.

Specific Relief Act (I of 1877)---

----Ss.12, 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Document---Proof---Onus to prove---Shifting of onus---Principle---Concurrent findings of facts by two Courts below---Appellant / plaintiff filed suit for specific performance of agreement to sell, declaration and injunction---Suit and appeal filed by appellant / plaintiff was dismissed by Trial Court and Lower Appellate Court respectively--- Validity--- Lower Appellate Court erred in law by holding that agreement relied upon by appellant / plaintiff was merely a sale agreement and was not a registered document and only a registered document had sanctity attached to it--- Lower Appellate Court failed to appreciate that cause of action for filing suit for specific performance could arise only when party to agreement avoided or refused to perform his agreed part of contract and failed to transfer title of suit property through registered deed--- Burden to prove contents of document and passing of consideration did not shift upon beneficiary in case of denial of execution of such document by executor, as such principle was applicable where there was denial or rebuttal by respondent / defendant himself and or by implication--- Concurrent findings of fact could not be respected if the same were based on misreading and non-reading of evidence available on record--- High Court set aside judgments and decrees passed by two courts below and decreed the suit in favour of appellant / plaintiff---Second appeal was allowed, in circumstances.

Sajjad Ahmed Khan v. Muhammad Saleem Alvi and others (Civil Petition No.84 of 2016) ref.

Khalil Ahmed v. Abdul Jabbar Khan and others 2005 SCMR 911 rel.

Ms. Amna Usman for Appellant.

Respondent, called absent.

2022 M L D 1781

[Sindh]

Before Muhammad Iqbal Kalhoro and Agha Faisal, JJ

IQBAL AHMED RAJPUT---Petitioner

Versus

The STATE and 6 others---Respondents

C.Ps. Nos.D-92, D-93 and D-94 of 2016, decided on 18th May, 2022.

Penal Code (XLV of 1860)---

----S.489-F---Dishonestly issuing a cheque---Payment of amount mentioned in cheque---Scope---Petitioner got lodged three FIRs against the respondent under S.489-F, P.P.C.---During investigation, respondent paid the amounts mentioned in the cheques to the petitioner through pay orders, etc---Magistrate disposed of the FIRs under 'C' class, which orders were under attack---Core argument of the petitioner was that the amounts received by him were not for adjustment of amounts of cheques but were paid to him as profits on his investment---High Court observed that since there was no determination by any forum upholding the theory of petitioner, therefore, no such finding could be given---Dispute between the parties appeared to be of civil nature for settlement of accounts---Observations and conclusions of the Magistrate did not appear to be suffering from any illegality or miscalculation warranting interference by High Court in exercise of constitutional jurisdiction particularly when the petitioner had an adequate remedy available in the shape of a direct complaint on the same cause of action---Constitutional petitions were dismissed, in circumstances.

Zubair Ahmed Rajput for Petitioner.

Asif Ali Pirzada holding brief for Mallag Essa Dashti for Respondent No.3.

Khadim Hussain, Addl: PG Sindh.

Zeeshan Adhi, A.G. Sindh.

2022 M L D 1787

[Sindh (Larkana Bench)]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

RIAZ MAGSI and others---Petitioners

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-79, Criminal Conf: Case No.D-45, Criminal Jail Appeals Nos.S-115 to D-118 of 2019, decided on 3rd February, 2021.

Penal Code (XLV of 1860)---

----Ss.302, 324, 148, 149, 504 & 337-H(2)---Sindh Arms Act (V of 2013), S.25---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, intentional insult with intent to invoke breach of the peace, rash or negligent act, possession of illegal firearm---Appreciation of evidence---Prosecution case was that the accused party made firing upon the complainant party, due to which two persons lost their lives whereas two were injured---Motive behind the incident was stated to be previous land dispute---Record showed that the evidence of the complainant was recorded in presence of the accused but not in presence of his counsel---Effect---All the accused persons were illiterate and had no idea about the law and the parameters in which an examination-in-chief was to be conducted---High Court observed that during an examination-in-chief, it was mandatory for the accused to be represented by legal counsel in a capital case so that his/her rights could be protected---Without the counsel of accused, inadmissible documents could be admitted into evidence, the witness could be tutored and many other prejudicial things to the accused could come on the record since they had not been objected to/challenged by the accused which might not have formed a part of the record if his counsel had been present and might have weakened the prosecution case against him---Absence of counsel for the accused during the examination-in-chief of an accused in a capital case, would lead to remand the case to the Trial Court---Impugned judgment was set aside and case was remanded to the Trial Court for recording the evidence of complainant, which was recorded in the absence of counsel for the accused.

Shafique Ahmed v. The State PLD 2006 Kar. 377; Abdul Ghafoor v. The State 2011 SCMR 23; Ali Dino v. The State 2018 PCr.LJ 200; Irfan Ali v. The State 2018 YLR 2128 and Hidayatullah v. The State 2000 YLR 2330 ref.

Shafique Ahmed v. The State PLD 2006 Kar. 377; Abdul Ghafoor v. The State 2011 SCMR 23 and Rajab Ali v. State 2019 MLD 1713 rel.

Habibullah G. Ghouri for Appellants (in Criminal Jail Appeal No.D-79 of 2019).

Rafique Ahmed K. Abro for the Complainant.

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

2022 M L D 1815

[Sindh]

Before Ahmed Ali M. Sheikh, CJ and Yousuf Ali Sayeed, J

ORIX LEASING PAKISTAN LIMITED through duly authorized attorney---Petitioner

Versus

PROVINCE OF SINDH through Secretary Ministry of Excise and Taxation and 4 others---Respondents

Constitutional Petition No.4967 of 2018, decided on 20th January, 2022.

Stamp Act (II of 1899)---

----Ss.29, 40 & 48 [as applicable in Province of Sindh]---Constitution of Pakistan, Art.199---Constitutional petition---Purchase Order, stamp duty on---Liability to pay---Petitioner was a financial institution and was aggrieved of charging of stamp duty on Purchase Orders--- Validity--- Purchase Orders were chargeable with stamp duty, what remained in the context of Ss. 40 & 48 of Sindh Stamp Act, 1899 was ascertainment of the person from whom deficit of duties, penalties and other sums could be treated as due--- Petitioner was not absolved from responsibility for payment by virtue of agreements, and that Lessee was not the person solely liable as a consequence---High Court declined to interfere in the matter---Constitutional petition was dismissed accordingly.

Pakistan Mobile Communications Limited (MOBILINK) and others v. Province of Sindh through Chief Secretary and others 2021 CLD 629 ref.

Qazi Umair Ali for Petitioner.

Abdul Jaleel Zubedi, Assistant Advocate General Sindh along with Ghulam Abbas Naich, Chief Inspector of Stamps and Syed Muhammad Abuzar Abbas, Inspector for Stamps for Respondents.

2022 M L D 1862

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar and Muhammad Faisal Kamal Alam, JJ

SURESH KUMAR and others---Petitioners

Versus

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

C.P. No.D-1094 of 2020 along with C.Ps. Nos.D-587, 1448, 1449, 1450 of 2020 and 74 of 2021, decided on 17th February, 2021.

(a) West Pakistan Foodstuffs (Control) Act (XX of 1958)---

----S.3---Wheat Release Policy, 2020-2021---Constitution of Pakistan, Art.18---Freedom of trade, business or profession---Powers to control supply, distribution of foodstuffs---Scope---Petitioners challenged a clause in the Wheat Release Policy 2020-2021 whereby it was declared that flour mills involved in plea bargain with NAB (National Accountability Bureau) would not be allowed to buy government wheat---Validity---Respondents had entered into plea bargain with NAB---No finding was given against the petitioners and their flour mills by the Accountability Court---Petitioners' flour mills were leased out to the respondents---Authorities were not releasing Government wheat to petitioners by misinterpreting said clause on the ground that they were involved in plea bargain, which was contrary to record---Said action had adversely affected the business activities of the petitioners and they were treated differently from other flour mills operating in the province---If the petitioners/flour mills would have entered into plea bargain with NAB themselves, then said clause might have become applicable, but subject to other legal implications---Petitions were accepted only to the extent that the said clause was not applicable to the petitioners.

Balochistan Bar Association through President Balochistan Bar Association and others v. Government of Balochistan through the Chief Secretary, Balochistan and others PLD 1991 Quetta 7; Messrs Ibrar Flour Mills (Pvt.) Ltd., Multan through Chief Executive v. Province of Punjab through Secretary to Government of Punjab, Food Department, Lahore and 3 others 1997 MLD 2184; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Messrs Ahmad Traders through Sole Proprietor v. Frontier Works Organization (F.W.O.) Headquarters, Rawalpindi through Director-General and another 2008 CLC 1132; Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another 2008 SCMR 1148; Pakistan Engineering Company Ltd. through Managing Director and 2 others v. Director General, F.I.A. Islamabad, and 3 others 2011 YLR 337; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621 and Messrs Alizair Travel and Tours (Pvt.) Ltd. through Chief Executive and 10 others v. Federation of Pakistan through Ministry of Religious Affairs and 16 others 2014 CLC 1766 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Judicial review---Scope---Formulating a policy is the exclusive domain of Executive, but at the same time, when such policy violates any statutory provision or does not fulfill any condition mentioned in the statute and more so adversely affect a person's right to do lawful business and trade (as guaranteed by Art.18 of the Constitution), then such executive actions and policies can become subject matter of constitution petitions.

(c) Proportionality, doctrine of---

----Punishment should correspond to the offence.

Muslim Commercial Bank Ltd. v. Ghulam Muhammad Memon 2008 PLC (Lab.) 40, rel.

(d) Proportionality, doctrine of---

----Punishment must fit the crime.

Qurban Ali Malano assisted by Ms. Amber Iqbal for Petitioners (in C.P. No.D-1094 of 2020).

Abdul Rasheed Kalwar assisted by Ghous Bux Shah Kaheri for Petitioners (in C.Ps. Nos.D-587, 1448, 1449 and 1450 of 2020).

Mehfooz Ahmed Awan for Petitioner (in C.P. No.D-74 of 2021).

Shafi Muhammad Chandio, Additional Advocate General Sindh, Noor Hassan Malik and Zulfiqar Ali Naich, Assistant Advocate General Sindh along with Muhammad Afzal, Deputy Director Food, Sukkur for Official Respondents.

Nemo for Private Respondents.

2022 M L D 1892

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

ARIF HUSSAIN---Petitioner

Versus

UNIVERSITY OF KARACHI through Registrar and others---Respondents

C.P. No.D-6695 of 2019, decided on 17th August, 2022.

Constitution of Pakistan---

----Art.199---Educational institution---Result, cancellation of---Principle of natural justice---Petitioner was aggrieved of cancelling his Bachelor of Arts (BA) (Pass) result and withdrawing attestation of his Degree by University on the ground that he had been found guilty of tampering with his Intermediate Mark Sheet---Validity---Other than two final letters in question, all further correspondence ensued to the exclusion of petitioner---Two letters in question were issued almost a decade after the petitioner had completed his degree program---Even if it was accepted that address shown therein was one that the petitioner had given at relevant time, it was inconceivable that the same had ceased to be current---Record was silent as to how those letters were dispatched and whether the same were even received, and if so, by whom, or whether they were returned---Counter-Affidavit to the petition submitted on behalf of University also made no mention of such aspect---In both letters in question it was mentioned that petitioner had already been found culpable and punitive measure of cancellation had been taken in the matter---High Court set aside the order passed by university---Constitutional petition was allowed, in circumstances.

Justice Qazi Faez Isa and others v. President of Pakistan and others PLD 2022 SC 119 and Abdus Saboor Khan v. (1) Karachi University and (2) Controller of Examinations, Karachi University PLD 1966 SC 536 ref.

Talha Abbasi for Petitioner.

Ameeruddin for Respondent No.1.

Khaleeque Ahmed, DAG for Respondent No.2.

K.A. Wahab for Respondent No.3.

Atir Aqeel Ansari for Respondent No.4.

2022 M L D 1933

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

HAKIM-UL-DIN JOKHIO and others---Appellants

Versus

The STATE and 7 others---Respondents

Criminal Acquittal Appeals Nos.552, 597 and 598 of 2019, decided on 1st April, 2021.

Penal Code (XLV of 1860)---

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused were charged for committing murder of the deceased by firing---Held, presumption of innocence applied doubly upon acquittal such a finding was not to be disturbed unless there was some discernible perversity in the determination of the trial court that could be said to have caused a miscarriage of justice---In the absence of any such factor in the matter, the appeals were devoid of merit---Appellant being not the complainant had no locus standi to maintain acquittal appeal---Thus, the appeals were accordingly dismissed.

Muhammad Zafar and another v. Rustam and others 2017 SCMR 1639 rel.

Muhammad Ashraf Kazi and Irshad Ahmed Jatoi for Appellants (in all Appeals).

Ali Haider Saleem, APG for Respondent No.1 (in all Appeals).

Wazeer Hussain Khoso for Respondent No.2 (in Criminal Acquittal Appeals Nos.552 and 598 of 2019), for Respondent No.3 (in Criminal Acquittal Appeal No.552 of 2019 and for Respondent No.2 (in Criminal Acquittal Appeal No.597 of 2019).

2022 M L D 1941

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Tunio and Yousuf Ali Sayeed, JJ

MUHAMMAD ASGHAR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-19 of 2020, decided on 3rd March, 2021.

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

----S.9(c)---Possession of ten kilograms of charas---Appreciation of evidence---Benefit of doubt---Prosecution case was that ten packets of charas, each weighing one kilogram, was recovered from the possession of the accused---In the present case, Police party had gone for the express purpose of patrolling and checking---Accused albeit a resident of another city, was standing alone peddling drugs at a remote location on the outskirts of the city, which did not appeal to reason and good sense, and assumed significance due to the apparent conflict between the depositions of two witnesses as to the presence of private persons at place of arrest at the relevant time, who could have acted as independent witnesses---Indeed, complainant stated that no private persons were available at the scene of the offence, hence no one could be asked to act as a mashir, whereas Head Constable stated that they requested passers-by to act as mashirs, but they refused---Even the statement of accused under S.161, Cr. P.C. appeared discrepant, as it predated the date of incident and arrest---Suffice it to say, viewed in juxtaposition, said factors served to cast doubt on the veracity of the prosecution's case---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstance.

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

----S.9(c)---Possession of ten kilograms of charas---Appreciation of evidence---Chain of safe custody---Scope---Prosecution case was that ten packets of charas, each weighing one kilogram, was recovered from the possession of the accused---Chain of custody of narcotic remained shrouded in uncertainty as nothing was brought on record to demonstrate as to where the case property was kept prior to being sent for analysis---Neither the officer in charge of the Malkhana nor the official who supposedly conveyed the samples to the office of the Chemical Examiner were called upon to depose---Indeed, while complainant said that he sealed the case property and handed over the same to Investigating Officer, but went on to say that he himself took the case property to the chemical laboratory---Investigating Officer said that it was he who sent the property to the Chemical Examiner, whereas the Chemical Examiner's report reflected that the property had been received from SHO through Police Constable, who was never examined as witness---While Chemical Examiner's report had real probative value, the sanctity of the chain of custody was absolutely imperative---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.

Mst. Sakina Ramzan v. The State (Criminal Appeal No.184 of 2020) rel.

Shakir Nawaz Shar for Appellant.

Abrar Ali Khichi, APG for the State.

2022 M L D 1951

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J

ANWAR ZAIB and others---Petitioners

Versus

RETURNING OFFICER/THE CANTONMENT EXECUTIVE OFFICER CLIFTON CANTONMENT BOARD and others---Respondents

C.Ps. Nos.D-4887 and D-4907 of 2021, decided on 17th September, 2021.

Cantonments Act (II of 1924)---

----Ss.65 & 92---Cantonments Local Government (Elections) Ordinance (LXXIX of 2002), S.13---Cantonment Board, election of members---Qualification---Wilful default---Adjudication of---Petitioners/candidates were classified as defaulters of dues/arrears against properties of their residence and were returned/rejected their nomination papers---District Court (appellate authority) dismissed the petitioners' appeal---Petitioners contended that they were tenants of the premises against which arrears were due; that they were unaware of the existence of such liability, but for good measure had proceeded to promptly discharge the same by way of abundant caution; that neither of them could be deemed to be a wilful defaulter and had not been adjudged to be so---Held, that admittedly the arrears were pointed out at the time of scrutiny of the nomination papers submitted by the petitioners, which were then settled by them the very next day---Quantum in either case is not a matter of significance---Matter of petitioners' liability/willful default had never been adjudicated by a judicial forum---Impugned Orders of the fora below did not even allude to any such adjudication having taken place---Constitutional Petition was allowed and Cantonment Board was directed to accept the nomination papers of the petitioners.

Sardar Muqeem Khan Khoso v. District Returning Officer and others 2006 MLD 163 rel.

Muhammad Tariq Abbas for Petitioner (in C.P. No.D-4887 of 2021).

Syed Haider Imam Rizvi for Petitioner (in C.P. No.D-4907 of 2021).

Zaeem Haider for Cantonment Board Clifton.

Abdullah Hanjrah, Sr. Officer, Election Commission of Pakistan.

2022 M L D 1966

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

SAJID REHMAN and another---Appellants

versus

The STATE---Respondent

Criminal Appeal No.438 of 2020, decided on 21st January, 2022.

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

----S.9(c)---Possession of Narcotics---Appreciation of evidence---Prosecution case was that 23 kilograms of Garda Charas in twenty packets was recovered from cabin of oil tanker of the accused---First Information Report was lodged with promptitude giving no time for concoction and the S.161, Cr.P.C statements of the witnesses were also recorded promptly which were not significantly improved upon by any witness at the time of giving evidence---Vehicle in which the accused were travelling in and where it would be when it was stopped was based on spy information which turned out to be correct---Arrest and recovery was made from the vehicle in which the accused were travelling hidden under the driver seat and as such the accused were both caught red handed with the narcotics on the spot by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case---Most significantly the narcotics were recovered from accused whilst sitting in the truck which was being driven by one of the accused from whom a valid driving licence was recovered along with the narcotics when the truck was stopped---Beyond doubt the accused had actual knowledge of the narcotics which were being transported---Under S.29 Control of Narcotic Substances Act, 1997, once the recovery had been proven, as in the present case, the onus shifted to the accused to show his innocence in that at least he had no knowledge of the narcotics---None of the accused had been able to prove his innocence---Extremely difficult to foist such a large amount of charas being in total 23 kilograms---No delay in sending the chemical report for analysis 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---No suggestion of tampering with the same had even been made---Narcotics were sealed on the spot, remained sealed in the malkhana before being transported to the Chemical Examiner in a sealed condition as per the chemical report with the required protocols being carried out---Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

Abdul Ghani v. The State 2019 SCMR 608; Amjad Ali v. The State 2012 SCMR 577; Abrar Hussain v. The State 2017 PCr.LJ 14; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Asad v. The State 2021 YLR 254; Ibrar Ullah v. The State 2021 SCMR 128; Ali Akbar v. The State 2020 SCMR 1225 and Ghulam Qadir v. The State PLD 2006 SC 61 ref.

Mustaq Ahmed v. The State 2020 SCMR 474; Nadir Khan v. State 1998 SCMR 1899 and Mehboob-ur-Rehman v. State 2010 MLD 481 rel.

(b) Criminal trial---

----Witness---Police witness---Scope---Evidence of a police witness was as reliable as any other witness provided that no enmity existed between them and the accused.

Mustaq Ahmed v. The State 2020 SCMR 474 rel.

(c) Criminal trial---

----Evidence---Minor contradictions---Scope---Minor contradictions which do not affect the materiality of the evidence can be ignored.

Zakir Khan v. State 1995 SCMR 1793 rel.

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

----S.9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of Narcotics---Appreciation of evidence---Non-association of private witnesses---Scope---Prosecution case was that 23 kilograms Garda Charas in twenty packets was recovered from cabin of oil tanker of the accused---Allegedly, no independent mashir was associated with the arrest and recovery of the accused and narcotics, which was violation of S.103, Cr.P.C.---Section 103, Cr.P.C., had been excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S.25 of the Act---Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

Muhammad Hanif v. The State 2003 SCMR 1237 rel.

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

----S.9(c)---Possession of Narcotics---Scope---Courts are supposed to adopt a dynamic approach and not to acquit the accused on technicalities.

Ghulam Qadir v. The State PLD 2006 SC 61; 1993 SCMR 785 and PLD 1996 SC 305 rel.

Mamoon A.K. Sherwani for Appellants.

Abrar Ali Khichi, Addl. Prosecutor General Sindh for the State.

2022 M L D 1980

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar, J

LIAQUAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-03 of 2022, decided on 12th September, 2022.

Sindh Arms Act (V of 2013)---

----S.24---Possessing arms with intent to use for unlawful purposes---Criminal case, off-shoot of the main case---Acquittal of accused in the main case---Effect---When the accused was acquitted in the main case, he would become entitled to acquittal in the case, which was off-shoot of the main case---Jail appeal was allowed and accused was acquitted in the off-shoot case registered under S.24 of the Sindh Arms Act, 2013.

Manjhi v. The State PLD 1996 Kar. 345 and Yasir Chaudhry v. The State and another 2012 MLD 1315 ref.

Manzoor Hussain N. Larik and Waqar Ali Phulpoto for Appellant.

Syed Sardar Ali Shah, Additional P.G., Sindh along with ASI Muhammad Chuttal Bhelar of PS Sobhodero District Khairpur Mirs for the State.

2022 M L D 2032

[Sindh]

Before Salahuddin Panhwar, J

FAZAL HAKIM---Appellant

Versus

BASHIR KHAN and 4 others---Respondents

II-Appeal No.29 of 2015, decided on 9th April, 2021.

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

----S.42---Transfer of Property Act (IV of 1882), S. 55---Suit for reliefs of declaration, damages, directions, cancellation and injunction was filed by the appellant claiming that he was working abroad since long and used to visit periodically; that he purchased residential plot from the previous allottee; took possession of the said plot; erected boundary wall and gate; that he went back abroad before completion of the lease formalities; that he appointed his friend (private respondent) as attorney authorizing him to complete the said formalities who intimated the same to have been done; that on his return back, respondent avoided to meet him; that on verification of indenture of the lease, he came to know that the lease did not exist in his favour and did not tally with the office record---Validity---Written statements were filed by the official respondents denying therein that any title document, produced by the appellant, was not part of their record and that the same was forged---Appellant, being buyer, was required to make an inquiry about title of the seller in respect of property under sale but did not have done so, as the officials had denied such title---Witnesses produced by the petitioner failed to support sale transaction and payment made by the appellant---Appeal was dismissed accordingly.

Anwar Textile Mills Ltd. v. Pakistan Telecommunication Company Ltd. 2013 SCMR 1570 rel.

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

----S.55---Caveat emptor---Scope---Without proving the lawful existence of subject matter which, once disputed, would render the agreement as void hence, evidence for proving sale agreement by examining the witness thereof could only be material to claim damages against seller and not for enforcement to get title of such property.

Khadim Hussain Thaheem for Appellant.

2022 M L D 1

[Lahore]

Before Sultan Tanvir Ahmad, J

Mian KHURRAM SAEED---Petitioner

Versus

MUHAMMAD KHALID---Respondent

Civil Revision No.31615 of 2021, heard on 29th June, 2021.

(a) Malicious prosecution---

----Necessary ingredients---Proof---Plaintiff is required to prove 'malice' and 'reasonable and probable cause' independently in cases of 'malicious prosecution'---When issue of 'reasonable and probable cause' is not established, question of 'malice' becomes irrelevant and even otherwise Court may not be required to prove further because of failure of claimant to cross one hurdle---When 'reasonable and probable cause' is established, Court should carefully examine element of 'malice' on the part of defendant.

(b) Malicious prosecution---

----Court, duty of---Principle---To ensure that upright citizens and right minded persons of society can discharge their responsibility of reporting crimes to law enforcement agencies without any fear of being sued for 'malicious prosecution' in discharge or acquittal of accused and on the other hand to confirm that no innocent person becomes victim of false involvement in criminal litigation in the hands of persons having influence in the society due to their position, contacts or long pockets as well as to strike a balance between such two important rights of citizens---Courts must cautiously verify that one who claims damages under tort of 'malicious prosecution' must prove its all ingredients by discharging burden of proof up to requisite standard.

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

----O.XLI, R.27(b)---Criminal Procedure Code (V of 1898), S. 173---Suit for recovery of damages---Malicious prosecution---Discharge in police report---Malice, proof of---On the complaint of petitioner/defendant, criminal case was registered against respondent/plaintiff---After investigation, respondent/plaintiff was discharged from the offence--- Suit was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of respondent/plaintiff---Validity---Lower Appellate Court was drawing presumption of 'malice' from report of police officer filed under S.173, Cr.P.C. without even examining maker of the report to unearth as to the reason of discharge and that how investigating officer found respondent/plaintiff innocent during 'face to face' discussion (بلمشافہ گفتگو)---Important for respondent/plaintiff to provide possible evidence to prove entire ingredients of 'malicious prosecution' and it was duty of Trial Court to secure all possible evidence as to the elements of 'malicious prosecution' before reaching to finding and allowing damages---Finding of 'malice' on the basis of report under S.173, Cr.P.C., without examining maker of statement/report was unsafe---High Court set aside judgment and decree passed by Lower Appellate Court and remanded the matter for decision afresh after procuring evidence of concerned police officials and careful examination as to the ingredients of 'malicious prosecution'---Revision was allowed in circumstances.

Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478; Niaz and others v. Abdul Sattar and others PLD 2006 SC 432; Bharat Commerce and Industries v. Surendra Nath Shukla and others AIR 1966 Cal 388; Malik Ghulam Muhammad Awan v. Federation of Pakistan through Secretary Ministry of Finance and others 2013 CLD 733; Mst. Banori v. Jilani through Legal Heirs and others PLD 2010 SC 1186; Muhammad Yousaf v. Fazal Ellahi and 35 others 2017 MLD 1997; Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Mahmood Akhtar v. The Muslim Commercial Bank Ltd. and another PLD 1992 SC 240; Muhammad Yousaf v. Syed Ghayyur Hussain Shah and 5 others 1993 SCMR 1185; Nadeem Ahmad v. Saif-ur-Rehman and 8 others 2021 MLD 354; Crawford Adjusters and others v. Sagicor General Insurance (Cayman) Ltd. and another [2013] 4 All ER 8; Willers v. Joyce and another [2017] 2 All ER 327; Gliniski v. Mciver [1962] A.C. 726; Alam Din v. Muhammad Hussain PLD 2012 Lah. 279 and United Bank Limited and 5 others v. Raja Ghulam Hussain and 4 others 1999 PLC 106 ref.

Naveed Khalid for Petitioner.

Ahmad Hassan Khan for Respondent.

2022 M L D 25

[Lahore]

Before Sultan Tanvir Ahmad, J

ANWAR KHAN---Petitioner

Versus

Mst. BHOLI BIBI through L.Rs. and another---Respondents

Civil Revision No.31090 of 2021, heard on 19th September, 2021.

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

----S.12---Suit for specific performance---Oral agreement---Burden of proof---Un-natural conduct---Scope---Plaintiff filed suit for specific performance of oral agreement to sell---Validity---Date and time of the agreement were not mentioned in the plaint and same were not stated during the examination as well---Suit land, according to plaint, was purchased by plaintiff and his father but the plaintiff had failed to state in his examination-in-chief that his father was also part of the transaction---Plaintiff's witness could not support his claim in any manner---Plaintiff admitted that he had never seen the defendant---Remaining part of plaintiff's statement was hearsay and he had contradicted the alleged amount of consideration---One of the plaintiff's witnesses had failed to even state about complete particulars of agreement during his examination---Plaintiff had completely failed to produce confidence inspiring evidence which was inevitable to seek the specific performance of oral agreement---Petitioner was obliged, being the beneficiary of the transaction, to prove the same---Plaintiff had filed the suit after half a century of the alleged oral sale---Contents of the plaint and evidence of the plaintiff were highly implausible and against the natural conduct of the parties---No reason existed for not instituting suit for specific performance at relevant point of time---Delay of about five decades could not be attributed to anyone else but the plaintiff---Nothing was brought on record to show that the plaintiff ever made any overt act to keep the alleged oral agreement alive---Revision petition was dismissed.

Akhtar Ali Khan and another v. Settlement Commissioner, Peshawar and 4 others 1989 SCMR 506; Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Tariq Javaid and 11 others v. Muhammad Sattar 2011 MLD 832; Karamdad v. Manzoor Ahmad and 2 others 2015 CLC 157; Noor Muhammad and others v. Mst. Rabia Bibi and others 2019 MLD 1286; Muhammad Waryam v. Rehmat Ali 2007 MLD 17; Sultan Khan v. Saddar-ud-Din 2018 CLC Note 37 and Bashir Ahmad and 21 others v. Shah Muhammad and another 2010 CLC 734 ref.

Amjad Ikram v. Mst Asia Kousar and 2 others 2015 SCMR 1; Mst. Kubra Amjad v. Mst. Yaseen Tariq and others PLD 2019 SC 704 and Kabal Khan and 12 others v. Rahmanzay and others 2020 MLD 1230 rel.

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

----S.10---Oral agreement---Scope---Unwritten agreement, though recognized by the law, is required to be proved by unimpeachable and credible evidence.

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

----S.55---Effect of failure to perform when time is not essential---Scope---Even if time is not the essence of the contract, the claimant has to act reasonably and within reasonable time.

Nasir Mehmood for Petitioner.

2022 M L D 54

[Lahore]

Before Safdar Saleem Shahid, J

MAQBOOL AHMAD---Petitioner

Versus

MANZOOR HUSSAIN and 3 others---Respondents

Writ Petition No.8228 of 2017, decided on 26th May, 2021.

(a) Punjab Rented Premises Act (VII of 2009)---

----S.15---Eviction of tenant---Rent Petition---Description of demised-property in rent petition---Scope---Wisdom behind the requirement to mention in detail the description of demised-property in rent petition was to ascertain the right of the tenant and landlord over the mentioned premises---Any portion which was part of the property, but not subject to rent deed, order of Rent Tribunal would not be operative against the same---Any person under possession of such portion would not be subjected to the eviction order---Although law had given its way to exercise against such person, but the status of that person regarding his possession had to be defined/specified by the claimant/owner.

Allah Bakhsh v. Allah Yar and others 2015 CLR 1522 and Muhammad Sharif and another v. Malik Abdul Razzaq and others 2011 MLD 736 ref.

(b) Punjab Rented Premises Act (VII of 2009)---

----S.28---Appeal, filing of---Limitation---Appeal filed by the eviction petitioner before the Appellate Court was barred by time for three days---Held, that the petitioner had failed to explain the delay as required by the law, as such the same was rightly dismissed by the Appellate Court---Constitutional petition was dismissed, in circumstances.

Tariq Mahmood Bhalli for Petitioner.

Malik Abdul Wahid for Respondents Nos.2 and 3.

2022 M L D 70

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

IFTIKHAR ALI---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Revision No.19436 of 2021, decided on 9th June, 2021.

Criminal Procedure Code (V of 1898)---

----S.540---Power of court to summon material witness or examine person present---Scope---Petitioner, an accused in private complaint, assailed order passed by trial court declining the summoning of two witnesses of challan case cited in the calendar of witnesses as court witnesses in private complaint---Petitioner argued that the statements of said witnesses of challan case could not be read in evidence in the private complaint hence, they were required to be examined---Held; present case was not the one in which police challan case and the private complaint case was to be proceeded with one after the other or the private complaint case to be proceeded earlier requiring all the witnesses of police challan case to be recorded after the closure of prosecution evidence, if not examined---Both the cases were proceeding side by side---If the petitioner deemed it appropriate that the stance of subject two private witnesses should be brought on record in the private complaint as well, he would have ample opportunity to get them examined as defence witnesses---Trial Court had rightly exercised its discretion keeping in view the facts and circumstances of the case---Revision petition was dismissed, in circumstances.

Nur Elahi's case PLD 1966 SC 708 distinguished.

Asghar Ali Gill and Ijaz-ul-Hassan Mughal for Petitioner.

Asif Javed Qureshi for Respondent No.2.

2022 M L D 101

[Lahore]

Before Ali Zia Bajwa, J

NOOR MUHAMMAD KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.29847-B of 2021, decided on 1st July, 2021.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, armed with deadly weapon, common object---Bail, refusal of---Prompt FIR---Recovery of weapon---Absconsion of accused---Scope---Allegation against accused was that he along with another committed murder of one person and injured another---Accused was nominated in the promptly lodged FIR with the specific allegation---Medical evidence was in line with ocular account---Witnesses had fully implicated the accused in their statements under S.161, Cr.P.C.---Weapon of offence was recovered on the indication of accused---Accused had remained fugitive from law for a period of about ten years---Accused was found guilty during investigation---Case of accused fell within the ambit of prohibitory clause of S.497(2), Cr.P.C.---Accused had failed to point out any ill will or malice on the part of the complainant or police for his false implication in the case---Sufficient material was available on record, which connected the accused with the commission of alleged offence---Petition for grant of post-arrest bail was dismissed.

Malik Athar Yar Khan Awan for Petitioner.

Hafiz Asghar Ali, Deputy Prosecutor General for the State with Muhammad Iqbal ASI.

2022 M L D 106

[Lahore]

Before Muhammad Tariq Nadeem, J

MUHAMMAD SHARIF---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.39561-B of 2021, decided on 2nd September, 2021.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 148, 149 & 427---Qatl-i-amd, rioting, armed with deadly weapon, common object, mischief causing damage to the amount of rupees fifty---Bail, refusal of---Prompt FIR---Scope---Prosecution case was that the accused along with his co-accused had beaten the complainant's father, dragged him on the ground and that due to indiscriminate firing of accused party and panic the father of complainant lost his senses, thereafter, died in the hospital---Matter was promptly reported to the police on the same day in which the accused was nominated with the specific role of causing sota blow on the back side of right shoulder of the deceased, which injury found existent in the post-mortem report of the deceased---Doctor, in the column of opinion, had specifically observed that death had occurred due to panicanxiety attack transforming to vasovagal inhibition/shock leading to cardiac arrest due to mental trauma, death threats as well as physical assault---Such trauma was sufficient to cause death in the ordinary course of nature---Insofar as contention of counsel for the petitioner vis-à-vis attraction of S.315, P.P.C., was concerned, the argument was not tenable---Prosecution witnesses were tenacious upon their statements---Sufficient incriminating material was available against the accused---Accused was found to be fully involved in the occurrence and the club was also recovered from his possession---Accused had failed to make out a case of further inquiry---Application for grant of bail was dismissed, in circumstances.

Bilal Khan v. The State thorugh P.G. Punjab and another 2020 SCMR 937 and Yaseen v. The State 2020 SCMR 1182 ref.

Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology (seventh edition); Noor Bakhsh v. The State 2020 SCMR 1205; Muhammad Javed v. The State and another 2001 YLR 2923 and Zia Mahmood alias Mazhar v. The State and another 2012 PCr.LJ 94 rel.

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

----S.497---Bail---Tentative assessment---Scope---Evidence or material brought on record is not to be appreciated in its minute details rather the same is to be taken view of tentatively.

Imtiaz v. Azam Khan and others 2021 SCMR 111 and Syed Maqbool Muhammad v. The State 2005 SCMR 635 ref.

Mian Khurram Shahzad for Petitioner.

Nisar Ahmad Virk, DPG for the State with Sultan SI.

2022 M L D 112

[Lahore]

Before Abid Hussain Chattha, J

AMJAD SIDDIQUE---Petitioner

Versus

SNGPL and others---Respondents

Writ Petition No.33237 of 2021, heard on 3rd June, 2021.

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

----Ss.6 & 29---Complaints and suits for default before Gas Utility Courts---Procedure---Scope---Petitioner sought order restraining the Gas company/respondent (company) from en-cashing the Bank guarantee---Validity---Bank guarantee could not be stayed, therefore, no restraining order was passed against the encashment of Bank guarantee---Company was at liberty to en-cash the Bank guarantee in its discretion, however, if the company en-cashed the Bank guarantee, the amount of Bank guarantee, would be deposited with the Gas Utility Court under S.29 of the Gas (Theft Control and Recovery) Act, 2016---Amount so deposited shall be invested in the scheduled Bank in the name of company on an undertaking furnished by the company to the effect that in case the pending suits were decided against it, it shall be paid to the petitioner, as the case may be, with reasonable returns as the Gas Utility Court may determine, as required under S.29(2) of the Gas (Theft Control and Recovery) Act, 2016---Said amount would be utilized in execution of the decree that may be eventually passed in the pending consolidated suits by the parties against each other---Constitutional petition was accepted.

Imran Ahmad Malik for Petitioner.

Umar Sharif for Respondents/SNGPL.

2022 M L D 121

[Lahore]

Before Raheel Kamran, J

Messrs Sheikh GOODS TRANSPORT COMPANY and others---Petitioners

Versus

NATIONAL FERTILIZER MARKETING LTD.---Respondent

Civil Revision No.2994 of 2013, decided on 1st October, 2021.

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

----O.XVI, R.1---Suit for damages---Respondent's/plaintiff's application seeking permission to produce witness was allowed by Trial Court---Petitioner/defendant contended that name of such witness was not mentioned in the list and no good cause for omission of name was shown---Phrases "good cause" and "reasons to be recorded"---Scope---Validity---Words "or produced" in between the words "call" and "witnesses" were inserted in sub-Rule (2) of R.1 of O.XVI, C.P.C., through the Lahore High Court Amendment dated 02/10/2001---Court could allow production/summoning of the witnesses at a belated stage upon showing of a "good cause" and for "reasons to be recorded"---Application in question sought to produce witness/Deputy Manager Finance to depose and produce record pertaining to the payments made by the respondent and consequential loss/damages suffered due to non-performance of the defendants, and that such record was necessary for a just/fair decision of the case---No cause, whatsoever, was shown by the respondent for its omission to include name of such witness in the list of witnesses---Impugned order stated that application of the respondent was allowed "in the interest of justice" apparently for the reason that the respondent itself was producing the said witness voluntarily, which was an irrelevant consideration since the Lahore High Court Amendment introduced in the R.1(2) of O.XVI, C.P.C.---No findings were recorded on the importance of the witness in the trial, prejudice, if any, caused to the petitioners and inconvenience, if any, caused to the court---Permission to produce witness had been granted as a matter of routine without recording reasons showing judicious application of mind---Revision petition was accepted, impugned order was set-aside and Trial Court was directed to decide the application in question afresh.

The Australasia Bank Limited v. Mangora Textile Industries, Swat 1981 SCMR 150 and Amjad Khan v. Muhammad Irshad 2020 SCMR 2155 rel.

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

----O.XVI, R.1---List of witnesses---Omission to mention name of witness---Granting permission to produce witness at belated stage---"Good cause" and "reasons to be recorded"---Scope---Reason for omission of a name from the list of witnesses had to be legally justifiable to fulfil the requirement of "good cause", and bald claims that it was in the interest of justice or it was to facilitate the court in deciding the matter would not be a legally sufficient reason for that purpose---Such requirement had been imposed apparently to keep a judicial check on unbridled/absolute discretion of the court---What would qualify to be valid reasons for the grant of permission under O.XVI, R.1(2), C.P.C., had been a subject matter of judicial discourse---Primary focus of the Court was to be on the points: firstly, how the permission sought to produce witness not mentioned in the list of witnesses, if not granted, could curtail access to justice of the applicant; secondly, how much administration of justice was likely to be burdened in the proceedings before the court if the permission sought was granted; and thirdly, how the right to fair trial as enshrined in Art.10A of the Constitution would be curtailed by the grant/refusal of such an application---Such a focus would shift away from technical knockout of the litigants for their omissions and inefficiencies.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; The Australasia Bank Limited v. Mangora Textile Industries, Swat 1981 SCMR 150; Dr. Professor M.A. Cheema v. Tariq Zia and others 2016 SCMR 119; Amjad Khan v. Muhammad Irshad 2020 SCMR 2155 and Shumaila Mehmood v. Additional District Judge and others 2020 CLC 10 rel.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Mst. Musarrat Bibi v. Tariq Mehmood Tariq 1999 SCMR 799; Muhammad Ishfaq and others v. Additional District Judge and others 2019 CLC 183 and Ghulam Mustafa and 4 others v. Additional District Judge and 5 others 2018 CLC 1937 distinguished.

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

----O.XVI, R.1 & S.115---Revisional jurisdiction---Application allowed to produce witness not mentioned in the list of witnesses---Interim order---Expression "case decided"---Scope---No appeal was provided in law against an order allowing an application to produce any witness---Remedy of revision against such an order would depend on whether or not it could be termed as a "case decided" and whether it suffered from any illegality or material irregularity in the exercise of its jurisdiction vested in the subordinate court.

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

----S.115---Revisional jurisdiction---Interlocutory order---Scope---No absolute bar existed against entertaining revisional jurisdiction against an interlocutory order.

Nestle Pakistan Limited v. Classic Needs Pakistan (Pvt.) Limited 2006 SCMR 21 ref.

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

----S.115---Revisional jurisdiction---Scope---"Case decided"---Words and phrases---Expression "case decided" was not necessarily confined to a final order, rather it may, in particular facts and circumstances of the case, relate to an interlocutory order passed at any stage of the proceedings including an interim order requiring application of mind.

Nestle Pakistan Limited v. Classic Needs Pakistan (Pvt.) Limited 2006 SCMR 21 ref.

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

----O.XVI, R. 1---"Cards on the table"---Principle---Object of R.1(1) of O.XVI, Civil Procedure Code, 1908 was that no one should be taken by surprise in the course of the trial and parties, before commencement of trial, must be conscious, aware and fully prepared as to what kind of evidence was expected to be given by the witness of the opposite side so that they would make necessary preparations for cross-examinations etc. and to prevent any concoction and fabrication of the evidence.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 and Amjad Khan v. Muhammad Irshad 2020 SCMR 2155 ref.

Mehmood A. Sheikh for Petitioners.

Khurram Fraz for Respondent.

2022 M L D 137

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD SHAHBAZ---Petitioner

Versus

PROVINCE OF PUNJAB through Chief Secretary,Punjab and 7 others---Respondents

Writ Petition No.21192 of 2020, decided on 10th August, 2020.

Auction---

----First right of refusal---Matching of bid---Parties participated in auction of lease hold rights of an amusement park which was already in possession of respondent---Petitioner was the highest bidder but contract was awarded to respondent in exercise of condition of First right of refusal---Validity---Petitioner did not have experience in respect of running amusement park as required by authorities---Such experience was essential and necessary so as to protect lives of people especially the children coming to such recreational places for amusement purposes---Petitioner did not agitate the matter at relevant time before competent authority and kept mum, rather participated in bidding process---Respondent was in legal possession of subject matter and had right of first refusal of the highest bid and that was for him to decide whether such rate was acceptable or not---When respondent opted to retain lease on the highest bid, the authorities were under obligation to execute fresh lease in his favour and the same was done as per terms and condition of tender notice/advertisement---Such clause of advertisement was not against rights of petitioner and other participants---High Court in exercise of Constitutional jurisdiction under Art.199 of the Constitution, declined to interfere in the decision made by the authorities as there was no arbitrariness, illegality, irrationality and procedural impropriety or mala fide on their part--- Constitutional petition was dismissed, in circumstances.

Ishaq Khan Khakwani and another v. Railway Board through Chairman and others PLD 2019 SC 602; Suo Motu Case No.13 of 2009 PLD 2011 SC 619; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Ahmad Mehmood v. Government of Punjab through Chief Secretary and others PLD 2019 Lah. 206; Hakim Ali v. Province of Sindh through Secretary, Coal Mines Development Depart and 6 others 2017 CLC 979; Tarique Hussain v. Government of Sindh through Secretary Auqaf and 3 others 2017 CLC Note 185; Haji Amin v. Pakistan Trading Corporation (Pvt.) Ltd. and another PLD 2009 Kar. 112; Mrs. Irene Wahab v. Lahore Dolsesan Trust Association 2002 SCMR 300; Muhammad Akram v. Additional District Judge and others PLD 2008 Lah. 560; Ghulam Muhammad and others v. Muhammad Hussain and others PLD 2006 Lah. 223; Sapphire Textile Mills Ltd. and others v. A.P.L. Pakistan (Pvt.) Ltd. and others 2002 CLD 1767; Mst. Gul Shahnaz v. Abdul Qayyum Soomro and another PLD 2002 Kar. 333 and Gul Sher and others v. Additional District Judge, Mirpur Mathelo and others 2000 YLR 1147 distinguished.

Siraj Ahmed through L.Rs. v. Faysal Bank Limited and others PLD 2018 SC 91 rel.

Arshad Nazir Mirza for Petitioner.

Muhammad Azhar Siddique and Mian Ali Asghar for Respondent No.6.

2022 M L D 155

[Lahore]

Before Ayesha A. Malik, J

TARIQ MAHMOOD---Petitioner

Versus

VICE-CHANCELLOR, UNIVERSITY OF THE PUNJAB, LAHORE and another---Respondents

Writ Petition No.36987 of 2015, decided on 2nd March, 2021.

Constitution of Pakistan---

----Art.199---Constitutional petition---Educational Institution---Quashing of result card---Limitation---Scope---Petitioner assailed order passed by University whereby his result card was quashed---Validity---Perusal of impugned order showed that no reasons or explanation was given---Petitioner was simply informed of his disqualification---Such an order offended the principles of natural justice and due process---Furthermore there was a three year limitation on proceeding with such maters under the General Regulation of the Calendar of the University of the Punjab for the year 1998---Petitioner was proceeded against after 24 years---Explanation that the period of limitation commenced from the date of verification process was not tenable---High Court observed that University had to be vigilant of its processes and all results should be verified at the time they were determined---Once the degree was issued the University could not quash the result after the three year limitation---Constitutional petition was allowed and impugned letter was set aside.

Arshad Malik Awan for Petitioner.

2022 M L D 170

[Lahore]

Before Jawad Hassan, J

MUHAMMAD ASHRAF---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.74044 of 2019, heard on 7th September, 2021.

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

----S.7---Talaq (divorce)---Non-issuance of talaq certificate---Effect---Petitioner (ex-husband of deceased) assailed the dismissal of his application for revocation of succession certificate issued in favour of the sister of deceased---Factum of passing a decree for dissolution of marriage and the date of death of the deceased was not disputed by the parties---Stance of petitioner was that the deceased had been living with him as his wedded wife till her death as reconciliation was made between them after fifteen days of passing of the decree, which did not have legal effect because no notice in terms of S.7(1) of the Muslim Family Laws Ordinance, 1961, was sent to the Chairman Union Council concerned by the Court---Validity---Section 7 of the Muslim Family Laws Ordinance, 1961, was inserted to provide a procedure to the spouses to give another thought about their decision---Law-framer had the intention to make a flow to realize the consequences they would face after divorce but it did not mean that the Council established through such promulgation was empowered to examine the scope/validity of talaq---Significance was only to streamline the completion of process of divorce and non-following the provisions of S.7 did not affect the validity of divorce---Constitutional petition was dismissed.

Mst. Sadia Malik v. Chairman Arbitration Council and another 2017 CLC Note 166 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---High Court ordinarily is not inclined to interfere with the findings of fact recorded by the courts below, particularly when they are not shown to be contrary to record or arbitrary or whimsical.

Tariq Shakoor for Petitioner.

Muhammad Naeem Qadir for Respondent No.5.

2022 M L D 193

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Sultan Tanvir Ahmed, JJ

UMER ZAIB---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.970 of 2018 and Murder Reference No.88 of 2019, heard on 23rd June, 2021.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Un-natural conduct of eyewitnesses---Scope---Accused was charged for committing murder of the wife of complainant by inflicting churri blows---Motive behind the occurrence was that few days prior to the occurrence, the complainant had forbidden the accused to visit his house, due to that grudge, incident took place---Ocular account of the incident had been furnished by husband and brother-in-law of the deceased being eyewitnesses---Alleged eye-witnesses when returned home to take lunch, the door of their house was open and on hearing the hue and cry of the deceased, they hurriedly climbed the stairs and saw the accused inflicting chhuri blows to the wife of the complainant---Site plan showed that the assailant as well as the deceased were near northern wall of residential room whereas the alleged eye-witnesses were present inside the door of the same room---If such was the state of affairs, it was absolutely beyond possibilities that the assailant, who was only equipped with a conventional tool like chhuri was successful in making his escape good that too untouched and unscathed in the presence of two well-built male witnesses---Apart from the unnatural conduct of complainant and eye-witness it was observed that their arrival at the place of occurrence exactly at a point of time when the assailant was inflicting churri blows on different parts of body of the deceased was also a circumstance, which casted further doubt on their veracity---Circumstances established that the prosecution remained unable to prove the alleged guilt of the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

State through Advocate General Khyber Pakhtunkhaw Peshawar v. Hassan Jalil and others 2019 SCMR 1154 and Muhammad Imran v. The State 2020 SCMR 857 rel.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the spot was doubted---Scope---Accused was charged for committing murder of the wife of complainant by inflicting churri blows---None of the said closely related witnesses of the deceased dared to physically intervene in order to save the victim or apprehend the accused at the spot---Prosecution had no explanation as to why both the witnesses of the occurrence preferred to be lame ducks at the time of occurrence and did not make any resistance, whatsoever, particularly when the assailant was not equipped with any firearm tool or lethal weapon---Passive conduct of said eye-witnesses by not making any resistance or rescuing the deceased or letting the accused escape unhurt was a query which begged for explanation---Claim of alleged eye-witnesses that they had witnessed the tragedy with their own eyes was bristling with doubts from whatever angle it was looked and was creating a serious doubt with regard to their presence at the crime scene at the relevant time---Another intriguing aspect of the case badly shattering the presence of alleged eye-witnesses at the crime spot at relevant time was that according to Lady Medical Officer as well as inquest report, the eyes and mouth of the deceased were opened with her teeth exposed, meaning thereby, that deceased remained unattended for quite some time after the occurrence---Circumstances established that the prosecution remained unable to prove the alleged guilt of the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Asif v. The State 2017 SCMR 486 and Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused was charged for committing murder of the wife of complainant by inflicting churri blows---Another discrepant feature which casted further doubt in the case was that though there was no allegation of committing rape upon the deceased, but the prosecution had deposited two external vaginal swabs, two high vaginal swabs, one internal and one external anal swabs from the deceased with the Forensic Science Agency---According to Forensic DNA and Serology Analysis Report, seminal material was identified on two external vaginal swabs and traced amount of seminal material was identified on two high vaginal swabs and one external anal swab, but no DNA analysis was conducted on buckle swabs of the deceased and the accused, which showed that the prosecution itself was reluctant to bring on record the actual episode---Circumstances established that the prosecution remained unable to prove the alleged guilt of the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence might confirm the other available evidence with regard to the seat and nature of injuries, the kind of weapon used and the time of occurrence but it would not itself identify the accused.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 and Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of blood stained churri from the accused---Reliance---Scope---Accused was charged for committing murder of the wife of complainant by inflicting churri blows---Record showed that blood stained chhuri was recovered from the accused after more than one month of the incident, thus, it did not appeal to human prudence that after committing the incident, the accused would keep the chhuri, stained with human blood, in safe custody in his own house as he had ample opportunity during the above mentioned period to wash away the blood---Circumstances established that the prosecution remained unable to prove the alleged guilt of the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Basharat and another v. The State 1995 SCMR 1735 and Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged for committing murder of the wife of complainant by inflicting churri blows---Motive behind the occurrence was that few days prior to the occurrence, the complainant had forbidden the accused to visit his house, due to that grudge, incident took place---Record showed that a specific motive was set up in FIR, according to which the accused was trying to develop illicit relations with the deceased, who informed her husband/complainant about the bad intention of the accused and the complainant had forbidden him from coming in his house---Such like motive was a double-edged weapon, which was more suitable to the complainant to falsely implicate the accused---Furthermore, the untold story according to which seminal material was detected on vaginal and anal swabs of the deceased also defied the prosecution evidence regarding the motive, therefore, the prosecution remained unable to connect the accused with the murder of deceased through the motive part of its case---Circumstances established that the prosecution remained unable to prove the alleged guilt of the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating doubt is enough to extend benefit of same to the accused which too not as a matter of grace but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Raja Ghaneem Aabir Khan, Ch. Yasir Mehmood Chatha and Muhammad Ilyas Khan for Appellant.

Naveed Ahmad Warraich, Deputy District Public Prosecutor with Ijaz, S.I. for the State.

Malik Sajjad Hussain for the Complainant.

2022 M L D 212

[Lahore]

Before Rasaal Hasan Syed, J

MUHAMMAD ABBAS---Petitioner

Versus

Raja MUHAMMAD ISHAQ---Respondent

Civil Revision No.2069 of 2011, heard on 15th October, 2021.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 18---Talb-e-Muwathibat and Talb-e-Ishhad---Proof---Improvement, effects of---Respondent's suit for pre-emption was dismissed by Trial Court but in appeal same was allowed---Respondent claimed in plaint that he acquired knowledge of sale on 21/05/1995---Contention of petitioner/vendee was that respondent acquired knowledge of sale on 08/05/1995; requisite Talbs were never made; respondent was an active participant of sale transaction and had knowledge of the sale throughout---Validity---Perusal of notice showed that respondent neither mentioned the date, time or place of alleged knowledge of sale nor gave the name of informer and simply asserted that on acquiring knowledge of sale, he allegedly made announcement of his right of pre-emption---Names of witnesses were given in the context of notice of Talb-e-Ishhad which was allegedly dated 29/05/1995---Plaintiff made improvement in plaint asserting that at 07.00 a.m. he made the first announcement of pre-emptory right---Plaintiff appearing as witness made further improvements---Such improvements rendered stance of respondent highly doubtful---Witness expressed lack of knowledge in reply to suggestion regarding respondent's presence in sale transaction---Respondent was real brother of petitioner; was resident of house nearby the suit plot; admitted that petitioner was in possession of suit property and that evidence on record proved that signboard was affixed at the site after sale of plot, which fact was not cross-examined; and also the evidence on record indicated that respondent actively participated in sale transaction and was fully aware of the sale from day one---Petitioner/vendee had denied the performance of requisite Talbs in preliminary objections and also in evidence; and had denied the receipt of notice as well---Respondent did not make any effort to produce the postman who had allegedly delivered the notice particularly when the signatures on "Acknowledgement Due" were not admitted and his own witnesses had expressed in cross-examination lack of knowledge as to posting/delivery of notice---Revision petition was accepted accordingly.

Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.13---Service of notice, denial of---Duty of pre-emptor---Where Talb-e-Ishhad was disputed and receipt of notice of Talbe-e-Ishhad was denied, it was for the pre-emptor to prove through credible evidence that Talb was made in the presence of two truthful witnesses; notice of Talb-e-Ishhad duly attested by two truthful witnesses was sent through registered-post "Acknowledgement Due"; and that a notice was received by the addressee.

(c) Punjab Pre-emption Act (IX of 1991)---

----S.13---Notice---Due service---Proof---Mere sending of notice would not suffice on making Talb-e-Ishhad---Vendee must be apprised about the intentions of pre-emptor---Notice should be served upon the vendee and where the receipt of notice was denied by the vendee, pre-emptor should be obligated to prove the notice of Talb-e-Ishhad duly served upon the vendee which, if not done, the necessary component to succeed in a pre-emption suit will not have been fulfilled.

Khan Afsar v. Afsar Khan and others 2015 SCMR 311 and Mir Muhammad Khan and 2 others v. Haider and others PLD 2020 SC 233 rel.

Barrister Mukhtar Ahmad Tatry for Petitioner.

Raja Khalid Ishaq for Respondent.

2022 M L D 250

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

Mst. ZOHRAN BIBI and others---Petitioners

Versus

GHULAM QADIR and others---Respondents

Civil Revision No.14 of 2016, decided on 20th September, 2021.

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

----O.V, Rr.16, 18, 19 & O.IX, R.13---Inheritance---Ex-parte decree passed without recording evidence---Notice, service of---Application of petitioners (sister of respondents/plaintiffs) for setting aside ex-parte decree was concurrently dismissed on the grounds of limitation and due service---Validity---Report of the Process Server was not on oath---Such service was not in accordance with mandatory provisions of law---Ex-parte decree was to be set-aside if the summonses were not duly served---Process Server was not summoned and examined on oath by the Court before initiating ex-parte proceedings to testify his report of service---Summons was neither witnessed by anybody from the locality nor any independent person was reported to be present at that time nor any affidavit was given in that regard---Endorsement on the back of summons was not in prescribed manner---No mention of identifying the person served as to who had identified the defendants/petitioners---Ex-parte decree was passed without recording of any evidence---Merits of the case were not touched by the Trial Court, therefore, its recall could be considered under the provision of O.IX, R.13, C.P.C.---Respondents remained silent and moved application before revenue officers for implantation of impugned decree after 34 years thereof---Petitioners got knowledge about impugned judgment/decree through said application and limitation would start from such knowledge---No evidence available to prove knowledge of evidence otherwise---Petitioners were Parda observing illiterate village ladies and no independent advice was available to them against the opponents who were their real brothers enjoying undue influence being male members of family---Revision petition was accepted accordingly.

Syed Mazhar Shah's case 1990 MLD 1070; Haji Karamat Hussain's case 1986 CLC 6 and State Life Insurance Corporation of Pakistan v. Messrs Ibrahim Management Ltd. and others 1990 CLC 206 rel.

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

----O.V, Rr.17, 19 & O.IX, R. 6---Due service---Proof---For defending an ex-parte proceedings and decree the plaintiff had to produce the process server to prove due service when the service was denied by the defendant.

Muhammad Asghar and others v. Qamar Din PLD 2005 Lah. 240 and Muhammad Yousaf and 7 others v. Muhammad Azeem and 2 others 1989 SCMR 1998 rel.

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

----O.V, Rr.17 & 19---Due service---Presumption---Where service of summons was denied and Process Server had nowhere stated in his report that copy of the summons was delivered to the defendant, the presumption would be that defendant was not properly served.

Syed Mazhar Ali Shah v. Shah Muhammad 1990 MLD 230 rel.

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

---­-O.VI, R.15 & O.IX, R. 6---Ex-parte proceedings---Recording of evidence---Plaint not duly verified---Scope---If plaint was not verified on oath or verified through solemn affirmation before a person authorized to administer the oath, such plaint would be deemed not duly verified on oath and the Court in such a case could not pass a decree without recording of evidence.

Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 rel.

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

----O.V, Rr. 16, 17, 18 & 19---Phrase "duly served" meant the service as required by law.

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

----Arts. 164 & 181---Ex-parte decree---Application for setting aside ex-parte decree was to be submitted within a period of 30 days from the date of decree or, where summons was not duly served, when the applicant had knowledge of the decree.

Mst. Afzal Begum and others v. Y.M.C.A. Through its General Secretary PLD 1979 SC 18; Messrs Rehman Weaving Factory (regd.), Bahawalnagar v. Industrial Development Bank of Pakistan PLD 1981 SC 21; Fida Hussain Shah v. Muhammad Rafique Shah 1987 SCMR 845; Syed Muhammad Anwar Advocate v. Sheikh Abdul Haq 1985 SCMR 1228 and Muhammad Anwar v. Muhammad Masood Akhtar 1993 MLD 1889 rel.

(g) Administration of justice---

----Principles of natural justice had to be read in each and every statute unless and until it was prohibited by the wording of the statute itself---Law favoured adjudication of lis on merit and not on mere technicalities---No one was to be knocked out merely on technicalities.

Commissioner of Income Tax v. Fazal-ur-Rehman PLD 1964 SC 410 rel.

Tahir Mehmood for Petitioners.

Abdul Majeed Khan Balooch and Malik Zafar Iqbal Markund for Respondents.

2022 M L D 278

[Lahore]

Before Muhammad Tariq Nadeem, J

MUHAMMAD TANVEER---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.22244-B of 2021, decided on 12th August, 2021.

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

----S.497---Penal Code (XLV of 1860), S. 302---Juvenile Justice System Act (XXII of 2018), S. 6---Qatl-i-amd---Bail, grant of---Release of a juvenile on bail---Contradiction in ocular and medical evidence---Delay In conclusion of trial---Scope---Accused was alleged to have made straight fire shots with pistol 30 bore upon the son of complainant at different parts of his body, when he was present at cattle shed of his relative---Evidence transpired that one injury mentioned in the FIR was an exit wound, whereas, another injury narrated in the FIR was not found mentioned in the post-mortem report of the deceased---Three other injuries were not available in the autopsy report of the deceased---Accused was declared by Trial Court to be a juvenile---Section 6(5) of the Juvenile Justice System Act, 2018, provided that the period of statutory delay for release of a juvenile was six months---Statutory period in the case of accused had already lapsed and he had not contributed towards the delay in the conclusion of his trial---Petition for grant of bail was accepted, in circumstances.

Awal Khan and 7 others v. The State through AG-KPK and another 2017 SCMR 538; Saleem Khan v. The State and others PLD 2020 SC 356; Wahid Bakhsh Khoso v. The State 2006 MLD 507; Sikandar v. The State 2006 PCr.LJ 1648 and Mehar alias Mehaar v. The State 2009 PCr.LJ 47 ref.

(b) Juvenile Justice System Act (XXII of 2018)---

----S.6---Release of a juvenile on bail---Scope---Section 6(5) of the Juvenile Justice System Act, 2018, provides that the juvenile will be entitled to be released on bail if he has been detained for a continuous period exceeding six months while his trial has not been concluded, unless the delay has been occasioned by the act or omission of such a juvenile.

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

----S.497---Bail---Delay in conclusion of trial---Scope---Where a case on statutory delay in conclusion of trial is made out then ordinarily bail should not be refused on hypertechnical grounds.

Zahid Hussain Shah v. The State PLD 1995 SC 49; Adnan Prince v. The State and others PLD 2018 SC 147 and Muhammad Azeem v. The State and others 2020 SCMR 458 ref.

Rana Imtiaz Hussain for Petitioner.

Muhammad Arshad Ali Farooqi, DPG with Rashid SI.

2022 M L D 300

[Lahore]

Before Muhammad Tariq Nadeem, J

Dr. ISLAM ULLAH KHAN LODHI---Petitioner

Versus

CAPITAL CITY POLICE OFFICER and others---Respondents

Writ Petition No.49238 of 2021, decided on 9th August, 2021.

(a) Constitution of Pakistan---

----Art.199---Habeas corpus petition---Custody of minor---Scope---Petitioner craved for recovery and custody of his two daughters, one of them aged about five and half years and the other about 19 years---Validity---Minor was of tender age and she definitely needed love and affection of her mother---Mother's lap was best divine of God and the same could not be snatched without any solid and cogent justification---Mother being natural guardian could not be deprived from the custody of the minor of tender age---Other detenue appeared to be adult and was emotionally attached with her mother---High Court observed that in case of separation both the detenues would miss the love and affection of each other---In the light of statements of detenues, constitutional petition was dismissed.

(b) Islamic law---

----Custody of minors---Scope---Mother amongst all persons is the best person entitled to the custody of minor children during the connubial relationship as well as after its dissolution---Such right belongs to the mother which cannot be taken from her except for her own misconduct---Tenderness of age of minor or the weakness of his sex, renders a mother's care necessary---Islamic Law supports the mother's natural right qua the custody of the children and similarly according to the Hanafi doctrine mother is entitled to the custody of their children until they arrive at puberty.

Uzma Wahid v. Muhammad Javed Umrao 1988 PCr.LJ 1883 ref.

(c) Constitution of Pakistan---

----Art.199---Constitutional petition---Custody of minor---Scope---Ordinarily, a writ for the recovery of minors is not found to be competent against mother when there is no element of illegal custody by the mother of her own child.

Mst. Nazia Parveen v. SHO and others 2019 YLR 2244; Mst. Tabasum Akhtar v. Sabr Ali alias Taswar Ali and 2 others 2003 MLD 54; Mst. Nadia Parveen v. Mst. Almas Noreen and others PLD 2012 SC 758 and Mirjam Aberras Lehdeaho v. SHO, Police Station Chung, Lahore and others 2018 SCMR 427 ref.

Malik Sohail Imran for Petitioner.

Fayyaz Ahmad Sipra, A.A.G.

2022 M L D 323

[Lahore]

Before Jawad Hassan, J

MUHAMMAD HASSAN ARIF---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.45641 of 2020, decided on 30th June, 2021.

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

----S.12---Interlocutory order for production of minor---Interim protection of person and property---Scope---Section 12 of the Guardians and Wards Act, 1890, empowers the Court to direct a person to produce a minor before the Court and then the court can pass order for the temporary custody of the minor---It has to be kept in view that this order is only regarding temporary custody, which is usually passed at the time when the evidence is not produced before the court---Such order must be passed keeping in view the welfare of the minor, but at the same time complete judgement without recording evidence must be avoided---Order under S. 12 of Guardians and Wards Act, 1890, should not become the order passed under S. 25 of Guardians and Wards Act, 1890, determining the rights of the parties in respect of the custody of minor.

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

----S.12---Interlocutory order for production of minor---Interim protection of person and property---Scope---Order of temporary custody of the minor being interim in nature would be subject to decision of the main case---Same can be varied, altered or suspended by taking notice of all subsequent events and welfare of minor.

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

----S.12---Interlocutory order for production of minor---Interim protection of person and property---Scope---Section 12 of the Guardians and Wards Act, 1890, provides that the Guardian Court can make interlocutory order and grant the custody of the minors on interim basis---Language used in the provision clearly implies that the nature of the order so passed by Guardian Judge is interlocutory and the custody of minor granted under this provision is interim in nature.

(d) Words and phrases---

---"Interim"---Meaning.

Advance Law Lexicon 4th Edition, Volume 2 and Black's Law Dictionary, Tenth Edition rel.

(e) Words and phrases---

----"Interlocutory"---Meaning.

Advance Law Lexicon 4th Edition, Volume 2 and Black's Law Dictionary, Tenth Edition rel.

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

----S.12---Interlocutory order for production of minor---Interim protection of person and property---Scope---Order passed under S. 12 of the Guardians and Wards Act, 1890, is always dependent upon ultimate conclusion drawn by the Court while making a final determination within the contemplation of S. 25 of the Guardians and Wards Act, 1890---When the final and ultimate determination of the Guardian Court is awaited and matter is pending before it for the said purposes, determining the question of interim custody of the child within the scope of S.12 of the Guardians and Wards Act, 1890, will amount to conclusively deciding a matter, which is intermediate and temporary in nature.

Mohammad Mohsin v. Federal Government and 3 others 2017 YLR 1229 and Sardar Hussian and others v. Mst. Parveen Umer and others PLD 2004 SC 357 rel.

Mirza Hafeez-ur-Rehman, Advocate Supreme Court for Petitioner.

Muhammad Saleem Chaudhary, Advocate Supreme Court for Respondents.

2022 M L D 350

[Lahore]

Before Malik Shahzad Ahmad Khan, J

ALLAH YAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.17928 of 2020, decided on 2nd November, 2020.

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

----Ss.324 & 337-F(vi)---Attempt to commit qatl-i-amd, ghayr-jaifah-munaqqillah---Appreciation of evidence---Ocular account corroborated by medical evidence---Scope---Accused was charged that he made firing upon the complainant and injured him---Motive behind the occurrence was that the accused had suspicion that the complainant had illicit relationship with his sister---Role attributed to the accused was that of causing three firearm injuries on the body of the complainant had fully been supported by the medical evidence of the prosecution produced through Medical Officer, as there were three entry and exit wounds on the left knee and left thigh of the complainant---Nothing on the record to establish that the said injuries were self-suffered or were caused by friendly hands---Although, defence plea was that the complainant had alleged that he was first caught hold by the accused from his neck and thereafter he made fire shots at the body of the complainant, however, there was no burning or blackening around the entry wounds of the complainant which had contradicted the prosecution story---Complainant was not a static object and he could have changed his position at the time of occurrence---Medical officer had categorically mentioned that complainant was wearing blood stained green colour shalwar/qameez and bunyan at the time of examination and corresponding holes were present on his shalwar---When complainant was wearing clothes and corresponding holes were present on his shalwar then absence of burning and blackening around his entry wounds was quite natural---Injuries on the body of the complainant were the stamp of his presence at the spot at the relevant time---Appeal against conviction was dismissed accordingly.

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

----Ss.324 & 337-F(vi)---Attempt to commit qatl-i-amd, ghayr-jaifah-munaqqillah---Appreciation of evidence---Constitution of offence under S.324, P.P.C.----Injuries on non-vital put of lady---Scope---Ocular account corroborated by medical evidence---Scope---Accused was charged that he made firing upon the complainant and injured him---Defence contended that ingredients of offence under S.324, of P.P.C. were not attracted because the accused caused injuries on the non-vital parts of the body of the complainant, however, the accused repeated firearm injuries and caused as many as three entry and three exit, total six wounds, on the body of the complainant---Repeated fire shots made by the accused did not hit on the vital part of his body and as such there was no substance on the plea of defence, in circumstances---Appeal against conviction was dismissed accordingly.

Malik Muhammad Suleman Awan for Petitioner.

Ch. Muhammad Ishaq, Addl Prosecutor General for the State.

Naseem Ullah Khan Niazi for the Complainant.

2022 M L D 361

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

ALI HUSSAIN MANZOOR---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.4146 of 2021, decided on 13th January, 2022.

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

----S.37---Medical Tribunal Act (XXXIV of 2020), S.6 (11)---Admission test---Appeal to Medical Tribunal---Petitioner appeared in Medical and Dental Colleges Admission Test (MDCAT) and was aggrieved of less marks obtained in the Test---Validity---High Court perused MDCAT result and found that grievance of petitioner was correct---Pakistan Medical Commission was a Regulatory Body to regulate process of admissions to all medical colleges including private medical colleges through such mandatory test i.e. MDCAT--- Medical Tribunal was empowered under S.6(11) of Medical Tribunal Act, 2020, to hear and decide appeals within stipulated period without exception---High Court advised the petitioner to file appeal under S.37 of Pakistan Medical Commission Act, 202 read with S.6(11) of Medical Tribunal Act, 2020, before the Tribunal--- Constitutional petition was disposed of accordingly

Rida Fatima v. Pakistan Medical Commission and others 2021 LHC 5524; ABWA Knowledge (Pvt.) Ltd. through Director and another v. Federation of Pakistan, through Secretary, National Health Services and another 2021 MLD 1455 and Shaheen Merchant v. Federation of Pakistan/National Tariff Commission and others 2021 PTD 2126 ref.

ABWA Knowledge (Pvt.) Ltd. v. Federation of Pakistan and others PLD 2021 Lah. 436 and Shaheen Merchant v. Federation of Pakistan/National Tariff Commission and others 2021 PTD 2126 rel.

Hassan Raza Pasha, Advocate Supreme Court with Wajih Hassan Pasha and Mehar-un-Nisa for Petitioner.

Rashid Hanif, Deputy Attorney General with Malik Ahtesham Saleem, Assistant Attorney General for Pakistan.

2022 M L D 392

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

UMAR ZAIB---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1014-B of 2021, decided on 10th June, 2021.

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

----S.497---Penal Code (XLV of 1860), Ss. 394 & 411---Constitution of Pakistan, Art. 203---Dacoity and dishonestly receiving stolen property---Bail, refusal of---Suo motu cancellation of bail---Scope---Prosecution case was that the accused along with three others went into the house of complainant at about 12:45 a.m. while having weapons, snatched valuable articles and injured the complainant---All four accused persons were separately picked up by the two witnesses as culprits of the crime by ascribing them specific roles---Acclaimed receipt of injury by the complainant was supported by a medical report annexed with the police file---Robbed articles were also recovered from the accused persons during investigation---Accused persons were having antecedents of involvement in multiple cases of alike nature---Two of the accused persons were foreign nationals, staying in Pakistan without any valid permission---Accused person had sought bail on the rule of consistency as three of his co-accused persons were released on bail by the Additional Sessions Judge (ASJ)---High Court, while cancelling bail of said accused persons, observed that no heed was paid by ASJ to the legally flawless identification proceedings as well as to the gravity of incident in which accused after making ingress into the house at dark hours of night had inflicted dagger blow and pistol shot injury to the complainant---Bail petition of accused was dismissed and bail granted to co-accused persons by ASJ was recalled, in circumstances.

The State through Advocate-General N.W.F.P. v. Zubair and 4 others PLD 1986 SC 173 ref.

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

----S.497---Bail---Successive bail applications---Scope---Rule of fresh ground in subsequent bail applications is so inflexible that it is even made applicable in cases where, the earlier bail petition is withdrawn after some arguments.

Amir Masih v. The State and another 2013 SCMR 1524; Nazir Ahmed and another v. The State and others PLD 2014 SC 241; Muhammad Aslam v. The State and others PLD 2015 SC 41 and Ghulam Qammber Shah v. Mukhtiar Hussain and others PLD 2015 SC 66 ref.

(c) Administration of justice---

----Courts, by virtue of very purpose of their creation, are required to do justice---Expression "justice" in its broadest sense, is the principle that every individual must receive which he deserves according to law---"Justice" is a notion described as constant perpetual will to allot every man what is due to him---Every criminal wrong must be reciprocated with procedural stringency and penal consequences.

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

----S. 497---Bail---Provisions of law mentioned in FIR---Scope---Courts, even at bail stage, are not bound by the provisions of law applied in the FIR rather have to see the offence applicable from the contents of prosecution case.

Riaz Shah and another v. The State 1990 MLD 204 ref.

(e) Constitution of Pakistan---

----Art.203---High Court to superintend subordinate courts---Suo motu jurisdiction---Scope---Constitutional history of subcontinent reveals that High Courts are always bestowed with powers to supervise and control subordinate courts---Under the Constitution each High Court is empowered under Art. 203 to supervise and control all courts subordinate to it---Powers under Art. 203 of the Constitution are primarily aimed at enabling the respective High Courts to uproot gross injustice committed by any subordinate court---Powers of High Court under Art.203 of the Constitution are not to be exercised in every run of the mill case, rather the jurisdiction under the foregoing provision is to be invoked in cases of exceptional nature more importantly against orders passed in flagrant abuse of statutory and judicial directions---Sole purpose of establishing judicial system is to impart justice---Purity of administering justice, if gets polluted due to erroneous decisions or for extraneous considerations, the litigants are likely to lose faith in courts---Article 203 of the Constitution enables a High Court to supervise and control the subordinate courts on judicial as well as on administrative side---Powers under Art. 203 of the Constitution can be exercised in appropriate cases as suo motu by the High Court.

The Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ramtahel Ramanad and others AIR 1972 SC 1598 ref.

Province of Punjab through Collector, Bahawalpur v. Anwar Ali and 315 others 2000 CLC 1363 and Messrs Shaheen Air International Ltd. (SAI) and others v. Messrs Voyage De Air and others 2006 SCMR 1684 rel.

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

----Ss.435, 439 & 497---Revisional jurisdiction---Bail matters---Scope---High Court can correct a wrong done by an inferior criminal court through the powers of revision bestowed by Ss. 435 and 439, Cr.P.C.---High Court under S. 435, Cr.P.C., can call for and examine the record of any proceedings of subordinate criminal court to satisfy itself about the correctness, legality or propriety of any finding, sentence or order---Expression "may call for and examine the record of any proceedings before any inferior criminal court" used in S. 435, Cr.P.C., implies firstly that for exercising revisional powers, there is no need of any formal application and secondly it is applicable against an order as well---Language of S. 435, Cr.P.C., is explicit in nature and it exudes therefrom that High Court can examine the vires of an order passed even under S. 497, Cr.P.C.

Mushtaq Ahmad v. The State PLD 1966 SC 126 and The State v. Muhammad Nazir and others PLD 1991 Lah. 433 rel.

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

----S.497---Bail---Reasonable grounds---Scope---Expression "reasonable grounds" used in S. 497(1), Cr.P.C., is of paramount importance and has been defined as "grounds which attract every prudent mind."

Ch. Abdul Malik v. The State PLD 1968 SC 349 rel.

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

----S.497---Bail---Scope---If upon touchstone of tentative assessment, reasonable grounds to connect an accused with commission of crime entailing punishment of 10 years and above are found from record, then concession of post arrest bail is to be withheld.

Nemo. for Petitioner.

Ulfat Hussain Shah with Agha Jan and Zafar Khan (accused under notice).

Ali Abbas with Bakht Taj (accused under notice).

2022 M L D 416

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

MUHAMMAD QAYYUM ANJUM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH and 2 others---Respondents

Writ Petition No.12103 of 2014, heard on 14th June, 2021.

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

----S.10---Dower---Failure to specify the time for payment of dower---Scope---Husband claimed that although the transfer of house was promised in the Nikahnama but the same was deferred dower and the marriage between the parties was still intact, therefore, the wife was not entitled to receive the same during subsistence of marriage---Validity---Reading of Entry 16 of Nikahnama of the parties revealed that neither mode of transfer was provided for nor the time for transfer of house promised under Column No. 16 was incorporated indicating the same to be part of deferred dower, hence, there was failure to classify the house under Column No. 16 as deferred dower coupled with the omission to specify mode and time of payment thereof---By virtue of S.10, the wife was entitled to claim for the discharge of obligation, which the husband undertook in terms of entry under Column No.16---Courts below had rightly held the wife entitled to the house specified in Column No.16 of her Nikahnama---Constitutional petition was dismissed.

Saadia Usman v. Muhammad Usman Iqbal Jadoon 2009 SCMR 1458 ref.

(b) Islamic Law---

----Dower---Scope---Dower is an obligation under Holy Quran and Ahadith---Such is the amount of some monetary value to be paid by the husband to the wife at the time of marriage, part of which can be delayed or deferred according to what has been agreed between them---Specified Mahr is Mahr Musamma and unspecified is (Mahr al-Mithl)---When the dower is unspecified, it will still be an obligation and the law will award it on the demand of the wife and in such case, the amount will be determined keeping in view factors such as dower of the females of her class or of her father's family, the financial position of the groom, the social status of the bride, the prevalent custom of the time and place and the agreement that the bride and the groom can reach over the amount---Dower can also be prompt (Mu'ajjal) or deferred (Ghair Muajjal or Muwajjal)---Prompt dower is to be paid either at the time of marriage or on demand whereas deferred dower is to be paid at such date or time as may be mutually agreed between the parties and in the absence of the same, it is to be paid at the dissolution of marriage---Under Shariah there is no specification as to the nature, scope and extent of dower to be given---Holy Prophet P.B.U.H said to a man, "marry, even with (a Mahr equal to) an iron ring."---No upper limit for the fixation of dower exists in Islam---Inherent idea behind dower is that it is an obligation imposed upon the husband.

Sura Nisa, Verse No.4; Syed Sahid Ahammad, "A critical Analysis of Dower (Mahr) in Islam, 'Journal of Humanities and Social Science, Vol.21/7 (2016): 86; Asaf A Fayezzee, Outline of Muhammadan Law, 3rd Ed. London Oxford University Press; Jamal J. Nasir, "The Islamic Law of Personal Status", Chapter 4, Kluwer Law International New York, 3rd Edition 2002 (hereinafter 'Jamal J. Nasir); Narrated by Sahl bin Sa`d: Sahih al-Bukhari 5150 Book 67, Hadith 85 and Sura Nisa, Verse No. 24; Sura al Baqarah, Verse No.237 ref.

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

----Ss.5 & 10---Rules under the Muslim Family Laws Ordinance, 1961, R. 10---Registration of marriage---Dower---Form of Nikahnama---Scope---Under the Muslim Family Laws Ordinance, 1961, marriage is regarded as a civil contract and S. 5 thereof makes it necessary that the marriage shall be registered and the parties can settle their terms and conditions of marriage including dower, through said contract, for which Form II, used as Nikahnama, is prescribed in terms of R.10 of the Rules under the Muslim Family Laws Ordinance, 1961---Relevant entries in such regard can be incorporated by the parties in columns Nos. 13 to 16, of Nikahnama which relate to dower---Any entry, by way of an amount or an undertaking related to transfer of any property or other valuable such as ornaments etc., is the dower or part thereof.

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

----S.10---Dower---Scope---Entries in various columns of the Nikahnama are part of an undertaking related to the dower---In column No. 13, the word "Raqm" (amount) has been used; column No.14 also uses the word "Raqm" (amount) whereas columns Nos. 15 and 16 use the word "Mahr" (dower) that also reveals the intention of the Legislature with regard to amount of dower, which can be incorporated and settled by the parties, under columns Nos.13 and 14 and other valuables as dower under columns Nos. 15 and 16---Entries in columns Nos. 13 to 16 together become dower overall---Entry in column No. 13 of the Nikahnama is to contain the amount of dower, entry 14 envisages the break-up of such amount of dower spelled out by the parties by virtue of entry under column No. 13 into prompt and deferred whereas entry in column No. 15 may contain anything given or paid out of the amount envisaged under column 13 or in addition thereto forming as part of the dower overall---Entry under column No.16 is to also form part of the dower overall in addition to the amount/cash which may be stipulated by way of entry under column No.13 and also in addition to anything else given by way of entry under column No. 15---Entries under columns Nos. 13 to 16 of the Nikahnama envisage reflection and manifestation of the parties as to amount/Raqm and other articles and/or property given or to be given by husband to wife as the dower overall---Anything other than an amount, forming part of dower overall and incorporated under columns Nos.15 and/or 16 has also to contain the time and mode of payment and giving of the same by husband to wife---Failure to spell out the mode and time of dower contained in entry 15 and/or 16 would entail the attraction and applicability of S.10 of the Ordinance.

Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613 ref.

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

---S. 10---Dower---Scope---Entry in column No. 14 of the Nikahnama, if incorporated, will indicate the true intention of the parties in relation to the extent of amount (only) fixed as prompt and/or deferred dower---For other valuables such as gold or property, mode/time of payment is to be specified in corresponding entries/columns---If no detail about the mode of payment of the dower is specified in the Nikahnama, S. 10 of the Ordinance comes into play.

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

----S.10---Dower---Scope---Perusal of S.10 of the Ordinance brings forth the legislative fiat that where no details about the mode of payment of dower have been spelled out by the parties to confer certainty to it under the marital contract, the omission or failure of the parties to fill in and/or reflect their intention in a perspicuous manner, the legislature has stepped in to fill in such omission of the parties through S.10 of the Ordinance which clearly states that, in such like situations, the entire amount of the dower shall be presumed to be payable on demand---Statutory presumption embodied under S.10 of the Ordinance is rebuttable; however, the same has to be rebutted through positive evidence.

Syed Sajjad Hussain v. Judge Family Court and others 2019 CLC 1462 ref.

Syed Azhar Abbas Haider for Petitioner.

Muhammad Shafi Murali for Respondent No.3.

2022 M L D 444

[Lahore]

Before Muhammad Tariq Nadeem, J

Mst. AYESHA ANWAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.43499-B of 2021, decided on 27th October, 2021.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.406, 380, 448---Criminal breach of trust, theft in a dwelling house and house trespass---Pre-arrest bail, confirmation of---Civil litigation---On a dispute of Rs.2,000,000/-between the parties, complainant got a case registered against accused---Validity---Civil litigation was pending adjudication between parties---Accused filed a suit against complainant and as a counterblast complainant had lodged FIR in order to convert civil liability into criminal---Such exercise to harass, blackmail, humiliate and pressurize accused to complete nefarious designs of complainant was not permitted under law--- Culpability of accused in offences under Ss.380 & 448, P.P.C. could be determined by Trial Court after recording and evaluating of evidence---Object of pre-arrest bail was to save innocent persons from humiliating, harassment and incarceration on the basis of false implication---Pre-arrest bail was confirmed, in circumstances.

Shahid Imran v. The State and others 2011 SCMR 1614; Ubedullah v. The State 2003 PCr.LJ 1921; Haji Javed Iqbal v. The State 2004 YLR 2288; Khalil Ahmed Soomro v. The State PLD 2017 SC 730; Shahzada Qaiser Arfat alias Qaiser v. The State and another PLD 2021 SC 708; Maulana Abdul Aziz v. The State 2009 SCMR 1210; Jamal-ud-Din alias Zubair Khan v. The State 2012 SCMR 573 and Meeran Bux v. The State and another PLD 1989 SC 347 rel.

Zaman Manzoor Dogar for Petitioner.

Hafiz Asghar Ali, DPG with Irshad, ASI.

2022 M L D 454

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

IMRAN HUSSAIN and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.33826-B of 2021, decided on 30th September, 2021.

Criminal Procedure Code (V of 1898)---

----S.497---Customs Act (IV of 1969), Ss. 2(s), 16, 139, 156(1)(8), 156(1)(70), 157 & 178---Smuggling---Declaration by passenger or crew of baggage---Punishment of persons accompanying a person possessing goods liable to confiscation---Bail, grant of---Scope---Prosecution case was that the accused persons were taken into custody by the immigration and customs staff at International Airport on their arrival and that they in their baggage were carrying smuggled items---No bag tag as well as information qua the subject bags' booking in the name of accused persons was available on record---Investigation Agency could not take into possession CCTV footage or video from the system installed at the airport to prove recovery of baggage from accused persons' possession---Value of the items recovered was assessed at Rs.32,000,000/- approximately but the Investigating Officer had remained unable to point out the availability or reference of method/formula or any document according to which the value was determined prior to registration of the case---Even name of the person who had assessed the goods' value for the complainant was not given in the file while said aspect of the case was very much relevant with regard to quantum of sentence of imprisonment provided by different provisions of Customs Act, 1969---Case of accused persons was one of further inquiry into their guilt entitling them to the grant of post-arrest bail---Bail was allowed, in circumstances.

Nemo for Petitioners.

Nauman Hassan Baloch, Spl. Prosecutor for Customs.

2022 M L D 459

[Lahore (Rawalpindi Bench)]

Before Sohail Nasir, J

IFTIKHAR AHMED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1577-B of 2021, decided on 29th July, 2021.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Pre-arrest bail, confirmation of---Petitioner had taken the plea that on the day of occurrence at 06:00 pm he left his office after biometric recording---Investigating Officer visited said place of work, from where claim of petitioner was confirmed that he was free from his duty at 06:00 pm---Crime scene, according to Investigating Officer was at a distance of 20 kilometers from the office of petitioner and in a village area---Prima facie, it appeared to be an abnormal story that petitioner within 30 minutes arrived at place of occurrence, joined his co-accused, planned and committed the crime---Strange situation arose when complainant moved an application to the SHO that due to agony he could not tell the correct time of occurrence which in fact was 07:30 pm and not 06:30 pm---Statement of complainant with regard to occurrence was recorded in hospital and was completed at 10:30 pm---Even in that statement he gave the time of occurrence as 06:30 pm---Although complainant had referred the Medico Legal Report of complainant, where he alleged the time of crime as 07:30 pm, but that document could not override the complaint recorded in hospital and the FIR---Complaint showed that it was a well drafted document where details of occurrence had been provided minutely so question of confusion or missing of memory or absence of mind or slip of tongue did not arise---Petitioner was father of co-accused, whereas another accused was his son-in-law---Taking into consideration that fact also possibility of throwing of wider net by involving maximum members of a family could not be ruled out---Mala fide and ulterior motive on the part of complainant were floating on record because of change of time of occurrence by him later on, so as to come out from the challenge thrown by petitioner---Case was fit to use the extraordinary discretion of pre-arrest bail in favour of accused-petitioner---Interim pre-arrest bail already granted to petitioner was confirmed, in circumstances.

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

----S. 498---Pre-arrest bail---Scope---Grant of pre-arrest bail is an extra ordinary relief and can be exercised in extraordinary circumstances---If it has imposed certain restrictions of mala fide and ulterior motive, at the same time it provides a safeguard and shelter to the innocent person---While deciding the pre-arrest bail, court is not precluded to examine the merits of the case.

Raja Ikram Ameen Minhas for Petitioner.

Ms. Maimoona Ihsan-ul-Haq, DDPP for the State.

Mian Muhammad Arif for the Complainant.

2022 M L D 471

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

SUI NORTHERN GAS PIPELINES LTD---Petitioner

Versus

Messrs ALIZ INTERNATIONAL (PVT.) LIMITED and others---Respondents

Writ Petition No.60974 of 2021, heard on 11th October, 2021.

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

----O.XIII, Rr. 3 & 6---Qanun-e-Shahadat (10 of 1984), Art. 76---Documentary evidence, objection as to admissibility of---Suit for recovery of amount payable against gas connection, tampering of gas meters and wilful default in monthly bills---Admissibility of documents produced by respondent/plaintiff were questioned by petitioner/defendant---Trial Court rejected said application observing that evidentiary value of such documents would be checked at the time of delivery of final judgment---Original documents were allegedly destroyed/burnt and copies bearing official seal/stamp---Validity---Trial Court was required to decide the objection of admissibility of document as and when such objection was raised in the first instance instead of deferring it for future---Only exception of postponing, however, was that if admissibility of such document was dependent on receipt of further evidence---No such reasoning was manifesting from the impugned order---Finding of Trial Court that any opinion/observation about documents in question would affect/prejudice the case of any party, was unsustainable in the eye of law---Constitutional petition was allowed and Trial Court was directed to firstly decide the question of admissibility of documents in question within a period of 30 days.

Ram Rattan (dead) by legal representatives v. Bajrang Lal and others AIR 1978 SC 1393 rel.

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

----O.XIII, Rr. 3 & 6---Document, objection as to admissibility of---Principle---Objection as to admissibility of a document should be decided instantaneously as and when raised without reserving it until final decision in the case---Exception to the said rule was that objection of admissibility required resolution of complex issues, having effect of arresting progress of the mater, or if the admissibility of evidence was dependent on receipt of further evidence, in such cases the Trial Court could defer decision of such objection---Even omission to object to a document, which in itself was inadmissible in evidence, would not constitute such document in evidence.

Hemendra Rasiklal Ghia v. Subodh Mody 2008(6) ALL MR 352 rel.

Rana Zia-ul-Islam Manj along with Asim Riaz, Senior Law Officer for Petitioners.

Imran Raza Chadhar and Qasim Raza Chadhar for Respondent.

Barrister Ameer Abbas Ali Khan, A.A.G. on Court's call.

Muhammad Imran Sh., Addl. District Judge / Senior Research Officer, LHCRC

Ahmad Zia Ch., Civil Judge / Research Officer, LHCRC.

2022 M L D 488

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

ABDUL WAHID---Petitioner

Versus

MEMBER BOARD OF REVENUE and others---Respondents

Writ Petition No.1478 of 2021, heard on 8th September, 2021.

Punjab Land Revenue Rules, 1968---

----R.17---Constitution of Pakistan, Art.199---Constitutional petition---Headman (Lumbardar), appointment of---Hereditary claim---Substitution of findings---Respondent was appointed as headman (Lumbardar) after death of his real uncle---Validity---Number of factors existed which were relevant for appointment of a headman---Hereditary claim of candidates was one of those factors according to which 30 marks were awarded to a candidate falling in first blood---Respondent was nephew of deceased headman and that was the reason he was recommended by Authority concerned to be appointed as village headman on the basis of various preferential reasons including hereditary claim--- High Court while exercising Constitutional jurisdiction could not substitute its findings in order to undertake an exercise for evaluating available material to determine suitability of candidates---Competent authorities in revenue hierarchy had already considered merits of petitioner and respondent and after analyzing all pros and cons decided to appoint respondent as village headman instead of petitioner---Order of lower revenue hierarchy was questioned by petitioner up to revisional forum and then a review was filed but he failed to point out any illegality or jurisdictional defect in such orders---High Court declined to interfere in appointment of respondent as village headman as there were concurrent findings of revenue hierarchy and the same were based on proper appraisal of relevant material---Constitutional jurisdiction could only be exercised if it appeared the Court that there was some patent illegality or jurisdictional defect in the order assailed---Constitutional petition was dismissed, in circumstances.

Maobool Ahmad Qureshi v. The Islamic Republic of Pakistani PLD 1999 SC 484; Mehr Ali v. Noor Muhammad and others 2007 SCMR 1965 and Muhammad Saeed Ghulam Sarwar and another 2008 SCMR 1586 ref.

M. Nazir Ahmad v. Muhammad Aslam and others 2013 SCMR 363 and Haji Muhammad Zaman Khan v. Member Board of Revenue Punjab, Lahore and others 2013 SCMR 1595 rel.

Sardar Abdul Raziq Khan for Petitioner.

Mirza Asif Abbas, Assistant Advocate General for Respondents Nos.1 to 3.

Muhammad Asif Chaudhary for Respondent No.4.

2022 M L D 558

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

MUHAMMAD IBRAR KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.13702-B of 2021, decided on 1st April, 2021.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 324, 148, 149, 337-F(i), 337-L(2) & 34---Attempt to commit qatl-i-amd, rioting armed with deadly weapon, common object, damiyah, common intention---Bail, grant of---Rule of consistency---Further inquiry---Scope---Accused along with another was alleged to have injured a member of the complainant party by making a fire shot with his rifle on his right thigh---Accused was particularly nominated in the FIR with specific role of causing firearm injury but the fact remained that the injury was declared as falling under S.337-F(i), P.P.C., which was bailable in nature---Case of accused was one of further inquiry falling under subsection (2) of S.497, Cr.P.C---Accused was also entitled to bail on the rule of consistency as co-accused, having similar role, had already been enlarged on bail---Investigation to the extent of accused was complete and he was no more required for further investigation---Petition for grant of post-arrest bail was allowed, in circumstances.

Abid v. The State and others 2016 SCMR 907 and Fida Hussain v. The State and others PLD 2002 SC 46 ref.

Malik Muti Ullah for Petitioner.

2022 M L D 584

[Lahore]

Before Ali Baqar Najafi and Sardar Muhammad Sarfraz Dogar, JJ

ABDULLAH KHAN ---Petitioner

Versus

The STATE and others---Respondents

Criminal Appeal No.7174 of 2019, heard on 6th September, 2021.

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

----S.9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Scope---Allegation against accused was that he was apprehended from the street near Dera, who led the police party to his Dera wherefrom he got recovered charas weighing 08 kilograms---Patwari had admitted that the Dera was without boundary wall---Patwari had not recorded statement of respectables of the locality nor had he collected any document in the form of girdawari showing his control and supervision of the accused over the Dera---Complainant had admitted that he had arrested the accused from the street and then after his arrest accused had led to the recovery from the Dera---Dera, in the rural background, was a private place of common use by all the owners for agricultural affairs---Any co-owner can access the Dera, though some frequently visit there while others may not---Mere presence of accused on the place was not sufficient to hold him responsible for conscious possession---Samples were separately analyzed but the kind/type of protocols applied for the chromatography tests were not mentioned---Prosecution could not prove its case beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Hussain Shah and others v. The State PLD 2020 SC 132 and Mst. Jameela and another v. The State PLD 2012 SC 369 rel.

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

----R.6---Report of result of test or analysis---Mandatory provision---Scope---Rule 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001, is mandatory, its non-observance shall invalidate the result.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Khair ul Bashar v. The State reported as 2019 SCMR 930; Qaiser Javed Khan v. The State through Prosecutor General Punjab Lahore and another PLD 2020 SC 57 and Ikramullah 2015 SCMR 1002 rel.

Naveed Afzal Basra for Appellant.

Zafar Iqbal Chohan, Special Prosecutor for ANF for the State.

2022 M L D 607

[Lahore]

Before Rasaal Hasan Syed, J

RAJAN---Petitioner

Versus

AMJAD ALI and others---Respondents

Civil Revision No.3542 of 2014, heard on 10th December, 2021.

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

----O.VI, Rr.2 & 4---Pleadings---Facts not mentioned---Effect---Material fact has to be mentioned in pleadings and evidence is led to amplify the same---Where material fact is not pleaded in written statement, neither any evidence can be allowed nor, if recorded is admissible in law.

Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469; Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696 and Sadar Ud Din (since deceased) through L.Rs. v. Sultan Khan (since deceased) through L.Rs. and others 2021 SCMR 642 rel.

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

----Ss.42 & 54---Punjab Land Revenue Act (XVII of 1967), S.42---Suit for declaration and injunction---Mutation of sale---Blind woman, transfer from---Duty of revenue authorities---Petitioner / plaintiff was a blind woman who alleged that her land was fraudulently got transferred by respondents / defendants---Suit was decreed by Trial Court but Lower Appellate Court dismissed the same---Validity---Held, if an infirm and disabled person appeared regarding transaction, public functionaries had to show responsibility in looking after their affairs in public interest---Patwari or Tehsildar was to be extremely cautious when a blind woman was produced before them without her close relatives and they had to be extra careful---Neither Patwari Halqa nor Tehsildar mentioned factum of blindness of the lady in report of Roznamcha at the time of attestation of mutation---Two revenue officials admitted that lady who appeared before them was of sound health and was not a blind woman---Mutation and report Roznamcha Waqiati were result of fraud---Lower Appellate Court ignored reasoning recorded by Trial Court---High Court set aside the judgment and decree passed by Lower Appellate Court as the same was result of error of law and jurisdiction and misreading and non-reading of evidence on record---High Court restored judgment and decree passed by Trial Court---Revision was allowed, in circumstances.

Ghulam Shabbir and another v. Sikandar Shah and another 1999 CLC 576; Mst. Asia Khatoon v. Khan Shareen 2015 YLR 435; Rana Liaqat Ali and 10 others v. Mst. Azizan and 5 others 2016 CLC 736 and Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225 rel.

Muhammad Ijrar Haider for Petitioner.

Aamir Shafiq Ch. for Respondents.

2022 M L D 634

[Lahore]

Before Abid Aziz Sheikh, J

MUHAMMAD FAIZAN RAZA---Petitioner

Versus

The JUDGE, FAMILY COURT and others---Respondents

Writ Petition No.46766 of 2021, decided on 23rd October, 2021.

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

----S.14(2)---Maintenance of minors, enhancement of---Appeal/adequate alternate remedy, availability of---Constitutional petition---Maintainability---Contention that appeal was not available against maintenance allowance for minor---Held, that settled law was that non-provision of appeal under S. 14(2) of the Family Courts Act, 1964, was to protect under-privileged/generally oppressed section of society from prolonged/costly litigation---Minor, indeed fell within that category, hence denial of appeal under S. 14(2) of the Act, was for the protection of the minor and not vice versa---Any other interpretation of S.14(2) of the Family Courts Act, 1964, would defeat the very purpose/object of the said Act and would frustrate the beneficial nature of the said provision---Remedy of appeal/adequate alternate remedy was available to the petitioner/minor for the enhancement of maintenance allowance---Constitutional petition was dismissed.

Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh and another 2006 SCMR 100 rel.

(b) Constitution of Pakistan---

----Art.189---Precedent---Rations decidendi---Expression "ratio decidendi" was the ground or reason of decision and the point in a case which determined the judgment---Held, it was the "ratio decidendi" which was applicable to subsequent cases presenting the same problem.

Muhammad Zahid, Proprietor Plus Enterprises v. Federal Board of Revenue through Chairperson, Islamabad and 5 others 2021 PTD 80; S. Nasim Ahmad Shah and 115 others v. State Bank of Pakistan through Governor and another 2017 PTD 2029; Pakistan Lawyers' Forum through General Secretary v. Federation of Pakistan, Ministry of Law and Justice Parliamentary Affairs and Human Rights, Islamabad and another PLD 2011 Lah. 382; Zafar Ahmed Khan v. Federation of Pakistan through Secretary, Ministry of Defence, Islamabad and 2 others 2009 PLC (C.S.) 415 rel.

Mahmood Tahir Ch. for Petitioner.

2022 M L D 645

[Lahore]

Before Anwaar Hussain, J

HAMEEDAN BIBI and others---Petitioners

Versus

MANZOOR UL HAQ MALIK and others---Respondents

Civil Revision No.769 of 2010, decided on 20th August, 2021.

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

----S.8---Recovery of possession---Property sold more than share in joint khata---Respondents instituted suit for declaration with prayer to declare the impugned sale deed as illegal based on fraud etc. since seller had lesser share in joint khata, which was decreed by trial Court---Predecessor-in-interest of petitioners filed separate suit seeking possession of suit property on basis of impugned sale deed being prior in time, which was dismissed---Petitioners' appeals and subsequent revision petitions were dismissed either---Validity---Respondents' sale deed was not challenged rather the possession was prayed for in the petitioners' suit---Record showed the suit property falling in joint khata---Co-sharer was not entitled to alienate more than his share in the joint holding---Sale deeds of two vendees by two different vendors in a joint khata to the extent of shares of their respective vendors were not necessarily/invariably mutually exclusive rather the vendees step into the shoes of their vendors respectively and become co-sharers---Title to the extent of land under entitlement of the purported vendees of the predecessor-in-interest of the petitioners was under dark clouds, which the beneficiary was bound to prove through positive evidence---Petitioners as legal heirs could resort to legal course only against such respondent or her attorney who executed the petitioners' sale deed even though she had title in property lesser than that mentioned in sale deed---No cloud as to the ownership and possession of the respondents in the said khata---Impugned sale deed and that of respondents were executed by two different vendees in a joint khata, though mentioning same khasra numbers and such fact alone could not render both the sale deeds mutually destructive as the petitioners and respondents had been considering it---Any transfer out of joint khata even with regard to a specific khasra numbers was always subject to final adjustment by way of partition---Impugned sale deed had been thrown under the dust of illegality without considering/determining the issue to the extent of the admitted legal share of vendee of the predecessor-in-interest of the petitioners---Revision petition was allowed and concurrent findings to the extent of declaring impugned sale deed void, bogus and fraudulent were set aside with clarification that the impugned sale deed would not operate against the right of the respondents qua the suit property by virtue of the respondents' sale deed.

Munawar Hussain v. Amanat Ali and others PLD 2007 Lah. 83 rel.

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

----S.42---Chaant, value of---Patwari, duties of---Chaant was prepared by a halqa patwari, who worked in one or more patwar circle by maintaining various registers including register daakhil kharij (inteqalaat) which primarily was the transfer record in a patwar circle that would archive all land transactions---On basis of such Register Daakhil Kharij (inteqalaat) that a chant was prepared, as a part of practice, so as to ascertain the exact status of transactions, which a seller made in his entire khata---Perusal of chant would enable the third parties to understand/examine the status of share of a person in a khata before dealing with the same and hence, could not be termed as something in violation of any provision of law.

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

----S.39---Party not executant of instrument---Suit for cancellation---Maintainability---Suit for cancellation of an instrument by a third party which was not executant of the instrument was not maintainable---Proper remedy in such case was a suit for declaration.

Anjuman-e-Khuddam-ul-Qur'an, Faisalabad through President Qur'an Academy v. Lt. Col. (R) Najam Hameed and 3 others PLD 2020 SC 390 rel.

Malik Noor Muhammad Awan for Petitioners.

Muhammad Ayub Shaheen for Respondents.

2022 M L D 663

[Lahore (Multan Bench)]

Before Ali Zia Bajwa, J

IMTIAZ AHMAD and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.191 and Criminal Revision No.138 of 2016, decided on 8th November, 2021.

(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---Contradictions in the statement of complainant---Accused was charged for committing murder of the complainant's son and injuring another person by firing---Ocular account consisted of three witnesses including complainant and the injured---Perusal of the record revealed that contents of complaint filed by the complainant and that of the FIR were at variance---No one was nominated by the complainant in crime report despite the fact that accused and other co-accused persons were very well known to the complainant---Although, complainant tried to make up for such deficiency through supplementary statement and contended that he got recorded names of accused in crime report too but Investigating Officer, with mala fide intention and being in league with the accused persons, did not mention their names therein---Said contention did not attract to a prudent mind, because if Investigating Officer was that much aligned with the accused side then why would he record the supplementary statement of complainant, having names of accused persons, on the same day and also record statements of the other prosecution witnesses in line with that supplementary statement---In the crime report complainant mentioned the features of unknown assailants in detail therefore, supplementary statement recorded by the complainant, seemed to be the result of deliberation and consultation, especially when it was an admitted fact that all the accused persons nominated through supplementary statement were previously very well known to complainant and other prosecution witnesses---Said fact alone created a serious dent in the prosecution story---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Akhtar Ali and others v. The State 2008 SCMR 6 and Kashif Ali v. The Judge, Anti-Terrorism Court No.II, Lahore and others PLD 2016 SC 951 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---Contradictions in the statements of witnesses---Accused was charged for committing murder of the complainant's son and injuring another person by firing---Perusal of record revealed that although witnesses had nominated the accused persons in their statements under S.161, Cr.P.C. but statement of one witness, as per his own version, was recorded on 17.11.2011, while as per the version of Investigating Officer statements of all the witnesses were recorded on the same date i.e. 11.11.2011---Said aspect dented the credibility of statements of witnesses and from recording of those statements after the supplementary statement of complainant, it could easily be inferred that statements of witnesses were recorded after due deliberation and that nomination of accused and other co-accused was a result of forethought---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Muhammad Rafique and others v. The State and others 2010 SCMR 385 rel.

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

----Ss.302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Accused was charged for committing murder of the complainant's son and injuring another person by firing---Complainant alleged, in his complaint and while deposing before the court, previous enmity inter se the parties to be the motive that resulted in the occurrence in question---Held, that accused and co-accused had no direct grudge against the complainant, injured or deceased---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

(d) Criminal trial---

----Motive---Scope---Motive is always considered as double edged weapon, on one hand if it gives a reason or motivation to the accused to commit the crime, on the other hand, it equally provides impetus to the complainant to falsely implicate the accused in the case---Motive alone, as a corroborative circumstance to support the ocular evidence cannot be relied upon to convict an accused when the ocular testimony is neither credible nor worthy of reliance---Motive is not substantive piece of evidence rather same is merely a circumstance, which might lead the accused to commit the occurrence.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 and Akbar Ali v. The State 2007 SCMR 486 rel.

(e) Criminal trial---

----Witness---Statement of injured witness, reliance upon---Scope---Injuries on the person of a witness may established his presence at the spot but his statement could not be taken as a gospel truth.

Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----Ss.302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Medical evidence---Accused was charged for committing murder of the complainant's son and injuring another person by firing---Post-mortem Examination Report transpired that injury attributed to the accused was present on the person of deceased but medical evidence was just a confirmatory piece of evidence and it could only declare seat and nature of injury, kind of weapon used for causing such injury, probable duration between injury and death but it could not identify the assailant who caused such injury---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Sajjan Solangi v. The State 2019 SCMR 872 rel.

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

----Ss.302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Lack of forensic analysis report with respect to recovered weapon---Accused was charged for committing murder of the complainant's son and injuring another person by firing---Although .12 bore pistol was recovered on the disclosure and pointing out of accused from his house but there was no report of forensic analysis containing opinion of Ballistic Expert to the effect that cartridge of .12 bore, taken into possession from the place of occurrence, was fired from the pistol allegedly recovered on the pointing out of the accused---Alleged recovery of .12 bore pistol was also of no avail to prosecution case as recovered weapon was different from the weapon, which was shown to be carried by the accused in the crime report at the time of occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

(h) Criminal trial---

----Heinousness of offence---Scope---Mere heinousness of crime should not sway the court to deviate from the settled principles of criminal justice system.

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there should be several circumstances creating doubt qua the story of prosecution, rather one reasonable doubt is sufficient to acquit an accused, not as a matter of grace but as a matter of right.

Najaf Ali Shah v. The State 2021 SCMR 736; Mst. Asia Bibi v. The State PLD 2019 SC 64; Tariq Pervaiz v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048; Abdul Jabbar v. State 2010 SCMR 129 and The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873 rel.

Malik Amir Manzoor Awan for Appellant.

Ansar Yasin, Deputy Prosecutor General for the State.

Sahibzada Muhammad Nadeem Fareed for the Complainant (for Petitioner in Criminal Revision No.138 of 2016).

2022 M L D 678

[Lahore]

Before Shahid Bilal Hassan, J

Mst. ANWARI BEGUM---Petitioner

Versus

MUHAMMAD AKRAM---Respondent

Civil Revisions Nos.3438 and 3439 of 2012, decided on 8th June, 2021.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Gift---Scope---Petitioner as well as respondent claimed ownership over the disputed property on the basis of alleged gifts made by their father, registered in favour of petitioner and oraly in favour of respondent---Validity---Petitioner had failed to plead and prove as to when, where and in whose presence the offer was made, which was accepted and there-after possession was delivered, though in such eventuality constructive possession was considered but the same was also lacking in the case---Petitioner could not produce the revenue officials so as to prove that father of the parties had appeared before them and had got the gift deed registered in favour of the petitioner---Respondent, on the other hand, also could not prove as to where the offer was made, which was accepted and possession was delivered to the respondent, because in such like cases of oral gift or agreements, unimpeachable, cogent, confidence inspiring and reliable evidence was required to be produced---Respondent while recording his statement in the court had got recorded his age as 45 years, meaning thereby that at the time of alleged gift in the year 1978, he was aged about 12 years, but during cross-examination he claimed his age at that time as 24/25 years, which was sufficient to declare him a liar and not trustworthy---Courts below had misread and non-read the evidence on record and had committed material illegalities and irregularities while passing the decree in favour of respondent declaring him to be owner in possession of the disputed property on the basis of oral gift---Revision petition was allowed, property was reverted back to the deceased father of the parties and had to be devolved upon the parties according to their shares in accordance with law.

Muhammad Iqbal Awan and Ejaz ul Hassan Mughal for Petitioners.

2022 M L D 688

[Lahore]

Before Ch. Muhammad Iqbal, J

FAYYAZ-UL-HAQ and others---Petitioners

Versus

GHULAM NABI (DECEASED) through his legal heirs and others---Respondents

Civil Revision No.384 of 2012, heard on 14th October, 2021.

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

----Ss.202 & 206---Qanun-e-Shahadat (10 of 1984), Art. 113---Power of attorney, revocation of---Suit for declaration---Petitioners/plaintiffs alleged that they executed general power of attorney in favour of their relative defendant on 09/04/1994 but revoked the same vide revocation deed on 28/09/1994---Respondent/defendant alienated suit property through oral sale mutation dated 30/10/1994 and further exchange mutations were executed qua the same property---Petitioners contended that respondent was not competent to execute sale after revocation of general power of attorney---Suit was concurrently dismissed---Validity---Admittedly, three of the petitioners had not signed the Ibtaal Nama/revocation deed, as such to their extent the said power of attorney was still intact---Power of attorney was issued against receipt of consideration amount of land from attorney and necessary dues were paid and document was got registered as per law and same was liable to be treated as sale deed---Said power of attorney could not be revoked until an adverse declaration was obtained from competent court of jurisdiction---After payment of total consideration amount, respondent became owner of suit property and attorney/respondent was competent to alienate the same, whereas petitioners were not competent to cancel power of attorney after receiving total consideration---Agreement mentioned that the agreement/power of attorney had been executed in favour of respondent, as such the same was admitted, which could not be revoked without issuance of notice/observing procedure of revocation of sale deed---Facts admitted need not be proved---Petitioner's counsel produced documentary evidence which was not a valid tender of documents in evidence---Such documents could not be relied upon as valid piece of evidence and such documents were liable to be excluded from taking into consideration---Revision petition was dismissed accordingly.

Abdul Rahim v. Mukhtar Ahmad and 6 others 2001 SCMR 1488; Mst. Hajran Bibi and others v. Suleman and others 2003 SCMR 1555; Muhammad Aslam and others v. Absar Fatima and others 2011 CLC 1521; Mst. Nur Jehan Begum through LRs v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Chief Engineer, Irrigation Department, N.W.F.P. Peshawar and 2 Others v. Mazhar Hussain and 2 others PLD 2004 SC 682; Mst. Rehmat and others v. Mst. Zubaida Begum and others 2021 SCMR 1534; Mst. Hameeda Begum and others v. Mst. Irshad Begum and others 2007 SCMR 996; Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others 2017 SCMR 172 and Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715 rel.

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

----Ss.202 & 206---Power of attorney, rescission/revocation of---Principles---Power of attorney could only be rescinded after serving a notice upon the attorney and any revocation of the attorneyship without notice to the attorney would be illegal.

Muhammad Tufail v. Muhammad Younas and others 2006 CLC 779 rel.

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

----S.115---Revisional jurisdiction---Concurrent findings/judgements---Scope---Concurrent findings of fact were against petitioner which did not call for any interference by High Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction.

Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 rel.

Ijaz Ahmad Chadhar for Petitioners.

Sajid Amaan Barki for Respondents.

2022 M L D 697

[Lahore (Multan Bench)]

Before Sohail Nasir, J

MUHAMMAD UMAR---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No.88-J of 2015, heard on 17th August, 2021.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical and ocular account---Contradictions---Accused was charged that he along with co-accused committed murder of the father of complainant by firing---Medical Officer who conducted the post-mortem examination of deceased found two injuries on his body---In cross-examination, said Medical Officer admitted that blackening was caused as a result of fire shot when the victim was at a three feet distance from the assailant---Complainant facing the challenge of cross-questioning categorically replied that the distance between his father and assailant was 2½ karams when his father received the fire shot---Admittedly, 2½ karams meant fourteen feet---In scaled site plan the distance between deceased and accused had been mentioned as three karams at the time of firing. which was not disputed as 16.5 feet---Serious contrast existed in medical and ocular account of the case---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Amin Ali and another v. The State 2011 SCMR 323; Muhammad Zaman v. The State and others 2014 SCMR 749 and Muhammad Mehboob v. The State 2021 SCMR 366 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 was charged that he along with co-accused committed murder of the father of complainant by firing---Record showed that the police station was at a distance of about seven kilometres from crime scene---Real father of complainant and brother-in-law of eyewitness was shot dead by accused at about 05:30 p.m. but before arrival of police---None of them or any other person present at crime scene bothered to inform the Police---Said fact was admitted by complainant without any reservation in cross-examination while replying that neither he nor eyewitness or his brother reported the matter to the police---Complainant had shown his ignorance as to who informed the police about the occurrence---Said fact that none of the witnesses informed the police was also supported on perusal of the statement of Police Official---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---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---Benefit of doubt---Accused was charged that he along with co-accused committed murder of the father of complainant by firing---Serious discrepancy existed about recording of complaint by Police Official, as to whether it was reduced into writing at crime scene or the story was otherwise---When Police Official was confronted in cross-examination with the stance he took in his examination-in-chief, he volunteered that he had committed mistake while stating that the statement of complainant was recorded by him at bridge Khaddar canal but the same was recorded by him at the place of occurrence---Narrations made by complainant and eyewitness were that accused along with his two acquitted co-accused came on a motorbike but escaped by leaving it there---Said fact absolutely appeared to be an abnormality in prosecution's story, because accused was residing in a village that was at a distance of 15/16 kilometres---Accused and co-accused were armed with pistols and they had no fear of anyone therefore, leaving the motorbike at venue of crime made no sense at all---Version of accused he made in his statement under S.340(2), Cr.P.C, that his motorbike was removed by the police from his house and planted on him could not be ruled out---Complainant claimed that while escaping from crime scene, accused and co-accused also made firing in the air but except one, no empty whatsoever was found on spot inspection---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

James Joseph for Appellant.

Ansar Yasin, Deputy Prosecutor General for the State.

2022 M L D 714

[Lahore]

Before Shahid Karim, J

The BANK OF PUNJAB through Authorized Representative---Petitioner

Versus

OFFICE OF THE OMBUDSPERSON (MOHTASIB),PUNJAB and others---Respondents

Writ Petition No.14724 of 2021, decided on 15th September, 2021.

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

----S.6---Appeal against minor or major penalty---Modification in penalty---Discretionary jurisdiction---Scope---No provision in the Protection Against Harassment of Women at the Workplace Act, 2010, empowers the Ombudsperson to reduce the penalty without reasonable cause and in case the discretion has to be exercised it must be based on proper and rational grounds by reference to the powers conferred upon the Ombudsperson while deciding an appeal---In case the Ombudsperson seeks to vary or modify the decision, it must be done after concluding that some shortcomings had crept in the findings of the inquiry committee which entailed reduction of the penalty---Only upon such a finding having been returned the Ombudsperson as the appellate authority may award any of the penalties given in S.4 subsection (4) of the Act and thereby vary or modify the decision to that extent.

Barrister Qadir Bukhsh, Abdul Rehman Goraya and Sardar Munir Hussain Dogar for Petitioner.

Shehbaz Saleem Siddiqui for Respondent No.2.

Faizan Tariq Sher for Respondents Nos.3 and 4.

2022 M L D 722

[Lahore]

Before Muhammad Tariq Nadeem, J

TAZEEM BUTT and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No.2439 of 2022, decided on 4th February, 2022.

Punjab Arms Rules, 2017---

-----R.31---Cancellation of licence---Opportunity of hearing---Scope---Petitioners challenged the vires of order passed by Deputy Commissioner whereby licences of arms issued in their favour were cancelled---Validity---Rule 31(3) of Punjab Arms Rules, 2017, provided that before cancellation of arms licences, Deputy Commissioner should give a reasonable opportunity of being heard to the licensee, however, he could dispense with the condition in extra-ordinary circumstances to be recorded in writing or where he was of the opinion that delay would mean continuation of any illegal activity but in the present case, Deputy Commissioner had not described any reason for not giving the right of audience to the petitioners nor any emergency condition was mentioned in the order, which constrained him to straightaway cancel licences of the petitioners---No one could be condemned unheard---Deputy Commissioner had not followed the law on the subject of cancellation of arms licences---Constitutional petition was allowed, in circumstances.

Abu Zar Salman Khan Niazi, Faiz Ullah Khan Niazi, Barrister Taha Salik and Zain Sheikh for Petitioners.

2022 M L D 731

[Lahore]

Before Safdar Saleem Shahid, J

SAMIA ANWAR and another---Petitioners

Versus

NASIR HUSSAIN and 2 others---Respondents

Writ Petition No.32224 of 2015, decided on 10th January, 2022.

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

----S.5, Sched.---Suit for recovery of maintenance, delivery charges and dowry articles---Petitioner/plaintiffs (wife) claimed that respondent (husband) behaved cruelly and ousted the petitioner from his house (in 4th month of marriage); that minor was born out of wedlock; that respondent was working abroad and owned land and could pay maintenance of Rs.30,000/- per head/per month; that he pronounced divorce; that he had refused to pay maintenance and delivery charges of Rs.40,000/- incurred by petitioner---Respondent, in written statement, alleged that petitioner left his house nearly 4 years after marriage and refused to rehabilitate; that on petitioner's demand, he pronounced divorce on 20/05/2013; and that he was ready to return dowry articles as per his list attached with written statement---Trial Court decreed suit holding the wife entitled to recover of Rs.7000/- per month as maintenance till the period of Iddat, whereas minor was held entitled to Rs.7000/- per month from the said date; and suit to the extent of recovery of delivery expenses was dismissed---Appeals filed by both parties were dismissed by District Court---Held, that matter regarding recovery of dowry articles was settled during pendency of suit---Petitioner/wife admitted in cross-examination that minor was born in hospital through normal delivery; that she had no proof regarding financial income of respondent---Courts below had concurrently fixed the maintenance allowance @ Rs.7000/- per month after due consideration of the needs/requirements of minor andby taking into account financial status of respondent---Constitutional petition was dismissed accordingly.

Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through L.Rs. and others 2015 SCMR 1081 rel.

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

----S.5, Sched.---Maintenance, re-fixation of---Determining factor---Financial status---Principle---Family Court had exclusive jurisdiction relating to maintenance allowance and matters connected therewith---If the granted rate for per month allowance was insufficient/inadequate, institution of fresh suit was not necessary, rather the Family Court may entertain any such application---Court may increase/decrease the maintenance after considering financial status of husband/father---For enhancement of maintenance allowance on behalf of minors, application could be filed by the person having custody of minors---If maintenance allowance was fixed without considering the financial status of person who had been burdened with such future financial liability, he could file application for re-fixation of maintenance allowance.

S.M. Zeeshan Mirza, Rana Muhammad Majid, Zaheer Abbas, Tahir Mahmood Mughal and Naveed Khalid Rana for Petitioners.

2022 M L D 744

[Lahore]

Before Tariq Saleem Sheikh, J

MUHAMMAD AZEEM---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.54789/B of 2021, decided on 17th December, 2021.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-F(i), 337-F(iii), 34 & 289---Damiyah, mutalahimah, negligent conduct with respect to animal and common intention---Pre-arrest bail, refusal of---Medical and ocular evidence---Previous enmity---Scope---Accused sought pre-arrest bail in an FIR lodged under Ss. 337-F(i), 337-F(iii) and 34, P.P.C.---Specific allegation was levelled against the accused that he sicced his dog on the complainant which nipped his right leg near the ankle---Prosecution witnesses had got recorded their statements under S. 161, Cr.P.C., in support of the prosecution case and, according to them, incident was not an accident---Medical evidence had corroborated the ocular account and the doctor had declared the injuries sustained by the complainant as ghyr jaifah damiyhah and ghyr jaifah mutalahimah which attracted Ss. 337-F(i) and 337-F(iii) of P.P.C. respectively---Offence under the last mentioned provision was non-bailable---Tentative assessment of the available evidence and consideration of the facts revealed that there was also previous rivalry between accused and the complainant, as such, S.289, P.P.C., did not apply---Negligence which was the foundational element for that provision was missing---Application for grant of pre-arrest bail was dismissed, in circumstances. [p. 749] A

State v. Barragan 102 Wn. App. 754 (Washt. Ct. App. 2000); State v. Shilling 77, Wn. App 166, 171, 889 P.2d 948 (1995); People v. Nealis (1991) 232 Cal. App. 3d Supp. 1; People v. Henderson (1999) 76 Cal. App. 4th 453; State v. Hoeldt 139 Wn. App. 225 (Wash, Cal. App. 2007); Regina v. Idu Beg (1881) 3 All 776, 779-80 and Gagumal Mulchand v. Emperor AIR 1940 Sindh 172 rel.

Rana Shahbaz Ali for Petitioner.

Muhammad Mustafa Ch., Deputy Prosecutor General with Yasin/ASI.

2022 M L D 762

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

AKBAR ALI---Appellant

Versus

SHAHID HAYAT KHAN---Respondent

F.A.O. No.36 of 2020, decided on 18th September, 2020.

Civil Procedure Code (V of 1908)---

----Ss.20, 21, O.VII, R.10 & O.XXXVII, R.1--- Recovery of money on the basis of dishonored cheque---Territorial jurisdiction---Appellant / defendant assailed order passed by Trial Court declining to return plaint---Plea raised by appellant / defendant was that Trial Court did not have territorial jurisdiction over the matter as cheque was issued at place "V" whereas suit was filed at place "K" where the cheque was dishonoured---Validity---Courts in both the districts had concurrent jurisdiction to entertain the suit---Respondent / plaintiff had option to choose forum for filing the suit in anyone of the districts having concurrent jurisdiction to entertain the suit---Such exercise of choice of forum by respondent / plaintiff could be objected to by appellant / defendant, except on the ground of mala fide to be established by him which had not been done---No reason existed to allow application to return the plaint filed in district "K" to be presented before Court at District "V"---High Court declined to interfere in order passed by Trial Court as the same was well within the jurisdiction of Trial Court and was based on proper appreciation of record and did not suffer from any illegality, error of law or jurisdictional defect---Appeal was dismissed, in circumstances.

Hussain Bakhsh Awan v. Anjum Farooq 2013 MLD 769; Muhammad Aslam Motiwala v. Messrs Quice Food Industries Ltd. 2009 CLD 830; Abrar Ahmed v. Shaikh Zahoor Ahmed 2008 CLD 1288; Hamid Shehzad, Managing Director v. Muhammad Sohail Saeed 2005 YLR 3226 and Riaz Hussain Shahid v. Additional District Judge, Multan and 2 others 2005 YLR 266(2) rel.

2022 M L D 775

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

ANWAR BAIG---Petitioner

Versus

MUHAMMAD IMRAN KHAN and 2 others---Respondents

Writ Petition No.2615 of 2021, decided on 2nd September, 2021.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13---Demands of pre-emption---Notice of Talb-i-Ishhad, non-sending within prescribed period---Held, that Talb-i-Ishhad was to be made by the pre-emptor as quickly as possible but not later than two weeks from the date of knowledge in the manner provided under subsection 13(3), Punjab Pre-emption Act, 1991---Constitutional petition was dismissed in limine.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.13---Civil Procedure Code (V of 1908), O.VII, R. 11---Rejection of Plaint---Suit for pre-emption---Talb-i-Ishhad---Non-sending of notice within prescribed time---Scope---Bounden duty of the court to reject the plaint in terms of R.11 of O.VII of the Civil Procedure Code, 1908---Court had to apply the law and to exercise powers vested by the law instead of abdicating the same for avoiding misuse and abuse of process of law---No intervention of parties was required and court could exercise such powers suo motu.

Raja Ali Shan v. Messrs Essem Hotel Ltd. and others 2007 SCMR 741 and Ardeshir R. Cowasjee and others v. C.D.G.K and others 2008 CLC 1166 ref.

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

----O.VII, R.11A---Rejection of plaint, application for---Scope---Purpose of the legislature in introducing R.11A in O.VII of Civil Procedure Code, 1908 was to discourage the parties to the lis from moving belated applications, seeking rejection of plaint to prolong the proceedings.

(d) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---High Court, while invoking its constitutional jurisdiction, would always exercise restraint in interfering with the judgment or order passed in exercise of revisional jurisdiction unless some perversity/patent illegality was floating on the surface of record.

Muhammad Husain Munir and others v. Sikandar and others PLD 1974 SC 139 and Ghulam Mustafa and another v. District Judge, Jhang and 3 others 2003 MLD 1065 ref.

2022 M L D 787

[Lahore (Multan Bench)]

Before Mirza Viqas Rauf and Ahmed Nadeem Arshad, JJ

FAYYAZ AHMED---Petitioner

Versus

BILAL AHMED and others---Respondents

Review Application No.10-C of 2019, decided on 1st June, 2021.

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

----S.114 & O. XLVII, Rr.1 & 2---Review---Scope---Review could only be allowed when some new and important matter or evidence has been discovered, which after exercise of due diligence is not within knowledge---Order can be reviewed only in view of some mistake or error apparent on the face of record, which must be so manifest, so clear that no Court can permit such an error to remain on record.

Mahmood Hussain Lark and others v. Muslim Commercial Bank Limited and others 2010 SCMR 1036 and Syed Wajihul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 801 ref.

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

----S.114 & O. XLVII, Rr. 1 & 2---Review---Scope---Most essential requirement for invoking review jurisdiction of the Court is that important evidence having a material bearing upon the merits of the case and decision thereof, is subsequently discovered, which is neither in the possession nor in the knowledge of the aggrieved party before passing of the order sought to be reviewed.

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

----S.114 & O.XLVII, Rr.1 & 2---Review---Scope---Points already raised and considered could not be re-agitated in review jurisdiction.

Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others 2007 SCMR 755 ref.

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

----S.115---Revision---Scope---High Court could interfere, in revisional jurisdiction, only where the subordinate Court exercised a jurisdiction not vested in it or failed to exercise a jurisdiction vested in it, or acted in the exercise of its jurisdiction illegally or with a material irregularity.

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

----S.114---Review jurisdiction of High Court---Scope---Review proceedings could not partake rehearing of a decided case---High Court in exercise of its review jurisdiction could not sit as a court of appeal against its own order.

2022 M L D 810

[Lahore (Multan Bench)]

Before Asim Hafeez, J

TARIQ JAVED---Petitioner

Versus

CHAIRMAN, NATIONAL HIGHWAY AUTHORITY, ISLAMABAD and 6 others---Respondents

Writ Petition No.17546 of 2020, decided on 21st December, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Policy decision---Maintainability---Scope---Petitioner impugned the scheme of respondent by which they were erecting/constructing a bridge---Contention of petitioner was that the construction of pedestrian bridge with ramp for motorcycle riders was inconvenient, unnecessary and was likely to affect the shopkeepers in the vicinity---Validity---Element of convenience and above all the safety of the motorcyclists was considered accordingly, it was for the respondent to consider all relevant and requisite factors relating to the traffic and regulation thereof---High Court declined to intervene in the policy decision or proceed to review contours of any scheme/plan regarding construction of pedestrian bridge, judicially, in the absence of any infringement of enforceable legal right---Constitutional petition, being incompetent, was dismissed.

2022 M L D 818

[Lahore]

Before Rasaal Hasan Syed, J

NAZEER AHMED (DECEASED) through LRs---Petitioner

Versus

SHAUKAT ALI (DECEASED) through L.Rs. and others---Respondents

C.R. No.2452 of 2011, decided on 17th December, 2021.

Arbitration Act (X of 1940)---

----S.33---Respondent filed application for making award Rule of the Court---Petitioner filed application for setting aside Arbitration Agreement and the said award---Civil Court accepted the petitioner's application and dismissed the application of respondent---Appellate Court accepted appeal of the respondent---Petitioner contended that he had never entered into any agreement for the reference of dispute nor ever appointed any arbitrator; that the alleged reference to the arbitration was based on fraud; and that the award was improperly procured which was invalid; that prior to the respondent's application, civil litigation was pending between the petitioner and the Municipal Committee wherein respondent was also a party; and that having trust in the respondent (being his brother), the petitioner had been affixing his thumb-impression on certain blank papers as required for filing some applications/pleadings in the civil suit which had been fraudulently misused by respondent for fabricating the alleged arbitration agreement/award---Validity---All three stamp papers including two alleged stamp papers by which the appointment of arbitrators was claimed and one stamp paper of Faisla Salsi were of the same date---Question arose as to how stamp papers for appointment of arbitrators were allegedly purchased and on the very same day the decision of the arbitrators was also allegedly announced---All three stamp papers were allegedly purchased from person produced by respondent as witness who admitted in cross-examination that he did not personally know either the petitioner or the respondent that there was no entry of CNIC numbers of the alleged purchasers at the back of stamp paper; and that at the time of purchase of stamp papers he did not obtain identification from anyone---Genuineness of such documents was suspicious as the same were not proved by any admissible/credible evidence---Statements of others two respondents were different from what had been recorded in reference---Respondent admitted that the house in question was owned by his father who was not party or signatory to the said arbitration agreement---Being not a privy to the arbitration agreement, arbitrators could not assume jurisdiction to settle any question of title qua the property of respondent's father---In view of inherent jurisdictional defect, the entire proceedings for alleged award stood vitiated---Respondent was not a co-sharer in the property in question, he could not have any dispute with respect to partition thereof, nor he could make a reference to arbitration and, thereafter, get an award from the arbitrators---Arbitration agreement was allegedly made on 15/05/2000 while father of parties had already gifted one-half of his house vide registered document dated 03/05/2000 and the other half of the house was gifted by him vide registered gift deed which was executed by their father on 13/05/2000 and was entered into the register of the Sub Registrar on 15/05/2000---Respondent claimed that in terms of the award he was declared to be entitled to the transfer of the ownership of shop which at that time did not vest in the petitioner---Arbitrators did not give any reason as to how they could assume jurisdiction firstly in respect of the property that did not belong to the petitioner/respondent or in respect of the shop which was not owned by the petitioner and was still in the ownership of the Municipal Committee which was not a party to the alleged reference---Alleged award could not be approved by the court which was not a result of any valid reference and was invalidly and improperly procured---Evidence of respondent was self-contradictory/discrepant---Shop in dispute was subject matter of a pending litigation; civil suit between the parties and the Municipal Committee was still pending and the property basically was owned by the Municipal Committee and only Teh Bazari rights existed with the petitioner and, therefore, without permission of the court, the issue of alleged ownership could not possibly be determined during the pendency of the said suit---No possibility of any dispute between the petitioner and respondent in respect of the three properties which were independently held---Revision petition was allowed accordingly.

Shahbaz Kung for Petitioner.

Javed Rasool for Respondent No.1(a) to 1(i).

Proceeded ex parte Respondents Nos.2 and 3.

2022 M L D 859

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

WAJID RASOOL---Petitioner

Versus

REGISTRAR COOPERATIVE SOCIETIES and others---Respondents

Writ Petition No.1320 of 2022, heard on 10th February, 2022.

(a) Cooperative Societies Act (VII of 1925)---

----S.44-D---Power of Registrar of Cooperative Societies (Registrar)---Bye-laws---Status---Bye-laws of a society carry statutory force not greater than directions issued by Registrar under S.44-D of Cooperative Societies Act, 1925.

(b) Cooperative Societies Act (VII of 1925)---

----Ss.16-A & 44-B---Election Rules, R.5---Registrar, powers of---Amendment of bye-laws---Consistent practice---Effect---Petitioners were aggrieved of order passed by Registrar including Secretary to Managing Committee to hold office bye-election---Plea raised by petitioners was that in many cooperative societies, Secretary was not to hold office after election---Validity---Departmental construction of a statutory instrument consistently followed for a long time gave rise to legitimate expectancy and the same could not be deviated or departed from unless new development in the form of clarification by legislation came out---Knowledge of members of Society in question as to the candidates as well as the right to contest election of society was their fundamental right attached to democratic vision over which cooperative society was founded--- Manner in which office of Secretary was included in election schedule through a corrigendum violated R.5 of Election Rules of the society--- When a thing was required to be done in a particular manner it must be done in the same manner or not at all--- High Court directed the Registrar to issue a fresh schedule of election for entire managing committee after including office of Secretary in accordance with R.5 of Election Rules of the Society---High Court further directed the Registrar to enforce amendments in bye-laws in exercise of powers under S.16-A of Cooperative Societies Act, 1925---Constitutional petition was disposed of accordingly.

Military Account Cooperative Housing Societies Limited v. Secretary to the Government of the Punjab and others PLD 2016 Lah. 223; Vipulbhai M. Chaudhary v. Gujarat Cooperative Milk Marketing Federation Limited and others (2015) 8 SCC 1; Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109 and Chenab Flour and General Mills v. Federation of Pakistan and others 2021 PTD 892 ref.

Nazir Ahmed v. Pakistan and 11 others PLD 1970 SC 453; The Commissioner of Income Tax, Lahore v. Messrs Chaudhary Dairies Ltd. 2019 PTD 452 and Zoroastrian Co-operative Housing Society Limited and others v. District Registrar Co-operative Societies (Urban) and others (2005) 5 SCC 632 rel.

(c) Interpretation of statutes---

----Harmony---Court must avoid head on clash of seemingly contradicting provisions of law and must harmonize the same.

Waqar A. Sheikh, Mughees Aslam Malik, Qazi Muhammad Muneeb Ali and Muhammad Salman Amir for Petitioner.

Muhammad Ali Siddiqui for Petitioner (in connected Writ Petition No.1930/2022).

Muhammad Ayub Buzdar, Assistant Advocate General along with Mian Abdul Ghafoor, Joint Registrar, Cooperative Societies, Multan for Respondents.

Ch. Muhammad Ashraf Sindhu and Barrister Sohail Nawaz for Respondent No.9.

2022 M L D 884

[Lahore]

Before Shahid Waheed, J

MUHAMMAD IMTIAZ KHAN---Petitioner

Versus

MEMBER, BOARD OF REVENUE and others---Respondents

Writ Petition No.195623 of 2018, heard on 22nd February, 2022.

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

----Ss.3, 5 & 15---Constitution of Pakistan, Art.10-A---Consolidation of holdings---Review of mutation by Consolidation Officer---Jurisdiction---Petitioner was aggrieved of review of mutation in his favour on the application of respondents---Plea raised by petitioner was that respondents did not have any locus standi to assail mutation in question---Validity---Previous owner of land never raised any objection to transfer of land in favour of petitioner---Petitioner was never got involved in any inquiry into demarcation of land---Orders made in revenue hierarchy were not outcome of fair trial---High Court set aside the orders passed by revenue authorities and remanded the matter to Consolidation Officer to decide the matter afresh through a well-reasoned order---Constitutional petition was allowed, in circumstances.

Ch. Nisar Ahmed Seikhhu for Petitioner.

Muhammad Arif Raja, Addl. A.G. for Respondents Nos.1 to 5.

Malik Sarbuland for Respondents Nos.6 to 7.

2022 M L D 896

[Lahore (Multan Bench)]

Before Ali Zia Bajwa, J

QAMAR-UL-ZAMAN and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision No.342 of 2010, heard on 4th November, 2021.

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

----Ss.337-F(v), 337-L(2) & 34---Ghayr-jaifah-hashimah, causing hurt, common intension---Appreciation of evidence---Revisional court enhanced the sentences of imprisonment of accused granted by the Trial Court---Scope---Accused were charged for causing injuries to the complainant---Ocular account was supported by medical evidence---Ocular account had been furnished by complainant/injured and another witness---Perusal of their statements reflected that their testament was strictly in line with the prosecution version narrated in the FIR---Said witnesses had reiterated all the details of the occurrence provided in the crime report, especially mode and manner of infliction of injuries by each accused and kind of weapons used---Both the said witnesses corroborated each other on all the material aspects of prosecution version---Said witnesses stood the test of lengthy cross examination but nothing favourable to the accused could be brought on the record---Medical evidence confirmed the ocular account regarding seats of injuries and kind of weapons used during the occurrence---Cross examination of Medical Officer by the accused's side was also of no avail to them---Section 337-N(2), P.P.C., clearly envisaged that although the use of word "may" conferred discretion upon the court to award sentence of Ta'zir against an accused but that discretion was qualified by the condition that Ta'zir could be awarded to an accused who was a previous convict, habitual, hardened, desperate or dangerous criminal or when the offence had been committed by him in the name or on the pretext of honour---Case not falling under any of those categories, sentence of imprisonment as Ta'zir could not be awarded to an accused, in addition to Daman or Arsh etc---Prosecution had failed to produce even an iota of evidence to establish any of such circumstances against the accused persons, hence the Trial Court was not justified to award the sentence of imprisonment to the accused and Revisional Court below fell in error to enhance the same---Sentence of imprisonment as Ta'zir was set-aside---Criminal revision petition was dismissed with said modification in sentence.

Ali Muhammad v. The State PLD 2009 Lah. 31; Abdul Wahab and others v. The State 2019 SCMR 516 and Shakeel Shah v. The State and others (Criminal Petition No.1072/2021) rel.

(b) Criminal trial---

----Witness---Statement of single witness---Scope---Evidence of even a single witness, if found credible and reliable by the Court, is sufficient to convict the accused persons.

(c) Criminal trial---

----Medical evidence---Ocular account corroborated by medical evidence---Scope---If medical evidence corroborated ocular version of prosecution, same would be sufficient to hold the accused guilty of offence.

PLD 2019 SC 261 rel.

Mudassar Altaf Qureshi for Petitioner.

Ansar Yasin, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2022 M L D 911

[Lahore]

Before Muhammad Tariq Nadeem, J

IRFAN AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.41556-B of 2021, decided on 25th November, 2021.

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

----S.498---Penal Code (XLV of 1860), Ss.376 & 342---Rape---Wrongful confinement---Pre-arrest bail, grant of---Scope---Complainant was married with the accused, relations between the parties remained cordial for some time, subsequently the complainant came to know that it was a third marriage of the accused and thereafter difference arose between the parties---Complainant alleged that the accused got filed a suit for dissolution of marriage before Judge Family Court after forcibly obtaining her signatures on the plain papers; that he also forced her to relinquish Haq-ul-Mehr; that after obtaining the decree of dissolution of marriage, accused retained the complainant with him and thereafter raped her for almost 8 months---Held; complainant had submitted an application before Special Judicial Magistrate for lodging her in Dar-ul-Aman but she had not described the facts mentioned in the FIR in her application before the Judicial Magistrate---Subsequently being annoyed with the accused and at the behest of her parents, complainant had got registered the present case---Accused had joined the investigation, nothing was to be recovered from him and no useful purpose would be served by sending him behind the bars---Petition for grant of pre-arrest bail was allowed, in circumstances.

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

----S.498---Pre-arrest bail---Mala fide---Scope---Mala fide can be gathered from the facts and circumstances of the case.

Shahzada Qaiser Arfat alias Qaiser v. The State and another PLD 2021 SC 708 ref.

Khalil Ahmad Soomro and others v. The State PLD 2017 SC 730 rel.

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

----S.498---Pre-arrest bail---Scope---Even the merits of the case can be touched upon while deciding a pre-arrest bail application.

Sajid Hussain alias Joji v. The State and another PLD 2021 SC 898 ref.

Zaka-ur-Rehman and Sheraz Zaka for Petitioner.

Muhammad Moeen Ali, DPG with Naved Irshad, S.P. (Inv.) Cantt., Saadia Mehbob, SI and Sadaf Asghar I.O.

2022 M L D 929

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

SUBA though L.Rs and others---Petitioners

Versus

Mst. HALIMA BIBI and others---Respondents

Civil Revision No.683-D of 2009, decided on 13th December, 2021.

Civil Procedure Code (V of 1908)---

----O.XXIII, R. 2---Limitation Act (IX of 1908), S. 14 & Art. 120---Inheritance---Withdrawal of suit with permission to file afresh---Limitation, commencement of---Suit for declaration and permanent injunction---Respondent/plaintiff being daughter of deceased instituted suit claiming her share from her father's legacy and cancellation of sale deed of petitioner/defendant and certain mutations executed in his favour---Suit was dismissed and during pendency of her appeal, respondent had withdrawn the suit on ground of formal defects by seeking permission to file fresh suit vide order dated 31/01/2001---Fresh suit was dismissed by Trial Court---Respondent's appeal was allowed by appellate Court---Petitioner contended that later suit was barred by time as earlier suit was instituted on 26/02/1992 when cause of action was allegedly accrued---Validity---Respondent in her plaint specifically mentioned that cause of action had arisen one and half months before institution of that suit---Present suit was instituted after a period of nine years from previous suit---Limitation for instituting suit for declaration was not provided in Limitation Act, 1908, hence the same would be 6 years under residuary Art.120 of Limitation Act, 1908---Court's permission to institute fresh suit after withdrawal of earlier suit would save the fresh suit from bar as to institution of fresh suit on same cause of action---Once limitation started on same cause of action, the same would not discontinue---Plaintiff was bound by the law of limitation in the manner as if the first suit had not been instituted---Period consumed in form of earlier suit was to be counted and the same was not to be excluded for purpose of S.14 of Limitation Act---Revision petition was allowed and respondent's suit stood dismissed.

Mian Mumtaz Ahmad Zahid and Syed Hammad Raza Bokhari for Petitioners.

Ch. Nazir Ahmad Jatt for Respondent No.1.

Khush Bakht Khan, Assistant Advocate General Punjab for Respondent No.2.

2022 M L D 939

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD RAFIQ---Appellant

Versus

HUSSAIN and another---Respondents

R.S.A. No.132 of 2013, heard on 2nd November, 2021.

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

----S.27---Suit for specific performance of agreement---Subsequent purchaser, bona fide status of---Knowledge of agreement---Onus of proof, discharge of---Essentials---Appellant allegedly approached few days prior to mutually extended date for payment of balance money, but one of the respondents refused to accept the same and disclosed that the suit property was sold out to third party---Said "third party" entered the suit by moving application under O.I, R.10 of Civil Procedure Code, 1908---Third party asserted that he purchased the suit land vide four mutations (numbers given in written statement); that he was owner in possession of suit land; and that one of the defendants in collusion with appellant was trying to take possession after sale; and that real brother of one of the respondent filed suit for possession on basis of pre-emption against third party---Appellant's suit was concurrently dismissed---Validity---Appellant's agreement to sell and payment of earnest money was undisputed and concluded by both Courts below---Emerged on record through evidence that parties were residents of same vicinity and well known to one another---Agreement between appellant and one of the respondent must had been in knowledge of inhabitants of village---Nothing on record to show whether "third party" had made inquiry about existence of said agreement even in summary manner---Third party had not exhibited alleged four mutations in his favour to prove that same were sale mutations for value---Passing of consideration was also not proved on record---No confidence inspiring evidence germane to making of inquiry about original contract by third party was made as required by law/settled principles---Appeal was allowed and suit of appellant/plaintiff was decreed with direction to deposit remaining sale price within 30 days, otherwise the same would be deemed to have been dismissed.

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

----S.27---Subsequent purchaser, bona fide character of---Proof---Subsequent vendee had to discharge the initial onus: firstly, that he acquired property for due consideration and thus was a transferee for value; secondly, that there was no dishonesty of purpose or tainted intention to enter into the transaction which would settle that he acted in good faith/bona fide, thirdly, that he had no knowledge/notice of the original sale agreement between the plaintiff and vendor; fourthly, that he made some inquiries with the persons having knowledge of the property and also with the neighbours.

Hafiz Tasseduq Hussain v. Lal Khatoon PLD 2011 SC 296 and Bahar Shah and others v. Manzoor Ahmad Civil Appeal No. 389 of 2015 decided by Supreme Court on 14/10/2021 rel.

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

----S.27---Suit for specific performance of agreement---Bona fide purchaser---Proof---Inquiry as to title of property---Essentials---Where subsequent vendee conducted no inquiry regarding the title of property in question, he would not be deemed to have purchased property in question for value, in good faith and without notice of original contract.

Muhammad Sham v. Muhammad Sarwar and others 1997 CLC 1231 rel.

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

----S.100---Second appeal---Power/jurisdiction of High Court to reverse concurrent findings of courts below---Scope---High Court had ample power to undo the concurrent findings recorded by Courts below in exercise of appellate jurisdiction.

Mian Muhammad Faheem Bashir for Appellant.

Ex parte: on 8-5-2014 for Respondent No.1.

Ex parte: on 29-9-2021 for Respondent No.2.

2022 M L D 973

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

MUSLIM COMMERCIAL BANK LIMITED through Manager---Petitioner

Versus

Mst. NUSRAT JAMEELA and 4 others---Respondents

Writ Petition No.8826 of 2021, decided on 10th September, 2021.

Contempt of Court Ordinance (IV of 2003)---

----Ss.2(a), 3 & 5---Civil Procedure Code (V of 1908), S.38 & O.XXI---Contempt proceedings, validity of---Execution of decree---Scope---Petitioner impugned order of Trial Court whereby upon application of plaintiff / decree-holder for initiation of contempt proceedings against petitioner, the petitioner was directed to comply with decree of Trial Court---Validity---Tool of contempt could not be used as substitute for execution and implementation of judgment and decree of Trial Court and impugned order was therefore not sustainable---Impugned order was set aside---Constitutional petition was allowed, in circumstances.

Saeeda Sultan v. Liaqat Ali Orakzai and others PLD 2021 SC 671 rel.

Mian Khurram Hashmi for Petitioner.

Muhammad Suleman Bhatti and Iftikhar Majid for Respondents Nos.1 to 3.

Muhammad Javaid Iqbal Adum for Respondent No.4.

2022 M L D 978

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi, J

ZULFIQAR AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.640 of 2019, heard on 22nd November, 2021.

(a) Criminal trial---

----Duty of the prosecution---Scope---Prosecution was under legal obligation to prove its case beyond the shadow of doubt irrespective of defence pleas, either consistent or inconsistent and only if the prosecution succeeded in doing so, defence version might be taken into consideration.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the deceased by firing---Motive behind the occurrence was that the accused was apprehending the complainant party to have closed his sand mine and he was facing financial loss due to them and due to that grudge, he committed the occurrence---Ocular account of the incident had been furnished by two eye-witnesses including complainant---Said witnesses had fully supported the prosecution case against the accused by giving graphic details of incident and corroborating each other on all minor as well as material aspects of the case---Said witnesses reiterated the same facts as in the private complaint as well as FIR and elaborately stated about the mode and manner in which the accused had inflicted firearm injuries to the deceased---Due to absence of any previous illwill, enmity or grudge against the accused, eye-witnesses could not have falsely implicated him in a case involving offence of heinous nature---Said witnesses were subjected to gruelling cross-examination, but they remained on comfortable unison and the defence failed to shatter their credibility---No doubt the accused was a disabled person due to which he could not alight from his car, but even that fact would go against the accused as the prosecution witnesses remained consistent that he had made burst of his licensed Kalashnikov while sitting in his car---Said eye-witnesses had found ample support from the medical evidence, which was in complete harmony with the ocular account of the prosecution's case and in that regard no conflict could be pointed out by the defence---Prosecution had brought on record sufficient incriminating evidence against the accused in the shape of two eye-witnesses of tragedy, well supported by medical evidence and equally corroborated by recovery of weapon of offence at his instance---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the deceased by firing---Weapon of offence was recovered at the instance of accused---Reliance---Scope---Kalashnikov was recovered at the instance of accused---According to defence itself, the deceased had sustained firearm injuries through Kalashnikov, which was a licensed weapon of accused---Admittedly, Kalashnikov used in the case was fully loaded with bullets and was on automatic mode, so it was beyond imagination that its trigger was accidently pressed---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----S.302(b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Defence plea---Scope---Accused was charged for committing murder of the deceased by firing---First portion of defence plea adopted by accused was that the complainant party tried to snatch Kalashnikov which was triggered accidently, but keeping in view the nature of firearm used during the occurrence, the said plea appeared to be absurd and ridiculous---Besides, defence had no satisfactory explanation that if the accused had no intention to commit that tragic incident, then why he had brought the fully loaded Kalashnikov with him---Kalashnikov being on automatic mode could not have been triggered accidently, therefore, the version of accused that trigger was accidently pressed did not appeal to mind---Other part of defence plea was that the deceased lost his life due to negligence of complainant and the doctor, but even that plea was not established from the record as it was part of the record that the deceased, in an injured condition, was shifted to the Hospital in order to save his life but firearm injuries inflicted by the accused on his person did not let him survive---Even otherwise, keeping in view the provisions of Art. 121 of the Qanun-e-Shahadat, 1984, the onus to prove his defence plea was squarely shifted upon the accused but he had failed to discharge that onus inasmuch as he had neither made any statement on oath under S.340(2), Cr.P.C. nor produced any witness in his defence to support the version of the incident advanced by him---Defence plea could not save the accused from the consequence of his deliberate and intentional act of committing murder of deceased---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of doubt---Appeal against conviction was dismissed accordingly.

Abdul Kareem v. State PLJ 2010 SC 424; Muhammad Javed v. The State 2015 SCMR 864 and Ali Ahmad v. State PLD 2020 SC 201 rel.

Tanveer Iqbal Khan and Sh. Abid Altaf for Appellant.

Khawaja Sohail Iqbal, D.P.P for the State.

Ch. Muhammad Akhtar, Hassan Abuzar Pirzada and Sheharyar Nawaz Malik for the Complainant.

2022 M L D 993

[Lahore (Multan Bench)]

Before Asjad Javaid Ghural, J

Mian SHAHZAD IQBAL---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.433-B of 2021, decided on 23rd September, 2021.

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

----S.498---Penal Code (XLV of 1860), Ss. 302, 324, 447, 452, 511, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, criminal trespass, house-trespass after preparation for hurt, assault or wrongful restraint, attempting to commit offence, abetment, rioting, armed with deadly weapon---Pre-arrest bail, grant of---Scope---Prosecution case was that the accused persons along with 8/10 unknown persons, while armed with lethal weapons, formed an unlawful assembly and in furtherance of their common intention, launched murderous assault upon the complainant party as a result of which several of them got injured and one of them succumbed to the injuries at the spot---Accused/one of the petitioners though was nominated in the crime report yet with the role of providing behind-the-scene abetment and he had not actively participated in the occurrence---Nothing was mentioned to show as to how the complainant came to know about the abetment---Accused was admitted to pre-arrest bail, in circumstances.

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

----S.498---Penal Code (XLV of 1860), Ss. 302, 324, 447, 452, 511, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, criminal trespass, house-trespass after preparation for hurt, assault or wrongful restraint, attempting to commit offence, abetment, rioting, armed with deadly weapon---Pre-arrest bail, grant of---Scope---Prosecution case was that the accused persons along with 8/10 unknown persons, while armed with lethal weapons, formed an unlawful assembly and in furtherance of their common intention, launched murderous assault upon the complainant party as a result of which several of them got injured and one of them succumbed to the injuries at the spot---Two of the accused persons/petitioners were not named in the crime report, who were implicated in the case on the third day of occurrence---Statements of prosecution witnesses recorded under S. 161, Cr.P.C., depicted that they had identified the accused persons and four others at the spot on the very day of occurrence---Mode and manner qua implication of the accused persons prima facie showed that the witnesses were managed and maneuvered subsequently, in order to falsely implicate the accused persons---Accused persons had already joined investigation wherein no incriminating material could be recovered from them---Insistence of the investigating agency upon arrest of the accused persons appeared to be unnecessary and, thus, smacking of bad faith---Accused persons were admitted to pre-arrest bail, in circumstances.

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

----S.498---Penal Code (XLV of 1860), Ss. 302, 324, 447, 452, 511, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, criminal trespass, house-trespass after preparation for hurt, assault or wrongful restraint, attempting to commit offence, abetment, rioting, armed with deadly weapon---Pre-arrest bail, refusal of---Scope---Prosecution case was that the accused persons along with 8/10 unknown persons, while armed with lethal weapons, formed an unlawful assembly and in furtherance of their common intention, launched murderous assault upon the complainant party as a result of which several of them got injured and one of them succumbed to the injuries at the spot---Accusation of forming unlawful assembly while armed with fire arms weapons and trespassing into the house of the complainant levelled against the accused persons/petitioners was prima facie supported with the respective medico legal examination certificates of the injured witnesses, who had fully supported the contents of the crime report in their statements recorded under S.161, Cr.P.C.---Accused persons were found fully involved in the occurrence and their physical custody was required to the police for the purpose of further investigation as well as recovery of respective weapons of offence---Nothing was available on record to show that implication of accused persons was tainted with mala fide and ulterior motive---Accused persons were not entitled to pre-arrest bail---Bail petitions were dismissed, in circumstances.

M.A. Hayat Haraj and Ramzan Khalid Joiya for Petitioners.

Zia-ur-Rehman Randhawa for the Complainant.

2022 M L D 1013

[Lahore (Multan Bench)]

Before Muhammad Shan Gul, J

QASIM ALI and 2 others---Petitioners

Versus

MANZOORAN BIBI and 3 others---Respondents

Civil Revision No.869 of 2010, decided on 25th November, 2021.

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

----Ss.42 & 54---Qanun-e-Shahadat (10 of 1984), Art.129---Civil Procedure Code (V of 1908), O.I, R.10---Suit for declaration and injunction---Mutation, assailing of---Revenue authorities, non-impleading of---Official acts---Presumption---Petitioners/plaintiffs assailed mutations of gift made in favour of respondents/defendants on the plea of fraud and collusion of revenue officials---Trial Court decreed the suit in favour of petitioners/plaintiffs but Lower Appellate Court reversed the findings and dismissed the suit---Validity---Non-impleadment of revenue officials and revenue authorities hierarchy in suit filed by petitioners/plaintiffs was fatal to their case--- Presumption of regularity was attached to official documents and Register of Rights and copy of Daily Diary which were official documents and had presumption of regularity attached with them---Such presumption was not even remotely rebutted and the documents were rightly relied upon by Lower Appellate Court as establishing factum of gift---Rapat Roznamcha (Report of Daily Diary) and Register carrying entries in Record of Rights carried presumption of truth and were rightly relied upon by Lower Appellate Court--- High Court declined to interfere in judgment and decree passed by Lower Appellate Court--- Revision was dismissed, in circumstances.

Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398; Sakhi Jan and others v. Shah Nawaz and another 2020 SCMR 832; Muhammad Siddique (deceased) through LRs and others v. Mst. Noor Bibi (deceased) through LRs and others 2020 SCMR 483; Khalid Mehmood v. Mst. Naseem Akhtar and 9 others 2017 MLD 338; Sakhawat Ali and 18 others v. Province of Punjab through Collector, Faisalabad and 13 others 2002 YLR 2338; Mst. Natho v. Mst. Hadayat Begum and others PLD 1952 Lah. 545; Muhammad Hanif v. Zardad Khan and others 2021 YLR 1090; Taj Muhammad Khan through L.Rs v. Mst. Munawar Jan and 2 others 2009 CLC 1276; Syed Mohsin Raza Bukhari and others v. Syed Gulzar Hussain Kazmi and others PLD 2004 SC 520; Mst. Meher Taja and 4 others v. Naseer Muhammad and 2 others 2015 CLC 902; Ghulam Muhammad v. Mian Muhammad and another 2007 SCMR 231 and Muhammad Zaman Khan v. The Additional Chief Land Commissioner and another 1986 SCMR 1121 rel.

(b) Global Gender Gap Report, 2021---

----Gender Parity Index---Scope---Ensuring economic safety for his daughters is not an option but a necessity for a father in a society such as ours which is ranked 153rd out of 156 countries on Gender Parity Index in Global Gender Gap Report, 2021, published by World Economic Forum---Four sub-indexes were used by World Economic Forum to measure dimensions of gender parity i.e. economic participation and opportunity; educational attainment; political empowerment; and health and survival.

Saghir Ahmad Bhatti for Petitioners.

Amir Aziz Qazi for Respondents.

2022 M L D 1030

[Lahore (Bahawalpur Bench)]

Before Syed Shahbaz Ali Rizvi and Farooq Haider, JJ

NAZIR AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.196 of 2015, decided on 25th June, 2019.

Drugs Act (XXXI of 1976)---

----S.27---Manufacturing and selling spurious or unregistered drug---Appreciation of evidence---Benefit of doubt---Scope---Accusation levelled in the complaint was that Drug Inspector inspected the business premises of accused and took possession of a syrup for test and analysis on suspicion of having allopathic ingredients---Forensic laboratory declared that the sample contained Vitamin B1, B2, Niacinamide and Vitamin C---Provincial Quality Control Board after affording personal hearing to the accused granted permission for prosecution for manufacturing, stocking/selling unregistered, spurious drugs---Trial court convicted the accused under S. 27 of Drugs Act, 1976---Accused was not manufacturer of the drug---Only a meager quantity, i.e. five bottles of the syrup were found and recovered from the Dawa Khana of accused, as such, it could not be said that the accused was manufacturing the same or had kept the same for selling it rather it would be available there for use of the accused---Nowhere was it mentioned in the report of Forensic Laboratory that the sample of impugned medicine was adulterated, substandard, misbranded or spurious; it was also not mentioned therein that ingredients found in the impugned medicine were exclusively allopathic and not natural, herbal or homeopathic---Prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Syed Ghulam Shabbir Shah for Appellant along with appellant.

Malik Muhammad Latif, Deputy Prosecutor General for the State.

2022 M L D 1046

[Lahore]

Before Ali Baqar Najafi and Farooq Haider, JJ

TAMOOR AHMAD---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Revision No.18677 of 2022, decided on 29th March, 2022.

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

----S.221---Charge to state offence---Scope---Charge shall state the offence with which the accused is charged and the "law and section of law" against which the offence is said to have been committed shall be mentioned in the charge.

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

----S.221---Charge to state offence---Object of framing charge---Scope---Whole object of framing charge is to enable the accused to know that what is precise accusation against him and concentrate his attention on the case that he has to meet i.e. to ensure that the accused had sufficient notice of the nature of accusation with which he was charged and secondly to make the Court concerned conscious regarding the real points in issue---Although charge must contain facts which are essential factors of the offence in question, however, no yardstick can be fixed qua the particulars which should be mentioned in the charge as it depends upon facts/ circumstances of each case---Prime consideration which is of vital importance/mandatory with respect to charge is that accused must not be misled in his defence by omission/error in the charge---If contents of charge are not misleading the accused in his defence then there is no defect of material nature in the charge; in other words, if nature of accusation has been incorporated in the charge with relevant provision of law applicable in categorical manner eliminating possibility of any confusion or prejudice then such charge cannot be termed as defective---If particulars of the offence are not mentioned in the charge and accused is convicted for said offence then it can be said that such omission caused prejudice to the accused in his defence but if particulars and provision of law are mentioned in the charge and subsequently same is not proved during trial then accused certainly gets the benefit of acquittal and practically speaking no prejudice is caused to the accused i.e. in simple words, framing of charge does not mean conviction and if it is not proved then of course, it results into acquittal and accused does not suffer from any prejudice.

Mohabbat Ali and another v. The State and another 2007 SCMR 142 distinguished.

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

----S.265-D---When charge is to be framed---Scope---Charge is framed by Trial Court after perusing the police report or complaint, all other documents and statements filed by the prosecution.

2022 M L D 1059

[Lahore]

Before Muhammad Tariq Nadeem, J

MUHAMMAD.ZAMEER and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.47516-B of 2021, decided on 29th September, 2021.

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

----S.498---Penal Code (XLV of 1860), Ss. 337-A(i), 354, 452 & 34---Shajjah-i-khafifah, assault or criminal force to woman with intent to outrage her modesty, house-trespass after preparation for hurt, assault or wrongful restraint and common intention---Pre-arrest bail, grant of---Delayed FIR---Scope---Accused persons along with their co-accused invaded the house of complainant, insulted the modesty of women folk and furthermore caused wounds on their bodies---First Information Report was lodged with delay of 19 days and no explanation for such inordinate delay was brought on record---Accused persons were not shown to be armed with any kind of weapon at the time of alleged occurrence---More so, for the attraction of S. 452, P.P.C., preparation for causing hurt was sine qua non, which was very much lacking in the case---Complainant was sister-in-law of accused persons and was living with their real brother---Accused persons had easy access to enter in the house of their real brother due to the close relationship---Express penal provisions of S.452, P.P.C., were not attracted against the accused persons as they had access to the houses of each other without interference---Civil litigation was also pending for adjudication between the parties, therefore, possibility of mala fide and ulterior motive on the part of complainant could not be ruled out---Accused persons had joined investigation and nothing was to be recovered from them, thus, no useful purpose would be served by sending them behind the bars---Petition for grant of pre-arrest bail was allowed, in circumstances.

Muhammad Essa v. The State and another 2012 SCMR 646; Ghulam Ali and 3 others v. The State 1991 PCr.LJ 1293; Khurram Bashir v. The State and others 2011 MLD 346 and Muhammad Bilal v. The State 2008 MLD 231 ref.

Muhammad Ishaq v. The State and others 2012 SCMR 70 and Muhammad Ayub v. Abdul Hameed and four others 2009 PCr.LJ 1259 rel.

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

----S.498---Pre-arrest bail---Scope---Mala fide or ulterior motive of the complainant and police cannot be proved in every case, however, these grounds can be gathered from the facts and circumstances of the case.

Khalil Ahmed Soomro v. The State PLD 2017 SC 730 rel.

Shahzada Qaiser Arfat alias Qaiser v. The State and another PLD 2021 SC 708 ref.

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

----S.498---Pre-arrest bail---Scope---If an accused person has a good case for post-arrest bail, mere at the wish of complainant, he cannot be sent behind the bars for few days by dismissing his application for pre-arrest bail---Merits of the case can also be taken into consideration while deciding the application for bail before arrest.

Khair Muhammad and another v. The State through P.G. Punjab and another 2021 SCMR 130 rel.

Shahid Bashir Pannoo for Petitioners.

Sultan Asghar Chattha, Deputy Prosecutor General for the State with Yasir Ali, SI.

2022 M L D 1081

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

Ch. MUHAMMAD SADDIQUE---Petitioner

Versus

The SECRETARY COOPERATIVE and others---Respondents

Writ Petition No.552 of 2015, decided on 10th February, 2022.

(a) Constitution of Pakistan---

----Arts.199, 10-A, 23 & 24---Co-operative Societies Act (VII of 1925), S.17-B---Constitutional petition---Right to fair trial---Provision as to property---Protection of property rights---Expulsion of a member of society---Opportunity of hearing---Scope---Petitioner defaulted in payment of outstanding dues regarding cost of land and development charges as such, respondents cancelled the plots by refunding the deposited amounts, which order was assailed through present constitutional petition---Validity---Minute reading of S. 17-B of the Co-operative Societies Act, 1925, revealed that an opportunity of hearing was a must rather one was a deadly committer of default---In petitioner's case said proviso was missing, as admittedly the respondent had been issuing notices to the petitioner but he had not been afforded an opportunity of hearing, prior to cancellation of even provisional allotment of plots---Action of respondents had infringed petitioner's fundamental right of holding property as provided under Art.23 of the Constitution as well as undermined protection of his property rights as guaranteed by Art.24 of the Constitution---More so, the actions of respondents had seriously jeopardized the constitutional protection of due process of law provided under Art.10-A of the Constitution---Respondents had clearly breached the Fundamental Rights of the petitioner provided and protected under the Constitution---Case was sent back to the Secretary Co-operative for decision afresh after affording an opportunity of hearing to the petitioner---Constitutional petition was disposed of accordingly.

(b) Administration of justice---

----Principles of natural justice require that the aggrieved party be provided an opportunity of hearing and in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings resulted in consequences affecting the person or property or other rights of the parties concerned---Without participation of a party affected by an order or a decision, order amounts to an action without lawful authority.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Article 199 of the Constitution mandates that High Court on the application of any aggrieved person can make an order or give such directions for the enforcement of any of the Fundamental Rights.

(d) Maxim---

----Audi alteram partem---Scope---Requirement of audi alteram partem is not confined to proceedings before Courts but it extends to all proceedings by whomsoever held, which may affect a person or property or other rights of the parties concerned in dispute.

(e) Administration of justice---

----Principles of natural justice must be read into each and every statute unless and until it is prohibited by the statute itself---Even if there is no provision as to issuance of notice of personal hearing to the affected party, in a statute, it cannot override the principles of natural justice and an opportunity of a hearing has to be provided to the affected party.

Abdul Majeed Zafar and others v. Governor of Punjab through Secretary and others 2007 SCMR 330; Ch. Mohammad Nawaz and another v. The Federal Government Employees Housing Foundation and others 2018 PLC (C.S.) 325; Pakistan State Oil Company Ltd. v. Muhammad Aram Khan and others 2004 PLC (C.S) 992 and Mst. Asiya Ashraf Chaudhary v. Government of Punjab and others 2020 CLC 503 rel.

Malik Ghulam Mustafa Kandwal, Advocate Supreme Court for Petitioner.

Malik Ahtesham Saleem, Assistant Attorney General.

Muhammad Yasir Ibrahim for Respondent.

2022 M L D 1091

[Lahore]

Before Muhammad Amjad Rafiq, J

ZEESHAN ANJUM---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.1006-B of 2022, decided on 31st January, 2022.

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

----S.498---Penal Code (XLV of 1860), S. 462-I---Abstraction or tampering, with distribution or auxiliary---Pre-arrest bail, grant of---Delayed FIR---Further inquiry---Mala fide of complainant---Scope---Accused was charged for committing theft of electricity by using bogus meter---So far no detection bill had been issued against the accused---Investigating Officer had not taken into custody the relevant record whereby such reference of meter could be tracked in the record or otherwise---Accused had placed on record copy of application dated 04-10-2021 (the date of occurrence), stating therein that on 01-10-2021 his meter was disconnected and had requested for its restoration---Such fact transpired that on 04-10-2021 when Electric Company FESCO Department raided, no meter was installed at the premises but later on 12-10-2021 present FIR was registered---Offence with which the accused was charged with did not fall within the prohibitory clause---Prosecution story was shaky, therefore, question of further inquiry arose---Involvement of the accused in the case with mala fide intention of the complainant could not be ruled out---Petition for grant of pre-arrest bail was allowed, in circumstances.

Khair Muhammad and another v. The State through P.G. Punjab and another 2021 SCMR 130 ref.

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

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

----Chap. XVII-B [Ss. 462-G to 462-P]---Criminal Procedure Code (V of 1898), S.154---Offences relating to electricity---Information in cognizable cases---Registration of FIR---Scope---Chapter XVII-B was inserted in Penal Code, 1860, to deal with offences relating to theft of electricity and Sched.II of Code of Criminal Procedure, 1898, was also amended so as to make offences mentioned in the above Chapter as cognizable and non-bailable, which means that for cognizable offence, registration of FIR is permissible---However, a conditional cognizance under S. 462-O of P.P.C. was introduced---Conditional cognizance has produced a match between cognizance and cognizable offence or taking cognizance and registration of FIR---Cognizance is a later stage in a criminal process when the court for the first time takes notice of an offence on a police report or on a complaint by a private person---Before that criminal process is initiated under S. 154, Cr.P.C., for cognizable offences and S. 155, Cr.P.C., for non-cognizable offences, it has to pass through the stage of investigation, purpose whereof is collection of evidence which guides to prosecute or not to prosecute---In ordinary offences, court under S.190, Cr.P.C., is authorized to take cognizance plainly on a police report or on a private complainant within the contours of such section without attending any peculiar condition; but in certain situations, cognizance is restricted based on public policy in order to govern the cases with controlled prosecution.

Muhammad Nazir v. Fazal Karim and others PLD 2012 SC 892 and Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 SCMR 483 ref.

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

----Chap. XVII-B [Ss. 462-G to 462-P]---Criminal Procedure Code (V of 1898), S.154---Offences relating to electricity---Information in cognizable cases---Registration of FIR---Scope---Registration of FIR for offences under Chapter XVII-B, P.P.C. is not barred, because all the offences have been shown as cognizable in Sched. II of Cr.P.C.---Later during the process, the requisite complaint is required to be filed with report under S.173, Cr.P.C., before the Trial Court---Prosecutor is expected to scrutinize such complaint and report under S.173, Cr.P.C., before forwarding it to the court concerned so as to make it conformable with the requirement of S.462-O, P.P.C.

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

----S.462-O---Criminal Procedure Code (V of 1898), S.195---Offences relating to electricity---Cognizance---Scope---S.462-O of P.P.C. when juxtaposed with S.195 of Cr.P.C. transpires that under S.195 of Cr.P.C., court shall straight away take cognizance of offences on the complaint in writing of Public Servant/Court and no other restriction has been imposed like recording of reasons before taking cognizance---Words "reasons to be recorded" used in S. 462-O of P.P.C., are very valuable and meaningful because electricity theft is gauged through technical report which requires an expert opinion so as to facilitate the court to reach out direct to the essence of the offence and may not remain entangled about an exercise of applicability of offences for proper charging.

PESCO thorough Executive Officer v. The State and 43 others 2020 PCr.LJ 249 rel.

Laeeq Hafeez Khan Barak Zai for Petitioner.

2022 M L D 1112

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

Mst. ANWAR MAI---Petitioner

Versus

GHULAM SARWAR and another---Respondents

Civil Revision No.1213-D of 2003, decided on 8th September, 2021.

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

----Art.120---Mutation, cancellation of---Maxim "allegans contraria non est audiendus (a person who alleges things contradictory to each other is not to be heard)---First suit for declaration and in alternate the specific performance was filed by the petitioner in life time of her father and second suit for inheritance and cancellation of mutation was filed after his demise---Both suits were consolidated and concurrently dismissed---Petitioner contended that she was owner in possession and entitled for 1/5th share out of her deceased father's property; that the impugned mutation in favour of the respondents (her brothers) was against law/fact and was got sanctioned on basis of alleged tamleek with the intention to deprive the petitioner from her legal/shari share; that written statement filed by the respondents in the first suit could not constitute an admission on part of the deceased father of the parties regarding the impugned mutation as such written statement was never signed by their father on his own; and that no limitation would run in the matters of inheritance---Validity---Petitioner had laid claim in her first suit on the basis of purported oral sale by father in her favour and arrayed her father as first party in the list of defendants---Suit property in the first suit was exactly the same share i.e., 1/5th of the total property of deceased father, which she later claimed as her share in inheritance forming subject matter of the second suit---Perusal of evidence brought forth glaring/stark contradictions on the surface, which had been duly analysed/appreciated by both the courts below---Contradictions in evidence indicated that the petitioner's depositions in evidence were not trustworthy---Such contradictions were not minor discrepancies on trivial issues but went to the roots of the matter and shook the basic stance of the petitioner---High Court observed that when the entire evidence of the petitioner in both suits was read as a whole, it appeared that the ring of truth was conspicuously missing on account of glaring contradictions---Sufficient/cogent evidence proved that the impugned mutation/tamleek was legally made and the same was never objected to by the deceased father during his life time---Presence of the father of the parties during the proceedings of the first suit before the Trial Court was not denied by petitioner's witnesses---Witnesses admit that they came to know about the impugned mutation through the halqa patwari, within 7 to 8 days after the same was sanctioned and the suits were instituted after 12 years---Suit was barred by limitation.

Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801 distinguished.

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

----Preamble---Contradictory evidence---Scope---Contradiction is the act of saying something that is opposite/different in meaning to something else that is said earlier and the same come in the way of inspiring confidence about credibility and veracity of testimony of a witness.

Arif Tareen for Petitioner.

Haji Muhammad Tariq Aziz Khokhar for Respondents.

Muhammad Shafiq, Civil Judge/Research Officer.

Fakhar Bashir, Civil Judge/Research Officer.

2022 M L D 1129

[Lahore (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

MUHAMMAD FAROOQ and others---Petitioners

Versus

MEMBER (JUDICIAL-II) BOARD OF REVENUE, PUNJAB LAHORE and others---Respondents

Writ Petition No.4399 of 2017, decided on 6th September, 2021.

Constitution of Pakistan---

----Arts.23, 24 & 201---Constitutional petition---Allotment of government land, resumption of---Revenue hierarchy---Land in question was allotted to the predecessor of petitioners under the Tube Well Sinking Scheme by the order of District Collector---Said land was resumed in favour of the State by the Deputy Commissioner/Collector---Appeal and revision filed by the petitioners against the said resumption order were dismissed by Revenue Authorities---Petitioners filed Constitutional petition before High Court which was accepted and impugned resumption orders was declared without authority---District Collector again resumed the land in question in favour of the State and appeal thereagainst was also dismissed---ROR was accepted by Member (Colonies) Board of Revenue observing that "the area lying outside the Municipal Committee limits should be restored and the request of allottee for allotment of alternative land shall be considered in the light of the policy of Government on the subject"---Allottee in compliance of direction of High Court approached the District Collector who third time resumed the land in favour of the State on the ground that the land/area was situated within the prohibited zone and its proprietary rights could not be granted---District Officer (Revenue) directed the allottee to apply for allotment of alternative land to the Board of Revenue---Allottee filed an application before Member (Colonies) Board of Revenue which was accepted by the Board with direction to relevant Authorities to implement the order---District Collector filed a time barred review petition in ROR before Member Board of Revenue which was accepted---Petitioner contended that date of allotment had to be kept in view while deciding the question of resumption of land to an allottee; that resumption had been declared to be without lawful authority and could not be re-opened except any fresh ground was available which was not existing in the record; that the decision of High Court were binding on all the Courts/Tribunals/Board of Revenue and the public functionaries; that at the time of allotment, the land in question was not falling within the prohibited zone---Held, that instructions qua the prohibited zone were that the distance should be measured as required when the allotment was made and not when the proprietary rights are conferred---Date of allotment was the crucial and was to be kept in view while deciding the propriety rights of the land to an allottee---District Officer (Revenue) and Board of Revenue had to consider such date for the approval/rejection of the prayer---Stance taken by the law officer was not logical that since the land in question fell within the prohibited zone, therefore, it could not be allotted to the petitioner under the scheme; and that at the time of earlier allotment to the predecessor of the petitioners, it was not pointed out whether that land fell within the prohibited zone or outside, so the matter related to the inquiry---Parties were contesting the matter in third round of litigation before different forums---At the time of allotment to predecessor of the petitioners, the land in question did not fall within the prohibited zone---Constitutional petition was accepted accordingly.

Province of Punjab through District Collector Vehari v. Ghulam Muhammad 1994 SCMR 975 rel.

Ahmad Mansoor Chishti for Petitioner.

Malik Altaf Hussain Raan, Assistant Advocate General, Punjab for Respondents.

2022 M L D 1138

[Lahore]

Before Safdar Saleem Shahid, J

PROVINCE OF PUNJAB through Additional District Collector, Jhang and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, JHANG and 2 others---Respondents

Writ Petition No.9498 of 2017, decided on 17th January, 2022.

(a) Punjab Rented Premises Act (VII of 2009)---

-----S.20---Colonization of Government Lands (Punjab) Act (V of 1912), S.24---Constitution of Pakistan, Art.199---Constitutional petition---Application for deposit of rent---Power of imposing penalties for breach of conditions---Alternate remedy, availability of---Scope---Respondent (tenant) filed an application before the Rent Tribunal with the contention that he being lessee of the petitioners (landlords) from long time was paying rent without any default, however, they refused to accept the rent for January, 2016, therefore, he sought permission to deposit the same as per law---Rent Tribunal accepted the application and directed the respondent to deposit the rent for the year 2016 and in the meanwhile restrained the petitioners from ejecting the respondent---Petitioners assailed the order passed by Rent Tribunal through an appeal, which was dismissed---Validity---Section 24 of Colonization of Government Lands (Punjab) Act, 1912, had empowered the Collector (petitioner) that in case of breach of conditions of tenancy he might proceed against the lessee---Petitioners had an alternate remedy---So far as the impugned order was concerned, the same was in accordance with record produced by the petitioners, as there was nothing in writing till the time regarding approval of the recommendations of the District Assessment Committee for enhancement of the lease amount---No need to frame any issue or to record evidence because it was just an application seeking permission to deposit rent---Courts below had not created bar for the petitioners to proceed against the lessee, if there was any violation or breach of contract on his part; even the impugned orders were not applicable to the issuance of notice to the lessee for recovery of the arrears, if any---Constitutional petition to the extent of granting permission to deposit the lease amount for the year 2016 was dismissed.

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

----S.24---Power of imposing penalties for breach of conditions---Scope---Section 24 of Colonization of Government Lands (Punjab) Act, 1912, empowers the District Collector to initiate proceedings against the lessee in case of any violation of the lease agreement---Lease agreement can also be cancelled and the lessee can be ejected from the land leased out to him but for such action a mechanism procedure has been provided---Department may issue notice for recovery of the arrears, if due, from the lessee and in due course of law proceedings can be initiated.

Sardar Javed Ali Dogar, Assistant Advocate General for Petitioner.

2022 M L D 1158

[Lahore]

Before Shahid Karim, J

SUI NORTHERN GAS PIPELINES LTD. through authorized attorney---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Energy (Petroleum Division) and another---Respondents

Writ Petition No.63814 of 2020, decided on 19th July, 2021.

(a) Constitution of Pakistan---

----Art.199---Administrative arbitrariness---Legitimate expectancy, principle of---Past practice---Deviation without notice---Petitioner was natural gas supply company and aggrieved of decision of Oil and Gas Regulatory Authority (OGRA) determining Re-Gasified Liquefied Natural Gas (RLNG) Weighted Average Sale Provisional Price---Validity---High Court judicially reviewed OGRA decision to prevent administrative arbitrariness---Purpose was to protect petitioner company against injustice on account of unnecessary and uncontrolled discretionary power---Basic notions of fairness in administrative law such as need for consistent explanations, for explanations of changes in policy for an agency to follow its own rules for prospectively when changing policies etc.---Regular past practice of OGRA was to adopt certain benchmark for determination of provisional price---Such was a practice directed at petitioner company personally and remained operative until changed by OGRA suddenly and without notification of its intent to do so---Such act provided basis for legitimate expectation to petitioner company that settled practice was to be implemented and not departed from---Past practice of OGRA to decide the matter of provisional price in a particular manner was an expectation which qualified as legitimate---Such was clear, unambiguous and made by a person with actual authority---If such past practice had to be abandoned or changed, it could only be done after prior notice and hearing--- Policy was adopted by adjudication and any change in second adjudication could not be arbitrary nor could be retroactive---Re-visiting of past practice was to conform to rules of fairness and legitimate expectation---Sudden volte face by OGRA impacted petitioner company enormously financially and had a spiral effect on the consumers generally---High Court set aside the decision of OGRA as the same was null and without lawful authority---High Court directed OGRA to determine UFG for consumers on RLNG distribution network at actual average UFG of last financial year and policy guidelines issued by Federal Government for the period in dispute---Constitutional petition was dismissed, in circumstances.

Administrative Law Treatise, Vol. 1 208-209 (2nd ed. 1978); Administrative Law and Regulatory Policy, Problems, Text and Cases by Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein Adrian Vermeule and Michael E. Herz (seventh ed.); R.V Panel on Takeovers and Mergers Ex. p. Datafin [1987] 1 Q.B.815 at 824; De Smith's Judicial Review (Eighth Edition); Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy" (2002) Harv L.R.16, 97-106; Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) [1985] A.C 374 and Administrative Law by H.W.R. Wade & C.F. Forsyth (Tenth Edition) rel.

(b) Discretion---

----Principle---In order to achieve goal of non-arbitrary agency decision making, agencies must supply standards that discipline their discretion---Such rule requires decisional consistency to safeguard expectation.

Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, 412 U.S 800, 808-809 rel.

Syed Ali Zafar, Mehak Zafar, Zahid Nawaz Cheema and Munib Ahmad Sheikh with Adil Nisar, G.M. (Legal) SNGPL for Petitioner.

Haroon Dugal, Samia Khalid, Ali Raza, Shehzad Ahmad Cheema, Farukh Ilyas Cheema for Respondent No.2-OGRA.

Asad Ali Bajwa, D.A.G.

2022 M L D 1179

[Lahore]

Before Anwaar Hussain, J

Messrs SUPERIOR CONNECTIONS (PVT.) LIMITED through Director---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of National Health Services, Regulations and Coordination and others---Respondents

Writ Petition No.46179 of 2021, decided on 17th August, 2021.

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

----S.8 & Preamble---Pakistan Medical Commission---Functions and duties---Regulatory statutes---Scope---Provisions of Pakistan Medical Commission Act, 2020 are regulatory in nature with clarity as to powers and functions of bodies constituted thereunder---Regulatory statutes do not operate in vacuum rather they regulate a particular field, profession etc. and more often than not provide adjudicatory mechanism with respect to measures taken or orders / directions passed by such regulatory bodies or their officials--- Any remedy provided under regulatory statute is limited and confined to adverse orders, directions and steps / measures taken by regulatory bodies with respect to their regulatory functions under their respective statutes.

(b) Administration of justice---

----Tribunals---Jurisdiction---Tribunals created under their respective special laws possess limited jurisdiction and cannot be equated with the Courts of general jurisdiction.

Muhammad Shafi & Co. v. National Bank and others PLD 1995 Lah. 360; Digital Radio Paging Ltd. v. Pakistan Industrial Credit and Investment Corporation and others 2003 CLD 1612; Sheikh Abdul Hakeem v. Shamsuddin PLD 2008 Quetta 14 and Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 rel.

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

----Ss.37 & 47---Public Procurement Regulatory Authority Ordinance (XXII of 2002), Ss.5(2) & 16(1)---Alternate and efficacious remedy---Joint venture---Procurement, question of---Petitioner company was aggrieved of award of Joint Venture Agreement executed between Pakistan Medical Commission and respondent company for holding and conducting different computer based MCQs test such as Medical and Dental Central Admission Test (MDCAT)--- Plea raised by Petitioner was that Joint Venture Agreement was violative of the provisions of Public Procurement Regulatory Authority Ordinance, 2002---Validity---Overriding effect under S.47 of Pakistan Medical Commission Act, 2020 was confined and limited to regulatory functions of the Commission---Such effect was to come into play only where some other law was to impinge upon regulatory functions of the Commission or bodies established under Pakistan Commission Act, 2020, in respect of which legislative intent was clear---Public Procurement Regulatory Authority was a specialized regulatory body with respect to procurement and was under obligation to administer the statute i.e. Public Procurement Regulatory Authority Ordinance, 2002---Interpretation of Public Procurement Regulatory Authority Ordinance, 2002, in the matter was of vital importance keeping in view the judicial deference---Public Procurement Regulatory Authority was appropriate forum to decide any question of law as to whether Joint Venture Agreement fell within the scope of procurement or not as well as whether funds forming subject matter of Joint Venture Agreement attracted definition of term 'public funds' under Public Procurement Regulatory Authority Ordinance, 2002---High Court forwarded the matter to Public Procurement Regulatory Authority for decision in the light of Public Procurement Rules, 2004--- Constitutional petition was disposed of accordingly.

Laiba Noor v. Pakistan Medical Commission through Secretary, PMC and another (W.P No.6534/2021/BWP); Rauf B. Kadri v. State Bank of Pakistan and another PLD 2002 SC 1111; Muhammad Masood v. Bank of Punjab (BoP) through President and 3 others 2013 CLD 1810 and Avishek Goenka v. Union of India and another AIR 2012 SC 2226 ref.

Saad Rasool, Advocate assisted by Aitzaz A. Chaudhry, Anum Azhar, Shan Saeed Ghumman, Muhammad Yousaf, Taaha Hayat, Adeel Khokhar, Mujtaba Amjad and Hassan Majeed for Petitioners.

Mirza Nasar Ahmad, Additional Attorney General along with Asad Ali Bajwa, Deputy Attorney General for Federdation.

Barrister Ch. Muhammad Umar, assisted by Mufti Ahtesham ud Din Haider and Rana Muhammad Ansar for Respondent No.3-PMC.

Azim Azfar for Respondents Nos.8 and 9.

2022 M L D 1195

[Lahore]

Before Abid Aziz Sheikh and Muhammad Sajid Mehmood Sethi, JJ

LIAQAT ALI---Appellant

Versus

DISTRICT COLLECTOR, GUJRAT and 4 others---Respondents

I.C.A. No.474 of 2015, decided on 7th September, 2021.

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

----S.54---Land acquired for public purpose---Admittedly the notifications were issued in the proceedings under Ss. 4, 6 & 17(4) of Land Requisition Act, 1894, in which right of appeal was provided under S.54 of the Act against original order/award---Intra Court Appeal was not maintainable under proviso 3 of the Law Reforms Ordinance, 1972; hence, dismissed.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Muhammad Aslam Sukhera and others v. Collector, Land Acquisition and others 1998 SCMR 167 and Mst. Nasreen Tariq v. Government of Punjab through Secretary Housing and Physical Planning Department and 3 others 2007 MLD 980 ref.

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

----S.3---Intra court Appeal before High Court----Scope---Original Order---Scope---Application before High Court where law provided appeal/review/revision against original order---Non-availability of appeal---"Original order" might not necessarily be the one which was impugned in the constitutional petition but the test was that whether the original order passed in the proceedings was subject to appeal, revision or review under the relevant law.

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

----Preamble---Law Reforms Ordinance (XII of 1972), S.3---Non availability of appeal---Order by Tribunal---"Original order"---Scope---"Original order" in S. 3(2) of the Law Reforms Ordinance, 1972, was used in generic sense in contradistinction to orders passed in appeal, revision or review---Award by the Tribunal under the Land Acquisition Act, 1894, was an "original order" for the purposes of bar contained in proviso to said section.

Muhammad Aslam Sukhera and others v. Collector Land Acquisition, Lahore Improvement Trust, Lahore and another PLD 2005 SC 45 and Lahore Development Authority through Director-General and another v. Commissioner, Lahore Division, Lahore and another 2009 CLC 86 ref.

Waseem Abbas for Appellant.

Barrister Malik Shahzad Shabbir and Junaid Razzaq, Assistant Advocate General Punjab for Respondents.

2022 M L D 1203

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

ASHIQ MUHAMMAD (DECEASED) through L.Rs and others---Petitioners

Versus

MUHAMMAD USMAN (DECEASED) through L.Rs.---Respondents

Writ Petition No.5287 of 2009, decided on 6th September, 2021.

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

----O.XX, R.7---Compromise decree---Application for preparation of decree sheet was concurrently dismissed on ground that the same was moved after lapse of 6 years without any logical reason for such delay---Held, that no limitation had been provided for drawing up such a decree sheet---Litigant did not have to remind the court/its office about its obligation to draw up a decree after announcement of judgment---Duty of Court to prepare/complete the decree sheet in line with its judgment---Punishing a party for default of the Court was not fair---Constitutional petition was allowed and Trial Court was directed to prepare/draw up the decree sheet accordingly.

Ghulam Rasool v. Deputy Director, Military Lands and Cantonment Board and 2 others 1982 CLC 550 and Mst. Mumtaz Begum v. Said Zaman and 11 others 1993 CLC 1202 ref.

(b) Administration of justice---

----Act of Court, omission or neglect---No person should suffer for the act/omission/neglect of the court or its officials, act of court should not prejudice anyone.

Muhammad Ijaz and another v. Muhammad Shafi and another 2016 SCMR 834 and Mian Muhammad Talha Adil v. Mian Muhammad Lutfi 2005 SCMR 720 rel.

(c) Administration of justice---

----Technicalities, not to defeat justice---Mere technicalities could not defeat the rights of any person---Although certain technicalities of law, where right is vested in the opposite party by efflux of time or where public policy demands so, may become relevant, however, the same could not be given any preference by defeating the ends of justice, depriving a party of substantive rights, which accrued to it under the law and principle of justice.

Imtiaz Ahmad (1) Ghulam Ali, (2) Ch. Khushi Muhammad, S.D.O. (Canal) Gojra, Layallpur District, and (3) District Election Officer, Layallpur PLD 1963 SC 382 rel.

Ch. Mudasser Saghir for Petitioners.

Ex parte for Respondents.

2022 M L D 1216

[Lahore]

Before Asim Hafeez, J

Messrs GHULAM MUHAMMAD & SONS---Petitioner

Versus

WATER AND SANITATION AGENCY (WASA), FAISALABAD through Director General and others---Respondents

Writ Petition No.31153 of 2020 and others connected petitions, heard on 9th February, 2021.

Punjab Public Procurement Rules, 2014---

----R.56---Public procurement---Procurement agency sought declaration of invalidity of bid---Claim of additional performance security---Scope---Petitioners were successful bidders who were asked by procuring agency to provide additional performance security--- Provincial Government contended that rational for claiming additional performance security was to secure financial exposure and to avert financial losses to procuring agencies/government, in the events of contractual defaults---Effect---Petitioners / contractors could not be held liable for alleged failure to submit additional security, when procuring agencies did not act in accordance with relevant clause of bidding documents---High Court declined to make declaration of invalidity as provision of R.56 of Punjab Public Procurement Rules, 2014, was not available---Constitutional petition was disposed of accordingly.

Ch. Muhammad Ibrahim, Riaz Karim Qureshi, Saleem Ahmad Khan, Muhammad Ahsan Bhoon, Humayoun Rashid, Ch. Abdul Majid, Rana Shahzad Khalid, Ali Sufian Chan, Aziz-ur-Rehman Sheikh and Shahid Iqbal Sanotra for Petitioners.

Sardar Qasim Hassan Khan, A.A.G., Asif Ali, Technical Advisor, Finance Department.

Arshad Nadeem, Executive Engineer, Highway, Department.

Zakir Shah, Deputy Director Legal C&W Department.

Asad-ur-Rehman, SDO Highway Pakpattan.

Muhammad Yasin, SDO, Highway Division Narowal.

Basit Ameer Bakht, SDO, Buildings Pakpattan.

Rai Mudasir Nawaz, Law Officer on behalf of Finance Department for Respondents.

2022 M L D 1248

[Lahore]

Before Muzamil Akhtar Shabir and Jawad Hassan, JJ

RIZWAN BAIG RUBI---Appellant

Versus

KHURRAM SHAHZAD and 9 others---Respondents

I.C.A. No.70693 of 2021, decided on 15th November, 2021.

Contempt of Court Ordinance (IV of 2003)---

----Ss.3, 5 & 19---Contempt of court---Contempt proceedings---Nature of---Presumption attached to orders of Superior Courts---Discretion of Court with regard to initiation and continuation of contempt proceedings---Scope---Appellant impugned orders of Single Judge High Court whereby contempt of court petition filed by appellant was dismissed by Single Judge High Court on the ground that the order allegedly not complied with by alleged contemnors had become infructuous after appeals filed by the alleged contemnors before Supreme Court were withdrawn by them with permission to make fresh applications to appropriate authority by fulfilling legal conditions---Validity---Alleged contemnors / respondents had availed remedy in terms of orders of Supreme Court and therefore order passed originally by Single Judge High Court had merged with order of Supreme Court whereby respondents had been permitted to file fresh applications and such remedy was availed by respondents ---- High Court had rightly observed in impugned order that the order on which basis contempt proceedings were sought had become infructuous --- Presumption was attached to orders of superior courts that were within jurisdiction and any order of High Court contrary to order / judgment of Supreme Court could not be implemented by invoking power of contempt of court---Court itself was to see if its order was implemented or not and where court did not intend to proceed in terms of contempt for non-compliance / violation of its order for reasons of its own, in exercise of discretionary power, then any other court, much less an appellate court, could not interfere to direct such court to proceed with contempt proceedings---Single Judge High Court had refused to entertain the matter in light of order of Supreme Court and there was no reason to interfere in such order, which did not suffer from any illegality---Intra-court appeal was dismissed, in circumstances.

Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another PLD 2016 SC 358; Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 and West Pakistan Water and Power Development Authority through its Chairman v. Chairman, National Industrial Relations Commission PLD 1979 SC 912 rel.

Safdar Iqbal Gondal for Appellant.

2022 M L D 1267

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

SHEERAZ KHAN and another---Petitioners

Versus

DEPUTY COMMISSIONER, CHAKWAL and 3 others---Respondents

Writ Petition No.1993 of 2021, decided on 17th June, 2021.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Constitutional jurisdiction, discretionary in nature---Scope---Policy matters---Policy making domain though rested with the executive but it could not be unbridled or uncontrolled---High Court could examine the propriety of a policy and pass any order qua its implication if in its opinion the same was ultra vires, smacked some mala fide or offended the fundamental rights guaranteed under the Constitution---Constitutional jurisdiction was discretionary which could only be invoked in extraordinary and exceptional circumstances---No direction could be passed to the Government or the Executive to frame a particular policy or a policy which was person specific.

Government of Punjab and others v. Aamir Zahoor-ul-Haq and others PLD 2016 SC 421; Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others PLD 2015 SC 6 and Dossani Travels (Pvt.) Ltd. and 4 others v. Messrs Travels Shop (Pvt.) Ltd. and others 2013 SCMR 1749 rel.

(b) Punjab Civil Administration Act (III of 2017)---

----Ss.13 & 16---Constitution of Pakistan, Arts. 9, 15, 16 & 199---Constitutional jurisdiction---Scope---Policy matters---Calamity affected area---COVID-19, control, spreading of---Petitioners challenged the intervention of police with the religious event that was being conducted since ancient times---COVID-19 pandemic caused disorder in the whole world and certain restrictions had been imposed by the Government/Executive, in order to cure and control the affected of pandemic, whereby large gathering and the public events had been prohibited---Section 16 of Punjab Civil Administration Act, 2017 empowered the Deputy Commissioner to restrain the public from holding meeting, procession, assembling or gathering without his permission---When executive was performing its functions in accord with rules, policy in vogue, invocation of constitutional jurisdiction would amount to intrusion in the executive authority, which was against the principle of trichotomy of power under the Constitution---Constitutional petition was dismissed accordingly.

Sardar Abdul Raziq Khan for Petitioners.

2022 M L D 1280

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Mian MUHAMMAD ARSHAD---Petitioner

Versus

SABA GUL and 5 others---Respondents

Writ Petition No.26960 of 2021, decided on 20th May, 2021.

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

----Ss.13 & 25-A---Civil Procedure Code (V of 1908), S.39 & O.XXI, R.5---Decree of maintenance allowance and dowry articles---Execution proceedings, transfer of---Power to transfer execution proceedings outside the district---Jurisdiction of the Family Court---Scope---Family/Executing Court itself transferred the case to the other district where the judgment-debtor was residing---Objection of husband/judgment-debtor was that only the High Court had the power to transfer a matter/case out of district---Held, that in terms of S.25-A of Family Courts Act, 1964 (the Act 1964), Family Court, acting as a Executing Court, was not authorized to make an order to transfer an execution petition directly to any other Court of competent jurisdiction not only in the same district but also to other district ---Powers in terms of S.13(4) of the Act, 1964 were within district and not outside district---Provisions of S.39 and O.XXI, R.5 of the Civil Procedure Code, 1908, could not have invoked---Execution proceedings/petition came within the expression "proceedings" appearing in S.25-A of the Act, 1964---High Court set aside the impugned orders and judgments passed by both the Courts and declared the transfer of execution proceeding/petition itself by the Family/Executing Court directly outside district, illegal and without lawful authority---High Court directed that in future execution proceeding/petition arising out of decree passed by the Family Court would be transferred keeping in view the spirit of S.25-A of the Act, 1964 ---Constitutional petition was allowed, in circumstances.

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

----Preamble---Civil Procedure Code (V of 1908), preamble---Proceeding---Scope---"Proceeding" was not defined in the Family Courts Act, 1964, as well as Civil procedure Code, 1908---Proceeding included all possible steps in an action from its commencement to the execution of the judgment.

N.-W.F.P., Peshawar v. Naeemullah Khan 2001 SCMR 1461 ref.

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

----Ss.13, 17 & 25-A---Civil Procedure Code (V of 1908), preamble---Decree of maintenance allowance and dowry articles---Execution proceedings, Transfer of-Power to transfer proceedings outside the district---Jurisdiction of the Family Court---Scope---Family/Executing Court itself transferred the case to the other district where the judgment-debtor was residing---Contention of the decree-holder(respondent) was that power was vested in Family Court to execute decree like a Collector for the purpose of recovery of payment of decree keeping in view S.13(3) of the Family Courts Act, 1964 (' the Act, 1964'), therefore, provisions of C.P.C were applicable---Held, that although, in terms of S.17 of the Act, 1964, provisions of C.P.C and Qanun-e-Shahadat, 1984, would not apply, however, general principles of C.P.C could be invoked by a Family Court for due determination of justice only when no procedure was provided in the Act 1964 and there was no conflict between the provisions of C.P.C and the Family Court Act, 1964---High Court set aside the impugned orders and judgments passed by both the Courts and declared the transfer of execution proceeding/petition itself by the Family/Executing Court directly outside district, illegal and without lawful authority---High Court directed that in future, execution proceeding/petition arising out of decree passed by the Family Court would be transferred keeping in view the spirit of S. 25-A of the Act, 1964 ---Constitutional petition was allowed, in circumstances.

Ghulam Murtaza v. Additional District Judge (II), D.G. Khan and 2 others 1999 CLC 81; Muhammad Aslam v. Ayyan Ghazanffar PLD 2012 Lah. 392 and Muhammad Majid Iqbal v. Judge Family Court, Dunya Pur 2021 CLC 644 ref.

Muhammad Shahzad Shaukat, Taha Shaukat, Muhammad Ali Raza Saeed, Muhammad Uzair and Mirza Waqas Baig for Petitioner.

Ch. Muhammad Majeed-III for Respondents.

2022 M L D 1310

[Lahore]

Before Tariq Saleem Sheikh, J

ABID alias Chirri---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.411-B of 2022, decided on 8th April, 2022.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Possession of narcotics---Bail, grant of---Accused was a previous convict---Scope---Accused was alleged to have been found in possession of 510 grams of charas---Record showed that the accused-petitioner was convicted and was placed on probation for one year in terms of S.5 of the Probation of Offenders Ordinance, 1960---Another FIR was registered against him after the completion of the probation period---No allegation was levelled against accused-petitioner that he violated the terms of his bond while it was in force---No proceedings under S.7 of the Ordinance, 1960, were initiated against the accused-petitioner and he was never sentenced for the original offence---In such circumstances, accused-petitioner was entitled to the benefit of S.11(2) of the Ordinance, 1960, and the said conviction could not be pressed as a ground to refuse him bail in the present case---Application for pose-arrest bail was allowed, in circumstance.

Inspector-General of Police Punjab, Lahore and others v. Mahmood Ikram 1998 SCMR 765; Zulfiqar Abbas v. The State 2007 PCr.LJ 306; Mumtaz Ali and others v. District Returning Officer and others 2008 SCMR 751 and Nasrullah and another v. Haji Usman Ghani and 5 others 2002 CLC 1925 rel.

Nadeem Nawaz Khan Vardag for Petitioner.

2022 M L D 1331

[Lahore (Multan Bench)]

Before Farooq Haider, J

MUHAMMAD SHAHID YOUSAF---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.38 of 2021, decided on 1st February, 2021.

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

----S.344---Power to postpone or adjourn proceedings---Imposition of costs---Scope---While interpreting a provision of law, approach is to be dynamic, purposive and meaningful, while also keeping in view of prevailing circumstances, need of the time, challenges being faced and to be faced in future and of administration of justice, therefore, words "on such terms" used in S.344 of Cr.P.C. are not without any significance and can be safely interpreted as including power/authority to impose costs while granting adjournment and such power may be considered as inherent in the Court for safe administration of justice, otherwise, aforementioned words would become redundant; it goes without saying that such interpretation will enhance the cause of justice, minimize unnecessary adjournments and save the system of administration of justice.

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

----S.133---Order of examinations---Cross-examination---Absence of counsel---Cross-examination by accused---Scope---Where accused had not produced his counsel for cross-examination of prosecution witnesses, then it was appropriate for the Trial Court to ask the accused to cross-examine the witnesses himself, and in case of refusal by accused, to cross-examine the witnesses itself, instead of the closing right of cross-examining the witnesses.

Sheikh Jamshed Hayat for Petitioner.

2022 M L D 1363

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD KHALID and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Civil Revision No.2029 of 2015, decided on 15th July, 2015.\

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

----S.12---Civil Procedure Code (V of 1908), O. VII, R.11---Contract Act (IX of 1872), Ss.11 & 28---Suit for specific performance---Rejection of plaint---Agreements in restraint of legal proceedings void---Competence of minors to contract---Scope---Petitioners assailed the concurrent rejection of plaint of their suit for specific performance---Courts below had formulated two questions to decide the fate of the plaint filed by the petitioners; first one was regarding the restraints imposed by the petitioners to avail the legal remedy available in the law and the second was the execution of the agreement by the minors---Validity---No restriction could be imposed on any party from enforcing their rights provided by the law---Contents of the agreements revealed that respondents were barred from availing the remedy of appeal or revision, etcetera provided in the law---Minors were not competent under S. 11 of the Contract Act, 1872 to enter into any type of the contract but in accordance with law---Even otherwise, it looked very ludicrous, that on one hand executants/sellers were being restrained from enforcing their legal rights in case of any dispute and on the other hand, petitioners had knowingly allowed the minors to execute the agreement---Petitioners themselves were responsible for creation of an invalid document---Revision petition was dismissed.

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

----S.28---Agreements in restraint of legal proceedings void---Scope---Document must be construed and read as a whole and S.28 of Contract Act, 1872, applies where there is absolute restraint against the enforcement of rights.

Rasheed-ur-Rehman Khan v. Mian Iqbal Hussain PLD 2006 SC 418 fol.

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

----S.28---Agreements in restraint of legal proceedings void---Scope---Section 28 of Contract Act, 1872, declares any contract to be void restricting "absolutely" the parties from enforcing their rights under or in respect of any contract.

Messrs Pakistan State Oil Company Ltd through Business Manager and 4 others v. Malik Hadi Hussain and another 2013 YLR 2769 fol.

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

----S.115---Civil revision---Scope---Concurrent findings on facts should not be interfered in routine, but in an extra-ordinary circumstance, when the courts below have committed serious jurisdictional error or legal infirmity.

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

----S.115---Civil revision---Scope---High Court, in the case of concurrent findings, normally does not interfere unless the same are a result of exercise of jurisdiction not vested in the courts below.

Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984; Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 and Abdul Ghafoor and others v. Kallu and others 2008 SCMR 452 ref.

Malik Muhammad Aslam for Petitioner.

Barrister Usama Ahmad for Respondents.

2022 M L D 1378

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

ABDUL RAZAQ and others---Petitioners

Versus

IFTIKHAR HUSSAIN and others---Respondents

Civil Revisions Nos.1814 and 1815 of 2009, decided on 13th March, 2019.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance---Non-payment of balance sale consideration---Effect---Respondents filed suit for specific performance of agreement to sell against vendors alleging therein that they had settled the sale with them---Petitioners, within couple of months, filed a suit of similar nature contending therein that the vendors had agreed to sell the land to them---Suits were clubbed with each other---Trial Court granted money decree to the respondents whereas the petitioners were equipped with conditional decree for specific performance of their contract directing them to pay the outstanding amount within one month---Although a receipt was presented before the Appellate Court to claim that outside the Court, the decretal amount had already been paid but the Appellate Court did not agree that the condition was genuinely fulfilled---Appellate Court dismissed the suit filed by petitioners, allowed the appeal of respondents and decreed their suit for specific performance with the condition of payment of balance sale consideration---Validity---Payment by petitioners outside the Court to a person (an alleged attorney of the vendors) who was not duly competent in this behalf could not be made basis to hold that condition was fulfilled as per mandate of the decree---Operation of decree of the petitioners was never suspended---Once the suit of petitioners stood dismissed, they got out of the picture leaving no pedestal for them to resist the suit of respondents---Suit of respondents could only have been resisted by vendors---Revision petitions were dismissed.

Usama Ahmad for Petitioners.

Abdul Wahid Chaudhry for Respondents.

2022 M L D 1411

[Lahore (Multan Bench)]

Before Muhammad Shan Gul, J

FAROOQ ARSHAD and 2 others---Petitioners

Versus

Mst. SHAZIA WASEEM and 3 others---Respondents

Civil Revision No.557-D of 2021 converted into Writ Petition No.2048 of 2022, heard on 10th February, 2022.

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

----S.115---Constitution of Pakistan, Art. 199---Civil revision---Conversion of proceedings---Principle---Respondent raised objection to maintainability of revision application---Petitioners contended that high Court had jurisdiction to convert one type of proceedings into another---Validity---Revision was filed within one month of the judgment passed by Lower Appellate Court and it was not hit by limitation or for that matter by doctrine of laches---High Court had power to convert one type of proceedings into another kind---High Court converted Civil Revision into a Constitutional petition---Objection was disposed of accordingly.

Muhammad Akram v. DCO, Rahim Yar Khan and others 2017 SCMR 56; Capital Development Authority, Islamabad through its Chairman v. Khuda Bakhsh and 5 others 1994 SCMR 771 and Shamsul Haq and others v. Mst. Ghoti and 8 others 1991 SCMR 1135 rel.

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

----Ss.12, 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Constitution of Pakistan, Art.199---Constitutional petition---Interim injunction---Suit for specific performance of agreement to sell, declaration and injunction was filed by respondents / plaintiffs---Interim injunction declined by Trial Court was allowed by Lower Appellate Court to respondents / plaintiffs---Validity---All three factors leaned prominently and conspicuously in favour of respondents / plaintiffs---Lower Appellate Court rightly granted interim relief to respondents / plaintiffs---All and any correspondence with respect to development of societies to and from regulatory authorities and administrative departments of government took place between deceased predecessor-in-interest of respondents / plaintiffs---In all such correspondence, it was deceased predecessor-in-interest of respondents / plaintiffs who was mentioned and acknowledged as a Developer---Names of petitioners / defendants were not mentioned anywhere in such correspondence---All amounts deposited by way of dues were deposited by deceased predecessor-in-interest of the respondents / plaintiffs and not petitioners / defendants---All three alive witnesses supported oral agreement to sell and respondents / plaintiffs had a prima facie case---Petitioners / defendants had already resorted to selling plots on their own, balance of inconvenience also tilted in favour of respondents / plaintiffs---High Court modified the order passed by Lower Appellate Court and allowed sale in respect of 50% plots on commercial side and 50% plots on residential side to petitioners / defendants---Such sale was subject to confirmation by Trial Court during pendency of the suit---Constitutional petition was dismissed accordingly.

Puri Terminal Ltd. v. Government of Pakistan through Secretary, Ministry of Communications and Railways, Islamabad and 2 others 2004 SCMR 1092; Regional Commissioner of Income-Tax Corporate Region, Karachi and 2 others v. Sham Muhammad Baloch 1998 SCMR 376; Niagara Mills (Pvt.) Ltd. v. Wisal Ahmed Monoo and another 2020 CLC 1074 and Saleem Mahmood Akhtar and 2 others v. Assistant District Officer and 5 others 2020 CLC 1094 rel.

Tariq Mehmood Dogar for Petitioners.

Ch. Daud Ahmad Wains for Respondents.

2022 M L D 1444

[Lahore]

Before Tariq Saleem Sheikh, J

WAQAR HUSSAIN BHATTI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.25327-B of 2021, decided on 24th February, 2022.

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

----S.489-F---Dishonoring of cheque---Registration of FIR---Delay---Effect---Delay in registration of FIR is not always fatal for prosecution, more particularly in cases involving white collar crimes or where entire evidence is documentary---Court considers impact of delay in every case with reference to its peculiar facts and circumstances---In offence under S.489-F, P.P.C. delay is of little consequence as it is based on dishonor of a cheque.

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

----S.498---Penal Code (XLV of 1860), Ss.24 & 489-F---Dishonoring of cheque---Pre-arrest bail, grant of---Company cheques---Accused was arrested for issuing seven chequer during the course of business transactions which all cheques were dishonored---Validity---Foundational elements to constitute an offence under S.489-F, P.P.C. are: (a) cheque should be valid; (b) it should be issued with dishonest intent; (c) it should be for repayment of a loan or fulfillment of an obligation; and (d) it should have been dishonored--- Term "dishonestly" has been defined in S.24, P.P.C. to mean doing anything with intention of causing wrongful gain to one person or wrongful loss to another person--- Accused was authorized on behalf of a proprietary concern owned by his real brother, to operate his account and to issue cheques on his behalf---No material was available on file which could suggest that accused had issued any cheque dishonestly---Non-availability of incriminating material against accused or non-existence of sufficient ground, including a valid purpose, for making arrest of accused person in case by investigating officer, as a corollary was a ground for admitting accused to pre-arrest bail, and vice versa---Pre-arrest bail was allowed, in circumstances.

Zahid Mahmood v. Mst. Sabrina Iqbal 2004 CLD 930; Zahid Mehmood v. Tahir Aziz Chughtai and 2 others 2010 CLC 1345; Shahzad Waseem and another v. The State 2007 YLR 1378; Syed Shan Abbas v. The State and another 2014 YLR 882; Smt. Sova Mukherjee v. Rajiv Mehra 1998 (2) ALD Cri 171; G. Rukkumani v. K. Rajendran 2001 CriLJ 3120) and Krishna Trading Company v. State of Gujarat 2017 GLH (2) 87 ref.

Naseeb Gul v. Amir Jan and another 2013 PCr.LJ 175 and Shahzada Qaiser Arfat alias Qaiser v. The State and another PLD 2021 SC 708 rel.

Daud Ahmad Asif for Petitioner.

Muhammad Mustafa Chaudhry, Deputy Prosecutor General with Riaz/ASI.

Ch. Muhammad Mansha for the Complainant.

2022 M L D 1474

[Lahore]

Before Asim Hafeez, J

Mst. MUKHTAR BEGUM and 5 others---Petitioners

Versus

Mst. MUMTAZ ASGHAR (DECEASED) through L.Rs. and 2 others---Respondents

Civil Revision No.3426 of 2011, decided on 30th March, 2022.

Specific Relief Act (I of 1877)---

----S.12---Limitation Act (IX of 1908), Art.113, second part---Suit for specific performance of agreement to sell---Limitation---Concurrent findings of facts by two Courts below---Suit filed by respondents / plaintiffs was decreed in their favour by Trial Court and Lower Appellate Court maintained the judgment and decree---Validity---No specific date was provided for execution of conclusive document-registered lease deed - or timelines for transfer of plot, subjected to condition of raising construction, whereafter lease hold rights were transferable---Matter fell within second part of Art. 113 of Limitation Act, 1908, when no specific date for performance was prescribed---Cause of action otherwise arose upon execution of General Power of Attorney, by legal heirs of deceased on 14-01-1999 - an act challenging interests of respondents / plaintiffs, wherefrom suit filed was within 3 years on 20-11-2001---Factum of rejection of earlier plaint was inconsequential as it was on the premise of non-maintainability of suit for declaration---High Court declined to interfere in concurrent findings of facts by two Courts below as there was no illegality committed by the Courts---Revision dismissed, in circumstances.

Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others 2010 SCMR 115; Harsan v. Iqbal Pervaiz and 9 others 2016 YLR 2516 and Tariq Shabeer v. Muhammad Ijaz 2007 YLR 1369 distinguished.

Chiragh Din and another v. Akram Mohiuddin and 4 others 2008 MLD 252; Syed Hakeem Shah (Deceased) through LRs and others v. Muhammad Idress and others 2017 SCMR 316; Mst. Bhaghan and 2 others v. Sh. Muhammad Latif and 2 others PLD 1981 Lah. 146; Sami ul Haq v. Dr. Maqbool Hussain Butt and others 2001 SCMR 1053; Mst. Umatul Mobeen v. Muhammad Aziz 2010 YLR 1216 and Sinaullah and others v. Muhammad Rafique and others 2005 SCMR 1408 ref.

Sh. Usman Karim-ud-Din for Petitioners.

Syed Ali Hassan and Rai Asif Mehmood Kharal for Respondents Nos.1(i) to 1(v).

2022 M L D 1501

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan, J

Mst. GHULAM FATIMA, (DECEASED), through Legal Heirs---Petitioners

Versus

MUHAMMAD KHAN and others---Respondents

Civil Revision No.466-D of 2012, heard on 8th February, 2022.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and injunction---Limitation---Gift---Mutation---Proof---Concurrent findings of facts by two Courts below---Misreading and non-reading of evidence---Petitioner / plaintiff assailed gift mutation on the plea of fraud and misrepresentation---Trial Court and Lower Appellate Court concurrently dismissed suit and appeal filed by petitioner / plaintiff--- Validity--- Both witnesses of gift did not state about fulfillment of third ingredient of gift i.e. delivery of possession of suit property by donor to donees---Respondents / defendants (donees) were beneficiaries who failed to prove factum of disputed gift and gift mutation which was not sustainable under the law--- Each entry in revenue record had given fresh cause of action to aggrieved person---Adverse entries in revenue record, even if allowed, but remained unchallenged, did not have effect of extinguishing rights of a party against whom such entries had been made---Any transaction of document which was result of fraud or misrepresentation could neither be perpetuated nor protected on the ground of expiry of period of limitation, whenever such transaction was assailed in Court of law---High Court set aside judgments and decrees passed by two Courts below as the same suffered from mis-reading and nonreading of evidence---High Court decreed the suit filed by petitioner / plaintiff and cancelled mutation in question as the same was result of fraud and misrepresentation---Revision was allowed, in circumstances.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342; Muhammad Nawaz and others v. Sakina Bibi and others 2020 SCMR 1021; Muhammad Sarwar v. Mumtaz Bibi and others 2020 SCMR 276; Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her LRs and others 2021 SCMR 73; Farhan Aslam and others v. Mst. Nuzba Shaheen and another 2021 SCMR 179; Ghulam farid and another v. Sher Rehman through LRs 2016 SCMR 862 and Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 SC 338 rel.

Sh. Zamir Hussain for Petitioners.

Malik Amjad for Respondents.

2022 M L D 1523

[Lahore]

Before Asim Hafeez, J

GHULAM MUSTAFA---Petitioner

Versus

ANILA SHAHZADI and others---Respondents

Writ Petition No. 67276 of 2021, decided on 31st December, 2021.

Family Courts Act (XXXV of 1964)---

----S.5, Schd. & S.17-A---Suit for maintenance----Interpretation of S.17-A(3) of Family Courts Act, 1964 [Punjab Amendment]---Retrospective Effect---Respondent (wife) filed application before Execution Court seeking benefit of subsection (3) of S. 17-A of Family Courts Act, 1964 and 10 percent annual increment was granted---Appeal field by petitioner (husband) was dismissed by Appellate Court---Question was whether rights extended under decree were intended to be annulled /cancelled by virtue of Punjab Amendment of Family Courts Act, 1964---Court had disallowed annual increment while passing decree which decree had attained finality---Held, that subsection (3) of S.17-A of Family Courts Act, 1964, did not manifest any such intention---Legislature had not intended to make it applicable retrospectively extending opportunity to re-open decrees passed and final---Substantive rights, accrued and vested, could not be destroyed or impaired by a new law unless that law, by its express provision or by necessary intendment, was retrospective in operation---No such intent was evident or could be gathered from perusal of subsection (3) of S.17-A of Family Courts Act, 1964, which could not be stretched to disturb rights created and obligations prescribed in terms of decree---Subsection (3) of S.17-A Family Courts Act, 1964, could not be construed to have annulled or substantially altered judgment and decree in the present case---Constitutional petition was allowed.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 rel.

Malik Sir Buland Naich for Petitioner.

2022 M L D 1531

[Lahore]

Before Ch. Abdul Aziz, J

MUHAMMAD AZAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.23859-B of 2022, decided on 17th May, 2022.

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

----S.497---Penal Code (XLV of 1860), Ss. 324, 109 & 34---Attempt to commit qatl-i-amd, abetment and common intention---Bail, refusal of---Successive fire shots---Scope---Accused sought bail after arrest in a case wherein he was alleged to have waylaid the victim and inflicted three fire shots on his right calf and thigh---Traumas inflicted to injured were on the lower limbs of his person but the accused person's skills of marksmanship were not under consideration before the Court and instead from the canvassed accusations his intention and knowledge to commit qatl-i-amd was to be assessed---Intention of an accused manifested the moment he pressed the trigger of his weapon while pointing it towards a living human being, more importantly in case of successive fire shots---Grant of bail on the laboured pretext that the victim of murderous assault was in receipt of injuries on his non-vital organ amounted to artificially stretching the law in favour of an offender who encroached upon the rights of another for taking his life---In cases of single shot, the benefit of bail to an accused could be extended on the ground that he opted not to repeat the act of firing, presuming his ultimate intention was only to inflict an injury and his act was not aimed at taking the life of victim---Likewise, in a case wherein a victim is assaulted through a club, hatchet or knife, generally the injury is inflicted at the intended locale and if it is on the non-vital organ or not serious in nature, it can be pleaded a circumstance in favour of granting bail---Femoral vein/artery and popliteal vein/artery are located in the thigh and calf which if damaged can lead to the death of a person within five to seven minutes---Accused was the sole person held responsible by the witnesses for inflicting all firearm injuries to victim---Material collected during investigation reasonably connected the accused with the commission of crime, rendering him disentitled to the concession of post arrest bail---Petition merited no acceptance, thus was dismissed, in circumstances.

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

----S.324---Attempt to commit qatl-i-amd---Scope---Language of S. 324, P.P.C., is explicit in sense and leaves no room for discussion that an act of accused towards taking the life of his adversary is made punishable with imprisonment upto 10 years---If such act of the accused culminates in infliction of injury to the victim, he also becomes liable to the punishment provided for the nature of hurt received by the victim.

Federation of Pakistan through Secretary Ministry of Law and another v. Gull Hassan Khan PLD 1989 SC 633 and Shahbaz Ahmad and another v. The State PLD 1994 Lah. 344 rel.

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

----S.324---Criminal Procedure Code (V of 1898), S. 497---Attempt to commit qatl-i-amd---Bail---Scope---Offence under S. 324, P.P.C. entails punishment upto 10 years and attracts the stringency of prohibitory clause of S. 497, Cr.P.C.---Concession of post arrest bail can be extended to an accused only if the reasonable grounds to connect him with the commission of crime are found lacking from the record---Existence of reasonable grounds is to be ascertained from the material comprising upon nature of accusations set out in the First Information Report, statements of witnesses recorded under S.161, Cr.P.C., the medical evidence and other material collected during investigation.

Federation of Pakistan through Secretary Ministry of Law and another v. Gull Hassan Khan PLD 1989 SC 633 and Shahbaz Ahmad and another v. The State PLD 1994 Lah. 344 rel.

Sardar Khurram Latif Khan Khosa for Petitioner.

Ms. Noshe Malik, Deputy Prosecutor General with Muhammad Saleem Khan SI.

2022 M L D 1555

[Lahore]

Before Masud Abid Naqvi, J

BUSHRA BIBI and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.22594 of 2019, decided on 30th September, 2021.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), Ss.29 & 29-A---Summary suit for recovery of money---Liability of legal representative signing---Signature essential to liability---Scope---Respondent filed a summary suit for recovery of amount mentioned in cheque along with mark up against the legal heirs of the executant---Trial Court framed a preliminary issue regarding liability of petitioners to be sued---Validity---Petitioners who were neither makers, drawers, or endorsers nor acceptors of cheque and even presentation for encashment and dishonouring of the alleged cheque during life time of executant could not have legally authorized respondent to institute suit under O. XXXVII, R. 2, C.P.C., against petitioners, hence, the suit was not maintainable before the Trial Court---Writ petition was accepted and the Trial Court was directed to return the plaint.

Malik Shahbaz Ahmad for Petitioner/defendants.

2022 M L D 1577

[Lahore (Multan Bench)]

Before Sohail Nasir, J

BILAL AHMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.750 of 2019, heard on 15th December, 2021.

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

----Ss.302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Dying declaration---Scope---Accused was charged for committing murder of the deceased by inflicting churri blows---Motive was that the deceased separated the electricity meter from the accused, due to which he was angry and committed the offence---Ocular account of the incident had been furnished by two eyewitnesses---Version of both the eye-witnesses before they attended the witness box in Trial Court was about five accused including accused---When statement of deceased was recorded, while he was in injured condition, he did not state presence of any other person except accused and he was silent about the presence of any eye-witness also---Alleged dying declaration therefore was factually incorrect and in conflict with the story setup in FIR by complainant---Dying declaration on the face of it appeared to be doubtful because after it was completed, a sufficient space was left where incomplete thumb impression of injured than deceased had been shown and it made no difficulty to say that his thumb impression was obtained on a blank paper---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Taj Muhammad v. The State (Criminal Appeal No.1717 of 2010) rel.

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

----Art.46---Dying declaration---Scope---Dying declaration must be free from any outside prompting that means that at the relevant time no one had to be there to influence the deceased---Not only that, but also no one met the deceased before his statement---Prosecution could not claim that there was no outside prompting when alleged dying declaration was made in presence of complainant and the witnesses.

Mst. Zahida Bibi v. The State PLD 2006 SC 255 rel.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of sixteen hours in lodging the FIR---Scope---Accused was charged for committing murder of the deceased by inflicting churri blows---Occurrence took place at about Maghrib prayer time and matter was informed to police after about sixteen hours---No explanation whatsoever had been given in FIR for that delay---Such unexplained delay in lodging the FIR was fatal to the prosecution case---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence at the most was confirmatory/corroborative piece of evidence, therefore, if the direct evidence was disbelieved, the medical evidence would play no role for the purpose of conviction.

Prince Rehan Iftikhar Sheikh and Rana Faisal Fayyaz for Appellant.

Syed Nadeem Haider Rizvi, Deputy District Public Prosecutor for the State.

2022 M L D 1603

[Lahore (Multan Bench)]

Before Asjad Javaid Ghural, J

MUHAMMAD IMRAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.157 of 2012, heard on 11th November, 2021.

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

----Ss.302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Improvement made by eyewitnesses---Scope---Accused in furtherance of their common intention committed murder of deceased by firing---Motive behind the occurrence was that the deceased was supporting rival group of accused party in a panchayat, due to which occurrence took place---Ocular account had been furnished by two eyewitnesses---One of the witnesses while appearing in the dock in the court room deposed that on 12.09.2010 at about 08/08.30 p.m., he along with witnesses was present in Panchyat in order to settle the differences between two families---During Panchyat a quarrel took place between them---One person attracted at the spot and tried to separate them---At the instigation of co-accused (since acquitted) the accused snatched pistol from said person and made a fire shot at deceased, which landed at his neck and he succumbed to the injuries at the spot---Evincing from the record that said witness in order to bring home the guilt of the accused made dishonest improvements in his statement before the Trial Court on material particulars of the incident, which were duly confronted to him during cross-examination---Once a witness proved to have made material improvements, his testimony could not be relied upon---Other witness while appearing in the dock in the court room deposed that on the fateful day, on hearing voice of fire, he attracted at the spot and saw deceased lying in injured condition, whereas, the accused and his co-accused decamped from the spot---From the very testimony of said witness it was abundantly clear that he reached at the place of occurrence on hearing the noise of fire shot when the occurrence was already over and as such, he was not in a position to state what happened at the time of alleged occurrence---Testimony of said witness could not be safely relied upon against the accused---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Akhtar Ali v. The State 2008 SCMR 06 and Sardar Bibi and another v. Munir Ahmad and others 2017 SCMR 344 rel.

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

----Ss.302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Inordinate delay in conducting post-mortem on the dead body of the deceased---Scope---Accused in furtherance of their common intention committed murder of deceased by firing---Medical Officer held autopsy on the dead body of deceased on 12.09.2010 and observed two ante-mortem fire arm injuries on his neck including an exit wound---Cause of death was injury to major blood vessels and vital organ leading to shock and death---Probable duration between injuries and death was immediate whereas between death and post mortem examination 12-24 hours---Said inordinate delay in conducting the post-mortem examination of dead body was indicative of the real possibility that the time had been consumed by the prosecution for manoeuvring and concocting the prosecution story and managing the eye-witnesses against the accused---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Muhammad Ilyas v. Muhammad Abid alias Billa and others 2014 SCMR 1698; Faqeer Muhammad v. Shahbaz Ali and others 2016 SCMR 1441 and Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54 rel.

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

----S.342---Statement of the accused---Scope---If the prosecution evidence was discarded, the statement of an accused is to be considered in its entirety and accepted as a fact.

Mehrban Shah v. The State 1969 SCMR 839 rel.

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

----Ss.302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Defence plea---Scope---Accused in furtherance of their common intention committed murder of deceased by firing---Stance of the accused was that in a Panchyat, which had been convened to settle the differences between two families, an altercation took place when one person of one family hurled abuses to the mother of the accused, which infuriated him who slapped that person---Brother of said person aimed pistol at the accused and due to intervention of other members fire went off from the pistol, which hit the deceased causing injury at the neck of the deceased---Injuries on the person of the deceased stood substantiated by deposition of the Medical Officer and the definite conclusion of the Investigating Officer that fire hit to deceased accidentally during scuffle provided full corroboration to the defence of the accused---Admitted fact that accused arrived at Panchyat empty-handed---Admittedly, there was no premeditation, no animus or motive to kill the deceased---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Malik Warris Khan and another v. Ishtiaq alias Naga and others PLD 1986 SC 335 rel.

Malik Imtiaz Haider Maitla for Appellant.

Ashfaq Ahmad Malik, Deputy Prosecutor General for the State.

Nemo. for the Complainant.

2022 M L D 1621

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

Mst. KUNDAN MAI---Petitioner

Versus

JUDGE FAMILY COURT, MULTAN and others---Respondents

Writ Petition No.20358 of 2021, decided on 30th December, 2021.

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

----Ss.14 & 21A---Phrase 'a decision given'---Alternate remedy, availability of---Suit for dower accompanied with application for interim injunction---Petitioner/plaintiff/wife of the deceased claimed

5-Marla house to be transferred to her as dower on ground that the same was specifically mentioned in Nikahnama; that her husband had handed over the house to her in his lifetime and promised transfer of the same to be processed; and that respondents/legal heirs of the deceased were adamant to dispossess her from her lawful possession---Petitioner also filed application for interim order seeking protection of property which was dismissed by the Trial Court---Held, that petitioner's application for interim injunction had been finally dismissed and had resulted into a final decision declaring the petitioner not entitled to interim relief during the pendency of her suit for recovery of dower---Relief claimed by the petitioner under S.21-A of the Family Courts Act, 1964, for preservation/protection of property, subject matter of the suit had been finally decided against her by the impugned order---Dismissal of the application under S.21A of the Act, refusing interim relief of protection of property during the pendency of Family suit was 'a decision given', which was appealable in terms of S.14 of the Act---Without availing the said remedy, direct constitutional petition was not maintainable---Constitutional petition was disposed of accordingly.

Rao Muhammad Owais Qarni v. Mst. Tauheed Aisha and others 1991 MLD 1097; Mst. Naureen v. Ehsan Sabir, Family Judge, Faisalabad and 2 others 2010 CLR 110; Imtiaz Ahmad Khan v. Mst. Aqsa Manzoor and others PLD 2013 Lah. 241; Nargis Naureen v. Judge Family Court, Multan and others PLD 2018 Lah. 735 rel.

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

----S.14---Appealable order---Phrase 'decision given'---Interlocutory order pertaining to final determination---Scope---Every order passed during the pendency of a family suit could not be treated as an interlocutory order if the said order finally determined an issue.

Muhammad Zaffar Khan v. Mst. Shehnaz Bibi and 2 others 1996 CLC 94 rel.

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

----S.14---Appealable order---Final decision---Where an express provision of law provided a remedy to enforce a right and the court passes an order relating to the same, which order even if an interlocutory order, finality was attached to such order for a particular purpose provided by the said provision of law, same would become a challengeable decision under S. 14 of the Family Courts Act, 1964.

Ch. Shakeel Ahmad Sindhu for Petitioner.

2022 M L D 1636

[Lahore (Multan Bench)]

Before Sohail Nasir, J

TANVEER ABBAS---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.620 of 2016, heard on 9th February, 2022.

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

----Ss. 302(b), 364, 201, 404, 148 & 149---Qatl-i-amd, kidnapping or abduction in order to murder, causing disappearance of evidence of offence or giving false information to screen offender, dishonest misappropriation of property possessed by deceased person at the time of his death, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused were charged for abducting brother of complainant with an intention of his qatl-i-amd and after his murder, accused persons had screened the dead body---Motive behind the occurrence was that the accused had suspicion that deceased had illicit relations with his wife---According to complainant, the accused and proclaimed offender were arrested and she was confident---Complainant further responded that she met both the accused in Police Station---Prosecution witness, in his examination-in-chief, stated the date of arrest of accused when he joined Inspector---Said date was in complete contrast to the date given by complainant---Prosecution witness was also self-conflicted when he, in cross-examination, specifically replied that as per his information accused were arrested in case after 5/6 days of the occurrence---From that angle the dates became the same which complainant maintained in her deposition---On the other hand, Investigating Officer without any ambiguity and in clear words claimed that he arrested accused and proclaimed offender from a Chak---Taking into account that contradictory position, subsequent story of recovery of dead body, had come under serious doubts---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside the convictions and sentences recorded by the Trial Court.

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

----Ss.302(b), 364, 201, 404, 148 & 149---Qatl-i-amd, kidnapping or abduction in order to murder, causing disappearance of evidence of offence or giving false information to screen offender, dishonest misappropriation of property possessed by deceased person at the time of his death, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of dead body at the instance of accused---Scope---Accused were charged for abducting brother of complainant with an intention of his qatl-i-amd and after his murder, accused persons had screened the dead body---Official witness stated in his examination-in-chief that accused, proclaimed offender and co-accused led to the recovery of dead body---Undoubtedly, that statement was in full contrast to the account of complainant---Declaration of Investigating Officer was entirely different who was never of the view that accused or his co-accused got recovered the dead body, even in his cross-examination, there was nothing to suggest that, if the dead body was recovered either at the instance of accused or any of his co-accused---Identification memos prepared by the Investigating Officer did not indicate with clarity that accused or his co-accused after disclosure led the police party to the Canal and got recovered dead body---All the said documents at the most showed that either the place of murder or the venue of canal was pointed by accused and his co-accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside the convictions and sentences recorded by the Trial Court.

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

----Ss.302(b), 364, 201, 404, 148 & 149---Qatl-i-amd, kidnapping or abduction in order to murder, causing disappearance of evidence of offence or giving false information to screen offender, dishonest misappropriation of property possessed by deceased person at the time of his death, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Scope---Accused were charged for abducting brother of complainant with an intention of his qatl-i-amd and after his murder, accused persons had screened the dead body---Official witness asserted that accused persons came to him and made the confession turn by turn---On confrontation from his statement recorded under S.161, Cr.P.C and cursory declaration he had been found under improvement when he added that accused and his co-accused made confession turn by turn, in his earlier statements it appeared to be joint extra judicial confession which had no evidentiary value---Conduct of said witness was highly objectionable for the reason that if he got the important information, why he did not appear before the police on the same day and why he came forward for his statement under S.161 Cr.P.C---Delayed statement of an important witness without offering any explanation was not reliable---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside the convictions and sentences recorded by the Trial Court.

The State v. Kamal Khan alias Maloo and others 1993 SCMR 1378 and Muhammad Sadiq and another v. The State PLD 1960 SC 223 rel.

(d) Criminal trial---

----Extra-judicial confession---Scope---Extra-judicial confession under the recognized principles is the weakest type of evidence and no conviction can be recorded on the basis thereof.

Gull Muhammad alias Gullu and another v. The State and another 1974 PCr.LJ 400 rel.

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

----Ss.302(b), 364, 201, 404, 148 & 149---Qatl-i-amd, kidnapping or abduction in order to murder, causing disappearance of evidence of offence or giving false information to screen offender, dishonest misappropriation of property possessed by deceased person at the time of his death, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Scope---Accused were charged for abducting brother of complainant with an intention of his qatl-i-amd and after his murder, accused persons had screened the dead body---Statement of prosecution witness was found under heavy smoke of doubts---Said witness claimed that at midnight he had seen that co-accused was handing over a 'Kassi' and jute bag to accused---Said fact appeared that such evidence had been introduced with a specific purpose to give a strength to the extra-judicial confession; where it was stated that accused had gone to co-accused for taking 'Kassi' and jute bag and it was used to move the dead body to Canal---If, said person had witnessed what he stated and he told that fact to complainant as responded in cross-examination, the complainant was supposed to disclose that important fact while reporting the matter to police so on that reason alone statement of said witness was of no consequence for the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside the convictions and sentences recorded by the Trial Court.

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

----Ss. 302(b), 364, 201, 404, 148 & 149---Qatl-i-amd, kidnapping or abduction in order to murder, causing disappearance of evidence of offence or giving false information to screen offender, dishonest misappropriation of property possessed by deceased person at the time of his death, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empty at the instance of accused---Reliance---Scope---Accused were charged for abducting brother of complainant with an intention of his qatl-i-amd and after his murder, accused persons had screened the dead body---Record showed that an empty was recovered at the instance of accused, pistol was recovered after six days---However, it appeared that both the recoveries most probably were made from the same place so it was a serious question that if the accused got recovered empty what was the hurdle in his way also to get recovered the pistol on that day---Said fact had smashed the authenticity of the positive report of firearm expert which now at the most was a piece of paper with no supportive outcome for prosecution---Circumstances established that the prosecution had badly failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside the convictions and sentences recorded by the Trial Court.

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

----Ss. 302(b), 364, 201, 404, 148 & 149---Qatl-i-amd, kidnapping or abduction in order to murder, causing disappearance of evidence of offence or giving false information to screen offender, dishonest misappropriation of property possessed by deceased person at the time of his death, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Acquittal of co-accused persons on the basis of same testimony of witnesses---Effect---Accused were charged for abducting brother of complainant with an intention of his qatl-i-amd and after his murder, accused persons had screened the dead body---Record showed that the allegations of abduction and the murder of deceased was almost against all accused including the present accused---Four out of five accused had been acquitted by the Trial Court by disbelieving the statements of witnesses so no question arising to believe the same evidence qua the present accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside the convictions and sentences recorded by the Trial Court, in circumstances.

Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 rel.

Prince Rehan Iftikhar Sheikh for Petitioner.

Muhammad Laeeq ur Rehman, Assistant District Public Prosecutor for the State.

Khawar Siddiq Sahi and Malik Sajjad Haider Maitla for the Complainant.

2022 M L D 1693

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

Mst. TAHIRA PARVEEN---Petitioner

Versus

DISTRICT JUDGE, LAYYAH and 2 others---Respondents

Writ Petition No.153 of 2014, decided on 29th October, 2021.

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

----Ss.17 & 25 ---Custody of minor---Welfare of minor as paramount consideration rather than the right of the parents---Minor boy aged seven year---Mother (petitioner) contracted second marriage and had children from second marriage---Father failing to make maintenance and develop closeness---Respondent (father) filed a petition for custody of minor ,which was dismissed by the Trial Court---Appeal filed by the respondent was allowed---Case of the petitioner/mother was that minor was not interested in residing with the respondent/father as latter had always neglected the minor and had not made any attempt to strengthen bonding between them, would run counter to the welfare of minor to compel the minor to live with such a parent - Respondent/father denied petitioner/mother's assertion and claimed that Islamic Law mandated the handling over of a male child to father after the child attained the age of seven years---Exercise of choice by the minor was not relevant, more particularly, when petitioner (mother) was married to a stranger---Validity---Question as to who was entitled to hold custody of a child under the law did not normally arise during the subsistence of a marriage---Only after separation and /or divorce between the parents the parties become bitter and angry and such separation in itself creates tension between them, which generally leads to hostile and vengeful behaviors in the society---Such like situation is imperative to understand that children are a trust from Allah (Subhanahu Wa Ta"ala) and they should be treated and looked after in a proper manner and hence, while dealing with issues of custody of a child, his or her welfare is always the supreme consideration---Law that a mother has right to the custody of her son till the age of seven years and thereafter it goes to father, is not an absolute and invariable rule----Welfare of the child is given paramount importance ---Court has to consider child's welfare and interest over that of parents rights as Courts in the cases of custody and guardianship exercise parental jurisdiction----Welfare is to be determined by taking in to many factors including the choice of a minor provided such minor is capable of forming such preference---Welfare of a minor being a question of fact has to determined on case to case after appraising evidence---Admittedly, respondent had stopped paying the maintenance to the minor---Failure of respondent/father to develop closeness with the minor coupled with failure to make payment of maintenance and intelligent preference of minor disentitled the respondent from the guardianship of minor---Judgment of learned appellate court below was set aside and that of trial court was restored---Constitutional petition was allowed, in circumstances.

Muhammad Bashir v. Mst. Ghulam Fatima PLD 1953 Lah. 73; Muhammadan Law, page 257, Volume II, Edition 1929; Mst. Hifsa Naseer v. A.D.J Gujar Khan and 3 others PLD 2017 Lah. 153 and Sunan Abu Dawood, Volume 3, Hadith No.2277 at page 80 (Publisher: Darussalam) rel.

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

----Ss.17 & 25---Mother contracting second marriage---Right of custody---Ordinarily, a woman is entitled to custody of a minor but she forfeits her right of custody on contracting second marriage---Such rule is held not absolute and invariable as special consideration may require the custody of a minor to be retained by the woman despite having contracted second marriage---In Islam consideration of welfare of a minor is paramount and all rules of personal as well as other factors contributing to the entitlement of custody are ultimate guidebook for determining the welfare of minor---Disentitlement from custody due to second marriage is not an absolute rule---Remarriage of father and his having children from such marriage is also considered as an impediment

Muhammad Bashir v. Mst. Ghulam Fatima PLD 1953 Lah. 73; Mst. Hifsa Naseer v. A.D.J Gujar Khan and 3 others PLD 2017 Lah. 153 and Amar Ilahi v. Mst. Rashida Akhtar PLD 1955 Lah. 412 ref.

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

----Ss.17 & 25---United Nations Convention on the Rights of the Child, Art.12(1)---Custody of minor---Minor's right of choice---Right of choice also based on the practice of companions---Choice of a minor in matters relating to his well being is also recognized under the Convention on the Rights of Child,1989-Children have a right to be heard in all matters affecting them and their views should be given due weightage in accordance with their age and maturity---Choice of a minor qua right of the parents for his or her custody has its traces during the period of Prophet (Sallallahu Alaihi Wasallam) and His Companions , as well as international law.

Sunan Abu Dawood, Volume 3, Hadith No.2277 at page 80 (Publisher: Darussalam); Article 12(1), Abdul Razzaque and 3 others v. Dr. Rehana Shaheen PLD 2005 Kar. 610; Mst. Aisha v. Manzoor Hussain and others PLD 1985 SC 436 and Sardar Hussain and others v. Mst. Parveen Umar and others PLD 2004 SC 357 rel.

Ch. Muhammad Akram along with Petitioner-in-person and Muhammad Umair ("the minor") for Petitioner.

Sajjad Hussain Tangra along with for Respondent No.3 in-person.

2022 M L D 1720

[Lahore]

Before Faisal Zaman Khan, J

MUHAMMAD LIAQAT ALI---Petitioner

Versus

MAJID ALI and others---Respondents

Writ Petition No.221102 of 2018, decided on 20th December, 2021.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss.2(b) & 22---Ejectment---Default in payment of rent and utility bills, misuse of property, violation of the terms/conditions of tenancy agreement and expiry of tenancy---Application for leave to contest was rejected and ejectment was ordered subject to return of security amount---Separate order regarding recovery of arrears of rent/utility bills issued on the same date---Petitioner/landlord contended that Rent Tribunal had no occasion to have framed issues when the eviction of the respondent was ordered; that Rent Tribunal had to straightaway order for the recovery of arrears of rent and outstanding bills; and that the Tribunal's order for ejectment subject to return of security amount was illegal---Validity---Respondent/tenant, upon service of notice, had to file application seeking leave to contest within stipulated time---Respondent could defend the application only if the leave to contest was granted---If the Tribunal accepted the application for leave to contest, the same would be treated as written reply; and in case such application was refused, the Tribunal was bound to pass a final order---Ejectment was ordered on ground of expiry of period of tenancy and not on the ground of default---Tribunal having refused the respondent's application for leave to contest and passed a final order of ejectment on the ground of expiry of tenancy (and not as default), it had no jurisdiction, especially through an interim order to frame issues or to further adjudicate upon the matter, especially so when there was no rebuttal to the contents of the ejectment petition---Constitutional petition was partially allowed setting aside the interim order of the Tribunal qua framing of issues.

Mian Umar Ikram ul Haque v. Dr. Shahida Hasnain and another 2016 SCMR 2186 and Haji Muhammad Latif v. Muhammad Sharif and others 2021 SCMR 1430 rel.

Punjab Urban Rent Restriction Ordinance (1959), Ss. 13(6) & (8) distinguished.

(b) Punjab Rented Premises Act (VII of 2009)---

----S.22---Ejectment---Rent Tribunal, power/discretion of---Scope---When the application for leave to contest was rejected, the Rent Tribunal was bound to pass a final order---Such order would not absolve the Tribunal of its duty to satisfy itself about the veracity of the case of the landlord and after applying its judicious mind it would pass the final order and not to allow the ejectment petition at the outset on the ground that since the application for leave to contest was rejected, hence, under S.22(6) of Punjab Rented Premises Act, 2009 it was obligated to pass an eviction order.

Haji Muhammad Latif v. Muhammad Sharif and others 2021 SCMR 1430 rel.

(c) Punjab Rented Premises Act (VII of 2009)---

----S.28---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Alternate remedy---Statutory appeal---Scope---Ejectment order being the "final order" within the contemplation of Ss.2(b) & 22(6) of the Punjab Rented Premises Act, 2009 was appealable under S.28 of the said Act; but the respondent opted not to file such an appeal---In view of available alternate remedy, Constitutional petition was not maintainable.

Province of Punjab through Secretary Communication and Works Department, Lahore through Chief Engineer (North/Central) Punjab Highway Department, Lahore v. Yasir Majeed Sheikh and others 2021 SCMR 624; Federation of Pakistan through Secretary Establishment Division, Islamabad v. Shafqat-ur-Rehman Ranjha and others 2021 SCMR 153; Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969 ref.

(d) Punjab Rented Premises Act (VII of 2009)---

----S.22---Ejectment---Stage for determination of arrears/utility bills---Determination of rent/order of payment of rent or outstanding utility bills could only be made by the Rent Tribunal while granting the application for leave to contest and not otherwise.

Mian Abdul Aziz for Petitioner.

Nemo. for Respondents.

2022 M L D 1734

[Lahore (Rawalpindi Bench)]

Before Ch. Muhammad Masood Jahangir, J

QAMMAR ABBAS---Petitioner

Versus

MUMTAZ AHMED MINHAS and others---Respondents

Civil Revision No.597-D of 2014, decided on 24th May, 2022.

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

----Arts.17 & 79---Agreement to sell----Proof---Petitioner/plaintiff instituted suit for specific performance of contract against respondents before Trial Court while plaintiff/ petitioner asserted that first respondent/defendant had sold out subject property to petitioner/plaintiff but instead of performing part of contract first respondent alienated suit property to second respondent----Suit was contested by respondents with the pleas that neither alleged sale was ever offered nor consideration was received----Suit was decreed by Trial Court---Appellate Court reversed the said verdict and dismissed the suit of petitioner---Held, that agreement to sell could not be treated as deed of title ,which in case of denial, being document of financial obligation and future liability was required to be proved in terms of Art.79 of Qanun-e-Shahadat, 1984----As per contents of written statement, respondents explicitly disputed very origin of alleged agreement to sell while raising serious allegations in the sense that it was forged, fabricated and fictitious document and maneuvered by practicing fraud, thus heavy onus rested upon beneficiary/petitioner to establish its genuineness---Alleged sale agreement revealed that persons 'G' & 'S' had witnessed it, but surprisingly only 'G' was examined, whereas 'S' despite availability was withheld, thus per compulsory requirement of Art. 79 of Qanun-e-Shahadat, 1984, document remained unproved---Requirements under Art. 79 of Qanun-e-Shahadat, 1984 were mandatory and without strict compliance thereof any such document (entailing future obligation or financial liability) could not be used as evidence----Testimony of scribe of document could not be used to consider it as statement of marginal witness and when deed writer neither signed agreement to sell as attesting witness nor alleged transaction finalized before him, therefore writer's evidence lacked any importance----Sole marginal witness 'G' was not only real brother of petitioner/plaintiff, rather he did not utter a single word that either purported deal was settled or token amount was paid in his presence---No more supporting witness appeared on behalf of petitioner/plaintiff, thus the available evidence was meager, insufficient and inconsistent---Requisite document was tendered in evidence but was not proved per stern compliance of law, thus, plaintiff had to suffer---Civil Revision was dismissed, in circumstances.

Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Muhammad Yasin through L.Rs and others v. Muhammad Latif and others 2016 CLC 553 and Mst. Azra Gulzar v. Muhammad Farooq and another 2018 CLC 1056 rel.

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

---Arts.72 & 79-Execution of document---Proof of content of a document---Scope---Execution of document would not only mean mere signing or putting thumb impressions, but must be proved that same was so made in presence of witness before whom the document was written, read over and understood by the executants; it would also not only be limited to merely signing a name or affixing thumb impression upon blank sheet of paper so as to prove the document to have been executed by the executants, whose identification should be proved by reliable authentic evidence as well---Execution means series of acts, which would complete the same and mere signing or putting thumb mark would not amount to prove due construction of the document---Unproved document was not admissible in evidence unless strict proof thereof was waived---Exhibition of a document as well as its proof were two different aspects and the latter one was more significant---Civil Revision was dismissed.

Abdul Hameed v. Mst. Aisha Bibi and another 2007 SCMR 1808 rel.

Muhammad Taqqi Hasnain and Muhammad Tariq for Petitioner.

Barrister Osama Amin Qazi for Respondents.

2022 M L D 1745

[Lahore]

Before Shahid Bilal Hassan, J

TUFAIL MUHAMMAD---Petitioner

Versus

NAZAR HUSSAIN and others---Respondents

Civil Revision No.1035 of 2008, decided on 25th May, 2022.

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

----S.12---Limitation Act (IX of 1908), Art.113---Civil Procedure Code (V of 1908), O.VI, R.2 & O.VII, R. 2---Suit for specific performance---Oral agreement---Pleadings---Subject-matter of the suit is immovable property---Limitation---Scope---Plaintiff filed suit for specific performance on the basis of an oral agreement to sell and sought cancellation of mutation against the defendants---One of the defendants (to whom the suit property was sold by other defendants) filed a suit for possession of the suit property on the basis of mutation---Suit filed by plaintiff was concurrently decreed---Validity---Plaintiff had failed to plead and prove the time, date and place of alleged transaction of oral agreement---Plaintiff had not even pleaded the names of witnesses in whose presence bargain of oral agreement was stuck---No receipts with regard to payment of the sale consideration had been brought on record---Description of the suit property had not been given in the plaint---Oral agreement was arrived at between the parties as back as in the year 1975 and the suit was instituted in the year 2002---Suit was barred by limitation---Defendant had a mutation in his favour which had been entered, sanctioned and incorporated in the revenue record after due process, thus, he was entitled to the decree for possession because he was lawful owner of the disputed property---Civil revision was allowed, judgments and decrees passed by courts below were set aside and the suit filed by defendant was decreed.

Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300 and Karamdad v. Manzoor Ahmad and 2 others 2015 CLC 157 rel.

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

----S.12---Civil Procedure Code (V of 1908), O.VI, R.2---Suit for specific performance---Oral agreement---Pleadings---Scope---When a case is instituted on the basis of oral agreement, minute detail of each and every event has to be pleaded and proved.

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

----O.VI, R. 2 & O. VIII, R. 2---Pleadings to state material facts and not evidence---New facts must be specifically pleaded---Maxim: Secundum allegata et probata---Scope, party has to first plead facts and pleas in pleadings and then prove the same through evidence---Party cannot be allowed to improve its case beyond which was originally set up in the pleadings---Principle of "secundum allegata et probata", that a fact has to be alleged by a party before it is allowed to be proved has full backing of provisions of O.VI, R.2 & O.VIII, R.2 of Code of Civil Procedure.

Muhammad Wali Khan and another v. Gul Sarwar and another PLD 2010 SC 965 and Haider Ali Bhimji v. VIth Additional District Judge, Karachi (South) and another 2012 SCMR 254 ref.

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

----Art.113---Specific Relief Act (I of 1877), S. 12---Suit for specific performance---Limitation---Scope---Article 113 of the Limitation Act, 1908, provides three years' limitation from the date fixed for the performance or if no such date is fixed, when the plaintiff has notice, that performance is refused.

Shaigan Ijaz Chadhar and Irfan Khokhar for Petitioners.

Respondents Nos.2 to 4 ex parte on 22-4-2009.

2022 M L D 1762

[Lahore]

Before Raheel Kamran, J

KASHIF MAHMOOD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.166 of 2022, decided on 15th February, 2022.

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

----S.17A(3)---Maintenance---Annual increase in maintenance---Scope---Subsection (3) of S.17A of the Family Courts Act, 1964 is a provision, the application whereof is conditional upon failure or omission of the Family Court to prescribe the annual increase while fixing the maintenance---Increase contemplated under the said provision is mandatory one and the Court is left with no discretion in that regard---Any increase under the said provision is co-extensive in duration with the entitlement for maintenance---Increase in maintenance under S.17A(3) of the Family Courts Act, 1964 is automatic in the sense that no decree is required to be passed and the same is recoverable by the executing court while enforcing the statutory obligation---Rate of annual increase in the maintenance has also been fixed by the legislature to be at ten percent each year and the base value (i.e. the maintenance fixed by the Court) to which such rate of increase applies remains constant throughout the period of application under S.17A(3) of the Family Courts Act, 1964.

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

----S.17A(3)---Maintenance---Annual increase in maintenance---Scope---Provision of S.17A(3) creates a new statutory right of automatic increase in the maintenance fixed by the Court in cases where annual increase has not been prescribed, it does not operate backwards---Fact that statutory prerequisites under S.17A(3) of the Family Courts Act, 1964 (i.e. fixation of maintenance by the Court and omission or failure of the Court to prescribe annual increase in the maintenance) may be drawn from a period prior to the enactment does not render application or operation of the said provision to be retrospective, particularly when the automatic annual increase in the maintenance takes effect from the date of enactment and not the period prior to that.

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

----S.5, Sched.---Constitution of Pakistan, Arts.9 & 14---Suit for maintenance---Enhancement of maintenance---Grounds and scope---Entitlement to maintenance of wife and children is not only a right recognized by law and the religion of Islam but the same is part and parcel of rights to life and dignity, as enshrined in Arts. 9 & 14 of the Constitution---Growth of children, the cost of living, change in status of the parties, change in the expenditures incurred based on needs of children are some of the factors which may provide for a fresh cause of action for the children to demand enhanced maintenance allowance---Superior courts of the country have ensured nourishing rights of the minors in such a manner that applications for enforcement of maintenance allowance filed subsequently to the decree have been held to be maintainable while observing that maintenance was a continuous process and a person entitled to be maintained had a right to approach the court for adequate maintenance allowance---If maintenance allowance granted by the Family Court was insufficient and inadequate, then institution of the fresh suit was not necessary rather Family Court could entertain an application for enhancement of the maintenance allowance---Therefore, there has not been any hindrance in the way of a person entitled for maintenance to seek enhancement thereof in accordance with changed circumstances.

Tanveer Aziz v. Additional District Judge and others 2017 YLR 802; Mst. Kaneez Akhtar v. Abdul Qadoos 2005 MLD 828; Awal Ameer v. Additional District Judge and others 2013 MLD 1342; Sharafat Ali v. Rehana Kauser and others 2010 MLD 1; Khawaja Muhammad Sadiq v. Mst. Khalida Shafqat Khanam 1969 PCr.LJ 72; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 and Lt. Col. Nasir Malik v. Additional District Judge, Lahore 2016 SCMR 1821 ref.

(d) Interpretation of statutes---

----Presumption against retroactivity---Scope---In the absence of any stipulation to the contrary, any change in law affecting substantive rights has prospective effect---Prospective statute operates from the date of its enactment conferring new rights---Retrospective statute, on the other hand, operates backwards and takes away or impairs vested rights acquired under existing laws---However, a statutory provision cannot be termed to have been given retrospective effect merely because it affects existing rights or because a part of the requisites for its action is drawn from a time antecedent to its passing or operation thereof is based upon the statutes that arose earlier.

Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa 2015 SCMR 43; Halsbury's Laws of England (4th Edn., Vol.44 at Para 921) and Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1 ref.

2022 M L D 1777

[Lahore]

Before Jawad Hassan, J

MUHAMMAD TAHIR PERVAIZ and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No.393 of 2022, decided on 7th January, 2022.

(a) Cooperative Societies Act (VII of 1925)---

----S.18-B---Cooperative Societies Election Rules, Rr.9(iii) & 9(iv)---Election---"Limine control", doctrine of---Proxy of the candidates/petitioners submitted the nomination papers on their behalf---Nomination papers were rejected by Convenor Election Sub-Committee and their appeals and revisions were dismissed by Deputy Registrar Cooperative Societies and Secretary Cooperative Societies, respectively---Petitioners contended that Election Rules 9(iii) and 9(iv) neither amounted to disqualification of petitioners nor contained any penal provision; that nomination papers did not lack material particulars nor did they violate the mandatory provisions---Held, petitioners were required to submit their nomination papers by themselves but the same were submitted by someone else---Submission of nomination papers through proxy was violative to Election Rules, 9(iii) and 9(iv) of the Society---If a matter was not covered by Election Rules of the Society, the same should be settled under the provisions of Co-operative Societies Act, 1925, Cooperative Societies Rules, 1927, Bye-Laws of the Society---If some issue remained unattended, the Election Sub-Commission was empowered to consider/decide the same, but its decision would be subject to the right of appeal/revision before competent authorities---Petitioners had exhausted their remedies upto the Secretary Cooperative who decided the revision petition observing the violation of Rr.9 (iii) & 9(iv) of the Election Rules---Constitutional petition was dismissed in limine.

Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189 and Asif Saleem v. Chairman BOG University of Lahore and others 2019 PLD Lah. 407 rel.

(b) Administration of justice---

----Principle---When law requires an act to be done in a particular manner and after fulfilment of certain requirements then it must be done in the very manner and after fulfilment of the very conditions as imposed by the law.

Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189; The Collector of Sales Tax, Gujranwala v. Messrs Super Asia Mohammad Din and Sons 2017 SCMR 1427 and Zia ur Rehman v. Syed Ahmed Hussain 2014 SCMR 1015 rel.

Khalid Ishaq, Advocate Supreme Court for Petitioners.

2022 M L D 1784

[Lahore]

Before Shahid Bilal Hassan, J

NAZAR ABBAS---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and another---Respondents

Writ Petition No.21779 of 2017, decided on 3rd March, 2022.

Civil Procedure Code (V of 1908)---

----O.II, R.6-A---Consolidation of suits ----Petitioner instituted suit for declaration challenging mutation against the respondent, whereas respondent instituted a suit for specific performance agreement with regard to land in disputed khata---Both parties contested each other's suit---Both suits were consolidated and consolidated issues were farmed---Both parties adduced their evidence in support of their respective contentions and had closed their evidence, whereas respondent also closed her evidence in rebuttal---Later on, respondent produced three witnesses but on an objection raised by the petitioner, Trial Court refused to record evidence of the said witnesses---Revisional Court accepted the revision and declared that the right of rebuttal of evidence of respondent in second suit was still open----Held, that in case of similar issues in different suits, suits would be consolidated and decided conjointly on the basis of consolidated trial---In the present case after considering facts of both suits Trial Court consolidated the suits and respondent was treated as plaintiff, whereas petitioner was designated as defendant---Respondent/plaintiff produced her affirmative evidence in support of her contentions and after evidence of petitioner/defendant, respondent/ plaintiff after submitting cancellation report with regard to FIR closed her evidence in rebuttal, meaning thereby, respondent / plaintiff availed of her right to produce affirmative as well as rebuttal evidence in both suits and she could not reopen the case in the garb that rebuttal evidence in connected suit instituted by petitioner was not recorded---Constitutional petition was allowed, in circumstances.

Jhanda through Legal Heir v. Muhammad Younas reported as PLD 1994 Lah. 100 rel.

Rana Muhammad Naeem Khan for Petitioner.

Shahid Mehmood Khan Khilji for Respondent No.2.

2022 M L D 1797

[Lahore]

Before Shahid Jamil Khan, J

WING COMMANDER (R) GUL ABBAS MELA---Petitioner

Versus

COL. (RETD.) IHTISHAM ANWAR---Respondent

Criminal Original No.2107-W of 2013 in Writ Petition No.11786 of 2003, decided on 24th November, 2021.

Contempt of Court Ordinance (V of 2003)---

----S.3---Contempt of Court---Execution of order passed by High Court in constitutional jurisdiction---Scope---Petitioner sought initiation of contempt proceedings against the respondents for non-compliance of the High Court's order whereby a settlement deed was arrived at---Validity---Order passed by the High Court in Constitutional petition could not be taken as a decree, which could be executed in a contempt petition or otherwise---Even if the petitioner's contention that settlement deed had become part of the Court's order was considered, the same could not be enforced, for the reason that terms of settlement deal were changed materially---Contempt jurisdiction was only meant for criminal proceedings against the respondents, if the Court was convinced that contempt of Court was so committed and no direction for amendment in any order could be made in that situation---Contempt petition was dismissed with the observation that the petitioner could approach the appropriate Court of plenary jurisdiction for execution of settlement deed or subsequent events agreed between the parties.

Salman Ijaz for Petitioner.

Tariq Masood and Hassan Tariq for Respondent.

2022 M L D 1805

[Lahore]

Before Asjad Javaid Ghural and Ali Zia Bajwa, JJ

GHULAM SHABBIR alias SHABOO---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.1344 of 2019, decided on 4th November, 2021.

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

----S.342---Statement of accused under S.342, Cr.P.C.---Scope---Statement of accused under S.342, Cr.P.C., was not a mere formality rather it was a bounden duty of the Trial Court to question the accused on proven circumstances or proven evidence---Circumstances/evidence, which was not put to an accused in his examination under S.342, Cr.P.C., could not be used against him and liable to be excluded from consideration.

Muhammad Nawaz and others v. The State and others 2016 SCMR 267 rel.

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

----S.9(c)---Criminal Procedure Code (V of 1898), S.342---Possession of Narcotics---Appreciation of evidence---Benefit of doubt---Incriminating material was not put to the accused during his examination---Effect---Prosecution case was that 1500 grams of charas was recovered from the Gathri of the accused---Perusal of statement of accused under S.342, Cr.P.C. clearly demonstrated that certain material questions/incriminating evidence was not put to the accused while examining him under the said section---First and foremost question as to whether the prosecution evidence was recorded in the presence of the accused and he understood the same was not even put to him---Non-formulating of such a vital question and non-affording the accused an opportunity to respond the same, meant that the entire prosecution evidence being used against him was not recorded in his presence---Said fact alone was sufficient to believe that the Trial Court did not go through the prosecution evidence while recording statement of the accused under S.342, Cr.P.C, and felt it satisfied to put forth the facts of crime report to the accused, which in no manner could take place of prosecution evidence---Recovered charas was never confronted to the accused while examining him under S.342, Cr.P.C. and as such, the same could not be used against him in any eventuality for maintaining his conviction and sentence---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Muhammad Shah v. The State 2010 SCMR 1009 rel.

Mian Muhammad Mushahid Asghar for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

2022 M L D 1825

[Lahore (Multan Bench)]

Before Muhammad Shan Gul, J

RIASAT ALI and others---Petitioners

Versus

YASEEN and others---Respondents

Civil Revision No.414-D of 2021, heard on 2nd February, 2022.

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

----S.9---Abadi Deh---Ownership, question of---Demarcation---Shajra Abadi and Khasra Abadi records---Suit for the possession along with permanent injunction was filed by petitioners---Respondents contended that they were owners in possession of the suit property in the light of judgement passed by a Civil judge and the suit property was situated in Abadi Deh---Trial Court dismissed the suit of petitioners---Petitioners filed appeal before Appellate Court, which was also dismissed---Held, that actual dispute between the parties pertained to demarcation of land which might have been or was to be carried out by the revenue authorities---Factual controversy could only be laid to rest by ordering for being placed on record a demarcation report finalized by the revenue authorities but such report was never brought on record either by the petitioners or by the respondents and was not even summoned either by Trial Court or by the Appellate Court---Onus to prove such issue was on the petitioners and they failed to discharge the onus, the Trial Court as well as the Appellate Court, instead of giving a short shrift to the matter, should have summoned the revenue authorities for the purpose of procuring a demarcation report pertaining to the property in issue ---Most important document being a decisive bearing on the matter was the demarcation report of the suit property, which ought to have been carried out and produced before the Trial Court so as for the Appellate Court to see whether respondents were actually occupying the suit property as being claimed by the petitioners or whether they were occupying some property situated in Abadi Deh which was different from the suit property---If the property was situated in Abadi Deh then there was no question of acquiring exclusive ownership---Correct way for the Trial Court or even the Appellate Court was to have summoned the revenue authorities and ordered for the production of a demarcation report or for that matter order for the production of Shajra Abadi and Khasra Abadi records but Trial Court as well as Appellate Court failed to do which omission had caused a serious miscarriage of justice---Revision was allowed, with direction that the suit filed by the petitioners shall be deemed to be pending before the Trial Court which shall decide the same accordingly.

Mst. Imtiaz Bibi and 6 others v. Malik Attiqur Rehman 2005 YLR 167; Kamal Din v. Manzoor Ahmad 1989 CLC 2148; Muhammad Aslam v. Muhammad Nazir Khan 2008 SCMR 1075; Nooruddin and 11 others v. Abdul Wahid 2000 SCMR 91; Aziz Mukhtar Ahmed and others v. Madrissa Fayyaz-Ul-Haq through Nazim and others 2007 YLR 295; Shana v. Punjab Province through Collector and another 2006 YLR 2874 and Ubedul Haq and 4 others v. Muhammad Tufail and another 2003 YLR 1219 rel.

(b) Administration of justice---

----Duty of Court---When a Court becomes ceased of a matter, it is the bounden duty of the Court to decide the actual dispute by means of all permissible procedures and methods.

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

----S.115---Revisional jurisdiction of High Court---Scope---Discretionary nature---Revisional jurisdiction of the High Court is always discretionary and equitable in nature and no party is entitled to it as of right---High Court observed that no hard and fast rule can be laid down to tie the hands of a superior Court---Superior judiciary always acts in aid of justice subject to the law and the Constitution---Aim of revisional jurisdiction is to see whether the subordinate court have acted with material irregularity resulting into a miscarriage of justice.

Mian Waseem Alam Ansari for Petitioners.

Ex parte for Respondents.

2022 M L D 1848

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Ch. Abdul Aziz, JJ

KHALID MEHMOOD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.951 of 2019 and Murder Reference No.97 of 2019, decided on 7th September, 2021.

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

----Ss.302, 324, 337-F(iii) & 449---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Sentence, reduction---First Information Report lodged with promptitude---Scope---Accused was charged for intruding into the house of by complainant while armed with a pistol and committed murder of 13 years aged nephew of complainant, during this incident complainant and his bhabi (sister-in-law) also received injuries from the pistol shots fired by accused---Information of crime was imparted to police without any uncalled for delay through the statement complainant at RHC---Such prompt imparting of information of crime to police, in the absence of some exceptional circumstances, excluded the possibility of tampering or fabrication, more importantly when the burden of crime was pointed towards a single accused---Circumstances established that the prosecution had proved its case but due to non-proving of motive part of the occurrence, the sentence was reduced to imprisonment for life---Appeal against conviction was dismissed with modification in sentence.

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

----Ss.302, 324, 337-F(iii) & 449---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Sentence, reduction in---Injured witness---Scope---Accused was charged for intruding into the house of complainant while armed with a pistol and committed murder of 13 years aged nephew of complainant, during the incident complainant and his bhabi (sister-in-law) also received injuries from the pistol shots fired by accused---Injured witness was the mother of slain boy and was having abode within the four-walls of the house wherein the incident occurred---Gleaned from the deposition of injured witness that she was house-hold lady thus in accordance with daily pursuit of life she should have been present at a place none other than her house---Acclaimed presence of injured witness could not legally be suspected, more importantly when the defence had not brought anything to the contrary on record---Even otherwise, the presence of a witness, who was an inmate of the house wherein crime scene of a murder case was situated, was to be accepted in the absence of some convincing material to the contrary brought on record by the defence---More importantly, when the injured witness was not having some axe to grind with the assailant---Medical Officer found injured witness to be in receipt of firearm injuries on right arm and back of her chest---No material or circumstance was brought on record by the defence from which it might be insinuated that traumas on the body of injured witness were self-suffered or fabricated---In the absence of some exceptional circumstances put forth by the defence, the injuries on the person of a witness were generally considered stamp of his/her presence at the spot of murder incident---Injured witness unwaveringly encountered the cross-examination of defence and provided confidence inspiring detail of the incident---Said injured witness implicated none but the accused for the injuries on her person as well as the trauma which led to the death of her son---Said witness had an option to spread a wider net so as to implicate in the case at least one more person by attributing him either her own injury or of her son but she opted not to do so---Said aspect reflected positively upon the intrinsic worth of her testimony persuading to accept as correct what she deposed in the court---Injured witness had no rancorous against the accused for his false implication in the case and that too through the tool of substitution---Since the deposition of injured witness was befitting with the medical evidence hence, it was lent to place explicit reliance upon it for adjudicating the guilt of accused---Circumstances established that the prosecution had proved its case but due to non-proving of motive part of the occurrence, the sentence was reduced to imprisonment for life---Appeal against conviction was dismissed with modification in sentence.

Weram v. The State 1985 PCr.LJ 372 and Jahangir and others v. The State NLR 1998 Criminal 687 rel.

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

----Ss.302, 324, 337-F(iii) & 449---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Sentence, reduction in---Unreliable eye-witness---Scope---Accused was charged for intruding into the house of complainant while armed with a pistol and committed murder of 13 years aged nephew of complainant, during the incident complainant and his bhabi (siser-in-law) also received injuries from the pistol shots fired by accused---Though, the complainant claimed to be the inmate of the same house and was in receipt of injury during the incident but an anomaly was noted from his deposition which made him a suspect witness---Site-plan in the case was prepared upon the pointation of witnesses, which was even acknowledged by them during trial---As per site-plan complainant received firearm injury while he was at a distance of nine feet from the accused---Complainant was medically attended by Medical Officer who noticed a bellet shaped metallic body in the left hemithorax which was simply muscle deep---Had that bullet been fired from close proximity of nine feet, its led should have at least penetrated into the thorax region of complainant---Said foregoing shortcoming became more glaring when seen in the context that Medical Officer stated in unequivocal terms that the bullet was fired from a long distance---Derived from the said lacuna, court was constrained to hold that deposition of complainant was a suspect evidence---Complainant received firearm injury in the manner and background suppressed by him, thus it would be against all norms of justice to accept his evidence for awarding conviction to the accused---Moreover, it would go without saying that credibility of a witness was not divisible in nature---On the touchstone of the same principle, High Court observed that since complainant was found to have deposed falsely about the manner and mode in which he received injury, thus it would not be in accordance with the dictates of justice to consider his testimony for awarding conviction to the accused---Circumstances established that the prosecution had proved its case but due to non-proving of motive part of the occurrence, the sentence was reduced to imprisonment for life---Appeal against conviction was dismissed with modification in sentence.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

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

----Ss.302, 324, 337-F(iii) & 449---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Sentence, reduction in---Testimony of a solitary eye-witness---Not legal impediment to base conviction on the deposition of a single witness who was found to be truthful and his/her acclaimed presence at the spot was proved beyond doubt---For raising superstructure of conviction, instead of quantity of evidence produced was to be looked upon the quality and intrinsic worth of evidence.

Shamshad Ali v. The State 2011 SCMR 1394; Muhammad Mansha v. The State 2001 SCMR 199; Muhammad Akram v. The State 2006 SCMR 1567 and Shakil and 5 others v. The State PLD 2010 SC 47 rel.

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

----Ss. 302, 324, 337-F(iii) & 449---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Sentence, reduction in---Recovery of weapon of offence and crime empties---Reliance---Scope---Accused was charged for intruding into the house of complainant while armed with a pistol and committed murder of 13 years aged nephew of complainant, during the incident complainant and his bhabi (sister-in-law) also received injuries from the pistol shots fired by accused---Record showed that pistol was recovered from the accused and its subsequent matching by Forensic Science Agency through its report with three crime empty shells of .30 bore secured from the crime scene corroborated the version of injured eyewitness---Recovery of pistol was affected in proceedings conducted under the supervision of Police Official---Ten days prior to the recovery of pistol, the crime empties secured from the spot had reached Forensic Science Agency thus there was not even a remote possibility of some tampering---Positive report of Forensic Science Agency was sufficient to provide strong corroboration to the case of prosecution and was helpful to place explicit reliance upon the evidence of injured eyewitness---Circumstances established that the prosecution had proved its case but due to non-proving of motive part of the occurrence, the sentence was reduced to imprisonment for life---Appeal against conviction was dismissed with modification in sentence.

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

----Ss.302, 324, 337-F(iii) & 449---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Scope---Accused was charged for intruding into the house of complainant while armed with a pistol and committed murder of 13 years aged nephew of complainant, during the incident complainant and his bhabi (sister-in-law) also received injuries from the pistol shots fired by accused---Canvassed motive was a dispute between accused on one hand and complainant along with his brother on other hand---Father of deceased and husband of injured eyewitness, in the days of occurrence, was abroad due to exigencies of his employment---Injured eyewitness admitted during cross-examination that accused was having no grudge against her or against her husband and even against her 13 years aged slain son---Thus inexorably, it could be held that prosecution failed to put forth any specific reason which prompted the accused to take the life of deceased---As a necessary consequence, it could be concluded that prosecution failed to prove the immediate cause behind the incident---Secondly it was noticed that the accused inflicted only a single injury to the deceased---So far as, injured eyewitness was concerned, Medical Officer observed two injuries over person of injured eyewitness out of which one was a lacerated wound at her back and the other one was an entry wound over back of her right arm---Lacerated wound on the back of injured witness made no ingress in her body thus there was every possibility that the same bullet was the source of trauma over her right arm---Case in hand was not of some extreme brutality---Moreover, if the projected motive was not proved beyond scintilla of any doubt, the alternate sentence of imprisonment of life provided under S.302(b), P.P.C. was to be awarded---Appeal was dismissed with modification in sentence.

Hasil Khan v. The State 2012 SCMR 1936; Zeeshan Afzal alias Shani v. The State and another 2013 SCMR 1602 and Muhammad Aslam v. The State 2017 MLD 14 rel.

Ghulam Farooq Awan for Appellant.

Basharat Ullah Khan for the Complainant.

Sajjad Hussain, DPG for the State.

2022 M L D 1873

[Lahore (Multan Bench)]

Before Muhammad Shan Gul, J

RASHID IQBAL---Petitioner

Versus

CHANCELLOR BAHAUDIN ZAKARIA UNIVERSITY, MULTAN and 4 others---Respondents

Writ Petition No.18802 of 2019, heard on 7th October, 2021.

(a) Baha-ud-Din Zakariya University Act (III of 1975)---

----S.11-A---Constitution of Pakistan, Arts. 4, 10-A & 14---Revisional powers of the Chancellor---Right of individuals to be dealt in accordance with law---Right to fair trial---Inviolability of dignity of man---Opportunity of hearing---Scope---Petitioners by way of an advertisement were appointed in the Baha-ud-Din Zakariya University---Un-successful candidates challenged the process of recruitment by means of filing a revision petition in terms of S.11-A of Baha-ud-Din Zakariya University Act, 1975, praying for the appointments to be reviewed and recalled---Validity---Chancellor of the University set aside the order of appointment approved by the Syndicate but did so without affording any opportunity of hearing to the petitioners---Petitioners were dealt a marked hand inasmuch as they were condemned unheard---Petitioners were not even called---Postulates of Art.10-A of the Constitution were compromised, the ethos of due process contained in Art. 4 of the Constitution was offended and fairness, both substantive and procedural, was given a short shrift---Order of the Chancellor besides being violative of the proviso to S.11-A of the Baha-ud-Din Zakariya University Act, 1975, was also in derogation of Arts. 4 & 10-A of the Constitution---Petitioners having been treated and dealt with like objects and not humans, the impugned orders were also violative of the right to dignity contained in Art. 14 of the Constitution---Order passed by Chancellor was set aside---Constitutional petitions were allowed.

Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483 distinguished.

(b) Baha-ud-Din Zakariya University Act (III of 1975)---

----S.11-A---Revisional powers of the Chancellor---Scope---Proviso to S.11-A of the Baha-ud-Din Zakariya University Act, 1975, was added subsequently after the promulgation of the Act in its original form and is, therefore, manifestly reflective of the legislative intent in supporting, ensuring and making the exercise of power under S.11-A subject to the right of fair hearing---Provision of personal hearing to affectees of exercise of powers in revision under S.11-A is mandatory---Power of revision under S.11-A is a quasi-judicial power which means that the audi alteram partem rule applies with that much more vehemence and with the statute itself providing for a right of hearing; a posthumous (post-event) hearing can also not cure the initial defect either and the decision so taken has to be quashed.

Dr. Zahid Javed v. Dr. Tahir Riaz Chauhdary and others PLD 2016 SC 637; Ridge v. Baldwin (1964 AC 40, House of Lords); University of Dacca [("1. Saiyyid Abul A'la Maudoodi, 2. Mishahul Islam Faruqi and 3. Umar Farooq v. 1. The Government of West Pakistan and 2. The Government of Pakistan PLD 1964 SC 673"; Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61 and Sind Employees' Social Security Institution and another v. Dawood Cotton Mills Ltd. PLD 1977 SC 177 ref.

(c) Constitution of Pakistan---

----Art.10-A---Right to fair trial---Scope---Person is directly affected by something, connotes, that he is affected without being protected by any intervening cushion that softens the effect of the adverse impact---Fundamental aspect of procedural fairness is the duty to give relevant and germane persons an opportunity to be heard.

R v. Rent Officer ex P Muldoon (1996) 1 WLR 1103 rel.

(d) Constitution of Pakistan---

----Art.10-A---Right to fair trial---Scope---Fairness requires that a person who may be adversely affected by a decision will of course be allowed to make submissions in his defence.

R v. Sec of State ex P Doody (1994) I AC 531 rel.

Muhammad Ghias ul Haq Sheikh for Petitioner.

Ch. Umar Hayat for Petitioner (in W.P. No.18668 of 2019).

Shakeel Javaid Choudhry for Petitioner (in W.P. No.18683 of 2019).

Azhar Saleem Kamlana, Additional Advocate General for Respondents.

Muhammad Ali Siddiqui, Legal Advisor, Bahauddin Zakariya University for Respondents.

2022 M L D 1900

[Lahore]

Before Tariq Saleem Sheikh, J

FALAK SHER---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No.3854 of 2022, decided on 1st June, 2022.

(a) Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S.116-A & Twelfth Schedule [as substituted by Provincial Motor Vehicles (Amendment) Act (XV of 2009)]--- Constitution of Pakistan, Art. 199--- Constitutional petition--- E-Ticketing--- Procedure---Punjab Safe Cities Authority (PSCA), jurisdiction of---Violation not committed by owner of vehicle---Subsequent purchaser of vehicle, non-shifting of liability---Petitioner was aggrieved of issuance of traffic violation tickets by PSCA---Validity---Provision of S.116-A of Provincial Motor Vehicles Ordinance, 1965, provided for ticketing system only and did not cater for e-ticketing---Police officer and a person authorized by Provincial Government was empowered under S.116-A of Provincial Motor Vehicles Ordinance, 1965, to draw a charge against person if he had committed offence mentioned in Twelfth Schedule to Provincial Motor Vehicles Ordinance, 1965---Authorized officer was to prepare Form-J at the spot and deliver three copies thereof to accused at the spot against due acknowledgement, send fourth copy to Bank and retain fifth for office record---Authorized officer could seek assistance of PSCA for enforcement of S.116-A of Provincial Motor Vehicles Ordinance, 1965 but the latter could not issue any e-ticket on behalf of police officer under current legal dispensation unless there were arrangements to deliver it to the offender at the spot---No such mechanism was available in e-ticketing---Traffic offence entailed personal liability and only the person who committed was to be penalized---Buck could not be passed to owner of vehicle unless he was the offender himself---Subsequent purchaser of vehicle could not be held liable in any eventuality---Current e-ticketing regime infringed principles relating to criminal liability---E-tickets in question were also bad in law because they were not in Form-J prescribed by S.116-A of Provincial Motors Vehicle Ordinance, 1965---Mandatory to draw a charge and it was to contain a notice that vehicle could be impounded if fine was not paid---High Court quashed e-tickets in question as those were illegal---Constitutional petition was allowed, in circumstances.

Mall Road Traders Association v. Deputy Commissioner, Lahore and others (Writ Petition No. 225987/2018); Wolf Middendorff, "A Criminology of Traffic Offences", (1963) 27 Fed. Probation 36; Alexandru Stoian, Teodora Draghici, The Principle of Legality, Principle of Public Law, 2015. DOI: 10.1515/kbo-2015-0087 and Beth Van Schaack, Legality and International Criminal Law. Available at: https://www.jstor.org/stable/10.5305/ procannmeetasil.103.1:0101a rel.

(b) Maxim---

----Nullum crimen sine lege (No crime without law) and nulla poena sine lege (no punishment without law)---Scope---Nullum crimen sine lege (No crime without law) is one of the fundamental principles of criminal law---Such comprises following rules: (i) rule against retrospective criminalization; (ii) rule that criminal statutes be construed narrowly; (iii) rule against judicial creation of common law offences; and (iv) rule that vague criminal statutes are void---Such canon is sometimes also called principle of legality and is interchangeable with nulla poena sine lege which translates to "no punishment without law"---Same guarantees fundamental freedoms and rights and promotes rule of law.

Beccaria, Cesare, 1764/1963. Of Crimes and Punishments. (H. Paolucci trans.1963) and Weston, Peter K., Two Rules of Legality in Criminal Law and Philosophy Vol.26, No.3, pp. 229-305, May 2007, U of Michigan Public Law Working Paper No.78. Available at SSRN: https://ssrn.com/abstract=977768 rel.

(c) Constitution of Pakistan---

----Arts. 4, 9, 10A, 12, 13 & 14---Maxim Nullum crimen sine lege

(No crime without law)--- Principle of legality---Scope---Nullum crimen sine lege has constitutional significance and is a feature of all human rights instruments--- Principle of legality is enshrined in Arts.4, 9, 10-A, 12, 13 & 14 of the Constitution.

Alexandru Stoian, Teodora Draghici, The Principle of Legality, Principle of Public Law, 2015. DOI: 10.1515/kbo-2015-0087 rel.

(d) Jurisprudence---

----Crime and punishment---Scope---Interest of society is that every crime should be punished--- Punishment may be in the form of imprisonment or fine or both---In some cases law may also provide for forfeiture of property---Generally, offender is responsible for the offence himself but in certain situations law may hold another person vicariously liable for it.

Mian Awais Suleman for Petitioner.

Malik Akhtar Javaid, Additional Advocate General, with Kashif Mushtaq Warraich, Chief Law and Procurement Officer Punjab Safe Cities Authority; Muhammad Tahir-ul-Mubeen, Legal Advisor and Tanvir-ul-Hassan, Incharge Legal Branch, City Traffic Police, Lahore for Respondents.

2022 M L D 1922

[Lahore]

Before Shahid Jamil Khan, J

FATIMA NADEEM---Petitioner

Versus

PROVINCE OF THE PUNJAB and others---Respondents

W.Ps. Nos.6700, 5075 and 6719 of 2022, heard on 4th February, 2022.

(a) Constitution of Pakistan---

----Arts.25 & 37(c)---Educational Institution---Admission in medical college---Improved marks---Discrimination---Principles of policy---Access to technical and professional education---Petitioners were aggrieved of not including their improved marks, obtained in Special Examination, while preparing final merit for admission in MBBS/BDS by authorities---Contention of petitioners was that improved marks of candidates in the category of 'delayed result candidates' was accepted by authorities but that of petitioners obtained under 'Special Examination' were not included in their lists---Validity---After declaration of original result for HSSC and A-level examination, all students had a right to attempt for improvement of marks in respective Special Examinations---Petitioners and other candidates appeared accordingly in examinations and their results were declared on same dates---Separate Class was created within similarly placed person, by introducing technical condition in computer system---Technicality introduced in computer system was though a policy matter but it offended fundamental right of 27 candidates under Art. 37(c) read with Art.25 of the Constitution by creating a class within a class---Petitioners already applied for substitution of their improved marks before cut-off date which request was declined through written orders or by not entertaining their applications---By rejecting request for substitution of marks, authorities were ousting petitioners for a technicality, from being considered on merit, which was violation of fundamental right under Art.25 read with Art.37(c) of the Constitution---High Court directed the Vice Chancellor of University Health Sciences to ensure that improved marks of petitioners and others were included in their respective applications for admission by substituting original marks till cut-off date, while preparing merit list for admissions for MBBS/BDS in question---Constitutional petition was allowed, in circumstances.

Pakistan Medical and Dental Council, Islamabad through Authorized Representative v. Shahida Islam Medical Complex (Pvt.) Limited through Authorized Director and another 2019 CLC 1761 distinguished.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Protection of fundamental right---Citizen not present before Court---Effect---High Court in exercising Constitutional jurisdiction under Art.199, is to protect the Constitution and fundamental rights guaranteed therein, even of those citizens who are not before the Court.

Barrister Haroon Dugal, Mian Tariq Hussain, Kashif Akbar Bandesha, Chaudhary Farrukh Ali, Ali Raza Kamboh, Subhe Nasib, Hamza Warraich, Saad Asim, Qasim Raza Chadhar, Khurram Riaz Kahlon, Sohail Anjum Virk, Javed Abbas Sial, Ghulam Abbas and Rizwan Afzal Tarar for Petitioners.

Mohammad Osman Khan, Assistant Advocate General, Punjab for Respondent No.1.

Barrister Chaudhary Muhammad Umar, Mufti Ahtesham-ud-Din Haider and Rana Muhammad Ansar for Respondent (PMC).

Imran Muhammad Sarwar assisted by Dr. Allah Rakha, Team Lead Admissions and Malik Hamza Izhar, Manager (Litigation), UHS, Lahore for Respondent (UHS).

2022 M L D 1938

[Lahore (Multan Bench)]

Before Shahid Karim, J

QURESHI TEXTILE MILLS LIMITED through Assistant Manager---Petitioner

Versus

DISTRICT COUNCIL, CHAK SHAHANA ROAD, KHANEWAL through Chairman and another---Respondents

Writ Petition No.7254 of 2019, decided on 31st May, 2022.

(a) Punjab Local Government Act (XVIII of 2013) [since repealed]---

----S.115 & Entry No. 2, Part II, Third Schedule---Taxes to be levied---Fees for license, sanctions and permits granted by the District Council---Scope---Petitioners challenged the notification issued by District Council levying taxes and fees of various nature---Validity---District Council was empowered to levy taxes and fees---License fee in the impugned notification had been levied on the petitioners which were textile mills---However, the Entry on which reliance had been placed for levy of license fee specifically stated that the fee shall be in respect of a license granted by the District Council---No material was on record which would show that the District Council had indeed granted any license to the petitioners for carrying out any profession and for which the fee was sought to be levied by the impugned notification---Not sufficient to state merely that since there was a power in the District Council to levy any fee or tax irrespective of whether that came within the ambit of the relevant Entry or not---Prior to that the onus was on the District Council to establish that the person in respect of whom a levy had been imposed was carrying on a profession which required a license to be taken out---Unless this was established no fee could be imposed on that person on the pretext of license fee---Constitutional petitions were allowed and the notification to the extent of petitioners was held to be void and was struck down.

(b) Punjab Local Government Act (XVIII of 2013) [since repealed]---

----S.115 & Entry No. 2, Part II, Third Schedule---Taxes to be levied---Fees for license, sanctions and permits granted by the District Council---Scope---Held, in order for a person to be liable for payment of license fee, it must be established as a pre-condition that the person carried on a business or a profession which in fact required a license in the first place---Without such a pre-condition having been fulfilled the mere levy of license fee was ultra vires and without lawful authority.

Malik Muhammad Tariq Rajwana for Petitioners.

Pir Ahmad Shah Khagga for Respondents.

2022 M L D 1945

[Lahore]

Before Shahid Bilal Hassan, J

Mst. AZIZAN BIBI---Petitioner

Versus

NASIR MEHMOOD---Respondent

Civil Revision No.547 of 2012, decided on 22nd December, 2021.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts. 76, 79 & 113---Suit for possession, specific performance and permanent injunction filed by respondent alleging that the petitioner agreed to sell the subject property on consideration out of which certain amount was paid as earnest money---Respondent's suit was concurrently decreed---Validity---Execution of alleged agreement to sell was admitted---Petitioner admittedly did not provide the Fard Milkiyat 10 days prior to the target date as per specifically written terms of the agreement to sell---Said agreement was reciprocal and not the unilateral---Petitioner further tried to sale the subject property---Respondent had obtained the injunctive order from the Court of competent jurisdiction---Petitioner had not exhibited any document but marked which had no sanctity in the eye of law---Receiving of earnest money was not denied by the petitioner---Respondent was entitled to the decree for specific performance---Revision petition was dismissed accordingly.

Mst. Rehmat and others v. Mst. Zubaida Begum and others 2021 SCMR 1534; Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal 2011 SCMR 1013; Anwar Ahmad v. Mst. NafizBano through Legal Heirs 2005 SCMR 152 rel.

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

----Art.76---"Marked" document---Not duly submitted---Scope---Relying upon marked documents would be illegal.

Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182 rel.

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

----S.115---Revision---Concurrent findings---Revisional jurisdiction---Scope---Concurrent findings recorded on facts, when do not suffer from any misreading and non-reading of evidence, howsoever erroneous, cannot be interfered with in exercise of revisional jurisdiction.

Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469; Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161 and Muhammad Farid Khan v. Muhammad Ibrahim and others 2017 SCMR 679 rel.

Sheikh Usman Karim ud Din for Petitioner.

Rana Saeed Akhtar for Respondent.

2022 M L D 1955

[Lahore (Bahawalpur Bench)]

Before Raheel Kamran, J

BASHIR AHMAD---Petitioner

Versus

SHAHID NADEEM---Respondent

Civil Revision No.636 of 2021, heard on 1st February, 2022.

(a) Negotiable Instruments Act (XXVI of 1881)---

----S.118---Qanun-e-Shahadat (10 of 1984), Arts.84, 117 & 118---Cheque---Signatures, non-denial of---Recovery of amount---Suit was filed by the respondent---Petitioner's/defendant's leave to appear/defend was accepted---Petitioner filed the application for comparison of hand-writing on the disputed cheque which was dismissed by the Trial Court---Petitioner contended that he never issued any cheque to the respondent; that he issued a blank cheque to the owner of petrol pump as guarantee in lieu of purchase of diesel for agriculture purpose; that the petitioner returned the entire amount to the owner of petrol pump but he did not return the disputed cheque to the petitioner with mala fide and ulterior motive; that writing on the disputed cheque was fake and fictitious---Petitioner had purchased fertilizers from the respondent and in lieu thereof issued the cheque in question in his favour; that the petitioner in his written statement had admitted the issuance of the said cheque in his favour; that the petitioner would frequently change his signatures; that the petitioner could not advance any cogent reason for comparison of writing on the cheque in question---Validity---Petitioner had not denied his signature on the cheque in question---Burden of proof was on him to rebut the presumption and prove that the same was without consideration or by relying upon facts and circumstances of the case and also by referring to flaws in the evidence of plaintiff---Court was empowered to compare the signature/writing/seal with others admitted/proved---However, whether or not to exercise such discretionary power would depend upon the facts/circumstances of each case---Report of a handwriting expert on its own could not be made basis to discard the direct evidence and when direct evidence was available, there was no need for expert opinion, which otherwise was nothing but confirmatory / explanatory to direct evidence---Revision petition was dismissed accordingly.

Rehmat Ali Ismailia v. Khalid Mehmood 2004 SCMR 85 rel.

(b) Constitution of Pakistan---

----Art.10A---Negotiable instrument/cheque---Direction for expeditious trial---Scope---High Court's direction qua conclusion of case proceedings within the time period---Scope---Direction of High Court as to conclude the proceedings within time, would not stand in the way of right to fair trial of a party to proceedings as guaranteed by Art.10A of the Constitution---Request for extension of time for compliance of the direction of High Court could be made provided the same was a reasonable one in the facts/circumstances of the case.

(c) Negotiable Instruments Act (XXVI of 1881)---

----S.118---Qanun-e-Shahadat (10 of 1984), Arts.117 & 118---Cheque---Presumption, nature of---Burden of proof---Scope---Until the contrary was proved, it had, inter alia, to be presumed that every negotiable instrument was made/drawn for consideration; that every negotiable instrument bearing a date was made/drawn on such date; and that the holder of a negotiable instrument was a holder in due course---Such was a rebuttable presumption yet the onus was on the person denying consideration to allege/prove the same---Defendant could discharge burden of proof placed upon him under S.118 of the Negotiable Instruments Act, 1881 by producing reliable evidence showing that consideration had not been passed or by relying upon facts/circumstances of the case and also by referring to flaws in the evidence of plaintiff and then contending that presumption had been rebutted.

Aziz-ur-Rehman v. Liaqat Ali 2007 SCMR 1820 and Muhammad Arshad v. City Bank N.A, Lahore 2006 SCMR 1347 rel.

Ch. Nisar Ahmad Gill for Petitioner.

Nadeem Iqbal Ch. for Respondent.

2022 M L D 1982

[Lahore (Rawalpindi Bench)]

Before Faisal Zaman Khan, J

SOHAIL LIAQAT---Petitioner

Versus

Mst. SALMA SHAHEEN and 3 others---Respondents

Writ Petition No.826 of 2015, decided on 2nd June 2022.

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

----S.5, Sched---Badl-e-Kulha----Special condition/Undertaking in column No.16 of nikahnama to transfer house to wife---Enforcement of such special condition---Scope---Nikahnama was produced by wife and from the perusal of column No .16 of the nikahnama, it was clear that it had been undertaken by husband as special condition that a house (details of which had been mentioned in the said column) should be given to wife---Husband's case was that he had delivered possession of one room to wife which was sufficient compliance of the said column of nikahnama---Validity---Stance taken by husband when read in juxtaposition with column No.16 of the nikahnama, it was clear and obvious that it was undertaken by husband that a house should be delivered to wife (and not a room) ,thus the special condition as contemplated in column No.16 in nikahnama had not been fulfilled ---Husband claimed that possession of house could not be ordered to be delivered to wife as the house mentioned in column No.16 was given to wife in lieu of dower and since wife had sought dissolution of marriage through suit on the basis of Khula, which was decreed, thus as Badl-e-Khula, since wife had to forego the dower therefore no decree for possession of the house could be passed in favour of wife---Validity--Said claim of husband was misconceived for the reason that nikhanama showed that column Nos. 13 to 15 pertained to Dower, whereas column No.16 referred to a Special Condition set up while executing the Nikahnama which was a contract between spouses----Column Nos. 13 to 15 and column No.16 were independent and not interdependent as they catered for two different undertakings between the spouses while executing the Nikahnama, the same could not be read in conjunction---In column Nos. 13 to 15 of nikanama reference was made to dower, what would be the dower, whether it was prompt or deferred and whether some of the dower had been paid at the time of marriage, and whereas, Column No.16 was an independent condition setup at the time of marriage as it referred to a special condition undertaken by the spouses while entering in the marital bound through nikanama---For the enforcement of the special condition as setup in column No.16, either of the spouses could approach the Family Court keeping in view the Schedule attached to the Family Courts Act, 1964, which in the present case wife had done----Stance of husband was also falsified from the fact that suit for dissolution on the basis of Khula was filed by wife against husband which was decreed by Trial Court and as Badl-e-Khula ,respondent had already been asked to surrender 2 tolas gold ornaments and since the decree had not been assailed by husband thus even if column No.16 was construed to be with regard to dower (which it was not), even then husband was bound to fulfill his undertaking as Badl-e-Khula had already been given to husband----In the previous round of litigation, in which parties entered into compromise, the entry made in column No.16 of the nikahnama had been acknowledged by the father of husband who also made a statement before the Trial Court that house mentioned in column No.16 belonged to him and he would transfer the same to respondent -----Constitutional petition was dismissed.

Syed Nadeem Raza through Attorney General v. Mst. Amna-Tuz-Zahra and 2 others 2011 CLC 726 distinguished.

Sardar Bilal Firdous for Petitioner.

Malik Amjad Ali for Respondents Nos.1 and 2.

2022 M L D 1995

[Lahore]

Before Safdar Saleem Shahid, J

MUHAMMAD KASHIF---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 3 others---Respondents

Writ Petition No.14198 of 2022, heard on 17th May, 2022.

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

----S.5, Sched---Quantum of maintenance for minor---Pervious maintenance of wife---Summoning of witness---Wife and minor (respondents) filed suit for recovery of maintenance allowance, dowry articles, car and gold ornaments against husband/father/petitioner before Family Court---Petitioner appeared and contested the suit by filing written statement ---Family Court decreed the suit---Both parties preferred appeals before Appellate Court which was dismissed----Held, that to the extent of maintenance allowance of the minor, petitioner/father was religiously, legally and morally bound to maintain his child, so far as, quantum of maintenance allowance for minor was concerned, wife (respondent) had claimed that petitioner was serving as Major in the Army and received Rs,150,000/- salary ,therefore could easily pay Rs. 35,000/- per month maintenance to the minor where as petitioner took the stance that he had to pay mess bill and other expenses worth Rs.50,000/- and also had other dependents----Minor was school going girl and her expenses would definitely increase in future---Keeping in views the facts and circumstances of the case, status of the parties and evidence produced during the trial, Family Court rightly fixed the quantum of maintenance allowance with 10% annual increase---Wife/respondent had claimed her pervious maintenance allowance since October 2016 but was unable to establish the fact when, where, in whose presence and for what reason, she was forcibly expelled by petitioner from his house---Wife had also not specifically alleged that she had been tortured by the petitioner---When the lady was not residing with the petitioner and not performing her matrimonial obligations, petitioner was not under obligation to maintain respondent (wife) for the said period---Wife had claimed that the car and 12 tolas gold ornaments given as dowry articles were not returned by the petitioner and were still in petitioner's possession where as petitioner had denied said fact---During pendency of suit, wife (respondent) filed an application for recording evidence of real mother of the petitioner which was allowed and mother of petitioner was summoned---Petitioner's mother deposed against the petitioner and there was no reason to disbelieve the real mother who had deposed against her own son/petitioner---Special power of attorney of petitioner did not opt to cross-examine the petitioner's mother meaning thereby her statement was admitted by the special attorney---Neither any independent evidence was brought on record to prove that petitioner's mother had deposed against petitioner due to some enmity nor any evidence was produced that her statement was not the correct picture---Even petitioner himself had not appeared in the witness box whereas petitioner's special attorney appeared who was neither having full information about the event of marriage and nor about proceedings of the Court----Petitioner's mother was put questions by the Court, she replied to them, which showed that she was making independent statement and her statement could not be said to be under the influence of any body or within the meaning of tutored statement ---Even otherwise, the response/behaviour of petitioner to the application for summoning the petitioner's mother revealed that statement of the petitioner's mother was a correct picture---Petition was dismissed, in circumstances.

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

----S.5, Sched----Power of Family Court to summon any witness---Family Court was empowered to adopt any way/procedure for the ends of justice which was not against the principles of natural justice to decide the matter and the ample provisions were with the Family Court to call any witness at any stage necessary for the decision of the case---Petition was dismissed, in circumstances.

Ghulam Muhammad v. Zohran Bibi and others 2021 SCMR 19 and Dr. Shahabdullah Khan and 2 others v. Mst. Sobia Mehrin and 2 others 2009 CLC 1188 ref.

(c) Constitution of Pakistan---

----Art.199---Concurrent findings of fact of two Courts below could not be disturbed in writ petition unless there was some jurisdictional error or defect pointed out by petitioner.

Muhammad Habib v. Mst. Saila Bibi and others 2008 SCMR 1584; Ashfaq Ahmad v. Judge, Family Court, Okara and another 2007 YLR 1550; Muhammad Anwar v. Shamim Akhtar and others 2007 CLC 195 and Rahman Gul v. Nizakat Bibi and another 2007 MLD 551 rel.

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

----Preamble---Qanun-e-Shahadat, (10 of 1984), Art.129----Although the provisions of the Qanun-e-Shahadat, 1984 were not as such applicable to the proceedings of family cases, yet the Family Courts Act, 1964 empowered the courts to make its own assessment---Art. 129 of Qanun-e-Shahadat, 1984, also given powers to the Court to form an opinion about the evidence produced.

Shafique Sultan v. Mst. Asma Firdous and others 2017 SCMR 393; Muhammad Farhan v. Mst. Samina Saddique and others 2019 MLD 1145 and Muhammad Ahmad v. Additional District Judge and others 2019 CLC 89 rel.

Ch. Shahid Tabbasam for Petitioner.

Asif Imran Awan for Respondents Nos.3 and 4.

2022 M L D 2006

[Lahore]

Before Farooq Haider, J

Munshi INTIZAR HUSSAIN alias GAPPU---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.35841-J of 2021, heard on 30th September, 2021.

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

----S.345---Penal Code (XLV of 1860), Ss. 302 & 311 ---Qatl-i-amd---Ta'zir after waiver or compounding of right of qisas in qalt-i-amd---Compounding offences---Scope---Accused sought permission to compound the offence as he and legal heirs of deceased had arrived at a compromise---Report of Sessions Judge and statements of legal heirs of deceased reflected that the compromise between the accused and legal heirs was genuine and they had arrived at a compromise with their free will and without any duress or coercion---When the proposed compromise between legal heirs of the deceased and accused was likely to promote the cause of peace in the locality/society as well as betterment of present and coming generations of the parties particularly when no element of Fasad-fil-Arz had been found from the facts and circumstances of the case, then it was appropriate to grant permission/leave for effecting the compromise within the meaning of S.345(2)(5), Cr.P.C.---Permission/leave for effecting compromise between accused and legal heirs of deceased was granted---Appeal was also accepted, conviction recorded by the Trial Court was set aside.

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

----S.345---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Compounding of offence---Scope---Surviving legal heirs of a deceased are quite competent to effect compromise within the meaning of S. 345, Cr.P.C., where conviction and sentence have been passed under Ta'zir.

Muhammad Yousaf v. The State and others PLD 2019 SC 461 ref.

Agha Intizar Ali Imran for Appellant.

Haroon Rasheed, Deputy District Public Prosecutor for the State.

Complainant in person.

2022 M L D 2018

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

Mst. SAIMA ASHIQ---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and 3 others---Respondents

Writ Petition No.3315 of 2021, decided on 8th February, 2022.

Elections Act (XXXIII of 2017)---

----S.9---Constitution of Pakistan, Art.199---Constitutional petition---Alternate and efficacious remedy, availability of---Petitioner was aggrieved of order passed by Election Commission of Pakistan declaring her to be disqualified from the seat of Member Cantonment Board---Validity---Election Commission passed order against which a specific remedy of appeal was provided under S.9(5) of Elections Act, 2017---In the wake of availability of alternate efficacious remedy, jurisdiction of High Court under Art.199 of the Constitution could not be invoked---High Court could exercise its powers under Art. 199 of the Constitution only if it was satisfied that no other adequate remedy was provided by law---Adequacy of alternate remedy always attracted attention of High Court---Constitutional petition was dismissed, in circumstances.

Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681; Jamshed Iqbal Cheema v. The Election Appellate Tribunal and others 2022 CLC 463; Bartha Ram v. Lala Mehar Lal Bheel 1995 SCMR 684; Syed Fakhar Imam v. Chief Election Commissioner of Pakistan PLD 2008 SC 730; Ch. Muhammad Ashraf Warraich v. Muhammad Nasir Cheema 2016 SCMR 998 and Muhammad Salman v. Naveed Anjum and others 2021 SCMR 1675 ref.

Sh. Ahsan-ud-Din, Advocate Supreme Court with Sh. Zulfiqar Ali for Petitioners.

Tahir Malik, Malik Ihtisham Saleem, Assistant Attorneys Generals for Pakistan, Sana Ullah Zahid, Advocate Supreme Court, Syed Sanwal Kazmi with Zulqarnain Haider, Law Officer, ECP and Mojeeb ur Rehman Kiyani, Additional Advocate General for Respondents.

2022 M L D 2051

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

ABDUL REHMAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE-I, RAJANPUR and 2 others---Respondents

Writ Petition No.382 of 2016, decided on 11th May, 2022.

(a) Co-sharer---

----Joint property---Right---Co-owners of a particular property are owners of each and every inch of joint property as long as the same is partitioned either privately or through recognized legal modes, as the case may be.

(b) Partition---

----Joint property---Private partition---Family settlement and partition can be reached at privately by parties---Courts of law have recognized such private partition as the same requires some degree of recognition under law or through conduct of parties.

Allah Dad and 3 others v. Dhuman Khan and 10 others 2005 SCMR 564 rel.

(c) Punjab Rented Premises Act (VII of 2009)---

----Ss.2(m) & 19---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Co-sharer of premises---Tenancy agreement---Proof---Parties were brother and sister inter se and shop in question was their inherited property---Respondent claimed to be owner of shop in question on the basis of private family settlement and a tenancy agreement executed between the parties---Respondent sought eviction of petitioner from the shop in question under Punjab Rented Premises Act, 2009---Rent Tribunal passed eviction order of petitioner, which order was maintained by Lower Appellate Court---Validity---Unproven and unsubstantiated tenancy agreement cum family settlement could not be made basis of eviction proceedings against petitioner, who was admittedly a co-owner---Eviction petition by respondent as co-owner of inherited property on the basis of private family settlement without proving the same against another co-owner i.e. the petitioner was not even maintainable before Rent Tribunal under the provisions of Punjab Rented Premises Act, 2009---Private family settlement was neither a fact-in-issue in the lis nor it could be in the eviction petition, as the same was beyond jurisdictional scope of eviction proceedings under Punjab Rented Premises Act, 2009 to indirectly or obliquely sanction or otherwise discard a private family settlement---High Court set aside concurrent findings of facts recorded by Rent Tribunal, as well as Lower Appellate Court---Constitutional petition was allowed, in circumstances.

Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 and Mrs. Azra Riaz v. Additional District Judge and others 2021 CLC 623 ref.

Mirza Adam Khan v. Muhammad Sultan PLD 1975 SC 9 and Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 rel.

Malik Muhammad Shahzad Fareed Langrial for Petitioners.

Abdul Salam Alvi for Respondent No.3.

2022 M L D 2066

[Lahore (Rawalpindi)]

Before Jawad Hassan, J

HAFEEZ-UR-REHMAN CHOUDHARY---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.321 of 2022, decided on 4th February, 2022.

Constitution of Pakistan---

----Arts.48(6) & 199---Constitutional jurisdiction of High Court---Mandamus, writ of---Maintainability---Prayer against basic structure of the Constitution---Petitioner sought direction to the Federal Government as well as other respondents for holding a referendum for Presidential system in Pakistan---Validity---Such prayer went against the basic structure of the Constitution regarding democracy---No proper parties, under the Federal and the Provincial Government, had been made against whom direction could be issued by the High Court; nor any prayer to that effect under the Ministry, Division or Department had been made; and also no (relevant) law had been mentioned---Writ of mandamus could only be issued under Art. 199 of the Constitution to a person to do, what was required by law to be done---Constitutional petition was dismissed being not maintainable.

Asif Saleem v. Chairman BOG University of Lahore and others PLD 2019 Lah. 407; Jamshed Iqbal Cheema v. The Election Appellate Tribunal and others 2022 CLC 463; District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401; Kesavananda v. State of Kerala AIR 1973 SC 1461 and Muhammad Yousaf versus Secretary Finance and others PLD 2021 Lah. 156 = 2021 PLC (C.S.) 195 rel.

Barrister Muhammad Ahmad Pansota, Advocate Supreme Court for Petitioner.

Mujeeb-ur-Rehman Kiyani, Additional Advocate General Punjab (on Court call).

2022 M L D 2077

[Lahore]

Before Safdar Saleem Shahid, J

Mst. RAZIA SULTANA---Petitioner

Versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No.19392 of 2016, decided on 27th January, 2022.

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

----S.5, Sched.---Execution of decree for return of dowry articles ---Alternate price of dowry articles awarded---Petitioner (wife) filed execution petition before Trial Court against respondent (husband); during the execution proceedings petitioner took stance that she was not ready to receive dowry articles, rather she was willing to receive the alternate price of said articles but Trial/Executing Court directed the petitioner to receive the dowry articles as per list annexed---Validity---Record revealed that during proceedings of the execution petition the decree holder refused to receive the gold ornaments on the ground that same was not pure---Judgement debtor gave an undertaking before the Executing Court to pay alternate price of gold ornaments to the extent of seven tolas and later on respondent paid the price of the said gold ornaments to the decree holder which was clear indication of the fact that judgement debtor had accepted the claim of decree holder to that extent---During the proceedings of the execution petition ,petitioner took a specific stance that her dowry articles were replaced with the original one and she claimed the price of said articles as alternative--- Petitioner left the house of respondent in the year 2001 and never joined the respondent again and since then petitioner had not used the said dowry articles, rather, respondent had been using the dowry articles---Trial Court did not consider the worst condition of dowry articles, rather, directed the petitioner to receive all the dowry articles as per list annexed with the case in hand---In these circumstances, High Court had reason to believe that observation of Trial Court in the impugned order that alternate price could not be paid to the petitioner, rather, she was entitled to receive all the dowry articles as per list annexed with the case in hand, was not in accordance with the law, especially when the petitioner took a specific stance before the Executing Court that her dowry articles were replaced by the respondent with the original one and that respondent had also paid the price of the gold ornaments to the petitioner---Order passed by Trial Court was set aside to the extent of observation of Executing Court, where by, petitioner was directed to receive the dowry articles as per list annexed with the file and declined the claim of the petitioner to hand over its alternate price---Constitutional petition was accepted.

Muhammad Akram v. Mst. Shahida Parveen and others PLD 2004 Lah. 249; Mst. Humaira Majeed v. Habib Ahmad and 2 others PLD 2012 Lah. 165 rel.

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

----Ss.5, 17 & Schd.---Civil Procedure Code (V of 1908), O.XX, R.10---Monetary value of dowry Article not mentioned in decree---Effect---Provisions of O.XX, R.10 of the C.P.C were not strict sensu applicable to a decree obtained in a family suit in view of S. 17 of the Family Courts Act, 1964---No provision existed in the Family Courts Act, 1964, similar or corresponding to O.XX, R.10 of the C.P.C---Decree passed under the Family Courts Act, 1964 for recovery of dowry articles including gold ornaments or other moveable property would be lawful and executable even if did not state the monetary value payable in the case moveable property was not delivered---- Constitutional petition was accepted.

Muhammad Akram through Special Attorney v. Mst. Bushra Begum and 2 others 2005 CLC 890 rel.

Muhammad Shahzad Ch. for Petitioner.

2022 M L D 21

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

MOHAMMAD YAHYA and others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Forest and others---Respondents

Writ Petition No.233-M of 2020, decided on 2nd February, 2021.

Khyber Pakhtunkhwa Disposal of Exploitable Trees of Woodlots Rules, 2017---

----R.3---Protected forest---Factual controversy---Petitioners claimed to be owners of land in question and were aggrieved of restriction imposed by authorities from cutting trees---Validity---Land in question was shown as part and parcel of protected forest compartment and the same had been wrongly entered as private property in revenue record---Application of petitioners was rightly dismissed by authorities---Question involved was factual in nature and could not be determined without recording of evidence---Constitutional petition was dismissed, in circumstances.

Gujar Khan and 3 others v. Government of Khyber Pakhtunkhwa and 3 others 1996 CLC 1447; Ahmad Developers v. Muhammad Saleh 2010 SCMR 1057; Suo Motu Case No. 13 of 2007 PLD 2009 SC 217 and Sardar Naseer Ahmad Mooiani v. Chief Executive/Chief Secretary Government of Balochistan Quettta 2007 SCMR 105 rel.

Shah Salam Khan for Petitioner.

Raza-ud-Din Khan, A.A.G. for Respondents.

2022 M L D 46

[Peshawar]

Before Syed Muhammad Attique Shah, J

SHAH HUSSAIN---Petitioner

Versus

DIN MUHAMMAD and another---Respondents

Civil Revision 335-P of 2015 with Civil Miscellaneous No.765-P of 2020, decided on 29th March, 2021.

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

----Arts.79, 117 & 118---Registered deed---Burden of proof---Respondent's suit for declaration and cancellation of the registered deed was decreed by trial Court---Petitioner's suit for declaration in respect of the same property on basis of compromise deed was concurrently dismissed---Validity---No written proof of payment---Factum of payment was contradictory in view of statements of witnesses---Petitioner could not establish the sale transaction and also failed to prove the payment of sale consideration---Petitioner could not bring on record the original registered deed at the time of recording of his evidence---Burden of proof always lay upon the beneficiary of a transaction/document to establish the same through trustworthy evidence---Revision petition was dismissed accordingly.

Abdur Rahim v. Sirajud Din and 4 others 1992 SCMR 1741 ref.

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

----Art.79---Registered deed---Proof---Mere Registration of a deed was not sufficient to prove its execution, authenticity and genuineness---Same needed to be proved through strong and convincing evidence.

Syed Mansoor Ahmad v. Mst. Maqbool Begum and others PLD 1954 Dacca 134 and Kartar Singh v. Didar Singh and others AIR 1934 Lah. 282 ref.

Abdul Sattar Khan for Petitioner.

Zia-ur-Rehman Khan for Respondents.

2022 M L D 63

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

AHSAN AHMED---Appellant

Versus

The STATE through Additional Advocate General, Swat and another---Respondents

Criminal Appeals Nos.3-C and Criminal Revision No.1-C of 2019, decided on 3rd June, 2021.

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

----Ss.302(b), 324, 337-A(i) & 337-A(ii)---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, shajjah-i-mudihah---Appreciation of evidence---Ocular account---Scope---Accused was charged for committing murder of the son of complainant and also causing injuries to the complainant---Motive for commission of the offence was previous ill-will---Ocular account of the incident had been furnished by six witnesses---Complainant in his examination-in-chief stated the entire story of the occurrence as mentioned in the FIR---Said witness was allowed to be cross-examined by the defence side but the fact remained that the veracity of that witness regarding the occurrence and the role played by the accused could not be shattered, even to a slightest extent---Brother of deceased and another cousin of the deceased were examined---Neighbour of both the parties was also examined, who was independent witness and having no axe to grinde in the matter---Said witness supported case of the prosecution and he was cross-examined but nothing beneficial to the case of prosecution could be extracted from his mouth---Same was the case with statement of other witness---Said witnesses had also been fully independent witnesses and no reason existed for discarding their testimony---Besides, other prosecution witnesses had also supported the case of the prosecution and had remained fully consistent with each other as well as with the documentary evidence available with the prosecution on material aspects of the case---Cross-examinations of said witnesses could not produce any beneficial factor for the defence---Circumstances established that the prosecution had proved its case against the accused beyond a shadow of doubt---Appeal against conviction was dismissed accordingly.

Muhammad Iqbal and others v. Muhammad Akram and another 1996 SCMR 908 rel.

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

----Ss. 302(b), 324, 337-A(i) & 337-A(ii)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, shajjah-i-mudihah---Appreciation of evidence---Confessional statement of accused---Scope---Accused was charged for committing murder of the son of complainant and also causing injuries to the complainant---Prosecution had also been banking on confessional statement of the accused but same could not safely be relied upon---Confessional statement of accused had been recorded after five days of his arrest---Such was not only a delayed judicial confession but the accused had been brought before the Judicial Magistrate on the following day of his arrest, who had granted two days custody of the accused---Accused was again produced before the Judicial Magistrate and the local police obtained further two days custody of the accused---Accused had not confessed his guilt before the Court on both the occasions---When the accused was produced before the Judicial Magistrate, his confessional statement was recorded---Such prolonged custody and repeated productions of the accused before the Judicial Magistrate and taking him back to the Police Station would have naturally produced a state of mind, where the accused might have been under the impression that if he had not made confession, he might again be handed back to the police---Confessional statement in such circumstances could not be stated to be voluntary and it was not a piece of evidence which could safely be relied upon---Circumstances established that the prosecution had proved its case against the accused beyond a shadow of doubt---Appeal was dismissed accordingly.

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

----Ss.302(b), 324, 337-A(i) & 337-A(ii)---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, shajjah-i-mudihah---Appreciation of evidence---Recovery of weapon of offence from the possession of accused---Scope---Accused was charged for committing murder of the son of complainant and also causing injuries to the complainant---Recovery of weapon of offence (knife), was recovered from the accused at the time of his arrest from his personal search---Recovery had also been proved by the prosecution through the statement of recovery witness as well as statement of Investigating Officer---Said knife had also been sent to the Forensic Science Laboratory for the purpose of chemical analysis, wherefrom report had been received showing that the knife, shirt and blood stained shalwar had contained human blood, however, said report had not found sufficient for blood grouping---Circumstances established that the prosecution had proved its case against the accused beyond a shadow of doubt---Appeal against conviction was dismissed accordingly.

Rahimullah Chitrali for Appellant.

Haq Nawaz, Asstt: A.G. for the State.

Muhammad Nabi for the Complainant.

2022 M L D 85

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

NISAR AHMAD and 4 others---Petitioners

Versus

MUHAMMAD ANWAR and 5 others---Respondents

Civil Revision No.558-A of 2019, decided on 11th March, 2021.

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

----Ss.42 & 54---Suit for declaration and injunction---Gift---Marzul Mout---Proof---Respondents/plaintiffs assailed registered gift deed and mutation on the plea that their predecessor-in-interest was suffering from Marzul Mout (Death bed)---Validity---No medical evidence worth the name could be led showing that predecessor-in-interest of respondents/plaintiffs was apprehending imminent death or was suffering from any illness at the relevant time---Doctrine of Marzul Mout could not be invoked by respondents/plaintiffs---After execution of mutations in question, predecessor-in-interest of respondents / plaintiffs remained alive for long time, neither he nor respondents / plaintiffs challenged gift mutations or gift deed during his life time---After the death of predecessor-in-interest, respondents/plaintiffs challenged its validity at a belated stage---Silence of respondents / plaintiffs for a long time, after execution of gift mutation/deed itself reflected that they had knowledge of gift transaction and free will of their predecessor-in-interest---Trial Court rightly held that respondents / plaintiffs were estopped by their own conduct to sue petitioners / defendants, after demise of their father---High Court set aside judgment and decree passed in favour of respondents/plaintiffs by Lower Appellate Court and that of Trial Court was restored---Revision was allowed accordingly.

Shamshad Ali Shah and others v. Hassan Shah PLD 1964 SC 143; Rashid-un-Din v. Nazir-ud-Din AIR 1929 Lah. 721; Noor Muhammad Khan v. Habib Ullah Khan PLD 1994 SC 650; Kamran v. Allah Bakhsh NLR 1991 SD 366; Mst. Chan Bibi and 04 others v. Shafi and others PLD 1977 SC 28; Hamid Ullah v. Khurshid Ahmad Khan PLD 1958 SC (PAK) 516; Fazal Muhammad Bhatti v. Sardar Akhtar v. Feroz PLD 1951 Lah. 433 and Syed Raza Ali v. Kazi Noor-ud-Din AIR 1925 Cal. 537 rel.

(b) Islamic Law---

----Gift---Preferential gift---Scope---Preferential gift under Islamic Law is not void and it is within the competency of father to give preference to one heir or some heirs over the others.

Ahmad Khan v. Mst Zamroot Jan AIR 1950 Pesh. 11; Saif ullah v. Ghulam Jabbar PLD 1955 Lah. 191; Noor Muhammad Khan v. Habib Ullah Khan PLD 1994 SC 650; Al-Quran: Surah Al-Araaf; Ayah 31: Surah Asrar; Ayah 26, Surah Furqan; Ayah 67 Surah Baqara; Ayah 219; Majmooa-e-Qawaneen-e-Islam by Dr. Tamzil-ur-Rehman Vol-III; Baday-ul-Sanie by Imam Qasami, published in Egypt, 1910 Vol. VI, P.127. Kitab-ul-Mizan at Kubra by Imam Shirani Shafi, published in Egypt Vol.II P.100. rel.

Malik Abdul Qadoos for Petitioners.

Malik Muhammad Asif for Respondents.

2022 M L D 218

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, J

MOHAMMAD SHAFIQ---Appellant

Versus

The STATE through Additional Advocate-General, Darul Qaza, Swat and another---Respondents

Criminal Appeal No.88-M with Murder Reference No.1-M of 2020, decided on 25th November, 2020.

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

----S.302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Confessional statement of accused---Scope---Accused was charged for committing murder of his wife and her sister by firing---Accused got recorded his confessional statement before the Naib Tehsildar---Prosecution had produced Naib Tehsildar who had stated in his examination-in-chief that on receipt of information of the occurrence, he had proceeded to the spot along with other personnel of Levies, where he had found accused tied with a tree being apprehended by people of the locality after commission of the offence---Accused had been released there-from and taken in custody by the said witness---Said witness had further stated that on same day, the accused had been produced before him for recording his confessional statement, where he had given a time of 15-20 minutes to accused for reflection and had thereafter recorded his confessional statement---In the opening line of his cross-examination, said witness submitted that he had also conducted partial investigation in the case---Naib Tehsildar was not having any legal capacity to exercise the powers of a Magistrate---Statement of the accused recorded before Naib Tehsildar could not, therefore, be considered as a valid confessional statement recorded before a Magistrate---Said confessional statement was, therefore, inadmissible in evidence---Proceedings conducted by Political Authorities under erstwhile Frontier Crimes Regulations (FCR) or Fata Interim Governance Regulation (FIGR) might be given protection under Art. 264 of the Constitution, provided it had taken place during currency of the FCR or FIGR and not after its repeal---On the date of recording confessional statement of the accused, Criminal Procedure Code, 1898, had been applicable in the case and a confessional statement not recorded before the Magistrate could not be considered as a valid piece of evidence---Confessional statement when was taken out of consideration, then no direct evidence of commission of the offence by the accused had been available with the prosecution---Record showed that there had been evidence of facts occurring after the incident, but no evidence of the actual occurrence had been available with the prosecution---Circumstances established that the prosecution failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstance.

Shah Zal v. The State 2021 YLR 202 and National Commission on Status of Women through Chairperson and others v. Government of Pakistan through Secretary Law and Justice and others PLD 2019 SC 218 rel.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Unseen occurrence---Scope---Accused was charged for committing murder of his wife and her sister by firing---Naib Tehsildar while recording accused's statement as well as complainant had stated that on receipt of information, they had proceeded to the place of occurrence where accused had been tied by the local people with a tree whereafter he had been unfastened and taken in custody---None of the two witnesses had been eye-witnesses of the occurrence---Same was the case with other witness, who had also reached the spot after receipt of information of the occurrence when people had already tied accused with a tree---Said witness had not been an eye-witness of the occurrence also---Statement of another witness/Assistant Political Agent had been recorded but he had also narrated the proceedings conducted after arrest of the accused---No direct evidence regarding commission of the offence by the accused was available---Some people of village might have seen the occurrence but none of them had been produced in evidence---Deficiency of ocular evidence of the actual occurrence could not be supplied by the subsequent evidence of arrest of the accused---Circumstances established that the prosecution failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Anwar v. The State 1997 PCr.LJ 2075 rel.

(c) Criminal trial---

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

Muhammad Khan and another v. The State 1999 SCMR 1220 rel.

Abdul Munim Khan for Appellant.

Sohail Sultan, Assistant Advocate General for the State.

Iftikhar Ali Khan for Respondent No.2.

2022 M L D 259

[Peshawar]

Before Syed Arshad Ali, J

JUNAID KHAN BABAR and 2 others---Petitioners

Versus

Mst. FARHAD BEGUM and 3 others---Respondents

Civil Revision No.789-P with C.M. No.1139-P of 2021, decided on 12th October, 2021.

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

----O.I, Rr.1 & 10---Conflicting/hostile parties, transposition of---Inheritance---Plaintiffs claimed that defendants were not the wives of their predecessor/deceased---Three plaintiffs supported the claim of defendants in examination-in-chief---Petitioners/other three plaintiffs moved application to Trial Court for transposition of legal heirs of said three plaintiffs---Said application was dismissed by both the courts below---Validity---Held, that in event of hostility of claim between the plaintiffs during proceeding, hostile plaintiffs might be transposed to the panel of defendant---Revision petition was allowed; said three Plaintiffs were transposed from panel of plaintiffs to that of defendants as proforma defendants; evidence recorded by conflicting/hostile witness was deemed to be a defence witness; and opportunity to cross-examine him was to be provided to plaintiffs.

Mian Abdul Waheed v. Mst. Amtul Hamid and others PLD 1962 (WP) Lahore 114 rel.

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

----O.I, Rr. 1 & 10---Conflicting/hostile parties, transposition of---Principle---Generally, parties could not be transposed from a panel to another panel without their counsel---Plaintiffs could, however, be remained joint only when they were commonly pursuing their relief and once there was conflict/hostility between the plaintiffs regarding nature of relief then such plaintiffs should be transposed in the array of defendants.

Shah Faisal Utmankhel and Fayaz Ahmad for Petitioners.

Muhammad Saddique Haider Qureshi, Iftikhar Ahmad and Hamza Bangash for Respondents.

2022 M L D 282

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmed, JJ

AMIR ZEB KHAN---Appellant

Versus

The STATE through Additional Advocate General and another---Respondents

Criminal Appeal No.77-M of 2019, decided on 22nd September, 2021.

Penal Code (XLV of 1860)---

----Ss.302, 324, 337-A(iv), 337-F(ii), 427 & 34---Qanun-e-Shahadat (10 of 1984), Art. 47---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-munaqqliah, badiah, mischief causing damage to the amount of fifty rupees or upward, common intention---Appreciation of evidence---Transposition of statement of witness already recorded---Scope---Accused were charged for making firing upon the brother of the complainant and his companion, due to which, the companion of the brother of complainant died at the spot while his brother sustained injuries---Motive behind the occurrence was land dispute and blood feud---Record showed that initially all the accused remained absconders and the Trial Court recorded the statements of prosecution witnesses and declared the accused persons as proclaimed offenders---Present accused was arrested and his challan was submitted before the Trial Court---Trial Court recorded statements of eleven witnesses whereas the statements of three witnesses including complainant already recorded during proceedings under S.512, Cr.P.C., were transferred to the trial of present accused due to their non-availability by allowing application---Validity---Record transpired that the Trial Court allowed the application on the same date without any notice to the opposite side and statements of injured, Investigating Officer and complainant were accordingly transferred to the trial of the present accused---At the time of the final decision of the case, Trial Court had considered the said statement of the complainant without taking notice of the fact that he had already been abandoned by prosecution---Admittedly, prosecution had examined injured therefore, transposition of the complainant was illegal---Once a witness was abandoned by prosecution then the court should have never ordered for transposition of his statement---Since the Trial Court, while convicting the present accused through the impugned judgment, had considered the statement of the said witness which was illegally transferred---High Court observed that it had become inevitable in the circumstances to remand the case to the Trial Court for its decision afresh---Appeal was allowed by setting aside impugned judgment and remitted the case to the Trial Court with the directions to decide the case afresh by excluding the statement of complainant.

Farman Ali for Appellant/convict.

Sohail Sultan, Assistant A.G. for the State.

Mehboob-ur-Rehman for the Complainant.

2022 M L D 303

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

Haji MIRZA KARIM and others---Petitioners

Versus

RESIDENTS OF DENIN LASHT through Wali Muhammad and others---Respondents

Review Petition No.17-M of 2018 in R.F.A. No.17 of 2012 and Review Petition No.18-M of 2018 in R.F.A. No.39 of 2012, decided on 29th March, 2021.

Civil Procedure Code (V of 1908)---

----Ss. 96 & 114---Review of judgment---Appeal, withdrawal of---Effect---Petitioners (all the residents of relevant area) were aggrieved of dismissal of appeals which were filed on the basis of compromise on their behalf---Petitioners sought review of dismissal orders on the basis of compromise---Validity---Withdrawal of appeal by representatives if not set aside through review would take judgment of Referee Court to its finality against residents in question, who would get adversely affected by finalization of such judgment---Petitioners seeking review of judgment were residents of the area in question---Review petitioners were 67 in number and none of them had claimed to be non-resident there---Petitioners had a right to be heard at appellate forum as appellants in appeals filed on their behalf in a representative capacity---High Court set aside orders under review and appeals dismissed as withdrawn were restored to their original numbers for decision on merits---Review was allowed accordingly.

Mt. Jaimala Kunwar and another v. Collector of Saharanpur and others AIR 1934 Allahabad 4; Siraj-ud-Din v. Mst. Amtul Rauf and 12 others PLD 1977 Kar. 933; Mrs. Afroz Shah and others v. Sabir Qureshi and others PLD 2010 SC 913; Saga Shipping and Trading Corporation Limited and 2 others v. Walia Steel Industries PLC through Attorney and 5 others 2020 CLC 275 and Habib Ullah and others v. Mir Zaman and others 2013 CLC 143 ref.

Gauhar Ali Khan, Advocate Supreme Court for Petitioners.

Khalil-ur-Rehman and Muhammad Ali for Respondents.

2022 M L D 317

[Peshawar]

Before Musarrat Hilali and Syed Arshad Ali, JJ

AHSAN ULLAH KHAN---Appellant

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Ehtesab Criminal Appeal No.03-P of 2021, decided on 1st July, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 31-A & 32---Absconding to avoid service of warrants---Conviction in absentia---Accused was convicted and sentenced to three years' imprisonment in his absence---Validity---Held, it was not intention of the Legislature for trial of accused under S.31-A of National Accountability Ordinance, 1999 in absentia---High Court set aside conviction and sentence awarded to accused in his absence and remanded the matter to Trial Court for proceedings in accordance with law---High Court directed that accused was to remain on bail till the conclusion of trial---Appeal was allowed accordingly.

Muharam Ali v. Federation of Pakistan PLD 1998 SC 1445; Manzar Qayyum v. The State and others PLD 2006 SC 343; Noor Muhammad Khatti v. The State 2005 PCr.LJ 1889 and Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 rel.

Barrister Syed Mudasser Ameer for Appellant.

Muhammad Riaz Mohmand, ADPG for Respondent/State.

2022 M L D 368

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

MUHAMMAD UZAIR---Appellant

Versus

The STATE through Additional Advocate General and another---Respondents

Criminal Appeal No.22-M with Murder Reference 1 of 2019, decided on 3rd June, 2021.

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

----Ss.302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Accused was charged for committing murder of his wife by firing---Ocular account of the incident had been furnished by two eyewitnesses---Said two witnesses had been closely related to the accused---Occurrence had taken place inside their house---Presence of said witnesses could neither be doubted nor had it been seriously questioned during the course of cross-examination---No reason existed for disbelieving testimony of said witnesses---Statements of said witnesses had also been consistent with other particulars of the case as well as the corroboratory evidence collected by the Investigating Officer during the course of investigation---No discrepancy could be found in their statements inter-se or when put in juxtaposition to other particulars of the case---Complainant in her examination-in-chief stated that at the time of arrival of police, she had not been in senses---Complainant had clarified in her cross-examination that she had regained her senses and thereafter lodged report of the occurrence to the local police---Said witnesses were absolutely reliable witnesses, whose statements had been sufficient for convicting the accused even in absence of any corroboratory evidence---Existence of any mala fide for false implication of the accused had been beyond imagination---No such fact could be brought by the defence side in support of existence of such a malice on part of eyewitnesses---Mere suggestion to complainant without any supporting material and background of any animosity would not be sufficient for doubting testimony of complainant---Both the witnesses had been absolutely reliable and no reason existed for discarding their testimony---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---However, there was no premeditation in committing murder nor had there been any motive, thus, death penalty was converted into life imprisonment, in circumstance---Appeal was dismissed with said modification in sentence.

Muhammad Iqbal and others v. Muhammad Akram and another 1996 SCMR 908 rel.

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

----Ss.302(b) & 109---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd, abetment---Appreciation of evidence---Confessional statement of accused---Scope---Accused was charged for committing murder of his wife by firing---Record showed that accused got recorded his confessional statement on 03.08.2017 while he was arrested on 31.07.2017---Accused, in his confessional statement, had stated that due to quarrel between his mother and ex-wife, his mother had left house and went to the house of his maternal grandmother while his wife had gone to his paternal grandmother/complainant---Accused stated that he repeatedly requested his ex-wife to come along with him to their own house but she refused and therefore he fired at her and also intended to kill himself, but a bullet got stuck in the pistol---For proving the confessional statement, prosecution had also examined the concerned Judicial Magistrate who had deposed in respect thereof and his testimony had also remained intact---During the course of cross-examination, nothing could be found which could have shaken evidentiary value of the confessional statement---In addition to the eyewitness account, confessional statement of the accused might also be considered safely---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---No premeditation in committing murder nor had there been any motive---Death penalty was converted into life imprisonment, in circumstances---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Recovery of weapon of offence and crime empty---Reliance---Scope---Accused was charged for committing murder of his wife by firing---Record showed that the pistol had also been recovered on pointation of the accused vide recovery memo---In said recovery memo, a bullet had got stuck in chamber of the pistol---Pistol had also been exhibited in statement of Investigating Officer---Said factum was providing sufficient corroboration to the confessional statement of the accused, which was even otherwise found to have been recorded voluntary besides being proved in its contents---Alleged pistol along with one empty shell and four live cartridges of same bore had also been sent to the Forensic Science Laboratory for the purpose of chemical analysis, wherefrom matching report had been received and placed on record of the case---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---No premeditation in committing murder nor had there been any motive---Death penalty was converted into life imprisonment, in circumstances---Appeal was dismissed with said modification in sentence.

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

----Ss.302(b) & 109---Sentence, reduction in---Mitigating circumstances---Qatl-i-amd, abetment---Appreciation of evidence---Accused was charged for committing murder of his wife by firing---Accused had committed the offence in a state of mind where his emotions overpowered him all of a sudden and he made firing at the deceased lady---Apparent from the confessional statement of the accused that he first requested and insisted that the lady should accompany him to is house---Couple had entered into a love marriage about two years before the occurrence, which fact was evident from the statements of sisters of the deceased---Emotional state of mind of the accused was also depicted from the fact that he even intended to kill himself but was prevented by the stucking bullet in chamber of the pistol, as per contents of the confessional statement, which had been accepted as true and voluntary---No premeditation in committing murder nor had there been any motive---Contributing factor of quarrel between mother and wife of the accused had happened all of a sudden---Refusal of the deceased to accompany the accused had put the accused in such an emotional state of mind in which he had committed the unfortunate incident, not only killed the deceased but also devastated his own life---Imprisonment of death penalty was not found justified, in circumstances, which was reduced to imprisonment for life---Appeal was dismissed by altering the death sentence into life imprisonment.

Muhammad Nabi for Appellant.

Sohail Sultan, Asst: A.G. for the State.

Gul Munir Khan for the Complainant.

2022 M L D 384

[Peshawar]

Before Lal Jan Khattak and Musarrat Hilali, JJ

MUKHTAJ and 4 others---Petitioners

Versus

EBN-E-AMIN and another---Respondents

Criminal Appeal No.852-P of 2020, decided on 15th October, 2021.

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

----Ss.302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---No justification for the presence of eyewitness at the time of occurrence---Scope---Accused persons were charged for committing murder of the complainant then injured and his son by firing---Motive for the occurrence was stated to be previous blood-feud---Ocular account was furnished by step brother of deceased---Name of said witness though was mentioned in the FIR as an eyewitness of the occurrence, however, presence of the said witness on the spot at the time of occurrence was doubted for the reasons that initially he was not with the victims when they left for other place---Witness had stated that he went behind his brother and nephew when they got late---Evidence of said witness nowhere showed that he was aware of both the deceased going to bazar and when he had no knowledge of the victims for their going to bazar, then how he left for their search to the particular place i.e. the bazaar---Witness stated that the wife of the deceased had not informed him about the specific places in the bazaar nor the name of the person with whom they had to meet---When neither the specific place was known to the witness nor the person whom the deceased had gone to meet, then his seeing the deceased and that too at the time of occurrence could only be termed an extraordinary happening---High Court observed that extra ordinary event had to be properly explained by the person who claimed to have seen it which was not the case in hand---No doubt, sometime extraordinary events took place but in the attending circumstances of the case, presence of eyewitness was not believable on the spot as neither he knew the person whom his brother and nephew had gone to meet nor the place of their visit anywhere, therefore, arrival of the witness on the spot at the time of occurrence was doubtful, hence his evidence could not be believed---Circumstances established that the prosecution had not proved the case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss.302(b), 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Dying declaration---Scope---Accused were charged for committing murder of the complainant then injured and his son by firing---Dying declaration of deceased was not free from foreign interference as his step brother/eyewitness was present around him at the time when such statement was being given---Testimony of the said witness had been disbelieved thus, in such like situation interference on behalf of said witness in the statement of his brother, who was returning to his Creator to make an exaggerated account of the occurrence, could not be ruled out---Medical Officer who had examined the declarant had found his condition very serious whereafter referred him for further treatment to other hospital---Endorsement of the Medical Officer appearing at the corner of the FIR and the referral chit, it would appear that the deceased at the time of his death could not be in a position to narrate about the occurrence in detail as had been narrated in the FIR---Circumstances established that the prosecution had not proved the case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss.302(b), 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Dying declaration and site plan---Contradictions---Accused were charged for committing murder of the complainant then injured and his son by firing---Record showed that the dying declaration of the deceased had not been supported by site plan of the case---In the FIR, the deceased were hit by the fire shots when they were riding on motorbike and after hitting they fell down---According to the site plan, both the victims were hit---Keeping in view the serious conditions of both the victims, it was not possible for them to cover a distance of 17/18 paces and let assume that they were in a position to move and they did so, then there must have been some trail of blood from point where they were hit and fallen whereafter receiving firearm injuries they had reached which was not the present case---Site plan did not corroborate the facts as narrated in the FIR---Circumstances established that the prosecution had not proved the case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss.302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of crime empties from the spot---Reliance---Scope---Accused were charged for committing murder of the complainant then injured and his son by firing---There was no report of Forensic Science Laboratory that the 03 empties of 222 bore and 9 empties of 7.62 bore collected from the spot were fired from more than one weapons---In the present case, five persons, four of whom were brothers and one was nephew, were charged for the murder of two persons---Production of the Forensic Science Laboratory Report showing that the empties were fired from five weapons was must which material piece of evidence the prosecution had not produced and it appeared that the charge was exaggerated one, which lamentable trend was very common in the area---Circumstances established that the prosecution had not proved the case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Jalal-ud-Din Akbar-e-Azam Khan Gara and Shabbir Hussain Gigyani for Appellants.

Muhammad Inam Yousafzai, A.A.G. for the State.

Syed Abdul Fayaz for the Complainant.

2022 M L D 429

[Peshawar (Bannu Bench)]

Before Musarrat Hilali and Sahibzada Asadullah, JJ

JEHANGIR KHAN---Appellant

Versus

STATE and others---Respondents

Criminal Appeal No.186-B of 2018, decided on 12th October, 2020.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, alteration of---Accused was charged for committing murder of brother of the complainant by firing---Motive was a dispute over the construction of a warkha/vial---Complainant stated that he along with the eyewitness was present and busy in the construction work and the deceased was busy to supply bricks---Accused attracted to the spot and killed the deceased---Complainant further stated that soon after the incident the accused decamped from the spot, but he failed to explain that why no efforts were made to shift the dead-body either to the hospital or to the concerned police station for registration of case---Witness was cross-examined on that particular aspect of the case but he failed to explain as to what precluded them from approaching the local police---Investigating Officer explained that the dead-body was sent to the hospital but neither the complainant nor the eyewitness accompanied the same---Complainant was cross-examined that why he did not accompany the dead-body to the hospital, he replied that he and the eyewitness were asked to stay on the spot till arrival of the Investigating Officer, however, neither the Investigating Officer nor the scribe confirmed that stance---Surprisingly, a real brother despite his presence on the spot did not accompany the dead-body of his younger brother to the hospital, which gave an impression that the complainant was not present on the spot and that the dead-body was shifted to the hospital by the people present there---Presence of complainant was further doubted when the dead-body was identified by the identifiers who hailed from a different village lying at a distance of 3/4 kilometers from the spot, who too were the close relatives of the deceased---Deceased was a student of tender age with no direct motive with the accused, then what led the accused to kill the deceased and left the other---Said aspect of the case created doubt regarding presence of the complainant and the eyewitness on the spot at the time of incident---Appeal was partially allowed by altering the conviction awarded to the accused under S.302(b), P.P.C., to one under S. 302(c), P.P.C. and he was sentenced to ten years, in circumstances.

Muhammad Saleem v. The State 2010 SCMR 374 rel.

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

----S.302(b)---Qatl-i-amd---Criminal Procedure Code (V of 1898), S.340(2)---Appreciation of evidence---Sentence, alteration of---Examination of accused---Scope---Accused was charged for committing murder of brother of the complainant by firing---Accused while recording his statement under S.340(2), Cr.P.C. explained that on the day of occurrence deceased and others were busy in demolishing the warkha---Accused requested them to stop demolishing until the matter was resolved, which annoyed them and they started beating him with their weapons etc., they broke his spectacles and torn his clothes---Meanwhile, one of the companion, made a fire which hit the deceased who fell on the ground---Accused further stated that the co-villagers attracted to the spot and rescued him from the hands of the accused and to save his life---Accused produced a witness, who supported his version---Investigating Officer while preparing card of arrest of accused did not mention the injuries on his person and the condition of his clothes---Accused was examined by the Medical Officer, who found multiple blunt injuries on his body with torn/crushed clothes, but the conduct of Investigating Officer showed mala fide on his part---Circumstances suggested that plea of accused was nearer to the truth, however disagreed with his stance that it was the fire shot of one of the companions of deceased which went effective---Court felt no hesitation to hold that it was from the fire shot of the accused that the deceased got hit and died, but the injuries on person of the accused and his torn clothes belied what the SHO stated that he arrested accused with a Kalashnikov---Facts and circumstances of the case showed that incident occurred when the parties were engaged in a free fight, which resulted into the death of the deceased and injuries on person of the accused, however, deceased was never the target---Both the sides twisted the facts to their benefit, hence, in such eventuality the quantum of sentence called for interference, resultantly, appeal was partially allowed by altering the conviction awarded to the accused under S.302(b), P.P.C., to one under S.302(c), P.P.C. and he was sentenced to ten years.

Abdur Rehman alias Boota and another v. the State and another 2011 SCMR 34 rel.

Muhammad Rashid Khan Dirma Khel for Appellant.

Iftikhar Durrani for Respondent.

Shahid Hameed Qureshi Additional Advocate General for the State.

2022 M L D 448

[Peshawar]

Before Muhammad Naeem Anwar, J

ABDUL WAHAB---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.1763-P of 2020, decided on 6th July, 2020.

Criminal Procedure Code (V of 1898)---

----Ss.497, 86 & 561-A---Penal Code (XLV of 1860), Ss.381-A & 420---Theft of a car or motor vehicle, cheating and dishonestly inducing delivery of property---Post arrest 'transit bail'---Scope---Accused was arrested by the local police of a police station of Khyber Pakhtunkhwa in a case registered under Ss. 419, 420, 468, 471, 411 & 171, P.P.C., in which he was granted bail---However, accused could not be released from jail as he was also involved in another criminal case registered against him under Ss. 381-A & 420, P.P.C., at police station of Punjab Province---Since there was no warrant against the accused in that case, therefore, a complaint under S.54, Cr.P.C. was drafted against him and in pursuance thereof, he was produced by the Judicial Magistrate, who remanded him to judicial lock up with the direction to intimate the concerned police station---Since no arrangement for his shifting to the Province of Punjab was made, therefore, the accused filed an application before the sessions court of that Province under S.86, Cr.P.C., with a prayer to grant him post arrest transit bail in that case, but was refused---Validity---In the present case, neither the petitioner, as per contents of the FIR, was nominated as an accused nor warrant had been issued against him under Ss. 75/87, Cr.P.C. and he had been arrested under S.54, Cr.P.C., therefore he was to be dealt with under the provisions of S.60, Cr.P.C.---According to S.60, Cr.P.C. a Police Officer making an arrest without warrant would, without unnecessary delay and subject to the provisions herein contained therein as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case---In case petitioner had been arrested by the local police under S.54, Cr.P.C., and was behind the bars but neither any warrant had been issued against him nor there was correspondence in black and white regarding shifting of the petitioner-accused to Punjab, as depicted from the comments submitted by the Superintendent, Central Prison, Peshawar, therefore, the petitioner could not be kept in Jail for indefinite period---Petition was allowed and petitioner was released on interim bail---Petitioner was directed to appear before the proper forum at Punjab on or before 20.07 2020, failing which the law would take its own course.

1993 PCr.LJ 738 rel.

Ashfaq Ahmad Daudzai for Petitioner.

Ms. Sofia Noreen, Standing Counsel, along with Noor Muhammad, ASI for the State.

2022 M L D 464

[Peshawar(Abbottabad Bench)]

Before Ahmad Ali, J

ABDUL MATEEN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.39-A of 2020, decided on 21st February, 2020.

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

---Ss. 497 & 164-B---Penal Code (XLV of 1860), Ss. 377, 355 & 34---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), Preamble, Ss. 2(1)(e) & 53---Unnatural offence, assault or criminal force with intent to dishonour person, otherwise than on grave provocation and common intention---Child at risk---Sexual abuse---DNA test---Bail, grant of---Contradiction in medical and ocular evidences---Scope---Accused was alleged to have committed sodomy with the nephew of complainant---Medical report available on record suggested that no sexual act was done with the victim---No incriminating evidence was available on record except solitary statement of complainant 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 S.2(1)(e) of said Act 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, to the case of accused was a begging question---Section 164-B, Cr.P.C., was not complied with as no samples for DNA test 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---Petition was allowed, in circumstances.

(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 form 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.

Khursheed Azhar for Petitioner.

Sardar Muhammad Asif, AAG for the State.

Complainant in person.

2022 M L D 617

[Peshawar (Bannu Bench)]

Before Musarrat Hilali and Sahibzada Asadullah, JJ

The STATE through Advocate General Khyber Pakhtunkhwa, Peshawar---Petitioner

Versus

ARIF MOMEN---Respondent

Criminal Appeal No.106-B of 2016, decided on 4th May, 2020.

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

----Ss.302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Unnatural conduct of complainant---Chance witness---Scope---Accused was charged for making firing upon the complainant party, due to which maternal uncle of complainant was hit and died---Motive for the offence was stated to be previous blood feud between the parties---Complainant stated that the deceased had no ill will with the acquitted accused and that was on record that in fact the blood feud did exist between the complainant and accused---Why the deceased was chosen as the target, when the complainant being the prime target was present on the spot was not understandable---Complainant, eyewitness and the deceased were maintaining a distance of two paces, whereas the accused had been shown at a distance of nine paces, with no hindrance in between, so while lying on the ground the complainant if present would have been the easiest target---Complainant stated that at the time of incident he was armed with a Kalashnikov---When the accused was leaving the spot why accused was not fired at by the complainant---Had complainant been present on the spot, duly armed, the result would have been otherwise---Complainant displayed an unnatural conduct when he stated that the co-villagers accompanied dead-body to the hospital and he came to the spot from Police Station---Surprisingly, both the witnesses did not identify the deceased at the time when the inquest report was prepared and even at the time of post mortem examination---Circumstances established that the prosecution failed to establish the charges against the accused through cogent, coherent and confidence inspiring evidence---Appeal against acquittal was dismissed, in circumstances.

Ghulam Rabbani v. Muhammad Younis and another 2016 PCr.LJ Note 6 ref.

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

----S.154---Promptness in lodging the FIR---Scope---Mere promptness of report was not a guarantee to success and it alone could not certify the witness as truthful, rather the court was to see the accumulative effect of what the prosecution had collected.

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

----Ss.302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Delay of about ten days in sending the crime empties for analysis---Scope---Accused was charged for making firing upon the complainant party, due to which maternal uncle of complainant was hit and died---Record showed that three empties of 7.62 bore were recovered by the Investigating Officer while visiting the spot---Empties were sent to the Forensic Science Laboratory, where it was opined that all the three empties were fired from one and the same weapon---Empties were collected from the spot the same day but were received in the laboratory after 10-days of its collection, and the delay caused left unexplained---Prosecution failed to convince that the report with all the inherent defects could be taken against the accused, when the report had lost its efficacy to be considered as a valuable piece of evidence to facilitate in awarding conviction in offences entailing capital punishment, the same was not considered---Circumstances established that the prosecution failed to establish the charges against the accused through cogent, coherent and confidence inspiring evidence---Appeal against acquittal was dismissed, in circumstances.

Bakht Munir v. The State 2016 PLD 634 rel.

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

----Ss.302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Motive not proved---Effect---Accused was charged for making firing upon the complainant party, due to which maternal uncle of complainant was hit and died---In the present case, the motive for the offence was stated to be previous blood feud between the parties---Record showed that the complainant admitted in his court statement that the deceased had no ill will with the accused, rather it was the complainant who was at daggers drawn---No other option was left but to hold that it was the complainant who wanted to grind his axe by charging the accused---Investigating Officer could not collect anything on record in support of the motive---Circumstances established that the prosecution failed to establish the charges against the accused through cogent, coherent and confidence inspiring evidence---Appeal against acquittal was dismissed, in circumstances.

(e) Criminal trial---

----Motive---Scope---Motive was double edged weapon, which cut either way---Absence and weakness of motive would not have a casting vote against the prosecution, but equally true that once the motive was alleged and was not proved then it was none else but the prosecution to suffer.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.

(f) Criminal trial---

----Abscondence---Scope---Abscondence of accused was a relevant factor, but alone it could not be considered a conclusive proof of a crime as the prosecution had to independently prove the charge on the basis of strong and cogent evidence to hold that the accused had committed the crime.

Muhammad Sadiq v. The State 2017 SCMR 144 rel.

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

----S.417---Appeal against acquittal---Interference--- Compelling reason---Scope---Order of acquittal could not be interfered with because the presumption of innocence of the accused was further strengthened by acquittal---Golden thread which ran through the web of administration of justice in criminal cases was that if two views were possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which was favourable to the accused was to be adopted.

Qudratullah Khan, Asstt. A.G. for the State.

Respondent in person along with Inamullah Khan Mandra Khel for Respondent.

2022 M L D 638

[Peshawar]

Before Lal Jan Khattak and Shakeel Ahmad, JJ

SALAMATULLAH ---Petitioner

Versus

The CHIEF SECRETARY GOVERNMENT OF KHYBER PAKHTUNKHWA, CIVIL SECRETARIAT, PESHAWAR and 4 others---Respondents

Writ Petition No.4174-P of 2020, decided on 14th July, 2021.

(a) Maxim ---

----Ubi jus ibi remedium---Scope---Islamic Injunctions and Teachings grant every aggrieved person the freedom to lodge protest---Every aggrieved person has a right of representation---Such person is free to lodge an appeal against an order affecting him adversely and it is his right that his appeal will be adjudicated upon without inordinate delay by an independent Tribunal---Aggrieved person can, under no circumstances be stopped from exercising his basic right.

Ayat No.148 Sura 4 Al-Nisa of Holy Quran and Ayat No.1 Sura 58 Al-Mujadilah (The Pleading one) of Holy Quran rel.

(b) Administration of justice---

----Maxim: Ubi jus ibi remedium---Scope---Aggrieved person has unfettered right to lodge a protest or prefer an appeal before a higher authority with the object of seeking redressal of grievance---Authority hearing the appeal is under obligation to decide the same---Arbiter is required to give due weight to violation of human rights and human dignity---Authority may, where necessary, impose a penalty upon the violator of human rights---Even a law can be amended/repealed on account of a protest---Right of an individual to initiate proceedings cannot be circumscribed.

Ayat No.148 Sura 4 Al-Nisa of Holy Quran; Ayat No.1 Sura 58 Al-Mujadilah (The Pleading one) of Holy Quran and Ayat No.4 of Sura Al Mujadilah rel.

(c) Constitution of Pakistan---

----Arts.19 & 14---Freedom of speech---Inviolability of dignity of man---Scope---Islam has conferred upon human beings the freedom of expression---Grievances have to be redressed---Any bar on this right is negation of the Divine principle of human dignity.

Pakistan and others v. Public at Large and others PLD 1987 SC 304; Pakistan through Secretary Ministry of Defence v. The General Public PLD 1989 SC 6; In re: The Civil Servants Act, (LXXI of 1973) PLD 1984 Federal SC 34; Messrs Sadiq Brothers v. Appellate Additional Commissioner, Income Tax/Wealth Tax, Rawalpindi and another 2004 PTD 122 and Dr. Muhammad Aslam Khaki and others v. Government of Punjab and others PLD 2005 Federal Shariat Court 3 ref.

Nahajul Balega as Khutba No.86 and Ayat No.257 of Sura 2 Al Baqra rel.

(d) Public functionaries---

----Held, it has been statutorily provided that every public functionary shall exercise the jurisdiction vested in it reasonably, fairly, justly and for the advancement of the purposes of the enactment.

(e) Public functionaries---

----Early decision on the representation/appeal of an aggrieved person is an inherent right of every citizen and such public functionary shall not keep the representation/appeal of an aggrieved person undecided for an indefinite period---Authority, officer or person making any order or issuing any direction shall provide a copy of the order to the person affected prejudicially, and he is also supposed to give reasons in support of the decisions, orders, especially when someone is deprived of his vested right.

Ghulam Mohy-ud-Din Malik for Petitioner.

2022 M L D 660

[Peshawar]

Before Ahmad Ali, J

ROIDAD KHAN---Petitioner

Versus

STATE and another---Respondents

Criminal Miscellaneous Bail Application No.3663-P of 2019, decided on 2nd January, 2020.

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

----S.497---Penal Code (XLV of 1860), S.302---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd---Unlicensed possession of arms---Bail, grant of---Scope---Accused was alleged to have murdered the son of complainant---Nobody was initially charged for the commission of offence---Complainant had recorded his statement under S.164, Cr.P.C., with a considerable delay and without disclosing his source of information that his son was put to death by the accused---No direct evidence was available to prima facie connect the accused with the commission of offence---Evidence regarding last mobile contact in the absence of any corroborative evidence was a weak type of evidence, especially when it was not mentioned in the FIR that at what time deceased was lastly seen in the company of the accused---So far as recovery of weapon of offence and burnt mobile of deceased were concerned, the same was not recovered from the direct possession of accused---Case of accused required further probe to establish his involvement in the commission of offence---Petition for grant of bail was allowed, in circumstances.

2017 SCMR 61; 2014 SCMR 12 and 1996 SCMR 1845 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 form 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.

Muhammad Afaaq Afridi for Petitioner.

Umar Farooq, A.A.G. for the State.

Alam Khan Adenzai for the Complainant.

2022 M L D 681

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

SAMIULLAH---Petitioner

Versus

REHMATULLAH and another---Respondents

Civil Revision No.102-B of 2021, decided on 6th December, 2021.

Specific Relief Act (I of 1877)---

----Ss.12 & 37---Qanun-e-Shahadat (10 of 1984), Art. 59---Alternative remedy---Suit for specific performance---Agreement to sell---Proof---Respondent alleged to have paid Rs.3,00,000/- as earnest money and agreed to pay rest of the amount on attestation of mutation---Allegedly it was settled that in case of failure on part of petitioner/defendant, he would pay an amount of Rs.6,00,000/- to respondent; whereas in case of failure on part of respondent, he would pay Rs.3,00,000/- to petitioner---Respondent No.1 had allegedly refused to transfer property and receive remaining amount---Respondent prayed for recovery of Rs.3,40,000/- in the alternate---Mother of petitioner/defendant No.2 submitted application under O.VII, R.11 of Civil Procedure Code, 1908 which was allowed on ground that she was the owner of property but neither she had entered into any agreement with plaintiff nor she had given any power of attorney to her son/petitioner---Suit was concurrently decreed to the extent of alternate prayer---Validity---Respondent had produced scribe who deposed in cross-examination that no sale consideration had been paid in his presence---Respondent appeared as witness and deposed in cross-examination that amount was paid at time of scribing of agreement---Marginal witness deposed that respondent had paid amount in his presence in his baithak and thereafter they proceeded to the petition writer for scribing of deed---Civil suits had to be decided on basis of preponderance of evidence and respondent was required to prove his case through cogent, coherent, reliable and convincing evidence---Neither the payment of sale consideration was proved nor witnesses were consistent---No denial of the fact that petitioner was neither owner of property nor he was legally appointed special attorney of his mother/defendant---Defendant (mother) was struck off from the panel of defendants but such order of Court was not assailed by respondent---Person could not transfer title better than his own---Respondent stressed for allowing his application for examination of thumb impression of petitioner---Opinion of expert was the weakest type of evidence which could only be considered as corroborative piece of evidence---Statements of witnesses were not in line with each other, hence respondent could not be held entitled for an alternate decree---Revision petition was allowed and suit was dismissed accordingly.

Sardar Ali v. Wazir Khan 2005 SCMR 1583; Muhammad Rasheed Khan's case 2009 SCMR 740; Itbar Shah and others v. Ahmad Shah ad others 2001 CLC 1021 and Abdul Hameed through legal heirs and others v. Shamsuddin and others PLD 2008 SC 140 rel.

Ashiq Hussain Marwat for Petitioner.

Umar Farooq for Respondents.

2022 M L D 695

[Peshawar]

Before Lal Jan Khattak, J

IHTESHAM UL HAQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.635-P of 2019, decided on 17th January, 2022.

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

----Art.133---Cross-examination of witness by accused---Effect---Trial Court had recorded cross-examination of two witnesses in absence of the counsel for the accused which exercise of powers had vitiated the entire subsequent case proceedings---Though the witnesses were cross-examined by the accused himself but when he had already engaged a lawyer to defend him in the case then in that situation the Trial Court was legally bound to adjourn the case for absence of the accused person's lawyer rather than proceeding with the case by directing and allowing the accused to do the duty of his lawyer---Proceedings conducted by the Trial Court in absence of the accused person's counsel could not be countenanced---Appeal was allowed, impugned judgment was set aside and the case was remanded to the Trial Court for decision afresh.

Noman-ul-Haq Kakakhel for Appellant.

Qazi Babar Irshad, DAG for the State.

Jalal-ud-Din for the Complainant.

2022 M L D 749

[Peshawar (D.I. Khan Bench)]

Before Musarrat Hilali, J

RAHEEM GUL---Petitioner

Versus

NADRA and others---Respondents

Civil Revision No.90-D of 2020, decided on 23rd September, 2021.

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

----Ss.5 & 12---Khyber Pakhtunkhwa Epidemic Control and Emergency Relief Act (XXVII of 2020), S.30---Specific Relief Act (I of 1877), S.42---Suit for declaration---Condonation of delay---Exclusion of time in legal proceedings---Scope---Appeal of petitioner was dismissed being filed beyond the scope of period provided for filing an appeal in the Limitation Act, 1908---Contention of petitioner was that delay was because of emergency owing to Covid-19 pandemic and it was not deliberate or intentional---Validity---Submission of the petitioner constituted a sufficient reason to condone the delay particularly in view of the provisions of S. 30 of the Khyber Pakhtunkhwa Epidemic Control and Emergency Relief Act, 2020---Word 'shall' used by Legislature made it mandatory and hence, there was even no need to file a separate application for condonation of delay---Even otherwise, appeal of the petitioner was well within time and there was no delay of even a single day in filing the appeal---Appeal was remanded to the Appellate Court to decide the same on merits---Civil revision was allowed.

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

----S.12---Exclusion of time in legal proceedings---Scope---In computing the period of limitation prescribed for an appeal, the day on which the judgment complained of was pronounced, and the requisite time for obtaining a copy of the decree, appealed from or sought to be reviewed, shall be excluded.

Sheikh Iftikhar ul Haq for Petitioner.

Abdus Salam, Law Officer NADRA for Respondents.

2022 M L D 915

[Peshawar]

Before Lal Jan Khattak and Musarrat Hilali, JJ

FAROOQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.616-P of 2017, decided on 7th December, 2021.

Penal Code (XLV of 1860)---

----S.302(b)---Juvenile Justice System Act (XXII of 2018), S.16---Qatl-i-amd---Appreciation of evidence---Juvenile offender---Quantum of sentence---Prompt FIR---Effect---Accused was a juvenile offender at the time of commission of offence, who was convicted and sentenced for committing Qatl-i-amd of a young boy---Trial Court convicted the accused and sentenced him to imprisonment for life---Validity---Accused was charged by complainant in a promptly lodged report within forty-five minutes, which ruled out possibility of deliberations or consultations as occurrence took place at 1100 hours while report was lodged by him at 1145 hours---Complainant appeared as prosecution witness and gave details of occurrence by supporting contents of FIR---Prosecution succeeded in establishing guilt of accused---High Court declined to interfere in conviction and sentence passed against accused, as the same was based on correct appreciation of evidence on record and there was nothing to indicate that it was either based on any error of law or the same was different to well-established principles of judicial approach or the same could in any manner be characterized as unjustified---Quantum of sentence under S.16 of Juvenile Justice System Act, 2018, when accused was juvenile at the time of commission of offence, death sentence could not be awarded---Appeal was dismissed, in circumstances.

PLD 2001 SC 222; Sheeraz Tufail v. The State 2007 SCMR 518; Muhammad Amin v. The State 2000 SCMR 1784; Haroon alias Haroni v. The State 1995 SCMR 1627 and Muhammad Hayat v. The State 1996 SCMR 1411 ref.

Astaghfirullah and Yaseen Ullah for Appellant.

Mujahid Ali Khan, Additional Advocate General for the State.

Ismail Khan for the Complainant.

2022 M L D 937

[Peshawar]

Before Lal Jan Khattak and Syed Arshad Ali, JJ

SULEMAN KHAN---Appellant

Versus

The STATE through Advocate General,Khyber Pakhtunkhwa---Respondent

Criminal Appeal No.1169-P of 2018, decided on 25th November, 2021.

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

----S.9(c)---Transportation of narcotics---Appreciation of evidence---Delay in sending samples to Forensic Laboratory---Non-production of eye-witness---Effect---Scope---Accused was alleged to have been apprehended while transporting eighty four kilograms of charas---Samples recovered were received at the Forensic Laboratory for their chemical examination after a delay of six days for which no reasonable explanation was given---No material was available on record to show that in whose custody the samples had remained during those six days---Besides, in the Register XIX, there was no entry in the relevant column that the representative samples were deposited in the police malkhana---Constable who had taken the case murasila from the spot to the police station, who was also a witness to the occurrence, was not produced by the prosecution---Prosecution in order to bring home guilt to an accused had to establish its case through reliable and trustworthy evidence, which prosecution failed to do---Appeal against conviction was allowed, in circumstances.

Ms. Zohra Durrani for Appellant.

Rab Nawaz Khan, A.A.G. for the State.

2022 M L D 945

[Peshawar]

Before Lal Jan Khattak and Muhammad Naeem Anwar, JJ

Mst. MEHNAZ BIBI and 2 others---Petitioners

Versus

MUHAMMAD TAHIR and another---Respondents

Writ Petition No.2788-P of 2020, decided on 4th May, 2021.

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

----S.14---Constitution of Pakistan, Art.199---Interim maintenance allowance---Enhancement/reduction of interim maintenance allowance in Constitutional jurisdiction of High Court---Scope---Where interim maintenance allowance fixed by Family Court is not sufficient even to meet the basic requirements of the minor, in such circumstances High Court can enhance the interim maintenance and if exorbitant maintenance has been fixed the same can be reduced notwithstanding, the provision of S.14(3) of Family Courts Act, 1964.

Basharat Ali v. Additional District Judge, Multan and 4 others 2018 MLD 785 and Makhdoom Ali v. Mst. Razia Sultana and others 2007 MLD 41 ref.

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

----S.17-A---Interim maintenance allowance, determination of---Scope---Interim maintenance allowance is to be fixed based on the financial status (of father) on one hand and on-going day to day basic requirements of minors for their survival including amenities like food, clothing, shelter, education and other necessitates of life on the other.

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

----S.5, Sched.---Maintenance allowance for son and daughter---Scope---Father has to maintain his son only till he attains majority, while, he has to maintain his daughter till her marriage and till the time she goes to her husband's home.

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

----S.5, Sched.---"Nafaqah"---Meaning---Nafaqah is an Arabic word, rooted from infEq(sic), which means to spend for a good purpose---Literally it means what a person spends for his family members---In general, maintenance refers to what is spent to support one's family with food, clothing, accommodation and other expenditures.

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

----Ss.5 & 17-A---Interim maintenance allowance, determination of---Scope---Child is an individual falling within the age bracket starting from new born till the age of puberty or the legal age of majority---Rights are given to a child by the Holy Quran---Text of the Holy Quran has mentioned a child as a member of society and as such specified the child's rights and indicated that it is the key social responsibility of father to fulfil his duty regarding upbringing of child---At the time of making of any order for maintenance allowance, the Family Court should be more careful while fixing the interim maintenance, for the reason that the same should always be varied or enhanced, as the order of interim maintenance is always tentative in nature which has no effect or bearing on the final order.

Verse No.233 of Surah 'Al Baqarah' and Noor Ul Sahar and another v. Tahir Naqash Khan Khattak and another 2021 CLC 374 rel.

Ms. Mehwish Ashfaq for Petitioners.

Muhammad Ashfaq Khan Akhunkhel for Respondents.

2022 M L D 1097

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah and Muhammad Naeem Anwar, JJ

MUHAMMAD KARIM---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.138-B of 2019, decided on 21st September, 2021.

(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---Presence of the eyewitness at the place and time of occurrence was doubtful---Scope---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant was hit and died---Motive behind the occurrence was stated to be the blood feud between the parties---Record told that it was the deceased who received the firearm injuries and no injury was caused to the complainant, though the complainant charged the accused for firing at him, but the same proved ineffective---Inter-se distance between accused and the complainant was so short that had he been present and was fired at, he would not have survived, but the circumstances told otherwise---Complainant was yet to explain that when the Investigating Officer reached to the spot, why he did not produce the purchased items---Interesting to note that when the deceased received fatal shot and fell to the ground even then the household articles were in possession of the complainant, which were handed over to one of his villagers---On one hand, the conduct of the complainant was unnatural and on the other, if the said villager was present at the time of incident, what precluded the complainant to disclose his name to the Investigating Officer and that why his name was not included in the calendar of witnesses---Prosecution travelled with strange behaviour, despite the fact the injured was available in the hospital at the time of report, but was not asked to verify the report made by the complainant, that too, in his presence---Presence of the complainant had put in a fix and it was important to search for circumstances that substantiate his claim---Complainant during court statement stated that he hurriedly transported the dead-body of the deceased to the hospital, knowing the fact that the deceased breathed his last on the spot---Complainant when knew that the deceased had died, then why the dead-body was not shifted to the local Police Station, situated at a distance of three furlong and that why the incident was reported in the hospital---Another intriguing aspect of the case was that the report was made to the scribe at 01:30 p.m. who thereafter prepared the injury sheet and inquest report, but the doctor disclosed the time of arrival of the dead-body as 01:15 p.m. and the time of post-mortem as 02:00 p.m.---When dead-body was present before the doctor at 01:15 pm, then how the report was made at 01:30 p.m. and that why the doctor did not conduct the post-mortem examination soon after the dead-body was produced before him---Delay caused gave an inference that all waited for arrival of the complainant, whose village was situated at a distance of one hour travel---Overall circumstances strengthened the belief that after receiving the firearm injuries the deceased was shifted by the people to the hospital, as the complainant was not available at the time of incident---Said fact was further corroborated by the fact that in his report, the complainant specified the weapon of offence as pistol, whereas in the inquest report the word deadly weapon had been used---Had the report been made in the mode and manner, then the scribe instead using the word "firearm" would have used the word "pistol" and the complainant would have also figured in the columns of identification of both the inquest and post-mortem reports---Circumstances established that the prosecution did not succeed in bringing home guilt against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

(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---Contradictions in the statements of witnesses---Scope---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant was hit and died---Complainant when appeared before the Trial Court stated that while present on the spot with the Investigating Officer, along with Police Officials brought the accused and in his presence .30 bore pistol along with ammunitions were recovered from the accused by the Investigating Officer---Investigating Officer during his Court statement stated that the accused was arrested a little away from the Police Station and that it was he who recovered the pistol along with ammunitions from his personal possession---Circumstances established that the prosecution did not succeed in bringing home guilt against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, 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---Recovery of weapon of offence from the possession of accused---Reliance---Scope---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant was hit and died---Police Official/ASI stated that at a distance of one furlong from the police station, the accused was arrested and at the time of arrest, he recovered .30 bore pistol along with fitted magazine containing live rounds, but while preparing the card of arrest said witness did not mention the recoveries effected from personal possession of the accused---Prosecution was to tell as to whether it was ASI/Police Official, who arrested the accused and effected recoveries from his personal possession or, that it was the Investigating Officer who recovered the pistol along with ammunition---Both the said witness did not support each other the way the recoveries were effected---Situation was further deteriorated by the complainant, when he stated that the Investigating Officer recovered the weapon of offence from personal possession of the accused in his presence---Conflict among the three spoiled the validity of that piece of evidence---Another aspect of the case was that soon after its alleged recovery, the pistol being the weapon of offence was not sealed into parcel and the possibility could not excluded of its having been tampered---Investigating Officer did not record statements of the concerned Police Officials to establish its safe custody---Circumstances established that the prosecution did not succeed in bringing home guilt against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of more than one month in sending the weapon of offence for analysis---Scope---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant was hit and died---Weapon was allegedly taken into possession on the day of incident but the same was received by the Forensic Sciences Laboratory, with a considerable delay of more than one month---Prosecution failed to explain that where such important piece of evidence was lying in the intervening period---Prosecution could not explain the safe custody and its delayed sending to the laboratory---More interestingly, neither the statement of the Police Official in whose custody the said weapon was lying nor the statement of the concerned Police Official who took the same to the Forensic Sciences Laboratory, was recorded---Circumstances established that the prosecution did not succeed in bringing home guilt against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstance.

(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---Mode and manner of the arrest of the accused was doubtful---Scope---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant was hit and died---Knowing the fact that accused had killed the deceased, the accused was still roaming around the concerned Police Station, that too, the weapon of offence in possession---Such was hard to believe that right from the time of occurrence the accused was waiting the local police to arrest him, despite having the opportunity to escape---Overall situation portrayed, left no room to doubt that the accused was not arrested at the stated time and in the given manner---Circumstances established that the prosecution did not succeed in bringing home guilt against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

Hayat Ullah v. The State 2018 SCMR 2092 rel.

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

----Ss.302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Conflict---Scope---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant was hit and died---Complainant in his court statement stated that after purchasing the house hold articles they were proceeding towards the Datson Adda (Bus stop)---Site plan depicted that while moving towards Adda from point of the complainant and deceased, one must face the east and in that eventuality, the deceased must received firearm entry wounds on his front with its exit on his back, but the medical evidence did not support the case of the prosecution---No doubt, medical evidence was confirmatory in nature and it could not outweigh the ocular account provided the ocular account was confidence inspiring---In case where a witness failed to establish his presence on the spot then in that situation resort could be made to the medical evidence, and in that eventuality it was the medical evidence that steered the wheel---Complainant could not convince regarding his presence on the spot when the deceased was done to death, then the conflict between the medical and ocular account could not be ignored---Conflict between the two had damaged the prosecution case beyond repair---Circumstances established that the prosecution did not succeed in bringing home guilt against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

Amin Ali and another v. The State 2011 SCMR 323 and Mansab Ali v. The State 2019 SCMR 1306 rel.

(g) 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---Withholding material evidence---Scope---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant was hit and died---Prosecution had two important witnesses in its armoury but with no plausible explanation was given that why they were not produced---Injured was one of the most important witnesses, that too, with stamp of injuries on his person, but neither he was produced before the Trial Court nor the need was felt to verify the report of the complainant from him---Investigating Officer did not mention the reasons which stopped him from producing the injured witness before the trial Court---Complainant introduced the presence of one "Y" at the time of incident but, he too was not produced before the Investigating Officer to record his statement regarding the incident---If best available evidence was not produced, then inference must always be drawn against the prosecution, that had he been produced, he would not have supported the false claim of the complainant---Circumstances established that the prosecution did not succeed in bringing home guilt against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

Tahir Khan v. The State 2011 SCMR 646 rel.

Salah-ud-Din Marwat for Appellant.

Complainant in person.

Qudratullah Khan Gandapur, Assistant Advocate General for the State.

2022 M L D 1123

[Peshawar]

Before Rooh-ul-Amin Khan, J

AHMAD KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.3315-P of 2021, decided on 8th October, 2021.

Criminal Procedure Code (V of 1898)---

----S.497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 9(d) & 11(b)---Juvenile Justice System Act (XXII of 2018), Ss.6 & 2(g)---Possession of narcotics---Prohibition of methamphetamine---Release of juvenile on bail---Scope---Bail, refusal of---Scope---Accused was alleged to have been found in possession of 3300 grams of charas and 180 grams of heroin---Age of accused according to Birth Registration Certificate issued by NADRA was 17 years, 11 months and 25 days on the day of occurrence---Section 6(4) of the Juvenile Justice System Act, 2018 provided that where a juvenile of more than sixteen years of age was arrested or detained for a heinous offence, he might not be released on bail if the Juvenile Court was of the opinion that there were reasonable grounds to believe that such juvenile was involved in commission of a heinous offence---Under S. 2(g) of Juvenile Justice System Act, 2018, "heinous offence" included an offence punishable with death or imprisonment for life or imprisonment for more than seven years---Even if the alleged juvenility of the accused was taken into consideration, he was not entitled to the concession of bail under the provisions of Juvenile Justice System Act, 2018, governing the grant of bail to a juvenile---Petition for grant of bail was dismissed, in circumstances.

Hassan Zaib Rahim for Petitioner.

Arshad Ahmad, A.A.G. for the State.

2022 M L D 1143

[Peshawar]

Before Lal Jan Khattak and Abdul Shakoor, JJ

AL-ZAHID HEAVY EQUIPMENT through Zahid Hussain---Petitioner

Versus

PAKISTAN RAILWAYS through Chairman and 3 others---Respondents

Writ Petition No. 4074-P of 2021, decided on 2nd March, 2022.

Civil Procedure Code (V of 1908)---

----O.XXIII, R.1---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Alternate remedy---Proceedings before Civil Court---Withdrawal of proceedings---Effect---Petitioner assailed proceedings of tender floated by authorities---Earlier the matter was assailed before High Court in other province but the proceedings were withdrawn---Subsequently matter was laid down before Civil Court, which after interim order was challenged before Lower Appellate Court who struck down the injunction order so rendered by Civil Court---Such order of Lower Appellate Court led the path for authorities for withdrawal of Award Certificate with direction to leave premises and let petitioner to apply a fresh participant in fresh bidding process--- Validity---Provisions of O.XXIII, R.1, C.P.C. excluded a person from instituting a fresh suit in respect of same subject matter--- High Court declined to interfere in the matter by entertaining Constitutional petition when on the same point civil suit was pending--- Constitutional petition was dismissed, in circumstances.

1999 SCMR 2380 and 2000 SCMR 238 rel.

Waqas Ahmad Aziz for Petitioner.

Qazi Babar Irshad, DAG, along with Noor Khan for Official Respondent.

2022 M L D 1227

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah and Muhammad Naeem Anwar, JJ

RASHID ZAMAN---Appellant

Versus

AFZAL AWAN, SHO POLICE STATION TAKHT-E-NASRATI, DISTRICT KARAK and another---Respondents

Criminal Appeal No.321-B of 2019, decided on 22nd September, 2021.

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

----Ss.9(c) & 36---Recovery of narcotic substance---Appreciation of evidence---Benefit of doubt---Report of Government Analyst---Scope---Chain of custody of narcotic substance recovered---Charas Garda 14000 grams was allegedly recovered from accused who was convicted by Trial Court and sentenced to imprisonment for life---Validity---Chain of custody was pivotal as entire construction of Control of Narcotic Substances Act, 1997 and Control of Narcotic Substances (Government Analysts), Rules, 2001 rested on report of Government Analyst---Report in turn rested on process of sampling, and its safe and secure custody and transmission to laboratory---Prosecution was to establish that chain of custody was unbroken, unsuspicious, indubitable safe and secure---Any break in chain of custody or lapse in control of possession of sample, cast doubts on safe custody and safe transmission of sample(s) and had impaired and vitiated conclusiveness and reliability of report of Government Analyst---Prosecution failed to prove its case against accused persons beyond reasonable doubt---High Court set aside conviction and sentenced awarded to accused persons by giving them benefit of doubt and acquitted them of the charge---Appeal was allowed, in circumstances.

2012 SCMR 577; 2015 SCMR 1002; 2019 SCMR 1217; 2019 SCMR 1300; 2019 SCMR 2004 and 2020 SCMR 687 ref.

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

----S.36(2)---Control of Narcotic Substances (Government Analysts), Rules, 2001, R.6---Government Analyst Report---Protocols of test applied---Non-observance---Effect---Every test has its protocols, which are internationally recognized---Test without observance of its protocols has no sanctity---Full Protocols include description of each and every step employed by Government Analyst through the course of conducting a test---Report under R.6 of Control of Narcotic Substances (Government Analysts), Rules, 2001, must specify every test applied for determination of seized substances with full protocols adopted to conduct such tests---Non-compliance of R.6 of Control of Narcotic Substances (Government Analysts), Rules, 2001, can frustrate purpose and object of Control of Narcotic Substances Act, 1997, i.e., control of production, processing and trafficking of narcotic drugs and psychotropic substances---Conviction cannot be sustained on a Report that is inconclusive or unreliable---Evidentiary assumption attached to a Report of Government Analyst under S.36(2) of Control of Narcotic Substances Act, 1997 underlines statutory significance of Report---Details of test and analysis in the shape of protocols applied for the test become fundamental and go to the root of statutory scheme---Provision of R.6 of Control of Narcotic Substances (Government Analysts), Rules, 2001, is in public interest and safeguards rights of parties---Any Report (Form-II) failing to give details of full protocols of test applied is inconclusive, unreliable, suspicious and untrustworthy and do not meet evidentiary assumption attached to a Report of Government Analyst under S.36(2) of Control of Narcotic Substances Act, 1997.

2018 SCMR 2039; 2019 SCMR 930 and PLD 2020 SC 57 rel.

Iftikhar Durrani for Appellant.

Qudrat Ullah Khan Gandapur, Assistant Advocate General for the State.

2022 M L D 1259

[Peshawar]

Before Lal Jan Khattak and Abdul Shakoor, JJ

FAHAD ULLAH GUL---Petitioner

Versus

VICE-CHANCELLOR through Registrar Khyber Medical University Peshawar, Khyber Pakhtunkhwa and 10 others---Respondents

Writ Petition No.1069-P of 2021, decided on 23rd September, 2021.

Educational Institution---

----Admission to medical college---Two domicile certificates---Effect---Petitioner candidate was aggrieved of admission on seat reserved for students from erstwhile Federally Administered Tribal Area, which was given to respondent who was holding two domiciles at the time of admission---Validity---Any person could possess only one domicile at a time---Having two domiciles at the same time was an illegal act which fact was even made known to respondent when second domicile was issued to him---Respondent was dual domicile holder and in case a person who had two domiciles at a time then subsequent was to prevail---During existence of subsequent domicile, he was not entitled to get admission in medical college against one of the seats reserved for erstwhile Federally Administered Tribal Area students---High Court directed the authorities to cancel admission of respondent and petitioner be given admission as he was on merit next to respondent---Constitutional petition was allowed accordingly.

Muhammad Farooq Malik for Petitioner.

Omer Farooq, Addl. A.G. and M. Toufeeq Qureshi, D.A.G.

Qazi Muhammad Anwar, Abdul Munim, Naveed Akhtar, Sangeen Khan, Qaiser Hussain, Jahenzeb Mahsud and Noor Muhammad Khattak for Respondents.

2022 M L D 1287

[Peshawar]

Before Waqar Ahmad Seth, CJ and Musarrat Hilali, J

AYAZ-UL-HAQ---Appellant

Versus

STATE through NAB---Respondent

Eh. Criminal Appeal No.12-P of 2018, decided on 4th October, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9 & 10---Corruption and corrupt practice---Appreciation of evidence---Benefit of doubt---Accused was found allegedly involved in collection of money under the garb of Mudariba business and for the purpose lured people to handover their money on the promise that they would be given exorbitant profit, however such profit was stopped after few months and deprived the claimants of their hard earned savings---Witnesses had admitted at trial and had also been held by the trial Court in the impugned judgment that some of the mudariba nama were signed by the accused as "Wasi" a guarantor---However, while going through the record it was found that there was no undertaking by the accused that in case the principal accused failed to abide by the terms of the agreement, he would satisfy the claim of the complainants---Agreement between principal accused and the witnesses individually arrived and agreed upon certain terms of investment of an amount---Margin of the profit was also fixed by them---Agreed profit was paid to the witnesses for some months, the receipts whereof were exhibited in the Court and were available on the file---Accused, as per the statements of complainants, failed to pay the monthly profit and when the witnesses demanded their principal amount, there was no denial on the part of the accused, however, the matter was delayed on one pretext or another, whereafter complaints were made to NAB for the recovery of the amount---Allegations in the complaint and the documents placed on record by the complainants, if taken on their face value, did not disclose dishonest intention in the mind of the accused at the inception nor the act of cheating the complainants, having signed the mudaribanama---Ingredients of S.9(a)(ix)(x) of the National Accountability Ordinance, 1999, were not made out---Upon a fair and ordinary construction of the complaint the matter appeared to be of a civil matter rather than a criminal one---Mere violation of agreement/contract did not ipso facto attracted the definition of cheating and criminal breach of trust and would not attract the penal consequences---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575 rel.

Shahid Naseem Khan Chamkani for Appellant.

Syed Azeem Dad, ADPG for the State.

2022 M L D 1325

[Peshawar]

Before Lal Jan Khattak, J

SAJJAD AKBAR---Petitioner

Versus

The STATE through Advocate General Khyber Pakhtunkhwa, Peshawar and 3 others---Respondents

Criminal Revision No.50-P of 2021, decided on 27th September, 2021.

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

----S.540-A---Provision for inquiries and trial being held in the absence of accused in certain cases---Exemption from personal appearance---Scope---Accused assailed the dismissal of his application for exemption from personal appearance before the Court---Conduct of the accused and his father (who had appeared before the Court in his absence) showed that they had due regard for the Court and law---No doubt, twice accused had left the country without getting any permission from the Court but such non-appearance could not be taken like that of an absconder because he had left the country through legal means when he was on bail and had attended the Court for some time---Non-appearance of accused should have been condoned by granting him exemption from his personal appearance before particularly when not only his father was appearing before the Court but he was also represented before the Court by his counsel---Constitutional petition was allowed, in circumstances.

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

----S.540-A---Provision for inquiries and trial being held in the absence of accused in certain cases---Exemption from personal appearance---Single accused---Scope---Exemption under S. 540-A, Cr.P.C., from personal appearance can be granted only when there are two or more than two accused in the case and where the accused physically appears before the Court and claims exemption but in suitable cases exemption can be granted when there is single accused before the Court and even when he is not physically present before the Court at the time of claiming exemption.

PLD 2004 SC 160 ref.

Zulfiqar Ali for Petitioner.

Muhammad Inam Yousafzai, A.A.G. for the State.

2022 M L D 1439

[Peshawar]

Before Wiqar Ahmad, J

MUHAMMAD ZARIN---Petitioner

Versus

AMIR DIL KHAN and others---Respondents

Writ Petition No.381-M of 2020 with Interim Relief (N), decided on 27th January, 2022.

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

----O.XII, R. 6---Qanun-e-Shahadat (10 of 1984), Arts. 30 & 113---Deletion of certain mutation numbers from the title of the plaint---Suit for declaration, permanent injunction and possession was filed by the petitioner---Partial evidence was also recorded---During the pendency of the suit, respondents/defendants filed an application for deletion of 4 mutations from heading of the plaint for the reason that petitioner had earlier filed an application before the Court, wherein he had admitted that petitioner had rightly entered/attested the said mutations in favour of respondents, which application was accepted by the Trial Court vide the impugned order---Petitioner filed revision petition against the impugned order but the same was dismissed by the Revisional Court---Held, that in the pleadings/plaint, petitioner had not made admissions rather he had raised a challenge to the mutations mentioned therein---Respondent's application for deciding a matter on special oath had not been filed in pursuance to any agreement between the parties, rather the same was filed with a different intention---Admissions made in pleadings had wrongly been treated by the Courts below to be unqualified/absolute admissions sufficient to provide basis forgiving judgment at the preliminary stage of the case (before completion of evidence)---Court could require evidence regarding admission in its discretion under Art. 113 of the Qanun-e-Shahadat, 1984---Procedure adopted and powers utilized by Courts below for such deletion in pleadings of the parties, without their request, were alien to the Civil Procedure Code, 1908, hence, were not at all according to law---High Court allowed the Constitutional petition and referred the matter to the Trial Court with direction to decide the application along with the final conclusion of the suit.

Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171 and Zafar Ali v. Allah Bachavo PLD 1989 SC 294 rel.

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

----O.XII, R. 6---Qanun-e-Shahadat (10 of 1984), Arts. 30 & 113---Court had power to pass judgment on admissions but for returning such a judgment, the admission had to be clear, unambiguous, unqualified and unequivocal---Such admissions were also supposed to be read as a whole and not in piecemeal.

Mohsin Ali Khan for Petitioner.

Adil Khan Tahirkheli for Respondents Nos.1 to 4.

2022 M L D 1495

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

MUHAMMAD YOUSAF---Petitioner

Versus

HAMID FAROOQ KHAN and 5 others---Respondents

Civil Revision No.299-B of 2021, decided on 21st January, 2022.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.20---Pre-emptor and vendee---Division of property after pre-emptory decree/execution---Principle---Pre-emptory suit was dismissed, however, Trial Court held that pre-emptor was the co-owner along with vendee in Khasras and as such pre-emptor and vendee both had got equal right---Appellate Court decreed the pre-emptor's suit in toto---High Court partially allowed the appeal of the vendee holding that pre-emptor was shown to be co-sharer in certain Khasras, therefore, property to that extent was to be distributed/divided between pre-emptor and vendee---Executing court has directed the execution of the decree---Two mutations were attested in favour of decree-holder but prior to attestation of mutations in favour of decree-holder, he passed away; so the same were mutated in favour of legal heirs of decree-holder---Petitioner (one of the judgement-debtors) challenged one of the mutations being result of fraud but his plaint was concurrently rejected---Petitioner filed execution petition which was contested by the decree-holder but it was concurrently held maintainable---Respondents/decree-holders contended that the decreed property should be distributed between decree-holders and the judgment debtor in equal shares---Validity---Question was in respect to distribution of property through mutation which was attested on the basis of High Court's decision in favour of decree-holders; that admittedly, total Khata was the joint ownership of pre-emptor and the petitioner wherefrom 18 Kanals and 15 Marlas property was transferred in favour of vendees in equal shares; that after the decree was gotten by pre-emptor in his favour, the share of one of the vendees had to be transferred in favour of decree-holders, whereas to the extent of remaining 9 Kanals and 7-1/2 Marlas both the pre-emptor and vendee were co-sharers, therefore, the share of vendee (i.e. 9 Kanals and 7-1/2 Marlas) would be divided equally (which became 4 Kanals, 13 Marlas and 8 Sarsais); hence, from 18 Kanals and 15 Marlas of the disputed property to the extent of the said Khata, total entitlement of the decree-holders would be 14-Kanals, 1 Marla and 6-1/2 Sarsais---For equal division, it was sine qua non that both the pre-emptor and vendee were to fall within the same class with respect to their right of pre-emption only than the disputed property to the extent of their equal rights could be divided between them equally---Impugned mutation had rightly been attested (entitling the petitioner for 4 Kanal 13 Marla and 8-1/3 Sarsai and the preemptors 14 Kanal 1 Marla and 6-1/2 Sarsai)---Concurrent findings of Executing Court, however, in fresh execution proceedings were patently illegal, based upon wrong interpretation of S.20 of the Pre-emption Act, 1987---Petitioners' said execution petitions were dismissed---Revision petitions were disposed of accordingly.

Khan Gul Khan v. Daraz 2010 SCMR 539 and Faizullah Khan and other v. Haji Abdul Hakeem Khan 2011 SCMR 1802 rel.

Masood Iqbal Khattak for Petitioner.

Muhammad Shah Nawaz Khan Sikandari for Respondents.

2022 M L D 1517

[Peshawar]

Before Rooh-ul-Amin Khan and Ijaz Anwar, JJ

BAZ MUHAMMAD KHAN---Petitioner

Versus

The SP CHAMKANI, PESHAWAR and others---Respondents

Writ Petition No.3258-P of 2021, decided on 1st February, 2022.

Criminal Procedure Code (V of 1898)---

----Ss.22-A & 22-B---Constitution of Pakistan, Art.199---Constitutional petition---Frivolous proceedings--- Cost, imposition of---Petitioner was an employee of Sui Northern Gas Pipe Line Company who had already been proceeded against departmently for unauthorizedly lodging FIR against certain persons on the allegation of gas theft---Petitioner again filed complaint before Ex-officio Justice of Peace for registration of FIR regarding gas theft which complaint was dismissed---Validity---Only a designated Executive Engineer (Task Force) was authorized to lodge FIR in such matters---High Court observed that in numerous cases provisions of S.22-A, Cr.P.C. were misused and there were frivolous litigation in Courts which had become unstoppable and unnecessarily burdening Courts and wasting their precious time---High Court declined to interfere in the order passed by Ex-officio Justice of Peace---High Court in order to curb frivolous litigation, imposed cost on petitioner who had resorted to uncalled for litigation and abused the process of law---Constitutional petition was dismissed, in circumstances.

S.M. Sohail v. Mst. Sitara Kabir-ud-Din and others PLD 2009 SC 397; Azhar Iqbal and others v. Government of Pakistan and others PLD 2015 Isl. 140; Mst. Najma v. Mst. Farha Fehan 2007 SCMR 966; Chhetriya Pardushan Mukti Sangtrash Samitit v. State of U.P. AIR 1990 SC 2060; AIR 1984 SC 802; Ashok Kumar Pandey v. The State of West Bengal AIR 2004 SC 280 ref.

Khalid Mehmood and Malik Suleman Khan for Petitioner.

Arshad Ahmad Khan, A.A.G. for Official/Respondents.

Asad Jan for Respondents Nos.7 and 8.

2022 M L D 1529

[Peshawar]

Before Lal Jan Khattak and Ijaz Anwar, JJ

SHER AFZAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.738-P of 2018, decided on 20th May, 2021.

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

----S.9(c)---Possession of narcotics---Safe custody---Non-production of Moharrir (record-keeper)---Non-production of sample-bearer---Contradictory statements---Scope---Accused was alleged to have been found in possession of 1068, 955 and 977 grams of charas---Case record showed that the very chain of events starting from the crime spot to police station regarding the dispatch and safe custody in the police malkhana of representative samples was not proved which deficiency had dented the prosecution case---Case murasila was handed over to a constable wherein there was no mention that the case property and the representative samples were delivered to him for their handing over to Moharrir of police station---Likewise, Moharrir of the police station was not produced as witness to depose that he had kept the representative samples in safe custody before they were dispatched to Forensic Laboratory---Official who had taken the samples to Forensic Laboratory for their chemical analysis had not appeared for the prosecution as its witness---Safe custody of the case property and the representative samples was not proved by the prosecution---Besides there were other contradictions in the statement of prosecution witnesses which were not taken into consideration by the Trial Court---Prosecution had not proved its case against the accused through any cogent and reliable evidence---Appeal was allowed, the conviction and sentence recorded by the Trial Court was set aside, in circumstances.

(b) Criminal trial---

----Duty of prosecution---Scope---In order to connect an accused with the commission of an offence, the prosecution must produce concrete and confidence inspiring evidence connecting his neck with the alleged crime.

Ms. Zohra Durrani and Muhammad Qazzafi for Appellant.

Nisar Ahmad, A.A.G. for the State.

2022 M L D 1612

[Peshawar]

Before S M Attique Shah and Muhammad Faheem Wali, JJ

SULEMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.931-P of 2021, decided on 18th February, 2022.

(a) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----S.9(d)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that 7028 grams of charas was recovered from the motorcar driven by the accused, while co-accused was sitting on front seat of the said motorcar---Record showed that neither in the Murasila nor in the Forensic Science Laboratory Report, it had been mentioned that it was Charas Pukhta or Charas Garda---Likewise, the contents of Murasila revealed that samples were separated from the recovered contraband and sealed into parcels for sending it to Forensic Science Laboratory but neither number nor name of monogram affixed thereon had been mentioned in the Murasila---Though in recovery memo, the number of monogram had been written as 3/3 monograms but instead of mentioning the name of monogram, only a rubber stamp had been affixed therein; which did not denote any monogram---Besides, registration documents of the motorcar had allegedly been recovered from the motorcar in question but it had not been clarified that from which place of the motorcar, it was recovered and; who was owner of the vehicle as per the registration documents---Even no driving license had been recovered from the direct possession of the accused; so in absence of any driving license, it could not be stated with certainty that who was on driving seat of the motorcar at the relevant time, so mere disclosing the accused as driver of the vehicle was not sufficient qua corroboration of version of prosecution particularly when no recovery had been effected from the immediate possession of the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt to sustain conviction---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

(b) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----S.9(d)---Possession of narcotics---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Prosecution case was that 7028 grams of charas was recovered from the motorcar driven by the accused, while co-accused was sitting on front seat of the said motorcar---In the present case, the complainant and recovery witness appeared but both the said witnesses did not support each other on material points---According to complainant, he was Incharge of the Check Post at relevant time; while recovery witness did not know that who was the Incharge of the checking staff at that time---Complainant asserted that he opened the doors of the motorcar through screw driver brought by one Constable from the official vehicle; whereas recovery witness denied his version by stating that at the time of checking the motorcar, the screw driver was in the hand of complainant---Complainant stated that after recovery of contraband, the doors of the motorcar were refitted by a constable in presence of marginal witnesses; while recovery witness asserted that it was not refitted in his presence---According to complainant, he weighed the contraband separately but as per recovery witness, it was first weighed separately and thereafter, the entire packets of narcotic were weighed---As per assertion of complainant, the accused along with contraband and other documents were taken by Sub-Inspector and two Constables in the motorcar of accused (case property) to the Police Station; which deposition was belied by recovery witness by stating that official vehicle was taken along with motorcar of accused to the Police Station---Likewise, complainant stated that they affixed lights in the trees near the check post and also kept a torch; in the light of which they along with Investigating Officer conducted the proceedings on the spot but as per recovery witness, it was done in the light installed on the check post---However, Investigating Officer denied the assertions of both those witnesses by stating that in the lights of vehicles, the spot proceedings were conducted---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt to sustain conviction---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

(c) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----S.9(d)---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Possession of narcotics---Appreciation of evidence---Withholding material evidence---Scope---Prosecution case was that 7028 grams of charas was recovered from the motorcar driven by the accused, while co-accused was sitting on front seat of the said motorcar---Record showed that none from the three officials, who took the Murasila along with case property and accused to the Police Station, had been examined by the prosecution during trial in support of its case in order to explain the handing over of case property as well as its safe custody till the transmission to the Forensic Science Laboratory, for the reasons best known to them---Said fact was clear violation of provision of Art. 129(g) of Qanun-e-Shahadat, 1984, as the prosecution had withheld its best evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt to sustain conviction---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Shah Khesro and another v. The State and others 2016 PCr.LJ 06 rel.

(d) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----S.9(d)---Possession of narcotics---Appreciation of evidence---Chain of custody and safe transmission of narcotic to laboratory---Scope---Prosecution case was that 7028 grams of charas was recovered from the motorcar driven by the accused, while co-accused was sitting on front seat of the said motorcar---Alleged contraband had been sent to the Forensic Science Laboratory after delay of about two days---Said fact was evident from the report of Forensic Science Laboratory as well as statement of concerned Moharrir and the constable who took it to the Forensic Science Laboratory---Delay of two days in sending the samples to the Forensic Science Laboratory had also not been plausibly explained by the prosecution therefore, the evidence qua safe transmission of alleged recovered narcotics to the laboratory for chemical analysis was missing---Chain of custody or safe custody and safe transmission of narcotic drug began with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples and the narcotic drug with the law enforcement agency and then dispatching of the representative samples of the narcotic drugs to the office of Chemical Examiner for examination and testing---Any break or gap in the chain of custody, i.e. in the safe custody or safe transmission of the narcotic drug or its representative samples made the report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt to sustain conviction---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Qaiser Khan v. The State ?? SCMR 363 and Mst. Sakina Ramzan v. The State 2021 SCMR 451 rel.

(e) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----S.9(d)---Possession of narcotics---Appreciation of evidence---Presence of witnesses at the spot was doubtful---Scope---Prosecution case was that 7028 grams of charas was recovered from the motorcar driven by the accused, while co-accused was sitting on front seat of the said motorcar---Record showed that there were numerous material contradictions between the statements of prosecution witnesses, creating doubt qua mode and manner of recovery of contraband as well as presence of prosecution witnesses on the spot---Had they been present on the spot at the relevant time and recovered the contraband from the vehicle of accused in the mode and manner advanced by them, they would have supported each other on material points instead of contradicting each other---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt to sustain conviction---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

(f) Criminal trial---

----Benefit of doubt---Principle---In case of doubt, its benefit must go to the accused not as a matter of grace but of right.

Muhammad Akram v. The State 2009 SCMR 320 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

(g) Criminal trial---

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

Ms. Farhana Naz Marwat for Appellant.

Ms. Abida Safdar, A.A.G. for the State.

2022 M L D 1633

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmad and Kamran Hayat Miankhel, JJ

SAIF UL MALOOK and 13 others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner, Islamabad and 6 others---Respondents

Writ Petition No.367-A of 2022, decided on 22nd March, 2022.

Elections Act (XXXIII of 2017)---

----S.39---Election dispute---Electoral list---Correction---Notice non-issuance of---Grievance of petitioners was that their name was removed from voter list of one area to voter list of other---Petitioners contended that they were not informed or served with notice regarding change of their electoral area---Validity---Election Commission displayed provisional electoral list and also final electoral roll list in a very elaborate manner and also gave ample time for correction of electoral rolls---Petitioners slept over their right and after announcement of election schedule, they started exercise to get transfer their names from an electoral roll of one area to another electoral roll area---One should be vigilant about ones rights under general law---Right to vote and franchise was vested right and such right could not be taken in isolation because every right was a corresponding obligation---Petitioners before invoking such right were required to have fulfilled their obligation of applying to revising authority or registration officer at relevant time under the provisions of Elections Act, 2017---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Amanat Ali Khan Jadoon v. Election Commission of Pakistan and others (Writ Petition No.300-A of 2022) and Yousaf Ali v. Election Commission of Pakistan through Chief Election Commission and 4 others 2016 MLD 1881 rel.

Sajjad Ahmad Abbasi for Petitioners.

Mohsin Kamran for Respondents Nos.1 to 4.

2022 M L D 1673

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

DILABAZ KHAN and others---Petitioners

Versus

BALQIAZ and others---Respondents

Writ Petition No.No.876-B of 2021, decided on 31st May, 2022.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Specific Relief Act (I of 1877), Ss.42 & 54---Rejection of plaint---Documents of defendants---Factual controversy---Petitioners / plaintiffs filed suit seeking declaration and injunction on the ground that their predecessor-in-interest did not sell suit property---Trial court declined to reject the plaint but Lower Appellate Court in exercise of revisional jurisdiction rejected the plaint on the basis of documents produced by respondents / defendants with their pleadings---Validity---While considering application under O.VII, R.11, C.P.C., Court was to look into contents of plaint and documents appended and after considering the same should have applied its judicial mind to decide fate of application so submitted---Lower Appellate Court under no circumstances could travel beyond scope of relevant provision and prerequisites mentioned therein, as in such eventuality powers so exercise would yield injustice which had never been intent and purpose of law---High Court set aside order passed by Lower Appellate Court as matter before the Court, was purely of factual controversy and was not within the parameters laid down for rejection of plaint---Constitutional petition was allowed, in circumstances.

Jewan and others v. Federation of Pakistan through Secretary Revenue, Islamabad and others 1994 SCMR 826; Saleem Malik v. Pakistan Cricket Board and others PLD 2008 SC 650 and Mir Sahib Jan v. Janan 2011 SCMR 27 rel.

Farooq Khan Surrani for Petitioners.

Hafeez Ullah Khan for Respondents.

2022 M L D 1705

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar and Muhammad Ijaz Khan, JJ

ZIA ULLAH and 6 others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and 5 others---Respondents

Writ Petition No.990-M of 2019, decided on 24th May, 2022.

(a) Interpretation of statute---

----Meaning of words---Principle---When language of statue is clear then plain and ordinary meaning is to be given and same is to be read as it appears on the face of it.

Government of Khyber Pakhtunkhwa through Secretary Public Health Engineering, Peshawar and others v. Abdul Manan and others 2021 SCMR 1871 rel.

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

----S.18---Acquisition of land---Compensation---Reference, forwarding of---Delegation of powers---Petitioners were land owners and their grievance was that Additional Deputy Commissioner could not have decided the matter on behalf of Deputy Commissioner with regard to forwarding of References to Referee Court for enhancement of compensation---Validity---Authority or public functionary could delegate its function to any other person / officer if statue under which it was performing function, provided for delegation of such power--- In absence of such statutory delegation, authority / public functionary, was not competent to delegate its functions / powers--- Reference under Land Acquisition Act, 1894 filed by land owners / objectors was to be dealt with by Collector itself or by an officer who was appointed by Board of Revenue or Commissioner to act as Collector of a district---Collector under no circumstances could entrust a Reference to any other person / officer to deal with it as his delegatee---Collector was not legally authorized to delegate his functions to Additional Deputy Commissioner, to deal with Reference of petitioners as under Land Acquisition Act 1894, he was not bestowed upon with such power of delegation of his functions to any other person or officer---High Court declared all proceedings conducted and orders passed by Additional Deputy Commissioner, as illegal, unlawful and ineffective upon rights of petitioners---High Court remanded the matter to Collector for decision afresh after hearing the petitioners---Constitutional petition was allowed accordingly.

Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Haji Ghulam Zamin and another v. A.B. Khondkar and others PLD 1965 Dacca 156; Shell Pakistan Limited PLD 2015 Isl. 36; Federation of Pakistan through Ministry of Defence and 2 others v. Muhammad Khan and another PLD 1991 SC(AJ&K) 33 and Mayapati and another v. The State of Haryana and others AIR 1973 Punjab and Haryana 356 ref.

Hazrat Rehman for Petitioners.

2022 M L D 1835

[Peshawar]

Before Ijaz Anwar and Syed Arshad Ali, JJ

DURRE SHEHWAR---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman Headquarter NAB and 3 others---Respondents

Writ Petition No.2924-P of 2012 with IR, decided on 24th December, 2021.

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

----Ss.6(b), 26 & 34-A---Constitution of Pakistan, Art. 199---Constitutional petition---Delegation of powers---Pardon, grant of---Petitioner was accused facing trial before Accountability Court, who was aggrieved of grant of pardon by Director General NAB (National Accountability Bureau) to two accused persons---Plea raised by petitioner was that such power could not be delegated by Chairman NAB---Validity---Chairman NAB under Ss.6(b)(iv) & 34-A of National Accountability Ordinance, 1999, could delegate his authority/power to any officer of NAB---Such delegation was notified through notification dated 30-10-2015, whereby under S.26 of National Accountability Ordinance, 1999, power to tender pardon was delegated to DG Operations NAB HQ and DGs Regional NAB with certain conditions---High Court declined to interfere in Authority exercised by Director General granting pardon to two witnesses as the same was intra vires---Constitutional petition was dismissed, in circumstances.

2019 SCMR 846 rel.

(b) Interpretation of statutes---

----Object and purpose of a statute---Determination--- Statute is passed as a whole and not in sections and it may well be assumed to be animated by one general purpose and intent---Process of etymological dissection cannot be adopted---Words cannot be taken out of their context and applying definitions given by lexicographers cannot proceed to construe the statute on the basis of such definitions---Parliamentary enactments must be construed as a whole and their meaning attributed to words should as general rule be inspired by the context and nature and object of subject matter, for the words may be enlarged or restricted to harmonize with the provisions of statute.

N.S. Bindra, The Interpretation of Statutes an G.C. Act, 4th edn, p-33 rel.

(c) Interpretation of statutes---

----Intention of Legislature---Rule of ex vise-ceribus actus---Applicability---In order to discover intention of Legislature, enactment should be read as a whole---Such general rule of construction is applicable to all statutes alike, is spoken of as construction ex vise-ceribus actus, i.e. within the four corners of the Act---Such rule of construction has frequently been recognized and acted upon by Courts of law from Coke's time down to the present day.

M. Farani, The Interpretation of Statutes, chapter 4, p-54; Craies, Statute Law, p-98 and Sultana Begum v. Prem Chand Jain AIR 1997 Supreme Court 1006 rel.

Qazi Jawad Ehsanullah for Petitioner.

Muhammad Riaz Mohmand, ADPG for Respondents.

2022 M L D 1879

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

MUZAFAR-UL-MULK KHAN and others---Appellant

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Works and Service Department and others---Respondents

R.F.A. No.34-M with C.M 945 of 2016, R.F.A. 39-M of 2016 with C.M. 612 of 2016(N) and Cross Objection No.2-M of 2016 in R.F.A. No.39 of 2016, decided on 21st April, 2022.

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

----S.23---Constitution of Pakistan, Art.24---Property rights---Acquiring of land---Market value---Determining factors--- Scope--- While determining market value of acquired land through compulsory acquisition process, fundamental right of land owners as enshrined in Art. 24 of the Constitution has been made subservient to Land Acquisition Act, 1894--- Through such process, a citizen has been pushed to a disadvantageous position--- With such background of transaction, land owner has every right that he / they may be compensated on the basis of phenomenon of "gold for gold and not copper for gold".

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

----Ss.18 & 23---Acquisition of land---Compensation---Market value, determining of---Land owners were dissatisfied with compensation announced for their lands by authorities as well as by Trial Court---Contention of land owners was that their land had high potential value as the same was situated on main road and its market value was not less than Rupees 700/- per sq-ft---Validity---Revenue authorities and Trial Court based their decision/judgment on existing potentiality of acquired land---Factors of its future potentiality was totally ignored and as such on face of record, they erred in determining market value of acquired land---While determining market value of acquired land, multiple factors including its location, existing potentiality, proximity to road or any commercial building and over and above its future prospects had to be considered---Both the forums below did not properly fix market value of acquired land---No material was available on record on the basis of which Trial Court fixed Rupees 300/- per sq-ft, as the whole evidence either spoke of Rupees 700/- per sq-ft, or at least of Rupees 500/- per sq-ft--- Location of acquired land was 100 meters from main Swat-Kalam Road and there existed commercial buildings including petrol pumps, markets, shops---High Court by applying such yardstick modified order of Trial Court by enhancing compensation of acquired land from Rupees 300/- per sq-ft to Rupees 500/-per sq-ft along with 15% compulsory acquisition charges---Appeal was allowed accordingly.

Sarhad Development Authority N.W.F.P. (Now KPK) throueh COO/CEO (Officio) and others v. Nawab Ali Khan and others 2020 SCMR 265; Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75; Land Acquisition Collector, G.S.C., N.T.D.C., (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28; Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Mst. Bibi Shah Ban (deceased) through L.Rs. and others v. Land Acquisition Collector, A.C., Mardan and others 2019 SCMR 599; Collector Land Acquisition, Haripur and another v. Col. Sardar Ahmad Yar Jang Durrani and another 2021 CLC 255 and Government of Pakistan through Military Estate Officer Abbottabad and another v. Ghulam Murtaza and others 2016 SCMR 1141 rel.

Gauhar Ali Khan for Appellant.

Alam Khan Adenzai, Asstt: A.G. for the Official Respondents.

Hafiz Bakht Amin for Petitioner (in Cross Objection No.2-M of 2016).

2022 M L D 1929

[Peshawar]

Before Qaiser Rashid Khan, CJ

SHAHEEN BIBI---Petitioner

Versus

JEHANZEB and 7 others---Respondents

Writ Petition No.2235-P of 2019, decided on 31st March, 2022.

Family Courts Act (XXXV of 1964)---

----S.5---Limitation Act (IX of 1908), Art. 108---Recovery of prompt dower---Limitation---Concurrent findings of two Courts below---Petitioner / plaintiff sought recovery of jewelry and house given to her as dower, from her in-laws---Validity---Limitation for filing suit for recovery of prompt dower was three years under Islamic Law from the date when the same was demanded and refused--- In case of no such demand during continuance of marriage till its dissolution either by death or divorce was made, then Art. 103 of Limitation Act, 1908, would come into play, which also provided for three years limitation time--- Petitioner / plaintiff handed over gold ornaments to wife of her brother-in-law at the time of his marriage---Petitioner / plaintiff did not have any proof in such regard nor she had lodged any report---Petitioner / plaintiff could have filed suit for recovery against wife of her brother-in-law, if at all she was denying to return gold ornaments to her---No family suit could be filed against in-laws of petitioner / plaintiff having no concern with her alleged dower---High Court declined to interfere in judgments and decrees passed by two Courts below as no misreading or non-reading was committed nor there was any jurisdictional error---Constitutional petition was dismissed, in circumstances. [pp. 1932, 1933] A, B & C

Muhammadan Law ref.

Shakeel Ahmad (Hastnagri) for Petitioner.

Muhammad Sareer Khan for Respondents.

2022 M L D 1992

[Peshawar]

Before Lal Jan Khattak and Musarrat Hilali, JJ

MOMIN KHAN alias MOMINAY---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.815-P of 2021, decided on 8th February, 2022.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotics---Report of result of test or analysis---Appreciation of evidence---Benefit of doubt---Contradictory statements---Safe custody---Scope---Accused was alleged to have been found in possession of 4000 grams of charas---No malice or mala fide was apparent on the part of prosecution witnesses to falsely implicate the accused but the way they had contradicted each other was suggestive of the fact that either one or the other was not present on the spot at the relevant time and the occurrence had not taken place in the mode and manner as furnished by the prosecution---Report of Forensic Laboratory was in positive but the same was not reliable for the reason that neither the chain of sending the representative samples to Moharrir from the spot was established nor the report of Forensic Laboratory carried requisite protocols---Appeal was allowed, conviction and sentences recorded by the Trial Court were set aside.

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

----S.9---Possession of narcotics---Safe custody---Any break in the chain of safe custody or lapse in the control of possession of the sample or lack of full protocols with respect to the tests applied for, render a positive report Forensic Laboratory unreliable.

(c) Criminal trial---

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

Ms. Shabina Noor for Appellant.

Muhammad Inam Yousafzai, Addl. A.G. for the State.

2022 M L D 2011

[Peshawar]

Before Syed Arshad Ali, J

Malik RIAZ ULLAH---Petitioner

Versus

Mst. BILAWAR JAN and others---Respondents

Writ Petition No.2039-P of 2015, decided on 25th January, 2021.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.VI, R.17---Amendment of pleadings---Scope---Principle---Petitioner/plaintiff was aggrieved of dismissal of his application seeking amendment in his plaint---Validity---Amendment in pleadings could be allowed at any stage of proceedings for narrowing down real controversy between parties---Even inconsistent plea could be allowed to be raised in pleading if it could co-exist with initial plea of plaintiff---High Court set aside orders passed by two Courts below and allowed petitioner to amend his pleadings in terms of his application for amendment which he filed before Trial Court---Constitutional petition was allowed accordingly.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Haji Sultan Abdul Majeed v. Mst. Shamim Akhtar 2018 SCMR 82; Muhammad Fayyaz v. Hafiz Liaqat Ali and 5 others 2020 CLC 1184; Gul Roz and another v. Sargand and others 2003 CLC 116; Mst. Maryam Begum and 5 others vs. Riaz Muhammad 2005 SCMR 1945; Mian Awdal v. Muhammad Jan Khan and 4 others 2009 CLC 40; Muhammad Siddique v. Abdul Rauf and 10 others 2012 CLC 1734; Tasawar Hussain v. Mst. Farzana Kausar and others PLD 2015 Lah. 208; Syed Raza Abbas v. Mst. Sana Saeed Sattar and 2 others 2015 YLR 489; Fazlur Rehman v. Mst. Shazia Bibi and 2 others 2015 CLC 116; Muhammad Essa v. Mst. Haseena Begum through legal heirs 1989 SCMR 476; State of Haryana and others v. Ch. Bhajan Lal and 2 others 1994 SCMR 593; Ch. Muhammad Aslam Khan through Legal Heirs and others v. Malik Sher and others 1994 SCMR 1637; Imtiaz Ahmad's case PLD 1963 SC 382 and Nazir Hussain Rizvi v. Zahoor Ahmad PLD 2005 SC 787 ref.

Qazi Jawad Ehsanullah for Petitioner.

Muhammad Shoaib Khan, Abdul Sattar Khan, Jehanzeb Khan Muhammadzai and Gohar Ali Kheweshgi for Respondents.

2022 M L D 143

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

MUHAMMAD HANIF and 6 others---Petitioners

Versus

Syed ZAKIR HUSSAIN SHAH and 8 others---Respondents

C.P. No.1388 of 2019, decided on 15th October, 2020.

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

----Ss.42, 45 & 53---Constitutional petition---Mutation---Petitioners contended that petitioners were recorded owners of the properties; they also owned possession of shamilat land; that father of respondents taking benefit of the predecessor-in-interest of the petitioners got the properties recorded in his name as lathband buzgars at the time of settlement regarding unsettled lands---Senior Member Board of Revenue accepted Revision petition of respondents (impugned order) and directed the Deputy Commissioner/Collector for disposal---Validity---Order sheet revealed that neither any summons was served upon petitioner, nor ex-parte proceeding had been initiated, and petitioner was not heard---Senior Member Board of Revenue had no jurisdiction to directly entertain any revision after lapse of longstanding entries i.e. 34 years---No order was passed by subordinate Commissioner/Deputy Commissioner---Respondents jumped over more than two lower forums---Respondents themselves disputed the title of the properties and Revenue Court lacked jurisdiction in matter whereby title was to be determined---Respondents concealed the civil suit and appeal before High Court from the Senior Member, hence, did not go before Revenue hierarchy with clean hands---Impugned order was in derogation of Ss.45 & 53 of the Balochistan Land Revenue Act, 1967---High Court set aside the impugned order and quashed the proceeding before Deputy Commissioner---Constitutional petition was accepted accordingly.

(b) Balochistan Land Revenue Act (XVII of 1967)---

----Ss.42, 43, 45 & 53---No disputed entry in Record of Rights or periodical record could be altered, either on the ground of mistake or fraud, except on the basis of obvious clerical error or patent facts, requiring no elaborate inquiry for their establishment---Disputed entries having been incorporated in the Revenue Record could only be corrected through decree of Court and not by order of any of the official in the hierarchy of revenue authorities, particularly after the lapse of more than five decades.

Waris Khan v. Col. Humayun Shah PLD 1994 SC 336; Rasta Mal Khan v. Nabi Sarwar Khan 1996 SCMR 78 and Nemat Ali v. Malik Habibullah 2004 SCMR 604 rel.

(c) Balochistan Land Revenue Act (XVII of 1967)---

----S.42---Mutation---Dispute pertaining to the title of property---Only civil court had jurisdiction to make decision to the effect---Disputed question of fact regarding title could not be decided by the Revenue Officer/Revenue Court by way of mutation proceedings which were summary in nature.

Muhammad Amir Rana, Zarghoona Barreach and Jalil-ur-Rehman Kakar for Petitioners.

Syed Mumtaz Hussain Baqri for Respondents Nos.1 to 4.

Khalil-ul-Zaman Alizai, Additional Advocate General ("AAG") for Respondents Nos.5 to 9.

2022 M L D 379

[Balochistan]

Before Abdul Hameed Baloch, J

MUHAMMAD YOUNAS---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.283 of 2020, decided on 6th February, 2021.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody and transmission of samples of the narcotic from the police to the chemical examiner was not established---Effect---Allegation against the accused was that three kilograms of charas was recovered from the possession of the accused---Forensic Science Laboratory Report depicted that samples of alleged contraband were received through a Constable---Prosecution was bound to establish safe custody of the recovered substance as to where the alleged material was kept and that samples, taken from the recovered substance were safely transmitted to the office of Chemical Examiner---Statement of constable who took the samples was not recorded by the prosecution---Circumstances suggested that the prosecution had failed to prove the chain---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Witness---Credibility of---Scope---For disbelieving the statement of a witness, it was not necessary that there should be numerous infirmities---If there was one which impeached the credibility of witness then it lost its credibility.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Allegation against the accused was that three kilograms of charas was recovered from the possession of the accused---Record revealed that the FIR was registered on 24th July, 2020, wherein the recovery witness stated that the accused was searched on 27th July, 2020 and Fard-e-Biyan was prepared in the light of vehicle and torch---Police witness stated that the alleged contraband material was handed over to him on 27th July, 2020, whereas the complainant stated that the accused was arrested on 26th July, 2020 and documents were prepared in the light of bulb of hotel---Said contradictions in the statements of prosecution witnesses could not be lightly ignored---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.

Minhaj Khan v The State 2019 SCMR 326 rel.

Muzafar Umrani for Appellant.

Ms. Shumaila Iftikhar, State Counsel.

2022 M L D 516

[Balochistan]

Before Rozi Khan Barrech, J

BAZ MUHAMMAD KAKAR ---Petitioner

Versus

Syed ABDUL RASHEED and another---Respondents

Civil Revision No.409 of 2020, decided on 10th September, 2021.

Civil Procedure Code (V of 1908)---

----O.XVII, R.3---Trial Court closed petitioner's right to produce evidence---Appellate Court remanded the case with costs---Petitioner, having contumacious conduct, failed to comply with the directions of appellate Court, thus his suit was dismissed by Trial Court---Held, that petitioner was awarded several opportunities as per the direction of High Court, but he once again failed to comply with the said direction---Petitioner did not show his seriousness and delayed the matter, and also did not appear before High Court after filing present petition---Law had provided a mechanism which was to be followed and either party had to suffer the consequences in case of non-compliance thereof---Petitioner's conduct did not warrant any concession, and his conduct denied him the right to claim equity when he had not come to the equitable court with clean hands---No illegality/perversity in the impugned judgments had been pointed out---Revision petition was dismissed accordingly.

Moon Enterpriser CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another 2020 SCMR 300 rel.

Khalil Ahmed Panezai for Petitioner (Absent).

None present for Respondents.

2022 M L D 536

[Balochistan]

Before Abdul Hameed Baloch, J

HAJI MUHAMMAD ---Applicant

Versus

AMMER MUHAMMAD and another---Respondents

Criminal Bail Cancellation No.232 of 2020, decided on 24th August, 2020.

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

----S.497(5)---Bail, cancellation of---Principle---Principle for granting bail and those for cancellation of bail were altogether different---Strong and cogent reasons required for recalling of bail granting order.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 324, 504, 506, 427, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, criminal intimidation, mischief causing damage to the amount of fifty rupees, rioting, rioting armed with deadly weapon, unlawful assembly---Petition for cancellation of bail, dismissal of---Prosecution case was that two groups were fighting with each other and one group made firing upon opposite group, due to which one person died while two were injured---Motive was alleged to be the landed dispute between the parties---Record showed that the complainant was unable to put forth any settled principle governing the cancellation of bail---Application for cancellation of bail was dismissed accordingly.

Arif Din v. Amil Khan 2005 SCMR 1402; Nasir Muhammad Wassan v. The State 1992 SCMR 501; Jan Muhammad v. The State 1990 SCMR 320; Inamullah v. Qudratullah alias Qudrati 2014 MLD 1425; Sardar Munir Ahmed Dogar v. The State PLD 2004 Kar. 822; Muhammad Azhar v. Dilawar 2009 SCMR 1202 and Sobharo v. Zameer 2012 PCr.LJ 1722 ref.

Sobharo v. Zameer 2012 PCr.LJ 1722 and Muhammad Azhar v. Dilawar 2009 SCMR 1202 rel.

Khalil Ahmed Panezai for Applicant.

Tariq Ali Tahir for Respondent No.1.

Abdul Mateen, Deputy Prosecutor General for the State.

2022 M L D 543

[Balochistan]

Before Abdul Hameed Baloch, J

NASIR KHAN---Petitioner

Versus

SHABIR AHMED---Respondent

Civil Revision No.612 of 2021, decided on 20th October, 2021.

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

----S.12(2) & O.XXXVII, R.2---Suit for recovery of amount---Parties appeared before Court---Suit was dismissed for non-prosecution and the same was restored---Application of the petitioner/defendant for leave to defend was dismissed and suit was decreed---Petitioner filed application under S.12(2) of Civil Procedure Code, 1908, which was dismissed---Question whether provisions of S.12(2) could be invoked in a contested case---Validity---Record reflected that on notice the petitioner / defendant appeared before court, filed application for leave to defend and argued the matter through counsel and thereafter Trial Court decided the case---Unsuccessful party which appeared and contested the suit could not resort to the provision of S.12(2) of Civil Procedure Code, 1908 to impugn the decision---Allowing such application would mean to give a party an opportunity to attack/impugn the decision before the same Court---Revision petition was dismissed in limine.

Tanveer Siddique v. Muhammad Rashid 2010 YLR 1851 rel.

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

----S.12(2)---Fraud/misrepresentation---Proceeding being out of knowledge or decree passed by collusion---Proof---Section 12(2) of Civil Procedure Code, 1908 provided a remedy to a person affected by a decree obtained by fraud and misrepresentation---Party had to prove the fraud/misrepresentation committed against him was out of knowledge or with collusion with any person(s), as to prevent the affected person to place his case before the court during proceedings in defence.

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

----S.12(2)---Appellate/revisionary jurisdiction not to be substituted---Scope---Provision of S.12(2) could not be used as an alternative for ordinary remedy of appeal/revision. [p. 546] E

Sahibzada Nusrat Hussain Khan Afghani for Petitioner.

2022 M L D 563

[Balochistan]

Before Abdul Hameed Baloch, J

Syed GULISTAN---Petitioner

Versus

GULAB KHAN and 2 others---Respondents

Civil Revision No.136 of 2020, decided on 2nd July, 2021.

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

----Ss. 42, 8 & 54---Suit for declaration, possession and permanent injunction---Sale of un-partitioned Shamilat Deh---Scope---Plaintiff filed a suit for declaration, possession and permanent injunction against the defendants---Contention of defendants was that the suit land was Shamilat Deh; that each co-sharer of the property of the village had right and entitlement of proportionate share in accordance with Hasb-e-Haqiat-Aab and that all the co-sharers were necessary party to be arrayed in the suit---Contention of plaintiff was that he had purchased the property in question---Validity---Plaintiff had not mentioned in the plaint from whom he had purchased the property and how much consideration was paid---Where the party had not alleged any ground in pleadings, subsequent evidence had no legal value---Parties were bound by their pleadings and evidence beyond the pleadings could not be considered---Record reflected that the suit property was Shamilat Deh and ownership of village people---No person could transfer the land to other without partition---If any such transaction including gift without consultation of other owners of Shamilat Deh was carried out, the same was violative of the condition laid down in Wajib-ul-Arz---No title or ownership could be conferred upon the plaintiff through the decree---Revision petition, being devoid of merit, was dismissed.

Muhammad Tariq's case PLD 2011 SC 151; Firdos Khan v. Zain Muhammad 2011 MLD 521; Sher Afghan v. Muhammad Rafique 2012 CLC 1803; Muhammad Rasheed alias Muhammad Rafiq v. Muhammad Mushtaq Khan 2016 CLC 1485; Raja Asmatullah Khan v. Qudratullah and another 2014 SCR 1537 and Khalid Hussain and 3 others v. Haji Muhammad Rafique and another 2008 CLC 1737 rel.

(b) Pleadings---

----Evidence beyond pleadings---Scope---Where the party has not alleged any ground in pleadings, subsequent evidence has no legal value---Parties are bound by their pleadings and evidence beyond the pleadings cannot be considered.

Muhammad Tariq's case PLD 2011 SC 151 rel.

Kashif Kakar for Petitioner.

Abdul Musawir, Syed Manzoor Shah for Respondent No.1-A.

Khalil-ur-Zaman, Additional Advocate General for Official, Respondents.

2022 M L D 630

[Balochistan]

Before Abdullah Baloch, J

EID MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.57 of 2019, decided on 27th July, 2020.

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

----Ss.3 & 4---Prevention of illegal dispossession of property---Cognizance of offence---Accused not belonging to qabza mafia---Dispute of civil nature---Scope---Accused was alleged to have illegally dispossessed the complainant from his land and started cultivation thereon---Complainant had not alleged that the accused belonged to qabza Mafia or he was a land grabber---Contents of the complaint were silent to the effect that why the complainant had kept mum for a period of four years after his illegal dispossession---Mode of dispossession was also not mentioned in the complaint---Long standing possession of accused was enough to hold that the accused did not belong to the class of property grabbers or qabza group---No case under S.3 of Illegal Dispossession Act, 2005, was made out rather it appeared that the matter between the parties pertained to a dispute of civil nature---Appeal against conviction was accepted, in circumstances.

Amroze Khan v. Motaser Khan and others 2013 MLD 1564 rel.

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

----Ss.3 & 4---Prevention of illegal dispossession of property---Cognizance of offence---Scope---Main object and purpose of promulgation of the Illegal Dispossession Act, 2005, is to curb the activities of the property grabbers---Illegal Dispossession Act, 2005, applies only to dispossession from immovable properties by property grabbers/land mafia---Illegal Dispossession Act, 2005, does not apply to the cases of dispossession by ordinary persons who cannot, by any stretch of imagination, be termed as land grabbers/land mafia/qabza group---Such disputes include disputes over possession of immovable properties between co-owners or co-shares, between landlord and tenants, between persons claiming possession on the basis of inheritance, between persons claiming to be the owners of the land on the basis of title documents in their favour or cases with a background of an ongoing private dispute over the relevant property.

Amroze Khan v. Motaser Khan and others 2013 MLD 1564 rel.

Abdul Wahab Buledi, Nisar Ahmed Alizai and Muhammad Naeem Khan Khilji for Appellant.

Abdul Karim Malghani, State Counsel.

2022 M L D 738

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

JANNAT BIBI and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.233 and 237 of 2020, decided on 9th March, 2021.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Scope---Accused were charged for committing murder of the son of the complainant by firing---Record showed that prosecution to establish the charge, had produced the evidence of seven witnesses, perusal of which reflected that the said evidence was circumstantial evidence, which was not sufficient to hold the accused persons responsible for the murder of deceased, as the same were lacking independent corroboration---According to complainant, at the time of occurrence, he was present in his house when he was informed that his son was murdered by means of firing---Said witness had failed to mention the name of person who informed him on phone about the occurrence---Contents of FIR divulged that the complainant had not placed him suspicion upon the accused as assailant, however, after lapse of about 12 days, complainant nominated accused through supplementary statement---Complainant in the said supplementary statement, had failed to mention the source of information through which he had come to know about the assailants---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---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---Benefit of doubt---Delay of about twelve days in nominating accused---Scope---Accused were charged for committing murder of the son of the complainant by firing---Contents of fard-e-bayan, supplementary statement as well as the statements of both the witnesses showed that the accused had been nominated in the case absolutely on the basis of presumptions, assumption and consultation---Statement of witnesses showed that soon after the occurrence, they reached at the place of occurrence and the police was also present over there and in the meantime the accused took the responsibility of murder of deceased and also threatened the said witness for murder---Question arose that as to why the accused was not nominated in the FIR when more particularly the witness knew the assailant of his deceased brother---Even otherwise, after registration of FIR, said witness kept mum and on 12th day of the occurrence the accused were nominated in the crime---Subsequent nomination of the accused in the crime was nothing but was the result of deliberation and consultation as well as based upon presumptions and assumptions, which could not sustain in the eyes of law---Accused could not be convicted on the basis of mere suspicion howsoever strong it may be---Appeal against conviction was allowed, in circumstances.

Naseeb-ur-Rehman v. Muqarab Khan and another 2013 MLD 836 rel.

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

----Ss.302(b) & 34---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Extra judicial confession and the confessional statements of the accused---Scope---Accused were charged for committing murder of the son of the complainant by firing---In the present case, the extra judicial confession and the confessional statements of the accused persons appeared to be untrustworthy---Extra judicial confession of the accused was recorded and on the sixth day of such disclosures their confessional statements were recorded---Now question arose that if the accused recorded their disclosures then why they were not produced on the said date before the concerned Judicial Magistrate for recording their confessional statements---High Court observed that in order to eliminate any sort of doubt, the Investigating Officer ought to have got recorded such confessional statements on the said date, but it was not done so---Even otherwise, both the disclosures and confessional statements were not corroborating other evidence---Accused, on the following day of recording the alleged confessional statements, through their counsel approached the Trial Court through application under S.22-A(6)(II), Cr.P.C. and apprised the situation that the accused were tortured, but the said applications were rejected by the Trial Court---Element of torture to the accused during investigation could not be ruled out of consideration---Both the confessional and the extra judicial confessional statements of the accused were also not helpful to the case of prosecution, because the same were not corroborated by any other piece of evidence---Appeal against conviction was allowed, in circumstances.

Muhammad Yousaf v. The State 1995 SCMR 351 and Umar Hayat v. The State 2020 YLR 1398 rel.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon used in the offence, but medical evidence itself does not constitute any corroboration qua the identity of accused persons to prove their culpability.

(e) Criminal trial---

----Benefit of doubt---Principle---If any single or slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to disbelieve the prosecution story and acquit the accused.

Sarwar Khan Kakar for Appellant (in Criminal Appeal No.233 of 2020) and Soorat Khan Khetran for Appellant (in Criminal Appeal No.237 of 2020).

Mrs. Noor Jahan Kahoor, Additional P.G. for the State.

2022 M L D 780

[Balochistan]

Before Abdul Hameed Baloch, J

SULTAN ALI---Petitioner

Versus

Mir SHABIR AHMED BADINI and 2 others---Respondents

Civil Revision No.245 of 2020, decided on 12th April, 2021.

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

----O.XXXVII, R.4---Summary suit for recovery---Power to set aside decree---Scope---Order XXXVII, R.4, C.P.C., confers power on the court to set aside the decree under special circumstances and grant defendant leave to appear and defend the suit---Rule 4 applies where the defendant fails to appear and file application for leave to defend---Special circumstances must exist to support any application for setting aside decree---Rule 4 has three separate parts : Opening sentence states that after decree is passed, under special circumstances the court can set it aside; court can exercise the power where special circumstances exist; R.4 excludes ordinary circumstance or circumstances which may happen every day---Heavy burden is laid on the defendant to show the circumstances which had arisen due to which he was unable to appear.

Haji Ali Khan and Company v. Allied Bank of Pakistan PLD 1995 SC 362 and Allied Bank of Pakistan Ltd. v. V.C. Khilnani PLD 1984 Kar. 127 rel.

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

----O.XXXVII, R.4---Limitation Act (IX of 1908), Arts. 181 & 164---Summary suit for recovery---Power to set aside decree---Scope---Order XXXVII, R.4, C.P.C., takes out the provision of limitation with the power of the court of setting aside the decree---Said section lays down condition of showing of special circumstances for setting aside the decree---Application is, therefore, to be made under Art.181 of the Limitation Act, 1908, instead of Art. 164 of Limitation Act, 1908.

Binyameen Khalil's case 2014 CLC 105 rel.

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

----S.115---Revision---Conversion of proceeding---Scope---High Court while exercising revisional jurisdiction is empowered to convert one proceeding to another.

Registrar, High Court of Balochistan v. Abdul Maieed PLD 2013 [Bal.] 26 and Rashida v. Ghous-ud-Din 2016 CLC 533 ref.

Manzoor Shah, Abdul Jabbar and Farah Farooq Kasi for Petitioner.

Abdul Rashid Awan for Respondents.

2022 M L D 805

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

ABDUL BARI---Petitioner

Versus

AKHTAR RASHEED, STATION HOUSE OFFICER, POLICE STATION AIRPORT, QUETTA and 5 others---Respondents

R.F.A. No.89 of 2015, decided on 7th December, 2020.

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

----Ss.3, 8 & 12---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for defamation/damages against Police Officer for circulation of false statement/representation---Essentials---Rejection of plaint---Scope---Suit was dismissed by Trial Court---Validity---No estimation and clear calculation had been given by the appellant as to how and which act of the defendant caused financial loss, mental agony and defamation to the appellant which was not clear by the appellant in his plaint/suit---Report submitted by the police officials before the competent court of law did not come within the definition of "defamation"---No disclosure in plaint as to on which words/actions of the respondents petitioner/plaintiff received mental agony and defamation which disrepute him in public at large or to his friends and relatives---Appellant/plaintiff had not complied with the mandatory requirements of Rr. 2 & 4 of O.VI of C.P.C.---Legal notice was given to the SHO of police station with a delay of more than eleven months---Plaint did not disclose any cause of action---No date/month had been mentioned in plaint as to where/when the respondents caused financial loss and before whom reputation was disrepute and damaged---Suit appeared to be barred by limitation, so plaint should have to be rejected under O.VII, R.11 of C.P.C---Impugned judgment of the Trial Court had rightly been passed---Appeal was dismissed accordingly.

Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741 ref.

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

----O.VII, R.11---Rejection of Plaint---Scope---For deciding the question of rejection of plaint, only the plaint and its accompaniments could be examined.

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

----O.VII, R.11---Rejection of Plaint---Scope---Object of R.11 of O.VII, C.P.C. was primarily to save the parties from rigours of frivolous litigation at the very inception of the proceedings, and if the Court on the basis of averments made in the plaint and documents available, concluded that even if all the allegations made in the plaint were proved, the plaintiff would not be entitled to the relief claimed, the Court would be justified in rejecting the plaint in the exercise of powers available under R.11 of O.VII, C.P.C.

Pakistan Agriculture Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371 rel.

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

----S.12---Limitation Act (IX of 1908), S.3---Special law---Applicability---Scope---Defamation Ordinance, 2002 is a special law which has prescribed limitation (six months since publication of the documentary material/matter) for filing suit for defamation and Limitation Act, 1908 does not apply in defamation cases.

Muhammad Usman Yousafzai for Appellant.

Miss Rubina Mohsin for Respondents Nos.1 to 4.

2022 M L D 908

[Balochistan]

Before Rozi Khan Barrech, J

ALI AHMED and 2 others---Petitioners

Versus

GHULAM MUSTAFA and others---Respondents

Civil Revision No.87 of 2020, decided on 31st December, 2020.

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

----S.24---Transfer of case---Bias of Judge---Types of bias listed.

Pakistan Newspaper Society and others v. Federation of Pakistan PLD 2012 SC 1 ref.

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

----S.24---Transfer of case---Grounds---Bias of Judge---Assumption / apprehension of party---Scope---Petitioners (applicants under S.24, C.P.C, 1908) sought transfer of case on the basis of alleged statement/utterance made by the opposing side that they would get favour from the Court---Held, that contention of the petitioner did not constitute sufficient ground for transfer of case as they had failed to establish the bias in judge which was not supported by any sort of evidence or some act or expression of judge visible on ground adversely affecting the case---Mere assumption and apprehension could not be entertained as a tangible evidence, therefore, a mere statement could not be made basis for transfer of case---Case would not be transferred as a matter of routine or at the whims of the parties---No illegality or infirmity was found in the impugned order passed by the Appellate Court rejecting application of petitioners to transfer their civil suit to another civil court---Revision petition was dismissed, in circumstances.

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

----S.24---Application for transfer of a case---Scope---Litigants should have confidence in the judicial system---Although application for transfer of a case could be filed but (only) when a party had sufficient reasons, grounds and evidence in his/her possession regarding pecuniary interest, bias of judicial officer etc.

Nasratullah, Attorney for Petitioners in person.

Khalil Ahmed Panezai for Respondents.

2022 M L D 961

[Balochistan]

Before Abdul Hameed Baloch, J

MUHAMMAD ZAMAN and others---Appellants

Versus

HAMEEDULLAH and others---Respondents

F.A.O. Nos.24 to 26 of 2020, decided on 15th September, 2021.

(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Ejectment application for 3 shops was filed by the Landlord/appellant on grounds of wilful default and personal bona fide need---Respondent (tenant) contested the application on ground that neither the appellant was owner of property nor respondent had ever been inducted as tenant of appellant; that another person was actual owner of the shops in question; that respondents were employees of said another person; and that he (the other person) filed suit for correction of mutation entries---Eviction application was dismissed by Rent Controller---Validity---Record transpired that the appellant produced rent agreements and produced marginal witnesses who confirmed the factum of rent agreements---Oath Commissioner produced the rent agreements---Appellant also produced halqa Patwari who produced record showing that appellant, his mother and sisters were owners of the land in question---Respondents neither produced any sale deed in order to confirm the factum of sale/purchase in favour of said other person---Mere bald assertion could not rebut the document---Respondents' witnesses admitted in cross-examination that the suit land was still in the name of appellant in the revenue record---Respondents had no other capacity for retaining possession than as tenant---Pendency of suit for specific performance of the agreement was no ground to avoid eviction of the tenant by the Rent Controller---Law did not impose any embargo on landlord to establish any business but sole testimony of landlord was sufficient to establish personal bona fide need---Appeal was accepted accordingly.

Allah Yar and others v. Additional District Judge and others 1984 SCMR 741; Mian Muhammad Abdullah v. District Judge Sahiwal and others PLD 1985 Lah. 467; Mst. Bor Bibi v. Abdul Qadir 1996 SCMR 877 and Bakht Zamin Shah v. Faiz Muhammad Khan 2003 CLC 1121 ref.

(b) Balochistan Land Revenue Act (XVII of 1967)---

----S.42 & 52---Mutation entries are not title documents, however, carry presumption of truth.

(c) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.2(b)---Civil Procedure Code (V of 1908), S.9---Ejectment proceeding---Title/ownership of property---Jurisdiction---Rent Controller was not a Civil Judge and was not mandated by the law to determine the question of title/ownership of property assuming the role of Civil Judge.

Ahmed Ali alias Ali Ahmed v. Nasar-ud-Din PLD 2009 SC 453 rel.

(d) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.2(c), 2(i) & 13---Relationship between landlord and tenant---Determination of---Ownership may not always be determining factor to establish the relationship of landlord and tenant between the parties.

Shajjar Islam v. Muhammad Saddique PLD 2007 SC 45 rel.

(e) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Specific Relief Act (I of 1877), S.42---Mere pendency of suit for specific performance by itself is no ground to hold that there was no relationship of landlord and tenant.

(f) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Relationship of landlord and tenant, denial of---Possession, delivery of---Condition precedent---Tenant is first of all bound to deliver the possession of the premises in question, then to contest his proprietary right in the suit property.

Abdul Rasheed v. Maqbool Ahmed 2011 SCMR 320 rel.

Mian Badar Munir for Appellants.

Haeedullah Achakzai for Respondents.

2022 M L D 990

[Balochistan]

Before Rozi Khan Barrech, J

SANAULLAH---Petitioner

Versus

STATION HOUSE OFFICER POLICE STATION NUSHKI and 3 others---Respondents

C.P. No.457 of 2020, decided on 12th June, 2020.

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

----Ss.22-A, 22-B & 155---Penal Code (XLV of 1860), Ss. 427 & 504---Powers of Ex-officio Justice of Peace---Scope---Information in non-cognizable cases---Intentional insult with intent to provoke breach of peace---Scope---Petitioner assailed order passed by Ex-officio Justice of Peace whereby SHO was directed to place complaint of petitioner before the Magistrate---Allegations levelled in the complaint, prima facie, attracted Ss. 504 & 427, P.P.C., which as per Column 3, Chapter XXII of Sched. II to the Criminal Procedure Code, 1898 were, non-cognizable offences---Station House Officer of Police Station was required under S.155(1), Cr.P.C., to enter the substance of such information in the relevant book kept at the police station and refer the informant to the Magistrate---Constitutional petition was dismissed, in circumstances.

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

----S.155---Information in non-cognizable cases---Scope---Section 155, Cr.P.C., provided that for recording information relating to commission of non-cognizable offence a book is prescribed known as "Roznamcha or Station Diary", in which information relating to commission of non-cognizable offence is entered---Generally police would not initiate any action and the complainant or informant, after having a copy of the said report is sent away, and if, the Station House Officer (SHO) deems it fit to initiate investigation then under subsection (2) of S.155, Cr.P.C., police has to take permission of the Magistrate---Section 155(2), Cr.P.C., requiring order of a Magistrate for investigation of a non-cognizable offence is mandatory in nature, if any arrest is to be made then it can only be made after obtaining warrant of arrest from the Magistrate as required under S.155(3), Cr.P.C.

Syed Saleem Akhtar for Petitioner.

2022 M L D 1151

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdullah Baloch, JJ

GUL MARJAN---Petitioner

Versus

DEPUTY COMMISSIONER LORALAI---Respondent

C.P. No.157 of 2020, decided on 31st August, 2020.

Constitution of Pakistan---

----Art.199---Constitutional petition---Constitutional petition filed against the order passed by Deputy Commission whereby he ordered for cancellation of arms licence, CNIC, local certificate of petitioner and his family members---Record showed that the Deputy Commissioner granted permission to the petitioner for holding public procession vide order dated 7th February, 2020---Suddenly, on next day, Deputy Commissioner cancelled the permission, which, prima-facie, reflected that the same was not conveyed to the concerned people, thus, procession/rally was conducted on 8th February, 2020 resultantly FIR under Ss. 153, 153-A, 283, 342, 34, P.P.C. & 188 Cr.P.C. was lodged against the petitioner and others---Another FIR was also lodged against the petitioner and others under Ss.224, 225, 353, 186, 504, 506 & 34, P.P.C. read with S. 7 Anti-Terrorism Act, 1999 on 9th February, 2020, meaning thereby that whatsoever had allegedly been committed by the petitioner and others, the law was taken into motion and accordingly FIRs had been lodged against the petitioner and others, which could have serve the purpose for offences allegedly committed by the petitioner---Held, subsequent actions taken by the respondent/Deputy Commissioner seemed to be result of mala fide and ulterior motives contrary to Fundamental Rights of citizens protected under the Constitution---Deputy Commissioner was neither competent to cancel the Arms licence of the petitioner, which was issued by the Ministry of Interior nor he was competent to cancel the CNIC of the petitioner, which was issued by NADRA nor he was competent to freeze the Bank Account of the petitioner as well as to cancel the local certificate of the petitioner and his family members without issuing any notice to the petitioner---All the actions taken by the Deputy Commissioner were violative of relevant laws and the Constitution---Perusal of record made it clear that Deputy Commissioner had passed the impugned orders in a slipshod, cursory and thoughtlessly manner without application of his judicial mind---Thus, orders passed by the Deputy Commissioner were without lawful authority based upon mis-exercise of authority and were malicious in nature---Constitutional petition was allowed by setting aside the impugned orders passed by the Deputy Commissioner and all the documents were restored in its original position.

Sultan Muhammad Kakar, Barkhurdar Khan and Wali Khan Mandokhail for Petitioners.

Shai Haq Baloch and Khalil-uz-Zaman Alizai, Additional Advocate General and Muhammad Younas Mengal, Additional Prosecutor General for the State.

2022 M L D 1346

[Balochistan (Sibi Bench)]

Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ

BADAR-UD-DIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(S)06 of 2021, decided on 14th April, 2021.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Presence of eyewitnesses at the place of occurrence was justifiable---Scope---Accused was charged that he along with his co-accused committed the murder of brother of the complainant and also injured the witness---Record showed that FIR was lodged within twenty-five minutes of the occurrence and the accused, along with the absconding accused were specifically nominated therein---Complainant and two eyewitnesses had furnished ocular account of the incident---Said witnesses attributed the role of firing to the accused and absconding accused---Eyewitnesses gave a consistent and straightforward ocular account of the occurrence---Despite extensive and lengthy cross-examination, nothing was brought on record, which might significantly demonstrate that the said eye-witness account was false or their presence at the scene of the crime was doubtful or distrustful---Presence of the said witnesses on the spot was also proved and the name of the witnesses were also mentioned in the promptly lodged FIR without any delay---Investigation Officer had recorded the statement of another witness under S.161, Cr.P.C., after the occurrence---Said witnesses gave a plausible explanation for their presence at the spot at the relevant time---Injured witness also supported the prosecution witnesses, since he sustained injuries on his person and was immediately taken to the hospital where Medical Officer prepared his injury sheet and he was shifted to hospital for further treatment---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of doubt---Appeal against conviction was dismissed accordingly.

Abdul Rauf and others v. Mehdi Hassan and others 2006 SCMR 1106 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Related and interested witnesses---Scope---Accused was charged that he along with co-accused committed the murder of brother of the complainant, and also injured the witness---In the present case, defence objected that only interested witnesses were produced by the prosecution and the case of the prosecution lacked independent corroboration---Held, mere relation of witnesses with the deceased was no ground to discard their testimonies, if their evidence was found entirely independent and truthful, therefore, their testimony, without looking for any other corroborative evidence, would alone be sufficient to establish the charge---Evidence of related witnesses who were not found inimical and were confidence-inspiring would hardly need any corroboration---Complainant was the brother of the deceased and injured and eyewitness were relatives of the complainant---Being a close relative of the deceased, the said witnesses were subjected to lengthy cross-examination, but nothing advantageous was brought, rendering the case of the accused inconsistent---No serious enmity, whatsoever, was alleged against them and besides that being the real brother and cousins of the deceased, the question of substitution of the real culprits with that of the accused did not arise, which otherwise was a rare phenomena---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account and medical evidence---Corroboration---Accused was charged that he along with co-accused committed the murder of brother of the complainant and also injured the witness---Medical evidence was in complete harmony with the ocular testimony of eyewitnesses---No conflict could be pointed out to create a dent in the prosecution case---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of crime empties and weapon of offence---Scope---Accused was charged that he along with co-accused committed the murder of brother of the complainant and also injured the witness---Six bullet empties of T.T pistol were taken into possession by the Investigation Officer from the place of occurrence---Investigating Officer also took the blood-stained earth and clothes of the deceased and the injured through recovery memo in the presence of witnesses---Investigating Officer arrested the accused and on his pointation the crime weapon, i.e. T.T pistol was recovered from his house and the same was taken into possession through recovery memo in the presence of the witnesses---Investigating Officer sent parcel of the bullet empties and parcel of the crime weapon to the firearm expert and obtained a positive report---Investigating Officer also obtained a positive report regarding blood-stained clothes and blood stained earth of the injured and the deceased---Testimony of the eyewitnesses had been corroborated with the recovery of bullet empties, crime weapon, blood-stained earth and blood-stained garments of the deceased and injured and positive report from the Forensic Science Laboratory and Firearm Expert---Said recoveries had been duly proved through recovery witnesses---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of doubt---Appeal against conviction was dismissed accordingly.

Muhammad Jameel for Appellant.

Jameel Akhtar Gajani, APG for the State.

2022 M L D 1356

[Balochistan]

Before Abdul Hameed Baloch, J

GHULAM MUSTAFA---Petitioner

Versus

MUHAMMAD AYOUB and others---Respondents

Civil Revision No.02 of 2019, decided on 16th April, 2021.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), S.47---Suit for cancellation of document, declaration and injunction---Execution of decree---Principle---Failure to execute decree---Petitioner/judgment debtor was aggrieved of order issued by Executing Court to hand over vacant possession of suit property or price of land to legal heirs of deceased decree holder---Validity---Executing Court only was competent under S.47, C.P.C., to execute decree as it was but had no authority to go behind the decree---Decree had attained finality and it was to be executed accordingly---Decree could be enforced by any of the modes authorized by Civil Procedure Code, 1908---Executing Court was to provide assistance to decree holder for execution of decree---Executing Court while executing decree had to determine how and in what manner decree was to be executed---Technicalities were not be hurdle in way of execution of decree---Petitioner/judgment debtor failed to point out any illegality in orders passed by two Courts below---Revision was dismissed, in circumstances.

Jameela Pir Bukhsh v. Appellate Authority, 2003 SCMR 1524; Wards v. Maharajah Coomar Ramaput Singh 14 MIA 605 = 17 WR 459 = 10 BLRPC 294 = 2 Suth. PCJ 575 = 3 Sar. PCJ 117; Venkappa's case; AIR 1956 Hyd. 7; Muhammad Hussain Shah's case PLD 1943 (sic) Lah. 166; Muhammad Naeem's case 2013 MLD 9741(sic); Ahmed Murtaza v. Naseera Fatima Sughra 2021 CLC 400 and Allied Bank Limited v. Messrs Fazal Vegetable Ghee Mills and others 2019 CLD 441 rel.

Habib-ur-Rehman for Petitioner.

Obaid-ur-Rehman, Attorney for Respondent No.1 to 7 and 9.

Shahid Javed Nagi for Respondents Nos.10 to 13.

Miss Shakar Bibi for Respondents Nos.8-A to 8-E and Saifullah Sanjrani, Additional Advocate General.

2022 M L D 1547

[Balochistan]

Before Abdullah Baloch, J

GHULAM QADIR and others---Petitioners

Versus

JAM ALI AKBAR and others---Respondents

Civil Revision No.33 of 2019, decided on 3rd November, 2021.

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

----Arts.117, 118 & 122---Limitation Act (IX of 1908), Art. 3---Mutation entries---Suit for declaration, possession, cancellation---Petitioners/plaintiffs claimed that they were owners in possession of the suit land since 1908; that prior to that their ancestors used to cultivate the land as settlers; that respondents occupied the same with collusion of police and evicted the petitioners; that revenue record was not transferred in favour of the petitioners---Suit was concurrently dismissed---Validity---Statements of the petitioners and witnesses produced by petitioners were contradictory to each other on material count of the case i.e. regarding possession, ownership, entries in revenue records, etc.---Record transpired that the settlement of land was completed in 1969 whereby all the record of right was recorded in the name of respondents and nowhere the name of petitioners was assigned to ascertain their ownership---Record also showed that petitioners were aware of revenue record, but did not raise any objection till filing of the present suit before any forum for correction of revenue record---Suit was barred by time for 37 years---Petitioners had failed to prove their ownership, possession, dispossession from the property---Revenue record since year of settlement in 1969 was in the names of respondents---Heavy burden was upon the petitioners to prove their affirmative case of ownership through cogent/reliable evidence and they were to stand on their own legs to succeed and could not avail benefits of any weakness in case of opposite party---Even if the case was remanded, no fruitful purpose could be served because the suit was hit by law of limitation---Revision petition was dismissed accordingly.

United Bank Limited and others v. Noor-un-Nisa and others 2015 SCMR 380; Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 and Syed Malang Shah v. Umar Shah 1998 SCMR 656 rel.

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

----O.XLI, R.31---Point for determination, non-framing of---Scope---If appellate Court had not framed points for determination in a case, judgment of such Court would not be liable to be set aside on such ground alone---Such act of appellate Court would become immaterial when all the raised questions have been answered by the appellate Court.

Ahsan Rafique Rana for Petitioners.

Mujeeb-ur-Rehmand Baloch, Illahi Bakhsh Mengal and Sagheer Ahmed Baloch for Respondents.

Malik Azeem, Assistant A.G. for the State.

2022 M L D 1570

[Balochistan]

Before Abdul Hameed Baloch, J

NASEER AHMED---Petitioner

Versus

The STATE---Respondent

Criminal Revision No.15 of 2021, decided on 31st March, 2021.

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

----Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Examination of accused---Scope---Application by accused for amending his statement under S.342, Cr.P.C., was rejected---Scope---Record transpired that after closure of prosecution witnesses, the accused were examined under Ss. 342 & 340(2), Cr.P.C. and defence witnesses produced by them were also examined---Complainant, thereafter filed an application under S.540, Cr.P.C. for calling inquiry report, which was allowed and the court witness produced the inquiry report---Complainant filed another application for amendment in the statement under S.342, Cr.P.C. of accused, which was rejected---Validity---Record revealed that the complainant, after recording of the statements of accused under Ss. 342 & 340(2), Cr.P.C and defence witnesses, filed an application under S.540, Cr.P.C, for calling inquiry report, which was allowed---Statement of the representative of the concerned Department was recorded, who produced inquiry report---Court had power under S.540, Cr.P.C to summon material witnesses at any stage of proceeding, examine any person or recall or re-examine any person already examined---Trial Court had examined Section Officer, PHE Department, who produced the inquiry report---Said witness appeared and recorded his statement as witness---Order of accepting the application under S.540, Cr.P.C, for producing the inquiry report by the representative of PHE Department had not been challenged---Purpose of examining of accused was to enable him/them to explain any circumstances appearing in evidence against him---On allowing the application under S.540, Cr.P.C, the witness was examined, who produced certain documents---Under S. 342, Cr.P.C, the accused was allowed to explain his position in regard of evidence produced after recording his statement under S. 342, Cr.P.C.---Plain reading of S.342, Cr.P.C, showed no restriction to record the statement of accused after producing defence evidence---Even after closing the prosecution and defence side, the accused had a right to explain his position---Petition was allowed by setting aside impugned order and Trial Court was directed to re-examine the accused under S.342, Cr.P.C., by making question in respect of inquiry report.

2020 SCMR 321; 2007 MLD 599; Muhammad Shah v. State 2010 SCMR 1009; 2010 YLR 914 and PLD 2013 Sindh 214 ref.

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

----S.342---Examination of accused---Scope---Section 342, Cr.P.C, mandated that all incriminating evidence was to be put to accused---Purpose of enactment of S. 342, Cr.P.C, was to safeguard the interest of accused, enable him to explain the circumstances appearing against him in the evidence---Purpose of the provision was to enable the court to decide the question of guilt of accused---Object of referred section was that the attention of accused should be drawn to the evidence on which the prosecution claimed that the case was made out against the accused---All the incriminating pieces of evidence available on record in examination-in-chief, cross-examination or re-examination of witnesses, were required to be put on accused, while recording his statement under S. 342, Cr.P.C.

Muhammad Shah v. State 2010 SCMR 1009 rel.

Amir Lehri for Petitioner.

Syed Ayaz Zahoor for Private Respondents.

Wajahat Ghaznavi for the State.

2022 M L D 1589

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

MUHAMMAD ARIF and others---Petitioners

Versus

The STATE through Prosecutor General Balochistan, Quetta---Respondent

Criminal Revision No.44 of 2020, decided on 21st December, 2020.

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

----Ss. 337-A(i), 337-F(i), 337-L(2) & 34---Shajjah-i-khafifah, ghayr-jaifah, damiyah, causing hurt and common intention---Appreciation of evidence---Prosecution case was that the accused armed with sticks attacked upon the complainant and his daughter and both of them received injuries---Record showed that the challan of case was submitted before the Judicial Magistrate, who tried the case and accused petitioners were convicted---Cross case was submitted before the Sessions Court which was tried and accused were acquitted---Complainant of said cross case filed acquittal appeal, which was partly allowed and case was remanded to the Trial Court---Trial in both the cases should have been conducted side by side by the Trial Court, as in such like cases, the prime question was the determination of aggressor and aggressed upon---Such a question could not be determined without analysis of the evidence of both the cases---Trial Court without conducting a trial in case under Ss. 324 & 34, P.P.C., had dealt with the trial of the petitioners in a haphazard manner and recorded their conviction and sentence, which exercise undertaken by the Trial Court was against the general practice in cases of counter versions---True that the Code of Criminal Procedure, 1898 was silent with regard to procedure to be adopted in the trial of counter cases, arising out of the same incident and it had not been laid down anywhere in the Code of Criminal Procedure, 1898 as an absolute rule that all charges and counter-charges must be tried by the same court, however, it was a salutary practice that two criminal cases relating to the same incident were to be tried and disposed of by the same court by pronouncing judgments on the same day---Practical reasons for adopting such procedure was nothing but to staves off the danger of an accused being convicted before his whole case was before the court---To deter conflicting judgments being delivered upon similar facts and in reality, the case and the counter case were to all intend and purposes different or conflicting versions of one incident and finally to determine the question as to who was the aggressor and who was aggressed upon---Petition was partly accepted, in circumstances and by setting aside the impugned judgments and the case was remanded to the Additional Sessions Judge for decision afresh.

(b) Criminal trial---

----Cross-versions---Scope---Counter cases would be tried side by side by the same court till their conclusion and judgments are to be pronounced simultaneously. [p. 1593] B

Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 rel.

Syed Ayaz Zahoor for Petitioners.

Muhammad Younus Mengal, Assistant Prosecutor General ("APG"). for the State.

2022 M L D 1598

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

Dr. MUHAMMAD ARIF---Appellant

Versus

MUHAMMAD ANWAR and 3 others---Respondents

Criminal Acquittal Appeal No.461 of 2019, decided on 21st December, 2020.

Penal Code (XLV of 1860)---

----Ss.324 & 34---Criminal Procedure Code (V of 1898), S.265-K---Attempt to commit qatl-i-amd, common intention---Power of court to acquit accused at any stage---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Prosecution case was that the accused persons attempted to cause injury to the brother of complainant and when the complainant tried to rescue him, the accused persons made firing at him, due to which, he received a bullet injury---Acquittal order showed that the Trial Court had given the findings on the report of Medical Board, despite the fact that no evidence had been recorded---Trial Court acquitted the accused on the basis of the report of Medical Board---Medical Certificate issued by Medical Officer in favour of victim was bogus and fabricated one as no injury was caused by firearm to the victim and it was self-inflicted simple injury---Trial Court, in circumstances, would have examined the doctors in that behalf and then would have turned its conclusion as to whether the medical opinion issued by the Medical Board was rightly issued or it was a forged document---Question mark existed on the authenticity of the Medical Board and the Trial Court without considering the authenticity of the Medical Board acted in a haphazard manner---Medical certificate issued by the Police Surgeon in favour of complainant or subsequent constitution of the Medical Board the authenticity whereof at that stage could not be ascertained without recording evidence---Trial Court was not to make or express adverse remarks and observations relating to the antecedents, credibility and reliability of the medical certificate issued by the Police Surgeon and subsequently constitution of the Medical Board; in that manner, it was found that the appellant had been condemned unheard---Law favoured the disposal of cases on merits---Both the parties be provided opportunity to prove their versions by producing evidence---Duty of the court was not only to protect innocent but also to punish the guilty---Circumstances established that no fair opportunity was provided to the prosecution to prove its version by producing evidence---Appeal against acquittal was partly allowed and the case was remanded to the Trial Court accordingly.

The State through Advocate General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 rel.

Syed Ayaz Zahoor for Appellant.

Ahsan Rafique Rana for Respondent No.3.

Muhammad Younus Mengal, Assistant Prosecutor General ("APG") for the State.

2022 M L D 1664

[Balochistan]

Before Muhammad Kamran Mulakhail and Rozi Khan Barrech, JJ

SUI SOUTHERN GAS COMPANY LTD., REGIONAL OFFICE and others---Appellant

Versus

MUHAMMAD RAHIM and others---Respondents

Criminal Acquittal Appeals Nos.333, 334, 335, 336, 337 and 338 of 2021, decided on 30th September, 2021.

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

----S.5---Criminal Procedure Code (V of 1898), S.154---Powers of the Gas Utility Court---Filing of complaint---Lodging of FIR---Scope---Offences punishable under the Gas (Theft Control and Recovery) Act, 2016, are non-cognizable in nature, thus the only course provided by S.5 is to file a complaint before the Gas Utility Court---Registration of FIR for offending the provisions of the Act would be mala fide and coated with ulterior motive.

(b) Words and phrases---

----'Notwithstanding'---Expression 'Notwithstanding anything to the contrary contained in this Act'---Connotation.

Word 'Notwithstanding' which in legal parlance is known as 'Non obstante clause', inherently connotes and denotes a meaning which gives an overriding effect, wherever the same is used, it employs an implied expression of a prohibited degree of an action. Similarly when a phrasal expression stipulates that 'Notwithstanding anything to the contrary contained in this Act', any law or for that matter, the present one, any departure from their expressed and implied stipulation tantamount to a clear deviation from a mandatory provision of law---Thus, in no case is permissible to stay or sustain.

(c) Administration of justice---

----When a law requires anything to be done in a particular manner, it should be done in that manner and not otherwise.

(d) Constitution of Pakistan---

----Arts. 199 & 4---Constitutional jurisdiction---Right of individuals to be dealt in accordance with law---Scope---Such is an inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law---Where the law provides a specific procedure or mechanism intended to be undertaken against a person by any forum either judicial, quasi-judicial or executive, if, the said action is patently illegal or against the mandate of law on the subject, specially the express provisions and the implied spirit of a statute, which if allowed to stay intact, would tantamount to/and would cause serious breach of the legal rights of a citizen, the High Court under its constitutional jurisdiction can come for his rescue.

Muhammad Anwar and others v. Mst. Ilyas Begum and others' PLD 2013 SC 255 rel.

(e) Administration of justice---

----Justice should prevail, no matter if the heaven falls.

Tahir Ali Baloch for Appellants.

2022 M L D 1701

[Balochistan (Sibi Bench)]

Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ

HAMEEDULLAH---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.(s)06 and Criminal Appeal No.(s)18 of 2021, decided on 11th February, 2021.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Delay of two hours in lodging the FIR---Effect---Prosecution case was that 300 kilograms of charas was recovered from the vehicle driven by the accused---Complainant lodged the report on the same day after an unexplained delay of two hours---Said delay raised eyebrows qua veracity of the case and signal towards consultation, concoction, inducement and procurement on the part of the prosecution.

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

----S.9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Chemical analysis---Delay of ten days in sending samples of contraband for analysis---Effect---Prosecution case was that 300 kilograms of charas was recovered from the vehicle driven by accused---Prosecution's case was that the samples were transmitted to the office of Forensic Science Laboratory but the safe custody and transmission could not be proved by the prosecution because according to Forensic Science Laboratory Report the samples of charas were received through Sub-Inspector with delay of ten days---Such delay had not been explained---Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, provided that said exercise was required to be completed within 72 hours of the recovery---No plausible explanation was brought on record by the prosecution as to why such inordinate delay was caused in the completion of said exercise by the Investigating Officer---Said fact was fatal to the prosecution case---Prosecution had also failed to examine the constable who had taken the sample to the Chemical Examiner, so that he could have been cross-examined on the point as to in whose custody the sealed parcel of the samples of charas were lying about ten days---Prosecution also did not produce the Head Mohrar of the police station about keeping the parcels in Malkhana---Investigating Officer also did not state anything as to when he handed over the parcels to the Head Mohrar, who allegedly kept the same in the Malkhana in safe custody for ten days---Said fact made the case doubtful and any doubt if arose in the links of the chain of prosecution story, the benefit of the same would go to the accused---Prosecution, in circumstances, could not prove prompt registration of the FIR and safe custody and transmission of the representative samples to Government Analyst, thus, the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Aslam v. The State 2011 SCMR 820 and Shamsullah v. The State 2013 MLD 1527 and Mst. Razia Sultana and others v. The State 2019 SCMR 1300 rel.

Misbah Hameed for Appellant.

Jameel Akhtar Gajani, APG for the State.

2022 C L C 1716

[Balochistan (Sibi Bench)]

Before Abdul Hameed Baloch, J

JAHANGIR KHAN----Petitioner

Versus

The STATE through Prosecutor General Balochistan----Respondent

Criminal Revision Petition No.(s)29 of 2020, decided on 28th December, 2020.

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

----S.412---Criminal Procedure Code (V of 1898), S. 227---Dishonestly receiving stolen property---Application for alteration of charge and transfer of the case to the court of Judicial Magistrate was rejected---Validity---Mere recovery of stolen vehicle did not attract S.412, P.P.C.---Prosecution would prove that the accused had a knowledge that the vehicle in question was used for commission of offence---Mere registration of FIR under S.392/34, P.P.C., in the other Province against unknown person did not ipso facto prove that the accused had the knowledge---Mere possession of stolen vehicle did not attract S.412, P.P.C.---When the court, during trial would find that the case was triable by the inferior court, then the court could transfer the case to such court---Rule of prudence/propriety demanded that where the two courts having concurrent jurisdiction then the case be tried by the court of inferior jurisdiction---Petition, in circumstances, was allowed by High Court by setting aside the impugned order---Section 412, P.P.C. was altered to S.411, P.P.C. and case was ordered to be transferred to the court of Judicial Magistrate for trial.

Malik Zafar Yousaf v. State PLD 2002 Lah 84 rel.

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

----S.227---Alteration of charge---Scope---Under S.227, Cr.P.C the Trial Court was empowered to alter the charge at any time either on application or on its own---Charge once framed, would not become irreversible, even the court could alter the charge before pronouncement of judgment.

Muhammad Jameel Azeem v. Ghulam Shabeer 2011 SCMR 1145 rel.

Tahir Ali Baloch and Samad Khan Mandokhail for Petitioner.

Younas Mengal, DPG for the State.

2022 M L D 1773

[Balochistan]

Before Abdul Hameed Baloch, J

Syed SAJJAD ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.31 of 2021, decided on 29th January, 2021.

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---Unseen occurrence---Delayed identification parade---Confession to police officer---Fingerprint matching, negative report of---Effect---Complainant had got registered an FIR regarding an un-witnessed murder of his son against known persons---Investigating Officer had secured fingerprints from doors of the vehicle belonging to the deceased---Accused was arrested and on his disclosure co-accused was arrested---Co-accused had admitted committing the murder along with accused and another---Identification parade was conducted wherein accused had identified the co-accused---Meanwhile, report of fingerprints was obtained which had not matched with the fingerprints of accused---Accused had already disclosed about the identity of co-accused to the police---Identification parade was conducted where the witness had seen the glimpse of accused during commission of offence but in the present case, identification parade was conducted wherein one accused had identified the other accused which was not permissible---Prosecution had conducted the identification parade after more than fourteen days---Bail application, of the accused was allowed, in circumstances.

Sohail v. The State 2014 PCr.LJ 1215 and Muhammad Faisal's 2020 SCMR 971 rel.

Syed Ayaz Zahoor, Asif Reki, Khushi Muhammad and Sahibzada Mirwais for Applicant.

Wajahat Ghaznavi and Saeed Khan, State Counsel.

2022 M L D 1845

[Balochistan (Sibi Bench)]

Before Zaheer-ud-Din Kakar, J

Sheikh ABDUL AZIZ---Applicant

Versus

The STATE---Complainant

Criminal Bail Before Arrest Application No.(s)27 of 2022, decided on 29th March, 2022.

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

----S.498---Penal Code (XLV of 1860), Ss. 435, 506, 147, 148 & 149---Mischief by fire or explosive substance with intent to cause damage, criminal intimidation, rioting, armed with deadly weapon, common object---Pre-arrest bail, grant of---Delayed FIR---Counter-blast FIR---Scope---Prosecution case was that the accused along with others while armed with pistol set the machinery of a coal company on fire by use of petrol---No specific role was attributed to the accused---First Information Report was lodged with an unexplained delay of 20 hours whereas distance between the police station and place of occurrence was 03 kilometers---Prior to the present FIR, the accused had got lodged an FIR against labourers of the coal company regarding damage caused to machinery, setting the coal mines on fire, firing which resulted in the death of a driver and causing injuries to the company manager---Prima facie, instant FIR seemed to be counterblast just to save their skin from FIR lodged by the accused---Case of accused fell within the ambit of S.497(2), Cr.P.C.---Petition for grant of pre-arrest bail was accepted.

Khair Muhammad and another v. The State through P.G Punjab and another 2021 SCMR 130 ref.

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

----S.498---Pre-arrest bail---Direct application to High Court---Scope---Normally a person against whom a case has been registered, at the first instance, may approach the original court having jurisdiction i.e. Sessions/Additional Sessions Judge in the matter of bail before arrest, because propriety so demands, but it is not an absolute rule as depending upon the compelling circumstances of each case a person can approach directly to the High Court by invoking its concurrent jurisdiction.

The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Rafiq Ahmed Jilani v. The State 1995 PCr.LJ 785; Shamrez Khan v. The State 1999 PCr.LJ 74 and Rais Wazir Ahmed v. The State 2004 SCMR 1167 ref.

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

----S.498---Pre-arrest bail---Scope---Concept of pre-arrest bail is an exceptional and extra-ordinary relief, as such restricted to cases, which are the result of trumped-up charges---In order to get relief, applicant has to establish that the registration of case is the outcome of mala fide and ulterior motives, and if the desired relief is not extended to him, he would certainly suffer irreparable loss to his reputation---Relief of pre-arrest bail is a shield to protect innocent persons qua highhandedness of individuals or authorities through false, motivated and malicious prosecution---While granting pre-arrest bail, apart from the element of mala fide and ulterior motives, the merits of the case can also be touched upon.

Khair Muhammad and another v. The State through P.G Punjab and another 2021 SCMR 130 and Meeran Bakhsh v. The State and another PLD 1989 SC 347 ref.

Inayat Marghazani for Applicant.

Amjad Khan Achakzai for the Complainant.

Muhammad Naeem Kakar, APG for the State.

2022 M L D 1910

[Balochistan]

Before Zaheer ud Din Kakar and Muhammad Aamir Nawaz Rana, JJ

NOOR KHAN ---Petitioner

Versus

SHER KHAN and 11 others---Respondents

Constitution Petition No.1113 of 2022, decided on 2nd August, 2022.

Civil Procedure Code (V of 1908)---

----S.12(2), O.VI, R. 4 & O. I, R. 8---Bar to further suit---Particulars to be given where necessary---Plea of fraud and misrepresentation---Burden of proof---Scope---Respondents filed a suit for declaration and permanent injunction within the scope of O.I, R.8, C.P.C., on behalf of three tribes---Suit was decreed---Petitioner filed application under S.12(2), C.P.C., alleging fraud as well as misrepresentation and lack of knowledge regarding the decree---Application was concurrently dismissed---Validity---Since provision of S. 12(2), C.P.C., was invoked by the petitioner so the entire burden to prove fraud and misrepresentation was upon his shoulder---Necessary particulars constituting fraud and misrepresentation had not been mentioned in detail within the scope of O.VI, R.4, C.P.C.---Proper publication was made in the suit prior to proceeding with the case---Petitioner had tried to justify delay of 17 years in filing the application by pleading lack of knowledge but it was admitted that the petitioner's uncle was party to the judgment and decree---Petitioner had neither filed any revenue record nor had he relied upon any document which could justify his locus standi to file application under S. 12(2), C.P.C.---Constitutional petition was dismissed.

Happy Family Associate v. Pakistan Intentional Trading Company PLD 2006 SC 226 rel.

Muhammad Naeem Kakar for Petitioner.

2022 M L D 2061

[Balochistan]

Before Naeem Akhtar Afghan, CJ and Sardar Ahmed Haleemi, J

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU through Prosecutor General Accountability, NAB---Appellant

Versus

ABDUL NABI JATTAK and another---Respondents

Criminal Ehtesab Appeal No.06 of 2022, decided on 17th August, 2022.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a)(iv) & 14---Assets beyond known sources of income---Appreciation of evidence---Acquittal of accused---Initial onus to prove---Accused persons were charged for acquiring assets beyond known sources of their income but Trial Court acquitted them of the charge---Validity---Initial burden was on prosecution to establish allegation / charges levelled against accused persons---Prosecution failed to discharge its initial burden of proving allegations against accused persons---Criteria for evaluating evidence in appeal against conviction and in appeal against acquittal were distinct---Interference in order of acquittal was to be made where there was a gross mis-reading and mis-appreciation of evidence resulting in miscarriage of justice---High Court declined to interfere in judgment of acquittal as it was not suffering from any illegality, infirmity and was based on valid and sound reasons---Appeal was dismissed, in circumstances.

Yar Muhammad v. State 1992 SCMR 96 rel.

Jaffar Raza Khan, Acting Deputy Prosecutor General NAB for Appellant.

None present for Respondents.

2022 M L D 114

[Supreme Court (AJ&K)]

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

DEEBA BEGUM alias WAHIBA---Appellant

Versus

SAFIA IQBAL and 19 others---Respondents

Civil Appeal No.24 of 2020, decided on 26th August, 2021.

(On appeal from the judgment of the High Court dated 6-9-2019 in Writ Petition No.1884 of 2015)

(a) Administration of Evacuee Property Rules, 1950---

----R.17---Review petition---Limitation---Scope---Appellant challenged the allotment permits and the Proprietary Rights Transfer Orders (PRTO) after a period of almost 42 years and 20 years, respectively, before the Custodian of Evacuee Property by way of review petition---Validity---Limitation for filing review petition before the Custodian of Evacuee Property as provided under R.17(3) of the Administration of Evacuee Property Rules, 1950, was 30 days---Appellant had claimed that the impugned allotment permits and Proprietary Rights Transfer Order (PRTO) had come into her knowledge a week ago but no specific date was mentioned that as to how she acquired the knowledge of the same---Appellant had neither filed any affidavit in support of said paragraph nor filed a separate application for condonation of delay---Appeal was dismissed.

2017 YLR 1895; 2016 SCR 358; 2013 SCR 262; 2007 SCR 540 and 2005 SCR 80 distinguished.

2020 SCR 296; 2019 SCR 339/394; 2017 SCR 1485 and 2015 SCR 1229 ref.

Mehmood Ahmed v. Custodian and 10 others 2016 SCR 90 and Makhan Jan and 5 others v. Custodian of Evacuee Property, Azad Jammu and Kashmir and 2 others 2001 CLC 1149 rel.

(b) Limitation---

----Condonation of delay---Scope---Party seeking condonation of delay has to satisfactorily explain the delay of each and every day.

(c) Void order---

----Void order has to be challenged within a reasonable time.

Mirza Lal Hussain v. Custodian of Evacuee Property and others 1992 SCR 214 rel.

Mrs. Bilqees Rasheed Minhas, Advocate for Appellant.

Shahid Ali Awan and Syed Mehar Ali Shah Bukhari, Advocates for Respondents.

2022 M L D 161

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan, CJ and Raza Ali Khan, J

ABAD-UL-HAQ---Appellant

Versus

SECRETARY ELEMENTARY AND SECONDARY EDUCATION and 7 others---Respondents

Civil Appeal No.174 of 2020, decided on 14th July, 2021.

(On appeal from the judgment of High Court dated 14-1-2020 in Writ Petition No.1719 of 2019).

(a) Azad Jammu and Kashmir Civil Servants Recruitment (Relaxation of Age Limit) Rules, 1997---

----R.4---Relaxation of age limit---Serving employee of government---Scope---Appellant challenged the appointment of respondent on the ground that at the time of filing the application for appointment, the respondent was overage, hence, his appointment was illegal---Scope---Rule 4(v) of the Azad Jammu and Kashmir Civil Servants Recruitment (Relaxation of Age Limit) Rules, 1997, provided that in case of a candidate already working or had been working as a Government Servant on permanent, ad hoc, work charge, contract or temporary basis, the period of his continuous service as such, would, for the purpose of upper age limit prescribed under any service rules of the post for which he was a candidate, be excluded from his age---Verification issued by District Population Officer showed that the respondent had been serving in the Population Welfare Department as Social Mobilizer and Junior Clerk on temporary basis---Last Pay Certificate, issued in his favour, further strengthens the verification---After excluding the aforesaid period, in the light of R.4(v), the respondent was not overage, hence, the High Court had committed no illegality while dismissing the writ petition---Appeal was dismissed.

Director Azad Jammu and Kashmir Armed Service Board v. Abdul Qayyum Khan and others 2020 SCR 492 rel.

Abid Akram v. Danish Zaib and others 2015 SCR 732 distinguished.

(b) Azad Jammu and Kashmir Civil Servants Recruitment (Relaxation of Age Limit) Rules, 1997---

----R.4---Relaxation of age limit---Scope---Perusal of R.4 of Azad Jammu and Kashmir Civil Servants Recruitment (Relaxation of Age Limit) Rules, 1997, shows that relaxation in upper age limit has been provided for the persons whose service under the Government has been terminated for want of vacancy and in the case of Ex-Defence personnel, the interval between the date of his release from the Defence forces of Pakistan, including the Mujahid Force and the date of re-employment in a Civil Department, has been relaxed---Relaxation is also provided to the persons who have rendered National Service under the Pakistan National Service Ordinance, 1970---Likewise, relaxation is also provided to the specialists who spent additional period in pursuit of their professional studies and to the candidate already working as a government servant on permanent, ad-hoc, work charge, contract or temporary basis---Shortly stated, clauses (i) to (v) of Rule 4, categorically postulate that the period mentioned therein shall be excluded while counting the upper age limit---By using the word "excluded" the relevant authority has been vested with the power to exclude the period mentioned in each category.

(c) Azad Jammu and Kashmir Civil Servants Recruitment (Relaxation of Age Limit) Rules, 1997---

----R.6---Relaxation of age limit---Scope---Filing of application for relaxation in the upper age limit is mandatory only when R.6 of Azad Jammu and Kashmir Civil Servants Recruitment (Relaxation of Age Limit) Rules, 1997, is applicable, which provides that relaxation of age limit shall be allowed rarely and only in the cases involving factors beyond human control which merit due consideration.

Raja Iqbal Rasheed Minhas, Advocate for Appellant.

Sardar Abdul Sammie Khan, Advocate for Respondent No.5.

Raja Ayaz Ahmed, Assistant Advocate-General for Official Respondents.

2022 M L D 243

[Supreme Court (AJ&K)]

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

SECRETARY HEALTH, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and another---Appellants

Versus

MUHAMMAD LATIF BUTT and 5 others---Respondents

Civil Appeal No.68 of 2020, decided on 16th August, 2021.

(On appeal from the judgment of the High Court dated 5-9-2019 in Writ Petition No.1006 of 2018).

(a) MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016---

----Regln.11---Re-admission of students---Scope---Question before Supreme Court was whether the special chance extended by the University in favour of petitioner was in line with the PMDC (Pakistan Medical and Dental Council) regulations---Validity---Eligibility criteria for a candidate to appear in 1st and 2nd professional examination was provided in Regln. 11 of MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016---Regulation provided that a candidate who had failed to pass first professional Part-I or Part-II examination in four consecutive chances, availed or un-availed, was not eligible to pursue further medical education---Special chance granted by the University in favour of the petitioner was in contravention of the PMDC Rules and Regulations, hence, the same was rightly cancelled from the date of issuance by the same Authority---Appeal was accepted.

Munaza Habib and others v. The Vice Chancellor and others 1996 SCMR 1790 rel.

(b) Educational institution---

----Right to seek admission in an educational institution and to continue studies therein is always subject to the rules of discipline prescribed by the institution, therefore, a student who intends to pursue his studies in the institution is bound by such rules.

(c) Administration of justice---

---Void order---Scope---Even a void order must be challenged if one intends to get rid of its effects.

Shafqat Hayat v. Muhammad Shahid Ashraf and 18 others (2005 SCR 57 and Azad Government of the State of Jammu and Kashmir through Secretary Elementary and Secondary Education, Muzaffarabad and 3 others v. Mukhtar Ahmed and 12 others 2019 YLR 2111 rel.

(d) Pleadings---

----Point which is not taken in the pleadings by a party cannot be made basis for giving him the relief.

Muhammad Hussain v. Abdul Majid and others 1993 SCR 319 ref.

(e) Pleadings---

----Judgment has to be based on pleadings of the parties and a Court cannot travel beyond pleadings.

Muhammad Hussain v. Abdul Majid and others 1993 SCR 319 ref.

Syed Sayyad Hussain Gardezi, Advocate for Appellants.

Raja Muhammad Arif Rathore, Raja Amjid Ali Khan and Ch. Zafar Mehmood, Advocates for Respondents.

2022 M L D 338

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan, CJ and Raza Ali Khan, J

YOUSAF MALIK---Appellant

Versus

NAHEED REHMAN and 3 others---Respondents

Civil Appeal No.520 of 2020, decided on 6th July, 2021.

(On appeal from the judgment of High Court dated 15-10-2020 in Writ Petition No.2010 of 2020)

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

----Ss.8 & 9---Written statement---Delay in filing written statement---Closing of defence---Scope---Proceeding before the Family Court is governed by the special law i.e., the Azad Jammu and Kashmir Family Courts Act, 1993---Purpose of enacting said law has been given in clear words in the Preamble, which is expeditious settlement and disposal of matrimonial disputes and to avoid the protracted litigation between the parties---Under the Act, the specific provisions regarding the intimation to the defendant and filing of written statement have been provided---Legislature has prescribed the time for filing the written statement from the date of the notice---Since the defendant had failed to file the written statement within time, therefore, the Family Court had rightly closed the right of his defence---Appeal was dismissed.

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

----Art.44---Writ jurisdiction---Scope---While invoking extraordinary writ jurisdiction, it is the duty of the petitioner to point out any violation of law.

Bilqees Rasheed Minhas, Advocate for Appellant.

Tabarak Khan, Advocate for Respondent No.1.

2022 M L D 480

[Supreme Court (AJ&K)]

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

FAROOQ AHMED BUTT---Petitioner

Versus

AZAD GOVERNMENT through Board of Revenue Azad Kashmir, Muzaffarabad

and 8 others---Respondents

Civil PLA No.338 and Civil Miscellaneous No.319 of 2021, decided on 29th October, 2021.

(On Appeal from the judgment of the High Court dated 10-9-2021 in Writ Petition No.2052 of 2021).

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

----Art. 44---Civil Procedure Code (V of 1908), S. 91 & O.I, R.8---Public nuisances---One person may sue or defend on behalf of all in same interest---Filing of petition in representative capacity---Scope---Petitioner assailed notification issued by Government whereby certain land was sanctioned in favour of respondents---High Court dismissed the petition---Validity---Petitioner had filed the petition in representative capacity under Art. 44 of Azad Jammu and Kashmir Interim Constitution, 1974---Provisions of Civil Procedure Code, 1908, were applicable to the writ proceedings before the High Court, therefore, filing of the writ petition in the representative capacity required the permission of Advocate General as visualized by S. 91 of C.P.C., or the permission of Court, provided under O.I, R.VIII of C.P.C.---High Court had rightly dismissed the petition as writ petition was only competent where there was any violation of law or any other statutory provision was violated---Petition for leave to appeal was dismissed.

Raja Tahir Majeed Khan and 7 others v. Azad Government and 6 others 2014 SCR 272 and Muhammad Yaqoob v. Zaman Ali and 6 others 2017 CLC Note 124, p.135 ref.

Administration Municipal Committee Kotli and another v. Muhammad Abdullah and 3 others 2001 YLR 3367 and Mst. Walayat Begum v. Revising Authority MDA and 3 others 1999 MLD 1549 distinguished.

Raja Ali Shan v. Messer Essem Hotel Limited and others 2007 SCMR 741; Mir Alam and 2 others v. Sahibzada and 7 others 2007 SCMR 1157 and Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633 rel.

Fayyaz Ahmed Janjua, Advocate for Petitioner.

Sardar M.R. Khan, Advocate for Respondents Nos.6 and 7.

2022 M L D 502

[Supreme Court (AJ&K)]

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

PHARMACY COUNCIL OF PAKISTAN through President Pharmacy Council Secretariat---Appellant

Versus

FARAZ LATIF and others---Respondents

Civil Appeals Nos.253 and 254 of 2020, decided on 13th September, 2021.

(On appeal from the judgment of the High Court dated 26-2-2020 in Writ Petition No.2170 of 2018 and 805 of 2019).

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

----Art.58---Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XIII, R. 2 & O.XVIII, R.6---Respondents filed two writ petitions before High Court challenging the condition for pre-registration examination as D-Pharmacists with the appellant (Pakistan Pharmacy Council)---Respondents contended that the condition was imposed by the appellant/Council and Sindh High Court had set aside such condition and directed the appellant/Council to grant registration to respondents within 60 days; that the Council be directed to register the respondents as qualified Pharmacists on basis of degrees granted by the university/"institution"---High Court accepted the writ petitions---Appellant contended that the university started pharmacy education without seeking requisite N.O.C. which was allowed on the condition that institution had to pay fine and students admitted therein had to pass pre-registration examination; that respondents failed in the said examination and filed writ petitions in High Court with mala fide intention; that said writ petitions were not maintainable as respondents had alternate/efficacious remedy, i.e. four chances to pass examination; that High Court (AJ&K) had no (territorial) jurisdiction to entertain said petitions/pass orders against appellant; and that judgement of Sindh High Court which had been relied upon by High Court Azad Jammu and Kashmir was not applicable to the present case---Validity---Attested copy of judgment of Sindh High Court relied upon by the High Court, Azad Jammu and Kashmir, was available in the file---Said judgment was challenged before Supreme Court of Pakistan which had upheld the said judgment, as the Council/appellant could not satisfy the Supreme Court as to existence of any specific provision of Pharmacy Act, 1967 or any rules/regulations authorizing the Council/appellant to take pre-registration test form students who had completed D-Pharmacy (which program was subsequently allowed to a university after payment of fine)---Facts/circumstances of the present case and that of the case relied upon by High Court, Azad Jammu and Kashmir, were of similar nature---Principle of law enunciated by Supreme Court of Pakistan would be followed keeping in view the facts/circumstances of the case-High Court while placing reliance on the said judgment had committed no illegality/legal infirmity­---Question as to whether High Court had jurisdiction to entertain the Constitutional petition/pass order against Pharmacy Council of Pakistan as the same was not performing any function in Azad Jammu and Kashmir, had already been resolved in Ministry of Kashmir Affairs and Gilgit Baltistan and another v. Messrs Z.K. Associates (Pvt.) Ltd. and 4 others (2021 YLR 2337)---Findings recorded by High Court in impugned judgment were quite in accordance with law, which warranted no interference---Appeals were dismissed accordingly.

Nemo. for Appellant.

Muhammad Hanif Khan Minhas and Barrister Hamayun Nawaz Khan, Advocate for Respondents.

2022 M L D 572

[Supreme Court (AJ&K)]

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

MOHZIM ALI DANISH---Appellant

Versus

FAMILY JUDGE, MUZAFFARABAD and another---Respondents

Civil Appeal No.1-A of 2021, decided on 11th November, 2021.

(On appeal from the judgment of the High Court dated 14-9-2020 in Writ Petition N.501 of 2020).

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

----S.11(2)---Dissolution of marriage---Cruelty, verbal abuse and non-payment of maintenance---Name of witness included in list---Summoning of---Case at post-trial stage---Appellant's applications for summoning of witness were disallowed by Trial Court two times---Both followed by filing Constitutional petitions, which were dismissed by High Court---Appellant contended that name of such witness was included in list of witness; that said witness was real sister of respondent/wife; that she was not allowed by her family members to appear in Court as witness; that impugned judgment of High Court was self-contradictory in nature---Validity---Family Court framed issues---Process of recording evidence had almost been completed and case was at post-trial stage---Appellant filed first application for summoning of witness after period of 8 months from framing of issues which was rejected by Family Court and writ petition was dismissed by High Court---Second application for summoning of the same witness had been filed after period of more than 2 years from framing of issues which was rejected by Trial Court and writ petition was dismissed---Such application was to be filed within 3 days of framing of issues---Appellant had failed to fulfil the basic requirement of filing such application, therefore, in view of the spirit of S.11(2) of Family Courts Act, 1993, question of considering reasons for non-appearance at early stage could not arise---No violation of law/statutory provision/celebrated principle of law was found---Appeal was dismissed accordingly.

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

----S.11(2)---Suit for dissolution of marriage---Name of witness included in list---Summoning of---Case at post-trial stage---Scope---Clause (2) of S.11, Family Courts Act, 1993, was mandatory in nature and clearly placed embargo upon the Family Court not to summon any witness after framing of issues---If a party wanted to summon a witness through the process of Court, the same had to intimate within 3 days of framing the issues and if the Court was satisfied that it was not possible for such party to produce the witness then such witness might be summoned by the Court.

Raja Ibrar Hussain, Advocate for Appellant.

Shahid Ali Awan, Advocate for Respondent No.2.

2022 M L D 1399

[Supreme Court (AJ&K)]

Before Kh. Muhammad Nasim and Muhammad Younas Tahir, JJ

SAIRA BANARAS---Petitioner

Versus

Dr. RAEES AHMED and others---Respondents

Civil Review No.27 of 2021, decided on 28th December, 2021.

(In the matter of review from the judgment of this Court dated 7-9-2021).

(a) Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O.XLVI, R.3---Review---Certified copy of the judgment or order complained of---Scope---Petitioner seeks review of judgment passed by Azad Jammu and Kashmir Supreme Court---Validity---Order XLVI, R.3 of the Supreme Court Rules, 1978, provides that every application for review shall be accompanied by a certified copy of the judgment or order complained of but in the present case the certified copy annexed with the review petition had not been obtained by the petitioner or her counsel or her authorized representative rather the certified copy had been obtained by some person who was totally stranger to the proceedings of the case at all levels and before all forums---Attested copy attached with the memorandum of review petition could not be termed under the referred rule as 'a certified copy of the judgment or order complained of'---Copy should have been obtained by the petitioner herself, her counsel or authorized representative/agent but there was nowhere mentioned in the memorandum of review petition to the effect that what was the concern of the person who had obtained the copy of the impugned judgment and nexus with the proceedings of the case---Such sole ground was sufficient to declare the review petition as incompetent---Review petition stands dismissed.

Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 2 others v. Ch. Khadim Hussain 2005 CLC 1025 and Regional Manager Utility Stores v. Babar Iqbal and another 2016 SCR 773 rel.

(b) Administration of justice---

----If a thing is required to be performed in any prescribed manner, that must be performed according to that manner or not otherwise.

Sardar Karam Dad Khan and Sardar Muhammad Rauf Khan, Advocate for Petitioner.

Barrister Humayun Nawaz Khan, Advocate for Respondents.

2022 M L D 1987

[Supreme Court (AJ&K)]

Before Kh. Muhammad Nasim, Raza Ali Khan and Muhammad Younas Tahir, JJ

AUQAF DEPARTMENT through Chief Administrator Auqaf and 2 others---Appellants

Versus

MUHAMMAD JAVED and 74 others---Respondents

Civil Appeal No.252 of 2019, decided on 20th January, 2022.

(On appeal from the judgment of the High Court dated 29-12-2018 in Civil Appeal No.51 of 2013).

Azad Jammu and Kashmir Waqf Properties Act (IX of 1960)---

----Ss.7 & 6---Administrator may take over Waqf property by notification---Petition to District Court against notification---Scope---Respondents were aggrieved of a notification issued by Auqaf department under S.6 of the Azad Jammu and Kashmir Waqf Properties Act, 1960 whereby property of a shrine was taken over by the department and a mutation was also entered in department's favour---Respondents filed a petition before the Reference Judge---Validity---Reference Judge/District Judge had conducted all the proceedings of the case i.e. framing of issues, recording of evidence, hearing of arguments and delivering of judgment in the light of the provisions of Land Acquisition Act, 1894, in the capacity of a Reference Judge---Reference application was not a petition under S.7 of the Azad Jammu and Kashmir Waqf Properties Act, 1960---Same was not a mere case of wrong pleadings or nomenclature of the Court---Proceedings conducted by the Reference Judge were declared to be null and void---Case was remanded to the District Judge to conduct de novo trial.

Sajid Hussain Abbasi for Appellants.

Syed Nazir Hussain Shah Kazmi for Respondents.