MLD 2024 Judgments

2024 M L D 1185

[Federal Shariat Court]

Before Iqbal Hameedur Rahman, CJ and Syed Muhammad Anwer, J

Muhammad Kashif---Appellant

Versus

The State and 2 others---Respondents

Criminal Appeal No. 02-I of 2023, decided on 29th February, 2024.

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

----S. 7---Commission of offence of qazf---Appeal against acquittal ---Appreciation of evidence---Motive not proved---Accused was charged for levelling allegation containing imputation of zina against the complainant---Mala fide intention is an essential ingredient to prove offence of Qazf and in absence of such intention to harm the reputation, or hurt the feelings of such person the offence of Qazf as mentioned in S.3 of Ordinance No. VIII of 1979 was not made out---During trial, the accused was not able to prove the motive of demanding Chatti as such they defaulted in establishing motive---In the present case, the intention to harm the reputation of complainant and his brother had not been proved during trial---So in absence of such evidence indicating intention to harm reputation of the complainant and his brother prosecution had failed to prove its case---Appeal against acquittal was dismissed accordingly.

Nasrullah v. The State and 4 others 2016 PCr.LJ 979; Shahzad alias Shaddu and others v. The State 2002 SCMR 1009; Rana Shahbaz Ahmed and 2 others v. The State 2002 SCMR 303; Abdul Ghani v. The State through P.G. Balochistan and another 2022 SCMR 544; Azeem Khan and another v. Mujahid Khan 2016 SCMR 274 and Maj.Gen. (Retd.) Abdul Aziz and 2 others v. Mst. Kanwal Rabbani and another 1996 PCr.LJ 2030 ref.

Sarfraz and another v. The State 2023 SCMR 670; Ali Asghar alias Aksar v. The State 2023 SCMR 596 and Maqsood Alam and another v. The State and others 2024 SCMR 156 rel.

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

----S. 7---Commission of offence of qazf---Appreciation of evidence---Appeal against acquittal---Solitary statement of victim---Conviction---Scope---Accused was charged for leveling allegation containing imputation of zina against the complainant---So far as the production of four witnesses in support of accusation of 'zina' according to clause (a) to second exception of S.3 of the Ordinance VIII of 1979 was concerned, the victim being minor girl of 14/15 years could not produce four witnesses of the 'zina bil jabr' but solitary statement of victim was sufficient to record conviction of an accused for an offence of zina-bil-jabr---Appeal against acquittal was dismissed accordingly.

Shahid Maqsood Siddiqui v. The State 2002 YLR 2949; Shahzad alias Shaddu and others v. The State 2002 SCMR 1009 and Rana Shahbaz Ahmed and 2 others v. The State 2002 SCMR 303 rel.

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

----S. 7---Criminal Procedure Code (V of 1898), S. 367---Commission of offence of qazf---Appeal against acquittal---Appreciation of evidence---Language and contents of judgment---Accused was charged for leveling allegation containing imputation of zina against the complainant---Clause (b) of second exception to S.3 of Ordinance VIII of 1979 is concerning a person held for the Offence of Qazf if a witness gives false evidence of commission of 'zina', in Court or according to findings of the court false accusation of zina-bil-jabr is levelled---Trial Court while deciding the complaint filed by respondent No.2 in its judgment had not given any finding regarding giving false evidence by the witnesses/respondents---Similarly, clause (c) of second exception to S.3 of Ordinance VIII of 1979 also concerned the complainant who made false accusation of 'zina-bil-jabr but in the complaint case filed by the respondents, the Trial Court had not given any finding that complainant had made false accusation of 'zina-bil-jabr, rather the complainant and his brother were acquitted while extending them benefit of doubt---Appeal against acquittal was dismissed accordingly.

Bakht Ali and another v. The State 1993 PCr.LJ 1872 rel.

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

----S. 7---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Commission of offence of qazf--- Appeal against acquittal---Appreciation of evidence---Withholding material witness---Effect---Accused was charged for leveling allegation containing imputation of zina against the complainant---Complainant of FIR alleged that his daughter, who was 14/15 years of age, used to go to the house of complainant for reciting Holy Quran, where she was subjected to 'zina bil jabr' by the complainant while his brother performed duty as a guard---Such allegation of 'zina' was narrated by complainant to ASI who lodged the crime report and at the time narrating allegation of 'zina' to ASI no one from the side of complainant, who witnessed the imputation of 'zina' from the mouth of complainant, was present enabling them to give direct evidence of offence of 'qazf liable to Hadd---Apart from that, said ASI, who was natural witness of imputation of 'qazf, before whom allegation of 'zina' was levelled, was not produced as prosecution witness in the complaint case of 'qazf filed by the complainant---Keeping in view the absence of witnesses at the first time of leveling allegation of 'zina' by complainant before ASI, their evidence would be considered as hearsay and as such could not be relied upon---Appeal against acquittal was dismissed accordingly.

(e) Criminal trial---

----DNA profile---Scope---DNA report does not give any support to the case of prosecution, without solid corroborative evidence.

Atta-ul-Mustafa v. The State and another 2023 SCMR 1698 rel.

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

----S. 7---Commission of offence of qazf---Appeal against acquittal ---Appreciation of evidence---Infirmities in statements of complainant and witnesses---Scope---Accused was charged for leveling allegation containing imputation of zina against the complainant---Record showed that proper charge was not framed by the Trial Court as it did not advert to the factum that the acquittal of the accused and his brother was not on the basis of the offence under S.376(i) P.P.C, rather the acquittal of accused and his brother was on the basis of private complaint filed by the respondent No.2.---At the time of framing of charge no such objection was raised to rectify the charge---Another infirmity which was observed in the cursory statements of the complainant and witnesses was the omission to mention date, time and venue of the occurrence where the offence of "qazf" was alleged to have been committed by the respondents---Said infirmity was also reflected in their stereotype statements while appearing as witnesses---Since, there was an omission on the part of the witnesses to highlight the time, date and place of occurrence in their deposition as witnesses, therefore, their evidence could not be relied upon---As such omission to disclose time, date and place of occurrence was significant, going to the root of the case, putting a serious dent in the case of prosecution and by itself was sufficient to brush aside the prosecution evidence---Appeal against acquittal was dismissed accordingly.

Sardar Muhammad Yaqoob for the Appellant.

Ch. Ghulam Miran for Respondents.

Saeed Ahmed Shaikh, Additional P.G, Punjab for the State.

Date of hearing: 29th February, 2024.

Judgment

Iqbal Hameedur Rahman, CJ.---After conclusion of trial in private complaint filed under Section 7 of The Offence of Qazf (Enforcement of Hadd) Ordinance VIII of 1979 (Hereinafter called Ordinance VIII of 1979), learned Additional Sessions Judge Jampur-1, District Rajanpur, acquitted the respondents Nos. 2 and 3 (The respondents) from the charge of "Qazf" through judgment dated 29th October, 2022, resulting in preference of present appeal, by the appellant, complainant of private complaint, questioning the legality and validity of adverse conclusion, seeking its annulment with prayer to record conviction against the respondents, awarding them appropriate sentence.

1. The accusation contained in the private complaint (EX.PA) filed on the strength of statement of the present appellant are that Complainant is an educated person belonging to respectable landlord family. The respondents in order to defame and get "Chatti" (reparation) from the appellant lodged crime report No.202/2016 under section 376 (i) of the Pakistan Penal Code, 1860 (Act XLV of 1860) (Hereinafter called The Code) at police station, Muhammadpur against Muhammad Kashif-appellant leveling false allegation of 'zina' with Mst. Tahira Bibi respondent No.3, while his brother Rashid Ali was alleged to have stood as guard. As a result, police apprehended the appellant and his brother and got conducted DNA test of Mst. Tahira Bibi-respondent, the appellant and his brother. The DNA report resulted in 'negative'. Then, police placed Rashid Ali brother of the appellant in column No.2 of the report of the Code of Criminal Procedure, 1898 (Act V of 1898) (Hereinafter called Act V of 1898). As Mst. Tahira was pregnant, after her delivery, DNA test of Mst. Tahira and her baby as well as appellant and his brother-Rashid Ali was again conducted in order to ascertain paternity of the baby but the result of DNA was again in 'negative'. Later on, police declared the appellant and his brother innocent and submitted report under section 173 of the Act V of 1898 in the court of learned Additional Sessions Judge-I, Jampur where respondent No.2- Noor Muhammad had already filed private complaint of 'zina' with the apprehension of police being in connivance with the accused by not recording his statement correctly being illiterate, obtained his thumb impression on blank paper. The learned trial court framed charge, in the private complaint, against the appellant and his brother and recorded evidence of the respondents, who appeared as PW-1 and PW-2. At the end of trial, the appellant and his brother were acquitted of the charge. After acquittal, the appellant Muhammad Kashif (PW-1) alongwith his brother Rashid Ali (PW-3) and Haji Piyara (PW-2) went to the respondents, pleaded their innocence and asked the respondents not to put blame of 'zina' upon them, but the respondents did not accept their plea and kept on leveling false allegation of 'zind' hence, committed offence under section 7 of the Ordinance VIII of 1979.

2. The learned trial Court after recording cursory statements of the complainant-Muhammad Kashif, Haji Piyara (PW-2) and Rashid Ali (PW-3), summoned the respondents to face trial.

3. Denial on the part of the respondents to admit the accusation contained in the charge resulted in commencement of trial and production of 03 witnesses i.e. appellant-Muhammad Kashif, Haji Piyara (PW-2) and Rashid Ali (PW-3) brother of the appellant. In addition to this, Sardar Ameer Bux Khan Mastoi Advocate while appearing before the court tendered attested copy of private complaint titled "Noor Muhammad v. Muhammad Kashif, etc." as Ex.PB, attested copy of MLC of Tahira Bibi along with police docket as Ex.PC, attested copy of statement of Noor Muhammad before police as Ex.PD, attested copy of FIR No.202/2016 as Ex.PE, attested copy of rough site plan of the place of occurrence as Ex.PF, attested copy of Forensic DNA Analysis Report of P.F.S.A (four pages) as Ex.PG, attested copy of MLC of Tahira Bibi as Ex.PH, attested copy of application for DNA test as Ex.PI, attested copy of list of witnesses and their statements in private complaint "Noor Muhammad v. Kashif etc." (three pages) as Ex.PJ, attested copy of rough site plan as Ex.PK, attested copy of cursory statements of PWs (three pages) as Ex.PL, attested copy of charge sheet as Ex.PM, attested copy of statements of PWs (eight pages) as Ex.PN, attested copy of statements under section 342 Cr.P.C. (six pages) as Ex.PO, attested copy of order sheet (eight pages) as Ex.PQ, attested copy of judgment dated 08.11.2018 (ten pages) as Ex.PR and attested copy of reports under section 173 Cr.P.C. along with order sheet (12 pages) as Ex.PS.

4. The respondents while explaining the incriminating evidence put to them in their statements under section 342 of the Act V of 1898, denied their involvement of false accusation, attributed malice due to grudge of lodging crime report No.202/2016 by the respondent-Noor Muhammad. The respondents also attributed collusion of staff of P.F.S.A. with the appellant and his brother, who managed 'negative' report of DNA which resulted in their acquittal and filing the private complaint of 'qazf'.

5. The learned Additional Sessions Judge-I, Jampur, through judgment dated 29th October, 2022, putting question mark about the veracity of the evidence led by prosecution recorded acquittal in favour of the respondents, by holding as under:

"From the perusal of the aforesaid judgment passed by the learned ASJ, Jam pur, it appears that the learned ASJ, Jampur after thorough trial arrived at the conclusion that the prosecution has failed to prove its case against the accused persons of the aforesaid private complaint beyond any shadow of reasonable doubt, therefore, they were acquitted of the charge by extending the benefit of doubt. Here the question arises as to whether acquittal of the complainant and his brother Rashid Ali was based on clear cut findings of the learned trial Court that the said case was lodged by the complainant Noor Muhammad (accused in this case) with mala fide intention, deliberately with concoction of the facts or the learned trial Court in its findings has declared the complainant and victim (accused in this case) as liars. There is no clear cut finding of the learned ASJ, Jampur that the aforesaid case was based on clear cut falsification. There is distinction between allegation of Zina made by a stranger and by the victim. Where the allegation of Zina is levelled by the victim herself it is to be seen that when she herself is the victim of the case wherefrom she would bring four witnesses to support her version. Moreover, it has been held in Qazaf ordinance that making complaint to the Authorized Person falls within the exception of the Qazaf Ordinance. In the present case, the accused persons alleged that they had made complaint before the Authorized Person in good faith and there was no mala fide on their part. Moreover, no mala fide or ulterior motive or ill will of the accused persons Noor Muhammad and Mst. Tahira Bibi in registration of criminal case and filing the private complaint against complainant Muhammad Kashif and his brother Rashid Ali has been established on record. Mst. Tahira Bibi (accused in this cse was subjected to continuous rape by Muhammad Kashif (complainant of this case) and his brother Rashid Ali (PW in this case). So, merely failure of the complainant and the victim (accused in this case) to prove their case by not producing cogent and confidence inspiring evidence does not render the complainant and the victim to punishment under the Qazaf Ordinance, 1979."

1. Contention of the learned Counsel for the appellant that respondents, in order to get 'Chatti' from the appellant and his brother, lodged crime report alleging false accusation of 'zina' committed by the appellant and his brother with Mst. Tahira Bibi-Respondent No.3 and during investigation DNA of the respondent-Tahira Bibi and appellant-Muhammad Kashif and his brother Rashid Ali was conducted, the report of which was in 'negative', resulting in cancellation of crime report. He also submitted that after giving birth to a baby by respondent-Mst. Tahira Bibi, DNA tests of the baby, Mst. Tahira Bibi, Muhammad Kashif and his brother Rashid Ali were again conducted but again its report came 'negative'.

Continuing the arguments, it was maintained that due to registration of false crime report and subsequent private complaint, the good image of the appellant and his brother has been tarnished in the locality.

Contended that appellant and his witnesses while recording their evidence have proved the offence of 'qazf' committed by the respondents but the judgment of learned trial court is result of misreading and non-reading of evidence and as such cannot hold the field.

1. Controverting the arguments, learned Counsel for the respondents maintained that the respondent No.2 had lodged crime report and subsequent private complaint, which was not aimed at tarnishing good repute of the appellant and his brother and their case fell within the second exception of Section 3 of Ordinance VIII of 1979.

Repudiating the motive behind the false accusation to defame and get "Chatti" (reparation) from the appellant, the learned Counsel submitted that appellant could not prove it during the trial.

Making reference to the DNA test, it was maintained that the appellant and his brother being influential, in collusion with the staff of P.F.S.A. got managed 'negative' DNA report in and in order to take revenge they have filed the false case of 'qazf', which was rightly dismissed by the learned trial Court.

He also argued that the appellant and his brother Rashid Ali were acquitted due to benefit of doubt. Similarly, the present respondents were acquitted on the basis of benefit of doubt. He maintained that acquittal of the appellant and his brother was not upon clear cut findings of the Court based on falsification of evidence. In support of his arguments, he placed his reliance on the case law reported as "Nasrullah v. The State and 4 others" (2016 PCr.LJ 979),Shahzad alias Shaddu and others v. The State (2002 SCMIR 1009), "Rana Shahbaz Ahmed and 2 others v. The State" (2002 SCMR 303), "Abdul Ghani v. The State through P.G. Balochistan and another" (2022 SCMR 544) and "Azeem Khan and another v. Mujahid Khan" (2016 SCMR 274).

1. On the other hand, the learned Law Officer while supporting judgment of learned trial Court argued that the respondent No.2 filed private complaint of 'zina' against the appellant and his brother after having been declared innocent by the police during investigation in crime report No.202/2016. Further by adverting to charge framed by the learned trial Court, the learned Law Officer asserted that learned trial Court wrongly framed charge on the basis of crime report in the private complaint of appellant-Muhammad Kashif, whereas it completely ignored that appellant and his brother were proceeded on the basis of private complaint filed by respondent No.2. He also asserted that the appellant-Muhammad Kashif in private complaint of 'qazf' had concealed facts of private complaint filed by respondent No.2 instead narrated facts of lodging of crime report by the respondent No.2.

It is contended that appellant neither produced nor relied upon the documents of crime report No. 202/2016. It was also contended that appellant could not produce direct evidence of the offence of 'qazf' committed by the respondents as per requirement of Section 6 (1) (c) of the Ordinance VIII of 1979 read with Article 117 Qanun-e-Shahadat, Order, 1984. He further contended that Bashir Ahmed, ASI who had recorded complaint of 'zina' was not produced during the trial and the appellant, PW-2 and PW-3 while recording evidence did not mention date, time and place of occurrence of commission of offence of 'qazf' nor made reference of the actual words of 'zina' which imputation was leveled by the respondents against the appellant, failure to do so is fatal to the case of 'qazf'. He maintained that the learned trial Court has rightly acquitted the respondents from the charge. In support of his arguments he relied upon the case law reported in "Maj.Gen. (Retd.) Abdul Aziz and 2 others v. Mst. Kanwal Rabbani and another" (1996 PCr.LJ 2030).

1. Conscious consideration has been given to the arguments advanced by the parties while examining the record.

2. Before examining the moot point, one has to dilate upon the definitions of "Qazf". The expression "Qazf" has been defined in Section 3 of Ordinance VIII of 1979 which is reproduced for analysis:-

Sec.3. Qazf: Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes an imputation of 'zina' concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation, or hurt the feelings, of such person, is said except in the cases hereinafter excepted, to commit 'qazt'.

Explanation 1:

It may amount to 'qazf' to impute 'zina' to a deceased person, if the imputation would harm the reputation, or hurt the feelings, of that person if living, and is harmful to the feelings of his family or other near relatives.

Explanation 2:

An imputation in the form of an alternative or expressed ironically, may amount to 'qazf'.

First Exception (Imputation of truth which public good requires to be made or published): It is not 'qazf' to impute 'zina' to any person if the imputation be true and made or published for the public good. Whether or not it is for the public good is a question of fact.

Second exception (accusation preferred in good faith to authorized person): Save in the cases hereinafter mentioned, it is not 'qazf' to refer in good faith an accusation of 'zina' against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation:

(a) a complainant makes an accusation of 'zina' against another person in a Court, but fails to produce four witnesses in support thereof before the Court.

(b) according to the finding of the Court, a witness has given false evidence of the commission of 'zina' or 'zina bil-jabr;

(c) according to the finding of the Court, a. complainant has made a false accusation of 'zina-bil-jabr'.

(Underlines are ours)

Mala fide intention is an essential ingredient to prove offence of Qazf and in absence of such intention to harm the reputation, or hurt the feelings, of such person; the offence of 'qazf' as mentioned in section 3 of Ordinance VIII of 1979 is not clearly made out. During trial the appellant was not able to prove the motive of demanding 'Chatti' as such they defaulted in establishing motive.

To prove the offence of 'qazf' the prosecution must indicate that imputation of 'zina' was made with intention to harm the person or his reputation by imputing such accusation of 'zina'. In the present case the intention to harm the reputation of appellant and his brother as well as getting "chatti" has not been proved during trial, so in absence of such evidence indicating intention to harm reputation of the appellant and his brother prosecution has miserably failed to prove its case. Reliance is placed on the dictum laid down in "Sarfraz and another v. The State" (2023 SCMR 670) and "Ali Asghar alias Aksar v. The State" (2023 SCMR 596).

"It is now well established that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence. Otherwise, the said motive might be considered a mitigating circumstance in favour of an accused. However, where no motive is alleged, the capital punishment can be awarded keeping in view the evidence led by the prosecution,"

Nevertheless, failure of the respondents to get their stance established before the learned trial Court would not be sufficient to prove the charge of qazf. The fact has to be appreciated keeping in view the well established proposition of law that prosecution has to prove its case against the respondents beyond the shadow of doubt. Reliance is placed on the case law in "Maqsood Alam and another v. The State and others" (2024 SCMR 156). Relevant portion of the case law is reproduced here in below:-

"Motive has also rightly been disbelieved by the learned High Court by holding that it is a vaguely formulated motive and no evidence in support of the same has been placed on record."

So far as the production of four witnesses in support of accusation of 'zina' according to clause (a) to second exception of Section 3 of the Ordinance VIII of 1979 is concerned, the victim being minor girl of 14/15, years could not produce four witnesses of the 'zina bil jabr' but it is well settled that solitary statement of victim is sufficient to record conviction of an accused for an offence of zina-bil-jabr. Rule of law enunciated in "Shahid Maqsood Siddiqui v. The State" (2002 YLR 2949), "Shahzad alias Shaddu and others v. The State" (2002 SCMR 1009) and "Rana Shahbaz Ahmed and 2 othersv. The State" (2002 SCMR 303). In the light of above dictums the acquittal of appellant/accused in case of 'zina-bil-jabr' on basis of benefit of doubt does not establish the involvement of the respondents Nos.2 and 3 for the offence of 'qazf'.

Clause (b) of Second Exception to Section 3 of Ordinance VIII of 1979 concerns a person held for the Offence of Qazf if a witness gives false evidence of commission of 'zina' in court or according to findings of the court false accusation of zina-bil-jabr was leveled. The learned trial Court while deciding the complaint filed by respondent No.2 in its judgment has not given any finding regarding giving false evidence by the witnesses/respondents.

Similarly, clause (c) of Second Exception to Section 3 of Ordinance VIII of 1979 also concerns the complainant who makes false accusation of 'zina-bil-jabr' but in the complaint case filed by the respondents, the learned trial court has not given any finding that complainant/Noor Muhammad-Respondent No.2 has made false accusation of 'zina-bil jabr', rather the appellant and his brother were acquitted while extending them benefit of doubt (See: "Bakht Ali and another v. The State" (1993 PCr.LJ 1872) (Federal Shariat Court). The relevant portion of case law is reproduced as under:

"The main question of concern in this case to be decided is the fact whether an accusation of Zina-bil-Jabr in a Zina case by any witness levelled before any person who has lawful authority over that person with respect to the subject-matter of accusation amounts to Qazf. It seems pertinent here to mention that the injunctions of Islam regarding punishment for Hadd or the Offence of Qazf have been given in Sura Noor verse 4 and the trend of that verse indicates that mere failure of a complainant to prove his allegations in Court does not make the witnesses of the said offence liable to Qazf punishment unless it is proved that they had mala fidely concocted a false accusation".

(Underlines are for Emphasis)

1. The respondent-Noor Muhammad is admittedly complainant of FIR (Ex.PE), wherein he alleged that his daughter Tahira Bibi respondent No.3, who was 14/15 years of age, used to go to the house of appellant for reciting Holy Quran, where she was subjected to 'zina bil jabr' by the appellant while his brother Rashid Ali performing duty as guard. This allegation of 'zina' was narrated by respondent-Noor Muhammad to ASI Bashir Ahmed who lodged the crime report and at the time narrating allegation of 'zina' to ASI Bashir Ahmed none from the side of appellant, who witnessed the imputation of 'zina' from the mouth of respondent-Noor Muhammad were present enabling them to give direct evidence of offence of 'qazf' liable to Hadd. Apart from this, the said Bashir Ahmed ASI, who was natural witness of imputation of 'qazf' before whom allegation of 'zina' was levelled, was not produced as prosecution witness in the complaint case of 'qazf' filed by the appellant.

Keeping in view the absence of appellant, Haji Piyara (PW-2) and Rashid All (PW-3) at the first time of leveling allegation of 'zina' by respondent-Noor Muhammad before Bashir Ahmed ASI, their evidence will be considered as hearsay and as such cannot be relied upon.

1. Negative report of the DNA was also relied upon on behalf of appellant but that too by itself would not place the case of prosecution on better footing in order to make interference in the conclusion assailed. In the light of discussion elaborated above, DNA report does not give any support to the case of appellant, without solid corroborative evidence. Reliance is placed on the dictum laid down in case of "Atta-ul-Mustafa v. The State and another" (2023 SCMR 1698).

"Even otherwise, the DNA report cannot be treated as primary evidence and can only be relied upon for the purposes of corroboration"

Mere negative DNA report, on whose basis acquittal was recorded, cannot be made basis for punishment for the offence of 'qazf' liable to Hadd. The prosecution has to prove its own case through direct evidence as contemplated under Article 71 of the Qanun-e-Shahadat, Order, 1984 which if read in conjunction with Section 6 (1) (c) of Ordinance VIII of 1979 provide strict parameters of `tazkiyah al-shuhood' for competency of witnesses to give direct evidence of the commission of 'qazf' which in this case is missing. The relevant section is reproduced hereinbelow:

"6. Proof of qazf liable to hadd (1) Proof of qazf liable to hadd shall be in one of the following forms, namely:

(a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence;

(b) the accused commits 'qazf' in the presence of the Court; and

(c) at least two Muslim adult male witnesses, other than the victim of the qazf, about whom the Court is satisfied, having regard to the requirements of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins (kabair), give direct evidence of the commission of qazf:"

(Underlines are for emphasis)

1. We have also noted the contention of learned Law Officer that proper charge was not framed by the learned trial Court as it did not advert to the factum that the acquittal of the appellant and his brother Rashid Ali was not on the basis of the crime report No.202/2016 dated 11.07.2016, under section 376 (i) of the Code, registered at Police Station Muhammadpur, rather the acquittal of appellant and his brother was on the basis of private complaint filed by the respondent No.2. It is also to be noted that at the time of framing of charge no such objection was raised to rectify the charge.

2. Another infirmity which we have observed in the cursory statements of the appellant, Haji Piyara and Rashid Ali (C.W.1, C.W.2 and C.W.3) is the omission to mention date, time and venue of the occurrence where the offence of "qazf" was alleged to have been committed by the respondents.

The said infirmity is also reflected in their stereotype statements while appearing as PW-1, PW-2 and PW-3. Since, there is an omission on the part of the witnesses to highlight the time, date and place of occurrence in their deposition as a witness, therefore, their evidence cannot be relied upon.

As such omission to disclose time, date and place of occurrence is significant, going to the root of the case, putting a serious dent to the case of prosecution and by itself is sufficient to brush aside the prosecution evidence.

Disclosure of time/date and place of occurrence has been stressed in section 222 of Act V of 1898 which is reproduced below:-

222. Particulars as to time, place and person: (1) The charge, shall contain such particulars as to the time and place of the alleged offiffice, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

Bare perusal of above referred sectiop, suggests that mentioning of time/ date and place of occurrence is essential ingredient to constitute an offence which has to be proved by the prosecution but this aspect is missing in the present case, hence sufficient to discard the prosecution evidence.

1. We have gone through the statements of the appellant and his witnesses while appearing as PW-1 to PW-3 and feel no hesitation to observe that right to cross examine the witnesses was closed on 13.04.2022 and subsequently application of the respondents to recall the said order dated 13.04.2022 was also dismissed on 24.05.2022. Despite that prosecution could not make out its case for awarding punishment to the respondents as there is no mention of time, date and place of occurrence of the offence and reference of word to word imputation of 'zina' uttered by the respondents necessary to constitute offence of 'qazf' as per Section 3 of the Ordinance VIII of 1979.

2. Undeniably, the criminal justice is casting conclusive duty upon the prosecution to prove its case beyond the shadow of reasonable doubt. Article 117 of the Order is referred to as the "legal" burden of proof, which can never be shifted to the accused, unless the legislature by express terms commands otherwise. Ratio expounded in: "Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another" (PLD 2020 SC 146) relevant portion of the case law is as under:-

"53. The law on the burden of proof, as provided in Article 117 of the Order, mandate the prosecution to prove, and that too, beyond any doubt, the guilt of the accused for the commission of the crime for which he is charged."

2024 M L D 1313

[Supreme Appellate Court Gilgit-Baltistan (Gilgit)]

Before Sardar Muhammad Shamim Khan, C.J

Moutbar Khan and others---Petitioners

Versus

The State---Respondent

Criminal Appeal No. 10 of 2024, heard on 3rd May, 2024.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302(b), 324, 114 & 109---Qatl-i-amd, attempt to commit qatl-i-amd, abettor present at the time of offence, abetment---Bail, grant of---Further inquiry---Prosecution case was that on the abetment of accused-petitioners, who were present at the time of occurrence, the co-accused committed murder of the son of complainant and caused firearm injuries to another person---Record showed that petitioners were empty handed at the time of occurrence and there was no allegation against them that either they caused any injury on the person of deceased or on the person of injured witness, rather, in the FIR only presence of the petitioners were shown at the spot and that instant occurrence was committed by co-accused at their abetment---No evidence of abetment had been mentioned by the complainant in the FIR---According to investigation of police, the petitioners were found guilty of abetment yet during investigation the police did not collect any cogent evidence in order to establish that petitioners conspired with their co-accused, instigated their co-accused or aided their co-accused for the commission of murder of the deceased or causing injury on the person of the injured witness and that fact had been admitted by the prosecution---Admittedly petitioners were real brothers of the co-accused who was principal accused in the case and previous enmity was also pending between the parties, therefore, prima facie, it seemed that complainant had widened the net and implicated the petitioners in the instant case on account of their relationship with the principal accused---Keeping in view the facts and circumstances of the case, the case of the petitioners came within the ambit of further inquiry---Petitioners were behind bars since their arrest and were no more required by the police for the purpose of further investigation---No useful purpose would be served by keeping the petitioners in jail for an indefinite period---Petition was accepted and accused-petitioners were admitted to bail, in circumstances.

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

----S. 497---Bail order---Observations of Court---Scope---Observations made in a bail order are tentative in nature and should not prejudice the case of either party at trial stage.

Aurangzeb Khan, Advocate for Petitioners.

Mir Muhammad, Prosecutor General for the State.

Date of hearing: 3rd May, 2024.

Judgment

Sardar Muhammad Shamim Khan, C.J.---Through instant Criminal Appeal the petitioners namely Moutbar Khan and Alamdar Hussain seek post arrest bail in a case registered against them vide FIR No. 196 of 2023 dated 09.10.2023 offences under sections 302, 324, 114 & 109 P.P.C. registered at police station Jutial District Gilgit.

1. According to FIR, on 09.10.2023 at about 01:50 P.M, Adnan Hussain accused committed the murder of Asim Abbas son of the complainant by inflicting fire-arms injuries on his person. It has further been alleged in the FIR that on account of firing made by Adnan Hussain accused, Akash Hussain P.W also sustained bullet injury on his head. It has also been alleged in the FIR that the Moutbar Khan and Alamdar Hussain petitioners were present at the place of occurrence at the relevant time and instant occurrence was committed by Adnan Hussain co-accused at their (petitioners) abetment. Hence instant FIR was registered.

2. Learned counsel for the petitioners contended that petitioners have falsely been implicated in the instant case on the basis of mala fides; that there was no allegation against the petitioners that either they caused any injury on the person of the deceased or on the person of the injured P.W namely Akash Hussain; that as per allegation the petitioners were present at the spot and instant occurrence was committed by Adnan Hussain co-accused at their abetment but no evidence of abetment is available on the record against the petitioners; that although the petitioners are nominated in the FIR yet no specific role has been attributed to them at time of occurrence, rather only presence of the petitioners with empty hands at the place of occurrence was shown by the complainant in the FIR; that nothing was recovered from the possession of the petitioners during investigation ; that petitioners are behind the bars since their arrest and are no more required by the police for the purpose of further investigation. Thus, it is submitted that by accepting instant appeal, the petitioners may be admitted to post arrest bail.

2024 M L D 1326

[Supreme Appellate Court Gilgit-Baltistan (Gilgit)]

Before Sardar Muhammad Shamim Khan, C.J.

Ghulam Shehzad Agha---Appellant

Versus

Khalid Khursheed and others---Respondents

Civil Appeal No. 82 of 2023, in CPLA No. 269 of 2023, decided on 25th April, 2024.

Elections Act (XXXII of 2017)----

----Ss.231 & 232(2)---Anti-Terrorism Act (XXXVII of 1997), S.11-EE & Fourth Schedule---Constitution of Pakistan, Arts. 63(1)(g) & 63(1)(h)---Government of Gilgit-Baltistan Order, 2018, Art. 51(3)---Election dispute---Disqualification from seat of Gilgit-Baltistan Assembly---Duration---Petitioner assaild disqualification of respondent by Chief Court from membership of Gilgit-Baltistan Assembly for remaining period of term of Assembly on account of his name placed in Fourth Schedule to Anti-Terrorism Act, 1997---Validity---Disqualifying respondent from the seat of Gilgit-Baltistan Assembly for period of remaining term of Legislative Assembly did not comply with mandatory provision of S.232(2) of Elections Act, 2017 [as amended vide Elections (Amendment) Act, 2023]---Surepme Appellate Court set aside observation of Chief Court pertaining to disqualification of respondent from the seat of Gilgit-Baltistan Assembly for remaining term of Legislative Assembly, as period of disqualification of respondent was for five years as per spirit of S.232(2) of Elections Act, 2017 [as amended vide Elections (Amendment) Act, 2023]---Mere placing of name of respondent in Fourth Schedule to Anti-Terrorism Act, 1997 could not be equated with conviction mentioned in Art. 63(1)(g) and (h) of Constitution of Pakistan---Conviction was either an imprisonment or fine which was imposed after framing of charge, recording of evidence of parties and also recording stance of accused in his defence---Order passed under S. 11-EE of Anti-Terrorism Act, 1997 could not be equated with conviction---On mere basis of inclusion of name of petitioner in Fourth Schedule to Anti-Terrorism Act, 1997, it could not be held that he had worked against integrity of country or ideology of Pakistan---This was no ground for his disqualification under S.231 of Elections Act, 2017---Supreme Appellate Court set aside observation of Chief Court, as no act of petitioner had come within the ambit of corrupt practices---Appeal was allowed accordingly.

Sami Ullah Baloch v. Abdul Karim Nausherwani PLD 2018 SC 405; Mian Najeeb-ud-Din Owaisi v. Aamir Yar and 7 others 2011 SCMR 180; Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others 2012 SCMR 366 and Hamza Rasheed Khan and another v. Election Appellate Tribunal, Lahore High Court, Lahore and others PLD 2024 SC 256 rel.

Amjad Hussain, Senior Advocate for Petitioner.

Asadullah Khan, Senior Advocate for Respondent No. 1.

Muhammad Nazir, A.G. G.B for Government of G.B.

Arif Nazir, Advocate Legal Advisor, Yasir Akhtar, Asisstant Legal Advisor and Khurshid Ahmed, Deputy Election Commissioner for Election Commission GB.

Date of hearing: 19th April, 2024.

Judgment

Sardar Muhammad Shamim Khan, C.J.--- Through the instant Civil Appeal the petitioner namely Ghulam Shehzad Agha has challenged the findings of learned Chief Court passed in para No.13 and 14 of the judgment dated 04.07.2023 whereby protection/immunity was granted to respondent No.1 (Khalid Khurshid) from the application of penal/ criminal proceedings against him.The petitioner has further called in question the direction given by the learned Chief Court to Speaker, G.B Assembly to forward a Reference against the petitioner to the Chief Election Commissioner in terms of Article 51 sub-Article 3 of the Government of Gilgit-Baltistan Order, 2018 for his disqualification from the membership of G.B Assembly on account of being placed his name under Schedule IV of ATA 1997.

1. Brief facts necessary for disposal of instant Civil Petition are that the petitioner had filed writ petition No. 277/2023 before learned Chief Court wherein he challenged the qualification of respondent No.1 (Khalid Khursheed) to be the member of G.B Assembly on the ground of obtaining, retaining and using forged / bogus degree of LLB at different forums, filing of false affidavit in GB Bar Council and Higher Education Commission and prayed that the respondent No. 1 may be disqualified to be Member of the G.B Assembly under Article 62(i) (f) and Article 63 of the Constitution of Pakistan read with Article 50(ii) (m) of Government of Gilgit-Baltistan Order, 2018 and section 231 of Elections Act, 2017. Vide impugned judgment dated 04.07.2023 passed in Writ Petition No. 277/2023, learned Chief Court declared the respondent No. 1 (Khalid Khursheed) disqualified from being Member of GB Assembly. However, in the same impugned judgment, learned Chief Court granted protection/immunity in favour of the respondent No. 1 from the application of criminal/penal proceedings as well as issued direction to Speaker GB Assembly for forwarding a Reference to Chief Election Commissioner G.B for proceedings against petitioner (Ghulam Shehzad Agha) in terms of Article 51 sub-Article 3 of the Government of Gilgit-Baltistan Order, 2018 on account of concealment of fact that his name was included in Schedule 4th of ATA, 1997. The validity and authenticity of remarks/observations pertaining to immunity of respondent No.1 from the application of penal/criminal proceedings against him as well as disqualification of the petitioner from the membership of G.B Assembly on account of placing his name under 4th Schedule of ATA, 1997 passed in the aforementioned judgment by learned Chief Court has been called in question through the instant Civil Petition.

2. Learned counsel for the petitioner contended that petitioner filed writ petition No.277 of 2023 before learned Chief Court seeking disqualification of respondent No.1 from the membership of G.B Assembly on the ground that he had obtained a bogus/forged degree of LLB; that vide impugned judgment dated 04.07.2023, learned Chief Court accepted the aforesaid writ petition and disqualified the respondent No.1 from the seat of G.B Assembly for the remaining term of G.B Legislative Assembly on account of retaining and using forged degree of LLB at different forums but the learned Chief Court while passing the judgment in para No.13 gave protection/immunity to respondent No.1 from the application of penal/criminal proceedings against him without any lawful justification; that in para No.13 of the impugned judgment, it was categorically held by learned Chief Court that a person who makes a false statement concerning his academic qualifications comes within the ambit of corrupt practices; that learned Chief Court was not empowered to give immunity from the application of criminal proceedings against the respondent No.1 as per mandate of section 78 of the Representation of the People Act 1976. It has further been contended by learned counsel for the petitioner that the observation of learned Chief Court pertaining to disqualification of respondent No.1 from the seat of G.B Assembly only for the remaining term of G.B Legislative Assembly is against the law in view of principle settled by Hon'ble Supreme Court of Pakistan in the case of Sami Ullah Baloch v. Abdul Karim Nausherwani (PLD 2018 SC 405) wherein it has been held that - when Article 62(1) (f) of the Constitution of Islamic Republic of Pakistan 1973 is attracted, the disqualification is for life time. It was further argued by learned counsel for the petitioner that learned Chief Court in para No.14 of the judgment also opined that petitioner himself is a proscribed person under section 11-EE of the ATA, 1997 and his name is placed in 4th schedule of the said Act but this fact was not disclosed by the petitioner at the time of contesting the election and filing of aforesaid writ petition before the Court, therefore, he is guilty of concealment of facts and that he suffers from disqualification to remain as member of the Gilgit Baltistan Assembly under the provisions of Article 51(3) of the G.B Order 2018; that this observation of the learned Chief Court is contrary to the provisions of sections 231 and 232 of the Elections Act, 2017 as neither the petitioner has been convicted by a court of competent jurisdiction nor he has been found guilty of any corrupt or illegal practice by the tribunal; that mere placing of name of the petitioner in 4th schedule under section 11-EE of the Anti-Terrorism Act. 1997 by the executive authorities does not debar him from the membership of G.B Assembly unless and until the conviction is recorded against him. Thus, it is submitted that by accepting the instant civil petition, the impugned remarks passed by the learned Chief Court in the judgment whereby protection/immunity was granted to respondent No. 1 from the application of penal/criminal proceedings against him may be expunged and that disqualification of respondent No.1 regarding the remaining term of G.B Assembly may be enhanced to life time and finding of the learned Chief Court whereby direction was issued to Speaker G.B Assembly for forwarding a reference to Chief Election Commissioner in terms of Article 51 Sub-Article 3 of the Government of Gilgit Baltistan Order 2018 for his disqualification from the membership of G.B assembly on account of placing his name under 4th Schedule of ATA, 1997 may also be set aside.

3. On the other hand, learned counsel for the respondent No. 1 has vehemently opposed the instant civil petition on the grounds that a civil suit regarding declaration as to genuineness or otherwise of Law Degree of respondent No. 1 (Khalid Khursheed) is pending adjudication before the learned Civil Court, Islamabad; therefore, unless a declaration to that effect is passed by learned Civil Court Islamabad, no penal/criminal proceedings can be initiated against respondent No. 1; therefore, the learned Chief Court, G.B has rightly granted immunity in favor of respondent No. 1 from the application of criminal/ penal proceedings against him. It has further been contended by learned counsel for the respondent that the period of disqualification of the respondent is five years as per section 232(2) of the Elections Act, 2017 which provision has been enacted through Elections (amendment) Act, 2023, therefore, the stance of the petitioner regarding disqualification of the respondent for life time is totally illegal ; It has further been contended by learned counsel for the respondent that the petitioner is a member of proscribed organization and his name has been entered in the 4th Schedule under section 11-EE but he concealed this material fact from the learned Chief Court as well as at the time of contesting election for the seat of G.B Assembly therefore, learned Chief Court has rightly passed the impugned remarks against the petitioner and directed the Speaker G.B Assembly to foorward a reference against the petitioner to the Chief Election Commissioner in terms of Article 51 Sub-Article 3 of the Government of Gilgit Baltistan Order, 2018 for his disqualification from the membership of G.B Assembly under section 231 of the Elections Act, 2017 on account of placing his name under 4th Schedule of ATA, 1997. Thus, it is submitted that the instant civil petition is liable to be dismissed.

4. Arguments heard. Record perused.

5. It has been noticed that Ghulam Shehzad Agha petitioner filed writ petition No.277 of 2023 before learned Chief Court seeking disqualification of respondent No.1 from the membership of G.B Assembly on the ground that he had obtained a bogus/forged degree of LLB. Vide impugned judgment dated 04.07.2023, learned Chief Court accepted the aforesaid writ petition and disqualified the respondent No.1 from the seat of G.B Assembly in terms of section 231 of the Elections Act, 2017 for the remaining term of G.B Legislative Assembly on account of retaining and using forged degree of LLB at different forums. Learned Chief Court while passing the judgment in para No.13 gave protection/immunity to respondent No.1 from the application of penal /criminal proceedings against him on account of pendency of civil suit filed by the respondent No.1 before the court of learned Civil Judge Islamabad. Learned Chief Court in para No.14 of the judgment also held that petitioner himself is a proscribed person under section 11-EE of the ATA, 1997 and his name is included in 4th schedule of the said Act by the Goverment but this fact was not disclosed by the petitioner at the time of contesting the election and filing the aforesaid writ petition before the Court, therefore, he is guilty of concealment of facts which prima facie establishes his disqualification under section 231 of the Elections Act, 2017. The main thrust of arguments of learned counsel for the petitioner was that learned Chief Court while passing the impugned judgment was not competent to give immunity to respondent No.1 from the application of penal/criminal proceedings, if law otherwise permits such action and that disqualification of the respondent No.1 only for the remaining term of G,B Assembly is contrary to the law because the law provides the disqualification of the respondent No.1 for life time and further that petitioner is not a convicted offender and mere placing his name under 4th schedule of ATA, 1997 does not debar him from disqualification from the membership of G.B Assembly unless and until the conviction is recorded against him.

6. Perusal of record reveals that Khalid Khurshid respondent No.1 was disqualified from the seat of G.B Assembly in terms of section 231 of the Elections Act, 2017 on the basis of retaining and using forged degree of LLB at different forums. This finding of the learned Chief Court is based on documentary evidence tendered by the petitioner as well as Higher Education Commission. The learned Chief Court while passing the impugned judgment categorically held that respondent No.1 made a false statement regarding his academic qualifications. Accordingly, he lacked the requisite qualification of being sagacious, righteous, non-profligate, honest and amen as prescribed in Article 62(1)(f) of the Constitution of Pakistan 1973,therefore, he comes within the ambit of corrupt practices and a person guilty of corrupt practices should be disqualified from membership of legislative assembly. Section 78 of Representation of the People Act, 1976 deals with Corrupt Practices, offence, penalty and procedure. The making of a false statement or submitting a false or incorrect declaration in a nomination paper filed by a candidate also amounts to the offence of 'corrupt practices' under section 78(3) (d) of the Representation of the People Act,1976. In the cases wherein returned candidates had made a false statement in nomination papers about their education qualification, the Hon'ble Supreme Court of Pakistan has directed action to the Election Commission under section 78 of Representation of the People Act the 1976. Reference in this regard placed on the case reported as Mian Najeeb-ud-Din Owaisi v. Aamir Yar and 7 others (2011 SCMR 180) wherein the Hon'ble Supreme Court of Pakistan observed as under:-

"S. 78-Constittion of Pakistan, Arts. 62 & 63 Corrupt practices---Election of the returned candidate to the parliament was challenged on the ground that he had procured a bogus B.A. degree and on the strength of the said bogus degree, allegedly issued by the University of Balochistan, had successfully contested the election---Validity Held, that person who offered himself for an election for the seat of the Parliament or a Provincial Assembly so to represent electors of his own constituency was required to fulfill the qualification as laid down under Art. 62 of the Constitution and that he shall not suffer from any disqualification as envisaged under Art. 63 of the Constitution---In view of the facts and circumstances of the present case, the matter was required to be dealt with by Chief Election Commissioner in accordance with the provisions of Section 78, Representation of the People Act, 1976---Supreme Court directed the Chief Election Commissioner to proceed accordingly against the candidate following the observations made in the present judgment.

Furthermore in the case reported as Ghulam Akbar Lang, v. Dewan Ashiq Hussain Bukhari and others (2012 SCMR 366) it was categorically held by the august Supreme Court of Pakistan that disqualification clause under section 99(cc) of Representation of the People Act, 1976 entails penalty which is attracted only when it is established that the degree secured by a returned candidate was forged one. So far as the contention of learned counsel for the respondent No.1 that petitioner has filed the suit for Declaration pertaining to alleged fake decree of LLB against Higher Education Commission, (HEC) which is pending adjudication before the court of learned Senior Civil Judge Islamabad, therefore, unless a declaration to that effect is passed by learned Civil Court Islamabad, no penal/criminal proceedings can be initiated against respondent No. 1 is concerned , the same is without force because criminal as well as civil proceedings can run side by side and that on account of mere pendency of civil suit, the respondent No.1 is not entitled for protection/immunity from the application of penal/criminal proceedings against him . The Court can interpret the law but the court is not empowered to provide protection to any citizen from initiating penal/criminal proceedings if otherwise law permits the same. Keeping in view the facts and circumstances of the case and while seeking guidance from the aforementioned case laws, I am of the considered view that remarks/ findings passed by learned Chief Court in para No.13 of the judgment are not justified and same are against the law and facts on record. The said findings/remarks of the learned Chief Court are hereby reproduced as under:-

"On account of pendency of Civil Suit filed by the respondent in Civil Court Islamabad he is declared exempted from application of any other penal action concerning this particular matter".

In view of the matter the aforesaid findings/remarks are hereby expunged from the judgment of the learned Chief Court.

1. So-far-as the observation of learned Chief Court pertaining to disqualification of respondent No.1 from the seat of G.B Assembly only for the remaining term of G.B Assembly is concerned, it has been noticed that this observation of the learned Chief Court is contrary to the provision of section 232(2) of the Elections (Amendment) Act, 2023, promulgated on 26.06.2023. The aforesaid provision of section is reproduced as under for the sake of ready reference:-

232(2) Qualifications and disqualifications:

Notwithstanding anything contained in any other provisions of this Act, and other law for the time being in force and judgment, order or decree of any court, including the Supreme Court and a High Court, the disqualification of a person to be elected, chosen or to remain as a member of the Majlis-e-Shoora (parliament) or a Provincial Assembly under paragraph (f) of clause (1) of Article 62 of the Constitution shall be for a period not exceeding five years from the declaration by the court of law in that regard and such declaration shall be subject to the due process of law.

The aforesaid provision of section clearly prescribes a period of five years for the disqualification incurred by any judgment, order or decree of any court in terms of Article 61(1)(f) of the Constitution. The question of disqualification period of the candidates has been discussed in a renowned judgment of the Hon'ble Supreme Court of Pakistan in "Hamza Rasheed Khan and another v. Election Appellate Tribunal, Lahore High Court, Lahore and others (PLD 2024 Supreme Court 256) wherein it has been held as under:

The view taken in Sami Ullah Baloch v. Abdul Karim Nausherwani (PLD 2018 SC 405) treating the declaration made by a court of civil jurisdiction regarding breach of certain civil rights and obligations as a declaration mentioned in Article 61(1) (f) of the constitution and making such declaration to have a lifelong disqualifying effect amounts to reading into Constitution and is therefore overruled.

Section (232)(2) added in the Elections Act,2017, vide the Elections (amendment) Act, 2023 promulgated on 26.06.2023, prescribes a period of five years for the disqualification incurred by any judgment, order or decree of any court in terms of Article 61(1)(f) of the Constitution and has also made such declaration subject to the due process of law. This provision is already in field, and there remains no need to examine its validity and scope in the present case.

1. Perusal of record reveals that the aforesaid provision of section was ienacted through the Elections (Amendment) Act, 2023, promulgated on 26.06.2023 and same was in field prior to the passing of the impugned judgment dated 04.07.2023 by learned Chief Court. Keeping in view the aforesaid provision of section and while seeking guidance from the above referred esteemed judgment, I am of the considered view that the learned Chief Court while disqualifying the respondent No.1 from the seat of G.B Assembly for the remaining term of G.B Legislative Assembly did not comply with the mandatory provision of Section 232(2) of the Elections (Amendment) Act, 2023, promulgated on 26.06.2023. In view of the matter, the observation of the learned Chief Court pertaining to disqualification of respondent No.1 from the seat of G.B Assembly for the remaining term of G.B Legislative Assembly is set aside and it is held that the period of disqualification of respondent No.1 is for five years as per spirit of section 232(2) of the Elections (Amendment) Act, 2023. So far as the contention of learned counsel for the petitioner that in view of principle settled by Hon'ble Supreme Court of Pakistan in the case of Sami Ullah Baloch v. Abdul Karim Nausherwani (PLD 2018 SC 405), the disqualification of the respondent No.1 is to be for life time is concerned, the same is without force because the said observation made in supra case has been overruled by the larger Bench of Hon'ble Supreme Court of Pakistan in the case reported as Hamza Rasheed Khan and another v. Election Appellate Tribunal, Lahore High Court, Lahore and others (PLD 2024 Supreme Coutt 256). The Hon'ble Supreme Court of Pakistan in this latest case, in the light of provision of section 232(2) of the Elections (Amendment) Act 2023 has settled the period of disqualification.

2. Now I would like to discuss the observation of the learned Chief Court passed in para No.14 of the judgment whereby it has been held by the Court that "petitioner himself is a proscribed person under section 11-EE of the ATA, 1997 and his name is placed in IV Schedule of the said Act but this fact was not disclosed by the petitioner at the time of contesting the election and filing the writ petition before the Court therefore, he is guilty of concealment of facts which prima facie tends to his disqualification under section 231 of the Elections Act, 2017 and in this regard Speaker G.B Assembly was directed to forward a reference against the petitioner to the Chief Election Commissioner in terms of Article 51 sub-Article 3 of the Government of Gilgit Baltistan Order, 2018 for his disqualification from the seat of G.B Assembly". The relevant sections 231 and 232 of the Elections Act, 2017 are hereby reproduced as under for the sake of ready reference:-

231 Qualifications and disqualifications:-

The qualifications and disqualifications for a person to be elected or chosen or to remain a Member of the Majlis-e-Shoora (Parliament) or a Provincial Assembly shall be such as are provided in Articles 62 and 63.

232 Disqualification on account of offences:-

Where a person has been convicted for any offence under this Act or has been found guilty of any corrupt or illegal practice by a Tribunal, he shall, if the Commission is of the view that circumstances so warrant and makes an order to that effect, be disqualified for such period not exceeding five years as may be specified in the order from being, or being elected as a Member of an Assembly, the Senate or a local government.

2024 M L D 1341

[Supreme Appellate Court Gilgit-Baltistan (Gilgit)]

Before Sardar Muhammad Shamim Khan, C.J

Asad ullah---Appellant

Versus

The State---Respondent

Criminal Appeal No. 08 of 2023 in Crl. PLA No. 26 of 2023, heard on 17th August, 2023.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code ( XLV of 1860 ),Ss.365-B, 494, 34 & 109---Government of Gilgit-Baltistan Order, 2018, Art. 75(13)---Kidnapping or abduction, marrying again during lifetime of husband or wife, common intention, abetment---Bail, grant of---Rule of consistency---Similarly placed co-accused granted bail---Petitioner (accused) was not nominated in the FIR, instead he was implicated on the basis of supplementary statement of the complainant recorded by the police nine days after the occurrence---Although the complainant in his said supplementary statement levelled allegation of abduction against the petitioner along with three co-accused persons yet record showed that the alleged victim /lady filed private complaint under Ss. 506 & 34, P.P.C. before the Court of Magistrate against her father and other relatives---Before the Court of Magistrate, victim/lady herself appeared and got her statement recorded in which (statement) she categorically contended that she was not abducted by any of the accused persons, rather, she out of her own free will contracted marriage with one of the co-accused persons, and she mentioned the date of her marriage which was about three months before the date of registration of the FIR---It was further contended by the alleged victim that her parents were not happy of her marriage and they were causing illegal harassment to her ,therefore, she filed the said private complaint against her father and other relatives---Alleged victim, in her said statement, further contented that before contracting marriage with co-accused, her Nikah was not solemnized with anyone---Keeping in view the said statement of the alleged abductee the offences under sections 365-B & 494, P.P.C., were not attracted against the petitioner---Record showed that four co-accused persons, with similar allegation , preferred their post arrest bail which was allowed by the Sessions Court Judge and the Chief Court---Case of the petitioner was at par with the case of aforesaid co-accused, therefore, the petitioner was also entitled for the same relief keeping in view the rule of consistency---Petitioner was behind the bars since his arrest and was no more required by the police for the purpose of further investigation---No useful purpose would be served by keeping the petitioner in jail for an indefinite period---Petitioner was admitted to post arrest bail.

Burhan Wali, Advocate for petitioner.

Mir Muhammad Prosecutor General for the State.

Manzoor Hussain, Advocate for the Complainant.

Date of heaing: 17th August, 2023.

Judgment

Sardar Muhammad Shamim Khan, C.J.---Through instant Criminal Petition petitioner namely Asad Ullah seeks post arrest bail in a case registered against him vide FIR No.211 of 2022 dated 19.11.2022 offences under sections 494, 365-B, 34 & 109, P.P.C. at police station Jutial District Gilgit.

1. According to FIR, on 19.11.2022 at about 02:15 P.M the wife of the complainant namely Mst. Kalsoom went outside from her house in response to a vehicle horn and after that she did not return back. The complainant kept on searching for his wife but she was not traced. The complainant entertained suspicion that his wife was deceitfully abducted by Mubashir accused. Hence instant FIR was registered.

2. Learned counsel for the petitioner contended that petitioner is not nominated in the FIR; that the petitioner was implicated in the instant case on the basis of supplementary statement of the complainant recorded by the police on 28.11.2022 with the delay of nine days; that in fact Mst. Kalsoom Bibi the alleged abductee out of her own free will contracted marriage with Mubasir co-accused and this regard she appeared before the court of learned Magistrate Dassu and got her statement recorded; that the alleged abductee in her said statement has not supported the prosecution version, as narrated by the complainant in the FIR; that the petitioner has falsely been implicated in the instant case on the basis of mala fide on account of his relationship with co-accused namely Mubashir ; that the petitioner is behind the bars since his arrest and is no more required by the police for the purpose of further investigation. Thus, it is submitted that by accepting instant appeal, the petitioner may be admitted to post arrest bail.

2024 M L D 1452

[Supreme Appellate Court Gilgit Baltistan (Gilgit)]

Before Sardar Muhammad Shamim Khan, C.J

Umer Farooq---Appellant

Versus

The State---Respondent

Criminal Appeal No. 3 of 2024 in Crl. PLA No. 1 of 2024, heard on 27th March, 2024.

Criminal Procedure Code (V of 1908)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 397 & 34---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Bail, grant of---Further inquiry---Accused-Petitioner was charged for committing murder of the brother of complainant by firing during a robbery---Petitioner was not nominated in the FIR---Although the petitioner was implicated in the instant case on the basis of statement of eye-witness recorded by the police on 30.08.2020 with the delay of five days yet the said witness in his said statement only raised suspicion against the petitioner by contending that from the features and physical appearance, the unknown culprit with muffled face was looking like a neighbor---Admittedly the occurrence took place at night time and the unknown culprit had muffled his face, therefore, he was not identified at the spot---Prima facie, from the statement of eye-witness, serious question of identification of the petitioner was involved in the case---Perusal of record further revealed that except the deposition of said witness, no other incriminating evidence was available on record connecting the petitioner with the commission of instant occurrence---Veracity and admissibility of such evidence qua the involvement of the petitioner would be adjudged by the Trial Court after recording the prosecution's evidence---Although, during investigation, pistol was allegedly recovered from the possession of the petitioner and report of Forensic Science Laboratory was positive, however, said report revealed that empties as well as pistol recovered from the possession of the petitioner were simultaneously received in the said office on 13.01.2021, therefore, positive report of Forensic Science Laboratory was inconsequential---Case of the petitioner came within the ambit of further inquiry, in circumstances---Petitioner was behind the bars since his arrest and was no more required by the police for the purpose of further investigation---No useful purpose would be served by keeping the petitioner in jail for an indefinite period---Petition was accepted and petitioner was admitted to post arrest bail, in circumstances.

Burhan Wali for Petitioner.

Mir Muhammad Prosecutor General for the State.

Aurangzeb Khan for the Complainant.

Date of hearing: 27th March, 2024.

Judgment

Sardar Muhammad Shamim Khan, C.J.---Through instant Criminal appeal the petitioner namely Umer Farooq seeks post arrest bail in a case registered against him vide FIR No.115 of 2020 dated 26.08.2020 offences under sections 302, 397 and 34, P.P.C. read with section 13 Arms Ordinance at police station City District Gilgit.

1. According to FIR on 25.08.2020 at about 10:00 P.M, Altaf Hussain brother of the complainant alongwith his paternal cousin namely Siraj Khan was proceeding towards their house from the main bazaar. When they reached near Substation Gilgit, in the meanwhile one un-known person with muffled face came over there and pointed pistol at Altaf Khan and Siraj Khan and demanded to hand over the mobile phones whereupon said Altaf Khan and Siraj Khan started running away and the said unknown culprit made firing at Altaf Khan and committed his murder. Hence instant FIR was registered.

2. Learned counsel for the petitioner contended that petitioner is not nominated in the FIR and he has falsely been implicated in the instant case on the basis of malafides; that the petitioner was not identified at the spot rather the culprits had muffled their faces; that on 30.08.2020, five days after the oc-currence, the police recorded the statement of an eye-witness namely Siraj Khan wherein he only raised suspicion against the petitioner by contending that from the features and physical appearance, the unknown culprit with muffled face was looking like a neighbor; that alleged recovery of pistol from the possession of the petitioner was planted against the petitioner in collusion with police; that the petitioner is a juvenile offender and his trial is being conducted by Juvenile Court ; that this Court vide order dated 05.04.2022 while deciding the bail petition of co-accused namely Abdul Mannam, directed the learned trial court to conclude the trial of instant case within the period of two months but despite lapse of period of about two years, trial of instant case has not been concluded by learned trial court; that petitioner was arrested in this case on 31.08.2020 and he is behind the bars since his arrest and is no more required by the police for the purpose of further investigation. Thus, it is submitted that by accepting instant appeal, the petitioner may be admitted to post arrest bail.

3. Learned counsel for the complainant and learned Prosecutor-General have vehemently opposed the instant appeal on the grounds that although the petitioner is not nominated in the FIR yet he was implicated in the instant on the basis of statement of P.W Siraj Khan recorded by the police on 30.08.2020; that the aforesaid P.W in his said statement levelled specific allegation against the petitioner that he made firing at Altaf Khan and committed his murder; that during investigation pistol was recovered from the possession of the petitioner which is sufficient incriminating evidence connecting the petitioner with the commission of this offence; that petitioner is habitual offender and is involved in three other criminal cases registered against him at different police stations; that the offences alleged against the petitioners are heinous in nature and come within the purview of prohibitory clause of section 497 Cr.P.C. Thus, it is submitted that instant Cr1. Appeal is.liable to be dismissed.

2024 M L D 565

[Chief Court Gilgit-Baltistan]

Before Ali Baig, CJ

Mst.NASEEBA---Petitioner

Versus

SALEEM AKHTAR and 2 others---Respondents

Writ Petition No.321 of 2023 along with C.M. No.660 of 2023, decided on 21st September, 2023.

Civil Procedure Code (V of 1908)---

----O. XIII, R. 2---Specific Relief Act (I of 1877), Ss. 42 & 12---Suit for declaration and specific performance of agreement to sell---Production of documentary evidence---Stage---Scope---Writ jurisdiction of the Chief Court was invoked by the defendant against the order of the District Court allowing revision filed by the plaintiff---Contention of the petitioner/defendant was that documents could not be produced by the respondent/plaintiff at the time of recording of rebuttal evidence---Record revealed that during trial of the case before the Trial Court, the respondent/plaintiff had filed application for production of the disputed cheques---Trial Court had obtained replication from the petitioner/defendant and heard the arguments from both parties; and after that, the Trial Court had allowed the said application, and the respondent/plaintiff was allowed to produce the disputed Cheques in the trial vide an order---Petitioner/defendant had not challenged the said order passed by the Trial Court before the Appellate Forum , which had attained finality---Hence, the petitioner/defendant was estopped by her conduct and admission to challenge the said order before the Chief Court at belated stage---Moreover, there was no any bar in law to exhibit the already produced documents at the time of recording of rebuttal evidence---Record further revealed that the concerned Manager Operation of the Bank who had attested the disputed cheques had already appeared before the Trial Court and his statement had also been recorded by the Trial Court---Said witness had also owned the disputed cheques in his statement recorded by the Trial Court stating therein that the original cheques were lying in the bank; hence, the Trial Court had erred in law by refusing to exhibit the disputed cheques while recording rebuttal evidence and the Revisional Court had rightly set aside the order of the Trial Court while accepting the revision of the respondent/plaintiff allowing him to exhibit the disputed cheques, as the same (cheques) would help the Trial Court to arrive at correct and just conclusion---No illegality or material irregularity had been committed by the Revisional (District) Court while passing the impugned judgment/order warranting interference of the Chief Court under its writ jurisdiction---Chief Court upheld the impugned judgment and order passed by the Appellate Court---Writ petition filed by the defendant was dismissed, in circumstances.

Zafar Iqbal for Petitioner.

Mir Zeeshan Akhlaque for Respondents.

2024 M L D 1354

[Gilgit Baltistan Chief Court (Skardu Bench)]

Before Ali Baig, C.J

Soday Bi through L.Rs---Petitioner

Versus

Additional District Judge, Skardu and 5 others---Respondents

Writ Petition No. 139 of 2022, decided on 10th November, 2023.

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

----S. 12(2)---Application under S.12(2) C.P.C---Fraud, misrepresentation or want of jurisdiction---Petitioner in his application had not categorically stated the fraud, misrepresentation or want of jurisdiction as required under S.12(2), C.P.C---Courts below had not committed any material irregularity or illegality while dismissing the said application---Writ petition was dismissed, in circumstances.

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

----S.12(2)---Application under S.12(2) C.P.C---Consent/ compromise decree---Fraud, misrepresentation or want of jurisdiction, invoking of---Petitioner had effected compromise of his free will as his signature and signatures of his two sons appeared on the compromise deed---Moreover, record revealed that the petitioner was present before the Trial Court at the time of passing of order---Essential requirements/ingredients necessary to invoke the jurisdiction of Court under S.12(2), C.P.C, was missing---Courts below had not committed any material irregularity or illegality while dismissing the said application---Writ petition was dismissed, in circumstances.

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

----S. 12(2)---Application under S.12(2) C.P.C---Powers of the Court---Scope---Petitioner's application under S.12(2) C.P.C. was dismissed by the Trial/Executing Court without framing of issue and recording of evidence---Validity---Trial Court is not bound to frame issues or to record evidence and application under S.12(2), C.P.C., can be decided on the basis of material placed before it---Courts below had not committed any material irregularity or illegality while dismissing the application of the petitioner filed under S.12(2), C.P.C.---Writ petition was dismissed, in circumstances.

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

----Art. 86(2)---Constitution of Pakistan, Art. 199---Writ petition---Writ under Article 199 of the Constitution of Pakistan applies only to cases involving the illegal assumption, non-exercise or irregular exercise of jurisdiction by the Courts below---It cannot be invoked against the conclusion of law or facts which are result of irregular exercise of jurisdiction---Writ petition was dismissed.

Mir Nisar Hussain and Ghulam Muhammad for Petitioner.

Latif Shah and Sher Baz for the contesting Respondent.

Date of hearing: 8th November, 2023.

Judgment

Ali Baig, C.J.---Through the instant writ petition filed under Article 86(2) of the Government of Gilgit Baltistan Order 2018, the petitioner has called in question the validity of the impugned judgment/order dated 25.11.2022 passed by the learned Addl. District Judge, Skardu in Civil Revision No. 07/2022, whereby the learned Addl. District Judge Skardu has dismissed the civil revision petition of the present petitioner by maintaining the order/judgment dated 23.08.2022 passed by the learned Civil Judge 1st Class Roundu camp at Skardu.

1. Brief facts of the case leading to filing of the instant writ petition are that two execution petitions bearing Execution Petition No. 01/2021 titled "Fazal v. Lashkar" and Execution Petition No. 05/2021 titled "Hamza Ali v. Fazal" were pending before the Executing Court Roundu. During the execution proceedings, the parties of both execution petitions had filed a written compromise deed dated 27.05.2022 effected between the parties outside of the Court. The learned Executing Court Roundu on the request of both the parties recorded their statements and disposed both the aforesaid execution petitions in the light of compromise deed dated 27.05.2022, vide order dated 02.06.2022. Thereafter, on 16.08.2022, the present petitioner had filed an application under section 12(2) C.P.C.0 before the learned Civil Judge 1st Class Roundu for setting aside the order dated 02.06.2022 passed by the Executing Court Roundu in Execution Petition Nos. 01/2021 and 05/2021 as well as the compromise deed dated 27th May, 2022.

2. The learned trial Court after hearing preliminary arguments of the learned counsel for the present petitioner on the application under section 12(2) C.P.C., had dismissed the aforesaid application being non-maintainable, vide judgment/order dated 23.08.2022 passed in C.M No. 20/2022.

3. Feeling aggrieved and dissatisfied with the order/judgment of the learned Civil Judge 1st Class Roundu, the present petitioner had filed a civil revision petition before the learned Addl. District Judge, Skardu. The learned Addl. District Judge, Skardu, after hearing arguments on behalf of both the parties, had also dismissed the civil revision petition of the present petitioner being devoid of merit and upheld the judgment/order of the learned trial Court, vide impugned judgment/order dated 25.11.2022.

4. Feeling aggrieved and dissatisfied with the impugned judgment dated 25.11.2022 of the learned Addl. District Judge, Skardu, the petitioner has filed the instant writ petition before this Court.

5. The learned counsel appearing on behalf of the petitioner argued that the learned trial Court has passed the order dated 23.08.2022 without hearing the stance of the respondents, as such the learned trial Court has passed by impugned order dated 23.08.2022 in a hasty manner which is liable to be set aside. The learned counsel for the petitioner further argued that the impugned judgment/order passed by the learned Addl. District Judge, Skardu is contrary to law and facts on the record of the case, as such the impugned judgment/order is not maintainable and liable to be set aside. The learned counsel for the petitioner further argued that the petitioner is an illiterate person and the respondents have taken undue benefit from the illiteracy of the petitioner and learned Courts below have ignored this fact as such the judgments/orders of both the Courts below are liable to be set aside. The learned counsel for the petitioner further argued that the learned Courts below have misconceived the wisdom of section 12(2) C.P.C. and wrongly passed the impugned judgments/orders which are not sustainable in the eye of law and the same are liable to be set aside. The learned counsel for the petitioner further argued that the parties have effected compromise in Execution Petion No. 05/2021 titled "Hamza Ali v. Fazal" whereas the learned Executing Court has wrongly disposed the Execution Petition o No.01/2021 titled "Fazal v. Lashkar", hence the impugned judgments/orders are contrary to actual facts, hence the same are liable to be set aside. The learned counsel for the petitioner further argued that if the impugned judgments/orders are not set aside, the petitioner will suffer irreparable loss. In support of their arguments, the learned counsel for the petitioner have relied upon judgments of superior Courts reported as 1984 SCMR 586, 2002 CLC 166, 2005 CLC 1704, 1957 PLD 983 and 1993 SCMR 662.

6. Conversely, the learned counsel for the contesting respondents controverted the arguments advanced by the learned counsel for the petitioner and supported the impugned judgments/orders passed by the learned Courts below by contending that the petitioner had effected compromise with the respondents on his own free will without any external influence, whereupon the learned Executing Court Roundu has disposed both the execution petitions in the light of compromise deed dated 27.05.2022. The learned counsel for the contesting respondents further contended that at the time of disposal of both the execution petitions, the present petitioner was present before the Executing Court Roundu along with his counsel as evident from the order dated 02.06.2023, hence presumption of truth is attached to the order of Court, as such the learned Courts below have taken into consideration the entire record and facts of the case and has rightly passed the impugned judgments/orders. The learned counsel for the contesting respondents further contended that the petitioner had also got recorded his statement in favour of compromise deed dated 27.05.2022 before Executing Court Roundu, as such the application of the petitioner under section 12(2) is not maintainable. The learned counsel for the contesting respondents further contended that the learned counsel for the petitioner has failed to point out any illegality or material irregularity in the impugned judgments/orders passed by the learned Courts below, hence the writ petition of the petitioner is liable to be dismissed.

7. I have heard the arguments advanced by the learned counsel for the parties at a considerable length and also gone through the record of the case with their able assistance.

8. First of all I would like to reproduce the relevant provision section 12(2) C.P.C. for ease and convenience as under:

"12(2).---Where a person challenges the validity of a judgment, decree or or order on the plea of fraud, or misrepresentation or want of jurisdiction, he shall seek his remedy by making a application to the Court which passed the final judgment, decree or order and not by a separate suit"

Bare reading of the afore reproduced provisions of C.P.C. reveals that application under section 12(2) C.P.C. can be filed on the following three grounds i.e. (1) Mis-representation; (2) Fraud and (3) Want of jurisdiction.

1. I have gone through the contents of the application filed by the present petitioner under section 12(2) C.P.C. in the trial Court and found that the petitioner has not categorically stated the fraud, misrepresentation or want of jurisdiction as required under section 12(2) C.P.C. in the said petition. Even otherwise, the petitioner namely Fazil Ali has effected compromise on his free will as his signature and signatures of his two sons namely Basharat Ali and Akbar Ali are appearing on the compromise deed effected on 27.05.2022. Moreover, the petitioner was present before the trial Court at the time of passing of order dated 02.06.2022 by the learned irial Court as evident from the record as such the learned trial /Executing Court has passed the impugned judgment/order by fulfilling of codal formalities of compromise.

2024 M L D 1394

[Gilgit Baltistan Chief Court]

Before Ali Baig, C.J

Moatabar Khan---Petitioner

Versus

Zaheer Abbas and another---Respondents

Criminal Misc. No. 296 of 2023, decided on 30th November, 2023.

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

----S. 497 (5)---Penal Code (XLV of 1860), Ss. 302, 324, 337-A(1), 337-F(v), 109 & 34---Qatl-i-amd, attempt to qatl-i-amd, shajjah-i-khafifa, ghayr-jaifah hashima, abetment, common intention---Petition for cancellation of bail, dismissal of---Complainant sought cancellation of bail granted to the accused---Record revealed that the Police had involved the respondent / accused in the offence of abetment under S.109, P.P.C., but no direct evidence against him was available on the record---Lady (prosecution witness )being an eye-witness of the occurrence had sustained injury in the occurrence---Said witness had not uttered a single word against the respondent /accused in her statement recorded under section 164, Cr.P.C, by the concerned Judicial Magistrate---Thus, the Trial Court had rightly granted bail in favour of the respondent /accused---Even otherwise, the petitioner / complainant had failed to mention any of the acclaimed principles / conditions , the respondent /accused had violated on the basis of which his bail could be cancelled---Petition under S. 497(5), Cr.P.C, was dismissed, in circumstances.

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

----S. 497(5)---Cancellation of bail---Grounds---Bail may be cancelled (i) if bail granting order is patently illegal, erroneous, factually incorrect and is a result of miscarriage of justice; (ii) if the accused has misused the concession of bail; (iii) if the accused has tried to tamper/hamper prosecution evidence; (iv) if there is likelihood of absconsion of the accused beyond the jurisdiction of the Court; (v) if the accused has misused his liberty by being involved in a similar offence; (vi) if some fresh facts and material have been collected during the course of investigation which tend to establish theguilt of the accused.

Samee Ahmed for the Petitioner/complainant.

Malik Sherbaz, Dy. Advocate General for the State.

Athar Hussain and Mehmood Alam for the Respondent/accused.

Date of hearing: 28th November, 2023.

Order

Ali Baig, C.J.---The petitioner/complainant namely Motabar Khan has filed the instant petition under section 497(5) Cr.P.C for cancellation of bail granted to the respondent/accused namely Zaheer Abbas by the learned Sessions Judge, Gilgit, vide order dated 21.10.2023 passed in B.A No.289/2023.

1. Succinctly the allegations against the respondent/accused as reflected in the FIR are that on 04.06.2023 at about 0400 hours, the present respondent/accused along with other co-accused has committed murder of one Zeeshan Abbas and injured Mst. Sana Zahra by opening fires with fire arms at the house of one Imtiaz situated at Sakwar, Gilgit.

2. On written application of the complainant, the local police of PS Jutial have chalked FIR No. 89/2023, dated 04.06.2023, under sections 302, 324, 337-A(1), 337- F(v), 109, 34 P.P.C.. The present respondent/accused after his arrest had filed an application under section 497 Cr.P.C for grant of bail before the Court of learned Sessions Judge, Gilgit. The learned Sessions Judge, Gilgit vide order dated 21.10.2023 has allowed bail to the respondent/accused.

3. Feeling aggrieved and dissatisfied with the impugned order of the learned Sessions Judge, Gilgit dated 21.10.2023, the complainant/ petitioner has filed the instant petition under section 497(5) Cr.P.C before this Court for cancellation of bail.

4. The learned counsel appearing on behalf of the petitioner/complainant argued that the respondent/accused is directly nominated in the promptly lodged FIR. The learned counsel for the petitioner/ complainant further argued that the sections reflected in the FIR are not bailable and also fall within the ambit of prohibitory clause of section 497 Cr.P.C, as such the bail granted to the respondent/accused is liable to be re-called. The learned counsel for the petitioner/complainant further argued that the motive behind the occurrence has been disclosed in the FIR. The learned counsel for the petitioner/complainant further argued that the eye-witnesses have established the presence of the respondent/accused at the place of occurrence alongwith other co-accused during the commission of offence in their statements recorded by the police under section 161 Cr.P.C. The learned counsel for the petitioner/complainant further argued that the occurrence has been witnessed by impartial PWs and the PWs have narrated the natural account of the occurrence by fully implicating the present respondent/accused. The learned counsel for the petitioner/complainant further argued that the bail application of co-accused Muntazir Abbas has been dismissed by the learned trial Court. The learned counsel for the petitioner/complainant further argued that there is apprehension of tampering with prosecution evidence by the respondent/accused if the bail of the respondent/accused is not cancelled. The learned counsel for the petitioner/complainant further argued that the learned Sessions Judge, Gilgit has exercised his authority in an injudicious manner in the instant matter by granting bail to the respondent/accused in an offence which provides capital punishment, hence the impugned order of the learned Sessions Judge, Gilgit is not based on merit and the same is liable to be set aside by recalling bail facility of the respondent/accused in the interest of justice.

5. Conversely, the learned counsel for the respondent/accused strongly opposed this bail cancellation petition by contending that the learned Sessions Judge, Gilgit has rightly admitted bail to the petitioner on merit as the respondent/accused was charged under section 109 P.P.C. and the role of the respondent/accused is different from his co-accused. The learned counsel for the respondent/accused further contended that the respondent/accused has never misused the bail facility. The learned counsel for the respondent/accused further contended that the petitioner has failed to agitate any ground of bail cancellation in his arguments as well as in his petition. The grounds taken by the petitioner/complainant do not meet the requirements of bail cancellation, hence, the instant petition is not maintainable and liable to be dismissed. The learned counsel for the respondent/accused further contended that the important witness of the occurrence is Mst. Sana Zahra and she has not uttered a single word against the present respondent/accused in his statement recorded under section 164 Cr.P.C by the learned Judicial Magistrate Gilgit. The learned counsel for the respondent/accused further contended that the respondent/accused has been booked in the FIR under section 109 P.P.C. but there is no evidence on record to connect the respondent/accused with the commission of alleged offence. The learned counsel for the respondent/accused have relied upon judgments of superior Courts reported as 2004 SCMR 231, 2003 YLR 2910 and 2023 YLR 2660.

6. The learned Dy. Advocate General appearing on behalf of the State supported the version of petitioner/complainant and relied upon arguments on the learned counsel for the petitioner/complainant.

7. I have heard arguments advanced by the learned counsel for the parties and perused the available record of the case with their able assistance.

8. From perusal of contents of challan/final police report it transpires that the police, has involved the present respondent No.1/accused in the offence of abetment under section 109 P.P.C., but no direct evidence against the present respondent No.1/accused is available on the record. PW namely Mst. Sana Zahra is eye-witness of the occurrence and she has also sustained injury in the occurrence. The above named PW has not uttered a single word against the present respondent No.1/accused in her statement recorded under section 164 Cr.P.C by the learned Judicial Magistrate Gilgit, thus the learned trial Court has rightly granted bail in favour of the present respondent No.1/accused, vide bail order dated 21.10.2013.

9. Moreover, the Hon'ble superior Courts have enunciated/laid down the following principles for cancellation of bail:

(i) That if bail granting order is patently illegal, erroneous, factually incorrect and has result of miscarriage of justice.

(ii) That the accused has misused the concession of bail.

(iii) That the accused has tried to tamper/hamper prosecution witnesses.

(iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of the Court.

(v) That the accused has misused his liberty while involving into similar offence.

2024 M L D 1737

[Gilgit Baltistan Chief Court]

Before Ali Baig, C.J

Umar Farooq---Petitioner

Versus

The State---Respondent

Criminal Misc. No. 323 of 2023, decided on 28th November, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-i-amd, common intenition---Bail, grant of---Rule of consistency---Delay in conclusion of trial---Accused was charged that he along with his co-accused committed murder of the brother of complainant---From perusal of record it transpired that the occurrence took place on 16-04-2019 and FIR was registered on the same day---However, despite lapse of more than 4½ years the prosecution had failed to conclude the trial---Earlier, the petitioner had filed an application for grant of bail before the High Court which was disposed of with direction to the Trial Court to dispose of the case of the petitioner/accused within 10 days by conducting day to day hearing as case was at concluding stage but the prosecution failed to produce remaining witnesses before the Trial Court, hence, bail petition was filed---Prosecution had failed to conclude the case of the petitioner despite lapse of more than 4½ years of the registration of FIR and despite clear direction of the High Court---Accused could not be kept in jail for indefinite period as punishment on the ground that he was directly charged for an offence falling under the prohibitory clause of S.497, Cr.P.C.---Moreover, co-accused of the present petitioner had been released on bail by the High Court as such the petitioner was also entitled for the same on the principle of rule of consistency---Petitioner/accused was behind bars for last more than four years and he was no more required for purpose of investigation---No useful purpose would be served by keeping the petitioner behind the bars for an indefinite period---Thus, petitioner was entitled for concession of bail---Petitioner was admitted to post arrest bail, in circumstances.

Saadat Ullah and Abid Hussain for the Petitioner.

Malik Sherbaz, Dy. Advocate General for the State.

Khalid Mehmood for the Complainant.

Date of hearing: 24th November, 2023.

Order

Ali Baig, C.J.---The instant bail petition has been filed by the petitioner/ accused under section 497 Cr.P.C seeking post arrest bail in criminal case FIR No. 14/2019 registered under sections 302/34 P.P.C. at Police Station Parri Bangla Gilgit.

1. Succinctly, the prosecution story as reflected in the FIR is that complainant namely Muhammad Ghulam son of Wilayat Khan resident of Harban Kohistan presently residing at Parri Bangla had submitted a written complaint/application before SHO police Station Parri Bangla District Gilgit with the contention that his real brother namely Faras Khan had gone to his land situated at Parri Bangla to look after his land and there was a dispute over the said land between one namely Abdul Wazir and the deceased. On the day of occurrence i.e. 06.04.2019 at about 1600 hours, accused namely Abdul Wazir son of Ghushpure, Shafiullah, Ghulam Ullah sons of Abdul Wazir and Umar Frooq son of Abdul Latif resident of Parri Bangla appeared at the scene of occurrence and with intention to kill his real brother attacked/assaulted him. Resultantly caused grievous injuries to his real brother and as per final police report/challan the victim died due to the said injuries.

2. After receipt of the complaint the concerned SHO lodged the FIR bearing No. 14/2019, arrested all the nominated accused, started investigation of the case and after completion of formal investigation the concerned SHO committed the accused/present petitioner to judicial custody. The present petitioner had filed a post arrest bail petition before the learned trial Court. The learned trial Court after hearing arguments on behalf of both the parties has dismissed the application filed by the petitioner, hence, the present petitioner has preferred post arrest bail petition before this Court for his enlargement on bail.

3. It is pertinent to mention here that the post arrest bail petition filed by the present petitioner had been disposed of by this Court with direction to learned trial Court to "conclude the trial of the case within 10 days vide order dated 02-11-2023 passed in Cr. Misc No.251/2023. The learned trial Court has failed to conclude the trial of the case within the stipulated period as directed in the aforesaid order of this Court, hence, the petitioner has filed the instant bail petition before this Court.

4. The learned counsel for the petitioner/accused argued that the accused/petitioner is innocent and the local police in collision with the complainant has implicated the petitioner in the instant case with mala fide intention. The learned counsel for the petitioner/accused further argued that there is no eye-witness of the occurrence. The learned counsel for the petitioner/accused further argued that no crime weapon has been recovered from the petitioner/accused by the police. The learned counsel for the petitioner further submitted that no specific role has been attributed to the petitioner in the occurrence. The learned counsel for the petitioner/accused further submitted that prosecution has failed to link the present accused/ petitioner with the alleged crime. The learned counsel for the petitioner/accused further submitted that the case of the petitioner/accused requires further inquiry, therefore, the accused /petitioner is entitled for concession of bail. Concluding their arguments, the learned counsel for the petitioner/accused argued that the case of prosecution has badly failed to conclude trial of case within the stipulated period as directed by this Court, hence the petitioner/accused is entitled for concession of bail.

5. Conversely, the learned DAG and learned counsel for the complainant controverted the arguments advanced by the learned counsel for the petitioner/accused by contending that the present petitioner/accused is directly nominated in the promptly lodged FIR with specific role. The learned DAG and learned counsel for the complainant further contended that eye-witnesses have fully implicated the petitioner/accused with the alleged crime/occurrence. The learned DAG and learned counsel for the complainant further contended that offences reflected in the FIR are non-bailable and capital punishment is provided for the offence and in like cases petitioners/accused are not entitled for any leniency. The learned DAG and learned counsel for the complainant further contended that case is at concluding stage and only one witnesses is required to be examined. The learned DAG further contended that petitioner/ accused has committed murder of an innocent person in a broad day light and there is no probability of false implication of the accused/petitioner in the instant case. While concluding his arguments, the learned DAG and learned counsel for complainant argued that the petitioner/accused is involved in commission of a heinous offence and is not entitled for any concession of bail and bail petition of the petitioner/ accused is liable to be dismissed.

6. I have heard the arguments advanced by the learned counsel for the parties and with their able assistance perused the available record of the case, minutely.

2024 M L D 1777

[Gilgit Baltistan Chief Court]

Before Ali Baig, C.J and Mushtaq Muhammad, J

Kashif Hussain---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No. 282 of 2023, decided on 22nd November, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-D, 34, 147 & 148---Attempt to commit qatl-i-amd, common intention, rioting armed with deadly weapons---Bail, grant of---Rule of consistency---Accused was charged for making firing in order to spread fear and terror, due to which complainant was hit and became injured---Petitioner/accused was not directly nominated in the FIR and no specific role hadbeen attributed to him in the occurrence and investigation of the case had been completed by the prosecution and there was no ocular evidence of the occurrence---Co-accused of the present petitioner who were attributed similar role, had been released on bail by the Trial Court---Another co-accused of the present petitioner had been released on bail by the Chief Court and the case of accused/petitioner was at par with the other accused hence, he was also entitled for grant of post arrest bail on the principle of consistency---Bail is not to be withheld as punishment---There was no legal and moral compulsion to keep the people in jail merely on the allegation that they have committed offences punishable with death or life imprisonment, unless reasonable grounds exist to disclose their involvement---Petition was allowed and the present petitioner/accused was admitted to post arrest bail.

Imtiaz Hussain, Mudassir Hassan and Zafeer Ahmed for the Petitioner.

D.A.G. Malik Sherbaz for the State.

Date of hearing: 22nd November, 2023.

Judgment

Ali Baig, C.J.---The instant bail petition under section 497 Cr.P.C has been filed by the petitioner/ accused for grant of post arrest bail, in criminal case bearing FIR No. 67/2022 registered at Police Sention Airport Gilgit for offences under sections 147, 324/34 and 337-D P.P.C. read with section 6/7 and 21-L of Anti-Terrorism Act, 1997.

1. Brief facts of the case as per contents of the FIR are that complainant namely Usama son of Kareemuallh lodged a complaint before the SHO Police Station Airport Gilgit stating therein that on 30-7-2022 at about 05:30 hours when he reached near Yadghar Chowk Barkey to buy some soft drinks, a procession arrived there and the local police were also present along with the procession/mob. A motorcyclist from the procession quarreled with a chingchi driver. Some other motorcyclists from the procession also belaboured the chingchi driver. In the meanwhile the armed persons from the procession, and police officials raising anti religious slogans in order to spread fear and terror, opened fires towards Sdiddiqia Masjid from the place of occurrence /Yadyar chowk on passerby and Namzies/ worshipers. Further contended that he does not know the armed persons, however, he knows the police persons by face, one is from Qazalbash Mohallah and the another is from village Barmas. Resultantly, he received a bullet injury in his chest and he fell down on the ground, while Qasir Iqbal son of Pervaiz Iqbal has also received bullet injures and the locals of the areas shifted them to hospital for treatment.

2. On receipt of the complaint the concerned SHO registered the aforesaid FIR and started the investigation and during investigation the SHO arrested the present petitioner/ accused and some other co-accused of the petitioner and after completion of formal investigation to the extent of present petitioner, he has committed the accused/present petitioner to judicial custody/ lock-up at Gilgit.

3. The present petitioner had filed a post arrest bail application before the learned trial Court /ATC Gilgit. The learned trial Court/ATC Gilgit, after hearing the arguments on behalf of both the parties has dismissed the bail application of the present petitioner/ accused vide judgment/ order dated 11-10-2023, hence, the instant petition before this Court seeking post arrest bail on the grounds detailed in the petition.

4. The learned counsel for petitioner /accused contended that the petitioner/accused is innocent and has falsely beim implicated in the instant case. The learned counsel for the petitioner/ accused further submitted that there is no eye-witness of the occurrence and the petitioner/accused has been arrested without any cogent reason. The learned counsel for the petitioner/accused further submitted that the petitioner/accused is not directly nominated or even suspected in the FIR and no specific role has been attributed to him in the FIR. The learned counsel for the petitioner/ accused further submitted that the I.O of the case has released some nominated co-accused under section 169 Cr.P.C therefore, rule of consistency fully applied to the petitioner's case. The learned counsel for the petitioner/accused further submitted that the prosecution story is self made and fabricated which is based on mala fide intention. The learned counsel for the Detitioner/accused further submitted that nothing incriminating has been recovered from the possession of the present petitioner/accused by the I.O during investigation of the case. The learned counsel for the petitioner/ accused further submitted that investigation of the case has been completed and the petitioner/ accused is no more required for further investigation, hence, the petitioner/ accused is entitled for concession of bail. The learned counsel for the petitioner/ accused lastly submitted that there is no direct or indirect evidence is available on record against the petitioner/ accused therefore, petitioner/ accused is entitled for the concession of bail, which may be allowed to meet the ends of justice.

5. On the other hand the learned Deputy Advocate General vehemently opposed the contentions raised by the learned counsel for petitioner/ accused and contended that the offences reflected in the FIR are fully attracted to the petitioner's case and falls within the ambit of prohibitory clause of section 497 Cr.P.C. The learned Deputy Advocate General further contended that the occurrence had taken place due to illegal and unlawful act of the present petitioner/accused, peaceful atmosphere of the area has been disturbed and two innocent persons have lost their lives. The learned Deputy Advocate General further submitted that the offences are non bailable and capital punishment is provided for the said offences, therefore, the petitioner/accused is not entitled for concession of bail. The learned Deputy Advocate General further submitted that the prosecution has collected sufficient material/evidence to connect the accused/ petitioner with the alleged crime. The learned Deputy Advocate General further submitted that the petitioner/accused is fully involved in the unpleasant incident and is not entitled for any leniency. The learned Deputy Advocate General further submitted that the petitioner/accused is directly nominated in the FIR and the police has recovered the weapon of offence from the possession of the accused/ petitioner on his leading and pointation. The learned Deputy Advocate General further submitted that the petitioner/ accused has confessed his guilt in his confessional statement recorded under section 21-H of ATA. The learned DAG further submitted that the petitioner/ accused has specific role in the occurrence and his role is entirely different from his co-accused as such rule of consistency does not apply to the case of the petitioner/ accused. The learned DAG lastly submitted that the learned trial Court/ATC has rightly refused the bail petition and the learned counsel for the petitioner/accused has failed to substantiate the grounds mentioned in the petition. The petition in hand is not maintainable and is liable to be dismissed to meet the ends of justice.

2024 M L D 1854

[Gilgit Baltistan Chief Court]

Before Ali Baig C.J and Jahanzeb Khan, J

Ghulam Murtaza---Petitioner

Versus

The State through Assistant Director (Complaint) GBACE---Respondent

Criminal Miscellanous No. 62 of 2024, decided on 6th March, 2024.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 406, 409, 417, 420, 465, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---Bail, grant of---Further inquiry---Rule of consistency---Record transpired that the present accused/petitioner, had been implicated in the offences which were prima facie not attracted against him---No denial of the fact that publication of the tender in the PEPRA website was the prime and principle liability/responsibility of the then District Health Officer according to the rules, being sole custodian of the concerned department, but it seemed that the same liability had been malafidely/ dishonestly shifted to junior staff member who was even not the concerned/ministerial staff, rather he was technical staff---This was against the law/rules and such dishonest act of the concerned authority created serious doubts and dents in the case of the prosecution---Admittedly and surprisingly one of the co-accused who had been allegedly attributed an identical role had been released by the police under S.169, Cr.P.C.---Moreover, the then District Health Officer had also been exonerated and given clean chit from the Investigation Officer of the present case, which also attracted the universal, "Rule of Consistency" in favor of the present accused/petitioner---Undoubtedly, offences under Ss. 417, 420, 465, 471, P.P.C, were bailable offences, whereas offence under S.409, P.P.C, fallen within the ambit of prohibitory clause of S.497, Cr.P.C, which prima facie was not attracted in the present case to the extent of the present accused/petitioner---Matter in hand required further probe into the guilt of the accused/petitioner---In such like cases grant of bail is a rule and refusal thereof is an exception---Accused/petitioner was behind the bars for the last couple of months, waiting for commencement of the trial of the case---Investigation of the case was complete and the present accused/petitioner was no more required for further investigation---Thus, the case of the accused/petitioner squarely fell within the ambit of S.497(2) Cr.P.C, entitling him for the concession of post arrest bail and the same was allowed, in circumstances.

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

----S. 497---Bail---Tentative assessment---Scope---Observations made in the bail order are tentative in nature, which should not prejudice the trial of the case.

Amjad Hussain for the Petitioner.

Faqir Shah Special Prosecutor for the State/Anti-Corruption.

Date of hearing: 6th March, 2024.

Order

Jahanzeb Khan, J.---Consequent upon refusal of concession of bail to the accused/ petitioner namely Ghulam Murtaza son of Shaban Ali, by the learned Sessions Judge/ Incharge Anti-Corruption Gilgit, vide order dated 22-02-2024 passed in B.A No.06/ 2024, the accused/ petitioner has approached this Court by filing the petition in hand under sections 471 /468 /465/ 420/ 417/ 409/406 P.P.C. read with section 5(2) PCA 1947, for relief of post arrest bail in case FIR No.03/ 2024 registered at Police Station Anti-Corruption Gilgit.

1. Brief story of prosecution as elucidated in the FIR is that:

" A tender for purchase of medical equipment and furniture for 30 Bedded Hospital at Nagar Khan was scheduled on 16-06-2022 and an amount to the tune of Rs. 19.8 million was allocated/specified for the said purpose. As per law/procedure the tender was to be published in PEPRA website. The accused/petitioner was assigned the responsibility to publish the said tender in PEPRA website but the accused/petitioner with mala fide and malevolent intentions didn't publish the tender in PEPRA website and prepared bogus/forged documents and used it as genuine. As a sequel to it, on complaint of the complainant (AD Anti-Corruption) the case FIR bearing No.03/2024 was registered against the accused/petitioner along with the co-accused."

1. Initially, the accused/ petitioner filed a bail application bearing No.06/ 2024 under the section 497 Cr.P.C before the learned Sessions Judge/ incharge Anti-Corruption Gilgit, which was dismissed by the learned Judge Anti-Corruption Gilgit, after hearing contentions of both the parties. Feeling aggrieved from the said order the accused/ petitioner has preferred this petition seeking his post arrest bail.

2. Learned counsel for the petitioner/ accused Mr. Amjad Hussain advocate argued that the accused/ petitioner is innocent and the FIR has been lodged against the accused/ petitioner malafidely to implicate him in the instant case as there is no independent and convincing evidence available on record to connect the petitioner/ accused with the commission of offences mentioned in the FIR. Learned counsel for the accused/ petitioner submitted that the present accused/ petitioner has no connection with the alleged allegations, the accused/ petitioner is a Lab Technician BS-12 and he was not responsible for the publication of tender in the PEPRA website. He submitted that as per PEPRA rules, the then DHO Nagar namely Mushtaq was responsible for publication of tender in the PEPRA website, and principle liability lies on the shoulders of the then DHO Mushtaq. Learned counsel submitted that the co-accused DHO Mushtaq and Muhammad Kazim were also nominated in the promptly lodged FIR but interestingly the DHO Mushtaq has been exonerated and pardoned because he is an influential person while the co-accused Muhammad Kazim has got the benefit of section 169 Cr.P.C in his favor. He further submitted that the principle liability lies on the then DHO Mushtaq and his ministerial staff for the purpose of publication of said tender in the PEPRA website but a Lab-Technician and a Radiographer has been malafidely nominated in the FIR just to implicated them in the instant case. He further submitted that rule of consistency applies in the instant case and the accused/ petitioner is entitled for concession of bail. He further submitted that all the alleged offences don not fall within the ambit of the prohibitory clause of section 497 Cr.P.C and challan of the case been submitted before the trial court and investigation of the case is completed and the petitioner/ accused is no more required for further investigation, therefore, Keeping the accused/ petitioner behind the bars would serve no fruitful purpose. Lastly, the learned counsel submitted that the petitioner/ accused will never abuse or misuse the bail facility if this Honourable Court will release him on bail by accepting this petition. With these submissions he prayed for acceptance of the instant petition.

3. Conversely, learned Special Prosecutor for the State controverted the arguments advanced by the learned counsel for the accused/petitioner and contended that the present accused/petitioner was assigned responsibility to publish the tender in PEPRA website, making PC-I(s) of the developments projects, in this regard statement of the present accused/ petitioner has been recorded, wherein he admits the very fact, but the accused/ petitioner has misused the authority given to him, consequent upon, he has prepared the bogus and forged documents just to benefit the blued-eyed ones. Learned Special Prosecutor submitted that as for as release/ bail of the co-accused Muhammad Kazim is concerned, he was assigned the responsibility of the Store Keeper and he was supposed to issue/ disburse the items from the store, therefore, he (Muhammad Kazim, co-accused) has been released under section 169 Cr. P. C. He further submitted that all the offences are non-bailable and offence under section 409 P.P.C. entails imprisonment for life or imprisonment for a period of 10 years and falls under the purview of prohibitory clause of section 497 Cr.P.C. He further submitted that the petitioner/ accused is directly nominated in the promptly lodged FIR. Statement of the present accused/petitioner and the material available on record fully connects the accused/ petitioner with the commission of alleged offences and prima facie the prosecution has sufficient evidence in support of its version. With these submissions, he prayed for dismissal of this bail petition to meet the ends of justice.

4. We considered the arguments advanced by the learned counsel for the parties with due care and perused the available record and deliberated.

2024 M L D 1867

[Gilgit Baltistan Chief Court]

Before Jahanzeb Khan, J

Ashraf Din---Petitioner

Versus

Ikramullah and another---Respondents

Cr. Misc. No. 211 of 2023, decided on 5th September, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302(b), 324, 114 & 109---Qatl-i-amd, attempt to commit qatl-i-amd, abettor present at the time of offence, abetment---Petition for cancellation of bail, dismissal of---Tentative assessment of the record showed that the name of the accused was nowhere found in the contents of FIR and neither was the abettor nor instigator---No single evidence was available on record to connect the accused with the alleged offence---Neither the accused was directly nominated in the FIR nor any specific role or injury was attributed to the accused and admittedly no weapon of offence had been recovered from his custody during the course of investigation---Investigating Officer of the case had found that accused was merely present at the scene of crime at the relevant time and that he was neither armed nor he had caused any injury to any person---Thus, it appeared that the petitioner had implicated the accused in the case on account of relationship of accused with the deceased and the principal accused---Accused was not present at the time and place of alleged occurrence and insertion of Ss.109/114, P.P.C was meant to drag the accused with mala fide intention in the litigation---Tentative assessment prime facie did not establish the involvement of accused in the commission of offence in furtherance of common intention---Complainant had failed to point out that the bail granting order was patently illegal, erroneous, factually incorrect, perverse and that the accused had misused the privilege of bail---Only accusation/allegation leveled against the present accused was his alleged presence near the scene of occurrence at the time of alleged occurrence---Mere presence of accused near the venue of occurrence at the relevant time without attribution of any role in connection of the alleged occurrence was not a convincing and appealable ground for cancellation of bail---Furthermore, the cancellation of bail is a harsh order because it interferes with the liberty of an individual---In the present case none of the grounds for cancellation of bail were attracted---Bail cancellation petition filed by the complainant being bereft of any merit was dismissed, in circumstances.

2011 SCMR 1543 ref.

2009 SCMR 786; 2004 SCMR 1160; 2005 SCMR 1539;1994 SCMR 1064 and 2004 SCMR 231 rel.

Shabbir Hussain, Zain-ul-Abideen and Zahid Hussain for the Petitioner.

Malik Sherbaz Khan A.A.G. for the respondent No.2/State.

Burhan Wali, Najibullah and Anwarul Haq for Respondent No. 1.

Date of hearing: 5th September, 2023.

Judgment

Jahanzeb Khan, J.---This bail application has arisen out of the impugned order dated 07.08.2023 passed by the learned Sessions Judge Gilgit in Bail Application No.160/ 2023, filed by the accused/ respondent for grant of post arrest bail under section. 497 Cr.P.C.

1. Succinctly narrated facts of the case are that accused Hafeezullah, Ataullah and Fidaullah committed muder of one Khosh Amadeen by opening fires on him and a bystander also got injured due to the said firing. It is further alleged in the FIR that said occurrence took place on instigation/ abetment of accused Abdul Khaliq son of Abdul Waheed, Naseebullah and Abdul Qadir sons of Abdul Majeed and Raza Khan son of Uma Syed resident of Chilas.

2. The learned counsel for the petitioner/ complainant contended that the impugned order dated 07.08.2023 passed by the learned Sessions Judge Gilgit is illegal, erroneous, factually incorrect, perverse and tantamount to miscarriage of justice. The learned trial Court didn't consider the case in accordance with facts and has failed to appreciate the law regarding grant of bail in non-bailable offences and the provision of section 497 Cr.P. C has been misinterpreted while granting bail to the accused/ respondent No. 1. Learned counsel for the petitioner/ complainant submitted that the accused/ respondent No.1 was present near the place of occurrence and sufficient evidence is available to connect the accused/ respondent No.1 with the commission of offence but the same was not given any weightage by the learned trial Court while passing the impugned order. He argued further that the offence 302 P.P.C. entails capital punishment and falls within the ambit of prohibitory clause of Section 497 Cr.P.C, whereas section 324 P.P.C. entails 10 years punishment and falls within the ambit of prohibitory clause of section 497 Cr.P.C. Sections 109 and 114 P.P.C. are fully attracted in the instant case. He further submitted that there is grave apprehension of tempering of prosecution evidence as well as absconsion of the accused/ respondent No.1 if bail facility is not cancelled. Learned counsel for the petitioner/ complainant argued that two independent witnesses have seen the accused/respondent No.1 near the place of occurrence. Learned counsel for the petitioner/ complainant submitted that CDR (call detail record) and USB data is also available, which connects the accused/ respondent No.1 with the offence. Furthermore, accused/ respondent No.1 is close relative of the deceased, notwithstanding taking the accused/ respondent No.1 to the Hospital he (accused/ respondent No.1) has fled away from the place of occurrence and remained absconder which speaks volume about his motive and the criminal and common intention of the accused/ respondent No. 1 with the accused nominated in the FIR and accused/ respondent No. 1 is equally responsibl for commission of murder of the deceased, hence bail facilit granted to the accused/ respondent No. 1 may kindly cancelled. With these submissions he finally prayed for acceptance of the instant criminal misc. petition by cancelling the bail facility extended to the accused/ respondent No. 1 by the learned Sessions Judge Gilgit, to meet the ends of justice.

Learned AAG is also of the view that learned Sessions Judge has passed the impugned order in a hasty and rushed manner leading to miscarriage of justice. Learned AAG relied on the contention of the learned counsel for the petitioner/ complainant. He further submitted that the presence of accused/ respondent No.1 at the place of occurrence and fleeing away from the scene of crime after the occurrence clearly shows the criminal intention of the accused/ respondent No.1. He too prayed for the cancellation of the bail extended to the accused/ respondent No.1 in the larger interest and dispensation of justice.

1. Conversely, the learned counsel for the accused/ respondent No.1 opposed the contention of learned counsel for the petitioner/ complainant and submitted that the learned Sessions Judge has rightly and aptly extended the privilege of bail to the accused/ respondent No. 1. Learned counsel for the accused/ respondent No.1 further submitted that the accused is not directly nominated in the FIR and he (accused/ respondent No.-1) has malafidely been implicated in the instant case for their ulterior motives on the ground that the accused/ respondent No.1 was present at the time of occurrence. No specific role has been attributed to the accused/ respondent No.1 in the FIR and no recovery has been made from the accused/ respondent No.1. Learned counsel for the accused/ respondent No.1 submitted that at bail stage tentative assessment is examined, not the deeper appreciation of the case is required. He further submitted that neither of the grounds for cancellation of bail is attracted in the instant case, since there is neither any chance of absconsion of the accused/ respondent No.1 nor tempering of prosecution evidence is endanger and there is no apprehension of repetition of any offence by the accused/respondent No.1. Regarding offence under sections 114 and 109 P.P.C. learned counsel for the accused/ respondent No.1 submitted that these two sections do not attract in the instant case rather have erroneously been inserted by the police and relied on a Judgment passed by the Honorable Supreme Appellate Court GB bearing Criminal Appeal No. 04/2023 in CPLA No.06/23 and 2011 SCMR 1543 [ Supreme Court of Pakistan].

2024 M L D 1874

[Gilgit Baltistan Chief Court]

Before Jahanzeb Khan, J

Ghulam Hussain and another---Petitioners

Versus

Muhammad Ali---Respondent

Criminal Misc. No. 341 of 2023, decided on 27th February, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Application for cancellation of bail, dismissal of---Admittedly the accused/ respondent had been charged in the case FIR for issuance of alleged cheque as described in the FIR---Allegedly an agreement deed had been affected between the parties outside the court and ostensibly it appeared that the petitioner/accused haddeceived the complainant and had not cooperated with the Investigation Officer, which was a condition of the compromise deed---However, neither the accused/respondent misused the bail facility nor there was any allegation that after getting bail the accused/respondent tried to temper with prosecution evidence and threatened the prosecution witnesses or interfered and hampered with the course of trial or there was an imminent apprehension that the accused/ respondent would leave the area and would abscond---Bail granted by the Sessions Judge was neither patently illegal, factually incorrect nor had resulted in miscarriage of justice---No reasonable ground existed for the cancellation of bail granted to the accused/respondent---Application for the cancellation of bail was dismissed, in circumstances.

2010 PCr.LJ 1099; 2010 PCr.LJ 1330; 1994 SCMR 1283 and 2008 YLR 328 ref.

2009 SCMR 786; 2004 SCMR 1160; 2005 SCMR 1539; 1994 SCMR 1064 and 2004 SCMR 231 rel.

Naeem Akhtar for the Petitioner.

Malik Sherbaz Addl. AG for the State.

Zulfiqar Hussain for Respondent.

Date of hearing: 27th February, 2024.

Order

Jahanzeb Khan, J.---Through the instant bail petition under section 497 (5) Cr.P. C, the petitioner(complainant)/ State has sought cancellation of bail granted to the accused/ respondent, by the learned District and Sessions Judge Gilgit, vide order dated 14-11-2023 in Bail Application No. 263/2023 in the FIR bearing No.55/2027 registered for the offence under section 389-F P.P.C., at Police Station City Gilgit.

1. The crux of the prosecution case as unfolded in the above mentioned FIR are that the accused/petitioner issued a cheque to the tune of Rs. 700,000/ - which was dishonored on presentation before the concerned Bank due to insufficient fund the account of the accused/ respondent. In the wake of written complaint of the complainant the instant FIR has been lodged against the accused/ respondents. After registration of FIR accused/ respondent was arrested and later on the accuse/ respondent was admitted to bail. After that during the trial the accused/ respondent remained absent from the Court and his bail was cancelled/ recalled by the trial court. The accused/ respondent filed bail application before the trial court which was dismissed vide order dated 07-11-2023. Feeling aggrieved from the order of learned trial court the accused/ respondent filed a Bail Petition bearing No.263/ 2023 before the learned Sessions Judge Gilgit, which was allowed by the learned Sessions Judge vide order dated 14-11-2023, subject to furnishing of bail bonds as described in the order. Subsequently, being dis-satisfied from the said order, the petitioner/ complainant preferred to question the impugned order passed by the learned Sessions Judge, hence this petition.

2. The learned counsel for the petitioner/ complainant Mr. Naeem Akhtar advocate assisted by learned Addl.AG Malik Sherbaz Khan, submitted that the order passed by the learned Sessions Judge Gilgit is illegal, erroneous and factually incorrect and tantamounts to miscarriage of justice as the learned trial Court didn't consider the case in accordance with facts and have failed to appreciate the law regarding grant of bail in non-bailable offences and the provision of section 497 Cr.P.C has been misinterpreted while granting bail to the accused/ respondent. Learned counsel for the petitioner/ complainant further submitted that the learned counsel for the accused/ respondent has mislead the learned Court of Sessions by submitting that compromise has been affected between the parties, whereas, no compromise between the parties is under process till now. Learned DAG submitted that the accused/ respondent is directly nominated in the FIR and admittedly committed a non-bailable offence by issuing a cheque which was dishonored, on presentation before the concerned bank. Learned counsel for the petitioner/ complainant submitted that the accused/ respondent has remained fugitive from law by hampering with the trial of the case as the accused/ respondent has remained absent during the trial of the case before the learned trial court. Learned counsel for the petitioner/ complainant relied on the following case laws in support of this version:

"2010 PCr.LJ 1099 [Peshawar]"

"2010 PCr.LJ 1330 [Peshawar]"

They, lastly submitted that the trial Court has acted the power not so vested to him under law, hence, on this sole ground the bail granted by the learned Sessions Court is liable to be cancelled/ recalled.

1. Conversely the learned counsel for the accused/ respondent Mr. Zulfiqar Hussain advocate ardently opposed and negated the contention of learned counsel for the petitioner/ complainant and learned Addl. AG and submitted that accused/ respondent was admitted to bail by the Judicial Magistrate vide order dated 02-11-2017. During this period compromise is affected between the parties outside of the court on 04-12-2017 and as per the contents of the compromise deed the matter in dispute was settled down/ resolved and the petitioner/ complainant was bound to withdraw the case FIR No.55/ 2017 and civil litigation from the court of competent jurisdiction, but later on the petitioner/ complainant betrayed/ deceived and did not withdraw the case from the court and did not cooperative with court in concluding the trial. Since the accused/ respondent was on bail, therefore, he proceeded to Dubai in connection with a job. When the accused/ petitioner was approached through sureties and came to know about the situation, he traveled back to Pakistan and surrendered himself before the court and moved a bail application, which was refused by the learned trial court vide order dated 07-11-2023. Feeling aggrieved from the said impugned order the accused/ respondent preferred a bail petition before the court of learned Sessions Judge which was allowed on merit vide order dated 14-11-2023. Learned counsel for the accused/ respondent further submitted that the petitioner/ complainant has not appeared before the trial court throughout the trial of the case and he/ the petitioner/ complainant is allegedly an absconder in a criminal case.

Coming to the grouds/ contents of the instant bail cancellation petition, the learned counsel for the accused/ respondent Mr. Zulfiqar Hussain advocate submitted that neither the petitioner/ complainant has agitated a single ground for cancellation of bail, nor the learned counsel for the petitioner/ accused Mr. Naeem Akhtar advocate discussed the grounds for the cancellation of bail, rather he levelled general allegations, which are not the grounds for the cancellation of bail. The learned counsel for the accused/ respondent placed reliance on the following case laws to strengthen his arguments:

"1994 S2MR 1283 [SC Pakistan]"

"2008 YLR 328 [Lahore]"

With these submissions, learned counsel for the accused/ respondent prayed for dismissal of the instant Cr. Misc. petition filed by the petitioner/ complainant.

2024 M L D 793

[High Court (AJ&K)]

Before Mian Arif Hussain, J

Muhammad Ashiq Khan and 4 others---Petitioners

Versus

Full Board of REvenue, Muzaffarabad and another---Respondents

Writ Petition. No. 18 of 2016, decided on 7th April, 2023.

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

----Art. 44---Writ petition---Proprietary rights---Scope---Case of the petitioner was that the land in dispute was duly allotted and after the demise of allottee, same was devolved in favour of petitioners but, District Collector, while dealing with the petition of the non-petitioner, revoked the said allotment---Additional Commissioner dealing with the appeal of the appellant turned down the order of District Collector, which was maintained by the Member (Judicial) Board of Revenue, but Full Board of Revenue, while dealing with the appeal, again revoked the allotment---Record showed that the original deceased owner, prior to allotment in question, had a piece of land measuring 35 kanal 1/2 marla and 20 kanal 7 ½ marla---Deputy Collector observed that "respondent", after purchasing the piece of land measuring 04 kanal 18 marlas from his father, claimed himself a owner in Deh and while suppressing said purchase succeeded to obtain proprietary rights regarding a piece of land measuring 18 kanal 03 marla---District Collector while narrating the said factual position had opined that under the Azad Jammu and Kashmir Grant of Khalsa Land (Amended) Act, 1989, a Nautor Kuninda stood entitled for proprietary rights, if his ownership in Deh was less than 30 kanals land but in the matter in hand ownership of the allottee was beyond the prescribed scale, so order of collector regarding allotment dated 18.03.1999 was not maintainable---Members of Full Board of Revenue, while examining the documents of parties brought on record, agreed with the findings of District Collector recorded vide order dated 18.02.2011 and observed that legal heirs of original owner failed to establish that the ownership of said owner was only 19 kanals and 10 marla, whereas, from the revenue record available at file it depicted that "at the time of preparation of file regarding allotment of proprietary rights, respondent was appointed as Girdawar who succeeded to attain proprietary rights beyond entitlement"---From the perusal of observation recorded by Members of "Full Board of Revenue" it was established that judgment impugned was based on evaluation of revenue record and in order to defeat the veracity and truthfulness of verdict of Members of Full Board of Revenue, petitioners had brought no documentary proof on record, rather some photocopies of revenue record had been annexed with the petition---Under law a photocopy could neither be treated as genuine nor the same could be relied upon, moreover, no documentary proof had been referred to on behalf of petitioners, whereas, on behalf of non-petitioner No.2, certified copies of relevant documents in support of their claim had been brought on record, meaning thereby that petitioners failed to point out any illegality in the judgment impugned through bringing a relevant proof in support of their claim---Moreover, in the matter in hand, all the concerned revenue hierarchy from Deputy Commissioner to Full Board of Revenue, in terms of nature of lis, was a necessary party and admittedly, the order of Deputy Collector dated 18.02.2011 was also against the petitioners but neither the Deputy Collector had been arrayed as a party nor his order dated 18.02.2011 had been assailed---Jurisdiction exercised by the High Court (AJ&K) in a writ petition was limited in nature and the High Court, while invoking writ jurisdiction, could not sit upon the judgment of subordinate Courts or local authorities or tribunal etc. as a court of appeal---Writ petition being devoid of substance was dismissed, in circumstances.

2013 SCR 222; 1996 CLC 1502; 199 CLC 840 and 1996 MLD 355 ref.

Abdul Aziz Ratalvi for Petitioners.

Sardar Ghulam Mustafa Khan for Respondents.

Judgment

Mian Arif Hussain, J.---Through the captioned writ petition, addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 197, the petitioners herein have assailed the propriety of judgment of Full Board of Revenue dated 12.01.2016, with the assertion that proprietary rights of a piece of land comprising survey No.181, measuring 02 kanal 18 marla situate at village Anohi, Tehsil Kotli, were sanctioned in favour of their father Mulk Dad Kan under Nautor Act 1989, on 31.05.2000 and mutation No.186 was sanctioned accordingly and subsequently after the demise of their father mutation No.196 was sanctioned in favour of legal heirs of the deceased. It is claimed that due to family dispute between the parties, after elapsing a period of 8/9 years, non-petitioner No.2 (Ahlian e Deh through Ali Daad Khan), malafidely challenged the proprietary rights before the Commissioner from where the file was remanded to the Collector, who, while dealing with the us revoked the proprietary rights vide order dated 18.02.2011. It is claimed that petitioners herein challenged the said order and the Additional Commissioner vide order dated 30.07.2012, while setting aside the order of Collector District Kotli dated 18.02.2011, maintained the order of District Collector dated 31.05.2000, and the said order of Additional Commissioner was also maintained by the Member (Judicial) Board of Revenue, vide order dated 21.02.2014, but full Board of Revenue, the non-petitioner No.1 herein, while converting the appeal of non-petitioner No.2 herein into revision petition without any legal justification has accepted the appeal of respondent No.1 herein, resultantly, the proprietary rights sanctioned in favour of petitioners herein have been ordered to be revoked vide order dated 12.01.2016 which being against the law and facts is liable to be quashed.

After inviting the objections from the non-petitioners petition in hand vide order dated 27.03.2017 was ordered to be admitted for regular hearing and no-petitioners were asked to file written statement etc.

On behalf of respondent No.2, the learned counsel submitted that the comments already submitted be treated a written statement as well which was allowed. In the objections/comments, the claim of the petitioners has been refuted in toto on legal and factual grounds as well.

It is pertinent to mention here that an application for placing certain documents on record has also been allowed.

Arguments heard.

The learned counsel representing the petitioners, herein, after narration of facts of the case at some length pressed into service that under the Nautor Act, the proprietary rights of piece of land were duly sanctioned in favour of predecessor of petitioners herein, but while amalgamating the allotment of Muhammad Nawaz with the allotment of petitioners herein, a wrong perception was inferred and leveling allegation of preparation of forged document, non-petitioner No.2 herein succeeded to create confusion in the minds of Senior Revenue Officers and ultimately, Full Board of Revenue, in a state of confusion, without attending the legal and factual aspects of the case has recorded the judgment impugned herein, result of which, the petitioners herein have been deprived of their legal and vested rights, hence, by allowing the petition in hand, the order impugned herein be quashed, resultantly, order of the District Collector dated 31.05.2000 be restored.

Conversely, Sardar Ghulam Mustafa Khan, advocate representing the respondent no.2 herein, while defending the judgment impugned herein argued with vehemence that petitioners herein in the light of revenue record were not entitled to be sanctioned the piece of land in dispute but one of the petitioner being Revenue Official, while preparing a forged document and suppressing the factual position of earlier allotment succeeded to attain the proprietary rights regarding the disputed piece of land and the learned District Collector vide order dated 18.02.2011 and learned members of full board of revenue vide order dated 12.01.2016, while evaluating the oral and documentary evidence have rightly reached the just conclusion, so, there exists no space to dive deep into factual controversy. The learned counsel argued that the writ petition in hand being hit by certain legal lacunas is also liable to be dismissed. In this regard, the learned counsel pointed out that controversy in hand emerged from the order of the District Collector which has attained finality but the petitioners herein have not impleaded the Deputy Commissioner, Additional Commissioner, Board of Revenue as a party in the line of non-petitioners, hence, this soul ground is sufficient to dismiss the petition in hand. In this regard the learned counsel placed reliance on the following case law:

(i) 2013 SCR 222;

(ii) 1996 CLC 1502;

(iii) 199 CLC 840.

In a case reported as 2013 SCR 222, it is observed that Board of Revenue was a necessary party and in absence of necessary party no effective order could be passed. Petitioners failed to make out any question of public importance resultantly petition for leave to appeal was dismissed by Hon'ble apex Court. In a case reported as 1996 CLC 1502 it is observed that question of non-impleading of necessary parties in constitutional petition is of vital importance as no effective writ could be issued in absence of such parties. Similarly, in a case law reported as 1999 CLC 840, it is observed that if public functionary whose order is challenged has not been impleaded as party writ is not competent.

The learned counsel for non-petitioner No.2 further pointed out that with the petition in hand certified copies of relevant record have not been annexed. In this regard case law reported as NLR 2015 326 was relied upon wherein it is observed that without arraying the certified copy of impugned order petition stands incompetent. The learned counsel submitted that while exercising the writ jurisdiction, the High Court cannot sit upon the judgments of subordinate Courts or the local authorities or tribunals as a Court of appeal and in this regard case law reported as 1996 MLD 355 speaks volume, lastly, the learned counsel solicited dismissal of petition with costs.

Having heard the learned counsel of both sides, I have also gone through the record made available at the file. Case law referred to and relied upon on behalf of non-petitioner No.2 has also been examined.

The case of the petitioners is that in favour of their predecessor, a piece of land in dispute was duly sanctioned and subsequently after the demise of allottee, his legacy was devolved in favour of petitioners herein but initially, District Collector Kotli, while dealing with the petition of the non-petitioner No.1 herein issued an order to revoke the said allotment vide order dated 18.02.2011. It is claimed that the learned Additional Commissioner dealing with the appeal of the appellant herein turned down the order of District Collector Kotli dated 18.02.2011, result of which the order of the District Collector dated 31.05.2000, stood restored and the said order was kept intact by the learned Member (Judicial) Board of Revenue but full board of Revenue, while dealing with the appeal of non-petitioner No.2 herein has again revoked the said allotment vide order dated 12.01.2016 impugned herein.

In their petition, the main claim of the petitioners herein is that the petitioners were not owners and possessors of beyond the prescribed scale but while adding a piece of land recorded in favour of Muhammad Nawaz in the share of allottee Full Board of Revenue has revoked the allotment, hence, by examining the relevant documents, the reality can be adjudged.

From the perusal of judgment impugned herein recorded by Full Board of Revenue, it depicts that earlier learned District Collector Kotli while entertaining the complaint of respondent No.2 herein observed that "after thorough examination of Misl-e-Haqiat, it reflects that father of Muhammad Ashiq and others named Mulk Daad Khan" prior to allotment in question had a piece of land measuring 35 kanal 1/2 marla and 20 kanal 7-1/2 marla situated at village Agound.

The learned Deputy Collector further observed that "respondents" after purchasing the piece of land measuring 04 kanal 18 marla from his father, claimed himself a owner in Deh and while suppressing said purchase succeeded to obtain proprietary rights regarding a piece of land measuring 18 kanal 03 marla. The learned District Collector while narrating the said factual position has opined that under the Azad Jammu and Kashmir grant of Khalsa Land (amended) Act, 1989, a Nautor Kuninda stands entitled for proprietary rights, if his ownership in Deh is less than 30 kanal land but in the matter in hand ownership of the allottee was beyond the prescribed scale so order of collector regarding allotment dated 18.03.1999 is not maintainable.

The learned members of Full Board of Revenue, while examining the documents of parties brought on record agreed with the findings of learned District Collector recorded vide order dated 18.02.2011 and observed that legal heirs of "Mulk Daad" remained fail to establish that the ownership of "Mulk Daad" was only 19 kanal and 10 marl, whereas, from the Revenue Record available at file it depicts that "at the tirne of preparation of file regarding allotment of proprietary rights, respondent was appointed as Girdawar who succeeded to attain proprietary rights beyond entitlement".

From the perusal of observation recorded by learned members of "Full Board of Revenue" it establishes that judgment impugned herein is based on evaluation of revenue record and in order to defeat the veracity and truthfulness of verdict of learned members of Full Board of Revenue, petitioners herein have brought no documentary proof on record, rather a some photocopies of revenue record have been annexed with the petition. Under law a photocopy neither be treated as genuine nor the same could be relied upon, moreover, during the course of arguments, no documentary proof has been referred to on behalf of petitioners, whereas, on behalf of behalf of non-petitioner No.2, certified copies of relevant documents in support of their claim have been brought on record, meaning thereby, that petitioners herein miserably failed to point out any illegality in the judgment impugned herein through bringing a relevant proof in support of their claim.

2024 M L D 1005

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

Mohib Ijaz---Petitioner

Versus

Mujtaba-ul-Rehman and 3 others---Respondents

Criminal Revision No. 57 of 2023, decided on 30th January, 2024.

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

----Ss. 203-E & 204---Azad Penal Code (XLV of 1860), Ss. 492-B & 492-C---Forcibly dispossessing any lawful owner/occupier---Complaint---Initiation of proceedings against the accused---Doctrine of dispensation of criminal justice---Petitioner /accused assailed order of initiating proceedings against him and others on a complaint filed by the respondent---Record revealed that demolishing of two steps of stairs by one of the accused persons, was oozing from preliminary inquiry report submitted by the concerned SHO---Thus, prima facie case itself was floating from surface of record constituting sufficient ground to issue process in furtherance of the complaint---Discarding complaint in presence of sufficient grounds was not warranted by law and was against the doctrine of dispensation of criminal justice---Application qua registration of FIR moved by the petitioner already stood rejected by the Justice of Peace and though said order was impugned before the High Court, however, dislodging the complaint amounted to non-suiting and making the complainant armless, that too when domestic probe ex-facie strengthened the stance of the complainant / respondent---Criminal revision filed by the accused was dismissed, in circumstances.

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

----Ss. 265-K & 204---Complaint---Initiation of proceedings against the accused---Scope---Where Trial Court admits the complaint and issues bailable warrants against accused persons, they (accused persons) have ample opportunity to move an application under S.265-K of the Criminal Procedure Code, 1898, in case they feel that there is no possibility of conviction in the matter, even if the evidence purposed to be produced in Court is so produced.

2016 PCr.LJ 601 ref.

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

----S.204---Complaint---Initiation of proceedings against the accused---Scope---Admitting a complaint and issuance of process under S.204 of the Criminal Procedure Code, 1898, is subject to having sufficient grounds for proceeding , meaning thereby that presence of facts or evidence prima- facie constitute an offence to enable the Court to issue process.

PLD 2008 Lah. 441 ref.

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

----S.204---Complaint---Initiation of proceedings against the accused---Scope---Process within contemplation of S.204 of the Criminal Procedure Code, 1898, can be issued upon existence of sufficient grounds to be contemplated on basis of cursory evidence---Formation of opinion by Court does not require full dress rehearsal nor anticipated failure of case of complainant would stand as an impediment .

2018 PCr.LJ 607 ref.

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

----S. 204---Complaint---Initiation of proceedings against accused---Scope--- Process is issued on the basis of prima-facie analysis---Prima-facie case only means that there is ground for proceedings and it is not the same thing as proof which comes later when the Trial Court has to find whether accused is guilty or not guilty

PLD 2009 Lah 444 ref.

Sheikh Noman Akhtar for Petitioner.

Ch. Nasir Masood for Respondents.

Order

Criminal Revision No.57/2023, Brefet of merit fails.

Syed Shahid Bahar, J.---The titled revision petition / appeal has been directed against the order dated 10.10.2023 passed by Additional Sessions Judge, Kotli, whereby, complaint filed by the non-petitioner No.1 (Mujtaba Rehman) has been declared as maintainable by the said Court and further proceedings in the case has been initiated.

1. Brief facts forming background of the instant revision / appeal are that Mujtaba Rehman filed complaint under Section 203-E, Cr.P.C for the offence under Section 492 B-C, APC, against the accused-petitioner and other before the learned Additional Sessions Judge, Kotli, wherein it has been prayed that the proceedings under law may be initiated against the accused-persons and they may be punished in accordance with law. Upon filing of the complaint, objections have been filed on behalf of the accused/petitioner etc. through their counsel before the said Court, in which the accused/petitioner and other co-accused alleged that the said complaint is baseless, fictitious, against the law and facts and against the procedure, thus, the same may be dismissed. During proceedings to judge the claim of the plaintiff the learned court below also inquired the matter through SHO Police Station Kotli, the report of inquiry of the said police officer shown that some part of ladders/steps have been damaged/demolished. The said Court after perusal of report of SHO and keeping in view the stance taken in tile application/complaint declared that the prima-facie the case of the complainant is arguable and maintainable and proceedings have been initiated against the accused-petitioner etc. through the impugned order dated 10.10.2023, hence, instant revision petition/appeal.

2. Sheikh Noman Akhtar, the learned counsel for the petitioner contended that the impugned order dated 10.10.2023 of the court below/trial court is against the law and facts anc is liable to be recalled. He vehemently contended that the learned trial Court has failed to take into account this legal aspect of the case that the land in dispute is under the lawful possession of the appellant and proforma-respondents, moreover, the real-respondents have also filed an application under Section 22-A Cr.P.C for the registration of criminal case under Section 447 APC which stand dismissed vide judgment dated 16.06.2022 where against the real-respondent availed a further remedy before this Court which is still pending for adjudication, so, in such eventuality the real-respondent is barred under the law to avail subsequent remedy under the same law, hence, the impugned order is liable to be set-aside. He forcefully contended that the trial Court has failed to account this legal aspect of the case that the contents of the inquiry report clearly reveals that the dispute amongst the parties is relating to an easement right but the law dealing with such complaint is to curb the situation likewise grabbing or occupying the land itself. Finally, the learned counsel prayed that the impugned order dated 10.10.2023 may be set-aside and the complaint filed by the real respondent may be dismissed/rejected.

3. On the other hand, Ch. Nasir Masood the learned counsel for the real-respondent contended that the learned trial Court has passed the order in accordance with law, which needs no interference by this Court. He defended the impugned, order on all counts and prayed for dismissal of the instant petition/appeal.

4. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.

5. At the outset preliminary inquiry report reveals as infra:-

1. Demolishing of 2 steps or stairs is oozing from record by one Ejaz Miran, petitioner.

2. Thus, prima-facie case itself is flooting from the surface of record constituting sufficient ground to issue process in furtherance of the Complaint. Discarding Complaint in presence of sufficient grounds is not warranted by law and is against the doctrine of Dispensation of Criminal Justice. No illegality or perversity is found in the order impugned.

(underlining is mine)

1. Application qua registration of FIR has already stood rejected by the justice of Peace, although said order is yet impugned before this Court but in this state of affairs by dislodging the complaint amounts to non-suit and make armless the complainant, that too when domestic probe ex-facie strengthen the stance of the complainant/respondent.

2. It may be stated here that where trial Court admitted the complaint and issued bailable warrants against accused persons, accused persons have ample opportunity to move an application under Section 265-K, Cr.P.C in case they feel that there is no possibility of conviction in the matter, even if the evidence purposed to be produced in Court is so produce.

3. Admitting a complaint and issuance of process under Section 204, Cr.P.C is subject to having sufficient ground for proceeding, meaning thereby that presence of facts or evidence prima-facie constituting an offence to enable the Court to issue process.

4. Process within contemplation for section 204 Cr.P.C can be issued upon existence of sufficient grounds to be contemplated on basis of cursory evidence, formation of opinion by Court does not require full dress rehearsal nor anticipated failure of case of complainant would stand an impediment.

5. Process is issued on the basis of prima-facie analysis. Prima-facie case only means that there is ground for proceedings, it is not the same thing as proof which comes later when the trial court has to find whether accused is guilty or not guilty.

6. So far as the objection raised by the complainant regarding maintainability of the lis is concerned same is repelled. As words appeal/revision are clearly written in the title of the memo of lis as well as in prayer clause, thus, lis has rightly been taken up as criminal revision. Albeit it is not appropriate to insert simultaneously the word like appeal/revision or vice versa. Appeal and revision are statutory remedies and having their own pedestal and grounds of Attack. It is also against the norms of law of pleadings, this practice is deprecated and should be avoided.

On the above multiple reasons, finding no force in the instant revision petition, hence, same is dismissed. File shall be kept in archive.

MQ/1/HC(AJ&K) Revision dismisse

2024 M L D 1793

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

Noman Shahzad---Petitioner

Versus

Ayaz Khadim and 3 others---Respondents

Criminal Revision No. 44 of 2023, decided on 29th January, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Azad Penal Code (XLV of 1860), Ss. 324, 452, 353, 337-A, 337-F, 430, 186, 427, 147, 148 & 149---Murderous assault---Petition for cancellation of bail dismissed of---Pre-arrest bail was allowed to the petitioner, which later on was confirmed---Validity---Bail matters are to be decided in the light of the material collected by police during investigation of the case---Credibility, scrutiny and truthfulness of the witnesses are to be adjudged by the Trial Court at the time of the appreciation of evidence after the conclusion of trial---Allegation leveled against the accused/respondents alongwith other co-accused was that they entered in the office of the complainant (Passport Office), locked the door of office, hit the complainant with fists, kicks and iron clips; threw things hitting the head and face of complainant and also broke official furniture and tore official documents---Cursory perusal of police record showed that the accused/respondents were not required for recovery or investigation---Whether the accused/respondents were involved in the alleged occurrence or not, was a matter of further probe---Furthermore, the record showed that the complainant was also involved in making fake and bogus passport and he was also required by the police in a case and was also a fugitive from law---Case of the accused-respondents was not covered by the prohibitory clause of S.497, Cr.P.C.---Thus, the impugned bail confirmation order was in accordance with law, which needed no indulgence by the High Court---Once the bail is granted to the accused by a Court of competent jurisdiction, very strong grounds and reasons are required to cancel the same---Petitioner had failed to raise any plausible reason to cancel the bail confirming order of the accused/respondents---No illegality, irregularity or perversity had been found in the impugned bail order---Petition stood dismissed, in circumstances.

Muhammad Ali Rathore for the Petitioner.

Ch. Abdus Salam for accused-respondents.

Abdul Qayyum Sabri, A.A.G. for the State.

Order

Syed Shahid Bahar, J.---The above titled revision petition has been directed against the order dated 20.03.2.023 passed by Additional District Court of Criminal Jurisdiction, Rawalakot, whereby interim bail of the accused-respondents was confirmed.

Brief facts forming background of the instant revision petition are that a case bearing FIR No.306/22 under sections 324, 452, 353, 337AF, 430, 186, 427, 147, 148, 149 APC and Section 20 of EHA was registered against the accused-respondents along with other co-accused at Police Station Rawlakot on 16.09.2022. After registration of the case, the, accused-respondents herein filed pre-arrest bail application before Additional District Court of Criminal Jurisdiction Rawalakot, which was initially allowed and later on was confirmed through the impugned order dated 20.03.2023, hence, this revision petition.

I have heard the learned counsel for the parties as well as the learned A.A.G for the State; and gone through the record of the case with care.

It may be stated here that bail matters are to be decided in the light of the material collected by police during investigation of the case. Credibility, scrutiny and truthfulness of the witnesses are to be adjudged by the trial Court at the time of the appreciation of evidence after conclusion of trial. This Court-while deciding bail application(sic) section 161, Cr.P.C or by the Court and other incriminating material brought by the prosecution including the recoveries etc. are to be taken into account.

2024 M L D 1951

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

Jawad Muzaffar---Petitioner

Versus

The State through Advocate General of the State of Azad Jammu and Kashmir Muzafarrabad and 3 others---Respondents

Petition No. 344 of 2024, decided on 27th August, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 249-A, 265-K, 561-A & 154---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Art. 44---Quashing of FIR---Dispute of civil nature---Alternate remedy---Petitioner/accused sought quashing of FIR registered against him on the ground that the matter was of civil nature which could only be agitated and adjudicated by the competent Court of civil jurisdiction---Validity---Record showed that petitioner had previously challenged the same FIR by invoking extraordinary jurisdiction of the Court conferred under Art. 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and said petition was dismissed by the Court---Subsequently, PLA was also dismissed by the Supreme Court with the direction to the investigating agency to probe into the matter---Bare reading of S.561-A, Cr.P.C showed that High Court could not embark upon the investigation proceedings in order to annul the same, and such-like application asking for quashment of investigation proceedings per se was not maintainable---When police report under S.173, Cr.P.C, was submitted before the Court concerned, question of annulment/quashment of FIR becomes irrelevant and redundant for all its practical purpose, therefore, proper recourse and remedy available to an accused is to invoke the jurisdiction of the trial Court to get himself/herself exonerated under S.249-A, Cr.P.C or under S.265-K, Cr.P.C, as chapter of quashment of FIR stands closed after submission of police report under S.173, Cr.P.C---Petition was meritless, devoid of any force and not maintainable, which was dismissed accordingly.

Shahnaz Begum v. High Courts of Sindh and Balochistan PLD 1971 SC 677; Federal Investigation Agency v. Syed Hamid Ali Shah PLD 2023 SC 265; Mohammad Abbasi v. SHO, Bhara Kahu PLD 2010 SC 969; Director General Anti-Corruption Establishment, Lahore v. Mohammad Akram Khan PLD 2013 SC 401 and Shahid Iqbal v. Station House Officer 2020 PCr.LJ 1201 ref.

Haroon Abbasi, Junior to Saqib Ahmed Abbasi for the Petitioner.

Shahzad Shafi Awan and Mehmood Baig for Respondent No. 3.

Ch. Mohammad Manzoor, A.A.G for the State.

Judgment

Syed Shahid Bahar, J.---The instant petition has been filed under Section 561-A Cr.PC by the petitioner for annulment of the FIR bearing Illat No.322/2023 dated 10.07.2023.

1. The main grounds of attack raised by the petitioner in the memo. of writ petition are that impugned FIR has been lodged against the petitioner with mala fide intention and on the basis of fake and fabricated claim, therefore, the investigation agency in cahoots with complainant and on the instigation of the latter chalked the impugned FIR which is outrageous, preposterous and egregious; hence the same is liable to be set-aside.

2. Notices were issued to the other side for filing objections and objections on behalf of complainant have been filed.

3. Mr. Haroon Abbasi advocate, junior to the learned counsel for petitioner reiterated the grounds already taken in the writ petition, he vehemently contended that the criminal proceedings against the petitioner are not sustainable. The matter is even otherwise of civil nature which could be only agitated and adjudicated by the competent Court of civil jurisdiction. The criminal law could not be set in motion at random pertaining to case of civil nature. Furthermore, he submitted that the alleged occurrence otherwise has taken place in Islamabad, thus, investigating agency dealing with the matter has got no jurisdictional competence to chalk the FIR and investigate the matter. The learned counsel strongly contended that the FIR is liable to be quashed.

4. While on the other side the learned AAG contended that all the proceedings in shape of FIR and investigation are being carried out completely in accordance with law and in line with the direction of the Hon'ble Supreme Court given in the judgment dated 06.12.2023. He submitted that the application is otherwise in the eye of law is not maintainable and is liable to be dismissed.

5. Mr. Shahzad Shafi Awan and Mehmood Baig appearing on behalf of complainant Sheikh Waqas by controverting the arguments advanced by the learned counsel for petitioner strongly contended that the petition under Section 561-A Cr.P.C. is not competent. They contended that the petitioner has previously challenged the same FIR by filing writ petition before this Court which was decided on 25.08.2023. They drew the attention of the Court towards facsimile of the judgment of this Court appended with the parawise comments. The learned counsel further contended that the aforesaid judgment of this Court was challenged by the petitioner before the Hon'ble Supreme Court by way of filing PLA which was dismissed with the direction to the relevant agency to probe and finalize the investigation in accordance with law. Finally, they prayed for dismissal of the petition.

6. Heard, record perused. After going through the judgment rendered by this Court in Writ Petition No.2444/2023 dated 25.08.2023, it transpires that the petitioner previously has challenged the FIR No.322/23 by invoking extraordinary jurisdiction of this Court conferred under Article 44 of the AJ&K Interim Constitution, 1974 and the aforesaid petition was dismissed by this Court. Subsequently, PLA was also dismissed by the Hon'ble Supreme Court vide order dated 06.12.2023 with the direction to the investigating agency to probe into the / matter. Keeping in view the overall circumstances of the case, it transpires that the petitioner has twice attempted to get indulgence of this Court into the matter previously by filing writ petition and subsequently by filing the instant petition under Section 561-A of the Code of Criminal Procedure, 1898;

Constitutional Jurisdiction or Remedy under Section 561-A, Cr.P.C for Quashment of an FIR.

1. It is abundantly clear from bare reading of Section 561-A Cr.P.C that High Court cannot embark upon the investigation proceedings in order to annul the same, such-like application asking for quashment of investigation proceedings per se is not maintainable. Jurisdiction of High Court to make an appropriate order under Section 561-A Cr.P.C requires to secure the ends of justice and it can only be exercised pertaining to judicial or Court proceedings while rest of the proceedings relating to proceedin of any other authority or for that matter department such as registration of an FIR or investigation proceedings of the Police Department is immune from interference by this Court under Section 561-A Cr.P.C.1 Where before submission of police repprt (whether interim or complete) under Section 173 Cr.P.C to the Court concerned, the accused person thinks that and FIR has been registered and the investigation is being conducted, without lawful authority, he/she may have recourse to the constitutional jurisdicticm of the High Court under Article 44 of the Interim Constitution for judicial review of the said acts of the police officers.2

2. Another important aspect of the jurisdictional compass of this Court is when police report (whether interim or complete) under Section 173 Cr.P.C is submitted before the Court concerned, question of annulment/quashment of an FIR becomes irrelevant and redundant for all its practical purposes thereafter proper recourse and remedy available to an accused is to invoke the jurisdiction of the trial Court to get himself/herself exonerated under Section 249-A, Cr.P.C (in case of trial by Magistrate) or under Section 265-K, Cr.P.C (in case of trial by Sessions Court) as chapter of quashment of FIR stands closed after submission of police report under Section 173 Cr.P.C 3

(emphasis supplied)

1. With due respect point quo maintainability of quashment of sole FIR (which is yet not in progress) has not yet been resolved specifically. Hon'ble Supreme Court in the case titled "Atta-ur-Rehman v. Anjum Javid and others" [2014 SCR 493] while dealing with the proposition whether direction could be given by High Court under Section 561-A Cr.P.C for registration of an FIR held;

2024 M L D 10

[Islamabad]

Before Arbab Muhammad Tahir, J

HAMID NASRULLAH RANJHA---Petitioner

Versus

The CIVIL JUDGE ISLAMABAD-WEST and others---Respondents

Writ Petition No. 2665 of 2022, decided on 16th March, 2023.

Specific Relief Act (I of 1877)---

----Ss. 12 & 23---Limitation Act (IX of 1908), Arts. 113 & 181---Civil Procedure Code (V of 1908), S. 12(2)---Suit for specific performance of agreement to sell---Fraud, collusion and misrepresentation---Petition for setting aside of judgment and decree under S. 12(2), C.P.C., passed in favour of respondent, on the plea of fraud, collusion and misrepresentation was dismissed---Scope---Plaintiff filed suit for specific performance of agreement to sell dated 15.02.2004---Defendant No. 1 appeared in person, tendered affidavit and got recorded statement to the effect that he had no objection if the suit of the plaintiff was decreed---On said statement of defendant No. 1, suit was decreed---Petitioner claimed that agreement to sell dated 15.02.2004 was a forged document, prepared in back date to frustrate his agreement to sell dated 13.04.2006---Validity---Petitioner was in possession of the original title documents of the plot (original Provisional Offer of Allotment Order) dated 26.01.2004---Record showed that the trial Court passed the impugned order without considering as to whether Provisional Offer of Allotment Order retained status of a title document; whether an agreement to sell could be made on the basis of Provisional Offer of Allotment Order; the consequences of the defective plaint, affidavit and the statement of the defendant did not contain the details of the stated agreement; the worth of the unregistered agreement to sell inter-se the plaintiff and the defendant dated 15.11.2004; the allegation of fraud and misrepresentation in presence of defective plaint, affidavit and the statement of the defendant and the fact of delay in approaching the Court by the plaintiff for seeking decree of specific performance of an agreement could not be resolved without affording the parties a chance to adduce their respective case/plea in a proper manner; the claim in suit for specific performance of agreement to sell was to be assessed on the touchstone of Art. 113 of the Limitation Act, 1908; the period of limitation for filing application under S. 12(2), C.P.C. was to be assessed in terms of Art. 181 of the Limitation Act, 1908; the exercise of jurisdiction by the Court in terms of S. 23 of the Specific Relief Act, 1877 for decreeing the suit for specific performance of contract was discretionary in nature and the discretion was not to be exercised arbitrarily but should be based on sound legal principles after analyzing and gauging the circumstances; the Court while deciding a matter, even on compromise or on a conceding statement, had to see the legality and genuineness of the issue brought before it; and in case of contest by the third party, the order and decree by operation of its own term would become redundant particularly when there was allegation of fraud and misrepresentation---Impugned order was set aside, as a result of which application of petitioner was allowed with the direction that main suit shall be deemed pending at the stage where it had been prior to passing of impugned decree and order and petitioner is afforded an opportunity to join proceedings in the suit being necessary and proper party---Constitutional petition was allowed.

2002 SCMR 2003; 1996 SCMR 1524 and 1993 SCMR 662 ref.

Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2022 SCMR 933; Misbah Khanum v. Kamran Yasin and another 2022 SCMR 1629; Lahore Development Authority v. Arif Manzoor Quireshi 2006 SCMR 1530 and Mrs. Anees Haider v. S. Amir Haider 2008 SCMR 236 rel.

Aziz Ahmad Wajahat for Petitioner.

Ch. Sajid Abdullah Sraa for Respondents.

2024 M L D 75

[Islamabad]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

Commander (R) MUHAMMAD RIAZ---Appellant

Versus

The CHIEF OF NAVAL STAFF, NAVAL HEADQUARTERS and others--Respondents

R.F.A. No. 174 of 2020, decided on 30th August, 2023.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and injunction---Inheritance, claim of--- Asset not available in lifetime of deceased---Appellant/plaintiff claimed his legal share in suit property left by his deceased son who died during service in Pakistan Navy---Suit filed by appellant/plaintiff was dismissed by Trial Court---Validity---There was no plot or house that was transferred or transferable to deceased during his lifetime as a service benefit---Deceased was not in a position to own or exchange a house or plot in Navy Housing Scheme during his lifetime---House in Navy Housing Scheme was transferable to deceased only after his retirement and not before---In case of a member's death, house was to be transferred to his widow in terms of clause 19 of the terms and conditions issued by Navy Housing Scheme---There was no question of inheritance, as deceased was not owner of any plot or house in Navy Housing Scheme at the time of his death---Terms and conditions issued by Navy Housing Scheme had a contractual force and it was on such basis that a house was allotted to respondent/widow of deceased and not to all his legal heirs---It was in fulfillment of the terms and conditions issued by Navy Housing Scheme that the suit property was allotted to respondent/widow of deceased officer---High Court declined to interfere in judgment and decree passed by Trial Court---Appeal was dismissed, in circumstances.

Shahnaz Parveen v. Javed Yaqoob 2020 MLD 638; Wafaqi Hakoomat-e-Pakistan v. Awamunnas PLD 1991 SC 731 and Zaheer Abbas v. Pir Asif 2011 CLC 1528 rel.

Shahid Mehmood Langrial for Appellant.

Liaqat Ali Qasim for Respondent No. 7.

Raja Muhammad Jawad Arslan, Assistant Attorney General.

Captain Imtiaz Hussain, Director (Legal), Naval Headquarters.

2024 M L D 120

[Islamabad]

Before Tariq Mehmood Jahangiri and Sardar Ejaz Ishaq Khan, JJ

Mst. NAZO BIBI and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 215 and 209 of 2021, decided on 15th August, 2022.

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

----S. 9(c)--- Narcotic substance, recovery of---Appreciation of evidence---Chras weighing 42 kilograms and Opium weighing 13.20 kilograms were recovered from the possession of accused persons---Trial Court convicted both the accused person and sentenced one for imprisonment for life and the other for six years---Validity---When prosecution was able to prove its case on its salient features then unnecessary technicalities could not be allowed to hamper the very purpose of law on the subject---Recovery of huge quantity of narcotics, separating samples from each packet in a prescribed manner and sending them to Chemical Examiner, report of Chemical Examiner and statements of prosecution witnesses conjointly left no room to a different conclusion than what had been arrived at by Trial Court---High Court declined to interfere in conviction and sentences awarded by Trial Court to accused persons---Appeal was dismissed, in circumstances.

Shazia Bibi v. The State 2020 SCMR 460; Salah-ud-Din v. State 2010 SCMR 1962; Zafar v. The State 2008 SCMR 1254; Kashif Amir v. State PLD 2010 SC 1052; Anwar Shamim and another v. The State 2010 SCMR 1791; Muhammad Shabbir and others v. The State 2020 SCMR 1206; Faisal Shahzad v. The State 2022 SCMR 905; Ajab Khan v. The State 2022 SCMR 317; Matti Ullah v. The State 2020 SCMR 1222; Aijaz Ali Rajpar v. The State 2021 SCMR 1773 and Mian Khalid Perviz v. The State through Special Prosecutor ANF and another 2021 SCMR 522 rel.

Zaheer Ullah Jan and Shan Zeb Khan for Appellants Nos. 1 and 2.

Rana Zulfiqar Ali, S.S.P. ANF for Respondents Nos. 1 and 2.

2024 M L D 261

[Islamabad]

Before Mohsin Akhtar Kayani and Sardar Ejaz Ishaq Khan, JJ

SHELL PAKISTAN LIMITED, KARACHI through Authorized Attorney---Appellant

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman, Islamabad and 2 others---Respondents

Intra Court Appeal No. 130 of 2015, decided on 31st August, 2023.

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

----Ss. 15-A & 51---Municipal Administration Ordinance (X of 1960), S. 33---Islamabad (Control of Advertisements) Regulations, 1977, Reglns. 9(3) & 14--- Notification S.R.O. 1022(I)/2014, dated 12.11.2014---Charges for advertisements---Recovery notices---Appellant company was aggrieved of demand notices issued by Capital Development Authority (CDA), National Highway Authority (NHA), Union Councils and Metropolitan Corporation of Islamabad (MCI) for advertisement charges by way of signboards, billboards, hoardings, etc.---Validity---Advertisement charges were not qualified as taxes under Islamabad (Control of Advertisements) Regulations, 1977, revised in year 2008 and notification S.R.O. 1022(I)/2014, dated 12.11.2014, which were void ab initio for non-compliance with mandatory conditions stipulated in S. 15-A of Capital Development Authority Ordinance, 1960 read with S. 33 of Municipal Administration Ordinance, 1960, for imposition of taxes---Increase in advertisement rates was not justified as fee and Islamabad (Control of Advertisements) Regulations, 1977, revised in year 2008 and notification S.R.O. 1022(I)/2014, dated 12.11.2014 were declared to be illegal for falling foul of quid pro quo principle for charging of fees by statutory bodies, given the rationale expressed in Regln. 14 of Islamabad (Control of Advertisements) Regulations, 1977, itself as a general increase in revenue instead of an increase in the cost of service, and given exorbitant increase in advertisement rates without any foundational basis demonstrated by CDA or MCI identifying its "cost center" for regulation of advertisement activity--- Provisions of Islamabad (Control of Advertisements) Regulations, 1977 in their original formulation were valid as were in furtherance of the power to make regulations under S. 51 of Capital Development Authority Ordinance, 1960 in furtherance of its municipal functions---CDA or MCI, as the case may be, might have revised advertisement rates, provided that, rates of fee must bear an objectively demonstrable direct correlation to cost of administration of Islamabad (Control of Advertisements) Regulations, 1977--- Cost center mathematical exactitude was not required but wide margin beyond demonstrated cost of regulation could not be valid---MCI's/Union Councils' demands for advertisement rates were illegal and were set aside for failing to comply with preconditions stipulated in Islamabad Local Government Act, 2015 for the validity of tax---Division Bench of High Court directed respondents to return payments made under protest and bank guarantees to respective appellants/petitioners, who deposited them under protest---Intra Court Appeal was allowed accordingly.

Federation of Pakistan v. Durrani Ceramics and others 2014 SCMR 1630; Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44; Khurshid Soap and Chemical Industries (Private) Limited v. Federation of Pakistan PLD 2020 SC 641; Secundrabad Hyderabad Hotel Owners Association v. Hyderabad Municipal Corporation and others AIR 1999 SC 635; University of Malakand v. Dr. Alam Zeb and others 2021 SCMR 678; Workers Welfare Fund v. East Pakistan Chrome Tannery PLD 2017 SC 28 and Mrs. Bilquis Anwar Khan and others v. Pakistan and others 2001 SCMR 809 rel.

Salim-ur-Rehman, Ali Sibtain Fazli, Muhammad Ilyas Sheikh, Raja Muqsit Nawaz, Habib Ahmad Bhatti, Abad-ur-Rehman, Ehsan Ali Qazi, Malik Muhammad Siddique Awan, Rizwan Faiz Muhammad, Haseeb Shakoor Paracha, Abdul Hameed Baloch and Mst. Zainab Janjua for Appellant.

Muhammad Nazir Jawad, Amir Latif Gill, Muhammad Atif Khokhar, Syed Qamar Hussain Sabzwari and Ms. Mehraj Tareen for Respondents.

2024 M L D 316

[Islamabad]

Before Saman Rafat Imtiaz, J

AFTAB AHMED KHAN and another---Petitioners

Versus

DILAWAR KHAN and 2 others---Respondents

W.P. No. 1498 of 2022, decided on 9th December, 2022.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 2B & 2(3)---Specific Relief Act (I of 1877), Ss. 42, 8 & 54---Suit for declaration, recovery of mense profit, possession and mandatory and permanent injunction---Disobedience or breach of stay order, allegation of---Expiry of stay order---No contempt of Court---Application under O. XXXIX, R. 2(3), C.P.C. was dismissed by the Trial Court and appeal thereagainst was also dismissed---Validity---Trial Court had held in the impugned order that the term status quo had been interpreted by the ad-interim order itself by restraining the respondents from alienating the suit property---No allegation of alienation had been made by the petitioners---Even otherwise, as far as the allegation of illegal construction was concerned, it might be seen that the respondent No.1 took a specific stance vide his reply sworn on oath that only repair work was carried out and no construction had been made on the suit property which stance remained un-rebutted by the petitioners as no affidavit-in-rejoinder was filed by them---In such circumstances the petitioners had remained unable to establish that any disobedience or breach of the stay order had been committed---Allegedly, there was no stay order in the field at the time of the alleged contempt as the order dated 28.01.2021, whereby the ad-interim order dated 05.12.2019 had been confirmed, had a validity period of six months pursuant to O. XXXIX, R. 2B, C.P.C. which therefore expired on 27.07.2021---Ad-interim order dated 05.12.2019 was confirmed on 28.01.2021 and as such was valid only till 27.07.2021---Petitioners had not brought on record nor alleged that any extension was passed by the Trial Court in the absence of which the temporary injunction ceased to have effect on expiry of six months---In view of the foregoing reasons there was no injunctive order in the field at the time of the alleged contempt---For all the foregoing reasons neither the injunctive order was in existence at the time of the alleged contempt of Court nor had the alleged violation been proved---Consequently, the writ petition was dismissed accordingly.

Syed Muhammad Shah Jehan Shah and 22 others v. Fazal-ur-Rehman and 45 others 1996 CLC 1572; Raja Talat Mahmood v. Ismat Ehtishamul Haq 1999 SCMR 2215; Gul Haider v. Dr. Muhammad Asad Zia 2003 YLR 913; XEN PESCO (WAPDA) Mansehra through Chairman, PESCO and 4 others v. Gas Masters CNG Filling Station, Mansehra through Khalid Latif and others PLD 2005 Pesh. 132; Muhammad Zahid Naseem Adil v. Muhammad Shafi and 5 others 2007 YLR 2190; District Collector, Bannu and 4 others v. Muhammad Subhan and 3 others 2008 CLC 1568; Dr. Taj Malook v. Malik Niaz Khan and another 2009 CLC 377; Muhammad Safdar and another v. Muhammad Naseer Haider and others PLD 2019 Lah. 295; Sahib Zada Din Muhammad v. Muhammad Zaman and others 2021 CLC 1560 and Messrs Pfizer Pakistan Limited and 2 others v. Pharma Plus International through Managing Partner 2022 CLC 1298 rel.

Ahmed Shahzad Awan for Petitioners.

Shahryar Nawaz Khan for Respondents.

2024 M L D 446

[Islamabad]

Before Mohsin Akhtar Kayani and Sardar Ejaz Ishaq Khan, JJ

Syed ASAD ALI SHAH---Appellant

Versus

The CHIEF EDITOR, DAILY JANG and other---Respondents

Regular First Appeal No.78 of 2017 in Suit No.20 of 2015, decided on 4th December, 2023.

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

----S. 9---Qanun-e-Shahadat (10 of 1984), Arts. 117, 120 & 129(g)---Defamation---Proof---Onus to prove---Appellant / plaintiff was aggrieved of dismissal of his suit filed against respondent / defendant newspaper for publishing a news item in its newspaper---Validity---Onus was on respondent / defendant to prove its plea by calling record of relevant authorities and failure to do the same would result in adverse inference to be drawn in terms of Art. 129 (g) of Qanun-e-Shahadat, 1984 for withholding best evidence---High Court depreciated practice of mere publication of news without confronting the originator of the news or concerned person to prove the fact that he had so reported---High Court awarded general damages against respondent / defendant newspaper, as appellant / plaintiff failed to demonstrate loss of any special damages in any reference and apparent defamation was demonstrated from record---High Court directed respondent / defendant newspaper to also publish apology in its newspaper in the similar manner in which defamatory news was published---Appeal was allowed accordingly.

Faqir Muhammad v. Muhammad Shakil 2013 CLC 2284; Muhammad Zaman Tabbasum v. Mehmood 2017 CLC 1221; Jalil Khan Dostani v. Dawood Ahmed 2010 CLC 1434; Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik PLD 2021 SC 715 and State v. Ahmed Omer Sheikh 2021 SCMR 873 rel.

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

----S.9---Defamation---General damages and special damages---Quantum of damages---Distinction---Distinction has to be drawn between general damages and special damages---General damages normally pertain to agony suffered through defamatory statement---In such cases, generally no yardstick can be applied for ascertaining exact amount of monetary loss sustained---In awarding general damages, Courts are to apply rule of thumb, according to which discretion rests within the Court to calculate such compensation keeping in view the attending circumstances of each case.

Munawar Ahmed, Chief Editor Daily Sama v. Muhammad Ashraf PLD 2021 SC 564; Abdul Majeed Khan v. Tawseen Abdul Haleem PLD 2012 SC 80 and Qazi Dost Muhammad v. Malik Dost Muhammad 1997 CLC 546 rel.

Awais Khan, proxy counsel for Appellant.

Ex-parte for Respondents.

Assisted by Salman Abbas (Law Clerk).

2024 M L D 552

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD ISRAR---Appellant

Versus

AMJAD ALI and others---Respondents

F.A.O. No.99 of 2023, decided on 7th November, 2023.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss.42, 39 & 54---Suit for declaration, cancellation of ownership and injunction---Interim injunction, refusal of---Appellant/plaintiff along with the suit, had filed an application under O.XXXIX, R. 1 & 2, C.P.C., praying for an interim injunction to restrain the respondents from changing the nature of the suit properties or alienating the same---Record showed that the appellant through his suit was seeking a declaration to the effect that he along with his brothers/respondents Nos. 2 to 4 were the real owners having equal shares in the suit properties whereas respondent No. 1 was only an ostensible/benami owner of the share of appellant and remaining respondents in the said properties---Appellant would have to prove that the consideration for the purchase of the suit properties was provided to him and remaining respondents in equal shares and that all the said parties were in possession of the said properties---Appellant would also have to explain the motive for the execution of a benami transaction under which respondent No. 1 was made the exclusive owner of the said properties---Respondent No. 1 in his affidavit acknowledged the joint ownership of the appellant and remaining respondents---Though it was true that the affidavit dated 20.10.2004 on which the appellant and respondents Nos.2 to 4 placed heavy reliance was yet to be produced in evidence; however veracity of said affidavit was to be determined by the Civil Court at the conclusion of the trial---Not a single document was attached with the file of the instant appeal to show that the consideration for the purchase of the suit properties had been paid jointly by the five brothers---No averment was made in the suit as regards possession of the title deeds of the said properties---Stage at which the proceedings in the suit had reached, the Civil Court did not commit any illegality by dismissing the appellant's application for interim injunction---Since the dispute between the parties pertained to immoveable properties, the doctrine of lis-pendens adequately protected the appellant---Appeal was dismissed accordingly.

Muhammad Ali v. Mahnga Khan 2004 SCMR 1111; Mst. Haleema v. Muhammad Kassam 1999 MLD 2934; Muhammad Ibrahim v. Mst. Naseem Khushi 2009 MLD 1031 and Khurram Zafar v. Mst. Sarah 2021 YLR 91 rel.

Ghulam Abbas Tarar and Syed Murawat Mehmood for Appellant.

Babar Saeed Butt for Respondent No.1.

Muhammad Ahmed Fiaz for Respondents Nos.2 to 4.

2024 M L D 698

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Jammu Kashmir Co-operative Housing Society---Petitioner

Versus

Gulraiz Mehmood and others---Respondents

Writ Petition No. 2016 of 2022, decided on 1st June, 2022.

Civil Procedure Code (V of 1908)---

----O.VI, R.17---Constitution of Pakistan, Art. 199---Amendment in written statement---Principles---Defendant/petitioner sought amendment in written statement which was declined by Trial Court---Validity---Record showed that after delay of three years of filing the suit, framing of issues and recording/closing of evidence of respondents, application under O. VI, R. 17, C.P.C., with regard to the amendment of written statement was filed---Allegedly, facts about proposed amendment were not incorporated/mentioned in the written statement inadvertently---No logic that facts which were in knowledge of parties if not mentioned at the relevant time, could be allowed to be mentioned at any time during the course of trial, as it would cause inordinate delay in deciding the matter---If the parties were allowed to make amendments in pleadings after many years of filing the suits/petitions etc. without any lawful/plausible justification, then the cases could not be decided and would be delayed for an indefinite period---Proposed amendment would also change the nature of the defense taken by the petitioner and would amount to making improvements which was not permissible under the law---Impugned order was interlocutory order which had not been made appealable under S. 104 read with Order XLIII, Rule 1 of the Code of Civil Procedure (Amendment) Act, 2020---Section 115, C.P.C., stands substituted in a manner that an order which is not appealable is no more revisable---Said statutory amendment did not allow revision against a non-appealable interlocutory order---Unless patent legal defect and material irregularity is pointed out, the orders could not ordinarily be interfered by the High Court while exercising jurisdiction under Art. 199 of the Constitution---Constitution petition was not maintainable and the same was dismissed in limine being meritless.

Lahore Development Authority and others s. Sultan Ahmad and another 2007 SCMR 1682, Gulzar Ahmad v. Additional District Judge and others 2019 CLC 1432 and Juma Khan v. Ayub and 8 others PLD 2018 Balochistan 1 ref.

Syed Saghir Ahmad Naqvi v. Province of Sindh 1996 SCMR 1165; Ms. Afshan Ahmed v Habib Bank Limited 2002 CLD 137; 2019 SCMR 919; PLD 2018 SC 28; 1996 SCMR 1165 and 1976 SCMR 450 rel.

Sheikh Muhammad Suleman for Petitioner

order

Tariq Mehmood Jahangiri, J.---Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner has challenged order dated 06.01.2022, passed by Civil Judge 1st Class, East-Islamabad, whereby the application filed by the petitioner under Order VI, Rule 17, C.P.C., for amendment in written statement, was dismissed.

1. Succinctly stated facts of the case are that respondents Nos. 1 to 3 filed suit for declaration and permanent injunction against the petitioner and 02 other defendants.

2. Written statement was filed and petitioner / applicant filed an application for amendment of written statement under Order VI Rule 17, C.P.C., which was dismissed vide order dated 06.01.2022.

3. Learned counsel for the petitioner inter alia contends that the impugned order passed by leaned Trial Court is not a speaking order; learned Trial Court has not given cogent and valid reasons for rejection of application; valuable and fundamental rights of the petitioner have been jeopardized; the proposed amendment is in accordance with law; the impugned order is erroneous, hence liable to be set-aside. Learned counsel has relied upon the cases titled as Lahore Development Authority and others s. Sultan Ahmad and another (2007 SCMR 1682), Gulzar Ahmad v. Additional District Judge and others (2019 CLC 1432) and Juma Khan v. Ayub and 8 others (PLD 2018 Balochistan 1).

4. Arguments heard, record perused.

5. Respondents Nos. 1 to 3 filed a suit for declaration and permanent injunction on 26.03.2018, para-03 of the plaint is reproduced hereunder for ready reference;-

"That the defendants who is a housing society, has launched its project near the suit land, deputed the defendants Nos. 2 and 3 who are very influential, trying to dispossess the plaintiffs in order to change the nature of the suit land by carving the plots, roads etc over the suit land illegally and unlawfully, knowing this fact that they have no concern whatsoever with the suit land."

1. The petitioner has filed written statement in the learned Trial Court on 02.10.2018, wherein he replied Para No. 3 of the plaint, as under;-

"That Para No. 3 is to the extent Writ Petition No. 2016 of 2022 of society is correct. Rest of para is wrong and incorrect hence denied."

1. Thereafter, issues were framed, evidence of the respondents / plaintiffs was recorded / closed and the case was fixed for recording of evidence of the petitioner.

2. The petitioner has neither enclosed copy of order sheet of the learned Trial Court nor disclosed very important facts in respect of date of framing of issues, closing date of evidence of the respondents, as well as number of opportunities granted to him for production of his evidence even when these questions were asked from the learned counsel for the petitioner he was unable to give the relevant dates which are every important and necessary for the just and proper decision of the case.

3. In the month of June 2021 i.e. after delay of more than three (03) years of filing the suit, framing of issues and recording / closing of evidence of respondents, application under order VI, Rule 17, C.P.C., with regard to the amendment of written statement was filed.

4. The proposed amendment / substitution of Para-03 of written statement is reproduced as under;-

"That Para-3 is totally incorrect and denied. In fact, as per documents attached with the plaint, the status of the plaintiff is that of Haqdar Shamlat but he is not recorded in possession of any piece of Shamlat Land. On the other hand the Society purchased land measuring 121 Kanal 4 Marla long before and developed the same by laying the infrastructure of metal roads and other development works in the year 2010. The instant suit was filed in the year 2018. As per Khasra Gardawari the answering defendant is recorded in possession of Khasra numbers 318 Min and 316/1 of Mouza Panuwal, Islamabad. The answering defendant is owner in possession of actually purchased land Measuring 121 Kanal 4 Marla and is not in possession of any extra piece of land. Contrarily, the plaintiff has avoided to attach Jamabandi Zar-e-Kar just to conceal his present status of Haqdar in the Shamlat land. However, the Society has not started any development work in the land owned and possessed by anyone else including the plaintiffs."

1. When asked that whether facts of the proposed amendment were in the knowledge of petitioner at the time of filing of written statement, learned counsel for the petitioner stated that "inadvertently" these facts were not incorporated / mentioned in the written statement.

2. There is no logic that the facts which are in knowledge of parties if not mentioned at the relevant time can be allowed to be mentioned at any time during the course of trial, as it will cause inordinate delay in deciding the matter, if the parties are allowed to make amendments in pleadings after many years of filing the suits / petitions etc. without any lawful / plausible justification, then the cases cannot be decided and delayed for an indefinite period.

3. If the proposed amendment is allowed, the amended written statement will be filed as well as the application for framing amended issues will also be filed, then again the plaintiff will be required to produce evidence and the case will linger on for many years.

4. The proposed amendment will also change the nature of the defense taken by the petitioner and would amount to make improvement which is not permissible under the law.

5. The impugned order dated 06.01.2022, is interlocutory order which has not been made appealable under Section 104 read with Order XLIII, Rule 1 C.P.C. and pursuant to Section 15 of the Code of Civil Procedure (Amendment) Act, 2020, Section 115 C.P.C stands substituted in a manner that an order which is not appealable is no more revisable. The said substituted Section reads as following:-

"115. Revision.- Any party aggrieved by an order under Section 104, passed by the Court of District Judge or Additional District Judge in an appeal against an interlocutory order passed by a Civil Judge or Senior Civil Judge, as the case may be, may within thirty days of the said order may file a revision to the High Court on an obvious misapprehension of law or in respect of a defect in jurisdiction."

1. Now the said statutory amendment does not allow revision against a non-appealable interlocutory order. The said statutory bar cannot be circumvented by challenging such an interlocutory order in the Constitutional jurisdiction of the High Court. A party aggrieved by such an interlocutory order has to wait until a Civil Court passes a final order and then to challenge it in an appeal. This is because an interlocutory order merges into the final verdict. The purpose behind barring a revision against an interlocutory order is to avoid delay in disposal of the cases. Reference in this regard may be made to a case titled as Syed Saghir Ahmad Naqvi v. Province of Sindh (1996 SCMR 1165), wherein it has been held as follows:-

"The statute excluding a right of appeal from the interim order cannot be passed by bringing under attack such interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders".

2024 M L D 799

[Islamabad]

Before Arbab Muhammad Tahir

Rizwan Ijaz and another---Petitioners

Versus

Javed Akhtar and 2 others ---Respondents

Criminal Miscellaneous No.1766 of 2023, decided on 19th December, 2023.

Penal Code (XLV of 1860)---

----Ss. 302(b), 109 & 34---Criminal Procedure Code (V of 1898), Ss. 63 & 561-A---Qatl-i-amd, abetment, common intention---Accused discharged by Magistrate on the ground of deficient evidence---Legality---In the case in hand the two nominated accused were apprehended and were produced before the Magistrate for obtaining their physical remand---During the physical remand one motorcycle and a pistol were also recovered---First Information Report was registered on the statement of deceased, who succumbed to his injuries, and had specifically nominated the said arrested accused persons with specific roles---Relevancy of statement of the deceased and evidentiary value of the recovered articles would obviously be determined during trial by a competent court---However, the Magistrate instead of exercising powers under Section 167, Cr.P.C., in respect of the request for physical remand, proceeded to release the arrested accused persons under Section 63 Cr.P.C., by holding that "no reasonable incriminating substances exist as against the accused persons"---Validity---Such observation was made by the Magistrate after reproducing in his order, the opinion of expert who had analyzed the video footage submitted before the Investigating Officer by the accused person in an attempt to establish the plea of alibi, which determination was otherwise not within his competence and domain---In the case in hand, the Police Officer did not recommend to the Magistrate that the accused be discharged on the ground of deficient evidence---In fact the police had submitted a request for further physical remand in view of substantial progress made during investigations in the criminal case---Furthermore, the contents of the FIR and the plea of alibi raised by the accused persons were yet to be considered by the trial in the light of evidence of the parties---Magistrate while passing order, proceeded in haste and ignored that the question of guilt and innocence of the accused persons was to be considered by the competent Trial Court---Magistrate ignored that such intricate disputed questions required recording of evidence, which could not have been resolved in his administrative capacity, particularly when he lacked jurisdiction to try the criminal case---Powers under S. 63, Cr.P.C., ought to be exercised in a case of justified arrest of the accused persons in absence of sufficient evidence as to their involvement in the criminal case, but in a case where the accused persons were specifically nominated (if proved during trial and recovery of the incriminating articles was effected subject to determination of evidentiary value during trial), then, prima facie, sufficient incriminating material was available on record for the Magistrate to have either granted or refused the physical remand as requested by the Police Officer---Magistrate should have left the determination of the guilt or innocence of the accused persons to a Court competent to try the case after completion of the investigations---Magistrate by simply releasing the nominated accused persons under Section 63 Cr.P.C. blocked further progress in the investigation of the criminal case---Order passed by the Magistrate was patently illegal on the face of it, thus, same was set aside the same by allowing the petition and Magistrate was directed to reconsider the request submitted by police for physical remand of the accused persons.

Bahadur and another v. The State and another PLD 1985 SC 62; Hidayatullah and others v. The State through Advocate-General, N.W.F.P, Peshawar High Court, Peshawar 2006 SCMR 1920; Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others 2008 SCMR 240; Maulvi Aziz-ur-Rehman v. Ahmad Khan and others" 2004 SCMR 1622; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63; Ashiq Hussain v. Sessions Judge, Lodhran and 3 others PLD 2001 Lahore 271; Muzaffar Ahmad v. The State and 2 others" 2021 P Cr. LJ 1393; Allah Ditta v. Saeed Ahmed Awan and 2 others; 2004 YLR 1410; Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lahore 336; Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan 1985 P Cr. LJ 244; Muhammad Afzal v. The State 2012 SCMR 707; Waqar ul Haq v. The State 1985 SCMR 975; Muhammad Sadiq v. The State 2018 MLD 1758; Pervaiz Ahmed v. The State and 2 others 2022 YLR Note 42; Hazar Khan and 3 others v. The State 2013 P Cr. LJ 1892 and Hamza Sadaqat v. The State and another 2022 YLR 1024. ref.

Bahadur and another v. The State and another PLD 1985 SC 62; Muhammad Sharif v. The State and another 1997 SCMR 304; Hidayatullah and others v. The State through Advocate-General, N.-W.F.P. Peshawar High Court, Peshawar 2006 SCMR 1920; M.S. Ahlawat v. State of Haryana and another AIR 2000 SC 168; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; The State through Deputy Prosecutor-General, NAB v. Tariq Mohsin and others 2004 SCMR 1892; Altaf Hussain v. Abdul Samad and 3 others 2000 SCMR 1945; Asfundyar and another v. Kamran and another 2016 SCMR 2084; Muhammad Ali v. Additional I.G. Faisalabad and others PLD 2014 SC 753; Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187; Ali Gohar and others v. Pervaiz Ahmed and others PLD 2020 SC 427; Younus Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC58 and Hidayatullah's and others v. The State through Advocate General, N.W.F.P Peshawar High Court, Peshawar 2006 SCMR 1920 rel.

Raja Ikram Amin Minhas and Amir Zar Bhatti for Petitioners.

Hazrat Younus, State Counsel and Muhammad Tariq, SI for the State.

Ch. Yasir Irfan for Respondent No. 1.

2024 M L D 1020

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Dr. Shireen M. Mazari---Petitioner

Versus

Federation of Pakistan through Secretary Interior, Ministry of Interior, Islamabad and another---Respondents

Writ Petition No. 2212 of 2023, decided on 1st December 2023.

(a) Passports Rules, 2021---

----Rr. 21 & 22---Penal Code (XLV of 1860), Ss. 420, 468, 471& 477-A---Foreign Exchange Regulation Act (VII of 1947), Ss. 5 & 23---Passport Control List (PCL)--- Pre-conditions--- Petitioner was alleged to have committed offences of cheating, forgery, using forged document, falsification of accounts and violation of foreign exchange restrictions---Authorities placed name of petitioner on Passport Control List---Validity---Authorities failed to provide exceptional circumstances for placing name of petitioner on PCL who was a female, remained an Associate Professor and had also served as a chairperson of department of Defense Strategic Studies of Quaid-i-Azam University (QAU), Islamabad, for a long period--- Petitioner remained Federal Minister for human rights, obtained bail in all cases registered against her, and had never been declared proclaimed offender---Nothing was placed on record that could indicate that Federal Government had given approval regarding placing name of petitioner on Passport Control List (PCL) as provided in R.22 (1) of Passports Rules, 2021---Placing petitioner's name on PCL was violative of her fundamental rights to due process, liberty, life, and freedom of movement which were guaranteed by the Constitution---High Court directed the authorities to remove name of petitioner from PCL as it was unjustified, illegal, without lawful authority and of no legal effect---Constitutional petition was allowed accordingly.

Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 SCMR 630; Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504; Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2007 SC 642;Federation of Pakistan through Secretary, Ministry of Interior v. General (R) Pervez Musharraf and others, PLD 2016 SC 570; The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others, 2017 SCMR 1179; Sheikh Shan Ilahi v. Federation of Pakistan through Secretary Interior, Ministry of Interior, Islamabad and 6 others PLD 2023 Lahore 359; Farah Mazhar and 3 others v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 2 others PLD 2022 Lahore 1191; Sadaf Shadeel and another v. National Accountability Bureau (Sindh) through Director General and another 2022 YLR 2441; Ali Muhammad Turab v. Federation of Pakistan and 2 others PLD 2020 Islamabad 454; Sayed Zulfikar Abbas Bukhari v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and others PLD 2019 Islamabad 316; Shabana Noor Ahmed v. Director-General Immigration and Passport, Islamabad and others, PLD 2019 Sindh 456; Dr. Joseph Wilson v. Federation of Pakistan through Secretary Ministry of Interior and others, 2017 PCr.LJ 1569; Tanveer Hussain Manji and 3 others v. Federation of Pakistan through Secretary Interior and 3 others 2016 CLC 1534; Yusuf J. Ansari v. Government of Pakistan through Secretary Ministry of Interior, Islamabad and another PLD 2016 Sindh 388; Gen. (Retd.) Pervez Musharraf through Attorney v. Pakistan through Secretary Interior and others PLD 2014 Sindh 389; Riaz Ahmed v. Government of Pakistan and others, PLD 2014 Islamabad 29; Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others, PLD 2010 Lahore 230; Wajid Shams-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, PLD 1997 Lahore 617; Zia ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015; Federation of Pakistan and another v. E-Movers (pvt) Ltd and another 2022 SCMR 1021; 2016 SC 995; 2017 SCMR 713; 2017 SCMR 1427; PLD 2018 SC 189 and PLD 2017 Islamabad 64 rel.

(b) Passports Rules, 2021---

----Rr.6 &22 (a), (b)---Passport Control List---Category "A" & "B"---Pre-conditions---According to category "A", names of those persons are placed who are involved in taking part in anti-state activities and under category "B"names of those persons are placed who have been refused passport under the rules other than anti-state activities specified in R.6 (a) of Passports Rules, 2021.

(c) Passports Rules, 2021---

----R. 22---Passport Control List---Jurisdiction---Federal Government under R.22 of Passports Rules, 2021, is vested with the powers to regulate departure from and entry into Pakistan and also visit to foreign countries.

Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Controller General of Accounts v. Fazal Ahmad, DAO EC (C and W Division Hangu) and others 2021 SCMR 800 and Government of Sindh through Secretary Health Department and others v. Dr. Nadeem Rizvi and others 2020 SCMR 1 rel.

Barrister Ahsan Jamal Pirzada for Petitioner..

Barrister Munawar Iqbal Duggal, Additional Attorney General.

Malik Muhammad Iqbal Kallue, Assistant Attorney General.

Ch. Muhammad Rafaqat Ali, Law Officer, ICT, Islamabad.

Syed Tahir Kazim, Law Officer, on behalf of IGP, Islamabad.

Muhammad Nawaz Khan, Director Immigration and Passport.

Khalid Javed Awan, S.I.

Date of hearing: 22nd November, 2023.

Judgment

Tariq Mehmood Jahangiri, J.---Through the instant writ petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner is seeking removal of her name from the Passport Control List ("PCL").

1. Succinctly stated facts of the matter are that the petitioner came to know through an article published in the newspapers and some magazines that her name has been placed on PCL, hence the instant writ petition.

2. Learned counsel for the petitioner, inter alia, contends that impugned action of respondents, restraining the movement of petitioner is discriminatory and violative of the provisions of the Constitution, her fundamental rights have been jeopardized; act of respondents by placing her name on PCL is unwarranted, unlawful and illegal, hence is liable to be set aside.

3. Conversely, learned counsel for respondents have controverted the arguments advanced by learned counsel for the petitioner and has stated that petitioner is involved in several criminal cases, in order to restrain her from fleeing abroad her name was placed on PCL just to ensure her presence for completion of investigation/trial; fundamental rights of the petitioner have not been infringed; all the proceedings have been conducted strictly in accordance with law and has prayed for dismissal of instant writ petition.

4. Arguments advanced by learned counsel for the parties have been heard and record has been perused with their able assistance.

5. This court vide order dated 20.07.2023, passed a detailed order in Writ Petition No.2141 of 2023 titled as "Faisal Maqbool Shaikh v. Federation of Pakistan through Secretary of Interior, Ministry of Interior, Islamabad and 02 others." for removal of name of the petitioner (Faisal Maqbool Shaikh) from Passport Control List whose name was also placed on the basis of his involvement in a criminal case vide F.I.R. No.38 of 2022, dated 06.10.2022, under sections 420, 468, 471, 477-A, 109, P.P.C. read with 5, 23 FER Act, 1947, Police Station FIA, CBC, Islamabad (Foreign Funding Case). When confronted, learned Additional Attorney General has informed that respondent / State has not challenged order dated 20.07.2023, in Intra Court Appeal or before Hon'ble Supreme Court of Pakistan and the same has attained finality. Facts and circumstances of the present case are almost identical with the case which has already been decided by this Court.

6. Senior Superintendent of Police, Investigation, Islamabad vide letter 23.05.2023, requested the D.I.G., and A.I.G., Operations, Islamabad Police for the cancellation of Passport of the petitioner, on the ground that:

"The I.Os , of the cas have requested for the cancellation of passport of the accused."

But Investigating Officer present in the Court after examining the record / case file of FIR No.485/22, stated that no such request is available in record.

1. Islamabad Police has submitted report / parawise comments, wherein reason for placing the name of the petitioner on Passport Control List is mentioned as under:

"Due to involvement in different cases of Islamabad and the IOs of the cases have failed to arrest them and there was an apprehension that they may be proceeded aboard to evade lawful arrest or investigation."

But the facts of instant matter are contrary to the ground for placing name of the petitioner on PCL mentioned in the report submitted in this Court, as argued / admitted by law officer of Islamabad Police that the petitioner was arrested, sent behind the bars, obtained bail in all cases and is facing trial in accordance with law.

1. Name of the petitioner has been placed on PCL by the Directorate General of Immigration and Passports, Government of Pakistan, Islamabad upon the recommendation of Islamabad Police. Islamabad Police has filed comments, wherein it is mentioned that the petitioner is involved in seven (07) criminal cases / FIRs, out of which she has been discharged from two cases and has obtained bail in all cases registered against her. She has neither been declared proclaimed offender nor avoided to appear before the Court rather facing trial in all the cases in accordance with law.

2. Placement Circular No.18(5/23) dated 26.05.2023, issued by Directorate General of Immigration and Passports, Government of Pakistan, Islamabad, wherein names of 10 persons including the petitioner have been placed on "PCL", in pursuance of Paras-21 and 22 of the Passports Rules, 2021.

3. Neither any show cause notice was ever issued to the petitioner for placing her name on PCL nor she was informed by the respondents / police that her name has been placed on PCL which clearly shows the malafide and ulterior motives of respondents. Main purpose of enactment of Passport Rules, 2021, is that the persons who are involved in terrorist/anti-state activities etc. in order to avoid arrest, try to flee abroad, should not be allowed to leave the country, so that law enforcing agencies arrest and produce them before the Courts of law to face the trial but in the instant case no such reason is extended by respondents as admittedly the petitioner in not involved in such likes cases; neither declared proclaimed offender nor became fugitive from law, rather was arrested, sent behind bars, released after obtaining bail after arrest and is now facing trial in all the cases. It has been held by the Hon'ble Supreme Court of Pakistan in a case titled as "Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others." (2015 SCMR 630) that:

"The exercise of any discretionary power must be rational and have a nexus with the objective of the underlying legislation. Arbitrariness is the antithesis of the rule of law. The legislature, when it confers a wide ranging power, must be deemed to have assumed that the power will be, firstly, exercised in good faith, secondly, for the advancement of the object of the legislation. and, thirdly, in a reasonable manner. Section 24A of the General Clauses Act, 1897, reiterates the principle that statutory power is to be exercised "reasonably", fairly, justly and for the advancement of the purposes of the enactment" and further clarifies that an executive authority must give reasons for its decision. Any action by an executive authority which is violative of these principles is liable to be struck down. No other view is permissible."

1. During the Course of arguments a question was put by this Court to the learned Additional Attorney General and learned counsel appearing on behalf of Islamabad Police but they have failed to satisfy the Court that in how many cases registered in Islamabad against terrorists, hardened criminals, accused of committing murders, gang rapes, abductions / -kidnappings for ransom etc. names of the accused have been placed on PCL; learned AAG / learned counsel had no reply; they also failed to assist this Court that what were the exceptional circumstances that name of the petitioner has been placed on PCL who is a female, remained Associate Professor and also served as a chairperson of department of Defense Strategic Studies of Quaid-i-Azam University (QAU) Islamabad for a long period; she remained federal minister for human rights, obtained bail in all the cases registered against her, facing trial and never been declared proclaimed offender.

2. The Passports Rules, 2021, are issued vide S.R.O of Ministry of Interior, Islamabad dated 13.02.2022; section 22 of the Rules ibid deals with the passport control list which is reproduced as under:

"22. Passport control list. (1) Federal Government is vested with the powers to regulate the departure from and entry into Pakistan and also visit to foreign countries of its citizens under the Act.

(2) The Division concerned and Directorate General shall prepare and maintain a PCL, for placement of names and other record of individuals who have been refused passport facilities under these rules under Category 'A' and 'B' respectively with the following description, namely:?

(a) under category 'A' the names of those persons are placed who are involved in anti-state activities or whose visit to foreign countries is considered to be prejudicial to the State interest, or, whose visit abroad is banned from security point of view. The names in this list shall be placed and removed by the Additional Secretary of the Division concerned.

(b) under category 'B' the names of those persons are placed who have been refused passport under these rules other than anti-state activities specified in clause (a). The names of persons included in the category under this clause may also be placed on the recommendations of government agencies or departments;

(c) _____________

(d) _____________ "(emphasis added)

1. In the aforementioned section, placing of names on the Passport Control List is the domain of the Federal Government, whereas the Division Concerned and Directorate General has to prepare and maintain PCL.

2. The criteria for placing of names is provided in category 'A' and 'B'. According to category 'A', names of those persons are placed who are involved in taking part in anti-state activities and under category 'B' names of persons are placed who have been refused passport under the rules other than anti-state activities specified in clause (a).

3. In the instant case there is no allegation that the petitioner was ever involved in anti-state activities or her visit to foreign countries has considered to be prejudicial to the State interest. The petitioner has never been refused the issuance of passport, so her case does not fall under the criteria mentioned in Rule 22 ibid

4. It is-mentioned in Rule 22(1) that the Federal Government is vested with the powers to regulate the departure from and entry into Pakistan and also visit to foreign countries under the Act but in the instant case no approval of the Federal government has been obtained.

5. According to principle of law laid down by the Hon'ble Supreme Court of Pakistan in a case titled as "Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others", (PLD 2016 SC 808), whenever a power is coferred on the Federal Government it is construed as a power given to the Prime, Minister and the Federal Ministers / Cabinet to be exercised in the name of Federal Government. Reliance in this regard is also placed on the law laid down by the Hon'ble Supreme Court of Pakistan in following cases:

(i) "Controller General of Accounts v. Fazal Ahmad, DAO EC (C and W Division Hangu) and others", (2021 SCMR 800)

(ii) "Government of Sindh through Secretary Health Department and others v. Dr. Nadeem Rizvi and others", (2020 SCMR 1)

1. Nothing has been placed on record that may indicate that the Federal Government has given approval regarding placing of name of the petitioner on Passport Control List (PCL) as provided in Rule 22 (1) of the Passports Rules, 2021.

2. The placing of petitioner's name on PCL is violative of her fundamental rights to due process, liberty, life, and freedom of movement which are guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. The relevant Articles are reproduced herein below for ready reference:

"ARTICLE 4. Right of individuals to be dealt with in accordance with law, etc.

(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. Wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular-

(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and

(c) no person shall be compelled to do that which the law does not require him to do."

"ARTICLE 9. Security of Person. No person shall be deprived of life or liberty save in accordance with law."

"ARTICLE 10A. Right to Fair Trial. "For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."

"ARTICLE 15. Freedom of Movement, etc. Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof."

Guidance in this regard is obtained from the laws and principles laid down by the superior courts of the country which are as under:

(i) In the case of Government of Pakistan and another v. Dada Amir Haider Khan, (PLD 1987 SC 504), it has been held as follows:

"...As there is not much difference between Article 9 and Article 4(2)(a) and the former appears merely to be a deduction from the latter, Article 9, therefore, does not take the matter any further. However, Article 15, which confers upon every citizen, inter-alia, the right to enter and move freely throughout Pakistan, is of greater relevance. Article 15 guarantees to every citizen the right to remain in, enter and move freely throughout Pakistan. But his right to enter the country if he is leaving it or has gone abroad and his right to step out and step in the country are subject to reasonable restrictions imposed by law in the public interest. By reading the provisions of Articles 4, 9 and 15, it is manifest that every citizen) has the liberty to go abroad and to re-enter Pakistan unless he is, precluded from doing so under some law made in the public interest. The Passports Act, 1974, is one such law. Indeed its preamble itself recites that it has been enacted to regulate the departure from and entry into Pakistan and visits to foreign countries of citizens of Pakistan...

"It is now established law that a discretion vested in a public authority must be exercised fairly, reasonably and in good faith.'

"This Court in Messrs East and West Steamship Company v. Pakistan PLD 1958 SC 41 took a similar view Muhammad Munir, C.J. observing that "where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party."

"...Undoubtedly, to travel abroad could be barred if it was shown that the applicant was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the State or was against the public interest. Nothing of the kind has been stated and the only reason given while refusing the passport to the respondent is that he was a person of "communist thought."

"Moreover, a citizen's right to travel abroad is an important aspect of the citizen's liberty and is closely related to the rights of free speech and association."

(ii) In the case of Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary, Ministry of Interior and others, (PLD 2007 SC 642) it has been held as follows:

"Every citizen has undeniable right vested in him as conferred under Article 15 of the Constitution to go abroad and return back to Pakistan without any hindrance and restraint but it must be kept in view that it is neither absolute nor unqualified as is indicative from the language employed in Article 15 of the Constitution as a specific mention has been made "subject to any reasonable restriction imposed by law in the public interest", meaning thereby that such right is subject to the relevant law which is in existence at relevant time but an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Therefore, action taken upon no ground at all or without proper application of the mind of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner" (emphasis added)

(iii) In the case of Federation of Pakistan through Secretary, Ministry of Interior v. General (R) Pervez Musharraf and others, (PLD 2016 SC 570) it has been held as follows:

"12. Apart from the above discussion, considering the question of inclusion or retaining the name of respondent No. 1 in the ECL, thereby, restricting his freedom of movement, we also cannot lose sight of the fact that under Article 15 of the Constitution freedom of movement is one of the fundamental rights guaranteed to every citizen of the Country, which cannot be abridged or denied arbitrarily on mere liking or disliking, without any lawful justification for this purpose. Moreso, when Article 4 of the Constitution further guarantees right to every individual, to be dealt with in accordance with law..." (emphasis added)

(iv) In the case of The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others, (2017 SCMR 1179) it has been held as follows:

"6.... The High Court's judgment was upheld by this Court vide judgment dated 13.4.2016. It was held that mere pendency of a criminal case cannot furnish a justification for restricting the movement of respondent No.1..."

"13....lt was not only in the case of Wajid Shamsul Hassan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad (PLD 1997 Lahore 617). where it was held that the liberty of a citizen cannot be curtailed by mere registering a criminal case, and that mere registration of FIR would not be a ground for depriving a citizen of the exercise of his constitutional right and further that registration of a criminal case has no nexus with and is extraneous to the object of the Exit from Pakistan (Control) Ordinance 1981, but even in the case of respondent No.1, in relation to the second Notification/ Memorandum, this Court, while dismissing the petitioner's petition for leave, through judgment dated 13.4.2016, has held as follows:-

"5. Respondent No.1, no doubt, has been charged in a case mentioned above which is still pending adjudication in the competent Court of law. But mere pendency of a criminal case cannot furnish a justification for prohibiting her movement...." (emphasis added)

(v) In the case of Sheikh Shan Ilahi v. Federation of Pakistan through Secretary Interior, Ministry of Interior, Islamabad and 6 others, (PLD 2023 Lahore 359) it has been held as follows:

"25. From the above discussion it follows that the right to travel and to go abroad is an integral part of the fundamental rights to life and liberty and can be restricted only under a law made in the public interest. Here, the "law" means "enacted law", a law that is valid and non-discriminatory...And, in Pakistan Muslim League (N) and others v. Federation of Pakistan and others (PLD 2007 SC 642) the Supreme Court of Pakistan held that it should not be for an indefinite period or disproportionate to the mischief sought to be prevented. The Executive has no inherent power except what is conferred on it by law. An action which is mala fide or colourable or taken upon extraneous or irrelevant considerations is not regarded as action in accordance with law. Similarly, an action taken by an authority on no ground or without application of mind is unlawful and liable to be struck down.

"45. Administrative authorities are obliged to exercise the discretion vested in them in the public interest justly, fairly and reasonably,..."

"48. There is no denying the fact that it is in the public interest that offenders should be brought to justice. It is more true in respect of the fugitives from law. Nevertheless, every case has its own facts and the Federal Government cannot cancel, impound, confiscate or for that matter blacklist a person mechanically. It must thoroughly examine each case before taking any action...."

"49. In Writ Petition No.5734/2021, the name of Petitioner Syed Anwar Shah was placed on the blacklist on the recommendation of FIA as he was a proclaimed offender in case FIR No. 107/2013. He has surrendered and the competent court has admitted him to bail. It is true that the case against him has not been decided so far but that cannot be a ground to deprive him of the right to travel abroad. The Deputy Attorney General stated at the bar that he would recommend removal of his name from the blacklist."

"50. In view of the above, these petitions are accepted. The blacklisting of both the Petitioners is declared to be without lawful authority and of no legal effect." (emphasis added)

(vi) In the case of Farah Mazhar and 3 others v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 2 others, (PLD 2022 Lahore 1191) it has been held as follows:

"12. None of the Petitioners are accused in any criminal case. It is trite law that even registration of a case or pendency of a criminal case is not sufficient to include or place one's name on the Exit Control List."

"24. The analysis of the facts of the instant case, the law of Pakistan developed and interpreted by the superior Courts of Pakistan and the international jurisprudence evolved on the subject leaves no doubt that the freedom and liberty are basic instinct of a human being. The very essence and existence of life is felt, acknowledged, recognized and endured with the act of movement. The act of movement starts in the womb of mother and ends with pronouncement of death. It is movement that distinguishes life from death and as such, the right to movement is cherished, protected and guarded from times immemorial.... The discretion exercised by the executive is subject to judicial review. Article 15 of the Constitution is no exception. It recognizes the right to movement as a fundamental right subject to restrictions imposed by law in the public interest. This right is not limited to movement within Pakistan but extends and includes the right to leave and enter Pakistan. Right to movement is an inseparable part of right to life. The exercise of executive authority is subject to judicial review. The state must come forward with legitimate and lawful cogent, reasonable, justifiable and substantive reasons to clog the right to movement of a citizen. Conversely, if the impugned action speaks of malice or is based on mala fide or is otherwise taken arbitrarily and capriciously or without hearing or is unreasonable or without any substantive reason or is based on irrelevant, extraneous and presumptive considerations, the same is liable to be struck down." (emphasis added)

(vii) In the case of Sadaf Sharjeel and another v. National Accountability Bureau (Sindh) through Director General and another, (2022 YLR 2441 [Sindh)] it has been held as follows:

"16. In the case of Rafique v. Federation of Pakistan (2018 MLD 597) if was held as under;

"It is now settled law by the Hon'ble Supreme Court that an accused right to travel abroad as guaranteed under Article 15 of the Constitution cannot be lightly trifled with even if he is an accused in a criminal case. In this respect, reliance is placed on the cases of Wajid Shams-ul-Hassan v. Federation of Pakistan (PLD 1997 Lahore P.617) Federal Government v. Ms. Ayan Ali (2017 SCMR 1179) and more recently unreported Supreme Court case of Dr. Asian Hussain v. Federation of Pakistan dated 29.08.2018."

"18. In this case the charge has not been framed despite a delay of over one year due to no fault of the petitioners, there are 12 accused and 56 PW's each of which will be subject to 12 separate cross-examinations by each counsel for the accused which would in effect mean that if we kept the names of the petitioners on the ECL until conclusion of the trial the petitioners would realistically have to remain in Pakistan for at least 3 years more as it is quite apparent that the trial is extremely unlikely to be completed within the next 3 years which in our view would be violative of the above mentioned fundamental rights of the petitioners especially as the petitioners have demonstrated when in the past they have been allowed to travel abroad they have always returned on time." (emphasis added)

(viii) In the case of Ali Muhammad Turab v. Federation of Pakistan and 2 others, (PLD 2020 Islamabad 454) it has been held as follows:

"The right of free movement whether within the country or across its frontiers, either in going out or in coming in, is a personal liberty within the meaning of Article 9 of the Constitution, which says that, "No person shall be deprived of life or liberty save in accordance with law." Freedom of movement is stated to be the essence of personal liberty. A citizen cannot be deprived of his fundamental right to travel abroad except according to the procedure established by law." (emphasis added)

(ix) In the case of Sayed Zulfikar Abbas Bukhari v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and others, (PLD 2019 Islamabad 316) it has been held as follows:

"4. Learned counsel further contended that mere pendency of inquiry does not entitle the National Accountability Bureau to place name of any person on ECL...."

"10. Admittedly, when name of an individual is placed on ECL, his freedom of movement is curbed and the same tantamount to violation of fundamental rights and in such state of affairs, the power/authority is to be exercised by the executive sparingly after taking into account relevant facts and circumstances. The referred recommendation is not to be followed by respondent No.1 i.e. Federation of Pakistan, in a mechanical fashion. In case reported as Government of Pakistan and another v. Dada Amir Haider Khan (PLD 1987 SC 504), the august apex Court observed that discretion vested in a public authority must be exercised fairly, reasonably and in good faith. The case law relied upon by the learned counsel for the petitioner is instructive in the present facts and circumstances. In Mst. Nasreen Begum and another v. Ministry of Interior, Government of Pakistan through its Secretary and 2 others (PLD 2012 Islamabad 17), this Court observed that mere pendency of inquiry would not justify denial of fundamental right of traveling abroad guaranteed to a citizen by the Constitution. Similar observation was made by the Hon'ble Lahore High Court in case reported as Inam Akbar v. Federation of Pakistan through Secretary, Ministry of Interior and others (PLD 2016 Lahore 553).... The upshot of the above case law is that respondent No.1 while placing name of the petitioner on Exit Control List did not apply mind and acted mechanically on the recommendation of National Accountability Bureau. Even respondent No.2 does not seem to be earnest in the recommendation it made inasmuch as it has granted one time unconditional permission to the petitioner to travel abroad, whereas in the original recommendation, it is provided that it is apprehended that he might abscond. Even otherwise, there is nothing on record to show that the petitioner has not cooperated with respondent No.2. Moreover, as noted above, Respondent No.1 while issuing the impugned memorandum acted without application of mind." (emphasis added)

(x) In the case of Shabana Noor Ahmed v. Director-General Immigration and Passport, Islamabad and others, (PLD 2019 Sindh 456) it has been held as follows:

"11. Therefore, Clauses 51(B) and 21(b) of the Passport and Visa Manual 2006 could only have been invoked had Junaid been in Pakistan and wanting to leave Pakistan. Even in that case, it has been consistently held by the Superior Courts of this country in cases arising from the Exit From Pakistan (Control) Ordinance, 1981 that mere pendency of a criminal case is not sufficient justification for prohibiting a citizen from exiting Pakistan and for interfering with his Fundamental Right of freedom of movement enshrined in Article 15 of the Constitution of the Islamic Republic of Pakistan, 1973...."

"12. The pronouncement of law by the aforesaid case-law is that a citizen's Fundamental Right of freedom of movement under Article 15 of the Constitution cannot be impeded merely due to pendency of a criminal case against him...." (emphasis added)

(xi) In the case of Dr. Joseph Wilson 14 Federation of Pakistan through Secretary Ministry of Interior and others, (2017 PCr.LJ 1569) it has been held as follows:

"29. There appears to be consensus of judicial opinion on the point that the mere fact that an inquiry or an investigation was being conducted by NAB or any other agency against the petitioner was not by itself a sufficient reason to place his name on E.C.L. Even the pendency of criminal proceedings, including proceedings before an Accountability Court (without an order or a request from the Court for the curtailment of an accused's freedom to travel abroad) is not considered a sufficient ground to place a citizen's name on E.C.L. While this has been the general trend of judicial pronouncements, yet each case has to be examined on its own merits, and the peculiar facts of a case may cause a Court of Constitutional causes to decline relief to a petitioner seeking to have his name removed from the E.C.L. (emphasis added)

(xii) In the case of Tanveer Hussain Manji and 3 others v. Federation of Pakistan through Secretary Interior and 3 others, (2016 CLC 1534) it has been held as follows:

"There is no doubt that freedom of movement or right to travel is fundamental right of a citizen as enshrined under Articles 4 and 9 of Constitution of Islamic Republic of Pakistan, 1973. Every citizen of Pakistan has the liberty to go abroad and return to Pakistan unless precluded from doing so, in the public interest...": (emphasis added)

(xiii) In the case of Yusufl, Ansari v. Government of Pakistan through Secretary Ministry of Interior, Islamabad and another, (PLD 2016 Sindh 388) it has been held as follows:

"Mr. Naek has rightly referred to the case-law developed by the superior Courts whereby a consistent view is taken that right of free movement which indeed includes the right of travelling abroad subject to reasonable restriction has been guaranteed under Article 15 of the Constitution of Islamic Republic of Pakistan and in case such right is to be curtailed by applying reasonable restriction then such power must be exercised fairly, reasonably and in good faith and the order whereby such restriction is imposed should not be passed mechanically on the request of any ministry or department and unless against the public interest such order must detail reason and should reflect application of mind" (emphasis added)

(xiv) In the case of Gen. (Retd.) Pervez Musharraf through Attorney v. Pakistan through Secretary Interior and others, (PLD 2014 Sindh 389) it has been held as follows:

"29....It is quite clear that registration of a criminal case or institution of criminal proceedings does not automatically imply that the accused should be disallowed to move outside Pakistan and or to put his name on E.C.L. Had it been the intention of legislature then it would have made the corresponding provisions in the Cr. P. C. or any other special enactments made for the trial of offences. Mere registration of FIR does not permit nor warrant the automatic inclusion of any such accused person on E.C.L. but once bail is granted, it is the province of that court to regulate the custody of that particular accused...."

"36....Let us remind to the learned Attorney General that according to the prosecution story the petitioner is also involved in four other criminal cases in which extradition would not be denied in any treaty with any foreign country. If in any case, the accused is absconded, the law is not helpless but a procedure to deal such situation is already provided under the Criminal Procedure Code and other relevant laws...." (emphasis added)

(xv) In the case of Riaz Ahmed v. Government of Pakistan and others, (PLD 2014 Islamabad 29) it has been held as follows:

"7. Right to movement/travel is a fundamental right of every citizen guaranteed under Articles 4, 9 and 15 of the Constitution. It is universally recognized right enshrined in Article 12(4) "Everyone shall be free to leave any country, including his own" of the Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16th December, 1966 and enforced with effect from 23rd March, 1976. Therefore, no one could be allowed to deprive a citizen from his/her fundamental rights, save in accordance with due process of law..."

"9. The authorities are under obligation to solve the problems of the general public in a fair and just manner and to decide their applications within a reasonable time. They are not supposed to sit over the issues for indefinite period without any decision."

1. In the instant case the act of respondents is sheer violation of fundamental rights, where the respondents have neither conducted any trial against petitioner in connection with his alleged involvement in terrorist activities nor has he been exonerated of the charges. The government authorities are the patrons of the citizen and they have to adhere to law for resolving the genuine issues of the aggrieved persons." (emphasis added)

(xvi) In the case of Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others, (PLD 2010 Lahore 230) it has been held as follows:

"26 The jurisprudence discussed above establishes that right to travel is part of human liberty as travel signifies freedom and liberty. Therefore, the right to travel outside the country is a fundamental right and an intrinsic part of right to liberty which is guaranteed under Article 9 of our Constitution."

"27. Taking this further, there is little doubt in saying that the world today has shrunk due to online connectivity, Internet, media and .faster means of travel. People today travel across the globe to pursue higher education, to seek more challenging and rewarding employment, to carry out academic research or to discover and expand their business into new markets of the world. Travel, therefore, has become an integral part of modern life. Right to education, right to livelihood and right to carry out lawful. profession are incomplete without having access and the right to travel to any part of the world and in particular to the educational or business centres of the world. To me right to travel, especially international travel, besides being right to liberty is also an integral part of right to life or right to a meaningful, challenging, satisfying and purposeful life. Therefore, I hold right to international travel to be a right to life in addition to right to liberty...:"

"32. Article 4 of the constitution also echoes the same right and further buttresses the procedural due process required when dealing with fundamental rights of a citizen. Articles 4 and 9 provide that a person shall not be deprived of life or liberty save in accordance with law. "Save in accordance with law" has a substantive and a procedural part. First, the Law must substantively qualify the test of being a "Law" made in the collective public interest and for common good, fully satisfying the basic fundamentals of law and having passed the test of fundamental rights provided in the Constitution. Second, the "law" or the action thereunder must also provide for procedural due process i.e., must abide by all the fundamental principles of law e.g., natural justice, right of hearing, lawful exercise of discretion, fairness, etc."

"33. The right to life and liberty of a citizen can only be restricted or abridged if it is in "accordance with law." 'Law' here means Law that caters to larger collective public interest. Therefore, the fundamental right of an individual guaranteed under the constitution can only surrender and succumb to a lawful collective interest of the community or the society. Public Interest or collective community interest is a basket of various public interests including public morality, public order, public health, national security and foreign policy of the country besides fundamental rights of the others. Public interest is an essential ingredient of any law that proposes to take away, abridge or interfere with the fundamental rights of an individual...." (emphasis added)

(xvii) In the case of Wajid Shams-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, (PLD 1997 Lahore 617) it has been held as follows:

"14. In view of the above discussion, I have no doubt in my mind that the right of a citizen to travel abroad is a fundamental right guaranteed by Articles 2A, 4, 9, 15 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. Abridgement of this fundamental right by the State through the legislative or an executive measure has to be tested on the touchstone of the Constitutional provisions. The life, liberty or property of a citizen cannot be taken away or adversely affected except in accordance with law....The liberty of the petitioner could not be curtailed by mere registering a criminal case for which he may or may not be criminally liable. Mere registration of FIR in a criminal case cannot be a ground for depriving a citizen of the exercise of all fundamental and other Constitutional rights. The registration of a criminal case has no nexus with and is extraneous to the object of the Statute." (emphasis added)

1. It is settled principle of law that if law required a particular thing to be done in a particular manner, it had to be done accordingly, otherwise it would be non-compliance with the legislative intent. In this regard, reliance is placed on a case titled as "Zia ur Rehman v. Syed Ahmed Hussain and others", (2014 SCMR 1015).

2. In another case titled as "Federation of Pakistan and another v. E-Movers (pvt) Ltd and another", (2022 SCMR 1021), it is held by the Horle-Supreme Court of Pakistan that:

3. The Constitution of the Islamic Republic of Pakistan ('Constitution') is the fountainhead of the rule of law in Pakistan. To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. The rule of law constitutes the bedrock of governance. When the law stipulates that something has to be done in a particular manner that is how it should be done. And any person who exercises authority must do so in accordance with law. The right to be treated in accordance with law was invigorated and bolstered when the Constitution was amended to provide an additional Fundamental Right by adding Article 10A to the Constitution stipulating that, For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process. The due process requirement must be met in the determination of rights and obligations. The Constitution does not define due process. Therefore, it would not be appropriate to limit its scope by defining it. But this does not mean that the due process requirement is a meaningless concept. Rather due process incorporates universally accepted standards of justice and is not dependent upon any law or laws. It is an all encompassing expression which may not be curtailed with reference to particular laws. Due process is to be understood holistically by keeping in mind the entire Constitution, which excludes arbitrary power, authoritarianism and autocratic rule." (emphasis added)

Reliance is also placed on the cases reported as PLD 2016 SC 995, 2017 SCMR 713, 2017 SCMR 1427, PLD 2018 SC 189 and PLD 2017 Islamabad 64.

1. In view of above discussion, instant writ petition is allowed, placing of name of the petitioner on PCL is declared to be unjustified, illegal, without lawful authority and of no legal effect. Respondent No.4 / Director General, Immigration and Passport, Islamabad is directed to remove name of the petitioner from PCL within a period of one week and submit compliance report before Deputy Registrar (Judicial) for perusal of the Court.

MH/133/Isl. Petition allowed.

2024 M L D 1199

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Rana Muhammad Sadiq---Petitioner

Versus

Rana Mubashir Ahmed and another---Respondents

Civil Revision No. 06 of 2024, decided on 13th March, 2024.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 7---Criminal Procedure Code (V of 1898), S. 265-D---Illegal dispossession---Application against the summoning of petitioner to face trial was dismissed---Validity---Complainant filed a complaint under Ss 3, 4 & 7 of Illegal Dispossession Act, 2005 on 17.08.2020, against the petitioner and his son, which was admitted for regular hearing---Trial Court vide order dated 30.10.2021, issued summons against the petitioner for facing trial in the complaint---Petitioner challenged the order dated 30.10.2021 against his summoning in first revision petition filed under S.439, Cr.P.C., read with S.561-A, Cr.P.C., on 10.11.2021 before High Court and also sought quashing of complaint filed by respondent---Revision petition was dismissed as having been withdrawn on 25.01.2022---After dismissal of first revision petition, proceedings before Trial Court continued whereby Trial Court accepted the petition filed under S.7 of Illegal Dispossession Act, 2005, filed by respondent vide order dated 29.04.2023---Petitioner filed second revision petition on 02.05.2023, challenging the order dated 29.04.2023, on the same grounds as taken in the first revision petition but surprisingly the petitioner did not disclose filing of first revision petition and its dismissal having been withdrawn in the second revision petition---Vide order dated 19.06.2023, second revision petition was allowed and orders dated 30.10.2021 and 29.04.2023, passed by Trial Court, were set aside, possession of the petitioner was restored and Trial Court was directed to decide the complaint in all respects within a period of six (06) months---On 07.11.2023, the petitioner filed third revision petition, challenging the order dated 06.10.2023, passed by Trial Court, whereby he was summoned as an accused to face the trial, quashing of complaint being not maintainable was also prayed/sought in said petition, which was also dismissed as withdrawn by High Court on 20.11.2023---Though it was a third revision petition but petitioner mentioned in the certificate given at the bottom of the petition that it was second revision petition being filed before the High Court---In the third revision petition the same eight grounds which were taken in the first revision petition were mentioned---Now this is the fourth revision petition filed in this Court challenging the order dated 15.01.2024, passed by Additional Sessions Judge, whereby application under S.265-D, Cr.P.C. filed by the petitioner was dismissed---Fourth revision petition had also been filed on the basis of same eight grounds which were taken in all the previous three revision petitions---Said conduct of the petitioner clearly showed that he was deliberately delaying the matter on one pretext or the other and was avoiding to face the trial---Scope of acquittal under Ss.265-K, 249-A & 265-D, Cr.P.C, was very limited---Criminal revision petition was dismissed being meritless.

Model Customs Collectorate, Islamabad v. Aamir Mumtaz Qureshi 2022 SCMR 1861; Bashir Ahmad v. Zafar ul Islam PLD 2004 SC 298; The State through Collector Customs and Excise, Quetta v. Azam Malik and others PLD 2005 SC 686; Muhammad Sharif v. The State PLD 1999 SC 1063; Ghulam Farooq Tarar v. Rizwan Ahmad and others 2008 SCMR 383 and Director (I&I) Inland Revenue, Islamabad v. Chaudhary Riaz Ahmed and 04 others ILR 2023 IHC 317 rel.

Muhammad Zafar Khokhar for the Petitioner.

Raja Muhammad Aleem Khan Abbasi for Respondent No. 1.

Muhammad Naseem Khan, State Counsel.

Tanveer Ahmed, S.I.

Order

Tariq Mehmood Jahangiri, J.---Through the instant criminal revision petition filed under section 439 Cr.P.C. read with section 435 Cr.P.C., the petitioner has challenged order dated 15.01.2024, passed by learned Additional Sessions Judge-X, West-Islamabad, whereby, application filed by the petitioner under Section 265-D Cr.P.C. was dismissed.

1. Brief facts of the case are that the petitioner and respondent No.1 are real brothers and co-owners / co-sharers of Unit No.14, consisting of two shops No.14-A and 14-B and one flat, situated in Block No.12-C, F-7 Markaz, Jinnah Super Market, Islamabad. Suit property was gifted by Ch. Daud Ahmad in favor of the petitioner and respondent No.1 through a registered Gift Deed dated 11.02.1990. After registration of gift deed, suit property was transferred in the name of petitioner and respondent No.1 in the record of CDA and till to date the suit property was not properly and legally partitioned between them. On 06.08.2020, respondent No.1 filed a suit for declaration, cancellation and permanent injunction against the petitioner which is still pending before the competent court of law.

2. Petitioner filed a suit for possession through ejectment of suit property titled as "Rana Muhammad Sadiq v. Abdul Qayoom etc." in the year 1992 before Civil Court of Islamabad in which possession of suit property was handed over to him. On 10.02.2021, respondent No.1 filed a suit for restoration of possession under section 9 of the Specific Relief Act, 1877 regarding the same property, having civil suit No. 12/2021 which is pending in the Court of learned ADJ (West) Islamabad which is the same court where the petition under sections 3, 4 and 7 of Illegal Dispossession Act, 2005 was instituted by respondent.

3. Respondent No.1 moved an application against the petitioner for registration of FIR during the pendency of civil litigation. Later on the respondent No.1 filed a complaint under Sections 3, 4 and 7 of Illegal Dispossession Act, 2005 dated 17.08.2020, against the petitioner and his son namely Umar Sadiq Rana. After submission of police report, learned trial Court on 12.07.2021, again ordered to submit report and vide order dated 29.04.2023, accepted the application filed under Section 7 of Illegal Dispossession Act, 2005 by respondent No.1 and directed the petitioner to hand over the possession of suit property to respondent No.1 during the trial. Being aggrieved from the order dated 29.04.2023, the petitioner filed criminal revision before this Court, vide order dated 19.06.2023 the petition was accepted, orders dated 30.10.2021 and 29.04.2023 and all subsequent orders of trial Court were set aside and possession of disputed shops was restored in favour of the petitioner.

4. Learned trial Court again ignoring the police report and evidence admitted the complaint under Sections 3, 4 and 7 of the Illegal Dispossession Act, 2005 and summoned the petitioner and his son as an accused in the complaint. After summoning, the petitioner moved an application under section 265-D Cr.P.C. before the learned trial Court which was dismissed vide impugned order dated 15.01.2024, passed by learned Additional Sessions Judge-X, West-Islamabad, hence instant criminal revision.

5. Learned counsel for the petitioner, inter alia, contends that impugned order dated 15.01.2024, passed by learned trial Court is against the law and facts of the case; parties are real brothers and co-owners/co-sharers in the subject property therefore Illegal Dispossession Act is not applicable; civil litigation is pending between the parties in the District and Civil Court Islamabad; findings of the learned trial Court are against the natural justice; impugned order is erroneous, not tenable under the law, hence liable to be set aside.

6. On the other hand, learned counsel for respondent No.1 has controverted the arguments advanced by learned counsel for the petitioner and stated that impugned order is well reasoned and has been passed in accordance with law and has prayed for maintaining the same.

7. Arguments advanced by learned counsel for the petitioner and learned counsel for the respondent have been heard and record has been perused with their able assistance.

8. Respondent No.1 / complainant filed a complaint under sections 3, 4 and 7 of illegal Dispossession Act, 2005 on 17.08.2020, which was admitted for regular hearing. Learned trial Court vide order dated 30.10.2021, issued summons against the petitioner for facing trial in the complaint.

9. The petitioner challenged the order dated 30.10.2021, against his summoning in first revision petition filed under Section 439 Cr.P.C. read with Section 561-A Cr.P.C. on 10.11.2021 before this Court and also sought quashing of complaint filed by respondent. First revision petition was dismissed as having been withdrawn on 25.01.2022, by Hon'ble Bench-II of this Court.

10. Following grounds for quashing of complaint filed under Sections 3, 4 and 7 of Illegal Dispossession Act, 2005 and setting aside summoning order dated 30.10.2021, were taken in the first revision petition:

i. That the impugned order dated 30.10.2021 of the trial Court is against the law and facts of the case.

ii. That the learned trial Court did not consider the first Report under section 173 Cr.P.C. and on the same set of evidence, statement of witnesses and parties considered the second Report under section 173 Cr.P.C. and summoned the petitioners as accused persons in the complaint.

iii. That after submission of first Report under section 173 Cr.P.C., no further facts or material was surfaced and no new statements of any witnesses were recorded to submit the second Report under section 173 Cr.P.C. which itself make the above said two reports self-contradictory and against the law and facts.

iv. That admittedly the parties are real brothers and co-sharers and co-owners in the subject / suit property and therefore the Illegal Dispossession Act is not applicable to the co-owners and co-sharers as per dictum laid down by the superior Courts, which fact has been totally ignored by the learned trial Court.

v. That admittedly the civil litigation is pending adjudication before the district and civil courts and the fate of the subject property is yet to be decided by them and the factually controversy regarding the said property is to be declared by the civil Court and in such situation the criminal proceedings are not called for.

vi. That the respondent / complainant avail the remedy of suit for restoration of possession under Section 9 of the Specific Relief Act 1877, having civil suit No.12/2021 which is pending in the court of learned Additional District Judge-X (West) Islamabad, which is also remedy for possession of property and thereafter instituting the criminal proceeding clearly show that the intention of the respondent / complainant is only to humiliate and harass the petitioners / respondents in one way or the other.

vii. That the learned Trial Court misconstrued the law on the subject and illegally summoned the petitioners as accused persons without appreciating the facts and circumstances of the first report and the valuable evidence available on the file.

viii. That the first report under Section 173 Cr.P.C. declared the petitioners in possession of the suit / subject property before the date of occurrence after conducting proper inquiry and thereafter as per the second report under section 173 Cr.P.C. by the same police station contradictory fact were brought therein which fact has totally been ignored by the trial Court."

1. After dismissal of first revision petition, proceedings before learned trial Court continued whereby learned trial Court accepted the petition filed under section 7 of Illegal Dispossession Act, 2005 filed by respondent vide order dated 29.04.2023. The petitioner filed second revision petition on 02.05.2023, challenging the order dated 29.04.2023, on the same grounds as taken in the first revision petition but surprisingly the petitioner did not disclose filing of first revision petition and its dismissal having been withdrawn by Hon'ble Bench-II of this Court in the second revision petition. Vide order dated 19.06.2023, second revision petition was allowed and orders dated 30.10.2021 and 29.04.2023, passed by learned trial Court were set aside, possession of the petitioner was restored and learned trial Court was directed to decide the complaint in all respects within a period of six (06) months.

2. On 07.11.2023, the petitioner filed third revision petition bearing No.172/2023, challenging the order dated 06.10.2023, passed by learned trial Court, whereby he was summoned as an accused to face the trial, quashing of complaint being not maintainable was also prayed / sought in said petition, which was also dismissed as withdrawn by this Court on 20.11.2023.

3. Though it was a third revision petition but learned counsel for the petitioner mentioned in the certificate given at the bottom of the petition that:

"This is Second Revision Petition being filed before this Honorable Court"

1. In the third revision petition the same eight grounds which were taken in the first revision petition were mentioned.

2. Now this is the fourth revision petition filed in this Court challenging the order dated 15.01.2024, passed by learned Additional Sessions Judge-X, West-Islamabad, whereby application filed under section 265-D Cr.P.C. by the petitioner was dismissed.

3. Instant / fourth revision petition has also been filed on the basis of same eight grounds which were taken in all the previous three revision petitions.

4. As the previous two criminal revision petitions seeking quashing of complaint have already been dismissed by this Court, the petitioner has filed second revision petition by misrepresentation and concealment of facts that first revision petition was dismissed by Hon'ble Bench-II of this Court.

5. This Court vide order dated 19.06.2023, in Criminal Revision petition No.69 of 2023, has directed the learned trial Court to decide the complaint in all respects within a period of six (06) months. Said order has never been assailed and attained finality, according to which learned trial Court was bound to decide the complaint on or before 19.12.2023.

6. Above-mentioned conduct of the petitioner clearly shows that he is deliberately delaying the matter on one pretext or the other and is avoiding to face the trial.

7. There is police report dated 17.09.2021, against the petitioner submitted in the learned trial Court. Report dated 22.08.2020, by A.S.P / SDPO Kohsar Circle is available on record, wherein after conducting thorough inquiry, he has given following findings:

8. Said inquiry report of ASP / SDPO was also agreed by the S.P (City) Zone, Islamabad vide his report dated 31.08.2020. Even disciplinary proceedings had been initiated against the then S.H.O Police Station Kohsar and Athar Hussain, A.S.I, whereby minor punishment of forfeiture of two years approved service was awarded.

9. There are eye-witnesses of the occurrence whose statements are available on record.

10. Scope of acquittal under Sections 265-K, 249-A and 265-D, Cr.P.C. is very limited. In this regard law laid down by Hon'ble Supreme Court of Pakistan is as follows:

i. In case of "Model Customs Collectorate, Islamabad v. Aamir Mumtaz Qureshi" (2022 SCMR 1861), it has been held that:

"There is no cavil to the proposition that by enacting sections 249-A and 265-K, Cr.P.C., the Legislature provided power to acquit an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that the charge is groundless or that there is no probability of the accused being convicted of any offence. But acquittal, under the said sections, could be made only if there was no probability of conviction of the accused. However, each case must be judged on its own special facts and circumstances and the reasons are to be recorded in support of conclusion that charge is groundless or that there is no probability of accused being convicted. If there is remote probability of conviction then of course courts are not empowered to invoke the said provisions i.e. 249-A and 265-K Cr.P.C. Reliance in this regard may be placed on the case of The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman (2005 SCMR 1544) wherein it was held that though there is no bar for an accused person to file application under section 249-A, Cr.P.C. at any stage of the proceedings of the case yet the facts and circumstances of the prosecution case will have to be kept in mind and considered in deciding the viability or feasibility of filing an application at any particular stage. The special or peculiar facts and circumstances of a prosecution case may not warrant filing of an application at a stage."

ii. In case titled as "Bashir Ahmad v. Zafar ul Islam" (PLD 2004 SC 298) Hon'ble Supreme Court of Pakistan did not approve decision of criminal cases on an application under section 249-A, Cr.P.C. or such allied or similar provisions of law, namely, section 265-K or section 561-A, Cr.P.C. and observed that usually a criminal case should be allowed to be disposed of on merits after recording of the prosecution evidence, statement of the accused under section 342, Cr.P.C., recording of statement of accused under section 340(2), Cr.P.C. if so desired by the accused persons and hearing the arguments of the counsel of the parties and that the provisions of section 249-A, section 265-K and section 561-A of the Cr.P.C. should not normally be pressed into action for decision of fate of a criminal case especially when apparently there is probability of conviction after recording evidence. In the present case, trial court disrupted the normal course of law against the mandate of supra judgment i.e. Bashir Ahmad v. Zafar ul-Islam and others (PLD 2004 SC 298).

iii. In a case titled as "The State through Collector Customs and Excise, Quetta v. Azam Malik and others" (PLD 2005 SC 686) it is held as under:-

"22. This brings us to the third question i.e. whether the prosecution had sufficient material/evidence to warrant the prosecution of the respondents or there was no probability of accused being convicted of any offence. We have gone through the FIR registered against the respondents and the absconding co-accused as also the evidence led before the Court. There were serious allegations that there was tampering/overwriting/cutting of the relevant register of bills of entry, the matter was inquired into at the departmental level and the allegations were found to be correct. Ex facie there was documentary, oral and circumstantial evidence to prove the charges. In the face of this material the Trial Court could not have invoked section 265-K, Cr.P.C. and acquit the respondents."

Reliance may also be placed on the cases of "Muhammad Sharif v. The State" (PLD 1999 SC 1063), "Ghulam Farooq Tarar v. Rizwan Ahmad and others" (2008 SCMR 383).

2024 M L D 1207

[Islamabad]

Before Aamer Farooq C.J, and Tariq Mehmood Jahangiri, J

Fawad Ahmed---Petitioner

Versus

National Accountability Bureau through Chairman and 2 others---Respondents

Criminal Misc. No. 518-B of 2024, decided on 1st April, 2024.

Criminal Procedure Code (V of 1898)---

----S.497---National Accountability Ordinance (XVIII of 1999), Ss. 4 (2)(b), 9 (a) & (b) [as amended by National Accountability (Second Amendment) Act (XVI of 2022)]---Corruption and corrupt practices---Bail, grant of---Completion of codal formalities---Oral evidence---Petitioner was arrested for exerting his influence for approval of a dual carriageway---Project was approved by CDWP and ECNEC, after completion of all legal and codal formalities, and the contract was awarded to M/s Frontier Works Organization---In the light of S.4(2)(b) of National Accountability Ordinance, 1999, matter of petitioner did not fall within the ambit of National Accountability Bureau---There was no other evidence available against petitioner except statements of two witnesses---Bail is not to be withheld as a punishment---There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds exist to disclose their complicity---Ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail after arrest granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run---Bail was allowed, in circumstances.

Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Muhammad Jahangir Badar v. The State and others PLD 2003 SC 525; Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others 2015 SCMR 1092; Talat Ishaq v. NAB PLD 2019 SC 11; Muhammad Jawed Hanif Khan and another v. National Accountability Bureau Sindh and others 2020 SCMR 185; Ghulab Khan v. Chairman NAB and another 2020 SCMR 285; Nazir Ahmed Shaikh and others v. National Accountability Bureau and others 2020 SCMR 297; Khawaja Salman Rafique and another v. National Accountability Bureau through Chairman and others PLD 2020 SC 456; Dinshaw Hoshang Anklesaria v. National Accountability Bureau (NAB) through Chairman and others 2021 SCMR 699; Hussain Lawai v. The State and 2 others 2022 MLD 405; Taha Raza and others v. The State and others; 2022 PCr.LJ 838; Jahanzeb and others v. State through A.G. Khyber Pakhtunkhwa Peshawar and another 2021 SCMR 63; Saeed Ahmed v. The State 1996 SCMR 1132; Manzoor and 4 others v. The State; PLD 1972 SC 81 and Zaigham Ashraf v. The State and others 2016 SCMR 18 rel.

Qaiser Imam Ch., Khan Mulk Tarar and Ali Raza for petitioner.

Muhammad Rafay Maqsood and Hafiz Ejaz Mehboob, Special Prosecutors, NAB along with Mohsin, D.D / I.O, NAB.

Order

TARIQ MEHMOOD JAHANGIRI, J.---Through the instant petition, the petitioner, seeks bail after arrest under Section 497 Cr.P.C. read with Section 9(b) of National Accountability Bureau Ordinance, 1999 in the NAB inquiry, dated 10.11.2023.

1. Brief facts of the case in hand as alleged are that a project of dual carriageway connecting Pind Dadan Khan to Jhelum was approved wherein the petitioner has allegedly used his influence for the purposes of approval of the project and also benefitted himself by establishment of a fuel pump etc and purchase of the land for his personal use, received illicit gratification from contractor M. Ali and misused authority and influenced to facilitate his relatives and associates in acquiring land alongwith the dual carriageway, resulting in financial losses to the national exchequer, misused the public funds and diverted Rs.7 billion allocation by the Punjab Government.

2. Learned counsel for the petitioner, inter alia, contends that the petitioner is an Ex-MNA / Ex-Federal Minister and advocate of Supreme Court of Pakistan; section 9 and other provisions of NAB Ordinance are not attracted against him; this is politically motivated case and has been brought just for victimization; none of the employees / officials of the concerned departments have been arrayed as accused in subject inquiry; continued detention of the petitioner poses a risk of irreparable harm to his reputation, personal life, and professional standing; he is not connected whatsoever with the commission of any offence and has been involved falsely with ulterior motives and bad intentions, hence is entitled for grant of bail.

3. Conversely, learned Special Prosecutors NAB have controverted the arguments advanced by learned counsel for the petitioner and state that sufficient evidence is available against the petitioner; he has committed a heinous crime; he has caused huge financial loss to the national exchequer, hence is not entitled for grant of bail after arrest.

4. We have heard the arguments advanced by learned counsel for the petitioner / accused, learned special prosecutors NAB and perused the record with their able assistance.

5. Admittedly, PC-1 of Dual Carriageway project titled "Dualization of Lillah Interchange (M-2) via Pind Dadan Khan to Jhelum, Bypasses (02 number), Length: 128 Kilometer, District Jhelum was proposed by the Planning and Development Board, Government of the Punjab, to be executed by the Communication and Works Department, Government of the Punjab. PC-1 was considered / approved by the Central Development Working Party (CDWP) on 29.05.2021, and recommended the project to the Executive Committee of National Economic Council (ECNEC) and after completion of all legal formalities, contract was awarded to M/s Frontier Works Organization on 29.10.2021. Project was approved by ECNEC, advised / consulted by NESPAK, fully funded through Federal Public Sector Development Program and being executed by FWO.

6. It is admitted by the learned Special Prosecutors NAB that no any officials of the aforementioned agencies have been cited as an accused in the case.

7. Main allegation against the petitioner is that he obtained an amount of Rs.5 million from one Muhammad Ali for the grant of said contract to him. Statement of Muhammad Ali regarding payment of Rs.5 million has been recorded by the NAB authorities, whereby he has stated that he paid an amount of Rs.5 million to the petitioner and his brother Faisal Chaudhary with the assurance that they will award the project of dualization carriageway to him. Subsequently, firm of Muhammad Ali submitted pre-qualification documents but the tender was awarded to FWO.

8. Other allegation against the petitioner is that one Iftikhar Anwar, the then XEN Highway Division, Jhelum has recorded his statement alleging that he informed the petitioner that PD Khan to Jhelum road did not need dualization due to less traffic, however, the petitioner insisted that a feasibility report be prepared on priority basis. Accordingly feasibility report was prepared and submitted to the competent authority for further studies.

9. The petitioner was arrested in this case on 19.12.2023, and the case is still at inquiry stage. Even it has not been recommended for investigation or for filing the reference.

10. According to the National Accountability (Amendment) Act, 2022, (Act No.XI of 2022), Sections 4(2) and 4(2)(b) of National Accountability Ordinance, 1999 provide that:

"4(2). The provisions of this Ordinance shall not be applicable to the following persons or transactions, namely:

4(2)(b) decisions of Federal or Provincial Cabinet, their Committees or Sub-Committees Council of Common Interests (CCI), National Economic Council (NEC), National Finance Commission (NFC), Executive Committee of the National Economic Council (ECNEC), Central Development Working Party (CDWP), Provincial Development Working Party (PDWP), Departmental Development Working Party (DDWP),[Board of Directors of State Owned Enterprises (SOEs) and Board of Trustees/Directors of all Statutory Bodies,] the State Bank of Pakistan and such other bodies except where the holder of the public office has received a monetary gain as a result of such decision;

1. According to National Accountability (Second Amendment) Act, 2022, (Act No.XVI of 2022), Section 5(o) of National Accountability Ordinance, 1999 provides that:

"Offence" means the offences of corruption and corrupt practices and other offences as defined in this Ordinance [of the value not less than five hundred million rupees] and includes the offences specified in the Schedule to this Ordinance;"

1. As the project has been approved by the CDWP and ECNEC, after completion of all legal and codal formalities, the contract has been awarded to M/s Frontier Works Organization, so in the light of Section 4(2)(b) of the National Accountability Ordinance, 1999, the matter of the petitioner does not fall within the ambit of National Accountability Bureau.

2. Learned Special Prosecutors NAB have admitted that there is no other evidence available against the petitioner except the above mentioned two statements.

3. Reliance in this regard is placed on the following judgments, whereby the accused of National Accountability Bureau were granted bail after arrest:

i. "Muhammad Saeed Mehdi v. The State and 2 others" (2002 SCMR 282)

ii. "Muhammad Jahangir Badar v. The State and others" (PLD 2003 SC 525)

iii. "Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others" (2015 SCMR 1092)

iv. "Talat Ishaq v. NAB", (PLD 2019 SC 11)

v. "Muhammad Jawed Hanif Khan and anothers v. National Accountability Bureau Sindh and others" (2020 SCMR 185).

vi. "Ghulab Khan v. Chairman N.A.B and another" (2020 SCMR 285)

vii. "Nazir Ahmed Shaikh and others v. National Accountability Bureau and others" (2020 SCMR 297)

viii. "Khawaja Salman Rafique and another v. National Accountability Bureau through Chairman and others" (PLD 2020 SC 456)

ix. "Dinshaw Hoshang Anklesaria v. National Accountability Bureau (NAB) through Chairman and others" (2021 SCMR 699)

x. "Hussain Lawai v. The State and 2 others", (2022 MLD 405 [Islamabad) (Division Bench of this Court)

xi. "Taha Raza and others v. The State and others", (2022 PCr.LJ 838) (Division Bench of this Court)

1. As far as contention of the learned counsel that case of the petitioner squarely falls within the ambit of section 497(2), Cr.P.C. is concerned, the same is reproduced as under:-

497. When bail may be taken in cases of non-bailable offence.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

Perusal of the aforesaid provision reveals that intent of the legislature disclosing pre-condition to establish the word "guilt" against whom accusation is levelled has to be established on the basis of reasonable ground, however, if there exists any possibility to have a second view of the material available on the record then the case advanced against whom allegation is levelled is entitled for the relief in the spirit of section 497(2), Cr.P.C. Reliance in this regard is placed on a case titled as "Jahanzeb and others v. State through A.G. Khyber Pakhtunkhwa Peshawar and another" (2021 SCMR 63).

1. As the entire case depends on documentary evidence, which has been collected by the NAB / Investigating Agency, in this regard guidance be taken from a case titled as "Saeed Ahmed v. The State" (1996 SCMR 1132) that:

"The case entirely depends upon documentary evidence which seems to be in possession of the prosecution and challan has already been submitted. It has further been held that as there is no possibility of tampering with the evidence, which is entirely documentary in nature and in possession of the prosecution". Reliance is also placed upon a case titled as "Muhammad Shabbir v. The State and others" (2020 YLR Note 22).

1. It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep the people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail after arrest granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. Reliance is placed on a case reported as "Manzoor and 4 others v. The State" (PLD 1972 SC 81)".

2024 M L D 1247

[Islamabad]

Before Mohsin Akhtar Kayani and Sardar Ejaz Ishaq Khan, JJ

Ali and others---Appellants

Versus

The State---Respondent

Criminal Appeals Nos. 161, 177, 178 and 179 of 2023, decided on 16th April, 2024.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Confession by one of the accused persons exonerating his co-accused---Scope---Prosecution case was that six kilograms charas, 4.8 kilograms opium and 14 kilograms heroin were recovered from the possession of the accused persons while they were going on a car---Record showed that while answering the charge being framed against him, one of the accused persons confessed before the Trial Court that the other two accused persons were innocent and he alone was responsible for concealing the drugs in the car trunk and, by implication, the prosecution story of distinct recoveries from two accused persons from within the car was not true---Trial Court rightly disbelieved the confession on the basis that the ocular testimonies of prosecution witnesses were too categorical in relation to distinct disclosures and individual recoveries from each of the accused persons for the Court to believe to the contrary---Trial Court also rightly repelled the submission that it could not convict said accused on the basis of the confession while ignoring its exculpatory part in relation to the other two accused, by observing that it was convicting that accused on the basis of the prosecution evidence in its totality and not on the basis of his confession---Appeal against conviction was dismissed, in circumstances.

The State v. Rashm Ali Khan PLD 2016 SC 471 ref.

Javed Iqbal v. The State 2023 SCMR 139 rel.

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

----Ss. 9(c) & 29---Possession of narcotic---Presumption---Scope---Section 29 Control of Narcotic Substances Act, 1997, created the presumption of the commission of an offence under said Act where a person is found in possession of narcotics, for the possession of which he fails to account satisfactorily---Possession comes first and accounting for it comes later---If there is no possession, there is no accounting for such possession and mere knowledge of the presence of drugs without such possession does not suffice even to raise the presumption under S.29 of the Act, 1997.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Prosecution case was that six kilograms charas, 4.8 kilograms opium and 14 kilograms heroin were recovered from the possession of the accused persons while they were going on a car---Record showed that each accused made his and her own independent disclosure and got recovered the drugs under his and her possession and control---One of the accused persons got the drugs recovered from under his front seat, female accused from the travel bag under her possession and other accused from the car boot---There was nothing at all in the evidence to conclude that each of the passengers had control and possession of the drugs carried by his or her co-passengers their knowledge of their co-passengers caches notwithstanding---Joint and collective liability rests on joint and collective possession---As per the prosecution's own case each co-passenger made a distinct disclosure and got recovered only the drug caches that was in his or her possession---However, it would be remiss in attributing an implied statement or admission to the accused persons that each one of them had asserted some sort of possessory right and control over his or her co-passengers' drug caches---Prosecution's zeal to secure the maximum sentences must not let the Court be blinded to the fundamental burden of proof beyond reasonable doubt, which could not be replaced by a presumptive argument of each accused being assumed to be in equal possession and control of the other co-passengers' caches for an incantation of the doctrine of joint and collective liability---Appeal against conviction was dismissed, in circumstances.

Shan Zeb Khan and Tayyab Abbasi for Appellant (in Criminal Appeal 161 of 2023).

Mehr Muhammad Irfan Khan and Syed Naqash Ali Shah for Apellant (in CriminalAppeal No. 177 of 2023).

Sajeel Jan for Appellant (in Jail appea7l 178 of 2023).

Rana Zulfiqar Ali, Special Prosecutor ANF along with Inspector Bashir Khan the State.

Date of hearing: 1st February, 2024.

Order

Sardar Ejaz Ishaq Khan, J.---The three appellants before us were convicted by the Special Court vide judgment dated 14.04.2023, in FIR no. 33/2022 dated 21.03.2022, for the offence of possession of narcotics under sections 9(c) and 15 of the Control of Narcotic Substances Act, 1997 (CNSA), registered at police station ANF, Islamabad. They were sentenced to rigorous imprisonment for life and further 5 months simple imprisonment in default of payment of fine of Rs.100,000/-. Benefit of section 382-B of CrPC was also extended to them.

1. Per the FIR, on a tip-off from its secret informer, the ANF intercepted the car driven by the appellant Ali, with the appellant Waseem occupying the front seat and the appellant Qurat-ul-Ain in the rear seat with her 6 years old daughter and 5 years old son. On questioning, the front-seater Waseem disclosed the presence of charas under his seat, whereupon the ANF recovered 5 packets of charas from under his seat, each weighing 1200 grams aggregating to 6 kgs of charas. Next, the appellant Qurat-ul-Ain disclosed the presence of drugs in her () travel bag, which was then opened and found to contain opium in 4 packets weighing 1200 grams each aggregating to 4.8 kgs of opium. Next, after further investigation, the appellant Ali the driver disclosed the presence of narcotics in the car boot, which was then opened and found to contain heroin in 14 packets weighing 1 kg each aggregating to 14 kilograms of heroin.

Even though, according to the prosecution case, each accused made a separate and independent disclosure of possession of narcotics that were recovered from such individual discloser's possession, and even though none of the appellants had anything to say of the drugs recovered from and at the pointing of each other accused, the learned trial Court applied the doctrine of joint possession and sentenced the three accused for the aggregate quantity of 6 kgs charas, 4.8 kgs opium and 16 kgs heroin, relying on The State vs Rashm Ali Khan.

1. We have reviewed the judgment under appeal and, except on the point of sentencing, find it conforming to the record. The judgment notes the various exhibits assigned to the complaint, the FIR, the case property, the recovery memo, the signatures of the witnesses to the recovery memo, and the test reports of the samples by the National Institute of Health (NIH) in arriving at its conclusion of conviction. We therefore do not need to repeat the numbers of those respective exhibits. Further, no occasion arises on the basis of the memo of appeal or the submissions of the learned counsel for us to deal with any specific exhibit in any further detail in the context of the testimony of the respective witnesses, except to the extent hereinafter mentioned.

2. The prosecution witnesses, all ANF officers, remained consistent in their testimony overall and no major breakthroughs accrued to the defence in the cross-examination. The analysis of their testimony in the judgment under appeal is accurate and we therefore do not consider it necessary to repeat it all over again.

3. While answering to the charge being framed against him, the appellant Waseem confessed before the trial Court that the other two appellants were innocent and he alone was responsible for concealing the drugs in the car trunk and, by implication, the prosecution story of distinct recoveries from Ali and Qurat-al-ain from within the car was not true. The learned trial Court disbelieved the confession on the basis that the ocular testimonies of prosecution witnesses were too categorical in relation to distinct disclosures and individual recoveries from each of the appellants for the Court to believe to the contrary. The learned trial Court also repelled the submission that it could not convict Waseem on the basis of the confession while ignoring its exculpatory part in relation to the other two accused, by observing at paragraph 14 of the impugned judgment that it was convicting Waseem on the basis of the prosecution evidence in its totality and not on the basis of his confession. This submission was repeated before us at the bar, citing Javed Iqbal v. The State, that a confession had to be believed or disregarded in toto. However, we are in agreement with the learned trial Court's rejection of the confession in toto for the reason that the prosecution evidence was overwhelmingly strong and consistent in terms of distinct disclosures and recoveries from each of the accused and could not be subordinated to the confession of the accused, especially where he could not produce any evidence in support of the antecedental elements of his confession taken in his statement under section 342 Cr.P.C., namely, the particulars of the funeral in the family at Peshawar which he went to attend with his sister-in-law, the co-accused Qurat-ul-Ain, in the rented car with Ali the co-accused driver; these two antecedent secondary facts had to be established as 'relevant facts' under Articles 21 and 22 of the Qanun-e-Shahadat Order, 1984, for the particulars of the confession and the defence narrative in the statement under section 342 Cr.P.C. to carry any weight. With no car rental agreement or affidavit of the rental agency on record, with no particulars of the overnight stay at Peshawar brought in evidence, with no member of the bereaved family from Peshawar turning up to give evidence of the particulars of the deceased and the holding of the funeral ceremony, these secondary facts remain unproven and therefore the edifice of Waseem's confession qua a primary fact also falls.

4. Having read the impugned judgment in light of the evidence on record, we do not find any reason to overturn the judgment of conviction of the appellant, which is therefore maintained. However, we are not in agreement with the sentence premised on the conclusion of joint possession, to which we now turn after a discursive analysis of the relevant case law on the subject.

5. It must be remembered that the offences under the CNSA are of the cultivation, possession, import, transport and transhipment of the narcotics specified in the CNSA. These are all positive acts. The CNSA does not create an offence of "knowledge" of narcotics; the offence, in the context under discussion, is "possession" of narcotics. There is nothing in the CNSA to construct an extended doctrine of criminal liability of "knowledge" of possession by other persons when that knowledge itself does not translate into possession, actual or constructive, of the person possessing that knowledge. Just to give an illustration, a co-passenger coming to know that the passenger on the adjacent seat has drugs in his travel bag, when the latter opened it to take out his lunch, does not by any means make the former jointly and collectively liable for the possession of drugs by the latter. And this is what a closer analysis of the judgments holds, contrary to the quick and dirty conclusion urged by the prosecution that the knowledge by X of the possession of drugs by a co-passenger Y in a car ipso facto makes X a "joint possessor" of the drugs in the actual possession of Y: the case law is that, for the aforesaid conclusion of fact to follow, additional evidence must be present corroborating that conclusion and it cannot be so concluded by implication alone.

(a) In Amanat Ali v. The State, the driver of a taxi car was deemed to be in exclusive possession of the heroin that was concealed in secret cavities where the prosecution did not establish beyond reasonable doubt conscious knowledge on the part of the co-passengers, accepting indirectly that mere presence of a person as a passenger in a taxi car was not sufficient evidence of his participation in the crime. The Supreme Court observed that "There was no evidence that they [the co-passengers] being companions of Amanat Ali [the driver] had the conscious knowledge of heroin in the taxi car to treat them in joint possession of recovered heroin." That is to say, joint possession depends on the evidence of conscious knowledge and acquiescent control of the joint possessor.

(b) The joint and collective liability principle in drug offences is founded on the principles of common intention and common design. In The State v. Rashm Ali Khan, a five-member bench of the Supreme Court affirmed this as follows:

If in a case narcotic substance is recovered from the possession of more than one convict then, following the principle of their joint and collective liability, each one of them will be liable for punishment on the basis of the whole quantity of narcotic substance so recovered. To elucidate and fortify this view, reference may be made with advantage to Sections 34, 35, 149, 394, 396, 460 etc. of the Pakistan Penal Code. (emphasis added)

The conditional 'if' in Rashm Ali was ignored by the learned trial Court in this case in concluding joint liability, forgetting that the Supreme Court in Rashm Ali was hearing appeals from the High Court.s decisions with an affirmed finding of fact that the 'narcotic substance was recovered from the possession of more than one convict' but in order to reduce the sentences, the High Court apportioned the total recovered quantity over the various accused for each to be deemed carrying a portion only of the total quantity. It was this last act that was set aside by the Supreme Court. The learned trial Court applied the joint liability principle without due regard to the factual basis of the application of that principle, namely, that the narcotics must first have been found on evidence to have been recovered from the possession of more than one convict.

(c) Dating as far back as 1988, the Supreme Court in Nadir Khan v. The State applied the principle of 'constructive knowledge' on the two accused taking a vehicle from Peshawar to Karachi with 49 kgs of heroin in secret cavities in the following words:

For being persons in-charge of the vehicle for such a long journey, they must be saddled with the necessary knowledge with regard to the vehicle and its contents. The probabilities or the presumptions are all dependent on the circumstances of each case….

[emphasis supplied]

(d) In Muhammad Noor v. The State elaborating on the word 'possess' the Supreme Court observed:

It is necessary to show that the accused had the article, which turned out to be narcotic drug. In other words the prosecution must prove that the accused was knowingly in control of something in the circumstances which showed that he was assenting to be in control of it. …

The Legislature could not have intended to make mere physical custody without knowledge an offence, therefore, the possession must be conscious possession. [emphasis supplied]

And we say, by the same token, that the Legislature could not have intended to make mere knowledge absent possession with control an offence!

The Supreme Court enunciated the following principle of law:

In such type of cases the prosecution is required to produce evidence to show that the said persons were in the joint possession and control of the vehicle or that they had any concern or dealt with property in any manner, particularly, in the case when the narcotics substance was concealed in the secret cavities or digi or hidden from all other persons… if the property was lying open within the view of the said persons or they knew the placement of the property then the situation would be quite different.

Thus mere presence of the appellants in the vehicle would not involve them in the case unless conspiracy or abetment of the offence is shown and proved.

Applying the above principles, the Supreme Court acquitted the three passengers due to want of evidence that they had the knowledge and control of the drugs present in the concealed cavities of the car.

(e) In Kamran Shah and others v. The State, in acquitting the co-passengers travelling in a bus with secret cavities out of which drugs were recovered, the Supreme Court expressed the principle under discussion as follows:

It was thus incumbent upon the prosecution to establish conscious possession of the contraband substance on the part of the present appellants but no evidence worth its name had been brought on record in that respect.

(f) In Hussain Shah v. The State, the cleaner of a trailer-truck was acquitted while its driver convicted for concealing 12000 kgs charas in 600 bags in the secret cavities of the trailer, even though the cleaner sat on the front seat of the vehicle next to the driver seat when apprehended, and even though the prosecution urged that the cleaner by common norms was a helper of the driver of the trailer. The Supreme Court acquitted the cleaner because it concluded on the basis of the record as follows:

The law is settled by now that if the prosecution fails to establish conscious possession or knowledge in that regard then a passenger cannot be convicted solely on the basis of his availability inside the vehicle at the relevant time.

1. It must always be remembered that section 29 CNSA creates the presumption of the commission of an offence under that Act where a person is found in possession of narcotics, for the possession of which he fails to account satisfactorily. Possession comes first, and accounting for it comes later. If there is no possession, there is no accounting for such possession, and mere knowledge of the presence of drugs without such possession does not suffice even to raise the presumption under section 29 CNSA.

2. The principles can therefore be summarised as follows:

a) A driver will almost always be fastened with knowledge and possession of drugs found in the vehicle, whether in secret cavities or otherwise concealed from plain sight, such as in a bag or in the car boot. The onus will shift on to him under section 29 CNSA to account for their possession under any exceptions under the Act, failing which the offence of possession under section 6 CNSA will be complete.

b) The passengers' case will vary according to whether (i) the drugs were in plain sight, or (ii) were hidden in a secret cavity or otherwise concealed, such as in a bag that did not belong to that passenger or in the car boot:

i) If former, knowledge of presence of drugs in the car will be a straight-forward inference and the passenger will be liable for the entire quantity on the principle of joint and collective liability;

ii) If latter, the onus will remain on the prosecution to adduce evidence of the passenger.s knowledge of the presence of drugs in the vehicle in order to attract the principle of joint and collective liability. Only if the prosecution produces such evidence that the onus will shift to the co-passenger under section 29 of the CNSA to disprove knowledge so as to exclude the doctrine of joint and collective liability;

c) Where the driver and the passenger each makes a distinct disclosure of a cache of drugs recovered from his personal possession and control, the prosecution will have to adduce additional evidence that each was jointly and collectively liable for the aggregate quantity. Although the threshold for such a deduction will be lower than, say, where the recovery is from a secret cavity, if the disclosure remains confined to the cache recovered from the discloser and no disclosure is made regarding the caches recovered from the other passengers under their respective disclosures, joint possession by each of each other.s caches, and vice versa, will require additional evidence and cannot be just assumed to be joint by a presumption alone.

1. Applying the aforesaid analysis to the case in hand, the prosecution case firmly believed by the learned trial Court, and by us too, was that each accused made his and her own independent disclosure and got recovered the drugs under his and her possession and control: Waseem from under his front seat, Qurat-ul-Ain from the travel bag under her possession9, and Ali from the car boot. There is nothing at all in the evidence for us to conclude, as a fact established beyond reasonable doubt, that each of the passengers had control and possession of the drugs carried by his or her co-passengers, their knowledge of their co-passengers, caches notwithstanding. We reiterate; joint and collective liability rests on joint and collective possession - when per the prosecution.s own case each co-passenger makes a distinct disclosure and gets recovered only the drug caches that was in his or her possession, we would be remiss in attributing an implied statement or admission to the appellants that each one of them had asserted some sort of possessory right and control over his or her co-passengers' drug caches. The prosecution's zeal to secure the maximum sentences must not let the Court be blinded to the fundamental burden of proof beyond reasonable doubt, which cannot be replaced by a presumptive argument of each accused being assumed to be in equal possession and control of the other co-passengers' caches for an incantation of the doctrine of joint and collective liability.

2. The FIR was registered on 21.03.2022, that is, before the 2022 amendments to the CNSA were promulgated on 06.09.2022, and therefore the sentencing regime prescribed under Ghulam Murtaza v. The State will apply. Accordingly:

2024 M L D 1422

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Amanat Ullah Khan---Appellant

Versus

Waseem Iqbal and others---Respondents

R.F.A. No. 76 of 2019, decied on 21st June, 2024.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54--- Qanun-e-Shahadat (10 of 1984), Art. 129(g) --- Suit for cancellation of letter, declaration and injunction--- Withholding of evidence--- Maxim "omnia praesumuntur contra spoliatorem---Presumption in law---Appellant / plaintiff claimed to be owner of plot in question and sought cancellation of letter issued by Capital Development Authority (CDA) transferring half share in the suit property from his name to respondent / defendant---Appellant / plaintiff did not produce his father in evidence whose testimony would have thrown light on the controversy---Held, that rule of presumption is based on the principle that no one can be allowed to take advantage of his own wrong---Such rule contains a well-known Latin maxim "omnia praesumuntur contra spoliatorem (all things are presumed against the wrongdoer)---Where a person withholds evidence, every presumption to his disadvantage, consistent with the facts admitted or proved, has to be adopted---Trial Court was correct in observing that appellant / plaintiff did not produce any evidence to prove as to how he gained knowledge regarding transfer of half share in suit property in favour of respondent / defendant---High Court declined to interfere in finding of Trial Court that half share in suit property was in fact purchased by appellant's / plaintiff's father when he was eight-year-old minor and had no means to purchase such property---Trial Court correctly termed appellant's / plaintiff's father as ostensible owner of such share--- Appellant / plaintiff was not able to impeach transaction for the transfer of half share in suit property in favour of respondent/ defendant through transfer letter in question---Respondent/ defendant having become owner of entire suit property on the basis of such property was well within his rights to have transferred it onwards to person "JA"--- High Court declined to interfere in judgment and decree passed by Trial Court--- Appeal was dismissed, in circumstances.

Ghulam Nabi v. Faisal Naveed 2003 SCMR 1794; Abdul Ghani v. Yasmeen Khan 2011 SCMR 837; Sultan v. Muhammad Hussain 2006 MLD 659; Muhammad Umar Khan v. Aziz Begum 2001 MLD 448; Aamir Masood v. Khurshid Begum 2001 MLD 159; Muhammad Adil v. Muhammad Amir 2023 SCMR 1032; Muhammad Haneef v. Abdul Samad PLD 2009 SC 751; Manzoor Hussain v. Muhammad Nawaz 2010 SCMR 1042 and Allah Bukhsh v. Bakhtawar 2018 CLC 1070 ref.

Qaiser Imam, Muhammad Daniyal Lali, Ali Raza Rao and Riaz Gondal for Appellant.

Nemo for Respondent No. 1.

Syed Mastan Ali Zaidi for Respondent No. 2(2-a to 2-e).

Shoeba Akhtar and Shaneela Razzaq for Respondent No. 3/ CDA.

Dates of hearing: 13th May and 21st May, 2024.

Judgment

Miangul Hassan Aurangzeb, J.---Through the instant regular first appeal the appellant, Amanat Ullah Khan, impugns the judgment and decree dated 14.03.2019 passed by the Court of the learned Civil Judge, Islamabad, whereby the suit for declaration, cancellation of transfer letter, etc. filed by him was dismissed.

1. Through the said suit filed on 11.09.2004, the appellant had sought a declaration to the effect that he is the owner of Plot No.1, Street No.47, Sector F-8/1, Islamabad ("the suit property"). Furthermore, the appellant sought the cancellation of (i) letter dated 18.06.1977 (Exh.P6), whereby the Capital Development Authority ("CDA") transferred half share in the suit property from his name to respondent No.1, Waseem Iqbal, and (ii) letter dated 07.05.1987 (Exh.D8), whereby the CDA transferred the suit property in favour of Javed Akhtar, who was the predecessor of respondents Nos.2-a to 2-e.

2. The record shows that on 16.12.1976 Afzal Hussain, who at that time was the owner of the suit property, submitted an application (Exh.P3) to the CDA for its transfer to the appellant and respondent No.1 in equal shares. The appellant was born on 21.10.1968 and therefore when the said application was submitted, he was eight years of age. The said application was also required to be signed by the transferees. It bears the signatures of respondent No.1. For the appellant, the said application was admittedly signed by his father, Ghulam Rasool. The said application makes mention of the fact that the appellant was a minor and that his name was written on the application by his father in his own hand. Vide letter dated 24.01.1977 (Exh.P4), the suit property was transferred in the names of the appellant and respondent No.1.

3. On 08.06.1977 (Exh.P5) the appellant, through this father, is said to have applied to the CDA for the transfer of half share in the suit property to respondent No.1. This application also makes mention of the fact that the appellant's name was written by his father in his own hand. Vide letter dated 18.06.1977, (Exh.P6), the half share in the suit property was also transferred to respondent No.1. In this way, respondent No.1 became the owner of the entire suit property. On 26.03.1987, respondent No.1 submitted an application (Exh.P7) to the CDA for the transfer of the suit property to Javed Akhtar and vide letter dated 07.05.1987 (Exh.P8), the suit property was transferred to the latter.

4. It was not until 26.02.2004 that the appellant addressed a letter (Exh.D9) to the Member (Administration), CDA stating that the suit property was jointly transferred to the appellant and respondent No.1; that being a minor at that time, the appellant's father, Ghulam Rasool, got the whole case processed; that respondent No.1, being a family friend, was allowed to use / look after the appellant's portion of the suit property; that the appellant had come to know that respondent No.1, on the basis of fake signatures, had got the appellant's share transferred in his own name and had further sold the suit property; and that the suit property could not be transferred without obtaining a guardianship certificate from the Court of competent jurisdiction. The appellant requested the Member (Administration), CDA to conduct an inquiry in the matter and restore the suit property in his name. Vide letter dated 17.07.2004 (Exh.D10), the CDA informed the appellant that the suit property had been transferred in 1977 to respondent No.1 and that the appellant had remained silent for a period of twenty- six years; that the suit property had been transferred further; and that the appellant's application did not merit consideration.

5. On 11.09.2004, the appellant filed the suit for inter alia the cancellation of the said transfer letters dated 24.01.1977 (Exh.P4) and 18.06.1977 (Exh.P6). The said suit was contested by Javed Akhtar by filing a written statement. The CDA had also filed a written statement whereas respondent No.1 was proceeded against ex-parte. From the divergent pleadings of the contesting parties, the learned Civil Court framed the following issues:-

"1. Whether the defendant No.1 in connivance with defendant No.3 through fraud got transferred the share of the plaintiff from the suit property when he was a minor, therefore, plaintiff is entitled to the decree for declaration, cancellation of transfer letters, recovery of possession, partition of suit property and permanent injunction, as prayed for? OPP

2. Whether the plaintiff has no cause of action or locus standi to file the instant suit? OPD

3. Whether the defendant No.2 is a bonafide purchaser of suit property, hence his right and interest are protected under the law? OPD2

4. Whether the instant suit is hopelessly time barred? OPD

5. Whether the present suit has been filed just to blackmail the defendant No.2? OPD

6. Whether this Court lacks jurisdiction to adjudicate upon the matter? OPD2

7. Relief."

1. Testimony on the appellant's behalf was recorded by his special attorney, Riaz Khan (PW-1). The Record Keeper from the CDA appeared as CW-1 and produced documents from the official record of the CDA. These documents are Exh.P3 to Exh.P9. Javed Akhtar gave evidence as DW-1 and produced inter alia a copy of the transfer letter dated 07.05.1987 as Exh.D8. He also produced the revised completion certificate dated 09.02.2009 as Exh.D2 with respect to the building constructed on the suit property. The Administration Officer from the Estate Management Directorate of the CDA appeared as DW-3 and submitted documents listed in paragraph 5 of the impugned judgment.

2. The trial culminated in the judgment and decree dated 14.03.2019, whereby the appellant's suit was dismissed. The said judgment and decree has been assailed by the appellant in the instant appeal.

3. Learned counsel for the appellant, after narrating the facts leading to the filing of the instant appeal, submitted that on 24.01.1977 the suit property was "purchased jointly and equally" by his father and respondent No.1; that on 18.06.1977 respondent No.1 maneuvered the transfer of the appellant's share in the suit property in his own name; that the said transfer was the result of collusion between respondent No.1 and the employees of the CDA; that the appellant was a minor at that time and no guardianship certificate had been obtained from the Court of competent jurisdiction; that again due to the "evil designs" of respondent No.1 and the employees of the CDA, the suit property was alienated in favour of Javed Akhtar on 07.05.1987; that the transfer of half share in the suit property in favour of respondent No.1 on 18.06.1977 and the transfer of the entire suit property in favour of Javed Akhtar on 07.05.1987 are based on fraud; that it was not until 26.02.2004 that the appellant came to know that the suit property had been fraudulently transferred; that in the instant case, the limitation period for filing the suit would start from the date of the appellant's knowledge as to the fraud and not the date when he gained majority; that the application dated 08.06.1977 is stated to have been signed and filed by the appellant and not his father in the capacity of a guardian; that since the appellant was only eight years of age at that time, he had no legal capacity to enter into a sale transaction; that the appellant, being a minor at that time, could not be burdened with liability under a void transaction; that by virtue of Section 11 of the Contract Act, 1972 a minor is not competent to enter into a contract; and that the learned Civil Court erred by dismissing the appellant's suit. Learned counsel for the appellant prayed for the appeal to be allowed and for the impugned judgment and decree 14.03.2019 to be set-aside. Learned counsel for the appellant submitted a well-prepared brief of case-law, reference to which shall be made at a subsequent stage in the judgment.

4. On the other hand, learned counsel for respondents No.2-a to 2-e submitted that the manner in which the transfer of the suit property from Afzal Hussain to the appellant and respondent No.1 took place is admitted; that the application dated 16.12.1976 for the transfer of the suit property in the names of the appellant and respondent No.1 bears three signatures of the appellant and respondent No.1 each; that it is obvious that the appellant, being a minor at that time, did not have the means to purchase half share in the suit property but it was his father who did so; that application dated 08.06.1977 for the transfer of half share in the suit property in the name of respondent No.1 bears the appellant's name in exactly the same form as in the application dated 16.12.1976; that the appellant is taking a contradictory position by asserting that the purchase of half share in the suit property in January, 1977 is valid but the transfer of the said share in June, 1977 is invalid on the ground that he was a minor; that respondent No.1 had constructed a house on the plot after it was entirely transferred to him through transfer letter dated 18.06.1977; that respondent No.1 sold the suit property to Javed Akhtar and in this regard, a transfer letter was issued in favour of Javed Akhtar on 07.05.1987; that for the appellant's silence from 1987 (when Javed Akhtar purchased the suit property) to 2004 (when the appellant filed the suit), there is no plausible explanation; that the appellant's father was neither made a party in the suit nor produced as a witness by the appellant; that the appellant's father died on 12.07.2010, i.e. more than six years after the institution of the suit; that it was essential for the appellant to have produced his father since it was his stance in the suit that half share in the suit property had been purchased by his father from Afzal Hussain; that even the appellant did not appear himself as a witness but produced his special attorney, Riaz Khan; that the transfer letter dated 18.06.1977 is a thirty year old document to which a presumption of correctness is attached; and that Javed Akhtar and his successors had been subjected to the acrimony of litigation since the past twenty years and therefore the instant appeal merits dismissal with costs.

5. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in sufficient detail in paragraphs 3 to 8 above and need not be recapitulated.

6. The appellant's birth certificate (Exh.P2) shows that he was born on 21.10.1968. In the suit, the appellant pleads that the suit property was "purchased jointly and equally" by his father, Ghulam Rasool, and respondent No.1. Prior to this, the suit property was owned by Afzal Hussain. He had submitted application dated 16.12.1976 (Exh.P3) to the CDA for the transfer of the suit property to the appellant and respondent No.1. The said application also contains a declaration of the transferees. The signatures of respondent No.1 on the said declaration are not disputed. Interestingly, the fact that the appellant's father had signed the said declaration on behalf of his son is also not disputed. It is on the basis of the said application dated 16.12.1976 (Exh.P3) that the suit property was transferred vide the CDA's letter dated 24.01.1977 (Exh.P4) to the appellant and respondent No.1.

7. What is disputed by the appellant is the entry of his name as an applicant in the application dated 08.06.1977 (Exh.P5) submitted to the CDA for the transfer of half share in the suit property to respondent No.1. This application bears the appellant's handwritten name in Urdu stated to have been written by his father, Ghulam Rasool. For the purposes of clarity, the writing of the appellant's name as the applicant on the said application is as follows:-

This translates into: Amanat Ullah son of Ghulam Rasool (in my own hand)

1. This is exactly the manner in which the appellant's name as a declarant / transferee is written in the application dated 16.12.1976 (Exh.P3) submitted to the CDA for the transfer of the suit property from Afzal Hussain to the appellant and respondent No.1. As mentioned above, the appellant does not dispute the writing of his name as a declarant / transferee in the application dated 16.12.1976 (Exh.P3) and explains this in paragraph 1 of the suit by pleading that his father and respondent No.1 had jointly purchased the suit property. This obviously implies that the writing of his name in the said application was by his father.

2. Now, the appellant takes the position that the writing of his name in the application dated 08.06.1977 (Exh.P5) is not by him or his father. In his suit, the appellant has made allegations of fraud, connivance and evil designs, etc. The CDA, in its written statement, has pleaded inter alia that "Ghulam Rasool being the father and natural guardian of the plaintiff has sold the said ½ share vide transfer application form No.9271 dated 08.06.1977." This written statement was filed on 13.11.2004. At that time, the appellant's father was alive and did not pass away until 12.07.2010. After the said position was taken by the CDA in its written statement, it was most essential for the appellant to have produced his father as a witness to contradict what was pleaded by the CDA in its written statement. For this omission, no explanation has been presented by the appellant. It would be natural to assume that Ghulam Rasool was a truthful person and would have not contradicted the said pleading in the CDA's written statement. Additionally, it was for Ghulam Rasool to have stated that he had not signed the application dated 08.06.1977 (Exh.P5) for the transfer of half share in the suit property to respondent No.1 or that the said application was a fabricated document. The appellant's father's testimony would have also thrown light on the controversy as to whether he was in actual or constructive possession of any portion of the suit property or derived any benefit therefrom for a period of twenty-six years between the date when the suit property stood transferred to respondent No.1 and the date of the institution of the suit.

3. Article 129 of the Qanun-e-Shahadat Order, 1984 provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard had to the common course of natural events, human conduct and public and private business, in their relation to the facts of a particular case. Illustration (g) to the said Article provides that the Court may presume that evidence which could be and is not produced would, if produced be favourable to the person who withholds it. This rule of presumption is based on the principle that no one shall be allowed to take advantage of his own wrong. The rule contains a well known Latin maxim "omnia praesumuntur contra spoliatorem" (all things are presumed against the wrongdoer). Where a person withholds evidence, every presumption to his disadvantage, consistent with the facts admitted or proved, has to be adopted.

4. The appellant's conduct of not producing his father as a witness is to be attributed to consciousness that his father's evidence, if produced, would operate against him. It does not appeal to reason that Ghulam Rasool, who purchased half share in the suit property in his son's name, did not take any issue for a period of twenty-six years with respondent No.1 who is alleged not just to have had the appellant's share in the suit property transferred to himself but ten years after doing so transferred it to a third party. An explanation in this regard could have been given by Ghulam Rasool but for the appellant's decision not to produce him as a witness. Where a party fails to call as his witness the principal person involved in the transaction who is in a position to give a first-hand account of the matters in controversy and throw light on them and who can rebut all allegations of the other side, it is legitimate to draw adverse inference against the party who did not produce such principal witness.

5. The appellant has tried to project the impression that the transaction which resulted in the transfer of half share in the suit property to respondent No.1 through transfer letter dated 18.06.1977 (Exh.P6) could not have been executed by him as at that time he was just eight years old and permission from the Guardian Court had not been obtained for such transfer. Learned counsel for the appellant has relied on the law laid down in the judgments reported as Ghulam Nabi v. Faisal Naveed (2003 SCMR 1794), wherein it was held that a legal guardian was required to obtain permission of the Guardian Court under Section 29 of the Guardians and Wards Act, 1890 before alienating the minor's property, and that the transfer of a minor's property without the permission of the Guardian Court was voidable under Section 30 of the said Act; Abdul Ghani v. Yasmeen Khan (2011 SCMR 837), wherein it was held that no rights and liabilities could be attached to or arise out of a void contract, and that a minor could not be burdened with liability of a void contract; Sultan v. Muhammad Hussain (2006 MLD 659), wherein it was held that a transaction for the sale of an immovable property on behalf of minors was void even if it was made by a legal and natural guardian except where the dispossession of such property was for the need of the minors; Muhammad Umar Khan v. Aziz Begum (2001 MLD 448), wherein it was held that parents of a minor who had not gotten themselves appointed as a guardian of the minor by the Guardian Court could not sell the minor's land especially when the alienation had not been made out of necessity or for the exclusive benefit of the minor; Aamir Masood v. Khurshid Begum (2001 MLD 159), wherein it was held that the mere fact that the vendor was a minor at the time of the sale would render the sale document void and no plea of estoppel or bona fide purchase or even rectification upon attaining majority by the minor would be available to the vendee to defend the document; Muhammad Adil v. Muhammad Amir (2023 SCMR 1032), wherein it was held that in the absence of any evidence to indicate that the adult co-sharer was ever made the guardian of the minor co-sharer, the minor's share could not be sold by a de-facto guardian; Muhammad Haneef v. Abdul Samad (PLD 2009 SC 751), wherein it was held that a person who had purchased the suit land from a lady, who had exchanged the same with her minor daughter, could not be given protection of Section 41 of the Transfer of Property Act, 1882 as he cannot be said to have taken reasonable care or acted in good faith by failing to find out whether or not the mother had the power to transfer the suit land on the strength of an exchange mutation; Manzoor Hussain v. Muhammad Nawaz (2010 SCMR 1042), wherein it was held that where a sale agreement was executed by a minor during his minority, then such transaction being void ab-initio could be challenged within a reasonable period when the minor on becoming a major acquires knowledge of such transaction; and Allah Bukhsh v. Bakhtawar (2018 CLC 1070), wherein it was held that a plaintiff, being a minor at the time of the relinquishment of her right of inheritance, could not enter into such transaction and since such a transaction was void against which limitation does not run, it could be challenged at any time.

6. The appellant's stance in impeaching the transfer of half share in the suit property through transfer letter dated 18.06.1977 has been oscillating like a pendulum. In his suit, the appellant pleads that the transfer of half share in the suit property in favour of respondent No.1 through transfer letter dated 18.06.1977 was due to fraud, collusion and evil designs. In total contrast to this, the appellant asserts that when the transfer of half share in the suit property in favour of respondent No.1 took place, permission from the Guardian Court under Section 29 of the Guardians and Wards Act, 1890 had not been obtained. It would obviously his father who would have had to obtain such permission. The appellant's failure to implead his father as a defendant in the suit is fatal to his stance that his father could not have sold the appellant's half share in the suit property without obtaining permission from the Guardian Court. Even otherwise, the argument of the learned counsel for the appellant that the appellant's father ought to have obtained permission from the Guardian Court for selling / transferring his minor son's share in the suit property has no foundation in the form of pleadings in the suit. In fact the appellant's case in his suit is that the fraud had been perpetrated in the transfer of the said share from his name on 18.06.1977.

7. PW-1, in his cross-examination, admitted that Mark-A (which is the application dated 16.12.1976 submitted to the CDA by Afzal Hussian for the transfer of the suit property in favour of the appellant and respondent No.1) bears the correct signatures of the appellant's father, Ghulam Rasool. PW-1, however, deposed that Ghulam Rasool's signatures on Mark-B (which is application dated 08.06.1977 submitted by the appellant's father on his behalf for the transfer of the appellant's half share in the suit property in favour of respondent No.1) are forged. This testimony is not worth the paper it is written on. I say this because PW-1 was not Ghulam Rasool's special attorney but that of the appellant. It was for Ghulam Rasool to have been brought as a witness to testify that his signatures on the application dated 08.06.1977 are forged and not for his son and / or his attorney.

8. The Record Keeper of the CDA (CW-1) was summoned by the learned Civil Court on the request of the appellant. CW-1 had deposed that as per the record maintained by the CDA, the suit property was transferred through letter dated 24.01.1977 (Exh.P4) in favour of the appellant and respondent No.1, and that since the appellant was a minor at that time his father had appeared before the CDA for the purposes of the transfer. Furthermore, CW-1 deposed that on 08.06.1977 (Exh.P5), the appellant's half share in the suit property was transferred in favour of respondent No.1 and that time as well the appellant's father had appeared before the CDA for the purposes of the transfer. Once this testimony came on record, it was for the appellant to have applied for the verification of the genuineness of his father's signatures on the application dated 08.06.1977 (Exh.P5) submitted to the CDA or to have come up with cogent evidence to establish that his father had never appeared before the CDA for the purpose of the transfer of the appellant's half share in the suit property. None of this was done by the appellant.

9. The learned Civil Court had held that the suit for declaration instituted by the appellant was hopelessly time barred as the appellant had gained majority on 20.10.1986 and it was held that it was from that date that the limitation would start to run. The appellant's stance is that limitation would not start to run from the date of majority but from the date when the appellant gained knowledge of the fraudulent transaction as to the transfer of his half share in the suit property to respondent No.1. In paragraph 5 of the suit, he pleads that regarding the said transfer dated 18.06.1977, he gained knowledge on 26.02.2004. He claims to be well aware of the half share in the suit property having been purchased by his father and transferred in his name on 24.01.1977 but pleads ignorance as to the transfer of the said share in favour of respondent No.1 on 18.06.1977 until 26.02.2004. The appellant cannot on the one hand claim lack of knowledge as to the said transaction and on the other keep his father well away from the proceedings in the suit. The learned Civil Court is correct in observing that the appellant did not produce any evidence to prove as to how he gained knowledge on 26.02.2004 as to the transfer of half share in the suit property in favour of respondent No.1.

2024 M L D 1501

[Islamabad]

Before Arbab Muhammad Tahir, J

Saad Muhammad Abbasi---Appellant

Versus

Syed Ejaz Ali---Respondent

R.F.A. No. 286 of 2022, decied on 5th July, 2024.

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

----Arts. 76 & 77---Civil Procedure Code (V of 1908), O. XXXVII, Rr.1 & 2---Suit for recovery on the basis of cheque---Secondary evidence, adducing of---Conditions---Trial Court decreed the suit against the defendant / appellant---Record revealed that the plaintiff / respondent, as documentary evidence, exhibited photocopies of the documents (the agreement, bank deposit slip, bank statements, the cheque and dishonor slip)---Documents must be proved by primary evidence---In certain cases, the documents can be proved through the secondary evidence in terms of Art. 76 of the Qanun-e-Shahadat, 1984 ('the Order 1984')---Secondary evidence is an exception to general rule and only meant for the purpose to cater to a genuine need and hardship---It is not to be allowed in routine or without complying with the requirements mentioned under Arst. 76 & 77 of the Order 1984---Contents of the documents can only be proved through secondary evidence if the conditions mentioned under Art. 76 of the Order 1984 are available which should be satisfied first---Said Article provides an alternate mode and method of proving the documents which for various reasons could not be produced---When primary evidence is not available or produced, law permits secondary evidence which remedy is designed for the protection of person, who despite best efforts is unable, from the circumstances beyond his control, to produce the primary evidence---Where a person is unable to bring the original documents despite reasonable efforts, the Court is competent to admit secondary evidence but at the same time, it should be kept in mind that the said benefit is not intended for a person who intentionally or with some ulterior motive or sinister objects, refuses to produce the documents in court which is in his possession, power or control--- Court is competent to determine whether sufficient ground has been made out or not for the admission of secondary evidence which discretion is to be exercised keeping in the parameters contained in Art. 76 of the Oreder 1984 and facts and circumstances of each case as secondary evidence is given to prove the contents of documents and nothing more---Impugned judgment on the face of it was short of pre-requisites on the subject---High Court set-aside the impugned ex-parte judgment and decree, and remanded the case to the Trial Court for decision on merits with the direction that the application for leave to appear and defend the suit filed by the appellant/defendant would be deemed to have been allowed on the basis of surety bond having been tendered before the High Court/Appellate Court---Appeal, filed by the defendant, was allowed accordingly.

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

----O. XXXVII, Rr. 1 & 2---Suit for recovery on the basis of cheque---Ex-parte proceedings---Judgment, passing of---Court, powers of---"Court having no option but to decree the suit"---Scope---Trial Court, after conducting ex-parte proceedings against the defendant / appellant, decreed the suit in favour of plaintiff /respondent---Validity---Trial Court while decreeing the suit, in concluding paragraph, observed that Court was left with no option but to decree the suit---Said observation, on the face of it, was contrary to law as not only in an ex-parte case/instance, but even in case of a conceding statement, it is obligatory for the court to appreciate the veracity of the claim of the respondent/ plaintiff---Court is under obligation to see the legality and genuineness of the issue brought before it---Observation that Court was left with no option reflected dealing with the cause in a mechanical manner without application of judicial mind---High Court set-aside the impugned ex-parte judgment and decree and remanded the case to the Trial Court for decision on merits and directed that the application for leave to appear and defend the suit filed by the appellant/defendant would be deemed to have been allowed on the basis of surety bond having been tendered before the High/Appellate Court---Appeal, filed by the defendant, was allowed accordingly.

Misbah Khanum v. Kamran Yaseen and another 2022 SCMR 1629 and Hamid Nasrullah Ranjha v. Civil Judge West Islamabad 2024 MLD 10 ref.

(c) Administration of justice---

----Act of Court shall prejudice no one---Scope---Where any Court did not comply with a mandatory provision of law or omitted to pass an order in the manner prescribed by law, the litigant could not be taxed much less penalized for the act or omission of the Court---Fault in such cases does lie with the court and not with the litigant and no litigant should suffer on such account---In such like situation, where injustice is caused due to an act or omission on the part of court, the courts are required to remedy the defect that occurred as a consequence thereof.

Muhammad Ijaz and another v. Muhammad Shafi through LRs 2016 SCMR 834; Shirin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 585 and Jai Berham v. Kedar Nath AIR 1922 PC 269 ref.

(d) Constitution of Pakistan---

----Art. 10-A---Civil Procedure Code (V of 1908), O. XXXVII, Rr. 1 & 2---Suit for recovery on the basis of cheque---Ex-parte judgment---Fair trial---Scope---After inability of the defendant to submit surety-bond, Trial Court passed ex-parte decree against the defendant / appellant---Validity---In the FIR registered by the respondent/plaintiff against the appellant/defendant on account of dishononing of the subject-cheque, the appellant/defendant was acquitted after a full length trial---There was nothing on record to show that the respondent/ plaintiff assailed the said judgment of acquittal---Such facts warranted due appreciation and judicial scrutiny for just decision of the case under the principle of fair trial envisaged in Art. 10-A of the Constitution---Said aspects had to be seen in conjunction with the mischief attributed to the appellant/defendant whereby he was held guilty of non-submission of surety bond and was permanently precluded to contest the suit---Appellant /defendant should be afforded an opportunity to contest the suit---High Court set-aside the impugned ex-parte judgment and decree and remanded the case to the Trial Court for decision on merits and directed that the application for leave to appear and defend the suit filed by the appellant/defendant would be deemed to have been allowed on the basis of surety bond tendered before the High/Appellate Court---Appeal, filed by the defendant, was allowed accordingly.

Muhammad Faisal Malik for Appellant.

Habib-ur-Rehman for Respondent.

Date of hearing: 31st May, 2024.

Order

Arbab Muhammad Tahir, J.---Through the listed appeal in terms of Section 96 C.P.C., appellant namely Saad Muhammad Abbasi (hereinafter to be referred as 'the defendant' in the suit) assails ex-parte judgment and decree dated 20.04.2022 passed by the learned Additional District Judge, Islamabad West, whereby suit under Order XXXVII C.P.C., filed by respondent namely Syed Ijaz Ali (hereinafter to be referred as 'the plaintiff' in the suit) on the basis of cheque No. 10398556, worth Rs.10-million dated 23.11.2016 was decreed by observing as under:-

"There is nothing on record to rebut the claim of plaintiff with respect of documentary evidence produced by him. Therefore, in absence of any evidence in rebuttal, the plaintiff's evidence stands against the defendant un-rebutted, un-denied and unchallenged regarding recovery of amount against the negotiable instrument. Therefore, this court has no other option but to decree the 1,00,00,000/- (ten million) and plaintiff is entitled for recovery of above said amount from the defendant. No order as to cost. Decree sheet be prepared." {Emphasis supplied}

1. Precisely, facts relevant and essential for adjudication of the listed appeal are to the effect that on 26.10.2017, the respondent/plaintiff filed the subject suit on the basis of cheque worth Rs. 10 million, pursuant to investment agreement dated 03.01.2016, ('the agreement') that stood terminated in the midst on account of stated mischief attributed to the appellant/ defendant due to non-payment of profits due. In response to notice, the appellant/defendant entered appearance and filed application for leave to appear and defend the suit. The Trial Court allowed the said application vide order dated 15.05.2018 subject to furnishing of bank guarantee to the tune of Rs.10-million. The appellant/defendant being dissatisfied with the condition, filed Civil Revision Petition No. 191 of 2018 before this Court which was disposed of vide order dated 04.11.2021,whereby order-in-original dated 15.05.2018 was modified in terms that the appellant/defendant was allowed to submit any security of the like amount to the satisfaction of Trial Court within two weeks.

2. During pendency of CR No. 191/2018, the learned Trial Court continued with the proceedings on directions of this Court, framed issues and recorded examination-inchief of respondent/plaintiff as PW-1, who on 14.12.2020 tendered copy of sale deed Exh-P1, agreement Exh-P2, deposit receipt Exh-P3, bank statements Exh-P4 to P7, termination notice Exh-P8, the cheque Exh-P9, dishonor slips Ex-P10 and P-11, copy of FIR No. 68/2017 under section 489-F, P.P.C. PS Ramna Islamabad as Exh-P12. After recording examine in-chief of the respondent/plaintiff, the case was adjourned for cross-examination. The suit remained pending for the purpose when it was dismissed for nonprosecution vide order dated 06.11.2021.

3. The suit was subsequently restored on the application of the respondent/plaintiff and the appellant/defendant was directed to furnish surety bond of Rs.10-million vide order dated 10.02.2022. For the purpose, case was adjourned to 03.03.2022, 18.03.2022 and lastly for 01.04.2022 when right of the appellant/defendant to appear and defend the suit was closed and the case was set for recording of ex-parte evidence of the respondent/plaintiff. On 15.04.2022 the respondent/ plaintiff got recorded statement wherein he relied upon his statement recorded on 14.12.2020. The learned Trial Court after hearing arguments decreed the suit ex-parte in terms noted in paragraph-1 above, hence instant appeal.

4. Learned counsel for the appellant/defendant argued that even in case where the appellant/defendant is proceeded ex-parte, it is mandatory for the Court to give due consideration to the claim on the touchstone of the principles on the subject. According to the learned counsel, claim of the respondent/plaintiff is, primarily, rested upon distorted facts, based upon inadmissible evidence and concealment of facts including former suits and that in terms of section 96, C.P.C., appellant/defendant retains statutory remedy of appeal to question ex-parte judgment and decree, which in the backdrop of the evidence deserves outright dismissal of suit. The learned counsel also highlighted the previous litigation between the parties on the subject.

5. On the other hand, learned counsel for the respondent/ plaintiff repelled the above submissions by contending that the mischief attributed to the respondent/plaintiff is floating on the record as he not only failed to furnish surety bond within two weeks as directed by this Court but also failed to avail ample opportunities afforded to him before closing his right to defend the suit. The learned counsel argued that there is no contest on the point that there was business relation between the parties, reduced into writing through an agreement, followed by issuance of cheque, not denied by the appellant/defendant therefore in such eventuality, the course adopted by the Trial Court is in accordance with evidence on record therefore, impugned judgment and decree do not call for any interference.

6. Heard, record perused.

7. Before dilating upon the mischief attributed to the appellant/defendant and its consequence, made basis to close his right to contest the suit, it is necessary to ascertain as to whether the course adopted by the trial court for decreeing the suit of the plaintiff had been in accordance with the law and principles on the subject and for the purpose, evidence on record has carefully been gone through in the light of submissions advanced by learned counsel for the parties.

8. It is significant to note that the agreement Ex-P2, bank deposit slip Ex-P3, Bank Statements, the cheque Ex-P9 and dishonor slip P10 are photocopies of the documents. It is well settled that the documents must be proved by primary evidence. In certain cases same can be proved through the secondary evidence in terms of Article 76 of the Qanun-e-Shahadat Order, 1984. The secondary evidence is an exception to general rule and only meant for the purpose to cater a genuine need and hardship. It is not to be allowed in routine or without complying with the requirements mentioned under Article 76 and 77 of the Order 1984. The contents of the documents can only be proved through secondary evidence if the conditions mentioned under Article 76 are available which should be satisfied first. This Article provides an alternate mode and method of proving the documents which for various reasons could not be produced. When primary evidence is not available or produced, law permits secondary evidence which remedy is designed for the protection of person who despite best efforts is unable, from the circumstances beyond his control, to produce the primary evidence. Where a person is unable to bring the original documents despite a reasonable efforts, the Court is competent to admit secondary evidence but at the same time, this should also to be kept in mind that this benefit is not intended for a person who intentionally or with some ulterior motives or sinister objects refused to produce the documents in court which is in his possession, power or control. The Court is competent to determine whether sufficient ground has been made out or not for the admission of secondary evidence which discretion is to be exercised keeping in view the parameter contained in Article 76 and facts and circumstances of each case as secondary evidence is given to prove the existence, condition or contents of documents and nothing more beyond that. The impugned judgment, on the face of it, is short of pre-requisites on the subject.

9. Bare perusal of crucial document i.e. the agreement Exh-P2 reveals that same is a photocopy of front page with blank reverse side. There is no explanation as to on what grounds, covenants contained therein were admitted as correct. It is for the respondent/plaintiff to establish his case by producing evidence of unimpeachable character as any defect in defense cannot be made basis to accept the claim of the respondent/ plaintiff. The impugned judgment is short of reasoning as to how photocopies were allowed to be exhibited and whether the claim set in plaint had been in accordance with the terms of the agreement Exh-P2 and that the same lend support to the claim of the respondent/plaintiff. It is mandatory for the Trial Court to decide the case strictly in accordance with parameters on the subject. The law, in no way, recognizes acceptance of claim in ex-parte case as it is, without subjecting the same to judicial scrutiny on the touchstone of the principles on the subject.

10. Furthermore, in concluding paragraph, Trial Court observed that "court had left no option but to decree the suit". This observation, on the face of it, is contrary to law as not only in an ex-parte case, but even in case of a conceding statement, it is obligatory for the court to appreciate the veracity of the claim of the respondent/ plaintiff. The court is under obligation to see the legality and genuineness of the issue brought before it. The observation "court left with no option" reflects dealing with a cause in a mechanical manner without application of judicial mind. Reliance is placed upon case of "Misbah Khanum v. Kamran Yaseen and another (2022 SCMR 1629)" and judgment of this Court in the case of "Hamid Nasrullah Ranjha v. Civil Judge West Islamabad" (2024 MLD 10)".

11. It is well settled that the act of Court shall prejudice no one and where any Court did not comply with a mandatory provision of law or omitted to pass an order in a manner prescribed by law, the litigant could not be taxed much less penalize for the act or omission of the Court. Fault in such cases did lie with the court and not with the litigant and no litigant should suffer on such account. Reliance is placed upon case of "Muhammad Ijaz and another v. Muhammad Shafi through LRs (2016 SCMR 834). In such like situation, where injustice caused due to act or omission on the part of court, the courts are required to remedy the defect that occurred as a consequence thereof. Reliance is placed upon Shirin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 585) and Jai Berham v. Kedar Nath (AIR 1922 PC 269).

2024 M L D 1527

[Islamabad]

Before Saman Rafat Imtiaz, J

Syed Zaheer Hussain Naqvi----Petitioner

Versus

Civil Judge, West Islamabad and others----Respondents

W.P. NO. 1302 of 2022 converted into Civil Revision No.l17 of 2024, decided on 29th March, 2024.

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

----O.VI, R. 17---Amendment of pleadings---Principle---No limitation period has been provided in law for filing of application under O.VI, R.17, C.P.C.---Court has been empowered under O.VI, R.17 C.P.C. to allow either party to alter or amend pleadings at any stage of proceedings in the manner provided, for the purpose of determining real questions in controversy between parties.

Mst. Ghulam Bibi and others v. Sarsa Khan and others, PLD 1985 SC 345; Ahmad Bakhsh v. Imam Bakhsh and others, 2023 MLD 1076; Muhammad Zaman v. Siraj-ul-Islam and 11 others, 2013 YLR 1548; Abaid Ullah Malik v. Additional District Judge Mianwali and others, PLD 2013 SC 239; Jamil-ur-Rehman v. Anisur Rehman, 2009 MLD 1082; Muhammad Mushtaq v. Abdul Rauf and 3 others, 2006 YLR 669 and Ayesha v. Additional Session Judge, Sialkot and others, 2002 CLC 327 rel.

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

----S. 12---Civil Procedure Code (V of 1908), O. II, Rr. 2, 3 & O.VI, R.17---Suit for specific performance of agreement to sell---Amendment of pleadings---Amplification of cause of action---Petitioner / plaintiff was aggrieved of order passed by Trial Court declining permission to amend plaint---Validity---Amendment to plaint by way of addition of details of sale agreements of petitioner / plaintiff made with and/or payments made to respondents / defendant and their alleged refusal of respondents to perform their obligations toward petitioner / plaintiff and relief arising therefrom did not change cause of action as alleged in the suit---Proposed amendments could at the best be described as an 'amplification' of cause of action which did not change main substance, nature, complexion or character of the suit---Alleged refusal of respondents to perform their respective obligations under the Compromise Deed as per Explanation to O.II, R.2, C.P.C. would be deemed to constitute same cause of action as the one alleged by way of the subject suit---At the very least such would constitute a cause of action which was part of same transaction or series of transactions as involved in the suit which could be joined under O.II, R.3, C.P.C.---Relief arising from such alleged cause of action could be sought in pending suit so as to afford ground for final decision upon all subjects in dispute and prevent further litigation as per the objective enshrined in O.II, R.1, C.P.C.---High Court in exercise of revisional jurisdiction set aside order passed by Trial Court and application of petitioner/plaintiff under O.VI, R.17, C.P.C. for proposed amendments was allowed---High Court directed petitioner / plaintiff to file amended memorandum of plaint as per proposed amendments whereafter Trial Court would allow respondents / defendants an opportunity to amend their written statements if they so requested---Revision was allowed accordingly.

C.A. Waheed v. Aftab Ahmad Mian and another, PLD 2006 Lahore 68; Abdul Rasheed through L.Rs and 7 others v. Muhammad Akhtar and another, 2018 YLR 2482; Federation of Pakistan through Secretary, Finance, Islamabad and another v. E-Movers (PVt.) Limited and another, 2002 PTD 920; Abdul Maroof Khan Afridi v. Karahi Development Authority through Director General, Civil Centre, Gulshan-e-Iqbal, Karachi, 1990 MLD 2252; Begum Shaheen Hassan v. Messrs Grinddlays Bank, P.I.C., 1992 MLD 1972; Karamat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191; Treasurer of Charitable Endowments for Pakistan v. Inamur Rehman Alvi, 1993 CLC 2033; Muhammad Saleem Naseem v. Additional District Judge, Dunyapur and 12 others, 2021 CLC 874; Alam Khan and 3 others v. Pir Ghulam Nabi Shah and Company, 1992 SCMR 2375; Muhammad Bashir Khan and 5 others v. Talay Muhammad Khan and 2 others, 1987 CLC 1332; Syed Nazir Hussain Rizvi v. Zahoor Ahmad and another, PLD 2005 SC 787; Kamila Aamir and another v. Additional District and Sessions Judge and others PLD 2023 Lahore 601; Promatha Narayan Bose v. Nowsher Ali Bepari PLD 1951 Dacca 33 and Syed Murshad Ali v. Syed Amjad Ali and 3 others 2014 YLR 1620 rel.

Barrister Afzal Hussain and Waheed-ur-Rehman for the Petitioner.

Ch. Abdul Rehman-ur-Bajwa and Afrasiab Ahmed Rana for the Respondent No.4.

Atif Shafiq for the Respondents Nos. 5 and 6.

Respondents Nos. 2, 3, 7, 8 and 9 proceeded ex-parte.

Date of hearing: 3rd January, 2024.

Judgment

Saman Rafat Imtiaz, J.---This Writ Petition has been filed by the Petitioner to assail the Order dated 08.03.2022 ("Impugned Order") passed by the learned Civil Judge, West-Islamabad whereby the Application filed by the Petitioner under Order VI, Rule 17, C.P.C. was dismissed. At the very outset it may be noted that the Impugned Order is revisable under Section 151, C.P.C. As such, the instant Writ Petition is converted into a Civil Revision by relying upon Ijaz Ahmad Chaudhry v. learned Civil Judge and others, 2020 CLC 291; Chaudhary Muhammad Khan and another v. Civil Judge 1st Class, East-Islamabad and another, 2018 CLC 1505. The office is directed to assign number to the Civil Revision accordingly.

1. The brief facts of the matter are that House No.23, Street No.88, Sector G-6/3, Islamabad ("Subject Property") belonged to the predecessors-in-interest of the Respondents No.2 to 8 (hereinafter also referred to as the legal heirs). A Civil Suit titled Wisha Asif v. Muhammad Shahid Yaqoob, etc. was filed inter se the legal heirs, which was decided vide Consent Decree dated 15.07.2013. The Consent Decree was based on a Compromise Deed dated 05.07.2013 ("Compromise Deed") entered into outside of Court, whereby the shares of the legal heirs were agreed upon according to which the Subject Property would be transferred in the names of such legal heirs. It was further agreed that the Subject Property would thereafter be sold to the Petitioner as it cannot be divided or partitioned under the terms and conditions of allotment and building zoning regulations of Capital Development Authority ("CDA"). It is noteworthy that the Petitioner was not a party to the said Suit and as such was not a party to the Consent Decree but he was a party to the Compromise Deed dated 05.07.2013.

2. Prior to the Consent Decree and on the same date as the Compromise Deed, the Petitioner entered into a Sale Agreement dated 05.07.2013 with the Respondents No. 2 [Ghazala Asif] and 3 [Saeeda Iftikhar], which records that full consideration was paid to the said Respondents and the Petitioner was given possession of two rooms in the Subject Property. It is noted that no time period was agreed upon for transfer of the Subject Property in the name of the Petitioner by way of the said Sale Agreement dated 05.07.2013.

3. On 03.04.2014 a Suit for Specific Performance of Agreement, Mandatory and Permanent Injunction ("Subject Suit") was filed by the Petitioner against the Respondents Nos.2, 3, and 9 [Office of the Registrar through Sub-Registrar, Islamabad] alleging that one week prior to the Subject Suit the Petitioner had asked the Respondents Nos.2 and 3 to perform their end of the bargain but they refused. It bears emphasis that the Subject Suit was filed for the enforcement of the Sale Agreement dated 05.07.2013 entered by the Petitioner with the Respondents No. 2 and 3 and not on the basis of the Compromise Deed dated 05.07.2013 wherein the Petitioner and all the Respondents Nos. 4 to 8 were party and as such none of the other legal heirs i.e., the Respondents Nos. 4 to 8 were impleaded as party in the Subject Suit. It is also relevant to note that no Suit has been filed to date seeking specific performance of the Compromise Deed dated 05.07.2013.

4. The Respondents Nos.2 and 3 recorded their conceding statements before the Trial Court on 07.04.2014 stating that they have received consideration and have handed over possession of two rooms in the Subject Property to the Petitioner and that they have no objection if the Subject Suit is decreed as prayed for.

5. Before the matter could be decided on the basis of such conceding statements, an Application was made by the Respondent No.4 [Muhammad Javed Janjua] under Order I, Rule 10, C.P.C. stating therein that as per the terms and conditions of the allotment letter and CDA bye-laws the shares are undividable and as such the only option is to put the Subject Property to auction and divide the sale proceeds amongst the legal heirs in view of which all legal heirs are necessary parties to the Subject Suit. The said application was allowed by the Trial Court vide Order dated 14.04.2015, whereby not only the Respondent No.4 was impleaded but also all other legal heirs i.e. the Respondents Nos.5, 6, 7, and 8 by finding that the said Respondents are necessary and proper parties in order to effectually and completely adjudicate upon all the questions involved in the controversy as they are also admittedly co-owners of the Subject Property. The matter was put off for submission of amended Plaint.

6. The Petitioner filed an amended Plaint whereby the title was amended to include the Respondents Nos. 4 to 8 in the array of Defendants and paragraph 1-A was added stating that the Suit had been filed against the Respondents Nos. 2 and 3 but the Respondents Nos. 4 to 8 were added as Defendants Nos. 2-A to 2-E pursuant to Order dated 14-04-2015. Neither the alleged cause of action nor the prayer was amended.

7. Nevertheless, a written statement was filed by the Respondents No.7 [Muhammad Ammar] and 8 [Wisha Asif] on 18.03.2019, wherein it was confirmed that they have received full consideration for their shares from the Petitioner and that the Suit may be decreed as prayed for. Similarly, the Respondent No.6 [Muhammad Zahid Ahmed Khan] filed his written statement on 18.05.2019, wherein receipt of part of the consideration was admitted. Thereafter statements of the Petitioner and the Respondent No. 6/Defendant No. 2-C was recorded on 11.11.2021, wherein the Petitioner stated that an Agreement dated 11.11.2021 has been entered into by and between him and the Respondent No. 6 and copy of Pay Order in the amount of Rs. 13,700,000/- is being tendered. The said Respondent No. 6/Defendant 2-C also accepted the contents of the said Agreement dated 11.11.2021 as correct and stated that he will hand over possession to the Petitioner to the extent of his share in the presence of a representative of the Court and will receive the original pay order of consideration and that he has no objection if the Subject Suit is decreed to his extent.

8. In the meantime, on 10.02.2020, an Application under Order VI, Rule 17, C.P.C. was made by the Petitioner claiming that all the legal heirs refused to act upon the Compromise Deed and as such permission was sought to make amendments in the Plaint as follows:

I. At Para No. 1 line No. 1 of the plaint after word "defendant" word "and" to be deleted and instead of word "and" word "to" be permitted to be added. Likewise in the same line after word "2" word "E" be permitted to be added. Now the same is to be read as defendants Nos. 1 to 2E.

II. At Para No. 3 line No. 6 of the plaint after 2013 word "is" to be deleted and following be permitted to be added; "along with Compromise Deed Ex-C1 are"

III. At Para No. 4 line No. 6 of the plaint after word "plaintiff" following be permitted to be added; "Other defendants Nos. 2-A to 2-E also sold out their respective shares and received earnest money in the following manner;-

a. Defendant No. 2A sold out his 30/128 share in the suit house to the plaintiff for a total sale consideration of Rs. 1,64,06,250/- (One Crore Sixty Four Lac, Six thousand two hundred and Fifty, received Rs. 16,50,000/- as earnest money through Bank Cheque No. 27066059 dated 15 July, 2013 Standard Chartered Bank, Blue Area Islamabad Branch dully acknowledged in the Sale Agreement dated: 07-07-2013.

b. Defendant No. 2B sold out his 30/128 share in the suit house to the plaintiff for a total sale consideration of Rs. 1,64,06,250/- (One Crore Sixty Four Lac, Six thousand two hundred and Fifty, received Rs. 26,40,000/- (Twenty six Lac Forty Thousand) as earnest money through different Cheques and cash as detailed hereunder:-

a) Rs. 200,000/- on 21". June.2013 by cheque No. 27066051 Standard Chartered Bank.

b) Rs. 14,50,000/- vide cheque no 27066062 Standard Chartered Bank.

c) Rs. 2,00,000/- cash sum of on 11-10-2013.

d) Rs. 50,000 cash on 11-11-2013.

e) Rs. 1,20,000/- out of which Rs. 20,000/- given in cash and Rs. 1,00,000/- vide cheque No. 28437541 Standard Chartered Bank Dtd 11-12-2013.

f) Rs. 1,00,000/- vide cheque No. 28437549 Standard Chartered Bank dtd 22-12-2013.

g) Rs. 1,00,000/- vide cheque No 31392471 Standard Chartered Bank Ltd 06-01-2014.

h) Rs. 4,20,000/- vide Comprehensive Receipt dated 4th March 2014 acknowledging receipt of Rs.120,000.00 in CASH and two Cheques (a) Rs,100,000.00 Vide Cheque No. 28437570 drawn at Standard Chartered Bank and (b) Rs.200,000.00 Vide Ch No. 019511812 Askari Bank for Rs. 2,00,000/-.

a. Defendant No. 2C sold out his 30/128 share in the suit house to the plaintiff for a total sale consideration of Rs. 1,64,06,250/- (One Crore Sixty Four Lac, Six thousand two hundred and Fifty, ) receiving Rs. 2,706,250/-(Rupees Twenty Seven Lacs Six Thousand Two Hundred Fifty only) as earnest money (i) Rs.1,650,000.00 on July 1, 2013 Vide Ch. 27066057 Standard Chartered Bank and then on May 17, 2019 (ii) Rs.1,000,000.00 vide Ch. No.56872045 for Rs.1,000,000/- (One Million) and (iii) Rs.56,250.00 vide Ch. No. 56872051 for Rs.56,250/-, both of Standard Chartered Bank, Blue Area Islamabad Branch which is dully acknowledge by Defendant No 2C.

b. Defendant No. 2D and 2E sold out their 24.25/128 share in the suit house: to the plaintiff for a total sale consideration of Rs. 1,45,00,000/- (One Crore Forty Five Lac) and received whole sale consideration in deferent time. It is pertinent to mention over here that the defendant No. 2-D and 2-E acknowledged receipt of total sale consideration before this Honourable Court and recorded statement to this effect also and now • nothing is outstanding against the plaintiff. It is pertinent to mention over here that it was further agreed between the parties that where balance sale consideration is to be paid to all shareholders at the time of transfer of share of them in the name of the plaintiff/his nominee name.

IV. At Para No. 5 line No.1 of the plaint after word "defendant" word "S" to be added and words "no 1 and 2" be permitted to be deleted.

VI. At Para No. 6 line No. 1 of the plaint after word "defendant" word "s" to be added and words "no 1 and 2" be permitted to be deleted.

Thereafter following will be permitted to be added;

The plaintiff is ready to pay balance of sale consideration to the remaining defendant No. 2 -A to 2E and that Plaintiff at request of all Defendants also advanced the Property Tax (2013-2014) due of the CDA. Thus the defendants are duty bound to specifically perform their part of Agreements and to transfer ownership of their shares in the suit Plot in the name of plaintiff/his nominee name.

VII. At Para No. 7 line No. 3 after words "transaction with the plaintiff" following be permitted to be added;

"secondly on---when the defendant No. 2-A executed sale agreement with the plaintiff and received the earnest money, thirdly when the defendant No. 2-B executed sale with the plaintiff and received the earnest money, fourthly on when the defendant No. 2-C executed sale agreement with the plaintiff and received the earnest money, Fifthly when the defendants Nos. 2-D and 2-E executed sale agreement with the plaintiff and received the earnest money and thereafter received whole sale consideration."

VIII. At Paragraph No. 1 Line No. 3 of the prayer after word "defendant" word "s" be permitted to be added and words no 1 and 2" be permitted to be deleted. Thereafter after words "in the" word "in the suit House/" be permitted to be added.

IX. In same Paragraph and Line after word "described in" word "the plaint" be permitted to be deleted and following be permitted to be added; Ex-CI along with Judgment and Decree dated 15.07.2013 passed by Muhammad Shoaib Akhtar, learned Civil Judge Islamabad West

X. At the same Paragraph No. 1 Line No. 4 of the prayer after word "and the defendant" word "s" be permitted to be added and words no. 1 and 2" be permitted to be deleted.

XI. After Paragraph No. 1, following Paragraph be permitted to be added; "If the defendants fail to transfer ownership of their respective shares in the name of the plaintiff/his nominee name, the plaintiff be permitted to deposit the remaining sale consideration of remaining defendants Nos. 2-A to 2-E in the Court and their shares be transferred at the office of defendant No. 3 in the name of the plaintiff/his nominee name through representative of the Court".

XII. At Paragraph No. 2 Line No. 3 of the prayer clause after word (description given in the word "plaint" be permitted to be deleted and word "Judgment and Decree read with Ex-C1" be permitted to added." [Emphasis added].

1. This application for amendments under Order VI, Rule 17, C.P.C. has been dismissed by the Trial Court, hence, the instant Writ Petition.

2. The learned counsel for the Petitioner submitted that there is no bar of limitation as far as seeking amendments is concerned under Order VI, Rule 17, C.P.C., which may be made at any stage and that the Respondents will not be prejudiced by the proposed amendments as evidence has not yet been recorded. The learned counsel for the Petitioner in support of his contentions relied upon C.A. Waheed v. Aftab Ahmad Mian and another, PLD 2006 Lahore 68 and Mst. Ghulam Bibi and others v. Sarsa Khan and others, PLD 1985 SC 345.

3. The learned counsel for the Respondent No. 4 pointed out that the Respondents Nos. 4 to 8 were impleaded as additional Defendants by way of Order dated 14.04.2015 whereby the Petitioner was not restrained from making necessary amendments to the Plaint. Despite the forgoing, the Petitioner simply filed an Amended Title of the Plaint on 28.07.2015 without making any amendments to the contents of the Plaint. He argued that therefore the Petitioner is restrained from making any further amendments under Order II, Rule 2, C.P.C., whereby any claim left out intentionally or unintentionally is deemed to have been relinquished. He also highlighted that all the amendments sought to be made pertain to the year 2013 prior to the filing of the Suit and as such there is no reason why the Petitioner/plaintiff could not have made such amendments at the time when he filed the Amended Title of the Plaint. The learned counsel for the Respondent No. 4 argued that the amendments sought to be made by the Petitioner will change the entire complexion of the Suit and as such are not permissible. The learned counsel for the Respondent No. 4 further submits that the amendments sought to be made by the Petitioner are even otherwise not required as the same issues are the subject matter of another Suit titled Javed Janjua v. Syed Zaheer Hussain Naqvi, etc. The learned counsel for the Respondent No. 4 has relied upon the judgment dated 16.08.2023 passed by the Supreme Court of Pakistan in Civil Appeal No. 1121/2018, re: Ijaz ul Haq v. Mrs. Maroof Begum Ahmed and others.

4. The learned counsel for the Respondents No. 5 and 6 adopted the arguments made by the learned counsel for the Respondent No. 4. No one entered appearance on behalf of the Respondents Nos. 2,3,7,8, and 9 therefore the said Respondents were proceeded against ex parte.

5. In exercise of his right of rebuttal the learned counsel for the Petitioner highlighted that not all of the proposed amendments pertain to years prior to the filing of the suit and some also pertain to events that took place in the year 2019. He also denied the allegation that the proposed amendments are the subject matter of another Suit and submitted that the nature of the referred suit is entirely different. He argued that Order II, Rule 2, C.P.C. only applies to the initial Plaint filed by a party and not to the Amended Title of Plaint filed by a plaintiff subsequently in response to the direction given by the Court to implead a party.

6. I have heard the learned counsel for the parties and have also perused the record.

7. At the risk of repetition, it is noted that the chronology of events shows that the Subject Property devolved upon the Respondents Nos. 2 to 8, as legal heirs, upon the death of their predecessors-in-interest. A suit was filed by and between the said legal heirs. During the pendency of such suit, a Compromise Deed dated 05.07.2013 was entered into by the Respondents Nos. 2 to 8 and the Petitioner whereby the shares of the said Respondents i.e. legal heirs were agreed upon and all the said Respondents agreed to sell their respective shares to the Petitioner against their mutually agreed sale consideration.

8. On the same date as the Compromise Deed, the Petitioner entered into a Sale Agreement with the Respondents Nos. 2 and 3 to the extent of their share in the Subject Property. It was, inter alia, agreed by way of the said Sale Agreement that the Respondents No. 2 and 3 are bound to physically appear before the Sub-Registrar to execute the sale deeds in favour of the Petitioner failing which the Petitioner would have the right to get the agreement enforced through Court. The Subject Suit was filed by the Petitioner for the Specific Performance of the said Sale Agreement alleging that the Respondents Nos. 2 and 3 have refused to perform their end of the bargain.

9. The Respondents Nos. 4 to 8 were neither party to the Sale Agreement dated 05-07-2013 nor did the Plaint filed in the Subject Suit contain any allegation against the said Respondents. Later, the Respondent Nos. 4, by way of application under Order I, Rule 10, C.P.C., claimed that the shares in the Subject Property are undividable due to which there is no option but to put the Subject Property to auction and to divide the sale proceeds amongst all the co-owners/legal heirs i.e., the Respondents Nos. 4 to 8 according to their respective shares and as such prayed that all other legal heirs may be impleaded as Defendants in the Subject Suit.

10. The Petitioner resisted such application by filing a reply praying for its dismissal but did not specifically deny that the shares of the legal heirs in the Subject Property are undividable. In fact, the Compromise Deed dated 05.07.2013 on which the Petitioner himself relies also records that the Subject Property cannot be divided/partitioned under the terms and conditions of allotment as well as under CDA regulations based on which the Consent Decree dated 15.07.2013 was passed. Thus it can safely be concluded that there is no dispute amongst the parties that the Subject Property cannot be partitioned or divided.

11. The Respondent No. 4's Application under Order 1, Rule 10, C.P.C. was allowed by the Trial Court vide the Order dated 14.04.2015 and the Respondents Nos. 4 to 8 were impleaded as Defendants Nos. 2-A to 2-E as parties necessary and proper for the complete and effectual adjudication of the controversy on the ground that they are admittedly co-owners of the Subject Property.

12. The matter was put off for submission of amended Plaint. But no substantive change was made by the Petitioner to the Plaint by way of the amended Plaint filed by the Petitioner on 28.07.2015 following the addition of the Respondents Nos. 4 to 8 to the array of Defendants by order of the learned Trial Court.

13. Long thereafter, on 10.02.2020 the Petitioner filed an application seeking amendments to the Plaint, which was dismissed vide the Impugned Order in view of the fact that the application was filed six years after filing of the Subject Suit and by finding that the proposed amendments would change the cause of action and the complexion of the suit and would also take away vested rights of the Respondents 2 to 8/Defendants.

Delay in filing of the application under Order VI, Rule 17, C.P.C.:

1. The learned counsel for the Petitioner is correct to the extent that no limitation period has been provided for in law for the filing of an application under Order VI, Rule 17, C.P.C. The said provision of law is reproduced herein below:

"Order VI, Rule 17: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." [Emphasis added].

Bare perusal of the provision of law under consideration shows that it empowers the Court to allow either party to alter or amend pleadings at any stage of the proceedings in the manner provided, for the purpose of determining the real questions in controversy between the parties. There is abundant case law whereby it has been held that a party may be allowed to alter or amend his pleadings even at the appellate or revisional stage.

1. The most comprehensive and instructive for the purposes of the instant case is Mst. Ghulam Bibi and others v. Sarsa Khan and others, PLD 1985 SC 345, wherein the appellant/plaintiff sought to amend the Plaint in the second appeal. The Lahore High Court rejected the application by specifically observing, inter alia, that it had been filed at a belated stage. The Supreme Court disagreed and observed that the words "at any stage of the proceedings" in Order VI, Rule 17, C.P.C is not without significance. It was held that the word "proceedings" has been interpreted by the apex Court in a liberal manner so as to give a proper scope to the rule in accord with its purpose, as including the appellate stage and that too up to the Supreme Court."

2. In the instant case, the application for amendment of Plaint was made to the Trial Court and that too when the evidence has not even been recorded. Given that the apex Court has already held that amendments can be made to pleadings even at the appellate or revisional stage provided other considerations are satisfied, the learned Trial Court erred by factoring in delay in the filing of the application under Order VI, Rule 17, C.P.C. for amendment in the Plaint as a ground for dismissal of such application.

Do the proposed amendments change cause of action and complexion/character of the Subject Suit?

1. The amendment of the Plaint is the right of a party when the same relates to the cause of action based on which the suit was filed and does not change the main substance, nature, complexion or the character of the suit nor causes prejudice to the other side. It is also settled law that the power to permit amendment is discretionary with the Court which discretion is to be exercised liberally to meet the ends of justice and to determine the real controversy between the parties by keeping in view, various judicial principles. The Lahore High Court in the case of Ayesha v. Additional Sessions Judge, Sialkot and others, 2022 CLC 327 cataloged where and when amendment ought to be allowed based on past precedent as follows:

"19. It may be added here that all rules of the Civil Procedure Code are geared towards securing proper administration of justice and should always be interpreted with this aim and purpose. Order VI, Rule 17 confers a discretionary power on a Court which a Court only exercises in consonance with and in the light of judicial principles contained in judicial precedents. If this Court were to try and emulate and follow former Chief Justice Asif Saeed Khosa ("Mst. Sughran Bibi v. The State" (PLD 2018 SC 595), "Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others" (PLD 2005 Lahore 470) among other cases, Lord Diplock (GCHQ case 1985 AC 374 House of Lords) or even Lord Greene Wednesbury Corporation 1948 (1) KB 223) and try and catalogue when and where an amendment ought to be allowed then, perhaps, the following position will emerge: An amendment in pleadings may be allowed where multiplicity of suits will be avoided, where the amendment does not alter the subject matter or the cause of action of the suit, where it does not take away any accrued right, where the plaintiff becomes entitled to further relief by reason of events subsequent to the filing of the suit, where the cause of action needs amplification, where the interests of safe and accurate administration of justice so require, where on account of a plaintiffs' evidence a new statutory line of defence gets triggered, where no injustice will be caused, where a relief has inadvertently been left out - the list is not exhaustive but just an attempt at cataloguing instances where it will be in line with trite and established law to allow amendment in pleadings under Order VI, Rule 17, C.P.C." [Emphasis added]

1. In the instant case, the original suit was filed against the Respondents No. 2 and 3 for the specific performance of the Sale Agreement dated 05-07-2013 pertaining to their respective shares in the Subject Property. The cause of action based on which the Subject Suit was filed was the alleged non-performance of the said Respondents of the said Sale Agreement.

2. In a nutshell, the proposed amendments (reproduced in paragraph 9 herein above) seek to introduce the Compromise Deed and the sale agreements allegedly made by the Petitioner with the Respondents Nos. 4 to 8 and/or payments made thereto in respect of their respective shares in the Subject Property and to allege the Respondents No. 4 to 8's refusal to perform while praying for relief arising from such alleged cause of action. Now let us see whether the proposed amendments change the cause of action and complexion/character of the Subject Suit.

Compromise Deed the Respondents Nos. 4 to 8's alleged refusal to perform their obligations toward the Petitioner; and the relief arising therefrom do not change the cause of action as alleged in the Subject Suit:

1. It may be recalled that the Compromise Deed was entered into to provide a roadmap to put to an end to the litigation ensuing between the legal heirs by agreeing upon each legal heir's share in the Subject Property. The Compromise Deed, of which the Petitioner was also a party, further envisaged the sale of the respective shares of each legal heir in the Subject Property to the Petitioner. For all practical purposes the Compromise Deed was the master agreement or a letter of intent between the parties and all the sale agreements between the Petitioner and the Respondents Nos. 2 to 8 and or payments made by the former to the latter including the Sale Agreement dated 05.07.2013 between the Petitioner and the Respondents Nos. 2 and 3 are rooted in the said Compromise Deed.

2. Therefore, the addition of the Compromise Deed in the factual matrix is not inconsistent with the case already set up by the Petitioner in the Subject Suit. The introduction of the Compromise Deed simply constitutes an additional fact or an additional element. Therefore, the addition of the Compromise Deed, the Respondents Nos. 4 to 8's alleged refusal to perform their obligations toward the Petitioner thereunder, and the relief arising therefrom as explained in C.A.Waheed v. Aftab Ahmad Mian and another, PLD 2006 Lahore 68 does not change the nature of the suit or the underlying basis thereof and as such cannot be treated as a change of cause of action that alters the nature of the suit.

Sale agreements allegedly executed by the Petitioner with the Respondents Nos. 4 to 8 and/or payments made thereto in respect of their respective share in the Subject Property; the Respondents Nos. 4 to 8's alleged refusal to perform their obligations toward the Petitioner; and the relief arising therefrom do not change the cause of action as alleged in the Subject Suit:

1. The reason given by the Respondent No. 4 in his application seeking to implead the Respondents Nos. 4 to 8 as Defendants in the Subject Suit was the indivisibility of the Subject Property. The said application made by the Respondents No. 4 for impleading all other co-owners/legal heirs was allowed by the learned Trial Court by Order dated 14-04-2015. In contradiction to the said Order dated 14-04-2015, the learned Trial Court concluded in the Impugned Order that the share of the Respondents Nos. 4 to 8 is independent. No explanation has been given as to how such conclusion was reached when none of the parties involved in the dispute have at any stage denied that the Subject Property cannot be divided/partitioned. Clearly, such finding by the learned Trial Court is erroneous and factually incorrect.

2. Given that the Subject Property cannot be divided/partitioned, the controversy regarding the enforceability of the Sale Agreement dated 05.07.2013 executed between the Petitioner and the Respondents Nos. 2 and 3 cannot be decided without also determining the enforceability of the Compromise Deed and the alleged sale agreements (whether oral or written) between the Petitioner and the other co-owners of the Subject Property i.e. the Respondents 4 to 8 and vice versa.

3. Therefore, the amendment to the Plaint by way of the addition of the details of the Petitioner's sale agreements made with and/or payments made to the Respondents 4 to 8; their alleged refusal to perform their obligations toward the Petitioner; and the relief arising therefrom do not change the cause of action as alleged in the Subject Suit. In my opinion, the proposed amendments can best be described as an 'amplification' of the cause of action which does not change the main substance, nature, complexion or the character of the Subject Suit.

Successive Claim:

1. Alternatively, the proposed amendments would constitute a successive claim which in light of the Explanation given in Order II, Rule 2(3), C.P.C. shall be deemed to constitute one cause of action.

2. The Sindh High Court at Karachi in Abdul Maroof Khan Afridi v. Karahi Development Authority through Director General, Civil Centre, Gulshan-e-Iqbal, Karachi, 1990 MLD 2252 observed that one of the salutary provisions enshrined in Order II, Rule 1, C.P.C. is that a suit shall be framed so as to afford ground for final decision upon all the subjects in dispute and prevent further litigation concerning them and that Rule 2 of the same Order explains that successive claims arising under the same obligation shall be deemed to constitute but one cause of action. It was further observed that the plaintiff, with a view to curtail the controversies, may, in the same suit, unite several causes of action against the same defendant or defendants under Order II, Rule 3, C.P.C. as the law does not countenance any unnecessary duplication of proceedings. The Sindh High Court also held that even when a fresh cause of action accrues pendent lite, which could be part of the same transaction or series of transactions and relief may conveniently be sought in the pending litigation and parties can be confined to such proceedings without doing any violence to procedural requirements such due process ought to be followed.

3. It is reiterated that the Sale Agreement dated 05.07.2013 by and between the Petitioner and the Respondents Nos. 2 and 3 and the sale agreements and payments by the Petitioner to the Respondents Nos. 4 to 8 in respect of their share in the Subject Property are rooted in the Compromise Deed. Thus the Petitioner's claim against the Respondents Nos. 4 to 8's arises from the same obligation. Their alleged refusal to perform their respective obligations thereunder would be deemed to constitute the same cause of action as the one alleged by way of the Subject Suit as per the Explanation to Order II, Rule 2, C.P.C. At the very least it would constitute a cause of action which is part of the same transaction or series of transactions as involved in the Subject Suit which therefore can be joined under Order II, Rule 3, C.P.C. Hence the relief arising from such alleged cause of action can conveniently be sought in the pending Subject Suit so as to afford ground for final decision upon all the subjects in dispute and prevent further litigation as per the objective enshrined in Order II, Rule 1, C.P.C.

Real controversy:

1. In Mst. Ghulam Bibi (Supra) the Supreme Court divided Order VI, Rule 17, C.P.C. into two parts and held that while the first part was discretionary the second part is mandatory in the following words:

"The foregoing interpretation is also in accord with the mandatory language used in rule 17 to the effect that "all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy . . . . ." Therefore, once the Court decides that the amendment is necessary for the said purpose of determining the real question, the Court is required by law to not only to allow an application made by a party in that behalf but is also bound to direct the amendment for the said purpose. Thus, the rule can be divided into two parts. In the cases falling under the first part, the Court has the discretion to allow or not to allow the amendment, but under the second part once the Court comes to a finding that the amendment is necessary for the purpose of determining the real question, it becomes the duty of the Court to permit the amendment.

What has been stated above is, however, subject to a very important condition that the nature of the suit in so far as its cause of action is concerned is not changed by the amendment whether it falls under the first part of rule 17 or in the second part, because when the cause of action is changed the suit itself would become different from the one initially filed. Here this condition would not have been contravened if the amendment had been allowed by the High Court. The bundle of facts narrated in the plaint which constitute the cause of action, as the application for amendment shows, would not have suffered any material change if the request would have been allowed. Apart from the consequential technical changes mutatis mutandis in the context of the grounds stated in the application for amendment, only two major amendments were sought to be made in the plaint. They would have been firstly, the change in the heading signifying the suit being for -specific performance etc. instead of declaration etc. and secondly, there was to be a similar change in the prayer paragraph. These amendments would not have caused any embarrassment to the respondents defendants either in seeking and making similar amendments in their written statement. The inconvenience caused to the respondents as the provision itself visualises is not only natural but would ordinarily be occasioned in almost every case. That is why the law visualises the award of adequate compensation : in that, the amendment has to be allowed "in such manner and on such terms as may be just". [Emphasis added]

1. As observed herein above, given that the Subject Property cannot be divided/partitioned, the Petitioner's claim against the Respondents Nos. 2 to 8 in respect of their shares in the Subject Property cannot be decided independently of each other. Thus the real controversy cannot be determined without the proposed amendments. Therefore, in light of Mst. Ghulam Bibi (Supra) it is mandatory to allow the Petitioner's application for amendment to the Plaint under Order VI, Rule 17, C.P.C. to such extent.

Vested Rights:

1. The Trial Court also observed in the Impugned Order that allowing the Petitioner to make the proposed amendments would take away vested rights of the Respondents Nos. 2 to 8. Although the Impugned Order records that several rights have been created in favour of the Respondents Nos. 4 to 8 it only refers to limitation and no other rights. However, allowing the Petitioner to make the proposed amendments to the Plaint will not deprive any Respondent/Defendant to raise the objection of limitation if available at law by way of filing amended written statements.

2. Even otherwise, the Sindh High Court at Karachi in the case of Begum Shaheen Hassan v. Messrs Grindlays Bank, P.I.C., 1992 MLD 1972, observed that it was held in Mst Ghulam Bibi (Supra) that expiry of the period of limitation is no ground for refusing amendment in the plaint. The Court also quoted Karamat Ali and another v. Muhammad Yunus Haji and others, PLD 1963 SC 191 wherein the appellants sought to amend their Plaint to include a prayer for possession of properties, aiming to rectify an omission in their original Plaint. This amendment was contested by arguing that the claim for possession had become time barred. The Supreme Court acknowledged that it would be reluctant to allow an amendment which would have the effect of totally altering the nature of the suit or taking away a valuable right accrued by lapse of time but where in the circumstances of a particular case it would plainly be inequitable to refuse such relief the Supreme Court would not hesitate to allow the amendment even where a legal right had accrued due to lapse of time if the special circumstances outweighed such considerations. Similarly, the Sindh High Court at Karachi in the case of Treasurer of Charitable Endowments for Pakistan v. Inamur Rehman Alvi, 1993 CLC 2033 held that in special circumstances amendments would be justified notwithstanding that a fresh suit may be barred by limitation.

3. In the instant case, firstly it is yet to be seen whether the enforcement of the agreements between the Petitioner and the Respondents Nos. 4 to 8 is time barred or not. But even otherwise, I find that there are special circumstances in the instant case justifying the proposed amendment notwithstanding the question of limitation. The first is that the Subject Property cannot be divided or partitioned. Thus, if the proposed amendments are not allowed, the controversy between the parties will not be decided whereas there is complete consensus in past precedent that rules of procedure are meant to advance justice and to preserve the rights of litigants.

4. Secondly, the Respondents Nos. 4 to 8 have been impleaded as Defendants in the Subject Suit on application made by the Respondent No. 4. The Court cannot implead defendants to a suit as necessary and proper parties on one hand and on the other hand disallow the plaintiff to make changes to the Plaint that are necessary as a consequence of such addition of defendants. The plaintiff is entitled to amend the Plaint in the manner necessary under Order 1, Rule 10(4), C.P.C. on impleading of a new defendant. In fact the learned Trial Court did allow the Petitioner to make amendments to the Plaint vide its Order dated 14-04-2015 whereby the additional Defendants were impleaded to the Subject Suit. Therefore, the Trial Court's observations that the proposed amendments would change the cause of action and the complexion of the Subject Suit as share of the Respondents Nos. 4 to 8 in the Subject Suit is independent is a contradiction of its reasoning in the Order dated 14-04-2015.

5. Thirdly, the Respondents Nos. 2, 3, 6, 7, and 8 who are Defendants Nos. 1, 2, 2-C, 2-D and 2-E before the Trial Court have already filed their conceding statements acknowledging receipt of payment of consideration for their respective share in the Subject Property from the Petitioner. It would indeed be a travesty of justice if the Petitioner is non-suited despite acknowledgment of its claim by a substantial number of defendants.

6. As far as the Respondents Nos. 4, 5, and 6 are concerned, they failed to show any prejudice that would be caused to them in case the Petitioner's application for amendment to the Plaint is allowed. The application for amendment was filed by the Petitioner even before the Respondents Nos. 4 and 5 who are Defendants 2-A and 2-B filed their written statements. On inquiry, it was submitted that the Respondents No. 4's right to file written statement was closed on 11.06.2016. Under such circumstances no prejudice will be caused to any of the Respondents/Defendants if the Petitioner is allowed to make amendments to the Plaint as prayed for. Nor has any mala fide intent of the Petitioner been identified in seeking the proposed amendments. Even otherwise, as held by the Supreme Court in Mst. Ghulam Bibi (Supra) Order VI, Rule 17, C.P.C. gives the Court ample power to compensate the other side for any inconvenience caused as a result of allowing amendments to the pleadings of any side. Therefore, at the most the learned Trial Court could have allowed the Respondents compensation.

Multiplicity of proceedings:

1. Alternatively, the Petitioner could have instituted fresh suit against the Respondents Nos. 4 to 8 with regard to his alleged claim against them for their respective shares in the Subject Property. Such suit would inevitably have to be consolidated with the Subject Suit for the reasons discussed herein above and therefore would lead to unnecessary multiplicity of proceedings which Order VI, Rule 17, C.P.C. seeks to avoid.

2. The Honorable Supreme Court observed in Alam Khan and 3 others v. Pir Ghulam Nabi Shah and Company, 1992 SCMR 2375 that the plaintiffs had rightly joined two sale transactions in one single suit though on behalf of different persons and finalized through different mutations because even if the plaintiff had instituted separate suit they would have to be consolidated as common questions of law and facts arose.

3. In the instant case, too, the Petitioner can join the causes of action as the subject matter of all the sale agreements entered into by the Petitioner with each of the Respondents 2 to 8 pertain to the Subject Property which admittedly cannot be partitioned or divided. Thus the filing of separate suits would also lead to consolidation. As such, I see no fruitful result of not allowing the Petitioner to make the proposed amendments to the Plaint.

Order II, Rule 2, C.P.C.:

1. This brings me to the argument raised by the Respondent No. 4's legal counsel. He argued that the Petitioner could have made the proposed amendments at the time of filing the first amended Plaint pursuant to the Order dated 14.04.2015 whereby the Respondents Nos. 4 to 8 were impleaded as Defendants. Since the Petitioner did not(sic) he is now precluded from making such amendments in view of Order II, Rule 2, C.P.C. However, this argument is misconceived. Order II, Rule 2, C.P.C. refers to three distinct terms 'claim', 'relief', and 'cause of action'. The Lahore High Court in Kamila Aamir and another v. Additional District and Sessions Judge and others, PLD 2023 Lahore 601 has explained the three terms as follows:

"14. There are three specific terms used in Order II Rule 2 which are required to be interpreted as these shall have bearing on a just decision of this case. These terms are cause of action, claim and relief.

1. The expression cause of action has not been defined in the Code although several attempts have been made in the judgments to explain it. Various authorities have referred it to mean that every fact, which if traversed, it would be necessary for the plaintiff to prove to support his right to a judgment by of the court. This definition would generally suffice but it does not necessarily provide a satisfactory answer as to what is the cause of action. This Court shall not make an attempt to define the term cause of action in recognition of the fact that the scope thereof is vague and that it must be applied broadly to carry out the functions of the Code which are designed to achieve convenience and efficiency in trial of the suits. This policy of the Code is indubitably brought forth by Order II Rule 1 according to which all matters in dispute between the parties relating to the same transaction be disposed of in a single suit. Generally looking at the provisions of Orders I and II of the Code would make it evident that when the right recognized by law is violated constituting a legal wrong, a cause of action can be said to have arisen. A fortiori, it is the legally recognized wrong that creates the right to sue. It is axiomatic that facts which do not represent the existence of right in the plaintiff with a corresponding duty in defendant to observe that right and an infringement of that right or duty is no cause of action. In Stone v. Cass 34 Okla. 5, 124 P. 960, the Court stated that "There can be no cause of action, unless there is a wrong for which redress is afforded. Nor can there be a subject of action, unless there is a right and a wrong done to it. The right might exist for ages, but is not a subject of action until it is infringed upon. The wrong might be continuous, but is not a cause of action, unless relief is afforded." Cause of action thus comprises material facts (to borrow the term from the Code) constituting the right and its infringement which entitles a person to sue the wrongdoer or anyone liable for it. The logical progression of this rule dictates that a cause of action must include a set of primary or operative facts that represent a legally recognized wrong that creates the right to sue which gives rise to a claim enforceable in court. Each cause of action consists of points the plaintiff must prove, and all these elements must be satisfied before the court can take action. This broad categorization of the rule is in accord with the scheme of the Code.

2. The Indian Supreme Court in the case of Om Prakash Srivastava v. Union of India and another 2006 6 SCC 207 expressed the principle of cause of action on the following terms which are not very dissimilar to what has been stated above:

The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. (Emphasis Added)

17. Order II, Rule 2 requires that a plaintiff must join all claims arising from the same set of facts in a single proceeding instead of bringing successive actions. The bar contained in the rule is against splitting the claim in respect of the cause of action and not the cause of action itself. A cause of action is simply the technical, legal name representing the facts which give rise to a claim enforceable in court. Although the term claim is generally used interchangeably with cause of action, its use within the confines of the rule refers to a right which would be enforceable if decreed by the court. The cause of action signifies and provides the pivotal ingredients for establishing the basis for legal claim and is also relevant for other purposes such as computation of limitation period, determination of the proper forum for filing of claim (jurisdiction) and locus standi etc. In the case of breach of contract, for example, the injured party might sue for damages or specific performance both of which shall be the claims and facts supporting the breach of contract and losses sustained by the injured party shall constitute the cause of action. A cause of action broadly speaking is the factual matrix forming basis of the claim and it also identifies the legal nature of those claims, which is the technical meaning of a cause of action. This position is best illustrated by 1309489 Ontario Inc. (formerly known as Xincon Technology (Canada) Inc.) v. BMO Bank of Montreal et al. 2011 ONSC 5505 in which Justice Lauwers of the Ontario Superior Court of Justice noted as follow:

[18] As I observed in Ivany v. Financiere Telco Inc., [2011] O.J. No. 4162, 2011 ONSC 2785, the proper definition of the term "cause of action" is somewhat elusive even though lawyers and judges routinely use it. Halsbury's Laws of England, 5th ed., vol. 11 (London: LexisNexis, 2008), at para. 21, explains:

'Cause of action "has been defined as meaning simply the facts the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from the earliest time to include every fact which is necessary to be proved to entitle the claimant to succeed, and every fact which the defendant would have a right to dispute."

Cause of action "has also been taken to mean that particular act on the part of the defendant which gives the claimant his cause of complaint, or the subject matter or grievance founding the claim, not merely the technical cause of action.

The same facts or the same transaction or event may give rise to more than one effective cause of action." (Internal footnotes omitted)

[19] Note the two expressions used in this excerpt: "cause of action" and "technical cause of action". These identify the two senses in which lawyers and judges use the term "cause of action". Sometimes they are speaking of a factual matrix, that is, the factual cause of the plaintiff's complaint. At other times, however, lawyers and judges use the term "cause of action" to identify the legal nature of the claim; recognized causes of action in this legal sense include, for example, breach of contract, negligence, breach of fiduciary duty and so on, each of which has its own constituent elements. (Emphasis supplied)

The Court thus made the distinction between the claim on the one hand and cause of action on the other by holding cause of action as the factual matrix and claim being the legal basis upon which relief is based.

1. The claim must, however, be distinguished from relief which relates to the form of remedy a person seeks from the court. Relief or remedy is the means through which the cause of action is effectuated and the wrong is redressed (see Balbir Singh v. Atma Ram AIR 1977 Allahabad 211). Generally speaking, there are four types of reliefs available in a civil action i.e. declaratory remedy, equitable relief, restitution, recovery and financial damages. Relief, it may be stated, does not form part of the cause of action.

2. The rule prevents the plaintiff from splitting the claims and the reliefs which are based on the same cause of action with the aim that a single cause should not be segregated among several suits. The objective appears to safeguard against the defendant being vexed twice in respect of the same cause of action underpinning the claim. In case of omission to sue or intentional relinquishment of a claim, the rule places a bar on bringing a subsequent action in regard thereto. Similarly, the rule compels a plaintiff to sue for all reliefs arising from the same cause of action and in case of his omission to do so he shall be barred from that relief in a subsequent suit except where he took the leave from the court.

3. The principle underlying Order II, C.P.C. cannot be properly grasped without considering the principle of joinder of parties and joinder of causes of actions. The two suits filed by the petitioners involved joinder of plaintiffs and defendants. The provisions of Order I Rules 1 and 3 provide guidelines for who may be joined as plaintiffs and defendants. Rule 1 of Order I states that all persons may be joined as plaintiff in one suit in whom any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative. The provision also specifies the test for such joinder to the effect that if separate suits were brought by such persons, any common question of law or fact would arise. Rule 3 is a similar provision regarding the joinder of defendants. Order II Rule 3 permits for joinder of causes of actions by a plaintiff in the same suit against the same defendant or the same defendants jointly. Order II Rule 4 qualifies the scope of joinder of causes of actions concerning recovery of immovable property by making leave of court as a necessary pre-condition. There are, however, certain exceptions to the rule one of which is where claim in which the relief sought is based on the same cause of action. These provisions illustrate that two or more causes of action and remedies may now be secured in a single action and by extension making it permissible for joinder of parties. The rule of joinder of parties and causes of actions informs that any narrow interpretation limiting the scope of cause of action to a single legal claim may limit or even prevent the effective operation of these provisions.

2024 M L D 1603

[Islamabad]

Before Aamir Farooq C.J. and Tariq Mehmood Jahangiri, J

Irfan Nawaz Memon---Appellant

Versus

The State and 3 others---Respondents

Intra Court Appeal No. 61 of 2024, decided on 28th February, 2024.

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

----S. 2---Exit Control List---Intra Court appeal---Scope---Petitioner was aggrieved of placing his name on Exit Control List---During the contempt proceedings in a matter before a Single Judge of the High Court, the appellant filed an Intra Court Appeal against the interlocutory order, passed by the Single Judge, whereby the charge of contempt of Court was framed against him---Said Intra Court Appeal was dismissed by a Division Bench; said order was challenged by the appellant before the Supreme Court of Pakistan in a Criminal Petition, which was dismissed as not pressed---Appellant had neither disclosed the fact of dismissal of first Intra Court Appeal in the instant matter by a Division Bench of the High Court nor disclosed that an appeal against the order was dismissed as not pressed by the Supreme Court of Pakistan---Neither said facts were mentioned in the instant appeal nor copies of the orders passed by both the Courts were placed on record---Appellant had concealed material facts by not mentioning the orders passed by High Court and the Supreme Court of Pakistan in earlier round of litigation---Person who seeks equity must approach the Court with clean hands---Admittedly show-cause notice had been withdrawn, warrants of arrest had also been cancelled and only grievance of the appellant was that his name was placed on Exit Control List---When confronted about whether on application to get permission for travelling for Umrah was filed before the Single Judge, counsel for appellant had stated that no formal application was filed in office, rather the same was given Single Judge during the proceedings but no order was passed---Appellant was required to file a proper application in the office for grant of exemption/permission for travelling to perform Umrah but admittedly said procedure had not been adopted---As the contempt proceedings against the appellant were pending, formal show cause notice had been issued; he was bound to appear in the Court on each and every date of hearing under S.17(2) of Contempt of Court Ordinance, 2003, thus, placing his name on Exit Control List would not cause any prejudice to him---Intra Court Appeal being not maintainable was dismissed in limine.

West Pakistan Water and Power Development Authority through its Chairman v. Chairman, National Industrial Relations Commission PLD 1979 SC 912; M.H. Khondkar and another v. The State and another and M. Noman v. The Dacca Improvement Trust and 3 others 1971 SCMR 743; Midnapore Peoples Co-op. Bank Ltd. v. Chunilal Nanda AIR 2006 SC 2190; B.N.Taneja (IFS) v. Bhajan Lal 1988 (3) SCC 26; Union of India v. Mario Cabrale Sa AIR 1982 SC 691; State of Maharashtra v. Mahboob S. Allibhoy 1996 (4) SCC 411; J.S. Parihar v. Ganpat Duggar 1996 (6) SCC 291; Adeel Arshad v. Ahmad Chaudhary, D.C. Khanewal and others PLD 2021 Lah. 741; Muhammad Mohsin Rafiq and others v. Messrs Siddiqui and Co. 2021 CLC 1; Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others 2010 SCMR 1840; Shafqatullah and others v. District and Sessions Judge, Nowshera, N.W.F.P and 4 others 2001 SCMR 274; Mst. Naila Hameed v. Ejaz Mahmood and others 2022 MLD 920; Asim Irfan Ahmad v. Learned Additional District and Sessions Judge, Islamabad and others 2023 YLR 1123 and Khurram Imtiaz v. Learned Additional Sessions Judge, Islamabad and others 2023 PCr.LJ 640 rel.

Saad M. Hashmi and Yawar Mukhtar for the Appellant.

Order

Tariq Mehmood Jahangiri, J.---Through the instant Intra Court Appeal, the appellant has assailed order dated 20.02.2024, passed in Criminal Original No.197-W/2023, whereby learned Single Judge-in-Chambers issued non-bailable warrants of arrest against the appellant for his production before the Court on 21.02.2024, and directed the Ministry of Interior to place his name on Exit Control List (ECL).

1. Brief facts of the case are that the appellant is currently serving as Deputy Commissioner, Islamabad; on 08.08.2023, he issued an order under Section 3(1) of the West Maintenance of Public Order Ordinance, 1960 for detention of one, Shehryar Afridi. Said order was challenged in Writ Petition No.2491 of 2023, before this Hon'ble Court. On 15.08.2023, learned Single Judge passed an order and issued show-cause notices to the appellant, SHO Police Station Margalla, Islamabad, D.P.O, City Zone, Islamabad and S.S.P (Operations) for allegedly violating the order dated 02.06.2023, passed by this Hon'ble Court in Writ Petition No.1639 of 2023, for criminal contempt of Court for alleged abuse of authority to obstruct dispensation of justice and causing diversion to the course of justice. Appellant appeared before the Court on 16.08.2023. Contempt proceedings were initiated against him in Criminal Original No.197-W of 2023; learned Single Judge vide order dated 07.09.2023, framed charge against him and other contemnors under Sections 2, 3 and 6 of Contempt of Court Ordinance, 2003, read with Article 204 of the Constitution of Islamic Republic of Pakistan, 1973. On 14.02.2024, the appellant verbally informed the learned Single Judge that he along with 31 other family members had to travel to Saudi Arabia to perform Umrah on 22.02.2024. Thereafter, on 19.02.2024, the appellant filed an application for exemption from personal appearance from 20.02.2024 to 05.03.2024, which was dismissed vide impugned order dated 20.02.2024, hence the instant Intra Court Appeal.

2. Learned counsel for the appellant, inter alia contends that learned Single Judge-in-Chambers has passed the impugned order without taking into account the fact that the appellant is regularly appearing in person before the Court and did not seek exemption from appearance; the appellant verbally informed the learned Single Judge that he along with family members intends to travel to Saudi Arabia to perform Umrah on 22.02.2024, he also filed an application for exemption from personal appearance from 20.02.2024 to 05.03.2024 but no order was passed by learned Single Judge on the said application; exemption from appearance is liable to be granted to him during the said period; impugned order suffers from errors apparent and floating on the surface of the record; if the impugned order is not set aside, the appellant will suffer irreparable loss to his career and reputation, impugned order is erroneous and is not tenable under the law, hence the same is liable to be set aside.

3. Arguments heard, record perused.

4. Admittedly order passed by learned Single Judge-in-Chambers is an interlocutory order. Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 confers jurisdiction to the superior Courts to punish those persons who commit violation or deny compliance of said order of the Court. Article 204 of the Constitution is reproduced as under:-

"204. Contempt of Court.-(1) In this Article, "Court" means the Supreme Court or High Court.

(2) A Court shall have power to punish any person who:-

(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;

(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;

(c) does anything which tends to prejudice the determination of a matter pending before the Court; or

(d) does any other thing which, by law, constitutes contempt of the Court.

(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court."

In furtherance of the above provision of the Constitution, the Contempt of the Court Ordinance, 2003 was promulgated. Section 3 whereof describes the contempt of Court which provision is as under:-

"3. Contempt of Court.---Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a willful breach of a valid undertaking given to a Court; or does anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect or disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a Court or scandalize a Judge in relation to his office, or to disturb the order or decorum of a Court, is said to commit "contempt of Court". The contempt is of three types, namely, the "civil contempt", "criminal contempt" and "judicial contempt".

Every superior court has the jurisdiction under Section 5 of the said Ordinance to convict and punish the contemnor in contempt of court.

1. Section 19 of the Contempt of Court Ordinance, 2003 provides a remedy of appeal which provision of law reads as under:-

"19. Appeal.- (1) Notwithstanding anything contained in any other law or the rules for the time being in force, orders passed by a superior court in cases of contempt shall be appealable in the following manner:-

(i) in the case of an order passed by a single judge of a High Court an intra-court appeal shall lie to a bench of two or more judges;

(ii) in a case in which the original order has been passed by a division or larger bench of a High Court an appeal shall lie to the Supreme Court; and

(iii) in the case of an original order passed by a single judge or a bench of two judges of the Supreme Court an intra-court appeal shall lie to a bench of three judges and in case the original order was passed by a bench of three or more judges an intra-court appeal shall lie to a bench of five or more judges.

(2) The appellate court may suspend the impugned order pending disposal of the appeal.

(3) The limitation period for filing an appeal shall be thirty days."

1. The main controversy revolves around the word "orders passed in cases of contempt". As the plural word "orders" has been used in the above provision of Section 19 of the Ordinance ibid. It is appropriate to determine whether all kind of orders including interim, interlocutory or the final order passed in contempt proceedings are appealable. As the word orders has not been defined in the very Ordinance, it is appropriate to trace out its meaning from sister legislation as parimateria. In Section 2(14) of the Civil Procedure Code word order has been described as:-

"(14) "Order" means the formal expression of any decision of a Civil Court which is not a decree:

According to Order XLIII, C.P.C. only the effective, determinative orders are appealable. Normally an order has following characteristics:-

(i) Order which finally resolved the controversy.

(ii) Order which materially and directly affect the final decision.

(iii) The order which causes some inconvenience/prejudice the party without there being any final determination.

(iv) The routine order passed to facilitate the progress in reaching the final order or judgment.

The conjoint reading of definition of word "order" or "orders" provided in Section 2(14) of C.P.C. and in Order XLIII, C.P.C., it can be said that word "order" means "the formal expression of any final decision" and any order which is not founded on any decision is devoid of attaining the status of an order. The challenging of each and every interim procedural kind of order will over-flood the litigation and would make the very litigations as well as the proceedings whereunder as unending. This liberty would practically negate the spirit and intent behind the legislation of Article 204 of the Constitution and entire proceedings in original jurisdiction of the superior court (High Court) would become virtually inexecutable and worthless. Only such orders, decisions, judgments which finally terminate the contempt proceedings against the contemnor are appealable. The word "order passed in contempt" means the order only awarding punishment and it is the said order which can be assailed in Intra Court Appeal, whereas the interlocutory, interim or procedural orders do not fall within the ambit of the order passed in contempt of court.

1. In this regard, reliance is placed on a case titled as "West Pakistan Water and Power Development Authority through its Chairman v. Chairman, National Industrial Relations Commission" (PLD 1979 SC 912), wherein the Hon'ble Supreme Court (Five Members Bench) has held that:

"When therefore, section 10 talks of an "order under this Act" being appealable, in its very nature confining ourselves to the facts and circumstances of the present case, it means an order of conviction and not an order of the kind involved herein." (emphasis added)

In a case titled as M.H. Khondkar and another v. The State and another and M. Noman v. The Dacca Improvement Trust and 3 others (1971 SCMR 743), one M.Noman filed contempt petition against Dacca Improvement Trust and the said petition was dismissed and a show-cause notice was issued to said Noman as to why he should not be punished in contempt of the Court. He challenged the rejection of his contempt petition as well as issuance of show-cause notice to him, in the Special Leave to appeal and the Hon'ble Supreme Court of Pakistan dismissed the said petition as such it can safely be observed that matter of the initiation or exonerating the contemnor from contempt proceedings is exclusively between the court and the contemnor and any procedural, interlocutory, interim order passed in this regard do not fall within the domain of Section 19 of the Ordinance, 2003 ibid and no Intra Court Appeal is available against such orders.

1. As a parimeteria in the Indian Contempt of Court Act, 1971, a right of appeal is provided against any order or decision passed by the superior judiciary in its original jurisdiction which provision is as under:-

"19. Appeals:-(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt-

(a) where the order or decision is that of a single judge, to a Bench of not less than two Judges of the court;

(b) where the order or decision is that of a Bench, to the Supreme Court:

Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.

(2) Pending any appeal, the appellate court may order that-

(a) the execution of the punishment or order appealed against be suspended;

(b) if the appellant is in confinement, he be released on bail; and

(c) the appeal be heard notwithstanding that the appellant has not purged his contempt.

(3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by subsection (2).

(4) An appeal under subsection (1) shall be filed

(a) in the case of an appeal to a Bench of the High Court, within thirty days;

(b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against."

The question whether any order or decision passed in contempt proceedings would mean every procedural, interim, interlocutory order passed for reaching the main conclusion, is appealable as a matter of right. The issue of availability of remedy of appeal against interim, interlocutory, procedural order passed in contempt of court proceedings was resolved by the Supreme Court of India in following case laws:

i. Midnapore Peoples Co-op. Bank Ltd. v. Chunilal Nanda (AIR 2006 SC 2190) wherein it has been observed that:

"in the event of orders refusing to initiate contempt proceedings or initiating contempt proceedings or acquitting / exonerating the contemnor or dropping the proceedings for contempt, appeal would not be maintainable as the appeal under Contempt of Court laws is provided only in respect of orders punishing for contempt."

ii. B.N.Taneja (IFS) v. Bhajan Lal [1988 (3) SCC 26] it has been observed that:

"right of appeal in contempt proceedings is only against any decision or order of a High Court passed in the exercise of its jurisdiction to punish for contempt."

Similar view has been taken in other judgments of Indian Jurisdiction titled as Union of India v. Mario Cabrale Sa (AIR 1982 SC 691), State of Maharashtra v. Mahboob S. Allibhoy [1996 (4) SCC 411] and J.S. Parihar v. Ganpat Duggar [1996 (6) SCC 291].

1. It has also been held in following cases:

i. "Adeel Arshad v. Ishfaq Ahmad Chaudhary, D.C. Khanewal and others" (PLD 2021 Lah. 741)

ii. Muhammad Mohsin Rafiq and others v. Messrs Siddiqui and CO." (2021 CLC 1) [Lahore]. that:

"Intra Court Appeal against interlocutory order is not maintainable".

1. During the contempt proceedings in the instant matter before the learned single Judge, the appellant filed an Intra Court Appeal No.309 of 2023, titled as "Irfan Nawaz Memon v. The State", against interlocutory order dated 07.09.2023, passed by learned Single Judge in Chambers, whereby the charge of contempt of Court was framed against him. Said Intra Court Appeal was dismissed vide order dated 02.10.2023, by a Division Bench of This Court; order passed by this Court was challenged by the appellant before the Supreme Court of Pakistan in Criminal Petition No.1143 of 2023, which was dismissed as not pressed by Supreme Court of Pakistan on 12.01.2024.

2. It is observed with great concern that the appellant has neither disclosed the fact of dismissal of first Intra Court Appeal in the instant matter by a Division Bench of this Court nor disclosed that an appeal against order was dismissed as not pressed by Hon'ble Supreme Court of Pakistan vide order dated 12.01.2024.

3. Neither said facts were mentioned in the instant appeal nor copies of the orders passed by both the Courts were placed on record.

4. The Appellant has concealed the material facts by not mentioning the orders passed by this Court and the Supreme Court of Pakistan in earlier round of litigation. It is established law that a person who seeks equity must approach the Court with clean hands. Reference in this regard may be made to the following case laws:

i. "Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others" (2010 SCMR 1840)

ii. "Shafqatullah and others v. District and Sessions Judge, Nowshera, N.W.F.P and 4 others" (2001 SCMR 274)

iii. "Mst. Naila Hameed v. Ejaz Mahmood and others" (2022 MLD 920)

iv. "Asim Irfan Ahmad v. Learned Additional District and Sessions Judge, Islamabad and others" (2023 YLR 1123)

v. "Khurram Imtiaz v. Learned Additional Sessions Judge, Islamabad and others" (2023 PCr.LJ 640).

1. During the course of argument, learned counsel has informed that show-cause notice issued in the impugned order has been withdrawn; warrants of arrest have also been cancelled and only grievance of the appellant is that his name is placed on ECL vide impugned order.

2. When confronted about the application to get permission for travelling for umrah filed before the learned Single Judge, learned counsel for the appellant has stated that no formal application was filed in office, rather the same was given to learned single Judge during the proceedings but no order was passed.

2024 M L D 1815

[Islamabad]

Before Mohsin Akhtar Kayani, J

Sharjeel Javed and 2 others---Appellants

Versus

The State through Investigating Officer, Directorate of Intelligence and Investigation IR---Respondent

Criminal Appeal No. 21 of 2022, decided on 12th July, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 265-K---Anti-Money Laundering Act (VII of 2010), Ss. 9(1) & 21(2)---Income Tax Ordinance (XLIX of 2001), Ss. 192 & 192(a)---Notice issued by the Authority for investigation---Complaint---Scope---Application under S. 265-K, Cr.P.C ,filed by the accused was dismissed by the Trial Court---Validity---Record showed that the trial Court while entertaining the complaint made by the Investigation Officer did not consider the application of law, especially, the penal concept under the Anti-Money Laundering Act, 2010---Investigation Officer who issued notice under S.9 (1) of the Anti-Money Laundering Act, 2010, started investigation from date of order of attachment made under S.8(1) on the basis of report in his possession while seeking prior permission of the Court---provisional attachment of properties of the petitioners and the entire mechanism provided in special law i.e. the Anti-Money Laundering Act, 2010, required prospective operation of SRO No.425(I) /2016 dated 14.05.2016 which provided the powers to deal with the predicate offence referred in Schedule (I) of S.2 (xxvi) for the first time on that particular date i.e. 14.05.2016, therefore, entire proceedings initiated by the Investigation Officer as well as the cognizance taken by the Special Court were defective if seen in context of basic crime which was pointed out in the enquiry under Income Tax Ordinance, 2001, where reference of assessment years were given for the tax year 2012 to 2016 creating the tax demand and even the notice highlighted the tax details for those years of 2014, 2015 and 2016 which were not to be considered in terms of the Anti-Money Laundering Act,2010, within the scope of S.192/192-A of the Income Tax Ordinance, 2001---Hence, serious mistake had been committed by the Investigation Office as well as by the Court by treating the offence of Ss.192/192-A for the period when the same was not prescribed in the Schedule of the Anti-Money Laundering Act, 2010---Therefore, the act referred in the case and made basis of entire proceedings was not an offence prior to the cut-off date i.e. 14.05.2016 when Ss.192/192-A of the Income Tax Ordinance, 2001, was not mentioned in the Schedule of predicate offence---Similarly, the jurisdiction exercised by the Investigation Officer as well as by the Special Court was also to be treated outside the purview of law---However, powers of Trial Court under Ss.249-A & 265-K, Cr.P.C, were co-extensive with similar powers of the High Court under S.561-A, Cr.P.C, and proper course was to approach the Trial Court in the first stance, though there was no bar upon the High Court from entertaining any petition in such cases, therefore, at this stage the Court was of the view that the entire action of Investigation Officer as well as cognizance of the Court in terms of S.21 (2) of the Anti-Money Laundering Act, 2010, including the notice in terms or S.9(1) of the Anti-Money Laundering Act, 2010, were illegal and beyond the legal authority, hence, criminal appeal was allowed by setting aside the impugned orders---Accused/appellants were acquitted accordingly.

Muhammad Rafiq v. DG FIA, Islamabad 2023 PCr.LJ 38; Govind Ram v. The Federation of Pakistan 2022 PTD 634; Surajmani Stella Kujur V. Durga Charan Hansdah AIR 2001 SC 938; Iqbal Singh Marwah and another v. Meenakshi Marwah and another AIR 2005 SC 2119; Collector of Central Excise v. New Tobacco Co. AIR 1998 SC 668; Common Cause v. Union of India and others AIR 2003 SC 4493; Mirza Ali Khan v. Hidayat Ullah Khan 2014 PCr.LJ 78; District Bar Association Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; 1998 PCr.LJ 2376; SK Shukla and others v. State of UP and others AIR 2006 SC 413 and Munir Ahmed v. The State 1985 SCMR 257 rel.

Hafiz Munawar Iqbal for Appellants.

Barrister Atif Rahim Burki for FBR.

Muhammad Nauman, Ispector FBR.

Date of hearing: 14th May, 2024.

Judgment

Mohsin Akhtar Kayani, J.---Through this criminal appeal the appellants have assailed order dated 22.12.2021, passed by the court of learned Judge, Special Court (Customs, Taxation and Anti-Smuggling), Rawalpindi / ICT, in complaint case No.5 of 2020 dated 27.08.2020 under section 21 (2) of the Anti-Money Laundering Act, 2010, whereby, application under section 265-K Cr.P.C. has been dismissed.

1. Brief facts referred in this case are that the investigation officer directorate of intelligence and investigation IR, has initiated proceedings by issuing notice dated 03.09.2020 under section 9 (1) of the Anti-Money Laundering Act, 2010, against the petitioners to the fact that he had reasons to believe that petitioners are involved in proceeds of crime as envisaged in section 2 (q) of the Anti-Money Laundering Act, 2010, read with section 192/192-A of the Income Tax Ordinance, 2001, therefore, powers contained under section 8 of Anti-Money Laundering Act, 2010 have been invoked. The complaint was filed on the basis of allegations contained in notice dated 30.09.2020 which are as under:

".............

1. Enquiry under Income Tax Ordinance, 2001 was carried out in your (Sharjeel Javed) case and forwarded vide C.No. 728 dated 14-09-2017 to Regional Tax Office, Islamabad whereby numerous observations were pointed out. The Regional Tax Office, Islamabad, based on the foregoing enquiry, took the matter further and passed assessment orders for Tax Years 2012 to 2016 creating tax demand as under-

2012 Rs.20,464,156/-

2013 Rs.18,227,387/-

2014 Rs.186,502,941/-

2015 Rs.184,250,832/-

2016 Rs.169,201,471/-

1. You, Mr. Sharjeel Javed, preferred to file an appeals Nos. 530 to 534 dated 27-02-2018 against the assessment orders with Commissioner Inland Revenue, Appeals-II, Islamabad. The learned CIR (Appeals) disposed off the matter in favour of the Department on 16-05-2018 by upholding the assessment orders. Being aggrieved with the decision of the learned CIR(Appeals), you preferred to file appeal before a higher forum the Appellate Tribunal Inland Revenue, Special Division Bench, Islamabad vide ITA No.1090(IB)/2018 to 1094(IB)/2018. The learned ATIR, Islamabad passed order on 18-03-2019 whereby the learned ATIR, Islamabad noted the following points:

"The appellant/taxpayer has taken the stance that he was not confronted properly. It appears prima facie that no evidence of a money-trail could be established by the appellant as to the source of investments made in the purchase/sale of immovable property. Further the proof of foreign exchange remittances has not been adduced. The AR's plea of Qarz-e-Hasna is also not convincing on a wide scale unless corroborated by documentary evidence. The factual controversies have not been resolved at the assessment stage. In light of the aforesaid discussion we deem it to be in the interests of justice to vacate the orders of both the authorities below and the case is remanded to the assessing authority with the direction to re-examine the issues involved".

4. Being aggrieved with the order of the learned ATIR, Islamabad, you Mr. Sharjeel Javed filed Reference Application under section 133 of the Income Tax Ordinance, 2001 before the Honorable Islamabad High Court, Islamabad vide ITR Nos. 24/2019 to 28/2019. The Honorable Court after hearing the case held that; "the orders impugned are not maintainable as there are no findings on question of law as well as on foots" and therefore dismissed the aforesaid Income Tax References in limine.

1. Now, under the circumstances penned down above, orders passed under section 122 of the Income Tax Ordinance, 2001 by the respected assessing officer on 06-02-2018 has been vacated by the learned ATIR while the order of the learned ATIR has not been quashed by the Honorable Islamabad High Court. Thus, the issues pointed out in the investigation report dated 14-09-2017 are to be re-examined by the concerned RTO. The assessing Officer passed order vide DCR No.01/51 dated 30-06-2020 under sections 122/124 of the Income Tax Ordinance, 2001 creating a tax demand of Rs.158,948,288/- which comes under the purview of AML Act, 2010. However offence of Money Laundering arising from tax evasion being jurisdiction of this Office are taken up here in with prior permission of the Honorable Court of Special Judge (Customs, Taxation and Anti-Smuggling), Rawalpindi. Therefore, you are directed to furnish written reply along with documentary evidences with regard to the following observations."

2. In response to the said notice reply was filed with the contention that tax authorities have no jurisdiction to invoke sections 192/192-A of Income Tax Ordinance, 2001, read with provisions of Anti-Money Laundering Act, 2010, against the petitioners for tax evasion pertaining to tax year 2014, but the said request was not considered by the investigation officer and accounts as well as properties stands attached vide order dated 27.08.2020, whereafter, petitioner filed Writ Petition challenging the validity of the titled complaint vide writ petition No.2834/2020, however, the same was dismissed vide order dated 29.03.2021 by referring alternate remedy in terms of 265-K Cr.P.C. and the trial court while hearing the application under section 265-K Cr.P.C. dismissed the same through impugned order dated 22.12.2021 with the following observation:

"Perusal of record reveals that instant complaint has been filed by the complainant against the present accused/petitioners to evade the income tax and as per complaint this period is (01-07-2013 to 30-06-2018 meaning thereby the case of the prosecution is prima facie based on year 2014 and also pertaining to the further years up to 2018. It is pertinent to mention here that while framing the charge Court considered the complaint, statement of witnesses under section 161 Cr.P.C. recovery memos and other attached documents and after the perusing the aforementioned report, statement of witnesses and other related documents attached with the complaint, in my humble view prima facie material is available on the record from which the charge against accused/ petitioners can be framed for their commission of predicate offence and after recording the evidence the plea of the accused/petitioners that matter is only pertained to the year 2014 can be determine. Accused/petitioners have every right to rebut the case of prosecution by producing the evidence in their defence. Therefore keeping in view the aforementioned circumstance the instant petition under section 265-K Cr.P.C. filed by the accused/petitioners is hereby disposed of with the observation that they can rebut the prosecution case and produced evidence in their defence at proper stage of the trial. Now to come up for framing of the charge on 12-01-2022"

In view of above order instant appeal has been filed.

1. Learned counsel for the petitioners contends that the order passed by learned Judge Special Court suffers from infirmities; that all criminal proceedings initiated on the basis of complaint pursuant to notice under section 9 (1) of the Anti-Money Laundering Act, 2010, by declaring that various bank accounts owned by the appellant are proceeds of crime, though, there is no evidence on record to prima facie declare any of the income referred in entire record is of proceeds of crime; that the provisions under sections 192/192-A of the Income Tax Ordinance, 2001, was made part of schedule of the Anti-Money Laundering Act, 2010, through SRO No.425(I)/2016, therefore, invoking of Anti-Money Laundering Act, 2010, pertaining to tax year 2014 is against the law.

2. Conversely, learned counsel for the State contends that contention raised by the appellant could only be settled after recording of evidence as instant application under section 265-K Cr.P.C. is premature and the trial court has rightly dismissed the same.

3. Arguments heard, record perused.

4. Perusal of record reveals that the appellants have challenged the very basis of the entire case which has been initiated on the basis of notice under section 9(1) of the Anti-Money Laundering Act, 2010, dated 03.09.2020, though the complaint under section 21(2) of the Anti-Money Laundering Act, 2010, was lodged against the appellants with permission accorded by learned Special Court under section 8(1) of the Anti-Money Laundering Act, 2010, on 27.08.2020. As per stance of appellants the notice issued under section 9(1) of the Anti-Money Laundering Act, 2010, was replied but same was not in accordance with the required standard as per the stance of the investigation officer and requested information was not conveyed. The proceedings further reflects that W.P No.2834/2020 was filed before the Islamabad High Court which was dismissed by referring the alternate remedy in terms of section 265-K Cr.P.C. available to the appellants, therefore, as per the appellants claim they exercised the same remedy but same was not adhered to.

5. Before proceeding further it is necessary to consider procedure in terms of prosecution for the offence of tax evasion as to money laundering the Anti-Money Laundering Act, 2010, has been enacted with intent to "provided for prevention of money laundering, combating financing of terrorism and forfeiture of property derived from, or involved in, money launder or financing of terrorism and for matters connected therewith or incidental thereto". Such aspect gives complete outline of the law and clarifies the intention of the law maker, hence, this Court as well as the investigation officer is required to keep the intent of the law maker always in mind as highlighted in preamble of the law referred above. Before going into detail in depth analysis of the Anti-Money Laundering Act, 2010, it is necessary to go into the definition of money laundering in other foreign jurisdictions, whereby, Money laundering is the process of conversion of illicit money which comes out of the crime which is then intermixed with the licit money to make appear legitimate, and it becomes very difficult to distinguish the legitimate money from the illegitimate one. The process has three main phases firstly, the black or soiled money must be sliced from the predicate offence; secondly, the money chain must be made mysterious or destroyed so as to avoid discovery; and lastly, the proceeds of such crime are re-injected into further business activity to launder it. United Nations Convention against Transnational Organized Crime (Palermo Convention) outlines money laundering as:

"the conversion or transfer of property, knowing that such property is the proceeds of crime, for the purpose of disguising the illicit origin of the property or of helping any person who is involved in the commission of the predicate offence to evade legal consequences of his/her action; the concealment or disguise of the true nature, source, location, disposition, movement or ownership of or rights with respect to property, knowing that such property is the proceeds of crime; the acquisition, possession or use of property, knowing at the time of receipt that such property is the proceeds of crime; participation in, association with or conspiracy to commit, attempt to commit and aiding and abetting, facilitating and counseling the commission of any of the offences established in accordance with this article.

In UK, money laundering is an offence under section 327 of the Proceeds of Crime Act (2002) (POCA) which reads as under:

"A person commits an offence if he or she conceals, disguises, converts or transfers criminal property or removes it from England and Wales or Scotland or Northern Ireland; enters into or becomes concerned in an arrangement which he or she knows or suspects facilitates the acquisition, retention, use or control of criminal property; acquires, uses or has possession of criminal property."

In the context of USA, under section 1956 of US Code 18:

"Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds specified unlawful activity: with the intent to promote the carrying on of specified unlawful activity; or with intent to engage in conduct constituting a violation of section 7201 or 7206 of the Inland Revenue Code of 1986; or knowing that the transaction is designed in whole or in part to conceal or disguise the nature of, the location, the source, the ownership or the control of the proceeds of specified unlawful activity; or to avoid transaction reporting requirement under State of Federal Law."

In Pakistan the definition of offence of money laundering provided in Section 3 of Anti-Money Laundering Act, 2010, which is reproduced as under:

3. Offence of money laundering. A person shall be guilty of offence of money laundering, if the person:-

(a) acquires, converts, possesses, uses or transfers property, knowing or having reason to believe that such property is proceeds of crime;

(b) conceals or disguises the true nature, origin, location, disposition, movement or ownership of property, knowing or having reason to believe that such property is proceeds of crime;

(c) holds or possesses on behalf of any other person any property knowing or having reason to believe that such property is proceeds of crime; or

(d) participates in, associates, conspires to commit, attempts to commit, aids, abets, facilitates, or counsels the commission of the acts specified in clauses (a), (b) and (c).

Explanation-I. The knowledge, intent or purpose required as an element of an offence set forth in this section may be inferred from factual circumstances in accordance with the Qanun-e-Shahadat Order, 1984 (P.O. 10 of 1984).

Explanation II. For the purposes of proving an offence under this section, the conviction of an accused for the respective predicate offence shall not be required.

All above-mentioned denotations, however, appear valid; centered on income, property, illicit proceeds and unlawful activities largely anchored to criminal aspects. Apparently, all of the above-mentioned definitions of money laundering almost cover any type of conduct with "proceeds of crime" falling within the range of "money laundering" and consequently made culpable.

1. Now, the next question is the property involved in money laundering is actually proceeds of crime or the property is made from the crime money, such question is to be determined by the trial court after recording evidence. For the prosecution of the offence of money laundering with reference to present case it is obligatory upon the prosecution to demonstrate that tax evasion and false verification under sections 192 and 192A of Income Tax Ordinance 2001 (ITO) has visibly seen, which are scheduled offences under Anti-Money Laundering Act, 2010, as a predicate offence as defined under section 2(xxvi) which is hereby reproduced as under:

"Means an offence specified in Schedule-I of this Act (AMLA)"

Articles 192 and 192(A) of the Schedule-I to the "AMLA" are reproduced hereunder:

"192 Prosecution for false statement in verification - where tax sought to be evaded is ten million rupees or more.

192A Prosecution for concealment of income - where tax sought to be evaded is ten million rupees or more.

Allegation of any scheduled offence; Any person who is accused of tax evasion under sections 192 and 192A, as predicate offence as to money laundering the said person will be tried separately and not as a single offence. And two separate investigations would be conducted as settled by this court in 2023 PCr.LJ [Islamabad] 38 (Muhammad Rafiq v. DG FIA, Islamabad). This question of two separate trials has been pretty much resolved under section 9 subsection (5) of the AMLA 2010, which is reproduced as under:

"(5) Where on conclusion of a trial for any predicate offence and money laundering, the person concerned is acquitted, the attachment of the property or retention or seizure of the property or record under subsection (3A) and net income, if any, shall cease to have effect."

The moot question to be determined is if an undeclared or un-accounted amount of money comes in and goes out of the banking account of someone, the Commissioner under section 176 (1)(b) ITO 2001, is empowered to send notices to such person and ask them to furnish the proof of such amount. Which is reproduced as under:

(1) The Commissioner may, by notice in writing, require any person, whether or not liable for tax under this Ordinance -

(a) to furnish to the Commissioner or an authorized officer, any information relevant to any tax leviable under this Ordinance or to fulfill any obligation under any agreement with foreign government or governments or tax jurisdiction, as specified in the notice; or; and

(b) to attend at the time and place designated in the notice for the purpose of being examined on oath by the Commissioner or an authorized officer concerning the tax affairs of that person or any other person and, for that purpose, the Commissioner or authorized officer may require the person examined to produce any accounts, documents, or computer-stored information in the control of the person.

The said person, accused of 192 and 192A has to give explanation for this unaccounted money, and the investigation/inquiry would be initiated under the ITO 2001 instead of AMLA 2010. It is like misusing of authority to consider that the undeclared amount/money is the laundered money without obtaining an explanation from the assessee. The accused/assessee is under obligation to give explanation about the money (undeclared/concealed/not on tax net) that where it came from. The division bench of Sindh High Court in 2022 PTD [Karachi] 634 (Govind Ram v. The Federation of Pakistan) elaborated and gave its view that charging a person under 192 and 192A of ITO and under section 3 of AMLA 2010 at the same time is a pre-mature and pre-conceived notion that the accused is also involved in money laundering. It is like jumping to the conclusion that the unaccounted (taxable) income are proceeds of crime and the accused is nothing but involved in money laundering. The court disposed the petition with following observation:

"We are therefore, of the view that unexplained amount which came in and went out of the account, could be inquired about and an explanation could be sought but until and unless an explanation is forwarded by the assessee to the dissatisfaction of the officer concerned, it is inconceivable at the said premature stage that it was laundered money which is defined under Anti-Money Laundering Act, 2010. Any amount which is not accounted or not considered as taxable amount not necessarily be the laundered money having meaning under AMLA-2010."

1. While considering the above discussion this Court comes to the core question and ground raised by the appellants in this case which is based upon a legal question referred in Para No.12 of instant appeal read with Para No.17 (C) and (D) of the ground mentioned in the appeal and highlighted in application under section 265-K Cr.P.C. with reference to grounds (A) and (B) which is as under:

"12. That it was also pointed out before the trial court that sections 192 and 192A of the Income Tax Ordinance, 2001 was inserted in the scheduled of the Act as a predicate offence vide SRO No. 425 (I) (2016) w.e.f May 2016, hence it is established fact that before 2016 violation of ordinance could not form the basis of money laundering allegations against the petitioners.

13. That it was also submitted before the trial court that it was evident from the Para No.5 of the complaint the only purported tax evasion was pertaining to tax year 2014 w.e.f the assessment order vide DCR No.01/51 dated 30/6/2020 under sections 122/124 of the Income Tax Ordinance 2001 has been passed by the assessing officers, which is still under litigations in the form of appeal before the appellant forum under relevant law, hence has not still attained the finality."

1. While appreciating the legal question referred by the appellants in this case it is necessary to go through the concept of "predicate offences" defined in section 2 (xxvi) of the Money Laundering Act, 2010, whereby, predicate offence means "an offence specified in Schedule-I to this Act". Similarly, the offence of money laundering defined in section 2 (xxiii) means "offence of money laundering has the meaning as defined in section 3" which has already been reproduced above and the last important aspect which is part and parcel of offence under section 3 of the Anti-Money Laundering Act, 2010, is term "proceeds of crime" defined in section 2 (xxviii) of the Act which means "any property derived or obtained directly or indirectly by any person from the commission of a predicate offence or a foreign serious offence", therefore, the definition of foreign serious offence is also required to be considered which has been explained in section 2 (xvi) which reads as under:

"Foreign serious offence" means an offence,-

(a) Against the law of a foreign state stated in a certificate issued by, or on behalf of, the government of that foreign state; and

(b) Which, had it occurred in Pakistan, would have constituted a predicate offence;

On comparison of these terms I have to consider the first part which deals with the predicate offence, which has been supported with Schedule (I) of the Act containing the provision of sections 192/192-A of the Income Tax Ordinance, 2001, for giving false statement in verification or for concealment of income where documents sought to be evaded is ten million rupees or more. This aspect clearly establishes that sections 192/192-A of the Income Tax Ordinance, 2001 was inserted by SRO No.425(I)/2016 dated 14.05.2016 in Schedule (I) of the Anti-Money Laundering Act, 2010, hence, it is clearly established that any act which is violation of law is to be terms as an offence. The "offence" may comprehend every crime and misdemeanor, or may be used in a specific sense as synonymous with felony or with misdemeanor, as the case may be, or as signifying a crime of lesser grade, or an act not indictable, but punishable summarily or by the forfeiture of a penalty as explained in Black's Law Dictionary by Bryan A. Garner, Editor in Chief. Similarly, the term "offence" has to be considered in terms of section 37 of section 2 of the General Clauses Act, 1897 which means "any act or omission made punishable by any law for the time being in force", therefore, it is clearly established that unless the act has been made punishable by any law enforced on the date and time when the same was committed by any individual is to be treated an offence or a crime under that law, else, the same has to be considered no offence in terms of the definition explained in light of AIR 2001 [SC] 938 (Surajmani Stella Kujur V. Durga Charan Hansdah). I have also been guided by the concept of crimes in respect of Pakistan Penal Code, 1860, whereas section 2 deals with the punishment of offence committed within Pakistan for every act or omission contrary to the provisions thereof of which he shall be guilty within Pakistan. On the plain reading of these provisions and the concept of offence it should have been declared by any law and notified in the procedure provided in the constitutional framework i.e. through Parliament. Likewise the Pakistan Penal Code also explains the term offence in section 40 which is as under:

2024 M L D 1897

[Islamabad]

Before Saman Rafat Imtiaz, J

Sultan Ahmed Hassan and another---Appellants

Versus

T & T Employees Cooperative Housing Society through General Secretary and others---Respondents

R.F.A No. 149 of 2018, decided on 7th May, 2024.

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

----Ss. 8, 9 & 42---Limitation Act (IX of 1908), First Sched., Arts. 3 & 142---Suit for recovery of possession---Limitation---Respondent/ defendant did not deny title of appellants/ plaintiffs to suit plots--- Trial Court dismissed the suit for not seeking recovery of possession under S.9 of Specific Relief Act, 1877, for which limitation was six months only---Validity---Appellants / plaintiffs were not required to seek any declaration as to their title---Claim of appellants / plaintiffs was based on their title to suit plots and not simply prior possession which they had been deprived of---Trial Court erred in concluding that suit filed by appellants/ plaintiffs was a suit under S.9 of Specific Relief Act, 1877, and was governed by Art. 3 of Limitation Act, 1908, where under limitation was six months and the suit was time barred---It was a suit under S.8 of Specific Relief Act, 1877, and applicable period of limitation was 12 years as provided under Art. 142 of Limitation Act, 1908---Suit was maintainable, in circumstances.

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

----Ss. 42 & 54---Co-operative Societies Act (VII of 1925), Ss.54 & 70---Co-operative Societies Rules, 1927, R. 33---Suit for declaration and injunction---Issue of cooperative society---Arbitration---Resolving of dispute---Two remedies, availing of---Appellants / plaintiffs being allottees of plots in respondent / society alleged that they had been dispossessed--- Respondent/ Registrar appointed his nominee to decide the issue through arbitration under S.54 of Co-operative Societies Act, 1925--- Trial Court dismissed the suit filed by appellants / plaintiffs--- Validity--- Nominee of Registrardirected respondent/ society to restore suit plots to appellants/ plaintiffs once all outstanding dues had been paid by them and in case same plots were not available then to adjust them with plots having same market value---Appellants/ plaintiffs had already exhausted their remedy under S.54 of Co-operative Societies Act, 1925, pursuant to which an order was delivered that had determined rights of partiesand the same had attained finality---High Court declined to interfere in judgment and decree passed by the Trial Court as appellants/ plaintiffs could not jump ship once again and continue to pursue the subject suit nor continue instant appeal which was a continuation of subject suit simply because theywere not happy with outcome of proceedings earlier instituted--- Appeal was dismissed, in circumstances.

Late Mst. Majeedan v. Late Muhammad Naseem through Legal Heirs and another 2001 SCMR 345; Muhammad Saeed v. Abdur Rahim PLD 2015 Peshawar 94; Muhammad Hassan v. Dharamdas, 2000 YLR 637; Mehran Bibi and others v. Sarwar Khan 2003 Law Notes 137; Maderssa Darul Fazal Halani v. Muhammad Ramzan Kashmiri 2005 CLC 83; Sardaran Bibi v. Muhammad Arshad; 2022 CLC 1703 and Muhammad Ayub (Deceased) through L.Rs. v. Hashim Khan (Deceased) through L.Rs.; 2023 CLC 504 Hazratullah v. Rahim Gul PLD 2014 SC 380; Muhammad Yameen alias Raja v. The State 2019 SCMR 84; Mst. Nishat Mushtaq v. Karachi Development Authority 2004 YLR 1811; Pakistan General Insurance Company Limited through Executive Vice-President v. Messrs Muslim Commercial Bank Ltd. 2015 CLD 600; Ashiq Hussain v. Additional District Judge 1993 CLC 799; Shaikh Muhammad Amjad v. The State 2002 PCr.LJ 1317; Amanullah v. The state PLD 2004 Quetta 105; Amanullah v. The State PLD 2003 Quetta 11; Syed Sultan Ali v. Sahibzada Frogh Najam Najmi 2009 CLC 477; S.M. Tariq Khawaja v. Registrar Cooperative Societies, Islamabad, 2020 CLC 653; P.E.C.H Society Limited v. Habib-ur-Razaq 2021 CLC 2011; Mrs. Parveen Akhtar and another v. Lucknow Cooperative Housing Society Ltd. through President/Chairman/Secretary and another 2014 YLR 1539; Mst. Attia Khanum v. Messrs Saadabad Cooperative Housing Society Ltd. 2002 MLD 209; Abdul Salam Ansari v. Province of Sindh through Secretary 2012 CLC 350; Defence Housing Authority Lahore v. Messrs Builders and Development (Pvt.) Ltd. 2015 SCMR 1799; Mst. Nishat Ishaq v. Amjad Khan 2014 CLC 71; Zia-ur-Rehman Alvi v. Messrs Allahabad Cooperative Housing Society Limited PLD 1995 Karachi 399; Province of the Punjab through Deputy Commissioner/District Collector, Rawalpindi, v. Muhammad Akram 2023 SCMR 755; Rafique Ahmed v. Ashok Kumar 2017 CLC 317; Amanullah v. Mst. Gulam Janat 1989 SCMR 547; Atta Muhammad Qureshi v. Iqbal 1994 CLC 2417; Hassan v. Hussain 1996 CLC 650; Parsotim Thakur v. Lal Mehar Thakur A.I.R 1931 Privy Council 143; Chief Executive Officer NGCL, GENCO-III TPS Muzafargarrah v. Khalid Umar Tariq Imran and others 2024 SCMR 518 and Muhammad Idrees Abbasi v. Syed Akbar Khan 2022 CLC 1322 rel.

Ch. Naseer Ahmed Tahir for Appellants.

Jameel Hussain Qureshi and Nawazish Ali for Respondent No. 1.

Respondents Nos. 2 and 3, ex parte.

Date of hearing: 23rd April, 2024.

Judgment

Saman Rafat Imtiaz, J.---The Appellants/Plaintiffs [Sultan Ahmed Hassan and Sultan Gul Hassan] have filed the instant Regular First Appeal to assail the Judgment and Decree dated 15-09-2018 ("Impugned Judgment") passed by the Court of the learned Civil Judge 1st Class (West), Islamabad ("Trial Court"), whereby the Suit filed by the Appellants/Plaintiffs was dismissed.

1. The relevant facts of the case as per the Memo. of Appeal are that the Appellant/Plaintiff No. l and Appellant/Plaintiff No.2 were allotted Plots Nos. 688 and 689 ("Subject Plots") respectively vide separate Allotment Letters dated 21.06.2004 issued by the Respondent/Defendant No. 1 [T & T Employees Cooperative Housing Society]. The Appellants/Plaintiffs claim that possession of the Subject Plots was delivered to them vide Letters No.022 and 021 dated 30.11.2010 and 01.12.2010 respectively and that they raised boundary walls after taking possession in the month of December, 2010. They alleged that the Respondent/Defendant No.1 demolished the boundary walls of the Subject Plots without any lawful authority and that the matter was reported to Respondents/Defendants Nos.2 and 3 [The D.C./Registrar, Cooperative Department, ICT and the Circle Registrar, Cooperative Department, ICT] but they failed to fulfill their obligations and further that Appellants/Plaintiffs repeatedly asked the Respondents/Defendants to restore possession but to no avail.

2. The Appellants/Plaintiffs filed Suit for Possession, Permanent and Mandatory Injunction ("Subject Suit") before the learned Trial Court. The Respondent/Defendant No. 1 filed a written statement whereby allotment of the Subject Plots to the Appellants/Plaintiffs was not denied however it was claimed that developmental work is in progress due to which possession has not been delivered to any member and as such the question of dispossession or restoration of possession does not arise. The learned Trial Court framed the following issues:

(i) Whether the plaintiffs are entitled for possession, permanent and mandatory injunction as prayed for? OPP

(ii) Whether the plaintiff has no cause of action and locus standi to file the instant suit? OPD

(iii) Whether the jurisdiction of this court is barred under Sections 54, 70, 70-A of the Cooperative Societies Act? OPD

(iv) Whether the suit is not maintainable and plaint is liable to be rejected under Order VII Rule 11 C.P.C.? OPD

(v) Relief.

1. After recording of evidence and hearing the arguments of the parties, the learned Trial Court dismissed the Subject Suit vide the Impugned Judgment by deciding Issue No.1 and holding, in essence, that the Appellants/Plaintiffs did not meet their burden of proof under Section 9 of the Specific Relief Act, 1877 ("Specific Relief Act") and that the Subject Suit was time barred under Article 3 of the Limitation Act, 1908 ("Limitation Act"). Whereas Issues Nos.2, 3, and 4 were not pressed by the Respondents/Defendants.

2. It is noted that the Subject Suit was filed by the Appellants/Plaintiffs without specifying the provision of law where under it had been instituted. The Trial Court took into consideration the fact that though the Appellants/Plaintiffs asserted that they were in possession of the Subject Plots which they have been dispossessed of, they only sought restoration of possession without seeking any declaration and as such determined that the Subject Suit was a suit under Section 9 Specific Relief Act. Furthermore, according to the Impugned Judgment during the course of arguments the learned counsel for the Appellants/Plaintiffs, in answer to a specific question, stated at bar that the Subject Suit is a suit for restoration of possession under Section 9 ibid.

3. As such, the learned Trial Court found that the Subject Suit is a suit under Section 9 of the Specific Relief Act and therefore opined that the court simply has to determine whether or not the Appellants/Plaintiffs were holding possession of the Subject Plots and whether they were dispossessed of the same. The Trial Court after recording of evidence held by way of the Impugned Judgment that the Appellants/Plaintiffs did not produce cogent evidence with respect of delivery of possession or the alleged dispossession and as such a decree of restoration of possession cannot be granted.

4. The learned Trial Court further observed in the Impugned Judgment that the plaint does not mention the date of dispossession which is fatal to a suit under Section 9 of the Specific Relief Act and that even otherwise the date of dispossession as deposed by the PW-1 (attorney of the Appellants/Plaintiffs) makes the Subject Suit time barred and as such the Appellants/Plaintiffs are not entitled to any relief. Being aggrieved of the Impugned Judgment the Appellants/Plaintiffs preferred the instant appeal.

5. The learned counsel for the Appellants/Plaintiffs submitted that the Impugned Judgment is the result of misreading and non-reading of evidence. He argued that the Subject Suit was filed under Section 8 of the Specific Relief Act which is governed by Article 142 of the Limitation Act, 1908 where under the limitation period is 12 years from the date of dispossession and, therefore, the Subject Suit was not time barred. According to the learned counsel for the Appellants/Plaintiffs the learned Trial Court wrongfully observed that the counsel had categorically stated at the bar that it is a suit for restoration of possession under Section 9 of the Specific Relief Act, which attracts a limitation period of six months under Article 3 of the Limitation Act, 1908 as no such statement had been made. He explained that declaration as to ownership was not sought as the title of the Subject Plots is admitted by the Respondents/Defendants but that the same does not take the Subject Suit out of the purview of Section 8 of the Specific Relief Act.

6. On the other hand, the learned counsel for the Respondent/Defendant No.1 drew the attention of the Court to various paragraphs of the plaint filed in the Subject Suit instituted by the Appellants/Plaintiffs wherein it has been categorically alleged that possession was delivered to the Appellants/Plaintiffs after allotment. He therefore argued that the learned Trial Court correctly concluded that the Subject Suit was a suit under Section 9 of the Specific Relief Act which is a suit by a person dispossessed of an immovable property. He contended that the Subject Suit does not fall under Section 8 of the Specific Relief Act as such a suit pertains to a claim of possession of immovable property based on entitlement whereas no declaration as to title was sought by the Appellants/Plaintiffs vide the Subject Suit as is evident from the prayer. He also submitted that even otherwise the Subject Suit was not maintainable as it was filed against a cooperative society which is governed by the Cooperative Societies Act, 1925 ("Cooperative Societies Act") wherein according to Section 54, if any dispute touching the business of a society arises it shall be referred to the Respondent/Defendant No. 2/Registrar for decision by himself or his nominee, or if either of the parties so desires, to arbitration of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned.

7. I have heard the learned counsel for the parties and have also perused the relevant record.

Difference between Sections 8 and 9 of the Specific Relief Act

1. The first point for determination in the instant appeal is whether the Subject Suit was a suit under Section 8 or Section 9 of the Specific Relief Act. In order to make such determination it is necessary to first understand and appreciate the distinction between the two aforementioned provisions of the Specific Relief Act.

2. In this regard, the case of Late Mst. Majeedan v. Late Muhammad Naseem through Legal Heirs and another, 2001 SCMR 345 is instructive. In the said case the immovable property was owned by the petitioners who had allowed the respondent to establish a business thereupon but later on dispossessed the respondent by use of force. Consequently, a suit under Section 9 of the Specific Relief Act was filed by the respondents. The petitioners' objected to the maintainability of such suit under the aforesaid provision of law. The Supreme Court examined various rulings not just from Pakistan but also from India and explained that Section 9 gives a specific privilege to a person in possession to take action promptly in case they are dispossessed. It entitles them to succeed simply by proving (a) that they were in possession; (b) that they have been dispossessed by the defendant; (c) that the dispossession is not in accordance with the law; and (d) that the dispossession took place within six months of the suit.

3. The Supreme Court clarified that no question of title either of the plaintiff or of the defendant can be raised or gone into in such case. In fact, if the plaintiff is in possession it is immaterial that such possession was without title. The Supreme Court emphasized that it is a well-established legal position that any person who has been dispossessed otherwise than in due course of law can without pleading or proving title seek recovery of title and that such relief may be sought even against the true owner of the property himself. In suits under Section 9 ibid the court does not try the question of title and therefore the defendant cannot resist the plaintiff's suit on the ground of his being the rightful owner. No matter how good the title of the defendant, the person previously in possession is entitled to a decree of possession in a suit under Section 9 of the Specific Relief Act if the dispossession is otherwise than due course of law provided that the suit is brought within six months of the date of dispossession. In other words the only question to be seen in suits under Section 9 ibid is whether the plaintiff was in possession and whether such possession has been disturbed without lawful authority.

4. The Peshawar High Court discussed the difference between a suit brought under Section 8 and one brought under Section 9 of the Specific Relief Act in Muhammad Saeed v. Abdur Rahim, PLD 2015 Peshawar 94. It was held that the provisions contained in Section 8 of the Specific Relief Act provide the remedy for recovery of specific immovable property to any person entitled to possession against any person having no legal title to retain or occupy and possess such land whereas the provisions contained in Section 9 ibid provide remedy to a person who has been dispossessed without his consent otherwise than in due course to recover his legal possession.

5. Similarly the Sindh High Court at Karachi in Muhammad Hassan v. Dharamdas, 2000 YLR 637 described the difference by holding that Section 9 ibid provides the relief of reinstatement/possession to a person who has been illegally dispossessed and that for such purpose he is not required to prove title whereas Section 8 of the Specific Relief Act provides remedy to a person who is entitled to possession of an immovable property such as owner, mortgagor, mortgagee or trustee or a beneficiary in trust and also tenants and lessees. There are a number of judgments that have recognized that Section 8 ibid provides remedy to not only persons entitled to possession on the basis of ownerships but also on the basis of possession.

Whether the Subject Suit was filed under Section 8 or Section 9 of the Specific Relief Act

1. Now let us see how to gauge whether a suit has been filed under Section 8 or Section 9 of the Specific Relief Act particularly when no specific provision has been referred to in such suit. In the case of Mehran Bibi and others v. Sarwar Khan, 2003 Law Notes 137 the Lahore High Court held that if by reading the whole plaint, it is found that the case of the plaintiff is based upon his previous possession and subsequent dispossession by defendants, suit was competent under Section 9 but if it was found that the plaintiff is claiming possession on the basis of his title to the property and further alleged dispossession by the defendant, such suit would fall under Section 8.

2. I have examined the plaint filed by the Appellants/Plaintiffs in the Subject Suit in light of the said case law. The perusal of the plaint clearly shows that Appellants/Plaintiffs are seeking recovery of possession of the Subject Plot on the basis of their respective allotment letters. Thus it is evident that possession is claimed by the Appellants/Plaintiffs vide the Subject Suit on the basis of their title to the Subject Plots and that they have been dispossessed of the possession thereof at the hands of the Respondent/Defendant No.1, which brings the Subject Suit within the purview of Section 8 of the Specific Relief Act.

Is a suit maintainable under Section 8 of the Specific Relief Act without seeking declaration as to title?

1. The learned counsel for the Respondent/Defendant No.1 argued that a suit under Section 8 of the Specific Relief Act cannot be brought without seeking declaration to title. In my humble opinion such stance is misconceived. Section 8 ibid provides the remedy of recovery of specific immovable property to a person entitled thereto. That does not mean that a person entitled to possession of an immovable property would in all cases also be compelled to seek declaration with regard to his title. A person entitled to immovable property may be dispossessed of it without denial of his title in which case there would be no need to seek a declaration of title.

2. The Lahore High Court in Sardaran Bibi v. Muhammad Arshad, 2022 CLC 1703 and Muhammad Ayub (Deceased) through L.Rs. v. Hashim Khan (Deceased) through L.Rs., 2023 CLC 504 while relying upon Hazratullah v. Rahim Gul, PLD 2014 SC 380 held that the words entitled to the possession as used in Section 8 of the Specific Relief Act presupposes that in order to obtain a decree for possession the plaintiff in such case is entitled to the possession or in other words that it implies an inbuilt declaration as to entitlement of a plaintiff in respect of a property. In fact, if the title/ownership is in dispute for which declaration is required the suit would be instituted under Section 42 of the Specific Relief Act and not under Section 8 ibid.

3. In the instant case, a bare perusal of the written statement filed by the Respondent/ Defendant No. 1 shows that issuance of the allotment letters to the Appellants/Plaintiffs in respect of the Subject Plots has not been denied. Instead the case of the Respondent/Defendant No. 1 simply is that since developmental work is in progress possession has not been delivered to any member and as such the question of dispossession or restoration of possession does not arise. In such circumstances where the Respondent/Defendant No. 1 has not denied the Appellants/Plaintiffs title to the Subject Plots they were not require to seek any declaration as to title. However, that does not change the fact that the claim of the Appellants/Plaintiffs is based on their title to the Subject Plots and not simply prior possession which they have been deprived of. Therefore, the learned Trial Court erred in concluding that the Subject Suit filed by the Appellants/Plaintiffs was a suit under Section 9 of the Specific Relief Act.

Scope of a suit under Section 8 of the Specific Relief Act

1. This error led to the incorrect premise of the learned Trial Court that the court simply has to determine whether or not the Appellants/Plaintiffs were holding possession of the Subject Plots and they were dispossessed of the same. The Trial Court after recording of evidence held by way of the Impugned Judgment that the Appellants/Plaintiffs did not produce cogent evidence with respect of delivery of possession and the alleged dispossession and as such a decree of restoration of possession cannot be granted.

2. On the contrary, since the Subject Suit was in fact a suit under Section 8 of the Specific Relief Act the Trial Court was required to determine whether the Appellants/Plaintiffs were entitled to the possession of the Subject Plots on the basis of their allotment regardless of whether or not they were earlier granted possession thereof and were dispossessed of the same unlawfully. In the case of Mst. Nishat Mushtaq v. Karachi Development Authority, 2004 YLR 1811 an objection was raised that admittedly possession had never been delivered to the appellant whereas concept of recovery of possession necessarily entails earlier dispossession. The Sindh High Court at Karachi was not persuaded and clarified that recovery of possession must be preceded by dispossession for a suit under Section 9 of the Specific Relief Act however under Section 8 a person entitled to possession may recover it in the manner prescribed in the C.P.C. Thus even if the Appellants/Plaintiffs were unable to prove by way of evidence that possession had been delivered to them earlier as alleged and thereafter they were dispossessed the Trial Court under Section 8 of the Specific Relief Act was nevertheless required to determine whether the Appellants/Plaintiffs were entitled to possession or not based on their ownership.

3. Similarly the Trial Court erred in holding that the Subject Suit being a suit under Section 9 of the Specific Relief Act is governed by Article 3 of the Limitation Act where under limitation is six months and that as such the Subject Suit was time barred. Since the Subject Suit was a suit under Section 8 of the Specific Relief Act the applicable period of limitation was 12 years as provided under Article 142 of the Limitation Act.

4. Be that as it may, these issues have lost its significance for reasons discussed below.

Jurisdiction of Civil Courts in view of Sections 54, 70, and 70A of the Cooperative Societies Act

1. The second point for determination in the instant appeal is whether the Subject Suit was maintainable in view of Sections 54, 70, and 70A of the Cooperative Societies Act. It is noted that the issues framed by the learned Trial Court in this regard i.e. Issues Nos. 3 and 4 were not pressed by the Respondents/Defendants. However, courts are duty bound to decide fundamental questions such as jurisdiction at the earliest even if no objection to such effect has been raised. Yet no findings were rendered by the Trial Court in respect of the maintainability of the Subject Suit on the touchstone of Sections 54, 70, and 70A of the Cooperative Societies Act.

2. Regardless however it is settled law that jurisdiction being a question that goes to the root of the dispute can be raised even at the appellate stage. Lack of jurisdiction renders the entire proceedings coram non judice thereby vitiating the entire proceedings and making the judgment illegal and void. The failure to address jurisdiction or even waiver thereof does not imbue a court with jurisdiction not vested in it in law. Therefore, it is necessary for this Court to determine the point of jurisdiction involved in the Subject Suit in the instant appeal notwithstanding that the Respondents/Defendants chose not to press it before the Trial Court.

3. The Subject Suit was filed by the Appellants/Plaintiffs alleging that they have been dispossessed of their possession over the Subject Plots at the hands of the Respondent/Defendant No. 1 which is a cooperative housing society. Thus, the Subject Suit involved a dispute touching the business of a society arising between the society impleaded as Respondent/Defendant No.1 and members of the society i.e. the Appellants/Plaintiffs and as such the dispute falls within the scope of Section 54(c) of the Cooperative Societies Act in view of which jurisdiction of civil courts is barred under Section 70A ibid.

4. The plaintiffs in Mrs. Parveen Akhtar and another v. Lucknow Cooperative Housing Society Ltd. through President/Chairman/Secretary and another, 2014 YLR 1539 were allottees of two plots which were cancelled who filed civil suits to challenge such cancellation. The defendant society filed an application under Order VII, Rule 11, C.P.C. seeking rejection of plaint in view of the bar contained in Section 54 of the Cooperative Societies Act. The Sindh High Court at Karachi considered whether the plaint was maintainable in view of Sections 54, 70, and 70A of the Cooperative Societies Act and rejected the plaint by holding that the plaintiffs should have first taken their dispute with the society to the Registrar as per Section 54 and that if the plaintiffs were not willing to avail such remedy they were under a legal obligation to send notice to the Registrar pursuant to Section 70 before filing a civil suit against the society as follows:

"7. In section 54 of the Act, 1925, the requirement of law is that if disputes touches the business of a Society and it is between the Society and its member, it shall be referred to the Registrar and proviso to the section provides only one condition for instituting the suit against the Society that the Registrar himself has suspended the proceedings in the matter on the ground that the question at issue is one involving complicated questions of law and facts. Even this condition is limited to the period of six months from the date of Registrar's order of suspending the proceedings and in case the suit is not filed within six months, the Registrar is empowered to decide even complicated question of law and the facts. In the instant suit, the plaintiffs, in the first place, should have taken their dispute with the Society to the Registrar. Therefore, if at all the plaintiffs were not willing to avail arbitration in terms of section 54 of the Act, 1925 to redress their grievance on the alleged illegal cancellation of their plots and wanted to file suit against the Society, they were under legal obligation to send notice to the Registrar before filing the suit against the Society. The requirement of section 70 of the Act, 1925 was yet another obstacle in the way of the plaintiffs.

"70. Notice necessary in suits.---No suit shall be instituted against a society or any of its officers in respect of any act touching the business of the Society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left."

1. The plaintiffs have not sent any notice to the Registrar, Cooperative Societies that they are aggrieved by action of the Society and they propose to take the Society to the Court of law for redressal of their grievance. Learned counsel for the plaintiffs has no answer to the question that why the provisions of sections 54 and 70 of the Cooperative Societies Act, 1925 be ignored by this Court to entertain his plaint. The Courts are not supposed to assume the jurisdiction of competent forum available within the statute governing the issues and relations between the parties. In this case, the members of the Society when pitched against the Society on account of the action of cancellation of their plots by the Society and the Society claims to have done it during the course of its business, they have to follow the law governing the parties in such like situation. In the case in hand the parties are governed by the Cooperative Societies Act, 1925 and sections 54 and 70 provide first a statutory remedy of arbitration to the aggrieved party and then takes away jurisdiction of Civil Court to try such dispute of a civil nature. Both in section 54 and section 70 of the Act, 1925 the expressions used is the "dispute touching the business of the Society" is employed to oust the jurisdiction of Civil Court on the ground that cognizance of such civil dispute is to be taken by the arbitration panel of three arbitrators. Therefore, Civil Court cannot try and adjudicate the "dispute touching the business of a Society" as it falls within the exception in terms of the exception referred to in section 9 of the Civil Procedure Code, 1908 and it reads as under:--

"9. Court to try all civil suits unless barred.---The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."

Since there is a statutory forum to take cognizance of such dispute of civil nature this Court cannot usurp the power of such statutory forum.

1. In view of the above discussion and the case-law cited, the plaint is rejected and all the pending applications are also dismissed."[Emphasis added].

2. In the instant case, however, the Appellants/Plaintiffs did in fact take their dispute with the Respondent/Defendant No. 1/Cooperative Society to the Registrar as is evident from the Complaint dated 02-04-2012 written to the Chief Commissioner, ICT and copied to the Respondents/Defendants Nos. 2 and 3 as Ex.P12, Ex.P13 and Ex.P14 whereby it was alleged that the Respondent/Defendant No. 1 has illegally raised construction on the Subject Plots thereby violating the Appellants/Plaintiffs ownership rights and prayed for assistance in regaining possession. The said Exhibits also bear receiving by the Respondents/Defendants Nos. 2 and 3 on 02-04-2012. Moreover, receipt thereof by the Respondents/Defendants Nos. 2 and 3 is also evident from the Notification dated 04.04.2017 issued by the Respondent/Defendant No.3 produced as part of Ex.P15, whereby in exercise of the powers under Section 54 of the Cooperative Societies read with Rule 33 of the Cooperative Societies Rules, 1927 the Assistant Commissioner (Sectt) ICT, Islamabad was appointed the Registrar's nominee to decide the case titled "Mr. Sultan Ahmed Hassan House No. 15 Street No. 33 E-11/3 Islamabad v. T & T Employees Cooperative Housing Society, Islamabad"within 60 days. It is noteworthy that the Registrar's nominee was appointed five years after the Appellants/Plaintiffs Complaint to the Respondents Nos. 2 and 3. In the meantime the Appellants/Plaintiffs filed the Subject Suit on 10.11.2012.

3. The question that arises in the instant case is whether the Appellants/Plaintiffs were justified in filing the Subject Suit despite the dispute falling within the ambit of Section 54 of the Cooperative Societies Act if no action was taken by the Respondent/Defendant No. 2 with regard to the referral of their dispute for five years. The answer lies in Section 70 of the Cooperative Societies Act, which envisages filing of a suit in respect of any act touching the business of a society provided requisite notice of two months is served.

4. The interplay between Sections 54, 70, and 70A ibid has already been thoroughly discussed and the scheme of law explained by the Sindh High Court at Karachi in the cases of Mst. Atia Khanum v. Messrs Saadabad Cooperative Housing Society Ltd., 2002 MLD 209, and Abdul Salam Ansari v. Province of Sindh through Secretary, 2012 CLC 350 as follows:

"11. The learned counsel for the defendant No.3 in addition to the above exposition of the affairs of the Society at the hands of the plaintiff very powerfully argued on the maintainability of the suit and asserted that it be nipped in the, bud. Learned counsel in contending that the present suit was not maintainable in view of sections 70 and 70A of Act, 1925, firstly relied upon the case of Muhammad Ali, Memorial Cooperative Housing Society Karachi v. Syed Sibt-e-Hassan Kazmi (PLD 1975 Karachi 428) wherein it was held by a single Judge of this court that the provisions of section 70 of Act, 1925 are mandatory and in failure to give notice as required by such section renders the suit not maintainable even though the plaintiff have had a good or an unanswerable case and even if the award (which was the subject-matter of that suit) was void, still requirement of notice under section 70 persisted and keeping in view such mandatory provision in sight, the appeal was dismissed wherein order passed by the court below, dismissing the suit on the touchstone of section 70 of Act, 1925 had been dismissed. Second case that was relied upon by the learned counsel was Farida v. Prince Apartment Cooperative Housing Society and 2 others (1984 CLC 2914) where again a Single Judge of this court rejected the plaint by observing that mandatory provisions of section 70 of the Act having not been complied with, the suit was not maintainable by holding that sections 70 and 70A provide protection to a society registered under the 1925 Act for being sued in a court of law in respect of matter, determinable by the provincial government or its functionaries. The main reason for rejection of the plaint in the precedent cited that prevailed on the court was that since suit in respect of an act touching business of registered cooperative society without service of prescribed mandatory notice under section 70 of 1925 Act has not been served, the suit was not maintainable. In the case of Zia-ur-Rehman Alvi v. Allahabad Cooperative Society Limited and 2 others (PLD 1995 Karachi 391), the third case that was relied upon by the learned counsel, yet again a Single Judge of this court rejected the plaint in the suit filed by Zia-ur-Rehman Alvi when it was brought to the notice of the court that the suit was filed without first serving notice under section 70 of 1925 Act though in such suit it was raised that a notice was sent to the Society but the same was non-suited inasmuch as that it was observed by the learned Single Judge that no specific, notice as required under section 70 of the Act of 1925 was specifically sent and/or served on the defendant-society. It was further held in the cited precedent that since the dispute that was brought before the court touching the business of the society and therefore the bar contained under section 70A became applicable and therefore the court had no jurisdiction to entertain or adjudicate upon the dispute and that no saving has been provided expressly under the 1925 Act with reference to the disputes to be agitated before the court. In the fourth case of Mst. Atia Khanum v. Messrs Saadabad Cooperative Housing Society Ltd. and others (2002 MLD 209), relied upon by the learned counsel, it was held by a Single Judge of this court and quite exhaustedly that: "if the jurisdiction of Court is totally barred, whether the provisions contained in section 70 shall become redundant, nugatory and otiose. My answer is in negative. As already observed while discussion the principles of interpretation of statutes, all the provisions in an enactment are to be considered in its totality so as to discern the intention of the legislature, without making any provision in the enactment as nugatory or redundant. Thus, when all the three sections 54, 70 and 70-A are read together, the scheme of the legislation which emerges, is as follows:

(a) By virtue of the provisions contained in section 70-A, the jurisdiction of Court is absolutely barred in respect of the matters mentioned in clauses (a), (b) and (c) of subsection (1) of section 70-A read with the provisions contained in section 54.

(b) Notwithstanding, the bar contained in section 70-A, the suit can be filed under the provisions expressly provided in the Cooperative Societies Act, 1925.

(c) One of the provisions expressly provided in the Act pertaining to the filing of suit by any party is contained in proviso to section 54. It envisages that any dispute touching the business of Society shall be referred first to the Registrar and then if the Registrar is of the view that there is any question or issue involving complicated questions of law and fact, the Registrar may if he thinks fit suspend the proceedings in the matter, until the question has been tried by a regular suit instituted by one of the parties or by the Society. Thus, if any suit is filed under this provision neither any notice under section 70, shall be required to be served on the Registrar nor the jurisdiction of the Court shall be barred.

(d) The second express provision in the Act, is contained in section 70. Section 54 and section 70 are to be read together. As already observed, any dispute touching the business of a Society is to be referred to the Arbitration envisaged under section 54. However, the legislature has not left an aggrieved person completely at the mercy of Registrar, by enacting the provisions contained in section 70. Section 70 is couched in negative language which prima facie excludes the filing of suit against the Society or any of its officers in respect of any act touching the business of the Society and it is in consonance with the provisions contained in section 54 and section 70-A. But, thereafter an exception is provided which is to the effect that if after expiry of two months next after notice in writing has been delivered to the Registrar stating therein specifically the relief which a person claims and the Registrar does not initiate any arbitration proceedings then such inaction on the part of Registrar shall confer a right on aggrieved person to file a suit in the Court and the bar on the jurisdiction of the Court shall be lifted. Here it will be seen that when sections 54, 70 and 70-A are read together the wisdom of the legislature crystallises and we find that the intention of the legislature that the matter pertaining to the dispute touching the business of Society should normally and initially be referred to the Registrar and once the matter is referred and the Registrar initiates proceedings the jurisdiction of Courts is barred. However, if the Registrar fails, neglects or avoids to initiate proceedings, an aggrieved person shall serve a notice under section 70 and if Registrar initiates proceedings within a period of two months, the jurisdiction of the Court shall be barred and an aggrieved person shall have no right to institute a suit in the Court. Suit initiated if any shall be barred under section 70-A. Likewise if no notice under section 70 is delivered to the Registrar specifically stating the relief sought the suit shall not be maintainable."[Emphasis added].

1. I respectfully agree with the steps enumerated in Mst. Atia Khanum (Supra) and Abdul Salam Ansari (Supra) as reproduced in the excerpt herein above except as to the requirement of serving notice under Section 70 in case the Registrar fails, neglects or avoids to initiate proceedings upon referral of a dispute under Section 54 and to wait two months thereafter before filing a civil suit. With utmost respect, the difficulty in so reading the provisions of law under discussion is that no time period has been stipulated in the Cooperative Societies Act for the Registrar to initiate proceedings upon referral of a dispute under Section 54 nor any time period has been provided for resolution of such dispute. Thus it would be unclear as to how long a party is supposed to wait after referring a dispute under Section 54 to the Registrar before serving notice under Section 70.

2. The object of notice under Section 70 ibid has been discussed in Defence Housing Authority Lahore v. Messrs Builders and Developers (Pvt.) Ltd., 2015 SCMR 1799 and Mst. Nishat Ishaq v. Amjad Khan, 2014 CLC 71, wherein it was held that the object of delivery of notice under Section 70 and to make it mandatory is to provide the aggrieved parties in Cooperative Societies with an opportunity to resolve their disputes through the Registrar of the Society before resorting to formal litigation within the mandated two months' notice period. Thus, to the best of my understanding, when a dispute falling within the ambit of Section 54 is referred to the Registrar and the Registrar fails to initiate proceedings within two months, the party may file a civil suit without service of a fresh notice under Section 70 provided that the requirements of Section 70 are met by the complaint/petition/application/claim/notice issued under Section 54.

3. I am fortified in my view by the case of Zia-ur-Rehman Alvi v. Messrs Allahabad Cooperative Housing Society Limited, PLD 1995 Karachi 399 in which the plaintiff sent a criminal complaint to the Magistrate, First Class, Complaint Cell, Karachi (East) and dispatched copy to a Deputy Registrar of Cooperative Societies, Karachi with the endorsement that it be treated as a legal notice and thereafter instituted a suit. The defendant society filed an application under Order VII, Rule 11, C.P.C. seeking rejection of plaint for want of notice under Section 70 and suit being barred under Section 54 read with Section 70A of the Cooperative Societies Act. According to the plaintiff, however, the endorsement in the criminal complaint satisfied the requirement under Section 70 ibid. The Sindh High Court at Karachi observed that a plain reading of the section shows that the notice must state (i) cause of action; (ii) the name, description and place of residence of the plaintiff; and (iii) the relief which he claims. The Court evaluated the criminal complaint to determine whether it fulfilled the requirements of the aforesaid section and found that while it fulfilled the first and the second conditions but did not describe the reliefs claimed. The Court held that since the language of Section 70 makes it mandatory to serve notice, such notice cannot be treated as conforming with the law unless all prerequisites are mentioned therein. Regardless of the end result however, the point to be noted for purposes of the case at hand is that the Court did not reject the proposition that the criminal complaint endorsed to the Deputy Registrar could be treated as notice under Section 70 of the Cooperative Societies Act provided all conditions as stipulated thereunder are met.

4. Therefore, it must be seen whether the contents of Appellants/Plaintiffs Complaint dated 02-04-2012 meet the requirements of Section 70 of the Cooperative Societies Act or not. Perusal of the Complaint dated 02-04-2012 shows that though it has been written only by the Appellant/Plaintiff No. 1 it is in respect of both the Subject Plots and provides the cause of action as well as the relief claimed. It also provides the name and address of the Appellant/Plaintiff No. 1 therefore all relevant particulars were given in respect thereof however such particulars regarding the Appellant/Plaintiff No. 2 are missing.

5. I also agree with Zia-ur-Rehman Alvi (Supra) that the provision of Section 70 of the Cooperative Societies Act must be strictly construed. This is because but for the notice under Section 70 a suit in respect of a dispute falling within the ambit of Section 54 is expressly barred under Section 70A. Since Section 70 provides an exception it must therefore be strictly adhered to. In view thereof, in my opinion the name of the Appellant/Plaintiff No. 2 was liable to be struck off under Order I, Rule 10, C.P.C. and/or the Subject Suit was liable to be dismissed to the extent of the Appellant/Plaintiff No. 2 for failure to serve the mandatory notice under Section 70 of the Cooperative Societies Act prior to instituting the Subject Suit.

6. Coming back to the Appellant/Plaintiff No.1, the Subject Suit was instituted before the learned Trial Court on 10-11-2012, which was seven months after the Complaint dated 02-04-2014 i.e., well over the two month period as stipulated in Section 70 of the Cooperative Societies Act. The Appellants/Plaintiffs stated in paragraph 11 of the plaint filed in the Subject Suit that the matter was reported to the Respondents/Defendants Nos.2 and 3 but that they did not fulfill their obligations. Hence, the Appellant/Plaintiff No. 1's Complaint dated 02-04-2014 whereby the matter was referred to the Respondent/ Defendant No. 2 was in compliance of all the requirements under Section 70 of the Cooperative Societies Act. As such there was no bar on the learned Trial Court under Sections 54, 70, and 70-A of the Cooperative Societies Act to exercise jurisdiction in respect of the Subject Suit to the extent of the Appellant/Plaintiff No. 1 and the plaint was not liable to be rejected under Order VII, Rule 11, C.P.C.

7. Having said that there is yet another aspect of the case. As mentioned above, Exhibit P15 shows that the Respondent/Defendant No.3 eventually issued Notification dated 04-04-2017 in exercise of the powers under Section 54 of the Cooperative Societies read with Rule 33 of the Cooperative Societies Rules, 1927 and appointed the Assistant Commissioner (Sectt) ICT, Islamabad as the Registrar's nominee to decide the case within 60 days. The Complaint was decided vide Order dated 28.04.2017 (produced as part of Ex.P15) in favour of the Appellants/Plaintiffs ex-parte.

8. The Appellants/Plaintiffs have filed additional documents in the instant appeal as C.M. 152/2023. The additional documents produced by the Appellants/Plaintiffs show that the Respondent/Defendant No.1 filed an appeal under Section 56 of the Cooperative Societies Act which according to the Appellants/Plaintiffs was time barred. Nevertheless the matter was remanded by the Respondent/Defendant No.2 vide Order dated 06.07.2017. After remand the Assistant Commissioner (Sectt) ICT, Islamabad decided the matter in favour of the Appellants/Plaintiffs yet once again by Order dated 24.10.2017 and directed the Respondent/Defendant No.1 to give back the Plots originally allotted to the Appellants/Plaintiffs. The Appellants/Plaintiffs has stated in the C.M. that they were asked by the Registrar's nominee to return the Order dated 24.10.2017 and that he tore the same upon return and fixed the matter for arbitration on 21.11.2017. In any event, in the meantime, the Additional Deputy Commissioner (East) ICT Islamabad was appointed as the Registrar's nominee vide Notification dated 15.11.2017, who passed Order dated 19.02.2018 directing the Respondent/Defendant No.1 to restore the Subject Plots to the Appellants/Plaintiffs once all the outstanding dues have been paid by them and in case the same plots are not available then to adjust the Appellants/Plaintiffs with plots having same market value. The Appellants/Plaintiffs challenged the said Order dated 19.02.2018 vide W.P. No.2389/2022 before this Court which was later dismissed as withdrawn vide Order dated 27.06.2022.

9. Thus the aforementioned additional documents reflect that the Respondent/Defendant No.2 had already passed order dated 19.02.2018 prior to passage of the Impugned Judgment dated 15-09-2018 passed by the learned Trial Court. Order XLI, Rule 27 (1), C.P.C. provides that parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate court but the appellate court may, inter alia, allow such evidence or document to be produced for the reasons stated in clauses (a) or (b) thereof including for any substantial cause. It is the appellate court who is the sole judge to decide whether or not additional evidence may be allowed to be produced to enable the appellate court to pronounce judgment or for any other substantial cause as the need for additional evidence must be felt by the appellate court itself.

10. In my view this Court cannot shut its eyes to such additional evidence and decide the instant appeal in ignorance thereof as such approach will most certainly give rise to multiplicity of litigation. The foregoing is substantial enough cause to allow production of such additional documents in order to enable this Court to pronounce an effective judgment that puts an end to further litigation.

11. Before I factor in such additional evidence it is important to recall that in the instant case the Appellant/Plaintiff No. 1 initially referred his dispute with the Respondent/Defendant No. 1 to the Respondent/Defendant No. 2 as mandated by Section 54 of the Cooperative Societies Act. The Respondent/Defendant No. 2's failure to initiate action led the Appellant/Plaintiff No. 1 to the filing of the Subject Suit. In such circumstances, when the Respondent No. 3 appointed Respondent/Defendant No. 2's nominee, the Appellant/Plaintiff No. 1 should have either withdrawn the Subject Suit or not proceeded before the Respondent/Defendant No. 2's nominee. Yet it is evident that proceedings pursuant to Section 54 of the Cooperative Societies Act were progressing in parallel to the Subject Suit before the learned Trial Court without objection from any of the parties concerned before either forum. Resultantly an order has been passed by the Respondent/Defendant No. 2's nominee whereas the Impugned Judgment was passed by the learned Trial Court subsequently and both decisions are in conflict with each other.

12. The doctrine of election is well entrenched in our jurisprudence which has been explained by the Supreme Court in Chief Executive Officer NGCL, GENCO-III, TPS Muzafargarrah v. Khalid Umar Tariq Imran and others, 2024 SCMR 518 as follows:

2024 M L D 1976

[Islamabad]

Before Arbab Muhammad Tahir, J

Muhammad Shoaib Shaheen---Appellant

Versus

Returning Officer NA-46 and another---Respondents

Election Appeals Nos. 01, 02 and 03 of 2024, decided on 3rd January, 2024.

Elections Act (XXXIII of 2017)---

----Ss.60, 62 & 63--- Constitution of Pakistan, Art. 62(1)(f)--- Rejecting of nomination papers---Default in Government dues---Righteous and sagacious--- Declaration of disqualification--- Appellant/candidate was aggrieved of rejecting of his nomination papers by Returning Officer for default in government dues and disqualification under Art.62(1)(f) of the Constitution--- Validity--- Bill of property tax available on record revealed that the same was issued in the name of some lady--- Nothing was available on record through which it could be ascertained that appellant/candidate was in knowledge of notice at the time or prior to filing of his nomination papers or that any notice was issued to appellant/candidate requiring him to deposit amount due and such mischief constituted willful default on his part--- Even if it was considered a defect of substantial nature in terms of proviso to section 60(9)(ii) of Elections Act, 2017, such default could be remedied forthwith by directing appellant/candidate to deposit the same and produce receipt thereof--- Order passed by Returning Officer lacked mandatory reasoning as to why he opted not to exercise his discretion by affording opportunity to appellant/candidate to remove defect, even if determined to be of a substantial nature--- In absence of a declaration by a 'Court of law' against appellant/candidate, findings/conclusion of Returning Officer to such effect was restricted to authority vested in him in terms of S.62 of Elections Act, 2017 and not beyond that--- Returning Officer was not vested with any authority to issue declaration of disqualification against a candidate in terms of Art.62(1)(f) of the Constitution--- High Court set aside order passed by Returning Officer as the deficiency had already been removed by depositing outstanding dues forthwith and nomination papers of appellant/candidate were accepted--- Appeal was allowed accordingly.

Yasir Aftab v. Irfan Gull and others 2023 SCMR 206; Rai Hassan Nawaz v. Election of Pakistan and others 2013 CLC 1101; Syed Shafqat Hussain Shah v. Returning Officer and others 2019 YLR 643; Anwar Zeb v. The Returning Officer, and other 2022 MLD 1951; Hameed Akbar Khan v. Election Appellate Tribunal and others PLD 2013 Lahore 548; Murad Bux v. Kareem Bux and others 2016 SCMR 2042; Sheikh Muhammad Akram v. Abdul Ghafoor and others 2016 SCMR 733; Muhammad Masood ul Hassan v. Election Appellate Tribunal and others 2019 CLC 130; Malik Taj Ahmad v. Malik Muhammad Nawaz, Member of Provincial Assembly (MPA), Punjab and others PLD 2018 Lahore 723; Shamona Badhshah Qaisarani v. Election Tribunal, Multan and others 2021 SCMR 988; Khawaja Muhammad Asif v. Muhammad Usman Dar 2018 SCMR 2128 and Imran Ahmed Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister's House, Islamabad and 9 others PLD 2017 SC 265 rel.

Petitioner in person with Sardar Masroof Khan, Ansar Mehmood Kiyani, Ms. Amna Ali and Nasir Saleem.

Ms. Saman Mamoon, Legal Advisor and Zaighan Anees, Law Officer, ECP.

order

Arbab Muhammad Tahir, J.---The listed three appeals filed by the appellant under section 63(1) of the Elections Act, 2017 ('Act of 2017') entail common questions of law and facts, therefore, being decided through this single judgment.

1. Tersely, relevant facts leading to filing of the subject appeals are that nominationpapers of the appellant Muhammad Shoaib Shaheen for contesting General Elections, 2024 from three constituencies i.e. NA-46, NA-47 and NA-48 Islamabad were rejected by the Returning Officer vide separate orders dated i.e. 30.12.2023 in following terms:-

NA-46 Islamabad

"It is clear that Mr. Shoaib Shaheen is defaulter of property Tax under the constitutional and statutory framework duly attested and interpreted by the Honorable Superior Courts. Hence, I have no option but to reject the nomination papers of Mr. Shoaib Shaheen."

NA-47 Islamabad

"Mr. Muhammad Shoaib Shaheen is a defaulter having liability towards Capital Development Authority/MCI while filing nomination papers. Hence, Mr. Muhammad Shoaib Shaheen is ineligible to contest the Elections in terms of Section 62(9) of the Act."

NA-48 Islamabad

Under the attending circumstances, it has been duly established that Mr. Muhammad Shoaib Shaheen is defaulter and failed to disclose his dues, liability towards Capital Development Authority /MCI while filing nomination papers for contesting on NA-48 ICT-III. Hence, Mr. Muhammad Shoaib Shaheen cannot be deemed sagacious, righteous and non-profligate, honest, ameen as warranted under-Article 62(1((f) of the Constitution read with Section 173 of the Elections Act, 2017. Therefore, under section 62(9) of the Act, the nomination papers of Mr. Muhammad Shoaib Shaheen are hereby rejected."

1. The appellant contends that his case in no way can be termed to be one of willful default; the liability is not directly related to the appellant; the property against which the dues were outstanding is not owned by the appellant, rather the same is awned by one Musarrat Khatoon; soon after receiving information relating to the unpaid property tax, the appellant forthwith, deposited the outstanding dues/tax; to declare a candidate a willful defaulter is beyond the mandate of the Returning Officer in absence of any declaration or decree in this respect by a competent forum; that even otherwise, nomination papers of the appellant could not have been rejected in view of Section 62(10) of the Act of 2017 and that under the law, Returning Officer, can direct to make good the deficient'y even in case of a substantial nature of defect; the Returning Officer was not competent to issue declaration under Article 62(1)(f) of the Constitution; he placed reliance upon case law reported as "Yasir Aftab v. Irfan Gull and others, (2023 SCMR 206), "Rai Hassan Nawaz v. Election of Pakistan and others" (2013 CLC 1101), "Syed Shafqat Hussain Shah v. Returning Officer and others" (2019 YLR 643 Sindh) and "Anwar Zeb v. The Returning Officer, and others" (2022 MLD 1951 Sindh).

2. On the other hand, learned Law Officer ECP submits that by the attending circumstances of the case, it has become an admitted position that the appellant committed default in clearing outstanding dues as he himself deposited the same on the day, fixed for scrutiny of documents; that case of the appellant squarely falls within the ambit of Article 62(1) (f) of the Constitution besides Section 173 of the Act of 2017, therefore, appeals are liable to be dismissed. Reliance is placed upon case law reported as "Hameed Akbar Khan v. Election Appellate Tribunal and others" (PLD 2013 Lahore 548).

3. Heard, record perused.

4. The primary question that requires determination is as to whether non-deposit of the government dues/tax well within time and non-disclosure of said liability in nomination papers can be made basis to reject nomination papers of the appellate by treating it as a defect, substantial in nature, not curable. Furthermore, in order to examine whether the course adopted by the Returning Officer in rejecting nomination papers of the appellant was in accordance with law, it is of paramount importance to understand the true import of clause (ii) of the proviso to subsection (9) of section 62 of the Elections Act, 2017. In the case in hand, the judgment of the Supreme Court rendered in the case titled 'Yasir Aftab v. Irfan Gull and others' (2023 SCMR 206) is "relevant. The subject matter in the referred case was rejection of nomination papers of candidate for a seat of general counclor. The Supreme Court of Pakistan in the reeferfed case interpreted clause (ii) of the proviso to Rule 18(3) of the Sindh Local Councils (Elections) Rules, 2015. The said provision is reproduced below:

"(ii) The Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may'allow such defect to be remedied forth with".

In the case in hand, clause (ii) of the proviso to subsection (9) of section 62 of the Elections Act, 2017 is relevant, which is reproduced below.-

"(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral role and other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries with the electoral role".

1. The above reproduced two provisions are pari material insofar as placing restriction upon the authority of the Returning Officer in rejecting a nomination papers on the ground of any defect which is not of a substantial nature. The Returning Officer is, however, empowered to allow such defect to be remedied forthwith. The Supreme Court in Yasir Aftab's case, supra, has dealt with the words "substantial nature" used in clause (ii) of the proviso to Rule 18(3) (ii) of the Sindh Local Councils (Elections) Rules, 2015, which are pari materia with the provisions of clause (ii) of the proviso to section 62(9) of the Act of 2017, as follows.-

"This brings us to the second step of the exercise. If the Returning Officer concludes that the defect is of a substantial nature, what then? This requires a consideration of the last part of the provision: "and may allow such defect to be remedied forthwith". This portion confers discretion on the Returning Officer: he may (or may not) allow "such" defect to be "remedied forthwith". Which is the defect to which the last portion applies? The immediate response would seemingly be that it refers to the defect that is not of a substantial nature. However, this conclusion poses a problem. The discretion Conferred on the Returning Officer would then clash with the mandatory manner in which the provision opens. For, the Returning Officer in his discretion refuses to allow the defect to be remedied (forthwith) then the result would be that defect would remain. The nomination papers would then have to be rejected. But that is made impermissible by the imperative nature of the opening words: the Returning Officer "shall not reject a nomination paper". It is of course possible to read the "may" at the end also as "shall", i.e., that the Returning Officer has no discretion. But the same result would have obtained in any case if the provision had ended on the words "substantial nature". Why then does the provision contain the concluding words now under consideration? This leads to a second, though less intuitive, possibility: the "such" preceding the "defect" refers not to a defect that is not of a substantial nature but to one that is determined to be of a substantial nature. In other words, even if the determination is against the candidate in this regard, the Returning Officer is conferred discretion in allowing him to remedy the substantial defect, provided always that it can be done forthwith. The candidate of course cannot claim this as of right or in mandatory terms it is for the Returning Officer to exercise his discretion in this regard."

1. In light of the above principles and law, the Returning Officer is required to undergo two-step exercise, at first; he has to determine whether the defect is of a substantial nature? A negative answer to this question would conclude the exercise and he is bound not to reject the nomination papers. If the answer is in the affirmative, then the matter moves to the second stage. He must, in his discretion, consider whether, to allow the defect to be removed (even if it of a substantial nature as long as the same can be remedied 'forthwith). If he exercises his discretion in favour of the candidate and the defect is remedied forthwith, nomination papers stand accepted. In the event the Returning Officer refuses to exercise his discretion in matter of a defect determined to be of substantial nature, then of-course nomination papers stand rejected. The Supreme Court in Yasir Aftab's case, supra, further held that whatever the action of the Returning Officer will be, it is mandatory for him to record reasons appropriately and accordingly, in relation (as the case may be) to both stages of the exercise of authority. As noted above, the Returning Officer can allow a candidate to make good the deficiency/defect of a substantial nature, provided it can be remedied forthwith and in case the Returning Officer is not inclined to exercise its discretion in favour of the candidate it then becomes mandatory for him to give appropriate reasons for not exercising discretion in favour of the dandidate.

2. The Hon'ble Supreme Court in the case titled "Murad Bux v. Kareem Bux and others" (2016 SCMR 2042) has held that where the explanation of a party contesting the election is plausible in regard to non-disclosure of any fact in the affidavit, it cannot be denied the right to contest elections. However, if the party has willfully made a false and or incorrect statement in the affidavit sworn in with the nomination paper concealing material particulars in order to avoid disqualification, then the Tribunal would not travel deeper into the explanation, once it is established that the disclosure of such material particulars would have exposed him to disqualification. It was further held that if non-disclosure about pendency of a criminal case has been made, however, the petitioner has offered a reasonably plausible explanation, then the affidavit could not be considered as false or incorrect declaration. In the case titled "Sheikh Muhammad Akram v. Abdul Ghafoor and others" (2016 SCMR 733), it has been held that a candidate is not disqualified to contest elections merely because a criminal case is pending against him. Non-disclosure of a pending case cannot be equated with the non-disclosure of a criminal case in which a person has been convicted and one which may entail his disquali. It is also important to refer to the judgment of Lahore High Court in the case titled "Muhammad Masood ul Hassan v. Election Appellate Tribunal and others" (2019 CLC 130) wherein it has been held that the relevant clause of the affidavit submitted along with the nomination papers requires information regarding pending cases of criminal offences. An FIR by its very nature cannot be termed as a pending criminal case. The Lahore High Court held that by not mentioning the details of FIRs in the affidavit, the candidate was not guilty of mis-declaration.

3. The Lahore High Court in the case titled "Malik Taj Ahmad v. Malik Muhammad Nawaz, Member of Provincial Assembly (MPA), Punjab and others" (PLD 2018 Lahore 723) has held that it is evident from the above that a non-disclosure sans an element of design, scheme or intent would also not make a candidature open to be questioned if it could be shown that it was a bona fide error and that there was no intention to gain any benefit by withholding such information from the constituents. The scrutiny for the purposes of Article 62(1)(f) of the Constitution is not based on moralistic or subjective criterion. The said condition does not contemplate perfection but in simple words requires a person to be honest, reliable and trustworthy.

4. The Supreme Court in the case titled "Shamona Badhshah Qaisarani v. Election Tribunal, Multan and others" (2021 SCMR 988) has held that every non-disclosure or mis-declaration would not be sufficient enough to permanently disqualify a member of the Parliament or a candidate. The purpose and intention needs to be seen behind the non-disclosure or mis-declaration. The returned candidate would be disqualified only when if he/she has dishonestly acquired assets and is hiding them to derive certain benefits. If the non-disclosure or mis-declaration is such that it gives an illegal advantage to a candidate then it would lead to termination of his candidature. This Court in the case of Khawaja Muhammad Asif v. Muhammad Usman Dar (2018 SCMR 2128) has candidly held that merely the fact that a candidate has not declared an asset in the nomination papers would not end in his disqualification but it has to be seen whether the act of non-disclosure of the asset is with dishonest intent or not and only if there is dishonest intent behind the non-disclosure the candidate would be disqualified. It is the credibility of the explanation that would be the determining factor as to whether non-disclosure of an asset carries with it the element of dishonesty or not.

5. It divulges from the pleadings of the appeals in hand that the dues in terms of property tax were outstanding against one Musarrat Khatoon pertaining to the year 2022-2023. The bill of said property tax available on record reveals that the same was issued in the name one Musarrat Khatoon. Nothing is available on record through which it could be ascertained that the appellant was in the knowledge of said notice at the time or prior to filing of his nomination papers or that any notice was issued to the appellant requiring him to deposit the amount due and that the mischief, constitutes willful default on his part. Therefore, even if it is considered a defect of substantial nature in terms of the clause (ii) of the proviso to section 60(9), it can be remedied forthwith by directing the appellant to deposit the same and produce receipt thereof. The impugned order, on the face of it, lacks mandatory reasoning as to why the Returning Officer opted not to exercise his discretion by affording an opportunity to the appellant to remove the defect, even if determined to be of a substantial nature.

6. Section 62(10) of the Act of 2017 prohibits the Returning Officer from rejecting nomination papers of a candidate who deposits any amount of loan, tax or government dues and utility expenses payable by him of which he was unaware at the time of filing his nomination papers. Subsection (10) of section 62, therefore, covers a situation where the candidate had already filed nomination papers and was not in the knowledge of any outstanding government dues/taxes. It, therefore;ousts any possibility of instantaneous rejection of nomination papers, in case it is established that the default in payment of government dues/taxes was not willful or not in the knowledge of the candidate before submission of nomination papers. The Returning Officer is "bound" to afford opportunity to the candidate to remove the deficiency, inter alia, by allowing him to deposit the outstanding dues forthwith. The Returning Officer failed to correctly appreciate the provisions of section 62(9) read with 62(10) of the Act of 2017 and proceeded in a slipshod manner by rejecting the nomination papers of the appellant.

2024 M L D 2019

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Mst. Liaba Rauf---Appellant

Versus

Pakistan Medical and Dental Council through President and 3 others---Respondents

Writ Petition No. 3447 of 2023, decided on 8th December 2023.

(a) Pakistan Medical and Dental Council Act 2022 (IV of 2023)---

----S.17(4)---Pakistan Medical Commission Act (XXXIII of 2020), Ss. 40 & 8 (2)(f)---Pakistan Medical Commission Conduct of Examinations Regulations, 2021, Regln. 10(5)---Medical and Dental Colleges---Result of admission test---Period of validity---Vested right of passing candidate---Claim of the petitioner, candidate for Medical and Dental Colleges' Admission Test (MDCAT), was that at the time when she took MDCAT, Pakistan Medical Commission Conduct of Examinations Regulations, 2021 ('the Regulations 2021'), were in the field under which her result was to remain valid for two years and such a right could not have been taken away through a subsequent repeal of the said Regulations or through an administrative policy---Validity---Regulations 2021 were made by the Pakistan Medical and Dental Council (PM&DC) in exercise of powers conferred upon it under S.40 and subsection 2(f) of S.8 of the Pakistan Medical Commission Act, 2020 ('the PMC Act 2020')--- Regulation 10(5) of the 2021 Regulations, inter alia, provided that a person's MDCAT result shall be valid for a period of two years from the date of the exam---Petitioner appeared in the MDCAT-2022 on 13.11.2022, and subsequent to her passing the MDCAT, the Pakistan Medical and Dental Council Act, 2022(' the Act 2022 ')was enacted on 16.01.2023---Section 17(4) of the Act 2022, inter alia, provides that the MDCAT result shall be valid for three years---Term vested right must be a title to the present or future enjoyment of property, or to the present or future enforcement of a demand or a legal exemption from a demand made by another---Admittedly, the petitioner appeared in MDCAT exam held in November, 2022, when the Regulations 2021 were still in the field and under Regulation 10(5) of the said Regulations, result of MDCAT was valid for two years---Regulations 2021 having been made in exercise of power conferred under the statute were binding and could not have been given go-bye pursuant to an administrative decision---Therefore, sans the amendment in Regulation 10(5) of the Regulations 2021, the validity period of the MDCAT result could not have been reduced from two years to one session---High Court declared the petitioner's MDCAT-2022 result to be valid for two years---Constitutional petition was allowed with costs to be borne by the PM&DC.

Messrs Mardan Industries Ltd. v. Government of Pakistan PLD 1965 (W.P.) Pesh. 47 ref.

(b) General Clauses Act (X of 1897)---

----S. 6---Pakistan Medical and Dental Council Act 2022 (IV of 2023), Ss.17(4) & 51---Pakistan Medical Commission Act (XXXIII of 2020), Ss. 40 & 8 (2)(f)---Pakistan Medical Commission Conduct of Examinations Regulations, 2021---Repeal of an Act, effect of---Result of Medical and Dental Colleges' Admission Test---Period of validity---Vested right of passing candidate---Claim of the petitioner, candidate for Medical and Dental Colleges' Admission Test (MDCAT), was that at the time when she took MDCAT, Pakistan Medical Commission Conduct of Examinations Regulations, 2021 ('the Regulations 2021'), were in the field under which her result was to remain valid for two years and such a right could not have been taken away through a subsequent repeal of the said Regulations or through an administrative policy---Validity---Pakistan Medical Commission Act, 2020 ('the PMC Act 2020') was repealed under S.51 of the Act 2022 which is titled as "Repeals and Savings"---Provision under S.51(1) of Pakistan Medical and Dental Council Act 2022 ('the Act 2022') shows that the repeal of the PMC Act 2020 is subject to S.6(c) of the General Clauses Act, 1897---It appears that S.51(1) of the Act 2022 by legislative reference provides for the saving of the rights and liabilities which existed at the time of the repeal of the PMC Act 2020---Section 51(2), inter alia, provides for savings and validates all decisions taken and the regulations made pursuant to the PMC Act 2020 by the PM&DC---It is a principle of interpretation of statutes that in the absence of a stipulation to the contrary, any change in law affecting vested rights is to have prospective effect---After having passed the MDCAT a right had accrued in favour of the petitioner for the MDCAT result shall be valid for two years and since the said right was the creation of Regulations made under the statute it was a substantive and vested right which could not have been taken away without an express sanction of law---Section 17(4) of the Act 2022 also holds the MDCAT result to be valid for three years---Therefore, no inconsistency in said regard can be inferred between Regulation 10(5) of the Regulations 2021 and S.17(4) of the Act 2022---Therefore, the right of the petitioner that her MDCAT result shall remain valid for two years under the Regulations 2021 was a substantive right which was deemed to be saved under S.6 of the General Clauses Act, 1897 and could not have been taken away by the device of an administrative decision---High Court declared the petitioner's MDCAT 2022 result to be valid for two years---Constitutional petition was allowed with costs to be borne by the PM&DC.

F.B. Ali v. State PLD 1975 SC 506; Sutlej Cotton Mills Ltd. v. Industrial Court PLD 1966 SC 472; Shohrat Bano v. Ismail 1968 SCMR 574; P.I.A Corporation v. Pak Saaf Dry Cleaners PLD 1981 SC 553; Muhammad Ibrahim v. Surrayia-un-Nisa PLD 1992 SC 637 and Shahida Bibi v. Habib Bank Limited 2016 CLD 2025 ref.

Khaliq-ur-Rehman Saifi for the Petitioner.

Ms. Kashifa Niaz Awan for PM&DC.

order

Miangul Hassan Aurangzeb, J.---Through the instant writ petition, the petitioner, Mst. Liaba Rauf, has assailed public announcement regarding Medical and Dental Colleges, Admission Test ("MDCAT")-2023 dated 14.07.2023 issued by the Pakistan Medical and Dental Council ("PM&DC") in which it is mentioned that the results of MDCAT-2022 are no longer valid for seeking admission in Session-2023. She has also sought a direction to the effect that her application for admission should be allowed to be submitted online.

1. Learned counsel for the petitioner submitted that the petitioner participated in the MDCAT-2022 and passed by obtaining 170 out of 200 marks; that Regulation 10(5) of the Pakistan Medical Commission Conduct of Examinations Regulations, 2021 ("the 2021 Regulations") provided that a persones MDCAT result shall be valid for a period of two years from the date of the exam, and that if a person retakes the MDCAT exam during this period, the person may use the better result for applying to the Medical or Dental College for admission; that the petitioner did not apply for admission in MBBS soon after passing MDCAT-2022 because she wanted to improve her marks by retaking F.Sc examination; that Section 17(4) of the Pakistan Medical and Dental Council Act, 2022 ("the 2022 Act") provided inter alia that MDCAT shall be valid for a period of three years; and that the impugned public announcement is violative of Regulation 10(5) of the 2021 Regulations.

2. Learned counsel for the petitioner further submitted that Section 51(1) of the 2022 Act makes the repeal of the Pakistan Medical Commission Act, 2020 ("the PMC Act") subject to Section 6 of the General Clauses Act, 1897 which gives finality to actions already undertaken under the repealed enactment; and that an executive order cannot be given retrospective effect. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein. In support of his submissions, learned counsel for the petitioner placed reliance on the cases reported as PLD 2007 SC 52, 2015 CLC 500, 2017 SCMR 1787, 2018 SCMR 1885 and 2012 MLD 1635.

3. On the other hand, learned counsel for PM&DC submits that it was clearly written on the result for the petitioner's MDCAT-2022 that the said result will be valid only for admissions in sessions 2022-2023; that the PMC Act did not provide for the validity period of MDCAT result; that second proviso to Section 51(2) also provides that Regulations made under the PMC Act cannot be enforced; that the impugned public announcement was issued under the administrative policy of the PM&DC which is neither arbitrary nor violates the fundamental rights; and that such a policy decision having been made applicable across the board may not be interfered with in the process of judicial review. Learned counsel for PM&DC prayed for the writ petition to be dismissed. In support of her submissions, learned counsel for PM&DC relied on an unreported judgment dated 11.10.2023 passed by the Honeble Peshawar High Court in W.P.No.3094-P/2023.

4. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.

5. The essence of the petitioner's claim is that at the time when she took MDCAT, the 2021 Regulations were in the field under which her result was to remain valid for two years and such a right could not have been taken away through a subsequent repeal of the said Regulations or through an administrative policy. The 2021 Regulations were made by the PM&DC in exercise of powers conferred upon it under Section 40 and subsection 2(f) of Section 8 of the PMC Act.

6. Regulation 10(5) of the said 2021 Regulations provided as follows:-

"(5) A person's MDCAT result shall be valid for a period of two years from the date of the exam. If a person re takes the MDCAT exam during this period, the person may use the highest attained result to apply to medical or dental college."

1. The petitioner appeared in the MDCAT-2022 on 13.11.2022. Subsequent to her passing the MDCAT, the 2022 Act was enacted on 16.01.2023. The object and purpose of the said enactment mentioned in its preamble which reads as follows:-

"An Act to reconstitute the Medical and Dental Council in Pakistan

WHEREAS it is expedient to consolidate the law relating to the registration of medical practitioners and dentists and reconstitute the Medical and Dental Council in Pakistan in order to establish a uniform minimum standard of basic and higher qualifications in medicine and dentistry;"

1. Section 17(4) of the 2022 Act inter alia provides that the MDCAT result shall be valid for three years. Moreover, the PMC Act was repealed under Section 51 of the 2022 Act. The said Section 51 is titled as Repeals and Savings and its subsections (1), (2) and (3) provide as follows:-

"51. Repeals and Savings.---(1) Subject to section 6 of the General Clauses Act, 1897 (X of 1897), the Pakistan Medical Commission Act, 2020 (XXXIII of 2020) hereinafter referred to as the repealed Act, shall stand repealed.

(2) Notwithstanding the repeal of the repealed Act or anything contrary contained herein, all decisions taken, regulations made or amended and disciplinary actions taken by the Commission of the dissolved Pakistan Medical Commission pursuant to the repealed Act and by the Pakistan Medical Commission pursuant the shall be deemed to have been validity made:

Provided that all regulations made and promulgated pursuant to the repealed Act, stand repealed and shall not be enforceable:

Provided further that the Council shall have the exclusive power to review and modify saved decision taken, regulation made or amended and disciplinary action taken.

(3) The dissolved Pakistan Medical Commission as formed pursuant to the repealed Act stands dissolved upon the commencement of this Act..

1. A bare reading of Section 51(1) of the 2022 Act shows that the repeal of the PMC Act is subject to Section 6 of the General Clauses Act, 1897. In this regard, Section 6(c) of the General Clauses Act reads as follows:-

6. Effect of repeal. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not.

(a).....

(b) .....

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or...."

1. It appears that Section 51(1) of the 2022 Act by legislative reference provides for the saving of the rights and liabilities which existed at the time of the repeal of the PMC Act. Section 51(2) inter alia provides for savings and validates all decisions taken and the regulations made pursuant to the PMC Act by the PM&DC.

2. In the cases of F.B. Ali v. State (PLD 1975 SC 506), Sutlej Cotton Mills Ltd. v. Industrial Court (PLD 1966 SC 472), Shohrat Bano v. Ismail (1968 SCMR 574), P.I.A. Corporation v. Pak Saaf Dry Cleaners (PLD 1981 SC 553) and Muhammad Ibrahim v. Surrayia-un-Nisa (PLD 1992 SC 637), the Hon'ble Supreme Court laid down the principle of interpretation of statutes that in the absence of a stipulation to the contrary, any change in law affecting vested rights is to have prospective effect.

3. It is thus to be seen what constitutes a vested right. The term vested right has been explained in the case of Messrs Mardan Industries Ltd. v. Government of Pakistan (PLD 1965 (W.P.) Pesh. 47) as under:-

"It must be a title to the present or future enjoyment of property, or to the present or future enforcement of a demand or a legal exemption from a demand made by another."

2024 M L D 1

[Sindh]

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

Messrs LUCKY CEMENT LIMITED---Petitioner

Versus

The CHIEF MINISTER SINDH through Chief Secretary, Karachi

and 4 others---Respondents

Constitutional Petition No. D-1136 of 2015, decided on 17th October, 2022.

Sindh Excise Duty on Minerals (Labour Welfare) Act (VIII of 1967)---

----S. 3(1)--- Notification No. SOB/LAB/5-10/2011-12, dated 02.12.2014---Cess, imposing of---Minerals used as raw material---Petitioner company sought striking down of Notification No.SOB/LAB/ 5-10/2011-12, dated 02-12-2014---Contention of petitioner company was that prior notification assailed in an earlier case titled Sindh Secretary Health Department and others v. Dr. Nadeem Rizvi and others ('Nadeem Rizvi Case') reported as 2020 SCMR 1, could not have been struck down on the touchstone of case titled Messrs Mustafa Impex Karachi and others v. Government of Pakistan through Secretary Finance Islamabad, ('Mustafa Impex's Case') reported as PLD 2016 SC 808, unless the Court was of the view that the principle laid down in that case operated retrospectively---Validity---Contention of petitioner was of no avail as question of prospective or retrospective application was never debated nor argued in that decision---Judgment passed in Nadeem Rizvi's case could not be regarded as an authority on the point that dictum laid down in Mustafa Impex case would apply retrospectively---High Court followed the judgment of Supreme Court in case titled Pakistan Medical and Dental Council v. Muhammad Fahad Malik, reported as 2018 SCMR 1956, as done by Division Bench of High Court in Constitutional Petition No. D-756/17, titled S. M. Kaleem Makki v. Province of Sindh and others (unreported judgment)---High Court declined to accept the contention of retrospective application of Mustafa Impex case as the same was misconceived---Constitutional petition was dismissed, in circumstances.

Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Government of Sindh through Secretary Health Department and others v. Dr. Nadeem Rizvi and others 2020 SCMR 1 and Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S. Ct. 1917 (1989) ref.

Pakistan Medical and Dental Council v. Muhammad Fahad Malik 2018 SCMR 1956 and S. M. Kaleem Makki v. Province of Sindh and others Constitutional Petition No. D-756 of 2017 fol.

Taimur Ali Mirza for the Petitioner.

Sandeep Malani, Assistant Advocate General, Sindh for the Respondents.

2024 M L D 44

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

SAMIULLAH and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeals Nos. 68, 69, 71, 72, 76 and 77 of 2022, decided on 4th October, 2022.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Contradictions in statements of eye-witnesses---Accused were charged for making firing upon the police party with intention to commit their murder and to evade their arrest---Record showed that the complainant stated that the accused persons were firing upon them from both sides, out of which one of the fired bullets hit on the hood of the police mobile---Police Constable did not support such aspect of the story narrated by complainant and during examination-in-chief, he deposed that their police mobile received bullet on its body i.e. hood---Complainant during his examination-in-chief deposed that after the driver of the vehicle received firearm injury, he by leaving the car started running---Police Constable deposed that after bullet injury was received by the driver of vehicle, his car hit one motorcycle and stopped and the person sitting inside came out from the said car---Police Constable did not utter a single word that the injured person was trying to run away---Arrest of the accused persons as narrated by the prosecution was doubtful as complainant during cross-examination stated that firstly police party apprehended the first accused and then two remaining accused persons surrendered themselves immediately---Again complainant stated that one accused was arrested from outside the car and two accused persons were arrested from inside the car---Police Constable during the cross-examination stated that all three accused persons were apprehended from outside the car---From the said evidence of two important eye-witnesses of the prosecution, arrest of all three accused persons as well as injury received by accused had become doubtful---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Ocular account doubtful---Accused were charged for making firing upon the police party with intention to commit their murder and to evade their arrest---Evidence of prosecution witnesses showed that they all deposed that the accused received firearm injury on his chest---At the time of encounter as per evidence of Police Constable the police mobile was behind the car, thus it was not understandable as to how the accused received firearm injury on his chest---Not only that but it was the case of prosecution that accused received injury while sitting in the car but on inspection of the car no blood was recovered and such fact had also been admitted by witnesses during their cross-examination which created serious doubts about the encounter---Injured was taken to the hospital on the police mobile and the eye-witness also admitted that even from the police mobile blood was not recovered---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

Muhammad Hanif Qureshi for Appellants (in Special Criminal Anti-Terrorism Jail Appeals Nos. 68, 69, 71, 72, 76 and 77 of 2022).

Muhammad Iqbal Awan, Additional P.G. Sindh for the State (in Special Criminal Anti-Terrorism Jail Appeals Nos. 68, 69, 71, 72, 76 and 77 of 2022).

2024 M L D 66

[Sindh]

Before Muhammad Shafi Siddiqui, J

Messrs MULTIX INTERNATIONAL CORPORATION through Partner---Plaintiff

Versus

KARACHI METROPOLITAN CORPORATION through Administrator---Defendant

Suit No. 672 of 2022, decided on 19th October, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42& 54---Sindh Local Government Ordinance (XII of 1979), S. 45---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration and injunction---Interim injunction, refusal of---Slaughter house--- Extension of lease--- Investment over leased property---Plaintiffs sought extension in lease of slaughter house on the plea of investment made for improvements during 15 years of lease which had already expired---Validity---There was no clause of investment after 15 years which would give continuity to a revocability for any other period than described in lease agreement---Every structure was to be handed over, whether built by plaintiff or plaintiff occupying already constructed area---At the end of lease period, plea of investment could not come into play since 15 years were consumed by plaintiff, which was a huge period for recovery of such investment, if made, and it was not the responsibility of defendant as per agreement---It was not a grant in perpetuity and only if parties to contract agreed, lease could be extended---Plaintiff had no prima facie case nor balance of convenience was in its favour and no irreparable loss would be caused in case injunction was declined---High Court refused to grant interim injunction in favor of plaintiff---Application was dismissed, in circumstances.

Haider Waheed along with Munim Masood for Plaintiff.

Waleed Khanzada along with Mohsin Khan for Defendant.

2024 M L D 110

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mubeen Lakho, JJ

NAWAB alias THARO GADANI and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-61 and Confirmation Case No. 11 of 2021, decided on 16th November, 2022.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Motive not proved---Accused were charged for committing murder of father and maternal uncle of the complainant by firing---Old enmity between the deceased and the accused was stated to be motive behind the occurrence---Record showed that prosecution succeeded to prove its case against the accused persons for the reasons that the occurrence in the case had taken place in broad daylight at 11:00 a.m.---Eye-witnesses had explained their presence at the time of incident---Ocular evidence was supported by the medical evidence---Delay in lodging of FIR had been fully explained---Parties were known to each other---Despite lengthy cross-examination, not a single major contradiction had been brought on record---Complainant, in his evidence had deposed that absconding accused used to say that due to old enmity he would kill his father---According to the FIR, motive was against absconding accused---On the conclusion of trial, circumstance of the specific motive was not put to the accused persons in their statements under S. 342. Cr.P.C, for their explanation---Finding of the Trial Court regarding motive were against the record---Complainant in his FIR and in evidence before Trial Court attributed motive against absconding accused---Appeal against conviction was dismissed, however, the sentence of death of the accused was reduced to imprisonment for life, in circumstances.

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

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

----S. 302(b)--- Qatl-i-amd---Sentence, reduction in---Motive not proved---If prosecution asserts a motive in the FIR but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder.

Rukhsar Ahmed Junejo and Aisha Saeed for Appellants.

Ubedullah Ghoto for the Complainant.

Zulfiqar Ali Jatoi, Additional Prosecutor General for the State.

2024 M L D 134

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

ABDULLAH and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal Nos. 199, 205 and Criminal Anti-Terrorism Jail Appeal No. 212 of 2020, decided on 2nd March, 2022.

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

----Ss. 324, 353, 186 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---General allegations---Common intention not established---Prosecution case was that an encounter took place between the police and four assailants, due to which, one of the accused received a firearm injury on his left shoulder---Record showed that allegations levelled against the accused "A" were collective, i.e. that the four assailants attacked upon the police party---Only general allegations surfaced after a perusal of the testimonies of the witnesses as well and nothing was brought on record to establish a solid role played by the present accused in the commission of the offence---Present accused was empty handed when he was apprehended and prosecution failed to prove that he had any connection whatsoever with the other assailants who had attacked upon the police party---Mere presence of an accused person at the place of incident could never be sufficient to establish that said accused shared common intention in the commission of an offence unless evidence was brought on record to prove so---Circumstances established that the prosecution had failed to discharge its burden against the said accused beyond reasonable shadow of doubt---Appeal against conviction against the said accused was accordingly allowed.

Tariq Pervaiz v. The State 1995 SCMR 1345; Asmatullah and others v. The State 2018 PCr.LJ 1042; Muhammad Tufail v. The State 2017 SCMR 1845 and Asif and another v. The State 2020 SCMR 610 ref.

Hassan v. The State 1969 SCMR 454 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

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

----Ss. 324, 353, 186 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence--- Recovery of weapons---Reliance---Prosecution case was that an encounter took place between the police and four assailants, due to which, one of the accused received a firearm injury on his left shoulder---In the present case, the allegations against accused persons "F" & "Y" were that they had actively participated in the attack on the police party and they were arrested on the spot and police recovered a .30 bore pistol each from their possession---Complainant had recovered a total of 4 empties of the same bore as the pistols recovered from the present accused persons---In the absence of a solid ocular account entailing a specific role for each assailant, the only pieces of evidence available were circumstantial evidence---Incriminating piece of evidence available against the accused "F" and "Y" was the recovery of the weapons itself---Putting FIRs in juxtaposition with the Forensic Science Laboratory Report, showed that the relevant weapons recovered from the said accused persons had rubbed numbers---Said fact was mentioned in the FIR, the memo of recovery and in the Forensic Science Laboratory Report, which to an extent suggested that the weapons originally recovered from the said accused persons were the same which later on were received by the Forensic Laboratory---Thus, it had been proved that the accused "F" and "Y" had in fact shot their 30 bore pistols at the place of incident---As such, the elements of S. 353, P.P.C, were satisfied along with S. 23(i)(a) of the Sindh Arms Act 2013---In such circumstances, the conviction of present accused persons under S. 353, P.P.C and under S. 23(i)(a) of the Sindh Arms Act, 2013 were maintained with modification in the sentence awarded to them which was converted to one already undergone by them.

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

(c) Criminal trial---

----Circumstantial evidence---Scope---Circumstances of the case should make an unbroken chain of events which on one end leads to the body of the crime and the other to the neck of the culprit.

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

----Ss. 324, 353, 186 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Conviction under S. 324, P.P.C. set aside---Prosecution case was that an encounter took place between the police and four assailants, due to which, one of the accused received a firearm injury on his left shoulder---In the present case, the allegations accused persons "F" & "Y" were that they had actively participated in the attack on the police party and they were arrested on the spot and police recovered a .30 bore pistol each from their possession---Complainant in his cross-examination had admitted that when he had stopped the accused persons they instead of stopping had started aerial firing---Thus, it hardly appeared rational to believe that someone looking to commit another person's murder would fire aerially rather than shooting directly at them---As such, S. 324, P.P.C., was not applicable in the circumstances---Conviction under S. 324, P.P.C, was set-aside, in circumstances.

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

----Ss. 324, 353, 186 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Minor contradictions---Inconsequential---Prosecution case was that an encounter took place between the police and four assailants, due to which, one of the accused received a firearm injury on his left shoulder---In the present case, the allegations accused persons "F" & "Y" were that they had actively participated in the attack on the police party and they were arrested on the spot and police recovered a .30 bore pistol each from their possession---Evidence of all the witnesses was consistent on all material particulars of the case---Although there were minor contradictions in the evidence of the witnesses, the same were not material and certainly not of such materiality so as to affect the prosecution case---Defence could not point out any material discrepancy in the evidence of the eye-witnesses besides the few minor ones like the registration number of the police mobile which appeared as a typographical error and found proper mentioning in the letter sent to the Forensic Science Laboratory Examiner---Circumstances established that the prosecution succeeded in proving its case against the said accused under S. 353, P.P.C, therefore, conviction of said accused persons under S. 353, P.P.C and under S. 23(1)(a) of the Sindh Arms Act, 2013 were maintained with modification in the sentence awarded to them which was converted to one already undergone by them, whereas the remaining convictions were set aside.

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

----Ss. 324, 353, 186 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Act alleged not an act of terrorism---Conviction under S. 7 of Anti-Terrorism Act, 1997 set aside---Prosecution case was that an encounter took place between the police and four assailants, due to which, one of the accused received a firearm injury on his left shoulder---Allegations accused persons "F" & "Y" were that they had actively participated in the attack on the police party and they were arrested on the spot and police recovered a .30 bore pistol each from their possession---As far as the conviction of the present accused under S. 7 of the Anti-Terrorism Act wass concerned, suffice it to say that the same could not be sustained---All acts mentioned under subsection (2) of S. 6 of the Anti-Terrorism Act, 1997, if committed with design/motive to intimidate the government, public or a segment of the society, or alternatively where evidence had been collected by the prosecution to suggest that the aforesaid aim was either achieved or otherwise appeared as a by-product of the said terrorist activities were to be dealt with under the Anti-Terrorism Act, 1997---Nothing was brought on record of present case to suggest that the present accused persons possessed the intention, design or purpose to cause terror to any part of the society---Thus, the alleged offence could not be equated with terrorism---In such circumstances, the conviction under S. 7, Anti-Terrorism Act, 1997, was set-aside.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61; Ali Gohar and others v. Pervez Ahmed and others PLD 2020 SC 427 and Muhammad Farhan alias Irfan v. The State 2021 SCMR 488 rel.

Habib-ur-Rehman Jiskani for Appellant (in Special Criminal Anti-Terrorism Jail Appeal Nos. 199, 205 and Criminal Anti-Terrorism Jail Appeal No. 212 of 2020).

Abrar Ali Khichchi, Additional Prosecutor General Sindh for the State (in Special Criminal Anti-Terrorism Jail Appeal Nos. 199, 205 and Criminal Anti-Terrorism Jail Appeal No. 212 of 2020).

2024 M L D 161

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

Sheikh RIZWAN AHMED JILLANI---Appellant

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Director General---Respondent

Criminal Accountability Appeal No. 21 of 2017, decided on 18th November, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a), 10 & 32---Criminal Procedure Code (V of 1898), S. 431---Corruption and corrupt practices---Appreciation of evidence---Death of accused---Appeal, status of---Accused was convicted by Trial Court and sentenced to imprisonment and fine---Accused died during pendency of appeal and his widow appeared to contest sentence of fine imposed on deceased accused---Validity---On death of accused during pendency of appeal against conviction, appeal finally abated, except an appeal from sentence of fine---Legal heir/widow of deceased accused challenged conviction against deceased accused to the extent of sentence of fine---Bank statements were not sent to handwriting expert---Deceased accused was posted as typist in the Bank and there was no office order to show that deceased was working as ledger keeper in the Bank---Bank statement with effect from 01-02-1999 till year 2003, were fake and contained signatures of deceased accused---Deceased accused was transferred from concerned branch of bank to another branch on 4.9.2001 and it was not possible for deceased accused to prepare Bank statements for the period for which he was not posted in branch in question---Prosecution failed to prove its case against deceased accused at trial---Such was case of acquittal against deceased accused but as accused had already expired proceedings against him stood abated---High Court set aside sentence of fine imposed by Trial Court---Appeal was allowed accordingly.

Sheikh Iqbal Azam Farooqui through his legal heirs v. The State through Chairman NAB 2020 SCMR 359 fol.

Matloob Hussain for Appellant.

Riaz Alam, Special Prosecutor NAB for Respondent.

2024 M L D 197

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

MUHAMMAD NADEEM---Appellant

Versus

The STATE and others---Respondents

Criminal Acquittal Appeals Nos. D-148 and D-214 of 2019, decided on 18th November, 2022.

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

----Ss. 302(b), 337-H(2), 337-L(2) & 34---Criminal Procedure Code (V of 1898), S. 417(2)---Qatl-i-amd, rash and negligent act, causing hurt, common intention--- Appreciation of evidence---Appeal against acquittal--- Benefit of doubt--- Implication through supplementary statement---Accused were charged that they made firing upon the complainant party, due to which two persons were hit, out of which one died---Record showed that neither names of accused persons were mentioned in the FIR nor their features had been given and they were introduced by complainant and witnesses in their further statements without disclosing the source of information---Said improvements clearly showed that supplementary statement was made after due consultation and deliberation to falsely involve the accused---Complainant had lodged FIR with consultation and due deliberation and the names of accused/respondents did not transpire therein, hence, the credibility of further statement of complainant in this case did not arise at all---To sustain conviction in an offence of capital punishment, evidence of unimpeachable nature was required which was not available in this case---Prosecution failed to produce reliable evidence before Trial Court---Trial Court for sound reasons disbelieved prosecution evidence---Several circumstances were present in the case which created reasonable doubt in the prosecution case---In cases of circumstantial evidence strong evidence was required for convicting the accused, which was lacking in this case---Even complainant party had failed to prove any sinister motive against accused/respondents to strengthen his case---Circumstances established that the acquittal recorded by Trial Court in favour of respondents/accused in impugned judgment was based upon sound reasons, which required no interference---Appeals against acquittal being without merits were dismissed, in circumstances.

Muhammad Rafique and others v. The State and others 2010 SCMR 385 rel.

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

----S. 417---Appeal against acquittal---Interference---Scope---Judgment of acquittal is not to be interjected until findings are perverse, arbitrary, speculative and ridiculous.

(c) Appeal against acquittal---

----Double presumption of innocence---Interference---Scope---Scope of interference in appeal against acquittal is narrow and limited because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence that an accused shall be presumed to be innocent until proved guilty---In an acquittal the presumption of innocence is doubled.

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

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

----Ss. 302(b), 337-H(2), 337-L(2) & 34---Criminal Procedure Code (V of 1898), S. 417(2)---Qatl-i-amd, rash and negligent act, causing hurt, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused were charged that they made firing upon the complainant party, due to which two persons were hit, out of which one died---So far as the case of one of the accused/respondent Mr. "F" was concerned, he at the time of pronouncement of judgment remained absconder and his case was kept on dormant file and later on he joined the trial---During proceedings, said accused filed an application under S. 265-K, Cr.P.C., which was allowed by Trial Court and he was acquitted of the charge on the ground that co-accused persons who had faced full-fledged trial had already been acquitted and there was no tangible evidence or concrete material available on record from which guilt of said accused could be deduced and charge against him was groundless and even if case against him was proceeded, it would not entail into conviction rather sheer wastage of time---Thus, there was no merit in present appeal against acquittal of the respondent/accused---Acquittal recorded by Trial Court in favour of respondent/accused in the impugned judgment and order was based upon sound reasons, which required no interference---Appeals against acquittal being without merits were dismissed, in circumstances.

Iftikhar Ali Arain for Appellant/Complainant.

Nusrat Ali Memon for Respondents Nos.2 and 3 (in Criminal Acquittal Appeal No.D-148 of 2019).

Syed Sardar Ali Shah, Additional Prosecutor General Sindh for the State.

2024 M L D 225

[Sindh]

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

NAWAL and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.Ps. Nos. D-692 and D-1098 of 2022, decided on 14th November, 2022.

Constitution of Pakistan---

----Arts. 25 & 199---Educational institution---Admission to medical college---Discrimination---Petitioners/candidates were aggrieved of eligibility criteria determined for admissions to Medical College for Overseas Pakistanis and others---Validity---Classification for candidates who had studied abroad for a mere 2-year period, no matter where that may be, were considered to be at an academic advantage compared to candidates who had acquired their education in Pakistan---Such classification amounted to a damning indictment of the overall state of education in country---While a distinction might be drawn for purposes of admission between local Pakistanis and persons who are overseas Pakistanis, the latter genre cannot be broadened vide impugned classification in question merely on the basis of two-years of foreign education, so as to encompass persons who are Pakistani citizens and otherwise possess qualifications and thus preclude them from applying for general merit seats---High Court set aside classification in question as the same was unreasonable and could not be introduced in the prospectus as a device to put an otherwise eligible Pakistani citizen beyond the pale of consideration---Constitutional petition was allowed in circumstances.

Abdul Baqi and others v. Muhammad Akram and others PLD 2003 SC 163 and Mst. Attiyya Bibi Khan v. Federation of Pakistan through Secretary of Education (Ministry of Education, Civil Secretariat, Islamabad and others 2001 SCMR 1161 ref.

Aaqib Rajper for the Petitioners (in C. P. No. D-692 of 2022).

Nazir Ahmed Shar for the Petitioner (in C. P. No. D-1098 of 2022).

Zeeshan Abdullah for the Pakistan Medical Commission.

Abdul Waheed Syal for Jinnah Sindh Medical University.

Muhammad Wasiq Mirza and Syed Israr Hussain for Respondents/Dow University of Medical and Health Science, Karachi.

Talha Abbasi for Shaheed Mohtarma Benazir Bhutto Medical University, Larkana, Muhammad Jawwad Dero, Additional Advocate General, Sindh and Kazi Abdul Hameed Siddiqui, DAG.

2024 M L D 246

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

ZAHOOR AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-60 of 2020, decided on 20th May, 2022.

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

----Ss. 302, 393, 394 & 34---Qatl-i-amd, attempt to commit robbery, robbery, common intention--- Appreciation of evidence--- Ocular account furnished by eye-witness believable---Accused were charged for committing murder of the sister of the complainant during robbery and also caused firearm injury to his cousin---Prosecution in order to prove its case had examined complainant, who was eye-witness of the incident and narrated the whole story of the case---Evidence of complainant was corroborated by another eye-witness, who narrated the same facts as stated by the complainant---Said eye-witness fully supported the case in respect of date, time and manner in which incident took place including the identity of the accused---Eye-witness was cross-examined by the defence and during cross-examination stated that the accused was residing about 2/3 kilometers away from the village of complainant party---In respect of identity at night time on question of the defence witness, eye-witness stated that the bulb was fixed in the Chapra where he along with other witnesses were sleeping on cots and accused were identified by them at a distance of 10/12 feet---No major contradiction appeared in the evidence of said witness and his evidence was reliable, trustworthy and confidence inspiring---No enmity whatsoever had been suggested to such witness for false implication of the accused in the case---Appeal against conviction was dismissed accordingly.

Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825; Arshad Khan v. The State 2017 SCMR 564; Riaz Ahmed v. The State 2010 SCMR 846; Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Hashim Qasim and another v. The State 2017 SCMR 986; Sheral alias Sher Muhammad v. The State 1999 SCMR 697; Muhammad Rashid and another v. The State 2022 YLR 119; Nawab Ali v. The State 2014 PCr.LJ 885; Abdul Khalique v. The State 2020 SCMR 178; Muhammad Qasim alias Qasu and 3 others v. The State 2018 PCr.LJ 490; The State v. Noor Ahmad alias Thola and 3 others 1991 PCr.LJ 2007; Muhammad Tufail v. The State PLD 2002 SC 786 and Hameer v. The State 2003 PCr.LJ 1452 ref.

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

----Ss. 302, 393, 394 & 34---Qatl-i-amd, attempt to commit robbery, robbery, common intention---Appreciation of evidence---Weapon of offence and crime empties, recovery of---Reliance---Accused were charged for committing murder of the sister of the complainant during robbery and also caused firearm injury to his cousin---Accused led the police in his house; an iron trunk was kept in one room on the eastern side of his house and he produced one .30 bore pistol before the Police Officer in their presence---Police Officer checked the pistol which gave smell of gun powder and it was found containing three live bullets of .30 bore---Recovery witnesses were cross-examined by the defence but their evidence was not shattered---One of the mashirs was also examined who deposed that in his presence dead body of deceased sister of complainant was inspected--- Place of incident was inspected in his presence wherefrom blood stained earth and four empties of .30 bore pistol were collected---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused by producing reliable, trustworthy, and confidence-inspiring evidence--- Appeal against conviction was dismissed accordingly.

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

----Ss. 302, 393, 394 & 34---Qatl-i-amd, attempt to commit robbery, robbery, common intention---Appreciation of evidence---Delay of one day in lodging the FIR explained---Accused were charged for committing murder of the sister of the complainant during robbery and also caused firearm injury to his cousin---Defence's objection that there was delay of about one day in registration of FIR, therefore the case was doubtful and its benefit must go to the accused, had no force as according to contents of FIR at the first instance complainant took the deceased and the injured to hospital for postmortem of deceased and treatment of the injured and they had been waiting for the parents of the deceased who had gone to meet with their son serving in army---On return of her parents and funeral rites the FIR was lodged, as such the delay, if any, in registration of the FIR was properly explained by the complainant---In such circumstance the delay, if any, occurring in the registration of FIR was not fatal to the case of prosecution---Appeal against conviction was dismissed accordingly.

Abdul Khalique v. The State 2020 SCMR 178 rel.

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

----Ss. 302, 393, 394 & 34---Qatl-i-amd, attempt to commit robbery, robbery, common intention---Appreciation of evidence---Delay in recording the statement of witnesses by police---Inconsequential---Accused were charged for committing murder of the sister of the complainant during robbery and also causing firearm injury to his cousin---Defence's objection that the statements of the witnesses under S. 161, Cr.P.C., were recorded with delay and the prosecution failed to explain such delay which was fatal to the prosecution, had no force---Intentionally or otherwise any concession extended to the accused by the Investigating Agency would not to be termed fatal to its own case---Belated recording of statement of witnesses under S. 161, Cr.P.C. was no ground to brush aside the statement of such witnesses---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused by producing reliable, trustworthy, and confidence-inspiring evidence---Appeal against conviction was dismissed accordingly.

Qaisar Hussain alias Kashi alias Kashif v. The State 2011 PCr.LJ 1126 rel.

(e) Criminal trial---

----Minor contradictions--- Scope--- Minor contradictions are not sufficient to create any serious doubt and the same can be ignored, which always are available in each and every case.

Zakir Khan v. The State 1995 SCMR 1793 rel.

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

----Ss. 302, 393, 394 & 34---Qatl-i-amd, attempt to commit robbery, robbery, common intention---Appreciation of evidence---Related and interested witnesses, evidence of---Reliance---Accused were charged for committing murder of the sister of the complainant during robbery and also causing firearm injury to his cousin---There appeared two eye-witnesses of the incident, i.e. complainant and an eye-witness, who had fully supported the case against the accused by specifically deposing that the accused had directly fired upon the deceased from pistol which hit her---Both the witnesses remained consistent during the trial on all material particulars of the prosecution case in so far as the role attributed to the accused was concerned---Testimony of prosecution witnesses was corroborated by medical evidence, which was consistent with the ocular account in so far as the weapon, locale of injury and time which elapsed between the injury and post-mortem examination, were concerned---Although the witnesses were relatives of the deceased but they specifically narrated each and every aspect of the incident and their presence at the time of incident had been established beyond a reasonable doubt---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused by producing reliable, trustworthy, and confidence-inspiring evidence---Appeal against conviction was dismissed accordingly.

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

Shamsuddin N. Kobhar for Appellant.

Rashid Ali Sindhu for the Complainant.

Shafi Muhammad Mahar, Deputy Prosecutor General for the State.

2024 M L D 286

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD SHAKEEL alias CHOTOO---Appellant

Versus

The STATE---Respondent

Special Criminal A.T. Appeal No. 97 of 2021, decided on 20th October, 2022.

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

----Ss. 302(b), 324, 109 & 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---Benefit of doubt---Statement of sole eye-witness---Scope---Accused was charged that he along with his co-accused made firing upon the complainant party, due to which three persons died and two were injured---Admittedly, it was a day light incident however the eye-witness did not know the accused and that was the first time he had seen him---Eye-witness would only have got a fleeting glance of the accused under traumatic and chaotic circumstances and even in his own evidence, he stated that he was terrified and ran to save his life and became confused---Surprisingly, despite the fact that the eye-witness's friends were murdered before his very eyes, he being an important eye-witness had not gone to the police to give his statement, instead the police came looking for him which raised eye brows---Eye-witness gave his S. 161, Cr.P.C. statement five days after the incident which went against him---According to the evidence of eye-witness due to trauma he was unable to prepare sketches of any of the accused who made the firing and he did not give any description in respect of any of the persons who had made firing but only said that he could recognize them again if he saw them---Identification parade was held after three years and six months of the incident when the accused was arrested in another case and the eye-witness stated at the identification parade that 7/8 people made the firing as opposed to 4/5---Thus, it was found that the eye-witness had not been able to correctly, safely and reliably identify the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Nadeem Khan and 2 others v. The State 2020 YLR 2461; Ayaz Ahmed Siddiqui v. The State 2021 PCr.LJ 325; Hakeem and others v. The State 2017 SCMR 1546; Hayatullah v. The State 2018 SCMR 2092; Ayaz and 2 others v. The State 2020 PCr.LJ Note 44; Farooq v. Musavir Ahmed and 3 others 2020 PCr.LJ 328; Jehan Ali alias Jee Khan v. The State and others 2017 PCr.LJ 622; Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319; Amrood Khan v. The State 2002 SCMR 1568; Muhammad Waris v. The State 2008 SCMR 784; Khalid Naseer and another v. The State and another 2020 SCMR 1966; Akhtar v. The State 2020 SCMR 2020; Muhammad Hayat and another v. The State 2021 SCMR 927 and Ijaz Ahmed v. The State and others 2022 SCMR 1577 ref.

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

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

----Ss. 302(b), 324, 109 & 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---Benefit of doubt---Withholding best evidence---Accused was charged that he along with his co-accused made a firing upon the complainant party, due to which three persons died and two were injured---Record showed that an injured eye-witness at the crime scene who was the star eye-witness of the prosecution was given up by the prosecution without any reasonable explanation and as such as per Art. 129(g), Qanun-e-Shahadat, 1984, an adverse inference could be drawn that he would not have supported the prosecution case---Thus, the prosecution deliberately withheld the best evidence available to them---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence can only reveal what kind of weapon/device was used and the seat of the injuries of the dead and injured---However, medical evidence cannot identify the person who inflicted the injuries.

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

----Ss. 302(b), 324, 109 & 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---Benefit of doubt---Confession of accused before police---Scope---Accused was charged that he along with his co-accused made firing upon the complainant party, due to which three persons died and two were injured---Although the accused confessed to the offence whilst in police custody but he was not produced before a Magistrate to record his confession under S. 164, Cr.P.C., despite being produced for an identification parade which was held by a Magistrate---Thus, no reliance could be placed on the confession allegedly made by accused before the police---Moreover, it did not appeal to logic, reason or commonsense that the accused would confess such a serious crime as the present one, which carried the death penalty whilst in police custody in another case which related to narcotics when there was no evidence against him at the time of his arrest in respect of the instant case which had been disposed of long time ago in "A" class---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324, 109 & 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---Benefit of doubt---Crime empties recovered from the spot---No reliance---Accused was charged that he along with his co-accused made a firing upon the complainant party, due to which three persons died and two were injured---Record showed that no pistol was recovered from the accused and as such the empties which were recovered at the scene of the crime despite a positive Forensic Science Laboratory Report could not link the accused to the crime scene---Thus, the Forensic Science Laboratory Report was of no significance---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

(f) Criminal trial---

----Benefit of doubt---Principle---Prosecution must prove its case against the accused beyond a reasonable doubt---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.

Ghulam Fareed Baloch for Appellant.

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

2024 M L D 327

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro, J

SHAFQUAT HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-154 of 2015, decided on 5th December, 2022.

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

----Ss. 302, 324, 147, 148, 149 & 114---Qatl-i-amd, attempt to commit qatl-i-amd, common object, rioting armed with deadly weapon, unlawful assembly and abettor present when offence committed---Appreciation of evidence---Record showed that complainant, in the FIR, had stated that on instigation of a co-accused, appellant/accused and another co-accused (already acquitted) had made straight fires upon them from their respective Kalashnikovs and one bullet fired by appellant had hit his brother (deceased) on his chest, whereas in his evidence he had not taken name of said co-accused (who instigated) for making firing upon deceased and had stated that it was appellant who made a direct fire from his Kalashnikov upon deceased with intention to commit his murder---Further, in the FIR the complainant had stated that as soon as they reached the spot they saw the accused standing duly armed with weapons, while in his evidence, he had stated that accused had come to spot riding on two motorcycles; his assertion had been contradicted by another prosecution witness (an eye-witness), who had stated that the accused came in front of them by foot---Said prosecution witness had stated that on instigation of co-accused all accused started firing on them and then appellant also started doing so and his fire hit the deceased on his chest which was different to what complainant had said, in his cross-examination---Complainant stated that accused were standing at a distance of 15 meters (almost 45 feet) from them and conjointly fired at complainant party, members of which, from narration in FIR, appeared to be standing together in close proximity, but strangely, it was only the deceased who received a single bullet injury, and none of the prosecution witnesses sustained a scratch from alleged heavy firing made by accused---Prosecution, because of existence of doubt, had not succeeded in proving the case against the appellant---Appeal filed by the accused was allowed, in circumstances.

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

----Ss. 302, 324, 147, 148, 149 & 114---Qatl-i-amd, attempt to commit qatl-i-amd, common object, rioting armed with deadly weapon, unlawful assembly and abettor present when offence committed---Appreciation of evidence---Factum of heavy firing was actuated from memo of place of incident which showed that six empties of rifle 7.62 and three misfired bullets of same weapon were recovered from place of incident, besides blood stained earth---Both pieces of evidence were collected and duly sealed but, strangely, none of them was sent for FSL report in investigation, and instead, the exhibited FSL Report showed that blood stained earth and clothes of deceased were received by chemical examiner through a letter after more than one and half years of incident/occurrence---Such long delay, since had not been explained, was fatal to the prosecution insofar as connectivity of such pieces of evidence qua guilt of the appellant was concerned---Prosecution, because of existence of doubt, had not succeeded in proving the case against the appellant---Appeal filed by the accused was allowed, in circumstances.

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

----Ss. 302, 324, 147, 148, 149 & 114---Qatl-i-amd, attempt to commit qatl-i-amd, common object, rioting armed with deadly weapon, unlawful assembly and abettor present when offence committed---Appreciation of evidence---Complainant and one of the prosecution witnesses both had stated in their evidence that all the accused armed with different weapons had fired upon them, but from place of incident, empties and missed bullets of only 7.62 mm rifle were recovered and not a single empty of a bullet fired from pistol or repeater was found---It was beyond belief that why the accused targeted deceased only and spared complainant and others present on the spot, although it had been asserted that they had an issue with entire complainant party and not with deceased only---Targeting the deceased only and leaving others unscathed so that they could testify against them in the Court of law did not appeal to common sense---Similarly, when all the accused fired, or at least two of them, as was stated in FIR, it would not be humanly possible to distinguish and/or perceive which accused's bullet had hit the deceased, therefore, assertion of the complainant and prosecution witness that it was a bullet fired by appellant which had hit the deceased was not without question either---Prosecution, because of existence of doubt, had not succeeded in proving the case against the appellant---Appeal filed by the accused was allowed, in circumstances.

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

----Ss. 302, 324, 147, 148, 149 & 114---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, common object, rioting armed with deadly weapon, unlawful assembly and abettor present when offence committed---Appreciation of evidence---Complainant and one prosecution witness (an eye-witness) both had stated that at the time of incident, another cousin was also present with them, but said cousin filed an application in Trial Court stating that he had not seen the incident, which was taken on record and the Trial Court had mentioned about it in the impugned judgment, thereafter, the Counsel also filed a statement giving up said prosecution witness---Illustrations (g) to Art. 129 of the Qanun-e-Shahadat, 1984, in such a case would be attracted that the said witness, if had been examined, would not have supported the prosecution case; his filing application and non-examination had, to a certain extent, dealt a severe blow to presence of witnesses at the spot, which if seen with the other/some discrepancies of the evidence would lead one to get suspicious about presence of witnesses on the spot and the manner in which incident had been described by them to have happened---Prosecution, because of existence of doubt, had not succeeded in proving the case against the appellant---Appeal filed by the accused was allowed, in circumstances.

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

----Ss. 302, 324, 147, 148, 149 & 114---Qatl-i-amd, attempt to commit qatl-i-amd, common object, rioting armed with deadly weapon, unlawful assembly and abettor present when offence committed---Appreciation of evidence---Medico-Legal Officer (Doctor) in cross-examination had opined that the fire to the deceased was made from a distance of 05 to 20 feet, which did not align with the distance between the accused and complainant party described by a prosecution witness in his cross-examination---Doctor had further suggested that probability of the deceased having sustained 5 injuries in sleeping position could not be ruled out, which did not fit in with description described by the witnesses in this regard---Prosecution, because of existence of doubt, had not succeeded in proving the case against the appellant---Appeal filed by the accused was allowed, in circumstances.

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

----Ss. 302, 324, 147, 148, 149 & 114---Qatl-i-amd, attempt to commit qatl-i-amd, common object, rioting armed with deadly weapon, unlawful assembly and abettor present when offence committed---Appreciation of evidence--- Long abscondence of appellant could not be considered to be sufficient proof of his being guilty, nor had the same even been considered by the Trial Court---Regarding his absconsion, no question had been put to the appellant in his statement under S. 342, Criminal Procedure Code, 1898---Prosecution, because of existence of doubt, had not succeeded in proving the case against the appellant---Appeal filed by the accused was allowed, in circumstances.

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

----Ss. 302, 324, 147, 148, 149 & 114---Qatl-i-amd, attempt to commit qatl-i-amd, common object, rioting armed with deadly weapon, unlawful assembly and abettor present when offence committed---Appreciation of evidence---Investigation appeared to be faulty as neither the items recovered from place of incident plus clothes of victim were sent for lab report within time nor a Tapedar was deputed to prepare sketch of place of incident to point out exact location of the deceased with regard to presence of accused and witnesses---Prosecution, because of existence of doubt, had not succeeded in proving the case against the appellant---Appeal filed by the accused was allowed, in circumstances.

(h) Criminal trial---

----Benefit of doubt---Principle---It is not necessary that there may be multiple circumstances creating doubt over veracity of the case---If there is a single circumstance creating a reasonable doubt, benefit of same has to be extended to the accused as a right.

Altaf Shahid Abro for Appellant.

Mufeed Ahmed Narejo for the Complainant.

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

2024 M L D 343

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Tunio and Zulfiqar Ali Sangi, JJ

Syed SAMAR HASSAN SHAH---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

C.Ps. Nos. D-2495 and D-2528 of 2022, decided on 19th July, 2022.

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

----S. 35(1)(b)---Sindh Local Councils (Election) Rules, 2015, Rr. 16 & 18---Qualification of candidate---Determination---Petitioner contested the elections of member of Municipal Committee---Returning Officer rejected nomination papers of petitioner on ground that he had not attained the age of 21 by the last date of filing of the nomination papers---Validity---No valid contention was raised by the petitioner regarding his age being incorrectly noted, rather the same was admitted---Section 35(1)(b) of the Sindh Local Government Act, 2013, in clear terms required that a candidate be at least twenty one years by the final date of filing of nomination papers (15.06.2022) which the petitioner failed to comply with---B-Form of the petitioner issued by the NADRA on 15.02.2018 which was filed with the objections of the interveners/respondents before the Appellate Authority showed the date of birth of the petitioner to be 23.06.2003 while his Birth Certificate issued on 30.08.2019 showed his date of birth to be 23.06.2001, a difference of two whole years---Passport provided by the petitioner was also issued on 01.12.2020 whereas the CNIC of the petitioner which was produced with the objections of the interveners before the Appellate Authority showed his date of birth as 23.06.2001 and was issued in the year 2020---Earliest acceptable entry of the date of birth of the petitioner was in the B-Form which was issued in 2018---As such, the petitioner's own version regarding his age being 21 by the time he took oath or even at the time of appeal was contradicted by those documents---Not only that, since the petitioner provided two different date of births, the decision of the Appellate Authority became a finding of fact which could not be disturbed by High Court while exercising its Constitutional jurisdiction---Constitutional petitions were dismissed, in circumstances.

Ali Gohar Khan Mahar v. Election Commission of Pakistan 2014 CLC 776; Muhammad Raza Hayat Hiraj v. The Election Commission of Pakistan 2015 SCMR 233; 1992 PSC 651; 2004 SCMR 1719; PLD 1989 SC 166; 2004 YLR 3296 and 2008 CLC 697 ref.

Muhammad Ashraf v. Muhammad Aslam Shad and others 2016 YLR 1625; Shaukat Ali v. Election Tribunal and others 1993 CLC 2428 and Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Intizar Ali and others 2022 SCMR 472 rel.

Imdad Ali R. Unar for Petitioner.

Ashfaque Nabi Qazi, Assistant Attorney General for Pakistan, Zaheer Abbas, Law Officer Election Commission of Pakistan and Allah Bachayo Soomro, Additional A.G Sindh for Respondents.

2024 M L D 356

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

Dr. KHUSHAL and another---Applicants

Versus

LEELA RAM---Respondent

R.A. No. 116 of 2019, decided on 15th April, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42, 8 & 54---Suit for declaration, possession and permanent injunction---Encroachment or neighbour's plot---Suit was decreed by the Trial Court, whereas the appeal and revision were dismissed---Execution petition was allowed and appeal thereagainst was also dismissed---Validity---Trial Court appointed a commission who opined that defendants were in possession of an area of 2,245 sq. feet instead of 2,150 sq. feet---City survey sheet of both the plots reflected that the petitioners being owner of plot No.869 had extended their plot boundaries to an area of 4-1 x 17-2 sq. feet from the respondent's plot No.870---In fact, the petitioners claimed that they were not given their area in toto and they had adjusted it from the neighbour's plot---Such assertion of the petitioners, at the face of it, appeared to be illegal and vandalizing---If the petitioners felt that their accurate area had not been given to them, they could have approached the concerned authorities for redressal of their grievance, rather than eating a slice out of land from their neighbours' plot---No one could be a judge, jury and executioner at the same time nor one could be judge in his own case---Site map clearly showed boundaries of both the plot Nos. 869 and 870 and clearly reflected that a piece of plot No. 870 had been encroached by plot No. 869---Revision application was dismissed.

Sartar Iqbal Panhwar for Applicants.

Zeeshan Malik for Respondent.

2024 M L D 387

[Sindh]

Before Muhammad Shafi Siddiqui, J

Messrs FORTUNE FOUR LLP through Designated Partner---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary Aviation Division and others---Defendants

Suit No. 2020 of 2021, C.M.As. Nos. 15030 and 15031 of 2021 decided on 22nd March, 2023.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Dispute with regard to demarcation of suit land and right of way---Creating third party interest over the strip of land in question could prejudice right of plaintiff insofar as ingress and egress of the plaintiff over the plot through main Jinnah Avenue and its service lane (if so determined) was concerned---Such determination required evidence as to what the original plan of defendant/Civil Aviation Authority was; whether the strip was included within the land that was granted to defendant/Civil Aviation Authority and if so for what purpose that strip of land was left for, as it was adjacent to a huge land and owner's access could not be blocked; and whether subject plot as disclosed to have been bounded from the northern side by Jinnah Avenue Road could still be objected as far as right of way was concerned, on the count of security etc.---Plaintiff had to demonstrate only an arguable case---Plaintiff had shown prima facie case---Buying property on "as is where is basis" did not conclude that it was purchased with an understanding that there was no right of way from the northern side (Jinnah Avenue)--- High Court granted interim injunction to the extent that defendant/Civil Aviation Authorities was restrained from creating third party interest over the strip of land that bifurcated plot in question and Jinnah Avenue---Application was allowed accordingly.

Ayan Memon and Ali Zuberi for Plaintiff.

Khurram Rasheed for Defendant No. 2.

Sandeep Malani, Assistant Advocate General and Ms. Mahreen Ibrahim, Assistant Attorney General for Federation.

2024 M L D 408

[Sindh]

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

ZEBA ILYAS---Petitioner

Versus

KARACHI METROPOLITAN CORPORATION through Administrator and 3 others---Respondents

Constitutional Petition No. 4940 of 2021, decided on 11th November, 2022.

Civil Procedure Code (V of 1908)---

----S. 48---Limitation Act (IX of 1908), Art. 181--- Execution petition---Limitation---Doctrine of merger---Scope---Execution petition filed by the petitioners was dismissed as being time barred---Validity---Suit filed by the petitioner culminated in dismissal at first instance, prompting the petitioner to file Civil Appeal, where judgment was entered in her favour with the impugned judgment and decree being set aside and suit was decreed as prayed---Appellate decree was then drawn up accordingly on 04.07.2011--- Respondent filed Civil Revision Application which was dismissed on 18.09.2018, without any interim order for stay or suspension of the Appellate decree having ever been made during pendency of the matter---In that backdrop the Execution Application came to be filed by the petitioner on 20.04.2019---Case of the petitioner turned on the assertion that the doctrine of merger extended to the proceedings of the revisional forum, and that as the Appellate Decree merged into the final order/judgment of the revisional Court, the period of limitation began to run from the date of disposal of the Revision Application---Held, that revision was dismissed on 18.09.2018 for non-prosecution and no order had been made during the proceedings for stay or suspension of the Appellate Decree---As such, the doctrine of merger sought to be relied upon by the petitioner would not apply---Petition was dismissed accordingly.

Muhammad Nazir v. Qaiser Ali Khan 2003 SCMR 436; Muhammad Umar Gul v. Ikram Ullah Khan 1997 MLD 1917 and Bakhtiar Ahmed v. Mst. Shamim Akhtar and others 2013 SCMR 5 ref.

Maulvi Abdul Qayyum v. Ali Asghar Shah 1992 SCMR 241; Balakanat v. Mst. Munni Dail AIR 1914 PC 65 and Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another PLD 2016 SC 358 rel.

Abdul Wajid Wyne for Petitioner.

Syed Hassan M. Abidi for Respondents Nos. 1 and 2.

Nemo for Respondents Nos. 3 and 4.

2024 M L D 438

[Sindh]

Before Muhammad Faisal Kamal Alam, J

HASAN AHMAD---Plaintiff

Versus

MUHAMMAD FAROOQ through legal heirs and another---Defendants

Suit No.1205 of 2005, decided on 11th January, 2023.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement to sell---Execution of agreement---Proof---Damages, relief of---Scope---Plaintiff claimed to have entered into agreement to sell with defendant regarding purchase of suit property---Defendant denied having executed any agreement to sell---Validity---Signatures of defendant on written statement, affidavit-in-evidence, which was an admitted document, viz. conveyance deed between both the defendants were similar to that on receipt of part payment signed by defendant in respect of subject sale transaction, witnessed by two persons---Suit filed by plaintiff was maintainable and sale transaction in respect of suit property was proved by plaintiff, therefore, specific performance could be granted---High Court granted specific performance to plaintiff, therefore, claim with regard to damages had become infructuous---Relief of specific performance of a contract was a discretionary one and Court could mold the relief, where the facts and circumstances had so permitted---Suit was decreed accordingly.

Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639 ref.

Ms. Shumaila Saghir for Plaintiff.

Syed Nadeem-ul-Haq for Defendants Nos.1(i) to (ix).

Nemo for Defendant No.2.

2024 M L D 474

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MOHAMMAD DANISH REHMANI---Appellant

Versus

The STATE---Respondent

Special Criminal Terrorism Appeals Nos.189, 190 of 2021 and Confirmation Case No.11 of 2021, decided on 22nd August, 2022.

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

----Ss.302, 119, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, public servant concealing design to commit offence, abetment, common intention, act of terrorism---Appreciation of evidence---First Information Report containing no description of accused---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Significantly, the FIR was against unknown persons without any description of those persons being given in the FIR---Circumstances established that the prosecution had not proved its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss.302, 119, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, public servant concealing design to commit offence, abetment, common intention, act of terrorism---Appreciation of evidence---Night time occurrence---Source of light not proved---Chance witness---Accused was charged for committing murder of the brother of the complainant by firing---Prosecution's case rested almost exclusively on the evidence of the sole eye-witness to the incident and his ability to correctly identify the accused who allegedly came on a motor bike along with others and fired on the deceased---According to the evidence of that witness, he was working at a printing press at the time of the incident but at the time of giving evidence he gave his occupation as a rickshaw driver which tended to cast doubt on what the actual job of the witness was and whether in fact he was a chance or planted witness---According to his evidence, he witnessed the incident from a gali at 11:45 pm at night when it was dark---No evidence was available on record that there was any source of light at that time and it was unclear how far away he was from the firing which would only have gone on for a brief moment and under chaotic circumstances---Under such circumstances, it was doubtful that even if the witness was present he would have been able to correctly identify the accused of whom he would have only got a fleeting glance on seeing him for the first time---According to his evidence said witness gave his statement to the police three days after the incident along with his name and address, however he was not contacted by the first Investigating Officer despite him being a really important witness who originally submitted his report in "A" class without any mention of the eye-witness which again raised doubt that he was even present at the time of the incident---Even if the eye witness was present at the time of the incident, which was very much doubtful, he would not have been able to correctly, safely and reliably identify the accused----Circumstances established that the prosecution had not proved its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

Maqbool alias Booli v. Shaukat Ali 2011 YLR 1207 ref.

Javed Khan v. State 2017 SCMR 524 rel.

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

----Ss. 302, 119, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, public servant concealing design to commit offence, abetment, common intention, act of terrorism---Appreciation of evidence---Test identification parade---Infirmities---Accused was charged for committing murder of the brother of the complainant by firing---Eye-witness recognized the accused one year and two months after the incident before an identification parade when called by the new Investigating Officer who somehow miraculously came across his details despite the eye-witness not even being mentioned in his supplementary challan---Eye-witness had not given any hulia of the accused to anyone prior to the identification parade---Accused was in police custody until the identification parade and claimed that he was shown to the eye-witness by the police prior to the identification parade and even in his evidence the eye-witness stated that he had identified the accused six years back and now he could not memorize who he had identified and therefore in court he would not be able to identify the accused whom he identified before the Judicial Magistrate---Identification parade was carried out one month after the alleged arrest of the accused by the police and no explanation had been given for such delay and throughout that time the accused remained in police custody who could be shown to any potential eye witness prior to any identification parade---Circumstances established that the prosecution had not proved its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence can only reveal what kind of weapon/device was used and the seat of the injuries on the dead and injured---Medical evidence cannot identify the person who inflicted the injuries.

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

----Ss.302, 119, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, public servant concealing design to commit offence, abetment, common intention, act of terrorism---Appreciation of evidence---Confession before police---Not admissible in evidence---Accused was charged for committing murder of the brother of the complainant by firing---Notable that the accused confessed to the offence whilst in police custody---However, accused was not produced before a Judicial Magistrate to record his confession under S.164, Cr.P.C, despite being produced before a Judicial Magistrate for an identification parade---Thus, no reliance could be placed on confession of accused allegedly made before the police---Said fact did not appeal to logic, reason or commonsense that the accused would confess to such a serious crime as the present one which carried the death penalty whilst in police custody when there was no evidence against him at the time of his arrest---Circumstances established that the prosecution had not proved its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss.302, 119, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, public servant concealing design to commit offence, abetment, common intention, act of terrorism---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused---Inconsequential---Probablity of weapon falsely foisted upon accused---Accused was charged for committing murder of the brother of the complainant by firing---Record showed that a pistol was recovered on the pointation of the accused which was denied by eye-witness---Prosecution did not even produce positive Forensic Science Laboratory Report to match the pistol with the empties found at the scene---Conveniently, the police did not even take the statements of two witnesses who were with the accused at the time of the shooting and were very vital witnesses---Whole prosecution story was full of holes and did not ring true---Evidence of one of the mashirs of the recovered pistol appeared to be wholly unreliable and the aspect of the pistol being foisted on the accused by the police could not be ruled out---Circumstances established that the prosecution had not proved its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

(g) Criminal trial---

----Benefit of doubt---Principles---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.

Hassan Sabir for Appellant.

Muhammad Iqbal Awan, Additional Prosecutor General Sindh assisted by Rana Khalid, Special Prosecutor Rangers for Respondents.

2024 M L D 491

[Sindh (Sukkur Bench)]

Before Amjad Ali Sahito, J

MUHAMMAD EISSA and another---Appellants

Versus

The STATE---Complainant

Criminal Appeal No.S-138 of 2009, decided on 27th May, 2022.

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

----Ss.302(b), 324, 147, 148, 149 & 120-B---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, criminal conspiracy---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light not sufficient for identification---Accused were charged for committing murder of the son of the complainant and injuring his wife by firing---Perusal of the FIR and other material showed that the complainant had not attributed a specific role against any of the accused and he had leveled general allegations against all the accused persons and it was a dark night incident---Question arose as to how in a dark night, the witnesses were able to identify the accused and the weapon in their hands in lantern light---Appeal against conviction was allowed accordingly.

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

----Ss.302(b), 324, 147, 148, 149 & 120-B---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, criminal conspiracy---Appreciation of evidence---Benefit of doubt---Co-accused were acquitted on same set of evidence---Effect---Accused were charged for committing murder of the son of the complainant and injuring his wife by firing---Record showed that on same set of evidence, trial court had acquitted four co-accused persons while the present accused were convicted---Once prosecution witnesses were disbelieved with respect to a co-accused, they could not be relied upon with regard to the other accused unless they were corroborated by corroboratory evidence which came from an independent source and was also unimpeachable in nature which was missing in the present case---Appeal against conviction was allowed accordingly.

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

----Ss.302(b), 324, 147, 148, 149 & 120-B---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, criminal conspiracy---Appreciation of evidence---Benefit of doubt---Identification of the accused doubtful---Accused were charged for committing murder of the son of the complainant and injuring his wife by firing---First Information Report showed that the accused persons went over the roof where the deceased and his wife had slept---Question arose as to how the complainant and eyewitness saw the accused persons while committing the occurrence when they were sleeping in the courtyard of the house---Circumstances suggested that false witnesses were planted in order to state and affirm the anonymous witness account narrated to them---No direct evidence as available on the record to maintain the conviction and sentence against the accused---Appeal against conviction was allowed accordingly.

Munwar Iqbal v. The State 2005 PCr.LJ 364; Khuda Bux v. The State 2010 MLD 864; Mumtaz Ali and another v. The State 2013 YLR 1619; Umar Farooque v. The State 2006 SCMR 1605; Akhtiar Ali and others v. The State 2006 SCMR 06; Shahbaz v. The State 2016 SCMR 1763; Muhammad Asif v. The State 2017 SCMR 486; Shewaiz Rasool alias Shabbi v. The State and others 2019 SCMR 1448; Munir Ahmed and others v. The State and others 2019 SCMR 2006 and Liaquat Ali and others v. The State and others 2021 SCMR 455 ref.

Zaffar v. The State 2018 SCMR 326 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creats a reasonable doubt in a prudent mind regarding the guilt of the accused, the benefit of the doubt must be granted to the accused---Accused is entitled to the benefit of such doubt not as a matter of grace, but as a matter of right.

Mohammad Mansha v. The State 2018 SCMR 772; Muhammad Luqman v. State PLD 1970 SC 10 and Tariq Pervez v. State 1995 SCMR 1345 rel.

(e) Criminal trial---

----Medical evidence, motive, recovery and abscondance-- Corroborative/supportive evidence---Medical evidence, motive, recovery and for that matter absconding of the accused are merely supportive/corroborative pieces of evidence---It is always the direct evidence which is material to decide a charge---Failure of direct evidence is always sufficient to hold a criminal charge as not proved.

(f) Criminal trial---

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

Noor Muhammad Soomro for Appellants.

Aijaz Ali Maitlo for the Complainant.

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

2024 M L D 509

[Sindh (Hyderabad Bench)]

Before Amjad Ali Sahito, J

ALI AKBER---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-204 of 2004, decided on 4th October, 2022.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with his co-accused committed murder of the deceased---Complainant was not aware at what time the incident had taken place in the night and the footprints of culprits disappeared from the path---Witness also admitted that no eye-witness of incident of murder of deceased had appeared before the complainant party nor before the police---Said witness had also admitted that he had not stated to the police that the footprints available at the place of wardat/place of the incident were of co-accused---Other piece of evidence available with the prosecution was in the shape of evidence of a witness who scribed a chit at the instance of co-accused, which was about revenge and dispute in between the complainant party and accused---However, neither said witness disclosed to the complainant party about the chit nor he had informed any other person to believe that on the instance of the accused persons he had written a chit---Said chit was not sent to the expert to confirm that the same was written by said witness nor it was verified by the Trial Court that it was the handwriting of said witness---Neither the chit disclosed the name of the accused nor other witnesses, implicated the present accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

(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---Confessional statement of accused, recording of---Infirmities---Accused was charged that he along with his co-accused committed murder of the deceased---In the present case, Recording Magistrate did not observe the least precautions required under the law---Magistrate did not even follow the guideline as provided by the Supreme Court of Pakistan---Magistrate had deposed in his examination-in-chief that on 05.09.1995 the accused was produced before him and he had given refection time of about four hours but he had not informed accused that if he would not confess the guilt his custody would not be handed over to the Police Officials but he would be sent to jail---In cross-examination, said witness admitted that the confessional statement form was printed one and he had not mentioned in certificate that contents of the confessional statement were accepted by the accused and thereafter he put his thumb impression on it---Magistrate admitted that before signing certificate he put sign on confessional statement and obtained the thumb impression of accused---In the certificate said witness had not mentioned that the statement of accused was made before him voluntarily, and whether the contents of statement were full and true---Second warning in the confessional statement of accused was not mentioned---Witness stated that he could not say whether accused was illiterate or literate---Witness had not mentioned in confessional statement that accused was without fear of any danger, while giving his statement before him---It was also not mentioned in confessional statement that accused was sitting in the chamber of Judicial Magistrate---Identification mark of accused was not mentioned in the confessional form---It was not mentioned in the printed form that Judicial Magistrate verified the CNIC of accused who confessed before him---In certificate the word of "verbatim" was not mentioned by Judicial Magistrate for translation from Sindhi to Urdu and Urdu to Sindhi---From the perusal of confessional statement, it appeared that even Magistrate was not sure whether he had recorded the statement of the accused in open Court or in a chamber---Thus, the confessional statement was of no legal worth to be relied upon and had to be excluded from consideration---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Azeem Khan and others v. Mujahid Khan and others 2016 SCMR 274 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Principle---One tainted piece of evidence cannot corroborate another tainted piece of evidence.

Muhammad Bakhsh v. The State PLD 1956 SC 420 rel.

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

----S. 342---Examination of accused---Scope---Section 342, Cr.P.C., mandates that all incriminating evidence is to be put to the accused in his statement under said section and evidence which has not been confronted to the accused, conviction cannot be based on such evidence and such evidence has to be rejected or accepted in toto---If any incriminating piece of evidence is not put to the accused in his statement under S.342, Cr.P.C., for his explanation, the same cannot be used against him for his conviction.

Qaddan and others v. The State 2017 SCMR 148; Muhammad Shah v. The State 2010 SCMR 1009 and Muhammad Fayaz v. The State 2012 SCMR 522 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---If a reasonable doubt arises in the prosecution case, the benefit of same must be extended to the accused not as grace or concession, but as a matter of right.

Mohammad Marsha v. The State 2018 SCMR 772 rel.

Abdul Hameed Bajwa for Appellant.

Shahid Ahmed Shaikh, Additional Prosecutor General Sindh for Respondent.

2024 M L D 525

[Sindh]

Before Mohammad Karim Khan Agha and Arshad Hussain Khan, JJ

MOHIBULLAH alias GANDHGEER and others---Appellants

Versus

The STATE---Respondent

Spl. Cr. A.T.A Nos.106, 107, 108, 114 to 116, 117 and 118 of 2020, decided on 24th December, 2021.

Penal Code (XLV of 1860)---

----Ss. 324, 353 & 460---Anti-Terrorism Act (XXVII of 1997), S.7(1)(ff), (b) & (h)---Sindh Arms Act (V of 2013), S.23 (1)(a)---Attempt to qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, house-breaking by night and terrorism---Appreciation of evidence---Minor contradictions---Technical lapses of Investigating Agency / Prosecution---Accused persons were convicted by Trial Court and were variously sentenced, maximum upto imprisonment for life---Validity---Approach of Court while appreciating evidence should be dynamic and not static---By considering all attending circumstances of the case and evaluating evidence, if Court is satisfied that accused charged has committed crime, it should record conviction, though there may be some technical lapses on the part of Investigating Agency / Prosecution---Such lapses must not be prejudicial to accused in fair trial---All prosecution witnesses fully corroborated version of prosecution, who were cross examined at length but their testimonies could not be shaken---Accused persons failed to point out any material contradiction from record---Prosecution proved charge against accused persons beyond shadow of reasonable doubt before Trial Court---Evidence on record was property appreciated by Trial Court while recording convictions and sentences to accused persons---High Court maintained conviction and sentence awarded to accused persons by Trial Court---Appeal was dismissed, in circumstances.

Ghulam Mustafa v. The State 2009 SCMR 916; Ishtiaq Ahmed Mirza and 2 others PLD 2019 SC 675; The State ANF v. Muhammad Arshad 2017 SCMR 283; Akhtar v. The State 2020 SCMR 2020; Muhammad Ashraf v. The State 2011 SCMR 1046 and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

Jafar Ali v. The State 1998 SCMR 2669 and Khurshid v. The State PLD 1996 SC 305 rel.

Muhammad Rafique Dummber for Appellant (in Spl. Cr.A.T.As. Nos.106, 107 and 108 of 2020).

Hashim Soomro for Appellant (in Spl. Cr.A.T.As. Nos.114 to 116 of 2020).

Waqar Alam Abbasi for Appellants (in Spl. Cr.A.T.As. Nos.117 and 118 of 2020).

Muhammad Iqbal Awan, Additional Prosecutor General Sindh along with Ms. Aneela Malik, Assistant Prosecutor General Sindh for the State.

2024 M L D 546

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

UMED ALI alias UMEDO NAREJO---Appellant

Versus

The STATE---Respondent

Special Anti-Terrorism Jail Appeal No.D-53 of 2021, decided on 2nd November, 2022.

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

----Ss. 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of four hours and thirty minutes in lodging the FIR---Accused were charged for making firing upon police party, due to which one Police Constable sustained firearm injury---Record showed that encounter took place on 02.03.2009 at 05:00 p.m. and it was reported at Police Station at 09:30 p.m. with the delay of 04 hours and 30 minutes for which no plausible explanation had been furnished by the prosecution---Prosecution case was based on spy information and it was a day time incident and the Police Officials had sufficient time to collect independent persons of the locality but SHO avoided the same---According to prosecution evidence, accused was identified by the Police Officials but Police Officials had failed to disclose as to how they knew the accused before the incident---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Roznamcha, non-production of---Accused were charged for making firing upon police party, due to which one Police Constable sustained firearm injury---Investigating Officer had failed to produce roznamcha entry No.21 in which the names of other accused persons had been mentioned---Non-production of roznamcha entry No.21 cut the roots of prosecution case---Injured Police Constable in his evidence had levelled general allegations---Police encounter continued for about one hour and not a single injury was caused to any of the accused---Prosecution story appeared to be un-natural and unbelievable, in circumstances---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of crime empties from the spot---Inconsequential---Accused were charged for making firing upon police party, due to which one Police Constable sustained firearm injury---From the place of incident according to the evidence, 15 empties of Kalashnikov fired by accused were recovered, but those empties were neither sealed nor sent to expert for report---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. 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Call Data Record---Failure to produce---Accused were charged for making firing upon police party, due to which one Police Constable sustained firearm injury---Case of the prosecution was that during the encounter SHO approached the Police Head Quarter/Control Room for its help and at his request police parties of various Police Stations reached at the spot for rescue operation---Station House Officer had failed to produce call data of Head Quarter/Control Room for the satisfaction of the Court---Police Officials of various Police Stations participated in police encounter, but only one police constable sustained injury---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) Penal Code (XLV of 1860)---

----Ss. 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Defective investigation---Accused were charged for making firing upon police party, due to which one Police Constable sustained firearm injury---In the present case, investigation should have been conducted by some other agency---Standard of proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was a case of police encounter---Thus, it was desirable and even imperative that it should have been investigated by some other agency---Police could not be investigators of its own cause---Investigation which was woefully lacking independent character could not be made basis for conviction, when it was riddled with many lacunas and loopholes, apart from the afterthoughts and improvements---Moreover, it would not be in accord of safe administration of justice to maintain the conviction and sentence of the accused in the circumstances of the case---Appeal was allowed, in circumstances.

Haji Shamsuddin Rajper for Appellant.

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

2024 M L D 556

[Sindh (Sukkur Bench)]

Before Muhammad Faisal Kamal Alam, J

FEDERATION OF PAKISTAN through Secretary Railway/Chairman Government of Pakistan, Ministry of Railway, Islamabad and others---Applicants

Versus

ABDUL NAEEM and others---Respondents

Civil Revisions Applications Nos.S-122, S-134, S-135 of 2011, decided on 21st February, 2022.

Damages---

----Recovery of damages from Pakistan Railways---Determination of quantum---Principle---Applicants / plaintiffs sought recovery of damages on the ground that despite purchase of tickets from respondent / defendant Pakistan Railways, they could not travel due to non-availability of coach in which their seats were booked---Suit was decreed by Trial Court in favour of applicants / plaintiffs but damages awarded against Pakistan Railways were reduced by Lower Appellate Court---Validity---Courts have to decide matters in accordance with law and particularly in such claims under tort law on the evaluation of evidence and not on financial condition of government organizations, which are otherwise saddled with law to serve people and not to cause them inconvenience and hardship---With regard to award of damages for mental anguish, torture and inconvenience, no fixed criteria can be laid down---Passengers (applicants / plaintiffs) including family members of one of the passengers, suffered mental anguish and extreme inconvenience when they learned that subject coach having their reservations was not available---Lower Appellate Court did not find any irregularity in evaluation of evidence done by Trial Court but had decided the matters / appeals on completely new and invented consideration, which had no nexus with the facts of the case and could not sustain---High Court in exercise of revisional jurisdiction set aside findings of Lower Appellate Court and restored that of Trial Court---Revision was allowed, in circumstances.

Taluka Mukhtiarkar, Latifabad Hyderabad and another v. Vaqar Muhammad Shaikh and 2 others PLD 2004 Kar. 472; Mst. Khadija Karim v. Zia-ur-Rehman Khanzada and 7 others PLD 1999 Kar. 223; Secretary, B & R, Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625; Noor Ali v. The Province of Sindh through Secretary to Government of Sindh, Home Department, Karachi and 3 others PLD 2020 Sindh 700; Ameeruddin v. Fazalur Rehman Khan 2003 YLR 136; Subedar (Retd) Fazale Rahim v. Rab Nawaz 1999 SCMR 700; Federation of Pakistan v. Mrs. Sultan Saud 2005 SCJ 550; Muhammad Yousaf v. Syed Ghayyur Hussain Shah and 5 others 1993 SCMR 1185; Muhammad Bashir and others v. Iftikhar Ali and others PLD 2004 SC 465; Overseas Pakistanis Foundation and others v. Sqn. Ldr. (Retd.) Syed Mukhtiarkar Ali Shah and another 2007 SCMR 569; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 and Chief Engineer, Irrigation Department, N.W.F.P Peshawar and 2 others v. Mazhar Hussain and 2 others PLD 2004 SC 682 ref.

Sufi Muhammad Ishaq v. Metropolitan Corporation Lahore, PLD 1996 SC 737 and Abdul Majeed v. Tawseen Abdul Haleem 2012 CLC 6 rel.

Muhammad Imran Khan for Applicant-Pakistan Railway (in Civil Revisions Application No.S-122 of 2011).

Faisal Naeem for Applicants (in Civil Revisions Applications Nos.S-134 and S-135 of 2011 along with applicants).

Ali Raza Pathan, Assistant Attorney General Pakistan.

2024 M L D 569

[Sindh (Sukkur Bench)]

Before Arbab Ali Hakro, J

GHULAM MUSTAFA---Appellant

Versus

RASHID ALI---Respondent

Ist Civil Appeal No. S-30 of 2021, decided on 6th November, 2023.

(a) Words and phrases---

----Security and surety---Distinction---Security refers to freedom from harm or measures taken to prevent harm, while surety refers to a promise to one party to assume responsibility for the debt obligation of another party, if that party defaults.

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

----O. XXXVII, Rr. 2 & 3---Leave to defend the suit---Conditional order, non-compliance of---Effect---In summary suit, when defendant does not obtain leave or leave is refused to him, or where defendant fails to comply with conditional order such defendant is precluded from further contesting plaintiff's claim---There is further disability for defendant under O. XXXVII, C.P.C., that allegations in plaint must be deemed to be admitted and plaintiff would be entitled to a decree---Provisions of O. XXXVII, C.P.C., not only provide for abridgement of procedure of suits so covered but restricts and curtails right of defendants in such suits to contest plaintiff's claim---When matter is carried in appeal, the defendant who did not obtain leave or had failed to comply with conditional order continues to suffer under the same disability.

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

----O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S.118---Suit for recovery of money on the basis of negotiable instruments---Presumption---Leave to defend the suit---Conditional order, non-compliance of---Appellant/defendant was granted leave to defend the suit subject to deposit of security in shape of Defence Saving Certificates---Appellant/defendant failed to comply the condition resultantly suit was decreed against him---Validity---Cheques in question had presumption under S. 118 of Negotiable Instruments Act, 1881, and contents of plaint and allegations made therein were deemed to be admitted---Appellant/defendant did not comply with conditional order, therefore, he was not entitled to challenge the decree before High Court on such grounds that he had taken in application for leave to defend the suit---High Court declined to interfere with judgment and decree passed by Trial Court as the Court did not err in law by passing a decree---Appeal was dismissed, in circumstances.

Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832; Murtaza Haseeb Textile Mills v. Sitara Chemical Industries 2004 SCMR 882 and Haji Ali Khan and Company Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited Abbottabad PLD 1995 SC 362 ref.

Muhammad Ramzan and others v. Ghulam Qadir 2011 SCMR 659 rel.

Niazuddin N. Memon for Appellant.

Asif Hyder Phulpoto for Respondent.

2024 M L D 594

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD AHMED---Plaintiff

Versus

MUHAMMAD ISMAIL and others---Respondents

Civil Suit No.645 of 2014, decided on 12th April, 2016.

Specific Relief Act (I of 1877)---

----Ss. 12, 9, 39 & 54---Suit for possession, damages and mesne profits---Scope---Plaintiff filed a suit for possession, damages and mesne profits alleging therein that defendants came with false claim that plaintiff had gifted suit property to his mother and on basis of such false claim defendants filed suit; plaintiff filed his written statement therein which however was dismissed---Plaintiff claimed that defendants were residing in suit property since its construction under permission and licence of plaintiff which was revoked on filing of suit by the defendants---Plaintiff claimed to have suffered losses and mental agony due to filing of suit against him by defendants hence plaintiff claimed that defendants were liable to pay mesne profit and give possession with amount of damages---Validity---Record showed that suit of defendants though was dismissed but, the plaintiff admitted that it was restored to its original position---Moment the suit of defendants was restored to its position the root (cause of action) of the suit of the plaintiff lost its place thereby brining superstructure to ground---For a relief of damages for frivolous cases one would be required to prove co-existence of three essentials i.e. initiation of litigation; it being causeless and mala fide; and it should have been ended in favour of plaintiff---Restoration of dismissed suit was sufficient to wash away all claims regarding said three essentials which might be alleged/pleaded in a suit, even which has been dismissed for non-prosecution---Relief of the possession and mesne profit was subject to determination of the suit of defendants particularly when in said suit defendants (plaintiffs in that suit) claimed possession under inheritance---Thus, the plaintiff could not legally sustain a claim for such reliefs till a proper time nor plaintiff could legally file a suit the cause of action for which had ceased---Suit of the plaintiff was not sustainable and was dismissed accordingly.

Plaintiff is present.

Ex parte for Defendants.

2024 M L D 608

[Sindh]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

Ramesh Kumar---Appellant

Versus

The State---Respondent

Special Criminal Anti-Terrorism Jail Appeal No. 14 of 2022, decided on 8th February, 2023.

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

---Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Recovery of explosive substance, act of terrorism---Appreciation of evidence---Benefit of doubt---Safe custody of the explosive substance not established---Effect---Prosecution case was that recovered hand grenades were handed over to the In-charge Malkhana of the Police Station---SHO (head of raiding party) had failed to produce entry of Malkhana to satisfy the Court that in fact he had kept hand grenades at the Malkhana in safe custody---Explosive substance was sent to the expert after 03 days without explaining the delay---Record reflected that hand grenades were handed over to one ASI, who had also not been examined by the prosecution---There was clear overwriting in the date mentioned in the Clearance Certificate produced (duly exhibited) by the prosecution, and for the overwriting in date no explanation had been submitted---Prosecution had failed to establish safe custody of the explosive substance at police station and its safe transmission to the expert---Circumstances established that the prosecution had failed to bring home the guilt of accused---Appeal against conviction was allowed, in circumstances.

Kamaluddin alias Kamala v. The State 2018 SCMR 577 ref.

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

----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 25 ---Recovery of explosive substance, act of terrorism---Appreciation of evidence---Benefit of doubt---Police Officials as witnesses---False implication, plea of---Prosecution case was that two hand grenades were recovered from the accused after a raid based on spy information---No doubt, evidence of the Police Officials cannot be discarded simply because they belonged to police force; however, where the fate of the accused persons hinges upon the testimony of Police Officials alone, it is necessary to find out if there is any possibility of securing independent persons at the time---In the present case, SHO had prior information, it was not difficult for him to call independent persons but he deliberately avoided to do so---No reliance can be placed upon the evidence of the Police Officials without independent corroboration, which was lacking in the present case, particularly, when appellant/ accused in his statement recorded under S. 342, Cr.P.C., had claimed false implication---In said circumstances, evidence of the police officials without independent corroboration would be unsafe for maintaining the conviction---Judicial approach has to be cautious in dealing with such evidence---Circumstances established that the prosecution had failed to bring home the guilt of accused---Appeal against conviction was allowed, in circumstances.

Saifullah v. The State 1992 MLD 984 ref.

(c) Criminal trial---

---Benefit of doubt---While giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt---If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right---It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".

Tariq Pervez v. The State 1995 SCMR 1345; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Zaman v. The State 2014 SCMR 749 ref.

Habib-ur-Rehman Jiskani for Appellant.

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

Date of hearing: 8th February 2023.

Judgment

NAIMATULLAH PHULPOTO, J.---This Special Criminal. Anti-Terrorism Jail Appeal is directed against judgment dated 14.12.2021, passed by learned Judge, Anti-Terrorism Court-XII, Karachi in Special Case No.344 of 2021 (FIR No.187/2021 under section 4/5 Explosive Substance Act, 1908 read with Section 7 of ATA, 1997 PS Airport, Karachi). After regular trial, appellant was convicted under section 4 of the Explosive Substances Act, 1908 and sentenced to undergo 07 years R.I, he was further convicted under section 5 of the Explosive Substances Act, 1908 and sentenced to undergo 07 years' R.I.

1. Brief facts leading to the filing of the appeal are that on 12.07.2021, SHO Kaleem Khan Moosa of PS Airport left PS vide Roznamcha No.34 at about 1715 hours along with subordinate staff for patrolling when police party reached at Bhitai Abad, main Bazar at about 2320 hours, where police officials received spy information that one person was standing at Funnel area, Airport in suspicious condition. Police party on said information proceeded to the pointed place where saw present accused. He was carrying a black color school bag and was apprehended at 2330 hours. On inquiry, appellant disclosed his name as Ramesh Kumar son of Ram Chand. Due to non-availability of private persons, SIP Syed Muhammad Shoaib and WHC Malik Zaheer Awan were made as mashirs and personal search of the school bag was conducted. From the bag, two hand grenades were recovered, one was bearing No. 65-2006 and another 80-2006. Explosive material in the shape of white color powder was also recovered, it was 1280 grams. Mashirnama of arrest and recovery was prepared. Thereafter, accused and case property were brought to the police station where FIR bearing Crime No.187/2021 under sections 4/5 Explosive Substances Act, 1908 read with Section 7 of ATA 1997 PS Airport, Karachi was registered against the appellant on behalf of the State. BDU team was called for defusing the explosive material at police station.

2. Case property was handed over to Head Moharer at Malkhana of police station. In the morning, at about 0805 hour, I.O inspected place of incident and prepared such mashirnama in presence of mashirs. I.O recorded 161, Cr.P.C statements of the P.Ws. Explosive substance was defused by BDU. On conclusion of usual investigation, final report was submitted against the appellant/accused under the above referred sections.

3. Trial court framed charge against the appellant/accused at Ex.3, he pleaded not guilty and claimed to be tried.

4. At trial, prosecution examined five P.Ws, who produced report of the expert and relevant record. Thereafter, prosecution side was closed.

5. Trial court recorded statement of accused under section 342, Cr.P.C at Ex.10, in which, appellant claimed his false implication in this case and denied the prosecution allegations. Accused raised plea that he was arrested from Hope Garment Factory Korangi Karachi. Appellant neither examined himself on oath under section 340(2), Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defence.

6. Trial Court after hearing the learned counsel for the parties and assessment of evidence vide judgment dated 14.12.2021, convicted and sentenced the appellant as stated above. Hence, the appellant has filed instant appeal against his conviction and sentence recorded by the trial Court.

7. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 14.12.2021 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Learned advocate for the appellant mainly argued that it was case of spy information and police officials had sufficient time to call independent and respectable persons of the locality at the time of arrest and recovery of the hand grenades from him; that it was night time incident, source of light is not mentioned and element of terrorism is missing in this case; that Head Moharer of police station has been examined but he has failed to produce relevant Roznamcha entry of the malkhana to prove safe custody and safe transmission of the explosive substance to the expert; that there is overwriting in the date of Clearance Certificate of BDU. Lastly, it is submitted that prosecution has failed to prove its' case against the appellant and prayed for acquittal of the appellant. In support of his contentions, reliance has been placed upon the cases reported as Shahnawaz and another v. The State (2020 PCr.LJ 134) and Tariq Pervez v.. The State (1995 SCMR 1345).

9. Mr. Muhammad Iqbal Awan, Additional Prosecutor General, argued that prosecution has proved its' case against the appellant and no material contradiction in the evidence of the P.Ws has been brought on record; that police officials had no enmity whatsoever against the appellant to falsely implicate him in this case. As regards to the overwriting in the date of Clearance Certificate, it is submitted that overwriting is there but no mala fide could be attributed to the BDU. Lastly, it is submitted that evidence with regard to the safe custody and safe transmission of explosive substance has not been produced before trial Court. However, Addl. P.G has prayed for dismissal of the appeal.

10. We have carefully heard the learned counsel for the parties and re-examined the entire evidence available on record.

11. We have come to the conclusion that prosecution has failed to prove its' case against the appellant for the reasons that SHO had failed to associate with him private persons to witness recovery proceedings. It is case of the prosecution that hand grenades were handed over to the Incharge Malkhana of the police station but he has failed to produce entry of Malkhana to satisfy the Court that in fact he had kept hand grenades at the Malkhana in safe custody, explosive substance was sent to the expert after 03 days without explaining the delay. Record reflects that hand grenades were handed over to ASI Amanat Ali, he has also not been examined by the prosecution. Clearance Certificate produced by the prosecution at Ex4/D, there is clear overwriting in the date. Learned Addl. P.G could not explain about the overwriting in date. On our minute examination, the prosecution has utterly failed to establish safe custody of the explosive substance at police station and its safe transmission to the expert. Honourable Supreme Court in the case of Kamaluddin alias Kamala v. The State (2018 SCMR 577) has laid down the following principle:

"4. As regards the alleged recovery of a Kalashnikov from the appellant's custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulged before the trial court that the recoveries relied upon in this case had been effected by Ayub, Inspector in an earlier case and, thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission.

1. As regards the evidence of the police officials is concerned, no doubt, evidence of the police officials cannot be discarded simply because they belong to police force; however, where the fate of the accused persons hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at the time. In the present case, SHO had prior information, it was not difficult for him to call independent persons but he deliberately avoided. No reliance can be placed upon the evidence of the police officials without independent corroboration, which is lacking in this case, particularly, when appellant/accused in his statement recorded under Section 342, Cr.P.C. has claimed false implication in this case. In these circumstances, evidence of the police officials without independent corroboration would be unsafe for maintaining the conviction. Judicial approach has to be cautious in dealing with such evidence, as held in the case of Saifullah v. The State (1992 MLD 984 Karachi). Relevant portion is reproduced as under:-

"8. The evidence of police officials cannot be discarded simply because they belong to police force. In Qasim and others v. The State reported in PLD 1967 Kar. 233, it was held:

"A police officer is as good a witness as any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged."

2024 M L D 617

[Sindh (Sukkur Bench)]

Before Yousuf Ali Sayeed, J

Noor Muhammad through attorney and others---Applicants

Versus

Allah Warayo and others---Respondents

Civil Revision Nos. 87 to 95 of 2012, decided on 16th March, 2018.

(a) Void order---

----Mere irregular, incorrect, erroneous or illegal order does not necessarily fall within the conception of term "Void".

Muhammad Swaleh v. United Grain Fodder Agencies, PLD 1964 SC 97 and Land Acquisition Collector, Nowshera and others v. Sarfaraz Khan and others, PLD 2001 SC 514 rel.

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

---S. 115---Limitation Act (IX of 1908), S. 5---Revision---Limitation---Condonation of delay---Applicants assailed orders passed by Lower Appellate Court beyond period of limitation--- Validity--- Applicable period of limitation was prescribed in terms of S. 115, C.P.C., itself rather than under Limitation Act, 1908--- High Court declined to condone delay as revision application filed by applicant was barred by limitation by a period of delay that exceeded well beyond that portrayed for the purpose of condonation---Provision of S. 5 of Limitation Act, 1908, was inapplicable---Revision was dismissed, in circumstances.

Allah Dino and others v. Muhammad Shah and others 2001 SCMR 286 and Hafeez Ahmed and others v. Civil Judge, Lahore and others PLD 2012 SC 400 rel.

Applicant through attorney in person (in C.R. Nos. 87, 88, 89, 91,92, 93 and 95 of 2012).

Applicant in person (in C.R. Nos. 90 and 94 of 2012).

Aftab Ahmed Channa for Respondent (in C.R. Nos. 87 to 95 of 2012)

Date of hearing: 16th March, 2018.

Judgment

YOUSUF ALI SAYEED, J.---These Revision Applications all proceed on an identical footing in terms of assailing the Orders of the learned Vth Additional Sessions Judge, Sukkur in Appeal Number 91 and 93 of 2011 and Appeal Numbers 23 to 29 of 2012 preferred by the present Applicants against the Orders of the learned 1st Civil Judge, Pano Aqil in Suit Numbers 21 and 22 of 2007 and Suit Numbers 11 to 17 of 2008 instituted by the Applicant, whereby the Applications under Order VII, Rule 11, C.P.C., filed in each of the aforementioned Suits by the respective Respondents were allowed.

1. Upon the presentation of these Revision Applications, the office had raised a preliminary objection as to maintainability thereof on the point of limitation, in as much as the Impugned Orders of the Appellate forum in Appeals Number 91 and 93 of 2011 were made on 11.01.2012 and in Appeals Numbers 23 to 29 of 2012 on 18.01.2012, whereas the instant Revisions came to be presented on 08.08.2012, well beyond the period of 90 days prescribed in terms of Section.115 C.P.C.

2. In response to this objection it was simply contended by the Applicant in Civil Revision No. 90 /2012, who appeared in person for himself and in his purported capacity as attorney of the Applicants in other connected matters, that the law of Limitation would not apply when an order was void, as was alleged to be so in the case of the underlying Orders made by the learned Civil Judge on the Applications under Order VII, Rule 11 C.P.C. in the matters at hand, and that, alternatively, even if the same were applicable, the delay could be condoned under the provisions of the Limitation Act, 1908, for which purpose separate applications had been filed. As to the period of delay, it was pointed out that the certified copies of the Appellate Orders had been made available on 16.05.2012 and the Revision Applications had then been presented on 08.08.2012, and it was contended that in view of the intervening delay in provision of certified copies, the period of limitation had then lapsed during the period of summer recess of the Court and when the matter was viewed in that perspective the period of delay was only two days, as the date of presentation was said to be two days after the opening day.

3. Turning firstly to the argument that no limitation runs against a void order, whilst there are numerous judicial pronouncements to that effect, in as much as such an order is non-existent in the eyes of law, it is important to consider whether in terms of the well settled principles enumerated on that point, the Impugned Order of the Appellate Court in these Revisions, which is the relevant order for purposes of limitation, can be characterized as void or as a nullity in law.

4. In this regard, it is axiomatic that there is a clear a distinction between an illegal order and a void order, for whilst every void order would certainly be illegal, every illegal order would not necessarily be void. According to Black's Law Dictionary, the term "void" means null, ineffectual, nugatory, having no legal force or binding effect, unable in law.

5. Whilst orders passed without lawful authority, without jurisdiction, or against the principles of natural justice may be void, every order made by a competent judicial forum that suffers from some error cannot necessarily be so regarded. The distinction was explained by the Honourable Supreme Court in Muhammad Swaleh v. United Grain Fodder Agencies, PLD 1964 SC 97, with reference to the grounds of revision set out in section 115, C.P.C. Their lordships observed that when a Court or a Tribunal assumes jurisdiction not vested in it by law or fails to exercise jurisdiction so vested, its order may be void and a nullity in law. However, when it acts illegally or with material irregularity in the exercise of its jurisdiction, the ensuing order may be voidable but would not be void.

6. In the case of M/s. Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599, it was stated by the apex Court that :-----

"....we would observe that a void order or an order without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. And, further, the expressions "void orders" and "orders without jurisdiction" are overworked expressions." (at Page 601 D)

1. Subsequently, in the case of Land Acquisition Collector, Nowshera and others v. Sarfaraz Khan and others, PLD 2001 SC 514, it was observed by the Honourable Supreme Court that:

"It is settled law that the bar of limitation would not operate in respect of void orders but not in respect of erroneous orders. The question of limitation may not, therefore; arise in respect of a judgment which is a nullity in law, void or ultra vires the statute or the constitution. In point of fact, if an order is without jurisdiction and void, it need not even be formally set aside as has been held in the cases of Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37 and Ch. Altaf Hussain and others v. The Chief Settlement Commissioner PLD 1965 SC 68." (at Page 517 A)

1. It is evident from the aforementioned precedents that a mere irregular, incorrect, erroneous or illegal order does not necessarily fall within conception of the term "void", and that the law of limitation would apply to such orders.

2. In the instant case, the only argument advanced in support of the submission regarding limitation is that the earlier Orders of the learned Civil Judge made under Order VII, Rule 11 are void. In my view, this has no bearing on the aspect of limitation in as much as such matter is to be reckoned with reference to the Order of the Appellate forum rather than that of the Court of first instance. Needless to say, the Appellate Court was certainly fully competent to adjudicate upon the subject matter of the proceedings and to make the Orders that have since come to be impugned through these Revision Applications. No assertion to the contrary has even been made by the Applicants in this regard.

3. It need scarcely be mentioned that it is imperative for the proper working of any system of justice that in a context such as the one at hand a party aggrieved by an order passed by a competent judicial forum be required to assail such order in a timely manner through appropriate proceedings, as prescribed, and cannot be allowed to escape the consequence of his own indolence and circumvent limitation by recourse to a plea that the order sought to be questioned is void and hence is not subject to any statute of limitation.

4. In view of the foregoing discussion, it is apparent that the line of argument taken by learned counsel for the Appellant is misconceived, and that the period of limitation prescribed under Section 115, C.P.C. would be applicable.

5. Turning now to the question of the period of delay and whether the same can and ought to be condoned, in terms of the supporting miscellaneous Applications under the Limitation Act it was contended that the period of delay was only of two days in as much as the period of limitation had lapsed during the summer recess of this Court and that instead of presenting the Applications on the opening day, the same had been presented two days thereafter due to the ill health of the attorney of the Applicants. It was submitted that such delay could and ought to be condoned.

6. Hypothetically, even if for the sake of argument the aforementioned plea is assumed to be valid, the same is evidently fallacious in as much as all of the Revisions, barring one, have been filed on behalf of the named Applicants through the purported attorney, and whilst his status and competence to act in such capacity was brought into question before the Appellate forum, and indeed found not to have been satisfactorily established, hence the dismissal of the Appeals, the ground taken in the Affidavits filed in support of these miscellaneous Applications seeking condonation of delay in each of these Revisions is the ill-health of the said attorney, whereas the Applicants themselves were apparently not under any disability and could thus have acted with due diligence, nor has any averment even been made to the contrary.

7. Moreover, when this aspect is examined in further depth, it comes to the fore that the contention as to lapse of limitation during the period of recess/vacation is itself misconceived if not mala fide, in as much as it is apparent from the stamp on the certified copies of the Impugned Orders of the Appellate Court filed and relied upon by the Applicants in the respective Revisions that whilst the Impugned Orders of the Appellate forum in Appeals Numbers 91 and 93 of 2011 were made on 11.01.2012 and in Appeals Numbers 23 to 29 of 2012 on 18.01.2012, the applications for certified copy had been submitted by the attorney of the Applicant on 14.03.2012, and that whilst cost was estimated on 19.03.2012, stamps were belatedly supplied by the Applicants on 16.05.2012. Whilst the copying stamp on each of the certified copies filed by the Applicants in the respective Revisions appear to have been tampered, apparently with the motive of ostensibly providing a foundation for the plea as to lapse of the period of limitation within the vacation period, be that as it may, even if such certified copies are accepted and relied upon, it is evident for the reasons aforementioned that the period of limitation had continued to run against the Applicants due to the delay in applying for certified copies and the default on their part in supply of stamps, and had thus already lapsed prior to the date on which the certified copies were eventually made ready following supply of stamps. As such, the period of delay extends well beyond the period of two days in respect of which condonation had been sought in terms of the miscellaneous Applications filed in the respective Revisions.

8. Furthermore, as regards these Applications seeking condonation, it has to be borne in mind that the applicable period of limitation is prescribed in terms of S.115 C.P.C. itself rather than under the Limitation Act, and it merits consideration that in the judgment reported as Allah Dino and others v. Muhammad Shah and others 2001 SCMR 286, the Honourable Supreme Court has held as follows:-

2024 M L D 635

[Sindh]

Before Muhammad Junaid Ghaffar, J.

Imran Khalid---Petitioner

Versus

Mst. Munazza Rizvi and another--- Respondents

Constitution Petition No. S-341 of 2023, decided on 16th September, 2023.

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

---Ss. 16(1) & 16(2) ---Tentative rent order, non-compliance of---Effect---Relationship of landlord and tenant, denial of---Contention of the petitioner/tenant was that property-in-question was purchased by his uncle who put him in the possession for which civil suit was also pending adjudication---Validity---While passing a tentative rent order , the Rent Controller was not required to hold a full-fledged enquiry and could always pass such an order after taking into consideration the versions of the parties---In the present case, the Rent Controller had come to the conclusion that there was an agreement between the parties as periodical payment of rent and utility bills had been made, duly supported by the bank statement which prima facie established a relationship of landlord and tenant---As such, mere assertion/contention of the petitioner to the contrary( denial of relationship of landlord and tenant and pendency of civil suit) on one pretext or other was immaterial---In case of failure of compliance of a tentative rent order , the right of defense could be struck off under S. 16(2) of the Sindh Rented Premises Ordinance, 1979--- Mere institution of civil suits, per se, would not be sufficient to refuse compliance of a tentative rent order of the Rent Controller pending final determination and no exception to said settled principle of law had been made out---Impugned order only required deposit of the rent-in-question with the Court and could not be paid to the respondent until the case was decided , thus, the petitioner was required to have complied with the tentative rent order , which could be adjusted / substituted by the final order on the determination of issues, whereas any avoidance and breach of the order-in-question, entailed penalty of striking off of his defence--- Said statutory penalty could not be avoided unless good reasons were given and sustained--- Constitutional petition filed by the tenant, being meritless, was dismissed, in circumstances.

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

----S. 16(1)---Constitution of Pakistan Art. 199---Tentative rent order , assailing of---Constitutional petition---Maintainability---Relationship of landlord and tenant, denial of---Tenant invoked constitutional jurisdiction of the High Court against tentative rent order passed by the Rent Controller---Held, that practice of challenging interlocutory orders of the Rent Controller had been deprecated time and again as constitutional petitions against the same were not maintainable notwithstanding that no remedy of appeal had been provided against such orders , which would not ipso facto make such petitions competent---Constitutional jurisdiction of the High Court was equitable and discretionary in nature and should not be exercised to defeat or bypass the purpose of a validly enacted statutory provision---No case of indulgence was made out---Constitutional petition against the interlocutory order was not maintainable---Constitutional petition filed by the tenant, being meritless, was dismissed, in circumstances.

Seema Begum v. Muhammad Ishaque PLD 2009 SC 45 and President All Pakistan Women Association v. Muhammad Akbar Awan 2020 SCMR 260 ref.

Muhammad Daud Narejo and Muhammad Sharif Dars for Petitioner.

Ms. Naushaba Haque Solangi, Assistant Advocate General and Haider Bakhsh, for Respondents.

Order

Muhammad junaid ghaffar, J.---Through this Petition, the Petitioner has impugned order dated 09.03.2023 passed by the Rent Controller, Malir Karachi, whereby, the application filed by Respondent No. 1 under Section 16(1) of the Sindh Rented Premises Ordinance, 1979 ("Ordinance") has been allowed. On 18.5.2023, an order to maintain status quo was obtained by the Petitioner.

Today, at the very outset, the Petitioner's Counsel has been confronted as to maintainability of this Petition against an interlocutory / tentative rent order under Section 16(1) Ordinance and in response, he, by placing reliance on certain reported cases has contended that the relationship of landlord and tenant was denied; hence, no such order could have been passed.

2024 M L D 644

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

Faiz Muhammad and others---Applicants

Versus

Province of Sindh through Secretary, Revenue Department and others---Respondents

R.A No. 81 of 1998, decided on 2nd June, 2022.

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

----Ss. 42 & 54---Suit for declaration and injunction---Plaintiffs claiming that they acquired permanent rights in respect of land cultivated by them and their names were entered in revenue record as owner thereof---Respondents contended that the plaintiffs had not cultivated the land and had arranged false entries in the record with the connivance of village staff---Trial Court dismissed the suit whereas the appeal was also dismissed---Validity---Record showed that earlier order passed by the District Officer, Revenue sanctioning special "Hameshgi Yadasht" was passed without hearing the defendants and without considering the objections, it definitely was against the principles of natural justice and thus illegal and void and not sustainable in law---In case an impugned order was illegal and void, no limitation would run against such order---However, such point was only to be appreciated by Revenue Tribunal but the Executive District Officer, Revenue, had not discussed it in its order---Law favour adjudication on merits and procedural technicalities could not be allowed to stand in the way of administration of justice---In the plaint it was pleaded that Mukhtiarkar issued Ijazatnama to the plaintiffs after recovering malkana from them---Ijazatnama had been issued under the order of Deputy Commissioner which was always subject to appeal and revision and could not be considered as final---Since the order of Deputy Commissioner stood set-aside by a legal and valid order of the competent revenue tribunals, the plaintiffs could not be deemed to be owners of the suit land---Judgments of both the Courts below did not show any illegality or irregularity rather both were based upon material available on record--- Courts below while delivering their judgment/order had given cogent and sound reasons and there appeared no error, illegality or irregularity on the surface to call for any interference and no misreading and non-reading of evidence was apparent---Revision petition was dismissed accordingly.

Abdul Razzak v. Shabnam Noonari and others 2012 SCMR 976 rel.

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

----Ss. 42 & 54---Suit for declaration and injunction---Defendants not appearing as witnesses---Scope---Plaintiffs claimed that they acquired permanent rights in respect of land cultivated by them and their names were entered in revenue record as owner thereof---Respondents contended that the plaintiffs had not cultivated the land and had arranged false entries in the record with the connivance of village staff---Trial Court dismissed the suit whereas the appeal was also dismissed---Validity---Record showed that the defendants examined two witnesses in support of their pleas but defendants themselves did not enter in the witness box to depose what had been placed in their written statement---Had the relevant defendants been examined, then the evidence of said witnesses could be termed as supporting evidence---Said witnesses were neither party in the suit nor their plea was on record---Said witnesses could not establish plea of defendants, when they themselves had failed to appear as witness at trial, their written statement could not be treated as substantive piece of evidence---Pleas of defendants raised in the written statement therefore could not be relied upon---Site inspection report was also not a substitute for evidence as its author was not examined---Evidence was vague one and was of no help to defendants---Defendants thus failed to discharge their burden---Revision petition was dismissed.

PLD 1988 Kar. 460 rel.

None present for applicants.

Ms. Aneela Firdous for Respondents.

Allah Bachayo Soomro, Addl.A.G.

Judgment

ZULFIQAR AHMAD KHAN, J.---Through captioned Civil Revision Application, the Applicant has called into question the Judgment and Decree dated 25.4.1998 and 30.04.1998 respectively passed by learned District Judge, Tharparkar at Mithi in Civil Appeal No.5 of 1995, whereby the Appeal was dismissed and judgment and decree dated 17.04.1995 passed by Senior Civil Judge, Mithi in F.C. Suit No. 40 of 1980 was maintained.

1. Brief facts of the case as per memo of plaint are that applicants filed F.C. Suit No. 40 of 1980 against respondents for declaration and injunction. The case of applicants before the trial court was that applicant / plaintiff No.1, predecessor-in-interest of applicants Nos. 2 and 3 and so also the co-applicants / plaintiffs brought under cultivation pieces of government waste land in their respective makans in the year 1966-67 which were subsequently entered in their names in the record of rights, thus they became entitled to have their cultivated land brought on "Hameshgi Yadasht" for conferment of permanent rights. The subordinates of respondents 1 to 4 prepared "Hameshgi" which included land cultivated by the applicants and submitted the same to respondent No.4 for approval who by his two orders dated 30.10.1976 sanctioned the "Hameshgi Yadasht" and forwarded the same to Assistant Commissioner under his No.R-4834 dated 4.11.1976. The same were passed by Mukhtiarkar Diplo who issued "Ijazatnama" in favour of applicants after recovering "Malkana" (consideration) from them. The applicants thus acquired permanent rights in respect of land cultivated by them and their names were entered in Revenue record as owners thereof.

2. That respondents 5 to 8 filed time barred appeal before respondent No.3 where the applicants appeared and objected to the maintainability of the appeal as well as challenged his jurisdiction but who without adverting to the question of limitation allowed the appeal vide order dated 8.2.1979 and remanded the case to respondent No.4 for fresh decision. The said order was challenged by applicants before respondent No.2 but they failed, hence they filed the suit with following prayer:-

(a) Declaration that the order passed by defendant No.3 and subsequently upheld by defendant No.2 are illegal, void, malafide and without jurisdiction. The same are incapable of being acted upon by defendant No.4 and consequently the plaintiffs continue to be owners of the suit land by virtue of Ijazatnama issued in their favour.

(b) Injunction restraining defendant No.4 from acting on illegal and void orders of defendants Nos.2 and 3 in respect of suit land comprising K.Nos. 123, 124, 45, 47, 43, 46 and 44 situated in deh Sedio Taluka Diplo District Tharparkar.

1. Upon service respondents 5 to 8 appeared and filed written statement whereas respondents 1 to 4 remained absent. Respondents 5 to 8 in their written statement inter alia contended that the applicants had not cultivated the land and have arranged false entries in the record with the connivance of village staff. They further stated that the disputed pieces falling in their Makan visriabah, were cultivated by makani Abadgars Hussain, Miro, Latif, Mobin and Ahmed; besides above they also raised legal pleas.

2. On the pleadings of the parties learned trial court framed following issues:-

3. Whether the orders passed by defendants Nos.2 and 3 are illegal and mala fide ?

4. Whether the plaintiffs are owners on the basis of Ijazatnama?

5. Whether the orders of defendant No.4 is illegal in respect of suit land?

6. Whether the plaintiffs have not cultivated the suit land?

7. Whether the plaintiffs have arranged to manipulate the revenue record of the suit land?

8. Whether the defendants have Hameshgi Yadasht?

9. Whether the suit is not maintainable?

10. Whether the suit is bad for non-joinder of necessary parties?

11. What should the Decree be?

12. In order to settle the above issues learned trial court recorded the evidence of both the sides and after hearing the arguments of their counsel dismissed the suit vide Judgment dated 17.4.1995. The applicants against the above Judgment preferred appeal which was also dismissed vide Judgment dated 25.4.1998 maintaining the Judgment of trial court; the applicants therefore, challenging the above judgments of the lower courts filed the instant Civil Revision Application.

13. None present for applicants.

14. Learned counsel for respondents submits that this Revision Application has been filed against the concurrent findings of the courts below and all efforts have been made to bring forward any one to represent the applicant, which remains failed since 2016 when their counsel stated that he has lost contact with his clients..

15. It appears that after obtaining a stay order on 17.08.1998 none has effectively appeared to pursue this matter and this case is accordingly heard on merits on the basis of available record as well as with the assistance of counsel for respondents as well as learned A.A.G.

16. For considering the case of applicants on merits this court scanned by judgments of both the courts below. Before the trial court the applicants raised three questions i.e. the appeal before defendant No.3 was time barred and that there being no proper application, the same could have been condoned; that there was no explanation of delay in filing the appeal before defendant No.3. In reply to the above questions learned trial court has observed that these points were not raised in the plaint or evidence but have been raised in arguments after coming on record the condonation application and affidavit by plaintiff's own witness Noor Muhammad Clerk of office of Additional Commissioner, and when the counsel for applicants realized that the application for condonation of delay was on the record and duly supported by an affidavit, he then taken the other pleas which were not so taken neither in the plaint nor in evidence; therefore, the same were considered being out of pleadings; the assertion made by plaintiffs in their plaint that the objection raised by them on point of limitation was overruled does not find place in the order itself recorded by the learned Additional Commissioner. Even the perusal of order of defendant No.2 does not show that the plaintiffs had raised any such plea of limitation before him. The plaintiffs themselves having not raised the plea of limitation, though they were being represented by their counsels, they cannot assail the orders of defendants 2 and 3 on such grounds.

2024 M L D 656

[Sindh (Larkana Bench)]

Before Arbab Ali Hakro, J

Sukhio Khan and others---Applicant

Versus

Ali Nawaz and 4 others---Respondents

Civil Revision Application No. S-91 of 2021, decided on 17th August, 2023.

Specific Relief Act (I of 1877)---

---Ss. 12, 42 & 54---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for specific performance of agreement to sell, declaration and injunction---Rejection of plaint---Issues framed---Factual controversy---Plaint filed by petitioner/plaintiff was rejected by Trial Court and Lower Appellate Court for want of cause of action when the case was fixed for recording of evidence---Validity---Once application was made under O. VII, R. 11 C.P.C., in a suit, it became responsibility of Court to independently determine all relevant legal inquiries, including whether the suit was barred by law or if the plaint disclosed a cause of action---Trial Court rejected plaint while considering a subsequent application under O. VII, R. 11, C.P.C., contravening prevailing legal provisions---Omission of both the lower Courts regarding their failure to acknowledge that it would not be justifiable to reject the plaint when parties were at variance of factual issues, especially considering that the case had been scheduled for presentation of evidence---Once issues are framed and Court has entered upon recording of evidence, matter has to be taken its logical end instead of summary disposal---High Court set aside orders passed by two Courts below as both the Courts below committed material irregularity and illegality while rejecting plaint of petitioner/plaintiff under O. VII, R. 11, C.P.C---High Court remanded the matter to Trial Court to conduct trialin accordance with law and decide the same on merits on the basis of evidence recorded during trial---Revision was allowed accordingly.

2022 SCMR 1898; 2020 CLD 1329; 2018 MLD 918; 2019 CLC 2083; 2016 MLD 1394; PLD 2009 Karachi 38; 2004 YLR 1113; unreported Order dated 29.7.2020; passed by apex Court in C.P No.1425-K of 2018 in the case of Sikandar Ali and others v. Badaruddin and others. 2023 SCMR 344; PLD 1967 Dacca 190; 2004 A.C 863 and 2009 MLD 538 ref.

Muhammad Boota and another v. Moor Begum and 2 others PLD 2002 SC 74; Muhammad Sattar and others v Tariq Javaid and others 2017 SCMR 98; Nigar Pictures, Karachi v. United Brothers, Lahore PLD 1970 Karachi 770; Shushilendra Pal Singh v. Kailash Chand Bhargava AIR 1945 Allahabad 395 and Pratapchand v. Raghunath Rao AIR 1937 Nagpur 243 rel.

Waqar Ahmed A. Chandio for Applicant.

Abdul Rehman A. Bhutto for Respondents Nos. 1 and 2.

Abdul Waris Bhutto, Assistant Advocate General for Respondents Nos. 3 to 5.

Date of hearing: 26th May, 2023.

Judgment

ARBAB ALI HAKRO, J:---Through this Revision Application under Section 115, The Code of Civil Procedure 1908 ("the Code"), the applicant has called in question the Judgment and Decree dated 17.8.2021, passed by the Court of III-Additional District Judge (MCAC), Larkana ("the appellate Court") whereby, an appeal preferred by the applicant was dismissed, consequently the Order dated 30.3.2021, passed in F.C Suit No.36/2019 by IV-Senior Civil Judge, Larkana ("the trial Court") rejecting the plaint under Order VII R 11 of the Code was maintained.

1. In brief facts, the applicant/plaintiff filed a suit for Declaration, Specific Performance of Contract and Permanent Injunction, claiming that the respondents/defendants Nos. 1 and 2 collectively own agricultural land bearing Survey Nos. 217, 408, 226/3, 408, 336/3, 290 and 216/2, spanning across 14 Jarebs situated in Deh Khacharpur, Tapa Veehar Taluka Dokri ("the suit land"). These respondents sold the suit land to the applicant through a Sale Agreement executed on 05.12.2018. The purchase price was agreed upon as Rs. 40,00,000/-. As a partial fulfilment of the contractual obligations, the applicant paid an amount of Rs. 25,00,000/- to respondents Nos. 1 and 2 in the presence of witnesses. The remaining sum was intended to be paid through subsequent instalments; upon successfully harvesting the wheat crop, the respondents shall be obligated to execute the registered sale deed per the stipulations outlined in the contract. Subsequently, possession of the suit land was duly transferred to the applicant. The agreement in question was officially documented in written form in the presence of witnesses on 05.12.2018. From that point forward, the applicant has maintained uninterrupted possession and utilisation of the suit land without encountering any objections or conflicts from any party involved. The applicant further contends in the plaint that under the terms of the agreement, they harvested a wheat crop in May 2019. Following this, the applicant approached respondents Nos.1 and 2 on multiple occasions. However, the respondents/defendants intentionally misled the applicant with false promises and attempted to sell the suit land to a third party. As a result, the applicant filed suit claiming the following reliefs: -

a) That this Honourable Court may be pleased to declare that Act of defendants Nos.1 and 2 of refusing to execute the registered sale deed is illegal, null, void and without lawful justification.

b) That this Honourable Court may be pleased to direct defendants No.1 and 2 to execute the agreement to sell dated 05.12.20218 in part performance of contract by executing register sale deed; in case of refusal, this Court may order for specific performance of agreement and direct the Nazir of this Honourable Court to execute the register sale deed in favour of plaintiff. The plaintiff is ready to deposit the remaining balance amount of Rs.1500000 (fifteen lac rupees only).

c) To direct defendants Nos.1, 2 and 3 not to further register any document and mutate the record of right of suit property creating third party interest and further direct the defendants Nos.1 and 2 not to interfere in the suit property and issue threats to plaintiff for his dispossession from suit property, till decision of this suit.

d) Costs of the suit.

e) Any other relief deems fit and proper awarded to the plaintiff.

1. Upon service of summons, respondents Nos.1 and 2 contested the suit and filed their Written Statement, wherein they denied entering into a sale agreement with the applicant. Furthermore, the defendants have posited legal contentions asserting that the suit lacks maintainability, is time-barred, and the applicant has no cause of action. They also submitted an application under Order VII Rule 11 of the Code read with Section 151 of the Code ("earlier application"), contending that the suit is barred by law and the plaint does not show a cause of action. On 24.9.2019, the applicant submitted preliminary objections to the aforementioned application. After deliberating upon the arguments presented by the parties, the trial court granted the previous application and dismissed the applicant's claim through an Order dated 15.10.2019. Subsequently, the applicant preferred Civil Appeal No. 128/2019, which was subsequently allowed by the appellate Court through its Judgment and Decree dated 29.11.2019; as a result, the suit was remanded back to the trial Court for further proceedings, with explicit instructions to adjudicate the case in accordance with legal norms.

2. Thereafter, from the divergent pleadings of the parties, the trial Court formulated the following issues: -

i. Whether the suit is not maintainable?

ii. Whether defendants Nos. 1 and 2 entered into sale agreement dated 05.12.2018 for sale of suit property to plaintiff in the sum of Rs.40,00,000/-, received Rs.25,00,000/- and delivered him possession but refused to go for registration after taking wheat crop, as agreed? (OPP)

iii. Whether the plaintiff is entitled to the relief claimed? (OPP)

iv. Result?

1. After framing of above issues, the trial Court fixed the case for the presentation of evidence. However, respondents Nos. 1 and 2 have requested to make amendments/additions to their written statement by filing an application under Order VI Rule 17 of the Code. When the applicant received notice, he submitted his objections to the abovementioned application. After considering the arguments presented by both parties, the trial court dismissed the application on 07.12.2020. Respondents 1 and 2 challenged this decision through Civil Revision Application No. 51 of 2020. The Additional District Judge-III (MCAC) Larkana heard Civil Revision and, on 25.01.2021, allowed the revision with direction to respondents Nos. 1 and 2 to make amendments to their written statement in the appropriate place. The applicant claims that respondents Nos. 1 and 2 did not amend their written statement as per Order but instead submitted a completely new amended written statement along with an application under Order VII Rule 11 of the Code ("subsequent application"). in order to facilitate ease of reference, the grounds mentioned in the abovementioned application for rejection of the plaint are replicated below: -

i. That, from averments of the plaint, a suit is barred by law and not maintainable, not filed with clean hands.

ii. That, from averments of the plaint, a present suit cannot be entertained and is liable to be dismissed, including on the ground of suppression of facts and misstatement knowingly.

iii. That, the plaintiff has not produced any title documents, as the plaintiffs have filed the present suit based on forged and managed documents which cannot create their right and title or locus-standi.

iv. , it is a settled principle of law that for the Declaration and Injunction suit, the plaintiff must establish a legal character to maintain the suit for Declaration and injunction. However, in the present plaint, the plaintiffs failed to show any legal character; therefore, in the absence of these things in favour of the plaintiffs, all the relief claimed by the plaintiff in the present suit is not maintainable according to the abovementioned law.

v. , the prime object of Order VII Rule 11 C.P.C. is primarily to save the parties from frivolous litigation. If the Court come to the precise conclusion that even if all the allegations made in the plaint are proved, the plaintiff would not be entitled to the relief claimed, then the Honourable Court would be justified to reject the plaint in the exercise of the power available under Order VII Rule 11 C.P.C., same is the position in this plaint, even the prayer by plaintiffs cannot be granted by this Honourable Court.

1. The trial Court vide its Order and Decree dated 30.3.2021, allowed the application and rejected the plaint under Order VII Rule 11 of the Code. The applicant assailed the aforesaid Order and Decree in an appeal which was dismissed on 17.8.2021 by the appellate Court, and the Order and Decree under appeal were maintained.

2. At the very outset, the learned counsel for the applicant contended that both the Courts considered the suit for Declaration without perusing the prayers; in fact, the suit for Specific Performance was filed by the applicant; he argued that an earlier application was filed on the ground that the suit is barred by law. Plaint does not disclose a cause of action, and the trial Court rejected the plaint and said Order was challenged in Civil Appeal No.128/2019, which was finally allowed vide Judgement dated 29.11.2019. The case was finally remanded to the trial Court for disposal in accordance with law. Contends that respondents Nos.1 and 2 admitted the ownership of the suit land in their written statement, but afterwards amended written statement had been filed with leave of the Court through application under Order VI Rule 17 of the Code, wherein they have denied ownership in respect of Survey No.336/3 and filed the subsequent application on the same grounds, which is not maintainable under the law. He also drew attention to the fact that the trial Court had framed issues. The matter was fixed for plaintiff evidence, and the trial Court rejected the plaint without considering the objections filed on a subsequent application. Finally, he concluded that the appellate Court had also not considered that aspect of the case and dismissed the appeal by maintaining the Order of the trial Court. In support of his contention, he relied upon 2022 SCMR 1898, 2020 CLD 1329, 2018 MLD 918, 2019 CLC 2083, 2016 MLD 1394, PLD 2009 Karachi 38, 2004 YLR 1113 and unreported Order dated 29.7.2020, passed by apex Court in C.P No.1425-K of 2018 in the case of Sikandar Ali and others v. Badaruddin and others.

3. On the other hand, the learned counsel for the respondents Nos.1 and 2 contended that the plaint has rightly been rejected as it does not disclose a cause of action and the suit is barred under Section 12 of the Specific Relief Act as respondents Nos.1 and 2 were not the owner of Survey No.336/3 and no Sale Agreement had been executed between the parties. Applicants are land grabbers and intend to occupy the suit land through false, fabricated and bogus agreements. Contends that even otherwise, as condition No.2 of the alleged Sale Agreement suit for Specific Performance of Contract is not maintainable, and applicants should have sought relief by filing suit for recovery of the amount. Contends that both the Courts have rightly rejected the plaint, and there is no need to decide the matter on the basis of evidence as the suit at its inception is incompetent and not maintainable. Refuting the arguments of learned counsel for the applicant, he contends that subsequent application is maintainable if the ground of rejection is different or not identical. He finally concluded that the suit is barred by law and not maintainable and should be buried at its inception. He relied upon 2023 SCMR 344, PLD 1967 Dacca 190, 2004 A.C 863 and 2009 MLD 538 to support his contention.

4. Learned Additional Advocate General for the official respondents supported the impugned Judgement and Order of both the Courts below. Additionally, he adopted the arguments put forth by the counsel for respondents Nos.1 and 2 and prayed for the dismissal of this Revision Application.

5. The contentions have been fastidiously scrutinized, and the accessible record has been carefully assessed.

6. To ascertain whether an adequate and comprehensive dispensation of justice was achieved, it is imperative to analyse the findings concurrently documented by the Courts below. Admittedly, the trial Court permitted the earlier application, dated 27.8.2019, and rejected the plaint without fully considering the nearly identical grounds presented in the subsequent application dated 11.02.2020. However, in considering the appeal against the rejection of the plaintiff's plaint, the appellate Court opted to remand the case to the trial court to ensure proper adjudication of the suit and avoid any technicality. It is evident that the grounds for the subsequent application were not deliberated upon in the previous Order dated 15.10.2019, in which the trial Court rejected the plaint. However, once the case has been remanded back for proper procedural handling and issues have been framed, it is questionable how the trial Court could consider a second application and reject the plaint by clarifying factual disputes regarding the ownership of Survey No. 336/3, either it is included in the body of plaint and sale agreement dated 05.12.2018. I am of the opinion that once an application is made under Order VII Rule 11 of the Code in a suit, it becomes the responsibility of the Court to independently determine all relevant legal inquiries, including whether the suit is barred by law or if the plaint discloses a cause of action. Hence, it is imperative to highlight the inherent illegality in the existing scenario, wherein the Court rejected the plaint while considering a subsequent application under Order VII Rule 11 of the Code, contravening the prevailing legal provisions. In this context, I am fortified with the case of Muhammad Boota and another v. Moor Begum and 2 others (PLD 2002 Supreme Court 74), wherein apex Court has held as under: -

"4. Learned counsel for the appellants argued that after rejection of the first application, the second application for the same relief was not competent, therefore, the High Court erred in law in accepting the second application without commenting on the maintainability of the said application. The learned counsel representing the respondents at this stage stood up and submitted that he concedes the above legal position and would not oppose the appeal on this count."

1. The definitions pertaining to the terms of Sale Agreement, Contract, and enforceability of agreement are explained in Sections 2, 3, and 4 of the Contract Act, 1872. The following Sections are reprinted below for the sake of ease and convenience: -

"2. Interpretation clause. In this Act the following words and expressions are used in the following senses unless a contrary intention appears from the context:--

(a) when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such Act or abstinence, he is said to make proposal.

(b) when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise;

(c) the person making the proposal is called the "promisor", and the person accepting the proposal is called the promisee";

(d) when, at the desire of the promisor, the promisee or any other person who has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such Act or abstinence or promise is called a consideration for the promise;

(e) every promise and every set of promises, forming the consideration for each other, is an agreement;

(f) promises which form the consideration or part of the consideration for each other called reciprocal promises;

(g) an agreement not enforceable by law is said to be void;

(h) an agreement enforceable by law a contract;

(i) an agreement which is enforceable by law at the opinion of one or more of the parties thereto, but not at the opinion of the other or others, is a voidable contract; and

(j) a contractor which ceases to be enforceable by law becomes void when it ceases to be enforceable.

3. Communication, acceptance and revocation of proposals. The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any Act or omission of the party proposing, accepting or revoking by which be intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it.

4. Communication when complete. The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.

The communication of an acceptance is complete,--

as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor;

as against the acceptor, when it comes to the knowledge of the proposer.

The communication of the revocation is complete,--

as against the person who makes it, when it is put into course of transmission (o the person to whom it is made, so as to be out of the power of the person who makes it;

as against the person to whom it is made when it comes to his knowledge."

1. The requisite elements that must be established by the parties to substantiate the Sale Agreement are offer acceptance, communication, and consideration. In this regard, apex Court settled exposition of the law in the case of Muhammad Sattar and others v. Tariq Javaid and others (2017 SCMR 98), wherein it has been observed as under: -

"13. The aforesaid would make it clear that it is now a well settled proposition of law that for a valid contract, the same can be oral or it may be through exchange of communication between the parties. Once an offer is communicated, the acceptance thereof can be expressed or implied. Such acceptance of the offer would include accepting the consideration accompanying the offer or acting upon the said bargain. There is no requirement of a formal signature of both or either of the parties. All that is required is an offer and acceptance and consideration between the parties."

1. Upon careful examination of the impugned Judgment and Order passed by the lower Courts, it becomes evident that the rejection of the plaint was carried out hastily without affording the parties the chance to substantiate their claims by submitting evidence. This hasty dismissal of the case was solely based on a preliminary examination of the terms and conditions outlined in the Sale Agreement. I have thoroughly examined the terms and conditions of the Sale Agreement dated 05.12.2018, in which it is explicitly stated that the applicant had an obligation to pay the remaining amount of Rs. 1500,000/-(fifteen lac) to the respondents upon the completion of the wheat crop harvest. Subsequently, the respondents would be legally obligated to execute the registered Sale Deed. However, the trial Court neglected to acknowledge this particular condition of the Sale Agreement and erroneously concluded that "Had there been a condition in the agreement to sale then the vendee would have been entitled to file a suit for specific performance of agreement to sale. From terms and conditions it is crystal clear that the respondent, vendee was only entitled for receiving an amount double of the earnest money which was paid to the vendor." These findings are deemed unlawful and result from misinterpretation and failure to thoroughly review the terms and conditions outlined in the Sale Agreement. Even otherwise, the Court is empowered to consider legal action for enforcing a contract through specific performance, as specified under Section 12 of the Specific Relief Act, 1877. In specific performance suits, the Court is empowered by Section 19 of the Specific Relief Act, 1877, to grant damages without the plaintiff specifically requesting them. The said Section is reproduced herein below:--

"19. Power to award compensation in certain cases.---Any person suing for the specific performance of a contract may also ask for compensation for its breach, either in addition to, or in substitution for, such performance.

If in any such suit the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach, it shall award him compensation accordingly.

If in any such suit the Court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.

Compensation awarded under this Section may be assessed in such manner as the Court may direct."

1. It is clear that the first part of Section 19 ibid, only enables the person suing for specific performance to ask for compensation for its breach. He may do so either in addition or in substitution for such performance. In the instant case, the appellant had not explicitly asked for compensation for the breach of any contract. The second part of Section 19 ibid, imposes a mandatory duty upon the Court to award compensation, whether it is asked for or not. The conditions that have to be satisfied before compensation is granted under the second part of Section 19 are that the Court must decide that specific performance ought not to be granted; there must be a contract between the parties which must have been broken by the defendant against whom the compensation is to be granted; and the plaintiff must have proved his right to the compensation to be awarded. It is obvious that this part of Section 19 comes into play only when there is a privity of contract between the plaintiff and the party against which an order for damages for breach of contract can be passed. In doing so, I draw inspiration from the legal precedents established in the following cases:

(i) In the case of Nigar Pictures, Karachi v. United Brothers, Lahore (PLD 1970 Karachi 770), it was observed that section 19 of the Specific Relief Act, 1877, confers express power on the Court to award damages either in addition to or in substitution of specific performance whenever the Court considers the award of damages to be just. Furthermore, it was held that it was settled law that damages for breach of contract can be awarded in a suit for specific performance even though the plaintiff had not claimed damages.

2024 M L D 670

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto, J

Liaquat Ali alias Liaquat and 4 others ---Appellants.

Versus

The State ---Respondent

Criminal Appeal No. S-14 of 2022, decided on 17th October, 2022.

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

----Ss. 395, 324, 353 & 412---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Dacoity, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, dishonestly receiving stolen property---Appreciation of evidence---Withholding material evidence---Non-examination of informer and police witness---Accused were charged for snatching a tractor from its driver and driving it away; and after police party pursued them, the accused made firing upon them---Record showed that first information was given to the police by one Mr. "I" that his Tractor had been snatched by three unknown armed persons---Said informer had not been examined by the prosecution at the trial---However, it was a case of spy information, and SHO had sufficient time to call independent and responsible persons of the locality but he avoided doing the same---Case of the prosecution was that at the time of encounter, accused persons were identified by a Police Constable but said Police Constable had not been examined by the prosecution at the trial---Non-examination of informer and Police Constable was fatal to the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Mour and 4 others v. The State 2016 P Cr J 1706 ref.

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

----Ss. 395, 324, 353 & 412---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Dacoity, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, dishonestly receiving stolen property---Appreciation of evidence---No weapon of offence recovered ---Accused were charged for snatching a tractor from its driver and driving it away; and when police party pursued them; the accused made firing upon them---From the close scrutiny of evidence, it transpired that there was police encounter for ten minutes with sophisticated weapons from both sides but not a single injury or scratch was caused to either party---During investigation, accused persons were arrested but no crime weapon was recovered from them---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Mour and 4 others v. The State 2016 P Cr L J 1706 rel.

(c) Criminal trial---

---Benefit of doubt---Principle---Single circumstance, which creates reasonable doubt in prosecution case, will be sufficient to extend the benefit of doubt.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Shabbir Ali Bozdar for Appellants.

Syed Sardar Ali Shah, Additional Prosecutor General for Respondent.

Date of hearing: 17th October, 2022.

Judgment

NAIMATULLAH PHULPOTO, J---Appellants Liaquat Ali alias Liaquat son of Durrani, (2) Ghulam Shabbir son of Durrani, (3) Sanwal son of Durrani, (4) Riaz son of Attal and Ghulam Yaseen son of Gulsher were tried by learned 3rd Additional Sessions Judge, Mirpur Mathelo, in Sessions Case No, 166 of 2020. On the conclusion of trial, appellants were convicted under Section 395, P.P.C. for 03 years R.I and to pay fine of Rs.5000/- each. In case of default in payment thereof, the appellants were ordered to suffer S.I for one week more each. Appellants were also convicted under Section 324 P.P.C. and sentenced to 03 years R.I and fine of Rs.5000/- each. In case of default in payment thereof, they were ordered to suffer one week S.I more each. Appellants were convicted under Section 412 P.P.C. and sentenced to 03 years R.I and to fine of Rs.5000/- each. In case of default in payment thereof, they were ordered to suffer one week S.1 more each. The appellants were also convicted under Section 353 P.P.C. and sentenced to one year Rd and to fine of Rs.2000/- each. In case of default in payment thereof, the appellants were ordered to suffer three days S.I more each. All the sentences were ordered to run concurrently. Appellants were extended benefit of Section 382-B Cr.P.C.

1. Brief facts of the case leading to filing of appeal are that SHO P.S. Khanpur Mahar lodged FIR against appellants on 29.04.2020 on behalf of the State and it was recorded vide Crime No.30/2020 for offences punishable under Sections 395, 324, 353 and 412 P.P.C., alleging therein that on 28.04.2020, at 2300 hours, one Irshad Ali Mirani had appeared at P.S and gave information to the police that he had loaded hill-sand in a Tractor Trolley and was coming from Rohri to Imamwah, when he reached at Khair Deen Mangrio Wahi, where it is alleged that three unknown culprits snatched from him one Tractor and drove it away. SHO alongwith his subordinate staff on such information left police station vide roznamcha entry No.21 at 2315 hours for the recovery of snatched Tractor. On the way, he received spy information that snatched Tractor has been parked in house of appellant. Liaquat Bozdar, his village namely Bachal Khan Gabol. On such information, police party proceeded to the pointed place and reached at the house of appellant Liaquat at 1700 hours and saw Bed-Ford Tractor and one Fiat Tractor in the houses of appellants. Thereafter, it is alleged that appellants armed with KKs and pistols fired upon the police party with intention to kill them. Police party also fired in self-defence, such encounter continued for 10 minutes. Thereafter, appellants succeeded to run away. It is alleged that the appellants were identified by PC Muhammad Ayub. FIR of the incident was lodged on behalf of State in above referred sections. During investigation, appellants Liaquat and Abdul Sattar were arrested and challan was submitted against them under the above referred sections.

2. Trial Court framed charge against all the five appellants at Exh.5, to which appellants/accused pleaded not guilty and claimed for trial. Prosecution examined 03 PWs and relevant documents were provided in evidence. Thereafter, prosecution side was closed. Trial Court recorded statements of appellants/accused under Section 342 Cr.P.P in which they claimed false implication in this case and denied the allegation leveled by the prosecution; however they did not lead evidenc in defence and declined to give evidence on oath. Learned trial Court, after hearing learned Counsel the parties and assessment of the evidence, convicted and sentenced the appellants as stated above, hence appellants filed the above appeal before this Court.

3. Mr. Shabbir Ali Bozdar, advocate for the appellants argued that there was encounter for ten minutes but none received injury from either side; that appellants were identified at the time of incident by PC Muhammad Ayub but he was not examined before the trial Court. Lastly, it was argued that one Irshad Ali Mirani had first informed the incident to the police officials but he was also not examined by the prosecution. It is submitted that prosecution case is doubtful. In support of his contentions, learned Counsel for-appellants has placed reliance upon the case of Mour and 4 others v. The State (2016 P Cr J 1706).

4. Syed Sardar Ali Shah, Additional Prosecutor General argued that prosecution has brought on record huge evidence to connect the appellants and prayed for dismissal of appeal.

5. After hearing learned Counsel for the parties, I have re-examined the prosecution evidence and, perused the impugned judgment. I have come to the conclusion that prosecution had failed to prove its case against the appellants for the reasons that first information was given to the police by one Irshad Ali Mirani that his Tractor has been snatched by three unknown armed persons from him; said Irshad Ali Mirani has not been examined by the prosecution at the trial. It was the case of spy information, SHO had sufficient time to call independent and responsible persons of the locality but he avoided. It is the case of the prosecution that at the time of encounter, appellants were identified by PC Muhammad Ayub but PC Muhammad Ayub has not been examined by the prosecution at the trial. Non-examination of Irshad Ali Mirani and PC Muhammad Ayub would be fatal to the prosecution. From the close scrutiny of evidence, it transpires that there was police encounter for ten minutes with sophisticated weapons, from both sides but not a single injury or scratch was caused to either party. During investigation, appellants Liaquat and Abdul Sattar were arrested but no crime weapon was recovered from them. In the case of Mour and 4 others v. The State (2016 P Cr L J 1706), it has been held as under:-

2024 M L D 681

[Sindh (Sukkur Bench)]

Before Muhammad Faisal Kamal Alam, J

Hidayatullah---Appellant

Versus

Muhammad Mushtaque---Respondent

Civil Appeal No. S-30 of 2028, decided on 28th February, 2022.

Civil Procedure Code (V of 1908)---

----OXXXVII, R.3---Constitution of Pakistan, Art. 10-A---Suit for the recovery of loan on the basis of pro note---Leave to appear and defend suit---Summons not issued to the defendant---Application filed by the defendant for leave to appear and defend the suit filed against him on the basis of pro note was dismissed being time barred---Record showed that prescribed application under O. XXXVII, R. 3 C.P.C. was not moved therefore, decree was to be passed, which was accordingly passed---Validity---In the present case the summons was issued in the ordinary course and neither it contained the wording that copy of the plaint was annexed nor there was any caution that leave was to be obtained from Court within ten days---In the present appeal one of the grounds was that present appellant had not executed and issued the subject promissory note and that being a prima facie triable issue, a chance should have been given by the trial Court to file the leave to defend application---In view of said undisputed facts, summons issued for a suit filed under summary Chapter of C.P.C. had to be specific, because in case of failure there was a requirement, that a decree was to be followed---Secondly, the nature of summary jurisdiction was that, unless a plausible case was made out by defendants in the leave to defend application, usually the suit was decreed without a full dress trial---Undisputed facts of the present case clearly showed that summons as required under O. XXXVII of C.P.C. was not issued to present appellant/defendant in the suit---Secondly defendant did appear on the date mentioned in the summons and even on that date he was not asked by the Court about receiving copy of the entire plaint and annexure---Hence such gross procedural lapse was also violative of Art. 10-A of the Constitution, as it deprived the present appellant from a fair opportunity of hearing and trial---Consequently, appeal was allowed.

Sikandar v. M. Asif 1993 MLD 2320 rel.

Raj Kumar D. Rajput for Appellant.

Date of hearing: 28th February, 2022.

Judgment

2024 M L D 689

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

Naeem Ahmed khan---Appellant

Versus

Darya Khan---Respondent

IInd Appeal No. S-20 of 2012, decided on 25th May, 2022.

Qanun-e-Shahdat (10 of 1984)

----Art.84---Specific Relief Act (I of 1877), Ss. 12 & 54---Suit for specific performance of contract and injunction---Execution of the contract denied---Power of Trial Court to compare signatures on documents available on record---Scope---Respondent being buyer of land through contract filed a suit for specific performance against the seller, which was dismissed by the trial Court---Appeal was preferred, which was allowed---Validity---Record showed that during the proceedings of the case, the defendant had moved an application under S. 151, C.P.C., with a prayer that his alleged signature appearing on sale agreement be sent to a writing expert for his opinion---Civil Court dismissed the said application as such procedure would consume time particularly when a remedy was available under Art. 84 of the Qanun-e-Shahadat, 1984, where the Court itself was competent to compare the signatures in order to effectively resolve the subject controversy---Trial Court scrutinized the written statement filed by the defendant alongside his CNIC to examine signature of defendant carefully and compared it with the signatures shown on the backside of sale agreement---Trial Court in its judgment had reproduced the images of the signatures which through the naked eye appeared to be totally different---Having made those ocular observations, the Trial Court went into a deep discussion on the subject---Trial Court observed inconsistencies between the deposition of witness and the plaintiff---Trial Court highlighted the discrepancies between the statement of other witness made in contrast to the other witnesses whereupon it concluded that there were serious inconsistencies with regard to writing and signing of the agreement, receipt of the cash and cheque and handing over of the possession of the suit land from the seller to the buyer---With regard to the controversy that who collected payment of Rs.200,000/- while encashing a cheque, the Trial Court perused a copy of the said cheque, which was produced by the Bank Manager concerned and found that the signatures on the back side of the cheque of the person receiving the money were totally different than those of the seller, which negated the assertion of the plaintiff that the defendant collected proceeds of the cheque---On the said grounds, the Trial Court empowered by Art. 84 of the Qanun-e-Shahadat, 1984, concluded that the signatures of the defendant on the agreement did not tally---Appellate Court had instead chosen to consider the testimony of the plaintiff in isolation, while ignoring the discrepancies and inconsistencies present therein, as highlighted in the judgment of the Trial Court---Appellate Court completely ignored the fact that while all the witnesses stated that they knew the defendant for years and years, they could not answer simple question as to what was the profession of the said defendant or whether he lived in a small town---Case of the present appellant in the such circumstances that a scheme was cooked up by the respondent where an allegedly fake agreement was engineered and its witnesses colluded with each other, in isolation of the manner as to how the money was transferred and how the possession was handed over, appeared to be more plausible---Hence, the appellate Court's judgment seemed to be result of misreading and non-reading of the evidence, whereas the trial Court's judgment appeared to stand on solid foundations---Appeal was allowed, in circumstances, by setting aside the judgment and decree passed by the appellate Court.

1999 SCMR 85 and 1998 SCMR 346 rel.

Muhammad Ayoub Magsi for Appellant.

Raja Nauman Khan for Respondent.

Date of hearing: 28th April, 2022.

Judgment

ZULFIQAR AHMAD KHAN, J: ---Through this Second Appeal, appellant has assailed the impugned judgment dated 30.03.2012 and decree dated 03.04.2012 passed by learned Additional District Judge, Shahdadpur, District Sanghar, whereby it allowed the Civil Appeal No.27 of 2011 filed by the respondent /appellant Darya Khan ("the buyer") and set aside the judgment and decree dated 08.10.2011 passed by learned Senior Civil Judge, Shahdadpur in F.C. Suit No.66 of 2009, where the said Court dismissed the suit of said buyer.

1. Relevant and necessary facts are that Darya Khan filed a suit for Specific Performance of Contract and Permanent Injunction against the seller Naeem Ahmed alleging therein that he had entered into an agreement with the latter in respect of agricultural land bearing S.No.776 area 2-4 acres, situated in deh Chamro, Taluka Shahdadpur, for the total sale consideration of Rs.4,55,000/- on 11.10.2009 and at the time of sale agreement, he paid Rs.200,000/- to the seller in cash and also issued him a cheque for Rs.200,000/- dated 31.10.2009, bearing cheque No.970193 drawn on National Bank of Pakistan, Shahdadpur Branch in the presence of witnesses, the said seller handed out possession of the suit land to the buyer, and it was agreed in the sale agreement that the seller would execute registered sale deed before the Sub-Registrar in the name of the buyer on the receipt of the balance amount of Rs.55,000/- from the buyer on 20.11.2009. It was further alleged that on 12.11.2009 the buyer through his Advocate sent a notice to the seller by registered post A.D, requesting the seller to execute and register the sale deed on the receipt of the balance amount of Rs.55,000/- this notice was received by the seller but neither the latter sent any reply of the said notice, nor he turned up to execute and register the sale deed in favour of the buyer, therefore, he filed the suit with the following prayers :

(a) That the defendant be directed and ordered to execute and register the sale deed of the Suit land bearing S.No.776 area 2-4 acres, situated in deh Chamro, Taluka Shahdadpur in the name of plaintiff on receipt of balance amount of Rs.55,000/- from him, before the sub-registrar Shahdadpur, failing which the Nazir of the Court may be empowered, directed and ordered to do the needful, on behalf of the defendant.

(b) Permanent Injunction be issued against the defendant from interfering with the Suit land in possession of the plaintiff, so also from alienating the same to any other person except the plaintiff in any manner whatsoever directly or indirectly.

(c) Costs of the suit be borne by the defendant and the same may be awarded to the plaintiff.

(d) Any other relief which this Hon'ble Court may deem fit and proper be awarded to the plaintiff.

1. It is important to add here that prior thereto, the said suit was decreed as ex parte vide judgment dated 23.02.2010 and decree dated 25.02.2010. However, after about three months, defendant Naeem Ahmed Khan (seller) appeared on 10.05.2010 when the execution of the above matter was fixed for orders and he filed an application under section 12(2), C.P.C. along with his affidavit stating therein that said ex parte judgment was obtained by the plaintiff buyer through fraud, misrepresentation and without proper service of the process effected on him, hence he prayed that the ex parte judgment and decree may be set aside. After hearing both parties, the application of the defendant under section 12(2), C.P.C. was allowed vide order dated 14.09.2010 whereby said judgment and decree was set-aside. Subsequently, defendant Naeem Ahmed filed his written statement on 23.09.2010, wherein he categorically denied execution of any sale agreement, handing over possession of the suit property as well as receipt of any sale consideration. He further stated in his written statement that the document in respect of sale agreement of the suit land was forged and managed one. He further denied in his written statement from having put his signatures on the said documents. It was further declined by him that any legal notice was received by him and he pointed out that notices were served on someone else on a wrong address with ulterior motive of the buyer. He also denied handing over the possession of the suit land to the plaintiff. He admitted that he is sole owner and in possession of the suit land which is being cultivated by his hari namely Imam Bux Dahri.

2. On the pleadings of parties, following issues were framed:-

3. Whether the defendant executed sale agreement in favour of plaintiff in respect of Suit land bearing S.No.776 area 2-4 acres for total consideration Rs.4,55,000/-?

4. Whether the defendant at the time of execution of sale agreement received an amount of Rs 200,000/- from the plaintiff and a cheque of Rs.200,000/-bearing No.970193 of N.B.P Shahdadpur branch dated 31.10.2009 in presence of witnesses?

5. Whether the defendant handed over the possession of the suit land to the plaintiff under the sale agreement?

6. Whether the defendant abide the terms and conditions of the said sale agreement? If not whether he is liable to return Rs. 400,000/-plus Rs. 400,000/-as penalty to the plaintiff?

7. Whether the sale agreement bears the original signatures of the defendant?

8. Whether the Suit of the plaintiff is maintainable?

9. Whether the plaintiff is entitled for the relief claimed?

10. What should the decree be?

11. Thereafter both parties lead their respective evidence. The plaintiff got examined Muhammad Anwar, Mukhtiarkar Land Revenue at Ex.37, he produced copy of report of SHO at Ex.38, copy of Form VII-B at Ex.39, copy of written statement in proceedings of 145 Cr.P.C at Ex.40, copy of letter of police at Ex.41, application of Darya Khan at Ex.42, copy of letter addressed to SHO by Mukhtiarkar at Ex.43. Plaintiff examined his witness Sikandar Khaskheli, Operation Manager in NBP, Shahpurchakar Branch at Ex.44, who produced copy of withdrawal cheque at Ex.45, account statement at Ex.46, certificate at Ex.47, copy of CNIC of defendant along with application of defendant at Ex.48, copy of application of plaintiff Darya Khan at Ex.49, copy of letter addressed to plaintiff at Ex.50. He also examined Muhammad Soomar, Tapedar of the Beat at Ex.51, who produced copy of Dhall receipt at Ex.52, copy of field book at Ex.53, copy of receipt at Ex.54, he produced copy of deh Form VII Jamabandi at Ex.55, plaintiff examined himself at Ex.70, he produced original copy of alleged agreement at Ex.71, copy of legal notice at Ex.72, original postal receipt at Ex.73, acknowledgment of the postal authority at Ex.74, bank statement at Ex.75, he examined author of agreement namely Dur Muhammad at Ex.76 and eye-witnesses namely Gul Khan Chandio at Ex.78 and Muhammad Shabir Mari at Ex.79, then the side of plaintiff was closed vide statement at Ex.79.

12. The defendant examined himself at Ex.85, he produced certified true copy of Constitutional Petition No.D-551 of 2010 at Ex.86, certified true copy of deposition in the departmental enquiry No.2030/2010 at Ex.87, certified copy of deposition of Mumtaz Ali Bailiff at Ex.88, certified copy of statement at Ex.89, Resident Certificate at Ex.90, certificate of Rufi Fountain Welfare Association, Karachi and clarification of Union Council Gujro. Then the side of defendant was closed vide statement dated 18.05.2011 at Ex.93.

13. Learned counsel for the appellant contends that impugned judgment and decree passed by learned appellate Court are opposed to law, facts, equity and justice and has acted in exercise of its jurisdiction illegally and committed material irregularities while passing the impugned judgment and decree. Per learned counsel, the buyer failed to prove that the appellant / seller had entered into any sale transaction in respect of the suit land and that the buyer had paid any amount in respect of the saie transaction, therefore, learned trial Court decided Issues Nos.1, 2 and 3 in favour of the appellant after examining the evidence on record, but the findings of learned appellate Court are faulty as the same is result of misreading and non-reading of pleadings of the parties and evidence on the record. He next contended that respondent also failed to prove that the alleged sale agreement bear signature of the appellant and the trial Court decided the issue No.5 in favour of the appellant / seller by comparing signature of the appellant allegedly made by him on the sale agreement and on back side of the cheque allegedly issued to appellant from those of appearing on CNIC and deposition of the appellant and the appellate Court did not consider the fact that the attesting witnesses and scriber of the so-called sale agreement were set up persons / witnesses of the respondent / plaintiff, whose evidence was false and fabricated. He next submits that learned appellate Court also did not consider the fraudulent character of the respondent / plaintiff which is evident from the record of the case that how he managed ex parte judgment and decree which was subsequently set aside by the trial Court, hence learned appellate Court passed impugned judgment and decree without considering all of the above aspects of the case, which are illegal, improper, erroneous and the same may be set aside.

14. On the other hand, learned counsel for the respondent contended that the signature on agreement of sale (Ex.71) belonged to appellant which was executed by the appellant Naeem Ahmed Khan himself in the presence of independent witnesses Dur Muhammad, Gul Khan and Muhammad Shabir and such fact has been verified by the witnesses by appearing in witness box. He supported the impugned judgment and decree passed by learned appellate Court.

15. Heard the learned counsel for the parties and perused the material available on record.

16. Following points are framed for my determination:-

(i) Whether the decision of the appellate Court is contrary to law, having substantial error or defect ?

(ii) What the decree should be?

1. My findings on the above issues with reasons thereof are as follows:?

Point No.1. ...As under.

Point No.2. ...Appeal is allowed.

REASONS

1. I have perused the judgment of both the Courts below and the evidence led by the respective parties and find it appropriate to first refer to the judgment of the trial Court wherein, on the basis of the findings given in respect of issue No.5 as to "whether the sale agreement bears the original signature of the defendant or not", all remaining issues were answered. Incidentally, the appellate Court also considered this issue as the leading issue and ended up giving divergent findings, hence, it would be appropriate to examine as to which Court (in my humble view) had gone wrong.

2. As to the burden of proof in respect of issue No.5 lied upon the plaintiff, he in support of his version examined himself and three attesting witnesses namely Dur Muhammad Chandio, Gul Khan Chandio and Muhammad Shabbir Mari. The plaintiff deposed that he purchased the suit land in the total sum of Rs.4,55000/- from the seller Naeem Ahmed (present appellant) vide sale agreement dated 11.01.2009 and paid Rs.200,000/- in cash and an equal amount of money through cheque, while the remaining amount of Rs.55000/- was to be paid to the defendant on 20.11.2009. He further deposed that formalities in connection with the above-mentioned sale were witnessed by the above-named three witnesses. He produced the sale agreement at Ex.71. In his cross-examination, he admitted that he himself purchased the stamp paper from the stamp vendor Sain Dino Soomro. He admitted that the agreement was written by PW Dur Muhammad at his shop. PW Dur Muhammad Chandio deposed that the sale agreement was executed in his presence on 11.10.2009 and after receiving the amount, the seller Naeem Ahmed handed over possession of suit land to the buyer Darya Khan then and there. In his cross-examination he stated that he knew the seller Naeem Ahmed for the last 20 years, however, he admitted that he did not know where did the seller reside in Shahpurchakar. He also admitted that he was not aware as to what was the job or service the said seller was professing. He denied that Naeem Ahmed Khan did not sign the agreement and that the Darya Khan was fraudulently pursuing the case. Plaintiffs other witness Gul Khan Chandio also deposed that he was a very close friend of seller Naeem and agreement took place in his presence. In his cross-examination, he states that he knew defendant for 30 years but strangely also admitted that he did not know where was the house of defendant in Shahpurchakar town. He also admitted that he did not know anything about the profession or livelihood of the defendant. Third witness Muhammad Shabbir Mari also stated that he knew both the parties and agreement took place in his presence, however, once again he did not know what was the profession of the defendant, neither he knew when did defendant's father died. In contrast the defendant examined himself and showed that he owned the suit land and such entry was available in the record of rights and that the land was in his possession. He denied executing any agreement or even that he received any money. He also denied that he did not encash the subject cheque from the Bank. He deposed that his signature on the agreement was false. Neither he admitted that he had received any legal notice from the plaintiff's side. He stated that he never met any of the attesting witnesses in his life, however, deposed that Imam Bux Dahri was cultivating his land to whom the plaintiff's side had issued warning and threats that he should not appear in this Court. In support of his version, he produced certified copy of his deposition recorded in Departmental Enquiry at Ex.87 and true copies of depositions of Bailiffs Mumtaz Ali and Syed Irfan Hyder at Exs. 88 and 89. He, in his cross-examination deposed that he shifted from Shahpurchakar to Karachi in the year 1984 where he was engaged in a government job. He admitted that his earlier CNIC had the address of Shahpurchakar but later on when he moved to Karachi, his subsequent CNICs had Karachi's address. He denied that he had intentionally put different version of signatures on different documents in the Court.

3. The learned trial Court on the basis of above evidence, being cognizant of the fact that the defendant had moved an application under section 151 C.P.C. with a prayer that his alleged signature appearing on sale agreement be sent to a writing expert for his opinion, dismissed the said application as such procedure would be consuming time particularly when a remedy was available under section 73 of the Evidence Act / Article 84 of the Qanun-e-Shahadat Order, 1984 where the Court itself was competent to compare the signatures in order to effectively resolve the subject controversy. The learned trial Court having been beefed up in this regard by the judgment referred by the Hon'ble Supreme Court in the case of 1999 SCMR 85 took the painful exercise of scrutinizing the signatures of the defendant. The trial Court took notice of the fact that the sale agreement was purchased by the plaintiff and written in Sindhi script where on the top front side of the agreement an endorsement was written by the stamp vendor vide No.680 of 05.10.2009 where under signature and stamp of the stamp vendor were affixed. The trial Court minutely noted that on the first page of the agreement there were no signatures of the plaintiff or defendant whereas on its backside strangely there were five different signatures, one each for buyer himself, third by PW Gul Khan, fourth of PW Muhammad Shabbir and fifth by PW Dur Muhammad. The trial Court scrutinized the written statemen filed by the defendant alongside his CNIC to examine signature of defendant carefully and compared it with the signatures shown on the backside of sale agreement. The trial Court at page No.10 of its judgment has reproduced the images of the signatures which through the naked eye appear to be totally different. Having made these ocular observations, the trial went into a deep discussion on this subject. The trial Court observed inconsistencies between the deposition of PW Dur Muhammad and the plaintiff. Also, the trial Court highlighted the discrepancies between the statement of PW Muhammad Shabbir made in contrast to the other witnesses whereupon it concluded that there were serious inconsistencies with regard to writing and signing of the agreement, receipt of the cash and cheque and handing over of the possession of the suit land from the seller to the buyer. With regard to the controversy that who collected payment of Rs.200,000/- while encashing cheque No.970193, the learned trial Court perused a copy of the said cheque dated 31.10.2009 (Ex.45), which was produced by the Manager, National Bank of Pakistan, Shahpurchakar Branch and found that the signatures on the back side of the cheque of the person receiving the money were totally different than those of the seller Naeem Ahmed Khan, which negated the assertion of the plaintiff that the defendant collected proceeds of the cheque. On the above-mentioned grounds, the learned trial Court empowered by Article 84 of the Qanun-e-Shahadat Order, 1984 concluded that the signatures of the defendant on the agreement did not tally.

2024 M L D 703

[Sindh]

Before Mohammad Karim Khan Agha and Kausar Sultana Hussain, JJ

Yaseen Balouch---Applicant

Versus

The State---Respondent

Spl. A.T. Appeals No. 309, 310 and 311 of 2016 and confirmation case No. 1 of 2017, decided on 11th November, 2021.

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

----Ss.302, 324, 365 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Statement of sole eye-witness doubtful---Accused were charged for committing murder of sister, brother-in-law and two nephews of the complainant, injuring his niece and also committing rape with his niece and her mother---Apparently sole eye-witness/injured narrated the incident to the complainant whilst she was being treated in hospital---According to the evidence of Investigating Officer when he went to take the statement of injured witness in hospital the Medical Officer informed him that she was unable to make a statement and stopped him from doing so which tended to cast doubt on the content of the later FIR lodged by the complainant---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) Penal Code (XLV of 1860)---

---Ss. 302, 324, 365 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, common intention, act of terrorism---Appreciation of evidence---Benefit of Doubt---Contents of FIR based on hearsay evidence---Effect---Accused were charged for committing murder of sister, brother-in-law and two nephews of the complainant, injuring his niece and also committing rape with his niece and her mother---Record showed that at 06:00 p.m., Investigating Officer recorded the statement of the complainant at his home who gave a very detailed statement of the incident i.e. rape and murder which had allegedly been given to him earlier by injured witness at the hospital who even gave the names of all the accused and co-accused---Such detail in the FIR based on the hearsay evidence of an injured women who was not well enough to record her statement before the police at about the same time as she gave the information to the complainant was somewhat dubious---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) Penal Code (XLV of 1860)---

---Ss. 302, 324, 365 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Unnatural conduct of victim/injured/witness---Accused were charged for committing murder of sister, brother-in-law and two nephews of the complainant, injuring his niece and also committing rape with his niece and her mother---According to the evidence of injured witness, after the incident she managed to reach Police Station with her younger brother and sister---However no FIR was lodged at that time and no police entry to that effect had been produced---However, it seemed that the police called an Ambulance for the young injured women and sent them off unaccompanied to hospital---No member of the ambulance service was examined as a witness and Investigating Officer who was on duty at 8:00 a.m. that morning at Police Station had no idea that injured had reached the Police Station in the morning---Investigating Officer was only informed where the dead bodies were lying and when he reached that place he found that they had already been taken to civil hospital---More so, it was very surprising conduct on the part of injured witness and the police and did not particularly accord with natural human conduct based on the particular facts and circumstances of the case---With regard to the rape of injured witness and that of her mother, in her evidence, the witness stated that two accused took her in a room and they committed zina forcibly; thereafter, another two accused took her mother in a room and committed Zina with her---However, the accused persons vide the impugned judgment had already been acquitted of the rape of injured witness and her mother as such her evidence with regard to such aspect of the case had been disbelieved by the Trial Court and no appeal against the accused persons' acquittal in respect of such offence had been made by the State and as such acquittal of accused had reached finality---Trial Court also acquitted accused of the rape of mother of injured witness---Such findings put entire evidence of injured witness in doubt---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.

Muhammad Mansha v The State 2001 SCMR 199; Ijaz Ahmad v The State 2009 SCMR 99; Muhammad Ehsan v The State 2006 SCMR 1857; Allah Ditta v The State PLD 2002 -SC 52; Farooq Khan v The State 2008 SCMR 917 and Zia Ullah and another v The State 2021 SCMR 1507 ref.

Notice to Police Constable Khizer Hayat PLD 2019 SC 527 rel.

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

---Ss. 302, 324, 365 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, common intention, act of terrorism---Appreciation of evidence---Benefit of Doubt---Statement of victim recorded by police belatedly---Accused were charged for committing murder of sister, brother-in-law and two nephews of the complainant, injuring his niece and also committing rape with his niece and her mother---Evidence tended to cast doubt on the prosecution case as according to the prosecution about 10 heavily armed men entered a rather small house, beat up and tied up eight occupants of the house, gang raped two of the female occupants and then forcibly took them all

from the house, yet the house appeared to have been in an undisturbed state which did not support the claim that the alleged incident took place in the house---Significantly, the injured eye-witness's S.161 Cr.P.C statement was made after a considerable delay of six days which gave her a chance to improve it or ensure that it was in line with the very detailed FIR lodged by her father based on her hearsay---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) Penal Code (XLV of 1860)---

---Ss. 302, 324, 365 & 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, kidnapping or abducting with intent to secretly and wrongfully confine person, common intention, act of terrorism---Appreciation of evidence---Benefit of Doubt---Material witnesses not produced for recording their evidence---Effect---Accused were charged for committing murder of sister, brother-in-law and two nephews of the complainant, injuring his niece and also committing rape with his niece and her mother---Daughter of one of the deceased and the son of one of the deceased who were also in the house at the time of the beatings and rape and also witnessed the shooting of the deceased were about 13 to 14 years and 12 to 13 years of age respectively at that time and would have been about 15 to 16 years and 14 to 15 years of age respectively at the time of trial but they did not give evidence for the prosecution at trial---Both the said persons would have been mature enough to support the evidence of injured witness/victim and as such it appeared that the prosecution deliberately choose to omit some of the best evidence without any reason which tended to undermine 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.

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

---Ss. 302, 324, 365 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused were charged for committing murder of sister, brother-in-law and two nephews of the complainant, injuring his niece and also committing rape with his niece and her mother---Record showed that there was no motive or reason for the accused to break into the house of the deceased and gang rape two women and aim to kill the entire occupants of the house---On the contrary complainant had an enmity with co-accused which gave the complainant a reason to falsely implicate the accused in the case in league with the police---Some of the police evidence had already been disbelieved when acquitting the accused and another in the encounter and arms cases which cast further doubt on the reliability of the present 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.

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

---Ss. 302, 324, 365 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Rule of consistency---Co-accused acquitted out the same set of evidence---Accused were charged for committing murder of sister, brother-in-law and two nephews of the complainant, injuring his niece and also committing rape with his niece and her mother---Record showed that the court had already acquitted minor co-accused persons of the murder of the deceased and injury to injured witness, who had the same role as the accused in the murders based on the same evidence before the court---In such circumstances the court could not convict the accused for the murder of the deceased and the injury to injured Witness---Accused was acquitted based on the benefit of doubt which was also extended to co-accused persons by the court---Appeal against conviction was allowed, in circumstances.

(h) 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.

Khawaja Naveed Ahmed for Appellant.

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

Date of hearing: 3rd November, 2021.

Judgment

Mohammad Karim Khan Agha, J.---Appellant Yaseen Balouch son of Manzoor Balouch was convicted by the learned Judge, Anti-Terrorism Court No.III, Karachi in Special Case No. 117 of 2014, FIR NO.459/2013 under sections 302/324/365/34 P.P.C. read with section 7 of ATA, 1997 and Special Case No. 120/2014, FIR No.363/2013 under section 23(1) (a) of Sindh Arms Act 2013 of PS Maripur Karachi and was sentenced as under:

"Accused Yaseen Baloch son of Manzoor Baloch was convicted for offences under section. 7(1) (a) of ATA 1997 read with Section 302/34 P.P.C. and sentenced to death for causing death of Muzaffar Hussain and to pay fine of Rs.50,000/- and compensation under section.544/ A Cr.P.C. Rs.100,000/- payable to the legal heirs of deceased Muzaffar Hussain and in default of payment of fine he shall further undergo S.I. for one year;

Accused Yaseen Baloch son of Manzoor Baloch was convicted for offences under section. 7(1) (a) ATA of 1997 read with Section 302/34 P.P.C. and sentenced to death for causing death of Mst. Shazia Begum wife of Muzaffar Hussain and to pay fine of Rs.50,000/- and compensation under section 544/ A Cr.P.C. Rs.100,000/- payable to the legal heirs of deceased Shazia Begum and in default of payment of fine he shall further undergo S.I. for one year;

Accused Yaseen Baloch son of Manzoor Baloch was convicted for offences under section 7(1) (a) of ATA 1997 read with Section 302/34 P.P.C. and sentenced to death for causing death of Abdul Samad son of Muzaffar Baig and to pay fine of Rs.50,000/- and compensation under section 544/A Cr.P.C. Rs.100,000/- payable to the legal heirs of deceased Abdul Samad and in default of payment of fine he shall further undergo S.I. for one year;

Accused Yaseen Baloch son of Manzoor Baloch was convicted for offences under section. 7(1) (a) ATA of 1997 read with Section 302/34 P.P.C. and sentenced to death for causing death of Imran step son of Muzaffar Baig and to pay fine of Rs.50,000/- and compensation under section.544/A Cr.P.C. Rs.100,000/- payable to the legal heirs of deceased Imran and in default of payment of fine he shall further undergo S.I. for one year;

Accused Yaseen Baloch son of Manzoor Baloch was also convicted for offences under section. 7(1)(c) of ATA 1997 read with Section 324/34 P.P.C. for attempt to commit murder of Mst. Muneeza and causing injury and sentenced to undergo 10 years' R.I. and to pay fine of Rs.50000/- and in default of payment of fine he shall further undergo S.I. for one year;

Accused was convicted for offence 302/34 P.P.C. to undergo imprisonment for life on each count for causing death of Muzafar Baig, Shazia, Abdul Samad and Imran and to pay fine of Rs.50,000/- and compensation of under section 544/A Cr.P.C. and fine of Rs.100,000/- payable to the legal heirs of deceased and in default of payment of fine he shall suffer R.I. imprisonment for one year.

Accused Yaseen Baloch son of Manzoor Baloch was also convicted for offences under section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to undergo R.I. for 07 years and to pay fine of Rs.50000/- and in default of payment of fine he shall further undergo S.I. for one year;

All the sentences were ordered to be run concurrently and the death sentences were subject to confirmation by this court.

Accused was also extended benefit of Section 382-B Cr.P.C."

1. The brief facts of the case as per prosecution are that on 29.12.2013 at about 0810 am ASI Sedar Khattak was duty officer at P.S. Maripur. Someone informed him that a few dead bodies were lying at Gabo Pat near Tool Tax Hawksbey Road Maripur. He made entry in daily Roznamcha and went to the place where he came to know that dead bodies were shifted to Civil Hospital. He then reached at Civil Hospital and found the dead bodies of Muzaffar Baig, Shazia Begum, Abdul Samad and Imran. He wrote a letter to MLO Civil Hospital and on identification of relatives of deceased Shujat and Naheed Begum inspected the dead bodies and prepared Inquest Reports and after completion of their postmortem the dead bodies were handed over to their legal heirs. One Injured Muniza was also admitted in the Emergency Ward Civil Hospital and was shifted to Abbasi Shaheed Hospital for further treatment. ASI Sedar Khattak then went to Abbasi Shaheed Hospital, gave letter to MLO for recording her statement which was not allowed. He then came back to P.S. Maripur where three children namely Iqra aged 13/14 years, Kiran aged 11/12 years and Sumeer aged about 2/3 years were present whom he delivered to their uncle Mushtaque. He also recorded statement under section 154 Cr.P.C. of Mushtaque who stated that the deceased Muzaffar Baig was his brother-in-law and on 29.12.2013 he was present at his house when at 8.15 am, he received information on phone that his brother-in-law Muzaffar Baig and his family members have been expired after firing and their dead bodies have been taken to Civil Hospital. He reached at hospital and found the dead bodies of his brother-in-law Muzaffar Baig, sister Shazia Begum, nephews Abdul Samad and Imran. His niece Muniza aged about 18 years was also at the hospital who was conscious and she told him that at about 02.00 am the family members were taking meal when (1) Abdul Rasheed alias Chief (2) Mehar Bux son of Rasool Bux, (3) Nazeer Baloch alias Mulla son of Muhammad Yaqoob, (4) Adil son of Zafar Hussain, (5) Yasin Baloch son of Manzoor Baloch and 3/4 unknown persons arrived and started beating them. All were holding weapons and on the point of weapons they also committed rape upon her and her mother Mst. Shazia. Thereafter they took the family members at Thandi Sarak near Gabo Pat and made fires upon Muzaffar Baig, Shazia Begum, Abdul Samad and Imran. She along with her younger brother Sumeer aged 21/2 years and sisters Iqrar aged 13 years and Kiran aged 12 years and the culprits also made fires upon them and one bullet hit to her belly through and through and she fell down and was taken to Civil Hospital by Chippa Ambulance. The complainant thereafter went to Abbasi Shaheed Hospital taking Muniza and got her admitted there. According to the complainant the said Muniza was pregnant and on receipt of bullet her pregnancy miscarried. His niece was unconscious after operation. On the basis of S.154 Cr.P.C. statement of Mushtaque FIR No.459/2013 was registered at P.S. Maripur, Karachi. Accused Yasin Baloch was arrested on 30.12.2013 by SIP Ismail who during patrolling with his staff, received information that the nominated accused of crime No.459/2013 were present at Baba Mazhar Budin Road Maripur. He along with his staff reached there and found the accused, who on seeing police party made fires with intent to kill them. However, two persons namely Adil son of Zafar Hussain and Yasin Baloch son of Manzoor Baloch were apprehended. From the hand of accused Adil one pistol 30 bore loaded magazine, 04 bullets and one in chamber and one Hand-Grenade recovered from his pocket and one mobile phone Nokia and cash Rs.1900/- recovered. From the accused Yasin one 30 bore pistol loaded magazine 03 bullets and one in chamber recovered and from his pocket of shirt Rs.700/- also recovered. They disclosed the names of absconding accused as Abdul Rasheed, Mehar Bux, Mulla Nazeer and Mullah Zubair. He called BDU team, prepared mashirnama of arrest and recovery and registered FIRs being Crime Nos.460/2013 to 463/2013 and then handed over the said four FIRs to SIO Ajmal. On 21.4.2014 the accused Wajid Ali was arrested in another case of P.S. Maripur and also re-arrested in this case.

2. On completion of investigation the Investigating Officer submitted charge-sheet before the trial court. The joint charge was framed which was read over to the accused on 26.03.2015 by the learned Judge Anti-Terrorism Court-VII Karachi to which he pleaded not guilty and claimed trial.

3. In order to prove its case, the prosecution examined 12 PWs and exhibited various items and other documents. The appellant recorded his statement under Section 342 Cr.P.C. whereby he claimed that he was innocent and had been falsely implicated in this case by the complainant Mustaque. In support of his defence case the appellant gave evidence on oath whereby he claimed that he had been falsely implicated in this case by Mustaque due to enmity who was unit in charge of MQM and who was residing in the same area and that on 29.12.2013 (the day of the incident) he along with his father was picked up by the police from his house and falsely implicated in this case. He called 2 DWs in support of his defence case that he was taken from his house by the police. He denied his involvement in any encounter with the police and stated that the pistol which was allegedly recovered from him had been foisted on him by the police.

4. After appreciating the evidence on record, the learned trial court convicted and sentenced the appellant as set out earlier and hence, the appellant has filed this appeal against his convictions and sentences.

5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellant has contended that the entire prosecution case revolves around the evidence of eye-witness PW 6 Mst Muniza which could not be safely relied upon as she had given her evidence at the instance of her relative complainant Mushtaque who had enmity with the appellant, that her evidence that she had been raped had been disbelieved by the trial court and as such her whole evidence should be discarded; that even if she had been fired upon it could not be proven that the appellant had fired on her or any of her family members; that there were material contradictions in her evidence and the medical evidence and as such her evidence should be disbelieved on this count as well as it did not ring true; that the pistol was foisted on him and even otherwise he had been acquitted in the encounter case; that there was no other evidence against the appellant and as such the appellant should be acquitted of all charges by extending him the benefit of the doubt.

7. On the other hand learned Additional Prosecutor General appearing on behalf of the State and also representing the complainant has fully supported the impugned judgment. In particular he has emphasized that the appellant can be convicted based on the evidence of a sole eye-witness provided that it is reliable, trust worthy and confidence inspiring as it was in this case and as such the appeals should be dismissed in respect of the appellant and the confirmation reference answered in the affirmative due to the heinous nature of the offences. In support of his contentions he has placed reliance on the cases of Muhammad Mansha v The State (2001 SCMR 199), Ijaz Ahmad v The State (2009 SCMR 99), Muhammad Ehsan v The State (2006 SCMR 1857), Allah Ditta v The State (PLD 2002 SC 52), Farooq Khan v The State (2008 SCMR 917) and Zia Ullah and another v The State (2021 SCMR 1507).

8. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant's counsel, the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar.

9. Before proceeding further we are fully conscious that this was a case of a particularly serious and heinous nature which concerns 4 brutal murders one of whom was a young child and the gang rape of two women however as Judges we cannot be swayed by the brutality of the offences which have been committed and are obligated to decide these appeals based on the strength of the evidence before us and our reappraisal of such evidence.

10. At the outset based on our reassessment of the evidence and in particular the medical evidence and the medical reports we find that the prosecution has proved beyond a reasonable doubt that on 29.12.2013 at about 02 am Muzafar Baig, Shazia Begum, Imran and Abdul Sarmad (collectively referred to as the deceased) were all murdered by firearm at Thandi Sarak Gabo Pat.

11. The questions before us are essentially (a) who murdered the deceased and injured Ms Muniza at the time, date and place as per the charge and (b) whether an unlicensed firearm was recovered from the appellant.

12. It is significant to note that vide the impugned judgment the appellant was acquitted for offences under sections 353/324/34 P.P.C. and S.376 P.P.C. (gang rape). The State has not filed an appeal against such acquittals which have reached finality. The appellants co-accused Wajid was acquitted of the entire charge.

13. It is also significant that originally the appellant was to face trial with co-accused Adil and Abdul Basit for the same offences however since the aforesaid co-accused were minors their trial was separated from that of the appellant and based on the same evidence the co-accused Adil and Abdul Basit have been acquitted of all charges by this court vide judgment dated 10.11.2021 in Spl. Criminal AT Appeal No.104 of 2021.

14. We find that when we examine the evidence in a holistic manner based on our reassessment of such evidence the prosecution has NOT proved beyond a reasonable doubt that the appellant murdered the deceased keep'ing in view the fact the accused gave evidence under oath and called defence witnesses to show that he was arrested from his home by the police and then falsely implicated in this case and the case against him under section.23 (1) (i) of the SAA 2013 for the following reasons;

(a) The prosecution case revolves around the evidence of the sole eye-witness PW 6 Muniza. Yes, she was an injured eye-witness who was allegedly raped but this does not mean that her evidence is automatically to be believed. Her evidence has to be analyzed in terms of its reliability and whether it is confidence inspiring and whether there is any corroboration.

(b) When taken together the following findings tend to cast doubt on her evidence and the prosecution case;

(i) According to her evidence the accused barged into her house at 2am in the morning when all the deceased and herself were apparently awake eating dinner which to us seems some what odd to say the least. At such a late hour most families have eaten and have long since gone to bed.

(ii) Apparently she narrated the incident to the complainant Mustaque whilst she was being treated in hospital yet according to the evidence of PW 3 Sedar Khan when he went to take the statement of Ms Muniza in hospital the Dr. informed him that she was unable to make a statement and stopped him from doing so which tends to caste doubt on the content of the later FIR lodged by the complainant.

(iii) At 1800 hrs PW 3 Sedar Khan recorded the statement of the complainant Mustaque at his home who gave a very detailed statement of the incident i.e rape and murder which had allegedly been given to him earlier by Ms Muniza at the hospital which even gave the names of all the accused and co-accused. Such detail in the FIR based on the hearsay evidence of an injured women who was not well enough to record her statement before the police at about the same time as she gave the information to the complainant is also some what dubious.

(iv) According to Ms Muniza's evidence after the incident she managed to reach PS Maripur with her younger brother and sister. However no FIR was lodged at that time and no police entry to that effect has been produced. It seems that the police called a chippa ambulance for this young injured women and sent her off unaccompanied to hospital. No member of Chippa was examined as a PW and PW 3 Sedar Khan who was on duty at 8 am that morning at PS Maripur had no idea that Ms Muniza had reached the PS in the morning. He was only informed where the dead bodies were lying and when he reached that place found that they had already been taken to civil Hospital. This is also very surprising conduct on the part of Ms Muniza and the police and does not particularly accord with natural human conduct based on the particular facts and circumstances of the case

(v) With regard to her rape and that of her mother Ms Shazia in her evidence she states that;

"Yasin Baloch (appellant) and Adil took me in a room and they committed Zinna on me forcibly. Thereafter Rashid, Mehr Bux took my mother Shazia in a room and committed Zina with her".

The appellant vide the impugned judgment has already been acquitted of the rape of Ms Muniza and Ms Shazia as such her evidence with regard to this aspect of the case has been disbelieved by the trial court and no appeal against the appellants acquittal in respect of this offence has been made by the State and as such his acquittal has reached finality. The trial court also acquitted Adil of the rape of Ms Muniza vide judgment dated Judgment dated 28.03.2020 passed by ATC Court m Karachi. Such findings put her entire evidence in doubt based on the case of Notice to Police Constable Khizer Hayat (PLD 2019 SC 527) which endorsed the applicability of the principle of "falsus in uno, falsus in omnibus" in Pakistani law in the following terms at P.562 Para 21;

"21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may he rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury."(bold added)

(vi) Significantly when PW 3 Sedar Khan went to the house (wardat for the rape) he stated in his evidence that;

"We had seen the house from the inside but could not find anything left by the culprits which can be treated as proof of their presence in the house".

This evidence also tends to caste doubt on the prosecution case as according to the prosecution about 10 heavily armed men entered this rather small house, beat up and tied up the occupants of whom there were about 8, gang raped two of the female occupants and then forcibly took them all from the house yet the house appears to have been in an undisturbed state which would not support such an incident taking place in the house. It is also significant that Ms Muniza's eye-witness S.161 Cr.P.C. statement was made after a considerable delay of 6 days which gave her a chance to improve it or ensure that it was in line with the very detailed FIR lodged by her father based on her hearsay.

(vii) Ms Iqra who was the daughter of one of the deceased and Kiran who was the son of one of the deceased who were also in the house at the time of the beatings and rape and were also taken to the plot where they also witnessed the shooting of the deceased and were saved by PW Ms Muniza were about 13 to 14 and 12 to 13 years of age respectively at that time and would have been about 15 to 16 and 14 to 15 years of age respectively at the time of trial but did not give evidence for the prosecution at trial. We find this to be rather surprising as both would have been mature enough to support the evidence of Ms Muniza and as such it appears that the prosecution deliberately chose to omit some of the best evidence without any reason which tends to undermine the prosecution case.

(viii) According to the evidence of Ms Muniza after the rape the occupants of the house were forcibly removed by the culprits and were taken to a vacant plot where her mother was raped again. She does not say who raped her mother at the plot. According to her evidence the accused all then made indiscriminate fire on them which lead to the death of the deceased and her injury. She does not name a single accused who was present at the vacant plot and opened fire on the deceased and her. According to her own evidence there was no light available at the plot at the time of the shooting of the deceased. The question therefore arises whether it can be safely found that all of the about 10 persons who entered her house heavily armed were present at the time when the deceased were shot. One or two might have left the group. She does not identify the appellant as being present by name at the time of the shooting. Furthermore, in her evidence she states that the culprits made indiscriminate fire and that the distance of fire was neither from close range or from a distance. Such evidence is not supported by the medical evidence. Three of the 4 deceased received fire shot injuries to the head where blackening and charring was found by PW 5 Dr.Ahmed who was the MLO who carried out 3 of the 4 post mortems of the deceased which indicates that 3 out of the 4 deceased were shot from a very close range. One deceased received one fire shot to the head, 2 of the deceased received two fire shots each and one of the deceased received three fire shots when considered against the close distance of the shots also indicates that this was not indiscriminate firing but execution style killings which contradicts the evidence of PW Muniza on this aspect of the case. The fact that the accused left the scene as they all ran out of ammunition and then returned also does not appeal to reason logic or common sense as how could about 10 heavily armed men all run out of ammunition when shooting 4 people with about only 12 bullets from relatively close range? Again this suggests that there were fewer than 10 heavily armed men and as such some of the 10 men from the house might not have been present at time when the deceased were shot. Furthermore, if it was dark how it was possible for Ms Muniza to recognize accused Abdul Basit who was according to her allegedly accidentally shot by the other accused? Interestingly she mentions no other accused by name which tends to indicate that at trial she was trying to negate accused Abdul Basit's defence that he was not present as he was shot by members of the Lyari Gang war and was receiving hospital treatment at the time of the incident. It is also significant and suspicious that despite a long and detailed narration of the incident given to the complainant Mustaque whilst she was wounded in hospital she neglected to state this aspect of the case i.e regarding Abdul Basit being shot.

(ix) It may be that Ms Muniza was present and was shot when the deceased were murdered but she has not produced any medical evidence of her gunshot injury and we find that she cannot say for certain that the appellant was present at the time of the shooting who has given evidence that he was not present during the incident and produced DW's in support of his case.

(x) On the appellant's arrest after an encounter with the police an unlicensed pistol was recovered from him however he has been acquitted in the encounter case. He was arrested along with minor appellant Adil after the encounter who was also acquitted in the encounter case and the case under SAA 2013 for carrying an unlicensed pistol on the basis that the evidence of the prosecution witnesses in respect of this aspect of the case had been disbelieved who are the same PW's in this case as noted by this court in its earlier referred to judgment dated 10.11.2021 in Spl. Criminal AT Appeal No.104 of 2021. Appellant Adil's acquittal in the case under the SAA 2013 was not appealed by the State and has reached finality and as such we find that we cannot convict the appellant under the SAA for the reasons mentioned above and as such he is acquitted of this charge under S.23(1) (i) of the SAA 2013.

(xi) This finding also means that the place of arrest with respect to appellant is now in doubt and it cannot be ruled out that he was arrested from his house as per his defence case and the pistol was foisted on him by the police.

(xii) In any event the pistol recovered from him was not sent for an FSL report in respect of the empties recovered at the wardat of the murders so the recovered pistol story which we have disbelieved cannot link him to the murder scene.

(xiii) There was no motive or reason for the appellant to break into the house of the deceased and gang rape two women and aim to kill the entire occupants of the house. On the contrary complainant Mustaque had an enmity with co-accusedAdil which gave the complainant a reason to falsely implicate the appellant in this case in league with the police some of whose evidence has already been disbelieved by us when acquitting the appellant and Adil in the encounter and Arms cases which castes further doubt on the reliability of the prosecution case.

(xiv) Apart from the evidence of PW eye-witness Muniza there is no other supportive or corroborative evidence in respect of the rapes and the murders against the appellants which could link them to these offences. In fact as we have noted above there are numerous doubts in the evidence of PW eye-witness Muniza's evidence and we find that we cannot rely safely rely on it to convict the appellant for the offences for which he has been charged without some unimpeachable corroborative or supportive evidence which as discussed above there is none.

(xv) Furthermore, this court has already acquitted minor co-accused Adil and Abdul Basit of the murder of the deceased and injury to Ms. Muniza who had the same role as the appellant in the murders based on the same evidence before this court and as such we find that in these circumstances we are unable to convict the appellant for the murder of the deceased and the injury to Ms. Muniza and hereby acquit him of the same based on the benefit of the doubt which was also extended to co-accused Adil and Abdul Basit by this court in its earlier referred to judgment dated 10.11.2021 in Spl. Criminal AT Appeal No.104 of 2021.

2024 M L D 718

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J.

Muhammad Jaro alias Mando---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. S-90 of 2019, decided 26th January, 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 father of the complainant by firing ---Prosecution examined three eyewitnesses of the incident who had fully supported the case and they being the natural witnesses were available at the place of incident situated in front of their house in a street alongwith deceased being real father of complainant and brother of remaining witnesses---All three eyewitnesses were cross-examined by defence but no major contradiction was brought on record which might suggest that the accused was falsely involved in a murder case of his real brother---Ocular account furnished by three eyewitnesses was further supported by the medical evidence in which Medical Officer in his evidence deposed that he conducted postmortem of deceased and found that the deceased received 07 firearm injuries, 03 were entry wounds and 03 were exit wounds, however 7th injury was of entry without exit and the Medical Officer recovered one bullet from left side back chest which was the continuation of wound of entry No.7---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 against the accused beyond shadow of any doubt---Appeal against conviction was accordingly dismissed.

Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155; Muhammad Asif v. The State 2017 SCMR-486; Muhammad Mansha v. The State 2018 SCMR 772; Dur Muhammad and another v. The State and another 2020 YLR 470 and Naseer Ahmed v. The State and others 2020 YLR 488 ref.

(b) Criminal trial---

---Medical evidence---Scope---Medical evidence by itself does not throw any light on the 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 injuries and death, and presence of an injured witness or the injured accused at place of occurrence, but it did not connect accused with commission of the offence.

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.

(c) Criminal trial---

---Witness---Evidence of sole eyewitness---Scope---Sole evidence of a material witness i.e. an eyewitness 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.

Muhammad Ehsan v. The State 2006 SCMR 1857; Niaz-Ud-Din v. The State 2011 SCMR 725 and Allah Bakhsh v. Shammi and others PLD 1980 SC 225 rel.

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

---S. 302(b)---Qatl-i-amd---Appreciation of evidence---Related and interested witnesses---Scope---Accused was charged for committing murder of the father of the complainant by firing---Defence mainly focused on the point that the witnesses were near relatives to deceased and were interested therefore their evidence could not be relied upon---Such contention had no force as in the instant matter, 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---Accused was also real brother of the deceased and two eye-witnesses who had deposed against him---No chance of mistaken identity of the accused was made out---Where the witnesses fell within the 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 witnesses of truth but were "interested"---An interested witness is not one who is relative or friend but is one who has a motive to falsely implicate an accused---Mere relationship of eye-witnesses with the deceased alone is not enough to discard testimony of the complainant and his witnesses---Circumstances established that the prosecution had proved its case against the accused beyond shadow of any doubt---Appeal against conviction was accordingly dismissed.

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

---S. 302(b)---Qatl-i-amd---Appreciation of evidence---Minor contradictions in the statements of witnesses---Not consequential---Accused was charged for committing murder of the father of the complainant by firing---Defence had pointed out some minor contradictions in the evidence which were not sufficient to discard evidence of the eye-witnesses who had fully supported the case of prosecution on every aspect---Where in the evidence, the prosecution established its case beyond reasonable doubt then if there arose some minor contradictions which always were available in each and every case as no one could give evidence like a pen-picture, the same were to be ignored---Circumstances established that the prosecution had proved its case against the accused beyond shadow of any doubt---Appeal against conviction was accordingly dismissed.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Sajid Hussain Mahessar for Appellant.

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

Date of hearing: 16th January, 2023.

Judgment

ZULFIQAR ALI SANGI, J:---The above listed criminal jail appeal is directed against the judgment dated 12.09.2019, delivered by learned lst Additional Sessions Judge/MCTC, Larkana, in Sessions Case No.446/2016 (Re. St. v. Muhammad Jaro alias Mando Veesar), emanating from FIR bearing Crime No.77/2016, for offence punishable under section 302 P.P.C. registered with Police Station, Ratodero, whereby the appellant has been convicted for an offence punishable under section 302 (b) P.P.C. and sentenced to suffer rigorous imprisonment for life as "Tazir" with compensation of Rs.500,000/- to be paid to the legal heirs of deceased and in default thereof, to suffer simple imprisonment for six months, with benefit of Section 382-B Cr.P.C.

1. Succinctly, the facts of case as depicted in FIR lodged by complainant Muhammad Ali on 07.05.2016, at 1800 hours, are to the effect that on 06.05.2016, there was exchange of harsh words in between his father Zamir Ahmed Veesar and his uncle Muhammad Jaro alias Mandop Veesar over the matter of kids whereupon his uncle on being annoyed, threatened him of murder but the complainant paid no heed to it and then he alongwith his father, uncles Aijaz Ali and Mushtaque Ali were chit-chatting in a common street adjacent to his house, in the meantime, at about 07.30 P.M, he saw his uncle Muhammad Jaro alias Mando Veesar (present appellant) came in anger and while raising hakal took out pistol from his fold and fired four shots at his father Zamir Ahmed which hit him and he fell down raising cry. The complainant party raised hakals to the accused but he made his escape good with his pistol. They then saw Zamir Ahmed having fire arm injuries on different parts of his body which were bleeding and after intimating the police, he was immediately shifted to Taluka Hospital Ratodero but he succumbed to injuries. After observing usual formalities of postmortem, the dead body of his father was delivered to the complainant who after funeral, came at police station and lodged FIR against the accused.

2. On completion of investigation, the police submitted final report under section 173 Cr.P.C. against present appellant/accused before the Court of concerned Judicial Magistrate where the case papers were supplied to him under receipt. Thereafter, the case on being sent up before the Court of learned Sessions Judge, Larkana, was then made over to learned trial Court for its disposal according to law.

3. The formal charge was framed against present appellant/accused, to which he pleaded not guilty and claimed trial.

4. In order to establish accusation against the appellant/accused, the prosecution examined in all eight witnesses i.e PW-01 Complainant Muhammad Ali, PW-02 Eye-witnesses Mushtaque Veesar, PW-03 Aijaz Ali, PW-04 PC Faiz Muhammad, PW-05 Tapedar Nazir Hussain Machhi, PW-06 Autthor of FIR/SIO Gul Muhammad Korai, PW-07 medical officer Dr.Ali Asghar Abbasi and PW-08 Mashir Nasrullah Veesar, who all produced certain relevant documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.

5. The present appellant/accused in his statement recorded in terms of Section 342 Cr.P.C., denied the allegations leveled against him by pleading his innocence. However, he neither examined himself on oath in disproof of the charge nor led any evidence in his defence.

6. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused vide impugned judgment, as discussed above.

7. Per learned defence counsel, there are material contradictions in the evidence of prosecution witnesses which have shattered veracity of their evidence; that the complainant and PWs being related inter-se are interested witnesses and their evidence has no credibility, as such the same cannot be relied upon without independent corroboration; that there is conflict in between the ocular and medical account; that the prosecution has failed to prove motive; that the weapon allegedly secured from appellant/accused was indeed foisted upon him at the behest of complainant party. Summing up his contentions, the learned defence counsel submitted that present accused has been arraigned in the present case on account of earlier grudge over the matter of kids which is discernible from the narration given in FIR itself. He lastly concluded that the case of prosecution is doubtful and appellant/accused is entitled to his acquittal in circumstances oof the case. In support of his contentions, he relied upon case laws reported as Abdul Jabbar alias Jabbari v. The State (2017 SCMR 1155), Muhammad Asif v. The State (2017 SCMR 486), Muhammad Mansha v. The State (2018 SCMR 772), Dur Muhammad and another v. The State and another (2020 YLR 470) and Naseer Ahmed v. The State and others (2020 YLR 488).

8. In rebuttal to above contentions, learned D.P.G for the State submits that all the witnesses have fully supported the case of prosecution and no any major contradiction has been noticed in their evidence; that an innocent person has been done to death at the hands of appellant/accused over the matter of kids; that the ocular evidence is consistent with medical as well circumstantial account; that recovery of empties from the venue of occurrence and that of weapon secured from the possession of present appellant/accused on chemical analysis has substantiated the involvement of present appellant/accused in commission of the incident; that the chemical examiner's and FSL reports have fully supported the case of prosecution, in that situation, the learned trial Court finding the appellant/accused guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which does not call for any interference by this Court, hence, the appeal filed by him being meritless is liable to its dismissal.

9. I have given due consideration to the arguments advanced by learned counsel for the parties and have minutely gone through the material made availnble on record with their able assistance.

10. The prosecution examined three eye-witnesses of the incident viz. PW-01 Muhammad Ali (complainant), PW-02 Mushtaque and PW-03 Aijaz Ali who have fully supported the case and they being the natural witnesses were available at the place of incident situated in front of their house in a street alongwith deceased being real father of complainant and brother of PWs Mushtaque and Aijaz. They in one voice deposed that on 06.05.2016, they alongwith deceased Zamir Ahmed were busy in chit-chatting in the main street situated at their house where at 07.30 p.m, accused Muhammad Jaro (real brother of deceased and two PWs Mushtaque and Aijaz) came there, took out pistol from fold of his shalwar, fired upon the deceased who received two fires shots on left arm, one fire shot below his elbow and other fire shot on his chest and fell down. PWs raised hakal to accused, whereupon, accused fled away. They took the deceased to Taluka Hospital Ratodero but he died of injuries on the way. After conducting postmortem they buried the deceased and on next date i.e 07.05.2016, the FIR was registered by them against the accused. All three eye-witnesses were cross-examined by learned defence counsel but no major contradiction was brought on record which may suggest that the appellant was falsely involved in a murder case of his real brother.

11. The ocular account furnished by above three eye-witnesses is further supported by the medical evidence in which PW-07 Dr.Ali Asghar in his evidence deposed that he conducted postmortem of deceased Zamir Ahmed and found that the deceased received 07 firearm injuries, 03 were entry wounds and 03 were exit wounds, however 7th injury was of entry without exit and the doctor recovered one bullet from left side back chest which was the continuation of wound of entry No.7, as per his opinion, all the injuries were ante-mortem in nature and caused by firearm. The death of deceased occurred due to excessive hemorrhage and intra thoracic cavity and irreversible shock due to the main organs and vessels i.e right lung, left kidney, cardiac vessels. It is observed that medical evidence is in the nature of supporting, confirmatory or explanatory of direct or circumstantial evidence, and is not "corroborative evidence" in sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with commission of the offence. Medical evidence by itself does not throw any light on the 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 injuries and death, and presence of an injured witness or the injured accused at place of occurrence, but it does not connect accused with commission of the offence. It cannot constitute corroboration for proving involvement of accused person in commission of the offence, as it does not establish identity of the accused person. Reliance can be placed on cases of 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).

12. In the present case, three eyewitnesses have fully supported the case as has been discussed above. However, the 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. The accused can be convicted if the Court finds direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring. In this respect, reliance is placed on cases of Muhammad Ehsan v. The State (2006 SCMR 1857) and Niaz-Ud-Din v. The State (2011 SCMR 725). Further, the Honourable Supreme Court in case of Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) also held that "even in murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable." 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). The failure of direct evidence is always sufficient to hold a criminal charge as 'not proved' but where direct evidence holds the field and stands 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. Reliance can safely be placed on case of Muhammad Ehsan v. the State (2006 SCMR-1857), wherein the Honourable Supreme Court of Pakistan has held that;-

"5. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory(' rule to be applied invariable in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence".

1. The ocular evidence which was supported by medical evidence as discussed above is further corroborated from the evidence of duty incharge PW-6 ASI/SIO Gul Muhammad who registered FIR of the complainant and thereafter conducted investigation of the case, he deposed that on 07.05.2016 while posted at P.S Ratodero being ASI/day incharge, complainant Muhammad Ali Veesar came and narrated the facts of cognizable offence which he incorporated in book of 154 Cr.P.C. and obtained his LTI and signed himself. After registration of FIR, he rushed to Taluka Hospital Ratodero where he found dead body placed in mortuary room of hospital, prepared mashirnama of dead body of deceased in presence of mashirs namely Nazir Ahmed and Nasrullah and obtained their LTIs, he handed over dead body of the deceased to PC Faiz Muhammad for conducting postmortem. As per his evidence, he visited the place of vardat on pointation of the complainant in presence of same mashirs wherefrom he recovered blood stained earth and 04 empties of 32 bore pistol which were sealed by him separately and prepared such mashirnama. He also prepared danistnama and obtained LTIs of both the mashirs. The accused was arrested by him on 21.05.2016 from Korkani turn alongwith 32 bore pistol in presence of private mashirs namely Altaf Hussain and Ali at evening time under the mashirnama of arrest. Thereafter, he brought the accused and case property at P.S where he registered separate case Under Section 25 S.A.A, 2013 against accused on behalf of State. His evidence was further corroborated by PW-8 Nasurullah Veesar (Mashir) who deposed that on 07.05.2016, one Sobedar by caste Korai rushed at Taluka Hospital Ratodero who examined dead body of the deceased, prepared mashirnama which was signed by him and co-mashir. As per his evidence, the place of vardat was inspected by investigation officer from where he recovered 04 empty cartridges and blood stained earth and prepared mashirnama in their presence and obtained their LTIs. Thereafter, Sobedar sealed the case property at the spot. He deposed that danistnama was also prepared by the same ASI. Both these witnesses were cross-examined by learned defence counsel but could not find any substance favourable to the appellant.

2. Learned counsel for appellant mainly focused on the point that the witnesses are near relatives to deceased and are interested therefore their evidence cannot be relied upon, hence the contention raised has no force as in the instant matter, the eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence. Both the parties are known to each other as is evident from their evidence and this is a day time incident, the appellant is also real brother of the deceased and two eye-witnesses who have deposed against him. There was no chance of mistaken identity of the appellant. It is observed that where the witnesses fall within the category of natural witnesses and detailed the manner of the incident in a confidence-inspiring manner then only escape available with the accused/appellant is that to satisfactorily establish that witnesses are not the witnesses of truth but "interested" one. An interested witness is not the one who is relative or friend but is the one who has a motive to falsely implicate an accused. Mere relationship of eye-witnesses with the deceased alone is not enough to discard testimony of the complainant and his witnesses. In matters of capital punishment, the accused would not stand absolved by making a mere allegation of dispute/enmity but would require 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 innocent at the cost of escape of "real culprits". No substance has been brought on record by the appellant to justify his false implication in this case at the hands of complainant party on account of any previous enmity. In case of Zulfiqar Ahmed and another v. State (2011 SCMR 492), the Supreme Court of Pakistan has held as under:-

2024 M L D 733

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

Muhammad Ishaq alias Bobi alias Hussain and another---Appellants

Versus

The State ---Respondent

Special Criminal A.T. Appeal No. 219 of 2010 and Confirmation Case No. 03 of 2022, decided on 19th May, 2022.

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

---Ss. 302(b), 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Delay of two days in lodging FIR explained Accused were charged for committing murder of deceased advocate by Firing---First Information Report was lodged after a delay of two days---Reason for the delay in lodging the FIR was that the complainant immediately after the deceased was shot took him to hospital where he learnt that the deceased had died and then took the dead body to another hospital for legal formalities including post mortem and thereafter since the deceased's relatives were not from "K" he helped take the body of the deceased to his ancestral village for burial and thereafter he returned to "K" and immediately lodged the FIR---As such any delay in lodging the FIR had been fully explained---Importantly the FIR was against unknown persons and as such there was no attempt to falsely implicate the accused or any other person or else the accused would have been specifically named in the FIR---Furthermore, the complainant had no enmity with the accused and had no reason to falsely implicate them and as such it was found that the delay in lodging the FIR was not fatal to the prosecution case as the delay had been explained---Accused were not nominated in the FIR and as such the delay in filing the FIR had not benefited the prosecution or prejudiced the accused---Circumstances established that the prosecution had proved its case against the accused except under Anti-Terrorism Act, 1997---Appeal was partly allowed in respect of the Anti-Terrorism Act offences and dismissed in respect of the P.P.C. offences.

Babar Masih v. The State 2020 YLR 1557; Provincial Government of Khyber Pakhtunkhwa through Provincial Secretary Home and 7 others v. Aftab Mohammad Usman Khan and another 2020 YLR 1563; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Imran Ashraf and 7 others v. The State 2001 SCMR 424; Gulfam and another v. The State 2017 SCMR 1189; Hayatullah v. The State 2018 SCMR 2092; Muhammad Akram v. The State 2009 SCMR 230; Patoo and another v. The State 2012 MLD 1358; Noor Muhammad v The State 1999 SCMR 2722; Dadullah v The State 2015 SCMR 85-6; Muhammad Ehsan v The State 2006 SCMR 1857; Farooq Khan v The State 2008 SCMR 917; Khadim Hussain v The State PLD 2010 SC 669; Sajid Sohail v The State 2009 SCMR 356; Muhammad Nadeem v The State 2011 SCMR 872; Sh. Muhammad Abid v The State 2011 SCMR 1148; Muhammad Ismail v The State 2017 SCMR 713; Solat Ali Khan v The State 2002 SCMR. 820; Muhammad Zaman v The State 2007 SCMR 813; The State v Ahmed Omar Sheikh 2021 SCMR 873; Muhammad Amin v The State PLD 2006 SC 219 and Manjeet Singh v The State PLD 2006 SC 30 ref.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

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

----Ss. 302(b), 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Sole eye-witness of the occurrence-evidence of---Reliance---Accused were charged for committing murder of deceased advocate by firing---Prosecution case primarily rested, but not exclusively, on the sole eye-witness to the murder of the deceased and in particular his correct identification of the accused---Said witness was not a chance witness as he was a court clerk of the deceased for over 14 months and lived with him at his house, a position which was never challenged at trial---Said witness would have been returning to the house of the deceased in the deceased's car at the time of the incident and as such was a natural witness---Said witness lodged the FIR after a short delay which had been explained as he took the body of the deceased to the deceased's relative which again went to show his closeness to the deceased---Eye-witness gave his S. 161 Cr.P.C statement and there was little improvement in his FIR and S. 161 Cr.P.C. statement to the evidence which he gave at trial---Said witness was not related to the deceased and was an independent witness who had no reason to falsely implicate the accused---Moreover, it was a day light incident and as such the firing was from close range, the witness would have gotten a good look at the accused for a reasonable period of time---According to the evidence of the said witness the firing went on for thirty seconds to one minute which gave him plenty of time to focus on the one motorcycle and the persons driving it and firing from it especially as the traffic was going very slowly under the bridge and the motorcycle had to come close to the car in order to fire at it in heavy traffic---Said witness gave hulia of both the accused in his FIR and picked out both the accused at an identification parade with a specific role---Thus, the evidence of the said witness was found to be reliable, trustworthy and confidence inspiring and was believable especially with regard to the correct identification of the accused persons---Circumstances established that the prosecution had proved its case against the accused except under Anti-Terrorism Act 1997---Appeal was partly allowed in respect of the Anti-Terrorism Act offences and dismissed in respect of the P.P.C. offences.

Muhammad Ehsan v. The State 2006 SCMR 1857; As also found in the cases of Farooq Khan v. The State 2008 SCMR 917; Niaz-ud-Din and another v. The State and another 2011 SCMR 725 and Muhammed Ismail v. The State 2007 SCMR 713 rel.

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

----Ss. 302(b), 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Delay in conducting the identification parade---Inconsequential---Accused were charged for committing murder of deceased advocate by firing---Identification parade was conducted about 14 months after the incident and about 14 days after the arrest of the accused in the case---Such delay had been explained in the evidence by the fact that the accused were busy going before other identification parades, going to other wardats on their pointation and giving confessions in other cases---Even otherwise the slight delay in holding the identification parade was not of much consequence---Circumstances established that the prosecution had proved its case against the accused except under Anti-Terrorism Act, 1997---Appeal was partly allowed in respect of the Anti-Terrorism Act offences and dismissed in respect of the P.P.C. offences.

Solat Ali Khan v The State 2002 SCMR 820 and Muhammad Zaman v The State 2007 SCMR 813. rel.

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

----Ss. 302(b), 109 & 34---Anti-Terrorism Act, 1997 (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Judicial confession, retraction of---Judicial confessions made voluntarily after following procedural formalities---Accused were charged for committing murder of deceased advocate by firing---Record showed that accused made confession voluntarily---However, it was found that nearly all the procedural safe guards were carried out by the Judicial Magistrate e.g. hand cuffs were taken off, reflection time was given, they were informed of the legal consequences of their confession and they were not handed back to the police and instead went straight to judicial remand after the confession---If there were any procedural defects those were only very minor in nature and would not affect the voluntariness or truthfulness of the confessions---In such eventualities, the retracted judicial confession of both the accused were believable as they were made voluntarily with the object of telling the truth and their contents fit in with the prosecution case and there were no material defects in the manner in which they were recorded by Judicial Magistrate---Evidence of said Judicial Magistrate also fully corroborated the content of the confessions and that all necessary procedural safeguards were adhered to---Circumstances established that the prosecution had proved its case against the accused except under Anti-Terrorism Act, 1997---Appeal was partly allowed in respect of the Anti-Terrorism Act offences and dismissed in respect of the P.P.C offences.

Majed v. The State 2010 SCMR 55 and Ghulam Nabi v. The State 2007/ SCMR 808 rel.

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

----Ss. 302(b), 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Recovery of weapons of offence from the accused and crime empties from the spot---Reliance---Accused were charged for committing murder of deceased advocate by firing---Record showed that when the accused were arrested from a shop after the incident the accused were found in possession of two unlicensed firearms, one of which matched empties which were recovered and sealed at the scene of the crime---Importantly the empties were first sent for Forensic Science Laboratory prior to the recovery of the pistol from the accused, a day after the incident and were again sent for Forensic Science Laboratory once the pistols were recovered from the accused on their arrest---On both occasions a positive Forensic Science Laboratory Report was received which proved that neither the empties nor the pistol were foisted---Circumstances established that the prosecution had proved its case against the accused except under Anti-Terrorism Act, 1997---Appeal was partly allowed in respect of the Anti-Terrorism Act offences and dismissed in respect of the P..PC. offences.

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

----Ss. 302(b), 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Police Official as witnesses---Reliance---Accused were charged for committing murder of deceased advocate by firing---Police witnesses had no enmity or ill will towards the accused and had no reason to falsely implicate them in the case---In such circumstances, the evidence of the police witnesses could be fully relied upon---Circumstances established that the prosecution had proved its case against the accused except under Anti-Terrorism Act, 1997---Appeal was partly allowed in respect of the Anti-Terrorism Act offences and dismissed in respect of the P.P.C. offences.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302(b), 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Minor contradictions in evidence---Inconsequential---Accused were charged for committing murder of deceased advocate by firing---Witnesses were consistent in their evidence---Even if there were some contradictions in their evidence, same were minor in nature and not material and certainly not of such materiality so as to affect the prosecution case and the conviction of the accused---Circumstances established that the prosecution had proved its case against the accused except under Anti-Terrorism Act, 1997---Appeal was partly allowed in respect of the Anti-Terrorism Act offences and dismissed in respect of the P.P.C. offences.

Zakir Khan v State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 Supreme Court 669 rel.

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

----Ss. 302(b), 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Unbroken chain of events---Accused were charged for committing murder of deceased advocate by firing---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the court clerk leaving in the morning with the deceased lawyer from his house in the deceased's car for court to the deceased driving the car home with the clerk in the back seat after leaving his legal office who was living with him, to the motor cyclists whom the clerk was able to identify firing on the deceased and his vehicle to the accused escaping on their motor cycle, to the deceased being taken and being pronounced dead at hospital, to the accused then being arrested with unlicensed weapons and picked out at identification parade with specific roles by the eye-witness clerk, to the judicial confessions of the accused, to the positive Forensic Science Laboratory Report in respect of the pistol which was recovered from the accused with the empties which were recovered at the scene with the pistol being used to fire at and murder the deceased, to the identification of the motor cycle used in the murder on the pointation of the accused---Circumstances established that the prosecution had proved its case against the accused except under Anti-Terrorism Act, 1997---Appeal was partly allowed in respect of the Anti-Terrorism Act offences and dismissed in respect of the P.P.C. offences.

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

----Ss. 302(b), 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Defence plea of false implication not proved---Accused were charged for committing murder of deceased advocate by firing---Undoubtedly, it was for the prosecution to prove its case against the accused beyond a reasonable doubt but defence plea should be considered if it at all could cast doubt on or dent the prosecution case---Defence case was simply one of false implication by the police---Accused did not give evidence on oath and did not produce any defence witness in support of their defence case or produce any other evidence which could dent the prosecution case---Circumstances established that the prosecution had proved its case against the accused except under Anti-Terrorism Act, 1997---Appeal was partly allowed in respect of the Anti-Terrorism Act offences and dismissed in respect of the P.P.C. offences.

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

----Ss. 302(b), 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Act of terrorism not made out---Accused were charged for committing murder of deceased advocate by firing---Record showed that present case did not fall within the purview of the Anti-Terrorism Act, 1997---In such like cases, the act of terrorism should be there and there had to be an object, intent, purpose and design to create terror on account of such act---Whether people were terrorized as a byproduct of the act did not convert the act into one of terrorism nor the fact that it might have been of a particularly brutal nature---Based on the particular facts and circumstances of the case it appeared that the offence was a simple murder by way of target killing which had no object, intent, purpose or design to create terror and as such the accused were acquitted of all offences under the Anti-Terrorism Act, 1997.

Ghulam Hussain v State PLD 2020 SC 61 rel.

Hashmat Khalid for Appellants.

Muhammad Iqbal Awan, Additional Proecutor General Sindh for the State.

Date of hearing: 11 May, 2022.

Judgment

Mohammad Karim Khan Agha, J.---Appellants Muhammad Ishaque alias Bobi alias Hussain and Muhammad Asim alias Ahmad alias Capri alias Mamo were charged sheeted to face their trial in Special Case No.2600 of 2016 (New Special Case No.225 of 2019) arising out of FIR No.402 of 2015 under sections 302/109/34 P.P.C. read with Section 7 Anti-Terrorism Act 1997 registered at PS Aziz Bhatti, Karachi. The appellants were convicted vide impugned judgment dated 22.12.2020 passed by the learned Judge, Anti-Terrorism Court No.XV1, Karachi whereby they were awarded the following sentences:

a) For causing death of the deceased Advocate Syed Ameer Haider Shah by firing, punishable under section 302 read with 34 P.P.C. both the accused are sentenced to death subject to confirmation by the High Court;

b) For causing death of the deceased Advocate Syed Ameer Haider Shah by firing, punishable under section 7(a) of the Anti-Terrorism Act, 1997 both the accused are also sentenced to death subject to confirmation by the High Court with fine of Rs.2,00,000/- (two lacs) each;

c) For the act of terrorism committed by the accused, punishable under section.7(1)(h) of Anti-Terrorism Act, 1997 both the accused are hereby also sentenced to undergo RI for (10) ten years and to pay fine of Rs.50,000/- (Fifty Thousand) each.

d) Both the present accused are hereby also directed to pay an amount of Rs.2,00,000/- (two lacs) each to the legal heirs of deceased Advocate Syed Ameer Haider Shah as compensation, as provided under Section 544-A Cr.P.C. and in default of such payment the accused shall undergo S.I. for six months.

e) Both the accused are hereby also convicted for the offence under section. 11-F and sentenced to RI for 06 months with fine of Rs.10,000/- (Ten Thousand) each and in case of failure to pay the fine, they shall serve R.I. for one month more.

f) The property of the accused are directed to be forfeited as required under section.7(2) of the Anti-Terrorism Act, 1997.

All the sentences are directed to run concurrently.The benefit of Section 382 Cr.P.C. was also extended to the accused persons.

1. The brief facts of the prosecution case are that on 30.08.2015 complainant Shahid lodged FIR that he resides in Rabia Duplex, Mosamyat, Gulistan-e-Jauhar, Karachi and working with Advocate Syed Ameer Hyder Shah. On 28.08.2015 when they were coming in his Toyota Corolla golden colour car No.APR-402, from his office situated at PECHS Society to home, at about 06:45 pm when they reached at main University road, Hassan Square three people on one motorcycle made firing upon them and fled away, resultantly Advocate Syed Ameer Hyder Shah received firearm injuries and shifted to Al-Mustafa hospital where he was pronounced dead. Accordingly the FIR was lodged against unknown accused persons.

2. After registration of FIR, the investigation was assigned to Inspector Zulfiqar Ali Bajwa of PS New Town, Karachi who after usual investigation filed the report under "A" class. Later on accused Muhammad Ishaq alias Bobi and Muhammad Asim alias Capri were arrested in other cases and during interrogation the accused made disclosure that they made firing upon the deceased Advocate Syed Ameer Hyder Shah, accordingly after collection of evidence the I.O. submitted challan against the said accused persons.

3. The prosecution in order to prove its case examined 12 PWs and exhibited various documents and other items. The statement of accused persons were recorded under Section 342 Cr.P.C in which they denied all the allegations leveled against them and claimed that they have been falsely implicated in this case.

4. After hearing the parties and appreciating the evidence on record the trial court convicted the appellants and sentenced them as set out earlier in this judgment. Hence, the appellants have filed this appeal against conviction.

5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 22.12.2020 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellants has contended that the appellants are completely innocent and have been falsely implicated in this case by the police as is evident by the two day delay in lodging the FIR which enabled the complainant to cook up a false case against the appellants at the behest of the police; that the so called sole eye-witness was a put up witness and was not present at the time of the offence and even otherwise would not have been able to safely identify the appellants as the persons who carried out the murder; that the identification parade was not in accordance with the law and as such is of no legal value; that the appellants did not make any confession before the judicial magistrate and even if such confessions were made they could not be relied upon as such confessions were retracted at trial and were not made voluntarily and as such for any or all of the above reasons the appellants should be acquitted of the charge by extending them the benefit of the doubt. In support of his contentions, he placed reliance on the cases of Babar Masih v. The State (2020 YLR 1557), Provincial Government of Khyber Pakhtunkhwa through Provincial Secretary Home and 7 others v. Aftab Mohammad Usman Khan and another (2020 YLR 1563), Muhammad Pervez and others v. The State and others (2007 SCMR 670), Imran Ashraf and 7 others v. The State (2001 SCMR 424), Gulfam and another v. The State (2017 SCMR 1189), Hayatullah v. The State (2018 SCMR 2092), Muhammad Akram v. The State (2009 SCMR 230) and Patoo and another v. The State (2012 MLD 1358).

7. On the other hand, learned Addl. Prosecutor General Sindh has fully supported the impugned judgment. In particular, he has contended that the evidence of the eye-witness can be safely relied upon as to the correct identification of the appellants; that the identification parade was carried out strictly in accordance with law; that both the appellants made confessions before the judicial magistrate and although retracted at trial could be safely relied upon as they were made voluntarily and that a pistol recovered from the appellants on their arrest matched with the empties recovered at the scene of the crime and as such the prosecution had proved its case beyond a reasonable doubt against both the appellants and their appeals be dismissed. He also contended that the confirmation reference be answered in the affirmative due to the lack of mitigating factors and the brutality of the crime. In support of his contentions, he placed reliance on the cases of Noor Muhammad v The State (1999 SCMR 2722), Dadullah v The State (2015 SCMR 856), Muhammad Ehsan v The State (2006 SCMR 1857), Farooq Khan v The State (2008 SCMR 917), Khadim Hussain v The State (PLD 2010 SC 669), Sajid Sohail v The State (2009 SCMR 356), Muhammad Nadeem v The State (2011 SCMR 872), Sh. Muhammad Abid v The State (2011 SCMR 1148), Muhammad Ismail v The State (2017 SCMR 713), Solat Ali Khan v The State (2002 SCMR. 820), Muhammad Zaman v The State (2007 SCMR 813), The State v Ahmed Omar Sheikh (2021 SCMR 873), Muhammad Amin v The State (PLD 2006 SC 219) and Manjeet Singh v The State (PLD 2006 SC 30).

8. We have heard the arguments of the learned counsel for the appellants and learned Additional Prosecutor General Sindh and gone through the entire evidence which has been read out by the learned counsel for the appellants, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

9. Based on our reassessment of the evidence of the PW's especially the medical evidence and other medical reports including the post mortem report of the deceased, recovery of empties and blood and car which the deceased was shot inside of at the crime scene we find that the prosecution has proved beyond a reasonable doubt that advocate Syed Ameer Haider Shah (the deceased) was shot and murdered by firearm on 28.08.2015 at about 1845pm whilst driving his car at main University Road near Bridge Hasan Square Gulshan-e-Iqbal Karachi.

10. The only question left before us therefore is who murdered the deceased by firearm at the said time, date and location?

11. After our reassessment of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge against the appellants except under the ATA for which they were convicted for the following reasons keeping in view that each criminal case must be decided on its own particular facts and circumstances;

(a) That the FIR was lodged after a delay of two days. The reason for the delay in lodging the FIR was that the complainant immediately after the deceased was shot took him to Al Mustafa hospital where he learnt that the deceased had died and then took the dead body to JPMC for legal formalities including post mortem and thereafter since the deceased's relatives were not from Karachi he helped take the body of the deceased to his ancestral village in District Khairpur for burial and thereafter he returned to Karachi and immediately lodged the FIR. As such any delay in lodging the FIR has been fully explained. Importantly the FIR is against unknown persons and as such there was no attempt to falsely implicate the accused or any other person or else the accused would have been specifically named in the FIR. Furthermore, the complainant had no enmity with the accused and had no reason to falsely implicate them and as such we find that the delay in lodging the FIR is not fatal to the prosecution case as the delay has been explained, the accused were not nominated in the FIR and as such the delay in filing the FIR has not benefited the prosecution or prejudiced the accused. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872)

(b) We find that the prosecution's case primarily rests, but not exclusively, on the sole eye witness to the murder of the deceased and in particular his correct identification of the appellants as the persons who respectively drove the motorcycle and shot the deceased which lead to his murder whose evidence we shall consider in detail below;

(i) Eye-witness PW 7 Shahid. He was the court clerk of the deceased lawyer who also lived with the deceased at his home. According to his evidence on 28.08.2015 as per routine he and the deceased went from the home of the deceased to the city court and then returned to the deceased office and thereafter at 6.10pm left for home in the car of the deceased who was driving the car whilst he was sitting in the rear seat. When they reached at Hassan Square Bridge at about 6.45pm he saw three persons on a motor cycle appear with two persons sitting behind the motor cycle driver who fired at them and due to their firing the deceased was injured. Their car immediately stopped and with the help of people he shifted the injured deceased to Al Mustafa hospital where the deceased was pronounced dead.

The witness was not a chance witness as he was the court clerk of the deceased for over 14 months and lived with him at his house a position which was never challenged at trial and would have been returning to the house of the deceased in the deceased's car at the time of the incident and as such was a natural witness. He lodged the FIR after a short delay which has been explained as he took the body of the deceased to the deceased's relatives at Khairpur which again goes to show his closeness to the deceased. He also gave his S.161 Cr.P.C. statement and there is little improvement in his FIR and S.161 Cr.P.C. statement to the evidence which he gave at trial. He was not related to the deceased and was an independent witness who had no reason to falsely implicate the accused. It was a day light incident and as the firing was from close range the witness would have gotten a good look at the accused for a reasonable period of time. According to the evidence of the witness the firing went on for 30 seconds to one minute which gave him plenty of time to focus on the one motor cycle and the persons driving it and firing from it especially as the traffic was going very slowly under the bridge and the motorcycle had to come close to the car in order to fire at it in the heavy traffic. He gave some hulia of both the accused in his FIR and picked out both the accused at an identification parade with a specific role. Namely, appellant Muhammed Ishaque was driving the motor cycle whilst the appellant Muhammed Asim was firing from behind the driver appellant Muhammed Ishaque which aspect was corroborated by PW 2 Vinod Kumar who carried out the identification parade whilst following all the necessary legal formalities. The identification parade was conducted about 14 months after the incident and about 14 days after the arrest of the accused in this case which delay has been explained in the evidence by the fact that the appellants were busy going before other identification parades, going to other wardats on their pointation and giving confessions in other cases. Even otherwise the slight delay in holding the identification parade is not of much consequence and in this respect reliance is placed on the case of Muhammad Zaman v. The State (2007 SCMR 813). Although 14 months might seem quite a long time there is no hard and fast rule as to the time in which an identity parade can be carried out after the incident as very often accused do escape from the crime scene and are captured much later, often after years, but obviously the sooner the identification parade is carried out the more accurate it is likely to be. In this respect reliance is placed on the case of Solat Ali Khan (Supra). The eye-witness gave his evidence in a natural and straightforward manner and emerged undented from a lengthy cross examination and as such we have no reason to doubt his evidence.

Thus, for the reasons mentioned above, whilst being on caution, we find the evidence of the eyewitness to be reliable, trustworthy and confidence inspiring and we believe the same especially with regard to the correct identification of the appellants as the persons who drove the motor bike and shot and murdered the deceased respectively and can convict on the evidence of this sole eye witness alone although it would be of assistance by way of caution if there is some corroborative/ supportive evidence. In this respect reliance is placed.pdthe case of Muhammad Ehsan v. The State (2006 SCMR 1857). As also found in the cases of Farooq Khan v. The State (2008 SCMR 917), Niaz-ud-Din and another v. The State and another (2011 SCMR 725) and Muhammed Ismail (supra). That what is of significance is the quality of the evidence and not its quantity and in this case we find the evidence of this sole eye-witness to be of good quality and believe the same especially in terms of the correct identification of the appellants who drove the motor cycle and fired on and murdered the deceased respectively.

Thus, based on our believing the evidence of the PW eyewitness especially in terms of him correctly identifying the appellants as the persons who murdered the deceased what other substantive /supportive/corroborative material is there against the appellants? It being noted that corroboration is only a rule of caution and not a rule of law. In this respect reliance is placed on the case of Muhammad Waris v The State (2008 SCMR 784).

(c) That both the appellants gave confessions before a judicial magistrate albeit later retracted that they took part in the murder of the deceased. We set out the confessions of both the accused below for ease of reference;

CONFESSIONAL STATEMENT OF ACCUSED MUHAMMAD ISHAQUE UNDER SECTION.164 CR.P.C.

My name is Muhammad Ishaq alias Bobi alias Hussain alias Abdul jabbar son of Muhammad Ibraim. I reside in Lalokhet No.2, Dakkhana Sabzi Market near Nayab Masjid. In January 2015 I and Kamran alias Kami, armed with weapon, left by a motorcycle and when we arrived at Orangi Town No.8 1/2, so a JDC ambulance was parked there. I opened fire at the ambulance and having killed its driver, we escaped away from there and came back to our house. Subsequently, in February 2015 I and Kamran alias Kami, armed with weapon, left from home and arrived at Ghosia Chowk so two Ehl-e-Tashi persons having offered their prayers, were coming back. I targeted both of them and then both of us escaped from there. Subsequently in November 2015, I and Asim left by a motorcycle from Lalokhet Dakkhana and when we arrived at Orangi Town so there we met with Arshad Rickshaw Wala, who had three 9 mm pistols. Then all three of us reached Ittehad Town from there. Arshad had recce of an FIA constable whose name I do not remember. When that person did not arrive there so we parked the rickshaw on the way and all three of us stood near the motorcycle. In the meanwhile, a Rangers mobile pulled over near Abu Huraira Mosque. That was the time of Friday prayers. At first we held a meeting and then having reached near them all of us opened fire at once. They were about four personnel. At first we murdered them then I picked up the SMG of one of the personnel and having chambered it, fired with it and then we took the SMG with us and threw the SMG at a plot at some distance and then we escaped from there. After travelling some distance we dropped off the rickshaw wala whose name was Samiullah alias Arshad and handed over the weapons back to the rickshaw wala and I and Asim came back to Liaqutabad. Then I and Asim committed the next crime in December, 2015. I and Asim, armed with 9mm pistol, left Lalokhet by our motorcycle and when we reached Parking Plaza so there we saw a military police jeep then we started its chasing it. We arrived at Gul Plaza near Tibet Centre so Asim took the motorcycle near them after that I opened fire at those police constables and then we escaped away from there and came back to our house by passing from different ways. After that we carried out our next crime against a lawyer, whose name was Ameer Haider Shah. I carried out his recce from Tariq Road. This incident is of December 2015. When that lawyer arrived near Civic Centre so I was riding the motorcycle and when we arrived near him so Asim fired upon him and then we escaped away from there. Then we committed crime against policemen in 2016. I and Asim took arms from Liaqutabad to Bangla Bazar, Orangi Town. A police mobile was parked there in which four constables were sitting out of which one of the constables got off and went to bring food so I parked the motorcycle near their mobile and both of us, having got off the motorcycle, went near the mobile. Asim fired upon the constable who had gone to bring food whereas I targeted the three constables boarded in the mobile out which one was sitting at the back while two were sitting on the front side and I fired at them and then I lifted their SMG and escaped towards (word ambiguous) got. We had gone a few paces ahead that we saw three more policemen who were probably on polio duty. I fired at those three policemen with the same SMG I had lifted but after firing two shots, the SMG stopped working after which Asim fired at them with 9mm pistol and then we escaped away from there. After that we carried out our next crime in the month of Ramazan in 2016. I and Asim, took 9rnm pistol from Lalokhet Godam and arrived near Amjad Sabri's house and kept waiting for Amjad Sabri. As soon as Amjad Sabri came out of his house we arrived before him at Lalokhet No.10 and started waiting for Amjad Sabri on the way which leads towards Civic Centre. As soon as Amjad Sabri's vehicle arrived so I fired twice or thrice at Amjad Sabri from my right side and after that Amjad Sabri's vehicle stopped so I fired four or five minutes from the front side and then we easily escaped from there. Then committed next crime in 2016 whose month I do not remember. I and Asim left with weapons and arrived at Saddar Parking Plaza. As soon as we arrived there so we saw a green color army vehicle. We parked our motorcycle next to it and I, having got off the motorcycle, fired at least 8-10 times at them and escaped away from there. Then we committed a crime at Ayesha Manzil where I and Asim targeted two traffic policemen. When I and Asim passing through various areas arrived at Ayesha Manzil so two traffic policemen were standing there at whom I opened fire and murdered them. After that I lifted their MP-5 and having escaped from there arrived in Lalokhet. Such is my statement which I have got recorded out of my own free will. I am not under any kind of pressure or influence. (bold added)

Sd/-05.12.2016

Civil Family Judge and JM Court

No.X, Karachi (West)"

CONFESSIONAL STATEMENT OF ACCUSED MUHAMMAD ASIM UNDER SECTION.164 CR.P.C.

My name is Muhammad Asim alias Capri alias Ahmed son of Abdul Rehman (late). I am resident of Karachi. ' In November 2015 on a Friday I and Ishaq left Liaquatabad and we met with a rickshaw wala inside Orangi Town from where way to Ittehad Town begins. I and Ishaq were boarded on a motorcycle. Then we left with the rickshaw wain from there because the weapons were inside the rickshaw, it kept travelling with us. Then we arrived at Abu Hurraira Masjid. The rickshaw zvala parked his rickshaw at some distance from the masjid and took our weapon from it which was inside a shopper and then he boarded our motorcycle with us. When we arrived there so the person was not there for whom he had taken us there after that he told us that Rangers personnel are deputed here, let us target them. We saw that the Rangers personnel were performing their duties near the mosque. As soon as the prayers ended, the place got a bit crowded after which we drew our pistols from the shopper and kept under our clothes and went near the Rangers personnel and then we, having conducted a meeting, encircled those personnel and then opened fire at them all at once due to which they did not even get the chance to react. After that Ishaq lifted the SMG of a Ranger personnel and in order to spread panic and fear, carried out firing from the SMG as well. Then we immediately ran away from there and having started our motorcycle crossed a ground at some distance and hid the SMG under the ground in a street and then we went to the place where the rickshaw was parked and dropped that boy near the rickshaw. Then we again started going back towards Orangi Town and again reached the same place where we had met with the rickshaw wala. We than handed over the weapons to the rickshaw wala. Then the rickshaw wala went to his home and I and Ishaq came back to our houses in Liaquatabad. Then after some days I and Ishaq again left by the motorcycle. I think it was December. We came towards Saddar Parking Plaza, where we saw that a jeep of military police was going, we chased it and when it pulled over in front of Gul Plaza before Tibbet Centre in Saddar, there were two personnel boarded in it. One of the personnel got off the vehicle and went to the market. When we were at some distance the personnel also came back and sat down on the backseat. I took the motorcycle near the jeep so Ishaq fired 5-6 times at them and we, having left from there, came back to Liaquatabad through Tibbet Centre. Then in April 2016 I and Ishaq armed with 9mm pistols, left and arrived at Banala Bazar, Orangi Town and we came on the road so a police mobile was parked there and there were three policemen inside it and one of the personnel was purchasing something from outside. They were about four policemen. We went near them and parked the motorcycle after that Ishaq fired at the personnel sitting at the back of the mobile and I fired at the personnel outside the mobile and then I and Ishaq moved towards the front side so that we may fire at the policemen sitting on the front side then we fired at both of them and Ishaq lifted the SMG of a policeman and fired for causing fear among the public. Then we left from there where three policemen who were probably on polio duty. We, having pulled over, fired at all three of them due to which they got injured and fell down and then we left from there as well. We used to carry out such crimes. In May/2016 land Ishaq went for patrolling by the motorcycle and we also took 9 mm pistols with us and when we arrived at Ayesha Manzil so we saw that two traffic police personnel were standing. I took the motorcycle near them so Ishaq fired at them due to which one of the personnel fell down whereas the other tried to run away whom we chased and Ishaq also fired at him and then we lifted his MP-5 and from there went to our house. Then after some days we again left our house in Liaqutabad and arrived at the backside of Saddar Parking Plaza, where army's double-cabin was going in an alley near the Parking Plaza near which I took the motorcycle so Ishaq also fired 7-8 times at them and then we ran away from there and came back to our house in Liaqutabad. In 2015 Ishaq was provided recce of a lawyer that a lawyer is Ehl-e-Tashih. When we arrived at the Civic Centre, he had left, whom we chased and after passing some distance, we saw him and then we fired at him due to which he got injured and fell down. Then we carried out our next crime in the month of Ramazan in 2016. At first, we conducted recce of Amjad Sabri, and then we went with the motive to kill him. At first we carried out his recce that at what time he leaves house. On the day of occurrence, when he left his house so we chased him and when he arrived at the No.10 road which leads to towards Civic Centre so we were already present there as soon as his car arrived there I took the motorcycle near his car and then Ishaq fired upon him and then we also left from there. I am getting this statement recorded in my complete senses. I am not under any kind of pressure or coercion.(bold added)

Sd/-05.12.2016

Civil Family Judge and JM Court

No.X, Karachi (West)"

After a review of the relevant law on the legal validity of judicial confessions albeit retracted at trial the Hon'ble Supreme court in the case of Ch. Muhammad Yaqoob v. The State (1992 SCMR 1983) reached the following conclusion:

"The legal position, which has emerged from the above reports, seems to be that in order to judge the evidentiary value of retracted confession, the Court is to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the object to state the truth. If the Court is satisfied on the above aspect, the mere fact that there were some irregularities in recording of a confession, would not warrant disregarding of the same". (bold added)

It is settled law that a retracted judicial confession can be legally admissible and used against its maker in certain circumstances. In the later case of Muhammad Amin v. The State (PLD 2006 SC 219) it was held at P.224 Para 9 as under;

"9. There is no cavil to the proposition that conviction could have been awarded on the basis of retracted confession which proposition was examined in case of Mst. Joygun Bibi v. The State PLD 1960 (SC (Pak) 313 as under:-

"We are unable to support the proposition of law laid down by the learned Judges in this regard. The retraction of a confession is a circumstance which has no bearing whatsoever upon the question whether in the .first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw from a self-accusing statement in direct face of the consequences of the accusation, is explicable fully by the proximity of those consequences and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated. The learned Judges were perfectly right in first deciding these two questions, and the answers being in the affirmative, in declaring that the confession by itself was sufficient, taken with the other facts and circumstances to support Abdul Majid's conviction. The retraction of the confession was wholly immaterial once it was found that it was voluntary as well as true."

10. Similarly in the case of the State v. Minhun alias Gul Hassan PLD 1964 SC 813 this Court has observed as under:

"As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confession whether judicial or extra judicial, could legally be taken into consideration against the maker of those confessions himself and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is well-settled that as against the maker himself his confession, judicial or extra judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement." (bold added)

Thus, the court laid down a two pronged test as under (a) whether the retracted judicial confession appears to have been made voluntarily, without any inducement, duress or coercion and (b) was made with the object to state the truth. Notably it was also held that if both (a) and (b) were satisfied that even if there were some irregularities in recording of a confession it would not warrant disregarding of the same.

Now when we consider the judicial confession of the appellants and the evidence on record we find that they were made voluntarily with the object to state the truth as per the case of the prosecution as set out in the FIR and the evidence of the complainant and other PWs. We also find that nearly all the procedural safe guards were carried out by the magistrate e.g hand cuffs were taken off, reflection time was given, they were informed of the legal consequences of their confession and they were not handed back to the police and instead went straight to judicial remand after the confession and if there were any procedural defects these were only very minor in nature and would not effect the voluntariness or truthfulness of the confessions as was held in the case of Majed v. The State (2010 SCMR 55). The fact that the judicial confession was carried out on the last day of police remand is also irrelevant as was held in the case of Ghulam Nabi v. The State (2007/ SCMR 808). The fact that the judicial confession was made after 16 days of the appellants' arrest also does not impact on its voluntariness and truthfulness as was held in Ch. Muhammad Yaqoob's case (Supra).

As such we believe the retracted judicial confessions of both the appellants as they were made voluntarily with the object of telling the truth and their contents fit in with the prosecution case and there are no material defects in the manner in which they were recorded by PW 10 Saghir Hussain Shah who was the concerned judicial magistrate. His evidence also fully corroborates the content of the confessions and that all necessary procedural safe guards were adhered to. We however give such confessions limited weight since they are global in nature and seem to lack detail of the particular crime however we find that they do corroborate /support the ocular evidence of eye-witness PW 7 Shahid which we have already believed in respect of the incident and the correct identification of the appellants as two of the persons responsible for the murder of the deceased.

(d) That the medical evidence and medical reports as discussed above fully support the eye-witness/ prosecution evidence. It confirms that the deceased was hit at least 4 to 5 times by firearm bullets and in most cases in the upper part of his body.

(e) That the car which was recovered by the police was the car which was driven by the deceased and was marked with bullets, stained blood was collected from inside it and its windows were broken as evidenced by the evidence of the police official PW's, positive FSL and chemical reports.

(f) That when the accused were arrested by PW 5 Malik Ayub from a shop after the incident the appellants were found in possession of two unlicensed firearms one of which matched empties which were recovered and sealed at the scene of the crime. Importantly the empties were first sent for FSL prior to the recovery of the pistol from the appellants a day after the incident and were again sent for FSL once the pistols were recovered from the appellants on their arrest and on both occasions a positive FSL report was received which proves that neither the empties nor the pistol were foisted. According to PW 9 Shukat Ali 4 of the empties were recovered from outside the car.

(g) That the motor cycle used in the murder was recovered on the pointation of the appellants.

(h) Most of the relevant police entries have been exhibited concerning the shooting and murder which fully support the prosecution's case.

(i) That the police PW's had no enmity or ill will towards the appellants and had no reason to falsely implicate them in this case and in such circumstances it has been held that the evidence of the police PW's can be fully relied upon and as such we rely on the police evidence. In this respect reliance is placed on Mushtaq Ahmed v. The State (2020 SCMR 474).

(j) That all the PW's are consistent in their evidence and even if there are some contradictions in their evidence we consider these contradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the appellants. In this respect "reliance is placed on the cases of Zakir Khan v State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669). The evidence of the PWs provides a believable corroborated unbroken chain of events from the court clerk leaving in the morning with the deceased lawyer from his house in the deceased's car for court to the deceased driving the car home with the clerk in the back seat after leaving his legal office who was living with him to the motor cyclists who the clerk was able to identify firing on the deceased and his vehicle to the accused escaping on their motor cycle to the deceased being taken and being pronounced dead at hospital to the appellants then being arrested with unlicensed weapons and picked out at an identification parade with specific roles by the eve witness clerk to the judicial confessions of the appellants to the positive FSL report in respect of the pistol which was recovered from the appellants with the empties which were recovered at the scene with the pistol being used to fire at and murder the deceased to the identification of the motor cycle used in the murder on the pointation of the appellants.

(k) That the appellants were already under arrest in similar type cases (target killings) which indicates that they had a propensity to commit such like crimes and each had extensive CRO's.

(l) Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but we have also considered the defence case to see if it at all can cast doubt on or dent the prosecution case. The defence case is simply one of false implication by the police. The appellants did not give evidence on oath and did not produce any DW in support of their defence case or produce any other evidence which could dent the prosecution case. Thus, for the reasons mentioned above we disbelieve the defense case as an afterthought in the face of a reliable, trust worthy and confidence inspiring eye-witness and other corroborative /supportive evidence against the appellants which has not at all dented the prosecution case.

1. Thus, based on the above discussion especially in the face of reliable, trustworthy and confidence inspiring eyewitness evidence and other corroborative/supportive evidence mentioned above, we have no doubt that the proecuion has proved its case against the appellants beyond a reasonable doubt for the offences for which they have been convicted and hereby maintain their convictions and sentences except with regard to the ATA offences for which they are both acquitted for the reasons set out below.

2. We do not find that this case falls within the purview of the ATA as defined by a larger bench of the Supreme Court in the case of Ghulam Hussain v State (PLD 2020 SC 61) where in essence for their to be an act of terrorism there had to be an object, intent, purpose and design to create terror on account of such act. Whether people were terrorized as a by product of the act did not convert the act into one of terrorism nor the fact that it may have been of a particularly brutal nature. Based on the particular facts and circumstances of this case it appears that the offence was simply a murder by way of target killing which had no object, intent, purpose or design to create terror and as such the appellants are acquitted of all offences under the ATA.

2024 M L D 762

[Sindh]

Before Nazar Akbar and Zulfiqar Ahmad Khan, JJ

Anwar Faheem alias Anoo alias Zeeshan---Appellant.

Versus

The State---Respondent

Special Crime Anti-Terrorism Appeals Nos. 317 and 318 of 2019, decided on 23rd December, 2020.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Safe custody and safe transmission of crime empties for analysis not established---Accused were charged for committing murder of brother of complainant and his friend by firing Crime empties recovered from the place of incident were received by Ballistics Expert on 06.09.2011, whereas, FIR was registered on 25.07.2011---Sending the crime empties to the forensic division with considerable delay had not been explained properly, as such no sobriety could be attached to the positive report, with regard to the safe custody of the crime empties at police station and its safe transit---Circumstances established that the prosecution had utterly failed to prove its case against the accused persons---Appeal against conviction was allowed, in circumstances.

Muhammad Asif v. The State 2017 SCMR 486; Muhammad Pervaiz v. The State PLD 2019 SC 592 and Notice to Police Constable Khizar Hayat PLD 2019 SC 527 ref.

Kamaluddin alias Kamala v. The State 2018 SCMR 577 rel.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Withholding evidence of best witness---Effect---Accused were charged for committing murder of brother of complainant and his friend by firing---Prosecution case was that the Police Officer was informed by one Mr. "B" through cell phone at Police Station that two unknown persons on motorcycle fired upon a car, silver colour, at a college main gate,and as a result thereof two persons sustained bullet injuries and died---However, neither in the prosecution story the details/address and cell number of said Mr. "B" had been given nor said Mr. "B" had been cited or produced before the trial Court for recording of his evidence---Thus, the best evidence withheld by prosecution itself made the case highly doubtful with regard to the identity of the accused persons/culprits and such factum indicated that it was an unseen incident---Circumstances established that the prosecution had failed to prove its case against the accused persons---Appeal against conviction was allowed, in circumstances.

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

---Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Statement of eyewitness not credible---Accused were charged for committing murder of brother of complainant and his friend by firing---Record showed that statement of eyewitness Mr. "M" under S. 161, Cr. P.C. was allegedly recorded on 04.08.2011, after a lapse of more than 10/11 days of the incident, for which, no plausible explanation had been furnished by the prosecution---Likewise Investigating Officer also failed to establish his presence at the place of incident in the memo of place of incident and also in the other document i.e. inquest report under S. 174, Cr. P.C.---Present eye-witness was not the person who had taken the dead bodies to the hospital for further process---Most important thing was that no Huliya/description and features were mentioned in the statement of such eyewitness---According to testimony of said witness, he went to restaurant (place of incident) along with his friend Mr. "F" to have dinner but said Mr. "F" had not been produced by the prosecution for his evidence---Thus, the evidence of said ey-ewitness was not confidence inspiring and as such his evidence was not credible---Another crucial point was that the statement under section 164, Cr. P.C., of said eye-witness was recorded on 25.10.2011 after a lapse of three months and after the arrest of the accused persons which itself indicated that prosecution had no tangible evidence and the said eyewitness was introduced by police in order to dispose of the case in hand on flimsy ground---One of the eye-witneses, during the trial, was declared hostile by the prosecution---No doubt the hostile witness could be taken into consideration when other circumstances were supporting the case of prosecution---Surprising that the Trial Court had relied only on evidence of one eyewitness when the other circumstances and corroborative evidence had not come on the record, therefore, in absence of other strong circumstantial evidence, the evidence of said eyewitness could not be relied on---Circumstances established that the prosecution had failed to prove its case against the accused persons---Appeal against conviction was allowed, in circumstances.

Imran Ashraf and 7 others v. The State 2001 SCMR 424 rel.

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

---Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Qanun-e-Shahadat (10 of 1984), Arts. 38 & 39---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Admission of accused before the police---Not admissible in evidence---Accused were charged for committing murder of brother of complainant and his friend by firing---Prosecution case was that the accused was arrested on 06.10.2011 in another FIR, registered under S. 13-D of Pakistan Arms Ordinance, 1965 and other accused was arrested on 07.10.2011 in some other FIR, registered under Ss.365/302/34, P.P.C. and during investigation of such FIRs, they allegedly disclosed that they committed murder of deceased and his friend along with their other accomplices and then the police implicated them in the present case---Important to note that after the admission of the accused before the Police Officials, the concerned Police Officials did not produce them before the concerned/nearest Judicial Magistrate/Civil Judge for recording their statements under section 164, Cr. P.C., in respect of the offence in hand---Admitted position that admission of the accused before Police Official had no evidentiary value under Arts. 38 & 39 of the Qanun-e-Shahadat, 1984---Even otherwise, such admission was not supported from other independent sources of circumstantial evidence---Thus, it seemed that the case in hand was of no evidence against the accused---Circumstances established that the prosecution had failed to prove its case against the accused persons---Appeal against conviction was allowed, in circumstances.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 rel.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Qatl-i-amd, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Police Officials as witnesses---Accused were charged for committing murder of brother of complainant and his friend by firing---Record showed that departure entry of police not produced before the Trial Court---Non-production of such entry would be fatal to prosecution case---Crime weapon(s) had also not been sent for Forensic Science Laboratory---Thus, it would be unsafe to rely upon the evidence of Police Officials without independent corroboration which was lacking in the case---Hence, no sobriety could be attached to the prosecution case as well as the deposition of prosecution witnesses---Admittedly, arrival and departure entries had not been produced by the prosecution---Thus, no reliance could be placed upon the evidence of the prosecution witnesses without independent corroboration which was lacking in this case---Circumstances established that the prosecution had failed to prove its case against the accused persons---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

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

Muhammad Mansha v. The State 2018 SCMR 772 and Abdul Jabbar v. State 2019 SCMR 129 rel.

Muhammad Imran Meo for Petitioner.

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

Date of hearing: 23rd December, 2020.

Judgment

Zulfiqar Ahmad Khan, J.---Appellants Anwar Faheem alias Anoo alias Zeeshan son of Faheemullah and Khurrum Mustafa son of Muhammad Ajaib were tried by learned Judge, Anti-Terrorism Court-VI, Karachi in Special Case No. 163 of 2011 [Crime No. 544 of 2011, under section 302/34 P.P.C. read with Section 7 of ATA 1997] at P.S Gulshan-e-Iqbal, Karachi and in Special Case No. 167 of 2011 [Crime No. 463 of 2011, under section 13(d) of Arms Ordinance, 1965], registered at P.S. Quaidabad, Karachi. On conclusion of the trial, vide judgment dated 28.10.2019, the appellants were convicted and sentenced as under:-

1) Accused Anwar Faheem is convicted in bearing Crime No.544/2011, under section 302(b) P.P.C. and he is awarded death sentence as hanged till to his death with compensation of Rs.200,000/- to be paid to the legal heirs of the victim.

2) Accused Khurrum Mustafa is convicted in bearing Crime No.544/2011, under section P.P.C. and he is awarded death sentence as hanged till to his death with compensation of Rs.200,000/- to be paid to the legal heirs of the victim.

3) Accused Anwar Faheem is convicted in bearing Crime No.544/2011, under section 7(1)(a) ATA, 1997 and he is awarded death sentence, to be hanged till his death.

4) Accused Khurrum Mustafa is convicted in bearing Crime No.544/2011, under section 7(1)(a) ATA, 1997 and he is awarded death sentence, to be hanged till his death.

5) Accused Anwar Faheem is also convicted in bearing Crime No.463/2011 under section 13(d) Arms Ordinance, 1965 and he is sentenced to undergo for R.I. 07 Years with fine of Rs.10,000/- and in case of default in payment of the fine then he shall suffer a simple imprisonment of another six months.

Benefit of Section 382-B, Cr.P.C. was also extended to accused.

1. Brief facts as per the Crime Report No.544 of 2013 [Exh.18/J] are that on 25.07.2011 at about 2345 hours, informant Syed Anwar Shah reported the matter to police alleging that his brother Sabir Shah on 24.07.2011 with his friend Muhammad Shareef in his car bearing No.ARH-363, Make Mira, silver colour, proceeded to meet his friends. At about 1200 hours at midnight by telephone, the complainant received information that his brother and his friend had been killed near Gulshan Degree College, Block-07, Gulshan-e-Iqbal, at about 11:15 p.m. by some unknown persons, riding a motorcycle. The complainant instantly went to Jinnah Hospital and found dead bodies of his brother Sabir Shah and his friend Muhammad Sharif, who had sustained fire arm injuries at different parts of their bodies. Hence, the FIR was lodged against the unknown persons.

2. After usual investigation, challan was submitted against the above accused under the aforementioned sections and trial court framed charge against the accused at Exh.06, to which the accused pleaded not guilty and claimed to be tried.

3. At trial, prosecution examined as many as twenty witnesses in order to prove its case. Thereafter, prosecution side was closed.

4. Statements of accused Anwar Faheem and Khurrum Mustafa under Section 342 Cr. P.C. were recorded at Exhs.47 and 48, wherein the accused denied all the incriminating pieces of prosecution evidence brought against them on record and claimed false implication in these cases and stated that crime weapons have been foisted upon them, all the witnesses are untruthful, interested and inimical to them and declined to give statement on oath. In a question what else you have to say, they replied that they were innocent and had done no offence, prayed for justice.

5. Trial Court after hearing the learned counsel for the parties and assessment of the evidence, vide judgment dated 28.10.2019 convicted and sentenced the appellants as stated above. Hence these appeals.

6. Before dealing with the instant case and assessing the evidence before us it is relevant to mention that initially co-accused Noman Azeem, Rashid alias Chamber and Asif Qasmani were acquitted by extending them benefit of doubt under section 265-H(i) Cr. P.C.

7. Learned counsel for the appellants contended that the impugned judgment is illegal, unlawful, arbitrary and is unwarranted by law. He further contended that there is no strong evidence against the appellants/ accused and they cannot be convicted on the basis of prosecution evidence. He further argued that no such incident took place and police has managed a flimsy story in the said FIR. He further contended that learned trial court did not consider the discrepancies and contradictions in the statements of PWs while deciding the case against the present accused and the learned trial Court has failed to appreciate that no alleged weapon has been recovered from the possession of the appellants and the alleged recovery totally foisted upon them. He also contended that the learned trial court has erred in holding that the prosecution has proved the case against the appellants while there was contradictory evidence, which is not trustworthy due to material contradictions and conviction handed down to the appellants is illegal and the same is result of mis-reading of facts and evidence on the record. Learned counsel further contended that the appellants are innocent and have falsely been implicated in these fake and managed cases. He further contended that the learned trial court has miserably failed to appreciate the evidentiary value of evidence and also failed to prove the case beyond any shadow of doubt, so also, there is no FSL report till date available. Learned counsel for the appellants contended that the prosecution has failed to cite any private witness in this case. Lastly, learned counsel has prayed for acquittal of the appellant. In support of his contentions, learned counsel has relied upon the cases of Muhammad Asif v. The State [2017 SCMR 486], Muhammad Pervaiz v. The State [ PLD 2019 SC 592], Notice to Police Constable Khizar Hayat (PLD 2019 SC 527), and unreported judgment passed by this Court in Criminal Appeal No. 150 of 2016 [Khurrum Mustafa v. State].

8. Learned Additional Prosecutor General while supporting the impugned judgment contended that sufficient incriminating evidence is available on record connecting the appellants with the commission of crime and prosecution has examined 20 PWs and they have fully implicated the accused in the present crime. She further argued that police officials had no enmity to falsely implicate the present accused in this case and trial court has rightly convicted the accused. She prayed for dismissal of the present appeals.

9. We have carefully heard the learned Counsel for the parties and scanned the entire evidence available on record.

10. At the trial, prosecution examined PW-01, Javed Iqbal Malik, Civil Judge, [Exh.14], who has conducted identification parade in the case and produced the Memo as Exh. 14/A and CNIC of witness Masroor Hussain as Exh.14/B. He has not been cross examined though chance was given.

11. PW-2, SIP Shahnawaz Khan, [Exh.18] deposed that he was posted as SIP at PS Gulshan-e-Iqbal, Karachi, in the Investigation Branch. On the same day, at about 2320 hours, one Babar called through cell phone at PS Gulshan-e-Iqbal that two unknown persons on motorcycle fired upon the car bearing registration number ARK-363 Meera, silver coloured at Gulshan Degree College, main gate, and as a result thereof two persons sustained bullet injuries and died and dead bodies were lying there. He further stated that he inspected the dead body of Ghulam Sabir Shah son of Ghulam Shah in presence of ASI Asif and Zubair and prepared such Memo in their presence, which he produced as Exh.18/E. He has further stated that on 25.07.2011 at 2300 hours, he went to the house of Anwar Shah, the brother of the deceased for recording his statement under section 154 Cr. P.C. which he produced as Exh.18/1 and subsequently he registered the FIR No.544/2011 under section 302/34 P.P.C., which he produced as Exh.18/J. During his cross-examination he admitted that he reached within five minutes at the place of incident and Babar did not meet with him at the place of incident, he did not inquire from the people of the locality on arrival at the place of incident and he had not mentioned the source of light for preparation of the memo at the place of incident in memo of seizure, he had not mentioned the engine and chasis number of the Meera Car in Memo of Seizure, further admitted that he had not mentioned the facts of any damage to the Meera Car in the Memo of Seizure and he did not make entry while leaving the PS for house of complainant as to record his statement and complainant did not nominate any accused in FIR and I.O. did not take any photograph at the place of incident and no sketch of the place of incident was prepared by I.O. in his presence, no private witness was accompanying I.O. at the time of inspection of the place of incident and the place of incident was surrounded with residential houses and I.O. did not inquire from the chowkidar of the College, further admitted that there was no signature of the mushirs on the sealed parcels and he had not mentioned the numbers of the empties in memo of seizure and neither he had mentioned the date upon the sealed parcel nor particular place of sealing upon the parcel and he had not mentioned the registration number of the ambulance in memo.

12. PW-03 Shaikh Anwar Shah [Exh.20] deposed that on 24.07.2011 at about 2315 hours, he was present at his house, he received information that his younger brother Sabir Shah along with his friend Shareef son of Zareef had been murdered by some unknown persons behind Gulshan Degree College. The culprits were on two motorbikes. Upon which he along with his other brother rushed towards JPMC where he had seen the dead body of his brother and his friend. He had also seen the fire arm injuries appearing on the body of his brother viz. at the head, neck and stomach. Police recorded his statement under section 154 Cr. P.C and on the next day I.O had recorded his statement under section 161 Cr. P.C.

13. PW-04 Masroor Hussain [Exh.22] deposed that on 24.7.2011 at about 11:00, he along with his friend Faiz Muhammad went to Block-7 at Al-Jannat Restaurant, Gulshan-e-Iqbal to have dinner by car. When they reached and parked the car, they got out and saw a friend of him namely Sabir Shah and his companion were being manhandled and dragged by some unknown persons who then forcibly put them in a silver coloured Mira Car and drove away. They were shocked and returned to their home. He also stated that on the next morning, he read in daily Janbaz and also saw their photos that the two persons who were murdered at night were actually Sabir Shah and his companion. He then collected address of Sabir Shah from his show room and then went over but found that his family had gone to their native village for funeral. He produced true copy of his statement recorded under section 164 Cr. P.C. as Exh.22/A before the Magistrate. During his cross-examination he admitted that the place of incident was a populated area and a busy commercial one, he did not ask contact number of the family members of the deceased from anyone in the neighborhood when they had gone for funeral and he had not mentioned the specific distance from where he witnessed the incident and in his statement under section 161 Cr. P.C. neither the license plate number of his car nor of the silver car has been mentioned and in his statement under section 161 Cr. P.C. it was not mentioned that whether the accused persons were armed with weapon so also their description has also not been mentioned and further admitted that ammunition recovered by the police was shown to him at PS and they disclosed that the weapons viz. KK was recovered from accused Khurram Mustafa and TT Pistol from accused Anwar Faheem.

14. PW-05 Inspector Tariq Ali [Exh.23] deposed that on 04.08.2011, he was posted as SIP at PS Gulshan-e-Iqbal, Karachi, in Investigation Branch. On the same day, he was entrusted with the investigation of Crime No. 544/2011 of PS Gulshan-e-Iqbal through letter dated 04.08.2011, which he produced the same as Exh.23/A. He has also produced site sketch as Exh.23/B, bears his signature. On return to the PS, he recorded statement under section 161 Cr. P.C. of the complainant and eye witness Mansoor Hussain. On 06.09.2011 he sent crime empties and recovered weapon to the FSL through letter which he produced as Ex.23/E. He also produced FSL report dated 08.09.2011 as Exh.23/F. During his cross-examination he admitted that he had not produced any entry showing that he had left the PS for visiting the place of incident where he verified the sketch so prepared by PI Sultan Nawaz and Exh.23/B did not bear round stamp of PS Gulshan-e-Iqbal and on information he had proceeded to Crime Branch Landhi-2 and he did not ask any private person to accompany him and be a mashir, further admitted that he did not associate any official of the Crime Branch Landhi-02, to be mushir of formal arrest and in Exh.23/J, accused Anwar Faheem has not given any description of his accomplices, and he had exhibited carbon copy of the entries in Exh.23/I and in Exh.23/I, there was no signature of any official on the round seal of Crime Branch, Landhi02 and he had proceeded to PS Sachal, he did not ask any private person to accompany him and be mushir and he did not associate any official of PS Sachal, to be mushir of formal arrest and after making entry of serial No.105 in the daily diary, entries bearing Nos. 106,107 and so on, were also incorporated. Exh.23/K, was a carbon copy which only shows the entries related to him, whereas the daily roznamcha diary has all the entries written fairly, in serial wise sequence and in Exh.23/K, there was no signature of any official on the round seal of PS Sachal, and in Exh.23/M, the entry number was not mentioned, and the mode of conveyance so used was not mentioned in Exh.23/M, and no official of PS Sachal has been associated as mushir in Exh.23/M and in Exh.23/N, the entry number was not mentioned.

15. PW-06 SIP Muhammad Aslam [Exh.27] deposed that on 07.10.2011 he was posted as SIP at PS Gulshan-e-Iqbal in Investigation Branch. On the same day, he received the investigation of FIR No.544/2011 along with police papers. Accused Khurram Mustafa and Anwar Faheem were locked up at the PS. On 13.10.2011, he interrogated both the accused. During interrogation, accused Khurram Mustafa disclosed that the weapon he used in commission of the offence had been recovered by PS Sachal. Whereas accused Anwar Faheem disclosed that the weapon he used in the commission of the offence had been recovered by the crime branch Quaid Abad, Karachi. He made interrogation [entry No.38], which he produced as Exh.27/A. During his cross-examination he admitted that Exh. 27/A did not mention the number of police mobile nor the personnel who went along. They had reached PS Sachal on 13.10.2011 at 1920 hours and as per Exh.23/M, no witness of PS Sachal has been associated and no personnel of Crime Branch Landhi was associated as mushir.

16. PW-07 HC Muhammad Rafiq [Exh.28] deposed that on 24.07.2011, he was posted as HC at PS Gulshan-e-Iqbal, Investigation Branch. On the same day, duty officer received information that an abandoned car with a couple of dead bodies in it was available at the back side of Gulshan College, Block-7, Gulshan-e-Iqbal. They reached the spot at 2300/2315 hours, under command of SIP Shahnawaz with personnel namely PC Zubair on motorcycles. They found a grey coloured Mira Car bearing license Plate No.ARK-363, the driver side window pane of which was shattered and 05 empties of KK and 02 empties of 30 bore were found near the car. The empties were collected and sealed by SIP Shahnawaz who prepared its mushirnama in his presence and PC Zubair. During his cross-examination he admitted that Ex.18/B did not tell the source of lights available at the place of incident and shattering of car window was not mentioned in Ex.18/B and neither engine nor chasis number were mentioned in Exh.18/B and Exh.18/B did not tell that how far the empties lay scattered away from the car, and serial numbers of empties were also not mentioned in Exh.18/B, and article "A" did not mention the date of its sealing, further admitted that he had not exhibited any document showing impounding of the car in the PS.

17. PW-08 PC Faqir Muhammad [Exh.31] deposed that on 06.10.2011, he was posted at PS Gulshan-e-Iqbal as PC. At about 1900 hours, he in subordination of SIP Tariq along with HC Tufail Ahmed left PS for crime branch Landhi No.2. When they reached, SIP Tariq took out the custody from the lock up of the arrested accused namely, Anwar Faheem and he was interrogated in instant case. During which, he disclosed the names of his accomplices as Khurram, Asif, Mani, Rashid and Furqan. Further disclosed that he along with them, ascorted the deceased persons into the car from Al-Jannat Restaurant and took them to Block-07, Degree College and killed them by firing because of their Pathan Community. He further stated that SIP Tariq formally arrested the above named accused, prepared mushirnama in his presence and HC Tufail Ahmed. He stated that his statement under section 161 Cr.P.C. was recorded by SIP Tariq. During his cross-examination he admitted that no private person has been associated as mushir and Exh.23/J did not describe the accomplices and no mushir had been attributed from crime branch.

18. PW-09 PC Anjum Khursheed [Exh.32] reiterated the prosecution story in his evidence. During his cross-examination he admitted that when they proceeded to apprehend the accused, neither, they had any photograph of the accused nor had he seen him before and no private person has been attributed.

19. PW-10 Sr. MLO Dr. Dileep Khatri [Exh.33], who produced postmortem No.577/11 as Exh.33/B and 33/C and stated that it bear the signature of Dr. Abdul Razzak. He also produced the postmortem No.578/11 and medical certificate of cause of death of deceased Muhammad Sharif and produced the same as Exh.33/D and Exh.33/C. He had not been cross examined though chance given.

20. PW-11 SIP Muhammad Asif also repeated the whole prosecution story and then he had not been cross-examined.

21. PW-12 HC Dosoza, [Exh.35] deposed that on 07.10.2011, he was posted as PC at PS Gulshan-e-Iqbal. On the same day, he in subordination of ASI Tariq Ali along with HC Huzoor Bux and driver went to PS Sachal in police vehicle. At PS Sachal, ASIP Tariq Ali took out of the custody of the arrested accused Khurram and took him to interrogation room for investigation. During interrogation he disclosed that he along with his accomplices Anwar, Furqan, Rashid and other companions committed murder at Block-7, Gulshan-e-Iqbal, near Degree College. On such disclosure ASIP Tariq Ali formally arrested the accused in instant case and prepared the mushirnama of arrest and took his signature and Huzoor Bux and his 161 Cr. P.C. statement was also recorded. During his cross-examination he admitted that he did not remember the exact timing of departure from PS Gulshan-e-Iqbal. He does not remember the exact timing of arrival at PS Sachal and accused did not describe any of his accomplices as well as disclosed their parentage during investigation, and ASI Tariq Ali did not associate any private witness nor any police official from PS Sachal to act as mushir.

22. PW-13 Retd. Inspector Hameedullah Khan, [Exh.36] deposed that on 03.06.2012, he was posted as SIO at PS Darakhshan. There was an accused namely Rashid alias Chamber who was already arrested in Crime Nos.212/12 and 214/12 of PS Darakhshan, whom he interrogated on the same day. During interrogation, he disclosed about his involvement in the instant crime. Afterwards, he made call at PS Gulshan-e-Iqbal who informed him that the instant case was transferred in CID Garden. On 04.06.2012, PI Malik Adil along with his subordinates came to PS Darakhshan. He took out the custody of the accused and interrogated him in interrogation room in his presence. During interrogation, he admitted to his guilt in the instant crime. PI Malik Adil formally arrested the accused and prepared mushirnama of formal arrest in his presence as well as in presence of PC Maqbool. He produced such mushirnama as Exh.36/A. Thereafter, he locked up the accused and recorded his statement under section 161 Cr. P.C. During his cross-examination he admitted that it was not mentioned in his statement under section 161 Cr. P.C that in whose presence, when and where he interrogated accused Rashid alias Chamber, and he had not produced any entry regarding the interrogation of the accused, and he had not disclosed the time of making call at PS Gulshan-e-Iqbal in his statement under section 161 Cr. P.C.

23. PW-14 Mehboob Illahi, [Exh.37] was declared hostile by the learned APG and he was cross-examined by the learned APG.

24. PW-15 ASI Arshad Iqbal [Exh.39] who has deposed in his examination that on 05.10.2011, he was posted as ASI as Crime Branch-II, Karachi. Under the subordination of PI Azam Masood, HC Syed, HC Ayub and PC Nawaz were busy in the area patrolling for prevention of crime in official police mobile. When PI Azam Masood received spy information on which they stopped two persons riding on one motorcycle bearing registration number KBT-3320 make Pak Hero at Star Ground Main Gate, Mollah Madad Graveyard. On enquiry, the suspect person riding the motorcycle, disclosed his name as Muhammad Ali and on his search, one TT Pistol 30 bore without number in back pocket of his pant was recovered along with 04 live rounds in its magazine. While the pillion rider disclosed his name as Anwar Faheem, on his search, one TT pistol 30 bore without number along with 03 live rounds in its magazine in back packet of his pant was recovered. PI Azam Masood asked for the license of the recovered pistols, which they failed to produce. Thereafter, PI Azam Masood sealed both the pistols, separately, and prepared memo of arrest, and recovery on which he obtained his signature and that of HC Saeed Khan which he produced as Exh.39/A. Investigation of instant FIR bearing No.463/2011 under section 13(d) was assigned to him by PI Azam Masood. He interrogated the accused, during which accused Anwar Faheem disclosed his involvement in killing of one person in P.S Gulshan-e-Iqbal. On such disclosure, he informed PS Gulshan-e-Iqbal. I.O of PS Gulshan-e-Iqbal namely SIP Tariq came and interrogated the accused in the FIR 544/2011 and arrested him. He produced the arrival entry and handing over of the accused as Exh.39/D. On 13.13.2011, new I.O/PI Aslam Baloch of PS Gulshan-e-Iqbal in the instant FIR collected the recovered pistol from the accused. He handed over the pistol to PI Aslam Baloch, vide memo of handing over the pistol. He produced the memo of handing over the pistol to PI Aslam Baloch as Exh.39/E. During his cross-examination he admitted that the mode of communication of the spy information, the place and time of receiving it, have not been explained in his examination-in-chief, FIR, Memo of arrest and his statement under section 161 Cr. P.C. and during patrolling the police lights remain switched on and Exh.39/A did not disclose that which of the accused rode the motorcycle and which one sat pillion and Exh.39/A did not bear description of the pistol nor its sketch and Exh.39/A also did not specify the number of rounds found loaded in the pistol and no private person could be associated as no one was found and it was not mentioned in Exh.39/A that under what source of light it was prepared, further admitted that he had not exhibited any entry showing the custody of the pistol and Exh.39/A, did not bear the bullets' number written at their base.

25. PW-16 ADJ Zahida Parveen [Exh.40], who recorded statements of witnesses under section 164 Cr. P.C. on the application moved by IO/PI Malik Muhammad Adil. During her cross-examination she admitted that accused Anwar Faheem was not brought before her for IDP and It was not in her knowledge whether any IDP was held prior to recording statements under section 164 Cr. P.C. of the witnesses and It was a fact that she did not note down if the accused and the witnesses had come together before her or separately and during confessional statement, accused Noman did not name any co-accused and Exh.40/I, speaks that accused Noman was made hostage in his company car and taken by the other persons to the place of incident and every answer to the questions does not bear signature / thumb impression of the accused, further admitted that the certificate did not mention that the accused was read over his statement in his native language.

26. PW-17 PI Meer Mehdi Raza, [Exh.41] reiterated the prosecution story and he has not been cross-examined though chance was given.

27. PW-18 DSP Malik Muhammad Adil [Exh.42] deposed that through letter dated 17.10.2011, he received investigation, case property and the arrested accused from the previous I.O. of the instant case, which he produced as Exh.42/A. During his investigation and interrogation from such accused persons, he realized that more accused persons were involved and required to be arrested for the sake of further investigation. Resultantly, by virtue of investigation and interrogation, he received spy information that accused Noman Azeem was involved in the instant case and as such he would disclose more information and so also the whereabouts of Suzuki Mehran Car used in commission of the offence. Therefore, on 25.10.2011, he along with his police party reached at Al-Jannat Restaurant, Muskan Chowrangi, Gulshan-e-Iqbal, where his spy informer pointed him out upon which he was tactfully arrested. On enquiry, he disclosed that his name as Noman Azeem, his Memo of arrest was prepared on the spot in presence of mashirs namely PC Anjum Khursheed and PC Maqbool Ahmed. He endorsed his signature on Exh.32/A. On 26.10.2011, statement under section 164 Cr. P.C. of accused Noman Azeem was recorded before learned J.M. The previous I.O. had informed him that two witnesses namely Masroor and Faiz were important witnesses as they would depose crucial evidence and as such their statements under section 164 Cr. P.C. were necessary to be recorded. He had got statement under section 164 Cr. P.C. of Masroor and Mehboob Elahi upon proper application. He stated that he arrested accused Rashid alias Chamber who was under custody with PS Darakhshan in presence of mashirs namely PI Hameed Niazi and PC Maqbool Ahmed through Memo Exh. 36/A. On 13.7.2012, one Asif got pre-arrest bail and joined him for investigation, who was placed in Column No. II of a separate challan apart from the challan submitted for the remaining accused persons by him. During his cross-examination he admitted that when he received the investigation there were no sketches of absconding accused persons, and in first challan no accused was named and it was a fact that first challan was reported as A-Class and neither in challan nor in his examination-in-chief, it was mentioned that how he received the spy information, he did not remember the time of departure from PS nor that of arrival at the place where the accused was arrested, further admitted that in his examination- in-chief the time of arrest was not mentioned and no private person had been associated as a mashir of arrest, and place of arrest was a populated area, and even from there no private person was made a mashir. It was a fact that he did not serve notice under section 160 Cr. P.C. to any of the refusing public and no ID parade was held for the accused persons namely Khurram, Rashid, Anwar and Noman, and no statement under section 164 Cr. P.C. of accused was recorded by him, and witness Masroor did not identify accused Asif in his statement under section 164 Cr. P.C. and the witness namely Faiz did not implicate the accused Asif in his statement under section 161 Cr. P.C.

28. PW-19 SIP Zakirullah and PW-20 PI Syed Sadaqat Ali have also been examined by the prosecution and the said witnesses were not cross-examined, though opportunity was given.

29. Record reflects that earlier despite hectic efforts, SIP Tariq Ali could not find out the culprits of FIR No.544 of 2011, which was disposed of in A-Class on 10.08.2011 and on 06.10.2011, permission was granted to re-investigate the matter by the trial Court (Exh.23/G). Crime empties recovered from the place of incident were received by Ballistics Expert on 06.09.2011, whereas, FIR was registered on 25.07.2011. Sending the crime empties to the forensic division with the considerable delay has also not been explained properly, as such no sobriety can be attached to the positive report, with regard to the safe custody of the crime empties at police station and its safe transit, the Honorable apex court in the case of Kamaluddin alias Kamala v. The State (2018 SCMR 577) has held as under:

"As regards the alleged recovery of Kalashnikov from the appellant's custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice to it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the investigating officer, had divulged before the trial court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission"

1. It is the case of the prosecution that SIP Shahnawaz Khan (PW-02) was informed by one Babar through cell phone at PS Gulshan-e-Iqbal that two unknown persons on motorcycle fired upon the car bearing registration number ARK-363 Meera, silver coloured at Gulshan Degree College, main gate, and as a result thereof two persons sustained bullet injuries and died but neither in the prosecution story, the details/address and cell number of said Babar have been given nor said Babar has been cited or produced before the trial Court for recording of his evidence. Therefore, the best evidence withheld by prosecution itself makes the highly doubtful with regard to the identity of the accused persons/ culprits and factum indicates that the evidence is an unseen incident.

2. It can be seen that statement of eyewitness Masroor Hussain (PW-04) under section 161 Cr. P.C. was allegedly recorded on 04.08.2011, whereas, incident took place on 24.07.2011, after the lapse of more than 10/11 days, for which, no plausible explanation has been furnished by the prosecution, likewise Investigating Officer also failed to establish his presence at the place of incident in a memo of place of incident and so also other document i.e. inquest report under section 174 Cr. P.C. (Exhs. 18/E to 18/H) and the present PW was not the person who had taken the dead bodies to the hospital for further process. The most important thing is that there is no Huliya/description and features are mentioned in the statement of this PW, and according to his testimony, he went to restaurant (place of incident) along with his friend Faiz Muhammad to have dinner but the said Faiz Muhammad has not been produced by the prosecution for his evidence, therefore, the evidence of this PW is not inspiring confidence and as such his evidence is not credible. Another crucial point is that the statement under section 164 Cr. P.C. of said eyewitness Masroor Hussain (PW-04) was recorded on 25.10.2011 after a lapse of three months and after the arrest of the accused persons which itself indicates that prosecution has no tangible evidence and the present PW was introduced by police in order to dispose of the case in hand on flimsy ground. In the case of IMRAN ASHRAF and 7 others v. THE STATE (2001 SCMR 424), the Hon' ble Supreme Court of Pakistan has held as follows:-

"We are conscious of the fact that as far as site plan is concerned it has no evidentiary value but its importance can also not be denied to determine the location of the incident as well as the position of the witnesses particularly in those matters where presence or otherwise of the witnesses has been challenged. Reference may be made to 1997 SCMR 89. On the question of non-preparation of a site plan at the pointation of a witness this Court has held in the case of Gul Mir v. The State (PLD 1980 SC 185) that if it was not prepared on the pointation of a witness it will loose its evidentiary value."

It has further been held in para. 30 of the afore-cited judgment that "This Court has already held in 1993 SCMR 550 and 1995 SCMR 127 that if no plausible explanation is offered by prosecution to record the statement of eyewitness immediately after the registration of the case then the evidence of such witness becomes incredible."

1. It is further case of the prosecution that accused Anwar Faheem was arrested on 06.10.2011 in FIR No.463/2011, registered at P.S. Quaidabad, under section 13-D of Arms Ordinance, 1965 and accused Khurrum Mustafa was arrested on 07.10.2011 in FIR No. 580/2011, registered at P.S. Sachal, under sections 365/302/34 P.P.C. and during investigation, they allegedly disclosed that they committed murder of Sabir Shah and Muhammad Sharif along with their other accomplices and then police implicated them in the present case. It is very important to note here that after the admission of the accused before the police officials, the concerned police officials did not produce them before the concerned/ nearest Judicial Magistrate/Civil Judge for recording their statements under section 164 Cr. P.C. in respect of the offence in hand. It is also an admitted position that admission of the accused before police official has got no evidentiary value under Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984. Even otherwise, such admission was also not supported from the other independent source of circumstantial evidence. It seems that the case in hand is of no evidence against the accused. In the case of SAJID MUMTAZ and others v BASHARAT and others reported as 2006 SCMR 231, wherein it was observed as follows:-

"22. As observed by the Federal Court, we could reiterate especially referring to this part of the country, that extra-judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions. Such confessions by now, have become the signs of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions like why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship of the witness with the maker of confession and what, above all is the position or authority held by the witness."

1. It is also very important to note here that the so-called eye-witness PW-14 Mehboob Illahi, during the trial, was declared hostile by the APG, no doubt the hostile witness can be taken into consideration when the other circumstances are supporting the case of prosecution. It is surprising that the learned trial Court has relied only on the evidence of one PW when the other circumstances and corroborative evidence has come on the record, therefore, in absence of other strong circumstantial evidence, the evidence of PW Masroor Hussain cannot be relied on as there is delay in his 161 Cr. P.C. statement and, so also, after the arrest of accused persons, his 164 Cr. P.C. statement was also recorded on 25.10.2011 before the Judicial Magistrate, in which, he stated that the present accused were in possession of Kilashinkov and TT Pistol but there is no specific allegation of firing leveled by him in his statement. It is not possible for an eye-witness to remain silent till 04.08.2011, more particularly, when one of the deceased persons was his close friend. Therefore, the evidence of this PW is highly doubtful and cannot be reliable. In view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner. Accordingly, the prosecution has failed to bring home guilt to the accused as the evidence furnished at the trial is full of factual, legal defects and is bereft of legal worth/judicial efficacy. Therefore, no reliance can be placed on the same, in all fairness.

2. Even for the satisfaction of the Court departure entry of police not produced before the trial Court. Non-production of such entry would be fatal to prosecution case. Crime weapon(s) have also not been sent for FSL. It is therefore held that it would be unsafe to rely upon the evidence of police officials without independent corroboration which is lacking in this case. Hence, no sobriety can be attached to the prosecution case as well as the deposition of prosecution witnesses.

3. Admittedly, arrival and departure entries have not been produced by the prosecution. We are unable to rely upon the evidence of the prosecution witnesses without independent corroboration which is lacking in this case. Non-production of the arrival and departure entries of police station also cut the roots of the prosecution case.

4. In view of the above stated reasons, we have no hesitation to hold that there are several circumstances/infirmities in the prosecution case as highlighted above, which have created reasonable doubt about the guilt of accused. The concept of benefit of doubt to an accused person is deep-rooted in our Country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. In the case of Muhammad Mansha v. The State (2018 SCMR 772), the Hon'ble Supreme Court has observed as follows:-

2024 M L D 813

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Zahir Shah and others----Appellants

Versus

The State----Respondent

Criminal Appeal No.483 of 2021, decided on 28th October, 2022.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Prosecution case was that 16 packets of charas weighing 20 kilograms and 500 grams were recovered from the bag lying in the lap of one accused, 11 packets of charas weighing 14 kilograms and 100 grams were recovered from the bag lying in the lap of other accused, whereas 10 packets of charas weighing 12 kilograms and 500 grams were recovered from the bag of another accused---As per the memo of arrest and the recovery total 04 mobile phones were recovered from all the three accused persons---Complainant deposed that 05 mobile phones were recovered from the accused persons---Recovery witness deposed about 04 mobile phones, however Investigating Officer stated that he received 03 mobile phones which were recovered from the accused persons---Complainant stated that he himself kept the case property in koth of Police Station, however, recovery witness stated that one ASI handed over the case property in the Police Station and the same was kept in the room of Duty Officer---Complainant stated that he himself took away the accused persons inside the Police Station and locked them up and kept the case property in koth, however, recovery witness stated that all Police Officials kept the accused in the police lockup and he took one bag from police mobile and kept the same in the room of the Duty Officer---Prosecution case was that the contraband charas was sealed in three bags separately---Recovery witness had not stated a single word that as to whether the other two bags were brought at the Police Station or not---Said contradictions indicated that the complainant and mashir were not the true eye-witnesses of the incident and no such incident of the arrest of the accused and recovery of charas from the possession of accused persons had occurred as alleged by the prosecution---Thus, the prosecution failed to prove its case against the accused persons beyond a shadow of reasonable doubt and the recovery had not been satisfactorily proved---Appeal against conviction was allowed, in circumstances.

Subhanullah v. The State 2022 SCMR 1052; Muhammad Shoaib and another v. The State 2022 SCMR 1006; Zafar Khan and another v. The State 2022 SCMR 864; Abdul Ghafoor v. The State and another 2022 SCMR 819; Zubair Khan v. The State 2021 SCMR 492; Sakina Ramzan v. The State 2021 SCMR 451; Gulzar v. The State 2021 SCMR 380; Qaiser Khan v. The State 2021 SCMR 363; Akhter Meen v. The State PLD 2022 Sindh 84; Ahsan Marfani v. The State 2022 YLR Note 5; Tarique alias Kaloo v. The State 2020 MLD 1883; Muhummad Khurram v. The State 2022 P Cr.LJ 929; Syed Mehroz Mehdi Zaidi v. The State 2020 PCr.LJ 1609 and Ghulam Shabir alias Papi v. The State 2020 MLD 1417 ref.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody and transmission of the samples for analysis not proved---Prosecution case was that 16 packets of charas weighing 20 kilograms and 500 grams were recovered from the bag lying in the lap of one accused, 11 packets of charas weighing 14 kilograms and 100 grams were recovered from the bag lying in the lap of other accused, whereas 10 packets of charas weighing 12 kilograms and 500 grams were recovered from the bag of another accused---In the case in hand, the case property was sent to the Chemical Analyzer through a letter dated 22-09-2020 with memorandum No. Nil from SHO Police Station through SIP which showed that the property was sent by the SHO Police Station and he was not examined to prove that as to whether he sent the property to the chemical laboratory---As per the evidence of complainant, he deposited the recovered charas in the Koth at the Police Station and as per the evidence of mashir, the recovered charas was deposited in the room of the Duty Officer but the prosecution failed to examine any of them (Incharge of the Koth and the Duty Officer) to prove the safe custody of charas---Prosecution also failed to produce the entry under which the charas was kept at the Police Station and the same had been admitted by the prosecution witness---Investigation Officer stated that he sent the case property for chemical examination and he did not state that he brought the property to the office of the Chemical Examiner---Thus, 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 created serious doubt in the case---Appeal against conviction was allowed, in circumstances.

Mst. Razia Sultana v. The State and another 2019 SCMR 1300; 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.

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

----S.9(c)---Criminal Procedure Code (V of 1898), S. 342---Possession of narcotics---Appreciation of evidence---Material not put to the accused while recording his statement---Prosecution case was that 16 packets of charas weighing 20 kilograms and 500 grams were recovered from the bag lying in the lap of one accused, 11 packets of charas weighing 14 kilograms and 100 grams were recovered from the bag lying in the lap of other accused, whereas 10 packets of charas weighing 12 kilograms and 500 grams were recovered from the bag of another accused---It was alleged by the prosecution that the recovery was effected from a Rickshaw in which all three accused persons were travelling---During the trial the said Rickshaw was not produced before the court and also the Investigation Officer had not conducted an investigation in respect of its owner---Moreover, it was not found that the other articles allegedly recovered from the possession of the accused persons were available in the court at the time of recording evidence which included cash amount and mobile phones---Further, the recovery of the charas from the Rickshaw was not put to the accused persons in their statement under S.342, Cr.P.C, nor it was shown to them that this was the same Rickshaw from which recovery was effected and it was only put to them that the charas was recovered from their possession which was not the case of the prosecution---Such legal infirmities/lacunas created serious doubt in the prosecution case---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Benefit of doubt---Principle---For extending the benefit of the doubt, it is not necessary that there should be multiple circumstances creating doubt---If a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State as 1995 SCMR 1345 rel.

Syed Abad Hussain Shah and Syed Imdad Hussain Shah for Appellant No. 1.

Malang Dashti for Appellants Nos. 2 and 3.

Ali Haider Saleem, Addl. P.G. for the State.

Date of hearing: 25th October, 2022.

Judgment

ZULFIQAR ALI SANGI, J.---Appellants were tried by learned VIII, Additional Sessions Judge/MCTC Karachi West in Sessions Case No.710/2020 bearing Crime No.452/2020 under section 6,9(c) CNS Act, 1997 of P.S. SITE, Karachi and were was convicted under section 9(c) of CNS Act and sentenced to suffer life imprisonment with fine of Rs.100,000/- (One Lac), in default to suffer imprisonment for six months more with benefit under section 382-B, Cr.P.C vide judgment dated 04.08.2021. By means of this appeal the appellants have impugned their conviction and sentence.

1. The brief facts of the case as per FIR are that on 21.09.2020 complainant ASI Muhammad Aziz of PS SITE-A left PS along with PC Shafiq, PC Naseeb and DPC Kazim for patrolling in police mobile. During patrolling from-different places when they reached at Post Office chowrangi Estate Avenue SITE Karachi at 0400 hours he saw that one rikshaw was coming from Siemens chowrangi in suspicious condition. He tactfully got stopped the rikshaw. On inquiry the driver disclosed his name as Muhammad Rahim son of Nasrullah. He also saw that two persons were sitting on the back seat of rikshaw. On inquiry one person disclosed his name as Zahir Shah son of Abdul Salam and second person disclosed his name as Ajmal Khan Kakar son of Faizullah. Due to non-availability of private persons he made personal search of persons who were sitting in rikshaw number D-1306548 in presence of police mushirs namely PC Shafiq and PC Naseeb and recovered one plastic bag lying in lap of accused Zahir Shah on which words "Urea 46" was written and on checking the same he recovered 16 packets of chars weighing 20 kilo 500 grams. On his further personal search he recovered Rs.950/- and one mobile phone from his possession. On personal search of accused Ajmal he recovered one plastic bag lying in his lap and on checking the same he recovered 11 packets of chars weighing 14 kilo 100 grams. On his further personal search he also recovered Rs.1000/- and two mobile phones from his possession. On personal search of accused Muhammad Rahim son of Nasrullah he recovered one plastic bag on which "Darwesh Abbas Floor Mill" was written lying near the driving seat and on opening the same he recovered 10 packets of chars weighing 12 kilo 500 grams. On his further personal search he also recovered Rs. 1200/- and two mobile phones from his possession. Then he sealed the case property and prepared the memo of arrest and recovery on the spot. He brought the accused and case property at PS and lodged the FIR against them.

2. After the usual investigation the challan was submitted before the court having jurisdiction and after completing the codal formalities the charge against the appellants was framed to which they pleaded not guilty and claimed trial.

3. At the trial, the prosecution examined three witnesses to prove the case against the appellants which are P.W-1 complainant ASI Muhammad Aziz Khan at Ex.3, P.W.2 PC Muhammad Shafiq, mashir of arrest and recovery at Ex.4 and P.W.3 SIP/I.O Aamir Ghayas at Ex.6, who produced various documents i.e. FIR, mashirnama of arrest and recovery, report of chemical examiner etc. and then prosecution closed its side.

4. The appellant's statements under section 342, Cr.P.C were recorded wherein they denied prosecution allegations and pleaded their innocence. They, however, neither examined themselves on oath nor led any evidence in their defence. After the trial, the learned trial Court after hearing the parties convicted and sentenced the appellants through impugned judgment as stated above. Hence the appellants have filed appeals against their convictions and sentences.

5. Learned counsel for the appellants mainly argued that the appellants are innocent and have been falsely implicated in this case; that the alleged recovery of contraband charas was effected from Rickshaw and the said Rickshaw was not produced before the trial court; that the incharge malkhana of the police station with whom the contraband material was kept for safe custody was not examined; that no entry of depositing of charas in malkhana or sending it to the Chemical examiner was produced before the trial court; that prosecution also did not produce departure and arrival entries of the police party which creates very serious doubt in the prosecution story; that safe custody of alleged charas was not proved before the trial court; that there are major contradictions in the evidence of P.Ws; that prosecution had failed to prove the charge against the appellants beyond a shadow of reasonable doubt, hence they prayed for setting aside the impugned judgment and acquittal of the appellants. Learned counsel relied upon the cases of Subhanullah v. The State (2022 SCMR 1052), Muhammad Shoaib and another v. The State (2022 SCMR 1006), Zafar Khan and another v. The State (2022 SCMR 864), Abdul Ghafoor v. The State and another (2022 SCMR 8191), Zubair Khan v. The State (2021 SCMR 492), Sakina Ramzan v. The State (2021 SCMR 451), Gulzar v. The State (2021 SCMR 380), Qaiser Khan v. The State (2021 SCMR 363), Akhter Meen v. The State (PLD 2022 Sindh 84), Ahsan Marfani v. The State (2022 YLR Note 5), Tarique alias Kaloo v. The State (2020 MLD 1883), Muhummad Khurram v. The State (2022 P Cr.L J 929) and unreported judgments passed by this court in Cr. Appeal No.684/2021, Cr. Appeal No.D170/ 2010, Cr. Appeal No.D-87 of 2020, Cr. Appeal No.551/2021, Cr. Appeal No.193/2020, Cr. Appeal No.219/2020.

6. On the other hand, learned Addl. P.G has contended that the prosecution has successfully proved its case by examining the PWs who have no enmity with the appellants; that the appellants were caught red handed on the spot when a huge quantity of narcotics was recovered from them under mashirnama of arrest and recovery that all the P.Ws have supported the prosecution case, therefore, conviction and sentence awarded by the trial court requires no interference by this court. He has relied upon the case of Syed Mehroz Mehdi Zaidi v. The State (2020 PCr. LJ 1609) and Ghulam Shabir alias Papi v. The State (2020 MLD 1417).

7. We have heard learned counsel for the appellants as well as learned Addl. P.G and perused the material available on record with their able assistance.

8. We have considered the evidence of the prosecution witnesses with the assistance of learned counsel for the appellant and the learned prosecutor and found major contradictions in their evidence and some of the same are as follows:-

(a) As per the memo of arrest and the recovery total of 04 mobile phones were recovered from all three accused persons and at the time of evidence PW-1 deposed about the recovery of 05 mobile phones from their possession and PW-2 deposed about 04 mobile phones, however PW-3 the investigation officer during his cross-examination stated that he received 03 mobile phones which were recovered from the accused persons.

(b) The complainant PW-1 during his cross-examination stated that he himself kept the case property in koth of P.S, however, PW-2 mashir stated during the cross-examination that ASI Aziz handed over the case property in the police station and the same was kept in the room of duty officer both the witnesses gave their contradictory evidence in respect of handing over the case property and keeping it in safe custody.

(c) The complainant PW-1 stated in his cross-examination that he himself took away the accused persons inside the P.S and locked them up and kept the case property in koth of P.S, however, PW-2 mashir stated in his cross-examination that they all police officials kept the accused in the police lockup and he took one bag from police mobile and kept the same in the room of duty officer, whereas the case of the prosecution is that the contraband chars was sealed in three bags separately. PW-2 has not stated a single word that as to whether the other two bags were brought at the police station or not and if they were brought at the police station then again it is doubtful as to who brought those two bags from the police mobile to the police station and where the same were kept for safe custody.

(d) It is the case of the prosecution that charas was recovered from the bags in the shape of pockets but at the time of evidence the complainant PW-l stated during the cross-examination that he weighed each packet of charas separately which reflects that each piece of charas after being taken out from the bag was weighed; however PW-2 in his cross-examination stated that ASI weighed the chars with a bag which reflects, that entire chars along with bag was weighed in one go and not each packet separately.

1. The above-noted contradictions indicate that the complainant and mashir were not the true eye-witnesses of the incident and no such incident of the arrest of the accused and recovery of charas from the possession of appellants had occurred as alleged by the prosecution. Taking notice of the contradictions in the evidence of the complainant and the mashir, we are clear in our mind that the prosecution failed to prove its case against the appellants beyond a shadow of reasonable doubt and the recovery has not been satisfactorily proved. Both the witnesses contradicted each other on material aspects of the case. No implicit reliance can be placed on their evidence in view of aforesaid contradictions on the evidence of prosecution witnesses.

2. It is observed that the mere heinousness of the charge and recovery of a huge quantity of the alleged contraband is no ground to convict the accused. The prosecution is under a bounden responsibility to drive home the charge by proving each limb of its case that essentially included the production of the witness tasked with the responsibility of keeping the narcotic in safe custody and safely transmitting the samples to the office of the Chemical Examiner. Failure to do so is fatal to the prosecution case. In the case, in hand, the property was sent to the Chemical Analyzer through a letter dated: 22-09-2020 with memorandum No. Nil from SHO PS Site A Karachi through SIP Aamir Ghiyas which shows that the property was sent by the SHO P.S Site A Karachi and he was not examined to prove that as to whether he sent the property to the chemical laboratory because in the entire case there no role of the SHO P.S Site A section either of as witness, mashir or of the investigation officer. As per the evidence of complainant PW-1 he deposited the recovered chars in the Koth at the police station and as per the evidence of PW-2 mashir the recovered chars was deposited in the room of the duty officer but the prosecution failed to examine any of them (incharge of the Koth and the duty officer) to prove the safe custody of chars. The prosecution also failed to produce the entry under which the chars was kept at the police station and the same has been admitted by the prosecution witness. Looking at the examination in chief of PW-3 the investigation officer reflects that he sent the case property for chemical examination and he did not state that he brought the property to the office of the chemical examiner. From the above-discussed evidence, it can easily be said that the prosecution has not proved the safe custody and safe transmission of the property to the chemical examiner which creates serious doubt in its case. In this regard Honourable Supreme Court in the case of Mst. Razia Sultana v. The State and another (2019 SCMR 1300), has held as under:-

3. At the very outset, we have noticed that the sample of the narcotic drugs was dispatched to the Government Analyst for chemical examination on 27.2.2006 through one Imtiaz Hussain, an officer of ANF but the said officer was not produced to prove safe transmission of the drug from the Police to the chemical examiner. The chain of custody stands compromised as a result it would be unsafe to rely on the report of the chemical examiner. This Court has held time and again that in case the chain of custody is broken, the Report of the chemical examiner loses reliability making it unsafe to support conviction. Reliance is placed on State v. Imam Bakhsh (2018 SCMR 2039).

4. For the above reasons the prosecution has failed to establish the charge against the appellant beyond reasonable doubt, hence the conviction, and sentence of the appellant is set aside and this appeal is allowed, setting the appellant at liberty unless required in any other case.

5. In another case of Zahir Shah alias Shat v. The State through Advocate General, Khyber Pakhtunkhwa (2019 SCMR 2004), Honourable Supreme Court has held as under:-

6. We have reappraised the evidence with the able assistance of learned counsel for the parties and have noticed at the very outset that the Police constable, bearing No.FC-688, who delivered the sealed parcel to the Forensic Science Laboratory, Peshawar on 27.2.2013 was not produced by the prosecution. This fact has been conceded by the learned law officer appearing on behalf of the respondents. This court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. Reliance is placed on State v. Imam Bakhsh (2018 SCMR 2039).

7. 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 tampering 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 prosecution's 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 member bench 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)."

8. In the case in hand it is also alleged by the prosecution that the recovery was effected from a Rickshaw in which all three accused persons were travelling. During the trial the said Rickshaw was not produced before the court and also the investigation officer has not conducted an investigation in respect of its owner. From a careful examination of the evidence of witnesses we also do not find that the other articles allegedly recovered from the possession of the accused persons were available in the court at the time of recording evidence which includes cash amount and the mobile phones. Further, the recovery of the chars from the Rickshaw was not put to the accused persons in their statement under section 342 Cr.P.C nor it was shown to them that this was the same Rickshaw from which recovery was effected and it was only put to them that the charas was recovered from their possession which is not the case of the prosecution.

2024 M L D 830

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Mumtaz----Appellant

Versus

The State----Respondents

Special Criminal A.T No.11 of 2021, decided on 5th October, 2022.

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

----Ss. 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Kidnapping or abduction for extorting property, valuable security, etc., rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of three weeks in lodging FIR---Consequential---Accused was charged that he along with his co-accused persons kidnapped many persons on the force of weapons and demanded ransom of Rs. ten lac for their release---As per record, SHO received spy information that dacoits abducted two persons which was confirmed to him by cousin of abductees, however he did not lodge any FIR nor started any investigation even against unknown persons in order to recover the abductees---On 04.03.2011 cousin of two abductees came to the Police Station and informed the SHO that the abductees had been taken by the accused and his gang who had demanded a ransom of Rs. 10 lac, who also told him the names of the dacoit group however he refused to lodge an FIR---Subsequently the SHO lodged the FIR containing all the names of the alleged abductors---Delay of three weeks in lodging the FIR had not been explained at all and significantly the person who gave the complainant the names of the nine suspects who were named in the FIR was not examined as a witness to corroborate that fact---Record was silent as to how the nine persons named in the FIR came to be suspects in the eyes of cousin of abductees or were simply added to the FIR by the complainant on his own whim in order to falsely implicate them as they allegedly belonged to a dacoit group---In kidnapping cases generally a few days delay in lodging the FIR was permissible as the Courts appreciated that the initial concern of the family was in tracing out the missing person rather than immediately going to the police---In this case however the police knew of the incident three weeks in advance and did not do anything---This was a long delay in lodging the FIR even in a kidnapping for ransom case and had not been explained adequately at all which gave the police plenty of time to cook up a false case against the accused which delay was extremely damaging to the prosecution case---Appeal against conviction was allowed, in circumstances.

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

----Ss. 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security, etc., rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with his co-accused persons kidnapped many persons on the force of weapons and demanded ransom of Rs. ten lac for their release---Intriguingly the FIR was lodged on the same day as the abductees were released from the dacoits following a police encounter which begged the question why one of the abductees did not lodge the FIR---Complainant and other police witnesses went to the place of wardat (occurrence) after registration of the FIR but how did they know where the wardat was as no one pointed it out to them---At the place of wardat, police made no recovery---No Police Officer who allegedly was involved in the encounter with the dacoits which led to the release of the abductees gave evidence about the encounter---Nothing was recovered at the time of the encounter so question was whether an encounter actually took place which led to the release of the abductees or was it a made up story---Moreover, there was no evidence of any ransom demand being made or paid or recovered from the accused or any alleged member of his gang---Appeal against conviction was allowed, in circumstances.

The State v Ahmed Omar Sheikh 2021 SCMR 873; Iftikhar Ahmed alias Imtiaz v The State 2022 YLR 84; Master Juman Buriro v The State 2022 YLR 299; Danish Javed v. The State 2018 MLD 394; Abdul Adeel v. The State 2009 SCMR 511; Shahid alias Kaloo v. The State 2009 SCMR 558 and Shah Zaib v. The State 2022 SCMR 1225. ref.

Zafar v The State 2018 SCMR 326 rel.

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

----Ss. 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Kidnapping or abduction for extorting property, valuable security, etc., rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Withholding material evidence---Abductee not appearing as a witness---Effect---Accused was charged that he along with his co-accused persons kidnapped many persons on the force of weapons and demanded ransom of Rs. ten lac for their release---One of the abductees did not give evidence and he could have supported the prosecution case---As such no corroboration as to the events of the abduction could be garnered from said star witness---Wife of said abductee who was also present at the time of the abduction did not give evidence as such no corroboration as to the abduction could be garnered from such witness---Prosecution therefore failed to produce and in fact withheld two of the best witnesses regarding the abduction which further dented the prosecution case---Appeal against conviction was allowed, in circumstances.

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

----Ss. 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security, etc., rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---No medical evidence available---Effect---Accused was charged that he along with his co-accused persons kidnapped many persons on the force of weapons and demanded ransom of Rs. ten lac for their release---Record showed that there was no medical evidence or ocular evidence to prove that after a period of 25 to 27 days in the captivity of the abductors living rough in a tent that the alleged abductees had been maltreated e.g. through beatings or that they had even lost weight due to a lack of food which might be expected in such type of cases---Appeal against conviction was allowed, in circumstances.

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

----Ss. 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security, etc., rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Identification of accused in Court after nine years of occurrence---Effect---Accused was charged that he along with his co-accused persons kidnapped many persons on the force of weapons and demanded ransom of Rs. ten lac for their release---In this case the abductees were released by the police after an alleged encounter on 04.03.2011---On 14.03.2011 one of the abductees gave his S.164, Cr.P.C statement before a Magistrate in which he narrated the incident---Said abductee did not name the accused in his S.164, Cr.P.C statement and did not give any hulia of any of the persons who had held him in captivity---Said abductee identified the accused in the Court room nine years after the incident---Although during re-examination, said abductee stated that he did correctly identify the accused but he had forgiven him---What was of significance was that he was told that the accused had a crippled hand by the police, so he could easily identify the accused in Court as he was distinguishable from the others---Thus, the identification of the accused in the Court became suspicious---Abductee did not draw any sketch of the accused and did not pick him out of any picture which was shown to him with other dacoits---This created severe doubts based on the particular facts and circumstances of this case that the accused was able to correctly, safely and reliably identify the accused in court as one of the persons who played a role in his abduction nine years ago---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Benefit of doubt---Principle---Prosecution must prove its case against the accused beyond a reasonable doubt, and the 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.

Tariq Ali Jakhrani for Appellant.

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

Date of hearing: 29th September, 2022.

Judgment

Mohammad Karim Khan Agha, J.---Appellant Mumtaz was tried in the Court of XII Anti-Terrorism Court, Karachi in Special Case No.09/2011 under FIR No.10 of 2011 under sections 365-A/148 and 149, P.P.C. read with section 7 ATA, 1997 registered at PS Rasheed Waggan, Larkana and vide judgment dated 26.12.2020 the appellant was convicted under section 265-H(2), Cr.P.C. and awarded sentence for the offence under section 365, P.P.C. to suffer R.I. for 07 years with fine of Rs.2,00,000/- and in default of payment of fine he shall undergo S.I. for Six months more. The appellant was also convicted for an offence punishable under section 7(1)(e) of ATA 1997 and awarded sentence of life imprisonment.

1. The brief facts of the prosecution case as per FIR are that complainant SHO Muhammad Mor Chandio received spy information that one Mashooq son of Nabi Bux Mangi and Mehtab son of Ghulam Hussain have been kidnapped near to village Bulhirra situated on road leading from Larkana to Waggan and then for its confirmation police contacted with the cousin of Mehtab kidnapee, who confirmed that on 08.0.2.2011 at about 1900 hrs (1) Ramzan alias Jeet son of Unknown Mugheri resident of Pahanja near Aabri (2) Nang son of Unknown resident of Jalal Mugheri Taluka Naseerabad (3) Deedar alias Wado son of Unknown Mugheri resident of Jalal Mugheri Goth (4) Gul Bahar son of Unknown Mugheri resident of Jalal Mugheri Goth (5) Sikandar alias Siko son of Unknown Chandio resident of Batyoon Taluka Qamber (6) Fouji son of Unknown Mugehri resident of Ghar Pahanja near Pakho Taluka Qamber (7) Rashid alias Rasho son of Unknonw Mugheri resident of Pahanja Ghar near Aabrio (8) Masti son of Unknown resident of Jalal Mugheri Goth Taluka Naseerabad (9) Mumtaz son of Unknown Mugheri resident of Jalal Mugheri, Taluka Naseerabad and one unidentified accused armed with deadly weapons kidnapped the above named persons on the force of weapons and demanded ransom of Rs.10,00,000/- for their release Hence this FIR.

2. After usual investigation, the case was challaned and the charge was framed against the accused. Thereafter he was sent-up to face the trial where he pleaded not guilty to the charge.

3. The prosecution in order to prove its case examined 08 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342, Cr.P.C in which he denied the allegations leveled against him and claimed false implication by the police. However, the appellant did not give evidence on oath nor produce any DWs in support of his defence case.

4. After hearing the parties and appreciating the evidence on record, the trial court convicted the appellant and sentenced him as set out earlier in this judgment; hence, the appellant has filed this appeal against his conviction.

5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 26.12.2020 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellant has contended that the appellant is innocent and has been falsely implicated in this case by the police hence the late lodging of the FIR; that the appellant although named in the FIR was not named by the eye-witness abductee in his section 164, Cr.P.C. statement; that the kidnapping of the abductees never took place and it is a made up story; that the eye witness evidence especially in terms of correct identification of the appellant by one of the abductees cannot be safely relied upon; that no ransom demand was proven and for any or all of the above reasons the appellant should be acquitted by extending him the benefit of the doubt. In support of his contentions he placed reliance on the cases of The State v Ahmed Omar Sheikh (2021 SCMR 873), Zafar v The State (2018 SCMR 326), Iftikhar Ahmed alias Imtiaz v The State (2022 YLR 84) and Master Juman Buriro v The State (2022 YLR 299).

7. On the other hand learned APG has fully supported the impugned judgment and in particular contended that the appellant was one of the kidnappers who played a role in kidnapping the abductee and his identification by the abductee as one of the kidnappers has been correctly made and as such the prosecution has proved its case against the appellant beyond a reasonable doubt and the appeal should be dismissed. In support of his contention, he has placed reliance on the cases of Danish Javed v. The State (2018 MLD 394), Abdul Adeel v. The State (2009 SCMR 511), Shahid alias Kaloo v. The State (2009 SCMR 558) and Shah Zaib v. The State (2022 SCMR 1225).

8. We have heard the arguments of the learned counsel for the appellant and learned Additional Prosecutor General Sindh and gone through the entire evidence which has been read out by the learned counsel for the appellant and the impugned judgment with their able assistance and have considered their arguments and the relevant law including the case law cited at the bar.

9. After our reassessment of the evidence we find that the prosecution has NOT proved beyond a reasonable doubt the charge against the appellant for which he was convicted keeping in view that each criminal case is based on its own particular facts, circumstances and evidence for the following reasons;

(a) The first aspect of the case is whether the kidnapping actually took place which we shall consider in detail below;

(i) That according to the evidence of PW 1 Muhammed Mor who was SHO PS Rasheed Waggan on 08.02.2011 at about 1950 hours on that day he received spy information that on the road leading from Larkana to Waggan dacoits abducted Mashhooq Managi and Mehtab Lakhair which was confirmed to him by cousin of Mehtab Lakair namely Nasir Ahmed Lakhair however he did not lodge any FIR and start any investigation even against unknown persons in order to recover the abductees. On 04.03.2011 Nisar Lakhair came to the PS and informed him that the abductees had been taken by the appellant and his gang who had demanded a ransom of RS.10 lacs who also told him the names of the dacoit group however he refused to lodge an FIR so he (PW 1 Muhammed Mor) lodged the FIR containing all the names of the alleged abductors. This delay of 3 weeks in lodging the FIR has not been explained at all and significantly Nisar Lakhair who gave the complainant PW 1 Muhammed Mor the names of the 9 suspects who were named in the FIR was not examined as a witness to corroborate this fact. So we do not know how the 9 persons named in the FIR came to be suspects in the eyes of Nisar Lakhair or were simply added to the FIR by the complainant on his own whim in order to falsely implicate them as they allegedly belonged to a dacoit group. In kidnapping cases generally a few days delay in lodging the FIR is permissible as the courts appreciate that the initial concern of the family is in tracing out the missing person rather than immediately going to the police. In this case however the police knew of the incident 3 weeks in advance and did not do anything. This is a long delay in lodging the FIR even in a kidnapping for ransom case and has not been explained adequately at all which gave the police plenty of time to cook up a false case against the appellant which delay we find to be extremely damaging to the prosecution case especially as it is well settled that such long unexplained delays in lodging FIRs are often fatal to the prosecution case. In this respect reliance is placed on the case of Zafar (Supra). Intriguingly the FIR was lodged on the same day as the abductees were released from the dacoits following a police encounter which begs the question why one of the abciuctees did not lodge the FIR?

(ii) That the complainant and other police PWs- went to the place of wardat after registration of the FIR but how did they know where the wardat was as no one pointed it out to them. At the place of wardat they made no recovery. No police officer who allegedly was involved in the encounter with the dacoits which lead to the release of the abductees gave evidence about the encounter. Nothing was recovered at the time of the encounter so did an encounter actually take place which lead to the release of the abductees or is it a made up story?

(iii) That there is no evidence of any ransom demand being made or paid or recovered from the appellant or any alleged member of his gang.

(iv) That if it was a genuine case of kidnapping the only reason advanced for it was one of ransom of 10 lacs which was never paid. It therefore does not appeal to logic, reason or common sense that a gang of dacoits would look after and feed at their own expense the two abductees for a period of 25 to 27 days without receiving any ransom. Under such circumstances they most likely would have either killed or released them after such a long period if there ransom demand had not been met and there is no evidence that any negotiation was going on to even demand let alone pay a ransom for the release of the abductees.

(v) That one of the abductees namely Mashooq did not give evidence who could have supported the prosecution case as such no corroboration as to the events of the abduction can be garnered from this star witness. His wife Basheera who was also present at the time of the abduction also did not give evidence as such no corroboration as to the abduction can be garnered from this star witness. The prosecution therefore failed to produce and in fact with held two of the best witnesses regarding the abduction which further dents the prosecution case.

(vi) There is no medical evidence or ocular evidence to prove that after a period of 25 to 27 days in the captivity of the abductors living rough in a tent that the alleged abductees had been maltreated e.g through beatings or that they had even lost weight due to d lack of food which might be expected in such type cases.

For the above reasons we have doubts that the abduction for ransom even took place

(b) The second next aspect of the case is that if the abduction for ransom did take place can we safely rely on the identification of the appellant as one of the abductees which aspect we shall consider in detail below;

(i) According to the prosecution case there were two abductees. Mashhooq and Mehtab Ali however one of the abductees as mentioned above Mashooq who was a star witness did not give evidence for the prosecution which left only one eye witness. Mashooq's wife Basheera who was also present at the time of the abduction also did not give evidence and such we are left with only one eye-witness namely PW 6 Mehtab.

(ii) According to the evidence of abductee Mehtab he was kept in confinement by the abductors for between 25 to 27 days. Very often in kidnapping for ransom cases it is held that when an abductee has been in confinement for so long he would be able to identify his abductor and those who played a role in his abduction and thus no identification parade is needed and identification in court will suffice. Each case however must be decided on its own particular facts and, circumstances. In this case the abductees were released by the police after an alleged encounter on 04.03.2011. On 14.03.2011 abductee Mehtab gave his section 164, Cr.P.C. statement before a magistrate in which he narrated the incident. He did not name the appellant in his section 164, Cr.P.C. statement and did not give any hulia of any of the persons who had held him in captivity. For instance he could easily have said that one of them had a crippled hand which was a feature which would have stood out but he failed to do so. He identified the appellant in the court room 9 years after the incident. During cross examination however he states as under, "It is correct to suggest that police disclosed that out of two alive accused persons one is present Mumtaz Mugheri (the appellant) who is crippled from one hand. It is correct to suggest that accused present today before this court is not one who abducted us"

Although during re examination he states that he did correctly identify the accused but he had forgiven him what is of significance is that he was told that the appellant had a crippled hand by the police (a feature which he had not noted before) so he could easily identify him in court as he was distinguishable from the others in the court which is similar to the appellant being shown to the accused before identifying him in court which makes his in court identification of the appellant suspect.

(iii) That after a lapse of 9 years when the appellant gave no hulia or the appellant, did not mention that one of them had a crippled hand in his section 164, Cr.P.C. statement which was recorded after the incident but was later told this by the police. The fact that he did not draw any sketch of the appellant and did not pick him out of any picture which was shown to him with other dacoits gives us severe doubts based on the particular facts and circumstances of this case that the appellant was able to correctly, safely and reliably identify the appellant in court as one of the persons who played a role in his abduction 9 years ago.

2024 M L D 843

[Sindh]

Before Aftab Ahmed Gorar, J

Mst. Nazia and another----Applicants

Versus

The State----Respondent

Criminal Bail Application No.1482 of 2022, decided on 20th September, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession and transportation of narcotics---Bail, grant of---Further inquiry---Petitioners were found in possession of four kilograms charas, 2.5 kilograms ICE and 500 grams heroin powder---Contention of the petitioners was that police party picked them up and kept them at an unknown place and booked them in the present case; and that there was no recovery from their possession and the recovery had been foisted upon them---Validity---Perusal of the record showed that the petitioners (accused females) were behind the bars since their arrest and the case was pending trial before the Trial Court---Contention of the petitioners were not rebutted by the Prosecutor ANF, creating doubt, benefit of which would go to the petitioners---Object of bail was to secure the appearance of the accused person at trial by reasonable amount of bail---Cases which did not fall within the prohibitory clause of S.497, Cr.P.C., bail was to be granted as a rule and refusal was an exception---As per F.I.R the narcotics were recovered from the possession of co-accused and not from the present petitioners and the point of selling or purchasing the narcotics would be decided after the evidence was recorded---No exceptional circumstances appeared in this case to withhold bail of the applicants at this stage---To curtail the liberty of a person was a serious step in law---Bail applications were allowed, in circumstances.

Syed Amanullah Shah v. The State PLD 1996 SC 241; Sanjay Chandra v. Central Bureau of Investigation AIR 2012 SC 830; Ghulam Abbas v. State 2006 P.Cr.LJ.413; Tahir Mehmood v. The State 2007 PCr.LJ.112 and Tariq Bashir v. The State PLD 1995 SC 34. rel.

G.M. Korai for Applicants.

Ms. Abida Perveen Channar, Spl. Prosecutor ANF for the State.

Date of hearing: 20th September, 2022.

Judgment

AFTAB AHMED GORAR, J.---The applicants Mst. Nazia wife of Abdul Rahim and Mst. Sumaiya wife of Ilyas booked in Crime No. 21/2022 under section 6/9-C of CNS Act, 1997 read with sections 14/15 CNS Act 1997 registered at Police Station ANF, Karachi on refusal of bail moved before the learned Special Court-II(CNS) Karachi vide order dat 16.07.2022 have approached this court for seeking post arrest bail.

1. In nutshell the facts of the case are that on 02.06.2022 a police party apprehended the applicants and other accused and from search recovered 4Kgs Charas, 2.5.Kg ICE and 500 grams heroin powder hence the above FIR was registered.

2. Learned counsel for the applicant submits that the applicants are innocent and have been falsely implicated in this case due to mala fide intention and ulterior motives. He further contended that nothing has been recovered from the possession of applicants. He further submitted that on 28.05.2022 the police party had picked upon the present applicants from their houses and confined at unknown place and thereafter the applicants have been booked in this crime. He further submitted that the alleged recovery has been foisted upon the applicants by the ANF Officials on refusal of illegal demands; the entire story of prosecution is doubtful and matter requires further inquiry. Lastly, learned counsel for the applicants prayed that applicants are ladies and they may be admitted to bail as they are not previously convicted, hardened and disparate criminal.

3. Learned Special Prosecutor ANF submitted that applicants were apprehended red handed and on their search 4Kgs Charas, 2.5 Kg Ice and 50 grams heroin powder has been recovered, hence she opposes the bail to the applicants as they are in a crime which is against the society and are liable for punishment provided under the law.

4. Perusal of the record shows that the applicants are behind the bars since their arrest the case is pending trial before the trial court. Learned counsel for the applicants during the course of his arguments submitted that police party had picked up both the applicants and after keeping them at unknown place booked them in this case and further that there is no recovery from the possession of present applicants and the recovery of 4Kgs Charas, 2.5.Kg Ice and 500 grams heroin powder has been foisted upon them. Such arguments of learned counsel for the applicants, which were not rebutted by the learned Spl. Prosecutor ANF, create doubt, benefit of which shall go to the applicants. In the case reported as Syed Amanullah Shah v. The State (PLD 1996 SC 241) Hon'ble Supreme Court has held as under:

"So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail then in the jail, during the trial. Freedom of an individual is a precious right. Personal liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused".

2024 M L D 853

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Muhammad Hassan and another----Appellants

Versus

The State----Respondent

Criminal Appeals Nos.356 and 337 of 2021, decided on 2nd November, 2022.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4---Transportation of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody of narcotics not established---Contradictory statements---Accused were found in possession 18 packets containing charas in total weighing 21 kilos and 600 grams---Accused were arrested by the police on 11.10.2020 and the recovery of narcotics was made from the bus in which one accused was allegedly the driver and the other accused was allegedly a passenger wherefrom a huge amount of narcotics was recovered from a secret cavity in the bus---Such narcotics initially remained with official witness who according to the prosecution evidence handed them over to the other official witnesses on the same day where they were allegedly kept in the Malkana---In this respect the prosecution relied on Entry No.47, however such entry did not support the prosecution case in this regard---Furthermore, the Malkhana in charge was not examined by the prosecution to prove the safe custody of the narcotic and as such it was unclear where the narcotic was kept before it was taken for chemical examination on 12.10.2020 and thus based on the particular facts and circumstances of the case, it was found that the prosecution had not been able to prove safe custody of the narcotic from the time when it was recovered from the accused till the time when the same was sent for chemical examination and as such the chemical report was of no value to the prosecution in proving the recovered narcotic---Even if safe custody and safe transmission of the narcotic had been proven the chemical report was of no evidentiary value as it was not put to the accused persons during the recording of their S.342, Cr.PC statements and as such could not be used to convict them---Appeal against conviction was allowed, in circumstances.

Kamran Shah and others v. The State and others 2019 SCMR 1217 ref.

Haji Nawaz v. The State 2020 SCMR 687 and Qaisar Khan v. State 2021 SCMR 363 rel.

Ahmed Ali for Appellant (in Criminal Appeal No. 356 of 2021).

Muhammad Iqbal Awan, Addl. Prosecutor General Sindh for the State (in Criminal Appeal No. 356 of 2021).

Baber Hamid for Appellant (in Criminal Appeal No. 337 of 2021).

Muhammad Iqbal Awan, Addl. Prosecutor General Sindh for the State (in Criminal Appeal No. 337 of 2021).

Date of hearing: 28th October, 2022.

Judgment

Mohammad Karim Khan Agha, J.---Appellants Muhammad Hassan and Muhammad Abbas were tried in the Model Criminal Trial Court/Additional Sessions Judge Malir, Karachi in Sessions Case No.1977/2020 under FIR No.956/2020 under sections 6/9-C of CNS Act 1997, registered at PS Sachal, Karachi and vide judgment dated 27.05.2021 they were convicted and sentenced under sections 6/9-C and section 14 of CNS Act, 1997 for life imprisonment and imposed fine of Rs.5,00,000/- and in case of default in payment of fine they shall undergo S.I. for four months more. However, the appellants were granted benefit of Section 382-B, Cr.P.C.

1. The brief facts of the prosecution case are that on 11.10.2020 at 1300 hours at main Super Highway Road, 4-C Bus Stop, Area Sachal, Karachi a police party headed by SIP Muhammad Akram of PS Sachal, stopped Bus bearing Registration No.LES-6300 which was driven by accused Muhammad Abbas son of Ahmed Jan and co-accused Muhammad Hassan son of Abdul Razzaq was passenger on the bus and during search of the Tool Box in the bus the police secured 18 packets containing Chars in total weighing 21 Kilo and 600 grams which was kept by Muhammad Hassan with their knowledge, in presence of mashirs, hence the instant FIR.

2. After usual investigation the charge was framed against the accused persons and they were sent-up to face the trial where they pleaded not guilty to the charge.

3. The prosecution in order to prove its case examined 03 witnesses and exhibited various documents and other items. The statements of accused were recorded under Section 342, Cr.P.C. in which they denied the allegations leveled against them. Neither of the appellants gave evidence on oath nor called any DW in support of their defence case.

4. After hearing the parties and appreciating the evidence on record, the trial court convicted the appellants and sentenced them as set out earlier in this judgment; hence, the appellants have filed these appeals against their convictions.

5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellants contended that they were completely innocent and had been falsely implicated in the case by the police; that there were contradictions in the evidence of the prosecution witnesses and as such their evidence could not be safely relied upon; that the bus from where the narcotics were recovered was not produced at trial; that safe custody and safe transmission of the narcotic had not been proven; that the chemical report which the prosecution had relied upon had not been put to the appellants at the time when they recorded there 342, Cr.P.C. statements and as such the chemical report could not be used against the appellants in order to convict them and as such for any or all of the above reasons the appellants should be acquitted of the charge by being extended the benefit of the doubt. In support of their contentions they placed reliance on the cases of Haji Nawaz v. The State (2020 SCMR 687) and Kamran Shah and others v. The State and others (2019 SCMR 1217).

7. Learned Additional Prosecutor General Sindh has fully supported the impugned judgment and has submitted that the appeals are without merit and should be dismissed.

8. We have heard the arguments of the learned counsel for the appellants and learned Additional Prosecutor General Sindh and have also gone through the entire evidence which has been read out by the learned counsel for the appellants and the impugned judgment with their able assistance.

9. In narcotic cases, one of the most crucial aspects is that the prosecution must prove safe custody of the narcotic from the time of its recovery until the time when it is sent for chemical examination. If they fail to do so then there is a possibility that the narcotic substance had been tampered with before it was received at the chemical laboratory for its examination. In such like cases where unbroken chain of custody cannot be proved by the prosecution then the chemical report is of no value. It is noted that this is the view taken by the Supreme Court regardless of the amount of the recovery whether small or huge as the principle remains the same. In this case the appellants were arrested by the police on 11.10.2020 and the recovery of narcotics was made from the bus in which one appellant was allegedly the driver and the other appellant was allegedly a passenger wherefrom a huge amount of narcotics was recovered from a secret cavity in the bus. Those narcotics initially remained with PW 3 Muhammed Akram who according to the prosecution evidence handed them over to the SIO presumably PW 2 Amir Memon on the same day where they were allegedly kept in the Malkana. In this respect the prosecution relied on entry No.47 however entry No.47 does not support the prosecution case in this regard. Furthermore, the malkhana incharge was not examined by the prosecution to prove the safe custody of the narcotic and as such it is unclear where the narcotic was kept before it was taken for chemical examination on 12.10.2020 and thus based on the particular facts and circumstances of this case we find that the prosecution has not been able to prove safe custody of the narcotic from the time when it was recovered from the appellants till the time when the same was sent for chemical examination and as such the chemical report is of no value to the prosecution in proving the recovered narcotic.

10. With regard to the importance of the prosecution proving safe custody of the narcotic from the time of its recovery to the time it was sent for chemical analysis the same was stressed/ emphasized by the Supreme Court in the case of Qaisar Khan v. State (2021 SCMR 363) which held as under;

"3. We have heard the learned counsel for the petitioner as well as the learned Additional Advocate General, KPK and perused the available record along with the impugned judgment with their assistance and observed that in this case the prosecution has failed to establish the safe custody and safe transmission of sample parcels to the concerned laboratory. This court had laid down in many judgments that the representative samples of the alleged drug must be kept in safe custody and undergo safe transmission from the stage of recovery till its submission to the office of the Government analyst. Non establishing the said facts would cast doubt and would impair and vitiate the conclusiveness and reliability of the report of the Government analyst. Thus rendering it incapable of sustaining conviction.

1. In the present case no police official was produced before the Trial Court to report about safe custody of samples if entrusted to him for being kept in the Malkhana in safe custody. Even the police official whose belt number (FC 4225) has been mentioned by the Government analyst in his report, was not produced by the prosecution to depose regarding the safe deposit of the said sample parcels in the concerned laboratory. The record reveals that the recovery was allegedly effected on 19.08.2011 whereas, according to the report of chemical examiner, the sample parcels were received in the said office on 26.08.2011. Nobody from the prosecution side was produced to claim that during this period the said sample parcels remained intact in his possession or under his control in the Malkhana in safe custody. Even the prosecution is silent as to where remained these sample parcels from 19.08.2011 to 26.08.2011. In absence of establishing the safe custody and safe transmission, the element of tampering 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 Substance (Government Analysts) Rules 2001 (Rules 2001), rest upon the report of the analyst. It is prosecution's bounden 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 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 the three members benches of this court i.e. Ikramullah v. The State (2015 SCMR 1002), The State v. Imran 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 thr. 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) and Gulzar v. The State (2021 SCMR 380)."

2024 M L D 862

[Sindh]

Before Zafar Ahmed Rajput and Amjad Ali Bohio, JJ

Muhammad Ali----Appellant

Versus

The State----Respondent

Special Criminal A.T. Appeals Nos. 78 and 79 of 2023, decided on 1st December, 2023.

Penal Code (XLV of 1860)---

----Ss. 324 & 353--- Sindh Arms Act (V of 2013), S. 23 (1)(a)--- Attempt to qatl-i-amd, police encounter and recovery of firearms--- Appreciation of evidence--- Recovery of weapons--- Benefit of doubt--- Charge, proof of--- Onus to prove--- Accused was convicted by Trial Court and was variously sentenced with maximum imprisonment upto three years--- Validity--- Recovery of pistol and empties from crime scene were not presented in a clear and sequential manner--- Prosecution was bound to prove its case against accused beyond any shadow of reasonable doubt but no such duty was caste upon accused to prove his innocence--- High Court set aside conviction and sentence awarded by Trial Court as the same was not supported by confidence inspiring evidence and accused was acquitted of the charge--- Appeal was allowed, in circumstances.

Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

Ajab Khan Khattak for Appellant.

Khadim Hussain Khuharo, Addl. Prosecutor General, Sindh for the State.

Date of hearing: 20th November, 2023.

Judgment

Amjad Ali Bohio, J.----These appeals are directed against the consolidated judgment, dated o 29.04.2023, passed in Special Case No. 309-A of 2022 (arising out of FIR No. 501/2022 registered at Police Station Pakistan Bazar, Karachi under Sections 324,353,34, P.P.C. read with Section 7 of the Anti-Terrorism Act, 1997) and Special Case No. 309-C of 2022 (arising out of FIR No. 503/2022, registered at the said Police Station under Section 23(1)(a) of the Sindh Arms Act, 2013), whereby the Anti-Terrorism Court No. IV, Karachi ("the trial Court") has convicted the appellant/accused and sentenced him, as under:

a. Accused Muhammad Ali son of Ghulamullah Jilani is found guilty for the offences under section 324/34, P.P.C, he is convicted and sentenced to suffer imprisonment for two years, and fine of Rs. 5,000/- (Rupees five thousand), in case of default of payment of fine, he shall further suffer imprisonment for one month.

b. Accused Muhammad Ali son of Ghulamullah Jilani is found guilty for the offence under section 353, P.P.C, he is convicted and sentenced to suffer imprisonment for two years, and fine of Rs. 5,000/- (Rupees five thousand), in ca of default of payment of fine, he shall further suffer imprisonment for one month, c. Accused Muhammad Ali son of Ghulamullah Jilani is found guilty for the offence punishable under section 23 (1)(a) of the Sindh Arms Act 2023, he is convicted and sentenced to suffer imprisonment for three years, and fine of Rs. 5,000/- (Rupees five thousand), in case of default of payment of fine, he shall further suffer imprisonment for two months.

1. It is alleged that, on 07.06.2022 at 03:00 a.m., a police party led by SIP Shoukat Ali reached during course of patrolling near under-construction Qatar Hospital in Gulshan-e-Zia, Sector 11-1/2, Orangi Town, Karachi where accused Muhammad Anwar and Muhammad Ali/ appellant riding on a motorcycle, in furtherance of their common intention, fired on police party with intention to kill and deterred them from performing their lawful duties. In retaliation, police party also opened fire. Resultantly, both the accused fell down and apprehended by the-police party. On search, a steel body 30-bore pistol bearing No. HAC-3346, with a magazine containing two live bullets, was recovered from co-accused Muhammad Anwar and a 30-bore pistol, rubbed number, with a magazine loaded with two live bullets, was recovered from appellant. The accused failed to produce licences for the recovered pistols. Motorcycle bearing registration No. KCK-5340, Super Star, black color-70, with chassis number BE.024055, was also seized. The recovered arms were sealed on the spot; such Memo of Arrest and Recovery was prepared in the presence of mashirs, and the accused persons were booked in aforementioned FIRs.

2. After usual investigation, police submitted reports under Section 173, Cr.P.C. The case of the appellant proceeded separately being a juvenile offender from the case of co-accused Muhammad Anwar. The trial Court amalgamated the aforesaid cases under Section 21-M of the Anti-Terrorism Act, 1997 and framed the charge against the appellant on 22.08.2022, to which he pleaded not guilty and opted for a trial.

3. At the trial, in order to substantiate the charge, prosecution examined PW-1 SIP Shoukat Ali (Complainant) at Exh. 6; PW-2 PC Sohail (Mashir) at Exh. 7; PW-3 Dr. Sir Chand (MLO) at Exh. 9; PW-4 HC Abdullah Shah (Head Moharar) at Exh. 10; PW-5 PC Mohsin at Exh. 11 and PW-6 Inspector Muhammad Ashraf (I.O) at Exh. 12. They produced relevant documents, recovered articles and exhibited them before the trial Court. The statement of appellant was recorded under Section 342, Cr.P.C, at Exh. 14, wherein he denied the prosecution case and claimed to be innocent by alleging that his brother Abdullah was absconder in a case, police raided at his house and took the motor-cycle and licensed pistol of his father and then booked him falsely in these cases. The appellant did not opt to be examined on oath as his own witness; however, he produced his father Ghulamullah Jilani as defence witness, who was examined at Exh. 15. He produced copies of the applications sent to different authorities along with TCS receipt and the licence No. HKC-3346 of the 30-bore pistol. After hearing the learned counsel for the parties, the trial Court found the appellant guilty and thus convicted him vide impugned judgment.

4. Heard the learned counsel for the appellant as well as Addl. P.G. and scanned the record with their assistance.

5. Learned counsel for the appellant has argued that the appellant is innocent has falsely been implicated in the cases; that police raided at the appellant's residence, took his father's motorcycle and pistol along with the appellant, under the pretext that the appellant's brother, Abdullah, was an absconder; that the alleged encounter was fake one to justify illegal act of the police; that in fact after his unlawful arrest, the appellant was shot in the leg by the police and the police foisted licensed pistol of appellants' father on co-accused Muhammad Anwar; that the impugned judgment being result of non-reading and misleading of the evidence on record is liable to be set aside.

6. Conversely, the learned Addl. P. G. has supported the impugned judgment by maintaining that the appellant was involved in assaulting on police party, he was arrested after a police encounter and an unlicenced pistol was recovered from his possession at the spot; that the prosecution successfully proved its case beyond any reasonable doubt, thus, the trial Court rightly convicted the appellant and the present appeals are liable to be dismissed being devoid of any merit.

7. As per prosecution case, the appellant was sitting on the motorcycle when he received firearm injury and he fell down from motor-cycle. As per MLC (Exh. 9/A), the appellant received firearm penetrating wound at right thigh posterior with inverted margin (wound of entry). It is hardly believable that on such sitting position on the motor-cycle one can receive injury in hamstring muscles/posterior compartment of the thigh. Hence, medical evidence does not corroborate the ocular account of the incident. According to the evidence of the PWs, the appellant also fired upon the police party to evade his arrest. 'The distance between the police party and the accused at the time of alleged encounter, as testified by PW-2 PC Sohail, was 4/5 meters, but admittedly none from the police party sustained any injury in the encounter. So much so, the police mobile parked approximately 3/4 feet away from the police party during the alleged encounter, did not receive any bullet or even a single scratch, similarly, no scratch or bullet mark was found on the motorcycle.

2024 M L D 872

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Kosar alias Munna----Appellant

Versus

The State----Respondent

Spl. Criminal A.T. Appeals Nos.89 and 90 of 2021, decided on 17th October, 2022.

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

----Ss. 302(b), 324, 353 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---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, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---First Information Report lodged with promptitude---Prosecution case was that an encounter took place which resulted into death of one accused and one on duty Police Constable---Record showed that the FIR was lodged with promptitude after only two hours of the incident and that slight delay was caused because the complainant was organizing taking the deceased to hospital where his life might have been saved and thereafter he lodged the FIR, as such he had no time to consult with the other police or anyone else in order to cook up a false case against the accused---Complainant's mind would have been in turmoil following the incident and at that point in time his main concern would have been the condition of his seriously injured colleague rather than putting together a false narrative in order to implicate the accused---Thus, it was found that there had been hardly any delay in lodging the FIR and even such slight delay had been fully explained---In any event the accused was named in the FIR as he was arrested on the spot and neither the prosecution had been benefited nor the accused prejudiced on account of such slight delay in lodging the FIR which based on the particular facts and circumstances of the case was not fatal to the prosecution case---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt for the offences under P.P.C---Appeal against conviction was dismissed, in circumstances.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

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

----Ss. 302(b), 324, 353 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---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, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Ocular account proved---Prosecution case was that an encounter took place which resulted into death of one accused and one on duty Police Constable---Ocular account of the incident had been furnished by four witnesses---Complainant, who was also eyewitness of the incident, was not a chance witness as he was on patrol at the time of the incident---Complainant was not related to the deceased and had no ill will or enmity with the accused and had no reason to falsely implicate him in the case---Moreover, it was a day light incident where the accused was arrested on the spot with the help of the Mohalla people who had gathered there and thus there was no case of mistaken identity---First Information Report which named the accused and narrated the incident was lodged with promptitude and no significant improvements were in its content during the course of his evidence---Complainant gave his evidence in a natural manner which was not dented despite a lengthy cross-examination---Evidence of the complainant was found to be reliable, trust worthy and confidence inspiring---Other eyewitness was present on patrol with complainant at the time of the incident---Evidence of said eyewitness corroborated with evidence of complainant in all material aspects with some minor discrepancies which were not found to be material---Remaining two witnesses lived in the same street where the encounter took place and were not chance witnesses and gave evidence that they heard the firing and that after the firing they came out of their houses and saw the accused being grabbed and maltreated by mohalla people before being arrested by the police---Said witnesses had no enmity or ill will towards the accused and had no reason to give false evidence against him---Evidence of said two witnesses also fit in with the evidence of other witnesses who reached the crime scene after the incident and they were not dented during cross examination and as such their evidence was believable---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt for the offences under P.P.C---Appeal against conviction was dismissed, in circumstances.

Afaq Ahmed v The State 2020 YLR 676; Rajib v. The State 2020 PCr.LJ 1342; Muhammad Akram v. The State 2022 SCMR 18; Muhammad Arif v. The State 2019 SCMR 631; Gulfam v. The State 2017 SCMR 1189; Muhammad Rafique v. The State 2014 SCMR 1698; Sardar Bibi v. Munir Ahmed 2017 SCMR 344; Muhammad Ajmal v. The State 2017 MLD 266; Akhtar Ali v. The State 2008 SCMR 6; Ghulam Qadir v. The State 2008 SCMR 1221; Muhammad Din v. The State 1985 SCMR 1046; Muhammad Waris v. The State 2008 SCMR 784; Nizamuddin v. The State 2010 SCMR 1752; Majhi v. The State 1970 SCMR 331; Khalid Naseer v. The State 2020 SCMR 1966; Abdul Majeed v. The State 2008 SCMR 1228; Amrood Khan v. The State 2003 SCJ 604 and Ijaz Ahmed v. The State 2022 SCMR 1577 ref.

Muhammad Ehsan v. The State 2006 SCMR 1857; Farooq Khan v. The State 2008 SCMR 917; Niaz-ud-Din and another v. The State and another 2011 SCMR 725; Muhammad Ismail v. The State 2017 SCMR 713 and Muhammad Waris v. The State 2008 SCMR 784 rel.

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

----Ss. 302(b), 324, 353 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---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, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Medical evidence supporting ocular account---Prosecution case was that an encounter took place which resulted into death of one accused and one on duty Police Constable---Medical evidence of Medico-Legal Officer and medical reports fully supported the eye-witnesses/prosecution evidence, which confirmed that the deceased died from a fire arm shot to his chest---No blackening around the wound was found which indicated that it was not made from within three feet which fit in with the prosecution case of the distance between the parties during the encounter i.e. not from within three to four feet---Deceased co-accused was also found to have been killed by one fire arm shot during the encounter which also fit in with the prosecution case of an encounter and one accused being killed in the encounter on the spot who later was disclosed by the accused---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt for the offences under P.P.C---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324, 353 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---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, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Recovery of pistol from the accused and crime empties from the spot---Reliance---Prosecution case was that an encounter took place which resulted into death of one accused and one on duty Police Constable---Empties which were recovered at the scene led to a positive Forensic Science Laboratory with the pistol which was recovered from the accused at the scene when he was arrested on the spot for which he was not able to produce a valid license---Likewise the empties recovered at the scene of the crime also matched with pistol of complainant which supported his evidence of firing at the accused during the encounter---Delay of sending the pistols and empties to Forensic Science Laboratory for six days was not material based on the particular facts and circumstances of that case and could not outweigh the ocular evidence---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt for the offences under P.P.C---Appeal against conviction was dismissed, in circumstances.

Nizamuddin v. The State 2010 SCMR 1752 and Muhammad Din v. The State 1985 SCMR 1046 rel.

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

----Ss. 302(b), 324, 353 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---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, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Recovery of motorcycle used by the accused---Consequential---Prosecution case was that an encounter took place which resulted into death of one accused and one on duty Police Constable---Record showed that the bike which the accused and one his deceased co-accused were riding at the time of the incident was found to be owned by deceased co-accused who was killed at the time of the encounter---Said fact once again linked the accused to the crime scene---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt for the offences under P.P.C---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324, 353 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---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, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Police witnesses, evidence of---Reliance---Prosecution case was that an encounter took place which resulted into death of one accused and one on duty Police Constable---In the present case, it had not been proven through evidence that any of the police witnesses who gave evidence had any enmity or ill will towards the accused and had no reason to falsely implicate him in the case for instance by planting a pistol on him---In such circumstances, the evidence of the police witnesses could be fully relied upon---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt for the offences under P.P.C---Appeal against conviction was dismissed, in circumstances.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302(b), 324, 353 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---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, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Minor contradictions---Not consequential---Prosecution case was that an encounter took place which resulted into death of one accused and one on duty Police Constable---Record showed that all the witnesses were consistent in their evidence and even if there were some contradictions in their evidence, these were as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the accused---Evidence of the witnesses provided a believable corroborated unbroken chain of events---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt for the offences under P.P.C---Appeal against conviction was dismissed, in circumstances.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss. 302(b), 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---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, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Non-association of private witnesses at the time of arrest and recovery---Inconsequential---Prosecution case was that an encounter took place which resulted into death of one accused and one on duty Police Constable---Fact that S.103, Cr.P.C, was not complied with, based on the particular facts and circumstances of the case and the other available evidence on record, could not be given much significance as it had now virtually been judicially recognized that in such type of criminal cases now a days due to general apathy in the public and fear of reprisals independent people were not willing to act as mashirs and unnecessarily embroil themselves in the legal process which might have repercussions on both them and their family---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt for the offences under P.P.C---Appeal against conviction was dismissed, in circumstances.

Salah-uddin v. The State 2010 SCMR 1962 and Ibrarullah v. State 2021 SCMR 128 rel.

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

----S.7---Penal Code (XLV of 1860), Ss. 302(b), 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Act of terrorism, qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illicit weapon---Appreciation of evidence---Act of terrorism not made out---Prosecution case was that an encounter took place which resulted into death of one accused and on duty Police Constable---Based on the particular facts and circumstances of the case, it appeared that the intent of the accused persons was to rob people in the local area however when they were confronted by the police they fired upon them in order to make their escape good---Firing made by accused persons had no object, intent, purpose or design to create terror which was done only to escape from the police and as such the accused was acquitted of all offences under the Anti-Terrorism Act, 1997.

Ghulam Hussain v. State PLD 2020 SC 61 rel.

Tariq Mehmood for Appellant.

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

Date of hearing: 12th October 2022.

Judgment

MOHAMMAD KARIM KHAN AGHA, J.---The appellant Kosar alias Munna son of Muhammad Badar has preferred these appeals against the judgment dated 14.06.2021 passed by learned Judge, Anti-Terrorism Court No.VII, inside Central Prison at Karachi in Special Case No.15(vii)/2020 arising out of Crime No.472 of 2020 under sections 302/353/324/34, P.P.C. read with section 7 ATA 1997 and Special Case No.15- A(vii)/2020 arising out of Crime No.473 of 2020 under section 23(1)(a) of Sindh Arms Act, 2013 registered at P.S. Suirjani Town, Karachi whereby the appellant was convicted and sentenced as under:-

i) Accused Kosar alias Munna son of Muhammad Badar was convicted for the offence under section 302 P.P.C. and sentenced to suffer R.I. for life and to pay fine of Rs.200,000/- (Two Lacs). In case of default in payment of fine he shall suffer S.I. for six months more.

ii) Accused Kosar alias Munna son of Muhammad Badar was convicted for the offence under section 7(a) of Anti-Terrorism Act 1997 and sentenced to suffer R.I. for life and to pay fine of Rs.200,000/- (Two Lacs). In case of default in payment of fine he shall suffer S.I. for six months more.

iii) Accused Kosar alias Munna son of Muhammad Badar was convicted for the offence under section 324, P.P.C. and sentenced to suffer R.I. for five years and to pay fine of Rs.20,000/ - (Twenty Thousand). In case of default in payment of fine he shall suffer S.I. for six months more.

iv) Accused Kosar alias Munna son of Muhammad Badar was convicted for the offence under section 7(b) of Anti-Terrorism Act 1997 and sentenced to suffer R.I. for ten years and to pay fine of Rs.5,000/- (Five Thousand). In case of default in payment of fine he shall suffer S.I. for three months more.

v) Accused Kosar alias Munna son of Muhammad Badar was convicted for the offence under section 353, P.P.C. and sentenced to suffer R.I. for one year and to pay fine of Rs.3,000/- (Three Thousand). In case of default in payment of fine he shall suffer S.I. for six months more.

vi) Accused Kosar alias Munna son of Muhammad Badar was convicted for the offence under section 7(h) of Anti-Terrorism Act 1997 and sentenced to suffer R.I. for five years and to pay fine of Rs.20,000/- (Twenty Thousand). In case of default in payment of fine he shall suffer S.I. for three months more.

vii) Accused Kosar alias Munna son of Muhammad Badar was convicted for the offence under section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to suffer R.I. for ten years and to pay fine of Rs.10,000/- (Ten Thousand). In case of default in payment of fine he shall suffer S.I. for three months.

All the sentences were ordered to run concurrently. The benefit of section 382(b) Cr.P.C. was also extended to the appellant.

1. The facts of the case as averted in the FIR are that on 22.05.2020 PC Sohail along with PC Mehboob, PC Ghulam Hyder and PC Yaqoob of PS Surjani Town during patrolling on two official Bikes reached at Katcha Pakka Road, Nasri Goth Surjani Town, Karachi at about 1200 noon and found two suspects coming on motor bike bearing Registration No. KMT-7701. The police party signaled them to stop but the suspects accelerated and speeded-up their bike and the police chased them to which the accused sitting on rear seat of bike opened fire on the police party which was retaliated by the police. During the shootout, the culprit driving the bike was gunned down by the policemen and expired at the spot, whose name later on came to be known as Faisal son of Unknown, whereas present accused seated on the rear seat sustained injuries due to fall from the Bike and was arrested at the spot along with unlicensed 30 bore pistol, loaded with two live rounds. Meanwhile, during the encounter PC Mehboob also sustained bullet shots at his person, caused by the accused and was shifted to Abbasi Shaheed Hospital where later on he succumbed to his wounds at hospital.

2. After completion of investigation I.O. submitted charge sheet against the accused who plead not guilty to the charge and claimed trial. The prosecution in order to prove its case examined 11 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342, Cr.P.C. in which he denied the allegations leveled against him and claimed false implication by the police. The appellant however did not examine himself on oath and did not call any DW's in support of his defence case.

3. After hearing the parties and appreciating the evidence on record, the trial court convicted the appellant and sentenced him as set out earlier in this judgment; hence, the appellant has filed this appeal against his conviction.

4. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

5. Learned counsel for the appellant has contended that there was an unexplained delay in filing the FIR which lead to the complainant cooking up a false case against the appellant; that the alleged eye-witnesses were planted witnesses and were not present at the time of the incident; that no encounter took place; that no independent mashir was associated in violation of S.103, Cr.P.C; that the pistol was foisted on the appellant; that there are material contradictions in the evidence of the witnesses which renders their evidence unreliable; that the alleged eye-witnesses have made up the story in order to save PC Sohail who shot the deceased by mistake and that for any or all of the above reasons the appellant should be acquitted of the charge by being extended the benefit of the doubt. In support of his contentions, he placed reliance on the cases of Afaq Ahmed v The State (2020 YLR 676), Rajib v. The State (2020 PCr.LJ 1342), Muhammad Akram v. The State (2022 SCMR 18), Muhammad Arif v. The State (2019 SCMR 631), Gulfam v. The State (2017 SCMR 1189), Muhammad Rafique v. The State (2014 SCMR 1698), Sardar Bibi v. Munir Ahmed (2017 SCMR 344), Muhammad Ajmal v. The State (2017 MLD 266), Akhtar Ali v. The State (2008 SCMR 6), Ghulam Qadir v. The State (2008 SCMR 1221) and Muhammad Din v. The State (1985 SCMR 1046).

6. On the other hand learned Additional Prosecutor General Sindh has contended that the evidence of the eye-witnesses is reliable, truthful and confidence inspiring and is to be believed; that empties recovered at the spot were matched with the pistol which was recovered from the accused on the spot; that the medical evidence supported the ocular evidence and as such the impugned judgment should be upheld and the appeal be dismissed. In support of his contentions, he placed reliance on the cases of Muhammad Waris v. The State (2008 SCMR 784), Nizamuddin v. The State (2010 SCMR 1752), Majhi v. The State (1970 SCMR 331), Khalid Naseer v. The State (2020 SCMR 1966), Abdul Majeed v. The State (2008 SCMR 1228), Amrood Khan v. The State (2003 SCJ 604) and Ijaz Ahmed v. The State (2022 SCMR 1577).

7. We have heard the arguments of the learned counsel for the appellant and learned Additional Prosecutor General Sindh and gone through the entire evidence which has been read out by the learned counsel for the appellant, and the impugn6d judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

8. Based on our reassessment of the evidence of the PWs especially the medical evidence and other medical reports, recovery of empties at the crime scene we find that the prosecution has proved beyond a reasonable doubt that PC Mehboob (the deceased) was shot and murdered by firearm on 22.05.2020 at about 12 noon near Katcha Pakka road, Nasri Goth, Surjani Town Karachi.

9. The only question left before us therefore is whether it was the appellant who fired at and murdered the deceased by firearm at the said time, date and location?

10. After our reassessment of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge in respect of the P.P.C. offences against the appellant but not in respect of the ATA offences for which he is acquitted keeping in view that each criminal case must be decided on its own particular facts and circumstances for the following reasons;

(a) That the FIR was lodged with promptitude after only two hours of the incident and this slight delay was caused because the complainant was organizing taking the deceased to hospital where his life might have been saved and thereafter he lodged the FIR as such he had no time to consult with the other police or anyone else in order to cook up a false case against the accused. His mind would have been in turmoil following the incident and at that point in time his main concern would have been the condition of his seriously injured colleague rather than putting together a false narrative in order to implicate the accused. Thus, we find that there has been hardly any delay in lodging the FIR and even such slight delay has been fully explained. In any event the accused is named in the FIR as he was arrested on the spot and neither the prosecution has been benefited nor the accused prejudiced on account of such slight delay in lodging the FIR which based on the particular facts and circumstances of the case is not fatal to the prosecution case. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872).

(b) We find that the prosecution's case primarily rests on the evidence of the eye-witnesses to the murder of the deceased and whether we believe their evidence whose evidence we shall consider in detail below;

(i) Eye-witness PW 1 Sohail Ahmed. He is the complainant. According to his evidence on 22.05.2020 he was on patrol with the deceased, PW Ghulam Hyder and PC Yaqoob when they saw suspicious persons sitting on a bike which they had followed when the person on the back of the bike opened fire on them. Due to such fire the deceased received firearm injuries and he in retaliation returned fire which lead to the death of one of the persons on the bike (Faisal the driver) and the accused who was also on the bike when it fell down being apprehended by the Mohalla people who maltreated him before he was arrested by the police. The police recovered from him a 30 bore pistol and two live bullets. ASI Idrees who was duty officer at Sujani Town arrived at the spot and collected 4 empties.

This eye-witness is not a chance witness as he was on patrol at the time of the incident. He is not related to the deceased and has no ill will or enmity with the accused and has no reason to falsely implicate him in this case. It was a day light incident where the accused was arrested on the spot with the help of the Mohalla people who had gathered there and thus there is no case of mistaken identity. The FIR which names the accused and narrates the incident was lodged with promptitude and no significant improvement was made in its content during the course of his evidence. He gave his evidence in a natural manner which was not dented despite a lengthy cross examination. We find his evidence to be reliable, trust worthy and confidence inspiring and we believe the same.

We can convict on the evidence of this eye-witness alone though it would be of assistance by way of caution if there is some corroborative/ supportive evidence. In this respect reliance is placed on the case of Muhammad Ehsan v. The State (2006 SCMR 1857). As also found in the cases of Farooq Khan v. The State (2008 SCMR 917), Niaz-ud-Din and another v. The State and another (2011 SCMR 725) and Muhammad Ismail v. The State (2017 SCMR 713). That what is of significance is the quality of the evidence and not its quantity and in this case we find the evidence of this eye-witness to be of good quality and believe the same. It is also significant that the appellant was caught red handed on the spot. In this respect reliance is placed on the cases of Majhi (Supra) and Muhammed Din v State (1985 SCMR 1046). In this case however there is more than one eye-witness.

(ii) Eye-witness PW 10 Ghulam Hyder. He was present on patrol with eye-witness PW 1 Sohail Ahmed at the time of the incident. His evidence corroborates PW 1 Sohail Ahmed's evidence in all material respects save for a few minor discrepancies which we do not find to be material and the same considerations apply to his evidence as to the evidence of PW 1 Sohail Ahmed.

Thus, based on our believing the evidence of the PW eyewitness what other supportive/corroborative material is there against the appellant? It being noted that corroboration is only a rule of caution and not a rule of law. In this respect reliance is placed on the case of Muhammad Waris v The State (2008 SCMR 784)

(c) That PW 7 Faheemuddin and PW 8 Danish both of whom lived in the same street where the encounter took place and were not chance witnesses gave evidence that they heard the firing and that after the firing they came out of their houses and saw the accused being grabbed and maltreated by mohalla people before being arrested by the police. They had no enmity or ill will towards the accused and had no reason to give false evidence against him. Their evidence also fits in with the evidence of other witnesses who reached the crime scene after the incident and they were not dented during cross examination and as such we believe their evidence. Why would mohalla people grab hold of an innocent person and start to maltreat him for absolutely no reason. This does not appeal to logic, reason or common sense or the prevailing ground realities in Karachi as when such an incident occurs and the public have a chance to catch the culprit they often do so and subject him to a serious beating if not worse.

(d) That PW 2 Muhammed Idress who was also a police men who reached the scene shortly after the incident corroborates the eye-witnesses in so far as the after incident events are concerned and recovered 4 empties from the crime scene.

(e) That the medical evidence of MLO PW 5 Dr. Sohail and medical reports fully support the eye-witness/prosecution evidence. It confirms that the deceased died from a fire arm shot to his chest. There was no blackening around the wound which indicates that it was not made from within 3 feet which fits in with the prosecution case of the distance between the parties during the encounter i.e not from within 3 to 4 feet. The deceased co-accused named Faisal was also found to have been killed by one fire arm shot during the encounter which also fits in with the prosecution case of an encounter and one accused being killed in the encounter on the spot who later was disclosed by the accused as being named Faisal.

(f) That it is the case of the prosecution through its witness PW 7 Faheemuddin and PW 8 Danish as discussed above that the accused was grabbed by the mohalla people and maltreated. This conduct from local people is not unusual in Pakistan when they catch hold of a criminal trying to escape and is supported by the medical evidence of PW 6 Dr. Abid Ali who examined the accused after the incident and found his injuries to be consistent with being mal treated by people.

(g) That the empties which were recovered at the scene lead to a positive FSL with the pistol which was recovered from the accused at the scene when he was arrested on the spot for which he was not able to produce a valid license. Like wise the empties recovered at the scene of the crime also matched PW Sohail's pistol which supports his evidence of firing at the accused during the encounter. The delay of sending the pistols and empties to FSL for 6 days is not material based on the particular facts and circumstances of this case and cannot out weigh the ocular evidence as was held in the cases of Nizamuddin (Supra) and Muhammad Ashraf v. The State (2011 SCMR 1046).

(h) That the bike which the accused and his deceased co-accused Faisal were riding at the time of the incident was found to be owned by Faisal who was killed at the time of the encounter which once again links the accused to the crime scene.

(i) That it has not been proven through evidence that any of the police PWs who gave evidence had any enmity or ill will towards the appellant and had no reason to falsely implicate him in this case for instance by planting a pistol on him and in such circumstances it has been held that the evidence of the police PWs can be fully relied upon and as such we rely on the police evidence. In this respect reliance is placed on the case of Mushtaq Ahmed v. The State (2020 SCMR 474).

(j) That all the PWs are consistent in their evidence and even if there are some contradictions in their evidence we consider these contradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the appellant. In this respect reliance is placed on the cases of Zakir Khan v. State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669). The evidence of the PWs provides a believable corroborated unbroken chain of events from the time the police eye-witnesses ordered the accused to stop to the accused riding away on there bike whilst firing at the police to the police firing in retaliation to one of the accused being killed on the spot to the one of the policemen being killed on the spot during the encounter to the apprehension and maltreatment of the accused by mohalla people 50 feet from the incident to the accused arrest on the spot and recovery of pistol from with to his pistol producing a positive FSL report with the empties recovered at the crime scene.

(k) The fact that S.103, Cr.P.C. was not complied with based on the particular facts and circumstances of this case and the other available evidence on record we do not give much significance to as it has now virtually been judicially recognized that in such type of criminal cases now a days due to general apathy in the public and fear of reprisals independent people are not willing to act as mashirs and unnecessarily embroil themselves in the legal process which may have repercussions on both them and their family. In this respect reliance is placed on the cases of Salah-uddin v. The State (2010 SCMR 1962) and Ibrarullah v. State (2021 SCMR 128).

(1) Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but we have also considered the defence case to see if it at all can caste doubt on or dent the prosecution case. The defence case is simply one of false implication by the police as allegedly PW Sohail accidentally shot the deceased for which the accused have produced not an iota of evidence which he was obliged to do once he raised this specific defence. In this respect reliance is placed on the case of Anwar Shamim v. State (2010 SCMR 1971). Importantly the defence case admits the presence of the appellant at the crime scene at the time of the crime along with co-accilsed deceased Faisal and the accused being caught and mistreated by the mohalla people before being handed over to the police. In this respect the appellants reply in his S.342, Cr.P.C. statement to question 45 as to whether he had any thing else to add is reproduced as under for ease of reference;

"I am innocent, booked falsely. On the alleged day of occurrence, I and Faisal were passing from the area when we were signaled by two of the police constables, who were there on Bike. We stopped our bike after passing some distance from the police staff. Neither we were given opportunity to be heard nor searched, rather P.C. Sohail through his official 9mm pistol initiated firing to us, to which he was restrained by RC Mehboob, but the bullet missed us and caused injury to P.0 Mehboob, other bullets hit to Faisal and me. Mohalla people arrived, caused me maltreatment there. Nothing incriminating were either recovered from rue nor .froln deceased Faisal. Police in order to save P.C. Sohail managed the story and thereby booked in this false encounter. I pray for mercy."

2024 M L D 890

[Sindh]

Before Muhammad Junaid Ghaffar and Zulfiqar Ahmad Khan, JJ

Muhammad Naeem----Petitioner

Versus

Federation of Pakistan and others----Respondents

Constitution Petition No.D-5575 of 2023, decided on 31st January, 2024.

Imports and Exports (Control) Act (XXXIX of 1950)---

----S.3---Import Policy Order, 2022, Paras 4 &6 (3)---Notifications SRO 151(I)/2004, dated 10-03-2004 and SRO No.1397(I)/2023 dated 3-10-2023---Afghan Transit Trade--- Import Policy, 2022---Notification---Retrospective effect--- Petitioner sought clearance of his consignments under Afghan Transit Trade on the plea that goods were imported prior to issuance of notification SRO No.1397(I)/2023 dated 3-10-2023---Validity---Transit Agreement of 1965 was replaced with the 2010 Agreement---Provision of notification SRO 151(I)/2004 dated 10-03-2004 still refers to Art. X of the Agreement (without specifying the year)---In the new Agreement of 2010 Art. X relates to and deals with Licensing of Transport Operators---This appeared to be a mistake on the part of Ministry of Commerce, that since year 2010, the notification SRO 151(I)/2004 dated 10-03-2004 was not amended accordingly---Even when notification SRO 1397(I)/2023 dated 03-10-2023 was issued, they again failed to take care of it and the same mistake still continued---Not withstanding that the Ministry of Commerce, Federal Government may have powers in terms of S.3(1) of the Import and Export Control Act, 1950, a ban could not be imposed unilaterally on the goods which had already been shipped and for which Bills of Lading were already issued---Such action by authorities was too harsh and also against the settled principle of protection to vested rights besides being impractical---Principle of vested right as enunciated by the Courts of law was applicable to the goods in dispute and the same were to be governed by the policy as in vogue prior to the issuance of SRO 1397(I)/2023 dated 03-10-2023---Constitutional petition was allowed accordingly.

Muhammad Amer Saeed v. Model Customs Collectorate of Customs 2016 PTD 2910; Haji Abdul Raziq Khan v. Federation of Pakistan 2014 SCMR 1821; Pakistan v. Aryan Petro Chemical Industries (Pvt) Ltd. 2003 SCMR 370; Messrs Baig Enterprises and Engineering v. Federation of Pakistan 2015 PTD 181; Mir Jeeand Badini v. Model Collectorate of Customs Appraisement 2020 PTD 213; Imad Samad v. Federation of Pakistan 2022 PTD 1860; Muhammad Umer v. Federation of Pakistan 2004 PTD 94; Messrs Najib Zarab Limited v. Government of Pakistan PLD 1993 Kar. 93; Federation of Pakistan v. Jamaluddin 1996 SCMR 727; Premier Systems (Pvt) Ltd. v. Federation of Pakistan 2018 PTD 861; Collector of Customs, v. Messrs New Shinwari Ltd 2023 SCMR 1972; Messrs Mustafa Impex v. The Government of Pakistan PLD 2016 SC 808; Haji Ihsan ullah v. Federation of Pakistan 2018 PTD 1419; Central Board of Revenue v. Messrs Kaghan Impex PLD 1989 SC 463; Kaghan Impex v. Central Board of Revenue and others PLD 1982 Lah. 608; Government of Pakistan through Ministry of Finance v Manzoor Brothers 1995 SCMR 516; Federation of Pakistan v. Muhammad Aslam 1986 SCMR 916; Federation of Pakistan v. Zamir Ahmad PLD 1975 SC 667; Federation of Pakistan v. Jamaluddin 1996 SCMR 727; Pakistan v. Salahuddin PLD 1991 SC 546 and Al-Samrez Enterprise v The Federation of Pakistan 1986 SCMR 1917 rel.

Khawaja Shamsul Islam and Imran Taj for the Petitioner.

Qazi Ayazuddin Qureshi, Assistant Attorney General and Muhammad Khalil Dogar for the Respondent No. 2.

Ms. Maria Qazi, Joint Secretary (FT-II), Ministry of Commerce Government of Pakistan.

Date of hearing: 21st December, 2023.

Judgment

Muhammad Junaid Ghaffar, J.---Through this Petition, the Petitioner has sought a declaration that the impugned Notifications bearing SRO No.1397(I)/2023 dated 3.10.2023, SRO No.1401(I)/2023 dated 7.10.2023, SRO No.1402(I)/2023 dated 7.10.2023, and SRO No.1380(I)/2023 dated 3.10.2023, whereby, certain restrictions have been imposed on goods meant for Transit to Afghanistan are not applicable on the seven consignments as detailed in Para 2 of the memo of the petition.

1. Learned Counsel for the Petitioner has contended that the seven consignments in question were imported much prior to the date of issuance of the impugned Notifications; that a vested right has already accrued in favour of the Petitioner; that the goods in question are for transit to Afghanistan and therefore, even otherwise, no such restrictions can be imposed by the Federal Government so as to regulate or ban the transit cargo; that clarification of Ministry of Commerce dated 17.11.2023 also supports the stance of the Petitioner; that Para 4 of the Import Policy Order notified vide SRO 545(I)/2022 dated 22.04.2022 already provides protection to the effect that any amendment made in the Import Policy Order shall not be applicable to such imports where either a bill lading or a letter of credit was issued or established prior to any such amendment; that SRO 151(I)/2004 dated 10.03.2004 which has been amended through impugned SRO 1397 is not at all relevant as presently, the transit trade between Pakistan and Afghanistan is regulated by a new Agreement dated 28.10.2010 whereas, the SRO in question is no more valid as it was issued in respect of the previous Agreement dated 2.3.1965 and therefore, in view of the law laid down by the Courts, the Petitioner is entitled for release of the seven consignments in question.

2. On the other hand, Mr. Khalil Ahmed Dogar representing the concerned Directorate of Afghan Transit Trade has opposed the Petition on the ground that insofar as the Customs Department is concerned, they are bound to comply the directions / orders of the Ministry of Commerce which were issued vide SRO 1397, whereas, except one consignment, the remaining six have arrived after the cut-of-date as notified by the Ministry of Commerce and the only remedy available to the Petitioner is by way of re-export of such goods. He has prayed for dismissal of instant Petition. Learned Assistant Attorney General along with Ms. Maria Qazi, Joint Secretary (FT-II), Ministry of Commerce Government of Pakistan has also opposed instant Petition on the ground that Para 4 of the Import Policy Order is not relevant inasmuch as the imports under Afghan Transit Trade Agreement are more specifically governed by Para 6(3) of the Import Policy Order and therefore, no protection can be claimed under Para 4 thereof. It has been further contended that insofar as letter dated 17.11.2023 issued by the Ministry of Commerce is concerned, it is only relevant for relaxation in the levy of processing fee and the procedural requirements; however, it is not applicable on those goods which have been banned vide SRO 1397. They have also prayed for dismissal of instant Petition.

3. We have heard all the learned Counsel as well as learned Assistant Attorney and Joint Secretary (FT-II), Ministry of Commerce Government of Pakistan and have perused the record. It appears that the Petitioner represents its various clients stationed in Afghanistan who have imported seven consignments containing various goods i.e. Tyres, Miscellaneous Cosmetic items and Textile Fabric as detailed in Para 2 of the memo of petition. At the same time, Respondent No.2 has also given details of the consignments along with their final remarks as to the status of the goods in question. They read as under: -

Para 2 of Memo of Petition

| | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | Sr. No. | Consignee | Bill of Lading No. | Container | GD Nos. & Date | Shipped on board | Arrival date | | 1 | Kamil Mazlumyar Trading Co | ALBO202308110 | TSSU5056368 | ITTK-AT-16223-30-09-2023 | 26-08-2023 | -03-10-2023 | | 2. | KAMIL Mazlumyar Trading Co | SLF230800027 | FFAU127209 | ITTK-AT-16253-30-09-2023 | 01-09-2023 | 03-10-2023 | | 3. | Bahar Noori LTD. | HDMUTAOZ23433700 | KOCU419975 | ITTK-AT-16376-30-10-2023. | 18-09-2023 | 23-08-2023 | | 4. | Bahar Noori Ltd. | EGLV143363741888 | EISU8369443 | ITTK-AT-16489-02-10-2023. | 18-09-2023 | 06-10-2023 | | 5. | Faizulhaq Achakzai son of Noorullah | OOLU411981 | CCLU740872 | ITTK-AT-16638-03-10-2023. | 16-09-2023 | 03-10-2023 | | 6. | Bahar Noori Ltd. | HDMUTAOZ27648200 | KOCU4375634 | ITTK-AT-16705-03-10-2023. | 23-08-2023 | 04-10-2023 | | 7. | Kamil Mazlumyar Trading Co. | MEDUIL373715 | MEDU8954688 | ITTK-AT-17170-07-10-2023. | 06-08-2023 | 08-09-2023 |

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Details by Respondent No.2

| | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | Sr. No. | GD No. | Description of goods | Vessel Name | Arrival Date | Port of discharge | Remarks | | 1 | ITTK-AT-16223-30-09-2023. | TYRES | TS NINGBO | 03.10.2023 | SOUTH ASIA PAKISTAN TERMINALS | Banned in terms of SRO 1397(I)/2023 dated 03.10.2023 | | 2. | ITTK-AT-16253-30-09-2023. | TYRES | VANCOUVER | 03.10.2023 | KARACHI INTERNATIONAL CONTAINER TERMINAL | Banned in terms of SRO 1397(I)/2023 dated 03.10.2023 | | 3. | ITTK-AT-16376-30-10-2023. | TYRES | HUYNDAI TOKYO | 04.10.2023 | SOUTH ASIA PAKISTAN TERMINALS | Banned in terms of SRO 1397(I)/2023 dated 03.10.2023 | | 4. | ITTK-AT-16489-02-10-2023. | MISC. COSMETICS ITEMS | SEATTLE BRDIGE | 06.10.2023 | KARACHI INTERNATIONAL CONTAINER TERMINAL | Banned in terms of SRO 1397(I)/2023 dated 03.10.2023 | | 5. | ITTK-AT-16638-03-10-2023. | TEXTILE FABRIC | VANCOUVER | 03.10.2023 | KARACHI INTERNATIONAL CONTAINER TERMINAL | Banned in terms of SRO 1397(I)/2023 dated 03.10.2023 | | 6. | ITTK-AT-16705-03-10-2023. | TYRES | HUYNDAI TOKYO | 04.10.2023 | SOUTH ASIA PAKISTAN TERMINALS | Banned in terms of SRO 1397(I)/2023 dated 03.10.2023 | | 7. | ITTK-AT-17170-07-10-2023. | TYRES | MSC SHAY | 08.09.2023 | SOUTH ASIA PAKISTAN TERMINALS | May be allowed release subject to furnishing bank guarantee in lieu of duty and taxes SRO 1402(I)/2023 dated 07.10.2023 |

1. From perusal of the aforesaid details, it appears that there are seven different consignments of various Petitioners and prior to the issuance of SRO 1397 by Ministry of Commerce, there was no impediment in the transit of subject goods, whereas, besides this ban, till the filing of this petition, the goods which are not banned under the Afghan Transit Policy, have been subjected to a processing fee at the rate of 10% ad valorem as per Notification issued by FBR bearing SRO No. 1380. At the same time, another SRO No. 1402 was issued whereby, certain amendments were made in the Customs Rules, 2001 governing the procedure of Afghan Transit goods and for the words "revolving insurance guarantee", the words "bank guarantee" was substituted. There were some other changes in the procedure regarding handling of Afghan Transit Trade Cargo as well. The said Notification further provided that it shall not be applicable on Afghan Transit goods declaration filed prior to issuance of the Notification dated 07.10.2023. Thereafter, on 27.11.2023 two further SROs bearing No. 1711(I)/2023 and 1712(I)/2023 both dated 27.11.2023 were issued making certain amendments in SRO No. 1380 and 1402 giving further relaxation, whereby, it has been notified that these notifications shall not be applicable to Afghan Transit Trade Cargo arrived at Pakistani Ports as determined from the berthing date of vessel during the period commencing on the 3rd day of October, 2023 and ending on the 16th day of November, 2023, and shall apply thereafter. Since the seven consignments as mentioned in the above table(s), are protected as per the amending SRO's dated 27.11.2023, therefore, for the present purposes, the only issue left for this Court to decide is the applicability and implication of SRO 1397 issued by the Ministry of Commerce. It reads as under: -

Government of Pakistan

Ministry of Commerce

2024 M L D 915

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Syed Mansoor Ali Shah----Appellant

Versus

The State----Respondent

Criminal Appeal No. S-23 of 2021, decided on 21st November, 2023.

Sindh Arms Act (V of 2013)---

----S.23(1)(a)---Possession of illicit weapon---Appreciation of evidence---Main case and offshoot case---Acquittal in main case---Effect---Prosecution case was that a pistol 30-bore was recovered on the pointation of accused---Record showed that the first mashir of alleged recovery in his evidence deposed that on the alleged date viz., 29.11.2017 police obtained his signatures on white unwritten papers---Said witness was declared hostile and even in cross-examination by the State Counsel he denied either accompanying the complainant on 29.11.2017 or production of alleged pistol by the accused and preparation of memo of recover---Recovery witness denied that second mashir had also accompanied him and the police along with accused to the place of alleged recovery---In such circumstances, the report of Ballistics Expert, even though in positive, could not be believed; rather, the very recovery of offensive weapon became highly doubtful---Instant case was offshoot of main crime registered under S.302, P.P.C, wherein the accused had been acquitted by disbelieving the evidence; the same prosecution witnesses being Recovery Officer and the mashir; hence, propriety of law demanded, accused should be acquitted from the charge of instant case---When an accused had been acquitted in the main case, he would be entitled to acquittal in a case which was offshoot of the main case---Appeal was allowed, in circumstances.

Manjhi v. The State PLD 1996 Karachi 345 ref.

Yasir Chaudhry v. The State 2012 MLD 1315 rel.

Athar Abbas Solangi for Appellant.

Khalil Ahmed Melto, Assistant Prosecutor General for the State.

Date of hearing: 20th November, 2023.

Judgment

Muhammad Saleem Jessar, J.---Through this appeal, Appellant has assailed Judgment dated 03.04.2021, handed down by learned I-Additional Sessions Judge, Larkana, in Sessions Case No.680 / 2017 (re: The State v. Syed Mansoor Ali), being outcome of FIR No.118/2017, registered at Police Station Darri, Larkana), whereby the appellant was convicted for offence under Section 23(1)(a) of Sindh Arms Act 2013 and sentenced to undergo R.I. for ten (10) years, and to pay fine of Rs.50,000/-. In case of default, the appellant was directed to undergo S.I. for two months more. The appellant, however, was extended benefit of Section 382-B, Cr.P.C.

1. According to the case of prosecution, on 29.11.2017, the appellant being already in custody and during interrogation in connection with the main case vide Crime No.81/2017 of PS Darri, under section 302, P.P.C., having agreed voluntarily before ASI Ashraf Ali Narejo, led the police party headed by said ASI and two private mashirs to an open plot situated in Madina Colony, Larkana on Baqapur road and after digging earth took out and produced a black colour shopper, wherein a 30-bore pistol with erased number, therefore, he was booked in this case by the complainant ASI Ashraf Ali Narejo on behalf of State.

2. A formal charge was framed against the accused, to which he pleaded 'not guilty' and claimed to be tried vide his plea.

3. In order to prove its case, prosecution examined and relied upon the evidence of PW-1 eye-witness/mashir Kashif Hussain, PW-2 complainant ASI Ashraf Ali and PW-3 Amjad Ali, second mashir.

4. In his statement under section 342, Cr.P.C, the appellant/ accused denied the prosecution allegations and claimed to be innocent. However, neither he examined himself on oath nor produced any witness in his defence.

5. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellant / accused, as stated above. Against said judgment, the appellant has preferred instant appeal.

6. I have heard learned Counsel for the appellant as well as learned APG appearing for the State and have perused the material available on the record.

7. Learned counsel for the appellant submitted that private mashir of alleged recovery, namely, Kashif Hussain in his evidence before the trial Court did not support the case of prosecution, therefore, he was declared hostile and the prosecution then examined second mashir Amjad Ali. He further submitted that the weapon shown recovered from the possession of the appellant was in fact foisted upon the appellant at the instance of complainant of main murder case only with a view to strengthen the said case. He contended that instant case is the offshoot of main Crime vide FIR No.81/2017 registered at same police station, under Section 302, P.P.C., in which case he has been acquitted of the charge. He further submits that instant case, being its offshoot, the appellant may also be acquitted of the charge in the light of dicta laid down by this Court in the case of Manjhi v. The State (PLD 1996 Karachi 345).

8. Learned Assistant Prosecutor General opposed the appeal, on the ground(s) that the offensive weapon was recovered on the pointation of the appellant. He contended that prosecution has successfully proved the charge against the appellant, hence, prayed for dismissal of the appeal.

9. I have gone through R&Ps of the case and the impugned judgment dated 03.04.2021 passed by the trial Court.

10. The first mashir of alleged recovery, namely, Kashif Hussain in his evidence deposed that on the alleged date viz., 29.11.2017 he was available in the hospital along with his brother Naqash Ali and on receiving phone call from PS Waleed he went there, where police obtained his signatures on white unwritten papers. He was declared hostile and even in cross-examination by the learned State Counsel he denied to have either accompanied the complainant ASI Ashraf Ali on 29.11.2017 or production of alleged pistol by the appellant and preparation of memo of recovery. He also denied that second mashir Amjad Ali had also accompanied him and the police along with appellant to the place of alleged recovery. In such circumstances, the report of Ballistics Expert, even though in positive, cannot be believed; rather, the very recovery of offensive weapon becomes highly doubtful.

11. As stated above, instant case is offshoot of main Crime No.81/2017 of PS Darri, under section 302, P.P.C., wherein the appellant has been acquitted by disbelieving the evidence same prosecution witnesses being recovery officer and the mashir; hence, propriety of law demands, appellant should be acquitted from the charge of instant case.

2024 M L D 934

[Sindh]

Before Muhammad Saleem Jessar, J

Abdul Nabi Buriro----Applicant

Versus

The State----Respondents

Criminal Bail Application No. S-505 of 2023, decided on 16th February, 2024.

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

----S. 497---Penal Code (XLV of 1860), Ss. 452, 365-B & 34---House-trespass after preparation for hurt, assault or wrongful restraint, kidnapping, abducting or inducing woman to compel for marriage etc, common intention---Bail, grant of---Further inquiry---From tentative assessment of the record it appeared that there was delay of about eleven days in lodging of the FIR.---Delay fell within the ambit of deliberation and afterthought, therefore, it was always considered to be fatal for the prosecution case---As per record, the parties already had antagonism/rivalry with each other---Per contents of the FIR., sister of complainant was abducted by accused persons with intent to commit 'zina' with her, but the alleged abductee while recording her statement in terms of S.164, Cr.P.C., had not stated that she was subjected to "zina" by any of the accused---Abductee was not recovered from possession of any accused including present applicant---All these facts and circumstances made the case of applicant as one of further enquiry as envisaged under subsection (2) of S.497, Cr.P.C., entitling him to grant of concession of discretionary relief of bail---Bail application was allowed, in circumstances.

Zia Jamali v. The State reported in 2022 MLD 1078; Muhammad Younas and another v. Muhammad Hanif Khan and another 2015 YLR 1161 and Farman Ali v. Fazal Rabi and another 2015 YLR 1777 ref.

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

----Ss. 497 & 498---Bail---Observations made in bail order are tentative in nature and should not influence the Trial Court while deciding the case of applicant on merits.

Zafar Ali Malghani for the Applicant.

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

Asif Ali Abdul Razzak Soomro for the Complainant.

Date of hearing: 15th January, 2024.

Order

Muhammad Saleem Jessar, J.---Through captioned bail application, applicant Abdul Nabi son of Abdul Raheem Buriro has sought for post arrest bail in the case emanating from FIR No. 101 of 2023, registered at P.S A-Section Thull (District Jacobabad), for offence punishable under Sections 452, 365-B, 34 P.P.C and 3 TIP Act; after his plea for post arrest bail was declined by learned 1st Additional Sessions Judge, Jacobabad, by dismissing his application vide Order dated 09.08.2023.

1. The case of prosecution as described in para 2 of the impugned order passed by learned trial Court, reads as under:

"The facts of the prosecution case as per FIR lodged by complainant Rasool Bux Dayo on 28.06.2023 at 0010 hours are that on 17.06.2023 at 04.00 a.m. applicant/ accused Abdul Nabi along with co-accused Nizamuddin, Shoukat Ali and one unknown culprit having T.T pistols entered into the house of complainant and on force of weapons, they abducted Mst. Shumaila, the sister of complainant with intention to commit 'zina' with her."

1. I have heard learned counsel for the applicant as well as learned Advocate for complainant and learned D.P.G. appearing for the State and perused the material available on record.

2. The learned counsel for the applicant has mainly contended that the applicant/ accused is innocent and has falsely been implicated in this case by the police; that FIR is delayed for about 12-days without furnishing plausible explanation; that parties are already on strange terms as prior to this FIR another FIR vide Crime No.83 of 2023 was also registered by one Najam, a close relative of present complainant against applicant party, but such case was disposed of under cancelled class. Learned counsel hardly pressed on the ground that the alleged abdcutee Mst. Shumaila in her statement under Section 164 Cr.P.C has not leveled allegation of committing 'zina' with her by any of the accused including present applicant and that she was not recovered from possession of any of the accused. He placed on record certified true copy of 164 Cr.P.C statement and mashirnama of recovery of Shumaila. In support of his case, the learned counsel placed his reliance upon case of Zia Jamali v. The State reported in 2022 MLD 1078, Muhammad Younas and another v. Muhammad Hanif Khan and another (2015 YLR 1161) and Farman Ali v. Fazal Rabi and another (2015 YLR 1777). Lastly, learned counsel prayed for grant of bail in favour of the applicant.

2024 M L D 968

[Sindh]

Before Irfan Saadat Khan and Arshad Hussain Khan, JJ

Province of Sindh through Secretary Transport----Appellant

Versus

Rahim Ali Palari and 3 others----Respondents

High Court Appeal No. 276 of 2019, decided on 7th March, 2023.

Fatal Accidents Act (XIII of 1855)---

----S.1---Suit for recovery of damages---Mark up, calculation of---Quantum of compensation---Appellant/Provincial Government was aggrieved of compensation awarded to respondents/legal heirs of deceased who lost his life in a road accident---Plea raised by appellant / Provincial Government was that personal expenses of deceased were not deducted from the amount of damages and markup was to be given from date of decree---Validity---No accurate breakup in respect of amount of compensation / damages claimed can either be worked out or calculated but it is always a guess work, which is based upon a number of facts which include age of deceased, amount earned by him at the time of his death, his life expectancy, number of persons of whom he was the bread earner, etc.---Such working is always a guess work based on the facts of each case---Deceased was only 26 years of age at the time of his death and it was assumed that had he not died, he would have lived upto 72 years and thereafter keeping in view such factors compensation was worked out---Division Bench of High Court declined to interfere in judgment and decree passed by Judge in Chambers of High Court---Intra Court Appeal was dismissed, in circumstances.

Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others 2015 SCMR 1698; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Government of Pakistan v. Arif and others 2001 SCMR 785; Pakistan Railway v. Abdul Haqique and others 1991 SCMR 657; Mst. Feroza Wajid v. Government of Sindh and others 2006 MLD 786; National Logistic Cell v. Irfan Khan and others 2015 SCMR 1406; Mst. Abida Bashir and 4 others v. Messrs Blue Lines Airconditioned Luxury Coach Services, Karachi and 6 others PLD 1996 Karachi 153; The Punjab Road Transport Board and another v. Mst. Naziran Bibi and another PLD 1983 SC 340; Annual Survey of Indian Law Volume (XVI)-1980; Punjab Road Transport Corporation v. Zahida Afzal and others 2006 SCMR 207; Karachi Transport Corporation v. Latif-ur-Rehman and others 1993 SCMR 1149; Mir Hassan v. Master Hammad through his next friend and another 2009 MLD 1443; Islamic Republic of Pakistan through Secretary, Ministry of Railways and others v. Abdul Wahid and others 2011 SCMR 1836; Javed Iqbal v. Province of West Pakistan and others 1992 CLC 2369; Federation of Pakistan through Secretary Railways and another v. Hafiza Malika Khatoon Begum and others 1996 SCMR 406; Muhammad Noor Alam v. Zair Hussain and 3 others 1988 MLD 1122; Rajasthan State Road Transport Corporation v. Jhami Bai Kanhiyalal and others AIR 1987 Rajasthan) 68; Muhammad Younus Khan 3 others v. Karachi Road Transport Corporation and another 1984 CLC 2830; Khazani V. Sobaran Singh and others 1986 ACC 288; Pakistan Railways through its General Manager v. Javed Iqbal 1995 SCMR 446; Islamic Republic of Pakistan through Secretary, Ministry of Railways and others v. Abdul Wahid and others 2011 SCMR 1836; Rukhsana Parveen and 4 others v. Islamic Republic of Pakistan through Secretary, Ministry of Railways, Islamabad and 3 others 2003 MLD 572; Islamic Republic of Pakistan through Secretary, Ministry of Railways, Islamabad and 3 others v. Rukhsana Parveen and 4 others 2005 MLD 335; Raja Muhammad Sadiq and 9 others v. WAPDA through Chairman, WAPDA House, Lahore and 3 others PLD 2003 SC 290; Mst. Salma Abbasi and another v. Ahmed Suleman and 2 others 1981 CLC 462; Muhammad Yakoob v. Muhammad Ishaque 1980 CLC 2056; Javaid Iqbal v. Abdul Aziz and another PLD 2006 SC 66; Pakistan Railways through its General Manager v. Javed Iqbal 1995 SCMR 446; Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6; Islamic Republic of Pakistan through Secretary, Ministry of Railways and others v. Abdul Wahid and others 2011 SCMR 1836; Muhammad Sarwar v. Government of Sindh through Secretary and others PLD 2018 Sindh 360; Samar Gul v. Central Government and others PLD 1986 SC 35; Master Abdul Basit and another v. Dr. Saeeda Anwar and another PLD 2011 Karachi 117; Sufi Muhammad Ishaque V. The Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737; Chairman, Railway Board, Pakistan Western Railways, Lahore and another v. Naseer Ahmed and 3 others PLD 1988 Lah. 652; Shamsul Hassan and 6 others v. Karachi Transport Corporation through Managing Director and 2 others 2001 CLC 942; Muhammad Athar Hussain and another v. Trustees of the Port of Karachi through Chairman, Karachi Port Trust Head Office Building, Eduljee Dinshaw Road, Karachi 1988 CLC 633; Trustees of Port of Karachi v. Athar Hussain and another 2003 CLC 215; Mst. Irfana v. Federal Government of Pakistan through Secretary, Ministry of Defence, Islamabad and 3 others 2001 CLC 928; Islamic Republic of Pakistan through Ministry of Defence and others v. Numair Ahmed and 2 others 2015 MLD 1401 and Karachi Transport Corporation and another v. Latif-ur-Rehman and 6 others 1991 MLD 1471 ref.

Zeeshan Adhi, Additional Advocate General Sindh (AAG) for Appellant.

Nasir Maqsood and Farrukh Usman for Respondents.

Dates of hearing: 6th and 15th February, 2023.

Judgment

IRFAN SAADAT KHAN, J.---This High Court Appeal (HCA) has been filed impugning the judgment dated 14.03.2019 given by the learned Single Judge in Suit No.421 of 1991.

1. Briefly stated, the facts of the case are that the legal heirs of the deceased, namely, Muhammad Anwar Palari (hereinafter referred to as “the deceased”) died in a traffic accident which took place on 25.12.1990. It is the claim of the legal heirs of the deceased, who are respondents in the present HCA and plaintiffs in the Suit, that on the fateful day at about 1230 hours the proforma respondent No.2, who is an employee of the respondent No.1, was driving bus No.965232 on Superhighway which hit pickup bearing registration No.LS-9970 near Bridge Poultry Farm, resulting in the death of the deceased and causing serious injuries to the driver of the Suzuki, namely, Tanveer Ali. The driver of the said bus subsequently was arrested and thereafter FIR bearing No.319 of 1990 dated 25.01.1990 was registered at Gadap P.S. Thereafter Suit bearing No.421 of 1991 was filed, wherein, after completing the legal formalities, which included issuance of summons, calling written statements etc. from the defendants of the suit, as many as eight issues were framed on 03.11.1991 and thereafter the learned Singe Judge in the instant suit decided issue No.1 in Negative and rest of the issues from 2 to 7 in „Affirmative. and decreed the suit in favour of the plaintiffs by observing that they are entitled for damages in the sum of Rs.8,190,000/-. The learned Single Judge further awarded Rs.1,000,000/- towards loss of consortium with a total amount of decree at Rs.9.1 Million with 10% markup per annum from the date of institution of suit till realization of the amount. It is against this judgment passed by the learned Single Judge that the present HCA has been filed.

2. Mr. Zeeshan Adhi, AAG has appeared on behalf of the appellant and stated that the learned Single Judge has travelled beyond the pleadings by awarding a sum of Rs.9.1 Million as opposed to the claim of Rs.5 Million. He stated that the order of the learned Single Judge is liable to be set aside as he has granted the relief which is beyond the pleadings. To support this argument, the learned AAG has relied upon the following decisions:

i) Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others (2015 SCMR 1698)

ii) Binyameen and 3 others v. Chaudhry Hakim and another (1996 SCMR 336)

1. Learned AAG further stated that the learned Single Judge was also not justified in awarding the interest from the date of institution of the suit rather than from the date of the decree which, according to him, is not in accordance with law and in support thereof has placed reliance on the following decisions:

i) Government of Pakistan v. Arif and others (2001 SCMR 785)

ii) Pakistan Railway v. Abdul Haqique and others (1991 SCMR 657)

1. Learned AAG further stated that the learned Single Judge has also not taken into consideration that the negligence, if any, was contributory and not a composite or single or isolated negligence. He stated that apart from the driver of the bus the driver of the Suzuki van was also at fault as it was the driver of the Suzuki who brought the Suzuki on the highway in a rash and negligent manner with the result that it collided with the bus, which ultimately resulted in death of the deceased. He, therefore, stated that simply holding the driver of the bus accountable and responsible was not justified as it was the driver of the Suzuki also who was equally responsible for this fatal, which resulted in death of the deceased and in his view the incident was contributory and not composite or isolated. In support thereof the learned AAG has placed reliance on the following decisions:

i) Mst. Feroza Wajid v. Government of Sindh and others (2006 MLD 786)

ii) National Logistic Cell v. Irfan Khan and others (2015 SCMR 1406)

1. Learned AAG next stated that the learned Single Judge was not justified in not deducting the personal expenses of the deceased from the damages awarded. He stated that no doubt compensation is awarded on the basis of life expectancy of the deceased but in his view the personal expenses should also be deducted from the amount of damages and, according to him, since the award was defective on this aspect, hence the same is liable to be set aside for recalculating the amount of compensation awarded to the deceased. In support thereof he has placed reliance on the decision in the case of Mst. Abida Bashir and 4 others v. Messrs Blue Lines Airconditioned Luxury Coach Services, Karachi and 6 others (PLD 1996 Karachi 153).

2. The learned AAG next stated that the learned Single Judge was not justified in calculating the damages on the basis of a projected income of Rs.15000/-, whereas according to him in the year 1991 the minimum wage was Rs.480/- hence, according to him, the learned Single Judge ought to have calculated the amount of compensation at that rate and not at Rs.15000/-, as done by the learned Single Judge.

3. M/s. Nasir Maqsood and Farrukh Usman, Advocates have appeared on behalf of the private Respondents and stated that it is a sorry state of affairs that even after passage of 32 years the Respondents have not received a single penny and are suffering badly. They stated that it has been held in a number of decisions given by the Hon.ble Supreme Court of Pakistan that matters pertaining to fatal accident have to be settled within shortest possible time. In support of this contention the learned counsel have placed reliance on the following decision reported as:-

i) The Punjab Road Transport Board and another v. Mst. Naziran Bibi and another (PLD 1983 SC 340)

ii) Annual Survey of Indian Law Volume (XVI)-1980

iii) Punjab Road Transport Corporation v. Zahida Afzal and others (2006 SCMR 207)

iv) Karachi Transport Corporation v. Latif-ur-Rehman and others (1993 SCMR 1149).

1. While arguing the case on merits learned counsel stated that this is a case of composite negligence where the driver of the bus while driving in a rash and negligent manner hit Suzuki van which resulted in the death of the deceased. They stated that in view of the facts and circumstances of the case the Respondents are fully entitled to be compensated on account of the negligence caused by the driver and have placed reliance on the following decisions:-

i) Mir Hassan v. Master Hammad through is next friend and another (2009 MLD 1443)

ii) Islamic Republic of Pakistan through Secretary, Ministry of Railways and others v. Abdul Wahid and others (2011 SCMR 1836)

iii) Javed Iqbal v. Province of West Pakistan and others (1992 CLC 2369)

iv) Federation of Pakistan through Secretary Railways and another v. Hafiza Malika Khatoon Begum and others (1996 SCMR 406)

v) Muhammad Noor Alam v. Zair Hussain and 3 others (1988 MLD 1122)

vi) Rajasthan State Road Transport Corporation v. Jhami Bai Kanhiyalal and others (AIR 1987 (Rajasthan) 68)

vii) Muhammad Younus Khan 3 others v. Karachi Road Transport Corporation and another (1984 CLC 2830)

1. Learned counsel also invited our attention to a decision of the Indian High Court and stated that the Court has taken staunch attitude in case of delay in compensation or the time wasted in litigations in Re: Khazani V. Sobaran Singh and others (1986 ACC 288).

2. Replying to the objections raised by the learned counsel appearing for the Department that markup if any was to be given from the date of decree instead of date of institution, they stated that a Full Bench of the Hon’ble Supreme Court in the case reported as 2012 CLC 6 held by a majority view that interest/markup was to be given from the date of filing the suit till recovery of the entire amount and not from the date of the decree. Learned counsel have also placed reliance on the following decisions:-

i) Pakistan Railways through its General Manager v. Javed Iqbal (1995 SCMR 446)

ii). Islamic Republic of Pakistan through Secretary, Ministry of Railways and others v. Abdul Wahid and others (2011 SCMR 1836)

iii) Rukhsana Parveen and 4 others v. Islamic Republic of Pakistan through Secretary, Ministry of Railways, Islamabad and 3 others (2003 MLD 572)

iv) Islamic Republic of Pakistan through Secretary, Ministry of Railways, Islamabad and 3 others v. Rukhsana Parveen and 4 others (2005 MLD 335)

v) Raja Muhammad Sadiq and 9 others v. WAPDA through Chairman, WAPDA House, Lahore and 3 others (PLD 2003 SC 290)

1. Learned counsel stated that it was always open for the Court to grant the relief as deemed necessary as no Court is subservient to the prayer clause but looking to the facts and circumstances of the case relief could be molded, enhanced or reduced, as deemed necessary by the Court. They stated that a relief, if not specifically prayed, can be granted when it is not inconsistent with the case of a party. They stated that the Court is fully empowered under the law to grant the relief which it deems fit and necessary looking to the peculiar facts and circumstances of the case in accordance with law. In this regard learned counsel has placed reliance on the following decisions.

i) Mst. Salma Abbasi and another v. Ahmed Suleman and 2 others (1981 CLC 462)

ii) Muhammad Yakoob v. Muhammad Ishaque (1980 CLC 2056)

iii) Javaid Iqbal v. Abdul Aziz and another (PLD 2006 SC 66)

iv) Pakistan Railways through its General Manager v. Javed Iqbal (1995 SCMR 446)

v) Abdul Majeed Khan v. Tawseen Abdul Haleem and others (2012 CLD 6)

vi) Islamic Republic of Pakistan through Secretary, Ministry of Railways and others v. Abdul Wahid and others (2011 SCMR 1836)

vii) Muhammad Sarwar v. Government of Sindh through Secretary and others (PLD 2018 Sindh 360) (approved in HCA 369 of 2017)

viii) Samar Gul v. Central Government and others (PLD 1986 SC 35)

ix) Master Abdul Basit and another v. Dr. Saeeda Anwar and another (PLD 2011 Karachi 117)

x) Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor (PLD 1996 SC 737)

xi) Chairman, Railway Board, Pakistan Western Railways, Lahore and another v. Naseer Ahmed and 3 others (PLD 1988 Lah. 652)

xii) Shamsul Hassan and 6 others v. Karachi Transport Corporation through Managing Director and 2 others (2001 CLC 942)

xiii) Muhammad Athar Hussain and another v. Trustees of the Port of Karachi through Chairman, Karachi Port Trust Head Office Building, Eduljee Dinshaw Road, Karachi (1988 CLC 633)

xiv) Trustees of Port of Karachi v. Athar Hussain and another (2003 CLC 215)

xv) Mst. Irfana v. Federal Government of Pakistan through Secretary, Ministry of Defence, Islamabad and 3 others (2001 CLC 928)

xvi) Islamic Republic of Pakistan through Ministry of Defence and others v. Numair Ahmed and 2 others (2015 MLD 1401)

xvii) Karachi Transport Corporation and another v. Latif-ur-Rehman and 6 others (1991 MLD 1471).

1. Learned counsel also laid emphasis on Adl and Ehsan. The learned counsel also stated that so far as the damages are concerned though there is no yardstick for calculating the same but in fatal accident cases the compensation is always calculated by looking at the life expectancy of the deceased and the amount which would have been earned by the deceased, in case he remain alive. Learned counsel stated that in view of these facts the learned Single Judge was quite justified in granting compensation, as mentioned in para-23 of the order.

2. Learned counsel next stated that the claim of the learned counsel appearing for the appellant that personal expenses are to be deducted is also not correct as the mechanism of calculating is given under the law and hence the submission of the learned counsel appearing for the Department for deduction of the personal expenses is incorrect and has to be ignored. In the end, the learned counsel stated that the order passed by the learned Single Judge is in accordance with law and the same may be upheld and the Respondents may be directed to pay the amount of compensation, as worked out in the order vide para-23, without any delay and this HCA may be dismissed by imposing heavy cost on the appellant.

3. While giving the rebuttal, the learned AAG stated that the decisions relied upon by the learned counsel appearing for the respondents are quite distinguishable. He stated that though he has sympathy with the victim and his family however submits that the amount of compensation awarded by the learned Single Judge since was not proper therefore the same needs to be drastically revised and the order of the learned Single Judge in his view may be set aside on the basis of the facts mentioned by him.

4. We have heard all the learned counsel at considerable length and have also perused the record and the decisions relied upon by them.

5. The argument of learned AAG could be summarized as under:

i) That since there was a contributory negligence hence the damages have to be reduced.

ii) That the relief given was beyond the pleadings hence the order of the learned Single Judge needs to be set aside.

iii) That the markup/interest has to be given from the date of decree and not from the date of institution of the suit.

iv) That while calculating the compensation personal expenses have to be deducted and the projected monthly income of the deceased worked out by the learned Single Judge was quite excessive.

1. We will take up each issue separately. So far as there was a contributory negligence is concerned, suffice is to observe that the employer is always considered to be a part of the composite negligence caused by its employee and either the driver or any other employee working with any organization if causes negligence due to which accident occurs then in such like circumstances the employer is also held accountable in respect of the negligence caused by its that employee and in case the said employee is found guilty of causing damage in any manner, the employer always is under the obligation to compensate the unfortunate family in a speedy manner without prolonging the matter so as to release the agony of the grieved family. Therefore, we disagree with the contention raised by the learned AAG that in the instant matter the negligence was a contributory negligence, whereas in our view the negligence was a composite negligence. It is also a settled proposition of law that the approach of the Courts in granting compensation should, in our view, be to a certain extent liberal rather than pedantic, as no amount or money could fill in the gap or vacuum created in the case of a death of a person being faced by the family. We are also mindful of the fact that no yardstick or actual quantification of the amount of the loss/compensation could be worked out and it is always on the basis of some estimate or guess work that the amount of compensation is worked out based on the formula of life expectancy. In such like matters the responsibility of the government is to compensate the grieved family not only in a timely manner but also to avoid unnecessary/frivolous litigation so that the grieved family may be compensated in a timely manner. We agree with Mr. Nasir Maqsood that this is really a sorry state of affairs that in the present matter even after passage of more than 32 years not a single penny has been given to a grieved family and once onus/charge with regard to an accident is proved by the claimant then in such like cases it is incumbent upon the government, in case the person causing the accident belongs to their organization, to compensate the aggrieved family promptly without wasting much time. The amount of compensation given cannot be a solatium of the loss with which the family had passed but to a certain extent give them some lease to continue their life along with their pain and suffering and get some pecuniary benefit from the compensation so that the grieved family could live a simple life without knocking the doors of others for any monitory help. In the case of Abdul Wahid, quoted supra, the Supreme Court of Pakistan did not absolve the Railway from the negligence caused by its employee on the ground of contributory negligence and observed that Railway was liable to pay the compensation and damages as employer in such circumstance is vicariously liable for the acts or omissions and negligence of its employee. Hence on this aspect we do not agree with the learned AAG that the negligence is a contributory negligence. Moreover the decision relied upon by the learned AAG is found to be totally distinguishable from the facts obtaining in the instant matter.

2. Apropos the aspect of granting relief beyond the pleadings is concerned that when the respondents/plaintiffs in the suit claimed the compensation to the extent of Rs.5 Million only, the learned Single Judge was not justified in awarding the compensation to the extent of Rs.8.1 Million and Rs.1 Million towards loss of consortium. It is a settled principle of law that it is always open to the Courts to mold the relief as and when required in respect of that particular case. No Court, in our view, is subservient to the prayer clause made in a matter and by looing to the facts and circumstances of that matter can enhance or reduce the claim, as the circumstances of that matter warrants. In the instant matter also, through a detailed and comprehensive order, the learned Single Judge came to the conclusion that this is a fit case of negligence on the part of the appellant and thereafter worked out the amount of compensation in Para 19 of his order, keeping in view the various judgments cited before him. Moreover it could not be said that the learned Single Judge, while granting the amount of compensation, has not considered the wage limit of that period, whereas the learned Single Judge has categorically relied upon the notifications, as per Sindh Minimum Wages Act, issued by the Labour and Human Resources Department and thereafter worked out the compensation. It is also noted that though the learned Single Judge was of the view that the amount of wage is Rs.16,200/- but kept the figure of the compensation at a lower amount of Rs.15000/- and thereafter worked out the compensation for a period of more than 26 years. It may also be noted that as per Order VII Rule 7 of the C.P.C. it is always open to the Court to grant a relief as it may think “just and proper” and in our view the power of the Court in this regard could neither be curtailed nor diminished as the Courts, in our view, are not under the legal obligation or have such a narrow approach to limit their powers to the extent of the relief claimed. The Courts, in our view, are fully empowered to either enhance or reduce the relief claimed by any person subject to the circumstances of each case. However one thing which should be kept in view that the relief granted should not be inconsistent with the case of the party. However in the instant matter the relief granted is worked out on the basis of a formula described by the Act hence, in our view, by no stretch of imagination could be considered to be inconsistent. Moreover, to foster the justice the powers of the Court can neither be curtailed nor controlled in respect of the procedural laws. Thus on this aspect also we do not agree with the contention of the learned AAG. The decisions relied upon by him are thus found to be totally distinguishable from the facts obtaining in the instant matter. We, therefore reject this argument of the learned AAG as well.

3. So far as the issue that what should be the date of grant of interest on the compensation is concerned, we are of the view that this issue has already been laid at rest by the Supreme Court of Pakistan (noted above) in its various judgments that compensation has to be awarded from the date of institution of the suit and not from the date of the decree.

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1. So far as working out the personal expenses is concerned, it has already been observed above that there is no yardstick of calculating the markup and the same is always to be done as a rule of thumb, as no accurate breakup in respect of the amount of compensation/damages claimed could either be worked out or calculated but it is always guess work, which is based upon keeping in view a number of factors which include the age of the deceased, the amount earned by him at the time of his death, his life expectancy, number of persons of whom he was the bread earner etc. and this working is always a guess work based on the facts of each case. In the instant matter also the deceased was only 26 years of age at the time of his death and it was assumed that had he not died he would have lived upto 72 years and thereafter keeping in view these factors compensation was worked out. As noted earlier, it is always a guess work and no yardstick or fixed formula can be fixed in respect of the amount of compensation and the only factor which the Court is required to do is to determine a fair compensation, if it is found that the other party was negligent in causing death of a person and the most important factor which is to be kept in mind is with regard to timely grant of compensation awarded to the grieved family.

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1. In view of the above discussion, we do not find any legal infirmity or illegality/irregularity in the order passed by the learned Single Judge, which is hereby upheld and consequently the instant HCA, along with all the listed/pending applications, stands dismissed. The appellants are directed to compensate the respondents along with the markup/interest etc. from the date of institution of the suit till its final payment within a period of two months. time from the date of this order.

MH/P-2/Sindh Appeal dismissed.

2024 M L D 1010

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro, J

Saalim Kalo---Appellant

Versus

The State---Respondent

Crimianl Jail Appeal No. S-85 of 2021, decided on 30th November, 2023.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-A(i), 337-A(ii), 337-F(iii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah-hashimah, common intention---Appreciation of evidence---Sentence, reduction in---Accused were charged that they assaulted the complainant party, due to which father of the complainant died whereas complainant and his brother became injured---Previous dispute was the motive behind the occurrence---Record showed that three eye-witnesses furnished ocular account of the incident---None of them had stated that accused had in any manner facilitated the main absconding accused in committing murder of deceased---None of the witnesses had hinted in evidence that accused and other two accused had come with a common intention to commit murder of the deceased---All of them had stated that they were present on their lands and cutting grass, when accused and other accused arrived there and asked them as to why they were cutting grass, given the dispute between them over agricultural land, and then they started inflicting blows to them---From such evidence, it was apparent that every accused acted independently, and did not facilitate each other in inflicting blows to their victims, nor instigated others to commit the crime and murder the deceased ultimately---No reason existed for the accused party to target the deceased particularly and murder him which was suggestive of the fact that it was a free fight between the parties---Record showed that the incident took place on the lands of accused party and not on the lands of complainant party, in which accused himself was injured, as was evident from the evidence of Medico-Legal Officer---There was no suggestion of preplanning by the accused party, and incident took place when the complainant party decided to accost the accused party when they were present on their lands---In such circumstances, when the confidence inspiring evidence to establish sharing of common intention by the accused was lacking, the accused could not be held vicariously liable for murder of the deceased---Accused, in the circumstances, would be held responsible only for injuries inflicted by him on victim---As per medical evidence, victim had received five injuries---Maximum punishment for injuries falling under S.337-A(ii), P.P.C., was 05 years---Jail roll of the accused reflected that he had remained in jail substantially for 05 years, 08 months and 11 days; had earned remissions of 07 years, 07 months and 19 days; his unexpired portion of sentence was 12 years and 11 months including sentence for failure to pay compensation---Accused, therefore, had already undergone 13 years and 04 months, although the maximum punishment under S.324, P.P.C., was up to 10 years---Appeal was dismissed, however, the conviction and sentence awarded to accused under Ss.302, 34, P.P.C. were set aside, and the conviction and sentence under Ss.324, 337-A(i) and 337-A(ii), P.P.C. were maintained and converted into the period already undergone by him.

Sardar Akbar F. Ujjan and Mahmood Ahmad Ujjan for appellant.

Shafi Muhammad Mahar, Deputy Prosecutor Genera for the State.

Date of hearing: 27th November, 2023.

Judgment

Muhammad Iqbal Kalhoro, J.---This appeal is filed by appellant Saalim son of Muhammad Siddique Kalo, challenging judgment dated 06.10.2021, passed by learned 1st Additional Sessions Judge, Naushahro Feroze in Sessions Case No.170 of 2018 (Re: The State v. Saalim Kalo and another), arising out of Crime No.01 of 2018, registered at Police Station Tagar, District Naushahro Feroze, under Sections 302, 324, 337-A(i), 337-A(ii), 337-F(iii), 34 P.P.C., whereby he has been convicted and sentenced as under:

· For offence under section 302(b) read with 34 P.P.C. to suffer R.I for life as Ta'zir and to pay Rs.2,00,000/- (two lac) as compensation under section 544-A Cr.P.C. to the legal heirs of deceased with fine of Rs.50,000/- (Fifty thousand), in case of default in payment of fine he shall undergo SI for six months more.

· For offence under section 324 P.P.C. to suffer RI for five years and fine of Rs.30,000/- in case of default in payment of fine he shall undergo SI for three months more.

· For offence under section 337-A(i) P.P.C. to suffer SI for one year and Rs.10,000/- as Daman to be paid to injured Sanaullah.

· For offence under section 337-A(ii) P.P.C. to suffer RI for three years and Rs.2,00,000/- as arsh to be paid to injured Sanaullah, in case of default he shall undergo SI for six months more.

· Benefit of Section 382-B Cr.P.C. is extended to him and all sentences shall run concurrently.

1. Allegedly, appellant along with his brother Waseem (absconder) and one unknown accused, duly armed with lathis and a gun accosted complainant party, on account of a previous dispute, when they were present on their agricultural land and cutting grass on 03.03.2018 at about 07:00 p.m. Appellant Saalim, armed with a lathi, inflicted its blows to brother of complainant Sanaullah. Unknown accused inflicted lathi blows to complainant. During ensuing scuffle, appellant Saalim also sustained injuries on his head. Meanwhile, absconder accused Waseem, armed with a shotgun, fired at complainant, his father Allahando and brother Sanaullah, causing them multiple firearm injuries. Father of complainant was seriously injured, and he was taken to Police Station first for a letter for treatment and then to a government hospital, Tharu Shah, from where he was referred to a government hospital, Naushahro Feroze, where he succumbed to injuries and died, whereas, brother of complainant Sanaullah was referred to government hospital, Nawabshah for treatment. Police was duly informed, and after postmortem and burial, complainant appeared at Police Station and registered the FIR on 04.03.2018 at 1600 hours, as above.

2. Appellant, during investigation, was arrested on 06.03.2018, unknown accused could not be identified and his brother Waseem could not be arrested. Due proceedings against him were held and he was declared proclaimed offender. Thereafter, trial against the appellant started. Towards a formal charge he pled not guilty; hence, prosecution examined as many as nine witnesses, who have produced all the necessary evidence. In 342 Cr.P.C. statement, appellant has denied the allegations and submitted that he is innocent. However, he did not examine himself on oath or led any defence evidence. At the culmination of the trial, the trial Court vide impugned judgment has convicted and sentenced the appellant as above. Hence, this appeal.

3. Learned Counsel for the appellant at the very outset has submitted that the role assigned to the appellant is of causing lathi blows to PW Sanaullah, who has received in all five injuries. Injuries Nos.1, 2, 3 and 4 are minor in nature under section 337-A(i) P.P.C., punishable for 02 years, whereas, injury No.5 under section 337-A(ii) P.P.C., is punishable for 05 years. There is no evidence that he had instigated the main accused to commit murder of deceased Allahando. The case is completely silent that the appellant, in any way, had facilitated the main accused to commit murder of deceased. The incident had happened in fact at the lands of accused where the complainant party had come. In the incident, appellant Saalim also got injured, which fact is borne out of the evidence of Medico Legal Officer, and his certificate of injuries is also available at Page No.253. This fact shows that there was a free fight between the parties and absconder accused Waseem fearing for his life, had fired upon the deceased. Learned Deputy Prosecutor General has supported the impugned judgment, and submits that the appellant is vicariously liable for committing murder of deceased Allahando.

4. I have heard the parties and perused material available on record. The prosecution has examined three eyewitnesses: complainant Sartaj (PW-4 at Ex.7), Naeem Kalo (PW-5 at Ex.8) and Sanaullah (PW-7 at Ex.10). Giving the account of incident, they all have attributed to appellant role of causing lathi injuries to Sanaullah. None of them has stated that appellant Saalim had, in any manner, facilitated the main absconder accused Waseem in committing murder of deceased Allahando. None of the witnesses has hinted in evidence that appellant and other two accused had come with a common intention to commit murder of the deceased. All of them have stated that they were present on their lands and cutting grass, when appellant and other accused arrived there and asked them as to why they were cutting grass, given the dispute between them over agricultural land, and then they started inflicting blows to them. From such evidence, it is apparent that every accused acted independently, and did not facilitate each other in inflicting blows to their victims, nor instigated others to commit the crime and murder the deceased ultimately. At no stage, it has been suggested by any of the witnesses that appellant Saalim had facilitated the main accused by either pointing out to the deceased to be their main enemy or holding him responsible for the ongoing dispute between them. There was no reason to the accused party to target the deceased particularly and murder him which is suggestive of the fact that it was a free fight between the parties. This is further fortified from the mashirnama of place of incident, that shows that the incident took place on the lands of accused party and not on the lands of complainant party, in which appellant himself was injured, as is evident from the evidence of Medico Legal Officer (PW-8 at Ex.11). This also suggests that there was no preplanning by the accused party, and incident took place when the complainant party decided to accost the accused party when they were present on their lands.

5. In such circumstances, when the confidence inspiring evidence to establish sharing of common intention by the appellant is lacking, the appellant cannot be held vicariously liable for murder of the deceased Allahando. No doubt, he was part of the team and by the unlawful action of which one person lost his life and two persons were injured including complainant. But the fact that injured received only minor injuries at the hands of appellant, and appellant was not carried away by the pull of situation and caused any injury to the deceased would at least show that at the nick of moment when the incident had happened, his intention was not in alignment with absconder accused Waseem in murdering the deceased.

6. A person, who is part of the attacking team but has performed a minor role, cannot be automatically held vicariously liable just because he is a member of the attacking party, unless confidence inspiring evidence redolent of the fact that he had come with predetermined mind to commit murder of the victim, and that during incident had materially facilitated the main accused in committing murder of the deceased comes on record. Therefore, I find the argument of learned defence Counsel carrying weight in the given facts and circumstances of the case, not least when nothing of the sort pointing to sharing of common intention by the appellant has been suggested by the witnesses. The appellant, in the circumstances, would be held responsible only for injuries inflicted by him on victim PW Sanaullah. As per medical evidence, Sanaullah had received five injuries as detailed above. The maximum punishment for injuries falling under section 337-A(ii) P.P.C. is 05 years.

7. The jail roll of the appellant, received on 17.11.2023, reflects that appellant has remained in jail substantially for 05 years, 08 months and 11 days, has earned remissions of 07 years, 07 months and 19 days, his unexpired portion is 12 years and 11 months including sentence for failure to pay compensation. The appellant therefore has already undergone 13 years and 04 months, although the maximum punishment under section 324 P.P.C. is up to 10 years.

8. For foregoing discussion, the appeal on merits is dismissed along with pending applications. However, the conviction and sentence awarded to appellant under Sections 302, 34 P.P.C. are set aside, and the conviction and sentence under Sections 324, 337-A(i), 337-A(ii) P.P.C. are maintained and converted into the period already undergone by the appellant. The appellant shall be released if he is not required in any other custody case, however, on payment of Daman of Rs.10,000/- under section 337-A(i) P.P.C. and Arsh of Rs.2,00,000/- under section 337-A(ii) P.P.C. to victim Sanaullah, or in case of default in latter payment, after undergoing SI for six months more.

Above are the reasons of my short order dated 27.11.2023.

JK/S-8/Sindh Appeal dismissed.

2024 M L D 1039

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro and Arbab Ali Hakro, JJ

Attique Rahman Phulpoto and another---Petitioners

Versus

Federation of Pakistan through DAG and 9 others---Respondents

Constitution Petitions Nos. D-70 and D-71 of 2024, decided on 23rd January, 2024.

Elections Act (XXXIII of 2017)---

----Ss. 62 & 63---Constitution of Pakistan, Art. 199---Constitutional petition---Election dispute--- Locus standi---Non-filing of objections---Petitioners assailed acceptance of nomination papers of respondent candidate by Election Appellate Tribunal which set aside the order passed by Returning Officer---Validity---Petitioners did not file any objections to candidature of respondent candidate at the time of scrutiny of his nomination papers under S.62 (i) of Elections Act, 2017---Locus standi of petitioners to challenge order of Election Appellate Tribunal in favour of respondent candidate was under heavy shadow--- Nomination papers of respondent candidate were not rejected on any objection raised by any of the voters of the constituency but by Returning Officer on his own motion considering him as defaulter in payment of government taxes---Even in appeal before Election Appellate Tribunal against such order of Returning Officer, petitioners did not file any application to be made as party under S.63 of Elections Act, 2017, nor opposed appeal in any form---Petitioners lacked competency at such belated stage to challenge order of Election Appellate Tribunal---High Court declined to interfere in order passed by Election Appellate Tribunal as there was no illegality in it and was based on valid reason---Constitutional petition was dismissed, in circumstances.

Abdul Ghafoor v. R.O and others 2013 SCMR 1271 ref.

Sohail Ahmed Khoso and Abdul Qadeer Khoso for Petitioners (in both petitions along with petitioners).

Khan Muhammad Sangi on behalf of respondents Nos. 8 and 9 (FBR) in both petitions, along with Syed Tahir Hussain Shah, Assistant Commissioner, Inland Revenue, RTO, Sukkur.

Safdar Ali Bhatti on behalf of respondent No. 10 (in both petitions along with respondent No. 10).

Zeeshan Haider Qureshi, Law Officer of Election Commission of Pakistan along with Jawad Ali (Additional Deputy Commissiioner-I, Khairpur/Returning Officer NA-202, Khairpur-I) and Muhammad Ali (Assistant Commissioner Khairpur/Returing Officer PS-26, Khairpur).

Dareshani Ali Haider 'Ada', Deputy Attorney General.

Liaquat Ali Shah, Additional Advocate General Sindh and Ali Raza Baloch, Assistant Advocate General Sindh.

Date of hearing: 23rd January, 2024.

Order

MUHAMMAD IQBAL KALHORO, J.---By means of these two petitions, petitioners have challenged the candidature of respondent No.10/Imam Bux Phulpoto to contest upcoming election both as a Member Sindh Assembly against PS-26 district Khairpur and a Member National Assembly (Majlis-e-Shoora) against NA-202 district Khairpur on the grounds, amongst others, that he did not disclose all the relevant facts in his nomination papers for both the seats and is defaulter in payment of tax due against him for the year 2017-2018; that he did not fulfill qualification, as articulated under Article 62 and is further disqualified under Article 63 of the Constitution, as he has failed to mention liability of tax in Form-B of nomination papers; that his nomination forms were rightly rejected by learned Returning Officer holding that despite time given to respondent No.10 to make good of tax liability, he failed to do so and had instead produced an order of Commissioner (Appeals) Inland Revenue, Sukkur staying proceedings of assessment order dated 07.06.2023 against him, which being passed by a quasi-judicial forum, cannot be made a basis to avoid payment; that plea of respondent No.10 that he had no knowledge of tax liability outstanding against him is in fact an afterthought and a blatant lie, as the documents of FBR show that he was duly served with notices sent to his email, mobile phone etc.; that his stance before the Returning Officer and Appellate Tribunal pleading lack of knowledge comes within the definition of dishonesty and therefore he is not a fit person to contest election and be elected. In support of his contentions, he has relied upon cases reported as Abdul Ghafoor v. R.O and others (2013 SCMR 1271) and an unreported judgment dated 09.01.2024, passed by Divisional Bench of this Court in C.P.No.D-88 of 2024 etc. Learned AAG has supported his arguments.

1. Learned DAG has, however, submitted that proceedings before FBR are only for effecting recovery of tax liability from respondent No.10 and as per circular dated 05.10.2022, when the matter is pending before the department either in assessment proceedings or in appeal, coercive measures against the defaulter cannot be taken.

2. Learned counsel for ECP has supported the impugned order. Learned counsel for FBR has admitted that since appeal before the Commissioner (Appeals) Inland Revenue, Sukkur regarding tax liability of respondent No.10 is pending, he cannot be declared as defaulter in payment of tax, or compelled to pay the tax liability.

3. Learned counsel for respondent No.10 submits that respondent No.10 has been adjudicated liable to pay tax against his role as Honorary Chairman in the Managing Committee of Rok Co-operative Housing Society Ltd., which he had left in August, 2020. This tax liability is not against the person of respondent No.10 but against his office as the Chairman of Co-operative Society which otherwise has been paying taxes regularly and that appeal against assessment order has been heard and reserved for order. He has, however, supported the orders of the Tribunal allowing appeals of respondent No.10 against orders of Returning Order rejecting his nomination papers.

4. We have heard the parties and perused material available on record and taken guidance from the case law relied at bar. In the assessment order passed by Deputy Commissioner Inland Revenue, Sukkur, respondent No.10 has been adjudicated to be liable to pay Rs.14,927,983/- Section 2 of subsection XXIII of the Elections Act, 2017 defines government dues and utility expenses as rent, charges of rest houses or lodges or other accommodation owned by any Government or a body owned or controlled by any Government but shall not include the government dues and utility expenses the recovery of which has been stayed by any order of a Court or Tribunal. Subsection XXXVIII of the said provision defines tax as a tax levied by any Government, but shall not include taxes the recovery of which has been stayed by a Court or Tribunal. It is obvious that none of government dues, utility charges and taxes can be counted or considered against a candidate to declare him ineligible to contest the election if such liability has been stayed by any Court or Tribunal.

5. The stay by Court or Tribunal means that original proceedings finally determining liability have already been decided by departmental hierarchy and are pending adjudication for confirmation or otherwise either before the Court or Tribunal, which has meanwhile stayed the proceedings. The urge of learned counsel for petitioners and learned AAG that since appeal filed by respondent No.10 is pending before the Commissioner (Appeals) Inland Revenue, Sukkur that is a quasi-judicial forum, any stay granted by it would not be considered as stay given by the Court or Tribunal and hence its benefit would not be extended to the candidate. Such argument is completely lopsided and does not take into consideration underlining object behind such formulation, which essentially postulates that even if a candidate has been adjudicated finally by the department to be defaulter in payment of tax liability etc., but his case is pending either before the Court or Tribunal, the next forum, and it has granted stay against the order passed by the tax hierarchy determining conclusively his liability, such order would not come in his way insofar as his right to contest the election is concerned. Herein, even the departmental hierarchy has not made a final decision in regard to alleged tax liability of respondent No.10 and the matter is pending in appeal. It is settled that an appeal against original proceedings marks its continuation, and unless decided, no liability etc. in terms of impugned order either can be attached or any recovery proceedings initiated against the debtor/defaulter.

6. Learned Returning Officer while rejecting the nomination forms of respondent No.10 failed to take into account such scheme of law and purpose behind enactment of aforesaid provisions and proceeded to reject the forms in haste. Further, non-mention of such liability by respondent No.10 in Form-B of his nomination forms ipso facto does not qualify a disqualification unless it is shown that such non-disclosure by him was a result of dishonest intention or meant to avoid making good of liability in accordance with law. Section 62(9)(d)(ii) of the Elections Act, 2017 casts a duty upon Returning Officer to not reject nomination papers on the ground of any defect, not of substantial nature, and may allow any such defect to be remedied forthwith. Sub-section 10 of the said provision of law further lays down that notwithstanding anything contained in subsection 9 where a candidate deposits any amount of loan, tax or government dues and utility expenses payable by him, of which he is unaware at the time of his nomination papers, such nomination papers shall not be rejected on the ground of default in payment of such tax or government and utility expenses (emphasis supplied).

7. We have already defined above "government dues", "utility expenses" and "taxes" payable by the candidate, which will not be counted and considered as liability against him if it has been stayed by any Court or Tribunal. Meaning thereby the same have been conclusively determined by the department and have, however, been stayed by either of above forums, when challenged. The thrust of above provision of law is that it is only when government dues, utility expenses, loan or taxes are found payable by a candidate which he, despite a chance given, fails to deposit, his nomination papers would be liable to be rejected. Keeping in view this formulation, it is easy to infer that nothing of the charges as defined above is payable by respondent No.10. And therefore, rejection of his nomination forms on the ground of default is not justified. Learned counsel for petitioners or learned AAG have miserably failed to show that tax liability determined by FBR in terms of assessment order dated 07.06.2023 is final and payable in law by respondent No.10 after filing of appeal and stay in it granted by the Commissioner (Appeals) Inland Revenue, Sukkur. The said liability would be payable in law by respondent No.10 only when he has, at least, departmentally been adjudicated to owe such amount to the government. Here even the department is still in the process of making a final decision against respondent No.10. So far only an ex-parte assessment order dated 07.06.2023 has been passed calculating an amount of Rs. 14,927,983/- outstanding against him, which he has for the time being to the extent of stay successfully challenged. No one has disputed that even in the event of his failure to succeed in appeal, respondent No.10 will have a remedy to challenge such order before the Appellate Tribunal and then before this Court in case of his failure before the Appellate Tribunal. At this preliminary stage of ongoing process to make assessment of his tax liability by FBR, which is amenable to challenge before various forums, he cannot be declared as in default of government dues, tax etc., and deprived of right of contesting upcoming election on both seats, as detailed above.

8. It may also be noted that petitioners had not filed any objections to the candidature of respondent No.10 at the time of scrutiny of his nomination papers under section 62(i) of the Elections Act, therefore, their locus standi to challenge the order of Election Appellate Tribunal in favour of him is under heavy shadow. The nomination papers of respondent No.10 were not rejected on any objection raised by any of the voters of the constituency but by the Returning Officer on his own motion considering him as a defaulter in payment of government taxes. Even in appeal before the Election Appellate Tribunal against such order by respondent No.10, the petitioners did not file any application to be made as party under section 63 of the Elections Act and opposed appeal in any form. At this belated stage, in our humble view, petitioners lack competency to challenge the order of the Election Appellate Tribunal.

9. In view of above discussion, we have found no illegality in the order of the Election Appellate Tribunal dated 08.01.2024 encapsulating valid reasons and reference to the relevant provisions of law in favour of respondent No.10. This being the position, we find no merits in these petitions and accordingly dismiss the same.

10. Nonetheless, before parting with this order, we may observe that in case, appeal (reserved for judgment) filed by respondent No.10 before the Commissioner (Appeals) Inland Revenue, Sukkur fails, and unless such order is stayed by any Court or Tribunal, the Election Commission would be competent to, and shall, take action in accordance with law against respondent No.10 to ensure payment of tax liability by him before notifying him as a returned candidate in case he has won the election. But in case his appeal is decided against him after the election and he is notified as returned candidate after winning the election, still the Election Commission would be competent to take action against respondent No.10 under the relevant provisions to ensure payment of tax liability by him, until and unless such order is challenged and is stayed by any Court or Tribunal.

Office to place a signed copy of this order in captioned connected matter.

MH/A-13/Sindh Petition dismissed.

2024 M L D 1047

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

Kamran alias Kami---Appellant

Versus

The State---Respondent

Criminal Appeal No. S-59 of 2021, decided on 31st May, 2022.

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

----Ss. 376 & 511---Rape, attempt to commit offence---Appreciation of evidence---Benefit of doubt---Accused was charged for forcibly committing rape with the daughter of complainant---In the case in hand complainant party including the victim girl had been declared hostile before the Trial Court hence they had not supported the case of prosecution---Alleged incident was said to have taken place on 13.11.2018 at about 2.00 am (night time) whereas the report thereof was registered on 17.11.2018 at 04.30 pm by complainant after the delay of four days without any plausible explanation which showed the real possibility that the matter was reported to the police with due consultation and deliberation---Mashir who was the real brother of the complainant had not been examined before the Trial Court---Statement of said mashir showed that he did not know about the case---Moreover, the mashirnama of arrest showed that accused was arrested on 26.11.2018 in presence of police mashirs and the Investigating Officer in his cross examination admitted that he did not attempt to associate any other local person as mashir---Complainant stated that light was burning whereas the victim stated that there was load-shedding at the time of incident---Moreover, there was difference between the date and time of incident---As per FIR, the alleged incident occurred on 13.11.2018 at 2.00 am (night time) whereas in his examination in chief, the complainant deposed that it was 12.11.2018 and the victim/star witness of the case stated before the Medical Officer that it was 13.11.2018 at 09.00 pm, which created doubt in the prosecution case---Facts and circumstances of the case indicated that the mode and manner of the occurrence had not been ascribed by the victim as to what actually happened on the day of occurrence as it was alleged that she was forcibly subjected to sexual intercourse, but no mark of violence was found on her body by the woman Medico-Legal Officer---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Amir v. The State and another 2018 YLR 2592 ref.

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

----Ss. 376 & 511---Rape, attempt to commit offence---Appreciation of evidence---Benefit of doubt---Medical evidence---Delay in sending swabs for chemical analysis---Accused was charged for forcibly committing rape with the daughter of complainant---Record showed that DNA report said that semen was found but when the semen was not sent then how the Chemical Report could state positive---Moreover, the semen was alleged to have been found on the clothes of the victim, thus, this was a case of attempt to rape and the complainant party had shown their suspicion upon the present accused---Nobody could be convicted on account of presumptions and assumptions as the Woman Medico-Legal Officer had opined that "there might be an attempt of rape"---Moreover, it appeared that victim was produced before the woman Medico-Legal Officer on 19.11.2018 after a delay of six days of the incident but as per medical theory after 72 hours no semen could be detected---Woman Medico-Legal Officer further observed that there were no marks of violence on the body of victim---Victim had no injury on her body at all---Woman Medico-Legal Officer admitted in her cross examination that as per D.N.A report, there was no mention of detection of human semen in the low vaginal cotton swabs---Duration of detection of human semen was about 72 hours---Victim was examined by woman Medico-Legal Officer about one week after the alleged incident---As per Chemical Report, the low vaginal cotton swabs were received at chemical laboratory on 29.11.2018 i.e., about two weeks after the alleged incident---Doubt was there in the report of Chemical Analyst as the human semen was not detected in the low vaginal swabs sent to D.N.A. testing laboratory---Record was silent as to why the delay occurred in the dispatch of cotton swabs to the chemical laboratory---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Benefit of doubt---Principle---Any slightest iota of doubt if created in prosecution case, would be counted in favour of the accused and the accused would be entitled to its benefit not as a matter of grace and concession but as a matter of right.

Tariq Parvez v. The State 1995 SCMR 1345 rel.

Ahsan Gul Dahri for Appellant.

Miss Sana Memon, Assistant Prosecutor General, Sindh for the State.

Sanaullah Khoso for the Complainant.

Date of hearing: 19th May, 2022.

Judgment

ZULFIQAR AHMaD KHAN, J.---Appellant Kamran alias Kami was tried by learned IIIrd 3rd Additional Sessions Judge/Juvenile Court, Shaheed Benazirabad in Sessions Case No. 68 of 2019, arising out of Crime No.159/2018 registered at Police Station Airport Nawabshah for offence under Section 376 P.P.C.. Vide judgment dated 06th March 2021, the appellant / accused was convicted for offence punishable under Section 376 read with 511 P.P.C. and sentenced to suffer RI for Seven (07) years and to pay the fine of Rs.100,000/- (Rupees one lac). In case of default in payment of fine, accused was ordered to suffer SI for Six (06) months more. In addition to above sentence, the appellant was also directed to pay the compensation of Rs.1,00,000/- (Rupees one lac) to the victim Mst. Sehrish Qazi as provided under section 544-A Cr.P.C. Benefit of Section 382-B Cr.P.C. was however extended to the appellant.

1. The relevant facts of the prosecution case as mentioned by the trial court in its judgment reads as under:-

"I am residing with my family on the above address having 02 sons and 01 daughter. Mst. Sehrish, aged about 14 years, is my eldest daughter. On 12-11-2018 I, my wife Mst. Saima, daughter Mst. Sehrish and other children went to sleep at night. The electricity in the house was on. On 13-11-2018 at about 02:00 am (mid night hours) I and my wife Mst. Saima woke up on cries of Mst. Sehrish and saw, on the burning light installed in the Veranda, that our neighbour namely Kamran alias Kami son of Ikram alias Jaga Qureshi whose shalwar was off and my daughter Mst. Sehrish, whose shalwar was also removed, was committing rape of my daughter Mst. Sehrish on cot lying in the Veranda. As soon as the accused saw us, he wore his shalwar and escaped away. My daughter Mst. Sehrish was weeping. We got her shalwar worn. She disclosed that the accused Karam alis Kami Qureshi had forcibly committed her rape. My elder brother Abdul Jabar had gone away who came today. We narrated the facts to him who advised us to go to Police Station and lodged the FIR."

1. After usual investigation challan was submitted against accused under the above referred Section and he was sent up for trial.

2. Trial Court framed charge against accused at Ex.2, to which, he pleaded not guilty and claimed to be tried.

3. In order to substantiate the charge, prosecution examined complainant Muhammad Asif Qazi at Exh.03, who produced FIR at Exh.03/A, CNIC at Exh.03/B; PW-2/witness Mst. Saima Qazi at Exh.04 who produced CNIC at Exh.04/A, memo of site inspection and memo of clothes' production at Exh.04/B and 04/C; PW-3/ Victim Mst. Sehrish at Exh.05, who produced her photograph at Exh.05/A; PW-4 Dr. Muhammad Waliullah Qureshi at Exh.06, who produced police letter at Exh.06/A, Letter to In-charge Forensic and Molecular Lab for DNA Testing, LUMHS Jamshoro at Exh.06/B; PW-5/Author of FIR ASI Shahid Khan Memon at Exh.07; PW-6/I.O./Inspector Nisar Ahmed Mughal at Exh.08, who produced photocopy of memo of arrest and recovery at Exh.08/A, R.C. No.263 dated 29-11-2018 at Exh.08/B, Letter No.Cr.159/2018 dated 06-12-2018 and R.C No.366 dated 06-12-2018 at Exh.08/C and 08/D; PW-7 Retired SIP Muhammad Juman at Exh.09, who produced DNA Testing report at Exh.09/A; PW-8 W.M.O. Dr. Shameem Javed Brohi at Exh.10, who produced provisional certificate vide No.PS/SBA/3094 dated 22-11-2018 at Exh.10/A, Letters issued to the Chemical Analyser, Rohri as well as to the Incharge Forensic and Molecular lab for DNA Testing LUMHS, Jamshoro at Exh.10/B and 10/C, Report at Exh.10/D, Final Medical Certificate vide No.PS/SBA/008 dated 03-01-2019 at Exh.10/E. Thereafter, prosecution side was closed vide statement at Ex.11.

4. Statement of accused was recorded under Section 342 Cr.P.C at Exs.12, wherein he denied the prosecution allegations and pleaded innocence. Appellant further stated that case has falsely been managed against him; no private witness has deposed against him and the official witnesses are interested. However, neither he examined himself on Oath nor produced any evidence in his defence to disprove the prosecution allegations.

5. Learned trial Judge after hearing the learned counsel for the parties and examining the evidence available on record, through its judgment dated 06.03.2021 convicted and sentenced the appellant as stated supra.

6. Facts of the prosecution case as well as evidence find an elaborate mention in the judgment of the trial court as such there is no need to repeat the same to avoid unnecessary repetitions.

7. I have heard Mr. Ahsan Gul Dahri, learned counsel for appellant, Miss Sana Memon, learned A.P.G for the State and Mr. Sanaullah Khoso, learned counsel for complainant at length and perused the entire evidence minutely with their assistance.

8. Learned counsel for the appellant has mainly argued that appellant is innocent and has falsely been implicated in the case in hand by police due to some personal grudge; that the prosecution story was un-natural and unbelievable; that the alleged incident is said to have been occurred on 13.11.2018 whereas the report thereof was got registered on 17.11.2018 after the delay of four days without any plausible explanation; that in this case the complainant as well as eye-witnesses including victim who is the star witness of case have exonerated the appellant from the commission of offence; that PW Mst. Saima has also not supported the case of prosecution; that medical evidence including DNA report are not supporting the case of prosecution; that ingredients of Sections 376 and 511 are missing in the case in hand; that report of WMLO totally belies the version as narrated in the FIR; that private person of the locality was not associated to act as mashir; that material contradictions have been brought on record in the evidence of prosecution witnesses; that this is the case of no evidence at all. Lastly, he has prayed for acquittal of the appellant. In support of his contentions, learned counsel has placed reliance on the case law reported as Muhammad Amir v. The State and another (2018 YLR 2592).

9. On the other hand, learned A.P.G as well as learned counsel for the complainant opposed the appeal on the ground that appellant has been named in FIR with specific role; that the prosecution has fully established its case against the appellant beyond any shadow of doubt; that complainant as well as eye-witnesses including victim have supported the main incident including commission of rape with the victim; that ocular set of witnesses have only exonerated the present accused from identification at the spot and have supported that they had suspicion over the present appellant; that the exoneration of accused by the prosecution witnesses at the time of evidence is outcome of pressure of the accused party for entrance in the compromise which is not warranted under the law as the offence is not compoundable in nature; that D.N.A. report has clearly mentioned that the present accused has committed the offence. Lastly, they have prayed for dismissal of the appeal.

10. I have carefully heard the learned counsel for the parties and scanned the entire evidence in the light of case law cited by the counsel for the appellant.

11. In my considered view, prosecution has failed to prove its' case against the appellant for the reasons that in the case in hand complainant party including the victim girl have been declared hostile before the trial court hence they have not supported the case of prosecution. Further, the alleged incident is said to have taken place on 13.11.2018 at about 2-00 a.m (night time) whereas the report thereof was got registered on 17.11.2018 at 1630 hours by complainant Muhammad Asif after the delay of four days without any plausible explanation which shows the real possibility that the matter was reported to the police with due consultation and deliberation. Mashir Jabbar who is the real brother of the complainant has not been examined before the trial court. The statement of said mashir at page-35 of paper book shows that he does not know about the case. Moreover, the mashirnama of arrest shows that accused was arrested on 26.11.2018 in presence of police mashirs and the I.O in his cross examination admitted that he did not attempt to associate any other local person as mashir. Complainant stated that light was burning whereas the victim stated that there was load-shedding at the time of incident. There is also difference between the date and time of incident. As per FIR, the alleged incident occurred on 13.11.2018 at 2-00 a.m (night time) whereas in his examination in chief, the complainant deposed that it was 12.11.2018 and the star witness of the case namely Sehrish stated before the Medical Officer that it was 13.11.2018 at 09-00 p.m, creating doubt in the prosecution case. The facts and circumstances of the case indicates that the mode and manner of the occurrence had not been ascribed by the victim as to what actually happened on the day of occurrence as it is alleged that she was forcibly subjected to sexual intercourse but no any mark of violence was found on her body by the WMLO.

12. As discussed above, the complainant party including victim girl have not supported the case of prosecution and only DNA report says that semen were found detective but per learned counsel for the appellant when the semen were not sent then how the chemical report says positive. Moreover, the semen were alleged to have been found on the clothes of the victim. As per learned A.P.G this is a case of attempt to rape and the complainant party had shown their suspicion upon the present appellant. It is settled law that nobody can be convicted on account of presumptions and assumptions as the trial court itself has written in its judgment referring the opinion of WMLO that "there might be an attempt of rape". Moreover, it appears that victim was produced before the WMLO on 19.11.2018 after the delay of six days of incident but as per medical theory after 72 hours no semen could be detected. The WMLO further observed that there were no marks of violence on the body of victim. The victim had no injury on her body at all. She further admitted in her cross examination that "It is correct to suggest that as per D.N.A report, there is no mention of detection of human semen in the low vaginal cotton swabs. The duration of detection of human semen would be about 72 hours. The victim was examined by me about one week after the alleged incident. It is correct to suggest that as per chemical report, the low vaginal cotton swabs were received at chemical laboratory Rohri on 29.11.2018 about two weeks after the alleged incident. There is a doubt in the report of chemical analyser Rohri as the human semen was not detected in the low vaginal, swabs sent to D.N.A. Testing Laboratory. I do not know as to why the delay was occurred in the despatch of cotton swabs to the chemical laboratory Rohri". She was also of the opinion that chemical findings of consultant gynaecological findings (opinion) does not correct with the chemical report received from (chemical lab Rohri) in which human semen was detected in the vaginal swab.

13. Apart from above, four items were sent to the chemical examiner but the semen was only found on the clothes of victim whereas vaginal swabs were not found positive. According to A.P.G this case can be treated as an attempt to commit rape and not of committing rape. She further submits that the punishment is provided under section 511 P.P.C. as Section 376 P.P.C. is not proved. According to the counsel for appellant, if the attempt is made then there should be some marks of violence on the body of victim girl which are lacking in the case in hand. He further added that the clothes of victim are not belonging to her but the same have been sent by police with mala fide intention and ulterior motive. The clothes of victim girl were recovered on 06.12.2018 after the delay of 25 days, whilest the offence was allegedly committed on 13.11.2018 which creates serious doubts in the prosecution case. The chemical examiner report shows that human semen was detected but as per counsel, it could be of anybody. There is also delay in sending and receiving the sample by the concerned Laboratory. Clothes of victim as per DNA report shows Ferozi colour shalwar and Ferozi colour Qameez with embroidery whereas the mashirnama dated 06.12.2018 shows that the colour of Shalwar Qameez of the victim was of light green colour. Accused was arrested on 26.11.2018 and sample was taken on 29.11.2018 through PC Karim Bux but he has not been examined before the trial court. Lady doctor also disagreed with the chemical examiner report of Kotri as according to her swabs cannot be detected after 72 hours. When swab of the accused Kamran were not taken, then how those were sent to the chemical examiner. It is also not ascertained from where the swabs of Kamran were taken on the contrary, the report shows Karman's blood sample were taken. Laboratory also shows in column No.3 blood sample of victim girl Sehrish which are not mentioned anywhere else in her evidence or in any other report.

14. Considering the above facts and circumstances, in my humble view prosecution has failed to bring guilt at home, whilest the appellant has succeeded to make out his case, as there are solid reasons to believe his plea of innocence. It is well settled that any slightest iota of doubt if created in prosecution case, shall be counted in favour of the accused and then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right whereas in the case in hand there are number of doubts created in the case of prosecution. In this regard, reliance can be placed upon case of 'Tariq Parvez v. The State' [1995 SCMR 1345] wherein it has been held by Honourable Supreme Court of Pakistan that:

"For giving benefit of doubt to appellant it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as matter of right".

1. For the aforementioned reasons, I have no hesitation to hold that the prosecution has miserably failed to prove its case against the appellant / accused. Resultantly, instant Criminal Appeal No.S-59/2021 is allowed and the conviction and sentence recorded by the trial court through impugned judgment dated 06.03.2021 are set aside. Appellant Kamran alias Kami is acquitted of the charge. Appellant is in custody. He shall be released forthwith if not required in any other custody case.

JK/K-15/Sindh Appeal allowed.

2024 M L D 1063

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Ghulam Rasool Rabbani---Appellant

Versus

The State and another---Respondents

Special Criminal A.T.A. Appeal No. 03 of 2021, decided on 16th August, 2022.

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

----Ss. 11-F(i), 11-J(ii), 11-Q & 11-N---Collecting funds for a proscribed organization---Appreciation of evidence---Benefit of doubt---Accused was charged for collecting funds being related to proscribed organization for terrorism activities---First Information Report was registered on the basis of intelligence report, as mentioned in the F.I.R and deposed by the complainant before the Trial Court, however, said intelligence report was not produced by the prosecution before the Trial Court nor was there any evidence that it was collected by the Investigation Officer during the investigation of the case---Name of accused had not transpired in the FIR and there was no allegation that the accused was collecting the funds for the proscribed organization---Prosecution also failed to establish that by whom the intelligence report was prepared and the same person was not called as a witness---Complainant during cross-examination admitted that he had gone through the contents of intelligence report for about 10/15 minutes and no specific name of any person was available in such intelligence report---Complainant further admitted in his cross-examination that no specific material regarding proscribed organization was obtained during site inspection of the concerned Masjid which he conducted after the registration of FIR---After the FIR Investigation Officer proceeded towards the Masjid/Madressah and as per his deposition accused was not available in the Masjid and he knocked the door of the house adjacent to Masjid and collected some documents from the wife of the accused---Said female was not examined by the Investigation Officer nor was she produced before the Trial Court---Investigation Officer also captured some photographs of the Masjid and the same were exhibited in the evidence before the Trial Court but he did not collect any material which reflected that the said Masjid belonged to any banned organization or was being used by the same---Photographs so captured by the Investigation Officer also did not indicate any substance in respect of any connection with the banned organization---Investigation Officer examined two private persons but only one was examined who also had not disclosed a single word in his evidence to the effect that accused was collecting funds for proscribed organization---During cross-examination said witness stated that he did not know whether accused belonged to Ahl-e-Hadees sect, which reflected that said witness was not in knowledge that to which sect or organization accused belonged---Except said witness, the prosecution had no witness who testified that the accused belonged to banned organization, and evidence of said witness was not of such standard to maintain conviction---Appeal was allowed, in circumstances.

The State v. Muhammad Babar Lodhi and another 2000 PCr.LJ 1044; Shahmeer v. The State 2020 PCr.LJ 1215 and Muhammad Mansha v. The State 2018 SCMR 772 ref.

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

----Ss. 11-F(i), 11-J(ii), 11-Q & 11-N---Collecting funds for a proscribed organization---Appreciation of evidence---Benefit of doubt---Recovery of receipt of funds---Accused was charged for collecting funds being related to a proscribed organization for terrorism activities---As per the case of the prosecution at the time of arrest of the accused some articles which included receipt of the funds/chanda were recovered from the accused and were exhibited in evidence through mashir to prove the case, but Investigation Officer failed to collect evidence in respect of donors and the names of the persons who donated the funds, nor the amount on receipt was disclosed by the prosecution---In one receipt it was stated that amount of Rs. 500/- was donated by Jamia Masjid but the Investigation Officer had not inquired from the said donor to prove that the amount of Rs. 500/- was donated to the accused by the said donor---Investigation Officer also stated that the wife of the accused herself produced certain documents which included one chanda book in the name of Baab-ul-Harmain Shareefain, out of which one receipt was issued but the amount and the name of such donor was also not disclosed by the mashir and the Investigation Officer---Mashir also admitted during cross-examination that the chanda receipts recovered from the accused at the time of his arrest were not related to proscribed organization---Receipts were also not sent by the Investigation Officer to the handwriting expert to prove that the handwriting on the receipt was of the accused---Investigation Officer admitted that no monogram or name of banned organization was available upon the receipts which were recovered during arrest of the accused---Appeal was allowed, in circumstances.

(c) Criminal trial---

----Benefit of doubt---Principle---A single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.

(d) Criminal trial---

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

Wazir Mohammad v. The State 1992 SCMR 1134; Shamoon alias Shamma v. The State 1995 SCMR 1377 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

Shahid Hussain Soomro for Appellant along with Sajid Hussain Soomro.

Saleem Akhter, Addl. Prosecutor General Sindh for the State.

Date of hearing: 11th August, 2022.

jUDGMENT

ZULFIQAR ALI SANGI, J.---Being aggrieved and dissatisfied with the judgment dated 28.12.2020 passed by learned Judge, Anti-Terrorism Court No.XII, Karachi in Special Case No.344 of 2020 arising out of FIR No.159/2020 for offences under Sections 11-J(ii), 11-OOO, 11-OO, 11-Q, 11-N of ATA, 1997 at PS CTD, Karachi; whereby the appellant was convicted under Section 265-H(ii) Cr.P.C. and sentenced for offence under Section 11-F(1) with R.I. six months along with fine of Rs.10,000/- and in case of failure to pay fine, he shall suffer SI for 06 months. The appellant was also sentenced for offence under Section 11-F(5) with R.I. for five years along with fine of Rs.10,000/- and in case of failure to pay fine, he shall suffer SI for 04 months more. The appellant also sentenced under Section 11-J(2) with R.I. for ten years along with fine of Rs.10 million and in case failure to pay fine, he shall suffer SI for six months more. The appellant was also sentenced under Section 11-OOO with R.I. for ten years along with fine of Rs.10 million and in case of failure to pay fine, he shall suffer SI for six months more. The Masjid/Madressah Baab-ul-Harmain Shareefain was also forfeited under Section 11-Q(4) with directions to Administrator Education Assets (Madaris and Schools), Education and Literacy Department Government of Sindh to takeover and complete forfeiture process of the aforesaid Masjid as it belonged to a banned organization in accordance with law.

1. The brief facts of the prosecution case as per FIR are that on 11.11.2020, Inspector Fayyaz Ahmed of PS CTD Karachi received an I.R. No.3683/JUD/03/A/Karachi, in which legal action/proceedings was directed by High-ups to initiate against accused who belongs to one proscribed organization namely JuD and collects funding for such organization at Madressah/Masjid Harmain Shareefain Jamali Goth, Super Highway Malir Karachi, which is used for terrorism activities all over the country, due to which financial assistance is provided to terrorists and such acts falls within the ambit of ATA. Therefore, FIR under Sections 11-J(ii), 11-N, 11-F(i)(ii) of ATA 1997 was registered to the above effect.

2. After completing the usual investigation, charge against the appellant was framed to which he pleaded not guilty and claimed to be tried.

3. The prosecution in order to prove its case examined 05 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in which he denied all allegations of fund raising leveled against him and belonging to any proscribed organization. After appreciating the evidence on record, the learned trial Court convicted the appellant as mentioned above; hence, the appellant has filed this appeal against conviction.

4. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 28.12.2020 passed by the learned trial Court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

5. Learned counsel for the appellant has contended that the prosecution has failed to establish any connection of the appellant with banned organization (JUD); that there is no evidence that the funds were transferred by the appellant to the banned organization (JUD); that there is also no evidence in respect of the property where the mosque was constructed is in the name of appellant; that the mohalla people had moved an application to the High-ups seeking for permission of construction of mosque on the concerned plot and thereafter they constructed it only for the purpose of prayers and Islamic education; that the witnesses, who were produced by the prosecution are not residents of the area where the said mosque is located. He lastly contended that the impugned judgment may be suspended and the appellant may be acquitted of the charge. He has placed reliance on the cases of The State v. Muhammad Babar Lodhi and another (2000 PCr.LJ 1044), Shahmeer v. The State (2020 PCr.LJ 1215) and Muhammad Mansha v. The State (2018 SCMR 772).

6. On the other hand, learned Addl. P.G. Sindh has fully supported the impugned judgment on the basis of evidence produced by the prosecution before the trial Court.

7. We have heard the learned counsel for the appellant as well as learned Addl. P.G. Sindh and perused the material available on record with their able assistance.

8. The FIR was registered on the basis of I.R No. 3683/JUD/03/A/Karachi, as mentioned in the FIR and deposed by the complainant before the trial court, however, the said I.R was not produced by the prosecution before the trial court nor is there any evidence that it was collected by the investigation officer during the investigation of the case. The name of appellant has not transpired in the FIR and there is no allegation that the appellant was collecting the funds for the proscribed organization. The prosecution also failed to establish that by whom the I.R was prepared and the same person was not called as a witness. The complainant during cross-examination admitted that he have gone through the contents of I.R for about 10/15 minutes and no specific name of any person was available in such I.R. Complainant further admitted in his cross-examination that no specific material regarding JUD was obtained during site inspection of the concerned Masjid which he conducted after the registration of FIR.

9. After the FIR investigation officer Ali Hyder proceeded towards the Masjid/Madressah Harmain Shareefain and as per his deposition appellant was not available in the Masjid and he knocked the door of the house adjacent to Masjid and collected some documents from Mst. Sakina the wife of the appellant. Mst. Sakina was not examined by the I.O nor was she produced before the trial court. Investigation officer also captured some photo graphs of the Masjid and the same were exhibited in the evidence before the trial court but he did not collect any material which reflects that the said Masjid belonged to any banned organization or was being used by the same. The photo graphs so captured by the investigation officer also do not indicate any substance in respect of any connection with the banned organization. The investigation officer examined two private persons namely Muhammad Arif and Muhammad Akbar. Only Muhammad Arif was examined as PW- 2 who also has not disclosed a single word in his evidence that appellant was/is collecting funds for JUD. During cross-examination he stated that "it is correct to suggest that I do not know whether Ghulam Rasool Rabbani (appellant) belongs to Ahl-e-Hadees." which reflects that PW Muhammad Arif was not in knowledge that to which sect or organization appellant belongs. Except this witness prosecution has no witness who testifies that the appellant belongs to banned organization JUD and evidence of this witness is not of such standard to maintain the conviction.

10. As per the case of the prosecution that at the time of arrest of the appellant some article which includes receipt of the funds/chanda were recovered from the appellant and were exhibited in the evidence through mashir H.C Kamran Yakoob to prove the case but investigation officer failed to collect evidence in respect of donors and even the names of the persons who donated the funds nor the amount on receipt is disclosed by the prosecution. In one receipt it is stated that amount of Rs. 500/- is mentioned was donated by Jamia Masjid Muhammadi wa Madressah Taleem-ul-Quran wa Hadees Luqman of Shahdad pur but the investigation officer had not inquired from the said donor to prove that the amount of Rs. 500/- was donated to the appellant by the said donor. The investigation also stated that the wife of the appellant herself produced certain documents which includes one channda book in the name of Baab-ul-Harmain Shareefain, out of which one receipt was issued but the amount and the name of such donor is also not been disclosed by the mashir and the investigation officer. The mashir Kamran Yakkob also admitted during the cross-examination that the chanda receipts recovered from the appellant at the time of his arrest were not related to JUD (the banned organization). The receipts were also not sent by the investigation officer to the handwriting expert to prove that the handwriting on the receipt is of the appellant. The investigation officer admitted during cross-examination that he inspected the Masjid for about 50 minutes and during site inspection he had not found any material, banner, literature with regard to JUD the banned organization. The investigation officer during his cross-examination also admitted that no monogram or name of JUD is available upon the receipts which were recovered during arrest of the accused.

11. The evidence of PW-4 Ghulam Hyder is also not helpful to the prosecution as this witness has not deposed a single word about the involvement of the appellant for having any relation with JUD or collecting the funds for the said banned organization. The documents produced by this witness appear to be doubtful as they do not state the date of their issuance and the name of their purchaser. Even otherwise the witness has admitted during cross-examination that "It is correct to suggest that name of Jamia masjid Harmain Sharefain is not mentioned in Ex. 08/B-1." Such fact has also been admitted by the investigation officer during his cross-examination. Further this witness being the District Education Officer Higher Secondary south/ Administrator of Maderssah/Schools/Masjid of proscribed Organization of Sindh has not deposed a single word in respect of affiliation/registration of the Masressah of appellant with the JUD (banned organization).

12. The investigation officer Ali Hyder stated in his cross-examination that whoever came to meet accused during his custody disclosed that he is not associated with JUD and he recorded their statements under section 161 Cr.P.C and as per his evidence such reference is available in the contents of charge sheet, however, he stated that only one Muhammad Hassan disclosed about the association of accused with JUD. The said Muhammad Hassan was not examined before the trial court. On the reassessment of entire evidence it appears that there are several other doubts in the case of prosecution which we deem not necessary to discuss in presence of above discussed material points/doubts as the apex Court has held in several judgments that if a single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.

13. It is well settled by now that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Honourable Supreme Court that "In the criminal trial it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution." Honourable Supreme Court in another case of Shamoon alias Shamma v. The State (1995 SCMR 1377) held that "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case.......Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise." Reliance is also placed on the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).

14. Keeping in view the said golden rule of giving benefit of doubt to an accused person for safe administration of criminal justice, we are firmly of the opinion that all the evidence discussed above is completely unreliable and utterly deficient to prove the charge against the appellant beyond reasonable doubt. Resultantly, the Appeal is allowed and the Judgment dated 28.12.2020 passed by the Court of Judge Anti-Terrorism No.XII, Karachi Special case No. 344/2020 arising out of Crime No.159 of 2020, registered at Police Station CTD, Karachi, under sections 11-J (ii), 11-00, 11-00, 11-Q, 11-N, of ATA 1997 is set aside and the appellant Ghulam Rasool Rabbani son of Muhammad Abdullah is acquitted of the charges. He shall be released forthwith, if he is not required to be detained in some other custody case.

15. The appeal is disposed of in the above terms and as such the CP.No.3947 of 2021 is also disposed of as infructuous.

jk/ G-23/Sindh Appeal allowed.

2024 M L D 1073

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Ghulam Mustafa---Appellant

Versus

The State---Respondents

Criminal Jail Appeal No. 661 and Confirmation Case No. 17 of 2021, decided on 22nd September, 2022.

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

----S. 376---Rape---Appreciation of evidence---Benefit of doubt---Delay of six days in lodging FIR---Consequential---Accused was charged for committing rape with the daughter of the complainant---Record showed that the FIR was lodged six days after the incident which ordinarily might have been fatal to the prosecution case---However, in rape and kidnapping cases the complainant in often given some leeway in lodging the FIR as in such cases the main concern was for the family is to search for the missing person or attend to the sexually assaulted minor at hospital as had been explained in the instant case---However, in present case the accused was named by the victim four days after the incident at the time of her discharge from hospital and yet it still took a further two days for the father to register the FIR which put the Court to some caution---Circumstances established that the prosecution had not proved the charge against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Muhammad Afzaal v. The State 2019 MLD 1707; Saleem and others v. The State and others 2021 MLD 1184; Muhammad Javed v. The State 2019 SCMR 1920; Mst. Sughran Bibi v. The State PLD 2018 SC 595; Abdul Ghafoor v. The State 2000 SCMR 919; Babar v. The State 2020 SCMR 761; Fayyaz Ahmad v. The State 2017 SCMR 2026; Azeem Khan v. Mujahid Khan 2016 SCMR 274 and Naveed Asghar v. State PLD 2021 SC.600 ref.

Irfan Ali Sher v. The State PLD 2020 SC 295 and Zahid another v. The State 2020 SCMR 590 rel.

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

----S.376---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Rape---Appreciation of evidence---Benefit of doubt---Victim not produced to give evidence---Consequential---Accused was charged for committing rape with the daughter of the complainant---Record showed that the victim was not produced by the prosecution despite her being about eight years of age and since the accused was known to her as a relative she could easily have identified him as the person who had sexually assaulted her/raped her---Thus, there was no eye witness to the sexual assault/rape---With no eye witness to the rape as such the prosecution case was based on circumstantial evidence which the court must view with great care and caution---Circumstances established that the prosecution had not proved the charge against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

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

----S. 376---Rape---Appreciation of evidence---Benefit of doubt---Last seen evidence not believable---Accused was charged for committing rape with the daughter of the complainant---Complainant stated in his evidence in chief that, on 12.07.2017 at about 06.30 pm the accused took away his daughter (the victim) on the pretext of buying for her some candies---At 07.30 pm when the accused brought his daughter back she was bleeding and the accused also threatened and harassed her---Accused disclosed that his daughter had suffered injury on account of falling over---However, in his cross examination complainant stated that when accused took his daughter with him he was not at home and he found his daughter at a doctor's clinic---As such, neither did the complainant see the accused leaving with his daughter nor coming back with his daughter and as such his evidence could not qualify as last seen evidence---No other witness saw the victim leaving her house with the accused---Predominant number of witnesses stated that the accused was with the victim when he brought her home however only one witness put the daughter at the house of accused on the fateful day which again was the complainant who stated that the owner of the house of accused disclosed to him that the victim came to him for getting light---Owner however was not examined and as such that part of the complainant's evidence was hearsay and inadmissible especially, as there was no reason for the owner not to be called as a witness in support of the prosecution case which might at least have led to there being some last seen evidence---As such, there was no last seen circumstantial evidence which at any rate was the weakest form of evidence---Circumstances established that the prosecution had not proved the charge against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

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

----S.376---Rape---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Accused was charged for committing rape with the daughter of the complainant---Record showed that the evidence of three out of the six witnesses, i.e., father of the victim, wife of the accused and mother of the victim was contradictory in how the victim returned home in an injured condition and her level of consciousness---Complainant contradicted himself in his cross examination in a material way with regard to that aspect of the case---With regard to wife of accused, she stated in her evidence that she was at her mother's house when a young boy told her that the victim was lying in a gali near her mother's house---Said witness and her mother came out of her house and saw the victim bleeding in an unconscious condition so they took her to the doctor---Significantly the mother of said witness was not called as a witness to corroborate her story which was at odds with the evidence of mother of the victim who stated in her evidence that on 12.07.2017 the victim came into the house and her condition was not fit and blood was oozing from her private parts and her blood was stained on her shalwar in the back---In her evidence her daughter appeared to be conscious---In any event with regard to such aspect of the case wife of the accused and mother of the victim completely contradicted each other in a material way which casted doubt on their credibility and reliability of their evidence as with the evidence of the complainant with regard to such aspect of the case---Circumstances established that the prosecution had not proved the charge against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

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

----S.376---Rape---Appreciation of evidence---Benefit of doubt---Non-recovery of incriminating material---Consequential---Accused was charged for committing rape with the daughter of the complainant---With regard to the blood and semen on the Shalwar of the accused that was removed from his house by his annoyed wife five days after the incident and given to the police, interestingly, no blood was found from the house of the accused which begged the question whether the sexual assault/rape actually took place in his house---Blood and semen was sent to the Chemical Examiner nine days after the incident and remained with the Chemical Examiner for about eleven months---Most witnesses stated that the accused was with the bloodied victim from the time he brought her home to taking her to the local doctor, then to civil hospital and a medical center so it might be that the blood on his shalwar came from the victim during that period although that was not conclusive---With regard to the human sperm being found on the shalwarof accused that was probably the strongest piece of circumstantial evidence against the accused however the shalwar was not kept in safe custody and although sperm had been found on his shalwar there was no evidence that the sperm belonged to him---Even if the sperm did belong to accused it could have been planted by his wife who was annoyed with him, for not living with him and wanted a divorce---Circumstances established that the prosecution had not proved the charge against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Imtiaz Ali Channa for appellant.

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

Date of hearing: 19th, September, 2022.

jUDGMENT

Mohammad Karim Khan Agha, J.---The appellant Ghulam Mustafa son of Badi ur Rehman has preferred the instant appeal against the judgment dated 23.11.2021 passed by VIth Additional District and Sessions Judge, Karachi West in Special Case No.44 of 2018 arising out of Crime No.296 of 2017 under section 376 P.P.C registered at P.S. Docks, Karachi whereby the appellant was convicted and sentenced to death subject to confirmation by this court along with fine of Rs.500,000/- payable to the victim in view of section 545 subsections (a) and (b) Cr.P.C. In case of default in payment of fine he shall undergo R.I. for a further period of 06 months.

1. The brief facts of the case are that on 19.07.2017 at about 1500 hours, complainant namely Noor Muhammad son of Jabir Malook lodged FIR No.296/2017 under section. 376 P.P.C at police station Docks, wherein he stated that on 12.07.2017 at about 1830 hours, he was available with his family, when his Saandu namely Ghulam Mustafa son of Badi ur Rehman resident of House situated at Muhammadi Colony, Karachi, came to his house and took his daughter namely Baby Muskan, aged about 08 years on the pretext of buying her sweets. At about 1930 hours, his daughter Muskan returned at her house crying with blood on her shalwar. He took her to the area doctor and then went at children ward, Jinnah Hospital, Karachi for her medical treatment. After some time, he came to know that the rape has been committed with his daughter Muskan and she also disclosed that her Khalu Ghulam Mustafa has committed rape with her, hence this FIR.

2. After completion of investigation I.O. submitted charge sheet against the accused person to which he pleaded not guilty and claimed trial.

3. The prosecution in order to prove its case examined 6 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in which he denied all the allegations leveled against him. After appreciating the evidence on record the trial court convicted the appellant and sentenced him as stated earlier in this judgment hence, the appellant has filed this appeal against his conviction.

4. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

5. Learned counsel for the appellant has contended that the appellant is innocent and has been falsely implicated in this case at the behest of his wife PW 3 Begum KuIsom whom he had quarreled with hence the 6 day delay in lodging the FIR during which period consultation took place with the complainant, PW 3 his annoyed ex wife and PW 4 the mother of the victim all of whom were related to the victim and against him; that there was no eye-witness to the murder; that there is no last seen evidence; that the evidence of the witnesses suffer from material contradictions and cannot be safely relied upon and thus for any or all of the above reasons the appellant should be acquitted of the charge by being extended the benefit of the doubt. In support of his contentions he placed reliance on the cases of Muhammad Afzaal v. The State (2019 MLD 1707), Saleem and others v. The State and others (2021 MLD 1184), Muhammad Javed v. The State (2019 SCMR 1920) and an unreported Judgment of this Court Zai nul-Aabdin v. The State (Criminal Jail Appeal No.117 of 2021 dated 15.08.2022).

6. On the other hand learned Additional Prosecutor General Sindh appearing on behalf of the State has fully supported the impugned judgment. In particular he has contended that the delay in the FIR was not fatal to the prosecution case; that the last seen evidence connects the accused to the crime which is corroborated by the blood and semen which was found on the accused Shalwar and the medical evidence and has preyed for the dismissal of the appeal. In support of his contentions he has placed reliance on the cases of Irfan Ali Sher v. The State (PLD 2020 SC 295), Mst. Sughran Bibi v. The State (PLD 2018 SC 595), Zahid and another v. The State (2020 SCMR 590), Abdul Ghafoor v. The State (2000 SCMR 919), Babar v. The State (2020 SCMR 761) and Fayyaz Ahmad v. The State (2017 SCMR 2026).

7. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by learned counsel for the appellant, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

8. Before proceeding further we are acutely aware that this is a very heinous offence whereby a minor girl has been raped in a most brutal manner which crime offends the very core of society and humanity however, as Judges we have to put such aspects aside and decide the guilt or innocence of the appellant by dispassionately assessing the evidence before us and coming to a decision which is supported by the evidence on record and the governing law and not by our emotions or own personal feelings. We can only be guided by the evidence and the law and nothing else. In this respect we refer to the case of Azeem Khan v. Mujahid Khan (2016 SCMR 274) which held at P.290 Para 32 as under;

"Similarly, mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. In getting influence from the nature of the crime and other extraneous consideration might lead the Judges to a patently wrong conclusion. In that event the justice would be casualty".

1. This position was reiterated in the later case of Naveed Asghar v. State (PLD 2021 SC.600) in the following terms;

"The ruthless and ghastly murder of five persons is a crime of heinous nature; but the frightful nature of crime should not blur the eyes of justice, allowing emotions triggered by the horrifying nature of the offence to prejudge the accused. Cases are to be decided on the basis of evidence and evidence alone and not on the basis of sentiments and emotions. Gruesome, heinous or brutal nature of the offence may be relevant at the stage of awarding suitable punishment after conviction; but it is totally irrelevant at the stage of appraising or reappraising the evidence available on record to determine guilt of the accused person, as possibility of an innocent person having been wrongly involved in cases of such nature cannot be ruled out. An accused person is presumed to be innocent till the time he is proven guilty beyond reasonable doubt, and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond reasonable doubt on the basis of legally admissible, confidence inspiring, trustworthy and reliable evidence. No matter how heinous the crime, the constitutional guarantee of fair trial under Article 10A cannot be taken away from the accused. It is, therefore, duty of the court to assess the probative value (weight) of every piece of evidence available on record in accordance with the settled principles of appreciation of evidence, in a dispassionate, systematic and structured manner without being influenced by the nature of the allegations. Any tendency to strain or stretch or haphazardly appreciate evidence to reach a desired or popular decision in a case must be scrupulously avoided or else highly deleterious results seriously affecting proper administration of criminal justice will follow. It may be pertinent to underline here that the principles of fair trial have now been guaranteed as a Fundamental Right under Article 10A of the Constitution and are to be read as an integral part of every sub-constitutional legislative instrument that deals with determination of civil rights and obligations of, or criminal charge against, any person.".

1. At the outset based on our reassessment of the prosecution evidence especially the medical evidence we find that the prosecution has proved beyond a reasonable doubt that on 12:07.2017 between 1630 and 1930 hours baby Muskan (the victim) aged 8 years of age was subject to sexual assault/rape most probably in the area of medina Chowk near Saleem Machi Ka Wara Karachi.

2. The only question left before us therefore is whether it was the appellant who sexually assaulted/raped the victim at the said time, date and location?

3. After our reassessment of the evidence we find that the prosecution has NOT proved beyond a reasonable doubt the charge against the appellant for which he was convicted keeping in view that each criminal case is based on its own particular facts, circumstances and evidence for the following reasons and allow his appeal;

(a) The FIR was lodged 6 days after the incident which ordinarily might have been fatal to the prosecution case. However the superior courts in rape and kidnapping cases have often give the complainant in such like cases some leeway in lodging the FIR as in such cases the main concern is for the family to search for the missing person or attend to the sexually assaulted minor at hospital as has been explained in this case. In this respect reliance is placed on the cases of Zahid (Supra) and Irfan Ali Sher (Supra). We do note however that in this particular case the appellant was named by the victim 4 days after the incident at the time of her discharge from hospital and yet it still took a further two days for the father to register the FIR which puts us to some caution.

(b) The best evidence namely that of the victim was not produced by the prosecution despite her being about 8 years of age and since the appellant was known to her as a relative she could easily have identified him as the person who had sexually assaulted her raped her. Thus, there is no eye-witness to the sexual assault/rape.

(c) With no eye-witness to the rape as such the prosecution case is based on circumstantial evidence which the court must view with great care and caution.

In this respect reliance is placed on the case of Azeem Khan V Mujahid Khan (2016 SCMR 274) which held as under;

"In cases of circumstantial evidence, the Courts are to take extraordinary care and caution before relying on the same. Circumstantial evidence, even if supported by defective or inadequate evidence, cannot be made basis for conviction on a capital charge. More particularly, when there are indications of design in the preparation of a case or introducing any piece of fabricated evidence, the Court should always be mindful to take extraordinary precautions, so that the possibility of it being deliberately misled into false inference and patently wrong conclusion is to be ruled out, therefore hard and fast rules should be applied for carefully and narrowly examining circumstantial evidence in such cases because chances of fabricating such evidence are always there. To justify the inference of guilt of an accused person, the circumstantial evidence must be of a quality to be incompatible with the innocence of the accused. If such circumstantial evidence is not of that standard and quality, it would be highly dangerous to rely upon the same by awarding capital punishment. The better and safe course would be not to rely upon it in securing the ends of justice."

Likewise in the case of Fayyaz Ahmed v. State (2017 SCMR 2026) the great care and caution in which circumstantial evidence needed to be scrutinized was emphasized especially when dealing with a capital case in the following terms;

"To believe or rely on circumstantial evidence, the well settled and deeply entrenched principle is, that it is imperative for the Prosecution to provide all links in chain an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. The present case is of such a nature where many links are missing in the chain.

To carry conviction on a capital charge it is essential that courts have to deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon as we have noticed in some cases thus, very minute and narrow examination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the case beyond all reasonable doubts, resting on circumstantial evidence. "Reasonable Doubt" does not mean any doubt but it must be accompanied by such reasons, sufficient to persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows. To draw an inference of guilt from such evidence, the Court has to apply its judicial mind with deep thought and with extra care and caution and whenever there are one or some indications, showing the design of the Prosecution of manufacturing and preparation of a case, the Courts have to show reluctance to believe it unless it is judicially satisfied about the guilt of accused person and the required chain is made out without missing link, otherwise at random reliance on such evidence would result in failure of justice".

It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however, if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that case Courts have to discard and disbelieve the same." (bold added)

In this case it is pertinent to note that PW 3 Begum Kulsoom who is the wife of the accused seems to have reason to falsely implicate her husband who is the accused. In her own evidence she has admitted that she had quarreled with her husband and for the last two days before the incident she had been staying with her mother and that after the incident she had filed suit for divorce from her husband the accused. It is notable that her evidence is one of three separate and differing sets of evidence of how the victim returned home and significantly she was the one who handed over her husband's blood and semen stained shalwar 5 days after the incident despite her not knowing what he was wearing that day. In addition she seems to have travelled from Karachi to Mirphurkas to point out the accused at a petrol pump where he appears to have remained for about 7 hours which does not appeal to logic, common sense or reason. Was he waiting for her to come and point him out for 7 hours at Mirphurkas at a petrol station? Even otherwise her involvement in the investigation seems to be some what excessive as she is mashir in some cases and her involvement in the case appears to be even greater than the mother and father of the victim. Thus we are put on extreme caution regarding the circumstantial evidence especially that provided by PW 3 Begum Kalsom the wife of the accused based on the particular facts and circumstances of this case where there is a possibility of planted evidence by the wife against the accused husband.

Turning to the circumstantial evidence.

(d) The learned APG claims that there is last seen evidence to link the appellant to the victim. The test for last seen evidence has been set out in the following cases in the following terms and as can be seen even if the test is met cannot alone be used to convict a person in a capital case without corroborative evidence from an unimpeachable source as it is the weakest type of evidence;

(i) In Fayyaz's case (Supra) it was held as under regarding last seen evidence;

"The last seen evidence is one of such categories of evidence. In this category of cases some fundamental principles must be followed and the Prosecution is under-legal obligation to fulfill the same, some of which may be cited below:-

(i) There must be cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused and those reasons must be palpable and prima facie furnished by the Prosecution.

(ii) The proximity of the crime scene plays a vital role because if within a short distance the deceased is done to death then, ordinarily the inference would be that he did not part ways or separated from the accused and onus in this regard would shift to the accused to furnish those circumstances under which, the deceased left him and parted ways in the course of transit.

(iii) The timing of that the deceased was last seen with the accused and subsequently his murder, must be reasonably close to each other to exclude any possibility of the deceased getting away from the accused or the accused getting away from him.

(iv) There must be some reasons and objects on account of which the deceased accompanied the accused for accomplishment of the same towards a particular destination, otherwise giving company by the deceased to the accused would become a question mark.

(v) Additionally there must be some motive on the part of the accused to kill the deceased otherwise the Prosecution has to furnish evidence that it was during the transit that something happened abnormal or unpleasant which motivated the accused in killing the deceased.

(vi) The quick reporting of the matter without any undue delay is essential, otherwise the prosecution story would become doubtful for the reason that the story of last seen was tailored or designed falsely, involving accused person.

Beside the above, circumstantial evidence of last seen must be corroborated by independent evidence, coming from unimpeachable source because uncorroborated last seen evidence is a weak type of evidence in cases involving capital punishment.

(vii) The recovery of the crime weapon from the accused and the opinion of the expert must be carried out in a transparent and fair manner to exclude all possible doubts, which may arise if it is not done in a proper and fair manner.

(viii) The Court has also to seriously consider that whether the deceased was having any contributory role in the cause of his death inviting the trouble, if it was not a pre-planned and calculated murder. "(Bold added)

(ii) In the later case of Muhammed Abid v. State (PLD 2018 SC 813) which delved further into the doctrine of "last seen together" evidence it was held as under at P.817 Para 6:

"The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires 1. cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. proximity of the crime scene. 3. small time gap between the sighting and crime. 4. no possibility of third person interference 5. motive 6. time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime" (bold added).

(e) Returning to the case in hand.

The question is whether there was even any last seen evidence; PW 1 Noor Muhammed who is the complainant in this case states in his evidence in chief that, "On 12.07.2017 at about 1830 hours the accused took away his daughter (the victim) on the pretext of buying her some candies. At 1930 hours when the accused brought his daughter back she, was bleeding and the accused also threatened and harrased her. The accused disclosed that his daughter had suffered injury on account of falling over" However, in his cross examination he states that "when accused took Muskan with him I was not at home and he found his daughter at the Dr's clinic." As such we find that neither did the complainant see the appellant leave with his daughter nor come back with his daughter and as such his evidence cannot qualify as last seen evidence. No other witness saw the victim leave her house with the appellant.

(f) A predominant number of witnesses state that the appellant was with the victim when he brought her home however only one witness puts the daughter at the appellant's house on the fateful day which again is the complainant who states that the owner of the appellant's house disclosed to him that the victim came to him for getting light. The owner however was not examined and as such this part of the complainant's evidence is hearsay and inadmissible especially as there was no reason for the owner not to be called as a witness in support of the prosecution case which might at least lead to there being some last seen evidence. It also does not appeal to logic, commonsense or reason that the victim who was only 8 years old would ask the owner of the appellant's house for getting light when she did not live in the house as opposed to the adult appellant who did live in the house.

As such we find that there was no last seen circumstantial evidence which at any rate is the weakest form of evidence since the only evidence on record is that the appellant brought the victim home and claims that her injury was on account of a fall. Interestingly Noor Alam who was also living with the complainant according to the complainant called the appellant and told him that the injury was on account of a fall. Again this is only hearsay evidence as Noor Alam was not called as a witness.

(g) It also does not appeal to logic, commonsense and reason that if the appellant had so severely raped the victim to the extent that she had to undergo surgery that he would bring her home with such a lame excuse of a fall especially when no one saw her with her. He must have known that after a medical examination he ran the risk of being exposed. He might have killed her or simply left her in the street rather than running the risk of making himself a potential suspect in a capital case.

(h) As discussed above we also find the evidence of 3 out of the 6 witnesses PW 1 Noor Muhammed (father of the victim), PW 3 Begum Kulsom (wife of the accused) and PW 4 Marian (wife of PW 1, mother of the victim and sister of PW 2 Begum Kulsom) to be contradictory in how the victim returned home in an injured condition and her level of consciousness. PW 1 's evidence we have already discussed and find that he contradicted himself in his cross examination in a material way with regard to this aspect of the case. With regard to PW 3 Begum Kulsom she states in her evidence that she was at her mother's house when a young boy told her that the victim was lying in a gali near her mother's house. She and her mother came out of her house and saw the victim bleeding and in an unconscious condition so they took her to the Dr. Significantly her mother was not called as a witness to corroborate her story which is at odds with the evidence of PW 3 Mariam who is the mother of the victim who states in her evidence that on 12.07.2017 the victim came into the house and her condition was not fit and blood was oozing from her private parts and her blood was stained on her shalwar in the back the present accused Mustafa came in the house. In her evidence her daughter appears to be conscious. In any event with regard to this aspect of the case PW 3 Begum Kulsom and PW 4 Marian completely contradict each other in a material way which castes doubt on their credibility and reliability of their evidence as with the evidence of PW 1 the complainant with regard to this aspect of the case.

(i) With regard to the blood and semen on the Shalwar of the accused this was removed from his house by his annoyed wife PW 3 Begum Kalsom 5 days after the incident and given to the police. Interestingly no blood was found from the house of the appellant which begs the question whether the sexual assault/ rape actually took place in his house. This blood and semen was sent to the chemical examiner 9 days after the incident and remained with the chemical examiner for about 11 months. Most witnesses state that the accused was with the bloodied victim from the time he brought her home to taking her to the local Dr, then to civil hospital and JPMC so it may be that the blood on his shalwar came from the victim during this period although this is not conclusive. With regard to the human sperm being found on his shalwar this is probably the strongest piece of circumstantial evidence against the accused however the shalwar was not kept in safe custody and although sperm has been found on his Shalwar there is no evidence that the sperm belonged to him. Even if the sperm did belong to him it could have been planted by his wife PW 3 Begum Kalsom who was annoyed with him, not living with him and wanted a divorce.

1. Thus, based on the sole piece of potential circumstantial evidence of semen being found on the appellant's Shalwar which was not kept in safe custody, might not have been his and might have been planted by his wife we are not persuaded to uphold the conviction of the appellant. We find that the prosecution has not proved the charge against the appellant beyond a reasonable doubt and by extending the benefit of the doubt to the appellant we hereby acquit him of the charge, allow his appeal and answer the confirmation reference in the negative.

2. The appeal and confirmation reference are disposed of in the above terms.

JK/G-29/Sindh Appeal allowed.

2024 M L D 1105

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

Ramz Ali Gopang---Appellant

Versus

The State---Respondent

Special Anti-Terrorism Jail Appeal No. D-139 of 2016, decided on 15th December, 2022.

Penal Code (XLV of 1860)---

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Kidnapping or abduction for extorting property, valuable securities etc., possession of illicit weapon, act of terrorism---Appreciation of evidence---Conviction, alteration of---Accused was charged for kidnapping the son of complainant for ransom---Record showed that accused demanded ransom of Rs.200,000/- on mobile phone from complainant then complainant sent Rs.23000/- to accused through an online mode on cellular number given by accused---Complainant could not make arrangement of remaining ransom then he went to police station and lodged FIR---Complainant, after registration of FIR, collected information from mobile company and traced the location of the accused and he was arrested and his son was recovered---Abductee boy had deposed that he was kidnapped by accused and other co-accused and confined at different places---Abductee had further deposed that accused was arrested by the police and pistol was recovered from him---Private witness was also examined before the Trial Court and he had also narrated the same story and implicated the accused---Complainant, abductee and witness were cross-examined at length by defence, but their testimony could not be shaken on material points---Re-examination of the evidence showed that offence under S.365, P.P.C, was proved by the prosecution but conviction under S.365-A, P.P.C, was not sustainable under the law for the reasons that complainant had deposed that accused had telephoned him for payment of the ransom of Rs. 200,000/-, and he paid Rs.23,000/- to the accused through an online mode but record of telephone used by the accused and complainant had not been produced before the Trial Court, to satisfy the Court that accused had actually made demand for ransom---Prosecution had failed to prove that complainant paid Rs.23,000/- to the accused as ransom---No documentary evidence/call data had been produced before the Trial Court---Unfortunately, Investigation Officer failed to collect the call data regarding conversation/contact between the accused and complainant, besides record of online transfer---Appeal was partly allowed by converting the conviction of the accused from S.365-A, P.P.C, to 365, P.P.C, and he was sentenced to seven years.

Shah Zaib and others v. The State 2022 SCMR 1225 rel.

Mehfooz Ahmed and Farhan Ali for appellant.

Syed Sardar Ali Shah, Additional Prosecutor General for State.

Date of hearing: 15th December, 2022.

Judgment

Naimatullah Phulpoto, J.---Appellant Ramz Ali Gopang was tried by learned Judge, Anti-Terrorism Court, Naushahro Feroze, in Special Case Nos. 49/2015 and 09/2016, arisen out of case/FIR bearing No. 43/2015, registered at P.S. Seeta Road Dadu, for offences under Section 365-A, P.P.C read with Section 7 ATA, 1997 and FIR No. 408 of 2015, registered at P.S. Ferozeabad Karachi, for offence punishable under Section 23(1)(a) Sindh Arms Act, 2013, respectively. On the conclusion of trial, vide judgment dated 30.07.2016, learned Judge Anti-Terrorism Court, Naushahro Feroze, convicted the appellant for offence under Section 365-A P.P.C read with Section 7(1)(e) of ATA, 1997 and sentenced him to imprisonment for life; besides for offence under Section 23(1)(a) read with Section 25 of Sindh Arms Act, 2013 to suffer ten years R.I.

1. Brief facts of prosecution case as recorded by the trial Court in the impugned judgment read as under:-

"The brief facts of the prosecution case as per FIR lodged by complainat Dhani Bux Chandio on 15.06.2015 are that he is farmer and his son Ahsan Ali aged about 10/11 years is studying in fourth Class in Government Middle School Memon Mohalla. On 26.05.2015, he went to school and complainant was available at village. On the same date relative of complainant Bakhshal son of Aandal Khan Chandio informed that he and Ali Hassan Chandio were available at Seeta Road City where son of complainant met with them. They went at the Dargah of Rahmani Nagar for Ziyarat. After Ziyarat they were standing on link Road leading towards Khair Muhammad Baladi. At about 09.00 A.M time four persons and one women whom they identified to be Ramz Ali son of Ghulam Rasool Gopang, Zulfiqar Ali son of Ali Muhammad Lolai, Manthar Ali son of Haji Paryal Kolachi, fourth Mst. Begiyal wife of Haji Paryal Kolachi and one unknown person who will be identified if seen again. Male accused persons took out pistols from fold of Shalwar, accused Manthar Ali took Ahsan Ali and all accused persons went towards village of Khair Muhammad Baladi. Due to fear of weapons relative of complainant did not follow them. Thereafter on such information of Bakhsal Chandio, complainant searched his son Ahsan Ali and did not find any clue. On 03.06.2015 accused Ramz Ali Gopang called and demanded ransom amount of Rs. 2,00,000/- (Two lacs) for release of Ahsan. Complainant party tried to manage ransom amount, but could not manage. Thereafter complainant appeared at Police Station and lodged FIR.

3. Brief facts of the prosecution case Crime No. 408/2015 PS Ferozabad East Karachi lodged by ASI Israr Khan Afridi on behalf of the State are that on the day of incident he alongwith his SHO, subordinate staff, arrested accused Ramz Ali from Tipoo Sultan Road near KESC building in presence of mashirs Ali Hassan and Mohammad Saleem recovered abductee Ahsan Ali from his custody as well as recovered one unlicensed pistol of .30 bore loaded with 5 bullets in magazine. Such memo of arrest and recovery was prepared on spot. Thereafter accused, case property and abductee were brought at Police Station, where he lodged FIR under Sindh Arms Act against the accused on behalf of the State. After usual investigation he submitted challan of the case."

1. On the conclusion of investigation, challan was submitted against the appellant under above referred sections. Trial Court amalgamated main case under Section 365-A P.P.C and 7 ATA, 1997 with connected / offshoot under Section 23(1)(a) of Sindh Arms Act, 2013 in terms of Section 21(m) of ATA, 1997. Trial Court framed charge against the appellant, he pleaded not guilty and claimed to be tried. At the trial, prosecution examined 08 PWs. Trial Court recorded statement of the appellant under Section 342 Cr.P.C in which he claimed false implication and denied the prosecution allegations. Appellant did not lead evidence in his defence and declined to give statement on oath in disproof of prosecution allegations. Trial Court after hearing learned Counsel for the parties, convicted and sentenced the appellant as stated above, hence this appeal has been preferred.

2. Facts of this case as well as the evidence produced before the trial Court find an elaborate mention in the impugned judgment passed by the trial Court and therefore same may not be reproduced here so as to avoid duplication and unnecessary repetition.

3. Mr. Mehfooz Ahmed Awan, learned Counsel for the appellant argued that prosecution story is unbelievable as complainant did not implicate remaining accused named by him in the FIR but implicated appellant only in the commission of offence for mala fide reasons; that prosecution has failed to prove the allegation of abduction for ransom. Lastly, it is submitted that ingredients of Section 365-A P.P.C are not attracted in this case and conviction under Section 7 ATA, 1997 was also unwarranted in law. In support of his contentions, reliance is placed upon the case of Shah Zaib and others v. The State (2022 SCMR 1225).

2024 M L D 1115

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Miss Uzma Amjad Ali and another---Plaintiffs

Versus

Mrs. Saeeda Bano and another---Defendants

Suit Nos. 379 and 749 of 2005, decided on 22nd December 2022.

Specific Relief Act (I of 1877)---

----Ss. 12, 19, 42 & 54---Suit for specific performance of agreement to sell, award of compensation, declaration and injunction---Plaintiffs were real daughters of defendant / mother who claimed to be owners of suit property on the basis of gift in their favour to the extent of 2/3rd share---Defendant / mother executed agreement to sell in favour of defendant / purchaser and received a sum of Rupees Six million as earnest money---Validity---Defendant / mother accepted a substantial amount of Rupees Six million as part payment towards sale price and never returned the same till the amount was deposited in Court---For almost seven years defendant / mother beneficially utilized the money---Defendant / purchaser despite a lacuna in claim for damages was entitled for monetary relief---By invoking S.19 of Specific Relief Act, 1877, if circumstances so permit, monetary compensation can be given while refusing specific performance to plaintiff---High Court declared defendant / purchaser entitled to be compensated---High Court directed the Court official to release the amount along with profits to defendant / purchaser---High Court directed plaintiffs and defendant / mother to pay a sum of Rupees Four million to defendant / purchaser, as all three were jointly beneficiaries of suit property---Suit was decreed accordingly.

Syed Ahmad v. Ali Akbar and others 2021 SCM R 743; Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403; Mst. Saadia v. Mst. Gul Bibi 2016 SCM R 662; Hassan Ali and another v. Mst. Khatija and others 2005 YLR 3198 and Babar Ali v. Arshad Mehmood and 15 others 2021 MLD 1697 ref.

Liaqat Ali Khan and others v. Falak Sher and others PLD 2014 SC 506 and Muhammad Habib and 2 others v. Messrs Humayun Ltd. and 3 others 2015 YLR 2008 rel.

Ikram Ahmed Ansari and Ayaz Ahmed Ansari for plaintiffs (in Suit No. 379 of 2005).

Muhammad Hanif Khatana for Defendant No. 1 (in Suit No. 379 of 2005).

Hasan Khurshid Hashmi and Syed Khurram Nizam for Defendant No. 2 (in Suit No. 379 of 2005).

Hasan Khurshid Hashmi and Syed Khurram Nizam for plaintiff (in Suit No. 749 of 2005).

Ikram Ahmed Ansari and Ayaz Ahmed Ansari for Defendants (in Suit No. 749 of 2005).

Dates of hearing: 13th 21st April and 31st May, 2022.

Judgment

Muhammad Faisal Kamal Alam, J.---The present Lis have been instituted in respect of sale of House No.26, Khayaban-e-Janbaz, Phase-V, Defence Housing Society, DHA, Karachi ("Suit Property"). Plaints contain the following prayer clause_

Suit No.379 of 2005

"a) Judgment and Decree whereby declaring that the Sale Agreement dated 11-2-2005 executed by the Defendant No.1 with the Defendant No.2 for sale of House No.26, Khayaban-e-Janbaz Phase-V, Defence Housing Society Karachi is illegal, void, and without any lawful authority.

b) Judgment and Decree whereby cancelling the said Sale Agreement dated 11-2-2005 in respect of selling of House No.26, Khayaban-e-Janbaz, Phase-V, DHA Karachi being illegal, void, and without any lawful authority.

c) Judgment and Decree whereby granting permanent injunction in favour of Plaintiffs restraining the Defendants Nos.1 and 2 their agents assignees, well wishers / friends, legal heirs or anybody acting on their behalf from executing Sale Deed, transferring selling, leasing conveying, in any manner whatsoever, or creating third party interest in respect of House No.26, Khayaban-e-Janbaz, Phase-V, Defence Housing Society, Karachi or dispossessing the Plaintiffs from the said house/ property.

d) To grant cost of this suit.

e) Any other relief(s), which this Honourable Court may deem fit and proper keeping in view the circumstances of this case."

Suit No.749 of 2005

"(A) direct the Defendants specifically to perform the agreement to sell dated 11.2.2005 and to do all acts necessary to put the Plaintiff in full possession and in case of their failure direct the Nazir to do so; OR, (B) in the alternative, order the Defendants to pay the Plaintiff earnest money and damages amounting to Rs.313,00,000/-.

(C) grant profit/ interest/ mark-up @ 20% per annum on the decretal amount from the date of institution of suit till payment.

(D) Award costs of the proceeding; and

(E) allow any other relief that may be deemed just, fit and proper in the circumstances of the case."

1. Claim of both Plaintiffs (Ms. Uzma Amjad Ali and Mrs. Asma Mehmood), both sisters of Suit No.379 of 2005, is that the Suit Property was illegally sold to Defendant No.2 - Dr. Nafees Zubair ("Purchaser") by Defendant No.1, who is mother of both Plaintiffs, as the latter (mother) earlier gifted 2/3rd shares in the Suit Property to both the Plaintiffs. Thus the sale transaction in favour of the Defendant No.2, vide the Sale Agreement dated 11.02.2005 (Exhibit-11, page 99), is illegal and void ab initio. Subsequently, the above Purchaser also instituted her separate Suit No.749 of 2005 against both Plaintiffs and Defendant No.1, inter alia, to enforce the above Sale Agreement.

2. Defendant No.1 (mother) in her Written Statement has not denied the factum of gift in favour of Plaintiffs (the Donees), while denying the allegations against her about collusion. She has acknowledged that she being lawful owner of only one third of the Suit Property can only sell to the extent of her share. Averred that information about gifting the Suit Property to above Plaintiffs (Donees) was also communicated to the Pakistan Defence Officers Housing Authority [DHA] which was confirmed by it vide Letter No.H/A/2985/408 dated 08.08.1978 (Exhibit 5, with the Affidavit-in-Evidence/examination-in-chief of the said Defendant No.1); this fact was also conveyed to Defendant No.2 - Purchaser, but she without scrutinizing the official record, exerted unjustified pressure on Defendant No.1 to sign the Sale Agreement.

3. The stance of Defendant No.2 is that the Suit No.379 of 2005 is a collusive proceeding between Plaintiffs and their mother, the Defendant No.1 and thus the Plaintiffs have invoked the jurisdiction of this Court with unclean hands. It is stated that before entering into the sale transaction with Defendant No.1, the due diligence was done on behalf of Defendant No.2, in particular, Lease Deed dated 28.05.1988, produced in the evidence as Exhibit P/6, as well as Search Certificates, which show the Defendant No.1 as the sole owner, so also represented by her at the time of entering into the above sale agreement. Total Sale Price was agreed to be Rupees Thirty Million, out of which Rupees Six Million were paid as earnest money to Defendant No.1, in presence of the witnesses; therefore, she cannot resile from her contractual obligation. Averred that any purported gift as alleged by Plaintiffs is an afterthought and a fabricated document.

4. From the pleadings of the parties, following consolidated Issues were framed by the Court vide order dated 11.12.2006_

"1. Whether there was valid and subsisting gift of the property in question by Defendant No.1 in favour of the Plaintiff?

2. Whether the Defendant No.1 was legally entitled to enter into the agreement for the sale of property to the Defendant No.2?

3. Whether the agreement of sale between the Defendant No.1 and Defendant No.2 is enforceable in law? If the answer is in negative, whether such agreement is liable to be cancelled?

1. To what relief, if any, the Plaintiffs in both the suits are entitled to?

2. What should the decree be?

3. M/s. Ikram Ahmed Ansari and Ayaz Ahmed Ansari, Advocates, have argued the case in support of the stance mentioned in the foregoing paragraphs and cited the following case law_

i. 2021 SCMR 743

[Syed Ahmad v. Ali Akbar and others];

ii. 1987 SCMR 1403

[Maulvi Abdullah and others v. Abdul Aziz and others];

iii. 2016 SCM R 662

[Mst. Saadia v. Mst. Gul Bibi];

iv. 2005 YLR 3198

[Hassan Ali and another v. Mst. Khatija and others];

v. 2021 MLD 1697

[Babar Ali v. Arshad Mehmood and 15 others];

1. The above case law primarily relates to the basic ingredients for a valid Gift; that for a Gift (HIBA) under the Muslim Law, written instrument and registration is not mandatory. Specific performance cannot be granted when the property is co-owned by the other persons.

2. Mr. Muhammad Hanif Khatana, Advocate, has also made submissions on behalf of Defendant No.1.

3. M/s. Hassan Khursheed Hashmi and Syed Khurram Nizam, Advocates represented Defendant No.2.

4. On behalf of Plaintiffs, Uzma Amjad deposed. Defendant No.1 - Mrs. Saeeda Bano, also testified. Dr. Nafees Zubair herself appeared to give the evidence, whereas, Naveed-ul-Haq Siddiqui, deposed as Witness No.2 on behalf of Vendee - Dr. Nafees Zubair.

5. Evidence appraised.

6. Plaintiff Uzma Amjad Ali has deposed in favour of her stance that she is one of the Donees and co-owner of the Suit Property. After repayment of loan to the Bank (National Bank of Pakistan - NBP), Redemption Deed dated 18.11.1986 was also executed, naming all the three co-owners / shareholders, that is, Defendant No.1 - Mother, Uzma Amjad Ali and her sister Ms. Asma Amjad Ali - both Plaintiffs of above Lis. The Deed of Redemption dated 18.11.1986, which is a registered instrument, is produced by the said witness as Exhibit P/3 and it contains names of all the three co-owners as deposed by the said witness. She has stated in the evidence that without consent of the Donees, mother / Defendant No.1 entered into the alleged Sale Agreement dated 11.02.2005 with Defendant No.2 (Purchaser), which transaction is illegal because Defendant No.1 (mother) is only co-sharer to the extent of 1/3rd share, whereas, the two sisters (Plaintiffs) have 2/3rd share in the Suit Property.

7. The relevant documents for the present controversy, which are produced in the evidence by Plaintiff Uzma Amjad Ali, are as follows_

| | | | | --- | --- | --- | | Sr.No. | Description of document | Remarks | | 1. | Internal Correspondence of NBP dated 26.04.1978, giving approval to mother / Defendant No.1 to gift the Suit Property in name of her two daughters (Plaintiffs). | Exhibit P/2 | | 2. | Deed of Redemption dated 18.11.1986 between NBP and the three co-owners viz. Mrs. Saeeda Bano, Ms. Asma Amjad Ali and Ms. Uzma Amjad Ali. | Exhibit P/3 | | 3. | Correspondence by mother Mrs. Saeeda Bano (to Secretary DHA) dated 14.06.1978 about gifting the properties to the two daughters. | Exhibit P/4 | | 4. | NOC by DHA dated 19.08.1978 about gift. | Exhibit P/5 | | 5. | Public Notice given by Vendee in daily Dawn of 02.02.2005. | Exhibit P/8 | | 6. | Search Certificate for the period 19.04.1975 to 31.12.1999, showing the names of all three co-owners - Plaintiffs and Defendant No.1 (mother). | Exhibit P/9 | | 7. | Photocopy of the Wealth Statement of father Syed Amjad Ali dated 30.06.1989, showing the Suit property in the name of three ladies (ibid). | X-7 | | 8. | Copy of the subject Agreement to Sell dated 11.02.2005. | Exhibit-11 | | 9. | Copies of Affidavit of Defendant No.1 (mother) to DHA dated 14.02.1978, confirming the gift in favour of the two daughters. | Exhibit D/10 | | 10. | Copies of Affidavit of Defendant No.1 (mother) to DHA dated 08.09.1985, confirming the gift in favour of the two daughters. | Exhibit D/11 (the above two documents are also produced by Defendant No.1 (mother) together with her examination-in-chief / Affidavit-in-Evidence) |

1. Plaintiff Uzma Amjad Ali was cross-examined by the counsel of Defendant No.1 to disprove the allegations she has leveled against Defendant No.1 (her mother); whereas, she was extensively cross-examined by the counsel for the contesting Defendant No.2 (Purchaser; Plaintiff of Suit No.749 of 2005). Sale Agreement in respect of the Suit Property is not disputed; photocopy whereof is produced by the witness in evidence as Exhibit-11. She admitted in her cross-examination that further steps towards gift of the Suit Property, after the issuance of NOC by DHA vide Correspondence of 06.08.1978-Exhibit-P/5, could not be done due to financial reasons. She could not be contradicted, that by way of Redemption Deed, it is clear that the Suit Property was gifted to the two sisters (Plaintiffs in Suit No.379 of 2005) and they are the co-owners along with Defendant No.1. The witness clarified in her cross-examination, that the factum of gift is mentioned in Paragraph-2, Page-2 of the Redemption Deed (Exhibit P/3). She has denied the suggestion that her Parents, viz. Defendant No.1 and her husband demanded balance sale consideration from Defendant No.2 (Purchaser), while denying that higher price from the latter was also demanded.

2. The said witness was not cross-examined on some significant assertions made by her in her Affidavit-in-Evidence / examination-in-chief; for instance, that possession of the Suit Property was handed over to the two sisters, whereafter they rented the same to different Banks by way of different Rent Agreements, which are produced in the evidence as Exhibit P.W-1/11, P.W-1/13 and P.W-1/14. It means that the assertion of witness that Gift of the Suit Property was complete and valid, as the possession was also handed over to them, has been accepted by the Defendant No.2; not cross-examined about Declaration / Affidavit dated 14.02.1978 and 08.09.1985, respectively produced in the evidence as Exhibit D/10 and D/11, pages-125 and 129 of the evidence file, mentioning the fact about gifting the Suit Property to Plaintiffs (Donees).

3. In her testimony the Plaintiff [Donee] has specifically stated that Defendant No.2 (Vendee/Purchaser) had obtained Search Certificate for the period commencing from 04.06.1988 to 10.02.2005, whereas, the Search Certificate dated 04.05.2005, produced by her [Mst. Uzma Amjad] as Exhibit P/9, for the period 19.04.1975 to 31.12.1999, the Suit Property is shown to have been owned by both Plaintiffs, besides, Defendant No. 1. This document - Search Certificate (Exhibit P/9) has recorded transactions in respect of the Suit Property at various dates, including execution of Deed of Redemption (Exhibit P/3) by NBP, mentioning the names of all the three ladies, that is, the two Plaintiffs and Defendant No.1. On this specific statement, the Plaintiff was not cross-examined, which means that her stance has been accepted by Defendants.

4. The Defendant No.1 (Saeeda Bano) while supporting the stance of Plaintiffs with regard to joint ownership, has deposed that she explained the Defendant No.2 - Vendor (Plaintiff in Suit No.749 of 2005) about the true ownership of the Suit Property and showed the documents to said Defendant No.2, her husband and Estate Agent, including Redemption Deed (Exhibit P/3) and Affidavits of Oral Gift (ibid), but Defendant No.2 and her husband and Estate Agent compelled the Defendant No.1 to sign Agreement to Sell (ibid), without consent of her daughters / Plaintiffs (Donees). In her cross-examination, she has reiterated the stance that the Suit Property was in fact gifted to her daughters / Plaintiffs. Execution of above Sale Agreement has been admitted by Defendant No.1 and her assertion that it was done under compulsion and coercion, has been disproved in the evidence. She admitted in cross-examination that she was paid through the Pay Orders, which she deposited in her Bank Account and a cash amount of Rs.5,00,000/- (Rupees Five Lacs only). To a specific question, she stated that in Reply (Exhibit D/3) to the Legal Notice dated 19-4-2005 of Defendant No.2 (Exhibit D/2), it was mentioned that the Defendant No.1 had no intention to sell the Suit Property. She has admitted that no documents were supplied by her to DefendantNo.2 (Vendee) for verification on 11.02.2005 (when the Sale Agreement under challenge was signed). However, to a specific question, the said witness has answered in affirmative that the two Affidavits relating to the Gift (ibid) were shown to Defendant No.2.

5. The Vendee / Defendant No.2 in her examination-in-chief / Affidavit-in-Evidence has stated that after Defendant No.1 received an amount of Rs.500,000/- as advance, she handed over copy of 'B' Lease (Exhibit D/15) to her and the latter also obtained Search Certificates for the period from 04.06.1988 to 31.12.1999 and 01.01.2000 till 10.02.2005. For making further payments as per Agreement, she took loan from her cousin and thus payment through five Pay Orders of total Rs.5.5 Million, was made. She deposed that she had to sell her property for arranging funds to pay off the Defendant No.1. The relevant documents produced by the said Defendant No.2 in her testimonies is as follows_

| | | | | --- | --- | --- | | Sr.No. | Description of documents | Remarks | | 1. | Form 'B' Lease of the Suit Property | Exhibit D/15 | | 2. | Search Certificate covering period from 04.06.1988 to 31.12.1999 | Exhibit D/17 | | 3. | Search Certificate covering period from 01.01.2000 to 01.01.2000 | Exhibit D/18 | | 4. | Legal Notice dated 19.04.2005 by Defendant No.1 to Defendant No.2 (Vendee) | Exhibit D/21 | | 5. | Account maintaining certificate by Askari Commercial Bank Ltd. dated 02.05.2005 | Exhibit D/24 | | 6. | Account maintaining certificate by Bank Al-Habib dated 30.04.2005 | Exhibit D/26 | | 7. | Agreement of Sale between Defendant No.2 and Tajammul Husain containing signature of Defendant No.1 | Exhibit D/29 | | 8. | Transfer Order issued by DHA dated 23.04.2005 of Plot No.63 of Defendant No.2, in favour of Syed Tajammul Husain | Exhibit D/30 | | 9. | Receipt by Defendant No.1 in favour of Defendant No.2, acknowledging payment of Rs.5.5 Million, through Pay Order No.1695260-65 dated 09.02.2005 | Exhibit D/33 | | 10. | Reply dated 02.05.2005 by Defendant No.1 to Legal Notice of Defendant No.2 | Exhibit D/34 |

1. In her cross-examination, she has stated that at the time of negotiation for the sale of the Suit Property, Defendant No.1 and the Plaintiff were present and even the correction is made by Plaintiff herself, but admitted that she (Plaintiff/Donee) did not sign the Sale Agreement neither as Vendor nor witness. She has admitted that all the title documents were checked and she was in possession of the title documents of Suit Property. She did not deny the suggestion that Bank draft was not prepared on 30.04.2015 (time mentioned in the Sale Agreement for payment), because present Lis was filed on 17.03.2005. She has accepted the suggestion that in her Legal Notice (Exhibit D/2), an option was given to settle the matter outside the Court and in reply to the said Legal Notice (Exhibit D/3), said Defendant No.2 was offered to receive back the amount of Rs.6 Million. To a question, she has answered in affirmative that according to Redemption Deed (Exhibit P/3), the property was mortgaged by Mrs. Saeeda Bano (Defendant No.1), whereas, to a specific question that according to Redemption Deed, there are three owners, both Plaintiffs and Defendant No.1, the Defendant No.2 merely replied that Defendant No.1 informed her that she is the sole owner, which is reflected in the Search Certificate obtained by her (Defendant No.2); she did not dispute the above Redemption Deed.

During cross-examination, she was confronted with the Search Certificate dated 04.05.2005 (Exhibit P/9, produced by the Plaintiff in her evidence) and Defendant No.2 did not deny that names of all the three owners are mentioned therein, that is, Plaintiff Uzma Amjad Ali, Mrs. Asma and Defendant No.1; however, counsel for Defendant No.2 has objected to this question that above document has no relevancy. She has admitted that both the Sale Agreements of 31.01.2005 [Exhibit D/19, containing alleged corrections of Plaintiff No.1 (donee)], and of 11.02.2005 (Exhibit P/15) were drafted through her estate agent. To a question about increase in the value of Suit Property, for the purpose of determining of monetary claim of Defendant No.2, she has stated that no valuation certificate is filed but the price increase as pleaded by her is her assessment.

She was also cross-examined by counsel of Defendant No.1. Defendant No.2 has admitted that there is no Sale Agreement between her and Defendants Nos.2 and 3 (in Suit No.749 of 2005), that is, Plaintiffs (Donees) of leading Suit No.379 of 2005.

1. The second witness from the side of Vendor is Naveed ul Haq Siddiqui, who acted as estate agent. The above witness is also a marginal witness for the said Sale Agreement. He corroborated the stance and evidence of Defendant No.1 about sale of the Suit Property in her favour. He has admitted that public notice for sale of the Suit Property was published on 02.02.2005, that is, before the date of Agreement for Sale on 11.02.2005. Acknowledged that title documents of the Suit Property were shown to purchaser / Defendant No.2, but not the Redemption Deed. He did not deny the suggestion that Search Certificates were not obtained for all the periods, while not disputing the authenticity when the Search Certificate (Exhibit P/9) produced by Plaintiff, was shown to him. In his cross-examination to Plaintiff.s counsel, he has reiterated that he sold the above mentioned property to Defendant No.2. He has admitted that he inspected the property documents in the Office of Cantonment Board as it is a leased property.CONCLUSION:

2. The Defendant No.1 entered into the above Sale Agreement with Defendant No.2 in respect of the Suit Property, without any compulsion or coercion; regretfully, to this extent the evidence of Defendant No.1 [the mother] is incorrect, which is unexpected, considering her family background. The said Defendant No.1 admittedly received a sum of rupees six million towards part payment.

3. The title documents of the Suit Property were handed over to Defendant No.2 (Purchaser) and it was her obligation to make the due diligence in respect of the official record. Had the same was properly done; she [the Purchaser] would have come to know that the Suit Property is also co-owned by the two daughters (Plaintiffs in Suit No.379 of 2005); this is further fortified by the Redemption Deed, which is admittedly a registered instrument, mentions the fact about the Gift of the Suit Property to the two Plaintiffs (Donees) so also reflected in the Search Certificate (Exhibit-P/9) produced by the Plaintiff in her testimony and that part of her evidence has been proved. Secondly, it is also an admitted fact that both Plaintiffs / Sisters, who are Donees, neither executed the Sale Agreement in question nor witnesses the same; hence, relief of specific performance cannot be granted to Defendant No.2 (Purchaser), as this defect in the Subject Sale Agreement is incurable. The Suit Property cannot be sold, unless the other two co-owners [Donees] also agreed to sell the same.

Notwithstanding the above illegality, there is another aspect of the case; the claim of damages of Purchaser as an alternative relief. Applying the rule of preponderance, the testimony of Defendant No.2, that she sold her Plot No.63, measuring 600 square yards, to one Tajammul Husain and produced the official document / Transfer Order [issued by DHA] in the evidence (Exhibit D/30), which is of 23.04.2005, that is, around the same time when the subject sale transaction was entered into between the Parties hereto, shows that Defendant No.2 made financial arrangement for making payment to Defendant No.1. The Subject Sale Agreement is of 11.02.2005 and first Legal Notice sent by Defendant No.2 (Purchaser) to Defendant No.1 is of 19.04.2005 (Exhibit D/2), that is, after around two months, which was replied to after two weeks vide a Correspondence dated 02.05.2005 (Exhibit D/3, at pages-341 and 343 of the Evidence File), in which it was offered that Defendant No.1 is ready to pay back / return the entire amount to Defendant No.2. It means that the Purchaser [Defendant No.2] was in fact given a chance to close the deal and get back her entire amount; but, it did not happen. Eventually, the dispute resulted in present litigation.

1. The Claim of damages is mentioned in Paragraph-9 of the plaint of Suit No.748 of 2005 [filed by the Purchaser]. It is a settled rule that one who is claiming damages and compensation for the wrong done, has to show that what mitigating steps, the Claimant (in the present case, the present Defendant No.2 as Plaintiff-Purchaser) has taken to prevent losses, or, at least to minimize it.

The above discussion, on the contrary, concludes that the said Purchaser [Defendant No.2] failed to take reasonable action; as due diligence was not done by Plaintiff/Defendant No.2 (Purchaser) while entering into the subject Sale Transaction, inter alia, even complete public record in respect of the Suit Property was not obtained, which could have been obtained by the Purchaser [Defendant No.2/Plaintiff] through search in normal course of business.

Secondly, the said Purchaser has claimed Rs.300,000/-, as one of the components of damages being advance given to the Estate Agent; conversely, the latter [Naveed-ul-Haq], in his cross-examination, has admitted that he had not received any commission, as the deal was not finalized. This admission has contradicted and disproved this component of damages claimed by Plaintiff (Purchaser); further damaging her [Purchaser.s] claim of damages.

Thirdly, the Defendant No.1 through her above Reply/correspondence did offer to return the entire payments to the Purchaser [Defendant No.2], within next couple of months, which was not accepted. But, at the same time, in view of the above discussion, the Purchaser is entitled for damages, quantum whereof is determined in the following Paragraphs.

1. Issue wise determination is as under_

ISSUE NO.1:

1. The rule laid down in the case law cited by Plaintiffs. counsel is applicable to the facts of the present case, that all the ingredients of a valid Gift / HIBA exist, that is, mentioning of the fact of Gift in the registered instrument, viz. the above Redemption Deed, besides, other documents [ibid], acceptance of gift and possession, as Donees have also rented out the properties through Lease Agreements, which documents produced in the evidence are not disputed.

ISSUES NOS.2 AND 3:

1. In view of the above finding, Defendant No.1 was not legally entitled to enter into the Agreement for Sale of the Suit Property with Defendant No.2 and the said Agreement - Exhibit-11, is not enforceable in the present circumstances. Consequently, the said document is liable to be adjudged as cancelled, being void ab initio. Consequently, the original whereof [the Sale Agreement] be delivered up to the learned Nazir of this Court for its cancellation.

ISSUES NOS.4 AND 5:

2024 M L D 1134

[Sindh]

Before Muhammad Iqbal Kalhoro and Arbab Ali Hakro, JJ

Sultan bahaduR Yousfzai---Appellant

Versus

The State---Respondent

Special Criminal Appeal No. D-82 of 2019, decided on 7th December, 2023.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody of samples not proved---Prosecution case was that 57 kilograms charas was recovered from the vehicle driven by the accused---In this case, the prosecution had examined only two witnesses---One was the complainant/Investigation Officer of the case and other was the Mashir who had witnessed recovery allegedly effected in his presence and which he had verified in his evidence---Although, the record verified that the whole team which participated in the raid comprised at least 10 persons including two senior officials with the rank of Assistant Excise and Taxation Officer, but the prosecution decided not to put any of them in the witness box to verify the story---One of the Assistant Excise and Taxation Officers, as per evidence, had kept the samples of Charas for two days after its recovery on 22.10.2016 until they were dispatched to chemical laboratory on 24.10.2016---In what capacity said official was entrusted with those samples and for what purpose had not been explained---It was not the case that said official was Malkahna-In Charge---For two days, the samples were with him but where he kept them had neither been disclosed in evidence, nor brought on record by other means---Said Assistant Excise and Taxation Officer had not been cited as a witnesses, nor his S.161 Cr.P.C statement was recorded during investigation to get some clue as to where he had kept the property in the meantime and why---Prosecution case was completely silent on this important aspect of the case, rendering identity of the samples dispatched to the laboratory uncertain---Appeal against conviction was allowed, in circumstances.

Qaisarullah and others v. The State 2009 SCMR 579; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Kamran Shah and others v. The State and others 2019 SCMR 1217; Mst. Razia Sultana v. The State and another 2019 SCMR 1300; Faizan Ali v. The State 2019 SCMR 1649; Zahir Shah alias Shat v. The State through Advocate-General, Khyber Pakhtunkhwa 2019 SCMR 2004; Haji Nawaz v. The State 2020 SCMR 687; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Ameer Zeb v. The State PLD 2012 SC 380; Qaiser Javed Khan v. The State through Prosecutor General Punjab, Lahore and another PLD 2020 SC 57; Nadeem Akhtar v. State and another 2022 YLR 1238; Mst. Farzana v. The State 2020 MLD 49; Abdul Wahab and another v. The State 2019 SCMR 2061; Faisal Shahzad v. The State 2022 SCMR 905; Liaquat Ali and another v. The State 2022 SCMR 1097 and Zain Ali v. The State 2023 SCMR 1669 ref.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Defective investigation---Prosecution case was that 57 kilograms charas was recovered from the vehicle driven by the accused---Complainant in his evidence had claimed that he had prepared the memo (of recovery and arrest) in presence of the Mashirs and obtained their signature thereon---Mashir in his evidence had added Excise Constable in the episode and had named him as the author of memo---Documents retrieved from the vehicle showed that its owner was one Mr. PA, and not the accused, yet nothing was done to investigate such person and ascertain his role in the case---Complainant in his evidence had admitted that he had not investigated the fact, nor he had any material in his possession to show that accused had prior knowledge of presence of concealed Charas in the

spare tyre---Spare tyre was neither sealed at the spot being a curial piece of evidence supporting accusation, nor was it even produced in the Court at the time of evidence to reinforce such part of allegation---Complainant had claimed that endorsement i.e. crime number, serial numbers, identification marks on each sample was written by him with a blue marker pen---Yet, at the time of evidence such writing was found to have been made with a black marker pen, and further the witness had revealed that such endorsement on the samples and remaining property was made by Excise Constable---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Discrepancies in evidence---Prosecution case was that 57 kilograms charas was recovered from the vehicle driven by the accused---Record showed that the remaining property, apart from samples sent to laboratory for analysis, was not deposited in the Court at the time of submission of the Challan as required---On the day of deposition of witnesses it was purportedly brought from the Malkhana of relevant police station and produced in the Court but without any document subscribing to such fact---Therefore, nothing, with a certainty, could be said about its genuineness or the fact that in the meantime it was not manipulated or arranged---First Information Report reflected that the Charas in each packet was found with letters JAMEELAN' printed in Urdu over it---At the time of evidence the letters 'GEELAN' were found written over the Charas---Such anomalies went to the roots of the case making it suspicious---Fact that both the accused arrested at the spot were father and son could not be lost sight of---Father was found on the wheel, hence he was assumed to be the driver and his son sitting next to him was presumed to be the cleaner---Trial Court considering the accused as the driver held him responsible for keeping the Charas in the spare tyre and let the son go off the hook treating him as totally ignorant of presence of the Charas, which approach was fundamentally defective largely predicated on skewed reasoning---How it could be assumed that only father knew of the Charas and kept it secret from son, although he was with him right from beginning of their journey---Then, if at the given time, the father was found driving the truck, would it imply that all the way he had been doing it at a stretch and the son did not allow him a break at any time and drove the truck---Furthermore, being the cleaner and son at the same time it was not hard to extrapolate that he must have helped his father in taking care of the truck in all respects including preparing it for a long sortie---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Co-accused acquitted on same set of evidence---Prosecution case was that 57 kilograms charas was recovered from the vehicle driven by the accused---Record showed that it was not the case of prosecution that only father knew the Charas and son was not aware of its presence, but the trial Court proceeded to presume the same without there bei

ng any evidence in that regard, and acquitted the son---So when the son was found entitled by the trial Court to benefit of doubt on assumption of his being ignorant of presence of the Charas in the vehicle, the father would also be entitled to such benefit because there was no evidence that he had any prior information of the Charas present in the vehicle, which was not even owned by him but by someone else, whom the prosecution failed to investigate for ascertaining his role in the case---So even from such angle, i.e., no investigation against the owner of the truck,the prosecution case was weak and did not inspire confidence---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Benefit of doubt---Principle---Once there is a single doubt in the case, its benefit will go to the accused not as matter of grace but as a right.

Raja Bilal Asif for appellant.

Aftab Ahmed Shar, Additional Prosecutor General for the State.

Dates of hearing: 11th October, 2023 and 21st November, 2023.

Judgment

Muhammad Iqbal Kalhoro, J.---Being aggrieved by and dissatisfied with a judgment dated 22.05.2019, passed by learned Additional Sessions Judge-I/Special Judge for Control of Narcotic Substances Act (MCTC), Ghotki, in Special Case No.61 of 2016, stemming from FIR No.07 of 2016, registered at Police Station Excise, Ghotki under Section 9(c) of Control of Narcotic Substances Act, 1997, convicting and sentencing appellant to suffer rigorous imprisonment for life with fine of Rs.3,00,000/-, in case of its default, to undergo simple imprisonment for two years more, with benefit of Section 382-B Cr.P.C, the appellant has preferred this appeal.

1. In brief, on 22.10.2016 complainant, Excise Inspector Hussain Bakhsh Larik of Excise Police Station, Ghotki, busy in checking vehicles with his team at Excise Check Post Sindh-Punjab Border, Kamoon Shahed, spotted a truck with registration No. AJK-6641coming in speed from Sadiqabad side at about 05:30 a.m. They stopped it and found two persons including driver available who alighted from the truck and disclosed their identity as Sultan Bahadur Bhatti (Driver) and Yousuf Sultan (Cleaner), residents of Moula Mian Baba, Taluka and District Swabi. They revealed there were corn grains in the truck. Their personal search led to recovery of some cash i.e. Rs.5,000/- and Rs.2,000/ and identity cards. On inspection of vehicle, a registration book in the name of Parvez Ahmed and Muhammad Banaras, and one invoice No.294 of Hamza Mini Goods Transport Company were recovered. On further search, a spare tyre was spotted which on opening was found containing packets wrapped with plastics of red and brown colours, and a word 'Doncafe' was printed on the same. Packets were opened and found with Charas, on which a word ( ) was printed. The packets were 57 in number, which were weighed and found 1 kilogram each, total 57 kilograms. From each packet, 200 grams of charas as samples were segregated for chemical examination and sealed in white paper. Remaining Charas available in packets was sealed in two sacks and numbered as 28 and 29. The truck, found loaded with corn grains, accused and recovered property were all brought at Police Station where FIR, as stated above, was registered against the accused.

2. After investigation, the Challan was submitted to the trial Court, where, following due procedure, the charge was framed against the appellant and co-accused Yousif Sultan (since acquitted) to which they pleaded not guilty and claimed trial. In support of the charge, the prosecution examined the complainant at Ex.6. He presented all necessary documents including memo of inspection of place of incident, recovery of Charas and arrest of accused, FIR, departure and arrival entries, the letter under which recovered Charas was sent to chemical lab through EC Allah Dino, a receipt of submitting property to chemical lab, its report and a letter written to MR Motor Vehicle Registration, Azad Kashmir for verification of the truck. The evidence of mashir, Excise Constable Preetam Das was recorded at Ex.7.

3. Thereafter, the appellant and co-accused were examined under section 342, Cr.P.C. Both of them denied the allegations leveled against them. However, appellant further submitted that he is a retired employee of Pakistan Army, and prior to incident, when he was travelling along with his son (co-accused Yousif Sultan) in a bus having cash amount of Rs.80,000/- for arrangement of his said son's job, the complainant snatched the said amount, which he tried to resist, hence he booked them in this false FIR. He has produced his service documents, a character certificate issued by Tehsil Councilor Tehsil Swabi stating that he is an elected member of General Councilor of Village Council Marghuz Yara Khel (Shargi), and such record of election. Despite the opportunity provided, the appellant neither examined himself on oath, nor presented any evidence in his defense. On conclusion of the trial, learned trial court, while acquitting co-accused Yousif Sultan on a benefit of doubt found the appellant guilty of the offense he was charged with, and sentenced him through the impugned judgment in the terms as stated above.

4. Learned Counsel in defence has submitted that appellant is innocent, has been falsely been implicated in this case; that there are material contradictions in the evidence of witnesses, which have not been appreciated by the trial Court; that the FIR shows that the Charas with the name of "Jameelan ()" was recovered, but at the time of evidence, the name "Geelan ()" was found printed on the Charas; that place of incident is not established as the site plan, a necessary requirement of law, was not prepared; that the IO has stated that he had prepared the memo of arrest and recovery, whereas, the mashir has stated that it was written by EC Zulfiqar Ali; that it is alleged that narcotics was recovered from spare tyre available in the truck, but nowhere in the entire evidence, it has been revealed that as to where the said spare tyre was available; that even the spare tyre was not produced at the time of evidence in the Court; that two Assistant Excise and Taxation Officers (AETO) available with the raiding team, were supervising the recovery, but none of them has either been made a witness or any document verified by them has been produced; that no photo or video clip of the incident was made, nor produced in the Court. The whole case is premised on a word of complainant and witnesses without any satisfactory documentary record; that in the evidence, both witnesses have stated that endorsement over the property and on the samples was made with blue ink, but at the time of evidence, the ink used was found to be black; that it is not pointed out as to who had separated the samples from the whole, and hence, the case is shrouded in mystery. The safe chain of custody of the narcotics from place of incident to police station and from police station to the office of chemical analyzer has not been proved through any reliable evidence; that it is alleged that at police station, the property was kept in the custody of (AETO) Siraj Ahmed but he has not been examined, nor the Excise Constable, who had taken the property to the chemical lab for examination. Learned Counsel has relied upon the cases of Qaisarullah and others v. The State (2009 SCMR 579), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Kamran Shah and others v. The State and others (2019 SCMR 1217), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), Faizan Ali v. The State (2019 SCMR 1649), Zahir Shah alias Shat v. The State through Advocate-General, Khyber Pakhtunkhwa (2019 SCMR 2004), Haji Nawaz v. The State (2020 SCMR 687), Mst. Sakina Ramzan v. The State (2021 SCMR 451), Ameer Zeb v. The State (PLD 2012 SC 380), Qaiser Javed Khan v. The State through Prosecutor General Punjab, Lahore and another (PLD 2020 SC 57), Nadeem Akhtar v. State and another (2022 YLR 1238) and Mst. Farzana v. The State (2020 MLD 49).

5. On the other hand, learned Additional Prosecutor General has supported the impugned judgment and submitted that the prosecution has succeeded in establishing the case against the appellant beyond any reasonable doubt, as there is no material contradiction impairing the prosecution case, and on all salient features of the case both the witnesses have supported each other. He has relied upon the cases of Abdul Wahab and another v. The State (2019 SCMR 2061), Faisal Shahzad v. The State (2022 SCMR 905), Liaquat Ali and another v. The State (2022 SCMR 1097), an unreported judgment dated 29.05.2023 of the Supreme Court passed in Criminal Appeal No.208 of 2022 (Re: Zain Ali v. The State 2023 SCMR 1669) and an unreported judgment of this Court dated 21.09.2023 passed in Spl. Crl. Jail Appeal No. D-85 of 2018 (Re: Zanwar Hussain Pathan v. The State).

6. We have heard the parties and perused material available on record including the case law relied at bar. In this case, the prosecution has examined only two witnesses. One is the complainant/investigation officer of the case and other is the Mashir who had witnessed recovery allegedly effected in his presence and which he has verified in his evidence. Although, the record verifies that the whole team which participated in the scoop comprised at least 10 persons including two senior officials with the rank of AETO, but none of them, the prosecution decided to put in the witness box to verity the story. One of AETO namely Siraj Ahmed Samtio, as per evidence, had kept the samples of Charus for two days after its recovery on 22.10.2016 until they were dispatched to chemical lab on 24.10.2016. In what capacity he was entrusted with those samples and for what purpose has not been explained. It is not the case that he was Malkahna-In Charge and thus as per rules it was required to be done, as no such claim, the witnesses have made in their evidence. For two days, the samples were with him but where he kept them has neither been disclosed in evidence, nor brought on record by other means. This person i.e. AETO has not been cited as a witnesses, nor his 161 Cr.P.C statement was recorded during investigation to get some clue as to where he had kept the property meanwhile and why. The prosecution case is completely silent on this important aspect of the case, rendering identity of the samples dispatched to the lab uncertain.

2024 M L D 1149

[Sindh]

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

M.F.M.Y Industries Limited---Petitioner

Versus

Federation of Paistan and others---Respondents

Constitution Petition No. D-34 of 1995, Constitution Petition No. D-2659 of 1994 and Constitution Petition No. D-81 of 1995, decided on 8th March, 2023.

Imports and Exports (Control) Act (XXXIX of 1950)---

----S.3---Import Fee Order, 1993---Notification SRO 594(I)/1993, dated 17-07-1993---Import license fee---Whether service provided in return---Quid pro quo, principle of---Applicability---Petitioners were importers and aggrieved of charging of fee for issuance of import license, as no service was being provided in return---Validity---Fee could not be restricted only for rendering any material service but if any special benefit was conferred or any privilege was bestowed and for obtaining that privilege or benefit any amount was charged it did not fall within the category of fee---On promulgation of Import Fee Order, 1993, Imports and Exports (Control) Act, 1950 still regulated imports and exports in the country and regulated trade and commerce---Such import and export was done by way of an import and export policy which was issued every year taking into consideration economy of country and its requirements---Privilege was extended for permitting import of an item which otherwise could not be done by all, except such permission, and service was still provided through Export Promotion Bureau as well as the Bank (which at the relevant time was a nationalized bank)---High Court declined to declare levy of such fee illegal and without sanction of law, as in essence requirement of quid pro quo stood fulfilled---Fees realized could not necessarily exactly correspond to expenditure incurred on administration of Imports and Exports (Control) Act, 1950---High Court declined to interfere in the matter as importers were required to pay fee as the authorities were still rendering service under Import Fee Order, 1993---Constitutional petition was dismissed, in circumstances.

Messrs Lucky Cement Ltd. Through General Manager, Peshawar v. Khyber Pakhtunkhwa through Secretary Local Government and Rural Development, Peshawar and others 2022 SCMR 1994; Ayaz Textile Mills Ltd. v. Federation of Pakistan through Secretary Commerce's, and another PLD 1993 Lahore 194; METCOI Shipbreakers v. Pakistan 1996 MLD 144 and Sheikh Muhammad Ismail and Co. Ltd. v. The Chief Cotton Inspector PLD 1966 SC 388 rel.

Imran Iqbal Khan for Petitioner.

Abdul Ghaffar Khan for Petitioners (in C.P No. D-2659 of 1994 and D-81 of 1995).

Qazi Ayazuddin Qureshi, Assistant Attorney General for Respondent No. 1.

S. Mohsin Imam Wasti, Muhammad Rashid Arfi and Asif Ibrahim Memon for respondents.

Judgment

Muhammad Junaid Ghaffar, J.---These Petitions involve a common question of law that whether pursuant to repeal of the Licences and Permits Fee Order, 1979 and promulgation of Import Fee Order, 1993 through SRO 594(I)/1993 dated 17.07.1993, the Petitioners were still required to pay Import Licence Fee on their imports.

1. Learned Counsel for the Petitioners have contended that prior to the repeal of the 1979 Order, any importer who wish to import anything into Pakistan was required to obtain an Import Licence for which requisite fee was required to be paid. According to them after repeal of the said Order and abolishment of the condition to obtain licence, no service was being provided by the Government, therefore, levy and demand of such Import Licence Fee in terms of SRO 594(I)/1993 was illegal and ultra vires to the Imports and Exports (Control) Act, 1950; hence liable to be so declared. They have further contended that admittedly fee can only be levied when there is an element of quid pro quo, which is lacking in this matter, and therefore any collection of such fee during the period under question was illegal and without lawful authority. One of the learned Counsel also argued that when this fee was being abolished, it was announced by the Finance Minister in his budget speech that the amount of such fee was being merged into Customs Duties, and therefore, any further collection of the same amounts to double taxation. It has been lastly contended that subsequently 1994 onwards, the said fee was abolished, which supports the case of the Petitioners. In support they have relied upon the cases reported as Messrs Lucky Cement Ltd. Through General Manager, Peshawar v. Khyber Pakhtunkhwa through Secretary Local Government and Rural Development, Peshawar and others (2022 SCMR 1994), Ayaz Textile Mills Ltd. v. Federation of Pakistan through Secretary Commerce's, and another (PLD 1993 Lahore 194).

2. On the other hand, learned Assistant Attorney General has opposed the contention of the Petitioners' Counsel and has relied upon the comments filed on behalf of the respective Respondents. According to him the fee was still payable and no case is made out by the Petitioners.

3. We have heard all learned Counsel as well as Assistant Attorney General and have perused the record as well. Admittedly, all imports under the Country, at the relevant time were being controlled in terms of Section 3 of the Imports and Exports (Control) Act, 1950, ("Act") and for import of any item, it was mandatory to obtain an Import Licence against payment of Fee from the office of Chief Controller of Imports and Exports ("CCI&E"). Thereafter, pursuant to issuance of Import Fee Order, 1993, certain changes were made and the requirement to approach the office of CCI&E to obtain a Licence was abolished and a new mechanism was introduced, whereby, an Importer was required to approach the concerned Bank directly for opening of a letter of credit. It would be advantageous to refer Section 3 of The Act, and Paras 2 & 3 of the Import Fee Order, 1993, which reads as under: -

"3. Powers to prohibit or restrict imports and exports: (1) The Federal Government may, by order published in the official Gazette and subject to such conditions and exceptions as may be made by or under the order, prohibit, restrict or otherwise control the import or export of goods of any specified description, or regulate generally all practices (including trade practices) and procedure connected with the import or export of such goods, \[and such order may provide for applications for licences under this Act, the evidence to be attached to such applications, the grant, use, transfer, sale or cancellation of such licences, and the form and manner in which and the periods within which appeals and applications for review or revision may be preferred and disposed of, and the charging of fees in respect of any such matter as may be provided in such orders].

(2) No goods of the specified description shall be imported or exported except in accordance with the conditions of a licence to be issued by the Chief Controller or any other officer authorized in this behalf by the Federal Government.

(3) All goods to which any order under sub-section (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted under [Sec. 16 of the Customs Act, 1969 (IV of 1969), and all the provisions of that Act shall have effect accordingly].

(4) Notwithstanding anything contained in the aforesaid Act the Federal Government may, by order published in the official Gazette, prohibit, restrict or impose conditions on the clearance whether for home consumption \[or warehousing or] shipment abroad of any imported goods or class of goods."

==============

"The

IMPORT FEE ORDER, 1993

Notification No. S.R.O. 594(I)/93, dated 17th July, 1993.--In exercise of the power conferred by sub-section (1) of section 3 of the Imports and Exports Control) Act, 1950 (XXXIX of 1950), the Federal Government is pleased to make the following Order, namely:--

1. Short title and commencement.--(1) This Order may be called the Import Fee Order, 1993.

(2) It shall come into force at once.

2. Definition. In this Order, unless there is anything repugnant in the subject or context,--

(a) "Authority means Vice-Chairman, Export Promotion Bureau, or any officer of the Export Promotion Bureau authorised by him to perform functions under this Order; and

(b) "party" means a firm or a branch of a firm, institution, body, organization, person or group of persons applying for opening a letter of credit, against cash, loans, credits, barters, supplier's credit, PAYE Scheme, or any special trading arrangements or effecting import on consignment basis or through any other mode of payment or under NRI Scheme.

1. Fee payable--(1) Every party who applies for opening of a letter of credit for the import of any goods against cash, loans, credits, barters, supplier's credit. PAYE Scheme or any special trading arrangements or effects imports on consignment basis or through any other mode of payment under NRI Scheme shall pay fee at the rate of 6% ad valorem on C and F value of goods:

Provided that the Federal Government may permit release of goods by the Customs Authorities on payment of fee at the rates indicated below:-

(a) Where goods are shipped one percent additional fee before the opening of L/C over and above the prescribed against cash, loans, credits, normal fee deemed to have suppliers' credit, barters, been payable at the time just PAYE Scheme or registration before the date of shipment.of contract for import on consignment basis.

(b) Where goods are shipped two percent of the un-utilized within twelve months after amount of L/C for each quarter the expiry of initial twelve beyond initial or extended months of opening of L/C. validity period of L/C as the case may be.

Provided further that the rate of fee for import of machinery, not locally manufactured in Pakistan for initial installation, expansion, balancing, modernisation and replacement, intended to be installed in the Rural Area as defined in the Ministry of Industries' Circular No. 6(12)/90. Policy, dated this 17th December, 1990, as amended from time to time, shall be two per cent ad valorem:

2024 M L D 1160

[Sindh]

Before Muhammad Shafi Siddiqui and Jawad Akbar Sarwana, JJ

Mst. Bhalan and 4 others---Appellants

Versus

Muhammad Asif Sakaria and 5 others---Respondents

High Court Appeal No. 180 of 2020, decided on 22nd November, 2023.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Registration Act (XVI of 1908), S. 17---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and injunction---Rejection of plaint---Bar of limitation---Registered document---Presumption of correctness---Appellants/ plaintiffs claimed to be owners of suit land and sought cancellation of sale deeds in favour of respondents / defendants---Judge in Chambers of High Court rejected the plaint as it was barred by time---Validity---Court could not read into the plaint what was not pleaded---If cause of action date was mentioned as 16-05-2003 and no one objected to it, then Court was to accept such date---Appellants/ plaintiffs in year 2016 sought cancellation of registered sale/ conveyance deeds dated 1992, 2005 and 2007---Judge in Chambers of High Court correctly applied law of limitation and rightly concluded that suit filed by appellants/ plaintiffs was time-barred---Onus was on appellants/ plaintiffs to show a prima facie case was made out based on plaint and documents filed in support thereof---Appellants/ plaintiffs were well aware of presumption of truth associated with a sale/conveyance deed that was duly registered under Registration Act, 1908---Appellants/ plaintiffs neither produced nor relied upon any document which prima facie could be deemed or interpreted to rebut such presumption---Such aspect of the matter did not help the cause of appellants/ plaintiffs---Division Bench of High Court declined to interfere in the order passed by Judge in Chambers of High Court, as it did not suffer from any illegality or material irregularity--- Appeal was dismissed, in circumstances.

Muhammad Ali Phulpoto for Appellants Nos. 1 to 5.

Muhammad Mushtaq Qadri for Respondent No. 1.

Nemo for Respondent No. 2.

Addl. A.G. for Respondent No. 3

Nemo for Respondent No. 4.

Nemo for Respondent No. 5.

Nemo for Respondent No. 6.

Zia-ul-Haq Makhdoom for Intervenor.

Date of hearing: 7th November, 2023.

Judgment

Jawad Akbar Sarwana, J.---Through this Appeal, the five (5) Appellants/Plaintiffs, all legal heirs of Late Muhammad Jokhio son of Bilawal Jokhio ("legal heirs of Muhammad"), have challenged the Order dated 12.08.2020 passed by the High Court of Sindh at Karachi in Civil Suit No.2638/2016 whereby the learned Single Judge after hearing the parties on Respondent No.1's ("Muhammad Asif Sakaria" / "Sakaria") Application under Order VII Rule 11 C.P.C. (CMA No.16672/2017), rejected the Plaint because it was hopelessly barred by time and dismissed the suit along with all applications. Aggrieved by the Impugned Order, the legal heirs of Late Muhammad have filed this appeal.

1. The brief facts of the appeal are that as of 13.07.1939, Bilawal Jokhio son of Mohammad owned shares in Agricultural land bearing Survey Nos.1, 2, 3, 4, 5, 6. 226, 227 and 241 situated in Deh Kharhkro, Tapo Konkar, Taluka, Karachi East, District Malir, Karachi, which formed the subject matter of the suit (the "Suit Properties"). During his lifetime in the year 1956, Bilawal Jokhio gifted to his son, Mohammad, Survey Nos. 6, 226 and 227. Based on the Form-VII filed with the Plaint, the legal heirs of Muhammad were/are owners of:

i) Survey No.1 measuring 5 acres 31 ghuntas

ii) Survey No.2 measuring 8 acres 18 ghuntas

iii) Survey No.3 measuring 9 acres 27 ghuntas

iv) Survey No.4 measuring 6 acres 4 ghuntas

v) Survey No.5 measuring 8 acres 17 ghuntas

vi) Survey No.6 measuring 7 acres 1 ghunta

vii) Survey No.226 measuring 9 acres 33 ghuntas

viii) Survey No.227 measuring 6 acres 36 ghuntas

ix) Survey No.241 measuring 2 acres 4 ghuntas

1. In the year 1992, Muhammad Jokhio and other shareholders sold their shares in the Suit Properties relating to Survey Nos.5 and 6 through an attorney, namely, Mohammad Ramzan alias Ramzoo son of Mojoo Jokhio by registered conveyance deed dated 01.03.1992 executed by three sons of Alam Khan Jokhio (Respondent No.4), namely (i) Shakeel (Respondent No.5), Qaim (Respondent No.6) and (iii) Mumtaz. They also parted with the Suit Properties, namely, Survey Nos.1, 2, 3, 4, 226, 227 and 241 through registered sale dated deed 16.03.1992 executed with the sons of Alam Khan Jokhio (Respondent No.4), namely, (i) Shakeel (Respondent No.5), Qaim (Respondent No.6), (iii) Mumtaz, (iv) Ghulam Muhammad, (v) Yar Muhammad, (vi) Abdul Majeed, (vii) Younus, and (viii) Ali. Finally, Respondent No.1 ("Muhammad Asif Sakaria" / "Sakaria") purchased the Suit Properties from the aforesaid Respondents Nos.4, 5, 6 and the sons of Respondent No.4 as mentioned above through two Registered Sale Deeds dated 20.12.2005 and 03.10.2007, respectively.

2. According to the Plaint, the legal heirs of Muhammad Jokhio, on 16.05.2003, came to know about an "embezzlement" in respect of the Suit Properties through a report of Deputy District Officer ("D.D.O.") (Revenue) attached to the Plaint as Annexure "D" (available on pages 37-47 of the suit file). On 09.06.2015, the legal heirs of Muhammad filed an application with the concerned Mukhtiarkar (Respondent No.2), citing the D.D.O's enquiry report attached to the Plaint as Annexure "E" (available on pages 49-53 of the suit file). Thereafter, on 22.10.2016, the Appellants/Plaintiffs filed Suit No.2638/2016 seeking a declaration of title in the suit properties, cancellation of the above-mentioned registered conveyance deeds and permanent injunction to restrain the Respondents from dispossessing them from the Suit Properties. As already mentioned hereinabove, the learned Single Judge concluded in the Impugned Order that the Plaint filed was hopelessly time-barred and dismissed the Suit.

3. During the course of arguments, Counsel for the legal heirs of Muhammad admitted that the cause of action first arose to the Appellants on 16.05.2003. He argued that the date was irrelevant because his clients enjoyed peaceful possession of the Suit Properties, and there was no disturbance. He claimed that the legal heirs of Muhammad had submitted in 2015 to the concerned Mukhtiarkar, an application in relation to the Suit Property based on the D.D.O's enquiry report dated 16.05.2003. When there was no response from the Mukhtiarkar, the Appellants/Plaintiffs filed the suit against the Respondents, which was well within time. The Counsel stressed that the suit was not barred by limitation, and the grounds which have been taken in the application of Respondent No.1 did not come within any angle of application under Order VII Rule 11 C.P.C. He added that Respondent No.1 was neither the owner of the Suit Properties nor in physical possession of the same. Hence, the suit as filed was within time.

4. Counsel for Respondent No.1 opposed Appellants'/Plaintiffs' submissions. He contended that the Appellants/Plaintiffs had mentioned in Para 17 of the Plaint that the cause of action accrued on 16.05.2003; and, consequently, the suit was liable to be dismissed.

5. We have heard the learned Counsel for the Appellants/Plaintiffs, Respondent No.1, and the learned Additional A.G., reviewed the record as available in the Appeal file and read the Impugned Order.

6. At the outset, it is important to note that during the course of arguments, Counsel for the legal heirs of Muhammad candidly admitted the contents of paragraph 17 of the Plaint, wherein the Appellants admitted that "the cause of action arose to the Appellants, firstly on 16.05.2003 when the Plaintiffs [legal heirs of Muhammad] came to know through a report of the Deputy District Officer (Revenue) that there is some embezzlement of the land of Plaintiffs [Appellants]." The legal heirs of Muhammad have not denied that the cause of action in the suit arose on 16.05.2003. There is neither any denial of the date of cause of action mentioned as "16.05.2003" in the Objections supported by the Affidavit sworn and filed on 20.01.2018 by Ms. Bhalan, widow of Muhammad (Appellant/Plaintiff No.1) nor any denial in the instant Appeal which is supported by a verification under oath on 12.09.2020 by the Attorney of the Appellants, Mr. Muhammad Haroon Kamal. Thus, the fact that the cause of action first arose on "16.05.2003" has neither been controverted nor denied and stands admitted. No evidence was/would be required to prove the same. Therefore, the suit, as framed in terms of the relief prayed, was hopelessly time-barred.

7. The learned Single Judge has identified another aspect of this matter, which he has not elaborated upon and causes doubt regarding the Appellants/Plaintiffs assertions set out in the Plaint. This is that the Appellants/Plaintiffs claimed that the date of cause of action of 16.05.2003 emerged from the D.D.O.'s enquiry report of the same date, but that report did not concern the Suit Properties. The D.D.O.'s Report dated 16.05.2003 mentioned totally different survey numbers. It did not relate to the Suit Properties at all, which formed the subject matter of the Suit. Yet no explanation is provided by the Appellants/Plaintiffs as to why they have tried to connect their knowledge about the "embezzlement" regarding the Suit Properties to a D.D.O.'s enquiry report dated 16.05.2003, which does not even concern them. Further, apart from the D.D.O.'s enquiry report itself (Annexure "D" of the Plaint), there is another document relied upon by the Appellants/Plaintiffs which mentions the D.D.O.'s enquiry report, and this is the Appellants/Plaintiffs Application filed with the Mukhtiarkar (Annexure "E" of the Plaint). The said application also cross-references the D.D.O.'s enquiry report on its second last page. But in this application to the Mukhtiarkar, the Appellants/Plaintiffs refer to D.D.O.'s report as dated 16.05.2013 and not 16.05.2003. To this end, neither the Plaint, nor the Affidavit sworn by Ms. Bhalan (Appellant No.1/Plaintiff No.1) in support of her Objections to CMA No.16672/2019 nor the Appeal itself address this apparent anomaly. There is total silence on this aspect of the matter. The Appellants/Plaintiffs have not taken any ground in the appeal that the learned Single Judge has got the date of the first cause of action wrong. Counsel provided no clarification for the Appellants/Plaintiffs. Rather, the Appellants have re-iterated the contents of the Plaint, thereby reaffirming the position taken by the Appellants/Plaintiffs that the cause of action first arose on 16.05.2003 even though the D.D.O.'s enquiry report has nothing to do with the Suit Properties. Appellants/Plaintiffs filed no application to amend the Plaint.

8. Finally, the learned Single Judge also observed in the Impugned Order that even though Mohammad parted with the Suit Properties, he did not challenge the registered conveyance deeds during his lifetime. There are two aspects to this point. First, according to the Appellants/Plaintiffs, the cause of action first arose on 16.05.2003 when they (actually Mohammad) learnt that there was "some embezzlement of the land of the Plaintiffs [Appellants]." The "embezzlement" alleged by the Appellants/Plaintiffs in 2003 would have been in relation to the registered conveyance deeds of 1992, and still, Mohammad did not take any positive action to safeguard his rights up to the time of his death (he passed away on 13.01.2005). The second point is that the next conveyance of the Suit Properties took place through sale deeds duly registered in the years 2005 and 2007. The sale was registered after the death of Muhammad. This time, it was the onus of the legal heirs of Muhammad to remain vigilant, especially when apparently they had knowledge of the "embezzlement" in the year 2003. There is nothing on record to show that Muhammad and the legal heirs of Muhammad were not indolent. Nothing on record demonstrates their vigilance. All this did not inspire confidence in the learned Single Judge, and frankly, we are not impressed by the conduct of the Appellants/Plaintiffs, who have been apparently sleeping on their rights notwithstanding the registered sale deeds executed to perfect the transfer of the Suit Properties first from Muhammad to Respondents Nos.4 to 6 and others, and thereafter subsequently from them to the Respondent Nos.1.

9. In the circumstances, we cannot read into the Plaint what is not pleaded. If the cause of action date is mentioned as "16.05.2003", and no one has objected to it, we must accept it. The Appellants/Plaintiffs (in 2016) sought cancellation of the registered Sale/Conveyance Deeds dated 1992, 2005 and 2007. Thus, the learned Single Judge has correctly applied the law of limitation to the case in hand and concluded that the suit filed by Appellants/Plaintiffs was time-barred. The admission made by the legal heirs of Muhammad in clear terms in the Plaint disentitles the Appellants/Plaintiffs from raising any challenge to the Impugned Order of the trial court. Respondent No.1 rightly noticed that the suit was barred by limitation and the Appellants/Plaintiffs have failed to bring on record any explanation or justification after the clear admission made by the Appellants/Plaintiffs how the lis could be argued to be filed within time. The Impugned Order of the learned Single Judge is based on sound principles and proper appreciation of the law.

10. Finally, according to the narratives as to the title of the Suit Properties stated in Form-VII attached to the Plaint all transfers of the Suit Properties took place in 1992, 2005 and 2007 by way of registered sale/conveyance deeds. The onus was on the Appellants/Plaintiffs to show a prima facie case was made out based on the Plaint and documents filed in support thereof. The Appellants/Plaintiffs were well aware of the presumption of truth associated with a sale/conveyance deed that is duly registered under the Registration Act, 1908. The Appellants/Plaintiffs neither produced nor relied upon any document which prima facie could be deemed or interpreted to rebut such a presumption. This aspect of the matter did not and does not help the cause of the Appellants/Plaintiffs.

2024 M L D 1217

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

Mushtaque Ahmed Kobhar---Appellant

Versus

The State---Respondent

Criminal Appeal No. S-93 of 2013, decided on 18th April, 2022.

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

----Ss. 302(b), 324, 114 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, abettor present when offence committed, common intention---Appreciation of evidence---Defence witnesses, evidence of---Not reliable---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of nephew of the complainant by firing and caused firearm injury to the son of his sister---Defence witnesses produced on behalf of the accused were cooked up witnesses---Accused took specific plea that he was not available at the place of incident at that time and the complainant party attacked upon their houses in order to commit murder of Mst. "M" by declaring her Kari but the deceased and the injured received firearm injuries from the firing of their companion---Mst. "M" was examined as defence witness but on careful perusal of her evidence it was established that she had tried to save accused party and gave false evidence in their support---Said defence witness deposed that on the day of incident, it was Eid-ul-Fitr day and our male members had gone to offer Eid prayer and in their absence at about 10-00 a.m accused/complainant party having Kalashnikovs and pistols in their hands entered into their house to commit her murder on the allegation of "Karap" and they started firing to kill her but she saved herself inside the room and raised cries and due to firing of persons of complainant party, victims received fire-arm injuries from the hands of their own companions---Evidence of said witness had no support as such it carried no weight---On the other hand the prosecution had proved its case that the incident took place near to house of one Mr. "H" and not in the house of Mst. "M"---Mashirnamaof place of wardat also reflected that the place of wardat was situated outside the house of Mst. "M" and not inside of any house as claimed by the said defence witness---Evidence of other defence witness was also not helpful to the accused as according to him firstly he came to know about the incident and thereafter he went and informed about such incident to the accused party---Said witness was not available where accused party was present with the present accused at the time of incident, therefore his evidence could not be relied upon---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal against conviction was dismissed accordingly.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Zahir Yousif and another v. The State and another 2017 SCMR 2002; Muhammad Ali and others v. The State and others 2021 PCr.LJ Note 13; Ghulam Muhammad and others v. The State 2019 YLR 2037; Muhammad Ramzan v. The State and 2 others 2021 PCr.LJ Peshawar 1362; Imtiaz Ali v. Qurban Ali and 2 others 2020 MLD 1188; Talib Hussain Jatoi v. The State 2018 YLR 469; Nooro alias Noor Muhammad Shar and another v. The State 2018 PCr.LJ Note 52; Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230; Dilmurad v. The State 2010 SCMR 1178; Abdul Khalique v. The State 2015 YLR 1015; Sheeraz Khan v. The State 2010 SCMR 1772; Faisal Mehmood and another v. The State and another 2010 SCMR 1025 and Khadim Hussain v. The State PLD 2010 SC 669 ref.

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

----Ss. 302(b), 324, 114 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abettor present when offence committed, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of nephew of the complainant by firing and caused firearm injury to the son of his sister---There appeared two eye-witnesses of the incident including one injured witness who received firearm injuries and the same were supported by the medical evidence---Eye-witnesses had fully supported the case against the accused by specifically deposing that the accused had directly fired upon the deceased from Kalashnikov which hit him---Said witnesses were cross-examined at length but defence could not succeed in getting favourable contradictions---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)---

----Ss. 302(b), 324, 114 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abettor present when offence committed, common intention---Appreciation of evidence---Related and interested witnesses---Not consequential---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of nephew of the complainant by firing and caused firearm injury to the son of his sister---Contention of the accused was that the witnesses were related to the deceased and were interested, therefore, their evidence could not be relied upon---Such contention had no force as although the witnesses were relatives of the deceased but they specifically narrated each and every aspect of the incident---One of them received firearm injuries from the hands of the accused persons thus the presence of eye-witnesses at the time of incident had been established beyond a reasonable doubt---To believe or disbelieve a witness all depended upon intrinsic value of the statement made by him---Even otherwise, there could not be a universal principle that in every case interested witness would be disbelieved or disinterested witness shall be believed---Moreover, it all 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 the board and very respectable in society if gave a statement which was illogical and unbelievable, no prudent man despite his nobility would accept such statement---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal against conviction was dismissed accordingly.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 and Abid Ali and 2 others v. The State 2011 SCMR 208 rel.

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

----Ss. 302(b), 324, 114 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abettor present when offence committed, common intention---Appreciation of evidence---Weapon of offence was not recovered from accused, plea of---Not proved---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of nephew of the complainant by firing and caused firearm injury to the son of his sister---Accused contended that the alleged crime weapon used by him at the time of offence was not recovered from him, therefore, he could not be connected with the murder of deceased---Such contention of accused had no force in view of that all the prosecution witnesses supported the case of prosecution by deposing that the accused directly fired from his Kalashnikov which hit the deceased---Such direct evidence was further corroborated by medical evidence as the doctor who examined the deceased had found firearm injuries on the person of the deceased---Moreover, where 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 against conviction was dismissed accordingly.

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

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

----Ss. 302(b), 324, 114 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abettor present when offence committed, common intention---Appreciation of evidence---Minor contradictions in the statements of witnesses---Not consequential---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of nephew of the complainant by firing and caused firearm injury to the son of his sister---Record showed that accused though pointed out some minor contradictions in the evidence of witnesses but the same were not sufficient to discard their evidence---Even in cases where some minor contradictions might be available which were not sufficient to create any serious doubt, the same could be ignored as they were always available in each and every case---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal against conviction was dismissed accordingly.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Ubedullah K Ghoto for Appellant.

Shamsuddin N. Kobhar for the Complainant.

Syed Sardar Ali Shah, Deputy Prosecutor General for the State.

Date of hearing: 14th February, 2022.

Judgment

ZULFIQAR ALI SANGI, J:---Through this appeal, appellant Mushtaque Ahmed Kobhar, has challenged the Judgment dated 10.10.2013, passed by learned 3rd Additional Sessions Judge, Mirpur Mathelo, in Sessions Case No.270/2005 re-"The State v. Muhammad Hayat and others", arising out of Crime No.149/2005, registered at Police Station Daharki, under Sections 302, 324, 114, 34 P.P.C., whereby the appellant was convicted for the offence under section 302(b) P.P.C. and sentenced to suffer life imprisonment as Tazir and to pay fine of Rs.50,000/- as compensation to the legal heirs of deceased as provided under Section 544-A Cr.P.C and in default thereof to further undergo SI for six months more.

1. The brief facts of the prosecution case are that complainant Nawab son of Unar Kobhar lodged FIR, at police station Daharki on 04.11.2005 at about 1230 hours, alleging therein that Sijawal Kobhar aged about 15/16 years, was his nephew and Jageer Kobhar aged about 13/14 years, was son of his sister. Their married nieces are residing in village Jumo Kobhar. There was dispute with Mushtaque Kobhar on visiting their nieces. Mushtaque Kobhar prevented them to come in the village, but on the day of incident "Eid-Day", complainant along with his brother Mazari and his nephew Zameer Ahmed went on the motorcycle to give "Sweet" on the eve of Eid to their married women. Jageer and Sijawal were ahead, while complainant was on their back. When they reached at village Jumo Kobhar near the house of Hazaro Kobhar at 10:30 a.m, accused Mushtaq having Kalashnikov, Hayat with gun, Sobharo with pistol and Morero came out from their houses. Accused Morero instigated other accused that inspite of their prevention from visiting the village they have come here, on such accused Mushtaq fired with his Kalashnikov at Sijawal and Hayat fired with gun at Jageer, who fell down, Sobharo fired with his pistol upon complainant party which missed. The accused after firing went away and then complainant saw Sijawal having fire-arm injury on the left side which was through and through and Jageer had received injuries on shoulder, thigh and right arm. Thereafter, the complainant party took them to Daharki Hospital, from where after first aid they took Sijawal to Rahimyar Khan, who died on the way. On their return they left the dead body in Daharki Hospital and went to police station, where complainant lodged the FIR, against accused.

2. Earlier charge against accused Muhammad Hayat, Sobharo and Morero was framed on 25.9.2007 at Exh:04, but during trial proceedings accused Muhammad Hayat and Moriro were murdered on 25.3.2008, for that FIR bearing Crime No:68/2008 at police station Daharki was registered and subsequently proceedings against accused Muhammad Hayat and Moriro, were abated. Subsequently accused Mushtaque was arrested on 20.09.2011.

3. After supplying relevant documents as required under section 265-C Cr.P.C, on 08.9.2011 formal charge against accused Sobharo and Mushtaq was framed at Exh:13, to which they pleaded not guilty and claimed trial, vide their plea recorded at Exh:13-A and 13-B, respectively.

4. In order to substantiate charge against accused Sobharo and Mushtaque, prosecution has relied upon the evidence of P.W No:1 S.I.P Aftab Ahmed Farooqui (Exh:09), who produced memo of arrest of accused Hayat and Sobharo at Exh:9-A, Chemical Examiner report at Exh:9-B, F.S.L report at Exh:9-C. P.W No:2 Nawab Ali (Exh:14), he produced FIR at Exh:14-A. P.W No:3 Jageer (injured) at Exh:15. P.W No:4 Gosho at (Exh:18), he produced memo of injuries of injured Jageer at (Exh:18-A), he produced memo dead body seen at (Exh:18-B), inquest report at (Exh:18-C), memo of last worn clothes of deceased at (Exh:18-D), memo of place of incident at (Exh:18-E). P.W No:5 Inspector Abdul Wahab at (Exh:19), who produced "Lashchakas" form at (Exh:19-A). P.W No:06 Dr. Permanand at (Exh:20), who produced memo of injuries of injured Jageer at (Exh:20-A) and autopsy report of Sijawal at (Exh:20-B), "Lashchakas" form at (Exh:20-C), police letter at (Exh:20-D). P.W No:07 Ghulam Nabi Tapedar at (Exh:21), he produced sketch of place of wardat at (Exh:21-A). P.W No:8 A.S.I Abdul Razzak at (Exh:22). P.W No:09 D.S.P Ansar Ali at (Exh:23), he produced memo of arrest at (Exh:23-A). P.W No:10 P.C: Allah Bux (Corpse bearer) at (Exh:25), he produced receipt at (Exh:25-A). On 20.9.2013, learned counsel for accused moved an application for re-calling the witnesses Aftab Hussain Farooqui and SIO Ansar Ali Mithyani which was allowed by consent and they were cross-examined. Thereafter, learned A.D.P.P for the State vide statement (Exh:26) dated: 26.9.2013 closed the side of prosecution.

5. Learned counsel for the appellant has contended that the prosecution has failed to prove its case beyond reasonable doubt; that learned trial Court did not appreciate the important aspect regarding the major contradictions in the evidence of prosecution witnesses besides there is conflict in the ocular and medical evidence regarding injury No.1 sustained by the deceased which has not been considered by learned trial Court; that as per FIR, the fire made by appellant was hit to deceased Sijawal on left side of stomach whereas the postmortem report reveals that the same was sustained by him at abdominal cavity deep at left lumber region; that PW Nawab Ali deposed in his cross-examination that they were going towards northern side from southern side and accused came from southern side, accused made fire at a distance of ¾ feet, which disprove his presence at the place of incident; besides there are many lacunas and contradictions in the evidence of PWs; that learned trial Court has decided the case on the basis of allegation listed in the FIR without either appreciating or considering the evidence or other material available on record; that alleged crime weapon has not been recovered from the appellant; that the impugned Judgment is against the law, facts, principles of natural justice and equity; that learned trial court has erred in convicting the appellant by not taking into consideration the entire material and thus the impugned Judgment is liable to be set-aside. He finally prayed that by extending benefit of doubt, the appellant may be acquitted. In support of his contention, learned Counsel placed reliance on the cases of Barkat Ali v. Muhammad Asif and others (2007 SCMR 1812), Zahir Yousif and another v. The State and another (2017 SCMR 2002), Muhammad Ali and others v. The State and others (2021 PCr.LJ Note 13), Ghulam Muhammad and others v. The State (2019 YLR 2037), Muhammad Ramzan v. The State and 2 others (2021 PCr.LJ Peshawar 1362), Imtiaz Ali v. Qurban Ali and 2 others (2020 MLD 1188), Talib Hussain Jatoi v. The State (2018 YLR 469), Nooro alias Noor Muhammad Shar and another v. The State (2018 PCr.LJ Note 52), Tariq Pervez v. The State (1995 SCMR 1345), Muhammad Akram v. The State (2009 SCMR 230) and Dilmurad v. The State (2010 SCMR 1178).

6. Learned Counsel representing the Complainant submitted that there is active role of appellant in the commission of offence and the learned trial Court has rightly passed the impugned judgment by elaborating the material available on record as well as evidences of prosecution witnesses. He further contended that there is no any delay in lodgment of FIR, therefore question of involvement of appellant in commission of offence after consultation does not arise; that the prosecution has proved its case against the appellant beyond shadow of reasonable doubt; that minor contradictions in the evidences of prosecution witnesses cannot weaken the case of prosecution until and unless gross illegality or irregularity reflects from the impugned judgment; that the injury sustained by deceased attributes to the appellant is supported from the medical evidence, which is unshaken; that conviction has rightly been awarded to the appellant; that impugned judgment does not invite interference of this Court and liable to be maintained.

7. Learned DPG appearing for the state has supported the impugned judgment and further contended that the prosecution has proved its case against the appellant beyond any reasonable shadow of doubt by producing oral as well as documentary evidence; that the learned trial court has rightly convicted the appellant and he does not deserve any leniency; that there appears no illegality or irregularity in the impugned judgment which is well reasoned and does not require any interference of this court. In support of his contention, he placed reliance on the cases of Abdul Khalique v. The State (2015 YLR 1015), Sheeraz Khan v. The State (2010 SCMR 1772), Faisal Mehmood and another v. The State and another (2010 SCMR 1025) and Khadim Hussain v. The State (PLD 2010 SC 669).

8. I have heard learned counsel for the parties and have gone through the material available on record with their able assistance.

9. The prosecution examined complainant of the case namely Nawab Ali who deposed that on 04-11-2005, at about 10:30 a.m the present incident took place. On the same day he along with his brother and Zameer were on one Motorcycle and Jageer and Sijawal were on another Motorcycle were going towards village of Jumo Kobhar. The day of incident was Eid day and they were going to meet his nieces for the purpose of Eid, when they reached near the village Jumo Kobhar near house of Hazaro Kobhar they saw that accused Mushtaque was armed with K.K. Hayat was armed with gun, Sadoro was armed with pistol and on instigation of accused Moriro accused Mushtaque made straight fire on Sijawal with his K.K which hit him and he fell down on the ground. Accused Sobharo also fired upon them but the same were missed. Then accused ran away alarming slogans and they saw that Sijawal was seriously injured and blood was oozing. Jageer was also received fire-arm injury on his left shoulder, right thigh, left arm and blood was oozing. They took the injured towards Daharki hospital for medical treatment. Hospital authorities referred Sijawal to Rahimyar Khan and on the way Sijawal succumbed to his injures. He further deposed that they came back to hospital for postmortem of deceased and then went to P.S and lodged the FIR. The police visited the place of wardat on his pointation. The police secured blood stained earth from the place of wardat. He was cross-examined at length and during cross-examination some admissions come on record in respect of the incident in which one person was murdered and another received firearm injuries. On suggestion made on behalf of the accused this witness replied that "It is incorrect to suggest that we attacked upon accused party in order to kill Mst: Meenhan." In another suggestion he replied that "It is incorrect to suggest that Soomar is annoyed with us therefore, he himself not come forward as complainant and we falsely implicated the present accused in hurry." Again on a question made to him he stated that "It is incorrect that accused not fired upon the deceased as alleged Sobharo also fired upon us from distance of 6/7 feet." He further stated that "It is incorrect that I along with PWs went to house of Meenhan Mai to murder her for which they have lodged the FIR against us. It is incorrect that we fired upon Meenhan and said was missed and hit to Sijawal who fell down on the earth. It is incorrect that we left the scene after firing." The evidence of this witness is carefully examined but nothing favourable to appellant was found.

10. The prosecution examined another important witness Jageer who is the injured eye-witness. He deposed that on 04-11-2005, present incident took place; it was 10:30 a.m their relative's ladies are married in village Jumo Kobhar. Accused were annoyed with them due to visiting their houses. They also restrained them not to visit their village. It was Eid day after offering the Eid prayer they obtained the sweet and went towards the house of their relative ladies along with complainant, Mazari, Sijawal and Zameer. When they reached near the house of Hazaro Kobhar it was 10-30 a.m. they saw accused Mushtaque armed with K.K, Hayat armed with gun, Sobharo armed with pistol and Moriro, coming towards them. Accused Moriro instigated co-accused to kill the complainant and his witnesses, on which accused Mushtaque made straight fire upon Sijawal which hit him who fell down, with intention to commit the murder. Accused Hayat fired upon him which hit on his body Accused Sobharo also fired upon the complainant and Mazari. Then accused ran away towards their houses. Thereafter, complainant and P.Ws took them towards Daharki Hospital for medical treatment. Injured Sijawal was referred to Rahimyar Khan Hospital and on the way injured succumbed to his injuries. He deposed that he received injures on left shoulder and right arm and thigh. Then complainant went to police station and lodged the FIR against accused. Police inspected injuries on his body. Police recorded his statement. This witness was cross-examined at some length and during cross-examination this witness cleared the position in respect of the suggestions made on behalf of the appellant that the complainant party attacked upon Mst. Meenhan for her murder as they declared her kari he stated that "It is correct that prior to this incident Meenhan was declared Kari but later on faisla was held thereafter, his father himself contracted her marriage with one Sodho." If the position is as stated by this witness then the defence taken by the appellant that complainant party came to murder said Meehan and they received injuries from themself is totally unbelievable. This witness also stated during cross-examination that "Accused Mushtaque fired single fire on the deceased Sijawal." He also negated the suggestions that they attacked upon Mst. Meehan for murder and stated in cross-examination that "It is incorrect to suggest that we attacked upon the accused party in order to murder Meenhan and fired upon her which hit to deceased Sijawal. It is incorrect to suggest that Mushtaque had not fired on Sijawal."

11. The mashir namely Dhani Bux was examined by the prosecution who deposed that on 04-11-2005, he was present at Daharki town, where he came to know that P.W Jageer had received the injuries and Sijawal has been murdered. Police inspected the injuries of injured Jageer and prepared the mashirnama in his presence and in presence of co-mashir Jatoi. The Subedar had also seen the dead body of deceased Sijawal lying in the dead house of civil Hospital Daharki, he had also seen one fire-arm injury on the left side of abdomen of the deceased Sijawal. Such memo was prepared by the Subedar in his presence and in presence of co-mashir Jatoi. Same Subedar had prepared the inquest report of dead body of deceased in his presence and in presence of co-mashir Jatoi. Thereafter, they had taken the dead body of the deceased to his house where his blood stained clothes were taken and he himself as well as co-mashir had produced the blood stained clothes before police at police station, where such memo was prepared in his presence and in presence of co-mashir. He deposed that on the same day Subedar had visited the place of wardat in his presence and in presence of co-mashir Jatoi and it was about 1-45 PM to 2-00 PM time. The place of wardat is situated in deh Jumo Kobhar. The Subedar had collected the blood stained earth from the spot and had put such blood stained earth in a plastic shopper. Five empty shell of automatic machine and six empty shells of 12 bore cartridges were secured from the place of wardat which were also put in a plastic shopper, one empty shell of pistol bullet was also secured by the Subedar, one CD-70 Motorcycle of red colour was secured by the Subedar from the spot and on inspection found having bullets on its seat and fuel tank. Such mashirnama of place of wardat, recovery of bullets casings, 12 bore cartridges, Motorcycle, blood stained earth was prepared by Subedar on spot in his presence and in presence of co-mashir. He deposed that the recovered Motorcycle and other secured property were brought to police station in police mobile. He was cross-examined at length and while replying the questions this witness negated the suggestions by stating that "It is incorrect to say that Mst. Meenhan was declared "Kari" by her father and her uncle the complainant of this case. It is incorrect to say that injured Jageer and deceased Sijawal had gone to kill Mst. Meenhan along with other persons. It is incorrect to say that the injured Jageer and deceased Sijawal had received fire-arm shots from their own companions in wardat to commit murder of Mst. Meenhan who luckily made save." No major contradictions favourable to the appellant are found in his evidence.

12. The prosecution examined investigation officer of the case namely Abdul Wahab as PW.No:5 who deposed that on 04-11-2005, he was posted at police station Daharki in investigation branch. He received the FIR No.149/2005 under section 302 P.P.C., for investigation and perused the contents of FIR. Complainant himself arrived before him and he took him to Taluka Hospital Daharki and inspects the injuries of injured P.W Jageer who had six fire-arm injuries. He had prepared such mashirnama of injuries in presence of mashirs Jatoi and Gosho. Thereafter, he recorded statement of P.W Jageer under section 161 Cr.P.C. and went to mortuary of Taluka Hospital and saw the dead body of deceased Sijawal properly who had received one fire-arm shot from left side of abdomen which has gone through and through and the exit wound was on right side of his abdomen. He had prepared such mashirnama of dead body and inquest report for the dead-body of deceased. Thereafter, right from Taluka Hospital Daharki along with complainant and same mashirs proceeded to village Jumo Kobhar Dhandh Raharki. The place of wardat was pointed out by complainant Nawab, which was situated near the house of accused Moriro Kobhar and it was just on kacha sarak where the blood was lying on the earth. The complainant pointed out that the blood lying at wardat on south side was belonging to deceased Sijawal and blood available on the northern side was belonging to P.W Jageer which he collected and sealed separately. He also recovered one Motorcycle of red colour CD-70 bearing Registration No.4529. He also recovered six empties of 7.62 bore bullets and five empties of 12 bore empty cartridges from the Wardat as well as one 30 bore empty bullet from the wardat which were taken in police custody which were not sealed at the spot. The Motorcycle was seen and he found one bullet hit on its seat and one bullet hit on its fuel tank which was also taken in police custody and such memo of wardat was prepared by him in presence of mashir which was explained to them their LTl's were obtained. He received the blood stained clothes of deceased from the doctor through constable Allah Bux and prepared such mashirnama of the production of blood stained clothes. Thereafter, he was transferred to some other police station and handed over the papers to Inspector Ansar Ahmed Mithyani. The investigation officer was cross-examined at length but I could not find any contradiction in his evidence.

13. The prosecution also examined Ansar Ali as PW-09 who deposed that on 24.11.2005 he was posted as SIO at P.S Daharki. Where he received FIR vide crime No.149 of 2005 under section 302 P.P.C. for investigation. He perused the papers already prepared by investigation officer SIP Abdul Wahab Pitafi. On next day, he recorded statement of remaining witness namely Jageer under section 161 Cr.P.C. Thereafter on 01.12.2005 during investigation when they reached at Raharki Chowk he apprehended two persons, they disclosed their names to be Muhammad Hayat and Sobharo, who were required in crime No.149/2005, and prepared such mashirnama in presence of SIP Aftab Ahmed and HC Muhammad Azeem. On 07.12.2005 he arrested accused Moriro from Muhammad Pur road and prepared such mashirnama in presence of mashirs Sahibdino and Wariyam. After completion of usual investigation, he submitted the case before the court of law. He was cross-examined, in which he negated the suggestion that he completed all the formalities at investigation office at the instance of complainant party. He further stated in his cross-examination that "It is fact that P.W Mazari Kobhar in his 161 Cr.P.C statement dated 25.11.2005 recorded before me stated that accused Mushtaque Kobhar caused fire-arm injury to deceased Sijawal on his left side of abdomen which was through and through. It is fact that P.W Mazari in his 161 Cr.P.C statement also stated before me that injured Jageer Kobhar was having fire-arm injuries on his left shoulder, right arm and thigh. It is fact that P.W Mazari is real brother of complainant Nawab." On careful scrutiny I do not find any substance favourable to appellant.

14. The prosecution also examined PW Ghulam Nabi the Tapedar of the beat who exhibited the sketch of the place of wardat which was prepared during the investigation. The prosecution also examined PW Allah Bux who deposed that on 04.l1.2005, he was posted as police constable at police station Daharki in investigation branch. On the said date at about 01-30 p.m. SIP Abdul Wahab Pitafi delivered him the dead-body of deceased Sijawal Kobhar for post-mortem under inquest report. He took the dead-body to Taluka Hospital Daharki along-with one Abdul Rehman Kobhar and delivered the dead-body to Doctor Permanand of Taluka Hospital Daharki for post-mortem and report who conducted the post-mortem of deceased thereafter he delivered the dead-body of deceased to Abdul Rehman Kobhar relative of deceased under receipt. These both witnesses were cross-examined but I do not find any substance favourable to the appellant. PW Abdul Razzak the Head Constable, author of the FIR was examined, however he was not cross-examined as the registration of FIR is not disputed.

15. In support of the ocular evidence as discussed above the prosecution examined Dr. Permanand who conducted the postmortem of deceased and medically examined the injured Jageer. He deposed that on 04-11-2005, he was posted at Taluka Hospital Daharki. On the same date, he received injured Jageer son of Arz Muhammad, Kobhar and deceased Sijawal son of Soomar through police letter No. 149/2005, for treatment, medical certificate-and postmortem. First of all, he examined injured Jageer and found following injuries on his person.

1-A Lacerated punctured wound I cm in diameter and through and through over posterior aspect of left shoulder margins inverted [wound of entrance]

1-B Lacerated wound l cm in diameter through and through over anterior aspect of left shoulder margins an averted [wound of exit]

2-A Lacerated wound l cm x 1.5 cm x muscle deep over anterior aspect of left chest wound is open in its whole course injuries is through and through.

3- Lacerated wound 3 cm x l cm x muscle deep over posterior aspect of right elbow joint wound is open in its whole course injury is through and through.

3-A Lacerated punctured wound 1 cm in diameter through and through over anterio aspect of upper part of the thigh. Margins inverted.

4-B Lacerated wound l cm in diameter through and through over anterio medical aspect of upper left thigh. Margins averted [wound of exit]

5- Lacerated punctured wound 1 cm in diameter through and through over anterio medical aspect of upper left thigh margins inverted would of entrance.

6- Lacerated punctured wound 1 cm in diameter x muscle deep over middle of left leg margins inverted wound of entrance.

7- Abrasion 1 cm in diameter over right lower leg.

The X-Rays of injured were taken bearing plate Nos.L-749, 750. 751, 752, 753 dated 04-11-2005. X-Rays do not show anybody lesion but two radio opaque shadow of big pellet were seen in these X-Rays. As per his opinion all the injuries were caused by fire-arm and injuries No. l to 06 were Ghyr Jaifah Mutalimah and injury No.7 Jurh Ghayr Damiyah.

He further deposed that thereafter he examined the dead-body of deceased Sijawal son of Soomar by caste Kobhar. Body was brought by PC/1726 Allah Bux Samo. I/T P.S Daharki, vide letter No.Cr/-149/2005. Body was identified by Soomar and Mazari father and uncle of deceased on 04-11-2005. He conducted postmortem at 01-45 PM and finished at 02-45 PM on the same date. On the external appearance a dead-body of male muslim, young with average built wearing clothes dark green shirt and shalwar and white banian. External injures were noted as under:-

1-A Lacerated punctured wound 1 cm in diameter x abdominal cavity deep at left number region margins inverted {wound of entrance}.

1-B Lacerated wound 3 and half cm x one and half cm x chest cavity deep over right lateral side of lower chest margins inverted injury is through and through wound of exit.

On internal examination of deceased he found, right lung, stomach, liver, small intestine and spleen were damaged while pleurae and diaphragm lacerated at site of injury. From the external as well as internal examination of deceased Sijawal son of Soomar, he is of the opinion that death occurred due to shock and hemorrhage caused by discharge of fire-arm. Injury No. l is ante mortem in nature and can cause death in ordinary course of life. This witness was also cross-examined and confirmed that he conducted the postmortem on the day of Eid-ul-Fiter. He also confirmed during cross-examination that the injured Jageer has four entrance wound and two exit wound on the body and the injuries sustained by the injured Jageer were received at the distance of more than one meter. There was no blackening and charring on the body of injured. He during cross-examination also stated that "There were holes on the clothes of deceased Sijawal. Deceased Sijawal sustained only on injury, which he received at the distance of more than one meter. There was no blackening and charring on dead body of deceased." During his cross-examination nothing favourable to appellant came on record for extending any benefit.

1. I have also considered the evidence of defence witnesses produced on behalf of the appellant and found that those were cooked up witnesses. The appellant took specific plea that he was not available at the place of incident at that time and the complainant party attacked upon their houses in order to commit murder of Mst. Meehan by declaring her Kari but the deceased and the injured Jageer received firearm injuries from the firing of their companion. Mst. Meehan was examined as defence witness but on careful perusal of her evidence it is established that she has tried to save appellant party and gave false evidence in their support. The said DW Mst. Meehan deposed that "On 04-11-2005, it was Eid-ul-Fiter day and our male members had gone to offer Eid prayer at Sui-Shareef and in their absence at about 10-00-a.m accused persons namely Sijawal, Jageer, Manzorr, Liaqat, Shoukat and Zameer having K.Ks and pistols in their hands entered into our house to commit my murder on the allegation of "Karap" and they started firing to kill me but I saved myself inside the room and raised cries and due to firing of above named persons Sijawal Kobhar and Jageer received the fire-arm injuries from the hands of their own companions." Her evidence has no support as such carries no any weight. On the other hand the prosecution has proved its case that the incident took place near to house of one Hazaro and not in the house of Mst. Meehan. The mashirnama of place of wardat also reflects that the place of wardat is situated outside the house of Moriro and not inside of any house as claimed by the said DW Mst. Meenhan. The evidence of DW Muhammad Shahban is also not helpful to the appellant as according to him firstly he came to know about the incident and thereafter he went and inform such incident to the appellant party at Sui-Shareef. He was not available at Sui-Shareef with the appellant at the time of incident, therefore his evidence cannot be relied upon.

2. In the present case there appear two eye witnesses of the incident including one injured witness (Jageer) who received firearm injuries and the same are supported by the medical evidence. They have fully supported the case against the appellant by specifically deposing that the appellant Mushtaque had directly fired upon the deceased Sijawal from KK which hit him and they both were cross-examined at length but defence counsel could not succeeded in getting favourable contradictions. In view of such fact the contentions of the learned counsel for the appellant that the witnesses are relative to the deceased and are interested, therefore, their evidence cannot be relied upon has no force as although the witnesses are relatives of the deceased but they specifically narrated each and every aspect of the incident, one of them namely Jageer received firearm injuries from the hands of the accused persons thus the presence of eye-witnesses at the time of incident had established beyond a reasonable doubt. The Honourable Supreme Court in the case of Nasir Iqbal alias Nasra and another v. The State (2016 SCMR 2152), has held as under:-

"In the above circumstances, we found that the ocular evidence furnished by the eye-witnesses to be credit worthy and confidence inspiring and we have not been able to observe any defect or material lacunas in their evidence; their presence at the spot had been established beyond any shadow of doubt; both the eye-witnesses were of course closely related to the deceased but fact of the matter remains that their mere relationship would not render them to be interested or partisan witnesses when the same has been corroborated with the medical evidence as well as the recoveries of crime weapon and the motive has fully been proved as such in our view no interference is required in conviction of the appellants."

1. To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be a universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and that he is making true statement. A person who is reported otherwise to be very honest, above the board and very respectable in society if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement as has been held by the Honourable Supreme Court of Pakistan in case of Abid Ali and 2 others v. The State (2011SCMR 208).

2024 M L D 1237

[Sindh]

Before Salahuddin Panhwar, J

Zulfiqar Ahmed---Appellant

Versus

Muhammad Nadeem and 2 others---Respondents

IInd Appeal No. S-193 of 2022, decided on 12th July 2023.

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

----S.100---Second appeal---Scope---Scope of second appeal is narrow and it can be exercised only if the decision is contrary to law; there is failure to determine some material issue of law; and there is substantial error or defect in the procedure provided by the Civil Procedure Code, 1908, or law for the time being in force which may possibly have emanated an error or slip-up in the determination or decisiveness of the case on merits---To succeed in second appeal, the appellant must establish that the finding of facts arrived at by the first Appellate Court is not found to be substantiated by evidence on the record and is result of its failure in determining the material issue or that the conclusions, so drawn, are contrary to settled principles of law.

Gulzar Ahmad and others v. Ammad Aslam and others 2022 SCMR 1433 ref.

(b) Malicious prosecution---

----Suit for malicious prosecution---Acquittal of the plaintiff in FIR---Reasonable or probable cause in lodging FIR by the defendant---Every case, which ends in acquittal, would entitle the guiltless accused to sue for damages, as in that case, the damage caused would be beyond repair and the criminal justice system would come to a halt---As by doing so, the aggrieved person would suffer at the hands of the incompetent investigation and the people would lose the courage to register their claims and the same would in turn lead to a chaos---Burden is and would be on the person claiming damages that whether such prosecution was based on malice or not---Malicious prosecution means to obtain a collateral advantage---It is to be seen whether due to ill will or any indirect or improper motive, without any reasonable or probable cause, prosecution has instituted or FIR has been lodged---The test would not be whether the criminal proceedings instituted on false and frivolous allegations had reached the court rather would be that such proceedings had reached a stage at which damage to the plaintiff resulted, providing a tort for redressal for having been prosecuted without reasonable cause and with malice.

Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700; Niaz and others v. Abdul Sattar and others PLD 2006 SC 432 and Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478. ref.

(c) Malicious prosecution---

----Action for malicious prosecution---Ingredients---Proceedings initiated by the claimant require that the original proceedings (prosecution) must have been malicious and without any reasonable and probable cause---Every person in the society has a right to seek protection of his rights, but while doing so, such person should not infringe the corresponding rights of others by instituting improper legal proceedings in order to harass them by unjustifiable litigations---To succeed in an action for malicious prosecution, a claimant must plead and prove the following ingredients: (i) that plaintiff was prosecuted by the defendant; (ii) that the prosecution ended in favour of the plaintiff; (iii) that the defendant acted without reasonable and probable cause; (iv) that the defendant was actuated by malice with improbable motive and not to further the ends of justice; and (v) that the proceedings had interfered with the plaintiff's liberty and had also affected his reputation and the plaintiff had suffered damages.

(d) Malicious prosecution---

----Suit for damages for malicious prosecution---Acquittal under the provisions of the Criminal Procedure Code, 1898---"Honourable acquittal"---Scope---Appellate Court , dismissing claim of the plaintiff, observed that as the appellant was not acquitted honourably by the Trial Court, therefore, the case of the appellant did not fall within the ambit of malicious prosecution---Held, that the said observation of the Appellate Court was not tenable for the reason that the word "honourable acquittal" was alien to the Criminal Procedure Code, 1898---Acquittal is an acquittal simpliciter and must entail all consequences of pure acquittal---Clean acquittal and acquittal through benefit of doubt amount to honourable acquittal.

Mumtaz Ali Shah v. Chairman PTCL, H.Q Islamabad and 6 others PLD 2002 SC 1060; Abdul Majeed Khan v. Tawsen Abdul Haleem and others 2012 CLD 06; Dr. Muhammad Islam v. Government of N.W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others 1998 SCMR 1993 ref.

(e) Malicious prosecution---

----Purpose---At times, while lodging of criminal cases, wider net is cast to implicate an accused including other family members to ensure that none of them is left free to pursue their case in Court---After trial in many cases the accused who are nominated are acquitted---However, in number of cases the complainant of the case walks away freely without facing the consequences of a false accusation---Societal propensity towards false accusations in FIRs can potentially be curbed through civil suits for malicious prosecution.

Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478 ref.

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

----O. VII , R. 11 & O. VI , R. 2---Suit for malicious prosecution---Rejection of plaint---Scope---Pleadings---Claim in the plaint---Defence, considering of---Claim of the plaintiff was that due to criminal case lodged by the defendant , he lost his reputation in the eyes of general public as well as friends and he was also detained in jail for a sufficient period till he was bailed out by the Court and that after full-dressed trial, he was acquitted---Civil Court rejected the plaint , which order was maintained by the Appellate Court---Validity---From the record ( averment of plaint, the impugned orders, the judgment of acquittal ) it would not be possible to say that the plaint did not have any proof of the four elements required in a suit for malicious prosecution---Basic contentions of the appellant/plaintiff were clearly contained in the plaint---The question of proof would arise only after issues are framed and the opportunity to lead evidence is given to the parties---The plaint is to contain the facts, which it clearly contained and the manner in which the same would be proved was up to the appellant/plaintiff---This was not a case where on a plain reading of the plaints no cause of action existed for malicious prosecution, especially owing to the FIR which was lodged, the appellant/plaintiff faced full-dressed trial, the subsequent acquittal and the nature of allegations in the plaints---In view of the provisions of the O. VI, R.2, C.P.C., 1908 , the pleading is not a substitute of the evidence---In such circumstances, without providing opportunity to the appellant / plaintiff to prove his pleadings through evidence , it would not be just and proper to reject the plaint---Even , in such like cases, the Courts may not consider the defence brought by the opponent---Thus, the plaint , in the present case, was not liable to be rejected in a summary manner under O. VII, R. 11, C.P.C---High Court set aside impugned judgment passed by the Appellate Court as well as order passed by the Trial Court and remanded the back to the Trial Court with direction to decide the suit afresh after recording evidence of the parties---Appeal filed by the plaintiff was allowed accordingly.

Saleem Malik v. Pakistan Cricket Board (PCB) and 2 others PLD 2008 SC 650 and Jewan and 7 others v. Federation Of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826 ref.

Farjad Ali Khan for Appellant.

Nemo for Respondent No. 1.

Ali Zardari, AAG for Respondents Nos. 2 and 3.

Date of hearing: 17th May, 2023.

Judgment

Salahuddin Panhwar, J.---Through captioned IInd-Appeal, the appellant has challenged judgment dated 08.09.2022, passed in Civil Appeal No.60/2022, whereby the first appeal was dismissed and order dated 18.02.2022 passed by trial Court in Suit No. 453/2021, whereby the plaint was rejected under Order VII Rule 11 C.P.C was upheld.

1. Briefly facts relevant for disposal of the instant appeal are that the respondent No.1 lodged FIR bearing Crime No. 143/2016 at PS FIA, AHT Circle, Karachi for offences under section 17(2), 22(6) of Immigration Ordinance, 1979 against the appellant and others. After full-dressed trial, the appellant was acquitted of the charges vide judgment dated 29.02.2020. After earning acquittal, the appellant filed a suit for "Defamation, Damages, Compensation for malicious prosecution for amount of Rs.140,00,000/-" against the respondent No.1. In the first round, the trial Court rejected the plaint of the Suit vide order dated 02.03.2021, on appeal, vide judgment dated 28.10.2021, the matter was remanded back to the trial Court with direction to decide the queries with regard to jurisdiction and maintainability of suit as afresh in accordance with law after providing opportunity of hearing to the counsel for both the parties. On remand, the plaint was again rejected under Order VII Rule 11 C.P.C and on appeal the said order was upheld, hence this second appeal.

2. Notices were issued to the respondent No.1, but he chose to remain absent, therefore after completing all the modes of the service including publication, against the respondent No.1, he was proceeded in Ex-parte.

3. Learned counsel for the appellant argued that the impugned judgment/order are passed without taking into consideration the material; that no opportunity was provided to the appellant to adduce the evidence in support of his claim; that no application under Order VII Rule 11 C.P.C. was moved. However, the trial Court by exercising suo motu powers rejected the plaint under Order VII Rule 11 C.P.C, without any cogent reasons; that false implication of the appellant is apparent from the judgment passed by the learned Special Judge (Central-I), Karachi in Case No. 26/2017; that even in evidence the respondent No.1 has taken contradictory version, hence the benefit of doubt was extended in favour of the appellant, who was acquitted by the trial Court; that due to false implication of the appellant, he suffered immense damages mentally as well as he had to face rigors of trial; that the learned appellate Court has also misconstrued that the appellant was not acquitted honourably which finding is alien to the Criminal Procedure Code, 1898 as honourable acquittal is not provided in Code; He maintained that it is held by the apex Court that an acquittal through benefit of doubt amounting to honourable acquittal. In support of his submissions, reliance is placed upon the cases reported as Mumtaz Ali Shah v. Chairman PTCL, H.Q Islamabad and 6 others (PLD 2002 SC 1060), Tariq Pervez v. The State (1995 SCMR 1345), Muhammad Nawaz and others v. The State (1994 SCMR 1614), Muhammad Yousaf v. Abdul Qayyum (PLD 2016 SC 478) and 11 (2012 CLD 6 [SC]).

4. Heard and perused the record.

5. Before going into the merit of the case in hand, I would like to examine the scope of the 2nd Appeal in the matter of conflicting findings of the courts below.

6. The scope of the 2nd appeal is narrow and it could be exercised only if the decision is being contrary to law; failure to determine some material issue of law, and substantial error or defect in the procedure provided by the Code or law for the time being in force which may possibly have emanated an error or slip-up in the determination or decisiveness of the case on merits, in Gulzar Ahmad the apex Court has held that:

"7. Compliant with section 100, C.P.C., the second appeal only lies in the High Court on the grounds that the decision is being contrary to law; failure to determine some material issue of law, and substantial error or defect in the procedure provided by the Code or law for the time being in force which may possibly have emanated an error or slip-up in the determination or decisiveness of the case on merits. Meaning thereby, it does not lie to question the findings on facts. In the case of Madan Gopal v. Maran Bepari (PLD 1969 SC 617), this court held that if the finding of fact reached by the first appellate court is at variance with that of trial court, such a finding by the lower appellate court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first court which have been disfavored in the contrary finding. It was further held that interference would be justified if the decision of the lower courts is found to be contrary to law or some usage having the force of law has failed to determine some material issue of law. Whereas in another case reported as Amjad Ikram v. Mst. Asiya Kausar (2015 SCMR 1), the court held that in case of inconsistency between the trial court and the appellate court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary as has been held by this court in the judgments reported, as Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others (2013 SCMR 1300)."

[Emphasis supplied]

1. The above legal position, prima facie, makes it clear and obvious that to succeed in second appeal, the appellant must establish that the finding of fact arrived at by the first appellate court is not found to be substantiated by evidence on the record and is result of its failure in determining the material issue or that conclusions, so drawn, are contrary to settled principles of law.

2. It is pertinent to mention here, that every case, which ends in acquittal, would entitle the guiltless accused to sue for damages, as in that case, the damage caused would be beyond repair and the criminal justice system would come to a halt. As by doing so, the aggrieved person would suffer at the hands of the incompetent investigation and the people would lose the courage to register their claims and the same would in turn lead to a chaos. The burden is and would be on the person, claiming damages that whether such prosecution was based on malice or not. Malicious prosecution means to obtain a collateral advantage. The act of a defendant is to be seen, whether it was due to ill will or any indirect or improper motive, see Subedar (Retd.) Fazale Rahim case wherein held that:

"Mere fact that prosecution instituted by the defendant against the plaintiff ultimately failed, cannot expose the former to the charge of malicious prosecution unless it is proved by the plaintiff that the prosecution was instituted without any reasonable or probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect."

1. It is pertinent to mention that the proceedings initiated under this law requires that the original proceedings must have been malicious and without any reasonable and probable cause. Every person in the society has a right to seek protection of his rights, but while doing so, such person should not infringe the corresponding rights of others by instituting improper legal proceedings in order to harass them by unjustifiable litigations. For a claimant to succeed in an action for malicious prosecution, must plead and prove the following ingredients:

i. That plaintiff was prosecuted by the defendant;

ii. That the prosecution ended in favour of the plaintiff;

iii. That the defendant acted without reasonable and probable cause;

iv. That the defendant was actuated by malice with improbable motive and not to further the ends of justice; and

v. That the proceedings had interfered with the plaintiff.s liberty and had also affected his reputation and the plaintiff had suffered damages.

1. In another case Niaz v. Abdul Sattar it has discussed .reasonable and probable cause. and further in respect of filing and lodging of false FIRs. The relevant observations are that:

"8. The maxim "The reasonable and probable cause" means that it is an honest belief in the guilt of the accused based upon full conviction, based on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true would reasonably lead any ordinary prudent man to the conclusion that the person charged was probably guilty of crime imputed. See (1881) 8 QBD 167 Hicks v. Faulkner. It is also a settled principle of law that if reasonable and probable cause is established, then question of malice becomes irrelevant as observed by Denning L.J. in Tempest v. Snowden (1952) 1 K.B. 130.

"10. We have also re-examined the evidence in the interest of justice and fair play. We are of the view that both the courts below were justified to award nominal damages to the petitioners. It is a high time to put the nation on a right path to promote the law of tort. According to us in case citizens and the courts are conscious to save the nation from the agony of telling lies or involving innocent persons in criminal cases, then the only solution to stop this frivolous litigation for the purpose of taking revenge from the other side is to file suits for damages as and when the competent forum has declared the accused persons as innocent acquitted/discharged by the competent court so that prosecution must lodge genuine cases."

1. Reverting back to the case in hand it appears that respondent No.1 lodged FIR bearing Crime No. 143/2016 at PS FIA, AHT Circle, Karachi for offences under section 17(2), 22(6) of Immigration Ordinance 1979. According to the appellant due to such criminal case, he lost his reputation in the eyes of general public as well as friends and he was detained in jail also for a sufficient period till he was bailed out by the Court. It is further stated that after full-dressed trial, he was acquitted. However, the learned Appellate Court observed that as the appellant was not acquitted honourably by the trial Court, therefore, the case of the appellant did not fall within the ambit of malicious prosecution, such observation of learned Appellate Court is not tenable for the reason that the word "Honourable acquittal" is alien to the Criminal Procedure Code, 1898 and such word is nowhere provided in the Code. Acquittal is an acquittal simpliciter and must entail upon all consequences of pure acquittal. Clean acquittal and acquittal through benefit of doubt amounting to honourable acquittal. Rightly reliance has been placed upon the case of Mumtaz Ali Shah PLD 2002 SC 1060 (supra). However, the Apex Court has held in the case of Abdul Majeed Khan that when claimant is subjected to criminal prosecution and as a consequence of which he loses or risks of losing his liberty and/or his reputation, a remedy in the tort of malicious prosecution will lie. Relevant portion of the judgment of the apex Court passed which reads as:

"20. Where the claimant has been subjected to a criminal prosecution, as a consequence of which he loses or risks of losing his liberty and /or his reputation, a remedy in the tort of malicious prosecution will lie. The institution of a civil action should exceptionally, results in liability under tort, when the claimant loses the suit, the defendant's reputation is restored and he recovers his cost spent on defending the action....."

Underlining is provided for emphasis

1. In the Case of Dr. Muhammad Islam it was held by the Apex Court that:

"Even in the cases where benefit of doubt has been given to the accused, it cannot be said that the charge has been established by the prosecution. The accused are to be treated as innocent unless it is proved on the basis of best possible evidence that they are connected with the Commission of the crime and as such, deserve to be convicted to meet the ends of justice. The doubt itself shall destroy the very basis of the prosecution case. 1n this view of the matter, the accused shall be deemed to have honourably been acquitted even where the benefit of doubt has been extended to them".

1. It is observed that at times, while lodging of the criminal cases, widen net is cast to implicate an accused including their other family members to ensure that none of them left free to pursue their case in Court. After trial in many cases the accused who are nominated are acquitted. However, in number of the cases the complainant of the case walks away freely without facing the consequences of a false accusation. The societal propensity towards false accusations in FIRs can potentially be curbed through civil suits for malicious prosecution. In the case reported as Muhammad Yousaf it has been observed by Supreme Court as under:-

"11. We cannot help taking notice of the fact that in numerous criminal cases which are initiated through filing of FIRs a wide net is cast to implicate accused persons and their family members particularly able-bodied males. This ordinarily is done to ensure that such able-bodied males are arrested and there is none left free to pursue their case in Court. After trial in many cases the accused who are nominated are acquitted. The accuser/complainant in most cases walks away without facing the consequences of a false accusation. Section 182, P.P.C. quite often is not used even if there is reasonable ground for initiating action under the said provision for prosecuting a person who has filed a false FIR. The societal propensity towards false accusation in FIRs can potentially be curbed through civil suits for malicious prosecution."

[Emphasis Supplied]

1. In order to find an action for damages for malicious prosecution based upon criminal proceedings, the test would not be whether the criminal proceedings instituted on false and frivolous allegations had reached the court rather would be that such proceedings had reached a stage at which damage to the plaintiff resulted. In the case of Muhammad Yousaf id, it has been observed that "a tort which provides redress to those who have been prosecuted without reasonable cause and with malice".

2. This Court has perused the averment of plaint, the impugned orders, as also the judgment of acquittal and is clearly of the opinion that at this stage it would not be possible to say that the plaint does not have any proof of the four elements required in a suit for malicious prosecution. The basic contentions of the Appellant/Plaintiff are clearly contained in the plaint. The question of proof would arise only after issues are framed and the opportunity to lead evidence is given to the parties. The plaint is to contain the facts, which it clearly contains. The manner in which the same would be proved is up to the Appellant/Plaintiff. This is not a case where on a plain reading of the plaints no cause of action exists for malicious prosecution, especially owing to the FIR which was lodged, the Appellant/Plaintiff faced full-dressed trial, the subsequent acquittal and the nature of allegations in the Plaints. Thus, the plaint is not liable to be rejected in a summary manner under Order VII Rule 11 C.P.C. As per provisions of Order VI Rule 2, C.P.C., every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved..." In view of the provisions of Order VI Rule 2, C.P.C., the pleading is not a substitute of the evidence. In such circumstances, without providing opportunity to the Plaintiff to prove his pleadings through evidence, it will not be just and proper to reject the plaint. In the case of Saleem Malik, it has been held by the Supreme Court of Pakistan that:

"Subject to the certain exception to the general principle, the plaint in the suit cannot be rejected on the basis of defence plea or material supplied by the opposite party with the written statement. This is settled law that in case of controversial questions of fact or law, the provision of Order VII, Rule 11, C.P.C. cannot be invoked rather the proper course for the Court in such cases is to frame issue on such question and decide the same on merits in the light of evidence in accordance with law. The rejection of plaint on technical grounds would amount to deprive a person from his legitimate right of availing the legal remedy for undoing the wrong done in respect of his legitimate right, therefore, the Court may in exceptional cases, consider the legal objection in the light of averment of the written statement but the pleading as a whole cannot be taken into consideration for rejection of plaint under Order VII, Rule 11, C.P.C."

2024 M L D 1259

[Sindh]

Before Adnan Iqbal Chaudhry and Jawad Akbar Sarwana, JJ

Mansoor Ali---Petitioner

Versus

District Returning OfficerS N-A 231 and N-A 230 and others ---Respondents

C.Ps., Nos. D-88 and D-89 of 2024, decided on 9th January, 2024.

Constitution of Pakistan ---

---Art. 63(1)(o)---Elections Act ( XXXIII of 2017 ), S. 62 (10) --- Rejection of candidate's nomination papers ---Tax liability of candidate --- Liability existing "at the time of filing of nomination papers"---Scope---Knowledge of tax liability---Subsection (10) of S.62 of the Elections Act, 2017, benefit of---Returning Officer rejected the candidate's nomination papers on the ground that as per a letter received from the concerned officer, a sum of Rs. 672,500/- was outstanding against him as income tax--- Contention of the petitioner was that though no such liability was outstanding, nonetheless he paid the amount on the next day followed by issuance of No Demand Certificate by Federal Board of Revenue to him which was then placed before the learned Election Tribunal with his appeals--- However, the Election Tribunal , relying on Art. 63(1)(o) of the Constitution held that since such liability existed "at the time of filing of nomination papers", the subsequent payment could not rescue the petitioner, and also the benefit of subsection (10) of S.62 of the Elections Act, 2017, was not given to the petitioner by observing that he could not say that he did not have knowledge of his tax liability---Letter in-question on which the Returning Officers had placed reliance, suggested that income tax liability of the petitioner for tax year-2022, which amount to Rs. 769,235/- was not paid, whereas the income tax return for that tax year placed on the record determined the tax payable as Rs. 73,095/-, and he (petitioner) had placed on record the paid challan of said amount--- Therefore, it appeared that the letter-in-question might not be correct--- In such circumstances, even the material relied upon by the Returning Officer for rejecting the Petitioner's nomination forms, was hardly sufficient to disenfranchise him--- Thus, it could also not be said that the petitioner had deliberately suppressed his tax liability--- Consequently, the benefit of subsection (10) of S.62 of the Elections Act, 2017, should have been extended to the petitioner when he had in any case cleared the alleged tax liability before the last date of scrutiny of nomination papers, and well before he filed appeals before the Election Tribunal--- It is inopportune to disfranchise a candidate at the pre-election stage as that would deprive him of candidature if subsequently it is found that he was qualified--- High Court set-aside orders passed by the Returning Officer as well as Election Tribunal while directing the Returning Officer to revise the list of validly nominated candidates accordingly --- Constitutional petition , filed by the candidate, was allowed accordingly.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, NA-158, Naushero Feroze 1994 SCMR 1299 ref.

Ali Tahir, along with Muhammad Hashim Sairai for Petitioner (in both Petitions).

Abdul Rahim Qureshi, Returning Officer, NA-231 (Malir-III), is present in Court (in C.P. No. D-88/2024].

Qazi Ayazuddin Qureshi, Assistant Attorney General, along with Riaz Ahmed, Director (Law), ECP and Sarmad Sarwar, Assistant Director (Law), ECP, Karachi Respondents 2 - 3. [In both Petitions).

Nemo for Respondent No. 4.

Date of hearing: 9th January, 2024.

Judgment

Adnan Iqbal Chaudhry, J.--- The Petitioner is aggrieved of orders dated 27-12-2023 and 24-12-2023 passed by the Returning Officers, NA-231 (Malir-III) and NA-230 (Malir-II), Karachi, rejecting the Petitioner's nomination papers; which were then maintained by the learned Election Tribunal by a common order dated 05-01-2024 passed in Election Appeals Nos. 10/2024 and 11/2024 respectively.

1. The ground taken by the Returning Officers for rejecting the nomination papers was that as per a letter dated 24-12-2023 received from the Second Secretary (IR-Jurisdiction), a sum of Rs. 672,500/- was outstanding against the Petitioner as income tax. It is the case of the Petitioner that though no such liability was outstanding, nonetheless he had requested the Returning Officers to give him an opportunity to settle the same, but the Returning Officers declined. The Petitioner paid the amount on the next day i.e. 28-12-2023 and the Federal Board of Revenue issued a No Demand Certificate to him which was then placed before the learned Election Tribunal with his appeals under section 62 of the Election Act, 2017. However, the learned Election Tribunal relied on Article 63(1)(o) of the Constitution of Pakistan to hold that since such liability existed "at the time of filing of nomination papers", the subsequent payment could not rescue the Petitioner. The learned Tribunal was also not inclined to give benefit of subsection (10) of section 62 of the Elections Act, 2017, to the Petitioner by observing that the Petitioner could not say that he did not have knowledge of his tax liability.

2024 M L D 1267

[Sindh]

Before Adnan Iqbal Chaudhry, J

Askari bank Limited---Palintiff

Versus

Hafiz Ghulam Murtaza---Defendant

Suit No. 1660 of 2015, decided on 11th March, 2024.

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

----Ss. 15 & 16---Limitation Act (IX of 1908), Art. 110---Specific Relief Act (I of 1877)---Ss. 8 & 10---Suit for recovery of possession, arrears of rent and compensation--- Rented premises---Civil Court, jurisdiction of---Plaintiff was owner of industrial unit which was rented out to defendant---Plaintiff sought recovery of possession and arrears of rent from defendant---Validity---Provision of Sindh Rented Premises Ordinance, 1979, is not intended as a statute for recovery of rent---Order of deposit of arrears of rent under S.16(1) of Sindh Rented Premises Ordinance, 1979, can follow only where a case of eviction of tenant has been filed---Consequence of non-deposit provided in S.16(2) of Sindh Rented Premises Ordinance, 1979, is summary eviction, not a decree for arrears of rent---Civil suit for recovery of arrears of rent, under S.16 of Sindh Rented Premises Ordinance, 1979, is not ousted nor it defers such cause of action until an order for deposit is made by Rent Controller thereunder---Though remedy for eviction lies before Rent Controller but suit is maintainable for recovery of arrears of rent---When plaintiff files an ejectment application before Rent Controller and invokes S.16(1) of Sindh Rented Premises Ordinance, 1979, Rent Controller only takes into account any decree passed by Civil Court for recovery of rent---Arrears of rent were sought to be recovered from 22-06-2009, whereas suit was filed on 02-09-2015--- Limitation prescribed for a suit for recovery of arrears of rent, as per Art. 110 of Limitation Act, 1908, is three years from the date "when the arrears become due"--- Recovery for period prior to 01-09-2012 was time-barred--- High Court declined to make any adjustment to arrears of rent as no rent was ever paid by defendant to plaintiff--- Suit was decreed accordingly.

Amatul Begum v. Muhammad Ibrahim Shaikh 2004 SCMR 1934; Rahman Cotton Factory v. Nichimen Co. Ltd. PLD 1976 SC 781; Bashir Ahmad v. Zubeda Khatoon NLR 1983 Civil 225 = 1983 CLC 390; Muhammad Ismail v. Abdul Habib PLD 1993 Kar. 181; M.J. Hemani v. Abid Ali PLD 1994 Kar. 112; Ahmad Hassan v. Abdur Rauf Khan 1986 SCMR 494; Nisar Hussain v. Haji Abdul Fateh 2001 CLC 1162; Muhammad Sharif v. Saeed Akhtar Hussain PLD 1985 Lah. 365; Muhammad Ilyas v. Muhammad Younas 1992 CLC 526; Turner Smith & Company v. Additional District Judge Lahore 1988 MLD 521; and Ali Muhammad v. Ghulam Muhammad 1988 CLC 318; Muhammad Sabir v. Jehangir 1987 MLD 872; Muhammad Yasin v. Abdul Lateef Issani 1986 CLC 632; Ashfaq-ur-Rahman v. Muhammad Afzal PLD 1968 SC 230; Pervaiz Akhtar v. Additional District Judge, Rawalpindi PLD 1990 SC 681; Muhammad Amin Lasania v. Ilyas Marine and Associates PLD 2015 SC 33 and State life Insurance Corporation of Pakistan v. Plastic Rafters (Pvt.) Ltd. 2013 SCMR 1623 ref.

Lubna Aman and Irfanullah Khan for plaintiff.

Muhammad Ilyas Waraich for defendant.

Dates of hearing: 31st October and 30th November, 2023.

Judgment

Adnan Iqbal Chaudhry, J.---The prayer in the suit is for possession of factory premises on Plot No. 133, Sector-15, Korangi Industrial Area, Karachi [Demised Premises] by evicting the Defendant; for recovery of arrears of rent; and for compensation from the Defendant. It is not disputed by the Defendant that he was put in possession of the Demised Premises by Malik Ali Zain under a tenancy agreement dated 27.06.2006 which expired on 21.07.2009.

Case set-up by the parties:

1. It was pleaded by the Plaintiff that it had bought the Demised Premises from Malik Ali Zain vide conveyance deed dated 22.06.2009; that thereafter, Malik Ali Zain had given notice dated 19.09.2009 to the Defendant to attorn to the Plaintiff; that the Defendant failed to pay rent to the Plaintiff despite undertaking to do so; that on the expiry of the tenancy agreement, the Plaintiff did not renew the same; that eventually by notice dated 28.05.2015 under sections 106, 109 and 111 of the Transfer of Property Act, 1882 the Plaintiff called upon the Defendant to vacate the Demised Premises and pay the arrears of rent; and that when he failed to do so, the Plaintiff filed suit.

Earlier, the Defendant had filed Suit No. 738/2011 before the Civil Judge to restrain the Plaintiff and Malik Ali Zain from dispossessing the Defendant from the Demised Premises, which was disposed of on 25.11.2014 with the order that the Defendant shall not be dispossessed without adopting due course of law.

1. By written statement, the Defendant raised the objection that the suit was barred by the provisions of Sindh Rented Premises Ordinance, 1979; and that the claim for arrears of rent beyond three years was time-barred. Though the Defendant admitted the tenancy agreement with Malik Ali Zain, he pleaded that he had no notice of the conveyance of the Demised Premises to the Plaintiff.

2. Given the prima facie relationship between the parties as landlord and tenant under the Sindh Rented Premises Ordinance, 1979 which bestows jurisdiction on the Rent Controller, this Court had at the preliminary stage called upon the Plaintiff.s counsel to address that aspect of the matter. Reply of the Plaintiff.s counsel was that the Demised Premises was a factory and thus did not fall within the purview of said Ordinance. The orders recording the said question and reply are dated 06.10.2017, 01.10.2018 and 05.11.2018. However, the question remained pending without determination.

Issues settled (recast below):

1. On 13.02.2020, the following issues proposed by the Plaintiff.s counsel were settled by the Court :

1. Whether the Plaintiff is the owner of the suit property vide Registered Conveyance Deed dated 22-06-2009?

2. Whether the Defendant had knowledge about transfer of ownership to the Plaintiff since the service of the notice dated 19-09-2009 upon him, issued by the Advocate of previous owner and subsequent visits and correspondence of the Defendant with the Plaintiff? (Annexures "IP" to "I" to the Plaint).

3. Whether there was any written Rent Agreement between the Plaintiff and the Defendant?

4. Whether the Plaintiff has served the Legal Notice dated 28.05.2015 under sections 106, 109 and 111 of the Transfer of Property Act, 1882 upon the Defendant?

5. Whether the Defendant is bound to pay arrears of the monthly rent to the Plaintiff from 22-06-2009 till date for possession/occupation at the rate of Rs.210,000/- per month till handing over the possession of the suit property to the Plaintiff?

6. Whether the Defendant is liable to deliver peaceful, vacant and physical possession of the suit property to the Plaintiff?

7. Whether the Defendant is liable to pay the compensation amount of Rs.1,000,000/- to the Plaintiff for filing false and frivolous Suit No. 738/2011 before XIX Civil Judge Karachi (East)?

1. What should the judgment and decree be?

2. Since the above issues did not cover the question to the maintainability of the suit before this Court, an additional issue was settled on 30.11.2023 as follows :

Whether the suit property being a factory does not fall within the definition of .premises. in section 2(h) of the Sindh Rented Premises Ordinance, 1979 and therefore a civil suit for eviction is maintainable ?

Submissions of counsel:

1. Learned counsel for the Plaintiff submitted that the Rent Controller has no jurisdiction in the matter inasmuch as the Demised Premises is a 'factory' which does not fall within the purview of the Sindh Rented Premises Ordinance, 1979 [SRPO], and hence the Plaintiff gave notice of eviction under section 106 and 109 of the Transfer of Property Act, 1882. He submitted that upon conveyance of the Demised Premises to the Plaintiff, the previous owner had given notice dated 19.09.2009 to the Defendant to pay rent to the Plaintiff; and that there were a series of letters on the record written by the Defendant to the Plaintiff acknowledging that the latter was landlord and that rent was payable to it.

Learned counsel for the Defendant conceded that the Plaintiff had become landlord of the Demised Premises upon conveyance of the Demised Premises to it. He submitted that though the Defendant did not dispute the Plaintiff's title to the Demised Premises, the dispute was on the quantum of rent being claimed by the Plaintiff. He submitted that part of the claim for arrears of rent was also time-barred.

1. Heard learned counsel and perused the record.

Additional issue re maintainability of the suit:

1. I first take up the additional issue settled by the Court on 30.11.2023 as that goes to the jurisdiction of this Court and will determine the scope of this suit.

The precise submission of learned counsel for the Plaintiff was that the Demised Premises was a 'factory' that the definition of 'building' and 'premises' in sections 2(a) and 2(h) of the SRPO do not cover a factory; and therefore the Rent Controller had no jurisdiction in the matter. Reliance was placed on Bashir Ahmad v. Zubeda Khatoon (1983 CLC 390) and Amatul Begum v. Muhammad Ibrahim Shaikh (2004 SCMR 1934).

1. The definition of 'building' and 'premises' in sections 2(a) and 2(h) of the SRPO, as well as the definition of 'building' and 'rented land' in sections 2(a) and 2(f) of the preceding West Pakistan Urban Rent Restriction Ordinance, 1959 [WPURRO], do/did not expressly exclude a 'factory' from their purview. That a factory is so excluded, was held by the Supreme Court in the case of Rahman Cotton Factory v. Nichimen Co. Ltd. (PLD 1976 SC 781), a case dealing with the provisions of the West Pakistan Urban Rent Restriction Act, 1957, more or less identical to the WPURRO that followed. The exclusion of a factory was held in the following circumstances :

"Clause (j) of section 2 of the Act defines 'urban area' as 'any area administered by a Municipal Corporation, a Municipality, a Municipal Committee, a Town Committee or a Notified Area Committee'. The ginning factory leased to the appellant is stated to be situate in Mandi Buhauddin. But there is nothing whatever to show that the factory is situate within the territorial limits of the local authority in Mandi Bahauddin. Moreover, the Act applies to 'residential building, non-residential building' and 'rented land' as defined in section of the Act and situate within an urban area. It is common ground that the lease in the instant case was of a running ginning factory equipped with machinery for processing and ginning cotton and not merely of a 'non-residential building'. Therefore, it did not fall under any of the above three categories of the properties to which the Act applied. The statement in the preamble of the Act, that it applied 'to certain premises' within the limits of urban area is also not without significance. Reading these qualifying words with definitions of the above-stated three specified kinds of property defined in section 2, leaves no manner of doubt that the Act did not apply generally to all manner of properties in an urban area: else it was otiose to particularize the properties to which the Act applied. A fortiori, the Act excluded from its operation what were property known as a factory equipped with machinery requisite for a particular manufacturing process. In essence in all such cases, the lease is for the use of the machinery which is permanently fixed in certain defined premises and not of the premises simpliciter." (Underlining supplied for emphasis)

In Bashir Ahmad v. Zubeda Khatoon (NLR 1983 Civil 225 = 1983 CLC 390), Justice Ajmal Mian speaking for this Court, compared the definitions of types of 'building' and 'rented land' in the WPURRO with 'building', 'land' and 'premises' in the SRPO, and concluded that the difference was not as much so as to distinguish the case of Rahman Cotton Factory for the SRPO. He therefore held that a factory was excluded also from the purview of the SRPO. Bashir Ahmed was then followed by other learned single judges of this Court in Muhammad Ismail v. Abdul Habib (PLD 1993 Karachi 181) and M.J. Hemani v. Abid Ali (PLD 1994 Karachi 112).

The case of Amatul Begum v. Muhammad Ibrahim Shaikh (2004 SCMR 1943) cited by learned counsel does not shed light on the topic. Though it was observed that "Technically the Controller and the High Court may be correct that the premises having been let out for establishing a flour mill, ejectment proceedings before the Controller were not competent..." but nonetheless the Supreme Court set-aside those orders and ordered eviction to do complete justice under Article 187 of the Constitution in circumstances where the parties had been in litigation for 12 years and eviction was inevitable. Thus, there was no categorical finding that a flour mill or factory was excluded from the purview of the SRPO.

1. It is to be noted that in Rehman Cotton Factory the premises that was leased was a running factory equipped with machinery. For this reason, that the lease was in essence for the use of machinery permanently fixed at the premises, it was held that it could not be termed a lease of a building simpliciter. This distinguishing feature of Rahman Cotton Factory was noted by the Supreme Court in Ahmad Hassan v. Abdur Rauf Khan (1986 SCMR 494) as follows:

"Before us, the grounds taken before the High Court are reiterated. On the point of ouster of jurisdiction of the Rent Controller, reliance is placed on Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. PLD 1976 SC 781. The authority cited by the petitioner is clearly distinguishable because, in that case, a ginning factory equipped with machinery for processing and ginning cotton was leased out as a factory, whereas in the present case, it is established as a fact that the petitioner was a tenant of the rented land and some superstructure thereon without any machinery. He is, therefore, tenant at the most of either rented land or non-residential building which comes within the ambit of the Ordinance and the Rent Controller would have jurisdiction in the matter."

1. The case of Ahmad Hassan therefore clarifies that Rahman Cotton Factory would not apply where a premises intended for a factory is let without machinery affixed thereat. Such a premises continues to be 'rented land' or 'non-residential building' within the purview of the WPURRO in jurisdictions where still applicable, and a 'premises' within the purview of the SRPO, and thus within the jurisdiction of the Rent Controller. That has remained the accepted legal position through out as illustrated below.

In Nisar Hussain v. Haji Abdul Fateh (2001 CLC 1162), Justice Ejaz Afzal Khan speaking for a learned Division Bench of the Peshawar High Court held that:

"In order to oust the jurisdiction of the Rent Controller and to take a property out of the purview of the expression building as defined by the Ordinance it has to be established that at the time of lease, it was an Industrial Unit or a Factory. If the property leased or let out was a piece of land or a vacant site at the time of creation of its lease, it would essentially be covered by the expression building as defined by the Ordinance......"

The same view was taken by the Lahore High Court in Muhammad Sharif v. Saeed Akhtar Hussain (PLD 1985 Lahore 365); Muhammad Ilyas v. Muhammad Younas (1992 CLC 526); Turner Smith & Company v. Additional District Judge Lahore (1988 MLD 521); and Ali Muhammad v. Ghulam Muhammad (1988 CLC 318).

In Muhammad Sabir v. Jehangir (1987 MLD 872), Justice Saleem Akhtar speaking for this Court also held that the fact that the plot was situated in an industrial area did not oust the jurisdiction of the Rent Controller under the SRPO unless the industrial plot was let with machinery. The same view was taken by this Court in Muhammad Yasin v. Abdul Lateef Issani (1986 CLC 632) while noticing the case of Ahmad Hassan. These cases however do not disagree with Bashir Ahmad but only distinguish it, for in Bashir Ahmed the subject matter was not a building or land simpliciter, but a saw-machine that was let with a piece of land and therefore in line with the case of Rahman Cotton Factory.

1. Coming to the facts of the present case, the tenancy agreement described the Demised Premises as "factory premises" let to the Defendant for use "as commercial trading or services and for manufacturing of any kind of goods commodities". Though the agreement indicates an existing 'structure', but no machinery along with that, and that is why clause-2 stipulated that on termination of the tenancy the Defendant shall deliver 'vacant possession'. It is also not the case of either of the parties that the Demised Premises had been let with machinery. It is apparent that what was let to the Defendant was a vacant building without any machinery, and it was for the Defendant to install machinery as per the nature of trade, service or manufacturing intended thereat. Therefore, the Demised Premises in this case does not attract the case of Rahman Cotton Factory and it remains a 'premises' within the meaning of section 2(h) of the SRPO. It is not the case of the Plaintiff that the Demised Premises falls outside an 'urban area'. Consequently, to the extent of the prayer for eviction, the Plaintiff.s remedy is before the Rent Controller under the SRPO. The additional issue stands answered in the negative.

Effect of the finding above:

1. The question now is whether this Court can or should consider the suit for recovery of arrears of rent when section 16(1) of the SRPO also empowers the Rent Controller to make an order for deposit of arrears of rent. But then, rent for the period sought to be recovered here may be time-barred before the Rent Controller in view of Article 110 of the Limitation Act which prescribes a period of 3 years from the date "when the arrears become due."

2. While dealing with section 13(6) of the WPURRO, the pre-cursor to section 16(1) of the SRPO, it was held by a 5-member Bench of the Supreme Court in Ashfaq-ur-Rahman v. Muhammad Afzal (PLD 1968 SC 230) that "recovery of rent is not the primary object of the Ordinance"; and that a Rent Controller acting under section 13(6) "cannot direct the tenant to deposit rent in respect of which the legal remedy to recover has become barred under the statute of limitation."

In Pervaiz Akhtar v. Additional District Judge, Rawalpindi (PLD 1990 SC 681) again it was held that:

"The Ordinance [WPURRO] is not a statute for the recovery of rent. A landlord who wants to recover the rent without seeking the eviction of his tenant has to file a suit for recovery of rent in the Civil Court. In case eviction is sought on the ground of default then he has to apply to the Rent Controller. The 'rent due' includes time-barred rent. The recovery of rent and eviction of tenant are two distinct cases. It is a different matter that a landlord cannot recover the amount due to lapse of time but the liability would not be extinguished. An action to recover rent in a Court of law may not be available but eviction of tenant on the ground of default will still be available to the landlord. The contention that an eviction application is not entertainable on the ground of default of time-barred rent cannot be accepted."

That case of Pervaiz Akhtar was then followed by the Supreme Court in Muhammad Amin Lasania v. Ilyas Marine and Associates (PLD 2015 SC 33), which was a case emanating from the SRPO.

1. The proposition that the SRPO is not intended as a statute for recovery of rent is borne out from the statute itself. Firstly, an order of deposit of arrears of rent under section 16(1) of the SRPO can follow only "Where a case of eviction of the tenant has been filed...." Secondly, the consequence of non-deposit provided in section 16(2) of the SRPO is summary eviction, not a decree for arrears of rent. Therefore, section 16 of the SRPO can neither be interpreted to oust a civil suit for recovery of arrears of rent, nor to defer that cause of action until an order for deposit is made by the Rent Controller thereunder. Therefore, notwithstanding that the remedy for eviction lies before the Rent Controller, the suit is maintainable for recovery of arrears of rent. Needless to state that as and when the Plaintiff files an ejectment application before the Rent Controller and invokes section 16(1) of the SRPO, the Rent Controller will take into account any decree passed by the civil court for recovery of rent.

Issues re-casted:

1. Having concluded as above, the matter under Issue No.6 is not within the domain of this Court but before the Rent Controller. Issue No.2 is a question falling under section 18 of the SRPO, which in turn goes to the question of default for the purposes of ejectment under section 15(2)(ii) of the SRPO, and therefore also falls within the domain of the Rent Controller. With that, Issues No.s 1, 3 and 4 will have to be recast. Therefore, in exercise of Order XIV Rule 5 CPC, the issues are recast as follows:

1. Whether the suit property being a factory does not fall within the definition of 'premises' in section 2(h) of the Sindh Rented Premises Ordinance, 1979 and therefore a civil suit for eviction is maintainable ? (already answered above)

2. Whether the Plaintiff is entitled to rent of the Demised Premises from the Defendant ?

3. Whether the Defendant is liable for arrears of rent @ Rs. 210,000/- per month w.e.f. 22-06-2009 till date of delivering possession of the Demised Premises to the Plaintiff?

4. Whether the Plaintiff is entitled to compensation of Rs.1,000,000/- from the Defendant for filing false and frivolous Suit No. 738/2011 before XIX Civil Judge Karachi (East)?

1. What should the decree be?

Issue No.2:

1. It was admitted by the Defendant in his written statement that he was a tenant at the Demised Premises under a tenancy agreement dated 27-06-2006 (Exhibit 5/11) with Malik Ali Zain, who was the owner of the Demised Premises at the time. In para 3 of his written statement he also admitted that after expiry of said tenancy agreement he became a statutory tenant under the SRPO. The Plaintiff had then produced as Exhibit 5/3 a registered conveyance deed dated 22-06-2009 of the Demised Premises executed by Malik Ali Zain in the Plaintiff.s favor. The preceding title documents were also produced as Exhibit 5/4, 5/5, 5/6 and 5/8. No objection was taken to the admissibility of said documents. In fact, the Defendant had not denied execution of said conveyance deed, rather his case was only that he was not given notice of such conveyance. Therefore, the Plaintiff had proved that upon execution of the conveyance deed dated 22-06-2009, it had become owner of the Demised Premises and had stepped into the shows of the previous owner as landlord.

2. The Plaintiff had also produced letters dated 01.02.2010, 02.03.2010, 15.04.2010, 07.06.2010, 23.07.2010 and 18.10.2020 (Exhibits 5/12, 5/13, 5/15 to 5/18) written by the Defendant to the Plaintiff whereby he acknowledged the Plaintiff as landlord and was negotiating rent with the Plaintiff. Therefore, even if the Defendant was not served with the notice of change of ownership dated 19-09-2009, he had otherwise acquired knowledge of the conveyance of the Demised Premises to the Plaintiff and was bound to pay rent to the Plaintiff.

3. The upshot of the above evidence is that the Plaintiff is entitled to recover rent from the Defendant. Issue No.2 is answered in the affirmative.

Issue No. 3:

1. As per clause 2 of the tenancy agreement dated 27-06-2006 (Exhibit No. 5/11), the rent payable by the Defendant was Rs. 200,000/- per month. On the other hand, the Plaintiff seeks to recover rent @ Rs. 210,000/- per month, presumably because the Defendant had offered to pay such rent vide letters dated 01-02-2020 and 15-04-2010 (Exhibit No. 5/13 and 5/15). But that offer by the Defendant was conditioned on an extension in the tenancy. Admittedly, the Plaintiff did not accept that offer. Therefore, arrears of rent are recoverable @ Rs. 200,000/- per month, not Rs. 210,000/- per month. Though clause-2 of the tenancy agreement records a security deposit of Rs. 1,200,000/-, that cannot be taken into account at this stage as the refund thereof is conditioned on vacating the Demised Premises.

2. I advert now to the period for which arrears of rent are recoverable. The prayer in the suit is for recovery from 22-06-2009, whereas the suit was filed on 02-09-2015. As per Article 110 of the Limitation Act, the limitation prescribed for a suit for recovery of arrears of rent is three years from the date "when the arrears become due". Therefore, recovery for the period prior to 01-09-2012 is time-barred. In view of clause-10 of the tenancy agreement, specifying that monthly rent was payable in advance by the tenth of every month, the rent for the month of September 2012 would be included. The Defendant's witness had admitted on cross-examination that no rent whatsoever was ever paid to the Plaintiff. It was also not the case of the Defendant that he paid rent for September 2012 or for any month thereafter to the previous owner. Therefore, there is no adjustment that needs to be considered.

3. In view of the foregoing, the arrears of rent recoverable by the Plaintiff are computed from 01-09-2012 to 29-02-2024, being 138 months @ Rs. 200,000/- per month, a total of Rs. 27,600,000/-. Since the scope of the suit is restricted to recovery of 'arrears' of rent simpliciter i.e. without eviction, the rent that is not due as yet cannot be recovered in this suit.

2024 M L D 1301

[Sindh]

Before Aqeel Ahmed Abbasi, C.J and Abdul Mobeen Lakho, J

Fatimah Quaid---Petitioner

Versus

The Principal, S.M. Law College, Karachi and 3 others---Respondents

C.P. No. D-5623 of 2023, decided on 7th December, 2023.

Pakistan Bar Council Legal Education Rules, 2015---

----R.5(ii)---Constitution of Pakistan, Arts. 9 & 25A---Right to life and education---Enrollment card---Number of seats in law colleges---Petitioner was aggrieved of non-issuance of enrollment card to her who claimed to have complied with all formalities and was eligible to get admission in Five Years Program of LL.B Part-1---Validity---Education is an indispensable and primary fundamental right and is a course of action of accelerating learning or attainment of knowledge, competence, values, moral beliefs and habits and this right flows directly from right to life which is also concomitant to the fundamental rights enshrined in the Constitution---Benefit of education cannot be restricted to one or the other genera or classes---Effect and end result of holding right to education is implicit in right to life which the State cannot deprive---Education is somewhat worthy contrivance which transforms educated people as a valuable source of knowledge for the society---High Court directed the law college authorities to issue enrollment card to petitioner---Constitutional petition was allowed, in circumstances.

Pakistan Bar Council v. Federal Government 2019 SCMR 389 rel.

Khurram Lakhani for Petitioner.

Muhammad Fareed Dayo for Respondent No. 1.

Yousuf Moulvi and Ms. Rafia Murtaza for Respondents Nos. 2 and 3.

Dateof hearing: 7th December, 2023.

Order

ABDUL MOBEEN LAKHO, J:---Through instant petition, the petitioner has expressed her grievance against the act of respondents with the following prayers:-

a) To direct the Respondent No. 1 to resolve the matter of issuance of enrolment cards to petitioners with consultation of Respondents Nos. 2 to 4.

b) To direct the Respondent No. 2 not to hold the annual examination of BA LLB Part 1 of 100 students without considering the merits of petitioners and other 44 students of SM Law College.

c) To direct the Respondents Nos. 2 and 3 to act as per the list uploaded on 05.05.2023 on website of the Karachi University.

d) To direct the Respondent No. 1 not to take any coercive action and disciplinary action against the petitioners for filing this petition, which have been filed in order to save the precious academic year of the petitioners.

e) To Pass Order to the Respondent No. 2, to immediately issue the Enrolment Cards to the petitioners as they are eligible for appearing in annual examination.

1. Brief facts of the case are that the Petitioner on the basis of clearance of LAT was eligible to apply for getting admission in B.A. LL.B (Five year program) in S.M. Law College, Karachi, therefore, the petitioner and all other eligible students had applied for the admission in B.A. LL.B and after fulfilling all requisite formalities including depositing of admission fee and Enrolment Fee through Pay Orders in favour of Respondent No.1, but to their utter surprise, one merit list of hundred students were pasted on the Notice Board of the College, whereas, names of Petitioner and remaining Students, were not published on the merit list, however, they immediately approached the Principal of S.M. Law College regarding their names, not listed in the merit list. In response, the Respondent No.1 informed that sorting out process was underway and remaining final list of students would be available within two days' time. After waiting for two or three days, a phone call was received to the Petitioner and Students regarding their names to be available on the merit list of the College and their admissions were confirmed and after issuance of College Cards the petitioner and other students were allowed to attend the classes and to mark their attendance and they also witnessed that on 04.10.2023 enrolment cards were issued to the certain students, whereas, on the other hand, they kept waiting, but neither their names were called nor they were issued their enrolment cards. The petitioner alongwith other 44 students have been in mental agony, whether they would be allowed by the Respondent No.2 (Karachi University) to appear in the upcoming annual examination of B.A. LL.B Part 1. The petitioner and other students have been continuously requesting the Respondent No.1, but till now needful has not been done. The University of Karachi (Respondent No.2) has also uploaded a list of Government College, at Page No.31 at Serial No. 2 that the S.M. Law College has been allowed to conduct the B.A. LL.B Program of 150 students, but on the other hand, the Respondent No.1 is on constant denial and playing with the future of the Petitioner and Students.

2. Learned counsel for the petitioner argued that Petitioner and other students of B.A. LL.B Part-1 are not being allowed to submit enrolment form to appear in the forthcoming examination despite having payment of the requisite fee. Learned counsel for the petitioner argued that Respondents Nos.2 and 3 (Karachi University) is denying such opportunity to the students, who have already paid their fee and attended classes, whereas, instance of the petitioner has been duly supported by the Principal S.M. (Government) Law College, Karachi as well as Pakistan Bar Council. Learned counsel for the petitioner has argued that the act of respondents Nos.2 and 3 (Karachi University) is against the norms of justice and equity as well as tantamount to ignoring the right of education. Learned counsel for the petitioner also pointed out that the Principal of S.M. (Government) Law College has also written letters from time to time to Karachi University as well as Pakistan Bar Council for increasing of 50 more seats for admission in L.L.B. Five Year Programme but all in vain.

3. Mr. Muhammad Fareed Dayo, learned counsel/Principal S.M. Law College, Karachi argued that the in view of the judgment of Hon'ble Supreme Court of Pakistan in the case of Pakistan Bar Council v. Federal Government (2019 SCMR 389) in para 9 it has been observed that the Rules have an overriding effect, therefore, law degree awarding Institutions must comply with the guidelines and Rules framed by the Bar Councils from time to time. It has been further observed that once Pakistan Bar Council granted 50 additional seats in B.A.LL.B. Program then University of Karachi could not raise any objection and Pakistan Bar Council has rightly granted 50 additional seats of B.A. LL.B. Program. In support of his contention, he referred to a letter dated 12.08.2022 issued by Pakistan Bar Council addressed to Acting Principal, Sindh Muslim (Government) Law College, Karachi conveying the following decision:-

"Therefore, the Committee after deliberation recommended that the Pakistan Bar Council may consider the possibility of enhancing 50 more seats for LL.B 5 years programme for the S.M. (Govt.) Law College, Karachi while relaxing the Rule 5(ii) of the "PBC Legal Education Rules, 2015", since it is renowned and old Law College of the Sindh and building and infrastructure is also available there and many Lawyers and Judges have obtained their law degrees from the said Law College, so it deserves to be granted 50 additional seats."

1. Mr. Yousuf Moulvi, learned counsel for Respondents Nos.2 and 3 (Karachi University) argued that they had already intimated Rules/Policy for the increase of Seats several times for the said program to the College, that as per decision of the Hon'ble Supreme Court of Pakistan every College and University is bound to give admission to only 100 students in the First Year of Five years B.A. (Law) program, therefore, College need to send a reviewed order from the Honorable Supreme Court of any extra seat, therefore, the University will not go against the earlier Supreme Court's order. He further argued that S.M. Law College program for LL.B is still pending for regularization as the College still need to comply with the condition to improve and appoint permanent faculty members in six months, but the college did not appoint any regular faculty, and not yet send any compliance till date, therefore, final approval for the increase of seats of the B.A. LL.B program is subject to the reviewed order of Supreme Court and outcome of the inspection for the said purpose. He also referred to the Rule 5(ii) of Pakistan Bar Council Legal Education Rules, 2015, which reads as under:-

"5(ii) The Total number of students admitted in 1st year LL.B. in any case shall not accede 100.

2024 M L D 1309

[Sindh]

Before Amjad Ali Sahito, J

Asif Ahmed baloch---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 879 of 2023, decided on 28th September, 2023.

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

----S. 498---Penal Code (XLV of 1860), Ss. 361, 363 & 365---Kidnapping any person from Pakistan or from lawful guardianship, kidnapping---Pre-arrest bail, confirmation of---Accused was charged for kidnapping his daughters---First Information Report was lodged under SS.363/365, P.P.C. against the father of the baby girls for the kidnapping of her daughters---Section 361, P.P.C. provided protection to the lawful guardian---Further, the father was not excluded from his lawful guardianship and there was nothing in the law to prevent the father from keeping the custody of his children---Object of the provision of S.361, P.P.C. was to protect the rights of parents with regard to custody of the children---Guardianship of the father under Islamic law did not cease when the minor child was in the custody of the mother and similarly, guardianship of the mother was not extinguished when the minor child was with the father---If a father allegedly removed his child from the custody of his/her mother, the father could not be tried or convicted on the charge of kidnapping---Further, S. 361, P.P.C provided that no FIR would be registered against the lawful guardian or father---Both the babies appeared before the Trial Court and swore their affidavit which showed that the alleged abductees had not supported the version of the complainant/victim which required further investigation---At the most it was a dispute between mother and father over custody of minor babies---Pre-arrest bail application was confirmed, in circumstances.

Muhammad Ahmad v. The State 2005 YLR 661; Muhammad Ashraf v. SHO and others 2001 PCr.LJ 31 and Mohammad Hassan and another v. The State 2019 PCr.LJ Note 10 ref.

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

----Ss. 497 & 498---Bail order---Observations of Court---Scope---Observations made in a bail order are tentative in nature and should not influence the Trial Court while deciding the case of the applicant/accused on merits.

Applicant is present on ad-interim pre-arrest bail.

Muhammad Daud Narejo, Muhammad Yousuf Narejo and Nadir Khan Burdi for the Applicant.

Abrar Ali Khichi, Addl. P.G.

PI Naeem Awan.

Order

AMJAD ALI SAHITO, J.---Through this bail application, the applicant above named seeks pre-arrest bail in Crime No.62/2020 under sections 363, 365 P.P.C. at PS Frere, after his bail plea has been declined by the learned Additional Sessions Judge-II, Karachi South vide order dated 15.04.2023.

1. The details and particulars of the FIR are already available in the bail application and FIR, the same could be gathered from the copy of the FIR attached with such application, hence, needs not to reproduce the same hereunder.

2. Per learned counsel, the applicant is innocent and has falsely been implicated in this case due to enmity; that in fact in pursuance of the direction of this Court, the FIR was lodged by the State against the present applicant; that in fact, the father is a real guardian of the daughters as such FIR cannot be registered against the real guardian/father. In support of this contention, he has relied on Section 361 P.P.C. He further submits that both the babies appeared before the learned Addl. Sessions Judge and sworn their affidavit wherein they have clearly stated that neither they have enticed away nor abducted by anyone but they were residing with their father happily; that the interim Challan has been submitted before the concerned Magistrate. In support of his contentions, learned counsel has relied upon the following cases:

(i) Muhammad Ahmad v. The State 2005 YLR 661

(ii) Muhammad Ashraf v. SHO and others 2001 PCr.LJ 31

(iii) Mohammad Hassan and another v. The State 2019 PCr.LJ Note 10

1. On the other hand, it appears from the record that on 16.08.2023 notice was issued to ex-wife Dr. Mehreen Balooch, being an aggrieved person; however, on 20.09.2023 Dr. Mehreen Baloch appeared in Court and requested for time to engage her counsel, on her request matter was adjourned for today. But today she is called absent without any intimation. Whereas, learned Addl. P.G. has vehemently opposed for confirmation of bail an the ground that FIR was registered on the directions of this Court.

2. Heard arguments and perused the material.

3. The case of the prosecution is that on the direction of this Court, the instant FIR was lodged by one PI Wilayat Hussain posted at PS Frere on the ground that Dr. Mahreen Baloch contracted marriage with one Asif Baloch/present applicant and out of such wedlock, two daughters namely Aina Asif and Aiman Asif were born; unfortunately, differences arose between the parties as such, daughters remained with the father/present applicant. After registration of the FIR, the applicant/accused surrendered before the learned Sessions Judge, South, Karachi wherein he filed a pre-arrest bail application and the same was transferred to the Court of IInd Additional District and Sessions Judge, Karachi; however, at the time of filing the application, both the babies/alleged abductees namely Aina Asif and Aiman Asif has sworn their affidavits, which are available at Pages-77 and 81 of the file in which they have clearly stated that no one has abducted them nor enticed away but they were passing their life happily with their father.

4. The instant FIR was lodged under Sections 363/365 P.P.C. against the father of the baby girls for the kidnapping of her daughters, whereas Section 361 P.P.C. provides protection to the lawful guardian. Further, the father is not excluded from his lawful guardianship and there is nothing in the law to prevent the father from keeping the custody of their children. The object of the provision of Section 361 P.P.C. is to protect the rights of parents with regard to custody of the children. Guardianship of the father under Islamic law does not cease when the minor child is in the custody of the mother and similarly, guardianship of the mother is not extinguished when the minor child is with the father. If a father allegedly removes his child from the custody of his/her mother, the father cannot be tried or convicted on the charge of kidnapping. Further, Section 361 provides that no FIR shall be registered against the lawful guardian or father. It is appropriate to reproduce the Section 361 P.P.C. which reads as under:

361. Kidnapping from lawful guardianship: Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, said to kidnap such minor or person from lawful guardianship.

Explanation: The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.

2024 M L D 1317

[Sindh]

Before Amjad Ali Sahito, J

Agha Siraj Ahmed Pathan and another---Applicants

Versus

The State---Respondent

Criminal Bail Applications Nos. 1698 and 1699 of 2022, decided on 12th September, 2023.

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

----S. 498---Penal Code (XLV of 1860), Ss. 420, 468, 471 & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Cheating and dishonestly inducing delivery of property, forgery, using as genuine a forged document, common intention, criminal misconduct---Pre-arrest bail, confirmation of---Further inquiry---Prosecution case was that 28-acres land was leased out for thirty years to seven persons, however after expiry of said period, the land was fraudulently transferred in the name of one of the said persons vide fake documents---Entire case of the prosecution depended upon the documentary evidence which was available with the prosecution---Things did not end here, the statement under S.161, Cr.P.C. of a witness was available wherein he disclosed that he appeared before the Investigating Officer and admitted the conversion of 30 years of lease land and installment was also paid---Application was filed by the main accused to the Member Land Utilization Board of Revenue Department wherein the minutes of the meeting of the Chief Minister Sindh held that "examine and put up" after scrutiny; the land was given to said accused as such he had also paid some installment but in the summary note, it was written that during the process the Supreme Court of Pakistan had passed an order in a Suo Motu Case banning all kinds of mutations/allotment/transfer or conversion of any State land or any transaction or entry in the record of rights in that regard in revenue record or till the entire revenue record was reconstructed---Allegedly, due to the ban, no entry was kept on record of right but the same was forged---Record reflected that DDO Revenue passed the order on 09.07.2011 and in compliance thereof, the entry was made on the same day 09.07.2011, much prior to the ban---Case had been challaned and the applicants/accused were no more required for further investigation---No purpose would be served to send accused to jail---Applicants/accused had made out case for the grant of bail in terms of subsection 2 of S.497, Cr.P.C---Bail application was allowed and interim pre-arrest bail granted to the petitioner earlier was confirmed, in circumstances.

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

----Ss.497 & 498---Bail---Tentative assessment---Scope---Observations made in bail orders are tentative in nature and should not influence the trial Court while deciding the case of the accused petitioner on merits.

Muhammad Ahmed Pirzada, for both the Applicants.

Faiz H. Shah, Prosecutor General Sindh amd Talib Ali Memon, A.P.G. along with Shahzad Fazal Abbasi, Director ACE and Abdul Qadir Soomro, Deputy Director/I.O. ACE Karachi for the State.

Date of hearing: 12th September, 2023.

Order

Amjad Ali Sahito, J.---Through these Bail Applications, applicants/accused seek pre-arrest bail in Crime No.03/2022 for the offence under Sections 409/420/468/471/34 P.P.C read with Section 5(2) Act-II, 1947 registered at ACE, Karachi, after their bail plea has been declined by the learned Special Judge, Anti-Corruption (Provincial), Karachi vide order dated 29.08.2023.

1. The details and particulars of the FIR are already available in the bail application and FIR, the same could be gathered from the copy of the FIR attached with such application, hence, needs not to reproduce the same hereunder.

2. Per learned counsel for the applicants, the applicants are innocent and have falsely been implicated in this case; that no specific role has been assigned against the applicants; that the applicants were posted as Mukhtiarkar and Assistant Commissioner in the Board of Revenue and serving in the said department for last many years with untarnished career; that there is no incriminating evidence against the applicants; that the entry in the record of right was recorded in compliance of the directions issued by higher authorities; that entire case of the prosecution is based upon documentary evidence whose authenticity and validity would be determined at the time of trial; that the applicants are no more required for further investigation. He lastly prays for confirmation of bail.

3. On the other hand, learned Prosecutor General, Sindh [hereinafter referred to as "P.G."] submits that the applicants are very much involved in this case as PW Shoukat Jokhio has denied from his signature while recording his statement under section 164 Cr.P.C. before the learned Magistrate. He further submits that entry cannot be cancelled as an interim order has been operating in this case. Per learned P.G., sufficient material is available on record to connect the applicants with the commission of an alleged offence. Lastly, he opposes for confirmation of bail.

4. Heard arguments and perused the record.

5. The case of the prosecution is that 28-0 acres of land was leased out on temporary basis to M. Aslam Malik, Muhammad Sarwar Malik, Mrs. Hasan Ara Waseem, Mr. Kashif Jamal, Muhammad Eijaz Alam, Abdul Wahab and co-accused Muhammad Jameel for poultry farming purpose for a period of 30 years; however, after expiry of said period, the said land was fraudulently transferred in the name of Muhammad Jameel vide fake Entry No.23 dated 09.07.2011 village Form-VII-B, of Deh. Konkar, wherein the measurement of the land was shown to be 176 acres in place of 28-0 acres. Admittedly, FIR was lodged with a delay of about 11 years and no plausible explanation has been furnished by the prosecution. Further, the entry was kept in the record of right when the applicants have received the order from the office of the District Officer (Revenue) City District Government, Karachi letter dated 09.07.2011 wherein the then District Officer (Revenue) Mr. Shoukat Jokhio directed the Mukhtiarkar concerned for keeping the entry in the record of right. From the face of the order, it appears that the application was filed by Mrs Farzana wife of Muhammad Jamil and 18 others requesting for transfer of their leasehold rights measuring 176 acres, same was allowed and 176-00 acres of Na-class No.152 Deh. Konkar Gadap Town was transferred in favour of M/s. Memon Dairy Cooperative Society through Chairman Muhammad Jameel.

6. After receiving the letter/order from the office of the District Officer (Revenue) the entry was kept in the record of right viz. Form-VII dated 09.07.2011. Further, learned counsel for the applicants argued that neither the applicants have cheatd with the department nor committed any fraud but when the letter was received from the office, they acted upon it. In support of this contention, he has produced a letter/order dated 09.07.2011 so also photocopy of an outward register which is available on pages 99 to 103. He further submits that in view of Section 52 of the Land Revenue Act if any entry kept in a record of rights shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. Learned counsel for the applicants submits that in view of the above section, the entry was kept in the record of right. On the other hand, learned PG submits that the statement of D.O Revenue was recorded and he has denied it from his signature. When it was confronted with the learned P.G. that the claim of the applicants is/was that based on the letter they have kept the entry in the record of rights. Whether the same/signature/letter was sent to the forensic expert about its genuineness he replied that DDO Shoukat Jokhio denied his signature and now it will be decided by the trial court whether the signature is genuine or forged. This sole ground is sufficient to bring the case of the applicants for further enquiry.

7. Further, the alleged Entry No.23 has not been cancelled by the authorities, the same is still available in the record of rights. The civil litigation is also pending before the competent court of law and the stay is operating in the favour of the main accused/beneficiary Muhammad Jameel. He has also filed a suit for declaration, injunction and damages wherein the claim of the accused was that by virtue of title documents, the plaintiff has been running a dairy farm on the suit premises for last many years and the official respondents have demolished the construction and subsequently FIR was lodged against him. Meanwhile, notices were issued and the defendant was directed to maintain status-quo. Further, the main accused Muhammad Jameel, who is a beneficiary of the instant case/alleged Entry No.23, has been granted bail and the allegation against the applicants is that they have committed cheating by making the said entry in the record of rights, whereas, learned counsel for the applicants categorically states that the applicants are not beneficiary of that entry.

2024 M L D 1337

[Sindh]

Before Muhammad Shafi Siddiqui and Jawad Akbar Sarwana, JJ

Jameel Ahmed and others---Appellants

Versus

Hayat Muhammad Sher Pao and others---Respondents

High Court Appeals Nos. 93 and 94 of 2022, decided on 13th November, 2023.

Civil Procedure Code (V of 1908)---

----O.I, R.10---Necessary and proper party---Scope---Appellant filed an application under O. I, R. 10 of the Civil Procedure Code, 1908, in a suit instituted by the private respondents against the official respondents---Said application was dismissed and meanwhile the suit was decreed---Appellants pleaded that the subject land was acquired by them on requisite payments and they were necessary and proper party---Validity---Record reflected that the private respondents, who had filed instant suit had also filed a constitutional petition against some of the respondents including appellant No.1 and his predecessor, which was coming up and/or being fixed with present appeals---In said petition they (private respondents / plaintiffs of suit) had sought a declaration that the exchange of land was illegal and unlawful---While they impleaded the appellant No.1 and his predecessors in the petition, they (private respondents) mischievously had not arrayed appellants and/or appellant No.1 at least and/or his predecessor in interest in the civil suit and in this manner had attempted to obtain a judgment and decree in collusion with the official respondents and in fact succeeded---On acquiring knowledge before decree could be passed, the appellants moved application under O. I, R. 10, C.P.C. on which the impugned order was passed whereby summarily not only was it dismissed but the suit was also decreed on the same date despite the fact that two written statements of official respondents, out of four, were yet to be served---Incidentally one of the written statements had opposed the claim of the private respondents/plaintiff of the suit O. 1, R. 10(2), C.P.C. demands that name of the person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added, but in the present case, such aspect was not given due consideration---Party has to only present a reasonable case for the indulgence of the Court, which could disclose interest in the property, which could be sufficient for the Court to add him/ them as party, which was done by the appellants in the present case----High Court set aside the impugned orders and the judgments and remanded the matter to Single Judge---Resultantly, the application under O. I, R. 10, C.P.C. was deemed to be pending before the Single Judge who shall then pass orders on it in accordance with law after providing opportunity of hearing to all the parties after notice---Appeals were allowed accordingly.

Salahuddin Ahmed for Appellants.

Umair Bachani for Respondents Nos. 1 and 3.

Abdul Jaleel Zubedi, Assistant Advocate General for Respondent No. 4 to 7.

Date of hearing: 7th November, 2023.

Judgment

Muhammad Shafi Siddiqui, J.--- In a suit filed by respondents Nos.1 to 3 against official respondents only i.e. respondents Nos.4 to 7, an application under Order I Rule 10 C.P.C. was filed by the appellants. The said application was dismissed summarily after recording the details of the contentions of the counsel, by the learned Single Judge via order dated 22.02.2022 impugned in High Court Appeal No.94 of 2022; whereas on the same day the suit of respondents No.1 to 3 (plaintiffs of suit) was decreed against above official respondents only via judgment impugned in High Court Appeal No.93 of 2022. Since both the impugned order and judgment are interconnected with each other, the two appeals have been heard together and are being disposed of with this common judgment.

1. Mr. Salahuddin Ahmed, learned counsel for appellants, submitted that the appellants have presented a case to be impleaded as being necessary and property party in the suit. The appellants have given history of litigation in respect of the subject property that originates in 1994 when their land claimed to have been exchanged with subject land vide allotment/exchange of land order dated 27.06.1994, followed by possession and order of the Deputy Commissioner of 22.12.1994 and entries were accordingly inserted in the revenue record. Counsel has also relied upon pending litigation that includes C.P. No.D-3769 of 2021, tagged with these appeals, wherein land in question was shown as subject matter between the parties including appellants/interveners, now also disputing in these appeals.

2. Mr. Bachani, learned counsel appearing for private respondents, on the other hand, has refuted the claim on the count that the entries in the original grant have already been nullified to the effect that no subsequent interest could be drawn/passed on and hence the application under Order I Rule 10 C.P.C. was rightly dismissed. He further added that since in the suit the plaintiffs and the official respondents/defendants in the suit were not in dispute, it was decreed having no other alternate recourse. Mr. Bachani has also attempted the trail and history of subject land.

3. Learned Assistant Advocate General has opposed the claim of the private respondents over the subject land and has adopted the arguments of learned counsel for appellants to the extent of impleading them as necessary and proper party.

4. We have heard the learned counsel appearing for the parties as well as learned Assistant Advocate General and perused material available on record.

5. The subject land has a history and the pedigree of title has to be traced. As record of this file reveals an order of exchange of land i.e. land of Muhammad Qasim, attorney of A. Aziz and Allah Bux in Survey Nos.266 to 270, 275 to 279, 104, 258, 283 in Deh Narather, District Karachi West, was exchanged with land measuring 134-24 Acres from Sector Nos.6-B, 19-B, 30, 6-C and 32, Corridor Scheme No.33, Karachi Malir. (Such exchange has to be seen within the frame of requisite law which could have enabled such exchange but that is not a precise question here). It is urged that possession letter and allotment of exchange, disclosing the exact area which came in their pool as determined by the Deputy Commissioner, was issued with consequential entries in revenue record. It is appellants' case that the subject land was acquired by the appellants after it being regularized and challans of requisite payments were paid in installments as permitted. While this could constitute a ground for presenting a case of a necessary and proper party, but this alone will not succeed in acquiring valid title unless the barriers of law regulating land exchange policy is crossed.

6. The record also reflects that private respondents who have filed instant suit, out of which the impugned order and judgment have arisen, have also filed a petition against some of the respondents including appellant No.1 and predecessor of appellant No.1 i.e. A. Aziz and Allah Bux, both sons of Ghularm Rasool bearing C.P. No.D-3769 of 2021, which is coming up and/or being fixed with these appeals. In this petition they (private respondents and plaintiffs of suit) have sought a declaration that the exchange of land measuring 134-24 Acres in KDA Scheme No.33 by the Chief Executive of province is illegal and unlawful (exchanged land identified above). While they impleaded the appellants No.1 and his predecessors in the petition, the respondents mischievously have not arrayed appellants and/or appellant No.1 at least and/or his predecessor in interest in the suit and in this manner have attempted to obtain a judgment and decree, in collusion with the official respondents and in fact succeeded. On acquiring knowledge before decree could be passed, the appellants moved application under Order I Rule 10 C.P.C. on which the impugned order was passed whereby summarily not only that it was dismissed but the suit was also decreed on the same date despite the two written statements of the official respondents, out of four, as rest were yet to be served. Incidentally one of the written statements has opposed the claim of the private respondents/plaintiffs of the suit.

7. Even learned Assistant Advocate General has opposed the claim of private respondents i.e. respondents Nos.1 to 3, as made in the suit, and has adopted the arguments of the appellants to the extent that a notice of Order I Rule 10 C.P.C. ought to have been issued and the case of the appellants ought to have been given deeper appreciation rather than dismissing the application summarily followed by a judgment immediately decreeing the suit.

8. It seems that a prima facie case has been presented by the appellants, based on the documents, which though were disputed by the respondents No.1 to 3, but it does not call for a summary dismissal of application under Order I Rule 10 C.P.C. The appellants are not only proper but necessary party as suit involves determination and adjudication of title of suit land wherein appellants' interest at least is apparent. It is also to be noted that learned Assistant Advocate General has opposed the impugned order and judgment but has not preferred any appeal at least to the extent of judgment decreeing the suit as prayed. The case, as presented by the appellants, requires proper appraisal and adjudication before they could be thrown out of a contest whereas on the other hand there was sufficient material already available on record, which do not call for dismissing of application under Order I Rule 10 C.P.C. summarily.

2024 M L D 1344

[Sindh]

Before Omar Sial, J

Muhammad Tahir Jatoi---Applicant

Versus

The State---Respondent

Pre-Arrest Bail Application No. 518 of 2023, decided on 27th October, 2023.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 365-B & 376---Carrying away of a woman by any means with an aim that she may be compelled to marriage or forced or made to illicit intercourse, against her will---Pre-arrest bail, refusal of---Petitioner was charged for kidnapping the daughter of complainant for illicit relations---Record showed that daughter of the complainant had married accused/applicant out of her own free will and, in that connection, had appeared before the Court to record her statement that she had allegedly married the applicant---At that stage, a charge under Ss.3 and 4 of the Sindh Child Marriage Restraint Act, 2013, was also included against the applicant---Abductee was sent to Darul Aman on the instructions of the Court, and it appeared that some days later, she opted to go back home with her parents---Later on, abductee took a somersault on her earlier stance and now alleged that applicant had kidnapped her and that all her appearances in Court and earlier statements were obtained from her under duress---As per record, charge under S.376, P.P.C, had also been added against the applicant---Said Section was the penal provision for the offence of rape, which carried a potential sentence of 10 to 25 years or imprisonment for the remainder period of natural life, thus falling within the non - prohibitory clause of S.497, Cr.P.C---Upon a tentative assessment, the applicant might have a case to answer for offences leading to a life in prison---Moreover, it also seemed that the applicant could tamper with evidence and exert undue influence on the victim---Bail application was dismissed, in circumstances.

Imdad Ali Malik for Applicant.

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

Muhammad Moosa, along with victim Mst. Kaneez Fatima for the Complainant.

Date of hearing: 24th October, 2023.

Order

Omar Sial, J.---Mohammad Ayub Kolachi lodged FIR No. 118 of 2022 under section 365-B P.P.C. at the Bin Qasim police station on 02.04.2022. He reported that his daughter Kaneez Fatima had left for school in a rickshaw driven by Ali Raza but did not return home. Ali Raza was nominated accused.

1. Ali Raza told the police that he had dropped Kaneez Fatima at her school in the morning, but when he returned to pick her up at home time, the school's watchman told him that Fatima had not come to school. He had then informed her father of her absence. The record reflects that at some time after the disappearance of his daughter, her father, the complainant, recorded another statement in which he nominated (i) Mohammad Tahir Jatoi, (ii) Khuda Baksh Jatoi and one Mohammad Sultan as the culprits.

2. It transpired in the police investigation that Kaneez Fatima had married Mohammad Tahir Jatoi (the applicant in these proceedings) out of her own free will and, in that connection, had appeared before the Sukkur Bench of this court to record her statement that she had married Tahir. At that stage, a charge under sections 3 and 4 of the Sindh Child Marriage Restraint Act, 2013, was also included against Mohammad Tahir Jatoi. Kaneez Fatima was sent to Darul Aman on the instructions of this Court, and it appears that some days later, she opted to go back home with her parents. Around 23.05.2022, Kaneez Fatima took a somersault on her earlier stance and now alleged that Mohammad Tahir Jatoi had kidnapped her and that all her appearances in court and earlier statements were obtained from her under duress.

3. Learned counsel for the applicant has argued that the applicant and Kaneez Fatima are husband and wife. In contrast, learned counsel for the complainant says that even if the applicant has married Kaneez Fatima, an offence under the Sindh Child Marriage Restraint Act, 2019 had been committed. He has not denied the earlier appearances and statements made by Kaneez Fatima but defends them on the ground that Kaneez made them at gunpoint.

4. I have given the situation considerable thought. The problem arose when an ossification test was done on the girl, which indicated she was "17 to 18 years of age". On the other hand, her school records show the girl to be 15 years old. I cannot exclude Kaneez Fatima from all liability regarding what has transpired. On a tentative assessment, her consent to elope with the applicant appeared there. However, her consent, if she is a minor, means little. Section 361 P.P.C. provides that whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from legal guardianship.

5. It further appears from the order impugned that a charge under section 376 P.P.C. has also been added against the applicant. Section 376 is the penal provision for the offence of rape. It carries a potential sentence of 10 to 25 years or imprisonment for the remainder period of natural life, thus falling within the non-prohibitory clause of section 497 Cr.P.C. "Rape" has been defined in section 375 P.P.C. as "A man is said to commit rape who has sexual intercourse with a woman under the circumstances falling under any of the five following descriptions: "(v) with or without her consent when she is under sixteen years of age." It is also pertinent to point out that the definition of "rape" as amended through the Criminal Laws (Amendment) Act, 2021 has been enhanced rape is no longer hostage to penetration.

6. I was inclined to give some benefit to the applicant if the question before me was solely a breach of the Sindh Child Marriage Restraint Act; however, this thought changed when it was brought to my notice that the applicant has a minimum of two (as only two have been shown to me) and three (according to the version of the complainant). Upon a tentative assessment, it appears that one nikahnama has been annexed with the bail application showing the marriage solemnised in Sukkur, while the other, which the applicant ostensibly sent to the complainant via WhatsApp, shows the marriage solemnised in Karachi. The learned counsel for the applicant denied that the applicant has the Karachi nikahnama; however, they remained unable to answer why the applicant sent a copy to the complainant through WhatsApp. As is often the case, such offences have shown below-average and stereotypical investigation. The investigating officer does not seem to have looked at the issue from a trafficking or gender lens. The molvi who solemnised the nikah and the witnesses to the ostensible free-will affidavits and nikahnama should have been brought within the ambit of investigation. The genuineness of the nikahnamas floating around should also be investigated. As mentioned above, Kaneez Fatima, too, has contributed to her plight.

7. The provisions of the law referred to above make it clear that the applicant, apart from an offence under the Sindh Child Marriage Restraint Act, 2013, may also have a case to answer pursuant to kidnapping and rape laws, both of which carry potential life sentences and thus fall within the non-prohibitory clause of section 497 Cr.P.C.

8. There has been a marked increase in cases of a similar nature. The modus operandi is the same. Usually, a simple and unexposed girl is seduced through the Internet or telephone; one fine day, she leaves home surreptitiously and elopes with her lover; the family registers an FIR for kidnapping, rape and underage marriage; the couple produces a freewill affidavit and a nikahnama (in most cases executed in Punjab); they then come back to Sindh where they make an appearance before the Sessions Court as well as the High Court where the girl professes her love for her "husband" and states that she is an adult and has married with her own free will. The case against the "husband" is dropped based on such appearances and statements. It would all be fine if the girl was an adult and it was a genuine case of love. Unfortunately, this does not seem to be the case in many situations. The girl, having burnt all her boats, is at the mercy of the "husband"; thus, her vulnerability leads her to either an enslaved person's life or, worse, being trafficked. She cannot go home due to the fear of an honour killing. And given her past conduct, nobody believes that she was kidnapped, raped or trafficked by the "husband". In some cases, a girl with a supportive family returns home (as in the present case) and takes a complete somersault on her earlier conduct. By then, enough doubt has been created in the case, of which doubt the perpetrators take advantage. Counsel who appear in such matters, as well as the police who investigate, completely lose sight of the possibility of the girl being trafficked through such a modus operandi and mechanically deal with the case. In my view, showing leniency where a minor is involved will only encourage traffickers to continue unabated.

2024 M L D 1359

[Sindh]

Before Aftab Ahmed Gorar, J

Behram Jakhro and 7 others---Applicants

Versus

The State---Respondent

Criminal Bail Application No.(S) 1844 and 1849 of 2022, decided on 20th October, 2022.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860) , Ss. 365-B , 364, 344, 147, 148 & 149---Kidnapping, abducting or inducing woman to compel for marriage, rioting armed with deadly weapon ,unlawful assembly---Pre-arrest bail, grant of---Further inquiry---Contradictory allegations by the prosecution---Improvements in statements of the abductee---Effect---First Information Report was lodged against the petitioners (twelve in number) and another accused---Admittedly , the FIR had been lodged with an unexplained delay of twenty four hours and no iota of evidence was available against the petitioners---No medical report of abductee was available---Record showed that, in relation to the alleged abduction , an application under S.491 of the Criminal Procedure Code, 1898, was filed with the delay of ten days---Said application showed one person as the main accused who was different than the person mentioned as main accused in the (present) FIR---Not only was there difference of number of accused persons in both the application and FIR but alleged abductee , in her statement, deposed different number of accused persons also---In said statement of abductee , she deposed contradictory date of occurrence---In the Police report, submitted in proceedings of application under S.491, Cr.P.C , the very occurrence was denied---All said circumstances ,more particularly improvements in statements created doubt in the prosecution story and required further inquiry---Guilt or innocence of the petitioners was yet to be established as it depended on the strength and quality of the evidence that would be produced by the prosecution and the defence before the Trial Court---No complaint of misuse of concession of (ad-interim) bail or tampering the record had been pointed out , and the petitioners were regularly appearing before both the High Court and the Trial Court---Petitioners , admittedly, had not violated any of the well-settled conditions on the basis of which their bail could be cancelled---At bail stage , deeper appreciation of evidence / circumstances of the case was not permitted and only tentative assessment was to be made, however, where accused had satisfied the Court that there were reasonable grounds to believe that he was not guilty of such offence, then the Court must release him on bail---Bail was allowed to the petitioners /accused persons, in circumstances.

Yar Muhammad v. The State and another 2004 YLR 2230 ref.

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

----Ss. 498 & 497---Cancellation of bail---Principles for cancellation/recalling of bail---Bail may be cancelled (i) if the bail is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice; (ii) the accused has misused the concession of bail in any manner; (iii) accused has tried to hamper prosecution evidence by persuading / pressurizing prosecution witnesses; (iv) there is likelihood of absconsion of the accused beyond the jurisdiction of court; (v) the accused has attempted to interfere with the smooth course of investigation; (vi) accused misused his liberty while indulging into similar offence; (vii) some fresh facts and material has been collected during the course of investigation which tends to establish guilt of the accused.

Shahid Arshad v. Muhammad Naqi Butt 1976 SCMR 360 and Samiullah v. Laiq Zada 2020 SCMR 1115 ref.

Zuhaib Zulfiqar Sarki along with applicants in Crl. B.A. No. 1844 of 2022.

Mumtaz Ali Soomro along with applicant (in Crl. B.A. No. 1849 of 2022).

Aijaz Ahmed Memon and Liaquat Ali Jamari for the Complainant.

Ms. Rahat Ehsan, Additional Prosecutor General Sindh.

Date of hearing: 20th October, 2022.

Order

Aftab Ahmed Gorar, J.---The applicants booked in FIR No. 203/2022 under sections 365-B/364/344/147/148/149 P.P.C. registered with Police Station Thatta, were admitted to pre-arrest bail vide order dated 19.09.2022 in Cr1. Bail Application No. 1844 of 2022 and 20.09.2022 in Crl. Bail Application No. 1849 of 2022 and today both the matters are fixed for confirmation of said pre-arrest bail or otherwise.

1. Learned counsel for the applicants while reiterating the grounds mentioned in the memo of bail application submitted that abductee in her statement recorded on 15.08.2022 stated that she was abducted two months ago by four accused person while in FIR the date of incident shown as 01.08.2022. He further submitted that police report filed in respect of application under section 491 Cr.P.C. shows that no such incident has been taken place and after ten days the instant FIR has been lodged at same Police Station. He argued that the case of applicants creates doubt in the prosecution story and call for further inquiry. He argued that after obtaining the pre-arrest bail, the applicants are regularly attending the trial court as well as this court and not misused the concession of pre-arrest bail. Learned counsel for applicants further submitted that the applicants are innocent and have falsely been implicated in this case. Learned counsel for the applicants submitted that FIR has been lodged with the delay of twenty four days which has not been explained and no specific role of each of the applicants has been assigned in the FIR. They further submitted that no incriminating article has been recovered from the applicants. Lastly learned counsel prayed that the pre-arrest bail granted to the applicants may be confirmed.

2. Learned counsel for the complainant as well as learned Additional Prosecutor General Sindh could not controvert the above submissions of learned counsel for the applicants rather both opposed the confirmation of bail.

3. I have heard the learned counsel for the parties and perused the record.

4. It is an admitted fact that the FIR has been lodged with the unexplained delay of twenty four days and no iota of evidence is available against the applicants; no medical report of abductee is available. Record shows that Application under section 491 Cr.P.C. was filed with the delay of ten days showing the main accused as Behram Jakhro whereas in the FIR Mohib Jakhro has been shown as main accused more over in the said application seven persons have been shown as accused while in FIR there are fifteen persons are nominated. The abductee in her statement recorded on 15.08.2022 has stated that she was abducted about two months ago by four accused person whereas in FIR the date of incident has been shown as 01.08.2022. Record further shows that concerned police has submitted report in response to application 491 Cr.P.C. stating that no such incident has been taken place. All these circumstances more particularly improvements in statements create doubt in the prosecution story and require further inquiry. The guilt or innocence of the applicants is yet to be established as it would depend on the strength and quality of the evidence that will be produced by the prosecution and the defense before the trial Court. This is a pre-arrest bail application. No complaint of misuse of concession of bail or tampering the record has been pointed out. The applicants are regularly appearing in the case before this court as well as trial court.

5. There is no denial to this fact that the superior courts of the country since long have issued guidelines wherein the details of the considerations for the grant of bail and cancellation whereof are highlighted. The Hon'ble Supreme Court while handing down a judgment reported as Shahid Arshad v. Muhammad Naqi Butt (1976 SCMR 360) although found that the bail granting order passed by the High Court is not sustainable in the eyes of law but yet restrained to interfere in such order on the ground that there was nothing to show that the accused had misused concession of bail. In a recent judgment reported as Samiullah v. Laiq Zada (2020 SCMR 1115), the Hon'ble Supreme Court has enunciated the following principles for cancellation/recalling of bail:-

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

ii) That the accused has misused the concession of bail in any manner.

iii) That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses.

iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of court.

v) That the accused has attempted to interfere with the smooth course of investigation.

vi) That accused misused his liberty while indulging into similar offence.

2024 M L D 1368

[Sindh]

Before Mohammad Karim Khan Agha, J

Haroon---Appellant

Versus

The State---Respondent

Criminal Appeal No. 639 of 2019, decided on 28th February, 2024.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Unnatural conduct of eye-witness---Accused were charged for committing murder of the brother of the complainant by strangulation---Record showed that the daughter of the deceased and wife of the accused were eye-witnesses---Evidence showed that there was a dispute between husband and wife concerning the marriage of the witness to Mr. "H" as opposed to another suitor and that there was ill will between them all on account of her marriage to Mr. "H"---Furthermore, all witnesses were related to the deceased as well as the accused which immediately put the on court caution as to the evidence of the witnesses including that of sole eye-witness---Eye-witness stated in her evidence that she woke up in the night and heard her mother and the accused plotting to murder her father on account of the disputes between her mother and father over her marriage to Mr. "H"---No doubt said witness was a natural witness however, her statement was found to be somewhat doubtful/coincidental that she would wake up in the middle of the night, go out of her room and hear her mother and Mr. "H" loudly speaking about murdering her father---Even more damaging to her evidence was the fact that despite returning to her room where her father was sleeping on the floor she took no steps to wake him up and warn him of the plan of his wife and Mr. "H" to murder him---Even more damaging to her evidence was that she was wide awake when her mother and Mr. "H" entered her room and started murdering her father with a piece of cloth around the neck in the case of Mr. "H" and by putting a pillow over deceased's mouth in respect of her mother yet she did nothing to intervene and rather allowed her mother and Mr. "H" to murder her father---Such conduct did not appeal to logic, commonsense and reason and was contrary to natural human conduct and was simply not believable---Appeal against conviction was allowed, in circumstances.

Niaz-ud-Din and another v. The State and another 2011 SCMR 725; Qasim Shahzad and another v. The State and others 2023 SCMR 117; Ijaz Ahmad v. The State 2009 SCMR 99; Muhammad Ehsan v. The State 2006 SCMR 1857; Rafaqat Ali v. Chief Secretary, Government of Punjab Lahore and others 2024 SCMR 34 and Sohail Akhtar and another v. The State and another 2024 SCMR 67 ref.

Muhammed Asif v. The State 2017 SCMR 486 rel.

(b) Criminal trial---

----Sole eye-witness, evidence of---Conviction---Accused could be convicted based on the evidence of sole eye-witness provided that, it was found to be trust worthy, reliable and confidence inspiring.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Medical evidence---Accused were charged for committing murder of the brother of the complainant by strangulation---Admittedly the medical evidence and post mortem report fully supported the eye-witness/prosecution evidence that the deceased died from strangulation---However the medical evidence could not indicate who actually caused the injuries---Chemical report found a chemical in the blood of the deceased however that chemical could have been administered by the deceased himself who had recently been staying with the complainant and he was unwell---No evidence was present to show that said chemical which was found in the blood of the deceased caused his death or was administered by anyone but himself and in fact as per the medical evidence he died in effect on account of strangulation as opposed to poisoning---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---No recovery made---Accused were charged for committing murder of the brother of the complainant by strangulation---Record showed that no actual recovery was made from the accused at the time of his arrest---Both the piece of cloth and pillow were found in the bedroom where the deceased was murdered which was a natural place for them to be---Appeal against conviction was allowed in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Arrest of the accused made from the house of deceased---Effect---Accused were charged for committing murder of the brother of the complainant by strangulation---If the accused was arrested from the house in the morning, it was not that unusual as he had every reason to go and visit his wife in the house where she was living as they were not living together---Appeal against conviction was allowed, in circumstances.

Ghulam Abas for Appellant.

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

Date of hearing: 21st February, 2024.

Judgment

Mohammad Karim Khan Agha, J.---Appellant Haroon son of Muhammad Nazeer has preferred this appeal against the impugned judgment dated 26.08.2019 passed by the Model Criminal Trial Court/Ist Additional District and Sessions Judge Malir, Karachi in Sessions Case No.06/2017 arising out of FIR. No.203/2016 under section 302/34 P.P.C. registered at P.S. Ibrahim Hyderi, Karachi whereby the appellant was convicted and sentenced to Life Imprisonment along with fine of Rs.10,00,000/- (Ten Lac Only) as a compensation which would be paid to the legal heirs of deceased as per Shariah and in case of default of payment, he shall suffer S.I. for six months more. The benefit of section 382-B Cr.P.C. was also extended to the appellant.

1. The brief facts as per FIR of the complainant Muhammad Shamim son of Muhammad Badruddin, resident of House No.H 75, Sarfaraz Colony, Noor Manzil Landhi Colony, Karachi are that he is residing at the above given address along with his family members and doing private job. His brother Tanveer was residing along with his family at Ilyas Goth and there was dispute on the marriage of his daughter namely Kanwal aged about 18 years. His brother was inclined to give the hand of his daughter to the son of the brother of his wife namely Azeem, while my Bhabhi Mst. Anwar Jahan was not happy, as she wanted to give this engagement to a Bangali Haroon who is resident of Ilyas Goth upon which time to time quarrel has broken out. Today I was present in my house when one person namely Qadeer who is neighbor of my brother informed me today that my brother Tanveer died. Upon which I along with my relatives immediately reached there and saw that the dead body of my brother was lying with strangulation mark on his neck so my neighbor telephoned the police, who also came' at the spot. In my presence inquiry was conducted and came to know that intoxicant had been given to my brother at night time, due to enmity my Bhabhi Anwar Jahan and Haroon Bangali murdered my brother. Whose dead body was taken to hospital where I recorded my statement. My complaint is against the accused persons namely Haroon Bangali son of Nazeer Ahmed and Mst. Anwar Jahan wife of deceased Tanveer on 07.11.2016 at the midnight given intoxicant to my brother and thereafter they murdered my brother by strangulation.

2. After completion of usual investigation charge was framed against the accused persons to which they plead not guilty and claimed to be tried.

3. The prosecution in order to prove its case examined 07 witnesses and exhibited various documents and other items. The appellant in his statement under Section 342 Cr.P.C denied the allegations against him. He however, did not give evidence on oath or call any DW in support of his defence case.

4. After hearing the learned counsel for the parties and assessment of evidence available on record, learned trial Court vide judgment dated 26.08.2019 convicted and sentenced the appellant as stated above, hence this appeal has been filed against his conviction. It is noted that co-accused Mst Anwar Jan died during the course of the trial and the case against her abated.

5. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the impugned judgment, therefore, the same are not reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellant has contended that the appellant is innocent and has been falsely implicated in this case on account of enmity; that the eye-witness was not named in the FIR and as such she is a planted witness whose evidence needs to be discarded as it is completely unreliable; that there were material contradictions in the evidence of the witnesses and as such for any or all of the above reasons the appellant should be acquitted by extending him the benefit of the doubt.

7. Learned Additional Prosecutor General Sindh who was also representing the complainant fully supported the impugned judgment. In particular, he contended that the sole eye-witness's evidence was trust worthy, reliable and confidence inspiring and could be safely relied upon; that the medical evidence supported the ocular evidence and that the item used in the murder by strangulation (dopeta) had been recovered at the scene of the crime where the appellant had also been arrested on the spot and as such the prosccution had proved its case beyond a reasonable doubt and the appeal be dismissed. In support of his contentions, he placed reliance on the cases of Niaz-ud-Din and another v. The State and another (2011 SCMR 725), Qasim Shahzad and another v. The State and others (2023 SCMR 117), Ijaz Ahmad v. The State (2009 SCMR 99), Muhammad Ehsan v. The State (2006 SCMR 1857), Rafaqat Ali v. Chief Secretary, Government of Punjab Lahore and others (2024 SCMR 34) and Sohail Akhtar and another v. The State and another (2024 SCMR 67).

8. I have heard the learned counsel for the appellant as well as learned APG and have also perused the material available on record and the case law cited at the bar.

9. Based on my reassessment of the evidence of the PWs, especially the medical evidence, I find that the prosecution has proved beyond a reasonable doubt that Muhammed Tanveer (the deceased) was murdered by strangulation on 07.11.2016 at midnight inside house No.B-712, Illyas Goth, Ibraham Hyderi Karachi.

10. The only question left before me therefore is who murdered the deceased by strangulation at the said time, date and location?

11. After my reassessment of the evidence on record, I find that the prosecution has NOT proved beyond a reasonable doubt the charge against the appellant for which he MIS convicted for the following reasons;

(a) I find that the entire prosecution case hinges on whether I believe the evidence of the sole eye-witness Ms Ulfat Jahan who stated in her evidence as under;

"In between 7/8 November 2016, I was sleeping in my house situated at Ilyas Goth. At about 03:00/3:30 AM, I wokeup and found my father was sleeping on floor, whereas my mother Anwar Jahan was not present in the room. I went outside and found main door of the house was opened and my mother was talking with Haroon. My mother was complaining about the behavior of my father and Haroon told her that they will strangle my father. Then after I returned back to my room, meanwhile my mother along with Haroon came inside the room and with red and black colour dopata Haroon strangled neck of my father andmy mother put the pillow on my father's face due to this my father expired at spot. Accused Haroon and my mother told me that do not disclose about this incident to any person. Accused Haroon while extending threats left the house. At about 05:30 AM, my uncle reached at house, who found marks of strangle on the neck of my father, therefore, he called police, police took me and my mother to police station, where police recorded my statement. On 11.11.2016 my statement under section 164 Cr.P.C was recorded by Magistrate. Accused Haroon and Anwar Jahan present in court are same so also case property." (bold added)

The eye-witness is the daughter of the deceased and wife of the accused. It has come in evidence that there was a dispute between husband and wife concerning the marriage of the witness to Haroon as opposed to another suitor and that there was ill will between them all on account of her marriage to Haroon. Furthermore, all witnesses are related to the deceased as well as the applicant which immediately puts me on caution as to the evidence of the witnesses including this sole eye-witness.

It is settled by now that I can convict the appellant based on the evidence of this sole eye-witness provided I find it to be trust worthy, reliable and confidence inspiring as provided in most of the authorities relied upon by the APG.

I however do not find the evidence of the above sole eye-witness to be trust worthy, reliable and confidence inspiring and as such I place no reliance on it for the reasons mentioned below.

(i) She states in her evidence that she woke up in the night and heard her mother and the appellant plotting to murder her father on account of the disputes between her mother and father over her marriage to Haroon. No doubt she is a natural witness (though why Haroon, if he was living elsewhere, should be at her house at 3am talking with her mother whilst she is asleep) is less clear but I find it some what doubtful/coincidental that she would wake up in the middle of the night, go out of her room and hear her mother and Haroon loudly speaking about murdering her father. Even more damaging to her evidence is the fact that despite returning to her room where her father was sleeping on the floor she took no steps to wake him up and warn him of the plan of his wife and Haroon to murder him. This conduct does not appeal to logic, commonsense and reason and is contrary to natural human conduct and is simply not believable. In this respect reliance is placed on the case of Muhammed Asif v. The State (2017 SCMR 486)

(ii) Even more damaging to her evidence is that she is wide awake when her mother and Haroon enter her room and start murdering her father with a dopeta around the neck in the case of Haroon and by putting a pillow over his mouth in respect of her mother yet she does nothing to intervene and rather allows her mother and Haroon (husband) to murder her father. Again this conduct does not appeal to logic, commonsense and reason and is contrary to natural human conduct and is simply not believable. In this respect reliance is again placed on the case of Muhammed Asif (Supra).

(iii) Once her father has been murdered and Haroon has left the house she remains in bed and does not raise the alarm which conduct again does not appeal to logic, commonsense and reason and is contrary to natural human conduct and is simply not believable. In this respect reliance is again placed on the case of Muhammed Asif (Supra).

(iv) In fact it is her 4 year old brother who raises the alarm to the neighbor who was sleeping in the same room at the time of the murder but was not even woken up by the struggle of the eye-witness after the murder. Furthermore, the eye-witness does not tell her brother about who committed his father's murder and nor does she share the information with her sister. Her brother who would have been about 7 at the time of the trial was also not called to give evidence.

(v) When her uncle, the complainant, arrives at the crime scene she fails to tell him that she witnessed the murder and as such is not even named in the FIR as being an eye-witness to the murder.

(vi) If she was married with Haroon why was she not living with him in his house and why were they living apart?

Thus, based on my disbelieving the evidence of sole witness to the murder as mentioned above what other supportive/corroborative material is there against the appellant?

2024 M L D 1386

[Sindh]

Before Mohammad Abdur Rahman, J

National Tiles CeraMics Ltd through Authorized Officer---Appellant

Versus

Sui Southern Gas Company Limited---Respondent

M.A. No. 54 of 2021, decided on 25th August, 2023.

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

----Ss.6(1), 7 (2) & 13---Suit for recovery of gas dues---Application for leave to defend summary suit---Limitation---Respondent / Sui Southern Gas Company Limited filed summary suit for recovery of amount due against appellant / consumer---Trial Court dismissed application filed by appellant / customer for leave to defend summary suit as the same was barred by 21 days---Validity---Trial Court had requisite jurisdiction to entertain suit filed by respondent / Company summarily, in its capacity of Gas Utility Court---High Court declined to take any exception to order passed by Trial Court, as there was no illegality or infirmity in the order dismissing application seeking leave to defend summary suit---Appeal was dismissed, in circumstances.

Southern Gas Company Limited v. Messrs Data CNG Filling Station Larkana 2021 MLD 568; Sikander Hayat v. Hasina Sheikh PLD 2010 SC 19, Muhammad Suleman v. Shaukat Ali 2009 SCMR 678; Malik Umar Aslam v. Sumera Malik PLD 2007 SC 362; Pakistan National Council of Arts through Director General v. Azimul Waqar 2001 SCMR 1561; Wali Muhammad Kokhar v. Government of Sindh 2001 SCMR 912 and Bashir Ahmad v. Muhammad Sharif PLD 2001 SC 228 rel.

Aziz Khan for Petitioner.

Nemo for Respondent No.1.

Nabi Nux Leghari and Mukesh Kumar for Respondent No. 2.

Nemo for Respondent No. 3.

Nemo for Respondent No. 4.

Dates of hearing: 3rd, 4th, 10th and 20th May, 2023.

Judgment

Mohammad Abdur Rahman, J.---This Appeal is preferred under Section 13 of the Gas Theft Control and Recovery Act, 2016 as against the order dated 29 May 2021 passed by the District Judge Karachi (South) in Summary Suit No. 16 of 2022 whereby an application that had been maintained by the Appellant seeking Leave to Defend Summary Suit No. 16 of 2022 was dismissed.

1. The facts of this Suit are not in dispute. The Respondent has instituted a suit under Subsection (1) of Section 6 of the Gas Theft Control and Recovery Act, 2016 for the recovery of a sum of Rs. 80,122,000 (Rupees Eighty Million One Hundred and Twenty Two Thousand) from the Appellant bearing Summary Suit No. 16 of 2022 before the District Judge Karachi (South). The Suit was instituted by the Respondent on 7 February 2020 and notices were issued to the Appellant for 15 February 2020. The Appellant initially refused service whereafter notice was ordered to be effected through pasting and publication in a newspaper. On 24 March 2020 the Appellant received a copy of the notices and the matter was relisted for the filing of a written statement for 11 April 2020. From that date onwards until 28 September 2020 the matter was adjourned primarily on account of the a notification suspending work in the courts on account of the Covid 19 pandemic and finally on that date the Appellant did not file a Written Statement but instead filed an Application for Leave to Defend Summary Suit No. 16 of 2022 on 17 September 2020.

2. It is alleged by the Appellant that there was a misimpression created by the orders passed by the District Judge Karachi (South) wherein in the orders passed by that court it was noted that the matter was being adjourned for the filing of a Written Statement while the suit being summary in nature required an application for Leave to Defend to be filed within a period of 21 days as mandated by Subsection (2) of Section 7 of the Gas Theft Control and Recovery Act, 2016 and which reads as under:

" … (2) The defendant shall file the application for leave to defend within twentyone days of the date of first service, provided that where service has been validly effected only through publication in the newspapers, the Gas Utility Court may extend the time for filing an application for leave to defend if satisfied that the defendant did not have knowledge thereof."

While notice of the application was claimed by the Plaintiff on 24 March 2020 and on account of the Covid 19 Pandemic work of the Courts was suspended from 22 March 2020 until 3 August 2020, the District Judge Karachi (South) in Summary Suit No. 16 of 2022 was pleased to hold that even with such time being discounted the Leave to Defend application had been filed after 44 days and was therefore barred by a period of 21 days under Subsection (2) of Section 7 of the Gas Theft Control and Recovery Act, 2016 and proceeded to decree the suit as prayed with mark up at the prevailing rate set by the State Bank of Pakistan.

1. Mr. Aziz Khan began his arguments on behalf of the Appellants by stating that the reason for the delay in filing the application for leave to defend was on account of the impression created by the court which had in its orders directed that a Written Statement should be filed and that no man should be prejudiced by a wrongful action on the part of the Court. Mr. Mukesh Kumar advanced arguments on behalf of the Respondent and stated that ignorance of the law was not an excuse and the Appellant must be prejudiced for not following the law. The matter was heard and adjourned for 10th May 2023 when on that date Mr. Aziz Khan took a further jurisdictional argument stating that the constitution of the court under the provisions of section 3 of the Gas Theft Control and Recovery Act, 2016 had been impugned in a Constitutional Petition before this Court and I should also await adjudication on that issue. He stated that the issue of the jurisdiction of this Court had been addressed in the decision reported as Sui Southern Gas Company Limited v. Messrs Data CNG Filling Station Larkana and in which it was held that a notification dated 2 May 2017 had been issued by the Federal Government and which had notified the constitution of the Gas Utility Court under Section 3 of the Gas Theft Control and Recovery Act, 2016 and has stated that the Gas Utility Court had the jurisdiction to act in both civil and criminal matters under that statute. He agitated that notwithstanding the judgement, until the decision by this Court in the Constitutional Petition this appeal should be adjourned. As I was not in agreement with keeping a matter pending indefinitely, I had thereafter reserved this matter for Judgement.

2. It seems that Gas Utility Court has been constituted under Section 3 of the Gas Theft Control and Recovery Act, 2016 and which reads as under:

" … 3. Constitution of Gas Utility Courts.---(1) The Federal Government may, in consultation with Chief Court concerned, and by notification in the official Gazette, establish as many Gas Utility Courts in a district as it may deem necessary for the purposes of this Act and appoint a Judge for each of such Courts from amongst the District and Sessions Judges in that district.

Explanation.----For the purpose of this subsection District and Sessions Judge includes Additional District and Sessions Judge.

(2) Where more Gas Utility Courts than one have been established to exercise jurisdiction in the same territorial limits the Federal Government shall define the territorial limits of each such Court.

(3) Where more Gas Utility Courts than one have been established in the same or different territorial limits, the High Court may if it considers it expedient to do so in the interests of justice or for the convenience of parties or of the witnesses, transfer any case from one Gas Utility Court to another."

It is apparent that under Section that the Federal Government has to constitute a Gas Utility Court by issuing a notification in the official gazette and which will exercise jurisdiction as stated in the Gas Theft Control and Recovery Act, 2016.

The Jurisdiction of the Gas Utility Court once constituted under the Gas Theft Control and Recovery Act, 2016 is clarified in Section 4 of the Gas Theft Control and Recovery Act, 2016 as under:

" … 4. Exclusive Jurisdiction of Gas Utility Courts.

(1) A Gas Utility Court shall have exclusive jurisdiction with respect to all matters covered by this Act.

(2) The Court having jurisdiction under this Act shall be a Gas Utility Court having jurisdiction in the place in which the Gas Utility Company, consumer, gas producer or offender, as the case may be, is situated."

(Emphasis is added)

As is apparent the matters covered by the Gas Theft Control and Recovery Act, 2016 are found in Section 6 of the Gas Theft Control and Recovery Act, 2016 which confers both civil and criminal jurisdiction on the Gas Utility Court as under:

" … 6. Procedure for complaints and suits for default before Gas Utility Court----(1) Where a person is involved in an offence under this Act or where there are sums due or recoverable from any person, or where a consumer has dispute regarding billing or metering against a Gas Utility Company, a consumer or Gas Utility Company, as the case may be, may file a complaint or suit, as the case may be before a Gas Utility Court as prescribed by the Code of Civil Procedure, (Act V of 1908) or the Code of Criminal Procedure, 1898 (Act V of 1898)."

1. It seems by a notification dated 2 May 2017 a Gas Utility Court was established in the following terms:

" … "NOTIFICATION

Islamabad, the 2nd May, 2017

S.R.O. 293(I)/2017.----In pursuance of section (3) of the Gas (Theft Control and Recovery) Act, 2016 (XI of 2016), the Federal Government, in consultation with the Chief Justice of the High Court of under the said Act to exercise the powers for trial of offences under the said Act in their respective districts, namely:-

| | | | --- | --- | | S.No. | District and Session Judges | | (2) | (2) | | 1. | District and Sessions Judge, Karachi (South). | | 2. | District and Sessions Judge, Karachi (Central). | | 3. | District and Sessions Judge, Karachi (East). | | 4. | District and Sessions Judge, Karachi (West). | | 5. | District and Sessions Judge, Dadu. | | 6. | District and Sessions Judge, Hyderabad. | | 7. | District and Sessions Judge, Jamshoro. | | 8. | District and Sessions Judge, Kashmore. | | 9. | District and Sessions Judge, Larkana. | | 10. | District and Sessions Judge, Mirpur Khas. | | 11. | District and Sessions Judge, Shaheed Benazirabad (Nawab Shah). | | 12. | District and Sessions Judge, Sanghar. | | 13. | District and Sessions Judge, Sukkur. | | 14. | District and Sessions Judge, Tando Mohammad Khan. | | 15. | District and Sessions Judge, Thatta. | | 16. | District and Sessions Judge, Malir. | | 17. | District and Sessions Judge, Badin. | | 18. | District and Sessions Judge, Ghotki. | | 19. | District and Sessions Judge, Jacobabad. | | 20. | District and Sessions Judge, Khairpur. | | 21. | District and Sessions Judge, Matiari. | | 22. | District and Sessions Judge, Naushahro Firoz. | | 23. | District and Sessions Judge, Kamber at Shahdadkot. | | 24. | District and Sessions Judge, Shikarpur. | | 25. | District and Sessions Judge, Tando Allah Yar. | | 26. | District and Sessions Judge, Tharparkar. |

(Emphasis is added)

As is apparent the use of the expression "exercise the power for the trial of offences" as contained in the notification created some ambiguity as to whether the notification only constituted the Gas Utility Court for the purpose of only exercising its criminal jurisdiction or as to whether it also conferred the power on the Gas Utility Court to exercise its civil jurisdiction under Section 6 of that Act. The matter was considered by the Court wherein it was held that:

" … 10. Perusal of the aforesaid notification reflects that it has been issued under Section 3 of the 2016 Act in consultation with the Chief Justice of the High Court of Sindh and the Federal Government is pleased to confer the powers of the Judge of the Gas Utility Court under the said Act to exercise the powers for trial of offences under the said Act in their respective districts. The use of the word "trial of offences" was relied upon by the learned Counsel for the respondent to establish that it is only the criminal jurisdiction, which has been conferred on the District Judge and not the civil jurisdiction. Though, apparently, on the face of it, this contention appears to be attractive; however, one must not lose sight of the fact that it is Section 3 of the 2016 Act which has to prevail. Under Section 3, first a Gas Utility Court has to be established and once a Court is established, then the Court itself has been conferred jurisdiction, both civil and criminal by the Act itself under Section 5 ibid. A Court already established under Section 3 does not require any notification for conferring powers for civil or for that matter criminal jurisdiction / matters. The Federal Government does not have the authority to bifurcate Section 3 ibid. Neither it has any power to make any stop-gap arrangements for conferring powers only for trial of offences; nor for any other purposes. Moreover, as noted hereinabove, it is only required to establish the Court by a Notification under S.3 ibid, and that is to be done by appointing a Judge for each such Court from amongst the District and Sessions Judges. It does not require any other effort on the part of the Federal Government as it is not the intention of the legislature that some separate Courts would be established for or under the 2016 Act and separate and independent Judges would also be appointed. For all legal and practical purposes, the notification by itself can only be validated if it is issued under Section 3 by establishing the Gas Utility Courts. In fact, this is what the learned Registrar, High Court of Sindh had requested to the Secretary, Ministry of Law and Justice through his letter dated 28.03.2017; however, it seems that the since the immediate worry for the Registrar was continuance of stop gap arrangement in respect of offences, bails and remand issue, therefore, the Ministry while issuing the notification dated 2.5.2017 has lost sight of the very explicit provision of Section 3 of the 2016 Act. If the intention of the Ministry is to confer jurisdiction only for trial of offences i.e. criminal jurisdiction, then the notification itself would be held to be illegal and without lawful authority as Section 3 does not confer any such powers upon the Federal Government to bifurcate the jurisdiction. The only power it has, is to establish Gas Utility Courts and since this is a special law, a Gas Utility Court once established has both the jurisdictions i.e. civil as well as criminal and so also has the exclusive jurisdiction to try all such matters as are mentioned in the Act. The jurisdiction as mentioned in section 5 ibid is independent and inherent of the Court once is it established under Section 3 and is not to be confused with the establishment of the Court under Section 3 of the 2016 Act. In fact, it even provides for transfer of all pending cases regarding recovery of the amount pursuant to alleged theft of gas."

2024 M L D 1436

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Kamran Mirza---Appellant

Versus

The State---Respondent

Criminal Appeal No. 630 of 2021, decided on 30th November, 2022.

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

----Ss. 409, 468, 471 & 477-A---Criminal breach of trust, forgery for the purpose of cheating, using as genuine a forged document, falsification of accounts---Appreciation of evidence---Co-accused acquitted on same set of evidence---Prosecution case was that the accused fraudulently and dishonesty defrauded and caused financial loss to the bank amounting to Rs. 19,09,000/----As per the prosecution case accused and co-accused were jointly involved in the misappropriation of funds/ amount and the deposit slips produced by the witnesses were alleged to be issued or signed by them---Both were sent up for trial however the Trial Court disbelieved the same evidence against co-accused and acquitted him and believed such evidence only against the accused and awarded a conviction---If a set of witnesses was disbelieved to the extent of some accused the same could not be believed in respect of the remaining accused facing the same trial without any independent and strong corroboration---Upon scrutiny of the material available on record, no corroboration was found to maintain the conviction and sentence of the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

Talat Mehmood v. Additional Sessions Judge, Rawalpindi 2022 PCr.LJ 649; Ashfaque Ahmed and 4 others v. The State 2022 PCr.LJ 38; Ulfat Hussain v. The State 2018 SCMR 313; Zafar v. The State 2018 SCMR 326; Imtiaz alias Taj v. The State and others 2018 SCMR 344 and Muhammad Ilyas, chief Manager/Attorney, Allied Bank Ltd v. Shahid Ullah and others PLD 2009 SC 446 and Muhammad Idrees and another v. The State and others 2021 SCMR 621 ref.

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

----Ss. 409, 468, 471 & 477-A---Criminal breach of trust, forgery for the purpose of cheating, using as genuine a forged document, falsification of accounts---Appreciation of evidence---Documentary evidence insufficient for conviction---Prosecution case was that the accused fraudulently and dishonesty defrauded and caused financial loss to the bank amounting to Rs. 19,09,000/----Case of the prosecution was based on oral as well as documentary evidence and the oral evidence had already been disbelieved against the accused therefore there remained only documentary evidence in the shape of counterfoils and the receipts showing the amount was deposited and the bills were paid in the bank---Prosecution had not produced convincing evidence to prove that at the relevant time the accused was posted as a cashier---Documents relied upon by the prosecution against the accused were never sent for seeking expert opinion in respect to confirming the signature of the accused on it nor the prosecution produced any document to prove that the accused was posted as a cashier at the bank at the relevant time---Thus the documentary evidence so produced by the prosecution was not sufficient to maintain the conviction of the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

(c) Criminal trial---

----Nature of crime---Conviction---Scope---Mere heinous or gruesome nature of crime should not detract Court of law in any manner from the due course to judge and make appraisal of evidence in a laid down manner---Extending is benefit of reasonable doubt to accused person being indefeasible and inalienable right of an accused.

Shamshad Ali Qureshi for Appellant.

Ghulam Sarwar Baloch, Assistant Attorney General for the State.

Date of hearing: 15th November, 2022.

Judgment

Zulfiqar Ali Sangi, J.---Appellant Kamran Mirza was tried by the learned Special Court (Offences in Banks) Sindh at Karachi in Case No. 64 of 1999, Crime No. 31 of 1999 registered at PS FIA (CBC), Karachi for the offence under Sections 409, 468, 471 and 477-A, P.P.C. and was convicted under section 409, P.P.C. and sentenced to suffer Ten (10) years Rigorous Imprisonment with fine of Rs.4,218,000/- and in default whereof to suffer Rigorous Imprisonment for Thirty (30) months more; under section 468, P.P.C. to suffer R.I for Seven (07) years with fine of Rs.100,000/- and in default whereof to suffer rigorous Imprisonment for Six (06) months more; under section 471, P.P.C. to suffer Rigorous Imprisonment for Three (03) years with fine of Rs.100,000/- and in default whereof to suffer Rigorous Imprisonment for Three (03) months more and under section 477-A, P.P.C. to suffer Rigorous Imprisonment for Five (05) years with fine of Rs.100,000/- and in default whereof to suffer further Rigorous Imprisonment for Four (04) months. All the sentences were ordered to run concurrently with the benefit of section 382-B Cr.P.C.

1. Brief facts of the prosecution case as per FIR are that on 26.07.1999 Complainant Abdul Razzak Regional Manager (North) MCB Ltd. Modern Motors House, Beaumont Road, Karachi came to the police station and stated that the Account holder of Ibne-e-Sina road Branch bearing Account No.2446-2 namely Ehtesham Ali Naseer, reported to the Branch Manager that he has issued a cheque for Rs.1,00,000/- for encashment but the same was dishonoured by the branch due to insufficient funds, while he had deposited cash of Rs.230,000/- and Rs.4,00,000/- on 06.02.1999 and 03.05.1999 respectively, such slips of funds deposit were issued to him duly stamped and signed by the cashier of the bank however the same amount was not credited in his account. Another application dated 26.07.1999 was also submitted to the Branch Manager MCB, Ibn-e-Sina road branch by another account holder bearing Account No. PLS-3317-2, namely Mrs Naseem Begum, stating that she has deposited an amount of Rs.200,000/- and Rs.300,000/- on 31.03.1999 and 03.05.1999 respectively, such slips of funds deposit were issued to her duly stamped and signed by the cashier of the bank however the amount was not credited in her account. When she presented a cheque on 20.07.1999 for Rs.500,000/-, it was dishonoured, therefore, she also requested to the bank that her money be paid to her and also submitted pay-in-slips of the bank duly stamped and signed.

2. Upon receipt of the above complaints, the investigation was started and during the preliminary investigation it was discovered that Kamran Mirza (Cashier) who was posted at the MCB Ibne Sina road Branch constantly used to receive cash from different customers and affixed his signatures and the bank's seal on the pay-in-slips and pocketed the Bank's money instead of depositing it in the bank. Kamran Mirza has pocketed a total amount of Rs.930,000/- on receipt of cash and he has also misappropriated cash on different dates after receiving from the customers/consumers with regard to the Utility Bills totalling Rs.979,000/- as such, he fraudulently and dishonestly defrauded and caused financial loss to the bank amounting to Rs.19,09,000/-, hence, this FIR was lodged against him.

3. After completing the investigation case was challaned before the court having jurisdiction. After completing the legal formalities charge against the appellant was framed to which he pleaded not guilty and claimed trial. At the trial, the prosecution examined thirteen (13) witnesses including the complainant, mashirs of arrests and recovery so also the Investigating Officers etc., who produced certain documents and other items in support of the case of the prosecution.

4. The statement of the accused under section 342 Cr. P.C. was recorded wherein he denied the prosecution allegations and pleaded his innocence. He, however, neither examined himself on oath nor led any evidence in his defence. After hearing the counsel learned trial Court convicted and sentenced the appellant through impugned judgment as stated above.

5. Learned counsel for the appellant mainly contended that the appellant is innocent and has been falsely implicated in this case; that the impugned judgment passed by the trial Court is bad in law and is not in consonance with the evidence on record and law applicable thereto as such is liable to be set-aside; that the witnesses who were examined by the prosecution were never posted at the time of alleged offence at the concerned branch nor were in knowledge but their evidence is relied upon by the trial court; that the complainant and its witnesses failed to produce any trustworthy evidence to prove the charge against the appellant which fact was totally ignored by the learned Court; that the prosecution has not produced the account holders before the trial court for recording their evidence directly involving the appellant; that at the time of submission of challan, another complaint came on record against co-accused namely S.M. Haider, who was acquitted by the learned trial Court on the same set of allegations and evidence; that there are material contradictions in the evidence of P.Ws but same was ignored by the learned Court; that the prosecution has not been able to prove the case against the appellant beyond the shadow of reasonable doubt. He has prayed for the acquittal of the appellant by extending him the benefit of the doubt. In support of his contentions he has relied upon the cases of Talat Mehmood v. Additional Sessions Judge, Rawalpindi (2022 PCr.LJ 'Lahore Rawalpindi Bench' 649), Ashfaque Ahmed and 4 others v. The State (2022 PCr.LJ 'Sindh' 38), Ulfat Hussain v. The State (2018 SCMR 313), Zafar v. The State (2018 SCMR 326), Imtiaz alias Taj v. The State and others (2018 SCMR 344) and Muhammad Ilyas, Chief Manager/Attorney, Allied Bank Ltd v. Shahid Ullah and others (PLD 2009 Supreme Court 446).

6. On the other hand, the learned Assistant Attorney General, has contended that the prosecution has successfully proved its case by examining the P.Ws, who have no enmity with the appellant. There is no major contradiction in the depositions of the complainant and P.Ws; the prosecution produced oral as well as documentary evidence against the appellant as such the impugned judgment does not call for any interference by this court and as such the appeal be dismissed.

7. We have heard learned counsel for the parties and perused the material available on record with their able assistance.

8. In the first round of the trial, co-accused S.M. Haider was acquitted whereas the appellant was convicted vide judgment dated 14.09.2011, which was assailed by the appellant before this court in Cr. Appeal No.383/2011 and vide order dated 22.10.2020, this court remanded back the case to the trial court with directions to record evidence of the six P.Ws afresh giving right of cross-examination to the defence counsel and thereafter record the statement of appellant under section 342 Cr. P.C. affording an opportunity to produce a defence witness if he so desires and then render a fresh judgment within six months from the date of the order. After the remand of the case, only three P.Ws, namely P.W.1 Deedar Ali Shaikh, P.W.2 Muhammad Shahzad Akhtar and P.W.3 Muhammad Nasir Umar were examined whereas the rest of the three were not examined as one of them had expired and the two others had moved abroad and could not be served.

9. The prosecution examined PW-7 to 13 as the victims whose amount was misappropriated. PW-7 did not depose a single word against the appellant nor he handed over any amount to the appellant even though he does not know how his amount was misappropriated. During cross-examination, he stated that "It is correct that I cannot say that I had given amount to deposit in my account to accused Kamran Mirza. Voluntarily says, now I cannot recognize as I cannot see properly." The PW-8 had deposed that he was depositing installments on behalf of his brother and was handing over the amount to the cashier; the slip through which he had deposited the amount was exhibited in evidence as Ex. 10-I which bears his signature. He has not deposed a single word that it was signed by the cashier of the bank but admitted that it was signed by him. However, he had deposed that he had handed over the amount to the appellant. PW-9 had also not deposed a single word against the appellant. PW-10 deposed against the appellant that for two slips/transactions he handed over the amount to appellant Kamran Mirza which was misappropriated. During cross-examination he stated that "I am not conversant with the signature of accused Kamran Mirza." PW-11 also deposed against the appellant that he handed over the amount to the appellant which was misappropriated. PW-12 had not deposed a single word that he handed over the amount to the appellant. PW-12 during cross-examination stated that at the time of deposit only one cashier was sitting in the bank. He also deposed during examination-in-chief that he came to know that the person who received the amount as the cashier was Manzoor Hussain. PW-13 deposed that he deposited the amount at the cash counter and received slips and he is unable to say who was sitting at the cash counter at that time. It reflects that only PWs 8, 10 and 11 deposed against the appellant that they have deposited the amount with the appellant however they have not provided proof that the amount was handed over by them to the appellant. Though they produced the slips before the investigation officer and the investigation officer had not sent the same to the handwriting expert to confirm that these slips were issued or signed by the appellant.

10. PW-2, Muhammad Shahzad Akhtar deposed that he received an oral complaint from the account holder that an amount of Rs.4,63,000/- had not been accounted for in his account bearing No.KBS-60-8 which he had deposited on 16.1.1999. He verified the record and also the working sheet of that date but did not find any entry of the above amount. Then on 23.8.1999 another account holder Shafiqa Kazi also came and claimed that her amount of Rs.53,700/- has not been accounted for in her account bearing No.PLS-1079-9 which she had deposited on 16.01.1999. She also submitted a counterfoil of the deposit pay slip which he verified the record as well as a working sheet of the concerned date but did not find any such entry. Thereafter, on 20.08.1999 another account holder namely Muhammad Sajid having A/c No.2553-6 came and complained that he had deposited a total amount of Rs.261,462/- by way of three deposit slips which has not been accounted for. He provided foil of the deposit slips as proof of deposit which were for Rs.51,462/- dated 20.5.1999 and Rs.95,000/- dated 22.5.1999. These slips showed that amount has been received by cashier/accused Kamran Mirza whereas 3rd for Rs.115,000/- dated 14.5.1999 was showing the amount received by cashier Manzoor Hussain. Again on 3.9.1999 another account holder Nasir Mehmood Khan having A/C No.7758-6 appeared and claimed not to account for an amount of Rs.50,000/- which he had deposited on 27.2.1999. He also provided as proof the counterfoil of deposit pay in slip dated 27.2.1999 which shows the amount received by cashier Manzoor Hussain. Again on 28.8.1999, Syed Mehtab H. Zaidi complained that his installment of HBFC of Rs.1000/- has not been accounted for which he deposited on 3.4.1999 and he provided the counterfoil of the deposit slip. On 2.12.1999 Amjad Ali account holder of A/C No.2175-1 came and lodged a complaint regarding non-accounting for of his deposit of Rs.150,000/- which he deposited on 25.1.1999. He produced a counterfoil of deposit pay in slip and the said slip is in the handwriting of S.M. Haider who was Manager at that time and the amount was received by accused Kamran Mirza. On 11.9.1999 one Mehmood Naqi came and complained that he had deposited the installment of HBFC for a sum of Rs.10,000/- on 11.9.1998 which has not been accounted for and the said amount was received by Manzoor Hussain and provided counterfoil of deposit pay in slip. On 11.10.2000 he handed over documents pertaining to the case to the I.O who seized those documents through a seizure memo. No inquiry was conducted by the bank and if any was conducted it was not brought before the trial court. This witness belongs to Bank and he had not produced any evidence in respect of the posting of the appellant at the time of depositing the amount by the persons who made a complaint to him. As per his evidence, the amount was received and the slips were issued by the accused Manzoor Hussain, S.M. Haider and appellant Kamran Mirza his evidence in respect of accused S.M. Haider was not believed by the trial court and S.M. Haider was acquitted. Further, he admitted during cross-examination that at the time of the alleged fraud he was not posted at the said Bank. He further stated that "It is fact that at that time two cashiers used to sit on the cash counter one for receiving the cash and the other to pay the cash. I do not know that the accused present in court was used to sit on the counter of payment of cash as at that time I was not posted in the said branch." This witness also admitted that "The case was registered prior to my posting in the said branch as such I have no knowledge about this case." Evidence of PW-3, Muhammad Nasir Umar is only in respect of the issuance of cheque books.

11. The investigation officer PW-1 Deedar Ali Shaikh was examined and as per his evidence he received the case papers along with a written complaint of Manager MCB, from PS Sharifabad and his letter through DD FIA, CBC, Karachi on 7-8-1999 on such basis he registered the FIR No.31/1999. He arrested accused Kamran Mirza on 7.8.1999 and recorded the statements of PW Abdul Razzaq, Amin Khatri and others under section 161 Cr.P.C. then submitted interim challan against the accused. He also recorded the statements of PWs under section 161 Cr.P.C. of Muhammad Rafiq Ahmed and Muhammad and he has not deposed a single word as to whether he sent a receipt for the opinion of the handwriting expert or not nor he had exhibited any report of the handwriting expert. The opinion of a Police Officer who had investigated the case as to the guilt or innocence of an accused person is not a relevant fact, and is therefore not admissible, under the Qanun-e-Shahadat Order, 1984; as he is not an "expert" within the meaning of that term as used in Article 59 of the Qanun-e-Shahadat Order, 1984. Even the Criminal Procedure Code (Cr. P.C) does not authorize him to form such an opinion. Determining the guilt or innocence of an accused person alleged to be involved in the commission of an offence is a judicial function that can only be performed by a court of law. This judicial function cannot be delegated to the Police Officer investigating the case. The Police Officers are empowered under the provisions of Chapter XIV of the Cr. P.C., only to investigate the non-cognizable offence with the order of a Magistrate and the cognizable offence without such order. This power of investigation, in no way, includes the power to determine the guilt or innocence of the accused persons. An investigation, as defined in section 4(1)(l) of the Cr.P.C., includes all proceedings under the Cr.P.C. for the collection of evidence conducted by a Police Officer or by any other person authorized by a Magistrate. This definition makes it clear that the assignment of a Police Officer conducting an investigation is limited to the collection of evidence, and the evidence when collected has to be placed by him before the competent court of law. Only the court has the power and duty to form an opinion about the guilt or innocence of an accused person and to adjudicate accordingly based on evidence produced before it. An opinion formed by the investigating officer as to the non-existence or existence of sufficient evidence or reasonable ground of suspicion to justify the forwarding of an accused person to a Magistrate under sections 169 and 170 of the Cr. P.C. does not amount to an opinion as to the guilt or innocence of the accused person. Despite such opinion of the investigating officer the final determination even as to the existence or non-existence of sufficient ground for further proceeding against the accused person is to be made by the Magistrate under sections 173(3) and 204(1) of the Cr.P.C. on examining the material available on record and not based on the opinion of the investigating officer. Since the evidence of the witnesses of the case is not believed by this court as discussed above then the evidence of the investigation officer only is not sufficient to maintain conviction. Reliance is placed on the case of Muhammad Idrees and another v. The State and others (2021 SCMR 621).

12. As per the prosecution case appellant and co-accused S.M. Haider were jointly involved in the misappropriation of funds/amount and the deposit slips produced by the P.Ws were alleged to be issued or signed by them. Both were sent up for trial however the trial court disbelieved the same evidence against co-accused S.M. Haider and acquitted him and believed such evidence only against the appellant and awarded a conviction. It is well settled that if a set of witnesses is disbelieved to the extent of some accused the same cannot be believed in respect of the remaining accused facing the same trial without any independent and strong corroboration. Upon scrutiny of the material available on record, we find no corroboration to maintain the conviction and sentence of the appellant.

2024 M L D 1467

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Mewa Khan---Appellant

Versus

The State---Respondent

Criminal Appeal No. 650 of 2021, decided on 24th November, 2022.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Safe custody of narcotic and its transmission for chemical analysis doubtful---Prosecution case was that 12-kilograms charas was recovered from the rickshaw of the accused---Accused was arrested by the police on 18.09.2020 when narcotic weighing 12-kg was recovered from a rickshaw which the accused was driving---Said narcotic initially remained with the complainant until he handed them over to the Investigating Officer of the case in the morning i.e. 19.09.2020 as confirmed by the evidence of the Investigating Officer who did not inquire where the complainant had kept the case property during the night---Other witness only stated that the complainant brought the case property to the Police Station---Said witness did not say who the narcotic was given to or where it was kept---Therefore, it appeared that the complainant kept the case property with him over night before handing it to the Investigating Officer and as such during that period the complainant could have tampered with the recovered narcotic---It was not clear from the evidence of the Investigating Officer when he took the narcotic to the Chemical Examiner however his exhibited letter to the Chemical Examiner was dated 21.09.2020 and the chemical report stated that it was received from him on 21.09.2020---Thus it appeared that the recovered narcotic was taken to the Chemical Examiner three days after its recovery---According to Investigating Officer, the case property was lying in the Malkhana however there was no evidence to this effect as in his evidence he did not produce any malkhana entry (nor did any other witness) and he admitted that he had not recorded the statement of the Malkhana in charge---Prosecution had not been able to prove safe custody of the narcotic form the time when it was recovered from the accused till the time when the same was sent for chemical examination as it appeared that the narcotic was unaccounted for three days during which time it could have been tampered with and as such the chemical report was of no legal value to the prosecution in proving the recovered narcotic---Appeal against conviction was accordingly allowed.

Momin Khan v. The State 2009 MLD 122; Hakim Ali v. The State 2001 PCr.LJ 1865; The State v. Abdali Shah 2009 SCMR 291, Balochistan Trading Company (Pvt.) Ltd. v. National Bank of Pakistan 1998 SCMR 1899; Mushtaq Ahmad v. The State 2002 SCMR 474, Mehboob-ur-Rehman v. The State 2010 MLD 481; Shafa Ullah Khan v. The State 2021 SCMR 2005 and Zafar v. The State 2008 SCMR 1254 ref.

Qaisar v. State 2021 SCMR 363 rel.

Tahir Rahim for Appellant.

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

Date of hearing: 18th November, 2022.

Judgment

MOHAMMAD KARIM KHAN AGHA, J.---The appellant Mewa Khan son of Murad Ali has preferred this appeal against the judgment dated 26.10.2021 passed by the VIIIth Additional District and Sessions Judge/ Additional Model Criminal Trial Court, Karachi West in Sessions Case No.741 of 2020 arising out of Crime No.448 of 2020 under sections 6/9-C of the CNS Act, 1997 registered at P.S. SITE-A, Karachi whereby the appellant was convicted under section 265-H(ii) Cr.P.C. for the offence under sections 6/9-C of CNS Act, 1997 and sentenced to Life Imprisonment with fine of Rs.100,000/-. In the event of failure to pay the fine he was ordered to undergo S.I. for 06 months more. The benefit of section 382-B Cr.P.C. was also extended to the appellant.

1. The facts of the prosecution case are that the complainant ASI Muhammad Ali of PS SITE-A left PS along with PC Rameez, PC Shehryar and DHC Khalid Rehman for patrolling in police mobile No.SPD-394. During patrolling from different places when he reached at Post Office Chowrangi, Estate Avenue Road, SITE Karachi at 2330 hours, he saw that one rickshaw was coming from DC Office, Habib Bank Chowrangi, in suspicious condition. The complainant stopped the Rickshaw and on inquiry the driver of Rickshaw disclosed his name as Mewa Khan son of Murad Ali. On search of Rickshaw, the complainant ASI Muhammad Ali recovered one cloth bag of different color from under the back seat of Rickshaw containing 10 packets of chars. On 5 packets of chars R-10-K was written with blue marker and on 5 packets R-11 was written which were wrapped with yellow color tape. The weight of chars was 12 Kilograms. Then he prepared the memo of arrest and recovery and sealed the case property on the spot. He brought the accused and case property at PS and lodged the FIR against the accused.

2. After completion of investigation I.O. submitted charge sheet against the accused Mewa Khan to which he pleaded not guilty and claimed trial.

3. The prosecution in order to prove its case examined 03 witnesses and exhibited various documents and other items. The appellant in his S.342, Cr.P.C statement denied the allegations against him however he did not give evidence on oath or call any DW in support of his defence case.

4. After hearing the parties and appreciating the evidence on record the trial court convicted the appellant and sentenced him as set out earlier in this judgment, hence, the appellant has filed this appeal against his conviction.

5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 26.10.2021 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellant has contended that he is completely innocent and has been falsely implicated in this case by the police in order to show their efficiency; that the recovered narcotic was foisted on him by the police; that S.103, Cr.P.C was violated as there was no independent mashir; that the prosecution had failed to prove safe custody and safe transmission of the narcotic from the time it was recovered from him until the time it was taken to the chemical examiner and as such the chemical report is of no legal value and for any or all of the above reasons he be acquitted of the charge by being extended the benefit of the doubt. In support of his contentions he has placed reliance on the cases of Momin Khan v. The State (2009 MLD 122) and Hakim Ali v. The State (2001 PCr.LJ 1865).

7. On the other hand learned Additional Prosecutor General Sindh appearing on behalf of the State has fully supported the impugned judgment. In particular he has stressed that the accused was caught red handed on the spot in possession of a large quantity of narcotics which could not have been foisted; that the witnesses have fully implicated the appellant in this case and since they had no ill will or enmity towards the accused there evidence could be safely relied upon; that safe custody and safe transmission of the narcotic to the chemical examiner had been proved which lead to a positive result and as such the prosecution had prove its case against the accused beyond a reasonable doubt and the appeal be dismissed. In support of his contentions he placed reliance on the cases of The State v. Abdali Shah (2009 SCMR 291), Balochistan Trading Company (Pvt.) Ltd. v. National Bank of Pakistan (1998 SCMR 1899), Mushtaq Ahmad v. The State (2002 SCMR 474), Mehboob-ur-Rehman v. The State (2010 MLD 481), Shafa Ullah Khan v. The State (2021 SCMR 2005) and Zafar v. The State (2008 SCMR 1254).

8. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence and considered the relevant law including the case law cited at the bar.

9. In narcotic cases, one of the most crucial aspects of the case is that the prosecution must prove safe custody of the narcotic from the time of its recovery until the time when it is sent for chemical examination. If they fail to do so then there is a possibility that the narcotic substance had been tampered with before it was received at the chemical laboratory for its examination. In such like cases where unbroken chain of custody cannot be proved by the prosecution then the chemical report is of no legal value. It is noted that this is the view taken by the Supreme Court regardless of the amount of the recovered narcotic whether small or huge as the principle remains the same. In this case the appellant was arrested by the police on 18.09.2020 when narcotics weighing 12-kg was recovered from a rickshaw which the appellant was driving. Those narcotics initially remained with the complainant (PW 1 Muhammed Ali) until he handed them over to the IO of the case in the morning (i.e 19.09.2020) as confirmed by the evidence of the IO who was PW 3 Abdul Shakoor who did not inquire where the complainant had kept the case property during the night. PW 2 Muhammed Ramiz only states that the complainant brought the case property to the PS. He does not say whom the narcotic was given to or where it was kept. It appears therefore that the complainant kept the case property with him over night before handing it to the IO and as such during this period the complainant could have tampered with the recovered narcotic. It is also unclear from the evidence of the IO PW 3 Abdul Shakoor when he took the narcotic to the chemical examiner however his exhibited letter to the chemical examiner is dated 21.09.2020 and the chemical report states that it was received from him on 21.09.2020. Thus it appears that the recovered narcotic was taken to the chemical examiner 3 days after its recovery. According to PW 3 Abdul Shakoor the case property was lying in the Malkhana however there is no evidence to this effect as in his evidence he did not produce any malkhana entry (nor did any other PW) and he admitted that he had not recorded the statement of the Malkhana in-charge. Thus, based on particular facts and circumstances of this case we find that the prosecution has not been able to prove safe custody of the narcotic form the time when it was recovered from the appellant till the time when the same was sent for chemical examination as it appears that the narcotic was unaccounted for for three days during which time it could have been tampered with and as such the chemical report is of no legal value to the prosecution in proving the recovered narcotic.

10. With regard to the importance of the prosecution proving safe custody of the narcotic from the time of its recovery to the time it was sent for chemical analysis the same was stressed/emphasized by the Supreme Court in the recent case of Qaisar v. State (2021 SCMR 363) which held as under;

2024 M L D 1489

[Sindh]

Before Mohammad Karim Khan Agha and Omar Sial, JJ

Khalid Zafar---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. 22 of 2022 and Confirmation Case No. 19 of 2020, decided on 3rd October, 2022.

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

----Ss. 302(b), 324, 397 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Benefit of doubt---Infirmities---Accused was charged for making firing upon complainant and his brother while looting money and mobile cards from them, due to which complainant sustained firearm injuries while his brother died---Complainant and the deceased each were shot three times making a total of six firearm wounds which in usual circumstances ought to have bleed profusely but no blood was recovered from the inside of the shop where the incident allegedly took place---No bullet mark was found in the shop despite six firearm shots being discharged---No one from the restaurant who allegedly took the eye-witness and the deceased from the shop to the private hospital was examined to that effect---No medical evidence had been produced from any source to prove the injuries sustained by the complainant---No evidence was available to show that the deceased was ever taken to a private hospital---Medical Officer who carried out the post mortem of the deceased stated that the deceased was brought by SIP---Said SIP was not examined as to whether he had collected the dead body from a private hospital---Investigating Officer recovered three out of the six empties and it was not stated where they were recovered from i.e. inside or outside the shop---Said facts raised some doubt whether the incident actually took place as narrated by the complainant at his shop and whether he was even present at the time of any such incident---Accused did not even take the police to the place of wardat so there was no evidence that he knew where it was---Neither the alleged robbed cash of Rs 15,000 nor robbed mobile phone cards were recovered from the accused on his arrest---Appeal against conviction was allowed, in circumstances.

Tariq Pervez v. The State 1995 SCMR 1345; Wazir Muhammad v. The State 1992 SCMR 1134; Naveed Asghar v. The State PLD 2021 SC 600; Dr. Javid Akhtar v. The State PLD 2007 SC 249; Dadullah v. The State 2015 SCMR 856; Khalid Saif Ullah v. The State 2008 SCMR 688; Tariq Iqbal alias Tariq v. The State 2017 SCMR 594; Muhammad Noman v. The State 2017 SCMR 560; Muhammad Talha Hussain alias Noman v. The State PLD 2008 SC 115; Niaz-ud-din v. The State 2011 SCMR 725; Asfandiyar v. The State 2021. SCMR 2009; Muhammad Imran v. The State 2021 SCMR 69; Anwar Shamim v. The State 2010 SCMR 1791; Khaliad Saif Ullah v. The State 2008 SCMR 688; Muhammad Akram v. The State 2006 SCMR 1567; Muhammad Akhtar Ali v. The State 2000 SCMR 727; Mursalin alias Denni v. The State 1999 SCMR 2683 and Moinuddin alias Moin v. The State 2000 YLR 1063 ref.

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

----Ss. 302(b), 324, 397 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light not proved---Accused was charged for making firing upon complainant and his brother while looting money and mobile cards from them, due to which complainant sustained firearm injuries while his brother died---Record showed that it was a night time incident when it was dark; that the complainant according to his own evidence was closing his shop for the night; that the surrounding shops were closed and thus no source of light had been proven in which the accused could identify the accused, who he had not seen before---Complainant would only have got a quick look at the accused in bad light and he gave no description of the accused in the FIR or at any other time and did not draw any picture of the accused---Appeal against conviction was allowed, in circumstances.

Javed Khan v. State 2017 SCMR 524 rel.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence can only reveal what kind of weapon/device was used and the seat of the injuries of the dead and injured---Medical evidence cannot identify the person who inflicted the injuries.

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

----Ss. 302(b), 324, 397 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Benefit of doubt---Confession of accused before the police---Non-admissible---Accused was charged for making firing upon complainant and his brother while looting money and mobile cards from them, due to which complainant sustained firearm injuries while his brother died---Although the accused confessed to the offence whilst in police custody in another case, he was not produced before a Magistrate to record his confession under S.164, Cr.P.C---Thus, no reliance could be placed on confession of accused allegedly made before the police---It did not appeal to logic, reason or commonsense that the accused would confess to such a serious crime as the present one which carried the death penalty whilst in police custody in another case when there was no evidence against him at the time of his arrest in respect of the instant case---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 397 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Benefit of doubt---Recovery of pistol from the possession of accused---Inconsequential---Accused was charged for making firing upon complainant and his brother while looting money and mobile cards from them, due to which complainant sustained firearm injuries while his brother died---Record showed that a pistol was allegedly recovered from the accused at the time of his arrest in the other case fifteen days later but there was no evidence that the said pistol was kept in safe custody before it was sent to Forensic Science Laboratory along with the earlier recovered empties (or that they were kept in safe custody) which made the Forensic Science Laboratory Report doubtful as it could easily have been managed especially as the pistol along with empties were sent to Forensic Science Laboratory after a delay of thirteen days after recovering the pistol---Appeal against conviction was allowed, in circumstances.

(f) 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.

Moula Bux Bhutto for Appellant.

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

Zulfiqar Ali Jalbani for the Complainant.

Date of hearing: 27th September, 2022.

Judgment

Mohammad Karim Khan Agha, J.---Appellant Khalid Zafar son of Abid Zafar was tried in the Court of Vth Additional Sessions Judge / Model Criminal Trial Court (East) Karachi under Crime No.183/2014 under sections 302/ 324/397, P.P.C. registered at PS Shahrah-e-Faisal, Karachi and vide judgment dated 16.09.2020 was convicted under section 265-H(ii) Cr.P.C. for an offence punishable under section 302(b) P.P.C. and awarded death sentence as Tazir with fine of Rs.5,00,000/- (Rupees Five Lac) as compensation under Section 544-A Cr.P.0 to the legal heirs of the deceased subject to confirmation by this court. The appellant was further convicted for an offence punishable under section 324, P.P.C. to suffer S.I. for 07 years and to pay fine of Rs.50,000/- and in default of payment of fine he shall suffer S.I. for three (03) months more and also pay Rs.100,000/- as compensation under section 544-A Cr.P.C to injured PW/complainant Ejaz Hussain Shaikh. The appellant was also convicted for an offence punishabie under section 397, P.P.C. to suffer R.I. for 07 years.

1. The brief facts of the case as per FIR lodged by the complainant Ejaz Hussain Shaikh are that he is running Bobby Mart General Store at Qasim Complex, Block-18, Gulistan-e-Jauhar, Karachi and on 07.03.2014 at about 1.45 a.m. (night) he and his younger brother Ayaz were present at the said shop and were closing the shop. Meanwhile, one person armed with deadly weapon arrived there riding in a car and started firing and also demanded money from them. When complainant asked him to stop firing, the culprit opened straight fires, which hit in the abdomen, finger and both legs of the complainant. His younger brother Ayaz also sustained three bullet injuries, two on waist and one on abdomen. Thereafter, they were shifted to Darul Sehat Hospital by the workers of Balochistan Sijji Hotel, where Ayaz, the younger, brother of complainant succumbed to his injuries, whereas the complainant remained admitted in the hospital. Thereafter complainant lodged FIR of this case against unknown persons. Subsequently, present accused arrested in other crimes during investigation also admitted the commission of the offence in this case, and was thereafter also arrested in this case.

2. After completion of investigation, challan was submitted against above named accused and thereafter a formal charge was framed against the accused to which he plead not guilty and claimed trial.

3. The prosecution in order to prove its case examined 05 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in which he denied the allegations leveled against him and claimed false implication by the police. However, the appellant neither examined himself on oath nor produced any witnesses in his defence.

4. After hearing the parties and appreciating the evidence on record, the trial court convicted the appellant and sentenced him as set out earlier in this judgment; hence, the appellant has filed this appeal against his conviction.

5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 16.09.2020 passed by the trial court and, therefore, the same uraw reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellant has contended that the appellant has been falsely implicated in this case by the police in order to show there efficiency; that the complainant is a put up witness as there is no evidence that he was present at the scene of the crime or received any injuries; that even otherwise the correct identification of the appellant by the complainant who is the sole eye-witness in the case cannot be safely relied upon; that the pistol allegedly recovered from the appellant in another case had been foisted on him; that his alleged confession before the police was inadmissible; that the police entries and other FIR's on record were further evidence that this was a false case and thus for any or all of the above reasons the appellant should be acquitted of the charge by being extended the benefit of the doubt. In support of his contentions, he placed reliance on the cases of Tariq Pervez v. The State (1995 SCMR 1345), Wazir Muhammad v. The State (1992 SCMR 1134) and Naveed Asghar v. The State (PLD 2021 SC 600).

7. On the other hand learned APG and learned counsel for the complainant contended that the eye-witnesses correct identification of the appellant could be safely relied upon; that the medical evidence of the deceased Ayaz supported the ocular evidence; that the pistol which was recovered from the appellant in another case matched with the empties which were recovered at the scene; that he was a habitual offender and hardened criminal and as such the prosecution had proved its case beyond a reasonable doubt and that appeal be dismissed and the confirmation reference answered in the affirmative due to the brutal nature of the crime and the lack of mitigating circumstances. In support of their contentions, they placed reliance on the cases of Dr. Javid Akhtar v. The State (PLD 2007 SC 249), Dadullah v. The State (2015 SCMR 856), Khalid Saif Ullah v. The State (2008 SCMR 688), Tariq Iqbal alias Tariq v. The State (2017 SCMR 594), Muhammad Noman v. The State (2017 SCMR 560), Muhammad Talha Hussain alias Noman v. The State (PLD 2008 SC 115), Niaz-ud-din v. The State (2011 SCMR 725), Asfandiyar v. The State (2021. SCMR 2009), Muhammad Imran v. The State (2021 SCMR 69), Anwar Shamim v. The State (2010 SCMR 1791), Khaliad Saif Ullah v. The State (2008 SCMR 688), Muhammad Akram v. The State (2006 SCMR 1567), Muhammad Akhtar Ali v. The State (2000 SCMR 727), Mursalin alias Denni v. The State (1999 SCMR 2683) and Moinuddin alias Moin v. The State (2000 YLR 1063).

8. We have heard the arguments of the learned counsel for the appellant, learned Additional Prosecutor General Sindh and learned counsel for the complainant and gone through the entire evidence which has been read out by the learned counsel for the appellant, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

9. At the outset based on the prosecution evidence, especially the medical evidence we find that Ayaz (the deceased) was murdered by firearm.

10. The issue before us is whether the prosecution has proved beyond a reasonable doubt that the appellant robbed Bobby Mart General Store at Qasim Complex Blaock E Gulistan-e-Johar Karachi on 07.03.2014 at about 0145am and in so doing murdered Ayaz (the deceased) by firearm and injured by firearm the complainant Ejaz Hussain Shaikh.

11. After our reassessment of the evidence we find that the prosecution has NOT proved beyond a reasonable doubt the charge against the appellant for which he was convicted keeping in view that each criminal case is based on its own particular facts, circumstances and evidence for the following reasons;

(a) We find that the prosecution's case rests almost exclusively on the evidence of the sole eye-witness to the incident as to the place of the incident and his ability to correctly identify the appellant who allegedly came to his shop, robbed him, murdered his brother and also seriously injured him by firearm and as such we shall consider his evidence keeping in view the entirety of the prosecution case/ evidence;

(i) Eye-witness PW 1. Ejaz Hussain. He is the complainant in the case. According to his evidence on 07.03.14 he and the deceased were present at his shop at about 1.20am when they were closing the shop. The accused then arrived and fired with his pistol at the deceased which hit the deceased on his abdomen and then shot the deceased in his chest and demanded money from him. He told the accused that he his giving him the money but the accused fired on him and hit him on his left hand. The accused then fired for the third time on the deceased and hit him on the backside. The accused then again demanded money from him and fired at him which hit him on the abdomen and thereafter the accused fired on him twice which fire hit him on both thighs. Then accused looted cash RS15,000 which he handed over to him. Accused also looted mobile phone cards and then left the place of the incident in his Liana car. Thereafter some boys from opposite restaurant namely Balochistan Sajji arrived there and shifted him and the deceased to Dar-ul-Sehat Hospital where the deceased expired and he remained for treatment. He identified the accused in the court as the same person who had robbed and shot him and the deceased.

It is to be noted that the complainant and the deceased were each shot three times making a total of 6 firearm wounds which in usual circumstances ought to have bleed profusely but no blood was recovered from the inside of the shop where the incident allegedly took place.

No bullet mark was found in the shop despite 6 firearm shots being discharged.

No one from the Balochistan Sajji restaurant who alleged took the eye-witness and the deceased from the shop to the private hospital was examined to this effect.

No medical evidence has been produced from any source to prove the injuries sustained by the complainant a part from one photo where he does not look like a person who had just received one bullet to the chest, one to his hand and one on each thigh.

There is no evidence that the deceased was ever taken to a private hospital. PW 3 Kaleem who carried out the post mortem of the deceased states that the deceased was brought at 3am by SIP Chaudhry Latif to JPMC.SIP Chaudhry Latif was also not examined as to whether he had collected the dead body from a private hospital.

The IO went and inspected the wardat without any one who could even point it out. Presumably he was given the name of the shop and went there. He only recovered 3 out of the 6 empties and it is not stated where they were recovered from i.e inside or outside the shop.

All the above gives us pause and raises some doubt whether the incident actually took place as narrated by the complainant at his shop and whether he was even present at the time of any such incident.

Even if we believe that the eye-witness was present at the time of the incident we note that it was a night time incident when it was dark, that the complainant according to his own evidence was closing his shop for the night, that the surrounding shops were closed and thus no source of light has been proven on which the accused could identify the accused who he had not seen before which cases usually require an identification parade. Admittedly the accused might have been close to the deceased as there was blackening on his wounds but not necessarily the complainant where there is no medical evidence to support any blackening around his wounds which he allegedly received at the time, the situation would have been one of great trauma as both he and his brother had been shot which might have effected his ability to correctly identity the accused; he would only have got a quick look at the accused in bad light; he also gave no hulia of the accused in his FIR or at any other time and did not draw any picture of the accused; apparently he recognized the accused from a photo which the police showed him; this photo has not been exhibited so we do not know if it bears a likeness to the accused or where even the police got the photo from or even if it actually existed; he was not taken for an identification parade because he was apparently injured but there is no evidence to suggest that he remained in the hospital for even one week and could not later on have appeared before an identification parade to see if he could identify the accused; the accused identified the appellant in court after about 5 years when he would have also have had plenty of opportunity to see the accused before trial; that the supreme court as a rule has deprecated in court identification of unknown accused.

Although the complainant would have no reason to substitute the real killer of his brother with an innocent person and we can we can convict based on the evidence of a sole eye-witness however based on the particular facts and circumstances of this case as discussed above we find that even if the eye-witness was present at the time of the incident based on the reasons mentioned above he would not have been able to correctly, safely and reliably identify the appellant which in effect means that although he had no intention of substitution he was mistaken in his identification of the accused and as such we veer on the side of caution in this case and find that the eye-witness was not able to correctly identify the appellant.

In this respect reliance is placed on the case of Javed Khan v. State (2017 SCMR 524) concerning the necessity for an early hulia/ description of an accused by an eye-witness in his S.161, Cr.P.C statement before an identification parade and the need to strictly follow the rules governing identification parades where it was held as under at P.528 to 530:

1. We have heard the learned counsel and gone through the record. The prosecution case rests on the positive identification proceedings and the Forensic Science Laboratory report which states that the bullet casing sent to it (which was stated to have been picked up from the crime scene) was fired from the same pistol (which was recovered from Raees Khan in another case). We therefore proceed to consider both these aspects of the case. As regards the identification proceedings and their context there is a long line of precedents stating that identification proceedings must be carefully conducted. In Ramzan v. Emperor (AIR 1929 Sindh 149) Perceval, JC, writing for the Judicial Cosimissioner's Court (the precursor of the High Court of Sindh. held that, "The recognition of a dacoit or other offender by a person who has not previously seen him is, I think, a form of evidence, which has always to be taken with a considerable amount of caution, because mistakes are always possible in such cases" (page 149, column 2). In Alim v. State (PLD 1967 SC 307) Cornelius CJ, who had delivered the judgment of this Court, with regard to the matter of identification parades held, that, "Their [witnesses] opportunities for observation of the culprit were extremely limited. They had never seen him before. They had picked out the assailant at the identification parades, but there is a clear possibility arising out of their statements that they were assisted to do so by being shown the accused person earlier" (page 313E). In Lal Pasand v. State (PLD 1981 SC 142) Dorab Patel J, who had delivered the judgment of this Court, held that, if a witness had not given a description of the assailant in his statement to the Police and identification took place four or five months after the murder it would, "react against the entire prosecution case" (page 145C). In a more recent judgment of this Court, Imran Ashraf v. State (2001 SCMR 424), which was authored by Iftikhar Muhammad Chaudhry J, this Court held that, it must be ensured that the identifying witnesses must "not see the accused after the commission of the crime till the identification parade is held immediately after the arrest of the accused persons as early as possible" (page 485P).

2. The Complainant (PW-5) had not mentioned any features of the assailants either in the FIR or in his statement recorded under section 161, Cr.P.C. therefore there was no benchmark against which to test whether the appellants, who he had identified after over a year of the crime, and who he had fleetingly seen, were in fact the actual culprits. Neither of the two Magistrates had certified that in the identification proceedings the other persons, amongst whom the appellants were placed, were of similar age, height, built and colouring. The main object of identification proceedings is to enable a witness to properly identify a person involved in a crime and to exclude the possibility of a witness simply confirming a faint recollection or impression, that is, of an old, young, tall, short, fat, thin, dark or fair suspect....

3. As regards the identification of the appellants before the trial court by Nasir Mehboob (PW-5), Subedar Mehmood Ahmed Khan (PW-6) and Idress Muhammad (PW-7) that too will not assist the Prosecution because these witnesses had a number of opportunities to see them before their statements were recorded. In State v. Farman (PLD 1985 SC 1), the majority judgment of which was authored by Ajmal Mian J, the learned judge had held that an identification parade was necessary when the witness only had a fleeting glimpse of an accused who was a stranger as compared to an accused who the witness had previously met a number of times (page 25V). The same principle was followed in the unanimous judgment of this Court, delivered by Nasir Aslam Zahid J, in the case of Muneer Ahmad v. State (1998 SCMR 752), in which case the abductee had remained with the abductors for some time and on several occasions had seen their faces. In the present type of case the culprits were required to be identified through proper identification proceedings, however, the manner in which the identification proceedings were conducted raise serious doubts (as noted above) on the credibility of the process. The identification of the appellants in court by eye-witnesses who had seen the culprits fleetingly once would be inconsequential." (bold added)

The Supreme Court case of Mian Sohail Ahmed v. State (2019 SCMR 956) has also emphasized the care and caution which must be taken by the courts in ensuring that an unknown accused is correctly identified. In fact such extra care and caution in relying on identification parades is an accepted global phenomena in most criminal jurisdictions as the possibility of deliberately or mistakenly picking out a wrong person from an identification parade and sending an innocent man to jail or in this country potentially to the gallows is very much recognized and thus most jurisdictions (including Pakistan) have put in place mandatory guidelines to greatly limit the chances of such incorrect identification.

(b) That with no eye-witness evidence to identify who carried out the attack the medical evidence becomes inconsequential as it can only reveal what kind of weapon/ device was used and the seat of the injuries of the dead and injured. It cannot identify the person who inflicted the injuries.

(c) That it is notable that although the appellant confessed to the offence whilst in police custody he was not produced before a magistrate to record his confession under S.164, Cr.P.C and thus we place no reliance on his confession allegedly made before the police.

(d) That even the police entries in this case concerning the confession of the appellant before the police appear some what doubtful .Ex 10/G reveals at 4pm on 15.03.14 PW 5 IO Ibrahim departed from PS Shahra-e-Faisal to PS Aziz Bhatti for investigation in this case as apparently the appellant had confessed in another case. However EX 10/H reveals that FIR 113/2014 of PS Aziz Bhatti under which the appellant was arrested and booked was lodged at 4.30pm.So this begs the question as to why the IO was heading to that PS to interrogate the appellant 30 minutes before he had been shown arrested let alone an investigation started where the accused confessed before the IO in this case?

(e) That it does not appeal to logic, reason or commonsense that the appellant would confess to such a serious crime as the present one which carried the death penalty whilst in police custody in another case when there was no evidence against him at the time of his arrest in respect of the instant case.

(f) That a pistol was allegedly recovered from the accused at the time of his arrest in the other case 15 days later but there is no evidence that this pistol was kept in safe custody before it was sent to FSL along with the earlier recovered empties (or that they were kept in safe custody) which makes the FSL report doubtful as it could easily have been managed especially as the pistol along with empties were sent to FSL after a delay of 13 days after recovering the pistol.

(g) That appellant did not even take the police to the place of wardat so there is no evidence that he knew where it was.

(h) That neither the alleged robbed cash of RS 15,000 nor robbed mobile phone cards were recovered from the appellant on his arrest.

2024 M L D 1573

[Sindh]

Before Zulfiqar Ahmad Khan, J

Muhammad Irfan---Petitioner

Versus

The Court of District and Sessions Judge At Karachi East and others---Respondents

Constitution Petition No. S-255 of 2024, decided on 1st March, 2024.

Criminal Procedure Code (V of 1898)---

----S. 491---Constitution of Pakistan, Art. 199---Constitutional petition---Habeas corpus---Custody of minor children---Interim arrangement---Petitioner / father was aggrieved of order passed by Trial Court handing over custody of minors of tender age to respondent / mother---Plea raised by petitioner / father was that custody of minors with him was not illegal---Validity---In a matter involving right of a minor to be dealt with in accordance with law under S.491, Cr.P.C., the question before the Court is not whether the child is abducted by a parent in ordinary sense---During subsistence of marriage both parents have joint custody of their minor children---In a case of matrimonial dispute or altercation between spouses, it is not necessary that children must be physically snatched from one parent to bring the matter within the scope of S.491, Cr.P.C.---In the event husband subjects his wife to abuse forcing her to leave matrimonial home, Court cannot turn a blind eye to the circumstances in which shared custody of children was transformed into sole custody---For the purposes of S.491, Cr.P.C, it is not for the Court to sit in judgment over who is at fault in matrimonial dispute but how would welfare of a child be best preserved in interim when joint custody of child shared by both parents is not an option---Trial Court while passing order in question rightly observed that the minors were of tender ages, therefore, keeping in view their welfare, custody was handed over to respondent / mother---High Court directed petitioner / father to approach Guardian Court for permanent custody of minors and declined to interfere in the order passed by Trial Court---Constitutional petition was dismissed, in circumstances.

The Halsbury's Laws of England, Fourth Edition, Vol.24 para 511; Habeas Corpus, Vol. I, PP.581by Baily; McGrath, Re, 1893 1 Ch 143; American Jurisprudence, Second Edition, Vol. 39 para 148; Howarth v. Northcott 152 Conn. 460; Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891; Nisar Muhammad v. Sultan Zari PLD 1997 SC 852; Mirjam Abberras Lehdeaho v. Station House Officer, Police Station Chung, Lahore and others 2018 SCMR 427; 35 J. Soc. Issues 112 1979; Watts v. Watts, 77 Misc.2d 178, 181- 182, 350 N.Y.S.2d 285, 289-90, (Fam Ct.1973); J. Goldstein, A. Freud a A. Solnit, Beyond the best interests of child 1979 rel.

Sarmad Ali for the Petitioner.

Date of hearing 1st March, 2024.

Order

Zulfiqar Ahmad Khan, J.---Through this petition, the petitioner father has assailed the edict. rendered by learned District and Sessions Judge East, Karachi in HCP No.76/2024 on 24.02.2024 ("impugned Order").

Learned counsel for the petitioner premised his case on the argument that the respondent No.2/ mother initiated proceedings under Section 491 Cr.P.C for recovery of minors who were in the custody of petitioner father but the learned respondent No.1 through the impugned order directed the petitioner to hand over the custody of the minor to the respondent No. 2/mother. He further contended that the custody of the minors with petitioner father cannot be held as illegal and that the petitioner father is also natural guardian, therefore, the impugned order be aside.

Since this is a fresh petition and fixed before the Court in a category of "Fresh Case". I have heard learned counsel for the petitioner at length and have also scanned the available record. The learned respondent No.1 exercised its jurisdiction under Section 491 Cr.P.C. therefore, it is considered expedient to reproduce- Section 491 of Cr.P.C here under:-

491. Power to issue directions of the nature of a habeas corpus: (1) Any High Court may, whenever it thinks fit, direct=

(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;

(b) that a person illegally or improperly detained in public or private custody within such limit be set at liberty ;

(c) that a prisoner detained in any Jail situated within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court;

(d) that a prisoner detained as aforesaid be brought before a Court martial or any Commissioners for trial or to be examined touching any matter pending before such Court martial or Commissioners respectively;

(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and

(f) that the body of a defendant within such limits be brought in on the Sheriff's return of Cepi Corpus to a writ of attachment.

(1A) The High Court may, by general or special order published in the official Gazette, direct that all or any of its powers specified in clauses (a) and (b) of subsection (1) shall, subject to such conditions, if any, as may be specified in the order, be exercisable also by-

(a) a Sessions Judge; or

(b) an Additional Sessions Judge, within the territorial limits of Sessions Division.

(2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this section.

(3) Nothing in this section applies to persons detained under any law providing for preventive detention.

The jurisdiction of a court adjudicating a habeas corpus petition in relation to a child cannot be confused with an ordinary habeas corpus petition where the focus of the court is on the recovery of the person illegally detained in order to uphold his Article 9 rights to life and liberty. In case of a minor, his right to liberty under Article 9 of the Constitution entails a right to be in the custody of the person who ought to have the custody of the minor in accordance with law, as till such time that the minor attains the age of majority he/she has a right to be taken care of whether by parents or relatives or the State. And consequently the focus of the court in a habeas corpus petition filed on behalf of a child is not just on illegal detention but on ensuring that the interim custody of the minor pending its determination by a Guardian Court is being dealt with in accordance with law.

That a habeas corpus petition filed for the lawful treatment of a minor is not to be confused with abduction or illegal detention of an adult and the consideration to be borne in mind in such matter is the welfare of the minor as recognized across common law jurisdictions.

It is stated in the Halsbury's Laws of England, Fourth Edition, Vol.24 (para 511) that:

"511. ...Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minor's welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father's claim in respect of that custody or upbringing is superior to that of the mother, or the mother's claim is superior to that of the father."

(ii) Baily states in Habeas Corpus, Vol. I, (PP.581) that

"The reputation of the father may be as stainless as crystal; he may not be afflicted with the slightest mental, moral or physical disqualifications from superintending the general welfare of the infant; the mother may have been separated from him without the shadow of a pretence of justification; and yet the interests of the child may imperatively demand the denial of the father's right and its continuance with the mother."

(iii) In McGrath, Re, (1893) 1 Ch 143, it was observed that:

"The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word 'welfare' must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the tie of affection be disregarded."

(iv) American Jurisprudence, Second Edition, Vol. 39 (para 148) notes that:

"Generally, where the writ of habeas corpus is prosecuted for the purpose of determining the right to custody of a child, the controversy does not involve the question of personal freedom, because an infant is presumed to he in the custody of someone until it attains its majority. The Court, in passing on the writ in a child custody case, deals with a matter of an equitable nature, it is not bound by any more legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and just. Therefore, these cases are decided, not on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but on the Court's view of the best interests of those whose welfare requires that they be in custody of one person or another; and hence, a court is not bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after careful consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the child's welfare is the supreme, consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parent are entitled to consideration."

(v) In Howarth v. Northcott (152 Conn. 460), the Supreme Court of Connecticut held that:

"The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common law writ, or by statues, but the primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate."

The law laid down in Pakistan is in sync with the jurisprudence referred to above as it is now settled that in exercise of jurisdiction under section 491 of C P.C, the welfare of the child is the primary and predominant consideration.

It is settled by now that jurisdiction of a court under section 491. Cr.P.C is not to be confused with the jurisdiction vested in the guardian court under the Guardians and Wards Act, 1890 and consequently it is not for the court while exercising jurisdiction under section 491 Cr.P.C to determine the entitlement of the parent to retain the custody of a minor on a permanent basis.

It was held by the august Supreme Court in Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891) that section 491, Cr.P.C and the provisions of Guardians and Wards Act, 1890 are neither mutually exclusive nor overlap or destroy one another. Thus to the extent of question of permanent custody of a minor, the matter falls within the domain of the guardian court pursuant to the provisions of the Guardians and Wards Act 1890. And the remedy available under section 491, Cr.P.C is not a remedy available for declaring or determining the question of custody of a minor on a permanent basis. However, courts are obliged to exercise their jurisdiction under section 491 Cr.P.C in a proper case where the question of treatment of a minor in accordance with law comes before the court, pending determination of custody by the guardian court.

It was held by the august Supreme Court in Nisar Muhammad v. Sultan Zari (PLD 1997 SC 852) that availability of a remedy under the Guardians and Wards Act, 1890 is no bar to exercise of jurisdiction under section 491, Cr.P.C. and the availability of such remedy is not in and of itself a valid ground for refusing to interfere in the custody of minor by a parent who is otherwise not entitled to such custody. In para 9 of the said judgment, the following was held:

"In the judgment of Mst. Rizwana Bokhari's case (supra), Muhammad Munir Khan. J. (as his Lordship then was) had rightly laid down the law which we are inclined to approve that on examination of the various provisions of Muslim Law, the Criminal Procedure Code, particularly its section 491, Cr.P.C. and sections 361 and 363 of the P.P.C. indicate that mother is entitled to 'hizanat' of her male child below the age of 7 years, failing that the mother's relations under Muslim Personal Law are entitled to the custody of the minor. Since the two male minors in this case are admittedly below 7 years in age and the three females have not yet attained puberty all the three being less than 8 years, the respondent is, therefore, prima fade entitled to 'hizanat' of all the 5 for the limited purpose of section 491, Cr.P.C. at the moment and the rights of the petitioners to the custody of the aforesaid minors has not accrued so far. In these circumstances, the custody of the aforesaid minors with the petitioners was, therefore, rightly declared illegal or at least improper by the learned Chief Justice of the Peshawar High Court. The learned Chief Justice was also justified to have expressed more than once that ultimate determination of entitlement of the custody shall of course lie with the Guardian Judge to whom the parties were directed to approach, if they so desired."

The latest view of the august Supreme Court was recorded in Mirjam Abberras Lehdeaho v. Station House Officer, Police Station Chung, Lahore and others (2018 SCMR 427), wherein it: was held that:

"22. The Guardian Court is the final Arbiter for adjudicating the question of custody of children. However, where a parent holding custody of a minor lawfully has been deprived of such custody, such parent cannot be deprived of a remedy to regain the custody white the matter is sub judice before Guardian Court. Therefore, in exceptional cases (like the instant case), where the High Court finds that the best interest and welfare of the minor demand that his/her custody be immediately restored to the person who was lawfully holding such custody before being deprived of the same, the Court is not denuded of jurisdiction to pass appropriate orders under section 491, Cr.P.C. directing that custody be restored to that person as an interim measure pending final decision of the Guardian Court. While the tender age of the minor is always a material consideration but it is not the only consideration to be kept in mind by the High Court. Other factors like best interest and welfare of the minor, the procedural hurdles and lethargy of the system, delays in finalization of such matters, the handicaps that the mother suffers owing to her gender and financial position, and above all the urgency to take appropriate measures to minimize the trauma, emotional stress and educational loss of the minor are equally important and also need to be kept in mind while granting ox refusing an order to restore interim custody by the High Court. The two provisions of law namely section 491, Cr.P.C. and section 25 of the Guardians and Wards Act deal with two different situations. As such, the question of ouster of jurisdiction of the High Court on account of provisions of section 12 or 25 of the Guardians and Wards Act or pendency of proceedings under the said provisions does not arise. There is no overlap between the two provisions as both are meant to cater for different situations, the first to cater for an emergent situation, white the latter to give more long term decisions regarding questions relating to guardianship of minors keeping in view all factors including their best interest and welfare."

2024 M L D 1655

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Muhammad Ali---Petitioner

Versus

Ali Gohar and others---Respondents

Constitution Petitions Nos. S-348 of 2023 and S-77 of 2024, decided on 13th May, 2024.

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

----S. 15---Ejectment of tenant---Relationship of landlord and tenant, denial of---Competency of co-owner to collect rent and seek ejectment of tenant---Petitioner/tenant was aggrieved of eviction order passed by Rent Tribunal which was maintained by Lower Appellate Court---Allegedly, there was no relationship of landlord and tenant between the parties---Petitioner/tenant in his evidence had admitted that the premises in question was rented out to him by father of the applicant/respondent No.1---Admittedly, person to whom tenant was allegedly continuously paying the monthly rent till December, 2017, was the son of applicant---Petitioner had also admitted in the pleadings that he was tenant in respect of Shop No.27 under dispute and father of the applicant was real owner of said property---Admittedly, with the consent of all legal heirs of original owner, son of the applicant was authorized to receive the rent of the shops from all the tenants including the petitioner---Petitioner had not denied that applicant was the co-owner/co-sharer of rented property---Hence, it was clear that admittedly applicant was one of the legal heirs of the original owner/landlord, thus, he was co-owner of the premises in question---Co-owner was fully competent and authorized to collect the rent from the tenant and also to seek ejectment of the tenant---Petitions merited no consideration, consequently the same were dismissed.

Haji Muhammad Hanif v. Mohsin Ali 1997 MLD 2754; Capri Autos Motorcycle Dealers v. Dr. Masuma Hasan 2019 YLR 2500; Jiand Rai v. Arjan Das and 3 others 2016 MLD 116; Syed Fakhar Mehmood Gillani v. Abdul Ghafoor 1995 SCMR 96; Hirjibhai Behrana Dar-E-Meher through Attorney v. Messrs Bombay Steel Works, Partnership Firm, through Parner 2001 SCMR 1888; Sudhagshu Bimal Biswas v. Mohammad Mustafa Chowdhury, 1968 SCMR 213; Muhammad Riaz Shaikh and 2 others v. Iftikharuddin and 2 others 2014 CLC 1695; Master Enterprises (Pvt) Ltd, through G.M. Administrator and Finance v. Additional District and Sessions Judge, Karachi South and 2 others 2012 CLC 1532; Razia Sultana v. Muhammad Hasan Khan and 9 others 1991 CLC 632; Muhammad Afzal v. IInd Additional District and Sessions Judge and 2 others PLD 2008 Karachi 189; Shakeel Ahmed and another v. Mohammad Tariq Farogh and others 2010 SCMR 1925 and Imam Din v. Abdul Karim and others 2000 MLD 2054 Nizar Noor and others v. Ameer Ali and others 2020 CLC 254 ref.

Muhammad Azam Khan v. Dr. Iqbal Hameed and 2 others PLD 2021 Sindh 237 and Mohammad Akram Bhatti v. Additional District Judge, Attock and 3 others 2021 CLC 1405 rel.

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

----S. 15---Ejectment of tenant---Willful default in payment of rent---Rent deposited in Court belatedly---Petitioner/tenant was aggrieved of eviction order passed by rent Tribunal which was maintained by Lower Appellate Court---Claim of respondent No.1/applicant was that the petitioner/opponent had committed default in payment of monthly rent from January, 2018---Applicant had deposed on oath before the Rent Controller that he did not receive rent for the default period from the petitioner---In his affidavit-in-evidence, and also during his cross-examination, the applicant deposed in categorical terms that the petitioner had committed default in payment of monthly rent from January, 2018---In such an eventuality, burden shifted upon the shoulders of the petitioner/tenant to prove that he had paid rent for the alleged period---In support of such plea tenant contended that he had committed no default in payment of monthly rent, that Mr. "SH" had been receiving rent from all the tenants including the petitioner but all of a sudden he refused to receive monthly rent from January, 2018, hence the rent was tendered to him through postal money orders for the period from January, 2018, to April, 2018, but he also refused to receive the said money orders---Petitioner further asserted that finding no alternate, he and other tenants filed a Rent Application in the Court of Rent Controller, in May, 2018, which was allowed, thus, he started depositing rent for the premises in question in Court---Petitioner also produced customer receipts of Money Orders before the Rent Controller---From perusal of the coupons/receipts of alleged money orders, it appeared that name of the landlord viz. respondent No.1 or even his son Mr. "SH" did not find mention in said money orders---Besides, the date of the money orders had been shown to be 05.04.2018 whereas, as per own admission of the petitioner/tenant, through said money orders rent for the months of January to April, 2018, were sent by him to the landlord, meaning thereby that even the rent for the months of January to March, 2018, were sent after delay in the month of April, 2018---Apart from above, there was also delay caused in depositing the monthly rent by the petitioner/tenant in Court---Admittedly, the rent for the months of January, February, March and April, 2018, was deposited in lump-sum in the month of May, 2018, in Court, i.e. after the default had already been committed, whereas, under the law, upon refusal of the landlord to receive the rent for the month of January, 2018, he was obliged to have sent the same through money order and upon refusal of the landlord to receive the money order too, he should have straight away approached the Court of Rent Controller and after seeking permission started depositing the rent---On the contrary, admittedly the petitioner starting depositing the rent in court in the month of May, 2018, i.e. when the default had already been committed---Such practice was contrary to the law---Petitions merited no consideration, consequently the same were dismissed.

Allah Din v. Habib PLD 1982 SC 465; Mrs. Asma Makhdoom v. Mrs.Yasmeen Azam 2018 MLD 976; Muhammad Riaz Shaikh and 2 others v. Iftikharuddin and 2 others 2014 CLC 1695; Mst. Razia Sultana v. Mrs. Muhammad Hasan Khan and 9 others 1991 CLC 632 rel.

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

----S. 15---Ejectment of tenant---Bona fide personal need of landlord Prerogative of landlord to select any prevaitness for his personal need---Petitioner/tenant was aggrieved of eviction orders passed by rent Tribunal which was maintained by Lower Appellate Court---In the rent application as well as in the evidence adduced on behalf of applicant, it had categorically been stated that he was an aged person and had three sons and eight daughters and his sons were jobless, hence the shop in question was required for his own personal bona fide use---However, the stand taken by the petitioner/tenant in that context was that the applicant had not served any notice upon him regarding personal bona fide use of the demised shop---Petitioner had further asserted that applicant had recently rented out three shops to other tenants and one shop was still lying vacant and in case he required any shop, the said vacant shop might be utilized for his personal need---It was the prerogative/choice of landlord to select any premises owned by him for residential purpose or for starting any business therein and the tenant, or the Court, had no locus standi to advice him to select any particular house/shop for his personal need---Petitions merited no consideration, consequently the same were dismissed.

Pakistan Institute of International Affairs v. Naveed Merchant and others 2012 SCMR 1498 and Mrs. Shabana Anjum v. Muhammad Gulzar and 2 others PLD 2014 Sindh 295 rel.

(d) Constitution of Pakistan---

----Art.199---Concurrent findings, interference in---Constitutional jurisdiction of the High Court---Scope---Concurrent findings of two Courts below could be interfered with by the High Court in exercise of its extraordinary constitutional jurisdiction only in exceptional cases.

Muhammad Salik Athar through Attorney v. Muhammad Obaid and 3 others PLD 2023 Sindh 411; Martin Dow Marker Ltd., Quetta v. Asadullah Khan 2020 SCMR 2147 and A. Rahim Foods (Pvt.) Limited and another v. K&N'S Foods (Pvt.) Limited and others 2023 CLD 1001 rel.

Ghulam Dastagir A. Shahani for the Petitioner (in C.P. No. S-348 of 2023).

Abdul Rehman A. Bhutto for the Petitioner (in C.P. No. S-77 of 2024).

Zameer Ali Shah for Respondent No. 1 (in both petitions).

Abdul Waris Bhutto, Assistant Advocate General, Sindh for Official Respondents (in both petitions).

Dates of hearing: 22nd March, 5th and 19th April, 2024.

Judgment

Muhammad Saleem Jessar, J.---By this single judgment, l propose to dispose of captioned two constitution petitions as in both petitions subject matter, parties as well as factual and legal aspects of the cases are one and the same.

1. By means of C.P. No.S-348 of 2023, the petitioner Mohammad Ali Shaikh has challenged the Judgment dated 07.11.2023 passed by learned 1st Additional District Judge, Larkana in Rent Appeal No.09 of 2019 filed by the petitioner / tenant, whereby he has upheld the eviction order dated 15.05.2019 passed by 2nd Senior Civil Judge / Rent Controller, Larkana in Rent Application No.09 of 2018 filed by Respondent No.1. C.P. No.S-77 of 2024 has been filed by same petitioner against the Order dated 09.02.2024 passed by VI-Additional District Judge, Larkana in Civil Revision Application No.30 of 2020, whereby he has dismissed the Revision Application filed by the petitioner/tenant and maintained Order dated 09.09.2020 passed by 2nd Senior Civil Judge / Rent Controller, Larkana in Rent Execution Application No.04 of 2019.

2. Brief facts of the case, relevant for the purpose of deciding these constitution petitions, are that respondent No.1 / applicant filed a Rent Application for ejectment of the petitioner stating therein that the father of applicant namely, Ali Nawaz Kanasro, since deceased, was owner of Latif Shopping Center consisting about 30 shops at ground floor, and one residential house at upper storey, constructed on City Survey No. 1466/1 admeasuring an area of 595 Sq. Yards. The shops were rented out to various persons by him in his life time and he used to collect rent from the tenants. It was further averred that after death of applicant's father, the entire property, being joint and undivided, was being looked after by applicant's brother namely, Sher Muhammad, who also died in the year 1990, hence the property / building was looked after by his another brother namely, Javed Ahmed, who also died in the year 2006. It was further asserted that after death of Javed Ahmed property in question was divided amongst all legal heirs / co-sharers by means of a private family settlement, thus applicant being co-owner, acquired Shop No.27 along with other shops in Latif Shopping Center, Larkana being his inherited share in the property. It was further stated in the rent application that the petitioner / opponent was rented out Shop No.27, who was using the same in the name and style of Ali Silk and Dulhan Shop in the Latif Shopping Center, Larkana and used to pay rent at the rate of Rs.6000/- per month under rent agreement which expired in December, 2017. It was further averred that after expiry of rent agreement in the year 2017, applicant asked the tenant to execute fresh agreement and fix new rent amount in accordance with market value but he refused and stopped paying rent to the applicant. Inspite of repeated demands he failed to pay the rent, thus violated the relevant law and willfully defaulted to pay monthly rent from January 2018. It was further asserted that the applicant/landlord is an old and aged person having three sons and eight daughters and all his sons are jobless, hence premises was also required for his personal bona fide need in order to establish his own business in the premises.

3. Upon service of notice, the petitioner / opponent filed written statement / reply stating therein that the father of applicant had given the shops to various persons on "Pagri" including the opponent / petitioner, who had paid pagri amount of Rs.200,000/- to the father of applicant. It was further stated that brother of the applicant namely, Sher Muhammad had died in 1990 and father of applicant expired in the year 2002 therefore it is impossible that brother of applicant could have looked after the property after death of late Ali Nawaz, as alleged in the rent application. It was further asserted that the applicant has not succeeded in establishing that Shop No.27 was acquired by him for his personal bona fide need. It was further stated that with mutual consent of all legal heirs of late Ali Nawaz and all the shopkeepers / tenants of Latif Shopping Center and Mairaj Shopping Center including the opponent / petitioner, it was decided that son of the applicant namely, Sajjad Hussain, will collect the rent of all the shops in future and he will also look after all the issues in respect of rented premises and in this regard Sajjad Hussain in the month of June, 2012 had executed a fresh written tenancy agreement with all the tenants including the opponent / petitioner. As per contents of said agreement, no fresh agreement was required to be executed. It was further stated that said Sajjad Hussain, as per written agreement, used to collect monthly rent from all the tenants including opponent in respect of Shop No.27 till December, 2017 but in the month of January, 2018 he refused to receive the rent from all the tenants of Latif Shopping Center including the opponent / petitioner, as agreed, and he demanded excessive / enhanced monthly rent not only from the opponent but from all the tenants of Latif Shopping Center and Mairaj Shopping Center. It was further stated that said Sajjad Hussain refused to receive rent from January, 2018 and upon his refusal, the opponent in good faith sent him monthly rent for the months of January, 2018 to April, 2018 separately through Money Orders but he also refused to receive the same. Thereafter, all the tenants of Latif Shopping Center including the opponent / petitioner had jointly filed Miscellaneous Rent Application No.01/2018 for deposit of monthly rent before the concerned Rent Controller which was allowed vide Order dated 09-5-2018, since then opponent / petitioner along with other tenants has been depositing monthly rent amount in the Court. He further stated that landlord Sajjad Hussain has also served legal notices through his advocate upon all the tenants of Latif Shopping Center including opponent / tenant of Shop No.27, which were replied through their counsel separately. He further stated that no default was committed by him in making payment of monthly rent and he has punctually and regularly been paying monthly rent of the demised shop as per terms and conditions of tenancy agreement. It was further averred that applicant has not served any notice regarding personal use of property and according to him, the applicant, in order to get the monthly rent enhanced, has filed rent application. He further stated that applicant has recently let out 3 shops to other tenants and one shop is still vacant, therefore, if he requires any shop for his personal use, then he could have occupied the same. Thus, it is evident that he does not require the shop in question for his personal bona fide use. He further asserted that applicant has also not mentioned in rent application that which type of business he wants to start in the demised shop and for that purpose, which of his sons the shop is required, therefore application is not maintainable. Lastly, he prayed that the application under reply be dismissed with compensatory costs.

4. On pleadings of the parties, Rent Controller formulated following points for determination:

i. Whether the relationship of landlord and tenant exists between the parties in respect of shop in application?

ii. Whether the opponent committed default in payment of monthly rent?

iii. Whether the shop in application is required for personal bona fide use of applicant?

iv. What should the order be?

1. After recording evidence of the parties, hearing the arguments of their advocates, Points Nos.1 to 3 were answered in affirmative i.e. in favour of applicant / respondent No.1 and ultimately ejectment application was allowed vide order dated 15.5.2019. The said order was challenged by the opponent by preferring above said First Rent Appeal (the Appeal). The appeal was decided vide order dated 30.09.2019, passed by III-Additional District Judge, Larkana on the basis of special oath but this Court, vide Order dated 02.03.2023 passed in C.P. No.S-856 of 2019 set aside said order and directed the Appellate Court to decide the matter on the basis of record. After remand, the appeal was proceeded to and ultimately the same was dismissed vide order dated 07.11.2023. The applicant / respondent No. 1 filed Rent Execution Application No. 04/2019 which was allowed vide Order dated 09.9.2020 and the Civil Revision Application filed against said order was dismissed vide order dated 09.02.2024. Instant two constitutional petitions have been filed against above said orders passed by the Courts below.

2. I have heard learned counsel for the parties and have gone through the material made available before me on the record.

3. Learned counsel for the petitioner submitted that the petitioner has committed no default in the payment of monthly rent as the landlord has admitted that the petitioner had paid monthly rent upto December 2017. However, after December, 2017, landlord refused to receive monthly rent, hence the petitioner sent rent amount to him through different money orders, receipts whereof are available at page No.107 and onward in Court File of C.P. No.S-348 of 2023. He next submitted that when the landlord refused to accept the rent sent through money orders, the petitioner and other tenants approached the Rent Controller by filing Misc. Rent Application which was allowed vide order dated 09.5.2018 available at page No.95 of Court File and on very next day viz. 10.05.2018, they had deposited the rent before the Rent Controller in MRC, hence the petitioner has not committed any default, therefore, the ground urged by the landlord in his application is not much of consequence. As far as the ground of personal bona fide use, as claimed by the landlord, is concerned, the landlord has not specified as to for which of his legal heirs and for what purpose, he needs the premises, hence the Courts below without considering this aspect of the case, have passed the impugned orders which are not in consonance with the facts of the case as well as evidence adduced by the parties. He, therefore, prayed for allowing the petition and setting aside the impugned orders.

8.(sic) As regards the plea of the landlord regarding payment of rent through money orders non-examination of Post Master, GPO, Larkana, he submitted that the same is not fatal to the case of the petitioner. According to him, it is a settled law that once the tenant has tendered the rent amount, he has fulfilled his job / duty, therefore, he cannot be termed to be defaulter. In support of his contentions, he placed reliance on the following cases:

i. Haji Muhammad Hanif v. Mohsin Ali (1997 MLD 2754).

ii. Capri Autos Motorcycle Dealers v. Dr. Masuma Hasan (2019 YLR 2500).

iii. Jiand Rai v. Arjan Das and 3 others (2016 MLD 116)

iv. Syed Fakhar Mehmood Gillani v. Abdul Ghafoor (1995 SCMR 96).

v. Hirjibhai Behrana Dar-E-Meher through Attorney v. Messrs Bombay Steel Works, Partnership Firm, through Parner (2001 SCMR 1888)

1. Learned counsel further submitted that after change of ownership the respondent had not issued any notice to the petitioner in terms of Section 18 of the SRPO and the Appellate Court has also not considered this aspect of the case. He further submitted that it is settled law that the burden of proving the default in payment of monthly rent by the tenant always lies upon the shoulders of the landlord and said burden has not been discharged by the landlord. In support of his arguments, he placed reliance upon the judgment pronounced in the case of Sudhagshu Bimal Biswas v. Mohammad Mustafa Chowdhury, reported in 1968 SCMR 213. He, therefore, submitted that Courts below have failed to appreciate legal aspects of the case, hence the impugned orders are liable to be set aside. He lastly prayed for allowing instant petitions.

2. Before arguing the case, learned counsel for respondent No.1 / landlord, submitted that it is second round of litigation and prior to this, the petitioner had filed C.P. No.S-856 of 2019 which was disposed of by order dated 02.3.2023, whereby case was remanded to the Appellate Court for deciding the same afresh, however, the petitioner has not disclosed this fact in the petition.

3. Learned counsel for respondent No.1 / landlord, while replying to the objections raised by the petitioner before the trial Court, referred to pages Nos.31, 61 and 69 of the Court File, and submitted that in view of clear admission on the part of the petitioner, collection of rent amount by Sajjad Hussain cannot be objected to, as the petitioners themselves had mutually agreed upon such collection. He further submitted that even if landlord had refused to receive the rent sent through money orders, then, under the law, it was incumbent upon the petitioner / tenant to deposit the same in Court through MRC immediately, but the petitioner / tenant instead of doing so, had sent consecutive money orders in respect of the rent for the months of January, February, March and April, 2018, and then after committing default, he deposited the rent in Court through MRC in the month of May, 2018, therefore, the petitioner committed willful default, hence the Courts below have rightly decided said point in favour of respondent No.1 / landlord.

4. As far as the ground of personal bona fide use is concerned, he submitted that once the landlord appears in the witness box and deposes regarding his personal bona fide need, then the same would be considered sufficient to hold that the landlord has established his claim, as such there is no illegality in the findings given by the Courts below vide impugned orders. In support of his contentions, he placed reliance upon the following decisions:

1. Muhammad Riaz Shaikh and 2 others v. Iftikharuddin and 2 others (2014 CLC 1695), 2. Master Enterprises (Pvt) Ltd, through G.M. Administrator and Finance v. Additional District and Sessions Judge, Karachi South and 2 others (2012 CLC 1532).

3. Razia Sultana v. Muhammad Hasan Khan and 9 others (1991 CLC 632).

1. As far as alleged Agreement / Qabooliat is concerned, learned counsel submitted that it was maneuvered by the petitioner mentioning therein that he had obtained the shop from the land lord on the basis of pagri which is alien to Rent Laws, therefore, such plea is liable to be discarded from consideration. In support, he relied upon the cases reported as Muhammad Afzal v. Iind Additional District and Sessions Judge and 2 others (PLD 2008 Karachi 189), Shakeel Ahmed and another v. Mohammad Tariq Farogh and others (2010 SCMR 1925) and Imam Din v. Abdul Karim and others (2000 MLD 2054). He also placed reliance upon an unreported Judgment dated 11.01.2023 passed by this Court in C.P. No.S-300 of 2021, (re: Qurban Ali v. Ali Gohar and others).

2. Learned counsel for the petitioner also referred to Subsection (3) to Section 10 of SRPO, 1979, and submitted that in case the monthly rent amount rendered by the tenant through money orders, is refused to be received by the landlord, the same may be deposited in Court through MRC which was done by the petitioner. He further submitted that after such deposit, the nominee of the landlord has been collecting / withdrawing the amount which aspect has not been taken into consideration by the Courts below. In rebuttal, Mr. Zamir Ali Shah, learned counsel for respondent No.1, submitted that if landlord collects / withdraws the rent amount deposited by the tenant in Court through MRC, the same does not cause any harm to the case of the landlord. In this connection, he placed reliance upon the case reported as Nizar Noor and others v. Ameer Ali and others (2020 CLC 254).

3. Mr. Abdul Waris Bhutto, Assistant Advocate General, supported the impugned orders and opposed the petition.

4. Mr. Abdul Rehman Bhutto, advocate for the petitioner in connected C.P. No.S-77 of 2024 was present before the Court in earlier part of the day, however, at the time of hearing of the petitions, he reportedly left the Court to pick up his children from school and his associate Mr. Mansoor Ali Bhutto, while adopting arguments advanced by Mr. Ghulam Dastgir A. Shahani, prayed for grant of petition and setting aside impugned orders.

5. In the first instance, I would like to deal with the plea raised by the petitioner / tenant that there is no relationship of landlord and tenant between the parties. The petitioner / tenant in his evidence has admitted that the premises in question was rented out to him by father of the applicant / respondent No.1 namely, Ali Nawaz Kansaro. He also admitted in his cross-examination that Sajjad Hussain, to whom he was allegedly continuously paying the monthly rent till December, 2017, is the son of applicant Ali Gohar. The petitioner has also admitted in the pleadings that he is tenant in respect of Shop No.27 of Latif Shopping Centre. He further admitted that Ali Nawaz was real owner of Latif Shopping Centre and that applicant Ali Gohar is son of Ali Nawaz Kanasro. He also admitted that with the consent of all legal heirs of Ali Nawaz, Sajjad Hussain, viz. son of the applicant, was authorized to receive the rent of the shops from all the tenants including the petitioner. He has not denied that Ali Gohar is the co-owner / co-sharer of Latif Shopping Centre. From above, it is clear that admittedly applicant Ali Gohar is one of the legal heirs of the original owner / landlord namely, Ali Nawaz, thus, he is co-owner of the premises in question. Needless to emphasize that now it is well settled that a co-owner is fully competent and authorized to collect the rent from the tenant and also to seek ejectment of the tenant. In this connection, reference may be made to the case of Muhammad Azam Khan v. Dr. Iqbal Hameed and 2 others, reported in PLD 2021 Sindh 237, wherein it was held as under:

"6. In the instant matter, such plea is even misconceived for simple reason that referred earlier proceedings were launched by father of the respondent/ applicant who, undeniably, is dead thereby making his legal heirs, including the respondent/applicant as one of the co-owner/co-sharer and other legal heirs have given no objections to the present landlord though legally, in the rent jurisdiction every co-owner has a right to agitate the plea of personal bona fide need irrespective of fact that tenancy, created by other co-sharer because legally every co-sharer has his/her own circumstances hence legally shall have a right to establish the plea of personal bona fide need in respect of such premises. Reference may be made to Imran Qadir v. Roqiya Sultana and 7 others 2017 CLC Note 80 wherein it is observed as:-

"Any of the co-sharers may file a rent case against the tenant irrespective of the fact that some other co-sharers had inducted the tenant in the tenement. (Abdul Ghani v. Abrar Hussain 1999 SCMR 348 and Muhammad Hanif and others v. Muhammad Jameel and 5 others 2002 SCMR 429)."

1. In another case reported as Mohammad Akram Bhatti v. Additional District Judge, Attock and 3 others (2021 CLC 1405), Honourable Rawalpidi Bench of Lahore High Court, held as under:

"Even if respondent No.4 as a co-owner inducted respondent No.3 as a tenant in the shop which was a joint-property, the respondent as tenant could not deny the right of the petitioner as co-owner and landlord of the property to receive rent or to seek eviction. In "Aftab Ahmed Saeed v. Faisal Shahzad and others" (2005 CLC 1668) it was observed to the effect that every co-owner is entitled to receive rent of the premises as landlord and if one co-owner has not let out the property, but some other co-owner or authorized person entitled to receive rent has, by legal fiction every co-owner of the property shall be deemed to be landlord and competent to maintain ejectment application on any ground available to him under the law and even without joining other co-owners as applicants if the ground of ejectment is otherwise available. Relevant excerpt of the judgment is as under:

"7. Reverting to the legal position, a bare reading of definition of word "landlord", given under section 2(t) of the Sindh Rented Premises Ordinance, 1979, makes it clear that besides person, who is authorized or entitled to receive rent of the premises, every co-owner of the premises is landlord. Thus, if one co-owner has not let out the property, but some other co-owner or authorized person entitled to receive rent has let out the property, by legal notion every co-owner of the property shall be deemed to be the landlord, and competent to maintain ejectment application on any ground available to him under section 14 or section 15 of the Sindh Rented Premises Ordinance, 1979, even without joining other co-owners as applicants, if otherwise such ground of ejectment is available to him."

1. In view of above, the plea raised on behalf of the petitioner / tenant regarding relationship of landlord and tenant between the parties is misconceived hence, liable to be discarded.

2. Now, adverting to the issue of default in payment of monthly rent by the petitioner / tenant, it seems that the claim of respondent No.1 / applicant is that the petitioner / opponent has committed default in payment of monthly rent from January, 2018. It has been deposed on oath by respondent No.1 / landlord before the Rent Controller that he did not receive rent for the defaulted period from the petitioner / opponent. In his affidavit-in-evidence, so also during his cross-examination the applicant / respondent No.1 deposed in categorical terms that the opponent / petitioner had committed default in payment of monthly rent from January, 2018. In such an eventuality, as per settled law, now the burden shifts upon the shoulders of the petitioner / tenant to prove that he had paid rent for the alleged period.

3. In this context, reference may be made to a decision given by a Full Bench of Honourable Supreme Court in the case of Allah Din v. Habib, reported in PLD 1982 SC 465, wherein it was held as under:

"It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him, as required by section 13 (2) (i) of the Sind Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non-payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question."

Reliance, in this connection, can also be placed upon the case of Mrs. Asma Makhdoom v. Mrs.Yasmeen Azam (2018 MLD 976).

1. In support of his plea that he has committed no default in payment of monthly rent, the petitioner / tenant stated that aforesaid Sajjad Hussain had been receiving rent from all the tenants of Latif Shopping Centre including the petitioner but all of a sudden he refused to receive monthly rent from January, 2018, hence the rent was tendered to him through postal money orders for the period from January, 2018 to April, 2018 but he also refused to receive the said money orders. The petitioner / opponent further asserted that finding no alternate, he and other tenants filed Misc. Rent Application in the Court of Rent Controller, Larkana in May, 2018 which was allowed, thus, he started depositing rent for the premises in question in Court. He also produced customer receipts of Money Orders before the Rent Controller.

2. From perusal of the coupons / receipts of alleged money orders, Photostat copies whereof are available at pages 113-114 of the Court File, it appears that name of the landlord viz. respondent No.1 or even his son Sajjad Hussain, does not find mention in said money orders. Besides, the date of the money orders has been shown to be 05.04.2018 whereas, as per own admission of the petitioner / tenant himself, through said money orders rent for the months of January to April, 2018 were sent by him to the landlord, meaning thereby that even the rent for the months of January to March, 2018 were sent after delay in the month of April, 2018.

3. Apart from above, there is also delay caused in depositing the monthly rent by the petitioner / tenant in Court through MRC. Admittedly, the rent for the months of January, February, March and April, 2018 was deposited in lump-sum in the month of May, 2018 in Court through MRC, i.e. after the default has already been committed, whereas, under the law, upon refusal of the landlord to receive the rent for the month of January, 2018, he was obliged to have sent the same through money order and upon refusal of the landlord to receive the money order too, he should have straight away approached the Court of Rent Controller and after seeking permission started depositing the rent through Misc. Rent Case. On the contrary, admittedly the petitioner starting depositing the rent through MRC in the month of May, 2018 i.e. when the default had already been committed. Such practice is contrary to the well settled principle enunciated by the Superior Courts.

4. In this connection, reference may be made to the case of Muhammad Riaz Shaikh and 2 others v. Iftikharuddin and 2 others, reported in 2014 CLC 1695 [Sindh], wherein it was held as under:

"14. Here in this case, it is an established practice by the tenant to pay rent in advance on every 5th of the calendar month and this fact has admitted by the attorney of the petitioners in his evidence, therefore, under the circumstances, the petitioners were required to pay/tender the rent as admitted practice but here in this case admittedly the tenants have sent rent for the month of January, 1994 to March, 1994 on 24-3-1994 through money order, which was also not received by landlord and thereafter the tenants have started to deposit the rent of the disputed period and onward in M.R.C. No.553 of 1994 on 1-1-1995 after committing willful default."

1. This point has elaborately been discussed by this Court in an earlier decision given in the case of Mst. Razia Sultana v. Mrs. Muhammad Hasan Khan and 9 others, reported in 1991 CLC 632 [Karachi], wherein it was observed as under:

"10. The Rent case was filed by the appellant on the ground of non-payment of rent for the period from the month of March to August 1980. The respondents pleaded that the rent for the months of March and April was sent under money order dated 8-3-1980 which was refused by the appellant. Money order was again sent on 9-3-1980 towards the payment of rent for March 1980. This money order was refused and therefore rent for the months of March and April 1980 was sent under money order dated 6.4.1980 which met the same fate. In these circumstances respondents on 24-8-1980 filed Misc. Rent Case No.4767/80 seeking permission of the Rent Controller to deposit rent in Court which was allowed on 2-9-1980 and rent for the months of March to August 1980 was deposited on 8-9-1980. Money Order coupons sent during March and April 1980 are on record as Ex.0-9. 0-10 and 0-11. The authenticity of these Money Orders is highly doubtful. The said Money Orders do not bear round seal of the Post Office or the endorsement of the postman. The respondents failed to produce postal receipts pertaining to the said Money Orders. The first Money Order is alleged to have been sent on 8-3-1980 and second on 9-3-1980 after refusal of the first one by the appellant. The return of first Money Order by the postal authorities on the next day of its dispatch is an act unbelievable and cannot be accepted. Be that as it may, the fact, remains that the said money orders were towards rent for the months of March and April 1980 and thereafter the respondents chose not to pay rent by any of the modes prescribed by law until September 1980 when they deposited rent in the Misc. Rent Case. The payment made in the Misc. Rent Case at a time when the default was already committed cannot save the respondents from the consequence of default in payment of rent. In case the Money Orders were refused by the appellant, as is the case of the respondents, they were under an obligation to immediately avail the alternate mode for legal tender of rent prescribed under section 10 of the Ordinance for enjoyment of the protection provided to tenants by the Ordinance."

1. In view of above, learned Rent Controller had rightly given finding and so also the Appellate Court rightly upheld such finding that the petitioner / tenant had committed default in the payment of rent from January, 2018 to April, 2018.

2. So far as the point of personal bona fide need of the landlord / respondent No.1 is concerned, in the rent application as well as in the evidence adduced on his behalf, it has categorically been stated that applicant is an aged person and has three sons and eight daughters. All of his sons are jobless, hence the shop in question is required for his own personal bona fide use. However, the stand taken by the petitioner / tenant in this context is; that the applicant has not served any notice upon him regarding personal bona fide use of the demised shop. The opponent has further asserted that applicant has recently rented out three shops to other tenants and one shop is still lying vacant and in case he requires any shop, the said vacant shop may be utilized for his personal need.

3. I am of the firm view that above stand taken by the petitioner is contrary to the well settled principle enunciated by the Superior Courts on this point from time to time to the effect that it is the prerogative / choice of landlord to select any premises owned by him for residential purpose or for starting any business therein and the tenant, even the Court too, has no locus standi to advise him to select any particular house / shop for his personal need.

4. In this connection, reference may be made to the case of Pakistan Institute of International Affairs v. Naveed Merchant and others, reported in 2012 SCMR 1498, wherein it was held as under:

"The claim of appellant as regard their personal need, when examined on the basis of their word to word pleadings in paragraphs Nos.4 and 5 of the rent application and the affidavit in evidence of their witness leaves no room for doubt open for discussion on the subject of their choice and preference which has already come on record and remained un-shattered and un-rebutted from the side of respondents Nos.1 and 2. In these circumstances, subsequent developments which might have been relevant in some other cases are of no help to improve the case of respondents Nos.1 and 2 before the High Court in exercise of its jurisdiction under Article 199 of the Constitution. It will be nothing, but reiteration of settled legation position that the statement on oath of the landlord as regards claim of their/his personal need un-shattered in cross-examination and un-rebutted in defence evidence is to be accepted by the Court as bona fide. Moreover, the choice lies with the landlord to select any of the tenament for his personal need and for this purpose the tenant or the Court have no locus standi to give their advice for alternate accommodation."

1. In this context reference can also be made to case of Mrs. Shabana Anjum v. Muhammad Gulzar and 2 others, reported in PLD 2014 Sindh 295, wherein this Court held as under:

"10. While considering the submissions made by both the sides, I reached at the conclusion that it is now settled law as laid down by the Hon'ble apex courts that the choice lies with the landlord to select any tenement for his personal need and for this purpose the tenant or the court has no locus standi to give their advice for alternate accommodation as held in the case of Pakistan Institute of International Affairs v. Naveed Merchant 2012 SCMR 1498. Bona fide requirement of landlord/owner may conveniently be placed after pronouncement of apex court, starts from the case of Saira Bibi v. Syed Anees-ur-Rehman 1989 SCMR 1366 and subsequent decisions reported in 2002 SCMR 241 (Jehangir Rustum Kakalia v. Hashwani Sales Services) and 2001 SCMR 1197 (Jabal Book Depot v. Khatib Ahmedi. In the case of F. K. Irani v. Begum Feroz) 1996 SCMR 1178 the Hon'ble apex Court held that suitability of business and selection of area is choice of landlord and the same cannot be interfered with."

1. In view of above legal position, I fully agree with the finding given by learned Rent Controller and affirmed by the Appellate Court on this point.

2. Even otherwise, it is now well settled that concurrent findings of the two Courts below could be interfered with by this Court in exercise of its extra ordinary constitutional jurisdiction only in exceptional cases.

3. In this context, reference may be made to the case of Muhammad Salik Athar through Attorney v. Muhammad Obaid and 3 others, reported in PLD 2023 Sindh 411, wherein it was held as under:

"5. Now, before proceeding further, it needs to be reiterated that this Court, normally, does not operate as a Court of appeal in rent matters rather this jurisdiction is limited to disturb those findings which, prima facie, appearing to have resulted in some glaring illegalities resulting into miscarriage of justice. The finality in rent hierarchy is attached to appellate Court and when there are concurrent findings of both rent authorities the scope becomes rather tightened. It is pertinent to mention here that captioned petition fall within the writ of certiorari against the judgments passed by both courts below in rent jurisdiction and it is settled principle of law that same cannot be disturbed until and unless it is proved that same is result of misreading or non-reading of evidence."

1. In the case of Martin Dow Marker Ltd., Quetta v. Asadullah Khan, reported in 2020 SCMR 2147, it was held by Honourable Supreme Court that for displacing the concurrent findings of fact recorded by the Lower Courts, also upheld by the High Court in its constitutional jurisdiction, appellant was required to show and establish misreading of evidence and wrongful exercise of jurisdiction by the forum below.

2024 M L D 1721

[Sindh]

Before Muhammad Saleem Jessar, J

Muhammad Shayan alias Shani---Applicant

Versus

The State---Respondent

Cr. Revision Application No. 172 of 2018, decided on 23rd May, 2024.

Penal Code (XLV of 1860)---

----S. 377---Unnatural offence---Appreciation of evidence---Compromise---No forensic report on record---Accused was charged for committing unnatural offence with the son of complainant---Trial Court convicted the accused and awarded him a three years sentence---Appeal was filed by the accused but was dismissed---Complainant, who was father of victim boy, was present before the Court on 28.08.2019 and stated that due to intervention of elders of their community, he had forgiven the accused and raised no objection for his acquittal by way of compromise as he did not want to pursue the case anymore or to prosecute the accused---With regard to prosecution's contention that the offence with which accused stood charged was not compoundable, the complainant, who was father of victim boy had stated before the Court regarding the compromise, thus had extended his no objection for allowing present revision application---Moreover, no offence was committed except alleged attempt---Sperm was found available upon the clothes of the victim, which were not sent to laboratory for DNA testing nor such report was made available with regard to matching of the same with DNA of accused---In absence of DNA report, remaining prosecution evidence, which was imaginary and had not been corroborated with any substantive material except allegation of attempt and in view of settlement of the parties outside the Court, prosecution evidence could not be used for maintaining conviction against the accused---Criminal Revision Application was allowed by setting aside impugned judgments passed by Trial Court and Appellate Court.

Aamir and 2 others v. The State and another 2011 MLD 1468 and Ashique Solangi and another v. The State PLD 2008 Karachi 420 rel.

Abdul Nabi Joyo for Applicant.

Rahat Ehsan, Addl. Prosecutor General, Sindh along with PI Abdul Rehman of P.S Sher Shah for the State.

Date of hearing: 23rd May, 2024.

Judgment

Muhammad Saleem Jessar, J.---Through instant Criminal Revision Application, applicant Muhammad Shayan has assailed the judgment dated 10.09.2018 passed by learned Additional Sessions Judge-VIII, Karachi (West) in Criminal Appeal No.15/2018 whereby he maintained the conviction of the applicant vide judgment dated 19.05.2018 passed by learned Vth Civil Judge and Judicial Magistrate, Karachi (West), in Criminal Case No.1861/2015 (re-the State v. Mohammad Shavan alias Shani) whereby he has been convicted to undergo imprisonment for three years with fine of Rs.25,000/-.

Process issued against complainant has been returned unserved by PI Abdul Rehman of P.S Sher Shah, Karachi on the pretext that complainant had shifted his residence towards Punjab, taken on record.

Learned counsel for the applicant submits that since it was an attempt and no offence was committed; however, the appellant has remained in custody for about 18 months. He further submits that parties have already been entered into settlement outside the Court. In support of his submission, he draws attention of the Court towards order dated 28.08.2019. Per said order, the complainant, who is father of the victim boy Muhammad Ehtisham, was present before the Court and stated that he had no objection if by granting instant revision application, applicant may be acquitted of the charges by way of compromise. Learned counsel further submits that victim as well as his father has extended their no objection by way of compromise, therefore, by granting instant revision application, applicant may be acquitted of the charges. In support of his contention, learned counsel places reliance upon the case of Aamir and 2 others v. The State and another (2011 MLD 1468).

On the other hand, learned Addl. P.G, Sindh opposes the revision application on the ground that applicant is nominated in the FIR; besides, sufficient material was collected by the I.O during investigation, therefore, impugned judgments passed by the Courts below do not suffer from any illegality of infirmity which may warrant interference by this Court.

In earlier part of the day, learned Addl. P.G, Sindh was directed to call fresh jail roll of the applicant. In compliance of said directions, Senior Superintendent, Central Prison, Karachi has submitted jail roll, which reveals that applicant has served out his sentence without remissions as 01 year, 03 months and 08 days up to 19.01.2019 and earned remissions as 00 years, 06 months and 09 days, while remaining sentence of the applicant as per jail roll is 01 year, 11 months and 13 days.

Since, complainant Muhammad Arif, who is father of victim boy Muhammad Ehtisham, was present before the Court on 28.08.2019 and stated that due to intervention of elders of their community, he had forgiven the applicant and raised no objection for his acquittal by way of compromise as he did not want to pursue the case anymore or to prosecute the applicant.

As far as, contention raised by learned Addl. P.G, Sindh that offence with which applicant stands charged is not compoundable, is concerned, the complainant who at the moment is father of victim boy, had stated before the Court regarding compromise, thus had extended his no objection for grant of revision application. Moreover, no offence was committed except alleged attempt. Per learned Addl. P.G, sperm was found available upon the clothes of the victim, which were not sent to laboratory for DNA testing nor such report was made available with regard to matching of the same with applicant's DNA. In absence of DNA report, remaining prosecution evidence, which is imaginary and have not been corroborated with any substantive material except allegation of attempt, in view of settlement of the parties outside the Court, cannot be based for maintaining conviction against the applicant. In case of Aamir and 2 others v. The State and another (Supra), learned Bench of Lahore High Court discussed this issue in para-9 of the judgment in following terms;_

2024 M L D 1729

[Sindh (Sukkur Bench)]

Before Arbab Ali Hakro, J

Mst. Bibi Saira and others---Appellants

Versus

P.O Sindh through Secretary, Home Department, Govt. of Sindh Karachi and another---Respondents

First Civil Appeal No. S-26 of 2021, decided on 22nd April, 2024.

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

----Ss.2, 3, 4 & 5---Civil Procedure Code (V of 1908), S.96---Suit for recovery of damages---Libel---Defamation of respondent and his son in the form of libel by publishing serious malicious allegations on Facebook and TV News Channel causing harm to their reputation, dignity and honour in the society and respondent's department---Admission on part of the appellants as to libel---Lack of counter evidence in support of defamatory acts---Effect---Contention of the appellants was that suit had been filed by respondent as a counterblast of a decree for recovery of dowry articles in favour of the appellants---Validity---Contents of the statement or interview that was subsequently broadcast on a news channel and posted on a social media account (specifically, a Facebook ID), was deemed sufficient to prove defamation---Defamatory substance had not been refuted by the opposing party---Actions of the appellants constituted an actionable wrong under the Ordinance, 2002---Violation of the Ordinance had been proved especially when the appellants had failed to present any defence plea stipulated in S.5 of the Ordinance, therefore, no formal or additional proof of the defamatory material was required---Appellants did not identify any discrepancies in the record---Upon the establishment of libel, the presumption of injury or damage to one's reputation and goodwill was an axiom of jurisprudence, now codified within S.4 of Ordinance---Once defamation is substantiated, the law invariably infers detriment, injury and diminution to the reputation, goodwill or standing of an individual, their profession, or products, as applicable---High Court dismissed the appeal accordingly.

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

----S.3---Defamation---Types of defamation and key elements that need to be established by a claimant to succeed in a defamation case stated.

Shoukat Ali Makwal for Appellants.

Imran Khan Pathan for Respondent No. 2.

Ahmed Ali Shahani, Assistant Advocate General for Respondent No. 1.

Date of hearing: 4th March, 2024.

Judgment

Arbab Ali Hakro, J.---Through this First Appeal, filed under Section 15 of the Defamation Ordinance, 2002 ("the Ordinance, 2002") read with Section 96 of the Code of Civil Procedure, 1908 ("the Code"), the Defendants/Appellants Nos. 1 to 3 challenge the Judgment and Decree dated 04.6.2021, rendered by the Additional District Judge-II, Khairpur ("the trial Court"). The said decree pertains to the suit filed by the Plaintiff/Respondent (No. 2) seeking to recover an amount of Rupees Two Crore on account of damages. The trial Court decreed the suit to the extent of Rs. 5,00,000/- (Rupees Five Lacs).

1. The brief facts of the case are that Respondent No.2 filed a suit for the recovery of Rupees Two Crore as damages for malicious allegations under the provisions of the Ordinance of 2002. The grounds for this were that Respondent No.2 belonged to a respectable Syed family and was posted as DSP in the SITE area of Sher-Shah District, Karachi West. Respondent No.2's son, namely Inamullah Shah, was married to Appellant No.1, the daughter of Appellants Nos.2 and 3, on 10.9.2017. This marriage ended on 19.01.2018 by way of Khulla, which was granted by the Family Court through an ex-parte decree. Afterwards, Appellant No.1 filed a suit for the recovery of dowry articles against the son of Respondent No.2, who contested the same. It is averred that on 15.5.2018, Respondent No.2 came to know through his friends and well-wishers that a statement against him was given by the appellants on 30.4.2018. This statement was posted on the Facebook ID of Defendant No.4 (Liaquat Rajper, a reporter for Sindh TV News Channel), showing pictures of Respondent No.2 and his son, levelling false, malicious, and defamatory allegations against them. These allegations were admitted by Appellants Nos.1 and 2 to be false during their cross-examination in the proceedings of the family suit. Again, on 03.5.2018 at about 4:45 p.m., Sindh TV News Channel, under the control of Defendant No.5 and with reference to Defendant No.4, broadcasted a false, malicious, and defamatory interview of the appellants from their Channel. In this interview, the appellants levelled baseless and defamatory allegations without proof against Respondent No.2 to damage his reputation in society and gain undue advantage and sympathy. This act badly damaged the reputation of Respondent No.2 among his relatives, friends, and within his department. Due to such an act, Respondent No.2 suffered from mental torture, depression, and physical harm and was unable to perform his duty. On 04.5.2018, Defendant No.4, in collusion with the appellants, again uploaded a defamatory video statement of the appellants on the Facebook ID of Defendant No.4 without any proof or evidence. This also caused severe damage to the reputation of Respondent No.2. It is also averred that Respondent No.2 issued a legal notice dated 09.7.2018 through his Advocate to the appellants, asking them to make an unconditional apology to him for causing physical and mental torture and to pay Rupees Two Crore. However, no reply was made, and Respondent No.2 filed a suit.

2. Upon receiving the notice, the appellants appeared and filed their Written Statement. In it, they controverted the contents of the plaint and claimed that Respondent No.2 and his son maltreated Appellant No.1 every day, making her life miserable. As a result, she was granted Khulla through the Court and filed a suit for the return and recovery of dowry articles, which was decreed. Due to such annoyance, Respondent No.2 filed this suit, which the appellants claim is false, in order to pressure them to withdraw from the dowry articles. It was claimed that due to the illegal acts of Respondent No.2 and his son, which made the life of Appellant No.1 miserable, the appellants protested against them. This protest led to the publication of news. Following this, Respondent No.2 openly issued threats that they would kidnap Appellant No.1.

3. In so far as defendants Nos.4 and 5 are concerned, they, despite service of notice, did not appear before the trial Court to contest the suit. Hence, they were debarred from filing written statements and proceeded ex parte by the trial Court.

4. Learned trial Court out of the pleadings, framed as many as eight issues. Respondent No.2 filed his affidavit-in-evidence, and his witness, namely Rehmatullah Shah, was cross-examined by the counsel for the appellants. On the other hand, appellant No.2 filed his affidavit-in-evidence as of his witness, namely Mushtaq Ali; they were also cross-examined by the counsel for respondent No.2. The learned trial Court finally decreed the suit to the extent of Rs.500,000/- (Rupees Five Lacs).

5. At the outset, learned Counsel for the Applicants submits that learned trial Court passed impugned judgment and decree without applying its judicious mind; that from a perusal of pleadings, it does not show any method which proves any defamation or damage has been caused to the reputation of Respondent; that learned trial Court passed the impugned judgment and decree on technicalities rather on merits; that there is dispute over the dissolution of marriage tie; that learned trial Court ignored all the norms and principles of law by passing the impugned judgment and decree, which is not sustainable and liable to be set aside.

6. Conversely, learned Counsel representing Respondent No.2 has argued that the learned trial Court has rightly passed the impugned judgment and decree, which is well-reasoned and a speaking one; that there are some material documents as well as USB containing video statements, which fact was not denied by Appellants; hence defamatory allegations were proved; that learned trial Court categorically mentioned in its judgment that Respondent has proved his case against the defendants through oral as well as documentary evidence, hence no interference is required by this Court to disturb the findings of the trial Court.

7. Learned AAG, while adopting the arguments advanced by learned Counsel for the Respondent, supports the impugned judgment and decree passed by the learned trial Court.

8. Upon thoroughly examining the records, it is evident that respondent No.2/plaintiff has approached the Court claiming that the appellants, in collusion with defendant Nos.4 and 5, made a statement containing malicious and defamatory words. This statement was subsequently uploaded/posted by defendant No.4 on his Facebook account twice. Furthermore, the appellants gave a defamatory and malicious interview, which was broadcast on the Sindh TV News Channel by defendants Nos.4 and 5. This interview contained false and baseless allegations that respondent No.2, who was the father-in-law of appellant No.1, arranged her marriage to his son, Inamullah Shah, who was mentally unstable. It was also alleged that respondent No.2 committed sexual assault against her (appellant No.1) and issued threats of murder. These allegations have purportedly damaged the reputation of respondent No.2 among relatives, friends, well-wishers, society, and his department. To substantiate his version, respondent No.2 appeared as PW-1 and examined Rehmatullah Shah as PW-2. Documentary evidence was tendered, including screenshots from the Facebook account of defendant No.4, showing photographs of respondent No.2 and his son, and a USB containing video statements of appellant No.1.

9. On the other hand, appellant No.2 admitted that he invited defendant No.4 to his house on 02.5.2018 and acknowledged that his daughter (appellant No.1) disclosed to defendant No.4 that her husband, Syed Inamullah Shah, is mentally unstable, and that her father-in-law (respondent No.2) committed acts of violence against her, leading her to attempt suicide. He admitted that these facts were displayed on the Facebook account of defendant No.4. He also admitted that he did not have his daughter (appellant No.1) medically examined at any hospital to substantiate such allegations as disclosed by his daughter to defendant No.4 and subsequently posted by defendant No.4 on his Facebook account. He further admitted that when such facts were posted by defendants Nos.4 and 5 on their Facebook accounts, respondent No.2 was serving as DSP at District Malir. During his cross-examination, he admitted that "It is correct to suggest that we, the defendants, gave a statement and interview to defendant No.4, Mr.Liaquat Rajper, reporter of Sindh TV News Channel from District Khairpur at District Press Club Khairpur against the plaintiff and his son on 30.4.2018, which was made viral by defendant No.4 on Facebook through defendant No.5."

10. Defamation, a well-established principle of law, is the act of making a statement that impugns a person's reputation, leading to diminished regard among right-thinking members of society or causing them to be shunned or avoided. This principle bifurcates into two distinct torts: libel and slander. Libel, a defamatory statement presented in a fixed medium, is actionable per se, meaning that the law presumes damage to the claimant's reputation without the need for actual proof of such damage. On the other hand, Slander pertains to spoken defamatory statements, where the claimant typically needs to demonstrate actual harm to their reputation. Regardless of whether the defamation is libel or Slander, the claimant must establish three key elements to succeed in a defamation case: -

1. Defamatory Imputation: The statement in question must be defamatory, i.e., it must harm the reputation of the claimant in the eyes of right-thinking members of society.

2. Reference to the Claimant: The defamatory statement must clearly identify or refer to the claimant. It is not necessary for the claimant to be named explicitly as long as they can be identified.

3. Publication: The defamatory statement must have been published or communicated to at least one person other than the claimant. The term 'publication' in this context refers to communicating the defamatory matter to a third party.

1. Defamation, as defined under Section 3 of the Ordinance, 2002, is a wrongful act involving the publication or circulation of a false statement or representation, either orally or in written or visual form. This false statement or representation, if it injures a person's reputation, lowers him in the estimation of others, or reduces him to ridicule, unjust criticism, dislike, contempt, or hatred, is actionable as defamation. The Ordinance 2002 further categorizes defamation into two forms: Slander and libel. Slander refers to any false oral statement or representation that amounts to defamation. On the other hand, libel encompasses any false written, documentary, or visual statement or representation, made either by ordinary form or expression or by electronic or other modern means of devices, that amounts to defamation.

2. Defamation, a severe legal offence, primarily hinges on publishing a defamatory statement in a widely circulated newspaper or spoken in a large gathering. The following elements are crucial for a statement or act to constitute defamation:

False Allegations: The allegations against the plaintiff must be false, baseless, and unfounded. The truth of a statement is a defence to a claim of defamation.

Defamatory Nature: The language used and the allegations made should be defamatory or derogatory in nature. This means that they should harm the reputation of the plaintiff in the eyes of right-thinking members of society.

Publication: The defamatory allegations must have been published in widely circulated newspapers or spoken in a large gathering. The term 'publication' in this context refers to communicating the defamatory matter to a third party.

Malice: The publications made, or words used must have been with Malice without any reasonable cause and justification. In this context, Malice refers to the intent to do harm or act with reckless disregard for the truth.

Direct Attribution: The allegations must have been directly attributed to the plaintiff by specifically mentioning his name. It is not necessary for the plaintiff to be named explicitly as long as they can be identified.

1. Section 04 of the Ordinance, 2002, establishes that the publication of defamatory matter is an actionable wrong, even without proof of special damage to the person defamed. This principle underscores the seriousness of defamation as a legal offence, recognizing the inherent harm that defamatory statements can cause a person's reputation. Once defamation is proved, the law presumes damage. This means the claimant does not need to provide explicit evidence of the harm caused to their reputation. The very act of publishing the defamatory statement is considered sufficient to presume damage. This provision reflects the law's commitment to protecting the dignity and respect of individuals, acknowledging that damage to one's reputation can have serious and far-reaching consequences. Section 04 of the Ordinance, 2002 provides robust protection for individuals against defamatory statements, ensuring that those who engage in defamation can be held accountable, even without tangible proof of damage.

2. The case presents a scenario where both oral and documentary evidence have been produced by respondent No.2, which aligns with his pleadings. The evidence on record substantiates the claim that appellant No.1 used derogatory language, asserting that the son of respondent No.2 was mentally unstable, leading to an accusation that respondent No.2 committed sexual assault on her. This statement has had a detrimental impact on the reputation of respondent No.2, causing significant harm within his social circle, family, friends, and professional department. Despite extensive cross-examination of the PWs, no evidence has emerged that supports the appellants' position. This lack of counter-evidence further strengthens the case of respondent No.2, highlighting the severity of the defamatory statements made by appellant No.1 and their damaging consequences.

2024 M L D 1740

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Irfanullah Pathan and others---Appellants

Versus

The STATE---Respondent

Spl. Crl. Anti-Terrorism Jail Appeals Nos. 14 and 61 of 2021, decided on 26th October, 2022.

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

----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Recovery of explosive substance, possession of illicit weapon, act of terrorism---Appreciation of evidence---Contradictions in the case of prosecution and the statements of the witness---Prosecution case was that illicit weapon and hand grenades were recovered from the possession of the accused persons---Record showed that on the search of a car the police recovered one hand grenade along with one pistol .30 bore having a magazine loaded with 07 rounds, one SMG without number having magazine loaded with 28 round and mobile phones of different companies---Further as per the memo of recovery one hand grenade was recovered from the pocket of the trouser of accused; from pocket of the kameez (shirt) of other accused one hand grenade was also recovered, and from his trouser one .9mm pistol having magazine loaded with 06 live bullets was recovered---Recovery witness during his evidence before the trial Court had not supported the case of the prosecution and deposed that on the information when they reached the place where two white colour cars were standing, they encircled both the cars on the directions of ASI and from one car, two persons came out and from another car one person came out---As per his evidence, ASI searched both the cars and from one car secured one Kalashnikov along with loaded magazines having 28 rounds, 02 hand grenades lying under the back seat as well as one pistol having magazine loaded with 07 rounds and 06 mobile phones were also recovered from the back seat of the said car---Said witness further deposed that ASI also searched another car and secured 02 hand grenades from the driving seat's door including one pistol having a magazine loaded with 06 live bullets and the same were sealed on the spot---From the evidence of relevant witness, it appeared that from both cars 04 hand grenades were recovered and the other weapons were also recovered from the cars---Nothing was recovered from the accused persons as alleged in the memo of arrest and recovery---No other witness of recovery had been examined---Circumstances established that no substance against the accused was found, which connected them with the commission of the offence---Appeal against conviction was allowed accordingly.

Muhammad Zakir and another v. The State 2022 MLD 204; Javed and others v. The State 2021 PCr.LJ 576; Hashim Raza alias Taaro v. The State 2020 PCr.LJ Note 22; Asif Khan v. The State 2018 YLR 661; Muhammad Shafiq and 2 others v. The State 2018 MLD 1377; Mukhtar Ahmed alias Atatoo v. The State 2018 YLR Note 203; Sansar Ali Abro v. The State 2018 PCr.LJ Note 153; Muhammad Akram v. The State 2009 SCMR 230; Tariq Pervez v. The State 1995 SCMR 1345 and Afzul-ur-Rehman v. The State 2021 SCMR 359 ref.

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

----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Recovery of explosive substance, possession of illicit weapon, act of terrorism---Appreciation of evidence---Safe custody of the recovered weapons and explosive substance doubtful---Prosecution case was that illicit weapon and hand grenades were recovered from the possession of the accused persons---Record showed that the descriptions of the recovered weapons were not mentioned in the memo of arrest---However, as per the report of Bomb Disposal Unit, recovery was effected on 29.01.2019 at 09.30 am and hand grenades were handed over to Bomb Disposal Unit on 30.01.2019 between 02.00 to 03.00 pm, as such, the question of safe custody of the grenades/weapons arose as to where those grenades/weapons were kept for more than 17/18 hours for which no explanation was furnished by the prosecution---Report of Bomb Disposal Unit reflected that the incident took place on 27.01.2019 which as per the prosecutor was a typographical mistake however, it was found that the same date had been mentioned in all three reports filed by the prosecution, which also created serious doubts over the prosecution story and made the Bomb Disposal Unit Report doubtful as one date might be a mistake but not all three---Circumstances established that no substance against the accused was found, which connected them with the commission of the offence---Appeal against conviction was allowed accordingly.

Habib-ur-Rehman Jiskani and Owais Ahmed Shaikh for Appellants (in Appeal No. 14 of 2021).

Muhammad Farooq for Appellant (in Appeal No. 61 of 2021).

Muhammad Iqbal Awan Addl. Prosecutor General Sindh for the State.

Date of hearing: 20th October, 2022.

Judgment

Zulfiqar Ali Sangi, J.---Being aggrieved and dissatisfied with the judgment dated 29.02.2020 passed by learned Judge, Anti-Terrorism Court No.X, Karachi in Special Cases Nos.142/2019, 142-A/2019, 142-B/2019, 143/2019, 144/2019 and 144-A/2019 arising out of crimes bearing FIR No.48/2019 under section 4/5 Explosive Substances Act read with 7 ATA, 1997, FIR No.48/2019 under section 23(i)A Sindh Arms Act, 2013, FIR No.49/2019 under section 23(i)(A) Sindh Arms Act, 2013, FIR No.50/2019 under section 4/5 Explosive Substances Act read with 7 ATA, 1997, FIR No.51/2019 under section 4/5 Explosive Substances Act read with section 7 ATA, 1997 and FIR No.52/2019 under section 23(i)(A) Sindh Arms Act, 2013, all FIRs of PS Korangi, Karachi; whereby the appellants were convicted and sentenced as follows:-

i) The accused Jawed Akhtar alias Baba son of Mureed Hussain is hereby "Convicted" in Crime No.48/2019 for the offence under sections 4/5 Explosive Substances Act read with section 6(2)(ee) and punishable under section 7(1)(ff) of ATA, 1997 and sentenced to undergo R.I for '14" years.

ii) The accused Jawed Akhtar alias Baba son of Mureed Hussain is convicted in Crime No.48/2019 for the offence under section 23(i)(A) Sindh Arms Act, 2013 and sentenced him to undergo R.I for "05" years with fine of Rs.50,000. In case of default in payment of fine he shall suffer further R.I for "06" months.

iii) The accused Jawed Akhtar alias Baba son of Mureed Hussain is also convicted in Crime No.49/ 2019 for the offence under section 23(i)A Sindh Arms Act, 2013 and sentenced him to undergo R.I for "05" years with fine of Rs.50,000. In case of default in payment of fine, he shall suffer further R.I. for "06" months.

iv) The accused Irfanullah Pathan son of Azizullah is convicted in Crime No.50/ 2019 for the offence under sections 4/5 Explosive Substances Act read with section 6(2)(ee) and punishable under section 7(1)(ff) of ATA, and sentenced to undergo R.I for "14" years.

v) The accused Abdul Sattar son of Kaloo Khan is convicted in Crime No.51/ 2019 for the offence under sections 4/5 Explosive Substances Act read with section 6(2)(ee) and punishable under section 7(1)(fi) of ATA, 1997 and sentenced to undergo R.I for "14" years.

vi) The accused Abdul Sattar son of Kaloo Khan is also convicted in Crime No.52/2019 for the offence under section 23(i)A Sindh Arms Act, 2013 and sentenced him to undergo R.I for "05" years with fine of Rs.50,000. In case of default in payment of fine, he shall suffer further R.I for "06" months.

All sentences were ordered to run concurrently; however, the benefit of Section 382-B Cr.P.C. was extended to the appellants.

1. Brief facts of the case as described in the FIR are that on 29.01.2019 ASI Zulfiqar Gill was on patrolling duty along with his subordinate staff in Police Mobile-II of P.S Korangi, Karachi. During patrolling duty in the Area, ASI Zulfiqar Gill received information regarding the availability of 03 suspicious persons heavily armed in 02 cars viz. Honda Civic and Charade at link road, Sector 32-A, behind Labour Square Flat Korangi No.11/2, Karachi. On such information at about 0930 hours the police reached the spot and saw 02 cars standing over there wherein 03 persons were available. The police encircled them and managed to apprehend them, who on the query, disclosed their names as Jawed Akhtar alias Baba son of Mureed Hussain, Irfanullah Pathan son of Azizullah and Abdul Sattar son of Kaloo Khan. The accused Jawed Akhtar alias Baba was sitting in a car bearing No.S 0648 (as per Annexure 8/A) produced by PW Muhammad Akmal, who was the eye-witness of the incident, Charade and upon his search, police secured one hand grenade lying in a plastic shopper kept by him in his lap in presence of mashirs. On his further search, the police party also secured one unlicensed 30-bore pistol along with a loaded magazine having 07 rounds including 02 live rounds from inside the said shopper. On his further detailed search, the police party also secured one unlicensed SMG along with a loaded magazine having 28 live rounds lying on his feet in presence of mashirs. As far as accused Irfanullah Pathan is concerned he was also sitting in said Charade and when the police party conducted his search they secured one hand grenade from the right side pocket of his worn pant. Accused Abdul Sattar was sitting in a car bearing No.AFR-052 make Honda Civic and upon his search the police party secured one hand grenade from the right side pocket of his worn kameez and one unlicensed 9 MM pistol along with a loaded magazine having 06 live rounds from left side fold of his worn shalwar. ASI Zulfiqar Gill also inquired from the apprehended accused persons regarding the valid license of the recovered weapons but they failed to produce the same. As regards the SMG secured from the accused Jawed Akhtar alias Baba on query he disclosed that on 10.01.2019 he was under treatment at JPMC Karachi during which he had snatched said SMG from one police official and ran away from the hospital. Accordingly, the recovered weapons and live rounds were sealed by the Head of the Police Party on the spot separately in sealing parcels whereas the hand grenades were taken into custody by the police. The BDU concerned was also informed regarding the recovery of hand grenades in order to defuse them. The accused persons were also asked by the police to produce the Registration Papers of the cars but they could not produce the same. Accordingly, ASI Gill prepared the memo of arrest, recovery and seizure and obtained the signatures of mashirs. Thereafter, the police party returned to the police station where instant FIRs were registered.

2. After completing usual investigation, the case was challaned before the Court having jurisdiction. After completing all legal formalities which include the supply of copies of papers to the accused, the charge was framed against them, to which they pleaded not guilty and claimed to be tried.

3. The prosecution in order to prove its case examined 03 Prosecution Witnesses and exhibited various documents and other items. The statement of the accused was recorded under Section 342 Cr. P.C in which they denied all allegations levelled against them. After-appreciating the evidence on record, the learned trial Court convicted and sentenced the appellants as mentioned above; hence, the appellants have filed these appeals against their convictions.

4. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 29.02.2020 passed by the learned trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

5. Learned counsel for the appellants have contended that the appellants are innocent and have falsely been implicated in this case; that the prosecution has miserably failed to prove the charges against the appellants; that the learned trial court while pronouncing the judgment did not assess the evidence properly; that the whole story has been concocted by the complainant in connivance with his subordinates; that all the PWs were police officials and interested witnesses, although the alleged recovery was effected on spy information but the prosecution failed to associate any private person of the locality, which is apparently a thickly populated area; that there are so many dents and doubts in the prosecution case, therefore, the benefit of the doubt should be given to the appellants; that there are many contradictions in the statements of PWs. They lastly pray for the acquittal of the appellants. They have placed reliance on the cases of Muhammad Zakir and another v. The State (2022 MLD 204), Javed and others v. The State (2021 PCr.LJ 576), Hashim Raza alias Taaro v. The State (2020 PCr.LJ Note 22), Asif Khan v. The State (2018 YLR 661), Muhammad Shafiq and 2 others v. The State (2018 MLD 1377), Mukhtar Ahmed alias Atatoo v. The State (2018 YLR Note 203), Sansar Ali Abro v. The State (2018 PCr.LJ Note 153), Muhammad Akram v. The State (2009 SCMR 230) and Tariq Pervez v. The State (1995 SCMR 1345).

6. On the other hand, learned Addl. P.G. Sindh has fully supported the impugned judgment by contending that the prosecution has successfully proved its case by examining the P.Ws, who had no enmity or ill-will with the appellants; that there is sufficient evidence available on record to connect the appellants with the commission of the offence and prove that they had committed the offences for which they had been charged beyond a reasonable doubt and that there appeals should be dismissed. He has placed reliance on the case of Afzul-ur-Rehman v. The State (2021 SCMR 359).

7. We have heard the learned counsel for the appellants in both the appeals as well as learned Addl. P.G. Sindh and perused the material available on record with their able assistance.

8. The case of the prosecution as per the memo of arrest and recovery so also as per the FIR is that on the search of Charade car the police recovered one hand grenade on whose clip ALGES was prescribed along with one pistol .30 bore having a magazine loaded with 07 rounds one SMG without number having magazine loaded with 28 rounds, mobile phones of different companies details mentioned in the memo. Further as per the memo of recovery one hand grenade was recovered from the pocket of the pant of the accused Irfanullah and the right side pocket of the kameez (shirt) of accused Abdul Sattar one hand grenade was recovered so also from his left side fold of shalwar one 9mm pistol having magazine loaded with 06 live bullets was recovered. It reflects that all three hand grenades which were recovered from the Charade car, one from accused Irfanullah and the others from the possession of accused Abdul Sattar which became three in total. The said memo was attested by the witnesses/mashirs including PW-2 Mohammad Akmal and the same has been exhibited by PW-2 in his evidence. PW-2 Muhammad Akmal during his evidence before the trial Court has not supported the case of the prosecution and deposed that on the information when they reached the place where two white colour cars were standing, they encircled both the cars on directions of ASI Zulfiqar Gill and from one car, two persons came out and they disclosed their names to be Javaid Akhtar alias Baba and Abdul Sattar and from another car one person came out who disclosed his name to be Irfanullah Pathan. As per his evidence, ASI Zulfiqar Gill searched both the cars and from one car Charade secured one Kalashnikov along with loaded magazines having 28 rounds, 02 hand grenades lying under the back seat as well as one pistol having magazine loaded with 07 rounds and 06 mobile phones also recovered from the back seat of the said car. He further deposed that ASI Zulfiqar Gill also searched another car and secured 02 hand grenades from the case of the driving seat's door including one pistol having a magazine loaded with 06 live bullets and the same were sealed on the spot. From the evidence of PW-2, it appears that from both cars 04 hand grenades were recovered and the other weapons were also recovered from the cars. Nothing was recoverd from the accused persons as alleged in the memo of arrest and recovery. No other witness of recovery has been examined.

9. The descriptions of the recovered weapons were not mentioned in the memo of arrest; however, as per the report of BDU, recovery was effected on 29.01.2019 at 0930 hours and hand grenades were handed over to BDU on 30.01.2019 from 1400 to 1500 hours, as such, the question of safe custody of the grenades/weapons arises as to where these grenades/weapons were kept for more than 17/18 hours for which no explanation is furnished by the prosecution. Further, the report of BDU reflects that the incident took place on 27.01.2019 which as per the prosecutor is a typographical mistake however, we examined this fact and found that the same date has been mentioned in all three reports filed by the prosecution, which also creates serious doubts on the prosecution story and make the BDU report doubtful as one date might be a mistake but not all three.

10. On reassessment of the entire evidence as discussed above we find no substance against the appellants which connects them with the commission of the offence and there are other major contradictions in the statement of prosecution witnesses. However keeping in view the principle of giving benefit of doubt to the accused it is not necessary that there be many doubts in the prosecution case and only a single doubt will lead to an acquittal. After considering and re-assessing the material produced by the prosecution before the trial Court, we are of the view that the trial Court has not appreciated the evidence of the prosecution properly and has not followed the correct principles of appreciation of evidence. The entire case set up by the prosecution after the evidence of PW-2 as discussed above has become doubtful. The rule of giving the benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted." While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): "Avert punishments (hudood) when there are doubts" and "Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him faccusedj, let him have his way, because the leader's mistake in pardon is better than mistake in punishment." The Hon'ble Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (peace be upon him) in the case of Ayub Masih v. The State (PLD 2002 SC 1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."

2024 M L D 1768

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Syed Iftikhar Haider Rizvi---Petitioner

Versus

VIth Additional District and Sessions Judge, Karachi Central and others---Respondents

C.P. No. S-1168 of 2019, decided on 20th March, 2024.

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

----Ss.15, 16(1) & 16(2)--- Filing of two applications in rent case---Default in deposit of future tentative rent as ordered by Rent Controller---Striking off defence---Concurrent findings of fact by Courts below---Tenant claimed to have deposited tentative rent in the miscellaneous rent case (MRC)---Contention of the tenant was that he had been evicted by playing fraud with the Court, as there was no relationship of landlord and tenant between the parties, therefore, the possession of the tenement was liable to be restored to the tenant for the reason that tentative rent order was ambiguous and the deposit of rent in MRC instead of in the rent case was neither willful nor deliberate rather the same was a mere technical defect---Validity---High Court while relying on judgments of Supreme Court held that plea of non-compliance of an unambiguous orderwas unjustified, thus, the default was willful and deliberate and not a technical one---Once the tentative rent order is passed, whether it is considered as just, valid and fair, or not,the same is to be complied with, subject to a right to challenge the same before the forum provided under the law---There was no dispute about the relationship of landlord and tenant between the parties, nor, any fraud was played upon the Court by the landlords while filing the two applications, resulting in the eviction of the tenant---Besides, couple of years had already passed since handing over the possession to the landlords---Tenant had committed a will ful default---Constitutional petition was dismissed accordingly.

Major (Rtd.) A.S.K. Samad v. Lt.-Col. (Rtd.) A. Hussain and another 1987 SCMR 1013; Dr. Aftab Ahmed Khan v. Mst. Zaibun Nisa 1998 SCMR 2085; Abdullah Ghanghro and another v. Mst. Tahira Begum and another 1988 SCMR 970; Noor Muhammad and another v. Mehdi PLD 1991 Supreme Court 711; Messrs Adamjee Impex through Hamza Anwar Lakhani v. Shaikh Muhammad Khalid and 4 others 2022 YLR 2255; Gul Muhammad through Legal Heirs v. Kazim Imam Jan through Attorney and another 2001 MLD 27 and Mst. Fatima Bibi v. Jan Muhammad 1991 SCMR 1031 Distinguishable.

Ashiq Ali and another v. Mehar Elahi and 13 others 2001 SCRM 130; Muhammad Iqbal Haider v. Ist ADJ, Karachi Central PLD 2018 SC 35; Niaz Hussain Shah v. Mrs. Shamim Akhtar and others; Muhammad Umer Khan v. Haji Muhammad Sultan Siddiqui and others PLD 1995 Karachi 31 and Syed Asghar Hussain v. Muhammad Owais and 2 others 2018 CLC Note 105 rel.

Sami Ahsan for the Petitioner.

Nemo for Respondents Nos. 1 and 2.

Irfan Ahmed Usmani and Saira Erum Khan for Respondent No. 3.

Nemo for other Respondents.

Dates of hearing: 24th January, 12th February and 27 February, 2024.

Decision

Muhammad Faisal Kamal Alam, J.--- This Constitutional Petition has called in question the three Decisions passed by the learned Rent Controller [dated 22.02.2019], the Appellate Court {of 23.10.2019} and in the Execution Proceeding, vis-à-vis striking off defence of the Petitioner for non-compliance of the earlier Order dated 13.12.2018, passed under Section 16(1) of the Sindh Rented Premises Ordinance (SRPO), 1979.

1. The stance of the Petitioner's Counsel is that the rent has been regularly deposited in the MRC Nos.465 and 466 of 2018, before the IXth learned Rent Controller, Karachi Central so also in the Rent Case No.289 of 2018 and the impugned Orders have been passed by overlooking the Record, which is an illegality, ought to be corrected in this Constitutional Jurisdiction through a Writ of Certiorari; that the first Order [ibid] under Section 16(1) was passed in a slip shop manner, where the fact about the earlier rent already deposited was neither considered nor adjustment was allowed in determining the amount of Rs.26,000/- (rupees twenty six thousand only) to be paid as Tentative Rent.

2. Learned counsel for the Petitioner cited the following Case Law to support his arguments_

i) 1987 SCMR 1013

[Major (Rtd.) A.S.K. Samad v. Lt.-Col. (Rtd.) A. Hussain and another]

ii) 1998 SCMR 2085

[Dr. Aftab Ahmed Khan v. Mst. Zaibun Nisa]

iii) 1988 SCMR 970

[Abdullah Ghanghro and another v. Mst. Tahira Begum and another]-Abdullah Ghanghro and Mst. Tahira Begum Cases.

vi) PLD 1991 Supreme Court 711

[Noor Muhammad and another v. Mehdi

v) 2022 YLR 2255 [Sindh]

[Messrs Adamjee Impex through Hamza Anwar Lakhani v. Shaikh Muhammad Khalid and 4 others]

vi) 2001 MLD 27 [Karachi]

[Gul Muhammad through Legal Heirs v. Kazim Imam Jan through Attorney and another]

vii) 1991 SCMR 1031

[Mst. Fatima Bibi v. Jan Muhammad]

1. On the other hand, learned counsel for the Respondents (Landlord) has supported all the impugned Orders; inter alia, argued that there is violation of earlier Tentative Rent Order passed under the above provision, hence the consequence of the striking off defence, as mentioned in Subsection (2) of Section 16 of the Sindh Rented Premises Ordinance, 1979, has to follow.

2. The Case Law relied upon by the learned counsel of the Respondent is as follows_

i) 2001 SCRM 130

[Ashiq Ali and another v. Mehar Elahi and 13 others]-Ashiq Ali Case.

ii) PLD 2018 SC 35

[Muhammad Iqbal Haider v. Ist ADJ, Karachi Central]-Iqbal Haider Case.

iii) 2017 CLC Note 67, P. 77

[Niaz Hussain Shah v. Mrs. Shamim Akhtar and others]

iv) PLD 1995 Karachi 31

[Muhammad Umer Khan v. Haji Muhammad Sultan Siddiqui and others]

v) 2018 CLC Note 105

[Syed Asghar Hussain v. Muhammad Owais and 2 others]

1. Arguments heard and record perused.

2. Précis of the Case Law cited by the Petitioner's Counsel is, that if a Tenant is depositing the rent in a Miscellaneous Rent Case, then this cannot be termed as violation of a Tentative Rent Order; if the Tentative Rent Order itself is vague, uncertain, did not quantify the amounts lying deposited in miscellaneous or other proceedings, then, unless an element of contumaciousness is patent on the record, should not, ordinarily, be made the foundation for striking off the defence of a Tenant in terms of Section 16 [2] of the Sindh Rented Premises Ordinance; depositing of rent in a Miscellaneous Rent Case instead of the Rent Case in which the Tentative Rent Order is passed, can be termed as a technical default and not a willful, justifying the eviction from the demised premises. Although, normally a Court would not be inclined to disturb the existing state of affairs when the person in possession has a prima facie claim to retain it, but, Possession of the tenant was restored where a patent fraud was played by the purported subsequent owner in obtaining the possession couple with the fact that the relationship of Tenant and Landlord was in dispute; Section 144 of the Civil Procedure Code is applicable to Rent proceeding, inter alia, where both Parties are claiming ownership in respect of a Tenement, regarding which revisional proceeding is also sub judice.

3. Summary of the Case Law relied upon by the Respondents' Counsel is, when a Tentative Rent Order is passed under Section 16 [1] of the SRPO, directing to deposit the arrears and future rent, non-compliance whereof would entail consequences provided in law. Even a delay of one day in depositing the rent would be default within the meaning of Section 16 [1] and the Rent Controller has no power to extend the time, but to pass an order under Section 16 [2], striking off the defence of the Tenant. Tentative Rent Order is quite specific, then plea of technical default is not acceptable on the ground that rent was continuously being deposited in a Miscellaneous Rent Case filed by the Tenant.

4. Mst. Rehana Begum, the predecessor-in-interest of the present private Respondents filed the Rent Case No.289 of 2018, for evicting the Petitioner from the Subject Premises, viz. Ground Floor of a residential House and the two Shops Nos.1 and 2, wherein the Petitioner was inducted as a Tenant through the Tenancy Agreements, which were renewed from time to time. The above Case was contested through the Written Statement of the Petitioner on various grounds. An Application under Section 16 (1) of the SRPO, was filed by the Respondent which after hearing was allowed to the extent, that the Petitioner was directed to pay the accumulated future rent [of the above premises] amounting to Rs.26,000/- (rupees twenty six thousand only) from January, 2019, onwards.

2024 M L D 1789

[Sindh]

Before Muhammad Saleem Jessar, J

Muhammad Ismail---Appellant

Versus

The STATE---Respondent

Criminal Bail Application No. 448 of 2024, decided on 24th May, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 496-A & 34---Enticing or taking away or detaining with criminal intent a woman, common intention---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Admittedly, the alleged victim girl was married wife of the applicant and later due to matrimonial issues, they got separated; however, she again joined the applicant by performing second Nikkah with him---Per FIR, alleged abductee had disappeared from Bazar (market) and later complainant came to know that she had been abducted by her previous husband i.e. the applicant---Applicant allegedly had taken away the victim by force and, against her will from Bazar but she did not even raise her voice nor made any hue and cry; even the relatives-cum-alleged witnesses who were allegedly accompanying her at the time of her disappearance from Bazar, had remained mum and no plausible explanation for remaining quiet and calm had been furnished by the prosecution---Alleged victim appeared before the Magistrate for recording her S.164 Cr.P.C statement---Nikahnama produced by the complainant revealed that the victim girl had not only signed it at the time of Nikah before the Nikah Registrar but she also put her Thumb Impression below the signature in presence of the witnesses mentioned in the Nikahnama---Said fact had not been denied by alleged abductee in her statement under S.164, Cr.P.C, nor she got dissolution of such Nikah/marriage by filing any suit before the Court of law having jurisdiction---Hence, Nikah between spouse i.e. the applicant and victim girl was in existence and was intact---Therefore, in view of factual-cum-legal position of record, case against applicant required further probe---Complainant got instant case registered with a delay of one day without furnishing any plausible explanation---Delay so occasioned in lodgment of FIR showed that it had been registered after due deliberation---Section 164 Cr.P.C statement of alleged victim was recorded at belated stage, hence, it could not be termed to be voluntarily rather it could be presumed to be under coercion---Offence with which applicant had been charged, carried maximum punishment of up to seven years, thus did not exceed limits of prohibitory clause of S.497(1), Cr.P.C.---Since the applicant and daughter of the complainant were husband and wife and Nikah solemnized/performed by them had not been dissolved, therefore, malafide on the part of prosecution due to previous grudge over matrimonial issues was in existence and showed malice on the part of prosecution---Therefore, basic ingredients for grant of pre-arrest bail were fully attracted in the case, which entitled the applicant for grant of anticipatory bail---Consequently, interim bail granted to applicant earlier was confirmed in circumstances.

Ghulam Abbas Abro v. The State 2018 PCr.LJ Note 168 and Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 rel.

Ghulam Murtaza for Applicant.

Shoaib Safdar, Assistant Prosecutor General, Sindh for the State.

Muhammad Nawaz for the Complainant.

Date of hearing: 24th May, 2024.

Order

Muhammad Saleem Jessar, J.---Through this application, applicant Muhammad Ismail seeks his admission on pre-arrest bail in Crime No. 32/2024 of Police Station Gulistan-e-Johar, Karachi, under Sections 496-A and 34 P.P.C. As reported, case has been challaned, which is now pending for trial before the Court of 7th Addl. Sessions Judge, Karachi (East). The applicant preferred his anticipatory bail before the Court of Sessions, which was assigned to 7th Addl. Sessions Judge, Karachi (East), who after hearing the parties, has turned down his request through order dated 17.02.2024. Hence, instant bail application has been maintained.

1. Since the facts of the prosecution case are already mentioned in the FIR, which is annexed with the Court file, therefore, there is no need to reproduce the same.

2. Learned counsel for the applicant submits that daughter of the complainant was married to the applicant and later due to matrimonial affairs, she got divorce by way of Khulla in terms of order dated 13.12.2023 passed by learned Family Judge, Karachi (East) vide Family Suit No.4434 of 2023; hence, in order to malign his reputation, he has maintained this FIR. Next submits that the offence with which applicant has been charged, carries maximum punishment up to seven years; hence, does not exceed limits of prohibitory clause of section 497 Cr.P.C; besides, case has been challaned which is also pending for trial before the Court having jurisdiction. In support of his contention, learned counsel places reliance upon the case of Ghulam Abbas Abro v. The State (2018 PCr.LJ Note 168) and prays for grant of bail.

3. Learned Addl. P.G, Sindh appearing for the State, though opposes the bail application; however, could not controvert the fact that maximum punishment provided by the law for the offence under Section 496-A P.P.C. is upto seven years; besides, the case has been challaned where accused has joined trial.

4. Learned counsel for the complainant files a copy of order dated 13.12.2023 along with decree, a copy of Nikahnama and copy of 164 Cr.P.C statement, under the cover of his statement dated 24.05.2024, taken on record. He submits that it was second marriage of the applicant with daughter of the complainant and at the time of second Nikkah, applicant had mentioned in the Nikkahnama to be virgin, though it was in his knowledge that she was already married to him before the divorce; hence, the applicant has not come with his clean hands, therefore, bail granted to the applicant may be recalled.

5. Heard arguments and perused record. Admittedly, the alleged victim girl Eram Yasmeen was married wife of the applicant and later due to matrimonial affairs, they got separation; however, she again joined with the applicant by performing second Nikkah with him. Per FIR, alleged abductee had disappeared from Bazar and later complainant came to know that she had been abducted by her previous husband i.e. the applicant. It is astonishing to note that applicant allegedly had taken away the victim by force and against her will from Bazar but she did not even raise her voice nor made any hue and cry, even the relatives-cum-alleged witnesses who were allegedly accompanying her at the time of her disappearance from Bazar, had remained mum and no plausible explanation for remaining quiet and calm has been furnished by the prosecution. Later, she entered into second Nikkah with the applicant by joining hands with the applicant as his wedded wife. On return to Karachi, alleged victim by taking chance had joined hands of her parents and then appeared before the Magistrate for recording her 164 Cr.P.C statement on 20.01.2024.

6. Since, the Nikkahnama produced by learned counsel for the complainant through statement dated 24.05.2024 reveals victim girl had not only signed it at the time of Nikkah before the Nikkah Registrar but she also put her RTI below the signature in presence of the witnesses mentioned in the Nikkahnama. This fact has not been denied by alleged abductee in her statement under Section 164 Cr.P.C nor she got dissolution of such Nikkah/marriage by filing any suit before the Court of law having jurisdiction. Hence, Nikkah between spouse i.e. the applicant and victim girl is still in existence and is intact. Therefore, in view of above factual-cum-legal position of record, case against applicant requires further probe.

2024 M L D 1829

[Sindh]

Before Muhammad Shafi Siddiqui and Omar Sial, JJ

Muhammad Yousuf Barakzai---Appellant

Versus

Ms. Gulnar and others---Respondents

High Court Appeal No. 281 of 2022, decided on 9th April, 2024.

Specific Relief Act (I of 1877)---

---- Ss. 42 & 54--- Limitation Act (IX of 1908), First Sched., Art. 91--- Suit for declaration and injunction--- Benami transaction--- Proof--- Limitation--- Parties were husband and wife and their relationship ended in a divorce--- Respondent / plaintiff claimed to be owner of suit property on the plea that she had purchased it from her own sources--- Suit filed by respondent / plaintiff was decreed in her favour by Trial Court--- Appellant / defendant contended that he was actual owner in possession of suit property and suit filed by respondent / plaintiff was barred by limitation---Validity---Entire chain of title documents and other related documents were in possession of appellant / defendant who was the actual seller of suit property--- Deal to sell suit property was also transacted between appellant / defendant and husband of the seller but for reasons known to them they both chose to have their respective spouses in the front--- Respondent / plaintiff might have been aware that appellant / defendant surreptitiously transferred the property in his name but the couple was happily married at the time of purchase--- Parties had a few children, both before and after the event---Respondent / plaintiff not insisting at that point in time to have the conveyance deed cancelled to the extent of 50% share was understandable--- It was when appellant / defendant denied her the right to access and enjoy the property that the cause of action arose--- Suit was not barred by limitation--- Suit property was bought by appellant / defendant from his own money, who was owner of the apartment whereas respondent / plaintiff was only shown as an ostensible owner in terms of sale agreement/power of attorney--- Appellant / defendant also bought another property with his funds and had the original title documents with him--- Respondent / plaintiff failed to produce meaningful evidence in support of her case--- Appeal was allowed, in circumstances.

Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577; Hamida Begum v. Murad Begum PLD 1975 SC 624 and Muhammad Ashraf Butt v. Muhammad Asif Bhatti PLD 2011 SC 905 rel.

Usman Tufail Shaikh and Ms. Binish for Appellant.

Respondent No. 1 in person.

Abdul Jaleel Zubedi A.A.G. for Respondents.

Dates of hearing: 16th February and 4th March, 2024.

Judgment

Omar Sial, J.---Gulnar Memon (the answering respondent in these proceedings and referred to as "Gulnar") and Yousuf Barakzai (the appellant herein and referred to as "Barakzai") married each other in 1982. The couple, for a period ranging 30 years, seems to have lived happily and produced six children. Unfortunately for the couple, good times ended in December 2011 when Barakzai divorced Gulnar.

1. The case originates from events while the couple was married. Barakzai was a government servant. In 2004, a gentleman identified as Lt. Col. (Retd.) Mohammad Zafar Iqbal wanted to sell an apartment allotted to him in an Askari Housing project on 06.04.1999 ("the apartment"). It has been explained to us by the counsel that property in that particular project could not be transferred but delegated through the power of attorney. No conveyance deed was executed. Zafar Iqbal executed a power of attorney in favour of Gulnar. This is the point where the dispute originates. Barakzai says that it was solely for logistical convenience that Zafar Iqbal transferred the apartment in Gulnar's name by executing a power of attorney on 01.03.2000. He says that he was the person who had identified the property and paid for the property. At trial, he proved that the entire chain of property documents was with him. He also produced a possession letter and several letters by Zafar Iqbal to the Army housing administration, mentioning that he had sold the property to Barakzai and that the record should be amended to reflect it.

2. Gulnar's grievance did not end with the buying of the Askari apartment. On 03.12.2004, Gulnar executed an Agreement to Sell with Amber Ansar, who agreed to buy the apartment from Gulnar for a total consideration of Rs. 5,250,000. The agreement to sell only records that Gulnar received Rs. 5 million, whereas the remaining Rs. 250,000 was to be paid when Gulnar appointed Amber Ansar as her attorney. The mode in which the payment was made was not recorded in the agreement although the record suggests that payment was made through pay orders. Gulnar, at trial, produced an agreement to sell that showed that Amber Ansar had purchased the property from Gulnar. The evidence led by Barakzai shows that the deal was transacted between Barakzai and Ansar Ahmed (Amber's husband), but for reasons known to them, they both chose to have their respective spouses as parties to the agreement to sell. It has been clarified in the agreement that the power of attorney would be executed in the name of Ansar Ahmed and not Amber Ansar.

3. Before the apartment was sold on 03.12.2004, Barakzai had already bought a house ("House No. 17/1" in DHA, Karachi) from Lt. Col. (Retd.) Naeem-ul-Haque through a duly registered Conveyance Deed on 30.11.2004. In the Suit, Gulnar claimed that she had given Barakzai Rs. 5 million to enable him to buy House No. 17/1. In her Suit, she sought cancellation of the Conveyance Deed to an extent of 50%, possession and injunction. In essence, Gulnar sought a declaration that her husband is the Benami co-owner (with a 50% share) in House No. 17/1.

4. We have heard Mr. Usman Shaikh, learned counsel appearing for Barakzai and have also heard Gulnar, who preferred to argue in person. Our observations and findings are as follows.

5. In order to facilitate reference, a chronology of events is as follows:

| | | | --- | --- | | DATE | EVENT | | 29.04.1982 | Gulnar and Barakzai married. | | 06.04.1999 | Allotment of apartment made to Lt. Col. Mohammad Zafar Iqbal. | | 01.03.2000 | Registered Power of attorney executed by the Colonel in favour of Gulnar. | | 30.11.2004 | Barakzai bought house from Lt. Col Naeem-ul-Haque through Conveyance Deed. | | 03.12.2004 | Gulnar agreed to sell the flat to Amber Ansar. | | 27.12.2011. | Barakzai divorced Gulnar. | | 29.06.2012 | Gulnar claims that she returned from Islamabad to Karachi and was denied access to House No. 17/1. | | 10.11.2012 | Suit No. 1534 of 2012 was filed. | | 10.11.2012 | Status quo order given by this Court. | | 15.11.2012. | Barakzai sold House No. 17/1 to Ayesha Khan through Conveyance Deed. |

1. To determine the parties' rights, we have sought guidance from the wisdom of their Lordships in Abdul Majeed and others v. Amir Muhammad and others (2005 SCMR 577). The Supreme Court held:

"Some of the criteria for determining the question of whether a transaction is a Benami transaction or not, among other things, the following factors are to be taken into consideration:-

(i) source of consideration;

(ii) from whose custody the original title deed and other documents came in evidence;

(iii) who is in possession of the suit property; and

(iv) motive for the Benami transaction.

It is also well-settled law the initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. However, it may be stated that the burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof is shifted from a plaintiff on a defendant and if he fails to discharge the burden of proof so shifted on him, the plaintiff shall succeed."

1. When queried about her sources of income that enabled her to invest a large amount of Rs. 5 million in House No. 17/1 purchased by Barakzai, Gulnar claimed that she had inherited some money at the death of her father, that she had been a teacher in a school; she had taken a loan from her family and friends and the Women Development Department of the Government of Sindh. At trial, she failed to bring any of her brothers and sisters to prove the inherited wealth. She produced no evidence from the school she taught in. She produced no evidence to prove that she took a loan or that she had earned income from the Women Development Department. While cross-examined at trial, Gulnar acknowledged that "it is correct that I have not annexed any document to show my source of earning." She further admitted that "it is correct that I have not annexed a single document, i.e. loan agreement, redemption deed, etc., along with my pleadings." She admitted that she could not give any evidence of her source of income - "It is correct to say that I have not given any detail about my source of income, gifts from my mother or any other monitory detail in my pleadings/affidavit in evidence to show my source of funds/income." No evidence was produced at trial to show that Gulnar had the money to buy 50% of House No. 17/1. Without giving clarity to her statements, it seems from the record that another source of income relied upon by Gulnar was the money acquired from the sale of the apartment. The evidence at trial, however, does not support her in this aspect either. The apartment was sold a few days after Barakzai had bought House No. 17/1. It is correct that Gulnar was the owner on paper of the apartment as Zafar Iqbal executed a power of attorney in her favour; however, the documents at trial reflected that Barakzai's assertion that he was the person who had bought and sold the apartment appears to be correct. Barakzai, at trial, produced the following documents: (i) The No Objection Certificate (undated but executed sometime in February 2000) issued by Zafar Iqbal and the other legal heirs with an interest in the property shows that the purchaser of the apartment was Barakzai. (ii) An affidavit sworn by Zafar Iqbal (undated but executed sometime in February 2000) records that the purchaser of the apartment was Barakzai. (iii) Agreement to Sell (undated but executed in February 2000) signed by both Zafar Iqbal and Barakzai shows that Zafar Iqbal entered into the agreement for the sale of the apartment with Barakzai and that Barakzai had paid Zafar the sale consideration of Rs. 2,080,000. (iv) Zafar Iqbal had executed a receipt for Rs. 2,080,000 confirming that he had received the amount from Barakzai. A copy of the pay order issued in favour of Zafar Iqbal was also produced at trial. (v) Zafar Iqbal wrote a letter to the Director General (Housing) G.H.Q. (again undated) requesting that the apartment be transferred to Barakzai. (vi) Possession Letter dated 24.02.2000 showing that Zafar Iqbal handed over the possession of the apartment to Barakzai.

2. On 03.12.2004, Gulnar executed an Agreement to Sell with Amber Ansar, who had agreed to buy the apartment from Gulnar for a total consideration of Rs. 5,250,000. The agreement to sell only records that Rs. 5 million had been received by Gulnar whereas the remaining Rs. 250,000 would be paid when Gulnar would appoint Amber Ansar as her attorney. The mode in which the payment was made was not recorded in the agreement. Amber Ansar was not summoned as a witness by Gulnar to corroborate and support her version. No reason was given for not summoning her. Even if this is taken a correct, it was Gulnar who received the amount for sale of apartment, how would that help her in establishing that House No.17/1 was purchased from her money is still a mystery.

3. Admittedly the entire chain of title documents and other related documents were in Barakzai's possession. Apart from the fact that the evidence shows that Barakzai was the actual buyer of the apartment, the evidence also reflects that the deal to sell the apartment was also transacted between Barakzai and Ansar (Amber's husband) but for reasons known to them they both chose to have their respective spouses in the front. As far as the documents connected with the apartment were concerned, Gulnar acknowledged at trial that "It is correct that my ex-husband had produced/attached all documents from Zafar Iqbal with his affidavit-in-evidence." Gulnar in her cross-examination contended that "It is correct to say that I was not in possession of the original title documents." but justified her not being in possession of the documents by stating that the documents were lying in a cupboard at home and that as she had been denied entry into House No. 17/1, she could not produce them. We find this assertion hard to believe keeping in view the fact that according to Gulnar herself, she continued to live in House No. 17/1 for a period of four months after her divorce. The relationship had gone sour and surely an intelligent lady like Gulnar would have the presence of mind to secure the documents to the property she claimed was half hers.

4. The evidence reflects that Barakzai at all times was in possession of House No. 17/1. Gulnar also shared possession with him during the period the couple was married however while Gulnar's possession was taken away after the divorce, Barakzai continued to be in possession.

5. What was the motive for the benami transaction? The parties obviously differ on this count. According to Gulnar, her husband was a "corrupt person" and he was "fond of keeping cars in the names of his friends." She took pains at trial to highlight her former husband's corruption. It is ironical that Gulnar overlooked Barakzai's alleged "corruption" for the thirty odd years that she was married to him but after divorce did not mince her words to malign him. Be that as it may, Gulnar's depiction of her husband in itself would provide reason for Barakzai to buy the apartment in Gulnar's name.

6. Gulnar admitted at trial that initially (when she had written a letter to the Honorable Chief Justice of Pakistan of the time) her claim was that Barakzai had "sworn and pledged" that he would transfer a house and a car in her name and that she had "demanded" only these two items of him. There was no mention of she selling her apartment to pay for House No. 17/1. She however put all the blame of each lapse on her previous advocate.

7. The only other witness, apart from herself, that Gulnar produced at trial was her daughter Laila-tul-Qadir. The young lady's testimony did not help Gulnar. On the contrary the young lady stated "I do not know details of my mother's financial status nor I know where transactions were made as I am not associated with my mother. Agha Saeed is my Khaloo. My mother did not obtain any loan from Agha Saeed." Agha Saeed was the person through whose account she said she had contributed Rs. 5 million for the house (House No.17/1). Upon the court's query as to why she had not summoned Agha Saeed or his wife (Gulnar's sister) as a witness, she said that Agha Saeed's health did not keep well and her sister had declined to appear as witness. As mentioned above, Gulnar also did not summon Amber Ansar (the lady to whom she claimed to have sold the apartment). No other witness was summoned by her to support or corroborate any claim or assertion of hers. In such a situation the presumption under Article 129 (illustration g) of the Qanun-e-Shahadat Order, 1984 would arise that had the above mentioned individuals come to trial they would not have supported Gulnar's stance.

8. Before concluding, we deem it appropriate to address certain other issues. It was argued by counsel that the suit is barred by limitation. He argued that Barakzai purchased the new house on 30.11.2004. Gulnar was admittedly aware at that point in time that Barakzai had bought House No.17/1 in his name, yet, it was not until 10.11.2012, that Gulnar filed the Suit.

9. Learned counsel is correct that the Suit was filed approximately eight years after the new house was purchased. We are however unable to agree with the learned counsel that the Suit was barred by limitation. The crucial date in this regard is the date upon which Gulnar was denied entry into the new house by Barakzai's watchman. This date was 29.06.2012. Article 91 of the Schedule to the Limitation Act prescribes a 3 year limitation period from the date "when the facts entitling the plaintiff to have the instrument cancelled or set aside, become known to him." It has been held in Hamida Begum v. Murad Begum (PLD 1975 SC 624) that "It follows, therefore, that the starting point of limitation under this Article [91] is the date when the plaintiff acquires knowledge of facts which give him a cause of action and entitle him to have the instrument cancelled or set aside; mere knowledge of facts bearing on the true character of the instrument is not enough." While Gulnar may have been aware that Barakzai has surreptitiously transferred the property in his name. It must be kept in mind that the couple was happily married at the time of the purchase. They had a few children, both before and after the event. Gulnar not insisting at that point in time to have the conveyance deed cancelled to the extent of 50% share is understandable. It was when she was denied the right to access and enjoy the property that the cause of action arose. The Suit in our opinion was not barred by limitation.

10. A prudent mind can gauge from the record as to what probably happened in the relationship of the parties. Gulnar remained married to Barakzai and the couple had six children. Barakzai's conduct while being a government servant, in attempting to prima facie conceal his wealth by documenting it in his wife's name, cannot be condoned. It can also not be forgotten that Barakzai sold House No. 17/1 in violation of a stay order of this court. So far as this issue is concerned the same is governed by the doctrine of lis pendens as enshrined in Section 52 of the Transfer of Property Act, 1882. The doctrine stands for the principle that any subsequent conveyance during the pendency of a case, though valid, would be subservient to the rights of the contesting parties. Hence should Gulnar have succeeded in her claim, the bona fide purchaser would have been "bound by the result of the suit stricto sensu in all respects as his transferor would be bound...[for the] transferee...does not acquire any legal title free from the clog of his unsuccessful transferor in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest.". Muhammad Ashraf Butt v. Muhammad Asif Bhatti (PLD 2011 SC 905). However, since Gulnar has failed to succeed on merits, the said principle has no application to the instant case.

2024 M L D 1848

[Sindh (Sukkur Bench)]

Before Arbab Ali Hakro, J

Anwar Ali and another---Applicants

Versus

The State---Respondent

Criminal Bail Applications Nos. S-918 of 2023 and S-95 of 2024, decided on 23rd April, 2024.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-i-amd, common intention---Ad-interim pre-arrest bail, recalling of---Accused were charged that they in furtherance of common intention, committed murder of the nephew of the complainant---Record revealed that both the applicants were nominated in the FIR. with the specific role of causing injuries with a cleaver and hatchet on the back of the head of deceased---Prosecution witnesses in their statements recorded under Section 161, Cr.P.C., had supported the version of the complainant---Parties were known to each other, therefore, identification of the culprits by the complainant party in the light of a torch could not be doubted at present stage where only tentative assessment of the material was to be made--Prima facie, the factum and place of injuries disclosed by the complainant and witnesses were supported by medical evidence---Number or kind of weapon used for causing such injuries could only be decided at the trial stage---Record showed that prima facie the delay in reporting the matter had been explained by the complainant in that they first took the injured to the hospital where they were busy in his treatment---Complainant party was firstly supposed to save life of injured and not rush for registration of FIR---As far as grant of bail to co-accused was concerned, he was not named in the FIR but was only shown as an unknown culprit who had a pistol in his hand; however, he did not use the same at the time of the incident nor caused any injury to the deceased---Present applicants prima facie caused fatal blows to the deceased; therefore, their case was distinguishable from that of co-accused---Anticipatory bail under Section 498, Cr.P.C., being extraordinary relief, is granted on extraordinary grounds---Pre-arrest bail should not be allowed in routine matters---Applicants, had been nominated in the FIR with a specific and clear role in the commission of the crime and the crime weapon was yet to be recovered---At the stage of bail and before recording evidence in the Trial Court, only tentative assessments are to be made for the purpose of deciding bail applications and it is not permissible to go into the details of evidence one way or the other because that may prejudice the case of one party or the other---Prima facie sufficient evidence was available against the applicants to connect them with the commission of alleged offence, carrying punishment for death or imprisonment for life---Pre-requisites for such concession, i.e. malice and ulterior motive, either on the part of the complainant or the police, were conspicuously missing in the case---Accordingly, both the bail applications were dismissed and the orders for granting ad-interim pre-arrest bail orders were recalled, in circumstances.

2021 SCMR 130; 2011 SCMR 1392; 2023 SCMR 364; 2003 SCMR 68 and 2023 YLR 1582 ref.

Mumtaz v. The State 2012 SCMR 556; Muhammad Akbar v. The State 1972 SCMR 335 and Ghulam Farooq Channa v. Special Judge A.C.E (Central-I) Karachi PLD 2020 SC 293 rel.

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

----Ss. 497 & 498---Bail---Observations made by Courts---Scope---Observations made by Courts in bail orders are tentative in nature and should not influence the Trial Court while deciding the case of accused on merits.

Atta Hussain Chandio for Applicants.

Irshad Hussain Dharejo for the Complainant.

Imran Mobeen Khan, Assistant Prosecutor General for the State.

Date of hearing: 23rd April, 2024.

Order

Arbab Ali Hakro, J.---By this common order, I intend to dispose of both above-listed bail applications, as the same being arisen out of the same crime, viz. FIR. No. 90 of 2023, registered at Police Station Kumb, District Khairpur, under Sections 302, 34 P.P.C., have been heard together.

1. Through Criminal Bail Application No. S-918 of 2023, applicant Anwar Ali son of Wahid Bux Chakrani and by means of Criminal Bail Application No.S-95 of 2024, applicant Muhammad Sachal alias Sacho have sought pre-arrest bail in afore-mentioned Crime/FIR. Their earlier applications for grant of pre-arrest bail were heard and dismissed by the Addl. Sessions Judge-I/ MCTC, Khairpur. They were admitted to ad-interim bail by this Court; now, the applications are fixed for confirmation of their bail or otherwise.

2. Briefly stated facts of the prosecution case are that on 15.05.2023, complainant Adam Ali lodged the afore-mentioned FIR., alleging that Zafar Ali, son of Shahbaz Dino, was his nephew. Accused Sachal alias Sacho Chakrani and others were annoyed with him and used to say that since he prevents them from coming and going on the way, they will teach him a lesson in the future. On the day of the incident, i.e. 13.05.2023, the complainant was available at the house of his nephew Zafar Ali. At the time, the complainant, Zafar Ali, Zafar's wife Mst. Abida and other members were present. Zafar Ali stepped outside while talking on his mobile phone. After a while, they heard cries of nephew on which the complainant and Mst. Abida grabbed torch lights and rushed outside. It was 2100 hours when they saw on the torch lights that Sachal Chakrani had a cleaver, Anwar Ali was carrying a hatchet, and 02 unidentified persons duly armed with pistols were present. The unidentified culprits caught hold of Zafar Ali while accused Sachal and Anwar Ali Chakrani caused cleaver, and hatchet blows to him on his head. The complainant party raised cries and went towards the accused, and upon seeing them, the accused fled to their house. The complainant found that Zafar Ali had sustained an injury on the back of his head and was bleeding. The complainant party arranged transportation and brought the injured Zafar Ali to GIMS Hospital, Gambat. After leaving the injured under treatment, the complainant went to the Police Station and formally lodged an FIR of the incident, which was initially registered under Section 324 P.P.C.

3. After registration of FIR, the police issued a letter for medical treatment to the injured. However, he succumbed to his injuries on 17-05-2023. Postmortem of the deceased was conducted, and the dead body was taken by the relatives for the funeral ceremony. After the death of injured Zafar Ali, Section 302 P.P.C. was added in the case.

4. Learned counsel for the applicants has contended that they are innocent and have been falsely implicated in the case by the complainant with mala fide intentions and ulterior motives. He further argues that there is a delay of 02 days in registration of FIR, which has not been adequately explained by the complainant. Hence, the deliberation and consultation on the part of the complainant cannot be ruled out. He also contended that the applicants have falsely been implicated at the instance of Nazeer Hussain Chakrani due to enmity, which is admitted in the FIR. He further claimed that all the P.W.s are close relatives of the complainant and they are highly interested. He also argued that on completion of the investigation, applicant Anwar was let off by the I/O by placing his name in column No.2 of the charge sheet. However, the learned Magistrate did not accept the report and took cognizance against all the accused. He also contended that there is an inconsistency between the medical and ocular evidence, as according to the contents of the FIR, the accused Anwar and Sachal have caused cleaver and hatchet blows to the deceased. However, the postmortem report of the deceased mentions only a single injury. Per learned counsel in view of above inconsistency and the background of previous enmity between the parties, false implication of applicant cannot be ruled out, and his case calls for further enquiry as envisaged by subsection (2) of Section 497 Cr.P.C. Lastly, he prayed for confirmation of interim pre-arrest bail already granted to applicants. In support of his contentions, learned counsel relied upon the 2021 SCMR 130, 2011 SCMR 1392 and 2023 SCMR 364.

5. On the other hand, learned A.P.G. and learned counsel for the complainant have vehemently opposed these applications on the grounds that applicants are nominated in the FIR with a specific role, that the applicants in prosecution of their common intention committed the murder of nephew of complainant namely Zafar Ali by causing him injuries; that the alleged offence falls within the prohibitory clause of section 497, Cr.P.C. In the last, they prayed that interim bail granted to the applicants may be recalled. In support of their contention, they relied upon 2009 PLD 427(sic), 2003 SCMR 68 and 2023 YLR 1582.

6. I have considered the arguments advanced by learned counsel for the respective parties and, with their assistance, reviewed the material available on the record.

7. The record reveals that both the applicants are nominated in the FIR with the specific role of causing injuries with a cleaver and hatchet on the back of the head of deceased Zafar Ali. The P.Ws, in their statements recorded under section 161 Cr.P.C., have supported the version of the complainant. The parties were known to each other; therefore, identity of the culprits by the complainant party in the light of a torch cannot be doubted at this stage where only tentative assessment of the material is to be made. The medical certificate shows that one lacerated wound of 14cm was seen at the parietal occipital of the head besides fracture of skull bones. The main contention of learned counsel for the applicants that the ocular version does not get support from medical evidence cannot be appreciated at this stage as it requires deeper appreciation of evidence which as per settled law is un-warranted at the bail stage. Prima facie, the factum and place of injuries disclosed by the complainant and witnesses are supported by medical evidence. Any question over number or kind of weapon used for causing such injuries can only be decided at the trial stage. Reference in this respect is made to the case of Mumtaz v. State (2012 SCMR 556) wherein the Supreme Court of Pakistan has observed as under follows;-

"…the argument qua the conflict between medical evidence and the ocular account cannot be appreciated without a deeper appraisal of evidence which is not warranted at bail stage."

1. So far as the delay in lodging the FIR is concerned, record shows that prima facie the delay has been explained by the complainant in that they first took the injured to the Hospital where they were busy in treatment. The complainant party was firstly supposed to save life of injured and not to rush for registration of FIR. As far as grant of bail to co-accused Saqib Ali is concerned, he was not named in the FIR but is only shown as an unknown culprit who had a pistol in his hand; however, he did not use the same at the time of the incident nor caused any injury to the deceased. It was the present applicants who prima facie caused fatal blows to the deceased; therefore, their case is distinguishable from that of co-accused Saqib Ali. As far as contention of the learned counsel that during course of the investigation, the name of applicant Anwar Ali was placed in column No.2 of the challan is concerned, it may be said that opinion of I.O., to let off any accused is not binding on the court, and it can take cognizance of offence against such accused and decide his case on merits. It is a well-settled exposition of law that the Courts are not bound by the ipse dixit of police; the Court is empowered to formulate its own opinion in light of the evidence available on record. After considering all the facts and circumstances, the concerned Magistrate declined to accept the report and took cognizance against applicant Anwar Ali. In the case of Muhammad Akbar v. State (1972 SCMR 335), it has been observed by the Supreme Court of Pakistan that;

"Even on the first report alleged to have been submitted under section 173, Cr.P.C., the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cognizance, if upon the materials before him he found that a prima facie case was made out against the accused persons. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of section 190(i)(b) of the Code of Criminal Procedure. This view finds support from a decision of this Court in the case of Falak Sher v. State (PLD 1967 SC-425)."

1. The powers available to the Court under Section 498, Cr.P.C. are discretionary and must be exhausted with care and caution, especially in cases of a heinous offence involving the death penalty, imprisonment for life or imprisonment for ten years. The Court has to exercise the power judicially and not arbitrarily. The anticipatory bail under Section 498, Cr.P.C. being extraordinary relief, is granted on extraordinary grounds. It is a settled principle of criminal law that pre-arrest bail should not be allowed in routine matters. The applicants have been nominated in the FIR with a specific and clear role in the commission of the crime, and the crime weapon is yet to be recovered. The Honorable Supreme Court of Pakistan in case Ghulam Farooq Channa v. Special Judge A.C.E. (Central-I) Karachi PLD 2020 SC 293 has held as follows:

"4. Grant of bail to an accused required in a cognizable and non-bailable offence prior to his arrest is an extraordinary judicial intervention in an ongoing or imminent investigative process. It clogs the very mechanics of State authority to investigate and prosecute violations of law designated as crimes. To prevent arrest of an accused where it is so required by law is a measure with far reaching consequences that may include loss or disappearance of evidence. The Statute does not contemplate such a remedy and it was judicially advented way back in the year 1949 in the case of Hidayat Ullah Khan v. The Crown (PLD 1949 Lahore 21) with purposes sacrosanct and noble, essentially to provide judicial refuge to the innocent and the vulnerable from the rigors of abuse of process of law; to protect human dignity and honour from the humiliation of arrest intended for designs sinister and oblique. The remedy oriented in equity cannot be invoked in every run of the mill criminal case, prima facie supported by material and evidence, constituting a non-bailable/cognizable offence, warranting arrest, an inherent attribute of the dynamics of Criminal Justice System with a deterrent impact; it is certainly not a substitute for post arrest bail."

2024 M L D 1859

[Sindh]

Before Muhammad Shafi Siddiqui and Ms. Sana Akram Minhas, JJ

Government of Sindh through Secretary Transport and Mass Transit Department, Sindh---Petitioner

Versus

The Additional District and Sessions Judge and 2 others---Respondents

Constitution Petition No. D-532 of 2022, decided on 23rd May, 2024.

Fatal Accidents Act (XIII of 1855)---

----S.1---Constitution of Pakistan, Art.199---Compensation----Interest on decretal amount---Jurisdiction of High Court---Scope---Respondents/decree holders (beneficiaries) instituted a suit for damages and compensation on account of fatal accident, which was decreed ex parte in favour of beneficiaries---Decretal amount was deposited with the State Bank of Pakistan, but was not released to the beneficiaries---Penal interest was claimed by the beneficiaries for not releasing the decretal amount with interest---Contention of the petitioner was that since the amount had been deposited with the Court, therefore, beneficiaries could not claim penal interest---Validity---High Court held that Government of Sindh was objecting to the release of the amount even at that point in time when they preferred second appeal---There was no doubt that whatever the accrued amount would have been, it was to be disbursed amongst the legal heirs but as long as the amount was not paid and realized by the beneficiaries, the judgment and decree could not be deemed to have been satisfied and the amount of interest would continue to accumulate, and deposit alone at a belated stage was not enough to discharge the judgment-debtor from the claim of interest piled up during the period it was not released to the beneficiaries---High Court repelled the contention of the petitioner that it was on account of Court's error that the amount was not released as it was always objected to by the Government of Sindh, hence, the petitioner was under an obligation to pay the interest till it was completely realized by the beneficiaries and/or the decree was satisfied---Judgment and decree was not challenged before an appellate forum as no material was placed before the High Court, therefore, the interest would continue to pile up till its realization---By payment of additional amount for the unaccounted period and release of it to the beneficiaries, the decree had been satisfied---High Court was exercising jurisdiction under Art.199 of the Constitution and thus could not probe further as the challenge in this appeal was neither an order which was unconstitutional nor any jurisdictional error was exposed in the exercise conducted by two forums below, thus, on this score also present petition lacked the ingredients that could enable the High Court to interfere with the orders of the executing Court in respect of the amount, which had already been released to the beneficiaries---Constitutional petition was dismissed accordingly.

Abdul Jaleel Zubedi, Assistant Advocate General for Petitioner.

Respondent No. 3 in person.

Date of hearing: 23rd May, 2024.

Judgment

Muhammad Shafi Siddiqui, J.---This Constitution Petition filed on 28.01.2022, impugns not only the judgment and decree dated 25.11.2009 in Suit No.456 of 2003 (Old Suit No.519 of 1989) but also orders passed by the executing Court in Execution No.18 of 2011 dated 22.10.2021 and by appellate Court in Revision Application No.4 of 2022 dated 19.01.2022 respectively.

1. We have heard learned Assistant Advocate General appearing for the petitioner and perused the material available on record whereas respondent No.3 has appeared in person and has also assisted us.

2. Record reflects that a suit to claim compensation on account of fatal accident under Fatal Accidents Act, 1855 was filed on 23.02.1989 which was decreed. There is no record available nor is that a case of the petitioner that this judgment and decree was challenged before any appellate forum prior to filing of this petition. We cannot upset the judgment and decree in Writ Petition as prayed in the petition.

3. Record further reveals that second execution application was filed as Execution Application No.18 of 2011, no objection to this was raised.

4. It is pertinent to mention here that the order impugned in this petition is in fact of revisional Court and perusal of it reflects that the same was dismissed solely on the ground that the respondent had died and no revision is maintainable against a dead person. Learned Assistant Advocate General however has mainly assailed the claim of interest as calculated in compliance of decree. The reasoning may not be ideal to maintain the executing Court's order, however we have heard the learned Assistant Advocate General at length.

5. The suit was decreed as prayed i.e. in the sum of Rs.2 Million as principal amount and 15% per annum as interest thereon "from the date of filing of the suit till its realization". The suit was filed on 23.02.1989 and thus the interest amount would continue to pile up till its realization by the beneficiaries i.e. deceased's legal heirs. It is petitioner's case that an amount of Rs.8.6 Million approximately was matured in the year 2011 as adjudged by then, but was not paid. Vide order dated 12.07.2013 the executing Court then issued an order to the State Bank of Pakistan to attach the amount to the extent of decree, in the Account No.II (Food) and Account No.I (Non-Food), Government of Sindh, lying with the Director (Accounts), Central Directorate, State Bank of Pakistan, I.I. Chundrigar Road, Karachi, as the appellants despite decree were not willing to comply it. This was not materialized up until 07.07.2014 when the executing Court was pleased to attach the amount of 8.625 Million by an order, again.

6. Yet again the petitioner was not inclined to pay the aforesaid amount and a Second Appeal No.87 of 2016 was filed. The petitioner at that point in time as well was not willing to pay the amount and was eager to contest it in the second appeal without a challenge to the judgment and decree. The legal heirs of the deceased realized and submitted that they would contest the appeal and for the satisfaction of Court to have the amount at Court's disposal submitted that they would not withdraw the amount as the release was objected to by the petitioner and will be subject to decision. Order dated 26.09.2016 in this regard was clear. The amount was deposited by a debit voucher of the State Bank of Pakistan dated 16.09.2016 which is available along with statement filed in this petition on 12.03.2024.

7. This 8.6 million amount was calculated at the relevant time i.e. 2011 which was not paid hence it cannot be deemed to have been realized by the beneficiaries. It seems that after some time the amount of Rs.8.6 Million, as deposited was released to the legal heirs. One of the legal heirs was not shown, who then filed an application for the left over amount (2011-2021's interest), which was not adjudged to be recoverable by the Executing Court. A statement was then filed by the respondent No.3 as to the outstanding amount of Rs.2.9 Million, which was then deposited and released to respondent No.3.

2024 M L D 1927

[Sindh]

Before Yousuf Ali Sayeed and Mohammad Abdur Rahman, JJ

Allah Bux Brohi---Petitioner

Versus

Government of Sindh through Secretary Minerals Development Department and others---Respondents

C.P. No. D-6136 of 2021, decided on 28th August, 2023.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Principle of natural justice---Violation---Government contracts, participation in---Blacklisting--- Non-issuance of show cause notice--- Effect--- Petitioner was aggrieved of letterissued by authorities blacklisting him from participating in government contracts--- Validity--- There was no show cause notice issued for a hearing on allegations that were levelled against petitioner in respect of falsely procuring Solvency Certificate---Petitioner was deprived of a right of hearing on the allegations--- It was mandatory for authorities while issuing letter to petitioner to have acted in accordance with rules of natural justice but this was not done--- High Court set aside letter issued by authorities as the same had been issued in violation of principles of natural justice--- Constitutional petition was allowed, in circumstances.

New Jubilee Insurance Company Ltd. Karachi v. National Bank of Pakistan PLD 1989 SC 1126; M.A. Aleem Khan and Sons (Pvt.) Ltd. v. Province of Punjab and others PLD 2006 Lah. 84; Rehim Khan v. Divisional Superintendent Pakistan Railways Rawalpindi 2003 YLR 63; Zulfiqar Ali v. Divisional Superintendent (Workshops) Pakistan Railways (Moghalpura), Lahore another PLD 2001 Lah. 13; Nizami Construction Company through Sole Proprietor v. Chief Executive Officer, Gujranwala Electricity Supply Company (GEPCO) and 2 others 2005 CLC 366; Messrs Fast Tracks through Sole Proprietor v. Federation Investigation Agency 2021 CLC 1160; M.A. Aleem Khan and Sons (Pvt.) Ltd. v. Province of Punjab and others PLD 2006 Lah. 84; Adam Sugar Mills Limited v. Federation of Pakistan 2012 CLC 1780 and Humeria Imran through Attorney v. Government of Pakistan, Ministry of Defence and Production PLD 2019 Sindh 467 ref.

Aftab Ahmed Memon for the Petitioner.

Asad Iftikhar Assistant Advocate General, Sindh for Respondent No. 1.

Naseer Ahmed Leghari, Law Officer for Respondents Nos. 2, 3 and 4.

Muhammad Yasir for Respondent No. 5.

Date of hearing: 30th May, 2023.

Judgment

Mohammad Abdur Rahman, J.---This Petition has been maintained by the Petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 against a letter dated 9 August 2021 issued by the Respondent No. 2, "Blacklisting" the Petitioner from participating in Government Contracts for a period of one year.

1. The facts giving rise to this Petition are that the Petitioner participated in a Public Auction regarding the auction of Royalty Rights on Surface Minerals, Marble and Silica Sand in District Thatta Areas for the year 2019-2020 conferring on him the right to collect excise duty on specified minerals on behalf of the Mines Labour Welfare Organization. The bid made by the Petitioner was successful and by an order dated 25 July 2019 issued by the Assistant Commissioner Mines Labour Welfare Sindh, he was awarded that right.

2. It is not known as to what had happened for the period 2020-2021 but for the period 2021-2022, a Public Auction Notice was issued on 28 May 2021, stating therein that an auction would be held on 14 June 2021 of the Royalty Rights on Surface Minerals, Marble and Silica Sand in District Thatta Areas for the year 2020-2021 to collect excise duty on specified minerals on behalf of the Mines Labour Welfare Organization. The auction was by a corrigendum issued on 11 June 2022 adjusted to being held on 18 June 2021 and by a further two corrigendum's dated 21 June 2021 and 23 June 202 adjusted to be held on 30 June 2021.

3. On 30 June 2021, the auction was held and whereat there was, according to the Petitioner, some irregularity with the manner in which the Respondent No. 5 made his bid. The Petitioner had contended that the Respondent No. 5 bid was actually a fraudulent bid and which he believed would not be honoured by the Respondent No. 5. Thereafter, it seems that the Respondent No. 5 instead of honouring his bid, preferred to institute Constitution Petition No.D-4724 of 2021 before this Court asking for a substantially reduced bid to be accepted by the Respondent No. 2. The Petitioner made an application in that Petition to intervene and where after the Court on 9 August 2021 proceeded to hold:

" … Learned Addl. Advocate General have not been able to explain the mechanism adopted by the respondents for the public auction for the purposes of collection of excise duty on mines and minerals in District Thatta, therefore, we would direct the respondent to file detailed comments in this regard along with relevant rules. In the meanwhile, let the re-auction proceeding may take place, whereas, the petitioner and all the eligible parties may be allowed to participate in the said proceedings in accordance with law. However, the proceedings shall not be finalized and will be subject to further orders of this Court."

1. The reauction was also held on 9 August 2021, however the Petitioner states that for reasons that were not known to him at that time, he was not permitted to participate in those proceedings. It seems that, unknown to the Petitioner, an inquiry had been initiated and pursuant to which the office of the Mukhtiarkar (Revenue) Taluka and District Thatta had issued a letter dated 28 July 2023 disputing the issuance of a Solvency Certificate bearing No. TTA/427 dated 19 July 2021 for a sum of Rs.200,000,000/- (Rupees Two Hundred Million) (hereinafter referred to as the "Solvency Certificate") that he stated had not been issued by that office in favour of the Petitioner.

2. This Letter was forwarded by the Director (Admin and Finance) Mines and Mineral Development to the Deputy Commissioner, District Thatta on 30 July 2021 and which apparently found its way to the Director (Admin and Finance) Chairman of Auction Committee Mines and Mineral Development. By a letter dated 9 August 2021 (hereinafter referred to as the "Impugned Letter") issued to the Petitioner the Director (Admin and Finance) Chairman of Auction Committee Mines and Mineral Development "blacklisted" the Petitioner for a period of one year from participating in government contracts alleging that the Solvency Certificate had been fraudulently submitted by the Petitioner.

3. It is apparent that the letter being issued on 9 August 2021, the period for which the Petitioner had been blacklisted having at the time of the hearing of this Petition already lapsed and as the Petitioner was being permitted to participate in government contracts why this Petition should not be treated as having become infructuous. The Petitioner however submitted that there being a stigma as against his name, he continued to wish to press the Petition seeking to set aside the Impugned Notice.

4. The Petitioner contended that the process of backlisting of a contractor was at present governed by the Blacklisting of Bidders, Contractors, Supplies and Consultants Regulations, 2023. However, as these Regulations had not been notified at the time when the Petitioner had been blacklisted, they would not be applicable to adjudicate on his rights as were in existence at that time. He submitted that, the Impugned Letter had been issued in violation of the fundamental rights of the Petitioner as contained in Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973 and also in violation of the rules of Natural Justice in as much as not even a show cause notice was issued to him prior to blacklisting him, let alone him being afforded a hearing. He relied on a decision of the Supreme Court of Pakistan reported as New Jubilee Insurance Company Ltd. Karachi v. National Bank of Pakistan, Karachi1 and a decision of the Lahore High Court, Lahore reported as M.A. Aleem Khan and Sons (Pvt.) Ltd. v. Province of Punjab etc2 to advance the proposition that the illegal blacklisting of a firm is a violation of the fundamental rights of the Petitioner as contained in Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973. To advance a proposition that an order blacklisting a contractor without following the rules of natural justice was illegal he relied on the decisions reported as Rehim Khan v. Divisional Superintendent Pakistan Railways Rawalpindi,3 Zulfiqar Ali v. Divisional Superintendent (Workshops) Pakistan Railways (Moghalpura), Lahore another,4 Nizami Construction Company through Sole Proprietor v. Chief Executive Officer, Gujranwala Electricity Supply Company (GEPCO) and 2 others,5 Messrs Fast Tracks through Sole Proprietor v. Federal Investigation Agency,6 and M.A. Aleem Khan and Sons (Pvt.) Ltd. v. Province of Punjab etc.7 He then relied on a judgement of a Division Bench of this Court reported as Adam Sugar Mills Limited v. Federation of Pakistan8 and a decision reported as Humeria Imran through Attorney v. Government of Pakistan, Ministry of Defence and Production9 wherein the earlier decision was followed to state that in matters pertaining to the blacklisting of a person as a contractor the remedies prescribed under Rule 48 of the Public Procurement Rules, 2004 that provided a redressal committee to address such an issue could not be considered as an alternate efficacious remedy to redress such a grievance.

5. Mr. Asad Iftikhar, the Assistant Advocate General Sindh addressed arguments on behalf of the Province of Sindh and stated that this Petition was not maintainable as the Petitioner had an alternate efficacious remedy which he had not availed. He submitted the process of blacklisting was done pursuant to Rule 35 of the Sindh Public Procurement Rules 2010 by submitting a false Solvency Certificate an as such the conduct of the Petitioner fell within the purview of clause (b) of Sub-Rule (1) of Rule, 35 of the Sindh Public Procurement Rules, 2010 and was clearly a "fraudulent" act. He clarified that under Sub-Rule (2) of Rule 35 of the Sindh Public Procurement Rules, 2010, the procuring agency could on its own initiative carry out an investigation to consider whether to blacklist a contractor and if blacklisted, a contractor would thereafter have the right to submit an appeal to the Authority under Sub-Rule (4) of Rule 35 of the Sindh Public Procurement Rules, 2010 and which Authority would refer the matter to a review committee constituted under Sub-Rule (8) to (15) of Rule 31 of the Sindh Public Procurement Rules, 2010. He concluded by stating that as the Petitioner had never filed any appeal with the Authority and had directly filed this Petition before this Court, the Petition was not maintainable. The Law Officers for the Respondents Nos. 2, 3 and 4 and the Counsel for the Respondent No. 5 each adopted the arguments raised by the Assistant Advocate General Sindh and prayed for the dismissal of the Petition.

6. We have heard the Counsel for the Petitioner, the Assistant Advocate General Sindh, the Law Officers of the Respondents Nos. 2, 3 and 4 and the Counsel for the Respondent No. 5 and have perused the record. The right of a procuring agency to blacklist a contractor is contained in Rule 35 of the Sindh Public Procurement Rules, 2010 and which reads as under:

" … 35. Blacklisting of Suppliers, Contractors and Consultants

(1) The following shall result in blacklisting of suppliers, contractors, or consultants, individually or collectively as part of consortium:

(a) conviction for fraud, corruption, criminal misappropriation, theft, forgery, bribery or any other criminal offence;

(b) involvement in corrupt and fraudulent practices while obtaining or attempting to obtain a procurement contract;

(c) final decision by a court or tribunal of competent jurisdiction that the contractor or supplier is guilty of tax evasion;

(d) willful failure to perform in accordance with the terms of one or more than one contract;

(e) failure to remedy underperforming contracts, as identified by the procuring agency, where underperforming is due to the fault of the contractor, supplier or consultant;

(2) Procuring agency may, on its own motion, or information provided by any party, carry out an investigation to determine, whether there is sufficient cause for blacklisting a contractor, consultant or supplier. If the procuring agency is satisfied that such a cause exists, it shall initiate the process of blacklisting in accordance with the procedure laid down in regulations to be issued by the Authority;

(3) As a result of the scrutiny process, as mentioned above in sub-rule (2), the procuring agency may take one of the following decisions;

(a) contractor or consultant or supplier may be blacklisted;

(b) contractor or consultant or supplier may be debarred temporarily, specifying the time period;

(c) contractor or consultant or supplier may be blacklisted if he fails to take the specified remedial actions within a specified time period;

Provided that the procuring agency shall duly publicize and communicate its decision to the Authority, other Government departments, and also hoist on its own website.

(4) Any party being aggrieved by the decision of the procuring agency may submit an appeal to the Authority, which shall refer the matter to the review panel, as provided in Rule 31, sub-rules (8) to (15);

(5) Chief Secretary on the basis of recommendations furnished by the review panel, may confirm, overrule or modify any decision taken by the procuring agency

(Emphasis is added)

It is an admitted fact that on 9 August 2021 when the Impugned Letter was issued, the Blacklisting of Bidders, Contractors, Supplies and Consultants Regulations, 2023 had not been notified. As such, the Procuring Agency could not, at that time, have initiated "the process of blacklisting in accordance with the procedure laid down in regulations to be issued by the Authority" as admittedly at that time no regulations had been notified. There being no regulations that had been framed the Procuring Agency could not have acted under the provisions of Sub-Rule (2) of Rule 35 of the Sindh Public Procurement Rules, 2010 to initiate the process to blacklist the Petitioner or pursuant thereto to give a decision under Sub-Rule (3) of Rule 35 of the Sindh Public Procurement Rules, 2010. Correspondingly, the right of review that was available under Sub-Rule (4) of Rule 35 of the Sindh Public Procurement Rules, 2010 could also not have therefore been invoked by the Petitioner as against the decision in Sub-Rule (3) of Rule 35 of the Sindh Public Procurement Rules, 2010. Having considered the issue, we are of the opinion that the argument of the Assistant Advocate General of Sindh that as there was an alternate efficacious remedy in the form of a review available to the Petitioner under Rule 31 of the Sindh Public Procurement Rules, 2010 rendering this Petition as not being maintainable must fail as such a remedy was in effect not available to the petitioner under Rule 31 of the Sindh Public Procurement Rules, 2010 at the relevant time. Needless to say, in the event that any Procuring Agency was to today blacklist a contractor, that Procuring Agency would have to follow the Blacklisting of Bidders, Contractors, Supplies and Consultants Regulations, 2023 and a person aggrieved by any decision given by the Procuring Agency under Sub-Rule (3) of Rule 35 of the Sindh Public Procurement Rules, 2010 would generally have to, in accordance with Sub-Rule (4) of Rule 35 of the Sindh Public Procurement Rules, 2010, avail the remedy of a Review under Rule 31 of the Sindh Public Procurement Rules, 2010 before approaching this Court in its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

1. The authority of the Procuring Agency having not been found in the Sindh Public Procurement Rules, 2010 it is apparent that any administrative action that was carried out in respect of the blacklisting of the Petitioner had to be premised on the principles of Natural Justice. Admittedly neither a show-cause notice let alone a hearing was afforded to the Petitioner before issuing the Impugned Notice. The Supreme Court of Pakistan in the decision reported as Collector Customs Model Customs Collectorate Pehsawar v. Muhammad Ismail and others has held that:

2024 M L D 1985

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Soomro, J

Ahmed Ali Talpur---Appellant

Versus

Sub-Registrar Latifabad and 3 others---Respondents

IInd Appeal No. S-39 of 2023, decided on 22nd April, 2024.

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

----Ss. 96, 100 & O.VII, R. 11---Second appeal---Rejection of plaint--- Contents of plaint---Scope---First and second appeal--- Distinction--- Appellant / plaintiff was aggrieved of rejection of his plaint by two Courts below---Validity---For purposes of O.VII, R.11, C.P.C, sole prerequisite was that Court, prior to rendering a judgment must analyze averments made in plaint--- Through a requisite implication, it was evident that contents of written statement are not to be examined and put to juxtaposition with plaint to ascertain veracity or fallacy of the plaint's averments in which was expressly precluded--- Court was not tasked with adjudicating correctness of plaint or written statement--- Scope of section 100 C.P.C. was limited to appeals involving substantial questions of law rather than pure questions of facts--- In second appeal it was essential to formulate questions of law which were inherent to the jurisdiction--- In order to avoid unfairness and make sure justice was done, the ability to appeal had brought up the idea of highlighting two or even three layers of checks and balances--- There was a clear difference between two appellate jurisdictions--- First granted by S.96 C.P.C. allowed Appellate Court to consider factual issues---Second granted by S.100 C.P.C. did not allow it to interfere with factual findings recorded by first Appellate Court--- Appellant / plaintiff failed to demonstrate any illegality or material irregularity in judgment / order passed by both the Courts below--- Second appeal was dismissed in circumstances.

2023 CLC 887; 2008 CLC 1462; 2006 SCMR 489; 1995 SCMR 459; 2008 SCMR 650; 1995 SCMR 826; Anees Haider and others v. S. Arnir Haider and others 2008 SCMR 236; Haji Allah Bukhsh v. Abdul Rehman and others 1995 SCMR 459; Jewan and 7 others v. Federation of Pakistan 1994 SCMR 826; Muhammad Saleemullah and others v. Additional District Judge, Gujranwala PLD 2006 SC 511; Saleem Malik v. Pakistan Cricket Board PLD 2008 SC 650; S.M. Shafi Ahmed Zaidi v. Malik Hasan All Khan 2002 SCMR 338; Pakistan Agricultural Storage and Services Corporation Limited v. Mian Abdul Lateef and others PLD 2008 SC 371; Salamat Ali v. Khairuddin 2007 YLR 2453; Arif Majeed Malik and others v. Board of Governors Karachi Grammar School 2004 CLC 1029 and Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 ref.

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

---- O. XLI, R.1---Form of appeal--- Signatures of appellant, absence of--- Effect--- Appeal must be signed by a party or by its pleader---Where appeal is presented, not under instructions of appellant but under instructions of an alleged attorney, who has not obtained Special Power of Attorney, the same is not warranted under the law.

Imdad Ali Unar for Appellant.

Riazat Ali Sahar for Respondent No. 4.

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

Date of hearing: 29th January, 2024.

Judgment

Khadim Hussain Soomro, J.---Through this appeal under Section 100, Code of Civil Procedure 1908 ("C.P.C."), the appellant has impugned the Judgment and Decree dated 15.05.2023, passed in Civil Appeal No. 61 of 2023 by learned 8th Additional District Judge, Hyderabad ("the appellate Court"), whereby an appeal filed by the appellant/plaintiff was dismissed by upholding an order dated 28.02.2023 for rejection of plaint passed by learned IVth Senior Civil Judge, Hyderabad in F.C. Suit No. 327/2023 as well as dismissing the injunction application under Order XXXIX Rules 1 and 2 C.P.C. Hence, this 2nd appeal.

1. Appellant Ahmed Ali Talpur filed a Suit for declaration, cancellation, mandatory and permanent injunction against the respondents with the following prayers:-

a. To hold and declare that the plaintiff is an exclusive owner of the suit property by way of allotment order dated 20-11-2007 and in lawful possession of the suit property.

b. Grant decree of cancellation of lease deed dated 06-02-2023 No.61 in favour of defendant No.4 being void, ab-initio.

c. Grant mandatory injunction directing the defendants Nos.1 and 2 to register the lease deed in favour of plaintiff strictly in accordance with the law and maintain the same name of the plaintiff as owner.

d. Grant permanent injunction restraining the defendants from transferring, alienating, changing the suit property, creating third party interest or dispossessing the plaintiff from suit property, by themselves, through their agents, servants, assignees etc.

e. Costs of the suit may be saddled upon the defendant No.1 .

f. Any other relief as this Honourable Court deems fit and proper in the circumstances of the case.

1. After service of notice/summon respondent No.4 through his counsel filed an application under Order VII Rule 11 C.P.C. and after hearing counsel for parties, learned trial Court allowed the application under Order VII Rule 11 C.P.C. and rejected the plaint of appellant/plaintiff and also dismissed the application under Order 39 Rules 1 and 2 C.P.C. Being aggrieved appellant/plaintiff challenged the same before first appellate Court, same has been maintained and appeal has been dismissed vide impugned judgment dated 15.05.2023, hence this appeal.

2. Learned counsel for the appellant/plaintiff has mainly contended that the impugned judgment and decree as well as order rendered by both the courts below have been passed in a hasty manner; that both the Courts below have erroneously rejected the plaint of the appellant/plaintiff; it is a well settled principle of law that while deciding an application under Order VII Rule-11 C.P.C. averments of the plaint is to be seen but both the Courts below have ignored this principle; that the suit property was initially leased out to the appellant/plaintiff on 02.04.2011 and after expiry of 20 years another lease deed was executed in his favour; that allotment order dated 20.11.2007 issued by T.M.A demonstrates the name of appellant/plaintiff; that the appellant/plaintiff submitted the challan, which is available at Page-99 and lease deed at Page-95 of the Court file; that the lease deed dated 02.11.2023 was made by the Director Land Hyderabad Municipal Corporation in favour of appellant/plaintiff but the same was not registered for the period of 49 years. The counsel has referred letter dated 02.01.2023 written by director Land (supra) to appellant/plaintiff wherein the reference of allotment order was made; that there is also. No objection certificate' dated 07.02.2023 available on record; that the suit property was originally owned by Nawab Ahmed Ali Talpur grandfather of the appellant/plaintiff; that the respondent No.4 made a gift in favour of appellant/plaintiff in the year 2007 and such entry was made in the record of rights; that the gift was executed in favour of appellant/plaintiff by the respondent No.4 through unregistered gift dated 08.10.2007 and as per letter dated 31.01.2023 the gift was cancelled; that the director land (supra) through letter dated 26.05.2023 informed the appellant/plaintiff that the suit property was restored in the name of respondent No.4; that the statement on oath dated 30.10.2007 where the respondent No.4 affirms execution of gift as well as 'N.O.C.' and the registration of gift is not required by law under 'Muhammadan Law' and that the execution of gift was not denied by the respondent No.4. While, concluding his contentions, learned counsel relied upon section-42 of Specific Relief Act, 1877 and submitted that the cancellation of gift prima facie demonstrates that the gift was in existence. However, in support of his contentions, he has relied on the case law reported as 2023 CLC Page-887, 2008 CLC Page-1462, 2006 SCMR Page-489, 1995 SCMR 459, 2008 SCMR 650 and 1995 SCMR Page-826. He prayed to set aside the impugned judgment and decree/order of both the courts below.

3. The learned counsel for respondent No.4 has contended that the appellant/plaintiff is the son of respondent No.4, who is still alive. Counsel referred Para-5 of the plaint and submitted that the same reveals that there remained no love and affection between appellant/plaintiff and respondent No.4; hence, there is no question of making a gift in favour of the plaintiff/appellant. The counsel also referred to 'Para-8 of the plaint, which did not disclose the date, time or month as well as year of the execution of gift in the plaint, that 70 percent portion of the suit property is in possession of the appellant/plaintiff and only 30 percent is in possession of respondent No.4; that as per appellant/plaintiff's version that a statement of respondent No.4 was recorded in the office of respondent No.2, but no record is available in this regard; that neither the Vakalatnama nor the special power of attorney was signed by appellant/plaintiff and the instant appeal was filed by one Allah Jurio, who was not authorized to file the present appeal; that gift deed is available with H.M.C. The learned counsel for respondent No.4 prayed to dismiss the instant appeal.

4. I have heard the learned counsel for both parties and perused the record and the judgment/order of the two courts below. The plaint of the appellant/plaintiff was rejected under Order VII Rule 11 C.P.C.; it is deemed appropriate to scrutinize the provisions delineated under Order VII, Rule 11 of the Code of Civil Procedure, 1908, at the present juncture. The said provision is reproduced below:

"(11) Rejection of plaint.---The plaint shall be rejected in the following cases:

(a) Where it does not disclose a cause of action.

(b) Where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) Where the suit appears from the statement in the plaint to be barred by any law.

1. A vast array of instances have offered different interpretations of this crucial rule of law. The interpretation applied thereto falls within a broad spectrum, and I will examine some of the important case laws at a later stage. It is essential, therefore, to analyze the exact wording in the procedural law before doing so. The salient features contained in the provision are the following:-

(i) The words used are "rejection of plaint". In other words, the legislature has deliberately refrained from providing that the suit should be "dismissed". A distinction has thus been drawn between a dismissal of a suit and the rejection of a plaint, and it is this distinction that needs to be elucidated.

(ii) The opening words indicate that it is mandatory for the Court to reject the plaint if one or more of the four clauses are found to be applicable. This is made clear by the use of the word "shall" in the opening phase.

(iii) The first clause contains a clear statement that. in case the plaint does not disclose a cause of action, it is to be rejected. The next two clauses, namely, clauses (b) and (c), relate to the valuation of the plaint and the stamp duty to be affixed thereon and, again do not require much discussion. It is the last clause, namely (d), in relation to which most of the litigation has taken place. Therefore, it requires a careful analysis.

(iv) Clause (d) has three constituent elements. The first part uses the important word "appears", the second part relates to statements made in the plaint, (i.e. there is no reference to the written statement), and the third part states the inference to be drawn if a suit "appears" from the statement in the "plaint" to be "barred" by law. This read, in conjunction with the opening words of Rule 11, makes it mandatory for the Court to reject the plaint.

1. It is essential to analyse the grounds upon which a plaint is subject to rejection. Substantial jurisprudence exists on this subject matter, incorporating a broad spectrum. On one hand of the spectrum, there is a notable emphasis on paramount importance to the averments within the plaint, excluding extraneous considerations. Conversely, the spectrum extends to include an examination of the plaint itself and the attached documents and, stretching further, scrutiny of other manifest and unequivocal materials in the record. The subsequent elucidation presents several pivotal judgments of the apex court of Pakistan on this matter:-

(i) In the case of Anees Haider and others v. S. Amir Haider and others (2008 SCMR 236), the apex court reaffirmed the doctrinal tenet that reliance on the written statement is untenable.

(ii) In the case of Haji Allah Bukhsh v. Abdul Rehman and others (1995 SCMR 459), it was observed that the averments made in the plaint are presumed to be correct.

(iii) In the case of Jewan and 7 others v. Federation of Pakistan (1994 SCMR 826), it was determined that legal sanction allows for the examination exclusively of the contents set forth in the plaint, with the defence enunciated in the written statement deemed inadmissible. However, it was well-known that, in conjunction with the plaint, any other material acknowledged by the plaintiff and produced before the Court may be deliberated. Additionally, it was highlighted that the Court lacks the entitlement to analyze any supplementary material unless it has been duly entered into the record in conformity with the established rules of evidence.

(iv) In the case of Muhammad Saleemullah and others v. Additional District Judge, Gujranwala (PLD 2006 SC 511), it was observed that Order VII, Rule 11 anticipates the rejection of a plaint only on the basis of averments made in, "the plaint, and the pleas raised in the written statement are not to be taken into account. It was also observed that the Court was entitled to rely on the documents annexed to the plaint.

(v) The case of Saleem Malik v. Pakistan Cricket Board (PLD 2008 SC 650), it is a little difficult to reconcile with the overwhelming weight of authority since the observation in this case was "that the court, may, in exceptional circumstances, consider the legal objection in the light of averment of the written statement but the pleading as a whole cannot be taken into consideration for rejection of plaint under Order VII, Rule 11, C.P.C"

(vii) In the case of S.M. Shafi Ahmed Zaidi v. Malik Hasan Ali Khan (2002 SCMR 338), the following finding was rendered:

"It was further observed that "it is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigation party and judicial system itself. The parties are saved their time and unnecessary expenses, and the courts get more time to devote it for the genuine causes."

(viii) In the case of Pakistan Agricultural Storage and Services Corporation Limited v. Mian Abdul Lateef and others PLD 2008 SC 371, it was held that the object of Order VII, Rule 11, C.P.C. was primarily to save the parties from the rigorous frivolous litigation at the very inception of the proceedings.

(ix) In the case of Salamat Ali v. Khairuddin 2007 YLR 2453, it was observed that although the proposition that a court, while rejecting the claim under Order VII, Rule 11, C.P.C., could only examine the contents of the plaint was correct, nevertheless, this rule should not be applied mechanically.

(x) In the case of Arif Majeed Malik and others v. Board of Governors Karachi Grammar School (2004 CLC 1029), it was noted that the traditional view was that in order to reject a plaint under Order VII Rule 11, only the contents of the plaint were to be looked into. It was added, however, that this view had since been modified to the extent that an undisputed document placed on record could also be looked into for the aforesaid purpose.

1. After considering the ratio decidendi in the above cases, I am clear in my mind about the scope of Order VII, Rule 11 C.P.C. The statutory framework does not include any stipulation mandating that the plaint be supposed to incorporate the entire veracity of facts. Instead, it is up to the Court, which is inherent in every Court that deals with justice and equity, to determine whether a suit is barred by any law for the time being enforced. The sole prerequisite is that the Court, prior to rendering a judgment, must analyze the averments made in the plaint. Furthermore, through a requisite implication, it is evident that the contents of the written statement are not to be examined and put in juxtaposition with the plaint to ascertain the veracity or fallacy of the plaint's averments is expressly precluded. In essence, the Court is not tasked with adjudicating the correctness of the plaint or the written statement.

2. Now, by following the ratio decidendi settled in the above case laws, turning towards the averment of the plaint. As per paragraph No. 08 of the plaint, the plaintiff/appellant averred that the suit house was gifted by respondent No. 04 to the appellant and as per paragraph No. 09 of the plaint, which is reproduced as under:-

"That by virtue of said gift the statement was recoded before the office of the defendant No. 02 and accordingly in this manner, the suit property was transferred in favour of plaintiff through allotment, his name was incorporated in the record by the defendant No. 02 and he becomes owner of the property vide allotment dated 20-11-2007, after fulfilling the codal formalities "

1. As per the application moved by the appellant/plaintiff dated 26-10-2007, the appellant claimed to have purchased the suit house. Moreover, the appellant/ plaintiff sought the declaration of ownership on the basis of the allotment order. The appellant/ plaintiff has filed the lease deed, which does not show the mode of transfer of the suit house by way of gift; instead, it demonstrates that the same is purchased and the dead is unregistered. Whereas the registered lease deed is registered in the name of respondent No. 04, when the register lease deed in the name of the respondent No.04 has not been cancelled, the suit house can neither be transferred to the name of the appellant/plaintiff nor the same can be allotted to him. Hence the suit of the plaintiff/appellant is defective. The reliance can be placed in the case of Jewan and 7 others v. Federation of Pakistan as cited supra.

2. The incompetent Suit should be responded to promptly with its logical end and buried at its initial stage. This procedural requirement benefits the parties embroiled in the dispute and enhances the efficiency of the entire judicial system. By adhering to this rule, both parties can conserve their time and resources, avoiding unnecessary expenses. Simultaneously, the courts can prioritize addressing substantive issues /rather than getting bogged down in preliminary matters. Thus, early resolution of incompetence-related suits streamlines the legal process, ensuring that pertinent issues receive due attention. The reliance can be placed on the case of S.M. Shafi Ahmed Zaidi supra.

3. Another important aspect of the case is that this appeal is presented through a Special Power of Attorney, namely, Allah Jurio, son of Allah Dino, who claims to be the Special Power of Attorney of the appellant. The record reveals that the Special Power of Attorney, available at page No.130 of the court file, does not show signatures of either the executant or witnesses, but it is estranged that the Notary Public has attested it without signature. The record further reveals that the said Allah Jurio has engaged counsel. A perusal of the Vakalatnama of the counsel demonstrates the signature of Allah Jurio, who has engaged the counsel to file this appeal as the Special Power of Attorney of Ahmed Ali Talpur. It is a matter of record that during the proceedings, the said Ahmed Ali Talpur did not appear to verify the Special Power of Attorney, under Order XLI Rule 1 C.P.C, which provides a procedure for the presentation of an appeal. The said rule is reproduced as follows:

"1. Form of appeal. What to accompany memorandum.-- (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded."

1. The aforementioned rule states that the appeal must be signed by the party or by his pleader. In the instant case, undoubtedly, the appeal was presented by counsel not under the instructions of Ahmed Ali Talpur but under the instructions of the alleged attorney, Allah Jurio, who, without obtaining Special Power of Attorney, has presented the appeal, which is not warranted by law.

2. Regarding the argument of the learned counsel that the non-signing of the Vakalatnama as well as the memo. of appeal is merely a procedural irregularity which can be rectified at any stage of the proceedings, to the extent of this submission of learned counsel, undoubtedly, the law states so. However, in the instant case, the appeal was presentecl by Allah Jurio who was not appointed as Special Power of Attorney by Ahmed Ali Talpur. Furthermore, during the pendency of the instant appeal, the said Ahmed Ali Talpur did not appear to rectify or affirm that the present appeal was drafted and submitted under his instructions. Hence, it is observed that while filing the instant appeal, the procedure has been grossly violated.

2024 M L D 18

[Lahore]

Before Abid Hussain Chattha, J

NAZEER AHMAD---Petitioner

Versus

MUHAMMAD SADIQ (DECEASED) through L.Rs and 2 others---Respondents

C.R. No. 174 of 2017, heard on 15th September, 2023.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for recovery of possession---Mutation of sale---Proof---Onus to prove---Petitioner/defendant claimed to be owner of suit property on the basis of mutation of sale attested by revenue authorities---Respondents/plaintiffs assailed mutation in question on the plea that their deceased predecessor-in-interest died due to cancer who remained in hospital for treatment during the period when mutation in question was attested---Suit filed by respondents/ plaintiffs was dismissed by Trial Court but Lower Appellate Court decreed the same---Validity---Recording of report in Roznamcha regarding change in rights of a land owner was a first step to trigger process of transfer of rights---Mutation was sanctioned by order of Revenue Officer made in presence of the person whose right was acquired and he had been identified by two respectable persons and an inquiry in such behalf was conducted in common assembly of concerned estate---Entry recorded in Roznamcha was merely a ministerial act performed by Patwari which was incorporated in register of mutations culminating into an order of passing of mutation under S. 42(6) of Punjab Land Revenue Act, 1967---Act of recording of transaction regarding change of rights by Patwari at the behest of an acquirer in Roznamcha did not constitute an admission of transaction on the part of seller---Petitioner/defendant failed to discharge burden of proof regarding alleged transactions in terms of personal appearance of deceased predecessor-in-interest of respondents/plaintiffs and witnesses before Revenue officer, payment of sale consideration, delivery of possession, subsequent dispossession, recording of transaction in Roznamcha and lawful attestation of mutation in question---High Court declined to interfere in judgment and decree passed by Lower Appellate Court---Revision was dismissed, in circumstances.

Haq Nawaz v. Malik Gul Hussain through Legal Heirs and another 1994 MLD 585; Haji Ilahi Bakhsh v. Noor Muhammad and others PLD 1985 SC 41; Muhammad Zaman Khan v. The Additional Chief Land Commissioner and another 1986 SCMR 1121; Zulfiqar and others v. Shahdat Khan PLD 2007 SC 582; Khalil Ahmad v. Abdul Jabbar Khan and others 2005 SCMR 911; Mst. Khanai and 4 others v. Ghulam Rasool and 9 others 2022 CLC 433 and Mst. Kaneeza Bibi and 4 others v. Sabir Hussain and 3 others PLD 2023 Lah. 380 rel.

Noor Muhammad v. Abdul Ghani 2002 CLC 88; Tooti Gul and 2 others v. Irfanuddin 1996 SCMR 1386; Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Saddaruddin (since deceased) through LRs. v. Sultan Khan (since deceased) through LRs and others 2021 SCMR 642 and Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 ref.

Ch. Muhammad Yaqoob Sidhu for Petitioner.

Rana Rashid Akram Khan for Respondent No. 1(iii).

Respondent No. 1(i) proceeded ex parte.

Sikandar Nisar Soroya, Assistant Advocate General for Respondents Nos. 2 and 3.

Assisted by Miss Asmah Syed, Research Officer.

2024 M L D 32

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

SHARIQ BUILDERS AND PROPERTY ADVISORS---Appellant

Versus

Dr. MUHAMMAD FAISAL MURAD and others---Respondents

F.A.O. No. 54 of 2023, decided on 9th October, 2023.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1, 2 & O. XLIII---Specific Relief Act (I of 1877), Ss. 12 & 54---Suit for specific performance, permanent injunction---Application for restraining the defendants not to further alienate the suit-property---Injunction, "ad interim" or "temporary---Scope---Appeal preferred against order regarding ad-interim injunction---Maintainability---Plaintiff, along with plaint, filed an application under O. XXXIX, Rr. 1 & 2 of Civil Procedure Code, 1908, for restraining the defendants not to further sell/alienate/transfer the suit-property---Civil Court rejected the request of the appellant for grant of ad-interim injunction while directing to deposit remaining consideration amount till adjourned date, extending a warning that otherwise the suit would be dismissed due to non-deposit of remaining consideration---Against said order, the appellant/plaintiff preferred appeal in terms of O. XLIII of the Code of Civil Procedure, 1908, before the High Court---Respondents/defendants raised objection qua maintainability of the appeal by stating that as mere relief regarding grant of ad interim relief had been declined and the main application filed under O. XXXIX, Rr. 1 & 2, C.P.C., was yet pending adjudication with the Trial Court, thus filing of appeal under O. XLIII of the C.P.C was not maintainable---Validity---Admittedly the agreement to sell had been executed between the parties, however, there were certain apparent shortfalls in fulfillment of terms thereof, yet the record revealed that only ad-interim injunction sought for in the suit filed by the appellant/plaintiff had been declined while a date had been fixed for arguments of the parties upon point of maintainability of said suit---Thus, main application filed by the appellant/plaintiff under O. XXXIX, Rr. 1 & 2, Civil Procedure Code, 1908, was still pending adjudication with the Trial Court and such scenario would not amount to a 'case decided'---In compliance of an order passed by High Court, appellant/plaintiff had deposited the remaining consideration amount---Since the matter before High Court was regarding ad-interim injunction only and Trial Court was already seized with the matter, High Court directed the Trial Court to finally decide the application under O. XXXIX, Rr. 1 & 2, Civil Procedure Code, 1908, within ten days after affording an opportunity of hearing to the parties---Appeal against order filed by the appellant/plaintiff was disposed of accordingly.

Exceed (SMC Pvt. Ltd.) through President and Chief Executive v. ZTAF ZHONGXING Telecom Pakistan (Pvt.) Ltd. through Executive Director and another 2007 CLC 348 ref.

Muhammad Junaid Akhtar Khokhar and Chaudhary Muhammad Aamir Naeem for the Appellant.

Agha Muhammad Ali Khan for Respondent No.1.

2024 M L D 55

[Lahore]

Before Sultan Tanvir Ahmad, J

FALAK SHER and 2 others---Petitioners

Versus

ABDUL AZIZ (DECEASED) through LRs and others---Respondents

Civil Revision No. 36424 of 2023, decided on 31st May, 2023.

Civil Procedure Code (V of 1908)---

----S. 115 & O. XLI, R. 27---Revisional jurisdiction of the High Court---Interim/interlocutory orders passed by subordinate Court---"Decided case"---Scope---Petitioners invoked revisional jurisdiction of the High Court assailing an order passed by the Appellate Court by which request of adjournment by the counsel for opposing party (appellants) was accepted and main appeal was fixed for next date to come up for final arguments coupled with arguments on application for permission to produce additional evidence filed under O. XLI, R. 27 of the Civil Procedure Code, 1908 ('the application')---Contention of the petitioners was that Appellate Court had incorrectly fixed the application as well as the main appeal for arguments on the same day as there was an apprehension that while proceeding to decide the main appeal, the application would be ignored---Validity---Section 115 of the Civil Procedure Code, 1908, reflects that the revisional jurisdiction can be exercised when defects contemplated in the provision of S. 115 of the C.P.C, 1908, are arising out of any case which has been decided---Examination of the said provision reveals that High Court should not too readily interfere with interlocutory orders of the subordinate Court, unless express or implied conditions of clauses 'a', 'b' and 'c' of S. 115(1) of the C.P.C, 1908, are involved and only those interlocutory orders attract revisional jurisdiction that deal with some question in controversy before the Court or it has effect on rights of the parties to the lis---Baseless apprehensions or assumptions as to wrong exercise of jurisdiction or orders of adjournment or orders fixing the case for arguments, certainly do not fall within the scope of 'case decided' to maintain revision-petition under S. 115 of the C.P.C, 1908---Revision was dismissed in limine, in circumstances.

Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and others 1992 SCMR 718; Mian Muhammad Luqman and 5 others v. Farida Khanam and another 1994 SCMR 1991; Umar Dad Khan and another v. Tila Muhammad Khan and 14 others PLD 1970 SC 288 and Sultan Ali alias Sultan through L.Rs and others v. Rasheed Ahmad and 45 others 2005 SCMR 1444 ref.

Muhammad Umer v. Muhammad Qasim and another 1991 SCMR 1232; Nestle Milkpak Limited v. Classic Needs Pakistan (Pvt.) Ltd. and 3 others 2006 SCMR 21 and Messrs Sheikh Goods Transport Company and others v. National Fertilizer Marketing Ltd. 2022 MLD 121 distinguished.

2024 M L D 90

[Lahore]

Before Ch. Muhammad Iqbal, J

KHALID MEHMOOD and others---Appellants

Versus

SARDARAN BIBI and others---Respondents

R.S.A. No. 261 of 2016, heard on 8th June, 2022.

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

----S. 17---Transfer of Property Act (IV of 1882), S. 118---Specific Relief Act (I of 1877), S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 17, 79 & 129(g)---Suit for declaration---Unregistered document---Exchange deed---Proof- Appellants/defendants were aggrieved of judgments and decrees passed by Trial Court and Lower Appellate Court declaring respondents/plaintiffs as owner of suit land---Validity---Unregistered deed of exchange comprising immovable property of value of more than Rupees 100/- per se was not admissible in evidence---Exchange deed was not a registered document, whereas under S. 17 of Registration Act, 1908, it was compulsorily, registerable document and without its registration, it could not be considered as a valid document---Suit for declaration on the basis of unregistered exchange deed was barred under S. 42 of Specific Relief Act, 1877---Respondents/plaintiffs did not produce marginal witnesses of exchange deed to negate execution of same without advancing any trustworthy reason in such regard---Such flaw amounted to withholding of best evidence and presumption under Art. 129(g) of Qanun-e-Shahadat, 1984 operated against respondents/plaintiffs---No land was transferred in favor of predecessor-in-interest of appellants/defendant by predecessor-in-interest of respondents/plaintiffs, nor any document was produced by respondents/plaintiffs in such regard therefore, exchange of property in favour of predecessor-in-interest of respondents / plaintiffs was not proved---High Court in exercise of appellate jurisdiction set aside judgments and decrees passed by two Courts below as the same suffered from misreading and non-reading of evidence as well as misapplication of law and suit filed by respondents/plaintiffs was dismissed---Second appeal was allowed, in circumstances.

Jawala v. Waryaman and another AIR 1927 Lahore 90; Muhammad Hussain and others v. Mukhtar Ahmad and 2 others 2007 YLR 2228; Mokim Mondal and another v. Ali Miah Pradhan and others PLD 1967 Dacca 591; Mst. Salaman v. Bashir Ahmad and another 2007 YLR 2440; Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCMR 137; Jehangir v. Mst. Shams Sultana and others 2022 SCMR 309; Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Hayat Muhammad and 8 others v. Tajuddin and another 1994 SCMR 1188; Manzoor Hussain v. Haji Khushi Muhammad 2017 CLC 70; Tahir Hussain v. Ghulam Faruque and 7 others PLD 1978 Kar. 182; Haji Nazeer Ahmed v. Raja Muhammad Saeed Khan and 11 others PLD 2010 SC(AJ&K) 47 and Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others 2016 SCMR 24 rel.

Mst. Waris Jan and another v. Liaqat Ali and others PLD 2019 Lah. 333; Messrs Digital Link (Pvt.) Ltd. through Authorised Officer and others v. Messrs Hangzhou Hikvision Digital Technology Co. Ltd. and others 2020 CLC 2108 and Sui Northern Gas Company Limited v. Data Steel Pipe Industries (Pvt.) Limited and others 2021 CLC 892 ref.

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

----Ss. 42 & 49---Registration Act (XVI of 1908), S. 17---Declaration of title---Unregistered deed---Effect---Unregistered document neither creates any title nor right or interest in suit property as envisaged in S. 49 of Specific Relief Act, 1877---Suit for declaration under S. 42 of Specific Relief Act, 1877 on the basis of such document is neither permissible nor maintainable.

Gohar Rehman v. Riaz Muhammad 2011 YLR 888 and Hashmat Ali v. Mst. Rashidan Bibi and 2 others 2004 YLR 3140 rel.

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

----Arts. 17 & 79---Agreement---Proof---Non-production of required number of marginal witnesses is non-compliance of mandatory provision of law which is fatal.

Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others PLD 2011 SC 241; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 and Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044 rel.

Anwaar Hussain and Mian Muhammad Rizwan for Appellants.

Shah Nawaz Khan Niazi for Respondents.

2024 M L D 130

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

IRFAN MEHMOOD---Petitioner

Versus

UNIVERSITY OF THE PUNJAB through Registrar, Quaid-e-Azam Campus, Lahore and 3 others---Respondents

Writ Petition No. 2477 of 2021, decided on 6th June, 2023.

Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006)---

----Ss.4(1)(b)(vi), 13(4), 16 & 17---Constitution of Pakistan, Art. 199---Penalty awarded to employee--- Constitutional petition---Maintainability---Alternate remedy, availability of---Petitioner was Naib Qasid rendering services with the University ,who was dismissed from the service by the Registrar---Petitioner invoked constitutional jurisdiction of the High Court against the penalty imposed against him---Validity---Record revealed that proceedings under the provisions of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ('the Act 2006') were initiated against the petitioner; he, after issuance of Show Case Notice under S. 13(4) of the Act 2006, was provided personal hearing and then he was awarded major penalty of dismissal from service in terms of S. 4(1)(b)(vi) of the Act 2006 vide order passed under S. 13 of the Act 2006---Petitioner availed remedy of appeal provided under S. 16 of the Act 2006 before the respondent (the Registrar), which (appeal) was dismissed---Specific remedy of revision was available to the petitioner before the Chancellor being an Appellate Authority under S. 17 of the Act 2006 against the order of dismissal of appeal---High Court, before granting relief to the petitioner by exercising its constitutional jurisdiction, must satisfy itself regarding the non-availability of any alternate remedy; or even in case the Court is inclined to grant relief in presence of alternate remedy, it should be satisfied that circumstances of the case had made the other remedy inadequate---In presence of an alternate efficacious remedy having been available to the petitioner/litigant, jurisdiction of the High Court under Art. 199 of the Constitution could not be invoked---Petitioner, instead of availing said remedy, had invoked constitutional jurisdiction of the High Court, however, High Court, on the request of the petitioner, remitted the contents of the present petition, along with relevant record, to the Chancellor to treat the same as a revision in terms of S. 17 of the Act 2006, for its decision---Constitutional petition was disposed of.

Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2011 SCMR 842; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Muhammad Abbasi v. SHO Bhara Kahu and 7 others PLD 2010 SC 969 ref.

Muhammad Asif Khwaja for Petitioner.

2024 M L D 145

[Lahore]

Before Safdar Saleem Shahid, J

Mst. FARIDA BIBI and others---Petitioners

Versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No. 18625 of 2016, decided on 13th January, 2022.

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

----S. 5, Sched.---Suit for recovery of maintenance allowance of minor---Rights of minor---Maintenance allowance of minor, waiving of---Scope---Agreement (Punchayat Nama) was entered into between the parties by which custody of minor girl was to be handed over to her mother on the condition that she (mother) would not demand the maintenance allowance of the minor girl---Said agreement/Punchayat Nama (document-in-question) was signed by the grandfather of minor girl---Held, that the rights of minor can not be waived by the mother or any of the blood relatives---Allah has specifically fixed the responsibility of maintaining the minor (suckling baby) to the father and the mother has been given responsibility of feeding the child---Where the father is not alive or not in a position to pay maintenance, then the responsibility will be shifted to mother if she can bear the same, or to the other family members (like grandfather) as given in S. 370 of the Muhammadan Law---Document-in-question would not disentitle the minor from her Shari right of maintenance allowance---High Court upheld the maintenance allowance to the minor having been rightly awarded to the minor by the Family Court---Constitutional petition was disposed of accordingly.

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

----S. 5, Sched.---Suit for recovery of maintenance allowance of the minor and mother/lady---Maintenance allowance for the period when wife is not living with the husband---Past maintenance allowance---Fostering period of the child---Scope---Family Court granted the maintenance allowance for the iddat period to the lady/plaintiff in wake of her divorce---Family Court though granted the maintenance allowance to the minor-girl (suckling baby) but denied the same to her mother/plaintiff (for fostering period) on the basis that she had left the house of her husband, not performing her matrimonial obligations---Held, that though a disobedient lady living separately without any reason should be refused payment of maintenance allowance for that period as she has not performed her matrimonial obligations, but the situation in the present case was different as the petitioner (plaintiff-lady) had been feeding the minor during such period, thus the respondent (father of the minor) was under obligation to provide the maintenance to her (petitioner) who was feeding his child---Welfare of the minor is supreme, even if the mother has left her husband's house herself or she is expelled from the house---As per Sharia the father is duty bound to maintain his wife who is feeding his child and maintenance allowance of such mother cannot be stopped in any way, however, after that period the Court can assess the evidence adduced by the parties and then appropriate order can be passed---Under the Islamic Law , the feeding period has been fixed by Fiqa as two and half (2-1/2) years, therefore, petitioner (plaintiff/mother) was also entitled for the past maintenance allowance from date of her desertion till the time of conclusion of feeding/fostering period of the minor (i.e. two and half years)---High Court modified impugned judgment and decree to the extent of grant of the past maintenance allowance to the petitioner (plaintiff/mother) for the said period at the rate the minor had been granted maintenance allowance---Constitutional petition was disposed off accordingly.

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

----S. 5, Sched.---Civil Procedure Code (V of 1908), S. 151---Constitution of Pakistan, Art. 199---Maintenance allowance of minor, enhancement of---Constitutional petition---Maintainability---Mother invoked constitutional jurisdiction of the High Court to seek enhancement of maintenance allowance on the ground of daily growing requirements of minor---Held, that the Family Court had exclusive jurisdiction to pass an order on the application (under S. 151 of the Civil Procedure Code, 1908) for enhancement of the maintenance allowance even after the passing the final judgment and decree---Petitioner might move the application under S. 151 of the Civil Procedure Code, 1908, for enhancement of the minor before the Court of jurisdiction---Constitutional petition was disposed of accordingly.

Lt. Col. Nasir Malik v. Additional District Judge Lahore 2016 SCMR 1821 ref.

Miss Kashwar Naheed for Petitioners.

2024 M L D 172

[Lahore (Multan Bench)]

Before Muhammad Shan Gul, J

NAZEER AHMAD and others---Petitioners

Versus

ZAKIR HUSSAIN and others---Respondents

C.R. No. 1080-D of 2020, heard on 7th June, 2022.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Revenue record---Entry in Roznamcha (Daily Book)---Proof---Registered agreement to sell---Effect---Suit filed by respondents/plaintiffs was decreed by Trial Court in their favour and appeal filed by petitioners/defendants was dismissed by Lower Appellate Court---Validity---Roznamcha attained no presumption of truth, unless and until its maker was produced to prove the same---Revenue officer who attested alleged mutation was not produced and hence no probative value could be attached to the Report incorporating mutation in question---There were overwhelming features in support of registered agreement to sell in favour of respondents/plaintiffs coupled with concurrent judgments of two Courts below in their support---High Court declined to interfere in concurrent findings of facts by two Courts below---Revision was dismissed, in circumstances.

Jehangir v. Mst. Shams Sultana and others 2022 SCMR 309; Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21; Muhammad Naeem Khan and another v. Muqadas Khan (decd) through L.Rs. and another PLD 2022 SC 99; Zulfiqar and others v. Shahdat Khan PLD 2007 SC 582; Khalil Ahmad v. Abdul Jabbar Khan and others 2005 SCMR 911; Mohammad Hussain v. Allah Ditta 2017 YLR 1249; Eada Khan v. Mt. Ghanwar and others 2004 SCMR 1524; Muhammad Akram alias Raja v. Muhammad Ishaque 2004 SCMR 1130 and Muhammad Ibrahim (deceased) through LRs and another v. Taza Gul and others 2020 SCMR 2033 rel.

Tahir Mehmood for Petitioners.

Syed Tajammal Hussain Bukhari and Khawar Habib Gujjar for Respondents.

2024 M L D 183

[Lahore]

Before Muhammad Shan Gul, J

Mst. ANEEQA SOHAIL and others---Petitioners

Versus

LAHORE DEVELOPMENT AUTHORITY through Chairman and 3 others---Respondents

Writ Petition No. 47140 of 2022, decided on 3rd August, 2022.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversy---Title, determination of---Appreciation of evidence---Principle---Petitioners were aggrieved of non-transfer of suit plot by Lahore Development Authority in favour of person to whom it was sold---Validity---Questions regarding title of a person in a property fell outside the ambit of Constitutional jurisdiction, hence, could not be decided in exercise of powers under Art. 199 of the Constitution---Evaluation of evidence necessary to decide such questions could not be undertaken by Constitutional Court and invocation of such jurisdiction could only be made when there was no stigma or defect alleged on the title of litigant---Such defect could only be adjudicated by Courts of plenary jurisdiction---Existence of or even undetermined allegation of such facts precluded petitioners from seeking issuance of a writ---Contentions of petitioners themselves pointed towards an alleged blot on their title---When title itself was undetermined, High Court could not proceed on an assumption of existence of any vested right, sufficient to enable High Court to exercise its jurisdiction under Art. 199---Right of petitioners to use and dispose of their property, contingent upon existence of a valid title was a private law right, which once established would give rise to public law duty of Lahore Development Authority to not cause any hindrance in the exercise of such right---Petitioners tried to cross the bridge before reaching it and had sought issuance of a writ for enforcement of a public law right without first establishing their private law right from a Court of ordinary jurisdiction---Constitutional petition was dismissed, in circumstances.

Dhani Khan v. M.Z. Khan (Member, Board of Revenue, West Pakistan) and another PLD 1963 Lah. 583; Ex-parte Sidebotham (1880) 14 Ch.D. 458; National Steel Rolling Mills and others v. Province of West Pakistan 1968 SCMR 317(2); Mian Muhammad Shahbaz Sharif v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and others PLD 2004 SC 583; Liaqat Ali v. City Nazim and others 2003 MLD 1635; Mughal-e-Azam Banquet Complex through Managing Director v. Federation of Pakistan through Secretary and 4 others 2011 PTD 2260; Regine (John M'Evoy) v. Dublin Corporation (1879) 2 L.R.Ir. 371; Ch. Zafar Hussain and 5 others v. Border Area Committee through Chairman and 6 others 2012 MLD 1538; Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others 2011 SCMR 279; The Province of East Pakistan v. Kshiti Dhar Roy and others PLD 1964 SC 636; Mst. Zuhra Begum v. Syed Sajjad Hussain and 7 others 1971 SCMR 697; Ataur Rehman Khan v. Dost Muhammad and others 1986 SCMR 598; Anjuman-e-Ahmadiya, Sargodha v. (1) The Deputy Commissioner, Sargodha and (2) The Government of West Pakistan, through the Secretary Colonies, Board of Revenue, West Pakistan, Lahore PLD 1966 SC 639; Davy v. Spelthorne B.C (1983) 3 All ER 278; O'Reilly v Mackman [1983] UKHL 1; Cocks v Thanet District Council (1983) 2 AC 286 and Roy v. Kensington (1992) 1 All ER 705 rel.

Muhammad Yasir Ibrahim for Petitioners.

Mohammad Usman Khan, A.A.G. for Respondents.

Barrister Bushra Saqib, Friend of the Court on Court's call.

2024 M L D 203

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

AL-KHALID FLOUR MILLS---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 3042 of 2022, heard on 17th October, 2023.

(a) Punjab Foodstuffs (Control) Act (XX of 1958)---

----S. 3---Punjab Government Rules of Business, 2011, First Schedule, Column-III, Sr. No. 12---Standing Operating Procedure dated 21.9.2022 issued by Director Food Punjab, Clause VI---Wheat release milling policy 2022-2023 dated 19.09.2022---Constitution of Pakistan, Art. 18---Standing Operating Procedure dated 21.09.2022 ('the SOP'), Clause VI, vires of---Restriction that no wheat quota to any flour mill would be issued during the days of Army grinding---Legality---Rights of trade and business---Scope---Contention of the petitioner/Mill was that the Clause-VI of the SOP patently contradicted the Wheat Release Milling Policy 2022-2023 dated 19.09.2022 ('the Policy') and also that the SOP issued by the respondent/Director Food Punjab lacked sanction of the respondent/Secretary Food Department---Validity---Pertinently, Director Food, Punjab, being the head of attached department of Food Department fell under First Schedule, Column-III, Sr. No. 12 of the Punjab Government Rules of Business, 2011 ('the Rules')---Food Department had the mandate to legislate, formulate policy and plan as a measure of food security through wheat procurement, construction and maintenance of storage accommodation, storage of wheat, financial arrangements with the banks, transportation of wheat and release of wheat and its overall monitoring---For the release of wheat stock available and to ensure its uninterrupted supply and stabilization of its price in market, the Food Department introduced the Policy under S. 3 of the Punjab Foodstuffs (Control) Act, 1958 with certain terms and conditions---Petitioner/Mill had failed to point out solid reasons to declare the SOP as an act without lawful authority or violative of fundamental rights, which otherwise had been issued by the lawful Authority---Constitutional petition filed by the flour mill was dismissed, in circumstances.

(b) Punjab Foodstuffs (Control) Act (XX of 1958)---

----S. 3---Constitution of Pakistan, Art. 18---Wheat release milling policy 2022-2023 dated 19.09.2022---Standing Operating Procedure dated 21.09.2022 issued by Director Food Punjab, Clause VI---Petitioner being flour mill invoked constitutional jurisdiction of the High Court challenging Clause-VI of the SOP on the ground that said clause patently contradicted the Wheat release milling policy 2022-2023 dated 19.09.2022 ('the Policy')---Contention of the respondents was that though no restriction on private grinding had been imposed upon the flour mills, yet it was bound to submit monthly grinding schedule to the District Food Control for issuance of subsidized wheat quota under the Policy, which the petitioner/mill had failed to provide---Validity---Clauses of the SOP revealed that the flour mills grinding private wheat for the Army, were bound to submit monthly grinding schedule to the concerned District Food Controller duly approved by the Ministry of Defence for the issuance of subsidized wheat quota from the Government of Punjab under the SOP---Petitioner/Mill despite complying with the SOP for getting subsidized wheat quota was reluctant to provide the grinding schedule merely stating that the respondents were not issuing the wheat quota which infringed its fundamental rights of trade and business under Art. 18 of the Constitution---Though Art. 18 of the Constitution promoted the rights of trade/business of every citizen to carry out lawful trade but said rights were subject to certain qualifications as prescribed by the law and the law in the present case was the SOP issued in pursuance of the Notification by the Food Department under the Rules---When a law described or required a thing to be done in a particular manner, it should be done in that manner or not at all---SOP under challenge envisaged that the petitioner/mill was only obligated to submit monthly grinding schedule to the concerned District Food Controller duly approved by the concerned authority of Pakistan Army and not the information with regard to sale or purchase of stores, which might amount to breach of certain terms and conditions of the contract executed between the petitioner/mill and the Pakistan Army---Moreover, the petitioner/mill had not brought on record specific grinding days of Pakistan Army in a month for the release of government wheat quota---Letter issued by the concerned District Food Controller had required the petitioner/mill to submit information in terms of days specified for grinding of Pakistan Army but the petitioner/mill failed to provide such information pursuant to which the petitioner/mill was refused government wheat quota during the days of Pakistan Army grinding---Petitioner/Mill had failed to point out solid reasons to declare the SOP as an act without lawful authority or violative to fundamental rights, which otherwise had been issued by the lawful authority---Constitutional petition filed by the flour mill was dismissed, in circumstances.

Attaullah Khan v. Ali Azam Afridi and others 2023 PLC (C.S.) 182 ref.

(c) Punjab Foodstuffs (Control) Act (XX of 1958)---

----S. 3---Constitution of Pakistan, Arts. 4, 5, 18 & 199---Punjab Government Rules of Business, 2011, First Schedule, Column-III, Sr. No.12--- Standing Operating Procedure dated 21.09.2022 issued by Director Food Punjab, Clause VI---Wheat release milling policy 2022-2023 dated 19.09.2022---Standing Operating Procedure dated 21.09.2022 ('the SOP'), Clause VI, vires of---Restriction that no wheat quota to any flour mill would be issued during the days of Army grinding---Legality---Rights of trade and business---Scope---Petitioner being flour mill invoked constitutional jurisdiction of the High Court challenging Clause-VI of the SOP on the ground that said clause patently contradicted the Wheat release milling policy 2022-2023 dated 19.09.2022 ('the Policy')---Contention of the respondents was that though no restriction on private grinding had been imposed upon the flour mills yet it was bound to submit monthly grinding schedule to the District Food Control for issuance of subsidized wheat quota under the Policy, which the petitioner/mill had failed to provide---Validity---Writ is for enforcement of fundamental rights and not for the entitlement of rights and if any equitable relief is sought from the Court then it can only be granted subject to provision of relevant law---Admittedly the petitioner/mill had approached the High Court under Art. 199 of the Constitution seeking directions against the respondents and while seeking such directions, Arts. 4 & 5 of the Constitution had to be kept in mind---It is inalienable right of every citizen to be treated in accordance with law as envisaged by Art. 4 of the Constitution but it is subject to Art. 5 of the Constitution which casts duty and inviolable obligation on every citizen to obey the Constitution and the law, and the relevant law, in the present case, was the SOP issued by the respondent/Food Department in the light of Policy introduced by the Food Department under the Punjab Government Rules of Business, 2011 ('the Rules')---Petitioner/Mill had failed to point out solid reasons to declare the SOP as an act without lawful authority or violative to fundamental rights, which otherwise had been issued by the lawful authority strictly under the Rules---Petition was dismissed, in circumstances.

Asadullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445 ref.

Malik Qamar Afzal, Advocate Supreme Court with Malik Sheharyar Afzal for Petitioner.

Malik Amjad Ali, Additional Advocate General along with Abid Aziz Rajori, Assistant Advocate General and Muhammad Ramzan, DFC, Attock for Respondents.

2024 M L D 243

[Lahore]

Before Shahid Jamil Khan, J

HAMNA QAISER---Petitioner

Versus

CHAIRMAN, PEMRA and others---Respondents

Writ Petition No. 5076 of 2023, decided on 2nd June, 2023.

Prevention of Electronic Crimes Act (XL of 2016)---

----S. 19---Phrase "with dishonest intention"---Scope---Unauthorized interruption---Breach of privacy---Uploading audio and video on social media---Original source, identification of---Petitioner was aggrieved of uploading of material on social media---Validity---Breach of privacy must be a felony and making such material public should be intolerable by the state by invoking criminal laws as well as by society by resorting to civil laws for damages---Laws dealing with electronic and print media were required to be reconciled and improved---Phrase "with dishonest intention" should not stop the regulator from taking action---In absence of source and legal purpose of using such material, dishonest intention was to be presumed and burden to proof otherwise would be on person committing such act---Regulator had to take prompt action under such provisions and then to ask for discharge of the burden of proof---Though electronic material was admissible as evidence but its standards were higher than the ordinary documentary and oral evidence---For ordinary documentary evidence, Court was to satisfy itself by examining the scribe and the person in possession of the document, otherwise such documentary evidence was not admissible---Any audio or video in absence of its source or ownership could not be taken as piece of evidence for proceedings against an accused---Person against whom such audio and video was leaked was a victim and not accused---High Court directed PTA to ensure criminal action, if such material was uploaded on social media from the territory of Pakistan---For any material uploaded from abroad, appropriate measures for getting such material removed must be intimated by reporting it to the handlers and regulators of respective websites or forums like Youtube, Twitter, Facebook etc.---High Court directed the authorities to make public the measures so taken besides making it an official record---Constitutional petition was adjourned accordingly.

Ms. Rida Noor and Usman Sana Khan Ateeq for Petitioner.

Mirza Nasar Ahmad, Additional Attorney General for Pakistan, Asad Ali Bajwa, Deputy Attorney General and Raja Kayani, Assistant Attorney General for Federation of Pakistan.

Malik Sohail Murshad for Respondent No.5-Lahore News.

Ch. Muhammad Usman for Respondent No.6-ARY News.

Ghulam Abbas Haral for Respondent No.7-Dawn News.

2024 M L D 276

[Lahore]

Before Aalia Neelum, J

GHULAM JAFFAR---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 29417 of 2022, decided on 10th November, 2022.

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

----S. 462-J---Interference, improper use or tampering with electric meter by domestic consumer---Appreciation of evidence---Benefit of doubt---Delay of three days in reporting the matter to the police---Accused was found involved in committing theft of household electricity by connecting his wires directly to the main line---There was almost a three days delay in lodging the complaint, which needed to be explained by the prosecution---In the prosecution's case, during the checking of electricity theft, the complainant's team removed the meter from the alleged premises---During cross-examination, complainant admitted that he had not proceeded to the place of occurrence---However, during his examination-in-chief, complainant stated that his staff removed the meter of the accused from the site of occurrence---After returning to the office, they reported the matter to him---Staff produced the meter before complainant, which he took into possession through a recovery memo, which was attested by officials as recovery witnesses---If this was so, what prevented complainant from lodging the complaint immediately after preparing the recovery memo---Absolutely no evidence on the prosecution's side was available to show the reason for three days delay in lodging the complaint---Complainant reported the incident based on hearsay evidence from the surveillance team as he had not witnessed that the accused was committing theft of the electricity by connecting wires with a direct line---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----S. 462-J---Interference, improper use or tampering with electric meter by domestic consumer---Appreciation of evidence---Benefit of doubt---Non-recovery of wire connected with the main line---Accused was found involved in committing theft of household electricity by connecting his wires directly to the main line---Record showed that the witnesses had clearly stated that they had removed only a meter of the accused from the place of the occurrence---However, the wire, connected directly with the main cable/line of Electric Power Company, was not taken into possession---Recovery memo of 2-meter wire was not made known to the court---Head Constable/Moharar did not depose a single word that he produced cable attached from the meter before the Investigating Officer and he detached the same from the meter and secured through recovery memo---Recovery memo was allegedly attested by two witnesses---Both the said witnesses were not examined, nor were they cited as prosecution witnesses---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----S. 462-J---Interference, improper use or tampering with electric meter by domestic consumer---Appreciation of evidence---Benefit of doubt---Accused was found involved in committing theft of household electricity by connecting his wires directly to the main line---As per the undated recovery memo prepared by complainant, it was only mentioned Single phase Meter No.181232 and nothing was mentioned in the recovery memo that where such Meter was installed---It was not mentioned as to who and when the said Meter was removed or whether the same was sealed after removal from the premises---Perusal of the recovery memo revealed that the consumer's name and the Meter number were changed from the one written earlier after putting 'whitener'---Seizure memo showed that the connection was in the name of son of accused---However, no documentary evidence was produced by the prosecution to establish that the accused was owner of the house---Line Superintendent had deposed during examination-in-chief that they removed the meter from the accused's premises---In the prosecution case, the premises where stolen electricity was used belonged to the accused---Complainant and other witnesses had not produced any proof that the premises belonged to the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----S. 462-J---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Interference, improper use or tampering with electric meter by domestic consumer---Appreciation of evidence---Benefit of doubt---Withholding the best piece of evidence---Scope---Accused was found involved in committing theft of household electricity by connecting his wires directly to the main line---Record showed that the Surveillance Team of Electric Power Company had not secured the wire allegedly connected with the main line nor produced it before complainant---Prosecution had withheld the best piece of evidence---Undoubtedly, the prosecution's duty was to lay before the Court all material witnesses and case properties secured during the investigation available to it to unfold its case---Non-production of necessary witnesses or material before the Court could be said to mean that the prosecution 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 accordingly allowed.

Mudassar Farooq for Appellant.

Imran Hamayoun Cheema, Legal Adviser GEPCO and Zaheer, ASI with Record.

2024 M L D 298

[Lahore]

Before Farooq Haider, J

KAMRAN KHAN---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 34019 of 2023, decided on 25th May, 2023.

(a) Punjab Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Power to arrest and detain suspected persons---Detention based on apprehension---Legality---Petitioner sought an order directing the Provincial Government to release his brother---Before passing a detention order of a person under S. 3 of the Punjab Maintenance of Public Order Ordinance, 1960, the competent authority must have reasons to believe that the said person, within its territorial jurisdiction, has acted, is acting, or is about to act in a manner prejudicial to public safety or the maintenance of public order---However, perusal of the available record reveals that allegation against the detenu is general in nature i.e. he was delivering speeches against Government of Pakistan, National Security Agencies and persuading the people to create law and order situation in the district but no solid or cogent evidence/material in order to establish the same was produced before the Deputy Commissioner---Furthermore, no audio/video recording of speech, voice transcript in this regard or exact wording in written form of the same was mentioned in the impugned order as well as reports and parawise comments and even any such like material/evidence was not produced before the court---Perusal of report of District Police Officer does not reflect any material to invoke subsection (1) of S. 3 of the Punjab Maintenance of Public Order Ordinance, 1960 except apprehensions---Apprehensions without any valid reasons and not supported by any cogent material cannot be allowed to be the basis for curtailing the rights, liberty or freedom of any citizen, which is guaranteed by the Constitution---Detenu was ordered to be released and the Constitutional petition was accepted.

(b) Punjab Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Art. 199---Power to arrest or detain suspected persons---Habeas corpus---Maintainability---Scope---Where the petitioner filed a Constitutional petition seeking release of his brother detained on the strength of an order under S. 3 of the Punjab Maintenance of Public Order Ordinance, 1960, the State objected to the maintainability of the petition due to non-filing of representation by the detenu before the Provincial government---Held; right to file petition of instant nature i.e. habeas corpus is remedy provided by the Constitution in all matters of illegal confinement as one of fundamental rights; it goes without saying that if arrest of a person for the purpose of "Preventive Detention" cannot be justified in the eyes of law, then there is no reason why said person should not invoke jurisdiction of High Court for his immediate release---Objection was turned down.

Muhammad Irshad v. Government of the Punjab and others 2020 PCr.LJ 206 rel.

Abdul Rauf v. Government of Punjab and others 2023 LHC 2697 ref.

(c) Maxim---

----'A communi observantia non est recedendum'---Scope---When law requires a thing to be done in a particular manner, it should be done in that manner otherwise same would be deemed as illegal.

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 ref.

Ch. Ali Murtaza for Petitioner.

Umar Arshad Butt, Assistant Advocate General, Punjab along with Ishtiaq, SI and Jameel Ahmad, Assistant Commissioner (HR, Co-ordination) office of Deputy Commissioner, Narowal for Respondents.

2024 M L D 309

[Lahore]

Before Tariq Saleem Sheikh, J

MUHAMMAD SALEEM and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 69238-B of 2021, decided on 23rd February, 2022.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Pre-arrest bail, confirmation of---Civil dispute---Allegation levelled in the FIR was that the complainant entrusted machinery worth Rs. 14,000,000/- to the accused and his father, which they misappropriated---Accused purchased a stone crushing plant and entered into a partnership with the complainant to run it---Complainant operated it for 19 months and incurred huge losses---Accused persons then took over and operated it for four months but could not give better results---Accused persons leased it out to third party which left after four months---Once again the accused persons took the charge of the crusher and got it repaired and upgraded---Both the sides blamed each other for the losses---Complainant filed a suit for rendition of accounts against accused persons and during the proceedings the parties referred the matter to an arbitrator for arbitration, who later delivered his award and accused had filed an application in the Civil Court for making it rule of court---Element of entrustment contemplated by S. 405, P.P.C. was conspicuously missing in the instant case---There was essentially a dispute between the partners regarding handling of the business and its earnings---Hence, S. 405, P.P.C. was not attracted---Moreover, it was also debatable whether it could be invoked even against second accused because he was working as a proxy for his father/accused and not on his own account, who was abroad---Thus, it appeared that the complainant had lodged the FIR to mount pressure on the other side---Bail petition was accepted and ad-interim pre-arrest bail already granted to the accused was confirmed, in circumstances.

R. Venkatakrishnan v. Central Bureau of Investigation (2009) 11 SCC 737; Velji Raghavji Patel v. State of Maharashtra AIR 1965 SC 1433; Debabrata Gupta v. S. K. Ghosh (1970) 1 SCC 521; Anil Saran v. State of Bihar and another (1995) 6 SCC 142; Abdul Hakim and 2 others v. The State and another PLD 1978 Karachi 359 and Kazim Ali Dossa v. Faisal Malik and 5 others 1980 PCr.LJ 818 rel.

Muzaffar Iqbal for Petitioner No.2 with Petitioner No. 2.

Ms. Rahat Majeed, Assistant District Public Prosecutor with Manzoor/ASI for the State.

2024 M L D 334

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

IRSHAD AHMED---Petitioner

Versus

SHAUKAT HUSSAIN KIYANI and others---Respondents

W.P. No. 1215 of 2020, decided on 10th October, 2023.

Punjab Rented Premises Act (VII of 2009)---

----S. 19---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Un-registered tenancy agreement---Mandatory provision, violation of---Petitioner/tenant was aggrieved of eviction order passed by Rent Tribunal and maintained by Lower Appellate Court on the ground that in case of unregistered tenancy agreement mandatory provisions of S. 19 of Punjab Rented Premises Act, 2009, were not followed---Validity---If tenancy agreement introduced by petitioner/tenant in his defence in application for leave to contest was not registered or it was not conforming to provisions of Punjab Rented Premises Act, 2009, Rent Tribunal could at the most, halt further proceedings in the matter and direct petitioner to pay penalty in terms of S. 9 of Punjab Rented Premises Act, 2009 within specified period of time---If such amount was deposited by petitioner/tenant within specified period, his application for leave to contest should have proceeded further and in case of failure, it should have been dismissed---Provision of S. 9 of Punjab Rented Premises Act, 2009 was not restricted only to application filed by respondent/landlord, more particularly the ejectment petition---Any application either by landlord or tenant, as the case could be, when brought before Rent Tribunal for enforcement of his rights under tenancy agreement not conforming to provisions of Punjab Rented Premises Act, 2009 could be proceeded after having a recourse to S. 9 of Punjab Rented Premises Act, 2009 by directing landlord or tenant to deposit the penalty---Rent Tribunal as well as Lower Appellate Court though formed concurrent opinion but it was tainted with patent illegalities---High Court set aside eviction orders passed by two Courts below for being illegal and unlawful and matter was remanded to Rent Tribunal to decide application for leave to contest afresh while taking into consideration section 9 of Punjab Rented Premises Act, 2009---Constitutional petition was allowed accordingly.

Rana Abdul Hameed Talib v. Additional District Judge, Lahore and others PLD 2013 SC 775; Mirza Book Agency through Managing Partner and others v. Additional District Judge, Lahore and others 2023 SCMR 1520 and Kh. Muhammad Islam v. Special Judge Rent and others PLD 2016 Lah. 652 rel.

Qazi Hafeez-ur-Rehman for Petitioner.

Muhammad Zahoor Kiyani for Respondent No. 1.

2024 M L D 359

[Lahore]

Before Aalia Neelum and Asjad Javaid Ghural, JJ

TAHA AZAAM ULLAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 27767, P.S.L.A. No. 41181 and Murder Reference No. 241 of 2019, decided on 26th June, 2023.

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

----Ss. 302(b), 324 & 34---Police Rules, 1934, R. 24.5(1)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of one hour and fifteen minutes in lodging the FIR---Consequential---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Incident took place on 28.06.2017 at 6.00 p.m. in the area which was at a distance of three farlang from the place of occurrence---Complainant reported the incident through written complaint at Police Station, after that FIR was registered at 07.15 p.m.---Complainant took one hour and fifteen minutes to report the incident to the police---Complainant deposed during cross-examination that after about fifteen minutes of the occurrence, he went to bazaar and got drafted a written complaint---Said witness deposed that police arrived at the place of occurrence after about one and half/two hours after the occurrence---Upon arrival of the police, complainant got written the application for registration of case and went to police station and then police came at the spot and brought the dead body---Investigating Officer deposed during examination-in-chief that on receiving the complaint, moved by complainant, on his dictation, FIR was generated through the computer system---However, the written complaint was not recorded in the FIR register, which threw doubt on the time of reporting the incident to the police---Police did not register FIR in the book/register kept for registration of cases and instead entered the complaint in the computer and assigned a number---No explanation had been furnished regarding how the FIR registration number and E-tag number appeared on that document---Said fact led to only one inference that the document was prepared later---Evidential value of the FIR would be reduced if it was made after the unexplained delay, particularly when the same was not entered in the printed Form as provided under R. 24.5(1) of Police Rules, 1934---Thus, the mandatory provisions of the law were departed from which created doubt about the truthfulness of the allegation levelled in the FIR---When the incident was reported to the police and unexplained holes were left in the prosecution story, the benefit of same must accrue to the accused---Circumstances established that the prosecution had badly failed to bring home a charge against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the spot not proved---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Investigating Officer prepared an inquest report, wherein the names of the complainant and eye-witness had not been mentioned in column No.4, and the inquest report was not signed by any of the eye-witnesses or the complainant---Although, the Investigating Officer had categorically asserted that he recorded the statements of the witnesses under S. 161 of Cr.P.C. and also made the investigation, which showed that the witnesses were not present at the place of occurrence---Complainant, after half an hour after the incident, went to the market and got drafted a complaint, and after that, he went to the police station to report the incident---Said deposition of the complainant revealed that before reporting the incident to the police, complainant managed two witnesses---Admittedly, one witness belonged to another district, which was about 70/80 kilometers, whereas other witness belonged to a place, which was 5/7 kilometers from the place of occurrence---Presence of both the said witnesses at the time of preparation of the inquest report at 07:15 p.m. on 28.06.2017 suggested that the FIR had been registered after due consultation and deliberation by the complainant and also created doubt regarding the actual time of proceedings of inquest taken by the Investigating Officer, as they were called by the complainant through a telephone call from their respective places--- Circumstances established that the prosecution had badly failed to bring home a charge against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of ten hours and forty five minutes in conducting the post-mortem examination not explained---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---On perusal of complaint, FIR, it revealed that the same was lodged at 07:15 p.m. on 28.06.2017, and postmortem was conducted by Medical Officer on 29.06.2017 at 06:00 a.m., with a delay of about 10 hours and 45 minutes from the time of registration of FIR---Prosecution did not explain the delay in conducting the postmortem examination---Circumstances established that the prosecution had badly failed to bring home a charge against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

Irshad Ahmed v. The State 2011 SCMR 1193 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---Benefit of doubt---Interested and related witnesses, evidence of---False implication---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Admittedly, the prosecution witnesses were interested and inimical towards the accused---Accused was the son of co-accused and brother of two acquitted accused persons---Complainant deposed during cross-examination that about six months earlier to the occurrence, he lodged FIR under S. 364, P.P.C., regarding the abduction of a witness against the co-accused and his sons---Similarly, the eye-witness deposed during cross-examination that a criminal case was registered against accused and his father etc regarding his abduction---Said case was registered by the complainant of the present case---So, all these facts suggested that both the prosecution witnesses were not only inimical towards the accused persons but were also closely related to the deceased, and they had reasons to implicate the accused persons falsely---Circumstances established that the prosecution had badly failed to bring home a charge against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empties---Inconsequential---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Per the prosecution case, the Investigating Officer deposed that on 28.06.2017, he collected 13 crime empties of 9MM pistol which were secured from the place of occurrence and on the same day he handed over a sealed parcel of the 13 crimes empties to Head Constable for onward transmission to the office of Forensic Science Agency---HC deposed that he handed over a sealed parcel of the 13 crimes empties to the Investigating Officer, on 03.07.2017---Investigating officer deposed that on 03.07.2017, he received a sealed parcel of the 13 crimes empties from Head Constable and deposited the same on the same day with the office of Forensic Science Agency---Investigating Officer deposed that he arrested accused on 14.08.2017---On 24.08.2017, accused got recovered a pistol 9-MM along with two magazines and two live bullets and on the same day, the Investigating Officer handed over a sealed parcel of the pistol 9-MM (P-4) to Head Constable for onward transmission to the office of Forensic Science Agency---Head Constable deposed that he handed over a sealed parcel of the pistol 9-MM to the Investigating Officer on 29.08.2017---Investigating Officer deposed that on 29.08.2017, he received a sealed parcel of pistol 9-MM from Head Constable and deposited the same on the same day with the office of Forensic Science Agency---Sealed parcel of case property was handed over to the Investigating Officer, but he had not stated that he received back pistol 9-MM and the 13 crimes empties from the office of Forensic Science Agency---Entire prosecution evidence was silent on that aspect of the case---Thus, there was no link evidence to prove that the pistol 9-MM recovered from the accused and 13 crime empties secured from the place of occurrence were again received back from Investigating Officer or any other Police Officer by the moharrar Malkhana, and the same were re-deposited in the Malkhana or handed over to the Moharrar---On 01.09.2018, 13 crime empties and on 15.11.2018, the pistol 9-MM were produced in the testimony of witnesses---Head Constable or any other prosecution witness had not stated that they collected 13 crime empties and pistol from the office of Forensic Science Laboratory and re-deposited the same with the malkhana---Thus, it casted doubt whether it was the same case properties i.e. pistol and crime empties respectively, that were recovered from the accused and secured from the place of occurrence, and, after that sent to Forensic Science Laboratory or whether it was case property of some other case---Prosecution did not prove that case property 13 crime empties and pistol were kept in safe custody and its benefit would go to the accused---Circumstances established that the prosecution had badly failed to bring home a charge against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324 & 34---Qanun-e-Shahdat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Bullet pulled from dead body not sent for forensics---Consequential---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Record showed that the Medical Officer, who conducted the postmortem of the dead body of the deceased, recovered one metallic bullet from the left lung and handed it over to the police---Said metallic body was neither sent to the Forensic Science Laboratory for its comparison with the pistol recovered at the pointing of the accused nor the same was exhibited in evidence of the prosecution---Thus, it was established from the evidence of Police Constable and postmortem report that Medical Officer recovered the metallic body from the left lung of the deceased and handed it over to the police, therefore, an adverse inference was to be drawn that had the metallic body been sent to Forensic Science Laboratory for its comparison then the said report would have been unfavorable to the prosecution---Circumstances established that the prosecution had badly failed to bring home a charge against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged that he along with his co-accused committed murder of the brother of complainant by firing---Motive behind the incident was that brother-in-law of the complainant was a Police Officer and was martyred in 2010---Property left by said Police Officer was illegally possessed and usurped by co-accused and his sons, and the issues relating to said property were being looked after by the widow of the deceased and brother of the complainant/ deceased; and due to said grudge, all the accused persons, with a common object, murdered the deceased---Prosecution case in that regard was vague and could hardly inspire confidence---Complainant disclosed during cross-examination that some other litigation was pending before the Court---About 15/20 days earlier to the murder of the deceased, a compromise was effected before District Collector regarding land left between the parties---Documentary evidence on the record revealed that no litigation was pending between the accused persons and the widow of deceased---Investigating Officer admitted during cross-examination that he had not interrogated widow of the deceased---Investigating Officer deposed during cross-examination that the motive was stated to be the property of widow of deceased but he did not record the statement of that widow in support of motive part---Complainant deposed during cross-examination that both wives of deceased and his children were alive but they did not state any of them as his witness; that however, they produced one of the wives of deceased during the proceedings before the police---Thus, an adverse inference was to be drawn within the meaning of Art. 129(g) of Qanun-e-Shahadat, 1984 that had widow of deceased appeared in the witness box she would have been unfavourable to the prosecution---Alleged motive was an afterthought and had not been proved by any credible evidence---Circumstances established that the prosecution had badly failed to bring home a charge against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

Lal Khan v. The State 2006 SCMR 1846 and The State and others v. Abdul Khaliq and others PLD 2011 SC 554 rel.

Ch. Muhammad Ashraf Kamboh, Amer Shahbaz Siddiqui, Ms. Maryem Yasin Khan and Sajid Hussain Chaudhary for Appellant.

Rana Ahsan Aziz, Additional Prosecutor General with Ashraf, ASI for the State.

Nasir-ud-Din Khan Nayyar for the Complainant.

2024 M L D 396

[Lahore (Rawalpindi Bench)]

Before Ch. Muhammad Iqbal, J

ZAHID KHAN and others---Petitioners

Versus

MUHAMMAD AHSAN and others---Respondents

C. R. No. 550-D of 2016, decided on 13th October, 2023.

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

----S. 54---Sale---Defined---Sale means transaction of any land with permanent transfer of title/ownership against payment of price in shape of money---Sale is transfer of ownership of immovable property in exchange for a price paid or promised or partly paid or partly promised---For such transaction, payment of price must be contemplated; same must be followed by delivery of possession---Mere registration of document of sale deed and attestation of mutation in favour of vendee amounts to mature title of vendee which is merely a subsequent event for fiscal purpose or to update official record.

Black's Law Dictionary; Muhammad Khuibaib v. Ghulam Mustafa (deceased) through LRs 2020 CLC 1039 and Muhammad Nazeef Khan v. Gulbat Khan and others 2012 SCMR 235 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 5 & 13---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Right of pre-emption---Talb-i-Ishhad, notice of---Proof---Withholding of evidence---Presumption---Respondent/pre-emptor filed suit for possession through pre-emption which was concurrently decreed in his favour by Trial Court and Lower Appellate Court---Validity---Witness of respondent/pre-emptor neither stated that he was handed over any notice/letter to affect service upon petitioner/defendant nor served the same upon him---Respondent/pre-emptor failed to prove service of notice of Talb-i-Ishhad--- Non-production of acknowledgment receipt (A.D) amounted to withholding of material evidence and such flaw had grave adverse effect on the case of respondent/pre-emptor---Witness of notice of Talb-i-Ishhad was also not produced by respondent/pre-emptor nor any explanation was furnished in that regard, which amounted to withholding of the best evidence and it would be legally presumed that had the witness been produced in evidence, he would have deposed unfavourably against respondent/pre-emptor and presumption under Art. 129(g) of Qanun-e-Shahadat, 1984, would go against him---Respondent/pre-emptor failed to prove service of notice of Talb-i-Ishhad---Both the Courts below committed misreading and non-reading of evidence and had also failed to apply correct law which rendered such dicta as not sustainable in the eyes of law---High Court under S. 115 C.P.C, had jurisdiction to interfere in perverse concurrent judgments and decrees of two lower fora---High Court in exercise of revisional jurisdiction set aside concurrent findings of facts by two Courts below and dismissed the suit filed by respondent/pre-emptor---Revision was allowed, in circumstances.

Muhammad Hashim v. Sona Khan and 5 others 2015 CLC 223; Muhammad Mansha and another v. Muhammad Nawaz 2014 MLD 1346; Allah Ditta through LRs and others v. Muhammad Anar 2013 SCMR 866; Munawar Hussain and others v. Afaq Ahmed 2013 SCMR 721; Muhammad Riaz v. Muhammad Ramzan 2023 SCMR 1305; Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762; Sardar Muhammad (deceased) through LRs v. Taj Muhammad (deceased) through LRs and others 2023 SCMR 1113; Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400; Naseem Ahmad and another v. Air Botswana (Pty) Ltd. and 5 others 1993 SCMR 647 and Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others 2016 SCMR 24 rel.

Malik Muhammad Asif and Waqas Sher Afzal for Petitioners.

Sh. Ahsan-ud-Din and Sh. Zulfiqar Ali for Respondents.

2024 M L D 413

[Lahore]

Before Sultan Tanvir Ahmad, J

ABDUL REHMAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No.25062 of 2020, heard on 22nd May, 2023.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 13, 15, 19 & 22---Eviction petition---Relationship of landlord and tenant, denial of---Oral tenancy---Scope---Petitioner (eviction petitioner)claimed that respondent /tenant had acquired possession of the premises from the purported previous owner, who had sold the premises to the petitioner through a sale-deed and purported previous owner at the time of sale told respondent/tenant that from then onwards he (occupant) would be tenant of the petitioner, who acknowledged the same---Eviction petition filed by the petitioner against the respondent (tenant) was concurrently dismissed---Stance of respondent (tenant/occupant) was that he was tenant of someone else who was original owner of the demised-property on the strength of an agreement in writing, drawn on stamp paper and registered with Rent Registrar---Validity---In order to prove the issue as to the existence of landlord and tenant relationship, the petitioner had adopted a certain claim/stance, however, in the entire ejectment petition no name of witness was mentioned in the presence of whom the alleged statements were made by purportedly previous owner or respondent/tenant---Nevertheless, the petitioner later introduced two witnesses of the said fact, who tendered their affidavits but one of the said witnesses had contradicted various parts of the very statement of the petitioner as a witness and failed to answer most of the important questions and kept stating that he had no knowledge as to those questions or facts; he though stated that respondent /tenant had acknowledged the tenancy or payment of the future rent to petitioner but contradicted the statement of petitioner as to the time of the alleged oral acknowledgement as well as number of persons present at that time---Not only the petitioner failed to mention names of witnesses of oral tenancy / acknowledgment by respondent / tenant in his leave and led evidence beyond his pleadings but at the same time the only witness produced by the petitioner had contradicted him, causing further damage to his case---Said witness further admitted that he was nephew of the petitioner and gave clear impression that he had stated as such only on account of that relationship---One other person who was also stated to be present at the material time was not produced for cross-examination, claiming that respondent-side had won him over---It was alleged by the petitioner that rent of two months (in the year 2012) was paid by respondent/tenant but he failed to prove the same through oral or documentary evidence---Falsehood to the extent of oral tenancy between petitioner and respondent/tenant or any acknowledgment of respondent/tenant in said regard was amply clear---On the contrary, the respondent/tenant, in support of his claim, brought on record rent-agreement and got the same duly exhibited, which registered document carried presumption of correctness, and the same was further supported by cogent and confidence inspiring evidence of his two witnesses---Thus, there was nothing available on record to establish that the purported previous owner and respondent/tenant had landlord and tenant relationship---Oral tenancy between the two was pleaded to make out the case that the petitioner had stepped into shoes of said previous owner, however, said oral tenancy could not be proved by producing any receipt or leading independent evidence---No illegality or irregularity had been noticed in the impugned judgments and orders passed by both the Courts below---Constitutional petition filed by the eviction petitioner was dismissed, in circumstances.

(b) Punjab Rented Premises Act (VII of 2009)---

----Ss. 2(d), 2(l), 13, 15, 19 & 22---Eviction petition---Relationship of landlord and tenant, denial of---Rent dispute---Rent Tribunal, jurisdiction of---Scope---Petitioner (eviction petitioner) on the strength of sale deed and mutation, claimed that previous owner of demised premises, who had rented out the premises to respondent , had sold out the premises to the petitioner---Eviction petition filed by the petitioner against the respondent (tenant) was concurrently dismissed on the basis that no relationship of landlord and tenant existed between the parties---Contention of the petitioner was that both the Courts below had ignored S. 2(d) of the Punjab Rented Premises Act, 2009 ('the Act, 2009') which recognized that any person having ownership of the premises or part thereof or share in joint khata, where the premises was situated could file ejectment petition---Validity---Combined reading of Ss. 13 & 15 of the Act, 2009 as well as definitions of landlord and tenant as per Ss. 2(d) & 2(l) of the Act, 2009 reflects that remedy of eviction under the Act, 2009 was available only when the landlord of the premises could first establish that one sought to be evicted had a relationship of tenant with such landlord---Eviction petition could be maintained upon expiry of tenancy, failure of payment of rent, breach of terms and conditions of tenancy agreement, violation by tenant of obligation under S.13 of the Act, 2009 and unauthorized use of premises or subletting without written consent, while all the grounds given in S.15 of the Act, 2009 required some violation by the tenant---If a person was not a tenant of the ejectment petitioner that meant no ground was available to such person to seek eviction of tenant---Jurisdiction of Rent Tribunals was provided to regulate the relationships of landlords and tenants, to provide a mechanism for settlement of their disputes in an expeditious and cost effective manner and for the matters connected thereto---Said jurisdiction was not available as an alternate to other jurisdictions provided in law or claims of possession through partition or disputed title or for that matter other claims that were required to be resolved by the Civil Courts---No illegality or irregularity had been noticed in the impugned judgments and orders passed by both the Courts below---Constitutional petition filed by the eviction petitioner was dismissed, in circumstances.

Ch. Abdul Waheed through L.Rs. v. Zahida Parveen alias Nagina and 5 others 2021 YLR 1973 ref.

Mst. Badarun Nisa v. Dr. Abdul Rehman and others PLJ 2017 SC 457 distinguished.

(c) Punjab Rented Premises Act (VII of 2009)---

----Ss.13, 15, 19 & 22---Eviction petition---Grounds---Property required for personal use---Not a ground in the Punjab Rented Premises Act, 2009---Eviction petitioner had set-up the number of grounds of eviction in relevant paragraph of his eviction-petition in which he had included the ground of requirement of property for personal use also, which (ground) was not available in the Punjab Rented Premises Act, 2009 whereas other grounds of default in payment of rent etc.were dependent on the relationship of landlord and tenant---Petitioner failed to establish said relationship between himself and respondent---Petitioner alleged that respondent was tenant of previous owner but he could not prove the same by leading dependable evidence---No illegality or irregularity had been noticed in the impugned judgments and orders passed by both the Courts below---Constitutional petition filed by the eviction petitioner was dismissed, in circumstances.

Ms. Kashwer Naheed for Petitioner.

Shehzada Mazhar for Respondent No.3.

2024 M L D 455

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

MUHAMMAD AURANGZEB and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 3 others---Respondents

Writ Petition No.4158 of 2023, decided on 13th December, 2023.

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

----S.12(2), O.V, Rr.16, 18, 19, 20 & 25 & O.IX---Ordinary mode(s) of service, non-compliance of---Substituted service through publication in newspaper---Scope and effect---Application under S. 12(2) of the Civil Procedure Code, moved by the defendants seeking annulment of the ex-parte decree against them, was accepted by the Trial Court and the revision petition filed by the plaintiffs/petitioners was dismissed by the Appellate Court---Contention of the petitioners was that since the defendants/ /respondents did not appear despite publication, so the Trial Court had rightly proceeded against them ex-parte, and that ex-parte decree was passed after observing all the codal formalities---Validity---Record revealed that the suit was instituted at Rawalpindi by the petitioners /plaintiffs mentioning that the respondents/ defendants were residents of Azad Kashmir---It appeared that initially for procuring the attendance of the respondents/ defendants, Trial Court directed the issuance of process but summons could not be issued due to non-deposit of process fee by the petitioners/plaintiffs, but, instead of proceeding against the petitioners on account of their failure to deposit the process fee, the Trial Court opted to issue proclamation in the newspaper under O.V, R.20 of C.P.C., 1908 as a mode of substituted service---Though O.V, R.20 of C.P.C., 1908 provided the mechanism of substituted service but before resorting to said provision of law it was incumbent upon the Court to first ensure the adherence to Rr. 16, 18 & 19 of O.V of the C.P.C, 1908---Provisions of Rr. 16, 18 & 19 of O.V of the C.P.C., 1908 were not illusory and it was bounden duty of the Court to make substantial compliance of the same before directing the substituted service in terms of O.V, R. 20 of C.P.C., 1908---Court for the said purpose had to satisfy itself that all the efforts to effect service in the ordinary mode had failed---Non-adherence to the mandatory provisions would render the process invalid and the edifice built thereon would automatically fall down---Respondents were ,admittedly, residing abroad since long---Rule 25 of O.V of C.P.C., 1908, dealt with service where defendant resided out of Pakistan---Glimpse of record made it abundantly clear that proper procedure was not observed in the course of effecting service of the respondents---No active or concrete effort was made for personal service---Resort to the substituted service in the circumstances was not only highly unwarranted but sketchy---Process of service was thus on the one hand tainted with procedural material irregularities and on the other fraught with illegalities---Thus, it was apparent that on the basis of invalid substituted mode of service the respondents were proceeded against ex-parte who were residing in England since long---Parties were though closely related but the petitioners did not mention the addresses of respondents abroad---Respondents were, thus, proceeded against ex-parte in an illegal and unlawful manner, which followed the ex-parte decree---On attaining the knowledge, the respondents moved a petition under S. 12(2), C.P.C., 1908 seeking annulment of the ex-parte decree on the ground that it was obtained through misrepresentation----There were sufficient grounds to show that ex-parte proceedings order followed by the ex-parte decree was not the outcome of due course of law---That was the reason that the Trial Court, in the first instance, allowed the petition under S.12(2) of the C.P.C., 1908 and set aside the ex-parte proceedings order as well as decree, which was further affirmed by the Appellate Court and rightly so---Constitutional petition was dismissed in limine, in circumstances.

Mrs. Nargis Latif v Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99; Haji Akbar and others v Gul Baran and 7 others 1996 SCMR 1703; WAPDA v. Ghulam Hussain 2000 CLC 530; Syed Sajjad Hussain Shah v. Messrs Federation of Employees Cooperative Housing Societies Ltd. through General Secretary 2003 CLC 1011 and Mehr Din through Legal Heirs v. Azizan and another 1994 SCMR 1110 ref.

(b) Constitution of Pakistan---

----Art.199(1)(a)(ii)---Writ of certiorari---Scope---Writ of certiorari in terms of Art.199(1)(a)(ii) of the Constitution has a very limited scope---Petitioners, in order to persuade the Court to exercise the extraordinary jurisdiction, have to demonstrate that the order or judgment being assailed is without lawful authority and suffers with material illegalities.

Amjad Khan v. Muhammad Irshad (deceased) through LRs 2020 SCMR 2155 and Chief Executive MEPCO and others v. Muhammad Fazil and others 2019 SCMR 919 ref.

2024 M L D 467

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD SARWAR alias BABAR---Petitioner

Versus

MUHAMMAD YASIN (DECEASED) through L.Rs. and others---Respondents

Civil Revision No.66655 of 2023, decided on 11th October, 2023.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Counter claims---Non-appearance before Sub-Registrar---Two suits for specific performance of two agreements to sell were filed by petitioner / plaintiff and respondent / defendant---Suit filed by respondent / defendant was decreed by Trial Court and the one by petitioner / plaintiff was allowed to get his earnest money returned with profit at bank rate---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court---Validity---Petitioner / plaintiff failed to prove his case as well as stance that on the target date he appeared before Sub-Registrar and got his attendance marked by submitting written application---Petitioner / plaintiff did not produce Sub-Registrar or any staff member of his office and he did not even mention in his application that he had brought remaining sale consideration or pay order or draft---Both the Courts evaluated evidence in true perspective and reached to a just conclusion, concurrently---High Court in exercise of revisional jurisdiction declined to disturb concurrent findings on facts, as the same did not suffer from any misreading and non-reading of evidence---Both the Courts below committed no illegality and irregularity, rather vested jurisdiction was aptly and justly exercised---Revision petition was dismissed, in circumstances.

Ijaz Ul Haq v. Mrs. Maroof Begum Ahmed and others PLD 2023 SC 653; Muhammad Farid Khan v. Muhammad Ibrahim and others 2017 SCMR 679; 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 Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13; Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21 and Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353 rel.

2024 M L D 485

[Lahore]

Before Ch. Muhammad Iqbal, J

JAVAID IQBAL BUTT----Petitioner

Versus

RIFFAT MAHMOOD GHAURI and others----Respondents

Civil Revision No.7548 of 2019, heard on 20th May, 2022.

Civil Procedure Code (V of 1908)---

----O.XXIII, R.2 & O. VII, R. 11---Limitation Act (IX of 1908), Ss.3, 9 & Art.113---Withdrawal of the suit with permission to bring a fresh one---Formal defect---Limitation---Civil Court accepted the application of the respondents/defendants for rejection of plaint on the ground of limitation---Appeal was also dismissed---Validity---Under S.9 of the Limitation Act, 1908, once time/limitation had begun to run, the subsequent disability or inability did not stop it---Under O. XXIII, R.2, C.P.C., when first suit was dismissed as withdrawn and second suit was filed, and even if permission was granted, that would not help the party to escape from applicability of limitation---Admittedly, the petitioner first filed suit on 25.07.2005 for permanent injunction against the defendants/respondents in respect of the suit property---Petitioner withdrew the said suit on 03.03.2010 with permission to file fresh one---Thereafter, on 16.03.2010 the petitioner filed suit for specific performance of agreement to sell dated 05.01.2005 in respect of the suit property after lapse of 05-years, 02-months and 11-days whereas under Art. 113 of the Limitation Act, 1908, the prescribed period of limitation to file a suit of specific performance of an agreement to sell was 03 years, as such, the suit of the petitioner was barred by time---Under S.3 of the Limitation Act, it was the duty of the Court to take cognizance regarding question of the limitation at any stage of trial whether the objection was raised by any party or otherwise and it should decide the point of limitation at the first instance and then proceed further with the trial of the case---Concurrent findings of fact were against the petitioner which did not call for any interference by the High Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction---Civil revision was dismissed being devoid of any merits.

Syed Athar Hussain Shah v. Haji Muhammad Riaz and another 2022 SCMR 778; Mst. Anwar Bibi and others v Abdul Hameed 2002 SCMR 144; Muhammad Sadiq and others v. Muhammad Mansha and others PLD 2018 SC 692; Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2022 SCMR 933 and Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 rel.

Ghulam Farid Sanotra for Petitioner.

Ijaz Ahmad Khan for Respondent No.1.

Jamshed Rehmat Ullah for Respondent No.4.

2024 M L D 502

[Lahore]

Before Muhammad Tariq Nadeem, J

MOHAMMAD ALI FARHAN HAMEED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.73736-B of 2021, decided on 17th May, 2022.

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

----S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Ad-interim pre-arrest bail, confirmation of---Allegation against the accused was that he usurped the amount of complainant while committing criminal breach of trust---Contents of FIR transpired that the alleged amount of Rs.1,78,80,000/- from 21.05.2020 to 3.12.2020 was given to the accused-petitioner, whereas, the crime report/FIR was got registered on 18.09.2021, after a delay of one year and fifteen days without explaining any sufficient reason, therefore, for the said reason, chances of petitioner's false implication with due deliberation after consultation could not be ruled out---From the facts and circumstances of the case, offence under S. 406, P.P.C was hardly attracted because there was no evidence on file that an amount of Rs.1,78,80,000/- was entrusted to the petitioner---As per narration of FIR, complainant handed over amount to the petitioner for the purchase of land for a property in her name but the petitioner neither purchased the land in the name of complainant nor returned her amount---Mere broken promise did not constitute the offence under S.406, P.P.C---Petitioner was appointed as Corporate Consultant, Training and Development in the company of complainant with monthly salary of Rs.900,000/- on 15.01.2018 and his service was confirmed on 18.06.2018---Allegedly, an amount of Rs.78,80,000/- was transferred in the account of petitioner through bank transaction as the same was paid as salary to the petitioner---Petitioner also annexed with present petition six salary slips through an application which manifested that Rs. 51,00,000/- was paid to the petitioner as salary---Complainant had not produced any proof of handing over the cash amount of Rs.10,000,000/- to the petitioner and investigation in that regard was also silent---Moreover, it was observed that matter between the parties was of family dispute because Nikah of complainant's brother was solemnized with daughter of the petitioner on 20.12.2020 and an amount of Rs. 51,00,000/- was fixed as Haq-ul-Mehr out of which, Rs. 50,00,000/- was deferred dower---Similarly in the column No.17 of NikahNama gold ornaments weighing 34 tolas valuing Rs.42,00,000/- were also given to the bride---As per FIR before the Nikah, from the amount of complainant's brother, a house was purchased and half portion of said house was transferred in the name of petitioner's daughter---Subsequently, dispute arose between the complainant's brother and petitioner's daughter and family suits were pending adjudication between them---Till the dispute between complainant's brother and petitioner's daughter, arose, the complainant had not tried to set the machinery of law into motion---Thus the complainant had apparently tingled a family dispute into criminal one which was not warranted by law---Petitioner was previous non-convict, he had already joined the investigation and according to the Investigating Officer, the investigation of the case was complete and reportedly there was no misuse of concession of pre-arrest bail, therefore, the petitioner had made out a case for confirmation of pre-arrest bail---Even otherwise, offence under S.406, P.P.C. did not fall within the prohibitory clause of S.497, Cr.P.C., and no useful purpose would be served by sending him behind the bars mere at the wish of the complainant till his release on post-arrest bail after few days---Petition was allowed and the ad-interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances.

Shakeel Ahmad v. The State and another 2012 MLD 1492; Tahir Hussain v. The State and others 2020 YLR 576; Khair Muhammad and another v. The State through PG Punjab and another 2021 SCMR 130; Shahid Imran v. The State and others 2011 SCMR 1614; Ghulam Ali v The State and another 2013 MLD 891; Muhammad Asim v. The State and another 2020 PCr.LJ 335 and Sajid Hussain alias Joji v. The State PLD 2021 SC 898 rel.

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

----Ss.497 & 498---Pre-arrest and post arrest bail---Merits of the case---Scope---Merits for grant of bail before arrest and after arrest are altogether different but while granting pre-arrest bail even the merits of the case could be touched upon.

Khair Muhammad and another v. The State through PG Punjab and another 2021 SCMR 130 rel.

Abid Saqi for Petitioner.

Hafiz Asghar Ali, DPG for the State with Hassan Javed Bhatti, S.P. (Inv.) Saddar Division, Lahore.

2024 M L D 534

[Lahore]

Before Shahid Bilal Hassan, J

Mst. BADAMI and others---Appellants

Versus

Mst. BUDHEE and others---Respondents

R.S.A. No.141 of 1987, decided on 21st March, 2022.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Qanun-e-Shahadat (10 of 1984), Arts.89(5) & 129(g)---Suit for declaration and possession of immoveable property---Inheritance, right of---Pedigreetable not proved---Appellants filed suit for declaration and possession alleging that they being collateral of the issueless deceased/original owner of the suit property were entitled to get his bequest but his widow got the suit property transferred in her favour---Respondent contested the suit on the ground that she being widow of the deceased was the only legal heir and as such was entitled to the entire estate, however she denied that appellants were collateral of the deceased---Suit was dismissed by the Trial Court and the appeal was also dismissed---Validity---Record showed that at trial stage and before the appellate Court appellants could not substantiate their stance by leading cogent and confidence inspiring evidence because the pedigree table produced by them did not establish their relationship to the propositus making them residuary---Pedigree table was produced later---Evidently, the pedigree tables were issued from the concerned authorities in India in the year 1985 and the same was in Indian language, so it was translated by Mr. "A"; meaning thereby that the said person was an important witness so as to substantiate the stance of the appellants but he was not produced in the witness box, for reasons best known to them, so adverse presumption arose against the appellants in view of Art. 129(g) of the Qanun-e-Shahadat, 1984, that had he appeared in the witness box, he would not have supported the stance of the appellants---Even, the appellant did not produce the passport or any other documentary evidence of said Mr. "A" to show and prove that he travelled from Pakistan to Indian from such and such date in the year 1985 despite the fact that allegedly he travelled twice to India; firstly for obtaining pedigree tables and secondly for getting the same translated---Furthermore, the pedigree tables produced by the appellants were different from one another, because pedigree table in plaint showed deceased owner as single son of Mr. "D"; the pedigree table attached with the suit disclosed Mr. "J" as brother of deceased owner besides widow and the pedigree table allegedly obtained from India showed four sons of Mr. "D" thus, the same could not be relied upon, because it casted aspersions about their authenticity---In the present case, the pedigree tables were not part of judicial record and even the same did not bear any certificate as required under Art. 89(5) of Qanun-e-Shahadat, 1984---In that view of the matter, the documents brought on record could not be said to have been duly obtained in accordance with law and could not be relied upon for decision of a matter with regard to inheritance---Appellants had failed to establish their relationship with deceased, thus, they had no locus standi---Appeal being meritless failed and same was dismissed, in circumstances.

Haji Sultan Ahmad through Leal Heirs v. Naeem Raza and 6 others 1996 SCMR 1729; Ahmad and others v. Allah Diwaya and others 1998 SCMR 386; Muhammad Naeem and others v. Ghulam Muhammad and others 1994 SCMR 559 and Mst. Mangti v. Mst. Noori and others 1995 CLC 210 rel.

Chaudhry Iqbal Ahmad Khan, Zeeshan Munawar and Jamil Asif for Appellants.

Muhammad Atif Amin, Chaudhry Rizwan Sarwar and Ayaz Munawar for Respondents.

2024 M L D 576

[Lahore]

Before Aalia Neelum and Asjad Javaid Ghural, JJ

ZULFIQAR ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.45587 of 2019 and Murder Reference No.161 of 2019, decided on 26th June, 2023.

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

----Ss. 302(b), 202, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, causing disappearance of evidence, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Accused were charged for committing murder of three persons of the complainant party by firing and due to such firing, fear spread in the village---Motive behind the occurrence was that two years prior to the occurrence, sister of male deceased was abducted by the accused, who contracted marriage with her inspite her of being already married---Accused had apprehension from deceased that he might cause harm to his sister and due to that revenge they committed that occurrence---Complainant/father of the deceased put appearance in the dock in the Court room and reiterated contents of the crime report---Eyewitness/brother of lady deceased and maternal uncle of male deceased supplemented the complainant on all material aspects of the occurrence---Both the witnesses were cross-examined at exhaustive length on different dates but they remained firm and consistent on all material particulars of the incident qua the date, time, place, mode and manner of the occurrence, the weapons of offence, the specific role played by them at the spot for causing fire arm injuries especially on the person of two deceased---Defence could not shatter their credibility---Circumstances established that the prosecution had proved its case against the accused "S" and "J" without any shadow of doubt---Appeal against conviction to the extent of said accused persons was accordingly dismissed.

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

----Ss.302(b), 202, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, causing disappearance of evidence, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Presence of the witnesses at the spot not doubtful---Accused were charged for committing murder of three persons of the complainant party by firing and due to such firing, fear spread in the village---Record showed that the complainant, being father of one of the deceased, was resident of the same village and his presence in front of the mosque could not be doubted---So far as the other eye-witness was concerned, though he was resident of some other village at the distance of eight miles yet his presence with his brother-in-law and visiting the house of his real sister, even without any specific cause, was not unusual---In our rural setup, the close kith and kin usually visit each other in their houses, spend time and even stay overnight without any specific object---In day time, travelling from one village to another was quite normal in remote areas---Even otherwise, if the evidence of such witness was excluded, deposition of the complainant was quite natural, straight forward and confidence inspiring, which was sufficient to believe the ocular account of the prosecution---Circumstances established that the prosecution had proved its case against the accused "S" and "J" without any shadow of doubt---Appeal against conviction to the extent of said accused persons was accordingly dismissed.

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

----Ss. 302(b), 202, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, causing disappearance of evidence, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Case of acquitted co-accused persons distinguishable from accused persons---Accused were charged for committing murder of three persons of the complainant party by firing and due to such firing, fear spread in the village---Record showed that the acquitted accused, who were shown to be armed with gun 12-bore, were alleged to have climbed over the roof-top of their house and made firing upon the witnesses of ocular account but they luckily escaped, however, fire shots hit the northern wall of a mosque---Case of the co-accused persons was quite distinguishable to the case of the accused persons for the reason that firstly they were declared innocent during investigation, being not present at the venue of occurrence on the fateful day and time---Secondly, no weapon of offence was recovered at their instance, and thirdly no injury was assigned to them, either on the deceased or the injured witness except some signs of firing, as alleged by the prosecution---In fact none of the Investigating officers noted/observed any such sign at the wall of the mosque---On the other hand, the accused persons were specifically assigned the role of making fatal fire shots, resulting into death of three innocent persons---In that scenario, the acquittal of co-accused had no bearing upon conviction and sentence of the accused persons in any eventuality---Circumstances established that the prosecution had proved its case against the accused "S" and "J" without any shadow of doubt---Appeal against conviction to the extent of said accused persons was accordingly dismissed.

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

----Ss. 302(b), 202, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, causing disappearance of evidence, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Considerable delay in conducting the postmortem examination upon the dead bodies of the deceased persons natural and fully explained---Accused were charged for committing murder of three persons of the complainant party by firing and due to such firing, fear spread in the village---Time consumption for postmortem examination of all the three dead bodies was hardly twelve hours whereas the distance between the place of occurrence and the Police Station was 33-kilometers in a remote area, therefore, the attraction of the Police Officers at the spot, preliminary inquiry, escorting the dead bodies to the mortuary, recording the statement of witnesses, collection of incriminating articles from the spot, preparing inquest reports and investigation from the people gathered there, took sufficient time for submission of the police papers for the purpose of postmortem examination---There were three dead bodies of one family lying at the spot and in that scenario, lapse of a few hours was quite natural and it could not be given any weightage adverse to the prosecution evidence---Circumstances established that the prosecution had proved its case against the accused "S" and "J" without any shadow of doubt---Appeal against conviction to the extent of said accused persons was accordingly dismissed.

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

----Ss.302(b), 202, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, causing disappearance of evidence, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Recovery of weapons of offence and crime empties---Reliance---Accused were charged for committing murder of three persons of the complainant party by firing and due to such firing, fear spread in the village---During investigation, Accused "S" led to the recovery of rifle 244-bore; accused "J" got recovered gun 12-bore and a Pump Action whereas accused "Z" got recovered a stain-gun---Said weapons were sent to the office of Forensic Science Agency on 24.07.2013 for comparison with crime empties i.e. five empties of 30-bore caliber, seven 44-bore caliber cartridges and six 12-G(bore) shot-shell and eight 44-missed rounds, which had already been deposited into the said office on 25.06.2013 i.e. three days prior to arrest of the accused persons---Report from the said office was received with the result that seven crime empties were found wedded with the rifle recovered at the instance of accused "S"; 2/2 shot shells were identified as having been fired from both gun single barrel and pump action, which were recovered at the instance of accused "J" whereas no empty of stain-gun was recovered from the crime scene and, thus, no comparison was conducted qua the stain-gun recovered at the instance of accused "Z"---Keeping in view the positive report of the Ballistic Expert, there was no legitimate exception to hold that the recovery of respective weapons of offence from accused "S" and accused "J" provided full corroboration to the ocular account---So far as recovery of weapon of offence from accused "Z" was concerned, no crime empty of stain-gun was secured from the place of occurrence and, thus, the same remained inconsequential---Circumstances established that the prosecution had proved its case against the accused "S" and "J" without any shadow of doubt---Appeal against conviction to the extent of said accused persons was accordingly dismissed.

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

----Ss. 302(b), 202, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, causing disappearance of evidence, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Motive proved---Accused were charged for committing murder of three persons of the complainant party by firing and due to such firing, fear spread in the village---Motive as set up by the prosecution was that sister of deceased being already married lady had eloped with accused "S" and contracted marriage with him two years prior to the occurrence without the consent/blessing of her brothers and parents---Accused persons were under constant threat at the hands of deceased to harm his sister and under that threat, they committed the occurrence---Motive part of the occurrence was proved by the prosecution through cogent and convincing piece of evidence rather it was admitted by the defence by putting certain questions during cross-examination upon the eye-witnesses as well as in their statements recorded under S. 342, Cr.P.C.---Circumstances established that the prosecution had proved its case against the accused "S" and "J" without any shadow of doubt---Appeal against conviction to the extent of said accused persons was accordingly dismissed.

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

----Ss. 302(b), 202, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, causing disappearance of evidence, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Defence plea---No witness to establish defence plea produced---Accused were charged for committing murder of three persons of the complainant party by firing and due to such firing, fear spread in the village---Accused "S" took a stance in his statement recorded under S.342, Cr.P.C., that on the day of occurrence, his real grandfather died and he along with his mother visited the village to attend the funeral ceremony of his maternal grandfather; that on seeing the accused party deceased along with his companion while armed with lethal weapons, launched murderous assault upon him at the resident of his father whereupon he made firing from inside the house in his self-defence and all the deceased received fire arm injuries as a result of indiscriminate firing of their companion assailants---Statement of the accused clearly showed that he had not denied the occurrence though with a difference stance of self-defence but he failed to produce any witness in support of his plea during investigation or before the Trial Court---Circumstances established that the prosecution had proved its case against the accused "S" and "J" without any shadow of doubt---Appeal against conviction to the extent of said accused persons was accordingly dismissed.

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

----Ss. 302(b), 202, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, causing disappearance of evidence, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Throwing a wider net---False implication---Accused were charged for committing murder of three persons of the complainant party by firing and due to such firing, fear spread in the village---Record showed that the case of accused "Z"was not at par with the case of the remaining two co-convicts being their father---Possibility of his false implication in the case in order to spread the net wide, could not be ruled out for more than one reasons---Firstly, said accused was shown armed with rifle but during investigation, the recovery of stain-gun was shown at his instance, which remained inconsequential---Secondly, no crime empty of stain-gun was recovered and secured from the place of occurrence---Thirdly, the fire shot attributed to the said accused on the person of deceased was found to be lower to upwards trajectory as against the ocular version showing that the deceased was standing in front of the said accused in the street at a close range---Ocular account was not in consonance with the medical evidence to that extent---In that view of the matter, prosecution evidence was doubtful to the extent of the said accused---Implication of the said accused, being father of the principal accused, seemed to be doubtful in order to spread the net wide---Circumstances established that the prosecution had failed to prove its case against the accused "Z" beyond shadow of doubt---Appeal against conviction of said accused was accordingly allowed.

(i) Criminal trial---

----Benefit of doubt---Principle---Prosecution has to stand on its own legs to prove the charge against an accused and the benefit of doubt, even if slightest, will favour the accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

(j) Criminal trial---

----Benefit of doubt---Principle---Even a single doubt if found reasonable, will entitle the accused to acquittal and not combination of several doubts is foundational principle of justice.

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

Barrister Salman Safdar for Appellants.

Hamayoun Rasheed and Ms. Salma Iqbal for the Complainant.

Ms. Maida Sobia, Deputy Prosecutor General for the State.

2024 M L D 597

[Lahore]

Before Farooq Haider, J

SHAHBAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.72433-B of 2023, decided on 31st January, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 376 & 293---Gang rape with a minor, sale etc., of obscene objects to young person---Bail, refusal of---Victim of the case supported case of the prosecution against the petitioner (accused) through her statement recorded under S.161, Cr.P.C.---Victim clearly levelled allegation of rape against the petitioner as well as his co-accused through her statement recorded under S. 164, Cr.P.C.---USB containing video of the alleged act had also been secured during investigation of the case and allegation levelled against the petitioner had been established after thorough investigation---Any reason for false implication of the petitioner in the case with such heinous allegation which had stigmatized life of the victim as well as honor of her family could not be referred to by counsel for the petitioner---Prima facie, reasonable grounds were available on the record to connect the petitioner with the commission of alleged offences and punishment of offence of rape with minor attracted the prohibition contained in S.497, Cr.P.C.---Persons involved in such like activities did not deserve any leniency rather they were liable to be dealt with iron hands in order to curb such like nefarious activities, falling in moral turpitude, from the society---Therefore, no case for grant of post arrest bail to the petitioner was made out---Bail petition was dismissed.

Shahid Rafiq Mayo for Petitioner.

Ms. Rahat Majeed, Assistant District Public Prosecutor for the State along with Mushtaq, ASI and Inayat Ali, ASI with record of the case.

2024 M L D 603

[Lahore]

Before Rasaal Hasan Syed, J

MANZOOR AHMAD---Appellant

Versus

AZAM ALI---Respondent

R.F.A. No.28434 of 2022, heard on 11th October, 2023.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 1 & 2---Limitation Act (IX of 1908), S. 19 & First Sched., Art. 64-A---Suit for recovery of money---Limitation---Oral acknowledgement---Effect---Appellant / plaintiff was aggrieved of dismissal of his suit by Trial Court---Validity---Amount was payable and had become due on 10-05-2009---Even if date on which cheque was presented and returned unpaid due to lack of funds in bank account of respondent / defendant was taken into consideration amount had become recoverable both as per date of cheque and also as per date of refusal of payment, and suit could therefore be instituted within three years till 05-07-2012 in terms of Art. 64-A of Limitation Act, 1908, which had not been filed on the face of it and was barred by time---Appellant / plaintiff did not claim any acknowledgment in writing on the part of respondent / defendant, nor did he append any or tender in evidence any such acknowledgement---Law did not recognize any oral acknowledgement of liability so as to claim benefit of S. 19 of Limitation Act, 1908---There was no written acknowledgement and plea of alleged extension of limitation was totally unwarranted and was correctly rejected---Suit was filed after 10 years from the date when amount was due and was barred by time---High Court declined to interfere in judgment and decree passed by Trial Court as there was no misreading or non-reading of evidence nor any error of law or jurisdiction could be pointed out---Appeal was dismissed, in circumstances.

Muhammad Jan and others. v. United Bank Ltd. 1987 CLC 1215 and Basharat Ali v. Riaz Noon 2019 YLR 2601 rel.

Waqar Ahmad Hanjra for Appellant.

Rizwan Rasool for Respondent.

2024 M L D 614

[Lahore]

Before Rasaal Hasan Syed, J

Yaar Gul Khan---Appellant

Versus

Returning Officer, PP-138, Sheikhupura and others ----Respondents

Election Appeal No. 697 of 2024, decided on 9th January, 2024.

Elections Act (XXXIII of 2017)---

---S. 63----Election dispute----Nomination papers, rejection of---Default in payment of government dues----Deposit of dues under protest----Effect----Appellant/candidate's nomination papers were rejected by Returning Officer due to outstanding government dues----During pendency of appeal before Election Appellate Tribunal, appellant/candidate had deposited the dues under protest----Validity----Amount subject of appeal would remain subject to final adjudication in the course of exercise of statutory authority within the hierarchy of jurisdiction in accordance with law----Expression of non-existence of any present liability was limited for the purposes of decision of appeal by Election Appellate Tribunal----Liabilities of Federal Board of Revenue were not direct subject matter of proceedings and rights of both the sides were safeguarded to have the underlying controversy thrashed out by concerned statutory fora in accordance with law----Election Appellate Tribunal set aside the order passed against appellant/candidate as the two instances of default which were informed to Returning Officer and resulted in rejection of nomination papers had adequately been addressed----Election Appellate Tribunal accepted nomination papers of appellant/candidate as order of Returning Officer had lost is efficacy----Election Appellate Tribunal directed Returning Officer to include name of appellant/candidate in revised list of validly nominated candidates of the constituency----Appeal was allowed, in circumstances.

Arshad Jahangir Jhoja for Appellant.

Muhammad Bilal Munir, Legal Advisor FBR with Abdul Rasheed Khan, Asst. Commissioner Inland Revenue, Zone-III, Lahore and Muhammad Ijaz, Returning Officer, PP-138, Sheikhpura-III for respondents.

Order

RASAAL HASAN SYED, J.---Through the instant appeal order dated 30.12.2023 of the Returning Officer has been assailed whereby nomination papers of the appellant presenting himself as a candidate for General Elections from PP-138, Sheikhupura-III were rejected.

1. The reasons for rejection as encapsulated by the order of the Returning Officer available at page 25 of the instant file reveals that two instances of default were identified prompting rejection of nomination papers. It transpired that a sum of Rs.6,688,750/- was outstanding towards FBR and an amount of Rs.476,448/- stood under the head of arrears of token tax for vehicles in the record of the Excise and Taxation Department, Government of Punjab. At the hearing of this appeal on three preceding dates i.e. 05.1.2024, 07.1.2024 and 08.1.2024 stance taken by the learned counsel, Mr. Arshad Jahangir Jhoja, Advocate as well as the senior learned counsel who appeared on 05.1.2024, Mr. Jahangir A. Jhoja, Advocate, on behalf of the appellant at the time of issuance of notice was that the outstanding dues of the Excise and Taxation Department had been paid. Corresponding receipts were placed on the file and that as to the purported liability outstanding in terms of the FBR unpaid dues reliance was placed on order dated 12.4.2019 of the Commissioner Inland Revenue (Appeals-III), Lahore in appellant's appeal No.11724 to take the stance that the entire liability recorded in the order of the Returning Officer to the tune of Rs.6,688,750/- was embodied in the assessment order which was subject matter of the said appeal that was set aside as such did not present an instance of active outstanding liability attracting such opprobrium.

2. On the input of the learned Legal Advisor Election Commission of Pakistan who said that as information qua default was obtained from the respective government departments upon request of the Election Commission of Pakistan to record any instance of default qua the candidates and, therefore, the respective representatives of the departments shall be in a better position as custodians of record to respond as to whether the stance taken before the Tribunal that default was cleared was factually accurate.

3. Notice was accordingly issued on 07.1.2024 to respondent Nos.2 and 3, the two respective heads of the department, namely, Chairman FBR and Secretary Excise and Taxation Department, Government of Punjab. Learned Law Officer of the Excise and Taxation Department under the instructions from the Deputy Director, Excise and Taxation Department yesterday affirmed the factum of discharge of the arrears of Motor Vehicle Tax outstanding against the appellant and recorded the statement that nothing was due from the appellant under the head of Motor Vehicle Tax after payment of arrears evidenced by the receipts of dues that may be placed on record copies whereof were duly supplied to the Returning Officer present throughout in these proceedings before the Tribunal in response to notice dated 05.1.2024.

4. Learned Legal Advisor FBR, however, under instructions from the departmental representative submitted that by virtue of order dated 23.8.2023 of the Commissioner (Appeals-VII) Inland Revenue, Lahore the liability of Rs.466,250/- was confirmed against the appellant which pertains to tax period 01.7.2016 to 30.6.2017 and had been outstanding for more than six months against the appellant that remained unpaid, therefore, would count as default. Learned counsel for the appellant expressed surprise at the passing of the said order by taking the stance that he was not aware that such an order has been made and also attempted to submit that in any case stay application had been filed which was pending. The stay application which was filed in the proceeding before the Commissioner (Appeals-VII) Inland Revenue, Lahore obviously could only cover the period till the adjudication by the said officer which resulted in affirmation of liability vide order dated 23.8.2023 as such was rendered infructuous and could not be of any use to appellant.

2024 M L D 638

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J.

Muhammad Usman Farooq---Petitioner.

Versus

Rawalpindi Medical University, Rawalpindi through Vice Chancellor and another---Respondents

W.P.No. 1132 of 2023, decided on 19th April, 2023.

(a) Educational institution---

----Internal governance and affairs of educational institution---Non-interference by Courts---Principle and exceptions---Procedure and conditions of admission for Bachelor of Medicine and Bachelor of Surgery (MBBS)---MBBS and BDS Prospectus For Admission to Government Medical and Dental Institutions of Punjab issued by the University of Health Sciences, Lahore, for session 2002-23, Sr. No.5---Petitioner was denied admission solely on the ground that on the target date, he failed to produce all the original documents himself as was required under the MBBS and BDS Prospectus For Admission to Government Medical and Dental Institutions of Punjab issued by the University of Health Sciences, Lahore, for session 2022-23 ('the Prospectus') and instead his father presented photocopies of the required documents---In the prospectus, a detailed procedure and conditions of admission were enumerated---Serial No.5 of the procedure and conditions of admission deals with joining of selected candidates, and clause-I of Serial No. 5 clearly manifests that a candidate who is selected for admission shall be informed through short message service (SMS)/Email---In compliance of the said condition, the petitioner was informed through letter dated 21st March, 2023, which was actually letter dated 21st January, 2023 whereby target date was also wrongly mentioned as 24th January, 2022, which was actually 24th January, 2023---Said letter was dispatched on 25th January, 2023 and delivered on 26th January, 2023---SMS was also conveyed to the petitioner on 24th January, 2023 at 12:58 pm (as is evident from relevant page of the petition, which was not seriously refuted by the respondents (University of Health Sciences Lahore and Rawalpindi Medical University)---It was thus evident without any hint of doubt that the petitioner was informed at the last moment and apparently it was impossible for him to meet the requirements for admission---Apparently, there was no fault on the part of petitioner but he was penalized stringently---There is no cavil that ordinarily courts exercise restraint in interfering with the internal governance and affairs of the educational institutions and keep their hands-off the educational matters and avoid dislodging decision of the university authorities but this is not a rule of universal application though it may be followed generally---Petitioner had thus duly made his case for issuance of writ to the respondents--- High Court directed respondents ( University of Health Sciences Lahore and Rawalpindi Medical University) to give admission to the petitioner in first year of MBBS sessions 2022-23 --- Constitutional petition was allowed , in circumstances

Yasir Nawaz and others v. Higher Education Commission and others PLD 2021 SC 745; Fakheryar Khan v. Agriculture University, Peshawar through Vice Chancellor and 6 others PLD 2016 Peshawar 266; Fatima Nadeem v. Province of the Punjab and others 2022 MLD 1922 and Tariq Mahmood v. Vice-Chancellor, University of the Punjab, Lahore and another 2022 MLD 155 ref.

(b) Constitution of Pakistan ---

----Art. 25-A---MBBS and BDS Prospectus For Admission to Government Medical and Dental Institutions of Punjab issued by the University of Health Sciences, Lahore for session 2002-23, Sr. No.5---Admission and procedure for Bachelor of Medicine and Bachelor of Surgery (MBBS)---Right to education ---In the present case, the petitioner duly qualified the 'MDCAT' and was on open merit list but due to late intimation by the Medical University itself, he was deprived of his fundamental right to education as guaranteed under Article 25-A of the Constitution---High Court directed respondents (University of Health Sciences Lahore and Rawalpindi Medical University) to give admission to the petitioner in first year of MBBS sessions 2022-23 ---Constitutional petition was allowed , in circumstances .

Mujeeb-ur-Rehman Kiyani for Petitioner.

Tariq Mahmood for Respondent No. 1.

Amjad Iqbal Ghauri for Respondent No. 2.

Date of hearing: 19th April, 2023.

Judgment

Mirza Viqas Rauf, J.---The petitioner namely Muhammad Usman Farooq having lustrous educational record after completing his higher secondary school education from Army Public School and College, Ordinance Road, Rawalpindi obtaining 1066 marks out of total 1100 with Grade A-1 appeared in the Medical and Dental College Admission Test (hereinafter referred to as "MDCAT") for Bachelor of Medicine and Bachelor of Surgery (MBBS). In the test, the petitioner secured 188 marks out of 200 and was ranked overall 95th in the merit list and was placed at serial No.45 in the list of Rawalpindi Medical University on merit list with an aggregate percentage of 95.7182. The petitioner thus chose Rawalpindi Medical University on his priority and deposited admission fee for first year MBBS session 2022-23 on 28th December, 2022. The grievance of the petitioner is that Rawalpindi Medical University issued call letter to him on 25th January, 2023 whereby he was directed to report on 24th January, 2023. The petitioner though reported but he was not allowed admission and was replaced with other students, who were below in the merit. To this effect, a representation was moved by the petitioner to the Vice Chancellor of the Rawalpindi Medical University but of no avail. Through instant petition, the petitioner is now seeking a direction to the respondents to give him admission in the first year of MBBS Session 2022-23 in Rawalpindi Medical University against open merit list.

1. This petition was admitted for regular hearing vide order dated 29th March, 2023. In response thereof, the respondents submitted their written statements wherein it is stance of respondent No.1 that after the start of admission process, a list of 322 candidates was received by the Rawalpindi Medical University from the University of Health Sciences, Lahore/respondent No.2. On 13th January, 2023 the information of all the selected candidates for admission in Rawalpindi Medical University, Rawalpindi was uploaded on University's Website, regarding instructions for admission process/prerequisites/list of original documents to be presented for admission. On 21st January, 2023, respondent No.1 also issued call letters to those students who had not reported till 21st January, 2023 as per instructions contained in prospectus for the sessions 2022-23 by University of Health Sciences wherein the students were directed to report to Rawalpindi Medical University with their original documents latest by 24th January, 2023. It is stance of respondent No.1 that the petitioner was also intimated through letter dated 21st January, 2023. On 26th January, 2023, University of Health Sciences, Lahore directed the Rawalpindi Medical University to submit the list of unreported students till closing hours, which was forwarded accordingly on the same date depicting the name of the petitioner as well.

2. On the other hand, stance of the University of Health Sciences, Lahore (respondent No.2) is that the petitioner since failed to report to the concerned University and deposit the original documents in accordance with the provisions of the prospectus for admission, thus he was excluded from the admission process.

3. I have heard learned counsel for the petitioner as well as learned counsel for the respondents universities at considerable length and perused the record.

4. There is no denial to the fact that the petitioner has earned distinctions in his short educational career and after completing his higher secondary school education with overwhelming aggregate of 96.90 %, he appeared in the "MDCAT" and obtained 188 marks out of 200. The petitioner, in view thereof, was placed at serial No.95 on open merit category test list by the University of Health Sciences and 45 in Rawalpindi Medical University open merit list with an aggregate percentage of 95.7182. As per his ranking, the petitioner opted for his admission in Rawalpindi Medical University and deposited admission fee for the first year MBBS Session 2022-23 on 28th December, 2022. All these facts are not in dispute. The petitioner is denied the admission solely on the ground that on the target date, he failed to produce all the original documents himself as was required under the MBBS and BDS Prospectus for admission to Government Medical and Dental Institutions of Punjab issued by the University of Health Sciences, Lahore for session 2002-23 and instead his father presented photocopies of the required documents.

5. In the prospectus, a detailed procedure and conditions of admission are enumerated. Serial No.5 of the procedure and conditions of admission deals with joining of selected candidates, which is reproduced below: -

6. Joining of Selected Candidates:

i. Candidates selected for admission shall be informed through SMS/Email. The candidates are advised to be vigilant and carefully check their email messages.

ii. Selected candidates will be required to download their college fee challan from the application portal generated by the BOP. They will be required to deposit the college fee in the nearest branch of BOP by due date mentioned on their fee challan. They can deposit the fee manually as well through online transaction. The candidates are not required to visit their respective colleges to deposit their fee.

iii. Those who fail to deposit their college fee within due date shall be excluded from the admission/upgradation process and shall have no right of admission into the said programme in the current session.

Bare perusal of the clause-i clearly manifests that a candidate who is selected for admission shall be informed through short message service (SMS)/Email. In compliance of the above condition, the petitioner was informed through letter dated 21st March, 2023, which was actually letter dated 21st January, 2023 whereby target date was also wrongly mentioned as 24th January, 2022, which was actually 24th January, 2023. This letter was dispatched on 25th January, 2023 and delivered on 26th January, 2023. An SMS was though conveyed to the petitioner on 24th January, 2023 at 12:58 pm as is evident from page 21 of the petition, which was even not seriously refuted by the respondents. It is thus evident without any hint of doubt that the petitioner was informed at the last moment and apparently it was impossible for him to meet with the requirements for the admission. Apparently, there was no fault on the part of petitioner but he was penalized stringently.

1. There is no cavil that ordinarily courts exercise restraint in interfering with the internal governance and affairs of the educational institutions and keep their hands-off educational matters and avoid dislodging decision of the university authorities but this is not a rule of universal application though it may be followed generally. Reference to this effect can be made to Yasir Nawaz and others v. Higher Education Commission and others (PLD 2021 Supreme Court 745). Relevant extract from the same is reproduced below: -

"9. Beside, the decision taken by the HEC is a policy one, and by now it is settled law in various jurisdictions that Courts should generally refrain from interfering in policy decisions taken by statutory bodies and authorities tasked with running the affairs of educational institutions and students, like the HEC. The rationale for the same is that matters of an academic nature necessitate the need for technical and professional expertise which may only be attained as a result of specialization and the experience of working with and in educational institutions. Courts are neither equipped with such expertise, nor do they possess the relevant experience that would allow for interference in such matters. However, it does not mean that the Courts would not step in at the request of the parties to ensure and ascertain whether or not minimum requirements of natural justice and principles of law have been complied with and whether a case of grave injustice has been made out. Also in cases where a principle of law has to be interpreted, applied or enforced with reference to or connected with education, the Courts would not hesitate in stepping in. Reference can readily be made to the cases of Muhammad Ilyas v. Bahauddin Zakariya University (2005 SCMR 961), Noor Muhammad Khan Marwat v. Vice-Chancellor (PLD 2001 SC 219) and Maharashtra State Board v. Paritosh Bhupeshkumar Sheth and others (AIR 1984 SC 1543)."

1. To this effect, case of Fakheryar Khan v. Agriculture University, Peshawar through Vice Chancellor and 6 others (PLD 2016 Peshawar 266) is also relevant wherein a Division Bench of Peshawar High Court held as under: -

2024 M L D 667

[Lahore]

Before Muzamil Akhtar Shabir, J

Ghulam Hussain ---Petitioner

Versus

Manzoor Hussain ---Respondent

C.R. No. 25657 of 2019, decided on 31st May, 2022.

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

----S.54---Specific Relief Act (I of 1877), S. 12---Agreement to sell immoveable property---Balance sale consideration---Petitioner/vendee was directed to deposit the remaining sale consideration amount of Rs. 1,27,50,000/- in the Court---Said order was assailed but appeal was dismissed---Validity---Record showed that the petitioner was directed to deposit the remaining unpaid consideration amount of Rs. 1,27,50,000/- in the Court---However, it was not mentioned that in case of non-deposit of the said amount either the stay order shall be recalled or the suit shall be dismissed---Order of deposit was independent of the portion of order relating to interim relief and at present stage did not apparently have any adverse effect on the main case as well for the reason that through the same order issues relating to merit of case were framed---Parties were directed to lead evidence on said issues, where-after the matter was to be decided after recording of evidence---Prima facie, no prejudice had been caused to petitioner by said order and the same could not be treated as adversely affecting the rights of the petitioner, hence, the order by trial court for deposit and judgment passed by the Appellate Court whereby said order was upheld, both were based on proper appreciation of facts of the case available on the record as to the amount of remaining payment and were well within discretionary jurisdiction of said courts---Petition, being devoid of merits, was dismissed.

Irfan Rasheed v. Muhammad Muazim and others PLD 2022 Lahore 372; Messrs Kuwait Nation Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171; Mst. Samina Riffat and others v. Rohail Asghar and others 2021 SCMR 7; Inayatullah Khan and others v. Shabbir Ahmad Khan 2021 SCMR 686; Muhammad Shafiqullah and others v. Allah Bakhsh Deceased through L.Rs. and others 2021 SCMR 763; Muhammad Jamil and others v. Muhammad Arif 2021 SCMR 1108; Muhammad Yousaf v. Allah Ditta and others 2021 SCMR 1241 and Muhammad Asif Awan v. Dawood Khan and others 2021 SCMR 1270 rel.

Iftikhar A. Chohan for Petitioner.

Naveed Khalid for Respondent.

Order

Muzamil Akhtar Shabir J.---Through this Civil Revision, petitioner has called in question order dated 06.11.2018 passed by Civil Judge Class-I, Daska whereby while deciding application for interim relief in the suit for specific performance filed by the petitioner trial court has imposed the condition of depositing of remaining sale consideration amount of Rs. 1,27,50,000/- in the Court upon the petitioner and has also called in question judgment dated 26.02.2019 passed by Addl. District Judge, Daska whereby appeal filed by the petitioner against the said order has been dismissed.

1. It is contended by learned counsel for the petitioner that without determining whether the remaining consideration amount is due against the petitioner direction cannot be issued against the petitioner to deposit the remaining amount. Besides, said amount according to the petitioner has been ordered to be deposited while deciding the application for interim relief and vide same order issues were framed wherein the matter relating to the agreement to sell and amount to be paid therein is yet to be proved by leading evidence, therefore, according to learned counsel for the petitioner there was no occasion to direct the petitioner to deposit the afore-referred amount.

2. On the other hand, learned counsel for the respondent has defended the impugned order by stating that Court directed the petitioner to deposit remaining amount in the Court as per his averments in plaint while deciding his application in accordance with law settled by Hon'ble Supreme Court of Pakistan as well as by this Court in various judgments and prays to uphold the impugned order.

2024 M L D 728

[Lahore]

Before Shahid Bilal Hassan, J

Muhammad Younis and others---Appellants

Versus

Mst. Dolat Bibi and others---Respondents

C.R. No. 620 of 2014, heard on 22nd July, 2022.

(a) Punjab Land Revenue Act (XVII of 1967) ---

----S. 42 (7)---Specific Relief Act (I of 1877) , Ss. 42 & 54---Suit for declaration and permanent injunction---Sale Mutations---Proof---Subsection (7) of S. 42 of Punjab Land Revenue Act, 1967, binds the Revenue Officer, who is going to attest the mutation, to ensure the presence of a person whose right is going to be acquired by such transaction---Said provision of law also requires the identification of such person by two respectable persons, however, in the present case, neither the disputed sale mutations carry signatures or thumb impressions of the vendors/petitioners nor the petitioners/vendors were identified at the time of attestation of the mutation and even concerned Lumberdar was not produced by the respondents/defendants---All said facts establish the non-appearance of the petitioners/plaintiffs and non-identification at the time of attestation of the disputed sale mutations; therefore, the disputed sale mutations were attested in violation of subsection (7) of S. 42 of the Punjab Land Revenue Act, 1967---High Court set-aside the impugned judgments and decrees passed by the both the Courts below , consequently the suit instituted by the petitioners stood decreed as prayed for---Revision filed by the plaintiffs was allowed, in circumstances .

(b) Punjab Land Revenue Act (XVII of 1967)

---S. 42---Specific Relief Act (I of 1877) , Ss. 42 & 54---Suit for declaration and permanent injunction---Mutation entry---Scope ---Sale transaction---Proof---Mutation entry is not a document of title, and of itself does not confer any right, title or interest, and the burden of proof lies upon the person, in whose favour it was attested to establish the validity and genuineness of transfer in his/her favour---If the foundation is illegal and defective then entire structure built on such foundation would have no value in the eyes of law---Once a mutation is challenged the party that relies on such mutation(s) is bound to revert to the original transaction and to prove such original transaction which resulted in the entry or attestation of such mutation(s) in dispute---However, in the present case, the respondents / defendants had failed to plead and prove the time, date, place and names of witnesses in whose presence such original transaction of sale took place inter se the petitioners/ plaintiffs and respondents / defendants because the written statement of the respondents was silent in said regard---Respondents failed to establish their case that the disputed mutations were sanctioned legally---High Court set-aside the impugned judgments and decrees passed by the both the Courts below , consequently the suit instituted by the petitioners stood decreed as prayed for---Revision filed by the plaintiffs was allowed, in circumstances .

Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688 and Province of Sindh through Secretary and 2 other v. Rahim Bux and others 2022 CLC 2063 ref.

(c) Punjab Land Revenue Act (XVII of 1967)

----S. 42 (7)---Specific Relief Act (I of 1877) , Ss. 42 & 54---Suit for declaration and permanent injunction---Mutation entry, challenging of Possession of the party---Proof---Respondents / defendants failed to establish by leading unimpeachable and confidence inspiring evidence that the possession of the suit- property was delivered in pursuance of the disputed sale mutations, rather it was admitted and established fact on record that the possession was with them in pursuance of purported pledge mutation and not being owner of the suit Land---Said fact was also an admitted one that one of the respondents (deceased) was a Patwari of the area, so if for the sake of arguments it was admitted that the respondents were in possession of the suit property, it could not be ruled out that the said respondent(Patwari) managed the entry of possession in Khasra Girdawri against the physical possession at spot---Thus, the disputed sale mutations in favour of the respondents could be result of collusion with the revenue staff---High Court set-aside the impugned judgments and decrees passed by the both the Courts below , consequently the suit instituted by the petitioners stood decreed as prayed for---Revision filed by the plaintiffs was allowed, in circumstances .

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

----Art. 95 ---Punjab Land Revenue Act (XVII of 1967) , S. 42 (7)---Specific Relief Act (I of 1877) , Ss. 42 & 54---Suit for declaration and permanent injunction---Fraud, alleging of ---Limitation---Evasive denial---Scope---Article 95 of the Limitation Act, 1908, provides that while seeking some relief, if fraud is alleged, the period of limitation will be three years which will commence to be computed from the date of knowledge ---Date of knowledge, in the present case, as per version of the petitioners/plaintiffs was three months prior to the institution of the suit, which could not be rebutted by the other side through solid and cogent evidence rather it was only evasively denied while submitting written statement and it was a settled principle of law that evasive denial was not a denial---Therefore, in the light of Article 95 of the Limitation Act 1908, the suit instituted by the petitioners was well within time---High Court set-aside the impugned judgments and decrees passed by the both the Courts below , consequently the suit instituted by the petitioners stood decreed as prayed for---Revision filed by the plaintiffs was allowed, in circumstances .

(e) Civil Procedure Code (V of 1908)

----S. 115---Punjab Land Revenue Act (XVII of 1967), S. 42 (7)---Specific Relief Act (I of 1877) , Ss. 42 & 54---Suit for declaration and permanent injunction---Revisional jurisdiction of the High Court---Scope ---Mis-reading /non-reading of evidence---Validity---Both the Courts below failed to adjudicate upon the matter in hand by appreciating law on the subject; thus, the Courts below misread and non-read evidence of the parties and when the position was as such, High Court was vested with ample jurisdiction and authority to undo the concurrent findings in exercise of revisional jurisdiction under section 115, Code of Civil Procedure, 1908---High Court set-aside the impugned judgments and decrees passed by the both the Courts below , consequently the suit instituted by the petitioners stood decreed as prayed for---Revision filed by the plaintiffs was allowed, in circumstances .

Mst. Nazir Begum v. Muhammad Ayyub and another 1993 SCMR 321; Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630; Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001; Muhammad Khubaib v. Ghulam Mustafa (deceased) through LRs 2020 CLC 1039- and Muhammad Ali v. Sohawa deceased through LRs. and others 2019 CLC 626 L. ref.

Sardar Muhammad Ramzan for Petitioners.

Sohail Shafique and Ambar Abid for Respondents Nos.1, 2(ii) to 2(vii).

Muhammad Farooq Ahsan, vice counsel for respondent Nos.2-vii(a)(b).

Mian Abdul Aziz and Fazal-ur-Rehman for respondent No.3.

Respondents Nos.2(i)(iv) ex parte.

Judgment

SHAHID BILAL HASSAN, J:---Succinctly, the petitioners instituted a suit for declaration alongwith permanent injunction maintaining therein that about 20 years ago petitioners Nos. 1 and 2 borrowed some amount from Musawar Hussain respondent for their personal use who asked them to pledge their land measuring 14-kanals with his wife respondent No. 1. In this way pledge mutation No.234 was attested on 31.07.1986 in favour of respondent No.1. Muhammad Younis petitioner again borrowed some amount for which additional pledge mutation No.247 dated 07.02.1987 was attested. Later on, when the petitioners asked the respondents to receive amount on 10.11.1988 and get the land redeemed, respondent No.2 got attested one mutation for redemption and two mutations of sale in collusion with the revenue department in his favour and on 27.03.1990 respondent No.2 through another sale mutation transferred 2-kanals land in favour of Muhammad Iqbal respondent No.3 who alienated the same to respondent No.1 vide mutation No.415 dated 24.08.1995. It is maintained that respondents have committed fraud with the petitioners, therefore, all the mutations are against law and facts, ineffective upon the rights of petitioners and are liable to be cancelled. The petitioners came to know about the alleged fraud three months before filing of the suit upon checking the revenue record. The contents of plaint were controverted by respondents Nos.1 and 2 by filing of written statements and raised preliminary as well as legal objections. However respondent No.3 did not appear and he was proceeded ex-parte vide order dated 18.10.2006. The learned trial Court, out of the divergent pleadings of the parties, framed as many as eight (8) issues including "Relief". The petitioners produced Muhammad Younis (PW-1), Muhammad Sharif (PW-2), Abdul Ghafoor (PW-3), Abdul Ghafar (PW-4) and Zulfiqar (PW-5). The petitioners also produced documentary evidence in the shape of exhibits P-1 to P-15. The respondents produced Ghulam Sarwar (DW-1), Abdul Haque (DW-2), Ghulam Murtaza (DW-3), Nawab Din (DW-4), Khadim Hussain (DW-5), Musawar Hussain (DW-6), Zafar Ali Girdawar (DW-7) and Muhammad Ishaque (DW-8). In documentary evidence they produced exhibits D-1 to D-12. The learned trial Court after giving issue-wise findings vide impugned judgment and decree dated 26.11.2009 dismissed the suit. The petitioners being aggrieved preferred an appeal but the same was dismissed vide impugned judgment and decree dated 26.06.2010; hence, the instant revision petition.

1. Heard.

2. Subsection (7) of section 42 of the Land Revenue Act, 1967 binds the Revenue Officer, who is going to attest the mutation, to ensure the presence of a person whose right is going to be acquired by such transaction. The said provision of law also requires the identification of such person by two respectable persons. However, in the instant case, neither the disputed sale mutations carry signatures or thumb impressions of the vendors/petitioners nor the petitioners/vendors were identified at the time of attestation of the mutation and even Sarfraz Lumberdar was not produced by the respondents. All these facts establish the non-appearance of the petitioners and non-identification at the time of attestation of the disputed sale mutations; therefore, it can safely be held that the disputed sale mutations were attested in violation of subsection (7) of Section 42 of the Act ibid.

3. In addition to the above, it is a settled principle of law that mutation entry is not a document of title, which by itself does not confer any right, title or interest, and the burden of proof lies upon the person, in whose favour it was attested to establish the validity and genuineness of transfer in his/her favour. It is also a well settled law that if the foundation is illegal and defective then entire structure built on such foundation would have no value in the eyes of law. It is a settled principle of law that once a mutation is challenged the party that relies on such mutation(s) is bound to revert to the original transaction and to prove such original transaction which resulted in the entry or attestation of such mutation(s) in dispute. However, in the present case, the respondents have miserably failed to plead and prove the time, date, place and names of witnesses in whose presence such original transaction of sale took place inter se the petitioners and respondents because the written statement of the respondents is silent in this regard. When the position is as such, it can safely be held that the respondents have miserably failed to establish their case that the disputed mutations were sanctioned legally. Reliance in this regard is placed on Muhammad Akram and another v. Altaf Ahmad (PLD 2003 Supreme Court 688) and Province of Sindh through Secretary and 2 others v. Rahim Bux and others (2022 CLC 2063).

2024 M L D 756

[Lahore]

Before Masud Abid Naqvi and Ch. Muhammad Iqbal, JJ

Faiz Ahmad through legal their and others---Petitioners

Versus

Chairman Federal Land Commission, Islamabad and others---Respondents

C.R. No. 254943 of 2018, decided on 7th December, 2023

Land Reforms Regulation, 1972 (MLR NO. 115 of 1972)---

----Para. 18 (3)---Constitution of Pakistan, Art. 199---Constitutional petition---Resumed land, allotment of---Prohibited Zone---Petitioners assailed orders of Federal Land Commission, allotting resumed state land to respondents under paragraph 18(3) of Martial Law Regulation 115 of 1972---Validity---Respondent-authorities did not consider command of the notification as well as law on the subject while deciding matter in issue---Orders of allotment of land falling within prohibited zone were passed in clear violation of the notification as well as law on the subject---Allotments of surrendered state land falling within the prohibited zone were patently illegal and liable to be set aside---Courts of law are custodian of public properties, assets or interest and while dealing with matters relating to such properties/assets or interests, it is inalienable obligation of Courts to be very careful, cautious and assure itself to the extent of certainty that no mischief is being played with State assets---Extraordinary obligation is placed upon Courts to keep themselves abreast with law and facts of the case and when certain material facts are unearthed before it then matter should be decided as per law without being influenced by respective pleadings of parties---High Court set aside the orders passed by respondents / authorities regarding allotment of land in question in favour of any party---High Court declared that land in question was situated within the limits of prohibited zone and could not be allotted permanently to any person or tenant---High Court directed the authorities to retrieve possession if either party of the case was in possession of the land in question and also recover Tawan as per law---Constitutional petition was allowed accordingly.

Muhammad Israfeel and Others v. The Province of Punjab and Others 2021 MLD 313; Al-Shafique Housing Society v. P.M.A PLD 1992 SC 113; Provincial Government through Collector, Kohat and another v. Shabbir Hussain PLD 2005 SC 337 and Abdul Haq Indher v. Province of Sindh 2007 SCMR 907 rel.

Barrister Naseem Sabir Ch. and Nasir Ahmad Awan for Petitioners (in W.P. No. 247224 of 2008).

Rana Sher Zaman Akram, Addl. Advocate General along with Mahboob Ali Shaukat, Naib Tehsildar.

Sardar Muhammad Iqbal Athar Khan Khetran for Respondents Nos. 5 and 6.

Mian Muhammad Hussain Chotya and Noor Ahmad Malik for respondent No. 7.

Rana Zulfiqar Ali, Federal Land Commissioner.

Date of hearing: 22nd November and 7th December, 2023.

Judgment

CH. MUHAMMAD IQBAL, J:---Through this single judgment, we intend to decide the titled Writ Petition along with Writ Petition Nos.13725/2021, 247224/18, 13769/2021, 13792/2021, 13782/2021, 13775/2021 as common questions of law and facts are involved in these writ petitions.

1. Through these petitions, the petitioners have challenged the vires of order dated 15.10.2018 passed by the Member, Federal Land Commission, Islamabad whereby resumed state land measuring 230-Kanals 08-Marlas was allotted to Muhammad Sharif, Manzoor Ahmad and Bashir Ahmad [respondents Nos.5 to 7] with equal share under Paragraph 18(3) of MLR 115/1972.

2. Brief facts of these writ petitions are that land measuring 230-Kanals 08-Marlas situated in village Amin Kot, Tehsil Depalpur, District Okara was resumed from the declarant, Abdul Samad Khan. The said land was allotted to Muhammad Ali alias Mumma son of Jamal, Muhammad Ashiq son of Ameera and Muhammad Sharif son of Mehmood by Deputy Land Commissioner vide order dated 05.12.1998. The said order was challenged in appeals by different persons before the Land Commissioner who vide order dated 14.07.1999 accepted the said appeals and passed direction to the appellants in the said case to submit their applications on the prescribed forms before the Deputy Land Commissioner, Okara for allotment of the surrendered land and further directed to decide the same in accordance with law as per provisions of Paragraph 18 (3) of MLR-115/1972.

Muhammad Ali alias Mumma and others challenged the said order through revision petitions before the Chief Land Commissioner, Punjab, who vide order dated 12.09.2000 accepted the petitions and remanded the matter to the Deputy Land Commissioner, Okara to decide the matter afresh with the direction that allotment should be made after due publicity and inviting applications from the eligible tenants. The said order was challenged through revision petitions before the Federal Land Commission who vide order dated 12.05.2001 maintained the order of Chief Land Commissioner.

Whereafter as many as 11 persons applied for allotment of the aforementioned surrendered/ resumed land. The Deputy Land Commissioner allotted said land to Muhammad Yousaf, Muhammad Iqbal and Muhammad Usman vide order dated 27.03.2002. Against the said order, Muhammad Ali alias Mumma, Muhammad Ashiq, Muhammad Sharif, Muhammad Bashir, Bashir Ahmad, Muhammad Hussain and Faiz Ahmed filed separate appeals before the Land Commissioner, Okara who set aside the allotment order dated 27.03.2002 passed by the Deputy Land Commissioner, Okara vide order dated 07.12.2005 holding that Muhammad Yousaf and others were not tenants of any landowner during crucial crops i.e. Kharif 1971 and Rabi 1972, rather their names have been entered in Girdawari register by way of forgery and the names of tenants were incorporated on the basis of so called girdawari. He held that the matter needs to be probed thoroughly and thus he by setting aside the order dated 27.03.2002 of the Deputy Land Commissioner, Okara remanded back the matter to him with the direction to make thorough inquiry and then pass order as per law. The said order was assailed through five revision petitions by Manzoor Ahmed and Bashir Ahmad and others before the Chief Land Commissioner, Punjab who dismissed the said revision petitions vide order dated 15.02.2010. Against the said order, eight revision petitions were filed before the Chairman, Federal Land Commission, Islamabad who vide order dated 09.09.2011 set aside the aforementioned orders and allotted the land to Bashir Ahmad and Manzoor Ahmed. The said order was assailed by Muhammad Yousaf and others through Writ Petition No.21947 of 2011 and this Court vide order dated 30.05.2016 remanded the matter to the Chairman, Federal Land Commission, Islamabad to decide the same afresh as per law. In compliance of said direction, the Member, Federal Land Commission, Islamabad vide impugned order dated 15.10.2018 allotted land measuring 230-Kanals 08-Marlas in equal share to Muhammad Sharif son of Mahmood, Manzoor Ahmad son of Barkat Ali and Bashir Ahmed son of Barkat Ali being senior tenants of the adjoining mouza. Hence, these writ petitions.

1. We have heard the learned counsel for the parties and have gone through the record.

2. Admittedly, as per report submitted by the Assistant Commissioner/Collector Sub-Division Depalpur, the resumed land measuring 230-Kanals 08-Marlas comprising Khewat No.14, Khatooni No.30, Khasra Nos.1/23, 24, 25 3/25 4/1, 2,3,4,5,20 5/2, 3,4,5,9/1, 19,6/12 7/25, 11/17, 12/1,21 13/9, 12 14/4, 15/11, 17/19, 18/4, 19/4, 12 20/9, 12 of Mouza Amin Kot Tehsil Depalpur, District Okara is situated within the prohibited zone as it falls within seven (7) KM, from Municipal Committee, Haveli-Lakha, Tehsil Depalpur. For ready reference, the aforesaid report is reproduced as under:-

In pursuance of court's direction dated 22 11 2023. I have the honour to submit the requisite report, which is as under:-

1. As per stuffing of report of revenue hierarchy/Tehsi ldar, Depalpur, state land measuring 230- kanals 8-marlas comprising khewat No 14 khatuni No 30 khasra Nos 1/23,24,25 3/25 4/1,2,3,4,5.20 5/2,3,4,5,9/1,19, 6/12 7/25, 11/17, 12/1 21 13/9, 12 14/4 15/11, 17/19, 18/4, 19/4 12 20/9,12 is owned by provincial government Baqaya Sarkar falling in Mauza Amin-kot, tehsi l Depalpur district Okara.

2. Aforesaid piece of state land falls within prohibited zone, which is seven (7) KM , away from Municipal Committee, Haveli-Lakha, tehsil Depalpur.

3. Submitted please.

Assistant Commissioner/ Collector Sub-Division, Depalpur"

The above said report has not been challenged or got reversed by any party and the said report has attained status of finality, thus, as per notification dated 12th December, 1972 Martial Law Regulation No.115 the property which is situated within prohibited zone as provided in the Colonies Department's Circular memorandum No.3024-72/3946-CLIII dated 12th December, 1972 cannot be permanently allotted under Paragraph 18(3) of Martial Law Regulation 115. For ready reference, said notification is reproduced as under:-

"Letter No. ASR-11-3456-73/2687-LC (II), dated the 5th July, 1973, from the Secretary, Punjab Land Commission, to all Deputy Land Commissioners and Land Commissioners.

SUBJECT:- AREA AROUND LARGE TOWNS RESUMED UNDER MARTIAL LAW REGULATION 115.

I am directed to state that certain areas around large towns have been resumed under Martial Law Regulation 115 which are reported to be untenanted. A question has arisen whether such areas should be allotted under paragraph 18 (3) of Martial Law Regulation 115. Since these areas are very valuable and are likely to be required for extension of abadis or public purposes etc., it has been decided that all areas resumed under Martial Law Regulation 115 which are untenanted and fall within the prohibited zones as given in the Colonies Department's Circular memorandum No. 3024- 72/3946-CL-III, dated the 12th December, 1972 and noted below shall not be permanently allotted under paragraph 18 (3) of Martial Law Regulation 115 but shall be kept in reserve for extension of abadis and other public purposes etc.

1. The following is the limit for prohibited zones:- In the case of-

| | | | --- | --- | | 1. Corporations. = | 10 miles from the outer limits of the Corporation. | | 2. First Class Municipal Committees = | 5 miles from the outer limitsof the Municipal Committee. | | 3. Second Class Municipal Committees = | 3 miles from the outer limits of the Municipal Committee | | 4. Town Committees. = | 2 miles from the outer limits of the Town Committee. | | 5. Railway Stations. = | 1 mile from the outer limits of the Railway Station. |

In the case of Cantonment Boards the prohibited zone shall tally with the limit prescribed for the local body to which they are adjacent, e.g. the limit of the prohibited zone in the case of Lahore Cantonment Board will be the same as that prescribed for the Lahore Corporation and the limit for the Cantonment Board, Multan, will be the same as fixed for the Municipal Committee, Multan-and so on."

(emphasis supplied)

The term "outer limits" means the piece of land which starts from the end point/boundary of territorial limits a municipal committee/corporation etc. In the instant case, the limit of "prohibited zone" as per the notification reproduced above, is regarding the land stretched till 05 miles from the "outer limits" of municipal committee. The main reason for imposition of ban on allotment/grant of proprietary rights of the state land falling in prohibited zone is to cater the present and future needs of the local population as well as for the use of other different public purposes. As per the report reproduce above, the land in question is situated about 07 KM away from Municipal Committee Haveli-Lakha District Okara. In the aforesaid notification, the limit of "05 miles from the outer limits of Municipal Committee" has been prescribed, which distance while measuring in Kilometers comes to 8.05 KMs [as 01 Mile = 1.609 KM] whereas as per the aforesaid report of the Assistant Commissioner, the land in question is situated at the distance of only 07 KM away from the above said Municipal Committee which is within prohibited zone. Thus, the land in question is situated within the "prohibited zone" as such the authorities are debarred to make any allotment of said land. An alike controversy qua the allotment of land situated within prohibited zone has been considered and declined by this Court in its judgment cited as Muhammad Israfeel and others v. The Province of Punjab and others (2021 MLD 313). The order passed in supra judgment was challenged in Intra Court Appeal (No.37127-2020) as well as a subsequent ICA No.85/2021 titled as Mushtaq Ahmad and others v. The Province of Punjab and others along-with other connected ICAs and same were also stood dismissed. Further on 05.10.2021 another Writ Petition [ No.57766/2021 ] was also dismissed on analogy of the aforementioned judgment [2021 MLD 313] which order of dismissal was assailed before the Apex Court who while dismissing Civil Petition No.1925-L/2021 on 25.08.2022 upheld the order of this Court. Thus the bar on the allotment of state land falling in prohibited zone has attained finality and all the state functionaries are under bounded obligation to comply with dictates of the Hon'ble Superior Court of law.

2024 M L D 780

[Lahore (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

Abdul Sattar Shah and others---Appellant

Versus

Syed Mubarak Shah and others---Respondent

C.R. No. 522 of 2021, heard on 21st November, 2022.

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

----O. I, R. 10---Specific Relief Act (I of 1877), S.42---Suit for declaration regarding inheritance share---Revenue entries , challenging of---Allegation of Fraud---Impleadment of Revenue Officers/Officials---Necessary party---Scope---Appellants /defendants, during the pendency of appeal, moved an application under O. 1, R. 10 Civil Procedure Code, for impleading Revenue Officer(s), which was dismissed---Petitioners /defendants assailed the order passed by the Appellate Court---Contention of the petitioners was that the mutations-in-question were challenged on the ground of fraud, so the Revenue Authorities (Provincial Government, Tehsildar, etc.) were the necessary parties and that the same parties might be impleaded at any stage of the suit---Validity ---Record revealed that the plaintiffs/ respondents filed the suit for declaration in the year 2009 with the allegation that the petitioners /defendants got sanctioned the inheritance mutation in the year 1943 while omitting their ( plaintiffs') name in the list of the legal hiers and all these proceedings were completed while concealing the facts---There was no specific allegation against any of the Revenue Officers that any of the Revenue Officer or Official was part of that conspiracy of omitting the name of the petitioners at the relevant time i.e. at the time of sanctioning of the mutation---Nowhere in the plaint any specific allegation was raised against any Revenue Officer or Official ---Revenue officer by name can be impleaded in the suit if the Court feels it necessary and when there is a specific allegation against him for being the part of some illegal act otherwise the matters which are required to be decided on the basis of documents and the other related/relevant oral evidence, the Officials/Officers of Revenue Department are not necessary to be impleaded in such proposition, as the relevant record can be requisitioned and analyzed by the Court---Other aspect of said proposition was that the suit was filed in the year 2009 and the petitioners filed the written statement in the year 2010 without raising any objection and even in the evidence there was nothing about the fact that Revenue Officers/Officials were necessary party to the lis, therefore, to that extent the Appellate Court had rightly decided the fate of the application as it was filed after the remarkable delay as the appeal was filed in the year 2013 and said application under O. 1, R. 10 of Civil Procedure Code, 1908, was filed in the year 2020 after a lapse of about 07 years for which there was no justification---No illegality or irregularity had been noticed in the impugned order passed by the Appellate Court dismissing application moved by the appellants ---Revision was dismissed, in circumstances.

Sikandar Hayat and others v. Sughran Bibi, and 6 others 2020 SCMR 214 distinguished.

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

----O. XIV, R. 5 ---Specific Relief Act (I of 1877) , S. 42---Suit for declaration regarding inheritance share---Framing of additional issues---Scope---Appellants /defendants, during the pendency of appeal, moved an application for framing of the additional issues , which was dismissed---Petitioners (appellants /defendants) assailed the said order passed by the Appellate Court---Contention of the petitioners was that it was duty of the court to frame the issues in view of the concerned documents (compromise/ relinquishment deed) as without proper settlement of the issues, the controversy between the parties could not be resolved---Validity---Although the Court was bound to frame the issues in view of the pleadings of the parties, however, in the written statement submitted by the petitioners / defendants there is nothing mentioned about the compromise deed allegedly having been made in the year 1995---So far as relinquishment deed allegedly having been made in 1964 was concerned that had been covered in the relevant issue--Petitioner had submitted the evidence regarding the relinquishment deed of the year 1964 duly exhibited by the petitioners / defendants and the same had been considered and discussed by the Trial Court while deciding the fate of the suit under the relevant issue, so to fill in the lacunas, no party could be allowed to seek any favour---Issues were framed in the year 2010, neither the petitioners objected on any issue nor submitted any application before the Trial Court for resettlement of the issues or to frame any additional issue in view of the pleadings and the compromise deed of the year 1965 was even not mentioned in the written statement by the petitioners---Trial Court framed the issues and the main controversy was highlighted through the issues; the parties tendered their evidence regarding the same and the relinquishment deed was tendered in the evidence and the same was discussed by the Court at length---Even the petitioners did not tender the compromise deed mentioned in the evidence---Nobody could be allowed to fill in the lacunas after 07 years of a decision passed by the Civil Court---Application had been tendered without mentioning any reason that why document was not mentioned in the written statement and also was not tendered in the evidence---Said document was a private document which could not be allowed to be placed on record at later stage and when the same was not mentioned in the written statement the court was not bound to frame the issue regarding the same---Appellate Court had rightly disallowed the application for framing of the additional issues---No illegality or irregularity was noticed in the impugned order passed by the Appellate Court dismissing application moved by the appellants ---Revision was dismissed , in circumstances .

Malik Muhammad Aslam and Muhammad Adil Sipra for Petitioners.

Nemo for Respondents.

Date of hearing: 21st November, 2022

Judgement

Safdar Saleem Shahid, J.---Through this Civil Revision the petitioners have assailed the order dated 22.09.2021 vide which the learned Additional District Judge during the pendency of appeal against the judgment, and decree dated 11.10.2013 passed by learned Civil Judge, dismissed two applications of the petitioners filed under Order I Rule 10, C.P.C. and the application for the settlement of the proposed issue.

1. Brief facts of the instant Civil Revision are that Mubarak Shah the respondent filed a suit lor declaration regarding inheritance share against the present petitioners, the petitioners filed the written statement and thereafter, the issues were framed and after the due trial (regarding evidence of the parties) the suit of the respondent was decreed in his favour against the present petitioners vide judgment and decree dated 11.10.2013; that the petitioners assailed that judgment and decree before the appellate court; that during the proceedings, the petitioners filed the applications under Order I Rule 10 of C.P.C. and for framing of the additional issues; that both the applications were contested by the respondents and the learned court vide impugned order dismissed both the applications.

2. The contention of the petitioners is that the court has not exercised its jurisdictions in view of the judgments of the apex court when the mutations are challenged on the specific esound of fraud then the province of Punjab, Tchsildar, .Girdawar and Patwari are the necessary parties. Counsel for the petitioners in this regard referred cases "Sakhi Jan and others v Shah Nawaz and another" (2020 SCMR 832), "Sikandar Hayat and others v Sughran Bibi, and 6 others" (2020 SCMR 214), "Shehwaar and 2 others v Muhammad Riaz and others" (2018.YLR 1938) and "Mian Zafar Ali and another v Mian Khursheed Ali" (2020 SCMR 291).

3. The contention or the counsel for the petitioners was that the parties may be impleaded at any stage of the suit. The counsel placed the reliance on case "Safiullah Khan and 4 others v PIA Officers Co-Operative Housing Society Ltd., Rawalpindi" (1992 MLD 967). It was further argued that it was duty of the court to frame the issues in view of the pleadings of the.parties as without proper settlement of the issues, the controversy between the parties cannot be resolved. In this regard counsel placed reliance on case "Mst. Sughran Bibi and others v Mst. Jameela Begum and others (2001 SCAM 772), "Shabbir Ahmed v- Muhammad Muzamil Hussain and another" (PLD 2021 Bal. 79). It was argued that unless the proper issues are not framed, the controversy cannot be resolved and even if the parties had not pressed for framing of a specific issue, it is the duty of the court to frame the issue. Counsel placed reliance on 2008 SCMR 1384 case titled as "Mst. Rasheeda Bibi and others v Mukhtar Ahmad and others".

4. Nobody appeared on behalf of the respondents, hence, proceeded ex-parte.

5. The rcspondents filed the suit for declaration on 27.10.2009 with the allegation that the petitioners got sanctioned the inheritance mutation No.238 dated 24.12.1943 while omitting the name of the respondent in the list of the legal and all these proceedings were completed while conceanling the facts. There is no specific allegation against any of the Revenue Officers that any of the Revenue Officer or Official was part of that conspiracy of omitting the name of the petitioners at the relevant time i.e. at the time of sanctioning of the mutation. The relevant para No.2 of the plaint is hereby reproduced:-

Nowhere in the plaint any specific allegation is raised against any Revenue Officer or Official whereas the judgmelied upon are very specific on this point. It is mentioned in 2020 SCMR 214 case titled as "Sikandar Hayat and others v Sughran Bibi and 6 others",

2024 M L D 786

[Lahore]

Before Raheel Kamran, J

Mst. SIDRA-TUL-MUNTAHA----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, LAHORE and others----Respondents

Writ Petition No.84511 of 2023, decided on 21st December, 2023.

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

----S.6---Polygamy---Contracting second Nikah during subsistence of marriage---Private complaint filed by first/existing wife---Ingredients of the alleged offence, non- existence of---Unlawful act and criminal intent---First/existing wife filed private complaint not only against her husband but also against second wife, witnesses of Nikah, Nikah Reciter, Registrar and secretary Union Council---Family Court after recording cursory evidence of the complainant, summoned the accused /husband and dismissed the complaint to the extent of remaining accused persons (second wife, witnesses of Nikah, Nikah Reciter, and secretary/registrar Union Council)---Appellate Court dismissed the criminal revision preferred by the complainant against the order of the Family Court---Plea of the petitioner (first wife/complainant) was that that sufficient evidence in the shape of second Nikahnama was available to proceed against the remaining respondents accused of facilitating the offence---Validity---Complaint filed against any accused must state the facts disclosing existence of both the unlawful act and the criminal intent so that the Court may be satisfied regarding existence of every ingredient of the alleged offence---Court is not required to casually accept the written complaint until it has satisfied itself that prima facie the case has been made out against the persons who have been accused of the criminal offence---In order to arrive at just evaluation, the Court ordinarily examines the complainant and the witnesses as cursory evidence---Purpose behind that practice is to protect the public from false and frivolous complaints filed against them in criminal Courts---Complaint in the present case did not disclose commission of any offence, much less the offence prescribed under S. 6(5) of the Ordinance 1961 allegedly committed by any of the respondents except the husband who, being accused of contracting another marriage without permission of Arbitration Council, had been lawfully summoned by the Court of competent jurisdiction---Petitioner had not been able to point out what offence, if any, disclosed in the complaint filed by the petitioner, was prima facie made out against other respondents---No illegality or jurisdictional error had been noticed in the impugned orders passed by the Courts below warranting interference in exercise of jurisdiction under Art. 199 of the Constitution---Constitutional petition was dismissed in limine, in circumstances.

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

----S. 6---Polygamy---Contracting second Nikah during subsistence of marriage---Private complaint filed by first/existing wife---Ingredients of the alleged offence, non-existence of---Punishment or penalty---Inchoate offence---First/existing wife filed private complaint not only against her husband but also against second wife, witnesses of Nikah, Nikah Reciter, Registrar and Secretary Union Council---Family Court after recording cursory evidence of the complainant, summoned the accused /husband and dismissed the complaint to the extent of remaining accused persons (second wife, witnesses of Nikah, Nikah Reciter and Secretary/Registrar Union Council)---Appellate Court dismissed the criminal revision preferred by the complainant against the order of the Family Court---Plea of the petitioner (first wife/complainant) was that that sufficient evidence in the shape of second Nikahnama was available to proceed against the remaining respondents accused of facilitating the offence---Validity---Provisions of S.6 of the Muslim Family Laws Ordinance, 1961 ('the Ordinance 1961') manifest that S. 6 neither makes the registration of another marriage contracted without permission of the Arbitration Council an offence nor the Ordinance prescribes any inchoate offence in relation to polygamy such as attempt, solicitation or conspiracy---Section 6 of the Ordinance 1961 does not prescribe any punishment or penalty against anyone other than the husband who contracts another marriage without permission of the Arbitration Council concerned---Enactments prescribing an offence are to be construed strictly and the words used therein cannot be extended by construction---Complaint in the present case did not disclose commission of any offence, much less the offence prescribed under S. 6(5) of the Ordinance 1961 allegedly committed by any of the respondents except the husband who, being accused of contracting another marriage without permission of Arbitration Council, had been lawfully summoned by the Court of competent jurisdiction---Petitioner had not been able to point out what offence, if any, disclosed in the complaint filed by the petitioner, was prima facie made out against other respondents---No illegality or jurisdictional error had been noticed in the impugned orders passed by the Courts below warranting interference in exercise of jurisdiction under Art. 199 of the Constitution---Constitutional petition was dismissed in limine, in circumstances.

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

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

----S.6---Penal Code (XLV of 1860), S. 109---Polygamy---Contracting second Nikah during subsistence of marriage---Private complaint filed by first/existing wife---Abetment---Scope---Inchoate offence---First/existing wife filed private complaint not only against her husband but also against second wife, witnesses of Nikah, Nikah Reciter, Registrar and secretary Union Council---Family Court after recording cursory evidence of the complainant, summoned the accused /husband and dismissed the complaint to the extent of remaining accused persons (second wife, witnesses of Nikah, Nikah Reciter, and Secretary/Registrar Union Council)---Appellate Court dismissed the criminal revision preferred by the complainant against the order of the Family Court---Plea of the petitioner (first wife/complainant) was that that sufficient evidence in the shape of second Nikahnama was available to proceed against the remaining respondents being accused of facilitating the offence---Validity---Muslim Family Laws Ordinance, 1961 ('the Ordinance, 1961') is a special statute; in the absence of any specific provision in the Ordinance, 1961 permitting applicability of the Pakistan Penal Code, provisions such as S. 109 of the P.P.C. for the offence of abetment cannot be read into and made applicable to broaden scope of the offence prescribed under S.6(5) of the Ordinance, 1961---Complaint in the present case did not disclose commission of any offence, much less the offence prescribed under S. 6(5) of the Ordinance 1961 allegedly committed by any of the respondents except the husband who, being accused of contracting another marriage without permission of Arbitration Council, had been lawfully summoned by the Court of competent jurisdiction---Petitioner had not been able to point out what offence, if any, disclosed in the complaint filed by the petitioner, was prima facie made out against other respondents---No illegality or jurisdictional error had been noticed in the impugned orders passed by the Courts below warranting interference in exercise of jurisdiction under Article 199 of the Constitution---Constitutional petition was dismissed in limine, in circumstances.

Ex-Lance Naik Mukarram Hussain and others v. Federal Government, Ministry of Defence through Chief of Army Staff and others 2017 SCMR 580 and Basharat Iqbal v. Nargis Rehana 1993 MLD 571 ref.

2024 M L D 822

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Rais Munir Ahmed----Petitioner

Versus

Women Ombudsperson Punjab, Lahore and others----Respondents

Writ Petition No.56438 of 2023, heard on 20th February, 2024.

(a) Punjab Enforcement of Women's Property Rights Act (X of 2021)---

----Ss.4 & 7---Complaint to Ombudsperson---Civil suit, pendency of ---Ombudsperson Punjab, jurisdiction of---Scope---Petitioners were aggrieved of decision against them passed by the Punjab Ombudsperson on two complaints filed by two sets of legal heirs---Stance of the petitioners , being legal heirs also, was that as a suit relating to properties left by the predecessor-in-interest , filed by other legal heirs was pending before the Sindh High Court, so the Punjab Ombudsperson could not decide the matter---Validity---Record revealed that both the complaints (before Ombudsperson by the two set of legal heirs/respondents), though were filed separately , but (were filed) before the institution of the suit by the another set of legal heirs---However, record (Record of Rights and the Report of the concerned Revenue Officer) reflected that the properties mentioned in the suit before the Sindh High Court were different from the properties mentioned before the Ombudsperson---Properties in the suit related to partition and inheritance of properties of the predecessor-in-interest , while the properties under the jurisdiction of the Ombudsperson were the ones already in the names of the respondents/complainants; therefore, S.4 of the Punjab Enforcement of Women's Property Rights Act , 2021(' the Act 2021') would continue to apply --- Constitutional petition was dismissed, in circumstances.

(b) Punjab Enforcement of Women's Property Rights Act (X of 2021) ---

----Ss. 4 & 7---Complaint to Ombudsperson---Properties left by the predecessor-in-interest---Fraud/forgery, allegations of---Ombudsperson Punjab, jurisdiction of---Petitioners were aggrieved of decision against them passed by the Punjab Ombudsperson on two complaints filed by two sets of legal heirs---Validity---One complaint filed by a legal heir was dismissed, as the matter involved allegations of fraud and forgery requiring recording of evidence, which was beyond the domain of Ombudsperson---Properties which were subject-matter of the other complaint were situated within territorial jurisdiction of the Province of Punjab, thus, Ombudsperson Punjab had rightly exercised its jurisdiction---Constitutional petition was dismissed, in circumstances.

(c) Punjab Enforcement of Women's Property Rights Act (X of 2021)---

----Ss. 4 & 7---Complaint to Ombudsperson---Properties left by the predecessor-in-interest---Conduct of the party---Failure to file written reply before Ombudsperson---Petitioners were aggrieved of decision against them passed by the Punjab Ombudsperson---Validity---Record showed that the petitioners did not opt to submit their written-reply to the complaints filed before the Ombudsperson despite having availed sufficient opportunities , however, in spite of said fact the Ombudsperson sought the report of the concerned Deputy Commissioner (DC) in light of guideleines contained in the Punjab Enforcement of Women's Property Rights Act, 2021 (Act 2021) in order to bring clarity , but the petitioners once again abstained from raising any objection upon the report of the said DC, for which they had no plausible explanation , and also did not bother to appear in response to notice issued by the High Court (for instant proceedings)---Constitutional petition was dismissed, in circumstances.

(d) Punjab Enforcement of Women's Property Rights Act (X of 2021)---

----Ss. 4 & 7---Complaint to Ombudsperson---Properties left by the predecessor-in-interest---Civil suit, pendency of---Petitioners were aggrieved of decision against them passed by the Punjab Ombudsperson---Stance of the petitioners was that the Ombudsperson could not decide the matter as suit filed by the respondent/legal-heir was pending---Validity---Said respondent neither filed an appeal against the impugned decision nor raised any issue---Constitutional petition was dismissed, in circumstances.

(e) Punjab Enforcement of Women's Property Rights Act (X of 2021)---

----Ss. 4, 7 & 11---Complaint to Ombudsperson---Civil suit, pendency of---Word "pending"---Meaning---Ombudsperson Punjab, jurisdiction of---Petitioners were aggrieved of decision against them passed by the Punjab Ombudsperson---Validity---S.4 of the Punjab Enforcement of Women's Property Rights Act ,2021 (the Act 2021) provides a different regime than S.7, where a suit is pending---Term "pending" means the proceedings have already been initiated/commenced prior to the filing of complaint under S.4 of the Act 2021 --- Once S.4 of the Act 2021 is triggered, the bar under S.11 of the Act 2021 becomes effective---Word "pending" means any action, in law, considered pending from time of its commencement---In the present case, regarding the properties which were subject matter of the complaint, no proceedings before any Court of law were pending, therefore the Ombudsperson correctly exercised jurisdiction---Constitutional petition was dismissed, in circumstances.

Fajar Ali and others v. Mst Jamila and others PLD 1969-Lahore 545 ref.

Barrister Daniyal Ijaz Chadhar and Muhammad Shuja-ul-Hakeem for Petitioner (in W.P. No. 68837 of 2023).

Samar Masood Soofi and Shamsher Ali for Respondents Nos. 3 to 6.

Ch. Awais Ahmad Qazi, Additional Advocate General along with Muhammad Naeem Ch., Law officer on behalf of Respondent No. 1.

Date of hearing: 20th February, 2024.

Judgment

MUHAMMAD SAJID MEHMOOD SETHI, J.---This consolidated judgment shall dispose of instant writ petition along with following connected petition as common questions of law and facts are involved in these cases:-

W.P. No.68837 of 2023 titled Rais Wazir Ahmed v. Women Ombudsperson Punjab, Lahore and others

1. Through these petitions, petitioners have assailed vires of decision dated 23.08.2023, passed by respondent No.1 / Ombudsperson Punjab, whereby complaints under Section 4 of the Punjab Enforcement of Women's Property Rights Act, 2021 ("the Act of 2021"), filed by respondent No.3 and respondents Nos.4 to 6 were allowed.

2. Brief facts of the case are that late Rais Shabbir Ahmad was predecessor-in-interest of petitioners, respondents Nos.3, 7 & 8, whereas respondent No.4 is widow and respondents Nos.5 & 6 are daughters of Rais Alamgir Ahmad, pre-deceased son of said late Rais Shabbir Ahmad. Said Rais Shabbir Ahmad passed away on 02.04.2021 leaving behind several movable and immovable assets at Karachi, Rahim Yar Khan and Islamabad. Respondent No.3 (daughter) filed suit for administration, partition, income, mesne profits and permanent injunction before the High Court of Sindh at Karachi for properties situated at Karachi, Rahim Yar Khan and Islamabad, wherein an injunctive order was passed on 26.01.2022. Later on, respondent No.3 initiated proceedings before respondent No.1 / Ombudsperson Punjab claiming only those properties falling in Mauza Sher Muhammad, Tehsil Sadiqabad. Respondents Nos.4 to 6 also filed a complaint before respondent No.1 claiming all the properties as inherited properties, which were mentioned in aforesaid suit, which was sine die adjourned vide order dated 01.09.2022 with the observation that The disputed property is yet to be partitioned and inheritance mutation is also to be sanctioned in favour of all legal heirs. Therefore, counsel for the complainant is suggested to get the inheritance mutation sanctioned in favour of the complainant and then approach this forum. Adjourned. Whereas one Nargis Fasih also filed a complaint before respondent No.1 against respondent No.3 and also filed civil suit at Tehsil Sadiqabad, Rahim Yar Khan and obtained status quo order. Likewise, respondent No.8, mother of petitioners and respondents Nos.3 and 7, also filed civil suit at Sadiqabad and obtained injunctive order as well qua the properties in question. Meanwhile, preliminary decree was passed in civil suit filed by respondent No.3 before Sindh High Court, which was assailed by the present petitioner through appeal before Division Bench, whereof the order of learned Single Judge was modified. Feeling discontent, petitioner as well as respondent No.8 assailed said order before the Supreme Court by way of filing civil petition, which was allowed with direction to Trial Court to determine the fact as to whether or not respondent No.4 / widow of Rais Alamgir would inherit anything in the estate of late Rais Shabbir Ahmad or not, determine the shares of all the legal heirs and decide the matter pertaining to partition of properties in joint khata. In this backdrop, respondent No.1 allowed the complaints filed by respondents No.3 and respondents No.4 to 6, vide consolidated order dated 23.08.2023, while dismissing the complaint of said Nargis Fasih with direction to respondent No.2 to implement the order and submit compliance report. Hence, these petitions.

3. Learned counsel for petitioner submits that suit filed by respondent No.3 was pending before Sindh High Court prior to filing of complaint under Section 7 of the Act of 2021, out of which this petition is arising, hence, without request for termination of the proceedings before Sindh High Court, the cognizance of the matter could not have been taken by learned Ombudsperson. He adds that even shares of the legal heirs of late Rais Shabbir Ahmad have yet not been determined as per direction of the Supreme Court vide order dated 04.05.2023, passed in Civil Petition No.410 of 2023, therefore, impugned proceedings / decision, being in conflict with the applicable law as well as direction of the Supreme Court, are unsustainable. In support, he relied upon Ali Ahmad and 4 others v. Ombudsperson (Mohtasib) Punjab and 6 others (PLD 2023 Lahore 711).

4. On the other hand, learned counsel for respondents Nos.3 to 6 defends the impugned decision by contending that complaints filed by respondent No.3 and respondents Nos.4 to 6 were initiated before institution of any of the suits and Section 4 will be read with Section 11 of the Act of 2021. She argues that the suits of respondent No.8 (widow of late Rais Shabbir Ahmad) and Nargis Fasih were filed after institution of the complaints. She maintains that the suit pending before the Sindh High Court does not affect the impugned order for the reason that the properties in the suit before Sindh High Court and those before the Ombudsperson are altogether different. She further argues that the properties before the Supreme Court are not the subject matter of the impugned order, which is only dealing with the properties already in the name of respondents Nos.3 to 6, whereas the properties before Supreme Court deal with the inheritance of properties of late Rais Shabbir Ahmad. She adds that respondent No.8 has neither challenged the impugned order nor has she appeared before this Court as respondent. In support, she has referred to Mohsin Ali Khan v. Federal Ombudsman Secretariat for Protection against Harassment of Women at the Workplace, Islamabad and another (2022 CLC 1955).

5. Arguments heard. Available record perused.

6. Record shows that the complaints were filed by Respondents Nos. 4 to 6 on 27.12.2021 and respondent No.3 on 29.03.2022. Both the complaints were filed before the institution of the suit by respondent No.8 (widow) on 15.06.2022 and Nargis Fasih on 26.10.2022. As regards the properties mentioned in the suit before Sindh High Court, the properties before the Ombudsperson were different. The suit before the Sindh High Court relates to partition and inheritance of properties of Rais Shabbir Ahmed Khan whereas the properties under the jurisdiction of the Ombudsperson in Punjab are properties already in the names of Respondents Nos. 3, 4, 5 & 6 as reflected in the report of the Revenue Officer. The same is reflected in the Record of Rights which shows the said respondents as exclusive owners of the proprieties.

The properties mentioned in impugned order are as under:-

i. Respondent No.3- property situated in Khewat No.6, Khatooni Nos. 13 to 16 - 777 Kanals and 4 Marlas, Muaza Shabbir Ahmed Abad, Tehsil Sadiqabad Khewat Nos.26, Khatooni No. 166 - 197 Kanals and 19 Marlas, Muaza Shabbir Ahmed Abad, Tehsil Sadiqabad Khewat No.12, Khatooni Nos. 28 to 31 - 120 Kanals, Muaza Shabbir Ahmed Abad, Tehsil Sadiqabad Khewat No. 11-3-2/11/3, Khatooni Nos. 4710 - 375 Kanals and 16 Marlas and 136 square feet, Muaza Sher Muhammad Tehsil Sadiq Abad

ii. Respondent No.4- Khewat No.5 Khatoni Nos. 102- 97 Kanals and 11 Marlas, Shabbir Ahmed Abad, Tehsil Sadiqabad

iii. Respondent No.5 - Khewat No.5 Khatoni Nos. 102 - 269 Kanals and 2 Marlas, Shabbir Ahmed Abad, Tehsil Sadiqabad

iv. Respondent No.6 - Khewat No.5 Khatoni Nos. 102- 269 Kanals and 2 Marlas, Shabbir Ahmed Abad, Tehsil Sadiqabad.

Likewise, the properties mentioned in the suit before Sindh High Court are as under:-

i. House No.39-A, 11th South Street, Phase 2, DHA, Karachi measuring 2000 Sq. Ft.

ii. Agricultural Property - 29 Acres (Tamleaked) Muaza Bhong Sadiqabad, Rahim Yar Khan.

iii. Agricultural Property - 19 Acres (Tamleaked) Chak No.4 / NP, Sanjarpur, Rahim Yar Khan, Sadiqabad.

iv. Agricultural Property - 21 Acres (Tamleeked) Muaza Shabir Ahmedabad; Sadiqabad, Rahim Yar Khan Sadiqabad.

v. Agricultural Property - 67 Acres (Tamleeked) Muaza Faiz Jilani Abad, Sadiqabad, Rahim Yar Khan Sadiqabad.

vi. Agricultural Prdperty - 150 Acres (Tamleeked) Muaza Noorpur, Sadiqabad, Rahim Yar Khan, Sadiqabad;

vii. Flat No.D-15, Block-5, Kuldana Road Murree, Islamabad, Islamabad Urban.

viii. Apartment No.6-D, Bhorbon Murree, Islamabad, Islamabad Rural.

ix. House No.219, Street 21, Sector E17, Islamabad, Islamabad Urban measuring 800 Sq. Ft.

x. 4/27 share in house (160 Marla) Zimindara Colony, Rahim Yar Khan.

2024 M L D 846

[Lahore]

Before Tariq Saleem Sheikh and Farooq Haider, JJ

Iqbal Ansari----Appellant

Versus

The State----Respondent

Criminal Appeal No.2066 of 2016, decided on 13th July, 2023.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), Ss. 464 & 465---Qatl-i-amd, attempt to commit qatl-i-amd, act of terrorism---Appreciation of evidence---Unsoundness of mind---Proof---Accused was charged for committing murder of his senior officer and also causing firearm injuries to his other officer---In the present case, there was credible evidence that the accused had been intermittently suffering from a mental condition for the past 18 years---Question before the Court was whether accused was fit at that time when his appeal was fixed for hearing---In the circumstances, the report from the medical board from Punjab Institute of Mental Health sufficed---There was no need for an inquiry of the sort described in S. 465, Cr.P.C.---Convict might be prejudiced if the Appellate Court ruled on his appeal while he was of unsound mind because doing so denied him the right to a hearing---Therefore, the High Court/Appellate Court should postpone the hearing of the appeal and/or the reference when the convict was mentally incapacitated---However, the court might proceed if the case was such that the convict would be acquitted---Applying the said principles, appeal was adjourned until the accused recovered and could present his case---High Court directed that Superintendent, Central Jail, shall take the accused to the Medical Superintendent, PIMH, every two months for his medical examination by a medical board, which would submit its report to High Court, and that the appeal shall be fixed immediately after receiving a favourable report on the accused.

Mst. Safia Bano and another v. Home Department, Government of the Punjab, and others PLD 2021 SC 488; Vivian Rodrick v. State of West Bengal, 1969 3 SCC 176 and State of Maharashtra v. Sindhi alias Raman AIR 1975 SC 1665 rel.

Ch. Muhammad Jawad Zafar assisted by Mian Mushtaq Pervaiz Abbasi for Appellant.

Rana Muhammad Imran Anjum, Deputy Prosecutor General for the State.

Date of hearing: 27th April, 2023.

Judgment

Tariq Saleem Sheikh, J.---On 11.6.2004, Akhtar Hussain (PW-12) (hereinafter referred to as the "Complainant") appeared before the SHO, Police Station Civil Lines, Lahore, and stated that he was serving as a Research Officer in WAPDA. When he arrived at the WAPDA House for duties in the morning, he met Abdul Rehman (Director, C.A.D.). The latter proceeded to his office while he went to Room No.214 to see Director Abdul Jalil Ibrar. The gentleman had not yet arrived, but PW Zafar Iqbal, Assistant Director, was present. Meanwhile, another Assistant Director, Iqbal Ansari (the Appellant), came and inquired whether Abdul Jalil was on leave. PW Zafar Iqbal informed him that he was not and would be in the office shortly. The Appellant left, and after some time, Abdul Jalil arrived. Around 8:35 a.m., fire shots were heard from Abdul Rehman's office, and the news came that the Appellant had injured him. A few minutes later, the Appellant stormed into Room No.214, holding a pistol. He yelled at Abdul Jalil that he would teach him a lesson for having him transferred and then shot him dead. According to the Complainant, the Appellant committed the offence because he suspected that Abdul Jalil and Abdul Rehman had complained against him, upon which the WAPDA authorities had posted him away. The SHO reduced the Complainant's statement to writing and, based on that complaint (Exh. PE), FIR No. 463/2004 dated 11.6.2004 (Exh. PE/1) was registered under sections 302, 324, P.P.C. and section 7 of the Anti-Terrorism Act, 1997 (the "ATA").

1. When the Appellant was in judicial lock-up, his relatives applied for the constitution of a medical board, stating that he had lost his mental balance and was unfit to stand trial. On 3.9.2004, without waiting for the medical evaluation, the Special Judge, Anti-Terrorism Court, Lahore, indicted him. Subsequently, when he received the board's report confirming that the Appellant was unfit, he suspended further proceedings in the case, directing it to examine him periodically and submit updates. On 28.3.2005, the Judge received the board's report stating that the Appellant had regained health. Thereupon, he resumed the proceedings without a fresh indictment. He recorded the prosecution evidence and, at the conclusion of the trial, found him guilty and sentenced him to death. The High Court dismissed the Appellant's appeal (Crl. Appeal No.1060 of 2006) and answered Capital Sentence Reference No. 32/T/2006 sent by the trial court under section 374, Cr.P.C. in the affirmative. The Appellant filed Crl. Appeal No. 703/2009 in the Supreme Court of Pakistan, which it decided vide judgment dated 16.11.2015. The Supreme Court remanded the case for a de novo trial because the Appellant was mentally incompetent when the Special Judge indicted him on 3.9.2004. He was required to frame the charge against him afresh when he resumed proceedings on 28.3.2005 after the board's certification that he could face the trial. Since he did not do so, he committed an incurable irregularity which vitiated the trial.

2. In the post-remand proceedings, on 22.8.2016, the Special Judge framed the charge against the Appellant afresh, to which he pleaded not guilty. The Special Judge then recorded evidence and, on the completion of the trial, convicted and sentenced him by judgment dated 25.10.2016 as under:

(i) Convicted under section 7(a) of the ATA and sentenced to imprisonment for life with a fine of Rs.100,000/- payable to the legal heirs of Abdul Jalil Ibrar deceased and, in case of default thereof, he shall undergo further imprisonment for six months.

(ii) Convicted under section 7(b) of the ATA and sentenced to rigorous imprisonment for ten years with a fine of Rs.50,000/- payable to Abdur Rehman (the injured person) and, in case of default thereof, he shall undergo further imprisonment for four months.

(iii) Convicted under section 7(h) of the ATA and sentenced to rigorous imprisonment for five years with a fine of Rs.10,000/- and, in case of default thereof, he shall undergo further imprisonment for five months.

The Special Judge ordered that the Appellant's sentences shall run concurrently and extended him the benefit of section 382-B, Cr.P.C.

1. The Appellant has challenged his conviction and sentence before this Court through the instant appeal.

2. When we took up this appeal, Ch. Muhammad Jawad Zafar, Advocate, informed us that the Appellant had relapsed into his mental ailment. We directed the Medical Superintendent, Punjab Institute of Mental Health, Lahore (PIMH), to form a medical board to evaluate his health. The board has reported that the Appellant suffers from schizoaffective disorder and is unfit to face legal proceedings. Consequently, the question has arisen whether we should decide this appeal in the current situation.

3. Ch. Zafar states that the Appellant is receiving therapy but is in bad shape. This Court should adjourn the hearing of this appeal until he is well enough. The Deputy Prosecutor General has, however, opposed this suggestion. He contends that section 465, Cr.P.C. applies only at the trial stage. No legal impediments prevent this Court from ruling on this appeal.

4. We have heard the counsel and examined the record. We start our discussion on the issue with sections 464 and 465, Cr.P.C., which read as follows:

464. Procedure in case of accused being lunatic.-(1) When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined by the Civil Surgeon of the district or such other medical officer as the Provincial Government directs, and thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing.

(1A) Pending such examination and inquiry, the Magistrate may deal with the accused in accordance with the provisions of section 466.

(2) If such Magistrate is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, he shall record a finding to that effect and shall postpone further proceedings in the case.

465. Procedure in case of person sent for trial before Court of Session or High Court being lunatic.-(1) If any person before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Court is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case.

(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court.

1. Section 464, Cr.P.C. deals with the proceedings before a Magistrate, while section 465, Cr.P.C. relates to the trials before the Court of Session and the High Court. A Larger Bench of the Supreme Court of Pakistan recently explained these provisions in Mst. Safia Bano and another v. Home Department, Government of the Punjab, and others (PLD 2021 SC 488). True, a bare perusal thereof indicates that they only apply to inquiries or trials. If the issue of the convict's soundness of mind and incapacity arises before the High Court at the appellate stage, since there is no specific provision dealing with that situation, it may, at its discretion, take one of the following courses: (i) it may determine the fact of such unsoundness and incapacity itself following the procedure specified in section 465, Cr.P.C. and elucidated in Safia Bano's case, or (ii) it may refer the matter to the Court of Session/Special Court concerned for determination according to the same principles, or (iii) it may direct the Medical Superintendent, PIMH, to form a medical board and seek a report from it. The High Court would decide on the options considering the facts and circumstances of each case.

2. In the present case, there is credible evidence that the Appellant has been intermittently suffering from a mental condition for the past 18 years. The question before this Court is whether he is fit at this time when his appeal is fixed for hearing. In the circumstances, the report from the medical board from PIMH suffices. There is no need for an inquiry of the sort described in section 465, Cr.P.C.

3. Should the decision on the Appellant's appeal be postponed in light of the medical board's certification of his disability?

4. In Vivian Rodrick v. State of West Bengal, (1969) 3 SCC 176, Vivian Rodrick was charged under sections 302 and 148 of the Indian Penal Code and section 5 of the Explosive Substances Act. His trial was delayed because medical reports showed he was of unsound mind. It commenced when his condition gradually improved and he could make his defence. Eventually, he was convicted and sentenced. He filed an appeal, but his mental illness recurred in the meantime. While he was still in that condition, the High Court heard and decided on his appeal, maintaining his conviction and sentence. The Indian Supreme Court set aside the judgment holding as under:

"28. Whatever may be the legal position regarding the applicability of section 465 Code of Criminal Procedure to appeals, we are not inclined to agree with the proposition enunciated by the learned Judges [of the High Court] that there is no bar to 'hearing and disposing of an appeal, even if the Accused-Appellant is of unsound mind or even insane at the time when the appeal is taken up for hearing'…

"29. In our opinion, when the report is that an Accused-Appellant is of unsound mind, it is reasonable to infer that he is incapable of making his defence, and the Court, in the circumstances, is bound to afford him the same protection to which he would have been entitled had he been of unsound mind at the time of the trial.

"30. We may refer, in this connection, to the decision of the Calcutta High Court in Sundaram v. State (MANU/WB/0249/1958 : ILR 1959 2 Cal 465) which lays down that even if Chapter XXXIV of the Code of Criminal Procedure may not apply to an appeal, nevertheless the Court has inherent power to postpone the hearing of the appeal until such time as the Appellant should be found to be of sound mind again and thus capable of making his defence. We are of the opinion that the distinction sought to be made of this decision, in the order of the Appellate Bench, dated July 19, 1967 in the present case, is not justified, whatever may be the position regarding the applicability or otherwise of Chapter XXXIV to appeals."

1. In Vivian Rodrick's case, the Indian Supreme Court observed that if a convict's appeal is heard while he is of unsound mind, he may be prejudiced and result in a failure of justice. To illustrate this point, the Indian Supreme Court stated that during the hearing of the appeal, the court may think it necessary to take additional evidence. Or, circumstances may arise in which the convict must request permission to present additional evidence. In such situations, the convict would be unable to give appropriate instructions to his lawyer or put essential questions to the witness himself.

2. In State of Maharashtra v. Sindhi alias Raman (AIR 1975 SC 1665), the Additional Sessions Judge sentenced the respondent-convict to death for double murder. He did not file any appeal, but the trial judge submitted a reference to the High Court for the confirmation of the death sentence. The High Court postponed the proceedings in the reference because the convict became insane. The State filed an appeal before the Supreme Court of India inter alia contending that (i) section 465 of the Indian Code of Criminal Procedure (which is pari materia with our section 465, Cr.P.C.) is limited to the trial stage and does not apply to the proceedings before the High Court on reference since they are post-trial proceedings, (ii) the accused has no right of audience in a reference. The Supreme Court dismissed the appeal holding as under:

2024 M L D 867

[Lahore]

Before Rasaal Hasan Syed, J

Aina Bano----Petitioner

Versus

Pakistan Medical Commission through Chairman and another----Respondents

Writ Petition No. 75998 of 2022, decided on 14th December 2022.

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

----S.8(2)(f)---Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct) Regulations, 2021,---Public Notice issued by Pakistan Medical Commission---Medical and Dental Colleges Admission Test ('MDCAT') for the session 2022-23---Criteria ---Marks obtained in compulsory subjects, exclusion of---Calculation of merit--- Policy-decision of Pakistan Medical Commission ('PMC')---Petitioner (candidate for admission in medical and dental colleges for the session 2022-23) filed constitutional petition challenging a Public Notice issued by PMC which was to the effect that candidates who passed their F.Sc (Pre-Medical)/HSSC or equivalent exam last year (2021) and were now applying for MDCAT for the session 2022-23, only their elective subject marks and percentage would be considered for merit calculation for admission in medical and dental colleges for the session 2022-23---Argument of the petitioner was that in processing her candidature for admission by non-inclusion of her marks for the compulsory subjects would be discriminatory as the candidates who took F.Sc in 2022 would get their marks in Urdu, English, Islamic Education and Pakistan Studies also reflected in calculation of 40% weightage being given to F.Sc as per regulations whereas in her case as well as other students who did F.Sc in 2021 this would not be done and score in elective subjects only would be taken which was unfair---Validity---Argument of the petitioner on the face of it was fallacious; in fact if accepted it would create a case of discrimination for the applicants who were intending to be considered for admission on the basis of F.Sc held in 2022 when the Covid-19 pandemic policy was no longer in vogue and papers were actually held and taken for the subjects of Urdu, English, Islamic Education and Pakistan Studies and marks were based on performance of these students in the examination in those subjects whereas in the case of petitioner marks were given in all these subjects on the basis of Covid-19 pandemic and she did not actually take these papers---Admittedly, the petitioner was eligible to apply last year for admission in session 2021-22 which she had not done due to her own reasons---All admissions with respect to candidates of F.Sc in 2021 were processed strictly on the basis of elective subjects only and the score policy applied to all candidates from that year who would be seeking admission in session 2022-23 which was a separate and distinctive category as no examinations were held in the compulsory subjects in their case which was applied across the board within that category and no instance of exception was claimed or alleged by the petitioner in said regard---Regarding objection of the petitioner that the regulations required 40% weightage qua the F.Sc score and that the policy was violative thereof, the regulation was couched in general terms and did not specify as to how that weightage of F.Sc score would be actually calculated--- By notification dated 30.6.2021 said calculation of merit qua the F.Sc score was specifically limited to only the elective subjects as they were the only subjects in which examinations were actually held and taken and the petitioner fell in the same category which was covered by the said notification---Expectation that the constitutional jurisdiction may be pressed into service as expressed is not admissible which will have the effect of reshaping the modality structured by the regulatory body in its statutory role to equitably and reasonably attend to the subject-matter in given circumstances that squarely fell in its regulatory domain---Calculation of merit is a very serious matter in general and goes to the heart of informing the basis of proper distribution of limited resources in terms of goods and services---In present case it was entry/seats in medical education---Observance of merit is all the more pivotal to professional education as eventually the products thereof are required to deal with sensitive matters having potentially far-reaching effects on human lives and society---Such determination is best made on the basis of actual performance of the candidates and no undue advantage would be accorded to any person to the exclusion of others in such process without offending settled principles of good governance---In the present case, the score of the petitioner in the compulsory subjects, which she insisted to be included, would clearly put her at an unfair advantage and the applicants with F.Sc completed in 2022 at an unfair disadvantage, as the score of the latter category was based on a result of actual examinations held whereas her (petitioner's) result was based on fictional score---Even petitioner's submission (that such criteria shall also be made in the case of matriculation which is not being done) was entirely extraneous to the controversy at hand as her insistence was on inclusion of unearned score of F.Sc in consideration of her merit for session 2022-23 whereas she took her matriculation well before Covid-19 and qua her case matriculation examination had no material bearing---Policy-decision of PMC to the extent represented by the Public Notice as such fully stood to reason and suffered from no inherent or illegal discriminatory feature being based on tenable classification and, therefore, warranted no interference in extraordinary constitutional and discretionary jurisdiction of the High Court---Constitutional petition was dismissed, in circumstances.

Amjad Ali for Petitioner.

Waqar Mushtaq Toor, Legal Advisor PMC for Respondents.

Order

Rasaal Hasan Syed, J.---Through the instant Constitutional petition a Public Notice issued by Pakistan Medical Commission ("PMC") has been called into question which is to the effect that candidates who passed their F.Sc (Pre-Medical)/HSSC or equivalent exam last year (2021) and are now applying for admission in medical/dental colleges for the session 2022-23, are informed that only their elective subject marks and percentage will be considered for merit calculation for admission in medical and dental colleges for the session 2022-23.

1. Learned counsel for the petitioner states that as per regulations of PMC the admission process in medical education is based on prescribed weightage formula in which MDCAT holds 50% weightage; F.Sc (Pre-Medical)/HSSC/Equivalent holds 40% weightage and SSC/Matriculation/ Equivalent holds 10% weightage and that the F.Sc score of the petitioner, as contained in Provisional Result Intimation dated 14.10.2021 includes 100% score each for Urdu, English, Islamic Education and Pakistan Studies which score was required to be factored in while considering the 40% weightage given to her F.Sc score for purposes of determination of her merit for the admission this year which will not be done as the score in the said subjects has been excluded by PMC as confirmed in the Public Notice which is unjustified and calls for interference.

2. Report and parawise comments were requisitioned from respondents Nos.2 and 3 in which the stance taken is that on 30.6.2021 PMC in its Meeting held on 25.6.2021 approved a policy for calculation of merit for the admissions in medical and dental colleges in line with the Government policy due to covid-19 pandemic whereby the marks obtained by the students in science-elective subjects only shall be used for calculating the merit and that the policy shall apply to all students who had completed their F.Sc in 2020 and 2021. In elaboration of the stance learned Legal Advisor PMC submits that due to the covid-19 pandemic related safety measures F.Sc examinations were only held for the elective subjects i.e. Physics, Chemistry and Biology whereas the subjects of Urdu, English, Islamic Education and Pakistan Studies were calculated on the basis of the aggregate/percentage of marks in the elective subjects for all candidates of 2021 as examinations in these subjects were not held. It is further submitted that the admissions in medical and dental colleges for the Academic Year 2021-22 were carried out on the basis of score in the elective subjects only i.e. Physics, Chemistry and Biology and the marks in the compulsory subjects being fictive necessitated by covid-19 related exigency were excluded being unearned marks as no examinations in these subjects were held.

3. From perusal of the documents on the file it is revealed that the petitioner passed her F.Sc in 2021 and was, as such, eligible to apply for admission in session of 2021-22. This apparently was not done by her as she took the MDCAT at some particular point and now wants to apply for session 2022-23. Learned counsel for the petitioner has taken the stance that in processing her candidature for admission by non-inclusion of her marks for the compulsory subjects would be discriminatory as the candidates who took F.Sc in 2022 will get their marks in Urdu, English, Islamic Education and Pakistan Studies also reflected in calculation of 40% weightage being given to F.Sc as per regulations whereas in her case as well as other students who did F.Sc in 2021 this will not be done and score in elective subjects only will be taken which is unfair.

2024 M L D 886

[Lahore (Bahawalpur Bench)]

Before Muhammad Amjad Rafiq, J

Sabir Hussain----Petitioner

Versus

The State and others----Respondents

Criminal Revision No.200 of 2023, decided on 13th December, 2023.

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

----Arts. 159 & 160---Criminal Procedure Code (V of 1898), Ss. 94 & 540---Evidence, summoning/examining of---Scope---Application of the petitioner for providing him with copy of Call Data Record (CDR) comprising of 117 pages mentioned in the recovery memo was declined---Validity---In this case, CDR of accused persons was collected by Investigating Officer through recovery memo dated 30.11.2020 but such CDR and a recovery memo were not appended with the report under S.173 of Cr.P.C.---Such evidence would be used against the accused if unfavourable to him; therefore, he could not be embarrassed with surprise evidence without giving him time and opportunity to prepare his defence on this evidence---Due process as guaranteed under Article 10-A of the Constitution, 1973, required that all the processes supplemented by the legal provisions must be followed by providing a fair opportunity to the accused---In this case if CDR was unfavourable to the accused, then he could not opt to skip its production before the Court, if prosecution demanded---Article 160 of Qanun-e-Shahdat, 1984 provides that if the prosecution does not produce CDR before the Court on the notice of accused, then it cannot use such CDR as evidence during the trial except with the consent of accused or the Court---Thus, right of the accused for seeking the data of CDR should not be infringed otherwise this evidence could also not be used by the prosecution during the trial---Any material was to be provided to the accused if it was essential to adhere to fundamental right of due process and fair trial---Only exception to this material is the 'diary of proceedings in investigation' which is privileged under S.172 of Cr.P.C.---Petition was allowed, in circumstances.

The State v. Chaudhry Muhammad Usman 2023 SCMR 1676 ref.

Muhammad Idrees and another v. The State and others 2021 SCMR 612 rel.

Malik Saeed Ejaz for Petitioner.

Shahid Fareed, Assistant District Public Prosecutor for the State.

Shabbir Masood Malik for Respondent/complainant.

Date of hearing: 13th December, 2023.

Judgment

MUHAMMAD AMJAD RAFIQ, J.---Through this criminal revision, order dated 08.11.2023 was assailed by the petitioner whereby the learned Additional Sessions Judge, Ahmadpur East has declined his request for providing him with copy of CDR comprising of 117 pages mentioned in the recovery memo dated 30.11.2020 though was not available on the record. The learned Judge directed that CDR was collected by one Dilawar Hussain SI/I.O. who has yet not been examined as witness in the case, therefore, on his appearance in the dock, the petitioner can well examine the data of CDR if produced in evidence.

1. Learned counsel for the petitioner contends that law permits for provision of relevant documents to the defence upon which the prosecution case is structured or is expected to be relied upon during trial, and in this respect, he developed an argument that it is not necessary that any document disclosure of which is regulated under section 265-C of Cr.P.C. cannot be summoned before or after that stage. He has referred case reported as The State v. Chaudhry Muhammad Usman (2023 SCMR 1676) wherein while referring section 94 of Cr.P.C., the Supreme Court of Pakistan has held that Court can summon any document at any stage of inquiry or trial for its supply to the accused if requested for and is essential for his defence on any fact in issue in the case. Learned counsel further submits that when disclosure stage under section 265-C of Cr.P.C., is passed and prosecution wants to use any witness who is not cited in the list, accused still had a chance to get copies of statement of a witness or related document as per mandate of section 162 of Cr.P.C.

2. Learned Assistant District Public Prosecutor on the other hand has conceded the legal position as referred in case reported as The State v. Chaudhry Muhammad Usman (2023 SCMR 1676). Though learned counsel for the respondent/ complainant has opposed the petition but later conceded that by providing copy of CDR to the accused/petitioner, prosecution case would not be affected in any manner.

3. Heard. Record perused.

4. The Supreme Court of Pakistan while dilating upon section 94 of Cr.P.C. has categorically interpreted that the trial Court can summon any document which is essential for the purpose of an inquiry or trial and this can also be done on the application of any party. In this case, CDR of accused persons was collected by Dilawar Hussain SI/I.O. through recovery memo dated 30.11.2020 available in the police but such CDR and a recovery memo were not appended with the report under section 173 of Cr.P.C. It is expected that this evidence would be used against the accused if unfavourable to him; therefore, he cannot be embarrassed with surprise evidence without giving him time and opportunity to prepare his defence on this evidence. Due process as guaranteed under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 requires that all the processes supplemented by the legal provisions must be followed by providing a fair opportunity to the accused.

5. It has further been noticed that once a party calls a document after giving notice to the other for its production which is in the possession of other party and if such party refuses to produce the same, then document cannot be used as evidence later in the process except with the consent of party or the Court, and notice to other party of course can be a situation when an application before the Court is filed for summoning of such document. Articles 159 & 160 of Qanun-e-Shahadat Order, 1984 are referred in this respect as under:

159. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

2024 M L D 911

[Lahore]

Before Sultan Tanvir Ahmad, J

Zahid Anjum----Petitioner

Versus

Additional District Judge and 5 others----Respondents

Writ Petition No. 69042 of 2022, heard on 22nd December, 2022.

Family Courts Act (XXXV of 1964)---

----S.5 & Sched.---Maintenance allowance, recovery of---Sham transaction involving immoveable property to avoid payment of maintenance allowance---Concurrent findings---Petitioner claimed to be owner of the property purchased by him against due consideration vide mutation in question from the owner against whom decree for recovery of maintenance had been passed by Family Court---Trial Court and Lower Appellate Court concurrently declared the mutation void for it was entered to avoid payment of maintenance allowance to respondents---Validity---Judgment debtor neglected to fulfill his obligations imposed upon him through decree passed by Family Court and to pay maintenance allowance to minors---Petitioner appeared before Family Court in response to the application seeking restraining order against petitioner from alienating the property who within a period of 3 to 4 months alienated the property through mutation to his real brother---Such transfer of property reflected that mutation was nothing but a sham transaction to avoid maintenance, which was duty of judgment debtor---High Court declined to interfere in the order passed by two Courts below who concurrently reached to the conclusion that the only purpose of the mutation was to avoid payment under decree passed by Family Court---Petitioner failed to point out any illegality or material irregularity in orders passed by two Courts below---Constitutional petition was dismissed, in circumstances.

Muhammad Yaar v. Additional District Judge, Depalpur and others 2020 YLR 1266 and Amjad Iqbal v. Mst. Nida Sohail and others 2015 SCMR 128 rel.

Mehar Gulzar Ahmed Nanga for Petitioner.

Barrister Saeed Ahmad Nagra for Respondents Nos. 3 to 5.

Respondent No. 6: Present in person.

Date of hearing: 22nd December, 2022.

Judgment

SULTAN TANVIR AHMAD, J.---Through this Constitution petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the judgment dated 26.09.2022 passed by learned Additional District Judge Gojra, whereby, the order dated 16.06.2022 of the learned Judge Family Court, Gojra, has been upheld.

1. Brief facts of the case are that suit of respondents Nos.3 to 5 for recovery of maintenance etc. was decreed on 11.01.2021 against respondent No.6 (the 'judgment-debtor'). On 02.09.2021 the learned Family Court attached the property as detailed in this petition (the 'property'), however, the composed Revenue Officer reported that the judgment-debtor has already alienated the property to the petitioner, through mutation No.7482 dated 30.11.2019 (the 'mutation'). On 16.06.2022 the learned Family Court declared the mutation as void being result of an attempt to avoid payment of maintenance allowance to respondents Nos.3 to 5. The same was assailed through family appeal Nos.08-14 of 2022, which was dismissed vide judgment dated 26.09.2022 by the learned Appellate Court. Aggrieved from the same, the present petition has been filed.

2. Mehar Gulzar Ahmed Nanga, learned counsel for the petitioner has submitted that the petitioner purchased the property for Rs.100,000/- and the mutation was sanctioned in his favour, therefore, the judgment and the order passed by the learned two Courts below are illegal. It is further submitted by learned counsel that the impugned judgment dated 26.09.2022 passed by the learned Appellate Court and order dated 16.06.2022 passed by the learned Family Court Gojra were passed in a mechanical and hasty manner. Added that the learned Courts below have failed to proceed with the case fairly and properly as well as ignored the verdicts of the superior Courts, hence the impugned judgment and order are liable to be set-aside.

3. Conversely, Barrister Saeed Ahmad Nagra, learned counsel for respondents Nos.3 to 5 has vehemently opposed the present petition. He has argued that the judgment-debtor is not willing to respect and comply with the judgment and decree; that the mutation is passed in utter bad faith and to avoid payment of maintenance; that facts and circumstances clearly suggests that transaction in question is sham. Respondent No.6 (judgment-debtor) is present in person and he has supported the arguments of learned counsel for the petitioner.

4. I have heard the arguments in length and record has been perused with the able assistance of learned counsel for the parties.

5. Record reflects that soon after institution of the suit the judgment-debtor has alienated the property to the petitioner, who is his real brother. After filing the suit of maintenance, an application was filed by respondent No.3 for restraining the petitioner from alienating the property. The petitioner himself appeared before the learned Family Court on 06.07.2019 and immediately thereafter, the mutation was passed. Today I specifically asked the learned counsel if he can show source of the petitioner from where the amount of Rs.100,000/- was paid but the learned counsel of the petitioner has failed to give any plausible answer. The question was also raised if he can give any detail of withdrawing the amount of Rs.100,000/- from any bank. The learned counsel just kept quiet in response of this question. The reply filed by the petitioner before the learned trial Court is also silent as to the same.

6. Record also reveals that judgment-debtor till to date has neglected to fulfill his obligations imposed upon him through the decree dated 11.01.2021 and to pay the maintenance allowance to the minors. The petitioner appeared before the learned Family Court in response to the application seeking restraining order against the petitioner from alienating the property and within the span of period of 3 to 4 months alienated the property through the mutation to his real brother, which clearly reflects that the mutation is nothing but a sham transaction to avoid maintenance, which is duty of the judgment-debtor. This Court in case titled "Muhammad Yaar v. Additional District Judge, Depalpur and others" (2020 YLR 1266) has already observed as follows:-

"3. After hearing learned counsel for the petitioner and scanning the documents, appended with this petition, 1 have noted that decree in the suit filed by the respondents Nos.4 and 5 was passed on 05.01.2017 whereas mutation in favour of the petitioner was got attested by the judgment-debtor/respondent No.6 (real son of the petitioner) in his favour on 10.05.2017, thus, the same falls within the definition of sham transaction which has rightly been cancelled by the learned Executing Court."

I am further fortified in my view by the law settled by the Honourable Supreme Court of Pakistan in case titled "Amjad lqbal v. Mst. Nida Sohail and others" (2015 SCMR 128). The Honourable Supreme Court of Pakistan in almost in the similar circumstances has curbed such intent of father to save his property at the cost of own children, depriving them from the basic needs for survival. The Honourable Supreme Court of Pakistan has clearly observed that while exercising the parental jurisdiction, the Court cannot just sit and be spectator to this unlawful conduct. It will be beneficial to reproduce the following extract from the above said judgment of the Honourable Supreme Court of Pakistan:-

"...Both Hiba as well as the purported sale in favour of the petitioner were nothing but sham transactions and its purpose was to ensure that the decree is not satisfied. The decree was nothing but for the maintenance of respondent No.2's own minor daughter. Unfortunately, the respondent No.2 in sheer disregard of his parental obligation has indulged in making all these unlawful transactions. What intent the respondent No.2 had in his mind but to starve his own minor daughter of her basic needs for survival. The Court while exercising parental jurisdiction cannot just sit and be a spectator in this unholy and unlawful conduct of the respondent No.2."

(Emphasis supplied)

2024 M L D 919

[Lahore (Bahawalpur Bench)]

Before Muhammad Amjad Rafiq, J

Muhammad Zafar alias Gulabi----Appellant

Versus

The State and others----Respondents

Criminal Appeal No. 71 of 2022, decided on 29th November, 2023.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Presence of the witnesses at the time and place of occurrence was not justifiable---Chance witnesses---Accused charged for committing murder of the son of complainant by firing---Motive behind the occurrence was dispute of landed property---Ocular account was put forth by the prosecution through complainant and his cousin---Complainant in order to cover up the collection of three crime empties from the crime scene dishonestly improved his statement in examination in chief while deposing that accused had also made aerial firing at the site whereas no such fact was deposed by other eyewitness nor it was mentioned in FIR or private complaint---Such fact left a negative impact on the credibility of witnesses and doubt over prosecution story---Both the witnesses stated in unequivocal terms that fires made by the accused hit on the chest and belly of the deceased---Said fact was sufficient to rule out their presence at the place of occurrence because there was no injury on the abdomen---Complainant had not stated any particular reason of his presence at the place of occurrence and no reason for commission of murder of deceased was brought on record through any documentary proof---During evidence, distance between the house of complainant and the place of occurrence could not be brought on record; therefore, it could not be inferred that complainant was present near the Dera of witness at the particular time---Absence of witnesses was further reflected from the fact that they deposed in examination in chief that they attended the deceased, but they did not produce their (blood stained) clothes before the Investigating Officer---Presence of witnesses at the time of occurrence was also belied from the fact that Investigating Officer prepared memo of identification of dead body at the place of occurrence which though was not attested by the complainant but by his cousin/witness and given up witness/brother of deceased, who were the attesting witnesses---Surprisingly without stating direct relation with the deceased, said witnesses mentioned before the Investigating Officer that dead body was of deceased son of complainant and they knew him personally---Such expression was not expected from the witnesses which showed that no one claimed himself as the eye-witness when Investigating Officer arrived at the place of occurrence---Identification of dead body was not known, which was the reason memo of identification of dead body was prepared---In such circumstances, it was more than impossible that witnesses were present at the place of occurrence and in their presence, deceased was done to death---Said witnesses were chance witnesses who could not justifiably account for their presence at the place of occurrence---Thus, the testimony of said witnesses could not be relied upon---Presence of witnesses was further ruled out from the opinion of Medical Officer, who stated that cause of death was excessive blood loss---Had the witnesses been present at the place of occurrence, they would have immediately shifted the deceased to the hospital or at least made an effort to stop the oozing of blood---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Ehsan Shah v. The State PLJ 2021 Cr.C. Lah. 569 ref.

Muhammad Ali v. The State 2017 SCMR 1468 and Muhammad Akram v. The State 2016 SCMR 2081 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence and ocular account---Contradictions---Accused was charged for committing murder of the son of complainant by firing---Injuries on chest and belly were mentioned by the Medical Officer as exit wounds, thus, negating the ocular account---However, other injuries were referred by Medical Officer as entry wounds; one on back at scapular region and other on right side of abdomen in mid auxiliary line---If the accused had fired from the position as shown in the site plan then there could hardly be any chance to receive the injury on the flank with exit wound on the belly or at scapular region on the back with exit on the chest---Prosecution story had many holes to fill in; like if the deceased was sitting on the motorcycle when he received injury, then blood must have been dropped on said motor cycle but it had not been taken into possession and even some other injuries on the body due to falling from motorcycle were expected but they were missing---Medical Officer was cross-examined on such aspect by the prosecution that in order to extend favour to the prosecution he had changed the nature of injuries which was denied by him and so much so complainant or prosecution had not challenged postmortem report or opinion of Medical Officer at any stage during the investigation---Such contradiction in ocular and medical evidence led to the conclusion that witnesses were not present at the place of occurrence---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Muhammad Idrees and another v. The State and others 2021 SCMR 612; Muhammad Ashraf alias ACCHU v. The State 2019 SCMR 652 and Zafar v. the State and others 2018 SCMR 326 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged for committing murder of the son of complainant by firing---Motive behind the occurrence was the dispute of landed property between the accused and complainant party but no document showing any litigation between the parties was brought on record---Both the witnesses of ocular account and Investigating Officer conceded that no such litigation was pending before any Court---Thus, prosecution had not succeeded to establish the motive part of the occurrence---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.

(d) Criminal trial---

----Motive---Scope---Prosecution is not required to prove motive in every case, yet the same, if set up, should be proved through independent source of evidence other than the words of mouth and in case of failure to do so, the prosecution should face the consequences and not the defence.

Pathan v.The State 2015 SCMR 315 and Naveed alias Needu and others v. The State and others 2014 SCMR 1464 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Natural witness not produced--- Accused was charged for committing murder of the son of complainant by firing---Site plan showed that occurrence took place in front of house of Mr. "MA" who did not join the investigation as admitted by the complainant, and Investigating Officer had also not associated him in the investigation---Thus, most natural witness was skipped by the prosecution for reasons best known to it which fact could be read against the prosecution---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empties---Inconsequential---Accused was charged for committing murder of the son of complainant by firing---Record showed that crime empties were deposited in the office of Forensic Science Agency on 09.04.2020, the day when accused was arrested, and there was every possibility that crime empties were managed, therefore, Forensic Science Agency matching report could not be relied upon---Pistol was shown recovered later, which was also not believable in the sense that when Investigating Officer had visited the place of occurrence, family members of the accused were present and in their presence accused recovered pistol, therefore, pistol was in exclusive knowledge or possession of the accused---In the circumstances, there were doubts in sending crime empties well in time; recovery of pistol too was not from exclusive possession---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Muhammad Ashraf alias ACCHU v. The State 2019 SCMR 562 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Co-accused acquitted on the basis of same set of evidence---Effect---Accused was charged for committing murder of the son of complainant by firing---Record showed that on the basis of similar evidence, co-accused was acquitted of the charge which in turn ruled out even his presence at the spot, therefore, similar facts could not be believed on the same set of evidence against the accused---Principle of falsus in uno falsus in omnibus, with slight change, was applicable in the present case, therefore, acquittal of co-accused could be read a factor setting doubts over the prosecution story---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Art.133---Criminal trial---Cross-examination---Scope---Cross-examination should always be brief and to the point---Practice of prolonged cross-examination is deprecated.

Muhammad Shafi and 2 others v. The State PLD 1967 SC 167 andMuddassar alias Jimmi v. The State 1996 SCMR 3 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---For giving benefit of doubt to an accused a single circumstance creating reasonable doubt in a prudent mind about guilt of accused is sufficient to make him entitled to such benefit.

Najaf Ali Shah v. The State 2021 SCMR 736; Amir Muhammad Khan v. The State 2023 SCMR 566; Mst. Sarfraz The State 2023 SCMR 670; Mst. Hajira Bibi alias Seema and others v. Abdul Qaseem and another 2023 SCMR 870; Bashir Muhammad Khan v. The State 2022 SCMR 986 and Khalid Mehmood alias Khaloo v. The State 2022 SCMR 1148 rel.

Talat Mehmood Kakezai and Farooq Haider Malik for Appellant.

Shahid Fareed, Assistant District Public Prosecutor for the State.

Mirza Muhammad Azam for the Complainant.

Date of hearing: 29th November, 2023.

Judgment

MUHAMMAD AMJAD RAFIQ, J.---Ghulam Rasool, complainant and his son Munir Ahmad were standing near the Habitation camp (dera) of his cousin/brother-in-law Muhammad Nawaz in his company when at about 11:30 in the morning on 03.04.2020 they saw from a distance of two Kanals Muhammad Hussain and Muhammad Zafar, father and son inter-se intercepted the motorcycle of Muhammad Nadeem, another son of complainant at the metaled road in front of house of Mazhar Arain. Muhammad Hussain co-accused (since acquitted) commanded his son Muhammad Zafar (appellant) while handing over pistol 30-bore to kill Nadeem in order to finish dispute of landed property between the parties and within their view Zafar made two fires which were claimed as hitting at chest and belly of Nadeem who fell down on the ground. Accused while brandishing weapon of offence decamped from the place of occurrence.

1. Police reached at the place of occurrence within half an hour; Ghulam Rasool complainant (PW-1) made an oral statement before Muhammad Ali, SI (CW-7) who drafted the complaint, sent the same for registration of FIR and started process of investigation at the site. During that exercise he inspected the dead body, prepared inquest report, application for postmortem and sent the dead body to THQ Hospital under the escort of Shabbir Ahmed 731/C; collected blood-stained earth and three crime empties, made them into sealed parcels, sketched the scene of crime in a site plan, recorded statements of witnesses, obtained their signatures on related documents. Additionally, he also prepared a memo of identification of dead body, necessity whereof is not spurred out, however, it is part of record. After postmortem examination, last worn clothes were produced before him which were taken into possession. All these articles were handed over to the Moharir who on 08.04.2020 handed over two parcels said to contain blood-stained earth and crime empties for onwards transmission to the office of PFSA, which CW-7 deposited on 09.04.2020. On the arrest of Zafar (appellant) on 09.04.2020, he led to the recovery of pistol 30 bore from his house which was effected on 12.04.2020 and was sent to PFSA for analysis on 13.04.2020. The report of PFSA was received in positive. During investigation, he found Muhammad Hussain one of the accused as not involved in the commission of offence, therefore, exonerated him and consequently, the report under Section 173 Cr.P.C. was sent to the Court.

2. Being dissatisfied with the investigation, complainant filed a private complaint after 2½ months of the occurrence on 18.06.2020 upon which Muhammad Hussain and Zafar were summoned to face the trial. Charge was framed on information which was denied with a claim of trial, whereupon the prosecution produced Ghulam Rasool complainant (PW-1) and Muhammad Nawaz (PW-2) the ocular brigade; Shabbir Ahmed Constable (CW-1), Muhammad Nadeem Iqbal 1140-HC (CW-2), Sagheer Ahmed 287-C (CW-3), Muhammad Arif ASI (CW-4), Farooq Ahmad Civil Draftsman (CW-5), Dr. Ghazanfar Mehmood (CW-6), Muhammad Ali SI (CW-7) and Rashid Javed ASI (CW-8). On close of prosecution case, the accused when examined under section 342, Cr.P.C., they denied the prosecution evidence, however, neither they produced any evidence in defence nor opted to make statements under section 340(2), Cr.P.C. and the trial ended in the terms detailed above.

3. Learned counsel for the appellant contend that witnesses were not present at the place of occurrence; there was a serious contradiction in medical and ocular account because injuries on the chest and belly were declared by the doctor as exit wounds; further added that memo of identification of dead body is a question mark on the prosecution case which clearly speaks absence of witnesses at the place of occurrence; that two fires were claimed but three crime empties were collected from the place of occurrence; scaled site plan was prepared with a delay of one month and twenty-one days and there is contradiction with respect to inter-se distance between deceased and assailant in two site plans, one prepared by draftsman and other by investigating officer. Learned counsel were of the view that recovery of pistol is of no use for prosecution because it was not in exclusive possession of accused/appellant; that dispute with respect to landed property was not taken to the Court nor it was documented in any manner, therefore, motive was also not proved; that crime empties were deposited in the office of PFSA on 09.04.2020 and accused was also shown arrested on the same day, therefore, positive report is not useful for the prosecution; co-accused Muhammad Hussain on the same set of evidence has been acquitted. Learned counsel relied on cases reported as "Ehsan Shah v. The State" (PLJ 2021 Cr.C. (Lahore 569) (DB) and "Muhammad Zubair v. The State" (2021 YLR Note 60).

4. On the other hand, learned Assistant District Public Prosecutor assisted by learned counsel for the complainant supported the judgment with the stance that it was a day light occurrence; witnesses were present at a distance of two Kanals from the accused, therefore, there was no mistaken identity of accused even otherwise both the parties were related to each other. Further state that there is no contradiction in medical and ocular account when two entry wounds were also found present, one on flank and other on back of the deceased and witnesses are not expected to explain the locale of injuries with exactitude; recovery of pistol stood effected; positive PFSA report is a strong support to prosecution case. Learned counsel for the complainant had an additional take on the cross examination of witnesses conducted by the defence, claiming it as too short to give way to admission of many facts as were left out during the cross examination; thus, in turn would be read in favour of prosecution.

5. Arguments proffered by the proponent and opponent set the parties at opposite poles to advocate their viewpoints creating a standoff; it had taken much time of this court to thrash the whole evidence.

6. Ocular account was put forth by the prosecution through Ghulam Rasool complainant (PW-1) and Muhammad Nawaz (PW-2) whereas Munir son of the complainant was given up. Complainant in order to cover up the collection of three crime empties from the crime scene dishonestly improved his statement in examination in chief while deposing that accused had also made aerial firing at the site whereas no such fact was deposed by PW-2 nor it was mentioned in FIR or private complaint. It leaves a negative impact on the credibility of witnesses and doubt on prosecution story. Both the witnesses stated in unequivocal terms that fires made by the accused hit on the chest and belly of the deceased. When cross-examined on this point complainant PW-1 reaffirms this fact in following terms;

"I had got recorded in my statement before police Exh.PA that the accused persons stopped motorcycle of my son from front side. In the same position Zafar accused fired on the deceased from front side. It is incorrect to suggest that both fires neither hit the deceased in the chest nor in abdomen. Wounds on the above places are exit ones and not the entry wound."

He further conceded that what he has stated before Investigating Officer was recorded by him correctly in the complaint without any addition or omission, similar was the stance of PW-2 and he also deposed in the same way as stated by PW-1. This fact is sufficient to rule out their presence at the place of occurrence because there was no injury on the abdomen. Complainant PW-1 has not stated any particular reason of his presence at the place of occurrence and no reason for commission of murder of Nadeem was brought on record through any documentary proof. It was admitted by PW-1 that he did not produce any documents, FIR, copy of suit or litigation between the parties with respect to dispute/motive of the occurrence. During evidence, distance between the house of complainant and the place of occurrence could not be brought on record; therefore, it cannot be inferred that complainant was present near the Dera of Muhammad Nawaz witness at the particular time. Absence of witnesses is further reflected from the fact that they deposed in examination in chief that they attended the deceased, but they did not produce their clothes, if blood stained, before the Investigating Officer. Their presence at the time of occurrence is also belied from the fact that investigating officer prepared memo of identification of dead body Ex.PG at the place of occurrence which though was not attested by the complainant PW-1 but Muhammad Nawaz PW-2 cousin/brother-in-law of complainant and given up PW Munir Ahmed brother of deceased are the attesting witnesses but surprisingly without stating direct relation with the deceased, they mentioned before the investigating officer as follows:-

Such expression was not expected from the witnesses which shows that no one claimed oneself as the eye-witness when investigating officer arrived at the place of occurrence. The identification of dead body was not known, that was the reason memo of identification of dead body was prepared. In such circumstances, it is more than impossible that witnesses were present at the place of occurrence and in their presence, deceased was done to death. They were chance witnesses who could not justifiably account for their presence at the place of occurrence; therefore, their testimony cannot be relied upon. Reliance is placed on cases reported as "Muhammad Ali v. The State" (2017 SCMR 1468) and "Muhammad Akram v. The State" (2016 SCMR 2081).

1. Absence of both the witnesses PW-1 & PW-2 at the crime scene is also reflected from the fact that they deposed about riding of deceased on a motorcycle when occurrence took place but investigating officer has not taken into possession any such motorcycle from the place of occurrence. It shows that deceased died in different circumstances otherwise there was no necessity for preparation of identification memo of dead body. The presence of PWs is further ruled out from the opinion of Dr. Ghazanfar Mehmood (CW-6), who stated that cause of death in this case was excessive blood loss. Had the witnesses been present at the place of occurrence, they would have immediately shifted the deceased to the hospital or at least an effort to stop the oozing of blood. With this scanty ocular account, now I move to the medical evidence produced by the prosecution.

2. Though occurrence was of 03.04.2020 at 11:30 a.m, FIR stood registered at 01:10 p.m. and it was mentioned in the postmortem report that dead body was received in dead house at 12:30 p.m. whereas police papers were received at 03:45 p.m. and autopsy was conducted at 04:00 p.m. which clearly shows that Investigating Officer did not reach to the place of occurrence within half an hour otherwise dead body could have been dispatched with the papers in the mortuary or before the doctor well within time. Reaching of the dead body to the mortuary becomes further doubtful when Shabbir Ahmed 731-C (CW-1) stated that he reached to the hospital at 02:30 p.m. Doctor has observed following four injuries on the person of deceased;

INJURY NO.01:-

Lacerated wound with irregular margins 02cm x 1.5 cm with everted margins on left side of chest 03.0 Cm medial to left nipple. There was no burning or blackening present on cloth or wound. Corresponding hole was present on clothes. Injury No. 1 was exit wound.

INJURY NO.02:-

Lacerated wound with everted margins 02 cm x 01.05 cm irregular in shape deep going on right side of abdomen below costal margin 3.00 cm lateral to mid line in midclavicular line. There was no burning and blackening on wound or clothes. Corresponding holes were present on clothes. injury No.02 was exit wound.

INJURY NO.03:-

Lacerated wound was 01.00 cm x 0.75 cm going deep on right side of abdomen in mid axillary line with inverted margins at the level of injury No.2. There was no burning or blackening on clothes or wound. Injury No.03 was entry wound. On exploration skin, muscles, blood vessel and nerves and liver damaged.

INJURY NO.04:-

A lacerated wound was 01.00 x 01.00 cm into deep going with inverted margins on back of left side of chest at scapular region. On exploration skin muscles damaged scapular fractured left lung, ruptured nerves and blood vessels damaged. Injury No.04 for entry wound. There was no burning blackening on injury No.04. Injuries Nos.1 and 2 on the chest and belly were mentioned by the doctor as exit wounds; thus, negating the ocular account. However, Injuries Nos. 3 and 4 were referred by him as entry wounds; one on back at scapular region and other on right side of abdomen in mid auxiliary line which the learned counsel for the complainant tried to exploit but pictorial diagram shows it more clearly as on the flank. For reference an image of mid auxiliary line is reflected below.

Diagram clearly shows that mid auxiliary line is in fact depicts the flank. If the accused/appellant had fired from the position as shown in the site plan then there could hardly be any chance to receive the injury on the flank with exit wound on the belly or at scapular region on the back with exit on the chest. If this fact is conceded that a living man could not be a static object and his movement can result in injury at any part of the body, then by all means injuries must have burning or blackening because same were caused from a very close range while standing in front of motorcycle of the deceased. Thus, prosecution story has many holes to fill in; like if the deceased was sitting on the motorcycle when received injury, then blood must have been dropped on said motor cycle but it has not been taken into possession and even some other injuries on the body due to his fall from motorcycle were also expected but they were missing. Doctor was cross-examined on this aspect by the complainant's counsel that in order to extend favour to the prosecution he has changed the nature of injuries which was denied by him and so much so complainant or prosecution has not challenged postmortem report or opinion of doctor at any stage during the investigation. This contradiction in ocular and medical evidence leads to the conclusion that witnesses were not present at the place of occurrence. "Muhammad Idrees and another v. The State and others" (2021 SCMR 612) and such contradiction also helps to draw an inference that as a matter of fact the prosecution witnesses were not truthful in their stance and were not present at the place of occurrence at the relevant time and had not witnessed the occurrence. Reliance in this regard is placed on the cases "Muhammad Ashraf alias ACCHU v. The State" (2019 SCMR 652) and "Zafar v. the State and others" (2018 SCMR 326). Investigating Officer (CW-7) while responding to cross-examination conducted by the complainant's counsel stated that doctor has wrongly changed the nature of injuries otherwise, he has observed injuries on the chest and belly with smaller size but he admitted in cross-examination that he had not asked the doctor for clarification of such anomaly, if any. CW-7 probably is not speaking the truth because perusal of inquest report and injury statement clearly show that Investigating Officer has not mentioned the wounds as entry or exit in any manner, which they usually do while mentioning as however, his mala-fide is further reflected from the interpolation in inquest report and the injury statement wherein injury No.4 was added later with different writing and ink which means that such injury was added after postmortem examination. In addition to this contradiction, he has also changed the inter-se distance between accused/appellant and the deceased by making it as 06-feet because doctor has not observed any burning or blackening in the injuries which were expected in the situation when fires were made from a very close range. Claim of complainant's counsel that inter se distance is clearly and without any interpolation is mentioned in scaled site plan is outrightly rejected because it was prepared after one month and twenty-one days of occurrence. From the above situation, it is clear that Investigating Officer tried to distort the actual facts to complete the false story of prosecution.

1. Motive behind the occurrence was the dispute of landed property between the accused and complainant party but no document showing any litigation between the parties was brought on record. Both the witnesses of ocular account and investigating officer CW-7 conceded that no such litigation was pending before any Court. PW-2 stated as follows;

"During investigation we did not produce any witness regarding the motive claimed by us, we also did not produce any document in respect of the alleged motive."

Whereas investigating officer CW-7 during cross examination by the complainant's counsel responded as follows;

"The accused and complainant party are close relative interse. There was a dispute between the parties regarding landed property and it was the reason for this occurrence. However there was no record of court litigation till then."

Thus, prosecution had not succeeded to establish the motive part of the occurrence. It is trite that though the prosecution is not required to prove motive in every case, yet the same, if set up, should be proved through independent source of evidence other than the words of mouth and in case of failure to do so, the prosecution should have faced the consequences and not the defence. Reliance is placed on cases reported as "Pathan v.The State" (2015 SCMR 315) and Naveed alias Needu and others v. The State and others" (2014 SCMR 1464).

1. Site plan clearly speaks about nearby residences of accused persons on the northern side of place of occurrence, dera of Muhammad Nawaz PW-2 on western side and on the southern side house of Mazhar Arian and vacant plots of Nawaz Khokhar and Ashraf Khokhar. In this case occurrence took place in front of house of Mazhar Arian who did not join the investigation as admitted by the complainant, and investigating officer had also not associated him into the investigation, therefore, most natural witness was skipped by the prosecution for the reasons best known to them which fact could be read against the prosecution.

2. So far as recovery of pistol and its matching report is concerned, it has been observed that crime empties were deposited in the office of PFSA on 09.04.2020, the day when accused was arrested, there is every possibility that crime empties were managed; therefore, PFSA matching report cannot be relied upon; reliance is on case reported as "Muhammad Ashraf alias ACCHU v. The State" (2019 SCMR 562); pistol was shown recovered later, which is also not believable in the sense that when CW-7 had visited the place of occurrence, family members of the accused were present and in their presence accused got recovered pistol, therefore, pistol was in his exclusive knowledge or possession of the appellant. In the circumstances, there are clouds on sending crime empties well in time, recovery of pistol too was not from exclusive possession, therefore, the prosecution case fails on this evidence as well which cannot be believed in any manner.

3. On the basis of similar evidence, co-accused Muhammad Hussain was acquitted of the charge which in turn rules out even his presence at the spot, therefore, similar facts cannot be believed on the same set of evidence against the appellant and principle of falsus in uno falsus in omnibus is somewhat with slight change is applicable in this case, therefore, acquittal of co-accused can be read a factor setting clouds on the prosecution story.

4. Objection on the other side that cross examination of witnesses in this case was too short to shatter the whole case-evidence, and the important aspects in favour of prosecution, which skipped notice of, should be read as a support to the charge. It is pertinent to mention that the cross examination should always be brief and to the point; practice of prolonged cross examination has been deprecated by the Supreme Court of Pakistan in a case reported as "Muhammad Shafi and 2 others v. The State" (PLD 1967 Supreme Court 167) with following observation;

There is a regrettable practice among a class of lawyers to use prolonged cross-examination for the purpose of leading a witness into error after his alertness has been reduced through fatigue and his resistance to suggestions made in the form of leading questions has thereby been reduced. Such a practice is plainly designed not for the disclosure of truth, but for the manipulation of error, and we take this opportunity of expressing our entire disapproval of the use of such methods.

Above observation was reiterated in case reported as "Muddassar alias Jimmi v. The State" (1996 SCMR 3).

Before embarking upon what has been asked in cross examination in this case, let's have a glance how examination of a witness proceeds during the trial. In an adversarial criminal justice system, there are two parties in contest, i.e., Prosecution and Defence. Examination of witness, by the party who calls him/her, is called examination-in-chief or direct examination. Examination of that witness by opposite party is called cross examination and any question subsequent to cross examination by the party who calls the witness is called re-examination or re-direct. All three stages of examination hardly had any time-lag, therefore, any party who does not come forward to question the witness on a day, the alternate arrangement should be made because examination of a witness is a sacred business which cannot be lingered on so as to jeopardize it through intrigues, mechanicians or invented treacherous plans to kneel down or pressurize the witness. Even frequent appearance of witness in Court for giving evidence in piecemeal, not only derail the true facts due to fading of memory or other reasons but also had a bad impact on the economy of witness who had to earn bread for his family. It is for that reason usually actual witnesses do not come forward to help improve the quality of evidence. The Judge must understand this social problem. If he thinks that defence counsel is not ready to cross examine the witness, a heavy cost be imposed which is called an "adjournment cost", fully covered under section 344 of Cr.P.C. Reliance is on case reported as "Muhammad Shahid Yousaf v. The State and others" (2022 MLD 1331) or to provide counsel on state expenses but not to struck off the right of cross examination; reliance is on case reported as "Sher Hassan and others v. Gul Hassan Khan and others" (2022 SCMR 1360). Similarly, if the lawyers are observing strike or the complainant's counsel seeks time, even then Court is required to move forward with measures suggested in a case reported as "Shahbaz Kamal v. The State through Prosecutor General Punjab, Lahore and another" (2023 SCMR 421). Court must have a close eye on the cross examination of witness and if the Counsel on State expenses cannot do the job properly, judge should cross examine the witness; reliance is on cases reported as "Dikson v. Emperor" (AIR 1942 Pat. 90); "Nazir Hussain v. The State" (PLD 1986 Lah. 115); "Khadija Begum v. Nisar Ahmad" (AIR 1936 Lah. 887). If on such measures of a Judge, the advocate concerned retaliates with a behaviour which attracts misconduct or professional misconduct, it can well be reported to the High Court for an action under Section 54 (2) of the Legal Practitioners and Bar Councils Act, 1973. The Judge and an advocate are for the system to strive for search of truth; both should re-think and re-define their conduct to contribute in the system, and this is high time to stand synchronized with the international best practices which help to recognize their proper and vital roles. Judges should not work for gain or appreciation; it is a divine duty and its efficient performance always finds a support from the audience, even in the form of a one man's feedback and it is learnt through age and experience that feedback is a gift; so, work, work and work, and win the gift.

1. Coming back to conducting of cross examination; we know questioning is a technique, it is not like brandishing a Sabre but learning to handle a scalpel; examination of witness must be structured that can be in the form of a one line of transcript of each question, which means "one fact in one question", because composite question creates misunderstanding and annoyance to witness and the Judge. Defence Counsel must know his objective with every witness and should never ask a question to which he does not know the answer and his examination should be like as conversational as he can. Counsel must develop the habit of riding the bumps, which means that he must be patient, cool and calm if an unexpected reply of a witness has disturbed him.

There are some basic approaches to cross examination which lay down some rules in this respect. If somebody want guidance on the way that successful cross-examinations have operated in the past then go to Art of Cross-examination by Francis Wellman (Collier-Macmillan, 1962) and to The Art of the Advocacy by Richard Du Cann (Penguin, 3rd edition, 1982). Read the memoirs of the great advocates. Read the reports of famous trials because every person has its own technique of asking question. One may not agree with the technique of others because they get the required results and continue on it with pride. However, there are three major rules of cross-examination. General Rule, Specific Rule, Cautionary Rule and Mandatory Rule of putting your case.

General Rules.

(1) 'Be as kind as you can'; in this way you can win the sympathy of judge and also put the witness on ease to extract required information; therefore, technique of "Pitch, Pause and Pace" (PPP) would well work to achieve your objective. (2) 'Ask question in a spirit of inquiry' which means gentle and inquiring approach as not flatly to contradict a witness but to persuade him to change his view point. (3) 'Expect no help from the witness' throws light that you must go prepared while cross examining the witness with Plan-A & Plan-B, because it's like 'fishing trip' and every time you cannot catch the fish; sometime you don't get the required results, therefore, you must aim to achieve a specific purpose to every question.

Specific Rules

(1) 'Stick to the 'one line' question as much as you can; keep asking short questions which allow specific and short answer. Don't ask open question starting from words "what, when, where, why, how" because it invites long reply and also losing control on witness. (2) Avoid the multiple question; ask only one question at a time and rephrase if witness does not get it. (3) Aim for precision; aim for exactness in your questions. Mentally break down what it is you are after.

Cautionary Rules.

(1) Don't ask the question to which you don't know the answer (2) Don't suddenly draw back with a start; which means if you are landed at wrong place, don't withdraw abruptly rather move back slowly. (3) Ride the bumps (as explained above)

2024 M L D 937

[Lahore]

Before Shams Mehmood Mirza, J

Glaxo Smith Kline Pakistan Limited----Petitioner

Versus

Provincial Quality Control Board Punjab and others----Respondents

Writ Petition No. 11277 of 2024, decided on 21st January, 2024.

Drugs Act (XXXI of 1976) ---

----Ss. 11, 22, 23 & 30---Punjab Drugs Rules, 2007 , R.5---Report(s) of lab(s)---Provincial Quality Control Board---Powers---Initiation of proceedings before the Drug Court, assailing of---Provincial Quality Control Board ('Board') issued show cause notice to Manufacturer/ Pharmaceutical Company, and while rejecting its objections directed the drug inspector to initiate the complaint before the concerned Drug Court against the company---Sample of drug was declared as substandard by the Drug Testing Lab as well as National Institute of Health---Petitioner / company invoked constitutional jurisdiction of the High Court submitting that, the reports being considered as conclusive evidence, shall prejudice the petitioner/company in case the matter goes to trial---Validity---S.11 of the Drugs Act, 1976, has constituted various Provincial Quality Control Boards which are composed of experts on the subject---By virtue of Rule 5 of the Punjab Drugs Rules, 2007 , the Board, on examination of a case sent to it by the Drug Inspector , shall issue a show cause notice to the person in order to provide him an opportunity of hearing before taking the action recommended to be taken against him---In this manner, a mechanism has been provided to provide an opportunity of hearing to the person against whom, inter alia ,prosecution is intended to be initiated---Show cause notice is issued on the basis of the report of the Government Analyst Drug Testing Laboratory declaring the drug to be either spurious, substandard or adulterated---In the present case, undisputedly ,both the reports had declared the sample of the drug-in-question to be substandard---Drugs Act, 1976, provides a procedure to afford an opportunity to the drug manufacturer to put forward their defense before the Board when their drug has been found to be spurious, substandard or adulterated---This is a prior step and criminal proceedings is initiated if the Board is not satisfied with the defense put forward by the person who has prima facie committed the offence under the Drugs Act, 1976---In the present case, the Drug Inspector was directed to initiate criminal proceedings before the Drug Court for reasons already given in the impugned order---Board took a conscious decision in granting permission for prosecution of the petitioner and its employees after granting hearing to the concerned parties---Submission of the petitioner ,regarding trial being prejudicial, was not tenable as S.22(4) of the Drugs Act, 1976, itself provides that the person who is accused of committing an offence under the Drugs Act, 1976 has a right to adduce evidence in contravention of the report---Petitioner would have all the remedies available to it before the Drug Court for impugning the veracity of the reports of the two laboratories---High Court in exercise of its constitutional jurisdiction cannot substitute its opinion for that of the Board which is the specialized body for making determination on matters /issue raised in present constitutional petition ---No case for interference by the High Court was made out---Constitutional petition , filed by manufacturer of drug, was dismissed , in circumstances.

Ahmad Farooq Mir for the Petitioner.

Barrister Asad Ullah Chattha, Assistant Advocate on Court's call.

Sheraz Zaka and Muhammad Humzah Sheikh, Assistant Attorney Generals on Court's call.

Order

Shams Mehmood Mirza, J.---This writ petition calls into question order dated 01.1 1.2023 passed by the Provincial Quality Control Board (the Board) as also reports of the Drug Testing Laboratory.

1. The petitioner manufactures a drug called "Calpol", a sample whereof was sent to the Government Analyst, Drug ' Testing Laboratory, Lahore by the Inspector of Drugs. The Drug Testing Laboratory in its report dated 21.04.2020 declared the said sample to be substandard. At the request made by the petitioner, the Board directed retesting of the sample by the National Institute of Health, Islamabad. The drug in question was once again found to be substandard by the National Institute of Health, Islamabad through its report issued on 26.03.2021. A show cause notice was accordingly issued to the petitioner by the Board on 04.09.2023 to which a reply was filed objecting to the two drug testing reports. The Board, however, did not accept the validity of the objections put forward by the petitioner and issued directions to the drug inspector to initiate the complaint before the concerned drug court against the petitioner and its employees.

2. Learned counsel submits that both the reports gave widely different assay results and as such no credibility can be attached to the said reports. It is also the case of the petitioner that the Board granted extension of the time to the Drug Testing Laboratory in violation of section 24 of the Drugs Act, 1976 (the Act).

2024 M L D 951

[Lahore]

Before Muhammad Amjad Rafiq, J

Hafeez Ullah Shahid----Petitioner

Versus

ASJ/JOP and others----Respondents

Writ Petition No. 10957 of 2023, decided on 5th June, 2023.

Penal Code (XLV of 1860)---

----Ss. 420, 468 & 471---Police Order (22 of 2002), Art. 155(1)(c)---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Misconduct by the police---Accused-petitioner was charged for conducting defective investigation---For initiation of departmental action against any rank of Police Officer/Official, different authorities were authorized in the police hierarchy but for judicial prosecution respective Deputy Inspector General of Police was the authorized officer---Therefore, despite registration of FIR, sanction of prosecution further determined the continuation of proceedings against the accused Police Officer/Official---If such sanction was not available then Court could not proceed further---Where the offences are non-cognizable Police Complaints Authority can pass direction for action under S.155, Cr.P.C., for investigation with the permission of concerned magistrate or if they are scheduled offences of Anti-Corruption Establishment, reference could be sent to that department for further action---Police Complaints Authority, independent in nature by its composition as per Art. 104 of the Police Order, 2002, shall consist of a Chairperson and six members---Its establishment is essential for running the system smoothly and in accordance with prevailing law---Even otherwise it was trite that when a statute described or required a thing to be done in a particular manner; it should be done in that manner or not at all---If a complaint of neglect, failure or excess committed by any Police Officer/Official was received by the Ex-Officio Justice of the Peace, he could simply pass it to District Police Officer concerned for placing it before the Police Complaints Authority who was authorized to channelize it as per Art. 36 of the Police Order, 2002, or Ex-Officio justice of the Peace could direct the aggrieved person to approach the Police Complaints Authority by filing an application and further course of action shall be taken care of by the said authority under the law---If both the directions were not met, Ex-officio Justice of the peace can proceed as per law---Allegation of defective investigation had been leveled against the petitioner which offence was non-cognizable---No defect was found in direction passed by Ex-officio Justice of the Peace for transfer of investigation, which did not call for any interference; however, direction for registration of FIR under Art. 155(1)(c) of the Police Order, 2002, was set aside with the direction to concerned SHO to enter information in a register, maintained under S.155 of Cr.P.C. and proceed strictly in accordance with law---With these observations, petition stood disposed of.

Obaidullah Khan v. Inayatullah Khan 1998 PCr.L.J 1718; Mian Khan and others v. Inspector General of Police Punjab and others PLD 2002 Lahore 619; Zulfiqar v. Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore and 2 others 2021 P Cr. L J 1779; Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan PLD 2009 Supreme Court 879; Haider Ali and another v. DPO Chakwal and others 2015 SCMR 1724; Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lahore 470 and Mubashir Ahmed v. S.H.O., Police Station Saddar, Gujranwala and 4 others 2007 P Cr. L J 384. rel.

Khadim Hussain Tahir Hashmi for the Petitioner.

Waqas Umar, Assistant Advocate General with Muhammad Akram Asi.

Ms. Rahat Majeed, ADPP on Court's call.

Mrs. Naseem Akhtar, wife of respondent No. 5 in person.

Order

Muhammad Amjad Rafiq, J.---Briefly the facts of the case leading to the filing of instant writ petition are that on the application of Muhammad Ashraf son of Muhammad Khan (respondent No.5) containing the allegation of misappropriation of his Tractor Belarus bearing No.7217/SBA with Engine No.480681, Chassis No.05734774, an FIR No.570/2019 under sections 420/468/471, P.P.C. was registered at police station Gogera and investigation of the said case was entrusted to Hafeez Ullah Shah, ASI (Petitioner). Subsequently while suspecting defective investigation, the complainant (respondent No.5) filed an application under section 22-A (6) Code of Criminal Procedure, 1898 (Cr.P.C.) before the learned Additional Sessions Judge/Ex-officio Justice of the Peace, Okara with two-fold prayer i.e., for transfer of investigation as well as initiation of proceedings under Article 155(1)(c) of the Police Order, 2002 against the Investigating Officer. On such application, besides order for transfer of investigation, vide the same impugned order dated 09.02.2023 the SHO police station Gogera was directed to register FIR against the present petitioner under Article 155(1)(c) of Police Order, 2002, which is the precise grievance of the petitioner.

1. Learned counsel for the petitioner states that on the similar allegation a departmental inquiry was conducted against the petitioner but he was exonerated from the charge and direction of ex-officio Justice of the Peace amounts to double jeopardy. Further states that if the liability is conceded, even then no cognizable offence is committed and direction for registration of FIR under Article 155(1)(c) the Police Order, 2002 is misconceived. On the other hand, learned Counsel for the respondent states that order was perfect in the circumstances.

2. Arguments heard; record perused.

3. It has been observed that for defective investigation, Pakistan Penal Code, 1860, (P.P.C.) identifies two provisions i.e., Sections; 166(2) & 186(2) which according to the second schedule of Cr.P.C. are non-cognizable, therefore, FIR cannot be registered. If specific sections applicable to the situations fall non-cognizable, then ex-officio Justice the Peace should not have resorted to Article 155(1)(c) referred above.

4. Police an entity cannot be read in complete topsy-turviness, they hang up by overdue and expectations attached to their job description (JDs), which though rowing them into hardships yet with butch intervals and feisty sighs they move on. They feel like angels in distress situation with mighty spirits to rescue ailing souls, soaring or oppressed communities but sometimes react with boo-boo, after all they are human force and to err is human; their extra bondage in the form of long hours of duty sometimes transform their gentle instinct into hideous habits, may be due to change in chemical composition of the body so as to make them nimble or docile, the two human attributes contributory to revolt or destroy, which most of the time controls their responding abilities in comprehension or execution of orders. Principle of stick and carrot is the rule for discipline maintenance on the administrative side, that is why they are punished or rewarded for derelictions and a duty-ride but resolution and hope tagged or anchored to their spirit make them alive to serve with best of their abilities. Diversification is inherent in human beings which creates variables expecting different treatment from people at the top who should understand this difference while dealing with officers of different ranks in police. Law also suggests different processes to meet with various kinds of misdemeanours by police. Police is a major component of criminal justice system, their blood is used for intelligence, information sharing, preventing crimes, security, maintaining law and order situation, inquiries, investigation, process serving, recovery of detenus, evidence support and progression in a trial. They despite being dutiful, sometimes deflect the processes, missed the direction with failed execution of court orders, therefore, they are treated differently in law on such omissions, but Courts usually preferred to pass omnibus orders for registration of FIRs against them. Though law authorizes for such an action yet it is not the panacea but a last resort depending upon the nature of allegations. It is in the experience that power brings atrocious attitude, self-centric touch and inflated egos if remained unchecked. The police in exercise of such powers when fall in misdemeanours, they are resisted with the force of law vested on the Courts or the administrative authorities. Here are some measures to deal with different types of derelictions or misdemeanours.

During Investigation

"Section 166(2), P.P.C.: Whoever being a public servant entrusted with the investigation of a case fails to carry out the investigation properly or diligently or fails to pursue the case in court of law properly and in breach of his duties shall be punished with imprisonment of either description for a term which may extend to three year or with fine or with both.

Section 186 (2), P.P.C.: Whoever intentionally hampers, misleads, jeopardizes or defeats an investigation, inquiry or prosecution or issues a false or defective report in a case under any law for the time being in force shall be punished with imprisonment for a term which may extend to three years or with fine or with both."

Both these offences are non-cognizable, therefore, direction for initiating the process under section 155 of Cr.P.C. can be passed or aggrieved can file private complaint under such sections in respective court. Section 166, is the scheduled offences of Anti-Corruption Establishment Ordinance 1961, therefore, a reference can be sent for inquiry if it could be materialized for registration of FIR by Anti-Corruption Establishment.

Contempt of Lawful Authority

175. Omission to produce document to public servant by person legally bound to produce it. Whoever, being legally bound to produce or deliver up any document to any public servant, as such, intentionally omits so to produce or deliver up the same, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to one thousand five hundred rupees, or with both; or, if the document is to be produced or delivered up to a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to three thousand rupees, or with both.

177. Furnishing false information: Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to three thousand rupees or with both; or, if the information which he is legally bound to give respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

178. Refusing oath or affirmation when duly required by public servant to make it: Whoever refuses to bind himself by an oath or affirmation to state the truth, when required so to bind himself by a public servant legally competent to require that he shall so bind himself, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to three thousand rupees, or with both.

179. Refusing to answer public servant authorized to question: Whoever, being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him touching that subject by such public servant in the exercise of the legal, powers of such public servant shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to three thousand rupees, or with both.

180. Refusing to sign statement: Whoever refuses to sign any statement made by him, when required to sign that statement by a public servant legally competent to require that he shall sign that statement, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand, or with both.

181. False statement on oath or affirmation to public servant or person authorized to administer an oath or affirmation: Whoever, being legally bound by an oath or affirmation to state the truth on any subject to any public servant or other person authorized by law to administer such oath or affirmation, makes, to such public servant or other person as aforesaid, touching that subject any statement which is false, and which he either knows or believes to be false or does not believe to be true, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

228. Intentional insult or interruption to public servant sitting in judicial proceeding: Whoever intentionally offers any insult or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to three thousand rupees, or with both.

1. Police is bound to obey and promptly execute all lawful orders, perform other duties and exercise powers as are conferred by this Order, the Code or any other law for the time being in force as ordained under Article 4(1)(m) & (n) of Police Order, 2002, therefore, disobedience to any order passed by a court if falling in above situations can validly be applied on police officers/officials for sentence suggested therein. However, different mechanisms are in place to deal with such offences. Some of above sections could be attended with following procedure explained in Cr.P.C.

"480. Procedure in certain cases of contempt.--(1) When any such offences as is described in section 175, section 178, section 179, section 180 or section 228 of the Pakistan Penal Code is committed in the view or presence of any Civil, Criminal or Revenue Court, the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day may, if it thinks fit, take cognizance of the offence and sentence the offender to fine, not exceeding two hundred rupees, and, in default of payment, to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid.

482. Procedure where Court considers that case should not be dealt with under section 480.--(1) If the Court in any case considers that a person accused of any of the offences referred to in section 480 and committed in its view or presence should be imprisoned otherwise than in default of payment of fine, or that a fine exceeding two hundred rupees should be imposed upon him, or such Court is for any other reason of opinion that the case should not be disposed of under section 480, such Court after recording the facts constituting the offence and the statement of the accused as hereinbefore provided, may forward the case to a Magistrate having jurisdiction to try the same and may require security to be given for the appearance of such accused person before such Magistrate or if sufficient security is not given, shall forward such person in custody to such Magistrate.

(2) The Magistrate, to whom any case is forwarded under this section, shall proceed to hear the complaint against the accused person in manner hereinbefore provided."

Prosecution of offences under sections 172 to 188, P.P.C. shall ordinarily be initiated in the court of competent jurisdiction but on the complaint of concerned court/public servant as per section 195 Cr.P.C.; however, Section 228, P.P.C. can also be prosecuted under section 476 of Cr.P.C.

Offences under Police Order, 2002

155. Penalty for certain types of misconduct by police officers:- (1) Any police officer who-

(a) makes for obtaining release from service as police officer, a false statement or a statement which is misleading in material particulars or uses a false document for the purpose;

(b) is guilty of cowardice, or being a police officer of junior rank, resigns his office or withdraws himself from duties without permission;

(c) is guilty of any willful breach or neglect of any provision of law or of any rule or regulation or any order which he is bound to observe or obey;

(d) is guilty of any violation of duty;

(e) is found in a state of intoxication, while on duty;

(f) malingers or feigns or voluntarily causes hurt to himself with the intention to render himself unfit for duty;

(g) is grossly insubordinate to his superior officer or uses criminal force against a superior officer; or

(h) engages himself or participates in any demonstration, procession or strike or resorts to or in any way abets any form of strike or coercion or physical duress to force any authority to concede anything, shall, on conviction, for every such offence be punished with imprisonment for a term which may extend to three years and with fine.

(2) Prosecution under this Article shall require a report on writing by an officer authorized in this behalf under the rules.

156. Penalty for vexatious entry, search, arrest, seizure of property, torture, etc.-Whoever, being a police officer-

(a) without lawful authority, or reasonable cause, enters or searches or causes to be entered or searched any building, vessel, tent or place;

(b) vexatiously and unnecessarily seizes the property of any person;

(c) vexatiously and unnecessarily detains, searches or arrests any person; or

(d) inflicts torture or violence to any person in his custody;

shall, for every such offence, on conviction, be punished with imprisonment for a term, which may extend to five years and with fine.

157. Penalty for unnecessary delay in producing arrested persons in courts.-Any police officer who vexatiously and unnecessarily delays the forwarding to a court or to any other authority to whom he is legally bound to forward any arrested person, shall, on conviction, be punished with imprisonment for a term which may extend to one year and with fine.

1. Clauses (c) & (d) of Article 155(1) above are relevant to the subject under discussion because for willful breach or neglect of any provision of law or of any rule or regulation or any order which the police is bound to observe or obey or guilty of any violation of duty, FIR can be registered as being cognizable offences but under Article 155(2) of the Police Order, it still needs a sanction for prosecution in the form of report in writing by an officer authorized in this behalf under the rules. Article 2 (xxiii) of Police Order, 2002 says, 'rules' means rules made under this Order and as per Article 186 of Police Order, 2002 "Existing police deemed to be constituted under this Order" therefore, Police Rules, 1934 shall also be deemed applicable until the new rules are framed. As per Police Rules, 1934, Deputy Inspector General of Police is the authorized officer for granting sanction for prosecution which is as under:-

"16.11. Prosecution under Section 29, Act V of 1861.-When a disciplinary offence on the part of a police officer can be adequately punished departmentally, such officer shall not be prosecuted under section 29 of the Police Act, and no upper subordinate shall be prosecuted under that section without the sanction of the Deputy Inspector General."

(Emphasis supplied)

Section 29 of Police Act, 1861 is parametria to Article 155 of the Police Order, therefore, above mechanism would also be in place for action under Article 155 above. Similarly, in another situation, the same officer is authorized to initiate judicial prosecution.

"16.12. Judicial prosecutions:-When a police officer is departmentally punished for an offence committed in his public capacity for which he is liable to be prosecuted criminally, the Deputy Inspector General is required to satisfy himself that the course adopted was expedient in the interests of the administration, and may order a criminal prosecution if he considers it desirable."

It is held that for initiation of departmental action against any rank of police officer/official, different authorities are authorized in the police hierarchy but for judicial prosecution respective Deputy Inspector General of Police is the authorized officer. Therefore, despite registration of FIR, sanction of prosecution shall further determine the continuation of proceedings against the accused police officer/official. If such sanction is not available then court cannot proceed further. This situation has impliedly been met under section 230 of Cr.P.C. which is as under:-

"230. Stay of proceedings If prosecution of offence in altered charge requires previous sanction:-If the offence stated in the new or altered or added charge is one for the prosecution of which previous Sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the new or altered charge is founded."

If required sanction is not given then court can stay the proceeding in trial of such offence or Prosecutor can drop the prosecution of such offence under section 10(3)(f) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006.

Types of offences if committed under Article 156 of the Police Order, 2002, do not require any sanction of authorized officer and being punishable up to five years would be cognizable as per second schedule of Cr.P.C. under segment "offences against other laws", therefore after registration of FIR it shall be prosecuted through a normal course of trial. However, offence under Article 157 being punishable up to one year shall be non-cognizable as per above scheme; thus, for such offence action can be taken as per Section 155 of Cr.P.C. meant for investigation into non-cognizable offences but if some cognizable offences are also attracted in the series of act, then it shall also be investigated with cognizable offences without the permission of a magistrate. Reliance is on "Obaidullah Khan v. Inayatullah Khan" (1998 P Cr. L.J 1718).

Administrative side

1. A complete mechanism has been provided in Police Order, 2002, therefore, no new legislation is required except to make functional the following Complaints Authority.

"106. Functions of the Provincial Police Complaints Authority:- The Provincial Police Complaints Authority shall perform the following functions: -

(a) receive from District Public Safety Commission or an aggrieved person in writing on an affidavit, complaint of neglect, excess or misconduct against a Police Officer;

(b) process the complaint and refer the ordinary cases to an appropriate authority for action and report and in serious cases initiate action on its own;

(c) receive from the District Public Safety Commission or Head of District Police any report of death, rape or serious injury to any person in police custody and take steps to preserve evidence relating to such incident and request the Chief Justice of the High Court under intimation to the Government to appoint a Judge not below the District and Sessions Judge for a judicial enquiry;

(d) may appoint in appropriate cases a police officer of the same district or of a different district who is senior in rank to the officer complained against as an inquiry officer, and supervise the inquiry proceedings;

(e) send a copy of the report to the competent authority and direct him for departmental action based on the findings of the enquiry or registration of a criminal case as appropriate and direct the competent authority to submit a report about the action taken on the findings of the report;

(f) inform the complainant of the outcome of the enquiry in writing as soon as possible;

(g) where the Provincial Police Complaints Authority is not satisfied with the order in cases referred under clause (e), it may send a report to the next higher authority for revision of the order by the awarding officer and the process be repeated till it is considered by the final authority;

(h) in case of any frivolous, or vexatious complaint, initiate legal action against the complainant;

(i) may recommend disciplinary action against an enquiry officer for willful neglect or mishandling of an enquiry;

(j) prepare and send to the Government an annual report on matters relating generally to its functions, including any matter to which it considers attention of the Government may be drawn by reason of gravity or other exceptional circumstances, for laying the report before Provincial Assembly;

(k) may in consultation with the Provincial Government establish regional offices anywhere in the province."

The above regime caters to almost every situation, giving remedy to aggrieved persons, senior police officers (see Article-36) to report derelictions of police in different ranks. Police officers shall liable to be proceeded against for departmental action with or without a direction to register an FIR. It also covers the conduct of judicial inquiry with a request to Chief Justice of the High Court under intimation to the Government to appoint a Judge not below the District and Sessions Judge for said purpose. By establishing the regional offices, the grievances redressal mechanism becomes accessible to all concerned making it an inexpensive and expeditious process of taking proper action. Action against frivolous complaints is also a solution in above Article which can be materialized as under:-

"152. Penalty for frivolous or vexatious complaint:-Any person who files a complaint against the police, which on enquiry by the Police Complaints Authority is held frivolous or vexatious, shall be punished on conviction with imprisonment for six months, or with fine, which may extend to fifty thousand rupees, or with both."

Above offence is cognizable as per following Article of the Police Order, 2002:-

"153. Certain offences to be cognizable:-Notwithstanding anything contained in the Code, offences falling under Articles 148 to 152 shall be cognizable."

All the offences highlighted above except offences for contempt of lawful authority of court can simply be regulated through Police Complaints Authority which after attending it through inquiry can decide as to whether action on the departmental side be taken or FIR be registered. Where the offences are non-cognizable Police Complaints Authority can pass direction for action under section 155 Cr.P.C. for investigation with the permission of concerned magistrate or if they are scheduled offences of Anti-Corruption Establishment, reference can be sent to that department for further action.

1. The Police Order, 2002 does not specifically provide any remedy against failure, neglect or excess committed by Police Complaints Authority in taking action against the delinquent police officer/officials, therefore, the law suggested a course in the form of section 22-A (6) Cr.P.C, which was inserted through the Criminal Procedure (Third Amendment) Ordinance (Federal Ordinance No. CXXXI) of 2002 on 21.11.2002 only to cater to the requirement of newly enacted Police Order, 2002 which was promulgated on 14.08.2002. Insertion of Section 22-A (6) Cr. P.C. was also felt when this Court in a case reported as "Mian Khan and others v. Inspector General of Police Punjab and others" (PLD 2002 Lahore 619) has interpreted the powers exercisable under section 22-A & 22-B by the Sessions Judges, Additional Sessions Judges and Magistrates for appropriate direction to police authorities to perform their administrative duties properly and diligently. The above case was decided on 26th September, 2002 after promulgation of Police Order, 2002 (14.08.2002) wherein question of transfer of investigation, registration of FIR, and to prevent excess by police was discussed and it was also suggested as under:-

"The provisions of the Police Order, 2002 should also be kept in view while exercising powers in this regard, in case an aggrieved person approached the Sessions Judges with any grievance of the kind noted above, the Judges or Magistrates shall issue necessary direction to police even in the absence of any direction from the High Court and the District Nazim can also be advised to come to the aid of aggrieved party and to exercise powers under Article 35 of the Police Order, 2002."

(Emphasis supplied)

1. The cited Amendment in Cr.P.C. for insertion of section 22-A (6) was made on 21.11.2002 which is as follows:-

"[(6) An ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding-

(i) non-registration of a criminal case;

(ii) transfer of investigation from one police officer to another; and

(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties.]"

This provision was specially designed to meet with new regimes introduced in the Police Order, 2002 in the form of "Transfers of investigation, Public Safety Commission, Police Complaints Authority, and action for neglect, failure or excess committed by police officers". Police authorities particularly designed for such functions are mentioned in different Articles of the Police Order, 2002, i.e., Article 18-A (Transfer of investigation); and for neglect, failure and excess committed by Police authorities in respect of their official duties, the establishment of Federal Police Complaints Authority and Provincial Police Complaints Authority was suggested in Chapter-X of the Police Order, 2002 starting from Article 97 to 108. According to provisions of Chapter-X above the Government shall establish a Federal Police Complaints Authority for enquiring into serious complaints against the members of Federal Law Enforcement Agencies and Provincial Police Complaints Authority for enquiring into serious complaints against the police. The members of both Police Complaints Authorities shall be eminent persons of impeccable integrity with skills, knowledge and experience in such fields as may be specified by the Government. Both Police Complaints Authorities shall consist of a Chairperson and six members. Function of Provincial Police Complaints Authority has already been highlighted in preceding paragraph No. 8. If a direction passed by ex-officio Justice of the Peace is not complied with then action for disobedience of his order can be taken in the like manner as mentioned in a case reported as "Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others" (PLD 2005 Lahore 470) including registration of FIR as held in case reported as "Zulfiqar v. Additional Sessions Judge/Ex-Officio Justice of Peace,, Lahore and 2 others" (2021 P Cr. L J 1779).

1. While dictating the order, a fact was taken notice of that Articles 103 to 108 of Police Order, 2002 relating to establishment of Provincial Police Complaints Authority were shown omitted through Police Order (Second Amendment) Ordinance, 2005 (Ordinance IX of 2005); therefore, continuation of such Ordinance was checked and it was disclosed that Ordinance had elapsed after certain period as mentioned in the Constitution. However later Police Order (Amendment) Ordinance, 2007 (Ordinance No. XLI of 2007) was promulgated and such Articles of Police Order, 2002 were again omitted which fact is mentioned in the cited Ordinance at Para No.46. It was observed that said Ordinance was to be expired on 26.11.2007 but before that an emergency was imposed in the country on 03.11.2007 and through Provisional Constitutional Order (PCO), it was ordained that any Ordinance etc. in force at the time of proclamation of emergency shall remain operative and it shall be exempted from limit of Constitutional duration. This situation was taken care of by the Honourable Supreme Court of Pakistan as per judgment reported as "Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan" (PLD 2009 Supreme Court 879). The Ordinance of year 2007 supra was not declared as permanent law rather an Ordinance subject to validation by the respective legislature. It was declared that any Ordinance passed before or after 3rd November, 2007 up to 15th December, 2007 be laid before the competent authority. The relevant parts of judgment are cited as under:-

2. It may be noted that Article 4 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or, the Governor of a Province would continue in force until altered, or repealed by the President or any authority designated by him. Clause (1) of Article 5 ibid provided that an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution. Likewise, under clause (2) of the said Article, an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of November, 2007 shall also not be subject to aforesaid limitations. As a result, all the Ordinances, which were in force on 3rd November, 2007 as well as the Ordinances which were promulgated on or after 3rd November, 2007 up to 15th December, 2007 were continued in force as permanent laws and were not laid before the respective legislatures during the period prescribed by the Constitution.

186. Proclamation of Emergency and PCO No. 1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Article 270AAA and by the judgment in Tikka Iqbal Muhammad Khan's case also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Articles 89 and 128 of the Constitution, viz., four months and three months respectively from the date of their promulgation. Under Article 89 of the Constitution, an Ordinance issued by the President, if not so laid before the National Assembly, or both Houses of Parliament, stands repealed on expiration of four months from its promulgation. Similarly, under Article 128 of the Constitution, an Ordinance issued by the Governor, if not so laid before the concerned Provincial Assembly, stands repealed on expiration of three months from its promulgation.

1. It may be noted that such Ordinances were continued in force throughout under a wrong notion that they had become permanent laws. Thus, the fact remains that on the touchstone of the provisions of Articles 89 and 128 read with Article 264 of the Constitution and section 6 of the General Clauses Act, 1897, only such rights, privileges, obligations, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after 3rd November, 2007, and not thereafter, until such Ordinances were enacted as Acts by the Parliament or the concerned Provincial Assembly with retrospective effect.

2. In the light of the above, the question of validation of such Ordinances would be required to be decided by the Parliament or the concerned Provincial Assemblies. However, the period of four months and three months mentioned respectively in Articles 89 and 128 of the Constitution would be deemed to commence from the date of short order passed in this case on 31st July, 2009 and steps may be taken to lay such Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law during the aforesaid periods. This extension of time has been allowed in order to acknowledge the doctrine of or trichotomy of powers as enshrined in the Constitution, to preserve continuity, to prevent disorder, to protect private rights, the strengthen the democratic institutions and to enable them to perform their constitutional functions, which they were unconstitutionally and illegally denied under PCO No.1 of 2007. Needless to say that any validation whether with retrospective effect or otherwise, shall always be subject to judicial review on the well-recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights, or on any other available ground."

Pursuant to such judgment, through Constitution (Eighteenth Amendment) Act, 2010, Article 270AA was enacted; according to which ordinances, regulations, enactments, notifications, rules, orders or bye-laws made between the twelfth day of October, 1999 and the thirty-first day of October, 2003 and still in force shall continue to be in force until altered, repealed or amended by the competent authority, which clearly reflects that though Police Order, 2002 in its original form would remain operative until it is amended, altered or repealed by the competent authority but the ordinances promulgated thereafter and one referred above (2007) are not in the field anymore because it has not been placed before the competent authority (Respective Legislature) for further validation; therefore, any contention that Articles 103 to 108 of the Police Order, 2002 stood repealed is without any force.

1. Police Complaints Authority, independent in nature by its composition as per Article 104 of the Police Order, 2002 shall consist of a Chairperson and six members. The Governor shall appoint the Chairperson of the Provincial Police Complaints Authority whereas the Government shall appoint the members of the Provincial Police Complaints Authority on the recommendation of the Provincial Public Service Commission. Therefore, its establishment is essential for running the system smoothly and in accordance with prevailing law. Even otherwise it is trite that when a statute describes or requires a thing to be done in a particular manner; it should be done in that manner or not at all. Functioning of Police Complaints Authority has also been focused in cases reported as "Haider Ali and another v. DPO Chakwal" and others (2015 SCMR 1724); "Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others" (PLD 2005 Lahore 470); "Mubashir Ahmed v. S.H.O., Police Station Saddar, Gujranwala and 4 others" (2007 P Cr. L J 384). In Haider Ali case Supra, The Supreme Court has observed as under;

"It was also noted by us that the systemic accountability forums which were created pursuant to the Police Order, 2002, in the form of National and Provincial Public Safety Commissions and Police Complaints Authority are either inactive or not operational."

Learned Assistant District Public Prosecutor was directed to establish contact with police authorities to know about the establishment of Police Complaints Authority, who has informed later that till to date no such Authorities have been established. In the situation when after almost 21 years of the promulgation of Police Order, 2002, no effort was made to establish Police Complaints Authority, Provincial Government is directed to establish Provincial Police Complaints Authority in accordance with the mandate of Articles 103, 104 and 105 of the Police Order, 2002 as early as possible but not later than six months.

2024 M L D 979

[Lahore]

Before Raheel Kamran, J

Tanveer Sarwar----Appellant

Versus

Federation of pakistan through Ministry of Law and Justice and another----Respondents

Writ Petition No. 51021 of 2023, decided on 29th December, 2023.

Elections Act (XXXIII of 2017)---

----S. 190--- Constitution of Pakistan, Art. 199--- Constitutional petition--- Alternate and efficacious remedy--- Criminal proceedings--- Petitioner sought initiation of criminal proceedings against all those persons who did not declare gifts received from Tosha Khan in their assets declaration form--- Validity--- Jurisdiction of High Court under Art. 199 of the Constitution is subject to limitations specified therein--- High Court may exercise jurisdiction under Art. 199 of the Constitution, where it is satisfied that no other adequate remedy is provided by law to any aggrieved party for redressal of its grievance in his petition---Law under S.190 of Elections Act, 2017, has provided remedies of complaint before Sessions Judge and appeal before High Court---High Court declined to interfere in the matter as adequate remedy of complainant under S. 190 (2) of Elections Act, 2017, was available to petitioner---Constitutional petition was dismissed, in circumstances.

Ashok Kumar Pandey v. State of West Bangal and others AIR 2004 Supreme Court 280; Mian Najibuddin Owaisi v. Aamir Yar and others PLD 2011 Supreme Court 1 and Malik Din v. Chairman National Accountability Bureau and another 2019 SCMR 372. ref.

Mian Najibuddin Owaisi v. Aamir Yar and others PLD 2011 Supreme Court 1; Muhammad Salman v. Naveed Anjum 2021 SCMR 1675; Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 Supreme Court 1066 and Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 Supreme Court 644. rel.

Nadeem Sarwar for Petitioner.

Muhammad Mansoor Ali Sial, Assistant Attorney General for Respondent No. 1 (Federation of Pakistan).

Faisal Siddiqi: Amicus Curiae.

Dates of hearing: 2 October, 2023.

Judgment

Raheel Kamran, J.---The petitioner has invoked jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (‘the Constitution’) praying for a direction to the Election Commission of Pakistan (‘ECP’) to file complaints against all members of National and Provisional Assemblies who have not disclosed Toshakhana gifts in their statements of assets and liabilities.

1. Learned counsel for the petitioner contends that the concealment of Toshakhana gifts in the statement of assets and liabilities constitutes an offence under section 137(4) read with section 167(a) of the Elections Act, 2017 (‘the Act’) punishable under section 174 of the Act. He further contends that respondent No.2 has acted in a discriminatory manner to file such a complaint only against Imran Ahmed Khan Niazi, former Prime Minister of Pakistan, who has been convicted and sentenced to undergo three years imprisonment, which is in violation of Article 25 of the Constitution as no complaint has been filed against other legislators.

2. Learned counsel for the ECP states that the titled writ petition is not maintainable inasmuch as complaint against the former Prime Minister Imran Ahmed Khan Niazi was filed in response to a reference sent by the Speaker of National Assembly under Article 63(2)(3) of the Constitution whereas no such reference has been forwarded against other legislators. He maintains that respondent No.2 did not act unfairly and in discriminatory manner as proceedings were not initiated under section 137 of the Act. He further contends that since no reference against any other legislator was forwarded by the Speaker National Assembly, the Chairman Senate or the Speakers of Provincial Assemblies, therefore, complaints were not required to be filed against any of them. He adds that in terms of sub-section (4) of section 137 of the Act, the legislators may be proceeded against for committing any corrupt practice within 120 days from the date of submission of the statement which is found to be false in material particulars. He finally contends that the allegation of mala fide attributed to the ECP is patently erroneous and misconceived. Learned Law Officer for the Federation has also opposed this petition on these grounds.

3. Mr. Faisal Siddiqi Advocate, learned amicus curiae, contends that prayer in the titled petition is based on the averments made in paragraph No.4 which provides foundation of the claim whereas averments made in paragraphs Nos.5 and 6 depict the superstructure built thereon. He maintains that the allegations in paragraph No.5 are generic whereas in paragraph No.6, specific allegations have been levelled against five particular individuals. He further contends that the titled writ petition is not maintainable for the reasons that firstly, the allegations levelled in the instant petition are vague and unsubstantiated and secondly, not a single document is appended with the petition in support of such allegations. It is his contention that this Court should not entertain such petition containing vague and unsubstantiated allegation and reliance in this regard has been placed on the case of Ashok Kumar Pandey v. State of West Bangal and others (AIR 2004 Supreme Court 280) wherein the Indian Supreme Court has held that when there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, the same is to be thrown out; it should not be misunderstood as Publicity Interest Litigation or Private Interest Litigation or Politics Interest Litigation and of late Praise Income Litigation; such petition cannot be entertained on speculative foundations, premises and to make roving enquiry and the petitioner has no locus standi to file public interest litigation as a public spirited citizen. He adds that the petitioner has alternate remedy of filing complaint under section 190(2) of the Act. According to him, the petitioner is sure about five specific individuals mentioned in paragraph No.6 of the petition against whom he has an alternate remedy provided by law i.e. complaint under section 190(2) of the Act. To substantiate his plea, reliance has been placed on the case of Mian Najibuddin Owaisi v. Aamir Yar and others (PLD 2011 Supreme Court 1) wherein it was held by the Supreme Court of Pakistan that under section 94 of the Representation of People Act, 1976 a private individual could lodge complaint against any person for being involved in the corrupt practice. He finally contends that challenging prosecution on the ground of discrimination is not a valid defence to absolve of an accused from any criminal liability who is answerable for his own act and has to defend himself in a trial. In support of such contention, reliance has been placed on the case of Malik Din v. Chairman National Accountability Bureau and another (2019 SCMR 372).

4. Heard. Record perused.

5. In order to properly appreciate respective contentions of learned counsel for the parties and the amicus curiae, it would be advantageous to reproduce section 137 of the Elections Act, 2017 which reads as follows: -

“137. Submission of statement of assets and liabilities.-(1) Every Member of an Assembly and Senate shall submit to the Commission, on or before 31st December each year, a copy of his statement of assets and liabilities including assets and liabilities of his spouse and dependent children as on the preceding thirtieth day of June on Form B.

(2) The Commission, on the first day of January each year through a press release, shall publish the names of Members who failed to submit the requisite statement of assets and liabilities within the period specified under sub-section (1).

(3) The Commission shall, on the sixteenth day of January, by an order suspend the membership of a Member of an Assembly and Senate who fails to submit the statement of assets and liabilities by the fifteenth day of January and such Member shall cease to function till he files the statement of assets and liabilities.

(4) Where a Member submits the statement of assets and liabilities under this section which is found to be false in material particulars, he may, within one hundred and twenty days from the date submission of the statement, be proceeded against for committing the offence of corrupt practice.”

From perusal of section 137(1) of the Act, it is abundantly clear that an obligation has been cast upon every Member of an Assembly and Senate to submit to the ECP, on or before 31st December each year, a copy of his statement of assets and liabilities including assets and liabilities of his spouse and dependent children as on the preceding 30th day of June. Failure to submit the aforementioned statement of assets and liabilities by 15th January renders the Member of an Assembly or Senate dysfunctional and such penal consequences, as provided in section 137(3) of the Act, which makes the requirement to file the statement clearly mandatory. It is noteworthy that no offence is prescribed under section 137 of the Act to criminalize failure to file the statement of assets and liabilities. Section 137(4) of the Act, however, prescribes it to be an offence of corrupt practice where a Member of Assembly or Senate submits statement of assets and liabilities which is found to be false in material particulars and the same is punishable with imprisonment for a term which may extend to three years or with fine which may extend to one hundred thousand rupees or with both, under section 174 of the Act. A limitation period to prosecute for the offence of corrupt practice has also been prescribed under section 137(4) of the Act to be 120 days from the date of submission of statement of assets and liabilities under the said section which is found to be false in material particulars. The object of prescribing period of limitation for the offence of corrupt practice under section 137(4) of the Act is to quicken the prosecution of complaints and to rid criminal justice system of inconsequential cases displaying lethargy, inertia or indolence and to make it more orderly, efficient and just.

1. The cognizance and trial of an offence under the Act is governed by the provisions of section 190 of the Act. Section 190(2) of the Act provides that proceedings against a person involved in corrupt or illegal practice may be initiated on a complaint made by a person or the Commission. For ready reference said section is reproduced hereunder: -

“190. Cognizance and trial.—(1) Notwithstanding anything contained in any other law but subject to section 193, an offence under this Chapter shall be tried by the Sessions Judge and any aggrieved person may, within thirty days of the passing of the final order, file an appeal against the order in the High Court which shall be heard by a Division Bench of the High Court.

(2) The proceedings against a person for being involved in corrupt or illegal practice may be initiated on a complaint made by a person or by the Commission but if a complaint made by the person proves to be false, based on bad faith or is made for any ulterior motive to provide benefit to another person, the complainant shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to fifty thousand rupees or with both.

(3) The Commission may direct that the summary trial of an offence under this Act may be conducted in accordance with the provisions of Chapter XX of the Code.

Explanation.—In this section, “Sessions Judge” includes an Additional Sessions Judge.”

Even under section 94 of Representation of the People Act, 1976 an individual could lodge complaint against a person in respect of offences made cognizable under section 82 of the said Act. Reliance in this regard is placed on the case of Mian Najibuddin Owaisi v. Aamir Yar and others (PLD 2011 Supreme Court 1).

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1. Jurisdiction of this Court under Article 199 of the Constitution is subject to limitations specified therein. A High Court may exercise jurisdiction under the said Article where it is satisfied that no other adequate remedy is provided by law to any aggrieved party for redressal of its grievance raised in his petition. In the instant case, the applicable law i.e. section 190 of the Act provides remedies of complaint before the Sessions Judge and appeal before the High Court. Thus, adequate alternate remedy of complaint is available to the petitioner because of which this writ petition is not maintainable. Reliance in this regard is placed on the judgments of the Supreme Court of Pakistan in the cases of Muhammad Salman v. Naveed Anjum (2021 SCMR 1675), Rana Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010 Supreme Court 1066) and Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 Supreme Court 644).

2. Much emphasis has been laid on the alleged discriminatory act of ECP for only proceeding against the former Prime Minister of Pakistan namely Imran Ahmed Khan Niazi, however, the said respondent has refuted such allegation. It is case of the ECP that there is no discrimination inasmuch as criminal proceedings against the above-named former Prime Minister were not initiated on its own rather on a reference forwarded by the Speaker of National Assembly under Article 63(2)(3) of the Constitution on the question of his disqualification as Member of National Assembly moved by six Members of the National Assembly whereas no such reference has been forwarded against any other Member. Be that as it may, validity of prosecution and conviction of the above-named former Prime Minister of Pakistan is a matter for consideration of the Court of competent jurisdiction where his appeal against conviction and sentence is pending. As far as this Court is concerned, in view of the adequate alternate remedy of complaint provided by law to the petitioner under section 190(2) of the Act, there exists no occasion for this Court to issue a writ in the nature of mandamus on any ground whatsoever.

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1. For the foregoing reasons, this petition sans merit and is accordingly dismissed.

MH/T-1/L Petition dismissed.

2024 M L D 995

[Lahore]

Before Ch. Muhammad Iqbal, J

Gulzar Ahmad (deceased through legal heirs)----Petitioners

Versus

Rab Nawaz and others----Respondents

C.R. No. 60420 of 2021, heard on 7th November, 2023.

(a) Islamic Law---

----Inheritance--- Shares, distribution of--- Principle--- Rights and shares of each and every Muslim heir in estate of his / her deceased propositus is absolutely conclusive and finally described / determined in the Holy Quran--- Such shares are definite in nature.

Surah-tul-Nisa Ayaat Nos. 7 to 11. Marmaduke Pickthall and Urdu translation by Molana Fateh Muhammad Jalandari and Hadith Sahi Bukhari Sharif Vol.III, Page No.606 Chapter No.922 rel.

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

---- Ss. 42 & 54---Punjab Land Revenue Act (XVII of 1967), Ss. 42 & 45---Suit for declaration and injunction---Inheritance--- Limitations--- Entry in revenue record--- Scope--- Respondents / plaintiffs claimed to be legal heirs of their deceased predecessor-in-interest and had assailed mutation of inheritance in faovur of petitioners / defendants--- Suit and appeal were concurrently decreed in favour of respondents / plaintiffs by two Courts below--- Plea raised by petitioners / defendants was that the suit was barred by limitation--- Validity--- All legal heirs, after the closing of eyes by their predecessor-in-interest, had become absolute owners according to the principles of the Quran and Sunnah, to the extent of their respective shares in estate of the deceased without resorting to legal course of independent transaction--- Such ownership could not be taken away by means of any unauthorized entry in revenue record--- If any entry was made in clandestine manner with collusiveness of revenue staff, such entry was devoid of any legality and did not create any valid rights--- Main object of registration and sanctioning of mutation of inheritance was mere formality to update official record--- All legal heirs of deceased had become absolute owners of the property to the extent of their respective shares until and unless they themselves voluntarily and legally further alienated their such shares / rights and such legal heir by operation of law would become joint owner in the estate having constructive possession over their shares---No limitation runs against inheritance matters as well as against any patently void order / entry---High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of fact as there was no illegality or any other error of jurisdiction---Revision was dismissed, in circumstances.

Mst. Nur Jehan Begum through LRs v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 and Mst. Rehmat and others V. Mst. Zubaida Begum and others 2021 SCMR 1534 ref.

The Federation of Pakistan through Secretary, Law and Parliamentary Affairs, Islamabad v. Muhammad Ishaq and another PLD 1983 SC 273; Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Mst. Fazal Jan v. Roshan Din and others PLD 1990 SC 661; Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667; Sardar v. Mst. Nehmat Bi and 8 others 1992 SCMR 82; Muhammad Yousaf through Legal Heirs and 2 others v. Mst. Karam Khatoon through Legal Heirs and 2 others 2003 SCMR 1535; Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501; Fayyaz Hussain and others v. Haji Jan Muhammad and others 2018 SCMR 698; Ghulam Qasim and others v. Mst. Razia Begum and others PLD 2021 SC 812; Abdul Khaliq (deceased) through LRs. v. Fazalur Rehman and others 2022 SCMR 1665; Manzoor Hussain (deceased) through Legal Heirs and others v. Muhammad Rafique and others 2020 CLC 400; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Khan Muhammad through L.Rs. and others v. Mst.Khatoon Bibi and others 2017 SCMR 1476; Bashir Ahmad Anjum v. Muhammad Raffique and others 2021 SCMR 772 and Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 rel.

Qasim Hassan Buttar and Sohail Altaf Joiya for Petitioners.

Syed Ejaz Qutab for Respondents Nos. 1 to 6.

Muhammad Shafique Baloch and Raja Abdul Qadeer for Respondents Nos. 15 and 16.

Date of hearing: 7th November, 2023.

Judgment

Ch. Muhammad Iqbal, J.---Through this single judgment I intend to decide the titled Civil Revision [No.60420/2021] as well as Civil Revision No.58628/2021 as both these cases have arisen out of the same judgments AND decrees.

1. Through these civil revisions the petitioners have challenged the validity of the judgment and decree dated 26.03.2019 passed by the learned Civil Judge, Khushab who decreed the suit for declaration filed by the respondents Nos.1 to 6 and also assailed the judgment and decree dated 25.06.2021 passed by the learned Additional District Judge, Khushab who dismissed the appeal of the petitioners.

2. Brief facts of the case are that the respondents Nos.1 to 6/ plaintiffs filed a suit for declaration against the petitioners and respondents No.7 to 17/defendants and contended that Fateh Khan was the original owner of the suit land measuring 277 Kanal 19 Marla comprising Khewat Nos.66, 67 situated in Moza Ballowal Tehsil and District Khushab. Said Fateh Khan passed away in 1937 leaving behind Mst. Fazlan (widow), Roshna, Jhallan, Sahibzadi and Bivi (daughters) as his legal heirs and his inheritance mutation No.145 dated 24.05.1937 was incorporated in favour of Mst. Fazlan (widow) as limited owner. Thereafter, Muslims Shariat Application Act was promulgated and succession of Fateh Khan was re-opened and mutation No.335 dated 08.04.1969 was incorporated in favour of Mst. Fazlan (widow) and Mst. Sahibzadi (daughter), Ghulam Jillani and Munawar Khan (nephews). The respondents/plaintiffs contended that at the time of death, Fateh Khan had four daughters and one widow but while incorporating mutation No.335, three daughters namely Roshna, Jallan and Bivi were deprived from the inheritance. Mst. Bivi passed away in 1961 and her husband/Sher Muhammad (respondent No.6) challenged the validity of mutation No.335 before the Collector Joharabad, who vide order dated 28.07.1969 remanded the matter for correction of said mutation after incorporation of all legal heirs of Fateh Khan deceased. In the post remand proceedings mutation No.14 dated 30.01.1982 was incorporated but in the said mutation, names of other three daughters of Fateh Khan namely Roshnai, Jallan and Mst. Bivi were again not incorporated as per Shariah. The respondents/plaintiffs filed application for correction of the revenue entries before the District Collector Khushab who vide order dated 11.11.2013 advised the respondents/plaintiffs to approach Civil Court for redressal of their grievance. Hence, the suit was filed.

The petitioners/defendants filed contesting written statement whereas the other defendants were proceeded against ex-parte. Out of the divergent pleadings of the parties, the trial Court framed following issues:-

1. Whether the Fateh Khan son of Wali Muhammad was succeeded by Fazlan as wife, Roshana, Jalan, Sahab Zadi and Bevi as daughters? OPP

2. Whether plaintiff/predecessor plaintiffs are entitled to succeed inheritance of Fateh Khan son of Wali Muhammad? OPP

3. Whether mutation No.335 dated 08.01.1961 and subsequent mutation No.14 dated 30.01.1982 were sanctioned fraudulently by depriving all the legal heirs of Fateh Khan including Bevi and Jalan and above said mutations are liable to be set aside qua rights plaintiffs? OPP

4. Whether plaintiffs are entitled to get decree of declaration as prayed for? OPP

5. Whether Sahab Zadi was the only daughter of Fateh Khan out of his wedlock with Fazlan? OPD

6. Whether predecessor of plaintiffs were not legal heirs of Fateh Khan? OPD

7. Whether plaintiffs were estopped by their own words and conduct to file this suit? OPD

8. Whether this court lacks jurisdiction to entertain this suit as mutation was sanctioned during consolidation proceedings? OPD

9. Whether impugned mutations were sanctioned in accordance with law? OPD

10. Whether this suit is liable to be dismissed with cost? OPD

11. Relief.

And recorded pro and contra evidence of the parties and finally decreed the suit vide judgment and decree dated 26.03.2019. Being aggrieved, the petitioners filed appeal which was dismissed by the appellate Court vide judgment and decree dated 25.06.2021. Hence, these civil revisions.

1. I have heard learned counsels for the parties and have gone through the record.

2. To prove the assertions made in the plaint and to dislodge the onus of issues Nos.1 to 4, respondent/Rab Nawaz appeared as P.W.1 and deposed that the suit property was owned by Fateh Khan son of Wali; that Fateh Khan passed away in the year 1937 leaving behind a widow Fazlan as well as four daughters namely Roshnai, Jallan, Bivi and Sahibzadi; that after the death of Fateh Khan, mutation of inheritance No.145 dated 24.05.1937 was entered in favour of Fazlan as limited owner; that after promulgation of Shariat Act, the limited ownership was abolished upon which revenue officials incorporated mutation No.335 whereby Fazlan (widow) got 1/8 share and Sahibzadi (daughter) got 1/2 share whereas the names of other three daughters were omitted at the time of recording of said inheritance mutation; that the daughters were alive at the time of death of Fateh Khan; that husband of Mst. Bivi namely Sher Muhammad filed an application against mutation No.335; that Mst. Bivi died in 1961; that the death certificate was produced before the District Collector who remanded the matter with the direction that if at the time of death of Fateh Khan, Mst. Bivi, Jallan and Roshnai were alive, their respective shares may be given to them; that in remand the Revenue Officer did not send any notice to the plaintiffs nor summoned them; that Sher Muhammad filed an application for compliance of remand order upon which it revealed that a fresh mutation No.14 was incorporated in 1982 in the revenue record; that they filed an application for correction of the said mutation; that Ghulam Farooq defendant got recorded his statement that if the plaintiffs are entitled for share as per Shariah, they would have no objection on correction of mutations; that the District Collector observed that the matter is complicated one as such the plaintiffs should approach Civil Court. Sher Muhammad (P.W.2) also fully supported the stance of the respondents/plaintiffs. Despite lengthy cross examination, the witnesses remained firm on their stance.

3. Conversely, the petitioners/defendants produced sole witness namely, Ghulam Farooq (D.W.1) who deposed that:

He deposed during cross examination that:

1. Admittedly, Fateh Khan, owner of the suit land, died in 1937 leaving behind one widow (Mst. Fazlan) and four daughters (Mst. Roshna, Jallan, Bivi and Sahibzadi) as his legal heirs but his inheritance mutation was entered in favour of his widow as limited owner. After promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1948 the inheritance mutation of Fateh Khan was reviewed but again his three daughters i.e. Mst. Roshna, Jallan and Bivi were excluded from his inheritance. The relationship of respondents/plaintiffs with Fateh Khan as daughter as well as depriving them from the legacy of their deceased predecessor are admitted by the respondents/defendants, thus admitted facts need not to be proved. Reliance is placed on the cases of Mst. Nur Jehan Begum through LRs v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300) and Mst. Rehmat and others v. Mst. Zubaida Begum and others (2021 SCMR 1534).

2. Admittedly, deceased Fateh Muhammad Khan as well as the parties to lis are Muslims by faith and followers of Quran and Sunnah. Even as per Article 227 of the Constitution of the Islamic Republic of Pakistan, 1973, the principles of Quran and Sunnah are admitted as supreme law of this country and all provisions, rules, regulations are to be legislated and framed within the precincts of Islamic principles. For reference, Article 227 of the Constitution of Islamic Republic of Pakistan, 1973 is reproduced as under:-

227. Provisions relating to the Holy Quran and Sunnah.-(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions.

Explanation.-In the application of this clause to the personal law of any Muslim sect, the expression “Quran and Sunnah” shall mean the Quran and Sunnah as interpreted by that sect.

(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.

(3) Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens.

As the predecessor-in-interest of the parties of the lis as well as the parties themselves are Muslims and principles of Quran and Sunnah are mandatorily and manifestly applicable upon them as well. The shares of each and every Muslim inheritor have conclusively been prescribed in Holy Quran. Allah Almighty has ordained the Muslims to decide their disputes as per the principles of the Holy Quran as described in following verses:

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The rights or shares of each and every Muslim heirs in the estate of his/her deceased propositus is absolutely, conclusively and finally described/determined in the Holy Quran, which shares are definite in nature. In this regard, it is expedient to take guidance from the Holy Quran, particularly from Surah tul Nisa Ayaat Nos.7 to 11 (English translation whereof by Marmaduke Pickthall and Urdu translation by Molana Fateh Muhammad Jalandari) are reproduced as under:-

7. Unto the men (of a family) belongeth a share of that which parents and near kindred leave, and unto the women a share of that which parents and near kindred leave, whether it be little or much. A legal share.

8. And when kinsfolk and orphans and the needy are present at the division (of the heritage), bestow on them therefrom and speak kindly unto them.

9. And let those fear (in their behaviour toward orphans) who if they left behind them weak offspring would be afraid for them. So let them mind their duty to Allah, and speak justly.

10. Lo! Those who devour the wealth of orphans wrongfully, they do but swallow fire into their bellies. And they will be exposed to burning flame.

11. Allah commands you concerning (the provision for) your children; to the male the equivalent of the portion of two females, and if there be only women more than two, then theirs is two-thirds of the inheritance, and if there be one (only) then for her is the half. And to each of his parents a sixth of the inheritance, if he have a son; and if he have no son and his parents are his heirs, then to his mother appertaineth the third; but if he have brethren, then to his mother appertaineth the sixth, after any legacy he may have bequeathed, or debt (hath been paid). Your parents and your children: Ye know not which of them is nearer unto you in usefulness. It is an injunction from Allah. Lo! Allah is knower, Wise.

Further in Surah tul Nisa, Ayat No.33 as well as 176, it has been ordered as under:-

Further in the most authenticated book of Hadith (Sahi Bukhari Sharif Vol.III, relevant at Page No.606 Chapter No.922) the shares of the legal heirs of a deceased have also been described as under:-

Moreover, according to Section 2 of the Muslim Personal Shariat Application Act, 1937, the Shariat Laws were made applicable where the parties are/were Muslims. Section 2 of the Act ibid is reproduced as under:

2. Application of Personal Law to Muslim.-Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarat maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs other than charities and charitable institutions and charitable and religious endowments the rule of decisions in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)

Section of 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948 in this regard is also reproduced as under:

“3. In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any such person before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat);

Provided that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last owner, shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death.”

The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was also promulgated in this regard, Section 2 whereof is reproduced as under:

2. Application of the Muslim Personal Law.— Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims.”

Reliance in this regard is placed on cases titled as The Federation of Pakistan through Secretary, Law and Parliamentary Affairs, Islamabad v. Muhammad Ishaq and another (PLD 1983 SC 273), Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 SC 407), Mst. Fazal Jan v. Roshan Din and others (PLD 1990 SC 661), Ismail and another v. Ghulam Qadir and others (1990 SCMR 1667), Sardar v. Mst. Nehmat Bi and 8 others (1992 SCMR 82), Muhammad Yousaf through Legal Heirs and 2 others v. Mst. Karam Khatoon through Legal Heirs and 2 others (2003 SCMR 1535), Ghulam Haider and others v. Murad through Legal Representatives and others (PLD 2012 SC 501), Fayyaz Hussain and others v. Haji Jan Muhammad and others (2018 SCMR 698), Ghulam Qasim and others v. Mst. Razia Begum and others (PLD 2021 SC 812), Abdul Khaliq (deceased) through LRs. v. Fazalur Rehman and others (2022 SCMR 1665) and Manzoor Hussain (deceased) through Legal Heirs and others v. Muhammad Rafique and others (2020 CLC 400).

| | | | --- | --- | | | | | --- | | | |

1. As regard the objection of the petitioners/defendants that the suit is time barred. Admittedly, the moment Fateh Khan closed his eyes, all his legal heirs according to the principles of Quran and Shariah became absolute owner to the extent of their respective shares in estate of the deceased and without resorting to the legal course of independent transaction, the said ownership cannot be taken away by means of any unauthorized entry in the revenue record and if any entry is made in clandestine manner with collusiveness of the revenue staff, such entry is devoid of any legality and creating any valid right. The main object of registration and sanctioning of mutation of inheritance is mere formality to update the official record whereas all legal heirs of a deceased become absolute owners of the property to the extent of their respective share until and unless they themselves voluntarily and legally further alienate their said share/right and the said legal heirs by operation of law become joint owners in the estate having constructive possession over their share and no limitation runs against the inheritance matters as well as against any patently void order entry. Reliance is placed on a latest judgment cited as Ghulam Qasim and others V. Mst. Razia Begum and others (PLD 2021 SC 812) wherein the Supreme Court of Pakistan has held as under:

“4. Immediately on the death of a person, his/her legal heirs become owner of his estate under Muslim law. In the case of Ghulam Ali v. Mst. Ghulam Sarwar Naqvi it was held that:

The main points of the controversy in this behalf get resolved on the touchstone of Islamic law of inheritance. As soon as an owner dies, succession to his property opens. There is no State intervention or clergy’s intervention needed for the passing of the title immediately, to the heirs. Thus, it is obvious that a Muslim’s estate legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction.

The above-noted principle has been continuously affirmed, including in the cases of Mst. Reshman Bibi v Amir, Mirza Abid Baig v Zahid Sabir, and Farhan Aslam v Mst. Nuzba Shaheen.

Another reliance is placed on the cases titled as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), Khan Muhammad through L.Rs. and others v. Mst.Khatoon Bibi and others (2017 SCMR 1476) and Bashir Ahmad Anjum v. Muhammad Raffique and others (2021 SCMR 772). Thus, the argument of learned counsel for the petitioners/defendants is hereby repelled.

| | | | --- | --- | | | | | --- | | | |

1. Learned counsel for the petitioners has not pointed out any illegality or material irregularity, mis-reading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioners which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).

2. In view of above, both these civil revisions being devoid of any merit are dismissed. No order as to costs.

MH/G-10/L Revision dismissed.

2024 M L D 1015

[Lahore]

Before Tariq Saleem Sheikh, J

Muhammad Waqar alias Fauji---Petitioner

Versus

The State and another---Respondents

Criminal Misc. No. 76558 of 2022, decided on 7th March, 2023.

Criminal Procedure Code (V of 1898)---

----S. 526---Transfer application---Petitioner through application under S. 526, Cr.P.C., sought transfer of case from one Court to other Court at Headquarter---In the present case, on 12.10.2022, the police produced the petitioner before the Magistrate in custody while other accused appeared on his own because he was on bail---Magistrate observed that the case was exclusively triable by the Court of Session and mechanically forwarded it to the Sessions Judge, for "appropriate orders"---As per Letter No. 7886/RHC/MIT dated 25.5.1999, Magistrate was obligated to ask the accused whether they preferred that their trial be held at the District Headquarters or the Sub-Division when they appeared before him---Magistrate was required to document the fact that he had provided such an option to the accused---Nothing on the record indicated that Magistrate gave the petitioner and his co-accused that choice---File was placed before the Sessions Judge on 17.10.2022---However, it did not appear from the record that the petitioner or his co-accused attended the Court of Sessions Judge---Sessions Judge unilaterally entrusted the case to Additional Sessions Judge, who fixed 20.10.2022 as the hearing date before him---On the said date, said Additional Sessions Judge was on leave and Duty Judge took up the case and issued a summons to co-accused persons---Petitioner was produced before Duty Judge in custody and the Duty Judge also did not inquire whether he wanted the trial to be held at the District Headquarter or the Sub-Division---Letter No. 7886/RHC/ MIT dated 25.5.1999 had given the accused a valuable right to choose the place of trial which could not be denied to him---Petition was allowed and case was transferred to the Sessions Judge.

Ch. Muhammad Ibrahim Goraya for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General for the State.

Muhammad Rizwan Waseem for Respondent No.2.

Order

Tariq Saleem Sheikh, J.---Respondent No.2 lodged FIR No.613/2021 dated 19.12.2021 at Police Station City Shakargarh, District Narowal, against the Petitioner and two others, including Zahid Hussain and Irfan alias Panni, accusing them of the murder of Shahid Naseer. The police investigated the case and submitted a report under section 173 Cr.P.C. before the Magistrate Section-30, Shakargarh, on 12.10.2022. He submitted the case (which was flagged as "The State v. Fauji Waqar etc.") to the Sessions Judge, Narowal. On 20.10.2022, the latter entrusted it to Mr Asif Bashir, Additional Sessions Judge, Shakargarh. On 20.10.2022, Mr Asif was on leave so the police produced the Petitioner in custody before the Duty Judge at Shakargarh. He summoned co-accused Zahid and Irfan to stand trial. By this petition under section 526 Cr.P.C., the Petitioner seeks the transfer of the aforesaid case from the court of Mr Arif Bashir to another court of competent jurisdiction at the District Headquarters Narowal.

1. The Petitioner's grievance is that the instructions issued by this Court have not been followed for determining the venue of trial in the above-mentioned case.

2. The Petitioner had not impleaded Zahid Hussain and Irfan alias Panni in this petition. This Court admitted them as Respondents Nos.3 and 4 by order dated 16.2.2022. They were issued notices but have not shown up to oppose this petition.

3. Heard. Record perused.

4. This Court issued the first instructions regarding the trial of sessions cases vide Letter No.2071/RHC dated 29.11.1997, which is reproduced below:

| | | --- | | LAHORE HIGH COURT, LAHORE No. 2071/RHC. From The Registrar, Lahore High Court, Lahore. To All the District and Sessions Judges in the Punjab. Dated Lahore the 29th November 1997. Subject: TRIAL OF SESSIONS CASES AT THE DISTRICT HEADQUARTERS Sir, The Hon'ble Chief Justice and Judges have been pleased to direct that henceforth all the sessions cases shall be tried at the District Headquarters. The cases in which trial has not yet commenced shall stand transferred to the respective District and Sessions Judges for entrustment to the Additional District and Sessions Judges at the District Headquarters. However, all those cases in which a charge has been framed/trial has commenced shall be finalized in the courts in which they are presently pending. (Moazzam Hayyat) Registrar |

1. The above-said directive was followed by Letter No.2102/RHC/MIT dated 11.12.1997, which read as follows:

| | | --- | | LAHORE HIGH COURT, LAHORE No. 2102/RHC/MIT From The Registrar, Lahore High Court, Lahore. To All the District and Sessions Judges in the Punjab. Dated Lahore, the 11th December 1997. Subject: TRIAL OF SESSIONS CASES AT DISTRICT HEADQUARTERS Sir, In continuation of this Court's Circular Letter No. 2071/RHC, dated 29.11.1997, I am directed by the Hon'ble Chief Justice and Judges to say that bail applications in sessions cases shall be heard at the respective Sub-Divisions only during the stage of investigation, but once the challan, complete or incomplete, is submitted in Court then the bail applications shall be disposed of at the District Headquarters. 2. It is also clarified that all the Hudood cases under Ordinance VII of 1979 shall be tried at the respective Tehsil headquarters, as before. Your obedient servant, REGISTRAR |

1. Thereafter, in supersession of Letter No.2071/RHC dated 29.11.1997, this Court issued the following direction on 25.5.1999:

| | | --- | | LAHORE HIGH COURT, LAHORE No.7886/RHC/MIT 25th May 1999 From Abdus Salam Khawar, Member Inspection Team, Lahore High Court, Lahore. To All the District and Sessions Judges in the Punjab. Subject: TRIAL OF SESSIONS CASES AT SUB- DIVISIONAL HEADQUARTERS In supersession of the Letter No. 2071/RHC dated 29.11.1997, I am directed by the Hon'ble Chief Justice and Judges to say that ordinarily the trial of sessions cases (except Hudood cases) shall be conducted at the district headquarters. However, accused will be given the option of the trial at the Sub-Division at the time of his appearance before the Magistrate for purpose of Section 190 Cr.P.C. Such an option shall be duly recorded by the learned Magistrate. In case there is more than one accused and all the accused do not agree to the trial at Sub-Division, the District and Sessions Judge shall, at his discretion, decide the place of trial. 2. As regards the bail petitions filed during the investigation the Circular letter No. 2012/RHC/MIT dated 11.12.1997 shall be followed. Accordingly, the bail applications in the sessions cases shall be heard at the respective Sub-Divisions only during the stage of investigation, but once the accused has opted to have his trial at the Headquarters or Sub-Division, thereafter, bail application shall only be entertained by the Trial Court. Furthermore, it is clarified that all the Hudood cases under Ordinance VII of 1979 shall continue to be tried at the respective Tehsil Headquarters as before. All concerned be informed accordingly. 3. Kindly acknowledge receipt of this letter. Your obedient servant, (Member Inspection Team) |

1. According to the above instructions, sessions cases (excluding Hadood cases) should normally be tried at the District Headquarters. Nonetheless, when the accused appears before the Magistrate for the purpose of section 190 Cr.P.C., he should give him the choice of a trial at the sub-division. If there are multiple accused and they all do not consent to the trial at the sub-division, the Sessions Judge shall decide the place of trial at his discretion.

2. In the present case, on 12.10.2022, the police produced the Petitioner before the Magistrate in custody while Zahid Hussain appeared on his own because he was on bail. The Magistrate observed that the case was exclusively triable by the Court of Session and mechanically forwarded it to the Sessions Judge, Narowal, for "appropriate orders". As per Letter No. 7886/RHC/MIT dated 25.5.1999, reproduced above, he was obligated to ask the accused whether they preferred that their trial be held at the District Headquarters or the Sub-Division when they appeared before him. He was required to document the fact that he had provided such an option to the accused. Nothing on the record indicates that he gave the Petitioner and his co-accused that choice.

3. The file was placed before the Sessions Judge, Narowal, on 17.10.2022. However, it does not appear from the record that the Petitioner or his co-accused attended his court. He unilaterally entrusted the case to Mr Asif Bashir, Additional Sessions Judge, Shakargarh, who fixed 20.10.2022 as the hearing date before him. On the said date, Mr Asif was on leave. The Duty Judge took up the case and issued a summons to Zahid and Irfan. The Petitioner was produced before him in custody. The Duty Judge also did not inquire whether he wanted the trial to be held at the District Headquarters or the Sub-Division.

4. Letter No. 7886/RHC/MIT dated 25.5.1999 gives the accused a valuable right to choose the place of trial which cannot be denied to him. If the complainant party has any issue, it has a legal remedy under section 526 Cr.P.C.

5. Since Respondents Nos.3 and 4 have not contested this petition, the Petitioner's request must be granted. Accordingly, the case titled "The State v. Fauji Waqar etc." is withdrawn from Mr Asif Bashir and transferred to the Sessions Judge, Narowal.

6. Respondent No.2 prays that the transferee court may be directed to decide the case as soon as possible. The Deputy Prosecutor General has no objection. Therefore, the Sessions Judge, Narowal, is directed to proceed with the case expeditiously and ensure its conclusion within six months from the date of receipt of a certified copy of this order.

7. Disposed of.

JK/M-102/L Petition allowed.

2024 M L D 1070

[Lahore]

Before Asjad Javaid Ghural and Shakil Ahmad, JJ

Commissionerate of Afghan Refugees---Appellant

Versus

The State and another---Respondents

Criminal Appeal No. 74897 of 2023, heard on 18th April, 2024.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), Ss.9& 74---Vehicle used in transportation of narcotic---Release of vehicle on superdari---Owner having no knowledge of the vehicle being used for transporting narcotics---Effect---If the owner of the vehicle is not the accused of the case and has no knowledge that his vehicle would be used for trafficking narcotics, the provisions of S.74 of the Control of Narcotic Substances, Act 1997 ("CNSA 1997") shall not create any bar for giving the vehicle to him on temporary custody --- In the present case the narcotics were not recovered from the secret cavity of the vehicle in question which was being driven by the accused, rather the same were found lying in the trunk of the car and said accused himself handed over the same to the complainant/inspector---Admittedly, the vehicle in question was owned by the appellant/ Commissionerate of Afghan Refugees---Keeping in view the principles of law on superdari (temporary custody), and appellant being in possession of valid documents showing its undisputed ownership, the appellant was entitled to the custody of vehicle in question---High Court ordered that the vehicle in question be given to the appellant on superdari subject to furnishing of surety bonds with the direction that the appellant shall be bound to produce the vehicle before the trial court as and when so required during trial, and that the appellant shall also furnish an affidavit to the effect that he will not dispose of the vehicle till the final decision of the case---Appeal was allowed accordingly.

Allah Ditta v. The State 2010 SCMR 1181 and Amjad Ali Khan v. The State and others PLD 2020 SC 299 ref.

Muhammad Ahmad Pansota for Appellant.

Hammad Akbar Wallana, Special Prosecutor ANF for Respondent No. 2.

jUDGMENT

Shakil Ahmad, J.--- This is an appeal that has been filed by Commissionerate of Afghan Refugees (Ministry of Saffron) through its Transport Officer (appellant herein) under section 48(1) of the Control of Narcotic Substances Act, 1997 ("CNSA, 1997") to impugn order dated 09.05.2023 passed by learned Additional Sessions Judge/Judge Special Court CNSA, Faisalabad, whereby an application moved by appellant for Superdari of Car Toyota Yaris white colour bearing Registration No.GAA-250 Model 2022 Engine No.2A50401, Chasis No.NSP 150R7031764 (hereinafter referred to as "vehicle in question') was dismissed.

1. Heard learned counsel for the parties. Record perused.

2. Section 32 of the CNSA, 1997 mandates that the receptacles or packages and the vehicles, vessels and other conveyances used in carrying narcotic drugs and substances should be liable to confiscation. Undeniably, narcotics were not recovered from the secret cavity of the vehicle in question which was being driven by Syed Asif Shah rather the same was found lying in the trunk of the car and said accused himself handed over the same to the complainant/inspector. Admittedly, the vehicle in question is owned by the appellant/Commissionerate of Afghan Refugees. The Supreme Court of Pakistan in the case of Allah Ditta v. The State (2010 SCMR 1181) held that if the owner of the vehicle is not accused of the case and has no knowledge that his vehicle would be used for trafficking the narcotics, the provisions of Section 74 of CNSA, 1997, shall not create any bar for giving the vehicle to him on temporary custody. Reliance can also be placed on case Amjad Ali Khan v. The State and others (PLD 2020 SC 299) wherein the Supreme Court of Pakistan has held as under:-

"11. Joint reading of Ss. 32 and 74 of CNSA show that an applicant can seek release of a vehicle on superdari, which has been seized under CNSA and is a case property in a criminal case; if the applicant can show that he is the lawful owner of the vehicle; that he is neither the accused nor an associate or a relative of the accused or an individual having any nexus with the accused. While the prosecution has to show that the applicant knew that the offence was being or was to be committed. Under S.33 if the vehicle is finally held not liable to confiscation it can be released to its owner. As a corollary, where the court can pass a final order, it can also pass an interim order. Therefore, a vehicle can also be released as an interim measure or temporarily on superdari under CNSA after the court is prime facie satisfied regarding the ownership of the applicant and the absence of the association of the owner with the accused and the commission of the offence. The applicant while asserting his ownership of the vehicle must specify in his application for superdari how he was deprived of the vehicle, how and when he found out that his vehicle was missing, and the legal proceedings initiated by him thereafter, if any. This becomes important in the light of S.109 of MVO which attracts criminal liability if one drives a vehicle without the consent of the owner. On the other hand, in order to oppose the release of vehicle on superdari, the prosecution has to prima facie show from the record that the owner knew that the offence was being or was to be, committed. It is underlined that it is during the trial that the prosecution has to prove that the owner knew that the offence was being or was to be, committed."

Keeping in view the principles of law of Superdari (temporary custody), being in possession of valid documents showing its undisputed ownership, appellant is entitled to the custody of vehicle in question.

1. The upshot of the above discussion is that the impugned order is not sustainable, which is hereby set aside by allowing this appeal. The vehicle in question is ordered to be given to the appellant on superdari subject to furnishing of surety bonds in the sum of Rs.2,00,000/- with one surety in the like amount to the satisfaction of the learned trial court. It is made clear that appellant shall be bound to produce the vehicle in question before the learned trial court as and when so required during trial. Appellant shall also furnish affidavit to the effect that he will not dispose of the vehicle till the final decision of the case.

MWA/C-15/L Appeal allowed.

2024 M L D 1086

[Lahore]

Before Asim Hafeez, J

Dr. Ummara Munir---Petitioner

Versus

Federation of Pakistan through Secretary Ministry of National Health Services, Regulation and Coordination (NHRSR&C), Government of Pakistan, Islamabad and others---Respondents

Writ Petition No. 82061 of 2022, decided on 28th April, 2023.

Constitution of Pakistan---

----Art. 199---Medical qualification---Claim for exemption from requirements of FCPS Part-I---Eligibility---Legitimate expectation, doctrine of---Applicability---Petitioners / doctors claimed to have acquired qualification of MCPS and sought exemption from requirements of FCPS Part-1---Petitioners / doctors claimed eligibility based on certificates of recognition of experience and sought protection against change in exemption rules on the premise of doctrine of legitimate expectation---Validity---Pakistan Medical and Dental Council disowned issuance of equivalence certificates and claim of legitimate expectation failed on merits---No vested right could be claimed to displace the effect of revised exemption rules---Neither doctrine of procedural legitimate expectation nor substantive legitimate expectation was attracted--- No unambiguous assurance / representation was made by CPSP to petitioners / doctors nor any such assurance was pleaded---Legitimacy of expectation was not established and consequently doctrine was not available---High Court declined to invoke judicial review jurisdiction to review legality of decision of CPSP---Constitutional petition was dismissed in circumstances.

Pakistan through Secretary Ministry of Commerce and 2 others v. Salahuddin and 3 others PLD 1991 SC 546; Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315; Mst. Fatima Faryad and others. v. Government of Punjab and others 2020 CLC 836; Dewan Salman Fibre Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance and others 2015 PTD 2304; R v. North and East Devon Health Authority, ex parte Coughlan [2001] QB 213; [2000] 2 WLR 622; Associated Picture Houses Ltd. v Wednesbury Corp. 1948 1 K.B.223; Prof. Paul Craig in the Textbook, Administrative Law (Sweet & Maxwell) Seventh Edition 2012 at page 688 and R. (Bibi) v. Newham London Borough Council [2002] 1 WLR 237 ref.

Regina (Patel) v General Medical Council 2013 1 WLR 2801 and 2013 EWCA Civ 327 distinguished.

Muhammad Nadeem Iqbal Zahid for Petitioners.

Waseem Majeed Malik, Addl, A.G.

Sheraz Zaka, Assistant Attorney General.

Mudassar Naveed Chattha and Javed Gill for Respondents Nos. 2 and 3.

Hafiz Muhammad Asad Muneer representative of PM&DC/Respondent No.6 along with Dr. Habib Ullah, AR PM & DC Regional Officer, Lahore.

Date of hearing: 6th April, 2023.

Judgment

ASIM HAFEEZ, J.---This and connected constitutional petitions, bearing W.P. No. 82054/2022 and W.P. No. 82066/2022 raise common questions of law, and are decided collectively through this single decision.

Controversy in nutshell:

1. Grievance summed up is that petitioners, who claimed to have had acquired the qualification of MCPS, seek exemption from requirements of FCPS Part-1 ('exemption claimed'), claiming that upon lapse of 5 years, after having the qualification of MCPS, petitioners become eligible for exemption. Petitioners claimed that Pakistan Medical and Dental Commission (PM&DC) considers and acknowledges the qualification(s) of MCPS, being equivalent to M.Phil., therefore, in acknowledgment of such equivalence, College of Physicians and Surgeons of Pakistan (CPSP) shall also consider and acknowledge the equivalence of MCPS as M.Phil., for the purposes of allowing the exemption claimed by petitioners, in the disciple of 'Forensic Medicine'. Petitioners had requested for grant of exemption from the requirements of FCPS Part-I but declined, thorough intimation dated, 31.05.2021, by CPSP in wake of change in the exemption rules, notified through Notification No. Ref # CPSP/Sect/202/70 dated 26th February 2020 ('Impugned Notification'). Petitioners seek judicial review of the decision(s) of CPSP under the doctrine(s) of 'legitimate expectation / promissory estoppel'.

Respective Submissions by learned counsel:

1. Primarily, petitioners claimed that respective qualification(s) achieved entitle them for grant of exemption from the requirements of FCPS Part-I, claiming that qualification of MCPS be treated as equivalent to M.Phil., being recognized by PM&DC, and after lapse of five years petitioners be declared eligible for grant of the exemption claimed.

Learned counsel refer to documents showing acknowledgement on the part of PM&DC, affirming date(s) of achievement of qualification(s) of MCPS by each of the petitioners, including certificate(s) of experience issued to each of the petitioners. Adds that requisite fee was deposited with CPSP, hence, enforceable rights accrued in favour of the petitioners, which rights are enforceable in law under the doctrine of legitimate expectation, and same cannot otherwise be rendered ineffective upon claiming change in the policy regarding the exemption rules. Learned counsels refer to the decisions in the cases of "Pakistan through Secretary Ministry of Commerce and 2 others v. Salahuddin and 3 others." (PLD 1991 SC 546), "Hashwani Hotels Limited v. Federation of Pakistan and others" (PLD 1997 SC 315), "Mst. Fatima Faryad and others. v. Government of Punjab and others" (2020 CLC 836) and "Dewan Salman Fibre Ltd. and others. v. Federation of Pakistan through Secretary, Ministry of Finance and others" (2015 PTD 2304).

On the issue of equivalence, petitioners relied upon and referred to the 'Regulations for the Appointment / Promotion of Faculty / Teaching Staff / Examiners / Principals / Deans/Vise Chancellors in Undergraduate and Postgraduate Medical and Dental Institutions / medical Universities of Pakistan 2018 (Section - II thereof) (the 'Regulations 2018'). And plead continuity of policy qua the exemption allowable under the erstwhile exemption rules / policy, with respect to the requirements from FCPS Part-1.

1. Report and para-wise comments on behalf of respondents No.2, 3, 6 and 7 are available on record, and comments submitted by CPSP, and PM&DC are relevant for the purposes of present controversy.

2. In nutshell, it is the case of CPSP - [which authority, besides performing other functions, is exclusively entrusted with the powers to prescribe and regulate qualification(s) and requirements for the purposes of grant of Membership of College of Physicians and Surgeons (MCPS) and Fellowship of College of Physicians and Surgeons (FCPS)] - advocated by learned counsel that no right had arisen, nor could any right be claimed in the absence of any specific representation(s) made, promise(s) undertaken or assurance(s) provided to the petitioners, individually. Adds that exemption rules vary from time to time and no permanence, in respect thereof, could be claimed. Adds that petitioners are eligible to seek qualification of FCPS Part-I upon fulfilling revised requirements. It is reiterated that no direct or specific representation was addressed that terms of exemption rules would not alter / change, which variation was a routine matter, hence, no prejudice could be alleged upon change in criterion / policy, enforced through Notification of 26.02.2020. Adds that change in the policy was guided by overriding public interest and intended to forestall depreciating academic standards, to make specialist studies competitive and achieve academic excellence. Learned counsel for CPSP submits that no violation of doctrine of legitimate expectation / promissory estoppel was committed, which doctrine(s) are not attracted to the cases of the petitioners.

3. The nub of the case, on behalf of PM&DC, is that qualification(s) and equivalence claimed by the petitioners in terms of Regulations 2018 are not relevant for the purposes of claiming exemption from the requirements of FCPS Part-I. It is categorically asserted in the report / para-wise comments, submitted on behalf of PM&DC, that no equivalence certificate was ever issued / granted to the petitioners for the purposes of exemption from the requirements of FCPS Part-I.

Determination:

1. At the outset, authority / domain of the CPSP to frame, introduce and amend exemption rules is not disputed under the purview of Pakistan College of Physicians and Surgeons Ordinance 1962. Policy / exemption rules were not impugned, nor any jurisdictional error pointed in respect thereof. No document is available on record to demonstrate specific representation made or assurance extended to the petitioners by CPSP or to establish that exemption was ever granted and withdrawn thereafter. Nothing is available on record to demonstrate that petitioners had, forthwith upon acquiring the qualification of MCPS, ever sought assurance or conveyed their willingness to seek exemption from the requirements of FCPS Part-I. Petitioners approached CPSP few months before change was affected in the exemption rules. Mere filing of application would not per se entitle petitioners to claim exemption from the requirements of FCPS Part-I. It is inferred from the record that petitioners approached CPSP, which directed them to produce documents, including equivalence certificate(s) issued by PM&DC.

When asked, learned counsel for the petitioners referred to certificate(s) of Recognition of Experience allegedly issued by PM&DC, and addressed to concerned institutions / hospital(s), where petitioners were serving / employed. It is notable that such certificates were issued after change in the exemption rules - Notification was dated 26th February 2020.

1. Certificates of recognition of experience are examined. Petitioners have misconstrued contents of those certificates, which cannot be construed as equivalence certificate(s) - otherwise being deficient in material details and contained no reference to the factum of the equivalence claimed. Certificates procured cater for the requirement of certain appointment(s). Petitioners' counsel emphasized that qualification(s) of MCPS be treated equivalent to M.Phil., based on Regulations 2018, which assertion made ignores the scope and context of the Regulations 2018. I am afraid that argument must fail, being misconceived. It is not for this court to ascertain and determine the equivalence of qualifications claimed upon construing the Regulations 2018, when PM&DC itself had categorically denied status of said certificates as equivalence certificates. It is expedient to reproduce relevant paragraph of the report / para-wise comments, which reads as, "6. That the contents of paragraph No.6 are incorrect hence vehemently denied. Petitioner is trying to mislead this honourable Court. PM&DC never issued equivalence to the petitioner regarding his qualification i.e. MCPS (Forensic Medicine and Toxicology) with M.Phill (Forensic Medicine and Toxicology). The referred letter in this paragraph in this para only petitioner's experience certificate not equivalence certificate."

[Emphasis supplied]

1. There is another aspect of the matter. Certificates were issued after revision in the exemption rules - details are provided hereinbelow.

| | | | | --- | --- | --- | | Sr. No. | Petition | Recognition of experience (date of certificate and length of experience) | | 1. | W.P. No. 82061 / 2022 | 10.06.2020 (showing experience of 05 years and 04 days) | | 2. | W.P. No. 82066 / 2022 | 08.09.2020 (showing experience of 04 Years 4 Months 28 days) | | 3. | W.P. No. 82054 / 2022 | 15.07.2020 (showing experience of 05 Years 01 Month and 13 days) |

1. Notification was issued on 26th February 2020. In these circumstances, no vested right could be claimed to have been accrued in favour of the petitioners. Even the requirement of experience of five years was not achieved by the date of the notification of change in the exemption rules.

2. Petitioners claim immunity from application of revised exemption rules based on doctrine of legitimate expectation, both procedural and substantive legitimate expectation. Applicability of doctrine of legitimate expectation is subject to the fulfilment of certain conditions, exceptions and relevant qualifications. Requisite conditions / requirements for determining the applicability of doctrine of legitimate expectation, under judicial review jurisdiction, are summed up as; making of specific representation, likely recipient of the representation made, either an individual or group of persons, detriment caused in wake of reliance on the representation, circumstances / factors for change / withdrawal of representation, if so made and acted upon, overriding public interest in case promise is reneged, case of apparent unfairness, unreasonableness and misuse of power. In the case of R v. North and East Devon Health Authority, ex parte Coughlan ([2001 QB 213; [2000] 2 WLR 622) three probable scenarios were discussed in the context of plea of legitimacy of expectation, relevant paragraph is reproduced hereunder, (para 57), There are at least three possible outcomes. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representations, giving it the weight it thinks right, but no more, before deciding whether to change course. Here, the court is confined to reviewing the decision on Wednesbury grounds (Associated Provincial Picture Houses Ltd. v Wednesbury Corpn [1948] 1 KB 223). This has been held to be the effect of changes of policy in cases involving the early release of prisoners; see In re Findlay [1985] AC 318; R v Secretary of State for the Home Department, Ex p Hargreaves [1997] 1 WLR 906. (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629) in which case the court will itself judge the adequacy of the reasons advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether the frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy."

3. Lis at hand is examined in the context of the requisite conditions/situations narrated in the case of 'Coughlan' (supra)-situation depicted in first category is attracted as legitimacy of expectation is not established. Question of applicability of legitimate expectation is considered in the proximity of the facts involved.

I find specific representation, promise or assurance conspicuous by its absence. Exemption rules were changed, and such change was not directed towards the petitioners specifically, but the policy was revised in general, applicable to a class / category of persons - aspirants for achieving FCPS Part-I. No individual prejudice is caused or convincingly pleaded. It is for the petitioners to prove entitlement before seeking benefit of doctrine of legitimate expectation. Petitioners failed to establish such entitlement. Certificate(s) of recognition of experience are found deficient, even if representation or assurance, was presumed to have had been conveyed in terms of erstwhile exemption rules. Petitioners claimed that vested rights accrued were frustrated by the change in policy, relating to the exemption rules, which claim in the wake of non-fulfilment of relevant qualifications does not attract doctrine of legitimate expectation / promissory estoppel. The claim of vested rights is erroneous. It is not the case of the petitioners that exemption rules were changed after the grant of exemption from FCPS Part-I or after registering the petitioners for FCPS Part-II. CPSP considered the request of the petitioners and declined to entertain request in wake of absence of any existing rights qua revised exemption rules. Merely seeking of requisite documents by CPSP for considering eligibility for exemption claimed does not give rise to any alleged vested or enforceable right. None of the petitioners had any existing right to seek enforcement of erstwhile exemption rules, in absence of specific representation / assurance extended.

1. Learned counsel insisted that change in the policy was petitioners specific and same had prejudiced their careers. It is appropriate to discuss the rational pleaded for change in policy, though neither any specific representation was found, nor presence of requisite conditions are present, attracting doctrine of legitimate expectation. Representatives of CPSP were present and pleaded that change in the exemption rules was made based on and guided by public interest considerations, i.e., to elevate and improve the standards of specialized studies by introducing undertaking of examination. Whether requisite conditions for meeting public interest were sufficiently met before changing exemption rules? Rationality and legality qua claimed public interest need to be examined in the context of denial on the part of PM&DC. When confronted, learned counsel for the petitioners failed to establish relevance and applicability of Regulations 2018 for the purposes of present controversy, which regulations cater for appointment / promotion in Medical and Dental Institutions - PM&DC otherwise disowned granting of equivalence certificate.

2. The scope of judicial review jurisdiction can certainly be extended to adjudge factum of allegations of unreasonableness - comparatively in the context of principles of Wednesbury reasonableness test, articulated in the case of Associated Picture Houses Ltd. v Wednesbury Corp. [1948] 1 K.B.223] - or abuse of authority and unfairness in the purported exercise of authority by the public body, affecting alleged private rights, but not otherwise. And unwarranted intrusion in the policy domain, in exercise of judicial review jurisdiction, would be construed as fetter on the exercise of discretion, which encroachment is deprecated. Elements of unreasonableness, abuse of authority, act of discrimination and instances of arbitrary change in the exemption rules are conspicuously missing - change in exemption rules was not directed towards the petitioners but a consequence of change in the policy and thinking, influenced by public interest - betterment of academic excellence and raise in standard of specialist studies. If argument of the petitioners is accepted it would imply that every medical graduate, having acquired qualification of MCPS, even a day before the issuance of Notification regarding revision of exemption rules, would continue to claim exemption from FCPS Part-I exams, under the doctrine of legitimate expectation, for next five years. This is absurd. This position, if acknowledged, would place unnecessary and unreasonable restraint / fetter on the power of the CPSP to modify / change the policies, claimed to be guided by overriding public interest. No such constraints / restrictions could be imposed to circumvent the discretion extended to CPSP through statutory sanction. In the cases at hand absence of specific representation / assurance is lacking, hence, petitioners are required to fulfil requirement of detrimental reliance - instance of purported detriment caused due to reliance upon alleged representation. To elaborate the necessity of detrimental reliance, in the context of the present controversy, reference is made to the views expressed by Prof. Paul Craig in the Textbook, Administrative Law (Sweet & Maxwell) Seventh Edition 2012 at page 688, and cited in the case of R. (Bibi) v. Newham London Borough Council [2002] 1 WLR 237] Para 30 thereof, reproduced hereunder as, But he gives the following instance of a case where reliance is not essential.

"Where an agency seeks to depart from an established policy in relation to a particular person detrimental reliance should not be required. Consistency of treatment and equality are at stake in such cases, and these values should be protected irrespective of whether there has been any reliance as such."

1. I do not find the necessity to reconcile contrast in the pleas respectively raised by CPSP and PM&DC. PM&DC took the position that no equivalence certificate was issued to the petitioners, and reliance on the certificate of recognition of experience was misplaced. CPSP dismissed request in wake of change in the exemption rules - CPSP applied criterion prescribed in terms of revised rules and did not consider the eligibility claimed as relevant factor, based on recognition of experience certificate(s) otherwise issued, after revision in the exemption rules. On shaper focus, pleas raised are not found mutually destructive. Petitioners made twofold submissions. Firstly, they claimed eligibility based on certificate(s) of recognition of experience, and secondly, sought protection against change in the exemption rules on the premise of doctrine of legitimate expectation. Petitioners failed on both counts. Claim of eligibility was knocked down by PM&DC, which disowned issuance of equivalence certificate(s) and claim of legitime expectation fails on merits, in wake of the circumstances / facts narrated and discussed. Hence, no vested right could be claimed to displace the effect of revised exemption rules. In view of the facts of the instant case, neither the doctrine of procedural legitimate expectation nor substantive legitimate expectation is attracted. No purpose would be achieved by referring the matter to PM&DC or CPSP, in absence of fulfilment of relevant qualifications and changed circumstances - whereby the exemption rules were revised / changed. Petitioners are still capable of acquiring fellowship qualification(s) upon fulfilling requirements / qualifications for FCPS Part-1, as prescribed in the impugned Notification and notifications issued subsequently. Allowing exemption / walk-over to the petitioners from the requirements of FCPS Part-1 examination would otherwise tantamount to discriminatory dispensation, putting other Medical graduates, who have or likely to appear in FCPS Part-1 examination, in disadvantageous / unequal position-upon extending unwarranted preference to the petitioners in the absence of any enforceable right. Petitioners are required to prove legitimacy of expectation, purportedly resulting in frustration of the doctrine of legitimate expectation, but same are unsuccessful. The case-laws referred by the counsel for petitioners is examined and found inapplicable to the facts of the case, when relevant qualification(s), as claimed by the petitioners, are lacking and additionally the legitimacy of expectation is conspicuously wanting.

2. While looking for the case law on the subject, I lay hands on judgment reported as "Regina (Patel) v General Medical Council" ([2013] 1 WLR 2801); [2013] EWCA Civ 327), wherein claim of legitimate expectation was allowed. It is apt to discuss the circumstances in which the claim was allowed, and how instant petitions are distinguishable on facts. Claimant sought enforcement of assurance, extended by General Medical Council (GMC), body responsible for registering and regulating the doctors in United Kingdom, with respect to provisional registration of the claimant, based on the qualifications achieved upon seeking assurance from the Council. Facts are that claimant approached GMC and asked specifically, whether if the claimant completes the pre-clinical course by distance learning from foreign university, would he be provisionally registered. GMC responded in writing - through email - and assured the claimant that the Council accepts the primary medical degree from the University in question for the purpose of provisional registration. This assurance was specifically addressed to the claimant, which assurance was materially relied upon. And in these circumstances, claim based on doctrine of legitimate expectation was allowed. Comparison of the facts of said case with the facts of the cases at hand establish that no specific, clear and unambiguous assurance / representation was made by CPSP to the petitioners, nor any such assurance was pleaded. Hence, legitimacy of expectation is not established, and consequently the doctrine is not available. No support could be drawn from the ratio of decision in the case of 'Regina (Patel) v. General Medical Council' (supra).

3. In view of the reasoning narrated hereinabove, I am not persuaded to invoke judicial review jurisdiction and procced to review the legality of decision of the CPSP. All these petitions fail on merits and same are, hereby, dismissed. No order as to the costs.

MH/U-2/L Petitions dismissed.

2024 M L D 1111

[Lahore]

Before Shahid Bilal Hassan, J

M/s Gulistan Group of Companies through Director---Petitioner

Versus

Waseem Javed Khand---Respondent

Civil Revision No. 25850 of 2022, heard on 7th February, 2023.

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

----O. VII, Rr. 1 & 2---Presentation of plaint---Details of the claim to be given---Particulars and details are necessary to be pleaded under the provisions of O.VII, R.1 & 2, Code of Civil Procedure, 1908, however, relevant para of the plaint revealed that the plaintiff /respondent had not given any detail of his claim and only claimed an accumulated amount regarding outstanding eligible/agreed misc. allowance/ expenses, gratuity, 10 % compensation---Whereas, the same must have been bifurcated and categorized as to what amount under which head was being claimed by the respondent; meaning thereby the pleadings of the plaintiff / respondent were ambiguous---Revision filed by the defendant/petitioner was allowed, in circumstance .

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

----Arts. 72, 117 & 120---Producing of document(s) in statement of counsel---Legality---Plaintiff submitted disputed documents through his counsel, which otherwise must be brought on record through their author or in statements of witnesses having nexus with such documents---Revision was allowed.

Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715; Manzoor Hussain v. Misri Khan PLD 2020 SC 749; Hameeda Begum v. Irshad Begum 2007 SCMR 996 and Muhammad Hussain and another v. Province of Punjab through District Officer Revenue, Multan and others 2021 YLR 2310 ref.

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

----O. VII, Rr. 14 & O. XIII, R. 1---Documents furnished in evidence by a party beyond the documents, presented and relied upon while submitting forms as per mandate of O.VII, R.14 & O.XIII, R.1, Civil Procedure Code, 1908---Such documents must not be considered and relied upon by the Courts below---Revision was allowed.

Syed M. Bin Yamin for Petitioner.

Respondent: In Person.

Date of hearing: 7th February, 2023.

Judgment

SHAHID BILAL HASSAN, J.---This single judgment will decide the captioned revision petition as well as connected C.R.No.13114 of 2022, as both are interconnected as well as one and the same judgments and decrees have been called into question.

1. Succinctly, the respondent/plaintiff instituted a suit for recovery of Rs.1,076,008/- alongwith interest and costs of damages against the present petitioner, which was duly contested by the petitioner. Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties in pro and contra was recorded. On conclusion of trial, the learned trial Court vide impugned judgment and decree dated 03.09.2021 partially decreed the suit excluding the claim of gratuity amounting to Rs.160,000/- and compensation amount Rs.97,819/-. The petitioner being aggrieved preferred an appeal, which was partially accepted and amount of cheque worth Rs.294,720/- was also excluded. The petitioner being aggrieved has filed the instant revision petition whereas the respondent feeling dissatisfied filed the connected C.R.No.13114 of 2022.

2. Heard.

3. After going through the plaint, presented by the respondent, it seems necessary to refer the relevant provisions of law governing the presentation of plaint and to state that what kind of particulars and details are necessary to be pleaded. In this regard, Order VII, Rules 1 and 2, Code of Civil Procedure, 1908 are relevant, which are reproduced infra:-

'1. Particulars to be contained in plaint. The plaint shall contain the following particulars-

(a) the name of the Court in which the suit is brought;

(b) the name, description and place of residence of the plaintiff;

(c) the name, description and place of residence of the defendant, so far as they can be ascertained;

(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;

(e) the facts constituting the cause of action and when it arose;

(f) the facts showing that the Court has jurisdiction;

(g) the relief which the plaintiff claims;

(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and

(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of Court-fees, so far as the case admits.

1. In money suits. Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed:

But where the plaintiff sues for mesne profits, or for a amount which will be found due to him on taking unsettled accounts between him and the defendant, or for movable in the possession of the defendant, or for debts of which the value he cannot, after the exercise of reasonable diligence, estimate, the plaint shall state approximately the amount or value sued for.'

However, the respondent/plaintiff has not given any detail of his claim and only accumulatively claimed Rs.10,76,008/-. The relevant paragraph is 10 of the plaint, which is reproduced as under:-

'10. That the amount claimed by the plaintiff regarding outstanding eligible/agreed misc. allowance/expenses, gratuity, amounting to Rs.10,76,008/- including compensation of 10% are correct and genuine.'

The same must have been bifurcated and categorized as to what amount under which head is being claimed by the respondent; meaning thereby the pleadings of the respondent are ambiguous. Moreover, the respondent submitted disputed documents through his counsel, which otherwise must have been brought on record through their author or in statements of witnesses having nexus with such documents. In judgment reported as Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 SC715), the apex Court of the country by reiterating and re-affirming its view rendered in judgments reported as Manzoor Hussain v. Misri Khan (PLD 2020 SC 749) and Hameeda Begum v. Irshad Begum (2007 SCMR 996), has invariably held that:-

'This Court has time and again emphasized that the disputed documents cannot be tendered in evidence in statement of the counsel for a party, because such procedure deprives the opposing party to test the authenticity of those documents by exercising his right of cross-examination.'

2024 M L D 1147

[Lahore]

Before Farooq Haider, J

Abdul Rehman---Petitioner

Versus

The State and others---Respondents

Crl. Misc. No. 62271-B of 2023, decided on 13th December, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497---Juvenile Justice System Act ( XXII of 2018 ), Ss. 2 (g) & 6(4)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Juvenility, ground of---Heinous offence---Birth certificate, annexed with the petition , revealed that age of the petitioner / accused was more than sixteen years on the day of occurrence ---Therefore, when in light of sub-S.(4) of S.6 of the Juvenile Justice System Act ,2018, there are reasonable grounds available on the record to connect the petitioner with the commission of heinous offence ,as defined under sub-S.(g) of S.2 of the Juvenile Justice System Act ,2018 , he did not deserves concession of bail even on the ground of juvenility---No case for concession of bail to the petitioner was made---Bail was declined to the petitioner/accused , in circumstances .

Rana Muhammad Ishaq for the petitioner.

Shabbir Ahmad, Deputy Prosecutor General for the State along with Riaz S.I. and record of the case.

Malik Shahid Iqbal Baghoor for Respondent No.2/Complainant of the case.

Order

Farooq Haider, J.---Through instant petition, Abdul Rehman (petitioner/accused) seeks post-arrest bail in case arising out of FIR No.126/2023 dated: 01.05.2023 registered under Sections: 302, 148, 149 P.P.C at Police Station: Mitha Tiwana, District: Khushab.

1. After hearing learned counsel for the parties, learned Deputy Prosecutor General and going through the available record with their able assistance, it has been noticed that briefly, as per crime report (FIR) got recorded by Muhammad Sadiq (complainant), on 01.05.2023 at about 08:40 p.m. five accused persons (whose names were not mentioned in the FIR) while two of them armed with pistols whereas three armed with hunters, stopped Ahmad Nawaz (maternal nephew of the complainant) when he was about to cross Railway Phatak, three persons who were armed with hunters gave blows with hunters to Ahmad Nawaz (mentioned above) whereas two accused persons who were armed with pistols caused firearm injuries to Ahmad Nawaz, who became severely injured and succumbed to the injuries on the way to the hospital. Though petitioner was not nominated in the first information report, however, on Court's query learned Deputy Prosecutor General under instructions of the police official (present before the Court) and after himself going through the available record apprises that petitioner was arrested under Section: 54 Cr.P.C. on 10.05.2023, sent to jail on the same day and was duly identified during identification test parade on 18.05.2023 by Muhammad Sadiq (complainant) and eyewitnesses, namely, Muhammad Nawaz and Muhammad Ashraf that he was the person who was armed with hunter at the time of occurrence; further apprises that hunter was recovered from him and after thorough investigation, he has been found involved in the occurrence. Therefore, reasonable grounds are available on the record to connect the petitioner with the commission of alleged offence and punishment of the same does fall in the ambit of prohibition contained in Section: 497 Cr.P.C.

4 So far as ground of juvenility of the petitioner is concerned, suffice it to say that as per birth certificate of the petitioner annexed with this petition (available at page No.16 of the instant petition), date of birth of the petitioner has been mentioned as 08.01.2007 meaning thereby that he was more than sixteen years of age on the day of occurrence i.e. 01.05.2023, therefore, when there are reasonable grounds available on the record to connect the petitioner with the commission of heinous offence then he does not deserve concession of bail even on the ground of juvenility and in this regard, subsection: (4) of Section: 6 of the Juvenile Justice System Act, 2018 can be advantageously referred which is hereby reproduced for ready reference:-

2024 M L D 1156

[Lahore]

Before Shahid Bilal Hassan, J

Rehana Shafqat---Petitioner

Versus

Afira Butt and others---Respondents

Civil Revision No. 49064 of 2022, heard on 24th October, 2023..

(a) Oaths Act (X of 1873)---

----Ss. 8, 9, 10 & 11---Special oath, administration of---Binding upon the party---Arrangement for disposal of suit/case as agreed by the parties is a sort of a compromise, which is lawful and permissible; therefore, the same cannot be assailed through appeal.

Rashid Mahmood v. Mst. Rashida Begum and 2 others 2010 YLR 218 rel.

(b) Succession Act (XXXIX of 1925)---

----S.373---Oaths Act (X of 1873), Ss. 8, 9, 10 & 11---West Pakistan Civil Services Pension Rules, 1963, Rr. 4.7 & 4.10---Pensionary benefits---Succession certificate---Tarka---Legal heirs, entitlement of---Special oath, administration of---After death of civil servant, petitioner applied for issuance of succession certificate about pensionary benefits of her deceased husband, who was an employee in the Pakistan Telecommunication Company Limited---Petitioner contended that deceased had already divorced his second wife/respondent No. 1, therefore she was not entitled to any pensionary benefits---Such claim was resisted by the respondents---Trial Court held the two wives and children entitled for pensionary benefits---Petitioner being aggrieved preferred an appeal---Appellate Court modified the order and entitled both wives only for pensioner benefits---Matter was decided on Special Oath---Held that nothing was on record to divulge that the petitioner was prompted by the respondents or by the Trial Court to arrange the disposal of lis on the basis of special oath, rather it was her sweet will to get decided the matter in terms of Special Oath--- Therefore, said offer being made voluntarily and accepted by the respondent No. 1 was binding upon the petitioner---Offer so made by the petitioner to the respondent No. 1 was binding upon her and she could not resile from the same, and she had to face the consequence of the same---Revision petition in hand came to naught and the same stood dismissed, in circumstances.

Tasaduq Hussain v. Additional District Judge, District Vehari and 2 others 2010 YLR 3283; Maulana Muhammad Idrees v. Fazal Said Khattak and others 2009 CLC 241 and Inayat Hussain alias Inayatullah v. Chaudhry Sultan Ahmad 2010 CLC 596 rel.

(c) Succession Act (XXXIX of 1925)---

----S.373---West Pakistan Civil Services Pension Rules, 1963, Rr. 4.7 & 4. 10---Pensionary benefits---Succession certificate---Tarka---Legal heirs, entitlement of---After death of civil servant, petitioner applied for issuance of succession certificate about pensionary benefits of her deceased husband, who was an employee in the Pakistan Telecommunication Company Limited---Petitioner contended that deceased had already divorced his second wife/respondent No. 1, therefore she was not entitled to any pensionary benefits---Such claim was resisted by the respondents---Trial Court held the two wives and children entitled for pensionary benefits---Petitioner being aggrieved preferred an appeal---Appellate Court modified the order and held both wives only entitled for pensionary benefits---Validity---Petitioner took a stance that deceased divorced the respondent No.1 through Talaq-e-Bian on 13.12.2002 but as per observations of the Appellate Court, there were two divorce deeds of different dates on record of the concerned Union Council: one was issued on 13.12.2002 and other one issued on 03.09.2004 by the deceased in presence of two witnesses but the petitioner could not produce both the said witnesses in support of her contention especially after a categorical denial and special oath by the respondent No. I in pursuance to the offer of the present petitioner---Other aspect of keeping the purported proceedings of issuance of certificate of Talaq for a considerable period of seven years also spoke volumes of the authenticity and veracity of the same, as the first notice of Talaq was issued on 28.05.2011 and divorce effectiveness certificate was issued on 05.10.2011---Moreover, it was also not clear that on which divorce deed the same was issued, because the Appellate Court found two divorce deeds of different dates in the record of Union Council---In such view of the matter, the Appellate Court had rightly adjudged the matter in hand and had not committed any illegality or irregularity while upholding the order passed by the Trial Court, warranting interference by High Court in exercise of revisional jurisdiction---Revision petition in hand came to naught and the same stood dismissed, in circumstances.

Rana Muhammad Nawaz for Petitioner.

Chaudhry Tanveer Zahoor Gujjar for Respondents.

Date of hearing: 24th October, 2023.

Judgment

SHAHID BILAL HASSAN, J.---Tersely, the instant revision petition arises out of the proceedings brought by the present petitioner through an application for issuance of succession certificate about the pensionary benefits, etc. of her deceased husband namely Shafqat Rasool, who was an employee in the Pakistan Telecommunication Company Limited. In the said application, the Pakistan Telecommunication Company Limited, Public at large and the respondents were impleaded as respondents and it was averred that the deceased Shafqat Rasool had already divorced his second wife i.e. respondent No.1 on 13th December, 2002, therefore, she was not entitled to any pensionary benefits. This claim of the petitioner was resisted by the respondents. Evidence of the parties was recorded. The learned trial Court vide impugned order dated 11.02.2019 held entitled two wives and children for pensionary benefits. The petitioner being aggrieved preferred an appeal. The learned appellate Court modified the order and entitled both wives only for pensionary benefits vide judgment dated 15.05.2019. The petitioner challenged the said order and judgment by filing C.R.No.37749 of 2019, wherein this Court summoned the Secretary Union Council concerned alongwith record and after perusal of record, set aside the judgment dated 15.05.2019 and remanded the case to the learned appellate Court with direction to decide the appeal afresh after taking into consideration the facts. However, the learned appellate Court vide impugned judgment dated 30.06.2022 dismissed the appeal and upheld the decree of the learned trial Court; hence, the instant revision petition.

1. Heard.

2. The legal proposition involved in the present case is that whether a decision rendered on the basis of special oath is appealable or not? In this regard, it can safely be observed that arrangement for disposal of suit/case as agreed by the parties was a sort of compromise, which was lawful and permissible; therefore, the same cannot be assailed through appeal, as held in Rashid Mahmood v. Mst. Rashida Begum and 2 others (2010 Y L R 218-Lahore).

2024 M L D 1166

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar and Muhammad Waheed Khan, JJ

Muhammad Adnan---Appellant

Versus

The State---Respondent

Criminal Appeal No. 206 of 2023, heard on 26th September, 2023.

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

----Ss.9(b) & 9(c)---Possession of narcotic---Appreciation of evidence---Safe custody and transmission of the samples not proved---Conviction, modification of---Prosecution case was that 3170 grams charas was recovered from the possession of the accused---As per testimony of HC/Moharrar Police Station, he handed over the parcels containing the case property to complainant of the case, for depositing the same in Malkhana on 06.09.2022---Said complainant, while appearing before the Trial Court, did not depose a single word regarding receiving the parcel(s) containing case property from Moharrar Police Station for depositing the same in Malkhana---Said fact showed that complainant did not depose about receiving of parcels containing case property for depositing the same in the Malkhana in safe custody---Prosecution failed to adduce evidence qua the safe custody and safe transmission of the samples containing the 'case property's---Complainant had not deposed in the line of the assertion of HC/Moharrar of Police Station, wherein he claimed that he handed over the parcels containing the case property to the said complainant, rather he did not utter a single word about handing over the parcels containing the 'case property' to him---Meaning thereby that an important link was missing regarding the safe custody of the 'case property'---Hence, in all eventualities the parcels containing the 'case property' could not be used against the accused---So, accused could not be held guilty of the quantity i.e. 3011 grams of charas and as such conviction and sentence awarded to him by the Trial Court under S.9 (c) of the Act could not be allowed to stand, rather he would be convicted and sentenced to the extent of samples consisting of 54/54 grams and 51 grams (total 159 grams), which were received in the Forensic Science Agency and the same were tested as positive through report---Therefore, conviction recorded by the Trial Court was converted from S.9 (c) to S.9 (b) of the Act and he was sentenced to one year and three months rigorous imprisonment---Appeal was dismissed with modification in sentence.

Ameer Zeb v. The State PLD 2012 SC 380 ref.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Ikramullah and others v. The State 2015 SCMR 1002; Amjad Ali v. The State 2012 SCMR 577; Abdul Ghani and others v. The State and others 2019 SCMR 608; Abid Ali v. The State 2022 PCr.LJ 1088; Abdul Ghafoor v. The State and others 2021 PCr.LJ 1624 and Ghulam Murtaza and another v. The State PLD 2009 362 rel.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Safe custody---Principle---Case under the Control of Narcotic Substances Act, 1997, contained two components/limbs i.e. firstly, the prosecution is bound to establish the safe custody and safe transmission from the place of recovery of seized drug by the police, including separation of representative parcels of the seized drug and its despatch to the testing laboratory---Secondly, the chain of custody of the parcel(s) containing the 'case property' is also pivotal, and the prosecution is also supposed to prove its safe custody as far as the same remained with the police and then despatched to the Trial Court as a 'case property' intact---Any break in the chain of custody or lapse in the control of possession of the samples containing case property causes doubt about its safe custody and safe transmission to the Court of law.

Ameer Zeb v. The State PLD 2012 SC 380 rel.

Ch. Umar Hayat for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Date of hearing: 26th September, 2023.

Judgment

MUHAMMAD WAHEED KHAN, J.---Through the instant appeal, the appellant has challenged conviction and sentence awarded to him by the learned Addl. Sessions Judge, Dera Gazi Khan vide judgment dated 25.02.2023 in case FIR No.709 dated 04.09.2022 registered under section 9 (c) of the Control of Narcotic Substances Act, 1997 at Police Station Gaddai, Dera Gazi Khan, whereby on conclusion of trial, he was convicted under section 9 (c) of the Control of Narcotic Substances Act, 1997 and sentenced to rigorous imprisonment for six years and six months alongwith fine of Rs.30,000/-, in default thereof, to further undergo six months simple imprisonment. Benefit of section 382-B Cr.P.C. was also extended to him.

1. Facts of the case are that on 04.09.2022, when complainant, Muhammad Tahir Saleem T/SI alongwith other officials was present at Paigah Chowk, on a tip off, they chased the appellant who was coming on a motorcycle and when a cloth bag hanging with the handle of his motorcycle was opened, three packets of charas (out of which one packet wrapped in yellow coloured tape weighing 1080 grams, second wrapped in a blue coloured tape weighing 1070 grams and the third packet wrapped in blue coloured shopper bag weighing 1020 grams), total weighing 3170 grams, were recovered and an amount of Rs.4350/- was also recovered from him. The complainant prepared three separate sealed parcels of samples and three others of the remaining case property and took the said six parcels alongwith motorcycle and cash into possession, hence, this case.

2. After registration of case, police investigated the matter and submitted report under section 173 Cr.P.C. before the learned trial Court by declaring the appellant as guilty. Learned trial Court after completing codal formalities, framed charge against the appellant, which was denied by him, so, the prosecution evidence was summoned. In order to prove the charge against the appellant, the prosecution produced as many as six witnesses. Allah Bachaya ASI, who chalked out FIR appeared as PW-1, Shehbaz Qalandar 924/HC, Moharrar of Police Station appeared as PW-2, Muhammad Sadiq SI, Investigating Officer of the case appeared as PW-3, Allah Dewaya 930/C witness of recovery appeared as PW-4, Tahir Saleem T/SI complainant of the case appeared as PW-5 and Muhammad Qasim 1148/C, who transmitted the complaint to the Police Station appeared as PW-6. The prosecution after producing certain documents including report of Punjab Forensic Science Agency (Ex-PG) closed its evidence. The appellant was examined under section 342 Cr.P.C., wherein he denied all the allegations leveled against him. He did not opt to appear under section 340(2) Cr.P.C. as his own witness, however, produced certain documents in his defence.

3. In support of the instant appeal, learned counsel for the appellant has submitted that the prosecution story is inherently flawed, failed to inspire confidence and the impugned judgment is not only based on surmises and conjectures but material evidence available on record has been mis-read; In alternate, learned counsel for the appellant submits that since the prosecution remained failed to prove the case qua the safe custody of the parcels containing the case property so the same cannot be used against the appellant and the maximum he could be saddled with the responsibility to the extent of sample parcels containing 54/54 grams and 51 grams (total 159 grams) of contraband in the light of guidelines given by the august Supreme Court of Pakistan in case titled as "Ameer Zeb v. The State" (PLD 2012 Supreme Court 380).

4. Conversely, learned Deputy Prosecutor General while faithfully supporting the impugned judgment, candidly admitted that the prosecution could not prove the safe custody of the parcels containing the case property, so, the appellant can only be held responsible of quantity of narcotics containing in sample parcels i.e. 159 grams.

5. We have heard the arguments of learned counsel for the appellant, learned Law Officer and perused the record with their assistance. On in depth analysis of record, we have straightway noticed that as per testimony of Shahbaz Qalandar 924/HC Moharrar Police Station (PW-2), he handed over the parcels containing the case property to Tahir Saleem SI (PW-5) complainant of the case, for depositing the same in Sadar Mall Khana on 06.09.2022. Regarding this fact, he (PW-2) deposed in the dock in the following manner;-

"I sent the case property to Malkhana Saddar through Tahir Saleem SI on 06.09.2022. I.O recorded my statement in this regard. The parcels remained intact as long as in my custody."

But the said Tahir Saleem SI, while appearing before the learned trial Court as PW-5 did not depose a single word regarding receiving the parcel(s) containing case property from Moharrar Police Station (PW-2) for depositing the same in Saddar Malkhana. The said portion of testimony of (PW-5) is reproduced as under;-

"On 05.09.2022, Shahbaz Qalandar Moharrir handed over to me three sample parcels for onward transmission to the office of PFSA alongwith road certificate 990/2021, which I deposited the aforesaid office on 06.09.2022 intact."

It shows that PW-5 did not depose about receiving of parcels containing case property for depositing the same in the Saddar Malkhana in safe custody.

1. A case under the Control of Narcotic Substances Act, 1997 contains two components/limbs i.e. firstly, the prosecution is bound to establish the safe custody and safe transmission from the place of recovery of seized drug by the police, including separation of representative parcel(s) of the seized drug and its despatch to the testing laboratory and secondly, the chain of custody of the parcel(s) containing the 'case property' is also pivotal, and the prosecution is also supposed to prove its safe custody as far as the same remained with the police and then despatched to the trial Court as a 'case property' intact, and any break in the chain of custody or lapse in the control of possession of the sample(s) containing case property causes doubt on its safe custody and safe transmission to the Court of law. In case of "Ameer Zeb v. The State" (PLD 2012 SC 380), the top Court has observed that the Control of Narcotic Substances Act, 1997, stipulates disproportionately long and harsh sentences and, therefore, for the purpose of safe administration of criminal justice, some minimum standards of safety are to be laid down so as to strike a balance between the prosecution and the defence and to obviate chances of miscarriage of justice on account of exaggeration by the Investigating Agency. Such minimum standards of safety are even otherwise necessary for safeguarding the Fundamental Rights of the citizens regarding life and liberty which cannot be left at the mercy of verbal assertions of police officers, which assertions are not supported by independent evidence provided by a Chemical Examiner. In cases of "The State through Regional Director ANF v. Imam Bakhsh and others" (2018 SCMR 2039), "Ikramullah and others v. The State" (2015 SCMR 1002) and "Amjad Ali v. The State" (2012 SCMR 577), the Apex Court had bound down the prosecution to substantiate the safe transmission of sample(s) of the recovered substance right from its recovery from the accused, keeping it safe with the police and then its onward transmission to the Forensic Laboratory but in case of "Abdul Ghani and others v. The State and others" (2019 SCMR 608), the top Court went ahead of this by observing that in a case where the safe custody of the recovered substance or safe transmission of sample(s) of the recovered substance was not proved by the prosecution through independent evidence, it cannot not be concluded that the prosecution had succeeded in establishing its case against the accused beyond reasonable doubt. In the above referred case, the top Court had given its observation in the following manner;-

"There is hardly any occasion for discussing the merits of the case against the appellants because the record of the case shows that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner had not been established by the prosecution in this case. Nisar Ahmad, S.I./SHO complainant (PW1) had stated before the trial Court that he had deposited the recovered substance at the Malkhana of the local Police Station but admittedly the Moharrir of the said Police Station had not been produced before the trial Court to depose about safe custody of the recovered substance."

2024 M L D 1176

[Lahore]

Before Ahmad Nadeem Arshad, J

Muhammad Sharif---Petitioner

Versus

Rana Muhammad Sharif (deceased through LRs) and 2 others---Respondents

Civil Revision No. 2827 of 2016, heard on 16th April, 2024.

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

----Arts.17, 79, 80 &129(g)---Specific Relief Act ( I of 1877) , S. 12 ---Suit for specific performance---Agreement to sell, execution of---Proof---Marginal witness, non-producing of---Effect---Withholding of evidence---Suit filed by the plaintiff was concurrently dismissed---Validity---Petitioner/plaintiff though got exhibited agreement-to-sell but failed to prove its valid execution --- It is the duty of the beneficiary of the agreement to prove its genuineness by producing its marginal witnesses---Under Arts. 17 & 79 of Qanun-e- Shahadat 1984, a plaintiff is duty bound to prove the genuineness of the document through cogent, confidence inspiring and independent evidence---Where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise---Agreement in question was attested by two marginal witnesses; though the petitioner produced only one of them but later failed to produce him for cross examination, therefore, earlier statement/evidence of said marginal witness was of no support to the petitioner and the said statement could not be read against respondent---Although it was apprised to the Trial Court that said witness had died but the petitioner failed to produce the death certificate of said witness till the final decision of the case---Petitioner also failed to produce the second marginal witness---Petitioner while recording his own statement deposed that said (second) witness had died while his counsel got exhibited /produced photo copy of his death certificate but the Courts below did not accept the said photocopy of death certificate as a piece of evidence---Simple oral assertion was not enough to prove the factum of death of both the marginal witnesses of agreement to sell ---Article 80 of Qanun-e-Shahadat, 1984, provides the procedure how to prove document when no attesting witness is found---It was obligatory upon the petitioner to prove the fact that his witnesses had died or could not be traced out---Petitioner had a way to prove the factum of death by leading secondary evidence---Best evidence was withheld without showing any justification, thus inference of Art. 129(g) of Qanun-e-Shahadat 1984, had to be drawn against him---Petitioner failed to produce attesting witnesses or to comply with the requirements of Art. 17 & 79 of Qanun-e-Shahadat, 1984---Provisions of Art. 79 of Qanun-e-Shahadat 1984 are mandatory and non- compliance thereof renders agreement as inadmissible in evidence---Petitioner had failed to prove genuineness of a valid agreement to sell in his favour, therefore, the Courts below had rightly concluded and dismissed the suit of the petitioner concurrently---Civil revision ,filed by the plaintiff, was dismissed, in circumstances.

Sheikh Muhammad Muneer v. Mst. Feezan PLD 2021 SC 538; Ghulam Sarwar (Deceased) through L.Rs. and others v. Ghulam Sakine 2019 SCMR 567; Muhammad Sarwar v. Mumtaz Bibi and others 2020 SCMR 276; Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241 and Khudadad v. Syed Ghuzanfar Ali Shah alias S.Inam Hussain and others 2022 SCMR 933 ref.

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

----S. 115 --- Concurrent findings---Revisional jurisdiction of the High Court---Scope---Findings of lower Courts on question of facts and law based upon proper appreciation of oral as well as documentary evidence are not liable to be reviewed or substituted by the High Court ---Concurrent findings of the fact cannot be disturbed unless Courts below while recording findings of the facts have either misread the evidence or have ignored any material piece of evidence or they are perverse and reflect some jurisdictional error.

Syed Hasnain Naqvi and others v. Mst. Begum Zakara Chatha through LRs and others 2015 SCMR 1081; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Muhammad Akbar v. Mst. Manna and 3 others 20014 SCMR 1700; Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001; Abdul Mateen and others v. Mustakia 2006 SCMR 50 and Malik Muhammad Kha an v. Trustees of the Port of Karachi (KPT) and others 2008 SCMR 428 ref.

Ch. Muhammad Attique for Petitioner.

Qasim Ali Kalyar for Respondents Nos. 1 and 2.

Usman Nasir Awan and Ahmer Waseem Malik for Respondent Nos. 2 and 3.

Date of hearing: 16th April, 2024.

Judgment

Ahmad Nadeem Arshad, J.---Through this Civil Revision, filed under section 115 of Code of Civil Procedure, 1908, the petitioner has called in question the validity and legality of impugned judgments and decrees of learned Courts below, whereby, his suit for specific performance of agreement to sell was dismissed, concurrently.

1. Facts in brevity are that the petitioner instituted a suit for specific performance of an agreement to sell on 13.07.2007 and sought performance of agreement to sell dated 17.07.2004, whereby, respondent No.1 agreed to sell his land measuring 08 kanals for a consideration of Rs.400,000/- and after receipt of earnest money of Rs.200,000/- executed agreement to sell. The petitioner maintained in his plaint that respondent No.1, who was owner of land measuring 16 kanals agreed to sell 08 kanals out of the said land for a consideration of Rs.400,000/- and after receipt of Rs.200,000/- executed an agreement to sell dated 17.07.2004; that it was settled that remaining consideration amount would be paid within one month and after that respondent No.1 transferred the said property to him; that thereafter respondent No.1 agreed to sell his remaining 08 kanals land situated near the Abadi Deh for a consideration of Rs.600,000/- through oral sale agreement dated 07.08.2004; that said land was transferred through oral sale mutation No.2214, incorporated in revenue record on 25.08.2004 and registered on 15.04.2005; that respondent No.1 sold the land of agreement to sell dated 17.07.2004 to respondents Nos.2 and 3 through oral sale mutation No.2227 dated 26.11.2004; that petitioner asked respondent No.1 to perform the agreement to sell dated 17.07.2004 and cancelled the mutation No.2227 dated 26.11.2004 but he refused to do so which constrained him to institute the suit. Respondent No.1 as well as respondents Nos.2 and 3 resisted the suit through filing their separate contesting written statements. Respondent No.1 in his written statement took a stance that he agreed to sell his land measuring 08 kanals for a consideration of Rs.400,000/- to the petitioner and in this regard he executed agreement to sell dated 17.07.2004; that subsequently he transferred the suit property to the petitioner through oral sale mutation No.2214 dated 15.04.2005; that the petitioner illegally incorporated the consideration amount of Rs.600,000/- instead of Rs.400,000/- in the said mutation; that when this fact came into his knowledge, he instituted a suit for permanent injunction which was subsequently withdrawn; that he fulfilled his part of agreement to sell dated 17.07.2004 by transferring the suit property in the name of the petitioner through oral sale mutation No.2214 dated 15.04.2005 and prayed for dismissal of the suit. Respondents Nos.2 and 3 also resisted the suit on the ground that they are bonafide purchasers with consideration without any notice of prior agreement to sell with the petitioner and prayed for dismissal of the suit. The learned trial Court, in the light of divergent pleadings of the parties, framed necessary issues and invited them to produce their respective evidence. After recording evidence of the parties pro and contra, oral as well as documentary, dismissed the suit vide judgment and decree dated 30.01.2013. Feeling aggrieved, the petitioner preferred an appeal which also met the same fate and dismissed by the learned appellate Court vide judgment and decree dated 25.11.2015. Being dis-satisfied, the petitioner approached this Court through the instant Civil Revision.

2. I have heard learned counsel for the parties at full length and perused the record with their able assistance.

3. The petitioner sought performance of an agreement to sell dated 17.07.2004 (Exh.P-1) whereby respondent No.1 agreed to sell his land measuring 08 kanals situated in Khewat No.56, Khatoni Nos.152 to 154 for a consideration of Rs.400,000/-. It is also evident from the said agreement to sell that Rs.200,000/- was paid as an earnest money and it was settled that remaining amount of Rs.200,000/- would be paid within a period of one month. It was also settled that after payment of remaining consideration amount of Rs.200,000/- the petitioner would be entitled to get registered sale deed and if respondent No.1 failed to transfer the suit property in the name of the petitioner then he would pay damages equal to the earnest money and the petitioner would also be entitled to get registered the suit property through instituting a suit for specific performance. It was also agreed that if the petitioner failed to pay the remaining consideration amount within settled period then the earnest money will be confiscated and the bargain would be cancelled. This agreement to sell was scribed by Ikhlaq Ahmad scriber and witnessed by Asim Mahmood Dar son of Inayat Ullah Dar and Sardar Ali son of Anokhay Khan. From perusal of said agreement to sell (Exh.P-1) it appears that 160/863 share measuring 08 kanals from a joint Khewat No.56 consisted upon 43 kanals 03 marlas was agreed to be sold by respondent No.1 to the petitioner.

4. The petitioner claimed that said agreement to sell (Exh.P1) is yet to be performed, whereas, the stance of respondent No.1 is that he performed the said agreement to sell by transferring land measuring 08 kanals through mutation No.2214 dated 15.04.2005. The petitioner produced copy of oral sale mutation No.2214 as Exh.P-6. (Whereas, the respondents also brought on record said document as Exh.D-3). Perusal of the said oral sale mutation No.2214 it appears that factum of oral sale was reported to the Patwari on 25.06.2004 who got incorporated said factum in his register Roznamcha Waqiati at Serial No.26. Said Rapt Roznamcha Waqiati No.26 dated 25.08.2004 was brought on record as Exh.P-11. Perusal of said Rapt Roznamcha Waqiati and oral sale mutation it appears that share of 160/863 measuring 08 kanals land from a joint Khewat No.56 consisted upon 43 kanals 03 marlas was transferred from respondent No.1 to the petitioner. Statements of the parties were recorded on 03.09.2004 and case was adjourned for verification of government dues. The government dues were paid on 07.09.2004 and mutation was registered on 15.04.2005. When agreement to sell (Exh.P-1) and oral sale mutation are put in juxta position then it appears that respondent No.1 performed the agreement to sell, however, there is a difference between the sale consideration. In the agreement to sell, the sale consideration was fixed as Rs.400,000/-, whereas in the oral sale mutation the consideration amount was incorporated as Rs.600,000/-. It is also matter of record that respondent No.1 after sanction of the said oral sale mutation instituted a suit for permanent injunction on the very next day i.e. on 16.04.2005, wherein, he pleaded that he agreed to sell his land measuring 08 kanals for a consideration of Rs.400,000/- but the petitioner entered an excessive amount of Rs.600,000/- in the oral sale mutation. Copy of the said plaint is available on the record as Exh.P-14. Although said suit was dismissed as withdrawn on 24.05.2006 but the institution of the suit from respondent No.1 on the very next day supported his version that he agreed to sell his land measuring 08 kanals for a consideration of Rs.400,000/- but the petitioner got entered an excessive consideration amount in the oral sale mutation.

5. The petitioner failed to prove the factum of oral sale agreement dated 07.08.2004. Neither the witnesses in whose presence said bargain was struck down were produced nor payment of consideration amount of Rs.600,000/- was proved. Similarly the petitioner also failed to produce the witnesses of oral sale mutation who identified the parties at the time of recording of statements by the revenue officer. Another fact also nullifies the claim of the petitioner that the petitioner instituted the suit for specific performance of agreement to sell on 13.07.2007 for performance of the agreement to sell dated 17.07.2004. There is no explanation why he remained silent for such a long period of three years. Agreement to sell was executed on 17.07.2004, whereby, it was settled that remaining consideration amount would be paid within one month. The oral sale mutation No.2214 was incorporated in the Rapt Roznamcha Waqiati No.26 on 25.08.2004 after one month and seven days and the statements of the parties were recorded on 03.09.2004 and government dues were paid on 07.09.2004. All these facts also supported the version of respondent No.1.

6. Respondent No.1, who was owner of 18 kanals 19 marlas land, transferred his remaining land measuring 10 kanals 19 marlas from the said joint khata through oral sale mutation No.2227 dated 26.11.2004 (Exh.P-4) to respondents Nos.2 and 3. Said sale was incorporated in the Rapt Roznamcha Waqiati at Serial No.67 on 04.10.2004 which is available on record as Exh.P-10 and the said oral sale mutation was sanctioned on 26.11.2004. Perusal of the Rapt Roznamcha Waqiati and oral sale mutation it appears that respondent No.1 sold 219/863 share land measuring 10 kanals 19 marlas from the joint Khewat No.56 consisted upon 43 kanals 03 marlas for a consideration of Rs.745,695/- to respondents Nos.2 and 3. Said mutation was sanctioned on 26.11.2004 and possession was also handed over to respondents Nos.2 and 3. The petitioner, who was resident of the same village and also share holder on the basis of oral sale mutation No.2214 remained silent till the institution of his suit. It is unbelievable that petitioner remained un-aware of the said oral sale mutation for a long period of three years.

7. Even otherwise, the petitioner failed to prove a valid execution of agreement to sell dated 17.07.2004 (Exh.P-1). It is the duty of the beneficiary to prove its genuineness by producing its marginal witnesses. Under Article 17 read with Article 79 of Qanun-e-Shahadat Order, 1984, a plaintiff was duty bound to prove the genuineness of the said document through cogent, confidence inspiring and independent evidence. It is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise. Said agreement was witnessed/attested by two marginal witnesses namely Asim Mahmood Dar son of Inayat Ullah Dar and Sardar Ali son of Anokhay Khan. The petitioner produced Sardar Ali, one of the attesting witnesses as PW-2. The petitioner when produced the said witnesses, at that time respondent No.1 was proceeded against ex-parte and said PW-2 was only crossed examined by respondents Nos.2 and 3. Thereafter, ex-parte proceedings initiated against respondent No.1 were set-aside but the petitioner failed to produce Sardar Ali (PW-2) for cross examination, therefore, earlier statement/evidence of marginal witness is of no support to the petitioner and the said statement cannot be read against respondent No.1. Although his counsel apprised to the Court that said witness had been died and maintained that the death certificate of the said witness would be produced but the petitioner failed to produce the death certificate of said Sardar Ali till the final decision of the case. No sufficient reason has been produced for non-production of death certificate of said witness. In this way the petitioner withheld best piece of evidence.

8. The petitioner also failed to produce the second marginal witness namely Asim Mahmood Dar. The petitioner while recording his statement as PW-1 deposed that said Asim Mahmood has been died. Petitioner's counsel produced photo copy of his death certificate as Exh.P-7. The learned Courts below did not accept the said photocopy of death certificate as a piece of evidence. Simple oral assertion is not enough to prove the factum of death of both the marginal witnesses of agreement to sell dated 17.07.2004. Article 80 of Qanun-e-Shahadat Order, 1984, provides the procedure how to prove when no attesting witness is found. It is obligatory upon the petitioner to prove this fact that his witnesses had been died or cannot be traced out. Article 80 of Qanun-e-Shahadat Order, 1984 is as under: -

"Proof where no attesting witness found. If no such attesting witness can be found, it must be proved that witnesses have either died or cannot be found and that the document was executed by the person who purports to have done so."

In this regard the august Supreme Court of Pakistan held in case "Sheikh Muhammad Muneer v. Mst. Feezan" (PLD 2021 SC 538) as under:-

"The Article states that it must be proved that the witness had either died or could not be found. Simple alleging that a witness cannot be found did not assuage the burden to locate and produce him. The petitioner did not lead evidence either to establish his death or disappearance, let alone seek permission to lead secondary evidence."

It was further held in "Ghulam Sarwar (Deceased) through L.Rs., and others v.. Ghulam Sakine" (2019 MR 567) as under:-

"Mere assertion that marginal witnesses of the mutations had died would not discharge the burden of a party. There is nothing to establish the death of said witnesses."

1. The petitioner failed to lead any evidence to establish death of the said witnesses. The petitioner had a way to prove the factum of death by leading secondary evidence. In this way, best evidence was withheld without showing any justification, thus inference of Article 129(g) of Qanun-e-Shahadat Order, 1984 has to be drawn against him. Reliance in this regard can again be placed upon the case "Muhammad Sarwar v. Mumtaz Bibi andothers" (2020 SCMR 276) wherein it was held as under:-

"It is also noticeable that the concerned Tehsildar who had allegedly sanctioned the mutation namely Rehmat Ali and another witness of the mutation namely Anwar Hussain (Patidai) were material witnesses of the alleged gift mutation. They were however not produced for any valid reason. Therefore, the presumption of Article 129 of the Qanum-e-Shahadat Order by reason of withholding of the best evidence can also be drawn against the petitioner."

The petitioner failed to produce attesting witnesses. In this regard reliance is placed upon case titled as "Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others" (PLD 2011 SC 241) wherein it was held as under: -

"The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution in couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself, therefore, it is mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koer and others (AIR 1925 Allahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984 (See Rain Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instrument falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise."

In recent decision cited as "Khudadad v. Syed Ghuzanfar Ali Shah alias S.Inam Hussain and others" (2022 SCMR 933), the apex Court once again reinforced its earlier verdicts by holding as under:-

"The attestation and execution both have distinct characteristics. The execution of document attributes signing in presence of attesting witnesses including all requisite formalities which may be necessary to render the document valid. While the fundamental and elemental condition of valid attestation is that two or more witnesses signed the instrument and each of them has signed the instruments in presence of the executants. This stringent condition mentioned in Article 79 is uncompromising. So long as the attesting witnesses are alive, capable of giving evidence and subject to the process of Court, no document can be used in evidence without the evidence of such attesting witnesses. The provision of this Article is mandatory and noncompliance will render the document inadmissible in evidence. If execution of a document is specifically denied, the best course is to call the attesting witnesses to prove the execution. When the evidence brought forward by a party to prove the execution of a document is contradictory or paradoxical to the claim lodged in the suit, or is inadmissible, such evidence would have no legal sanctity or weightage. "

2024 M L D 1214

[Lahore]

Before Farooq Haider, J

Muhammad Waseem---Appellant

Versus

The State and another---Respondents

Criminal Appeal No. 20219 of 2023 and Criminal Misc. No. 01 of 2023, decided on 5th April, 2024.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302(b), 452, 148 & 149---Qatl-i-amd, house-trespass, having made preparation for causing hurt to any person or for assaulting any person or for wrongfully restraining any person, rioting armed with deadly weapons, unlawful assembly---Suspension of sentence pending appeal---Convict sought suspension of execution of his sentence on merits---Accused were charged for committing murder of the deceased by firing---Record showed that a co-accused, who as per case of the prosecution, caused injury to the deceased of the case as well as two other co-accused persons, whose roles were at par and similar with the petitioner, had already been acquitted in the case by the Trial Court on the basis of same evidence through the same impugned judgment---As per case of the prosecution, pistol was recovered from a co-accused, whereas pistol and .44 bore rifle were recovered from present applicant however after going through the impugned judgment, it had been apprised by counsel for both the parties as well as prosecutor that it had not been mentioned in the impugned judgment that empties secured from the place of occurrence were found as having been fired from said weapons---When all said factors were taken into consideration in totality, then conviction recorded and sentence awarded to the present applicant needed reappraisal of evidence---Applicant/convict was on bail during trial of the case and nothing was available on the record to show that he misused said concession---In such circumstances, case of the applicant for suspension of execution of the sentence had been made out---Resultantly, application was allowed.

Soba Khan v. The State and another 2016 SCMR 1325 and Rafaqat Ahmad v. The State 1994 SCMR 1206 rel.

Asghar Ali Gill and Aazar Latif Kha for the applicant/conivit.

Ms. Asia Yaseen, Deputy District Public Prosecutor for the State.

Asif Mehmood Khan for the complainant.

Order

Criminal Miscellaneous No. 1 of 2023.

Farooq Haider,---Through instant miscellaneous application, Muhammad Waseem (applicant/convict) seeks suspension of execution of sentence awarded to him by learned Addl. Sessions Judge, Lahore/trial court vide impugned judgment dated: 28.02.2023 passed in complaint case titled as "Amjad Ali v. Muhammad Saleem, and others" in case arising out of FIR No.344/2012, dated: 04.04.2012 registered under Sections: 302, 452, 148, 149 P.P.C. etc. at Police Station: Saman Abad, Lahore, whereby he has been convicted and sentenced with "Imprisonment for Life" under Section: 302 (b) P.P.C. along with payment of compensation of Rs.5,00,000/- under Section: 544-A Cr.P.C. to the legal heirs of Muhammad Arshad (deceased of the case) and in default thereof to further undergo S.I. for six months. Benefit of Section: 382-B Cr.P.C. was also extended to the applicant/convict.

1. After hearing learned counsel for the parties, learned Deputy District Public Prosecutor and going through the impugned judgment appended with the appeal, it has been noticed that brief facts of the occurrence as per complaint have been mentioned in paragraphs Nos.2, 3 of the impugned judgment and perusal whereof reveals that accused persons namely {Muhammad Saleem, Muhammad Waseem (present applicant), Muhammad Adeel, Salah Uddin and two unknown accused armed with firearm weapons} dragged Muhammad Arshad (now deceased of the case), Salah Uddin (accused) raised a lalkara, accused persons started firing, Muhammad Saleem (accused) made direct fire with rifle which hit at the chest of Muhammad Arshad whereas accused persons made indiscriminate firing in result whereof fire shots hit at walls of the houses, Muhammad Arshad succumbed to the injuries.

Muhammad Saleem (aforementioned co-accused, who as per case of the prosecution, caused injury to the deceased of the case) as well as Muhammad Adeel and Salah-ud-Din (co-accused persons, whose roles are at par and similar with the present applicant) have already been acquitted in the case by the trial court on the basis of same evidence through the same impugned judgment.

As per case of the prosecution, pistol was recovered from Muhammad Saleem (co-accused, mentioned above) whereas pistol and .44 bore rifle were recovered from present applicant however after going through the impugned judgment, it has been apprised by learned counsel for both the parties as well as learned Deputy District Public Prosecutor that it has not been mentioned in the impugned judgment that empties secured from the place of occurrence were found as having been fired from said weapons.

When all aforementioned factors are taken into consideration in totality, then conviction recorded and sentence awarded to the present applicant needs reappraisal of evidence; in this regard, guidance has been sought from the case of "Soba Khan v. The State and another" (2016 SCMR 1325) and relevant portion from the same is reproduced: -

2024 M L D 1233

[Lahore]

Before Ali Baqar Najafi, Shahid Bilal Hassan, and Jawad Hassan, JJ

Ahsan Ullah---Petitioner

Versus

Muhammad Nasir Cheema and 3 others---Respondents

W.P. No. 2816 of 2024, decided on 15th January, 2024.

Elections Act (XXXIII of 2017)---

----S.173---Election dispute---Nomination papers, acceptance of---Omission of substantial nature---Meaning---Weapon, non-disclosure of---False declaration---Scope---Petitioner / objector assailed nomination papers of respondent / candidate on the plea that he made false declaration by not disclosing weapons in his ownership and that his company was a bank defaulter---Validity---Non-disclosure of licensed weapon of both prohibited as well as non-prohibited bores was not an omission of substantial nature as official record duly certified existence of such fact---Furthermore a settlement agreement was reached in High Court whereby date of discharge of liability of bank was extended to March 2025---Discrepancies in land holding and income could not be ascertained with expenditure in summary proceedings and could be agitated in post-election scenario---High Court declined to interfere in order passed by Election Tribunal accepting nomination papers of respondent---Constitutional petition was dismissed, in circumstances.

Muhammad Rizwan-ul-Hassan for the Petitioner.

Imran Arif Ranjha for ECP with Muhammad Haroon Kasi, Director (Law) ECP and Ms. Bushra Rasheed, Deputy Director (Law) ECP.

Order

Ali Baqar Najafi, J.---Through this Constitutional petition under Article 199 of the Constitution of Islamic of Pakistan, 1973 petitioner/objector has challenged the order dated 09.01.2024 passed by the learned Election Tribunal whereby the appeal filed by respondent No. 1 against rejection of his nomination papers was allowed.

1. The facts of the case are that respondent No.1 filed his nomination papers for contesting the elections for the constituency of PP 59 Gujranwala in which the petitioner filed objection. After the process of scrutiny, the nomination papers of respondent No.1 were rejected by the Returning Officer vide order dated 30.12.2023, which is reproduced as under:

"In response to public notice dated 19-12-2023 Mr. Muhammad Nasir Cheema has filed his nomination papers to undersigned through his authorized representative Mr. Nadeem Ashraf Khokhar on 22.12.2023.

Meanwhile the particulars of the candidate had been shared with Election Commission online facilitation center for further Inquiry.

Scrutiny of nomination papers was conducted on 28.12.2023 as per the given schedule. During the process of scrutiny, objections raised by the applicant were examined in the light of the available records/ documents. Moreover, a hearing notice was served to the candidate to provide a fair opportunity of hearing. The counsel of the candidate appeared before the undersigned on the date of scrutiny. He was heard at length and record was perused. He was given a reasonable opportunity of hearing to defend the allegation leveled against the candidate.

On the basis of data provided by ECP Online Facilitation Center and objections raised by the applicant, following discrepancies were found in the nomination papers of the said candidate as prescribed under the Elections Act 2017.

1. The candidate has deliberately concealed the details of weapons. He has Eleven (11) arms weapons in his possession, out of which 8 Non-Prohibited Bore (NPB) Arms Weapons were issued by home department, Government of Punjab and rest were issued by Ministry of Interior Islamabad. He has not mentioned the details of weapons in his nomination papers.

2. As per the letter PP-59-0010/No. BCPD/CPU-01/122/34101-9497912-5/2023 dated 24-12-2023 of State Bank of Pakistan, he owned a company named Ittefaq Rice Mills which is defaulter of 48.568 million rupees of Albaraqa Islamic Bank.

3. On the perusal of record there is a discrepancy in land holding and its income of years 2020-2021, 2021-2022, 2022-2023.

Keeping in view all above, I Touseef Hassan, Returning Officer PP. 59 Gujraranwala, after the perusal of record available, hereby reject nomination papers of Mr. Muhammad Nasir Cheema candidate under sections 62, 112 and .173 of Elections Act 2017."

1. However, the appeal filed by respondent No.1 was allowed by the learned Election Tribunal vide judgment dated 09.01.2024. Paras Nos. 4 to 8 of the order is reproduced as under:-

"4. Arguments have been heard. Record produced by the Returning Officer has been perused.

1. As regards the first objection, it is case of the appellant that he did not conceal any document regarding weapons and all the documents were attached with the nomination papers, however, the same were misplaced due to fault on the part of the Returning Officer. It is further claimed that copies of all concerned licences are attached to the titled appeal.

In somewhat similar situation it has been held by this Tribunal while allowing Election Appeal No.01 of 2024 that since the error upon which the said ground for rejection of nomination papers has been structured, admittedly is not of substantial nature and the Returning Officer should have acceded to the request made on behalf of the appellant for remedying the said defect. While holding so, reference has been made to the case of Ch. Muhammad Ashraf v. Malik Muhammad Muzaffar Khan and others (2022 CLC 2045) wherein it has been held us under:-

"Plain reading of above said sanction reveals in unequivocal terms that Returning Officer shall not reject a nominaion paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number ino the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll.

Therefore, the appellant cannot be disfranchised on the basis of said objection.

1. As far as second abjection is concerned, it is case of the appellant that he is not owner of Ittefaq Rice Mills as is reflected from partnership deed 14.09.2005 between Jamal Nasir Cheema, Akhtar Jameel and Mst. Sabeeri Naveed, available on the file. It is also claimed that in a suit filed by Al-Baraka Bank (Pakistan) Limited against M/s Ittefaq Rice Mills, etc. before Lahore High Court, Lahore, on 04.12.2023 a copy of settlement agreement dated 14.07.2023 was produced on the basis of which decree was passed. The said order is also annexed with the titled appeal. It is further contended that according to a letter dated 27.12.2023 issued by the Al-Baraka Bank to Ittefaq Rice Mills, available on the file; the due date of requisite liability has been extended to March, 2025, The said documents prima facie do not support the objection raised by the Returning Officer and at this stage of summary proceedings it cannot be determined that the appellant has any concern with the said Rice Mills or anything is liable against him in that regard. Thus, the said objection is not sustainable.

2024 M L D 1257

[Lahore]

Before Ali Baqar Najafi, J

Sardar Muhammad AwaIs Nakai---Appellant

Versus

Rana Sikandar Hayat and another---Respondents

Election Appeal No. 24488 of 2023, decided on 14th April, 2023.

Elections Act (XXXIII of 2017)---

----Ss. 62 & 231---Election for seat of Provincial Assembly---Nomination papers, acceptance of---Bank defaulter, allegation of---Candidate for general electionsfiled appeal before the Election Appellate Tribunal against the acceptance of the nomination papers submitted by respondent (opposing /contesting candidate )--- Objection ofthe appellant was that the respondent deliberately ,with mala fide intention , withheld the required information by disclosing only one lac as bank loan whereas he was defaulter of Rs. 9.90 million --- Validity --- Record revealed that in the form submitted by respondent in the column of LIABILITIES, "Rs. 1 Million loan was mentioned--- In the impugned order passed by the Returning Officer it was observed that the candidate was not declared as defaulter by any institution and that the deficiencies pointed out by the objector were not substantial in nature---Stance of the respondent was that his wife was independent and an affidavit to said extent was produced before the Returning Officer who, of course, had to satisfy himself through an affidavit--- As per a certificate issued by the concerned bank, about half of the loan (Rs. 9.90 million) was already paid as 1st installment, whereas 2nd installment and the remaining amount would be paid/adjusted on two promised dates of near future---After settlement of the loan, respondent would not be considered as a defaulter ---Appeal filed by the candidate against acceptance of nomination papers of opposing / contesting candidate, was dismissed, in circumstances.

Rana Intezar for the Appellant.

Imran Arif Ranjha for ECP.

Hafiz Adeel Ashraf, Assistant Law Officer, ECP.

Muhammad Rizwan-ul-Hassan and Hamza Irshad for respondent No. 1.

Order

Ali Baqar Najafi, J.--- This appeal under Section 63 read with Section 231 of Elections Act, 2017 is directed against the order dated 22.03.2023 whereby the nomination papers submitted by respondent No.1 were accepted.

1. Briefly, the facts giving rise to filing of this appeal are that the appellant is the registered voter of PP-181 (Kasur-VIII) and is also the candidate for the seat of Member Provincial Assembly from the same Constituency. The respondent No.1 submitted nomination papers for the General Elections of the Provincial Assembly from the same constituency wherein he deliberately withheld the required information with a mala fide intention and, therefore, he raised the objection which were rejected, hence this appeal.

2. Learned counsel for the appellant contends that respondent No.1 disclosed in Form-B only One Lac as bank loan whereas he was defaulter of Rs. 9.90 Million of HBL Phool Nagar, Branch and in clause "D" of the affidavit he did not furnish the correct information.

2024 M L D 1262

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

Muhammad Hamid Ali and others---Appellants

Versus

Anjuman-e-Burhani of Dawadi Bhora Community and others---Respondents

F.A.O. No. 120 of 2023, heard on 15th April, 2024.

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

----S. 17---Ejectment petition---Default in payment of monthly rent---Relationship of landlord and tenant, denial of---Rent Controller allowed the ejectment petition, seeking eviction of the appellant from the rented premises (shop owned by the Trust), filed by the respondents(Anjuman/community managing the affairs of the Trust)---Stance of the appellant /tenant was that respondents were incorrectly claiming themselves to be landlords of the rented premises and he was tenant of the Trust---Validity ---Said stance of the appellant/tenant was not correct as respondents produced three witnesses out of whom one was the representative of the Trust who stated in cross-examination that for the last ten years or so all affairs, including tenancy of the Trust had been entrusted under the management of the respondents---From said statement , it was clear that all affairs of the Trust were entrusted to the respondent/Anjuman for management; said statement had not been suggested to be incorrect nor the appellant, having adduced his evidence later, bothered to display in his evidence any documentary record to controvert or to falsify said part of statement of said witness ---As such , in light of said mute conduct of the appellant, there rested no room for any presumption other than to believe said statement of the witness, as such relationship of landlord and tenant stood sufficiently established between the parties and that respondents were landlords --- Moreover, the appellant had himself admitted in course of cross-examination that he had not paid the rent of the rented premises after the year 2012 and he had absolutely been unable to put forth any justification with regard to said omission--- So, default on the part of the appellant also stood proved beyond any doubt --- No illegality or infirmity or material irregularity had been noticed in the impugned order passed by the Rent Controlle --- Appeal filed by the tenant was dismissed, in circumstances.

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

---- S. 17 ---Ejectment petition --- Multiple grounds for the eviction of the tenant --- Proof---If landlord canvasses multiple grounds for the eviction of the tenant it is not necessary for him to establish and prove all those grounds --- If the landlord is able to prove one of the grounds asserted in the ejectment petition, the tenant can be evicted by the Rent Controller.

Major (Retd.) Ahsan-ul-Haque v. Muhammad Ejaz 2011 SCMR 487 ref.

Sardar Zafar Iqbal for Appellants.

Sh. Muhammad Munir and Ambreen Khan for Respondents.

Judgment

JAWAD HASSAN, J.---This appeal in terms of Section 24 of the Cantonments Rent Restriction Act, 1963 (the "Act") arises out of order dated 06.09.2023 whereby the Additional Rent Controller, Cantonment proceeded to allow the ejectment petition filed by the Respondents seeking eviction of the appellant from shop Nos.1455-1456 situated at Adam Jee Road, Rawalpindi (the "rented premises").

1. The facts forming background of this appeal are that the respondents Nos.1 and 2, claiming themselves to be landlords of the "rented premises", filed an ejectment petition under Section 17 of the "Act" seeking eviction of the Appellant on the grounds of expiry of tenancy period and default in payment of monthly rent. The ejectment petition was resisted by the appellant on multiple grounds, including denial of relationship of landlord and tenant. From the divergent pleadings of the parties, the Additional Rent Controller framed two issues and then proceeded to record evidence of both the sides. On completion of evidence, ejectment petition was accepted vide order dated 06.09.2023, hence this appeal.

2. Learned counsel for the Appellant inter alia argued that no cogent evidence was produced by the Respondents to show that they are the landlords of the "rented premises" rather the Appellant was the tenant of one Abdul Hussain Ismail Jee Mangla Trust but ejectment petition has been accepted in an illegal and unlawful manner; that the Additional Rent Controller did not properly appreciate the evidence of the parties while allowing the ejectment petition; that the impugned order is not tenable under the law.

3. Conversely, learned counsel for Respondents controverted the stance of the Appellant and stated that the impugned order has been passed by the Additional Rent Controller, Cantonment pursuant to proper appreciation of the facts and having jurisdiction to decide the lis.

4. Heard. Record perused.

5. It evinces from the record that ejectment petition was filed by Respondents which was resisted by the Appellant by submitting his reply wherein he denied the relationship of landlord and tenant. In support of averments of the petition, Shahid Hussain appeared as PW-1, Muhammad Bashir as PW-2 and Ali Jozar Moeez as PW-3 who submitted their affidavits as Exh.P-1, Exh.P-6 and Exh.P-7 respectively. They reiterated the contents of ejectment petition and stated that the "rented premises" belongs to Abdul Hussain Ismail Jee Mangla Trust and according to trust deed, the affairs of the "rented premises" regarding maintenance, repair and possession are under the management of the Respondents/Anjuman-e-Burhani, Rawalpindi. On the contrary, the Appellant appeared as RW-1 and submitted his affidavit in evidence as Exh.R1 and controverted the claim of the Respondents. A specific stance was taken by the Appellant that he was the tenant of Abdul Hussain Ismail Jee Mangla Trust and denied the relationship of landlord and tenant. The said stance of the Appellant is not correct as All Jozar Moeez who appeared as PW-3 is the representative of Abdul Hussain Ismail Jee Mangla Trust. He has stated in cross-examination that:

1. From above statement, it is quite clear that all affairs of Abdul Hussain Jee Mangla Trust were entrusted to the Respondent/Anjuman-e-Burhani for management. From the analysis of the evidence produced by both the sides, there remains no cavil to the fact that the Respondents have duly established that they are the landlord of the "rented premises". Statement of PW-3 referred supra, had not been suggested to be incorrect nor the Appellant, having adduced his evidence later, bothered to display in his evidence any documentary record to controvert or to falsify said part of statement of PW-3. As such, in light of said mute conduct of the Appellant, there rests no room for any presumption other than to believe said statement of PW-3, as such relationship of landlord and tenant stands sufficiently established between the parties. Moreover, the Appellant has himself admitted in course of cross-examination that he has not paid the rent of the "rented premises" after 2012 and he has absolutely been unable to put forth any justification with regard to his said omission. So, default on his part also stands proved beyond any doubt.

2024 M L D 1278

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Ch. Abdul Aziz, JJ

Adil Zaib ---Appellant

Versus

The State and another---Respondents

Criminal Appeal No. 699 of 2022, and Murder Reference No. 57 of 2022, heard on 27th March, 2024.

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

----Ss. 302(b) & 452---Pakistan Arms Ordinance (XX of 1965), S. 13-2(a)---Qatl-i-amd, house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, possession of illicit weapon---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for committing murder of the daughter of the complainant with Churra (dagger)---Tutor of the deceased and her father furnished ocular account of the incident being eye-witnesses---Both the eye-witnesses had absolutely no grudge or ill-will to falsely implicate the accused in the case---Said witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination---Eye-witnesses had corroborated each other on all material aspects of the case, they had also established their presence at the time and the place of occurrence with their stated reasons---Evidence of the eye-witnesses was straightforward, trustworthy, confidence inspiring and could not be discarded merely on probabilities---Discrepancies in the statements of the witnesses pointed out by defence were minor and general in nature, and they occur in every case when witnesses are cross-examined after a long time of the occurrence as in present case---Thus, such discrepancies were not fatal to the prosecution case---Medical evidence had been furnished by Medical Officer who during post-mortem examination on the dead body of deceased observed 22-injuries caused with sharp edged weapon on her person attributed to accused which were ante-mortem in nature and were sufficient to cause death in ordinary course of nature---Thus, the medical evidence had fully supported the ocular account---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 452---Pakistan Arms Ordinance (XX of 1965), S. 13-2(a)---Qatl-i-amd, house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, possession of illicit weapon---Appreciation of evidence---Weapon of offence recovered from the accused---Reliance---Accused was charged for committing murder of the daughter of the complainant with Churra (dagger)---Report of Forensic Science Agency showed that blood stained Churra recovered from the possession of the accused had matched with DNA profile of deceased---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 452---Pakistan Arms Ordinance (XX of 1965), S. 13-2(a)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, possession of illicit weapon---Appreciation of evidence---Plea of accused not backed by any evidence---Accused was charged for committing murder of the daughter of the complainant with Churra (dagger)---Accused had denied his involvement in the case in his statement recorded under S.342, Cr.P.C., and stated that he was innocent and had falsely been involved in the case---Accused had neither opted to appear as witness under S.340 (2), Cr.P.C., nor produced any defence evidence in support of his defence plea---Appeal against conviction was disissed accordingly.

Ayesha Sultana and Haider Mehmood Mirza for Appellant.

Mian Imran Rahim, DPG with Ameer SI for the State.

Ibrar Qureshi for the Complainant.

Date of hearing: 27th March, 2024.

Judgment

SADAQAT ALI KHAN, J.---Appellant (Adil Zaib) has been tried by the trial Court in case FIR No.143, dated 14.02.2022, offences under Sections 302/452, P.P.C. read with Section 13-2(a) The Punjab Arms Ordinance, Police Station Ratta Amral, District Rawalpindi, and was convicted and sentenced vide judgement dated 30.08.2022 as under:-

Adil Zaib (appellant)

Under Section 302(b) P.P.C Sentenced to DEATH as Ta'zir for committing Qatl-i-Amd of Barira Zahid (deceased) with compensation of Rs.500,000/- payable to legal heirs of the deceased under section 544-A Cr.P.C. (recoverable as arrears of land revenue) and in default whereof to further undergo simple imprisonment for 6-months.

Under Section 449 P.P.C Sentenced to Rigorous Imprisonment for 10-years with fine of Rs.100,000/- and in default whereof to further undergo two months SI.

1. Appellant has filed this Criminal Appeal against his conviction and the trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.

2. Heard. Record perused.

3. Barira Zahid aged about 13 years was done to death at the hands of her Islamic teacher (appellant) in the Baithak of her tutor Zahida Parveen PW-8 when she was teaching the students on 14.02.2022 at 4:00 p.m, whereafter FIR was lodged on the same night at 08:35 p.m, on the statement of her father Zahid Naseer PW-6/ complainant. Appellant was apprehended red-handed at the spot with "Churra."

4. Anshra Zahid real sister of the deceased was with the deceased at the time of occurrence and appeared before the trial Court as PW-7 but it was declared by the trial Court that she being a tender age is not a competent witness to testify under Article 3 of the Qanun-Shahadat Order, 1984 and her statement was not recorded.

5. Zahida Parveen PW-8 (tutor of the deceased) while appearing before the trial Court stated in her statement that on 14.02.2022, she was in the Baithak of her house for tuition, it was leave time, students were coming and going, Barira Zahid (deceased) and her sister Anshra Zahid (discussed above) were sitting in front of her on mat, Adil Zaib (appellant) armed with Churra came there, she asked him as to why he entered in the Baithak, appellant (Adil Zaib) told her to go aside otherwise she would be killed, then he (appellant) caused injuries on the person of Barira Zahid (deceased) with repeated blows of Churra, on hue and cry of her as well as students present there, Mohalladars attracted there, Zahid Naseer PW-6 and his brother Shahid Naseer (given up PW) also reached there to take their daughters back (Anshra Zahid and others) to their house, appellant was apprehended with Churra at the spot by them.

6. Zahid Naseer PW-6 (real father of deceased) while reiterating the abovesaid story before the trial Court further stated that Adil Zaib (appellant) had been teaching the Holy QUR'AN to his daughters Anshra (discussed above), Barira Zahid (deceased) and son (Mobiz Zahid) in his house at Maghrib time, on 08.02.2022 Barira Zahid (deceased) told him that her teacher (appellant) had a bad eye on her, when on the following day i.e 09.02.2022, Adil Zaib (appellant) came to his house at Maghrib time for teaching the Holy QUR'AN to her daughters and son, he (Zahid Naseer PW-6) told him that he (appellant) has betrayed his trust and hurt him, then appellant infuriated and went away while extending threats. He further submits that appellant was apprehended at the spot with blood stained "Churra" and has been handed over to Muhammad Riaz, SI PW-12 with "Churra" on his arrival who while appearing before the trial Court has supported this evidence.

7. Both the eye-witnesses (Zahid NaseerPW-6 and Zahida ParveenPW-8) have absolutely no grudge or ill-will to falsely implicate the appellant in the present case. They were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They have corroborated each other on all material aspects of the case. They have also established their presence at the time of occurrence at the place of occurrence with their stated reasons. Their evidence is straightforward, trustworthy, confidence inspiring and cannot be discarded mere on probabilities.

8. The discrepancies in the statements of the PWs pointed out by learned counsel for the appellant, are minor and general in nature, occur in every case when witnesses (who are human-beings) are cross-examined after a long time of the occurrence as in present case, are not fatal to the prosecution case.

9. The medical evidence has been furnished by Dr. Musarrat Batool PW-3 who during post-mortem examination on the dead body of Barira Zahid (deceased) observed 22- injuries caused with sharp edged weapon on her person attributed to Adil Zaib (appellant) which were ante-mortem in nature and were sufficient to cause death in ordinary course of nature, therefore, the medical evidence has fully supported the ocular account discussed above.

10. Report (Exh.PT) of PFSA shows that blood stained Churra recovered from the possession of the appellant has matched with DNA profile of Barira Zahid (deceased).

2024 M L D 1305

[Lahore]

Before Farooq Haider, J

Muhammad Ashfaq---Petitioner

Versus

The State and another---Respondents

Crl. Misc. No. 80313-B of 2023, decided on 8th April, 2024.

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

----S. 497(1)---Penal Code (XLV of 1860), Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Petitioner/accused along with his co-accused persons were charged for committing murder of the brother of the complainant by firing---Admittedly petitioner neither caused any injury to deceased of the case nor to anybody else in this case, rather allegation of closing door of the room where complainant and other witnesses were present, raising lalkara as well as taking deceased into clasp had been leveled against him---So far as lalkara was concerned, whether it was proverbial or commanding would be seen during trial---As far as allegation of taking deceased of the case into clasp by the present petitioner was concerned, suffice to say that when it was prosecution's own case that both arms as well as legs and chest of deceased were hit with shots fired by firearm then taking into clasp the victim while exposing himself to the risk of being hit itself required further probe/inquiry---During investigation, it had been concluded that petitioner was not equipped with any weapon at the time of occurrence rather he came, entered into the place of occurrence empty handed and was present at the place of occurrence when co-accused committed the occurrence while making firing from his pistol---Another accused against whom similar role of raising lalkara as well as clasping deceased of the case was alleged had been declared innocent during investigation of the case and similar was the position of accused persons of abetment who had also been found innocent during investigation of the case---Nothing had been recovered from the present petitioner---Case of the prosecution against the petitioner, at present, required further probe/inquiry and fell within the purview of subsection (2) of S.497, Cr.P.C.---Petitioner was arrested in the case on 10.09.2023 and sent to jail on 18.09.2023 where he was confined till now---Mere detention of the petitioner in the lockup would not serve any useful purpose to the case of prosecution---Bail could not be withheld as advance punishment---Bail petition was allowed, in circumstances.

Ghulam Hyder v. The State 2021 SCMR 1802 and Jamil Khan v. The State and another 2005 PCr.LJ 2003 rel.

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

----Ss. 497 & 498---Bail---Scope---To err in granting bail is better than to err in declining the same because ultimate conviction and sentence can repair the wrong resulting from mistaken relief of bail.

Chairman, National Accountability Bureau through P.G., NAB v. Nisar Ahmed Pathan and others PLD 2022 Supreme Court 475 rel.

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

----S. 497---Bail order---Observations of Court---Scope---Observations made in the bail order are just tentative in nature, strictly confined to the disposal of bail petition and same have no bearing upon trial of the case.

Muhammad Tayyab Hanif Chaudhry for Petitioner.

Muhammad Naveed Umar Bhatti, Deputy Prosecutor General for the State along with Mazhar, Inspector and record of the case.

Muhammad Tosif Tariq Tipu for the Complainant/Respondent No.2.

Order

Farooq Haider, J.---Through instant petition, Muhammad Ashfaq (petitioner/accused) has sought post-arrest bail in case arising out of F.I.R. No.602/2023 dated: 30.07.2023 registered under Sections: 302, 109, 148, 149 P.P.C. (during investigation offence under Section: 449 P.P.C. was added subsequently) at Police Station: Saddar Gojra, District: Toba Tek Singh.

1. After hearing learned counsel for the parties, learned Deputy Prosecutor General and going through the available record with their able assistance, it has been noticed that briefly as per Crime Report (FIR) got recorded by Jabbar Ahmad (complainant), on 30.07.2023 at about 1:15 p.m., Muhammad Abbas, Muhammad Nawaz and Muhammad Ashfaq (present petitioner) while armed came, entered into the house, Muhammad Ashfaq (present petitioner) locked the room where complainant and other witnesses were present, Muhammad Nawaz and Muhammad Ashfaq (present petitioner) took Naveed Akhtar (brother of the complainant) into clasp () Muhammad Nawaz raised lalkara upon which Muhammad Abbas fired shots at both legs of Naveed Akhtar, who while becoming injured fell down, Muhammad Ashfaq (present petitioner) raised lalkara upon which Muhammad Abbas fired shots at both arms of Naveed Akhtar, Muhammad Nawaz further asked Muhammad Abbas for finishing him upon which Muhammad Abbas fired successive shots, one fire shot went through and through from chest, accused persons fled away while uttering abuses, raising lalkara and brandishing weapons, Naveed Akhtar succumbed to the injuries on the way to hospital, this occurrence took place on the abetment and consultation of Abdul Razzaq and Muhammad Zubair. Admittedly petitioner neither caused any injury to Naveed Akhtar (now deceased of the case) nor to anybody else in this case, rather allegation of closing door of the room where complainant and other witnesses were present, raising lalkara as well as taking deceased into clasp has been levelled against him. So far as lalkara is concerned, either it was proverbial or commanding would be seen during trial. As far as allegation of taking Naveed Akhtar (now deceased of the case) into clasp by the present petitioner is concerned, suffice it to say that when it is own case of prosecution that both arms as well as legs and chest were hit with shots fired by firearm weapon then taking into clasp the victim while exposing himself to the risk of being hit by doing so itself requires further probe/inquiry and in this regard guidance has been sought from the case of "Ghulam Hyder v. The State" (2021 SCMR 1802) whereas case of "Jamil Khan v. The State and another" (2005 PCr.LJ 2003) can also be advantageously referred on the subject. On Court's query, learned Deputy Prosecutor General under instructions of police official (present before the Court) and after himself going through available record submits that any offence regarding confinement of complainant or other witnesses into the room has not been added in this case till now and while referring to case diary No.17 dated 15.09.2023 apprises that after thorough investigation it has been concluded by the investigating agency that petitioner was not equipped with any weapon at the time of occurrence rather he came, entered into the place of occurrence empty handed and was present at the place of occurrence when Muhammad Abbas (co-accused) committed the occurrence while making firing from his pistol; further apprises that Muhammad Nawaz against whom similar role of raising lalkara as well as clasping Naveed Akhtar (now deceased of the case) was alleged has been declared innocent during investigation of the case and similar is the position of accused of abetment namely Abdul Razzaq and Zubair who have also been found innocent during investigation of the case; also adds that nothing has been recovered from the present petitioner.

When all the aforementioned factors are taken into consideration in totality then case of the prosecution against the petitioner, at present, requires further probe/inquiry and falls within the purview of subsection (2) of Section: 497 Cr.P.C. Petitioner was arrested in the case on 10.09.2023 and sent to jail on 18.09.2023 where he is confined till now. Mere detention of the petitioner, in the lockup would not serve any useful purpose to the case of prosecution. Bail cannot be withheld as advance punishment.

2024 M L D 1363

[Lahore]

Before Farooq Haider, J

Syed Muhammad Ali---Petitioner

Versus

The State and another---Respondents

Crl. Misc. No. 18392-B of 2024, decided on 19th April, 2024.

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

----S. 489-F---Dishonestly issuing a cheque---Scope---Section 489-F, Penal Code, 1860 (P.P.C.), was brought on the statute for the purpose of awarding punishment to the person, who issues the cheque dishonestly for repayment of a loan or fulfillment, of an "obligation", which is dishonoured on presentation---For invoking section: 489-F, P.P.C., mere issuance of cheque or its dishonouring is not sufficient rather first of all it will have to be proved as a "must" that cheque was issued for repayment of loan or fulfilment of obligation, meaning thereby that there must be material available on the record to show loan or obligation.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Post arrest bail, grant of---Further inquiry---Record revealed that though it was mentioned in the FIR that complainant had to take amount (Rs 32,00,000/-) from the petitioner/accused yet during entire investigation of the case, it had not come on the record that when, before whom and for which reason as well as for what purpose, said amount was given by the complainant to the petitioner and how it was due to complainant from him( petitioner), therefore, applicability of S.489-F P.P.C. in the present case itself requires further probe/inquiry within the purview of subsection (2) of S.497, Cr.P.C---Bail was granted to the accused, in circumstances.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Post arrest bail, grant of---Section 489-F, P.P.C., is not brought on the statute for using the same as a tool for recovery of the amount, rather for the purpose of awarding punishment to the person, who issues the cheque dishonestly for payment of a loan or fulfilment of an "obligation", which is dishonoured on presentation---Although cheque involving huge amount had been dishonoured in the present case yet punishment for the offence under S.489-F, P.P.C., is three years, or fine, or both and of course said punishment does not fall within theambit of prohibition contained in Section: 497 Cr.P.C---Grant of bail in such like cases is a rule and refusal is an exception---Bail was granted to the accused , in circumstances.

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

----Ss. 512 & 173---Proclaimed offender---Period in the proclamation for appearance of the accused---Scope---Though it was contented by the prosecution that non-bailable warrants of arrest of the petitioner was issued after five days of registration of case against him;then after seven days , proclamation against him was issued and then after two days challan report under S.173, Cr.P.C., for proceedings under S.512, Cr.P.C., was submitted ; yet the petitioner was arrested in the present case after a month of issuance of non-bailable warrants and was sent to jail the next day---Since period in the proclamation for appearance of the accused could not be less than 30 days as per statute and admittedly the petitioner was arrested after about 21 days of issuance of proclamation i.e. before expiry of prescribed period of 30 days , therefore, he could not be termed as proclaimed offender.

Waheed alias Naheed v. The State and another 2013 YLR 335 ref.

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

----S. 497(2)---Bail---Further inquiry---If the Court has come to the conclusion that case of the prosecution against the accused requires further probe/inquiry, then bail is grantedto him as of right and the same cannot be withheld due to abscondence.

Qamar alias Mitho v. The State and others PLD 2012 SC 222; Chairman NAB through PGA NAB Islamabad v. Muhammad Khalid 2016 SCMR 676; Mukaram v. The State and another2020 SCMR 956; Saeed Yousaf v. The State and another 2021 SCMR 1295; Saad Zia v. The State and others 2023 SCMR 1898 and Abdul Rasheed v. The State and another 2023 SCMR 1948 ref.

Zabi Ullah Nagra for the Petitioner.

Ms. Aasia Yaseen, Deputy District Public Prosecutor for the State with Javaid, ASI/I.O and record of the case.

Amjad Iqbal Khan for the Complainant/Respondent No.2.

Order

Farooq Haider, J.---Through instant petition, Syed Muhammad Ali (petitioner/accused) has sought post-arrest bail in case arising out of FIR. No.1042/2024 dated: 03.02.2024 registered under Section: 489-F P.P.C. at Police Station: Raiwind City, District: Lahore.

1. After hearing learned counsel for the parties, learned Deputy District Public Prosecutor and going through the available record with their able assistance, it has been noticed that briefly, as per Crime Report (FIR) got recorded by Syed Tallat Imran (complainant), he had to take Rs.32,00,000/- (Rupees thirty two hundred thousands only) from Syed Muhammad Ali (accused in the case, now petitioner) and he (present petitioner) issued cheque of Rs.32,00,000/- to the complainant which was dishonoured on presentation by the bank.

Undeniably, Section: 489-F P.P.C. was brought on the statute for the purpose of awarding punishment to the person, who issues the cheque dishonestly for repayment of a loan or fulfilment of an "obligation", which is dishonoured on presentation; for the purpose of ready reference, Section: 489-F P.P.C. is hereby reproduced: -

"489-F P.P.C. Dishonestly issuing a cheque.--Whoever dishonestly issues a cheque towards re-payment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque." (emphasis added)

Bare perusal of aforementioned provision of law reflects that for invoking Section: 489-F P.P.C., mere issuance of cheque or its dishonouring is not sufficient rather first of all it will have to be proved as a "must" that cheque was issued for repayment of loan or fulfilment of obligation, meaning thereby that there must be material available on the record to show loan or obligation.

On Court's query, learned Deputy District Public Prosecutor under instructions of investigating officer of the case (present before the Court) and after herself going through available record apprises that though it is mentioned in the first information report that complainant had to take Rs.32,00,000/- from the petitioner yet during entire investigation of the case, it has not come on the record that when, before whom and for which reason as well as for what purpose, said amount was given by the complainant to the petitioner and how it was due to complainant from the petitioner, therefore, applicability of Section: 489-F P.P.C. in this case itself requires further probe/inquiry within the purview of subsection (2) of Section: 497 Cr.P.C.

It goes without saying that Section: 489-F P.P.C. was not brought on the statute for using the same as a tool for recovery of the amount rather for the purpose of awarding punishment to the person, who issues the cheque dishonestly for payment of a loan or fulfilment of an "obligation", which is dishonoured on presentation. Although cheque involving huge amount has been dishonoured in the case yet punishment for the offence under Section: 489-F P.P.C. is three years, or fine, or both and of course said punishment does not fall within the ambit of prohibition contained in Section: 497 Cr.P.C.; grant of bail in such like cases is a rule and refusal is an exception.

Though it is contention of learned Deputy District Public Prosecutor that case was registered on 03.02.2024, non-bailable warrants of arrest of the petitioner were issued on 08.02.2024, proclamation against him was issued on 15.02.2024 whereas challan report under Section 173 Cr.P.C. for proceedings under Section: 512 Cr.P.C. was submitted on 17.02.2024 yet at the same time apprises that petitioner was arrested in this case on 08.03.2024 and sent to jail on 09.03.2024 where he is confined till now. Since proclamation was issued on 15.02.2024, and period in the proclamation for appearance of the accused cannot be less than 30 days as per statute and admittedly petitioner was arrested on 08.03.2024 i.e. before expiry of said period, therefore, he cannot be termed as proclaimed offender; in this regard, case of "Waheed alias Naheed v. The State and another" (2013 YLR 335) and "Nasir Khan and others v. State and another" (PLJ 2014 Cr.C.(Lahore) 659 (DB) can be referred.

2024 M L D 1376

[Lahore]

Before Shams Mehmood Mirza, J

Muhammad Nasir Cheema---Petitioner

Versus

Election Commission of Pakistan and others---Respondents

W.P. No. 20731 of 2024, heard 22nd May, 2024.

Elections Act (XXXIII of 2017)---

----Ss. 8 (b) & 95---Election dispute---Recounting of votes---Consolidation of result---Petitioner / returned candidate was aggrieved of order passed by Election Commission to recount votes after consolidation of result---Validity---Consolidation of result took place prior to decision on application for recounting of votes and thereafter petitioner was notified as returned candidate---Election Commission had no jurisdiction to entertain second application of respondent let alone pass an order thereon for recounting of votes---Respondent / candidate, after consolidation of election result had option of filing an election petition in which proceedings ballots could be recounted---After consolidation of election result Election Commission had become functus officio in relation to any power under S.95 (6) of Elections, Act, 2017---High Court set aside order passed by Election Commission as the same was passed without lawful authority and was of no legal effect---Constitutional petition was allowed, in circumstances.

Election Commission of Pakistan v. Pakistan Tehreek-e-Insaf Islamabad PLD 2024 SC 267; Zulfiqar Ali Bhatti v. Election Commission of Pakistan and others 2024 SCMR 997; Mir Mujib-ur-Rehman Muhammad Hassani v. Returning Officer and others PLD 2020 SC 718; Abdul Rehman Khan Kanju v. Rana Muhammad Faraz Noon etc ICA No. 29 of 2024 and Ch. Bilal Ejaz v. Election Commission of Pakistan and others Writ Petition No. 16416 of 2024 ref.

Haris Azmat and Hassan Ali Khan for Petitioner.

Waqas Ahmad Mir, Hammad Hussain Shah, Ali Hussain Gillani and Manahil Azfar Rana for Respondent No. 3.

Imran Arif Ranjha (Legal Advisor) for Election Commission of Pakistan.

Muhammad Haroon Kasi (Director Law).

Sheraz Zaka, Assistant Attorney General.

Judgment

Shams Mehmood Mirza, J.---The issue whether Election Commission retains any jurisdiction to direct the Returning Officer to recount the votes after consolidation of results has once again cropped up before this Court in this case.

1. The petitioner, who contested the election from PP-59, Gujranwala-I and was declared as the returned candidate, is aggrieved of order dated 18.03.2024 passed by the Election Commission of Pakistan/respondent No.1 on the application filed by his rival candidate i.e. respondent No.3 for assuming jurisdiction for recounting of votes.

2. The petitioner claims that he belongs to Pakistan Tehreek-e-Insaf, the political party which was deprived of its election symbol by the Supreme Court in its decision rendered in the case of Election Commission of Pakistan v. Pakistan Tehreek-e-Insaf Islamabad PLD 2024 SC 267. This compelled the candidates belonging to Pakistan Tehreek-e-Insaf to contest the general elections 2024 as independent candidates without a common symbol. The petitioner alleges in paragraph 3 of this petition that the Election Commission by design is converting the election results of the PTI backed independent candidates by allowing applications for recounting of votes filed on behalf of those candidates who lost the election. It is furthermore argued that under the scheme of the Elections Act, .2017 (the Act) after consolidation of results and issuance of Form 47 the Election Commission is not authorized to entertain any application for recounting of votes. Several judgments supporting this proposition have been brought to the notice of this Court including the latest judgment of the Supreme Court in the case of Zulfiqar Ali Bhatti v. Election Commission of Pakistan and others 2024 SCMR 997.

3. Respondent No.3 submits that he tried to approach the Returning Officer soon after the election for recounting of votes but could not succeed and resultantly an application under section 95(6) of the Act (First Application) was filed before the Election Commission on 10.02.2024. The Election Commission through its order dated 11.02.2024 directed the Returning officer to entertain the application of respondent No.3 "... if consolidation has not been concluded already." It is an admitted fact that consolidation of result had taken place prior to 11.02.2024 as Form-47 was issued by the Returning Officer on 09.02.2024. The Election Commission issued the requisite Notification on 17.02.2024. Respondent No.3, however, filed another application. (Second Application) before the Election Commission for implementation of its earlier order issued on 11.02.2024 and for cancellation of Form-45 and Form-49. The Election Commission on 18.03.2024 passed the order entertaining the application and directing the Returning Officer to submit a detailed report regarding order dated 11.02.2024 and issued notice to the petitioner to submit his reply.

4. Any inquiry on the issue raised before this Court must start from Article 225 of the Constitution which firmly commands that "No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament)."

5. The Act faithfully followed the command of the Constitution by enacting section 139(1) of the Act which states that "No election shall be called in question except by an election petition filed by a candidate for that election."

6. Section 95, which primarily deals with consolidation of results, grants a limited authority to the Returning Qfficer for recounting of the ballot papers of one or more polling stations subject to the conditions enumerated in subsection (5) provided the consolidation proceedings have not commenced. Similarly, the Election Commission can direct the Returning Officer to recount the ballot papers of one or more polling stations before conclusion of the consolidation proceedings.

7. Before considering the arguments of the parties, it is necessary to address the first enquiry which concerns the identification of the statutory purpose for the provisions contained in subsections (5) and (6) of section 95 of the Act. The proper construction of these provisions is to be found in the language used and its meaning read in its statutory context. For this purpose, the statutory history of this provision would be a useful guide.

8. The erswhile Representation of the People Act, 1976 provided .in section 39(6) that the Returning. Officer may recount the votes of his own motion if he considers it necessary or upon the request of a contesting candidate or an election agent present if, in his opinion, the request is not unreasonable. This exercise was to be carried out immediately after the counting of votes at the close of poll.

9. The broad discretion vesting in the Returning Officer was watered-down after the Representation of the People Act, 1976 was repealed by the Act in the year 2017. Section 95(5) of the Act originally provided for recounting of votes by the Returning Officer (a) if a request was made by a contesting candidate where the margin of victory was less than five percent of the total votes polled in the constituency or ten thousand votes, whichever is less, or (b) where the Returning Officer considered the request of the candidate as not unreasonable.

10. This provision came up for interpretation in the case of Mir Mujib-ur-Rehman Muhammad Hassani v. Returning Officer and others PLD 2020 SC 718. The majority in the Supreme Court came to a curious result by holding that the two conditions set out in section 95 (5) must be read conjunctively. The relevant portion of the judgment reads as follows:

However, once the words "or the Returning Officer considers such request as not unreasonable" at the end of the sentence are read along with the remaining conditions it becomes clear that 'such' an application for a recount must be considered reasonable by the Returning Officer in addition to meeting the other pre-conditions imposed by the provision. To our mind, this is the correct reading of section 95(5) of the Act based on the linguistic construction of the sentence, which makes it abundantly clear that the last part of the sentence (concerning reasonableness) is to be read conjunctively with the remaining conditions imposed on an application for a recount to qualify.

1. The legislature through the Elections (Second Amendment) Act, 2023 on 5th August, 2023 nullified the effect of the aforementioned judgment by excluding the Condition "the Returning Officer considers such request as not unreasonable" from section 95 (5) and modifying the criteria for recounting of votes in the following manner.

(a) The margin of victory between returned and runner up candidates is less than five percent of the total votes polled in the constituency or eight thousand votes in case of National Assembly constituency and four thousand votes in case of a Provincial Assembly constituency, as the case may be, whichever is less; or

(b) The number of votes excluded from the count by the Presiding Officer are equal to or more than the margin of victory;

The object and the context of these amendments make plain that the legislature has directed its attention towards the conditions that would trigger recounting of votes. These conditions on their literal construction reveal that the authority is granted to the Returning Officer simply to rectify the errors of counting, if any, and to perhaps ascertain the validity of the excluded votes if the relevant threshold is met with. The Returning Officer cannot reject ballot papers in this exercise for that would be a matter falling in the jurisdiction of the election tribunal. Be that as it may, with the introduction of amendments in section 95(5), the discretionary power of the Returning Officer to make .a decision about recounting of votes came to an end and the matter now falls to be decided on the formula given in the conditions attached to section 95(5).

1. The majority judgment in paragraph 19 distilled the reasons for qualifying the power to recount the votes prior to the commencement of the consolidation process. The purpose, according to the judgment, was

....to limit the number of frivolous applications for a recount made by losing candidates in constituencies around the country and to ensure that recounts are entertained by Returning Officers only in those constituencies where the margin of victory is small enough to justify a recount, and an objective and tentative assessment is made by the Returning Officers on the basis of material placed before them to the effect that prima facie there are grounds justifying a recount and the request for such recount is not wholly unreasonable.

1. The structure of subsections (5) and (6) indicates that the exercise of power by the Election Commission follows the decision by the Returning Officer in declining the application for recounting of votes or refusal to entertain it. It is equally apparent that the Election Commission in its decision on the application of an aggrieved candidate must prima facie respond to the conditions mentioned in subsection (5) before making the decision to refer the matter back to the Returning Officer for recounting the votes. The Act does not constitute in the Election Commission an appellate authority over the decisions of the Returning Officers and at best it can be said that the repository of power in the Election Commission under sub-section (6) loosely share the same characteristics as that of a revision (except for the suo motu power) to ensure that the Returning Officer acts within the bounds of his authority and that he follows the process prescribed by law.

2. It is of utmost importance to note that the Act has not granted any right of appeal against the decision of the Returning Officer for entertaining, rejecting or accepting the application for recounting of the ballots. Contrast this provision with section 125 of the Act which falls in Chapter VII of the Act relating to Conduct of Elections to the Senate. This provision explicitly creates the right of appeal for a contesting candidate who is aggrieved by any proceedings relating to the count of votes for laying a challenge before the Election Commission.

3. Taken as a whole, this limited, power for recounting of votes before the commencement or conclusion of consolidation proceedings is in accord with Article 225 of the Constitution in view of the exclusivity granted to the resolution of the election disputes through an election petition before the tribunal constituted under the Act. This basic position of law has been settled, reiterated and applied too often to be doubted. The provisions contained in subsections (5) and (6) demonstrate quite clearly that the exercise of recounting of ballots, if the conditions mentioned in subsection (5) of section 95 are satisfied, must take place prior to the commencement or conclusion, as the case may be, of the consolidation process. These provisions are to be read as expressing an intention that on the conclusion of consolidation proceedings the right of the candidate who secured the most votes stands crystallized to be notified by the Election Commission and his election can only be challenged through an election petition in terms of Article 225 of the Constitution read with section 139(1) of the Act. The finalization of the consolidation process operates as the termination point for exercise of any power for recounting of ballots. This rule is firmly rooted and inherent in the objectives of the Act.

4. After consolidation of results by the Returning Officer, he is bound to send to the Election Commission signed copies of the Consolidated Statement of the Results of the Count and Final Consolidated Result together with Results of the Count and the Ballot Paper Account within 24 hours. The Election Commission, by the terms of section 98 of the Act, is required to publish in the official Gazette the name of the successful candidate within a period of fourteen days from the date of the poll. The notification of the election result is merely a ministerial act for the reason that the notification automatically follows the result mentioned in the Final Consolidation Result contained in Form-49. From the time of conclusion of consolidation process till its notification in the official gazette the Election Commission has no power to interfere in the same.

5. The Election Commission being cognizant of the limitations on the power relating to recounting of ballots, on the First Application of respondent No.3, directed the Returning Officer on 11.02.2024 to entertain it only "....if consolidation has not been concluded already." The Returning Officer allegedly did not entertain the application of respondent No.3 and issued Form-47 and Form-49 on 11.02.2024 and with that the consolidation process stood concluded and finalized.

6. The Election Commission in entertaining the Second Application of respondent No.3 on 08.03.2024 duly noted that the consolidation process has been completed and yet without furnishing any plausible reason issued notices to the petitioner and directed the Returning Officer to submit a detailed report regarding order dated 11.02.2024.

7. Notwithstanding the scheme of the Act as noted above which grants finality to the counting of votes after consolidation of result (subject to the challenge made to the election before the election tribunal), learned counsel contends that the general power of review is reserved with the Election dommission against any order passed by an officer under the Act by the terms of subsection (b) of section 8 of the Act. It is also the case of respondent No.3 that the judgment of the Supreme Court relied upon by the petitioner relates to subsection (c) of section 8 and thus it is not applicable to his case.

8. The only question which remains is whether section 8(b) can be construed as bestowing on the Election Commission an overarching power to order for recounting of ballots even after finalization of the consolidation process and thereafter to set at naught the election result. The respondent's preferred construction on section 8 (b) of the Act confronts a number of legal hurdles. In the first place, the power to order for recounting of ballots either by the Returning Officer or by the Election Commission is itself circumscribed by the commencement or conclusion of the consolidation proceedings in terms of subsections (5) and (6) of the Act. The consolidation of election results, which in itself is a time bound exercise, puts an end to any proceedings initiated for recounting of votes and such proceedings if not eoncluded by the time consolidation process is commenced or finalized stand abated. Secondly, the recounting of ballots is dependent on fulfillment of the conditions enumerated in subsection (5). The power vesting in the Election Commission under Subsection (6) for issuing directions to the Returning Officer for recatinting of votes must adhere to the same conditions that bound the Returning Officer. Order dated 11.02.2024 by the Election Commission does not reflect that any notice was issued to be petitioner as is required by sub-section (6) of section 95 of the Act. This order also does not demonstrate whether the conditions in sub-section (5) of section 95 were satisfied or not. Thirdly and as alluded to in the earlier part of this judgment, the Act has granted to the Election Commission the power under subsection (6) of section 95 to revisit the decision of the Returning Officer which is analogous to revision in the narrow sense. Subsection (6) of section 95 being a specific provision, a candidate cannot make use of the general provision of review contained in section 8(b) of the Act. It is settled law that specific provisions enerally take precedence over general provisions of a statute subject to the rider that in making this determination the Court will consider the context in which the provisions appear and the intent of the legislature. Having said that, there is no apparent connection between section 8 and section. 95 for the reason that the latter provision specifically deals with the process for consolidation of results and within its framework grants a right for recounting of ballots prior to the conclusion of the consolidation of results. The opening of section 8 "Save as provided otherwise in the Act" makes it obvious that, irrespective of precisely how the scope of review under subsection (b) might be described, the particular subject matter of recounting of votes in terms of section 95 is not within its exclusive operation. Lastly, the legislature by not providing any appeal against the exercise of power of recounting of ballots has manifested its intention of granting finality to the decision of the Returning Officer subject to the decision of the Election Commission. The power of review in section 8(b) could hardly be interpreted as manifesting a legislative intent that that was meant to serve as an alternative to the appeal against the orders of the Returning Officer.

9. The foregoing may be sufficient for a conclusion that, properly construed, section 8(b) does not authorize the Election Commission to review the order of the Returning Officer in choosing to allow or refuse the recounting of ballots particularly when the consolidation process has been concluded and also when direct authority is available to the Election Commission under section 95 (6) of the Act.

10. This Court has the benefit of a full analysis by the Supreme Court in the case of Zulfiqar Ali Bhatti v. Election Commission of Pakistan and others 2024 SCMR 997 on the issue and the context that has a close similarity to the priesent case in regard to the Principles which should guide the Election Commission in dealing with Matters of similar nature. The focus of the reasons in judgment of the Supreme Court is the scope of sections 8 and 9 of the Act and Article 218(3) of the Constitution and the powers the Election Commission may exercise in relation to these provisions. It was said that the terms "election" and "conduct the elections" are expressed in a wide sense in Article 218 and 225 of the Constitution encompassing the entire election process consisting of several steps starting with the issuance of the election programe and culminating with the declaration of the returned candidate and all the steps in between these stages. Recourse to the general power under Article 218(3) of the Constitution, according to the Supreme Court, can only be made in case of any eventuality not covered by the Act and that too fairly, reasonably and judiciously in accordance with the .principles of equity, justice and good conscience and that these powers are exercised to supplement and not to supersede the specific provisions of the law. In the case of section 8 of the Act, it was stated that its opening words "Save as otherwise provided" were indicative of the legislative intention that the powers contained therein would not operate or intrude upon specific provisions dealing with a subject matter. In conclusion, it was held that the general powers under Article 218(3) and section 8(c) of the Act can be exercised only in respect of any stage of the election process but not after the completion thereof and also when there is no express provision in the law to deal with the matter or issue that arises during the performance of constitutional duty of the Election Commission of conducting the elections.

11. Although the Supreme Court was dealing with section 8(c) of the Act, but the principles stated in the judgment that section 8 and the general powers reserved to the Election Commission do not displace the specific provisions of the Act are fully applicable to the present case.

12. A learned Division Bench of this Court in ICA No.29 of 2024 titled Abdul Rehman Khan Kanju v. Rana Muhammad Faraz Noon etc has already held that after the consolidation process there does not vest any jurisdiction in the Election Commission to nullify the election result. The operative part of the judgment reads as follows:

Hence, we declare that assumption of jurisdiction, act of passing of original order and to withdraw the Notification dated 16.02.2024, issued to declare respondent No.1 as returned candidate and directing for publishing of his name, after conclusion of consolidation proceedings were without any lawful authority. No illegality is shown or pointed out in the impugned order, calling for indulgence as appellate court.

2024 M L D 1401

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Raja Munawar Ali---Petitioner

Versus

The Commissioner Lahore Division, Lahore and others-- Respondents

Writ Petition No. 73991 of 2023, heard on 31st January, 2024.

Lahore Development Authority Act (XXX of 1975)---

---- S. 14--- Allotment of Public Utility Sites of LDA Regulations, 2019, Regln. 2(h)---Public utility site--- Community center---Petitioner assailed allotment of land in question to respondent Lahore Waste Management Company for establishing its office--- Plea raised by petitioner was that the land was designated for community center--- Validity--- Site in question was not labeled as community center site at the time of approvalof plan of scheme, which required allotment through open auction within the contemplation of Regln. 5(v) of Punjab Utilities Sites of LDA Regulations, 2019--- Land in question was categorized as public building, within the purview of public office sites and public utility sites--- High Court declined to interfere in the matter as there was no illegality or procedural defect committed in the process of allotment--- Constitutional petition was dismissed, in circumstances.

Syed Mansoor Ali Shah and 4 others v. Government of Punjab, through Housing, Physical and Environmental Planning Department and 3 others PLD 2007 Lahore 403; Shahnawaz Mallah and 2 others v. Raza Muhammad Brohi and 8 others 2013 CLC 792; Haji Lal Muhammad v. Federation of Pakistan through Secretary, Ministry of Interior Division, Islamabad through Deputy Attorney General at Peshawar and 4 others PLD 2014 Peshawar 199; Barrister Waleed Khanzada v. Federation of Pakistan through Secretary Ministry of Defence and another 2014 CLC 903; Muhammad Aqil Asim and 2 others v. Cantonment Board Clifton through Chief Executive Officer 2018 MLD 440 and Mrs. Farkhanda Farouq and others v. Defence Housing Authority and others 2019 CLC 695 distinguished.

W.P. No. 14549 of 2009 and Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others PLD 2015 Supreme Court 6 ref.

Chaudhary Zulfiqar Ali for Petitioner.

Barrister Haris Azmat, Barrister Mariam Hayat and Barrister Hamza Amjad for Respondent-Lahore Development Authority (LDA).

Malik Muhammad Awais Khalid and Raja Munawar Ali for Respondent-Lahore Waste Management Company (LWMC).

Awais Ahmad Qazi, Additional Advocate General.

Date of hearing: 31st January, 2024.

Judgment