MLD 2023 Judgments

2023 M L D 17

[Supreme Appellate Court Gilgit-Baltistan]

Before Syed Arshad Hussain Shah, C.J. and Wazir Shakeel Ahmed, J

JUNAID AHMED---Petitioner

Versus

The STATE---Respondent

Criminal P.L.A. No. 10 of 2020, heard on 6th April, 2021.

(Against judgment dated 09.06.2020 passed by Gilgit-Baltistan Chief Court in W.P. No. 109 of 2020)

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

----S. 516-A---Order for custody and disposal of property pending trial---Scope---Accused supplied laboratories (Lab.) items to District Health Office---Upon receipt of lab material, bills thereof were prepared, submitted to AGPR (Accountant General Pakistan Revenues) and a cheque was issued in favour of accused---Accused presented before the bank two cheques i.e. an original cheque and a manipulated cheque, as such an FIR was lodged and the cheques were impounded by police authorities as case property---Accused sought superdari of original cheque but the application was dismissed throughout---Held; due payment of admitted civil liability could not be denied, as such, the disputed cheque could have been issued to the accused for encashment by retaining a photocopy thereof with police record while original cheque could have been requisitioned from the retainer thereof i.e. AGPR or the concerned bank whosoever, for the purpose of investigation by police authorities---Admitted civil liability could not have been denied just on the basis of registration of criminal case against the accused---Civil petition for leave to appeal was converted into an appeal and the same was allowed.

(b) Administration of justice---

----Civil and criminal proceedings--- Scope--- Civil and criminal liabilities are two different components and do not have bearing on the outcome of each other, as such due to commission of criminal act by a person, he cannot be denied civil right provided to him under the law.

The Prosecutor General, Gilgit-Baltistan for the State.

Raja Shakeel Ahmed, Advocate for Petitioner.

2023 M L D 39

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ

ALI MUHAMMAD---Petitioner

Versus

FIDA HUSSAIN and 4 others---Respondents

Civil Revision No. 16 of 2020, decided on 6th November, 2021.

Civil Procedure Code (V of 1908)---

----O. V, R. 25 & S. 12(2)---Service where defendant resides out of Pakistan and has no agent---Scope---Petitioner assailed ex-parte judgment and decree on ground that he was residing out of Pakistan when the decree was passed against him---Validity---Trial Court had not bothered to comply with the mandatory provision of O. V, R. 25, C.P.C., as it had not issued any notice through postal communication to the petitioner through the embassy of Pakistan---Trial Court had not got published notice in any national or international newspaper---Ex-parte decree passed by the Trial Court against the petitioner was a result of misrepresentation and fraud and was not sustainable in the eyes of law---Revision petition was accepted and the application filed by petitioner under S. 12(2), C.P.C., was allowed

Ali Khan and Iqbal Hussain for Petitioner.

Haji Muhammad Hassan Jehangir for Respondents.

2023 M L D 57

[Gilgit-Baltistan Chief Court]

Before Malik Inayat-ur-Rahman and Johar Ali, JJ

HAFAS KHAN and 3 others---Petitioners

Versus

MOHAMMAD ALI---Respondent

Civil Revision No. 17 of 2021, decided on 28th October, 2021.

Civil Procedure Code (V of 1908)---

----O. IX, R. 13---Setting aside ex parte decree---Sufficient cause---Scope---Petitioners/defendants assailed the dismissal of their application under O. IX, R. 13, C.P.C.---Validity---Defendants had remained absent intentionally after filing of their written statement and had not pursued the suit proceedings which had lead the Trial Court to pass an ex-parte decree---On filing of an application under O. IX, R. 13, C.P.C., the suit was restored---Thereafter, the defendants had appeared for four successive dates and then again opted to remain absent without any plausible information to the Trial Court---Defendants were again proceeded ex-parte---Defendants had failed to furnish any just and sufficient cause for their subsequent absence and unexplained delay in filing the application under O. IX, R. 13, C.P.C.---Revision petition was dismissed.

Mohammad Wazir Khan for Petitioners.

Imtiaz Hussain and Faizul Wahid for Respondent.

2023 M L D 143

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ

MUSADDIQ HUSSAIN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 56 of 2022, decided on 1st April, 2022.

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

----S. 497---Penal Code (XLV of 1860), Ss. 380 & 457---Theft in dwelling house---Lurking house trespass or house-breaking by night in order to commit offence punishable with imprisonment---Bail, grant of---Delayed FIR---Un-witnessed occurrence---Scope---Accused was alleged to have stolen three goats from the cattle-shed of complainant---Accused was not directly charged in the FIR and there was 10 hours delay in lodging of FIR---No eye-witness had witnessed the occurrence, the stolen goats were not recovered from the possession of the accused rather the goats were found outside of the cattle-shed---Accused was entitled for concession of bail---Petition for grant of bail was allowed.

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

----S. 497---Bail---Case not falling in prohibitory clause---Scope---Grant of bail is a rule and refusal is an exception where the offence does not fall within the prohibitory clause of S. 497, Cr.P.C.

Shehzad Iqbal for Petitioner.

Abdul Karim, Deputy Advocate General for the State.

2023 M L D 172

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

EZAM KHAN---Petitioner/Accused

Versus

The STATE---Respondent

Criminal Miscellaneous No. 205 of 2021, decided on 29th December, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Juvenile Justice System Ordinance (XXII of 2000), S. 10---Attempt to commit qatl-i-amd, common intention---Un-licensed possession of arms---Arrest and bail---Bail, grant of---Scope---Prosecution case was that the accused along with another opened fire on the son and nephew of complainant with intent to murder them---Contention of accused was that regarding the same occurrence another FIR was got registered wherein the complainant party had committed a murder but said fact had been concealed and the present FIR had been lodged as a counter-blast---Held; time and place of occurrence in both the FIRs was same but it was yet to be determined by the Trial Court that either the occurrences were independent or both the FIRs were result of a single event of mishap---Co-accused had been released by the police under S. 169, Cr.P.C.---Accused was a minor as per his school leaving certificate---Challan had already been submitted before the Court---Offence under S. 13 of Pakistan Arms Ordinance, 1965, was bailable---Offence under S. 324, PPC did not fall within the prohibitory clause of S. 497, Cr.P.C. as per provisions of S. 10 of Juvenile Justice System Ordinance, 2000---Accused was admitted to post-arrest bail, in circumstances.

Jamshed Khan and Zahid Nawaz for Petitioner/accused.

2023 M L D 304

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ

WAJID SHAHBAZ and 2 others---Petitioners

Versus

STATION HOUSE OFFICER (SHO), POLICE STATION GAHKUCH CITY, DISTRICT GHIZER---Respondent

Criminal Miscellaneous No. 116 of 2022, decided on 21st June, 2022.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 341, 147, 353, 186, 506, 500, 337-A(iii) & 427---Rioting---Quashing of FIR---Scope---Some miscreants had committed vulgar activities in a public place---Accordingly, an FIR was lodged but the local police had failed to arrest nominated accused in time---Resultantly, the petitioners/accused persons and thousands of other people of the district held a peaceful protest/demonstration---Instead of arresting the actual culprits of the vulgar incident the police lodged the impugned FIR against the petitioners with mala fide intention---One of the constables had allegedly sustained injuries but his injury sheet was not produced---Holding of demonstration and freedom of assembly was an essential element of a democratic society which was a guaranteed fundamental right under the Constitution---Such inalienable right could not be abridged or restricted nor could it be allowed to be termed as an offence of unlawful assembly---Exercise of fundamental right by the citizen could not justifiably be made ground for lodging FIR against them---First Information Report was quashed.

1998 MLD 1533; PLD 2011 Kar. 99; 2013 CLC 1709 and 2014 CLC 1558 ref.

(b) Constitution of Pakistan---

----Art. 16--- Penal Code (XLV of 1860), S. 141---Freedom of assembly---Unlawful assembly---Scope---Holding of demonstration and freedom of assembly is an essential element of a democratic society which is a guaranteed fundamental right under the Constitution---Such inalienable right cannot be abridged or restricted nor can it be allowed to be termed as an offence of unlawful assembly---Exercise of fundamental right by the citizen cannot justifiably be made ground for lodging FIR against them.

Islam ud Din for Petitioners.

Abdul Karim, Dy. Advocate General for Respondent.

SIP Khaleeq and SIP G.M. Din Police Station City Gahkuch are also in attendance.

2023 M L D 346

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ

ABDUL HASSAN and another---Petitioners

Versus

MUHAMMAD ABBAS---Respondent

Civil Revision No. 148 along with Civil Misc. No. 843 of 2021, decided on 30th June, 2022.

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

----S. 42--- Suit for declaration--- Gift deed---Non-production of marginal witnesses---Inheritance, entitlement to---Scope---Plaintiffs filed a suit for enforcing right of inheritance in their maternal grandfather's legacy---Defendant claimed that the mother of plaintiffs had passed away during the lifetime of her father and that the property had been gifted to him through a gift deed---Validity---Gift deed was neither registered nor marginal witnesses were produced in the trial court---Defendant had not produced any oral or documentary evidence regarding necessary ingredients/conditions of a gift i.e. offer, acceptance and delivery of possession---Children of predeceased daughter of the late full owner inherited the same which the mother would have got as if she was alive at the time of opening of succession---Petition was allowed and resultantly, the suit was decreed. 2021 SCMR 179; 2020 SCMR 1618; 2016 SCMR 986; 2020 SCMR 346; PLD 2021 SC 812; 2020 SCMR 601; 2005 SCMR 135; PLD 2018 Lah. 813; 2014 YLR 293; PLD 2013 Lah. 464 and 1997 SCMR 281 ref.

(b) Inheritance---

----Limitation---Scope---No bar of limitation and estoppel exists in cases of inheritance.

Muhammad Ali Shah for Petitioners.

Muhammad Essa and Wahid Ali for Respondent.

2023 M L D 817

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmed, J

PROVINCIAL GOVERNMENT through Chief Secretary, Gilgit-Baltistan and another---Petitioners

Versus

JUMLA AHLYAN BURSING MOUZA KEHCHONG (HUSSAINABAD) through Representatives and others---Respondents

C. Rev. No. 2 of 2019, decided on 3rd November, 2021.

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

----S. 10---Stay of suit---Scope---Where appeal of previous suit was pending for adjudication in the Appellate Court and the same had jurisdiction to grant the relief in appeal, High Court observed that in such situation it was mandatory upon the court trying the subsequent suit to stay proceedings under S. 10 of C.P.C.

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

----O. VII, R. 11---Rejection of plaint---Scope---Plain reading of O. VII, R. 11, C.P.C., shows that under this provision a suit can be rejected where suit does not disclose a cause of action, where the relief claimed is under-valued, where relief claimed is properly valued but plaint is insufficiently stamped, or where suit appears from the statement in the plaint to be barred by law---When the provisions of this rule are attracted, the suit cannot be dismissed but the plaint should be rejected.

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

----S. 11---Res judicata---Scope---Section 11 of C.P.C. provides that no court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between parties in a court of competent jurisdiction has been heard and finally decided---Section 11, C.P.C. does not bar the cognizance of suit but only prohibits the trial of the suit or issues.

Additional A.G. for Petitioners.

Hassan Jahangir for Respondents.

2023 M L D 1204

[Gilgit-Baltistan Chief Court]

Before Mushtaq Muhammad, J

JUMLA BASHINDGAN DEEN through Representatives---Petitioners

Versus

MUHAMMAD HUSSAIN and 2 others---Respondents

Civil Revision No. 147 of 2022, decided on 20th April, 2023.

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

----S. 42---Suit for declaration---Right in Shamilat Deh---Non-resident of village---Scope---Plaintiff claimed a right in Shamilat Deh (village common lands)---Trial Court and Appellate Court decreed the suit---Validity---Plaintiff had obtained property through private transactions and on the strength of those possessions he wanted his share in village common lands and grazing rights---It was nowhere mentioned in the plaint that the Shamilat lands in the defendant village had been partitioned---Plaintiff had claimed that in future if the common lands were divided he might be given his due share---Said statement was incorrect---Firstly, through this statement he wanted to enforce an expectant right which could not be enforced; secondly, the plaintiff was not specific in his claim regarding share in the common lands---Such statement of plaintiff could not be accepted for the reason that if the common land or Shamilat Deh was to be divided then such right went to the proprietary body of the village and if the property sought to be divided was State land then Provincial Government had the authority to allot the same---Plaintiff could only be considered as Malik Qabza and in his capacity he was limited owner to the extent of his private properties---Impugned judgments and decrees were set aside and the revision petition was accepted, in circumstances.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 39(2)(b)---Wajib ul Arz---Meaning.

Wajib ul Arz contains a specification of village customs, rules of management and everything affecting the government of the estate, the distribution of profits, irrigation and rights in the waste. It provides the code of rules for the future management of the manor and is always considered a most important document.

Haji Qudrat Ali v. Government of NWFP 1993 SCMR 381 rel.

Wajib ul Arz prepared at the time of settlement carries statutory presumption of correctness. Wajib ul Arz describes the right and liabilities among the villagers inter se, such as enjoyment of proceeds of common land and rights of grazing on common land, etc.

Safdar Hussain v. Muhammad Azam Khan PLD 2009

Lah. 347 rel.

(c) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 39---Shamilat Deh---Meaning.

Shamilat Deh is joint and un-partitioned village common land. Persons recorded in proprietary body of village would be entitled to Shamilat Deh to the extent of their respective proprietary holding in village. Any of such persons could claim possession only through partition of entire Shamilat Deh, but not otherwise.

Firdous Khan and others v. Zain Muhammad and others 2011 MLD 521 rel.

The village common land comprises the Shamilat Deh, including the uncultivated and pasture lands, the abadi or inhabited village site or vacant space reserved for extension of the village dwellings and adjoining the village site.

Haji Qudrat Ali v. Government of NWFP 1993 SCMR 381 rel.

(d) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 39---Shamilat Deh---Malik Qabza---Meaning---Person is said to be a Malik Qabza who has been transferred rights only to a piece of land without the right to Shamilat.

Sher Wali Khan for Petitioners.

Manzoor Ahmed for Respondent No. 1.

Nemo for rest of the Respondents.

2023 M L D 2011

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ

AHLIYAN-E-PISSAN through Representatives---Petitioners

Versus

FIDA ALI and others---Respondents

Civil Revision No. 75 along with C.M. No. 676 of 2022, decided on 7th March, 2023.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Claim of the plaintiffs was that they were bona fide owners-in-possession of the suit-property---Suit was concurrently decreed in favour of plaintiffs---Validity---Record revealed that the respondents/plaintiffs had produced three witnesses who were residents of the village, the petitioners/defendants hailed from---Said witnesses had unequivocally stated in their statements that the respondents / plaintiffs were owners of suit-property and even they had taken stones from suit-property with their (respondents') permission for construction of different projects; and the petitioners/defendants had not been able to shatter said statements in the cross-examination---On the contrary, the petitioners/ defendants had failed to produce impartial reliable oral as well as documentary evidence in support of their contentions raised in their statements---Chief Court maintained the impugned judgments and decrees passed by both the Courts below --- Revision was dismissed , in circumstances.

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

----S. 115---Concurrent findings---Revisional jurisdiction of the Chief Court---Scope---Validity---When the findings recorded by the Trial Court and the Appellate Court were concurrent; howsoever erroneous, such findings could not be interfered with by the Chief Court in exercise of its revisional jurisdiction under S. 115 of the Civil Procedure Code, 1908, unless such findings suffered from controversial defects---Chief Court maintained the impugned judgments and decrees passed by both the Courts below---Revision was dismissed, in circumstances.

2020 CLC 813; 2007 SCMR 870; 2009 SCMR 286 and PLD 2005 SC 418 ref.

Ghulam Muhammad for Petitioners.

Ghulam Nabi for Respondents No. 1 to 4.

Mir Muhammad, Additional Advocate-General for Respondents Nos. 5 to 7.

2023 M L D 2055

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ

ALI DAD---Petitioner

Versus

MUHAMMAD HUSSAIN and others---Respondents

Civil Revision No. 41 along with C.M. No. 189 of 2019 and CoC No. 18 of 2022, decided on 31st March, 2023.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Claim of the plaintiff was that the suit-land was purchased jointly by him and the defendant but he (defendant) had clandestinely transferred joint-property in his name in connivance with Revenue Officers---Suit was concurrently dismissed---Contention of the petitioner/plaintiff was that he had produced five witnesses who had orally proved his claim---Validity---Record revealed that the petitioner/plaintiff had not produced any valid and cogent documentary evidence in the Trial Court, however, he had produced five oral witnesses---Statements of witnesses produced by the petitioner/plaintiff showed that all the witnesses had failed to substantiate his claim , rather one of the them, who was original owner of the suit-property, had supported the contention of the respondent/defendant stating that he (petitioner) had sold out the suit-property to the respondent/defendant---Said witness (original owner) had also admitted in cross-examination that the mutation-in-question had been attested in favour of the respondent in his presence---Relevant Jamabandi of suit-land had been prepared in the name of the respondent/defendant, which had not been challenged by the petitioner/plaintiff in the plaint---Petitioner/plaintiff had filed the suit after 25 years of attestation of mutation-in-question, hence his suit was time-barred---Both the Courts below had properly exercised the jurisdiction vested in them---Chief Court maintained the impugned judgments passed by both the Courts below---Revision was dismissed, in circumstances.

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

----S. 115---Concurrent findings---Revisional jurisdiction of the Chief Court---Validity---Concurrent findings of courts could not be upset by the Chief Court in its revisional jurisdiction in a casual manner, rather it had to be proved that the same were preserve, arbitrary or were based on mis-reading or non-reading of evidence---Findings on question of fact or law recorded by the Court of competent jurisdiction, could not be interfered with by the Chief Court in exercise of its revisional jurisdiction under S. 115 of the Civil Procedure Code, 1908, unless such findings suffered from jurisdictional defects, illegality or material irregularity which were lacking in the case---Both the Courts below had properly exercised the jurisdiction vested in them---Chief Court maintained the impugned judgments passed by both the Courts below---Revision was dismissed, in circumstances.

Latif Shah for Petitioner.

Mazhar Hussain and Hamid Ali for Respondents Nos. 1 to 7.

Malik Sherbaz, Dy. Advocate General for Respondents Nos. 8 and 9.

2023 M L D 2114

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ

MUHAMMAD NAQASH---Petitioner

Versus

HUSSAIN NASIR and another---Respondents

Criminal Miscellaneous No. 75 of 2023, decided on 13th June, 2023.

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

----S. 497(5)---Cancellation of bail---Grounds---Strong and cogent reasons are required for cancellation of bail as the grounds for grant of bail and that of cancellation of bail granted by a competent Court of Law are different---Bail granted to the accused can only be cancelled on the following grounds: (i) That if bail granting order is perverse or disregards settled principles regulating the grant of bail; (ii) That accused has tried to hamper prosecution evidence by pressurizing the prosecution witnesses; (iii) That it is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice; (iv) That the accused after grant of bail has misused the concession of bail; and (v) That there is likelihood of absconsion of the accused.

2010 SCMR 580 and 2007 SCMR 482 ref.

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

----Ss.497(5) & 497(1)---Penal Code (XLV of 1860), Ss. 489-F & 420---Dishonoring of cheque, cheating and dishonestly inducing delivery of property---Petition for cancellation of post-arrest bail, dismissal of---Offence not falling within the ambit of prohibitory clause of S. 497(1) of the Criminal Procedure Code, 1898---Petitioner/complainant had not been able to put-forth any of the settled principles/grounds governing the cancellation of bail of the respondent/accused---Moreover, offence under S. 489-F of the Penal Code, 1860, did not fall within the ambit of prohibitory clause of S. 497(1) of the Criminal Procedure Code, 1898 and grant of bail in such offence was a rule and refusal an exception---Application for cancellation of post-arrest bail moved by the complainant, being devoid of merit, was dismissed in circumstances.

PLD 1995 SC 34 ref.

Mudassir Hassan for Petitioner.

Deputy Advocate General for the State.

Basharat Hussain for Respondent/accused.

2023 M L D 727

[High Court (AJ&K)]

Before Sardar Liaqat Hussain, J

AL SHIFA TRUST HOSPITAL AMBORE MUZAFFARABAD through Executive Director---Petitioner

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary Muzaffarabad and 5 others---Respondents

Writ Petition No. 282 of 2016, decided on 30th November, 2022.

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

----Art. 44---Writ petition---Maxim: Audi alteram partem---Scope---Petitioner, a charitable institution, was allotted 50 kanals of land by the respondent through an MOU (Memorandum of Understanding)---Respondent vide impugned notification allotted 25 kanals 14 marlas in favour of another party---Contention of respondent was that since the petitioner had failed to utilize/make construction over the allotted land in compliance of MOU, therefore, the same was taken back---Validity---MOU contained no provision/condition to the effect that the respondent would cancel the allotment of land or reduce the acreage of the land on any pretext rather it was mentioned that on closing of the project, the built up structure would be the property of the respondent---Valuable right accrued in favour of the petitioner could not be snatched/taken back on any pretext, except with due course of law---Impugned notification was also hit by the principle of audi alteram partem---Writ petition was accepted and the impugned notification was set aside.

Chairman Pearl Development Authority v. Tariq Inqalabi and 7 others 2005 PLC (C.S.) 1074 and Taskeen Naz v. Fehmida Begum and 11 others 2016 PLC (C.S.) 1151 rel.

(b) Administration of justice---

----Nobody can be condemned unheard.

Chairman Pearl Development Authority v. Tariq Inqalabi and 7 others 2005 PLC (C.S.) 1074 and Taskeen Naz v. Fehmida Begum and 11 others 2016 PLC (C.S.) 1151 rel.

Raja Amjad Ali Khan for Petitioner.

2023 M L D 1403

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

PEACE ENTERPRISES through Sole Owner---Petitioner

Versus

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

Writ Petition No. 371 of 2022, decided on 20th September, 2022.

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

----Art. 44---Civil Procedure Code (V of 1908), O. I, R. 10---Writ petition---Necessary party---Scope---Petitioner sought direction to the respondents to issue work orders for a construction project---Contention of petitioner was that he had submitted the lowest bid but despite that his bid was not being processed---Validity---Petitioner had submitted his blank/incomplete tender application form before the relevant authority for different works which were forthwith rejected, whereas, the tendering process had been completed---Project was allotted in favour of four different contractors---Petitioner had failed to array the contractors' as parties in the writ petition---Contractors were necessary parties being beneficiaries---This sole ground was suffice for dismissal of the writ petition along with other reasons---Writ petition was dismissed.

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

----O. I, R. 10---Necessary party---Scope---No effective order or decision can be rendered in absence of a necessary party.

Mirza Lal Hussain v. Custodian 1992 SCR 214 and Mohammad Naseem Khan v. Mohammad Akbar Khan 2003 SCR 142 ref.

Sardar Ejaz Nazir for Petitioner.

2023 M L D 1460

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

REHMAN SHAH---Appellant

Versus

MUZAFFAR SHAH and 6 others---Respondents

Civil Appeal No. 321 of 2019, decided on 9th February, 2023.

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

----O. VII, R. 11---Suit for declaration and perpetual injunction---Rejection of plaint---Scope---Appellant filed suit seeking declaration to be sole owner of the suit land---Appellant in his plaint admitted that the original owner of land in question sold the same to three persons through a sale deed---Said sale-deed was pre-empted by appellant and predecessor of respondents---Suit was decreed on the basis of compromise between the parties and both appellant and predecessor of respondents were declared to be entitled to get 5 kanal each, hence appellant could not claim being sole owner of 10 kanal land which was pre-empted by appellant as well as predecessor of respondents---Thus, there existed zero probability that appellant could get required decree because even if claim of appellant that he had paid the whole consideration amount and expended huge money during litigation for the same land was deemed to be correct even then appellant could not be declared owner of land and respondents who were lawful owners of land in view of the decree could not be prohibited to enjoy the fruits of their land, therefore, both the Courts below had accurately rejected the suit under O. VII, R. 11, C.P.C.---Appeal was dismissed.

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

----O. VII, R. 11---Rejection of plaint---Relevant facts to be looked into by court---Relevant facts that need to be looked into for deciding an application under O. VII, R. 11, C.P.C., are the averments in the plaint; however, besides averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of plaintiff can also be pondered into for the purpose of rejection of the plaint----Similarly, if a party who approaches the Court, with malice intention by concealing material facts which if brought before the Court, the plaintiff would have been out of Court having no cause of action, and also in a situation where respondents brought any such fact in the notice of the Court the same can also be judiciously mused while deciding an application under O. VII, R. 11, C.P.C., because a plaintiff should not be allowed to drag the other party into a frivolous and non-sensical litigation---Basic objective, aim and design of O. VII, R. 11, C.P.C., is that an incompetent suit should be laid at rest at its inception so that no further time is allowed to be wasted over what is bound to collapse---Suit may be specifically barred by law and in such an event, the matter would come under the express terms of clause (d) of R. 11 of O. VII of the C.P.C., but even in a case where a suit is not permitted by necessary implication of law in the sense that a positive prohibition can be spelt out of legal provisions, the Court has got an inherent jurisdiction to reject the plaint at any stage of trial and in such a situation formalities should be avoided to reject it, thus, O. VII, R. 11, C.P.C., is not exhaustive---Court in exercise of inherent jurisdiction can nip frivolous litigation in the bud---It is the duty of the Court to thoroughly examine the plaint at the very inception so that the parties could be saved from the agony of frivolous litigation in order to save the precious time of the court because a Court should not behave like a mute observer and allow a party to capture the system of justice for an indefinite time.

2002 SCMR 338; 1991 MLD 2295; PLD 1997 AJK 11 and 1994 CLC 1248 rel.

Sardar Muhammad Hafeez Khan for Appellant.

Chaudhary A. Naeem for Respondents.

2023 M L D 1808

[High Court (AJ&K)]

Before Sardar Liaqat Hussain, J

IFFAT BIBI---Appellant

Versus

ZAHEER AHMAD GILLANI and another---Respondents

Criminal Appeal No. 66 of 2021, decided on 14th June, 2022.

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

----Ss. 492-B & 492-C---Criminal Procedure Code (V of 1898), S. 203-F---Prohibition of grabbing of property---Complaint filed against the grabbing of land was dismissed by the Trial Court---Validity---In the case in hand, the claim of complainant, who was real sister of respondents, was that her father gifted 01 kanal land to her through gift deed and possession was handed over to her---However, father of complainant had been looking after the said piece of land because due to marriage she was settled in other village and her brother/respondent was signatory of the said gift deed because complainant being 'Pardanasheen' did not appear in the process of writing and registration of the said gift deed rather his brother/ respondent appeared on her behalf---After death of father of complainant, respondent dispossessed the complainant by starting construction upon the said piece of land due to which parties were litigating before civil Court and proceedings of mutation of the said land was under process---From the said claim of complainant, it was an admitted fact that mutation proceeding of the said land was under process, however, an important aspect of the matter in hand was that respondent was stated to be signatory of the said registered gift deed, but such vital factum was not considered by the Court below while dismissing the complaint---Rather before dismissal of complaint on merit by the Trial Court, the matter was to be investigated or inquired by adopting proper procedure provided under S. 203-F, Cr.P.C, which postulated that Magistrate or a Revenue Officer should have been appointed to make inquiry and it had clearly been mentioned in the said provision of law that "the report of Magistrate or Revenue Officer, as the case may be, shall be construed as evidence in the case", but in the case in hand, the said report had not been obtained---Neither proper procedure for conducting inquiry in the instant case/complaint had been adopted nor the impugned order had been recorded according to the procedure provided under the provisions of S. 203-F, Cr.P.C.---Impugned order was set-aside and matter was remanded for decision afresh after adopting proper procedure for making an inquiry upon the complaint.

2016 SCMR 1931 and PLD 2008 Lah. 59 ref.

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

----Ss. 492-B &492-C---Prohibition of grabbing of property---Civil litigation---Complaint filed against the grabbing of land was dismissed by the Trial Court---Observation made by the Court below was that dispute between parties was of civil nature and parties were already under litigation before competent forum and complainant might have some right enforceable through civil Court but she had no right to put the criminal law in motion---Validity---Where an Act entailed civil liability under civil law as well as criminal penalty under criminal law, a person could be tried under both kinds of proceedings which were independent to each other---Thus, the ground of civil litigation between the parties, narrated by Court below in the impugned order, could not be made basis for dismissal of complaint, hence, the impugned order to that extent was not maintainable---Appeal was allowed by setting aside impugned order and matter was remanded for decision afresh after adopting proper procedure for making an inquiry upon the complaint, in circumstances.

Shaikh Muhammad Naseem v. Mst. Farida Gul 2016 SCMR 1931 rel.

Syed Asad Ali Kazmi for Appellant.

2023 M L D 47

[Islamabad]

Before Mohsin Akhtar Kayani and Saman Rafat Imtiaz, JJ

JUNAID MASEEH---Appellant

Versus

The STATE through PS CTW, FIA, Islamabad and 2 others---Respondents

I.C.A. No. 33 of 2022, decided on 1st February, 2022.

Official Secrets Acts (XIX of 1923)---

----S. 13---Law Reforms Ordinance (XII of 1972), S. 3(2) proviso---Intra Court Appeal--- Maintainability--- Quashing of FIR---Appellant/accused sought quashing of FIR registered against him by Federal Investigating Agency---Validity---Appellant/accused failed to identify any error of law or illegality in order passed by Single Judge of High Court, warranting interference by Division Bench of High Court---Contents of FIR prima facie spelt out offence under provision of law pursuant to which FIR was registered---No embargo was placed under S. 13(3) of Official Secrets Act, 1923 which pertained to taking cognizance of an offence by a Court---Provisions of Civil Servants (Efficiency and Discipline) Rules, 2020 pertained only departmental action and could not substitute or preclude investigation or prosecution of a criminal offence---Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court in view of bar contained in proviso to S. 3(2) of Law Reforms Ordinance, 1972---Intra Court Appeal was dismissed, in circumstances.

Muhammad Mohsin Ghuman v. Government of Punjab 2013 SCMR 85; Muhammad Nazir v. Fazal Karim and others PLD 2012 SC 892; Nawazul Haq Chohan v. The State 2003 SCMR 1597; Karim Bibi v. Hussain Baksh PLD 1984 SC 344 and Hussain Can Company (Pvt.) Ltd. v. Federal Board of Revenue 2017 YLR Note 386 rel.

2023 M L D 83

[Islamabad]

Before Mohsin Akhtar Kayani and Saman Rafat Imtiaz, JJ

The STATE through Advocate General, ICT Islamabad---Appellant

Versus

MUHAMMAD AYAZ---Respondent

Criminal Appeal No. 303 of 2019, decided on 9th June, 2022.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 417---Qatl-i-amd, common intention---Appeal against acquittal---Appreciation of evidence---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of the brother of the complainant by firing---Motive behind the occurrence was stated to be that the accused suspected that the deceased was having an affair with his sister---In the present case, the Impugned Judgment showed that the trial Court acquitted the accused mainly due to the fact that the prosecution failed to corroborate the solitary statement of the complainant through cogent, reasonable, reliable and confidence inspiring evidence particularly in view of the fact that the complainant was an interested and chance witness---Reasons for concluding that the complainant was a chance witness was that the evidence presented created serious doubts about his presence at the place of occurrence and the benefit of the doubt given to the accused---First reason for doubting the complainant's presence at the place of occurrence was the contents of the FIR itself---As per the facts narrated by the complainant in the FIR which were reiterated by the complainant in his examination-in-chief, both the complainant and his deceased brother were present at their shuttering store at about 6.30 p.m., when his brother went to offer prayers at the nearby mosque---Record did not show that the complainant accompanied his brother to the mosque---Yet the complainant went on to allege that when the brother arrived at parking, the accused and his co-accused arrived on a motoreycle and shot the complainant's brother in front of the complainant---No explanation as to how he suddenly arrived at the scene was available on the record---Events that allegedly took place after the complainant's deceased brother left their shop were witnessed by the complainant was doubtful---Veracity of the complainant was also questionable given that he claimed that he had a shuttering store at National Police Foundation whereas witness who claimed to be the complainant's friend and neighbor stated in his cross-examination that the complainant's business was situated near some Hospital---Accused pointed out that Fauji Foundation Hospital, was very far from the place of occurrence---Furthermore no shuttering store was identified in the site plan---Investigating Officer admitted that he did not interrogate the complainant about the reason for his presence since there was no shuttering store---Duty officer at the relevant time stated in his examination-in-chief that a call was made to Rescue 15 at about 6:35 p.m., about a firing incident---Said witness stated further that he visited the spot where dead body of a person was lying in front of the parking area and meanwhile the complainant also reached there---Said testimony indicated that the complainant was not at the place of occurrence with the body when the SI/Duty Officer reached there---Said witness further revealed in his cross-examination the he did not observe any bloodstains on the clothes and hands of the complainant---Indeed it was unlikely that the complainant would not have been stained with the deceased brother's blood if he was in fact present at the time of his death and had rushed towards him after he had been shot as mentiotred, in the FIR---However, no independent witnesses were produced by the prosecution despite the fact that according to the Investigating Officer, people had gathered randomly at the place of occurrence who gave him divergent views about the place and distance of firing, thereby indicating that there were independent witnesses available---Under the facts and circumstances of the case, it was difficult to say that the prosecution proved its case beyond a shadow of doubt--- Appeal against acquittal was dismissed, in circumstances.

(b) Criminal trial---

----Benefit of doubt--- Any genuine doubt arising out of the circumstances of the case should be extended to the accused as a matter of right and not concession.

Nadeem alias Nanha alias Billa Sher v. State 2010 SCMR 949 rel.

Ishtiaq Ahmed, State counsel and Fakhar Abbas, S.I. for the State.

Faisal Bin Khurshid for Respondent with Respondent in person.

2023 M L D 180

[Islamabad]

Before Sardar Ejaz Ishaq Khan, J

MUHAMMAD FAYAZ---Petitioner

Versus

MUHAMMAD BANYAMEEN and 3 others---Respondents

Writ Petition No. 1089 of 2020, decided on 2nd June, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 99 & O.XIV, R.1---Constitution of Pakistan, Art. 199---Constitutional petition---New ground---Non-framing of issues---Irregularity not affecting merits of case---Concurrent findings of two Courts below---Suit and appeal for declaration and injunction filed by petitioner/plaintiff were dismissed by Trial Court and Lower Appellate Court respectively---Plea raised by petitioner/plaintiff was that leading of evidence without framing of issues was an illegality---Validity---Petitioner/plaintiff produced all evidence he wanted to his heart's content and then he wanted judgment in question to be reversed for it turning out against him---Provision of section 99 C.P.C. was fully attracted and neither any miscarriage of justice was found to have occurred nor merits of case stood affected to the prejudice of petitioner for decree to be reversed--- Not applying S. 99, C.P.C. would defeat the purpose of which S. 99, C.P.C. was enacted---Petitioner/plaintiff did not raise such ground in appeal before Lower Appellate Court and agitated it in Constitutional petition for the first time---Opportunity to produce further evidence was duly given to parties, which they elected to forego---If that were not the case one would have expected the same to be one of the strongest grounds in memo of appeal before Lower Appellate Court but such ground was not taken there---High Court to exercise Constitutional jurisdiction, illegality, failure or excess of jurisdiction, perverse exercise of discretion, material misreading of evidence and the like was have to be shown---High Court declined to reappraisal of evidence and maintained judgments and decrees passed by two Courts below---Constitutional petition was dismissed, in circumstances.

Farida Zafar Zehri and others v. Feroza Khanumn and others 2007 SCMR 726; Mst. Bhagul and 8 others v. Abdullah and others 2016 MLD 70; Karachi Electric Supply Company Limited v. Tri-Star Energy Limited PLD 2008 Kar. 572; Muhammad Ibrahim (deceased) through LRs and another v. Taza Gul and others 2020 SCMR 2033; Mian Arshad v. Election Tribunal PLD 1999 Lah. 392; Qazi Shamsur Rehman and another v. Mst. Chaman Dasta and others 2004 SCMR 1798 and Muhammad and 9 others v. Hashim Ali PLD 2003 SC 271 ref.

Muhammad Abdul Wase for Petitioner.

Asif Irfan for Respondent No. 1.

Ahmed Iqbal Maken for Respondent No. 2.

2023 M L D 201

[Islamabad]

Before Miangul Hassan Aurangzeb, J

RUBINA AMJAD---Petitioner

Versus

JAVAID SHAFIQUE SIDDIQUI and others---Respondents

Writ Petition No. 1412 of 2020, decided on 21st September, 2022.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), Ss. 39, 42 & 54---Decree, setting aside of---Principle---Educated woman---No allegation of fraud, misrepresentation and jurisdiction---Effect---Petitioner and respondents were brothers and sisters inter se and dispute pertained to family settlement of different properties subject matter of different civil suits---Petitioner received Rs.25 million and entered into total settlement resultantly suits were decreed accordingly---Validity---Decree could not be challenged on merits by filing application under S. 12(2), C.P.C., which was limited in scope and could be invoked for setting aside a decree on the ground of fraud, misrepresentation or want of jurisdiction---Court while dealing with application under S. 12(2), C.P.C. could not sit as court of appeal but had to see whether order, judgment or degree was obtained by fraud or representation, or was passed by a Court having no jurisdiction over the matter---Petitioner was not a downtrodden illiterate woman who could not appreciate import and meaning of agreement that she was signing---Petitioner was an educated woman who, 2 years and 9 months after the judgment and degree, had filed application under S. 12(2), C.P.C. in an effort to undo consequences of settlement agreement---One of the consequences of agreement in question was disposal of suits---Petitioner had received Rs.25 million from her brothers by virtue of that agreement---Increase in value of property in share from her mother after execution of settlement agreement could not become a valid cause under S. 12(2), C.P.C. for holding that judgment and decree was obtained by fraud---High Court declined to interfere in judgment and decree passed by Trial Court---Constitutional petition was dismissed, in circumstances.

Sandoz Limited v. Federation of Pakistan 1995 SCMR 1431; Al-Abdullah Construction (Pvt.) Ltd. v. WAPDA 2003 YLR 1535; Sardar Khan v. Muhammad Idrees PLD 2008 SC 591; Province of Punjab v. Muhammad Rashid 1988 MLD 2560; Office Incharge, Market Committee v. Arsalah Khan Brothers 2004 CLC 1427; Abdul Hakim v. Shamim Mushtaq 1986 CLC 2611; Muhammad Munir Ahmed v. Anwaar ul Haq 2020 YLR 232; Mazhar Majid v. Ather Majid 2021 YLR 651 and Izzat Khan v. Province of Sindh 1999 YLR 1180 ref.

Muhammad Nazir Jawad for Petitioner.

Ch. Muhammad Atiq and Ch. Muhammad Umar for Respondent No.1.

Syed Hasnain Ibrahim Kazmi, Muhammad Akram Shaheen and Kalsoom Akhtar for Respondent No.2.

Iqbal Hassan for C.D.A./Respondent No. 8.

Barrister Sara Seerat and Salaar Khan, Amici Curiae.

Danish Ali, OG-II, representative of Askari Bank Limited/ Respondent No. 6.

2023 M L D 242

[Islamabad]

Before Aamer Farooq and Sardar Ejaz Ishaq Khan, JJ

Syed ZAHEER HUSSAIN NAQVI---Appellant

Versus

ASIF RAZA MIR---Respondent

R.F.As. Nos. 201 of 2004 and 193 of 2005, decided on 13th June, 2022.

Specific Relief Act (I of 1877)---

----Ss. 12 & 29---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for specific performance of oral agreement to sell---Proof---Failure to produce witnesses---Appellant/plaintiff claimed to have entered into oral agreement for purchase of plot with respondent/defendant and stated to have paid earnest money through banking channels---Trial Court declined to decree specific performance of oral agreement and instead passed decree for return of money received by respondent/defendant---Validity---Defendant in his cross-examination flatly denied his signatures on receipt in confirmation of sale agreement and also denied his signatures on terms of agreement---Such receipts did not fall within the description of a writing recording financial or future obligations per Art. 17 of Qanun-e-Shahadat, 1984---Execution of such receipts after denial by defendant had to be proved but none of the witnesses to those receipts were produced nor any reason given as to why they were not---Discounting the receipts from consideration, appellant/plaintiff's stance carried no more weight than the defendant's that payments made were towards pre-advance---Oral agreement had to be proved with sufficient certainty and plaint must specify witnesses and circumstances under which oral agreement was made---As such it was not only for existence of the agreement but also for its terms and conditions---High Court maintained findings of Trial Court but amended quantum of damages and decree was accordingly modified---Appeal was dismissed, in circumstances.

Moiz Abbas v. Mrs. Latifa 2019 SCMR 74; 2019 SCMR 524; 2013 SCMR 1300; Raja Nasir Khan v. Abdul Sattar Khan and another PLD 1998 Lah. 20; Muhammad Ashiq Khan v. Muhammad Sharif and others 2016 SCMR 1248; Nirmala Anand v. Advent Corporation Pvt. Ltd. and others AIR 2002 SC 2290; Muhammad Hafeez Khan v. Globe Manufacturing Co. Ltd 1987 CLC 482; TERNI S.P.A. v. PECO (Pakistan Engineering Company) Ltd. 1992 SCMR 2238; Raja Muhammad Sadiq and 9 others v. WAPDA through Chairman, and 3 others PLD 2003 SC 290 and Messrs Farooq Brothers v. UBL and others, Shariat Petition No.30-L of 1991 ref.

Zaheer Bashir Ansari for Appellant.

Zulfiqar Khalid Maluka for Respondent.

2023 M L D 279

[Islamabad]

Before Arbab Muhammad Tahir, J

Mst. SOBIA SHAHEEN---Petitioner

Versus

MUHAMMAD USMAN and another---Respondents

Writ Petition No. 323 of 2020, decided on 11th May, 2022.

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

----S. 5, Sched.---Suit for recovery of dower---Jirga decision, validity of---Scope---Petitioner filed suit for recovery of dower in the shape of gold ornaments and maintenance for the period of iddat---Trial Court decreed the suit whereas Appellate Court dismissed the suit to the extent of dower and decreed the same to the extent of maintenance allowance---Validity---Jirga proceedings were the bone of contention between the parties---Petitioner had alleged that no gold ornaments in lieu of dower were given to her while, on the contrary, respondent had claimed that all issues were settled in the jirga---One of the attesting witnesses of jirga proceedings had supported the petitioner by stating that no ornaments were given to the petitioner pursuant to the jirga proceedings rather only an amount of Rs. 1 lac had been paid to her---Respondent was required to prove the contents of affidavit signed during jira proceedings by producing at least two marginal witnesses of the document but no such efforts were made---Settlement through the intervention of members of the locality was not approved by any court of law, therefore, it could not be said that the petitioner was bound by its terms and conditions as a force of law nor she was compelled to do so---Constitutional petition was allowed, judgment and decree passed by Appellate Court was set aside and that of Trial Court was restored, in circumstances.

(b) Administration of justice---

----Jirga decision---Not protected by any law---Execution of the orders of jirga---Scope---Matters referred to a jirga to settle the dispute or effect a compromise between the parties without the permission of the Court would not have blessing or backing of the Court, therefore, action will not be protected by the law.

Shazia Bibi v. State 2004 PCr.LJ 1523 ref.

Rana Liaqat Hayat for Petitioner.

Javed Iqbal Mangral for Respondents.

2023 M L D 307

[Islamabad]

Before Athar Minallah, C.J. and Aamer Farooq, J

Syed MUHAMMAD AYUB SHAH and others---Petitioners

Versus

REGISTRAR COOPERATIVE SOCIETIES DEPARTMENT and others---Respondents

Writ Petitions Nos. 2406, 3681 of 2020 and Criminal Original No. 20 of 2022, decided on 9th December, 2022.

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

----S. 64-A---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Alternate remedy, availing of---Effect---Petitioners were aggrieved of holding of elections in violation of Islamabad Capital Territory Cooperative Societies Managing Committee (Election) Rules, 2014---Respondents pointed out that alternate remedy was availed by the petitioners under S. 64-A of Co-operative Societies Act, 1925---Validity---Revision petition was filed against the order impugned in writ petition but the revision petition was subsequently withdrawn---Withdrawal was made after writ petition had been filed and entertained by the High Court---Rationale and reason for doing of the same was not understandable---Section 64-A of Co-operative Societies Act, 1925 did provide for the revisional powers of the Provincial Government or the Registrar, as the case may be---Points agitated in the revision petition were quite the same as in the present petition---Where the order was without jurisdiction or patently illegal, a petition under Art. 199 was maintainable, but since remedy was availed in the matter mere assertion that writ was a more appropriate remedy was not really a plausible argument in the facts and circumstances, especially when revisional authority had all the powers to set aside the impugned order---Writ petition was dismissed.

Zia Ullah Shah v. Muhammad Khaqan and others 2018 MLD 1869; Sheikh Rashid Ahmed v. D.M. Rawalpindi and others PLJ 2004 Lah. 1221; Khalid Mehmood v. Collector of Customs 1999 SCMR 1881; Syed Match Company Limited v. Authority under the Payment of Wages Act and others 2003 SCMR 1493 and Farzand Raza Naqvi v. Muhammad Din and others 2004 SCMR 400 ref.

Abu Zar Salman Khan Niazi and Wasim Abid for Petitioners.

Abdul Wahid Qureshi for Respondents.

Zohaib Hassan Gondal, State Counsel.

Fazal Hussain for Applicant (in C.M. No. 3147 of 2020).

Applicant in person (in C.M. No. 3347 of 2020).

2023 M L D 323

[Islamabad]

Before Aamer Farooq and Sardar Ejaz Ishaq Khan, JJ

INTERWORLD COMMUNICATION PRIVATE LIMITED through Authorized Representative---Appellant

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY through Chairman, PTA and another---Respondents

I.C.A. No. 186 of 2018, decided on 5th April, 2022.

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

----S. 4---Functions of the Authority---Scope---Question before High Court was whether the Pakistan Telecommunication Authority (PTA) could withhold issuance of service commencement certificates to the petitioner for certain telecom regions pending the adjudication of disputed dues for Access Promotion Contribution (APC) for Universal Service Fund (USF)---Held; by issuing the impugned letter, PTA was saying that, regardless of the merits of the petitioner's defence to the demand for payment of APC for USF, PTA would not issue the commencement certificate, and in doing so, it would not let the customers of the concerned telecom regions benefit from the services of additional operators---Such was an egregious excess beyond the statutory mandate of PTA which, inter alia, obligated PTA to promote the availability of a wide range of high quality, efficient, cost effective and competitive telecommunication services under S. 4(1)(d) of the Pakistan Telecommunication (Re-organization) Act, 1996---PTA had extensive statutory powers to take recovery and enforcement actions once disputed dues were adjudicated and found due, but there was no mandate with the PTA to stop commencement of services in the meantime and render nugatory the substantial investments made by its licensees in the network and other facilities---Appeal was allowed, impugned judgment was set aside and the PTA was directed to issue the service commencement certificates to the petitioner.

Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193 rel.

Muhammad Shahzad Shaukat for Appellant.

2023 M L D 437

[Islamabad]

Before Babar Sattar, J

FIDA HUSSAIN WARRAICH---Appellant

Versus

Syed ZARFAN HUSSAIN SHAH---Respondent

Regular First Appeal No. 321 of 2020, decided on 31st October, 2022.

Civil Procedure Code (V of 1908)---

----Ss. 35, 35-A & 34-B [as amended by Costs of Litigation Act (XVII of 2017)]---Recovery of damages and litigation costs---Malicious prosecution---Civil litigation---Scope---Dispute between parties related to right of appellant/defendant to continue to use a parcel of land adjacent to his property that respondent/plaintiff claimed was his---Validity---Held, there could be civil proceedings that had undermined right of liberty at an interlocutory or final stage or right to property and/or reputation such as in a claim alleging bankruptcy or failure to abide by financial obligations---Such civil claims, which raised questions regarding probity and honesty of conduct of a claimant, could have consequences for reputation of such claimant, which might not be made whole simply by grant of litigation costs at the end of proceedings---Such was in the context of civil proceedings of such nature (which infringe upon the right to liberty and/or dignity/ reputation and property of a party forced to defend his/her conduct in civil proceedings) that had inflicted damage on appellant/defendant that could lead to a claim for malicious prosecution of civil proceedings---Nature of proceedings between parties was not such that could possibly undermine liberty or reputation of respondent/plaintiff---One of the ingredients in the test for malicious prosecution was not satisfied to the extent that respondent/plaintiff had incurred financial costs during civil proceedings in question---Appropriate remedy for relevant Court was to grant costs to respondent/plaintiff under provisions of Ss. 35, 35-A & 35-B, C.P.C. as amended through Costs of Litigation Act, 2017---For purposes of recovering litigation costs and/or costs in relation to any inconvenience suffered by respondent/plaintiff, no independent cause of action for recovery of damages for tort of malicious prosecution of civil proceedings accrued to respondent/plaintiff---Mere failure of one party to prove a civil claim did not create automatic right for contesting party to bring suit for malicious prosecution---To find otherwise could function as a major deterrent discouraging citizens from employing process of law to try their rights and could become a fetter on the right of access to justice, apart from creating further litigation even after the matter was laid to rest in civil proceedings---High Court set aside judgments and decrees passed by two Courts below in favour of respondent/plaintiff---Appeal was allowed, in circumstances.

Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Niaz and others v. Abdul Sattar and others PLD 2006 SC 432; Haji Muhammad Shafi v. Mst. Hamidan 1990 MLD 597; Mohammad Amin v. Jogendra Kumar Bannerjee AIR (34) 1947 Privy Council 108; Malil Wasil v. Mumtaz-ur-Rehman and others 2007 CLC 1174; Mohammad Sharif v. Nawab Din and another PLD 1957 Lah. 283; Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6; Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478; Muhammad Yousaf v. Ghayyur Hussain Shah 1993 SCMR 1185; Messrs Mehran Electronics Company through Partner v. National Bank of Pakistan 2017 CLD 1642; Nawab Sher v. Ismaeel 2020 MLD 14; Afroz Qureshi v. Muhammad Ikram Siddiqui 1995 CLC 735; Abdul Rauf v. Abdul Razzaq PLD 1994 SC 476; Dr. Seema Irfan and 5 others v. Federation of Pakistan through Secretary and 2 others 2019 PTD 1678; Abbu Hashim and another v. Federation of Pakistan through Secretary, Ministry of Interior and 2 others PLD 2021 Sindh 492;Willers v. Joyce and another 2016 UKSC 43; Savile v. Roberts (1698) 12 Mod Rep 208; Bromage v. Prosser (1825) 4 B&C 247 and De Medina v. Grove (1847) 10 QB 172 ref.

Ashfaq Ahmad Khan for Appellant.

Babar Saeed Butt for Respondent.

2023 M L D 505

[Islamabad]

Before Sardar Ejaz Ishaq Khan, J

Messrs APLOI (PRIVATE) LIMITED through Authorized Representative---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Interior, Pakistan Secretariat, Constitutional Avenue, Islamabad and 4 others---Respondents

Writ Petition No. 3933 of 2022, decided on 19th December, 2022.

(a) Public Procurement Rules, 2004---

----Rr. 33, 38 & 44---Procurement contract---Rejection of bids---Purchase order conditional upon a formal definitive contract---Petitioner was aggrieved of cancellation of tender for the supply, installation, commissioning, support, maintenance and upgradation of servers and software for issuing dematerialized identity cards with cryptographic-hash-based dynamic QR authentication codes---Contention of petitioner was that rejection of the bids could occur only prior to the acceptance of bids (Rule 33); that the petitioner's bid was the most advantageous one (Rule 38) and that the procurement contract had 'come into force' on the date the notice of acceptance of bid vide purchase order was given (Rule 44)---Validity---Rule 33 could not be turned on its head to say that just because a bid could not be rejected after it was accepted, it became mandatory for a procuring agency to proceed with a procurement when it no longer desired to---What R. 33 meant to convey was that, amongst competing bids, if any bid was to be rejected, then that was to be done before any was accepted---Rule 38 was also premised on the ground that procurement was going ahead and clarified that the most advantageous bid was to accepted in that case; it did not mandate that the procurement itself became mandatory for the procurer---Effectiveness of a contract of procurement under R. 44 was subject to the condition "where no formal signing of a contract is required…"---Purchase order in the instant case was unequivocally conditional upon a formal definitive contract being signed---Constitutional petition was dismissed.

(b) Public Procurement Rules, 2004---

----R. 44--- Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Procurement contract---Petitioner was aggrieved of cancellation of tender for the supply, installation, commissioning, support, maintenance and upgradation of servers and software for issuing dematerialized identity cards with cryptographic-hash-based dynamic QR authentication codes---Contention of petitioner was that it was not necessary to sign a contract and that the purchase order itself contained the contract---Contention of respondent was that software supply, installation and maintenance contracts went into minute details in relation to the performance of the solution as well as other matters such as on-going maintenance and troubleshooting in the software once installed; that a mere purchase order in itself rarely met the requirements of such contracts and that was why the purchase order was issued subject to a definitive binding contract being signed, which was yet to be signed and that it was a basic legal rule that an agreement to agree did not create a concluded and enforceable contract---Validity---Even if it was assumed for sake of arguments that a contract was concluded when the purchase order was issued, even then the remedy for its breach laid in a suit and not by way of a constitutional petition---Constitutional petition was dismissed.

Messrs Fast Track v. FIA and others 2021 CLC 1160 distinguished.

(c) Public Procurement Rules, 2004---

----R. 36--- Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Procedures of open competitive bidding---Information provided in technical proposal used by procuring agency after cancellation of tender---Petitioner was aggrieved of cancellation of tender for the supply, installation, commissioning, support, maintenance and upgradation of servers and software for issuing dematerialized identity cards with cryptographic-hash-based dynamic QR authentication codes---Contention of petitioner was that his entire information was with the respondent and that the respondent had capitalized on that information to develop the solution in-house---Held, that even if the allegation of the petitioner was assumed to be true it still did not translate into any legal right to be enforced in the constitutional jurisdiction---If the respondent while developing the in-house solution had used any proprietary know-how of the petitioner that constituted intellectual property protected against unauthorized use by the intellectual property laws, then the petitioner had a remedy under such laws---Such contention was denied by the respondent by stating that no protected intellectual property not available in the public domain was received as a consequence of the petitioner's proposal---Constitutional petition was dismissed.

(d) Public Procurement Rules, 2004---

----R. 44---Procurement contract---Cancellation of tender---Opportunity of hearing---Scope---Petitioner was aggrieved of cancellation of tender for the supply, installation, commissioning, support, maintenance and upgradation of servers and software for issuing dematerialized identity cards with cryptographic-hash-based dynamic QR authentication codes---Contention of petitioner was that an opportunity of hearing was not given before abandonment of the project by the respondent---Validity---No adverse order against the petitioner was passed for it to be heard first---Petitioner had an expectation of winning the contract, if the project was going ahead, but by no means it could be held that the petitioner by submitting the bid acquired the right that the project must be implemented by respondent using external suppliers---No bidder had an unqualified right for a project to be implemented---Present case was not a case of rejection of a bid, as dressed up by the petitioner, but one of abandonment of an externally sourced project---Constitutional petition was dismissed.

Muhammad Ahmad Pansota for Petitioner.

Hafiz Ahmad Rasheed, A.A.G. for Respondent No. 1.

2023 M L D 674

[Islamabad]

Before Babar Sattar, J

WSKB OPERATOR PRIVATE LIMITED through Authorized Representative---Petitioner

Versus

NATIONAL HIGHWAY AUTHORITY through Chairman and 20 others---Respondents

Writ Petition No. 1489 of 2022, heard on 1st September, 2022.

(a) Public Procurement Rules, 2004---

----R. 48(7)---Grievance Redressal Committee---Appellate Forum---Jurisdiction---As an appellate dispute resolution forum created under R. 48(7) of Public Procurement Rules 2004, the Authority is only vested with authority that flows to it from the Public Procurement Regulatory Authority Ordinance, 2002 and the Rules framed thereunder---Public Procurement Regulatory Authority is neither a court nor is vested with authority to issue judgments within the meaning of term as defined in S. 2(9), C.P.C.---Public Procurement Regulatory Authority has no authority to issue judgments in rem as it is not a part of judicial branch of State and is not vested with authority to render declarations regarding rights and liabilities of parties in general---Public Procurement Regulatory Authority, under R. 48(7) of Public Procurement Rules, 2004 is vested with limited authority to sit in judgment over the decision rendered by Grievance Redressal Committee of procuring agency to consider correctness or lack thereof of such decision in accordance with provisions of Public Procurement Regulatory Authority Ordinance, 2002 and Public Procurement Rules, 2004 in its capacity as a regulator of the public procurement process.

(b) Public Procurement Rules, 2004---

----R. 48--- Qanun-e-Shahadat (10 of 1984), Art. 114--- Tender---Redressal of grievance---Terms and conditions of procurement proceedings---Estoppel, principle of---Applicability---Failure to raise any objection---Petitioner company after having lost the tender, assailed procurement process on the plea of defective terms and conditions---Validity---Once petitioner had chosen to participate in contest subject to certain terms and conditions, it could not seek to have the contest annulled after it was found to have lost in an evaluation carried out in accordance with the terms and conditions prescribed for such contest---Petitioner submitted its bid without challenging terms and conditions of bidding documents under R. 48(2) of Public Procurement Rules, 2004 and was consequently estopped from challenging such terms and conditions of the tender after evaluation of the bid, once it was declared pursuant to such evaluation that the petitioner was not the successful bidder---Petitioner failed to establish that the manner in which its bid was evaluated, pursuant to terms of the tender, was discriminatory or suffered from illegality---High Court declined to interfere in procurement proceedings---Constitutional petition was dismissed, in circumstances.

Echo West International (Pvt.) Ltd. Lahore v. Government of Punjab and others 2009 CLD 937; Messrs S.I.S. Corporation (Pvt.) Ltd. v. Federation of Pakistan and others PLD 2018 Isl. 150; Gemalto General Trading LLC v. Federation of Pakistan and others (W.P No. 2954 of 2020); Nikhil Ch. Das and others v. State (W.P No.4575(W) of 2010); OM Parkash Shukla v. Akhilesh Kumar Shukla AIR 1986 SC 1043 and Tez Gas (Private) Limited v. OGRA and others PLD 2017 Lah. 111 ref.

Syed Riaz Hussain for Petitioner.

Barrister Masood Raza for NHA.

Abdul Rehman Khan for Respondents Nos. 4 and 5.

Malik Akhlaq Ahmed Awan for Respondent No.3.

Sardar Sami Ahmed, Director (Revenue), Asad Rehman, AD Legal and Aurangzaib, AD (Revenue), NHA.

Abdul Nabi, Director (Legal), M. Khurshid, DD Legal and Noor ul Najam Chaudhry, Assistant Legal, PPRA.

2023 M L D 708

[Islamabad]

Before Sardar Ejaz Ishaq Khan, J

SOHAIL NIAZ GILL---Petitioner

Versus

SENIOR CIVIL JUDGE, ISLAMABAD and others---Respondents

Writ Petition No. 3533 of 2020, decided on 16th February, 2022.

Civil Procedure Code (V of 1908)---

----O. XVII, Rr. 1, 2 & 3---Court may grant time and adjourn hearing---Costs of adjournment---Principles governing exercise of discretion, detailed.

Application of Rule 1 of Order XVII, C.P.C. is not excluded in the circumstances enumerated in Rule 2 or Rule 3; the language used in all the three Rules for the action to be taken by the Court in the events enumerated therein is permissive, and that is for a good reason. Therefore, a Court resorting to Rule 1 to impose costs in situations enumerated in Rule 2 or Rule 3 instead of limiting itself to the actions expressly stated in the latter two Rules would be acting quite within the four corners of Order XVII. An escalating costs order may compensate the plaintiff to some extent and also avoid the delay due to an appeal or a writ.

It may be that on a subsequent date, there are genuine reasons for not being able to progress with the suit. The onus will be on the party claiming the genuine reason. If one were to seek a rubric to capture the substantial variety of tests in the case law, it would be the test of contumacy. But the party claiming a genuine reason on an adjourned date will still remain liable to pay the costs for the previous adjournment. If the contumacy persists beyond the last few cost-based adjournments, the trial Court's actions stipulated in Rules 2 and 3 would be unimpeachable, provided care is taken in choosing the right action. The foremost difference between Rules 2 and 3 lies in the stage the suit has reached. If there isn't sufficient material on record for the Court to render a decision, the Court can move under Rule 2 or pass an order for costs under Rule 1 where an escalating costs order is not passed earlier. If recording of evidence has begun and there is sufficient material on record for the Court to render a decision, then the Court is to proceed under Rule 3.

PLD 1969 SC 270 and 2008 SCMR 942 ref.

The most-cited principle in appeals and writs that a case should be decided on merits is displaced where a party's own contumacious conduct stands in the way of the application of that principle, and that the Court has available to it the tool of costs for adjournment under Rule 1 which may be used with an increasing order of severity for a few occasions preceding the more severe orders of closing the right to evidence of a party and the like under Rules 2 and 3 of Order XVII.

Khurram Jamshed Chughtai and Yasir Ali for Petitioner.

Ex parte for Respondents Nos. 5 and 6.

2023 M L D 793

[Islamabad]

Before Tariq Mehmood Jahangiri and Babar Sattar, JJ

AQEEL MIRZA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 179 of 2022, decided on 21st November, 2022.

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

----Ss. 9(c) & 34---Criminal Procedure Code (V of 1898), S. 516-A---Transportation of narcotics---Articles connected with narcotics---Order for custody and disposal of property pending trial in certain cases---Scope---Appellant assailed order passed by Trial Court whereby his application for superdari of vehicle, from which narcotics was recovered, was dismissed---Appellant had taken self-contradictory pleas regarding the person having possession of the vehicle---Appellant could not produce any convincing evidence to the effect that he had no knowledge of the occurrence---Prima facie, the appellant was in knowledge that his vehicle was being used for carrying huge quantity of narcotics---Appellant was not entitled for superdari of the vehicle---Appeal was dismissed.

2010 SCMR 1181; 2020 MLD 606 and Abdul Salam v. State 2003 SCMR 246 distinguished.

Amjad Ali Khan v. The State and others PLD 2020 SC 299 ref.

Imran Shaukat Rao for Appellant.

2023 M L D 880

[Islamabad]

Before Babar Sattar, J

LIAQAT ALI KHAN---Petitioner

Versus

FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION through Chairman and 6 others---Respondents

Writ Petition No. 3370 of 2022, decided on 14th January, 2023.

Federal Board of Intermediate and Secondary Education Act (LXVIII of 1975)---

----S. 8(2)(f), (h)---Education institution---Affiliation, withdrawal of---Pre-conditions---Petitioner was aggrieved of withdrawal of provisional affiliation of his college by Federal Board of Intermediate and Secondary Education---Validity---Show cause notice and order in question were issued by one of the Directors of the Board, who was vested with no authority under Federal Board of Intermediate and Secondary Education Act, 1975, to issue such show cause notice or order in question---Even if show cause notice and order for withdrawal of affiliation was issued by Director on the direction of Chairman, the Chairman was also vested with no authority to issue the order, as power to withdraw affiliation were vested with the Board of Governors and was to be exercised after grant of prior approval from Federal Government in accordance with S. 8(2)(f) of Federal Board of Intermediate and Secondary Education Act, 1975, after ordering an inspection for such purpose---High Court set aside order of withdrawal of affiliation as the same was coram non judice---Constitutional petition was allowed, in circumstances.

Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 rel.

Ajmal Raza Bhatti for Petitioner.

Ch. Imtiaz Ahmed for Respondents Nos. 1 to 4.

Mahmood ul Hassan, Superintendent (Legal) FBISE, Islamabad.

2023 M L D 1273

[Islamabad]

Before Babar Sattar, J

Professor Dr. MUHAMMAD NAEEM KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Kashmir Affairs

and Gilgit-Baltistan and others---Respondents

Writ Petition No. 3483 of 2022, decided on 28th February, 2023.

University of Baltistan Order, 2016---

----Ss. 11(2) & 11(3), proviso---Rules of Business, 1973, R. 15-A (1), Serial 48---General Clauses Act (X of 1897), S. 24-A---Constitution of Pakistan, Arts. 48 & 199--- Constitutional petition--- Powers of President---Persona designata---Scope---Dispute was with regard to rejecting of panel of candidates for the post of Vice Chancellor of University of Baltistan by President of Pakistan as persona designata---Validity---President or Governor exercise such powers as persona designata and are not bound by the provisions of the Constitution---Even where a statute vests power in the President or the Governor as persona designata, and such power is to be exercised on the advice of Prime Minister or Chief Minister, the President or the Governor would not be bound by such advice in discharge of any particular power or function that is quasi-judicial in nature---President passed an order rejecting summary for appointment of a Vice Chancellor and sought a fresh panel of individuals to be considered for purposes of appointment to the office of Vice-Chancellor of the University---President exercised his authority as persona designata---While doing so he was under an obligation to furnish reasons in accordance with the requirements of S. 24-A of General Clauses Act, 1897---High Court set aside decision of the President in his capacity as Chancellor as the same was devoid of any reasoning and had fallen foul of S. 24-A of General Clauses Act, 1897---High Court remanded the matter to Federal Government and directed that summary proposed by the University would be deemed to be pending before the President, who would be well within his right to seek a fresh panel of candidates, if he was dissatisfied with the quality of candidates proposed to him for appointment as Vice-Chancellor; that President was to exercise such power pursuant to the proviso to S. 11(3) of University of Baltistan Order, 2016, through a reasoned order in accordance with requirements of S. 24-A of General Clauses Act, 1897---Constitutional petition was allowed accordingly.

Rana Aamer Raza Ashfaq v. Dr. Minhaj Ahmad Khan 2012 SCMR 6; Dr. Shahid Mehboob Rana v. Province of Punjab through Secretary and 2 others 2010 PLC (C.S.) 769; Tahir Riaz Chaudhry v. Chancellor, University of the Punjab, Lahore PLD 2013 Lah. 476; Dr. Ilyas and another v. Government of Balochistan through Chief Secretary PLD 2022 Bal. 58; The Chancellor, Mirpur University of Science and Technology/President Azad Government of the State of Jammu and Kashmir v. Dr. Iqrar Ahmed Khan 2021 PLC (C.S.) Note 3; The State v. Zia-Ur-Rehman PLD 1973 SC 49; Sardar Muhammad Ayub v. Secretary, S&GAD 2000 YLR 2868; Dr. Razia Sultana v. Professor Dr. Ghazala Yasmeen Nizam 2016 SCMR 992; Professor Dr. Ghazala Yasmeen v. Chancellor Shaheed Banazeer Bhutto Women University, Khyber Pakhtunkhwa 2016 PLC (C.S.) 686; Dr. Iqrar Ahmad Khan v. Government of the Punjab through Secretary Agricultural Department, Lahore and others 2020 PLC (C.S.) 1087; Dr. Iqrar Ahmad Khan v. Dr. Muhammad Ashraf 2021 SCMR 1509; University of the Punjab v. Ch. Sardar Ali 1992 SCMR 1093; Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189; Dr. Zahid Javed v. Dr. Tahir Riaz Ch. PLD 2016 SC 637; Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189; Mushtaq Ahmad Sukhera v. President of Pakistan through Secretary and others PLD 2020 Isl. 1; Bros v. York, Newcastle and Berwick R.Y. CO. (1849) 18 L.J.Q.B. 1999 and Dr. S.C. Barat v. Hari Vinayak Pataskar AIR 1962 Madhya Pradesh 180 ref.

Raja M. Aleem Khan Abbasi and Raja Adeeb Ahmed Abbasi for Petitioner.

Aqeel Akhtar Raja, Assistant Attorney General, Fahmeen Aslam, S.O, Ministry of Kashmir Affairs and Gilgit-Baltistan and Waseem Ullah Jan, Registrar University of Baltistan, Skardu for Respondents.

2023 M L D 1324

[Islamabad]

Before Miangul Hassan Aurangzeb and Babar Sattar, JJ

DIRECTOR OF WORKS/ CHIEF ENGINEER (NAVY)---Appellant

Versus

Messrs OMER FAROOQ ENGINEERING COMPANY through Director---Respondent

F.A.O. No. 56 of 2019, decided on 24th May, 2023.

Arbitration Act (X of 1940)---

----Ss. 14, 30 & 39---Arbitration---Generalized nature of objections against award---Effect---Appellant was aggrieved of order passed by Trial Court dismissing objections filed against award and making it Rule of the Court---Validity---Objections to award filed by appellant under S. 30 of Arbitration Act, 1940, before Trial Court were cryptic and perfunctory---Objections were full of generalizations and did not deal with specific aspects of the award---This was equally true of the grounds taken by appellant in memorandum of appeal---Appellant in the grounds of his appeal filed before High Court did not point out any specific infirmity with the award, except making generalized challenges---There was no patent illegality appearing on the face of award and Arbitrator had amply referred to the evidence while deciding each of the claims before him---All claims and counter claims were decided on the basis of the documentary evidence placed and proved before Arbitrator---High Court declined to interfere in order passed by Trial Court whereby appellant's objections to the award were spurned and award was made a Rule of Court---Appeal was dismissed, in circumstances.

Federation of Pakistan v. Messrs Joint Venture Kocks K.G./RIST PLD 2011 SC 506 and National Fibres Ltd. v. Pakistan PLD 2004 Lah. 722 rel.

Malik Shaukat Nawaz Awan and Raja Muhammad Jawad Arslan, Assistant Attorney General for Appellant.

Sardar Tariq Mehmood Bashir for Respondent.

2023 M L D 1417

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Chaudry FAWAD HUSSAIN and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 1569 of 2023, decided on 16th May, 2023.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Preventive detention---Opportunity to approach Court to seek bail before arrest---Arrest in criminal case, restraining of---Petitioner was arrested on the allegation of causing threat to public order---Validity---Order under S. 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, could not be based on conjectures and surmises---Such order should be based on concrete and tangible evidence---Grounds on the basis of which detention order of a person was issued must be supported by sufficient and cogent material of the nature as would satisfy an ordinary prudent person to justify issuance of order of preventive detention---High Court declared detention order issued by District Magistrate as well as arrest of petitioner unlawful in presence of earlier order passed by High Court---High Court directed the authorities to release petitioner forthwith from the custody---Petitioner submitted undertaking to the effect that he would in no manner resort to violence or incite any violence and would not join any violent protest and abide by restrictions placed in order passed under S. 144, Cr.P.C.---High Court also restrained authorities for two days from arresting petitioner in another criminal case already registered against him, so as to enable him to approach relevant Court to seek bail before arrest---Constitutional petition was allowed, in circumstances.

Maulvi Farid Ahmad v. Government of Pakistan PLD 1965 Lah. 135 and Federation of Pakistan v. Amatul Jalil Khawaja PLD 2003 SC 442 rel.

Dr. Babar Awan, Tanvir Hussain Rajput, Hassan Sajjad, Murtaza Turi, Malik Tariq Noon, Zakria Arif, Ayesha Khalid, Naheed Awan, Qurat ul Ain Ayesha and Saeed Khan Sadozai for Petitioners.

Petitioner No.1 in police custody.

Munawwar Iqbal Duggal, Additional Attorney General along with Muhammad Iqbal Kalluh and Malik Shaukat Nawaz, Assistant Attorney General.

Barrister Jehangir Khan Jadoon, Advocate General, Islamabad along with Malik Abdur Rehman, Rabi Bin Tariq, Mian Zain-ul-Abidin Qureshi, Malik Fahad Ali, Kashif Hussain Shah, State Counsel.

Irfan Nawaz Memon, Deputy Commissioner, ICT.

Tahir Kazim, Law Officer, ICT Police.

Khalid Mehmod Awan, DSP, ICT Police.

Imran Riaz, Assistant Superintendent, Central Jail Adyala, Rawalpindi.

2023 M L D 1837

[Islamabad]

Before Miangul Hassan Aurangzeb, J

AHMAD NAWAZ KHAN---Petitioner

Versus

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

Writ Petition No. 1593 of 2023, decided on 18th May, 2023.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3--- Detention--- Pre-conditions--- Application of independent mind---Scope---Petitioner assailed detention of his uncle under S. 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, by the authorities---Validity---Order under S. 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, could not be based on conjectures and surmises and was to be based on concrete and tangible evidence---Grounds on the basis of which detention of a person was issued must be supported by sufficient and cogent material of the nature as would satisfy an ordinary prudent person to justify issuance of an order of preventive detention---It was only where there was sufficient and cogent material against a person that issuance of a preventive detention order could be justified---This was essential prerequisite for issuing an order under S. 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, and the same was lacking against the detenue in the present case---High Court directed the authorities to release the detenue as preventive detention order against him was unlawful, issued without application of independent mind and resultantly the same was set aside---Constitutional petition was allowed in circumstances.

Maulvi Farid Ahmad v. Government of Pakistan PLD 1965 Lah. 135 and Federation of Pakistan v. Amatul Jalil Khawaja PLD 2003 SC 442 ref.

PLD 1969 SC 210; 1994 SCMR 1532 and PLD 1963

Lah. 109 rel.

Barrister Taimur Altaf Malik, Barrister Ali Naveed Arshad, Barrister Faiza Asad, Rizwan Shabbir Kiyani and Rida Zaman for Petitioner.

Malik Shaukat Nawaz Awan, Assistant Attorney General, Malik Abdur Rehman, State Counsel and Muhammad Riaz, DSP (Legal), Islamabad Police for Respondents.

2023 M L D 1901

[Islamabad]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

MUHAMMAD MUJTABA KHAWAJA---Appellant

Versus

Khawaja AZAM ALI and others---Respondents

R.F.A. No. 39 of 2014, decided on 27th June, 2023.

Specific Relief Act (I of 1877)---

----Ss. 42, 39 & 54---Suit for declaration, cancellation of documents, possession and permanent injunction---Oral gift---Ingredients---Title document, execution of---Proof---Suit of plaintiff was dismissed wherein he claimed his right of inheritance from the house and for cancellation of the transfer letter issued by the Capital Development Authority ('C.D.A') vide which his late father had transferred suit-house by gift in favour of three sons only, excluding him (the plaintiff) and four daughters---Validity---Record revealed that the donor (deceased father)himself had applied to C.D.A adopting prescribed procedure for the transfer of the suit-house by gift in favour of his four sons excluding one son (the plaintiff/appellant) and four daughters---One of the sisters (defendant/respondent), who asserted to accompany her father at the relevant office(s), deposed successfully the procedure her father had adopted for the purpose; which deposition could not be shaken in cross-examination by the plaintiff/appellant---Another sister (defendant/respondent) deposed that no daughter/sister had challenged the gift-in-question as all excluded siblings, who were not made beneficiaries of gift-in-question, had already been compensated by the father---Onus of proof was on the beneficiaries of the gift deed to prove its execution and that all essential of valid gift (i.e. offer, acceptance and delivery of possession) had been fulfilled---For the relevant areas of the Islamabad Capital Territory , the transfer letter issued by the C.D.A had the status of a title document---Even otherwise, transfer of the suit-house was not made merely on the submission of the memorandum of the oral gift but also on the basis of donor/father's declaration of the oral gift having been duly recorded by the C.D.A---According to the contents of said memorandum, the oral gift was made by the father on the occasion of Eid-ul-Fitr which date was prior to the declaration of the oral gift made by him before the C.D.A on subsequent date---Said memorandum was in the nature of an acknowledgment of an oral gift which was reiterated or re-declared by the donor/father before the C.D.A---Plaintiff/ appellant had failed to prove his assertion---No non-reading/mis-reading of evidence, illegality or infirmity was noticed in the impugned judgment and decree passed by the single bench of the High Court---Appeal was dismissed, in circumstances.

Saadia v. Gul Bibi 2016 SCMR 662; Bilal Hussain Shah v. Dilawar Shah PLD 2018 SC 698; Abdul Ghaffar v. Ghulam Jan PLD 1975 Pesh. 12; Shafqat Parveen v. Iftikhar Amjad 2012 SCMR 1602; Nighat Waheed v. Arif Latif 2023 CLC 593; Daran Bibi v. Muhammad Akbar 2019 CLC 859; Muhammad Mukhtar v. Zubaida 2017 CLC 1731 and Abdul Hameed v. Abdul Ghafoor 2011 MLD 1836 ref.

Ali Nawaz Kharal for Appellant.

Raja Zafar Khaliq Khan for Respondents Nos. 1 to 6.

Imran Haider Shah for Respondent No. 7.

2023 M L D 1945

[Islamabad]

Before Arbab Muhammad Tahir, J

PAKISTAN ENGINEERING COUNCIL through Chairman and 3 others---Petitioners

Versus

FEDERAL INVESTIGATION AGENCY through Director General and 10 others---Respondents

Writ Petition No. 2379 of 2017, decided on 28th December, 2022.

(a) Interpretation of statutes---

----Inconsistency in laws---Principle---In case of any inconsistency between provisions of two statutes in respect of a matter, the provisions of a statute enacted later in time prevail.

Saiyyid Abdul A'la Maudoodi and others v. The Government of West Pakistan and another PLD 1964 SC 673; Capt. (R) Nayyar Islam v. Judge Accountability Court No.III and others 2012 SCMR 669; Neimat Ali Goraya and 7 others v. Jaffar Abbas, Inspector/Sergeant Traffic through S.P. Traffic, Lahore and others 1996 SCMR 826 and Abida Rashid v. Secretary to the Government of Sindh and others PLD 1995 Kar. 587 rel.

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

----Ss. 409, 420, 467, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Pakistan Engineering Council Act, 1975 (V of 1976), S. 27---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Renewal and upgradation of licenses---Petitioner/ Engineering Council sought quashing of FIR registered with Federal Investigating Agency with regard to renewal and upgradation of licenses on the basis of fake documents---Validity---Allegations mentioned in FIR were mainly related to renewal and upgradation of licenses on fake documents in connivance with employees of the Council---Renewal or upgradation of licenses was one of the functions of the Council described under Pakistan Engineering Council Act, 1976---Council was the competent forum to examine whether any license was validly renewed or upgraded---For such reason relevant statute explicitly barred jurisdiction of Courts unless a complaint was made by the Council---When the Council in exercise of its powers under Pakistan Engineering Council Act, 1976, reached to a conclusion that any renewal or upgradation was without lawful authority and result of connivance of its employees, it was only then that the a complaint would be sent for trial of the offences mentioned in S. 27 of Pakistan Engineering Council Act, 1976, to Court of a Magistrate of the First Class---Determination of the Council regarding allegation of commission of offences mentioned in S. 27 of Pakistan Engineering Council Act, 1976, was a pre-condition to presume that any employee of the Council could have been complicit in relation thereto---Act of registration of FIR by Federal Investigating Agency was in disregard to the explicit bar contained under S. 27(6) of Pakistan Engineering Council Act, 1976---High Court quashed the FIR, as registration of criminal case and subsequent proceedings would be an exercise in futility, wastage of time and abuse of the process of the Court in view of the explicit bar contained in S. 27(6) of Pakistan Engineering Council Act, 1976---High Court directed Pakistan Engineering Council to consider allegations mentioned in the complaint and proceed with the matter strictly in accordance with law---Constitutional petition was allowed accordingly.

Bahawalpur Medical and Dental College v. Pakistan Medical Commission through Secretary and others 2022 CLC 775; Dr. Omar Masood and another v. Syed Amir Hussain Naqvi and another 2019 CLD 931 and Ali Azim Afridi, Advocate High Court, Peshawar v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and 3 others PLD 2020 Pesh. 105 ref.

Zahid Asif Chaudhry and Ms. Zainab Junjua for Petitioners.

Khalid Mehmood Dhoon, Assistant Attorney General, Rizwan Mehdi, Assistant Director, FIA (ACC) and Danish Sarfraz, SI, FIA for Respondents.

2023 M L D 2037

[Islamabad]

Before Tariq Mehmood Jahangiri, J

HUSSAIN SHAH---Appellant

Versus

The STATE---Respondent

Jail Appeal No. 54 of 2021, decided on 6th February, 2023.

Penal Code (XLV of 1860)---

----S. 376(1)--- Criminal Procedure Code (V of 1898), S. 342---Rape---Appreciation of evidence---Age of victim---Determination---Benefit of doubt---Question regarding age of victim was not put to accused during statement under S. 342, Cr.P.C.---Accused was convicted by Trial Court and sentenced to imprisonment for life---Validity---Question of age of girl always becomes of greater importance while awarding conviction under S. 376(1), P.P.C.---There was no evidence that girl was under-age---Neither the victim herself nor her father, mother or doctor stated such fact in their evidence---Important question that victim was under-age had never been put to accused in statement recorded under S. 342, Cr.P.C.---Such allegation was not made in the charge framed by Trial Court---Age of victim was mentioned as 16 years in Medico Legal Report however, no reasons whatsoever had been mentioned that on the basis of which evidence, the age was written---Statement of victim was not supported by report of DNA as well as by Medico Legal Report or statement recorded by doctor wherein it was mentioned that no mark of any injury on her body was found---Victim herself washed her clothes and remained silent for 04 days in a small house where she was living with her parents, four brothers and two sisters---Prosecution failed to prove its case against accused beyond reasonable doubt---There were so many defects and contradictions in prosecution case/evidence and prosecution case was doubtful and benefit of the same was to be extended in favour of accused---High Court extended benefit of doubt to accused and his conviction and sentence was set aside, resulting into his acquittal from the charge--- Appeal was allowed, in circumstances.

Haider Ali and others v. The State 2016 SCMR 1554; Idrees Masih v. The State 2022 YLR Note 40; Mst. Ehsan Begum v. The State PLD 1983 FSC 204; Abid Javed alias Mithu v. The State 1996 PCr.LJ 1161; PLD 1966 Lah. 220; Ameer Zeb v. The State PLD 2012 SC 380; Qaddan and others v. The State 2017 SCMR 148; Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710; Mazhar Iqbal v. The State and another 2022 MLD 752; Atif Zareef and others v. The State PLD 2021 SC 550; Bashir Muhammad Khan v. The State 2022 SCMR 986; Tariq Pervaiz v. The State 1995 SCMR 1345 and Muhammad Aslam v. The State 2011 SCMR 820 rel.

Shahbaz Shah for Appellant.

Syed Muhammad Tayyab and Muhammad Zaman, ASI for the State.

2023 M L D 2082

[Islamabad]

Before Mohsin Akhtar Kayani, J

HAMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 722-B of 2023, decided on 31st May, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 377-B & 506(ii)---Anti-Rape (Investigation and Trial) Act (XXX of 2021), Ss. 8(1)(viii) & 21---Sexual abuse of a minor---Bail, grant of---Further inquiry---Sexual abuse and its attempt---Distinction---Compromise between parties---Allegation against the petitioner was that he sexually abused minor son of the complainant in his shop---Validity---Record revealed that no medical examination of the minor boy was conducted during the course of investigation as the allegation was only to the extent of mere attempt---Language used in the definition of sexual abuse under S. 377-A, P.P.C., covered all kinds of acts, including but not limited to, fondling, stroking, caressing, exhibitionism, or any obscene or sexually explicit conduct or simulation of such conduct with the victim who was less than eighteen years of age, however, it provided the sentence of 20 years, which could not be awarded for a period of less than 14 years and fine---Said aspect, at one side, gave wide discretion to Trial Court to consider the allegation in the light of available evidence and to decide the case whereas, from another angle, such sentence was not proportionate to the case in which any act less than attempt was prima facie visible, which could only be verified after recording of evidence in trial---Even the investigation report disclosed allegation of kissing the minor child by the petitioner, therefore, when exact language of definition of offence of sexual abuse was placed in juxtaposition, ground of further inquiry in terms of sub-clause 2 of S. 497, Cr.P.C, emerged---Besides, there was compounding statement of the complainant also, which created further exception in favour of the petitioner, however, the offence under S. 377-A, P.P.C., was not compoundable entailing capital punishment; and granting bail on the basis of compromise would be against the public policy as well as law, but the circumstances suggested that no useful purpose would be achieved by placing the petitioner behind the bars, especially when investigation was complete and petitioner was no more required for the purpose of investigation---Effective measures could be passed under different provisions of Anti-Rape (Investigation and Trial) Act, 2021 ('the Act 2021')---Purpose of Sexual Offence Prevention Order (SOPO) was to protect the public, prevent further sexual offences and to support the rehabilitation and management of sexual offenders, aimed at striking balance between safeguarding potential victims and respecting the rights of the individual---High Court directed the concerned SHO/I.O to adopt all such necessary measures/actions in terms of Ss. 8(1)(viii) & 21 of the Act 2021 for benefits/safeguard of victim and his family---Bail was allowed to the petitioner/accused, in circumstances.

R v. Smith and others [2-11] EWCA Crime 177 ref.

Fida Ahmad v. The State 2020 YLR 153; Muhammad Makki v. The State and another 2010 PCr.L.J 1482; Aziz Khan and another v. The State and another 2004 PCr.LJ 490; Muhammad Akbar v. The State 1987 MLD 3096; Syed Azmat Hussain Shah v. The State 2009 PCr.LJ 780 and Mukhtar Ahmad and others v. The State 1999 PCr.LJ 1107 distinguished.

Yasar Mehmood Khokhar for Petitioner.

Syed Bilawal Kamal, State Counsel.

Qamar, S.I., Police Station Shams Colony, Islamabad for the State.

2023 M L D 1

[Sindh]

Before Syed Hasan Azhar Rizvi and Zulfiqar Ahmad Khan, JJ

SHAMIM AHMED and another---Petitioners

Versus

Syed MOUSA RAZA MASHADI and 2 others---Respondents

Constitutional Petition No. D-1973 of 2016, decided on 5th November, 2020.

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

----S. 12(2) & O. IX, R. 8---Bar to further suit---Procedure where only the defendant/respondent appeared---Scope---Petitioners assailed order passed by Executing Court whereby, in an application under S. 12(2), C.P.C., their evidence was discarded for non-appearance---Revisional Court dismissed the revision petition---Validity---Respondent had obtained judgment and decree by concealment and fraud---Petitioners had only got knowledge about the proceedings on receipt of notice of the execution application---Petitioners had maliciously filed an application under S. 12(2) read with S. 151, C.P.C., against the judgment and decree---Courts were to act in the aid of justice and no person was to be deprived of his legal rights on mere technicalities, rather the technicalities of law were to be avoided and discouraged in order to do complete justice---If a party had a case on merits then it would be within safe administration of justice to exercise discretion towards dispensation of justice and not to allow the opposite party to continue enjoying illegal gains in the name of technicalities---Constitutional petition was allowed and the Executing Court was directed to record evidence of the parties.

Zahoor Ahmed v. Mehra 1999 SCMR 105; Jameel Ahmed v. Saifuddin 1997 SCMR 260; Khaeri Khan and 5 others v. Muhammad Siddique alias Siddiqo and 8 others 2020 CLC 1458; Mst. Gulfama v. Mst. Jamsheda and 14 others 2019 CLC 1483; Saeed Ahmad v. Ghulam Fatima PLD 2019 Lah. 723; Aamir Hameed v. Alloo and Manocher Dinshaw Charitable Trust 2019 YLR 1055 and Haji Ghano Khan v. Dr. Bhagwandas 2020 MLD 1127 ref.

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

----S. 12(2)---Bar to further suit---Fraud---Burden of proof---Scope---Concealment of facts by a person having knowledge or belief of facts may constitute fraud but the same must be proved through clear and convincing evidence and the burden of proof of fraud lies on the party which alleges fraud except in a case in which the fraud is floating on the face of record.

Mst. Nasra Khatoon and another v. Mst. Aisha Bai and others 2003 SCMR 1050 rel.

Mian Mushtaq Ahmed for Petitioners.

Usman Shaikh and Muzammil Ali Soomro for Respondent No. 1.

2023 M L D 20

[Sindh]

Before Nazar Akbar, J

SHAKEEL QADIR through Attorney---Plaintiff

Versus

Mst. SHUMAILA UMAIR---Defendant

Civil Suit No. 641 of 2020, decided on 26th May, 2021.

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

----S. 39---Transfer of Property Act (IV of 1882), S. 54---Registration Act (XVI of 1908), S. 49---Civil Procedure Code (V of 1908), O.VII, R. 11---Suit for cancellation of un-registered document---Rejection of plaint---Scope---Plaintiff filed suit for cancellation of un-registered document---Validity---No right had accrued to the defendant under the un-registered agreement of sale sought to be cancelled through the High Court---Mere agreement of sale did not confer any right in favour of buyer--- Suit was hit by O. VII, R. 11, C.P.C. as no cause of action could ever accrue to the plaintiff to approach court of law for a decree of declaration and cancellation of same---Plaintiff had filed the suit to harass and coerce the buyer through the frivolous suit and might be to pre-empt a suit for specific performance---Such was clear abuse of process of Court, therefore, the suit was dismissed with costs.

Muhammad Iqbal and others v. Mst. Baseerat and others 2017 SCMR 367 and Khalid Khan v. Haji Muhammad Anwar and 2 others 2015 YLR 1845 rel.

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

----O.VII, R. 11---Sindh Chief Court Rules (O.S.), R. 121---Rejection of plaint---Plaint liable to be rejected to be submitted to Judge hearing miscellaneous matters---Scope---Additional Registrar in a plaint seeking cancellation of un-registered document is not required to raise simple objection in fact he has power to reject the plaint under O. VII, R. 11, C.P.C. and reasons for rejection of plaint are to be placed before the Judge of High Court for orders---Office is not even supposed to assign a number of suit to the plaint for cancellation of un-registered document.

Muhammad Saleem Ibrahim for Plaintiff.

2023 M L D 30

[Sindh]

Before Syed Hasan Azhar Rizvi, J

LETTER OF ADMINISTRATION AND SUCCESSION CERTIFICATE OF THE ESTATE OF (LATE) MR. NAJAF HASSNAIN: In the matter of

S.M.A. No. 15 of 2014, decided on 20th September, 2021.

Succession Act (XXXIX of 1925)---

----Ss. 312 & 278---Letter of administration, grant of---Survival of powers on death of one of several executors or administrators---Scope---Letter of Administration for estate of deceased was granted to brother of deceased who himself later died---Applicant, being sole surviving heir of deceased, sought issuance of fresh letter of administration on ground that the estate of original deceased has been left unadministered---Held, that per S. 312 of Succession Act, 1925 Letter of Administration could be granted upon death of one or several executors or administrators and applicant being sole surviving heir of original deceased, was therefore entitled to be granted Letter of Administration of estate of original deceased---Application was allowed, accordingly

Muhammad Shafiq's case PLD 2014 Sindh 541 rel.

2023 M L D 44

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

Dr. Agha AIJAZ ALI PATHAN---Petitioner

Versus

The STATE and another---Respondents

Constitutional Petition No. D-6338 of 2020, decided on 20th May, 2021.

(a) Evidence---

----Admissibility, objection to---Scope---Whenever an objection is raised by the defense over admissibility of some evidence sought to be produced in the trial, the Court is bound to decide it first before proceeding further and that it shall abstain from deferring the same for a decision to be made at the time of judgment.

(b) Evidence---

----Admissibility, objection to---Scope---If a document that otherwise cannot be admitted in evidence is sought to be admitted in the evidence, and the defense is raising objection over it; it would be duty of the Court to decide it first before taking on further proceedings---If the objection being raised is to hit merit of the document or manner of its recovery having an impact of prejudicing outcome of the case prematurely against or in favour of either party, the court is not required to decide the same then and there while recording the evidence---Said two situations are dissimilar to each other in the context and implication in law---One entails an immediate attention of the Court so that inadmissible evidence is held back at the very inception with a view to avoid misperception and unnecessary burden, whereas the other one necessitates a detailed analysis combined with entire evidence adduced or to be adduced by the prosecution for rendering a definitive opinion about its qualification.

(c) Evidence---

----Admissibility, objection to---Scope---Accused moved an application before the Trial Court raising an objection over admission and admissibility of 100 out of 133 documents which the Investigating Officer sought to produce in his evidence on the ground that they being Photostat copies were inadmissible---Charge against the accused was of recovery of Photostat copies from him at the time of his arrest---Prosecution could not stress to produce the original ones or furnish an explanation about missing, etc. thereof---Evidentiary value of the same and reliability as incriminating evidence was not required to be discussed or decided at the time of their production in the evidence---Constitutional petition was dismissed.

M.A. Kazi and Irshad Ali Jatoi for Petitioner.

Riaz Alam, Special Prosecutor NAB for the State.

2023 M L D 65

[Sindh]

Before Zulfiqar Ahmad Khan, J

MUHAMMAD SHAFI PARACHA---Plaintiff

Versus

MUHAMMAD ASMAT PARACHA and 3 others---Defendants

Suit No. 1414 of 2011, decided on 29th June, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), Ss. 11 & 35-A---Suit for declaration and injunction---Res-judicata, principle of---Applicability---Compensatory cost, imposition of---Suit was filed by plaintiff for administration of accounts, property, seeking declaration and permanent injunction against defendants regarding property left by his predecessor-in-interest---Validity---Plaintiff had earlier also litigated two suits against same defendants with the same prayers and same cause of action---Such lis was hit by principle of res-judicata, as mandated under S. 11, C.P.C.---Still born suit should be properly buried at the inception so that no further time was consumed on a fruitless litigation---Suit in question had been pending since year 2011, which was already heard and decided previously between the plaintiffs and defendants---High Court under the principle of res-judicata declined to interfere in the matter and imposed compensatory cost against plaintiff---Suit was dismissed, in circumstances.

Plaintiff in person.

Nemo for Defendants.

2023 M L D 77

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar, J

Syed JAN ALI SHAH---Applicant

Versus

GOVERNMENT OF SINDH through Secretary/ Senior Member Board of Revenue and others---Respondents

Civil Revision No. S-69 of 2001, decided on 7th March, 2022.

Civil Procedure Code (V of 1908)---

----O. I, R. 8---Representative suit---Issuance of notice---Conditions precedent---Where there were numerous persons having the same interest in one suit, one or more of such persons might, with the permission of the Court, sue or be sued or may defend in such suit on behalf of or for the purpose of all persons so interested---Exception to said rule was that in all such cases, the Court should at the expense of the plaintiff give notice of the institution of such a suit to all persons either by personal service or where from the number of persons or any other cause such service is not personally practicable by public advertisement as the Court might direct---In the present case, apparently neither any application was ever filed under O. I, R. 8, C.P.C nor the persons, as mentioned in the Schedule to the plaint were ever served with any notice either personally or through publication---Issuance of notice upon the persons sought to be represented in such suits was mandatory---Suit was incompetent under its representative capacity and could only have proceeded independently on behalf of the applicant---Record showed that the title and the basis on which the ownership was being claimed and declaration had been sought was forged and fabricated---Admittedly, purported sellers of the property were never joined by the applicant---Contention of applicant that their joining was not necessary as sellers had no dispute with the applicant was incorrect---Merely saying that sellers had no issue with the applicant would not suffice---Record showed that sellers being aggrieved by the issuance of notices had also filed their own suit which was dismissed in default---In alternative, applicants had a case against those sellers for committing fraud and cheating by selling the property which was not owned by them with a clear title, but not against present respondents--- Revision was dismissed.

Adam Khan v. Gulla Mir PLD 1982 SC 120; State of Andhra Pradesh v. Gundugola Venkata Suryanarayana Garu AIR 1965 SC 11; Mst. Seema v. Millennium Developers 2003 CLC 632; M. Saadullah v. Tahir Ali 1986 CLC 2643 and Anisur Rehman v. Government of Sindh 1997 CLC 615 rel.

Rashid Ahmad v. Muhammad Sadiq 2003 YLR 690 distinguished.

Sarfraz A. Akhund for Applicant.

Ahmed Ali Shahani, Assistant Advocate-General, Sindh for Respondents.

2023 M L D 103

[Sindh (Sukkur Bench)]

Before Nadeem Akhtar, J

Mst. SAMINA BEGUM---Petitioner

Versus

MUHAMMAD HAQ NAWAZ KHAN and 2 others---Respondents

Constitutional Petition No. S-929 of 2021, decided on 1st October, 2022.

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

----S. 15---Eviction petition---Relationship of landlord and tenant, denial of---Scope---If the tenant asserts that he is no more a tenant as he had purchased the rented premises, even then he has to vacate the premises and file a suit for specific performance of the sale agreement; he would be entitled to possession of the premises in accordance with law only if he succeeds in his suit; till such time the Civil Court passes a decree against the landlord in a suit for specific performance, the landlord would be entitled to recover rent; and, till the time that the tenant is able to establish his claim for specific performance on the basis of a sale agreement, the landlord would continue to enjoy the status of being owner and landlord of the premises, and till such time the relationship between the parties would be regulated by the terms of the tenancy.

Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101; Kassim and another v. S. Rahim Shah 1990 SCMR 647; Muhammad Iqbal Haider and another v. Vth Rent Controller/Senior Civil Judge, Karachi Central and others 2009 SCMR 1396; Syed Imran Ahmed v. Bilal and another PLD 2009 SC 546 and Abdul Rasheed v. Mqbool Ahmed and others 2011 SCMR 320 ref.

(b) Maxim---

----Audi alteram partem---Scope---Principle 'audi alteram partem' is attracted only in a case where the opportunity of hearing is not afforded by the Court to a party to the proceedings in spite of the fact that the party was present before the Court or was absent but was not properly served in accordance with law---Principle shall not apply in a case where the party, despite proper service of notice and opportunity granted by the Court, chooses to remain absent, or appears either personally or through counsel and then deliberately abstains itself from participating in the proceedings.

(c) Administration of justice---

----Every litigant is bound to prosecute and/or defend, as the case may be, his case in a prudent, diligent and vigilant manner, and in case of his failure, he has to face the consequences that may follow because of his failure.

Muhammad Nadeem Khan for Petitioner.

Muhammad Irfan for Respondent No. 1.

2023 M L D 128

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

NIAZ HUSSAIN---Appellant

Versus

The STATE and 4 others---Respondents

Criminal Acquittal Appeal No. S-20 of 2020, decided on 22nd March, 2021.

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

----Ss. 324, 504, 148 & 149---Attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Charge against accused was that they, in association with absconding accused, duly armed with deadly weapons, formed unlawful assembly and made firing upon the complainant party, which hit the nephew of the complainant---Record showed that the prosecution witnesses had contradictory and inconsistent versions to each other on material points and had made dishonest major improvements in their evidence---Admittedly, there was inordinate delay of eleven days in lodgement of FIR, which had given presumption of false implication of the respondents/accused after due deliberation and consultation---Admitted fact was that during examination-in-chief, when the complainant was confronted with the FIR, he deposed that it bore only his thumb impression but he did not know its contents---Admittedly, Investigating Officer of the case had deposed to have prepared memo of injuries at 12.30 p.m. but that version of the Investigating Officer was contradicted by Medico-Legal Officer, who deposed that injured was brought before him at about 11:40 a.m., whereas, other witness deposed that they reached at Police Station at about 12.00 p.m.---Medical evidence was in direct conflict with the ocular account furnished by the witnesses, as witnesses had deposed that accused persons fired from close distance, whereas, evidence of Medico-Legal Officer showed that pellets of same cartridge had spread and injured had wounds in both legs, which proved sheer contradiction and were fatal to the prosecution case---Prosecution had failed to prove the participation of the respondents/accused in the crime---Appeal against acquittal was dismissed, in circumstances.

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

----S. 417---Appeal against acquittal---Interference---Scope---Acquittal order could not be lightly interfered with by the appellate court, though it had wide powers to review the evidence and come to its own conclusion---Said powers must be exercised with care and caution because the presumption of innocence is further strengthened by the acquittal of an accused.

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

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

----S. 417---Appeal against acquittal---Interference---Scope---Acquittal once granted could not be recalled merely on the possibility of a contra view---Unless, impugned view is found on fringes of impossibility, resulting into miscarriage of justice, freedom could not be recalled.

Illahi Bux Jamali for Appellant.

Khalil Ahmed Maitlo, Deputy P.G. for the State.

2023 M L D 156

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Amjad Ali Sahito, JJ

AQEEL and others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-11, Confirmation Case No. 3 of 2017, Criminal Jail Appeal No. D-33 and Criminal Appeal No. D-34 of 2018, decided on 3rd November, 2021.

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

----Ss. 302(b), 504 & 34---Qatl-i-amd, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Scope---Accused were charged for committing murder of the brother of complainant---Ocular account of the incident had been furnished by two eye-witnesses---Eye-witnesses had sufficiently explained the date, time and place of occurrence as well as each and every event of occurrence in a clear cut manner---Said witnesses had denied the suggestions that they had not witnessed---Complainant and his witnesses were cross-examined at length, lengthy questions were asked to shatter their confidence and doubt their presence at the scene of occurrence, but the defence could not extract anything favourable from their mouth and they remained consistent on the material point---Direct evidence also found corroboration from the medical evidence of the Medico-Legal Officer concerning the cause of death and time of incident and weapon used in the commission of offence---Ocular evidence was further supported by the recovery of the knife and clip from accused---Knife (Churra) of the accused and bloodstained clothes of the deceased were sent to the office of the Chemical Examiner and found that articles stained with human blood---Prosecution witnesses were in line in respect of the vital points in their depositions and they could not be shaken during cross-examination---Availability of the accused at the place of the incident was also established through the evidence of the eye-witnesses---No major contradiction had been observed in their depositions---Parties were known to each other as was evident from their evidence, so there was no chance of mistaken identity of the accused---Where the witnesses fell within the category of natural witnesses and gave a detail of the incident in a confidence inspiring manner, their evidence would not be brushed aside---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, however, death sentence of accused was converted into life imprisonment, in circumstances.

Pathan v. The State 2015 SCMR 315; Muhammad Asif v. The State 2017 SCMR 486 and Zafar v. The State and others 2018 SCMR 326 ref.

Zahoor Ahmed v. The State 2017 SCMR 1662 rel.

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

----Ss. 302(b), 504 & 34---Qatl-i-amd, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Sentence, reduction in---Delay of four days in lodging the FIR---Scope---Accused were charged for committing murder of the brother of complainant---Record showed that the delay stood explained by the complainant in the FIR that after taking the letter from the hospital, the injured was referred to another hospital for better treatment---Injured died during the treatment---Post-mortem was conducted and thereafter he lodged the FIR on same day---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, however, death sentence of the accused was converted into life imprisonment.

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

----S. 154---First Information Report---Delay in lodging the FIR---Scope---Delay by itself in lodging the FIR is not material---Factors to be considered by the Courts are first that whether such delay stands reasonably explained and secondly, that the prosecution has not derived any undue advantage through the delay involved.

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

----Ss. 302(b), 504 & 34---Qatl-i-amd, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Sentence, reduction in---Accused were charged for committing murder of the brother of complainant---Assessment of the evidence, showed that the Trial Court had not considered the submission of the accused about his juvenility nor referred him to the medical board to determine his age---Three co-accused were declared minor and they were convicted and sentenced to suffer for life imprisonment, hence the accused/appellant was also entitled to the same treatment---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, however, death sentence was converted into life imprisonment, in circumstances.

(e) Act of Court---

----No one can be prejudiced by an act of the Court.

Syed Muhammad Waseem Shah for Appellant (in Criminal Jail Appeal No.D-11 of 2017).

Muhammad Ishaque Khoso for Appellant (in Criminal Appeal No.D-­34 of 2018).

Mir Naeem Talpur, Wazeer Hussain Khoso and Muhammad Ishaque Khoso for Appellants (in Criminal Jail Appeal No.D-33 of 2018).

Nazar Muhammad Memon, Additional Prosecutor General, Sindh for the State.

Nemo for the Complainant.

2023 M L D 187

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

SARFARAZ AHMED---Appellant

Versus

AFAQUE AHMED and another---Respondents

Criminal Acquittal Appeals Nos. D-15 and 120 of 2007, decided on 24th April, 2018.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Accused was charged that he along with co-accused committed murder of the brother of the complainant---Role of catching hold to the deceased was assigned to the respondent/accused by the prosecution, however, which was not proved at the trial---Principal accused had been declared absconder---No evidence to show that respondent/accused shared common intention with main accused--- Appeal against acquittal was dismissed accordingly.

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

----S. 417---Appeal against acquittal---Interference---Scope---Judgment of acquittal is to be interfered only if the view of the Trial Court is either manifestly perverse on facts or vitiated in law---If the view taken by the Trial Court can reasonably be said to be arrived at, High Court does not substitute the same with its own view.

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

Syed Tarique Ahmed Shah for Respondent.

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

2023 M L D 195

[Sindh]

Before Kausar Sultana Hussain, J

MENGAL BROTHERS TRANSPORTS (PVT.) LTD. through Chief Executive Officer---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum, Federal Secretariat, Islamabad and 4 others---Defendants

Suit No. 224 of 2019, decided on 31st March, 2022.

Arbitration Act (X of 1940)---

----Ss. 8 & 34---Arbitrator, appointment of---Predesignated arbitrator---Arbitrator appointed by court---Scope---Plaintiff agreed to the appointment of arbitrator but opposed referring matter/dispute to predesignated arbitrators who were serving officers of defendant company---Validity---Court under S. 8 of Arbitration Act, 1940, was empowered to appoint arbitrator or an umpire in certain cases by providing machinery for effectively working out and enforcing arbitration agreement so that arbitration agreement could become abortive---Arbitrator or umpire appointed under S. 8 of Arbitration Act, 1940 had the like power to act on reference and to make an award, as if he was appointed by consent of the parties---High Court by exercising powers under S. 8 of Arbitration Act, 1940, deemed it appropriate to appoint any person other than the predesignated arbitrators, to act as arbitrator in the matter in order to resolve dispute arising between the parties---High Court directed the parties to submit names of arbitrators by consent or individually for appointment---High Court further directed that if parties were unable to agree on appointment of arbitrator by consent, then it would exercise powers under S. 8 of Arbitration Act, 1940, and appoint arbitrator in the matter---Application was allowed accordingly.

Messrs Mc. Kenzies, Ltd v. Messrs Sullemon and Co. AIR 1933 Sindh 75; Messrs Waseem Contract Co. v. Province of Sindh 1983 CLC 3273; Gerry's International (Pvt.) Ltd. v. Aeroflot Russian International Airlines 2018 SCMR 662; Shaheen Construction Company v. Fauji Fertilizer Bin Qasim Ltd. 2015 MLD 304; Mst. Sarriya v. Siemens Pakistan Engineering Company PLD 2011 Kar. 571; Karachi Dock Labour Board v. Messrs Quality Builders Ltd. PLD 2016 SC 121; Pakistan Development Corporation (Pvt.) Ltd v. Ministry of Defence, Government of Pakistan PLD 1995 Kar. 286 and Federation of Pakistan v. Messrs James Construction Company (Pvt.) Ltd. PLD 2018 Islamabad 1 ref.

Malik Fayaz Ahmed Khakh for Plaintiff.

Rafiq Ahmed Kalwar for Defendants Nos. 2 to 4.

2023 M L D 233

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar, J

SHRIMATI JAAMI and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-195 of 2018, decided on 18th April, 2022.

(a) Criminal trial---

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

2015 PCr.LJ 1603 rel.

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

----Ss. 302(b), 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Benefit of doubt---Lack of direct evidence---Scope---Accused were charged that they, in furtherance of their common intention committed murder of the son of complainant---Candidly there was no ocular account to the dead body of deceased which was recovered from rainy water standing near Railway Phatak but same was not on the pointation of the accused persons---Evidence of witnesses was recorded, both the witnesses were not eye-witnesses; hence, they had not linked accused persons with concrete evidence---If there was no direct evidence to show as to in what circumstances victim was murdered, the Court had to discharge its onerous duty of determining whether the death was caused by the felonious act of some other person---If so, what offence, if any, had been committed by such a person and it was not sufficient in such a case to say that accused persons committed the offence when there was no direct evidence---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal was allowed, in circumstances and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Hamid Nadeem v. The State 2011 SCMR 1233; Muhammad Mukhtiar alias Moju v. The State 2010 PCr.LJ 1750; Rajab Ali and another v. The State 2012 MLD 518 and Tarque Hussain and another v. The State and 4 others 2018 MLD 1573 ref.

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

----Ss. 302(b), 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused were charged that they in furtherance of their common intention committed murder of the son of complainant---Medical Evidence showed kicks and fists blows---Suffice to say the medical evidence could only point out nature of injuries and weapon used, could not directly connect the accused persons until and unless corroborated by the ocular evidence or circumstantial evidence---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal was allowed, in circumstances and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 302(b), 201 & 34---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Benefit of doubt---Disclosure made by accused before the police---Scope---Accused were charged that they in furtherance of their common intention committed murder of the son of complainant---Disclosure before the police had no legal value under the provisions of Qanun-e-Shahadat, 1984---Alleged confession of accused during police investigation while in custody had no evidentiary value and same could not be used against him and no weight could be given to such disclosure of accused---Information or disclosure of any accused in custody of the police before a police officer is inadmissible/irrelevant under Arts. 38 & 39 of Qanun-e-Shahadat, 1984---In the present case mere admission of guilt before the Police Officials was based to connect the accused persons with the commission of offence without considering the fact that there was no recovery of incriminating article(s) or any cogent and convincing circumstantial material---Conviction could not be based on extra judicial confession when admittedly same was not corroborated by other reliable evidence---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

2017 PCr.LJ 479 rel.

(e) Criminal trial---

----Extra-judicial confession--- Scope--- Extra-judicial confession allegedly made by accused is of no value if it was made before two persons at the same time---Extra-judicial confession is a weak piece of evidence.

Muhammad Aslam and another v. The State 2003 SCMR 862 rel.

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

----Ss. 302(b), 201 & 34--- Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Benefit of doubt---Recovery of dead body of the deceased---Scope---Accused were charged that they in furtherance of their common intention committed murder of the son of complainant---Admittedly the dead body was not recovered on the pointation of accused persons nor were they produced before a Judicial Magistrate for recording their confessional statements to make it credible piece of material for using the same against them---Even no recovery was affected from the accused persons---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

(g) Criminal trial---

----Circumstantial evidence---Scope---Prime duty of Investigating Officer to conduct investigation with full care and cautions and collect evidence by unbroken chain-to-chain from the last seen upto the incident with credible and convincing evidence from all corners---If such circumstantial evidence was firmly collected leaving no lacuna, it could be based to convict the culprits.

2008 PCr.LJ 1075 rel.

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

----Ss. 302(b), 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused were charged that they in furtherance of their common intention committed murder of the son of complainant---Motive of the incident, as alleged, was that the deceased had seen illicit terms between both the accused---Record showed that the complainant deposed in his cross-examination that he did not obtain confirmation about illicit relationship between accused persons from any person of locality---Husband of lady accused had not made any complaint to any one or even to the police about illicit relationship of both the accused---On appraisal of that piece of evidence of the complainant, it appeared that the complainant himself was not sure about the motive taken in the case which allegedly resulted the murder of deceased as per prosecution story---Motive was energetic source of mind which provided propelling force and gave impetus to perform any action or to do any act---Motive was the cause, manner and method of thoughts in the mind of a person for performing action which was hidden in the mind of accused---Lack of, absence, inadequacy, weakness of the motive, if any, set up by the prosecution and failure to prove it or the motive shrouded in mystery, were not the grounds to withhold penalty of death or to order sentence of life imprisonment, if prosecution had succeeded to prove its case beyond any reasonable doubt---Motive was not established, confession of accused was extra-judicial confession, as such carried no weight.

2017 YLR 648 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---If the prosecution failed to bring home the guilt of accused beyond reasonable doubt, conviction recorded and sentence awarded to accused by the trial court could not be sustained.

2014 MLD 1050 rel.

Appellant No. 1 represented by Abdul Majeed Magsi called absent.

Muhammad Yaseen Leghari for Respondent No. 2.

Fayaz Hussain Saabki, Assistant Prosecutor General, Sindh for the State.

2023 M L D 258

[Sindh (Sukkur Bench)]

Before Nadeem Akhtar and Zafar Ahmed Rajput, JJ

ALI AHMED and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Election Commission of Pakistan, Islamabad and others---Respondents

Constitutional Petitions Nos. D-650, D-653 and D-665 of 2020, decided on 24th June, 2022.

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

----Ss. 35(1)(c), 37(2)(a) & 39---Qualifications for contesting Election in Rural Area---Bar to transfer vote---Respondent "H.K.M" submitted his nomination papers to contest Local Council Elections for the seat of Member District Council (Rural) from two Union Councils which were rejected by the Returning Officer---Respondent filed Election appeal before the Appellate Authority/Appellate Tribunal, which was allowed---Held, that a person is qualified to be elected or chosen as a member of the Council if he is enrolled as a voter in the Electoral Rolls of the concerned Council or Ward---Person contesting for the District Council membership can contest the election from any Union Council of the District and the persons contesting for the membership of Town Committee or Municipal Committee can contest the election from any ward of the respective Committee provided that their proposers and seconders were registered voters of the concerned Union Council or Ward---Request of respondent for transfer of his vote was declined by the Returning Officer on the ground that same was not entertainable as such bar was created by S. 39 of the Elections Act, 2017----Admitted position was that the petitioner's intention was to contest for the membership of the District Council (Rural) but he was not the registered voter of any concerned Council of the said District Council---Section 35(1)(c) of the Act contained restrictions that a candidate could not stand on the reserved seat of District Council which was constituted purely for rural area of a District---Admitted position was that the respondent (H.K.M) was not a registered voter of the concerned Union Council (rural area) and, therefore, his nomination was rejected by the returning officer on the said ground---Nomination could be rejected, there could not be any objector before the Returning Officer; nor any appeal could have been filed by anyone except respondent (H.K.M)---Only after passing of the order by the Appellate Tribunal anyone including the petitioners could have been aggrieved---Petitioners were the candidate on the seat of Member District Council (G), therefore, they could maintain their petitions---Respondent (H.K.M) had made an attempt to contest election in a Union Council of a Town where his vote was not registered---Therefore, respondent stood disqualified for the entire District Council concerned irrespective of any objections to that effect---Respondent was not entitled to contest election for rural seats in a District Council being voter of urban area where his vote was registered whether rightly or wrongly---Constitutional petitions were allowed by setting-aside the order of the Appellate Tribunal, consequently, the nomination of respondent from Union Council stood rejected.

Haji Khan Bhatti v. Province of Sindh through Provincial Election Commission and others 2016 SCMR 1970 rel.

Sarfraz A. Akhund, Amir Ali Bhutto and Achar Khan Gabol for Petitioners.

Jamshed A. Faiz and Sunder Khan Chachar for Respondent No. 10.

2023 M L D 275

[Sindh]

Before Nadeem Akhtar, J

Dr. MUHAMMAD BASHIR QASIM---Applicant

Versus

Mrs. FARIDA BANO and 2 others---Respondents

Civil Transfer Application No. 24 of 2018, decided on 27th September, 2022.

Civil Procedure Code (V of 1908)---

----S. 24---Transfer application---Scope---Applicant filed a suit for specific performance and injunction at the original side of the High Court in the year 1989---Due to change in the pecuniary jurisdiction, the suit was transferred to Senior Civil Judge Karachi East in the year 1996, the suit was dismissed for non-prosecution---Applicant sought restoration of the suit and also filed an application seeking its transfer from District Karachi East to the competent court having jurisdiction in District Karachi South---Senior Civil Judge acknowledged that he did not have jurisdiction but returned the application for presenting it before the competent court in District Karachi South---Said order was challenged by the applicant in Civil Revision, which was allowed by Additional District Judge with the observations that the Senior Civil Judge had no jurisdiction to return the application or even to entertain the suit or dismiss it for non-prosecution; that the order of dismissal of the suit was "ineffective" due to lack of territorial jurisdiction and that instead of returning the application, the Senior Civil Judge should have made a reference to the District Judge Karachi East for transferring the suit to the court having jurisdiction in respect thereof---Applicant filed an application before the District Judge Karachi East seeking compliance of the order---Instead of deciding the application, the District Judge Karachi East "advised" the applicant to approach the "proper forum" for this purpose---Meanwhile, a person filed an application before the Senior Civil Judge as an intervener and when his application was fixed for hearing, the Senior Civil Judge once again dismissed the suit for non-prosecution---Applicant filed an application for restoration of the suit which was dismissed---Applicant filed appeal before the District Judge Karachi East against the dismissal of his application---Through present transfer application, the applicant sought transfer of his appeal from District Judge Karachi East to District Judge Karachi South---Held; Senior Civil Judge did not have the territorial jurisdiction to entertain or adjudicate upon the suit, as such, the orders passed by Senior Civil Judge were coram non judice and void---Suit ought to have been transferred in the first instance to the competent court in District Karachi South---High Court transferred the suit to the District Karachi South and directed the District Judge Karachi South to assign/transfer the same to the court in his district having territorial jurisdiction--- Transfer application was allowed.

Raja Qasit Nawaz for Applicant.

Nemo for Respondents.

2023 M L D 299

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto, J

KHAIR MUHAMMAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Applications Nos. S-63, S-64 and S-65 of 2021, decided on 30th August, 2021.

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

----S. 498---Prevention of Corruption Act (II of 1947), S. 5---Penal Code (XLV of 1860), S. 409---Criminal breach of trust by public servant, or by banker, merchant or agent, criminal misconduct---Pre-arrest bail, refusal of---Absconsion---Scope---Accused sought pre-arrest bail in three different FIRs wherein he was alleged to have misappropriated wheat bags---Accused had remained an absconder for four years for which no sufficient explanation was furnished by him---Sufficient material was available on record to connect the accused with the commission of offences--- Accused had not joined the investigation---Recovery could not be made from accused as he was absconder for long time---Offences falling under Prevention of Corruption Act, 1947, were non-bailable, law did not allow bail to accused as of right---Reasonable grounds were available on record for believing that the accused had committed the alleged offence---No mala fide on the part of the complainant and Investigating Officer was brought on record---Bail applications were dismissed.

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

----S. 498---Pre-arrest bail---Scope---Concession of pre-arrest bail cannot be allowed to an accused person unless the Court is satisfied about seriousness of the accused person's assertion regarding his intended arrest being actuated by mala fide on the part of the complainant party or the local police---Grant of the pre-arrest bail is extraordinary remedy in criminal jurisdiction---Such is diversion of usual course of law, arrest in cognizable cases; a protection to the innocent been hounded on trumped up charges through abuse of process of law, therefore accused seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide.

Rana Abdul Khaliq v. The State and others 2019

SCMR 1129 rel.

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

----S. 498---Pre-arrest bail---Scope---Pre-arrest bail is not a substitute for post-arrest bail in every run of the mill criminal case as it seriously hampers the course of investigation.

Rana Abdul Khaliq v. The State and others 2019

SCMR 1129 rel.

Abdul Rahim Ansari for Applicant along with Applicant.

2023 M L D 342

[Sindh]

Before Aftab Ahmed Gorar, J

Mst. MASSARRAT ABID---Appellant

Versus

The STATE and 3 others---Respondents

Criminal Acquittal Appeal No. (S) 376 of 2018, decided on 1st November, 2021.

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

----Ss. 406, 417, 420, 427, 107, 206 & 34---Criminal breach of trust, cheating, cheating and dishonestly inducing delivery of property, mischief by causing loss or damage to the amount of one thousand rupees or upward, abetment, fraudulent removal or concealment of property to prevent its seizure, common intention---Appreciation of evidence---Appeal against acquittal---Perusal of the impugned judgment revealed that after examining the entire evidence adduced by the witnesses as well as the documentary evidence, it became crystal clear that no element of fraud inducement and false representation on the part of the respondents/accused took place, which fell under S. 420, P.P.C., as the element of cheating was not manifested from the evidences of the appellant/complainant and witness---Evidence showed that neither accused executed any agreement with the appellant/ complainant nor they received the amount as beneficiary, hence no transaction took place by the respondents---Admittedly the amount as alleged had been given to the absconder accused under written agreement which was on record, hence no criminal breach of trust against the respondents/accused had been proven by the appellant/complainant---No cogent evidence was available which connected the respondents/accused with the commission of offences---Impugned judgment was speaking one and elaborated which did not suffer from any illegality, gross irregularity and infirmity---Appeal against acquittal was dismissed accordingly.

(b) Criminal trial---

----Benefit of doubt---Principle---If a simple circumstance created reasonable doubt in a prudent mind about the guilt of the accused that would entitle the accused such benefit not as a matter of grace and concession but as a matter of right.

(c) Appeal against acquittal---

----Interference---Scope---Acquittal once granted could not be recalled merely on the possibility of a contra view---Unless, the impugned view was found on the fringes of impossibility resulting into miscarriage of justice, freedom could not be recalled.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Saeed v. The State 2008 PCr.LJ 1752; Ghulam Murtaza v. The State 2010 PCr.LJ 461 and Zulfiqar Ali v. The State 2019 SCMR 1315 rel.

(d) Appeal against acquittal---

----Double presumption of innocence---Interference---Appeal against conviction was distinguishable from the appeal against the acquittal because presumption of double innocence was attached in the later case---Order of acquittal could only be interfered with, if it was found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or was artificial and led to gross miscarriage of justice---Mere technicalities in a criminal trial without resulting injustice was not enough for interference.

Muhammad Ijaz Ahmad v. Fahim Afzal 1998 SCMR 1281; Jehangir v. Aminullah and others 2010 SCMR 491 and Khuyrram v. The State and others 2019 SCMR 1317 rel.

Syed Abdul Waheed for Appellant.

Siraj Ali Khan, Additional Prosecutor General, Sindh for the State.

2023 M L D 351

[Sindh]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD HAMMAD KHAN and others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 201, 204 and 252 of 2020, decided on 27th April, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 468, 420, 406 & 34---Forgery for purpose of cheating, cheating and dishonestly inducing delivery of property, criminal breach of trust and common intention---Bail, grant of---Dispute of civil nature---Scope---Accused persons seeking pre-arrest bail had allegedly entered into an agreement with the complainant regarding transaction of some immovable property in consideration of certain amount through the accused seeking post-arrest bail---Although the allegation against the accused persons was of cheating and defrauding but the complainant's counsel had stated that the matter was about to patch up between the parties, however, he had raised some allegations against the accused, property dealer---Dispute between the parties was purely of civil nature, which was being given a colour of criminal proceedings---Property Dealer was not the beneficiary of the transaction, as such he had made out a case of bail in his favour---Accused persons were admitted to bail, in circumstances.

Ms. Amna Usman for Applicant (in Criminal Bail Application No.201 of 2020).

Khurram Lakhani for Applicant (in Cr. Bail Application No.204 of 2020).

Sher Ali Behan along with Ms. Kiran Jahan for Applicant (in Cr. Bail Application No.252 of 2020).

Mahmood Khan Khokhar for the Complainant.

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

2023 M L D 357

[Sindh]

Before Khadim Hussain M. Shaikh, J

SAHIB and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 202 of 2005, decided on 29th September, 2020.

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

----Ss. 324, 353 & 34---Offences against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(1)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, haraabah---Appreciation of evidence---Benefit of doubt---Prosecution case was that Police Officials patrolling through official motorcycle were confronted by two accused, who directed them to surrender their official motorcycle, then there ensued encounter between the police party and the accused, however, accused were apprehended---Alleged encounter involving extensive firing between the accused and police parties comprising of six personnel, though continued for ten minutes yet nobody from either side sustained even a scratch and the firing was proved ineffective---No damage was alleged to have been caused to motorcycle---Motorcycle, which the accused allegedly attempted to snatch from the police party, was not produced in evidence before the Trial Court---Even the description and colour or making of that motorcycle was not shown anywhere either in the FIR or in the evidence---Weapons namely two T.T. Pistols of .30 bore allegedly recovered from the accused were not sent to the Ballistic Expert to ascertain their working condition---Departure and arrival entries, which would show that the police parties were on patrolling and their return to the police station after the alleged incident, had not been produced in evidence by the prosecution, which adversely reflected upon the prosecution---Accused were reported to have been acquitted by the Trial Court disbelieving the prosecution case in both the cases registered against the accused on the charge of keeping with them the unlicensed T.T. pistols of .30 bore, which were registered against them on the basis of subject mashirnama of arrest and recovery---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt--Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 353 & 34---Offences against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(1)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, haraabah---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Prosecution case was that Police Officials patrolling through official motorcycle were confronted by two accused, who directed them to surrender their official motorcycle, then there ensued encounter between the police party and the accused, however, accused were apprehended---There were material contradictions in the evidence led by the prosecution, as Head Constable/witness, heading the second party allegedly participated in the alleged encounter, stated that accused were not seen by him while making fires---Said witness further stated that some persons from neighbour came on firing but complainant deposed that no private person or Chowkidar responded to that firing from neighbourhood---Complainant had stated that he secured four empties of T.T. pistols but Head Constable/witness had stated that five empties of T.T. pistols were secured from the place of incident---Complainant had stated that he did not make effort to act as mashir whereas Head Constable/witness had stated that the complainant made effort to call private person to act as mashir---Complainant had stated that they had seen accused jointly from ten steps away whereas other witness had stated that he had seen the accused from about forty steps away---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Benefit of doubt---Principle---Benefit of doubt, if any, arising in the prosecution case would be extended to the accused not as a matter of grace, but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Imdad Ali Malik along with Asif Ali Buriro for Appellants.

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

2023 M L D 366

[Sindh]

Before Mohammed Karim Khan Agha and Arshad Hussain Khan, JJ

Mst. SAKINA alias SIKKO and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 71, 72 and 81 of 2021, decided on 8th December, 2021.

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

----Ss. 9(c) & 29--- Transportation of narcotics--- Presumption from possession of illicit articles---Appreciation of evidence---Scope---Accused persons were alleged to have been found in possession of charas---First Information Report was lodged with promptitude giving no time for concoction---Vehicle in which the accused persons were travelling in and where it would be was based on spy information which clearly mentioned that women would be in the car which led to the calling of lady police officers in order to search the ladies---Arrest and recovery was made from each of the accused persons on the spot---No major contradictions were found in the evidence of the prosecution witnesses---Once the recovery had been proved the onus shifted to the accused persons to show their innocence in that at least they had no knowledge of the narcotics---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 its recovery to the time when it was taken for chemical analysis and no suggestion of tampering with the same was even made---Prosecution had proved its case beyond a reasonable doubt against the accused persons and as such their conviction was up-held---Accused persons were found to be in possession of little over 3 kilograms of charas and each were sentenced to 10 years rigorous imprisonment with fine, however, as per sentencing guidelines the appropriate sentence was rigorous imprisonment for 6 years and 6 months along with fine---Sentences of the accused persons were reduced accordingly---Appeals were dismissed.

Khair-ul-Bashar v. The State 2019 SCMR 930; Abdul Ghani v. The State 2019 SCMR 608; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Nigar Ahmad v, The State 2013 YLR 196; Ghous Bux v. The State 2004 Cr.LJ 843; Ghulam Murtaza v. State PLD 2009 Lah. 362; Ibrar Ullah v. The State 2021 SCMR 128; DS Pakistan Railway, Quetta v. Abdul Sattar 2020 SCMR 1001; Mushtaq Ahmad v. The State 2020 SCMR 474; Zakir Khan v. State 1995 SCMR 1793; Hussain Shah and others v. The State PLD 2020 SC 132; The State v. Abdali Shah 2009 SCMR 291; Zahid and Riaz Ali v. State dated 03-03-2020 in Jail Appeal No.172 of 2018 and Muhammad Hanif v. The State 2003 SCMR 1237 ref.

Nadir Khan v. State 1998 SCMR 1899 and Mehboob-ur-Rehman v. State 2010 MLD 481 rel.

(b) Criminal trial---

----Evidence of police officials---Scope---Evidence of a police witness is as reliable as any other witness provided that no enmity exists between them and the accused.

Mushtaq Ahmad v. The State 2020 SCMR 474 ref.

(c) Criminal trial---

----Minor contradictions---Scope---Minor contradictions which do not affect the materiality of the evidence can be ignored.

Ghulam Murtaza and another v. The State PLD 2009

Lah. 362 ref.

(d) Criminal trial---

----Duty of prosecution---Scope---It is for the prosecution to prove its case against the accused beyond reasonable doubt.

Zakir Hussain Bughio for Appellants (in Criminal Appeals Nos. 71, 72 and 81 of 2021).

Ali Haider Saleem, Additional Prosecutor General, Sindh for the State (in Criminal Appeals Nos. 71, 72 and 81 of 2021).

2023 M L D 380

[Sindh]

Before Kausar Sultana Hussain, J

MAHMOOD ANDHA---Petitioner

Versus

VIITH RENT CONTROLLER KARACHI, SOUTH and another---Respondents

C.P. No. S-553 of 2020, decided on 29th May, 2021.

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

----S. 15---Civil Procedure Code (V of 1908), O. I, R. 10---Eviction petition---Court may strike out or add parties---Scope---Landlord sought eviction of tenant through an application before the Rent Controller---Petitioner/intervener filed application under O. I, R. 10, C.P.C., claiming to be in possession of the demised premises and paying rent to the actual landlord---Application under O. I, R. 10, C.P.C., was concurrently dismissed--- Validity--- Landlord had admitted the occupation of petitioner over the demised premises---Administration of justice demand that all parties having interest in the property should be before the Court and heard to defend their rights---Rent Controller had jurisdiction to decide the existence of relationship between the parties---Sindh Rented Premises Ordinance, 1979 was a special law and no procedure for impleading necessary parties was provided therein, therefore, the procedure provided in O. I, R. 10, C.P.C. was applicable to such cases---Constitutional petition was allowed and the petitioner was ordered to be impleaded as party.

(b) Interpretation of statutes---

----Special and general law---Scope---Procedure prescribed in the Civil Procedure Code can be applied only where the special law does not provide for that procedure.

Barrister Mujtaba Sohail Raja for Petitioner.

Javed Ahmed Kalwar, A.A.G. Sindh for the State.

Naeem Suleman for Respondent No. 2.

2023 M L D 390

[Sindh]

Before Rashida Asad, J

IRSHAD AHMED---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1079 of 2020, decided on 22nd December, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-D & 34---Attempt to commit qatl-i-amd, jaifah, common intention---Bail, refusal of---Petitioner moved his bail application on the grounds of being senior citizen, COVID-19 and delay in conclusion of trial---Scope---Court had refused the anticipatory bail application of accused and after dismissal of the said bail application, he remained fugitive from law for more than 3 years---Such conduct on the part of the applicant prima facie showed that he thwarted the process of investigation as well as trial---In cases where bail was sought on the ground of statutory delay in conclusion of trial, conduct of the accused was to be seen, such as whether delay was designed by the accused side by adopting various modes and if the court reached on the conclusion from any source that delay was designed by the accused, in such situation, even on delayed ground, bail would not be granted---Admittedly, the trial was at the verge of conclusion and delay in conclusion of trial could not exclusively be attributed to the prosecution but the defence was also equally responsible---Being a senior citizen could not be the basis of granting bail---No report regarding infirmity or sickness of the petitioner was available on record---Government had taken steps to provide complete protection to the prisoners inside the jails against COVID-19 and the applicant had failed to place anything on record showing that the he was suffering with any serious health issue, therefore, that submission of the applicant was misconceived--- Bail petition was dismissed, in circumstances.

Raja Muhammad Nadeem v. The State and another PLD 2020 SC 282; Muhammad Azeem v. The State and others 2020 SCMR 458; Irfan Masih v. The State and others 2020 MLD 1877; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Faisal Jaffari v. The State 2019 MLD 1436 and Babar Hussain v. The State and others 2016 SCMR 1538 ref.

Liaqat Hussain v. Federation of Pakistan 1999 PLD SC 504 and Haji Muhammad Siddique and others v. The State PLD 1994 SC 93 rel.

(b) Criminal trial---

----Abscondence---Scope---Unexplained noticeable abscondence of an accused deprived him some of the normal rights granted to him by procedural as well as substantive law.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-D & 34---Attempt to commit qatl-i-amd, jaifah, common intention---Bail, refusal of---Old age---Scope---Old age itself was no ground for grant of bail unless the person was sick and infirm.

(d) Administration of justice---

----Every case had to be decided on its own peculiar facts and circumstances and courts were required to exercise jurisdiction independently.

The State v. Haji Kabeer Khan PLD 2005 SC 364 and Muhammad Faiz alias Bhoora v. The State and another 2015 SCMR 655 rel.

Mushtaq Qadri and Muhammad Ovais Malano for Applicant.

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

Muhammad Hanif Samma for the Complainant.

2023 M L D 400

[Sindh (Sukkur Bench)]

Before Zafar Ahmed Rajput and Amjad Ali Sahito, JJ

MUHAMMAD MUNAWAR ARAIN and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) and others---Respondents

Constitutional Petitions Nos. D-753, D-893 and D-1120 of 2021, decided on 12th October, 2021.

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

----Ss. 9(a)(vi) & 9(b)--- Constitution of Pakistan, Art. 199--- Constitutional petition---Bail, refusal of---Prima facie case---Petitioner was in charge of Wheat Procurement Center who submitted false/bogus dispatch reports--- On reconciling of dispatch reports carried out by authorities, it transpired that huge amount of wheat was short and amount of Rs.12,527,200/- was misappropriated causing loss to national exchequer---Validity---No mala fide or ill will was pointed by accused petitioner against investigating officer or NAB authorities---Sufficient material/evidence was available on record to connect accused persons with alleged misappropriation of government wheat and had caused loss of millions to government exchequer---Bail was declined, in circumstances.

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

----Ss. 9(a)(vi) & 9(b)--- Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Financial benefits, absence of---Case of further inquiry---Petitioner was neither in charge of food center or godown nor he misappropriated wheat bags---No allegation against petitioner that he submitted false and bogus dispatch reports---Petitioner did not receive any financial benefits---No evidence was brought on record which could suggest any mens rea or criminal intention on the part of petitioner---Case of petitioner required further inquiry---Reference had already been filed and he was no more required by NAB for further inquiry--- Bail was allowed, in circumstances.

Qurban Ali Malano, Nisar Ahmed Bhanbhro and Abdul Majeeb Shaikh for Petitioners.

Mujeeb-ur-Rehman Soomro, Spl. Prosecutor, NAB.

Ali Raza Pathan, Assistant Attorney General.

2023 M L D 426

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

LIAQAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-192 of 2019, decided on 26th November, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the nephew of the complainant---Record showed that three eye-witnesses had fully supported the case of prosecution and no major contradiction had been found in their evidence---Recovery of crime weapon was affected on the pointation of accused from the house of deceased and the accused was also residing in the same house as had been disclosed by the witnesses during their cross-examination---Identification of accused in night time was too not questionable as the accused was residing with the deceased and was nearest relative to the deceased and the witnesses who had good look on the accused at the time of incident and had deposed against him---Record transpired that it was the accused who had a motive for committing murder of the deceased and caused fatal injury to the deceased resulting death---No major contradiction in the evidence was pointed out by the defence for allowing benefit of the doubt to the accused---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal against conviction was dismissed accordingly.

Farooque Ahmed and others v. Sobharo and others 2020 PCr.LJ Note 130; Altaf Hussain v. The State 2019 SCMR 274; PLD 2019 SC 527; Taj Muhammad and 2 others v. The State 2020 PCr.LJ 1693; Tariq Pervez v. The State 1995 SCMR 1345; Shafique Shah and another v. The State 2010 PCr.LJ 1156; Akhtar v. The State 2020 SCMR 2020; Muhammad Shakeel v. The State 2006 SCMR 1791; The State/ANF v. Muhammad Arshad 2017 SCMR 283; Farooq Khan v. The State 2008 SCMR 917; Abdul Khalique v. The State 2020 SCMR 178; Abdul Khaliq v. The State 2021 SCMR 325; Abdul Aziz alias Abdullah v. The State SBLR 2020 Sindh 122 and Muhammad Bilal v. Jan Muhammad and another 2020 PCr.LJ Note 128, p.170 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Related and interested witness---Reliance---Scope---Accused was charged for committing murder of the nephew of the complainant---Defence alleged that the witnesses were near relatives to the deceased and were interested therefore their evidence could not be relied upon---Said plea of defence had no force as in the present matter, the eye-witnesses had sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence and were also nearest relatives of the accused having no enmity with him---Suggestion made to witnesses in respect of enmity in absence of proof had no value in the law---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Weapon of offence was recovered on the pointation of accused---Reliance---Scope---Accused was charged for committing murder of the nephew of the complainant---Only the accused knew about the crime weapon used in the commission of offence as to where he concealed it---Accused after his arrest pointed the place where it was hidden and produced the same weapon before the Investigating Officer in presence of private mashirs---No enmity had been even suggested against the Investigating Officer for foisting the same against the accused---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal against conviction was dismissed accordingly.

(d) Criminal trial---

----Witness---Contradictions in the statements of witnesses---Scope---If prosecution established its case beyond reasonable doubt, some minor contradictions, which were available in each and every case was to be ignored.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Muhammad Ali Dayo for Appellant.

Khalil Ahmed Maitlo, D.P.G. for the State.

2023 M L D 469

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Kausar Sultana Hussain, JJ

QADIR BUX---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-122 and Confirmation Case No. 25 of 2016, decided on 14th April, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Accused was charged for committing murder of daughter of the complainant by inflicting hatchet blows---Prosecution had examined three eye-witnesses---All the eye-witnesses had deposed that accused after committing the murder of victim ran away---All the witnesses were cross examined at length but nothing favourable to the accused came on record---All the eye-witnesses including the father of deceased were natural witnesses being the residents of house infront of which occurrence had taken place---Said witnesses had no enmity to falsely implicate the accused in the case---As prosecution failed to prove motive against the accused, thus death penalty was reduced to imprisonment for life---Appeal against conviction was dismissed with the modification in sentence.

Mst. Nazia Anwar v. The State and others 2018 SCMR 911 ref.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Related witnesses---Scope---Testimony of the eye-witnesses could not be discarded because of their relationship inter se as well as with the deceased.

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

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Motive was not proved---Scope---Accused was charged for committing murder of daughter of the complainant by inflicting hatchet blows---Motive was against the father of deceased and uncles but prosecution failed to satisfy as to why the daughter of complainant was killed by the accused---Other eye-witnesses had also not mentioned the motive, which was set up in the FIR---Investigation Officer did not interrogate or investigate about the motive as set up in the FIR---Trial Court had also recorded the statement of accused under S. 342, Cr.P.C., in a very casual manner and question regarding motive was not put to the accused---As the prosecution failed to prove motive against the accused, thus death penalty was reduced to imprisonment for life---Appeal against conviction was dismissed with the modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Quantum of sentence---Accused was charged for committing murder of daughter of the complainant by inflicting hatchet blows---Motive had been set up in the FIR that accused was addict of the narcotics and he was restrained by complainant and his uncles but without any result---Prosecution case was that accused committed the murder of daughter of complainant as he was ousted from village by complainant and uncles of accused, thus, accused had specific motive against the complainant and his uncles but it was not clear as to why accused committed the murder of deceased girl---Investigating Officer had also failed to interrogate/investigate about the motive as set up in the FIR---Prosecution had failed to prove motive from some independent piece of evidence---Medical Officer conducted the post-mortem examination of the deceased and found her victim of sexual abuse---Chemical Examiner's report showed that human sperms were detected---Such circumstances of the case had put to a caution in the matter of sentence of accused---Whole prosecution evidence was silent on that aspect of the case---Real cause of occurrence was shrouded in mystery and was completely suppressed by both the parties---When prosecution asserted a motive but failed to prove the same then failure on the part of prosecution might react against the sentence of death---High Court observed that life imprisonment would be appropriate, in circumstances---Death penalty was reduced to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

Mst. Nazia Anwar v. The State and others 2018 SCMR 911 rel.

Omparkash H. Karmani for Appellant.

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

2023 M L D 492

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Kausar Sultana Hussain, JJ

ZAHID ALI KHASKHELI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-95 and Confirmation Case No. 14 of 2019, decided on 22nd April, 2021.

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

----Ss. 302(b), 324, 449, 337-A(i), 337-F(i), 337-F(ii), 114 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass in order to commit offence punishable with death, Shajjah-i-khafifah, ghayr-jaifah-mudihah, badiah, abetment, common intention---Appreciation of evidence---Previous statement, adoption---Scope---Accused were charged for committing murder of father and son of complainant and causing injuries to other inmates---Record showed that after amendment of the charge four witnesses were re-called and re-examined in terms of the order but they did not give the complete evidence and gave only evidence in 2/3 lines then they adopted their evidence already recorded---Notable that firstly accused was arrested and three witnesses were examined, thereafter co-accused was arrested and then the charge was amended---Evidence of three witnesses was recorded and at that time co-accused was not present before the court---Requirement of the law was that evidence should be recorded in presence of the accused, inspite of that evidence of four witnesses which was earlier recorded was adopted---Such procedure adopted by the Trial Court was illegal---Appeal was allowed, in circumstances and matter was remanded to the Trial Court to record the evidence of the prosecution witnesses afresh.

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

----Ss. 302(b), 324, 449, 337-A(i), 337-F(i), 337-F(ii), 114 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass in order to commit offence punishable with death, Shajjah-i-khafifah, ghayr-jaifah-mudihah, badiah, abetment, common intention---Appreciation of evidence---Evidence not put the accused---Effect---Accused were charged for committing murder of father and son of complainant and causing injuries to other inmates---Motive was set up in the FIR that accused committed offence as the marriage of his previous wife was dissolved by means of Khula which caused much annoyance to the accused---Trial Court while recording the statement of accused under S. 342, Cr.P.C., failed to put up question of said motive to accused---Appeal was allowed, in circumstances and matter was remanded to the Trial Court with the direction to record the evidence of the prosecution witnesses afresh and then to record the statement of accused under S. 342, Cr.P.C. afresh by putting him all pieces of prosecution evidence, enabling him to know and explain the same.

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

----S. 342---Piece of evidence not put to an accused during his examination under S. 342, Cr.P.C., could not be used against him. [p. 503] C

Muhammad Yousif Leghari for Appellant.

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

2023 M L D 522

[Sindh]

Before Muhammad Shafi Siddiqui, J

MUHAMMAD AKRAM---Petitioner

Versus

Messrs JAMIA IMAMIA TRUST through Representative/Rent Controller---Respondent

C.P. No. S-2129 of 2018, decided on 20th April, 2021.

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

----S. 15---Eviction petition---Trust property---Management of the trust, relevance of--- Personal requirement--- Scope---Trust/landlord filed eviction application on the ground of default and personal requirement for the extension of Madarsa and for teachers to provide them some residential accommodation---Eviction application was concurrently allowed on the ground of personal requirement---Contention of tenant was that Trust Deed had expired; that the trustees were not cited as witnesses and that the eviction application was filed by an unauthorized person---Validity---Held, it was immaterial for the tenant as to who were the trustees and how those trustees were being replaced---Such was indoor/internal management of the trustees and trust which had nothing to do with the relationship of landlord and tenant---Resolution in favour of the attorney to initiate legal proceedings was duly filed---Statement on oath of the landlord regarding personal requirement was not seriously shattered in the cross-examination except a suggestion that for the accommodation of teachers' residence flats at the premises could be more suited---Choice of a premises was prerogative of the landlord and this could not be left at the decision/option of the tenant as to which premises was more suited for the landlord---Constitutional petition was dismissed.

S.M. Abid Ali Qadri for Petitioner.

Ms. Mehreen Ebrahim for Respondent No. 1.

2023 M L D 535

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Mohammed Karim Khan Agha, JJ

ANWAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-50 of 2008, decided on 19th May, 2017.\

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

----S. 9(c)--- Recovery of narcotic substance---Proof---Benefit of doubt---Applicability---Charas weighing 1500 grams in total was recovered from accused who was convicted by Trial Court and sentenced to imprisonment for three years---Validity---Safe custody of Charas after its recovery was not established by cogent and confidence inspiring evidence---Departure entry was produced in evidence but there was also overwriting in that entry without explanation---No evidence was on record to the effect that sample was taken from each slab of Charas recovered from possession of accused, so also from cavity of Motorcycle for chemical analysis---Such was also not clear that how many grams were taken from each piece of Charas---Mere word of official was not sufficient to hold accused guilty of an offence without independent corroboration, which was lacking---Not necessary that there should be many circumstances creating doubts---If there was a single circumstance, which had created reasonable doubt in a prudent mind about guilt of accused, then accused was entitled to the benefit not as a matter of grace and concession but as a matter of right---High Court extended benefit of doubt to accused, set aside conviction awarded to him as prosecution failed to prove its case against him beyond reasonable shadow of doubt and was acquitted of the charge---Appeal was allowed in circumstances.

Naimatullah Khan v. The State 2012 YLR 251 ref.

Ikramullah and others v. The State 2015 SCMR 1002 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Muhammad Sharif Siyal for Appellant.

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

2023 M L D 548

[Sindh (Larkana Bench)]

Before Irshad Ali Shah and Agha Faisal, JJ

SONO KHUHAWAR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-18 and Criminal Confirmation Case No. D-18 of 2021, decided on 16th February, 2022.

Criminal Procedure Code (V of 1898)---

----S. 540---Constitution of Pakistan, Art. 10-A---Power to summon material witness or examine persons present---Right to fair trial---Scope---Provisional and final medical certificates with regard to injury allegedly sustained by the injured person were taken on record by the Trial Court without putting the accused or his counsel on notice---Case being a murder appeal in all fairness, after closure of side; those documents ought to have been brought on record in terms of mandate contained by S. 540, Cr.P.C., by summoning its author---Without having such recourse by taking those documents on record, the accused had been prejudiced in his defence seriously, which was contrary to the mandate contained in Art. 10-A of the Constitution, which prescribed the right of fair trial to every person---Impugned judgment was set aside with direction to the Trial Court to bring the documents on record in terms of mandate contained in S. 540, Cr.P.C. by summoning its author and then decide the case afresh---Appeal was disposed of accordingly.

Rafique Ahmed Abro for Appellant.

Complainant in person.

2023 M L D 561

[Sindh (Sukkur Bench)]

Before Muhammad Faisal Kamal Alam, J

AMEER AHMED---Applicant

Versus

PROVINCE OF SINDH through Secretary Revenue Sindh, Secretariat Karachi and 5 others---Respondents

Civil Revision Application No. S-74 of 2020, decided on 14th March, 2022.

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

----S. 53---Civil Procedure Code (V of 1908), O. VII, R. 11---Entry in revenue record---Plea of fraud---Plaint challenging entry rejected by Trial Court---Validity---Applicant purchased the land by way of registered sale deed regarding which the entry was kept---Huge portion of land was transferred in the name of respondent merely on oral statement---According to official version, record of such oral statement was untraceable---In the plaint it was specifically pleaded that when applicant acquired knowledge about the alleged fraudulent entry, he took steps to safeguard his interest---If the entire revenue remedy was not exhausted, then considering S. 53 of the Sindh land Revenue Act, 1967, the title dispute was to be adjudicated upon by the Civil Courts---Plaint of applicant could not have been rejected in such a cursory and mechanical manner as had been done by the Trial Court as well as Appellate Court---Courts had to see and evaluate right and interest of a person/litigant in view of documents produced by him/her---Applicant was deriving its title from a registered sale deed which had been given recognition by the Revenue Official/respondent by keeping a mutation entry---Where prima facie there was a strong case of entitlement in favour of a person, he should not be non-suited, merely on ground that one of the final remedies was not exhausted under the revenue hierarchy, which remedy otherwise appeared to have become illusory in nature---In case in hand, there was ex facie triable issues involved which could only be decided after leading evidence---Civil revision was allowed and case was remanded to Trial Court, in circumstances.

Abad Muhammad through his Legal Heirs and another v. Mst. Sakina and another PLD 1987 Revenue 25; Mazloom Hussain v. Abid Hussain and 4 others PLD 2008 SC 571; Muhammad Ishaq v. Member (R), Board of Revenue, Punjab, Lahore and 18 others 1994 MLD 2254 and Jan Muhammad and another v. Abdul Aziz PLD 1986 Rev. 150 distinguished.

Raj Kumar D. Rajput for Applicant.

Abdul Rehman Siddique for Respondent No. 2.

Noor Hassan Malik, Assistant Advocate General along with Ayaz Ahmed Tapadar, Imtiaz Ali Buriro Tapadar and Amir Ali concerned/litigation Mukhtiarkar Office, Rohri.

2023 M L D 562

[Sindh]

Before Mohammed Karim Khan Agha and Kausar Sultana Hussain, JJ

NADEEM alias MANGA and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 47 and 48 of 2018, decided on 2nd November, 2021.

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

----Ss. 302(b), 324, 114 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Disclosure of accused---Scope---Accused were charged for committing murder of the brother of complainant by firing---Except identification parade, pointation of place of occurrence by the accused and the disclosure by accused by themselves, no other tangible evidence was on record against them---Pointation of the wardat by the accused after the commission of the crime was of no relevance as the police already knew where the wardat took place---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.

Hayatullah v. The State 2018 SCMR 2092 rel.

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

----Ss. 302(b), 324, 114 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Confession before police---Scope---Accused were charged for committing murder of the brother of complainant by firing---Confession of the accused persons before the police that they committed the murder was inadmissible in evidence---No effort was made by the police to record the confession of the accused persons under S. 164, Cr.P.C., before a Judicial Magistrate despite their being produced before a Judicial Magistrate for an identification parade---In the present case, it did not appeal to logic, reason or common sense that the accused whilst in custody in a non-capital punishment case would admit to their involvement in such case without their being a shred of evidence against them for that offence---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) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 114 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Test identification parade---Scope---Accused were charged for committing murder of the brother of complainant by firing---Eye-witness stated that he had seen three persons come on a motor cycle near his thelha two of whom got off the motorcycle and went into the shop of the deceased and fired upon him with pistols which caused his death---Six weeks later he picked out all the accused at an identification parade held by Judicial Magistrate---Although it was a day light incident, however eye-witness appeared to be a chance witness---Eye-witness did not know any of the accused persons prior to the incident and would have only got a fleeting glance at them during a dangerous and traumatic incident---Eye-witness could not prepare a sketch of the accused on the day of the incident as he was unable to describe the features of the accused it beg the question as to how he could have possibly correctly identified the accused at the identification parade which was held six weeks later---Even otherwise it was found that the identification of that eye-witness of the accused at the identification parade to be of little value as prior to the identification parade a news paper published a picture/photograph of all the accused allegedly involved in the murder which could easily have been seen by the eye-witness which was also pointed out by the accused to the Judicial Magistrate during their identification parade---Other eye-witness stated during his evidence that one of the culprit was wearing black colour mask, who restrained him and caused fire shots to deceased---Remaining one accused was with green mask and third one was wearing helmet---If the evidence of second eye-witness was to be believed then it directly contradicted the evidence of first eye-witness as according to that eye-witness he was able to recognize the accused which would have been impossible if the accused were wearing masks---Such was a material contradiction which could not be overlooked with regard to the sensitive and crucial issue of identification keeping in view the other holes in the evidence of the eye-witness identification evidence of eye-witness---Eye-witness appeared to be a stock police eye-witness who gave evidence for the prosecution in a different cases as eye-witness on behalf of the police---Having found that the eye-witness would not have been able to correctly, safely and reliably identify the accused if seen again the conduct of the identification parade become inconsequential---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.

Hayatullah v. The State 2018 SCMR 2092; Noor Islam v. Ghani ur Rehman 2020 SCMR 310; Muhammad Ayaz v. The State 2011 SCMR 769; Gulfam and another v. The State 2017 SCMR 1189; Muhammad Akram v. The State 2009 SCMR 230; Fazal Subhan v. The State 2019 SCMR 1027; In the matter of Criminal Misc. No.183 of 2019 in Criminal Appeal No.259/2018 (PLD 2019 SC 488); Zahid Imran v. The State PLD 2006 SC 109; Manzar Ullah v. Asghar and 3 others 2018 YLR 1508; Muhammad Ali v. The State PLD 2012 Sindh 272; Ameer Khan v The State 2014 PCr.LJ 989; Rasool Bakhsh v. The State PLD 1970 SC 316; Faisal Aleem v. The State PLD 2010 SC 1080; Shafqat Mehmood v. The State 2011 SCMR 537; Muhammad Zaman v. The State 2014 SCMR 749; Muhammad Zaman v. The State 2007 SCMR 813 and Ghazanfar Ali alias Pappu v. The State 2012 SCMR 215 ref.

State v. Muhammed Dawood ATC Case 37 of 2014 rel.

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

----Ss. 302(b), 324, 114 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Withholding best evidence---Scope---Accused were charged for committing murder of the brother of complainant by firing---Best eye-witness who was allegedly injured at the scene at the same time when the deceased was murdered and was named in the FIR and charged as being injured at the scene by firearm did not appear as a witness despite being listed as a prosecution witness who would have been an extremely important natural eye-witness in corroborating the other eye-witnesses evidence and in particular that of the correct identification of the accused---Presumption could be drawn under Art. 129(g), Qanun-e-Shahadat, 1984 that he would not have supported the prosecution case especially in terms of a correct identification of the accused---Prosecution had, therefore for reasons best known to itself deliberately withheld the best evidence---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.

Riaz Ahmed v. The State 2010 SCMR 846 and Shakeel and another v. The State 2019 MLD 1554 rel.

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

----Ss. 302(b), 324, 114 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Medical evidence---Scope---Accused were charged for committing murder of the brother of complainant by firing---No eye-witness evidence as to the correct identity of the persons who allegedly committed the murder of the deceased was available---Medical evidence became inconsequential as it could only reveal how the deceased died, what kind of weapon was used and the seat of the injuries---Medical evidence could not identify the person who inflicted the injuries---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.

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

----Ss. 302(b), 324, 114 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Recovery of crime empties---Scope---Accused were charged for committing murder of the brother of complainant by firing---No pistol was recovered from any of the accused persons at the time of their arrest---Forensic Science Laboratory Report on the empties recovered at the scene could not link the accused persons to the murder of the deceased---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.

(g) Criminal trial---

----Benefit of doubt---Principle---Prosecution must prove its case against the accused beyond a reasonable doubt and that the benefit of doubt would go to the accused by way of right as opposed to concession.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Khalid Hashmat for Appellants (in Special A.T. Appeal No. 47 of 2018).

Rawas Khan and Ms. Shabana Khan for Appellants (in Special A.T. Appeal No. 48 of 2018).

Abrar Ali Khichi, Additional Prosecutor General, Sindh for the State (in Special A.T. Appeals Nos. 47 and 48 of 2018).

2023 M L D 578

[Sindh]

Before Khadim Hussain M. Shaikh, J

MAQBOOL AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 496 of 2018, decided on 14th September, 2020.

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

----Ss. 324, 365-B, 147, 148, 149 & 511---Attempt to commit qatl-i-amd, kidnapping, abducting or inducing woman to compel for marriage etc., rioting, rioting armed with deadly weapon, unlawful assembly, attempt to commit offence---Appreciation of evidence---Delay of fourteen hours in lodging the FIR---Effect---Accused was charged that he and co-accused kidnapped the wife of nephew of complainant and caused firearm injuries to her husband---Motive behind the incident was over the love marriage of a man of complainant party with the girl of accused party---Record showed that there was delay of fourteen hours in lodgement of the FIR without proper explanation---Under the given circumstances, the possibility of false implication of the accused after consultations and deliberations could not be ruled out, more particularly, when the complainant in the FIR had stated that it was lodged by him after the consultations with his elders---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 365-B, 147, 148, 149 & 511---Attempt to commit qatl-i-amd, kidnapping, abducting or inducing woman to compel for marriage etc., rioting, rioting armed with deadly weapon, unlawful assembly, attempt to commit offence---Appreciation of evidence---Motive was not proved---Scope---Accused was charged that he and co-accused kidnapped the wife of nephew of complainant and caused firearm injuries to her husband---Motive behind the incident was over the love marriage of a man of complainant party with the girl of accused party---In the present case, the motive was not directed against the accused to commit the alleged offence rather it was directed against two accused persons, who allegedly instigated the other accused to commit the offence, who had been acquitted of the charge vide impugned judgment but no appeal against their acquittal had been filed either by the complainant or by the State---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 365-B, 147, 148, 149 & 511---Attempt to commit qatl-i-amd, kidnapping, abducting or inducing woman to compel for marriage etc., rioting, rioting armed with deadly weapon, unlawful assembly, attempt to commit offence---Appreciation of evidence---Benefit of doubt---Night time occurrence---No source of light---Scope---Accused was charged that he and co-accused kidnapped the wife of nephew of complainant and also caused firearm injuries to her husband---Record showed that during the investigation, present accused was found innocent and his name was placed in column No.2 of the challan, however, the Trial Court had joined him in the trial without any material worth consideration against him---Alleged injuries on the person of injured were on the back of right side of his chest---Admittedly, the night of the incident was a dark night and there was no proper source of identification---Complainant had stated that the source of identification of the accused was the light of a hurricane lamp [lantern] and it was hardly believable that on the light of a hurricane lamp the accused numbering eleven could be recognized with descriptions of the weapons allegedly carried by them and that too under such terrorized circumstances---Alleged hurricane lamp was not secured by the police during the investigation---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 365-B, 147, 148, 149 & 511---Attempt to commit qatl-i-amd, kidnapping, abducting or inducing woman to compel for marriage etc., rioting, rioting armed with deadly weapon, unlawful assembly, attempt to commit offence---Appreciation of evidence---Benefit of doubt---Presence of alleged eye-witness at place of occurrence doubtful---Chance witness---Scope---Accused was charged that he and co-accused kidnapped the wife of nephew of complainant and caused firearm injuries to her husband---Complainant was resident of a village at the distance of one mile from village of the injured----Complainant, therefore, was apparently a chance witness and he was not alleged to be an injured person and his presence in the house of injured during odd hours of the night at 02.30 a.m. could not be established by the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 365-B, 147, 148, 149 & 511---Attempt to commit qatl-i-amd, kidnapping, abducting or inducing woman to compel for marriage etc., rioting, rioting armed with deadly weapon, unlawful assembly, attempt to commit offence---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused was charged that he and co-accused kidnapped the wife of nephew of complainant and also caused firearm injuries to her husband---Injured witness deposed that accused by putting his weapon on his back made fire and his wife deposed that the accused fired upon her husband from very close range, however, Medico Legal Officer stated that the fire shot was made at the injured from the distance of 25 feet and there was no blackening around the injuries---Medico Legal Officer further stated that the sizes of the injuries were not the same---Reports were received from Civil Hospital in respect of injured after one year---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 365-B, 147, 148, 149 & 511---Attempt to commit qatl-i-amd, kidnapping, abducting or inducing woman to compel for marriage etc., rioting, rioting armed with deadly weapon, unlawful assembly, attempt to commit offence---Appreciation of evidence---Benefit of doubt---Medical evidence in conflict with the ocular evidence---Scope---Accused was charged that he and co-accused kidnapped the wife of nephew of complainant and also caused firearm injuries to her husband---Complainant stated that injured remained admitted in hospital at "K" for one month and three days---Injured stated that he remained admitted in hospital at "K" for about two months---Other witness stated that injured remained admitted for a month and few days---Final Medico Legal Certificate, produced by the Medico Legal Officer revealed that injured was admitted in Civil Hospital "K" for ten days---Medical evidence, thus, was in conflict with the ocular evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Benefit of doubt---Principle---Although the benefit of doubt, if any, arising in the prosecution case is to be extended to the accused not as a matter of grace, but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Ashraf Kazi and Irshad Ahmed Jatoi for Appellant.

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

Complainant and injured are present.

2023 M L D 594

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui and Khadim Hussain Tunio, JJ

ZAHOOR AHMED and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeals Nos. D-50 of 2015 and D-79 of 2017, decided on 15th December, 2020.

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

----Ss. 365-A, 395, 342 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for extorting property, valuable securities, dacoity, wrongful confinement, unlawful assembly, acts of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused kept the complainant and his cousin in their captivity for a period of one month and twenty three days and demanded ransom, which was paid and when the accused were about to release the abductees, police came to the scene and an encounter took place---Record showed that the alleged abduction took place from a bus stop at National Highway but the prosecution could not collect or produce any evidence regarding that effect---Nevertheless, even from a populous area, it was hard for the prosecution to collect and present the evidence of such type of offences in the shape of eye-witnesses and the same might be over looked but there were other aspects of the case, which required consideration---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Abdul Hamid v. The State PLD 1980 Pesh. 25; Noorul Haque v. The State 1992 SCMR 1451; Akhtiar Ali and others v. The State 2008 SCMR 6; Faheem Ahmed Farooqui v. The State 2008 SCMR 1572; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Rafique and others v. The State 2010 SCMR 385; Muhammad Zubair and 2 others v. The State 2010 PCr.LJ 1892; Faiz-ur-Rehman v. The State 2012 SCMR 538; Riasat Ali v. The State 2013 YLR 272; Muhammad Tufail v. The State 2013 SCMR 768; Muhammad Tayyab and others v. The State 2014 SCMR 314; Muhammad Saleem v. The State 2014 YLR 794; Qari Ahmed Yousif v. The State and another 2016 PCr.LJ 662; Abdul Haque v. The State 2020 SCMR 116; Ahmed Hussain alias Ami and others v. The State and others PLD 2008 SC 110 and Muhammad Anwar alias Lalu v. The State 2003 YLR 300 ref.

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

----Ss. 365-A, 395, 342 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for extorting property, valuable securities, dacoity, wrongful confinement, unlawful assembly, acts of terrorism---Appreciation of evidence---Benefit of doubt---Delay of about four months in lodging the FIR---Scope---Prosecution case was that the accused kept the complainant and his cousin in their captivity for a period of one month and twenty three days and demanded ransom, which was paid, and when the accused were about to release the abductees, police came to the scene and an encounter took place---First Information Report was delayed for about four months without any plausible explanation for the same---Admittedly, in such types of offences, the anxiety of the relatives of abductees was regarding their safe recovery due to which the FIR was usually delayed till the recovery of the abductees---Nonetheless, in the present case allegedly the complainant and his cousin were recovered during an alleged police encounter---Even then the complainant party remained tongue-tied for another period of about one and half months without any reason---Said silence spoke loudly regarding the reliability of the prosecution's story---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 365-A, 395, 342 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for extorting property, valuable securities, dacoity, wrongful confinement, unlawful assembly, acts of terrorism---Appreciation of evidence---Benefit of doubt---Contradiction in the statements of witnesses---Scope---Prosecution case was that the accused kept the complainant and his cousin in their captivity for a period of one month and twenty three days and demanded ransom, which was paid and when the accused were about to release the abductees, police came to the scene and an encounter took place---First Information Report indicated that the accused persons had deprived the complainant of one mobile phone and a cash amount of Rs. 8000/-but the complainant in his examination in chief stated that the accused person had snatched Rs. 18,000/- from him---Said difference in amount created doubt regarding the prosecution story as it could not be said that the same was due to fading of memory due to lapse of time---Complainant in FIR stated that at the place of their confinement two unidentified persons were available but in his examination in chief, he said that 3/4 unidentified persons were already available---Complainant in his deposition had quoted the name of an accused in a way that he was already known to him but surprisingly his name was missing in FIR though it was added through a further statement---If the complainant was already known and identified that accused then why his name did not appear at the first instance in FIR, and on that score, the case of prosecution engulfed under clouds---Complainant and eye-witness were also not in agreement regarding the maltreatment by the hands of the accused persons during the course of abduction--- Another aspect of the case created serious doubt regarding the prosecution story which pertained to the payment of the ransom amount---Although it was claimed by the complainant and other witness that an amount of Rs. Two million were paid as ransom and the same was arranged by him by drawing some amount from his bank and loan collected from friends and relatives, however, neither whole or a portion of that amount was recovered from the accused nor any evidence had been brought on record for arranging the said amount through the aforementioned sources---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 365-A, 395, 342 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), S. 129(g)---Kidnapping or abducting for extorting property, valuable securities, dacoity, wrongful confinement, unlawful assembly, acts of terrorism---Appreciation of evidence---Withholding material witness---Scope---Prosecution case was that the accused kept the complainant and his cousin in their captivity for a period of one month and twenty three days and demanded ransom, which was paid and when the accused were about to release the abductees, police came to the scene and an encounter took place---Record showed that one of the witness had been given up during the trial---Record showed that in the presence of said witness, the amount of ransom was paid to the accused persons---Regarding the story of abduction and payment of ransom amount, the said person was the witness to be considered as best available evidence---Non-examination of said witness had badly damaged the prosecution case in view of the provision under Art. 129(g) Qanun-e-Shahadat, 1984---Allegedly, abductees were recovered during a raid regarding which another FIR was lodged but surprisingly, none of the members of the raiding Police Party was examined in that case---Even the prosecution did not did not bother to produce in that case the memo of recovery of both the abductees during the encounter, which also created doubt regarding the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Khan Muhammad Sangi and Nadeem Ahmed Malik for Appellants.

Nisar Ahmed Banbhro for the Complainant.

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

2023 M L D 611

[Sindh]

Before Zulfiqar Ahmad Khan, J

Khawaja TARIQ SIDDIQ---Plaintiff

Versus

CHAIRMAN, KARACHI ELECTRIC SUPPLY CORPORATION LTD. and 7 others---Defendants

Suit No. 1541 of 2009, decided on 29th September, 2022.

Defamation Ordinance (LVI of 2002)---

----S. 13---Suit for recovery of damages---Malicious prosecution---Civil Court---Jurisdiction---Plaintiff was aggrieved of registration of criminal case for stealing electricity in his hotel---Plaintiff was acquitted of the charge---Plaintiff sought recovery of damages for starting campaign by defendants to defame plaintiff's hotel---Validity---Jurisdiction of Civil Court in respect of a suit for damages on the ground of loss of reputation and defamation was expressly barred by S. 13 of Defamation Ordinance, 2002---Exclusive jurisdiction was conferred upon District Court to adjudicate upon such matters---Special law excluded general law and where special tribunal or Court was established to hear and decide a dispute, which was contemplated by the special law, then jurisdiction of Courts constituted under general law were ousted from exercising powers of same nature---Plaintiff might have a good case of malicious prosecution as he claimed to have been acquitted of the charge after full-fledged trial in FIR lodged under S. 39 of Electricity Act, 1910 by Trial Court and appeal against acquittal was dismissed by High Court---Plaintiff did not possess any authorization on behalf of the Hotel to sue defendants for damages and compensation---High Court declined to interfere in the matter--- Suit was dismissed, in circumstances.

Sui Northern Gas Pipelines Limited v. Noor CNG Filling Station 2022 SCMR 1501 and Pakistan Herald Publications (Pvt.) Limited and 2 others v. Karachi Building Control Authority 2012 CLD 453 ref.

Plaintiff in person.

Sehar Rana along with Sameer Tayebaly and Ms. Falak Naz Fatima for Defendants Nos. 1 to 7.

Ex parte Defendant No. 8.

2023 M L D 625

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD RAMZAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1453 of 2021, decided on 6th September, 2021.

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

----Ss. 497 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25---Trafficking of narcotics---Bail, refusal of---Mode of making searches and arrest---Non-association of independent witnesses---Scope---Accused was alleged to have been apprehended while transporting 2.5 kilograms of methamphetamine which was concealed in a cavity specially designed for concealment under the bus---Accused was admittedly working as Munshi at the bus stand and at this stage his involvement in trafficking the narcotics could not be ruled out---No enmity, ill-will or grudge was alleged against the prosecution witnesses; on the contrary, sufficient material was brought on record by the prosecution on the record---So far as contention of the accused that recovery was not witnessed by persons from public was concerned, High Court observed that S. 25 of Control of Narcotic Substances Act, 1997, excluded the application of S. 103, Cr.P.C.---Larger interest of the public and State demanded that in case of huge recovery of contraband stuff, the discretion under S. 497, Cr.P.C., should not be exercised liberally---Bail application was dismissed, in circumstances.

Asghar Ali v. The State 2018 MLD 129; Sayed Ghulam Mustafa v. The State 2007 PCr.LJ 139; Nasir Aziz and another v. The State 2020 YLR 1429; Sher Rehman v. The State 2013 MLD 1703; Hakeem Jamali v. The State 2009 PCr.LJ 695; Kashifullah v. The State 2020 MLD 675; Umar Daraz and another v. The State 2011 PCr.LJ 559; Noshad v. The State 2012 PCr.LJ 1901; Muhammad Saeed Khan and others v. The State 2016 PCr.LJ 730; Hamayun and another v. The State 2013 YLR 2284; Musharraf Khan v. The State 2020 YLR 2060 and Saifullah v. The State 2020 YLR 151 distinguished.

The State v. Javed Khan 2010 SCMR 1989 rel.

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

----Ss. 9 & 51--- 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 the 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 Act, 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---Even otherwise, it is settled that for deciding the bail application the court has to assess the material tentatively 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 bail stage.

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

(c) Criminal trial---

----Every criminal case has its facts and circumstances.

Muhammad Jamil for Applicant.

Ms. Shagufta Perveen, Special Prosecutor Customs for the State.

2023 M L D 645

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

MUJAHID ALI---Applicant

Versus

The STATE and 4 others---Respondents

Criminal Miscellaneous Application No. S-709 of 2020, decided on 20th October, 2021.

(a) Interpretation of statutes---

----Words of statute---Scope---If words of statute are themselves clear and unambiguous, no notice is necessary to expound those words in their natural and ordinary sense---Words themselves best declare intention of legislature.

Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 and Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501 rel.

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

----Ss. 22-A, 22-B & 561-A---Inherent jurisdiction of High Court---Direction to private person---Dispute between private parties was with regard to route permit of their vehicles plying there---Ex-officio Justice of Peace issued direction in exercise of jurisdiction under Ss. 22-A & 22-B, Cr.P.C., on application filed by respondent---Validity---Ex-officio Justice of Peace did not have any authority to entertain application of respondent when it revealed that dispute was in between private parties on route permit of vans (coaches)---Such dispute did not fall within the defined domain of Ex-officio Justice of Peace under S. 22-A(6), Cr.P.C. and application should have been dismissed by him for want of jurisdiction directing respondent to adopt proper course to redress his grievance---High Court set aside order passed by Ex-officio Justice of Peace as the same was illegal, unlawful and without jurisdiction---Application was allowed, in circumstances.

Mir Muhammad Shaikh v. The State and 2 others PLD 2020 Sindh 556; Mukhtiar Ali v. The State and 4 others 2019 PCr.LJ 1201; Government of Pakistan v. Nawaz Ali Sheikh 2020 SCMR 656 and Ghulam Nabi v. Syed Ahmed Shah and 6 others 2019 MLD 1066 ref.

Miss Nusrat Yasmin. v. Registrar, Peshawar High Court, Peshawar and others PLD 2019 SC 719 and Aijaz Ahmed Tunio v. The State PLD 2021 SC 752 rel.

Shabir Ali Bozdar for Applicant.

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

2023 M L D 684

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

MUKHTIAR ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-641 of 2020, decided on 14th December, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 337-L, 337-H, 427, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, punishment for other hurt, hurt by rash or negligent act, mischief causing damage to the amount of fifty rupees, rioting, armed with deadly weapon, common object---Bail, refusal of---Vicarious liability---Delayed FIR---Scope---Name of accused appeared in the FIR with specific role as he was complained to have been armed with a Kalashnikov and fired at deceased which hit him on left elbow---Accused had actively participated in the commission of the offence---Principle of vicarious liability was attracted to the case of accused---Complainant had alleged the motive that his brother (deceased) had contracted marriage with sister of accused on which he had issued threats to commit murder---Medical officer had found the injury, attributed to the accused, fatal in nature---Delay had been duly explained in the FIR which was that the complainant had taken the dead body to the police station, postmortem was conducted, funeral rites were conducted and then he had appeared at police station for getting the FIR lodged---Prosecution witnesses in their statements under S. 161, Cr.P.C., had supported the version of FIR---Offence with which the accused had been charged entailed capital punishment, as such, fell within the prohibitory clause of S. 497(2), Cr.P.C.---Bail application was dismissed, in circumstances.

Munawar v. The State 1981 SCMR 1092; Khan Afsar v. The State and another 2020 PCr.LJ Note 195; Irfanullah v. The State 2019 YLR Note 76 and Hub Ali and another v. The State 2013 PCr.LJ 25 ref.

Inayat Ali v. The State 2008 PCr.LJ 1395; Zaka Ullah v. The State and another 2020 SCMR 452; Mohammad Faisal v. The State and another 2020 SCMR 971; Mohammad Umar v. The State and another PLD 2004 SC 477; Rasoolo v. The State 2020 PCr.LJ 166 and Tahir Zeb and others v. The State and another 2020 SCMR 1685 distinguished.

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

----S. 497--- Bail--- Deeper appreciation of evidence---Scope---Deeper appreciation of evidence is neither permissible nor warranted at bail stage but at the same time Court is not precluded from tentatively perusing the evidence of eye-witnesses, the recovery, the medical reports to form a tentative opinion to determine whether the accused was prima facie connected with the commission of offence or not.

Abdul Wahab Shaikh for Applicant.

Abdul Sattar Mahessar for the Complainant.

Shafi Mohammad Mahar, D.P.G. for the State.

2023 M L D 720

[Sindh]

Before Khadim Hussain M. Shaikh, J

SHAMAS-UR-REHMAN---Appellant

Versus

Mst. NAZEER GUL and 2 others---Respondents

Criminal Acquittal Appeal No. 102 of 2019, decided on 19th August, 2020.

(a) Appeal against acquittal---

----Double presumption of innocence---Interference---Scope---Accused was presumed to be innocent, if after trial, accused was acquitted, he earned double presumption of innocence---Acquittal judgment or order did not call for any interference unless it was found arbitrary, capricious, fanciful, artificial, shocking and ridiculous---While evaluating the evidence, difference was to be maintained in an appeal from conviction and an acquittal appeal and in the latter case the interference was to be made only when there was non-reading and gross misreading of the evidence, resulting the miscarriage of justice and on perusal of the evidence no other decision could be given except that the accused was 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.

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

----Ss. 380 & 34---Theft in dwelling house, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused were charged for committing theft of the valuable articles of the complainant lying in a bag---Record showed that none had seen the accused committing the alleged theft of bag of the complainant---Parties, who were related in that accused was admittedly sister-in-law of the appellant being real sister of his wife and whereas co-accused was husband of accused, were already tagged in litigation and such cases between them were admittedly pending in various courts---Incident was shown to have taken place in the Court premises of Judicial Magistrate, but no independent person was cited as a witness---Complainant claimed to have seen the accused in CCTV recording, but CCTV recording was not collected during the evidence as was admitted by the Investigating Officer in his evidence by stating that he had not issued any memo of receiving CCTV recording nor was it seized on the spot---No date or time was mentioned in the memo of arrest of the accused persons and seizure of the alleged bag, nor any independent person was cited as a mashir from the locality---Neither any one among the court staff was examined by the prosecution nor was even the statement under S. 161, Cr.P.C., of any of the staff member of the court was recorded---Apart from the said material discrepancies and infirmities in the prosecution case, rendering it doubtful, there were many other material contradictions, infirmities, dishonest improvements and admissions of the witnesses made during the trial---Circumstances established that acquittal judgment was apt to the facts and circumstances of the case, which suffered from no illegality or any infirmity and/or misreading and non-reading of the evidence, did not call for any interference---Appeal against acquittal was dismissed accordingly.

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

----Ss. 380 & 34---Theft in dwelling house, common intention---Appreciation of evidence---Appeal against acquittal---Delay of about three days in lodging the FIR---Effect---Accused were charged for committing theft of the valuable articles of the complainant lying in a bag---First Information Report was lodged after three days without plausible explanation thereof, which in the wake of previous hostility between the parties being fatal to the prosecution case could not be ignored--- Appeal against acquittal was dismissed accordingly.

Syed Maroof Hussain Hashmi for Appellant.

Shamsul Hadi for Respondent No. 1.

Abrar Ali Khichi, Additional Prosecutor General, Sindh for the State.

2023 M L D 731

[Sindh (Sukkur Bench)]

Before Irshad Ali Shah, J

Mst. BAKHTAWAR alias BAKHI SHAHZADI LARIK---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-58 of 2023, decided on 28th February, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Bail, grant of---Further inquiry---Female accused---Accused-lady was allegedly found in possession of 1150 grams of charas---Accused was an old and infirm lady, and there was no independent witness to the incident---Case had been challaned and there was no apprehension of tampering with the evidence on the part of the accused---In such circumstances, a case for release of the accused on the point of further inquiry was made out---Accused-lady was admitted to bail.

Manzoor Hussain Larik for Applicant.

2023 M L D 735

[Sindh]

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

SHAH NAWAZ and 18 others---Petitioners

Versus

GOVERNMENT OF SINDH through Secretary Health, Karachi and 4 others---Respondents

C. P. No. D-3643 of 2019, decided on 3rd October, 2022.

Educational institution---

----Admission to medical college---Special quota---Change of status---Petitioners were given admission in medical college against self-finance and foreign quota seats---Petitioners sought change in mode of payment of college dues from US Dollars to Pak Rupees and also sought their adjustment on regular seats which were lying vacant---Validity---Petitioners applied on overseas sponsored category and their sponsors had expressed willingness to pay applicable fee in US Dollars at the time of admission---Grievance of petitioners had arisen due to continued decline of Pak Rupees in relation to US Dollars---Candidates who had applied and taken up foreign or self-finance seats could not see transfer of such further seats of either category as remained vacant to open merit quota and to be accommodated against those transfer seats---Petitioners could not be allowed to approbate and reprobate so as to accept a benefit and then seek to resign from their earlier position so as to avoid related burden---Petitioners were bound by their previous conduct---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Javed Anwar for Petitioners.

Sandeep Malani, Assistant Advocate General, Sindh for Respondent No. 1.

Muhammad Arif for Respondent No. 2.

Hassan Arif for Respondents Nos. 3 - 5.

2023 M L D 742

[Sindh]

Before Irshad Ali Shah, J

SANWAL alias CHARYA---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 97 of 2018, decided on 22nd August, 2022.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Scope---Accused was charged that he with co-accused in furtherance of their common intention committed murder of the deceased---Record showed that after the lapse of about two years of the occurrence, accused was arrested by police together with unlicensed pistol of 9 mm bore---Police Officer who allegedly had recovered the incriminating pistol from the accused had not been examined by the prosecution, for no obvious reason---Such omission apparently had defeated the alleged recovery---Prosecution had not been able to prove the involvement of the accused in present case beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Admission before the police---Scope---Accused was charged that he with co-accused in furtherance of their common intention committed murder of the deceased---Accused during course of interrogation of the case, admitted before Investigating Officer and witnesses that he along with co-accused persons had committed death of the deceased by causing him fire shot injuries at the instance of "A"---High Court observed that if for the sake of argument, it was believed that such statement was made by the accused before Police Officials, even then it could not be relied upon being inadmissible in evidence in terms of Art. 39 of the Qanun-e-Shahadat, 1984---Prosecution, in circumstances, had not been able to prove the involvement of the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Safe custody of crime empties---Scope---Accused was charged that he with co-accused in furtherance of their common intention committed murder of the deceased---Pistol allegedly recovered from the accused was found to be matched with the two empties after two years---None had been examined, on point of Safe Custody, by the prosecution---Prosecution had not been able to prove the involvement of the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, common intention---Appreciation of evidence---Examination of accused---Scope---Accused was charged that he with co-accused in furtherance of their common intention committed murder of the deceased---No question had been put to the accused during course of his examination under S. 342 Cr.P.C., to have his explanation on point of recovery of alleged crime weapon from him and report of Forensic Expert---Accused could hardly be connected with such recovery---Prosecution had not been able to prove the involvement of the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

Nadeem alias Kalia v. The State and others 2018 SCMR 153 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

Ms. Abida Parveen Channer for Appellant.

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

2023 M L D 749

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Rashida Asad, JJ

MASHOOQUE---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-149 and Confirmation Case No. 36 of 2019, decided on 25th August, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd and common intention---Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Scope---Accused was charged that he along with co-accused committed murder of the cousin of complainant---Allegedly, deceased had an evil eye upon the wife of accused and accused committed the murder of deceased due to such motive---Crucial evidence relied upon by prosecution was that of complainant which spoke about the incident specifically in a tune that what he had stated in FIR---Complainant deposed that he had witnessed the incident and accused had committed the murder of deceased because accused had declared that deceased had evil eye upon his wife---Other eye-witnesses had also witnessed the incident, as on the relevant night they were also sleeping with deceased in the premises of hotel on separate cots---Eye-witnesses were subjected to thorough and detailed cross-examination, the defence could not elicit any material to shake their credibility which was perfectly in tune with FIR---All the three eye-witnesses had given a graphic description of the incident occurred at the time of occurrence---As regard to the presence of eye-witnesses at the time of incident along with deceased, there was huge evidence and presence of all the eye-witnesses at place of incident at the relevant time had been established by prosecution---Evidence of eye-witnesses had been supported by medical evidence and corroborated by other pieces of evidence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, motive was not proved, thus death sentence was reduced to imprisonment for life.

Mst. Nazia Anwar v. The State and others 2018 SCMR 911 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd and common intention---Appreciation of evidence---Sentence, reduction in---Recovery of weapon of offence on the pointation of accused---Reliance---Scope---Accused was charged that he along with co-accused committed murder of the cousin of complainant---Record showed that accused was arrested during investigation---Accused led the police to pointed place and produced the blood stained hatchet which was sent to Chemical Examiner and it was found blood stained---Report of Chemical Examiner was positive and it had been produced in evidence---When taking into consideration the entire evidence of prosecution witnesses, it would clearly go along with prosecution as to manner in which the offence was committed by accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, motive was not proved, thus death sentence was reduced to imprisonment for life.

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

----Ss. 302(b) & 34---Qatl-i-amd and common intention---Appreciation of evidence---Sentence, reduction in---Related witnesses---Scope---Accused was charged that he along with co-accused committed murder of the cousin of complainant---Record showed that eye-witnesses were closely related to deceased---Merely because the witnesses were close relatives of deceased, the evidence of such witnesses could not be discarded---Treating as an interested version unless otherwise established, it could not be concluded that a person who was closely related to the deceased would make a statement for falsely implicating any person so as to permit the real person to escape from the clutches of law---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, motive was not proved, thus death sentence was reduced to imprisonment for life.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd and common intention---Appreciation of evidence---Sentence, reduction in---Withholding material evidence---Effect---Accused was charged that he along with co-accused committed murder of the cousin of complainant---In FIR, it was mentioned that accused committed the murder of deceased as according to accused deceased had evil eye upon his wife---Prosecution had failed to prove motive at trial for the reasons that wife of accused who was the material witness in the case as deceased had evil eye upon her, was neither examined by Investigation Officer nor produced at trial---Presumption under Art. 129(g) of Qanun-e-Shahadat, 1984 would fairly be drawn in case she would have been examined on the point, she might have not supported the case of prosecution---Maintaining the death sentence would be unwarranted in the peculiar circumstances of the case and life imprisonment would be an appropriate imprisonment---Appeal was dismissed, however, death sentence was reduced to imprisonment for life.

Riaz Ahmed v. The State 2010 SCMR 846 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd and common intention---Appreciation of evidence---Sentence, reduction in---Motive not proved---Mitigating circumstances---Scope---Accused was charged that he along with co-accused committed murder of the cousin of complainant---Investigating Officer in his evidence had stated nothing about the motive---Trial Court had also failed to put that incriminating piece of evidence to the accused for his explanation in his statement recorded under S. 342, Cr.P.C---Trial Court had also failed to record any finding on the piece of motive in impugned judgment---Prosecution had rightly conceded that motive had not been proved at trial---Such circumstances of the case had put to a caution in the matter of sentence of accused---Whole prosecution evidence was silent on that aspect of the case---Real cause of occurrence was shrouded in mystery and was completely suppressed by both the parties---If prosecution asserted a motive but failed to prove the same then failure on the part of prosecution might react against the sentence of death passed against accused on the charge of murder---Maintaining the death sentence would be unwarranted in the peculiar circumstances of the case and life imprisonment would be an appropriate imprisonment---Appeal was dismissed, however, death sentence was reduced to imprisonment for life.

Mst. Nazia Anwar v. The State and others 2018 SCMR 911 rel.

Wali Muhammad Khoso for Appellant.

Shahzado Saleem Nahiyoon, Additional Prosecutor General, Sindh for the State.

2023 M L D 772

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi and Omar Sial, JJ

CHATTO KHAN SUHANDRO---Applicant

Versus

GHULAM NABI SUHANDRO and 4 others---Respondents

Criminal Revision Application No. D-05 of 2019, decided on 22nd April, 2021.

Penal Code (XLV of 1860)---

----Ss. 302, 404 & 34---Qatl-i-amd, dishonest misappropriation of property possessed by deceased at the time of his death, common intention---Appreciation of evidence---Accused were charged for committing murder of the grand-daughter of the complainant by strangulation and fled away after removing the golden ear-rings of deceased---Complainant filed application for the enhancement of punishment---Scope---Record showed that the Trial Court gave reasons for awarding lesser sentence to the accused/respondents in its judgment---Not certain from the evidence on record as to who had specifically caused murder of the deceased---Apparently, the present and absconding accused persons in furtherance of their common intention strangulated the deceased and caused brick blows to the deceased---Such factor constituted a mitigating or extenuating circumstance justifying lesser punishment/sentence under S. 302(b), P.P.C., as Tazir---Plea of enhancement of the sentence of the accused in the case had no substance---While dismissing the revision application filed against the accused/respondents show-cause notice issued to them was vacated, in circumstances.

Muhammad Riaz and another v The State and another 2007 SCMR 1413 rel.

Abdul Rehman Bhutto for Applicant.

Rafique Ahmed K. Abro for Respondents.

Muhammad Noonari, Deputy Prosecutor General for the State.

2023 M L D 782

[Sindh]

Before Mohammed Karim Khan Agha and Irshad Ali Shah, JJ

UBAID alias K-2 and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No. 75 of 2018, decided on 11th October, 2021.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---No justification provided for the presence of eye-witness at the place of occurrence---Chance witness---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Ocular account of the incident had been furnished by sole eye-witness---Said witness was a scrap shop keeper who happened to be in the area pushing his scrap cart when the incident took place---Eye-witness, however could not name his shop and its location or even his residential addresses during the last 15 years with any precision---Furthermore, witness was not named in the FIR as an eye-witness---No genuine reason was on record to show that witness was present in the vicinity thus appeared to be a chance witness---Even if said witness was present at the scene at the time of the incident although it was a daylight incident there was no mention in his evidence as to how far away he was from the incident---Witness had not given any hulia in his statement under S. 161, Cr.P.C of either of the accused persons---Said witness did not know the accused persons prior to the incident and it appeared that he would have only got a fleeting glance of them during a chaotic and frightening incident whereby he would be looking to take cover from the indiscriminate firing---Record showed that the eye-witness identified the accused persons at an identification parade 15 years after the incident, however, he could not be safely relied upon as having correctly identified the accused persons who fired at the deceased who later died on account of the wounds---FIR although registered promptly based on hearsay evidence only contained a list of persons including the accused persons who had allegedly threatened the complainant's deceased brother against which no formal complaint was made which at best made the accused persons suspects---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.

Sajjan Solangi v. The State 2019 SCMR 872; Hayatullah v. The State 2018 SCMR 2092; Abdul Sattar v. The State PLD 1976 SC 404; Fazal Hussain alias Faqeera and others v. The State 2020 PCr.LJ 311; Taj Bahadur alias Taji and another v. The State 1997 MLD 1072; Kunwar Anwar Ali, Special Judicial Magistrate: In the matter of Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No. 259 of 2018; Toor Jan v. The State 2020 YLR 1099; Riaz Ahmed v. The State 2010 SCMR 846; Muhammad Umair alias Bhutto v. The State 2018 MLD 1196; Jalal Hassan v. Ameer Hamza Awan and 2 others 2019 MLD 1170; Muhammad Ali v. The State and 3 others 2015 PCr.LJ 1448; Ali Sher and others v. The State 2008 SCMR 707; Khurram Jalali v. The State 2017 PCr.LJ Note 19; Atta-ur-Rehman and another v. The State 2018 SCMR 372; Muhammad Zaman v. The State 2007 SCMR 813; Niaz-ud-Din v. The State 2001 SCMR 725; Muhammad Ehsan v. The State 2006 SCMR 1837 and Solat Ali Khan v. The State 2002 SCMR 820 ref.

Javed Khan v. State 2017 SCMR 524 and Mian Sohail Ahmed v. State 2019 SCMR 956 rel.

(b) Criminal trial---

----Medical evidence---Scope---With no eye-witness evidence to the murders the medical evidence would become inconsequential as it could only reveal how the deceased died, what kind of weapon was used and the seat of the injuries---Medical evidence could not identify the person who inflicted the injuries.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Confession of accused before police---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Accused persons confessed to the offence whilst in police custody---Confession before the police was inadmissible in evidence and thus no reliance on such confession could be placed---Even otherwise, it did not appeal to logic, reason or commonsense that a person behind bars against whom there was hardly any evidence would confess to an offence which carried the death penalty---Confessions of accused were also not recorded before a Judicial Magistrate despite the accused persons being taken before a Judicial Magistrate for an identification parade---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.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of crime empties---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Record showed that no weapon was recovered from either of the accused persons---Recovery of any empties at the crime scene and any Forensic Science Laboratory Report were irrelevant and did not connect the accused persons to the commission of the offence---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.

(e) Criminal trial---

----Benefit of doubt---Principle---Prosecution must prove its case against the accused beyond a reasonable doubt---Benefit of doubt must go to the accused by way of right as opposed to concession.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Raj Ali Wahid Kunwar and Nadeem Ahmed Azar for Appellants.

Mohammad Iqbal Awan, Additional Prosecutor General Sindh and Chaudhary Mehmood Anwar, Special Public Prosecutor, Pakistan Rangers for the State.

2023 M L D 801

[Sindh]

Before Mohammed Karim Khan Agha and Amjad Ali Sahito, JJ

MUHAMMAD HANIF---Appellant

Versus

Syed SAFDAR ABBAS ZAIDI and another---Respondents

Criminal Acquittal Appeal No. 26 of 2020, decided on 17th December, 2020.

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

----S. 302--- Qatl-i-amd--- Appreciation of evidence---Appeal against acquittal---Prosecution case was that the deceased/son of the complainant was shot by accused when the deceased attempted to rob the accused---Record showed that accused had admitted that after the deceased attempted to rob him at gun point he fired at and killed the deceased, however instead of fleeing from the scene accused called the police and an ambulance in order to save the life of the deceased which was not the action of a cold blooded murderer---First Information Report was filed with promptitude and therefore complainant had no time to cook up a false story---Even the police had recommended the case for closure in "C" class as the Investigating Officer believed it to be a case of self defence---Accused had no enmity with the deceased and had no motive to shoot and kill the deceased---Circumstances showed that it did not appeal to reason, logic or common sense that accused would commit the murder in cold blood whilst his young children were in the car and might have been endangered---Accused only fired one shot which was proportionate to the attack on him---If accused wanted to kill the deceased in cold blood then he would have most likely fired more than one time and certainly would not have called for an ambulance---Prosecution witness identified the deceased having robbed him earlier in the evening when he was shown his dead body in the morgue---Said witness had registered an FIR in respect of the incident---Stolen articles of the said witness were also recovered from the deceased---Said evidence to a large extent corroborated the evidence of accused that the deceased was a robber and when the deceased attempted to rob him at gun point and fired at him he had no option but to resort to a return of fire in self defence in order to save his life and protect the lives of his children---Contradictions in the evidence of the prosecution witnesses were of not such a materiality as to offset the acquittal and the failure of the prosecution to prove its case beyond a reasonable doubt---Circumstances established that there was no merit in the present appeal against acquittal---Appeal against acquittal was dismissed accordingly.

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

----S. 417---Appeal against acquittal---Interference---Scope---Judgment of acquittal should not be interjected unless findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous.

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

(c) Appeal against acquittal---

----Presumption of double innocence---Interference---Scope---In an acquittal the presumption of the innocence is significantly added to the cardinal rule of criminal jurisprudence that the accused would be presumed to be innocent until proved guilty.

Muhammad Hanif Qureshi for Appellant.

Ali Haider Saleem, D.P.G. for Respondents.

2023 M L D 813

[Sindh]

Before Khadim Hussain M. Shaikh, J

ZAHID SAEED KHAN---Appellant

Versus

ADNAN and 3 others---Respondents

Criminal Acquittal Appeal No. S-46 of 2020, decided on 22nd September, 2020.

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

----Ss. 457, 380 & 34---Theft in dwelling house, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, common intention---Appreciation of evidence---Appeal against acquittal---Delay of about twelve days in lodging the FIR---Accused were charged under Ss. 457, 380 & 34, P.P.C.---Record showed that FIR lodged after 12 days with no explanation---Said fact being significant could not be lost sight of, as the possibility of false implication of the accused persons after deliberations and consultations could not be ruled out---More particularly in view of the fact that the complainant and the alleged witnesses were admittedly, not eye-witnesses of the alleged occurrence and per prosecution nobody had seen the actual occurrence and the names of the accused were shown in the FIR on the basis of suspicion---Appeal against acquittal was dismissed, in circumstances.

(b) Criminal trial---

----Proof---Suspicion---Scope---Suspicion, howsoever strong, could not take place of the legal evidence and conviction could not be awarded on the basis of suspicion.

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

----Ss. 457, 380 & 34---Criminal Procedure Code (V of 1898), S. 249-A---Theft in dwelling house, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, common intention---Appreciation of evidence---Appeal against acquittal---Power of Magistrate to acquit accused at any stage of trial---Accused were charged under Ss. 457, 380 & 34, P.P.C.---Record showed that no incriminating article, whatsoever was recovered from the accused persons---Complainant in his cross-examination had made many admissions adverse to the prosecution case---No evidence worth consideration was available with the prosecution to establish accusation against the accused persons, thus, there was no probability of accused being convicted for any offence---Even the examination of the remaining witnesses would not improve the prosecution case, rather it would not only be an exercise of futility but the abuse of the process of the court to continue proceedings of the present case before the Trial Court---Circumstances established that the Trial Court by acquitting the accused by invoking the provisions of S. 249-A, Cr.P.C had not committed any illegality---Appeal against acquittal was dismissed accordingly.

Muhammad Sharif v. The State PLD 1999 SC 1063; The State through Secretary, Ministry of Interior v. Asfaque Ali Bhutto 1993 SCMR 523 and Ajmeer Khan v. Abdul Raheem and others PLD 2009 SC 102 rel.

Muhammad Shafiq Malik for Appellant.

Nemo for Respondents Nos. 1 to 3.

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

2023 M L D 823

[Sindh (Sukkur Bench)]

Before Amjad Ali Sahito, J

MUHAMMAD AZEEM and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-54 of 2016, decided on 8th October, 2021.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Criminal Procedure Code (V of 1898), S. 145---Illegal dispossession--- Appreciation of evidence---Civil litigation, pendency of---Accused persons were alleged to have illegally dispossessed complainant from property in question---Trial Court convicted accused persons and sentenced them to imprisonment for four years---Validity---To attract provisions of S. 3 Illegal Dispossession Act, 2005, Trial Court was required to examine as to whether property was immovable property; secondly that the person was owner of property or it was in his lawful possession; thirdly accused had entered into or upon the property unlawfully; and fourthly, that such entry was with the intention to dispossess i.e. ouster, evict or deriving out of possession against will of the person in actual possession, or to grab i.e. capture, seize suddenly, take greedily or unfairly, or to control i.e. to exercise power or influence over, regulate or govern or relates to authority over what was not in one's physical possession or to occupy i.e. holding possession, reside in or something---To examine question of title in respect of the property, Trial Court was to simply form an opinion as to whether prima facie any party was coming within the ambit of definition mentioned in section 3 of Illegal Dispossession Act, 2005---If Trial Court had formed such opinion from material placed before it, then the Court could proceed with the matter or otherwise, as the case could be---Similar procedure was adopted by Magistrate while exercising powers conferred upon him under S. 145, Cr.P.C., which was normally required to be adopted in such proceedings---Application was filed by the complainant party under S. 145, Cr.P.C., same was dismissed by Deputy District Officer (Revenue) and it was admitted by complainant in his cross-examination---Question of title of property was already pending before competent Court of Civil jurisdiction before filing of complaint---High Court set aside conviction and sentence awarded to accused persons by Trial Court and they were acquitted of the charge---Appeal was allowed, in circumstances.

2019 MLD 1622; 2013 MLD 1444; 2018 PCr.LJ 1522; 2018 PCr.LJ 1341; 2017 YLR Note 409; 2018 PCr.LJ Note 8; 2019 MLD 1163 and 2019 MLD 57 ref.

Aamir Ali Bhutto for Appellants.

Qurban Ali Malano for the Complainant.

Shafi Muhammad Mahar, Deputy Prosecutor General for the State.

2023 M L D 846

[Sindh]

Before Muhammad Faisal Kamal Alam, J

MUHAMMAD SALAHUDDIN---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary Production and Industries and 2 others---Defendants

Suit No. 1729 of 2010, decided on 31st October, 2022.

Limitation Act (IX of 1908)---

----Art. 64---Qanun-e-Shahadat (10 of 1984), Art. 133---Suit for recovery of money and damages---Limitation---Continuous cause of action---Extent of damages---Fact not cross-examined---Effect---Plaintiff served defendant organization and got release under Voluntary Separation Scheme---Plaintiff sought recovery of his outstanding service dues and damages accrued due to nonpayment of such dues---Plea raised by defendant organization was that the suit was barred by time---Validity---Amount earlier payable to plaintiff was withheld by defendant organization---Grievance of plaintiff was a continuous one, therefore suit was neither barred by law nor was time barred---Non-payment of service dues did not only cause monetary losses to plaintiff but was coupled with metal agony---Plaintiff in order to get his legitimate service dues, had to undergo a protracted litigation---Specific assertion of plaintiff about suffering mental agony was not challenged in cross-examination, meaning it was accepted---There could be no yardstick or definite principle for assessing damages in cases which were meant to compensate a party who had suffered an injury---Plaintiff was entitled for a money decree to the extent of amount proved on record and in addition also entitled to damages of Rupees 1,000,000--- Suit was decreed accordingly.

PIAC v. Tanvir-ur-Rehman and others PLD 2010 SC 676 ref.

Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore PLD 1996 SC 737 and Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6 rel.

Plaintiff in person.

Ghulam Mohiuddin, Assistant Attorney General for Defendant No. 1.

Nemo for Defendant No. 2.

Ikhtiar Ali Channa for Defendant No. 3.

2023 M L D 863

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

ALTAF and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-146 of 2016, decided on 21st March, 2022.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 353---Constitution of Pakistan, Art. 10A---Qatl-i-amd---Appreciation of evidence---Evidence to be taken in presence of accused---Right to fair trial and due process---Scope---Accused were charged for committing murder of the son of complainant by firing---Motive behind the occurrence was dispute over rotation of irrigating water---Record showed that the examination-in-chief of three prosecution witnesses were not recorded in presence of the two accused and the same were used against them for awarding conviction---Present case carried capital punishment and evidence (examination-in-chief, cross-examination and re-examination) of prosecution witnesses was to be recorded in their presence and in presence of their counsel---Even when the witnesses was examined in presence of accused but in absence of his counsel in cases of capital punishment the right of accused were being violated as most of accused were laymen who would have little, if any, knowledge of the law and in the absence of defence counsel would be unable to adequately defend themselves---During the examination-in-chief of a prosecution witness the accused would not know which questions he could object to and which documents he could oppose being exhibited---Such inability on the part of accused would lead to an unfair trial and the same was in violation of Art. 10-A of the Constitution---Circumstances established that a fair opportunity was not provided to the accused persons at the time of recording evidence of the witnesses and the trial court did not perform its functions diligently and had not recorded examination-in-chief of witnesses in presence of the accused persons by ignoring Art. 10-A of the Constitution---Accused were prejudiced in the trial and defence, therefore, a miscarriage of justice had been committed in the case---Procedure adopted by the trial court was illegal that was not curable under S. 357, Cr.P.C.---Appeal was partly allowed by setting aside convictions and sentences recorded by the Trial Court and the case was remanded back to the Trial Court for re-examination of said three prosecution witnesses whose examination-in-chief was not recorded in presence of two accused.

Muhammad Akram Jhamat for Appellants Nos. 1 to 3.

Nadeem Ahmed for Appellant No. 4.

Shafi Muhammad Mahar, Deputy Prosecutor General for the State.

2023 M L D 875

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui and Khadim Hussain Tunio, JJ

ABDUL SATTAR PATHAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-138 of 2018, decided on 8th September, 2020.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Sentence, reduction in---Prosecution case was that ten kilograms opium and ten kilograms charas were recovered from the truck driven by accused, which was to be delivered to the co-accused---Prosecution witnesses had constituted an uninterrupted chain of facts ranging from seizure to forensic analysis of the contraband---Witnesses were in comfortable unison on all the salient features regarding interception of the huge quantity of Chars and Opium as well as all the steps taken subsequently---Whole case property was sealed and sent to the Chemical Examiner, which was found being exercise more than sufficient to constitute forensic proof---At the time of arrest, accused was driving the truck from wherein he produced the two bags containing the contraband, therefore he was responsible for the said narcotics---Report of Chemical Examiner fully corroborated the evidence of both the witnesses, whose stand was in nexus with the Chemical Examiner's Report---Trial Court had already acquitted the co-accused while extending benefit of doubt on the basis of same set of evidence through impugned judgment---Record showed that the accused was a first offender and did not have previous criminal record---Accused was the sole bread earner of a huge family and was of old age and his conduct in jail had also been satisfactory as per jail authorities--- Lesser punishment would be sufficient for a first-offender---Moreover, the accused appeared to be remorseful of his past and had shown willingness for improvement---Court at its discretion could divert from the norms and standards prescribed in terms of sentencing after assigning cogent reasons; hence, the sentences of the accused were reduced from twelve years and six month to one already undergone by him---Appeal was dismissed with said modification.

2019 SCMR 1122 and 2019 SCMR 1095 ref.

Mushtaq Ahmed v. The State and another 2020 SCMR 474; Zahid and Riaz Ali v. The State 2020 SCMR 590; State through Deputy Director (Law), Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi PLD 2017 SC 671; Ghulam Murtaza and another v. The State PLD 2009 Lah. 362; Sherzada v. The State 1993 SCMR 149 and Gul Badshah v. The State 2011 SCMR 984 rel.

Rukhsar Ahmed Junejo for Appellant.

Mohsin Ali Khan, Special Prosecutor ANF for the State.

2023 M L D 888

[Sindh]

Before Zulfiqar Ali Sangi, J

CHIEF EXECUTIVE OFFICER THERMAL POWER STATION GENCO and 8 others---Applicants

Versus

ASSADULLAH and 2 others---Respondents

Civil Transfer Application No. S-07 of 2020, decided on 7th May, 2021.

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

----S. 24---Transfer of civil suit---Scope---Applicants assailed order passed by District Judge whereby the case before Trial Court was transferred from one district to another---District Judge, in the impugned order, had observed that the grounds taken by the respondent were neither plausible nor trustworthy and that no cogent reason was shown for transfer of the case, but since it came on surface that brother of respondent, an advocate, had previously moved an application against Presiding Officer of the Trial Court with regard to some other matter, therefore, in the interest of justice the case was transferred---Observations of the District Judge seemed to be reasonable and justified, but since Presiding Officer of the Trial Court had been transferred and the Court had original jurisdiction to try the case, therefore, it was appropriate that the case be assigned to the same Court---Impugned order was set aside---Transfer application was disposed of accordingly.

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

----S. 24---Transfer of civil suit---Scope---Applicants sought transfer of case from one district to another---Contention of applicants was that they had great apprehension that the brother of respondent, who was an advocate, might use the Bar platform and that none of the advocates in the district was ready to be counsel for the applicants---Validity---Ground agitated by the applicants was misconceived as they were represented through the Deputy District Attorney before the Trial Court and through a private lawyer before the High Court---Application in respect of the transfer of case to another district was dismissed.

Asif Hussain Muhammad Nawaz Chandio for Applicants.

Nasrullah Solangi for Respondent No. 1.

Munawar Ali Abbasi, Assistant A.G. for Respondent No. 2.

Abdul Rasheed Abro, Assistant Attorney General for Respondent No. 3.

2023 M L D 918

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar, J

ANWAR alias ANOO and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-163 and Criminal Appeal No.S-165 of 2017, decided on 21st March, 2022.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged that they with their common intention had killed the brother of complainant by firing---Record showed that during investigation two accused persons were arrested, their confessional statements were recorded with delay of four days---Incident was not seen by the eye-witnesses, however, there was last seen evidence of three prosecution witnesses---Admittedly, confessional statement was retracted statement as accused at the time of trial pleaded not guilty and therefore the confessional statement against him, being a witness, could not be considered as truthful statement because a person who recorded evidence against himself appeared before the Magistrate, subsequently resiled, could not be considered as a truthful witness---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

Muhammad Ismail and others v. The State 2017 SCMR 898 and Muhammad Mansha v. The State 2018 SCMR 772 ref.

Mst. Saira Bibi and others v. The State 2019 PCr.LJ 1363 rel.

(b) Criminal trial---

----Recovery of weapon of offence---Scope---Recovery of weapon only could not be considered as corroborative piece of evidence until it was supported by the positive report of Forensic Science Laboratory.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Benefit of doubt---Recovery of crime empties from the spot---Scope---Accused were charged that they with their common intention had killed the brother of complainant by firing---Empty shells were recovered, however, case of the prosecution was that the pistol was used in commission of the offence but such efforts with regard to get such offensive weapon examined in order to verify whether it was in running condition and also to match it with the recovered empty shells were not taken---Onus probandi was upon the prosecution to prove each aspect of the case---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

Sajjan Solangi v. The State 2019 SCMR 872 and Akhter Muhammad v. The State 2019 YLR 2603 rel.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence at the most was supporting piece of evidence and relevant only if primary evidence i.e. ocular account inspire confidence---Medical evidence neither pinpoint the accused nor established the identity of the accused and at the most could depict the locale as well as nature of injury, duration, weapon used etc; however, it could never be considered corroborative piece of evidence and at the most can be considered a supporting evidence only to the extent of specification of seat of injuries, the weapon used, duration, the cause of death etc.---Medical evidence could not determine the guilt of accused.

Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 and Zahoor Ahmad v. The State 2017 SCMR 1662 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there should be many circumstances creating doubt---If there was single circumstance which created reasonable doubt in a prudent mind about the guilt of an accused then the accused would be entitled to the benefit of such doubt not as a grace or concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

(f) Criminal trial---

----Last seen evidence---Scope---Last seen evidence is a weak piece of evidence and same can not be considered as sole ground while awarding conviction to the accused.

Omparkash H. Karmani and Imtiaz Ali Chanhio for Appellants.

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

2023 M L D 931

[Sindh (Sukkur Bench)]

Before Zafar Ahmed Rajput and Irshad Ali Shah, JJ

MASHOOQUE ALI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-152 of 2019, decided on 2nd February, 2023.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Police witnesses---Scope---Accused challenged his conviction under S. 9(c) of the Control of Narcotic Substances Act, 1997---Complainant stated that he and his staff were conducting a patrol when they received information from a spy that the accused was in his village with large quantity of narcotic substances and was waiting for a customer---Acting on this information, they went to the place of the incident and found the accused standing there with a shopper---Accused was apprehended on the indication of the spy and a shopper containing opium in the form of pieces, weighing 02 kilograms, was secured from him and sealed---On inquiry, the accused led the complainant and his party to nearby bushes, where he took out two bags, each containing 45 packets of charas, weighing 01 kilogram each, totalling 90 kilograms of charas---From each packet of charas, 20 grams were taken out for chemical examination and sealed---Memo was prepared at the spot and the accused was booked in the case---Complainant and his witnesses stood by their version on all material points with regard to the arrest of the appellant and the recovery of the narcotic substance from him, despite lengthy cross-examination; they could not be disbelieved only on the basis that they were police officials; they had no enmity or ill will towards the accused to have falsely implicated him in the case by foisting upon him a huge quantity of narcotic substance---Trial Court was right to conclude that the prosecution had proved its case against the appellant beyond a shadow of doubt---Appeal was dismissed, in circumstances.

Zafar v. The State 2008 SCMR 1254; Muhammad Noor and others v. The State 2010 SCMR 927; Kashif Amir v. The State PLD 2010 SC 1052 and Iftikhar Hussain v. State 2004 SCMR 1185 rel.

Manzoor Hussain Larik for Appellant.

Mohsin Ali Khan, Special Prosecutor ANF for the State.

2023 M L D 942

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui, J

ISMAIL---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-251 of 2021, decided on 17th May, 2021.

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---Contents of the FIR did not show that the samples were taken out of the recovered narcotic for chemical examination---Argument that accused was made a prey of animosity and he was involved in the crime by foisting charas upon him could not be overlooked---Plea of animosity was supported, during arguments, by bringing on record material against the police---Witnesses cited in the FIR were police officials working under subordination of complainant, hence, there was no apprehension of tampering the evidence---Trial would determine whether the accused had committed the alleged offence or he had been implicated due to previous animosity as brought by accused on record---Investigation was over and the accused was no more required for further investigation---Accused was admitted to bail.

Mehfooz Ahmed Awan for Applicant/accused.

Khalil Ahmed Maitlo, D.P.G. for the State.

2023 M L D 952

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

MEERAN SHAH and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. S-33, S-39 and S-71 of 2021, decided on 15th February, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 409 & 34---Prevention of Corruption Act (II of 1947), S. 5---Criminal breach of trust by public servant, or by banker, merchant or agent---Common intention---Criminal misconduct---Bail, refusal of---Scope---Accused persons were attributed specific role that they were involved in the illegal sale and purchase of the government stamped medicines by committing fraud and forgery---Huge quantity of government medicines had been recovered from their possession at the time of arrest, which prima facie connected them with the commission of alleged offence---Allegations against accused persons were of serious in nature, as they were involved in the illegal sale and purchase of government stamped medicine in huge quantity, thereby causing loss to the government exchequer, so also the poor and needy patients were deprived of the legitimate right of provision of government medicines at government hospitals---If such practice was not contained with iron hands, the same would be repeated again and again---Offence with which the accused persons were charged fell within the prohibitory clause of S. 497, Cr.P.C. disentitling them to the concession of bail---Accused persons had failed to make out a case of further inquiry---Applications were dismissed, in circumstances.

Muhammad Siddique and another v. Province of Punjab and others 2020 PCr.LJ 197; Gulshan Solangi and others v. The State through P.G Sindh 2020 SCMR 249; Nisar Ahmed v. The State and another 2014 SCMR 27; Wazir Muhammad v. The State 2015 YLR 2461; Haji Muhammad Yasin v. The State and another 2018 YLR 908; Muhammad Bux v. The State 2018 YLR Note 38 and Sameen Asghar v. The State 2018 YLR Note 70 distinguished.

Gulshan Ali Solangi and others v. The State through P. G Sindh and others 2020 SCMR 249 ref.

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

----S. 497--- Bail---Deeper appreciation of evidence---Scope---Deeper appreciation of evidence of material available on record cannot be undertaken while deciding bail application.

Rashid Khan Durrani for Applicant (in Criminal Bail Application No. S-33 of 2021).

Hamayoun Shaikh and Ashok Kumar K. Jambha for Applicant (in Criminal Bail Application No. S-39 of 2021).

Imtiaz Ali Abbasi for Applicant (in Criminal Bail Application No. S-71 of 2021).

Shafi Muhammad Mahar, D.P.G. for the State.

2023 M L D 966

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

MUHAMMAD SHAHBAZ---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 919 of 2019, decided on 14th January, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Prosecution case was that fifty eight kilograms gross heroin powder in ten wooden tables was recovered from the container of the accused---Record showed that the FIR was lodged with promptitude giving no time for concoction and 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---Accused was arrested on the spot when the container was opened in his presence and the heroin was found concealed in 10 wooden tables---Accused had no reason to be in the secured examination area unless he was involved in the shipment---Clearing Agent/witness gave evidence that he had once already arranged such a shipment to Malaysia in 2012 with the accused and absconder whereby E-Form, invoice and undertaking had been provided to him and that he had once again arranged such a shipment for the accused which was the shipment in question which had been blocked by the Anti Narcotic Force---According to evidence of said witness, he was present when the container was opened by the Anti-Narcotic Force and the accused pointed out that the narcotics were hidden in ten wooden tables at the back of the container which only the accused would have known about---Evidence of said witness on the recovery of the narcotics on the pointation of the accused in a hidden place was also corroborated by the Anti Narcotic Force witness---Said witness was an independent witness and no enmity was suggested between him and the accused and thus had no reason to falsely implicate the accused in the case---Said witness was not dented during cross examination and he gave his evidence in a straightforward manner and as such his evidence was believable---Accused had given a signed undertaking on stamp paper in respect of the consignment in the container from which the narcotics were recovered which directly connected him with the container and its consignment---Amount of 58 Kilograms of heroin was too large an amount to be foisted especially as it was hidden in wooden tables at the back of the container and that there appeared to be no dispute that the narcotic was recovered from the container and that the accused was present at the time of its recovery---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody of the recovered substance---Scope---Prosecution case was that fifty eight kilograms heroin powder in ten wooden tables was recovered from the container of the accused---Container was initially de-sealed by the customs authorities, however, when it was noted that the container had been blocked by the Anti-Narcotic Force it was locked and guarded by the Anti-Narcotic Force until the Anti-Narcotics Force raiding party arrived---Narcotics were recovered on the pointation of the accused hidden in the back of the container in ten wooden tables---Narcotics were weighed and sealed on the spot and then deposited in the Malkhana before being taken in a sealed condition for chemical examination as confirmed by the chemical report---No allegation of tampering was made in respect of the narcotics during cross examination and thus it was found that the prosecution had proven safe custody of the recovered narcotic---Chemical report was positive and the relevant protocols for testing were followed---Arrest and recovery was made on the spot on the pointation of the accused by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----S. 9---Possession of narcotics---Testimony of Police Officials---Evidence of a police witness is as reliable as any other witness provided that no enmity exists between them and the accused.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

(d) Criminal trial---

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

Zakir Khan v. State 1993 SCMR 1793 rel.

(e) 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 at the time of arrest of accused and recovery of narcotics---Scope--- Prosecution case was that fifty eight kilograms gross heroin powder in ten wooden tables was recovered from the container of the accused---No independent mashir was associated with the arrest and recovery of the accused and narcotic---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 that Act---Appeal against conviction was dismissed accordingly.

Muhammad Hanif v. The State 2003 SCMR 1238 rel.

Muhammad Farooq for Appellant.

Habib Ahmed, Special Prosecutor ANF for the State.

2023 M L D 989

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto, J

WASEEM AKRAM---Applicant

Versus

Mst. ASMA---Respondent

Civil Transfer Application No. S-17 of 2021, decided on 6th September, 2021.

Family Courts Act (XXXV of 1964)---

----S. 25A---Transfer of cases---Scope---Applicant/defendant (husband) sought transfer of suit for maintenance from one district to another---Validity---Convenience of lady/wife had to be preferred in the matter---Suit for maintenance could not be transferred at the choice of defendant--- Transfer application being without merit was dismissed.

Akhtar Ali v. The State 2020 SCMR 1243 ref.

Akhtar Ali Abro for Applicant.

Shabeer Hussain Memon for Respondent.

2023 M L D 994

[Sindh]

Before Nazar Akbar, J

Dr. JAVED AKHTAR---Plaintiff

Versus

Messrs RUFI BUILDERS AND DEVELOPERS through Director/Partner and 2 others---Defendants

Suit No. 1563 of 2006, decided on 5th July, 2021.

Specific Relief Act (I of 1877)---

----Ss. 42, 39, 12, 8 & 54---Contract Act (IX of 1872), S. 73---Qanun-e-Shahadat (10 of 1984), Art. 132---Suit for declaration, cancellation, specific performance of contract, possession, injunction and damages---Witness not cross-examined---Scope---Plaintiff filed a suit for declaration, cancellation, specific performance of contract, possession, injunction and damages---Contention of plaintiff was that he purchased suit property from the defendant; that he paid certain charges for lease and connection; that the defendant was bound to deliver possession within three years; that the defendant demanded more than the settled amount and that the defendant sent cancellation letter to the plaintiff---Defendant admitted that the plaintiff had booked the suit property and the total sale consideration was also agreed as stated by the plaintiff in the plaint, however, stated that since the plaintiff had failed to pay additional charges, therefore, the allotment was cancelled---Validity---Defendant never appeared before the commissioner appointed to record the evidence---Defendant had admitted most of the averments of the plaintiff in his written statement---Entire evidence of the plaintiff had gone un-rebutted---Mere written statement had no meanings since it could not be treated as evidence at all---Evidence of the plaintiff would be deemed to have been admitted by the defendant---Suit was decreed as prayed.

Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 and Hafiz Tassaduq Hussain v. Lal Khatoon and others PLD 2011 SC 296 rel.

Nadeem Farooqi for Plaintiff.

Nemo for Defendants.

2023 M L D 1040

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

NISAR and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-97 of 2021, decided on 18th March, 2022.

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

----Ss. 302(b), 324, 148, 149 & 337-H(2)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, rash or negligent act to endanger human life or personal safety of others---Appreciation of evidence---Accused were charged for committing murder of two persons of the complainant party by firing including son of complainant---Three eye-witnesses of the incident deposed against the accused persons, one of them received firearm injury at the time of incident---All the said witnesses were consistent with each other that the accused persons made direct fire from their respective weapons upon the injured and the deceased---Occurrence was a day time incident and the parties were known to each other, therefore there was no chance of mistaken identification---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal was dismissed accordingly.

Muhammad Mansha v. The State 2018 SCMR 772; Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Javaid v. The State 2016 PCr.LJ 18; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Sadiq v. The State 2017 SCMR 144; Amin Ali v. The State 2011 SCMR 323 and Muhammad Noor v. Riaz Shah and another 2016 MLD 757 ref.

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

----Ss. 302(b), 324, 148, 149 & 337-H(2)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, rash or negligent act to endanger human life or personal safety of others---Appreciation of evidence---First Information Report lodged with promptitude--- Scope--- Accused were charged for committing murder of two persons of the complainant party by firing including son of complainant---First Information Report of the present case was registered promptly---First Information Report was registered on the same day similarly the injured were examined by the doctor same day, which excluded the possibility of consultation or deliberation on the part of the prosecution---Evidence of the witnesses had established that after the incident complainant immediately went to the hospital to save the life of injured persons and thereafter leaving them at hospital immediately reached at police station and after the FIR police along with the complainant came at the hospital---Complainant and the injured witness gave full particulars of the incident to the police---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal was dismissed accordingly.

Farman Ali and another v. The State and another 2020 SCMR 597 rel.

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

----Ss. 302(b), 324, 148, 149 & 337-H(2)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, rash or negligent act to endanger human life or personal safety of others---Appreciation of evidence---Related and interested witnesses---Scope---Accused were charged for committing murder of two persons of the complainant party by firing including son of complainant---Allegedly, the witnesses were related to each other and were interested, therefore, their evidence could not be relied upon---Validity---Although, the witnesses were related to each other but they specifically deposed against the accused persons---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal was dismissed accordingly.

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

----Ss. 302(b), 324, 148, 149 & 337-H(2)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, rash or negligent act to endanger human life or personal safety of others---Appreciation of evidence---Presence of the complainant and eye-witnesses was justified---Scope---Accused were charged for committing murder of two persons of the complainant party by firing including son of complainant---Record showed that complainant immediately approached the police station where FIR was registered---Complainant had given full particulars of the FIR and incident, thereafter, police proceeded towards the hospital---Two persons received injuries from which one died and one was alive who also fully supported the version of complainant mentioned in the FIR---Presence of complainant and the eye-witnesses at the place of incident was fully established---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal was dismissed accordingly.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 rel.

(e) Criminal trial---

----Witness---Related and interested witnesses---Scope---To believe or disbelieve a witness all depending upon intrinsic value of the statement made by him---Even otherwise, there could not be a universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed---Said fact depended upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and that he was making true statement---Person who was reported otherwise to be very honest, above board and very respectable in society if given a statement which was illogical and unbelievable, no prudent man despite his nobility would accept such statement.

Abid Ali and 2 others v. The State 2011 SCMR 208 rel.

(f) Criminal trial---

----Witness---Related and interested witness---Scope---Mere fact that a witness was closely related to the accused or deceased or he was not related to either party, was not a sole criteria to judge his independence or to accept or reject his testimony rather the true test was whether the evidence of a witness was probable and consistent with the circumstances of the case or not.

Lal Khan v. State 2006 SCMR 1846 rel.

(g) Criminal trial---

----Witness---Related and interested witness---Scope---Merely on the ground of inter se relationship the statement of a witness could not be brushed aside---Even the friendship or relationship with the deceased would not be sufficient to discredit a witness particularly when there was no motive to falsely involve the accused.

Zulfiqar Ahmed and another v. The State 2011 SCMR 492 and Iqbal alias Bala v. The State 1994 SCMR 01 rel.

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

----Ss. 302(b), 324, 148, 149 & 337-H(2)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, rash or negligent act to endanger human life or personal safety of others---Appreciation of evidence---Non-recovery of crime weapon---Scope---Accused were charged for committing murder of two persons of the complainant party by firing including son of complainant---Contention was that crime weapon used by the accused persons at the time of offence was not recovered from the accused persons, therefore, the accused persons could not be connected with the offence had no force in view of that, all the prosecution witnesses supported the case of prosecution by deposing that the accused persons directly fired from their respective weapons which hit the injured and the deceased---Direct evidence of the witnesses was further corroborated by medical evidence as the doctor who examined the injured and the deceased had found firearm injuries on their person---If charge was proved by other direct, natural and confidence inspiring evidence, then non-recovery of crime weapon was not fatal to the prosecution case---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal was dismissed accordingly.

Sikander Teghani alias Muhammad Bux Teghani v. The State 2016 YLR 1098 rel.

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

----Ss. 302(b), 324, 148, 149 & 337-H(2)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, rash or negligent act to endanger human life or personal safety of others---Appreciation of evidence---Minor contradictions---Scope---Accused were charged for committing murder of two persons of the complainant party by firing including son of complainant---Defence pointed out some minor contradictions and discrepancies in the evidence which were not sufficient to hold that the case of prosecution was doubtful---Where in the evidence, prosecution established its case beyond a reasonable doubt then if there were some minor contradictions which always were available in each and every case the same might be ignored---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal was dismissed accordingly.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Sarfraz Khan Jatoi and Muhammad Afzal Jageerani for Appellants.

Nemo for the Complainant.

Syed Sardar Ali Shah for the State.

2023 M L D 1072

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar, J

NASEEM MANGNEJO and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. S-27 of 2023 and S-664 of 2022, decided on 10th April, 2023.

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

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 365-B, 376, 344, 148 & 149---Kidnapping, abducting or inducing woman to compel for marriage etc., rape, wrongful confinement, rioting armed with deadly weapons, unlawful assembly---Bail, grant/confirmation of---First Information Report (FIR) was lodged with delay of about 33 days though distance between police station and place of incident was about 4/5 kilometers and no plausible explanation had been furnished by the prosecution for such an inordinate delay---As far as allegation of zina-bil-jabr is concerned, the medical evidence did not support the prosecution version, hence mere word against word was no ground to withhold the concession of bail to an accused when the ocular version did not get support from the medical evidence---Parties seems to be close relatives of each other, therefore question of commission of such an offence within the family raised many questions---Alleged abductee though had alleged that she was abducted away by the accused and co-accused; however she was not recovered from their possession or from their house, but allegedly succeeded to get herself free from their clutches according to her own, which was also a mystery---Even after her abduction, neither the accused nor the co-accused had enticed her for entering into Nikah and mere allegation of zina, which had not been corroborated by the medical evidence, one could not be deprived of concession of bail---Case had been challaned and further detention of the accused and co-accused would not serve any legal or technical purpose---Accused and co-accused had made out a good prima facie case for their release on bail---Consequently both their bail applications were allowed; and the accused was released on bail, whereas interim bail already granted to co-accused was confirmed.

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

----S. 497 & 498---Bail---Delay in lodging FIR---Such delay in criminal cases has always been held by the Superior Court(s) to be fatal for the prosecution.

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

----S. 497 & 498---Bail---Principles---Every accused would be presumed to be blue eyed boy of the law until and unless he may be found guilty of the charge.

Allah Dino Phulpoto and Ghulam Murtaza Chanaa for Applicants.

Manzoor Hussain Larik and Waqar Ali Phulpoto for the Complainant.

2023 M L D 1084

[Sindh]

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

Mst. AMMARA KHALID---Petitioner

Versus

MINISTRY OF INTERIOR through Interior Secretary of Pakistan, Islamabad and 2 others---Respondents

C.P. No. D-6233 of 2021, decided on 16th September, 2022.

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

----S. 7---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Guardianship certificate, allowing the minor to travel abroad---Scope---Petitioner requested directions to the authorities to arrest the respondent as he had left the country with their minor child---Validity---Record revealed that the respondent had obtained a custody order from the Court of Family Judge, which had granted permission for the travel---Petitioner had not filed any appeal or made any application before the Guardian Judge to reconsider the matter on its merits---Therefore, the constitutional petition was found to be misconceived as the relief sought could not be granted while the guardianship order was still in favour of the respondent---Petition was dismissed.

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

2023 M L D 1095

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

KALEEM BAIG and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 258 and 439 of 2021, decided on 3rd June, 2022.

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

----Ss. 6 & 9(c)---Possession of 127 kilograms charas---Appreciation of evidence---Benefit of doubt---Prosecution case was that 107 packets containing 127 kilogram charas were recovered from a vehicle wherein the accused was a passenger---Case of the accused being the passenger and other accused being the driver of the pickup truck was distinguishable---As far as the case of accused being the passenger of the truck was concerned, prosecution had failed to bring forth any iota of evidence against him---None of the prosecution witness deposing against him stated anything besides his mere presence in the truck---From his personal possession, only a Nokia mobile phone and Rs.2,000/- were recovered which in no way connected him to the four bags in the back of the truck nor did any of the prosecution witnesses suggest that the accused was conscious of the presence of narcotic in the back of the truck---Circumstances established that prosecution had failed to prove its case against the said accused/passenger beyond any shadow of doubt---Appeal against conviction to the extent of accused in question was allowed, in circumstances.

Hussain Shah v. The State PLD 2020 SC 132 rel.

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

----Ss. 6 & 9(c)---Possession of 127 kilograms charas---Appreciation of evidence---Sentence, reduction in---Prosecution case was that 107 packets containing 127 kilograms charas were recovered from the vehicle of the accused---Accused was allegedly driving the pickup truck at the time of his arrest---With regard to his role, the prosecution witnesses had provided an uninterrupted chain of facts ranging from the arrest of the accused and the seizure of narcotic to forensic analysis of the contraband---Witnesses were in comfortable unison on all the salient features regarding interception of the narcotic as well as all the steps taken thereafter---As far as the question of conscious possession was concerned, the accused was in fact the driver of the truck as had been deposed by the two mashirs of arrest and recovery---In the memo of arrest and recovery prepared by the complainant who's signature on the same, too, was ascertained through Police Constable/witness---Admittedly, the person driving the vehicle was in charge of the same and was presumed to know of the contents of the same---Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt, however his sentence was altered from imprisonment for life to imprisonment for one year and nine months---Appeal stand disposed of in the said terms.

Muhammad Hashim v. The State PLD 2004 SC 856; Amanat Ali and 2 others v. The State 2008 SCMR 991; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Qaisarullah and others v. The State 2009 SCMR 579; Ghulam Ara v. The State 2010 SCMR 1162; Ameer Zeb v. The State PLD 2012 SC 380; Abdul Ghani and others v. The State and others 2019 SCMR 608; Mst. Razia Sultana v. The State and another 2019 SCMR 1300; Faizan Ali v. The State 2019 SCMR 1649; Hussain Shah and others v. The State PLD 2020 SC 132; Haji Nawaz v. The State 2020 SCMR 687; Zeeshan Kazmi v. The State PLD 1997 SC 406; Gul Rehman v. The State 2002 PCr.LJ 1810; Ali Muhammad v. The State 2003 SCMR 54; Muhammad Hashim v. The State PLD 2004 SC 856; Jahangir Khan v. The State 2005 PCr.LJ 1506; Zulfiqar Ali alias Bila v. The State 2006 YLR 1056 and Mohammad Riaz and 2 others v. The State 2006 SCMR 1378 ref.

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

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

----Ss. 6, 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of 127 kilograms of charas---Appreciation of evidence---Sentence, reduction in---Non-association of independent witnesses in recovery proceedings---Inconsequential---Prosecution case was that 107 packets containing 127 kilograms charas were recovered from the vehicle of the accused---There is no universal rule that evidence of an interested witness, per se, must be invariably corroborated by some other evidence---Police Officials, being the state's peacekeepers and law enforcers are as good witnesses as any other and their evidence is subject to same standard of proof and principles of scrutiny as the standard applicable to any other category of witnesses---Despite the undeniable independent corroboration, in absence of any animus, infirmity or flaw in their evidence, the testimony of Police Officials can be relied upon without demur---Defence contended that the complainant failed to get any witnesses prior to receiving the spy information, however S. 103, Cr.P.C., in clear terms, was excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S. 25 of the Act---Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt, however his sentence was altered from imprisonment for life to imprisonment for one year and nine months---Appeal was disposed of in the said terms.

Muhammad Hanif v. The State 2003 SCMR 1237 rel.

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

----Ss. 6 & 9(c)---Possession of 127 kilograms of charas---Appreciation of evidence---Sentence, reduction in---Safe custody and transmission of narcotic to Forensic Laboratory established---Prosecution case was that 107 packets containing 127 kilograms charas were recovered from the vehicle of the accused---Record showed that the complainant deposited the recovered sample in the malkhana on the same day and said entry was made within Register No.19 per the contents of the memo of arrest and recovery---Again, the Investigating Officer deposed that he had received the case property in sealed condition and then delivered the same himself on the 22nd of June, i.e. 2 days after the arrest and recovery which was effected on 20.06.2020---Said exercise was done within the 72 hours prescribed time---Chemical Examiner, in his report under general remarks, also noted that the condition of the seals on the parcels was satisfactory, which too would negate any presumption of tampering---Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt, however his sentence was altered from imprisonment for life to imprisonment for one year and nine months---Appeal was disposed of in the said terms.

Zahid and another v. The State 2020 SCMR 590 rel.

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

----Ss. 6, 9(b) & 9(c)--- Possession of 127 kilograms charas---Appreciation of evidence---Sentence, reduction in---samples from each recovered packet not sent for analysis---Effect---Prosecution case was that 107 packets containing 127 kilograms charas were recovered from the vehicle of the accused---Only issue, however, was the fact that the complainant had only sent a single packet out of a total of 107 packets recovered---Said one single packet had two slabs within it, each weighing 500 grams; totalling 1000 grams (1 kg)---While the recovery of the bags and packets was not doubtful, the nature of the contents of the same was as the complainant failed to gather representative sample from every single packet---Prosecution failed to disclose which bag that slab was taken from---As such, safe criminal administration of justice called for only one kilogram of chars to be considered against the accused---Possession of 1000 grams, having been proven against the accused, would bring his case from one under S. 9(c) to one under S. 9(b) of the Control of Narcotic Substances Act, 1997---Thus, the sentence of accused was altered from life imprisonment to one year and nine months---Appeal was disposed of in said terms.

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

Muhammad Jamil for Appellants.

Siraj Ali K. Chandio, Additional Prosecutor-General Sindh for the State.

2023 M L D 1114

[Sindh]

Before Aftab Ahmed Gorar, J

Syed NASEEM AHMED---Appellant

Versus

SHUJA-UR-REHMAN and another---Respondents

Criminal Acquittal Appeal No. 504 of 2022, decided on 19th September, 2022.

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

----S. 489-F--- Dishonestly issuing a cheque---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Allegation against the accused was that he issued cheque to the complainant which was dishonoured due to insufficient funds---Admittedly, the date mentioned on the cheque was 20.11.2019, which was dishonoured in the early bank hours whereas at the end of bank hours on the same date i.e. 20.11.2019 the funds were available in the account of payee hence no question of dishonesty arose---Had there been any dishonesty, the respondent would not have arranged the amount in his account on the same date---Furthermore, when it had come to the knowledge of the complainant that the amount was made available on the evening of 20.11.2019, he instead of dragging accused/respondent in litigation should have presented the cheque for clearance which he avoided and chose to lodge the FIR and dragged the respondent in litigation---Respondent/accused made available the funds on the very date for which cheque was issued and dishonoured, hence bona fide of the accused/respondent could not be questioned in the circumstances---Prosecution had failed to establish a case to interfere with the impugned judgment---Appeal against acquittal was dismissed accordingly.

(b) Appeal against acquittal---

----Double presumption of innocence---Scope---Appeal against conviction is distinguishable from the appeal against the acquittal because presumption of double innocence is attached in the latter case---Order of acquittal could only be interfered with, if it is found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and leads to gross miscarriage of justice.

Muhammad Ijaz Ahmad v. Fahim Afzal 1998 SCMR 1281; Jehangir v. Aminullah and others 2010 SCMR 491 and Khuyrram v. The State and others 2019 SCMR 1317 rel.

Rizwan Rasheed for Appellant.

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

2023 M L D 1131

[Sindh]

Before Muhammad Shafi Siddiqui, J

Messrs KARACHI CABLE SERVICES (PVT.) LTD. through Chief Executive Officer and 2 others---Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Information and 2 others---Defendants

Suit No. 1294 of 2022, decided on 9th September, 2022.

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

----S. 30--- Cable operators---Show cause notice---Plaintiff was aggrieved of show cause notices issued by authorities alleging violation of certain Court orders---Validity---Pakistan Electronic Media Regulatory Authority had jurisdiction in the matter and there were parallel proceedings initiated as contempt proceedings before Judge in Chambers of High Court---High Court declined to interfere in Show cause notices in question as the same were issued within the frame work of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and rules and regulations---Suit was dismissed, in circumstances.

Commissioner Inland Revenue and others v. Jahangir Khan Tareen and others in Civil Petition No.349-L of 2017 rel.

Umair Bachani for Plaintiffs.

Qazi Ayazuddin, Assistant Attorney General.

Sarmad Ali files Vakalatnama of Kashif Hanif on behalf of Defendants Nos. 2 and 3.

2023 M L D 1142

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Mst. SHAHNAZ ABID through Duly Constituted Attorney---Plaintiff

Versus

Messrs VISIONARY BALUCHISTAN MEDIA CORPORATION (PVT.) LTD.

through Chief Executive Officer---Defendant

Civil Suit No. 1228 of 2017 and Suit No. 852 of 2021, decided on 6th September, 2022.

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

----S. 55---Limitation Act (IX of 1908), Art. 113---Specific Relief Act (I of 1877), S. 12---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for specific performance---Effect of failure to perform at fixed time, in contract in which time is essential---Scope---Plaintiff sought the enforcement of a sale agreement, while the defendant sought the rejection of the plaintiff's claim---Validity---Total sale consideration was nineteen million rupees and the defendant had received only fourteen hundred thousand rupees so far---In an earlier suit, the parties had entered into a compromise and an order was passed for the payment of the balance sale consideration within eight months---However, the order was not complied with, even partially---Said order had made the sale agreement a contract in which time was of the essence, as envisaged under S. 55 of the Contract Act, 1872---Plaintiff had failed to demonstrate a bona fide intention to complete the sale consideration and, therefore, lacked readiness and willingness---Furthermore plaintiff had presented the instant plaint seven years after the agreement to enforce the contract, and under Art. 113 of the Limitation Act, 1908, three years' time was mentioned for seeking enforcement of the contract from the date of refusal---Consequently, the plaint was rejected.

Muhammad Sharif and others v. Nabi Bakhsh and others 2012 SCMR 900 rel.

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

----S. 55---Specific Relief Act (I of 1877), S. 12--- Suit for specific performance of agreement to sell immovable property---Effect of failure to perform at fixed time, in contract in which time is essential---Scope---Agreements related to immovable properties are time-sensitive, and any violation of the agreed timeline is fatal---Said rule is established, among other reasons, considering the prevailing inflationary trend and the volatile nature of the property market.

Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696 rel.

Khalil Ahmed for Plaintiff (in Suit No.1228 of 2017) and for Defendant No.1 (in Suit No.852 of 2021).

2023 M L D 1149

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

AIJAZ alias VICKY---Appellant

Versus

The STATE---Respondent

Special Anti-Terrorism Appeals Nos. 215 and 216 of 2019, decided on 15th February, 2022.

Penal Code (XLV of 1860)---

----Ss. 365-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S. 13-D---Kidnapping or abduction for extorting property, valuable security, etc., abetment, common intention, possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Accused were charged for kidnapping the abductee for ransom and releasing the abductee after receiving the ransom---Evidence showed that prosecution had proved its case against the accused beyond a reasonable doubt based on reliable, trustworthy and confidence inspiring witness evidence including that of the abudctee who identified the accused as one of the persons involved in his kidnapping for ransom---Part of the ransom was paid and the SIM recovered from the accused linked him to the ransom calls---Accused was arrested red handed by the police with an unlicensed weapon who had no enmity with the accused and no reason to falsely implicate him in a false case and that even the co-accused who had the same role as the accused had his conviction maintained up to the Supreme Court level and as such the convictions of the accused were maintained---Anti-Terrorism Act was not attracted to the case, in the facts and circumstances---Nothing was on record to prove that the occurrence had any nexus with terrorism nor any witness said so---Conviction under S. 7(e) of the Anti-Terrorism Act, 1997 was not sustainable, thus the same was set-aside---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---Appeal was dismissed with the modification in sentence.

Ghulam Hussain v. The State PLD 2020 SC 61 ref.

Ghulam Hussain v. The State PLD 2020 SC 61 rel.

Syed Kashif Ali for Appellant.

Muhammad Iqbal Awan, Additional Prosecutor General for the State.

2023 M L D 1159

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

MUHAMMAD MUQEEM---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 2 others---Respondents

C.P. No. D-8680 of 2017, decided on 31st August, 2021.

Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 11 & 12---Constitution of Pakistan, Art. 199--Complaints---Appeal, non-filing of---Effect---Petitioner, a retail consumer of natural gas, sought a direction to the licensee company to implement an order issued by the Oil and Gas Regulatory Authority (OGRA) under S. 11 of the Oil and Gas Regulatory Authority Ordinance, 2002---Licensee contended that it was not obligated to comply with the OGRA order as it was passed in violation of the licensee's regulations and, therefore, coram non judice---Validity---Licensee had not filed an appeal against the OGRA order, if it was aggrieved with it---Additionally, if the licensee was not satisfied with the OGRA's assumption of jurisdiction, it should have taken such a stance before the OGRA, which it had not done---Consequently, the petition was disposed of with a direction to both parties to comply with the OGRA's order.

Nadir Khan Burdi along with Shoukat Ali for Petitioner.

Khursheed Javed, D.A.G for Respondent No.1.

Muhammad Ather holding brief for Muhammad Shahzad Anjum for Respondent No.2.

Kashif Hanif for Respondent No. 3.

2023 M L D 1172

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

SAEED AHMED GHANGRO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-58 of 2010, decided on 4th March, 2022.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Accused were charged for committing murder of the son of the complainant by firing---Record showed that the accused actively participated in the incident, he along with other co-accused took the complainant party with the pretext that they were selling the buffalo and when they brought the complainant party at the place where they could easily commit the murder, they committed the same---During the cross-examination, not a single suggestion was made to the prosecution witnesses that he was not accompanied with the co-accused nor it was suggested that he was falsely involved due to some grudge with complainant party---Accused had directly participated in the occurrence as evident from the depositions of the witnesses, even otherwise his case also fell within the ambit of S. 34, P.P.C., which provided that when a criminal act was done by several persons, in furtherance of the common intention of all, each of such persons was liable for that act in the same manner as if it was done by him alone---During cross-examination it was also brought on record that the accused was also residing near the house of complainant party and the same had not been denied by the accused---Presence of complainant and the eye-witness at the place of wardat was also established from their evidence---No dent in the prosecution evidence was available which suggested that the accused was falsely involved in the commission of offence---In the present case, the occurrence had taken place in the broad daylight and there was no chance of any misidentification---All the said factors when evaluated conjointly it was abundantly clear that the prosecution had succeeded to establish the case without any reasonable doubt---Appeal was dismissed accordingly.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152; Zulfiqar Ahmed and another v. State 2011 SCMR 492 and Muhammad Afzal v. The State 2020 SCMR 597 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 were charged for committing murder of the son of the complainant by firing---Although the witnesses were relatives of the deceased but they specifically deposed against the accused---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal was dismissed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Non recovery of weapon of offence and crime empties---Scope---Accused were charged for committing murder of the son of the complainant by firing---Empties were not recovered from the place of wardat to connect the accused with the commission of the offence---Such fact had no force as no weapon was recovered from the accused because accused remained absconder therefore there was no chance that said empties ought to be sent for Forensic Science Laboratory for matching with the weapon---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal was dismissed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Minor contradictions in the statements of witnesses---Scope---Accused were charged for committing murder of the son of the complainant by firing---Some minor contradictions and discrepancies in the evidence were pointed out by the defence, however, same were not sufficient to hold the case of prosecution doubtful---Prosecution had established its case against the accused beyond a reasonable doubt then if there were some minor contradictions which always were found in each and every case, same might be ignored---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal was dismissed accordingly.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Bakhshan Khan Mahar for Appellant.

Complainant in person.

Shafi Muhammad Mahar, Deputy Prosecutor General for the State.

2023 M L D 1189

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

NISAR KHAN and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 44, 45, 46, 47,48 and 49 of 2021, decided on 4th February, 2022.

(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), Ss. 6(2)(ee) & 7---Act of terrorism, possession of hand grenade, pistol, revolver and bullets---Appreciation of evidence---Sentence, reduction in---Prosecution case was that hand grenade, pistol, revolver and bullets were recovered from the possession of the accused---Prosecution's case relied on complainant and mashir of arrest and recovery---Said witnesses deposed that on 23.11.2020, while they were patrolling, complainant received spy information regarding the presence of a few culprits at the place of incident who were present with the intent to commit some crime---As such, they proceeded to the pointed out place and found the accused persons at the place of incident---Accused were duly apprehended and from their possessions one pistol and a grenade each were recovered---Pistols and ammunition were sealed on the spot, whereas the grenades were left unsealed till the arrival of the bomb disposal unit (BDU) which defused the hand grenades and S.I. issued such clearance certificates whereafter three grenades were sealed---Recovery was made on the spot and such mashirnama was prepared by 07:00 p.m. and the defusing took place at 08:15 p.m., with a delay of only an hour---Recovered weapons, sealed on the spot, were also found in working condition by the Ballistic Examiner---Prosecution had failed to prove its case against the accused persons under S. 6(2)(ee) of Anti-Terrorism Act, 1997, as such conviction and sentence awarded to the accused persons being not sustainable under the law was set aside---However, conviction and sentence awarded to the accused persons under S. 23(1)(a), Sindh Arms Act, 2013 and under S. 5 of the Explosive Substances Act, 1908 was maintained---Appeal was disposed of with modification in sentence.

Muhammad Mumtaz Qadri v. The State PLD 2015 Isl. 85; Mohtarma Benazir Bhutto and another v. President of Pakistan and another PLD 1998 SC 388; Dr. Mubashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Akram v. The State 2009 SCMR 230; Tariq Pervaiz v. The State 1995 SCMR 1345; Loung through Superintendent, Central Prison Hyderabad v. The State 1999 PCr.LJ 595; Muhammad Yaqub v. The State 2020 SCMR 853; Naeemullah Niazi v. The State and another 2017 PCr.LJ Note 147, p.145; Abdul Baqi alias Talha and 2 others v. The State 2015 PCr.LJ 929 and Muhammad Ashraf Khan Tareen and another v. The State and another 1996 SCMR 1747 ref.

(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), Ss. 6(2)(ee) & 7---Act of terrorism, possession of hand grenade, pistol, revolver and bullets---Appreciation of evidence---Safe custody of recovered weapons established---Prosecution case was that hand grenade, pistol, revolver and bullets were recovered from the possession of the accused---With regard to the safe custody of the same, the recovered case property was dispatched on the next day of the incident i.e. 24-11-2020 and the Ballistic Examiner noted under General Remarks in his report that the parcels received were in sealed condition and that "the seals were intact---Thus, possession of the hand grenades and firearms was undeniably proven against the accused persons which had not been disputed in any manner---Prosecution had failed to prove its case against the accused persons under S. 6(2)(ee) of Anti-Terrorism Act, 1997, as such conviction and sentence awarded to the accused persons being not sustainable under the law was set aside---However, conviction and sentence awarded to the accused persons under S. 23(1)(a) Sindh Arms Act, 2013 and under S. 5 of the Explosive Substances Act, 1908 was maintained---Appeal was disposed of with modification in sentence.

Zahid and Another v. The State 2020 SCMR 590 rel.

(c) Criminal trial---

----News clipping---Evidentiary value---News clippings produced by the accused persons alone could never be considered sufficient evidence to prove a fact and could, at most, be confirmatory evidence in the presence of some direct evidence.

(d) 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), Ss. 6(2)(ee) & 7---Constitution of Pakistan, Art. 13---Act of terrorism, possession of hand grenade, pistol, revolver and bullets---Appreciation of evidence---Prosecution case was that hand grenade, pistol, revolver and bullets were recovered from the possession of the accused---Prosecution case was that the accused persons were merely possessing hand grenades and had not used them at any point---Although the recovery of hand grenades was not disputed and the prosecution witnesses were at no point cross-examined with respect to the same---However, it was never established that such recovery was an act of terrorism for which proving terrorist intent was necessary for which object, design and purpose of possession was needed; then only could a conviction under S. 7 of the Anti-Terrorism Act, 1997 be justified---Nothing was brought on record to suggest that the accused persons were part of a terrorist organization or possessed terroristic intent, design or purpose---Section 6 of the Anti-Terrorism Act, 1997 was a strict mens rea offence; where it was important for the prosecution to establish such mens rea alongside the actus reus, which was not done in the present case---Even otherwise, it was a matter of record that the accused persons were convicted under S. 5 of the Explosive Substances Act, 1908 for possessing hand grenades and also under S. 7(1)(ff) of the Anti-Terrorism Act, 1997, the offence being described under S. 6(2)(ee) as 'using explosives or having explosives substances in a manner contrary to S. 6(2)(ee) read with S. 6(1)(b) or (c) of the 1997 Act---Accused persons were essentially punished twice for the same offence which was a violation of their inalienable right prescribed by Art. 13 of the Constitution---Circumstances established that the prosecution had failed to prove its case against the accused persons under S. 6(2)(ee), Anti-Terrorism Act, 1997 as such conviction and sentence awarded to the accused persons being not sustainable under the law was set aside---However, conviction and sentence awarded to the accused persons under S. 23(1)(a) Sindh Arms Act, 1908 and under S. 5 of the Explosive Substances Act, 1908 was maintained---Appeal was disposed of with modification in sentence.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61; Suneil v. The State 2018 PCr.LJ 959 and Muhammad Ayaz v. Superintendent District Jail, Timergara, District Lower Dir and 3 others PLD 2018 Pesh. 1 rel.

Tariq Hussain for Appellants (in Spl. Cr. Anti-Terrorism Appeals Nos. 44 and 45 of 2021).

Qadir Khan for Appellants (in Spl. Cr. Anti-Terrorism Appeals Nos. 46 and 47 of 2021).

Tariq Hussain for Appellants (in Spl. Cr. Anti-Terrorism Appeals Nos. 48 and 49 of 2021).

Abrar Ali Khichi, Additional Prosecutor-General, Sindh for the State.

2023 M L D 1222

[Sindh]

Before Zafar Ahmed Rajput and Muhammad Faisal Kamal Alam, JJ

UZMA NAZ and others---Petitioners

Versus

The DIRECTOR GENERAL RANGERS SINDH and others---Respondents

C.P. No. D-5895 of 2017, decided on 9th May, 2022.

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

----Arts. 90, 92, 93 & 129(e)---Civil Procedure Code (V of 1908), O. VIII, R. 4---Constitution of Pakistan, Arts. 23 & 24---Evasive denial---Documentary evidence---Property rights---Petitioners claimed to be owners of plots allotted to them on the basis of registered documents and had sought vacant and physical possession from respondent Authorities--- Validity--- Documents relied upon by petitioners were not controverted or challenged by respondents through some subsequent official acts or documents---Every fact in its para-wise comments were denied by respondent authorities but without substantiating it with documentary evidence---All the documents so relied upon were in fact official record of respondent authorities---Presumption of genuineness and authenticity was attached to those documents, as envisaged in Arts. 90, 92 & 93 of Qanun-e-Shahadat, 1984, besides, Art. 129(e) of Qanun-e-Shahadat, 1984, was also applicable to registered Lease Deed, Addenda Deed and the Acknowledgment of Possession Order in respect of the subject land---Petitioners were deprived from using and enjoying their respective plots---Fundamental rights of petitioners to own, use and enjoy their property, as envisaged in Arts. 23 & 24 of the Constitution, were violated---High Court declared that petitioners were lawful and bona fide allottees of their respective plots---High Court directed respondent authorities to immediately vacate entire subject land and to hand over possession of the same to Karachi Development Authority, which would give possession to lawful and bona fide allottees/petitioners, after fulfilling codal formalities---High Court further directed that if subject land was required by respondent authorities or any other Government functionary, then the same should be acquired in accordance with law, by paying market value to petitioners---Constitutional petition was allowed accordingly.

Gulzar Ahmed v. Province of Sindh through Chief Secretary and 19 others PLD 2019 Sindh 697 rel.

S. Wajahat Abbas for Petitioners.

Qaim Ali Memon, Khursheed Javed, D.A.G. and Younus Muhammad, Law Officer for Respondent No. 1.

Miran Muhammad Shah, Additional A.G. Sindh for Respondent No. 3.

Mubarak Ali Shah, Iqbal Khurram and Naheed Akhtar for Respondents Nos. 5, 7 and 8.

Ali Asghar Mahar, Focal Person for Respondent No. 9.

Nemo Respondents Nos. 2, 4 and 6.

Dhani Bukhsh Lashari for SBCA.

2023 M L D 1283

[Sindh]

Before Muhammad Shafi Siddiqui, J

ABDUL RAUF KHAN---Plaintiff

Versus

MEEZAN BANK LIMITED through President and another---Defendants

Suit No. 2642 of 2021, decided on 13th February, 2023.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S. 20 & O. VII, R. 10---Suit for declaration---Suits to be instituted where defendants reside or cause of action arises---Return of plaint---Scope---Plaintiff filed a suit for declaration and damages before the High Court on original side---Validity---Cheque was returned by the Bank at District KM and the Criminal Miscellaneous Application was also filed before the Additional Sessions Judge at District KM---Legal notice was served upon the Bank at District KM, hence for all intents and purposes the cause if at all triggered was within the local limits of District KM and the High Court had no territorial jurisdiction---Plaint was returned to the plaintiff to enable him to avail the remedy before the Court having jurisdiction.

Muhammad Haroon Shaikh for Plaintiff.

2023 M L D 1321

[Sindh (Larkana Bench)]

Before Adnan Iqbal Chaudhry, J

MAZHAR ALI---Petitioner

Versus

ASAD ALI and 4 others---Respondents

Constitutional Petition No. S-240 of 2017, decided on 12th January, 2023.

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

----S. 9---Family Courts Rules, 1965, R. 6---Court having jurisdiction to entertain application for guardianship---Territorial jurisdiction of the Family Court is governed by R. 6 of the Family Courts Rules, 1965 and not by the provisions of the Guardians and Wards Act, 1890---Unless the minor has been unlawfully removed from custody, the residence of the minor can be taken as the place where the cause of action arises as per R. 6(a) of the Family Courts Rules, 1965, for making a guardianship application---Unlike S. 9 of the Guardians and Wards Act, 1890, R. 6 of the Family Courts Rules, 1965, makes no distinction between an application for guardianship of the person of the minor and the property of the minor.

Muhammad Khalid Karim v. Saadia Yaqub PLD 2012

SC 66 rel.

Ali Azhar Tunio for Petitioner.

Abdul Ghani Bijarani for Respondents.

Liaquat Ali Shar, A.A.G. Sindh.

2023 M L D 1354

[Sindh]

Before Muhammad Faisal Kamal Alam, J

YASIN HASSAN (DECEASED): In the matter of

S.M.A. No. 440 of 2020, decided on 12th August, 2022.

Succession Act (XXXIX of 1925)---

----S. 278---Letter of Administration---Distant kinder---Category---Petitioner sought issuance of Letter of Administration in favour of legal heirs of deceased owners of suit properties---Validity---Children of pre-deceased sister and brother fell under the category of distant kinder and were only to inherit share when there was no sharer and residuary---When brothers and sisters of an unmarried and issueless deceased had also died, being sharer and residuary, respectively, distant kinder could inherit---Wife of petitioner was daughter of predeceased brother of deceased owner of estate---After the death of wife of petitioner, her legal heirs would also get their proportionate inheritance in the estate along with other shareholders---Petition was allowed accordingly.

Waris Ali and others v. Rasoolan Bibi PLD 2014 SC 779; Province of Punjab through Collector and others v. Muhammad Saleem and others PLD 2014 SC 783 and Khawaja Rashidullah and another v. Khawaja Faridullah PLD 2018 Sindh 129 rel.

Saleem-uz-Zaman for Petitioner.

2023 M L D 1366

[Sindh]

Before Aqeel Ahmed Abbasi and Kausar Sultana Hussain, JJ

PROVINCE OF SINDH through Chief Secretary, Government of Sindh and another---Appellants

Versus

SINDH VALLEY SAFARI through Proprietor and 3 others---Respondents

High Court Appeal No. 413 of 2022, decided on 19th December, 2022.

Sindh Wildlife Protection, Preservation, Conservation and Management Rules, 2022---

----R. 9---Private Wildlife Farm---Hunting ban---Legality---Forest and Wildlife Department challenged the order of the Single Judge of the High Court, which temporarily suspended the applicability of the notification imposing a hunting ban to the extent of Private Wildlife Farms of the respondents---Validity---Impugned notification besides being invalid was not attracted to the Private Wildlife Farms---Such unilateral decision at the time of start of hunting season was violative of principles of natural justice and appeared to have been issued in excess of authority and without any reasonable basis---Single Judge of High Court had rightly ordered for maintaining status quo in respect of respondents---Appeal was dismissed.

Shahryar Mahar, Additional Advocate General, Sindh for Appellants.

2023 M L D 1388

[Sindh]

Before Mahmood A. Khan, J

ANWAR UL HAQ---Plaintiff

Versus

NAWABUDDIN---Defendant

Suit No. 816 of 2016, decided on 4th January, 2023.

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

----Ss. 8 & 54---Sindh Rented Premises Ordinance (XVII of 1979), S. 10---Suit by person dispossessed of immovable property---Relationship of landlord and tenant, claim of---Scope---Plaintiff filed a suit for possession, permanent injunction, mesne profits and damages---Contention of defendant was that he was a tenant in the suit property---Validity---Alleged tenancy of the defendant did not come in the way of the plaintiff as neither the plaintiff was cross-examined on this point nor the defendant was able to come up with any evidence except for the oral statement which was otherwise rebutted---Record of Miscellaneous Rent Case filed under S. 10 of the Sindh Rented Premises Ordinance, 1979, could not help the defendant in this regard as it had not been brought on record that the same was ever contested on the part of the plaintiff---Defendant had failed to prove his claim of being a tenant---Plaintiff was found entitled to recover the amount in accordance with annual rental value of the subject property for the period of occupation---Suit was decreed.

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

----Ss. 8 & 9---Recovery of specific immoveable property---Scope---There is no contradiction between Ss. 8 & 9 of the Specific Relief Act, 1877, rather S. 9 is a special provision for early grievance and irrespective of this distinction, S. 8 is always available in this regard for the plaintiff for his redressal.

Muhammad Sajjad Abbasi for Plaintiff.

Nemo for Defendant.

2023 M L D 1426

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

DARGAHI---Appellant

Versus

The STATE---Respondent

Special Anti-Terrorism Jail Appeal No. D-46 of 2021, decided on 7th December, 2022.

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

----Ss. 302, 324, 353, 395, 399, 402, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, dacoity, making preparation for dacoity, assembling for purpose of committing dacoity, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Accused were charged that they made firing upon the police party, due to which one Police Constable was hit and died and they also took the official rifle---Record showed that the incident took place in dark night at 01:20 a.m.---Identification by the headlight of a motorcycle was weak type of evidence requiring strong corroboration but the same was badly lacking in the present case---Motorcycle, which was source of identification, was not produced before the Trial Court---Thus, possibility of mistaken identity could not be satisfactorily excluded---Case of prosecution was that accused was armed with Kalashnikov at the time of incident, but no firearm injury was found in postmortem report---Post mortem report reflected that deceased had received injuries by means of hard and blunt substance---According to prosecution evidence, Police Officials had identified the accused by name, giving parentage and addresses but none of the witnesses explained as to how they knew accused prior to the incident---Non-disclosure of source/previous connection with the accused had also created reasonable doubt regarding identification of accused at the time of incident---Circumstances established that the prosecution had failed to prove the guilt of the accused---Appeal against conviction was allowed accordingly.

Arshad Khan v. The State 2017 SCMR 564 and Muhammad Ilyas and others v. The State 2011 SCMR 460 ref.

Momin v. The State and another PLD 2020 Pesh. 70 rel.

(b) Criminal trial---

----Conviction---Scope---Guilt against the accused must rest surely and firmly on the evidence produced in the case and plain inference of the guilt may irresistibly be drawn from the evidence on the record.

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

----Ss. 302, 324, 353, 395, 399, 402, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, dacoity, making preparation for dacoity, assembling for purpose of committing dacoity, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Case involving murder of a Police Official---Investigation by the same police---Lack of independent investigation---Accused were charged that they made firing upon the police party, due to which one Police Constable was hit and died and they also took the official rifle---In the present case, the investigation had been carried out by the same police---Such investigation could not be termed as honest investigation as evidence of Police officials appeared to be unnatural and unbelievable---Standard of proof should have been far higher as compared to any other criminal case when according to prosecution, it was a police case in which one Police Constable was murdered---Thus, it was desirable and even imperative that such case should have been investigated by some other agency, as police in such case could not have been investigators of their own case---Such investigation lacked independent character and conviction could not be based on the basis of such investigation, when it was riddled with many lacunas---Circumstances established that the prosecution had failed to prove the guilt of the accused---Appeal against conviction was allowed accordingly.

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

(d) Criminal trial---

----Benefit of doubt---Principle---For giving benefit of doubt to an accused it was not necessary that there should be many circumstances---If there is a single circumstance which created reasonable doubt about the guilt of the accused, then the accused would be entitled to its benefit not as a matter of grace and concession but as matter of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Qurban Ali Malano for Appellant.

Zulfiqar Ali Jatoi, Additional Prosecutor General for the State.

Mehfooz Ahmed Awan for Legal heirs of Deceased.

2023 M L D 1464

[Sindh]

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

DANISH PARABHA SHANKAR KANERIA---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Inter Provincial Coordination and another---Respondents

Constitutional Petition No. 6268 of 2020, decided on 12th January, 2022.

Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Cricket player---Life time suspension---Discrimination---Petitioner was an international cricketer who was convicted by authorities for his involvement in Spot Fixing Scandal and authorities imposed life time suspension upon him from playing cricket---Validity---Petitioner did not make any admission until coming forward to confess his involvement in the affair through a privately arranged interview more than six years after exhausting legal options otherwise available to him--- Petitioner was not discriminated as no instance of any participant similarly placed to the petitioner in terms of suffering a life suspension was rehabilitated by Pakistan Cricket Board---Only examples forthcoming were of players who had been handed down lesser bans for a defined period by either the International Cricket Council, Pakistan Cricket Board or another national board, as the case may be, and had then resumed their participation in the game after commencing rehabilitation upon lapse of that period or after the sanction was otherwise lifted by the imposing authority---High Court declined to interfere in the matter--- Constitutional petition was dismissed accordingly.

Asad Iftikhar for Petitioner.

Khaleeque Ahmed, D.A.G. for Respondent No. 1.

Taffazul Haider Rizvi for Respondent No. 2.

2023 M L D 1507

[Sindh]

Before Mohammad Karim Khan Aghan and Zulfiqar Ali Sangi, JJ

SHAKEEL AHMED and 3 others---Appellants

Versus

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

Criminal Appeals Nos. 500 and 501 of 2021, decided on 22nd November, 2022.

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

----Ss. 9(c), 25 & 48---Criminal Procedure Code (V of 1898), S. 103---Recovery of narcotic substance---Appreciation of evidence---Police witnesses---Public witnesses, absence of---Charas weighing 22 kilogram was recovered from the possession of accused persons---Trial Court convicted accused persons and sentenced them to imprisonment for life---Plea raised by accused persons was that recovery of narcotic substance was not proved as no witness from public was associated with proceedings---Accused further contended that they were kept in illegal confinement before registration of criminal case against them---Validity---Reluctance of general public to become a witness in such cases has become a judicially recognized fact---There was no way out but to consider statement of official witnesses as no legal bar or restriction was imposed in such regard---No direct enmity or ill will was suggested by accused persons against complainant or any of the officials who participated in recovery proceedings during cross-examination---Police officials were good witnesses and could be relied upon if their testimony remained un-shattered during their cross-examination---Provision of S. 25 of Control of Narcotic Substances Act, 1997, provided exclusion of S. 103, Cr.P.C., during recovery proceedings---It was difficult to believe that four persons were arrested and were kept in wrongful confinement but no one from their relatives had made any complaint nor tried to rescue them or tried to get them released---Prosecution had successfully proved the case against accused persons beyond reasonable doubt, in circumstances---By flux of time in the cases of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country, if the case is otherwise proved--- Approach of the Court should be dynamic and pragmatic in appreciating facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases---No drug peddler should be acquitted in narcotics case on technicalities---Prosecution proved its case against accused persons beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence in the shape of oral/direct and documentary evidence corroborated by report of chemical examiner---High Court maintained conviction and sentence awarded to accused persons as judgment passed by Trial Court did not suffer from any illegality, gross irregularities or infirmities---Appeal against conviction was dismissed, in circumstances.

Muhammad Hashim v. The State PLD 2004 SC 856; Ishaque v. The State 2022 SMCR 1422; Zafar Iqbal v. The State 2022 SCMR 1375; Faisal Shahzad v. The State 2022 SMR 905; Qaisar and others v. The State 2022 SCMR 1641; Akhtar Gul v. The State 2022 SCMR 1627; Naveed Akhtar v. The State 2022 SCMR 1784; Sharafat Khan v. The State PLD 2022 SC 281; Ajab Khan v. The State 2022 SCMR 317; Zafar v. The State 2008 SCMR 1254 and Farooq v. The State 2008 SCMR 970 ref.

Salah-uddin v. The State 2010 SCMR 1962; Shabbir Hussain v. The State 2021 SCMR 198; Mushtaq Ahmad v. The State and another 2020 SCMR 474 and Ghulam Qadir v. The State PLD 2006 SC 61 rel.

Muhammad Farooq for Appellants.

Habib Ahmed, Special Prosecutor ANF for the State.

2023 M L D 1532

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

ISLAM SHAH and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 126 of 2021, decided on 3rd November, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictions and dishonest improvements in the statements of witnesses---Effect---Prosecution case was that 72 packets of hashish weighing 80 kilograms were recovered from the secret cavities of the vehicle of the accused persons---Mashirnama of recovery did not speak about the number of parcels in which charas was sealed after separating the samples---However, the complainant during examination-in-chief produced three sealed parcels as Article B to D and further deposed that Article B contained 12 packets of charas, Article C contained 30 packets of charas and Article D contained 30 packets of Charas which in total became 72 packets---As per the evidence of complainant all the remaining property was sealed at the spot---Mashir during his examination-in-chief deposed that case property was sealed in two parcels and further deposed that the property available in the court was Article B which contained 36 packets of charas and Article C contained 37 packets of charas totalling 73 and there was no explanation as to how one (extra) packet of charas came about from the charas allegedly recovered and sealed at the spot---Further, both witnesses were in contradiction in respect of bags/parcels, as one of them deposed it as three and the other as two---Mashir during cross-examination also admitted that the complainant produced three sealed parcels of Narcotic Substance as Articles B, C and D---However, said witness admitted during his evidence that only Articles C and D were present before the court containing 73 packets of charas and as such, all said material contradictions cut the roots of the prosecution case and made it doubtful---Complainant in his examination-in-chief had deposed that he had issued notices under Ss. 22 & 23 of Control of Narcotic Substances Act, 1997 (the 'CNS Act, 1997') to the driver of the bus and he had not deposed a single word that any duty clerk was with them at the time of recovery---However, mashir had stated during cross-examination that the notices under Ss. 22 & 23 of CNS Act, 1997, were prepared by the duty clerk on the dictation of Seizing Officer---Said witness also during his examination-in-chief did not depose a single word as to whether the duty clerk was with them at the time of recovery or not which made the story of prosecution doubtful---Appeal against conviction was allowed accordingly.

Gulzar v. The State 2021 SCMR 380; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Zubair Khan v. The State 2021 SCMR 492; Qaiser Khan v. The State 2021 SCMR 363; Riaz Mian and another v. The State 2014 SCMR 1165; Nasar-ud-Din v. The State 2021 YLR 457; Inayat v. The State 2010 PCr.LJ 825 and Abdul Rasheed v. The State 2009 SCMR 306 ref.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that 72 packets of hashish weighing 80 kilograms were recovered from the secret cavities of the vehicle of the accused persons---Prosecution case was that from each slab, 10 grams were separated for samples and 72 packets were prepared---As per evidence of the Investigation Officer he sent sealed parcels to the Chemical Examiner---However, on perusal of the report issued by Chemical Examiner, gross weight of parcels 1 to 73 containing 15 grams each totalled 1080 grams---However, again it was mentioned in the said report with respect to net weight of 1 to 72 samples which contained 10 grams each and the total weight was 720 grams which also created very serious doubt in respect of the samples as to whether 73 or 72 samples were received by the Chemical Examiner---Even the weight was not matched with the total weight and gross weight of both 72 and 73 samples---Appeal against conviction was allowed accordingly.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody and safe transmission of the property to the Chemical Examiner not established---Prosecution case was that 72 packets of hashish containing 80 kilograms were recovered from the secret cavities of the vehicle of the accused persons---Investigation Officer deposed that he sent sample parcels to the office of the Chemical Examiner through a clerk, however, he stated that he did not remember name of said clerk---On perusal of the Chemical Examiner's report, it reflected that the property was received through Hawaldar but said Hawaladar was neither examined by the Investigation Officer nor was produced before the Trial Court to certify that he took the property from the Investigation Officer and deposited the same with the Chemical Examiner---Investigation Officer further stated during cross-examination that after receiving the case property he deposited the same in the Malkhana and Malkhana Incharge was Subedar Major however, he did not remember his name---Investigation Officer admitted that he had not produced any entry in respect of depositing the case property in Malkhana---Investigation Officer also admitted that he had not produced any entry in the respect that he received case property from Malkhana Incharge for sending the same to the office of the Chemical Examiner---Prosecution had not examined the Incharge of the Malkhana (Subedar Major) to prove safe custody---Hence, it could easily be said that the prosecution had not proved the safe custody and safe transmission of the property to the Chemical Examiner which rendered the chemical report as worthless---Appeal against conviction was allowed accordingly.

Mst. Razia Sultana v. The State and another 2019 SCMR 1300; State v. Imam Bakhsh 2018 SCMR 2039 and Zahir Shah alias Shat v. The State through Advocate General, Khyber Pakhtunkhwa 2019 SCMR 2004 and Qaiser and another v. The State 2022 SCMR 1641 rel.

(d) Criminal trial---

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

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Raheel-ud-Din for Appellants.

Ali Tahir, Special Prosecutor, Coast Guards for the State.

2023 M L D 1556

[Sindh]

Before Nadeem Akhtar, J

MANSOOR-UL-HAQUE SOLANGI---Petitioner

Versus

PAKISTAN INDUSTRIAL DEVELOPMENT CORPORATION (PVT.) LTD. (PIDC) and 2 others---Respondents

Constitutional Petition No. S-98 of 2017, decided on 28th April, 2023.

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

----S. 15---Ejectment of tenant---Personal need of landlord---Default in payment of rent and utility charges---Concurrent findings of two Courts below---Special costs, imposing of---Petitioner/tenant was aggrieved of eviction order passed by Rent Controller, which order was maintained by Lower Appellate Court---Validity---Questions of default of petitioner/tenant and personal need of respondent/landlord were simple---Evidence produced by respondent/landlord remained unchallenged and un-rebutted---Petitioner/tenant did not lead any evidence at all but made every possible effort to complicate the matter and to prolong litigation by unnecessarily resisting at all levels---Precious time of High Court was consumed in frivolous petition, which time could have been utilized in hearing and deciding other legitimate and genuine cases involving serious questions of law and genuine disputes between parties pending adjudication before High Court---High Court imposed heavy costs upon petitioner as his petition was a clear and blatant abuse of process of Court---High Court in exercise of Constitutional jurisdiction, declined to interfere in concurrent findings of both the Courts below which were in accord with material on record and settled law and such findings did not suffer from any illegality or jurisdictional defect---Constitutional petition was dismissed, in circumstances.

Mansoor-ul-Haq Solangi v. Pakistan Industrial Development Corporation, Karachi and 2 others 2003 SCMR 1483; Allies Book Corporation through legal heirs v. Sultan Ahmed and others 2006 SCMR 152; Muhammad Shoaib Naji and others v. Muhammad Yaseen and others 2011 SCMR 1306; Badruddin v. Muhammad Yousuf 1994 SCMR 1900; Abdul Ghafoor v. Mst. Amtul Saeeda 1999 SCMR 28; Barkat Ali v. Muhammad Nawaz PLD 2004 SC 489; Messrs Shell Pakistan Ltd. through Authorized Officer v. Rana Azhar Ali Khan through L.Rs and others 2020 CLC 14; Abdul Hafeez v. Mohammad Yousuf and others 2020 MLD 7; Nizar Noor and others v. Ameer Ali and others 2020 CLC 254; Syed Haroon Aziz v. Mrs. Kishwar Mateen and 2 others 2017 CLC Note 197; Dr. Masuma Hasan v. Muhammad Hafeez and 2 others 2015 MLD 1577; Muhammad Ishaque Qureshi v. Zahir Hussain Jafri and 2 others PLD 2013 Sindh 245; Pakistan State Oil Company Ltd. through Authorized Officer v. Muhammad Rafique and 4 others 2010 CLC 1300; Muhammad Afzal v. IInd Additional District and Sessions Judge and 2 others PLD 2008 Karachi 189 and Muhammad Qasim v. VIth Additional District and Sessions Judge, Karachi Central and 2 others 2008 CLC 446 ref.

Capital Development Authority, through Chairman, CDA, Islamabad v. Ahmed Murtaza and another 2023 SCMR 61 and Qazi Naveed ul Islam v. District Judge Gujrat and others PLD 2023 SC 298 rel.

Zamir Hussain Ghumro along with Imtiaz Ali Solangi for Petitioner and the Petitioner.

Asim Iqbal for Respondent No. 1.

2023 M L D 1579

[Sindh]

Before Zulfiqar Ahmad Khan, J

NABEEL IFTIKHAR---Plaintiff

Versus

Haji MASOOD and 4 others---Defendants

Suit No. 1355 of 2009, decided on 10th June, 2022.

Suit for damages---

----Plaintiff filed suit for damages with the claim that he was returning from work on his motorcycle when all of a sudden a heavy iron pole erected on the roadside by the defendants suddenly collapsed and fell on his head---Validity---Plaintiff had permanently lost vision in his left eye, which is a significant and irreversible disability---Plaintiff's disability and dependency on others due to impaired vision hindered his mobility, especially at night, and he incurred additional expenses for transportation as he could not drive---Plaintiff suffered traumatic injuries resulting in loss of amenities, enormous pain, mental anguish and disability, affecting his social life, education and self-esteem---Plaintiff had been dependent on others and would continue to rely on them due to partial vision loss, experiencing sleep disturbances, vertigo, and intense headaches caused by head injuries---Plaintiff had undergone multiple operations, treatments, grafting, and injections, causing extreme pain, mental anguish and a bleak outlook on life due to the permanent and severe injuries sustained, with no prospects of healing or restoration---Plaintiff's life expectancy had been shortened due to the severity of the injuries, with minimal improvement over the past year, and the sympathetic damage had affected the second eye---Plaintiff faced humiliation due to the loss of vision and altered appearance, making him a target of distress and ridicule---Plaintiff received treatment at different hospitals, undergoing surgeries, check-ups, and various medical tests---Additional medical expenses were anticipated in the future, including major operations, necessitating the purchase of medical equipment---Plaintiff had been advised to seek treatment abroad but was unable to do so due to financial constraints, resulting in current and projected medical expenses amounting to approximately Rs. 1 million---At the time of the accident, the plaintiff was 30 years old, with a projected life expectancy of 70 years; he had a promising career in software development, but due to the loss of vision and other injuries, his ability to work efficiently and effectively had been significantly impaired; his earning potential had been diminished, resulting in a loss of approximately Rs. 50,000 per month---This had also hindered his professional growth, advancement, and future earning prospects, causing substantial pecuniary loss and dimming his chances of career progression---Evidence brought on record had remained unchallenged and uncontroverted---Defendants were liable to compensate the plaintiff---Suit was decreed as prayed, in circumstances.

Sri Manmatha Nath Kuri v. Moulvi Muhammad Mokhlesur Rehman and another PLD 1969 SC 565 ref.

Ms. Afsheen Fatima for Plaintiff.

Nemo for Defendants.

2023 M L D 1603

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

SHAIKH IMRAN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 181, 189 and 216 of 2021, decided on 28th January, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Prosecution case was that 78 kilograms charas and 08 kilograms heroin were recovered from the possession of accused persons---Record showed that the raiding party, headed by complainant, apprehended the accused persons after receiving spy information from a special informer at a Gas Station---From the possession of accused persons, they recovered a total of 78 kilograms of charas and 8 kilograms of heroin in the shape of packets---Complainant admittedly tried looking for private mashirs of the locality, but nobody agreed, therefore he appointed ASI and Police Constable---Recovered charas was weighed on an electronic scale available with them---Ten (10) grams of charas from each packet was separated from the total quantity and sealed on the spot for chemical examination whereas the entire quantity of heroin was sealed alongside it for chemical examination as well---Moreso, the prosecution witnesses had provided an uninterrupted chain of facts ranging from arrest and seizure to forensic analysis of the contraband---Witnesses were in comfortable unison on all the salient features regarding interception of the charas and heroin as well as all the steps taken thereafter---All the witnesses had unanimously deposed that the case property in Court was the same and they were at no point cross-examined on the same point by the defence alleging tampering with the same---Contraband so recovered from the accused persons had been proved by examining the complainant, mashir of the arrest and recovery and the Police Officer responsible for the delivery of the contraband to the Chemical Examiner---Recovered narcotics were kept in safe custody from the time of their recovery to the time when they were taken to the Chemical Examiner---Furthermore, narcotics were sealed on the spot and had remained sealed in the malkhana before being transported to the Chemical Examiner---Seals on the same parcels delivered were found intact by the Chemical Examiner, further proving safe custody and transmission of the same---Even otherwise, it appeared rather unbelievable that such a huge quantity of charas and heroin could be foisted on the accused persons without any reason to falsely implicate them---Circumstances established that the prosecution succeeded in proving its case against the accused persons beyond any shadow of doubt--- Appeal against conviction was accordingly dismissed.

Muhammad Mansha v. The State 1997 SCMR 617; Loung v. The State 1999 PCr.LJ 595; Akhtar Ali v. The State 2009 PCr.LJ 50; Nazeer Ahmed v. The State PLD 2009 Kar. 191; Mst. Jameela and another v. The State PLD 2012 SC 369; Muhammad Qasim v. The State 2018 PCr.LJ 67; The State through Regional Director ANF v. Imam Baksh and others 2018 SCMR 2039; Abdul Ghani and others v. The State and others 2019 SCMR 608; Abdul Majeed v. The State 2008 MLD 314; Mushtaq Ahmad v. The State and another 2020 SCMR 474; Shabbir Hussain v. The State 2021 SCMR 198; Aijaz Ali Rajpar v. The State 2021 SCMR 1773 and Shafaullah Khan v. The State 2021 SCMR 2005 ref.

The State v. Abdali Shah 2009 SCMR 291; Mushtaq Ahmed v. The State 2020 SCMR 474 and Muhammad Younas and others v. Mst. Parveen alias Mano and others 2007 SCMR 393 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Police witnesses---Scope---Prosecution case was that 78 kilograms charas and 08 kilograms heroin were recovered from the possession of accused persons---Defence objected that evidence of the Police Officials was not trustworthy and that no independent or private person had been cited as a witness, as such the prosecution case was doubtful---Said contention however had very little merit to it---There was no universal rule that evidence of an interested witness per se must be invariably corroborated by independent evidence---Police Officials were as good witnesses as any other private witness and their evidence was subject to same standard of proof and the principles of the scrutiny as applicable to any other category of witnesses---In absence of any animus, infirmity or flaw in their evidence, the testimony of police witnesses could be relied upon without demur---Moreover, S. 103, Cr.P.C., had been excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S. 25 of that Act---Circumstances established that the prosecution succeeded in proving its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly dismissed.

Hussain Shah and others v. The State PLD 2020 SC 132 and Muhammad Hanif v. The State 2003 SCMR 1237 rel.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss. 342 & 535---Possession of narcotics---Appreciation of evidence---Defence plea not bearing the signatures of accused---Relevance---Prosecution case was that 78 kilograms charas and 08 kilograms heroin were recovered from the possession of accused persons---Defence objected that the pleas of the accused persons were never signed by them and that they had never made any plea before the Trial Court---Validity---Presumption of truth was attached with the record kept and maintained by the Court---Not obtaining signature or thumb-impression of the accused persons over defence plea did not tantamount to an illegality that would vitiate the trial and the same was even otherwise curable under S. 535, Cr.P.C.---Had the plea been of guilty, prejudice would have been caused to the accused persons which would not have been curable under S. 535, Cr.P.C., as the same meant an admission of all the facts furnished by the prosecution, however the plea of not guilty did not prejudice the case of the accused persons in any manner---Circumstances established that the prosecution succeeded in proving its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly dismissed.

Ghulam Rasool v. The State 1992 MLD 2455 rel.

(d) 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 78 kilograms charas and 08 kilograms heroin were recovered from the possession of accused persons---Defence alleged that accused were arrested by the Rangers and then handed over to Anti Narcotics Force Officials---Such defence plea appeared to be an afterthought, which had rightly been disbelieved by the Trial Court---Accused persons had failed to provide any valid proof such as news clippings from a TV channel to ascertain that they had been arrested by Rangers---Moreover, the accused persons examined four witnesses, one related to each of the accused---Each one of these four defence witnesses, while asserting that the accused persons were arrested by Rangers also admitted that they had, at no point, considered filing a motion before a Court of law for their recovery from the alleged "illegal confinement" by Rangers nor had any of them approached any Rangers higher-ups to ensure the safe return of the accused persons---As far as defence witness was concerned, he stated that he being the Bureau Chief at a TV Channel had come across the news clipping of the arrest of the accused persons by Rangers personnel, however in his cross-examination admitted that he had come across this information by another reporter and that he had made no efforts to confirm the same "news"---As such, belated arrangements made by the accused persons of well-wishers to testify in their favour failed to override positive evidence pointing towards their culpability---Circumstances established that the prosecution succeeded in proving its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly dismissed.

Ibrarullah v. The State 2021 SCMR 128 rel.

Aftab Ahmed for Appellants (in Criminal Appeal No. 181 of 2021).

Saifullah for Appellant (in Criminal Appeal No. 189 of 2021).

Qadir Khan for Appellant (in Criminal Appeal No. 216 of 2021).

Habib Ahmed, Special Prosecutor ANF for the State (in all cases).

2023 M L D 1795

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Amjad Ali Sahito, JJ

ATTA MUHAMMAD and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-197 and Confirmation Case No. 44 of 2019, decided on 21st December, 2021.

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

----Ss. 302(b), 324, 353, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Dying declaration---Scope---Accused were charged for making fires upon the Police Officials, when they were signalled to stop them, due to which, one Police Official was hit and died, whereas other sustained injury---Deceased while recording his dying declaration had implicated co-accused, who had fired upon him and had not implicated other accused persons---Deceased disclosed that they were on patrol duty, they stopped one suspicious vehicle in which accused was sitting and meanwhile he fired upon him---On the contrary, the story narrated by the complainant was quite different---In his evidence recorded before the Trial Court, complainant deposed that they were busy in checking, meanwhile a suspicious big parado vehicle came there, they signalled them to stop the vehicle---All four doors of the vehicle were opened and five people alighted from it---Two accused persons caught hold of him and two caught hold of deceased and then accused made fire from his pistol upon deceased---Two unknown accused persons were caught holding him and after firing they went away---Such information was given to "15" which took injured than deceased to Hospital---Whereas Medical Officer in his evidence disclosed that at about 02:30 a.m. night a police mobile brought the injured---Neither the name of the complainant was mentioned in the dying declaration nor the Medical Officer disclosed that complainant was also present there---Deceased had not disclosed the number of accused persons who were available in the vehicle nor he has stated that two accused persons had caught hold of him then accused fired upon him---Circumstances established that the prosecution had failed to prove its case against the accused beyond a shadow of reasonable doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Nazir Ahmad v. The State 2018 SCMR 787; Muhammad Arif v. The State 2019 SCMR 631; Imtiaz alias Taj v. The State and others 2018 SCMR 344; Muhammad Ilyas and another v. Ameer Ali and another 2020 SCMR 305; Muhammad Asif v. The State 2017 SCMR 486; Mst. Asia. Bibi v. The State and others PLD 2019 SC 64; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344; Mst. Zahida Bibi v. The State PLD 2006 SC 255; Muhammad Nadeem alias Banka v. The State 2011 SCMR 1517; Abbas v. The State 2008 SCMR 108; Muhammad Bilal and another v. The State and others 2021 SCMR 1039 and Liaquat Ali v. The State 2008 SCMR 95 ref.

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

----Ss. 302(b), 324, 353, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of crime weapon and empties---Reliance---Scope---Accused were charged for making fires upon the Police Officials, when they were signalled to stop them, due to which, one Police Official was hit and died, whereas other sustained injury---After the arrest of the accused persons, they produced the respective crime weapons which were sent to the Office of the Chemical Examiner and received reports with the opinion that empties secured from the place of the incident were fired from the said respective weapons---Deceased in his dying declaration had disclosed that only five shots were made by accused at the occurrence but as per evidence of complainant, they secured five plus ten empties of Kalashnikov (total 15 empties) shells from the place of incident and the allegation against present accused was only that two of them caught hold of the complainant and two had caught hold of the deceased, then accused fired from his pistol---Said accused by leaving the injured they ran away, which reflected that prosecution had made dishonest improvements to strengthen the case showing the recovery of alleged crime weapons---Circumstances established that the prosecution had miserably failed to prove its case against the accused beyond a shadow of reasonable doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 302(b), 324, 353, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Test identification parade---Scope---Accused were charged for making fires upon the Police Officials, when they were signalled to stop them, due to which, one Police Official was hit and died, whereas other sustained injury---Accused, after the arrest, were put to an identification parade where they were picked up by the witnesses---Except for that piece of evidence no other evidence was available on record against the accused---Even it was not clear from the evidence of prosecution witnesses that after the arrest of two accused, they were kept in safe custody and witnesses had no chance to see them---All the prosecution witnesses were Police Officials and most of them were posted at the same police station hence possibility could not be ruled out that before holding of the identification parade accused were seen by them---Circumstances established that the prosecution had failed to prove its case against the accused beyond a shadow of reasonable doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 302(b), 324, 353, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Contradiction in the statements of witnesses---Scope---Accused were charged for making fires upon the Police Officials, when they were signalled to stop them, due to which, one Police Official was hit and died, whereas other sustained injury---Record showed that as per evidence of Medical Officer, Police Officer/ASP/witness was present and he reached the hospital and in his presence, a dying declaration of injured was recorded and he had also confirmed that four accused persons caught hold of injured then accused had made 4-5 fires upon him---Not impossible and it was not appealing to prudent mind that four accused persons caught hold of the injured at midnight and then the accused made five fires upon him but none of them received a single scratch from such firing---Furthermore, Police Constable in his evidence had disclosed that two accused caught hold of him and two caught hold of deceased---Evidence of Police Officer/ASP as well as the statement made by the deceased in his dying declaration were contrary to each other---Circumstances established that the prosecution had failed to prove its case against the accused beyond a shadow of reasonable doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Art. 46---Dying declaration---Scope---Dying declarations was not based on assumption---Relevancy of a dying declaration depended on the premise that in the circumstances no better evidence could be provided than the statement of a dying man---For ascertaining genuineness of a dying declaration whether intrinsically it rang true, whether there was any chance of mistake on the part of the dying person in identifying or naming his assailants, and whether it was free from being prompted by any outside quarter and was not inconsistent with other evidence and circumstances of the case.

(f) Criminal trial---

----Benefit of doubt---Principle---Prosecution is bound to prove its case beyond a shadow of doubt---If a reasonable doubt arises in the prosecution case, the benefit of same must be extended to the accused not as a grace or concession, but as a matter of right.

Mohammad Mansha v. The State 2018 SCMR 772 rel.

Noorul Haq Qureshi along with Saad Salman Ghani for Appellants.

Nazar Muhammad Memon, Deputy Prosecutor General, Sindh for the State.

2023 M L D 1831

[Sindh]

Before Adnan Iqbal Chaudhry and Zulfiqar Ali Sangi, JJ

GHULAM NABI alias NABOO alias NABI BUX---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-39 of 2022, decided on 24th January, 2023.

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

----S. 9(c)--- Recovery of narcotic substance--- Appreciation of evidence---Chain of custody, breaking of---Delay in sending samples---Effect---Charas weighing 2050 grams was allegedly recovered form accused---Trial Court convicted the accused and sentenced him to imprisonment for 5-1/2 years---Validity---Contraband material was dispatched to laboratory two days after its recovery but no explanation whatsoever was furnished by prosecution that where material was kept for the intervening period---Such fact led to adverse inference against prosecution about safe custody of Charas---All three improbabilities rendered entire claim of police party doubtful---When chain of custody was broken, report of chemical examiner had lost its sanctity and could not be relied upon safely to convict accused---Accused person is presumed to be innocent unless and unless he is proved guilty beyond reasonable doubt---Such presumption of innocence continues until prosecution has succeeded in proving charge against accused beyond reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence---High Court set aside conviction and sentence awarded to accused as prosecution failed to establish guilt against him beyond shadow of doubt and he was acquitted of the charge---Appeal was allowed, in circumstances.

1995 SCMR 1345; State v. Imam Bakhsh 2018 SCMR 2039; Qaiser and another v. The State 2022 SCMR 1641; Ayub Masih v. State PLD 2002 SC 1048 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

PLD 2001 Kar. 369; 2017 YLR 1292; 2017 PCr.LJ 501 and 2018 MLD 1025 ref.

Safdar Ali Ghouri for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General, Sindh for the State.

Date of hearing: 11th January, 2023.

ZULFIQAR ALI SANGI, J.---Through listed Criminal Appeal, the appellant has assailed the judgment dated 01.10.2022, passed by learned Special Judge for CNS/Sessions Judge, Kashmore alias Kandhkot, in Special Case No.15 of 2022 (Re. State v. Ghulam Nabi alias Naboo alias Nabi Bux Machhi), outcome of FIR bearing Crime No.22 of 2022 for the offence punishable under section 9(c), C.N.S, Act, 1997, registered with Police Station, Tangwani, whereby he has been convicted for an offence punishable under section 9(c) of Control of Narcotics Substances, Act, 1997 and sentenced to undergo R.I for five years and six months with fine of Rs.25,000/- and in default whereof to undergo S.I for five months and fifteen days, with benefit of section 382-B, Cr.P.C.

1. Succinctly, the facts of prosecution case are that on 18.05.2022, at about 1700 hours, a police party of P.S Tangwani, led by SIP Abdul Sattar Malik while patrolling on receipt of spy information apprehended the present accused from Haibat Shaheed Railways Crossing and recovered a black colour shopper containing 2050 grams of Charas wrapped in envelope with cash of Rs.300/-. Such mashirnama of arrest and recovery was prepared in presence of mashirs HC Khadim Hussain and PC Ghulam Muhammad. On return to Police Station, the instant case was registered against him on behalf of the State.

2. After usual investigation, the charge sheet against present appellant was submitted before learned trial Court where after completing the legal formalities together with supply of the copies of papers, the charge against him was framed to which he pleaded not guilty and claimed trial.

3. At the trial, the prosecution examined four (04) witnesses including complainant ASI Abdul Sattar Malik, mashir of arrest and recovery namely HC Khadim Hussain, Investigating Officer/SIP Rano Khan Mahar and PC Muhammad Yousif who had taken the property to the Chemical Laboratory who produced documents and items to support the prosecution case.

4. The present appellant in his statement recorded in terms of section 342, Cr.P.C. denied the allegations leveled against him by pleading his innocence, stating therein that he has falsely been implicated in this case by foisting the case property. He further added that he was arrested by police from his house on 16.05.2022 and kept in illegal confinement and his mother filed application under section 491, Cr.P.C. on 19.05.2022 and produced copy of certain applications, he lastly prayed for justice. He, however, neither examined himself on oath in disproof of the charge nor led any evidence in his defence.

5. The learned trial Court after hearing the counsels for the parties and evaluation of the material brought on record convicted and sentenced the appellant through impugned judgment, as stated above.

6. Per learned defence counsel, the appellant is innocent and has been falsely implicated in this case with malice; that there is conflict in between the evidence of the prosecution witnesses which has shattered the veracity of their evidence; that the learned trial Court has not considered the contradictory piece of evidence brought on record; that the recovery of narcotics substance has been foisted against the present appellant by the police of its own; that the safe custody and transmission of the case property is questionable and that there is also delay in dispatching the case property to the chemical laboratory, in these circumstances, the prosecution has miserably failed to prove the charge against the appellant beyond a shadow of reasonable doubt. Lastly, he prayed for setting aside the impugned judgment and for acquittal of the appellant by extending him benefit of the doubt. In support of his arguments, learned counsel relied upon the case laws reported in 1995 SCMR 1345, PLD 2001 Karachi 369, 2017 YLR 1292, 2017 PCr.LJ 501 and 2018 MLD 1025.

7. On the other hand, learned Additional P.G for the State contended that the prosecution has successfully proved the charge against the appellant by producing trustworthy and confidence inspiring evidence and that there was no enmity of the police to foist such a huge quantity of narcotics substance against the appellant at its own resources, therefore, the prosecution has successfully proved its case against the appellant beyond shadow of a reasonable doubt and the impugned judgment does not call for any interference by this Court. He lastly prayed for dismissal of the instant criminal appeal.

8. We have given due consideration to the arguments advanced by learned counsel for parties and have minutely examined the material made available on the record.

9. The careful assessment of the material brought on record is entailing that all the witnesses tried to support the case of prosecution but their evidence when scrutinized deeply, was found coupled with material improbabilities. For instance, the complainant in his cross-examination deposed that entry No.23 was written by WHC, while the mashir deposed that it was kept by WPC. Furthermore, the complainant deposed that HC Khadim Hussain arrested accused whose hands were tied with towel by him, but the mashir has contradicted this version by deposing that they all police party arrested accused and he applied handcuffs to accused. The complainant further deposed that memo of arrest and recovery was prepared by WPC and he himself admitted that it is not mentioned in the FIR that WPC was available with them, while the mashir deposed that memo of arrest and recovery was prepared by SIP on clip board. In addition to this, the mashirnama of arrest and recovery as well as the FIR speak about recovery of Charas in shape of two slabs but the evidence of the complainant and his mashir is totally silent about it. Further, the investigation officer in his cross-examination deposed that WPC Jalal authored mashirnama of inspection of place of incident while the mashir deposed that memo of inspection of place of vardat was written by WHC and that the memo of vardat itself does not speak about availability of WPC Jalal or WHC with them during inspection of place of vardat.

10. As per evidence of investigating officer/SIP Rano Khan Mahar, WPC Fida Hussain recorded entry in daily diary about receipt of custody of accused, case property and FIR from complainant SIP Abdul Sattar, however, the prosecution has also failed to examine said WPC Fida Hussain which also creates serious doubt. Moreover, the alleged contraband material was dispatched to the laboratory two days after its recovery but no explanation whatsoever has been furnished by the prosecution that where it was kept for such intervening period which obviously leads to an adverse inference against the prosecution about the safe custody of the Charas. All these improbabilities in the case have rendered the entire claim of the police party to be highly doubtful. It is settled principle of law that when the chain of custody is broken, the Report of the Chemical Examiner loses its sanctity and cannot be relied upon safely to convict an accused. Reliance is placed on case of the State v. Imam Bakhsh (2018 SCMR 2039).

11. Recently the Honourable Supreme Court of Pakistan in the case of Qaiser and another v. The State (2022 SCMR 1641), has observed that "In absence of establishing the safe custody and safe transmission, the element of tempering cannot be excluded in this case. The chain of custody of sample parcels begins from the recovery of the narcotics by the police including the separation of representative samples of the recovered narcotics, their dispatch to the Malkhana and further dispatch to the testing laboratory. The said chain of custody and transmission was pivotal as the entire construct of the Act 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001 (Rules 2001), rests upon the report of the analyst. It is prosecutions bounded duty that such chain of custody must be safe and secure because the report of chemical examiner enjoined critical importance under the Act 1997, and the chain of custody ensure the reaching of correct representative samples to the office of chemical examiner. Any break in the chain of custody i.e. the safe custody or safe transmission of the representative samples, makes the report of chemical examiner worthless and un-reliable for justifying conviction of the accused. Such lapse on the part of the prosecution would cast doubt and would vitiate the conclusiveness and reliability of the report of chemical examiner. Reliance can be made upon the judgments rendered by three members benches of this court i.e. Ikramulah v. The State (2015 SCMR 1002), The State v. Imam Bakhsh (2018 SCMR 2039), Abdul Ghani v. The State (2019 SCMR 608), Kamran Shah v. The State (2019 SCMR 1217), Mst. Razia Sultana v. The State (2019 SCMR 1300), Faizan Ali v. The State (2019 SCMR 1649), Zahir Shah alias Shat v. State through AG KPK (2019 SCMR 2004), Haji Nawaz v. The State (2020 SCMR 687), Qaiser Khan v. The State (2021 SCMR 363), Mst. Sakina Ramzan v. The State (2021 SCMR 451), Zubair Khan v. The State (2021 SCMR 492), Gulzar v. The State (2021 SCMR 380)."

2023 M L D 1845

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto, J

QADIR BUX BULEDI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-49 of 2020, decided on 19th September, 2022.

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

----Ss. 302(b), 311, 324 & 34---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged that they in furtherance of their common intention committed murder of the deceased and caused injuries to a female by means of hatchet blows and throttling on the allegation of siyahkari---Female was an injured witness, she was declared hostile by the prosecution; but Trial Court wrongly relied upon her evidence---According to the evidence of Investigating Officer, he along with subordinate staff had proceeded to the place of incident/house of the accused on spy information, where he found accused armed with hatchet, but he did not see the accused while causing hatchet blows to deceased---Head Constable was also not eye-witness of the incident---Fate of the accused hinged upon the testimony of said Police Officials alone because injured was declared hostile---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed accordingly.

Muhammad Asif v. The State 2017 SCMR 486; Nazir Ahmad v. The State 2018 SCMR 787 and Wajahat v. Gul Daraz and another 2019 SCMR 1451 ref.

Saifullah v. The State 1992 MLD 984; Saeed Ahmed v. The State 2015 SCMR 710; Arshad Mehmood v. The State 2005 SCMR 1524; Saeed Ahmed v. The State 2015 SCMR 710; Arshad Mehmood v. The State 2005 SCMR 1524; Nasrullah alias Nasro v. The State 2017 SCMR 724; Asad Khan v. The State PLD 2017 SC 681 and Wajahat v. Gul Daras and others 2019 SCMR 1451 rel.

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

----Ss. 302(b), 311, 324 & 34---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of hatchet on the pointation of accused---Safe custody of the weapon of offence---Scope---Accused were charged that they in furtherance of their common intention committed murder of the deceased and caused injuries to a female by means of hatchet blows and throttling on the allegation of siyahkari---During investigation blood-stained hatchet was recovered from accused on his pointation and it was sent to the Chemical Examiner for analysis and report---Positive report was received and it was produced before the Trial Court---Record showed that a Police Constable had taken the hatchet to the Chemical Examiner---Said witness had not been examined to prove the safe custody of the hatchet at the Malkhana of the police station and its safe transmission to the Chemical Examiner---In such state of affairs, the prosecution failed to establish the recovery of the hatchet at trial---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed accordingly.

Kamal Din v. The State 2018 SCMR 577 rel.

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

----Ss. 302(b), 311, 324 & 34---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Co-accused was acquitted on same set of evidence---Relevance---Accused were charged that they in furtherance of their common intention committed murder of the deceased and caused injuries to a female by means of hatchet blows and throttling on the allegation of siyahkari---Record showed that the co-accused had been acquitted by the trial Court, though he was armed with hatchet at the time of incident---Trial Court had failed to assign cogent reasons for convicting the accused on same set of evidence---If a witness was found lying in respect of a particular matter regarding the same incident, rest of his/her statement regarding the same incident would not be believed, as criminal jurisprudence rested on the principle falsus in uno falsus in omnibus---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed accordingly.

Notice to Police Constable Khizar Hayat son of Hadait Ullah on account of his false statement: In the matter of PLD 2019 SC 527 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there should be many circumstances creating doubt in the prosecution case---If there is single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused, then accused would be entitled for benefit of such doubt, not as a matter of grace and concession, but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Mohammad Afzal Jagirani for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

2023 M L D 1864

[Sindh]

Before Irshad Ali Shah, J

JAVED SHAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 701, Criminal Jail Appeals Nos. 697 of 2021 and 20 of 2022, decided on 1st December, 2022.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Inconsistency between evidence of Investigating Officer and three prosecution witnesses with regard to the arrest of accused---Accused/wife of deceased was charged for committing murder of her husband/brother of the complainant in collusion with other accused by administering some intoxicant substance to him---Record showed that evidence of a witness was only to the extent that he was intimated about the death of the deceased by the other witness, who happened to be son of the deceased---Evidence of the complainant and a witness, prima facie, suggested that they were not eye-witnesses to the incident as such their evidence could hardly lend support to the case of prosecution---Investigating Officer stated that on 14.03.2018, he apprehended accused/wife of the deceased---However, as per other witnesses, said accused was apprehended on 13.03.2018---No one knew what happened in between---However, inconsistency between evidence of Investigating Officer and three prosecution witnesses with regard to the arrest of accused could not be lost sight of---Circumstances established that the prosecution had not been able to prove the involvement of the accused persons in commission of incident beyond shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 39---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Admission of accused before police---Not admissible---Accused/wife of deceased was charged for committing murder of her husband/brother of the complainant in collusion with other accused by administering some intoxicant substance to him---Investigating Officer stated that during course of inquiry, it was disclosed to him by accused/wife of deceased that she and other accused persons had committed the murder of the deceased by strangulating his throat after administering some intoxicant substance to him as she intended to marry the other accused---Surprisingly, on chemical examination, no intoxicant substance was found in viscera's of deceased---If for the sake of arguments, it was believed that such disclosure was actually made by lady accused before the said Investigating Officer, even then same being inadmissible in terms of Art. 39 of Qanun-e-Shahadat, 1984, could not be used as evidence---Circumstances established that the prosecution had not been able to prove the involvement of the accused persons in commission of incident beyond shadow of doubt---Appeal against conviction was allowed accordingly.

(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---Judicial confession, retraction of---Scope---Accused/wife of deceased was charged for committing murder of her husband/brother of the complainant in collusion with other accused by administering some intoxicant substance to him---Investigating Officer stated that he produced lady accused before the Judicial Magistrate who recorded her judicial confession---Such confession was made with a delay of about ten days after her actual arrest---Such delay having not been explained plausibly could not be overlooked---Evidence of Judicial Magistrate, who recorded the judicial confession of lady accused was silent with regard to the actual narration made by her before him---However, as per her judicial confession, it was allegedly stated that she was in love with the other accused; that she left her house with him and was taken back by the deceased to his house; that she intended to marry said accused, therefore, she and other accused persons committed death of the deceased by strangulating his throat after administering some intoxicant substance to him and then gave it cover of dacoity---Nothing in the certificate attached to the judicial confession of lady accused, suggested that it was true and was voluntarily made by her---In that situation, as such the judicial confession, which had also been retracted, could hardly be used against said lady accused or someone else, who had been implicated on basis of such judicial confession---Circumstances established that the prosecution had not been able to prove the involvement of the accused persons in commission of incident beyond shadow of doubt---Appeal against conviction was allowed accordingly.

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

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Defective investigation---Accused/wife of deceased was charged for committing murder of her husband/brother of the complainant in collusion with other accused by administering some intoxicant substance to him---Investigating Officer was fair enough to admit that there was no eye-witness to the incident except lady accused none else was produced by Investigating Officer before Judicial Magistrate for recording their confessional statements---No explanation was offered as to why no other accused was produced for recording their judicial confession---Further, it was admitted by the said Investigating Officer that no finger print marks on cloth piece and pillow cover which allegedly were secured by him during course of investigation were obtained---Such omission too could not be lost sight of---Investigating Officer further admitted that no SIM card was found registered in name of lady accused---If it was so, then she could not be connected with the Call Data Records (CDR) reports allegedly obtained and produced in evidence---Be that as it may, during course of her examination under section 342, Cr.P.C, when asked about her judicial confession, it was stated by said lady accused that it was not read over to her and was obtained by putting her under pressure at the instance of the complainant, who intended to establish an illicit relationship with her and wanted to grab the property of the deceased being his brother---Lady accused examined a witness in her defence, who happened to be son of the deceased, who impliedly declared her to be innocent---In these circumstances, it would be safe to conclude that the prosecution had not been able to prove the involvement of the accused persons in commission of incident beyond shadow of doubt---Appeal against conviction was allowed accordingly.

Dilawar Hussain, K.D. Sangi and Habib-ur-Rehman Jiskani for Appellants.

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

2023 M L D 1892

[Sindh (Larkana Bench)]

Before Shamsuddin Abbasi and Amjad Ali Sahito, JJ

MUHAMMAD NAWAZ alias CHOCHO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-35 along with Criminal Conf. Case

No. D-15 of 2019, decided on 6th December, 2022.

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

----Ss. 302(b), 302(c), 114 & 34---Qatl-i-amd, abettor present when offence was committed, common intention---Appreciation of evidence---Sentence, reduction in---Case of sudden fight without pre-meditation---Conviction and sentence, modification of---Accused was charged that he along with his co-accused committed murder of the father of complainant---Bare perusal of the FIR, the statements made by the eye-witnesses and finding recorded by Trial Court clearly showed that there was no background of any ill-will or bitterness between the parties---Complainant admitted that accused had asked his father as to why he was irrigating his agricultural land---Accused remained at the place of incident for nearly about 40 minutes and he was trying to convince his uncle/deceased that the land belonged to him---Complainant admitted in his evidence that all of a sudden the accused caused sharp side of hatchet blow to his father---On the other hand, Medical Officer deposed that there were injuries on the mid of skull, a bruise on right eye and a bruise on left eye and kind of weapon used was hard and blunt object---In these circumstance, it could safely be said that the prosecution had brought on record reliable evidence to sustain the conviction of the accused---However, as far as the quantum of punishment was concerned, the occurrence took place at the spur of the moment and there was no premeditation on the part of accused---If the accused had a plan to take the life of the deceased, he without wasting 40 minutes at the place of incident would have killed him---Said fact showed that something happened immediately before the occurrence which provoked the accused, to take the life of the deceased who was also his real uncle and aged about 70 years old---Accused had no intention to kill deceased as defined under part (a) of S. 300, P.P.C.---Hence, the sentence under S. 302(b), P.P.C. was not justifiable but the case of accused fell under S. 302(c), P.P.C.---In such circumstances, death sentence was converted into imprisonment for twelve years---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 302(c), 114 & 34---Qatl-i-amd, abettor present when offence was committed, common intention---Appreciation of evidence---Conviction and sentence, modification of---Motive not proved---Accused was charged that he along with his co-accused committed murder of the father of complainant---On the assessment of evidence, it was found that the motive set up by the prosecution was quite vague---Admittedly, no independent witness was brought by prosecution---Not a single word was deposed by any of the witnesses regarding the background of any ill-will or bitterness between the accused and deceased and the incident had erupted all of sudden without any premeditation, whatsoever---Record showed that the accused had caused only a single hatchet below to the deceased but did not repeat the same, hence, absence of repetition of hatchet below by the accused dispelled the premeditation to kill the deceased---Accused had no intention to kill deceased as defined under part (a) of S. 300, P.P.C---Hence, the sentence under S. 302(b), P.P.C. was not justifiable but the case of accused fell under S. 302(c), P.P.C---In such circumstances, death sentence was converted into imprisonment for twelve years---Appeal was dismissed with said modification in sentence.

Amjad Shah v. The State PLD 2017 SC 152; Zeeshan Shani v. The State PLD 2017 SC 165 and Azmat Ullah v. The State 2014 SCMR 1178 rel.

Javed Ahmed Soomro for Appellant.

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

2023 M L D 1924

[Sindh]

Before Muhammad Saleem Jessar, J

SOHAIL KHATTAK---Applicant

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 800 and 821 of 2021, decided on 13th September, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 103---Penal Code (XLV of 1860), Ss. 397, 411 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Robbery and dacoity with attempt to cause death or grievous hurt, dishonestly receiving stolen property and common intention---Bail, grant of---Delayed FIR---Non-holding of identification parade---Effect---Accused persons sought bail after arrest in an FIR lodged under Ss. 397, 411 & 34, P.P.C.---First Information Report was lodged on the next day of the incident against unknown culprits---Identification test of the accused persons through complainant was not held---Holding of identification parade becomes necessary in cases, where names of the culprits are not given in the FIR---Holding of such test is a check against the false implication and it is a good piece of evidence against the genuine culprits, therefore, holding of identification test cannot be dispensed with, simply because of the reason that the person accused of committing such robbery, have subsequently been found in possession of the robbed vehicle---Robbed vehicle was recovered from a thoroughfare---Not a single witness from the public was associated to witness the recovery proceedings, therefore, the provisions of S. 103, Cr.P.C. were not complied with by the police---Accused persons had made out a good prima facie case for their release on bail, as their case was purely covered by subsection (2) to S. 497, Cr.P.C.---Accused persons were admitted to bail, in circumstances.

Muhammad Suleman v. Riasat Ali and another 2002 SCMR 1304 rel.

Muhammad Rafique v. The State 1997 SCMR 412; Muhammad Rehan v. The State 2014 MLD 1317; Abdul Waheed Khokhar v. The State 1999 PCr.LJ 412 and Muhammad Kazim v. The State 2005 PCr.LJ 531 ref.

Ali Haider Zaman for Applicant (in Criminal Bail Application No. 800 of 2021).

Muhammad Ayoub Awan for Applicant (in Criminal Bail Application No. 821 of 2021).

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

Complainant in person.

2023 M L D 1938

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

MAQSOOD and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. S-185 and S-196 of 2021, decided on 15th December, 2022.

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

----Ss. 397 & 337-D---Robbery or dacoity with attempt to cause death or grievous hurt, jaifah---Appreciation of evidence---Benefit of doubt---Accused were charged for causing injuries to the brother of complainant when he restricted them from depriving him from his wallet, cash and other documents---Admittedly, the names of accused persons did not find place under the FIR, nor even colour, character, height as well features of their bodies were given by the complainant---Complainant, as admitted by him before the Trial Court, was not accompanied by injured at the time of alleged offence and whatever he had deposed before the Trial Court was told to him by his injured brother---Though the FIR was delayed for about three days, yet no one was nominated in the FIR---Per available evidence, the accused persons were arrested by the police and at the time of their arrest nothing incriminating was secured from their possession, nor was produced by them during investigation except an offensive weapon from accused---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Kashif Ali and another v. The State 2019 YLR 1573; Ghulam Akbar v. Muhammad Akbar, Director, P.I.D.C., Karachi and 3 others 1969 PCr.LJ 755 and Babar Khan v. The State 2016 SD 691(i) Lahore ref.

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

----Ss. 397 & 337-D---Qanun-e-Shahadat (10 of 1984), Art. 22---Robbery or dacoity with attempt to cause death or grievous hurt, jaifah--- Appreciation of evidence--- Benefit of doubt--- Test identification parade---Infirmities---Accused were charged for causing injuries to the brother of complainant when he restricted them from depriving him from his wallet, cash and other documents---Accused persons were subjected to identification parade with delay of about eleven days of their arrest---Not only the identification parade was conducted by not adopting the guidelines of Supreme Court but even where any witness picked out an accused from dummies line or crowd, even that did not prove that the accused, who was pointed out by witnesses, had committed the guilt or taken part in the commission of offence unless it was corroborated by ocular account or strong circumstantial evidence---Such corroboration was lacking in the present case---Moreover, the delay of eleven days in identification parade of the accused could not be ignored because such delay has been considered to be illegal by the Supreme Court---Further, the injured witness had picked up accused at the time of identification parade to be the person who allegedly fired upon him with pistol, yet that fact was not stated by him in his S. 161, Cr.P.C. statement---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Pervez and others v. The State and others 2007 SCMR 670 and Nazir Ahmed v. Muhammad Iqbal and another 2011 SCMR 527 rel.

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

----Ss. 397 & 337-D---Criminal Procedure Code (V of 1898), S. 342---Robbery or dacoity with attempt to cause death or grievous hurt, jaifah---Appreciation of evidence---Defence plea---Investigating Officer influenced against accused---Accused were charged for causing injuries to the brother of complainant when he restricted them from depriving him from his wallet, cash and other documents---In the present case, the plea taken by accused to the effect that Investigating Officer had been influenced by influential persons of a particular community over money transaction, carried weight and that aspect of the defence theory was not kept in juxtaposition by the Trial Court---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Raza and another v. The State and 2 others PLD 2020

SC 523 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---If a single doubt is created about the guilt of accused, the benefit thereof should go to accused as of right but not as grace or concession.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Ayoub Leghari for Appellants.

Manzoor Hussain Subhopoto for Appellant No. 1.

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

Complainant in person.

2023 M L D 1961

[Sindh]

Before Omar Sial, J

HABIB ULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 345 of 2019, decided on 29th November, 2022.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Not producing incriminating material before the Court---Accused was charged for committing murder of his wife/sister of the complainant by inflicting hammer blows---Record reflected that the case property was not produced in Court---Said lapse on the part of the Investigating Officer was inexcusable---Even then, the Court was not inclined, in the circumstances of the case, to show any leniency to the accused on that count---Non-production of the blood stained bed sheet did not adversely impact the prosecution case as the date, place and time of death of deceased was not in dispute---Hammer, if produced, would have strengthened the prosecution case no doubt, but even if it was not, reasoning to uphold conviction was not based on the hammer---Circumstances established that no reasons were found to interfere with the conviction recorded by the Trial Court---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Circumstantial evidence---Accused was charged for committing murder of his wife/ sister of the complainant by inflicting hammer blows---Circumstantial evidence included testimony of daughter of both the deceased and accused to the effect that her father had brought a hammer home the day her mother was killed---Medical Officer report also suggested that deceased died due to blows from a hard, heavy and blunt substance---Moreover, only the couple and their little children were home that day---Children witnessed the parents fight at night and saw their mother dead in the morning---No evidence was led at trial to show that in the intervening period, somebody else came into the house and killed the deceased---In any case, it was not denied that deceased was hammered to death, what had been contested was that accused was not the one who had killed her with a hammer---Accused had a case to answer when his wife was found murdered in their bedroom, apart from their little children, being the only persons present in the house---Circumstances established that no reasons were found to interfere with the conviction recorded by the Trial Court---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Gender based violence case---Accused was charged for committing murder of his wife/sister of the complainant by inflicting hammer blows---Record showed that it was a gender based violence case and therefore demanded that it be looked at differently---Case demanded that the circumstances surrounding the incident, though not perfectly documented or investigated, should be taken into account---After the prosecution had discharged its initial burden of proof, it was up to accused to come up with a plausible, logical and believable defence---Unfortunately, accused failed to do so---Circumstances established that no reasons were found to interfere with the conviction recorded by the Trial Court---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---Accused was charged for committing murder of his wife/sister of the complainant by inflicting hammer blows---If any doubt in the prosecution case had crept in because of the lapses pointed out by the defence, it was overwhelmingly wiped out when one seen what the accused said in his S. 342, Cr.P.C. statement---Accused lived in his house with his young wife and four small children---Deceased wife was hammered to death in the middle of the night in the bed room they shared---Accused-husband ran away immediately, leaving his four small children behind, in the middle of the night and the children woke up to a mother who had been brutally hammered to death and a father who ran away---Trauma that accused left the little children to deal with all alone was shameful and despicable, to say the least---Accused did not attend the last rites of his wife, in fact, he absconded since that very day for a period of seven years---When asked about his abscondence at trial accused said that he had no knowledge about the case---Said fact was an obvious lie as earlier in his statement accused had already admitted that he knew of the incident and that the reason he did not attend the funeral was because he was afraid that the police would arrest him---While claiming that a false case had been registered against him, accused went on to acknowledge that he had taken no steps to clear his name---As regard why his own daughter would testify against him, accused was of the view that his daughter was influenced by her uncle---Said fact was simply not believable---Accused could also not come up with the explanation as to who had or as a matter of fact would have wanted death of deceased---Man such as the accused could be given no concessions---In particular, concessions that were based on sole technicalities and which did not take into account ground realities---Circumstances established that no reasons were found to interfere with the conviction recorded by the Trial Court---Appeal against conviction was dismissed accordingly.

Habib-ur-Rehman Jiskani for Appellant.

Talib Ali Memon, A.P.G. for the State.

Intikhab Ahmed for the Complainant.

2023 M L D 1993

[Sindh]

Before Omar Sial, J

MUHAMMAD IMRAN alias MANA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 699 of 2019, decided on 29th November, 2022.

(a) 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---Judicial confession, recording of---Infirmities---Accused was charged that he along with his wife committed murder of the father of the complainant---Record showed that the Judicial Magistrate missed out an important fact---Though the police had told the Judicial Magistrate that the accused had been arrested on 15.12.2016, the accused had told the Judicial Magistrate that the dead body was found 12 days after the murder and he was arrested the very next day---Dead body, according to the record, was found on 01.12.2106, which would mean that the accused had been picked up on 02.12.2016 i.e. 13 days before the police showed his arrest and 19 days after his arrest that the confession was recorded---Time line given by the accused reconciled with what Judicial Magistrate had earlier observed i.e. the date of arrest was not borne out from the record---Reason given for the murder by the accused was that the deceased tried to rape his wife---No evidence was collected by the police in that regard---Wife of the accused did not support such stance---Judicial Magistrate also found the alleged confession that the accused took the key of the house with him and throw it in a gutter rather odd and unnatural---Said fact eluded as to why a person would not simply leave the house locking the door rather than take the trouble to find the key of the house and then throw it outside---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed accordingly.

(b) 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---Confession of the accused---Accused was charged that he along with his wife committed murder of the father of the complainant---Prosecution case was that the accused had first thrown chillies in the eyes of the deceased and then done him to death---Confession of the accused did not mention such modus operandi---Neither were chillies found from the place of incident nor did the Medical Officer doing the post-mortem notice any such signs on the body or eyes of the deceased---Medical Officer perhaps did not find any because the body was decomposed but why the police did not find any on the scene of the crime made the genuineness and veracity of the alleged confession doubtful---Laboratory where the carpet and sheet were sent for analysis also did not find the presence of red chillies on those items---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of incriminating material from the spot---Reliance---Accused was charged that he along with his wife committed murder of the father of the complainant---Daily diary entry produced by Investigating Officer showed that on that date, the time not being recorded, he left the Police Station to inspect the place of incident---Investigating Officer made a memo at 11:10 p.m. on the same date in the presence of two witnesses---One bed sheet piece, broken bangles, tissues later found to be sperm laden, cigarettes butts and human hair were found and collected from the spot---Notable that except for a cloth piece and a carpet piece, nothing else was produced at trial, though, the memo of site inspection did not even record that a piece of carpet was seized by Investigating Officer when he inspected the place of incident---Memo of inspection did not mention that a hand written note was also recovered and sealed---If all the articles had been found and sealed, as the memo and witnesses claimed, it was a mystery as to how the other items vanished from the sealed packet and why they were not recorded in the first place---Narration given by the witness to recovery was in complete conflict with what was recorded in the memo of recovery prepared by Investigating Officer---Memo recorded that the items were found in a plastic bag lying in a vacant place outside the house of the accused---Memo did not even record that anything but a plastic shopping bag was found---Thus, it was obvious that the police made up the story regarding recovery of stolen items to falsely strengthen its case---It was absolutely unbelievable that valuables were put in a plastic shopping bag and then kept outside the house of the accused where they remained for a period of 17 days without anybody else seeing them or taking them away---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of mobile phone from the house of accused---Reliance---Accused was charged that he along with his wife committed murder of the father of the complainant---Allegedly, that the accused took the police to a house again from where a mobile phone and a SIM were recovered---According to the prosecution witness the house was of the accused---According to Investigating Officer and the memo he prepared, the house also belonged to the accused---According to the testimony of Investigating Officer at trial, the house was not of the accused, but that of his wife---Allegedly accused again took the police to his house from where a mobile phone belonging to him was recovered, however on said date accused was in judicial custody---Prosecution produced no evidence to show that accused was taken out of judicial custody after obtaining the requisite permission from the Judicial Magistrate and that he had then taken the police for the recovery---It was unbelievable that each time the police went to the house of the accused, they could not in one go effect the entire recovery, which recovery seemed to be spread out over 10 days---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Benefit of doubt---Recovery of a letter from the crime scene---Reliance---Accused was charged that he along with his wife committed murder of the father of the complainant---Record showed that the letter found from the crime scene was sent for analysis together with the samples taken from wife of the accused and the writing matched---However there was no evidence to suggest that wife of accused herself was the person who had given the samples---Writing expert as well as Investigating Officer admitted that no document apart from the questioned document and samples taken dubiously were sent to the examiner for analysis---Prosecution witness, at best, stated that only one letter was found from the scene of the offence, which was admittedly neither listed in any memo nor sealed on the spot---When one letter was found from the scene, then how were three sent for analysis raised further suspicion on the honesty and credibility of the Investigating Officer, who seemed to have made up the paperwork all on his own to falsely strengthen the case---Even the details of the one letter found did not reconcile with the prosecution case or the confession made by accused---Not believable that any such letter was found from the place of the crime nor that wife of accused gave samples of writing which matched the purported letter found---Even if wife of accused did, she was acquitted by the Trial Court---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Call Data Record---Reliance---Accused was charged that he along with his wife committed murder of the father of the complainant---In the present case, there was a vague and convoluted prosecution story that the Call Data Record obtained by the Investigating Officer also supported the prosecution case---Prosecution was completely unable to show as to which entry on the record supported the prosecution case and how---Similarly, neither was the same explained at trial in a manner which one could even understand---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Defective investigation---Scope---Accused was charged that he along with his wife committed murder of the father of the complainant---Record depicted that Investigating Officer was a dishonest and inefficient investigator---As per record, Investigating Officer himself admitted that he was told by two witnesses that a bearded man and a maid would often come to the deceased's house---Although Investigating Officer claimed that he had recorded S. 161, Cr.P.C. statements of both witnesses but neither testified at trial---Bearded man was identified as Mr. "S", the same man who had informed the family of the deceased about his death---Both witnesses apparently also did not disclose that accused would also come to the apartment---Thus, it appeared that absolutely no investigation was done on that lead---Investigating Officer himself admitted that the apartment where the murder occurred was a "huge building" with three gates to it---Investigating Officer further acknowledged that he questioned no resident of the building or a member of the building committee or the watchmen at the gates during his investigation---Not only was the police investigation incomplete, it appeared that evidence was created by the Investigating Officer, indicating dishonesty---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed accordingly.

Nasrullah Malik for Appellant.

Ms. Robina Qadir, D.P.G. for the State.

2023 M L D 2060

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

GHULAM NABI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-53 of 2020, decided on 23rd January, 2023.

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

----Ss. 302(b), 324, 504, 337-H(2), 114, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, rash and negligent act, abettor present when offence was committed, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Accused were charged for committing murder of two sons of the complainant by firing---Prosecution examined two eye-witnesses of the incident viz. complainant and one eye-witness---In the present case two eyewitnesses fully supported the case---Sole evidence of a material witness i.e. an eye-witness is always sufficient to establish guilt of the accused if the same is confidence-inspiring and trustworthy and supported by other independent source of evidence because the law considers quality of evidence and not its quantity to prove the charge---Accused can be convicted if the Court finds the direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring---Moreover, there can be no denial to the legally established principle of law that it is always the direct evidence which is material to decide a fact (charge)---Failure of direct evidence is always sufficient to hold a criminal charge as 'not proved' but where the direct evidence hold the field and stand the test of it being natural and confidence-inspiring then the requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case---In the case in hand, from the oral evidence produced by two eye-witnesses, it had been established that the accused used pistol for murdering deceased, which was further corroborated by recovery of crime empties and blood stained earth from the place of incident and recovery of crime weapon from possession of the accused---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Ayub Masih v. The State PLD 2002 SC 1048; Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Asif v. The State 2017 SCMR 486; Pathan v. The State 2015 SCMR 315; Muhammad Ehsan v. The State 2006 SCMR 1857; Munir Akhtar alias Munir Ahmad v. The State 2021 SCMR 298; Akhmat Sher and others v. The State 2019 SCMR 1365; Muhammad Akbar alias Bhola and others v. The State and others 2019 SCMR 2036 and Mir Muhammad v. The State 1995 SCMR 610 ref.

Muhammad Ehsan v. The State 2006 SCMR 1857; Niaz-Ud-Din v. The State 2011 SCMR 725; Allah Bakhsh v. Shammi and others PLD 1980 SC 225 and Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

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

----Ss. 302(b), 324, 504, 337-H(2), 114, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, rash and negligent act, abettor present when offence was committed, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of crime weapons from the possession of accused persons---Reliance---Accused were charged for committing murder of two sons of the complainant by firing---Prosecution examined Police Official/witness who arrested the accused and recovered pistol used by him in commission of the offence---Said witness fully supported the case of prosecution and deposed that accused persons were arrested tactfully---On their personal search .30 bore T.T pistols were recovered from their fold---On enquiry both accused disclosed the pistols were without license and disclosed their names---Said witness prepared mashirnama of arrest and recovery---Recovered articles were sealed and mashirnama was signed by mashirs---On reaching at police station said witness registered the FIR on behalf of the State---Pistols were examined by the Ballistic Expert and such report was exhibited in evidence---Recovery witness was also cross-examined but nothing favourable to the accused was brought on record by the defence---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324, 504, 337-H(2), 114, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, rash and negligent act, abettor present when offence was committed, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Medical evidence supporting ocular account---Accused were charged for committing murder of two sons of the complainant by firing counsel---Ocular evidence was further supported by the medical evidence---Prosecution in order to prove the medical evidence examined Medical Officer who conducted postmortem of both the deceased---As per his evidence first deceased received 06 firearm injuries, 03 were entry wounds and 03 were exit wounds and as per his opinion, all the injuries were anti-mortem in nature and caused by firearm---On examination of other deceased, Medical Officer found 04 firearm injuries, two were entry wounds and two were exit wounds---As per opinion of Medical Officer, all the injuries were ante-mortem in nature and caused by firearm---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances with the observation that medical evidence was in nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term was used in legal parlance for a piece of evidence which itself had some probative force to connect the accused person with commission of the offence.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence by itself does not throw any light on identity of the offender---Such evidence may confirm the available substantive evidence concerning certain facts including the seat of injury, nature of injury, cause of death, kind of weapon used in the occurrence, duration between the injuries and the death and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with commission of the offence---Medical evidence cannot constitute corroboration for proving involvement of the accused person in commission of the offence, as it does not establish the identity of the accused person.

Yaqoob Shah v. State PLD 1976 SC 53; Machia v. State PLD 1976 SC 695; Muhammad Iqbal v. Abid Hussain 1994 SCMR 1928; Mehmood Ahmad v. State 1995 SCMR 127; Muhammad Sharif v. State 1997 SCMR 866; Dildar Hussain v. Muhammad Afzaal PLD 2004 SC 663; Iftikhar Hussain v. State 2004 SCMR 1185; Sikandar v. State 2006 SCMR 1786; Ghulam Murtaza v. Muhammad Akram 2007 SCMR 1549; Altaf Hussain v. Fakhar Hussain 2008 SCMR 1103 and Hashim Qasim v. State 2017 SCMR 986 rel.

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

----Ss. 302(b), 324, 504, 337-H(2), 114, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, rash and negligent act, abettor present when offence was committed, rioting, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence---Related and interested witnesses---Not consequential---Accused were charged for committing murder of two sons of the complainant by firing---Defence objected that the witnesses were near relatives to the deceased and were interested, therefore their evidence could not be relied upon---Validity---Contention raised had no force as in the matter, as the eye-witnesses had sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence---Both the parties were known to each other as was evident from their evidence and it was a day time incident, so there was no chance of mistaken identity of the accused---Where the witnesses fell within category of natural witnesses and detailed the manner of the incident in a confidence-inspiring manner then only escape available with the accused was that to satisfactorily establish that witnesses were not truthful but "interested" ones---Mere relationship of eyewitnesses with the deceased alone was not enough to discard testimony of the complainant and his witnesses---In the matters of capital punishment, the accused would not stand absolved by making a mere allegation of dispute/enmity but would be required to bring on record evidence that there had been such a dispute/enmity which could be believed to have motivated the "natural witnesses" in involving the innocent at the cost of escape of "real culprits"---No substance has been brought on record by the accused to justify his false implication in this case at the hands of complainant party on account of any previous enmity---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Zulfiqar Ahmed and another v. State 2011 SCMR 492 rel.

(f) Criminal trial---

----Interested witness---Scope---Interested witness is not the one who is relative or friend but is the one who has a motive to falsely implicate an accused.

(g) Criminal trial---

----Minor contradictions---Scope---Where in the evidence prosecution establishes its case beyond reasonable doubt then some minor contradictions, which are always available in each and every case as no one can give evidence like a photograph, are to be ignored.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Irfan Badar Abbasi for Appellant.

Rafique Ahmed K. Abro for the Complainant.

Aitbar Ali Bullo, D.P.G. for the State.

2023 M L D 2098

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD UMAIR alias KABO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeals Nos. 498 and 520 of 2021, decided on 18th November, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Accused were found in possession 108.400 kilograms charas---Prosecution, to prove the recovery of the contraband from the accused persons at the relevant date, time and place, had examined the complainant who was also the Investigating Officer of the case and the mashir of the recovery, who had fully supported the case of the prosecution---Accused persons were identified by the said witnesses to be the same and the case property produced before the Court was also identified by the said witnesses to be the same---Investigating Officer deposed that he conducted the investigation of the case and recorded statements under S. 161, Cr.P.C., deposited the case property in the Malkhana and thereafter sent it for the chemical examination for which he received a positive report---Investigating Officer made entries in the relevant registers which he also exhibited in his evidence---Said witnesses were cross-examined at some length by the defence but no material contradiction in their evidence was found which might suggest any doubt about the recovery of the narcotics---Circumstances established that the prosecution had proved its case against the accused persons beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

Subhanullah v. The State 2022 SCMR 1052; Zafar Khan and another v. The State 2022 SCMR 864; Muhammad Shoaib and another v. The State 2022 SCMR 1006; Haji Nawaz v. The State 2020 SCMR 687; Abdul Basit v. the State and others 2018 SCMR 1425; Abrar Hussain v. The State and another 2017 PCr.LJ 14; Riaz Mian and another v. The State 2014 SCMR 1165; Tariq Pervez v. The State 1995 SCMR 1345; Nazeer Ahmed v. The State PLD 2009 Kar. 191; Agha Qais v. The State 2009 PCr.LJ 1334; Raja Ehtisham Kiyani v. The State 2022 SCMR 1248 and Faisal Shahzad v. The State 2022 SCMR 905 ref.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody of contraband and its safe transmission to laboratory established---Accused were found in possession 108.400 kilograms charas---To prove the safe custody of the contraband and its safe transmission to the chemical laboratory, the prosecution examined incharge of Malkhana who deposed that Investigating Officer handed over to him the case property for depositing into the Malkhana which he had deposited according to Serial No. 38 of Register No. 19---Said witness further stated that the he handed over total case property to the Investigating Officer and a Police Constable for the purpose of depositing it with the Chemical Examiner---Said Police Constable who had brought the property to the laboratory deposed that SHO handed over case property viz. seven sacks duly sealed weighing 250 kilograms charas for depositing the same to the Chemical Examiner---Said witness along with other ANF Staff duly armed left Police Station in the official vehicle under entry No. 3/11.00 am along with case property and reached chemical laboratory where he had deposited the same and obtained acknowledgement from the chemical laboratory---On reaching the police station he handed over the receipt of acknowledgement to the SHO and made his arrival entry being entry No. 4---Said witnesses were cross-examined but nothing favourable to the accused persons had been pointed out by the defence---Circumstances established that the prosecution had proved its case against the accused persons beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

Faisal Shahzad v. The State 2022 SCMR 905 and Ajab Khan v. The State 2022 SCMR 317 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Complainant acting as Investigating Officer---Legality---Accused were found in possession 108.400 kilograms charas---Defence objected that the complainant and the Investigating Officer of the case was the same person therefore his evidence could not be relied upon and its benefit must be given to the accused---Validity---Said contention had no force as there was no prohibition in the law for the Police Officer to investigate the case lodged by him---Even otherwise, mere status of one as an official would not alone prejudice the competence of such witnesses until and unless he was proved to be interested, who had a motive, to falsely implicate an accused or had previous enmity with the person involved---Appeal against conviction was dismissed accordingly.

Zafar v. The State 2008 SCMR 1254; State through Advocate-General Sindh v. Bashir and others PLD 1997 SC 408 and Farooq v. The State 2008 SCMR 970 rel.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics---Appreciation of evidence---Non-association of private persons as recovery witness---Inconsequential---Accused were found in possession 108.400 kilograms charas---Defence objected that despite having prior information no private persons were associated as witness/mashir in the recovery proceeding hence the provision of S. 103, Cr.P.C, was violated by the complainant and the evidence of Police Officials could not be relied upon while awarding the conviction in cases of capital punishment---Validity---Such contention had no force as the reluctance of the general public to become a witness in such cases had become a judicially recognized fact and there was no way out but to consider the statement of the official witnesses as no legal bar or restriction had been imposed---Further in the present case, there was no time to collect independent witnesses---No direct enmity or ill will had been suggested by the defence against the complainant or any of the officials who participated in recovery proceedings during cross-examination and therefore in the circumstances the Police Officials were good witnesses and could be relied upon if their testimony remained un-shattered during their cross-examination---Even otherwise, the provision of S. 25 of the Act, 1997, had provided the exclusion of S. 103, Cr.P.C. during recovery proceedings---Appeal against conviction was dismissed accordingly.

Salah-ud-Din v. The State 2010 SCMR 1962; Shabbir Hussain v. The State 2021 SCMR 198 and Mushtaq Ahmad v. The State and another 2020 SCMR 474 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Recovery of huge quantity of narcotics from drug peddlers---In the present case total amount of recovery made from the accused persons i.e., 250 kgs of charas was sent for chemical examination---Such huge quantity of charas could not be foisted easily on anyone without any enmity or ill-will---Even if there might be enmity or ill-will against a person even then a low quantity of the narcotic substance was sufficient to book a person in the case to teach him a lesson or otherwise---Entire 250 kgs charas was sent for chemical examination and the result of the test was positive---Chemical report had not even been challenged by the defence at the trial---Report reflected that the property was received at the laboratory by the hand of Police Constable and it was seven sealed white gatto (nylon bag) parcels each with one seal---Seals were perfect and as per copy sent---Weight of the parcels was mentioned in the report---Even there was no difference in the weight as stated by the prosecution witness in their evidence and the weight reflected in the Chemical Examiner's report---By the flux of time in the case of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country---If the case stood otherwise proved, the approach of the Court should be dynamic and pragmatic in approaching facts of the case and drawing correct and rational inferences and conclusions while deciding cases of present type---No drug peddler could be acquitted in the narcotics case on technicalities---Circumstances established that the prosecution had proved its case against the accused persons beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

Ghulam Qadir v. The State PLD 2006 SC 61 rel.

Muhammad Hanif Samma for Appellant (in Criminal Appeal No. 498 of 2021).

Arshad Rauf for Appellant (in Criminal Jail Appeal No. 520 of 2021).

Habib Ahmed, Special Prosecutor, ANF for the State

(in both Appeals).

2023 M L D 2130

[Sindh]

Before Irshad Ali Shah, J

MUHAMMAD IMRAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 333 of 2021, decided on 12th October, 2022.

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

----Ss. 302(b) & 397---Qatl-i-amd and robbery or dacoity with attempt to cause death or grievous hurt---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Effect---Accused was charged for committing murder of the mother of complainant by causing her knife injuries and then taking away Rs. 150,000 from her---Complainant stated that in the hospital, his mother was unable to speak and she by way of gesture demanded paper and pen, which was provided to her by him and on it, she wrote the name of the accused with two additional words "Meem" and "Alaf"---To such extent, the complainant was supported by his sister and a witness---Surprisingly, other witness came with a different version---As per said witness, the team of Doctors were present there and they provided pen and paper to the victim, whereupon she wrote the name of the accused with two additional words "Meem" and "Alaf"---However, nothing was found in the evidence of any of the Medical Officer which might suggest that they provided pen and paper to the victim---In order to strengthen the said story, the prosecution examined a witness who stated that on finding a boy coming out of the house of victim, he went inside of her house and found her lying on cot in injured condition and on inquiry she disclosed to him that she had been stabbed by the accused, being her nephew---Said witness took the victim first to hospital "F" and then to hospital "J"---Nothing had been brought on record, which might suggest that victim in first instance was taken to hospital "F"---As per Medical Officer, victim was brought at hospital "J" by complainant which belied the witness that he actually took victim to the hospital---Prosecution had not been able to prove its case against the appellant beyond shadow of reasonable doubt, in circumstances---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 397---Qatl-i-amd and robbery or dacoity with attempt to cause death or grievous hurt---Appreciation of evidence---Benefit of doubt---Delay of five days in recording statement of witness---Effect---Accused was charged for committing murder of the mother of complainant by causing her knife injuries and then taking away Rs. 150,000 from her---Record showed that witness admitted that his 161, Cr.P.C statement was recorded by the police with delay of about 05 days after the FIR---Such delay having not been explained plausibly could not be overlooked which had put cloud of doubt on the version of said witness---Thus, it could be concluded safely that said witness was introduced in investigation by the police at the instance of the complainant subsequently with ulterior motives---Prosecution has not been able to prove its case against the appellant beyond shadow of reasonable doubt, in circumstances---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 397---Qatl-i-amd and robbery or dacoity with attempt to cause death or grievous hurt---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of the mother of complainant by causing her knife injuries and then taking away Rs. 150,000 from her---Slip/chit allegedly written by the victim in the hospital containing the name of the accused had not been subjected to examination through handwriting expert to confirm that it actually was written by the victim---In absence of expert opinion in such respect, it would be hard to conclude that the chit/slip contained the handwriting of victim---Prosecution has not been able to prove its case against the appellant beyond shadow of reasonable doubt, in circumstances---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 397---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd and robbery or dacoity with attempt to cause death or grievous hurt---Appreciation of evidence---Withholding material evidence---Effect---Accused was charged for committing murder of the mother of complainant by causing her knife injuries and then taking away Rs. 150,000 from her---Record showed that Mst. "Z", who actually intimated the police about the incident, which was recorded under Roznamcha at Police Station, had not been examined by the prosecution and there was every possibility that on examination, she would have disclosed the true picture of the incident---Non-examination of said witness could not be lost sight of---On asking Investigating Officer was fair enough to admit that as per charge sheet the slips/chits allegedly written by the victim containing name of accused were handed over by the complainant to ASI and he had also recorded S. 154, Cr.P.C statement of the complainant---Said ASI had not been examined by the prosecution---Non-examination of said witness could not be overlooked---As per Investigating Officer he secured the cell phone of the deceased at the instance of the accused from one Mr. "A"---Said witness too had not been examined by the prosecution---Non-examination of said witness could also not be ignored---Prosecution has not been able to prove its case against the appellant beyond shadow of reasonable doubt, in circumstances---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 397---Qatl-i-amd and robbery or dacoity with attempt to cause death or grievous hurt---Appreciation of evidence---Recovery of cell phone, knife and CCTV photos---Scope---Accused was charged for committing murder of the mother of complainant by causing her knife injuries and then taking away Rs. 150,000 from her---Investigating Officer stated that he secured the blood stained knife at the pointation of the accused---On examination, it was found to be stained with human blood---Nothing on record was available which might suggest that it actually was stained with the blood of the deceased---Even otherwise, the recovery of the knife was made from the house of the complainant, and if it was actually lying at the house, then it ought to have been secured by the police much before its actual recovery at the instance of the accused---Investigating Officer further stated that on investigation he obtained the photos of the accused from CCTV recording---Investigating Officer admitted that face of the accused in those photos of CCTV recording was not clear---No statement of the person, who actually handed over the CCTV photos of the accused to the Investigating Officer, had been recorded, therefore, the accused could hardly be connected with the recovery of cell phone, knife and CCTV photos---Prosecution has not been able to prove its case against the appellant beyond shadow of reasonable doubt, in circumstances--- Appeal against conviction was allowed, in circumstances.

Muhammad Saleem for Appellant.

Khadim Hussain, Additional Prosecutor General Sindh for the State.

Muhammad Bin Abdul Malik for the Complainant.

2023 M L D 11

[Lahore]

Before Shahid Karim and Raheel Kamran, JJ

LAHORE DEVELOPMENT AUTHORITY and another---Appellants

Versus

D.G. KHAN CEMENT COMPANY LIMITED and 2 others---Respondents

I.C.A. No. 8982 of 2022, heard on 24th October, 2022.

Lahore Development Authority Act (XXX of 1975)---

----Ss. 14-A & 13(6)(c)---Intra Court Appeal---Control of master plan---Transfer of land in favour of Lahore Development Authority ('Authority')---Scope---Respondent's predecessor entered into an agreement with the predecessor of appellant-Authority for purchase of plot---Predecessor of respondent agreed to surrender interest to the extent of 1/3 of the entire holding in appellant-Authority's favour as proportionate contribution for roads and open spaces or alternatively it was required to pay compensation at the assessed rate of Land Acquisition Collector---Invoice for the payment of certain amounts was issued and the total demand raised was duly paid by the predecessor of respondent---Respondent purchased the property from its predecessor and applied to the appellant-Authority for an NOC (No Objection Certificate) for placement of its' name in the record---Appellant-Authority did not accede to the request of respondent and raised a demand for ex-post facto approval for regularization of the plot---Respondent filed a writ petition against the demand, which was allowed---Validity---Appellant-Authority had not raised any demand against the predecessor of respondent for a period of eleven years---Appellant-Authority had no jurisdiction to rescind or cancel the agreement to the detriment of respondent or its predecessor---Present case was a case of past and closed transaction which could not be reopened at the whim and discretion of the appellant---Appellant-Authority never challenged the original transaction as being unlawful or ultra vires---Present case was a case of higher demand raised by the appellant-Authority unilaterally---Commercial transactions could not be reopened or rescinded to the detriment of one of the parties simply because the other party was a government department, which had a dominant position---Respondent was only required to make payment in respect of land which was excess land found to be in its possession as a result of demarcation carried out by the appellant---Impugned order was upheld and the appeals were dismissed.

Sahibzada Muzaffar Ali Khan, Ch. Waseem Arif and Javed Razzaq for Appellants.

Imtiaz Rasheed Siddiqui, Shehryar Kasuri, Shazib Masud, Barrister Hamid Azim Leghari and Raza Imtiaz Siddiqui for Respondent-D.G. Khan Cement.

Ahsan Bhoon for Respondent-Tivoli Enterprises.

2023 M L D 28

[Lahore]

Before Sardar Ahmed Naeem and Sardar Muhammad Sarfraz Dogar, JJ

ARIF PERVAIZ---Petitioner

Versus

DIRECTOR GENERAL, NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Writ Petition No. 11945 of 2022, decided on 7th June, 2022.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iii)(iv)(vi)(ix), 9(b) & 25(b)--- Constitution of Pakistan, Art. 199---Constitutional petition--- Suspension of sentence--- Plea bargain---Accused was convicted and sentenced by Accountability Court for commission of offence of assets beyond known sources of income, misuse of authority and cheating members of public at large---Accused sought suspension of sentence on the ground that he had filed application to enter into plea bargain---Validity---Accused after filing appeal against conviction and sentence, lodged an application under S. 25(b) of National Accountability Ordinance, 1999---Along with said application, accused also submitted bank pay order in favor of Chairman NAB of the amount which was determined by Accountability Court as his liability---Finalization of proceedings under plea bargain would require some time on completion whereof petitioner in any case would have to be released---High Court suspended his sentence awarded by Accountability Court---Bail was granted, in circumstances

Manzoor Hussain Shahant v. National Accountability Bureau and another PLD 2008 SC 324 rel.

Ch. Zaheer Abbas for Petitioner.

2023 M L D 34

[Lahore (Multan Bench)]

Before Sohail Nasir, J

MUHAMMAD MUNIR AKHTAR---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary HUD&PHE, Lahore and 5 others---Respondents

Writ Petition No. 19236 of 2021, decided on 2nd February, 2022.

(a) Punjab Procurement Rules, 2014---

----R. 2(h)---Bid security---Scope---Procuring Agency while inviting bids sought bid security @ 5% of estimated cost in the shape of CDR (Call Deposit Receipt)---Petitioner and respondent were the only contestants---Petitioner deposited the CDR while respondent deposited CDR of lesser amount, however, for the rest of amount he had submitted bank guarantee---Tender Opening Committee rejected the respondent's bid---Grievance Redressal Committee accepted the bid of respondent vide impugned order---Validity---Bid security had been defined in R. 2(h) of Punjab Procurement Rules, 2014---Bid security could be Bank guarantee or other form of security submitted by a bidder together with a bid---Word 'or' used before the words 'other form of security' meant that it was within the domain of competent authority either to ask a Bank guarantee or other form of security which certainly included CDR---Attempt was made through unfair means to extend the benefit to respondent by the Grievance Redressal Committee whose bid was rightly rejected by the Tender Opening Committee---Constitutional petition was allowed and the impugned order was set aside.

(b) Punjab Procurement Rules, 2014---

----R. 4---Procurements, principles of---Scope---Transparency is the soul of any procurement process which must be evident from the actions as it also guarantees that the rights of the competitors may not be defeated---Even under R. 4 of Punjab Procurement Rules, 2014, a Procuring Agency, while making any procurement, is bound to ensure that the procurement is made in a fair and transparent manner.

(c) Punjab Procurement Rules, 2014---

----Rr. 12, 25 & 33---Method of advertisement---Bidding documents---Clarification of bids---Scope---Under R. 12 of the Punjab Procurement Rules, 2014, a Procuring Agency shall ensure that the information posted is complete for the purposes for which it has been posted---Under R. 33(1), no bidder shall be allowed to alter or modify his bid after the closing time for the submission of the bids---However, under R. 33(2) there is limited authority available to the Procuring Agency that it may, if necessary after the opening of the bids, seek and accept such clarifications of the bids as do not change the substance of the bid---Words used 'do not change the substance of the bid' have made it clear that the conditions so specified, non-compliance thereof, cannot be compromised---Change, if any to be made, that has to be before opening the bids so that every participant may have a fair opportunity to take benefit thereof, otherwise only that bid shall be accepted that is in accordance with the conditions notified in the advertisements as under R. 55 only that bid shall be accepted that is subject to the Punjab Procurement Rules, 2014.

Rao Muhammad Iqbal for Petitioner.

Abid Hussain Bhutta and Mehr Muhammad Bashir for Respondent No. 6.

Ahmad Nadeem Gehla, Assistant Advocate General for Official Respondents Nos. 1 to 5.

2023 M L D 51

[Lahore]

Before Muhammad Shan Gul, J

Mst. SHARAINI BIBI and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No. 218561 of 2018, heard on 6th May, 2022.

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

----S. 5, Sched.--- Dowry--- Suit for recovery of past/future maintenance, delivery expenses and return of dowry articles---Petitioner/wife alleged that due to the cruelty of respondent/husband she was compelled to leave his place and live with her parents where minor daughter was born---Petitioners' suit was partially decreed entitling wife to receive maintenance for her Iddat period only and delivery expenses, and minor was awarded past and future maintenance allowance since her birth---Petitioner's claim for past maintenance and return of dowry articles was concurrently dismissed in totality---Held, that for proving herself entitled to the recovery of past maintenance, petitioner could not prove the fact that she had been compelled to leave the house of respondent on account of cruelty---While rejecting the petitioner's claim as to return of dowry articles Trial Court observed that since petitioner was twelve siblings, dowry articles could not have been given to her by her parents---Such observation of the Trial Court was questionable/unwarranted and having no basis in law---If Rukhsati took place (and which did take place) then giving of dowry articles was presumed which was also trite and acknowledged---Petitioner had specifically taken the plea about dowry articles and had relied on a list filed along with her plaint pertaining to dowry articles valuing Rs.4,23,526/- to be recovered---Petitioner also appeared as witness and her testimony could not be shattered as such during cross-examination---Appellate court committed the cardinal mistake of basing its decision on a questionable/bald presumption that 'Pathan' families would not give dowry articles to their daughters'---No legal benchmark/yardstick existed which explained that Pathans would not give dowry articles to their daughters---Such was an absolutely irrelevant consideration---Trial Court did not attach any importance to the deposition of petitioner and her father as to purchasing of dowry articles and brushed aside without much ado---High Court partially allowed the Constitutional petition and deemed the question of return of dowry articles pending before Family Court and directed that the same to be decided in view of evidence on record and not on the basis of said presumptions.

Shafique Sultan v. Mst. Asma Firdous and others 2017 SCMR 393; Mst. Arooj Malik and another v. Additional District Judge and others 2017 CLC (Note) 16; Mst. Sahib Noor v. Zafar Iqbal and others 2011 YLR 1268 and M. Jaffar v. Additional District Judge and others 2005 MLD 1069 rel.

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

----Ss. 11 & 17---Presumption of the delivery of dowry articles attached to rukhsati---In an arranged marriage and in line with customs which are deeply rooted and entrenched in the society, parents whether rich or poor always give dowry to their daughters at the time of marriage, so delivery of dowry articles can be presumed if Rukhsati takes place.

M. Jaffar v. Additional District Judge and others 2005 MLD 1069 rel.

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

----S. 17--- Application of Qanun-e-Shahadat, 1984, had been deliberately ousted from the proceedings before Family Court, the principles governing the procedure of proving a fact could be applied while evaluating evidence presented to Family Court.

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

----Art. 112---Judicial notice---Scope---Judicial notice was used by a court when it declared a fact presented as true without a formal presentation of evidence i.e. allowing a fact to be introduced into evidence if the truth of that fact was so notorious/well known, or so authoritatively attested that it cannot reasonably be doubted.

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

----Art. 112---Dowery---Judicial notice as to non-delivery of dowry---Exhaustive provisions as to instances of judicial notice---Other than the facts mentioned in Art. 112, Qanun-e-Shahadat, 1984, no other fact could either be assumed or taken as proven without evidence; let alone be used as a basis for adjudication of rights---Neither the financial status of a girl's parents nor the custom of Pathans regarding dowry is one of such judicially noticeable facts---High Court observed that none of the said facts could either be inferred nor any judgment could have been delivered on the basis of the same.

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

----Ss. 11 & 17---Presumptions as to large family and a Pathan family are gratuitous/legally unwarranted and hence anathema--- No constitutional/statutory dispensation in force recognizes such presumptions to defeat the return of dowry articles---In presence of the fact that Rukhsati took place, the delivery of dowry articles ought to have been presumed as per law.

Ms. Nasreen K. Khattak for Petitioners.

Ch. Muhammad Akmal for Respondents.

2023 M L D 60

[Lahore]

Before Ali Baqar Najafi and Farooq Haider, JJ

BASHARAT ALI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 9474 of 2021, decided on 17th May, 2022.

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

----S. 426---Penal Code (XLV of 1860), Ss. 302(b) & 337-L(2)---Qatl-i-amd---Hurt---Suspension of sentence pending appeal---Scope---Convict sought suspension of execution of his sentence on merits---Convict had caused firearm injuries with .44 rifle at right hand, testes and right thigh of one of the deceased and had also caused firearm injuries at front side of thigh and right knee of an injured person---Ocular account furnished by prosecution comprised of eye-witnesses including injured witnesses had been confirmed by the medical evidence---Opinion of police in favour of the convict was not binding---Opinion of police might had a persuasive value which had become irrelevant when a private complaint had been filed and judicial verdict was recorded by the Trial Court regarding guilt of the convict---No case for suspension of sentence on merits was made out---Application was dismissed.

Nazir Ahmad and another v. The State and others PLD 2014 SC 241 ref.

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

----S. 426---Juvenile Justice System Act (XXII of 2018), S. 18---Suspension of sentence pending appeal---Scope---Convict sought suspension of execution of his sentence on statutory ground of delay in decision of appeal---Convict was tried and convicted as a "juvenile"---Section 6(5) of the Juvenile Justice System Act, 2018, provided for grant of bail on the ground of delay in trial---No such provision was provided in the statute for suspension of execution of sentence of the person convicted by Juvenile Court, during pendency of his appeal---Recourse to S. 426, Cr.P.C. could be made for suspension of execution of sentence in view of S. 18 of the Juvenile Justice System Act, 2018---Under S. 426(1-A)(c), Cr.P.C., if a convict had been sentenced to imprisonment for life or imprisonment exceeding seven years and his appeal had not been decided within a period of two years of his conviction then his request/prayer for suspension of execution of sentence on the ground of delay in decision of appeal could be considered---Since a period of two years had not elapsed in the appeal, therefore, ground of delay in decision of appeal was not available to the convict---Application was dismissed.

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

----S. 426---Juvenile Justice System Act (XXII of 2018), S. 6---Suspension of sentence pending appeal---Release of a juvenile on bail---Scope---Notwithstanding the juvenility of the convict, period of two years for considering statutory ground for suspension of his sentence provided in S. 426(1-A)(c), Cr.P.C., shall be unchanged and the statutory ground for bail of a juvenile during the trial cannot be extended to him after conviction and he will be treated as a convict under the relevant provisions of Code of Criminal Procedure, 1898.

(d) Interpretation of statutes---

----When something has not been provided under the statute then court cannot read the same so as to give a different interpretation.

Deputy Director Finance and Administration FATA through Additional Chief Secretary FATA, Pewhawar and others v. Dr. Lal Marjan and others 2022 SCMR 566 and Munir Hussain and 3 others v. Province of Sindh and others 2022 SCMR 650 rel.

Muhammad Aqeel Wahid Chaudhry for Appellant.

Humayoun Aslam, Deputy Prosecutor General for the State.

2023 M L D 92

[Lahore]

Before Faisal Zaman Khan, J

AZMAT JAHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No. 156059 of 2018, heard on 8th March, 2022.

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

----Ss. 2(d) & 5, Sched.---Recovery of dowry articles of the deceased lady---Petitioner being sister of the deceased filed suit for recovery against the widower of her deceased sister---Locus standi---Petitioner contended that determining factor for invoking the jurisdiction was the subject-matter of the suit and not the party who had brought the lis; that she was the successor of the deceased and was entitled to inherit 1/2 of the share from the property of her deceased sister---Held, that perusal of the Schedule attached to the Family Courts Act, 1964, transpired that it did not empower family court to adjudicate upon a claim of a party qua his/her right of inheritance or tarka---Determination of share in the estate/tarka of deceased or its distribution did not fall within the jurisdiction of the Family Court---Petitioner's suit was not maintainable as she had no locus standi to approach the Family Court---Petitioner needed to approach the Civil Court of competent jurisdiction---Constitutional petition was dismissed accordingly.

Federation of Pakistan v. Public at large PLD 1991 SC 750; Federation of Pakistan v. Public at large PLD 1991 SC 731; Muhammad Javed and another v. Mst. Roshan Jahan PLD 2019 Sindh 1; Muhammad Rafique v. Saima Rafique (Minor) and 2 others 2002 SCMR 1290; Tasawar Hussain v. Mst. Farzana Kausar and others PLD 2015 Lah. 208 and Mst. Saman Naseer v. Additional District Judge, Lahore and others 2020 CLC 549 rel.

Mst. Nasim Sharif v. Imtiaz Ali Khan and 3 others 2006 CLC 1393 and Mst. Musarrat Andleeb v. Additional District Judge, Alipur, District Muzaffargarh and 3 others 2011 CLC 1989 distinguished.

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

----Preamble, Ss. 2(d) & 5---Locus Standi---Exceptions---Jurisdiction of the Family Court was circumscribed and was restricted to the matters mentioned in the Schedule---Family Courts were established for "expeditious settlement" and "disposal of disputes" arising out of "marriage" which were between the "spouses" and the "family affairs" which were outcome of marriage---Two exceptions to the question of locus standi were created in the cases of guardianship in which the paramount consideration was the welfare of minors; and in cases where the parents of a deceased daughter would sought recovery of dowry articles since they were the ones who had given those articles to the deceased.

Khushnood Ahmad for Petitioner.

M. Saim Chaudhry for Respondent No. 3.

2023 M L D 107

[Lahore]

Before Tariq Saleem Sheikh, J

ALI HASSAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 69233/B of 2021, decided on 31st March, 2022.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-F(i), 337-F(v), 337-G, 336, 334 & 279---Ghayr-jaifah-mudihah, ghayr-jaifah-hashimah, ghayr-jaifah-hashimah, itlaf-i-udw, rash driving or riding on a public way---Pre-arrest bail, grant of---Accused was charged for driving improvised vehicle negligently, hitting the son of complainant, as a result, he was grievously injured and his right leg had to be amputated---Petitioner was driving an improvised vehicle to transport a concrete mixer---Victim had got his statement recorded under S. 161, Cr.P.C., to the effect that he was driving it negligently---Inasmuch as an accident took place and victim was injured, S. 337-G, P.P.C., would apply---Offence under S. 337-G, P.P.C., was punishable with arsh or daman specified for the kind of hurt caused and might also be punished with imprisonment of either description for a term which might be extended to five years as ta'zir---Section 337-G, P.P.C., so far as the sentence of imprisonment was concerned---Section 337-G, P.P.C. did not say that the offender would also be liable to imprisonment provided for the hurt caused---Addition of Ss. 334, 336, 337-F(i) & 337-F(v), P.P.C., in the FIR was inapt and unwarranted---Prosecutor contended that the petitioner could not take the benefit of S. 337-G, P.P.C., because his vehicle was improvised and, more importantly, he had no license to drive the same---Such contention deserved a short shrift because the said section did not make any such distinction---Said act might constitute a breach of some other law---If so, the petitioner would face the consequences stipulated in that statute---According to the Sched-II to the Cr.P.C, the offence under S. 337-G, P.P.C., was bailable, therefore, petition was accepted and ad-interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances.

The State v. Taus Khan and 2 others 2001 SCMR 1416; Ravi Kapur v. State of Rajasthan AIR 2012 SC 2986; 2013 SCMR 480; Badshahzada v. The State 1993 PCr.LJ 699; Haris Khan v. The State PLD 1993 Pesh. 146; Muhammad Hanif v. The State 1984 PCr.LJ 746; U.S. v. Wiltberger, 18 U.S. (5 wheat.) 76 (1820); Tuck v. Priester, (1887) 19 Q.B.D. 629, 639 and T.W. Logistics Ltd. v. Essex County Council and another [2021] UKSC 4 rel.

Farhan Tawakkul Virk for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General with Sarfraz, ASI for the State.

2023 M L D 115

[Lahore]

Before Shahid Bilal Hassan, J

AMJAD SAEED and another---Petitioners

Versus

MUHAMMAD SAEED and 2 others---Respondents

Civil Revision No. 2175 of 2012, decided on 24th May, 2022.

(a) Easements Act (V of 1882)---

----S. 15---Accrual of right of easement---Alternate way---Petitioners instituted suit for declaration with permanent and mandatory injunction claiming their easement right of usage of passage, allegedly in their use for last 30/35 years---Suit was resisted by respondents and Trial Court dismissed the suit---Appeal filed by petitioners before Appellate Court was also dismissed---Held, that the petitioners had failed to establish by leading cogent, trustworthy and confidence inspiring evidence that they had been using the path continuously and had been enjoying the right of easement over the same for the last 30/35 years, rather it had surfaced on record that the respondents/defendants demolished the said passage around 25-03-2006, meaning thereby the alleged use of passage by the petitioners /plaintiffs was near about 16 years ,so the petitioners could not claim the accrual of right of easement in their favour, because it was the pre-requisite of law, that the right of passage had to be enjoyed by a person continuously and without any interruption for a period of 20 years, there-after petitioners could claim such right of easement---Right of way through easement did not mature if the right of way was not used for a period of twenty years---One of the petitioners witnesses in the beginning of his deposition had deposed that there was a passage to his land from "M-S" road besides the disputed property---Petitioners had an alternate way and they could not establish their continuous usage of passage for a period of 20 years--- Revision was dismissed, in circumstances.

Haji Abdul Sattar v. Haji Muhammad Bakhsh through Legal Heirs 2017 YLR Note 9; Abdul Khaliq alias Mithoo v. Moulvi Sher Jan and others 2007 SCMR 901 and Hafiz Riaz Ahmad and others v. Khurshed Ahmad and others 2013 MLD 947 rel.

(b) Easements Act (V of 1882)---

----S. 4---Easement, definition of---Essential qualities of easement---Dominant heritage---Dominant owner---Easement is a right which the owner or occupier of certain land possessed, as such for the beneficial enjoyment of that land ,to do so and continue to do something, or to prevent and continue to present something being done, in or upon or in respect of certain other land not his own---Land for the beneficial enjoyment of which the right exists is called the dominant heritage and the owner or occupier thereof the dominant owner, the land on which the liability is imposed is called the servient heritage and the owner or occupier of such land thereof the servient owner---Essential qualities of an easement generally were that (i) it is incorporeal; (ii) it is imposed on corporeal property and not on the owner of it; (iii) it confers no right of share in the profits from such property; (iv) it is imposed for the benefit of corporeal property; and (v) it involves two distinct tenements, the one which enjoys the easement, that is, to which the easement belongs or to which it is attached, called the 'dominant tenement' or 'dominant estate' and the other on which the easement rests or is imposed called 'the servient tenement' or 'servient estate'.

(c) Easements Act (V of 1882)---

----S. 15----Acquisition by prescription---Conditions precedents---Following conditions must be fulfilled for acquisition of a right of easement by prescription; i.e. the right claimed must not be uncertain; the right claimed must have been enjoyed; and it must have been enjoyed (i) peaceably, (ii) openly, (iii) as of right, (iv) as an easement, (v) for twenty years or sixty years, if the right is claimed against government---Out of the last six sub-conditions, (ii) and (iii) are not necessary in the case of easement of the light and air or support---With this exception, all the conditions and sub-conditions must be fulfilled before the right of easement is acquired.

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

----S. 115---Concurrent findings---Revisional jurisdiction of High Court---Concurrent finings of facts cannot be disturbed when the same do not suffer from misreading and non-reading of evidence, howsoever.

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; Muhammad Farid Khan v. Muhammad Ibrahim and others 2017 SCMR 679; Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13 and Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21 rel.

Azmat Ullah Chaudhry for Petitioners.

Salman Mansoor and Ahmed Raza Chattha for Respondents.

2023 M L D 132

[Lahore (Election Tribunal)]

Before Shahid Jamil Khan, J

JAMSHED IQBAL CHEEMA---Appellant

Versus

The RETURNING OFFICER, NA-133 and others---Respondents

Election Appeal No. 07/R of 2021, heard on 5th November, 2021.

Elections Act (XXXIII of 2017)---

----Ss. 62(9)(b) & 63---Candidature, rejection of---Proposer not from the constituency---Effect---Appellant was aggrieved of rejection of his nomination papers to contest election for National Assembly for the reason that his proposer was not from the Constituency in which election was to be held---Validity---Application for substituting of proposer was moved, in captioned appeal, after final date, which was also rejected---Person prepared for contesting election should not be knocked out technically but philosophy and procedure for such purpose, as couched in the provision of law, under Elections Act, 2017, required a candidate to be proposed by a voter existing in Electoral Roll of that constituency---Appellate Tribunal exercised powers under S. 63 of Elections Act, 2017, and could not venture to differently interpret already interpreted provisions by the Supreme Court, as the Tribunal was bound under Art. 189 the Constitution---Appeal was dismissed, in circumstances.

Sharafat Ali and another v. D.R.O. and others 2008 SCMR 539 ref.

Nadeem Shafi v. Tariq Shuja Butt and others PLD 2016 SC 944 and Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood PLD 2007 SC 277 rel.

Mubeen Uddin Qazi assisted by Rana Abdul Shakoor Khan, Rana Mushtaq Ahmad Toor, Chaudhary Tahir Mahmood, Muhammad Azam Chaudhary, Barrister Aon Abbas Sialo, Ahmad Sardar Khan, Syed Hassam Ahmad Gardezi, Khurram Riaz Kahloon, Sohail Anjum Virk and Javed Abbas Sial for Appellant (in Election Appeal No. 07/R of 2021).

Ali Afzal Sahi assisted by Zafar Zulqurnain Sahi and Arsalan Aamir for Appellant (in Election Appeal No.08/R of 2021).

Mian Shabbir Hussain for Appellant (in Election Appeal No.06/R of 2021).

Mohammad Ahmad Qayyum, Chaudhary Muhammad Naseer Kamboh, Shumail Arif, Mahjabeen Khan Abbasi, Abbas Hayat, Rao Hamid Raza, Muhammad Faizan Sadiq, Rizwan Afzal Tarrar for Respondents/Objectors.

Imran Arif Ranjha, Advocate/Legal Advisor, Chaudhary Omer Hayat, Director (Legal), Shahid Iqbal, Zeeshan Nadeem (AROs), Sajid Hussain (EO), Hafiz Adeel Ashraf and Hafiz Muhammad Bilal Azhar (Legal Assistants)

2023 M L D 145

[Lahore]

Before Ch. Muhammad Iqbal, J

ABDUL HAMEED and another---Petitioners

Versus

MUHAMMAD SHAKEEL SHAHID and 7 others---Respondents

Civil Revision No. 14934 of 2022, decided on 11th March, 2022.

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

----Ss. 22 & 42---Oral agreement to sell---Specific performance---Petitioner claimed in plaint that he purchased the suit land and in total consideration of Rs. 12,00,000/- paid Rs.600,000/- through cheque whereas it was decided that the respondent would execute the sale deed after incorporation of inheritance mutation and would receive the remaining amount---Respondent denied execution and stated in his written statement that he received the amount of Rs.600,000/- from the petitioner on account of lease payment as the petitioners were in possession of the suit land since long and were not paying any amount thereagainst---Petitioners' suit was concurrently dismissed---Validity---Petitioners and respondents were admittedly cousins---Petitioners did not produce the cheque and Bank statement in the Court---Documents produced by petitioners could not be relied upon as valid evidence and such documents could not be taken into consideration---Admittedly, petitioners as lessees were cultivating the land owned by the respondents---Petitioner contradicted his own statement in examination-in-chief regarding the convening of Punchayat for resolving the controversy between the parties and regarding the consideration amount in alleged bargain---Petitioner did not prove any offer nor acceptance through any solid/concrete evidence---Petitioners failed to prove the execution of oral agreement to sell and did not mention time/place in the plaint which was deposed by him as witness---Concurrent findings were against the petitioner---Revision petition was dismissed accordingly.

Mst. Hameeda Begum and others v. Mst. Irshad Begum and others 2007 SCMR 996; Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715; Muhammad Riaz and others v. Mst. Badshah Begum and others 2021 SCMR 695; Saddaruddin (since deceased) through LRs. v. Sultan Khan (since deceased) through LRs and others 2021 SCMR 642; Muhammad Shafiq Ullah and others v. Allah Bakhsh (Deceased) through LRs and others 2021 SCMR 763; Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524; Muhammad Miskeen v. District Judge Attock and others 2020 SCMR 406 and Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 rel.

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

----S. 10---Oral Agreement---Mode of proof---Oral agreement to sell was permissible under the law but if its existence/validity was questioned, then it should be proved through cogent/corroborative/ confidence inspiring evidence---Non-mentioning of the details of time, place and witnesses in the plaint was fatal for the suit based on oral agreement to sell---Un-written agreement could only be proved through extra-ordinary / corroborative / convincing / concrete / unimpeachable character of evidence.

Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74 and Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300 rel.

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

----S. 22---Specific relief, nature of---Discretion of Court---Grant of decree in suit for specific performance is within the exclusive discretionary power of the Court which can refuse to grant the relief on the principle of equity even if the suitor has proved the case.

Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 and Muhammad Miskeen v. District Judge Attock and others 2020 SCMR 406 rel.

2023 M L D 175

[Lahore]

Before Asim Hafeez, J

Mst. MUSARRAT---Petitioner

Versus

MUHAMMAD SHAFI and others---Respondents

Civil Revision No. 2439 of 2014, decided on 3rd December, 2021.

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

----Arts. 76, 100, 117 & 118---Limitation Act (IX of 1908), Art. 120---Beneficiary to prove factum of sale---Suit for declaration/permanent injunction---Petitioner/plaintiff claimed that defendant and she were legal heirs of the deceased; that their father was sole owner of the suit property at the time of his death on 04.11.1997 by virtue of sale-deed registered on 13/02/1963; that utilities were registered and bills issued in the name of the deceased; that petitioner along with other heirs of the deceased (respondents) got their names registered in the record of Excise and Taxation department; that respondent fraudulently interpolated his name in the sale deed, evidently transferred/executed in the name of the deceased---Respondent/defendant contended that property in question was originally purchased by him, wherein inadvertently name of his father was mentioned, in the first place, which mistake was corrected by way of incorporation of his name as buyer; that suit was barred by limitationas the sale deed was executed/registered in 1963 which was allegedly challenged in 2000---Trial Court decreed the suit but its judgment was reversed by the Appellate Court---Validity---Three respondents were also the legal heirs of deceased who had not contested claim of the petitioner rather filed conceding written statement---Respondent appearing as witness stated in cross-examination that his name was not mentioned in the sale deed, which fact was identified by his father, who upon reading it said that 'since sale deed was in favour of the respondent, therefore, his name be mentioned'---Whereas, such view was not asserted by respondent in his written statement---Respondent was required to prove that he purchased property, paid consideration and that addition of his name thereat was validly done, but he failed to prove the same---No official witness was produced---No evidence was available that name of petitioner was added, before or after the registration of sale deed---Attested copy of mutation was placed on record, whereas, neither the official record was summoned nor was the procedure for producing secondary evidence adopted---In year 1963, petitioner had only finished his studies and was on job-hunt---Source of income of the respondent at the time of alleged purchase remained unproved and nothing was placed to show possession of alleged consideration amount in the year 1963---Respondent admitted that sale deed remained in possession of his father during his life---Respondent's father had died in 1997 and suit was filed in the year 2000, after gaining knowledge of interpolation in the sale deed---Suit was filed within the period of limitation provided under Art. 120 of Limitation Act, 1908---Revision petition was allowed accordingly.

Muhammad Din and others v. Mst. Naimat Bibi and others 2006 SCMR 586; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Akbar Ali and 4 others v. Ehsan Ellahi PLD 1980 Lah. 145; Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs PLD 2011 SC 657; Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513; Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910; Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 and Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1 rel.

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

----S. 100--­-Alleged benami sale deed in favour of deceased father---Name of the respondent was not mentioned in the deed---Presumption of validity---Presumption of validity of document being 30 years old being rebuttable and not otherwise claimable.

Abdullah Mubarik for Petitioner.

Manzoor Hussain Dogar for Respondents Nos. 1 and 5.

2023 M L D 191

[Lahore]

Before Ch. Muhammad Iqbal, J

Messrs DAIRY CREST FOOD (PRIVATE) LIMITED through Chief Executive---Petitioner

Versus

MUZAMMAL KHAN LODHI---Respondent

Civil Revision No. 28497 of 2022, heard on 20th June, 2022.

(a) Malicious prosecution---

----Scope and remedy---Plaintiff/respondent filed suit for recovery of Rs. 125 million as damages and compensation against the petitioner/defendant in which petitioner filed an application under O. VII, R. 11, C.P.C which was dismissed by Trial Court---Held, that malicious prosecution fell under the law of Torts providing redressal of grievance for those who had been prosecuted " without reasonable cause" and that prosecution was tainted with "malice"---Malicious prosecution is an action instituted with intention to injure body and rights of a person without any probable cause---Person who has been subjected to face legal proceedings instituted against him would naturally be aggrieved by such proceedings as he had to put expenses to defend himself in the civil lis and also had to face agony of the proceedings as well as loss of precious time---If, at the end of lis, such civil litigation against a person failed, then he had remedy to approach Civil Court for grant of compensation in the shape of damage(s) caused to him due to such malicious civil litigation---Suit for recovery of damages on the allegations of malicious civil prosecution filed by the respondent/plaintiff was maintainable---Revision was dismissed, however Trial Court was directed to decide the main lis between the parties strictly in accordance with law on merits expeditiously.

Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Willers v. Joyce and another 2016 SCMR 1841; Amir Hussain Khan v. Ghulam Akbar Khan 1993 MLD 686; Dr. Abdul Qadir Akhund v. Ms. Shahila Perveen 2017 MLD 666 and Niaz and others v. Abdul Sattar and others PLD 2006 SC 432 rel.

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

----O. VII, R. 11---Rejection of plaint---Scope---Plaint could only be rejected for want of jurisdiction for lack of cause of action for being barred by law or due to non-affixation of court-fee---In the present case, suit of the respondent did not suffer from any flaw, the assertion of the respondent required recording of evidence and thus the plaint could not be summarily rejected merely on the whim of the rival party----Revision was dismissed, however Trial Court was directed to decide the main lis between the parties strictly in accordance with law on merits expeditiously.

Ch. Muhammad Javed Arshad for Petitioner.

Najaf Muzzamal Khan for Respondent.

2023 M L D 218

[Lahore (Multan Bench)]

Before Abid Hussain Chattha, J

Mst. FOZIA TASLEEM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, KHANEWAL and 2 others---Respondents

Writ Petition No. 3882 of 2022, decided on 16th May, 2022.

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

----S. 25--- Islamic Law--- Hizanat---Custody of minor---Welfare of minor---Determination---Such is always hard and difficult to establish right of father or mother regarding custody of a child on the touchstone of welfare---Term "welfare" is an overarching concept which includes material, intellectual, moral and spiritual well-being of child---Welfare of a child is to be determined on the basis of evidence on record and circumstances of each case---Prescribed principles of custody (Hizanat) have to be followed yet such principles in favour of father or mother can be deviated in the supreme interest of child measured on the exclusive yardstick of welfare---No absolute right vests with father or mother regarding custody of child---In presence of rival claims, supreme welfare of child is to be determined on the basis of evidence on record and prevalent circumstances of a particular case.

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

----S. 25---Constitution of Pakistan, Art. 199---Constitutional petition---Welfare of minor---Determination---Reluctance to maintain minor---Effect---Petitioner/mother was aggrieved of order passed by Lower Appellate Court handing over custody of minor daughter to respondent/father---Validity---Minor had been raised and brought up since her birth by petitioner/mother---Minor was more than 11 years of age when custody petition was filed by respondent/father---No confidence inspiring evidence was on record to the effect that respondent/father was much disturbed or eager regarding custody of minor---Inability and reluctance of respondent to maintain the minor due to inadequate financial resources and lack of interest were proved---Respondent/father was a labourer who had to go outside his house for work---Indifference of respondent/father in meeting with minor and irregular payment of meager maintenance allowance was established---Petitioner/mother was entitled to custody of minor in supreme interest and welfare of minor---High Court set aside judgment and decree passed by Lower Appellate Court who misread the evidence on record and restored that of Family Court--- Constitutional petition was allowed in circumstances.

Mst. Nighat Firdous v. Khadim Hussain 1998 SCMR 1593; Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821; Shabana Naz v. Muhammad Saleem 2014 SCMR 343; Mehmood Akhtar v. District Judge Attock and 2 others 2004 SCMR 1839 and Gulzar Khan v. Mst. Rahima and 3 others 2020 CLC 1340 rel.

Ch. Imran Khalid Amratsari and Mian Adil Mushtaq for Petitioner.

Muhammad Ghias-ul-Haq Sheikh for Respondent No. 3.

2023 M L D 264

[Lahore]

Before Rasaal Hasan Syed, J

TANVEER AHMED and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, KASUR and others---Respondents

Writ Petition No. 10298 of 2022, decided on 21st February, 2022.

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

----O. IX, R. 7---Limitation Act (IX of 1908), Art. 181---Ex-parte proceeding, setting aside of---Limitation----Petitioners filed suit against respondents, wherein respondents were proceeded against ex parte---Respondents filed an application for setting aside ex parte proceedings, which was allowed---Petitioner filed civil revision before Appellant Court, which was dismissed---Held, that order for proceeding ex parte was passed on 07.12.2018, while the application for setting aside of the same was moved by the respondents on 23.01.2019---Rule 7 of O. IX of the C.P.C contemplates that where the Court adjourns the hearing of the suit ex parte, the defendant appears at or before such hearing and assigns a "good cause" for his previous non-appearance may upon such terms as the Court directs as to cost or otherwise, be heard in answer to the suit as if he has appeared on date fixed for his appearance---Objection as to limitation regarding application to set aside ex parte proceedings was legally unsustainable inasmuch as the application was filed on 07.12.2018 within the time prescribed by Art. 181 of the Limitation Act, 1908 and also before the final hearing of the suit--- Petition was dismissed, in circumstances. Manzoor Ahmad Bhatti, Advocate v. Road Transport Corporation, West Pakistan through Secretary of the Corporation and another PLD 1973 Lah. 659; Police Department through Deputy Inspector General of Police and another v. Javaid Israr and 7 others 1992 SCMR 1009; Farid ud Din Masood v. Air Marshal (Retd.) Muhammad Asghar Khan and 5 others 1993 MLD 227 and Messrs Landhi Industrial Trade Estate Ltd., Karachi v. Government of West Pakistan through Excise and Taxation Officer "N" Division, Karachi 1970 SCMR 251 rel.

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

----O. V, Rr. 15 to 19---Service of summons---Prerequisites---Verified oath of process server---Recording of statement of process server---From the contents of the petition, it appeared that in the main suit respondents were not personally served with any process nor preconditions prescribed by Rr. 17, 18 & 19 of O. V of the C.P.C were fulfilled and in a mechanical way an order for service through publication was issued whereafter the ex parte proceedings order was made against respondents---Without diligent and honest compliance with the prerequisites of O. V, Rr. 15 to 19 of the C.P.C and in the absence of any legally admissible report duly attested by witnesses and verified on oath by the process server and without recording the statement of the process server to verify the manner in which the efforts were made for procuring the personal service or a proper declaration by the Court as to why the service in the ordinary mode and manner could not be effected, the passing of an order of substituted service in a mechanical manner had never been encouraged or considered lawful or effective nor such service could be deemed to be legal for all intents and purpose.

Syed Muhammad Anwar, Advocate v. Sheikh Abdul Haq 1985 SCMR 1228 rel.

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

----O. IX, R. 7---Ex parte proceedings, setting aside of---Decision on merits---Policy of law enjoins avoidance of technicalities while considering an application for setting aside an order for proceeding ex parte; particularly when no material proceedings occurred after the order---Generous consideration is to be extended to afford the parties an opportunity to obtain decision on merits rather than to decline hearing on technical grounds.

Ch. Muhammad Hanif for Petitioners.

2023 M L D 290

[Lahore]

Before Ahmad Nadeem Arshad, J

ABDUL HAMEED and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Civil Revision No. 3650 of 2012, decided on 23rd February, 2022.

Stamp Act (II of 1899)---

----Ss. 27 & 27-A---Stamp duty, assessment of---Rate prevalent on date of presentation of document---Suit was decreed directing the petitioner/plaintiff to pay the requisite stamp duty as per market value of the suit land prevalent at the time of execution of registered sale deed in their favour and to get registered sale deed in their favour within 30 days, otherwise their suit would be deemed to have been dismissed---Petitioner's appeal against the said order was dismissed by the District Court---Petitioners contended that respondent admitted execution of agreement to sell, so the consideration amount was to be considered as Rs. 8,50,000/-; that condition of paying stamp duty as per the rate on the date of execution of formal sale deed was out of the jurisdiction of Trial Court---Validity---Ad-volorem duty is required to be calculated and charged according to the valuation table---All the requisite fees on a written instrument are payable according to the rate prevalent on the date of presentation of the same document---Respondent admitted the execution of the agreement to sell and contested the suit on other grounds---Document presented for registration was required to be stamped as per the stamp duty applicable on such day, when it was presented and it was the duty of the Registration Officer to examine the document in order to determine whether it bears the requisite stamps/stamp duty---Revision petition was dismissed accordingly.

Dy. District Officer (Revenue) Lahore and others v. Raja Muhammad Yousaf and others 2016 SCMR 203 rel.

Ch. Muhammad Afzal for Petitioners.

Nemo for Respondent No. 3.

2023 M L D 316

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

JEHANGIR---Petitioner

Versus

Mst. ANEELA and others---Respondents

Writ Petition No. 2062 of 2015, decided on 6th September, 2022.

Family Courts Act (XXXV of 1964)---

----S. 5---Relief beyond pleadings---Respondent/wife sought dissolution of marriage on the basis of Khula---Trial Court dissolved the marriage subject to return of dower amount received by respondent/wife as Zar-e-Khula to petitioner/husband---Lower Appellate Court modified judgment of Trial Court and set aside condition of payment of Zar-e-Khula---Validity---Pleadings ensured that each side was fully alive to the questions that were likely to be raised---Parties had an opportunity of placing relevant evidence before Court for its consideration---Lower Appellate Court could not exercise discretion to set aside any order which was not before it as a subject matter---Relief sought beyond pleadings or in variance to pleadings, could not be granted---High Court set aside order passed by Lower Appellate Court as the same was illegal and irregular---Constitutional petition was allowed, in circumstances.

Sardar Muhammad Naseem Khan v. Returning Officer, PP-I2 and others 2015 SCMR 1698; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Muhammad Mumtaz Khan and 5 others v. Muhammad Amin 2017 CLC Note 93 and Mohammad Uris v. Zawar Haji and 3 others 2017 CLC 1090 rel.

Tahir Mehmood Abbasi for Petitioner.

2023 M L D 339

[Lahore]

Before Shahid Bilal Hassan, J

DEFENCE HOUSING AUTHORITY through Secretary---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, LAHORE and 7 others---Respondents

Writ Petition No. 17688 of 2021, decided on 24th December, 2021.

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

----S. 47 & O. XXI---Question whether decree was executable---Ex-parte decree to transfer plots in view of 13 files---Objection petition on ground of calling the record and dismissal of execution petition---Objection petition was dismissed by Executing Court and appeal thereagainst was also dismissed by the District Court---Petitioner/ judgment debtor (Defence Housing Society) contended that no details of files were not given in the decree, so the same could not be implemented; that Executing Court, instead of providing details of alleged 13 files, issued direction to the State Bank and decree holders to provide the details of bank accounts of the present petitioner for attachment and submit Fard Taliqa---Held, that in agreement to sell of the predecessor in interest of the respondents/decree-holders, only 13 files had been mentioned without any detail---Details of the subject plots were neither mentioned in the agreement to sell nor in the plaint---Details had also not been furnished by the decree holders along with the execution petition or submitted thereafter---Forcing the present petitioner only on the basis of anonymous specification of plots to transfer in favour of the decree holder, would not appeal to prudent mind---Executing Court had to consider/determine that which plots were agreed to be transferred in favour of the decree holder(s) and whether the decree was executable or not, in the given circumstances--- Constitutional petition was allowed and Executing Court was directed to decide ancillary questions and determine whether the decree was executable or not.

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

----S. 47---Objection petition---Details of the plots in question not mentioned in plaint/decree---Scope---Executing Court could not go behind/beyond the decree, but at the same time all ancillary questions arising out of the decree had to be decided by the Executing Court.

Muhammad Sohail Dar for the Petitioner.

2023 M L D 354

[Lahore]

Before Abid Hussain Chattha, J

Syeda KOSAR PERVEEN---Petitioner

Versus

CHAIRMAN UNION COUNCIL and others---Respondents

Writ Petition No. 240210 of 2018, decided on 11th November, 2022.

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

----S. 7--- Talaq--- Powers of Chairman Union Council--- Scope---Chairman Union Council is only conferred with the power of bringing about reconciliation between the parties and issue a certificate of effectiveness of talaq---Powers are not extended to declare as to whether a talaq has been pronounced validly or otherwise which is a function reserved for a court of competent jurisdiction.

Mst. Saira Shaukat through Special Attorney v. District Collector I.C.T., Islamabad and 2 others 2006 YLR 1753 ref.

Syed Zakir Hussain Shah for Petitioner.

2023 M L D 362

[Lahore]

Before Safdar Saleem Shahid, J

FAISALABAD ELECTRIC SUPPLY COMPANY LTD. (FESCO) through Chief Executive Officer---Appellant

Versus

GALAXY TEXTILE MILLS LIMITED (GTML) through General Manager (Finance)---Respondent

F.A.O. No. 597 of 2014, heard on 17th March, 2022.

(a) Punjab Civil Courts Ordinance (II of 1962)---

----S. 18---Forum of appeal---Determination---Scope---Respondent filed an application under S. 20 of Arbitration Act, 1940---Application was accepted by the Civil Judge---Appeal filed by appellant before the District Judge was returned on the ground that since the subject matter exceeded the pecuniary limits of the Court, therefore, it had no jurisdiction to hear the appeal---Validity---Respondent had not provided any valuation in its application but had claimed an amount to be outstanding against the appellant, which could only be said to be the disputed amount and could not be presumed to be the value of the subject matter---Appellant had rightly approached the District Judge by filing appeal---Impugned order was set aside and the District Judge was directed to decide the appeal on merits.

Muhammad Younas v. Suiya Bibi and another 2003 MLD 168; Nigar Bibi and others v. Salah-ud-Din and others 2012 MLD 604 and Jan Son Construction through Saida Jan v. Government of Khyber Pakhtunkhwa and others 2013 CLC 127 ref.

Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394 rel.

(b) Punjab Civil Courts Ordinance (II of 1962)---

----S. 18---Forum of appeal---Determination---Expression "value of the original suit"---Scope---Forum of appeal is to be determined on the basis of original value of the suit and pecuniary jurisdiction of the District Judge is always to be derived from valuation mentioned in the plaint---Meaning ascribed to the expression "value of original suit" in S. 18(1) of the Punjab Civil Courts Ordinance, 1962, is confined to the valuation given in the plaint.

Sh. Muhammad Ali and Maryam Asad for Appellant.

Barrister Aun Ali Raza for Respondent.

2023 M L D 383

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD SHAFIQ KHAN---Petitioner

Versus

MOHAMMAD WARYAM---Respondent

C. R. No. 1082 of 2016, decided on 21st September, 2022.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Right of pre-emption---Talb-e-Ishhad, making of---Proof---Truthfulness of witnesses---Suit was decreed by Trial court and upheld by Appellate Court in favour of pre-emptor---Validity---Under S. 13(3) of Punjab Pre-emption Act, 1991, much stress was laid down on truthness of witness of Talb-e-Ishhad---In the present case conflicting statements of pre-emptor and his witness were found on record, thus they could not be considered as truthful to place reliance on their testimony in regard to making of Talb-e-Ishhad---Pre-emptor failed to prove due performance of Talb-e-Ishhad under the law---Impugned judgments of the two Courts below were set aside and suit of

pre-emptor was dismissed leaving the parties to bear their own costs.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Dayam Khan and others v. Muslim Khan 2015 SCMR 222; Khan Afsar Khan and others 2015 SCMR 311; Bashrat Ali Khan v. Muhammad Akbar 2017 SCMR 309 and Mst. Bibi Fatima v. Muhammad Sarwar 2022 SCMR 870 ref.

Mst. Zaitoon Begum v. Nazar Hussain and others 2014 SCMR 1469 and Ghullam Murtaza v. Muhammad Rafique and others 2022 SCMR 1220 distinguished.

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

----S. 115---Concurrent findings of courts blow---Interference by High Court in its revisional jurisdiction---Scope---Generally the High Court does not interfere in concurrent findings of courts below unless, there is wrong exercise of jurisdiction clearly tainted with misreading and non-reading of evidence besides patent violation of law floating on its surface--- Court can not shut its eyes and is always under obligation to rectify the error by interference in such like illegal findings.

Ghulam Muhammad and others v. Ghulam Ali 2004 SCMR 1001; Mushtari Khan v. Jehangir Khan 2006 SCMR 1238; Muhammad Nawaz alias Nawaza v. Member Judicial BoR and others 2014 SCMR 914 and Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 ref.

Muhammad Muzammil Qureshi and Anwaar Hussain Janjua for Petitioner.

Nasir Mehmood Chaudhry for Respondent.

2023 M L D 395

[Lahore]

Before Ali Baqar Najafi, J

ALI SHER alias SHEERI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 2 of 2021 in Criminal Appeal No. 917 of 2010, heard on 18th May, 2022.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-A(i), 337-D, 148 & 149---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, jaifah, rioting armed with deadly weapon, unlawful assembly---Compounding of offence---Scope---Parties, during the trial, moved application under S. 345, Cr.P.C., along with compromise deed and stated that they had amicably settled the matter outside the court---None of the legal heirs of the deceased had contested the compromise but prosecutor had raised objection that the compromise could not be effected to the extent of the minors without payment to them of the differential amount between the payable Diyat in the year 2012 and what was payable when the compromise was being effected between the other legal heirs of deceased---Validity---Record showed that one widow and three minors were the surviving legal heirs of the deceased---According to the statement of natural guardian of the minors before the Trial Court, she raised no objection if petitioners/appellants were also acquitted of charges, since she had already received amount of Rs.22,35,500/-in the shape of Defence Saving Certificates as Diyat on behalf of the minors of the deceased in the year 2012---Diyat was not a punishment, its enhancement for the legal heirs was not their legal right when it had already been exercised by them drawing all the amount of Diyat to their share---No new right had accrued to them---Only exception through which a compromise could be recalled was that it was forcefully affected as free consent was the main ingredient of such ground which was apparently missing---Once a compromise always a compromise, therefore, it could not be rescinded by any strange interpretation of law in order to proactively protect the minors since the interest of the minors could not be watched over and above their entitlement regardless of the fact that offence of murder was committed by more than one person and convicted though might have different financial status---In the absence of any documentary evidence to prove the financial status, no such finding could be given---In the present case, the compromise was not a new one but reaffirmation of the old compromise entered with other accused persons, the benefit of which could be extended to the present accused petitioner, therefore, the payment of differential amount to the minor was not legally permissible---Application was accepted as a result of which appeal was allowed and accused were acquitted of the charges levelled against them.

Abdul Ghafoor and 3 others v. The State 1992 SCMR 1218 and Safdar Ali and others v. The State and another PLD 1991 SC 202 rel.

Iftikhar Ahmad Mian for Appellants.

Abdul Samad, Additional Prosecutor General for the State.

2023 M L D 404

[Lahore (Multan Bench)]

Before Muhammad Raza Qureshi, J

MUHAMMAD SIDIQUE---Petitioner

Versus

Syed RIAZ SHAH through LRs and others---Respondents

Civil Revision No. 150 of 2022, heard on 1st July, 2022.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), Ss. 115 & 148---Suit for specific performance of agreement to sell---Balance consideration amount, non-deposit of---Extension in time---Principle---Petitioner/decree-holder was aggrieved of order passed by the two Courts below declining to enlarge time for deposit of balance consideration amount within the time stipulated in decree---Validity---Decree passed in an action of specific performance of an agreement to sell was not final but preliminary in nature---Court passing the decree retained seisin over the lis and had also retained power to enlarge or extend time for payment of purchase price fixed therein---Possibility was that expression of adjudication of a decree in a suit for specific performance of an agreement to sell was conditional and the Court which had granted the decree could retain jurisdiction till fulfillment of such condition including but not limited to extending the time for deposit of balance sale consideration within the period stipulated in the decree under consideration and till the time the condition was complied with within stipulated time, such decree would also be construed as preliminary decree---Petitioner/decree holder despite having knowledge that decree contained a self-operative penal clause yet defaulted in payment of balance sale consideration for more than three and half months and the reasons for such delayed application seeking extension of time was bereft of any lawful justification or reliable substantiation---Petitioner/decree holder could not deposit the amount, due to inadvertent mistake and reason for his ailment throughout remained unsubstantiated---Courts below lawfully declared that petitioner/decree holder did not deserve favorable discretion and had rightly declined his application---High Court in exercise of revisional jurisdiction declined to interfere in orders in question as jurisdiction exercised by Courts below was not tainted with any illegality nor was stained with any material irregularity and the same were free from any jurisdictional or legal flaw, as the relief was equitable and discretionary in nature--- Revision was dismissed in circumstances.

Shabbir Ahmed and another v. Zahoor Bibi and others PLD 2004 SC 790; Muhammad Wahid and another v. Nasarullah and another 2016 SCMR 179; Shah Wali v. Ghulam Din alias Gama and another PLD 1966 SC 983; Muhammad Ismail v. Muhammad Akbar Bhatti and others PLD 1997 Lah. 177; Mst. Naseema Salahuddin and 2 others v. Mst. Daulat Fatima and 4 others PLD 2004 Lah. 103 and Tasneem Ismail and others v. Messers Wafi Associates and others 2007 SCMR 1464 ref.

Mansoor Ahmad Sheikh for Petitioner.

Shah Rasool for Respondents.

2023 M L D 448

[Lahore (Rawalpindi Bench)]

Before Ahmad Nadeem Arshad, J

MALIK KHAN and others---Petitioners

Versus

MEMBER (JUDICIAL-VIII), BOARD OF REVENUE, PUNJAB and others---Respondents

Writ Petition No. 895 of 2016, decided on 8th March, 2022.

Punjab Consolidation of Holdings Ordinance (VI of 1980)---

----Ss. 9 & 10---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Consolidation of holdings---Substitution of findings---Petitioners were aggrieved of order passed by Consolidation Officer which was maintained by Board of Revenue---Validity---Board of Revenue decided matter after embarking upon every aspect of case and had rightly maintained order of Consolidation Officer---Order in question was neither arbitrary nor without jurisdiction nor passed in excess of jurisdiction by Board of Revenue---Petitioners failed to point out any jurisdictional defect/error in order in question---In exercise of its Constitutional Jurisdiction, High Court had only to see as to whether a Tribunal or Court acted without jurisdiction or violated statute or law laid down by the superior Courts---High Court was not called upon to re-appraise the evidence---Constitutional petitions were not to be decided in the manner of appeals---High Court had no jurisdiction to substitute its own findings in place of findings of Tribunals below---Constitutional Jurisdiction was not attracted unless glaring injustice or error of law was pointed out---Constitutional petition against consolidation matter was not maintainable---Mere allocation and adjustments made in the scheme and upheld by the statutory functionaries would not entitle the petitioner to seek a judicial review---Factual controversy could not be resolved by High Court in exercise of its extraordinary Constitutional jurisdiction until and unless there was a deficiency in entitlement of right holder, adjustment or allocation of land in consolidation scheme---Constitutional provisions were not designed to empower High Court to interfere with decision of a Court or Tribunal of inferior jurisdiction merely because in its opinion decision was wrong---High Court declined to interfere in order passed by Board of Revenue---Constitutional petition was dismissed in circumstances.

Muhammad Hayat and others v. Member (Consolidation) Board of Revenue and others 2007 SCMR 1950; Ghulam Qadir v. Member Board of Revenue 1970 SCMR 292; Mst. Ilam Bibi and 8 others v. Member (Consolidation), Board of Revenue, Punjab and another 1982 CLC 2109 and Abdul Ghani v. Board of Revenue, Punjab 1985 CLC 2572 ref.

Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246; Abdul Rahman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Ghulam Qadir v. Member Board of Revenue, West Pakistan, Lahore 1970 SCMR 292; Alam and others v. Member (Consolidation) Board of Revenue and others 1988 SCMR 310; Falak Sher and others v. Sharif and others 1989 SCMR 1096; Allah Rehman and others v. Amtul Qayyum and another 1989 SCMR 1817 and Asad Riaz v. Member Board of Revenue, Punjab, Lahore 1997 SCMR 1611 rel.

Waqar Khalid Khawaja for Petitioners.

Ch. Shams Tabraiz, A.A.G. for Respondents Nos. 1 - 3.

Amjad Bashir Mirza for Respondent No. 4.

2023 M L D 483

[Lahore]

Before Shakil Ahmad, J

IRFAN JAVED and 2 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, TOBA TEK SINGH and 2 others---Respondents

Writ Petition No. 52389 of 2019, heard on 25th April, 2022.

(a) Oaths Act (X of 1873)---

----Ss. 8, 9, 10 & 11---Family Courts Act (XXXV of 1964), S. 17(2)---Power of Attorney Act (VII of 1882), S. 2---Dowry articles, recovery of---Special oath---Suit for recovery was consolidated with two other matters (for recovery of maintenance allowance and custody of minors) pending adjudication before Family Court and in consequences additional issues were framed---During cross-examination, an offer was made by petitioner's counsel qua decision of the matter through special oath on the Holy Quran by petitioner; which offer was not accepted by respondent/wife---Respondent/wife, instead, signified her willingness to state on oath by putting her hands on the Holy Quran and on the heads of her children that her dowry articles were lying at defendant's house, which proposal was accepted by the petitioner's counsel---On the adjourned date petitioner moved an application that he did not instruct his counsel to make offer to respondent/wife for taking her special oath and that such offer was under misconception---Petitioner's application was dismissed and the statement of respondent/wife was recorded under special oath and her suit for recovery of dowry articles was consequently decreed---Petitioner contended that no specific direction was given by him to his counsel for resolution of the controversy qua dowry articles through special oath; that his counsel was not authorized either to make any offer to other side or to accept any such offer; that whole proceedings regarding offer and so-called acceptance by his counsel took place in his absence; and that procedure adopted by learned trial court for taking special oath was against the law---Held, that document of the power of attorney contained the phrase:

---Such vernacular expression beyond an iota of ambiguity evinced the intention of petitioner conferring the power to his counsel for making statement qua decision of matter on oath---Petitioner was bound by an act/undertaking of his counsel for the simple reason that his counsel was holding a valid authority to act on his behalf on the basis of contents of power of attorney executed by him in favour of his counsel---Proceedings carried out by the Judge Family Court were in accordance with the provisions of Ss. 8 to 11 of the Oaths Act, 1873---Any act required/authorized to be done by a party to a suit could be done by his recognized agent provided the act would fall generally within the scope of the latter's authority---Statement of respondent/wife was recorded on special oath in pursuance of an offer that was agreed by counsel for the petitioner which offer when accepted, would become agreement in the nature of contract the nature of contract which was binding on both the parties---Constitutional petition was dismissed accordingly.

Hata v. Samail AIR 1932 Lahore 414; Muhammad Ali v. Major Muhammad Aslam and others PLD 1990 SC 841 and Ahmad Khan and others v. Jewan PLD 2002 SC 655 rel.

Mst. Khairan Bibi v. Mst. Hajran Bibi 2012 YLR 2054 distinguished.

(b) Power of Attorney Act (VII of 1882)---

----S. 2---Contract Act (IX of 1872), Ss. 182 & 238---Contract between an advocate and his client is essentially governed by the general rules of contract as embodied under the various provisions of Contract Act, 1872---Power of attorney should be construed strictly and be interpreted to give only such authority as it confers expressly or by necessary implication.

Sh. Muhammad Fazil v. Abdul Qadir and 7 others 1997 CLC 243 rel.

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

----Preamble & S.17(2)---Decision of the matter through special oath---Scope---Wisdom behind enactment of Family Courts Act, 1964 is a swift/expeditious settlement of family disputes for the simple reason that a family dispute was not limited to the four walls of home between two persons viz., husband and wife, rather it had impact on the souls/minds of all near and dear to the contesting parties and it may disrupt not only the mental fabric of both the parties but also of those who were not even party to it, directly particularly the children and the parents of the parties.

(d) Oaths Act (X of 1873)---

----S. 8---Word "party"---Advocate included under the meaning of "party"---Scope---Word 'party' as hinted in Ss. 8 & 9 of Oaths Act, 1873, included an Advocate of the party and the offer to abide by the special oath under S. 9 may be accepted not by party personally but by a party through an agent.

Haji Dilbar Khan Mahaar, A.A.G. Mewo and another v. Mst. Lal Khatoon PLD 1962 Kar. 162 rel.

(e) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction---Nature and scope---Extraordinary constitutional jurisdiction under the provisions of Art. 199 of the Constitution, 1973, was discretionary/equitable and same could not be extended to a party who did not come before the Court with clean hands---High Court, in exercise of constitutional jurisdiction, had only to see whether the court acted without jurisdiction or had violated the statute/law laid down by the superior courts.

West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement) 2007 SCMR 1318; Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246 and Aamir Latif v. Member (Colony), Board of Revenue, Lahore and 2 others 2005 YLR 1913 rel.

Hafiz Muhammad Ishfaq Gondal for Petitioners.

Malik Muhammad Nadeem for Respondent No. 3.

2023 M L D 511

[Lahore (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

RAB NAWAZ and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 2067 of 2019, decided on 18th October, 2021.

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

----Ss. 12(2), 151, O. IX, Rr. 9, 13, O. X, Rr. 17, 19, 20 & O. XLIII, R. 1(d)---Constitution of Pakistan, Art. 10A---Specific Relief Act (I of 1877), S. 42---Limitation Act (IX of 1908), S. 3---Constitutional petition---Suit for declaration by ancestors of the petitioners was decreed by Civil Court ex-parte against respondent and implemented in the revenue record by attestation of mutations and further partly transferred the land in the name of subsequent purchasers---Respondent filed civil suit against the petitioners after 25 years of the said decree/mutation challenging the said ex-parte decree/mutation; claimed ownership of the said land, which suit was dismissed for non-deposit of process fee by respondent for service of petitioners---Respondent filed application for setting aside ex-parte decree on the ground of lack of knowledge, non-service of summons, violation of O. X of Civil Procedure Code, 1908, which application was dismissed by Civil Court---Respondent filed a revision petition which was accepted by District Court setting aside the ex-parte decree of 1987 on 21.02.2019---Petitioners contended that order was appealable but respondent did not file appeal knowingly as it was time barred and filed revision petition which was not maintainable; that necessary parties were not joined in the application under O. IX, R. 13 of Civil Procedure Code, 1908, although they were made party in the civil suit filed by respondent; that application was filed after 25 years of passing the decree without mentioning any justification---Held, that relevant documents i.e. copy of proceedings of the Court/order sheet with present petition were based on the basic proceedings of the trial Court but the petitioners had not annexed the relevant documents---Such documents were necessary to be examined to see the nature of the original suit, how it proceeded and specially to see the point of limitation---Even if the respondent was proceeded against ex-parte the Court was bound to see about the maintainability of the suit and that whether the claim of the plaintiff was proved---Petitioners were claiming that they had the possession of the property under the sale agreement but no revenue record was tendered in the Court regarding the same---Procedure required for proceeding ex-parte against any person had not been carefully adopted by the Trial Court---High Court observed that provisions of O. X of Civil Procedure Code, 1908 were not carefully examined by the Trial Court---Trial Court had to apply the proper law and to see whether summons issued by the Court had been properly, correctly and legally effected upon the person to whom those had been sent---Respondent was seriously prejudiced by the act of the court and court should have considered said fact while dealing with the application filed under O. IX, R. 13 of Civil Procedure Code, 1908---Matters should be decided on merits and no one should be condemned unheard---Technicalities should not be hurdle in the way of justice---No example or the precedents existed that a revision petition could be converted into appeal and appeal could be converted into revision---Limitation period was not applicable to the illegal order of the Court because when initial order was void and against the mandatory provision of law, then subsequent superstructure could not stand---Constitutional petition was dismissed accordingly.

Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859 and Muhammad Ramzan v. Fatima and 30 others PLD 2004 Lah. 17 rel.

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

----Ss. 9 & 42---Primary duty of the Court was that when suit was instituted/entrusted to the court, the court should examine the suit, its form and make its opinion regarding maintainability of the same---Suit for declaration where oral agreement to sell is claimed, could not be entertained as an ordinary suit---Requirements of settlement of agreement to sell, the payment of consideration amount must be mentioned in the suit---Possession if claimed, also be mentioned in detail that how, when and in whose presence it was given and why it was not incorporated in revenue record, if the same was not mentioned there---Suit for agreement to sell without prayer of possession, was not maintainable under the law.

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

----O. IX, Rr. 9 & 13---Only on the basis of ex-parte proceedings, a suit cannot be decreed when it does not fulfill the other legal requirements.

(d) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S. 151---Conversion of proceedings---Under O. IX, R. 13, C.P.C., as per law can be converted into application under S. 12(2), C.P.C. and under Constitutional jurisdiction of High Court.

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

----S. 3---Limitation period against illegal/void order against illegal order there is no limitation and time will not run against a void order.

Muhammad Hussain and 2 others v. Mst. Zarina Akbar and 6 others 2017 CLC 1426 rel.

Sardar Muhammad Hussain for Petitioners.

Murad Ali Malik and Mian Muhammad Shahid Akhtar for Respondent No. 2.

2023 M L D 525

[Lahore (Rawalpindi Bench)]

Before Ahmad Nadeem Arshad and Ch. Muhammad Masood Jahangir, JJ

CHIEF EDITOR MUHAMMAD RIAZ ANJUM and others---Appellants

Versus

Dr. MOHAMMAD SHAHBAZ---Respondent

Regular First Appeal No. 140 of 2012, heard on 19th May, 2022.

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

----S. 3---Defamation---Libel and slander---Scope---Defamation is publication of statement which reflects on a person's reputation and tends to lower him in the estimation of right-thinking members of the society generally or tends to make them shun or avoid him---Defamation takes forum of two separate torts i.e. libel and slander---Libel is actionable per se and injury to reputation is presumed---Whether a case is one of libel or slander, three elements must be proved by claimant: (a) the imputation must be defamatory; (b) it must identify or refer to the claimant; (c) it must be published/communicated to at least one person other than the claimant.

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

----Ss. 3, 8 & 9---Suit for defamation---Recovery of damages---Magnitude of suffering---Determination---Statutory notice, issuance of---Proof---Appellants/defendants were aggrieved of judgment and decree passed against them by Trial Court for publishing derogatory words against respondent/plaintiff in their newspaper---Validity---No yardstick existed to gage such damages in monitory terms---While assessing damages on account of such inconvenience, Court was to apply a rule of thumb by exercising its inherent jurisdiction for granting general damages on a case to case basis, whereas, special damages were defined as the actual but not necessarily the result of injury complained of---While awarding special damages, it was to be kept in mind that the person claiming special damages had to prove each item of loss with reference to evidence brought on record---Such determination also included out of pocket expenses and loss of earnings incurred down to the date of trial and was generally capable of substantially exact calculation---Burden in such situation, like in all cases, was on the shoulder of respondent/plaintiff to prove magnitude of such suffering---Before initiating proceedings one had to give fourteen days' notice under S. 8 of Defamation Ordinance, 2002, to the wrong doer within two months of publication of defamatory material or its knowledge---If there was no response by the other side, then suit for defamation could be filed under the law---Respondent/plaintiff sent notice to appellants / defendants but they did not receive it personally---Statement of postman was on record; copy of legal notice, and original receipts of registered post which proved that respondent/plaintiff had fulfilled requirement of S. 8 of Defamation Ordinance, 2002---High Court declined to interfere in judgment and decree passed by Trial Court and suit of respondent/plaintiff was right decreed in his favour by properly appreciating evidence and record---Appellants/defendants failed to point out any mis-reading and non-reading of evidence or record and judgment/decree was well reasoned and not open to any exception or interference by High Court---Appeal was dismissed accordingly.

Munawar Ahmed, Chief Editor Daily Sama and another v. Muhammad Ashraf and others PLD 2021 SC 564; Liberty Papers Ltd. and others v. Human Rights Commission of Pakistan PLD 2015 SC 42; Zafar Hijazi, Chief Editor, Daily Muhasib Abbottabad and 4 others v. Muhammad Ayaz Mushwani 2020 CLC 618 and Said Rasool v. Dr. Hamayun Khan and 4 others 2014 MLD 1199 rel.

Ch. Muhammad Zubair for Appellants along with Appellant.

Respondent in person along with Sikandar Ali and Ch. Zaheer Hussain Minhas for Respondent.

2023 M L D 541

[Lahore (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

JIND WADA and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 7450 of 2016, heard on 21st September, 2021.

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

----S. 151 & O. XXIII, R. 1---Restoration of suit---Suit for declaration was instituted by the petitioners claiming that they were owners of the agricultural land on ground of inheritance; that registered sale-deed in favour of respondent/defendant was fictitious, forged, fraudulent, illegal; and that mutation sanctioned on basis of the said deed was also illegal---Petitioners made statement in the Trial Court that since duplicate of lost Part Sarkar had been allowed, so, there was no need for the present suit; and that and in case of emergence of the need, the suit would be filed again---Trial Court, on basis of such statement, dismissed the suit as withdrawn---Petitioners filed application under S. 151 of C.P.C., asserting that some other property was also the part of the claim; that their suit dismissed as withdrawn be restored; and that regarding remaining claim, the decision should be made upon merit---Said application was concurrently dismissed---Held, that necessary requirement was that notice be given to other party as to see whether the application of withdrawal of suit would fall within the domain of R. 1 of the O. XXIII, C.P.C.---Merely recording of statement of plaintiff allowing withdrawal of suit with permission to file fresh suit on the basis of same cause of action on payment of cost was not sufficient---No application was filed by the petitioner for withdrawal of the suit---Order sheet annexed with the petition reflected that no person from the defendant side was present on that date of recording statement---Respondent had joined the proceedings of the suit, filed his written statement and was present on all the previous dates---Neither the Court issued any notice to the respondent, nor mentioned regarding his presence in the order sheet---Permission for filing fresh suit could not be given under such circumstances---Petitioner did not claim that the statement was made due to some mistake or because of some coercion or any other technical reason---Application of S. 151, C.P.C. was alien to the proposition of petitioners' case---Constitutional petition was dismissed accordingly.

Mrs. Afroz Shah and others v. Sabir Qureshi and others PLD 2010 SC 913 and Doctor Raza Muhammad Khan v. Principal, Ayub Medical College, Abbottabad and 3 others 2004 CLC 1511 rel.

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

----O. XXIII, R. 1---Expression "on such terms as it thinks fit" means an order after affording opportunity of hearing to the other party which is going to be effected by such permission of withdrawal of the suit---Accordingly the permission shall be contingent on such terms as the Court thinks fit as a natural corollary.

Abdul Malik v. Muhammad Urfan and another 1989

CLC 2363 rel.

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

----O. XXIII, R. 1---Conditional withdrawal of the suit---Scope---Suit could be withdrawn by the plaintiff conditionally or unconditionally---If the petitioner wanted to withdraw the suit conditionally on the basis of some reason for filing the fresh suit, then the petitioner would be bound to specifically mention that defect in the earlier suit for which he was going to withdraw---Simple withdrawal could be allowed by the Court at any stage.

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

----S.151---Inherent powers of the Court, invoking of---Requirements---Court was bound to mention the reasons for invoking the provision of S. 151 of Civil Procedure Code, 1908---Court could only exercise its inherent powers in case when there was no prohibition in law regarding its jurisdiction to exercise the inherent powers---When there was express provision in C.P.C., a Court could not exercise that authority to defeat/circumvent such express provision---Expression "Court" in S. 151 meant each Civil Court in which the lis was pending---Inherit jurisdiction of Court could be invoked when there was no other specific provision to deal with the issue.

Azhar Nadeem Chaudhry for Petitioners.

Muhammad Akmal for Respondents.

2023 M L D 551

[Lahore]

Before Shahid Bilal Hassan, J

NOOR ZAMAN---Petitioner

Versus

Mst. GULLAN through Legal Heirs---Respondent

Civil Revision No. 70819 of 2021, decided on 12th January, 2022.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---High Court (Lahore) Rules and Orders, Vol. 1, Chap. 13, Para. 6---Court may proceed notwithstanding either party fails to produce evidence---Transfer of suit---Failure to issue notice after transfer---Effect---Petitioner assailed the dismissal of her suit for having failed to produce evidence---Validity---Suit was transferred from one court to another under an administrative order but no notice was issued by the transferee court to the parties or their counsel---None of the requirements enunciated in Para 6 of the Chapter 13, Volume I of the High Court (Lahore) Rules and Orders, had been adhered to because nothing was on record to suggest that the court from which the case was transferred ever informed the parties to appear before the transferee court on such and such date, rather case was transferred without fixing a date to appear before the transferee court and no information in that regard was imparted to the parties---Revision petition was allowed and the case was remanded to the Trial Court.

Moon Enterprises CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another 2020 SCMR 300 distinguished.

Azizullah Khan and 4 others v. Arshad Hussain and 2 others PLD 1975 Lah. 879 rel.

Muhammad Akmal Khan for Petitioner.

2023 M L D 559

[Lahore (Multan Bench)]

Before Muhammad Waheed Khan, J

Rao KHALID IQBAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 94 of 2018, decided on 7th December, 2021.

Criminal Procedure Code (V of 1898)---

----S. 540---Qanun-e-Shahadat (10 of 1984), Arts. 132 & 133---Re-summoning of prosecution witnesses for cross-examination---Scope---Accused assailed order passed by Trial Court whereby it had dismissed the application for re-calling the order of closing accused person's right of cross-examination---Cross-examination on the witnesses could not be conducted due to the non-availability of the counsel for the accused and it appeared that the accused was using delaying tactics---Trial Court had asked the accused to cross-examine the witnesses himself but the accused did not have sufficient expertise to cross-examine the witnesses and it could not be considered as substitute to the cross-examination conducted by a defence counsel---High Court observed that it would be in the fitness of things if the defence counsel be given one more opportunity to cross-examine the witnesses---Revision petition was allowed and the Trial Court was directed to give one more chance to the accused to complete the cross-examination.

Abdul Ghafoor v. The State 2011 SCMR 23; Waqar and another v. The State 2013 PCr.LJ 1279; Muhammad Bashir v. Rukhsar and others PLD 2020 SC 334; Abdul Rauf v. The State PLD 2001 Lah. 463 and Khizar Hayat v. Judicial Magistrate and 2 others 2015 PCr.LJ 1566 ref.

Khalid ur Rehman Mayo for Petitioner.

2023 M L D 602

[Lahore]

Before Muzamil Akhtar Shabir, J

SOHAIL SHAHZAD---Petitioner

Versus

CHIEF ELECTION COMMISSION OF PAKISTAN and 4 others---Respondents

Writ Petition No. 75594 of 2021, decided on 2nd December, 2021.

Elections Act (XXXIII of 2017)---

----Ss. 218, 233, 234 & 236---Constitution of Pakistan, Art. 199---Constitutional petition---Code of Conduct, violation of---Alternate and efficacious remedy---Petitioner/candidate sought respondents/rival candidates to be declared ineligible for contesting elections on the plea of violating Code of Conduct of elections---Validity---If petitioner was aggrieved of order of Nominated Officer/DMO under S. 234 of Elections Act, 2017, he was required to file appeal within three days from order in question before Commissioner, whose order was final---Without availing remedy of appeal, petitioner could not circumvent the procedure provided under the law to directly approach High Court through a Constitutional petition---Party complaining of some violation of statues or law had to first avail remedy/particular mechanism for assailing a particular action provided by that statute before applying for any other remedy---High Court declined to interfere in the matter due to availability of alternate remedy to petitioner under relevant election laws, which remedy was provided by special laws on subject and the same could not be circumvented in ordinary circumstances, especially when no extraordinary circumstances were pointed out---Constitutional petition was dismissed, in circumstances.

Muhammad Aslam v. Karachi Development Authority 2004 CLC 308; Saeed Ullah, Line Superintendent v. Chief Executive LESCO Limited and others 2004 SCMR 107; Wajid Rafique Sheikh v. Chamber of Commerce and Industry, Karachi and 19 others 2003 CLD 1293; The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service Sargodha and others PLD 1958 SC 437; Shahida Bibi and others v. Habib Bank Limited and others PLD 2016 SC 995; Zia-ur-Rehman v. Syed Ahmad Hussain and others 2014 SCMR 1015; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Khalil-ur-Rehman and another v. Dr. Manzoor Ahmad and others PLD 2011 SC 512; Hafiz Tasadduq Hussain v. Muhammad Din through legal heirs and others PLD 2011 SC 241; Muhammad Mujtaba Abdullah and another v. Appellate Authority/Additional Sessions Judge, Tehsil Liaqatpur, District Rahim Yar Khan 2016 SCMR 893; Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066; Muhammad Abbasi v. SHO Bhara Kahu and 7 others PLD 2010 SC 969; Pakistan WAPDA Employees Pegham Union v. Member, National Industrial Relation Commission, Islamabad and others 2014 SCMR 1676 and Amir Jamal and others v. Malik Zahoor-ul-Haq and others 2011 SCMR 1023 ref.

Shahbaz Ahmad for Petitioner.

Asad Ali Bajwa, Deputy Attorney General for Pakistan and Ms. Zarish Fatima, Assistant Attorney General for Pakistan.

2023 M L D 629

[Lahore]

Before Muhammad Amjad Rafiq, J

RIASAT ALI and others---Appellants

Versus

The STATE and 3 others---Respondents

Criminal Appeals Nos. 35447, 43773, 47243 and Criminal Revision No. 47259 of 2017, heard on 2nd November, 2021.

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

----Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Presence of eyewitnesses at the spot was doubted---Scope---Accused were charged for committing murder of the brother of the complainant---Prosecution's ocular account led by complainant and an eyewitness, though claimed to have been present at the place of occurrence yet role assigned to the present accused had received a dent when Investigating Officer declared one of the accused innocent, who later died---Prosecution had introduced a story of abetment in the case which was also found false by the Investigating Officer and resultantly the co-accused persons were acquitted---Witnesses stated that they were at a distance of 1-1/4 acre away when they had seen the assailants; they ran toward the deceased but by the time accused fled away from the place of occurrence---Witnesses had admitted that accused were not armed with any firearms; yet they had not chased the assailants in order to apprehend them---Both the witnesses deposed that they did not offer water to the deceased because he immediately succumbed to the injuries, whereas doctor observed probable time between injury and death as 15-30 minutes which belied the contention of the witnesses---Said witnesses further deposed that blood was oozing from the body of the deceased and their clothes and hands were stained with blood but they did not hand over the blood stained clothes to the police---Complainant stated that injured/deceased received 3/4 injuries from the hands of the assailants at bull-cart and after that deceased ran toward northern side in order to save himself, assailants chased the deceased and caused more 20/25 injuries at distance of 02-kanals---Similar was the deposition of eyewitness, however, he stated that assailant inflicted many injuries to the deceased at a distance of 02-kanals---Investigating Officer admitted that during investigation the complainant and the witnesses did not show the proof of their ownership of land where the occurrence took place---Draftsman stated that he did not see any footprints of anybody on points Nos.1, 2 & 3 and witnesses did not tell him about the ownership of Killa near the place of occurrence and there was no Dera shown in the scaled site plan, so that also would go against the prosecution that there was no reason for presence of witnesses at the place of occurrence at the relevant time---Presence of claimed eye witnesses at the time and place of occurrence could not be proved; therefore, their testimony could not be considered as credible or trustworthy---Circumstances established that prosecution had failed to prove its case against the accused persons beyond shadow of reasonable doubts---Appeal against conviction was allowed, in circumstances.

Zulfiqar Ali v. The State 2021 SCMR 1373; Pathan v. The State 2015 SCMR 315 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Unnatural conduct of the witnesses---Scope---Accused were charged for committing murder of the brother of the complainant---Conduct of both the witnesses was highly objectionable that the deceased was being beaten by the accused and they could not intervene the situation and could not reach to the deceased during that time which showed that they were not present at the place of occurrence---Witnesses were shown present at point No.3 as per site plan which was very close to the place of occurrence and they also deposed that they were at a distance of 1-1/4 acre (at one point mentioned as 1-1/4 Killa) so they could not make resistance in order to save the deceased was not appealable in the circumstances---Circumstances established that prosecution had failed to prove its case against the accused persons beyond shadow of reasonable doubts---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused were charged for committing murder of the brother of the complainant---Motive behind the occurrence was alleged a quarrel between the deceased and accused persons took place 5/6 days prior over the dog fight---Motive of quarrel between accused persons and the deceased over dog fight though to some extent was dug out by the Investigating Officer yet its being double edged weapon cut both ways which was not helpful to the prosecution---Circumstances established that prosecution had failed to prove its case against the accused persons beyond shadow of reasonable doubts--- Appeal against conviction was allowed, in circumstances.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 and Tariq v. The State 2017 SCMR 1672 rel.

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

----Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from the accused---Scope---Accused were charged for committing murder of the brother of the complainant---Recovery of hatchets from the accused was of no use as were not blood stained and even both the hatchets were recovered from the house of accused on the same day---One hatchet was shown recovered from co-accused and out of two other hatchets shown present at the place of recovery---One separated from accused as recovered on his lead treating it as weapon of offence was nothing but plantation, so its being joint recovery was also inadmissible---Circumstances established that prosecution had failed to prove its case against the accused persons beyond shadow of reasonable doubts---Appeal against conviction was allowed, in circumstances.

Shahid Hussain alias Multani v. The State and others 2011 SCMR 1673 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---If there is only one doubt, the benefit of the same must go to the accused.

The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

Mehram Ali Bali for Appellant No. 1.

Mohsin Sheikh and Ahmed Raza for Appellant No. 2.

Sana Ullah, Deputy Prosecutor General for the State.

Falak Sher Bakhsh Gill and Qasim Ijaz Sumra for the Complainant.

2023 M L D 654

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD AJMAL (DECEASED) through LRs. and another---Appellants

Versus

ABDUL KHALIQ and others---Respondents

R.S.A. No. 46 of 2013, heard on 7th December, 2021.

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

----S 12---Suit for specific performance of oral contract----Failure to provide essential details with regards to oral sale---Creditability of witnesses---Suit instituted by respondents/plaintiffs/was unanimously decreed by courts below---Appellants asserted that neither any oral sale transaction was settled nor consideration was received, rather false fictitious and concocted story was planted to usurp the valuable land---Validity---Imperative for respondents to specifically provide essential details with regard to oral sale transaction---Time, date, venue and names of witnesses were to be specifically provided so as to prove when, where and before whom alleged oral transaction was effected---Object behind said principle was to subvert the gate of frivolous litigation besides to discourage the production of shocking as well as surprising evidence---Perusal of record affirmed that neither time, venue nor names of witnesses were provided in the plaint which alone was fatal to non-suit the respondents/ plaintiffs---Evidence on the part of plaintiffs was inconsistent, uncertain and variable, which was not enough to prove the alleged oral transaction---Appeal was allowed and suit of respondents/plaintiffs was dismissed, in circumstances.

Binyameen and 3 others v. Ch. Hakim and another 1996 SCMR 336; Muhammad Yaqoob through legal heirs v. Feroze Khan and others 2003 SCMR 41; Ameer v. Shahadat 2005 SCMR 1147; Bashir Ahmad v. Mst. Taja Begum and others PLD 2010 SC 906; Aziz Ahmad and others v. Muhammad Ramzan and others 2011 SCMR 921; Nazir Ahmed and another v. Yousaf PLD 2011 SC 161; Muhammad Nawaz through L.Rs, v. Haji Muhammad Baran Khan 2013 SCMR 1300 and Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74 rel.

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

----Art. 129, illustration (g)---Oral Sale---Proof ---Best witnesses---Held---Vendors, who by transferring their shares had already stood with the plaintiffs could be best persons to support their stance, but they were withheld, therefore under Art. 129, illustration (g) of Qanun-e-Shahadat, 1984, hostile inference was to be drawn that had they been examined, they might have negated stance of plaintiffs/ respondents.

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

----S. 100---Second Appeal---Scope ---Second appeal is restricted, yet could be exercised if findings of fact arrived at by Courts below are found to be based upon misreading, non-reading or misinterpretation of the evidence on record---When only available evidence was not appreciated in its true perspective, rather law on the subject was ignored case of appellants fully fell within exceptions of S. 100, C.P.C.

Akhtar Aziz v. Shabnam Begum 2019 SCMR 524 rel.

Tariq Zulfiqar Ahmad Chaudhary for Appellants.

Ch. Khushi Muhammad Arshad for Respondents Nos. 3 and 4.

2023 M L D 665

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

HAYAT (DECEASED) through L.Rs---Petitioners

Versus

Mst. FATEH KHATOON---Respondent

C. R. No. 495-D of 2013, decided on 15th July, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 115---Suit for declaration and injunction--- Gift mutation--- Minor donor--- Void instrument---Concurrent findings of two Courts below---Respondent/ plaintiff assailed mutation of gift in favour of predecessor-in-interest of petitioners/defendants---Trial Court and Lower Appellate Court decreed the suit and appeal respectively in favour of respondent/plaintiff---Validity---Respondent/plaintiff was minor at the time of attestation of gift mutation, which was sanctioned on the basis of statement of a lady who was neither her guardian nor was authorized to enter into such transaction on behalf of respondent/plaintiff---Such gift mutation was a void instrument---Serious challenge existed to validity of gift mutation, so petitioners/defendants as beneficiaries of the same were obliged to prove its genuineness by first pleading necessary details of gift transaction followed by unimpeachable evidence---Petitioners/ defendants failed to discharge their onus of proof---Petitioners/ defendants failed to point out any misreading and non-reading of evidence---Revisional jurisdiction was not meant to unearth another possible view from the evidence, contra to the findings rendered by two Courts of competent jurisdiction---Revisional jurisdiction was to be exercised, while keeping in view principles enshrined in S. 115, C.P.C.---High Court declined to interfere with concurrent findings as there was no illegality or material irregularity crept up on the record nor was pointed out by petitioners/defendants---Revision was dismissed, in circumstances.

Abdul Karim v. Haji Noor Badshah 2012 SCMR 212; Eada Khan v. Mst. Ghanwar and others 2004 SCMR 1524; Muhammad and 9 others v. Hasham Ali PLD 2003 SC 271 and Mst. Saeeda Akhtar Sadiq through Special Attorney v. Tauqir Akhtar 2006 CLC 1430 ref.

Yar Muhammad Khan and others v. Sajjad Abbas and others 2021 SCMR 1401; Sultan v. Muhammad Hussain 2006 MLD 659; Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Ghulam Qadir and others v. Sh. Abdul Wasdood and others PLD 2016 SC 712; Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21 and Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13 rel.

Malik M. Kabir for Petitioners.

Malik Fateh Khan Awan for Respondent.

2023 M L D 695

[Lahore]

Before Shahid Jamil Khan, J

Doctor YASMIN RASHID---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 2 others---Respondents

W.P. No. 44479 of 2022, heard on 16th July, 2022.

Elections Act (XXXIII of 2017)---

----Ss. 4(3) & 77---Constitution of Pakistan, Art. 199---Constitutional petition---Polling agent, appointment of---Directions---Dispute was with regard to appointing polling agent from outside the constituency where election was to be held---Validity---Direction under S. 4(3) of Elections Act, 2017, could not be taken as an exception---Election Commission had comprehensive powers under the Constitution and the dominant duty of conducting free, fair and transparent election---Election Commission was to act under the law---Instructions under S. 4(3) of Elections Act, 2017, should be issued if circumstances were required at the time of election schedule, or well before the date of election, so that, none of the parties was taken by surprise while making its preparations for the polling day---High Court directed that in case polling agent was from outside the constituency and not a voter, his complete identification and particulars should be provided to presiding officer along with nomination if so required by him---Constitutional petition was allowed accordingly.

Amir Saeed Rawn, Muhammad Azhar Saddique, Anees Ali Hashmi, Barrister Umair Khan Niazi, Ch. Hammad Akram, Rai Shaid Saleem, Moeen Ahmed and Rana Mudassar for Petitioner.

Tahir Mehmood Khokhar, Deputy Attorney General for Pakistan, Shahzad Shaukat, Advocate General Punjab, Mohammad Osman Khan, Assistant Advocate General Punjab and Imran Arif Ranjha, Advocate/Legal Advisor for Election Commission of Pakistan, on Court's call.

Ch. Umar Hayat, Director (Legal) and Hafiz Adeel Ashraf, Legal Assistant for Election Commission of Pakistan.

2023 M L D 739

[Lahore]

Before Ch. Muhammad Iqbal, J

MAHMOODI BEGUM and others---Applicants

Versus

MOHAMMAD EISA and others---Respondents

C.M. No. 2-C of 2018 in R.S.A. No. 19 of 2014, decided on 9th March, 2022.

Limitation Act (IX of 1908)---

----S. 5---Condonation of delay---Grounds---Counsel not available---Not a good ground for condonation of delay---Inalienable obligation of a litigating party is to keep itself abreast of the proceedings of the case and pursue the matter diligently as adjudication of a case cannot be left pending at the whims and caprice of the party to select the suitable time for challenging or pursuing the matter according to their own choice---Moreover, it is requirement of law that if the counsel is not available then the party itself must be present to pursue the case vigilantly and any communication gap between the counsel and the client is not a good ground for condonation of the delay---Adjudicating forum has to administer/regulate proceedings and also to make diligent/bona fide effort to decide the matter within shortest possible span of time whereas the indolent litigant is not entitled for any relief.

Haji Ghulam Sarwar v. Daya Ram 1975 SCMR 179; Munir Hussain v. Changaz Khan and others 2011 SCMR 1424; Sindh Industrial Trading Estates v. West Pakistan Water and Power Development Authority PLD 1991 SC 250; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280; Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587; Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi 2014 SCMR 1594; Hussain Khan v. Mst. Ghanno Bibi (Deceased) and others 1997 CLC 1324; Shabrati v. Shaukat Ali Khan 1997 MLD 2884; Messrs Bengal Corporation and 8 others v. Middle East Bank Ltd. PLD 2000 Kar. 326 and Iqbal Ahmad and others v. Government of Sindh through Secretary and others PLD 2007 Kar. 353 ref.

Mian Shahid Amin for Applicants.

Muhammad Wajih Ullah Khan for Respondent No. 1.

2023 M L D 761

[Lahore]

Before Shahid Bilal Hassan, J

IJAZ AHMAD and others---Appellants

Versus

KHIZAR HAYAT and others---Respondents

R.S.A. No. 123 of 2012, heard on 3rd November, 2021.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Oral gift (Hibba)---Proof---Pleadings---Scope---Suit for declaration and injunction assailing mutations based upon oral gift---Suit and appeal filed by appellants/plaintiffs were dismissed by two Courts below---Validity---Recitals of plaint and written statement had no value in the eyes of law until and unless those were proved by trustworthy, reliable, cogent and confidence inspiring evidence---Mere admission in written statement by owner of land that too in a joint written statement was not sufficient to prove that he gifted out land through mutations in question to respondent/defendant, especially when possession of land was with appellants/plaintiffs and ingredients of Hibba (Gift) were not fulfilled---It was not proved on record as to when, where and in whose presence such offer of making oral Hibba (Gift) was made and was accepted and thereafter possession was delivered to respondent/defendant---It had come on record through Record of Rights that land in possession of tenant was not in pursuance of alleged oral Hibba (Gift)---Respondent/defendant failed to discharge his onus with regard to alleged oral Hibba (Gift) in favour of his predecessor-in-interest, as claimed by him---High Court set aside judgments and decrees passed by two Courts below as the same were contrary to law and failed to determine pivotal issue while applying independent judicious mind and considering law on the subject in the right way---Second appeal was allowed accordingly.

Hakim-Ud-Din through L.Rs. and others v. Faiz Bakhsh and others 2007 SCMR 870 rel.

Sheikh Usman Karim Ud Din for Appellants.

Malik Noor Muhammad Awan for Respondents Nos. 1 and 2.

2023 M L D 797

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

SIKANDAR HAYAT GONDAL and others---Petitioners

Versus

BASHIR AHMAD QURESHI and others---Respondents

C.R. No. 46700 of 2021, heard on 17th October, 2022.

Punjab Tenancy Act (XVI of 1887)---

----S. 77(3)---Specific Relief Act (I of 1877), S. 8---Suit for recovery of possession of property---Civil Court, jurisdiction of---Defendants specifically raised plea that Civil Court lacked jurisdiction to try the suit, which was the core point, but to that effect, relevant issue was not framed---Such question could have been resolved while returning findings on an issue framed but unfortunately it remained unattended before two courts below---Point of jurisdiction depended upon respective pleadings of the parties---Every Court/Tribunal was bound to look into issue relating to bar of its jurisdiction at prior point of time and decide it under the law instead of escaping to answer such important aspect of the case on the mere concession of one or the other party---Forum proceeding with the matter must decide the question of its jurisdiction at the first instance, whereas defect of such type could not be removed by mere conclusion of trial as the same being point of law could even be raised at any subsequent stage---Plaintiffs had themselves claimed that defendants were inducted in subject area as tenants, whereas per maxim "once a tenant was always a tenant", did not oust them from the definition of tenants, especially when default to pay share of produce was one of the provided grounds to evict the tenant(s) by filing ejectment petition before Revenue Authority--- Courts below without consulting or discussing S. 77(3) of the Punjab Tenancy Act, 1887, passed the impugned verdict while merely relying upon oral evidence, whereas entries of Revenue Record showing the petitioners/defendants still to be tenants were not consulted at all---Revision was allowed and the suit was sent back to Trial Court to decide the question regarding jurisdiction.

Muhammad Mansha for Petitioners.

Kashwar Naheed for Respondents Nos. 1 to 11/Plaintiffs.

Sohail Zafar Sipra for Respondents Nos. 12 and 13.

2023 M L D 810

[Lahore]

Before Asim Hafeez, J

AZMAT KAMAL KYANI and others---Petitioners

Versus

REGISTRAR, CO-OPERATIVES SOCIETIES PUNJAB and others---Respondents

W.P. No. 62282 of 2021, decided on 4th March, 2022.

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

----Ss. 4 & 18-A---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Scope---Petitioner sought direction to the respondents to convene a general meeting by calling all members of society in full house meeting so that discriminatory by-laws and amendments be placed before the full house society and further sought a direction restraining the respondents from holding elections of the society on the basis of discriminatory by-laws---Petitioner in connected petition backed the amendments and sought direction to the Registrar, Cooperatives Societies, to issue notification of the petitioners being unopposed members of Managing Committee of the Society---Validity---It was not for the High Court to embark upon an exercise and conduct inquiry qua the validity of the meeting, which was determinable by the Registrar Cooperatives Societies---High Court directed the Registrar Cooperatives Societies to determine and decide qua the validity of the General Meeting wherein the amendments were made.

Khalid Ishaq, Wajahat Ali, Abid Sial, Usman Awan, Faizan Ahmad and Daniyal Akbar for Petitioners.

Zafar Rahim Sukhera, A.A.G.

2023 M L D 820

[Lahore]

Before Shujaat Ali Khan and Jawad Hassan, JJ

MUHAMMAD ALI---Appellant

Versus

PROVINCE OF PUNJAB and others---Respondents

I.C.A. No. 75234 of 2022, decided on 19th January, 2023.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 32 & 34---Punjab Land Revenue Act (XVII of 1967), S. 175-A---Illegal occupation of State land---Village pond---Beneficial for ecosystem---Petitioner challenged the dismissal of his constitutional petition---Validity---Land in question, which was in the possession of the appellant, was state land that was being used as a water pond---Earlier, residents of the same vicinity had agitated the issue about the appellant's illegal occupation of the land in terms of S. 175-A of the Punjab Land Revenue Act, 1967---That resulted in proceedings being initiated against the appellant under Ss. 32 & 34 of the Colonization of the Government Lands (Punjab) Act, 1912---Appellant's appeal was dismissed by the Executive District Officer (Revenue) and his subsequent revision petition before the Member, Board of Revenue, also failed---Impugned order showed that the appellant had also sought remedies before the relevant civil court and the Ombudsman, but to no avail---Ponds play a pivotal role in providing ecosystem services to society, including water purification, flood alleviation, irrigation, livestock watering, fish production, support for pollinators and climate change mitigation---Prayer made by the appellant was barred by the doctrine of judicial estoppel---Intra-court appeal was dismissed.

Messrs Iqbal Mining Co. through Partners and 6 others v. Punjab Environmental Protection Agency and 4 others 2022 CLC 1473 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Judicial restraint---Policy of government---Scope---Courts should exercise judicial restraint and refrain from passing adverse orders or taking any actions that could potentially hinder or nullify any government initiative---Such actions can seriously impede the positive initiatives being taken by concerned governmental authorities for the larger interest of the public or the country.

Muhammad Umais v. Cantonment Board Rawalpindi and others PLD 2022 Lah. 148; Syed Faisal Mehboob v. Federation of Pakistan and others 2022 CLC 1153 and Muhammad Azam v. Province of Punjab and others 2022 CLC 532 ref.

Nazeer Ahmad for Appellant.

2023 M L D 838

[Lahore]

Before Shahid Bilal Hassan, J

Messrs PREMIUM DEVELOPERS through Chief Executive---Petitioner

Versus

MUHAMMAD TARIQ---Respondent

Civil Revision No. 74574 of 2019, decided on 11th March, 2022.

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

----Ss. 12 & 54---Civil Procedure Code (V of 1908), S. 115---Suit for specific performance of agreement to sell and injunction---Balance consideration amount--- Determination--- Respondent/defendant/seller entered into agreement to sell his land with petitioner/plaintiff/buyer and after receiving earnest money did not conclude the sale---Petitioner/plaintiff/buyer claimed to have complied with all conditions of agreement---Validity---Agreement inter se the parties was a bilateral agreement and in a bilateral agreement, participating parties promised each other that they would perform or refrain from performing an act---Remaining amount of 1st installment of 25% of agreed sale consideration was to be paid by petitioner/plaintiff/buyer to the respondent/defendant/seller after finalization of actual recovery of the seller as it was remaining sale amount of already sold residential and commercial units of the Scheme upon providence of sales record along with and that of actual measurement of remaining available immovable assets of the Scheme---Nothing was on record to suggest that respondent/defendant/seller fulfilled his part of the agreement in such regard by providing detail of already sold units, residential and commercial, by providing sale records as well as actual measurement of remaining available immovable assets of the scheme---Without calculation of already sold units and received amount there-against actual sale price could not be determined and petitioner/plaintiff/buyer could not be directed to deposit entire agreed sale price as agreement in question was bilateral in nature, binding the parties to perform their parts step by step---High Court set aside order of Trial Court as the Court while passing order in question was not sure whether ordered amount was balance amount or not---Revision was allowed accordingly.

2017 SCMR 2022; Ijaz Ahmad Chaudhry v. Learned Civil Judge and others 2020 CLC 291 and Muhammad Asif Awan v. Dawood Khan and others 2021 SCMR 1270 ref.

(b) Interpretation of document---

----Agreement to sell---Scope---Agreement to sell as a whole has to be considered and read.

Shazib Masud and Mirza Nasar Ahmad for Petitioner.

Mian Muhammad Hussain Chotiya and Adnan Naseer Chohan for Respondent.

2023 M L D 860

[Lahore]

Before Ch. Muhammad Iqbal, J

Messrs INTERNATIONAL CONTRACTORS (PVT.) LIMITED---Petitioner

Versus

WAPDA and others---Respondents

Civil Revision No. 35794 of 2019, decided on 6th March, 2023.

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

----Art. 163---Dismissal of suit for non-prosecution---Scope---Where an application for the restoration of a petition was filed after the lapse of 80 days, the High Court observed that under Art. 163 of the Limitation Act, 1908, the prescribed limitation was 30 days from the date of the dismissal of the suit and held that the application was time-barred.

Mian Muhammad Asif v. Fahad and another 2009 SCMR 1030 rel.

(b) Limitation---

----Condonation of delay---Scope---It is imperative for a party to explain the delay of each and every day.

Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others PLD 1970 Lah. 412 and Sabzal and others v. Bingo and others PLD 1989 Kar. 1 ref.

Muhammad Younas Bhullar for Petitioner.

Mian Muhammad Javed for Respondents.

2023 M L D 869

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

ALLAH NAWAZ KHAN---Petitioner

Versus

MEMBER (JUDL. III) BOARD OF REVENUE PUNJAB LAHORE and 6 others---Respondents

Writ Petition No. 3360 of 2018, decided on 21st October, 2021.

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

----Ss. 4(28) & 180---Punjab Land Revenue Rules, 1968, Rr. 17 & 18---Lambardar/Headman---Appointment---Belonging to dominant tribe of the village, relevance---Disqualification on ground of being landless---Permanent Lambardar of the Chak was removed by District Collector---Respondent (Contester) was further appointed as Headman of the same village by District Collector after due procedure---Such appointment was challenged and the Executive District Officer (Revenue) upsetting the appointment of District Collector, appointed another respondent (contester) (now deceased) as Lambardar---Member Board of Revenue again restored the appointment of respondent---High Court bulldozed all the proceedings and remanded the matter to District Collector---District Collector ordered that none of the contestants were eligible for Lambardari post and required the subordinates to initiate the fresh process---Additional Commissioner once again appointed respondent (contester) and the said appointment was confirmed by Member Board of Revenue---Contentions that party had the hereditary right, so the Revenue Hierarchy was bound to appoint him as such; that respondent (another contester) was holding very meagre land; and that he was not a man of character---Held, that the hereditary claim was not the sole criteria to select the Lambardar, rather basic object was to appoint the most suitable person among eligible ones---Firstly, respondent (contester) was more educated; secondly, had excess land; thirdly, belonged to major tribe; and fourthly, was unanimously recommended by the Revenue Field Staff, Tehsildar and the Collector/Assistant Commissioner concerned---Said Authorities, who because of their experience/training were better qualified to make the choice than any forum else---High Court was not supposed to act as a Court of appeal, especially, when nothing wrong could be highlighted---Neither the appointee had ever been challenged/convicted nor a single penny was due towards him---Nothing was against him to be taken out of the contest--- Constitutional petitions were dismissed accordingly.

(b) Punjab Land Revenue Act (XVII of 1967)---

----S. 180---Punjab Land Revenue Rules, 1968, Rr. 17 & 22---Lambardar---Appointment---Lambardar is purely an administrative post of its own class---Lambardari neither can be termed as profession nor a post against any profit, rather the Headman who holds an honorary post acts as bridge inter se the landowners and Revenue Authority---Holding office of Lambardar is not a vested right of any person to claim his selection against said post---Such is absolute choice of Revenue Authority to appoint a suitable candidate per yardstick set out in R. 17 of the Punjab Land Revenue Rules, 1968 for discharging the obligations assigned to him via terms of its R. 22---Object thereof would be that person best suited for the said post should be committed to facilitate the administration, so that command and control over the State land, Exchequer besides other affairs could be maintained.

Abdul Wahid v. The Member, Board of Revenue, Punjab, Lahore and another 1971 SCMR 719; Muhammad Shaffi v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others 1972 SCMR 253; Abdul Ghafoor v. The Member (Revenue) Board of Revenue and another 1982 SCMR 202 and M. Nazir Ahmed v. Muhammad Aslam and others 2013 SCMR 363 rel.

(c) Punjab Land Revenue Act (XVII of 1967)---

----S. 180--- Punjab Land Revenue Rules, 1968, R. 17---Lambardar/Headman--- Appointment--- Qualification--- Strength of community is one of the salient qualifications for appointment of Lambardar.

Ch. Muhammad Riaz Jahania for Petitioner.

Ahmed Nadeem Gehla, A.A.G. for Respondents Nos.1 and 2.

Anwaar Hussain Janjua for Respondent No. 3.

Imtiaz Hussain Rehan for Respondent No. 4.

Syed Muhammad Ali Gillani, Syed Athar Hassan Bukhari and Ihsan Ullah for Respondent No.5 (in instant case as well as Respondent No.6 in connected W.P. No. 3086 of 2018).

Pir Ahmad Shah Khagga for Respondent No.7 and for Petitioner (in connected W.P. No. 3086 of 2018).

2023 M L D 899

[Lahore (Multan Bench)]

Before Sohail Nasir, J

ALLAH DITTA and 2 others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 1218-J and Criminal Revision No. 319 of 2017, heard on 2nd November, 2021.

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

----Ss. 302, 365, 109, 148 & 149---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Chance witnesses---Scope---Accused were charged for committing murder of the son of the complainant after kidnapping him---Motive behind the occurrence was a dispute between relatives---Ocular account of the case revolved around the testimony of complainant, wife of deceased and an eye-witness---Eye-witness had been proved to be a chance witness despite his best efforts to claim otherwise---Said eye-witness in the very first line of cross-examination admitted that he was the resident of a place which was at distance of about 10/15 kilometers from venue of crime---Although, said witness stated that he came one day earlier in the village to see his relatives/complainant etc. but he completely failed to show any strong reason which might have convinced the Court that on the day of occurrence he was present at venue of crime---Relatives of said witness might have been at venue of crime but that fact alone could not be considered as a valid and good reason given he was a witness in the case of capital charge---Said witness was running the shop in his village, so keeping in view nature of his work there was no justification for him to be present at crime scene---Dishonesty of said witness was evident from his statement that despite the fact he was resident of other place which he admitted in cross-examination, he gave his address in his particulars as of venue of crime---Same position was with reference to complainant who although was the resident of venue of crime but still had a challenge to establish his presence there---Admittedly, complainant was driver by profession and for the last 40 years he was working with an employer who was the resident of a place at a distance of 2.5 Kilometers---Complainant admitted in cross-examination that he used to reside at the Dera of his employer for the last about 40 years---Complainant never claimed that he used to return to his house every day---If it was believed that complainant had to be present in the house in evening as claimed by widow of deceased, it meant that in the morning he was supposed to go at the place of his duty---Considering that fact it could be easily understood that to work at the land was not his routine so he was under obligation to offer an acceptable reason for his presence in the field on the day of occurrence but the position was otherwise---Reverting to the statement of widow of deceased, it was proved that she at the most was a witness of abduction of her husband because thereafter she was sent to her home---Said witness, therefore, did not witness that how and in what manner subsequent to abduction deceased was done to death by the assailants---Said fact that she went to her house after abduction was conceded by all the private witnesses of the case---Statement of widow of deceased was also contradicted by the first Investigating Officer, when she stated that her statement was recorded in police station but it was denied by the Investigating Officer---Occurrence took place at 08:20 am and complaint was recorded by Police Officer at 09:00 am who before completion of said document had prepared the application for post mortem examination and inquest report, as evident from his endorsement and sent the dead body to the hospital through Police Constable---Hospital was not at a considerable distance as according to Police Constable he arrived there at about 11:00 a.m. but that position was seriously in conflict with the statement of Medical Officer who in his examination-in-chief categorically said that dead body was received in hospital at 01:30 p.m. and he conducted the autopsy at 02:20 p.m.---Said important fact of the case had confirmed the opinion of the Court that the eye-witnesses were not present at crime scene---Said fact, therefore further established that even the complaint was not recorded at the given time, which finally indicated some foul play in prosecution's case---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against accused persons---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 365, 109, 148 & 149---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Unnatural conduct of the eye-witnesses---Accused were charged for committing murder of the son of the complainant after kidnapping him---Deceased was not a stranger or alien to the eye-witnesses but their own blood, so what they were expected to do naturally at the time of occurrence, they did not do so---Complainant during entire occurrence did not try to interfere to rescue his real son from the clutches of the assailants---No doubt that according to the allegations, the assailants were eight in numbers and armed with Toka/Dandas etc. but in such a situation fear could not sustain throughout because the natural reaction of real father, finding the life of his son in danger, had to be in a way to intercept or to challenge the accused persons for the purpose of saving his life---Complainant stated that after the occurrence when he lifted his son, his hands and clothes were smeared with blood and he produced those clothes before the Investigating Officer when he met him for the first time but that fact was not supported from the statement of Investigating Officer---Similarly, widow of deceased although maintained that she scuffled with assailants and her clothes were torn but even those clothes were not produced before the Investigating Officer in support of her version---Unnatural conduct still continued because none of the private witnesses bothered to inform the police which fact they admitted and even Investigating Officer categorically replied that none from the complainant party informed the police about the occurrence---If eight persons armed with weapons emerged in the field, where complainant etc. and deceased were working and their ultimate object was to eliminate deceased, question was why he was taken to the house of accused that was at a distance of about seven acres from there---Prosecution had no valid argument or explanation for this---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against accused persons---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 365, 109, 148 & 149---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Place of occurrence doubtful---Accused were charged for committing murder of the son of the complainant after kidnapping him---About place of occurrence, there was serious doubt in prosecution's case---As evident from FIR murder took place in the house of accused whereas, column No.1 of the inquest report showed that the dead body was found at a tube well which place was at a distance of about five acres from the house of accused---Said entry was also shown to Investigating Officer who admitted it without any reservation and even Medical Officer conceded that when he received the inquest report the said entry was there---No doubt that in rough and scaled site plans, the dead body was shown in the house of accused but prosecution was under heavy burden to clarify that if it was the position then how in the inquest report the dead body was shown at tube well---Prosecution since its existence never challenged the entry in inquest report and even during trial did not ask the Trial Court for re-examination of the Investigating Officer for the purpose of any clarification---When prosecution's own case was suffering from self-contradiction, benefit thereof would go to accused persons and none else---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against accused persons---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 365, 109, 148 & 149---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Conflict---Accused were charged for committing murder of the son of the complainant after kidnapping him---Prosecution case as depicted from complaint was that deceased had died then and there at the spot, whereas Medical Officer in his examination-in-chief specifically added that time between injuries and death was within about 1½ hours---Said fact too negated the version of complainant and his witnesses---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against accused persons---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 365, 109, 148 & 149---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence--- Benefit of doubt--- Recovery of crime weapons inconsequential---Scope---Accused were charged for committing murder of the son of the complainant after kidnapping him---In the present case, Toka was recovered at the instance of accused---Prosecution case was that accused got crime weapon recovered from his house but prosecution completely failed to prove exclusive possession or distinct knowledge of accused over the said weapon which was lying open in his house---Similarly, the recoveries of 'Sotas' at the instances of co-accused persons were of no importance because those were not blood stained---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against accused persons---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 365, 109, 148 & 149---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the son of the complainant after kidnapping him---During the investigation four accused were declared innocent by the Investigating Officer and they were discharged by the Judicial Magistrate---Said position remained unchallenged from prosecution's side as they never took any exception to such declaration---Prosecution itself produced the Investigating Officer, who in his examination-in-chief, clearly asserted such fact---Meaning thereby that even prosecution was in agreement with the opinion of said Investigating Officer---Thus, the most important consideration before the Court was that discharge, in particular, of co-accused who was responsible for holding the leg of deceased and other co-accused who held deceased from his arm had again brought the case of the prosecution under clouds of heavy doubts---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against accused persons---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Benefit of doubt---Principle---Prosecution is duty bound to prove its case beyond reasonable doubt without taking any support from weakness from defence and upon failure to do so, benefit of doubt will go to accused not as a grace or concession but as a privilege.

Prince Reehan Iftikhar Sheikh for Appellants.

Muhammad Laeeq-ur-Rehman Khan, ADPP for the State.

Badar Raza Gillani and Syed Qaiser Abbas Gillani for the Complainant.

2023 M L D 914

[Lahore]

Before Raheel Kamran, J

MUHAMMAD ARIF---Petitioner

Versus

FOUZIA NASREEN and others---Respondents

W.P. No. 30491 of 2021, decided on 14th February, 2023.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Family Courts Rules, 1965, R. 6---Maintenance of wife and minor children who were foreign nationals---Jurisdiction of Family Court---Scope---Suit of the respondent/wife for dissolution of marriage, recovery of maintenance and dowry articles was partially decreed by the Trial Court and appeal of the petitioner/husband was dismissed---Maintainability---Admittedly, respondent/wife and the petitioner/husband had moved to a foreign country to reside there only after a couple of months of their marriage where the minors were born---Since their marriage, respondent/wife and her husband/ respondent along with the minors visited Pakistan only two to three times---Minors were foreign citizens by birth who were admittedly residing there---Nothing was produced in evidence to establish intentions of the respondents to reside in Pakistan---Income of the petitioner/husband was accruing in foreign country where admittedly he was working and all expenses for the maintenance of respondents were to be incurred in the country where they were residing---Not only the parties were residing in the foreign country but the cause of action for their maintenance also apparently arose there upon which the courts of that foreign country could exercise jurisdiction---Suit for the recovery of maintenance of respondents was not maintainable before the Family Court at Pakistan---Courts below had manifestly acted in disregard of R. 6 of Family Courts Rules, 1965, while deciding the relevant issue in negative i.e. against the petitioner/husband and in favour of the respondents---Impugned judgments and decree of maintenance passed by the courts below were set aside and suit for the maintenance of respondents was dismissed for lack of jurisdiction---Petition was allowed, in circumstances.

Javed Rehmat Gill for Petitioner.

Sohail Qaiser Tarar for Respondents Nos. 1 to 3.

2023 M L D 937

[Lahore]

Before Rasaal Hasan Syed, J

SHAHID MEHMOOD DAR---Petitioner

Versus

RAZA MEHMOOD KHURSHAND---Respondent

C. R. No. 11445 of 2023, decided on 20th February, 2023.

Civil Procedure Code (V of 1908)---

----O. XIV, R. 5---Power to amend and strike out issues---Application of the petitioner for framing of additional issues was dismissed by the Trial Court---Validity---Scrutiny of issue already framed showed that it was to the effect that whether the plaintiff was entitled to the decree for defamation and damages under the provisions of Defamation Ordinance, 2002, which was a comprehensive and composite issue that would obligate the respondent/plaintiff to establish all those events that constitute cause of action, right to seek relief on the basis thereof as well as the enforceability/maintainability of the claim in law and fact and would also enable the petitioner/defendant to produce his entire evidence in defense based on his written statement inclusive of his legal plea qua the maintainability of the claim---Petitioner's plea for framing of the additional issues contained in the application, as such, was not well-conceived and was correctly turned down by the Trial Court---Petitioner's plea for rejection of plaint under O. VI, R. 11, C.P.C., did not need framing of a separate issue because this being a legal objection required to be taken at early stage---Issues are not framed on each and every ground raised in pleadings and if a composite issue is framed parties can produce their evidence respectively and no exception can be taken thereto as it does not prejudice anyone---Petition was dismissed in limine.

Qaim Din v. Said Ahmad and another PLD 1967 Lah. 1171 ref.

2023 M L D 946

[Lahore]

Before Safdar Saleem Shahid, J

Rai SHAH JEHAN AHMED KHAN BHATTI---Petitioner

Versus

Rai AURANGZEB KHAN BHATTI and 3 others---Respondents

Civil Revision No. 11289 of 2022, decided on 9th May, 2022.

(a) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----S. 4---Suit for partition----Scope----Claim for partition is a recurring cause of action and unless the division of the joint property had been finalized each party remains participant of the partition proceedings and has right to claim his share and that right is not lost.

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

----S. 114, O. XLVII, R. 1---Scope---Held, that scope of review is very limited and review can be sought in an extraordinary situation and it cannot be taken as a matter of routine and review jurisdiction can be invoked only where discovery of some new and important evidence which despite exercise of due diligence is not within the knowledge of party and so could not produced by him when order was being passed or on account of some mistake or error on the face of record----Review jurisdiction is to be exercised within strict parameter laid down in O. XLVII, C.P.C and failure of a party to appear on a date of hearing is no ground for review of judgment passed in his absence---Review jurisdiction is confined to the extent of patent error or a mistake floating on surface of record, which, if not corrected, may perpetuate illegality and injustice---Points already raised and considered by Court cannot be reagitated in review jurisdiction---Mere fact that another view of matter was possible or conclusion drawn in impugned judgment was wrong will not be a valid ground to review a judgment, unless it is showed that the Court has failed to consider an important question of law---Civil revision was dismissed.

Mst. Gul Safia Bibi and another v. Al-Haj Muhammad Nazir and 2 others 2016 CLC 10; Iqbal Pervaiz and others v. Harsan and others 2018 SCMR 359; Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others 2007 SCMR 755; Mst. Aisha and others v. KMC Defunct, succeeded by City District Government Karachi and others 2005 YLR 175 and Mussrat Nazir v. Malir Development Authority through Director General, Memon Goth, Malir and 4 others 2009 MLD 167 rel.

M. Imtiaz-ur-Rehman Gujjar for Petitioner.

Ch. Shabbir Ahmad for Respondents Nos. 1 - 2.

Nemo for the Respondents Nos. 3 - 4.

2023 M L D 957

[Lahore (Multan Bench)]

Before Muhammad Shan Gul, J

SHABBIR AHMAD (DECEASED) through Legal Heirs---Petitioner

Versus

Mst. SHAHER BANO and 2 others---Respondents

Civil Revision No. 116-D of 2022, decided on 16th March, 2022.

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

----S. 96 & O. XLI, Rr. 16, 30---Appeal---Disposal of appeal without hearing the defendant---"Hearing", meaning of---Principle of natural justice-Duty of the Court----Respondents/Plaintiffs filed a suit for possession before the Trial Court---Petitioners/Defendants contested the matter by filing written statement---Trial Court decreed the suit in favour of respondents/plaintiffs---Petitioners/defendants filed appeal before Appellate Court which was admitted to hearing yet while deciding the appeal counsel for the petitioners was not allowed an opportunity of addressing the Appellate Court or for that matter presenting his oral or written arguments---Appellate Court dismissed the appeal---Held, that it was a fact that the appeal filed by the petitioners was decided without hearing them and even without allowing them to submit written arguments in their favour---In case in hand, despite the absence of the counsel for the petitioners in the appeal and despite the presence of an adjournment on petitioners' counsel behalf ,the Appellate Court proceeded to decide the appeal on merits for reasons only known to the Appellate Court---Disposal of an appeal in the manner adopted and pursued by the Appellate Court was clearly an affront to and not contemplated by, the governing law----Order XLI of the C.P.C, 1908, prescribed the manner and procedure to be followed in deciding appeals---Term 'hearing' spoken of in O. XLI, R. 16 of the C.P.C, 1908, at least envisaged oral arguments and in the same vein R. 30 of O. XLI of the C.P.C, 1908, also envisaged a hearing before pronouncement of judgment---Disposal of the appeal, in case in hand, was unarguably undertaken without hearing and a few days adjournment of the appeal would not have made heavens fall---Appellate Court lost sight of established principles with respect to disposal of appeals and ironically it had delayed the disposal of the matter rather than expedited it---Appellate Court by failing to take into account the provisions of O. XLI, R. 16 of the C.P.C, 1908, had failed to follow a statutorily mandated procedure and had, therefore, rendered its decision procedurally improper since it had refused to act with procedural fairness towards the affectees of the decision---Fairness required that a person who might be affected by a decision would have an opportunity to make representation on his own behalf before the decision was taken---Appellate Court by refusing to allow the counsel for the petitioners to be heard had caused miscarriage of justice by passing a decision which not only suffered on account of being procedurally improper and infirm but which was also bad on account of being materially irregular---Lapse on the part of Appellate Court went to the root of its jurisdiction and rendered the judgment passed by it seriously open to interference in revisional jurisdiction---Civil revision was allowed and the judgment passed by the Appellate Court was set aside and declared to be of no legal effect.

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

----O. XLI, R. 16---Constitution of Pakistan, Arts. 4 & 10-A---Due process of law---Adequate opportunity of hearing---Articles 4 & 10-A of the Constitution, provided a citizen with a right to be dealt with according to due process of law and confered the right of fair trial and due process on a person in the matter of determination of his civil rights and obligations---Said Articles and O. XLI, R. 16 of C.P.C., laid emphasis on the aspect of adequate opportunity of hearing to a party in the matter of determination of his/her civil rights and obligations.

(c) Administration of justice---

----Justice hurried is justice buried---Justice rushed is justice crushed---Said phrases were not meaningless cliché but were rather quite meaningful and in fact were supported by constitutional underpinnings.

Sazia Sultana v. Razia Begum PLD 2003 Lah. 27; Manzoor Hussain v. Mst. Zamurrad Begum and 8 others 2004 MLD 1118; Prince Sheikh Abdul Qadir v. Nawab Sheikh Nasiruddin and 7 others PLD 1993 Kar. 216; Messrs S. M. Abdullah and Sons v. Messrs Pakistan Mercantile Corporation Ltd., Karachi and another PLD 1976 Kar. 268; Mst. Kishwar Bibi and others v. Mst. Fatal Bibi and 2 others PLD 2004 Lah. 717; Muhammad Tufail and 5 others v. Din Muhammad through his Legal Representatives PLD 1992 Lah. 152; Malik Muhammad Ahsan and others v. Mst. Hameeda Begum 1999 MLD 1941; Kanda v. Government of Malaya (1962) AC 322 and O' Reilly v. Mackman (1933) 2 AC 237 rel.

(d) Administration of justice---

----Essential requirements of natural justice---Duty of the Court---Essential requirements of natural justice at least provided that before someone was condemned he had to be given an opportunity of defending himself and this was something so basic to the system of administration of justice that the importance of upholding it far transcended the significance or peculiarity of any particular case---As long as a decision takes away some existing right or position a right to be heard has to be afforded.

Neill v. North Antrim Magistrates (1992) 1 WLR 1220 rel.

Muhammad Ashraf Sheikh for Petitioner.

Malik Muhammad Akbar Bhutta for Respondents.

2023 M L D 981

[Lahore (Rawalpindi Bench)]

Before Ch. Muhammad Masood Jahangir, J

Syed ZAHID HUSSAIN SHAH---Petitioner

Versus

MUMTAZ ALI and others---Respondents

Civil Revision No. 233 of 2021, decided on 19th May, 2022.

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

----S. 149---Power to make up deficiency of court-fees---Scope---Plaintiff specifically fixed ten million rupees as value of his suit for the purpose of court fee and jurisdiction, who per demand of law levied its maximum quantum as well---Such fact throughout was never disputed, thus remained unchanged---Petitioner/Defendant, who was obliged to file the appeal while levying court fee of Rs.15,000/- (as did upon the plaint) preferred the same without its affixation and even did not provide when during pendency thereof Additional District Judge (seized of the appeal) vide interim order specifically reminded him in that behalf, but no heed was paid---Appellate Court while accepting appeal once again required the petitioner to provide court fee within next thirty days, which was the last chance (otherwise his appeal would deem to be dismissed), but said condition was not fulfilled, whereas the petitioner acted recklessly and contumaciously---Via petition so made for enlargement of time, it was not the stance of the petitioner that said condition was not in his knowledge, whereas grounds given therein were neither sufficient nor supported by any material to grant the prayer---Petitioner had acted recklessly and being contumacious was liable to be knocked out because his negligent attitude accrued vested right to his contestant---Revision petition was dismissed.

Muhammad Tariq and others v. Amjad Ali and others PLD 2018 Lah. 502 rel.

Tarachand Mondal and others v. Hazari Shaikh and another PLD 1967 Dacca 203; Mst. Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821; Muhammad and others v. Allah Ditta PLD 1981 Lah. 293; Mst. Samera Butt v. Husnain Ahmad Nasir and 3 others 2009 MLD 942; Hafiz Muhammad Mubeen through Legal heirs v. Government of Sindh through Deputy Commissioner, Sukkur and 5 others 2014 MLD 419; Haji Raja Muhammad Akram and others v. Riaz Ahmad and others 2015 MLD 477 and Habib Akbar v. Pir Azam Syed 2017 YLR 26 distinguished.

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

----Ss. 149 & 96---Power to make up deficiency of court-fees---Scope---An appeal is deemed to be filed only on the day, when the deficiency in the court fee is made up.

Balvant Singh v. Jagit Singh AIR 1947 Lahore 210; H. Feldman v. Province of East Bengal PLD 1970 Kar. 295; Mst. Walayat Khatun v. Khalil Khan PLD 1979 SC 821; Muhammad and others v. Allah Ditta PLD 1981 Lah. 293; State Life Insurance Corporation of Pakistan v. Messrs Zainab Khatoon and 5 others 1997 PLC 489; Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others 1997 SCMR 979 and Almas Ahmad Faiz v. Secretary, Government of Punjab Housing and Physical Planning Development Lahore 2006 SCMR 783 ref.

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

----S. 149--- Power to make up deficiency of court-fees---Scope---Discretion in terms of S. 149 of C.P.C. cannot be allowed to be extended after expiry of period of limitation as condonation of delay to pay the court fee thereafter tantamounts to destroying the said provision.

Syed Aqeel Abbas Kazmi for Petitioner.

Dr. Muhammad Ali Khan for Respondent No. 1.

2023 M L D 992

[Lahore]

Before Ali Zia Bajwa, J

ARSHAD MAHMOOD---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No. 14351-B of 2023, decided on 27th March, 2023.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Delayed FIR---Accused, who was arrested for an offense under S. 489-F, P.P.C., applied for bail---Registration of the crime report was delayed for over a year without explanation---It was apparent from the crime report that the accused had business dealings with the complainant---Accused claimed that he did not receive any money from the complainant, but this could be settled by the Trial Court after taking evidence---Since the maximum punishment for the offense under S. 489-F, P.P.C., was not more than three years, it did not fall under the prohibitory clause of S. 497, Cr.P.C.---Bail was the norm in cases like this, and its denial was an exception, but the prosecution could not identify any exceptional circumstances---Accused had no prior convictions or record---Accused had been in jail since his arrest, and the police no longer required his presence for further investigation---Prosecution would not benefit from the accused's indefinite detention in jail--- Bail was granted, in circumstances.

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

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

----S. 489-F---Dishonestly issuing a cheque---Scope---Filing a case under S. 489-F, P.P.C., is not a means of recovering any outstanding dues from the accused---Instead, civil proceedings offer various remedies, including those under O. XXXVII of the C.P.C.

Abdul Saboor v. The State through A.G. Khyber Pakhtunkhwa and another 2022 SCMR 592 rel.

Muhammad Younas Bhullar for Petitioner.

Rai Asif Mehmood, D.P.G. with Jameel, ASI along with Record for the State.

2023 M L D 1000

[Lahore]

Before Raheel Kamran, J

Mirza WAQAR AHMED and others---Petitioners

Versus

AYESHA ZEESHAN and others---Respondents

W.P. No. 23024 of 2022, decided on 8th March, 2023.

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

----S. 25---Constitution of Pakistan, Art. 199---Custody of minors---Financial means of father better than mother's---Application of the respondent/mother for custody of the minors was dismissed by the Trial Court while her appeal was partly allowed entrusting her the custody of minor daughters while maintaining the order of the trial court to the extent of custody of minor sons---Validity---Undisputedly, petitioner/ father of the minors had better financial means and resources than their mother/respondent since petitioner/father was settled in a foreign country, however, that was not the determining factor in law to adjudicate upon custody of the minors---Maintenance of child was the duty of the father and the mother could not be deprived of custody due to her inability to maintain the child for lack of resources---Petitioner/Father did not personally appear in the witness box to oppose claim of respondent/mother and to establish how entrustment of custody to him was indeed in the welfare of the minors---Respondent/mother of the minors, on the other hand, despite meager resources available to her had been relentlessly pursuing her claim for the custody of the minors for a number of years---Mother of the minors girls was entitled to their custody unless there was anything available on record to disentitle her---Minor daughters in this case were at such tender ages where they required the care and custody of their mother because no one could be a better custodian of a minor girl than the real mother---Minor was not always the best judge of where his or her welfare lied---Resourceful father had legal, moral and religious obligation to facilitate his minor daughters' congenial educational environment at his expense---If the minor daughters were deprived of the love, affection and care of their real mother, the quantum of loss of their psychological and emotional development would be phenomenally higher in comparison to limiting interaction with their brothers, which could be mitigated by frequent meetings inter se the minors---Petitioner/Father could not be allowed to remove the minors out of the territorial limits of Pakistan without leave of the Court, particularly when the same was opposed by their mother---Removal of the minors from the territorial limits carried the risk of irreversibly compromising or destroying right of the mother to custody of the minor girls and visiting rights of the minor boys---Impugned judgment of the Appellate Court did not suffer from any illegality or jurisdictional error---Petition was dismissed, in circumstances.

Mst. Feroze Begum v. Lt-Col. Muhammad Hussain 1983 SCMR 606; Munawar Bibi v. Muhammad Amin 1995 SCMR 1206; Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821; Mst. Beena v. Raja Muhammad and others PLD 2020 SC 508; Mst. Tahira v. Additional District Judge, Rawalpindi and others 1990 SCMR 852 and Mir Bat Khan v. Mst. Shirin Bibi and others 2019 SCMR 520 ref.

Barrister Javed Zahid Warraich with minors for Petitioners.

Syed Muhammad Mehdi Shah for Respondent No. 1 with Respondent No. 1 in person.

2023 M L D 1023

[Lahore]

Before Ch. Muhammad Iqbal and Muzamil Akhtar Shabir, JJ

PROVINCE OF PUNJAB through Secretary, Government of Punjab, Revenue Department, Lahore---Petitioner

Versus

FEDERAL LAND COMMISSION through Chairman, Islamabad and 3 others---Respondents

Writ Petition No. 26860 of 2021, decided on 24th November, 2022.

(a) Administration of justice---

----Void order---Scope---Order passed by an authority without jurisdiction is illegal and void ab-initio.

Khuda Bakhsh v. Khushi Muhammad and 3 others PLD 1976 SC 208; Bashir Ahmad v. Meer Aslam Jan 2007 CLC 1544; Messrs East-West Insurance Company Ltd. through Chairman and another v. Messrs Muhammad Shafi and Company through Managing Partner and 2 others 2009 CLD 960 and Sultan v. Federation of Pakistan and 4 others (Writ Petition No.28756 of 2014) rel.

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

----Ss. 11 & 12(2)---Punjab Board of Revenue Act (XI of 1957), S. 7---Constitution of Pakistan, Art. 199---Constitutional petition---Fraud and misrepresentation---Judgment, setting aside of---Second revision---Res-judicata--- Applicability--- Applicants / petitioners assailed their dispossession from land in question by Federal Land Commission but their petition was dismissed as withdrawn---Applicants/petitioners sought restoration of their petition on the plea of fraud---Validity---Earlier revision petition regarding resumption of land of declarant was dismissed on merit by Federal Land Commission and that dismissal order was maintained by Supreme Court---Without disclosing earlier facts, Second revision petition filed by respondent containing same set of facts, same property, same cause of action and between same parties was not maintainable under the principle of res-judicata---Order dismissing petition as withdrawn was set aside and the case was restored to its original number---High Court quashed the orders of ejectment of petitioners from land in question as the same were passed in presence of status quo order---High Court directed revenue authorities to immediately restore possession of land in question to applicants/petitioners---Order passed by Federal Land Commission was passed in violation of Art. 189 of the Constitution, as the matter had already been finalized upto Supreme Court and the matter was hit by principle of res judicata, therefore, the order was passed without jurisdiction---Constitutional petition was allowed accordingly.

Muhammad Sharif v. Settlement Commissioner and others 2007 SCMR 707; Iffat Jabeen v. District Education Officer (M.E.E), Lahore and another 2011 SCMR 437; Dr. Iqrar Ahmad Khan v. Dr. Muhammad Ashraf and others 2021 SCMR 1509; Abdul Majid and another v. Qazi Abbas Hussain Shah 1995 SCMR 429; Syed Hassan Mehdi and others v. Province of Punjab and others PLD 2011 SC 916; Chief Commissioner Inland Tax through RTO, Zone-I, Federal Board of Revenue, Hyderabad and others v. Ghulam Mustafa Mari, Ex-Inspector, Income Tax, Revenue Division, FBR, Hyderabad 2019 SCMR 1657 and Quetta Development Authority through Director General v. Abdul Basit and others 2021 SCMR 1313 ref.

Muhammad Chiragh-ud-Din Bhatti v. The Province of West Pakistan through Collector, Bahawalpur and 2 others 1971 SCMR 447; Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146; Sayed Dilawar Jan and 2 others v. Meftah Uddin and 3 others 2015 MLD 1408; Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648; Mst. Ashraf Bibi and others v. Muhammad Amin and others 2008 SCMR 1434; Ashfaq Zai and others v. M. Abdul Quddus Bihari and others 1992 SCMR 1109; Abdul Shakoor and others v. Haroon and others 2008 SCMR 896; Mst. Khurshidan Bibi v. Additional District Judge and others 2006 YLR 641; Pirzada Niaz Ahmed Farooqi through Legal Representatives v. Muhammad Bux and others 2004 SCMR 862; Bakhtawar v. Amin 1980 SCMR 89; Chiragh Din and another v. Chairman, Thal Development Authority 1970 SCMR 29; Saleem-ud-Din and another v. Municipal Committee, Tando Allahyar through Administrator and 5 others 2000 SCMR 460; Akbar Ali v. Muhammad Sabir 1989 MLD 92; Muhammad Anwar v. Municipal Corporation, Faisalabad 1993 CLC 851 and Sujit Pal v. Prabir Kumar Sun and others AIR 1986 Cal. 220 rel.

Ms. Alia Ejaz, Additional Advocate General for Petitioner (in W.P. No.26860 of 2021).

Amjad Pervaiz Malik for Petitioner (in W. P. No. 27943 of 2019).

Malik Noor Muhammad Awan, Saima Hanif, Malik Haq Nawaz Khokhar and Mohsin Hanif Chaudhary for Petitioners ([applicants in C.Ms. Nos.1, 4 and 6 of 2019] in W.P. No. 23118 of 2011).

Rai Wali Muhammad Kharal and Ali Jaffar Khan, Assistant Attorney General for Respondents.

2023 M L D 1061

[Lahore]

Before Ch. Muhammad Iqbal and Muzamil Akhtar Shabir, JJ

NAJIB ASLAM through L.Rs and others---Appellants

Versus

The STATE through District Collector Faisalabad and 3 others---Respondents

I.C.A. No. 27129 of 2021 in W.P. No. 241473 of 2018, decided on 7th December, 2022.

(a) Islamic Law---

----Property rights---Scope---Any asset, estate or property which comes to ownership of Muslim as ascendant or descendant, sharer or distant kinder or inheritor according to Principles of Islam such land is vested to a Muslim without any restriction or embargo for its utilization or on disposal of such land---Any regional usage or customs and tradition, if any, is inconsequential and ineffective regarding such right and authority.

(b) Pakistan (Protection of Evacuee Property) Ordinance (XVIII of 1948)---

----Ss. 6 & 12---Evacuee property---Possession---Cancellation of decree---Respondent got land in question mutated in his name on the basis of judgment and decree passed by Trial Court in year 1952, which land was an evacuee land---Predecessor-in-interest of appellants sought cancellation of land in question from the name of respondent but he remained unsuccessful---Held, that after creation of Pakistan, all evacuee properties abandoned by non-Muslim evacuees stood vested with Central Government of Pakistan, who by operation of law had become owner of land in question under S. 6 of Pakistan (Protection of Evacuee Property) Ordinance, 1948--- Bar was imposed under S. 12 of Pakistan (Protection of Evacuee Property) Ordinance, 1948, regarding transfer of any evacuee property on or after 1-8-1947, and all issues regarding such evacuee lands stood vested in the jurisdiction of Custodian---Appellants as well as respondent did not agitate the matter before such statutory forum---Respondent after lapse of a period of about 7 years challenged the transaction/sale deed dated 5-6-1944 before Civil Court on 1-10-1951 knowing that vendees after abandoning their lands had migrated to India---Respondent instituted a civil suit in Civil Court without arraying Central Government or Custodian as party to such civil suit---Suit was malafidely filed against non-Muslim vendees who were not living in Pakistan, rather they had migrated to India in the year 1947---Such suit land vested in government and respondent by committing fraud obtained decree from Civil Court without arraying necessary parties---Such decree was inexecutable as the same was passed without jurisdiction and was in itself void in nature and was devoid of creating any right---Division Bench of High Court directed revenue authorities to take necessary action against mutation in favour of respondent, which was based upon void and inexecutable decree---Division Bench of High Court declined to interfere in the judgment passed by Judge in Chambers of High Court---Intra Court Appeal was dismissed, in circumstances.

Ghulam Rasul and 5 others v. Jannat Bibi and 11 others 1990 SCMR 744; Muhammad Sadiq (decd.) through L.Rs and Others v. Mushtaq and others 2011 SCMR 239; Nasir Fahimuddin and others v. Charles Philips Mills and others 2017 SCMR 468 and Allah Rakha (deceased) through LRs and others v. Additional Commissioner (Revenue) Gujranwala and others 2020 SCMR 502 rel.

2023 M L D 1076

[Lahore (Multan Bench)]

Before Muhammad Sajid Mehmood Sethi, J

AHMAD BAKHSH---Petitioner

Versus

IMAM BAKHSH and others---Respondents

Civil Revision No. 950 of 2019, heard on 8th December, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 115 & O. VI, R. 17--- Suit for declaration and injunction---Amendment of pleadings---Petitioner/plaintiff was aggrieved of order passed by Lower Appellate Court declining to amend pleadings and setting aside of judgment and decree passed by Trial Court in favour of petitioner/plaintiff---Validity---While deciding application for amendment of pleadings, Court was to keep in view the interest of justice and was to allow the case to run on correct lines for decision of real controversy---Amendment could be allowed while ignoring delay even at any stage of the proceedings in trial and in certain cases, amendments were permitted at the stage of appeal or even in revisional jurisdiction---In view of beneficial rule, proposed amendment was expedient for the purpose of determining real questions in controversy between the parties and it was not changing the nature of pleadings---Occasion for amendment only arose upon acceptance of application of respondent/defendant for bringing a new document on record---Petitioner's/plaintiff's request for amendment in such situation could not have been refused---High Court allowed petitioner/plaintiff to amend the pleading and remanded the matter to Trial Court for decision afresh after setting aside judgments and decrees passed by two Courts below---Revision was allowed accordingly.

Mst. Ghulam Bibi and others v. Sarsa khan and others PLD 1985 SC 345; Mst. Barkat Bibi v. Khushi Muhammad and others 1994 SCMR 2240; Muhammad Abdullah Khan Niazi v. Rais Abdul Ghafoor and others PLD 2003 SC 379; Abaid Ullah Malik v. Additional District Judge, Mianwali and others PLD 2013 SC 239; Manzoor Hussain and others v. Mst. Fazloon Bibi and others 2020 CLC 2001 and Muhammad Saleem Naseem v. Additional District Judge, Dunyapur and 12 others 2021 CLC 87 rel.

Ch. Khawar Siddique Sahi for Petitioner.

Muhammad Amir Khan Bhutta and Kamran Rasool Qaisarani for Respondents.

2023 M L D 1105

[Lahore]

Before Shahid Karim, J

Sheikh RASHID AHMED---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 7437 of 2023, decided on 27th March, 2023.

(a) Constitution of Pakistan---

----Arts. 199 & 224A---Constitutional jurisdiction---Resolution by Election Commission, challenge to---Scope---Petitioners challenged the notification issued by the Election Commission of Pakistan (ECP) whereby a Care-taker Chief Minister of the Province was appointed---Contention of the petitioner was that the exercise of such discretion was required to be structured---Validity---Doctrine relating to structuring of discretion does not apply to powers which are conferred under the constitutional scheme on high constitutional bodies such as ECP---Structuring of discretion stems from the doctrine of non-delegation---It applies to delegation of powers made by the legislature on subordinate authorities to be exercised within the confines of the powers mentioned in the primary legislation itself---It is in those cases that issues relating to structuring of discretion arise on the basis of which courts can decide whether the delegatee has exceeded the power conferred upon it by the delegator---Election Commission of Pakistan is a constitutional body and is tasked with making a decision regarding the appointment of a care-taker Chief Minister and the High Court will not go into the merits of that decision---Deference must be given to the decision made by ECP, which merely chooses one of the candidates referred to it on the recommendation of the Chief Minister and the Leader of the Opposition---Decisions made by the exercise of constitutional powers can only be interfered with by superior courts if they contravene the constitution itself--- Constitutional petitions were dismissed.

(b) Discretion---

----Structuring of discretion---Doctrine of non-delegation---Scope---Structuring of discretion stems from doctrine of non-delegation---It applies to delegation of powers made by the legislature on subordinate authorities to be exercised within confines of the powers mentioned in the primary legislation itself---It is in those cases that issues relating to structuring of discretion arise on the basis of which courts can decide whether the delegatee has exceeded power conferred upon it by the delegator.

Muhammad Azhar Siddique, Amna Liaqat, Salma Riaz and Ali Ashfaq Sheikh for Petitioner.

Muhammad Nauman Shams for Petitioner in the connected petition.

Barrister Haris Azmat, Maryam Hayat and Barrister Hamza Amjad for the Election Commission of Pakistan.

Nasar Ahmad, Additional Attorney General and Asad Ali Bajwa, Deputy Attorney General.

2023 M L D 1118

[Lahore]

Before Ch. Muhammad Iqbal, J

SHAHZAD AKHTAR---Petitioner

Versus

FARUKH JAMEEL---Respondent

Civil Revision No. 52143 of 2020, heard on 11th November, 2021.

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

----O. XXXVII, Rr. 1, 2, 3 & O. V, Rr. 10, 17, 19, 20----Suit for recovery of money on the basis of cheque---Application for leave to appear, dismissal of---Mode of service---Procedure when defendant refuses to accept service, or cannot be found---Examination of serving officer---Substituted service---Scope---Plaintiff filed a suit to recover a certain amount based on a cheque under O. XXXVII of the Civil Procedure Code (C.P.C.)---Defendant appeared and applied for leave to defend the suit, but the application was dismissed as it was considered time-barred---Validity---Process server's report indicated that the defendant had refused to receive the notice, leading to the notice being served by affixing it---Trial Court ordered substitute service of the defendant through publication in a newspaper---After the publication, the defendant appeared and filed an application, but it was dismissed---Trial Court had failed to follow proper procedures outlined in the C.P.C.---Process server had not provided the necessary details about the person who identified the defendant's house during the affixation---Additionally, the Trial Court had not followed the prescribed procedure for substituted mode of service---Publication made by the Trial Court violated relevant rules, rendering the order unsustainable---Civil revision was allowed.

Ghulam Muhammad v. Abdul Ghaffar 2007 CLD 1633; Ahmed Khan v. Haji Muhammad Qassim and others 2002 SCMR 664 and Nouroz Khan v. Haji Qadoor 2005 SCMR 1877 ref.

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

----Art. 159---Civil Procedure Code (V of 1908), O. XXXVII, R. 3---Suit for recovery of money---Application for leave to appear---Limitation---Scope---Prescribed period for filing the application for leave to appear and defend such suit is ten days from the date of service of summons or the date of knowledge.

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

----O. V, R. 17---Procedure when defendant refuses to accept service, or cannot be found---Scope---It is duty of the process server to write the name and address of the person by whom the house was identified and in whose presence the copy was affixed.

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

----O. V, R. 19---Examination of serving officer---Scope---When the summons is returned under R. 17 of O. V, C.P.C. the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath.

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

----O. V, R. 10---Mode of service---Scope---Summons shall be made by delivering a copy thereof signed by the Judge and stamped with the seal of the Court.

Dr. Imran Mahmood, Nawaz Ahmed Bhatti and Mubashir Niaz Gujjar for Petitioner.

Amjad Qayyum Baloch for Respondent.

2023 M L D 1121

[Lahore]

Before Jawad Hassan, J

Mst. MEHR-UN-NISA BEGUM---Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Director General and 5 others---Respondents

W.P. No. 153723 of 2018, heard on 23rd February, 2023.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Locus standi---Scope---Petitioner claimed that the proposed installation of a tube well in a park reserved for public use and children's recreation would negatively impact the playground---However, the respondents argued that the tube well was to be installed in a vacant area---Validity---Petitioner was not directly affected by any actions taken by the respondents regarding the installation of the tube well, which was solely between the cooperative society and Water and Sanitation Agency (WASA)---Petitioner did not have locus standi to approach the High Court under Article 199 of the Constitution---Constitutional petition was dismissed, in circumstances.

"Judicial Review of Public Actions" page-977 Volume-2 by Justice (Retd.) Fazal Karim rel.

Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394; Sheri-CBE and others v. Lahore Development Authority and others 2006 SCMR 1202; Province of Sindh through Chief Secretary and 8 others v. Syed Kabir Bokhari 2016 SCMR 101; Mrs. Kausar Rashid through Attorney v. Karachi Building Control Authority and 9 others 2017 MLD 1363 and Mian Fazal Din v. Lahore Improvement Trust, Lahore PLD 1969 SC 223 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Locus standi---Aggrieved party---Scope---It is sine qua non for initiation of proceedings under Art. 199 of the Constitution that the petitioner should have a locus standi to institute the proceedings or in other words the petitioner should be an aggrieved party from the action of the respondent.

Montgomery Flour and General Mills Ltd., Montgomery v. Director, Food Purchases, West Pakistan and others PLD 1957 (W.P) Lahore 914; Imran Khattak and another v. Ms. Sofia Wagar Khattak, PSO To Chief Justice and others 2014 SCMR 122; Hafiz Hamadullah v. Saifullah Khan and others PLD 2007 SC 52 and N.W.F.P. Public Service Commission and others v. Muhammad Aril and others 2011 SCMR 848 rel.

Mian Fazal Din v. Lahore Improvement Trust, Lahore PLD 1969 SC 223 ref.

Muhammad Javed Iqbal Qureshi for Petitioner.

Sahibzada Muzaffar Ali Khan, Advocate Supreme Court for LDA.

Mian Muhammad Saqlain for Respondent No. 4.

Zerak Elahi, Vice Counsel for WASA.

2023 M L D 1134

[Lahore]

Before Aalia Neelum, J

NASEER AHMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 251444 of 2018, decided on 18th November, 2022.

Penal Code (XLV of 1860)---

----S. 376---Rape---Appreciation of evidence---Consent of minor---False allegation---Accused was alleged to have raped the victim who was below the age of 16 years---Plea raised by accused was that victim was a consenting party---Validity---It was difficult for a young girl of 14-15 years to level allegation of rape, particularly when she had alleged her pregnancy owing to sexual intercourse by accused---On the day accused committed offence under S. 376, P.P.C., the victim was less than 16 years of age---Victim stated before Trial Court that accused had committed rape with her under the threat that if the fact was disclosed to any person her naked pictures would be uploaded on internet---Case fell within the definition of S. 375, P.P.C. and medical evidence corroborated the allegation of rape---Delay in lodging FIR was of no consequence as accused had committed very heinous offence---High Court declined to take any lenient view against accused---High Court maintained conviction and sentence awarded to accused as Trial Court committed no error in punishing him for imprisonment for ten years---Appeal was dismissed, in circumstances.

Mudassar Naveed Chatha for Appellant.

Sultan Asghar Chatha, D.P.G. for the State.

2023 M L D 1167

[Lahore (Multan Bench)]

Before Muhammad Sajid Mehmood Sethi, J

NAEEM SHEHZAD---Petitioner

Versus

Mst. SARRAN BIBI and 10 others---Respondents

Civil Revision No. 358 of 2022, decided on 13th December, 2022.

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

----O. V, Rr. 20, 25---Service where defendant resides out of Pakistan and has no agent---Substituted service---Scope---Petitioner who resided abroad was not served properly---Trial Court as well as the appellate court dismissed petitioner's application for setting aside ex parte judgment and decree by simply observing that application had been filed willfully to disturb the execution proceedings---Question whether service was actually effected or respondents were aware of the said proceedings were substantial in nature and the Court was under duty to decide such question after recording of pro and contra evidence---Ex parte decrees were passed on the basis of defective service---Same would adversely affect not only valuable rights of the litigants but also render the Court proceedings defective and meaningless as final order/ judgment on defective foundation is liable to be set aside---Substituted service by way of publication is only presumed to be personal service which presumption is rebuttable---Substituted service could not be resorted to unless all efforts to effect service in the ordinary manner were verified to have failed---In the present case prior to publication in the newspaper, neither the available modes of service were exhausted nor was there a verification that the modes of service so used had failed---Impugned orders passed by Courts below, were set aside and petitioner's application for setting aside judgment and decree was allowed--- Revision petition was allowed, in circumstances.

Aziz Khan v. Maiz Muhammad Khan and 6 others PLD 1980 Pesh. 227; Anwar Ahmed v. Waqar Ahmed and 8 others PLD 2015 Sindh 326; Muhammad Anwar v. Abdul Haq 1985 SCMR 1228; Haji Akbar v. Gul Baran 1996 SCMR 1703; Nargis Latif v. Feroz Afaq Ahmed Khan 2001 SCMR 99; Muhammad Nawaz v. Amir Sultan 2013 CLD 1174; Sh. Mukhtar Ahmad and others v. Muhammad Saleem Bhatti and others 2013 MLD 1383 and Iftikhar Ahmed Qureshi and others v. Muhammad Abrar Ahmed Qureshi through Attorney and others 2020 CLC 1857 rel.

Gohar Ayub v. Muhammad Shafiq 2015 YLR 163; Qazi Laeeq v. Najeebur Rehman and others 2012 MLD 50; Haji Shah Nawaz Ranjha and another v. Punjab Small Industries Corporation, through Regional Director, Sargodha and 4 others 2007 CLD 1637; WAPDA through Chairman, Lahore v. Muhammad Sanaullar Khan through Legal Heirs and another 2003 CLC 737 and Mst. Mahmooda Begum v. Muhammad Iqbal 1989 MLD 311 distinguished.

(b) Limitation---

----Limitation runs from the date of knowledge.

(c) Administration of justice---

----Decision should be rendered on merits rather than rights being sacrificed at the altar of procedures, technicalities and rigors of rules---Courts may deny relief to those who have been indolent to safeguard their rights or abused process of law by delaying legal proceedings.

Malik Fazal Karim Awan for Petitioner.

Ch. Muhammad Tanveer Ansari for Respondents.

2023 M L D 1182

[Lahore]

Before Ahmad Nadeem Arshad, J

ZULFIQAR ALI---Appellant

Versus

AHMAD NAWAZ---Respondent

F.A.O. No. 32850 of 2021, decided on 2nd July, 2021.

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

----O. XX, R. 5---Judgment---Decision on each issue---Principle---Mandate of law is to discuss all material and controverted points in judgment---If a judgment discusses all points raised it fulfills the requirement of law even though it may not have discussed each issue separately.

Qadir Bakhsh (Deceased) through L.Rs. v. Allah Dewaya and another 2011 SCMR 1162 rel.

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

----O. XXXVII, R. 4---Suit for recovery of money on the basis of promissory note---Ex parte decree, setting aside of---Appellant/defendant sought setting aside of ex parte judgment and decree passed by Trial Court against him---Trial Court set aside the application on the ground that appellant/defendant after joining proceedings absented himself and suit was decreed on the basis of un-rebutted evidence produced by respondent/plaintiff---Validity---Appellant/defendant while admitting execution of promissory note and receipt, took a stance that promissory note was executed as a surety that he would not divorce sister of respondent/plaintiff---Appellant/ defendant himself slipped away/absented from trial and his right to produce evidence was closed by Trial Court---Nothing was available on record to rebut stance of respondent/plaintiff---High Court declined to interfere in order passed by Trial Court as there was no illegality or material irregularity in findings recorded by Trial Court, nor there was any misreading or non-reading of any law or evidence---Appeal was dismissed, in circumstances.

Ghulam Muhammad v. Abdul Qadeer and others 1989 MLD 124; 1990 ALD 623; Nazam Din and others v. Halal Din and others 1992 MLD 510; Maj. Pervez Shakoor and 4 others v. Muhammad Usman 1991 MLD 536; Ali Muhammad v. Muhammad Hayat and others 1982 SCMR 816; Mst. Tahira Taj v. Karim Shah 2011 CLC 950; Muhammad Yousaf v. Abdul Majeed PLD 1993 Lah. 244 and Shahid Pervez alias Shahid Hameed v. Muhammad Ahmad Amin 2006 SCMR 631 rel.

Ch. Imran Masood for Appellant.

Mian Tariq Hussain for Respondent.

2023 M L D 1197

[Lahore]

Before Ch. Muhammad Iqbal, J

IMRAN AHMAD KHAN NIAZI---Petitioner

Versus

Mian MUHAMMAD SHAHBAZ SHARIF---Respondent

C.R. No. 76628 of 2022, decided on 7th December, 2022.

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

----Ss. 4 & 9---Civil Procedure Code (V of 1908), O. XI, Rr. 7, 8, 9 & 21---Suit for recovery of damages---Interrogatories---Answers, non-filing of striking out defence--- Suit was filed against petitioner/defendant for recovery of damages---Trial Court struck out defence of petitioner/defendant as he failed to file answers to interrogatories despite having been given many opportunities in that regard---Validity---Petitioner/defendant failed to file objections on the interrogatories within the period stipulated in O. XI, R. 7, C.P.C, therefore, Trial Court rightly overruled the objections filed by him--- Court had the jurisdiction to regulate trial proceedings of a case, in order to eliminate abuse of process of law by adhering to all fairness in trial proceeding---Trial Court should always endeavor to conclude trial within reasonable span of time---Petitioner/defendant was granted ample opportunities but he failed to file answers and any grant of further opportunity would be an express abuse of process of law and same was not permissible---Trial Court was empowered to non-suit a plaintiff for any default on its part and there was no reason to oblige petitioner/defendant with numerous opportunities of adjournments on one pretext or the other without any justiciable reason causing unreasonable delay in deciding the lis---Courts have inherent powers to curb unnecessary delay for the ends of justice or to prevent abuse of process of law---Trial Court while invoking provision under O. XI, R. 21, C.P.C. rightly struck out right of defence of petitioner/ defendant---High Court declined to interfere in the order of striking out of defence as petitioner/defendant did not point out any illegality or material irregularity in the orders passed by Trial Court and also not identified any jurisdictional defect---Revision was dismissed, in circumstances.

Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Limited and another 2008 SCMR 1148 and Haroon Ahmed and others v. Secretary Communication and Works Department and another 2015 MLD 1220 rel.

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

----O. XI, Rr. 8, 9 & 21---Interrogatories, answers to---Order of Court---Nature---Provisions of O. XI, Rr. 8 & 9, C.P.C. are mandatory in nature as penal action has been provided in O. XI, R. 21, C.P.C., which speaks about striking out of the defence.

2023 M L D 1210

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

SHAHID MEHMOOD and others---Petitioners

Versus

DISTRICT COLLECTOR/LAND ACQUISITION COLLECTOR and others---Respondents

W.P. No. 2439 of 2021, decided on 17th November, 2022.

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

----S. 4--- Acquiring of land---Failure to complete acquisition proceedings within reasonable time---Effect---Petitioners assailed the notifications issued under S. 4 of the Land Acquisition Act, 1894, on the ground that no further proceedings had been carried out by the respondents since the issuance of the notifications---Validity---After issuance of notifications under S. 4, no further step had been taken by the respondents---To this effect, a report was also requisitioned from the Collector wherein no valid justification was available as to why no further action was initiated by the respondents after the issuance of the notifications under S. 4 despite lapse of several years---Even in the absence of any time frame in S. 4, the respondents were obliged to take further steps for the purpose of acquisition within reasonable time, which in no case should exceed one year from the date of issuance of notification---Constitutional petitions were accepted and the impugned notifications were set aside.

Commissioner Inland Revenue Legal Division, RTO III Karachi v. Yasmeen Bano and 3 others 2020 SCMR 1120 and Federal Land Commission through Chairman v. Rais Habib Ahmed and others PLD 2011 SC 842 ref.

Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806 and Qasim Ali and 2 others v. Province of Punjab through Secretary, Irrigation Department, Lahore and 4 others 2021 YLR 1261 rel.

Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881; Bahadur Shah and 6 others v. Acquisition Collector VI, Terbela Dam, Tehsil Haripur and 2 others 1995 SCMR 1077 and Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512 distinguished.

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

----S. 4---Acquiring of land---Completion of acquisition proceedings within reasonable time--- Scope--- Law is always based on reasonableness and if no time is prescribed under the law for performing an act, it does not mean that the executive should sleep over the matter and put the citizens in agony of waiting the outcome of proceedings resulting into offending their property rights in the garb of acquisition.

Qasim Ali and 2 others v. Province of Punjab through Secretary, Irrigation Department, Lahore and 4 others 2021 YLR 1261 rel.

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

----Ss. 4 & 5-A---Constitution of Pakistan, Arts. 24 & 173--- Protection of property rights---Power to acquire property and to make contracts---Acquiring of land---Hearing of objections---Scope---Person cannot be deprived of his property in the ordinary circumstances---Law, however, provides a departure and permits to acquire the property of any person for a public purpose and after payment of due compensation as ordained under the relevant law---Article 173 of the Constitution bestows power upon the executive to acquire property on behalf of Federal Government or the Provincial Government subject to any Act of the appropriate Legislature---On the strength of the above referred constitutional provisions, Land Acquisition Act, 1894, comes into play, which deals with the acquisition of land needed for public purpose and for companies and for determination of the amount of compensation to be paid on account of such acquisition---Part II of the Land Acquisition Act, 1894, deals with the acquisition---Section 4 authorizes the Collector of the District to issue a notification whenever it appears to him that land in any locality is needed or likely to be needed for any public purpose or for a Company---When a particular land is needed for any public purpose or a Company, the Commissioner or the Provincial Government as the case may be, if satisfied after considering result of the survey, if any, made under subsection (2) of S. 4, or if no survey is necessary, at any time, that any particular land included in a locality notified under subsection (1) of S. 4 is needed for public purpose or a Company, as the case may be, a notification to that effect shall be published in the official Gazette, stating the District or other territorial division in which the land is situated, the purpose for which it is needed, its appropriate area and situation, and where a plan has been made of the land, the place where such plan may be inspected, and the Collector shall cause public notice to be given of the substance of the notification at convenient places on or near the land to be acquired---After the issuance of notification under S. 5-A of the Land Acquisition Act, 1894, any person interested in any land, which has been notified thereunder may within 30 days after the issuance of notification object to the acquisition of land or any land of the locality as the case may be.

Syed Zulfiqar Abbas Naqvi for Petitioners.

Malik Abdul Aziz Awan, Additional Advocate General, Punjab and Ms. Amna Ali, Assistant Advocate General, Punjab for Respondents Nos. 1 to 3.

Amna Warsi and Ayesha Warsi for Respondents Nos. 4 to 6.

Malik Muhammad Siddique Awan, Additional Attorney General for Pakistan for Respondent No. 7.

2023 M L D 1245

[Lahore]

Before Muzamil Akhtar Shabir and Ch. Muhammad Iqbal, JJ

PROVINCE OF PUNJAB through Director General Excise, Taxation and Narcotics Control Department Punjab and 2 others---Appellants

Versus

RAMZAN SUGAR MILLS LIMITED through Authorized Officer---Respondent

I.C.A. No. 843 of 2023, decided on 11th January, 2023.

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

----S. 3---Punjab Excise Act (I of 1914), S. 15---Intra Court Appeal---Maintainability---"Original order"---Scope---Department assailed order passed by Single Judge of High Court whereby it was directed to issue license to the respondent-company to install a distillery plant for production of rectified spirits and low grade spirit with the capacity of 125000 liter per day---Respondent contended that remedy of appeal was provided against such order under Ss. 14 & 15 of the Punjab Excise Act, 1914---Department argued that the words "Board of Revenue" appearing in S. 15 of the Punjab Excise Act, 1914, had been deleted by the Governor of Punjab through a notification, hence the Board of Revenue had no jurisdiction to adjudicate the matter---Validity---Act/Statute could not be amended through notification or subordinate enactment as such the aforesaid provisions were still operative or in field until and unless the same were repealed by a proper legislation---Application of the respondent was still pending before the department and against such inaction, the respondent had filed a Constitutional petition---Relevant order might not necessarily be the one which was under challenge but the test is whether the original order passed in the proceedings is subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed or not---Apparently the meaning of the expression "original order" was the order with which the proceedings under the relevant statute commenced---Availability of remedy of an appeal, revision or review was not restricted to only the impugned order passed in the Constitutional petition rather it extended to the basic original adverse order as well irrespective of the fact whether the said remedy was explored or otherwise, as such Intra Court Appeal was not maintainable--- Appeal was dismissed.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 rel.

Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong PLD 1970 SC 439; Additional Collector, Sales Tax, Lahore and another v. Rupafab Limited and others 2001 PTD 2383; Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 SCMR 630; Farrukh Raza Sheikh v. The Appellate Tribunal Inland Revenue and others 2022 PTD 1467; Muhammad Tayyab Bukhari and others v. Dr. Anees-ur-Rehman and others 2022 SCMR 1913 and SME Bank Limited through President Islamabad and others v. Izhar ul Haq 2019 SCM R 939 ref.

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

----S. 3--- Intra Court Appeal--- Maintainability--- Proviso to subsection (2) of S. 3 of the Law Reforms Ordinance, 1972 provides that when a remedy of appeal, review or revision against the original order is available before any Court, Tribunal or Authority, then Intra Court Appeal is not maintainable.

----An Act/Statute cannot be amended through notification or subordinate enactment.

Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong PLD 1970 SC 439; Additional Collector, Sales Tax, Lahore and another v. Rupafab Limited and others 2001 PTD 2383; Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 SCMR 630; Farrukh Raza Sheikh v. The Appellate Tribunal Inland Revenue and others 2022 PTD 1467 and Muhammad Tayyab Bukhari and others v. Dr. Anees-ur-Rehman and others 2022 SCMR 1913 ref.

Ahmad Awais, Advocate General Punjab, Tipu Salman Makhdoom, Additional Advocate General, Ms. Aalia Ejaz, Additional Advocate General, Rai Shahid Saleem Khan, Assistant Advocate General and Muhammad Akbar Baba, Assistant Advocate General for Appellants.

Salman Aslam Butt for Respondents.

2023 M L D 1255

[Lahore]

Before Jawad Hassan, J

FAISALABAD ELECTRIC SUPPLY COMPANY and 3 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

W.P. No. 70488 of 2022, heard on 15th February, 2023.

(a) Electricity Act (IX of 1910)---

----Ss. 26 & 26A---Dispute over electricity bill---Electric Inspector, jurisdiction of---Scope---Suit for declaration and permanent injunction along with application for temporary injunction filed by the consumer in Civil Court against the Electric Supply Company---Maintainability---In light of Ss. 26 & 26A of the Electricity Act, 1910, the Electric Inspector is the competent authority to resolve the disputes if they arise between a licensee and a consumer regarding the meter, maximum demand indicator or other measuring apparatus being not correct---In such like matters the Civil Court has no jurisdiction and only the Electric Inspector has the power to take cognizance thereof---Constitutional petitions were allowed.

Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others PLD 2012 SC 371; GEPCO and others v. Pakistan Television Corporation Limited and others PLD 2018 Lah. 399 and Koray Khan v. Manager Operations, MEPCO and others 2020 MLD 1981 ref.

(b) Administration of justice---

----Where procedure had been provided for doing a thing in a particular manner then same should be done in that manner alone and not in any other way or it should not be done at all; otherwise it would be considered non-compliance of the legislative intent and would be deemed illegal.

Abdul Khaliq Mandokhel v. Chairman, Balochistan Public Service Commission 2016 PLC (C.S.) 1184; Falak Niaz v. Amal Din 2016 YLR 2047; Sabz Ali Khan v. Inspector General of Police, KPK 2016 YLR 1279; Cantonment Board Clifton v. Sultan Ahmed Siddiqui 2016 CLC 919 and Federation of Pakistan v. Asad Javed PLD 2016 Isl. 53 ref.

Barrister Muhammad Ahmad Pansota for Petitioners.

Muhammad Salman Idrees for Respondents.

2023 M L D 1298

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Ch. Abdul Aziz, JJ

MUHAMMAD FAISAL---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 76 and Murder Reference No. 14 of 2020, decided on 14th September, 2022.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- First Information Report lodged with promptitude---Accused was charged for committing murder of the brother of the complainant by inflicting Toka blows---Record showed that the incident took place at 08:00 a.m. and immediately thereafter the victim was taken to DHQ Hospital in a precarious injured condition and reached there at 08:15 a.m.---Shortly thereafter, Police Official also arrived in Hospital and the detail of crime was furnished to him by complainant through oral statement recorded at 8:45 a.m.---Imparting of information of occurrence within 45-minutes unambiguously indicated about the presence of eye-witnesses at the spot---Registration of FIR with extreme promptitude and that too upon the statement of an eye-witness was sufficient to establish his presence at the place of homicide---In addition, Investigating Officer reached DHQ Hospital within 30-minutes and found both the eye-witnesses in attendance---Idea of procuring the presence of a false eye-witness in such short span of time borrowed no logic---Circumstances established that the prosecution had succeeded in proving its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Muhammad Ahmad and another v. The State and others 1997 SCMR 89 rel.

(b) Criminal trial---

----Related witnesses---Scope---Mere relationship of a witness with the deceased cannot oust him from the Court so as to be rendered unworthy of credence---For holding an eye-witness as interested, the defence has to demonstrate that he is inimically placed against the accused, and that there is every likelihood of false implication for satisfying pre-existing grudge or vengeance.

Iqbal alias Bhalla and 2 others v. The State 1994 SCMR 1 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Natural witness---Accused was charged for committing murder of the brother of the complainant by inflicting Toka blows---While adjudging the presence of the eye-witnesses at the crime scene, it was not a sheer coincidence but an outcome of their ordinary pursuit of business---Complainant and eye-witness used to supply chicken in vegetable market through a vehicle and at the eventful time they claimed their presence at the spot out of their normal routine---Both the eye-witnesses were cross-examined in that regard but they remained in unison with each other by deposing that it was their schedule to reach vegetable market in the early hours of morning---Though the defence made an attempt to prove that complainant had his abode in another District but it remained abortive---However, it was satisfactorily proved during trial that complainant along with his slain brother was residing in District "J"---Accused contended that the narrators of ocular account were chance witnesses and the tale of incident so put forth by them was suspect evidence but after perusing the record with due circumspection, Court had all the good reasons to differ with such submissions---There was no denial from the defence about the eye-witnesses as chicken supplier---As a necessary consequence, arrival of eye-witnesses at the crime scene was by no stretch an outcome of twist of fate so as to dub them as chance witnesses---Legally speaking, even the evidence of a passerby, who successfully explains his presence at the spot, could not be discarded by describing him a chance witness---Both the eye-witnesses provided the detail of incident with extreme unanimity and differed not even at the minutest level---No conflict was found from the deposition of both the eye-witnesses about routine of their business, arrival in the vegetable market, the time of unfortunate incident, the reason which formed basis of crime, the weapon used in the occurrence and the locales of injuries endured by the victim---Likewise, no anomaly was discernable from record regarding shifting of victim to hospital in injured condition, arrival of police at the hospital and recording of the statements of eye-witnesses---Though the deceased received seven injuries out of which five were serious in nature but still none of them was attributed to brother of the accused, who was stated to be present at the crime scene---On one hand the foregoing fact gave a clue that the eye-witnesses did not have any special reasons to falsely implicate the accused in the case and on the other hand it reflected positively upon the regard they had about the truth of their deposition---Had the witnesses any axe to grind against the family of accused, they would have attributed one or two injuries to brother of accused, who was not even summoned to face the trial---Defence though argued that deceased and complainant were sharing the common blood line but still the former made no effort to save his brother through an intervention and on that score questioned their presence, however, the Court was least convinced from such submission when seen in the context that accused was at the peak of aggression and had gone berserk while mounting the assault upon deceased as was evident from the nature and number of injuries inflicted by him---Intervention by the witnesses vividly would have made them vulnerable to the receipt of similar treatment, endangering even their own lives---Lastly non-citing of a witness from the vicinity of crime scene was also not a factor to disbelieve the prosecution case as a neutral person always opted not to poke his nose in the enmity of others and instead was reluctant to becoming a witness of crime---Thus, all the good reasons existed to hold that the depositions of eye-witnesses inspired confidence and their presence at the spot was proved beyond speck of any ambiguity--- Circumstances established that the prosecution had succeeded in proving its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Javaid Ahmad alias Jaida v. The State and another 1978 SCMR 114 and Imran Ashraf and 7 others v. The State 2001 SCMR 424 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Weapon of offence recovered on the disclosure of accused---Reliance---Accused was charged for committing murder of the brother of the complainant by inflicting Toka blows---Accused was arrested in the case on 30.04.2019 and during investigation he made disclosure on 05.05.2019 and in pursuance whereof got recovered cleaver knife/Toka from the residential room of his house---Recovery proceedings were witnessed by witnesses who furnished their impeccable details, giving rise to no doubt of any nature---Weapon of offence after its recovery was forwarded to Forensic Science Agency and through report it was reported to be stained with human blood---Recovery of cleaver knife was challenged on the solitary ground that it was effected without adhering to the provisions of S. 103, Cr.P.C.---While embarking upon the arguments of defence, same were found to be contrary to the facts of the case and law on the subject---Since the recovery of cleaver knife was effected on the disclosure and pointation of the accused, thus was relevant under Art. 40 of Qanun-e-Shahadat, 1984---Such recovery attains credence and admissibility if witnessed by two witnesses, not necessarily having abode in the same neighborhood from where it was effected---Wisdom behind acceptance of such recovery had its roots in the fact that it was discovered from a place within the exclusive knowledge of none other than the accused---Circumstances established that the prosecution had succeeded in proving its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Sh. Muhammad Amjad v. The State PLD 2003 SC 704 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive proved---Brutality of murder---Accused was charged for committing murder of the brother of the complainant by inflicting Toka blows---Motive was described as delayed arrival of the deceased at his work place which irked the accused who went violent to the extent of taking the life of an innocent young boy aged 17-years---Weakness of motive or failure of prosecution to prove it, lost significance in a barbarous murder incident like the instant one and the convict deserved no leniency in the quantum of sentence---Weakness of motive or failure of prosecution to prove it could admittedly be made basis for having resort to alternate sentence of imprisonment for life provided in S. 302(b), P.P.C., but such rule was not inflexible and deviation could be made from it if the deceased was done to death with display of brutality---Circumstances established that the prosecution had succeeded in proving its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Mumraiz v. The State 2011 SCMR 1153 rel.

Muhammad Imran Chaudhry and M. Shakeel Tarique for Appellant.

Ch. Shehzad Ahmad Gondal for the Complainant.

Ms. Memoona Ehsan-ul-Haq, DDPP with Muhammad Latif, SI for the State.

2023 M L D 1329

[Lahore (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

Mst. ZAINAB (DECEASED) through L.Rs. and others---Petitioners

Versus

WAHID BUKHSH and others---Respondents

R.S.A. No. 02-2015/BWP, decided on 23rd November, 2021.

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

----Arts. 79, 100 & 129(g)--- Original document not produced---Secondary evidence not properly produced---Thirty years old document losing its sanctity---Suit property was state land which was originally allotted to "Y" and "A" from whom the predecessor in interest of appellants/defendants ("G") purchased the same through agreement to sell---"G" entered into agreement to sell with the respondents/plaintiffs with the condition that the respondents would pay the rest of the installments due regarding the allotment of the land ("G" had paid only 2 instalment)---Respondents/plaintiffs alleged that they paid all the instalments due to "Y" and "A" and that they were owners in possession of the land since then without any interruption---"G" filed an ejectment application before Assistant Commissioner/ Revenue Court which had dismissed the same declaring that "G" could not prove himself as the owner of the land---"G" filed suit (earlier suit) for specific performance against "Y" and "A" which was decreed by Trial Court---Respondents filed the present suit against "G" which was dismissed by Trial Court---Appellate Court reversed the judgment of Trial Court---Appellants/defendants contended that the respondents filed the suit on the basis of agreement to sell, which was neither executed by "G" nor had any agreement to sell settled between the parties; that on the said date "G" had no status in the property; that he purchased half share from "Y"; that document exhibited was a premature agreement to sell and was a fictitious/forged document; that original document had not been produced and the copy produced before the court was inadmissible to be considered in evidence; that no witness of the said document had been produced before the court; that witnesses who merely certified that the copy was issued with a signature, could be said to be the witness of that document; that claim on the basis of revenue proceedings could not be considered to ascertain the ownership of any party; that the proceedings of the revenue department could not be taken into consideration for the confirmation of any title of the property; that respondents had knowledge of the litigation between "G" and "Y" and "A" which was decreed in favour of "G" and on the basis of the same, the mutation was sanctioned; that respondents neither tried to be the party in the said litigation nor did they file any application under S. 12(2), C.P.C.; that respondents' claim was based on alleged document of year 1964, hence the suit was time barred---Validity---Original document, i.e. alleged agreement to sell had not been produced before the court and it was mentioned in the evidence that whereabouts of that document were not known---Said document was never produced before any legal forum---One of the respondents was 05/06 years of age at the time of completion of that document and his brother being another respondent was 01 year younger than him---Record showed that father of respondents died---Existence of the alleged agreement to sell came into their knowledge---Certified copy issued from the revenue department was produced in the Court where signatures of "G" were missing---No allotment letter or any other title document relating to the property was produced---Alleged agreement to sell was not a valid contract, as the status of "G" was not settled in any way in the revenue record relating to the land---Mere agreement to sell would not create any title---At the time of writing of alleged agreement, "G" was not legally in a position to enter into an agreement for the same property---Photocopy/secondary evidence was not produced in the court as per law---Nothing was stated by the respondents/plaintiffs regarding the fact that whether they were alive or not---When no procedure was adopted for the production of the document as secondary evidence, no efforts were made for proving of the same, such document would lose its sanctity even being a 30 years old document---Statement of witness regarding contents of the said document was not reliable as his information was based on hearsay evidence---In financial disputes, the evidence of blood/close relative/dependent was not admissible, unless proved that they were present at the place and there was no other independent witness available---Revenue hierarchy had no jurisdiction to decide the matter of ownership---Proceedings of Revenue Authorities even could not be taken into consideration for the purpose of ascertaining the ownership of the parties---If time was not essence of the contract which would be ascertained from the terms of the agreement and from the other attending circumstances---Respondents could file application under S. 12(2), C.P.C. to get the decree in favour of "G" set-aside when they came to know about the decree, but they did not---Appeal was allowed with costs throughout.

Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957; Gulzar Ahmad and others v. Muhammad Anwar and others 2003 SCMR 1008; Sarfraz Ahmad v. Rab Nawaz and others 2012 MLD 242; Muhammad Idrees Jag v. Mst. Unezah Shahid and another 2004 MLD 1033; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Manzoor Hussain v. Haji Khushi Muhammad 2017 CLC 70; Aijaz Ahmad v. Muhammad Ashiq and 3 others 2017 CLC Note 5 and Nazeer Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639 rel.

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

----Art. 100---Presumption of truth---Duty of the Court---Procedure---Thirty years old document that was presumed to be true, but merely on the basis of such presumption, Court could not decide the fate of fixing of future liability---When there were rules, court had to observe all those rules, if otherwise, the court would explain why those rules were overlooked.

Hussain Bakhsh and 5 others v. Mst. Bashiran through General Attorney PLD 2010 Pesh. 91 and Abdul Aziz v. Muhammad Ashiq and others 1991 CLC 820 rel.

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

----S. 9---Jurisdiction---Lower Appellate Court observed the agreement to sell to be a proved document and connected the same with the proceedings of the revenue department---Scope---High Court held that proceedings of revenue hierarchy could be considered only to the extent of the jurisdiction of the concerned revenue court and that the proceedings were for the specific purpose so the same could only be considered for that specific purpose.

Qamar Hameed Hashmi and Shabir Ahmad Malik for Petitioners.

M. Karim Joiya and Ahmad Mansoor Chishti for Respondents.

Mian Muhammad Shahid Akhtar, Assistant Attorney General and Malik Shah Nawaz Kalyar, A.A.G.

2023 M L D 1357

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

NOOR MUHAMMAD and others---Petitioners

Versus

Mst. SUKHAN (DECEASED) through LRs. and others---Respondents

Civil Revision No. 1266 of 2002, decided on 7th September, 2021.

(a) Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss. 3 & 5---Inheritance---Custom---Limited owner, termination of---Properties of deceased/predecessor in interest of parties was mutated only in favour of "A1" son of "A" (1st son of predecessor) as per custom---After death of "A1", the same was inherited by his mother "A2"---After her death, properties were inherited by "B1", "B2", "B3" and "B4" being legal heirs of "B" (2nd son of predecessor); and by "C1" being legal heir of "C" (3rd son of predecessor)---After death of "C1", his property was inherited by his widow "C1a" and his daughter "C1b"---Suit for declaration, challenging all mutations, was instituted by legal heirs of "E" (5th son of predecessor) against legal heirs "B1", "B2", "B3", "B4", "C1a" and "C1b" claiming inheritance from the legacy of "A" contending that "A2" was limited owner and they had right to inherit her property; that had right to inherit from the legacy of "C1"; and had right in the property of tamleek whereby "B4" gifted his property to his daughter---Trial Court had cancelled mutation of "C1" and delivered 1/3 share to "B4" being uterine brother of "C1"---Appellate Court decided that after distribution of due shares of "C1a" and "C1b", shares may be distributed among other heirs of "C1" but "B1" should inherit nothing---Both parties filed their separate revision petitions---Validity---Held, that in accordance with S. 3 of Muslim Personal Law (Shariat) Application Act, 1948, on termination of limited owner of female ("A2") inheritance was opened at the time of death of last male owner (A1) and successors of propositus were entitled to inherit---Plaintiffs not being legal heirs of "B4", had no locus standi to challenge tamlik/gift made by "B4"---Property held by the lady by operation of law reverted/return to last full owner "A" and his legal heirs were entitled to receive their respective shares---Property was to be distributed amongst his legal heirs according to the following shares: "A2" (widow) = 4/32; "A3" (daughter) = 7/32; "A4" (daughter) = 7/32; A1 = 14/32---On death of "A1", his property was to be shared by the following: "A2" (mother) = 1/3; "A3" and "A4" = 2/3---No property was left for distribution amongst lineal defendants---Plaintiffs had neither legal heirs of "C1" any of the said shares nor had any right to challenge the validity of mutations---"C1" had a child (daughter), therefore, his uterine brothers had no right of inheritance from his legacy---Perusal of mutation showed that "C1a" and "C1b" were given 1/8 and 7/8 shares from legacy of "C1" which was incorrect---Instead, "C1a" would get 1/8; "C1b" would get 1/2 (3/8); and rest of 3/8 share would go to paternal uncle's sons of "C1"; and mutation was ordered to be liable to be corrected---Plaintiffs failed to bring on record death certificates of such persons, hence entitlement of paternal uncle's sons could not be decided at present stage---Judgments/decrees of Courts below were modified---Divergent revision petitions of both parties were disposed of accordingly.

(b) Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)---

----Preamble---Custom---Islamic law---Applicability---Property which came to a person under custom at once became subject to Muslim Law on passing of Muslim Personal Law (Shariat) Application Act, 1948, which introduced distribution of property on Muslim heirs in accordance with Muslim Law.

(c) Islamic law---

----Inheritance---Terms "full brother/sisters", "uterine brother/sister" and "consanguine brother/sister"---Connotation---"Full Brother and Sisters" means their father and mother are same---"Uterine Brother and Sister" means their mother is same but their father is different---"Consanguine Brother and Sister" means their father is same but their mother is different.

(d) Islamic law---

----Inheritance--- Uterine brother/sister, share of---Condition precedent---Uterine brother/sister would get share from the legacy of deceased as sharer only when the deceased had no child, child of a son, father or true grandfather.

Mian Tahir Iqbal for Petitioners.

Ch. Abdul Ghani and Ms. Farzana Yaseen for Respondents.

2023 M L D 1372

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

Mst. SHAMIM AKHTAR and others---Appellants

Versus

MUHAMMAD YOUNIS KHAN and others---Respondents

R.S.A. No. 62 of 2018, heard on 13th September, 2022.

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

----O. VI, R. 4---Pleadings---Fraud---Particulars of fraud are to be explicitly stated in pleadings.

Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151 rel.

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

----S. 27(b)---Specific performance of agreement to sell immovable property--- Subsequent vendee/purchaser, duty of--- Subsequent vendee/purchaser has to establish by discharging initial onus that (i) he has acquired property for due consideration and is a transferee for value and his purchase is for the price paid to vendor and not otherwise; (ii) there was no dishonesty of purpose or tainted intention to enter into the transaction while acting in good faith and (iii) he had no knowledge or notice of original sale agreement between earlier vendee and vendor at time of his transaction with the latter.

Hafiz Tassaduq Hussain v. Lal Khatoon PLD 2011 SC 296 and Bahar Shah and others v. Manzoor Ahmad 2022 SCMR 284 rel.

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

----S. 12---Civil Procedure Code (V of 1908), S. 100---Second appeal---Principles---Suit for specific performance of agreement to sell---Judgments at variance---Appellants/plaintiffs sought specific performance of agreement to sell which suit was decreed in their favour---Lower Appellate Court reversed findings and set aside judgment and decree passed by Trial Court---Validity---Where judgments of Courts below were at variance and High Court was hearing second appeal, preference should be given to judgment of Lower Appellate Court---Such principle of law does not entail its universal application and is not an impregnable and invariable rule of law---Finding of Lower Appellate Court is immune from interference in second appeal if the same is supported and substantiated by logical reasoning and proper appreciation of evidence and is not result of misreading and/or non-reading of evidence---Where findings of Lower Appellate Court are at variance with that of Trial Court, the two will come in for comparison of their merits in light of the facts of the case and the reasons of which the two different and contradictory, if not opposing, findings are respectively proceeded---If judgment of Lower Appellate Court is arbitrary or capricious, it can be rejected---Lower Appellate Court had gone against the weight of available evidence in holding that execution of agreement was not proved although plaintiffs/appellants were steadfast, consistent and unwavering in their stance not only in their pleadings about execution of agreement and receipt but also in their deposition and cross-examination---On the contrary, defendants/respondents did not put any serious challenge to version of plaintiff's witnesses and had made evasive denial of execution of agreement leading to improvement of case through recording evidence beyond pleadings vacillating from one position to another without being able to substantiate either--- High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Second appeal was allowed, in circumstances.

Mumtaz Khan and 8 others v. Haji Nawab Khan 2003 MLD 399; Nazir Abbas through L.Rs. v. Ghulam Muhammad through L.Rs. 2017 CLC 996 and Liaqat Ali v. Muhammad Ashraf and others 2016 YLR 551 ref.

Bahar Shah and others v. Manzoor Ahmad 2022 SCMR 284 and Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 rel.

Qaiser Amir Khan for Appellants.

Proceeded against ex-parte vide order dated 13.12.2021 for Respondents Nos. 1 to 4.

Syed Khalid Javaid Hussain Shah for Respondents Nos. 5 to 47.

2023 M L D 1396

[Lahore]

Before Sardar Ahmed Naeem, J

ZAHID MEHMOOD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 64960-B of 2021, decided on 17th November, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 419, 420, 506, 353 & 186---Cheating by personation, cheating and dishonestly inducing delivery of property, criminal intimidation, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions---Pre-arrest bail, cancellation of---Record showed that the complainant or the witnesses had no reason to falsely implicate the petitioner---Complainant and witnesses stood by their statements recorded under S. 161, Cr.P.C.---No ill-will or animosity was attributed to any of them---Deep analysis of the evidence was forbidden at bail stage---Admittedly, no pre-arrest bail could be granted on the basis of pleas structured on parallel stories and bald assertions---Act of quackery was not only against society rather humanity, thus, bail matter in such like cases should be decided by the Court with dynamic approach---Above all, no mala fide lurking behind arrest of the petitioner was hinted at by him, a sine qua non for pre-arrest bail--- After collecting sufficient/convincing material, Investigating Agency confirmed involvement of the petitioner in the case, thus, the petitioner failed to make out a case for confirmation of ad-interim pre-arrest bail---Petition was dismissed, in circumstances and ad-interim pre-arrest bail earlier granted to the petitioner was recalled.

Muhammad Saqlain for Petitioner with the Petitioner.

2023 M L D 1405

[Lahore]

Before Shahid Bilal Hassan, J

Mst. LIAQAT SULTANA and others---Petitioners

Versus

Mst. MUMTAZ TAHAWAR and others---Respondents

Civil Revision No. 64976 of 2020, decided on 26th October, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Civil Procedure Code (V of 1908), S. 115---Suit for declaration and injunction---Gift---Proof---Onus to prove---Not party to proceedings---Effect---Concurrent findings of two Courts below---Dispute was with regard to gift regarding suit property allegedly made on the basis of fraud and misrepresentation---Validity---Ingredients for a valid gift were offer, acceptance and delivery of possession---When sanctity of gift was challenged or called into question, especially on the basis of fraud and misrepresentation, beneficiary not only had to prove valid execution of gift deed or mutation but also the original transaction---Owner of a portion of suit property was not impleaded as party to the suit and was not provided with an opportunity to defend himself---No adverse order could be passed against such owner as it would amount to condemning him unheard---Free and fair opportunity of defending and presenting one's case was to be provided---High Court declined to interfere in judgments and decrees passed by two Courts below as no illegality and irregularity was committed---High Court in exercise of revisional jurisdiction under S. 115, C.P.C. could not disturb concurrent findings of facts by two Court below when the same did not suffer from any misreading or non-reading of evidence---Revision was dismissed, in circumstances.

Peer Baksh through LRs and others v. Mst. Khanzadi and others 2016 SCMR 1417 ref.

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; Muhammad Farid Khan v. Muhammad Ibrahim and others 2017 SCMR 679; Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13 and Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21 rel.

Sheikh Naveed Shehryar, Sh. Usman Karim-Ud-Din and Humaira Bashir Chaudhry for Petitioners.

Tahir Nasrullah Warraich, Rizwan Khalid and Zahir Abbas for Petitioners (in C.R. No.64972 of 2020).

Muhammad Azam Chughtai for Petitioner (in C.R. No.9062 of 2021).

Muhammad Naveed Khan for Petitioner (in C.R. No.4430 of 2021)

Farooq Amjad Meer, Zulfiqar Ali Khan and Mian Ijaz Latif for Respondents Nos.1 to 3 (in C.R. No.64976 of 2020).

Muhammad Naveed Khan for Respondent No. 5 (in C.Rs. Nos.64972 and 64976 of 2020).

Rana Zia Abdul Rehman, M. Shakeel Gondal, Rana Fahad Zia, Rana Muhammad Usman and Rana Shahzad for Respondents Nos.7 and 8 (in C.R. No.64976 of 2020).

Ms. Farzana Abbas for LDA (in C.R. No.64972 of 2020).

2023 M L D 1445

[Lahore]

Before Asim Hafeez, J

SHAHIDA PERVEEN---Petitioner

Versus

PROVINCE OF PUNJAB through District Officer Revenue, District Mandi Baha-ud-Din and others---Respondents

Civil Revision No. 460 of 2009, decided on 21st September, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 115---Suit for declaration and injunction---Relationship with deceased, determination of---Additional evidence---New ground---Concurrent findings of facts by two Courts below---Petitioner claimed to be daughter of deceased owner of suit property---Trial Court and Lower Appellate Court concurrently did not find petitioner as daughter of deceased owner of estate---Validity---High Court did not allow application for additional evidence by way of DNA testing, as such application was not filed before Trial Court and Lower Appellate Court---Such application lacked bona fides and the plea was unwarranted---Principle of preponderance of probability, in wake of totality of evidence, was against petitioner---Upon applying test of prudence, High Court firmly believed that existence of relationship inter se petitioner and deceased owner of estate was not established and such fact remained disproved---High Court did not review findings pertaining to sect of deceased owner as no evidence was led in such regard---High Court declined to interfere or upset/ reverse concurrent decisions, in exercise of revisional jurisdiction, as there was no illegality or irregularity pointed out in exercise of jurisdiction---Revision was dismissed, in circumstances.

Abdul Latif v. Additional District Judge, Kasur and 4 others 2016 CLC 1553; Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24; Syed Sharif Ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others 2012 SCMR 1258; Rafique Ahmed v. Ashok Kumar and 5 others 2017 CLC 317; Muhammad Ramzan v. The State PLD 2007 Kar. 1; Commissioner Multan Division, Multan and others v. Muhammad Hussain and others 2015 SCMR 58; F.M.C. United (Pvt.) Ltd. v. P.O.P 2009 PCr.LJ 1319; Sharafat Ali Ashraf v. Additional District Judge, Bahawalpur and 3 others 2008 SCMR 1707; Ghulam Zohra and 8 others v. Nazar Hussain (deceased) through his legal heirs 2007 SCMR 1117; Shamshad Bibi v. Riyasat Ali and others 2017 CLC 1199; Mst. Laila Qayyum v. Fawad Qayum and others PLD 2019 SC 449; Allah Wasaya and 13 others v. Yar Muhammad and others 2015 MLD 272; Rao Narsingh Rao v. Beti Maha Lakshmi Bai and others 66 Indian Cases 902 (1922) and Kanhaiya Bux Singh and others v. Ram Dei Kuer and others AIR 1944 Oudh 162 ref.

Safdar Iqbal for Petitioner.

Sh. Naveed Shahryar, Humaira Bashir and Safina Safdar Bhatti for Respondent.

2023 M L D 1490

[Lahore]

Before Aalia Neelum and Anwaarul Haq Pannun, JJ

MUHAMMAD SHAHZAD---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 6256 and Murder Reference No. 20 of 2019, decided on 31st October, 2022.

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

----Ss. 302, 380 & 411---Qatl-i-amd, theft in dwelling house, dishonestly receiving stolen property---Appreciation of evidence---Benefit of doubt---Call Data Record---Accused was charged for committing murder of the mother of complainant after stealing away golden ear-rings and mobile phones---Record showed that the Trial Court had marked the Call Record Data consisting of eight pages received by Police Constable/witness through an e-mail---Call Detail Record did not contain the e-mail address of the sender or receiver, nor it contained the signatures of any representative of the service provider company from which the call details of the two mobile companies was secured---Thus, the Call Detail Record had not been proved on record by the law---Call Detail Record did not show in whose name the Mobile number stood registered---Call Detail Record relied upon by the prosecution though otherwise not proved by the law, also did not support the version of the prosecution that the complainant had seen some woman knocking at the door of the house of the complainant's mother---During cross-examination, Investigating Officer admitted that supplementary statement of complainant was recorded and in that supplementary statement there was no mention of any mobile phone, SIM number, or gold ornaments---Since the prosecution had failed to lead any evidence on record about the persons in whose names those two mobile numbers were registered and working, the court could neither guess nor presume that one of those mobile numbers belonged to the accused and deceased---Crucial evidence in the present case was the SIM of the deceased used by the accused in his mobile phone set---Complainant's statement was conspicuously silent about the SIM numbers and makes and models of the cell phones that were stolen after the incident---In the present case prosecution had placed on the record call details, which were marked---Prosecution's case was based on call details of the mobile phones but had failed to establish its case in that regard, as well---No official of the concerned mobile phone company was produced in the court, nor the call details of the mobile phones were proved on record---Prosecution also failed to prove in whose names the mobile numbers were issued---Prosecution had also failed to bring on record any link evidence, pointing out the accusing finger against the accused---Circumstances established that the prosecution had failed to bring at home charge against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 380 & 411---Qatl-i-amd, theft in dwelling house, dishonestly receiving stolen property---Appreciation of evidence---Benefit of doubt---Recovery of stolen articles on the disclosure of accused---Reliance---Accused was charged for committing murder of the mother of complainant after stealing away golden ear-rings and mobile phones---Prosecution relied on the disclosure statement of the accused leading to the recovery of stolen articles, i.e., ear-rings, mobile phone and a SIM---Admissibility of disclosure statement in terms of Art. 40 of the Qanun-e-Shahadat, 1984, made to a Police Officer leading to the discovery of a fact depended on how the prosecution proved it---Soon after the recovery the ear-rings and mobile phone, were not identified by the complainant in the police station in the presence of witnesses nor same were identified by him in Court---Recovery was made after five months, five days, and that too from an open shop, and the bag from which recovery was effected was lying open by the side of a wall of the shop---Recovery had not been made from any closed or concealed place but from an open area that was accessible to all and everyone, including those working and visiting the shop, which did not even belong to the accused, thus it was insufficient to bring the guilt home to the accused or to prove that he had the stolen goods---Prosecution had failed to prove recovery of stolen properties belonging to the deceased, at the instance and from the accused---Circumstances established that the prosecution had failed to bring at home charge against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Benefit of doubt---Principle---Benefit of every doubt is to be extended in favour of the accused.

Muhammad Akram v. The State 2009 SCMR 230; Ayub Masih v. The State PLD 2002 SC 1048 and The State v. Mushtaq Ahmed (PLD 1973 SC 418 rel.

Falak Sher Bakhsh Gill for Appellant.

Rana Ahsan Aziz, Additional Prosecutor General for the State.

Raja Nazir Ahmad for the Complainant.

2023 M L D 1523

[Lahore]

Before Shujaat Ali Khan, J

MUSTAFA MASOOD---Petitioner

Versus

DEFENCE HOUSING AUTHORITY, LAHORE and others---Respondents

W.P. No. 45771 of 2022, decided on 14th November, 2022.

Defence Housing Authority Lahore Ordinance (LI of 1999)---

----S. 7 & Preamble---Plot---Caution or injunctive order, removal of---Responsibility of the Authorities/statutory body---Functions of the Defence Housing Authority (' the Authority')---Scope---Late father of the petitioner purchased a plot from a person who happened to be a judgment-debtor in a decree; and after the death of the father, names of the petitioner and other legal heirs were although incorporated in the record of the Authority, however, the Authority declined issuance of No Demand Certificate ('NDC') to said legal heirs in wake of a caution regarding plot-in-question having been marked in the record---Caution was marked by the Authority against the subject-plot pursuant to order passed by the Executing Court due to the fact that the decree-holder had mentioned the said plot in the list of inventory of the judgment-debtor for satisfaction of decree---Authority had not removed the caution despite the fact that Local Commission appointed by the Executing Court for auction denied auction on the basis that the subject-plot no more belonged to the judgment-debtor (from whom father of the petitioner purchased the same); and an employee of the Authority had stated before the Executing Court that the subject-plot was transferred in the name of the father of petitioner---Petitioner invoked constitutional jurisdiction of the High Court against the letter issued by the Authority declining issuance of No Demand Certificate on the plea of the caution still having been marked in the record of the Authority---Held, that there was no justification for the Authority to continue with the caution in wake of facts of present case as well as for the reason that the decree had already been transferred to the Executing Court of other province---It was of common knowledge practice that once a caution or injunctive order was incorporated in the record of a statutory body, like the Authority, the same was not removed despite knowing the fact that such caution or injunctive order had already lost its efficacy---In the present case, when the transfer order of decree out of province was brought to notice of Authority, resulting in redundancy of execution proceedings, the Authority was under bounden responsibility to remove the caution and to issue the NDC to the petitioner and other legal heirs---In case of ambiguity, the Authority could either ask the party to provide a court order justifying removal of the caution or could directly verify from the concerned Court for the said purpose---High Court deprecated the fact that the Authority continued marking of caution in casual manner and declined issuance of NDC to the petitioner without any tangible ground---High Court set-aside impugned letter and directed the Authority to ensure issuance of NDC to the petitioner and other legal heirs--- Constitutional petition was allowed, in circumstances.

Rana Tahir Mahmood for Petitioner.

Ahmad Pervez assisted by Ms. Scheherezade Shaharyar for Respondents.

2023 M L D 1545

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ

MUHAMMAD ASLAM---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 6795-M of 2022, decided on 6th October, 2022.

Penal Code (XLV of 1860)---

----S. 302(b)--- Criminal Procedure Code (V of 1898), Ss. 561-A & 382-B---Qatl-i-amd---Appreciation of evidence---Period of detention to be considered while awarding sentence of imprisonment---Accused was charged for committing murder of the deceased---Section 382-B, Cr.P.C., was added by the Law Reforms Ordinance, 1972---Word "shall" was substituted for the word "may" by the Code of Criminal Procedure (Second Amendment) Ordinance (Ordinance No. LXXI of 1979)---Said substitution by the word 'shall' mean that this provision was mandatory and it was obligatory on the Courts to give this benefit to the accused who was awarded the sentence of imprisonment---Said benefit was also available to a person who was awarded death sentence by the Trial Court but subsequently the same was reduced---Legal valuable right had been conferred upon the accused after the amendment of S. 382-B, Cr.P.C., and that right could not be ignored or refused---Object of granting the benefit under S. 382-B, Cr.P.C., was to compensate the accused for the unnecessary delay that had been caused in the commencement and the conclusion of his trial---Thus, the Courts must take into consideration the period the accused spent in jail prior to his conviction---Therefore, present accused, after the sentence of death awarded to him under S. 302(b), P.P.C., was set-aside and the he was convicted under S. 302(c), P.P.C. and sentenced to rigorous imprisonment for fifteen years, was entitled to get the benefit provided under S. 382-B of the Code of Criminal Procedure, 1898, from High Court---Court did not consider the aspect of extending or not extending the benefit provided under S. 382-B of the Code of Criminal Procedure, 1898, to the accused while awarding him sentence of imprisonment---Thus, by invoking the inherent power under S. 561-A, Cr.P.C., petition was allowed and accused was declared entitled to the benefit under S. 382-B of the Code of Criminal Procedure, 1898.

Qadir v. State PLD 1991 SC 1065; Ramzan v. State PLD 1992 SC 11; Liaqat Hussain v. State PLD 1995 SC 485; Muhammad Rafiq v. The State 1995 SCMR 1525; Mukhtiar-ud-Din v. State 1997 SCMR 55; Ghulam Murtaza v. State PLD 1998 SC 152; Javed Iqbal v. State 1998 SCMR 1539; Ehsan Ellahi v. Muhammad Arif 2001 SCMR 416; Government of Khyber Pakhtunkhwa through Secretary Home and Tribal Affairs Department Peshawar and others v. Mehmood Khan 2017 SCMR 2044; Sajjad Ikram and others v. Sikandar Hayat and others 2016 SCMR 467 and Shah Hussain v. The State PLD 2009 SC 460 rel.

Sardar Mahboob for Petitioner

2023 M L D 1568

[Lahore]

Before Muhammad Ameer Bhatti, C.J. and Tariq Saleem Sheikh, J

IFRAHEEM and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 120640/J, 127129/J and Murder Reference No. 645 of 2017, decided on 21st November, 2022.

(a) Criminal trial---

----Evidence--- Improvement of statement--- Effect--- Witness who improves his statement on material aspects of the case is untrustworthy.

Ibrar Hussain and others v. The State and another 2007 SCMR 605; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Muhammad Naeem Inayat v. The State 2010 SCMR 1054; Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474 and Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 rel.

(b) Criminal trial---

----Medical evidence---Scope---Medical evidence may confirm eye-witness account about seat and nature of injuries, kind of weapon used in an occurrence, but it cannot identify the assailant.

Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410; Muhammad Saleem v. Shabbir Ahmed and others 2016 SCMR 1605 and Hashim Qasim and another v. The State 2017 SCMR 986 rel.

(c) Criminal trial---

----Motive---Scope---Motive has a bearing on the case only if prosecution succeeds in proving charge against accused through direct or circumstantial evidence.

Ghalib Hussain and others v. Muhammad Arif and others 2002 SCMR 20; Mst. Riaz Bibi v. Sardar and 3 others 1999 PCr.LJ 1323 and Mulazim Hussain v. The State and another 2010 PCr.LJ 926 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Absconding of accused---Prosecution sent 15 persons to face trial on the charge of murder---Trial Court acquitted 7 persons of the charge while 8 were convicted out of which 6 were sentenced to death and two ladies were sentenced to imprisonment for life---Validity---Alleged absconding of accused persons after occurrence was not conclusive proof of their guilt---Trial Court convicted accused persons on the same evidence on which it had acquitted 7 co-accused persons---Neither the State nor the complainant challenged acquittal order before High Court---High Court set aside conviction and sentence awarded to accused persons as there existed no independent corroborating evidence--- Appeal was dismissed, in circumstances.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 and Liaquat Hussain and others v. Falak Sher and others 2003 SCMR 611 rel.

Muhammad Ahsan Bhoon assisted by Aftab Islam Kalasan, Ch. Asif Shahzad, Asad Jamal, Syed Ali Zohair Kirmani, Hafiz Muhammad Zaheer Nasir and Iftikhar Ahmad Meo for Appellants.

Ali Hassan, Additional Prosecutor General for the State.

Rai Faisal Tufail Kharal for the Complainant.

2023 M L D 1593

[Lahore]

Before Farooq Haider, J

MUHAMMAD ASLAM---Petitioner

Versus

REGIONAL DIRECTORATE ACE LAHORE and others---Respondents

Writ Petition No. 670 of 2023, decided on 22nd May, 2023.

Criminal Procedure Code (V of 1898)---

----S. 4(1)---Police Rules, 1934, R. 25.2(3)---Pakistan Criminal Law (Amendment) Act (XL of 1958), S. 5(6)---Penal Code (XLV of 1860), S. 161---Prevention of Corruption Act (II of 1947), S. 5(2)---Constitution of Pakistan, Art. 10-A---Constitutional petition---Investigation---Scope---Cancellation report---On the complaint of petitioner, FIR was registered against respondent alleging him of receiving illegal gratification---First Information Report in question was cancelled by investigating officer on the ground that complainant and witness failed to appear before him in support of the allegations---Validity---Fair investigation is mandatory for fair trial which has been guaranteed by Art. 10-A of the Constitution---Cancellation report was prepared without concluding that allegation levelled in the case was established or not but merely on the ground that complainant and witnesses did not join investigation---It was not mentioned in cancellation report that process for compelling attendance of petitioner and his witnesses through warrants, proclamation and attachment was issued and no proof was annexed in such regard---Trial Court concurred with investigating officer without taking into consideration such failure of investigating officer---High Court set aside order passed by Trial Court and remanded the matter for decision afresh on cancellation report filed by investigating officer---Constitutional petition was allowed, in circumstances.

Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109; Afzal Ahmad v. City Police Officer, Faisalabad and 3 others PLD 2022 Lah. 721; Saira Fatima Sadozai v. D.I.G. Investigation and others 2023 PCr.LJ 427; Muhammad Zafar Iqbal v. Sadozai Khan and 2 others 2021 YLR 1206 and Maqsood Yameen v. R.P.O. Multan and others 2015 PCr.LJ 923 rel.

Muhammad Azeem Daniyal for Petitioner.

Umar Arshad Butt, Assistant Advocate General Punjab along with Ghulam Mursaleen, Deputy Director (Prosecution), Nazim Farooq, Assistant Director (Investigation) ACE Lahore for Respondents Nos.1, 2, 3, 5, 6 and 8 and record of the case.

Abdur Razzaq Younas for Respondent No. 4.

2023 M L D 1611

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

AZEEM KHAN and another---Petitioners

Versus

GOVERNMENT OF THE PUNJAB through Secretary Mines and Minerals, Punjab Secretariat, Lahore and 6 others---Respondents

Writ Petition No. 2363 of 2022, decided on 8th September, 2022.

(a) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), O. XXIII, R. 1 & Preamble---Constitutional petition, withdrawal of---Scope---Second constitutional petition filed after withdrawal of first one without the permission stipulated in O. XXIII, R. 1 of Civil Procedure Code, 1908---Maintainability---Concealment of material facts---Scope and effect---Petitioners invoked constitutional jurisdiction of the High Court at one of its benches whereas their earlier constitutional petition filed before the principal seat of the same High Court was withdrawn by them---Record revealed that initially the petitioners filed constitutional petition at the principal seat of the High Court with regard to same cause and, although the petitioners had withdrawn said constitutional petition, however, the observations recorded in the said order were relevant---Said observations manifested that the first constitutional petition was not withdrawn in ordinary course, rather after being confronted with certain legal infirmities---Thus, petitioners having no other option, sought permission to withdraw the constitutional petition and as such the same was dismissed--- Proceedings in a constitutional petition were to be regulated by the Civil Procedure Code, 1908, so O. XXIII was mutatis mutandis applicable to such proceedings---Order XXIII, R. 1(3) of the Civil Procedure Code, 1908, stipulated that if the plaintiff had not been allowed permission by the Court to institute fresh suit in terms of O. XXIII, R. 1(2), he would be precluded from instituting any fresh suit in respect of such subject-matter or such part of claim ---Since the previous constitutional petition on the same cause was dismissed as withdrawn so the petitioners were precluded to file the present constitutional petition in terms of O. XXII, R. 1(3) of the Civil Procedure Code, 1908---Constitutional petition , being frivolous and vexatious, was dismissed in limine with costs of Rs. 100,000/-, in circumstances.

Javaid Iqbal Abbasi and Company v. Province of Punjab and 6 others 1996 SCMR 1433 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Concealment of facts---Scope and effect---Petitioners invoked constitutional jurisdiction of the High Court at one of its benches in short span of time after their earlier constitutional petition, filed before the principal seat of the same High Court had been withdrawn by them; and they also concealed pendency of litigation between the parties on the same cause before the Civil Court---Held, that person seeking indulgence of the High Court in constitutional jurisdiction was supposed to approach the Court with clean hands---It was expected from such person that on the basis of principle of equity, he would not conceal any material fact from the Court---Petitioners had approached the High Court in a very dubious manner, in short span of time after withdrawal of previous constitutional petition from the High Court at its principal seat and without appending the copy of said(previous) order---Petitioners had also purposely concealed the pendency of a civil suit between the parties on the same subject---Concealment of material facts from the Court not only tantamount to thwart but to hoodwink the process of law---Constitutional jurisdiction was a discretionary relief, which depended upon the satisfaction of the Court---Petitioners had not come with true facts and instead had withheld necessary information on extraneous reasons, and non-disclosure of material facts being a sole circumstance was sufficient to disentitle the petitioners from claiming the discretionary relief in terms of Art. 199 of the Constitution---High Court deprecated that the petitioners had picked the forum of their own choice while concealing material facts--- Constitutional petition, being frivolous and vexatious, was dismissed in limine with costs of Rs. 100,000/-, in circumstances.

Muhammad Amir v. Umer Hayat and 5 others 2010 CLC 1798; Noor Avenue Cooperative Housing Society, Hanjarwal, Lahore through President v. Lahore Development Authority through Director-General, L.D.A., Lahore and 3 others 2008 CLC 200; Nadir Ali v. Secretary, Regional Transport Authority, Faisalabad and another PLD 2006 Lah. 298 and Mian Muhammad Yousaf and another v. Lahore Development Authority through Director-General, L.D.A. Plaza, Lahore and 5 others PLD 2001 SC 393 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court, invoking of---Competent Court/forum, non-approaching of---Concealment of facts---Scope and effect---Petitioners invoked constitutional jurisdiction of the High Court at one of its benches in short span of time after their earlier constitutional petition, filed before the principal seat of the same High Court had been withdrawn by them; and they also concealed pendency of litigation between the parties on the same cause before the Civil Court---Held, that Constitutional jurisdiction of the High Court though could not be abridged by a subservient legislation but exercise of said jurisdiction was always dependant upon the facts and circumstances of each case---High Court was cognizant of the fact that such a tendency on the part of litigants was increasing day by day that they, instead of prosecuting their cause before the competent forum, were opting to invoke the constitutional jurisdiction of the High Court without any justifiable reason, which on the one hand resulted in burdening the Court with unnecessary work and on the other hand absolved the respective functionaries/authorities from their statutory duty---Constitutional jurisdiction was always discretionary with the High Court and the person approaching for the said purpose had to establish the negation of his vested rights---Said mandate was not unbridled and the High Court was precluded to exercise its constitutional jurisdiction in an omnibus fashion---High Court deprecated that the petitioners had, while concealing material facts, picked the forum of their own choice---Constitutional petition, being frivolous and vexatious, was dismissed in limine with costs of Rs. 100,000/-, in circumstances.

Fazli Qadir Khan for Petitioners.

Ms. Amna Ali, Assistant Advocate General for Punjab along with M. Ahsan Saleem, Assistant Director Mines and Minerals.

2023 M L D 1769

[Lahore]

Before Malik Shahzad Ahmad Khan, J

MURTAZA alias MURTI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 78948-J of 2019, decided on 23rd November, 2022.

(a) Criminal trial---

----Injured witness---Scope---Mere injuries on the bodies of the prosecution witnesses do not mean that they are stating the whole truth and their evidence is to be relied upon or discarded while keeping in view the other facts and circumstances of a particular case.

Muhammad Pervez and others v. The State and others 2007 SCMR 670 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradiction---Accused were charged that they along with their co-accused made firing upon the complainant party, due to which, father, brother and uncle of the complainant were hit and died while three other persons sustained injuries---Ocular account of the prosecution was furnished by complainant and two other witnesses---There was conflict between the ocular account as set forth in the FIR and statements of the said witnesses recorded by the police and medical evidence brought on the record by the prosecution through Medical Officers---According to the contents of the FIR accused made a fire shot with his 44 bore rifle, which landed on the right side of the head of brother of complainant/deceased and made its exit from the other side but according to the evidence of Medical Officer in post mortem report injury No.2 on the right side of the head was an exit wound whereas injury No.1, which was an entry wound, was on the left side of head of deceased---Other accused was assigned the role of making first fire shot which landed on the right side of the chest of deceased/father of complainant and thereafter he made second fire shot, which landed near the right armpit of the said deceased---Although, there was an entry wound on the right side of the chest of deceased i.e. injury No.3 but injury under the right armpit of the deceased i.e. injury No.6 was an exit wound and as such there was also conflict between the ocular account of the prosecution as mentioned in the FIR, in the statements of the prosecution witnesses recorded by the police and in the medical evidence, which had created doubt in the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt--- Appeal against conviction was allowed, in circumstances.

Saeedullah Khan v. The State 1986 SCMR 1027 and Muhammad Ashraf v. The State 2000 PCr.LJ 2021 ref.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Dishonest improvements made by the witnesses---Accused were charged that they along with their co-accused made firing upon the complainant party, due to which, father, brother and uncle of the complainant were hit and died while three other persons sustained injuries---In the present case, in order to bring their evidence in line with the medical evidence, the complainant and the witnesses while filing the private complaint and appearing before the Trial Court made dishonest improvements in their statements and changed the roles and seats of injuries attributed to both the accused---Said witnesses were confronted with their previous statements and dishonest improvements made by them were duly brought on the record---It was evident from the perusal of evidence that the prosecution witnesses made dishonest improvements in their statements while appearing in the witness box in order to bring their statements in line with the medical evidence---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Akhtar Ali and others v. The State 2008 SCMR 6 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Co-accused acquitted on the basis of same evidence on which accused convicted---Accused were charged that they along with their co-accused made firing upon the complainant party, due to which, father, brother and uncle of the complainant were hit and died while three other persons sustained injuries---Record showed that the complainant party implicated as many as eleven (11) accused persons in this case and out of the said eleven (11) accused, two co-accused died during the pendency of the trial before the Trial Court, whereas the remaining seven (07) accused had already been acquitted by the Trial Court---Prosecution had conceded that no appeal against the acquittal of seven accused had been filed either by the State or by the complainant---In the given circumstances, it was to be determined by the Court as to whether the same prosecution evidence, which had been disbelieved against the co-accused could be believed against the present accused and as to whether there was any independent corroboration of the prosecution evidence against the present accused---In such respect, case of one of the co-accused (since acquitted) was at par with the case of both the present accused because the said co-accused was assigned the role of making first fire shot, which landed on the back side of the chest near neck of deceased/uncle of complainant and in the post mortem report the said injury i.e. injury No.1 was available on the back side of the chest near neck of deceased---Said co-accused was also assigned the role of making second fire shot, which landed on the left leg and knees of injured and according to the medical evidence the said injury was also available as injury No.1 on the left leg of injured but the said co-accused had been acquitted by the Trial Court, which acquittal had attained finality---Although prosecution tried to distinguish the case of both the present accused with the case of acquitted co-accused on the ground that the said co-accused was declared innocent during the police investigation whereas the present accused had been found guilty---However, police opinion after recording of evidence by the Trial Court became irrelevant and the present accused could not be convicted and sentenced merely on the basis of said opinion in absence of any other independent corroborative piece of evidence---As the prosecution evidence had already been disbelieved against seven acquitted co-accused, therefore the same evidence could not be believed against the present accused without independent corroboration, which was very much lacking in the present case---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Ahmad (Mahmood Ahmad) and another v. The State 2010 SCMR 660; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Akram v. The State 2012 SCMR 440; Muhammad Ali v. The State 2015 SCMR 137 and Ulfat Husain v. The State 2018 SCMR 313 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Weapons of offence recovered on the pointation of the accused---Reliance---Accused were charged that they along with their co-accused made firing upon the complainant party, due to which, father, brother and uncle of the complainant were hit and died while three other persons sustained injuries---Prosecution alleged that no weapon was recovered from the possession of the acquitted co-accused, whereas rifles were recovered from both the present accused and as such case of the present accused was distinguishable from the case of acquitted co-accused---As per Forensic Science Agency Report the empties recovered from the spot did not match with the rifle recovered on the pointation of accused---Although according to Forensic Science Agency Report two empties recovered from the spot matched with the rifle recovered from the possession of accused but the rifle was recovered from the possession of accused on 23.06.2013 whereas the empties were deposited in the office of Forensic Science Agency on 10.07.2013, which meant that the empties and rifle were kept together at police station, therefore, it was not safe to rely upon the said piece of evidence of the prosecution---Under the said circumstances, there was no independent corroboration of the prosecution case through the said alleged recoveries of weapons of offence on the pointation of the accused persons---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt--- Appeal against conviction was allowed, in circumstances.

Jehangir v. Nazar Farid and another 2002 SCMR 1986; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Mushtaq and 3 others v. The State PLD 2008 Supreme Court 1 and Mureed Hussain v. The State through Prosecutor-General Sindh 2014 SCMR 1689 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused were charged that they along with their co-accused made firing upon the complainant party, due to which, father, brother and uncle of the complainant were hit and died while three other persons sustained injuries---Record showed that general allegation in respect of the motive part of the prosecution case was leveled by the prosecution witnesses against the accused persons and their acquitted co-accused wherein they stated that few days earlier to the occurrence a quarrel took place between the complainant and the accused persons---Said motive was also alleged against the acquitted co-accused---No specific date, time and place of the quarrel of motive part of the occurrence had been mentioned by any prosecution witness---Moreover, the Trial Court had disbelieved the prosecution evidence qua the motive due to cogent reasons and as such there was no independent corroboration of the prosecution case against the accused with respect to the motive---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Akhtar Hussain Bhatti for Appellants who is absent today i.e. on 23.11.2022, however his arguments have already been heard on 22.11.2022.

Nisar Ahmad Virk, Deputy Prosecutor General for the State.

Muhammad Ramzan Nadeem Channer for the Complainant.

2023 M L D 1819

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

IMTIAZ ALI---Petitioner

Versus

MUHAMMAD SADIQ---Respondent

C.R. No. 206-D of 2023, decided on 27th March, 2023.

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

----S. 12--- Civil Procedure Code (V of 1908), S. 115, O. VII, R. 11 & O. XXIII, R. 2---Suit for specific performance of agreement to sell---Withdrawal of suit---Limitation for second suit---Rejecting of plaint---Concurrent findings of two Courts below---Plaintiff sought specific performance of agreement to sell but his plaint was concurrently rejected by two Courts below, as the same was barred by limitation---Validity---First suit instituted by plaintiff was within prescribed period of limitation but he withdrew the suit with permission to file afresh, which permission was conditional---Situation of second suit was catered by the provision of O. XXIII, R. 2, C.P.C.---For purpose of limitation, first suit, which has been withdrawn, is not to be taken into consideration at all, so the time spent on such a suit is not to be deducted for the subsequent suit---There were concurrent findings of two Courts of competent jurisdiction founded on well-established principles of law---Plaintiff failed to point out any illegality or material irregularity in the judgments of both the Courts below---Scope of revisional jurisdiction was circumscribed to eventualities mentioned in S. 115, C.P.C.---High Court declined to interfere in concurrent findings of two Courts below---Revision was dismissed, in circumstances.

Jamshed and 13 others v. Mst. Shujaat Begum and 4 others 2016 YLR 2764 distinguished.

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

----S. 3---Limitation---Scope---Once limitation starts running, it cannot be stopped---Limitation is always pivotal question, which cannot be ignored by Court even by invoking principles of equity.

Muhammad Anwar (decd) through L.Rs. and others v. Essa and others PLD 2022 SC 716; Muhammad Yousaf and others v. Nazeer Ahmed Khan (Deceased) through LRs and others 2021 SCMR 1775 and Syed Athar Hussain Shah v. Haji Muhammad Riaz and another 2022 SCMR 778 rel.

2023 M L D 1859

[Lahore (Bahawalpur Bench)]

Before Muhammad Sajid Mehmood Sethi, J

SUMAMA NOOR MAZHAR---Petitioner

Versus

PAKISTAN MEDICAL COMMISSION (ERSTWHILE PAKISTAN MEDICAL AND DENTAL COUNCIL) through President, Islamabad and others---Respondents

Writ Petition No. 2312 of 2021/BWP, decided on 1st April, 2021.

(Pakistan Medical Commission) Admission Regulations (Amended), 2020-2021---

----Regln. 19-D---Constitution of Pakistan, Art. 199---Constitutional petition---Admission in medical college---Vacant seats---Change of program---Permissibility---Petitioner did not qualify on merit to get admission in MBBS Program and intended to switch her admission in BDS program---Validity---Option of getting admission under Regln. 19-D of Admission Regulations (Amended), 2020-2021, was for to those students only, who had applied in other colleges but could not get admission in college of their choice in the program, thus, were allowed to be admitted in any other college on merit in the program in which they had applied---Students were not entitled under Regln. 19-D of Admission Regulations (Amended), 2020-2021, to get admission in the program other than the one they had applied for---By creating suchlike exception, as sought by petitioner, and thereby overriding settled policy which was within the knowledge of petitioner, the entire process of admission would be disrupted and merit list which had since been finalized would be thrown into disarray for which there was no lawful justification---High Court while exercising jurisdiction under Art. 199 of the Constitution declined to interfere in transparent policy decisions of executive, aimed at achieving best possible result in managing its affairs as High Court had very limited jurisdiction for examining such criteria---Petitioner failed to point out any illegality or legal infirmity in the orders passed by authorities---Constitutional petition was dismissed, in circumstances.

Peshawar Electric Supply Company Ltd. v. Wafaqi Mohtasib (Ombudsman) Islamabad and others PLD 2016 SC 940; Zahra Zando v. King Edward Medical College, Lahore through Principal and 2 others 2005 YLR 1703; Pakistan Medical and Dental Council v. Dr. Raza Muhammad Khan 1992 SCMR 1621; Amna Sharif and another v. POF Board through Director Industrial and Commercial Relations (DICR) and others 2015 MLD 229; Mst. Momna Mehmood v. Vice-Chancellor University of Health Sciences, Lahore and others 2015 MLD 1784; Messrs Pharmawise Laboratories (Pvt.) Ltd., Lahore through Chief Executive Officer v. Government of the Province of Punjab through Secretary, Health C.S., Lahore and 2 others PLJ 2016 Lah. 442; Federation of Pakistan v. Asad Javed and others PLD 2016 Isl. 53 and Karamat Hussain and another v. Election Commission of Pakistan through Provincial Election Commissioner (Punjab) and 7 others PLD 2016 Lah. 491 distinguished.

Gull-e-Raana v. Chairman Admission Board, UHS and 2 others PLD 2015 Lah. 370 and Saghir Ahmad v. Federation of Pakistan through Secretary, Ministry of Water and Power, Pak Secretariat, Islamabad and others PLJ 2016 Lahore 999 rel.

Nadeem Iqbal Ch. for Petitioner in this as well as connected Petition i.e. W.P. No. 2373 of 2021/BWP.

2023 M L D 1875

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD UMAR RAMZAN---Petitioner

Versus

ARFEEN EJAZ and others---Respondents

Writ Petition No. 75253 of 2022, heard on 14th March, 2023.

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

----Arts. 132 & 133---Non-adverse party---Cross-examination, right of---Dispute was with regard to deleting cross-examination conducted by petitioner/defendant on a witness produced by respondent/co-defendant on the plea that both were not adverse parties---Validity---Only such party, which had obvious conflict of interest, could enjoy right of cross-examining witness of opponent parties---In the present case, interest of petitioner/defendant and that of respondent/co-defendant was the same and there was no conflict of interest between them, thus an opportunity of cross-examination to witnesses of respondent/co-defendant having no adverse interest to each other could not be given in order to prevent abuse of process of law as well as to prevent filling up lacunas occurring in the statement of witness through the sword of cross-examination---Lower Appellate Court did not commit any illegality in exercise of revisional jurisdiction---Constitutional petition was dismissed, in circumstances.

Barkat Ali v. Additional District Judge Dadyal and 4 others 2022 YLR 868; Muhammad Imran Khan and 4 others v. Haji Muhammad Akhtar and others PLD 2021 Sindh 510; Sadhu Singh v. Sant Narain Singh Sewadar and others AIR 1978 Punjab and Haryana 319 and Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970 rel.

Muhammad Mehmood Chaudhry for Petitioner.

Moeen Ahmad for Respondents Nos. 1 and 2.

Mian Mohsin Mehmood for Respondent No. 4.

Amir Wakeel Butt for Respondent No. 5.

2023 M L D 1911

[Lahore]

Before Ch. Muhammad Iqbal, J

HASTAM ASHRAF MANN---Petitioner

Versus

MUHAMMAD MOHSIN and others---Respondents

C.M. No. 1 of 2019 in W.P. No. 33665 of 2015, decided on 18th April, 2023.

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

----S. 12(2)---Fraud, misrepresentation or want of jurisdiction---Application under S. 12(2), C.P.C.--- Remedy, insertion of---Objective---Matter of partition of joint Khata, comprising around forty (40) co-sharers, remained pending before revenue hierarchy and was finally disposed off after one of the co-sharers invoked constitutional jurisdiction of the High Court---Petitioner (Overseas Pakistani) moved an application under S. 12(2) of Civil Procedure Code, 1908, in said disposed of Writ Petition alleging that the name of his deceased father was arrayed instead of legal heirs(including the petitioner)---Validity---Provision of S. 12(2) of the Civil Procedure Code, 1908, was inserted with the purpose to provide a short-cut remedy to the aggrieved party and also to save the party from the vagaries of further litigation by conferring a legal right to a party to challenge the final judgment, decree or order obtained through fraud , misrepresentation or without jurisdiction within the same proceedings/forum through an application under S. 12(2), C.P.C., 1908, instead of filing a separate independent civil suit---Second suit or second application on the same cause of action between the same parties was barred under S. 12(2), C.P.C., 1908, however, such a final judgment, decree or order could be challenged through an application under S. 12(2), C.P.C, 1908, having indispensible ingredients of fraud, misrepresentation and want of jurisdiction---Petitioner had failed to point out any ingredient falling under S. 12(2) of the C.P.C., 1908 in the impugned proceedings---Application was dismissed, in circumstances.

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

----Ss. 17 & 18---Civil Procedure Code (V of 1908), S. 12(2)---Application under S. 12(2), C.P.C.---Fraud and misrepresentation, meanings of---Words "fraud", "misrepresentation" and "want of jurisdiction" have not been defined in the Civil Procedure Code, 1908,---It is appropriate to borrow plain meanings of 'fraud' and 'misrepresentation' from the dictionary as well as from Ss. 17 & 18 of the Contract Act.

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

----S. 12(2) & O. VI, R. 4---Application under S. 12(2), C.P.C.---Mandatory ingredients (fraud and misrepresentation), absence of---Allegations levelled in cursory manner without mentioning details---Matter of partition of joint Khata, comprising around forty (40) co-sharers, remained pending before revenue hierarchy and was finally disposed off after one of the co-sharers invoked constitutional jurisdiction of the High Court---Petitioner (Overseas Pakistani) moved an application under S. 12(2) of Civil Procedure Code, 1908, in said deposed of---Writ petition alleging that the name of his deceased father was impleaded instead of the legal heirs(including the petitioner)---Validity---Party (three in persons) who had initiated partition proceedings stated in their application for partition that they though had ownership of about 13% of joint Khata but they were not in possession of the same, instead other parties including the petitioner and his relatives (legal heirs of father of petitioner) were enjoying the possession/benefits of the property owned by them(original partition applicants)---Member Board of revenue had pointed out certain (three) parties who were in possession of land in excess of their share---Record revealed that although predecessor of the petitioner had died before initiation of partition proceedings, however, relevant inheritance mutation was entered in the revenue record three years after the application for partition had been filed, which meant that all the co-sharers of joint Khata, including predecessor of petitioner, as per revenue record, were arrayed as party in the application for partition---Petitioner had failed to bring on record that at the time of filing application for partition , the names of legal heirs of predecessor of the petitioner were available in revenue record---Under the partition proceedings, the respective shares and possession whereof was delivered to all owners including all the legal heirs of predecessor of the petitioner---Out of said legal heirs, only the petitioner had filed application under S. 12(2) of the C.P.C., 1908---Petitioner had merely raised oral allegation that land given to him in partition was of inferior quality but in said regard no documentary evidence had been brought on record---Petitioner had come up with his application under S. 12(2) of C.P.C. 1908, without disclosing therein the mandatory ingredients regarding the existence of fraud, misrepresentation and want of jurisdiction---Non-mentioning the said mandatory pre-requisites of the said provision dismantled the substratum of the application---Mere raising of cursory/illusory allegation of fraud and misrepresentation did not bring the application within ambit of S. 12(2) of C.P.C, 1908, rather such allegation should specifically have been mentioned in detail as required under O. VI, R. 4 of C.P.C., 1908---Application under S. 12(2) of the Civil Procedure Code, 1908, was dismissed, in circumstances.

Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation, Karachi PLD.2002 SC 500 and Sain v. Government of NWFP through Secretary, Auqaf and 2 others 2007 SCMR 1848 ref.

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

----S. 12(2)---Fraud, misrepresentation or want of jurisdiction---Application under S. 12(2), C.P.C.---Jurisdiction of the Court---Scope---Court while determining an application under S. 12(2) of the Civil Procedure Code, 1908, did not enjoy the jurisdiction to sit as a Court of appeal, rather it had to restrict itself to the extent of allegation of fraud, misrepresentation or want of jurisdictional defects only without going into the reappraisal of evidence on merit of the case.

Khairpur Textile Mills Ltd. and 7 others v. National Bank of Pakistan and another 2003 CLD 326; Messrs Ilyas Marine and Associates v. Muhammad Amin Lasania and another 2004 MLD 1008 and Masjid Ahl-e-Hadees through President and General Secretary v. Mst. Karam Noor and others 2009 CLC 1421 ref.

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

----S. 12(2) & O. VI, R. 4---Fraud, misrepresentation or want of jurisdiction---Application under S. 12(2), C.P.C.---Prejudice, absence of---Matter of partition of joint Khata, comprising around forty (40) co-sharers, remained pending before revenue hierarchy and was finally disposed off after one of the co-sharers invoked constitutional jurisdiction of the High Court---Petitioner (Overseas Pakistani) moved an application under S. 12(2) of Civil Procedure Code, 1908 in said disposed of writ petition alleging that the name of his deceased father was arrayed instead of legal heirs (including the petitioner)---Validity---Respondents filed application for partition of joint khata eighteen (18) years ago, which (application) was though accepted after ten (10) years but due to pendency of matter before revenue hierarchy as well as the High Court, they (respondents) were still waiting to avail the benefits of their respective share---Petitioner had failed to point out any prejudice caused to him by the decision passed by the High Court---No case for interference had been made out in the judgment in question---Application under S. 12(2) of the Civil Procedure Code, 1908, was dismissed, in circumstances.

Barrister Ch. Aitzaz Ahsan, Ch. Shokat Ali Javed and Tayyab Jan for Petitioner.

Tasnim Bari Saleemi for Respondents Nos. 4 to 6.

2023 M L D 1928

[Lahore]

Before Ahmed Nadeem Arshad, J

MEHDI KHAN---Petitioner

Versus

SHUMAILA BIBI and others---Respondents

Writ Petition No. 2772 of 2017, decided on 28th February, 2022.

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

----S. 9---Family Courts Act (XXXV of 1964), Ss. 5 & 21---Maintenance---Provisions of Muslim Family Laws Ordinance, 1961, not affected---Jurisdiction of Chairman, Arbitration Council---Scope---Chairman, Arbitration Council while issuing a Certificate of Talaq fixed the maintenance allowance of the wife with arrears for the last three years---Petitioner assailed the order on the ground that the Family Court previously denied similar relief to the wife, therefore she was estopped from claiming the maintenance allowance---Validity---Section 9 of the Muslim Family Laws Ordinance, 1961, granted wife the right to seek maintenance for the future as well as the past---Combined reading of Ss. 5 & 21 of the Family Courts Act, 1964, revealed that there was no obstacle preventing the wife from applying under S. 9 of the Muslim Family Laws Ordinance, 1961, in addition to availing any other legal remedy available to her---When a party has more than one forum for redressal of its grievance and if it opts for one of them then it cannot be allowed to switch over to the rest of the remedies---In this particular case, if the proceedings before two forums were not maintainable, the suit before the Family Court, being filed later, could be challenged, but not the proceedings before the Arbitration Council---Constitutional petition was dismissed.

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

----S. 9---Maintenance---Scope---Section 9(1) of the Ordinance, 1961, postulates that Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband---From the word 'maintenance' it cannot be gathered that it relates to past or future rather in a wide sense it covers all kinds of maintenance payable to the wife either during subsistence of her marriage or for Iddat period, as the case may be---Section 9(1) of the Ordinance, 1961 in no way curtails the power of Arbitration Council to grant past maintenance to the wife---Husband's obligation to maintain his wife commences simultaneously with the creation of marital bond and being an obligation and not an ex gratia grant it is enforceable even with respect to the past period of marital life, even if the same was not claimed during that period by the wife, subject to consideration of limitation and circumstances of the case itself.

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

----S. 9---West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R. 16--- Maintenance--- Revision--- Limitation---Scope---Subsection (2) of S. 9 of the Muslim Family Law Ordinance, 1961 clarifies that a husband or wife may in the prescribed manner within the prescribed period and on payment of prescribed fee prefer an application for revision of the certificate before the Collector concerned and his decision shall be final and shall not be called in question in any Court---Words "within the prescribed period" means not beyond the period stipulated under the Rules---In this regard clarification is made under R. 16(1) of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961.

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

----S. 29---Savings---Scope---When the statute itself prescribes the period for availing remedy before the higher forum the provisions of Limitation Act, 1908 would not be applicable.

Ch. Ahmad Masood Gujjar for Petitioner.

Mubashir Ejaz for Respondent No. 1.

2023 M L D 1958

[Lahore]

Before Raheel Kamran, J

SAJID IQBAL SHEIKH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Writ Petition No. 38170 of 2023, decided on 7th June, 2023.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 10 & 19---Specific Relief Act (I of 1877), S. 42---Eviction of tenant---Oral tenancy agreement---Suit for specific performance with respect to subject property filed by the tenent---Tenant denied existence of relationship of landlord and tenant---Rent Tribunal dismissed the eviction petition filed by the respondent/landlord, however, the Appellate Court accepted the same---Petitioner/tenant claimed to be in possession of the demised-premises on the basis of an agreement to sell allegedly having been executed by the father of respondent/landlord---Validity---Agreement-in-question had been denied by the respondent/ landlord---Although a suit for specific performance of said agreement had been filed by the petitioner/tenant which was subjudice before the Civil Court , however, his claim/plea was yet to be proved, whereas the title of the respondent/landlord over the demised premises was not disputed---Owner of the property by virtue of said title would be presumed to be landlord and the person in possession of the same would be construed as tenant---Tenancy agreement was not necessarily required to be in writing rather the same could be oral and implied---Even otherwise, suit of specific performance was subsequently instituted by the petitioner/tenant after the eviction petition having already been filed---Section 10 of the Punjab Rented Premises Act, 2009 ('the Act 2009') clearly indicated that any other agreement between the landlord and tenant did not affect their relationship inter se unless the tenancy agreement had been revoked---Nothing was available on record to suggest that the oral tenancy agreement was revoked prior to execution of agreement to sell alleged by the petitioner/tenant---Petitioner/tenant was obliged to vacate the demised property under the circumstances, which (possession) would be restored to him in case of success in his civil suit pending adjudication before the Civil Court---Appellate Court had rightly accepted the eviction petition of the respondent/landlord---Constitutional petition was dis-missed in limine, in circumstances.

Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 and Muhammad Nisar v. Izahar Ahmad Sheikh and others PLD 2014 SC 347 ref.

Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300 distinguished.

2023 M L D 1968

[Lahore]

Before Raheel Kamran, J

MUHAMMAD ZUHAIB ISHAQ---Petitioner

Versus

SENIOR CIVIL JUDGE and others---Respondents

W.P. No. 81179 of 2022, decided on 30th January, 2023.

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

----S. 11---Suit before Family Court---Recording of evidence---Re-calling a witness for cross-examination---Scope---Section 11(3) of the Family Courts Act, 1964 provides that the parties or their counsel may further examine, cross-examine or re-examine the witnesses, however, such provisions are not meant and designed for enabling a party to fill up the omissions in the evidence of witness who has already been examined, due to negligence and lapse of a party, rather the purpose, the nature and the scope of the power available to the Court in that regard is to enable it to seek clarification on any issue or to have a doubt cleared in the statement of a witness which if left outstanding and without which it would be difficult for the Court to take a right decision.

Muhammad Asghar v. Hussain Ahmad and others PLD 2014 SC 89 ref.

(b) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---Principles of fair trial, as guaranteed by Art. 10A of the Constitution, are to be read as an integral part of every sub-constitutional legislative instrument that deals with determination of civil rights and obligations of any person.

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 ref.

(c) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Equality of arms---Principle---Principle of equality of arms means giving each party a reasonable possibility to present its cause in such conditions as would not put one party in disadvantage to its opponent---In other words, there must be a fair balance between the opportunities afforded to the parties involved in litigation.

Amar Jeet Singh v. Sant Singh 2022 CLC 6 ref.

2023 M L D 1983

[Lahore (Multan Bench)]

Before Shakil Ahmad and Muhammad Amjad Rafiq, JJ

KHUDA BAKHSH and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 1164 of 2018 and Murder Reference No. 6 of 2019, heard on 14th November, 2022.

(a) Constitution of Pakistan---

----Art. 175(2)--- Maxim "lex fori"--- Applicability---Jurisdiction on Court always vests through law of a country---Such principle is based on legal maxim "lex fori" which means that law of the forum or the law of the jurisdiction where the case is pending---Principle of "lex fori" has its roots in our system as per Art. 175(2) of the Constitution.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 431---Qatl-i-amd---Abatement of appeal---Death of accused---Principle---Accused was sentenced to death but during pendency of appeal he had died---Effect---Appeal against sentence of death or imprisonment was to abate on the death of accused, however, it could stay and was decided on merit to the extent of sentence of fine---High Court returned record and case property to Trial Court as appeal stood abated as per S. 431, Cr.P.C.---Appeal abated, in circumstances.

Sheikh Iqbal Azam Farooqui through Legal Heirs v. The State through Chairman NAB 2020 SCMR 359; Dr. Ghulam Hussain (Represented by 8 Heirs) v. State 1971 SCMR 35; Muhammad Arshad v. The State and another 2018 PCr.LJ 1513; Anwar Hossain Khan v. The State 1970 PCr.LJ 279; Muhammad Arshad v. The State and another 2018 PCr.LJ 1513; (1) Syed Ahmad Shah and (2) Fereoze Din v. (1) The State and (2) Malik Abdul Aziz PLD 1967 SC 42; Dhaular Sher and others v. The State NLR 1998 Criminal 112; Muhammad Ishaq v. The State 1992 PCr.LJ 1273; Mukhtar Ahmad and others v. The State 1989 MLD 3730; Manzoor and others v. The State PLD 1987 Lah. 401; Ahmad Ali v. The State 1985 PCr.LJ 1111; Syed Muhammad Sibtain Ali Rizvi v. The State 1984 PCr.LJ 1749; Muhammad Shamoon (Deceased) through Legal Representative v. The State and another 2019 SCMR 1144; Ghulam Muhammad alias Gamoon v. The State and another; Criminal Appeal No. 716 of 2018 2021 LHC 6320; Mukaram Khan v. The State and another 2021 MLD 176; Alexander F. Mindlin, J.D., New York University School of Law, 2011 in his article "abatement means what it says": the quiet recasting of abatement; United States of America, v. Kenneth L. LAY, 456 F. Supp. 2d 869 (2006); Harnam Singh v. The State of Himachal Pradesh (1975) 3 SCC 343; Bondada Gajapathy Rao v. State of Adhra Pradesh 1964 AIR 1645; 1964 SCR (7) 251; Regional Operation Chief, National Bank of Pakistan, Human Resource Department, Regional Office, Sargodha and others v. Mst. Nusrat Perveen and others 2021 SCMR 702; Mst. S. Yasmin v. Pakistan Railways through General Manager and others 2017 PLC (C.S) 1; Mst. Shahnaz Bano v. Chairman Wapda and 2 others 2017 PLC (C.S.) 643 and Parveen Javaid v. Chairman Wapda and 5 others 2011 PLC (C.S.) 1527 rel.

(c) Words and phrases---

----Abatement--- Connotation.

Black's Law Dictionary (Tenth Edition) By Bryan A. Garner, Editor in Chief and Timothy A. Razel, J.D. Candidate, Fordham University School of Law, 2008 in his article "Dying to get away with it: how the abatement doctrine thwarts justice and what should be done instead" has defined abatement while referring Black's Law Dictionary 1 (2d Pocket ed. 2001) rel.

Muhammad Usman Sharif Khosa for Appellant.

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

2023 M L D 2016

[Lahore]

Before Farooq Haider, J

MEHR SHAUKAT---Petitioner

Versus

EX-OFFICIO JUSTICE OF PEACE/ASJ and others---Respondents

Writ Petition No. 45708 of 2022, heard on 28th September, 2022.

Rules under the Muslim Family Laws Ordinance, 1961---

----Rr. 8 & 10, Form-II, Column 21-A---Criminal Procedure Code (V of 1898), Ss. 22-A & 22-B---Mis-statement in Nikahnama---Petitioner sought registration of criminal case against respondent who was her husband---Contention of petitioner was that at the time of Nikah, respondent posed and mentioned himself as bachelor in Nikahnama though he was already married and had divorced his first wife and such fact was not mentioned in Nikahnama--- Ex-officio Justice of Peace dismissed application under Ss. 22-A, 22-B, Cr.P.C. filed by petitioner---Validity---In year 2017 when marriage was contracted, Nikahnama Form which was used, required bridegroom to expressly mention that either he was widower or divorcee---Nikahnama Form which was used did not contain the column to expressly mention such fact--- If Nikah Registrar did not incorporate contract of Nikah of the parties on appropriate and amended Form then it was no fault on the part of bridegroom---For the purpose of invoking criminal law, benefit of each and every doubt at each and every stage was to go to accused/proposed accused---It was not the case of petitioner that Form of Nikahnama used was due to any act or omission of respondent---Nikahnama Form in question did not contain any column which expressly required mentioning that either bridegroom/respondent was widower or divorcee, thus, respondent could not be burdened with any criminal liability---High Court declined to interfere in the order passed by Ex-officio Justice of Peace---Constitutional petition was dismissed, in circumstances.

Major (R) Arshad Mahmood Khan along with Asif Ali Kamboh for Petitioner.

Ch. Khaliq-uz-Zaman, Prosecutor General Punjab assisted by Abdul Samad, Additional Prosecutor General, Ms. Nuzhat Bashir, Deputy Prosecutor General, Haroon Rasheed and Sarfraz Khichi, Deputy District Public Prosecutors for the State.

Ahmad Suleman Tipu, Additional Advocate General Punjab, along with Ghulam Mehmood Dogar, CCPO, Lahore, Ghulam Hussain Chohan, S.P. Legal, Ameen, ASI with record, Muhammad Aslam Khan Balouch, Director Local Government Lahore Division and Arslan Ali, Deputy Secretary (Regulation), Office of Secretary Local Government and Community Development Department Punjab, Lahore for Respondents Nos. 2 to 4.

Ch. Tanveer Akhtar for Respondents Nos. 5 to 8.

2023 M L D 2073

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

SAHIBZADA HAROON ALI SYED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 3405 of 2019, heard on 12th January, 2022.

Family Courts Act (XXXV of 1964)---

----S. 5---Constitution of Pakistan, Art. 199---Constitutional petition---Maintenance allowance---Quantum---Iddat period---Petitioner/ex-husband was aggrieved of maintenance allowance fixed by two Courts below---Validity---Trial Court after taking into consideration oral as well as documentary evidence on record fixed quantum of maintenance allowance keeping in view the financial status of petitioner/ex-husband---Petitioner/ex-husband did not produce any documentary proof/ evidence in order to support his version---High Court declined quantum of maintenance allowance fixed by Trial Court to be termed as harsh as it was hardly sufficient in view of prevailing inflation, to meet needs of daily life of respondents/ex-wife and minor children---Petitioner/ex-husband was legally, morally and religiously bound to maintain his children at every cost and no exception could be taken to it---Petitioner/ex-husband was not able to establish and substantiate necessities of minor children, his affordability and sources of his income otherwise than determined concurrently by Courts below---Trial Court was not justified to grant maintenance allowance to the respondent/ex-wife after effectiveness of divorce rather it should have been granted till Iddat period only---High Court set aside the findings of Trial Court to the extent of award of maintenance allowance to respondent/ex-wife after iddat period and maintenance allowance was modified accordingly---Constitutional petition was allowed accordingly.

Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365; Muhammad Arif v. Uzma Afzal and others 2011 SCMR 374 and Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan Ltd. Karachi 1999 SCMR 1326 ref.

Mst. Yasmin Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613 rel.

Muhammad Mansoor Abbasi, Advocate Supreme Court for Petitioner.

Ms. Jamila J Aslam, Advocate Supreme Court along with Hafza Azid and Noor Imran for Respondent No. 3.

2023 M L D 2088

[Lahore (Rawalpindi Bench)]

Before Anwaar Hussain, J

FAYSAL BANK LIMITED and others---Petitioners

Versus

Ch. SHEHZAD MUNIR and others---Respondents

Civil Revisions Nos. 466, 467, 809 to 813 of 2022, heard on 22nd December, 2022.

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

----Arts. 76 & 77---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9---Secondary evidence---Non-issuance of notice---Principle---Petitioner/defendant/ Bank was aggrieved of order passed by Trial Court allowing respondents/plaintiffs to produce documents as secondary evidence---Plea raised by petitioner/Bank was that secondary evidence could not be adduced without issuing notice in such regard---Validity---Requirement of notice to be issued was relevant in a situation when a document was required to be produced from the possession of a person---Documents to be produced were no more in the possession of petitioner/Bank and had been submitted in another Court---No notice was required to be issued to Bank---Respondents/ plaintiffs had a prima facie case and they deserved permission to lead secondary evidence---High Court declined to interfere in permission to produce secondary evidence--- Revision was dismissed, in circumstances.

Muhammad Sharif through Legal Heirs and 4 others v. Sultan Hamayun and others 2003 SCMR 1221 and Messrs Expeditor International Pakistan (Pvt.) Ltd. v. Messrs Sitara Textile Industries Ltd. and 2 others 2018 CLC 994 ref.

Ossama Shahid Khawajah for Petitioners.

Mahar Abdul Shakoor for Respondent No. 1.

Nemo for Respondent No. 2.

2023 M L D 2109

[Lahore]

Before Masud Abid Naqvi, J

HADAYAT ULLAH (DECEASED) through Legal Heirs and others---Petitioners

Versus

PROVINCE OF THE PUNJAB through District Officer Revenue, Bhakkar

and others---Respondents

Civil Revision No. 3587 of 2011, decided on 30th March, 2022.

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

----S. 12---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for specific performance for agreement to sell---Transfer of propriety rights qua state land---Rejection of plaint---New cause of action, non-arising of---Suit and subsequently appeal filed by the predecessor of the plaintiffs were dismissed in the year 1995, however, the suit filed by the plaintiffs was favorably decreed in the year 2009 and appeal preferred by the (private) defendants was dismissed by the Appellate Court---Contention of the petitioners (private defendants) was that propriety rights had never been granted to them(private defendants) by the Province of the Punjab (' the Province')---Validity---Record revealed that suit filed by the predecessor of the plaintiffs was dismissed in the year 1995 on the ground that the defendants had not earned ownership by that time---Pleadings and other documents, available in the case, revealed that the propriety rights had not , admittedly, been granted to the petitioners (private defendants) by the Province (respondent), thus they (private defendants) were not owners of the disputed land and the same was still owned by the Province---Province, before granting propriety rights to the petitioners, had powers to deny the said rights to them incase of any violation of allotment policy etc.---After the dismissal of first suit for specific performance of same agreement to sell with the same subject matter and same relief against the petitioners (private defendants) and the Province (defendant/respondent) and thereafter dismissal of their appeal, no new cause of action arose in favour of plaintiffs/respondents to file second (present) suit---Plaintiffs/respondents, being successor-in-interest of the deceased (predecessor), again filed second suit for specific performance before cause of action arose as the alleged agreement to sell could not be enforced before the grant of propriety rights by the Province to the petitioners---Both the Courts below had failed to appreciate said material facts as well as provisions of law---High Court set-aside impugned judgments passed by both the Courts below---Consequently the plaint filed by the plaintiffs/respondents stood rejected under R. 11 of the O. VII of Civil Procedure Code, 1908---Revision was allowed, in circumstances.

Commissioner Multan Division, Multan and others v. Muhammad Hussain and others 2015 SCMR 58 ref.

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

----S. 11 & O. VII, Rr. 11, 13---Res judicata---Rejection of plaint---Principles---Rule 11 of the O. VII of Civil Procedure Code, 1908, can not be properly construed in isolation without understanding the theory of law with reference to its complementary provision, namely R. 13 of the O. VII of Civil Procedure Code, 1908, which clarifies the consequence of the rejection of the plaint by keeping the right of the plaintiff alive to present a fresh plaint even if based on "the same cause of action" notwithstanding the rejection of the plaint---This is a distinctly unusual provision which also marks a clear distinction from the provisions of S. 11 of the Civil Procedure Code, 1908, as the same not merely imposes a legal bar on an unsuccessful plaintiff but actually takes away the jurisdiction of the Court to try any suit or issue in which the matter directly or substantially in issue has also been in issue in a formal suit between the same parties litigating under the same title in Court of competent jurisdiction which has been "heard and finally decided", i.e. under the well known principle of res judicata which is one of the foundational principles of procedural law---Concept of rejection of plaint under R. 11 of the O. VII of Civil Procedure Code, 1908 read with R. 13 of the O. VII of Civil Procedure Code, 1908, is clearly distinct from that of a suit which is decided and disposed of in the normal course by a Court of competent jurisdiction after recording evidence---High Court set-aside impugned judgments passed by both the Courts below and consequently the plaint filed by the plaintiffs/respondents stood rejected under R. 11 of the O. VII of Civil Procedure Code, 1908---Revision was allowed, in circumstances.

Muhammad Shahzad Shaukat for Petitioners.

Faiz Muhammad Bilal and Najam Iqbal Bilal for Respondents.

2023 M L D 2118

[Lahore]

Before Rasaal Hasan Syed, J

LAHORE DEVELOPMENT AUTHORITY through Director General and Director Land Development and others---Petitioners

Versus

MUHAMMAD ARIF KHAN (DECEASED) through L.Rs. and others---Respondents

C.R. No. 1614 of 2011, decided on 2nd March, 2022.

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

----Ss. 54 & 56(d)---Suit for injunction---Government functions, restraining of---Respondents/plaintiffs were aggrieved of acquisition proceedings and sought permanent injunction against petitioner/Lahore Development Authority---Both the Courts below concurrently decided suit and appeal in favour of respondents/plaintiffs---Validity---Respondents/plaintiffs simply claimed permanent injunction which could be granted only if there were admitted rights either under a contract or under the statute, which were being violated---Respondents/plaintiffs failed to produce any proof of having been allowed adjustment of 06 Kanal and 13 Marla of residential unit and also failed to produce any record of adjustment---Respondents/plaintiffs could not simply sue for injunctive relief, particularly when such claim was disputed---Without seeking declaration of ownership of residential unit under sanction/approval of competent authority, suit for permanent injunction simpliciter was not maintainable---Land had been acquired, award was announced and Acquiring Authority or Land Acquisition Collector was to proceed with performance of statutory duties of taking over possession by removing encroachments for delivery of possession to persons who were entitled to have the same---No injunction could be granted to interfere with the performance of public duties of any department of Federal or Provincial Government in view of the bar under S. 56(d) of Specific Relief Act, 1877---Respondents/plaintiff did not produce exemption record nor any material or document was produced in evidence to prove that property was exempted/adjusted under Adjustment Policy, after compliance of legal formalities regarding pre-requisite for adjustment/exemption---Respondents/plaintiffs could not be granted any relief of injunction to restrain petitioners/Lahore Development Authority from performing their statutory duties---High Court set aside concurrent findings of facts by two Courts below as misreading and non-reading of oral as well as documentary evidence was made by the Courts below resulting into incorrect conclusions---High Court set aside judgment and decrees passed by two Courts below and dismissed the suit filed by respondents/plaintiffs as there was no admissible evidence to prove right of adjustment, application for its approval by competent authority, and compliance of preconditions for adjustment and payment of requisite charges for excess area---Revision was allowed, in circumstances.

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

----S. 115---Revision---Concurrent findings of facts by two Courts below---Effect---Where findings are based on mis-reading and non-reading of material evidence, misinterpretation and misconstruction of oral and documentary evidence and suffer from material illegality and jurisdictional error, exercise in revisional jurisdiction becomes necessary.

Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Samar Gul and others v. Mohabat Khan and others 2000 SCMR 974; Nabi Baksh v. Fazal Hussain 2008 SCMR 1454 and Nazim Ud Din and others v. Sheikh Zia Ul Qamar and others 2016 SCMR 24 rel.

Syed M. Ali Mehdi Bukhari for Petitioners.

Malik Noor Muhammad Awan for Respondents.

2023 M L D 2145

[Lahore]

Before Safdar Saleem Shahid, J

AHMED SHER and others---Appellants

Versus

KHUDA BAKHSH and others---Respondents

R.S.A. No. 137 of 2012, heard on 1st February, 2022.

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

----Art. 133---Fact not cross-examined---Effect---Any portion of statement which has been stated by witness, if not cross-examined, is considered to be admitted.

Muhammad Rafique and other v. Abdul Aziz 2021 SCMR 1805 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talb-i-Ishhad---Proof---Mentioning names of witnesses of notice of Talb-i-Ishhad in plaint is mandatory requirement of law.

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

----O. VI, R. 2---Plaint, necessary ingredients---All material facts have to be brought through pleadings.

(d) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for possession through pre-emption---Talb-i-Ishhad---Proof---Expression "acknowledgement due"---Scope---Postman not produced in evidence---Effect---Suit filed by respondent/pre-emptor was dismissed by Trial Court but Lower Appellate Court decreed the same---Validity---If mere "sending of notice" was enough, it would make the expression "acknowledgement due" redundant---Service of addressee, as prescribed in law was imperative---If acknowledgement card carried an endorsement of "refusal" or "not accepted" a presumption of service would arise unless rebutted---It was duty of pre-emptor to have produced postman through whom notice was allegedly served upon the vendee to prove that notices were actually sent to him at the right address and he received it or refused to receive it---In order to establish Talb-i-Ishhad, pre-emptor had to prove that notice was sent to vendee through registered post acknowledgement due card and its acknowledgement receipt was received by respondent/pre-emptor after its service on appellant/vendee---Only sending of notices through registered envelope was not sufficient---Intention of law was to ensure that notices were sent to proper address and "served" or "not served" report would show that condition of Talb-i-Ishhad was fulfilled or not---Lower Appellate Court did not rightly conclude issues on the basis of available record and evidence was not properly appreciated---Some of the documents and statements were not only misinterpreted but also were overlooked by lower Appellate Court---Issue regarding Talbs was not proved by respondent/pre-emptor---High Court set aside judgment and decree passed by lower Appellate Court and restored that of Trial Court---Second appeal was allowed, in circumstances.

Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235 and Khan Afsar v. Afsar Khan and other 2015 SCMR 311 rel.

Mst. Kalsoom Begum v. Rizwan Shah and others 2020 SCMR 2029; Liaqat Ali and others v. Safdar Khan 2020 SCMR 863; Daud Shah v. Waris Shah and others 2014 SCMR 852 and Muhammad Afzal and 2 others v. Mst. Marrayam Bibi 2007 CLC 20 distinguished.

Tahir Mahmood Khokhar for Appellants.

Muhammad Zubair Maan for Respondents Nos. 1-B and 1-D.

Zafar Abbas for Respondents Nos. 1-A and 1-C.

2023 M L D 32

[Peshawar]

Before S M Attique Shah, J

MUHAMMAD SADIQ alias SADIQ---Petitioner

Versus

The STATE---Respondent

Criminal M. B.A. No. 2763-P of 2021, decided on 26th August, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 9(1)(d), 27 & 31---Possession of narcotics---Power to issue warrants---Mode of making searches and arrest---Bail, grant of---Scope---Accused was charged for having been in possession of 5000 grams of heroin as well as chemical weighing 5000 grams---Police had allegedly conducted a raid on the accused person's house but neither any search warrant under S. 27 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 was obtained nor any lady constable was accompanied by raiding party at the time of raid---No independent witness had been associated by local police at the time of raid, which was mandatory under S. 31 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019---As per contents of FIR, the information was brought into the notice of high-ups by local police but there was nothing in black and white which could confirm the version of the prosecution---No other family member of the accused was arrested during raid of the house nor shown present at the relevant time---No document qua ownership of the house was available on file; which could suggest that the said house was ownership of accused---Accused, when produced before Magistrate, had recorded his statement under S. 164, Cr.P.C., wherein he had attributed maliciousness to the complainant---Nothing was available on record qua previous conviction or involvement of accused in such like offences, which could suggest that accused was a habitual offender, repeating the same offence---Accused was admitted to bail.

Noor Alam Khan for Petitioner.

Ms. Shakeela Bibi, A.A.G. for the State.

2023 M L D 73

[Peshawar (Abbottabad Bench)]

Before Mohammad Ibrahim Khan, J

BILAL AHMED---Petitioner

Versus

The STATE and another---Respondents

Criminal M. (Bail) No. 1196-A of 2021, decided on 2nd December, 2021.

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

----Ss. 497 & 164-B---Penal Code (XLV of 1860), S. 376---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), S. 53---Prevention of Trafficking in Persons Act (XXXIV of 2018), S. 3---Rape---Sexual abuse---Trafficking in persons---DNA test---Bail, grant of---Scope---Accused was directly charged in the FIR by the complainant for committing rape with his minor daughter---Medical report available on file negated version of the complainant---Medical officer had opined for gynecologist advice but the complainant had refused to get the examination conducted---No incriminating material was available on record to show any nexus of the accused with the commission of rape---Section 164-B, Cr.P.C., had not been complied with because no samples for DNA test had been obtained either from the accused or victim despite the fact that the word "shall" was used in the said provision, making its applicability mandatory---Investigation in the case had been complete and the accused was no more required to the prosecution for the very purpose---Case of accused called for further inquiry under subsection (2) of S. 497, Cr.P.C.---Bail application was allowed.

2016 SCMR 1523; 2014 MLD 190 and 2018 YLR Note 114 ref.

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

----S. 497---Bail---Scope---Bail does not mean acquittal of accused but only change of custody from government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced.

Haji Muhammad Nazir v. State 2008 SCMR 807 ref.

Muhammad Ishaq Battagrami for Petitioner.

Raja Muhammad Zubair, A.A.G. for the State.

Nemo for the Complainant.

2023 M L D 113

[Peshawar (Abbottabad Bench)]

Before Mohammad Ibrahim Khan and Shakeel Ahmad, JJ

Qazi MUHAMMAD AZHAR, ADVOCATE and another---Petitioners

Versus

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

Writ Petition No. 645-A of 2019, decided on 12th January, 2021.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Scope--- Petitioners sought issuance of a proper writ directing the respondents to ensure construction of an interchange in the larger public interest---Validity---Facility of separate interchange is required to be provided in order to avoid rush on the GT Road (Grand Trunk Road) and there is no direct approach to the city from main express highway/motorway---In the light of the facts and implied consent given by the Deputy Attorney General coupled with showing no objection by counsel appearing on behalf of National Highway Authority, the Prime Minister of Pakistan with a positive vision of ultimate facility for the people of the city at first consideration shall carry out the necessary initiative by processing PC-I (Planning Commission Form-I) for construction of interchange and thereafter National Highway Authority shall carry out the execution process within a time frame for earliest completion of the project---Constitutional petition was allowed.

Malik Masood-ur-Rehman Awan for Petitioners.

Muhammad Parvez Tanoli, D.A.G. for Respondent No. 1.

Tahir Faraz Abbasi for Respondent No. 2.

2023 M L D 168

[Peshawar]

Before Muhammad Naeem Anwar, J

Mst. NOOR JEHAN---Petitioner

Versus

UBAID ULLAH and another---Respondents

Civil Revision No. 1175-P of 2019, decided on 9th March, 2020.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Suit for declaration was filed by the petitioner---Interim relief/injunction was granted by Trial Court---Appellate Court dismissed such order of temporary injunction---Petitioner contended that she was owner in possession of the suit property on basis of ex parte decree of Family Court against her husband on ground of entries in column No. 16 of Nikahnama and that respondent had alienated the suit property---Respondent contended that said Nikahnama was forged/fictitious/fabricated; that husband went abroad and had never retuned back uptill now; that he had appointed the respondent as his power of attorney through registered deed; that respondent had alienated the property which was already in possession of vendees; and that order of trial Court granting temporary injunction was already dismissed by District Court---Validity---Admittedly, the person in possession in whose favour the registered deed/mutations were attested, were not before the Court as respondent---In the present case, there were 6 respondents against whom the petitioner intended to get a restraining order and the fact that vendees of respondent had already been arrayed as party before the trial Court but it was never requested before High Court till the day of argument for impleadment of such vendees in the array of the respondents---Present petition was not properly filed---Ownership was claimed to be acquired on basis of ex parte judgment/decree against husband who also was not arrayed as party---Power of attorney on basis of which alienation was made was not particularly challenged by the petitioner---Claims of the petitioner as to be legally wedded wife of husband and other facts claimed in the suit were yet subjudice before the trial Court and needed to be proved through evidence---Facts were strenuously opposed by the opposite side and petitioner's case was standing in need of evidence/proof---Valuable rights had been accrued in favour of vendees of registered deed, therefore, balance of convenience did not tilt in favour of the petitioner--- No irreparable loss except multiplicity of proceedings could be pointed out--- Revision petition was dismissed accordingly.

1987 CLC 2416 rel.

Jawad Khan for Petitioner.

Afroz Khan for Respondents.

2023 M L D 255

[Peshawar (Abbottabad Bench)]

Before Kamran Hayat Miankhel, J

ANYI SUNDY alias JOE---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous (B.A.) No. 41-A of 2022, decided on 14th March, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497--- Penal Code (XLV of 1860), 406, 409, 419, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Criminal breach of trust, cheating, forgery, criminal misconduct and money laundering---Bail, grant of---Statutory delay, principle of---Pre-condition---Accused was behind the bars for last 15 months and delay in conclusion of trial was not attributed to him---Validity---Statutory right to be released on bail flowed from the Constitutional right to liberty and fair trial under Arts. 9 & 10-A of the Constitution---Act or omission on the part of accused to delay timely conclusion of trial must be result of a visible concerted effort orchestrated by accused---Purpose and objective of law was to ensure that trial of an accused was conducted expeditiously and pre-conviction detention of accused did not extend beyond the period of one year in cases involving offences not punishable by death---If trial of accused was not concluded within one year of his detention, statutory right to be released on bail ripened in his favour---Bail was granted, in circumstances.

Amir v. The State PLD 1972 SC 277; Abdul Hakeem Khan v. The State 1981 PCr.LJ 607; Raheem Bux and others v. The State PLD 1986 Kar. 224; Aijaz Ahmad v. Tasawar Hyder 1988 PCr.LJ 1408 and Abdul Rehman v. The State 1978 PCr.LJ 589 rel.

Mirza Babar Shakeel and Sajjad ul Hassan Mughal for Petitioner.

Tauqeer-ur-Rehman, Assistant Attorney General for Respondents.

2023 M L D 296

[Peshawar]

Before Lal Jan Khattak and Muhammad Nasir Mahfooz, JJ

Mst. JEHAN PASA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 533-P of 2020, decided on 25th March, 2021.

Khyber Pakhtunkhwa Explosive Substances Act (XXV of 2013)---

----Ss. 5 & 6---Anti-Terrorism Act (XXVII of 1997), S. 7(ff)---Making or possessing explosives under suspicious circumstances---Forfeiture of property---Act of terrorism---Appreciation of evidence---Benefit of doubt---Scope---Accused was convicted for having been found with 5 kilograms of explosive substance---Ordinarily mere recovery of some utensil, a box or container from someone having some illegal material therein had never been considered enough to hold him responsible for possessing the banned item unless it was proved through reliable evidence that the carrier or possessor was aware of the existence of the illegal and banned material in the utensil, box or container recovered from him---Accused had confessed that she was going somewhere for her spiritual treatment with her son-in-law and grand-daughter and at the bus stop she was held up by the local police---Such stance could not be brushed aside easily as the investigating agency had not collected any material to show that she had conscious knowledge of the explosives---Only on the basis of recovery from the box, the accused could not be punished as it was a century old principle of criminal law that sans any conscious knowledge qua the crime the accompanier could not be held responsible---Appeal was accepted and the accused was acquitted of the charge, in circumstances.

Syed Abdul Fayyaz and A. Hashim for Appellant.

Mujahid Ali Khan, A.A.G. for the State.

2023 M L D 312

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali, J

Dr. HAZRAT KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 227-D of 2022, decided on 4th July, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 417 & 403---Constitution of Pakistan, Art. 13---General Clauses Act (X of 1897), S. 26---Appeal in case of acquittal---Person once convicted or acquitted not to be tried for same offence---Protection against double punishment---Scope---Petitioner sought special leave to appeal against order passed by Magistrate whereby respondents were acquitted under S. 249-A, Cr.P.C.---Record reflected that earlier, the petitioner had filed a complaint against respondents regarding same allegations as narrated in the present complaint---Special Judge, Anti-Corruption, after hearing both the sides, had dismissed the complaint by invoking the provisions of S. 203, Cr.P.C.---Under the law, nobody could be tried twice for the same offence on the basis of maxim "nemo debet bis vexari", which meant that no person could be tried for the second time for an offence with which he was previously charged---Said principle was fundamentally embodied in S. 403, Cr.P.C., S. 26 of the General Clauses Act, 1897 and Art. 13(a) of the Constitution of Pakistan---Matter had already been tried by the Court of competent jurisdiction---Petition was dismissed.

Sherin Bacha and others v. Namoos Iqbal and 3 others PLD 1993 SC 247 rel.

Umar Farooq Betani for Petitioner.

Nemo (Motion case) for Respondents.

2023 M L D 373

[Peshawar]

Before Rooh-ul-Amin Khan and Mohammad Ibrahim Khan, JJ

MUHAMMAD SAEED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 495-P of 2019, decided on 15th March, 2022.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Prosecution case was that fifty kilograms of charas in fifty packets were recovered from secret cavities of the car of the accused persons---According to the murasila and statement of Seizing Officer, he recovered 50 packets of charas weighing 50000/-grams (50 KGs) grams from the secret cavities of the vehicle in question but he had only mentioned weighment of two packets i.e. 1000/1000 whereas, failed to mention weighment of remaining 48 packets---Circumstances established that the prosecution had been unable to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Chemical analysis---Delay of eight days in sending the samples for analysis---Scope---Prosecution case was that fifty kilograms of charas in fifty packets were recovered from secret cavities of the car of the accused persons---According to the Forensic Science Laboratory Report the samples were received there on eighth day of recovery whereas, according to the statement of Seizing Officer, the same were separated for analysis on the day of occurrence with a delay of 08 days without any explanation---Mohrrar of the Police Station had also admitted during his cross examination that he sent the samples after a delay of about 08 days however, nothing for its sending late to the Forensic Science Laboratory had been put forward to be relied upon---Even no plausible explanation had been furnished by the Seizing Officer or by the Investigating Officer to the effect that the samples remained in safe custody from the date of registration of the FIR till its receipt in the Forensic Science Laboratory therefore, safe custody of parcels of samples had not proved by the prosecution in the case, which was mandatory requirement of the law---Statements of Seizing Officer as well as Investigating Officer were silent regarding the safe custody of the samples---Circumstances established that the prosecution had been unable to prove its case against the accused beyond any shadow of doubt--- Appeal against conviction was allowed, in circumstances.

Zubair Khan v. The State 2021 SCMR 492; Qaiser Khan v. The State 2021 SCMR 363; Mst. Sakna Ramzan v. The State 2021 SCMR 451; Javed and 2 others v. The State 2020 YLR 311; Abdul Ghani and others v. The State 2019 SCMR 608; Zahir Shah alias Shat v. The State 2019 SCMR 2004 and Kamran Shah and others v. The State 2019 SCMR 1217 ref.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Safe custody and safe transmission of samples from the police station to the Forensic Science Laboratory---Scope---Prosecution case was that fifty kilograms of charas in fifty packets were recovered from secret cavities of the car of the accused persons---Record showed that the samples from the police station to Forensic Science Laboratory for its analysis had been handed over to Constable but neither he had been cited as witness on complete challan nor he had been examined to support the version of prosecution regarding the safe transmission of the charas to the Forensic Science Laboratory---By not producing the material witness by the prosecution, there existed no chain to prove the safe custody of the samples to the Forensic Science Laboratory---Missing chain created serious doubts in the authenticity and credibility of the Forensic Science Laboratory Report---Circumstances established that the prosecution had been unable to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Qaiser Khan v. The State through Advocate General Khyber Pakhtunkhwa 2021 SCMR 363 and The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Statements of witnesses---Inconsistency---Prosecution case was that fifty kilograms of charas in fifty packets were recovered from secret cavities of the car of the accused persons---Record showed that the Investigating Officer and complainant were not consistent with regard to the arrival of Investigating Officer to the spot as the former admitted in his cross examination that he conducted investigation from 1600 hours till 1700 hours however, the complainant had admitted that the Investigating Officer arrived on the spot after 2230 hours---Prosecution also did not establish case against accused/front seater as none of the witnesses had uttered a single word with regard to conscious knowledge of the said accused in respect of the availability of contraband in the vehicle in question---Paramount duty of the prosecution was to lead a trust worthy evidence to enable the court to believe that the accusations made against the accused were just, trust worthy and did not create even a single doubt to bring home the charges against him/them---Circumstances established that the prosecution had been unable to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Farhana Naz Marwat and Shabina Noor for Appellant.

Mujahid Ali Khan, Additional A.G. for the State.

2023 M L D 416

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

MUHAMMAD NAWAB KHAN---Petitioner

Versus

BAHADER SHER---Respondent

Civil Revision No. 04-B of 2018, decided on 26th September, 2022.

(a) Malicious prosecution---

----Damages---Recovery of damages---Acquittal from criminal case---Effect---Respondent/plaintiff after his acquittal from criminal charge, sought recovery of damages for malicious prosecution against petitioner/defendant who had registered criminal case against him---Two Courts below decreed the suit in favour of respondent/plaintiff---Validity---Every case, which ends in acquittal does not ipso facto entitle the acquitted accused to sue for damages, as in that eventuality, damage caused would be beyond repair and criminal justice system would come to a halt---By doing so, aggrieved person would suffer at the hands of incompetent investigation and people would lose courage to register their claims and the same would in turn lead to a chaos---Burden remains on the person, claiming damages, to prove that the charge against him was outcome, of malice and mala fide and that the sole purpose was to tarnish his character and damage his reputation---For malicious prosecution, it was the bounden duty of respondent/ plaintiff to convince Court of competent jurisdiction, that proceedings against him were outcome of malice and mala fide---Petitioner/ defendant charged both rival groups that by itself was sufficient to tell that petitioner/defendant had no mala fide against plaintiff/ respondent, rather he acted with bona fide---If there had he any malice, he would have singularly charged plaintiff/respondent---High Court set aside judgments and decrees passed in favour of respondent/plaintiff, as both the Courts below fell into error and failed to appreciate the issue in its true perspective---Revision was allowed accordingly.

Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700; Abdul Rasheed v. State Bank of Pakistan PLD 1970 Kar. 344 and Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478 rel.

(b) Malicious Prosecution---

----Recovery of damages---Preconditions---For a claimant to succeed in action for malicious prosecution, must plead and prove, with credible and cogent evidence, fulfillment of following ingredients: (i) plaintiff was prosecuted by defendant; (ii) prosecution ended in favour of plaintiff; (iii) defendant acted without reasonable and probable cause; (iv) defendant was actuated by malice with improbable motive and not to further the ends of justice; and (v) proceedings interfered with plaintiff's liberty and had also affected his reputation and plaintiff had suffered damages.

(c) Damages---

----Object, purpose and scope---Law for damages is enacted with the sole purpose to discourage frivolous litigation---Such is the only tool which can curb the menace.

(d) Words and phrases---

----'Malice'---Defined.

Black's Law Dictionary rel.

Gul Diaz Kha Wazir for Petitioner.

Zahid-ul-Haq for Respondent.

2023 M L D 478

[Peshawar (Abbottabad Bench)]

Before Kamran Hayat Miankhel, J

Raja MOHAMMAD TAHIR AYUB---Petitioner

Versus

MOHAMMAD IRFAN QURESHI---Respondent

Civil Revision No. 295-A of 2014, decided on 19th September, 2022.

Civil Procedure Code (V of 1908)---

----O. XX, R. 14---Pre-emption decree---Execution proceedings---Limitation, computation of---Principle---Petitioner/decree holder filed suit for recovery of possession through pre-emption which was decreed in his favour---Execution petition filed by petitioner/decree holder was dismissed by Executing Court and Lower Appellate Court---Validity---Provision of O. XX, R. 14, C.P.C. were mandatory in nature---Decree for preemption was conditional degree where petitioner/decree holder was to fulfill two conditions---Firstly, petitioner/decree holder was to deposit in Court purchase money together with costs if any, decreed against him and secondly deposit was to be made on or before the date fixed by Court---Such provision of C.P.C. contained penal consequences of dismissal of suit in case petitioner/decree holder failed to make payment of purchase money in Court on or before the date fixed in decree---Once petitioner/decree holder performed his part of obligation as per directions contained in decree, then he automatically had become owner of the property and was entitled for possession---Concerned revenue authorities were bound to implement decree for the purpose of record of rights without any order from Executing Court---In case authorities concerned failed to do the needful, then petitioner/decree holder could file application for execution of decree--- In such circumstances, time for the purpose of limitation was to be reckoned from the date of default in performance of obligation by revenue authorities---High Court directed Executing Court to execute decree in favour of petitioner/decree holder and set aside judgments and orders passed by two Courts below---Revision was allowed accordingly.

Maulvi Abdul Qayyum v. Sayed Asghar Ali Shah and 5 others 1992 SCMR 241; Dr. Niaz Muhammad Mann and others v. Sheikh Muhammad Ahmad and another 1988 SCMR 1016; Mst. Niaz Bibi through LRs v. Ghulam Mustafa and others PLD 2011 SC 520 and Nazar Hussain and another v. Member Board of Revenue (Judicial-III), Punjab and others 2019 MLD 1876 rel.

Siraj Hussain for Petitioner.

Nemo for Respondent.

2023 M L D 520

[Peshawar]

Before Qaiser Rashid Khan, CJ

SHAD NABI---Petitioner

Versus

NAIMAT KHAN and another---Respondents

Bail Petition No. 1402-P of 2021, decided on 28th May, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention--- Bail, refusal of--- Absconsion--- Rule of consistency---Scope---Accused along with two others was alleged to have murdered the brother the complainant---30 empties of 7.62 bore were retrieved from the spot which as per the report of Forensic Laboratory had been fired from different weapons---Given the fact that the accused along with his co-accused had been directly nominated by the complainant for firing at his deceased brother with their respective firearms with which he sustained multiple firearm injuries and died on the spot, coupled with the report of Forensic Laboratory pointing towards the involvement of more than one accused in the commission of offence, the accused was prima facie connected with the commission of offence attracting prohibitory limb of S. 497, Cr.P.C.---Argument that co-accused with a similar role of firing at the deceased had been acquitted by the Trial Court carried little weight---While co-accused had faced trial, the accused had preferred to abscond and had surrendered barely a month after the acquittal of his co-accused---Moreover, the other co-accused was still fugitive from law---Bail application was dismissed, in circumstances.

Astaghfirullah and Shahab Khattak for Petitioner.

Respondent/Complainant in person.

Niaz Muhammad, A.A.G. for the State.

2023 M L D 576

[Peshawar]

Before Mohammad Ibrahim Khan, J

NOOR AJAB and 3 others---Petitioners

Versus

AHMED NAWAZ KHAN and 2 others---Respondents

Civil Revision No. 733-A of 2016, decided on 1st February, 2021.

Civil Procedure Code (V of 1908)---

----O. XIV, R. 2--- Limitation--- Issue of law--- Respondent filed declaratory suit along with perpetual injunction and possession against petitioners---Petitioners contested the suit---Trial Court decreed the suit---Petitioners filed appeal before appellant Court---Appellant court dismissed the appeal of petitioners---Revisional jurisdiction---Held, that Trial Court had not farmed the issues in the suit with the perspective prayers in the plaint and in the written statement----Issue pertaining to limitation had not been raised in written statement but as it was legal issue and the plaintiff has to prove if at all entitled to any decree within the ambit of its limitation---As the issues were re-framed by High Court, therefore the parties were to be allowed to lead their respective evidence or else even if the parties wanted to rely on the already recorded evidence---Parties could record their statements before Trial Court---Civil revision was allowed , impugned judgments and decrees of the Trial Court and Appellate Court were set-aside and case in hand, was remanded back to the Trial Court to proceed with the matter in accordance with law.

Hassan U.K. Afridi for Petitioners.

Afroz Ahmad for Respondents.

2023 M L D 643

[Peshawar]

Before Lal Jan Khattak, J

AKHTAR MUHAMMAD---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous B.A. No. 4050-P of 2021, decided on 17th December, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 9(d) & 11(b)---Possession of narcotics---Bail, grant of---Contradictory evidence---Un-natural conduct---Non-association of independent witnesses---Scope---Accused sought bail after arrest in an FIR lodged under Ss. 9(d) & 11(b) of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019---Contraband, as per FIR, was recovered on 29.8.2021 while according to the entries made in Register XIX (Store-Room Register), the contraband was recovered on 28.8.2021---Such contradiction in the documents had put the case against accused under heavy doubt---Site plan showed that place of occurrence was a public place where the police squad/party could be noticed from a considerable distance---In such situation, despite having a vehicle, no attempt on the part of accused for his escape was made---Recovery of narcotics from the fuel tank of the vehicle, without disclosing the alternate source enabling the vehicle to move, was a debatable question to be resolved by the Trial Court---No independent witness had been associated with the alleged recovery---Investigation was complete and the accused was no more required to the prosecution for the very purpose, therefore, his further incarceration in jail would not serve any useful purpose---Bail petition was accepted, in circumstances.

Shabina Noor for Petitioner.

Umar Farooq, A.A.G. for the State.

2023 M L D 688

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

LIAQAT ZARIN and 5 others---Petitioners

Versus

Mst. NOORUL HARAM and another---Respondents

W.P. No. 1120-M of 2018 with Interim Relief (N), decided on 4th July, 2022.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S. 12(2)---Partition of property---Separating share settled in compromise---During proceedings between parties application under S. 12(2), C.P.C. was filed by husband of respondent who sought separation of his share from suit property under partition---Lower Appellate Court directed to separate share of husband of respondent from partition of suit property---Plea raised by petitioners was that husband of respondent had separate cause of action---Validity---Not a single document was available to show that petitioners and other legal heirs of predecessor-in-interest of parties had resiled from compromise, on the basis of which application under S. 12(2), C.P.C. filed by husband of respondent was dismissed as withdrawn---If that would have been so, husband of respondent would have a fresh cause of action but nothing was available in black and white to show even remotely that parties to applications 12(2), C.P.C. had resiled from compromise, therefore husband of respondent was not to file fresh suit---High Court declined to interfere in the order passed by Lower Appellate Court in exercise of a revisional jurisdiction, as order in question was result of proper and fair exercise of jurisdiction vested in it---Petitioners failed to point out any illegality or irregular, excess of jurisdiction or improper exercise of jurisdiction---Constitutional petition was dismissed, in circumstances.

Mst. Parveen (deceased) through LRs v. Muhammad Pervaiz and others 2022 SCMR 64; Amjad Khan v. Muhammad Irshad (deceased) through LRs 2020 SCMR 2155 and Mst. Mobin Fatima v. Muhammad Yamin and 2 others PLD 2006 SC 214 rel.

Abdul Qayum for Petitioners.

Ihsanullah for Respondents.

2023 M L D 714

[Peshawar]

Before Lal Jan Khattak and Abdul Shakoor, JJ

YASIR IQBAL---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 794-P of 2020, decided on 14th July, 2022.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Ocular account supported by medical evidence---Scope---Accused was charged for committing murder of the brother of complainant by stabbing---Ocular account had been furnished by three eyewitnesses comprising driver and passengers of the coach wherein the deceased was stabbed to death---Driver of the coach stated that he noted that head of the deceased was resting against the pane of window and the accused was holding a knife in his hands---Said witness was a natural witness being driver of the coach wherein the occurrence took place who had deposed in a very natural way about the occurrence---Said witness had no enmity or ill-will towards the accused to falsely implicate him in the case, therefore, his testimony could not be discarded---Evidence furnished by said witness had been supported by two other witnesses who were travelling in the coach---Other eyewitness at the relevant time was sitting on the last seat of the vehicle with the accused and the deceased---Said witness deposed that after covering a journey of 15/20 minutes when the vehicle reached near the cattle market there the accused attacked the deceased with knife with which he received injuries on his person whereafter other passengers present in the vehicle overpowered him and took the knife from him---Like evidence was furnished by other eyewitness who too was present in the vehicle as one of the passengers---All the three prosecution witnesses had deposed in a very eloquent and natural way about the occurrence---Said witnesses were independent witnesses having no personal grudge to depose falsely against the accused---Ocular account was supported by medical examination of the deceased according to which he had two injuries on vital parts of his body caused by knife---Besides, from possession of the accused, the knife with which he had caused injuries to the deceased too was recovered---In addition, from the seat of the vehicle where the deceased was sitting blood had been recovered and also the Investigating Officer took into possession the last worn blood stained clothes of the accused as well that of the deceased---Furthermore, complainant of the case appeared before the court who deposed quite in line with what he had reported in his initial report---Thorough and careful examination of the case record would show that the prosecution had proved its case against the accused through cogent and reliable evidence and beyond any reasonable doubt---However, due to some mitigating circumstances the sentence was reduced to imprisonment for a period of ten years---Appeal was partially allowed with modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Scope---Accused was charged for committing murder of the brother of complainant by stabbing---Record showed that the accused had no enmity with the deceased or any of his family members---According to the record, the accused and the deceased met each other by chance in the coach and seated on rear seat of the vehicle close to one and other when all of a sudden the occurrence took place without any premeditation---Though the defense did not endeavor to bring the case of accused within the parameter of S. 302(c), P.P.C. as no suggestion of any kind was given to the prosecution witnesses that the accused had resorted to take the extreme step of taking the deceased life under sudden and grave provocation or under the heat of passion nor the accused himself took such plea in his statement recorded under S. 342, Cr.P.C---In order to know about the root cause of the incident and to do complete justice, police file was perused, it was found therein that the statement of accused recorded under S. 161, Cr.P.C---According to the statement of accused, he was seated in the vehicle on its rear seat with the deceased and shortly after covering some distance he requested the deceased who was seated against the window seat to slide the window pane so that fresh air could come as he i.e. the accused was not feeling well and was about to vomit which request was turned down by the deceased by uttering in "Pashto" on which hot words were exchanged between the two whereupon the accused took out a knife and pushed it into the deceased body as a result he received injuries with which subsequently he died---Circumstances established that the prosecution had proved its case against the accused but due to some mitigating circumstances the sentence was reduced to imprisonment for a period of ten years---Appeal was partially allowed with modification in sentence.

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

----S. 302--- Qatl-i-amd--- Offence committed without any premeditation---Scope---If some offence is committed without any premeditation and in the heat of passion and at the spur of moment then in such like situation, the courts of law normally award minimum sentence to the accused by bring his case under S. 302(c), P.P.C.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Scope---Accused was charged for committing murder of the brother of complainant by stabbing---In the present case, there was no material on the record that just before the occurrence what else had happened than what was disclosed by the accused in his 161, Cr.P.C. statement---Whether it was mere refusal of the deceased to slide the window pane or he had uttered something else towards the accused shrouded in mystery which aspect of the case coupled with the fact that both the parties were not known to each other before the occurrence and that the exceeded action of the accused was neither pre-meditated one nor it was done with any pre-existing mind could be considered to hold that the murder committed by the accused squarely fell within the ambit of S. 302(c), P.P.C., instead of S. 302(b), P.P.C.---Sentence was reduced to imprisonment for a period of ten years---Appeal was partially allowed with modification in sentence.

Abid Mehmood for Appellant.

Muhammad Nisar Khan, Additional A.G. for the State.

Jehanzeb Khan Khalil for the Complainant.

2023 M L D 733

[Peshawar (Abbottabad Bench)]

Before Kamran Hayat Miankhel, J

ZAMURAD KHAN---Petitioner

Versus

GHULAM RABANI and 3 others---Respondents

Civil Revision No. 63-A of 2021, decided of 15th November, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 8---Suit for declaration, permanent injunction and possession--- Un-partitioned property--- Maintainability--- Scope---Petitioners filed a suit for permanent injunction and possession against their co-sharers with the contention that they were in possession of their respective shares as a result of private partition---Trial Court and Appellate Court concurrently rejected the plaint---Validity---Parties were co-sharer in the disputed property along with other co-sharer, hence, they could not seek permanent injunction and possession against the other co-sharer, rather they should have filed a suit for partition before proper forum---No suit for declaration, permanent injunction and possession could be filed by a co-sharer against other co-sharer and only remedy for him was to ask for partition of the suit property---Petitioners had failed to point out any illegality or irregularity committed by the lower courts while passing the impugned judgments and decrees warranting interference by the High Court in its revisional jurisdiction---Revision petition was dismissed.

Mst. Resham Bibi and others v. Lal Din and others 1999 SCMR 2325 rel.

Muhammad Riaz and another v. Mumtaz Ali through, Legal Heirs and others 2006 YLR 1071 and Zulfiqar and others v. Noor Muhammad and others 2002 CLC 711 ref.

2023 M L D 759

[Peshawar (Abbottabad Bench)]

Before Fazal Subhan, J

RASHIM KHAN---Petitioner

Versus

FIDA HUSSAIN and 2 others---Respondents

C.R. No. 20-A of 2022, decided on 27th September, 2022.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), Ss. 54 & 9---Khyber Pakhtunkhwa Tenancy Act (XXV of 1950), Ss. 25, 28, 33, 34 & 35---Suit for perpetual injunction and possession---Rejection of plaint---Restriction on ejectment---Relief for wrongful dispossession or ejectment---Bar to civil suits---Scope---Petitioner assailed rejection of his plaint by the courts below---Petitioner had instituted a suit for permanent injunction and in alternate for possession, contending therein that he was tenant-at-will in the suit property and that the respondent was pressurizing him to vacate the property---Validity---Stance of petitioner as tenant-at-will was established and the respondent had not denied the tenancy rights of the petitioner---Petitioner, through a suit before Civil Court, could not seek a restraining order against the actual owners for deriving any benefits therefrom, if in case of infringement of his rights in respect of tenancy then he could safely resort to relief as contained in S. 28 read with S. 33 of the Khyber Pakhtunkhwa Tenancy Act, 1950---Respondent also could not eject the petitioner without resort to the relevant forum, through petition under S. 25 of the Khyber Pakhtunkhwa Tenancy Act, 1950---Revision petition was dismissed.

Dildar Ahmed Khan Lughmani for Petitioner.

Munir Hussain Lughmani for Respondents.

2023 M L D 777

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

IZHAR ULLAH---Petitioner

Versus

The STATE and another---Respondents

B.A. No. 583-M of 2022, decided on 19th August, 2022.

(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 juvenile on bail---Delay in conclusion of trial---Accused sought bail on the ground of statutory delay in conclusion of trial under S. 6 of Juvenile Justice System Act, 2018---Accused was behind bars for the last 15 months---Order sheets of the Trial Court were indicative of the fact that neither the accused nor his counsel had made any visible and active attempt to delay the conclusion of the trial, therefore, in view of the statutory command the accused had earned a right of bail---Bail application was allowed, in circumstances.

(b) Juvenile Justice System Act (XXII of 2018)---

----S. 6---Criminal Procedure Code (V of 1898), S. 497---Release of a juvenile on bail---Delay in conclusion of trial---Scope---Juvenile offender has a statutory right to be released on bail, if his trial is not concluded within six months---Section 6 of Juvenile Justice System Act, 2018 clearly indicates that like third proviso to S. 497, Cr.P.C., the same is not controlled by any other factors like proviso four to S. 497, Cr.P.C., and as such it is statutory duty of the prosecution to complete the trial by all possible means within six months, otherwise a juvenile offender shall have the right to be released on bail.

Shakeel Shah v. The State and others 2022 SCMR 1; Nadeem Samson v. The State and others PLD 2022 SC 112 and Ali Asghar v. The State and others 2022 SCMR 970 rel.

(c) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---Criminal trial---After insertion of Article 10-A of the Constitution, the due process of law including speedy and fair trial has been recognized as a fundamental right of every accused person---Policy of criminal law is to bring an accused person to justice as speedily as possible and if he is found guilty he may be punished and if he is found innocent he may be acquitted.

Mujahid Farooq for Petitioner.

Alam Khan Adenzai, Assistant A.G. and Muhammad Mushtaq Khan for the State.

2023 M L D 855

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

BILAL AHMAD---Appellant

Versus

The STATE through A.A.G.---Respondent

Criminal Appeal No. 289-M of 2021, decided on 20th June, 2022.

Penal Code (XLV of 1860)---

----Ss. 420, 463, 468 & 471---Cheating, forgery and using forged document as genuine---Appreciation of evidence---Accused was a police official who was alleged to have used a motorcycle with fictitious number plate---Trial Court convicted the accused for cheating and forgery and sentenced him to imprisonment for three years---Validity---Fixing of fictitious number plate on motorcycle would have been an offence under Motor Vehicle Ordinance, 1965 but provision of S. 473, P.P.C. could not be attracted---Applicability of provision of S. 420, P.P.C. was not attracted as accused had not dishonestly induced anyone for delivery of any property---Similarly, provision of S. 468, P.P.C. was also not attracted against accused, as he had not committed any forgery for the purpose of cheating---High Court set aside conviction and sentence awarded to accused and acquitted him of the charge as prosecution failed to prove its case against him---Appeal was allowed in circumstances.

Tariq Pervaiz v. The State 1995 SCMR 1345; Muhammad Zamin v. The State and others 2014 SCMR 749; Muhammad Akram v. The State 2009 SCMR 230 and Ghulam Qadir and others v. The State 2008 SCMR 1221 rel.

Ishaq Shah, Muhammad Ishaq (Khalil), Ghulam Mohy-ud-Din Malik and Muhammad Farooq Malik for Appellant.

Haq Nawaz, Assistant A.G. for the State.

2023 M L D 891

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

ROZI KHAN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others---Respondents

C. R. No. 163-M of 2022, decided on 23rd June, 2022.

(a) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss. 42 & 44---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---First settlement record of rights---Presumption of correctness---Petitioner/plaintiff claimed to be owner of land used for public path---Trial Court and Lower Appellate Court dismissed suit and appeal filed by petitioner/plaintiff---Validity---Petitioner/plaintiff was to prove his case on the basis of his own evidence and he could not be allowed to draw any benefit from weakness or lapses of defendant's evidence---Strong presumption of correctness and authenticity was attached to entries made during the course of first ever settlement of record of rights---High Court declined to interfere in concurrent findings of facts and law of two Courts below as the same were in accordance with available evidence of parties and neither suffered from any misreading or non-reading of evidence nor from any illegalities or material irregularities---Revision was dismissed, in circumstances.

Qahaim Khan and 4 others v. Amar Khan and 2 others 2022 CLC 335; Muhammad Latif v. Bashir Ahmed and 7 others 2004 CLC 1010; Abdul Waheed v. Muhammad Bilal PLD 2005 Pesh. 19; Haji Allah Bakhsh v. Abdullah Khan and others 2001 SCMR 363; Nawab Khan and others v. Said Karim Khan and others 1997 SCMR 1840; Faqir Muhammad Khurshid and others v. Chief Administrator of Auqaf PLD 1987 SC 60; Makhdum Hasan Baksh v. Ilahi Bakhsh and others (1913) 48 P R 27; Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21; Shahbaz Gul and others v. Muhammad Younas Khan and others 2020 SCMR 867; Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984; Cantonment Board through Executive Officer, Omit. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309; Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 and Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13 rel.

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

----S. 3---Limitation, question of---Determination---Principle---It is duty of Court to adhere to question of limitation as S. 3 of Limitation Act, 1908, requires from a Court of law to address questions of limitation even if the same has not been taken as a defence by party.

Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872 rel.

Israr Ahmad for Petitioner.

2023 M L D 924

[Peshawar]

Before Rooh-ul-Amin Khan, J

HARIS---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 939-P of 2021, decided on 1st April, 2022.

(a) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----Ss. 9(d) & 11(b)---Possession and transportation of narcotics---Appreciation of evidence---Sentence, reduction in---Prosecution case was that 1010 grams of charas and 755 grams Ice was recovered from the possession of the accused---Complainant and recovery witness had furnished ocular account of the occurrence---Complainant reiterated same story of the arrest of accused and recovery of narcotics from his possession, as set forth by him in the FIR---Recovery witness deposed that in his presence, complainant apprehended the accused and from polythene bag in his possession, recovered 1010 grams of charas and 755 grams of Ice---After separating samples, the complainant took the remaining quantity into possession through recovery memo in his presence, which bore his signature as its marginal witness---Both the said prosecution's witnesses had been subjected to lengthy and taxing cross-examination but nothing beneficial to defence could be extracted from their mouths---Said witnesses remained stuck to their stance and corroborated each other on all material aspects of the occurrence such as the day, date, time and place of occurrence and the mode and manner of arrest of the accused and recovery of narcotics from his possession---Recovered contraband narcotics had been produced before the Trial Court in the statement of recovery witness---Nothing in black and white was available on file to show any ill will or enmity of the witnesses with the accused so as to suggest his false implication---Circumstances established that the prosecution had proved its case against the accused, however, conviction of the accused under S. 11(a) was converted to 9(b) of the Act and his sentence was modified from ten years rigorous imprisonment to fifteen months rigorous imprisonment---Appeal was dismissed with said modification in sentence.

(b) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----Ss. 9(d) & 11(b)---Possession and transportation of narcotics---Appreciation of evidence---Sentence, reduction in---Chain of safe custody---Scope---Prosecution case was that 1010 grams of charas and 755 grams of Ice was recovered from the possession of the accused---Prosecution had also proved the chain of circumstances with regard to sending samples from the spot to the Forensic Science Laboratory through cogent evidence---Moharrir deposed that Constable handed over to him Murasila and the accused along with case property for safe custody and onward transmission of the samples to the Forensic Science Laboratory---Said witness made entry in Register No. 19---Moharrir handed over the samples to Constable along with Rahdari receipt for its onward transmission to the Forensic Science Laboratory---Foot Constable deposed that Moharrir of the Police Station handed over to him parcels Nos. 1 and 2 containing samples of charas and Ice, respectively, along with receipt of Rahdari for its onward transmission to the Forensic Science Laboratory---Said witness took the samples to the Forensic Science Laboratory and returned receipt which was placed on the samples had been received in the Laboratory with promptitude---Positive Forensic Science Laboratory report qua samples containing protocols of test applied further supplemented the testimony of the Seizing Officer---Accused did not opt to appear in the witness box as his own witness or to produce defence evidence to rebut the prosecution evidence---Record showed that Court had arrived at a conclusion that the prosecution had proved its case against the accused through cogent and confidence inspiring evidence---Circumstances established that the prosecution had proved its case against the accused, however, conviction of the accused under S. 11(a) was converted to 9(b) of the Act and his sentence was modified from ten years rigorous imprisonment to fifteen months rigorous imprisonment---Appeal was dismissed with said modification in sentence.

(c) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----Ss. 9(d) & 11(b)---Possession and transportation of narcotics---Appreciation of evidence---Sentence, reduction in---Prosecution case was that 1010 grams of charas and 755 grams of Ice was recovered from the possession of the accused---Forensic Science Laboratory Report showed that the samples were found as charas and Amphetamine---Accused had already served the sentence for the recovery of 1010 grams of charas, whereas, for recovery of 755 grams of amphetamine, his case fell within the ambit of S. 9(b) of the Act---Conviction of the accused under S. 11(a) was converted to 9(b) of the Act and his sentence was modified from ten years rigorous imprisonment to fifteen months rigorous imprisonment---Appeal was dismissed with said modification in sentence.

Kamran Ahmad for Appellant.

Khalid Rehman, A.A.G. for the State.

2023 M L D 940

[Peshawar]

Before Qaiser Rashid Khan and Muhammad Ayub Khan, JJ

AHMAD KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Finance, Government of Pakistan, Islamabad and 4 others---Respondents

W.P. No. 1147-P of 2017, decided on 27th March, 2018.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Contract officials---Compensation for legal heirs, payment of---Petitioners were legal heirs of deceased officials who laid their lives while escorting Polio Workers during Polio Eradication Campaign---Grievance of petitioners was that instead of full compensation of Rs. 3 million they were given only Rs.300,000---Plea raised by authorities was that the deceased officials were employed on contract basis and were not regular employees---Validity---Deceased-Shahuda were engaged on contract basis and they embraced martyrdom while performing their duties with Polio Eradication Team in Khyber Agency---Deceased officials should not have been treated with different yardstick---Authorities should display a degree of fairness while framing the policies, especially in cases where officials/employees knowing well the nature and sensitivity of their job description still go all out to perform their duties and in the process, met with fateful incidents such as in the present case---High Court directed the authorities to pay balance amount of Rupees 2.7 million to legal heirs of Shaheed Officials---Constitutional petition was allowed accordingly.

Muhammad Shabbir Khalil for Petitioner.

Mansoor Tariq, Assistant Attorney General for the Federation.

Muhammad Adil Khan for FDMA.

2023 M L D 1009

[Peshawar (Mingora Bench)]

Before Muhammad Nasir Mahfooz and Wiqar Ahmad, JJ

Mst. HALEEMA and others---Appellants

Versus

The STATE through A.A.G. and others---Respondents

Criminal Appeal No. 21-M and Criminal Revision No. 7-M of 2017, decided on 4th March, 2021.

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

----Ss. 337-A(i), 337-F(i), 337-L, 336, 336-B & 34---Shajjah-i-khafifah, ghayr-jaifah-mudihah, hurt, Itlaf-i-salahiyyat-i-udw, hurt by corrosive substance (acid), common intention---Appreciation of evidence---Ocular account supported by medical evidence---Accused sprayed acid on the face of complainant with a syringe, while other accused had thrown on her acid present in a jerry can, as a result of which she had received severe burns on her face and rest of her body---Complainant was sole eye-witness of the occurrence---In her examination-in-chief she had stated that after opening fast they had been eating water melon on the day of occurrence when accused went to her house situated adjacent to house of the complainant and her step-daughter, co-accused came there and sprayed acid on her face through a syringe while other accused also came thereafter and threw further acid on her head, as a result of which her face, nose, head and other parts of her body got burnt---Neighbours as well as her son were stated to have carried the complainant to hospital where she had lodged report of the occurrence against the accused persons---Said witness was cross-examined by defence side but she had remained firm, consistent and nothing beneficial to the case of the accused persons could be brought out from her mouth during the course of her cross-examination---Statement of the Medical Officer fully corroborated version of the complainant taken in her first report as well as in her examination-in-chief---Both the statements of complainant as well as Medical Officer were in complete harmony with each other---Statement of the Medical Officer regarding her findings of injuries on the hands and other parts of body of accused had further fortified her presence and the factum of participation in the occurrence---Circumstances established that prosecution had been able to prove case against both the accused persons beyond a shadow of doubt---Appeal against conviction was dismissed.

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

----Ss. 337-A(i), 337-F(i), 337-L, 336, 336-B & 34---Shajjah-i-khafifah, ghayr-jaifah-mudihah, hurt, Itlaf-i-salahiyyat-i-udw, hurt by corrosive substance (acid), common intention---Appreciation of evidence---Recovery of syringe and canister from the place of occurrence---Accused sprayed acid on the face of complainant with a syringe, while other accused had thrown on her acid present in a jerry can, as a result of which she had received severe burns on her face and rest of her body---Corroboratory pieces of evidence i.e. recovery of syringe as well as canister from the place of occurrence gave added vigor to the case of prosecution---Recovery of pipe of gas cylinder and partly burnt clothes of the complainant as well as of both the accused persons also supported case of the prosecution and might well be considered as effective corroboratory pieces of evidence---Besides, prosecution had also examined a Constable in support of the recoveries---Statements of both the witnesses had remained consistent and no material contradiction could be found therein---Circumstances established that prosecution had been able to prove case against both the accused persons beyond a shadow of doubt---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 337-A(i), 337-F(i), 337-L, 336, 336-B & 34---Shajjah-i-khafifah, ghayr-jaifah-mudihah, hurt, Itlaf-i-salahiyyat-i-udw, hurt by corrosive substance (acid), common intention---Appreciation of evidence---Sole eye-witness---Accused sprayed acid on the face of complainant with a syringe, while other accused had thrown on her acid present in a jerry can, as a result of which she had received severe burns on her face and rest of her body---Case of prosecution was no doubt a case of single eye-witness but evidence had to be weighed and not counted---Statement of the single eye-witness had remained fully consistent with all the material particulars of the case---Same had sufficiently been corroborated by report of her medical examination as well as other corroboratory evidence---In such circumstances, a single eye-witness was sufficient for conviction of the accused persons---Circumstances established that prosecution had been able to prove case against both the accused persons beyond a shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Muhammad Mansha v. The State 2001 SCMR 199; Farooq Khan v. The State 2008 SCMR 917; Niaz-ud-Din and another v. The State 2011 SCMR 725; Shamshad Ali v. The State 2011 SCMR 1394 and Saleem Zada and others v. The State and others 2019 SCMR 1309 rel.

Masood-ur-Rehman for Appellants (in Criminal Appeal

No. 21-M of 2017).

Haq Nawaz, Assistant A.G. for the State (in Criminal Appeal No. 21-M and Criminal Revision No. 7-M of 2017).

Aziz-ur-Rahman Swati for the Complainant (in Criminal Appeal No. 21-M of 2017).

Aziz-ur-Rehman Swati for Petitioner (in Criminal Revision

No. 7-M of 2017).

Masood-ur-Rahman for the Complainant (in Criminal Revision No. 7-M of 2017).

2023 M L D 1079

[Peshawar]

Before Lal Jan Khattak and Shahid Khan, JJ

ZAHID KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 156-P of 2022, decided on 28th July, 2022.

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

----S. 7---Penal Code (XLV of 1860), Ss. 387, 506, 419, 420 & 34---Telegraph Act (XIII of 1885), S. 25---Foreigners Act (XXXI of 1946), S. 14---Act of terrorism, putting person in fear of death or of grievous hurt in order to commit extortion, criminal intimidation, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for valuable security, common intention, penalty for causing annoyance, illegal entering into Pakistan---Appreciation of evidence---Benefit of doubt---Accused were charged for making threatening calls to complainant for demand of extortion money (Bhatta)---Record prima facie falsified the allegation of the complainant pertaining to the threat calls for the simple reason that only a single call from the alleged cell number of the accused to the cell number of the complainant was found in the record---During the investigation not an iota of evidence had been collected which could prima facie speak of the fact that the subject SIM was in the name of the accused---Not only the complainant but even the supporting witness had categorically highlighted in their respective statements that the calls in question were for contribution of funds for the welfare of the unattended segment of the society, orphans widows, etc.---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 7---Penal Code (XLV of 1860), Ss. 387, 506, 419, 420 & 34---Telegraph Act (XIII of 1885), S. 25---Foreigners Act (XXXI of 1946), S. 14---Act of terrorism, putting person in fear of death or of grievous hurt in order to commit extortion, criminal intimidation, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for valuable security, common intention, penalty for causing annoyance, illegal entering into Pakistan---Appreciation of evidence---Benefit of doubt---Delay of eight days in lodging FIR---Effect---Accused were charged for making threatening calls to complainant for demand of extortion money (Bhatta)---Record of call data so furnished only spoke of the cellular connectivity of the accused and complainant only on 30.03.2021, whereas, the event had been reported to the local police on 08.04.2021 followed by registration of the case vide FIR---On record, no plausible excuse or explanation regarding such delay of almost eight (08) days was found despite the fact that the accused was allegedly conscious enough that the subject threatening calls for "Bhatta" were received more than a week ago---In such circumstances there was a wider scope of consultation and deliberation on part of complainant---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Benefit of doubt---Principle---Slightest doubt occurring in the prosecution case will be sufficient to grant acquittal to an accused.

Muhammad Akram v. State 2009 SCMR 230; Khalid Mahmood v. State 2011 SCMR 664; Tahir Khan v. State 2011 SCMR 646; Nazim Khan v. State 1984 PLD SC 433 and Farman Ahmad v. Muhammad Inayat 2007 SCMR 1825 rel.

Malik Khuram Shehzad for Appellant.

Niaz Muhammad, A.A.G. for the State.

2023 M L D 1108

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

MUHAMMAD SADIQ and others---Petitioners

Versus

FAZAL KHALIQ and others---Respondents

Q.P. No. 94-M of 2021, decided on 14th November, 2022.

(a) Administration of justice---

----Practice and procedure--- Wrong section, mention of---Effect---Piths and substances of an application are to be considered--- Mere wrong section of law or title of application have no bearing on merits of the case.

Olas Khan and others v. Chairman NAB through Chairman and others PLD 2018 SC 40 and Mst. Safia Bibi v. Mst. Aisha Bibi 1982 SCMR 494 rel.

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

----S. 145---Possession, restoration of---Procedure---Mediator, appointment of--- Dispute between the parties was with regard to use of water from natural water spring for the purposes of irrigation of agricultural land---Trial Court and Lower Appellate Court referred the matter to mediators to submit their award---Validity---Powers of Magistrate were not curtailed to pass final order under S. 145(5), Cr.P.C., after holding inquiry in case of failure to pass preliminary order under S. 145(4), Cr.P.C. within two months---Only restriction imposed was that the party to whom possession was restored must have been dispossessed within two months of the complaint---Magistrate while conducting inquiry was not competent to decide either title of property or its right to possession---Magistrate was only empowered to make inquiry under S. 145, Cr.P.C., to regulate possession of property in dispute for the time being to avert apprehension of breach of peace---High Court set aside orders passed by two Courts below and remanded the matter to Trial Court for decision afresh---Constitutional petition was allowed accordingly.

Mukhtiar Ahmad and others v. Haji Muhammad Saleem and another 2013 SCMR 357 rel.

Barrister Dr. Adnan Khan, Advocate Supreme Court for Petitioners.

Atta Ullah Khan and Sohail Sultan, Assistant A.G. for Respondents.

2023 M L D 1128

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

SHER BAHADAR---Petitioner

Versus

The STATE and another---Respondents

B.A. No. 733-M of 2022, decided on 18th October, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 161---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Bail, grant of---Delay in recording statements---Contradiction in ocular and medical evidence---Old age of accused---Further inquiry---Accused along with others, allegedly killed the complainant's father due to a previous blood feud---Complainant did not witness the occurrence---Statements of witnesses were recorded on the second day after the occurrence---Prosecution claimed recovery of eight 7.62 bore empties at the crime scene, but this was contradicted by the post-mortem examination of the deceased---Medical officer's report revealed wounds on the left eyebrow and occipital region, as well as a wound with irregular margins beneath the skull bone, but no firearm injury was found on the skull or clothing---Investigating officer obtained a second opinion from the doctor regarding the weapon used, but the specific object used was not clear---It could not be definitively concluded that the deceased died from a firearm injury, thus the case of accused required further inquiry---Trial was ready to commence and the accused's further custody would not serve any purpose to the prosecution---Accused was 72 years old, making him eligible for bail---Bail application was granted, in circumstances.

Syed Abdul Baqi Shah v. The State 1997 SCMR 32; Saeed Khan v. The State 2011 SCMR 1392; Ehsan Akbar v. The State and 2 others 2007 SCMR 482; Muhammad Ijaz v. The State and others 2022 SCMR 1271; Resham Khan and another v. The State and another 2021 SCMR 2011 and Ali Raza v. The State and others 2022 SCMR 1245 rel.

Alla-ud-Din for Petitioner.

Saeed Ahmad, Assistant A.G. for the State.

Nemo for the Complainant.

2023 M L D 1145

[Peshawar (Abbottabad Bench)]

Before Fazal Subhan, J

CHIEF OFFICER MUNICIPAL COMMITTEE KHALABAT TOWNSHIP, HARIPUR and another---Appellants

Versus

Malik ABDUL RAHEEM---Respondent

Criminal Appeal No. 8-A of 2022, decided on 6th February, 2023.

Khyber Pakhtunkhwa Consumers Protection Act (VI of 1997)---

----Ss. 2(g), (n), 16, 17 & Preamble--- Khyber Pakhtunkhwa Environmental Protection Act (XXXVIII of 2014), S. 22---Consumer protection---Service---Scope---Environment protection---Appellants were employees of Municipal Committee and complainant sought relocation of dumping zone for garbage of the city---Appellants were aggrieved of conviction awarded by Trial Court for violating directions issued to them---Validity---To encourage fair trade practices and to protect legitimate interests of consumers, Khyber Pakhtunkhwa Consumer Protection Act, 1997, was promulgated---Consumer is the person who buys goods for consideration or hires services---To attract provision of Khyber Pakhtunkhwa Consumer Protection Act, 1997, complainant had to prove that he was a consumer by way of purchase of goods or hired services of a service providers for consideration---Respondent/ complainant neither purchased any goods nor hired services of appellants, rather they were aggrieved from the actions/acts of appellants for establishing a dumping site for waste material, creating hazard and nuisance to nearby population---Grievance of respondent/complainant was not in respect of goods for services in view of S. 2(g) & (n) of Khyber Pakhtunkhwa Consumer Protection Act, 1997---Matter fell within the jurisdiction of Tribunal established under Khyber Pakhtunkhwa Environmental Protection Act, 2014---High Court set aside conviction and sentence awarded to appellants and remanded the matter to Trial Court to return the complaint for presenting it before competent forum---Appeal was allowed accordingly.

Haq Nawaz for Appellants.

Respondent in person.

2023 M L D 1163

[Peshawar]

Before Shahid Khan, J

RIZWAN ULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 561-P of 2022, decided on 19th August, 2022.

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

----Ss. 24 & 33---Undercover and controlled delivery operations, procedure for making confiscation---Scope---Appellant assailed order passed by Trial Court only to the extent of confiscation of vehicle from which narcotic was recovered---Accused was acquitted of the charge on an application under S. 265-K, Cr.P.C., however, the vehicle along with contraband was ordered to be confiscated in favour of the State---Notice under S. 33 of Control of Narcotic Substances Act, 1997 ('Act') was mandatory to the claimant of the vehicle used in the commission of offence but in the present case neither at the earliest stage, pre-investigation and investigation, the appellant had ever floated his claim regarding ownership of the vehicle in question before the quarter concerned---Likewise, no claim in that regard had been furnished during the trial before the Court of competent jurisdiction---Subsection (2) of S. 32 of the Act speaks loud and clear of the confiscation of the vehicle used in the commission of offence; if it is proved that its ostensible owner is well in knowledge, directly or indirectly, of the bid pertaining to the transportation and smuggling of narcotics confiscation of the vehicle is permitted---Conscious knowledge of the owner regarding the use of the subject vehicle in the commission of offence was pre-requisite---Alleged bona-fide owner of the vehicle had to be put on notice followed by giving a fair chance of audience to him---Admittedly, no notice as envisaged under the Act was given to appellant by the Trial Court thus the order of confiscation of the vehicle was to be struck down on that sole ground---Moreover, Trial Court was bound to look for the mens rea on the part of appellant or any contribution made by him---Record was silent as to whether any query or probe was made by raiding party or Investigation Officer to trace out that appellant had any knowledge of transporting the narcotics---Provisions of Ss. 32 & 33 of the Act were beneficial enactments to safeguard the right of am innocent owner---To penalize a person in absence of mens rea would be unjust and confiscation of the vehicle would be harsh---Appeal was allowed by setting aside the impugned order to the extent of confiscation of the vehicle in question and case was remanded to the Trial Court with the direction to proceed with the claim of the appellant regarding the bona fide ownership of the vehicle in question.

Muhammad Amin v. The State PLD 2004 Kar. 482 rel.

Abdul Rauf Afridi for Appellant.

Mujahid Ali Khan, A.A.G. for the State.

2023 M L D 1237

[Peshawar (Bannu Bench)]

Before Shahid Khan, J

RIFFAT ULLAH---Petitioner

Versus

Mst. HADIA MUSTAFA and 2 others---Respondents

Writ Petition No. 425-B of 2022, decided on 20th March, 2023.

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

----S. 5, Sched.---Suit for dissolution of marriage and recovery of dower---Dower, quantum of Wife claimed that seven tolas of gold ornaments as dower was fixed between the spouses at the time of engagement which though was tendered to her at time of Nikah but the same was recollected from her on arrival at the house of husband/defendant---Held, that the wife/plaintiff, in her cross-examination had admitted that an amount of Rs. 400,000/- as dower was paid to her by the defendant---Neither Nikah Khwan or registered Nikah Nama of the spouses had been produced in the present case, during the trial, so that due inference could be taken in respect of the subject portion of the dower of the plaintiff---Defendant not only corroborated his version while recording his statement as a witness but had exhibited a receipt relating to the terms and conditions of marriage also, conceding fixation of amount as dower---Both the parties had admitted the amount of Rs. 400,000/- having been fixed as dower which was paid to the wife by the defendant at the time of marriage---No illegality or infirmity was found in decree and judgment regarding dower passed by the Appellate Court---Constitution petition was disposed off accordingly.

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

----S. 5, Sched.---Suit for dissolution of marriage---Recovery of dower, past maintenance allowance and medical expenses---Dissolution of marriage---Khulla or cruelty, basis of---Cruelty by husband was asserted by wife---Wife claimed that after four months of marriage she was diagnosed with breast caner but strained relations between the spouses were already persisting and attitude of husband/defendant kept worsening, and he subjected her to mental, physical and psychological torture---Family Court decreed the dissolution of marriage on the basis of cruelty---Appellate Court changed the basis of separation of parties from Khulla into the cruelty and also denied grant of past maintenance allowance---Validity---Record revealed that the defendant had never inquired about health of the petitioner/plaintiff and had not paid, as a token of courtesy a single penny for her maintenance or medical treatment---Both the witnesses produced by the petitioner/plaintiff had duly substantiated her version---Such unbecoming attitude of husband was cruelty as not only physical torture but mental, moral and psychological torture on the part of partner also amounted to cruelty---High Court dissolved the marriage between parties on the basis of cruelty and modified judgment and decree passed by the Appellate Court regarding past/monthly maintenance allowance to the extent that the petitioner/ex-wife was entitled to the same from the date of institution of the suit till her Iddat period---Constitution petition of the wife was allowed, in circumstances.

Amir Ullah Khan Wazir for Petitioner.

Umar Hayat Shah for Respondents.

2023 M L D 1285

[Peshawar]

Before Mohammad Ibrahim Khan and Ijaz Anwar, JJ

FEROZ KHAN SHUJA and others---Petitioners

Versus

PAKISTAN MEDICAL COMMISSION through President, Islamabad and another---Respondents

W.P. No. 4635-P of 2022, decided on 13th December, 2022.

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

----Ss. 8, 40 & Preamble---Constitution of Pakistan, Art. 199---Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct ) Policy and Regulations, 2022---Constitutional jurisdiction of High Court---Scope---Admission criteria for medical colleges---Medical and Dental Colleges Admission Tests (MDCAT)---Policy affairs---Calculation for admission criteria was notified as 50% percentage/ weightage in MDCAT, 40% F.Sc. or equivalent and 10% Matriculation or equivalent---Petitioners being students moved two different constitutional petitions for and against admission criteria---Contention was that, for merit calculation, actual marks/percentage obtained in only elective/science subjects in F.Sc. or equivalent be considered by the respondent(Pakistan Medical Commission) for admission in Medical and Dental colleges for the session 2022-23---Held, that it was in fact a policy formulated by the Pakistan Medical Commission which was expert in academia as well as medical field---Thus, forming another opinion allegedly on the ground that it was a hardship case for the students or that the suggested criteria be implemented for such admission apparently seemed beyond the domain of the High Court---Jurisdiction of the High Court under Art. 199 of the Constitution was not to be exercised in order to interfere in the policy making domain of the universities/institutions or even the Executive unless it was demonstrated that there was any violation of law or rules or regulations in the matter---Constitutional petitions, being not maintainable, were dismissed, in circumstances.

Syed Azam Shah v. Federation of Pakistan 2022 SCMR 201; Abdul Hameed and others v. Water and Power Development Authority 2021 SCMR 1230; Shahid Pervaiz v. Ejaz Ahmad 2017 SCMR 206; Watan Party and another v. Federation of Pakistan and others PLD 2013 SC 167; Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 646; Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 and Dr. Akhtar Hassan Khan v. Federation of Pakistan 2012 SCMR 455 ref.

Ms. Humaira Gul for Petitioners.

Sardar Sad Ali for Respondents.

2023 M L D 1317

[Peshawar (Abbottabad Bench)]

Before Fazal Subhan, J

Mst. JAMEELA KHURSHEED and others---Petitioners

Versus

MUHAMMAD SADDIQ and others---Respondents

Writ Petition No. 1007-A of 2018, decided on 9th January, 2023.

(a) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 135---Constitution of Pakistan, Art. 199---Partition proceedings before Revenue Officer---Prejudice was alleged by the petitioners against a Revenue Officer at appellate forum who had already adjudicated the matter as a subordinate Revenue Officer---Validity---Record revealed that on previous occasions, the said Revenue Officer had allowed every petition/appeal of the petitioners while serving in different capacities---Petitioners, legally, could not raise objection of mala fide or prejudice---No case of interference by the High Court under constitutional jurisdiction was made-out---Constitutional petition was dismissed, in circumstances.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 135---Constitution of Pakistan, Art. 199---Partition proceedings before Revenue Officer--- Factual controversy--- Constitutional jurisdiction of the High Court---Scope---Petitioners/share-holders invoked constitutional jurisdiction of the High Court against carving of Tatima on the basis of report of commission---Held, that determination of possession of parties could only be made through spot inspection---Such controversy could not be determined by invoking constitutional jurisdiction of the High Court---When there are conflicting claims of factual nature pending before the Court of competent jurisdiction, then the factual controversy should be left to such Court for decision---No case for interference through constitutional petition was made out---Constitutional petition was dismissed, in circumstances.

Shafiullah Jan v. Government of Khyber Pakhtunkhwa a through Secretary Small Industrial Estate, KPK Peshawar and 6 others 2018 CLC Note 17; Zafar Abbass and 4 others v. Member Board of Revenue Punjab and 18 others 2021 YLR 912; Muhammad Ayaz v. Superintendent District Jail, Timergara District Lower Dir and 3 others PLD 2018 Pesh. 1; PLD 2015 SC(AJ&K) 7 and 2021 MLD 1106 ref.

Syed Asif Shah for Petitioners.

Aqeel Sarwar for Respondents.

2023 M L D 1384

[Peshawar]

Before Shahid Khan, J

ABDUR RAHIM---Appellant

Versus

The STATE and another---Respondents

Cr. A. No. 283-P of 2022, decided on 17th August, 2022.

Penal Code (XLV of 1860)---

----Ss. 377 & 377-B---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), S. 53---Commission of sodomy with a minor, cases of sexual abuse, child at risk---Appreciation of evidence---Accused was charged for committing rape with the minor daughter of the complainant---Record showed that the Trial Court had appraised the oral evidence furnished by the prosecution, wherein, neither material contradictions nor infirmity were found---Oral evidence found its positive support from the circumstantial evidence as garments of the victim coupled with the medical evidence pointed clearly towards act of sodomy having been committed with the child victim---Circumstances established that the impugned judgment was based on proper appraisal of facts and circumstances coupled with the evidence so recorded, which did not need any interference---Appeal against conviction was dismissed, in circumstances.

Muhammad Ayaz Khan for Appellant.

Syed Asif Jalal, A.A.G. for the State.

Shahab Ali for the Complainant.

2023 M L D 1415

[Peshawar (Abbottabad Bench)]

Before Fazal Subhan, J

MUHAMMAD EJAZ---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Misc. (Bail) No. 600-A of 2022, decided on 13th October, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration Act (XVIII of 1979), S. 22(b)---Prevention of Smuggling of Migrants Act (XXVIII of 2018), Ss. 3 & 6---Penal Code (XLV of 1860), S. 109---Human trafficking---Bail, refusal of---Validity---Complainant (mother of the victim) had directly nominated the accused in her report for alluring her son on the pretext of sending him to foreign country---Mother's victim transferred an amount (Rs. 100,000/-) to the bank account of the accused---Bank account statement of the accused had confirmed the receipt and subsequent withdrawal of said amount by the accused---Whereabouts of the victim were not known, whereas through a viral video, he (victim) was in custody of the person connected with accused---Call Data Record (CDR) showed the contacts of the accused with a female member of the gang---Section 22(b) of Emigration Ordinance, 1979, as well as Ss. 3 & 6 of the Prevention of Smuggling of Migrants Act, 2018, provided punishment of 14 years with fine, so both the offences fell within prohibitory clause of S. 497 of Criminal Procedure Code, 1898---Tentative assessment of record connected the accused with the crime---Accused was not entitled for grant of bail---Petition for grant of bail was dismissed, in circumstances.

Fazlullah Khan for Petitioner.

Syed Shahid Mehboob, Assistant Attorney General with Haseeb Jamil, SI (FIA) for the State.

Bilal Zaman Kiyani for the Complainant.

2023 M L D 1452

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali and Shahid Khan, JJ

SHAFIULLAH---Appellant

Versus

JUNAID KHAN and another---Respondents

Criminal Appeal No. 39-D of 2018, decided on 22nd November, 2022.

(a) Criminal trial---

----Dishonest improvement made by the witness---Scope---When a witness improves his version to strengthen the prosecution case, his improved statement cannot be relied upon as the witness has improved his statement dishonestly, therefore his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such a witness.

Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825 rel.

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

----Ss. 302(b), 404 & 454---Criminal Procedure Code (V of 1898), S. 417(2-A)--- Qatl-i-amd, dishonest misappropriation of property possessed by deceased person at the time of his death, lurking house tress-pass or house breaking in order to commit offence punishable with imprisonment---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Call Data Record, availability of---Accused was charged for committing murder of wife and daughter of the complainant---During investigation, from Call Data Record (CDR) it surfaced that the accused was using mobile phone of the complainant by installing his own SIM in it, therefore, he was arrested---Prosecution had not mentioned any number of mobile phone of the complainant which was allegedly recovered from the accused---Complainant stated in his cross-examination that out of four mobile phones, highlighted by him in his examination-in-chief, one was in use of his son, the other was in the use of his daughter and the remaining two mobile sets were not in use of anyone---Prosecution failed to produce any tangible evidence regarding the ownership of mobile phone, so recovered from the accused---Similarly, the names of the marginal witnesses of the recovery memo in that regard, did not figure in the list of witnesses and likewise they could not have been highlighted in the relevant calendar followed by having not been produced before the Court---Circumstances established that the prosecution failed to prove its case against the accused beyond any shadow of doubt---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 302(b), 404 & 454---Criminal Procedure Code (V of 1898), S. 417(2-A)--- Qatl-i-amd, dishonest misappropriation of property possessed by deceased person at the time of his death, lurking house tress-pass or house breaking in order to commit offence punishable with imprisonment---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Call Data Record---Accused was charged for committing murder of wife and daughter of the complainant---Record showed that the Investigating Officer had taken into possession the Call Data Record of the mobile of the accused---However, it was not clear as to whether the telephone/SIM number was in the name of the accused or otherwise, as the same fact had not been established through record---Thus, just placing mobile data on the record would hardly be of any advantage to the prosecution---Call Data Record so furnished and relied by the prosecution was neither attested nor signed by the competent issuing authority, nor credible witness was either associated during the investigation nor produced before the Court during the trial to substantiate the same, therefore, reliance on the subject Call Data Record in respect of mobile/SIM number of the accused would be unwise and it would be appropriate not to rely upon such evidence---Circumstances established that the prosecution failed to prove its case against the accused beyond any shadow of doubt---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 302(b), 404 & 454---Criminal Procedure Code (V of 1898), S. 417(2-A)--- Qatl-i-amd, dishonest misappropriation of property possessed by deceased person at the time of his death, lurking house tress-pass or house breaking in order to commit offence punishable with imprisonment---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Recovery of weapon of offence on the pointation of accused---Reliance---Accused was charged for committing murder of wife and daughter of the complainant---According to the pointation memo, recovery of weapon of offence i.e. axe was effected on the pointation of the accused from the maize crop in the landed property of another person, who was marginal witness of pointation memo, and stated that during the search process in the fields, accused, duly in handcuffs, was standing near the police mobile---Another marginal witness of pointation memo stated in his examination-in-cross that the axe was recovered from the fields---Said witness further stated that four persons including him, the Investigating Officer and the accused went for the recovery of axe---It was not mentioned as to whether the allegedly recovered axe was bloodstained or otherwise---Similarly, it was also not sent to the Forensic Science Laboratory to substantiate that the same was the weapon of offence and was used in the commission of crime---In absence of report of Forensic Science Laboratory it could not be considered as corroborative piece of evidence against the accused---Thus, the prosecution evidence as to recovery of axe was not sufficient enough to connect the accused with the commission of the offence---Circumstances established that the prosecution failed to prove its case against the accused beyond any shadow of doubt---Appeal against acquittal was dismissed, in circumstances.

(e) Criminal trial---

----Recovery of incriminating material---Scope---Evidence of recoveries of mobile phone, Call Data Record (CDR) and the alleged weapon of offence, being corroboratory in nature, were not capable to bring home charge against the accused in the circumstances where direct evidence was lacking because unless direct or substantive evidence was available conviction could not be recorded on the basis of any other circumstantial evidence, howsoever, convincing it may be.

Saifullah v. The State 1985 SCMR 410 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Even a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused, makes him entitled to its benefit, not as a matter of grace and concession but as a matter of right.

Muhammad Akram v. State 2009 SCMR 230 rel.

(g) Criminal trial---

----Evidence---Interpretation favorable to the accused---If two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be adopted.

Ehsanullah Marwat for Appellant.

Saif-ur-Rahman Khan for Respondent No. 1.

Muhammad Adil Khan for the State.

2023 M L D 1477

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali and Shahid Khan, JJ

MUHAMMAD FAZAL---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 14-D of 2022, decided on 30th January, 2023.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Single accused---Accused was charged for making firing upon son and nephew of the complainant, due to which, the son died whereas the nephew escaped unhurt---Accused was singularly charged for murder of the deceased, but that alone was not sufficient to absolve the prosecution to prove its case on the basis of available evidence---No doubt, the substitution of single accused in a murder charge was a rare phenomenon, but at the same time to put rope around the neck of an accused charged singularly, there must be ocular account of unimpeachable character, trustworthy and confidence inspiring, corroborated by circumstantial evidence---Circumstances established that the prosecution had succeeded in bringing home charges against the accused through confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

Arshad Beg v. The State 2017 SCMR 1727 rel.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Matter reported to police with promptitude---Accused was charged for making firing upon son and nephew of the complainant, due to which, the son died whereas the nephew escaped unhurt---Occurrence in the present case occurred at about 06.50 a.m., whereas the matter was reported with a remarkable promptitude, followed by postmortem examination, excluding possibility of deliberation and consultation---Circumstances established that the prosecution had succeeded in bringing home charges against the accused through confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for making firing upon son and nephew of the complainant, due to which, the son died whereas the nephew escaped unhurt---Ocular account of the incident had been furnished by the complainant and his nephew---Complainant was step-father, while his nephew was brother-in-law of the deceased---However, testimony of a witness which was trustworthy and confidence inspiring could not be discarded merely on the basis of close relationship---No material contradictions were found between the two, which also found support from the medical evidence and site plan---Despite facing taxing cross-examination, both the witnesses remained consistent in their depositions on material aspects of the case---Testimony of said witnesses was further corroborated by the testimony of a shopkeeper, who was an independent witness---Said witness was examined before the Trial Court and his natural deposition fully established presence of the eye-witnesses on the spot at the time of incident---Ocular account was further supported by Emergency Officer, Rescue 1122, who testified the venue of lifting the dead body by mentioning the time as 7:00 a.m., which further strengthened the prosecution story---Circumstances established that the prosecution had succeeded in bringing home charges against the accused through confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

Ghulam Murtaza v. The State 2021 SCMR 149 and Aurangzeb v. The State 2020 SCMR 612 rel.

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

----S. 154--- First Information Report--- Scope--- First Information Report is not encyclopedia of all details, it is meant to set the law in motion with regard to a cognizable offence.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Recovery of incriminating material---Reliance---Accused was charged for making firing upon son and nephew of the complainant, due to which, the son died whereas the nephew escaped unhurt---Investigating Officer, during the spot inspection recovered blood-stained earth from the place of the deceased and also collected two empties of .30 bore pistol from the spot---Said witness also recovered a motorbike related to the deceased during the spot inspection---Accused was arrested by the said witness and .30 bore pistol having fit magazine containing three live rounds of the same bore was also recovered from personal possession of the accused---Although, it was vehemently argued that there was no entry in the daily diary register regarding arrival and departure of the Investigating Officer with respect to said recovery, however, same would not benefit the accused for the reason that the ocular account furnished by the eye-witnesses had been believed in the present case---Positive report of Forensic Science Laboratory regarding the empties and pistol further supported the prosecution case---Circumstances established that the prosecution had succeeded in bringing home charges against the accused through confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Motive proved---Accused was charged for making firing upon son and nephew of the complainant, due to which, the son died whereas the nephew escaped unhurt---Motive in the present case was stated to be the accused compelling the deceased for friendship---However, no evidence was brought in that respect, which remained a mystery and it probably had a bearing on the quantum of sentence, otherwise, the prosecution fully proved its case for sustaining conviction of the accused---Even, during statement of the accused under S. 342, Cr.P.C., specific question with regard to motive alleged by the prosecution was put to the accused, which was denied by him---Circumstances established that the prosecution had succeeded in bringing home charges against the accused through confidence inspiring evidence---Appeal against conviction was dismissed accordingly.

Muhammad Yousaf Khan for Appellant.

Adnan Ali, Assistant A.G. for the State.

Ghulam Muhammad Sappal for Respondent.

2023 M L D 1502

[Peshawar]

Before Ijaz Anwar, J

MUHAMMAD HAYAT and others---Petitioners

Versus

MUHAMMAD ZAMAN and others---Respondents

C.R. No. 523-P of 2014, decided on 17th April, 2023.

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

----Ss. 58(d) & 60---Limitation Act (IX of 1908), S. 20 & Art.148---Suit for redemption---Limitation---Usufractuary mortgage---Scope---Cause of action---Scope---Suit instituted by the petitioners/plaintiffs for the redemption of property mortgaged more than a century ago was dismissed by the Civil Court on the ground of limitation as the same was not filed within sixty years of mortgage---Appellate Court maintained the decree and judgment passed by the Trial Court---Validity---Record revealed that the predecessor of the petitioners/ plaintiffs had mortgaged the suit-property through mutation in the year 1895 in favour of the predecessor of the respondents/defendants---Suit-property was in possession of the respondents /defendants through inheritance, however, the revenue record had confirmed the ownership of the petitioners/plaintiffs while the respondents/defendants were recorded as mortgagee in the column of cultivation throughout---Suit of petitioners/plaintiffs had been concurrently dismissed on the ground that the same was instituted after about 111 years and thus, was hopelessly barred by time in view of S. 148 of the Limitation Act which provided sixty years for institution of redemption suit---Respondents/ defendants were enjoying the possession of the suit-property since inception of the mortgage and such mortgage, legally speaking, was usufractuary mortgage in terms of clause (d) of the S. 58 of the Transfer of Property Act, 1882---Section 60 of the Transfer of Property Act, 1882 provided right of mortgagor to redeem the mortgaged property, however, S. 20 of the Limitation Act, 1908 stipulated that the receipt of produce during the subsistence of mortgage gave a fresh cause of action to the mortgagor on the receipt of produce of every harvest and the same was deemed acknowledgment---High Court observed that the claim of the petitioners/plaintiffs for redemption was well maintainable, as they (petitioners/plaintiffs )were owners of the suit property while the respondents/ defendants were in possession of the same as mortgagee---High Court set aside decrees and judgments passed by both the Courts below; passed a preliminary decree in favour of the petitioners/plaintiffs and against the respondents/defendants for redemption of mortgaged property---Civil revision was allowed, in circumstances.

Abdul Haq's case 1999 SCMR 2531; 2002 CLC 1553; Bilawar Khan v. Amir Sabar Rahman and others PLD 2013 Pesh. 38; Maqbool Ahmad's case 1999 SCMR 2063; Farid Khan v. Fazla Qadir and others PLD 2019 Pesh. 171; Amal Khan and others v. Gul Zaman 2013 YLR 2738; Durranai and others v. Hamidullah Khan and others 2007 SCMR 480 and Ahmad Khan and others v. Abdur Rehman and others 2009 SCMR 191 ref.

Tanveer Minhas for Petitioners.

Niaz Wali Khan for Respondents.

2023 M L D 1541

[Peshawar (Mingora Bench)]

Before Dr. Khurshid Iqbal, J

NAZIR AHMAD and 10 others---Petitioners

Versus

HASANULLAH and 17 others---Respondents

C.R. No. 19-C of 2022, decided on 20th March, 2023.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 1 & O. VI, R. 17---Withdrawal of the suit with permission to bring a fresh one---Formal defect---Scope---Amendment in the plaint---Scope---Whether the non-mentioning of certain other portions of the property in the legacy of the predecessor and non-arraying of necessary parties to the suit would amount to formal defect--- Civil Court accepted the application of the respondents/plaintiffs for withdrawal of their suit with permission to file a fresh one---Validity---Order XIII, Rule 1(2) of the Civil Procedure Code, 1908 ('the C.P.C., 1908') warranted withdrawal of the suit with permission to bring a fresh one on the basis that there must be a formal defect in the suit---Phrase "formal defect" had not be defined in the C.P.C., 1908---"Formal defect" was one which would affect the roots of a case, which if remains intact would be bound to cause failure of the suit---So-called defects, in the present case, could have been rectified through amendments in the plaint under O. VII, R. 17 of the C.P.C., 1908---An amendment could be sought when it was necessary to determine the real matter in controversy---Such amendment could be allowed if the same caused no prejudice to the other party and did not introduce a new cause of action to alter the nature of the suit and where it is just and necessary---There was no formal defect in the present case, rather the defects were worth rectifying by means of amendment---Both the Courts below had not exercised the jurisdiction vested in them by allowing withdrawal with permission to bring a fresh suit---High Court set aside orders and judgments passed by both the Courts below with the direction that the suit stood revived before the Trial Court, and amendment may be sought by the respondents/plaintiffs to the extent of mentioning certain other portions of the property in the legacy of predecessor and arraying necessary parties---Civil revision was disposed off accordingly.

Muhammad Yousaf and others v. Nazeer Ahmad Khan (deceased) through LRs and others 2021 SCMR 1775; Muhammad Boota v. Member (Revenue), Board of Revenue PLD 2003 SC 979; Muhammad Kazim Ziauddin Durrani v. Muhammad Asim Fakharuddin Durrani 2001 SCMR 148; Amjad Rashid Khan Malik v. Shahida Naeem Malik 1992 SCMR 485; Ali Muhammad v. Rahmatullah 1990 SCMR 913 and Dilbar Khan v. Said Akbar 1996 CLC 1178 ref.

Ikram Hussain and Mujahid Farooq for Petitioners.

Fazal Maula for Respondents.

2023 M L D 1785

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

MUHAMMAD SIDDIQUE and others---Petitioners

Versus

MUHAMMAD SAEED and others---Respondents

C.R. No. 95-M of 2018 with C.Ms. Nos. 389-M and 1551-M of 2022 along with Obj. No. 9, decided on 7th November, 2022.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Benami transaction---Scope---Plaintiff sought an injunction restraining the defendants (plaintiff's brothers) from interfering in his property---Case of defendants was that the suit property was in fact purchased by their father and that the name of plaintiff appeared in the sale deed as Benamidar---Trial Court and Appellate Court concurrently decreed the suit---Validity---Plaintiff had established that he had paid the sale consideration whereas the defendants' evidence was based on hearsay---Defendants had not even alleged any motive what to speak of proving the same that what consideration prompted their common predecessor to purchase the property in the name of the plaintiff---Plaintiff had prima facie proved that he was in possession of the suit property---Financial position of the plaintiff had not been challenged by the defendants---Two courts below had concurrently recorded their findings of facts and law as against the defendants and in favour of the plaintiff, which High Court found as perfectly in accordance with available evidence of the parties---Revision petition was dismissed.

Mst. Asia Bibi v. Dr. Asif Ali Khan and others PLD 2011 SC 829; Syed Khursheed Ahmad Shah v. The State PLD 2022 SC 261; Mst. Attia Bano and v. Abdul Majeed 2020 SCMR 1396; Nasir Ali v. Muhammad Asghar 2022 SCMR 1054; Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353; Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13; Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21; Shahbaz Gul and others v. Muhammad Younas Khan and others 2020 SCMR 867 and Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2022 SCMR 933 rel.

(b) Administration of justice---

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

Abdul Rehman and others v. Mst. Allah Wasai and others 2022 SCMR 399 rel.

Fayaz Muhammad Qazi for Petitioners.

Aurangzeb for Respondents.

2023 M L D 1825

[Peshawar (Mingora Bench)]

Before Dr. Khurshid Iqbal, J

NOOR DIN---Petitioner

Versus

KANAY---Respondent

C.R. No. 103-M of 2014, decided on 16th February, 2023.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 19 & 24---Suit for pre-emption---Partial pre-emption---Scope---Deficiency in deposit of one-third sale-price---Effect---Petitioner/ plaintiff instituted suit against one vendee only in respect of said vendee's alleged relevant Khasra number alone---Trial Court dismissed suit of petitioner/plaintiff, which judgment and decree were maintained by Appellate Court---Validity---Record revealed that the impugned sale-mutation, the land-in-dispute was not only sold out to two persons (i.e. the respondent/defendant and another), but the same (land) consisted of two Khasra numbers including the one disputed by the petitioner---Thus, the petitioner brought the suit for partial pre-emption against only one vendee (respondent/defendant) in respect of the share sold out in disputed Khasra number ---When the suit was filed, instead of sale-mutation, fard Jamabandi was attached with the plaint , which was in respect of one (disputed) Khasra number only---Trial Court while considering the fard Jamabandi directed the petitioner to deposit an amount ( as Zar-e-Shufa) which was one third of the price he himself had mentioned in the plaint---Said sale price, having been mentioned by the petitioner , was too less and even less than the amount appearing in the relevant Fard Jamabandi in respect of suit-property; and also mush less than the sale consideration mentioned in the relevant mutation---Appellate Court had taken notice of said fact whereas the petitioner himself did not come up to the Court for the said deficiency---Petitioner brought the suit against one vendee only, which was hit by partial pre-emption being one of the vendees in respect of one Khasra number---No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below---Revision petition was dismissed, in circumstances.

Wahid Bakhsh v. Abdul Qayum and another 1997 MLD 2945; Muhammad Iqbal v. Jahanzeb Khan 1999 MLD 2475; Mst. Mah Jehan v. Abdul Maroof 2000 MLD 814; Asfandyar Khan v. Ghazanfar Ali and 5 others 2011 MLD 466; Wali Khan v. Waheed Ghani Khan 2013 MLD 360 and Sajjad-ur-Rehman v. Safiullah and another 2017 CLC Note 47 ref.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 19---Suit for pre-emption---Talb-i-Ishhad, fulfilment of---Scope---Trial Court dismissed the suit of the petitioner/plaintiff, which judgment and decree was maintained by the Appellate Court---Validity---Petitioner examined the Registry Clerk, who furnished evidence of having issued the registered letters purportedly containing the notice; he did not mention that the Acknowledgment Due (A.D) Cards also accompanied the registered post---No evidence was produced to prove that the notice was delivered---Other factual evidence relating to writing of notice Talb-i-Ishhad, its signing/thumb-impression by the marginal witnesses and its delivery to the respondent were materially contradictory---No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below---Revision petition was dismissed, in circumstances.

Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762 and Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 ref.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 19--- Suit for pre-emption---Pursuing case through Attorney---Scope and effect--- Trial Court dismissed the suit of the petitioner/plaintiff, which judgment and decree was maintained by the Appellate Court---Validity---Petitioner did not appear in person in the witness-box and all the proceedings, including preparation of alleged notice Talb-i-Ishhad, were conducted through his attorney---Therefore, his statement regarding performance of Talbs was based on hearsay knowledge---Revision petition was dismissed, in circumstances.

Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957 ref.

(d) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 19---Suit for pre-emption---Talb-i-Muwathibat, fulfillment of---Scope---Petitioner/plaintiff contended that someone via cellular phone informed him about the pre-empted sale and he, all of sudden, expressed his right of pre-emption over the same---Validity---Petitioner did not appear in person in the witness-box and all the proceedings were conducted through his attorney---Thus, the petitioner did not come to the witness-box to prove his contention that two witnesses were present in the sitting on the eventful night while he, after having come to know about the impugned sale through telephonic conversation, fulfilled Talb-i-Muwathibat---Statements of informer and alleged witnesses were fully inconsistent with the stance of the petitioner regarding the performance of Talb-i-Muwathibat, thus the petitioner failed to prove the same through trustworthy and reliable evidence---No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below---Revision petition was dismissed, in circumstances.

Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957 ref.

Sajjad Anwar Khan for Petitioner.

Abdul Halim Khan for Respondent.

2023 M L D 1870

[Peshawar (Mingora Bench)]

Before Dr. Khurshid Iqbal, J

NISAR---Petitioner

Versus

SAID QAMAR (LATE) through LRs and others---Respondents

Writ Petition No. 1483-M with C.M. No. 2583 of 2022, decided on 13th January, 2023.

Civil Procedure Code (V of 1908)---

----O. IX, R. 13--- Limitation Act (IX of 1908), First Sched. & Art. 164---Ex-parte judgment and decree---Application for setting aside ex-parte judgment and decree, dismissal of---Scope---Petitioner contested the concurrent dismissal of his application to set aside the ex parte judgment and decree---Held, that petitioner had been properly served in the suit and he had appeared before the Trial Court---However, the petitioner failed to provide sufficient cause for his non-appearance---Petitioner claimed that he had tested positive for COVID-19 a few days before the scheduled hearing, but did not provide any supporting documentation regarding his illness---Although the typical duration of COVID-19 was approximately one month, the petitioner filed his application to set aside the ex parte decree four months after its passing---Additionally, the petitioner did not submit an application for condonation of delay---According to Art. 164 of the Limitation Act, 1908, the limitation to file an application to set aside the ex parte decree was thirty days---Writ petition was dismissed.

Managers Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Sher Wali Khan v. Mst. Khosh Begum 2011 CLC 421 and Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan PLD 1981 SC 21 rel.

Noor Ishaq for Petitioner.

Nemo for Respondents (being in motion).

2023 M L D 1920

[Peshawar (Mingora Bench)]

Before Dr. Khurshid Iqbal, J

LAL ZAMAN---Appellant

Versus

FARHAD ALI---Respondent

R.F.A. No. 101-M of 2018, decided on 14th February, 2023.

Malicious prosecution---

----Suit for damages---Pre-requisites for malicious prosecution case---Appellant assailed the dismissal of his suit for malicious prosecution---Appellant was prosecuted by the respondent---Prosecution had ended in favour of appellant but his liberty was interfered with as he was arrested in the criminal case---However, the remaining three ingredients - the respondent having acted without reasonable and probable cause; respondent being actuated by malice and the appellant having suffered damage-were not proved---Ingredients of malicious prosecution were not proved by the appellant---Appeal was dismissed.

Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Subedar (Retd.) Fazle Rahim v. Rab Nawaz 1999 SCMR 700; Rafique Ahmad Khan v. Province of Punjab through Secretary, Education and others 2004 SCMR 1065; Ali Mardan v. Allah Bakhsh 2005 YLR 3172; Ghulam Ali v. Ranjho Khan 2007 MLD 1657; Abdul Khameed v. Muhammad Shabbir and another PLD 2021 Isl. 405 and Muhammad Yousaf v. Abdul Qayum PLD 2016 SC 478 rel.

Abdul Wadood and others v. Muhammad lqbal and another 2013 MLD 584; Hussain Gul v. Soorat Shah and others 2014 MLD 1008 and Mehrban v. Ghulam Hassan 2016 CLC 1585 ref.

Umar Farooq (Papa) for Appellant.

Muhammad Riaz for Respondent.

2023 M L D 1935

[Peshawar]

Before Mohammad Ibrahim Khan, J

RAHAT GUL and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal M. B.A. No. 4283-P of 2023, decided on 10th January, 2023.

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

----S. 497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 9(d) & 11(d)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Possession of narcotics, unlicensed possession of arms---Bail, refusal of---Accused persons were alleged to have been found in possession of narcotics and unlicensed weapon---Baitak in question was in the ownership of the accused and huge quantity of narcotics was recovered from the same in his presence as well as presence of marginal witnesses; who in their statements under S. 161, Cr.P.C., had affirmed the version of prosecution qua recovery of narcotics from his baitak---Report of Forensic Laboratory also affirmed the version of prosecution, according to which the recovered contrabands were heroin and methamphetamine---Sufficient material was available on record which prima facie connected the accused with the commission of a heinous offence, falling under the prohibitory clause of S. 497, Cr.P.C.---Bail petition to the extent of accused was dismissed, in circumstances.

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

----S. 497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 9(d) & 11(d)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Possession of narcotics---Unlicensed possession of arms---Bail, grant of---Accused persons were alleged to have been found in possession of narcotics and unlicensed weapon---Neither the Baitak from which the alleged contraband was recovered, was in the ownership of accused nor the alleged contraband---Except pistol .30 bore and rounds nothing was recovered from his immediate possession---Rather the Baitak was in the ownership of main accused, which made the case of accused that of further inquiry---Recovery of weapon did not make the case one of refusal of bail---Bail petition to the extent of accused was allowed and he was admitted to bail, in circumstances.

Alam Sher Khan Afridi for Petitioners.

Muhammad Sohail, A.A.G. for the State.

2023 M L D 2003

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar and Dr. Khurshid Iqbal, JJ

AMJAD ALI and others---Petitioners

Versus

SECRETARY PUBLIC HEALTH ENGINEERING, KHYBER PAKHTUNKHWA and others---Respondents

Review Petition No. 2-M/2022 in W.P 1283/2020, Review Petition No. 3-M/2022 in W.P 1283/2020, Review Petition No. 4-M/2022 in W.P 1282/2020, Review Petition No. 5-M/2022 in W.P 1279/2020, Review Petition No. 6-M/2022 in W.P 1277/2020, Review Petition No. 7-M/2022 in W.P 1276/2020, Review Petition No. 8-M/2022 in W.P 1285/2020 and Review Petition No. 9-M/2022 in W.P 1284/2020, decided on 8th February, 2023.

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

----S. 114 & O. XLVII, R. 1--- Review--- Grounds--- Judicial pronouncement, review of---Earlier constitutional petitions were filed by the petitioners regarding regularization of their service---Said petitions were allowed subject to certain condition/limitation i.e. they shall not however claim arrears of salaries or other back benefits for the service they had rendered on contract basis before regularization---High Court, while concluding the said order, emphasized the words incorporated in last portion of the judgment (regarding condition/ limitation) by underlining the same---Later, the petitioners again moved application before the High Court and prayed for deletion of the underlined words contending that the said underlined words were liable to be corrected being a result of accidental slip or omission---High Court, however, directed that the application be converted into review petitions---Validity---Record (judgment-in-question and subsequent notification) showed that the order was actually passed subject to the condition/limitation (for not claiming back-benefits)---Respondents/ authorities had assailed said judgment and order and the Supreme Court had set-aside the same; thus, the very foundation on which the matter-in-hand was allowed no longer existed---No case for review was made out--- Review petitions were dismissed, in circumstances.

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

----S. 114 & O. XLVII, R. 1---Supreme Court Rules 1980, O. XXVI, R. 1---Judgment passed in constitutional petition---Review---Scope---Section 114 & O. XLVII of the Civil Procedure Code, 1908, enunciate three grounds for review: (i) discovery of new facts/materials/evidence; (ii) mistake or error on the face of record, or (iii) for any other sufficient cause---Power of review is expressly conferred by a Statute, whose exercise is subject to only those grounds which the Statute provides and which is exercised in exceptional cases only---Judicial pronouncement is a serious enterprise, which needs not be done away with glibly---Aggrieved person cannot be allowed to raise those grounds which were available to him at the time of hearing of the main case/appeal but he did not press it at that point of time---Review petition can not be equated or treated as hearing the main appeal or revision, as the case may be---It has to be restricted to the newly discovered facts or any illegality/mistake/error which is floating on the face of record.

Somasundaram Chetty v. Chetty, AIR 1926 PC 136; Muhammad Tufail v. Abdul Ghafaor PLD 1958 SC 201; Anwar Ahmed v. Mst. Nafeesa Bono through legal heirs PLD 2009 SC 493; Messrs A.R. Bhuivan & Co. Limited v. Messrs Centrotex Foreign Trading Corporation PLD 1968 Dacca 779 and Syed Wajihul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 901 ref.

Asad Nabi for Petitioners.

Sohail Sultan, Assistant A.G. for Respondents.

2023 M L D 2047

[Peshawar]

Before Lal Jan Khattak and Ishtiaq Ibrahim, JJ

SHAKEEL AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1253-P of 2019, decided on 6th October, 2022.

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

----S. 9(c)---Recovery of narcotics---Appreciation of evidence---Benefit of doubt---Discreditable witness---Prosecution case was that 44 packets, containing 29 packets of chars and 15 packets of opium, were recovered from the secret cavity of the vehicle driven by accused---Complainant/Investigation Officer appeared before the trial Court as witness---From the deposition of said witness, it was abundantly clear that he had been dismissed from service once on the allegations of asking for illegal gratification then again a month or two prior to his examination before the Court he was again arrested in another case by the FIA for receiving illegal gratification---If such was the state of credibility of the prime witness of prosecution on which they expected the Court to impose capital punishment or for that matter life imprisonment, indeed the Court would strive for some strong independent corroboration---In cases of narcotics conviction was based on the testimony of Police Officials and Police Officials were considered to be as good witnesses as any other witness---Reason was that they being member of the respectable law enforcing agencies the Court relied on their testimony and awarded capital punishment to the accused most particularly in cases wherein they had recovered considerable quantity of narcotic which of course was a manic for the society---However when a witness having a dubious record was the main prosecution witness, then how could the prosecution could expect the Court to consider his testimony and award sentence to the accused---When any doubt arise with regard to the credibility of the witnesses then the Court was left with no other choice but to discard such evidence produced by the prosecution---Even then some strong independent corroboration could be looked up but the same was not available in the present case---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Recovery of narcotics---Appreciation of evidence---Benefit of doubt---CCTV footage not available---Prosecution case was that 44 packets, containing 29 packets of chars and 15 packets of opium were recovered from the secret cavity of the vehicle driven by accused---Admittedly, the recovery had been effected near Toll Plaza of a motorway but the CCTV footage had not been taken into possession---Even photographs at the time of arrest were not placed on the file which could have corroborated the testimony of Anti Narcotics Force Officials most particularly the statement of complainant/Investigation Officer---By considering the facts and circumstances of the present case it was incumbent upon the prosecution to have brought some corroborative piece of evidence in addition to the evidence referred above---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Recovery of narcotics---Appreciation of evidence---Benefit of doubt---Non-production of police daily diary---Prosecution case was that 44 packets, containing 29 packets of chars and 15 packets of opium, were recovered from the secret cavity of the vehicle driven by accused---Record showed that the complainant/Investigation Officer in his cross examination stated that they made their departure and arrival back in the Police Station, but extract of daily diary was not available on the record---Complainant/Investigation Officer in his cross examination admitted that he had not placed on file the extract of the said daily diary regarding his departure and arrival back to the Police Station---It was revolving common practice amongst the Investigation Officers that they lacked interest to collect the material evidence in cases and even no heed was paid to collect the daily diaries from the Police Stations regarding the arrival and departure of all concerned with the investigation of a particular case---These documents could correctly explain the status of the witnesses, their presence at the spot, the time they consumed in reaching to the spot and the names of Police Officials who accompanied them---If such documents were brought on record, the Investigation Officer would lose the courage to manipulate the cases in Police Stations---In the present case, when the complainant/Investigation Officer was questioned regarding the arrival and departure from the Police Station to the spot, he blatantly answered that he did not place on record the daily diary in that respect---Such lack of seriousness of the witness stamped him as an interested witness and his testimony could not wholeheartedly be relied upon---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.

Pir Noroz Ali Shah v. The State 2019 PCr.LJ 457 rel.

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

----S. 9(c)---Recovery of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody of recovered narcotic doubtful---Non-production of relevant evidence---Prosecution case was that 44 packets, containing 29 packets of chars and 15 packets of opium, were recovered from the secret cavity of the vehicle driven by accused---There was no extract of Register-19 and Register-21 on the record---Muharrir/witness had stated that on return of the Investigation Officer to the Police Station he handed over to him the case property and that he made its entry in Register-19---In his cross examination said witness admitted that he had not brought Register 19 or Register 21 in support of his contention before the Court---Similarly receipt Rahdari and acknowledgement receipt were also not available on the file---Prosecution did not produce Register No. 19 of the Police Station so as to prove that the case property was ever kept in Malkhana of the Police Station---In that way, the prosecution had wasted the best evidence available with it to establish the safe custody of recovered contraband---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.

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

----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Recovery of narcotics---Appreciation of evidence---Benefit of doubt---Withholding material witness---Marginal witness to recovery memo given up---Prosecution case was that 44 packets, containing 29 packets of chars and 15 packets of opium were recovered from the secret cavity of the vehicle driven by accused---Record showed that one of the witnesses, who was the second marginal witness to the recovery memo, was abandoned by the prosecution for reasons best known to them---So, in such situation, not only adverse inference under Art. 129(g) of Qanun-e-Shahadat Order, 1984 could be safely drawn, but the legal inference could also be drawn that if the said witness had entered into the witness box then he would not have supported the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

PLD 2016 SC 17 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---In case of doubt, the benefit thereof will accrue in favour of the accused as matter of right and not of grace.

Muhammad Jehangir Khan Mohmand for Appellant.

Muhammad Tariq Kakar, Special Prosecutor for the State.

2023 M L D 2136

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmad and Fazal Subhan, JJ

MUHAMMAD TAHIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 365-A of 2019, decided on 5th October, 2022.

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

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Minor as sole eye-witness---Accused was charged for committing murder of maternal uncle of complainant with his wife and three children by firing---Prosecution had examined minor son of the accused aged five years as the sole eye-witness of the occurrence---Soon after the occurrence statement of minor witness was recorded by Judicial Magistrate---Before recording statement of minor witness, his intelligence and capacity of understating were put to test by the Judicial Magistrate and after due satisfaction that the child was giving rational answer, his statement was recorded---Again, during trial statement of said minor witness was recorded, at the age of 12 years and his capability to understand the proceedings were tested where-after, his statement was recorded---Statement of minor witness, on careful analysis, revealed that he described the entire episode with precision---Though certain variations and omissions in between statement of said witness recorded under S. 161, Cr.P.C., and Court statement were highlighted by defence but those could not be described as major contradictions, causing any serious damage to the prosecution case---Defence had made special reference to the cross examination of minor witness wherein he admitted that after separation of his father and mother, he never saw his father except at the time of commission of offence---Said reply of the minor witness could not be taken and evaluated in isolation, rather the entire statement and sequence of narrations of events would be considered conjointly---Said witness had described each and every aspect of the occurrence with consistency and accuracy---Said witness deposed that he did not recognize his father by face---Said fact left no room to nurture any doubt about veracity of said witness---Minor witness had been put to lengthy and scorching cross examination but despite his tender age he stood firm to his stance---Accused was the real father of minor witness and at the time of occurrence he was only five years of age and therefore, it could not be said that he was tutored or his statement was derived through outside influence---In such circumstances when five persons were done to death, then substitution of real culprits with the accused would not appeal to mind---Thus the statement of minor witness was found to be straight forward and confidence inspiring and any minor contradiction was not be sufficient to discard his testimony---Circumstances established that the prosecution had successfully proved its case beyond shadow of doubt against the accused---Appeal against conviction was accordingly dismissed.

2002 SCMR 1247 and Haroon Rasheed and 6 others v. State 2005 SCMR 1568 rel.

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

----Ss. 302(b) & 109--- Qatl-i-amd, abetment---Appreciation of evidence---Recovery of incriminating material from the spot---Reliance---Accused was charged for committing murder of maternal uncle of complainant with his wife and three children by firing---Record showed that garments of the deceased with blood and bullet marks, one magazine loaded with six rounds of .30 bore, twelve empties of .30 bore, three spent bullets, pieces of quilt, and two bulbs were recovered from the wall near the kitchen and from inside the room---All the articles containing blood i.e. garments and pieces of quilts were sent to the Forensic Science Laboratory and report confirmed the same to have human blood---Similarly, post mortem of all the five deceased were conducted which confirmed not only the death through fire arms but the probable duration of 6 to 7 hours between death and post mortem---Thus, all recoveries completely corroborated the prosecution version---Circumstances established that the prosecution had successfully proved its case beyond shadow of doubt against the accused--- Appeal against conviction was accordingly dismissed.

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

----Ss. 302(b) & 109--- Qatl-i-amd, abetment---Appreciation of evidence---Minor contradiction and discrepancies in the statements of witnesses---Inconsequential---Accused was charged for committing murder of maternal uncle of complainant with his wife and three children by firing---Besides, minor witness, prosecution also examined many other witnesses---Though there might be some minor variations and contradictions in their statements but when an incident of such a magnitude occurred, wherein the entire family was massacred, then it was not expected that witnesses would remember each and every fact in a mechanical manner, especially when the witnesses were examined after 8/9 years of the occurrence---Thus, in all, prosecution had convincingly proved that it was the accused who committed the offence---Circumstances established that the prosecution had successfully proved its case beyond shadow of doubt against the accused--- Appeal against conviction was accordingly dismissed.

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

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Recovery of pistol from the possession of accused---Reliance---Accused was charged for committing murder of maternal uncle of complainant with his wife and three children by firing---Record divulged that accused remained fugitive from law for almost six years before he was arrested---At the time of arrest one 30 bore pistol, without number, along with a magazine loaded with five live rounds was recovered---Pistol along with empties recovered from the scene of occurrence were dispatched to the Forensic Science Laboratory and report thereof showed that twelve .30 bore crime empties were fired from .30 bore pistol and result was positive---Thus, said recovery further provided corroboration to the prosecution story---Circumstances established that the prosecution had successfully proved its case beyond shadow of doubt against the accused---Appeal against conviction was accordingly dismissed.

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

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Absconsion of the accused---Accused was charged for committing murder of maternal uncle of complainant with his wife and three children by firing---Record showed that the accused soon after the occurrence absconded---Though accused might have absconded to avoid his arrest due to false implication or fear of police, therefore, abscondence alone was not to be made basis for conviction but when there was sufficient material available on record to connect the accused with the crime then abscondence would be considered a strong corroborative piece of evidence---Circumstances established that the prosecution had successfully proved its case beyond shadow of doubt against the accused---Appeal against conviction was accordingly dismissed.

Qaiser Khan and others v. The State 2009 SCMR 471 rel.

Maqbool Hussain for Appellant.

Sardar Ali Raza, A.A.G. and Fazal-e-Haq Abbassi for the State.

2023 M L D 24

[Balochistan]

Before Muhammad Ejaz Swatiand Rozi Khan Barrech, JJ

Dr. MUHAMMAD AKBAR---Petitioner

Versus

Mst. SAFIA KAKAR and 9 others---Respondents

Civil Revision No. 378 of 2017, decided on 12th April, 2021.

Civil Procedure Code (V of 1908)---

----O. I, Rr. 3, 10(2) & 9---Who may be joined as defendants---Court may strike out or add parties---Misjoinder and non-joinder---Scope---It is for the plaintiffs in a suit to bring the parties against whom they had any dispute and to implead them as defendant in the suit, but the general rule is subject to O. I, R. 10(2) of Civil Procedure Code, which provides about the necessary or proper parties---Person is a necessary party when in his absence relief claimed in the suit cannot be granted or without whom an effective order cannot be passed, whereas proper parties' presence enables the court to finally adjudicate upon the matter involved in the suit---Though O.I,R.9,C.P.C., provides that non-joinder and misjoinder of the parties will not by itself defeat the suit yet where there is absence of a necessary party i.e. the party who ought to have been joined and in whose absence an effective decree cannot be passed, the suit will ultimately fail unless necessary party is impleaded to the suit.

Mian Zafar Ali and another v. Mian Khurshed Ali 2020 SCMR 291 rel.

Gul Hassan Tareen for Petitioner.

Muhammad Amir Rana for Respondents Nos. 1 to 4.

2023 M L D 98

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ

ABDUL KHALIQ---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. (s) 137 of 2022, decided on 31st August, 2022.

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

----Ss. 51 & 9---Possession of narcotics---Bail---Scope---Section 51 of Control of Narcotic Substances Act, 1997, transpires that bail shall not be granted to an accused charged with an offence where the offence is punishable with death---Section 51 of Control of Narcotic Substances Act, 1997, provides a bar on grant of bail when the offence is exclusively punishable with death---When the upper limit of the punishment is death and the lower limited is 14 years' imprisonment then it suggests an inference that grant of bail in the offence under S. 9(c) of Control of Narcotic Substances Act, 1997, is not barred---Grant of bail is barred when the offence is exclusively punishable with death.

Abdul Shahid Qureshi v. The State 2003 PCr.LJ 202 ref.

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

----S. 36---Qanun-e-Shahadat (10 of 1984), Arts. 59 & 60---Report of Government Analyst---Expert opinion---Facts bearing upon expert opinion---Scope---Since opinion of a chemical analyst is conclusive under S. 36(2) of Control of Narcotic Substances Act, 1997, and is relevant under Art. 59 of the Qanun-e-Shahadat, 1984, therefore, fact which supports or is inconsistent with such opinion, is also relevant under Art. 60 of the Qanun-e-Shahadat, 1984.

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

----S. 497---Bail---Scope---Bail cannot be withheld as punishment and benefit of doubt can be extended even at bail stage.

Sarwar Khan Kakar for Applicant.

Jameel Akhtar Gajani, Additional Prosecutor General, Abdul Mateen, Deputy Prosecutor General, Awais Afzal, Assistant Commissioner Bakhtiar Abad, Muhammad Anwar, Investigating Officer and Miran Khan, Naib Tehsildar Levies for the State.

2023 M L D 121

[Balochistan]

Before Muhammad Aamir Nawaz Rana, J

QUDRATULLAH RAISANI and another---Appellants

Versus

ABDULLAH---Respondent

F.A.O. No. 4 of 2022, decided on 15th August, 2022.

(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment of tenant---Relationship of landlord and tenant, denial of---Scope---When relationship of landlord and tenant is denied then this issue as the preliminary issue has to be decided first without dilating upon other issues.

Ghulam Rasool v. Mian Khursheed Ahmed 2000 SCMR 632 rel.

(b) Balochistan Restrictions of Rented Buildings (Security) Act (X of 2015)---

----S. 3---Balochistan Urban Rent Restriction Ordinance (VI of 1959), S. 13---Ejectment of tenant---Rent agreement---Scope---Landlord and tenant, relationship of---Balochistan Restrictions of Rented Buildings (Security) Act, 2015, has made it mandatory for any landlord to comply with the provisions of the same and in case of any violation of the Act, the penal clause has also been incorporated, which envisaged imprisonment which may extend to one year or with fine or with both; being mandatory provisions of the Act same cannot be ignored---Where the Balochistan Restrictions of Rented Buildings (Security) Act, 2015, is not complied with it can be inferred that relationship of landlord and tenant does not exist between the parties.

(c) Constitution of Pakistan---

----Art. 5---Loyalty to State and obedience to Constitution and law---Scope---Article 5(2) of the Constitution leaves no room for speculation as far as compliance of law is concerned rather it considers obedience to law as the inviolable obligation of every citizen wherever, he may be.

(d) Administration of justice---

----Ignorance of law is no excuse.

Agha Faisal Shah for Appellants.

Rehmatullah Khan Mandokhail for Respondent.

2023 M L D 151

[Balochistan]

Before Abdul Hameed Baloch, J

JAMAL-UD-DIN KHILJI---Applicant

Versus

The STATE and another---Respondents

Criminal Bail Application No. 490 of 2021, decided on 23rd August, 2021.

Criminal Procedure Code (XLV of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 427, 109, 34---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, abetment, common intention---Bail, refusal of---Record transpired that the complainant recorded his statement before the trial court, wherein he narrated the thorough detail of the occurrence, specifically assigned the role of firing to the accused and co-accused---Death of deceased due to bullet injuries had not been disputed---Medico-Legal Certificate confirmed the unnatural death of deceased and bullet injuries to the injured---Parties knew each other prior to the incident and the occurrence took place in broad daylight, therefore there was no chance of mistaken identification---Statement of another ocular witness was yet to be recorded---Presence of accused had specifically been mentioned in the site plan---Site plan though was not substantive evidence but it could not be discarded without any reasons---Name of the accused/petitioner appeared in the FIR with specific allegation that he along with rest of culprits with their common object went over the place of occurrence, made indiscriminate firing upon deceased---At that stage it would be premature to say that the applicant had been involved in the case falsely by the complainant---Contention of the applicant that the FIR had been registered with delay of one hour fifty minutes despite the fact that the place of occurrence was one kilometre from the police station, had no force---Applicant remained absconder after registration of FIR---Record reflected that there was sufficient material available on record connecting the accused with the commission of the offence---Bail application filed by the co-accused had been rejected and the case of the applicant was similar with the co-accused---Bail application was dismissed, in circumstances.

PLD 1996 SC 241 and 1982 SCMR 153 ref.

Bilal Khan's case 2020 SCMR 937; Ayaz Ali's Case 2021 MLD 669 and Noor Sultan v. State 2021 SCMR 176 rel.

Shabir Rajput and Ali Durrani for Applicant.

Wajahat Ghaznavi for the State.

2023 M L D 226

[Balochistan]

Before Abdul Hameed Baloch, J

BAHADUR KHAN and 6 others---Petitioners

Versus

MUHAMMAD ANWAR and others---Respondents

Civil Revision No. 64 of 2018, decided on 31st March, 2021.

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

----Ss. 39, 42 & 54---Suit for cancellation of mutation, declaration and injunction---Concurrent findings of facts by two Courts below, setting aside of---Mutation of inheritance, assailing of---Unexplained delay in filing of suit---Respondents/plaintiffs assailed mutation of inheritance on the plea that deceased father of petitioners/defendants had wrongly excluded them from inheritance of their mother---Suit was concurrently decreed in favour of respondents/plaintiffs by Trial Court and Lower Appellate Court---Validity---Suit was filed after more than 30 years of demise of predecessor-in-interest of parties and approached Court after more than 20 years of demise of father of petitioners/defendants---Entry in revenue record was not challenged in lifetime of predecessor-in-interest of parties---No plausible reason was reflected in evidence of respondents/plaintiffs as to why their mother did not challenge inheritance---No one could become mum for his/her right for such a long period---High Court set aside judgments and decrees passed by two Courts below and dismissed the suit---Revision was allowed accordingly.

Mst. Asma Naz v. Muhammad Younas Qureshi 2003 YLR 587 and Khuda Bakhsh v. Habib Ullah, 1999 SCMR 1800 rel.

Mst. Jameela Khatoon's case 1997 CLC 1694 and Abdul Haq v. Mst. Surrya 2002 SCMR 1330 rel.

(b) Islamic Law---

----Fatwa---Proof---Fatwa cannot be relied unless its authority/ signatory is produced in Court and is subjected to cross-examination and entire circumstances are brought to his knowledge.

Muhammad Daud v. Muhammad Farooque 2015 CLC 652 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Though scope of revisional jurisdiction is limited but while exercising such jurisdiction Court can interfere where law point is involved or specific portion of evidence is omitted by Courts below---Court can also interfere where findings of Courts below are illegal, unlawful, based on misreading, non-reading of evidence and perverse---High Court while exercising such jurisdiction can re-evaluate and re-appraise entire evidence where findings are based on insufficient evidence and erroneous against fact.

Muhammad Akhtar v. Mst. Manna 2001 SCMR 1700 rel.

Khalil Ahmed and Ahsan Rafiq Rana for Petitioners.

Abdul Jabbar for Respondent No. 2.

Syed Manzoor Shah for rest of the Respondents.

2023 M L D 271

[Balochistan (Sibi Bench)]

Before Nazeer Ahmed Langove and Sardar Ahmed Haleemi, JJ

HIDAYATULLAH alias DILI JAN and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. (s) 128 of 2022, decided on 29th July, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property---Making or possessing explosives under suspicious circumstances---Act of terrorism---Bail, grant of---Scope---Accused persons were alleged to have been found in possession of explosive substances and had not made any disclosure before the police witnesses nor during investigation nor anything was brought on record regarding their link with any banned organization---Ingredients of S. 7, Anti-Terrorism Act, 1997, were missing---Prosecution had failed to bring history of involvement of accused persons in any criminal activity---One of the accused persons had been abducted two months prior to the instant case regarding which a report in roznamcha was duly lodged---During investigation prosecution had ignored such aspect of the case---Police had violated the mandatory provision of S. 103, Cr.P.C., despite the fact that the police had adequate time with them to associate public witnesses of the locality at the time of search and recovery of explosives--- Accused persons were admitted to bail.

Allah Ditta v. The State 2014 PCr.LJ 658; Muhammad Iqbal alias Bala v. The State 1995 SCMR 342; Muhammad Noman v. The State 2017 SCMR 560 and Kamran Shahzad v. Sikandar Latif and others 2014 YLR 1500 ref.

Ali Hassan Bugti and Muhammad Hassan Bugti for Applicants.

Yahya Baloch, Additional Prosecutor General (A.P.G.) for the State.

2023 M L D 285

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ

Syed HIDAYATULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 273 of 2021, decided on 14th October, 2022.

(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 15 Kg charas was recovered from the secret cavity of vehicle driven by the accused--- Contradictions were found in the statements of witnesses---Safe custody and transmitting of samples of narcotic from police to the FSL was not established---Neither the secret cavity was taken into possession separately after un-assembling the vehicle nor was produced before the Court for its examination---Appeal was allowed and accused was acquitted of the charge.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6---Possession of narcotics---Appreciation of evidence---In the present case, the protocols as envisaged under Rr. 5 & 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 were not followed---FSL report was inconclusive as neither quadruplicate copies of FSL report were prepared nor the requisite test for determining the material to be charas were undertaken---Prosecution had failed to prove the case beyond any glimpse of doubt, thus, the appeal was allowed and impugned judgment passed by Trial Court was set aside and consequently, the accused was acquitted of the charge.

Imam Bakhsh v. The State 2018 SCMR 2039; Zubair Khan v. The State 2021 SCMR 492 and Khair-ul-Bashir v. The State 2019 SCMR 390 ref.

(c) Criminal trial---

----Benefit of doubt---Scope---Benefit of doubt is a universal law, thus if it arises in a case, it must be extended to the accused as it is better to err in acquitting 99 culprits than to convict an innocent.

Khalil Ahmed Panezai for Appellant.

Yahya Baloch, Additional Prosecutor General for the State.

2023 M L D 319

[Balochistan]

Before Abdullah Baloch, J

SHAKIRULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 90 of 2021, decided on 8th September, 2021.

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

----S. 516-A---Provincial Motor Vehicles Ordinance (XIX of 1965), Ss. 2(24) & 32---Order for custody and disposal of property pending trial in certain cases---Owner of vehicle---Scope---Petitioner assailed rejection of his application under S. 516-A, Cr.P.C., for superdari/release of vehicle---Case of prosecution was that the petitioner while driving the vehicle in question negligently and rashly hit the son of complainant, due to which he died---Petitioner was claiming to be the owner and last possessor of the vehicle and prayed for its release on superdari---Person in whose name the motor vehicle was registered was the owner of said vehicle, which also included the transferee---Transferee had to be duly registered under S. 32 of the Provincial Motor Vehicles Ordinance, 1965---Vehicle was not registered in the petitioner's name---Petitioner was only in possession of return file, which in no manner could prove his ownership---Mere possession of original return file did not transfer ownership of a vehicle in terms of the Provincial Motor Vehicles Ordinance, 1965---Even otherwise, if the petitioner had purchased the vehicle in question from its previous owner, the same should have been transferred in his name within thirty days as provided under S. 32 of the Provincial Motor Vehicles Ordinance, 1965, but this had not been done---Application for release of vehicle was rightly rejected by the Trial Court---Revision petition was dismissed.

Amjad Ali Khan v. The State and others PLD 2020 SC 299 rel.

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

----S. 516-A---Order for custody and disposal of property pending trial in certain cases---Scope---If the vehicle is required to be released on superdari, it shall be released to its owner.

Arsalan Tareen for Petitioner.

Abdul Kareem Malghani, State Counsel.

2023 M L D 327

[Balochistan]

Before Rozi Khan Barrech, J

MEHTAB alias METHOO---Petitioner

Versus

The STATE---Respondent

Criminal (Jail) Revision No. 66 of 2021, decided on 8th October, 2021.

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

----Ss. 457 & 380----Criminal Procedure Code (V of 1898), S. 464---Lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment, theft in dwelling house---Appreciation of evidence---Mentally ill under trial prisoner was charged for committing theft in the dwelling house of complainant---Record showed that the Trial Court found that the accused seemed to be a patient of mental illness, a letter was sent to the Superintendent Jail for medical examination of the accused and the case was adjourned---On the said date, no report was received from the Superintendent Central Jail, and the case was fixed for another date, on which date the charge was framed against the accused/petitioner to which he pleaded guilty and confessed his guilt and on the same date he was convicted and sentenced---Neither the petitioner was sent to the Medical Board, nor any report was received from the Superintendent Central Jail---Trial Court did not keep in mind the fact of unsoundness of mind and incapability of the petitioner to defend his case---Course adopted by the Trial Court was not only contrary to law but had also prejudiced the petitioner---Petition was allowed by setting aside the impugned judgment and case was remanded to the Trial Court with the direction to decide the question of unsoundness of mind of the petitioner and incapacity to defend his case first and proceed with the matter thereafter.

Safia Bano and another v. Home Department, Government of Punjab, through its Secretary and others PLD 2021 SC 488 rel.

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

----Ss. 457 & 380----Criminal Procedure Code (V of 1898), S. 265-C---Lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment, theft in dwelling house---Appreciation of evidence---Non-supply of statement and documents to accused---Effect---Accused was charged for committing theft in the dwelling house of complainant---Record showed that no counsel was appointed by the accused, nor the trial court asked the petitioner as to whether he required the service of a counsel or not---Trial Court did not mention in its judgment that whether copies of the documents in terms of S. 265, Cr.P.C., were provided to the accused or otherwise---Trial Court, after framing the charge but without following the requirements of S. 265, Cr.P.C., recorded conviction and sentence against the petitioner on the basis of his confessional statement---High Court observed that prima facie, the Trial Court acted in a bit haste in proceeding to frame the charge and recording confessional statement of the petitioner without following the requirement of S. 265, Cr.P.C.---Such omission on the part of the Trial Court to comply with the provision of S. 265, Cr.P.C., could not be construed as a mere irregularity but was serious illegality going against the fundamental principle of safe administration of justice---Petition was allowed by setting aside the impugned judgment and the case was remanded to the Trial Court with the direction to decide the question of unsoundness of mind of the petitioner and incapacity to defend his case first and proceed with the matter thereafter.

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

----Ss. 457 & 380----Criminal Procedure Code (V of 1898), S. 221---Lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment, theft in dwelling house---Appreciation of evidence---Plea of guilty---Charge to state offence---Scope---Accused was charged for committing theft in the dwelling house of complainant---Charge showed that the same had not been framed in accordance with S. 221, Cr.P.C., and the basic ingredients of S. 457, P.P.C. were missing---While framing the charge the trial court did not ask the accused in order to commit an offence punishable with imprisonment in the language of S. 457, i.e. "he omitted lurking house trespass by night or house breaking by night"---Perusal of the record revealed that the accused/petitioner was neither nominated in the FIR nor identification parade of the accused was held---Only the alleged stolen mobile phones were recovered from him, but there was no eyewitness of the occurrence---Further question arising was as to whether the accused dishonestly received or retained stolen property knowing or having reason to believe the same to be stolen property or allegedly the accused/petitioner committed theft after lurking house-trespass by night---Charge so framed by the Trial Court, though included S. 457, P.P.C., but not a single particular in that respect was mentioned therein which included lurking house trespass by night---Petition was allowed by setting aside the impugned judgment and the case was remanded to the Trial Court with the direction to decide the question of unsoundness of mind of the petitioner and incapacity to defend his case first and to proceed with the matter thereafter.

M. Younus Habib v. State PLD 2006 SC 153 rel.

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

----S. 412---No appeal in certain cases when accused pleads guilty---Scope---Accused who pleaded guilty to the charge has no right of appeal against his conviction, but he can maintain an appeal only to the extent of the legality of the sentence passed against him by the Trial Court---Section 412, Cr.P.C., does not restrict the powers of the High Court to consider the legality of conviction in the exercise of its inherent jurisdiction.

Hakeemullah for Petitioner.

Abdul Karim Malghani, State Counsel.

2023 M L D 462

[Balochistan]

Before Abdul Hameed Baloch, J

Mir ABDUL RAB and others---Petitioners

Versus

GHULAM HAIDER and others---Respondents

Civil Revisions Nos. 47, 45 and 66 of 2014, decided on 26th April, 2021.

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

----Art. 129(g)---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Withholding best evidence---Scope---Plaintiffs claimed that the suit land was allotted to their predecessor by the Deputy Commissioner but the defendants were illegally interfering in their possession---Trial Court and Appellate Court concurrently dismissed the suit---Validity---Burden was on the shoulders of plaintiffs to prove that the allotment order was an official document---Mere assertion or placing the document with plaint could not amount to admissibility of document---Plaintiffs had not filed application before the court for calling the record from the office of Deputy Commissioner---When the party without any reason withheld the best evidence the presumption under Art. 129(g) of the Qanun-e-Shahadat, 1984 could be drawn against him/them---Testimonies of plaintiffs' witnesses were contradictory with each other---None of the witnesses stated year and month of alleged allotment in favour of the plaintiffs---Plaintiffs had failed to point out any misreading, non-reading of evidence, any illegality or irregularity in the judgments of the courts below---Revision petition was dismissed.

Asif Mowjee v. Zaheer Abbas 2005 CLC 877 rel.

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

----Arts. 117 & 118--- Burden of proof---On whom burden of proof lies---Scope---Burden lies upon the party who seeks the court to give judgment as to any legal right---Any person who seeks judgment upon existence of fact then has to prove the same through cogent, reliable, consistent, oral or documentary evidence---Party seeking relief would have to discharge its burden---Where the party fails to discharge the burden of proof in a suit he must fail---The words onus of proof mean that the party on whom onus lies must discharge the same through reliable, cogent and consistent evidence---Where the evidence is inconsistent then he must fail.

Habib Khan's case PLD 2012 Pesh. 80 rel.

(c) Pleadings---

----Evidence beyond pleadings---Scope---Plea not taken in pleadings cannot be allowed to be proved and no evidence can be led or looked into to support such plea.

Firdos Khan v. Zain Muhammad 2011 MLD 521 rel.

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

----S. 115--- Revisional jurisdiction---Concurrent findings---Scope---Scope of revisional petition is limited---Court while exercising revisional jurisdiction is not permitted to re-open the case, rather the court confines itself only to law point involved in the matter or any specific portion of evidence if omitted by the courts below---Concurrent findings of fact cannot be interfered with by the High Court until and unless grave injustice or material irregularity is proved.

Mst. Safia v. Mst. Bibi 2005 MLD 646 and Gul Baz Khan v. Muhammad Kamran 2021 CLC 538 rel.

Khuda-e-Nazar and Khalid Ahmed Kubdani for Petitioners (in Civil Revision No. 47 of 2014).

Saifullah Sanjrani, Additional Prosecutor General for Respondents Nos. 6 and 8 (in Civil Revision No. 47 of 2014).

Zahid Muqeem Ansari for Respondents Nos. 1 to 5 (called absent) (in Civil Revision No. 47 of 2014).

Zahid Muqeem Ansari (called absent) for Petitioners (in Civil Revision No. 45 of 2014).

Saifullah Sanjrani, Additional Advocate General for Respondents Nos. 5 and 7 (in Civil Revision No. 45 of 2014).

Khuda-e-Nazar and Khalid Ahmed Kubdani for Respondent No. 8 (in Civil Revision No. 45 of 2014).

Nauroz Khan Mengal for Respondents Nos. 6 to 60-e (in Civil Revision No. 45 of 2014).

Nauroz Khan Mengal for Petitioners (in Civil Revision No. 66 of 2014).

Khuda-e-Nazar and Khalid Ahmed Kubdani for Respondents Nos. 11-A to 11-J (in Civil Revision No. 66 of 2014).

Saifullah Sanjrani, Additional Advocate General for Respondents Nos. 9 and 12 (in Civil Revision No. 66 of 2014).

Zahid Muqeem Ansari (called absent) for Respondents Nos. 1 to 5 (in Civil Revision No. 66 of 2014).

2023 M L D 588

[Balochistan]

Before Abdul Hameed Baloch, J

Bibi ZULAHKHA (WIDOW) and others---Petitioners

Versus

Mst. NAIK MURGHA and others---Respondents

Civil Revision No. 382 of 2013 and Contempt Application No. 1 of 2015, decided on 3rd May, 2021.

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

----Ss. 42, 39 & 54---Limitation Act (IX of 1908), Art. 120---Suit for declaration, cancellation and permanent injunction---Limitation---Scope---Plaintiffs filed suit for declaration, cancellation of mutation entries and permanent injunction against the defendants in respect of suit property---Trial Court and Appellate Court concurrently dismissed the suit---Validity---Transfer mutation had been conducted in the year 1948---No evidence was produced by the plaintiffs to prove that the transfer mutation was prepared behind their back---Mere bald assertion could not be a ground to discard the document---Admittedly, the transfer mutation was in the knowledge of the predecessor of the plaintiffs---Plaintiffs had remained silent for approximately sixty years without any reason and justification---Burden of proof was on the plaintiffs to prove that their case was within limitation---Question of limitation could not be lightly ignored---Period provided for filing declaratory suit was six years---Judgments and decrees passed by the courts below were upheld---Revision petition was dismissed.

Muhammad Haroon's case 2001 CLC 810 and Salamat Ali v. Khair-Ud-Din, 2007 YLR 2453 rel.

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

----S. 3---Dismissal of suits, etc., instituted, etc., after period of limitation---Scope---Once limitation starts running, it cannot be stopped by any subsequent act.

Abdul Ghani's case 1998 CLC 2070 rel.

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

----S. 3---Dismissal of suits, instituted, after period of limitation---Scope---Court has to decide the point of limitation whether raised by the parties or not.

Abdul Ghani's case 1998 CLC 2070 and Dilmir v. Ghulam Muhammad PLD 2002 SC 403 rel.

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

----O. VII, R. 11---Rejection of plaint---Limitation---Scope---Where suit is barred by law it should be barred from inception---Time barred suit cannot be allowed to proceed further.

Abdul Ghani's case 1998 CLC 2070 rel.

Akh Palwak for Petitioners.

Adnan Basharat for Respondents.

Kamran Arshad for Applicant/Intervener.

2023 M L D 618

[Balochistan]

Before Abdul Hameed Baloch, J

MOMIN KHAN and another---Petitioners

Versus

ABDUL SATTAR and others---Respondents

Civil Revision No. 607 of 2019, decided on 31st March, 2021.

Specific Relief Act (I of 1877)---

----Ss. 42, 8 & 54---Balochistan Land Revenue Act (XVII of 1967), S. 52---Suit for declaration, possession and permanent injunction---Presumption in favour of entries in records-of-rights and periodical records---Scope---Plaintiffs filed a suit for declaration, possession and permanent injunction against the defendants alleging therein that the suit property was ancestral property and that the grandfather of plaintiffs had rented the suit property to the grandfather of defendants which was still continuing---Trial Court and Appellate Court concurrently decreed the suit---Validity---Defendants had merely denied the ownership of plaintiffs but had failed to produce extract from the revenue record in order to prove their ownership---Defendants had claimed ownership on the ground that utility bills were in their names---Defendants were duty bound to produce the revenue record or other document to prove their claim---Plaintiffs had claimed ownership through longstanding entries---Under S. 52 of the Land Revenue Act, 1967 the entries carried presumption of truth---Suit property had already been mutated in the names of the plaintiffs---Plaintiffs had not challenged the mutation entries neither in the revenue hierarchy nor civil court---Mere bald assertion could not rebut the document---Defendants had failed to point out any illegality or irregularity in the impugned judgments and decrees of the courts below---Revision petition was dismissed.

Bakhtiar v. Nasrullah 2015 CLC 385; Abdul Ghani v. Mst. Yasmeen Khan 2011 SCMR 837; Liaquat Ali's case 2013 MLD 1818; Muhammad Zaman v. Muhammad Ismail 1992 CLC 873; Muhammad Ismail v. Maqbool Ahmed 2001 CLC 252 and Mst. Safia v. Mst. Bibi 2005 MLD 646 rel.

Munir Sikandar for Petitioners.

Waleed Baloch for Respondents.

2023 M L D 659

[Balochistan]

Before Gul Hassan Tareen, J

FEHMIDA KIRAN---Petitioner

Versus

CHAIRMAN HOUSE ALLOTMENT COMMITTEE/ SECRETARY S&GAD and 2 others---Respondents

Civil Revision No. 250 of 2021, decided on 22nd August, 2022.

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

----O. VII, R. 11, S. 9 & O. XIV, R. 2---Courts to try all civil suits unless barred---Rejection of plaint---Issues of law and of fact---Dismissal of suit (on maintainability) after recording evidence---Scope---Respondent instituted a suit for declaration, mandatory and permanent injunction with the averments that the house allotted in his name by the Chairman House Allotment Committee, however, Civil Estate Officer allotted the subject house to the petitioner, without due course of law---Trial Court, after framing of issues and examining witnesses, dismissed the suit by holding that the respondent had failed to exhaust the remedy before proper forum---Respondent preferred an appeal, which was allowed and the case was remanded to the Trial Court for decision on merits---Validity---Trial Court after considering that controversy was required to be decided by recording of evidence had proceeded to record evidence, then at the mid of evidence, the provisions of O. VII, R. 11 or O. XIV, R. 2 of C.P.C. could not be pressed into service to non-suit a party---Trial Court in two of its earlier orders had held that the suit was competent and the issues required recording of evidence, however, later on, it was contrarily held that suit was not competent---Appellate Court had rightly set aside the order passed by Trial Court---Revision petition was dismissed.

Ali Akbar Zehri v. Syed Gul Shah 2012 CLC 190 ref.

Dr. Raees M. Mushtaque v. Province of Sindh through Secretary Food 2018 MLD 918 rel.

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

----O. VII, R. 11, O. XIV, R. 2 & S. 9---Courts to try all civil suits unless barred---Rejection of plaint---Issues of law and of fact---Dismissal of suit (on maintainability) after recording evidence---Scope---Where evidence commences, then resort to the provisions of O. VII, R. 11 & O. XIV, R. 2 of C.P.C. is not a proper mode for the decision of the suit.

Mst. Karim Bibi and others v. Zubair and others 1993 SCMR 2039 ref.

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

----O. XIV, R. 2---Issues of law and of fact---Scope---Question of fact or a mixed question of law and fact, cannot be effectively decided without recording the evidence.

Bank of Credits and Commerce and others v. Asrar Hussain and others 2007 SCMR 852 ref.

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

----O. VII, R. 11 & O. XIV, R. 2---Courts to try all civil suits unless barred---Rejection of plaint---Issues of law and of fact---Dismissal of suit (on maintainability) after recording evidence---Scope---Provisions of O. VII, R. 11, C.P.C. apply to the very initial stage of the suit while that of O. XIV, R. 2, C.P.C. apply at the latter stage, after issues have been framed---During the course of evidence, the application of the mentioned provisions is not a safe course.

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

----S. 9---Courts to try all civil suits unless barred---Scope---Where a statute provides an alternate remedy or forum, then, if the act of public functionary is statedly mala fide, void or without jurisdiction, then the general jurisdiction of a Civil Court under S. 9 of the Code is not barred.

Messrs Mardan Ways SNG Station v. General Manager SNGPL and others 2022 SCMR 584 rel.

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

----S. 9---Courts to try all civil suits unless barred---Scope---When an action of a public authority is stated to be without jurisdiction and void, then plaintiff is within his rights to maintain suit before civil court under S. 9 of the Civil Procedure Code, 1908.

Muhammad Nazir Khan v. Ahmad and 2 others 2008

SCMR 521 ref.

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

----O. VII, R. 11---Rejection of plaint---Plaint cannot be rejected in piecemeal---Scope---Plaint can only be rejected if all reliefs claimed by plaintiff are barred under law---Even if one of the prayers is maintainable, plaint cannot be rejected.

Shahzad v. IVth Additional District Judge, Karachi (East) PLD 2016 Sindh 26 and Attaullah v. Sanaullah PLD 2009 Kar. 38 ref.

Atif Faizan for Petitioner.

Muhammad Sharif and Malik Muhammad Azeem, Assistant Advocate General for Official Respondents.

2023 M L D 702

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ

ABDUL KHALIQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 440 of 2021, decided on 14th October, 2022.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Accused was charged that he along with his co-accused persons assaulted upon the complainant party and made firing, due to which brother of complainant was hit and died whereas other two persons received severe injuries---Ocular account of the incident had been furnished by complainant and two injured persons--- Complainant reiterated what he had mentioned in his report---Complainant was cross-examined at length, but he remained firm and consistent and his testimony went unshaken---Injured testified absolutely in line with the testimony of complainant---Said injured witness had given the similar account of the occurrence with specific roles as narrated by the complainant---Injured witness was subjected to a lengthy cross-examination, but he did not step back and remained firmed and consistent on material points, corroborating the testimony of complainant---Other injured corroborated the ocular account furnished by complainant and injured witness---Said witness had given the detail of the occurrence in a very natural manner, attributing specific roles to the accused as well as proclaimed offenders---After indepth scrutiny of the ocular account of the said prosecution witnesses, their testimonies were found confidence-inspiring and truthful as their statements coincided with each other, creating no space to doubt them---Medical evidence furnished by Police Surgeon, who examined the deceased confirmed the injury caused by firearm---Said witness was cross-examined, but nothing favourable could be extracted from his deposition---In a similar fashion, Medical Officer furnished his account of treating the injured persons---Facts and circumstances showed that the occurrence of murder took place at the spur of the moment---Had it been the motive of the accused to commit murder of injured cousin of complainant, he would have struck with the sharp side of axe and repeated the same until his death---Accused could not be held responsible either for the murder of deceased or the murderous assault upon injured, as such, he was only liable for the injuries caused to injured---Accused was convicted and sentenced two counts i.e. under S. 337-A(ii) to pay Arsh, which shall be 5% of Diyat to injured and imprisonment of two years RI as well as under S. 337-L(2) to suffer six months imprisonment---Appeal was partly allowed and modified the sentence by setting aside the conviction and sentence recorded by the Trial Court.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Accused was charged that he along with his co-accused persons assaulted upon the complainant party and made firing, due to which brother of complainant was hit and died whereas two other persons received severe injuries---Record showed that undoubtedly, the prosecution had established that the accused had attacked upon injured with an axe, inflicting injuries, detail whereof contained in the MLC, but it had been disagreed that he was liable to be convicted under S. 302 of P.P.C., while joining hands with the proclaimed offenders, having common intention shared by and object---Undeniably, role of firing had been attributed to proclaimed offender, whereby deceased succumbed; however, prosecution failed to establish the requisites of object and intention shared by the attackers, including the accused---Facts and circumstances showed that the occurrence of murder took place at the spur of the moment---Had it been the motive of the accused to commit murder of injured cousin of complainant, he would have struck with the sharp side of axe and repeated the same until his death---Accused could not be held responsible either for the murder of deceased or the murderous assault upon injured, as such, he was only liable for the injuries caused to injured---Accused, in circumstances, was convicted and sentenced two counts i.e. under S. 337-A(ii) to pay Arsh, which shall be 5% of Diyat to injured and imprisonment of two years' RI as well as under S. 337-L(2) to suffer six months' imprisonment---Appeal was partly allowed and modified the sentence by setting aside the conviction and sentence recorded by the Trial Court.

Wali Khan Nasar for Appellant.

Ghulam Mohiuddin Sasoli for the Complainant.

Yahya Baloch, Additional Prosecutor General (APG) for the State.

2023 M L D 746

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ

ROZI KHAN alias CHAKO alias DOLAT KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 203 of 2022, decided on 17th August, 2022.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotics---Scope---Appellant assailed his conviction under S. 9(c) of the Control of Narcotic Substances Act, 1997---Deposition of witnesses was consistent and in line on the point of apprehending the accused near the graveyard after an attempt by him to flee, search of his person, recovery of hashish weighing 1020 grams and taking sample of 05 grams in two parcels---Accused was identified by the witnesses---Contention of accused that his name was different was of no help---No flaw from the point of recovery of charas, making parcels thereof, keeping it in Malkhana and then transmitting the same to Forensic Laboratory for analysis was found, as such, an unbroken chain was formed---Tests applied and protocols (applied to carry out the test and result of the test) were duly mentioned in the report of Forensic Laboratory, therefore, the report was comprehensive and conclusive---Impugned judgment did not call for interference---Appeal was dismissed.

Ikramullah's case 2015 SCMR 1002; Imam Bakhsh's case 2018 SCMR 2039 and Khairul Bashar's case 2019 SCMR 930 distinguished.

Saifullah Khan v. The State 2021 SCMR 2005; Qaiser Javed Khan v. The State PLD 2020 SC 57; Liaquat Ali v. The State 2022 SCMR 1097 and Muhammad Rasool v. The State 2022 SCMR 1145 ref.

Rafiullah Barrech for Appellant.

Yahya Baloch, Additional Prosecutor General for the State.

2023 M L D 766

[Balochistan]

Before Naeem Akhtar Afghan and Sardar Ahmed Haleemi, JJ

SAJID ALI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. (T) 8 of 2021, decided on 12th October, 2022.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the brother of the complainant---Record showed that the complainant promptly got registered FIR against unknown persons, but on the same day when he got knowledge about the involvement of the accused in the commission of offence through eye-witness, he got recorded his supplementary statement, wherein he nominated the accused---According to eye-witness, he had seen the occurrence while coming from bazar to his home on his motorcycle and when he reached near date trees, he saw the accused firing upon deceased with pistol due to which he became scared and ran away to his home on his motorcycle, and when he came to know that victim had succumbed to the injuries he went to the house of deceased and told his brother/complainant about the occurrence and involvement of the accused---Eye-witness of the occurrence was a natural witness and had no enmity for false implication of accused---Complainant had attributed specific role of firing to the accused resulting in death of deceased---Statement of eye-witness was corroborated in material aspects with statement of witness who along with Medical Officer took the deceased to the hospital---Deceased succumbed to the injuries on his way to hospital---Deceased was examined by Medical Officer who issued Medico-Legal Certificate which revealed an oral firearm entrance wound in posterior aspect of left renal angle with no exit wound---Inquest report also supported the firearm injury of the deceased---Statement of eye-witness being natural witness of occurrence corroborated with recovery of crime empties, crime weapon, bloodstained mud and clothes of deceased and Medico-Legal Certificate---Such incriminating evidence was sufficient for maintaining the conviction and sentence of accused---Circumstances established that the prosecution had proved its case beyond any shadow of doubt--- Appeal against conviction was dismissed accordingly.

Gulistan v. State 1995 SCMR 1789 and Niaz-ud-Din and others v. The State 2011 SCMR 725 rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Recovery of incriminating material--- Reliance--- Accused was charged for committing murder of the brother of the complainant---Statement of recovery witness corroborated the recovery of one empty of pistol from the place of occurrence, recovery of bloodstained mud and bloodstained clothes of deceased and the recovery of crime weapon on the pointation of accused---Positive report of the firearm expert proved that the recovered crime empty had been fired from the recovered crime weapon---Recovery of crime weapon on the pointation of accused from the place which was not in knowledge of anybody was admissible in the circumstances of the case under Art. 40 of Qanun-e-Shahadat, 1984---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Zakir Khan v. State 1995 SCMR 1793 rel.

Zareen Dashti for Appellant.

Sudheer Ahmed, Deputy P.G. for the State.

2023 M L D 831

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ

RABBA and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 148 of 2021, decided on 28th October, 2022.

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

----Ss. 302(b), 147, 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Ocular account supported by medical evidence---Accused were charged that they along with co-accused persons committed murder of the brother of the complainant by firing---Ocular account of the incident had been furnished by complainant and two eye-witnesses---Complainant reiterated what he had narrated in the crime report, attributing specific role to the accused persons and proclaimed offenders of firing with Kalashnikovs upon the deceased, which proved to be fatal, culminating into the death of deceased at the spot, while he was irrigating his fields---Complainant was cross-examined with regard to the timing, distance of firing, registration of the FIR, but his testimony could not be shattered as he remained firm and consistent---Complainant stated that firing was made at a distance of 15-20 feet after the altercation---Said witness denied that he along with eye-witnesses were not present at the crime scene---Eye-witness of the occurrence corroborated the statement of complainant in clear words that accused persons armed with Kalashnikovs came at the orchard belonging to complainant; had an altercation with deceased and then fired at him indiscriminately, whereby after sustaining firearm injuries, he succumbed and the said culprits fled away---Said witness was cross-examined, challenging his presence, but he categorically denied the suggestions made by defence counsel---Said witness remained firm and consistent to his deposition---Statement of said witness had been found to be natural and confidence inspiring---Other eye-witness unveiled the occurrence in a similar fashion as narrated by the two eye-witnesses---Said witness also gave the similar account by nominating the accused persons for firing along with convict and proclaimed offenders upon deceased---During cross-examination, statement of said witness went unshaken---Presence of said witness was disputed and denied by the defence counsel---Complainant and eye-witnesses had proved their presence as their statements had been found to be confidence inspiring, truthful and natural---Incident was stated to have taken place in a day light where the question of mis-identity did not arise---Besides above, felons were well known by the complainant and eye-witnesses---Accused had not set up any defence, which could persuade the Court believe that the complainant and eye-witnesses had falsely implicated the accused persons and let the real culprits go scot-free---Prosecution through ocular account had proved the indictment to the hilt against the accused persons, leaving no room for other view---Undisputably, the defence had not questioned and disputed the unnatural death caused by firearms, including the nature and the locale of the injuries---Circumstances established that the prosecution had proved the indictment against the accused persons beyond any glimpse of doubt--- Appeal against conviction was dismissed, in circumstances.

(b) Criminal trial---

----Medical evidence---Scope---Medical evidence is not a corroborative piece of evidence, but is meant to confirm the nature and locale of the injury and can not identify the culprit.

Hashim Qasim v. State 2017 SCMR 986 rel.

(c) Criminal trial---

----Motive---Scope---If the prosecution sets up a motive, then it has to prove it and failure thereof will merely have an effect upon the quantum of sentence, but mere absence of the motive will not benefit the defence in any way.

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

----Ss. 302(b), 147, 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sharing of common object and intention---Scope---Mitigating circumstances---Accused were charged that they along with co-accused persons committed murder of the brother of the complainant by firing---Sharing of common object and intention was a phenomenon, which couldbe gathered at spur of the moment, which could be inferred from the peculiar circumstances of an occurrence---During course of the instant homicidal event, the nominated accused persons came together at the crime scene, quarreled with the deceased and together made fire shots upon the deceased and without disassociating each other made their escape good from the crime scene, which inferred that while sharing common object and intent, they came at the crime scene and committed murder of the deceased---However, since the seat of injuries caused by a specific felon was not known, thus, this factum could be taken into account as a mitigating circumstance, thus the conviction and sentence of life imprisonment awarded by the Trial Court were sufficient enough to serve the purpose---Circumstances established that the prosecution had proved the indictment against the accused persons beyond any glimpse of doubt---Appeal against conviction was dismissed, in circumstances.

Muhammad Akbar v. State PLD 1991 SC 923 and Askar Jan v. Muhammad Daud 2010 SCMR 1604 rel.

Kamran Murtaza for Appellants.

Syed Ayaz Zahoor for the Complainant.

Yahya Baloch, Additional Prosecutor General for the State.

2023 M L D 910

[Balochistan]

Before Abdul Hameed Baloch and Rozi Khan Barrech, JJ

MUHAMMAD AMEEN---Petitioner

Versus

DEPUTY COMMISSIONER PANJGUR---Respondent

C.P. No. (T) 117 of 2022, decided on 30th November, 2022.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Maintainability--- Factual controversy---Scope---Petitioner sought compensation of the land resumed by the respondent for public purpose---Validity---Petitioner had failed to attach any title document with the petition---Incumbent upon the petitioner exhausting remedy under Art. 199 of the Constitution to establish that he has legal right over the subject property and that such right was so clear that it left no room of doubt or any controversy---Matter involving the disputed and unclear title over the subject property could not be entertained and allowed to be agitated in writ jurisdiction---Exercise of extraordinary jurisdiction under Art. 199 was intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority was floating on the surface, which could be established without any elaborate enquiry into the questions involved in the matter---Petitioner had no clear or undisputed title over the subject land, which was Government land---Constitutional petition being not maintainable was dismissed.

Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848 rel.

Ulasvar Tareen (absent) for Petitioner.

Nasrutullah Baloch, A.A.G. and Changaiz Dashti, State Counsel for Respondent.

2023 M L D 974

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ

Haji ZAHIR KHAN---Petitioner

Versus

MURAD ALI and others---Respondents

C.P. No. 1475 and Civil Revision No. 495 of 2020, decided on 16th September, 2022.

Arbitration Act (X of 1940)---

----Ss. 14, 30 & 33---Arbitration award---Objections---Misconduct of arbitrator, determination of--- Jurisdiction of Court--- Scope---Concurrent findings of two Courts below---Petitioner assailed arbitration award and order dismissing objections filed by him on the plea of misconduct of arbitrators---Neither any specific allegations of misconduct figured in objection filed by petitioner, nor was it reflected in evidence adduced except an assertion that he did not expect justice from arbitrators---Such assertion did not, in any way, absolve him or give a way to escape from arbitration agreement, which he at his free will had entered with respondent---Proceedings carried out by arbitrators were quasi-judicial proceedings---Court while parting with the objections or making award as rule of Court could not sit as court of appeal looking into nitty gritty of proceedings and arbitration award---High Court declined to interfere in concurrent findings of facts of fora below, which did not suffer from any illegality or infirmity making the same to be unjust and unreasonable---Constitutional petition was dismissed, in circumstances.

Province of Punjab v. Mian Muhammad Saleem & Co. 1985 SCMR 1215; President of Islamic Republic of Pakistan v. Tasneem Hussain Naqvi 2004 SCMR 590 and Mian Corporation v. Lever Brothers of Pakistan Ltd. PLD 2006 SC 169 ref.

Adnan Ejaz Sheikh for Petitioner.

Muhammad Riaz Ahmed for Respondents.

2023 M L D 1054

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ

MUHAMMAD HASSAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 74 of 2021, decided on 30th September, 2022.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of his wife with knife and strangulating her with a dupatta---Record showed that the incident took place during midnight and the accused in the morning reported the matter to the Police Station, without any delay---Thus, spontaneity and immediacy of the statements or facts in relation to the fact in issue which were made without premeditation or artifice and without a view to the consequences were admissible, because they were the natural result of the act they characterized or elucidated---Statement/confession of the accused initially before the police authorities prior to commencement of the investigation was a res gestae, as till then neither the FIR was registered nor any investigation had started, however, his statement was followed by the recovery of the dead body and thereafter, his such statement was corroborated by the witnesses during the trial---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

(b) 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 before Court---Scope---Accused was charged for committing murder of his wife with knife and strangulating her with a dupatta---Case of the prosecution had also been corroborated by the judicial confession of the accused recorded by Judicial Magistrate---Said Judicial Magistrate deposed before the Court that after removing the handcuffs, the Court staff and the Investigating Officer were sent out of the Court---Said witness disclosed his identity and informed the accused that he was not bound to make confession and if he made a confession, it would be used against him as evidence and thereafter, when he was satisfied, he recorded the confessional statement and after completing all the legal formalities, the accused signed the confessional statement---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

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

----S. 164---Confessional statement of accused---Voluntariness and truthfulness---Scope---While evaluating the confessional statement main object of law is to ensure the voluntariness and truthfulness of the statement---If a statement is found to have been made voluntarily, without duress, coercion and inducement and simultaneously rings true, there will be no hurdle to accept the same irrespective of delay (if any), if recorded within the period of legal physical remand with police.

(d) 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---Retraction---Scope---Accused was charged for committing murder of his wife with knife and strangulating her with a dupatta---No doubt, there was delay in recording of confessional statement which was recorded on the last day of his physical remand i.e. 14th day and the same had also been retracted by the accused in his statement under S. 342, Cr.P.C.---However, mere delay in recording the confessional statement or subsequent retraction by the accused from his confessional statement, by itself, was not sufficient to affect its validity because conviction could be based on confession alone even though retracted, if the same was found to be true and voluntary---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others 2001 SCMR 988; Muhammad Ismail and another v. The State 1995 SCMR 1615 and Muhammad Amin v. The State PLD 2006 SC 219 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence----Ocular account supported by medical evidence---Effect---Accused was charged for committing murder of his wife with knife and strangulating her with a dupatta---Record showed that the story of prosecution and confessional statement of the accused was corroborated by the medical evidence---Lady Medical Officer, who conducted the medical examination of the dead body of deceased found flaccid and bruises, face swollen, tongue swollen and blue between the teeth, chin, neck and front chest scratched, two wounds on abdomen and left intestine bulging out, and the nature of wound was stated to be sharp edges regular---Defence failed to bring anything in accused's favour from the testimony of the Medical Officers---Ocular account and confessional statement were in consonance with the medical evidence---Case of prosecution was further supported by the recovery of blood stained knife "churri", blood stained cloth and dupatta of the deceased and its positive reports---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Ms. Fatima Nazar for Appellant.

Yahya Baloch, D.P.G. for the State.

2023 M L D 1086

[Balochistan]

Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ

PERVAIZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 505 and Murder Reference No. 17 of 2022, decided on 17th March, 2023.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for committing murder of the deceased and causing injuries to the complainant by inflicting dagger blows---Ocular account of the incident had been furnished by the injured and complainant, who was also eye-witness of the occurrence---Complainant testified that on day of occurrence at 12.20 a.m., he was present in the hotel, when owner of the hotel told him to account for the daily sale, as such deceased went to the accused party and asked to pay the dues, whereupon co-accused caught hold of the deceased and present accused inflicted dagger blow and when he went to rescue the deceased, accused injured him with his dagger---Record showed that the statement of the complainant was found to be natural and confidence inspiring, which had not been shattered by the defence---Though, the defence denied the testimony of complainant, but did not controvert the death of the deceased having been caused due to dagger blow---Prosecution to establish the unnatural death caused by dagger produced Medical Officer, who stated that on the same day, she medically examined deceased---Medical evidence of the deceased showed three stab wounds, one on the left side of the chest, second on the left arm and the last one on the right side of the abdomen---Medical Officer opined the cause of death to be damaged vital organ caused by a sharp weapon---Medico-Legal Certificate of the injured showed that he had received two wounds caused with a sharp weapon on his thigh---Medical evidence had confirmed the testimony of injured complainant---Even otherwise, at no stage the defence had disputed the unnatural death of the deceased caused by the dagger---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---However, due to mitigating circumstances, the death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of crime weapon on the pointation of accused---Reliance---Accused was charged for committing murder of the deceased and causing injuries to the complainant by inflicting dagger blows---Recovery witness testified that during interrogation, the accused made disclosure regarding commission of the offence by committing murder of the deceased by inflicting dagger blows as well as inflicting injury to complainant and threw the dagger on the roof top of the hotel and volunteered to recover the same on his pointation, as such, disclosure memo was prepared---Said witness further testified that that the accused led them to food point, being the crime scene, and made pointation of the place of occurrence, whereof memo of pointation was prepared---Recovery witness further stated that from the roof top of the hotel, accused got recovered the dagger which was stained with blood---Forensic Science Laboratory Report affirmed the dagger to be stained with human blood---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---However, due to mitigating circumstances, the death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Arts. 38, 39 & 40---Qatl-i-amd---Appreciation of evidence---Disclosure made by the accused---Recovery of weapon---Admissibility as evidence---Accused was charged for committing murder of the deceased and causing injuries to the complainant by inflicting dagger blows---Statement regarding admission of guilt amounting to confession was inadmissible in view of Arts. 38 & 39 of Qanun-e-Shahadat, 1984, but the second part, which related to the disclosure of a fact of recovery of the dagger from the roof top of the hotel, on pointation of accused was admissible and relevant as comtemplated under Art. 40 of Qanun-e-Shahadat, 1984---Thus, the recovery of dagger being the crime weapon whereby deceased was murdered and complainant was injured by all means was a corroborative piece of evidence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---However, due to mitigating circumstances, the death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

Askar Jan v. Muhammad Daud 2010 SCMR 1604 and Muhammad Abid v. State 2016 PCr.LJ 257 rel.

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

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence--- Sentence, reduction in---Mitigating circumstances---No pre-mediation---Accused was charged for committing murder of the deceased and causing injuries to the complainant by inflicting dagger blows---Occurrence seemed to have erupted suddenly with no premeditation in a spur of moment with rage, thus it was a mitigating circumstance, which did not justify capital sentence---Thus, the quantum of sentence awarded to the accused under S. 302(b), P.P.C., being harsh was converted from death sentence to the imprisonment for life, which would serve the purpose and would be sufficient---Appeal was dismissed with said modification in sentence.

Ghaffar Ali v. State 2021 SCMR 354 and Gul Mir v. State 2021 YLR 2041 rel.

Liaquat Ali for Appellant (in Criminal Appeal No. 505 of 2022).

Abdul Matin, Additional Prosecutor General for the State (in Criminal Appeal No. 505 and Murder Reference No. 17 of 2022).

Liaquat Ali for Respondent (in Murder Reference No. 17 of 2022).

2023 M L D 1154

[Balochistan]

Before Zaheer-ud-Din Kakar and Shaukat Ali Rakhshani, JJ

ABDUL BARI alias HAKEEM BARI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 15 of 2022, decided on 10th October, 2022.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for committing murder of the brother of complainant by firing---Ocular account of the occurrence had been furnished by three eye-witnesses---Testimony of said eye-witnesses had been found to be consistent, confidence inspiring and truthful, who at no stage deviated from their version, rather during cross-examination the occurrence got cemented, leaving no room to doubt their statements---As far as the medical account furnished by Medical Officer was concerned, she had confirmed the ocular account by stating that on examination she observed an entrance wound on back of chest measuring 0.5 centimeter, making an exit -wound in front of chest measuring 1 x 1 centimeter, damaging vital organs---During cross-examination nothing favourable could be extracted in favour of the accused, which could diminish its evidentiary value---In such situations, the Court had come to a firm conclusion that the testimony of eye-witnesses were trustworthy and confidence inspiring, which had given a fair account of the occurrence with specific role to the accused for committing murder of deceased and confirmed by the medical evidence, which was sufficient enough for the proof of the indictment---Appeal against conviction was dismissed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of pistol on the pointation of accused---Reliance---Accused was charged for committing murder of the brother of complainant by firing---As far as recovery of pistol on the disclosure and pointation of accused was concerned, though, the recovery through such disclosure had become relevant, but not sufficient enough to place reliance on such piece of evidence in a case of capital punishment, despite there being a positive Forensic Science Laboratory Report---Empty was recovered on 28.08.2019, whereas the pistol was recovered on 12.09.2019, but instead of sending the empties and pistol separately, both were sent to Forensic Science Laboratory together on 19.09.2019, which had diminished their evidentiary value---More-so, perusal of the Forensic Science Laboratory Report had also been found to be inconclusive and non-speaking, giving no reason at all as to how many and which points were found similar, to conclude that the empty shells of 30 bore were similar to the test bullet casing---Thus, on such score as well the Forensic Science Laboratory Report was of no help to the case of prosecution---Circumstances established that the prosecution had proved its case against the accused through ocular account supported by medical evidence---Appeal against conviction was dismissed, in circumstances.

2006 SCMR 1847; 2020 MLD 1557 and 2020 PCr.LJ 1236 ref.

Mushtaq v. The State PLD 2008 SC 1 and Ali Sher v. The State 2008 SCMR 707 rel.

Barkhurdar Khan Achakzai for Appellant.

Habib-ur-Rehman Baloch, Special Prosecutor ANF for the State.

2023 M L D 1260

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Muhammad Aamir Nawaz Rana, JJ

KAURA KHAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. (s) 38 of 2020, decided on 16th November, 2022.

(a) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----R. 166---Constitution of Pakistan, Arts. 4(1), 4(2)(a) & 10A---Criminal trial--- Strikes by lawyers causing delay in conclusion of trial---Breach of Fundamental Rights of accused---Every advocate who had accepted a brief to attend the court could not subsequently refuse to attend court because a boycott call was given by the Bar Association---Courts were under an obligation to hear and decide cases brought before them and could not adjourn matters merely because lawyers were on strike otherwise it would tantamount to becoming a privy to the strike---No obligation on the part of the Court either to wait or to adjourn the case on such count---Speedy justice was the fundamental right of every litigant and cases appearing on the board should not ordinary be adjourned on account of the absence of the lawyers unless there were cogent reasons to do so---Advocates were answerable for the consequences suffered by their clients on account of non-appearance due to strike observed by the Bar association---Thus, the Courts were not bound either to wait or to adjourn the cases due to non-appearance of the advocates on account of strike observed by the Association---Duty of the Judges was to proceed with a case during Court hours---Courts should not surrender to pressure tactics, boycotts or threats.

Jamat-i-Islami v. Federation of Pakistan PLD 2000 SC 111; Ex-Capt. Harish Uppal v. Union of India (2003) (2 S.C.C. 45); Ch. Shamshair Ali v. Khalid Mahmood 2015 YLR 47 and United State in Cohens v. Verginia 19 US 264 (1821) rel.

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

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of their colleague with the use of bricks---Record revealed that the occurrence in the case had taken place inside the house of one Mr. "G" and there was no other house or shop situated adjacent to the house of occurrence---Eye witnesses produced by the prosecution were very closely related to deceased inasmuch as the complainant was a brother of the deceased while the other witness was the real cousin of deceased---Both the alleged eye-witnesses were also chance witnesses and they had claimed to have been attracted to the place of occurrence upon hue and cry of the deceased which did not appeal to a prudent mind---Instead of providing support to the ocular account the medical evidence produced by the prosecution had gone a long way in creating dents in the case of prosecution---Medical evidence belied the ocular account inasmuch as in the Medico Legal Certificate one sharp weapon injury had been found on dead body of deceased which had not been explained by the eye-witnesses---Admittedly, the occurrence in the case had taken place inside the house of one Mr. "G", but he had not been produced and examined before the Trial Court---Leaving real brother in injured and helpless condition and proceeding to Police Station for lodging of FIR was also unnatural and it created serious doubts in the prosecution story---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Jamil Akhter Gajani, A.P.G. for the State.

2023 M L D 1289

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ

ALI HAIDER and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. (s) 60 of 2021, decided on 8th September, 2022.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the deceased by firing---Record showed that the accused persons were not previously known to the complainant and eye-witnesses, as such they were not nominated in the FIR---Physical description and features of the accused persons were not furnished in the Fard-e-Bayan of the complainant---Record further showed that the accused persons were complete strangers to the prosecution witnesses, therefore, due to lack of the description of accused persons in FIR, the evidence of identification parade was not safe to be considered relevant under Art. 22 of Qanun-e-Shahadat, 1984---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of one month in conducting identification parade---Effect---Accused were charged for committing murder of the deceased by firing---Accused persons were arrested on the day of incident and were admitted in hospital for treatment of injuries allegedly caused by the firing of complainant---According to Investigating Officer, on 27th December, 2018, first accused was discharged whereas the second accused was discharged on 21st December, 2018 and were formally arrested---Identification parade was held on 21st January, 2019 with an unexplained delay of about one month after formal arrest of the accused persons---Such delay created a doubt regarding the identification parade--- Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed accordingly.

Muhammad Arif v. The State 2019 SCMR 631; Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Sabir Ali alias Fauji v. The State 2011 SCMR 563 and Mehmood Ahmed and 3 others v The State 1995 SCMR 127 ref.

State through Advocate General, Sindh Karachi v. Farman Hussain and others PLD 1995 SC 1 rel.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Identification parade---Infirmities---Accused were charged for committing murder of the deceased by firing---Record showed that the witnesses and the accused persons were kept at the same police station before reaching the Judicial Magistrate for identification parade, therefore, it could not be ruled out that the complainant and eye-witnesses had opportunity to see the accused persons---Record did not transpire that police had taken precautionary measures necessary to conceal the identity of the accused persons to ensure that the accused should not be seen by the witnesses prior to identification parade---Record showed that besides suffering from other legal infirmities which had been overlooked by the Trial Court, the identification parade also carried an inherent defect that the complainant and eye-witnesses did not describe the role played by each of the accused persons at the time of the commission of offence---In this case, the identification parade was held at a C.T.D., Police Station---Judicial Magistrate, while conducting the identification parade had not taken an intelligent interest in the proceedings and had not prepared a list of all the persons who formed part of the line up at the parade along with their parentage, occupation and addresses---Thus, identification parade was conducted by the Judicial Magistrate in violation of law---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed accordingly.

Ghulam Rasul and 3 others v. The State 1988 SCMR 557; Khadim Hussain v. The State 1985 SCMR 721; Mehmood Ahmed and 3 others v. The State1995 SCMR 127 and Kanwar Anwaar Ali, Special Judicial Magistrate's case PLD 2019 SC 488 rel.

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

----Art. 22---Identification parade---Scope---Identification proceedings are not substantive piece of evidence but only corroboration of the evidence given by the witnesses at the trial and could not as a rule form a sufficient basis for conviction of an accused---In other words, the evidence of identification merely proves the existence of a relevant fact under Art. 22, Qanun-e-Shahadat, 1984 and not the existence of a fact in issue.

Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of empties and crime weapon---Reliance---Accused were charged for committing murder of the deceased by firing---Record showed that empties and crime weapons were recovered at the pointing out of the accused persons but the empties and crime weapon were not sent to the Forensic Science Laboratory separately---Recovery memos of blood stained earth, crime empties, motorcycle, last worn garments of deceased, mobile phone of accused and the evidence of the Medical Officer did not establish the guilt of the accused persons---Recovery of crime weapon at the instance of the accused was of no use as the same was recovered from a flood water channel and not from a place in the exclusive possession of the said accused, hence was not relevant---Moreover, the recovery was effected after two months and twenty two days of the disclosure and lodging of FIR which created doubt about the said recovery---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed accordingly.

Syed Ayaz Zahoor, Aster Mehak, Bakhtiar Sherani and Basit Tareen for Appellants.

Jameel Akhtar Gajani, Additional Prosecutor General for the State.

2023 M L D 1344

[Balochistan (Sibi Bench)]

Before Abdullah Baloch and Rozi Khan Barrech, JJ

GULZAR and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. (s) 24 of 2021, decided on 27th September, 2022.

(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---First Information Report lodged promptly---Accused were charged for making firing upon two brothers of the complainant, due to which they received injuries and later on one of them succumbed to the injuries---Record showed that the FIR was lodged by the complainant within thirty minutes of the occurrence and all the accused including the present accused were specifically named with definite roles assigned to each of them---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, 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---Ocular account supported by medical evidence---Accused were charged for making firing upon two brothers of the complainant, due to which they received injuries and later on one of them succumbed to the injuries---Ocular account of the occurrence had been furnished by complainant and injured being eye-witnesses---Said witnesses attributed the role of firing to the accused persons---Said witnesses gave a consistent and straightforward ocular account of the occurrence---Despite conducting 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---Medical evidence was in complete harmony with the ocular testimony of the complainant and injured witness, and no conflict could be pointed out to create a dent in the prosecution case---Medical evidence of the deceased was produced by Medical Officer, who conducted a postmortem of the deceased---According to the postmortem report, the death occurred due to damage of vital organs, i.e. lung, major vessels and excessive blood loss---Testimony of the said witness had also been corroborated by recovery of blood-stained earth, blood-stained garments of the deceased, recovery of crime empties and positive report of Forensic Science Laboratory---Said recovery had been duly proved through recovery witnesses and nothing adverse could be achieved despite cross-examination---Medical evidence produced by the prosecution also supported and corroborated the testimony of the eye-witnesses and no contradiction at all could be pointed out by the defense---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, 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---Natural witnesses present at the spot---Accused were charged for making firing upon two brothers of the complainant, due to which they received injuries and later on one of them succumbed to the injuries---Record showed that the presence of the said witnesses on the spot was proved, and the name of the witnesses was also mentioned in the promptly lodged FIR without any delay---At the same time, the Investigation Officer recorded the statements of eye-witness/injured witness soon after the occurrence---Complainant and injured/eye-witness was the real brothers of the deceased---Said witnesses were residents of the vicinity---Distance between the place of occurrence and the house of the complainant was 30/35 steps---Eye-witnesses had given a plausible explanation for their presence on the spot at the relevant time---Injured witness also supported the prosecution case since he sustained injuries on his person and was immediately shifted to the hospital where Medical Officer examined him and issued a medical certificate according to which the injured received injuries by means of firearms---Thus, the presence of injured witness was also established---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Abdul Rauf and others v. Mehdi Hassan and others 2006 SCMR 1106 and Muhammad Waris v. The State 2008 SCMR 784 rel.

(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---Related witnesses, evidence of---Reliance---Accused were charged for making firing upon two brothers of the complainant, due to which they received injuries and later on one of them succumbed to the injuries---Defence objected that only witnesses who were real brothers of the deceased were produced, thus the case of prosecution was lacking independent corroboration---Validity---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---Eye-witnesses were real brothers of deceased---Being close relatives of the deceased, the said witnesses were subjected to lengthy cross-examination, but nothing advantageous was brought on record, inconsistent with the case against the accused, who were implicated by the said witnesses---No serious enmity whatsoever was alleged against them, and besides that being the real brothers, the question of substitution of the real culprits with that of accused persons did not arise, which otherwise was a rare phenomena---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Allah Ditta v. The State PLD 2002 SC 52 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Recovery of crime weapons on instance of accused persons---Reliance---Joint recovery---Not admissible---Accused were charged for making firing upon two brothers of the complainant, due to which they received injuries and later on one of them succumbed to the injuries---So far as the alleged recovery of shotgun and 7mm rifle at the instance of both the accused persons and positive report of Firearms Expert were concerned, the prosecution produced Head Constable in that regard---According to his version on 01.10.2019, the accused made disclosure in the presence of the Investigation Officer about the commission of the offence---On disclosure and pointation of the accused shotgun and 7mm rifle were recovered on their pointation from the bushes---Said witness stated during cross-examination that the accused produced shotgun and rifle---On the other hand, Investigating Officer stated in his statement that on 30.08.2020, the accused made a disclosure, and on their pointation 7mm rifle and a shotgun were recovered---Major contradictions in the statements of both the said witnesses were found in respect of the recovery of alleged crime weapons---Investigation Officer stated during cross-examination that both the accused were taken together for recovery of crime weapons---According to both the said witnesses the said recovery was jointly effected from both the accused persons therefore, such recovery was not admissible---Said shotgun and 7mm rifle were recovered from an open area, and it was not recovered from the residence of the accused persons---Said aspect of the matter also caused reasonable doubt in respect of the recovery of crime weapons---Even if the recovery of crime weapons was excluded from consideration being legally inconsequential, direct evidence in the form of ocular account furnished by the complainant and injured/eye-witness were confidence-inspiring, which was supported by the medical evidence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

(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---Delay of one month and twenty six days in sending the crime weapons and crime empties for analysis---Effect---Accused were charged for making firing upon two brothers of the complainant, due to which they received injuries and later on one of them succumbed to the injuries---Occurrence allegedly took place on 01.10.2019---As per the record the crime empties of a 7mm rifle, shotgun and T.T pistol were recovered from the place of occurrence on the same date---Alleged recovery of crime weapons, i.e. shotgun and 7mm rifle were effected on 03.08.2020---As per the record the recovered shotgun and 7mm rifle and empties were received by the Firearms Expert together on 29.9.2020 with a delay of one month and twenty-six days---Sending of crime weapon (shotgun and 7mm rifle) and bullet empties recovered from the place of occurrence together with a delay of one month and twenty-six days to Firearms Expert created reasonable doubt in the prosecution case; therefore, the Firearms Expert report in that regard was inconsequential to the prosecution case---Even if the recovery of crime weapons was excluded from consideration being legally inconsequential, direct evidence in the form of ocular account furnished by the complainant and injured/eye-witness were confidence-inspiring, which was supported by the medical evidence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Jameel Akhtar Gajani, A.P.G. for the State.

2023 M L D 1435

[Balochistan]

Before Muhammad Ejaz Swati and Iqbal Ahmed Kasi, JJ

ATTAULLAH and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeals Nos. 49 of 2021 and 29 of 2022, decided on 10th August, 2022.

(a) Criminal trial---

----Circumstantial evidence---Scope---Where there is no direct evidence against accused and prosecution rests its case on circumstantial evidence, the inference of guilt could be justified only where all incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of other person---There must be chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with innocence of the accused and must be such as to show that within all human probability the act must have been done by the accused.

Talib Hussain v. The State 1995 SCMR 1538 and Muhammad Sharif v. The State PLD 2009 SC 709 rel.

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

----Ss. 302(b), 302(c), 201 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders, common intention---Appreciation of evidence---Sentence, reduction in---Conviction under S. 302(b), P.P.C. converted into one under S. 302(c), P.P.C.---Confessional statement of the accused---Accused were charged for committing murder of the brother of the complainant and his dead body was thrown into a well---Record showed that the accused made his confessional statements before the Judicial Magistrate---Record prepared by the Judicial Magistrate as well as his deposition proved conclusively that he took all precautionary measures to ensure that confession was voluntary---In that connection the accused, besides, admitting the commission of offence, also stated about the motive---Case of prosecution with regard to motive of offence was entirely based on confessional statements of the accused persons---Apart from above, there were circumstances, which were not taken into account by the trial Court, while awarding the sentence of life imprisonment to the accused persons---Prosecution mainly relied upon the statements of accused persons under S. 164, Cr.P.C., wherein, accused persons admitted the commission of crime, but according to the version of accused, the deceased time and again sexually assaulted him, thus, in order to save his honor, he managed to commit the murder of the deceased---As per record, it appeared that the accused committed the offence in an effort to defend himself from the sexual assault made on him by the deceased---Thus, it appeared that it was some immoral or improper act of the deceased himself, which had led or had at least contributed to his ultimate murder---Reading of confessional statement of accused revealed that he alone made a plan for committing murder of deceased, due to the reason that deceased carnally assaulted upon him more than once---No other evidence was available with regard to motive of the offence except the confessional statements of the accused persons, which brought the case of accused, within the purview of S. 302(c), P.P.C---In such circumstances, the appeal was partly allowed and conviction of accused was converted from 302(b) to 302(c), P.P.C and sentence was reduced from life imprisonment to that of ten years.

Muhammad Mumtaz v. Mehtab and another 2020 SCMR 200 rel.

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

----S. 164---Confessional statement---Scope---Confessional statement is to be taken as a whole and not in piecemeal.

Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

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

----Ss. 302(b), 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders, common intention--- Appreciation of evidence---Sentence, reduction in---Conviction under S. 302(b), P.P.C. converted into one under S. 201, P.P.C.---Accused were charged for committing murder of the brother of the complainant and his dead body was thrown into a well---Record showed that other accused had not taken any part in commission of the offence in furtherance of common intention, but he was well aware that the offence of murder had taken place---Said accused by his action and conduct concealed the evidence of commission of the offence and to save the main accused from being punished, caused disappearance of evidence of the offence, thus he was guilty of offence under S. 201, P.P.C.---Thus, the conviction and sentence of accused in question under S. 302(b), P.P.C., was set aside and he was convicted under S. 201, P.P.C and sentenced to suffer imprisonment for a period of five years---Appeal was partially allowed with said modification in sentence.

Muhammad Khair Mengal for Pauper Appellants.

Ms. Noor Jahan Kahoor, Additional Prosecutor General for the State.

2023 M L D 1484

[Balochistan]

Before Abdul Hameed Baloch, J

SHABANA and others---Petitioners

Versus

PUBLIC AT LARGE and others---Respondents

Civil Revision No. 317 of 2018, decided on 29th March, 2021.

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

----S. 4---Succession---Scope---Purpose of S. 4 of the Muslim Family Laws Ordinance, 1961 is to protect the right of orphan---Under the provision, the predeceased children of a deceased cannot be deprived from inheritance in any manner---Section 4 the Muslim Family Laws Ordinance, 1961, is clear and no ambiguity is left---Children of predeceased son or daughter are entitled to inherit the property of their grandfather on his death---Section 4 the Muslim Family Laws Ordinance, 1961, entitles the grandchildren for receiving the share which their father would have inherited had he been alive---Though the Federal Shariat Court has declared the S. 4 of the Muslim Family Laws Ordinance, 1961, to be repugnant to Islam but the operation of verdict stands suspended automatically in the wake of an appeal filed before the Supreme Court.

2018 YLR 2685 and Mst. Bhaggay Bibi v. Mst. Razia Bibi, 2005 SCMR 1595 rel.

Ishaq Nasir for Petitioners.

Sohail Ahmed Rajpoot for Respondents.

2023 M L D 1518

[Balochistan (Turbat Bench)]

Before Muhammad Kamran Khan Mulakhail and Muhammad Aamir Nawaz Rana, JJ

HAFEEZ ALI---Petitioner

Versus

GHAFOOR AHMED and 2 others---Respondents

C.P. No. (T) 204 of 2022, decided on 10th December, 2022.

Balochistan Local Government Act (V of 2010)---

----S. 2(1)(lxxxviii)---Constitution of Pakistan, Arts. 32, 34 & 36---Local bodies elections---Reserved seat for 'worker'---Petitioner was aggrieved of acceptance of candidature of respondent by election authorities against seat reserved for 'worker' in local bodies elections---Validity---In order to protect and safeguard rights of down trodden masses, minorities and women, special seats were sine qua non for their due representation otherwise feudal lords and privileged classes would usurp even their right of representation in the corridors of power---For such purposes Arts. 32, 34 & 36 were incorporated in the Constitution---True representation of subjugated classes in the corridors of power was the way forward to attain prosperity, tranquility and peace in society---Respondent did not qualify within the definition of "Worker" provided in the Balochistan Local Government Act, 2010---High Court set aside orders passed by election authorities and rejected nomination form for special seat reserved for Workers, as respondent had valuable assets in his name---High Court directed Returning Officer to "delete" name of respondent from the list of validly nominated candidates for special seat reserved for 'Worker'---Constitutional petition was allowed accordingly.

Majeed Ahmad v. District Returning Officer, Rajanpur PLD 2006 Lah. 43 and Malik Muhammad Hussain v. District Returning Officer 2008 SCMR 438 rel.

Rahib Khan Buledi for Petitioner.

Zakir Khan Kakar for Respondent No. 1.

Muhammad Haroon Kasi, Senior Law Officer, Shehzad Ahmed, Law Officer, Zahoor Mengal, Legal Advisor and Naseer Ahmed, Senior Personal Assistant, Election Commission of Pakistan for Respondents Nos. 2 and 3.

2023 M L D 1528

[Balochistan]

Before Rozi Khan Barrech, J

MUHAMMAD RAFIQUE---Applicant

Versus

The STATE---Respondent

Criminal Transit Bail Application No. 233 of 2023, decided on 12th May, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code ( XLV of 1860), Ss. 302 & 324---Qatl-i-amd, attempt to qatl-i-amd---Bail, grant of---Mere presence of accused at the place of occurrence---Record revealed that though the petitioner/ accused was nominated in the FIR, however, role of firing upon the deceased was not attributed to him but to another accused---First Information Report was also silent about the fact whether at the relevant time the petitioner/accused was present at the spot in armed condition or he was empty-handed---Mere presence of an accused at the time of commission of a crime was not enough to hold him responsible for commission of a crime unless the prosecution had succeeded in establishing that the petitioner/accused had also shared common intention or common object with the co-accomplice(co-accused) or had helped/facilitated him (co-accused)---Petitioner/accused, being empty-handed , could lend no help to his co-accused , rather he might have put himself in danger of being harmed by the other side had there been any retaliation or counter-attack by them---Whenever no overt act was ascribed to the accused, a lenient view was required to be taken towards the accused for granting him the concession of bail---Co-accused did not disclose that the accused was with him at the time of occurrence---Even the crime weapon had been recovered on the pointation of co-accused---Thus, no evidence, admittedly, was on record that the petitioner/accused had made firing upon the deceased---Trial Court would answer the question whether mere presence of the petitioner/accused at the place of occurrence could result into his conviction or not---Bail should not be ordinarily granted to an accused in a murder case where the trial had commenced, when there was a possibility of prejudicing the merit of the case, or there was a likelihood of abscondence of the accused---Holding of trial, at whatever stage, does not create bar in granting bail if the accused was otherwise found entitled---Case of the accused required further inquiry---Bail was allowed, in circumstances.

Aqil Khan Badini for Applicant.

Wajahat Khan Ghaznavi, State Counsel for Prosecutor General for the State.

2023 M L D 1853

[Balochistan (Sibi Bench)]

Before Nazeer Ahmed Langove and Iqbal Ahmed Kasi, JJ

Messrs WELCOME PRINCE RICE MILL through Partners---Petitioner

Versus

NATIONAL BANK OF PAKISTAN through Manager and another---Respondents

Constitutional Petition No. (s) 81 of 2022, decided on 20th March, 2023.

Civil Procedure Code (V of 1908)---

----S. 51(e), proviso, O. XXI, Rr. 37 & 66---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 19---Execution of decree---Arrest of judgment debtor---Statutory notice, non-issuance of---Effect---Petitioner was judgment debtor who was arrested during execution of decree for non-payment of decretal amount---Validity---Though vast powers were given to Executing Court but it was also legislative intention to protect citizen from personal humiliation in the capacity of a judgment debtor---Law provided mode of execution of decrees by way of issuing warrants of arrest but the same was subject to issuance of notice to judgment debtor---Executing Court without issuance of notice to petitioner to explain his position issued his warrants of arrest, which was against mandate of such provision of law---There was nothing on record to show that petitioner was ever served with such notice as contemplated in S. 51, C.P.C. read with O. XXI, R. 37, C.P.C. and had also failed to fulfill requirements of O. XXI, R. 66, C.P.C. for simple reason that no notice was issued to petitioner prior to issuance of his warrants of arrest---Executing Court committed serious illegality and material irregularity while passing order in question, which was not permissible under the law--- High Court directed Executing Court to proceed in accordance with the provision of S. 51, C.P.C. read with O. XXI, R. 37, C.P.C., and set aside order of arrest of petitioner passed by Executing Court---Constitutional petition was allowed accordingly.

Khursheed Anwar Khosa for Petitioner.

Muhammad Ali Khushnood for Respondents.

2023 M L D 1880

[Balochistan]

Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ

Mst. SUMEERA SALEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 638 of 2022, decided on 27th June, 2023.

(a) Criminal trial---

----Circumstantial evidence---Scope--Circumstantial evidence must be of such a nature, where different pieces of evidence must make a chain of events, where one end of it touches the dead body and the other end the neck of accused---If such link is found missing, the whole chain will break down and no conviction can be recorded on such circumstantial evidence.

Imran Alias Dullay v. The State 2015 SCMR 155; Azeem Khan v. Mujahid Khan 2016 SCMR 274 and Hashim Qasim v. The State 2017 SCMR 986 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Extra-judicial confession of accused---Accused was charged for committing murder of her husband and two daughters by slitting their throats---Wife of the complainant deposed that in the hospital, the accused confessed committing murder of her husband and two daughters by firstly administering sedative injections in order to make them unconscious and then slitting their throats with a cleaver---Admittedly, at the relevant time the accused had not been arrested by the police personnel and was not in police custody, when he made extra-judicial confession before wife of complainant---During cross-examination, said witness stated that the accused was treated by the Medical Officer in the trauma center, who soon got well and that they remained in the hospital till evening---Said statement was nothing, but an extra judicial confession made by the accused soon after the occurrence, seemingly without any pressure and inducement---Defence had not disputed the unnatural death caused by sharp-edged weapon by slitting of throats---Medical evidence confirmed the circumstantial evidence of complainant, his wife and Investigating Officer, who took the dead bodies to the hospital, where Medical Officer conducted their postmortem and produced Medico-Legal Certificates of the deceased persons---Circumstances established that the prosecution successfully proved the indictment against the accused, which did not require to be meddled with---Appeal against the conviction was accordingly dismissed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence and other incriminating material from the spot---Reliance---Accused was charged for committing murder of her husband and two daughters by slitting their throats---Investigating Officer in the presence of officials secured bloodstained cleaver suspected to be the crime weapon, whereby throats of the deceased persons were slit, where accused was also found lying unconscious---Two bloodstained swabs, two pieces of bloodstained bed sheets and a piece of sheet stained with blood were also recovered---After analysis of the bloodstained clothes, bed sheets and other articles secured from the crime scene, a positive report was received from Forensic Science Agency, which was secured in the presence of official witness, showing that the articles in question were stained with human blood---Report further suggested that the DNA profile obtained from swabs taken from blade of toka had a mixture of at least two individuals i.e. male individuals, and the female individual and the stained sections taken from a hood upper belonging to the accused had a mixture of two females referring to the accused---Circumstances established that the prosecution successfully proved the indictment against the accused, which did not require to be meddled with---Appeal against the conviction was accordingly dismissed.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Arts. 38, 39 & 40---Qatl-i-amd---Appreciation of evidence---Disclosure of accused recorded in DVD---Evidentiary value---Accused was charged for committing murder of her husband and two daughters by slitting their throats---Another piece of evidence, whereupon the prosecution rested its case was the disclosure of the accused recorded in the presence of Police Officer and video recording saved in a Digital Video-Versatile Disc (DVD), which was taken into possession---Said DVD was played in court in the presence of said Police Officer, whereof a transcript was also prepared---Accused was shown in the said video, while making disclosure to have administered sedative drugs injections to her deceased husband and daughters, before slitting their throats, culminating into their homicidal death due to the motive that her husband had illicit relations with another lady---Accused alleged that she used to quarrel with her husband and he stated that since they could not get divorced being Christians, as such, to get rid of them, he would kill the accused and their children---Thus apprehending that her husband would kill them, she on the pretext of administering vitamin and calcium injections administered her husband and children the sedative drugs by syringes, who became unconscious, whereafter she slit their throats with the cleaver (Toka) and wrote a suicidal note-letter, admitting the murders of her husband and children---Irresistibly, the memo of disclosure and DVD recording thereof were made in the custody of the police and the facts narrated thereof were known to the Police Officials prior to the disclosure and video recording---Prosecution witnesses had already visited the crime scene, collected the sedative drug materials and a suicidal note-letter written by the accused---Thus, in consequence of such disclosure no new or fresh facts had surfaced, therefore, the disclosure including the video recording of the disclosure being in contravention of Arts. 38 & 39 of Qanun-e-Shahadat, 1984 did not square within the preview of the Art. 40 of Order, 1984---Henceforth no explicit reliance could be placed thereon---Appeal was dismissed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of suicide note-letter---Proof---Accused was charged for committing murder of her husband and two daughters by slitting their throats---Recovery of suicide note-letter revealed the motive of illicit relations of deceased husband of accused with one lady; apprehending danger of being killed by her husband and admitting murder of her deceased husband and children---To prove that the suicide note-letter written by the accused herself, the prosecution produced Judicial Magistrate, who stated to have obtained the specimen handwriting of the accused, whereof he produced certificate of handwriting issued by him---Defence disputed statement of Judicial Magistrate but his testimony went unshaken---Specimen handwriting of the accused and suicide note-letter, which were sent for forensic analysis, a positive Forensic Science Laboratory Report was received, whereby it was confirmed that the writing of the accused tallied the handwriting on the suicide note-letter---Accused had neither come forward to suggest during cross-examination as to why she had been indicted for the murder of her family members nor stepped into the witness box as contemplated under S. 340(2) of Cr.P.C. to offer explanation to the allegations brought forward against her by the prosecution---Circumstances established that the prosecution successfully proved the indictment against the accused, which did not require to be meddled with---Appeal against the conviction was accordingly dismissed.

Muhammad Khalid Kakar for Appellant.

Habibullah Gul, A.P.G. for the State.

2023 M L D 1972

[Balochistan]

Before Abdullah Baloch and Rozi Kan Barrech, JJ

MUHAMMAD IDREES---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 35 and Criminal Revision Petition No. 16 of 2022, decided on 29th August, 2022.

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

----Ss. 302(b), 394, 397 & 34---Qatl-i-amd, person voluntarily causing hurt in committing or attempting to commit robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Benefit of doubt---Ocular account not proved---Accused was charged that he along with his co-accused snatched amount from the complainant and on resistance, accused made firing upon complainant due to which he sustained injuries---Meanwhile a property dealer came there, and accused made firing upon him, due to which he was hit and died---Record showed that the FIR was lodged by the complainant against unknown accused persons---Complainant had not given any description of the unknown accused persons and no identification parade of the accused had been conducted through the complainant and other witnesses---Even when witnesses appeared before the court, they did not implicate the accused with the commission of the alleged offence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 394, 397 & 34---Qatl-i-amd, person voluntarily causing hurt in committing or attempting to commit robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Benefit of doubt---Extra-judicial confession by accused---Accused was charged that he along with his co-accused snatched amount from the complainant and on resistance, accused made firing upon complainant due to which he sustained injuries---Meanwhile a property dealer came there, and accused made firing upon him, due to which he was hit and died---Record showed that the extra-judicial confession of the accused was recorded on 29.12.2019 in the presence of Police Officers---Police had claimed that the extra-judicial confession was voluntary, but on the other hand, there were major contradictions in the statements of two Police Officers---One of the said Police Officer stated that on 08.12.2019, the accused disclosed about the occurrence---On the other hand, other witness stated in his statement that on 29.12.2019, he arrested the accused and on the same date, the accused made a disclosure about the commission of the offence---After the alleged disclosure, the snatched amount, i.e. Rs.500,000/- and one helmet were recovered on pointation of the accused from his house---One witness stated that the alleged recovery was effected on the next date after the alleged disclosure, but on the other hand, other witness stated in his statement that the accused made a disclosure on 29.12.2019 and on the same date on his pointation the snatched amount and one helmet were recovered from his house---Said material contradictions created reasonable doubt in the prosecution case---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 394, 397 & 34---Qatl-i-amd, person voluntarily causing hurt in committing or attempting to commit robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Benefit of doubt---Recovery of looted amount and a helmet on the disclosure of the accused---Accused was charged that he along with his co-accused snatched amount from the complainant, and on resistance, accused made firing upon complainant due to which he sustained injuries---Meanwhile a property dealer came there, and accused made firing upon him, due to which he was hit and died---Record showed that the alleged snatched amount was recovered from a residential room of the house of the accused from a closet---In the said house, the brother and mother of the accused were also living---Alleged snatched amount and helmet were lying in an open place and it had not come on record that the said closet was locked at the time of alleged recovery---No description of the snatched amount had been given by the complainant in his report, which was allegedly recovered from the accused---Recovery of the cash amount in view of the said omissions made by Investigation Officer was completely deficient as an incriminatory piece of circumstantial evidence to connect the accused with the commission of the alleged offence---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Confession before police---Admissibility---Confession made by an accused person while in police custody is not admissible.

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

----Art. 40---Disclosure made by the accused---Scope---If something related to the case is recovered or any fact is discovered in consequence of information conveyed by the accused person, then the information so received would be admissible in evidence to the extent of recovery if corroborated with other pieces of evidence within the purview of Art. 40 of the Qanun-e-Shahadat, 1984, because then, the presumption would be towards its truthfulness---If nothing in consequence of the disclosure is recovered or discovered, then the information so received by itself would not be admissible.

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

----Ss. 302(b), 394, 397 & 34---Qatl-i-amd, person voluntarily causing hurt in committing or attempting to commit robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from the possession of accused---Accused was charged that he along with his co-accused snatched amount from the complainant, and on resistance, accused made firing upon complainant due to which he sustained injuries, meanwhile a property dealer came there, accused made firing upon him, due to which he was hit and died---Record showed that one pistol along with six live cartridges were recovered from the possession of the accused, which were taken into possession through recovery memo in his presence---However, it did not appeal to the prudent mind that the accused who allegedly committed the murder of the deceased would keep a pistol in his possession and would remain in an open place on the main intersection waiting for the police to come and arrest him and recover the crime weapon---Such fact created doubt about the veracity of the prosecution story---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 394, 397 & 34---Qatl-i-amd, person voluntarily causing hurt in committing or attempting to commit robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Benefit of doubt---Delay of twenty four days in sending the weapon and crime empties for analysis---Safe custody of crime weapon not established---Accused was charged that he along with his co-accused snatched amount from the complainant, and on resistance, accused made firing upon complainant due to which he sustained injuries---Meanwhile a property dealer came there, and accused made firing upon him, due to which he was hit and died---Occurrence took place on 08.12.2019, and the accused was arrested on 29.12.2019, and on the same date, the alleged recovery was effected from the accused---Two bullet empties were taken into possession by the prosecution through a recovery memo on the day of occurrence, i.e. 08.12.2019---As per Forensic Science Agency Report two bullet empties were received on 02.01.2020, and one 9mm caliber pistol, was received on 22.01.2020---Empties recovered from the place of occurrence were sent to Forensic Science Agency after a delay of four days after recovery of crime weapon---Alleged recovery of the crime weapon from the accused was affected on 29.12.2019, but the same was sent to Forensic Science Laboratory on 22.01.2020 after a delay of twenty-four days---Delay so caused in sending the allegedly recovered crime weapon for chemical analysis was unexplained, and also, there was no explanation in respect of safe custody of the crime weapon within the custody of Investigation Authorities---Moreover, sending the empties after the recovery of the alleged crime weapon created serious doubt as to why the crime empties were retained by the Investigation Officer till the recovery of the pistol---Possibility of manipulation could not be ruled out---Thus, the Firearms Expert report in that regard was inconsequential to the prosecution case---Appeal against conviction was allowed, in circumstances.

Nazir Ahmed v. The State 2016 SCMR 1628; Ali Sher and others v. The State 2008 SCMR 707; Ali v. The State 2007 SCMR 525 and Muhammad Ashraf v. The State 2019 SCMR 652 rel.

(h) Criminal trial---

----Recovery of crime weapon---Scope---Recovery of a crime weapon is a corroboratory piece of evidence---In the absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged---When substantive evidence fails to connect the accused person with the commission of the offence or is disbelieved, corroborative evidence is of no help to the prosecution case.

Dr. Israr-ul-Haq v. Muhammad Fayyaz and another 2007 SCMR 1427 rel.

(i) Criminal trial---

----Benefit of doubt---Conviction---Conjectures and probabilities---Scope---Mere conjectures and probabilities could not take the place of proof---If a case is decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of giving benefit of doubt to an accused person, which has been a dominant feature of the administration of criminal justice with the consistent approval of the Constitutional Courts, will be reduced to naught.

Jameel Ramzan, Abdul Sattar Sherani and Jameela Panezai for Appellant (in Criminal Appeal No. 35 of 2022 and for Respondent in connected Criminal Revision Petition No. 16 of 2022).

Ali Durrani for the Complainant (in Criminal Revision Petition No. 16 of 2022).

Ameer Hamza, A.P.G. for the State.

2023 M L D 1252

[Supreme Court (AJ&K)]

Present: Kh. Muhammad Nasim and Raza Ali Khan, JJ

SHER ALAM---Appellant

Versus

ABDUL RASHEED and 3 others---Respondents

Criminal Appeal No. 28 and Criminal Miscellaneous No. 22 of 2022, decided on 2nd March, 2023.

(On appeal from the judgment of the Shariat Appellate Bench of the High Court dated 28.09.2022 in Revision Petition No. 147 of 2022)

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

----Art. 42---Appeal---Concealment of facts---Effect---Where the appellant had concealed the fact of dismissal of his earlier revision petition by the District Criminal Court from the Shariat Appellate Bench of the High Court, the Supreme Court observed that such fact indicated the mala fide of the appellant---Appellant had come to the court with unclean hands and was therefore not entitled to the relief sought---Appellant's attempt to gain a benefit or advantage through questionable or unethical means was sufficient grounds to deny the relief requested---Once the earlier revision petition had been filed and the same had attained finality, there was no occasion for the appellant to file the second revision before the Shariat Appellate Bench of the High Court---Appeal was dismissed.

Kh. Maqbool War, Advocate-General and Imtiaz Hussain Raja, Advocate for Appellant.

Sh. Masood Iqbal, Advocate for Respondents.