PLD 2001 Judgments

P L D 2001 Karachi 1

Before Saiyed Saeed Ashhad, C J

AFTAB and another‑‑‑Applicants

versus

Mrs. RAZIA KAZI through Legal Heirs and others‑‑‑Respondents

Civil Revision No. 173 and Civil Miscellaneous Applications Nos. 1390 of 1998 and 221 of 2000, decided on 19th June, 2000.

(a) Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S. 7‑‑‑Court‑fee, determination of‑‑‑Factors to be taken into consideration‑‑‑Allegations made by defendant‑‑‑Effect‑‑‑For the purpose of determination of court‑fee and the question whether the suit was properly valued or not, provisions of S.7 of Court Fees Act, 1870, could be referred to which provided that the Court must confine itself to the plaint and was not required to look into the circumstances which could subsequently influence its judgment as the true value of the relief sought‑‑‑In order to decide the question of court‑fee in a particular suit the Court had to take into consideration the allegations made and the payers sought in the plaint and to assume the allegations to be correct‑‑‑Allegations made by defendant in written statement or by means of a counter‑affidavit or by any other document were not to be considered and the same were immaterial for determining the category/nature of the suit for the purpose of payment of court‑fee‑‑‑Payment of court‑fee was to be looked at with reference to facts at the time of institution of the suit and events subsequent to the institution of the suit could not be taken into consideration for the purpose of valuation of the suit for the payment of court‑fee.

(b) Court Fees Act (VII of 1870)‑‑‑

S. 7‑‑‑Suit, valuation of‑‑‑Interference by Court in valuation of court‑fee made by plaintiff‑‑‑Powers of Court‑‑‑Scope‑‑‑Plaintiff has been authorised by S‑7 of Court Fees Act, 1870 to value the suit and pay court‑fee thereon as framed by him and the same is not open to the Court to object that the suit has not been properly framed‑‑‑Where the plaintiff had arbitrarily or without any plausible basis fixed the valuation of suit which was not acceptable in any manner or if the valuation given by plaintiff was fictitious or the plaintiff had undervalued or overvalued the suit with mala fide motives, the Court had power to interfere.

(c) Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S. 7‑‑‑Valuation of suit‑‑‑Jurisdiction of Trial Court to proceed with the suit‑‑‑Objection to‑‑‑Scope‑‑‑Material date for such valuation‑‑‑Objection raised by the defendant was that the plaintiff had undervalued the suit as the subject‑matter of the suit was in excess of Rs.5 lacs and the Trial Court had no jurisdiction to proceed‑‑‑Validity‑‑‑For the purpose of valuation of the suit and payment of court‑fees, the material date for the valuation under S.7 of Court Fees Act, 1870, was the date of institution of the suit‑‑‑Value of the subject‑matter of the suit at the time of institution was not .in excess of Rs.five lacs and the Trial Court had jurisdiction to proceed with the matter‑‑­Objection raised by defendant was overruled.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent jurisdiction of High Court as well as of District Court‑‑‑Effect‑‑‑Where concurrent jurisdiction .is conferred on two different Courts then the subordinate or lower Court to be approached in exercise of such concurrent jurisdiction.

Sindh Employees' Social Security Institution v. Habib Sugar Mills Limited PLD 1993 Kar. 61 and Karachi Building Control Authority v. Muhammad Arif Qureshi 1992 CLC 1904 ref.

Abdullah Chandio for Applicant.

Nazar Akbar for Respondent No. 1.

Date of hearing: 18th May, 2000.

P L D 2001 Karachi 5

Before Zahid Kurban Alavi, J

NOVA LEATHERS (PRIVATE) LIMITED, I.I. CHUNDRIGAR ROAD, KARACHI and another‑‑‑Petitioners

versus

THE REGISTRAR, JOINT STOCK COMPANIES, I.I. CHUNDRIGAR ROAD, KARACHI‑‑‑Respondent

Judicial Miscellaneous Application No.6 of 2000, decided on 2nd September, 2000.

Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 284 & 287‑‑‑Amalgamation and merger of companies ‑‑‑Object‑‑­Economy of scales, achieving of‑‑‑Companies were doing the same business and were being controlled and managed by common management‑‑Interest of shareholders and directors was common and it was not necessary to maintain two separate and distinctive registered offices‑‑‑Object of merger was to achieve the economy of scales and to carry on the business more economically and efficiently and to cut unnecessary administrative costs‑‑­Directors of both the companies had no objection to the merger/amalgamation‑‑‑Petition was allowed accordingly.

Muhammad Aqil for Petitioners.

Date of hearing: 2th September, 2000.

P L D 2001 Karachi 6

Before Abdul Ghani Shaikh, J

SHAHZAD AHMED and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1267 of 1999, decided on 6th March, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.392/324/353/34‑‑‑Bail, gralt'of‑‑­Despite the detention of accused in jail for the last eleven months challan against them had not so far been submitted in the Court by the Investigating Officer who was bound to submit the report under S.173, Cr.P.C. within seventeen days after the registration of the F.I.R.‑‑‑Prosecution was unable to explain such delay‑‑‑Accused in the circumstances were entitled to the grant of bail and they were released on bail accordingly.

Saathi M. Ishaque for Applicants.

Dilawar Hussain for the State.

P L D 2001 Karachi 8

Before Muhammad Roshan Essani, J

HAZOOR BAKHSH‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.62 and Miscellaneous Applications Nos. 1503 and 1504 of 2000, decided on 15th September, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 439 & 514‑‑‑Penal Code (XLV of 1860), S.324/392/34‑‑‑Forfeiture of surety ‑bond‑‑‑Accused having remained absent before Trial Court on date of hearing, his bail bond was forfeited and notice was issued to the surety--‑­Explanation furnished by surety was not considered to be satisfactory' and heavy penalty was imposed upon surety by Trial Court‑‑‑Accused, who voluntarily appeared before Court only after three days, had produced 'medical certificate about his serious illness‑‑‑Said certificate had shown that during period of absence, accused had suffered from disease of liver abscess and that he was treated as indoor patient‑‑‑Accused had no intention to abscond, but he remained absent due to unavoidable circumstances which were beyond his control‑‑‑Order imposing penalty upon surety was set aside in circumstances.

Wali Dino Narejo for Applicant.

Zawar Hussain Jafferi, Addl. A.‑G. for the State.

P L D 2001 Karachi 10

Before Muhammad Ashraf Leghari, J

MUHAMMAD AMJAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.49 of 1999, decided on 6th April, 2000.

Penal. Code (XLV of 1860)‑‑‑

‑‑‑‑S. 451‑‑‑Appreciation of evidence‑‑‑Prosecution story itself seemed to be improbable‑‑‑Accused was caught at the spot and all correspondence had been made by the police before lodging the F.I.R. keys allegedly recovered from the possession of the accused had not been produced in the Court‑‑­Statement of accused recorded under S.342, Cr.P.C. was not considered by the Trial Court which appeared to be snore probable than the prosecution version‑‑‑Accused was acquitted in circumstances.

Mst. Ameer Khatun v. Faiz Ahmed PLD 1991 SC 787; Mst. Muhammadia v. Zari Bacha and another PLD 1982 Pesh. 85 and Nazar Ali and another v. The State PLD 1992 Kar. 140 ref.

Mehmood Akhtar Qureshi for Appellant.

State Counsel for the State.

Date of hearing: 6th April, 2000.

P L D 2001 Karachi 14

Before Muhammad Roshan Essani, J.

AKHTIAR ALI ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Transfer Application No.22 of 2000, decided on 1st September, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 526‑‑‑Penal Code (XLV of 1860), Ss.220/147/148/34‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Application for transfer of case‑‑‑Applicant/complainant had alleged that accused, who was serving as Inspector in Excise Department, was found sitting in Chamber of Trial Judge‑‑‑Applicant had apprehended that Trial Judge had been won over by accused party and had received illegal gratification for release of accused‑‑‑Trial Judge in his comments, though had denied allegations levelled against him, but had stated that since complainant had lost confidence in him, the case could be withdrawn from his file and same could be transferred to some other Court‑‑­Applicant/complainant had lost faith in Trial Court and allegation levelled against Trial Judge had not been controverted by accused by way of counter­-affidavit or comments‑‑‑Case was ordered to be transferred to another Court in view of reasonable apprehension in mind of applicant/complainant that he would not get fair or impartial trial/justice.

Muhammad Nawaz v. Ghulam Kadir, and 3 others PLD 1973 SC 327; Serjeant v. Dale (1877) 2 QBD 558 and Muhammad Arshad v. The State 1997 SCMR 949 ref.

Sahib Khan Kanasiro for Applicant .

Sher Muhammad Shar, A.A.‑G. for the State.

Mumtaz Ali Siddiqui for Respondents Nos.2 to 6.

P L D 2001 Karachi 17

Before Muhammad Roshan Essani, J

ROSHAN---Appellant

versus

THE STATE---Respondent

Criminal Jail Appeal No.49 of 1988 arid Miscellaneous Applications Nos. 1366 and 869 of 2000, decided on 7th September, 2000.

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

----S. 514---Death of surety---Effect---Accused released on bail had failed to appear before Court and person who stood surety of accused had died---Son of surety had filed application for discharge of surety contending that after death of his father who stood surety for accused, surety of his father would automatically be discharged and that no action could be taken against deceased surety under law---Validity---Contention of applicant was misconceived as grant of bail to accused and his release on furnishing surety was nothing, but change of custody and accused was. placed in the hands of surety after release from judicial custody---Wisdom behind introducing S.514, Cr.P.C. by Legislature was that in cash accused absconded then penalty imposed upon surety could be recovered from his property and it was a joint liability of person who stood surety and the property---By death of surety the amount of penalty was to be recovered by Court out of property for which bond was extended by deceased prior to his death before the Court.

Abdul Manan and another v. The State 1999 PCr.LJ 1031 and Abdul Bari v. Malik Amir Jan and 4 others PLD 1998 SC 50 ref.

(b) Discretion---

Discretionary orders---Interference by superior Courts ---Scope--­Discretionary orders passed by lower Courts or Tribunals cannot be interfered by superior Court in routine unless it is shown that discretion has been exercised by the Court below arbitrarily or perversely.

Abdul Bari v. Malik Amir Jan and 4 others PLD 1998 SC 50 ref.

Shaikh Amanullah for Appellant.

Mumtaz Ali Siddiqui and Saleem Akhtar Buriro for Applicant (Khalid Mujtaba).

S. Zawar Hussain Jafferi, Addl. A.-G. for the State.

P L D 2001 Karachi 20

Before S. Ahmed Sarwana, J

MUHAMMAD DAWOOD KHAN---Decree-Holder

Versus

ELYAS AMEEN and others---Judgment-Debtors

Execution Application No.87 of 2000, decided on 7th September, 2000.

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

----Ss. 181 & 182---Filing of false statement and affidavit in Court--­Effect---Where on the basis of the filing of such false documents the Court had passed orders, maker of such statements and affidavit had committed offences under Ss.181 & 182, P.P.C. which were punishable with imprisonment.

(b) Rules of Professional Conduct and Etiquette of Pakistan Bar Council---

---- Penal Code (XLV of 1860), 5.181---Counsel endorsing his identification on a patently false statement filed by a party---Such counsel had not only violated the Injunctions of the Holy Qur'an and attracted the provisions of. 5.181, P.P.C., but also the Rules of Professional Conduct and Etiquette of Pakistan Bar Council---High Court expressed its grave concern over the matter and observed that if such acts were overlooked by the Courts, the satire would amount to encouraging people to violate the law without fear--­Such conduct ought not to be overlooked or excused as the same would obstruct the administration of justice and induce people to take the law in their own hands thereby creating serious law and order situation and choas in the society---High Court directed to take strict action against all such persons who violated the law of land and interfered in the administration of justice so that in future such acts were not repeated by any one.

Al-Qur'an: Surah Al-Baqarah II, Ayat 283; Surah An-Nisa IV, Ayat 135; Halsbury's Laws of England, 4th Edn., Vol. 3(1), para. 415; Meek v. Fleming (1961) 2 QB 36 and Muhammad Sadiq and others v. Ruqayia Khannum and others C. P. No. D-214 of 1999 ref.

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

----Ss. 186 & 441---Obstructing public servant in discharge of his official duty---Criminal trespass---Entering property forcibly in possession of joint liquidators through Chowkidars appointed by Official Assignee---Accused alongwith other four to five persons by use of force, entered the property, broke the wall and fixed a door therein---Effect---Where the accused persons had obstructed public servant in discharge of his duty to keep the property secured from encroachers and trespassers, the accused persons had committed the offence under 5.186, P.P.C. and also criminal trespass punishable under S.441, P.P.C.

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

----0. XXIII, R.3---Execution of decree---Compromise decree---Making false statement in Court---Suit property was subject-matter of already pending proceedings in another Court---Both the decree-holder and the judgment-debtor proceeded to execute the decree with undue haste and by making false statement---Effect---Such undue haste and knowingly making false statement had cast doubt on the compromise decree---High Court had directed to place copy of the order on the other file so that the matter might decided with full knowledge of all the relevant facts---Petition w3" disposed of accordingly.

Raja M. Irshad forthe Decree-Holder.

Bashir A. Memon for the Official Assignee

Dates of hearing: 26th May and 14th June, 2000.

P L D 2001 Karachi 30

Before S. Ahmed Sarwana, J

PAK SHAHEEN CONTAINERS SERVICES (PVT.) LTD. ---Plaintiff

versus

TRUSTEES OF PORT OP KARACHI and others---Defendants

Suit No.773 of 2000, decided on 17th July, 2000.

(a) Constitution of Pakistan (1973)---

----Preamble read with Arts. 98 & 138---Adminsitrative organ of the State--­Functions enumerated.

The duties of the administrative organ of the State and its functionaries may be summarised as follows:--

(i) It is the duty of the State which includes a Department of the Government or a Statutory Corporation to act fairly even while performing an administrative function.

(ii) The functionary must not act in the unfair, arbitrary or in discriminatory manner while awarding contract to one party or the other.

(iii) In a civilized country and specially in a democratic society a public functionary cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.

(iv) The discretionary power of the Government/Department in the matter of grant of jobs, contracts, quotas, licences etc. must be based upon rational, relevant, reasonable and non-discriminatory standards and norms.

(v) In case the Government/Department/Statutory Body acts arbitrarily, discriminately, with malice or in an unfair and unreasonable manner, the superior Courts would have the power to interfere, strike down the action and rectify the impropriety unless it is established that the departure from the standard or norm was not arbitrary but was based upon valid reasons acceptable in and by civilized democratic societies.

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

----S. 56(d)---Civil Procedure Code (V of 1908), O.VII, R.11---Rejection of plaint---Auction proceedings---Bar under S.56(d) of Specific Relief Act, 1877---Plaintiff alleged that the defendant-Authorities had not acted fairly and had rejected their offer as the same was the highest and had issued letter of intent to another company whose bid was lower than that of plaintiff--­Validity---If the allegations were correct, the plaintiff was justified in filing the suit and seeking relief from Court of law.

(c) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Judicial review---Administrative acts are subject to judicial review.

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

----S. 3---Term "obligation"---Connotation---Term "obligation" under the provision of S.3 of Specific Relief Act, 1877, includes every duty enforceable by law---Word "obligation" used in S.54 of the Specific Relief Act, 1877 refers to a legal obligation and not merely moral, social and religious one.

(e) Words and phrases---

Law is that which is enforced by law Courts.

Saeedullah Kazim v. Government of Pakistan PLD 1981 SC 42 ref.

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

.

----Ss. 54 & 55---Injunction, grant of---Provisions of Ss.54 & 55 of Specific Relief Act, 1877, not confined to obligations arising under a contract only--­Duty of a person to another or to the public at large or the duty of a Department of the Government or a statutory body to the public at large is also not excluded from the provisions of Ss.54 & 55 of Specific Relief Act, (g) Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss.54 & 55--­Interim injunction, grant of---Discriminatory conduct of Government functionaries---Auction proceeding---Bid of the plaintiff was highest but the letter of intent was issued to another company having offer lower than that of the plaintiff's---Such action of the Authorities was assailed in a civil suit--­Validity---Every State functionary/Department was bound to act fairly, impartially and without discrimination---Person who was adversely affected by the unfair, impartial, unreasonable and discriminatory conduct would have the right to invoke the jurisdiction of High Court for relief including that of mandatory and temporary injunction and the Court would be justified in granting the same---Where the Court was satisfied that the Government functionary, Department or, a Statutory Corporation had acted unfairly, arbitrarily, unreasonably, discriminately, capriciously, partially or maliciously in any manner, interim injunction was granted.

AIR 1921 Cal. 129 and PLJ 1984 Quetta 95 distinguished.

Alavi Sons Ltd. v. Government of East Pakistan and others PLD 1968 Kar. 222; Arif Builders and Developers v. Government of Pakistan PLD 1997 Kar. 627; Zohra and 5 others v. Government of Sindh PLD 1996 Kar. 1; Shoukat Ali and others v. Government of Pakistan PLD 1997 SC 342 acid Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police PLD 1992 Kar. 283 ref.

Mansoor Ahmed Shaikh for Plaintiff.

Salman Hamid for Defendants.

Dates of hearing: 12th and 13th July, 2000.

P L D 2001 Karachi 41

Before Ghulam Rabbani, J

Messrs LATIF BROTHERS through Proprietor---Appellant

versus

Mst. RASHEEDA---Respondent

First Rent Appeal No.44 of 1998, decided on 25th April, 2000.

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

----Ss. 2(f) & 15---Ejectment application---Locus standi to file---Right to file ejectment application by the owner of the premises---Rent was used to be collected by the husband of the owner of the premises but the application was filed by her---Validity---Name of the owner lady was proved by certified copy of extract from city survey record---Existence and authenticity of the documents having not been challenged for the purpose of said case lady was the owner of the premises---Person whether he was owner or entitled or authorised to receive rent was competent to file ejectment application irrespective of the fact whether the agreement of tenancy was with the owner or his attorney or such person who was authorised or entitled to receive rent---Lady, by virtue of being owner was "landlady" as per definition of "landlord" provided by S.2(f) of Sindh Rented Premises Ordinance, 1979--­Ejectment application, filed by the lady owner of the premises was maintainable in circumstances.

Muhammad Abdul Aleem v. Sayed Wajahat Ali 1988 MLD 1942 rel.

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

----S. 15---Ejectment of tenant---Default in payment of monthly rent---Onus to prove---Witnesses produced by the tenant mace conflicting statements before the Rent Controller---Rent Controller allowed the ejectment application as there were somersaults in the evidence of the tenant--­Validity---Tenant having denied the default, concrete evidence was required to prove the payment of disputed rent---Tenant examined his son and nephew as witnesses---Such witnesses could not be termed to be independent ones--­Concrete evidence being extinct in the case, High Court declined interference in appeal.

Haji Fakir Muhammad v. Hazaratullah 1989 CLC 252; Bahadur Ali v. Raja Fazal Hussain 1990 CLC 1529 and Syed Anwer Ali Shah v. Syed Habib Hussain 1991 MLD 945 distinguished.

1996 MLD 1141; 1986 SCMR 751; 1988 MLD 1942; 1992 SCMR 871; PLD 1996 Kar. 526; 1997 CLC 623; 1998 CLC 529; Jabar Ahmed v. Abida Ismail 1987 MLD 114; Abdul Rauf Khan v. Syed Abdul Hassan Naqvi 1990 ALD 226 and Raj Muhammad and 11 others v. Haji Muhammad Zareen and 3 others 1980 SCMR 339 ref.

Ejaz Ali Hakru for Appellant.

Noor Nabi Memon for Respondent.

Date of hearing: 3rd February, 2000.

P L D 2001 Karachi 48

Before Ghulam Nabi Soomro and S.A. Rabbani, JJ

MUHAMMAD AKRAM and 10 others---Petitioners

versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.D-1235 of 2000, decided on 25th September, 2000.

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

----(. 12---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Freezing of immovable property---Properties owned by the petitioners were freezed by the Accountability Bureau in exercise of powers under S.12 of National Accountability Bureau Ordinance, 1999---Validity--­Order of the Bureau ceased to have effect after lapse of 30 days as the same had not been confirmed under S.12 of National Accountability Bureau Ordinance, 1999.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition ---Scope---Benami ownership---Such ownership cannot be decided in exercise of Constitutional jurisdiction.

Abid S. Zuberi and Gohar Iqbal for Petitioners.

Muhammad Anwar Tariq, S. Zaki Muhammad, D.A.-G., Suleman Habib, Addl. A.-G. and Muhammad Aslam Bhatti for Respondents.

Date of hearing: 20th September, 2000.

P L D 2001 Karachi 52

Before Saiyed Saeed Ashhad, C. J. and Zahid Kurban Alavi, J

ZIAUDDIN HOSPITAL TRUST through Trustee and Medical Director---Petitioner

versus

DIRECTOR-GENERAL/COMMISSIONER, EXCISE AND TAXATION, SINDH, KARACHI and another---Respondents

Constitutional Petition No. 187 of 1987, heard on 10th February, 2000.

Per Zahid Kurban Alavi, J.--

(a) West Pakistan Urban Immovable Property Tax Act (V of 1958)-

----S. 4---Mussalman Waqf Validating Act (VI of 1913), S.3---Trust---Public or private trust---Distinction---Exemptions under the provisions of S.4 of West Pakistan Urban Immovable Property Tax Act, 1958 and the Mussalman Waqf Validating Act, 1913 do not afford any bar or explanation to categories of trusts.

(b) West Pakistan Urban Immovable Property Tax Act (V of 1958)--

----S. 4---Exemption---Term "public purpose", meaning of---If a property is used for a valid public object then the mere fact that a fee is charged for such user will not render the user non-public or convert the same into a mere profit making venture.

(c) Locus poenitentiae, principle of--

---- Once a right is created in favour of a litigant, such right in due course of time cannot at all be taken back arbitrarily.

(d) West Pakistan Urban Immovable Property Tax Act (V of 1958)---

----S. 4(f)(1)---Exemption---For seeking the exemption from payment of urban immovable property tax under S.4(f)(1) of the Act the rent must be exclusively applied to religious or specified charitable purposes.

(e) West Pakistan Urban Immovable Property Tax Act (V of 1958)---

----S. 4(f)---Exemption---Exemption from payment of urban immovable property tax was also extended to the retired Government employees of Federal Government by treating them at par with that of Provincial (Punjab) Government.

(f) West Pakistan Urban Immovable Property Tax Act (V of 1958)---

---S. 4---Constitution of Pakistan (1973), Arts. 4, 8 & 25---Grant of exemption from payment of property tax---Discrimination---Exemption from payment of property tax was granted to one trust hospital but was refused to another trust hospital---Validity---If altogether different criterion was adopted by the Authorities while refusing exemptions, such act of the Authorities was not only discriminatory and inequitable but was also mala fide and violative of Arts.4, 8 & 25 of the Constitution.

(g) West Pakistan Urban Immovable Property Tax Act (V of 1958)---

----S. 4(f)---West Pakistan Urban Immovable Property Tax Rules, 1958, R.24---Sindh Finance Act (XV of 1996), S.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Trust hospital---Exemption from property tax---Words "hospitals, dispensaries" were omitted from SA(f) of West Pakistan Immovable Property Tax Act, 1958 by virtue of S.4 of Sindh Finance Act, 1996---Trust hospital was earlier afforded exemption from property tax but exemption was subsequently withdrawn by the Authorities for the reason that the hospital was not a "charitable trust "---Validity--­Omission of words "hospital, dispensaries" from the statute had not changed the complexion inasmuch as the rules framed thereunder---Irrespective of the omission in Sindh Finance Act, 1996, the provisions of SA(f) of West Pakistan Urban Immovable Property Tax Act, 1958 still applied to the trust hospital inasmuch as hospital was a public charitable institution and was entitled to exemption under R.24 of West Pakistan Urban Immovable Property Tax Rules, 1958---Where prescribed charitable institutions had not been omitted from the Rules, the same reflected that the intention of Legislature to exempt such institutions was always there---Case of the hospital was to be dealt with in accordance with the statute as the same stood unamended on the day when the Constitutional petition was filed---Hospital was entitled to exemption from property tax in circumstances.

Pakistan v. Province of Punjab PLD 1975 SC 37; AIR 1914 PC 20; 1997 SCMR 15; Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973; Pakistan v. Muhammad Himayatullah Farukh PLD 1969 SC 407; Dawood Foundation v. Excise and Taxation, Sindh, Karachi and another PLD 1977 Kar. 120; Don Basco High School v. The Assistant Director, E.D.B.I. PLD 1989 SC 128 and Shoukat Ali Qureshi v. Province of Punjab 1998 CLC 1997 ref.

Per Saiyed Saeed Ashhad, C.J.--

(h) Interpretation of statutes--

---- Statute inconsistent with Rules---Where there was inconsistency in the provisions of a statute and the rules made thereunder, the provisions of the statute would have precedence and would be given effect to over and above the Rules, if it was impossible to reconcile the inconsistency and the conflict in the statute and the rules.

(i) West Pakistan Urban Immovable Property Tax Act (V of 1958)---

----S. 4(t) [as amended by Sindh Finance Act (XV of 1996), S.4]---West Pakistan Urban Immovable Property Tax Rules, 1958, R.24---Exemption from property tax---Vide amendment in S.4(f) of West Pakistan Urban Immovable Property Tax Act, 1958 hospitals and dispensaries were excluded from such exemption but no corresponding amendment was made in R.24 of West Pakistan Urban Immovable Property Tax Rules, 1958---Effect---No exemption to the excluded institution could be granted till the time the rule was modified and brought in consonance with the amendment in SA(t) of West Pakistan Urban Immovable Property Tax Act, 1958---Failure to exclude the institutions from exemption would render the amendment nugatory and surplus as such the same was not permissible by any canon or principle of interpretation of statutes---Petition was accepted on the basis of statute as it stood amended on the day when petition was filed.

Amir Hani Muslim, Faisal Kamal and Abdul Samad Khan for Petitioners.

Ainuddin Khan, A.A.-G. for Respondents.

Date of hearing: 10th February, 2000.

P L D 2001 Karachi 60

Before S. Ahmed Sarwana and Ghulam Nabi Soomro, JJ

MUHAMMAD SADDIQ and another----Petitioners

versus

Mst. RUQAYA KHANUM and others----Respondents

Constitutional Petition No.D-214 of 1999, heard on 23rd December, 1999.

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

-----S.20---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.16---Civil Procedure Code (V of 1908), Preamble---Applicability of provisions of Civil Procedure Code, 1908---Procedure to be followed by Rent Controller---Scope---Rent Controller is at liberty to follow the provisions of C.P.C. to conduct the Court proceedings and exercise his powers as a Rent Controller in the light of the principles enshrined in and deduced from the provisions of C.P.C. to conduct the rent proceedings which are of civil nature so that the dispute between the parties may be resolved smoothly and expeditiously---Powers of Rent Controller as quasi?judicial officer are not confined to use the provisions of C.P.C. only to summon and enforce the attendance of any person and examine him on oath, compel production or discovery of documents, inspect the site and issue commission for examination of witnesses or documents---Rent Controller has wide discretion to follow any reasonable procedure he deems appropriate in the circumstances of the case to achieve the ends of justice which includes the use of the provisions of C.P.C. as the same is a tested and tried procedure followed in civil proceedings.

Noor Elahi v. The State PLD 1966 SC 708; Ayub Khan v. Fazal Hay PLD 1976 SC 422; Sint: Vidaya and others v. Moorajmal 1980 SCMR 267 arid Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33 ref.

(b) Sindh Regulations (IV of 1827)----

-----Preamble & Regln. 26---Where no law and procedure has been prescribed by statuic. the Courts in Province of Sindh can follow the precedents of Sindh Chief Court, the High Court of Sindh and the judgments of Supreme Court which are binding on all Courts of Pakistan.

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

----Preamble---Correction of error---Powers of Rent Controller---Rent Controller has the power to amend or correct any error that may have occurred in his order, specially if the same involves correction of inadvertent clerical or typographical mistake.

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

-----S.22---Civil Procedure Code (V of 1908), S.153---West Pakistan General Clauses Act (VI of 1956), S.20---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Execution proceedings---Correction of clerical mistake---Jurisdiction of Rent Controller---Landlords in their execution application due to inadvertent clerical mistake mentioned wrong date of order as 29-3-1971 instead of 31-5-1980---Rent Controller in exercise of jurisdiction under S.153, C.P.C. allowed the correction of date---Plea raised by the tenant was that the provisions of C.P.C. were not applicable--?Validity---Rent Controller had wide discretion for conducting the proceedings before him and could resort to either the principles of C.P.C. or apply the principles of justice, equity and good conscience described in Sindh Regulations (IV of 1827) or exercise his powers under S.20 of West Pakistan General Clauses Act, 1956, for allowing application for amendment of the execution application in the case---Mentioning of wrong-provision of law in an application tiled in the Court would not normally render the same invalid---No irregularity or illegality in exercise of jurisdiction having been committed by the Rent Controller---Constitutional petition against order of Rent Controller was dismissed.

Haji Abdullah Khan and others v. Nisar Muhammad Khan PLD 1965 SC 691; Prince Ghulam Muhammad Khan v. Settlement and Rehabilitation Commissioner 1972 SCMR 359; Mst. Baigan v. Abdul Hakeem and another 1982 SCMR 673; Bashir Khan v. District Magistrate PLD 1956 Lah. 892 and Firdous Spinning and Weaving Mills Limited and others v. Federation of Pakistan and others PLD 1984 Kar. 522 ref.

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

----O. I, R.9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Necessary party to the proceedings---Neither any allegation was made against the. Provincial Government nor any relief was sought---Effect---Provincial Government was not a necessary party---Where the petitioner had impleaded the Government to overcome any objection that might be raised by the office on the maintainability of the Constitutional petition, such act of the petitioner was prima facie, mala tide and the same was deprecated.

(f) Constitution of Pakistan (1973)----

----Art.2A---Objectives Resolution, substantive part of the Constitution--?Effect---After insertion of Art.2A of the Constitution, the Injunctions of Islam as contained in the Holy Qur'an and the Sunnah of the Holy Propltpt (p.b.u.h.) have become the real, effective and positive law of Pakistan.

Zaheeruddin v. The State 1993 SCMR 1718; AI-Qur'an: Surah AI?Maida v. Ayat 8; Surah Al-Nahi XVI, Ayat 90; Surah Al-Nisa IV, Ayaat 58, 105; Surah Al-Maida V, Ayat 42 and Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

(g) Administration of justice---

Presentation of true facts before the Court---For proper administration of justice it is necessary that the parties, who have knowledge of the facts, present the same in their true form before the Court and not conceal them.

(h) Islamic Jurisprudence---

----Administration of justice---Islam has forbidden the Muslims from withholding or concealing evidence relating to the issue to be decided by an arbiter.

Al-Qur'an: Surah AI-Baqr II, Ayaat 282, 283; Sura Al-Nisa IV, Ayat 135; Shukur Din v. Inamullah PLD 1992 SC 67 and Muhammad Yaseen Khan and others v. Government of Azad Jammu and Kashmir 1991 MLD 2295 ref.

?(i) Islamic Jurisprudence---

---- Institution of Vakils/Advocates/Attorneys/Agents in Islam ---Scope--?-Islam does not forbid advocacy on behalf of a person if that person is not deceiving, acting dishonestly or betraying the trust of another---Institution of Vakils (Advocates) and advocacy is neither forbidden as such by Shariah nor the same is discouraged by Muslim Scholars as the institution helps and assists the aggrieved persons to obtain their lawful rights through the Courts---In an Islamic State it is the duty of the expert or the person knowledgeable in law not to conceal but to place the correct law before the deciding Authority.

Al-Qur'an: Surah Al-Nisa IV, Ayat 105; Surah Al-Maidah 5, Ayaat 42, 43; Kitab Badaae As-Sanaae, Vol. 8, p. 22; Moeed Al-Na'am Wa Mubayed Al-Naqm by Qazi Tajuddin Abu Nasar Abdul Wahab Alsubki and Judicial System of Islam, Chap. 7 ref:

(j) Legal practitioner---

---- Duties of a lawyer with reference to American system.

(k) Precedent---

----Citation of adverse authority---Role of a lawyer as an officer of the Court discussed.

(1) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Chap. XII---Canons of Professional Conduct and---Etiquette of Advocates---Adverse authority, placing before Court---Failure to fully disclose the relevant facts and law---Effect---Advocate is bound to place before the Court any adverse authority especially if the same has not been cited by the opposing counsel, so that all the relevant law is before the Court to enable it to do justice in accordance with law and the injunctions enunciated in the Holy Qur'an---Failure to fully disclose the relevant facts and law often leads to lengthy litigation resulting in waste of time and money of the parties as well as the precious time and financial costs of the Court which can be utilized frutifully for better and quicker administration of justice---High Court deprecated the conduct of such advocates and observed that such act should not only be discouraged but should be subject to exemplary penalty in patently vexatious cases.

(m) Legal practitioner---

----- Status and duties of advocates in Islamic Society.

(n) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Chap.XII---Canons of professional conduct and etiquette of advocates--?High Court desired that an oath be prescribed for the lawyer containing essential features of such oath.

(o) Legal practitioner---

----Misconduct---Imposition of costs---Conduct of counsel not in accordance with the Injunctions of Islam or even the standards expected of an Advocate as an officer of the Court---Such conduct called for the counsel being burdened with an exemplary and punitive costs---Case of misconduct being the first of its kind, costs were not imposed by the High Court but High Court observed that costs be imposed in fiture in similar circumstances.

Illahi Bux Kehar for Petitioners

Date of hearing: 23rd December, 1999.

JUDGMENT

S. AHMED SARWANA, J. ---Abdul Wahid the owner of a House bearing C.S. No.920-925, Ward D Ratodero filed an ejectment application (Rent Application No.27 of 1969) in the Court of Civil Judge and Rent Controller, Ratodero, against Ali Muhammad which was allowed by order, dated 29-3-1971. Ali Muhammad filed an appeal before the District Judge, Larkana, who dismissed the same by order, dated 2-2-1972. Thereafter, Ali Muhammad filed a Second Appeal in the High Court (2nd Appeal No.129 of 1972) which was allowed by Judgment, dated 21-1-1979 whereby the orders of both the Rent Controller and the District Judge were set aside and the case was remanded to the Rent Controller for a fresh decision. After promulgation of Sindh Rented Premises Ordinance, 1979 ("SRPO") the case was transferred to the Second Senior Civil Judge and Rent Controller, Larkana who allowed the application by his order, dated 31-5-1980. Ali Muhammad filed an appeal against the said order but it was dismissed for non-prosecution. Thereafter, on or about 17-5-1983 Abdul Wahid filed Execution Application No. 1 of 1983 for execution of order, dated 29-3-1971. Both Abdul Wahid and Ali Muhammad died during the course of litigation and these proceedings are now being contested by their legal heirs. The learned Rent Controller issued a Warrant of Possession whereupon the heirs of Abdul Wahid on 21-12-1998 filed objections to the Execution Application which, inter alia, included the ground that the order sought to be executed was not in existence as the Decree-Holder had typed the wrong date of the order sought to be enforced. In response, Respondents Nos.2 to 9, the heirs of Abdul Wahid filed an application under section 153, C.P.C. for correction in the date of the order in the Execution Application from 29-3-1971 to 31-5-1980 on the ground that the error had occurred due to inadvertent clerical mistake. The petitioner opposed the application agitating that the application of the provisions of section 153, C.P.C. in rent proceedings were prohibited under section 20, S.R.P.O., 1979. However, the learned Rent Controller by his order, dated 9-10-1999 rejected the objection and allowed the correction in the Execution Application.

1. Being aggrieved by the Rent Controller's Order, dated 9-10-1999 allowing correction in the Execution Application the petitioners have filed the present Constitutional Petition against the respondents impleading the Rent Controller as well as the Province of Sindh through Secretary, Law Department. The ground taken by the learned counsel is that section 20 of the Sindh Rented Premises Ordinance, 1979 expressly prohibited the application of Civil Procedure Code to the proceedings before the Rent Controller except for summoning and enforcing the attendance of witnesses, compelling production or discovery of documents, inspecting the site and issuing commission for examination of witnesses or documents. Section 20 of S.R.P.O. reads as follows:-‑

"20(1) Subject to this Ordinance, the Controller and the appellate authority shall, for the purpose of any case under this Ordinance, have power of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of only the matters namely;

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) compelling production or discovery of documents;

(c) inspecting the site; and

(d) issuing commission for examination of witnesses or documents."

He vehemently argued that the application under section 153, C.P.C. filed by Respondents Nos.2 to 9 for correction of the date and the order passed thereon by the Rent Controller was in violation of section 20 of the Sindh Rented Premises Ordinance, 1979 and was thus, without lawful authority and liable to be struck down. He submitted that the petitioners had filed the present petition because they did not have any alternate remedy to challenge the impugned order. He referred to Noor Elahi v. The State PLD 1966 Supreme Court 708 at 715 in support of his arguments that where a provision of a statute is clear, it is the duty of the Court to abide by the law and disregard the judgments of the High Court and the Supreme Courts of Pakistan.

1. We asked Mr. Kehar, learned counsel for the petitioner whether he was aware that there were several authorities of the Supreme Court of Pakistan wherein it had been held that the Rent Controller has complete discretion to follow any procedure he deems fit or the principles of procedure laid down in the Code of Civil Procedure. He replied that as a counsel for the petitioners his duty was to his clients which was to place the authorities which were in his client's favour and not those which were against him and therefore, he had not brought with him the authorities which were adverse to the interest of his clients. We were surprised to hear such a statement coming from a Senior Advocate of the High Court of Sindh, a Court well-reputed for its outstanding, upright, honest and competent lawyers. We shall deal with the duties and responsibilities of Counsel to the Court and his client in the later part of the judgment.

2. Upon refusal of Mr. Kehar, learned counsel for the petitioner to place all the law on the issue in question, we undertook the research ourselves and found several judgments of the superior Courts to decide the matter before us.

3. Section 16 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (This Ordinance has been replaced by S.R.P.O., 1979 in the Province of Sindh) provided that a Rent Controller appointed under the said Ordinance shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under Code of Civil Procedure. The said Ordinance thus, did not empower the Rent Controller to use or apply the provisions of the Civil Procedure Code except for the purposes of summoning and enforcing the attendance of witnesses and compelling the production of evidence only. However, in Ayub Khan v. Fazal Haq (PLD 1976 SC 422) where an Application under Order 9, rule 13, C.P.C. was filed for setting aside an ex parte order passed in a Rent Case the learned Supreme Court observed as follows:--

"As the Rent Controller is not bound by the Civil Procedure Code, the question of procedure and especially the procedure for affecting service on defendant is within his exclusive discretion, therefore, he would be entitled, in the exercise of his discretion, to follow the equitable principles of the Civil Procedure Code. Similarly, he would be free not to follow the technical provisions of the Code. But the converse does not follow, and because he has the discretion not to follow the provisions of the Civil Procedure Code, it does not mean that he has been divested of the discretion to follow the Civil Procedure Code when he considers it necessary so to do."

Later, in Smt. Vidaya and others v Moorajmal, (1980 SCMR 267) the Hon'ble Supreme Court approvingly accepted the contention of the appellant that the principle of equity enshrined in Order 32, rule 7 of C.P.C. should be applied to rent cases. This was again reiterated in Muhammad Saleh v. Muhammad Shaft, (1982 SCMR 33) where the Rent Controller applying the provisions of Order 9, Rule 9 restored the ejectment application dismissed for default. The Supreme Court was pleased to observe:-‑

"??although the provisions of C.P.C. are not applicable in terms to the proceedings under the West Pakistan Urban Rent Restriction Ordinance yet the Rent Controller may, in his discretion follow and apply them if he considers it necessary to do so. (See PLD 1976 SC 422), and that in any case the principles thereof are applicable to the proceedings under the said Ordinance."

1. In view of the observations of the Hon'ble Supreme Court in the above referred cases, it is clear that the Rent Controller is at liberty to follow the provisions of Civil Procedure Code to conduct the Court proceedings and exercise his powers as a Rent Controller in light of the principles enshrined in and deduced from the provisions of C.P.C. to conduct the rent proceedings which are of civil nature so that the dispute between the partiesmay be resolved smoothly and expeditiously. His powers as a quasi-judicial officer are not confined to use the provisions of C.P.C. only to summon and enforce the attendance of any person and examine him on oath, compel production or discovery of documents inspect the site; and issue commission for examination of witnesses or documents. He also has wide discretion to follow any reasonable procedure he deems appropriate in the circumstances of the case to achieve the ends of justice which includes the use of the provisions of C.P.C. which is a tested and tried procedure followed in civil proceedings.

2. Even assuming for the sake of argument that the powers of the Rent Controller to exercise power of the Civil Court under the Code of Civil Procedure, 1908 are limited for the purpose as stated in section 20 of the Sindh Rented Premises Ordinance, 1979, we cannot overlook the provisions of Sindh Regulation IV of 1827 which are still in force. The said Regualtion reads as follows:‑

26, "A Regulation prescribing the forms of proceedings of the Courts of Law in civil suits and appeals, and rules for the trial of the same ?..???????????

The law to be observed in the trial of suits shall be Act of Parliament and (Pakistan Laws) applicable to the case, in the absence of such Acts and Regulations, the usage of the country in which the suit arose; if none such appears, the law of the defendant; and, in the absence of specific law and usage, justice, equity and good conscience alone."

1. It is, therefore, clear that the Courts in the Province of Sindh in the absence of any law or procedure prescribed by Statute can follow the precedents of Sindh Chief Court, the High Court of Sindh and the judgments of the Supreme Court of Pakistan which are binding on all Courts of Pakistan. The usage of the principles and provisions of C.P.C., are evident from several judgments of the Supreme Court a few of which have been referred to above. We do not see any illegality in the Rent Controller exercising his powers with reference of section 153, C.P.C. by allowing amendment in the execution application. Even otherwise under section 26 of the Sindh Regulation IV of 1827, the Courts including the Rent Controllers in the absence of any specific law and usage, can apply the principles of justice, equity and good conscience. It was not necessary for Respondents Nos.2 to 10 (the Decree Holders) to mention any section of the Sindh Rented Premises Ordinance or any other law while filing the application. They could have filed the application without mentioning any provision of law and the Rent Controller would have entertained and passed orders on it applying the relevant law because it is the duty of the Court to apply the correct law Whether or not a litigant draws the attention of the Court to it. (Haji Abdullah Khan and others v. Nisar Muhammad Khan PLD 1965 SC 691 and Prince Ghulam Muhammad Khan v. Settlement and Rehabilitation Commissioner, 1972 SCMR 359). It may also be noted that mentioning of wrong provision of law in an application would not normally render it invalid (Mst. Baigan v. Abdul Hakeem and another 1892 SCMR 673).

2. It would not be out of place to add here that under section 20 of West Pakistan General Clauses Act, 1956, the authority which has the power to pass an order also has the power to add, amend, vary or rescind the same. This section is identical to section 21 of the General Clauses Act, 1897 which principle has been confirmed in Bashir Khan v. District Magistrate (PLD 1956 Lahore 892) and Firdous Spinning and Weaving Mills Limited and others v. Federation of Pakistan and others (PLD 1984 Karachi 522). Therefore, every Rent Controller has the power to amend or correct any error that may have occurred in his order, specially, if it involves correction 1 of an inadvertent clerical or typographical mistake.

3. The light of the above we have no doubt in our minds that the Rent Controller has wide discretion for conducting the proceedings before him and can resort to either the principles of C.P.C., apply the principles of justice equity and good conscience described in Sindh Regulation IV of 1827 or exercise his powers under section 20 of West Pakistan General Clauses Act, 1956 or allow an application for amendment of the execution application in a rent case. We do not find any irregularity or illegality in the exercise of jurisdiction or otherwise in the impugned order of the Rent Controller.

4. The petitioners also made Province of Sindh through Secretary Law Department, Sindh Secretariat, Karachi, as Respondent No.9 but have neither made any allegation nor have sought any relief against it. It is appears that the learned counsel impleaded Government of Sindh to overcome any objection that may be raised by the Writ Branch on the maintainability of the Petition and justify the Writ by misleading the clerks of the Writ Branch on the maintainability of the Petition. The action of the learned Counsel in making the Government of Sindh as Respondent No.9, was prima facie, mala fide which act cannot but be disapporved by this Court.

5. Before we proceed to discuss the duties and responsibilities of Counsels to the Court, it would be appropriate to take a bird's eye view of the concept of justice and its administration in a civilized society and especially in an Islamic State.

6. From the dawn of history fair justice has been placed as the ultimate goal of a civilized society. The Holy Prophet (p.b.u.h.) said "the previous nations were destroyed, because they let off persons of high rank and punished the poor and helpless". It is a historical fact that nations which do not provide justice to their citizens in accordance with law ultimately perish. It is pertinent to mention here that after insertion of Article 2A in the Constitution of the Islamic Republic of Pakistan, the principles andprovisions constituted in the Objective Resolution were made substantive part of the Constitution and consequently, the Injunctions of Islam as contained in the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.) became the real, effective and positive law of Pakistan (Zaheeruddin v. The State, 1993 SCMR 1718 at 1774). It is, therefore, incumbent upon every citizen of Pakistan to ensure that all laws and his conduct conform to the Injunctions of Islam as contained in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h). In Surah Al-Maida V. Ayat 8, the Almighty ordains:--

"O ye who believe!

Stand out firmly

For Allah, as witnesses

To fair dealing, and let not

The hatred of others

To you make you swere

To wrong and depart from

?Justice. Be iust: that is

?

Next to piety:...1

In Surah Al-Nahl XVI, Ayat 90, the Holy Qur'an enjoins:-‑

"Allah commands justice, the doing of good"

In Surah Al-Nisa IV, Ayat 105, the Almighty has commanded:-‑

"We have sent down

To thee the Book in truth, That thou mightest judge

Between men, as guided

by Allah."

In Surah Al-Maida V, Ayat, 42, the Muslims have been directed to be equitable while administering justice:

"If thou judge, judge

___________________

1. The Holy Qur'an, Translation by Abdullah Yusuf Ali, published by Sh. Muhammad Ashraf, Lahore (1983 Edition).

Note.--All translations of the Ayaats of the Holy Qur'an in this Judgment are by the same author unless indicated otherwise.

In equity between them;

For Allah loveth those

Who judge in equity."

In Surah Al-Nisa IV, Ayat 58, Allah again reiterates his command to decide disputes between persons with Justice:-‑

"Allah doth command you

To render back your Trusts

To those to whom they are due;

And when ye judge

Between man and man, That ye judge with justice."

In Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 at 424, the Supreme Court observed:-‑

"....The foundation of Islam is on justice. The Concept of justice in Islam is different from the concept of remedial justice of the Greeks, the natural justice of Romans or the formal justice of Anglo-Saxons. Justice in Islam seeks to attain a higher standard of what may be called 'absolute justice' or 'absolute fairness.'

1. It is indisputable that for proper administration of justice it is necessary that the parties who have knowledge of the facts present them in their true form before the Court and not conceal them. Accordingly, Allah ' has forbidden the Muslims from withholding or concealing the evidence relating to the issue to be decided by an arbiter. In Surah Al-Baqr II, Ayat 283, Muslims have been advised;-‑

"Conceal not evidence;

For whoever conceals it, His heart is tainted

With sin. And Allah

Knoweth all that ye do."

Similarly, in Surah Al-Baqr II, Ahyat 282, it is ordained that:

"The witnesses

Should not refuse

When they are called on

(For evidence)."

1. It would not be out of place to mention here that looking at their experience of administration of justice in England and the important role that the lawyers play in the system, a Committee headed by Lord Woolf in its First Report of 1996 entitled "Access to Justice" recommended several changes in the Rules of Civil Procedure which were approved by the English parliament and a new Civil Procedure Code was enforced in 1998. Under the Rules, the parties are required to disclose not only the documents which are in their favour but also those documents which are against them. Rules 31.6 relating to Disclosure and Inspection of Documents, reads as follows:-‑

31.6 Standard disclosure - what documents are to be diclosed. Standard disclosure requires a party to disclose only?

(a) the documents on which he relies; and

(b) the documents which -

(i) adversely affect his own case;

(ii) adversly affect another party's case; or

(iii) support another party's case; and

(c) the documents which he is requried to disclose by a relevant practice direction."

In order to give full effect to the aforesaid provision, it was felt necessary to take penal action against persons who make false disclosure statements. Consequently, a new proposed Rules 31/23 was apparently passed by the English Parliament this year which reads as follows:-‑

"False disclosure statements

31.23 (1) Proceedings for contempt of Court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth:"

1. According to Justice Douglas of the U.S. Supreme Court "...the. Pretrial procedure makes a trial less a game of blind man?s buff and a more fair contest with the basic issues and facts disclosed to the fullest practicable extent". United States v. Procter & Gamble Co., 356 US 677 (1958). The United States, Federal Rules of Civil Procedure ("FRCP") have been lately further amended to obtain full and complete disclosure of all relevant information of the dispute from the parties. The relevant Rule reads as follows:

"Rule??? 26(a).---Required Disclosures; Methods to Discover Additional Matter.

(1) Initial Disclosures.--Except to the extent otherwise stipulated or directed by order or local rules, a party shall, without awaiting a discovery request, provide to other parties:-‑

(A) the name and, if known, the address and telephone number of each individual likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings, identifying the subjects of the information;

(B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings;

(C) ???.

(D) for inspection and copying as under rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action, or to indemnify or reimburse for payments made to satisfy the judgment.

Unless otherwise stipulated or directed by the Court, these disclosures shall be made at or within 10 days after the meeting of the parties under subdivision (t). A party shall make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures."

"(26(e) Supplementation of Disclosures and Responses.--A party who has made a disclosure under subdivison (a) or responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the Court or in the following circumstances;

(1) A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. With respect to testimony of an expert from whom a report is required under. subdivision (a)(2)(b) the duty extends both to information contained in the report and to information provided through a deposition of the expert, and any additions or other changes to this information shall be disclosed by the time the party's disclosures under Rule 26(a)(3) are due.

(2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing."

(Underlining added)

In case, the party fails to disclose, refuses to admit or makes a false and misleading disclosure, he is precluded from using such evidence at the trial and is also subject to penalty, as provided in Rule 37 of F.R.C.P.

1. The duties of the Muslims and their conduct in assisting the Court to do justice are also reelected in various Ayaat of the Holy Qur'an. In Sura Al-Baqr II, Ayat No.283 it has been enjoined:-‑

"283???? Do not suppress any evidence, for he who conceals evidence is sinful of heart; and God is aware of all you do".2

Similar principles have been enunciated in Sura Al-Nisa IV, Ayat No.135 as follows:--

"135. 0 ye who believe!

Stand out firmly

For justice, as witness

To Allah, even as against

Yourselves, or your parents, _______________________

1. Al-Qur'an. A Contemporary Translation by Ahmed Ali. Akrash Publishing, Karachi, 1986 Edition.

Or your kin, and whether

It be (against) rich or poor:

For Allah can best protect both.

Follow not the lusts

?

(of your hearts), lest ye

Swerve, and if ye

Distort (Justice) or decline

To do justice, verily

Allah is well-acquainted

With all that ye do."

(Underlining added)

1. Keeping the aforesaid principles in mind, the Honourable Supreme Court of Pakistan in the case of Shukur Din v. Inamullah, PLD 1992 SC 67, while discussing the duties of Counsel to the Court to point out the correct law and procedure observed that:-‑

".. .. All the parties and their Counsel were bound to assist the Court in pursuance of the rule of good conduct in the Court; namely, when seeking justice do iustice. The saluable (sic) rule of practice has also the support of Islamic Jurisprudence."

(Emphasis added).

Similarly, in the case of Muhammad Yaseen Khan and others v Government of Azad Jammu and Kashmir, 1991 MLD 2295, 2301, Manzoor Hussain Jillani, J., observed as follows:

"14. Before parting with the case, it may be placed on record that it is the duty of the Advocates, being officers of the Court, to carefully examine the briefs and ascertain the full facts from their clients before lodging a case in a Court of law. The Advocates must specifically obtain a vertification from the clients before lodging the case, with specific mention of earlier litigation on the subject-matter of dispute. The Advocates are equally repsonsible, if they take uP the briefs without ascertaining the true facts and in such case they would be deemed as a party to the vexatious claim."

1. It is often said that the institution of Vakils and the practice of Vakahat (advocacy) are contrary to the teaching of Islam and a good Muslitu should not take up the profession of law and invariably quote Akbar Allahabdi, the famous Urdu poet, who in a couplet referred to Advocates as the children of Iblees (Satan). This misconception and misunderstanding in our opinion, is based upon ignorance of the tenets of Islam, the complexities of modern day laws and the conduct of unscrupulous lawyers who violate the commands of Allah and all norms of justice laid down by the Superior Courts and the Rules of Professional Ethics. Let us examine what Islam and Muslim Scholdars say about the institution of Vakils f (Advocates/attorneys/agents) of a party prosecuting or defending claims in a Court of law. In the Holy Qur'an, Surah Al-Nisa IV, Ayat 105, it is said:--

"We have sent down

To Thee the Book in Truth, That thou mightiest judge

Between men, as guided

By Allah: So, be not (used)

As an Advocate by those

who betray their trust;

(Underlining added).

Professor Ahmed Ali has translated the same Ayat, a little differently as follows:-‑

"We have sent down to you the Book containing the truth, in whose light you should judge among the people as God has shown you, and do not be a Contender for deceiver."'

(Underlining added)

From the above Ayat it can be inferred that Allah does not forbid advocacy on behalf of a person if that person is not deceiving, acting dishonestly or betraying the trust of another. Further, in the famous book of Figah Hanafi "Kitab Badaae As Sanaae" (Volume 6 Page 22) it has been observed that "In matters of Deen, goods and rights of men, appearance of a Person for another with the permission of the opposite party is permissible"' Qazi Tajuddin Abu Nasar Abdul Wahab Alsubki in his book entitled

________________________________

3.???????? AI-Qur'an,. A Contemporary Translation by Ahmed Ali

4????????????? Islmi Nizam-e-Adl, Report, Islamic Ideology Council, Islamabad, 1984 Edition, Page 76.

"Moeed Al-Nana Wa Mubayad Al-Nagm"5 has opined on the rationale and conditions of practice of Vakils as follows:-‑

In "Judicial System of Islam"6 , the learned author in Cahpter 7 relating to "Wakalah" (Agency and Attorneyship) has referred to various authorities, a few paragraphs of which are as follows:‑

?298. Wakalah is defined by the Fuqaha' as the appointment of another person to do the needful in a known transaction on behalf of the principal. Almost all the fuqaha are of the opinion that it is lawful. Ibn Qudamah, a Hanbali Jurist, in this connection, says:

Wakalah is lawful according to the Holy Book, the Sunnah and the consensus.

?299. Wakalah means agency including the act of representing a litigant or appearing on his behalf before the Court of justice in order to contest the dispute put up for decision".

? 305. The Rationale.

The fourth and wonderful argument of the learned writer is rationale of Wakalah. He says that necessity demands it, because everyone cannot perform by himself what he has to do out of necessity.

?306. Al-Marghinani, the Hanafite, has changed the arrangement of arguments and says:

__________________________

1. Dr. Tanzilur Rehman, Islami Nizame Adalat, Published by Darul Tanzil, Karachi, page15. The Quotation has been reproduced from this book.

2. Ghulam Murtaza Ali, Judicial System in Islam, Islamic Research Institute, International Islamic University, Islamabad, 1987 Edition, pp.106-112.

It is lawful for a person to appoint another as his agent, for the settlement in his behalf of every contract which he might have lawfully concluded himself (Al-Hidayah, II), 177)."

"308. As for the Attorneyship at law, the erudite writer says in clear words that it is lawful for a person to appoint another as his agent for the management of a suit related to any rights whatsoever, and argues that everyone is not fully acquainted with the mode of contesting disputes. For support he adduces the precedent of Ali that he appointed Aqil and then Abd Allah b. Ja'far as his attorneys (in disputes)."

It has been related by various scholars that the Holy Prophet (p.b.u.h.) had appointed Hazrat Hakim Bin Hazam as his attorney to purchase a sacrificial animal and appointed Hazrat Umer Bin Abi Salma as his attorney to contract a marriage.' It is often stated that the Holy Prophet (p.b.u.h) appointed Abu Rafeh as his agent to contract a marriage with Hazrat Memoona and Umar Bin Umayeh Zamiri as his agent to contract a marriage with Ume Habiba.8

It may, therefore, be safely concluded that the institution of Vakils (Advocates) and advocacy is neither forbidden as such by Shariah nor is it discouraged by Muslim Scholars as it helps and assists the aggrieved persons to obtain their lawful rights through the Courts.

1. Let us now examine what Islamic Law says about placing the correct law before the adjudicator to enable him to decide the issue in accordance with law and how different cultures and societies monitor the conduct of the legal profession. In this context Maududi in his Tafseer relating to Surah Al-Maidah 5, Ayaat 42-43, has referred to the following historical event from the life of the Holy Prophet (p.b.u.h.)9-‑

"??. it refers to a case of illicit relation between a man and a woman who belonged to respectable families of Jews of Khaibar. According to the Torah (Deut. 22:23-24), their punishment was that both of them should be stoned to death. As the Jews did not want to inflict this punishment, they decided that the case should be taken to the Holy Prophet and that they would accept his decision only if it

________________________

1. Adaab-ul-Qazi, Complied by Mehmood Ahmed Ghazi, Published by Idarah Tehqeeqat Islami, 1983 Edition, page 666.

2. Kitab-ul-Fiqah, Volume 3, Published by Department of Auqaf Punjab, Lahore 1979, page 171.

???????????

1. The meaning of Qur'an. Vol III, page 45, English Version, by S. Abul Ala Maududi, Islamic Publications Ltd., Lahore, 1972 Edition.

was brought before him and he decreed that they should be stoned to death, but the Jews rejected it.. Then the Holy Prophet asked them what the punishment was according to the Torah. They replied that it was to flog the culprits and to blacken their faces and to mount them on a donkey. The Holy Prophet asked them to declare on oath whether that was the punishment for adultery committed by a married couple. They all but one answered that it was so. The one who had kept quiet was Ibn-e-Surya, who was considered to be the greatest scholar of the Torah by the Jews themselves. The Holy Prophet pointedly addressed him and asked. 'I want you to swear by that God who saved your people from the Pharaoh and gave your Law on the Tur, and answer whether it is this same punishment for adultery in the Torah that these people tell.' He said, 'I would never have confessed that the punishment for adultery is stoning the culprits to death, if you had not laid upon me such a heavy oath. . The fact is that when adultery became common among us, the judges would let the offenders go, if they happened to be big people. But as this differentiation caused a great discontent among the common people, we made a change, in the Law that instead of stoning the culprits to death they should be flogged and mounted on the donkey with blackened faces.' After this, no other course was left for the Jews, and the culprits were stoned to death by the order of the Holy Prophet." (Underlining added).

It is apparent from the above proceedings that in an Islamic State it is the duty of the expert or the person knowledgeable in the law not to conceal but to place the correct law before the deciding authority.

1. Based upon the Rules of Professional Conduct for Lawyers of various States, American Bar Association has formulated its own Code of Ethics known as 'ABA Model Rules of Professional Conduct" and has suggested that all the States adopt the said Model Rules so as to bring uniformity in the whole country. Rule 3.3 of ABA Model Rules of Professional Conduct provides as follows:-‑

3.3(a) A lawyer shall not knowingly:--

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(4)offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) The duties stated in paragraph (a) cointinue to the conclusion of the proceeding, and apply even if compliance requires diclosure of information otherwise protected by Rule 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts knwon to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse. "10

1. Various Scholars and teachers of law have written extensively on the ethics of the legal profession and the duty of counsel to place before the Court all judicial authorities on the question in issue and especially the judicial pronouncements which are adverse to the contention propounded by him. The famous book on "Legal Ethics in the Practice of law" " contains the following passages which are relevant for our purposes:-‑

"(1) Disclosure of Adverse Authority.--The following article written by one of the ethics counsel at the ABA's Centre for Professional Responsibility, describes the perils of failing to cite adverse authority. But while the Court may appreciate full disclosure of adverse authority, a client may be quite unhappy with a lawyer who is completely honest with the Court, perceiving that lawyer as less than a zealous Advocate. Is it possible to be a zealous advocate and fully disclose adverse authority to the extent advocated in this article?"

JOANNE PITULLA, PLAYING OSTRICH, ABA Jounral (August, 1993)

Fundamental to a lawyer's role as an officer of the Court is the duty to disclose adverse authority or to describe that duty more precisely the legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." (See Model Rule 3.3(a)(3) and DR 7-106(B)(1) of the predecessor Model Code of Professional Responsibility).

______________________

1. Stephen Gillers, Roy D. Simon, Jr, Regulation of Lawyers, Statutes and Standards, Little, Brown & Company, New York, 1997 Edition, page 207.

2. Richard A. Zitrin and Carol M. Langford, Legal ethics in the Practice of Law, Michie Company, Charlottesville, Virginia, 1995 Edition.

Many lawyers say, 'Why should I do research and supply argument for the other side? That's their job. My duty is to my client' But Courts must rely on lawyers to supply the . law that governs a particular case. As the Comment to Rule 3.3 says, 'A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities.' The lawyer can then distinguish the authority or argue for a new precedent.

Extent of Duty

The duty to reveal adverse authority continues to the end of the case and must be met whenever the lawyers become aware of the precedent's existence. (See Model Rule 3.3(b).) The Standing Committee on Ethics and Professional Responsibility concluded in Informal Opinion 84-1505 (1984) that even when an issue is not presently under consideration but may be revisited, the lawyer who learns of a controlling Court decision that may be interpreted as adverse to the client's position must promptly advise the Court.

Professors Hazard and Hodes 'The Law of Lawyering, '3.3:206 (2d ed. 1990), provide even more succinct guidance: '(The more N unhappy a lawyer is that he found an adverse precedent, the clearer it is that he must reveal it.' Playing ostrich can result in sanctions for the lawyer and the loss of the client's case.

(Underlining added).

1. While discussing Rule 11 of the Federal Rules of Civil Procedure which relates to Pleadings, Representation to Court and Sanctions etc., the learned authors of "The Law and Ethics of Lawyering" 12 have observed:

"A lawyer should not be able to proceed with impunity in real or feigned ignorance of authorities which render his argument meritless. See, e.g., Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 205 (7th Cir. 1985) In addition, Rule 11 is not the' only tool available to Judges in imposing sanctions on lawyers."

1. The English law relating to the conduct of counsel in Court is similar. Halsbury's Laws of England states, that:-‑

?... Counsel is concerned in the proper administration of justice and owes an overriding duty to the Court, to the standards of his profession, and to the public, to ensure that it is achieved. Thus counsel must not mislead the Court. . . and he must bring all

________________________

1. Geoffrey C. Hazard, Jr, Susan P. Koniak, Roger C. Cramton, The Law and Ethics of Lawyering, Foundation Press Inc. New York, 1994 Edition, page 424.

relevant authorities to the attention of the Court, whether Or not they assist the party for whom he appear."13

In the Madden's case, the Court went to the extent of observing that "If a case is listed for trial at a place where there is no library or there are not sufficient reference books or sufficient access to authority, then, it is counsel's responsibility to alert the Court to the fact and to seek to get the case transferred to a Court where the necessary material can be made available to the Court and can be used in argument".14

1. Similarly the Pakistan Legal Practitioners and Bar Councils Rules, 1976, Chapter XII relating to Canons of Professional Conduct and Etiquette of Advocates provide as follows:‑

"160. An Advocate shall not advise a person whose testimony could establish or tend to establish a material fact to avoid service of process or conceal himself or otherwise to make his testimony unavailable."

"161.??? An advocate shall-not intentionally misgoute to a Judge, judicial officer or jury the testimony of a witness, the argument of the opposing Advocate or the contents of a document; nor shall he intentionally misquote to a Judge or officer the language of a book statute or decision; nor shall he with knowledge of its invalidity and without disclosing such knowledge cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional.

"163.??? The primary duty of an Advocate engaged in public prosecution is not to convict, but to see that justice is done. The suppression of facts or the concealing of witnesses capable of establishing the innocence of the accused is highly reprehesible.

(Underlining added).

The Pakistan Bar Council Rules relating to the duty of Advocates to the Court are not as exhaustive as those of many civilized countries of the world. However, Rule 161 expressly enjoins that an advocate shall not cite as an authority a decision that has been overruled. It, therefore, follows that it is also the duty of an advocate to bring to the knowledge of the Court the authority or decision of the Superior Court which is contrary to the arguments advanced by him and which may be adverse to the interest of his client. In view of the Injunctions of the Holy Qur'an "not to conceal any

____________________________

1. Halsbury's Laws of England, 4th Edition, Vol 3(1), para. 415.

2. R. v. Madden, (1975) 3 All E R 155 at 157.

evidence even if it be against yourselves or your parents or relatives" which would include the statutory law or a principle of law pronounced by a superior Court applicable to the facts of the case, all Muslims and especially the Advocates must strictly comply with the commandment. Further, as an officer of the Court, it is the bounden duty of an Advocate to place before p the Court any adverse authority, especailly if it has not been cited by the opposing counsel, so that all the relevant law is before the Court to enable it to do justice in accordance with law and the Injunctions enunciated in the Holy Qur'an.

1. Keeping in mind the Injunctions of the Holy Qur'an and the duty of Counsel as an officer of the Court, the Honourable Supreme Court of Pakistan, in the case of Shukardin v. Inamullah and another, PLD 1992 SC 67 at 68 observed as follows:-‑

"He, however, vehemently argued that this defect should have been pointed out at the trial stage by the other side. But he failed to advance the point any further when questioned as to why the petitioner side did not perform the same duty to the Court--as all the parties and their counsel were bound to assist the?? Court in pursuance of the rule of good conduct in the Court; namely, when seeking justice do justice.`This salvable (sic) rule of practice has also the support of Islamic jurisprudence."

(Underlining added).

1. It is, therefore, clear that in a civilized society and an Islamic Society is on a higher pedestal, it is the duty of every Muslim in general and an advocate/counsel in particular not to conceal the truth, which includes both the evidence and the law in relation to the matter in issue and place the same before the Qazi, i.e. the Presiding Officer of the Court. The advocate being an officer of the Court and upholder of Truth and Justice is subject to a higher degree of responsibility. It is his primary duty not only to place the law and reported judgments in favour of his client but also place before the Court the law and the reported judgments which may be against him and leave it to the Judge to decide the issue. Of course, he has the right to argue before the Court that the ruling which appears to be against him is either distinguishable or not applicable to the facts of his case or that it is not a correct interpretation of law according to him. He must in every case bring to the attention of the Court judgments which prima facie are against the proposition he is, advancing. If he does not do so, it would not only be contrary to Islamic Law but also contrary to the Rules of Conduct of an Advocate in Pakistan which is an Islamic Society.

2. It would not be out of place to mention here that from reading of the case files that come before us and watching the conduct of advocates in contentious matters, we have observed that the failure to fully disclose the relevant facts and law often leads to lengthy litigation resulting in waste of time and money of the litigants as well as the precious time and financial costs of the Court which can be utilized fruitfully for better and quicker administration of justice. The conduct of advocates which results in such waste is not praise-worthy and should not only be discouraged but should be subject to exemplary penalty in patently vexatious cases.

3. In light of the aforesaid short exposition of law, we may summarize the status and duties of an advocate in an Islamic Society as follows:--

(i) An Advocate is an Office of the Court and is duty bound to assist the Court in the administration of justice.

(ii) He must, before taking up any matter on behalf of a client, ensure that the claim or defence is based upon truth, honesty and propriety. In case he finds that it is not so, he must decline to take up the matter on behalf of the client.

(iii) He must disclose all material facts (evidence) and law including legal precedents to the Court.

(iv) He must not knowingly conceal any material fact or legal authority from the Court and must bring to the notice of the Court all precedents relating to the case in issue and specially the adverse precedent or authority of a superior Court that governs the particular case, even if it be against the interest of his client. He may, however, express his opinion on the precedent and argue that the principle laid down in the cited precedent is either distinguishable or not applicable in the circumstances of his case. His duty to the Court would increase doubly if the adverse authority has not been cited or has been overlooked by the opposing counsel.

(v) Any concealment or withholding of evidence or an adverse authority would be a clear violation of the Injunctions of the Holy Qur'an and the canons of Professional Ethics practised by civilized societies.

(vi) To sanctify the duties enumerated above, it would be advisable for the legislature and the Pakistan Bar Council to amend the relevant laws to incorporate an Oath which all persons must take before entering the profession of law. We may mention here that the making of an oath has been recommended by the Islamic Ideology Council of Pakistan. We have, however, modified it a little in the light of our research stated above. The wordings of the Oath should be as follows:--

"I,???????????????????? son of

.... do hereby make oath as follows:-‑

(a) That I shall perform my professional duties as an Advocate with honesty, propriety, integrity and with fear of Allah so that I may be truly helpful to the Court in arriving at a just decision.

(b) That in every matter I shall place all the facts and evidence, relevant provisions of law and judgment of superior Courts, both for and against the proposition, before the Court without any hesitance whether it is in favour or against the interest of my client keeping in my mind that I am responsible to Allah, the omniscient, for all my acts and deeds.

(c) The I shall not withhold or conceal from the Court any evidence, legal provision or judicial precedent of any superior Court of Pakistan especially the one which is adverse to the interest of my client."

We may point out that the essential features of the proposed oath are not new to the lawyers in civilized states and are based upon the canons of professional ethics practised in England and USA except that the fundamental Q Rules of Professional Conduct have been prescribed in the form of an oath and the fear of God has been incorporated to bring it in line with our Islamic faith which is the basis of the creation of the Islamic Republic of Pakistan. 15

1. Before concluding, we would like to point out that after reading the Injunctions of the Holy Qur'an relating to the Administration of Justice, opinions of Muslim Scholars, the duties of Muslims including advocates to the Court and the Rules of Professional Conduct followed by civilized societies, it appears that the same have not been brought to the notice of legislature and the Pakistan Bar Council. We-hope that both the legislature and the Pakistan Bar Council shall seriously look into the matter and revisethe relevant laws to bring them in conformity with the commandments of Almighty Allah so that the people of the Islamic Republic of Pakistan may stand proudly with other civilized societies of the world whose rules and

___________________________

1. For detailed discussion see (1) Injunctions of the Holy Qur'an referred to above (2) Islami Nizame-e-Adl, Supra, (3) Halsbury's Laws of England, 4th Edition, Vol 3(1), Supra and (4) ABA Model Rules of Professional Conduct in Stephen Gillers,Regulations of Lawyers, Supra.

regulations have been found to be in conformity with the Islamic principleslF of justice.

1. In light of the above discussion, it is apparent that the conduct of Mr. Kehar, learned counsel for the petitioner, was not in accordance with the Injunctions of Islam or even the standards expected of an Advocate and an officer of this Court. It is a fit case in which counsel must be burdened with exemplary and punitive costs; however, this being the first case of its kind of which notice has been taken by us, we would refrain from imposing such costs which should unquestionably be imposed in future in similar , circumstances.

The petition is dismissed in limine.

Q.M.H./M.A.K./M-95/K???????? ??????????????????????? Order accordingly.

P L D 2001 Karachi 85

Before Sarmad Jalal Osmany, J

S.M. ILYAS and another---Plaintiffs

versus

KARACHI BUILDING CONTROL AUTHORITY through Chief Controller of Buildings and another---Defendants

Suit No.531 and Civil Miscellanous Applications Nos. 10017, 3035 and 6078 of 1999, decided on 18th February, 2000.

(a) Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), 0.1, R. 10 --- Constitutional petition ---Suit---Joinder of parties---Considerations---Considerations for joinder of parties to suits and Constitutional petitions operate in different spheres. [p. 90] A

Shehla Zia v. WAPDA PLD 1994 SC 693 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition ---Joinder of party---Considerations- -Not necessary that a petitioner should have a right in the strict juristic sense but it is enough if the petitioner discloses that he has a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise---Such person may be joined as a party to the Constitutional petition.

Ardeshir Cawasjee v. KBCA 1999 SCMR 2883; Abdul Waheed Butt v. Mrs. Asma and 4 others 1989 CLC 1936 and Suleman Mala v. KBCA 1990 CLC 448 ref.

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

----O. I, R.10(2)---Expressions "necessary party" and "proper party"--­Connotation---Joining of parties to a suit---Scope---Object of 0.1, R.10(2), C.P.C.---Two categories of parties who may be joined to a suit have been contemplated by the provision of O.I, R.10(2), C.P.C.---Necessary party is the one who ought to have been joined and in whose absence no effective adjudication can take place or decree passed while proper party is the party whose presence is necessary before the Court in order to completely and effectually adjudicate upon and settle all questions involved in the suit--­Purpose of 0.1, R.10(2), C.P.C. is to avoid embarrassment of the trial by the simultaneous investigation of totally unconnected controversies---Both "proper party" and "necessary party" must display a right or interest in the proceedings as understood in the strict juristic sense.

Abdul Waheed Butt v. Mrs. Asma and 4 others 1989 CLC 1936 and Suleman Mala v. KBCA 1990 CLC 448 ref.

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

----O. I, R.10---Proper party ---Intervenor---Joining of intervenor as a proper party in the suit---Pre-conditions---Material placed before the Court by the intervenor ---Value---Where an intervenor lays before the Court any issue or material which has not been raised or brought before the Court by the parties to a suit but the same is necessary to effectually and completely determine all questions between the parties, then such intervenor falls into the category of a proper party---Material brought before the Court by the intervenor should not extend the scope of the controversy between the parties or add a new cause of action unconnected with the original cause of action so as to embarrass the trial of the suit by the simultaneous investigation of unconnected controversies.

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

----O. I, R.10(2)---Expressions "necessary party" and "proper party"--­Distinction---" Necessary party" means a party in whose absence no effective adjudication can take place or decree passed, on the other hand a "proper party" is one whose presence before the Court is necessary in order to effectually and completely adjudicate upon and settle all the questions involved in the suit---"Proper party" needs only to, display a passing interest in the suit so as to qualify as a joinder and no relief is prayed for against such party--- "Proper party" has to establish a right or interest in the proceedings albeit, not of the same quality, category or nature as that of a "necessary party".

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

----O. I, R.10---Public interest litigation---Proper party to proceedings ---Pre­conditions---Right or interest to be displayed by a proper party need not be a strict legal right in public interest litigation cases---Sufficient if it were established that such party had an interest in the performance of a legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise---Where public interest is involved, a proper party need not only be the residents of the area but others who would be affected could join as proper party---Harshness of the strict legal test as to a right or the interest displayed by a proper party is to be mitigated in cases of public interest litigation, provided the other test its to its presence for the purpose of effectually and completely resolving the questions between the parties is satisfied, the latter of course being strictly construed.

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

----O. 1, R.10 & O.VI, R.17---Joinder of proper party---Public interest litigation---Dispute with regard to construction of a building on road side--­Intervenor was a Non-Governmental Organisation active in environmental area---Objection by the intervenor was that the disputed building was being constructed on the cut line of the road on which the same was being raised--­Contention by the plaintiff was that intervenor was not a necessary party to the suit---Validity---Where the question of the cut line was raised by the defendant and countered by the plaintiff and the intervenor had displayed an interest and prima facie established that its presence would be necessary to determine the question, the joinder of the intervenor would not add a new cause of action or embarrass the trial by the investigation of unconnected controversy---High Court directed the plaintiff to amend the plaint by adding the intervenor as defendant.

(h) Sindh Buildings Control Authority Ordinance (V of 1979)---

----S. 21-A(3)---Regulations---Effect---Regulations have statutory force by virtue of S.21-A(3) of Sindh Buildings Control Authority Ordinance, 1979.

(i) Sindh Buildings Control Authority Ordinance (V of 1979)---

----S. 21-A---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2--­Interim injunction, grant of---Interference in construction of building--­Building was allegedly constructed on cut line of a road---Authorities intended to seal/demolish said building---Validity---Road which was subject-matter of the suit was not included in the roads listed in Sched. G of the relevant Regulations and the same had not been notified for future road widening---Master Plan Environmental Committee in consultation with the concerned Authority designated in any particular area for building control might declare and notify widening and new alignment of any other road/street (not mentioned in the Sched. G) which in its opinion was expedient for the purpose to relieve traffic congestion---Such widening was to be undertaken only after inviting public objections as provided by the Regulations as per Serial No.5 of Sched. G---Where the conditions laid down by the statute were not complied with, the plaintiffs could not be forced to set back the building line during the construction.

Ardeshir Cawasjee v. KBCA 1999 SCMR 2883; Excell Builders v. KBCA 1999 SCMR 2089; Asma Builders v. Government of Sindh 1993 CLC 326; Muhammad Shams Erum Usman v. KBCA 1989 CLC 193; KBCA v. Abdul Razzak PLD 1994 SC 512; Feroza Hajiani v. Abdul Razzak 1992 MLD 527 and Multiline Associates v. Ardeshir Cowasjee and others PLD 1995 SC 423 ref.

(j) Sindh Buildings Control Authority Ordinance (V of 1979)---

----S. 21-A---Demand of No-Objection Certificate---Revised plan had not been sanctioned by the Authorities---Effect---Where no such plan had been approved, the unconditional No-Objection Certificate from the utility companies could not be demanded.

Abid S. Zuberi with Nadeem Azhar for Plaintiffs.

Kazim Hassan for the Intervenor.

Naeem-ur-Rehman for Defendant No. l (in C. M. As. Nos. 3035 and 6078 of,1999).

Kazim Hassan for Defendant No.2 (in C.M.As. Nos.3035 and 6078 of 1999).

Dates of hearing: 7th and 17th December, 1999.

2001 Karachi 105

Before Saiyed Saeed Ashhad, J

MAQBOOL AHMED BHAT71 ---Applicant

versus

ZEESHAN AHMED BHATTI and another---Respondents

Revision Application No.280 of 1994, decided on 20th October. 1997.

Civil Procedure Code (V of 1908)---

---S. 115 & O.XX, R.15---Dissolution of partnership firm---Rendition of accounts---Failure to verify the accounts---Casting liability on one defendant on the basis of statement of the other defendant ---Prelimnary decree in a suit for rendition of accounts was passed and Receiver appointed by the Trial Court was directed to verify the accounts---Statement of accounts submitted m the Trial Court was accepted by one defendant---Trial Court on the basis of such statement passed the final decree against both the defendants--­Defendant not accepting the statement, filed appeal which was dismissed by the Appellate Court---Contention of the defendant was that acceptance of the statement of accounts by other defendant could not be made basis of decree against him---Validity---Both the Courts below had committed illegalities and irregularities in arriving at their respective findings against the defendant--­Both the Courts had not adhered to the provisions of law and had relied upon the material/evidence without entertaining inquiry as to the validity, legality and correctness thereof and the fact whether the same could be admitted and relied upon for the purpose of decreeing the suit against the defendant--­Statement/admission could only be used against the defendant making the same and not against the other defendant for holding him liable to make payment of the amount to the plaintiff---Where the plaintiff failed to lead any evidence before the Trial Court to make defendant liable for making any payment to him out of his share, the judgments and decrees of the Courts below were not valid and could not be sustained---High Court modified the judgment of the Courts below and decreed the suit against the defendant who accepted the statement of accounts on the basis of his admission.

Bhika Mal and others v. Piram Mal and others AIR 1923 Lah. 123 and Abdul Karim v. Haji Ilyas and others 1986 CLC 1660 ref.

Ch. Iftikhar Ahmed for Applicant. .

Attaullah Khan for Respondents. .

Date of hearing: 10th September, 1997.

P L D 2001 Karachi 112

Before Muhammad Roshan Essani, J

MUHAMMAD AKRAM---Applicant

versus

THE STATE---Respondent

Criminal Miscellaneous Application No.99 of 2000, decided on 19th October, 2000.

(a) Pakistan Telecommunication (Reorganization) Act (XVH of 1996)---

----Ss. 29(1), 30, 31, 20 & 31(5)---Criminal Procedure Code (V of 1898), Ss.561-A, 154, 173 & 4(1)(h)---Quashing of conviction and sentence--­Cognizance of the offences punishable under the Pakistan Telecommunication (Reorganization) Act, 1996 could only be taken by the Court on a complaint in writing by an Officer authorised by the Authority or the Board as envisaged under S.31(5) of the said Act ---F.I.R. registered under S.154, Cr.P.C. and the report submitted under S.173, Cr.P.C. could not be equated with the complaint as defined under SA(1)(h), Cr.P.C.--­Cognizance taken by the Trial Court on the police report and trial of accused in the case, therefore, was not in consonance with the mandatory provisions of law---Statement of accused pleading guilty and praying for mercy was also not recorded in his actual words which was a mandatory requirement of law---Conviction and sentence of accused being in flagrant disregard of the law amounted to abuse of the process of the Court and the same were set aside accordingly.

Haji Tooti Bashar v. The State 1993 PCr.LJ 1448 and Ghulamullah v. The State 1993 PCr.LJ 1307 ref.

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

----Ss. 4(1)(h), 154 & 173---F.I.R. not equivalent to complaint ---F.I.R. registered under S.154, Cr.P.C. and report submitted under S.173, Cr.P.C. cannot be equated with the complaint as defined under SA(1)(h), Cr.P.C.

Bhajandas Tejwani for Applicant.

P L D 2001 Karachi 115

Before Muhammad Roshan Essani, J

ABDUL KARIM and 5 others---Applicants

versus

ABU ZAFAR QURESHI and 3 others---Respondents

Criminal Miscellaneous Application No. 193 of 1998, decided on 26th October, 2000.

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

----S. 500---Defamation---Mens rea or intention is essential ingredient for constituting an offence of defamation---Article published must be libellous lowering down the reputation of the person.

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

----Ss. 499 & 500---Constitution of Pakistan (1973), Art.19---Criminal Procedure Code (V of 1898), S.561-A---Quashing of proceedings---Accused according to the alleged defamatory news items published in the Daily Newspapers had held a Press Conference about the complainant and apprised the Press Reporters about the violation of the order of the Court by him--­Complainant in his complaint filed under Ss.499/500, P.P.C. had neither quoted any specific instance nor examined any witness to substantiate that his reputation was lowered down in the eyes of arty of his superiors, friends or persons of general public---Complainant had not even examined any of his relations who had discontinued the contacts with him after the publication of the said news items---Allegations made in the complaint were of general nature---Trial Court without applying its judicial mind has issued the process against the accused in haste and failed to consider that the prima facie evidence for the purpose of Ss.499/500, P.P.C. was lacking in the case--­Newspapers had not reported, published or printed of their own and they did not criticise, but had reproduced what was stated before them by the accused---Fundamental Right of Press was protected in publishing the news item against the action for defamation under Art. 19 of the Constitution--­Honest and fair reporting of a public statement or bona fide expression of opinion on a matter of public interest was not actionable even if it did not come to be true---No prima facie case under Ss.499/500, P.P.C., thus, had been made out and continuance of the proceedings before the Trial Court would be abuse of the process of the Court---Proceedings pending against the accused in the Trial Court were quashed accordingly.

Aun Saieed Hashmi and another v. The State and 2 others PLD 1976 Kar. 706 and Majid Nizami, Prop. The Nation and Nawa-i-Waqt v. Sheikh Muhammad Rashid PLD 1996 Lah. 410 ref, Shafi Muhammad Memon for Applicants.

Saifuddin Shah for Respondent No. 1.

Imdad Ali, Awan for Respondents Nos. 2 and 3

Ghulam Sarwar Korai'for the State.

Date of hearing: 25th August, 2000.

P L D 2001 Karachi 122

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

IRFAN ALI ---Petitioner

versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.D-782 of 2000, decided on 8th November, 2000.

Telegraph Act (XIII of 1885)---

----S. 7-A---Constitution of Pakistan (1973), Art.199---Constitutiona petition---Disconnection of telephone---Telephone installed in the premise; of petitioner was disconnected by the Authority without show-cause notice despite petitioner was not in arrears in respect of his telephone --- Telephon of petitioner was disconnected on ground that dues of telephone installed it premises of brother of petitioner were outstanding---Validity---Brother o petitioner was running his business separately from the petitioner in different premises and number of his telephone was also different to that o petitioner---Petitioner could not be saddled with responsibility or any illegal act committed by his brother especially when they were not business partners---Everybody being responsible for his own acts, deeds or misdeed: action by the Authorities against petitioner was declared to be arbitrary and in excess of authority.

Ghulam Muhammad Khan Durrani for Petitioner.

Abdul Sattar R. Khokahr for Respondents Nos. 2 and 3.

Shaikh Abdul Ghani, D.A.-G.

P L D 2001 Karachi 124

Before Muhammad Ashraf Leghari, J

Mst, QADIRAN BEGUM---Appellant

versus

Dr. JAHANGIR AHMED ---Respondent

First Rent Appeal No. 19 of 1992, heard on 2nd November, 2000.

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

----Ss. 21 & 22---Execution of ejectment order---Execution application file( by landlady was objected to by the tenant contending that landlady has entered into a fresh agreement with him and she had also received money from him for enhanced rent---Landlady had pleaded that alleged agreement was forged one and had been produced by tenant to defeat ejectment order-­Rent Controller dismissed the execution application---Validity---Alleges agreement, even if assumed to have been executed by parties, was invalid a the same did not satisfy requirements of Explanation to S.22 of Sindh Rented Premises Ordinance, 1979---Order of Rent Controller passed without complying with requirements of law was set aside by High Court being illegal and ill-founded.

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

----Ss. 22 & 15---Civil Procedure Code (V of 1908), O.XXI, R.2--­Execution proceedings---Execution proceedings relating to order of ejectment ---No payment, compromise or agreement would be acceptable or legal, unless such payment, compromise or agreement was made before the Authority passing the order or with its- permission.

Abdul Qayyum v. Muhammad Azeem PLD 1994 Kar. 319; Mehmood Elahi Farooqui v. Messrs United Bank Limited PLD 1988 Kar. 133; Alam Khan v. Muhammad Ramzan 1995 MLD 429 and Muhammad Shafiq and 3 others v. Gulber Khan and another 1984 CLC 2735 ref.

Abdul Nameem for Appellant. S. Manzar Alam for Respondent.

Date of hearing: 2nd November, 2000.

P L D 2001 Karachi 127

Before Syed Ali Aslam Jafari, J

UMER KHAN and others---Plaintiffs

versus

PAKISTAN and others---Defendants

Suit No. Nil of 2000, decided on 3rd November, 2000.

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

----Ss. 42 & 56---Suit for declaration and permanent injunction--­Maintainability---Party could not insist that his case should be heard at a particular place or by a particular Judge or Bench---Any such direction in the form of declaration or injunction would be violative of Ss.42 & 56 of Specific Relief Act, 1877.

Philips Electrical Industries of Pakistan Limtied v. Pakistan and others 2000 YLR 2724 ref.

(b) Administration of justice---

---- Legal position could not be changed or altered on compassionate grounds.

Muhammad Farough Naseem for Plaintiff.

Date of hearing: 30th October, 2000.

P L D 2001 Karachi 130

Before Muhammad Moosa K. Leghari, J

MUHAMMAD SHAFQUAT RAFIQUI---Appellant

versus

Shaikh SANAULLAH---Respondent

First Rent Appeal No.684 of 1999, decided on 24th November, 2000.

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

----S. 15(2)(vii)---Bona fide personal need of landlord---Proof---Landlord who was retired and a sick person was running his business in a rented premises and had neither any other source of income nor any other premises for running his business---Landlord, in circumstances, had proved his personal bona fide need in respect of premises in question---Merely because landlord in his ejectment application did not disclose nature of business for which he wanted to utilize the premises, would not be a ground to disallow prayer of landlord.

1989 SCMR 1366; 1986 SCMR 380; 1987 CLC 686; 1998 MLD 377; 1992 MLD 2488; 1997 MLD 98; 1991 SCMR 2300; Juma Sher v. Shaz Ali 1997 SCMR 1062 and Messrs F.K. Irani & Co. v. Begum Feroz. 1996 SCMR 1178 ref.

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

----S. 15(2)(vii)---Bona fide personal need of landlord---Landlord was entitled to use his property without any restraint as right of landlord to acquire and possess a property was guaranteed under Constitution of Pakistan (1973), unless tenant was able to show by leading a tangible evidence that ground of personal need taken by landlord was not coupled with good faith.

Ibn-e-Sultan & Co. for Appellant.

Afaq Yousuf for Respondent.

Date of hearing; 2nd November, 2000.

P L D 2001 Karachi 135

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

MUHAMMAD ASLAM---Petitioner

versus

INCHARGE N.L.C. CENTRE, KHAIRPUR---Respondent

Constitutional Petition No.D-87 of 1998, decided on 4th October, 2000.

Pakistan Army Act (XXXIX of 1952)---

----Ss. 2, 5 & 7---Notificaiton No.120/19/78-Min, dated 12-8-1978--­Constitution of Pakistan (1973), Art.199(3)---Constitutional petition---Maintainability---National Logistic Cell controlled by Army Officers and persons acting therein being members of Armed Forces would be governed by provision of Pakistan Army Act, 1952---Civil offences committed by civilians having nexus with the Armed Forces were triable by the Military Courts---Jurisdiction of High Court in respect of such persons was barred under Art. 199(3) of Constitution of Pakistan (1973)---Constitutional petition was not maintainable being coram non judice.

Force Commander, Airport Security Force. Karachi and others v. Haji Muhammad Rashid and another 1996 SCMR 1614; Dr. Aon Muhammad Khan v. Lt.-Gen. (Retd.) Saeed Qadir and others PLD 1987 SC 490; Brig. Com. Headquarters Field Command, NLC, Karachi v. The State 1996 MLD 469; Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Sh. Liaqat Hussain and others v. Federation of Pakistan and others PLD 1999 SC 504; Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286 and Federation of Pakistan and 2 other v. Khurshid Ahmed 1999 SCMR 664 ref.

Sardar Akbar F. Ujjan for Petitioner.

Abdul Rauf Khan for Respondents Nos. 1 and 2.

Shaikh Abdul Ghani, D.A.G. and Zawar Hussain Jafferi; Addl. A.­G. (on Court's Notice)

P L D 2001 Karachi 143

Before Sabihuddin Ahmed, J

ANZ GRINDLAYS BANK LTD. ---Plaintiff

versus

SAADI CEMENT COMPANY LIMITED and 2 others---Defendants

Suits Nos.B-60 and B-61 of 2000, decided on 29th February, 2001.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)

----S. 10---Recovery of bank loan---Leave to defend the suit---Plaint not signed by authorised person---Question of law---Failure to take a plea in application under S.10 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997---Effect---Non-signing of the plaint by authorised person was not only a question of law but also a question of fact---Where the plea was not raised in the application, the same could not be argued before the Court.

United Bank Ltd. v. Shahyar Textile Mills. Ltd. 1996 CLC 106 ref.

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

----Art. 95---Banking Companies.(Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), S.9---Filing of power of attorney attested by Notary Public---Validity---Notary Public before the attestation and authentication of the power of attorney had satisfied himself that the persons who were executing the power of attorney were authorized officers of the company---Presumption was of regularity of official acts regarding execution and authentication of the power of attorney, which took the same as valid and effective under the provisions of Art. 95 of Qanun-e-Shahadat, 1984.

(c) Islamic Jurisprudence ---

----Financing in Islam ---Musharakah---Meaning---Musharakah is a relationship established by parties to undertake some specific business venture or to undertake business generally as partners through a mutual contract wherein proportion of profit to be distributed between the partners must be agreed at the time of affecting the contract which must conform to ratio of capital invested by them and in which each partner agrees to bear the loss exactly according to ratio of his investment.

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S. 9---Recovery of bank loan---Term Finance Agreement whether a type of Musharakah---Where the parties to the agreement had nowhere stated that they were entering into a relationship as partners and would share or distribute the profits of the business in agreed proportion, such agreement forming the basis of relationship between the parties showed that the agreement was not a Musharakah (partnership agreement).

(e) Islamic Jurisprudence---

----Financing in Islam ---Murabahah (Bai Mu'ajjal)---Meaning---Murabahah is a sale on deferred payment basis which is also termed as agreement for sale on credit.

(f) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----Ss. 9 & 10---Recovery of Bank loan---Application for leave to defend the suit---Force Majeure, plea of---Absence of Force Majeure clause in the agreement between the parties---Effect---Where no such clause was present in the agreement, the plea of Force Majeure was not available to the borrower---No serious and bona fide dispute had been raised by the borrower for the grant of leave to defend the suit---Availing of the facility, execution of the documents and liability to pay had not been disputed by the borrower---Application for leave to defend was dismissed---Suit was decreed in circumstances.

Messrs Muhapimad Sadiq Muhammad Umar v. The Australasia Bank Ltd. PLD 1966 SC 684; Khan Iftikhar Hussain Khan of Mamdot (presented by 6 Heirs) v. Messrs Ghulam Nabi Corporation Ltd. PLD 1971

SC 550, Government of Pakistan v. Premier Sugar Mills and others PLD 1991 Lah. 381; United Bank Ltd. v. Shahyar Textile Mills Ltd. 1996 CLC 106; Halsbury's Laws of England; Performing Right Society v. Indian Morning Restaurant AIR 1939 Bom. 347; Wali Muhammad Chaudhari and others v. Jamal Uddin Chaudhri AIR 1950 All. 534; Jugraj Singh and another v. Jaswant Singh and others AIR 1971 SC 761; Muhammad Aslam v. Mst. Gulraj Begum 1989 SCMR 1; Central Bank of India v. Tajuddin Rauf 1992 SCMR 846; Mrs., Jannat Bi Khan v. Messrs National Motors Co. 1991 CLC 1950; Khyarn Films v. Bank of Bahawalpur 1982 CLC 1275; Lal Baz v. .Gulan 1989 CLC 8; Askari Commercial Bank Ltd. and others v. Pakland Cement and others PLD 2000 Kar. 246 and Mian Munir Ahmed v. United Bank Ltd. and 3 others PLD 1998 Kar. 278 ref.

(g) Words and phrases---

......????? Musharaka"---Meaning.

(h) Words and phrases---

......????? Murabahah (Bai Mu'ajjal)"---Meaning.

Kamal Azfar and Neel Keshav for Plaintiff.

Ch. Muhammad Iqbal for Defendants.

P L D 2001 Karachi 158

Before Zahid Kurban Alavi, J

AIRPORTS DEVELOPMENT AGENCY LTD---Plaintiff

versus

Messrs M.Y. CORPORATION and others---Defendants

Suit No.552 of 1995, decided on 26th August, 1998.

Arbitration Act (X of 1940)---

----Ss. 14, 17, 30 & 33---Limitation Act (IX of 1908), Art. 158---Objections to award---Limitation---Delay in filing the objections---No application was filed for condonation of delay---Effect---Objections to award had to be filed within thirty days and if filed beyond statutory period, then the objections could not be taken into consideration especially in absence of any application for condonation of delay and possible justification as to why the objections were not filed within prescribed time---Award was made rule of Court.

1998 MLD 659; 1987 MLD 416; PLD 1984 Pesh. 2 and 1983 SC'MR 716 ref.

Nemo for Plaintiff.

Syed Sami Ahmed alongwith M.A. Baig and Jawed Rata for Defendants.

P L D 2001 Karachi 159

Before Muhammad Ashraf Leghari, J

GHULAM NABI---Appellant

versus

GHULAM SARWAR---Respondent

First Rent Appeal No.S-6, Civil Miscellaneous Applications Nos.35 and 36 of 2000, decided on 15th May, 2000.

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

----Ss. 2(t)(i) & 15(2)(ii), (vii)---Landlord and tenant, relationship of--­Default in payment of rent---Bona tide personal need of landlord---Tenant denied existence of relationship of landlord and tenant between the parties and claimed that he himself was owner of premises in question---Tenant could not prove by oral or documentary evidence that he was the owner of premises in question, whereas landlord had produced tenancy. agreement signed by the parties showing that tenant had taken premises on rent from the landlord---Attesting witnesses of said agreement examined before. Rent Controller had unrebuttedly supported the execution of the rent agreement--­Competent Authority had also issued certificate showing that premises belonged to the landlord---Tenant who had failed to show any ownership document in his favour, had also failed to pay rent to the landlord---Landlord had not only proved his ownership in respect of premises in question, but had also proved his personal bona fide need in respect of the premises---Rent Controller rightly ordered ejectment of tenant in the circumstances.

Muhammad Anwar Durrani for Appellant.

P L D 2001 Karachi 162

Before Anwar Mansoor Khan, J

SARFRAZ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.803 of 1999, decided on 20th December, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/34---Bail, grant of--­Accused was nominated by deceased himself before his death---Motive was evident from the F.I.R. in which it was stated that there was a dispute between the parties and the accused had come to the house of the deceased to fight with him---Question as to whose "wooden Patties" had inflicted fatal blow to the deceased, could not be looked into for the purpose of the bail as it would amount to a deeper appreciation of evidence ---F.I.R. was promptly recorded and the timing in the F.I.R. would not be of much avail---Ocular version was supported by the medical report---Accused having committed ex facie a non-bailable offence within the prohibitory clause of S.497 Cr.P.C he was not entitled to be admitted to bail, Jaffar and others v. The State 1980 SCMR 784; Muhammad Aslam and another v. The State 1997 SCMR 251; State Bank of Pakistan v. Messrs Samdad Commercial Complex International (Pvt.) Ltd. and 2 others 1995 PCr.LJ 1274; Sadain and Zahid v. The State 1998 Cr.LJ 534; Amir v. The State PLD 1972 SC 277 and Manzoor and 4 others v. The State PLD 1972 SC 81 ref.

Syed Madad Ali Shah for Applicant.

Khadim Hussain Unar for the Complainant.

Azhar Ali Tunio for the State.

P L D 2001 Karachi 165

Before Muhammad Ashraf Leghari, J

HAFEEZULLAH---Appellant

versus

SUHAIL MAHMOOD and 8 others---Respondents.

First Rent Appeal No.9 of 2000, heard on 1st June, 2000.

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

----S. 15(2)(ii)---Default in payment of rent---Burden of proof---Initial burden of proof lay upon-landlord to establish that tenant had not paid or tendered rent---If the landlord had once stated in the Court in affidavit that the rent had not been paid to him by tenant, then burden would shift to the tenant to prove affirmatively that he had paid or tendered the rent to landlord---Landlord who examined himself had testified in Court on oath that tenant had failed to pay or tender rent to him---Evidence of landlord remained unrebutted and tenant had failed to prove by producing any documentary evidence that he had paid rent to the landlord---Tenant had also admitted that he was not paying or tendering rent in the Court---Tenant was rightly found to be defaulter of rent by Rent Controller in circumstances.

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

----S. 15(2)(vii)---Bona fide personal need of landlord---Landlords by adducing evidence on record had proved that two of the landlords who were married had children and remaining though were unmarried, but were grown up and had reached their marriage stages but could not contract marriages for want of proper accommodation---Testimony of landlords was neither shattered nor tenant could adduce any evidence contrary to the same--­Ejectment order passed against tenant by Rent Controller being just and proper, could not be interfered with in circumstances.

Noor Muhammad Soomro for Appellant.

Date of Hearing: 1st June, 2000.

P L D 2001 Karachi 169

Before Ghulam Nabi Soomro and Syed Zawwar Hussain Jaffery, JJ

GHULAM HUSSAIN JEELANI---Petitioner

versus

GOVERNMENT OF SINDH---Respondent

Constitutional petition No.D-971 of 2000, decided on 9th December, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 154 & 200---Penal Code (XLV of 1860), S.302---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11/16---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability--­Registration of counter-case---Deceased lady was abducted and case under Ss.11/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was pending against the petitioners and during pendency of said case, abductee having been murdered, her uncle filed F.I.R. against the petitioners within two hours of the incident and petitioners were challaned for murder of the abductee---Counter-case filed by petitioners against respondents was dismissed by Trial Court and petitioners had challenged order of Trial Court by a Constitutional petition---Validity---Petitioners had an alternate remedy of filing private complaint in the Court---Police Officers in their comments had strongly refuted the contents of Constitutional petition and termed the same as wrong and false---Police Officer could arrest even the complainant as an accused person if during investigation he had come across material and evidence which connected the complainant with commission of crime--­Petitioners having failed to avail remedy of filing fresh complaint under S.200, Cr.P.C. which was an effective and adequate remedy, High Court refused to exercise discretion in favour of the petitioners---Constitutional petition was dismissed being not maintainable.

Ghunwa Bhutto v. Government of Sindh PLD 1997 Kar. 119; 1983 SCMR 436; PLD 1988 Kar. 521 and 1993 PCr.LJ 1056 ref.

Muhammad Ashraf Qazi for Petitioner.

Ali Nawaz Memon for Respondents.

Habib Ahmed, A.A.-G. for the State.

P L D 2001 Karachi 172

Before Muhammad Ashraf Leghari, J

SHAH MUHAMMAD ---Appellant

versus

GHULAM MUHAMMAD ---Respondent

First Rent Appeal No.426 of 1998, decided on 26th December, 2000.

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

----S. 15(2)(vii)---Bona fide personal need of landlord---Landlords had stated on oath that they needed the premises for their personal bona fide use it good faith and their testimonies were not shaken in cross-examination-­Original burden to prove personal bona fide need in good faith lay upon landlords, but when the same was deposed through a tangible evidence by them on oath which was in line with pleadings, the burden would shift to the tenant to rebut the same---Evidence on record had shown that landlords who owned no other property, were in need of premises in question for running their own business---Need and the choice of the landlords were not to be judged by the tenant if the evidence adduced by the landlords was in conformity with the pleadings---Requirement of landlords could not be determined by the tenant---Allegations of mala fides levelled by tenant against landlords being based upon no documentary evidence, were not tangible---Bona fide personal need of landlords in respect of premises in good faith having been established, Rent Controller rightly ordered ejectment of tenant.

Qamruddin through Legal Heirs v. Hakim Mahmood Khan 1988 SCMR 819; Abid Masood and others v. Dilshad Khan 1995 SCMR 146; S.M. Nooruddin and 9 others v. Saga Printers 1998 SCMR 2119; Muslim Commercial Bank Limited, Karachi v. Haji Shaikh Yaqinuddin and 2 others PLD 1992 Kar. 314; Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185; Haroon Kassam and another v. Azam Suleman Madha PLD 1990 SC 394; Edulji Dinshaw Limited v. Income Tax Officer PLD 1990 SC 399; Jehangir Rustom Kakalia v. State Bank of Pakistan 1992 SCMR 1296; Abdul Karim v. Abdul Karim 1992 SCMR 1300 and Bashir Ahmed v. Muhammad Shafi 1989 SCMR 538 ref.

Aftab Ali Khan for Appellant.

Syed Muhammad Hyder for Respondent.

P L D 2001 Karachi 177

Before Faiz Muhammad Qureshi, J

GHULAM ABBAS and 2 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.451 of 2000, decided on 4th December, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-H(2), 459 & 511---Bail, grant of---Complainant who had named the accused specifically in the F.I.R. had nowhere stated that the accused were known to him intimately--­Complainant party had lodged the F.I.R. after delay of one day---If the complainant knew the names of the accused persons, he was supposed to go to police station immediately to lodge F.I.R. and there was no justification to get the F.I.R. registered with delay, possibility, thus, could not be ruled out that sometime had been consumed by the complainant in consultation--­Delay of eleven days in arresting the accused was not explained by the prosecution and the weapons recovered from the accused 'had not been sent to the Expert---Prosecution had collected the weakest type of evidence and had injected the elements of suspicion in its own version---Case of the accused, thus, had become a case of further inquiry---Accused having been able to make out a good prima facie case for grant of bail, they were admitted to bail.

PLD 1985 Kar. 27; 1991 PCr.U 4; PLD 1995 SC 34; 1991 PCr.U 882; 1998 PCr.U 602 and 1997 PCr.U 646 ref.

S. Mushtaque Hussain Shah for Applicants.

Nidamuddin Brohi for the State.

P L D 2001 Karachi 181

Before Faiz Muhammad Qureshi, J

ABDUL SATTAR---Applicant

versus

THE STATE---Respondent

Criminal Revision Application No.93 of 1999, heard on 18th December, 2000.

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

----S. 17(3)---West -Pakistan Arms Ordinance (XX of 1965), S.13-E--­Criminal Procedure Code (V of 1898), Ss.103 & 165---Appreciation of evidence---Search and recovery proceedings---Revision---Recovery was effected after nine days of arrest of the accused and said delay had gone unexplained by the prosecution---Alleged recovery was effected when the accused was in police custody and the recovery was made from the house of the accused where his family members also resided---House, in circumstances, could not be termed to be in exclusive possession of the accused---Prosecution had not filed the Station Diary to strengthen its version that the police alongwith accused left the police station for the purpose of recovery---Non-production of said Diary had caused doubt in- the version of the prosecution---Revolver allegedly recovered from the accused had not been shown to him at the time of recording his statement under S.342. Cr.P.C.---Revolver had neither been sealed at the spot nor sent to the Ballistic Expert---One of the Mashirs who had supported the recovery in the main case, had also supported the recovery in the instant case---Out of two Mashirs bound by police during process of recovery, only one was examined by the prosecution who otherwise was a fast friend of the complainant---No reason was furnished as to why the other Mashir was given up---Gross contravention of provisions of Ss.103 & 165, Cr.P.C. having been committed by prosecution and same having failed to prove its case against the accused beyond reasonable doubt, judgments of Courts below were set aside in revision by High Court.

1997 PCr.U 818; Farid Ahmad Langhra v The State 1998 PCr.LT­1368; Arif Khan v. The State 1998 PCr.U 1287 and Muhammad Mansha v. The State 1995 SCMR .1414 ref. , A.M. Mobeen Khan and Muhammad Daud Baloch for Applicant.

Abdul Sattar Soomro for the State.

Date of hearing: 18th December, 2000.

P L D 2001 Karachi 185

Before Ali Muhammad Baloch and S. Ahmed Sarwana, JJ

Messrs SHAKIL WAQAS & CO. and others---Petitioners

versus

GENERAL MANAGER/MARKETING, PAKISTAN RAILWAYS and others---Respondents

Civil Petition No. D-180 of 1993, decided on 22nd January, 1999

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

----Ss. 21(a) & 56(f)---Specific performance of contract---Injunction, issuance of---Compensation in money, adequate relief---Effect---Contract for the non-performance of, which compensation in money is adequate relief, the same cannot be specifically enforced---Under the provisions of S.21(a) of Specific Relief Act, 1877---Injunction, under the provisions of S.56(f) of Specific Relief Act, 1877, cannot be granted to prevent breach of contract, the performance of which would not be specifically enforced.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Contractual liability ---Dispute was with regard to contract of City Booking Agency of Pakistan Railway which was purely a commercial transaction between Pakistan Railways and the petitioner---Contractual rights and obligations must be enforced through the ordinary Civil Courts and Constitutional petition under Art. 199 of the Constitution could not be used for the purpose of enforcing commercial obligation.

1968 SCMR 1136; PLD 1992 Kar. 283; Government of Punjab v. Rao Shamshair Ali Khan and others 1987 SCMIR 222; Abdul Hamid v. Sub­Divisional Magistrate City and Tribunal, Hyderabad PLD 1977 Kar. 575; Abdul Karim v. Secretary, Government of Sindh and others PLD 1977 Kar. 802 and Abdul Saeed and another v. Khalil-ur-Rehman and others 1987 SCMR 410 distinguished.

(c) Administration of justice---

---- No person including a Minister is above the law and any order passed by a Minister in violation of law has no sanctity in law:

(d) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Natural justice, principles of--­Cancellation of contract---Where the contract was awarded against the Rules and the Authorities to rectify their wrong cancelled the contract, so as to bring the same in line with other contracts, such act of the Authorities .was approved by the High Court with the observations that Authorities could not be accused of violating any law or having issued the notice of termination in' violation of principles of natural justice.

(e) Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2--­Constitutional petition---Interim injunction, grant of---Contractual liability---Unclean hands---Cancellation of contract---Dispute was with regard to cancellation of City Booking Agency of Pakistan Railways---Agency was given in violation of rules and on the recommendation of the Minister--­Authorities cancelled the Agency of the petitioner and invited the bids for open auction of the Agency---Validity---All citizens are equal in the eyes of law and every citizen should be given an equal opportunity to compete for the agency which would be to the advantage of Pakistan Railway and in consonance with law---High Court declined to pass any injunction restraining the Authorities from following the Injunctions of Islam, the provisions of the Constitution and the transparency and good governance---Action of the Authorities in rectifying the past mistakes and making efforts to give the contract afresh was in accordance with law and the Authorities should not be restrained from doing so---Petitioner had not come to the Court with clean hands and had used the process of the Court to impede the process of justice, transparency and good governance---Petition was misconceived, mala fide, abuse of the process of Court and not maintainable---Petition was dismissed in circumstances.

Director-General Health v. Mazharul Qayum PLD 1959 SC (Pak.) 45; Shaukat Ali and others v. Government of Pakistan PLD 1997 SC 342 and PLD 1973 Note 150 at p.230 ref.

Ghaiyasud4in Baig for Petitioner.

Syed Jahangir H. Shah for Respondents.

Date of hearing: 19th November, 1998.

P L D 2001 Karachi 194

Before Faiz Muhammad Qureshi, J

GULZAR AHMED and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.65 of 1988, heard on 20th December, 2000.

Penal Code (XLV of 1860)---

----Ss: 307/34---Criminal Procedure Code (V of 1898), Ss.342, 364 & 367--­Appreciation of evidence---Statements of the accused recorded under S.342, Cr.P.C. did not bear their signatures---Presiding Officer after examination of accused had not given the necessary certificate thereon in his own handwriting---Impugned judgment had not been written by the Trial Court in accordance with the provisions of S.367, Cr.P.C.---Trial Court had not considered the entire evidence on record while passing the judgment--­State Counsel had no objection to the remand of the case---Conviction and sentence of accused were set aside in circumstances and the case was remanded to Trial Court with the direction to continence the proceedings from the stage of recording the statements of accused under S.342, Cr.P.C. and to re-write the judgment in accordance with the mandatory provisions of S.367, Cr.P.C.

Zahida Lanjar for Appellant.

Abdul Sattar Soomro for the State.

Date of hearing: 20th December, 2000.

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P L D 2001 Karachi 203

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

ALLIED BANK OF PAKISTAN LTD.---Petitioner

versus

THE WAFAQI MOHTASIB (OMBUDSMAN) and others---Respondents

Constitutional Petition No. 158 % of 1992, decided on 1st February, 2001.

(a) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983)---

----Arts.9, 10(5) & 29---Civil Procedure Code (V of 1908), S.1---Qanun-e­Shahadat (10 of 1984), Art.l---Proceedings before Wafaqi Mohtasib---Not judicial, in nature---Provisions of C.P.C. and Qanun-e-Shahadat, 1984--­Applicability---Establishment of the Office of Wafaqi Mohtasib---Object--­Proceedings before Wafaqi Mohtasib are not judicial in nature and provisions of C.P.C. and Qanun-e-Shahadat, 1984, are not applicable ---Mohtasib can adopt such procedure as he considers appropriate for investigation and can make such inquiries as he thinks fit under Art. 10(5) of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983--­Technicalities and niceties of the civil litigation in judicial proceedings, are not attracted to the proceedings before Wafaqi Mohtasib because the institution of Wafaqi Mohtasib has been established to provide speedy and expeditious relief to the people outside the judicial hierarchy in order to avoid the proverbial delay in the dispensation of justice.

(b) Constitution of Pakistan (1973)---

----Art. 199---Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. I of 1983), Arts. 9 & 10---Constitutional jurisdiction of High Court---Proceedings before Wafaqi Mohtasib---Interference by High Court--­Scope---Where anything is done, any action is taken or is purported to have been taken, made or done under the provisions of Establishment of the Office of Wafaqi Mohfasib (Ombudsman) Order, 1983, without jurisdiction, the High Court has the jurisdiction to declare the same as illegal, without lawful authority and of on legal effect.

National Bank of Pakistan v. Wafaqi Mohtasib PLD 1992 Kar. 3.39 ref.

(c) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983)---

----Art. 10(5)---Constitution of Pakistan (1973), Art. 199---Assumption of jurisdiction by Wafaqi Mohtasib---Objection to---Burden to prove---Burden to show that any action has been taken or any act has been done by assumption of jurisdiction not vested in the Wafaqi Mohtasib is always on the person alleging the lack of jurisdiction so as to warrant interference-by High Court in Constitutional jurisdiction.

(d) Establishment of the Office of Wafaqi Mdhtasib (Ombudsman) Order (P.O. 1 of 1983)---

----Arts.' 9 & 10---Constitution of Pakistan (1973), Arts.24 & 199--­Constitutional - petition ---Maladministration---Proceedings before Wafaqi Mohtasib---Abatement of proceedings---Denationalisation of Bank---Account holders were deprived of their money and the Bank was responsible for the same---Bank was denationalised during the pendency of the proceedings before Wafaqi Mohtasib---Objection was raised to the jurisdiction of Wafaqi -Mohtasib---Validity---Jurisdiction once acquired by Wafaqi Mohtasib would continue till the conclusion of the proceedings, notwithstanding the denationalisation of the Bank---When the account holders were deprived of their money as a result of maladministratioh, the Bank was an agency and even at the time of assuming of the jurisdiction by. Wafaqi Mohtasib the Bank still was an agency---Until and unless there was any law declaring that on denationalisation the Bank, the proceedings pending before Wafaqi Mohtasib would stand abated, the proceedings would be deemed to be pending and continuing---Bank could not wriggle out of the responsibility for maladministration and could not be absolved of the maladministration resulting in deprivation of the account holders of their valuable right of protection of property---Order passed by Wafaqi Mohtasib being with proper jurisdiction, Constitutional petition was dismissed.

National Bank of Pakistan v. Wafaqi Mohtasib PtD 1992 Kar. 339 distinguished.

Muhammad Muzaffarul Haque for Petitioner.

Date of hearing: 17th January, 2001.

P L D 2001 Karachi 211

Before S.A. Rabbani, J

ARSHAD HUSSAIN---Petitioner

versus

THE STATE----Respondent

Criminal Bail Application No. 1292 of 2000, decided on 9th January 2001

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

----Ss. 87 & 88---Proclamation for person absconding and attachment of his property---Issuance of a warrant against the accused person is a precondition for proclamation or proceeding under Ss. 87 & 88, Cr.P.C. against him.

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

----S. 173---Report of police officer---Essentials---Essentials of a challan produced by the police before the Trial Court include a description of the offence committed production of the accused before the Court and the evidence/witnesses to prove the offence---Trial Court can start the trial only when all these three are produced before it.

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

----Ss. 173, 87, 88 & 512---Issuance of warrants by Trial Court against absconder not mandatory---No provision. of law in the Code of Criminal Procedure makes it mandatory for the Trial Court to issue warrants against an alleged accused person mentioned in the report by the police as absconder---Investigation agencies by mentioning the absconded accused in the report attempt to shift their responsibility to the Courts which is not in line with the law.

Raghunath Puri and others v. Emperor AIR 1932 Pat. 72; Gopal Marwari and others v. Emperor AIR 1943 Pat. 245 and Bacha Said v. The State PLD 1978 SC 102 ref.

(d) Criminal trial---

Commencement of---Guidelines to avoid unnecessary delay in trial--­Criminal Courts are advised to start trial against the accused produced before them by ignoring mention of alleged absconders in the police report where their parentage and addresses are not known and ordering separation of trial against the alleged absconders when their parentage and addresses are given in the police report.

In the interest of justice and to avoid unnecessary delay in trials, Criminal Courts in the Province may be advised to start trial against the accused produced before the Court, by--

(i) ignoring mention of alleged absconders in the police report where their parentage and addresses are not known; and

(ii) ordering separation of trial against the alleged absconders when father's name and address is mentioned in the police report.

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

----S. 497(1), third proviso---Penal Code (XLV of 1860), S. 302---Bail or ground of statutory delay---Accused was -in custody for the last more than five years and even the charge had not yet been framed against him by the Trial Court---Accused, thus, had earned a -legal right to bail which could not be defeated by the fact that police had involved him in other cases also---Bail was allowed to accused accordingly.

Raghunath Puri and others v: Emperor AIR 1932 Pat. 72; Gopal Marwari and others v. Emperor AIR 1943 Pat. 245 and Bacha Said v. The State PLD 1978 SC 102 ref.

Agha Zafir for Petitioner.

Sharafat Ali Khan for the State.

Date of hearing: 8th January, 2001.

P L D 2001 Karachi 218

Before Muhammad koshan Essani and Muhammad Ashraf Leghari, JJ

MUHAMMAD ALI ---Petitioner

Versus

FEDERATION OF PAKISTAN and 5 others---Respondents

Constitutional Petition No. D-890 of 2000, decided on 15th November 2000.

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

----Ss. 81 & 82---Constitution of Pakistan (1973), Art.199---Constitutional petition---Notice for recovery of amount as arrears of land revenue--­Disconnection of telephone---Notice and warrant were issued by Authorities to petitioner demanding from him arrears of amount allegedly outstanding against him in respect of telephone and telephones installed in his premises were also disconnected---Petitioner against whom no arrears were outstanding in respect of telephones actually installed in his premises, had contended that he or his family had no concern with the telephone which was installed in the premises adjacent to his premises---Authorities had themselves admitted that no dues in respect of telephones installed in premises of petitioner were outstanding against him---Amount, if any, was due, it was in respect of telephone installed in the other premises to which petitioner had no concern---Merely because said premises was adjacent to the premises owned by petitioner, petitioner could not be saddled with the responsibility or any illegal act committed by any other person---Action taken by Authorities against petitioner which was arbitrary and in excess of the authority, notice and warrant issued to the petitioner were declared to be illegal and ultra vires by High Court in exercise of its Constitutional jurisdiction and telephones of petitioner were ordered to be restored.

Saifuddin Shah for Petitioner.

Abdul Sattar Khokhar for Respondents Nos. 3 to 5.

Shaikh Abdul Ghani, Dy. A.-G.

P L D 2001 Karachi 221

Before Muhammad Mujeebullah Siddiqui, J

Messrs AKHTAR BHURGRI ASSOCIATES through Executive Director---Appellant

versus

LAND ACQUISITION OFFICER AND ASSISTANT COMMISSIONER, CITY HYDERABAD ---Respondent

First Appeal No.4 of 1995, decided on 14th November, 2000.

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

----Ss. 4, 9, 11, 12, 18, 25 & 28-A---Acquisition of land---Determination of market value and amount of compensation---Reference to Court ---Land­owner who was served with notice under S.9(3) of Land Acquisition Act, 1894 did not file any claim supported with documentary evidence with regard to the market value of land and its future potentiality and Collector passed the award taking into consideration the market value of land on well established principle of last five years sales of land in the vicinity--­Landowner despite service of notice having failed to file any particular claim specifying the amount of compensation before passing of award without sufficient reasons could not ask the referee Court to award more compensation than the Collector had already awarded particularly in absence of any evidence on the point of market value of the land---Referee Court had rightly dismissed reference, holding that the compensation awarded to landowner by Collector was adequate and proper---Referee Court, however, should have awarded additional compensation, under S.28-A of Land Acquisition Act.

1991 MLD 90; 1985 SCMR 45; PLD 1986 Kar. 164; 1985 SCMR 45; 1997 SCMR 1692; PLD 1998 SC 32; 1996 SCMR 1820; 1992 CLC 1775; 1993 CLC 179; 1991 MLD 90; 1994 CLC 160; Abdullah and others v. Assistant Commissioner and Land Acquisition Officer, Hyderabad and another (unreported); Muhammad Sharif v. Afsar Textile Mills Ltd. 1985 SCMR 1181; Secretary of State v. C.R. Subramania Ayyar AIR 1950 Mad. 576: Province of Bengal v. Ram Chandra Bhutika and others AIR 1994 Cal. 247; Land Acquisition Officer, Karachi v. Hiranand Lilaram AIR 1941 Sindh 52; Secretary of State v. Tikka Jagtar Singh AIR 1936 Lah. 733; Province of Bengal v. P.L. Nun AIR 1945 Cal. 312 and Pakistan through Secretary, Ministry of Defence and another v. Nizakat Shah and 7 others 1987 CLC 1844 ref.

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

----Ss. 4, 9, 11, 18 & 25---Acquisition of land---Determination of compensation and market value of land---Reference to the Court---Collector before giving award was required to hold enquiry under S.11, Land Acquisition Act, 1894---Claim as was required to be preferred and the particulars of the claim, were in the nature of pleadings on behalf of claimant which could form foundation for subsequent inquiries including inquiry under S.11, Land Acquisition Act, 1894 by the Collector and reference made to the Court under S.18 of the Act---Collector was required to confine the inquiry to the pleadings and the Court was also required to consider and to determine the amount of compensation on the, basis of specific claim preferred before the Collector---If no claim was preferred or no particulars and details of the compensation were filed in reference to notice under S.9(3) of Land Acquisition Act, 1894 and the objection was filed before the Court in general nature, the stringent condition contained in S.25(2) of the Act, would come into play and would preclude the Court from awarding any compensation exceeding the amount awarded by the Collector.

Sunderdas for Appellant.

Masood A. Noorani, Addl. A.-G. for Respondent.

Date of hearing: 1st November, 2000.

P L D 2001 Karachi 233

Before Muhammad Mujeebullah Siddiqui, J

SHAHID JAMSHAD---Applicant

versus

THE STATE---Respondent

Criminal Ball Application No. 1115 of 2000, decided on 30th November, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.392, 457, 380 & 34---Baii, grant of---Bail was sought on the grounds of consistency and statutory reasons of delay---Accused contended that co-accused had been enlarged on bail and that he had already completed twenty-four months in custody ---Validity---Rule of consistency required that facts and circumstances should be similar which condition had not been met in the case of accused as the case of co­accused was distinguishable---Statutory ground of delay was also not available to the accused as he was hardened, desperate and dangerous criminal because he had not only snatched car on the pistol point, but had also committed house-breaking---Accused in circumstances was not entitled to bail.

Manzoor Ahmed for Applicant.

Sharafat Ali Khan for the State.

P L D 2001 Karachi 235

Before Muhammad Roshan Essani, J

Mst. HAMEEDA BEGUM---Applicant

versus

S.H.O., POLICE STATION ROHRI and others---Respondents

Criminal Miscellaneous Application No.332 of 2000, heard on 27th November, 2000.

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

----S. 107---Security for keeping peace---Condition precedent for taking cognizance and proceedings under 5.107, Cr.P.C. was that information was received by Magistrate which had constituted apprehension of breach of peace or disturbance in public tranquillity---Such information must be clear, unambiguous containing tangible facts justifying an action against the person complained of---Proceedings under S.107, Cr.P.C. were not penal, but punitive---Magistrate upon receiving the information had to record reasons for passing preliminary order---Merely because the parties were not compromising in the matter relating to monetary transaction, would not warrant action under S.107, Cr.P.C.---Magistrate was not required to act upon the police report mechanically without applying his judicial mind and discretion vested in him---Proceedings under Chap.VIII of Criminal Procedure Code, 1898 being judicial same should be conducted in accordance with law.

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

----Ss. 107, 112 & 114---Security for keeping peace---Summons or warrant in case of person .not present in the Court---If a person against whom order under S.112, Cr.P.C. was passed was not present in the Court, the Magistrate was required under S.114, Cr.P.C. to issue a summons in the first instance for his appearance before the Court---If the Magistrate was of the opinion that there was imminent apprehension of breach of peace which could not be averted, the Magistrate could issue a warrant for the arrest of the person---For issuing warrant, it was required by law that Magistrate had to assign reasons in writing for taking that extraordinary step.

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

----Ss. 112, 114 & 115---Issuance of summons or warrant---Provisions of S.115, Cr.P.C. had envisaged that every summons or warrant issued under S.114, Cr. P.C. should be accompanied by a copy of order under S.112, Cr.P.C.---Non-compliance of mandatory provisions of S.115, Cr.P.C. vitiated the proceedings---Wisdom of the Legislature enacting said provision of law appeared to be that the respondent must know the reasons for the curtailment of his liberty and he should adduce the evidence to rebut the allegations made against him in the report---Human liberty was cherished one and non-compliance of said provision of law would vitiate the proceedings.

Miss Zahida Nizam for Applicant.

Mumtaz Ali Siddiqui for the State.

P L D 2001 Karachi 238

Before S.A. Rabbani, J

MEHBOQB ALAM---Appellant

versus

Miss TEHSEEN SHAFQAT KHAN and others---Respondents

First Rent Appeal No.21 of 2001, decided on 20th February, 2001.

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

----S. 15---Bona fide personal need of landlord ---Ejectment of tenant---Filing of ejectment application through attorney---Evidence of attorney---Non­appearance of landladies as witness---Effect---Landladies had not directly informed the Rent Controller about their intention to use the premises--­Ejectment application was neither filed by the landladies themselves nor they had filed their affidavit---Application was filed through the attorney and evidence was also given by the attorney---Attorney's examination before Rent Controller was only evidence of a witness which could only be used for corroboration of a version of the landladies---Evidence of attorney that the landladies needed the premises for their use was only a hearsay evidence---Not necessary fir a landlord to appear for evidence to assert his plea of bona tide requirement, but it was necessary for him, at least to approach the Rent Controller through his application and put his plea that he required the premises for personal use---Plea and evidence of the attorney, in the absence of direct assertion of landladies themselves about their requirement, in the present case, could not be deemed adequate for affirmative inference on the issue of bona fide need of landladies---Findings of Rent Controller could not be maintained and the same were set aside in appeal by the High Court.

Mrs. Kausar Amin for Appellant.

M. Ashraf Kazi for Respondents.

Date of-hearing: 16th February, 2001.

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P L D 2001 Karachi 256

Before Saiyed Saeed Ashhad, C. J. and Sarmad Jalal Osmany, J

NATIONAL ACCOUNTABILITY BUREAU---Appellant

versus

Mst. ZAHIDA SATTAR and others---Respondents

High Court Appeals Nos.281, 282, 283, 284, 285, 286, 287, 288, 289, 290 and 291 of 2000, decided on 26th January, 2001.

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

----S. 13---Freezing of property---Accountability Court, jurisdiction of--­Adjudicating of claims/objections by ostensible owners against freezing of property---Accountability Court; under the provisions of S.13 of National Accountability Bureau Ordinance, 2000 has been given the exclusive jurisdiction to entertain and adjudicate upon all such claims/objections--­Persons who are ostensible owners of the property have to be given notice of the freezing order so that they can file objections, which thereafter would be tried and adjudicated by the Accountability Court.

(b) Natural justice, principle of---

----Nobody can be condemned unheard---Principle of natural justice would be read in every statute, although not specifically provided therein.

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

----Ss. 13 & 32---'Aggrieved person'---Definition---Freezing of property not owned by accused person---Where any adverse finding or order was made against the ostensible owners of the properties, such owners had a right to challenge any adverse order by filing appeals in view of the observations made by Supreme Court in the case of H.M. Saya &Co., Karachi v. Wazir Ali Industries Ltd., Karachi reported as PLD 1969 SC 65---Ostensible owners were to be provided opportunity of defending themselves before Accountability Court, as their properties had been mentioned in the references and charges against the accused person---Such ostensible owners would come within the definition of 'aggrieved person'.

H. M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi PLD 1969 SC 65 ref.

(d) National Accountability Bureau Ordinance (XVIH of 1999)---

----Ss. 13 & 32---Specific Relief Act (I of 1877), S.42---Freezing of property not owned by accused---Remedy against such order of freezing---Assailing the order passed by Accountability Court in civil suit---Validity---National Accountability Bureau Ordinance, 2000, had provided for complete adjudication of the rights of the accused as well as those whose properties had been frozen---Civil suits filed in order to legitimize the private respondents' title over such properties, were misconceived---No declaration/injunction could be given under the Specific Relief Act, 1877, to legitimize the means of acquiring title over the disputed immovable property---Court had wrongly allowed the interim .injunction in favour of the plaintiffs regarding the properties frozen by the Accountability Court--­Appeal by the Authorities was allowed and the suit was dismissed by High Court in circumstances.

Naya Daur Motors (Pvt.) Ltd. v. Federal Investigation Agency, C.B.C., Karachi and another 2000 MLD 1384; National Petrocarbon (Pvt.) Ltd. and 2 others v. Registrar of Trade Unions and 6 others 1989 CLC 1975; PLD 1971 SC 677; Central Cooperative Bank Ltd., Sargodha v. Ahmed Bakhsh PLD 1970 SC 343 and Khalid Mehmood v. Collector .of Customs 1999 SCMR 1181 ref.

(e) National Accountability Bureau Ordinance (XVIII of 1999)---

----S. 12---Specific Relief Act (I of 1877), S.56(e)---Injunction, grant of--­Stay of proceedings in criminal matter---Inquiry as to the- ostensible ownership of the properties and the source of money under the provisions of National Accountability bureau Ordinance, 2000---Embarking upon such inquiry is in violation of S.56(e) of Specific Relief Act, ,1877, which particularly prohibits grant of any injunction to stay proceedings in a criminal matter.

Burewala Textile Mills Ltd., Burewala v. Zeenat Textile Mills Ltd., Lyallpur and 2 others PLD 1978 SC 305 and National Petrocarbon (Pvt.) Ltd. and 2 others v. Registrar of Trade Unions and 6 others 1989 CLC 1975 ref.

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

----S. 12---Freezing of property---Aggrieved person---Remedy---Persons who are aggrieved by such freezing orders can file their objections before the Court under the provisions of S.12 of National Accountability Bureau Ordinance, 2000.

Muneer A. Malik for Appellant.

Abid S. Zuberi for Respondents.

S. Tariq Ali, State Counsel.

M. Sarwar Khan, Addl. A.-G., Sindh

Date of hearing: 2nd November, 2000.

P L D 2001 Karachi 264

Before Anwar Mansoor Khan, J

HABIB BANK LTD. ---Plaintiff

versus

A.B.M. GRANER (PVT.) LTD. and others---Defendants

Suit No. B-122 of 2000, decided on 23rd November, 2000.

(a) Islamic Jurisprudence---

Banking---Term "Bai Muajjal" or "Morabaha agreement" ---Connotation-­In such agreement the sale is made to customers and repayment thereof is deferred---Such deferment is nothing but a debt (credit) payable by the borrower to the Bank.

Muwatta Imam Malik by Noor Muhammad, Karachi, p.613; HBFC v. Rana Muhammad Sharif SLR 515 and Dr. Muhammad Aslam Khaki and others v. Syed Muhammad Hashim and others PLD 2000 SC 225 ref.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S. 9---Recovery of Bank loan---Loan agreement---Non-disbursement of money under agreement---Excise duty and other charges included in liability---Two agreements were signed by the borrower---Amount was disbursed under the earlier agreement while under the latter agreement no money was disbursed by the borrower---Bank claimed recovery of the amount under the subsequent agreement---Validity---Debt had been created under the earlier agreement and that upon the debt having been created by earlier agreement no further increase in any manner could be made---Where no amount was disbursed under the subsequent agreement, the agreement did not contemplate continuation of the earlier agreement---Subsequent agreement was not a valid agreement and the same could not be looked into ---All credits and debits made by the earlier agreement would be looked into and en into blunt-_-Amount excise duty and other charges were included in the liability against the borrower---Suit was decreed accordingly.

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

----S. 23---Contract against public policy---Administration of justice---What could not be done directly, could not be done indirectly and no agreement against public policy was a valid contract.

Ainuddin Khan for Plaintiff.

Muhammad Idris for Defendants.

P L D 2001 Karachi 269

Before Sabihuddin Ahmed and Muhammad Afzal Soomro, JJ

MAZHAR HUSSAIN NAQVI---Petitioner

versus

Dr. ZAFAR H. ZAIDI, VICE-CHANCELLOR, KARACHI UNIVERSITY, KARACHI---Respondent

Constitutional Petition No.D-1779 of 2000, decided on 10th January, 2001.

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

----S. 324---Criminal Procedure Code (V of 1898), S.154--Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of F.I.R.--­S.H.O. allegedly was not prepared to register an F.I.R. in respect of the murderous assault made on the petitioner---Record did not indicate that the petitioner had ever attempted to move the S.H.O. for recording the F.I.R.--­Petitioner had stated that he had been beaten by the accused and he wanted justice to be done and on his letter his medical examination was ordered--­Report of the Senior Medical Officer revealed that the petitioner had not received any injury whatsoever ---S.H.O. although was bound to record an F.I,R., in case the petitioner had approached him, yet any investigation pursuant to the same in the circumstances could not have yielded any purpose ---S.H.O. perhaps would have justifiably declined to investigate the matter and no useful purpose could be served by issuing any direction to him---Constitutional petition was dismissed accordingly.

Choudhry Shah Muhammad v. S.H.O., Rahimyarkhan and others 1977 PCr.LJ 2; Shaikh Ghulam Rasool v. Karamat Hussain and another 1990 PCr.LJ 844; Altaf Hussain v. Government of Sindh PLD 1997 Kar. 600; Haji Muhammad Khan v. Chaudhry Khizir Hayat PLD 1997 Lah. 424; Shaikh Nasim Ahmad- v. D.I.-.G. Police, Sargodha 1985 PCr.LJ 906; Muhammad Ramzan v. &H.O. 1985 PCr.LJ 1081; Qazi Muhammad Jawaid v. Senior Superintendent of Police of Gujranwala NLR 1988 Cr.LJ 141(sic): Said Muhamamd Shah v. The State 1993 SCMR 550; Chan Shah v, State PLD 1969 Pesh. 109; Suleman v. S.H.O., Mitha Tiwana 1982 PCr.LJ 125 and Muhammad Siddique v. Province of Sindh PLD 1992 Kar. 358 ref.

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

----Ss. 154, 155, 156, 157 & 169---Police Rules, 1934, 8.24.1--­Information to police and their powers to investigate---Obligations of Police Officer enumerated.

Following are the principles with regard to recording of First Information Report by the Police:

(1) An information regarding commission of any cognizable or non­cognizable offence must invariably be recorded in writing in terms of sections 154 and 155, Cr.P.C. and Rule 24.1 of the Police Rules.

(2) In case of non-cognizable offences the informant should be referred to a Magistrate and investigation commenced only after receipt of orders from the Magistrate.

(3) With respect to the cognizable offences the Police Officer is required to apply his mind and would not embark upon investigation unless he finds no reasonable ground for doing so. The power to decline to investigate is widely worded but ought to be treated as an exception to the general rule and be exercised on reasonable grounds.

(4) When a Police Officer decides not to investigate a matter he must, apart from informing the concerned Magistrate, communicate his decision to the informant.

(5) The power to arrest a person suspected to have committed a cognizable offence must, however, be exercised only when reasonable grounds for such suspicion are found to exist. The mere fact that some information regarding commission of such offence has been given to the police is not sufficient to cause such reasonable suspicion and the suspicion has to be based on some tangible material.

(6) Even after having entered upon investigation, wide powers are available to the police in not filing a challan in case evidence against an alleged offender is not sufficient. Even a person already arrested can be released under section 169. These powers ought to be honestly exercised.

Choudhry Shah Muhammad v. S.H.O. Rahimyarkhan and others 1977 PCr.LJ 2; Shaikh Ghulam Rasool v. Karamat Hussain and another 1990 PCr.LJ 844; Altaf Hussain v. Government of Sindh PLD 1997 Kar. 600: Haji Muhammad Khan v. Chaudhry Khizir Hayat PLD 1997 Lah. 424; Nasim Ahmad v. D.I.-G. Police, Sargodha 1985 PCr.LJ 906; Muhammad -Ramzan v. S.H.O. 1985 PCr.LJ 1081; Qazi Muhammad Jawaid v. Senior Superintendent of Police of Gujranwala NLR 1988 Cr.LJ 141(sic), Said Muhammad Shah v. The State 1993 SCMR 550 Chan Shah v . State PLD 1969 Pesh. 109: Suleman v. S.H.O., Mitha Tiwana 1982 PCr.LJ 125 and Muhammad Siddique v. Province of Sindh PLD 1992 Kar. 35 euf.

Petitioner in person.

Sarwar Khan, Addl. A.-G. for Respondent

Shoukat Hussin Zubedi: Amicus curiae.

Date of hearing: 5th December, 2000.

P L D 2001 Karachi 279

Before Ghulam Nabi Soomro and Syed Zawwar Hussain Jaffery, JJ

Syed SHOAIB AHMAD BUKHARI---Applicant

versus

THE STATE---Respondent

Criminal Miscellaneous Application No.D-448 of 2000, decided on 19th January 2001.

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

----Ss. 353/427/324/109/34---Explosive Substances Act (XI of 1908), Ss.3 & 4---Criminal Procedure Code (V of 1898), Ss.561-A & 439--­Quashing of proceedings ---Revisional jurisdiction of High Court under S.439, Cr.P.C. and its inherent jurisdiction under S.561-A, Cr.P.C.--­Comparison---Order of Trial Court rejecting application of accused moved under S.249-A, Cr.P.C. was not shown to be illegal or incorrect---No legal lacuna having been pointed out in the said order, grounds agitated on behalf of the accused had no legal force ---Revisional jurisdiction of High Court under S.439, Cr.P.C. and its inherent jurisdiction under S.561-A, Cr.P.C. were not synonymous---Burden to prove plea of alibi was on the accused which was to be legally proved---Where the procedure required recording of evidence, escape or deviation from such procedure by invoking inherent jurisdiction of High Court was unwarranted---Accused had been shown involved in the alleged offence in the challan submitted by the police in the Court- -Allegation of false implication of accused in the case could not be entertained in the petition filed under S.561-A, Cr.P.C.---Determination of guilt or innocence of accused depended upon the totality of facts and­ circumstances revealed during trial---Petition was dismissed in limine in circumstances.

Sheikh Mahmood Saeed and another v. Amir Nawaz Khan and another 1996 SCMR 839 and Muhammad Ali v. The State 1998 PCr.LJ 1323 rel.

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

----Ss.439 & 561-A---Revisional jurisdiction of High Court under S.439; Cr.P.C. and inherent jurisdiction under S.561-A, Cr.P.C. vesting in High Court are not synonymous.

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

----S. 561-A---Inherent jurisdiction---Scope---Power of High Court to prevent abuse of the process of any Court or to secure the ends of justice is undoubtedly very wide and unlimited, but such power certainly cannot be exercised as to interrupt or divert the ordinary course of criminal procedure---Inherent power of High Court can be invoked where it is established that the proceedings against a person seeking quashment of his case are either mala fide, coram non judice or a clear violation of the procedure or such proceedings amount to abuse of process of Court---High Court in exercise of its inherent jurisdiction will not embark upon evaluating or assessing the evidence which is yet to come on record.

(d) Alibi---

---- Plea of alibi---Burden of proof---Mode---Burden to prove plea of alibi was on the accused which was to be proved in accordance with law.

Muneeb Ahmed Khan for Applicant.

Suleman Habibullah, Addl. A.-G.

Date of hearing: 18th December, 2000.

P L D 2001 Karachi 283

Before Sahibuddin Ahmed, Shabbir Ahmed and Wahid Bux Brohi, JJ

HUSSAIN ABDULLAH SALUM---Appellant

versus

THE STATE---Respondent

Criminal Jail Appeal No. 170 of 1999, decided on 15th January, 2001.

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

----Ss. 72 & 74---Constitution of Pakistan (1973), Art. 13---Criminal Procedure Code (V of 1998), S. 403---Customs Act (IV of 1969), S.156(1)(8)---Application of the Customs Act, 1969 and other laws--­Effect---Protection against double punishment---Ever since the enactment of the Control of Narcotic Substances Act, 1997 or the promulgation of its predecessor Ordinance all offences had to be tried under the said Special Law, consequently, a trial or a conviction before the Custom Court would be coram non judice and therefore the protection of Art. 13(a) of the Constitution or S. 403, Cr.P.C. would also not apply to such case.

(b) Customs Act (IV of 1969)---

----S. 156(1)(8)---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 9, 72 & 74---Constitution of Pakistan (1973), Art. 13(a)---Criminal Procedure Code (V of 1898), S. 403---Protection against double punishment---Accused after having been convicted and sentenced under S.156(1)(8) of the Customs Act, 1969 was also convicted and sentenced under S. 9 of the Control of Narcotic Substances Act, 1997, for the same offence---Sections 72 & 74 of the Control of Narcotic Substances Act, 1997 provided that all offences had to be tried under the said Special Law and the trial or conviction by the Custom Court was coram non judice and therefore, the protection of Art. 13(a) of the Constitution or of S. 403, Cr.P.C. was not applicable---Offence having been committed by the accused before coming into force of the Control of Narcotic Substances Act, 1997, the same as such was not operative at the time of the commission of the offence---Conviction and sentence of accused both under the Customs Act, 1969 and the Control of Narcotic Substances Act, 1997 were consequently set aside---Accused had already been repatriated to his own country after serving his sentence under the Customs Act, 1969 and in the peculiar circumstances of the case no illegality could be attributed to such action---Appeal was disposed of accordingly-- [Xiomori Moria and another v. State 2000 PCr.LJ 956 dissented from].

Mark Mifsud v. Investigation Officer PLD 1999 Kar.336 affirmed.

Xiomori Moria and another v. State 2000 PCr.LJ 956 dissented from.

Tasawar Hussain v. State 1986 PCr.LJ 2218; Sabir v. State NLR 2000 Cr. 393; Muhammad Ashraf and others v. The State 1995 SCMR.626; The State v. Anwar Khatak PLD 1990 FSC 42 and Collector of Customs v. New Electronics (Pvt.) Ltd. PLD 1994 SC 363 ref.

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

----Ss. 7, 8, 9, 72 & 74---Customs' Act (IV of 1969), S. 156---Trial of offences---All acts or omissions which may constitute offences under the Control of Narcotic Substances Act, 1997 as well as the Customs Act, 1969 or any other law, must be treated as those committed under the Control of Narcotic Substances Act, 1997, and be tried accordingly---Mere fact of import and export of Narcotics should not mislead the Investigating or -Prosecuting Agencies to treat the matter as an offence under the Customs Act, 1969, because Ss.7 & 8 of the Control of Narcotic Substances Act, 1997 expressly describe such offences to have been committed under the said Act punishable under S.9 thereof.

Appellant through Superintendent, Central Prison, Karachi.

Habib Ahmad, Asstt. A.-G., Sindh for the State.

Dates of hearing: 29th May and 18th September, 2000.

P L D 2001 Karachi 292

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

MUHAMMAD AKRAM and others---Petitioners

versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.D-1894 of 2000, decided on 10th February, 2001.

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

----Ss. 13 & 32---Accountability Court---Jurisdiction.

(a) The Accountability Court has exclusive jurisdiction to entertain and adjudicate upon all claims/objections against the freezing of any property.

(b) The persons who are ostensible owners of the properties would be given notice of the said freezing order so that they would be enabled to file objections and thereafter Accountability Court would adjudicate upon the issue.

(c) The well-recognised maxim of law that nobody can be condemned unheard shall be adhered to in the proceedings relating to freezing of properties.

(d) The ostensible owners would have the right to challenge any adverse finding or order, if made against them, by filing appeals.

(e) Where an exclusive Tribunal or Court has jurisdiction in a matter, but the legislation creating such Court or Tribunal or conferring jurisdiction on the same also ends up by providing the Appellate or Revisional jurisdiction to the High Court against the final judgment/decision, then the High Court would normally not entertain proceedings challenging the legality of such final judgment/decision or any interlocutory order passed therein except in very rare and exceptional circumstances.

(t) Where the Accountability Court is seized of the precise issue of determining the source of money involved in acquiring the properties ostensibly owned by the private persons and alleged to be actually held and financed by the accused, the High Court would not have any jurisdiction to entertain these issues through a civil suit.

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

----S. 32--Appeal---Scope---Appeal against conviction of airy person by the Accountability Court would lie to the High Court of -the Province where the Court was situated.

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

----S. 12---Constitution of Pakistan (19,73), Art. 199 --- Constitutional petition---Freezing of property---All the issues raised in the petition had already been, decided by another Division Bench of the High Court (PLD 2001 Kar. 256)---Fears and apprehensions of the petitioners on the points of lack of opportunity of being heard and the forum for redressal of grievance had been comprehensively allayed in the said judgment---Petition raising the same issues by the same persons in respect of the same properties and assailing the same order was not maintainable---Constitutional petition was dismissed in limine accordingly.

National Accountability Bureau v. Zahida Sattar PLD 2001 Kar. 256 ref.

Abid S. Zuberi for Petitioners.

Amer Raza Naqvi for Respondent No.2.

Dates of hearing: 8th and 9th February, 2qpl.

P L D 2001 Karachi 304

Before Sabihuddin Ahmed and Ghulam Rabbani, JJ

AVIATION AUTHORITY‑‑‑Petitioner

Versus

TAQI MOHTASIB (OMBUDSMAN) and others‑‑‑‑Respondents

Constitutional Petition No. D‑504 of 1998, decided on 5th December, 2000.

(a) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 19831‑‑‑

‑‑‑‑Art. 9(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Order of Wafaqi Mohtasib‑‑‑Jurisdiction of High Court to review the order‑‑‑Scope‑‑‑Where there is lack of jurisdiction on the part of Wafaqi Mohtasib, High Court can exercise its jurisdiction to review such order.

International Cargo Handling Company (Pvt.) Ltd. v. Port Kassim Authority through Secretary, Bin Kassim Authority PLD 1992 Kar.65 and International Airlines Corporation v. Wafaqi Mohtasib and others 1998

(b) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983)‑‑‑

‑‑‑‑Art. 9(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Civil service‑‑‑Jurisdiction of Wafaqi Mohtasib‑‑‑Dispute was with regard to pensionary benefits which had arisen as a matter of service‑‑­Complaint was filed against the Authority by the petitioner who was widow of the deceased employee of the Authority ‑‑‑Wafaqi Mohtasib allowed the complaint and the representation before the President was rejected‑‑­Validity‑‑‑Wafaqi Mohtasib (Ombudsman), in view of the embargo under the provisions of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 did not enjoy any power to accept, investigate and adjudicate upon the matter involved in such complaint‑‑‑Order passed by Wafaqi Mohtashib was set aside‑‑‑High Court advised the petitioner that she might get her grievance redressed by the Authority or Tribunal in accordance with law‑‑‑Petition was allowed in circumstances.

Almas Khanum v. Federation of Pakistan and others 1994 MLD 6; Malik Azam Jan v. Habib Bank Ltd., Karachi and 3 others 1995 CLC 234 and Fazalul Qadir Chaudhry v. Muhammad Abdul Haq PLD 1963 SC 486 ref.

(c) Pakistan Civil Aviation Authority Ordinance (XXX of 1982)‑‑‑

‑‑‑‑S. 5‑‑‑Employees of Civil Aviation Authority‑‑‑Such employees were not related to defence of Pakistan‑‑‑Function of the Authority did not relate to the defence of Pakistan or the Military, Naval or Air Force of the country‑‑­Provisions of Pakistan Army Act, 1952, as well as similar statute relating to Naval and Air Force clearly specified matters covered by the statute and described persons who were subject to them‑‑‑Employees of the Authority were not covered by any of such statute.

(d) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983)‑‑‑

‑‑‑‑Art. 38‑‑‑Jurisdiction of, Wafaqi Mohtasib‑‑‑Exclusion of jurisdiction‑‑­Validity‑‑‑Jurisdiction of Wafaqi Mohtasib cannot be excluded through an order passed under Art.38 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983.

(e) Administration of justice‑‑

‑‑‑‑ Order without jurisdiction‑‑‑Such order may not necessarily be set aside if the dictates of substantial justice require otherwise.

Abdul Qadir Siddiqui for Petitioner.

Naeemur Rehman Dy.A.‑G. for Respondent.

Arshad Tayyabali for the Private Respondents.

Date of hearing: 24th October, 2000

P L D 2001 Karachi 311

Before S.A. Sarwana and Muhammad Mujeebullah Siddiqui, JJ

Constitutional Petition No.D‑1897 of 2000

Messrs KALOODI INTERNATIONAL (PVT.) LTD. and another‑‑‑Petitioners

versus.

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Constitutional Petition No.D‑1896 of 2000

ABDUL SHAKOOR KALOODI and another‑‑‑Petitioners

versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Constitutional Petitions Nos.D‑1897 and D‑ 1896 of 2000, decided on 31st May, 2001.

(a) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Ss. 31‑D & 18‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Reference‑‑‑Inquiry, investigation or proceedings in respect of imprudent Bank loans‑‑‑Procedure‑‑‑Provision of S.31‑D of the Ordinance is procedural and mandatory‑‑‑Expression "proceedings" used in S.31‑D is very wide in its import and includes the initiation of proceedings and References by the National Accountability Bureau before the Accountability Court‑‑‑Reference under S.31‑D of the Ordinance by the Governor of State Bank of Pakistan to the Accountability Bureau must be made before the initiation of any inquiry, investigation, Reference or any other proceedings by the National. Accountability Bureau and should always precede and not to succeed the initiation of proceedings etc. as fait accompli‑‑‑Reference made in violation of the mandatory provisions contained in S.31‑D of the Ordinance would render the very initiation of proceedings and all subsequent acts wholly illegal and void and the illegality would not be curable by subsequent order' of the Governor State Bank of Pakistan with the result that the entire proceedings were liable to be quashed‑‑-Principles.

The initiation of proceedings against the petitioners without reference from the Governor State Bank of Pakistan, amounted to an illegality which rendered the entire proceedings to be null and void. The initiation of proceedings and taking of cognizance by the Court stood vitiated for such illegality. It was not an irregularity which could be cured under section 537, Cr.P.C. The reason being that if there is any defect 'in' the course of proceedings it can be subsequently cured but if there is any defect 'to' the proceedings it goes to the, very root of jurisdiction. Any defect in jurisdiction is always an illegality which renders the entire subsequent acts on the basis of defective jurisdiction to be null and void.

If there is any defect, or irregularity during the course of investigation or inquiry but the Court taking cognizance is competent in law to take the cognizance and has taken the cognizance competently and validly, then any defect or irregularity in the course of investigation or inquiry shall not have the effect of vitiating the proceedings in Court, trial and the decision. It should always be kept in view that the taking of cognizance by the trial Court does not suffer from any jurisdictional error or illegality.

If there is any bar in law on taking cognizance by the Court prior to any sanction by the competent authority specified in law, but there is no bar on conducting investigation by the Investigating Authority or making any inquiry by the Inquiry Officer or filing of any complaint by a complainant then the initiation of investigation/inquiry and submission of Police Report/challan before a Court or filing of a complaint shall be permissible but the Court shall not take cognizance, meaning thereby, that it shall, not take any notice of the said police report/challan/complaint until and unless the required sanction is produced.

A perusal of section 197, Cr.P.C. shows that the Legislature has provided that no Court shall take cognizance of such offence except with the previous sanction of the President or the Governor, as the case may be. Similar provisions are contained in sections 195, 196 and 196‑A, Cr.P.C. which place bar on taking of cognizance by the Court unless the complaint is made by the competent authority or the sanction as the case may be, is accorded. However, no bar is contained in these sections on initiation of investigation/inquiry or proceedings and launching/initiation of prosecution.

Section 31‑D of the NAB Ordinance, starts with the non obstante clause which means that it shall have the overriding effect on any other provision contained to the contrary in the NAB Ordinance or any other law for the time being in force. It specifically provides that no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or rescheduled loans shall be initiated or conducted by the National Accountability Bureau, against any person, company or financial institution without reference from Governor State Bank of Pakistan. In order to provide protection to the pending cases a proviso was added to the effect that the cases pending before any Accountability Court before coming into force of the National Accountability Bureau (Second Amendment) Ordinance, 2000, shall continue to be prosecuted and conducted without reference from the Governor State Bank of Pakistan. This proviso was necessary to keep the pending cases intact because otherwise all the cases pending before the Accountability Court pertaining to the wilful default and ancillary matters would have been rendered vitiated and void, as the provision contained in section 31‑D is on one hand procedural and on the other hand mandatory.

It is always permissible under the principles of interpretation of statutes to discover the intention of Legislature by comparing various provisions of the same statute or of the different statutes of same nature. When we compare, the provisions contained in section 31‑D of the NAB Ordinance with the provisions contained in section 18(a), (b), (c) and (g), we find a marked distinction in the two provisions.

A perusal of section 18 shows that under clause (a) a fetter has been placed on taking of cognizance of any offence by the Accountability Court under the Ordinance, except on a reference made by the Chairman, National Accountability Bureau, or an officer of the National Accountability Bureau, duly authorised by him. Clause (b) empowers the National Accountability Bureau, for initiating reference on reference received from the appropriate Government or receipt of a complaint or on its own accord. The clause (c) enjoins upon the Chairman, National Accountability Bureau or an officer of National Accountability Bureau, duly authorised by him to form an opinion if it is necessary and appropriate to initiate proceedings against any person and if so then only he shall refer the matter for inquiry or investigation. Under clause (g) the Chairman, National Accountability Bureau or any officer of the National Accountability Bureau authorised by him is required to appraise the material and the evidence placed before him during the inquiry and the investigation, and then if he decides that it would be proper and just to proceed further, he shall refer the matter to an Accountability Court.

Now to revert to the provisions contained in section 31‑D, to examine the effect of the insertion of this section by Ordinance XIV of 2000, dated 5‑7‑2000. The section starts with non obstante clause which has overriding effect on any other provisions contained in the Ordinance on any other law for the time being in force and it does not purport to place merely a bar or fetter on the taking of cognizance, by the Accountability Court, but it provides clearly and without any ambiguity that all the powers of initiating inquiry or investigation, appraising the material and evidence and deciding whether it would be appropriate and just to proceed further against an alleged wilful default and it would be appropriate to refer the matter to the Accountability Court, have been taken away from the Chairman, National Accountability Bureau, and after divesting the Chairman, National Accountability Bureau of all such powers, they have been conferred on the Governor State Bank of Pakistan.

Thus, after insertion of section 31‑D of the NAB Ordinance, no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or rescheduled loans shall be initiated or conducted by the National Accountability Bureau, against any person without reference from the Governor State Bank of Pakistan. The result is that after the insertion of section 31‑D, all such matters are to be placed before the Governor State Bank of Pakistan acid he is the competent authority in law to take a decision if any inquiry, investigation or proceedings in respect of the loans and wilful defaults shall m initiated or conducted by the National Accountability Bureau, or not the expression "proceedings" used in section 31‑D, is very wide in its import and includes the initiation of proceedings and reference` by the National Accountability Bureau before the Accountability Court. Thus, section 31‑D, does not place merely a bar on taking of cognizance by the Court without reference from Governor State Bank of Pakistan to the National Accountability Bureau and thereafter reference by Accountability Court under section 1S(a) of the National Accountability Bureau Ordinance. 1999, but prohibits the initiation of very proceedings and as such the reference made by the Chairman, National Accountability Bureau in this case without reference from the Governor State Bank of Pakistan was illegal and a nullity in law which cannot be cured by subsequent order of the Governor State Bank of Pakistan, directing the Chairman, National Accountability Bureau tc proceed with and conduct the trial of accused persons in Reference No.37 of 2000.

There is another aspect that the provisions contained in section 31‑D of the NAB Ordinance fall within the classification of enabling‑law. The enabling statute, is that kind of legislation which either enables something to be done which was previously forbidden or not distinctly authorised by law or which prescribes the way in which something is to be done. The last category of enabling statutes is that which prescribes or regulates the way in which something is to be done. One of the principles regarding the enabling statutes is that where the Legislature has expressly prescribed one or more particular modes of dealing with the matters specified therein then it excludes any other method of doing the acts. Sometimes the enabling acts are directory in nature also. However, if the provision is in the nature of absolute enactment then if anything is neglected or contravened it shall make the entire proceedings invalid and altogether void. There is no hard and fast rule of universal application for determining whether an enabling act is absolute or directory in nature. However; mostly enactments expressed in negative and prohibitory language are treated as absolute enactments.

If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say if the statute enacts that it shall be done in such a manner and in no other manner those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceedings.

A perusal of section 31‑D, shows that it is couched in negative language and it has prescribed a particular manner and mode whereby no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or rescheduled loans shall be initiated or conducted by the National Accountability Bureau without reference from the Governor State Bank of Pakistan. In the present case the National Accountability Bureau, had already made a reference against the petitioners to the Accountability Court without any reference from the Governor State Bank of Pakistan. This mode/manner of making a reference to the Accountability Court is in clear violation of the prohibitory provisions contained in section 31‑D and as such it is void ab initio and cannot be cured by any subsequent order of the Governor State Bank. Section 31‑D prescribes that first a reference is to be received from Governor State Bank of Pakistan and thereafter any inquiry, investigation or proceedings shall be initiated or conducted by the National Accountability Bureau. It does not provide that the National Accountability Bureau shall initiate the proceedings and subsequently obtain the order of Governor State Bank of Pakistan in mechanical manner and as a matter of course. Reference under section 31‑D of the NAB Ordinance by the Governor State Bank of Pakistan to the National Accountability Bureau, must be made before the initiation of any inquiry, investigation, reference or any other proceedings by the National Accountability Bureau. The reference should always precede and should not succeed the initiation of proceedings etc. as fait accompli. There is a vast difference in making a reference by the Governor State Bank of Pakistan on its own accord after application of mind independently and considering the feasibility of launching a prosecution after appreciating the facts and circumstances of a particular case and passing of an order for continuing a prosecution already initiated in order to fulfil a technicality in a formal manner.

The reference ma a violative of the mandatory provisions contained in section 31‑D, rendered the very initiation of proceedings and all subsequent acts wholly illegal and void and the illegality is not curable by subsequent order of the Governor State Bank of Pakistan, with the result that the entire proceedings are liable to be quashed.

Reference having been made in violation of the provisions contained in section 31‑D, therefore, the proceedings were liable to be quashed. The said proceedings were quashed accordingly and the petitioners were directed to be released forthwith if not required in any other case.

Proceedings having been quashed, therefore, the directions of Supreme Court, pertaining to the 30 days statutory notice and 7 days additional notice were not applicable in this case.

It will be open to the relevant authorities to have the matter referred to National Accountability Bureau for initiation of fresh proceedings in respect of the alleged act of the petitioners strictly in accordance with section 31‑D of the Ordinance.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Basdeo Agarwalla v. Emperor AIR 1945 FC 16; Arjan Singh v. Emperor AIR 1939 Lah. 479; Abdul Mian and others v. The King AIR 1951 Pat. 513; Ravanappa V. Reddi v. Emperor AIR 1932 Mad. 253; Narain Singh v Emperor AIR 1925 All. 129; Gokulchand Dwarkadas v. The King AIR 1948 PC 82; Craies on Statute Law, Vth Edn., p.243, 7th Edn., p.263 and Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 620 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Enabling statute‑‑‑Nature and kinds‑‑‑Principles.

The enabling statute is that kind of legislation which either enables something to be done which was previously forbidden or not distinctly authorised by law or which prescribes the way in which something is to be done. The last category of enabling statutes is that which prescribes or regulates the way in which something is to be done. One of the principles regarding the enabling statutes is that where the Legislature has expressly prescribed one or more particular modes of dealing with the matters specified therein then it excludes any other methods of doing the acts. Sometimes the enabling acts are directory in nature also. However, if the provision is in the nature of absolute enactment then if anything is neglected or contravened it shall make the entire proceedings invalid and altogether void. There is no hard and fast rule of universal application for determining whether an enabling act is absolute or directory in nature. However, mostly enactments expressed to negative and prohibitory language are treated as absolute enactments.

If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner. Those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceedings.

Craies on Statute Law, Vth Edn., p.243, 7th Edn., p.263 and Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 620 ref.

(c) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Ss. 5(r) & 31‑D‑‑‑Wilful default‑‑‑Applicability of conditions prescribed/directions by the Supreme Court in the case of Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607‑‑‑Scope and extent‑‑­Procedure to be adopted as' to how compliance of the directions of Supreme Court can be enforced pertaining to the 30 days statutory notice and an additional 7 days notice to be served on the alleged defaulter to satisfy the Governor of the State Bank of Pakistan that he has not committed any wilful default.

Supreme Court, while upholding the validity of section 5(r) of the NAB Ordinance, has directed that in order to ensure across‑the‑board accountability, rules shall be framed under section 34 of the NAB Ordinance which shall on promulgation become part of the Ordinance, including the following rule:

(i) No prosecution for 'wilful default' shall be launched before the expiry of 30 days statutory notice and an additional 7 days notice shall also be served on, the alleged defaulter to satisfy Governor, State Bank of Pakistan that he has not committed any 'wilful default'. The report of Governor, State Bank of Pakistan as to the prima facie guilt or innocence will be subject to the final decision of the Accountability Court. The same procedure will be followed with regard to recovery of other public dues falling within the contemplation of section 5(r) of the Ordinance. The Governor, State Bank of Pakistan shall record his recommendations within 7 days with reasons therein.

The adoption of the course prescribed shall not affect the initiation of investigation and its continuation to its logical end or the proceedings pending before any authority/Court under NAB Ordinance. These instructions were issued under Article 37 read with Article 187 of the Constitution, which empowers Supreme Court to issue any appropriate directions, orders or decrees, as may be necessary for doing complete justice in any case or matter pending before it which are enforceable throughout Pakistan.

Matters relating to remedy, mode of trial, the manner of taking evidence and forms of actions are all matters relating to procedure. Only a matter of procedure would be retrospective.

The pending trials or the proceeding may continue subject to the said order.

Order of the Supreme Court shall not affect the trials conducted and convictions recorded or any order passed or proceedings taken thereunder and the pending trials/proceedings may continue subject to this order.

Order of the Supreme Court and the directions contained therein shall come into force with immediate effect. However, the Federal Government is directed to formally promulgate appropriate legislative instruments, as soon as possible, but preferably, within a period of two months from today in order to make necessary amendments, modifications, alterations, or substitutions, as the case may be, to give effect to the above directions.

The directions given by the Supreme Court have taken immediate effect and the directions pertaining to the matters relating to procedure are retrospective in effect. After the elaborate and comprehensive directions and observations of the Hon'ble Supreme Court, in the case of Khan Afsandyar Wali, no discussion is required on the applicability of the directions of Hon'ble Supreme Court, to the pending trials/proceedings. The directions contained in para. 314 of the judgment are very specific to the effect that the pending trials/proceedings may continue subject to the order of Hon'ble Supreme Court. Thus, we have no hesitation in holding that the directions of Hon'ble Supreme Court, contained in para. 219 of the judgment are retrospective in effect being procedural in character and are applicable to the reference pending against the petitioners and all other cases pertaining to the wilful default as defined in section 5(r) of the NAB Ordinance.

Non‑compliance of the directions by the Supreme Court in the case of Khan Afsandyar Wali, shall not have the effect of vitiating the pending proceedings leading to the quashment thereof. For the reason that Supreme Court has very clearly directed that the pending trials/proceedings may continue subject to the directions contained in the judgment of the Supreme Court.

The next question for consideration in the present case is as to how, compliance of the directions of Supreme Court can be enforced pertaining to the 30 days statutory notice and an additional 7 days notice to be served on the alleged defaulter to satisfy Governor State Bank of Pakistan that he has not committed any wilful default. The only pragmatic and practicable solution is that in all ‑such cases the pending proceedings should be kept in abeyance with directions to the concerned authorities to serve a 30 days statutory notice on each alleged wilful defaulter providing opportunity to submit explanation if any or to pay or return or re‑pay the amount to any Bank, financial institution, cooperative society or a Government department or a statutory body or any authority established or controlled by the Government, the amount due and if the amount due is paid, returned or re­paid within 30 days of the service of statutory notice then it would not be a case of wilful default and necessary steps shall be taken for withdrawal from prosecution and release of the accused.

If the amount due is not paid within 30 days of the service of statutory notice, then a 7 days notice shall be served on the alleged defaulter to satisfy the Governor State Bank of Pakistan, that he has not committed any wilful default. If an alleged defaulter is able to satisfy the Governor State Bank of Pakistan that he has not committed a wilful default then the recommendations of the Governor State Bank of Pakistan, recorded in writing with reasons therein shall be submitted for final decision of the Accountability Court.

If an alleged defaulter fails to pay or return or re‑pay the amount due to the Bank, financial institution etc., within the statutory period of 30 days of service of notice and the alleged defaulter further fails to satisfy the Governor State Bank of Pakistan within additional 7 days period, that he has not committed any wilful default and the Governor State Bank of Pakistan holds the alleged defaulter to have prima facie committed the guilt of wilful default in his recommendations, for the reasons recorded therein, the Accountability Court may re‑commence the proceedings from the stage where it was kept in abeyance. , This procedure is to be adopted in all those cases where reference was made either before 5th of July, 2000 or in the cases referred to the Accountability Court, after 5th of July, 2000, in accordance with the provisions contained in section 31‑D, NAB Ordinance and were pending at the time of announcement of judgment by the Supreme Court of Pakistan, in Khan Afsandyar Wali's case.

The trial Court was directed to keep the proceedings of Reference against the petitioners in abeyance with directions to the concerned authorities to serve a thirty days' statutory notice on each alleged wilful defaulter providing opportunity to submit explanation if any or to pay or return or re‑pay the amount due to the bank, and if the amount due is paid returned or re‑paid within 30 days of the service of statutory notice then it would not be a case of wilful default and necessary steps shall be taken for withdrawal from prosecution and release of the accused/alleged wilful defaulter.

Further directions be issued by the trial Court that if the amount due is not paid within 30 days of the service of statutory notice as above, then a 7 days' notice shall be served on the alleged defaulter to satisfy the Governor, State Bank of Pakistan, that he has not committed any wilful default. If alleged defaulter is able to satisfy the Governor, State Bank of Pakistan, that he has not committed a wilful default then the recommendations of the Governor, State Bank of Pakistan recorded in writing with reasons therein, shall be submitted for final decision of the Accountability Court.

If the alleged defaulter fails to pay or return or re‑pay the amount due to the Bank, within statutory period of 30 days of service of notice and the alleged defaulter further fails to satisfy the Governor, State Bank of Pakistan, within additional 7 days' period, that he has not committed any wilful default and the Governor, State Bank of Pakistan holds the alleged defaulter to have prima facie committed the guilt of wilful default in his recommendations for the reasons recorded therein. The Accountability Court may re‑commence' the proceedings from the stage where it was kept in abeyance.

In pursuance of the judgment of Honourable Supreme Court of Pakistan in Khan Asfandyar Wali's case assailed Reference in this petition shall continue and disposed of subject to the above directions.

Abdul Hafeez Lakho for Petitioners (in C. Ps. Nos.1897 and 1896 of 2000)

Mrs. Ismat Mehdi for Respondents Nos. 2 and 3 (in C.Ps. Nos. 1897 and 1896 of 2000).

Azizur Rehman and M. Anwar Tariq, Dy. P. G. A. (in C. P.No.1897 of 2000)

Hamza I. Ali and Qazi Faez Isa for Respondent No.4 (in C. P.No.1896 of 2000).

M. Anwar Tariq, Dy. P. G. A. (in C. P.No.1896 of 2000).

Date of hearing: 11th May, 2001.

P L D 2001 Karachi 344

Before Saiyed Saeed Ashhad, C. J. and Muhammad Afzal Soomro, J

STANDARD CHARTERED BANK‑‑‑Petitioner

versus

KARACHI ELECTRIC SUPPLY CORPORATION LTD through Managing Director‑‑‑Respondent

Constitutional Petitions Nos.D‑4, 15, .16, 17, 25, 28, 32, 33, 34, 35, 38, 39, 54, 56, 64, 73, 78, 82, 113, 119, 129, 131, 140, 142, 143, 144, 159, 164, 168, 188, 199, 200, 201, 202, 218, 243, 245, 261, 269, 270, 271,. 272, 278, 299, 304, 312, 314, 326, 340, 376, 398, 422, 423, 426, 437, 447, 449, 475, 489, 495, 523, 524, 568, 569, 574, 590, 601, 603, 604, 624, 637, 643, 648, 653, 658, 659, 661, 673, 681, 692, 702, 756, 757, 762, 775, 780, 802, 803, 811, 812, 823, 825, 828, 869, 881, 890, 922, 925, 926, 927, 946, 981, 984, 1020 and 1022 of 2001, 1834 and 1880 of 2000, decided on 31st May, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑General rule of resorting to alternate, adequate and efficacious remedy by the aggrieved party‑‑‑Exceptions.

A rule has been established, by virtue of which a party aggrieved of any order of a public functionary has to seek remedy through the forum provided under the Statute under which the public functionary was exercising powers, if a forum is provided thereunder. It is only after the legal remedy, available to an aggrieved party has been exhausted that he would have the right to invoke the Constitutional jurisdiction of High Court. However, an exception has been made to this general rule of resorting to alternate, adequate and efficacious remedy. This exception relates to an action and/or order of a public functionary, which on the face of it appears to be illegal, unlawful and void.

Bar for invoking the writ jurisdiction of High Court would not be applicable where the impugned order was challenged on the basis of lack of jurisdiction.

It was not an absolute rule of law barring jurisdiction but a rule by` which Court regulated its jurisdiction and further that if the order of the statutory body was challenged on the ground that it was wholly without authority, partial, unjust and mala fide then the High Court would not refuse to exercise its jurisdiction in spite of the fact that the aggrieved party had appropriate or adequate remedy available to him for correction thereof.

Interference by High Court in a Constitutional petition was possible, if the impugned order sought to be challenged was palpably illegal, mala fide and beyond jurisdiction irrespective of the fact that alternate statutory remedy was available to the aggrieved party.

A Constitutional petition would be maintainable without exhausting all the available remedies if the order was passed by a forum or authority by exceeding its jurisdiction.

If the order or action complained of was so patently illegal, void or wanting in jurisdiction that any further recourse to alternative remedy may only be counter‑productive and by invocation of Article 199 the mischief could forthwith be nipped in the bud then in such matters existence of alternate remedy would not bar the exercise of Constitutional jurisdiction by High Court.

Nagina Silk Mills, Lyallpur v. The Income‑tax Officer, A‑Ward, Lyallpur and another PLD 1963 SC 322; The Murree Brewery Co. Ltd v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Lt.‑Col Nawabzada Muhammad Amtr Khan v. The Controller of Estate Duty and others PLD 1961 SC 119 Adatnjee Insurance Company Ltd. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad and 5 others 1993 SCMR 1798; Gatron Industries Ltd. v. Government of Pakistan and others 1999 SCMR 1072 and Khalid Mahmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881 ref.

(b) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)‑‑‑

‑‑‑‑Ss.7(3)(a), 31 & 45‑‑‑Electricity Act (IX of 1910), Sched., CI.VI, provisos thirdly and fourthly ‑‑‑Powers and functions of National Electric Power Regulatory Authority‑‑‑Scope‑‑‑Legislature, by promulgating Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, had made a departure from the past position inasmuch‑ as the power to determine, modify or revise the rates, charges and forms and conditions for generation of electric power transmission, interconnection, distribution services and power sales to consumers has been taken away from the Power Generating Units and has been vested to National Electric Power Regulatory Authority, thereby stripping the Power Generating Units of their powers to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers unless they are permitted to do so by the NEPRA on a proper application being made to it by the Power Generating Units‑‑‑Relevant provisions of Regulation of Generation. Transmission, and Distribution of Electric Power Act, 1997 and Electricity. Act, 1910 being inconsistent with each other, resort will have to be made to the principle of implied repeal of the old statute (Electricity Act, 1910) which is inconsistent and in conflict with the newly enacted statute i.e. Act of 1997‑‑‑Principles‑‑‑Notices issued by the Power Generating Unit calling upon the consumers to make payments for the purpose of extension of the Sanctioned Load, System Development Charges and Security/C h Deposits were without legal authority and of no consequence.

After promulgation of the Regulation of General Transmission an Distribution of Electric Power Act, 1997, the Legislature has conferred the power of determining the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers on authority namely NEPRA established under section 3 of the Act of 1997.

A bare reading of the two different provisions, which are contained in provisos three and four of clause VI of the Schedule of the Electricity Act. 1910 and sections 7(3)(a) and 31 of the Act of 1997, leads to a probable presumption that after promulgation of the Act of 1997, KESC has been stripped of its power to determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers and the said powers have been conferred on NEPRA.

Before promulgation of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers vested in the Power Generating Units by virtue of clause VI provisos three and four of the Schedule to the Electricity Act, 1910, and they continued to enjoy this power without any restriction, limitation from any quarter. In 1997, the Legislature promulgated the Act of 1997 in which the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and. power sales to consumers is regulated by sections 7(3)(a) and 31 of the Act of 1997. By the aforesaid two sections of the Act of 1997, the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers has now been vested in National Electric Power Regulatory Authority (NEPRA), an authority established under the Act of 1997. By promulgating the Act of 1997, the Legislature had made a departure from the past position inasmuch as the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers has been taken away from the Power Generating Units and has been vested in NEPRA, thereby stripping the Power Generating Units of their powers to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers unless they are permitted to do so by NEPRA on a proper application being made to it by the Power Generating Units.

A perusal of the provisions of Clause VI of the Schedule to the Electricity Act, 1910 and sections 7(3)(a) and 31 of the Act of 1997 would reveal that there are several provisions, which are inconsistent with each other or are in conflict with each other. The first inconsistency is that under the Act of 1910, all the powers enumerated in Clause VI of the Schedule to the Act of 1910 have been conferred on Power Generating Units, These powers include the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers, whereas sections 7(3)(a) and 31 of the Act of 1997 which deal with in relation to the same subject‑matters and issues which were previously dealt with by Clause VI of the Schedule to the Act of 1910, whereby powers exercised by the Power Generating Units have been taken away from them and have been conferred on the authority namely, NEPRA.. The provisions referred to hereinabove of the two Statutes cannot be said to be consistent or in conformity with each other. A perusal of the aforesaid two provisions is also sufficient to come to the conclusion that both the aforesaid provisions of two different Statutes cannot stand side by side and cannot be acted upon simultaneously. As a matter of fact, it would just not be possible to act upon both the aforesaid provisions of the two Statutes as that would result in complete chaos, uncertainty and absurdity inasmuch as the Power Generating Units, relying on the provisions of the Act of 1910, would claim to have the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers, whereas NEPRA relying on sections 7(3)(a) and 31 of the Act of 1997 would claim to have the authority to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers.

To avoid the chaos, uncertainty and absurdity, which would be caused if the aforesaid two provisions of both the Statutes are admitted to be alive and are to be acted upon in their different spheres, resort will have to be made to the principle of Interpretation of Statutes dealing with the implied repeal of the provisions of an old Statute which is inconsistent and in conflict with any provision of a newly‑enacted Statute.

It is an admitted fact that the Act of 1997 has not repealed the Act of 1910 or any provision thereof and the same or any part thereof can only be said to have been impliedly, repealed. Implied repeal of an earlier law or a provision thereof can be inferred only where there is the enactment of a later law which had the power to override the earlier law or any provision thereof when the two laws or some provisions thereof arc totally inconsistent with each other, that is to say, where the two laws or same provisions thereof cannot stand together. According to the principle of implied repeal, the later laws abrogate earlier contrary laws provided that the later law is capable of taking the place of the earlier law, According to the doctrine of implied repeal, it is to be presumed that the Legislature was aware of the existing law and by enacting the new law to the contrary did not intend to create any confusion in the law by retaining conflicting provisions on the Statute book. Usually, the presumption of repeal by implication cannot be presumed readily in the absence of the repealing provisions in the later Act but such presumption is to be inferred and a repeal is to be inferred when the provisions of the later law are so inconsistent with or repugnant to the provisions of the earlier law that they cannot stand together. Repeal by implication is to be inferred in the absence of an affirmative expression of "repeal of the earlier law" if the provisions of the two Acts are found to be irreconcilably conflicting or the later Statute or any provision thereof covers the whole ground occupied by the earlier Statute or any particular provision thereof and it was the intention of the Legislature to substitute the earlier Statute with the later Statute or any provision of the earlier Statute by a provision of the later Statute.

In such circumstances, the intention of the Legislature to repeal the earlier Statute or any provision thereof is to be readily inferred.

In this context, the maxim, 'leges posteriores priores contraries abrogant' would be attracted which means that later laws repeal earlier laws inconsistent therewith.

If the provisions of a later Act are so inconsistent with or repugnant to those of an earlier Act that the two cannot stand together, the earlier stands impliedly repealed by later.

A repeal by implication could be effected when the provisions of the later enactment were so inconsistent with or repugnant to the provisions of an earlier Statute that the two could not stand together.

Following are requirements for repeal of a Statute or provision thereof

(1) If its provisions are plainly repugnant to a subsequent Statute, (2) If the two standing together would lead to wholly absurd consequences; and

(3) If the entire subject‑matter of the first is taken away by the second.

The provisions contained in Clause VI dealing with the authority and power of the Power Generating Units to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers are absolutely in conflict with the relevant provisions enacted in the Act of 1997, whereby such power/authority has been conferred on NEPRA. The provisions of the above two Statutes relating to the authority and powers of the Power Generating Units and NEPRA are absolutely incbnsistent, conflicting and contrary to each other. Resultantly, it would not be possible for the two to stand together and in the circumstances, the provisions of Clause VI of the Schedule to'the Act of 1910 insofar as they relate to the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers being inconsistent with the relevant provisions' of the Act of 1997, be inferred to have been impliedly repealed and such power now vests .in NEPRA else it would lead to chaos, uncertainty and absurdity. Thus, the provisions of Clause VI of the Schedule to the Act of 1910 relating to the power of respondent KESC to determine, modify or revise the rates. charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers have been impliedly repealed and KESC has no authority to levy the charges for the purpose of extension of Sanctioned Load, System Development and Security/Cash Deposits.

Section 45 of the Act of 1997 provides that the provisions of the Act of 1997 shall have effect notwithstanding anything to the contrary contained in any other law, rule or regulation for the time being in force and such law, rule or regulation shall, to the extent of any inconsistency, cease to have any effect from the date this Act comes into force. A plain reading of section 45 of the Act of 1997 is sufficient to lead to an inference that the Legislature has in clear terms expressed its intention that the provisions of the Act of 1997 shall have overriding effect over the provision of any Statute, which is inconsistent, conflicting or contrary to any provision of the Act of 1997 and further that any provision of any Statute for the time being in force which is inconsistent, conflicting or repugnant to any provision of the Statute would cease to have effect from the date of promulgation of the Act of 1997. Where any provision starts with or contains non obstante clause, i.e. the words "notwithstanding anything to the contrary", then it is to be presumed that the Legislature intended that such provision should prevail over all other contrary provisions contained in any Statute and further that in case of inconsistency between non obstante clause and any other provision of the Statute, non obstante provision would prevail over other provisions.

The object of the non obstante clause in any provision or section of the Statute was to exclude any provision of the Statute. which was inconsistent with the provision which contained the non obstante clause. Thus, in view of the above, the provisions of Clause VI to the Act of 1910 relating to the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers ceased to be in force from the date the Act of 1997 was promulgated and KESC were barred from taking actions in the nature which they had taken relating to the determination of charges/tariffs for extension in Sanctioned Load, for System Development and demanding fresh Security/Cash Deposits.

KESC had ceased to have the authority to levy, determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers and to issue notices calling upon the consumers to make payment for extension in the Sanctioned Load, System Development Charges and Security/Cash Deposits at the rates determined by it, which powers could only be exercised by NEPRA.

The notices issued by KESC calling upon the consumers to make payments for the purpose of extension in the Sanctioned Load, System Development Charges and Security/Cash Deposits were declared to be without legal authority and of no consequence.

Messrs H.M, Abdullah v. The Income‑tax Officer, Circle V, Karachi and 2 others 1993 SCMR 1195; Income‑tax Officer and another v. Messrs Chappal Builders 1993 SCMR 1108; The Commissioner of Income?tax, Karachi and 2 others v. Messrs N.V. Philip's Gloeilampenfabriaken PLD 1993 SC 434; Commissioner of Income‑tax, Companies‑II and another v. Hamdard Dawakhana (Waqf), Karachi PLD 1992 SC 847; Nagina Silk Mills, Lyallpur v. The Income‑tax Officer, A‑Ward, Lyallpur and another PLD 1963 SC 322; Water and Power Development Authority and another v. M.N. Steel Rerolling Mills and 23 others 1999 SCMR 494; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Adamjee Insurance Company Ltd. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad and 5 others 1993 SCMR 1798; Lt.‑Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others PLD 1961 SC 119; Gatron Industries Ltd. v. Government of Pakistan and others 1999 SCMR 1072; Khalid Mahmood v. Collector of Customs, Custom House, Lahore 1999 SCMR 1881; Messrs Tank Steel and Rerolling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others PLD 1996 SC 77; Municipal Board, Bareily v. Bharat Oil Co. AIR 1990 SC 548; Laws of England, 4th Edn., Vo1.44, para.966; Messrs E.F.U. General Insurance Ltd. v. The Federation of Pakistan and others PLD 1997 SC 700 1997 PTD 1693 and Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6.others PLD 1997 SC 582 ref.

(1982) 1 AER 129; (1947) 2 AER 686; (1962) 1 AER 385; (1969) 1 AER 208; (1982) 3 AER 1124; (1992) 2 AER 321 and PLD 1987 SC 442 distinguished.

(c) Interpretation of statutes‑‑‑

‑‑‑‑Repeal by implication‑‑‑Provision of a later Act inconsistent or in conflict with provisions of an earlier Act‑‑‑Effect‑‑‑Provisions of an earlier enactment stood impliedly repealed by the later‑‑‑Principles.

Messrs Tank Steel and Rerolling Mills (Pvt.) Ltd., Dera Ismail Khan and others v. Federation of Pakistan and others PLD 1996 SC 77; Municipal Board, Bareily v. Bharat Oil Co. AIR 1990 SC 548 and Laws of England, 4th Edn., Vo1.44, para.966 ref.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Provision of a statute starting with or containing non obstante clause‑‑‑Presumption.

Messrs E.F.U. General Insurance Ltd. v. The Federation of Pakistan and others PLD 1997 SC 700 = 1997 PTD 1693 and Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 ref.

Kamal Azfar, Neel Keshav, S.A. Samad Khan, Aziz A. Shaikh, Muhammad Saleem, Khawaja Shamsul Islam, Muhammad Zafar, Siddiq Mirza, Malka Begum, Monawwer Ghani. Iftikhar Jawaid Kazi, Syed Nasir Hussain Jafri, Sadar Alam. M. Shaft Siddiqui, Irfan Aziz, Shehanshah Hussain, Hassan Inarnullab, Sohail Muzaffar. Amer Raza Naqvi, Tanveer Ahmed, Syed Amjad Ali Shah, Raja Shamsuz Zaman, Muhammad Naseem, I.H. Zaidi, Ch. A. Rashid, Hassan Akbar, Abdul Latif A. Shakoor, Abdul Jabbar Qureshi, A. Rauf Kasuri, Shahab Sarki, Mehboob Elahi Saham, Syed Amanullah Agha, Muhammad Ahasan Rao, Abdul Wajid Wyne, Muhammad Afaq Khan Shahid, Karam Dad Khan Tanoli, K.A. Wahab, Dr. Qazi Khalid Ali, Nadeem Azhar Siddiqui, Kasuar Amin, Khalid Mehmood Siddiqui, Ishrat Alvi, Tanveer Ahmed, Shamsuddin Khalid Ahmed, Shahzad Akhtar, Syed Mazahir Hussain, Muhammad Sharif and Muhammad Ali Sayeed, Advocates for Petitioners.

Raja Qureshi, A.‑G. of Sindh, A. R. Akhtar and Sohail H.K. Rana, Advocates for Respondents.

Dates of hearing: 17th, 20th, 24th and 27 April, 2001.

P L D 2001 Karachi 369

Before Zahid Kurban Alvi and S.A. Rabbani, JJ

ALI HASSAN ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. D‑98 of 2000, heard on 29th March, 2001.

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

‑‑‑‑Ss. 25 & 9(b)‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑‑Search and arrest, mode of‑‑‑Exemption of applicability of S.103, Cr.P.C.‑‑­Effect‑‑‑Exception of applicability of S.103, Cr.P.C. in cases under the Control of Narcotic Substances Act, 1997 as provided under S.25 of the said Act, could give a legal technical support to the admissibility of the evidence of official witnesses, but it would not make them reliable‑‑‑Man could not be made moral through legislation‑‑‑Evidence of such official witnesses should always be examined keeping in view the fact that in a society with the level of moral values that unfortunately prevails, a subordinate official is seldom expected to tell the truth in deviation of express or implied instructions of his superior.

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

‑‑‑‑S. 9(b)‑‑‑Appreciation of evidence‑‑‑Excise Inspector, at the relevant time was on patrol in company of eight other Excise Officials, but in the charge­sheet submitted before the Trial Court, the Investigating Officer had mentioned only two witnesses in addition to himself and only one witness in addition to Investigating Officer were examined before the Trial Court‑‑­Presumption could be that prosecution witnesses who were not examined, would not have supported the prosecution case‑‑‑Material contradictions existed in evidence of prosecution witnesses with regard to preparation of Mashirnama which had rendered the whole prosecution case doubtful and the accused could not be deprived of the benefit of such doubt‑‑‑Conviction and sentence awarded to the accused by the Trial Court were set aside and the accused were ordered to be released forthwith.

Asif Ali Soomro for Appellant.

Gul Hassan Solangi for the State.

Date of hearing: 29th March, 2001.

P L D 2001 Karachi 371

Before Anwar Zaheer Jamali, J

AYESHA TAHIR SHAFIQ‑‑‑Petitioner

versus

SAAD AMANULLAH KHAN and 2 others--‑Respondents

Constitutional Petition No.161 and Miscellaneous Nos.876, 235, 253 and 254 of 1999, decided on 22nd May, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Disputed question of fact‑‑‑Scope‑‑‑Investigation into disputed question of fact cannot be done in Constitutional jurisdiction of High Court.

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

‑‑‑‑S. 25‑‑‑Custody of minor‑‑‑Welfare of minor, a prime consideration and basic criterion‑‑‑For deciding the question and other issues relating thereto, welfare of minor is the paramount consideration for Guardian Court‑‑‑Any issue regarding the custody of minor is to be assessed, examined and measured by the Guardian Court on such yardstick and the Court has toy record a definite finding on the point before passing any order in the matter.

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

‑‑‑‑Ss. 13 & 25‑‑‑Custody of minor‑‑‑Modification or alteration of an earlier order‑‑‑Guardian Court, power of‑‑‑Scope‑‑‑Order passed by Guardian Court in respect of custody of minor (consent order or otherwise) may be an order in the best interest and welfare of the minor at that point of time but due to certain future eventuality and subsequent developments the same may not serve as such‑‑‑It is for this reason that the Guardian Court has been empowered to modify, set aside or alter an earlier order and pass an appropriate order at any subsequent stage to safeguard the interest and welfare of the minor‑‑‑Order passed earlier by Guardian Court with regard to custody of minor cannot operate as a bar of jurisdiction for Guardian Court for all time to come.

(d) Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑S. 25‑‑‑Custody of minor‑‑‑Compromise between the parties ‑‑‑Effect‑‑­Compromise or an agreement between the parties does not absolve Guardian Court from its basic responsibility to safeguard and protect the interest and welfare of the minor.

(e) Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑Ss. 13 & 25‑‑‑Custody of minor‑‑‑Modification or alteration in an earlier order passed with the consent of the parties‑‑‑Duty of Guardian Court to examine subsequent developments‑‑‑Scope‑‑‑Compromise, agreement or consent order cannot be lightly upset/rejected by Guardian Court while re­examining question of welfare of minor in the given facts and circumstances of each case‑‑‑Where earlier order passed by Guardian Court is intended to be modified/altered, the Guardian Court should proceed with the presumption that the compromise, agreement or the consent order passed in earlier guardianship proceedings was in the best interest and welfare of the minor and therefore the Court should examine the subsequent developments and allegations which were made basis for seeking modification/change in the earlier order.

(f) Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑S. 25‑‑‑Custody of minor‑‑‑Grant of relief‑‑‑Power of Guardian Court‑‑­Scope‑‑‑Guardian Court, to ensure and safeguard the interest and welfare o.` the minor, can grant any relief while deciding guardianship application‑‑­Substance and not the form of application was to be examined even if Court was found lacking the authority to grant relief in strict terms as prayed in the application.

Samar Gul v. Central Government and others PLD 1986 SC 35 ref.

(g) Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑Ss. 13 & 25‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Custody of minor‑‑‑Modification of order passed earlier on compromise by Guardian Court‑‑‑Mother of the minors was given custody and periodical meetings between the father and the minors were agreed to by the parties‑‑‑Mother of the minors raised serious and shameful allegations against the father which pertained to the period of meeting with the minors‑‑­Guardian Court declined to modify the order passed earlier without making any inquiry into the matter and said decision of the Guardian Court was upheld by the Appellate Court‑‑‑Plea raised by the father was that the Constitutional petition was not filed with clean hands‑‑‑Validity‑‑‑Finding with regard to truthfulness or otherwise of the allegations levelled by the mother of the minors in her guardianship application was not recorded by the Court and unless the same was recorded it could not be held that the mother of the minors had not approached the High Court with clean hands or she was not entitled to equitable relief in the matter‑‑‑Orders passed by the two Courts below were set aside by the High Court in circumstances.

PLD 1967 SC 402; PLD 1970 Kar. 619; 1983 SCMR 606; 1985 SCMR 2066; PLD 1986 SC 14; 1989 MLD 3427; 1993 CLC 736 and PLD 1996 Kar. 174 ref.

1993 CLC 736; PLD 1996 Kar. 174; 1998 MLD 1271; 1996 CLC 1603; AIR 1936 Lah. 1019; AIR 1930 Lah. 250; AIR 1954 SC 82 and PLD 1963 Dacca 816 distinguished.

Khalid Latif and Mubarak Hussain Siddiqui for Petitioner.

Raja Qureshi and Masooda Siraj for Respondent No. 1.

Dates of hearing: 24th January; 1st, 21st February and 27th March, 2000.

P L D 2001 Karachi 383

Before Anwar Mansoor Khan, J

CITIBANK N.A. ‑‑‑Plaintiff

versus

TRI STAR POLYESTER LTD. ‑‑‑Defendant

Suit No.283 and Civil Miscellaneous Applications Nos.2752 and 2753 of 1999, decided on 10th April, 2001.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 10‑‑‑Leave to defend the suit‑‑‑Bona fide serious dispute‑‑‑Dispute was only with .regard to the validity of accounts‑‑‑Three loans were received by the borrower from the Bank and contention of the borrower was that last loan was continuity of the earlier loans‑‑‑Plea raised by the borrower was that mark‑up on mark‑up had been charged by the Bank‑‑‑Validity‑‑‑No requirement existed to lead evidence to prove any specific document or to prove any fact‑‑‑Where the dispute could be determined from the admitted documents and. the scrutiny of the accounts, as such the same was not a serious dispute‑‑‑High Court appointed a Chartered Accountant for the purpose of scrutiny of accounts‑‑‑Leave to defend the suit was refused by High Court but defendants were allowed to appear and participate in .the proceedings of the Court for the purposes of determining the amount due‑‑­Application was dismissed accordingly.

PICIC v. Frontier Ceramic Ltd. 2000 CLC 287 ref.

Iqbal Haider for Plaintiff.

Abid S.Zuberi for Defendant.

Dates of hearing: 27th February; 2nd and 14th March, 2001.

P L D 2001 Karachi 389

Before Faiz Muhammad Qureshi, J

A. H. ALVI‑‑‑Appellant

versus

MUHAMMAD TARIQ‑‑‑Respondent

First Rent Appeal No.314 of 1996, heard on 17th January, 2001.

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

‑‑‑‑Ss. 15 & 21‑‑‑Ejectment proceedings‑‑‑Bona fide personal need of landlord‑‑‑Objections raised by tenant during trial both on 'factual and legal plane‑‑‑Failure to discuss such objections by Rent Controller‑‑‑Ejectment petition was allowed by Rent Controller and the tenant was ordered to vacate the premises‑‑‑Tenant objected to the validity of power of attorney executed by landlord and bona fide personal need of landlord which was not mentioned in the notice issued to the tenant and landlord had not examined himself as witness‑‑‑Effect‑‑‑Where the objections were not discussed by the Rent Controller, High Court set aside the order of ejectment passed by Rent Controller and remanded the case for, decision afresh.

PLD 1984 SC(AJ&K) 157; 1986 CLC 363; 1989 MLD 2166; PLD 1997 Lah. 122; PLD 1997 Kar. 285; 1988 CI.C 1053; 1984 CLC 645; 1997 CLC 430; 1997 CLC 363; 1984 CLC 1137; 1986 CLC 1472; 1993 CLC 2511; 1983 CLC 1446 and PLD 1985 SC 38 ref.

Badarudduja Khan for Appellant.

Imran Ahmed for Respondent.

Date of hearing: 17th January, 2001.

P L D 2001 Karachi 394

Before Muhammad Ashraf Leghari, J

ABDUL KHALIQ‑‑‑Petitidner

versus

ABDUL GHANI‑‑‑Respondent

Civil Revision No.25 of 1994, decided on 26th March, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O. VIII, R.4 & S.115-‑‑Revision‑‑‑Suit for declaration and permanent injunction contending that the plaintiff had purchased the land through a sale‑deed wherein defendant, who was his brother, was shown to be co‑owner of 1/4th share as Benami out of brotherly love though the consideration for the property was paid by the plaintiff‑‑‑Possession of the land remained with the plaintiff to the extent oz 3/4th share while the remaining land was in the possession of the defendant‑‑‑Plaintiff stated that during the year 1978 the defendant, surrendered his right in the said land to the extent of his share and in return thereof he received an auto‑rickshaw which belonged to his son which was ultimately sold by the defendant‑‑‑Plaintiff prayed for a declaration to the effect that he was the owner of the suit land as the defendant has sold hi, share‑ to him‑‑‑Defendant having denied the allegations, the suit was dismissed by the Trial Court which was affirmed in appeal‑‑‑Contention of the plaintiff was that entire amount for consideration of the l/4th share oz land was paid to the defendant though he had not spent anything for that and name of defendant was entered in the record of rights out of brotherly love and affection and he was just a Benami owner of the property and his denial was evasive under O.VII1, R.4, C.P.C. and suit should have been decreed on the basis of such evasive denial‑‑‑Validity‑‑‑Evidence led by the parties had been elaborately evaluated and discussed by the two Courts below‑‑‑Plaintiff had failed to prove that he delivered the rickshaw to the defendant as a consideration of purchase of his share of land‑‑‑Two pleas agitated by the plaintiff were contradictory to each other‑‑‑Judgments of two Courts did not suffer from illegalities or infirmities ‑‑‑No misreading or misappreciation of evidence had been pointed out‑‑‑High Court declined interference in ‑‑vision.

Shaikh Fazaluddin for Petitioner.

Nazir Ahmed Awan for Respondent.

P L D 2001 Karachi 403

Before Muhammad Mujibullah Siddiqui, J

FAYYAZ ALI ‑‑‑Applicant

Versus

Syed ISLAM AHMED KALIMI‑‑‑Respondent

Revision Application No.6 of 1998, decided on 18th April, 2001.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 87‑‑‑Specific Relief Act (I of 1877), S.8‑‑‑Suit for possession‑‑­Certified copy of public document‑‑‑Admissibility‑‑Original record of the Authority containing the allotment order of suit property in favour of plaintiff being .not traceable, record was re‑constructed with the attested copies of the documents‑‑‑Plaintiff in proof of his title in respect of suit property examined Assistant Director of the Authority as Court‑witness who produced said documents and Court relying on said documents, decreed the suit‑‑‑.Contention of defendant was that Courts below had wrongly placed reliance on the evidence of Assistant Director of the Authority‑‑‑Said Court­ witness had not produced the certified copies of any public document, but had produced the record which was reconstituted, for the reason that the original record was not available ‑‑‑Authority and plaintiff were parties to the transaction which was sought to be proved and the defendant had never set up a case that the suit property was ever allotted to him or that any record in favour of the defendant had been tampered with or any fraud or forgery had been committed affecting any vested right in his favour‑‑‑Authority issued allotment order to the plaintiff and continued to accept the plaintiff as valid allottee of the suit property‑‑‑Record had been re‑constituted and had been produced from the custody of a person who was required to keep it in his possession‑‑‑Some of the documents produced by the Court‑witness were original to which no objection could be taken‑‑‑Courts below in circumstances had not committed any illegality or material irregularity in placing reliance on the documents produced by said Court‑witness in support of the documentary evidence already produced by the plaintiff.

Manbahal Raid v. Ram Ghulam AIR 1927 All. 633; Noora and 11 others v. Ahmed Ali and 3 others 1992 SCMR 1610; Province of the Punjab v. Muhammad Hussain PLD 1993 SC 147; Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063; Mubinulnissa v. Ali Hussain and another AIR 1929 Oudh 402 and Azizur Rehman and 10 others v. Ali Haider Shah and others 1993 CLC 454 ref.

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

‑‑‑‑S. 8‑‑‑Suit for possession‑‑‑Suit was resisted contending that plaintiff being allottee` of suit property, could not file suit for possession in his own right‑‑‑Contention was repelled as the allotment order in favour of plaintiff was a prelude to the issuance of lease and conferred a right and interest on the allottee in respect of the allotted property against the entire world except Authority which had made the allotment.

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

‑‑‑‑S. 8‑‑‑Limitation Act (IX of 1908), Arts. 142 & 144‑‑‑Suit for possession‑‑‑Adverse possession‑‑‑Claim for‑‑‑Provisions contained in Art. 142 of Limitation Act, 1908 were applicable to the suit for possession of immovable property when the plaintiff while in possession of property had been dispossessed or had discontinued the possession‑‑‑If neither the plaintiff was at any time dispossessed by the defendant who claimed adverse possession nor the plaintiff had ever discontinued the possession‑‑‑Provisions of Art. 142, Limitation Act, 1908 were not attracted to his case‑‑‑Article 144 of Limitation Act, 1908 [as it stood before its omission by Act 11 of 19951 was also not attracted in the case of plaintiff because for the purpose of said Article the period of limitation would commence from the time when the possession of defendant would become adverse to the plaintiff while in the case the adverse possession was claimed by the defendant for the first time when the statement was filed by him in an earlier case filed by plaintiff against the defendant.

Mubinulnissa v. Ali Hussain and another AIR 1929 Oudh 402 and Mst. Chandni Begum v. Madhorao Falke AIR 1953 Madh. Bha. 28 ref.

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

‑‑‑‑Ss. 8 & 9‑‑‑Limitation Act (IX of 1908), Arts. 142 & 144‑‑‑Suit for possession‑‑‑Adverse possession‑‑‑Article 144 of Limitation Act, 1908, presupposed that the person holding possession was one who did not initially treat his possession as adverse to the plaintiff‑‑‑Article 144 would include cases where the transfer or possession to plaintiff originally was under permission or title and Art.142 of said Act carried no such thought, but it presupposed a person who had possession, but had discontinued the same, and there was no question of any assumption that the subsequent person securing possession was one who initially treated his possession as under the plaintiff's title‑‑‑Discontinuance of possession within the meaning of Art. 142 of Limitation Act, 1908 was more in consonance with the view that the discontinuance was a form of abandonment and not a transfer of possession under permission or title‑‑‑Where an abandonment of property took place and another person stepped in, the other did so as a trespasser or under some assumed title of his own as his possession was not under a right derived from the plaintiff‑‑‑Where the discontinuance of possession was simultaneous with its transfer under some form or permission or title, Art. 144 of Limitation Act would apply‑‑‑Article 144 of the Act was a residuary Article dealing with suits for possession of immovable property not otherwise specifically, provided for in the Schedule to the Limitation Act, 1908‑‑­Article 142 of Limitation Act dealt with a specific case where the plaintiff, while in possession of the property, had been dispossessed or while in possession of the property had discontinued the possession.

Mirza Ghulam Hussain v. Iqbal Ahmad PLD 1991 SC 290; Syed Zainuddin Hossain v. Moulvi Muhammad Abdur Rahman AIR 1993 Cal. 102 and Azizur Rehman and 10 others v. Ali Haider Shah and 4 others 1993 CLC 454 ref.

(e) Adverse possession‑‑‑

‑‑‑‑ Ingredients of adverse possession‑‑‑Basic ingredients for adverse possession which were required to be proved were; that possession was hostile, continuous and notorious to the interest of true owners for more than twelve years‑‑‑Peaceful possession of any length of time should not be adverse to the true owner.

(f) Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑‑S. 115‑‑‑Suit for possession‑‑‑Concurrent findings of facts and law of two Courts below not suffering from any illegality or irregularity, could not be interfered with by High Court in revisional jurisdiction of High Court.

Kunwar Mukhtar Ahmed for Applicant.

Abdul Hafeez Lakho for Respondent.

Date of hearing: 26th October, 2000.

P L D 2001 Karachi 415

Before S. A. Rabbani, J

AMANULLAH KHAN LEGHARI‑‑‑Appellant

Versus

ADIB SHAIKH AHMED ‑‑‑Respondent

First Rent Appeal No.423 of 1995, decided on 24th May, 2001.

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

‑‑‑‑S. 21‑A [as inserted by Sindh Rented Premises (Amendment) Ordinance (XIV of 2001)]‑‑‑Promulgation of amending Ordinance‑‑‑Commencement of ‑‑‑Commencement clause‑‑‑Necessity‑‑‑Amending Ordinance promulgated i through publication he official Gazette contained a commencement clause which had stated that it would conic into force at once‑‑‑Insertion of such clause in the Ordinance had reflected lack of knowledge of principles of legislative drafting on the part of its drafter because the words "at once" used in the clause did not specify the moment when the Ordnance was to come into force‑‑‑Whether said words would mean the moment when Authority/Governor had signed the Ordinance, was not clear‑‑‑Ordinance would come into force on its promulgation and that did not necessarily require a commencement clause‑‑‑Commencement clause, if found necessary, should mention that it would come into force on publication in the Gazette or on its promulgation‑‑‑Commencement clause in a Bill or Ordinance was not always necessary‑‑‑Commencement clause was usually required when commencement was subject to any future eventuality or different provisions were to be enforced on different occasions‑‑‑Ordinance would come into force on its promulgation on the authority under which it was issued and an Act would come into force, unless expressly provided otherwise, as soon as it was assented to by the President or the Governor.

(b) Constitution of Pakistan (1973)‑‑--

‑‑‑‑Arts. 75 & 116‑‑‑Bill, when would become law‑‑‑Bill would become law when assented to by the President or the Governor as the case may be.

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

‑‑‑‑S. 21‑A [as inserted by Sindh Rented Premises (Amendment) Ordinance (XIV of 2001)]‑‑‑Restoration of appeal dismissed for non‑prosecution‑‑­Jursidiction of High Court‑‑‑District Judge as per amendment in the Ordinance was substituted for the High Court as the Appellate Authority and an appeals pending in the High Court immediately before the commencement of amending Ordinance, 2001 stood transferred to the District Judge having jurisdiction‑‑‑Amending Ordinance was silent about the appeals already disposed of, but it was unambiguous that after promulgation of said Ordinance, the High Court ceased to be the Appellate Authority in respect of the appeals‑‑‑High Court, in circumstances, had no jurisdiction to order restoration of an already disposed of appeal or to hear the appeal after its restoration‑‑‑Disposed of appeals had been treated by the amending Ordinance as disposed of matters for all purposes‑‑‑If High Court had no jurisdiction to hear the appeal itself, it also could not order restoration of appeal dismissed for non‑prosecution‑‑‑Application for restoration of appeal, was dismissed, in circumstances.

M. Naimur Rehman for Appellant.

Rizwan Ahmad Siddiqui for Respondent.

Date of hearing: 23rd May, 2001.

P L D 2001 Karachi 419

Before S. Ahmed Sarwana and Muhammad Mujibullah Siddiqui, JJ

ISLAMUDDIN SHAIKH ‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Constitutional Petition No.D‑1004 of 2001, decided on 18th June, 2001.

National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Ss. 31‑D, 18 & 5(r)‑‑‑Wilful default‑‑‑Inquiry investigation or proceedings in respect of imprudent Bank loans‑‑‑Procedure‑‑‑Mandatory condition prescribed for commencing, initiating or conducting any inquiry investigation or proceeding, inter alia, in respect of wilful default was a­ reference from Governor State Bank of Pakistan‑‑‑Any Reference made by the Chairman, National Accountability Bureau without a reference from the Governor State Bank of Pakistan, in view of newly added S.31‑D of the Ordinance, would be illegal and a nullity in law‑‑‑Pending cases, however, would have protection under proviso added to S.31‑D of the Ordinance to the effect that the cases pending before any Accountability Court before coming into force of S.31‑D shall continue to be prosecuted and conducted without reference from the Governor of the State Bank of Pakistan High Court, in view of Supreme Court decision in Khan Asfandyar Wali's case PLD 2001 SC 607 laid down the procedure to be followed in pending cases by the Accountability Court.

A perusal of section 18(a) of the National Accountability Bureau Ordinance, 1999 clearly shows that the Accountability Court shall not take cognizance of any offence except on a reference made by the Chairman, NAB or an Officer of NAB duly authorised by him. Clause (b) of the said section which empowers NAB to initiate reference is to be read with section 31‑D of the Ordinance and directions issued by the Supreme Court in the case of Khan Asfandyar Wali's case .PLD 2001 SC 607 in cases of wilful default defined in section 5(r) of the Ordinance.

Section 31‑D was added in the Ordinance which specified certain conditions without the previous fulfilment of which no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or re‑scheduled loans could be initiated or conducted by NAB against any person, company or financial institution. The mandatory condition prescribed for commencing, initiating or conducting any inquiry, investigation or proceeding, inter alia, in respect of wilful default, is a reference from Governor SBP.

Section 31‑D of National Accountability. Bureau Ordinance, 1999 starts with non obstante clause which has overriding effect on any other provisions contained in the Ordinance or any other law for the time being in force and it does not purport to place merely a bar or fetter on the taking of cognizance by the Accountability Court, but it provides clearly and without any ambiguity that all the powers of initiating inquiry or investigation, appraising the material and evidence and deciding, whether it would be appropriate and just to proceed further against an alleged wilful default and whether it would be appropriate to refer the matter to the Accountability Court, have been taken away froth the Chairman, National Accountability Bureau, and after divesting the Chairman, National Accountability Bureau of all such powers, these have been conferred on the Governor State Bank of Pakistan.

Thus, after insertion of section 31‑D of the NAB Ordinance, no inquiry, investigation or proceedings in respect of imprudent loans, defaulted loans or rescheduled loans shall be initiated or conducted by the National Accountability Bureau, against any person without reference from the Governor State Bank of Pakistan. The result is that after the insertion of section 31‑D all such matters are to be placed before the Governor State Batik of Pakistan and he is the competent Authority in law to take a decision if any inquiry, investigation or proceedings in respect of the loans and wilful defaults shall be initiated or conducted by the National Accountability Bureau, or not. The expression "proceedings" used in section 31‑D is very wide in its import and includes the initiation of proceedings and references by the National Accountability Bureau before the Accountability Court.

Thus, section 31‑D does not place merely a bar on taking of cognizance by the Court without reference from Governor State Bank of Pakistan to the National Accountability Bureau and thereafter, reference by Accountability Court under section 18(a) of the National Accountability Bureau Ordinance, 1999, but prohibits the initiation of every proceedings.

Any reference made by the Chairman, NAB without a reference from the Governor SBP would be illegal and a nullity in law. However, to provide protection to the pending cases a proviso has been added to the section to the effect that the cases pending before any Accountability Court before coming into force of the Second Amendment (insertion of section 31‑D) shall continue to be prosecuted and conducted without reference from the Governor, SBP.

However, in order to ensure across‑the‑board accountability following directions were issued by the Supreme Court in Khan Asfandyar Wali's case for the application of section 5(r) of the Ordinance. The same shall be suitably incorporated in the Rules to be framed under section 34 of the Ordinance, which shall, on promulgation, become part of the Ordinance:‑‑

(i) No prosecution for 'wilful default' shall be launched before the expiry of 30 days' statutory notice and an additional 7 days' notice shall also be served on the alleged defaulter to satisfy Governor, State Bank of Pakistan that he has not committed any 'wilful default'. The report of Governor, State Bank of Pakistan as to the prima facie guilt or innocence will be subject to the final decision of the Accountability Court. The same procedure will be followed with regard to recovery of other public dues falling within the contemplation of section 5(r) of the Ordinance. The Governor, State Bank of Pakistan shall record his recommendations within 7 days with reasons therein.

(ii) Any settlement arrived at with the defaulters by the Chairman, National Accountability Bureau or compounding of any offence shall be subject to the decision of the Accountability Court.

Supreme Court further observed that adoption of the above course shall not affect the initiation of investigation and its continuation to its logical end or the proceedings pending before any Authority/Court under NAB Ordinance. These instructions were issued under Article 37 read with Article 187 of the Constitution, which empowers Supreme Court to issue any appropriate directions, orders or decrees, as may be necessary for doing complete justice in any case or matter pending before it which are enforceable throughout Pakistan.

Supreme Court directed that its order shall not affect the trials conducted and convictions recorded or any order passed or proceedings taken thereunder and the pending trials/proceedings may continue subject to this order.

The directions shall come into force with immediate effect. However, the Federal Government was directed to formally promulgate appropriate legislative instruments, as soon as possible, but preferably, within a period of two months in order to make necessary amendments, modifications, alterations or substitutions as the case may be, to give effect to the above directions.

There is no iota of doubt that the law declared and the directions given by the Supreme Court of Pakistan are binding on every person, authority and Court in Pakistan and would apply to all the proceedings related or connected with the provisions of the Ordinance.

Following is the procedure which must be followed to comply with the directions of the Supreme Court in all cases of wilful default pending at the time of the pronouncement of the said judgment:‑‑

(1) The Accountability Court is directed to keep the proceedings in abeyance with directions to the concerned authorities to serve a thirty days' statutory notice on each alleged wilful defaulter providing him/her an opportunity to submit his/her explanation, if any, or to pay or return or repay the amount due to the lender, and if the amount due is paid, returned or repaid within 30 days of the service of the statutory notice then it would not be a case of wilful default and necessary steps shall be taken for withdrawal of the prosecution and release of the accused/alleged wilful defaulter.

(2) The Accountability Court shall issue further directions that if the amount due is not paid within thirty days of the service of the statutory notice as above, then a 7 days' notice shall be served on the alleged defaulter to satisfy the Governor, State Bank of Pakistan, that he has not committed any wilful default. If the alleged defaulter is able to satisfy the Governor, SBP, that he has not committed a wilful default then the recommendations of the Governor, SBP, recorded in writing with reasons therefor, shall be submitted for final decision of the Accountability Court.

(3) If the alleged defaulter fails to pay or return or repay the amount due to the lender within the statutory period of 30 days of service of notice and the alleged defaulter further fails to satisfy the Governor SBP within the additional 7 days' period, that he has not committed any wilful default and the Governor SBP holds the alleged defaulter to have prima facie committed the offence of wilful default in his recommendations for reasons recorded therein, the Accountability Court may recommence the proceedings from the stage where it was kept in abeyance.

(4) During the aforesaid period, all possibilities and avenues of conciliation between the lender and the borrower shall be considered and explored in light of the provisions of the Ordinance and the observations of the Supreme Court of Pakistan in the case of Khan Asfandyar Wali PLD 2001 SC 607. If a conciliation is arrived at during the statutory period between the lenders and the borrowers to the satisfaction of the other independent and impartial members of the Conciliation Committee and the arrangements is not opposed to public policy and larger national interest and tends to promote the industrial, economic and investment environment in the country and is conducive to restore the confidence of investors, the Governor SBP and all concerned shall objectively and seriously consider whether after such arrangements, it still remains a case of wilful default as envisaged in the Ordinance. The Governor SBP and all concerned shall further consider whether after conciliation/settlement agreed upon between the lenders and the borrowers, the amount advanced by the lenders still remains due and payable forthwith and the immediate non‑payment whereof amounts to wilful default, justifying prosecution or continuance of prosecution of the borrowers treating them as wilful defaulters.

(5) In case the procedure for conciliation is resorted to by the parties, all the authorities concerned shall strictly comply with the provisions of the Ordinance and all other relevant applicable laws.

(6) All the concerned authorities including the Conciliation Committee, if any, Governor SBP and Chairman, NAB shall consider all legal points raised by the borrower and all laws applicable in the circumstances of the case and pass speaking orders giving reasons therefor keeping in view the provisions of the Ordinance, the observations of the Supreme Court of Pakistan in Khan Asfandyar Wali's case, the general law of the land and the principles of natural justice.

Khan Asfandyar Wali's case PLD 2001 SC 607 rel.

Kaloodi International (Pvt Limited v. Federation of Pakistan and others PLD 2001 Kar. 311 fol.

Khan Asfandyar Wali's case PLD 2001 SC 607; 1976 SCMR 450; PLD 1978 Lah. 1459; 1976 MLD 1656; 1996 SCMR 115; 1998 SCMR 328; 1999 SCMR 1881; Agha Siraj Ahmed Durrani v. Accountability Court and another C.P. No.D‑1243 of 2000; 1982 SCMR 73; PLD 1992 SC 353; 1993 SCMR 1117; PLD 1975 SC 457; PLD 1983 SC 21; PLD 2001 SC 7; 1996 CLC 833; 1998 CLC 2065; PLD 1996 Lah. 672; 1983 CLC 2828 and Kaloodi International (Pvt.) Limited v. Federation of Pakistan and others PLD 2001 Kar. 311 ref.

Aitzaz Ahsan and Abid S. Zuberi for Petitioner.

Muhammad Anwar Tariq, DPGA for Respondent No.2.

Ismat Mehdi for Respondent No.4.

Dates of hearing: 29th May and 4th June, 2001.

P L D 2001 Karachi 437

Before S.A. Rabbani, J

ARDESHIR HORMUSJI DALAL ZOHARASTRIAN

and 4 others‑‑‑Applicants

versus

THE STATE and another‑‑‑Respondents

Criminal Revision Application No. 13 of 2001, decided on 18th May, 2001.

(a) Words‑and phrases‑‑--­

----------“Subordinate"‑‑‑Connotation‑‑‑Ordinary dictionary meanings of "sub‑ordinate" are lower in rank or importance etc. or secondary belonging to an inferior order in classification or having a lower position in recognized scale and broad sense, subordinate would mean a lower status.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 201, 202 & 203‑‑‑Binding nature of decisions of High Court on subordinate Courts‑‑‑High Court of a Province is the Court that is empowered to make rules and to supervise the subordinate Courts in that Province‑‑‑High Court of a particular Province cannot supervise and control and also cannot make rules for the subordinate Courts of another Province‑‑­Intention of the Constitution‑makers, was clear that the "Courts subordinate to it" mentioned in Arts. 201, 202 & 203 of Constitution of Pakistan (1973) referred to the Subordinate Courts in the same Province‑‑‑Decisions of a High Court are binding on all Courts subordinate to it in the same Province.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 175, 192, 198, 201, 202 & 203‑‑‑Powers of High Court to make rules to regulate its practice and procedure‑‑‑Binding nature of decisions of High Court on subordinate Courts‑‑‑Constitution envisages a High Court as one Court and does not recognize individual Benches of High Court at one seat‑‑‑Bench of a High Court recognized by the Constitution, is within the meanings of a seat of the Court other than Principal Seat‑‑‑High Court may have a Bench at a place other than the Principal Seat‑‑‑High Court can make rules to regulate its practice and procedure and under such rules Benches of High Court can be formed at one Seat, but the concept of various degrees of strength of decisions of such Benches as to their binding effect, depending upon the number of Judges in a Bench, would be in conflict with the Constitutional concept of High Court being one Court‑‑‑Decision of a Bench of a High Court, irrespective of the number of Judges in the Bench is a decision of the High Court for all purposes‑‑‑Ruling of the Sindh High Court being binding on the subordinate Courts in Sindh, even Single Bench ruling of Sindh High Court on the point is binding on Additional Sessions Judge in Sindh‑‑‑Order passed by Additional Sessions Judge following Full Bench ruling of the Lahore High Court on the same point, being in conflict with Sindh High Court ruling, was set aside.

(d) Precedent‑‑‑

‑‑‑‑ Rulings of High Court of the Province was binding on the subordinate Courts of that Province only.

State v. Ali Hussain and others PLD 1974 Kar. 403 and Muhammad Shafi v. D.S.P. Malik Gul Nawaz PLD 1992 Lah. 178 ref.

Abdul Hafeez Lakho for Applicants Nos. 1 to 4.

Raza Hashmi for Applicant No.5.

Sharafat Ali Khan for the State.

Muhammad Anwar Tariq for Respondent No.2.

Date of hearing: 14th May, 2001.

P L D 2001 Karachi 442

Before Muhammad Mujeebullah Siddiqui, J

GOVERNMENT OF SINDH and others‑‑‑Appellants

Versus

Mst. SIRTAJ BIBI and another‑‑‑Respondents

Civil Appeal No.8 of 1996, decided on 9th July, 2001.

(a) Appeal (civil)--------

‑‑‑‑Jurisdiction of Appellate Court‑‑‑Appeal is the continuation of the original proceedings and the Appellate Court can exercise all the powers and jurisdiction conferred on the Court of original jurisdiction and can make all the orders which the original Court could have made or was empowered to make.

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

‑‑‑‑O. XLI, R.33‑‑‑Powers of Appellate Court‑‑‑Adjusting and re‑adjusting right and interest of parties‑‑‑Scope‑‑‑Appellate Court under the provisions of O.XLI, R.33, C.P.C. has been fully empowered to do complete justice and can pass any decree or order‑‑‑Said provision empowers the Appellate Court to ignore such technicalities which tend to defeat the ends of justice and to remove all hurdles‑‑‑Order XLI, R.33, C.P.C. empowers the Appellate Court to interfere where it becomes necessary to adjust or re‑adjust the right and interest of the parties or for settlement of mutual rights and obligations of the parties in accordance with the justice, equity and good conscience.

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

‑‑‑‑S. 151‑‑‑Inherent powers of Court‑‑‑Object and scope‑‑‑Situation where the power is to be exercised‑‑‑Principles.

Inherent power has been preserved to meet a situation where no express provision of law is applicable and such power can be exercised if there is no specific prohibition for a particular act. Such power under the provisions of section 151, C.P.C. cannot be exercised to further injustice and the same is to be exercised for making such orders as may be necessary for the ends of justice. This inherent power is necessary because the human conduct and the varying situations in human society ate so numerous, unpredictable and sometimes so complicated that any system of law and the general rules contained therein cannot regulate for all the times to come; each and every situation arising in peculiar circumstances and thus, it is not possible to make express provisions for all the situations that may possibly happen. It is the duty of the Courts to apply law, not only to what appears to be regulated by their express proposition, but to all the cases to which a just application of them may be made and which appeared to be comprehended either within the express sense of law or within the consequences of achieving the ends of justice.

Code of Civil Procedure, VIIIth Edn. 2000, p.350 by Aamer Raza; S.M. Yousif and others v. Mehdi Muhammad Yoopa PLD 1965 SC 15; Habib Bank Ltd. v. Ghazanfarullah Khan 1980 CLC 694; H.M. Saya & Co., Karachi v. Wazeer Ali Industry Ltd. PLD 1969 SC 65; Pakistan v. Agro Marketing Corporation PLJ 1984 Lah. 141; Amjad Rasheed Khan v. Zubeda Rasheed Khan 1984 CLC 2851; Begum Mumtaz Riaz v. Masood Siddiqui 1988 CLC 311; Salahuddin Butt v. Punjab Service Tribunal PLD 1989 SC 597; Ghulam Hussain v. Faiz Muhammad PLD 1991 SC 218; Emirates Bank International Limited v. Adamjee Industry Ltd. 1993 CLC 489 and Province of Punjab v. Abdul Majeed 1997 SCMR 169.2, ref.

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

‑‑‑‑S. 151‑‑‑Inherent powers, exercise of Administration of justice, principles of‑‑‑Course to be adopted by High Court‑‑‑High Court is fully competent to pass an appropriate order to achieve the ends of justice and prevent the abuse of the process of law‑‑‑Ends of justice should not be defeated or crucified at the altar of technicalities‑‑‑Court can always exercise its inherent powers to do complete justice in accordance with the principles of equity and good conscience‑‑‑High Court is not only the court of equity but of justice as well‑‑‑Until and unless any course is specifically prohibited in the Code of .Civil Procedure or any other statutory law, High Court is fully competent to adopt the course which serves the ends of justice and prevents the perpetuation of injustice‑‑‑Absence of any specific provisions and technicalities should never be treated as insurmountable hurdle in the dispensation of justice:

(e) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S. 48(1)‑‑‑Withdrawal of land acquired‑‑‑Liability of Government‑‑?Compensation to the landowner‑‑‑Extent.

Provisions of section 48(1) of Land Acquisition Act, 1894, empowers the Government to unilaterally withdraw from the acquisition of any land of which possession has not been taken. This power can be exercised by the Government without seeking consent of the landowner and without any sanction or approval from any Authority under the Land Acquisition Act, 1894, or from any Court. The sole liability with which the Government be saddled in the case of withdrawal from any such acquisition is the payment of the compensation determined by the consequences of the notice or of any proceedings thereunder and the payment of costs reasonably incurred by person interested, in prosecution of the proceedings under Lane Acquisition Act, 1894.

(f) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S.54‑‑‑Civil Procedure Code (V of 1908), Ss. 107, 151 & O.XLI, R.33‑‑ Appellate Court‑‑‑Jurisdiction‑‑‑While hearing appeal under S.54 of Land Acquisition Act, 1894, High Court is empowered to exercise all the powers and jurisdiction conferred on the Appellate Court under S.107 & O.XLI, C.P.C. read with S.151, C. P. C.

(g) Interpretation of statutes‑‑‑--

‑‑‑‑ Legislation by reference or incorporation‑‑‑Effect‑‑‑When any law to which reference is made, is incorporated/made applicable to the proceedings under any special statute or the statute having reference; then all the provisions contained in the statute to which reference has been made are attracted except those which are expressly excluded.

(h) Land Acquisition Act (I of 1894)‑‑--?

‑‑‑‑S. 54‑‑‑Civil Procedure Code (V of 1908), S.151‑‑‑Appeal‑‑‑Inherent jurisdiction of High Court, exercise of‑‑‑Scope‑‑‑In absence of any prohibition on the exercise of jurisdiction by the Court, in the Land Acquisition Act, 1894, or Civil Procedure Code, 1908, High Court is fully empowered to invoke its inherent jurisdiction in deciding the appeal in such a manner which serves the ends of justice and is beneficial to both the parties.

(i) Public revenue‑‑‑--

‑‑‑‑Spending of‑‑‑Public revenue is a sacred trust and it is to be spent strictly for the purpose of State necessity, by maintaining highest financial discipline and for achieving a particular purpose‑‑‑Public revenue should not be thrown and wasted just because of a technicality and inadequacy of the statute to meet the peculiar situation‑‑‑State necessity, until and unless unavoidable should not injure and affect the rights of the individuals guaranteed in the Constitution and the law‑‑‑High Court showed its great concern over the attitude and tendency that has developed in the country to act in a very negligent and irresponsible manner in respect of the public revenue‑‑‑Public revenue is a sacred trust and every single rupee of the public revenue is to be scrupulously saved and the public functionaries are enjoined upon to demonstrate full responsibility and very high standard of discipline whenever and wherever the use of public revenue is involved‑‑‑Failure on the part of public servants in this regard to he met with strict action.

(j) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 48(1) & 54‑‑‑Civil Procedure Code (V of 1908), S.151‑‑‑Appeal‑‑?'De‑notification of land acquired by Government‑‑‑Compensation, extent of‑‑?Land was acquired by Federal Government in the year 1994 by Notification under S.23 of Land Acquisition Act, 1894‑‑‑Landowner did not accept the compensation awarded by the Authorities‑‑‑Contention of the landowner was that Sabzi Mandi (vegetable market) had started working in the vicinity of the land thus the potential of the land had increased manifolds‑‑‑Government was no more interested in the land and the landowner was also interested in de‑notification of the same ‑‑‑Validity‑‑‑Sabzi Mandi (vegetable market) started working from May, 1996, and thereafter the price of the land had increased manifold‑‑‑If land was returned to the landowners, they would be able o earn much more amount by selling the land in small pieces ‑‑‑De ?notifying the acquisition proceedings thus would be more beneficial to the landowners‑‑‑Amount of the estimated costs was received by the landowners in March, 1995, and the amount would be treated as rent/compensation to the landowners for the damage suffered by them in consequences of acquisition proceedings and on account of costs incurred by them in prosecution of the acquisition proceedings‑‑‑High Court, in exercise of inherent jurisdiction directed the Authorities concerned under the Land Acquisition Act, 1894, to de‑notify all the. notifications issued in the acquisition proceedings‑‑‑Award by the Land Acquisition Collector and the judgment passed by the District Judge were set aside‑‑‑Appeal was disposed of accordingly.

(k) Words and phrases‑‑‑

---------?Estimated?-----Meaning.

Chamber's Law Dictionary ref.

(l) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 151‑‑‑Exercise of inherent powers by Court‑‑‑Principles.

Narsingh Das v. Mangal Dubey and others ILR 5 All. 163 fol.

S.M. Zaki, Dy. A.‑G., Shaikh Abdul Ghani, Dy .A.‑G. and Abdu Sattar Soomro for A.‑G. for Appellants.

Mushtaque A. Memon and Imdad Ali Awan for Respondents.

Date of hearing: 25th June, 2001.

P L D 2001 Lahore 1

Before Malik Muhammad Qayyum

and Raja Muhammad Sabir, JJ

SUI NORTHERN GAS PIPELINES LIMITED----Appellant

versus

DIRECTORATE GENERAL OF INTELLIGENCE AND

INVESTIGATION (CUSTOMS AND EXCISE), LAHORE---Respondent

Customs Appeal No. 167 of 1999, decided on 12th October, 2000.

(a) Words and phrases---

--"Surcharge "---Meaning.

Black's Law Dictionary, 6th Edn., p.1441 ref.

(b) Central Excise Rules, 1944---

----R. 96(ZZO)---Word "total"---Connotation---Word "total" in R.96(ZZO) of Central Excise Rules, 1944 is not without significance as it widens the scope of the word "bill" and all sorts of charges are included therein.

(c) Customs Act (IV of 1969)---

----S. 196---Central Excises Act (I of 1944), S.4(3)(b)---Central Excise Rules, 1944, R.96(ZZO)---Excise duty---Surcharge on late payment--­Dispute was with regard to recovery of excise duty on the whole of charges received by the company including the amount of surcharge on late payment---Contention by the company was that surcharge was exempted from excise duty by Central Board of Revenue---Validity---No instructions could be issued by the Central Board of Revenue under the provisions of S.43 of Central Excises Act, 1944 and the instruction by the Board have no binding effect on the Adjudicating Authorities---No illegality or irregularity was pointed out in the order passed by the Authorities whereby excise duty was demanded on the surcharge recovered by the company.

Aftab Ahmad Khan for Appellant.

A. Karim Malik for Respondent

Date of hearing: 2nd October, 2000.

P L D 2001 Lahore 3

Before Maulvi Anwarul Haq, J

Rana MAHMOOD AHMAD---Petitioner

versus

Rana MUHAMMAD RASHID and 3 others---Respondents

Writ Petition No. 10013 of 1998, heard on 12th October, 2000.

(a) Court Fees Act (VII of 1870)---

----Ss. 7(iv)(a) [as amended by Punjab Finance Act (XIV of 1973)] & 7(v)-­Value of suit for the purpose of court-fee---Terms "market value" and "value of the property" as used in Ss. 7(v) & 7(iv)(a) of Court Fees Act, 1870, respectively---Connotations and distinction--Value of property for the purpose of court-fee under the amended provision is different from the term "market value" used in S.7(v) of Court Fees Act, 1870.

(b) Court Fees Act (VII of 1870)---

----S. 7(iv)(a)---Constitution of Pakistan (1973), Art.199---Constitutional petition--.-Term "value of property" used in S.7(iv)(a) of Court Fees Act, 1.870---Scope---Gift deed was subject-matter of declaratory suit---Value of the suit property mentioned in the deed was Rs.40,000 whereas market value of the property was Rs.2,50,000---Lower Appellate Court, in exercise of revisional jurisdiction, directed the plaintiff to affix court-fee according to market value of the property---Validity---Word "value" appearing in S.7(iv)(a) of Court Fees Act, 1870, was referable to the document/transaction which was made basis for claiming a declaratory decree---Value recorded in document of .gift was "value of the property" within meaning of S.7(iv)(a) of the Colin Fees Act, 1870---Lower Appellate Court exceeded its jurisdiction by directing the plaintiff to pay court-fee which was not otherwise required by law to be paid---Order of the Lower Appellate Court was set aside in circumstances.

Bashir Ahmad v. Mushtaq Ahmad PLD 1985 Lah. 112 ref.

M. M. Azeem for Petitioner.

Khalid Aziz Malik for Respondents Nos. l and 2.

Date of hearing: 12th October, 2000.

P L D 2001 Lahore 5

Before Syed Zahid Hussain, J

SALEEM & CO. through Sh. Habib Ullah---Petitioner

versus

THE DEPUTY COLLECTOR OF CUSTOMS, LAHORE DRY PORT, MUGHALPURA, LAHORE and 2 others----Respondents

Writ Petition No.840 of 1985, heard on 3rd October, 2000.

(a) Constitution of Pakistan (1973)---

----Art. 25---Discrimination---To be treated alike is the fundamental right of all similarly placed in matters of identical nature---Where a person has to be treated differently there must be rationale behind such treatment and reasonableness, and cogent reason trust exist to treat differently.

(b) Customs Act (IV of 1969)---

----S. 25---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Value of goods, determination of---Jurisdiction of High Court under Art.199 of the Constitution---Contention of the petitioner was that consignments of similar importers of goods had been cleared at a lower value than the one that had been fixed in the case of the petitioner ---Validity--­Petitioner was entitled to be treated alike, unless it could be shown otherwise by advancing cogent reasons---Nigh Court could not determine the valuation and it was for the Customs Authorities to fix the same in accordance with law---Where there was allegation of arbitrariness and discrimination, it was the duty of State functionaries to satisfy aggrieved person that he had not been treated differently---High Court directed the Authorities to re-determine the appeal filed by the petitioner by taking into consideration the other cases/instances of similar nature---Case was remanded in circumstances.

Messrs Farooq International v. The Chief Controller of Imports and Exports and 4 others 1985 CLC 1781; Indus Automobile (Pvt.) Ltd. v. Central Board of Revenue and 2 others PLD 1988 Kar. 99 and Messrs Sasta Autos v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and 3 others 1991 MLD 1582 ref.

Shahbaz Khurshid for Petitioner. Izhar-ul-Haq for Respondents.

Date of hearing: 3rd October, 2000.

P L D 2001 Lahore 9

Before Ali Nawaz Chowhan, J

MUHAMMAD QASIM and 6 others---Petitioners

versus

MUHAMMAD HUSSAIN and 8 others---Respondents

Civil Revision No. 1365 of 1990, heard on 26th September, 2000.

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

----O. XLI, Rr.23 & 24---Remand of case---Sufficient documentary evidence available on record---Duty of Court---Duty of the First Appellate Court to read the documentary evidence which has been overlooked by the Trial Court---Where such evidence has a bearing on the case, the First Appellate Court has to consider such evidence itself for deciding the case instead of remanding the same.

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

----S. 115 & O.XLI, Rr.23, 27 & 31---Remand 'of case---Additional evidence, recording of---Sufficient evidence was available on record and case could be decided on such evidence---First Appellate Court instead of determining the case, set aside the judgment of the Trial Court and remanded the same for decision afresh after recording of additional evidence--­Validity --First Appellate Court failed to reflect in its judgment the grounds which satisfied the Court showing good cause for non-production of the documents at an early stage---High Court sitting in its visitorial jurisdiction took curative steps in setting aside the judgment of First Appellate Court---High Court directed the Appellate Court to decide the case while keeping m view the provision of O.XLI, R.31, C.P.C. and to receive the additional evidence itself, if needed be instead of asking the Trial- Court for the same---Case was remanded to the First Appellate Court in circumstances.

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

----O. XLI, R.27---Additional evidence at trial stage---Scope---Additional opportunity for filling up, gaps left in evidence at trial stage is not permitted.

Said Rasool and 8 others v. Subedar Amir Zaman and 11 others 1987 CLC 1582 and Pardool and 7 others v. Sattar Khan 1988 CLC 22 ref.

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

----O. XLI, Ri.31 & S.115---Appeal, summary disposal of---Failure to write findings on all the points involved in appeal---Effect---High Court in exercise of its revisional jurisdiction called such judgment for correction.

Sahib Jan v. Ahmad -Khan and others 1990 ALD 493; Wazir Khan v. A. Aziz Burney and 2 others 1992 MLD 1758 and Syed Farzand Raza Rizvi v. Syed Zaheer Mustafa 1988 MLD 463 ref.

Ch. Muhammad Aslam Sandhu with Muhammad Yousuf Khan for petitioners.

Nemo for Respondents.

Date of hearing: 26th September, 2000.

P L D 2001 Lahore 13

Before Syed Zahid Hussain, J

ZULFIQAR ALI ---Petitioner

versus

DIVISIONAL SUPERINTENDENT (WORKSHOPS), PAKISTAN RAILWAYS, MOGHALPURA, LAHORE and another---Respondents

Writ Petition No.4866 of 1984, heard on 18th October, 2000.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Contractual liability-R Blacklisting of a firm---Failure to issue show-cause notice---Petitioner failed to comply with its contractual obligation in stipulated period---Such failure was due to non­-availability of the material in the market---Authorities without providing opportunity of hearing blacklisted the petitioner---Validity---Mere assertion that the petitioner had ample opportunity, without the support of documents could not have a firm credence---Where an act or order inflicted civil consequences on a person in respect of his reputation or property which was harmful to interest of that person, he was entitled to be heard before such action or order was taken or passed---Before taking such a decision the person likely to be affected adversely was entitled to a notice and hearing in the matter---Order of blacklisting the petitioner without notice was illegal, of no legal effect and the same was set aside in circumstances.

Muhammad Iqbal v. Fatima Jinnah Medical College and another 1989 MLD 4237; Tristar Shipping Lines Limited v. Government of Pakistan through Secretary, Ministry of Food, Agriculture and Livestock and 2 others 1997 CLC 1475; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan,- Karachi PLD 1999 SC 1126 and Preetam Pipes Syndicate v. Tamil Nadu Slum Clearance Board, Madras AIR 1986 Mad.

Messrs Farid Sons Ltd., Karachi and others v. Government of Pakistan through its Secretary, Ministry of Commerce, Karachi and another PLD 1961 SC 537 and New Jubilee Insurance Company Ltd., Karachi v, National Bank of Pakistan, Karachi PLD 1999 SC 1126 ref.

Majid Khan for Petitioner.

Jehangir A. J0Jha for Respondent.

Date of hearing: 18th October, 2000.

P L D 2001 Lahore 16

Before Ali Nawaz Chowhan, J

MUHAMMAD ANWAR ---Appellant

versus

MUHAMMAD ASHRAF and others---Respondents

Regular Second Appeal No.362 of 1983, heard on 27th September, 2000.

(a) Interpretation of statutes--

---- Procedural law---Interpretation---Principle---Procedural law is meant for advancing the cause of justice and not for impeding the same---Procedural law is to be interpreted in such a way that the same facilitates the ends of justice and not that the same acts as trap for the litigants on trivial and technical infirmities which can arise on account of inadvertence or a bona fide mistake rather than on account of a deliberate or a wicked act.

(b) Punjab Pre-emption Act (I of 1913)---

----Ss. 4 & 15---Civil Procedure Code (V of 1908), Ss. 100 & 153---Suit for partial pre-emption ---Mis-discription of party name---Correction of bona fide mistake---Name of co-vendee was wrongly mentioned in the plaint on account of bona fide clerical mistake---Trial Court dismissed the suit whereas the Lower Appellate Court found the mistake as curable without any inhibition of limitation and decreed the suit in favour of the pre-emptors--­Validity---Correction allowed by the Lower Appellate Court was in its discretion and the same was not such which could be called for interference by High. Court through second appeal---Where judgment of Lower Appellate Court was well-reasoned, same was upheld by the High Court.

Sardar Nazeer Ahmad v. Ghulam Nabi 1984 CLC 358; Alexander Mountain & Co. v. Rumere Limited (1948) 2 All ELR 482; Municipal Commissioners, Dacca v. Gangamani Chaudhrani w/o Akshoy Kumar Basak AIR 1940 Cal. 153; AIR 1926 Cal. 612; AIR 1928 Cal. 485; AIR 1939 Cal. 175; AIR 1925 Lah. 441; Purshottam Umedbhai & Co. Iants v. M/s. Manilal & Sons AIR 1961 SC 325; Ali Mir v. Province of Punjab and another PLD 1983 Lah. 262 and Government of West Pakistan v. Ghulam Sarwar Khan PLD 1962 (W.P.) Pesh. 115 ref.

Asghar Ali Chaudhary for Appellant.

Abdul Ghani for Respondent.

Date of hearing: 27th September, 2000.

P L D 2001 Lahore 22

Before Ch. Ijaz Ahmad, J.

Mian MUHAMMAD YOUSUF---Petitioner

versus

THE COMMISSIONER, FAISALABAD DIVISION, FAISALABAD and 3 others---Respondents

Writ Petition No.2884 of 1987, heard on 19th October, 2000.

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

----S. 154---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Quashing of F. I. R. ---Principle of consistency--­Applicability--Petitioner sought quashment of F.I.R. in exercise of jurisdiction under Art. 199 of the Constitution---Validity---High Court had no jurisdiction to quash the F.I.R.---High Court having earlier refused to quash F.I.R. under its Constitutional jurisdiction in some other case, keeping in view the principle of consistency the Court could not deviate from its own judgment---Petition being not maintainable, was dismissed in circumstances.

Brig. Imtiaz's case 1994 SCMR 2142; Kh. Nazir Ahmad's case AIR 1945 PC 18; Shahnaz Begum's case PLD 1971 SC 677.; Muhammad Ramzan's case 1998 P Cr. L J 828 and Muhammad Muzafar Khan's case PLD 1959 SC 9 fol.

Yousaf Ali's case PLD 1958 SC 104; Ghulam Mustafa Khar's case PLD 1989 SC 26; Muhammad Sharif's case PLD 1997 Lah. 692; Sh. Anwar ul Haq's case 2000 PCr.LJ 1644; The Collector of Customs case PLD 1999 Pesh. 33;.Abdu1 Latif's case 1981 SCMR 1101; Mirza Muhammad Iqbal's case PLD 1999 Lah. 109 and PLD 1993 Pesh. 33 distinguished.

(b) Constitution of Pakistan (1973)--

----Art. 199----Constitutional petition---Disputed question of fact---High Court had no jurisdiction to resolve the disputed question of fact under Constitutional jurisdiction.

Muhammad Younas's case 1993 SCMR 618 rel.

(c) Punjab Local Government Ordinance (VI of 1979)---

----S. 158---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability where alternate remedy available---Petitioner, a Councillor of Municipal Corporation---Proceedings were initiated against the petitioner on the basis of allegation of fraud---Validity---Petitioner had alternate remedy to agitate the matter before the Authorities under the provisions of Punjab Local Government Ordinance, 1979---Constitutional petition was not maintainable in circumstances.

Muhammad Ismail's case PLD 1996 SC 246 ref.

Rehan Bashir for Petitioner.

Nemo for Respondents.

Date of hearing: 19th October, 2000

P L D 2001 Lahore 28

Before Maulvi Anwarul Haq, J

MUHAMMAD ISMAIL and others---Petitioners

versus

ROSHAN ARA BEGUM and others---Respondents

Civil Revision No. 1359 of 1987, heard on 19th October, 2000.

Civil Procedure Code (V of 1908)---

----O. VI, R.17---Amendment of pleadings---Defective form of suit---Failure to give chance to correct the defect---Effect---Plaintiff filed suit for declaration instead of suit for specific performance of agreement to sell--­Both the Courts below dismissed the suit only on the basis of -the defect in form of the suit---Validity---Where form of suit was found to be defective plaintiff. ought to be first given a chance to correct the same---By amendment plaintiff wanted to seek the relief of specific performance on the basis of the pleadings already on record---Such amendment would neither change the nature or complexion of the suit nor the same constitute substitution of the cause of action---High Court allowed such amendment and judgments and decrees of both the Courts below were set aside---Case was remanded to the Trial Court for decision afresh in circumstances.

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

Nusrat Javaid Bajwa for Petitioners.

Ch. Mozammal Khan for Respondents.

Date of hearing: 19th October, 2000.

P L D 2001 Lahore 31

Before Ali Nawaz Chowhan, J

IMRAN NAZEER---Petitioner

versus

SAIFULLAH JAN and others---Respondents

Civil Revision No.410 of 2000, decided on 27th October, 2000.

(a) West Pakistan Water and Power Development Authority Act (XXXI of 1958)--

----S. 8(2)(ii)---Water and Power Development Authority and its duties and functions in respect of energy---Authority under the provisions of S.8(2)(ii) of West Pakistan Water and Power Development Authority Act, 1958 is supposed to go for generation, transmission and distribution of powers and constructions and maintenance of power houses and grids.

(b) Electricity Act (IX of 1910)---

----S. 26-A---Dishonest abstraction of energy---Detection bill---Failure to follow provisions of S.26-A of Electricity Act, 1910---Effect---Where the licensee fails to follow the provisions for preparing detection bill and to justify amount, such detection bill would be an arbitrary formulation and would be taken with skepticism until the methodology prescribed by S.2¢-A of Electricity Act, 1910, for such purpose is established to have been followed.

(c) Electricity Act (IX of 1910)---

----S. 24---Show-cause notice---Object---Prior notice under S.24 of Electricity Act, 1910, is meant to enable a consumer to raise a dispute with Electric Inspector.

(d) Electricity Act (IX of 1910)---

----S. 54-C---Bar of jurisdiction---Non-compliance of provision of law by licensee---Effect---Jurisdiction of Civil Court, under S.54-C of Electricity Act, 1910, is barred only, when the licensee has itself followed the law and not otherwise.

(e) Electricity Act (IX of 1910)---

----Ss. 26-A & 54-A---Detection bill---Recovery of amount ---Scope--­Consumer is only liable to pay such dues which have been correctly and scientifically determined against him under the provisions of S.26-A of Electricity Act, 1910--Consumer is not liable to pay any such dues which are based on mere sweet will of a local formation.

(f) Electricity Act (IX of 1910)---

----Ss. 24, 26-A & 54-C---Electric supply, disconnection---Detection bill--­Failure to give notice prior to issuance of such bill---Appratus of consumer was removed by the licensee before detection bill was served---Neither notice under S.24 of Electricity Act, 1910 was served on the consumer nor the detection bill was prepared in accordance with the provisions of S.26-A of Electricity Act, 1910---Effect---Disconnection action of energy by the licensee as wells the detection bill being illegal, High Court directed the licensee to withdraw the same.

Naeem .Oil Mills case 1986 MLD 680; Mian Muhammad Munir v. WAPDA 1983 CLC 211; Pattoki Ice Factory v. Revenue Officer and others 1996 CLC 1636; Haji Sher Muhammad v. WAPDA PLD 1988 Lah. 511; 1987 CLC 1503 and Dr. Muhammad Rafiq Chaudhry v. WAPDA 1983 CLC 2397 ref.

Raja Irfan Aziz for Petitioner.

Moazzam Ali Rizvi for Respondents.

Date of hearing: 5th September, 2000.

P L D 2001 Lahore 42

Before Riaz Kayani, J

Mst. RAZIA NAWAZ alias RAZIA BANO---Petitioner

versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No.4672 of 2000, decided on 14th September, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11---Bail---Marriage of accused with the co-accused before she had attained the age of 18 years, prima facie, amounted to repudiation of her marriage with her previous husband in the exercise of option of puberty--­Presently no grounds being available to believe that the accused had committed a cognizable offence, case against them needed further inquiry--­Matter being of purely legal nature remained to be thrashed by a competent Court of Law and till then it was not only harsh but unfair to keep the spouses in jail---Accused were admitted to bail accordingly.

Mst. Sarwar Jan v. Abdul Majid PLD 1965 (W.P.) Pesh. 5 and Ghulam Muhammad.v. Emperor 140 IC 617 ref.

Mushtaq Ahmad Qureshi for Petitioners.

Ch. Muhammad Siddique for the State.

P L D 2001 Lahore 45

Before Muhammad Nawaz Abbasi, J

THE STATE---Petitioner

versus

GHULAM RASOOL and another---Respondents

Criminal Miscellaneous No.3508/BC of 2000 (Suo Motu), decided on 4th August, 2000.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/148/149 --- Cancellation of bail---Accused, after getting the concession of ad-interim pre-arrest bail while raising the general plea of alibi had got a favourable opinion from the Investigating Officer which amounted to influence the fair and independent investigation---Sessions Court had allowed bail to the accused at an early stage of investigation without there being an opinion given either by the police or by the Court qua the extent of their liability to bring their case within the ambit of S.497(2), Cr.P.C.---Accused while facing criminal charge of murder had been allowed post-arrest bail shortly after their arrest without change of circumstances under which they were refused pre-arrest bail a few days earlier---Despite the fact that the consideration for grant of bail before arrest and bail after arrest were different, Court at the time of disposal of bail application under S.497, Cr.P.C. had to attentively consider the nature of accusation, the role assigned to the accused and the evidence in the hand of prosecution in support thereof---Sessions Court probably being under the impression that the accused in the light of attribution, could claim the concession of bail as of right had extended the same wrongly to them shortly after their arrest before the conclusion of investigation--­Bail allowed to accused by Sessions Court was consequently recalled.

Muhammad Haroon and another v. The State 1994 SCMR 2161 and Muhammad Sultan v. The State 1999 PCr.LJ 1218 ref.

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

----S. 497---Bail, grant of---Plea of alibi having been raised was not supported by any evidence, such plea requiring„to be specifically proved through evidence at the trial could not be considered for the purpose of grant of bail.

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

----Ss. 497 & 498---Bail---Consideration for grant of pre-arrest bail are different to that of post-arrest bail and there is no bar for the Courts to entertain an application under S.497, Cr.P.C. and grant bail to an accused on any ground at any stage of the case, but the exercise of such power must not be uncontrolled and must be used in accordance with the settled principles for grant and refusal of bail and the Courts while exercising such power must not overlook the judicious considerations.

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

----S. 497(2)---Bail on the ground of the case being of further inquiry--­Essential prerequisite for grant of bail by virtue of subsection (2) of S.497, Cr.P.C. is that the Court must be satisfied on the basis of opinion expressed by the police or the material placed before it that there were reasonable grounds to believe that the accused was not guilty of an offence punishable with death or imprisonment for life or with imprisonment of ten years.

M. Bilal Khan, Addl. A.-G. for the State.

Ch. Muhammad Khan for Respondent/Accused.

Ch. Muhammad Ali for the Complainant.

P L D 2001 Lahore 50

Before Tanvir Ahmad Khan, J

BANKERS EQUITY LTD., STATE LIFE BUILDING, LAHORE---Decree-Holder

versus

ALI PAPER AND BOARD MILLS LTD.

and 11 others---Judgment-Debtors

Execution Application No.43-B of 1998, decided on 31st August, 2000

Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 11 & 66---Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), S.18--;Execution application, withdrawal of---Property of judgment-debtor was put to auction for the satisfaction of decree passed by Banking Court---Highest bid in earlier auction was for a sum of Rs.52 millions and after negotiation the highest bidder increased the purchase price to a sum of Rs.99.492 millions--­Being dissatisfied with the price second auction was ordered and in the subsequent auction the highest bid was only for a sum of Rs.26 millions--­Decree-holder (Bank) with a view that most of the sale price would be taken by Sales Tax Department, filed application for withdrawal of execution petition---Validity---High Court did not appreciate the conduct demonstrated by the Bank functionaries in handling public amount---Order of the Court having fully been satisfied and complied with, offer of Rs.99.492 millions was confirmed---Application for withdrawal of execution petition was dismissed in circumstances with Court observations on the conduct of functionaries of decree-holder Bank and directing office to send copy of the judgment to Governor State Bank for his information.

Ejaz-ul-Ahsan and Ahmer Bilal Soofi for the Decree-Holder.

Imtiaz Rashid Siddiqui for the Judgment-Debtor.

M. Ilyas Khan, Naseer Ahmed Bhutta, Izhar-ul-Haq Sh., Sultan Mehmood, Iftikhar Ullah Malik, Mrs. Khalida Abid, Fawzi Zafar, A.A.-G., Iftikhar Hussain Shah and Majeeb-ur-Rehman, Advocates.

Date of hearing: 4th July, 2000.

P L D 2001 Lahore 56

Before Zafar Pasha Chaudhary, J

AMJAD HUSSAIN and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.680 and Criminal Revision No.484 of 1999, heard on 22nd May, 2000.

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

----Ss. 336/324---Appreciation of evidence---Ocular version was consistent in all material points and was supported by medical evidence as well as by evidence of motive---Incident having taken place in broad daylight, no question either of mistaken identity or of substitution of accused could arise---Conviction of accused was upheld in circumstances---Accused and his absconding co-accused both admittedly had fired from their respective guns at the same leg of the victim which .was amputated---If the co-accused had contributed in the injury or causing the hurt as a result of which .the amputation or dismemberment was caused, then accused alone could not be held responsible for the same---Amputation of leg of the accused alone as ordered by the Trial Court because his co-accused was absconding was not just and proper---Additionally the sentence awarded to accused as Qisas was not executable because a fire could not be shot from a repeater gun by the victim at the leg of the accused with the same force and intensity and a precisely similar injury could not be caused by the injured at the person of the accused---Dismemberment or amputation of only one of the organs of the body might be considered as a circumstance in favour of the accused but it could not be claimed as a matter of right that in case of dismemberment or amputation of one organ of the body the maximum punishment would be five years---Sentence of Qisas was set aside in circumstances and instead alternate sentence of Tazir of seven years R.I. was awarded to accused with payment of Arsh which was half of the Diyat failing which the appellant will remain in jail till the payment of amount of Arsh---Benefit .of S. 382-B, Cr.P.C. was not extended to the appellant.

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

----S. 334---Qisas has to be in equal terms and can neither be more nor less---Offender has to be meted out with same treatment as has been done to the victim.

Syed Afzal Haider assisted by Rai Zameer-ul-Hassan for Appellant.

Bashir Ahmad Gill for the State.

Date of hearing: 22nd May, 2000.

P L D 2001 Lahore 63

Before Nasim Sikandar, J

KHALIL-UR-REHMAN---Petitioner

versus

Mst. HALIM KHATOON---Respondent

Civil Revision No. 518 of 1989, .decided on 24th August, 1999.

(a) Fraud---

---- Fraud, allegation of---Onus to prove---Person alleging fraud has to prove the same.

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

----S. 39---Sale of property---Cancellation of document---Allegation of fraud---Onus to prove---Plaintiff simply denied the transaction and raised a plea that the disputed registered sale-deed was executed on her behalf by ' impersonation---Trial Court decreed the suit in favour of the plaintiff--­Lower Appellate Court also upheld the judgment of the Trial Court--­Defendant produced brother-in-law of plaintiff as witness since he remained associated with the bargain and was also present even at the time of execution of the sale-deed---Effect---Plaintiff was to prove that she had been deprived of her property fraudulently---By---simply denying the transaction burden on the plaintiff was not properly discharged---Delivery of possession was never disputed and the plaintiff wanted recovery of possession also--­Where the defendant was in possession of suit property and also had registered sale-deed, the defendant was not supposed to lead any further evidence---Defendant had produced two witnesses, one was close relation of the plaintiff and the other was Lambardar of the village who had identified the plaintiff at the time of registration of sale-deed---Judgments and decrees of both the Courts below were based upon misreading and non-reading of evidence and the same were set aside---Suit was decreed in circumstances.

Mohabbat v. Asadullah Khan and others PLD 1989 SC 11 L; Ghulam Muhamamd and others v. Muhammad Aslam and Others PLD 1993 SC 336; Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778; Muhammad Shafi and others v. Allah . Dad Khan PLD 1986 SC, 519 and Hassan Ali v. District Judge PLD 1969 SC 167 ref.

Mst. Babra and others v. Abdul Akbar ,ad others 1973 SCMR 335 and Nasim Ali and another v. Fazal Hussain and 5 others 1981 CLC 985 distinguished.

Muhammad Farooq Chishti for Petitioner.

Khan Zahid Hussain Khan for Respondent.

Date of hearing 9th June, 1999.

P L D 2001 Lahore 70

Before Tanvir Ahmad Khan, J

Messrs ZIA TRAVELS, FAISALABAD through

Abdul Waheed Khan---Petitioners

versus

SECRETARY, REGIONAL TRANSPORT AUTHORITY, FAISALABAD DIVISION and 4 others---Respondents

Writ Petitions Nos.24403-98, 22721-97, 18810-99, 1184-99, 3472-99, 13212-97, 1413-2000, 13515-97, 23633-97, 22054-97, Cr. Org. No.50-W-99 .in W.P. No. 15098-98, Cr. Org. No. 1688-W-98 in W.P. No.24403-98 and Crl. Org. No. 792-W-98 in W.P. No.13515-93, decided on 18th September, 2000.

(a) West Pakistan Motor Vehicles Ordinance (XIX of 1965)---

----S. 80---Halting points---Object and scope---Using of halting points for starting and terminating journey---Sanctioning of the points to a specific party or transporters---Validity---Halting points are sanctioned under S.80 of West Pakistan Motor Vehicles Ordinance, 1965, by the Government and the same can only be utilized for a short period just to enable the passengers to go on board or to alight from buses/coaches---Halting points cannot be used for starting and terminating the journey---All public service vehicles can stop for a very short duration just for the purpose of picking up and alighting the passengers from the vehicles---Such points are not sanctioned to any specific party or transporters.

Sunny Flying Coach Service v. Government of Punjab and others 1995 CLC 1992 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Disputed question of fact--­Constitutional jurisdiction of High Court---Scope---Wherein resolution of disputed question of fact a detailed enquiry is required, jurisdiction of High Court under Art. 199 of the Constitution is not attracted.

(c) West Pakistan Motor Vehicles Ordinance (XIX of 1965)---

----S. 80---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Allotment of bays at general bus stand---Claiming allotment of a particular bay---Validity---No body had a vested right to claim a particular bay as allotment of bay was not regulated by any statutory rule---Such allotment was merely a contractual matter governed by terms and conditions under which the same was allowed---High Court directed that in order to streamline the movement of transport so as to have disciplined traffic, the bays should be allowed/allotted on route basis to avoid rat race among the drivers which could cause many accidents taking lives of innocent persons.

Irfan Masud Sh. for Petitioner.

Farooq Baidar, Ch. Ali Muhammad and Fawzi Zafar, A.A.-G. for Respondents.

Date of hearing: 3rd July, 2000.

P L D 2001 Lahore 78

Before Syed Zahid Hussain, J

Mst. SIDDIQAN AFZAL

and 6 others---Petitioners

versus

ASSISTANT COLLECTOR OF CENTRAL EXCISE AND LAND

CUSTOMS, FAISALABAD and 2 others---Respondents

Writ Petition No.2454 of 1983, heard on 26th September, 2000.

(a) Interpretation of statutes----

----Repeal of a statute---Effect---Effect of repealing a statute is to obliterate the same as completely from the record of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst the same was an existing law.

Understanding Statute by S.M. Zafar, p. 399 ref.

(b) Customs Act (IV of 1969)----

----Ss. 168, 180 & 221(1)---Sea Customs Act (VIII of 1878), S.167(81)--­Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Show­-cause notice under S.168(2) of Customs Act, 1969---Failure to give such notice within statutory period---Gold weighing 50-1/2 tolas was seized from the predecessor-in-interest of the petitioners in year 1963 under S.167(81) of Sea Customs Act, 1878--Sea Customs Act, 1878 was repealed in the year 1969 and a new law was enacted---Authorities issued show-cause notice qua the seizure on 8-8-1978 under the new statute i.e. Customs Act, 1969 and passed an order for confiscation of the seized gold and appeals before the Authority as well as the Government were dismissed---Validity---Seizure of the gold would be deemed to have been made under the repealing Act (Customs Act, 1969) in view of the effect of repeal of Sea Customs Act, 1878, and the saving clause of S.221(1) of Customs Act, 1969 and procedure for confiscation as prescribed under Ss. 180 & 168 of Customs Act, 1969 had to be followed by the Authorities---Where no notice envisaged by S.168(2) of Customs Act, 1969 was issued within limitation available to the Authorities, orders of confiscation passed by them were not sustainable in law and were illegal and without lawful authority---Authorities were directed to return the gold to the petitioners.

Haji Noor ul Haq v. Collector of Customs and others 1998 MLD 650 and Joint. Secretary, Central Board of Revenue (Customs) and others v.

Raja Nazar Hussain and another 1991 SCMR 647 ref.

Zaheer Ahmad Khan for Petitioners.

Izharul Haq Sheikh, for Respondents.

Date of hearing: 26th September, 2000.

P L D 2001 Lahore 84

Before Riaz Kayani, J

JHAMMAD ASLAM---Petitioner

versus

INSPECTOR-GENERAL and others---Respondents

Writ Petition No. 11221 of 2000, heard on 19th October, 2000.

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

----S. 182---False information with intent to cause public servant to use his lawful power to the injury of another person---Scope---Prerogative for proceedings under S.182, P.P.C. lies only with the police officer who has moved the machinery of law against the accused persons nominated in the F.I.R. by the complainant---No other Authority can direct the concerned police officer to proceed against the first informant who has given the false information.

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

----S. 182---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings---Occurrence having taken place in dark hours of the night, possibility of mistaken identity of accused by the complainant could not be ruled out---Magistrate, therefore, instead of directing the police officer authoritatively to proceed against the complainant for nominating innocent persons in the F.I.R., should have left it to the discretion of the concerned police officer to use his prerogative if he so desired strictly in accordance with law---Six injuries having been found on the person of the complainant on the next day of the incident on his medical examination showed that some occurrence had taken place---Said direction of the Magistrate had curtailed the independent exercise of will by the police officer and order for registration of the case under S.182, P.P.C. against the complainant passed by the Magistrate was, therefore, without jurisdiction--­Role of the Magistrate had ended as soon as he agreed with the report of the police officer and discharged the accused and the direction to proceed against the complainant was beyond his powers---Even otherwise, the impugned order also suffered from another illegality which was absence of a show-­cause notice to the complainant against whom proceedings under S.182, P.P.C. were contemplated to be taken which were judicial in nature--­Before taking a judicial action in all fairness, the subtleties of law required at least a show-cause notice asking from the complainant the reasons why he should not be proceeded against for which he should have been given a chance to reply---Entire proceedings adopted in the case being illegal and without jurisdiction could not be remedied by directing the police officer to make up his mind afresh and the same were quashed accordingly.

Muhammad Murad v. The State 1983 P.Cr.LJ 1097; Sarwar Begum v. The State 1974 PCr.LJ Note 114 at p.73; Khan Ghulam Qadir Khan Khakwani v. A.K. Khalid PLD 1960 Lah. 1039 and Mian Fazal Ahmad v. The State PLD 1970 Lah. 726 ref.

Sh. Naveed Sheharyar for Petitioner.

Khadim Hussain Qaisar for Respondents Nos.8 and 9.

Date of hearing: 19th October, 2000.

P L D 2001 Lahore 89

Before Ali Nawaz Chowhan, J

SMOOTH WAY CONSTRUCTION---Appellant

versus

PROVINCE OF PUNJAB---Respondent

First Appeal from Order No. 138 of 1999, heard on 27th October, 2000.

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

----S. 20(a)---"Resides" in S.20(a), C.P.C.---Connotation---Word "resides" within the meaning of S.20(a), C.P.C. refers to natural persons and not to legal entity such as Government.

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

----S. 20(a)---Expression "carries on business "---Connotation---Such expression applies to commercial business and not a business of State or Government.

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

----S. 20(a)---Territorial jurisdiction---Place of institution of suit---Dispute was between private person and Governmental Department---Cause of action arose at place 'S' whereas the plaintiff instituted suit against the department at place "L" as the place "L" was provincial capital---Trial Court dismissed the objection qua territorial jurisdiction and decreed the suit in favour of the plaintiff---Lower Appellate Court allowed the appeal and returned the plaint to the plaintiff for presenting the same before competent Court at place 'S'--­Validity---Provision of S.20(a), C.P.C. would alone apply to Government--­Trial Court was in error in disposing of the objections with respect to the territorial jurisdiction and had illegally assumed jurisdiction---Findings of the Lower Appellate Court were upheld in circumstances.

Subbayaya Mudali v. Government 1 Mad. High Court Rep. 286; AIR 1927 Mad. 689; AIR 1939 Lah. 818; AIR 1950 Cal. 208; AIR 1951 Pb. 92; AIR 1953 Cal. 1; Mian Fazal Muhammad Nizam-ud-Din Baig & Co. v. The Province of West Pakistan and others PLD 1969 Lah. 453; AIR 1955 Mad. 345 and Pakistan v. Waliullah Sufyani PLD 1965 SC 310 ref.

Riaz Karim Qure-shi for Appellant. Mrs. RoshanAra, A.A.-G. for Respondent.

Date of hearing: 27th October, 2000.

P L D 2001 Lahore 94

Before Khawaja Muhammad Sharif, J

IJAZ AHMAD and others---Petitioners

versus

THE STATE and others---Respondents

Writ Petition No.21045 of 2000, decided on 27th October, 2000.

(a) Constitution of Pakistan (1973)---

----Art. 199----Constitutional petition---Holding of enquiry by High Court--­Validity---Where there was clear abuse of powers/authority, High Court was under Constitutional duty to ensure that people were dealt with in accordance with law---High Court could hold enquiry in circumstances.

(b) Administration of justice---

---- All the jurisdiction/authority, is meant to do justice.

(c) Administration of justice---

---- Proper object of procedure in any system of administration of justice is to help and not to thwart the grant to people of their rights---All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy---Ideal must always be a system that gives to every person what is his due share---Courts have to safeguard the fundamental rights of every citizen and to protect the life, liberty and property from illegal, unauthorised and mala fide acts of omission and commission by any authority or person.

(d) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Possession, restoration of---Enquiry of facts by High Court---Dispossession without any legal order from any Court---Statutory functionaries forcibly took over possession of property under tenement of petitioner without any legal order from any Court---Such dispossession was through show of force---High Court appointed Local Commission for enquiry into the facts---Report of the Local Commission affirmed the alleged act of forcible dispossession of the petitioners ---Effect--­Act of forcible dispossession of the petitioners with the help of statutory functionaries was illegal and had no sanction of law---High Court directed the respondents to put back the petitioners in possession within 24 hours--­Constitutional petition was allowed accordingly.

Mian Javed-Iqbal, Advocate.

Ch. Muhammad Jehangir Wahla, A.A.-G. with Saleem Sikandar, A. I.-G. (Legal).

Ch. Abdur Rashid for Respondent No.7.

Mian Jamil Akhtar, Advocate, Local Commission.

P L D 2001 Lahore 98

Before Riaz Kayani, J

SHABANA MUSTAFA---Petitioner

versus

Dr. MUHAMMAD KHALID and others---Respondents

Criminal Miscellaneous No.214-Q of 2000, heard on 7th November, 2000.

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

----S. 500---Criminal Procedure Code (V of 1898), Ss.198 & 561-A--­Defamation---Punishment for---Quashing of proceedings---Complaint under S.500, P. P. C. could only be filed in terms of S.198, Cr.P.C. by the person aggrieved by such offence---Person aggrieved by the imputation made in the letter allegedly written by the accused to the Prime Minister was the father or the mother of the complainant---Mother of the complainant could bring the complaint through another person after taking leave of the Court and his father could file the complaint directly---Next kith and kin of the defame person was not an aggrieved person for the purpose of filing the complaint--­Complainant being not an aggrieved person by the aforesaid imputation contained in the letter of the accused, he had no locus standi to file the complaint and no action under the law could be taken on the same by the Magistrate---Proceedings initiated in the complaint being without lawful authority and of no legal effect were quashed accordingly.

Malik Muhammad Ibrahim v. State 1985 PCr.LJ 929 distinguished.

M. Yaseen v. The State 1994 PCr.LJ 1939; Ramdhani v. Swamidin AIR 1953 Vindh. Pra.9; Ghulam Murtaza v. State and others PLD 1966 Kar. 337; Mst. Sarwar Jan v. Ayub and another 1995 SCMR 1679 and Haji Sher Hassan Khan v. Hidayatullah and another 1996 SCMR 1476 ref.

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

----S. 198---Penal Code (XLV of 1860), S.500---Defamation---Prosecution for defamation---Where an imputation is made regarding moral character of a female who is living in the shelter of her father, brother or husband, a complaint can be brought undoubtedly by such male person, because in that eventuality the male kith and kin in whose abode she is residing is also indirectly affected by such imputation.

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

----Ss. 561-A & 439---Inherent jurisdiction of High Court not affected by exercise of revisional jurisdiction---Inherent power of High Court to check abuse of process of a Court under S.561-A, Cr.P.C. is extensive and is not circumscribed by 5.439, Cr.P.C.

Mst. Sarwar Jan v. Ayub and another 1995 SCMR 1679 and Haji Sher Hassan Khan v. Hidayatullah and another 1996 SCMR 1476 ref.

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

----S. 249-A---Power of Magistrate to acquit accused at any stage--­Application under S.249-A, Cr.P.C. can be brought at any stage and right of accused in this regard is not abridged by law.

Sh. Zia Ullah for Petitioner. Nazir Ahmad Butta for Respondent No. 2. Saeed Ahmed Tirmizi Syed for the State.

Date of hearing: 7th November, 2000.

P L D 2001 Lahore 105

Before Iftikhar Hussain Chaudhry, J

NIAMAT ALI and others---Petitioners

versus

THE STATE---Respondent

Criminal Revision No-425 of 1999, decided on 12th December, 2000.

(a) Criminal law-­----Object and purpose of.

The criminal law is the strongest arm of all the normative systems of the society by which it punishes, controls, curbs and prevents crime in the society. The evil has lived with the mankind from its beginning and the society has to make continuous efforts to keep it at bay and the criminal law keeps undergoing change so as to meet the new challenges posed by the crime culture. The basic purpose of the criminal law and criminal justice administration is to save the society from evil, to free it of crime, or, at least to make crime an unpleasant, detestable, unattractive and unacceptable activity or career. The criminal law, thus, has to be interpreted, applied and enforced in a manner so as to achieve these objectives. A dynamic and progressive approach in the application and enforcement of criminal law is required so as to eliminate the mischief which has crept into the criminal justice administration whereby the accused frustrate its provisions by deceit, cleverness, sham excuses and contrivances or get away from the rigours of law due to loopholes in the law or the procedure. Courts should take a dynamic approach in order to discouraging crime.

Zeeshan Kazmi v. The State PLD 1997 SC 267 and Abdul Bari v. Malik Amir Jan and 4 others PLD 1998 SC 50 ref.

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

----S. 338-F---Criminal Procedure Code (V of 1898), Ss.497 & 499---Grant of bail and acceptance of surety bonds---Applicability and scope of S.338-F, P.P.C.---Provisions of S.338-F, P.P.C. make the Islamic Law on the subject applicable not only to cases relating to the offences enumerated in Chap. XVI of Penal Code but also to all matters ancillary or akin thereto---Law of bail is a necessary adjunct of the substantive law. and the Islamic Law is applicable to it and while considering or interpreting the law of bail and other matters relating to it in cases of hurt or homicide, Islamic Law would be followed and it would come into play while considering the questions relating to grant of bail, cancellation of bail, terms of bail, qualifications and liabilities of sureties and consequences which follow due to non-surrender of the accused into judicial custody.

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

----Ss. 497 & 499---Grant of bail and acceptance of surety bond--­Considerations to be kept in view by the Court while granting bail to accused and accepting surety bonds---Most important consideration to be kept in view by the Court while allowing bail to an accused is his probability of standing trial at a subsequent stage---Court has to satisfy itself that the accused would stand the trial and he was being given in the custody of a person who was in a position to surrender the accused into the custody of the Court---Suitability of the proposed surety should be determined by the Court at the time of acceptance of his bonds---Financial resources of the prospective surety, his character and the station he occupies in life, besides his relationship with the accused and the influence he could wield over the accused, must be considered at the time of acceptance of surety bonds---Mechanical acceptance of surety bonds from persons who lack the capability to produce the accused before the Court has contributed to a considerable extent in bail jumping.

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

----Ss. 497 & 499---Penal Code (XLV of 1860), Chap. XVI [Ss. 299 to 338-H]---Grant of bail and acceptance of surety bond---Procedure to be followed in matters of bail relating to offences contained in Chap. XVI of the . Pakistan Penal Code, 1860 and acceptance of bonds detailed.

The Court after determining entitlement of the accused to be released on bail or after grant of bail by a superior Court should accept bonds from suitable sureties. When the accused is required by the Court to appears before it to stand trial or for any other purpose the surety/sureties should also be summoned for that date/dates. In case of absence of the accused the bonds should be forfeited and surety called upon to produce the accused on the next date of hearing. The surety should be afforded two or three opportunities, keeping in view the facts and circumstances of the case, to bring the accused before the Court. Police assistance if required may also be provided to the surety. In the event of failure of the surety to surrender the accused into the custody of the Court, the surety would be committed to judicial lock-up (as civil prisoner) for a period not exceeding six months at a time. The surety shall be released from custody whenever the accused surrendered to judicial custody. The surety can be allowed bail as well on the terms of the original bond. After the expiry of terms of confinement, or sooner on the motion of surety, another enquiry should be conducted to ascertain the ability or inability of the surety to bring the accused before the Court and if it is found that the accused has gone beyond the reach of the surety, from where he could not be brought by the surety, the surety should be released from custody after payment of reasonable penalty, allowance being made for the time spent in confinement by the surety.

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

----Ss. 514, 497 & 439---Penal Code (XLV of 1860), Ss.302/324/148/149--­Forfeiture of bond---Accused after having been allowed bail on the ground of statutory delay had jumped bail---Bonds furnished by the accused and the sureties were forfeited and penalty of Rs.2,50,000 on each surety was imposed---Sureties were given numerous opportunities to locate and bring the accused before the Court, but they failed to discharge their liability---Police assistance was also provided to the sureties and other relatives of the accused to trace him---Trial Court was directed by High Court to give one last opportunity to the sureties (petitioners) to produce the accused before the Court at least within thirty days---Sureties had already deposited a sum of Rupees one lac each in the Trial Court and recovery of remaining amount was directed by High Court to be postponed, but attachment of their movable property was kept intact---Impugned order of Trial Court being valid and in accordance with law, revision petition was dismissed accordingly.

Sher Ali v. The State 1998 SCMR 190; Zeeshan Kazmi v. The State PLD 1997 SC 267; Abdul Bari v. Malik Amir Jan and 4 others PLD 1998 SC 50 and Kifala, Vol. V, p.49, Chap.2 of the Urdu Edn. of Fatawa-e­-Alamgiri, published by Qanuni Kutab Khana, Lahore ref.

M. Iqbal Bhatti for Petitioner.

Maqbool Elahi Malik, A.-G., Punjab assisted by Salma Malik, A. A.-G.

Syed Hashim Raza Shamsi for the Complainant.

Date of hearing: 27th October, 2000.

P L D 2001 Lahore 113

Before Javed Buttur and

Ali Nawaz Chawhan, JJ

DOST MUHAMMAD and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.483, Criminal Revision No.359 and Murder Reference No.253 of 1995, heard on 22nd November, 2000.

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

----Ss. 302/34 & 300/319/34---Appreciation of evidence---Sentence---Motive story suggesting enmity between the deceased and the accused was not cogently established---Facts of the case did not suggest any premeditation or sharing of common intention by the accused for causing death of the deceased---What might have transpired a short while before the episode had not been brought on the file and it could be possibly assumed that there might have been an exchange of jokes, on account of which the accused resorted to the act of inflating the stomach of the deceased with an air pump---Probability was that the accused might not be having knowledge that their such act might risk the life of the deceased and the same might have been done in jest or mistakenly---Ingredients of intention and knowledge as envisaged under S.300, P.P.C. were, therefore, missing in the case, which was one of either recklessness or negligence---Accused in circumstances, had committed the offence of Qatl-e-Khata---No justification for further enhancement of amount of compensation was thus found---Conviction and sentence of accused under Ss.302/34, P.P.C. were consequently set aside and instead they were convicted under 5.319, P.P.C. and sentenced to five years' R.I. as "Tazir" and to pay Diyat amounting to Rs.2,80,000 which was to be equally shared by both of them.

Cunningham's case (1957) 2 QB 396, (1957) 2 All ER 412; Parmenter's case (1991) 4 All ER 698; Mowatt's case (1968) QB 421; Blackburn v. Colvin 191 Kan. 239, 380 P.2d 432, 437; Dr. Khusaldas Pammandas v. The State of Madhya Pradesh AIR 1960 Madh. Pra. 50; Sukaro Kobiraj ILR 14 Cal. 566 and Inayat v. The State PLD 1961 (W.P.) Lah. 195 ref.

(b) Words and phrases--

---Recklessness, negligence and rashness Connotation Distinctive features---Recklessness is consciously taking of an unjustifiable risk, whereas negligence is the inadvertently taking of an unjustifiable risk---If a person was aware of the risk and decided to take it, he was reckless and if he was unaware of the risk but ought to have been aware of it, he was negligent--­Negligence and recklessness both, in a general sense, are same species--­While rashness is acting in the hope that no mischievous consequences will ensue though aware of the likelihood of such consequences, negligence is acting without the awareness that harmful or mischievous consequences will follow---Reasonable foresight is the criterion to determine whether the act was rash or negligent.

Blackburn v. Colvin, 191 Kan. 239, 380, P.2d 432, 437; Dr. Khusaldas Pammandas v. The State of Madhya Pradesh AIR 1960 Madh. Pra. 50 and Sukaro Kobiraj's case ILR 14 Cal: 566 ref.

(c) Malice---

----Connotation---In cases requiring "malice" it is not sufficient that if an accused had stopped to think, it would have been obvious to him that there was a risk---Accused must actually know of the existence of the risk and deliberately take it---To be malicious the accused must actually foresee some harm and the fact that he ought to have foreseen is, at best, some evidence that he did foresee.

Parmenter's case (1991) 4 All ER 698 and Mowatt's case (1968) QB 421 ref.

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

----S. 34---Common intention---Applicability---Section 34, P.P.C. is as much applicable to sharing of knowledge as it is applicable to the sharing of intention.

Inayat v. The State PLD 1961 (W.P.) Lah. 195 ref.

Mian Aftab Farrukh and M.A. Zafar for Appellants.

Ch. Haider Bakhsh for the Complainant.

A.H. Masood for the State.

Date of hearing:.22nd November, 2000.

P L D 2001 Lahore 123

Before Iftikhar Hussain Chaudhry, J

Mst. HANIFAN BIBI and another---Petitioners

versus

ZULFIQAR and another---Respondents

Criminal Miscellaneous .No.6285-BC of 2000, heard on 12th December, 2000.

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

----S. 498---Anticipatory bail, grant of---Grant of bail in anticipation of arrest to an accused was an extraordinary concession which was to be granted where; the case, prima facie, was false; the involvement of the accused was actuated by malice; the aim of the complainant was to humiliate the otherwise respectable accused and to cause irreparable injury to his reputation and liberty or the case was politically motivated ---Indiscriminative grant of anticipatory bail was disapproved by High Court---Concession of anticipatory bail was rarely conferred on the accused in serious cases like murder.

Wajid Ali v. Mumtaz Ali and another 2000 MLD 1172; Federation of Pakistan v. Gul Hassan and others PLD 1989 SC 633; PLD 1990 SC 1172; 1997 PCr.LJ 850; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 87 and Sadiq Ali v. The State PLD 1966 SC 589 ref.

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

---.-S. 109---Abetment---Abetment in the offence of murder was as much a serious offence as that of murder itself and it could not be lightly treated or to take it for granted that the allegation of abetment was made against the accused just for the sake of making some sort of accusation against him--­Absence of direct evidence of abetment or conspiracy was not a factor to consider a person accused of abetment to be innocent as a rule---Evidence of conspiracy or abetment could be indirect or circumstantial and each case had to be examined in the light of peculiar facts of that case, in that context--­Provisions of S.109, P.P.C. are a valid law.

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

----S. 497(5) & 498---Penal Code (XLV of 1860), Ss. 109, 302 & 304--­Anticipatory bail, cancellation of---Bail was granted to accused by Court below by taking an incorrect and clouded view of the law on the subject and the facts of the case were also mis-appreciated---Result of an early investigation when the accused was at large, was also given undue weight--­Accused having been found guilty in the case anticipatory bail allowed to accused was cancelled.

Mian Muhammad Sikandar Hayat for Petitioners. Ch. Abdul Aziz for the State. Ch. Naeem Asif for Respondents.

Date of hearing: 12th December, 2000.

P L D 2001 Lahore 129

Before Amir Alam Khan

and Syed Zahid Hussain, JJ

ANJUMAN PRIZE BOND DEALERS---Appellant

versus

PROVINCE OF PUNJAB and 3 others---Respondents

Intra-Court Appeals Nos.344, 380, 395, 402 and 693 of 2000, heard on 14th November, 2000.

(a) Constitution of Pakistan (1973)---

----Art. 18---Right of lawful business or trade---Scope---Every citizen, under Art. 18 of the Constitution, has a right to enter into any lawful profession or occupation or to conduct any lawful trade or business.

(b) Contract---

----Wagering contract---Meaning.

Black's Law Dictionary, 6th Edn. ref.

(c) Words and phrases--

----"Wager"---Defined.

Black's Law Dictionary, 6th.Edn. ref.

(d) Constitution of Pakistan (1973)---

----Art. 18---Lawful 'trade or business---Wagering contract ---Scope--­Wagering contract is practically synonymous with the words betting and gambling and the terms are so used in common parlance---Such contract is unlawful and cannot be termed as lawful trade or business.

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

----S. 23---Constitution of Pakistan (1973), Art-199 ---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Prize Bond dealers ---Parchi system---Wagering contract---Contract opposed to public policy--­Scope---Prize Bond dealers instead of selling prize bonds used to issue serial numbers of Prize Bonds to their customers commonly known as Parchi system---Said system was declared to be illegal by the Government in its Circular---Circular was challenged in Constitutional petition before High Court---High Court dismissed the petition---Validity---Agreement between the parties was that of wagering, which was synonymous with betting or gambling---Where such contract was allowed to be entered into and given effect, the consideration or the object of the agreement would be unlawful and the same would become void---Such agreement was not only immoral but also opposed to the public policy---High Court expressed its concern that it would be unjust and unfair to leave the people in the hands of unwary Prize Bond Dealers, who had established their business without the backing of any law as also without any license thereby regulating their affairs---Sale and purchase of Prize Bonds was backed by guarantee of the State and so was the case about the prizes while in case of the dealers no such guarantee existed---Dealers were free to go back on their promise and the grievance of the Parchi-holders could not be redressed in a Court of law for no wagering contract could be enforced in a Court of law.

Ghulam Haider and 7 others v. Station House Officer, City Police Station, Quetta and 9 others PLD 1988 Quetta 52; Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmed Khan PLD 1975 SC 667 and Krishan Kumar Narula v. State of Jammu and Kashmir and others AIR 1967 SC 1368 distinguished.

Muhammad Shahzad Shaukat for Appellant.

Nemo for Respondents.

Date of hearing: 14th November, 2000.

P L D 2001 Lahore 135

Before Amir Alam Khan and Syed Zahid Hussain, JJ

NATIONAL BANK OF PAKISTAN, SHAHRAH-E-QUAID-E-AZAM LAHORE---Appellant

versus

Messrs CH. AUTO AND TOOLS AGENCY---Respondent

First Appeal from Order Nos.31; 32, 33, 34, 35, 36, 37, 38 and 39 of 1986, heard on 4th October, 2000.

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

----S. 47---Execution of decree---Executing Court, jurisdiction of---Decision of matter pertaining to execution before filing of execution petition---Validity---Decree was formal expression of adjudication which conclusively determined the rights of the parties with regard to all or any of the matters in controversy in the suit---Satisfaction of decree could be obtained by the decree-holder by executing the same, while the judgment-debtor could also satisfy the decree by complying therewith---Decree could be satisfied by the execution thereof while the other mode open to the judgment-debtor was to obtain discharge by tendering the decretal amount to the decree-holder--­Matter fell in the domain of execution, satisfaction and discharge of the decree in both the cases---Application under S.47, C.P.C. was maintainable before the executing Court prior to filing of execution petition.

Erusappa Mudaliar v. Commercial and Land Mortgage Bank Limited ILR 23 Mad. 377 ref.

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

----O. XXVI, R.10---Local Commissioner---Appointment---Delegation of issues to Local Commissioner---Admitting findings in evidence---Any issue for inquiry can be referred to Local Commissioner under the provisions of O.XXVI, R.10, C.P.C. and his report is evidence in the suit.

Muhammad Bakhsh v. Nizam Din PLD 1978 Lah. 31 ref.

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

----S. 104 & O.XXVI, R.10---Local Commissioner---Report of---Principle of estoppel--Applicability---Appointment of the Local Commissioner was made with the consent of appellant---No objection was raised to the report before the Trial Court but the appellant refused to accept the report before High----Validity---Where no objection was raised on the report, the was accepted by the party---Appellant failed to point out any vitiative infirmity in the judgment of the Trial Court---Appeal was dismissed in circumstances.

Mian Hamid Farooq for Appellant.

Nemo for Respondent.

Date of hearing: 4th October, 2000.

P L D 2001 Lahore 139

Before Amir Alam Khan

and Syed Zahid Hussain, JJ

SHAFAQAT IQBAL and others---Petitioners

versus

GHULAM RASOOL and another---Respondents

Civil Revision No.2205 of 1985, decided on 21st November, 2000.

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

----Ss. 96---Appeal---Forum of---Determination---Forum is determined according to the valuation of the suit as fixed by the plaintiffs.

Sadar Din v. Elahi Bakhsh and another PLD 1976 Lah. 1 ref.

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

----S. 115---Revision---Administration of justice---Mistake of Court--­Effect---Where a litigant had remained a victim of technicalities of procedure or mistakes of the Court, High Court would not refrain from exercising its revisional jurisdiction---Refusal to exercise such jurisdiction would amount to refusing relief to a litigant at the portal of justice---Acts or omissions of Court not to injure a litigant.

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

---Ss. 96 & 115---Revision---Forum of, appeal wrongly determined--­Plaintiff had evaluated his suit at Rs.200---Trial Court decreed the suit and appeal was filed before the Lower Appellate Court---Appeal was returned to the defendant on the ground that the value of the suit property was Rs. 1,50,000 as such the Lower Appellate Court did not have the jurisdiction---Defendant accepted the order of the Lower Appellate Court and preferred appeal before High Court---High Court dismissed the appeal in limine for the reason that the Lower Appellate Court had wrongly decided the matter of jurisdiction and the same lay with the Court below---Defendant after the order of High Court filed instant revision petition before High Court---Validity---Valuation as fixed in the plaint unless modified of corrected by the Court, determined the forum of appeal---Where the valuation was accepted by the Trial Court, the appeal as filed before the Lower Appellate Court was competent---Appeal was erroneously returned by the Lower Appellate Court and although the defendant had accepted the order, yet the same would not make any difference firstly for the reason that the mistake committed by the Court could not injure any litigant; secondly the acceptance of the return could not also estopped the defendants from challenging the order of the Lower Appellate Court---Suitor could not be estopped against the law---Appeal was remitted by High Court to the Lower Appellate Court for decision on merits by allowing the revision.

Water and Power Development Authority and another v. Messrs Pakistan Associated Construction 1992 CLC 771; Muhammad Din v. Muhammad Amin PLD 1995 Lah. 15; Muhammad Aslam and another v. Munshi Muhammad Behram and another 1991 SCMR 1971; Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs 1992 SCMR 2334; Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Namdar Khan v. Muhammad Akram Khan and 14 others 1993 SCMR 434 ref.

(d) Act of Court----

---- Mistake of Court---Not to injure a litigant.

Ch. Rashid Ahmad for Petitioners.

Ch. Muhammad Anwar Bhinder for Respondents.

Date of hearing: 2nd October, 2000.

P L D 2001 Lahore 143

Before Malik Muhammad Qayyum

and Raja Muhammad Sabir, JJ, WESTINGHOUSE ELECTRIC CORPORATION, THE QUADRANGLE, 4400 ALAFAYA TRAIL ORLANDO, FLORIDA, U.S.A. and 3 others---Appellants

versus

WAK ORIENT POWER AND LIGHT LIMITED, GULBERG-III, LAHORE---Respondent

Regular First Appeal No.302 of 1999, decided on 12th October, 2000.

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

----O. VIII, R.10---Arbitration Act (X of 1940), S.34---Defence, striking off---Stay of proceedings under S.34, Arbitration Act, 1940---Where defendant had filed application under the Arbitration Act, 1940, for stay of proceedings, before first disposing of the application, neither the written statement could be called for nor any penalty be imposed---Defendant could not be penalized for not filing the written statement in circumstances.

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

----O. VIII, Rr. 1 & 9---Written statement---Types of---From combined reading of O.VIII, Rr. 1 & 9, C.P.C. that amongst others, three types of written statements can be filed by a defendant viz. as of right without any formal permission of the Court; when it is so required by the Court to file a written statement and when under some circumstances it is under leave of the Court.

Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 ref.

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

----O. VIII, R.10---Written statement called by the Court---Failure to file such statement---Provisions of O.VIII, R.10, C.P.C.---Applicability--­Provisions of O.VIII, R.10, C.P.C. are penal in nature and have to be strictly constituted and whenever a reasonable doubt arises regarding their interpretation/implementation the same have to be resolved in favour of the victim.

Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 ref.

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

----O. VIII, Rr. 9 & 10---Defence, striking off---Scope---Specific speaking order under O.VIII, R.9, C.P.C. has to be passed before-the defence of a defendant can be struck off.

The Secretary, Board of Revenue, Punjab, Lahore v. Khalid Ahmad Khan 1991 SCMR 2527 ref.

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

----O. VIII, Rr. 1 & 10---Written statement---Defence, striking off---Where written statement is to be filed under O.VIII, R.1, C.P.C. the provision of O.VIII, R.10, C.P.C. has no applicability.

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

----S. 104 & O.VIII, R.10---Specific Relief Act (I of 1877), S.12---Defence, striking off---Suit for specific performance of agreement to sell was decreed by the Trial Court on the ground that the defendant did not file written statement in time---Validity---Such suit could not be decided without recording any evidence---Even if the defence of the defendant was struck off, it behooved the Trial Court to ask the plaintiff to prove its case for recovery of damages and specific performance of contract by placing sufficient .material on the record in the form of evidence---Nothing had been done in that respect and Trial Court had acted in a mechanical manner without due application of law---Where neither the defendant was given sufficient opportunity for filing the written statement, nor he was required to file a written statement in terms of O.VIII, R.9, C.P.C.; the suit could not have been decreed without further proceedings---Even if the defence was struck off the suit could not be decreed on mere ipsi, dixit without any proof whatsoever---Judgment and decree of the Trial Court was set aside and the case, was remanded to the Trial Court for decision afresh.

Haji Muhammad Moosa and another v. Provincial Government of Balochistan 1986 CLC 2951; Project Director, Gadoon Amazai Area Development Project, Swabi, Martian v. Latif Gul 1992 MLD 2026 and Nisar Ahmad and another v. Habib Bank Ltd., Lahore'1980 CLC 981 ref.

Fakhar-ud-Din G. Ebrahim for Appellants. S.A. Manan and Rana Muhammad Sarwar for Respondent. Date of hearing: 12th October, 2000.

P L D 2001 Lahore 149

Before Ch. Ijaz Ahmad, J

MUNIR AHMAD and 7 others---Petitioners

versus

ADDITIONAL DISTRICT JUDGE, KASUR

and 14 others---Respondents

Writ Petition No.2442 of 1989, heard on 22nd November, 2000.

(a) Administration of justice--

---- Technicalities should not be hindrance in the way of justice.

Khuda Yar's case PLD 1975 SC 678 and Imtiaz Ahmad's case PLD 1963 SC 382 .ref.

(b) Constitution of Pakistan (1973)--

----Art. 2A---Administration of justice---After insertion of Art.2A in the Constitution, Supreme Court has insisted to avoid technicalities and desired that cases must be decided on merits.

Said Muhammad's case PLD 1989 SC 532 ref.

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

----O. VI, R.17---Amendment of pleadings---Amendment can be made at any stage of proceedings under the provisions of O. VI, R.17, C.P.C.

Kirmat Ali's case PLD 1963 SC 191 ref.

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

----O.VI, R.17---Amendment of pleadings--- of Court---Court under, the provisions of O.VI, R.17, C.P.C. has to keep in view the interest of justice and to allow case to run on correct lines for decisions of real controversy.

Ahmad and others v..Fazal Muhammad PLD 1978 Lah. 1394 ref.

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

------O. VI, R.17---Amendment of pleadings----Delayed application for amendment---Validity---Mere filing such application at belated stage is not a ground to reject the application.

Sardar Muhammad Anwar Khan's case 1988 CLC 402 and -Mst. Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345 ref.

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

----O. VI, R. 17---Amendment of pleadings---Prerequisite---Where application for amendment, under O.VI, R.17, C.P.C. is preferred at any stage of the proceedings the same should unless equities are otherwise or there is some good reason for summary rejection, be decided on merits--?Amendment of plaint is the right of a party when the same relates to the cause of action on which the suit is based---Once the Court decides that the amendment is necessary to, the purpose of determining the real question as envisaged under O. VI, R.17, C.P.C., the Court is required by law not only to allow the application but is also bound to direct the amendment for the said purpose---Amendment is subject to the condition that the cause of action does not change the main substance and nature of the suit.

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

----O. VI, R. 1.7 & S.115---Constitution of Pakistan (1973), Art. 199--?Constitutional petition---Constitutional jurisdiction, exercise of--?Amendment of pleadings---Delayed application for amendment---Trial Court dismissed the application but the same was allowed by the lower Appellate Court in exercise of revisional jurisdiction---Contention by the petitioner was that the application was filed at belated stage and could not be allowed--?Validity---In absence of a jurisdictional defect in the order, S.115, C.P.C. manifested a clear intention that the order passed in revision would be created as final---Constitutional remedy was both extraordinary and exceptional and ordinarily should not be invoked on a mere difference of opinion on a point of law or fact---Proposed amendment, neither changed the complexion of the suit, nor the cause of action displaced---Relief claimed in the suit retrained the same only an additional plea was sought to be added qua the possession--?Order passed by the Lower Appellate Court in revision could not be assailed in further revision to High Court as the same was prohibited under S.115(3), C.P.C.---Constitutional petition was not maintainable in circumstances.

PLD 1963 Lah. 566; AIR .1948 Nag. 119; AIR 1930 Nag. 295; Mst. Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345; Ghazi v. Manga AIR 1932 Lah. 322; Suimal Chandra Chatterji v. Radhanath Ray AIR 1934 Lah. 235; Shah Muhammad v. Hayat and others PLD 1960 L4h. 975; State Life Insurance v. Nasim 1984 CLC 159; Mando v. M. Umar 1982 CLC 284; Niyogi v. Biliram AIR 1930 Nag. 295; Chunnia Lal v. Deoram AIR 1948 Nag. 119; Manzoor Hussain v. Malbhan PLD 1998 Lah. 172; Amanullah v. Khurshid PLD 1963 Lah. 566; M. Akram v. M. Ashraf 1998 CLC 555; Anwar Hussain and 2 others v. Manzoor Ahmad and 2 others 1999 YLR 1511; Hurmat Khan v. Zahoor Khan 1999 YLR 10; Haji Hakim Gul and others v. Madad Khan arid others 1998 MLD 1260; Mir Mazhar's case PLD 1993 SC 332; Muhammad Sharif's case PLD 1981 SC 246 and Abdul Rehman Bajwa's case PLD 1981 SC 522 ref.

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

----O. III, R.2---Counsel and client---Litigation between private parties--?Counsel for one of the parties appointed as Assistant Advocate-General--?Constitutional petition was fixed for hearing before the High Court after the appointment of the counsel as .Assistant Advocate-General---Counsel so appointed was directed by the High Court to appear for the client and argue the case.

Shaukat Mahar for Appellants.

Zahid Farani, A. A.-G. for Respondents.

Date of hearing: 22nd November, 2000.

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P L D 2001 Lahore 181

Before Nasim Sikandar and Jawwad S. Khawaja, JJ

Messrs RAVIANS PAPER AND BOARD INDUSTRIES LTD. -

through Chief Executive---Appellant

versus

Messrs TAJ COMPANY LIMITED through Liquidators---Respondent

Intra-Court Appeals Nos. II and 13-L of 1998 in Civil Miscellaneous No.996/L of 1998 in C.O. No .45 of 1990, heard on 27th September, 2000.

Companies Ordinance (XLVII of 1984)---

----S. 290---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Purchase of assets of company---Failure to make payment obligations in time---Such failure resulted in loss- to the company ---Effect-­Purchasers were liable for the financial costs for delay in making payment; of the instalments of the purchase price.

M.R. Sheikh for Appellants.

Muhammad Naazer Khan for Respondents.

Dates of hearing: 26th and 27th September, 2000.

P L D 2001 Lahore 184

Before Malik Muhammad Qayyum and Raja Muhammad Sabir, JJ

THE STATE and 2 others---Appellants

versus

Ch. MAQSOOD ALAM---Respondent

Review Application No.38 of 1999 and Writ Petition No.6390 of 1998/BWP, decided on 11th January, 2001.

Agricultural Pesticides Ordinance (II of 1971)---

----S.21(2-A)---Law Reforms' Ordinance (XII of 1972), Item 11-A [as amended by Legal Reforms Act (XXIII of 1997)], S.3(4)---Offences and penalties---Forum for trial---Offence under S.21(2-A), Agricultural Pesticides Ordinance, 1971 being punishable with imprisonment for a term not exceeding three years with or without any other punishment, was triable by an Executive Magistrate.

Shahzad Shaukat and Muhammad Ashraf, A.A.-G. for Applicants.

Nemo for Respondent.

P L D 2001 Lahore 186

Before Naeem Ullah Khan Sherwani, J

MUNIR AHMAD---Petitioner

versus

SHOUKAT ALI and another---Respondents

Criminal Miscellaneous No.592/M of 2000, decided on 10th January, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 426, 497(5) & 561-A---Suspension of sentence, recalling of ---Non­ speaking order---Inherent jurisdiction of High Court---Sentence of the accused was suspended by the Lower Appellate Court one day after the accused was awarded sentence by the Trial Court---Specific role- of causing head injury to the injured prosecution witness was attributed to the accused and weapon of offence was also recovered from the accused---Lower Appellate Court without taking into consideration complete facts and circumst2nces of the case allowed application under S.426, Cr.P.C.--­ Validity---Order passed by the Lower Appellate Court was devoid of judicial reasons capable of articulate expressions, which could be designated as patent illegality---Where the order passed by the Lower Appellate Court appeared to be passed in great haste, without adverting to law and facts, such order was set aside---Bail of the accused was cancelled in circumstances.

Qazi Misbah ul Hassan for Petitioner, Ch. Muhammad Nasim Sabir, Addl. A.-G. with Rizwan Afzal.

Ghazanfer Ijaz for Respondents;

P L D 2001 Lahore 188

Before Muhammad Nawaz Abbasi, J

Syed ZIA UL HASSAN GILANI---Petitioner

versus

Mian KHADIM HUSSAIN and 7 others---Respondents

Writ Petition No. 10577 of 2000, decided on 19th October, 2000.

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

----S. 5---West Pakistan Family Courts Rules, 1965, R.5---Civil Procedure Codg (V of 1908), S.20---Family Court, territorial jurisdiction of---Filing of suit in wrong Court---Effect---Territorial jurisdiction of Family Court was governed by S.20, C.P.C.---Where the suit was filed in a wrong Court, under R. 5 of Family Court Rules, 1965, the plaint would be returned to the plaintiff.

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

----S. 5---Civil Procedure Code (V of 1908), S. 20---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Family Court, territorial jurisdiction of---Suit for maintenance allowance for minors---Two different places of dwelling---Plaintiff after divorce was permanently residing in house of her parents at place "I" and her daughters being in her custody were living temporarily at place "K" in connection with their education---Suit for maintenance was filed at place "I" and the same was decreed in favour of the plaintiff---Appeal filed against the decree before Lower Appellate Court was dismissed---Validity---Plaintiff could file suit, under the provisions of S.20, C.P.C. both at her permanent as well as temporary residence in respect of cause of action arising at her temporary residence---Temporary residence of the minors would be deemed to be the permanent residence of their mother--­Cause of action having arisen in favour of the plaintiff as guardian of minor at place "I" where she was residing permanently, the temporary residence of her daughters (minors) at place "K" would not affect the jurisdiction of Family Court at place "I" to entertain the suit of maintenance on their behalf---Plaintiff could invoke jurisdiction either at place "I" or at place "K" and both Courts having concurrent jurisdiction were competent to entertain the suit---Where the plaintiff after dissolution of marriage was residing at place "I" and the minors were in her custody, cause of action arose in their favour at place "I" and their ordinary place of residence under the law would be at place "I"---Suit filed at place "I" did not suffer from defect of territorial jurisdiction of Family Court---Defendant failed to point out any misreading or non-reading of evidence rendering the judgment and decree illegal or to be interfered with by High Court in its Constitutional jurisdiction.

(c) Islamic Law-

-'---Maintenance of minor children---Poverty and weak financial position of father of the minors---Father under such plea could not escape from his liability and would not be allowed to deprive the minors from their legitimate right of maintenance.

(d) Islamic Law-

---- Maintenance of minor children---Responsibility of parents---Extent---In case of male child on his attaining the age of majority, the father was not legally responsible for his maintenance but in case of a female, despite attaining the age of majority by the child, the parents were still responsible for her maintenance till she was not married---Young girl in Muslim society, even after attaining majority, could not be deprived of maintenance by her parents as she could not lead an independent life and was always in need of protection of her parents.

(e) Islamic Law--

----Marriage---Entering of young girl into marriage without intervention of her Wali (guardian)---Validity---Generally it is possible for a young Muslim girl to enter into marriage without intervention of Wali (guardian).

Sahibzada Anwar Hameed for Petitioner.

Abdul Rauf Farooqi for Respondents.

P L D 2001 Lahore 194

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

Ch. ABDUL MAJEED---Appellant

versus

Ch. INAYAT ALI and 4 others---Respondents

Regular First Appeal No. 62 of 1992, heard on 31st October, 2000.

(a) Punjab Pre-emption Act (IX of 1991)--

----S. 6(2)---Right of pre-emption ---Zaroorat or Zarar, requirements of---Suit was filed when the provisions of S.6(2) of Punjab Pre-emption Act, 1991, were a part of the statute---Plaintiff at all the relevant stages of the trial failed to lead any evidence on requirements of Zaroorat or avoidance of Zarar--­Effect---Where the pre-emptor failed to prove "Zaroorat" or avoidance of "Zarar" under the provisions of S.6(2) of Punjab -'re-emption Act, 1991, the suit could not be decreed even if the pre-emptor could have succeeded in. proving his right of pre-emption under S.6(1), Punjab Pre-emption Act,. 1991.

Sardar Khan and others v. Muhammad Siddique 2000 MLD 616; Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200; Muhammad Ali v. Muhammad Hussain 1995 MLD 5; Fazal Ellahi and 2 others v. District Judge, Attock and 3 others 1993 CLC 85 and Ghulam Hussain and others v. Mushtaq Ahmad and others PLD 1994 SC 870 ref.

(b) Pleadings---

----Controverted pleadings can never be equated with positive evidence.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 6(1)(2)---Right of pre-emption ---Zaroorat or Zarar, proof of---Cursory '.r mention of blockade of some road or obtaining of a stay order regarding 'Pulli---Sufficiency and effectiveness ---Pre-emptor mentioned such fact in his - statement made before the Trial Court to prove Zaroorat or avoidance of `' Zarar---Validity---Mere mention was not sufficient to prove the requisite Zaroorat or avoidance of Zarar for maintaining a suit for possession through pre-emption ---Where the incidents had taken place after the sale, the same could not, by themselves, positively reflect upon the pre-emptor's requisite Zaroorat or avoidance of Zarar---Suit for possession through pre-emption could not have been decreed in favour of pre-emptor even if he could succeed in establishing his right of pre-emption under S.6(1), in the absence of meeting requirements of S.6(2) of Punjab Pre-emption Act, 1991.

(d) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit ---Talb-i-Muwathibat---Failure to make such Talb in accordance with law---Effect---Where such Talb was not made according to the established requirements, then the same could also be fatal to pre­emptor's right of pre-emption.

Mst. Ulfat Buttiv: Muhammad Arif and others 2000 YLR 2753 ref.

(e) Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Right of pre-emption ---Failure to establish Talbs---Effect--­Right of pre-emption of a person was to stand extinguished unless making of the requisite Talbs under the provisions of S.13 of Punjab Pre-emption Act, 1991, was properly established before Trial Court.

(f) Punjab Pre-emption Act (IX of 1991)--

----S. 15---"Acquiescence"---Connotation---Waiver of right of pre-emption--­Scope---Word "acquiescence" has been introduced into the concept of waiver in matters of pre-emption for the first time through the Punjab Pre-emption Act, 1991, whereas no such word was used in the Punjab Pre-emption, Act, 1913---Deliberate inaction on the part of a prospective pre-emptor, stands incorporated in the concept of waiver.

Haji Sultan Ahmad through Legal Representatives v. Nasim Raza and 6 others PLJ 1996 SC 1651 ref.

(g) Words and phrases---

----"Acquiescence"---Meaning.

(h) Punjab Pre-emption Act (IX of 1991)---

----Ss. 6(1)(2), 13 & 15---Right of pre-emption ---Zaroorat and avoidance of Zarar---Failure to make Talbs in accordance with law---Principle of waiver--­Applicability---Suit was filed when the provisions of S.6(2) of Punjab Pre­emption Act, 1991, were very much a part of the statute---Plaintiff at all the relevant stages of the trial failed to lead any evidence on such requirements--­Pre-emptor made active participation in the transaction and had waived his right of pre-emption on account of his conduct---Trial Court dismissed the suit on the ground that pre-emptor neither could prove the requirement of Zaroorat and avoidance of Zarar, nor the Talbs were made in accordance with the law and the right of pre-emption was waived by the pre-emptor--­Validity---On account of waiver on the part of the pre-emptor any right of pre-emption possessed by him was lost---Where requisite mandatory Talbs were not made in accordance with law, the right had also been extinguished---Failure of pre-emptor to prove Zaroorat or avoidance of Zarar in terms of S.6(2) of Punjab Pre-emption Act, 1991; had rendered his asserted right of pre-emption to be incapable of .enforcement---Findings of the Trial Court were maintained by the High Court.

Muhammad Ismail Qureshi and others v. Government of Punjab and others PLD 1991 FSC 80; Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Sardar Khan and others v. Muhammad Siddique 2000 MLD 616; Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200; Muhammad Ali v. Muhammad Hussain 1995 MLD 5; Fazal Ellahi and 2 others v. District Judge, Attock and 3 others 1993 CLC 85; Ghulam Hussain and others v. Mushtaq Ahmad and others PLD 1994 SC 870; Muhammad Rafiq v. Muhammad Ashiq and 2 others 1996 SCMR 441; Mst. Ulfat Butt v. Muhammad Arif and others 2000 YLR 2753; Abaid-ur-Rehman and others v. Mahmand and others 1999 SCMR 201 and, Haji Sultan Ahmad through Leeal Representatives v. Nasim Raza and 6 others PLJ 1996 SC 1651 ref.

Ch. Khurshid Ahmad for Appellant.

Ch. Imdad Ali for Respondents.

Date of hearing: 31st October, 2000.

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P L D 2001 Lahore 212

Before Khalil-ur-Rehman Ramday

and Naeem Ullah Khan Sherwani, JJ

MUHAMMAD NAZIR alias JEERA---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos. 1292, 1295 of 1999 and Murder Reference No.53-T of 2000, decided on 21st November, 2000.

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

----S. 345(2)---Penal Code (XLV of 1860), S. 311---Compounding of offence---Grant of permission of Court---Intent and import---When a compromise has been reached between all the heirs of a deceased person and the offender, the Courts of law are not permitted to blindly act upon the said compromise and to acquit the culprit---Courts of law are expected to consider all the attending facts and circumstances of the case and then to decide whether, in the given situation, the Court should or should not grant permission for the compounding of the offence---Courts are also obliged to decide whether the case falls within the ambit of the provisions of S.311, P.P.C. and whether the offender, despite the compromise, deserved to be punished by way of "Tazir" under the said provisions of law.

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

----Ss. 302, 364 & 309---Criminal Procedure Code (V of 1898), S. 345(2)--­Compromise---Accused was an oldish person who was in the habit of abusing children by alluring them and then getting his body massaged from them and by also indulging in sexual affairs with them--Lust of the accused had resulted in the death of three minor children whose bodies had been recovered at his instance---Accused, thus, deserved no sympathy and did not qualify for the grant of any discretionary relief by way of compromise between the parties---Permission for compounding of the offence of Qatl-i­Amd was, therefore, refused by the High Court in terms of S.345(2), Cr.P.C.---Heirs of all the three deceased boys having granted pardon to the accused, punishment of Qisas had ceased to be applicable in view of the provisions of S.309, P.P:C.---Conviction and sentence of accused under S.302, P.P.C. were consequently set aside, but instead he was convicted under S.302(c), P.P.C. and sentenced to suffer twenty years' RJ, on each of the three counts---Offence 'under S.364, P.P.C. being not compoundable, conviction and sentence of accused thereunder were maintained as he deserved no mercy---Sentences of accused were, however, directed to run concurrently.

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

----Ss. 302(c) & 364---Criminal Procedure Code (V of 1898), Ss.345(2) & 439---Compromise---Revisional jurisdiction---Accused had been convicted by the Trial Court under S.302(c), P.P.C. being less than 18 years of age and had been sentenced to undergo 25 years R.I. each---Accused were small children themselves who were misused by the principal accused for alluring other children and they had also been granted pardon by the heirs of all the three deceased boys---Conviction of accused under S.302(c), P.P.C. was maintained, but in the said circumstances sentence of 25 years' R.I, awarded to them thereunder was reduced to six years R.I. on each of the three counts---Offence under S.364, P.P.C. being not compoundable, conviction of accused thereunder was upheld, but due to aforementioned circumstances their sentence of ten years R.I. was reduced to six years' R.I. each on each count with reduction in fine and direction for the sentences to run concurrently---Two accused had not filed any appeals against their convictions and sentences, but they also having been pardoned by the heirs of the deceased persons, their cases were not distinguishable from the case of the aforesaid accused and their sentences were also reduced accordingly by High Court in exercise of its powers under S.439, Cr.P.C.

Rana Ijaz Ahmad Khan for Appellant.

Ch. Nizam-ud-Din Arif for the State.

Muhammad Iqbal Khan Khichi for the Complainant.

Date of hearing: 21st November, 2000.

P L D 2001 Lahore 219

Before Riaz Kayani, J

MUHAMMAD FAYYAZ and others---Petitioners

versus

THE STATE---Respondent

Criminal Appeal No.699 of 1998, heard on 16th February, 2001.

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

----Ss. 97, 103 & 104---Right of private defence---Provisions of S.97, P.P.C. have given every person a right to defend movable or immovable property belonging to himself or to any other person against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass or attempt to commit such offences---Provisions of 9.103, P.P.C. have defined the right of private defence of property which extends to causing death, in certain cases whereas S.104, P.P.C. has limited the harm to be caused to the assailant in the exercise of right of self-defence of property to any injury or harm, but certainly not death, if the danger to the property was not the one as envisaged by S.103, P.P.C.

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

----Ss. 103, 104 & 302---Appreciation of evidence---Right of self-defence--­Death caused by tiring---Accused had claimed that tires were shot by them on the complainant party in exercise of their right of self-defence of their property as a Bund was being constructed by the complainant party to stop irrigation water flowing to their lands---Validity---Accused though hay, a right of self-defence when mischief was committed by complainant party by raising Bund preventing water to enter the fields of the accused, but case of the accused did not fall within the ambit of S.103, P.P.C. which would give them the right to defend, the property to the extent of causing death---Right of self-defence of the accused would fall within the four corners of S.104, P.P.C. which does not envisage right of self-defence to the extent of causing death, but restricts to causing of any harm other than death---Accused while wielding their weapons anti causing death of the deceased had exceeded their right of self-defence, and thus their conviction under S.302(b), P.P.C. was bad in law and was liable to be altered to S.302(c), P.P.C.---Sentence of life imprisonment awarded to the accused being harsh, same was reduced to the sentence of imprisonment to ten years R.I.

Syed Ehsan Qadir Shah for Appellant.

Imdad Hussain Hamdani Syed for the Complainant.

Bashir Ahmad Gill for the State.

Date of hearing: 16th February, 2001

P L D 2001 Lahore 224

Before Jawwad S. Khawaja, J

HABIB BANK LIMITED---Plaintiff

versus

KASHIF STEEL INDUSTRY and others---Defendants

C.O.S. No. 94 of 1999, heard on 1st February, 2001.

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

----S. 176---Pawnee's right ---Default made by pawnor---Effect---Pledgee has two courses of action available to him under the provisions of S.176 of Contract Act, 1872---Pawnee may either bring a suit against the pawnor and­ retain the pledged goods as collateral security or he may sell the pledged goods on giving the pawnor reasonable notice of the sale.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)----

----S. 9---Recovery of Bank loan---Leave to defend the suit---Loan was advanced to the defendant company and the same was rescheduled on the terms which were agreed by the defendants---No objection was ever raised to the demand finance facilities, availed by the defendant company---Directors had guaranteed the payment obligations of the defendant company ---Plaintiff ­Bank had placed on record guarantees admittedly signed by the Directors in respect of the facilities---Contention of the defendants was that demand finance agreements were not legally enforceable because the same were without consideration as no finance had been provided to or availed by the defendant company---Validity---Such objection raised for the first time by the defendant company to the demand finance facility was an afterthought and did not show bona tides---No serious or bona fide defence to the claim of the plaintiff-Bank had been raised---Application for leave to defend the suit was dismissed and the suit was decreed in circumstances.

Abdul Hameed Butt for Plaintiff.

Zahid Malik for Defendants Nos. l to 4.

A. Karim Malik for Defendant No.5.

Date of hearing: 1st February, 2001.

P L D 2001 Lahore 230

Before Muhammad Asif Jan, J

DEWAN SALMAN FIBRE LTD., ISLAMABAD--- Petitioner

versus

DHAN FIBRES LTD., RAWALPINDI ---Respondent

C.O. No.2 of 2000, heard on 27th October, 2000.

(a) Companies Ordinance (XLVII of 1984)----

----S. 284---Amalgamation/merger of companies---Withholding of sanction for amalgamation of companies---Jurisdiction of Court---Allegation that scheme of merger was unfair---Onus to prove---Scope---Where required majority of the members of both the companies had approved the resolution for merger of both the companies, sanction for merger could not be withheld unless it was shown that the same was unfair, unreasonable or against the national interest---Burden was upon the person who alleged the scheme to be unfair and against the national interest---Powers for allowing amalgamation under S.284 of Companies Ordinance, 1984, were broad and subject to restrictions under the law and Constitution---All such powers and constraints must be governed by the ground realities---Court would not act as a Court of appeal and would sit in judgment over the informed view of the concerned parties to a compromise because the same would be in realm of corporate and commercial wisdom of the concerned parties for which the Court would not have the necessary expertise, however, the Court would act as an umpire.

(b) Companies Ordinance (XLVII of 1984)----

----S. 284---Amalgamation/merger of companies---Absence of such power in Memorandum of Association---Effect---Company tray amalgamate with another, despite absence of any particular power in the objects clause of Memorandum of Association.

Associated Services Ltd.'s case PLD 1984 Kar. 225 and In re: EITA India Ltd. AIR 1997 Cal. 208 ref.

(c) Companies Ordinance (XLVII of 1984)----

----S. 284---Amalgamation/merger of companies---Fixation of share price--­Jurisdiction of Court---Scope---Shareholders were the best judges of their interests and were better informed with the market trends than the Court which was least equipped in valuation of such trends.

(d) Companies Ordinance (XLVII of 1984)----

----Ss. 284, 285, 286 & 287---Amalgamation/merger of companies--­Objection raised to the scheme of merger---Majority of the shareholders accepted the scheme only 0.12% of the shareholders raised the objection to the scheme---Joint petition was filed for amalgamation/merger of both the companies---Contention of the objector was that there was no such power in the objects clause of the Memorandum of Association of dissolving company---Validity---Not necessary that such a power must be available in the objects clause before a company could be allowed to merge with another company---Scheme of arrangement was approved and sanctioned by the Court---Petition for amalgamation/merger of companies was allowed in circumstances.

Brooke Bond (Pakistan) Limited and another v. Aslam Bin Ibrahim and another 1997 CLC 1873; Lipton Pakistan Limited and another's case 1989 CLC 818; Aslam Bin Ibrahim v. Monopoly Control Authority and 2 others PLD 1998 Kar. 295 and (1891) 1 Ch. 213 ref.

Sharif-ud-Din Pirzada, Muhammad Akram Sheikh, Tariq Kamal, Samee Zafar, Sharjeel Adrian and Syed Nasik Ijaz Gillani for Petitioners.

Syed Ali Hassan- Gilani with Syed Hamid Ali Shah for Syed Ijaz Hussain Rathore, the Objector.

Munawar Akhtar with Ejaz Ishaq Khan for the Nichimen Corporation.

Date of hearing: 27th October, 2000.

P L D 2001 Lahore 236

Before Asif Saeed Khan Khosa, J

MUHAMMAD SHARIF---Petitioner

versus

THE STATE 3 others---Respondents

Writ Petition No. 12138 of 2000, heard on 21st November, 2000.

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

----Ss. 63, 169 & 173---Penal Code (XLV of 1860), Ss.302/148/149--­Discharge of accused by Magistrate---Concept---Accused in a criminal case is discharged by a Magistrate only from his bond when his custody is no longer required for the purposes of investigation---Such order of discharge is only an administrative and executive act of a Magistrate at a stage when the matter is still under investigation and it has yet to reach the Trial Court---Any question as to which Court is to ultimately try the case is hardly relevant at such a stage---Discharge of accused does not amount to an acquittal or even smothering or termination of investigation of the case---Discharge order only means that physical custody of the accused is not required for the purposes of investigation at present and at any subsequent stage during such an investigation order of discharge can always be recalled by the Magistrate whenever it appears to his satisfaction that physical custody of the accused is subsequently requited for proper investigation of such case---Discharged accused even can subsequently be summoned by the Trial Court to face the trial.

Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lah; 680; Mst. Nusrat Bibi and others v. Senior Civil Judge/Magistrate Section 30, Layyah 2000 YLR 2857; Muhammad Nadir v. The Magistrate and others Criminal Miscellaneous No.35-Q of 1999 disagreed

Parul Bala Sen Gupta v. The State AIR 1957 Cal. 379 and Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others 1985 PCr.LJ 244 ref.

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

----Ss.302/148/149---Criminal Procedure Code (V of 1898), Ss.63, 169 & 173---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Discharge of accused by Magistrate---Validity---Accused persons had been introduced into the case at a late stage and no sufficient incriminating material was found against them by & police---Local police, therefore, had solicited discharge of accused from their bonds from the Magistrate---Report submitted by the police and the impugned order of discharge passed by, the Magistrate were based upon cogent reasons and warranted no interference by High Court in exercise of its Constitutional jurisdiction---Constitutional petition was dismissed in limine accordingly.

Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lah. 680; Mst. Nusrat Bibi and others v. Senior Civil Judge/Magistrate Section 30 Layyah 2000 YLR 2857; Muhammad Nadir v. The Magistrate and-others Criminal Miscellaneous No.35-Q of 1999 disagreed.

Parul Bala Sen Gupta v. The State AIR 1957 Cal. 379 and Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others 1985 PCr.LJ 244 ref.

Ch. Muhammad Sana-ul-Haq for Petitioner.

P L D 2001 Lahore 239

Before Malik Muhammad Qayyum, J

SHAN MUHAMMAD---Petitioner

versus

NAWAB and 3 others---Respondents

Writ Petition No.2330 of 1990, heard on 24th January, 2001.

(a) Arbitration Act (X of 1940)----

----S. 2(a)---Arbitration agreement---Meaning---Arbitration agreement is written agreement to submit present or future differences to arbitration whether an arbitrator is named therein or not ---Tehkeemnama is a arbitration. agreement within the meaning of the Arbitration Act, 1940 as the main ingredients in this behalf are that the agreement should be for this purpose of having present or future differences determined---Neither in the Arbitration Act, 1940 nor .in the Civil -Procedure Code, 1908 any format of the agreement for arbitration has been given---In order, to constitute an arbitration agreement, the same need not be formal in nature.

Karachi Cooperative Housing Societies Union Limited v. Safia Bai and others PLD 1970 Kar. 379 and Messrs Valika Textile Mills Limited v. Messrs Sh. Mian Mahomed Allah Bakhah PLD 1963 Kar. 813 ref.

(b) Arbitration Act (X of 1940)----

----S. 2(a)---Arbitration agreement---Correspondence between the parties--­Whether constitutes an agreement---Such correspondence between the parties can constitute an agreement to refer the dispute to arbitration.

(c) Arbitration Act (X of 1940)----

----S. 2(a) & (b)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Arbitration proceedings --- Award --- Connotation --- Scope --- Hukarn Sharai whether an award within the meaning of arbitration---Contention by the petitioner was that the decision of the Arbitrator was not an award as the same was Hukam Sharai---Validity---Award would mean any decision of the arbitrator in respect to the matter referred to arbitration---Where dispute was referred to a person and that person decided the dispute by holding an inquiry then whatever that person decided would constitute an award--­Hukam Sharai was an arbitration award and should have been dealt with as such.

Ch. Muhammad Saleem v. Muhammad Akram and others PLD 1971 SC 516 ref.

Bashir Ahmad Khan for Petitioner.

Muhammad Khalid Khatak for Respondents.

Date of hearing: 24th January, 2001.

P L D 2001 Lahore 242

Before Malik Muhammad Qayyum

and Muhammad Asif Jan, JJ

MUHAMMAD AMIN ---Appellant

versus

MUHAMMAD YASIN and another through

Legal Heirs---Respondents

Regular First Appeal No. 144 of 1986, heard on 22nd November; 2000.

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

----O.XX, R. 13---Administration suit---Allotment, whether basis of ownership---Record of Excise and Taxation---Value of---Defendant claimed to be the exclusive owner of the suit property on the basis of allotment in his favour--- Plaintiff relied on Permanent Transfer Deed in favour of predecessor of the parties---Trial Court was of the opinion that the defendant was the owner of the property and dismissed the suit---Validity---Allotment to defendant by itself did not confer any right or title in the property which was transferred to the predecessor of parties in whose favour Permanent Transfer (eider and Permanent Transfer Deed were issued---Record of Excise and Taxation was not sufficient in itself to rebut the Permanent Transfer Deed and the Provisional Transfer Order---Name of defendant was mentioned in the record as he was allottee of the property at one time and thus it was carried over in the subsequent assessment---Trial Court had acted illegally in holding that the suit property belonged to defendant and not to his father---Such finding of Trial Court was set aside.

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

----O.XX, R. 13---Administration suit---Determining the ownership of suit property---Court, in suit for administration, cannot go behind the document in order to find out as to who was the real and actual owner of the property---Where the property stood in the name of a particular person nobody could be permitted to say in an administration suit that the actual title vested in some body else---Separate suit for cancellation of the documents or for declaration had to be filed for challenging the title.

Syed Mohsin Raza Bukhari and 4 others v. Syed Azra Zenab Bukhari 1993 CLC 31; Zamani Begum v. Fazal-ur-Rehman AIR 1943 Lah. 241; Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi PLD 1962 SC 291 and Muhammad Younus Qureshi v. Feroz Qureshi 1982 CLC 976 ref.

Noor Muhammad Sheikh for Appellant.

Alif Amin for Respondent.

Date of hearing: 22nd November, 2000.

P L D 2001 Lahore 245

Before Amir Alam Khan, J

Mst. SOOBAN BIBI and 3 others---Petitioners

versus

Mst. KHATOON and 3 others---Respondents

Civil Revisions Nos.238 and 239 of 2000, decided on 10th January, 2001.

(a) Counsel and client--

----Duties and authority of counsel---Admission by counsel---Scope--­Effect---Lawyers engaged by parties are conferred two-fold authorities i.e. one in relation to the proceedings in Court and the other in relation to right of the parties in relation to the cause being prosecuted or defended---Such authority of the counsel flows from Wakalat Nama- (power of attorney)--­Where it is recorded in Wakalat Nama that the counsel can make any or every statement in relation to the subject-matter of the suit and the authority given to the counsel is manifest from the wording of Wakalat Nama, no escape eat be made there from--Authority of a lawyer flows and emanates froth Wakalat Nama which should normally be adhered to---Counsel has authority to make any and every statement in relation to the proceedings even if stone of the concerned party was in attendance on the particular date.

Muhammad Bakhsh and 3 others v. Umar and 3 others PLD 1952 Lah. 307 distinguished.

Noor Jahan v. Azmat Hussain Farooqi and another 1992 SCMR 876; Talha Safdar and another v. Bashir Ahmad and others 1997 CLC 601 and Muneer Akhtar v. Mst. Shahnaz Begum 2000 CLC 1743 ref.

(b) Counsel and client----

---- Question. of law---Statement of counsel---When not binding on the client---Admission on the question of law is not at all binding because if a counsel agrees to a proposition which is against the law, no estoppel i; created as there is no estoppel against the law---Where the question is mixed question of fact and law, the admission would not be binding" hip client.

(c) Estoppel

----No estoppel against the law.

(d) Punjab Pre-emption Act (IX of 1991)----

----S. 35---Pre-emption---Performance of Talbs---Suit tiled under classic Islamic Law provisions as to performance of Talbs is to be considered for the performance of deciding the controversy between the parties notwithstanding the provisions of S.35 of Punjab Pre-emption Act, 1991.

(e) Islamic Law ----

----Pre-emption---Talb-e-Ishhad---Procedure.

Talb-e-Ishhad in Islamic Law has been ordained to be made as follows:--

(i) Talb-e-Ishhad shall be made with the least possible delay.

(ii) In the presence of the witnesses called upon to bear witness to it.

(iii) On the premises of subject of pre-emption or in the presence of the vendor provided he is in possession of the property or before the vendee.

It is also necessary to refer to Talb-e-Muwathibat having been duly made, Talb-e-Ishhad may be made by duly appointed agent.

(f) Pre-emption----

---- Where the plaintiff himself had based the suit for pre-emption on the principles of Islamic Law, it could not be contended that the suit could be decided otherwise than on the said principles.

Malik Ghulam Nabi and others v. Member-III, Board of Revenue and 5 others PLD 1990 SC 1043 fol.

(g) Pre-emption---

----Islamic Law---Death of pre-emptor---Effect---Death of pre-emptor extinguishes his right and that right to pre-empt does not devolve upon his heirs.

Malik Ghulam Nabi and others v. Member-III, Board of Revenue and 5 others PLD 1990 SC 1043; The Hedaya by Charles Hamilton, Compilation of Fatawa-i-Alamgiri; Durul Mukhtar and Bahar-e-Shariat by Maulana Amjad Ali ref.

(h) Islamic Law---

---- Pre-emption ---Death of pre-emptor before the decree---Failure to perform Talbs---Courts below concurrently dismissed the suit and appeal respectively ---Validity---Pre-emptor had died before any decree could be passed in his favour, his right to pre-empt extinguished for it was not heritable under the Islamic Law, therefore, the total exercise of taking of the case twice to High Court was absolutely futile---Where the suit was prosecuted by the heirs of the deceased pre-emptor right from the stage prior to the decree, such was an exercise in futility which should have clinched the controversy on the death of pre-emptor.

Messrs Riazur Rahman and Co. v. Province of Punjab and another PLD 1984 Lah. 551; Messrs Eastern Steels v. National Shipping Corporation 1984 CLC 2778; Seith Shivrattan G. Mohatta and another v. Mohammad Steampship Co. Limited PLD 1965 SC 669; Rafiq and another v. Munshilal and another 1982 PSC 886; Samar Gul v. Central Government and others PLD 1986 SC 1; Laloo and another v. Ghulaman 2000 SCMR 1055; Fazal Muhammad Bhatti and another v. Mst. Saceda Akhtar and 2 others 1993 SCMR 2018; Kaura and others v. Allah Ditta and others 2000 CLC 1018; Malik Ghulam Nabi and others v. Member-III, Board of Revenue and 5 others PLD 1990 SC 1043; The Hedaya by Charles Hamilton Compiled by Fatawa-i-Alamgiri; Durul Mukhtar and Bahar-e-Shariat by Maulana Amjad Ali ref.

(i) Islamic Law---

----Faith---Every Muslim is presumed to be Hanafi unless proved otherwise.

Messrs Syed Ahmad Saeed Kirmani and Ch. Mehmood Hanif Zahid, for Petitioners.

Rao Munawar Khan for Respondents.

Date of hearing: 8th December, 2000.

P L D 2001 Lahore 256

Before Syed Jamshed Ali, J

IFTIKHAR HUSSAIN ---Petitioner

versus

PAKISTAN TELEVISION CORPORATION through General Manager and 5

others---Respondents

Writ Petition No. 16682 of 1998, heard on 25th January, 2001.

Television Receiving Apparatus (Possession and Licensing) Rules, 1970---

----R. 3(3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Levy of fee for T.V. licence and introduction of a pay card system---Contention was that charging of T.V. Licence fee was illegal and unjustified because a T.V. set was also used as a monitor for a computer and only those persons who wanted to use T.V. for viewing programmes were liable to pay said fee---Contention was repelled because law would not compel a person to possess a T. V. and if it was intended to be used as computer monitor, then one could conveniently go for monitor instead of a T.V.---Such fee was livable on possession simpliciter even if a T.V. was not in actual use---Contention that a pay card system should be directed to be introduced, was also repelled because no direction- could be issued to the Television Corporation for installing a particular system as it was a matter of policy beyond the reach of High Court---Contention that contract to collect fees for T.V. awarded to the respondent was for inadequate consideration and was not given in a transparent manner was also repelled as resolution of such question involved a detailed inquiry which was beyond the scope of Constitutional jurisdiction of High Court.

Muhammad Aslam Saleemi, Advocate v. The Pakistan Television Corporation and another PLD 1977 Lah. 852 ref.

Muhammad Javed -Iqbal Jafree for Petitioner.

M. R. Sheikh for Respondents Nos. 1 and 2

Respondents Nos.3 to 6: Ex parte.

Dates of hearing: 23rd and 25th January, 2001

P L D 2001 Lahore 260

Before Asif Saeed Khan Khosa, J

KAMRAN ASGHAR---Petitioner

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, D.G. KHAN

and others---Respondents

Writ Petition No.2078 of 1992, decided on 14th May, 1999.

(a) Educational institution-

---- Admission to Medical College---Misrepresentation made by candidate--­Cancellation of result of Intermediate Examination by Board---Non-issuance of show-cause notice---Validity---Where no useful purpose was likely to be served by insisting on issuance of show-cause notice, legal plea like one regarding non-issuance of show-cause notice could not be accepted in vacuum and the same could seldom be made a basis for setting aside an order/action.

(b) Constitution of Pakistan (1973)----

----Art. 199---Constitutional petition---Educational institution---Admission to Medical College---Cancellation of result of examinee ---Plea of innocence by examinee ---Candidate passed his Intermediate Examination by playing deception and misrepresentation with the Secondary Board---Candidate was admitted to Medical College and at the time of scrutiny, it transpired that he had suppressed the material fact of appearing earlier in the examination from another Board---Show-cause notice was issued to the candidate by the Board but despite all opportunities given to him, he did not appear before the Board consequently his result was cancelled by the Board---Plea raised by the candidate was that he was innocent and misrepresentation was not willful--­ Validity---Candidate consciously chose the path of deception for the purposes of improving his marks in the examination hoping that he would get away with the same---Where the candidate had been caught and his culpability had been brought home, he could not be allowed to take refuge behind artificial veil of innocence---Candidate had resorted to falsehood, misrepresentation and deception and trampled the law for his personal ambitions and gains--­Candidate achieved improvement of his marks by lowering of his ethical standards which he did for getting into the medical profession and to him the end justified the means---Illegal and unethical means adopted by the candidate for getting into the noble profession of medicine by themselves inherently disqualified such candidate from entry to such ethical profession---High Court refused to interfere with the order of the Secondary Board.

Irfan Jamil Khan v. University of Engineering and Technology, Lahore and others 1998 SCMR 2502; Muhammad Ashraf Qadri v. Principal, King Edward Medical College and others PLD 1982 SC 131; Principal, King Edward Medical. College, Lahore v. Ghulam Mustafa and others 1983 SCMR 196 and Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore and another PLD 1971 SC 838 fol.

(c) Constitution of Pakistan (1973)----

----Art. 199---Constitutional jurisdiction---Scope---Jurisdiction, of High Court under Art. 199 is discretionary in nature and the same comes into play only when on the merits of a given case, a case is made out for issuance of writ by High Court---High Court, in the exercise of its discretion, in such a case, may refuse to interfere in the matter on consideration of the larger questions of justice, equity and good conscience---Where otherwise a case is not made out on the basis of jurisdictional or legal infirmity in the order/action, such discretion is not available to declare the same to be without lawful authority and of no legal effect---High Court, in the exercise of its Constitutional jurisdiction under Art.199 of the Constitution, has a discretion to issue or not to issue a writ where a case is otherwise made out for issuance of writ on the merits of the case but High Court has no jurisdiction to issue a writ in its discretion where otherwise no case is made out on merits for issuance of writ.

(d) Administration of justice----

---- If mere sympathy for a litigant's cause is allowed to confer jurisdiction on a Court, then the same would be a sure recipe for judicial anarchy which Court resolutely loathes promoting.

(e) Constitution of Pakistan (1973)----

----Art. 199---Constitutional petition---Unclean hands of petitioner--­Effect---Discretion of High Court under the provisions of Art.199 of the Constitution is not exercised where it perpetuates an illegality or sustains retention of ill-gotten gains or in favour of a person coming to the. Court with unclean hands.

Muhammad Ashraf Qadri v. Principal, King Edward Medical College and others PLD. 1982 SC 131; Principal, King Edward Medical College, Lahore v. Ghulam Mustafa and another 1983 SCMR 196 ref.

Muhammad Khalid Alvi for Petitioner.

Allah Bakhsh Khan Kulachi, Legal Advisor to D.G. Khan Board with Iftikhar-ur-Rashid, A.A.-G. for Respondents.

Date of hearing: 11th May, 1999.

P L D 2001 Lahore 271

Before Asif Saeed Khan Khosa, J

ASHIQ HUSSAIN ---Petitioner

versus

SESSIONS JUDGE, LODHRAN and 3 others---Respondents

Criminal Miscellaneous No.25-Q of 2001, decided on 10th April, 2001.

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

----Ss. 63 & 173---Discharge of accused by the Magistrate---Meaning and scope---Understanding, notion and impression that discharge of an accused person in a criminal case meant that further investigation qua him or his prosecution for the reported crime had come to an end, he had finally been absolved of the allegations with his discharge virtually having the effect of an acquittal and because of such a consequence of an order of discharge, such a discharge could be ordered only by the Court competent to try the offence in question and not by a Magistrate if he otherwise lacked jurisdiction to try the relevant offence, were misplaced and misconceived.

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

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979), S.12---Anti-Terrorism Act (XXVII of 1997), Ss. 12 & 17---Criminal Procedure Code (V of 1898), Ss. 63, 167 & 344---Remand or discharge of the accused---Jurisdiction---Offence under S.12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was admittedly not included in the Schedule appended with the Anti-Terrorism Act, 1997 whereas an offence under S.377, P.P.C. was a scheduled offence only "if the victim was below the age of twelve years and committed after the commencement of Anti-Terrorism Act, 1997"---Occurrence though had allegedly taken place after the commencement of the Anti-Terrorism Act, 1997 yet the age of the victim in the case being below twelve years at the relevant time was an asserted fact which was far from being established so far---Effect---Held, in the absence of any conclusive proof to the effect that the victim was definitely "below the age of twelve years" at the time of the alleged occurrence the Magistrate was not expected to readily abdicate his normal jurisdiction under the Criminal Procedure Code, 1898 regarding remand or discharge and to advise the parties to approach in that respect a Special Court the jurisdiction of which vis-a-vis the present case was still dependant upon a fact which was far from being admitted or established---As long as jurisdictional facts, prima facie, ousting the jurisdiction of Magistrate in respect of remand or discharge of an accused person were not established on the record, Magistrate was quite competent and justified in not abdicating his normal and general jurisdiction in that regard under Cr.P.C. in favour of a Special Court constituted under a special statute---Subsequent availability of some proof having a bearing on the matter could not be utilised for holding that the Magistrate had assumed the jurisdiction incorrectly at that stage---Principles.

According to the provisions of section 12 of the Anti-Terrorism Act, 1997 a Special Court constituted under the said Act could try only a scheduled offence and by virtue of the provisions of section 17 of the said Act when trying a scheduled offence a Special Court may also try any offence other than a scheduled offence with which an accused person may under the P.P.C. be charged at the same trial. Admittedly an offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not included in the Schedule appended with the Anti-Terrorism Act, 1997 whereas an offence under section 377, P.P.C. was a scheduled offence only "if the victim is below the age of twelve years and committed after the commencement of this Act". Although no doubt the occurrence in the present case had allegedly taken place after commencement of the Anti-Terrorism Act, 1997 yet the age of the victim in this case being below twelve years at the relevant time was an asserted fact which is far from being established so far.

Thus, in the absence of any conclusive, proof to the effect that the victim was definitely "below the age of twelve years" at the time of the alleged occurrence the Magistrate was 'not expected to readily abdicate his normal jurisdiction under the Code of Criminal. Procedure regarding remand or discharge and to advise the parties to approach in that respect a Special Court the jurisdiction of which vis-a-vis the present case was still dependent upon a fact which was far from being admitted or established. Therefore, as long as jurisdictional facts, prima facie, ousting the jurisdiction of a Magistrate in respect of remand or discharge of an accused person were not established on the record a Magistrate was quite competent and justified in not abdicating his normal and general jurisdiction in that regard under the Code of Criminal Procedure in favour of a Special Court constituted under a special statute.

The correctness of the order of the Magistrate was; therefore, to be adjudged on the basis of the facts available by that time and subsequent availability of some proof having a bearing on the matter could not be utilised for holding that the Magistrate had decided the matter incorrectly at that stage. Such subsequent proof, if prima facie reliable, could steer the matter on correct lines prospectively but the same could not be used retrospectively for undoing things already done and for retracing steps already taken in the past correctly according to the facts available by that time.

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

----S. 63---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Penal Code (XLV of 1860), S.377--Discharge of accused by the Magistrate---Validity---Accused, who was discharged, was not the principal accused in the case and the only allegation levelled against him in the F.I.R. was that of abetment of his co-accused---Complainant had remained unable to condradict the fact recorded in the order by the Magistrate that no material or evidence at all was available on the Police File qua abetment allegedly provided by the accused to his co-accused--­Magistrate had also noticed some manifest irregularities committed by the investigating officer which had apparently rendered the implication and involvement of the accused in the case to be quite suspicious ---Effect--­Discharge of accused by the Magistrate at such a stage was quite justifiably called for and the said order of Magistrate was not open to any legitimate exception on the merits of the matter.

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

----S. 4(l)---Investigation--Scope---Investigation is the other name of collection of evidence in respect of the crime in question---Police may or may not arrest an accused person during such an investigation as it may suit proper investigation.

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

----S. 63---Discharge of accused by the Magistrate ---Concept---Concept of discharge of an arrested person was restricted only to the question of his release from custody and nothing more.

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

----S. 169---Release of accused when evidence was deficient---Interpretation and scope of S.169, Cr.P.C.

Provision of section 169, Cr.P.C. not only confirms the fact that the bond got executed from an accused person by such a police officer is relevant only to his custody and release for the time being but at the same time it also visualises a possibility that even an accused person released on the basis of such a bond and against whom there is no sufficient evidence available with the investigating officer for the time being, may still be tried by a Court if a subsequent report by the police before the Magistrate recommends so on the basis of subsequently gathered evidence and such a recommendation is favourably treated by the Magistrate.

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

---S. 170(1)---Discharge of accused by the Magistrate---Taking of security from the accused person and his release is possible even in a case where there is sufficient evidence available against him on the basis of investigation--­Release of an accused person during the investigation on the basis of a bond or a security is only confined to the matter of his custody during such investigation and the same has no bearing on the question whether he would or would not be ultimately tried for the offence involved.

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

----Ss. 173(3) & 63---Discharge of accused by the Magistrate---Interpretation and scope of S.173, Cr.P.C.

The provisions of the proviso to clause (b) of subsection (1) of section 173 of the ,Cr.P.C. clearly envisage holding of a trial by a Magistrate or by a Court of competent jurisdiction to which he sends the case for trial on the basis of the police report submitted by the officer-in-charge of the police station and for the purpose of holding a trial no, distinction has been contemplated between an accused person who is in custody and an accused person who has been released on bond or security. . Subsection (3) of section 173 of the Code also leaves no room for ambiguity that the matter of discharge or otherwise of such a bond vis-a-vis an accused person only relates to his custody and the same has nothing to do with his trial. The question whether such a discharged accused person or even an accused person in custody is to face a trial or not depends upon satisfaction of the trial Court regarding sufficiency or otherwise of the material available against him on the record and the same is in no way conditional upon his custody or otherwise or even upon his having been discharged of his bond or not.

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

----Ss. 63, 173, 170 & 169---Discharge of accused by the Magistrate---Scope of Ss.63, 173, 170 & 169, Cr.P.C.

The word 'discharge' appearing in section 63 and subsection (3) of section 173 of the Cr.P.C. has been used in the context of releasing an accused person from custody. Under section 63, Cr.P.C. an arrested accused person can be discharged by a police officer upon execution of a personal bon4 by such an accused person or he can be discharged on bail, or under the special order of a Magistrate if such an accused person undertakes to appear before the said police officer, a Magistrate or a trial Court if and when required to do so. Under subsection (3) of section 173 a Magistrate seized of a police report under clause (a) of subsection (1) of section 173 may discharge an accused person of his bond when he has already been released on the basis of executing a bond. Thus, an accused person who has not so far been released on the basis of a bond cannot be discharged by a Magistrate of his bond under subsection (3) of section 173 of the Code. The power to discharge an accused person on the basis of a bond during an investigation rests with the police officer, the Court granting bail or the Magistrate under section 63; an accused person may also be released on the basis of a bond by the officer-in-charge of the police station or the investigating officer under section 169 or upon taking of security in a case of a bailable offence by the officer-in-charge of the police station under subsection (1) of section 170; the power to discharge him of such bond rests only with the Magistrate seized of a police report under section 173; and the said powers of the police officer and the Magistrate have absolutely nothing to do with the question as to which Court would ultimately have the jurisdiction to try the offence in question.

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

----S. 63---Discharge of accused by the Magistrate---Discharge order passed by Magistrate under S.63, Cr.P.C. cannot in any way be interpreted to be cancellation of a case or stopping the investigation---Proceedings before the police fall in its exclusive domain and the Magistrate has no power to interfere with the same.

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

----Ss.63 & 173(3)---Discharge of accused under S.63 & S.173(3), Cr.P.C.-­Distinction.

There is a difference between discharge of an accused person by an investigating officer on a bond or on bail or under the special order of a Magistrate under section 63 of the Code and discharge of an accused person of his bond by a Magistrate under subsection (3) of section 173 of the Code. In the former case the accused person is released on the condition of executing a bond whereas in the latter case he is released of his bond making his release unconditional and unfettered for the time being.

Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lah. 336 ref.

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

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate---Despite an order of discharge of an accused person further investigation can be held by the police regarding the offence in question without obtaining any permission from the Magistrate in that regard---Discharged accused person can always be associated by the police with the investigation of the given criminal case at any subsequent stage during the investigation without seeking any permission from the Magistrate discharging the 'said accused person of his bond as long as that accused person is not to be taken into custody during such subsequent investigation ---[Mst. Iqbal Begum v. The State 1991 PCr.LJ 1755; Jameel Ahmad and 3 others v. The Superintendent, Range Crime Branch, Rawalpindi Division, Rawalpindi 1999 PCr.LJ 310 and Mir Dad Khan and Zahir Shah and 3 others 2000 PCr.LJ 580 dissented from].

Muhammad Akram v. The State and another 1986 MLD 2439; Rehmat Ali Shad v. Fiaz Lodhi, S.P. and 3 others 1994 PCr.LJ 2206; Saee Muhammad and 7 others v. Superintendent of Police, Mandi Bahauddin and 3 others 1995 PCr.LJ 1666; Mulazim Hussain v. S.H.O., Police Station, Shorkot, District Jhang and 2 others 1995 PCr.LJ 440; Muhammad Tufail v. Assistant Commissioner, 'Wazirabad, District Gujranwala and 12 others 1995 MLD 1744; Habib-ur-Rehman and others v. The State 1999 MLD 860; Muhammad Rarnzan v. The State and 3 others 1999 MLD 1268; Naseer Khan v. The State 1985 PCr.LJ 2530 ref.

Abdul Waheed v. The State PLD 1986 Lah. 81 mentioned:

Asghar Ali v. The State 1983 PCr.LJ 2187 clarified.

Muhammad Din v. S.H.O. and others 1987 MLD 2657 distinguished.

Mst. Iqbal Begum v. The State 1991 PCr.LJ 1755; Jameel Ahmad and 3 others v. The Superintendent Range Crime Branch, Rawalpindi Division, Rawalpindi 1999 PCr.LJ 310 and Mir Dad Khan and Zahir Shah and 3 others 2000 PCr. LJ 580 dissented from.

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

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate---Cancellation of case against accused---Distinction---Cancellation of a case is surely a species different from discharge of an accused person---Cancellation terminates further investigation by the police whereas the discharge does not.

Abdul Waheed v. The State PLD 1986 Lah. 81 and Asghar Ali v. The State 1983 PCr. LJ 2187 analysed.

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

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate---If after the accused having been discharged by a Magistrate the Police needs to arrest an accused person during any subsequent stage of the investigation then a formal permission from the Magistrate is necessary for the purpose.

Muhammad Ali v. Station House Officer and 6 others 1994 PCr.LJ 1806; Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others 1985 PCr.LJ 224 and Mazhar Iqbal v. The State 1989 PCr.LJ 2241 ref.

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

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate, be it of any kind, cannot be equated with acquittal of the accused person so discharged as there is a world of difference between a discharge and an acquittal and there is no question of mixing one with the other under any circumstance--­Similarly complainant cannot be proceeded against for malicious prosecution simply because the accused person complained against had been discharged on the basis of investigation for the reason of a marked difference between acquittal and discharge.

Sardara arid others v. Muhammad Niwaz and another PLD 1949 Lah. 537; The State v. Karam Ali 1968 PCr.LJ 1707; Taj Din and 3 others v. The State and another 1977 PCr.LJ 933; The State v. Sheikh Manzar Masud PLD 1984 SC (AJ&K) 127; State through Advocate-General, N.-W.F.P., Peshawar v. Aqil Khan and others 1989 PCrLJ 1655 and Sub. (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700 ref.

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

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate ---Effect--­Discharge of accused person does not amount to smothering of the investigation, cancellation of the case, termination of prosecution or acquittal---Investigation, if in progress, can continue unaffected by order of discharge.

Parul Bala Sen Gupta v. The State AIR 1937 Cal. 379; Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others 1985 PCr.LJ 224; Mazhar Iqbal v. The State 1989 PCr.LJ 2241; Rehmat Ali Shad v. Fiaz Lodhi, S.P. and 3 others 1994 PCr.LJ 2206; Muhammad Tufail v. Assistant Commissioner, Wazirabad, District Gujranwala and 12 others 1995 MLD 1744; Mulazim Hussain v. S.H.O., Police Station Shorkot, District Jhang and 2 others 1995 PCr.LJ 440; Saeed Muhammad and 7 others v. Superintendent of Police, Mandi Bahauddin and 3 others 1995 PCr.LJ 1666; Talib Hussain and another v: Muhammad Aslam and another 1997 PCr.LJ 56; Jameel Ahmad and 3 others v The Superintendent, Ranee Crime Branch, Rawalpindi Division, Rawalpindi 1999 PCr.LJ 310; Habib ur Rehman and others v. The State 1999 MLD 860; Abdul Ghaffar and 3 others v Additional Sessions Judge, Gujranwala and another 1999 MLD 1822 and Din Muhammad Shakir alias D.M. Shakir v. D.S.P., Ichhra, Lahore PLD 1977 Lah. 180 ref.

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

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate ---Effect--­Discharge of accused does not amount to termination of investigation –­F.I.R. of the case remains intact and re-investigation of it or further investigation may very much be conducive to the detection of crime even though an accused under S.173, Cr.P.C. is not proceeded against or discharged for want of material evidence against him.

Muhammad Ashfaq and another v. Jameel Akhtar Shehzad, Civil Judge/Magistrate Section 30, Dunya Pur, District Lodhran and others 2000 MLD 1122 ref.

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

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate ---Effect--­Whether an accused person had been discharged or released or not and whether the police had opined about his guilt or not in its report under S.173, Cr.P.C. were factors which were irrelevant to the issue whether cognizance of the offence was to be taken or not or whether such an accused was to face a trial or not---Such decisions were to be made by the Magistrate taking cognizance of the offence and the Trial Court on the basis of the material collected during the investigation and the attending circumstances of the case and not on the basis of any order of discharge or on the basis of any opinion formed by the police---Once the Magistrate has taken cognizance of the offence exclusively triable by the Court of Session, he has to send the case to that Court and it is not open for him to send the case only qua those of the accused who are placed in column No.3 of the Challan.

Haji Abdul Rehman v. Sultan and another 1971 PCr.LJ 1164; Muhammad Ibrahim and others v. Qudrat Ullah Ruddy and others PLD 1986 Lah. 256; Hafeez Ahmad v. Malik M. Anwar and others-1987 PCr.LJ 450; Raja Khushbukhtur Rehman and another v. The State 1985 SCMR 1314; Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lah. 336; Waqarul Haq alias Nithoo and another v. The State 1988 SCMR 1428; Syed Waqar Hussain Shah v. The State PLD 1988 Lah. 666; Ijaz Javed and 4 others v. The State 2000 PCr.LJ 595; Federation of Pakistan through Secretary Finance, Islamabad and another v. Malik Mumtaz Hussain and 4 others 1997 SCMR 299; Falak Sher v. The State PLD 196,' SC 425; Sardar Ali and others v. The State PSLA No.6b of 1966; Allah Ditta v. The State and another 1991 PCr.LJ 663; Riasat Ali v. The State and another PLD 1993 Lah. 105, Waqar Ilias and another v. The State through the Federal Investigating Agency, Commercial Banking Cell, Quetta PLD 1993 Quetta 49; Mahmood Ali, v. The State 1994 PCr.LJ 842; Khadim Hussain and another v. The State and others 1996 MLD 903; Talib Hussain and another v. Muhammad Aslam and another 1997 PCr.LJ 56; Hameed Ullah Khan v. The State and another 1997 MLD 1745; Muhammad Ishaque and others v. The State 1999 MLD 1039; Nasrullali v. The State 1998 PCr.LJ 2086; Muhammad Yaqub v. The State PLD 1998 Lah. 523; Mastan Shah v. Additional Sessions Judge/Special Judge, Bannu and two others 1999 PCr.LJ 469 and Abdul Ghaffar and 3 others v. Additional Sessions Judge, Gujranwala and another 1999 MLD 1822 ref.

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

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate---Effect---Trial Court, before summoning a discharged accused person, or even an accused person whose name had been placed in column No.2 of the challan, to face a trial, need not record some evidence if the material already becoming available during the investigation was found by the Trial Court to be sufficient to warrant such summoning.

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

----Ss. 63, 173(3) & 439---Discharge of accused by the Magistrate---Nature of the order---Revision---Competence---Order regarding discharge of accused person by the Magistrate was essentially an administrative and not a judicial order---Such order was not amenable to revisional jurisdiction.

Khan Sahib Khan Muhammad Saadat Ali Khan v. The Administrator Corporation of City of Lahore PLD 1949 Lah. 451; Haji Abdul Rehman v. Sultan and another 1971 PCr.LJ 1164; Altaf Hussain v. Muhammad Fazil and another 1979 PCr.LJ Note 66 at p.44; Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others 1985 PCr.LJ 224; Bahadur and another v. The State and another PLD 1985 SC 62; Muhammad Ashraf and 8 others v. The State and another 1997 SCMR 304; Muhammad Akram v. The State and another 1986 MLD 2439; Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lah: 336, Mazhar Iqbal v. The State 1989 PCr.LJ 2241, Muhammad Shamim v. Ali Gohar and 3 others 1990 PCr.LJ 1932, Khadim Hussain and another v. The State and others 1996 MLD 903, Muhammad Aslam and 6 others v. The State 1996 PCr.LJ 827; Talib Hussain and another v. Muhammad Aslam and another 1997 PCr.LJ 56; Ch. Waheed uz Zaman v. Jamil and 8 others 1997 PCr.LJ 1167; Ijaz Javed and 4 others v. The State 2000 PCr. LJ 595 and Muhammad Ashfaq and another v. Jameel Akhtar Shehzad, Civil Judge/Magistrate Section 30, Dunyapur, District Lodhran and others 2000 MLD 1122 ref.

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

----Ss.63, 173(3), 439 & 561-A---Constitution of Pakistan (1973), Art. 199---Discharge of accused by the Magistrate---Order of discharge of accused by the Magistrate was essentially a discretionary order---Interference by higher forum in such discretionary order of the Magistrate---Scope and principles--­Insistence by complainant while seeking setting aside of an order of discharge stems from a misconception that due to the order of discharge the accused person in question stands absolved of the allegations against him or the investigation or prosecution qua him have been smothered or terminated---Such notions are based upon misunderstanding of the correct legal position regarding discharge which ought to stand dispelled---High Court observed that it was expected that henceforth propensity of complainants to rush to a higher forum with challenges against the order of discharge would dissipate---Recognized grounds for interference in the order of discharge by the Magistrate and legal remedies for complainant mentioned.

An order of a Magistrate regarding discharge of an accused person in a criminal case is essentially a discretionary order which may not ordinarily be interfered with by a higher forum as a matter of course unless strong and compelling reasons exist for such interference.

In view of such a legal, status of an order of discharge, extraordinary reasons have to be available for a higher forum to interfere with such an exercise of jurisdiction and discretion by a Magistrate and for insistence upon taking an accused person into custody where the police or the Magistrate do not deem such custody to be necessary or warranted for the time being in the circumstances of a given case. Generally such an insistence by a complainant while seeking setting aside of an order of discharge stems from a misconception that due to the order of discharge the accused person in question stands absolved of the allegations against him or the investigation or prosecution qua him have been smothered or terminated. Such notions are based upon misunderstanding of the correct legal position regarding discharge. Such misconceptions now ought to stand dispelled and it is, therefore, expected that henceforth propensity of complainants to rush to a higher forum with challenges against the orders of discharge would dissipate. In order to complete the picture it may be mentioned here that, as already noticed above, a revision, petition is not competent against an order of discharge and such an order may be challenged before a High Court through a petition under Article 199 of the Constitution praying for issuance of a writ of certiorari. In an appropriate and unusual case even a petition under section 561-A of the Cr.P.C. may be maintainable before a High Court against an order of discharge. Some of the recognised grounds for interference with an order of discharge are passage of such an order by a Magistrate mechanically without application of his own independent mind to the facts of the case, blindfolded acceptance of a recommendation of the police in that regard, perversity of reasoning and adoption of a procedure which offends against the letter or spirit of the law relating to discharge.

Where the Magistrate had recorded sound reasons for passing the impugned order of discharge and he had also not violated any procedure in that regard no justifiable reason existed for interference by High Court with his exercise of jurisdiction and discretion in the matter.

Bahadur and another v. The State and another PLD 1985 SC 62; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 and Hussain Ahmad v. Mst. Irshad Bibi and others 1997 SCMR 1503 ref.

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

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate---When not possible---Discharge of an accused person by a Magistrate is not legally possible after taking of cognizance of the case by a Trial Court---Principles.

Discharge of an accused person by a Magistrate is not- legally possible after taking of the case by a trial Court.

After taking of cognizance by the trial Court only three results are possible in a criminal case: firstly, conviction of the accused person either upon admission of guilt by him or on the basis of the evidence led by the prosecution; secondly, acquittal of the accused person either under sections 249-A/265-K of the Code or on the basis of failure of the prosecution to prove its case on merits beyond reasonable doubt; and thirdly, withdrawal from prosecution by a Public Prosecutor under section 494 of the Code. In this view of the legal position any attempt by the police or the prosecution to get an accused person discharged or to get an F.I.R. cancelled from a Magistrate at that stage may not only be illegal but the same may also be perceived as an attempt to subvert the normal legal process for motives which may be otherwise than bona fide.

Muhammad Aiam and another v. Additional Secretary to Government of N.-W.F.P., Home and Tribal Affairs, Development and 4 others PLD 1987 SC 103; Nasira Surriya v. Muhammad Aslam and 7 others 1990 SCMR 12; Haji Muhammad Javed v. The State and 2 others 1991 PCr.LJ 62; Abid Shah v. The State PLD.1992 Lah. 412; Ajmal Ali Shah v. The State 1992 PCr.LJ 708; Murid Hussain v. The State 1993 MLD 2402; Ansar Hussain v. Allah Ditta and 2 others 1993 PCr.LJ 1593 and Mst. Kausar Bibi v. The Deputy Inspector-General of Police, Crimes Branch, Punjab, Lahore and 2 others 1996 PCr.LJ 124 ref.

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

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate---Order regarding discharge or otherwise of an accused person under S.63 or 173(3), Cr.P.C. was -within the competence of a Magistrate competent to take cognizance of the offence in question and it had no relevance to the question as to which Court was to ultimately try the said offence unless, of course, a special statute had provided otherwise specifically.

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

----Ss. 173(3) & 190---Discharge of accused by the Magistrate---Magistrate's power to discharge an accused person of his bond under 'S.173(3), Cr.P.C. even in cases triable exclusively by a Court of Session remained unaffected by the amendments introduced by the Law Reforms Ordinance, 1972--­Power to discharge the accused in cases triable by Special Court or Sessions Court exclusively remained vested with the Magistrate and not with the Trial Court; i.e. the Court of Session or Special Court ---[Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lah. 680 and Muhammad Dildar Hussain and another v. The Civil Judge, Judicial Magistrate, Shujabad and 3 others 2000 PCr.LJ 43 dissented from].

The Magistrate's power to discharge an accused person of his bond under subsection (3) of section 173 of the Code even in cases triable exclusively by a Court of Session remains unaffected by the amendments introduced by the Law Reforms Ordinance, 1972 and also that in such cases the power of discharge remains vested with the Magistrate and not with the trial Court, i.e. the Court of Session.

The power of a Magistrate to order discharge of an accused person in cases triable exclusively by a Special Court was recognized.

A bare reading of the provisions of sections 190 and 173 of the Code demonstrates that even in cases triable by a Court of Session a report under section 173 of the Code is to be submitted by the police before q Magistrate, the cognizance of the offence is taken by the Magistrate and after taking of cognizance of the offence the case is then sent by the Magistrate to the Court of Session for trial. Taking of cognizance of an offence is, thus, different from holding of a trial and in a given case these two functions may be performed by two different foca. The power of discharge is conferred upon the Magistrate competent to take cognizance of the offence and it has no relevance to the fact as to which Court is to ultimately try the offence in question.

Bashir Ahmad v. Allaqa Magistrate, Jaranwala and 4 others PLD 1980 Lah. 28; Mehar Khan v. Yaqub Khan and another 1981 SCMR 267; Habib v. The State 1983 SCMR 370; Mehdi Hussain Shah v. Malik Khizar Hayat Khan and another 1983 PCr.LJ 1601; Bashir Ahmad v. Allaqa Magistrate, Jaranwala and 4 others PLD 1980 Lah. 28; Syed Hamid Muqeem Bokhary v. The State PLD 1985 Lah. 71; Mahfooz Ahmad v. Additional Sessions Judge and another PLD 2000 Lah. 136; Hafeezur Rehman v. The State PLD 1993 Pesh. 252 and Mastan Shah v. Additional Sessions Judge/Special Judge, Bannu and 2 others 1999 PCr.LJ 469; Awal Khan v. The Superintendent of Police, Attock and 13 others .1989 PCr.LJ 909 and Mushtaq Rai v. Magistrate 1st Class and others 1994 PCr.LJ 497 and Habib v. The State 1983 SCMR 370 ref.

Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996 Lah. 680 and Muhammad Dildar Hussain and another v. The Civil Judge, Judicial Magistrate, Shujabad and 3 others 2000 PCr.LJ 43 dissented from.

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

----Ss. 63 & 103---Discahrge of accused by the Magistrate ---Competence--­Executive Magistrate, having no jurisdiction to take cognizance of a particular offence, was not competent to discharge an accused person involved in such an offence likewise a Judicial Magistrate having no jurisdiction to take cognizance of a particular offence was not empowered to discharge an accused person involved in such an offence---Order of discharge by an incompetent Magistrate was therefore, an order passed without lawful authority and the same was of no legal effect.

Under the present dispensation under the Cr.P.C. there are two kinds of Magistrates, i.e. Judicial Magistrates and Executive Magistrates and both have their respective jurisdictions vis-a-vis competence to take cognizance of specified offences. The power of a Magistrate to discharge an accused person under the Code is relatable to his competence to take cognizance of an offence. Thus, an Executive Magistrate having no jurisdiction to take cognizance of a particular offence is not competent to discharge an accused person involved in such an offence and, likewise, a Judicial Magistrate having not been conferred jurisdiction to take cognizance of a particular offence is not empowered to discharge an accused person involved in such an offence. An order of discharge passed by an incompetent Magistrate is, therefore, an order passed without lawful authority and the same is of no legal effect.

Sufi Abdul Qadir v. The State and others 2000 PCr.LJ 520 and Ghalam Shabbir v. State 2000 PCr.LJ 1411 ref.

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

----Ss. 63 & 173(3)---Discharge of accused by the Magistrate under Ss.63 & 173(3), Cr.P.C.---Comprehensive survey and analysis of the law on the subject vis-a-vis the true legal effect and scope of "discharge" of an accused person in a criminal case undertaken---High Court directed the Registrar of the Court to send copies of the judgment to all the Sessions Judges in the Province of Punjab who shall ensure that Presiding Officers of all the Criminal Courts within their respective jurisdictions receive a copy of the judgment for information and guidance--Inspector-General of Police of the Province was also directed accordingly with further direction to report compliance to the Registrar of the Court.

Following is the survey and analysis of the law on the subject vis-a­vis the true legal effect and scope of discharge of an accused person in a criminal case:--

(i) The concept of discharge is relatable only to custody of an accused person in a criminal case and it has no relevance to anything else during an investigation or a trial.

(ii) The Investigating Officer of a criminal, case may discharge an accused person under section 63 of the Code of Criminal Procedure and release him from custody during the investigation on executing a personal bond regarding his appearance before the Investigating Officer or a Magistrate whenever required to do so during the investigation. Likewise under the same provision of law an accused person may be discharged from custody during the investigation either on bail or under the special order of a Magistrate.

(iii) Upon receipt of the police report under subsection (3) of section 173 of the Code of Criminal Procedure a Magistrate may discharge an accused person of his bond if such an accused person has already been released upon executing a bond.

(iv) There is a difference between discharge of an accused person by an Investigating Officer on a bond or on bail or under the special order of a Magistrate under section 63 of the Code of Criminal Procedure and discharge of such an accused person of his bond by a Magistrate under subsection (3) of section 173 of the Code of Criminal Procedure as in the former case the accused person is released on the condition of executing a bond whereas in the latter case he is released of his bond making his release unconditional and unfettered for the time being.

(v) Discharge of an accused person does not amount to smothering of the investigation qua him, cancellation of the case against him, termination of his prosecution or his acquittal.

(vi) A discharged accused person can always be associated by the police with the investigation of the given criminal case at any subsequent stage during the investigation without obtaining any permission from the Magistrate discharging the said accused person as long as that accused person is not to be taken into custody during such subsequent investigation.

(vii) If after his having been discharged by a Magistrate the police needs to arrest an accused person during any subsequent stage of the investigation then a formal permission from the Magistrate is necessary for the purpose.

(viii) Discharge of an accused person has nothing to do with the prospects of such an accused person ultimately facing a trial or not as his discharge is not from the case but only on or of his bond.

(ix) Whether an accused person had been discharged or not and whether the police had opined about his guilt or not in its report under section 173 of the Code of Criminal Procedure are factors which are irrelevant to the issues whether cognizance of the offence is to be taken or not and whether such an accused person is to be summoned or not to face a trial because such decisions are to be made by the Magistrate taking cognizance of the offence and the trial Court on the basis of the material collected during the investigation and the attending circumstances of the case and not on the basis of any opinion formed by the police on the basis of such material.

(x) Discharge of an accused person by a Magistrate is not possible after taking of cognizance of the case by the trial Court.

(xi) An order regarding discharge or otherwise of an accused person lies within the competence of a Magistrate having jurisdiction to take cognizance of the offence and it has no relevance to the question as to which Court is to ultimately try the offence in question unless a special statute provides otherwise specifically.

(xii) An order regarding discharge of an accused person is an administrative and not a judicial order.

(xiii) An order regarding discharge is essentially a discretionary order which may not ordinarily be interfered with by a higher forum unless strong and compelling reasons exist for such interference.

Because of the importance of the legal issues involved in the case and in order to remove some confusion prevailing among the subordinate judiciary and the police regarding such issues High Court found it desirable that this judgment should be circulated, among all the relevant quarters. The Additional Registrar of the High Court was, therefore, directed to send copies of the judgment to all the Sessions Judges in the Province of the Punjab who shall then ensure that the Presiding Officers of all the Criminal Courts within their respective jurisdictions receive a copy of this judgment for their information and guidance. The Additional Registrar was also directed to send a copy of the judgment to the Inspector-General of Police, Punjab who shall then cause copies of this judgment to be sent to all the Deputy Inspector-Generals of Police, the Senior Superintendents of Police and the Superintendents of Police who shall ensure that every Station House Officer of every Police Station in the Province of the Punjab receives a copy of the judgment for his instruction and compliance. The Inspector-General of Police, Punjab shall submit a report before the Additional Registrar of High Court regarding compliance of this direction.

Ch. Faqir Muhammad for Petitioner.

Muhammad Qasim Khan, Asstt. A.-G. for Respondents Nos. 1, 2 and 4.

Sardar Muhammad Sarfaraz Dogar for Respondent No.3.

Muhammad Riaz Aura for the State.

Date of hearing: 10th April, 2001.

P L D 2001 Lahore 313

Before Malik Muhammad Qayyum, J

EFU GENERAL INSURANCE LTD. Through Executive

Vice-President---Petitioner

versus

CHAIRMAN, BANKING TRIBUNAL NO. 1, LAHORE and 3

others---Respondents

Writ Petition No.7192 of 1996, heard on 20th February, 2001.

Banking Tribunals Ordinance (LXIII of 1984)---

----S. 2(c)---Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), S.8---Constitution of Pakistan (1973), Art.199---Constitutional petition---"Customer"---Definition---Indemnifer---Concept---Respondents, a Banking Company filed a suit for recovery of certain amount---Other respondents applied for impleading of the Insurance Company (petitioner) as a party which was allowed---Insurance Company (petitioner) raised a number of objections against the order but the Court, instead of deciding same, decreed the suit again;: , Insurance Company (petitioner) and other respondents-- Validity---Insurance Company having only insured the goods of customer against theft and robbery and having nothing to do with the transaction, between the Bank and its customer, could not be said to be an indemnifier against non-payment of the suit amount---Liability of the Insurance Company could only be created if the goods of customer had been lost on account of theft or robbery.

Messrs United Bare Limited v. Messrs Adamjee Insurance Company Ltd. 1988 CLC 1660 ref.

Saeed Akhtar for Petitioner.

Nemo for Respondents.

Date of hearing: 20th February, 2001.

P L D 2001 Lahore 315

Before Zafar Pasha Chaudhary, J

AMJAD HUSSAIN and 2 others---Appellants

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1191/M of 2000 in Criminal Appeal No.680 and Criminal Revision No.484 of 1999, decided on 24th January, 2001.

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

----Ss. 336/324---Appreciation of evidence---Accused alongwith his unknown absconding co-accused had caused successive injuries with a repeater gun on the left leg to the victim which had to be amputated up to the knee ---Eye­witnesses had made consistent statements supporting each other on all material points---Ocular testimony was supported by medical evidence as well as by the evidence of motive---Incident having taken place in broad day, question of mistaken identity or substitution of accused could not arise--­Conviction of accused was consequently maintained---Amputation of the leg of the victim; however, had not been caused by the accused and the same had to be carried out in order to save the life of the victim because according to medical opinion treatment of the injury was not possible---Accused was not the only person who had fired a, shot at the leg of the victim, but a similar injury was also attributed to his unknown co-accused and it was not possible to determine that the injuries caused by which of the two accused persons had necessitated the amputation of the leg of the victim---Amputation of the leg of the accused as ordered by Trial Court was, therefore, not just and proper---Even otherwise, it was not possible or executable that a fire should be shot from a repeater gun by the victim at the leg of the accused with the same force and intensity to cause precisely a similar injury of the same magnitude---Execution of Qasas was not possible in circumstances and the same was set aside and instead the accused was sentenced to undergo seven years' R.I. as Tazir---Accused was also directed to pair Arsh which was half of the Diyat amounting to Rs.1,06,332, failing which he was to remain in jail till such payment---Appeal of accused was consequently dismissed with modification in his sentence.

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

----S. 334---Punishment for Itlaf-i-Udw--- Accused having ' caused "Itlaf-i-­Udw" of the victim has to be punished with Qisas under S.334, P.P.C., of course in consultation with the authorised Medical Officer, but the Qisas has to be ordered only by keeping in view the principles of equality in accordance with the Injunctions of Islam---Qisas according to the Injunctions of Islam, has to be in equal terms and it can neither be more nor less--­Accused has to be meted out with the same treatment as has been done to the victim.

Syed Afzal Haider assisted by Rai Zameer-ul-Hassan for Appellants.

Bashir Ahmad Gill for the State.

Date of hearing: 22nd May, 2000.

P L D 2001 Lahore 324

Before Malik Muhammad Qayyum, J

SULEMAN SPINNING MILLS LTD. ---Petitioner

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Islamabad

and 2 others---Respondents

Writ Petition No.285 of 1998, heard on 29th January, 2001.

Pay-As-You-Earn Scheme Act (XXXI of 1973)---

----S. 4---Pay-As-You-Earn Scheme, 1973, R.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Provision of R. 4, Pay-As-You ­Earn Scheme; 1973 was ultra vires of the Pay-As-You-Earn Scheme Act, 1973---Reasons.

From a reading of section 4(2)(b) of the Pay-As-You-Earn Scheme Act, 1973 two things which significantly emerge are that in the event of default the State Bank of Pakistan shall levy a penalty not exceeding 27 percent. per annum and the other is that the words used in section 4(2)(b) are "shall be liable to pay" and not shall pay. The use of words "shall be liable to pay" calls for a determination by the. State Bank of Pakistan that the establishment has committed some violation of the Act for reasons in its control and then proceed to decide whether or not any penalty is liable to be paid, if so, at what rate.

Rule 4 of the Pay-As-You-Earn Scheme, 1973 was ultra vires of the main Act and had, therefore, no legal effect. The amount imposed was ordered to be refunded to the establishment.

Shamroz Khan and others v. Muhammad Amin and another PLD 1978 SC 89 ref.

Imtiaz Rashid Siddiqui for Petitioner.

Nemo for Respondents.

Date of hearing: 29th January, 2001.

P L D 2001 Lahore 326

Before Jawwad S. Khawaja, J

Messrs PUNJAB BEVERAGE COMPANY (PVT.) LTD. ---Petitioner

versus

CENTRAL BOARD OF REVENUE, C.B.R. HOUSE and 4 others---Respondents

Writ Petition No. 18757 of 2000, heard on 30th January, 2001.

(a) Central Excises Act (I of 1944)---

----S.14---Fresh inquiry---Scope---New information always justifies fresh inquiry even where earlier inquiries have been conducted with due diligence.

(b) Central Excises Act (I of 1944)---

----S.14---Sales Tax Act (VII of 1990), S.37---Inquiry---Summoning of witness---Powers of the Authorities---Scope---Authorities, under the provisions of S.14 of Central Excises Act, 1944 and S.37 of Sales Tax Act, 1990, have ample powers to summon witnesses for production of documentary evidence and also to testify in any proceedings before authorized Officer of the department.

(c) Central Excises Act (I of 1944)--

----S.14---Sales Tax Act (VII of 1990), S.37-Inquiry --- Anonymous complaint---Validity---Inquiry can be conducted on such complaint and the same cannot be dropped just for the. reason that the contents of the anonymous complaint cannot be verified as the complainant is unavailable and has not furnished any documents in support of the facts alleged in the complaint.

(d) Central Excises Act (I of 1944)---

----S.14---Sales Tax Act (VII of 1990), S.37---Constitution of, Pakistan (1973), Art. 199---Constitutional petition---Fresh inquiry---Discovery of new material---Issuance of show-cause notice---Earlier eight inquiries were conducted and the Authorities initiated another inquiry for the ninth time ignoring the results of earlier inquiries---Validity---Where the earlier inquiries were not termed as proper, diligent or complete inquiries, fresh inquiry could be initiated.

Edu1ji Dinshaw Limited v. Income Tax Officer PLD 1990 SC 399; Messrs Julian Hoshang Dinshaw Trust and others v. Income Tax Officer, Circle XVIII, South Zone, Karachi and others 1992 SCMR 250; Attock Cement Pakistan Ltd. v. Collector of Customs, Collectorate of Customs and Central Excise, Quetta and 4 others 1999 PTD 1892; Al Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1992 PTD 1761 and Messrs Central Insurance Co. and others v. The Central Board of Revenue, Islamabad and others 1993 SCMR 1232 ref.

(e) Central Excises Act (I of 1944)---

----S.14---Penal Code (XLV of 1860), Ss. 193 & 228---Inquiry---Nature of proceedings---Inquiry undertaken by an authorized Central Excise Officer, under the provisions of S.14 of Central Excises Act, 1944, is a judicial proceeding within the meaning of Ss. 193 & 228, P.P.C.

Messrs Lever Brothers Pakistan Limited through Company Secretary v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 3 others 1999 MLD 1925 and Muhammad Irfan Khan v. The Superintendent, Central Excise, Moradabad and another AIR 1960 All. 402 ref.

(f) Res judicata-

----Principles of--Proceedings before Administrative Authorities---Principle of res judicata--Applicability---Principle of res judicata cannot be applied to the proceedings before the Authorities with the same strictness which it is applicable before Courts or Judicial Tribunals---Where formal decision has been reached by any administrative forum, such decision does not constitute bar to reopening and reconsideration of the same matter where the earlier decision is clearly open to some objection or the same is not reached after proper inquiry or fresh evidence having a material bearing on \the point decided in the previous decision, becomes available.

Commissioner of income-tax v. Wahiduzzaman PLD 1965 SC 171; Commissioner of Income-tax v. Pakistan Industrial Engineering Agencies Ltd. PLD 1992 SC 562 and Messrs Farrukh Chemical Industries Ltd. v. The Commissioner of Income-tax, South Zone, Karachi PLD 1983 Kar. 269 ref.

(g) Central Excises Act (I of 1944)---

----S.14--Sales Tax Act (VII of 1990), S.37---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Issuance of show-cause notice---Where the Authorities had jurisdiction to issue the show­ cause notice and no mala fides had been alleged against the Authorities, the petitioner was not allowed to circumvent the statutory process.

Al Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1992 PTD 1761 ref.

(h) Central Excises Act (I of 1944)--

----S.14---Sales Tax Act (VII of 1990), S.37---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Show-cause notice, issuance of---Efficacious remedy available---Effect---Where efficacious remedy under the relevant statute is available, Constitutional jurisdiction of High Court cannot be exercised against mere issuance of notice by the Authority--Constitutional jurisdiction of High Court can be invoked where the notice is issued by Authority lacking jurisdiction or where the appellate or revisional authority under such statute has already expressed its view on the controversy which is subject-matter of the notice.

Adamjee Insurance Co. Ltd., Karachi v. The Central Board of Revenue, Islamabad and 3 others 1989 PTD 1090 ref.

Ch. Aitzaz Ahsan assisted by Uzair Karamat Bhandari for Petitioner.

A. Karim for Respondents.

Dates of hearing: 22nd, 23rd, 24th, 25th; 26th and 30th January, 2001.

P L D 2001 Lahore 347

Before Zafar Pasha Chaudhary, J

Mst. SHAZIA SHARIF --- Petitioner

versus

ZEESHAN AHMED DODHY and 2 others---Respondents

Criminal Miscellaneous No. 246-H of 2001, decided on 28th February, 2001.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Custody of minor---Parties had separated on 1-9-1999 after the petitioner (wife) was divorced by the respondent (husband) and thereafter, even according to the petitioner, due to some mutual agreement or arrangement between them the minor had been handed over to the respondent---Evidence in circumstances was necessary to determine the welfare of the minor which could better be recorded by the Guardian Court---Section 491, Cr.P.C. was not meant to pre-empt the jurisdiction of Guardian Court if, however, the child had been forcibly taken away or retained by the father or any one else which could be hazardous to the minor then the custody would be handed over to the mother who had the first right to custody---Child was with the father since 1-9-1999 and the case being not of emergency a was not appropriate to invoke the jurisdiction under 5.491, Cr.P.C.---Petition was dismissed accordingly

Mehdi Khan Chohan for Petitioner.

Muhammad Zaheer for Respondents.

P L D 2001 Lahore 348

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD MANSHA---Petitioner

versus

THE STATE- -Respondent

Criminal Miscellaneous Application No. 1 in Criminal Appeal No.260 of 2000, decided on 31st January, 2001.

(a) Precedent----

-----Varying precedent---Manner of choice for application---Principle----When---two varying precedents are available on a particular point, the one most relevant and applicable to the facts and circumstances of the case and delivered by a Larger Bench to be followed.

(b) Constitution of Pakistan (1973)---

----Art. 189---Decisions of Supreme Court binding on other Courts--­Subordinate judiciary should always give its utmost respect, regard and consideration to the judgments, decrees, orders and direction of the Supreme Court, because it is necessary, apart from the binding nature of the same, for maintaining discipline in all ranks of the Judiciary.

Syed Sajjad Hussain v. Secretary, Establishment Division, Cabinet Secretary, Islamabad and 2 others 1996 SCMR 284; Ataur Rehman v: The State PLD 1967 SC 23; Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879; Sakhi Muhammad and another v. Capital Development Authority, Islamabad PLD 1991 Sikandar A. Karim v. The State 1995 SCMR 387 ref.

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

----S. 426---Suspension of sentence---lines---Discretion under S.426, Cr.P.C. has to be exercised judiciously by considering the relevant facts without commenting on the merits of the case---Appellate Court would refrain from entertaining the contentions which require consideration on merits or re-appraisal of evidence, which should be considered at the time of hearing of the appeal- --Where, however, the Court on perusal of the facts and the impugned judgment concludes that the judgment suffers from any legal error, it would be justified to suspend the sentence and grant bail giving due consideration and weight to the reasonable and legal views expressed by the Trial Court, but every effort should be made to ensure that neither the evidence is reappraised nor the merits of the case are discussed.

Maqsood v. Ali Muhammad and others 1971 SCMR 657; Abdul Ghaffoor v. Anwarul Hassan and another 1978 SCMR 149; Muhammad Nawaz v. Muhammad Nawaz alias Najt and 4 others 1997 SCMR 1521; Abdullah Khan v. Karamdad 1968 SCMR 1064; Faqir Muhammad v. Akbar 1979 SCMR 276; Haji Mir Aftab. v. The State 1979 SCMR 320- Muhammad Ashraf v. The State 1971 SCMR 183; Noor Abdullah and another v. The State 1981 SCMR 859 and Jamshed Azam v. The State 1990 SCMR 1393 ref.

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

----S. 426---Penal Code (XLV of 1860), Ss.302/307/34---Suspension of sentence---Contentions raised on behalf of accused for suspension of his sentence during pendency of his appeal required consideration of merits and reappraisal of the evidence and the same as such, were not entertainable-­Petition for suspension of sentence of accused was dismissed accordingly.

Maqsood v. Ali Muhammad and another 1971 SCMR 657; Abdul Ghaffoor v. Anwarul Hassan and others 1978 SCMR 149; Mosam Khan and 4 others v. Mir Alam Khan PLD 1992 SC 47; Muhammad Afzal and another v. The State 1994 SCMR 453; Rafaqat Ahmad v. The State 1994 SCMR 1206; Khalil-ur-Rehman v. Muhammad Afzal and another 1998 SCMR 523; Muhammad Nawaz v. Muhammad Nawaz alias Naji and 4 others 1997 SCMR 1521; Farhat Azeem v. Waheed Rasul and others PLD 2000 SC 18; Syed Sajjad Hussain v. Secretary, Establishment Division, Cabinet Secretary, Islamabad and 2 others 1996 SCMR 284; Ataur Rehman v. The State PLD 1967 SC 23; Punjab through Secretary, Health Department v. Dr. S.Muhammad Zafar Bukhari PLD 1997 SC 351; Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879; Sakhi Muhammad and another v. Capital Development Authority, Islamabad PLD 1991 SC 777; Sikandar A. Karim v. The State 1995 SCMR 387; Bahar Khan v. The State 1969 SCMR 81; Abdullah Khan v. Karamdad 1968 SCMR 1064; Faqir Muhammad v. Akbar 1979 SCMR 276; Haji Mir Aftab v. The State 1979 SCMR 320; Muhammad Ashraf v. The State 1971 SCMR 183; Noor Abdullah and another v. The State 1981 SCMR 859 and Jamshed Azam v. The State 1990 SCMR 1393 ref.

Sahibzada Farooq Ali for Petitioner.

Hashim Sabir Raja for the Complainant.

Raja Sultan Khurram for the State.

P L D 2001 Lahore 357

Before Raja Muhammad Sabir, and Zafar Pasha Chaudhary, JJ

ABDUL AZIZ through Legal Heirs and another---Appellants

versus

THE LAND ACQUISITION COLLECTOR, RAWALPINDI ---Respondent

Regular, First Appeals Nos. 19 to 26 of 1987, decided on 20th December, 2000.

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

----Ss. 4 & 23---Acquisition of land---Compensation---Determination of--­Year in which sales took place would be relevant year and the average was to be determined while taking the same into consideration.

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

----Ss. 4 & 23---Acquisition of land---Market value---Determination of--­Land acquired for residential purpose, was situated near a metalled road and very important buildings like Barani College were constructed just in front of the land---Surroundings of land contained a number of houses and the area had acquired residential status---Potential value of land and not the actual value thereof had to be considered while determining its market value---Average determined by the Revenue Authorities was not indicative of market value.

PLD 1970 Lah. 463; PLD 1986 Kar. 164; AIR 1939 PC 98; PLD 1988 SC 32; 1992 SCMR 1245; 1980 SCMR 795; PLD 1968 Lah. 360; PLD 1996 Pesh. 22; PLD 1991 Lah. 76; PLD 1997 Pesh. 19; 1978 SCMR 5 and PLD 1951 Pesh. 14 ref.

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

----Ss. 4, 18 & 23---Acquisition of land---Market value---Compensation--Determination of---If a small piece of land located by the side of a metalled road was sold for the purpose of construction of a house, same would fetch much more price, but same price could not be made basis to assess the value of the remaining land which was not located by the aide of the road---Usual mode of determining the price while passing the award was average of yearly price of similar land sold in the locality---Referee Court while adjudicating upon the reference had rightly took into consideration the situation in which land was -located and had correctly observed that the area had attained the position of a predominantly residential area and that the average market value, should have been made basis of the compensation.

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

----Ss. 4, 18 & 23---Acquisition of land---Market value---Determination of--­Compensation of acquired land had to be awarded by keeping in view the value of the land which could, on account of certain circumstances, be different from the average price of the land---Average price of the land as determined through award could be right, but in order to compensate the owners of the acquired land, the value of the land had to be kept in mind and that should be made basis---Market value as assessed by Referee Court, after applying judicial mind to the prevailing relevant factors, should be accepted.

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

----Ss. 4 & 23---Acquisition of land---Market value---Determination of--­Where "Lapara" "Maira" and "Banjar Qadeem" land was assessed, average of such kinds of land was relevant for agricultural purposes, but if the price of land was being assessed on the ground that the same had become attractive and. its potential for residential purposes stood admitted, then to raise construction of houses or any other premises the distinction of the land as before, Maira or Banjar Qadeem would become meaningless.

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

----Ss. 4 & 23---Acquisition of land---"Ghair Mumkin" land, nature and determination of its market value---"Ghair Mumkin" land was the one which was not tit for cultivation---Price of such land as compared to the cultivable land was always far less---Said categories of land, had further large number of sub-categories i.e. it could be Ghair Mumkin being, Ghair Mumkin Chapper, Ghair Mumkin Kowas, Ghair Mumkin Bhatta etc.---If land was Ghair Mumkin and its reason for being the same was also recorded then it could be easily determined whether same was suitable for raising construction or not---If the land was "Ghair Mumkin Abadi" or "Ghair Mumkin Haveli" then in that event it was not available for cultivation, but for grant of compensation of land in the light of said criterion, Ghair Mumkin land could not in any manner be treated or evaluated as inferior to other categories of land.

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

----Ss. 4 & 23---Acquisition of land---Compensation---Determination' of--­Guidelines enumerated.

Following are the guidelines for determination of compensation of land:

(a) If it is Ghair Mumkin of the type which is suitable to raise construction then the Authority will provide compensation equivalent to the price fixed as compensation with regard to the three categories of land, viz. Ghair Mumkin Chappar; Ghair Mumkin Kowan and Ghair Mumkin Bhatta;

(b) if the land is Ghair Mumkin whereon no construction can be raised or unsuitable for building a house or any similar structure then of course the amount of compensation already prescribed i.e. Rs.4,438.40 per Kanal will be given to the concerned claimants; and

(c) if the Ghair Mumkin land is of a type which is neither suitable for construction nor for agricultural purposes nor can be put to any other use then the price already fixed by the Land Acquisition Collector would be just and proper compensation.

Bashir Ahmad Ansari and Qamar Afzal for Petitioners.

Raja Saeed Akram and Syed Sajjad Hussain, Addl. A.-G. for Respondent.

Date of hearing: 22nd November, 2000.

P L D 2001 Lahore 365

Before Karamat Nazir Bhandari, J

Chaudhry RIYASAT ALI ---Petitioner

versus

RETURNING OFFICER/ADVOCATE-GENERAL, PUNJAB and 2

others---Respondents

Writ Petition No. 25101 of 2000, decided on 28th February, 2001.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Alternate remedy---Failure to avail such remedy---Effect---Availing of alternate remedy first for maintainability of Constitutional petition is only a rule of procedure not affecting the jurisdiction of High Court---Where point of law is involved and the same has to be ultimately resolved by High Court, Constitutional petition can be filed without availing of such remedy.

(b) Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S. 5(c)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Term 'aggrieved person'---Conditions---Locus standi---Petitioner had not moved the Bar Council for disqualifying the respondent as member of the Bar Council as petitioner had polled next highest votes and in the event of success he would have to be declared as the member of the Bar Council---Effect---Petitioner was an "aggrieved person" and had locus standi to maintain the Constitutional petition in circumstances.

(c) Legal Practitioners and Bar Councils Act (XXXV of 1973)--

----S. 5(c)(a)---Constitution of Pakistan (1973), Art. 199--rConstitutional petition---Expression 'appointed to an office of profit in the service of Pakistan'---Applicability---Respondent was appointed as Head of the Prosecution and Monitoring Cell of Provincial Law Department---Contention of the petitioner was that the respondent was appointed to an office of profit in the service of Pakistan and as such ceased to be the Member of Provincial Bar Council---Validity---True nature of the respondent's employment was that it was an "assignment" and the same partook the characteristics of legal advisorship---Such employment did not fall within the mischief of S.5-C(a) of Legal Practitioners and Bar Councils Act, 1973---Petition was dismissed accordingly.

Syeda Abida Hussain v. Tribunal for N.A. 69, Jhang-IV and 2 others PLD 1994 SC 60; Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; GATRON (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 and United Business Lines, S.I.E., Gujranwala and another v. Government of Punjab through Secretary, Local Government, Lahore and 5 others PLD 1997 Lah. 456 ref.

Raja Muhammad Anwar for Petitioner.

Muhammad Amin Lone, Asstt. A.-G., Punjab for Respondent No. 1.

Hamid Khan for Respondent No.2.

Respondent No. 3 in person.

Dates of hearing: 12th, 14th, 16th and 20th February, 2001.

P L D 2001 Lahore 372

Before Asif Saeed Khan Khosa, J

FAQIR MUHAMMAD and 9 others‑‑‑Petitioners

versus

MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB and 2

others‑‑‑Respondents

Writ Petition No. 382 of 1989, heard on 23rd January, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition ‑‑‑Laches‑‑‑Applicability‑‑‑Where the petitioners had valid explanation to offer for the delay in approaching the High Court, the inaction of the petitioners during the interregnum could not be termed as "laches"‑‑‑Petitioners were entitled to discretionary relief under Art. 199 of the Constitution in circumstances.

(b) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)‑‑‑

‑‑‑‑S. 8‑‑‑Redemption of mortgaged land‑‑‑Second application‑‑‑Plea of limitation‑‑‑Validity‑‑‑Where orders passed by Revenue Authorities did not reflect upon question of limitation as the same essentially pertained to the initial approach before the forum of first instance, High Court refused to hold the application as time‑barred accordingly.

(c) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)‑‑‑

‑‑‑‑S. 8‑‑‑Redemption of mortgaged land‑‑‑Second application‑‑­Maintainability‑‑Object and scope‑‑‑Once petition for redemption of mortgage is dismissed on merits after proper adjudication of the parties' case, then under the provisions of S. 8 of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, any further petition for redemption of that very mortgage is to be discouraged which does not mean that a bona fide subsequent application in that regard is to be non‑suited on the basis of technicality alone‑‑‑Second application for redemption of mortgaged land, held, was maintainable in circumstances.

(d) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)‑‑‑

‑‑‑‑S. 8‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Redemption of mortgaged land‑‑‑Second application‑‑­Misinterpretation of statutes‑‑‑Dismissal of first application for redemption on the ground of wrong entry in Revenue Record‑‑‑Petitioners' first application thus had been dismissed on a ground which had no nexus with any fault on the petitioner's part‑‑‑Revenue Authorities dismissed the second application on the ground that such application had already been dismissed‑‑­Validity‑‑‑Second application seeking the same relief on the basis of removal of the fault of Revenue Authorities was not hit by the spirit of the provisions of S.8 of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964‑‑‑Where the provisions of S.8 of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, were misinterpreted by the Revenue Authorities, High Court reversed the same as the interpretation had created a bad precedent‑‑‑Petitioners' right to get their property redeemed was quite clear and undeniable, therefore, High Court set aside the orders passed by the Revenue Authorities and the case was remanded for decision afresh‑‑‑Constitutional petition was allowed accordingly.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Administration of justice‑‑Suppression of information from High Court‑‑‑Effect‑‑‑Where the Authorities had misinterpreted the law and the misinterpretation was such that the fact of suppression of information about filing of a civil suit or appeal by the petitioners paled into insignificance in fade of such injustice High Court ignored the suppression of fact by the petitioners in circumstances.

Rafique Ahmed Malik for Petitioners.

Syed Nazar Hussain for Respondents Nos.4 and 5.

Nemo, for the Remaining Respondents.

Date of hearing: 23rd January, 2001.

P L D 2001 Lahore 379

Before Ali Nawaz Chowhan, J

KOHINOOR TEXTILES MILLS LTD. ‑‑‑Petitioner

versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD‑‑‑Respondent

Writ Petition No.61 of 1986, decided on 15th May, 2001.

(a) Capital of the Republic (Determination of Area) Ordinance (VI of 1963)‑‑‑

‑‑‑‑S. 2 & Sched.‑‑‑Capital Development Authority Ordinance (XXII of 1960), Ss. 2(p), 22 & Sched.‑‑‑Constitution of Pakistan (1973), Art.l99‑‑­Contitutional petition‑‑‑Capital area, determination of‑‑‑Acquisition of land under S.22 of Capital Development Authority Ordinance, 1960‑‑‑Inclusion of land owned by the petitioner in the capital area vide Notification issued by the Authorities‑‑‑Contention of the petitioner was that the land did not fall within the area specified as capital site hence the Notification was illegal and without lawful authority‑‑‑Validity‑‑‑Area of capital was specified in Schedule under S.2 of Capital of the Republic (Determination of Area) Ordinance, 1963‑‑‑Corresponding changes were not carried out in the Capital Development Authority Ordinance, 1960‑‑‑Both the Schedules were reflecting limits of the 'capital site' and 'specified areas', but the Schedule given by the Capital of the Republic (Determination of Area) Ordinance. 1963, was to replace the Schedule of the Capital Development Ordinance. 1960‑‑‑For determining the territorial limits of capital site, Schedule given by the Capital of the Republic (Determination of Area) Ordinance, 1963, was to be followed‑‑‑Inclusion of the land owned by the petitioner in the capital area was incorrect as no demarcation had been effected and the Capital Development Authority's certificate itself had shown the land not to be a part of capital area ‑‑‑Notification issued by the Authorities regarding the land of the petitioner was of no legal consequence and the same was set aside in circumstances.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 152‑‑‑Acquisition of land falling in the area of a Province‑‑­Procedure‑‑‑In a Federal set‑up, where territories of Provinces and Capital have been determined, the Federal Government and the Provincial Government have to act within their respective spheres of jurisdiction‑‑­Methodology for acquisition of land in a Province for a Federal Government is provided by Art.152 of the Constitution‑‑‑Capital Development Authority cannot act directly in the territorial limits of a Province and in case the Authority is interested in acquiring any land falling in the jurisdiction of a Province, it has to take the benefit of Art. 152 of the Constitution.

Raja Muhammad Akram for Petitioner.

Bashir Ahmad Ansari for Respondent.

Date of hearing: 20th April, 2001.

P L D 2001 Lahore 385

Before Ali Nawaz Chowhan, J

MUHAMMAD AJMAL‑‑‑Petitioner

versus

PRINCIPAL, MEDICAL COLLEGE, RAWALPINDI and others‑‑‑Respondents

Writ Petition No.2217 of 2000, decided on 17th May, 2001.

University of the Punjab Act (IX of 1973)‑‑­

‑‑‑‑Ss. 2(ii) & 5‑‑‑Calendar of the University of the Punjab, 1990 Chap. X Regln.8(1)‑‑‑Prospectus of the Government Medical Colleges in the Punjab Ss. 3 & 4‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Misconduct by student of a Government Medical College affiliated with the Punjab University‑‑‑Punishment of 2 years rustication of the student for misconduct as prescribed by Ss.3 & 4 of. the Prospectus of the Government Medical Colleges in the Punjab (issued by the Provincial Government) was awarded by the Principal of the College ‑‑‑Validity‑­Medical College although under the Health Department of the Provincial Government was nonetheless an affiliated College of the Punjab University and was governed by Calendar of the University and its regulations and, therefore, Government of the Province could not by taking support of the rule which authorised the Provincial Government to arrange for the medical education, act even in such matters which would fall under the jurisdiction of the Punjab University as envisaged by the Punjab University Act, 1973‑‑­Government Medical College, therefore, had to follow the regulations with respect to discipline meant for the Punjab University and its affiliated colleges and the punishment awarded to the student of rustication for 2 years was not in harmony with the regulations of the Punjab University as punishment prescribed in the prospectus issued by the Provincial Government was in clash with the regulations by the Punjab University as prescribed in its Calendar‑‑‑Student having completed one year period of rustication as prescribed in the University Calendar, could join the academic classes‑‑‑Principal of the College if felt that residence of the said student in the hostel of the college would create indiscipline, he could be refused the facility of the hostel and could be kept under surveillance against any anticipated act of indiscipline on his part.

Ch. Afrasiab Khan for Petitioner.

Malik Anwaar‑ul‑Haq for the University.

P L D 2001 Lahore 390

Before Abdul Shakoor Paracha, J

MUHAMMAD HUSSAIN and others‑‑‑Petitioners

versus

MUHAMMAD GULZAR‑‑‑Respondent

Civil Revision No. 1012 of 2001, decided on 24h May, 2001.

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

‑‑‑‑O.XLI, R.22‑‑‑Cross‑objections against findings of Trial Court‑‑‑Failure to tile such objections in appeal‑‑‑Effect‑‑‑Where neither any appeal nor cross‑objections as provided under O. XLI, R.22, C.P.C. were filed against findings of Trial Court, such findings of Trial Court had become final as the same had not been challenged in any Court of law.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 28, Arts. 142 & 144‑‑‑Specific Relief Act (I of 1877), S.8‑‑‑Suit for possession‑‑‑Limitation‑‑‑Adverse possession, plea of‑‑‑Validity‑‑‑Provisions of Art. 144 of Limitation Act, 1908, would not be attracted in view of non­-availability of plea of adverse possession‑‑‑Where the case was of dispossession, provisions of Art.142 of Limitation Act, 1908, would be attracted‑‑‑Dispossession must be proved from the immovable property within 12 ears preceding the date of suit.

PLD 1996 Central Statutes 1296; Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 and Shah Sultan v. Abdul Khaliq 1987 SCMR 1791 ref.

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

‑‑‑‑S. 8‑‑‑Limitation Act (IX of 1908), Art.142‑‑‑Suit for possession of immovable property‑‑‑Limitation‑‑‑Constructive possession, plea of‑‑­Effect‑‑‑Where the case was neither of trespassing nor of adverse possession, rather it was a case of permissive possession, provisions of Art.142 of Limitation Act, 1908, would be attracted.

(d) Possession‑‑‑

‑‑‑‑ Possession follows the title.

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

‑‑‑‑S. 8‑‑‑Civil Procedure Code (V of 1908), O.XLI, R.22‑‑‑Suit for possession of immovably property‑‑‑Limitation‑‑‑Objection against findings of Trial Court‑‑‑Non‑filing of objections in appeal‑‑‑Plea of adverse possession was raised by the defendants and Trial Court dismissed the suit being time‑barred‑‑‑Lower Appellate Court found the plaintiff in constructive possession and allowed the appeal as the suit was within limitation‑‑­Defendants did not file any cross‑objection before the Lower Appellate Court as provided under O.XLI, R.22, C.P.C.‑‑‑Validity‑‑‑Where defendants raised no other plea to occupy the disputed property except that which had already been decided against them by Trial Court, the defendants had no legal entitlement to remain in possession of the property‑‑‑High Court declined to interfere with the judgment passed by the Lower Appellate Court in circumstances.

PLD 1996 Central Statutes 1296; Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063; Shah Sultan v. Abdul Khaliq 1987 SCMR 1791 and Afzal Khan and 2 others v. Abdul Faheem and 4 others PLD 1994 Quetta 26 ref.

Imtiaz Hussain Khan Balouch for Petitioners.

P L D 2001 Lahore 395

Before Jawwad S. Khawaja, J

JAMSHED WAHEED‑‑‑Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary, Excise and Taxation, Lahore and

5 others‑‑‑Respondents

Writ Petition No.4799 of 2001, heard on 26th April, 2001.

West Pakistan Urban Immovable Property Tax Act (V of 1958)‑‑‑

‑‑‑‑Ss. 5‑A, 5 & 3‑‑‑Constitutional petition‑‑‑Maintainability of Constitutional petition notwithstanding availability of alternate remedy‑‑­Levy of property tax‑‑‑Validity‑‑‑Use of valuation tables by the Deputy Commissioners in the provision for the purpose of the Stamp Act and Registration Act cannot be treated as valuation tables for the purpose of S.5‑A, West Pakistan Urban Immovable Property Tax Act, 1958‑‑‑Demand raised which is based on valuation tables prepared on the basis of the capital value of properties is illegal‑‑‑Constitutional petition before High Court is maintainable notwithstanding the existence of a remedy by way of appeal given in S.10 of West Pakistan Urban Immovable Property Tax Act, 1958‑‑­Principles.

Section 3 of the West Pakistan Urban Immovable Property Tax Act, 1958, inter alia, provides for the charge and levy of a tax on the annual value of buildings and lands in any rating area at a given rate, which is a percentage of such annual value. Section 5 of the said Act provides the basis on which annual value of lands and buildings is to be ascertained. This section, inter alia, stipulates that the annual value shall be ascertained by estimating the gross annual rent at which a building may be let for use of might reasonably be expected to be let from year to year. By virtue of Finance Act, 1998, section 5‑A has been inserted in the Act. Section 5‑A provides that the annual value may be determined on the basis of such valuation tables and for such localities as may be notified by or under the authority of the Government.

As a result of applying the system for assessment of gross rental value the department had not prepared any valuation tables to assess the rental value of buildings/properties located within different rating areas Instead valuation tables, which are based on the capital value of properties and which have been prepared for the purpose of assessing stamp duty and registration fee, have been used for the purposes or section 5‑A of the Act.

The proceed adopted by the department is not in accordance with the provisions of sections 5 and 5‑A of the Act. It is true that section 5‑A empowers the relevant authority of the Provincial Government to determine gross annual rental value on the basis of valuation tables. However, the said provision does not empower the Government to prepare those valuation tables on the basis of the capital value of the properties involved, as has beer. done by the Government. The valuation tables, which have been used by the Provincial, Government in determining the gross annual rental value of properties for the purposes of the Act, admittedly, have no nexus whatsoever with the rental value of the properties in question.

The use of valuation tables, prepared by Deputy Commissioners of various districts in the Province for the purposes of Stamp Act and Registration Act cannot be treated as valuation tables for the purposes of section 5‑A of the Act. In the circumstances, the demand raised against the petitioner, which is based on valuation tables prepared on the basis of the capital value of properties, is declared to be illegal.

This order, however, shall not prevent the Provincial Government from preparing valuation tables which are based on the annual rental value of properties within different rating areas, provided such valuation tables otherwise comply with the provisions of section 5‑A and the other provisions of the Act.

Constitutional petition is maintainable notwithstanding the existence of a remedy by way of appeal given in section 10 of the Act.

ALM (Pvt.) Limited v. Director‑ General, Excise and Taxation, Punjab, Lahore PLJ 2000 Lah. 1202 fol.

Muzammil Akhtar Shabbir, Muqtedir Akhtar Shabbir and Muhammad Azhar Siddiqui for Petitioner.

Ijaz Ahmad Choudhry, Addl. A.‑G. for Respondents.

Date of hearing: 26th April, 2001.

P L D 2001 Lahore 399

Before Ali Nawaz Chowhan, J

IFTIKHAR AHMED and another‑‑‑Petitioners

versus

S.H.O. POLICE STATION KOHSAR, ISLAMABAD and 2 others‑‑‑Respondents

Writ Petition No. 1874 of 2000, decided on 27th April, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Quashing of F. I. R. ‑‑‑Grounds to be kept in view‑‑‑High Court while dealing with an application for quashing of F.I.R. would keep in view the grounds; whether there is a jurisdictional defect, a patent violation of some provision of law, whether the allegations as contained in the F.I.R. even if believed would not make out any case and the continuation of proceedings would amount to sheer abuse of process of Court, and whether an endeavour is made to enforce a civil liability through machinery of Criminal Courts.

Ladha Shah v. Zaman Ali AIR 1925 Lah. 289(2); Mahmood‑ul-­Hasan v. Imtiaz Khan and another PLD 1963 (W.P.) Lah. 481 and Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 420/468/471‑‑‑Constitution of Pakistan (1473), Art.199‑‑‑Criminal Procedure Code (V of .1898), S.561‑A‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Remedy already being pursued before a Banking Court was the one more proper‑‑‑Complainant in getting the F.I.R. registered against the accused had patently enforced a civil liability through criminal process which on the face of it was not sustainable in ‑law‑‑‑Impugned F.I.R. was consequently cancelled and the proceedings pursuant thereto were quashed‑‑­Constitutional petition was accepted accordingly.

Ladha Shah v. Zaman Ali AIR 1925 Lah. 289(2); Mahmood‑ul‑Hasan v. Imtiaz Khan and another PLD 1963 (W.P.) Lah. 481 and Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122 ref.

Raja Muhammad Anwar and Raja Shafqat Abbasi for Petitioners.

Raja Zafar Khaliq Khan for Respondent No.2.

Syed Sajjad Hussain Shah, A.A.‑G.

P L D 2001 Lahore 402

Before Amir Alam Khan, J

SAEED AHMAD SUKHERA‑‑‑Petitioner

versus

DISTRICT COUNSIL, SHEIKHUPURA through Administrator/Deputy

Commissioner, Sheikhupura and 2 others‑‑‑Respondents

Writ Petition No.6196 of 2001, decided on 3rd May, 2001.

(a) Punjab Local Councils (Taxation) Rules, 1980‑‑‑

‑‑‑‑S. 10‑‑‑Levy of professional tax by District Council‑‑‑"Professional tax"‑‑‑Connotation‑‑‑Professional tax is relatable to the person having certain vocation or calling and he can only be taxed for having such a vocation or calling and not on the basis of warehouses that such a person is maintaining‑‑‑Principles.

Professional tax is levied in regard to profession of a person, be it a natural person or a juristic person. The company, mill or factory, is no doubt composed of certain natural persons, but the same is understood in the legal parlance as a juristic person. The tax is levied in regard to the profession of natural person or a juristic person and by maintaining (sixty‑five) warehouses or more than one warehouse, as the case may be, they do not become sixty five persons/professions, therefore, the tax cannot be recovered on the basis of number of warehouses situate within the precinct of mill, factory or company.

The plea that the word "Every kind of Warehouse" as used in the Schedule means and includes each and every warehouse is not well‑based. The word as used in the Schedule issued by the Government connotes the shape, structure or construction, of the warehouse, therefore, it does not mean that the "professional tax" would also be recovered from a person for each and every warehouse that he or it is maintaining within the precinct of his/its mill, factory or company.

As far the recovery of professional tax, it cannot be interpreted to mean that a person having more than one warehouse for the storage of his goods is liable to pay professional tax on each and every warehouse. A professional tax is relatable to the person having a certain vocation or calling and he can only be taxed for having such a vocation or calling and not on the basis of warehouses that such a person is maintaining.

Black's Law Dictionary and Concise Oxford Dictionary ref.

(b) Words and phrases‑‑‑

----“Professional “and "professional "‑‑‑Connotation.

Black's Law Dictionary and Concise Oxford Dictionary ref.

M. Dilawar Mahmood for Petitioner.

Ch. Abdul Hahdood for Respondents.

Date of hearing: 23rd April, 2001.

P L D 2001 Lahore 406

Before Mrs. Fakhr‑un‑Nisa Khokhar, J

Messrs SHAHEEN WOOLLEN MILLS‑‑‑Petitioner

versus

PRESIDENT, ALLIED BANK OF PAKISTAN and others‑‑‑Respondents

Civil Revision No.649 of 1996, decided on 8th May, 2001.

(a) Negotiable Instruments Act (XXVI of 1881)‑‑‑

‑‑‑‑S. 5‑‑‑Letter of Credit‑‑‑Object and, scope‑‑‑Letter of Credit is invariably irrevocable in nature and is made to ensure the payments of goods to vendor without any reference to the buyer‑‑‑Contract is necessary between two Banks, one of them issuing a Letter of Credit, on the other Bank authorising release of payment on production of appropriate documents evidencing the shipment of goods by the seller without any reference to the buyer‑‑‑Such contracts are of international character‑‑‑Any restraint upon the encashment of negotiable instrument creates serious complications, hardships and anomalies in the international trade and shatter confidence of traders in international banking system‑‑‑Only exception is act of fraud, mischief or injustice in relation to document of shipment evidencing the shipment of goods to the knowledge of Bank‑‑‑Letter of Credit lays down an absolute unconditional obligation on the Bank irrespective of any dispute between the parties whether they have pursued their part of contract or there was some breach in the discharge of their respective obligations.

Central Textile Mills Ltd. v. Industrial Development Bank of Pakistan 1989 CLC 1194; Ajaz Anis v. Tariq Isa and 6 others 1999 CLC 259 and Svenska Handels Banken v. Messrs Indian Charge Chrome and others 1995 PSC 1276 ref.

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

‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Negotiable Instruments Act (XXVI of 1881), S.5‑‑‑Interim injunction, grant of‑‑‑Obligation arising under Letter of Credit‑‑‑Restraining from release of amount of Letter of Credit‑‑‑Plaintiff sought restraint on the ground that the defendant did not supply the goods as per contract and was not liable to release of amount against substandard gods‑‑‑Both the Courts below declined to grant interim injunction in favour of the plaintiff‑‑‑Validity‑‑‑Unless there was a strong case .of forgery, irretrievable injury, injustice or gaining wrongful advantage from contract with regard to establishment of Letter of Credit, no restraint order could be passed on an obligation arising under a Letter of Credit which laid down an absolute unconditional obligation on the Bank irrespective of any dispute between the parties, for performance or non‑performance of the contract: in discharge of their respective obligation‑‑‑Where the plaintiff had found the goods to be of substandard quality, he could always sue the seller for damages‑‑‑High Court declined to interfere in the concurrent judgments of both the Courts below.

Muhammad Nadeem Butt v. U.B.L. through Manager and others 2000 CLC 1436 and Messrs Middle East Bank Ltd. v. Zubair Ahmad Khan Afghani 1990 MLD 909 ref.

Izhar‑ul‑Haq Gillani for Petitioner.

Sh. Nazir Ahmad for Respondents Nos. 1 and 2.

Ch. Babar Akram Ghuman for Respondent No.3.

Date of hearing: 8th May, 2001.

P L D 2001 Lahore 411

Before Jawwad S. Khawaja, J

GHARIBWAL CEMENT LTD. through Company Secretary, Lahore and

another‑‑‑Plaintiffs

versus

ENGLISH LEASING LTD. through Chief Executive and another‑‑‑Defendants

Civil Original Suit No. 107 of 2000, heard on 7th May, 2001.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 2(e)‑‑‑"Finance"‑‑‑Connotation‑‑‑Finance can be provided by a Banking Company even without a disbursement of funds‑‑‑Facilities for establishing Letters of Credit and all non‑fund based facilities including guarantee facilities are by definition, types of finance which came into existence without an actual disbursement of funds by a Banking Company‑‑­Word "disbursement" having not been used in the Act, it would not be justified to restrict the definition of "finance" to instances where disbursement had actually been made by a Banking Company‑‑‑Actual disbursement of funds, therefore, was not necessary attribute of finance‑‑­Principles.

Finance can be provided by a Banking Company even without a disbursement of funds facilities for establishing Letters of Credit and all non-­fund based facilities including guarantee facilities etc. are by definition types of finance which come into existence without an actual disbursement of funds by a Banking Company.

Even otherwise the word "disbursement" has not been used in the Act while defining the term "finance". Considering the wide scope of the working employed to define the said term, it would be unjustified to restrict the definition to instances where disbursement had actually been made by a Banking Company. Finance can be said to have even been provided by a Banking Company to a customer where both customer and Banking Company stand irrevocably committed by a contract, respectively to receive and provide finance upon such conditions as may have been agreed upon between them. As such a financing agreement which obliges a Banking Company and customer to do certain acts, may constitute the providing of finance by a Banking Company notwithstanding the fact that disbursement of funds to either is deferred or is subject to fulfillment of certain conditions by a customer or is dependant upon the occurrence of a contingency. In this view of the matter, the argument that actual disbursement of funds is a necessary attribute of finance, as defined in the Act, is without merit.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑S. 2(e)‑‑‑Civil Procedure Code (V of 1908), O.VII, R.10‑‑‑Plaintiff (lessee) and the Banking Company had executed an equipment lease agreement‑‑‑Agreed finance was to be provided on terms and conditions which had been set out in the agreement itself‑‑‑Agreement showed that "acceptance receipt" mentioned therein was a material requirement, the issuance of which would, in fact, create the obligation of the Banking Company to provide finance‑‑‑Issuance of the acceptance receipt, however, was not an obligatory condition, which had to be fulfilled by the lessee; there was, in fact no provision in the agreement requiring the lessee to issue the acceptance receipt‑‑‑Wording of the agreement was apparent that the lessee may or may not (as its sole option) issue the acceptance receipt, it was a condition which, when fulfilled by the lessee, would have resulted in the obligation of the Banking Company to provide finance to the lessee‑‑­Issuance of an acceptance receipt in this way, was materially distinct from the performance of a condition precedent to disbursement of funds ‑‑‑Non­-fulfilment of condition precedent, though may result in the refusal of Banking Company to disburse funds, a condition precedent was nonetheless a condition which by contract, a customer had agreed to perform‑‑‑Only interpretation of the agreement, in circumstances, would be that the obligation of the Banking Company to provide finance and that of the lessee to take the equipment on lease had not, in fact, arisen and they were not locked into commitment or reciprocal promises which they were contractually obliged to perform and which, if performed, would lead to the disbursement of the agreed lease finance by the Banking Company‑‑‑Action necessary for the locking in the parties viz. the issuance of the acceptance receipt was not itself a contractual commitment or reciprocal promise, Banking Company, therefore could not be said to have provided finance to the lessee (plaintiff) merely because the two parties had signed the agreement‑‑‑Lessee could not claim to be a customer and was, thus, not entitled to invoke the jurisdiction of High Court under Banking Companies (Recovery of Loans. Advances, Credits and Finances) Act, 1997‑‑‑Lessees being not customers as defined in the Act. High Court, in circumstances, had no jurisdiction to try the suit‑‑‑High Court returned the plaint to the plaintiffs (lessees) under O.VII, R.10, C.P.C. for filing the same before a competent Court.

(c) Jurisdiction‑--

‑‑‑‑Actions of contracting parties cannot vest jurisdiction in a Court nor divest the Court of such jurisdiction in derogation of the provisions of a statute.

Ahmar Bilal Soofi for Plaintiff.

Haq Nawaz Chatha for Defendants.

Date of hearing: 7th May, 2001

P L D 2001 Lahore 418

Before Mumtaz Ali Mirza, J

Syed SHUJAT HUSSAIN‑‑‑Petitioner

versus

CAPITAL DEVELOPMENT AUTHQRITY through Chairman and another

‑‑‑Respondents

Writ Petition No.560 of 1999, decided on 16th April, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Allotment of plot to petitioner‑‑­Cancellation of allotment‑‑‑Validity‑‑‑Authority had not denied the allotment of plot in favour of the petitioner its delivery of possession to him, receipt of the lease money and execution of a formal registered lease deed in favour of the petitioner‑‑‑Held, if such facts were admitted, that shall lead to only one result that the transaction in respect of the plot which commenced with the allotment of plot in favour of the petitioner was complete in all respects on the execution and registration of the formal lease deed and nothing remained to be done by the Authority‑‑‑All the decisive steps having been taken, no power was left with the Authority to undo the completed transaction as the same had taken legal effect, clothing the petitioner with the right of a lease‑‑‑Cancellation of plot could not have been ordered as decisive steps had been taken pursuant 'to the allotment and transaction had attained finality‑‑‑Cancellation of allotment being violative of settled law, was wholly illegal, without jurisdiction and coram non judice‑‑‑Where the basic order was without jurisdiction and without lawful authority entire superstructure of orders built thereupon suffered from the same legal 4efect and infirmity from which the original order suffered, ‑‑‑of the President of Pakistan made on the representation of the Authority against the recommendation of Wafaqi-Mohtasib of restoring the allotment could not cure the defect from which the order of cancellation suffered‑‑‑Cancellation of allotment of plot, refund of lease money to the allottee and resumption of the possession of the plot tested on the touchstone of the settled law were inconsequential to the rights of the allottee and the same were declared to be without lawful authority and of no legal effect‑‑‑Authority was directed by the High Court to restore the possession of the plot to the petitioner forthwith and , give effect to the recommendations of the Wafaqi Mohtasib.

Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973 fol.

Pakistan through‑the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973 and Chairman, Selection Committee/Principal, King Edward Medical College, 'Lahore and 2 others v. Wasif Zamir Ahmad and another 1991 SCMR 15 ref.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Cancellation of allotment of plot to the petitioner‑‑‑Validity‑‑‑Order of cancellation of plot was passed behind the back of the allottee (petitioner) without notice and in his absence‑‑‑Such a cancellation being violative of the basic principle of natural justice which, was recognised the world over, could not be upheld‑‑-Affording an opportunity of hearing to the person affected by an order was a sine qua non for the passing of such an order‑‑‑Authority, therefore, could not unilaterally, without notice to the allottee; behind his back, direct the cancellation of allotment.

1994 SCMR 2232 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 25‑‑‑Constitutional petition‑‑‑Equality of citizens‑‑­Allotment of plot of the petitioner was cancelled by the Authority on the plea that same was actuated by public purpose and on the basis that the scheme for allotment had been changed for dividing the allottees of plots of the scheme into two groups, one constituting serving officers and the other consisting of retired officers‑‑‑Validity‑‑‑Article 25 of the Constitution of Pakistan (1973) guarantees equal treatment to all the citizens of Pakistan and no discrimination is permissible against any one ‑‑‑Authority in the present case, had disclosed no basis for dividing the allottees in two categories‑‑­Government can make reasonable classification between two groups/sets of citizens but the said classification must be based on some intelligible differentia ‑‑‑Some rationale, wisdom or philosophy behind such classification had to be present in such a case‑‑‑Nothing of the sort was forthcoming from the decision of the Authority lying at the basis of the cancellation of allotment of the petitioner‑‑‑Authority had fallen back upon the pleas that the cancellation of allotment of plot to the petitioner was actuated by public purpose‑‑‑Order of the President of Pakistan made on the representation of the Authority against the recommendations of Wafaqi Mohtasib of restoring the allotment could not cure the defect from which the order of cancellation suffered‑‑‑Cancellation of allotment of plot, refund of lease money to the allottee and resumption of the possession of the plot tested on the touchstone of the settled law were inconsequential to the rights of the allottee and the same were declared to be without lawful authority and of no legal effect‑‑­Authority was directed by the High Court to restore the possession of the plot to the petitioner forthwith and give effect to the recommendations of the Wafaqi Mohtasib.

I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 ref.

(d) Constitution‑ of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Public purpose ‑‑‑Concept‑‑‑Public purpose was not something which lay hidden on the back of the imagination of a person or Authority, it should rather be declared, express and open purpose so as to stand the test of scrutiny of the Court‑‑‑In the absence of any clue having been given by the Authority as to alleged public purpose the plea based thereupon could not be accepted as correct.

(e) Natural justice, principles of‑‑‑

‑‑‑‑Right of hearing‑‑‑Affording opportunity of hearing to the person affected by an order is a sine qua non for the passing of such an order.

(f) Maxim‑‑‑

‑‑‑‑"Audi alteram partem"‑‑‑Rule of‑‑‑Presumption of existence of said rule in every statute‑‑‑Right of an opportunity of hearing before an order is passed against a person shall be deemed to be written in every statute even if there is no express provision to that effect.

1994 SCMR 2232 rel.

Abdur Rashid Awan for Petitioner.

Malik Muhammad Nawaz for Respondent No. 1.

Raja Iftikhar Ahmad Javed, Standing Counsel for Respondent No.2

Date of hearing 11th April, 2001.

P L D 2001 Lahore 426

Before Muhammad Nawaz Abbasi, J

BAYINDIR INSAAT‑‑‑Petitioner

versus

PAKISTAN through Ministry of Communications and 3 others‑‑‑Respondents

Writ Petition No. 1386 of 2001, decided on 7th May, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope‑‑­Contractual disputes either in private or public contracts are not subject to judicial review unless it is shown that public functionary in a contract has committed breach in violation of the statutory duty and the dispute can be resolved without examination of controversial question of fact‑‑‑Essential conditions for exercise of Constitutional jurisdiction in the contracts with the Government enlisted.

The contractual disputes either in private or public contracts are not subject to judicial review unless it is shown that a public functionary in a contract has committed breach in violation of statutory duty and the dispute can be resolved without examination of controversial question of fact in the ordinary circumstances, there can be no departure from the rule that the contractual obligations are not subject to judicial review and the parties cannot invoke the Constitutional jurisdiction of High Court in such matters but at the same time there is no cavil to the proposition that the public functionaries are under legal and moral duty to own the commitments made in the contracts between the private parties and the Government and must adhere to the principle of fairness and reasonableness. The action of public functionaries in relation to the contractual obligation, if found tainted with mala fides, unfairness and unreasonableness, the breach shall be subject to judicial review on the touchstone of the golden principle of fairness in Islam in the dealings with each other and in the matter of rights and duties in private and public life. The following are the essential conditions for exercise of Constitutional jurisdiction in the contract with the Government:‑‑

(a) That there is a breach of performance of public duty in relation to a contract and that the remedy under the general law is neither beneficial nor efficacious and adequate to provide justice.

(b) That the action of a public functionary in a contractual matter is arbitrary, unfair, unreasonable and mala fide.

(c) That the dispute in relation to the breach of contract does not involve any factual controversy or inquiry and can be decided only as a question of law on the basis of given facts.

(d) That the breach in relation to the contractual obligation is violative of statute and the dispute arose is confined only to that extent without involving the factual dispute relating to the terms and conditions of a contract.

In the present case the perusal of the contract would show that the employer is empowered not only to expel the contractor but also to terminate his employment as a contractor. The employer took the composite action through the notice of termination and with the expulsion of contractor and also terminated the contract and, thus, the question relating to the legality of termination of contract either rightly or wrongly would not be adjudicatable by High Court in its Constitutional jurisdiction and the remedy would be either to invoke the arbitration clause as provided in the contract or file a suit for damages for the breach of the contract. The employer terminated the contract for violation of its conditions by the contractor and consequently the identification of reason in the background for such an action without factual inquiry would not be possible and it would be difficult to hold that the contractor was not at fault or the employer proceeded unfairly and unreasonably and this may not be out of place to mention here that even if the contract was wrongly terminated, the dispute would not be subject to judicial review of High Court. It is a matter of record that contractor was allowed extra time through the addendum for completion of sectional work and on his failure to do the needful, he was given further time for twenty-­seven days and ten days but still he failed to achieve the target and in consequence thereto, the Engineer through letter informed the contractor that he was not entitled to further extension and, thus, there was no bar for the employer to take action under contract. The contractor while raising the dispute regarding his entitlement for further extension of time could conveniently invoke the arbitration clause. The proposition that the writ jurisdiction can be invoked in contractual matter if the dispute is confined to the extent of violation of the statutory duty being not disputed, it can be safely said that no such violation is involved in the present case.

The present case involved a mixed question of law and fact and consequently it would be difficult to decide the disputes of mixed character only on the basis of principle of law laid down by the superior Courts without establishing the essential facts. The examination of the matter as demonstrated by the parties would show that due to practical difficulties faced by the contractor for non‑completing the project within the time specified under the revised contract, the authorities firstly through addendum have extended the dates to enable the contractor to complete the project and sectional work and secondly the Engineer allowed further time to complete the sectional work on priority. There is no denial to the fact that the conditions of the revised contract varied to the original contract and further certain relaxations were given through addendum in the interest of the project at the cost of extra‑financial burden and it is also an admitted fact that the contractor failed to perform his part of the contract with regard to the completion of sectional work even in the extended time. It is clearly provided in the contract that in such a situation, the employer is empowered to expel the contractor and also terminate the contract and thus the breach of condition contained in the contract either in partial or in toto would authorise the employer to invoke relevant clause of the contract.

The contract provided that in case of non‑performance, the defaulting party would render himself answerable to the other party and the other party, in exercise of his power under the contract, can take an appropriate action in terms of the contract and if the action is in the form of termination of contract, the defaulting party cannot claim performance of remaining part of the contract. In the present case, the controversy apparently seems to be confined only to the extent of grant or refund of the extension of time for completion of sectional work but as contended the employer suffered a huge loss due to non‑completion of work within the stipulated time, therefore, the matter would definitely involve scrutiny of disputed question of facts for non‑completion of work within the time given to the contractor. There can be no deviation from the principle that the public functionaries are under legal obligation to honour the commitments made by the Government with the private parties and the citizens but at the same time, it is also the duty of the public functionaries to act in the public interest in performance of their functions. The construction of motorway is a heavy burden on the public exchequer and the requirement of strict compliance of the contractual obligation by the parties in such project of national importance would be in the public interest and, therefore, no exception can be taken to the rule of strict compliance in such cases.

Expulsion of the contractor and the termination of the contract by the employer is not questionable before High Court in the exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The relief being sought by the contractor through Constitutional petition regarding the enforcement of contract pending arbitration of the dispute cannot be extended.

Messrs Airport Support Services v. The Airport Manager, Quaid‑e‑Azam International Airport, Karachi and others 1998 SCMR 2268; PLD 1966 SC 639; 1986 SCMR 1096; AIR 1989 SC 1642; AIR 1990 SC 1031; AIR 1991 SC 537; 1998 CLC 1178; 2001 CLC 681; Nizam‑ud‑Din and another v. Civil Aviation Authority and another 1999 SCMR 467; PLD 1965 SC 83; 1968 SCMR 1136; 1969 SCMR 122; 1974 SCMR 519; PLD 1977 Kar. 191; 1990 CLC 394; 1992 CLC 2396; PLD 1992 Lah. 400; 1994 CLC 1733; 1995 MLD 15; 1995 MLD 912; 1996 CLC 279; 1999 CLC 26 and PLD 2000 Kar. 224 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑"Public interest"‑‑‑Connotation‑‑‑Contractual obligation.‑‑High Court is not supposed to exercise equitable jurisdiction to perpetuate the contractual or other wrongs or to interfere in the contractual disputes‑‑‑Question whether despite the breach of contract by the contractor at the cost of extra burden to the exchequer the termination of the contract was not in the "public interest" would not be ascertainable without scrutiny of facts in detail‑‑‑High Court under its Constitutional jurisdiction, could not go into such questions nor could decide that non‑performance of contract was injurious to the national and public interest nor could determine the question of entitlement of the contractor for grant of further time to complete the project or permit him to continue with the contract till the decision of the dispute through arbitration‑‑‑Contention that the purported exercise of power for taking action of termination of contract may not be in the public interest had no force‑‑‑Notwithstanding the nature of dispute in an engineering contract, the enforcement of contract in full or part after its termination, would amount to bring the parties back to the position prior to the termination of the contract and the exercise of Constitutional jurisdiction in such manner is not only prohibited but impossible.

"Public interest" means something in which the public, the community at large has some pecuniary interest or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or national Government.

The question whether despite the breach of contract by the contractor at the cost of extra burden to the exchequer, the termination of the contract is not in the "public interest" would not be ascertainable without scrutiny of facts in detail and consequently High Court neither can go into such question nor can be held that non‑performance of contract was injurious to the national and public interest and consequently determine the question of entitlement of the contractor for grant of further time to complete the project or permit him to continue with the contract till the decision of the dispute through arbitration in exercise of its Constitutional jurisdiction. Therefore, the contention that the purported exercise of power for taking action of termination of contract may or may not be in the "public interest" has no force. The examination of the matter in context to the relevant clause of the contract would show that the employer as well as the contractor while pleading wrongs of each other have attributed the non‑performance of the contract and breach of conditions contained therein and thus by shifting the burden of default and breaches to each other tried to justify their conduct and thus the question that which party was on the wrong side and which was on the right side cannot be determined through interpretation of different clauses of the contract without fixing the responsibility through evidence. Constitutional petition containing the relief relating to the enforcement of the contract cannot possibly be entertained and the contractor without the intervention of High Court can claim the settlement of the dispute through arbitration under the relevant clause of the contract. High Court is not supposed to exercise equitable jurisdiction to perpetuate the contractual or other wrongs or interfere in the contractual disputes. The employer in the present case, in exercise of his powers under the contract while giving fourteen days' notice to the contractor could enter upon the site and terminate the employment of the contractor without releasing him from any of his obligation or liability under the contract. The employer is also empowered under the abovesaid clause to himself complete the work or appoint any other contractor for completion of work and in such an eventuality, the employer may use the equipment and material belonging to the contractor. The contractor upon expulsion having lost the right of performance of the contract cannot claim even temporary enforcement of contract pending the dispute in arbitration. The law on the subject is that notwithstanding the nature of dispute in such an engineering contract, the enforcement of contract in full or part, after its termination, would amount to bring the parties back to the position prior to the termination of the contract and the exercise of Constitutional jurisdiction in such manner is not only prohibited but impossible.

Black's Law Dictionary ref.

(c) Words and phrases‑‑‑

‑‑‑‑‑‑ Public interest"‑‑‑Connotation.

Black's Law Dictionary ref.

S.M. Zafar for Petitioner.

Fakhruddin G. Ebrahim and M. Shahid Paracha for the National Highway Authority.

Abdul Hafeez Pirzada for the Sub‑Contractors.

Qazi Ahmad Naeem, Federation Counsel.

Date of hearing: 4th May, 2001.

P L D 2001 Lahore 444

Before M. Javed Buttar, J

MILKMEN PRODUCER COOPERATIVE SOCIETY LIMITED and 8 other

Petitioners

Versus

COMMISSIONER RAWALPINDI DIVISION, RAWALPINDI and 5

others‑‑‑Respondents

Writ Petition No.1441 of 2000, Civil Miscellaneous Nos. 2258, 2259 and 1710 of 2001. decided on 11th April, 2001.

Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑S. 65‑‑‑Civil Procedure Code (V of 1908), S.151‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional, petition‑‑‑Contention of the petitioners was that until the cattle colony was established' by the Urban Local Council for meeting the, genuine needs of milkmen, any action on the part of the Local Council prohibiting the milkmen from carrying on the business of supply of milk within the limits of Local Council and Prohibiting them from keeping and maintaining the cattle in the prohibited zone was illegal‑‑‑Constitutional petition also accompanied an application seeking temporary injunction arid a restraint order against the local Council which was passed by the High Court‑‑‑High Court on the next date of hearing, with the consent of the parties, constituted a Committee to resolve the matter for obtaining land for the cattle colony etc. ‑‑‑Petitioners thereafter moved another application alleging the violation of the restraint order stating that tile Local Council had started a campaign of confiscation of buffaloes found within the premises of the petitioners‑‑ ‑Local Council through a written statement took tile stand that restraint order passed by the High Court stood merged in and modified by the order constituting the Committee to arrange the land for colony ‑ Validity‑‑‑Held, by no stretch of imagination the order of the High Court constituting the Committee could be made to mean the withdrawal or modification of the restraint order‑‑‑When by controverting an injunctive order the patty against whom the order was passed had done something for its own advantage to the disadvantage of the other party, the Court under its inherent jurisdiction, could bring back the party to a position where it originally stood as it the order had been laid down so that no party was allowed to take advantage of his wrong in spite of the order to the contrary passed by the Court ‑‑‑Petitioners, in circumstances, were entitled to the restoration of the possession as it existed because if the Court did not come to their aid and if the Court permitted the violation of its restraint order by the executive, the end result would be merely anarchy‑‑­Authorities were directed by High Court to snake arrangements for the return of the whole of the cattle evacuated within 24 hours‑‑‑Petitioners who wished to bring their cattle back to their premises within the limits of Municipal Corporation, shall not be obstructed and stopped in any manner by the Authorities and the said cattle shall be kept within the four walls of the premises of the concerned petitioner‑‑‑No cattle owner, however, shall be permitted to keep the cattle on the road side or in any street.

Bakhtawar and other§ v. Amin and others 1980 SCMR 89 fol.

Lohrasib Khan v. Babu Ali 1992 ALD 421(1) ref.

Ch. Muhammad Wasi Zafar for Applicant (in C.M. No.2258 of 2001).

Ibad‑ur‑Rehman Lodhi for Petitioners with Ch. Nazir Ahmad, President, Milkmen Producer Cooperative Society Limited.

Sajjad Hussain Shah, Addl. A.‑G.

Sardar Muhammad Ishaq Khan for Respondent No. 1.

Agha Tariq Mahmood Khan, Legal Advisor of Municipal Corporation, Rawalpindi.

Muhammad Afzal, Inspector (Legal), Representative of S.S.P., Rawalpindi.

P L D 2001 Lahore 453

Before Mian Saqib Nisar, J

C.P.C. RAFHAN LIMITED‑‑‑Petitioner

versus

PROVINCE OF THE PUNJAB through Secretary to the

Government Lands Colonies, Government of the

Punjab, Lahore and 7 others‑‑‑Respondents

Writ Petition No. 8275 of 1999, decided on 11th May, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Sale of State land‑‑‑Determination of price by the Competent Authority‑‑‑Validity‑‑‑Rule of promissory estoppel‑‑­Applicability‑‑‑Authority had agreed to sell the property to the petitioner, a lessee through a private treaty, but never made any promise qua the price, which was yet to be determined by the Competent Authority and conveyed to the petitioner‑‑‑Competent Authority fixed the price of the property but the same was not accepted by the petitioner‑‑‑Price fixed by the Competent Authority which was its prerogative as seller having not been accepted by the petitioner it could not be said that the State ever agreed to sell the property at a particular price and having not sold to the petitioner at that price the State had breached the rule of promissory estoppel ‑‑‑Government was not bound by any rule of Contract Law, the principle of fair-play, equity for promissory, estoppel to necessarily convey the property to the petitioner for the prices the petitioner wanted to offer‑‑‑Petitioner having not agreed to the price as fixed by the Competent Authority and having no vested right, the State was well within its authority to change its decision to sell the property to the petitioner through a private treaty and in order to fetch the better competitive price could direct the sale through open auction‑‑‑Petitioner, being a lessee of the property and being always keen to purchase the property in question, High Court, in circumstances, observed that in case the petitioner was not the highest bidder in the auction held by the Authorities, then before taking the decision to approve the auction for the price offered by the highest bidder, the petitioner must be offered to match the highest bid and in case, that was so done by the petitioner, the property be sold to him.

Writ Petition No. 19065 of 1998 and 1994 CLC 369 distinguished.

Writ Petition No. 19065 of 1998; Syed Ali Shah's case 1994 CLC 369; Ghazi Fabric International Limited, Gulberg‑III, Lahore's case PLD 2000 Lah. 349; Ghulam Mustafa Jatoi's case 1994 SCMR 1299; Messrs Farid Sons Limited, Karachi's case PLD 1961 SC 537; Mehar Zulifqar Ali Babu and others' case 1997 SCMR 117; Messrs M.Y. Electronics Industries (Pvt.) Limited through Manager's case 1998 SCMR 1404; Mst. Nur Jehan Begum's case 1991 SCMR 2300; Messrs Army Welfare Sugar Mills Limited's case 1992 SCMR 1652 and Shaukat Ali's case 1997 SCMR 342 ref.

Raja Muhammad Anwar, Aftab Ahmed Khan and M.R. Sheikh for Petitioners.

Malik Khizar Hayat Khan, Asstt. A.‑G.

Muhammad Arshad Bhatti, Secretary, Punjab Privatization Board.

Ali Hussain, Law Officer for Punjab Privatization Board.

P L D 2001 Lahore 459

Before Muhammad Farrukh Mahmud, J

Mst. MIRAN MAI ‑‑‑Petitioner

versus

STATION HOUSE OFFICER, C.I.A. MULTAN ‑‑Respondent

Criminal Miscellaneous No.432‑H of 2001, decided on 16th May, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑‑Habeas corpus petition ‑‑‑Detenu was found in custody of police and police officer concerned had stated that the detenu was arrested as complainant in his supplementary statement had shown his suspicion against the detenu‑‑‑Date of recording of the statement of the complainant was manipulated by the police and Zimni had shown that Investigating Officer had given flimsy excuse for not producing the detenu before the Magistrate ‑‑‑Habeas corpus petition was converted into a bail application and allowing the same detenu was directed to join investigation as and when so required.

Rana Khalid Mehmood for Petitioner.

P L D 2001 Lahore 460

Before Ijaz Ahmad Chaudhry, J

ZULFIQAR ALI ‑‑‑ Petitioner

versus

SUPERINTENDENT OF POLICE, BHAKKAR and 6 others‑‑‑Respondents

Writ Petition No.7242 of 2001, decided on 3rd May, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 324/353/186/148/149‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑No dispute existed between the accused and the complainant police official who alongwith other police officials had gone to the spot for executing the order passed by Tehsildar and for maintaining the peace and tranquillity in the area‑‑‑Accused had attacked the police party while armed with weapons‑‑‑Civil litigation pending between the private parties had no nexus with the impugned F.I.R. which had been registered by the police in which the accused was alleged to have interfered in the performance of official duties by the police‑‑‑Case was under investigation and the accused was at liberty to produce all evidence before the Investigating Officer for redress of his grievance, if any‑‑‑High Court could neither assume the role of an Investigating Officer, nor could quash the F.I.R. and throttle the prosecution‑‑‑Constitutional petition was dismissed in limine accordingly.

Abdullah v. The State 1998 PCr.LJ 732; Muhammad Shafi and others v. The State 2000 MLD 762; Muhammad Shafi v. S.H.O., Tiba Sultanpur 1987 SCMR 601 and Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan and others 1994 SCMR 2142 ref.

Masood Mirza for Petitioner.

Date of hearing: 3rd May, 2001.

P L D 2001 Lahore 463

Before Asif Saeed Khan Khosa and Muhammad Farrukh Mahmud, JJ

ABDUL RAOOF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No. 185 of 2001, decided on 24th May, 2001.

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

‑‑‑‑S. 540‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(c)‑‑­Qanun‑e‑Shahadat (10 of 1984), Arts.132 & 133‑‑‑Re‑summoning of prosecution witnesses for cross‑examination‑‑‑Accused, after examination of prosecution witnesses, could not get them cross‑examined on account of non­-availability of his counsel and since under the directions of High Court trial of the accused was to be concluded up to the specified date, Trial Court by its order closed the right of the accused to cross‑examine the witnesses‑‑­Application for re‑summoning the said witnesses for cross‑examination, was dismissed‑‑‑Validity‑‑‑Cross‑examination was most valuable right of an accused and was the only vehicle through which the truth or falsity of the witnesses could be determined if a prosecution witness was not cross-­examined then the accused's case could be seriously prejudiced ‑‑‑Cross-­examination was a specialised job which could only be made by a counsel‑‑­High Court, though had given direction in the case to conclude the trial up to the specified date, but in true spirit such direction was only for a speedy conclusion of the trial and in exceptional circumstances the time could be extended in the interest of justice‑‑‑Neither Court had put question to ascertain the truth to the prosecution witnesses nor the accused cross-­examined the witnesses himself‑‑‑High Court accepted the application and directed the Trial Court to re‑surhmon prosecution witnesses for cross-­examination.

(b) Criminal trial‑‑‑

‑‑‑‑ Evidence‑‑‑Witness‑‑‑Cross‑examination of a witness ‑‑‑Value‑‑‑Cross-­examination of a witness was the most valuable right of an accused in a case against him, same being the only vehicle through which the truth and falsity of witness could be determined‑‑‑In absence of cross‑examination case of accused could seriously be prejudiced.

Ch: Pervaiz Aftab for Petitioner.

Muhammad Qasim Khan, A.A.‑G. (on Court's Notice).

P L D 2001 Lahore 465

Before Asif Saeed Khan Khosa, J

THE STATE‑‑‑Petitioner

versus

HUSSAIN and others‑‑‑Respondent

Reference No. 1 of 1997, heard on 28th March, 2001.

(a) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)‑‑‑

‑‑‑‑Ss. 4 & 4‑A‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Transfer of case from Sessions Court to Special Court in order to consolidate the two counter‑cases‑‑‑Reference to High Court‑‑‑Two counter‑F.I.Rs. regarding the same incident had been registered at the police station‑‑‑In, one F.I.R. accused party was alleged to have used 12 bore guns, a hatchet and a dagger, challan of which had been submitted in the Sessions Court ‑‑‑Challan of the other case in which the accused party had allegedly used a semi­automatic rifle apart from the other weapons had been received in the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975‑‑‑Special Court refused to transfer the case pending before Sessions Court to itself on the ground that the offences involved in the said criminal case were not included in the Schedule appended with the aforesaid Act and the case, therefore, could not be tried by it and it sought guidance in this regard from the High Court through the present reference‑‑‑Held, Special Court constituted under the Suppression of .Terrorist Activities (Special Courts) Act, 1975, by virtue of its S.4 had no jurisdiction to try any offence which was not a scheduled offence‑‑‑High Court also, according to the provisions of S.4‑A of the said Act, although had the jurisdiction to transfer a criminal case from one Special Court to another Special Court, but it had no power to transfer any case from a Court of Session to the Special Court‑‑‑Rule that two or more cases pertaining to the same incident but advancing different versions thereof should ordinarily be tried together before the same Court, was only a rule of propriety and not one of any statutory requirement‑‑‑Such a rule of propriety if could not be strictly followed then trial of such cases by different Courts would be permissible and would not offend against any law‑‑‑Transfer of case pending before Sessions Court to the Special Court and trial of case pending before the Special Court by the Sessions Court being impossible, Special Court as well as the Sessions Court were advised to proceed with the respective trials of cases pending before them separately‑‑‑Reference was answered accordingly.

Muhammad Sadiq v. The State and another PLD 1971 SC 713 and Khair Din v. Inayat and another 1974 SCMR 140 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ Rule of propriety‑‑‑Applicability‑‑‑Rule of propriety being not a statutory rule cannot be inflexible because a situation may arise where adherence to such a rule may be an impossibility.

Muhammad Sadiq v. The State and another PLD 1971 SC 713 and Khair Din v. Inayat and another 1974 SCMR 140 ref.

Abdul Hayee Gillani for the State.

Malik Muhammad Saleem for Respondent.

Date of hearing: 28th March, 2001.

P L D 2001 Lahore 469

Before Riaz Kayani and Bashir A. Mujahid, JJ

GHULAM MURTAZA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 518 of 1996, heard on 30th May, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Conviction of accused had not been challenged‑‑‑Deceased, a young boy of 16 years while coming from school resisted the evil designs of the accused for being sodomized and he straightway went to his father to complain about the behaviour of the accused‑‑‑Instead of feeling ashamed for such a lecherous behaviour accused picked up a carbine and fired at the deceased killing him at the spot who died unsung in his adolescence‑‑‑Accused, therefore, deserved no leniency‑‑­Application of S.308, P.P.C. was completely out of question as the accused had failed to prove his age to be below 18 years‑‑‑No mitigating circumstance was available to compel the Court to award lesser penalty of imprisonment for life to the accused‑‑‑Conviction and sentence of death of ‑accused were confirmed in circumstances.

Kh. Sultan Ahmed for Appellant.

Sardar Muhammad Latif Khan Khosa for the Complainant.

Sadaqat Mehmood Butt for the State.

Date of hearing: 30th May, 2001.

P L D 2001 Lahore 474

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD SALEEM‑‑‑Petitioner

versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB and 5 others‑‑‑Respondents

Writ Petition No.6026 of 2000, decided on 9th May, 2001

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/452/34‑‑‑Constitution of Pakistan (1973) Art. 199‑‑‑ Constitutional petition‑‑‑Re‑investigation ordered in the case after submission of challan in the Court‑‑‑Validity‑‑‑Complainant had firstly taken a chance while appearing before the Investigating Officer in the second round of investigation and secondly when the decision came against him he opted to file the Constitutional petition for declaring the order of re‑investigation as illegal and unlawful‑‑‑Complainant could not avail two remedies at the same time‑‑‑Finding of the Investigating Officer declaring one accused innocent in re‑investigation could not affect the trial as the challan had already been submitted in the Sessions Court‑‑‑Trial Court even after receipt of subsequent challan was not bound to frame the charge under 5.322, P.P.C. which was the result of the second investigation and it was empowered to frame the charge under 5.302, P.P.C.‑‑‑Trial Court was duty bound to see the evidence which was to be produced coupled with the facts and circumstances of the case before framing the charge and it was not bound to frame the charge only under tire provision applied by the police‑‑‑Submission of subsequent challan, therefore, would not materially affect the complainant in the trial which was pending before the Sessions Court‑‑‑No mala fides had been alleged against the Investigating Officer who had performed his duties in a lawful manner after the entrustment of the case to him and it was for the Trial Court to agree with his findings or not‑‑‑Police was competent to re‑investigate the case even after the submission of the challan in the Court‑‑‑Constitutional petition was dismissed in limine accordingly.

Riaz Hussain and others v. The State 1986 SCMR 1934; Muhammad Arif v. I.G.P., Punjab, Lahore and 3 others 2000 YLR 1960; Muhammad Younas and others v. I.‑G. Police and others 1999 PCr.LJ 163; Sami. Ullah and another v. The State 1999 PCr.LJ 1113; Abdul Aziz v. S.P. (CIA), Sargodha and others PLD 1997 Lah. 24 and Muhammad Younas v. S.H.O., Ghalib Market, Lahore and others 1997 MLD 2063 distinguished.

Muhammad Alam and another v. Additional Secretary to Government of N.W.F.P. and 4 others PLD 1987 SC 103 and Muhammad Yousaf v. The State 2000 SCMR 453 ref.

(b) Constitution of Pakistan (1973)

‑‑‑‑Art.199‑‑‑Criminal Procedure Code (V of 1898), S.156‑‑‑Constitutional jurisdiction‑‑‑Investigation into cognizable cases‑‑‑Independent and impartial investigation is the right of every accused and the complainant party which cannot be taken away through the Constitutional jurisdiction of High Court which is an extraordinary relief‑‑‑Accused persons cannot be deprived of the result of an investigation in which the complainant joined and its result came in their favour.

Muhammad Shan Gul for Petitioner.

P L D 2001 Lahore 479

Before Mian Muhammad Najam‑uz‑Zaman, J

MUHAMMAD ASLAM‑‑‑Petitioner

versus

THE STATE and others‑‑‑Respondents

Criminal Revision No. 100 of 2001, decided on 25th April, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Juvenile Justice System Ordinance (XXII of 2000), S.4(3)‑‑­Criminal Procedure Code (V of 1898), S.439‑‑‑Exclusive jurisdiction of Juvenile Court‑‑-Sessions Judge had declined to transfer the case of the accused to the Juvenile Court on the ground that accused according to the medical report being 18 years of age was not a "child" as defined in S.2(b) of the Juvenile Justice System Ordinance, 2000‑‑‑Two Medical Boards had unanimously observed that the age of the accused was 18 years on the day of examination and when calculated he was found to be about 16‑1/2 years of age on the day of occurrence‑‑‑Case of accused, thus, fell within the definition of "child" of the said Ordinance‑‑‑Impugned order of the Sessions Judge was consequently set aside and the case of accused was directed to be sent to the Juvenile Court concerned for further proceedings‑‑‑Revision petition was allowed accordingly.

Muhammad Umair Mohsin for Petitioner.

Muhammad Rafique Rajpoot for the State.

P L D 2001 Lahore 481

Before Ali Nawaz Chowhan, J

MASKIN and another‑‑‑Petitioners

versus

Mst. BHAG SULTAN and 15 others‑‑‑Respondents

Civil Revisions Nos.54‑D and 209 of 1986, heard on 30th March, 2001.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 52‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.49‑‑‑Custom (Punjab)‑‑‑Shirt Wajib‑ul‑Arz‑‑‑Entry shown in the Shart Wajib‑ul‑Arz reflecting the prevailing custom .in a particular locality and prepared under the instructions of the. Government is admissible in evidence as a prima facie proof regarding the custom recorded therein‑‑‑Such document is prepared by a village official on the basis of the statements of persons possessing interest in the village regarding their rights and customs and it is recorded as an official record of the local custom of the area and is taken as a part of the record of the rights, and is admissible under Art.49 of the Qanun‑e‑Shahadat, 1984.

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

‑‑‑‑S. 52‑‑‑Custom (Punjab)‑‑‑Shirt Wajibul Arz reflected art agreement based on custom pertaining to land classified as Banjar area giving right to the residents of village of grazing their cattle, collecting fuel wood and using natural ponds for their cattle‑‑‑Evidence on record showed that a part of the land in question was sold out by the proprietors which was also purchased by the residents of the village while some portions of the land were improved‑‑­Proprietors had leased out some portions of the land to the Forest Department against 25 years lease and residents of the village were using rest of the land for pasturage, for collecting fuel and for showing water to their cattle‑‑‑Residents of the village filed a representative suit under 0,1, R.8, C.P.C. praying therein that the proprietors of the land be restrained from obstructing them in the exercise of their rights‑‑‑First Appellate Court :ad rightly found that the portion of land which was being used for purposes of pasturage by the residents of village was lawful since antiquity, however, rights of proprietors and non‑proprietors had to be balanced fairly and that rights of non‑cultivators reflected in the Shart Wajib‑ul‑Arz did not in any way efface the proprietary rights of the proprietors‑‑‑First Appellate Court, however, while accepting the rights of the residents of the village allowed them to use their customary right of grazing their cattle, collecting fuel wood and using the pool in a limited area and not the entire land and such area according to the First Appellate Court which comprised 362 Kanals, 19 Marlas (Ghair Mumkim Gar) was sufficient for their purposes and restrained the proprietors from interfering with such rights of the residents in the said 362 Kanals, 19 Marlas of land; whereas the residents had claimed their customary right over an area comprising of 1712 Kanals, 2 Marlas‑‑­Residents and vendees from proprietors being aggrieved‑of the judgment of Appellate Court wherein the area in question was reduced, challenged the decision on the ground that the conditions set in Shart Wajib‑ul‑Arz were not correctly appreciated and thus the representative's suit was liable to be dismissed‑‑‑Held, Shart Wajib‑ul‑Arz had been correctly interpreted by the Appellate Court and the rights of the non‑proprietors of the village about grazing of their cattle, use of water pools and collection of fuel wood had been correctly appreciated by the Appellate Court‑‑‑Appellate Court, however, had failed to explain as to on what basis the area was thought to be sufficient for the purpose‑‑‑High Court, in circumstances, maintained the findings of the Appellate Court with respect to the recognition of the customary rights of the residents of the village based on Shart Wajib‑ul‑Arz and returned the matter to the District Judge for factual determination as to what would be the sufficient area for purposes of pasturage, cattle grazing and the pond area for the needs of residents of the village and gave specific directions to be kept in view by the District Judge.

Kanshi Ram and others v. Muhammad Abdul Rahman Khan and others AIR 1925 Lah. 216 and Aso and others v. Bishan Singh and others AIR 1927 Lah. 130 ref.

Agha Tariq Mehmood for Petitioner.

Bashir Ahmad Ansari, Advocate.

Malik Itaat Hussain for Respondent No. 14.

Date of hearing: 30th March, 2001.

P L D 2001 Lahore 487

Before 1jaz Ahmad Chaudhry, J

THE STATE‑‑‑Appellant

versus

MUHAMMAD ARIF and others‑‑‑Respondents

Criminal Appeal No.353 of 1987, decided on 18th May, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.409/420/468/471/218‑‑‑Prevention of Corruption Act (II of 19471, S.5(2)‑‑‑West Pakistan Foodstuffs (Control) Act (XX of 1958), Ss.3/6‑‑­Criminal Procedure Code (V of 1898), S.417(1)‑‑‑Appeal against acquittal‑‑­Sufficient evidence was available on record against the accused but Trial Court without‑ framing the charge and without affording any opportunity to the prosecution to prove its case acquitted the accused on an inquiry which was not legal‑‑‑Trial Court was not empowered to hold such inquiry and to consider the statement of an Assistant Director Food without recording the same and without affording an opportunity to the prosecution to cross­-examine him‑‑‑Impugned judgment of acquittal was based on flimsy grounds and had been passed by Trial Court against law and facts of the case and the same was not sustainable in law as the prosecution had been deprived of the opportunity to prove the guilt of the accused by producing the evidence which was sufficient to connect the accused. with the commission of the crime‑‑‑Judgment acquitting the accused was set aside in circumstances and the case was remanded to Trial Court for re‑trial in accordance with law giving full opportunity to the prosecution to prove its case against the accused.

Warner Brothers v. Imtiaz and others 2000 PCr.LJ 752; Shaukat Ali v. Rana Muhammad Ashfaq and others 1992 ALD 243 and Zaheer‑ud‑Din v. Khushi Muhammad and 6 others 1998 SCMR 1840 ref.

Muhammad Shan Gul for the State.

Muhammad Iqbal Bhatti for Respondents.

Date of hearing: 14th May, 2001.

P L D 2001 Lahore 492

Before Syed Zahid Hussain, J

ZULFIQAR HUSSAIN SHAH

and another‑‑‑Petitioners

versus

RASHIDA BIBI and 7 others‑‑‑Respondents

Civil Revision No.564‑D of 1990, heard on 10th April, 2001.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S.13‑‑‑Pre‑emption suit‑‑‑Decree having been passed by the Trial Court on 29‑9‑1987 after the target date i.e. 31‑7‑1986 [as laid down in Said Kamal's case PLD 1986 SC 360 and Sardar Ali's case PLD 1988 SC 287] the same was void and without jurisdiction and was liable to be set aside by the High Court in revision.

Said Kamal's case PLD 1986 SC 360 and Sardar Ali's case PLD 1988 SC 287a PLD 1987 Lah. 358 and C. R. No. 821‑D of 1988 applied.

Said Kamal's case PLD 1986 SC 360; 1989 CLC 310; PLD 1989 SC 541; 1988 SCMR 82; Mukhtiar Hussain and others v. Elahi Bakhsh and others 1989 CLC 747 and Malik Muhammad alias Malkoo and others v. Jan Muhammad 1989 CLC 776 ref.

Kanwar Intizar Muhammad Khan for Appellant.

Nemo for Respondents.

Date of hearing: 10th April, 2001.

P L D 2001 Lahore 495

Before Mian Nazir Akhtar, J.

MAZHAR IQBAL ‑‑‑ Petitioner

versus

FALAK NAZ and 2 others‑‑‑Respondents

Writ Petition No.24904 of 2000, decided on 18th December, 2000.

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.9‑‑‑Suit for maintenance by wife‑‑‑Written statement ‑‑‑Purpose‑‑­Defendant, for the purpose of filing a written statement is bound to appear in the Family Court himself and his attendance cannot be dispensed with‑‑­Where the written statement was filed by special attorney of the defendant, the same did not deserve consideration in the eye of law and Court was right in taking the view that the suit remained uncontested.

Khalid Mahmood Syed v. Razi Abbas Bokhari PLD 1979 Lah. 217 and Mst. Saeeda v. Lal Badshah 1981 SCMR 395 distinguished.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑

‑‑‑‑S. 11‑‑‑Recovery of past maintenance‑‑‑Statement of wife that she was Ghair Abad for the last three years was not specifically challenged in cross-­examination and thus would be deemed to have been admitted‑‑‑Wife was rightly found to be entitled to recover past maintenance by the Court, in circumstances.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Filing of such petition by a person having a Special Power of Attorney‑‑‑Special Power of Attorney annexed to the petition merely authorised the Special Attorney to defend and pursue the civil suit filed in the Courts of a specific District and to attend lower as well as higher Courts and apply to Courts and officers for copies of documents etc.‑‑‑Power to attend the Courts merely authorised the attorney to appear on behalf of the petitioner but did not authorise him to engage a counsel and institute a petition in the High Court‑‑‑Such petition filed by an unauthorised person thus merited dismissal.

Ch. Arshad Mahmood for Petitioner.

P L D 2001 Lahore 499

Before Malik Muhammad Qayyum, J

MUHAMMAD KHAN and 8 others‑‑‑Petitioners

versus

MUHAMMAD IQBAL and 6 others‑‑‑Respondents

Civil Revision No. 1148 of 1996, heard on 30th May, 2001.

Oaths Act (X of 1873)‑‑‑

‑‑‑‑Ss. 7 & 13‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑‑­Recording evidence of witnesses without administering oath‑‑‑Effect‑ ‑­Judgment and decree passed by the Trial Court in suit was set aside and case was remanded by Appellate Court on the sole ground that evidence of the witnesses was not recorded after administering the new Oath prescribed by High Court in pursuance of amendment in the Oaths Act, 1873‑‑‑Validity‑‑‑­Mere fact that oath was not administered in accordance with Oath prescribed by the High Court under S.7 of the Oaths Act, 1873 was not sufficient in itself to render the judgment and decree as illegal, but at the most it was an irregularity which could be cured by S.13 of the said Act‑‑‑Appellate Court, in circumstances, had acted with material irregularity in holding that since the evidence of the witnesses was not recorded on new prescribed oath, the trial stood vitiated‑‑‑Judgment and decree passed by Appellate Court was set aside and case was remanded to be decided afresh.

Sajjad Ahmad and another v. The State 1992 SCMR 408 and Zeb‑ul-­Haram v. The State PLD 1991 FSC 1 ref.

Ch. Muhammad Afzal Wahla for Petitioner No.1.

Nemo for Respondents.

Date of hearing: 30th May, 2001.

P L D 2001 Lahore 501

Before Ali Nawaz Chowhan, J

MAPLE LEAF COMPANY‑‑‑Petitioner

versus

ISLAMABAD ELECTRICITY SUPPLY and others-----Respondents

Writ Petition No. 1954 of 2001, decided on 29th June, 2001.

Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)‑‑‑

‑‑‑‑Ss. 3, 7, 45 & 46‑‑‑National Energy Power Regulatory Authority Licensing (Distribution) Rules, 1999, R.3‑‑‑Electricity Act (IX of 1910), S.28‑‑‑Government of Punjab Notification No.US (P)(I&P)4‑35/95, dated 31‑12‑1995‑‑‑Government of Punjab Notification No.US (P)(I&P)4‑37/95, dated 22‑2‑1999‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Petitioner was granted a licence for generation and distribution of electricity by the Provincial Government‑‑‑Allegation of the petitioner was that WAPDA had un-authorisedly taken over its business, although the petitioner had a licence which specified the area for the purpose of supply /distribution of electricity‑‑‑Petitioner had applied to the National Electric Power Regulatory Authority under the new enactments for permission of generating and supplying electricity‑‑‑Said authority had not decided the application so far while Water and Power Development Authority and the petitioners remained arguing with each other on the question of locus standi for supply electricity to some consumers said to be the consumers of the petitioner whereas WAPDA was justifying its own acts‑‑ ‑Question as to the area where the supply could be made by the parties was a question of making of factual inquiry‑‑‑High Court, in circumstances and in view of economic policies of the Government aimed at boosting economic activity in the country for increasing the wealth of the people and for ending the inertia, observed that Government agencies like NEPRA should have clear‑cut policies and apparatus for attending to such disputes so that these were quickly resolved and the economic activity was saved from suffering‑‑‑High Court, therefore, referred the matter to NEPRA with directions that the Authority by using all the powers which it had under the law should resolve the dispute while deciding the fate of the applications of the petitioners after hearing there within a period of four weeks from the date of the judgment of the High Court.

Khaliq‑uz‑Zaman for Petitioner.

Syed Moazzam Ali Rizvi for Respondent No. 1.

Brig. Waseem Zafar Chief Executive IESCO.

Bilal Soofi for WAPDA.

Executive Engineer in person.

P L D 2001 Lahore 506

Before Jawwad S. Khawaja, J

MADINA SUGAR MILLS‑‑‑Petitioner versus

SECRETARY, MINISTRY OF INDUSTRIES

and others‑‑‑Respondents

Writ Petition No. 15212 of 2000, heard on 18th June, 2001.

(a) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)‑‑

‑‑‑‑S. 11‑‑‑Notification dated 2‑10‑1986‑‑‑Exemption from provisions of Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963‑‑‑Expression 'Location Policy' as appearing in Notification regarding exemption‑‑‑Object and scope‑‑‑All industries and areas in the Province were exempted from application of S.3 of Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963, by means of the Notification, except those specified in the Notification itself and as a consequence, border areas, areas prone to flooding and urban areas among other specified locations, were retained within the regulatory ambit of S.3 of Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963, while in the remaining areas of the Province, industries could be set up (subject to certain industry‑wise restrictions) without obtaining the prior permission of the Government ‑‑‑Area-wise restrictions, which find mention in the Notification reflect what is officially termed as the 'Location Policy' of Provincial Government.

(b) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)‑‑

‑‑‑‑S. 11‑‑‑Amending Notification dated 3‑11‑1988‑‑‑Sugar industry, inclusion in Location Policy‑‑‑Purpose‑‑‑Notified Location Policy was made with the object of ensuring that additional sugar manufacturing capacity could be set up in the Province without displacement of cotton crop as the same was considered to be of special significance to the Provincial Government‑‑‑Location Policy set out in the Amending notification, as such represented a legitimate exercise of the executive authority of the Government and was also consistent with objectives of Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963, to ensure the organized and planned growth of industries in the Province.

(c) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)----

‑‑‑‑Ss. 3 & 11‑‑‑Amending Notification dated 3‑11‑1988‑‑‑Vires of para. 2(a) of the Notification‑‑‑Amending Notification dated 3‑11‑1988, was result of sound and objective considerations‑‑‑Contents of para.2(a) of the Notification fall within the policy making domain of the executive authority of the Province which was properly exercised and thus could not be struck down.

(d) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Policy decision of Government‑‑‑High Court not to sit in judgment over the policy decision of the Government once the Court concludes that the process through which such policy decision was arrived at was not open to exception.

(e) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)‑‑

‑‑‑‑Ss. 3 & 11‑‑‑Amending Notification dated 3‑11‑1988‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑ Scope ‑‑‑Vires of para.2(a) of the Notification‑‑‑Location Policy of Government as stated in the Notification relating to sugar industry was not open to review by the High Court.

(f) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)‑‑

‑‑‑‑Ss. 3 & 11‑‑‑Amending Notification dated 3‑11‑1988‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Shifting of sugar trill from one district to another‑‑‑Petitioner made such shifting on the basis of "No‑Objection Certificate" issued by Federal Government and Central Board of Revenue‑‑‑Validity‑‑‑Federal Government and Central Board of Revenue did not have the power nor did they purport to assert any authority or jurisdiction to override the Location Policy set out in the Notification dated 3‑11‑1988 as the same fell within the domain of Provincial Government‑‑?"No‑Objection Certificate" of Central Board of Revenue allowing the petitioner to shift its sugar mill was wholly irrelevant‑‑‑Where the Government had untrammeled authority to relax any of the provisions of the Notification in case of a particular industrial unit or class of units or industries the same presented potential for abuse of such authority‑‑‑High Court directed the Provincial Government to incorporate guidelines in the Notification to ensure objectivity and transparency in the exercise of powers and to put procedures in place, or if such procedure already existed, to ensure compliance therewith, to make sure that any future modifications or amendments in its notified policy were subjected to the rigorous process and deliberation.

Hamid Khan and Zahid Malik for Petitioner.

Maqbool Elahi Malik, A.‑G. for Respondents.

Date of hearing 18th June, 2001.

P L D 2001 Lahore 516

Before Malik Muhammad Qayyum

and Raja Muhammad Sabir, JJ

NATIONAL INVESTMENT TRUST LTD.‑‑--petitioner

versus

WAQAR SAIGAL

and 6 others‑‑‑Respondents

Review Application No.47 of 1996, decided on 14th June, 2001

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

‑‑‑‑O. XLIII, R.3 & O.XXI, R.10‑‑‑Application of O.XLIII, R.3, C.P.C.‑‑­Scope‑‑‑Execution proceedings‑‑‑Notice before presentation of appeal‑‑­Held, in order to attract O.XLIII, R.3, C.P.C. an order should have been passed during the pendency of the suit ‑Execution proceedings being quite distinct and separate from the suit same would not fall within the mischief of O.XLIII, R.3, C.P.C.

The order impugned in the appeal had been passed in an execution petition and not a suit, Order XLIII, Rule 3 of the Code of Civil Procedure had no applicability as is evident from the wording of the provision itself which clearly mentions that in order to attract Rule 3 of Order XLIII, C.P.C. an order should have been passed during the pendency of the suit. The execution proceedings are quite distinct and separate from the suit and therefore, do not fall within the mischief of Rule 3 of Order XLIII of the Code of Civil Procedure.

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

‑‑‑‑O. XXI, R.10‑‑‑Application for execution‑‑‑Decree‑holder had applied for execution of the decree passed against the predecessor‑in‑interest of the respondents‑‑‑Objection petition by the respondents against the attachment of the property was finally decided by the Trial Court which accepted the same‑‑‑Said order being conclusive of the rights of the parties could not be said to be interim or interlocutory in nature as the objection petition did not remain pending after the decision by the Trial Court.

Asadullah Siddiqui for Petitioner.

Nemo for Respondents

P L D 2001 Lahore 518

Before Malik Muhammad Qayyum, J

COLONY THAL TEXTILE MILLS LTD. ‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN and another‑‑‑Respondents

Writ Petitions Nos.3720, 4382 of 1988, 10582 of 1991 and 5972 of 1992, heard on 19th March, 2001.

(a) Pay As You Earn Scheme Act (XXXI of 1973)‑‑‑

‑‑‑‑S. 3‑‑‑Pay as You Earn Scheme Rules, 1973, R.3‑‑‑Repatriation of foreign exchange has to be in the same, financial year‑‑‑If the foreign exchange has not been repatriated it cannot be considered to have been received in Pakistan on account of an entry in the books.

(b) Pay As You Earn Scheme Act (XXXI of 1973)‑‑‑

‑‑‑‑S.4(2)‑‑‑Constitutional petition‑‑‑Failure of importer to repatriate foreign exchange to Pakistan within stipulated time‑‑‑Imposition of penalty‑‑­Validity‑‑‑Penalty cannot be imposed by the Federal Government or the State Bank of Pakistan automatically but the Authority should grant hearing to the person and pass any order under S.4(2) of the Act after applying its mind to the facts of each case‑‑‑Principles.

Pay As You Earn Scheme Act, 1973 by itself does not levy any penalty on a fixed rate but empowers the State Bank of Pakistan to levy penalty and charge interest on the foreign exchange which has not been repatriated up to certain limit.

Two expressions which appear in this section have significance; first of which is "penalty" and the other is "shall be liable to pay". Penalty can only be levied on account of some fault on the part of other party if it can be shown to the satisfaction of the State Bank of Pakistan that the foreign exchange was not repatriated without there being any fault on the part of the importer the penalty cannot be levied inasmuch as there must be some fault on the part of the person concerned before the levy of the penalty. The use of the expression "shall be liable to pay" interest, lends support to the preposition that levy of penalty is discretionary and is not a necessary corollary of the failure to repatriate the exchange.

Levy of penalty was not automatic and specific order has to be passed in this behalf after hearing the person and examining the utility of the circumstances.

The penalty cannot be levied by the Federal Government or the State Bank of Pakistan automatically but the concerned authority should grant hearing to the person and pass any order under section 4(2) of the Act after applying its mind to the facts of each case.

Messrs Murree Brewery v. Naseem 1995 PTD 91 and Messrs Neelam Textile Mills Ltd. v. State Bank of Pakistan and 2 others PLD 1999 Kar. 433 fol.

Ashtar Ausaf Ali for Petitioner

Kh. Saeed‑uz‑Zafar, Dy. A.‑G. for Respondents.

Date of hearing: 19th March, 2001.

P L D 2001 Lahore 521

Before Malik Muhammad Qayyum

and Ghulam Mahmood Qureshi, JJ

HABIB & COMPANY‑‑‑Petitioner

versus

CHIEF CONTROLLER OF PURCHASE, PAKISTAN RAILWAY

HEADQUARTER, LAHORE and another‑‑‑Respondents

Writ Petition No. 304 of 1997decided on 14th June, 2001.

Sale of Goods Act (III of 1930)‑‑‑

‑‑‑‑S. 64‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Agreement of sale of goods was conditionally accepted by the seller in view of a condition stipulated in the agreement that any further devaluation of Pakistani rupee or imposition/increase in taxes/duties after the issuance of purchase order would be at the risk of the purchaser (Railways)‑‑­Purchaser denied the entitlement of the seller for any increase in the price on account of devaluation etc. and objected that Constitutional petition could not be filed to enforce the terms of the contract‑‑‑Validity‑‑‑Devaluation having taken place by virtue of statutory notification issued by the State Bank of Pakistan the seller was entitled to the enhancement in the price‑‑‑High Court, however, observed that Constitutional petition could not succeed in view of the fact that the relationship between the parties arose out of a contract which was not generally enforced in the Constitutional jurisdiction of High Court especially when there were disputed questions of fact‑‑‑Such questions required evidence which could not be recorded in proceedings under Art. 199 of the Constitution.

Muhammad Jamil Arezada and Muhammad Atif Amin for Petitioner.

Aurangzeb Mirza for Respondents.

Date of hearing: 7th June, 2001.

P L D 2001 Lahore 523

Before Nasim Sikandar, J

Syed SHAFQAT HUSSAIN ‑‑‑Petitioner

versus

REGISTRAR, JOINT STOCK COMPANIES, LAHORE and others‑‑‑Respondents

Civil Original No.4 of 2000, heard on 25th May, 2001

(a) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 9(3)‑‑‑Procedure of the Court‑‑‑High Court to follow summary procedure as provided in S.9(3) of the Ordinance.

(b) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 152 & 9(3)‑‑‑Power of Court to rectify Register of Company‑‑­Procedure‑‑‑Allegation of a Promoter‑Director of the company was that by way of calendestine and dubious transaction he was shown to have resigned from the directorship and his shares were transferred to another Director through forged and fabricated transfer deeds and that relevant provisions of the Companies Ordinance, 1984 were also not complied with and Return filed with the Registrar of Companies evidencing change in pattern of shareholding was a result of fraud‑‑‑Validity‑‑‑Case of the aggrieved Director was not free from some difficulties as he had sought restoration of his name in the Register of Members of the Company after resolution of his claim that fraud was played upon him‑‑‑Such‑like controversy, could only be resolved after hearing the parties and permitting them to adduce evidence‑‑‑Allegation of commission of fraud and fabrication of documents made by the aggrieved Director could not be resolved without framing issues and recording of evidence which exercise was not germane to summary proceedings under S.9, Companies Ordinance, 1984‑‑‑Aggrieved Director was therefore, advised by the High Court to approach a Civil Court of competent jurisdiction to get the issues determined and in case of favourable judgment he could always approach the High Court again under S.152 of th­e Ordinance with a similar prayer fbr rectification of the Register of the Company.

Khurshid Ahmed Khan v. Pak Cycle Manufacturing Company Ltd. PLD 1987 Lah. 1; Salauddin Khan v. Al‑Mansoor Ltd. and 2 others PLD 1987 Lah. 569; Sha Mulchand v. Jawahar Mills Ltd. AIR 1953 SC 98; Jawahar Mills v. Sha Mulchand AIR 1951 Mad. 572; Bengal Silk Mills' case AIR 1942 Cal. 461; Akbar Ali Sharif and 2 others v. Syed Jamaluddin and 2 others 1991 MLD 203 and Manzoor Ahmed Bhatti and 4 others v. Haji Noval Khan and 5 others 1986 CLC 2560 ref.

Rizwan Mushtaq for Petitioner.

Qamar Aziz Khan for Respondents.

Dates of hearing: 24th and 25th May, 2001.

P L D 2001 Lahore 527

Before Jawwad S. Khawaja, J

PAKISTAN STEEL PIPELINE‑‑‑Petitioner

versus

DIRECTOR, TRADE ORGANIZATIONS

and others‑‑‑Respondents

Writ Petition No. 13358 of 1999, heard on 9th May, 2001

Trade Organizations Ordinance (XLV of 1961)‑‑‑

‑‑‑‑Ss. 3 & 8‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Amendment, repeal etc. of Memorandum and Articles of Trade Organizations‑‑‑Provisions of S.8, Trade Organizations Ordinance, 1961 empower the Government to direct a Trade Organization, licensed by it, to amend its Memorandum and Articles of Association notwithstanding any disagreement on the part of such Trade Organization‑‑‑Licence under S.3 of the Ordinance is granted subject to such conditions and regulations as the Government may think fit to impose from time to time which shall be binding on the "Organization and shall" if the Federal Government so directs, be incorporated in the Memorandum and Articles of the Association or in one of those documents‑‑‑Trade Organization (Association) therefore, could not, under any legal principle, be allowed to deny the right of the Government to require it to amend its Memorandum and Articles of Association considering that the Organization's own constitutive documents and its licence required it to abide by the directions of the Government in that behalf‑‑‑Directions issued by the Government to the Trade Organization to reduce the annual subscription with other conditions, in circumstances, were eminently reasonable, fair and equitable and would help the causes for which the Organization came into being.

Mian Ijaz Iqbal and others v. Faisalabad Chamber of Commerce and another PLD 1983 Lah. 1 distinguished.

A.K. Dogar for Petitioner

Kh. Saeed‑uz‑Zafar, D.A.‑G and Sultan Mehmood for Respondents

Date of hearing: 9th May, 2001.

P L D 2001 Lahore 533

Before Ali Nawaz Chowhan, J

Capt. (Recd.) NAYYAR ISLAM‑‑‑Petitioner

versus

SENIOR SUPERINTENDENT OF POLICE

and others‑‑‑Respondents

Criminal Miscellaneous No.26‑Q of 2001, decided on 12th July, 2001.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑

‑‑‑‑Ss. 7 & 19(4)‑‑‑Penal Code (XLV of 1860), Ss. 420, 468 & 471‑‑­Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Petition under S.561‑A, Cr.P.C. for cancellation of F. I. R. ‑‑‑Petitioner had obtained loan from Bank and against some payments which he had to make in respect of his loan, he had issued cheques which were dishonored and Bank sought plural actions against him; one of which was through the F.I.R. lodged at the local police station, while the second through filing of suit before the Banking Court under S.7 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Validity‑‑‑Such matters, in view of Ss. 7 & 19(4) of the Act were only referable and triable under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 by a Banking Court and the said Act being a special Act, will eclipse corresponding provisions under the general law which is Pakistan Penal Code‑‑‑High Court accepted the petition under S.561‑A, Cr.P.C. and directed the Police not to take law into its own hands in the future in cases covered by S.7 read with S.19(4) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997‑‑‑Principles.

In the present case the petitioner had obtained loan from the Bank. Against some payments which he had to make in respect of his loan, he had issued cheques. But as these cheques were dishonored, the bank sought plural actions against him‑‑one of which was through the F.I.R. lodged at the local police station, while the second was through filing of suit before the Banking Court under section 7 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.

While lodging the F.I.R., it was said that as the cheques had bounced, prima facie offence under sections 420, 468 and 471, P.P.C. was made out. The police after registering the case started chasing the petitioner who then filed petition under section 561‑A, Cr.P.C. asking for the cancellation of the F.I.R.

The main ground urged before the High Court was that no offence under sections 420, 468 and 471, P.P.C. was made out as this was a banking dispute simpliciter and the Bank had already sought a remedy before the Banking Court for recovery of the loan; that this being a civil liability a criminal action was not envisaged nor was there any fraud committed nor any documents forged for the purposes of cheating. It was also stated that an offence under section 420, P.P.C. was also not made out and that as the dispute was purely of a civil nature, it will be adjudicated upon by the Banking Court already seized of the matter.

Section 19 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 relates to offences which may be triable by a Banking Court and section 19(4) relates to dishonest issuance of dishonored cheques and makes this an offence while prescribing a punishment for the offence.

Such matters, therefore, in view of sections 7 and 19(4) of the Act are only referable and triable under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 by a Banking Court. And as this is special Act, it will eclipse corresponding provisions under the general law, which is the Pakistan Penal Code.

The purpose behind the bestowal of jurisdiction to the Banking Court in such‑like matter is obvious. Because a Banking Court with the powers it has is in a better position to adjudge whether there has been dishonesty in the issuance of the dishonored cheques. The police, therefore, cannot proceed in such‑like matters by itself. The Banking Court is also in a better position to decide whether the matter was purely of a civil nature or besides being one of a civil nature called for punishment prescribed under section 19(4) of the Act.

As the jurisdiction of the police acting under the general law is ousted because of the special law i.e. the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, therefore, proceeding further with the F. I. R. or allowing it to exist will only be a wastage of time and abuse of process.

F.I.R. under reference was not maintainable in law and if at all any offence was made out, the bank shall seek its remedy under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.

High Court accepted the petition under section 561‑A, Cr.P.C. and ordered the cancellation of the F.I.R. in question and directed the police not to take law into its own hands in the future in cases covered by section 7 read with section 19(4) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.

Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 1.22 rel.

Habib Al‑Wahab Al Khairi for Petitioner.

Raja Zafar Khaliq Khan for the Citibank.

Syed Sajjad Husain Shah, A.A.‑G.

P L D 2001 Lahore 539

Before Jawwad S. Khawaja, J

MUGHAL INTERNATIONAL, LAHORE through Partner‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN through Secretary

to Government of Pakistan, Ministry of Commerce, Islamabad and 3 others‑‑‑Respondents

Writ Petition No.6508 of 2001, heard on 25th June, 2001.

Imports and Exports (Control) Act (XXXIX of 1950)‑‑‑

‑‑‑‑S. 3(1)‑‑‑Import Trade and Procedure Order, 2000, pate 6(3). Appendix B, Item 63‑A‑‑‑S.R.O. No.145(1)/01 dated 8‑3‑2001‑‑‑State Bank of Pakistan Circular, dated 16‑3‑2001‑‑‑State Bank of Pakistan Foreign Exchange Control Manual, Chap. 13, para. 35‑‑‑Constitution of Pakistan 1973), Art. 199‑‑‑Constitutional petition‑‑‑Federal Government had included sugar' as Item 63‑A in Appendix B of the Import Trade and Procedure Order, 2000 and as a result, it became possible for persons in Pakistan to import sugar from India‑‑‑Importer entered into contracts with Indian exporters for the import of sugar and for this purpose two Letters of Credits ere established in favour of Indian exporter on 31‑1‑2001‑‑‑Federal Government, by S.R.O. No. 145(I)/O1, dated 8‑3‑2001, omitted 'sugar' from appendix to the Import Trade and Procedure Order, 2000 and in consequence of the said notification State Bank of Pakistan issued a Circular dated 16‑3‑2001 by means of which Banks in Pakistan were directed not to establish Letters of Credit in respect of import of sugar from India and that letters of Credit in this regard, already established, were not to be extended‑‑‑Importer who had already availed extension of Letters of Credit in this behalf before the issuance of the State Bank Circular again applied on 6‑4‑2001 for amendment of Letters of Credit to seek extension of the shipping dates specified therein which was refused by the Bank citing the Circular dated 16‑3‑2001 by the State Bank of Pakistan‑‑‑Validity‑‑‑State Bank Circular specified a rational cut off date which was in consonance with Government Policy as set out in the Import Trade and Procedure Order, 2000 and also ensured that the importers were not prejudiced or put at disadvantage in their dealings with Indian exporters‑‑‑State Bank Circular dated 16‑3‑2001, therefore, could not be faulted‑‑‑Principles.

In the present case the State Bank of Pakistan did not impose any restriction in respect of Letters of Credit, which had been established prior to s Circular or even to extensions which had been granted prior to the date o s Circular. The importer had itself sought and had been allowed extension in the shipping dates of its Letters of Credit. Such extensions were allowed subsequent to Notification 770. No. 145(l)/01 but prior to 16‑3‑2001 when, the State Bank Circular was issued. The Indian exporters were unable to meet the original shipping date and also the extended shipping date. Subsequent to 16‑3‑2001, the importer's desire to accommodate the requirements of the Indian exporters could not be allowed by Banks because of the State Bank Circular.

The aforesaid Circular is eminently reasonable as it enables Pakistani importers to meet their contractual obligations and it also allows banks to adhere to their existing obligations under Letters of Credit opened by them. Importers and their Banks were merely prevented from assuming new commitments by modifying the terms of agreements between contracting parties extending the dates of shipment in Letters of Credit.

The State Bank Circular specifies a rational cut off date, which is in consonance with Government Policy as set out to the Import Trade and Procedure Order and also ensures that Pakistani importers are not prejudiced or put at a disadvantage in their dealings with Indian Foreign Exporters. The circular, as such cannot be faulted.

If it is said that existing Letters of Cr t an be extended subsequent to the State Bank Circular, it would become possible for Pakistani importers to defeat the import policy of the Federal Government set out in the order by agreeing to extensions of L.Cs. for prolonged periods. Government Policy cannot be allowed to be circumvented in this manner.

Reference was also made to Paragraph 35 of Chapter 13 of the State Bank's Foreign Exchange Manual to argue that the State Bank Circular of 16‑3‑2000 was contradictory to the provisions of the Foreign Exchange Manual. The said manual is merely an abridged compendium of various State Bank Circulars. Its provisions, as such, cannot override the express contents of the Circular dated 16‑3‑2000.

A. Razzaq & Co. v. Government of Pakistan and others 2000 PCTLR 309 distinguished.

Muhammad Shahzad Shaukat for Petitioner.

Saeed‑uz‑Zafar, A.A.‑G. for Respondents

Date of hearing: 25th June, 2001.

P L D 2001 Lahore 543

Before Muhammad Farrukh Mahmud, J

Mst. SATTO. MAI‑‑‑Petitioner

versus

MANAGER, A.D. B.P.‑‑‑Respondent

Criminal Miscellaneous No.520/H of 2001, decided on 20th June, 2001

Criminal Procedure Code (V of 1898)

‑‑‑‑S. 491‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss. 81 & 82‑‑­Constitution of Pakistan (1973), Art.9‑‑‑Detention of defaulter loanee‑‑­Habeas corpus petition ‑‑‑Petitioner/loanee was arrested for 10 days but after expiry of said period, instead of releasing him, he was sent to Central Jail by order of the Collector for 30 days‑‑‑Prior to sending the petitioner to jail, neither his statement was recorded nor he was given chance to be heard or to produce surety‑‑‑Petitioner was never produced before the Collector who passed the order of arrest mechanically‑‑‑Validity‑‑‑Liberty of a person was the most valuable right guaranteed by the Constitution which was to be jealously guarded‑‑‑Authorities had violated the provisions of law as envisaged by S.81 of West Pakistan Land Revenue Act, 1967 and the warrants issued under S.82(5) of said Act had been issued mechanically only to hoodwink the law‑‑‑Order sending the petitioner to the jail for 30 days passed by the Collector in exercise of his powers under S.82(5) of West Pakistan Land Revenue Act, 1967, was set aside by the High Court with direction to release him forthwith.

Sarwar Khalil Samdani for Petitioner.

Abdul Razzaq Raja for Respondent

P L D 2001 Lahore 545

Before Zafar Pasha Chaudhary, J

ZULFIQAR AHMAD‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Revision No.415 of 2001, heard on 2nd July, 2001.

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

‑‑‑‑Ss. 514 & 498‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Forfeiture of surety bond‑‑‑Petitioner had stood surety for the appearance of accused in Court on his having been granted interim pre‑arrest bail in the case on 2‑4‑2001 till 7‑4‑2001‑‑‑Accused appeared in Court on 7‑4‑2001, but the Presiding Officer being on leave, the matter was adjourned to 12‑4‑2001 and interim bail was extended till then‑‑‑Accused did not turn up in Court on 12‑4‑2001 and thereafter absconded with the result that the petitioner by means of the impugned order was burdened to pay the surety amount‑‑‑Surety bond being a contract between the surety and the Court that in case the accused defaulted in appearance the surety would be responsible only for the date for which the surety bond was executed; the petitioner was not liable to produce the accused in the Court on any subsequent date‑‑‑Order passed by Sessions Court directing the petitioner to deposit the surety amount was not lawful in circumstances and the same was set aside‑‑‑Revision petition was allowed accordingly.

Sardar Muhammad v. The State 1998 PCr.LJ 236 ref.

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

‑‑Ss. 514 & 498‑‑‑Forfeiture of bond‑‑‑Procedure ‑Amendment required in the printed Form of surety bond‑‑‑When the interim bail already granted up to a certain date is extended then care should be taken that the accused shall furnish bond up to that date or suitable amendment be incorporated in the surety bond that the sureties will be responsible to produce the accused in Court on next date of hearing or on any other subsequent date fixed till the final disposal of the matter.

High Court observed that ordinarily what happens is that an interim bail is granted up to a certain date, thereafter, if the same is extended then care should be taken that accused shall furnish bond up to that date or suitable amendment be incorporated in the bond which is obtained from the sureties that they will be responsible to produce the accused on next date of hearing or on any date in the bail matter fixed subsequent to that date. So far as the present pro forma of Surety Deed is concerned, it provides that the surety will be responsible for production of the accused on one date only which is provided next after grant of ad interim bail. On account of this defect the Zamanat Nama which is available in printed form is accepted in routine without realizing the consequences as to what will be situation, in case the matter is adjourned to some other date and the bail is extended further. The printed Form therefore, should incorporate a covenant that the surety shall be bound till the disposal of application for pre‑arrest bail or in the alternative the surety should give an undertaking to produce the accused till then. Necessary amendment may be incorporated in the Zamanat Nama and in future care should be taken by the Courts below in this behalf.

Arshad Iqbal Tarar for Petitioner. Syed Fida Hussain Shah for the State.

Date of hearing: 2nd July, 2001.

P L D 2001 Peshawar 1

Before Sardar Muhammad Raza, C. J.

and Tariq Pervez, J

MUTABER KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.332 of 1998, decided on 30th May, 2000.

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

----Ss. 302/34, 364, 201, 449, 3~4, 335/336, 337-A(iii), 382 & 411--­Appreciation of evidence--- Eye-witness who was herself seriously injured in the occurrence was its most truthful and natural witness---Accused being known to family, his identity was not open, to any doubt---Ocular testimony qua the murder of four children was by itself sufficient for conviction of accused, which was corroborated by the motive, admitted and further explained by the accused---Discovery of the dead body of the complainant's husband on the pointation of accused had also not only proved the ocular testimony, but had reinforced his confessional statement---Recovery of incriminating articles from the accused had further strengthened the prosecution case against him---Conviction and sentences of accused were upheld in circumstances.

(b) Confession-

---- Retracted confession, even as a solitary evidence, can be made the basis of conviction, provided it is supported by Ether circumstances and rings true.

Tariq Khan Kakar for Appellant.

Abdur Rauf Gandapur for the State.

P L D 2001 Peshawar 7

Before Mrs. Khalida Rachid

and Shah Jehan Khan, JJ

Messrs LUCKY CEMENT LIMITED---Petitioner

Versus

THE CENTRAL BOARD OF REVENUE

and others---Respondents

Writ Petition No.583 of 1995, decided on 31st February, 2000.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Term "person"--­Connotation---Term "person" as explained in cl.(5) of Art.199 of the Constitution includes any body politic or corporate, any authority of or under the control of Federal Government or of a Provincial Government--- High Court under the provisions of Art.199 of the Constitution is vested with powers to issue a writ against a person performing functions in the Province in connection with the affairs of the Federation or Provinces or local authority.

(b) Constitution of Pakistan (1973)---

----Art. 199(5)---Term "person"---Central Board of Revenue Government of Pakistan was included in the term "person" as envisaged in Art. 199(5) of the Constitution---Central Board of Revenue was set up by the Central Government for whole of Pakistan, which performed functions in relation to the affairs of the Federal Government in all the Provinces---Central Board of Revenue was a person, body or authority within the meaning of Art. 199(5) of the Constitution.

(c) Constitution of Pakistan (1973)--

----Art. 199---Constitutional jurisdiction of High Court---Territorial jurisdiction---Scope---Circular passed by Central Board of Revenue---Any order passed or proceedings conducted or action taken by the Authorities in relation to any person in any of the Provinces of Pakistan could give the High Court of Province, jurisdiction to hear the case in whose territory, the order, proceedings or action would affect such a person.

1985 SCMR 758; Asghar Hussain v. Election Commission of Pakistan PLD 1968 SC 387; Flying Kraft Mills (Pvt.) Ltd. v. Central Board of Revenue, Islamabad 1997 SCMR 1874; Ghulam Haider Badini v. Government of Pakistan through Ministry of Information and Broadcasting and others 1995 CLC 1027 and Nawabzada Muhammad Sahahbuddin v. Chairman, Federal Land Commission 1996 CLC 539 ref.

(d) Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), S.20---Constitutional petition---Territorial jurisdiction of High Court---Scope---Appropriate writ under the provisions of S.20, C.P.C. can be claimed from High Court within the territorial limits of which the cause of action wholly or in part has arisen.

(e) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition ---Locus poenitentiae, rule of ---­Applicability ---Petitioner entered into agreement of import of machinery from abroad on the basis of "No-Objection Certificate (N.O.C.)"issued by the Authorities---Authorities recalled the "No-Objection Certificate", after the machinery had reached Pakistan-----Contention of the Authorities was that they could recall the N.O.C. on the basis of rule of locus poenitentiae--­Validity---Authority empowered to issue an order had the power to, recall or cancel that order until the same had been carried into effect---Where the order had not taken into effect only then power to rescind could be exercised and once the order becomes operative, the same could not be withdrawn--­Acting on the No-Objection Certificate issued by the Authorities the petitioner opened Letter of Credit and entered into agreement with the foreign supplier, some of the machinery had reached Pakistan and the N.O.C. had been carried into effect---Locus poenitentiae was not left with the Authorities to initiate actions against the petitioners in circumstances.

Shahnaz v. The Crown PLD 1956 FC 46 and Lt.-Col. Bhattacharya v. The State PLD 1964 SC 503 ref.

(f) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Natural justice, principles of--­ Applicability ---Petitoners acting on "No-Objection Certificate (N.O.C.)" obtained from the Competent Authority, opened Letter of Credit and entered into agreement for supply of goods from foreign country---While machinery so imported had reached the country and was about to be installed, the No-Objection Certificates were set at naught by an office memorandum issued by the Authorities---Rescinding of the N.O.C. in circumstances was against the principles of natural justice.

(g) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Audi alteram partem, rule of--­Applicability---Petitioner imported duty-free machinery after obtaining "No­Objection Certificate (N.O.C.)" from the Authorities---Authorities without affording reasonable opportunity to the petitioners recalled the N.O.C. and imposed duty/taxes on the import of the machinery---Validity---Principle of audi alteram partem was not followed in the case.

Chief Commissioner v. Mrs. Dina Sohrlb Katrak PLD 1959 SC (Pak.) 45 ref.

(h) Estoppel-

----Promissory.. ---Object arid scope---Where the Government Ministries/ Departments, while issuing the "No-Objection Certificate (N.O.C.)" had promised and, given undertaking that machinery imported would be exempted from customs duty and sales tax, Government could not turn around and claim duties for the machinery so imported---Such assurances and understandings on the principle of promissory estoppel were binding on the Government and its functionaries---Promissory estoppel being an equitable principle evolved by the Courts for doing justice, Government was no exception.

M.P. Mills v. State of U.P. AIR 1979 SC 621 and Union of India v. Anglo-Afghan Agencies AIR 1968 SC 718 ref.

(i) Customs Act (IV of 1969)--

----S. 19---Sales Tax Act (VII of 1990), S.13(1)---Notification S.R.O, No.484(1)/92, dated 14-5-1992 ---Notification S.R.O. No.978(1)/95, dated 4-10-1995---Constitution of Pakistan (1973), Art.199 ---Constitutional petition ---Exemption, withdrawal of ---Petitioner, on the basis of No­-objection Certificate (N.O.C.) imported, machinery for its cement plant--­Authorities, after the import of machinery, recalled the exemptions given in the N.O.C. and refused to extend the benefits of the Notifications S.R.O. No. 484(1)/92, dated 14-5-1992 and S.R.O. No.978(1)/95, dated 4-10-1995---Validity---Where the machinery was imported through Letters of Credit opened on 5-12-1993 and 31-5-1994, and the machinery reached Pakistan after 31-6-1995, :the petitioner was entitled to exemptions claimed under the Notifications S.R.O. No.484(1)/92, dated 14-5-1992 and S.R.O. No.978(1)/95 dated 4-10-1995.

M. Sardar Khan for Petitioner.

Abdul Rauf Rohila for Respondents.

Dates of hearing: 10th, 16th, 18th and 23rd November, 1999

P L D 2001 Peshawar 27

Before Mian Shakirullah Jan

and Talat Qayum Qureshi, JJ

ABDUL AZIZ alias AZIZA

and 3 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.48 of 1995, decided on 25th May, 2000.

Penal Code (XLV of 1860)---

----Ss. 302 & 307---Appreciation of evidence ---F.I.R. had been lodged with a delay of eight hours after consultation and delibertions---Occurrence was unseen---Site plan had not supported the prosecution version---No report was available on record regarding the calibre of the crime empties recovered from the spot or to verify if the same were of one weapon or of different weapons---Ocular testimony was in conflict with medical evidence---Motive as set forth by the prosecution was not proved and the same was shrouded in mystery---Prosecution case was full of doubts and contradictions---Accused were acquitted in circumstances.

Abdullah Jan Mirza for Appellants.

Muhammad Ayub Khan, A.A.-G. for the State.

Mushtaq Ali Tahirkheli for the Complainant.

Dates of hearing: 26th April and 9th May, 2000.

P L D 2001 Peshawar 36

Sardar Muhammad Raza, C. J. and Tariq Parvez, J

RAZI KHAN and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 157 of 1996, decided on 8th June, 2000

Penal Lode (XLV of 1860)---

----Ss.302/34---Appreciation of evidence ---Abscondance of accused ---Effect-­Motive although was alleged by the prosecution, yet it was not proved---Eye witnesses had contradicted themselves on material particulars ---F.I.R. did not appear to have been lodged by any body at the Police Station and the Investigating Officer had come to the spot only when informed by somebody--..Occurrence was an unseen event and had taken place in the dark hours of morning---Accused had been involved in the case either because of enmity of the complainant or due to suspicion---Although a single doubt was sufficient for acquittal of accused, but in the present occurrence the entire case was doubtful ---Abscondence of accused for nine to ten months by itself could not be used against the accused in the absence of strong pieces of evidence connecting them with the commission of the offence ---Accsued were acquitted in circumstances.

Khawaja Muhammad Khan and Saleem Dil Khan for Appellants.

Rashid, A.A.-G. for the State.

Adil for the Complainant.

7th and 8th June, 2000.

P L D 2001 Peshawar 40

Before Muhammad Qaim Jan Khan, J

MUHAMMAD YOUSAF KHAN---Petitioner

Versus

KHAN SARDAR and others---Respondents

Civil Revision No.83 of 1999, decided on 14th November, 2000.

North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Suit for pre-emption---Making of Talbs---Talb-i-Muwathibat and Talb-i-Ishhad---No details and names of witnesses were required to be given in the plaint---Neither notice of Talb-i-Muwathibat had been cogently proved nor there was any evidence with regard to Talb-i-Ishhad and no official from post office had been produced---Receipts must have been proved through some responsible official of the Post Office Department which was not done---Plaintiff having failed to make "Talbs" in accordance with the spirit of S.13 of North-West Frontier Province Pre-emption Act, 1987, Courts below had rightly dismissed the claim of plaintiff.

Dost Muhammad Khan for Petitioner.

Sardar Allah Nawaz Khan for Respondents.

Date of hearing: 14th November, 2000.

P L D 2001 Peshawar 42

Before Shah Jehan Khan

aid Qazi Elisanullah Qureshi, JJ

WAHEED-UR-REHMAN --- Petitioner

Versus

MUHAMMAD ASHRAF and 2 others---Respondents

Writ Petition No.707 of 2000, decided on 3rd October, 2000.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(6)---Tentative rent order--Striking off defence of tenant---Rent Controller after the pleadings had to pass rent deposit order before framing of issues and adjourn the case so as to enable the tenant to furnish proof of rent deposit in Court on next date of hearing---Tenant, if complied the rent deposit order, the Rent Controller would frame. issues in the light of the pleadings and record the evidence of the parties---If the tenant had failed to comply with the rent deposit order, his defence would be struck off and he would be ordered to vacate the premises in question forthwith and hand over the vacant possession of premises to the landlord.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 2(c)(i) & 13---Denial of relationship of landlord and tenant between the parties---Effect---Rent Controller, if convinced that the denial was genuine, based on strong footing and not flimsy and frivolous, would frame a preliminary issue whether the relationship of landlord and tenant existed between the parties or not---Rent Controller was not supposed to frame other issues extracting from the pleadings nor could pass rent deposit order nor proceed on merits of the case because on account of denial of relationship of landlord and tenant, the Rent Controller had ceased to take cognizance and exercise jurisdiction to act as Rent Controller, unless and until the preliminary issue was decided in negative against the tenant---Rent Controller would only be Rent Controller when relationship of landlord and tenant existed between the parties---If after framing of preliminary issue and completion of evidence, it was established that the tenant denied the title of landlord contumaciously no useful purpose would be served in proceeding further under S.13 of West Pakistan Urban Rent Restriction Ordinance, 1959 and the Rent Controller could pass ejectment order straightaway without framing issues and recording evidence if ejectment of tenant was sought on the ground of default in payment of rent.

1984 CLC 1506; PLD 1986 Quetta 284; PLD 1996 Lah. 252 and PLD 1996 Pesh. 8 ref.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 2(c)(i) & 13 ---Tenant, a mortgagee ---Relationship of landlord and tenant---Relationship of landlord and tenant was to be seen and adjudicated upon and the dispute about relationship of landlord and tenant between the owner and the occupant, was out of purview of the Rent Controller and would not come within his domain---Not the ownership, but relationship would matter in the case where it was proved on record that tenant was in occupation of the property as a mortgagee ---Remedy available with the landlord in case of mortgage was to file a suit for possession before Civil Court.

(d) Constitution of Pakistan (1973)-

----Art. 199---Constitutional jurisdiction, exercise of---Courts below having failed to thrash out the correct conclusion from the evidence and also to apply their mind judiciously with prudence, concurrent judgments of Courts below were set aside by High Court in exercise of its Constitutional jurisdiction.

Kifayatullah Khan for Petitioner.

Muhammad Iqbal Khan Mohmand for Respondents.

Date of hearing:.3rd October, 2000.

P L D 2001 Peshawar 47

Before Shahzad Akbar Khan, J

SAADULLAH KHAN and 2 others---Petitioners

Versus

Sheikh GHULAM QASIM through

Legal Heirs and others---Respondents

Civil Revision No.45 of 1999, decided on 15th June, 2000.

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

----O. XX, R. 1, Ss.152_114 & O.XLVII, R.1---Altering the judgment--­Once the judgment was signed, dated and pronounced, it would not afterwards be altered or added to save as provided by S.152, C.P.C. or a review---After signing and pronouncing the judgment, the Court would be rendered functus officio---Only two exceptions to the rule were proceedings under S.114 read with O.XLVII and S.152, C.P.C.

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

----S. 148 & O.XX, R.14---North-West Frontier Province Pre-emption Act (X 'of 1987), S.13---Pre-emption suit---Extension of time for deposit of pre­emption price---Court which had passed a decree in pre-emption suit pursuant to the provision of O.XX, R.14, C.P.C. and fixed time for the deposit of the pre-emption price and the time so fixed expired, it had no power to extend the time as S.148, C.P.C. did not apply to cases where the final judgment was pronounced as the Court would become functus officio and cease to have jurisdiction over the lis.

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

----S. 148 & O.XX, R.3---Enlargement of time---Discretion of Court--­Words "from time to time" used in S.148, C.P.C. had suggested that a Court could extend time as long as it continued to have jurisdiction over the matter---Section 148; C.P.C. would only apply to acts preliminary to or during the course of trial i.e. prior to the final order---Extension "from time to time" could never be ordered in a finally decided matter as interference with a final judgment or decree was strictly controlled by OAX, R.3, C.P.C.

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

----S. 151 & O. XX, R: 14---North-West Frontier Province Pre-emption Act (X of 1987), S.13--Pre-emption suit---Extension of time for deposit of pre-emption price---Provision of S.151, C. P. C. could not be utilised for the extension of time in pre-emption case as non-payment of pre-emption price entailed the mandatory penal consequence of the dismissal of suit as envisaged by OAX, R.14, C.P.C.---Even the omission to mention the condition by the Trial Court that in case of non-payment of the pre-emption money within the specified time, the suit would stand dismissed, was not fatal.

Fazal Qadeem v. Amin Khan 1995 SCMR 1426; Sheikh Muhammad Sadiq v. Bostan and others PLD 1979 SC 917; Naguba Apa v. Namdev AIR 1954 SC 50 and Keshav Yeshwant Koli v. Krishna Balaji Mahar and others AIR 1939 Nag. 107 ref.

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

----S. 115---Revisional jurisdiction, exercise of---Findings, judgments and decrees of both Courts below being erroneous and not warranted by law, were set aside by High Court, in exercise of its revisional jurisdiction.

Khawaja Nawab Khan for Petitioner.

Haji Saadullah Khan Miankhel for Respondents.

Date of hearing: 15th June, 2000.

P L D 2001 Peshawar 54

Before Talat Qayum Qureshi, J

Mst. SHAMERO---Petitioner

Versus

SARDARAZ KHAN and 8 others---Respondents

Civil Review Petition No.24 of 1999 in Civil Revision No.514 of 1993. decided on 20th October, 2000.

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

----S. 115---Revisional jurisdiction, exercise of---Revision was a matter between the higher and the subordinate Court and the right to move a petition in that respect by the petitioner was merely a privilege---Provision of 5.115, C.P.C. did not confer any substantive right to the petitioner, but would apply to the cases involving the illegal assumption, non-exercise or irregular exercise of jurisdiction and same could not be invoked for conclusion of law or fact which did not in any way affect the jurisdiction of the Court.

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

----S. 115---Revisional jurisdiction, exercise of---High Court could suo motu interfere where subordinate Court had exercised jurisdiction not vested in it; or failed to exercise jurisdiction vested in it, or acted in exercise of its jurisdiction illegally or with material irregularity---Where such conditions were not satisfied, High Court would not interfere in its revisional jurisdiction under S.115, C.P.C.--It was only the satisfaction of the revisional Court regarding the proper exercise of jurisdiction or exercise of jurisdictional illegality or with material irregularity by the subordinate Courts when interference could be made.

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

----S. 115---Revision petition---Petitioner despite having been served, remained absent---Court, in circumstances, had two options, either to dismiss the revision for non-prosecution or to take agony of going through the record of Courts below to ascertain as to whether any jurisdictional errors existed in the judgments and decrees of the Courts below---Courts by taking the second option decided revision on merits---Contention that revision petition decided in the absence of the petitioner should be presumed to have been dismissed in default and should be restored was repelled.

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

----S. XLVII, R.1---Review of order or decree---Review of an order or decree, could be sought on three grounds viz. discovery of new and important matter or evidence which after exercise of due diligence was not within knowledge of applicant or could not be produced by him at the time the decree was passed or order made; on account of some mistake or error apparent on the record and for any other sufficient reason.

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

----0. XLVII, R.1---Review proceedings---Review proceedings could not partake re7hearing of a decided case---If the Court had taken conscious and deliberate decision of a point of law or fact while disposing of petition or an appeal, review of such judgment or order could not be obtained on the ground that the Court took an erroneous view or that another view or re­consideration was possible.

Abdul Ghaffar and others v. Asghar Ali and others PLD 1998 SC 363 and Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1997 SC 865 ref.

Mian Muhammad Younis Shah for Petitioner.

Haji Muhammad Zahir Shah for Respondents

Date of hearing: 20th October, 2000.

P L D 2001 Peshawar 58

Before shah Jehan Khan

and. Qazi Ihsanullah Qureshi, JJ

NUSRAT SHAH---Appellant

Versus

JIAD SHAH and another---Respondents

Criminal Appeal No. 320 of 1997, heard on 15th November, 2000.

(a) Penal Code (XLV of 1860)

----Ss. 302/311---Appreciation of evidence---Occurrence had taken place inside the joint house of deceased and the accused who were brothers---Among all members of house accused's wife and parents of deceased had not deposed against the accused due to their close relations with the accused--­Only widow of the deceased had given a clear breast version of the occurrence and her deposition which got material corroboration, could not be challenged during cross-examination---Accused had failed to establish the defence set up by him at the trial---Accused had neither examined himself on oath nor had produced any evidence in defence---Accused who had brutally murdered his real brother living with him in the same house on a petty dispute, did not deserve any leniency and was liable to be punished severely---Accused was convicted and sentenced accordingly.

Muhammad Iqbal v. The State 1999 SCMR 403; Khalid Nawaz v. The State 1999 SCMR 933 and Muhammad Mushtaq v. The State 1999 PCr.LJ 2064 ref.

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

----S. 311---Compounding of right of Qisas in Qatl-i-Amd---Where some of the adult and heirs of the deceased compounded the Qisas against Badle Sulah or waiver of their right of Qisas with or without compensation, but some of the legal heirs did not compound or waive their right of Qisas, the Court had to keep in view the principle of "Fasad-fil-Arz" which included the conduct of offender being previous convict, his habitualness or being a professional offender and also the brutal manner in which offence was committed and. should .punish the offender up to fourteen years as Ta'zir.

Mian Mohibullah for Appellant.

Abdur Rauf Gaqdapur for the State.

Date of hearing: 15th November. 20.00.

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P L D 2001 Peshawar 80

Before Sardar Muhammad Raza, C. J., Mrs. Khalida Rachid and Shah Jehan Khan, JJ

AFTAB AHMED KHAN SHERPAO, EX-CHIEF MINISTER

OF N.-W.F.P.---Appellant

Versus

THE STATE---Respondent

Ehtesab Appeal No. l of 2000, decided on 18th July, 2000

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

----S. 423---Ehtesab Ordinance (CXI of 1996), Ss. 3 & 4---Appeal--­Presence of accused before Court---Accused has the right of audience through counsel in his appeal against conviction, but he has no such right in the appeal filed for enhancement of his sentence, as the eventuality of enhancement requires the appearance of the accused in person.

(b) Ehtesab Ordinance (CXI of 1996)---

----Ss.3 & 4---Appreciation of evidence---Corruption and corrupt practices--­Proof---Necessary ingredients forming the offence of corruption or corrupt practices had not been proved in the case---Accused being the Chief Minister after having examined the whole summary, had agreed with the proposal of the Chief Secretary and made the allotments---Mere irregularities in allotment of plots which were even not proved and mere bypassing of some one in correspondence might be dubbed as irregularities but could not attract criminal liability unless criminal mens rea, dishonest, monetary advantage extended or, gained, was distinctly and independently proved which was lacking in the case---No dishonest and mala fide violation of any Rules and Regulations by the accused had been shown by the prosecution---Accused had not gained any pecuniary advantage through allotment of plots--­Allottees having not been proved on the record to be either associates or favourites of the accused, they could not be said to have been extended dishonest pecuniary advantage by the accused---Sale of plots by the accused was not tantamount to bringing loss to the exchequer, rather a considerable sum was gained against each plot---Accused were acquitted in circumstances.

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

----S. 32---Ehtesab Ordinance (CXI of 1996), Ss. 3 & 4---Allegation of corruption and corrupt practices ---Appeal for enhancement of sentence—­Maintainability ---Advocate-General and Prosecutor-General ---Respective duties and functions---Points of distinctiveness ---Appeal by State--­Functionary to file such appeal---Parties aggrieved in a criminal trial generally are either the accused or the State---State is always represented by the Advocate-General and not by the Prosecutor-General---Appeal filed by the Prosecutor-General is not an appeal by the State---Advocate-General and Prosecutor-General are not synonymous by any stretch of interpretation---Job of a Prosecutor is to achieve success in the shape of conviction while that of State represented by Advocate-General is to do justice between both the parties and not necessarily to seek conviction if not warranted by law or by circumstances.

(d) Ehtesab Ordinance (CXI of 1996)---

----Ss. 3 & 4---National Accountability Bureau Ordinance (XVIII of 1999), S.32---Allegation of corruption and corrupt practices---Appeal for enhancement of sentence---Appeal had been filed by the Prosecutor-General and not by the Advocate-General and the same, therefore, was not an appeal by the State---Despite amendment through Ordinance IV of 2000 the appeal was not maintainable, because the Prosecutor-General could not file the appeal unless he was so directed by the National Accountability Bureau and no such permission was available on the file---Appeal .was also barred by time---Appeal was not maintainable in circumstances and the same was dismissed accordingly.

(e) Words and phrases--

------"Advocate-General" and "Prosecutor-General"---Distinction---Advocate­-General and Prosecutor-General are not synonymous by any stretch of interpretation---Job of a Prosecutor is to achieve success in the shape of conviction while that of State represented by Advocate-General is to do justice between both the parties and not necessarily to seek conviction if not warranted by law or by circumstances.

Syed Zafar Abbas Zaidi and Mian Fazal Wahab for Appellant.

Abdul Sattar Khan, Addl. A.-G. and Abdul Samad Khan for the State.

Dates of hearing: 15th, 19th and 20th June, 2000.

P L D 2001 Peshawar 89

Before Sardar Muhammad Raza, C J

SANA ULLAH KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.25 of 2000, decided on 21st May, 2001.

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

----S. 195---Prosecution for contempt of lawful authority of public servant--­Provisions of S.195, Cr.P.C. are mandatory in nature.

Plain reading of section 195, Cr.P.C. would indicate that it starts with negative words as well as using the word "shall". Any section commencing with negative terminology, is always mandatory' over and above the fact that the word "shall" followed the negative expression in addition.

1993 PCr.LJ 767; 1997 MLD 2097 and 1998 PCr.Lt 87 ref.

(b) Interpretation of statutes---

---- Any provision of an enactment commencing with negative terminology, is always mandatory over and above the fact that the 'word "shall" followed the negative expression in addition.

1993 PCr.LJ 767; 1997 MLD 2097 and 1998 PCr.LJ 87 ref.

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

----S. 186---Criminal Procedure Code (V of 1898), Ss. 173 & 200--­Obstructing public servant in discharge of public functions ---Procedure--­Complainant in case of offence under S.186, P.P.C. was bound to file a complaint under S.200, Cr.P.C. and the matter could not be taken cognizance of either by the S.H.O. or by the Trial Court and a challan under S.173, Cr.P.C. could not at all be equated with a complaint under S,200, Cr.P.C.

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

----S.249-A---Rejection of application for acquittal of accused ---Effect--­Court if suffered from total lack of jurisdiction, any proceedings initiated by it, would be void ab initio, no matter if somebody surrendered to its jurisdiction or not---No estoppel exists in law and that too when the liberty of a person was involved---Contention that the accused, after the rejection of his application under S.249-A, Cr.P.C. having completely surrendered to the jurisdiction of the Trial Court, was barred to challenge the same in any manner, was repelled in circumstances.

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

----Ss. 439, 561-A & 195---Penal Code (XLV of 1860), S.186---Quashing of proceedings---Only normal and genuine proceedings would be protected and could not be interfered with by High Court under its revisional or- inherent jurisdiction---Proceedings which were neither normal nor prima facie genuine, being in utter violation of mandatory provisions of S.195, Cr.P.C., were absolutely void---High Court accepting petition quashed the said proceedings declaring the same completely without jurisdiction and void ab initio.

PLD 1992 SC 353 and 1996 SCMR 839 ref.

Mushtaq Ali Tahirkheli for Petitioner.

Muhammad Ayub Khan, Asstt. A.-G. for the State.

Fazle Gal for the Complainant.

Date of hearing: 21st May, 2001.

P L D 2001 Peshawar 92

Before Nasirul Mulk and ljaz-ul-Hassan, JJ

Syed MUZAMIL SHAH and 27 others---Petitioners

Versus

DEPUTY LAND COMMISSIONER, MANSEHRA

and 3 others---Respondents

Writ Petition No.299, 302, 303 of 1997, 467 of 1998 and 96 of 2000, decided on 12th April, 2001.

(a) Land Reforms Act (II of 1977)---

----S. 7(5)---Holdings and resumption of excess land ---Determination--­Decisive steps taken in proceedings under the Land Reforms Laws before 23-3-1990---Effect---Where such steps were taken when decision in Qazilbash Waqf's case reported as PLD 1990 SC 99, became effective, proceedings under Land Reforms Laws would continue and taken to the legal conclusion and remained unaffected by the decision in Qazilbash Waqf's case---Decisive steps might be filing of declaration form by declarants or when no such declaration was made, determination by the Authorities under Land Reforms Laws, that a person's holding was in excess of the limits prescribed by the Land Reforms Laws, or order of resumption of excess land made by the Authorities.

Qazilbash Waqf v. Chief Land Commissioner PLD 1990 SC 99 ref.

(b) Land Reforms Act (II of 1977)---

----S. 7(5)---Determining of holding and resumption of excess land---Deputy Land Commissioner, jurisdiction of---Scope---District in which lands were situated and record pertaining to the proceedings under Land Reforms Laws were maintained Authorities of such district had jurisdiction to proceed under S.7(5) of Land Reforms Act, 1977.

(c) Land Reforms Act (II of 1977)-----

----- S. 7(5)---West Pakistan Land Reforms Regulation, 1959 [M.L.R. No.64]---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Determination of holding and resumption of excess land--Land situated in Kaghan valley---Issuance of notice under S.7(5) of Land Reforms Act, 1977---Decision of Supreme Court in Qazilbash Waqf's case PLD 1990 SC 99---Effect---Petitioners had filed their declaration under West Pakistan Land Reforms Regulation, 1959, in the year 1959 and the land was ordered to be resumed in the same year---Resumption proceedings were suspended when on 5-7-1965 the produce index units were reduced by the Authorities declaring the owners of Kaghan Valley to be unaffected---Such order was set aside by the Commissioner, Federal Land Commission in year 1976 and the old resumption proceedings were revived---Petitioners had made their declaration and order of resumption was passed in the year 1959--­Subsequently in the year 1989 in pursuance to the decision of Supreme Court of 1984 (1984 SCMR 669) "decisive steps" had been taken by the petitioners and the Authorities under Land Reforms Laws---Implementation of orders passed by the Authorities as affirmed by Supreme Court only remained to be implemented under "self-executory provisions" of Land Reforms Laws--­Proceedings against the petitioners were not affected by the decision in Qazilbash Waqf's case PLD 1990 SC 99---Orders passed by the Authorities for implementation of earlier orders for the resumption of lands owned by the petitioners under the Land Reforms Laws were validly passed--­Constitutional petition was dismissed accordingly.

Qazilbash Waqf v. Chief Land Commissioner PLD 1990 SC 99; Government of Pakistan v. Qazalbash Waqf 1993 SCMR 1697; Sardar Ali v. Muhammad Ali PLD 1988 SC 287; Chief Land Commissioner v. Chief Administrator of Auqaf PLD 1988 SC 132; Muhammad Jaffar Khan Laghari v. Balochistan Land Commission 1997 MLD 1934; Chief Administrator of Auqaf v. Federal Land Commission PLD 1994 Lah. 50; Azra Parveen v. Additional Deputy Commissioner 2000 CLC 654 and Federal Land Commission v. Syed Rehmat Shah 1984 SCMR 669 ref.

M.H. Lughmani and Wasim Sajjad for Appellants (in W.P.No.96 of 2000)

Al-Haj Sardar Bahadur Khan, Shaukat Ali Khan, Abdul Shakoor Khan and Fida Muhammad Khan for Respondents.

Muhammad Ayub Khan, A.A.-G. for the Government.

Dates of hearing: 17 and 18 January, 2001

P L D 2001 Peshawar 107

Before Shah Jehan Khan and Saleem Dil Khan, JJ

FRONTIER PROVINCIAL COOPERATIVE BANK LTD. OFFICERS ASSOCIATION (REGISTERED), PESHAWAR through President and General Secretary and another---Petitioners

Versus

FRONTIER PROVINCIAL COOPERATIVE BANK LTD., PESHAWAR through Registrar/President of the Bank and 2 others---Respondents

Writ Petition No. 1489 of 1997, decided on 7th June, 2001.

(a) Cooperative Societies Rules, 1927--

----S. 48---Trust, dissolution of---Deputy Registrar Cooperative Societies, jurisdiction of---Provincial Cooperative Bank had created a Pension Fund Trust for pension benefits to its employees---Deputy Registrar dissolved the trust after winding up of the Bank---Validity---Pension Trust Fund could not be dissolved under R.48 of the Cooperative Societies Rules, 1927, as the same was neither a Cooperative Society nor a Committee---Where the order of dissolution had neither been passed by the Registrar, nor the same had been published in the Official Gazette, such order of dissolution of the Trust was against the provisions of R:" 48 of Cooperative Societies Rules, (b) Cooperative Societies Rules, 1927--

----S. 48---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Trust, dissolution of---Rule of equity and propriety--­Applicability---Provincial Cooperative Bank had created a Pension Fund Trust for pension benefits of its employees---Bank was wound up and in ­service employees were given benefit of Golden Hand Shake Scheme---Out of 32 retired employees only 13 were benefited from the Pension Fund Trust---Deputy Registrar of Cooperative Societies dissolved the Trust under the provisions of R:48 of Cooperative Societies Rules, 1927, and the petitioners who were the remaining 19 retired employees of the Bank were given no pension benefits for which purpose the Trust was created--­Validity---Trust was validly created by the Bank and in accordance with law---Order passed by the Deputy Registrar was illegal and result of misinterpretation of relevant law---Where petitioners were the only sufferers due to the order passed by the Deputy Registrar, High Court following the rule of equity and propriety directed the Authorities to give the benefits to the petitioners accordingly.

Muhammad Latif and Yahya Khan Afridi for Petitioners.

M. Atique Shah for Respondents Nos. 1, 3 and 4.

Date of hearing: 17th May, 2001.

P L D 2001 Peshawar 112

Before A6dur Rauf Khan Lughmani and Saleem Dil Khan, J.1

MAHABAT KHAN ---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No .235 of 1998, decided on 1st February, 2001.

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

----Ss. 302/34 & 324---Appreciation of evidence---Mere existence of relationship between the deceased and the witness would not make the prosecution witnesses as interested witnesses---Omission by the complainant P to mention a .12 bore gun in the F.I.R. was not fatal to the prosecution case as he could not be expected to reproduce the occurrence with a photo­genic memory---Complainant had been fully supported by other two eye­witnesses and they had given a coherent and consistent version of the occurrence ---F.I.R. had been lodged within a reasonable time keeping in view the distance between the place of incident and the police station Complainant and the deceased being the nephews of the accused, there was no reason for false implication or substitution---Sale or purchase of land in the backward agrarian society mostly acted as motive for murders---Accused had been arrested close to the spot with the shot gun which was matched with the four crime empties according to the positive report of the Forensic Science Laboratory---Old age of accused was of no avail to him because his participation in the occurrence was established by the injury on his person and his report made to the police against the complainant party---Accused alongwith his son had mercilessly murdered three real brothers for the sake of a piece of land and he had already been dealt with leniently in the matter of sentence---Convictions and sentences of accused were upheld in circumstances.

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

S.302/34---ApPr~iation of evidence---Interested witness---Relationship b itself is not a valid ground for discarding or rejecting the testimony of a witness---Courts however, is under an obligation to scrutinise the statement of the interested witness with care and caution and if the same is found to be intrinsically reliable or inherently probable then it is sufficient for conviction.

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

----S. 302/34---Number of witnesses---Prosecution is not required by law to produce each and every person who had witnessed the occurrence.

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

----S. 544-A---Compensation to the heirs of the victim ---Default---Penalty--­Amount of compensation being recoverable as arrears of land revenue, default in its payment shall entail only six months' simple imprisonment.

Qazi Muhammad Anwar for Appellant.

Saeed Khan for the Complainant.

Nek Nawaz for the State.

Date of hearing: 1st February, 2001.

P L D 2001 Peshawar 117

Before Talat Qayum Qureshi and Saleem Dil Khan, JJ

HASHIM KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 15 of 1998, decided on 19th December, 2000.

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

----Ss. 302/149, 324/149 & 148---Criminal Procedure Code (V of 1898), S.161---Statement of a deceased witness recorded by the police not examined at the trial not to be relied upon---Statement of an eye-witness recorded under S.161. Cr.P.C. who could not be examined at the trial due to his death, cannot be relied upon.

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

----Ss.302/149, 324/149 & 148---Appreciation of evidence---Complainant had specifically charged the accused in the F.I.R. for entering the house alongwith the absconding accused and subsequently in her statement at the trial she had directly charged the accused for firing alongwith the said absconding accused; such a negligible difference was not a material improvement by the complainant on her previous statement---Motive for the commission of the offence had been proved---Crime weapon having not been recovered, the Investigating Officer had rightly not sent the crime empties to the Forensic Science Laboratory---Even - otherwise, accused had never requested for examination of the said crime empties by the Forensic Science Laboratory even during trial---Ocular testimony was supported by medical evidence recovery of crime empties and blood-stained earth from the scene of occurrence---Complainant being injured and the inmate of the house was a natural witness---Accused were closely known to the eye-witnesses who were distinctly visible to her in the light shed by the two electric bulbs of 100 watts---Common interest of the accused with the absconding co­accused was evident from the cross-examination of the eye-witness at the trial---Convictions and sentences of accused were upheld in circumstances.

(c) Criminal trial---

----Motive---Proof---Motive being a corroborative evidence is required to be proved only and is not required to be proved beyond reasonable doubt like evidence on substantial charge.

Khawaja Muhammad Khan for Appellant.

Nek Nawaz for the State.

Date of hearing: 26th October, 2000.

P L D 2001 Peshawar 126

Before Ijaz-ul-Hassan, J

GOHAR REHMAN and another---Petitioners

Versus

Mst. LACHI and 35 others---Respondents

Civil Revision No. 19 of 1999, decided on 7th May, 2001.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction, grant of---Prerequisites for grant or refusal of temporary injunction---Plaintiff has to prove prima facie good legal case, balance of convenience in his favour and that he will suffer irreparable loss if the injunction is refused.

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

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2--­Interim injunction, grant of---Concurrent findings of fact by the Courts below ---Plaintiffs assailed general power of attorney and claimed the same to be the result of fraud and forgery---Both the Courts below declined to grant the injunction in favour of the plaintiff---Validity or otherwise of the document had yet to be determined and adjudicated upon at the trial after evidence of the parties was recorded---Effect---Both the Courts below had rightly declined to grant temporary injunction and had decided question of pure fact in lawful exercise of their exclusive jurisdiction in a proper manner---High Court declined to disturb the concurrent findings of fact by the Courts below.

Mst. Raisa Bano and 7 others v. Muhammad Riaz Awan and 2 others 1996 MLD 238; Bakhtawar and others v. Amin and others 1980 SCMR 89; Muhammad Jan Ghaznawee v. Haji Muhammad Qabeer and 3 others PLD 1977 Quetta 60 and Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 ref.

Saeed Ahmad Shah Mashhadi for Petitioners.

Sajjad Afzal Khan and Abdul Khaliq Khan for Respondents.

Date of hearing: 10th April, 2001.

P L D 2001 Peshawar 129

Before Malik Hamid Saeed

and Talaat Qayyum Qureshi, JJ

GUL HUSSAIN ---Petitioner

Versus

AQAL SAID and 8 others---Respondents

Writ Petition No.81 with Civil Miscellaneous No.102 of 2001, decided on 30th January, 2001.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Bona fide personal need of landlord---Concurrent findings of fact by the Courts below---Constitutional jurisdiction of High Court ---Scope--­High Court, under Art. 199 is not Court of appeal and cannot decide whether evidence was sufficient for conclusion arrived at and is not obliged to go into he merits of the case, de novo reappraise and assess evidence on question of personal need of the landlord---While exercising Constitutional jurisdiction, High Court cannot disturb the concurrent findings of fact recorded by the Courts below on reappraisal of evidence unless it is shown that the Courts below either misread the evidence or perversely appreciated the evidence--­Merely because on fresh appraisal of evidence High Court would reach a different conclusion, is no ground to disturb such findings recorded by the Courts below.

Messrs Muhammadia Medical Hall, Khan Arm Dealers through Khurshid Alam v. Mahmood-ul-Hassan and 3 others NLR 1982 SCJ 23 rel.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Bona fide personal need of landlord---Concurrent findings of fact by the Courts below---Protection of law provided to tenant---Both the Courts below ordered ejectment of the tenant---Contention of the tenant was that the landlord did not require the premises for his own use---Validity---Where landlord would fail to occupy the premises within one month of the date of obtaining possession, the tenant, who had been affected, might apply to the Rent Controller for order under S.13(4) of West Pakistan Urban Rent Restriction Ordinance, 1959, directing the landlord to restore possession to the tenant---Judgments/orders passed by both the Courts below did not suffer from any illegality or perversity and High Court declined to interfere into the concurrent findings of fact recorded by the Courts of competent jurisdiction.

(c) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of fact---While exercising Constitutional jurisdiction, High Court cannot disturb the concurrent findings of fact recorded by Courts below by appraisal of evidence unless it is shown that Courts below either misread the evidence or perversely appreciated the same.

Javed A. Khan for Petitioner.

P L D 2001 Peshawar 132

Before Sardar Muhammad Raza Khan, C.J.

and Ejaz Afzal Khan, J

MUHAMMADULLAH---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 370 of 1997, decided on 24th April, 2001.

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

----S. 154---Qanun-e-Shahadat (10 of 1984), Arts. 140 & 153---F.I.R., its probative value---F.I.R. itself is not a substantive piece of evidence unless its contents are affirmed on oath and subjected to the test of cross-examination-­F.I.R.; in view of the provisions of Arts. 140 & 153 of the Qanun-e­-Shahadat, 1984, is a previous statement which can be used for the purpose of contradicting and corroborating its maker---- So long as F.I.R. is not proved in accordance with the law, it is as such no evidence and, therefore, cannot be taken as a proof of anything stated therein.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art.38---Appreciation of evidence ---F.I.R. was based on the statement made by the accused before the police tending to incriminate him with the offence charged with, which was inadmissible in evidence by virtue of Art. 38 of Qanun-e-Shahadat, 1984--­Discovery of the house at the instance of the accused where the dead body was found could prove nothing but his knowledge about the place of occurrence---Recovery of shot gun from the possession of accused and empties from the spot as well as positive report of the Ballistic Expert might, at their best prove the use of the shot gun in the commission of the crime, but in no manner could prove that the same had been used by the accused in the commission of the offence---Even otherwise, Ballistic report had no value as the shot gun and the empties had been despatched to the Ballistic Expert after a delay of one month---Necessary witnesses having not been examined in the case either during the investigation or in the Court, tile story about the motive for the occurrence appeared to be false and fictional---Neither any direct evidence was forthcoming to connect the accused with the crime, nor any circumstantial evidence incompatible with his innocence was available on record---Accused was acquitted on benefit of doubt in circumstances.

Ishtiaq Ibrahim for Appellant.

Fakhrul Islam, Law Officer for the State.

Date of hearing: 24th April, 2001.

2001 Peshawar 135

Before Khalida Rachid

and Qazi Ehsanullah Qureshi, JJ

Syed AKHTAR HUSSAIN---Petitioner

Versus

INSPECTOR INCHARGE OF INVESTIGATIONS, C.I.A., PESHAWAR and 4 others---Respondents

Writ Petition No.287 of 2001, decided on 31st May, 2001.

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

----Ss. 87 & 88---Offences Against Property (Enforcement of Hudood) Ordinance (VI of1979), S.17(3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Attachment of property---Order for the raid, if so required after recording of evidence, could be made only by the Court as envisaged by Ss. 87 & 88, Cr.P.C.---No such order by the Court was available in the case, nor any such proceedings had been undertaken--­Inspector C.I.A. had raided the house of the petitioner in total violation of law notwithstanding the knowledge that the petitioner was neither an accused nor a proclaimed offender---Inspector ignored to comply with the provisions of S.103, Cr.P.C. while taking into possession the goods in question from the house of the petitioner ---S.S.P. had also dealt with the application in haphazard manner least caring to understand and interpret the law in its right perspective---Police was to serve and guard the interest of the people and not to harass them, just to throw the burden from their shoulders without putting least efforts to investigate the truth---Act of the Inspector C.I.A. was illegal and without lawful authority and he was consequently directed to immediately return the goods recovered from the house of the petitioner to him---Constitutional petition was allowed accordingly.

Qazi Zaki-ud-Din for Petitioner.

Fakhr-ul-Islam, Law Officer for Respondents alongwith Respondent No. l (on pre-Admission Notice).

P L D 2001 Peshawar 140

Before Khalida Rachid and Ejaz Afzal Khan, JJ

LUQMAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.69 of 1998, decided on 23rd May, 2001.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Testimony of the solitary eye-witness by itself was not liable to be discarded when otherwise it rang true and inspired confidence---Eye-witness being father of the deceased was, no doubt, highly interested, but his evidence having no defect in its intrinsic probative worth and he having no motive for false implication of accused, his testimony could be safely relied upon---Medical evidence had no conflict with ocular account of occurrence ---Abscondence of accused having not been plausibly explained, the same had corroborated the prosecution evidence--­Acquittal of co-accused in the case had no bearing on the conviction of accused as the role of co-accused in the occurrence was not similar to that of the accused---Opinion of one of the Investigating Officers regarding the crime being an unwitnessed one was nothing but a concession made by him to favour the accused under some obligation---Conviction and sentence of accused were upheld in circumstances.

Abdul Latif Afridi for Appellant.

Raza Khan Muhammad for the State.

Muzamil Shah Khattak for the Complainant.

Date of hearing: 29th March, 2001.

P L D 2001 Peshawar 144

Before Sardar Muhammad Raza Khan, C. J.

and Ejaz Afzal Khan, J

YASIN and 3 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 372 of 1997, decided on 17th April, 2001.

Penal Code (XLV of 1860)--

----S. 302/34---Appreciation of evidence---Occurrence had not taken place in the manner described by the prosecution---Narration given by the eye­witnesses of the occurrence was not consistent with medical evidence ---Eye-witnesses were not found to be present at the spot at the relevant time--­Presence of crime empties near the dead bodies of the deceased persons had changed the whole complexion of the incident which had become highly mysterious and extremely doubtful---Evidence on record being deficient to connect the accused with the crime, abscondence of accused could not remedy the defects of the prosecution case---Accused were acquitted in circumstances.

Esa Khan for Appellants.

Fakhrul Islam, Law Officer for the State.

Haji Shamsul Qamar for the Complainant.

Date of hearing: 17th April, 2001.

P L D 2001 Peshawar 152

Before Sardar Muhammad Raza Khan, C. J., Ejaz Afzal Khan and Khalida Rachid, JJ

NASRULLAH---Petitioner

Versus

THE STATE---Respondent

Bail Application No.590 of 2000, decided on 24th October, 2000.

Per Ejaz Afzal Khan, J.; Sardar Muhammad Raza Khan C.J. and Khalida Rachid, J. agreeing--

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

----Preamble---Scheme and legislative intent behind the Act stated.

(b) Interpretation of statutes---

---- Mandatory or directory nature of a statute---Determination of---Test--­Principles---Duty of Court.

While there is no absolute test by which it may be determined whether a statute is mandatory or directory the primary rule is .to ascertain the legislative intent as revealed by an examination of the whole Act.

No universal rule can be laid down for determination whether the provisions are mandatory or directory. In each case, intention of the Legislature must be ascertained by looking at the whole scope of the statute and, in particular, at the importance of the provisions in question in relation to the general object to be secured.

No universal rule can be laid down as to whether a mandatory enactment shall be construed directory only or obligatory on an implied nullification for disobedience. It is the duty of the Courts of justice to try to get the real intention of the Legislature by carefully attending to the whole scope of the Statute to be construed.

No rule of universal application can be laid down. However, a duty is always cast on the Courts to carefully attend to the whole scope of the statute to be construed to determine whether the provisions thereof are mandatory or otherwise.

As a general rule, statutes, which enable a person to take legal proceedings under certain specified circumstances, demand -that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language. When a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly applied.

It is always for the Court to ascertain the legislative intent by examining the whole Act.

Corpus Juris Secundum, Vol. 82, Statute, p.869; Halsbury's Laws of England; Howard v. Bodington (1877) 2 PD 203; Atta Muhammad Qureshi v. Settlement Commissioner PLD 1971 SC 61 arid Craies of Statutory Laws, 6th Edn. ref.

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

----Ss. 20, 21, 22, 25, 26 & 72---Criminal Procedure Code (V of 1898), S.156(2)---Entry, search, seizure or arrest---Provisions of Ss.21, 22 & 26, Control of Narcotic Substances Act, 1997 are mandatory in nature and observance thereof would be imperative to the validity of entry, search, seizure and arrest and non-compliance therewith would invalidate the whole action from the inception to the end---Officers below the rank of Sub­-Inspector of Police were just a non-entity for the purposes of the Control of Narcotic Substances Act, 1997---Contention that, if an officer not empowered or authorised had made entry, search, seizure or arrest, same could be regularized by invoking the provisions of S.156(2), Cr.P.C. was, repelled--­Principles.

Section 20(2), Control of Narcotic Substances Act, 1997 reveals that the Special Court issuing the warrant is supposed to ensure that the officer to whom a search warrant under subsection (1) is addressed shall have the power of an officer acting under section 21. A keen look at sections 21 and 22 of the said Act would unmistakably indicate that the makers of the law never intended that an action under the provisions of sections 21 and 22 should be taken by an officer below the rank of Sub-Inspector of Police or equivalent. It is to be noted that a Sub-Inspector by virtue of his office alone is not competent to proceed under the above provisions unless he is authorised in this behalf by the Federal or Provincial Government. The law makers, it would thus be seen, by visualizing certain situations dispense with warrant for arrest or search when obtaining thereof would afford a person an opportunity for the concealment of evidence or facility of his escape but under no circumstances permitted any officer below the rank of Sub­-Inspector of Police to do any of the acts mentioned in sections 21 and 22. A perusal of section 26 of the Control of Narcotic Substances Act, 1997 will leave absolutely no manner of doubt about the mandatory nature of the provisions of the Act because according thereto even vexatious entries, searches, seizures or arrests could never be conceived by the Legislature to be made by an officer not empowered and authorised under sections 20 and 21.

Argument that if an officer not empowered or authorised has made entry, search, seizure or arrest, same can be regularized by invoking the provisions of section 156(2) of the Cr.P.C. is devoid of force in view of the provisions of section 25 of the Act because the provisions of the Cr.P.C. would apply only if the acts done by the Police Officer are not consistent with the provisions of sections 20, 21, 22 and 23 of the Act.

A fleeting glance at section 72, Control of Narcotic Substances Act, 1997 would make it clearer still that every conceivable eventuality was all along in the mind of the Legislature, that is why even the Customs Officers were empowered to carry out the inquiry and investigation in the same manner as an authorised Officer under the Control of Narcotic Substances Act, 1997, thus this too leaves no room for an officer below the rank of Sub­-Inspector to figure anywhere in the scheme of this Act. It would, therefore, follow that the officers below the rank of S.-I. are just non-entity for the purposes of Control of Narcotic Substances Act, 1997 who can never be made entity by having recourse to the interpretative niceties. The provision contained in section 21 of the Act satisfies still another test.

If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, those requirements are in all cases absolute, and that neglect to attend to them will invalidate the, whole proceedings.

When section 21 of the said Act is read in the light of this test, it seems and sounds mandatory inasmuch as it is couched in negative language as the expression "Sub-Inspector" is preceded by the words "not below the rank of". Where a thing is provided to be done in a particular manner it has to be done in that way or not at all.

The provisions of the Control of Narcotic Substances Act, 1997 are mandatory and observance thereof would be imperative to the validity of entry, search, seizure and arrest and non-compliance therewith would invalidate the whole action from the inception to the end.

State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; Muhammad Afzal v. The State PLD 2000 SC 816; Muhammad Asiam v. The State 1991 SCMR 599 and Khalid Nawaz v. The State 1998 PCr.LJ 2008 ref.

Per Khalida Rachid, J.---

The drug traffickers should be dealt with strictly and should not be allowed to take advantage of the loop-holes of the law, because they are a group of extreme flagitious and immoral people of the society and they manage to succeed by hook or by crook in getting benefits of aperture in the law. After escaping from the hands of the law, keep on indulging in the ugly business which is exterminating the people of the society like termites. In such an event when credibility of the country has suffered a lot in the International Community, Pakistan has been literally isolated from the comity of civilized Nations.

While dealing with such cases in the Court, a Judge always desires to do justice with the parties, society and humanity at large in accordance with law and would also like to take into consideration the equity aspect too.

Under section 103, 'Cr.P.C. which is undoubtedly, a mandatory provision and it is obligatory on the officer to execute a search warrant by associating two or more respectable inhabitants to witness the search, but there are cases where the police officers, for certain reasons, are unable to procure search association of the witnesses, may be due to fear of the accused person or avoid the enmity, are relieved of such obligations by the superior Courts and apex Court. There are extraneous circumstances where police witnesses are considered as good as private witnesses.

No doubt, Law-makers by introducing the restriction of Sub­-Inspector meant to get the senior members of Police Force involved for fair and transparent investigation. But it has been observed that in such-like cases police force is least concerned about the sanctity of the law and leaves loop­holes to distort the case. Therefore, directions be issued to the Inspector-­General of Police that no police officer below the rank of Sub-Inspector be allowed to investigate in such-like cases. Any deviation from the law should in future be considered as the non-compliance of the orders of the Courts.

Qimat Hasan v. State 1999 PCr.LJ 824 mentioned

Per Sardar Muhammad Raza Khan, C J, The Control of Narcotic Substances Act, 1997 is a stringent law, so far as the rights of accused are concerned. Various deviations from the normal law have frequently occurred and it is quite harsh even against the concession of bail. In the wake of this background, certain restrictions or limitations have been placed on the prosecution and Investigating Agencies. This is an effort to strike a balance between the accused and the prosecution. In these circumstances the superior Courts have always maintained such balance and have avoided to give latitude to the prosecution by holding from time lo-time that in such-like laws with harsh provisions against the accused, the limitations placed on the Investigation Agencies and Prosecution Agencies must be strictly complied with. This is another reason that it is held that the provisions of the sections of law in question are indatory and not directory.

(d) Interpretation of statutes-----

--- Manner in which something is to be done prescribed in negative language---Effect.

If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, then those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceedings.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8 & 9---Bail, grant of---Record showed the recovery of seven Kgs. of Charas from the possession of the accused which could not be convincingly disputed---Nonetheless, in view of the violation of Ss.20, 21 & 22 of the Control of Narcotic Substances Act, 1997 by the prosecution, High Court accepted the bail application of the accused and directed his release on bail provided a bond in the sum of Rs.4,00,000 with two local, reliable and resourceful sureties were furnished to the satisfaction of the Special Judge concerned.

Ghulyar Khan v. The State Criminal Miscellaneous No.646 of 2000; Saleem v: The State Criminal Miscellaneous No.767 of 2000; Muhammad Ikram v. The State 2000 PCr.LJ 891; Qimat Hasan v. The State 1999 PCr.LJ 824; Khalid Nawaz v. The' State 1998 PCr.LJ 2008; Muhammad Afzal v. The State PLD 2000 SC 816'; State through Advocate-General, Sindh v. Bashir and others PLD 1997. SC 408; Muhammad Ramzan v. Muhammad Iqbal, Sub-Inspector of Police, District Kehari Mitroo and another 1998 PCr.LJ 828; Corpus Juris Secundum, Vol. 82, Statute, p.869; Halsbury's Laws of England; Howard v. Bodington (1877) 2 PD 203; Atta Muhammad Qureshi v. Settlement Commissioner PLD 1971 SC 61 and Craies of Statutory Laws, 6th Edn. and Muhammad Aslam v. The State 1991. SCMR 599 ref.

Khushdil Khan Mahmand for Petitioner.

Imtiaz Ali Khan, Addl. A.-G. for the State.

Date of hearing: 2nd October, 2000.

P L D 2001 Quetta 1

Before Raja Fayyaz Ahmed, C.J.

and Fazal-ur-Rehman, J

Mst. AZIMA and another---Applicants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.22 and Criminal Appeal No.30 of 2000, decided on 21st August, 2000.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 342---Provisions of S.342, Cr.P.C. not strictly complied with---Case remanded---Accused had not been examined by Trial Court in accordance with the provisions of S.342, Cr.P.C.---Certificates appended to the statements of accused were not in the handwriting of the Presiding Officer who appeared to have put his signatures at four places without recording the statements in accordance with law---Such defect in recording the statements of accused under S.342, Cr.P.C. was not an irregularity but an illegality which was not curable--­ Miscarriage of justice having been occasioned in the case, convictions and sentences of accused were set aside and the case was remanded to Trial Court for retrial from the stage of recording statements of accused under 5.342, Cr.P.C. and writing a proper judgment in accordance with law.

Waseem Jadoon for Applicant.

Muhammad Qahir Shah for Appellant.

Ikhtiar Khan Marghanzai, A.A.-G. for the State.

Date of hearing: 19th June, 2000.

P L D 2001 Quetta 5

Before Raja Fayyaz Ahmed, C. J.

and Fazal-ur-Rehman, J

DOST MUHAMMAD ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No-78 of 2000, decided on 21st August, 2000.

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

----S. 9(c)--Criminal Procedure Code (V of 1898), S. 103---Appreciation of evidence---Provisions of S.103, Cr.P.C. had no application to narcotic cases---Recovery of "Charas" from his possession had not been denied by accused in his statement recorded under S.340(2), Cr.P.C.---Planting a huge quantity of "Charas" inside the house by the police was not possible---Police officials who had no ill-will against the accused were competent witnesses and their testimony could not be discarded only for the reason that they belonged to Police Department---Accused had been changing his defence version which could not be relied upon---Material recovered from the possession of accused was found to be "Charas" on Chemical analysis---Conviction and sentence of accused were upheld in circumstances

PLD 1997 SC 408 and PLD 1990 SC 1176 ref.

Inayatullah Khan for Appellant.

A. A.-G. for the State.

Date of hearing: 8th August, 2000.

P L D 2001 Quetta 10

Before Aman Ullah Khan Yasinzai, J

Mir ZAFFARULLAH KHAN JAMALI---Petitioner

Versus

THE STATE through Superintendent of Police, Anti-Corruption Establishment, Balochistan, Quetta ---Respondent

Criminal Revision No.78 of 2000, decided on 8th September, 2000.

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

----Ss. 4(1)(1) & 156---Investigation---Purpose---Purpose of investigation is;: to find out the truth and place the same before the Court by way of collecting evidence during course of investigation so as to bring the real culprits to book.

State of Uttar Pradesh v. Bhagwant Kishore AIR 1964 SC 221 ref.

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

----Ss. 420/409/468/471/477/109---Prevention of Corruption Act (II of 1947), S.5(2)---Trial Court by means of the impugned order had directed the Investigating Officer to complete investigation and submit challan in the Court without any further delay---Setting aside of the said order certainly meant interference in the investigation process which was not within the jurisdiction of the Courts---Impugned order, even otherwise, .was directory and general in nature and no specific direction had been given to the Investigating Officer to arrest the accused---Investigating Officer had only been directed to complete the investigation and submit complete challan in the Court and such direction could not at all be prejudicial to the accused.

State of Uttar Pradesh v. Bhagwant Kishore AIR 1964 SC 221; Abdul Latif v. I.-G. Police and others 1999 PCr.LJ 1357; Atta Muhammad v. I.-G. Police and others PLD 1965 (W.P.) Lah. 734; Muhammad Yousaf v. The State 2000 SCMR 453; PLD 1994 SC 281; Emperor v. Nazir Ahmad AIR 1955 PC 45 and Khawaja Nazir Ahmad's case AIR 1945 PC 18 ref.

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

----Ss. 156 & 173---Investigation into cognizable cases---No embargo on the powers of police for carrying out further investigation after submission of challan in the Court.

Muhammad Aslam Chishti and Basharatullah for Petitioner.

Ashraf Khan Tanoli, A.-G. for the State.

Date of hearing: 23rd August, 2000.

P L D 2001 Quetta 20

Before Raja Fayyaz Ahmed, C. J.

and Fazal-ur-Rehman, J

MUHAMMAD ASLAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 181 of 1999, decided on 15th August, 2000.

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

----S. 302---Criminal Procedure Code (V of 1898), S.364---Delayed confession---Delay in recording confession by itself cannot render the confession nugatory if otherwise it is proved on record to have been voluntarily made.

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

----S. 302---Appreciation of evidence---Statement of accused under S.342, Cr.P.C. had not been lawfully recorded by the Trial Court---Trial Court had not indicated as to under which sub-clause of S.302, P.P.C. the accused had been convicted---Statement of co-accused against whom charge had been framed could not be relied upon for conviction of accused---Nothing had been brought on record which could implicate the accused in the crime--­Charge against the accused was that he had shared common intention with the acquitted co-accused, but the same had neither been established nor the charge had been altered subsequently---Finding of Trial Court was not based on any valid evidence---Accused was acquitted in circumstances.

Zaheer-ud-Din v. The State 1993 SCMR 1628; 1995 SCMR 1345; 1999 SCMR 1220 and 2000 SCMR 1038 ref.

Kamran Murtaza for Appellant.

A.A.-G. for the State.

Date of hearing: 31st May, 2000.

P L D 2001 Quetta 30

Before Raja Fayyaz Ahmed, C.J.

and Tariq Mahmood, J

SAADULLAH---Petitioner

Versus

THE GOVERNMENT OF BALOCHISTAN through Secretary, Home Department, Balochistan Secretariat, Quetta and 2 others---Respondents

Constitutional Petition No.203 of 2000, decided on 4th October, 2000.

Criminal Procedure Code (V of 1898)--

---S. 156---Constitution of Pakistan (1973), Art.199---Penal Code (XLV of 1860), S.302------Constitutional petition---Further investigation ---Advocate-­General after having gone through the police investigation tile and the documents available on record had made a categorical statement that keeping in view the grievance of the complainant further investigation in the case would be undertaken by a competent, impartial and honest police officer in order to reach the truth---Petition in view of the said statement having borne fruit was not pressed by the complainant and the accused also did not take any exception to the same---Further investigation in the case was consequently ordered to be carried out by a competent, impartial and honest police officer and to be commenced within one week from the date of the order and the result thereof to be submitted to the Trial Court within one month, failing which the Trial Court was directed to commence the trial of the case in the light of the challan already submitted in the Court--­Constitutional petition was disposed of accordingly.

2000 SCMR 453; PLD 1997 Kar. 119 and PLD 1997 Kar. 600 ref.

Amir Raza Naqvi for Petitioner.

Ashraf Khan Tanoli, A.-G. for the State.

Syed Ayaz Zahoor and Mohsin Javed for Respondents.

Date of hearing: 4th October, 2000.

P L D 2001 Quetta 33

Before Aman U11ah Khan

and Ahmed Khan Lashari, JJ

LAL MUHAMMAD ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.41 and Murder Reference No.3 of 2000, decided on 16th October, 2000.

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

----S. 302---Appreciation of evidence---Related or interested witness--­Credibility---Condition---Statement of a witness cannot be discarded merely for his being related to the deceased or being interested, provided his statement otherwise inspires confidence and is corroborated by other independent source.

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

----S. 302---Appreciation of evidence---Principle---Statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent man---If these elements are present then the statement of the worst enemy of the accused may be accepted and relied upon without corroboration, but if these elements are missing then the statement of a pious man may be rejected without second thought.

Haroon alias Haroni v. The State and another 1995 SCMR 1627 ref.

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

----S. 302---Appreciation of evidence ---Confession---Admissibility--- Principle---Confessional statement of an accused when is to be believed has to be considered in its entirety and the portion of the statement favouring the accused is not to be ruled out of consideration.

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

----Ss. 302(a) & su1(d)---Appreciation of evidence---Sentence---Accused was proved to have given a hatchet below to the deceased which proved fatal--­Ocular testimony of the occurrence was corroborated by the recovery of the hatchet effected at the instance of accused on the very first day of his arrest---Confessional statement of accused had also strengthened the prosecution version---Accused, however, had no motive to kill the deceased and the incident had taken place at the spur of the moment without any premeditation---Accused was an old man of 60 years age---Conviction of accused under S.302(a), P.P.C. was altered to one under S.302(b), P.P.C. and his sentence of death was commuted to imprisonment for life in circumstances, with benefit of 5.382-B, Cr.P.C.

Haroon alias Haroni v. The State and another 1995 SCMR 1627; PLD 1988 SC 25; PLD 1996 SC ; and 1992 SCMR 2047 ref.

Muhammad Mohsin Javed for Appellant.

Mrs. Ashraf Abbas for the State.

Tahir Muhammad Khan for the Complainant

27th September, 2000.

P L D 2001 Quetta 40

Before Tariq Mahmood, J

MUHAMMAD ZAKRIA KANSI---Appellant

Versus

Dr. BASHIR AHMED ---Respondent

First Appeal from Order No.96 of 1999, decided on 11th October, 2000.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(3)(a)(ii)---Bona fide personal need of landlord---If the landlord himself had received huge amount as Pagri at the time of induction of tenant or allowed sitting tenant to do so with his consent, he could not be allowed to seek ejectment of tenant on the ground of personal requirement, unless he proved his case to the hilt.

PLD 1991 SC 265 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(3)(a)(ii)---Bona fide personal need of landlord---Proof---Statement of landlord on oath with regard to his personal requirement consistent with his averments trade in the ejectment application and not shaken in cross­examination was sufficient in normal cases to prove his personal bona fide need.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(3)(a)(ii)---Bona fide personal need of landlord---Landlord got constructed another plaza having four shops and flats and let out same to various tenants during pendency of his ejectment application or immediately before filing of application---Landlord not only got vacated properties from other tenants, but has also filed ejectment applications against other tenants--­Landlord who had been carrying on variety of businesses, was in possession of shops near the shop in dispute, but had not given any explanation that same were not suitable for his intended purpose---Landlord having failed to prove that his need in respect of shop in dispute was honest or bona tide, tenant who had come into possession of shop in question after paying of huge amount as Pagri, could not be ejected on the mere whim of the landlord.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----13(3)---Bona fide personal need of landlord---Choice of landlord--­Privilege of the landlord was to choose any one of his properties for self use considered by him suitable for his requirement, provided always that his need was not tainted with mala fide.

Qahir Shah and Asadullah for Appellant.

Sakhi Sultan for Respondent.

Date of hearing: 22nd September, 2000.

P L D 2001 Quetta 47

Before Aman Ullah Khan and Ahmed Khan Lashari, JJ

Haji. AMIR MUHAMMAD and 2 others----- Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 167 and 171 of 1999, decided on 13th November, 2000.

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

----S. 302(b)---Appreciation of evidence---Motive as alleged by the prosecution had been proved---Eye-witnesses including an injured one had given a detailed account of the incident attributing to the accused the fatal blows caused to the deceased---Ocular evidence was reliable and confidence inspiring---Probable cause of death of-the deceased was stated to be due to head injury, internal bleeding and shock---Neither the dimensions of injuries were given in the medical report, nor the doctor who examined the deceased was produced yet the same had been proved through ocular evidence---Role attributed to accused could not be individualized and each of them could not be held individually liable for the injuries caused to the deceased but their presence at the spot and the manner in which the incident took place and the injuries inflicted upon the deceased had made them vicariously liable for the commission of the offence---Conviction and sentence of accused were upheld in circumstances.

Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Muhammad Ali alias Mohammadah v. The State 1983 SCMR 1211 and Muhammad Khan v State PT T) 1977 SC 446 ref.

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

----S. 302(b)---Appreciation of evidence---Solitary witness ---Principle--­Conviction can be based on solitary statement of a witness and no particular number of witnesses is required for the proof of a fact, as importance is given to the quality than the quantity of evidence---Corroboration for a solitary witness is not a statutory requirement and application of this principle depends on circumstances oft each case.

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

----S. 302(b)---Appreciation of evidence---Related witness---Mere relationship of a witness is no ground to discard his testimony.

Irshad Ahmad end others v. The State and others PLD 1996 SC 138 ref.

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

----S. 417---Penal Code (XLV of 1860), S.302;b) --Appeal against acquittal­--Appreciation of evidence---Principles regarding appreciation of evidence in an appeal against acquittal are much different than an appeal against conviction----Principles enumerated.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 985 SC I 1 ref.

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

----S. 302(b)---Criminal Procedure Code (V of 1898) S417(2-A)---­Appeal against acquittal---Record did not show that the judgment acquittal the accused was frivolous or shocking or had been passed disregard some material on the file---Accused were though shown to be present on spot, yet they -were not proved to have actively participated in occurrence-- -Allegation that a prosecution witness had received injuries at the hands of the accused was not substantiated on record by placing his medical certificate thereon---Appeal against acquittal of accused was dismissed in circumstances---Case of. absconding accused being at par with the said accused, he was also acquitted in absentia on the principle of consistency.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and Mohabat Ali and another v. The State 1985 SCMR 662 ref.

Muhammad Aslam Chishti for Appellants (in Criminal Appeal No. 167 of 1999).

Ghulam Mustafa Mengal. A.A.G. for Respondent (in Criminal Appeal No. 167 of 1999).

Ehsanul Haq for Appellant (in Criminal Appeal No. 171 of 1999).

Muhammad Aslam Chishti for Respondent (in Criminal Appeal No. 171 of 1999).

Ghulam Mustafa Mengal, A.A.G. for the State (in Criminal Appeal No. 171 of 1999).

Dates of hearing: 2nd, 3rd and 4th October, 2000.

P L D 2001 Quetta 60

Before Raja Fayyaz Ahmed, C.J.

and Tariq Mahmood, J

MUHAMMAD ESSAA KHAN and 4 others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through

Deputy Commissioner/Collector, Khuzdar

and another---Respondents

Constitutional Petition No.479 of 2000, decided on 8th November, 2000.

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

----Ss. 164 & 167---Limitation Act (IX of 1908), S.12(2)---Computation of period of limitation---Exclusion of time requisite for obtaining copy of order­--Provision of S.167, West' Pakistan Land Revenue Act, 1967 having expressly provided that provisions of Limitation Act, 1908 were applicable to appeal, review or revision filed under West Pakistan Land Revenue Act, 1967, in the matter of computation of period of limitation for filing revision, time requisite for obtaining copy of order, would be excluded despite omission of word "revision" in S.12(2) of Limitation Act, 1908.

PLD 1964 Kar. 795 ref.

(b) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Power of review by Board of Revenue---Scope---Power to review an order- as provided by S.8(1) of West Pakistan Board of Revenue Act, 1957 could be exercised where mistake or error of law or fact was apparent on the record and the same were. to be exercised within four corners of prescribed condition and limitation---Insignificant errors which did not go to the root of the matter, were to be ignored, but if error had material bearing on the final result of the case, same could be interfered with in review jurisdiction.

(c) Administration of justice--

--- No one should suffer on account of the act of the Court.

(d) Constitution of Pakistan (1973)---

----Art. 199 ---Constitutional jurisdiction ---Nature ---Constitutional jurisdiction was an equitable relief.

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

----S164---Revisional jurisdiction of Member, Board of Revenue ---Scope--­Revisional jurisdiction of Member, Board of Revenue, was not limited and .he only limitation to exercise of jurisdiction was that no order could be passed without hearing and notice to the person concerned.

Ehsanul Haq for Petitioners

Date of hearing: 31st October, 2000.

P L D 2001 Quetta 64

Before Fazal-ur-Rehman and Tariq Mahmood, JJ

JAGIN and 2 others Appellants

Versus

THE STATE Respondent

Criminal Appeal No.(S)43 of 2000, decided on 1st March, 2001

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

----Ss. 302/147/148/149---Appreciation of evidence---Incident took place during dark night and the identification of the accused during dark night from the distances and in the manner given by lice prosecution witnesses in their delayed contradictory and unproved statements, was neither possible nor confidence inspiring---Complainant in his report had neither nominated any person to have witnessed the occurrence nor had stated the source of his information---Delayed statements of prosecution witnesses recorded after ten days of occurrence without any explanation for such delay were doubtful--­Recovery of alleged crime. weapon inspired no confidence---Charge against the accused persons was that they had shared common intention with the absconding accused, but same had not been established nor the charge had been altered subsequently---Case of the accused was at par with co-accused who had since been discharged---No post-mortem examination of deceased had been carried out nor any evidence from the Neuro Surgery Ward of the Hospital where deceased was stated to have expired, had been produced---

Trial Court had not believed the defence version as correct and statements of the accused under S. 342, Cr.P.C. were not recorded in accordance with law---Failure of defence to prove its plea could neither reduce the burden of prosecution to prove its case beyond reasonable doubt nor the same could be taken into consideration in support of the prosecution---Case of the prosecution was doubtful in nature as evidence on record was in no way sufficient to lead to a conclusion that the accused could be convicted of the offence alleged against them---Accused were acquitted of the charge and conviction and sentence awarded to them by the Trial Court, were set aside.

1988 SCMR 579; PLD 1964 Pesh. 288; PLD 1965 (W.P.) Kar. 286; 1991 SCMR 2270; 1989 PCr.LJ. 92; 2000 SCMR 1038 and Zaheer-ud­Din v. State 1993 SCMR 1628 ref.

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

----S. 342---Examination of the accused ---Essentiality---Requirements--­Questions to be put to the accused, should be definite and specific---Trial Court was bound to ask such question from the accused which related to root of prosecution evidence and based for conviction---If such incriminatory piece of evidence was omitted to be put against the accused while recording his statement under S.342, Cr.P.C. by the Trial Court, same could not be considered to be a piece of evidence against the accused and in such circumstances, his conviction could not be maintained.

Munawar Hussain v. State 1996 SCMR 1601 ref.

(c) Administration of justice---

---- When the law provided the procedure for doing a thing in particular manner, then that should be done in that manner or not at all.

Nazir Ahmed and Salahuddin Mengal for Appellants.

A.A.-G. and Haji Muhammad Sadiq Ghuman for the State.

Date of hearing: 11th November, 2000.

P L D 2001 Quetta 72

Before Tariq Mahmood and Ahmed Khan Lashari, JJ

Dr. Mrs. BUSHRA MAGSI---Petitioner

Versus

DISTRICT MAGISTRATE/DEPUTY COMMISSIONER, JHAL MAGSI AT GANDAWAH---Respondent

Constitutional Petition No. l l (Sibi) of 2001, decided on 7th May, 2001.

(a) Constitution of Pakistan (1973)---

----Art. 27---Admission in professional colleges and employment---Quota system---Object and scope---Object of creating reserved seats for different districts in professional colleges and in employment is to give legal protection to the students who are genuine residents of the area in order to bring them at par with the developed areas of the country/province--­Whenever reserved seats/posts are advertised, the Authorities demand Local/Domicile Certificate issued by Deputy Commissioner/District Magistrate--s of the respective district---Object of quota system is defeated if the candidates, who are not bona fide/permanent residents of the area but somehow or the other manipulate to obtain Domicile/Local Certificate from' such districts and become eligible for such reserved seats, affecting the rights of genuine residents of the area.

(b) Constitution of Pakistan (1973)---

----Art. 27---Admission in professional colleges and employment---Quota system---Reserved seats for different districts in professional colleges and employment---Requirement of Local Certificate ---Issuance such Certificate---Procedure outlined.

(c) Constitution of Pakistan (1973)---

----Arts. 27 & 199---Constitutional petition---Admission in professional colleges and employment---Quota system---Reserved post, appointment against---Enquiry by Authorities made in the absence of petitioner ---Effect--­Petitioner claimed to be the resident of District Kachhi on the basis of her being married to permanent resident of the district---Authorities refused to issue Domicile Certificate/Local Certificate to the petitioner although such certificate had already been issued to her husband---Contention of the Authorities was that the Local Certificate was issued to the genuine residents of the area and as the husband of the petitioner had no connection with District Kachhi, therefore, the same could not be issued to her ---Validity--­At the time of submission of application to the Authorities the petitioner of her husband failed to place necessary material before the Authorities to prove that she was a genuine resident of the area---Authorities conducted the inquiry in to the matter in absence of thepetitioner and no opportunity of hearing was provided-to her---Where neither the petitioner followed the proper/prescribed procedure nor the Authorities, the order passed by the Authorities was set aside---High Court directed the petitioner to appear before the Authorities for decision afresh---Petition was disposed of accordingly.

Amtul Naseer Sami v. Secretary Health. and others 1975 SCMR 265; Chaudhry Noor Muhammad v. Province of West Pakistan PLD 1971 Lah. 361; Shah Baz Khan v. Government of Balochistan PLD 1977 Quetta 22; Dr. Mrs. Munawar Zareen v Secretary-, P.P.S.C. PLD 1997 Lah. 36; 1995 CLC 93 (Citation is incorrect); Syed Ali Nawaz Shah Gardezi v. Lt.­Col. Muhammad Yousaf Khan PLD 1962 Lah, 558; Miss Sumaeea Zareen v. Selection Committee 1991 SCMR 2197 and Miss Salina Mughal v. Selection Committee 1993 SCMR 2183 ref.

Amanullah Khan Kanrani for Petitioner.

Ashraf Khan Tanoli, A.-G. for Respondent.

Date of hearing: 28th April, 2001.

P L D 2001 Quetta 78

Before Raja Fayyaz Ahmed C. J.

and Tariq Mahmood, J

Mst. KISHWAR REHMAN---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Health Department, Civil Secretariat, Quetta and 4 others---Respondents

Constitutional Petition No. 101 of 2001, decided on 26th April, 2001

(a) Pakistan Citizenship Act (II of 1951)---

----S. 17---Pakistan Citizenship Rules, 1952, R. 23---Certificate of domicile---Entitlement to benefits attached to an area---Validity---Holder of Domicile Certificate cannot claim that he is permanent resident of the area and entitled to benefits attached to the said area.

(b) Pakistan Citizenship Act (II of 1951)---

----S. 17---Pakistan Citizenship Rules, 1952, R. 23---Certificate of domicile---Object---Issuance of Domicile Certificate in favour of a person means that he is domicile of Pakistan and not of particular district---Domicile Certificate issued under S.17 of Pakistan Citizenship Act, 1951 read with R.23 of Pakistan Citizenship Rules, 1952, has no other purpose except that a particular person is a domicile of Pakistan.

(c) Educational institution-

---- Admission to professional colleges---Reserved seats---Local Certificate, requirement of---Scope---Dispute was with regard to issuance of Domicile Certificate by the Authorities in favour of a candidate who was admitted in medical college against a reserved seat for Panjgoor---Father of the selected candidate did not belong to that area rather he settled there while he was posted in a college---Authorities issued Domicile Certificate on the basis of which the disputed admission was granted---Validity---Possession of Local Certificate issued by the Deputy Commissioner/District Magistrate or Domicile Certificate issued by the Authorities under the provisions of Pakistan Citizenship Act, 1951 by itself would not be sufficient to grant admission because the same is open to genuine Local and Domicile candidates of the Province/District and it is for Selection Committee to decide the belonging of a candidate on the basis of material available on record or inquiry through the Authorities---Mere fact that the father of the selected candidate joined service in Balochistan and posted at Panjgoor was not by itself conclusive evidence of such candidates or his father's intention to settle permanently in Panjgoor---For the acquisition of a domicile of a choice, there must be a combination of residence and intention of permanent or indefinite residence before the change could become effective---Since Domicile Certificates were being issued for the purpose of admission in professional colleges of Balochistan or gains attached to it, therefore, if in order to regulate issuance of such certificates, Local Certificate Committee and Domicile Certificate Committee had been constituted or some set procedure was being followed and the certificates were being issued on the recommendation of such Committee, no departure could be made particularly when criteria and purpose for grant of two certificates were entirely different---In the former case it could not be cancelled except in the manner provided by the law but in later case after providing opportunity of hearing or/and probe into the matter, same could be recalled---Domicile Certificate issued by the Authorities in favour of selected candidate was without lawful authority and of no legal effect ---Admission granted to the selected candidate was cancelled in circumstances.

1980 SCMR 456 ref.

(d) Educational institution-

----Admission to professional colleges---Reserved seats---Object---Reserved seats for various districts in professional college are to give legal protection to the students of backward areas in order to bring them at par with the developed areas of the country---Such departure from merits has Constitutional protection in case of educational institutions financed by Government---If students who are not permanent/genuine residents of the districts, manage Domicile Certificates and get admission, object of reserved seats is defeated.

Tahir Muhammad Khan for Petitioner.

Ghulam Mustafa Mengal, A.A.-G. for Respondents.

Date of hearing: 18th April, 2001.

P L D 2001 Quetta 88

Before Tariq Mahmood and Ahmed Khan Lashari, JJ

PEHLWAN and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeals NOS.(S)IOI, (Q)200 and Murder Reference No.(S)12 of 2000, decided on 20th April, 2001.

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

----Ss. 302(a), 302(c)-& 308---Appreciation of evidence---Grave and sudden provocation, plea of---No evidence was available on record to connect the accused with the commission of offence except recovery of crime weapon at his instance, securing of empties from the spot and positive report of the expert, which could be used only for the purpose of corroboration---Accused even otherwise had not disputed the same in his statement recorded under 5.342, Cr.P.C. wherein he admitted the occurrence to have been committed under grave and sudden provocation---Accused had not made confession of Qatl-i-Amd, as such, before the Court and although he had admitted to have killed the two deceased but that admission was to be treated not in isolation of but in conjunction with his specific plea that he was provoked and it was an act of grave and sudden provocation--;Statement of accused in the absence of any substantive evidence against him on record was accepted in its entirety in consequence whereof his conviction under S.302(a), P.P.C. for the murder of male deceased was converted to one under S.302(c), P.P.C.--­Accused, however, had no right to take law in his own hands in the name of "Ghairat" and he deserved no leniency and he was awarded 25 years' R.I. under S.302(c), P.P.C. for murder could not be condoned on the ground of 'Siah Kari' or 'Kayo Kari'---Other murder committed by the accused of his wife was also not liable to Qisas i.e., death, as the daughter of the deceased being the daughter of the accused was his direct descendant and for the said murder he was convicted under S.308, P.P.C. and sentenced to suffer 14 years' R. I: as 'Tazir' and to pay Diyat amount of Rs.2,84,859 to the heirs of the deceased.

Faiz v. The State 1983 SCMR 76; Sudan Khan v. Sher Khan PLD 1991 SC 520; PLD 1983 SC 32; Federation of Pakistan v. Gul Hassan PLD 1989 SC 633; Abdul Haq v. State PLD 1996 SC 1; Abdul Zahir v. State 2000 SCMR 406; Muhammad Hanif's case 1992 SCMR 2047; Ali Muhammad's case PLD 1996 SC 274; Al-Qur'an, Surah Nut, XXIV, Verses 4 to 9; Rasool Bakhsh v. The State 2000 SCMR 731 and PLD 2001 SC 96 ref.

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

----S. 302(c)---Scope of S.302(c), P.P.C.---Appreciation of evidence---Grave and sudden provocation---By and large all the cases of grave and sudden provocation would not ipso facto fall within the purview of S.302(c), P.P.C. particularly those of Qatl-i-Amd of wife, sister or other very close female relatives at the hands of males on the allegation of "Siyah Kari".

Abdul Zahir v. The State 2000 SCMR 406 ref.

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

----S. 302---Constitution of Pakistan (1973), Arts.9 & 8(1)---Honour killing amounting to Qatl-i-Amd---Legally and morally nobody has any right nor can any body be allowed to take law in his own hands to take the life of any body in the name of "Ghariat"---Neither the law of the land nor the religion permits the so-called honour killing which amounts to murder (Qatl-i-Amd) simpliciter---Such iniquitous and vile act is violative of the fundamental right as enshrined in Art.9 of the Constitution which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Art.8(1) of the Constitution.

PLD 2001 SC 96 ref.

Ju;ed Iqbal for Appellant (in Criminal Appeal NO.(S)1'01 and (Q)200 of 2000).

Haji Ghulam Mustafa Mengal, Asstt. A.-G. for the State (in Criminal Appeals Nos.(S)101 and (Q)200 of 2000).

Haji Ghulam Mustafa, Asstt. A.-G. for the State (in Murder Reference No.(S)12 of 2000).

Javed Iqbal for the Accused (in Murder Reference No.(S)12 of 2000).

Date of hearing, 7th April, 2001.

P L D 2001 Quetta 103

Before Aman Ullah Khan and Ahmed Khan Lashari, JJ

DURAN BIBI---Appellant

Versus

JEHANZAIB and others---Respondents

Criminal Acquittal Appeal No. 187 of 1999, decided on 19th March, 2001.

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

----Ss. 302 & 308---Criminal Procedure Code (V of 1898), S. 417(2-A)--­Appeal against acquittal---Principles enlisted.

Following are the principles with regard to appeal against acquittal:

(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the reappraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carried with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence.

(2) The acquittal will not carry the second presumption and will also thus, lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.

(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumption keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principles as noted above and for no other reason.

(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of injustice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.

Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11 ref.

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

----S. 302---Appreciation of evidence---Solitary eye-witness---Conviction can be based on the statement of solitary eye-witness, provided it inspires confidence and its intrinsic worth rings true and satisfies the conscience of the Court.

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

----S. 302---Appreciation of evidence---Interested witness---Interested witness is one who has motive to falsely implicate any person in the commission of the offence.

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

----Ss. 302 & 308---Criminal Procedure Code (V of 1898), S.417(2-A)--­Appeal against acquittal---Reasons given by the Trial Court for acquitting the accused were shocking and ridiculous and were based on misreading of evidence causing prejudice to the prosecution case---Complainant, mother of deceased, being the natural witness of the incident had given very natural account of the occurrence which remained unshaken in lengthy cross­examination, but the Trial Court had discarded the same on a wrong assumption of law---Deceased having been fired at from a very close range and the accused being already known to the complainant, no question of mis­identity or substitution of accused could arise which by itself was a very rare phenomenon moreso when the defence had not questioned the statement of complainant as to how she identified the accused in darkness---Prosecution, thus, had proved its case against accused beyond any shadow of doubt--­Accused was proved on record to have been married to the deceased and a daughter was born in wedlock who was survived by the accused---Impugned judgment of acquittal was consequently set aside---Accused was convicted under S.308, P.P.C. and sentenced to suffer 14 years' R.I. in circumstances.

Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11 ref.

Amanullah Kanrani for Appellant.

Haji Akhtar Zaman, Syed Ayaz Zahoor for Respondent.

Mrs. Ashraf Abbas for the State.

Dates of hearing: 13th, 14th and 15th November, 2000

P L D 2001 Supreme Court 1

Present: Irshad Hasan Khan, C. J. and Ch. Muhammad Arif J

DIRECTOR FOOD, N.-W.F.P. and another---Petitioners

versus

Messrs MADINA FLOUR AND GENERAL MILLS (PVT.) LTD. and 18 others---Respondents

Civil Petitions for Leave to Appeal Nos. 366-P, 372-P, 373-P, 374-P, 375-P, 376-P, 381-P, 382-P, 383-P, 384-P, 393-P, 394-P, 395-P, 396-P, 397-P, 398-P, 399-P, 400-P and 401-P of 2000, decided on 12th October, 2000.

(On appeal from the judgment passed by Peshawar High Court, Peshawar in Writ Petitions Nos.837/99,. 1881/98, 740/99, 1873/99, 1070/98,1972/99,1208/99,1275/99, 110/2000,1326/98, 1468/98, 714/99, 1219/99, 1273/99, 713/99, 991/98, 1001/99 and 1199/1999, dated 1-8-2000).

(a) North-West Frontier Province (Supply of Wheat to Flour Mills) Act (XIV of 1999)--

----Ss. 2(c) & 3---Constitution of Pakistan (1973), Arts. 18 & 25---Vires of statute---Provisions of S.2(c) & S.3 of North-West Frontier Province (Supply of Wheat to Flour Mills) Act, 1999 are ultra vires of the Constitution being in conflict with its Arts. 18 & 25 as the same give unfettered and arbitrary powers of determination of wheat quota to the Government without laying down the methodology or guidelines for such determination.

(b) North-West Frontier Province (Supply of Wheat to Flour Mills) Act (XIV of 1999)--

----S. 2(a)---Constitution of Pakistan (1973), Arts.18 & 25---Vires of statute---Provisions of S.2(a), North-West Frontier Province (Supply of Wheat to Flour Mills) Act, 1999 are not violative of the Constitution.

(c) Discretion--

----General principles---Discretionary decision is to be made according to rational reasons which means that there be findings of primary facts based on good evidence and decisions. about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner---Actions which do not meet these threshold requirements are arbitrary and might be considered as a misuse of powers.

Government of N.-W.F.P. through Secretary v. Mejee Flour and General Mills,. (Pvt.) Ltd., Mardan 1997 SCMR 1804 and N.-W.F.P. through Secretary Food, Agriculture and Livestock Department v. Messrs Fawad Flour Mills Civil Petitions Nos.284-P and 329-P of 1997 ref.

(d) North-West Frontier Province (Supply of Wheat to Flour Mills) Act (XIV of 1999)--

----Ss. 2(c) & 3---Constitution of Pakistan (1973), Arts. 141, 18 & 25 read with Fourth Sched.---Provincial Legislature though was competent to promulgate appropriate legislation for abolishing wheat quota or to regulate the supply of the same provided the Fundamental Rights contained to the Constitution were not violated and threshold-requirements of exercise of discretion were met.

Government of N.-W.F.P. through Secretary v. Mejee Flour and General Mills (Pvt.) Ltd., Mardan 1997 SCMR 1804 and N.-W.F.P. through Secretary Food, Agriculture and Livestock Department v. Messrs fawad Flour Mills Civil Petitions Nos.284-P and 329-P of 1997 ref.

(e) North-West Frontier Province (Supply of Wheat to flour Mills) Act (XIV of 1999)--

----S. 2(a)---Appointed day---Fixation of the outer limit/date having been linked with the date on which the Act comes into operation i.e. 13-10-1999 was clearly to the benefit of those individuals whose mills were in existence.

Imtiaz Ali, Additional Advocate-General, N.-W.F.P. for Petitioners.

Zahoor Qureshi, Advocate-on-Record for Respondents (in C.Ps. Nos.366, 372 to 376, 381 to 384, 399 and 400-P of 2000).

Date of hearing: 12th October, 2000.

P L D 2001 Supreme Court 7

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

ANWAR SAIFULLAH KHAN---Petitioner

versus

THE STATE and 3 others---Respondents

Civil Petition for Leave to Appeal No.2608-L of 2000, decided on 22nd November, 2000.

(On appeal from the order dated 17-10-2000 of the Lahore High Court, Lahore in Writ Petition No.20242 of 2000).

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

----S. 9(a)(vi) [as amended by National Accountability Bureau (Second Amendment) Ordinance (XXIV of 2000)]---Constitution of Pakistan (1973), Arts. 185(3) & 12---Corrupt and corrupt practices---Contention was that S.9(a)(vi) of the National Accountability Bureau Ordinance, 1999 (as amended) created a new offence which could not be given retrospective effect which course would be violative of Art. 12 of the Constitution---Validity---' Proceedings for accountability pursuant to various orders made and ,Orders/Laws promulgated by the Chief Executive or any person exercising powers or jurisdiction under his authority and the pending trials/proceedings could continue subject to Supreme Court decision in Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869.

Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869 ref.

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

----S. 9(a)(vi)---[as amended by National Accountability Bureau (Second Amendment) Ordinance (XXIV of 2000)] & S. 14(d) [as amended by National Accountability Bureau (Amendment) Ordinance (IV of 2000)]--­Criminal Procedure Code (V of 1898), S.265-K---Constitution of Pakistan (1973), Arts.185(3) & 199---Petition for leave to appeal---Corrupt and corrupt practices---Accused challenged order of dismissal of his application under S.265-K, Cr.P.C. for acquittal by Accountability Court before High Court under its- jurisdiction under Art. 199 of the Constitution which was dismissed---Validity---Case was fixed for final arguments before the Accountability Court at a very near future---Supreme Court declined expressing any opinion as to the merits of the case lest same may prejudice the case of either side and exercised judicial restraint by not dilating upon the submissions made by the petitioner about merits of the case as it was wrong, in principle, to interfere with the impugned order passed by the High Court for the simple reason that law abhorred fragmentary/piecemeal resolution of causes---Principles.

Interference by Supreme Court at the stage i.e., when the case was fixed for final arguments before the Accountability Court, would defeat the ends of justice requiring final determination, after completion of the preliminaries. If finally an adverse order was passed against the petitioner he shall be within his right to approach the appropriate forum under the Ordinance, for available relief on available grounds. Any interference by Supreme Court by rendering judgment on the merits of the controversy involved herein arising out of the references pending in the Accountability Court, would have the effect of curtailing the remedy of appeal to an aggrieved party before the appellate forum.

Shahid Hamid„ Advocate Supreme Court and A. Aasim Jafri, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 21st November, 2000.

P L D 2001 Supreme Court 13

Present: Abdur Rehman Khan and Mian Muhammad Ajmal, JJ

Rana MUHAMMAD TUFAIL --- Petitioner

versus

MUNIR AHMED and another---Respondents

Civil Petition No. 1169 of 1999, decided on 19th July, 2000.

(On appeal from the judgment dated 30-4-1999 of the Lahore High­ Court, Lahore, passed in Civil Revision No. 574-D/99).

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit--­TaIab-e-Muwathib4t---Delay of four hours in making such Talab---Effect-=­Courts below had dismissed the pre-emption suit for the reason that there was delay in making Talab-e-Muwathibat---Contention by the pre-emptor was that there was only delay of four hours in making the Talab-=-Validity--­Requirement of law was that the Talab was to be made immediately in the sitting or meeting in which the prospective pre-emptor had come to know of the sale which he intended to pre-empt ---Where the pre-emptor failed to make Talab-e-Muwathibat in the prescribed manner then the suit was liable to be dismissed irrespective of the fact that the pre-emptor made such Talab after one hour or one day of the sitting or meeting in which the pre-emptor had come to know about the sale---Leave to appeal was refused by Supreme Court.

Ali Hassan Gilani, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner., .

Nemo for Respondents.

Date of hearing: 19th July, 2000.

P L D 2001 Supreme Court 14

Present: Ajmal Mian, C. J., Munawar Ahmed Mirza and Ch. Muhammad Arif, JJ

Messrs WESTERN BRAND TEA, KARACHI---Petitioner

versus

Messrs TAPAL TEA (PVT.) LIMITED, LAHORE and another---Respondents

Civil Petitions for Special Leave to Appeal Nos.407-L and 408-L of 1998.

(On appeal from the judgments dated 26-12-1997 of the Lahore High Court, Lahore, passed in F.A.O. No.280 of 1997 and 281 of 1997).

(a) Trade Marks. Act (V of 1940)---

----Ss. 6 & 10---Constitution of Pakistan (1973), Arts.185(3) & 199--­Registered trade mark, infringement of---Wrappers of the commodities having resemblance providing similarity of design, scheme and colour---Both the parties were dealing in same commodity and the respondents filed suit against petitioner for infringement of their trade mark---Trial Court as well as High Court accepted the claim of the respondents and restrained the petitioner from using trade mark and wrappers having design similar to that of the respondents---Validity---Cardinal principle of law and said commercial trading was that deceptive measures should not be adopted to adversely affect goodwill and recognition earned by other organizations in trading similar and identical commodity---Bare visual look on the wrappers wherein the petitioners packed their product, had. reflected complete resemblance providing similarity of design, scheme and colour which could certainly affect the products of the respondents---Illiterate customers could be easily misled on looking at wrappers---Where both the Courts below had appropriately considered relevant legal and factual aspects, Supreme Court refused to interfere. in the judgments of both the Courts below as the same did not suffer from any material defect or legal infirmity--=Discretionary Constitutional jurisdiction could not be used to perpetuate deception---Leave to appeal was refused.

Mercantile Five and General Insurance Company of Pakistan v. Imam and Imam Limited 1989 CLC 2117 and Muhammad Zahoor v. Lal Muhammad 1988 SCMR 322 ref.

(b) Constitution of Pakistan (1973)---

----Art.. 199---Constituional jurisdiction of High Court---Scope--­Discretionary Constitutional jurisdiction could not be used to perpetuate deception.

Arif Chaudhry, Advocate Supreme Court and Ch.Talib Hussain, Advocate-on-Record for Petitioner.

M. Hussain Nakashbandi, Advocate Supreme Court and Abul Aasim Jafri, Advocate-on-Record for Respondents.

Date of hearing: 5th January, 1999.

P L D 2001 Supreme Court 18

Present: Qazi Muhammad Farooq and Mian Muhammad Ajmal, JJ

Haji Rana MUHAMMAD SHABBIR AHMAD KHAN---Petitioner

versus

FEDERATION OF PAKISTAN through Attorney-General for Pakistan and another---Respondents

Civil Petitions for Leave to Appeal No.834 of 1999, decided on 24th July, 2000.

(On appeal from the judgment of the Lahore High Court, Multan Bench, dated 15-3-1999 passed in Writ Petition No.820 of 1995).

(a) Constitution of Pakistan (1973)---

----Art. 2A---Injunctions of Islam, enforcement of---Scope---After addition of Art.2A in the Constitution, the Holy Qur'an and Sunnah have become the supreme law of Pakistan and the Courts are obliged to enforce the existing laws with such adaptations as are necessary in the light of the Holy Qur'an and Sunnah to uphold the holy provisions thereof---Every organ of the State is duty bound to act and implement the Islamic principles as enshrined in the Holy Qur'an and Sunnah.

(b) Constitution of Pakistan (1973)---

----Arts. 2A, 31, 203-D & 227---Injunctions of Islam, implementation of--­Laws repugnant to Injunctions of Islam---Validity---No law repugnant to the Holy Qur'an and Sunnah can be enacted and all existing laws have to be brought in conformity with the Injunctions of Islam as enunciated in the Holy Qur'an and Sunnah---Where existing laws or any provision thereof, on examination by the Federal Shariat Court are declared repugnant to the Injunctions of Islam, such laws or provisions thereof cease to have effect on tile day on which the decision of the Court takes effect.

(c) Constitution of Pakistan (1973)---

----Arts. 2A & 185(3)---Inheritance---Customary law ---Applicability--­Constitutional petition filed by the petitioner for deciding the cases of inheritance according to customary law was dismissed by the High Court as the same was against the Injunctions of Islam---Validity---Prayer of the petitioner being not only against the Injunctions of the Holy Qur'an and Sunnah but against the Constitution as well, therefore, the same was fallacious which was rejected---Leave to appeal was refused.

Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 24th July, 2000.

P L D 2001 Supreme Court 23

Present: Rana Bhagwan Das, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

MOOSO through Legal Heirs and others---Petitioners

versus

ALLAHDITO through Legal Heirs and 7 others---Respondents

Civil Petitions Nos.160-K, 161-K and 162-K of 1999, decided-on 7th August, 2000.

Pakistan (Administration of Evacuee Property) Act (XII of 1957)---

----Ss. 3 & 7---Constitution of Pakistan (1973), Art.185(3)---Evacuee property---Claiming ownership over barrage land---Concurrent findings of fact by Courts below---Suit land was not fully paid up and no transfer order was ever issued in favour of evacuee grantee---Suit filed by petitioner was dismissed by the Trial Court and appeal before the Appellate Court met the same fate---Judgments and decrees of both the Courts below were upheld by High Court in exercise of revisional jurisdiction---Validity---No property rights in the suit land were passed in favour of original (evacuee) grantee and land in question was not available for transfer to the claimant under the Settlement Scheme---Where the claimant had subsequently transferred the suit land to the petitioner, such transfer conferred no right, title or interest in favour of the petitioner---Concurrent findings of three Courts below did not suffer from misreading, non-reading of evidence and legal infirmity--­Judgments of the Courts below called for no interference---Leave to appeal was refused.

Azam Ali and others v. The Custodian of Evacuee Property PLD 1968 Lah. 148; Isab Khan v. Muhammad Sher PLD 1975 Lah. 833 and Munira Bibi and others v. Member, Board of Revenue, Balochistan PLD 1978 Quetta 121 ref.

Nuruddin Sarki, Advocate Supreme Court for Petitioners.

G.M. Qureshi, Advocate Supreme Court for the Private Respondents.

Ainuddin Khan, Addl. A.-G. Sindh for the State.

Date of hearing: 7th August, 2000.

P L D 2001 Supreme Court 26

Present: Rana Bhagwan Das and Javed Iqbal, JJ

Mst. SHAHIDA and another---Petitioners

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LARKANA through Chairman, at Larkana and 5 others---Respondents

Civil Petitions for Leave to Appeal Nos.707-K and 708-K of 1999, decided on 26th July, 2000.

(On appeal from the judgment dated 6-10-1999 of the Sindh High Court, Karachi, passed in Constitutional Petitions Nos.D-736 and D-737 of 1999).

(a) Calendar Board of Intermediate and Secondary Education (Larkana)-

----Vol. III, R.22---Constitution of Pakistan (1973), Art.185(3)--­Notification of rectified mark sheets---Tampering with mark sheets and substituting actual marks by fictitious marks---Cancellation of bogus mark sheets---Candidates with the connivance of the staff of the Board managed to tamper with the record of the Board and received the mark sheets with inflated marks---Candidates, on the basis of such mark sheets, managed to get admissions in medical college---Board after scrutiny, cancelled bogus mark sheets and a notification of actual mark sheets was issued---Admissions of the candidates in medical college were cancelled on account of the notification issued by the Board---Constitutional petition filed by the candidates was dismissed by High Court---Contention by the candidates was that Board had no lawful authority to issue the notification and the same was without any legal effect--Validity---Board was fully competent to rectify any error in the result or mark sheets irrespective of the fact whether the same was notified or not---Question of competency of the Board could not be agitated as the correction in the ledger containing details of marks was made on the basis of admitted authentic Award List---Board could rectify any mistake and after detection of fraud the Board could not behave like a silent spectator---Admissions of the candidates were cancelled after affording proper opportunity of hearing including show-cause notice and after compliance with all the legal requirements---Action taken by the Board was neither arbitrary nor derogatory to law and the same did not warrant any interference---Judgment of the High Court was free from any legal infirmity and did not call for any interference---Keeping in view the fraudulent conduct of the candidates, leave to appeal was refused by Supreme Court.

AIR 1953 Orissa 121 ref.

(b) Constitution of Pakistan (1973)--

----Art. 199---Constitutional petition---Educational institution---Principle, "he who seeks equity must do equity"---Applicability---Admissions in medical college on the basis of forged and bogus mark sheets---Such admissions of the candidates were cancelled after the scrutiny of the result carried out by the Board of Intermediate and Secondary Education--­Candidates had obtained higher marks with the connivance of Board's officers/officials by committing fraud, forgery and cheating---Discretionary relief under Constitutional jurisdiction could only be claimed by a person having a bona fide claim and coming to Court with clean hands for enforcement of a legal right obtained in a lawful manner---Courts must not be used for retention of ill-gotton gains or perpetuation of an illegality--­Candidates, therefore, were not entitled to seek any relief on' the basis of their own wrongful and dishonest act as a person coming to Court with sullied hands was not entitled to discretionary remedy---Courts were to proceed with the principle "he who seeks equity must do equity"---High Court had rightly dismissed the Constitutional petition of the candidates in circumstances.

Gul Bahar Korai, Advocate Supreme Court for Petitioners.

Nooruddin, Advocate Supreme Court and A.A. Siddiqui, Advocate­-on-Record for Respondent No.1.

Date of hearing: 26th July, 2000.

P L D 2001 Supreme Court 31

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

ABDUL RAUF and others---Appellants

versus

Mrs. SHEREEN HASSAN ---Respondent

Civil Appeals No. 157 and 158 of 1999, decided on 11th July, 2000.

(On appeal from the judgment dated 27-5-1999 of the High Court of Sindh, Karachi passed in F.R.As. Nos. 155 and 156 of 1997 respectively).

(a) Sindh Rented Premises Ordinance (XVH pf 1979)--

----S. 15(2)(vii)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to examine; whether the word "children" in S.15(2)(vii) of Sindh Rented Premises Ordinance, 1979, included a married daughter and whether landlord seeking eviction of the tenant on the ground of personal requirement of his married daughter, was required to bring on record his explanation, as to, why he was providing accommodation to his married daughter and her husband and children.

(b) Words and phrases---

Concise Oxford Dictionary, IXth Edn. ref.

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

----S. 15(2)(vii)---Word "children"---Scope---Even a married son or ,married daughter comes within the definition of word "child" ---Provision of S.15(2)(vii) of Sindh Rented Premises Ordinance, 1979, does not say that the children must be dependent upon the landlord.

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

----S. 15(2)(vii)---Bona fide need of married daughter of landlord--­Concurrent findings of fact by the Courts below ---Ejectment was sought on such ground and the same was recognized by the Rent Controller as well as by the High Court---Validity---Where the eviction of the premises could be sought on the personal bona fide need of a married son of the landlord, the same could be sought on the same principle for the married daughter of the landlord when both fell . within the same category viz. children---No justification to interfere with the concurrent judgments of the Courts below.

Mst. Anwar Jehan v. Ismail Khan 1984 CLC 2849 and Abdul Aziz v. Ali Muhammad PLD 1979 Note 135 at p. 97 distinguished.

Haji Lal Bux v. Mistri Allah Dad 1980 CLC 984; Mst. Razia Begum v. Pakistan Medical and General Store 1982 CLC 659 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

(e) Muslim Law---

----Maintenance---Duty of the parents to provide maintenance to their children and it is moral obligation upon the parents to provide the means to support the life of their children.

(f) Words and phrases---

----"Maintenance"---Defined.

Concise Oxford Dictionary ref.

Naraindas C. Motiani, Advocate Supreme Court and Advocate-on­-Record for Appellants (in both Appeals).

S.M. Abbas, Advocate-on-Record for Respondent (in both Appeals).

Date of hearing : 11th July, 2000

P L D 2001 Supreme Court 38

Present: Mian Muhammad Ajmal, Javed Iqbal and Abdul Hameed Dogar, JJ

IFTIKHAR ALI ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 213 of 1998, decided on 11th August, 2000.

(On appeal from the ju4ment of the Peshawar High Court, Peshawar dated 18-3-1998 passed in Cr. A. 65 of 1996).

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

----Ss. 302 & 353---Constitution of Pakistan (1973), Art. 185(3)--­Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation (I of 1975), S.12---Leave to appeal was granted by Supreme Court to accused to consider the points that death penalty could not be imposed on the accused as the defunct Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation (I of 1975) was in force on the day of commission of the offence and under its S.12 maximum sentence awardable for the murder was imprisonment for life; that. two witnesses relied upon by the prosecution were not named as eye-witnesses in the F.I.R.; that the alleged eye-witness had been examined after five days of the occurrence while an eye-witness at whose behest the site plan was prepared had not been shown therein which had made the prosecution case doubtful; that the testimony of prosecution witnesses did not inspire confidence due to their unnatural and inconsistent conduct and that the identification parade of the accused having not been conducted through the eye-witnesses, his identity could not be established.

(b) Interpretation of statutes-

---- Retrospectivity---Change of forum---Procedural matters---Retrospective effect---Change of forum from Tribunal/Deputy Commissioner to Sessions Court-!.-Effect ---Mode of trial and the manner of taking evidence etc. being matters of procedure, would have retrospective application---If, however, in the process, any existing rights or giving of retroactive operation causes inconvenience or injustice, then the Courts will not, in the case of procedural statute, favour an interpretation giving retrospective effect to the statute.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Federation of Pakistan v. Muhammad Siddique PLD 1981 SC 249; Chairman, PIAC v. Nasim Malik PLD 1990 SC 951; Gul Hassan v. Allied Bank of Pakistan 1996 SCMR 237 and Muhammad Afzal v. Karachi Electric Supply Corporation 1999 SCMR 92 ref, (c) Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation (1 of 1975)--

----Ss. 11 & 12---Bar of imposition of death sentence---Rationale of---Deputy Commissioner was barred under the PATA Regulation to impose death sentence because he while convicting and sentencing the accused had to depend on the findings/report of the Tribunal and he himself could not try the accused.

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

----S. 302---Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation (I of 1975), Ss. 11 & 12---Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation (II of 1994), S.5(2)--­Sentence of death awarded to accused---Validity---Punishment prescribed under S.302, P.P.C. for Qatl-i-Amd was in force on the day of commission of the offence by the accused---Special provisions for trial of certain offences 'were, however, made to meet special requirements of Provincially Administered Tribal Areas of Chitral, Dir, Swat and Malakand Protected Areas where trial was conducted by Tribunal constituted by the Deputy Commissioner and on its report or findings the Deputy Commissioner would convict and sentence the accused to any penalty, prescribed for the offence except sentence of death---Although the punishment of death was provided in law for Qatl-i-Amd for the offender which could be imposed by any competent Court, but in. PATA the Deputy Commissioner in Jirga trials was barred to pass capita: punishment---After the change of forum from Tribunal/Deputy, Commissioner to that of the Courts of competent jurisdiction, the punishment under S.302, P.P.C. retrained the same and such Courts upon whom no restrictions had been imposed could pass any sentence for the offence prescribed by law including death sentence for the offence of Qatl-i-Amd---Sessions Judge/Zilla Qazi was competent in the case to award capital punishment to the accused as the prosecution had proved its case against him beyond any shadow of doubt---Punishment awarded to the accused by Trial Court under S.302(a), P.P.C. and altered by the High Court in appeal to S.302(b), P.P.C. confirming his death sentence, therefore, warranted no interference. by Supreme Court---Appeal was dismissed accordingly.

Abdul Samad v. Painda Muhammad PLD 1997 Pesh. 35; Shahzada Gul v. Addl. Secretary, Home Government of N.-W.F.P., Peshawar and others 1999 SCMR 1028; Criminal Appeal No.242 of 1997 (unreported); Adrian Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Federation of Pakistan v. Muhammad Siddique PLD 1981 SC 249; Chairman, PIAC v. Nasim Malik PLD 1990 SC 951; Gul Hassan v. Allied Bank of Pakistan 1996 SCMR 237 and Muhammad Afzal v. Karachi Electric Supply Corporation 1999 SCMR 92 ref.

M. Zahoorul Haq, Senior Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Appellant.

Qazi Rashidul Haq, Addl. A.-G., N.-W.F.P. for the State.

Date of hearing: 12th May, 2000.

P L D 2001 Supreme Court 49

Present: Rana Bhagwan Das and Syed Deedar Hussain Shah, JJ

ABDUL HAMID and 3 others‑‑‑Appellants

versus

Syed ABDUL QADIR and others‑‑‑Respondents

Civil Appeals Nos. 981 to 984. of 1998, decided on 9th August, 2000.

(On appeal from the judgment of the High Court of Sindh dated 18‑2‑1998 passed in F.R.As. Nos.641/1994, 25/1995, 680/1994 and 681/1994 respectively).

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

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Ejectment proceedings‑‑‑Landlord and tenant, relationship of‑‑‑Leave to appeal was granted by Supreme Court to examine question relating to relationship of landlord and tenant.

(b) Practice and procedure‑

‑‑‑‑ Party who knocks the door of the Court is expected to be diligent and vigilant to keep track of proceedings and not to wait for notice of the Court.

(c) Counsel and client‑

‑‑‑‑Relationship‑‑‑Failure of counsel to inform his client about proceedings of his case‑‑=Effect‑‑‑Where client was kept in dark by his counsel, and matter was between the client and the counsel and benefit of the same could not be extended to the disadvantage of opposite‑party.

(d) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Title of premises disputed‑‑‑Former owner of the premises put in appearance before the Rent Controller and denied execution of sale deed in favour of the landlord (subsequent owner)‑‑‑Landlord despite specific direction by the Rent Controller could not produce the original title/documents as the same were pledged with a Bank against which the landlord had received a loan‑‑‑Rent Controller decided the matter in favour of the landlord without having referred the parties to Civil Court‑‑Ejectment order passed by Rent Controller was upheld by High Court‑‑‑Contention by tenant was that both the Courts below were supposed to refer the matter to Civil Court for declaration qua title in view of dictum laid down by Supreme Court in Rehmatullah v. Ali Muhammad 1983 SCMR 1064‑‑‑Validity‑‑­Where original documents of title were not produced before the Rent Controller for the reasons explained at the bar, neither the Rent Controller nor the High Court committed any illegality or failed to exercise jurisdiction vested in them by not adopting the course suggested in Relamatullah's case‑‑­Orders of both the Courts below were not interfered with by the Supreme Court.

Rehmatullah v. Ali Muhammad 1983 SCMR 1064 distinguished.

(e) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑‑‑‑S. 15‑‑‑Default in payment of monthly rent‑‑‑Landlord and tenant, relationship of‑‑‑Concurrent findings of two Courts below‑‑‑Dispute regarding ownership of the premises arose b6tween the previous owner and the landlords (present owners) during the ejectment proceedings‑‑‑Despite receipt of notice of change of ownership from the landlords (present owners), tenants kept on paying the rent to the previous owner‑‑‑Rent Controller allowed the ejectment petition in favour of the landlords (present owners) which findings of the Rent Controller were upheld by the High Court‑‑­Validity‑‑‑Where relationship of landlord and tenant between the parties had been established by concurrent findings of fact and the tenants failed in their duty to pay rent due to the present owners, tenants had committed a deliberate and wilful default ‑‑‑Ejectment of the tenants was rightly allowed and the same did not admit of any other view.

Rehmatullah v. Ali Muhammad ]983 SCMR 1064 distinguished.

Pervaiz Akhtar v. Dr.Muhammad Ahsan PLD 1988 SC 734 and Muhammad Ishaq v. Khurshid Alam PLD 1989 SC 353 ref.

Muhammad Ashraf Bhatti, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Appellants.

Abdul Rahim Kazi, Advocate Supreme Court and Miss Wajahat Niaz, Advocate‑on‑Record for Respondents Nos. 1 to 3.

Shafaat Hussain, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Respondent No.4.

Dates of hearing: 7th and 9th August, 2000

P L D 2000 Supreme Court 57

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

YUKONG LTD. SOUTH KOREAN COMPANY, SEOUL, SOUTH KOREA‑‑‑Petitioner

versus

M.T. EASTERN NAVIGATOR and 2 others‑‑‑Respondents

Civil Petition for Leave to Appeal No.417‑K of 1999, decided on 23rd June, 2000.

(On appeal from the judgment dated 29‑4‑1999 of High Court of Sindh passed in Admiralty Appeal No. 1 /97).

(a) Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)‑‑‑

‑‑‑‑S. 4(2)‑‑‑Action in rem against ship or property‑‑‑Meaning and scope‑‑­Action in rem and action in personam‑‑‑Distinction‑‑‑Action in rem primarily is against the property which eventually may be arrested and sold out to satisfy the claim‑‑‑Such action is resorted to in respect of any claim or question within the admiralty jurisdiction irrespective of the fact that the same is in the nature of a maritime lien or not‑‑‑Such proceedings are in fact, against ship‑‑‑Action in rem and action in personam are distinct inasmuch as in case of former, proceeding is against ship while in the latter case it is a proceeding inter parses.

(b) Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)‑‑‑

‑‑‑‑Ss. 3 & 4‑‑‑Arrest of vessel‑‑‑Object‑‑‑Making of specific prayer for arrest of vessel in the body of plaint‑‑‑Validity‑‑‑Arrest of vessel is only obtained for security purposes ‑‑‑Where the security is furnished, the vessel is released‑‑‑No legal requirement either in the English Law or in Pakistani Law to make prayer for arrest of the vessel in body of the plaint.

British Shipping Laws, Vol. 14, Maritime Liens by D.R. Thomas, p.65; The Deichland (1988), Lloyds Law Rep. 454; Monica S (1967) 2 Lloyds Law Rep. 113; Frecia Del Nord (1989) Vol. 1 Lloyds Law Rep. 388 and In re: ARO Co. Ltd. (1980) Ch. 196 ref.

(c) Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)‑‑‑

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Admiralty suit‑‑‑Maintainability‑‑‑Jurisdiction of High Court‑‑‑Scope‑‑Plaintiff filed the admiralty suit against the vessel on the basis of its being mortgaged with them‑‑‑High Court in Admiralty jurisdiction decreed the suit and appeal against the judgment was dismissed by Division Bench of High Court‑‑­Validity‑‑‑Admiralty jurisdiction of High Court was to hear and determine the causes, questions or claims enumerated in S.3(2)(a) to (r) of Admiralty Jurisdiction of High Courts Ordinance, 1980‑‑‑Valid jurisdiction included any claim in respect of a mortgage or a charge on ship or any share therein‑‑­Present suit was filed on the basis of mortgage and word "mortgage" was repeatedly used in the plaint and in the title of the plaint‑‑‑In prayer clause there was 'request for auction and the auction took place on the request of the plaintiffs‑‑‑Suit of the plaintiffs was covered by Ss.3(2) & 4(2) of Admiralty Jurisdiction of High Courts Ordinance, 1980, and the same was maintainable‑‑‑High Court relied upon the cases referred by the plaintiffs in their true perspective and neither enlarged nor narrowed the scope of the dictum laid down therein‑‑‑Leave to appeal was refused by the Supreme Court.

Messrs Ahmed Investment Ltd., Karachi v. M.V. 'Sunrize IV' and another PLD 1980 Kar. 229; Bangladesh Shipping Corporation v. M.V. 'Nedon' and another PLD 1981 Kar. 246; The Republic of India v. India Steamship Co. (1997) WLR 818 and The Banco's case (1971) IAER 524 ref.

(d) Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)‑‑‑

‑‑‑‑Ss. 3 & 4‑‑‑Admiralty suit‑‑‑Action in rem ‑‑‑Making the real owners as party to such suit‑‑‑Effect‑‑‑Justification‑‑‑Action in rem is against ship without making the same as defendant‑‑‑Real defendants can be described as owner of or persons interested to ship and writ of arrest may be effected by serving the same on the ship‑‑‑Where no appearance is entered by the owner, the action remains as an action in rem operating only against ship and if judgment is passed in favour of the plaintiff, the same can be enforced by sale of ship but not against owner personally or any of his property‑‑‑If the owner or any person interested in the res, enters appearance in consequence of the service and puts his defence, then the person so appearing becomes party to the action and thereby is personally liable for whatever may be decreed against such owner‑‑‑Owners are the real party in a suit in rem, therefore, no objection can be taken for citing the owners as defendants‑‑­Such objection is not sustainable in law.

Muhammad Naeem, Advocate Supreme Court and Shabbir Ghaury, Advocate‑on‑Record for Petitioner.

Qamar Abbas, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Respondents.

Dates of hearing: 22nd and 23rd June, 2000.

P L D 2001 Supreme Court 67

Present: Muhammad Bashir Jehangiri and Iftikhar Muhammad Chaudhry, JJ

Khan MIR DAUD KHAN and others‑‑‑Petitioners

versus

MAHRULLAH and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.219‑Q of 1997, decided on 9th August, 2000.

(On appeal from the judgment dated 4‑8‑1997 of the High Court of Balochistan, Quetta, passed in Civil Revision No.29 of 1996).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art., 185(3)‑‑‑Appeal to Supreme Court‑‑‑Interference with findings of High Court‑‑Scope‑‑‑Where findings of High Court were not shown to be in violation of any provision of Qanun‑e‑Shahadat, 1984, the same did not warrant interference‑‑‑If appraisal of evidence undertaken by High Court and inferences drawn by it were legally sound, same could not be interfered with by Supreme Court in exercise of its jurisdiction under Art. 185.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Reappraisal of evidence by High Court‑‑‑Scope‑‑‑When High Court finds that there is gross misreading of evidence by Trial Court or of Lower Appellate Court and material evidence has been ignored: High Court can undertake reappraisal of evidence in revision.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Reappraisal of evidence by High Court‑‑‑Judgments of two Courts below at variance with each other and failure to point out relevant evidence by Lower Appellate Court while recording divergent views‑‑‑Effect‑‑‑While recording divergent views on the issues involved the Appellate Court had not at all adverted to the evidence pd had only reversed the findings without pointing out the relevant evidence on the issues‑‑‑High Court was justified. in reappraising the evidence in revision.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 3‑‑‑Witness‑‑‑Competency to testify‑‑‑Conditions: capacity to understand and rationally answer the questions put to him, and possession of qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, but where such a witness is not forthcoming, Court may take evidence of any available witness.

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 3‑‑‑Relationship of witness‑‑‑Effect‑‑‑Person related to the party .for whom he appears to prove the fact or is otherwise in peculiar relationship with that party, is not disqualified to testify as witness.

(f) Qanun‑e‑Shahadat (10 of 1984)‑‑

‑‑‑‑Art. 3‑‑‑Witnesses, competency of‑‑‑Conditions for giving testimony by a witness.

Qanun‑e‑Shahadat lay's down the following conditions for giving testimony by a witness:‑‑

(1) Existence of a claim or complaint and the requisition of the testimony in it.

(2) Testimony is to be given before a Court.

(3.) Witness should have the personal knowledge of the facts to be stated except in cases where hearsay evidence is admissible, such as res gestae.

(4) Statement to be given by first uttering the word "Shahadat", e.g. witness first of all to say that: I give Shahadat that .....

(5) Witness remembers the incident or the facts to be deposed.

(6) Witness is able to identify the parties at the time of making the statement; ‑.

(7) Conformity of the statement with the claim.

(8) Statements of witnesses of the parties should be corroboratory of each other and not conflicting.

(9) In Hudood cases excepting Qazf, the fact sought to be proved should not have occurred in the distant past. (Maliki, Shafi'i arid' Hanbali Jurists, however, hold the view to the' contrary and do not consider it as condition for giving evidence).

The State v. Farman Hussain PLD 1995 SC 1 ref.

(g) Qanun‑e‑Shahadat (10 of 1984)‑‑

‑‑‑‑Art. 3‑‑‑Witness, status of‑‑‑Evidence of servants or tenants‑‑‑Value of‑‑?Article 3, Qanun‑e‑Shahadat, 1984 does not contain anything which implies discarding the evidence of either the servants or the tenants of a party in support of the claim put forward by their masters/landlords, as such it depends upon the facts and circumstances of each case to accord truthfulness or otherwise to the, testimony of a witness other than his status, such as a servant or a tenant etc.

Hedaya, Vol. 2, pp.360‑361 and Commentary on Qanun‑e‑Shahadat (10 of 1984) by Justice (Retd.) Khalil‑ur‑Rehman Khan ref.

(h) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. .115‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Revisional jurisdiction of High Court‑‑‑Reappraisal of evidence‑‑‑Contention by petitioner was that High Court instead of reappraising the evidence, in exercise of its revisional jurisdiction, should have remanded the case‑‑?Validity‑‑‑No exception could be taken to the view that had prevailed with the High Court‑‑‑Leave to appeal was refused.

Muhammad Aslam Chishti, Senior Advocate Supreme Court instructed by S.A.M. Quadri, Advocate‑on‑Record for Petitioners.

Salahuddin Mengal, Advocate Supreme Court and Mrs. Ashraf Abbas, Advocate‑on‑Record for Respondents.

Date of hearing: 9th August, 2000.

P L D 2001 Supreme Court 75

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

CHIEF ADMINISTRATOR, AUQAF, SINDH, THANDI SARAK, HYDERABAD and another‑‑‑Petitioners

versus

Mst. MASOOMA‑‑‑Respondent

Civil Petition No.641‑K of 1999, decided on 15th August, 2000.

(On appeal from the judgment dated 20‑8‑1999 of Sindh High Court, Hyderabad in 2nd Civil Appeal No.7 of 1986).

(a) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)‑‑‑

‑‑‑‑Ss. 2(d) & 6‑‑Waqf property‑‑‑Onus of proof‑‑‑Essential elements‑‑­Scope‑‑‑Burden to prove a property as Waqf property is upon the Authorities and the same can be done by showing either dedication of the property as Waqf or use of the property from time immemorial for religious and charitable purpose, or acquisition of the property from income of Waqf property.

(b) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)‑‑‑

‑‑‑‑S. 6‑‑‑Chief Administrator of Auqaf, jurisdiction of‑‑‑Scope‑‑‑Chief Administrator, under the provisions of S.6 of West Pakistan Waqf Properties Ordinance, 1961, can take over and assume administration, control, management and maintenance only of a Waqf property.

(c) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)‑‑‑

‑‑‑‑Ss. 2(d) & 6‑‑‑Waqf property, notification of‑‑‑Scope‑‑‑Mere fact that a party had paid rent for a short period to the Authorities erroneously, would not make a property as Waqf property‑‑‑Such property could not have been notified to be the Waqf property under S.6 of West Pakistan Waqf Properties Ordinance, 1961.

(d) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)‑‑‑

‑‑‑‑Ss. 2(d), 67 & 17‑‑‑Constitution of Pakistan (1973), Art.l85(3)‑‑‑Waqf property, notification of‑‑‑Jurisdiction of Civil Court‑‑‑Failure to pursue remedy as provided under S.7, West Pakistan Waqf Properties Ordinance, 1961‑‑‑Effect‑‑‑Disputed property was originally property of Provincial Government and the plaintiffs had been erroneously paying rent to the Authorities, considering the same as Waqf property‑‑‑Suit was decreed in favour of the plaintiffs by the Civil Court and the decision was upheld by High Court‑‑‑Authorities objected to the exercise of jurisdiction by Civil Court‑‑‑Validity‑‑‑Authorities were not vested with the powers to take over property other than Waqf property under the provisions of West Pakistan Waqf Properties Ordinance, 1961‑‑‑Where the property was not a Waqf property, it was not necessary for the plaintiff to pursue the remedy as provided under,.S.7 of West Pakistan Waqf Properties Ordinance, 1961‑‑­Civil Court being not barred under S.17 of West Pakistan Waqf Properties Ordinance, 1961 from entertaining the suit leave to appeal was refused by Supreme Court.

Inayat Ullah v. M.A. Khan PLD 1964 SC 126 ref.

K.M. Nadeem, Advocate Supreme Court for Petitioners.

Son and Attorney of the Respondent in person.

Date of hearing: 15th August, 2000.

P L D 2001 Supreme Court 79

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das, Syed Deerdar Hussain Shah and Hamid Ali Mirza, JJ

ZEESHAN BHATTI‑‑‑Appellant

versus

MAQBOOL BHATTI and another‑‑‑Respondents

Civil Appeal No. 1232 of 1998, decided on 7th August, 2000.

(On appeal from the judgment dated 20‑10‑1997 of the High Court of Sindh, Karachi in R.A. No.280 of 1994).

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

‑‑‑‑S. 97‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, whether High Court was right in dismissing the suit in spite of the preliminary decree having been passed against the respondent.

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

‑‑‑‑Ss. 97 & 115‑‑‑Preliminary decree‑‑‑Raising and reagitating the pleas already decided prior to passing of preliminary decree‑‑‑Validity‑‑‑Pleas raised and decided prior to passing of preliminary decree could not be reagitated and re‑opened by High Court in revisional jurisdiction on the same grounds.

Shamsuddin v. Imamuddin PLD 1982 Kar. 327 ref.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 30 & 34‑‑‑Civil Procedure Code (V of 1908), S.97‑‑‑Admission‑‑­Suit for dissolution of partnership firm and rendition of accounts‑‑­Admission in respect of liability of one partner in his individual capacity could not bind the co‑partner‑‑‑Suit was filed by a minor who was very close relative of the defendants‑‑‑Preliminary decree was passed by the Trial Court in favour of the plaintiff and the same was not challenged‑‑‑Defendant, after passing of final decree preferred appeal which was dismissed ‑‑‑High Court in exercise of revisional jurisdiction, allowed the revision and set aside the judgments and decrees of both the Courts below‑‑‑Validity‑‑‑Statement of admission of one defendant was a relevant factor in appreciating the evidence adduced by the parties and the Trial Court was justified in passing the decree‑‑‑Judgment of High Court was set aside and those of both the Courts below were maintained.

Friend Engineering Corporation v. Government of Punjab 1991 SCMR 2324; Messrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599 and Conforce Ltd. v. Rafique Industries Ltd. PLD 1989 SC 136 ref.

Attaullah for Appellant in person (with Special Permission).

Ch. Iftikhar Ahmed, Advocate Supreme Court for Respondent No. l

Respondent No. 2: Ex parte.

Date of hearing: 7th August, 2000.

P L D 2001 Supreme Court 84

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

S.M. GHARIB NAWAZ, DACCAWALA‑‑‑Petitioner

versus

SINDH BAR COUNCIL through Secretary, Sindh High Court Building, Karachi

and another‑‑‑Respondents

Civil Petition No. 173‑K of 1999, decided on 16th August, 2000.

(On appeal from the judgment dated 10‑11‑1998 of the High Court of Sindh, Karachi in C.P. D‑37 of 1986).

Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S. 62‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Demand of exemption from Benevolent Fund by Advocate of Supreme Court on the ground that Advocates of Supreme Court were not liable to contribute towards such fund/Scheme as the same was established by Provincial Bar Council for Advocates of High Court and Subordinate Courts in their respective provinces‑‑‑Validity‑‑‑Advocate of High Court on his enrolment with Pakistan Bar Council as an Advocate of Supreme Court would not cease to be the Advocate of High Court and thus would not be entitled to seek exemption from contributing towards the Benevolent Fund established by Provincial Bar Council and as such it would not be appropriate on the part of advocate to practise before High Court, but refuse to contribute towards the Benevolent Fund established for the welfare of advocates on the ground that the advocate had got himself enrolled as Advocate of Supreme Court‑‑‑Such ,demand would neither be justifiable on legal nor on moral plane.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 16th August, 2000.

P L D 2001 Supreme Court 88

Present. Abdur Rehman Khan, Iftikhar Muhammad Chaudhry and Abdul Hameed Dogar, JJ

MIRAJ GUL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 199 of 1994, decided on 3rd October, 2000.

(On appeal from the judgment dated 17‑10‑1994 of the Peshawar High Court, Peshawar, passed in Criminal Jail Appeal No.24 of 1993).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to accused by Supreme Court to reappraise evidence in the case to ensure safe administration of justice.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appraisal of evidence‑‑‑Prosecution evidence was consistent and confidence‑inspiring which was imparted by independent witnesses who had no previous ill‑will, bias or ulterior motive against the accused for his false involvement in the case‑‑‑Accused had been arrested alongwith the weapon of offence after a chase and handed over to police‑‑‑Crime empty picked up from the spot had matched with the gun recovered from the possession of accused at the time of his arrest‑‑‑Conviction of accused was maintained in circumstances‑‑‑Trial Court had not given any reason for imposing lesser penalty than the normal penalty of death which in term of S.367(5), Cr.P.C. was legally required to be imposed‑‑‑High Court too had not considered this aspect of the case‑‑‑Supreme Court although was inclined to enhance the sentence of accused to death, but at such stage it did not consider it proper to do so as the accused had already undergone more than ten years' imprisonment and neither the State nor the complainant had moved the Court for such purpose‑‑‑Sentence of imprisonment for life awarded to accused was upheld accordingly with certain directions for future guidance of Authorities concerned.

Sardar Muhammad Ghazi, Advocate Supreme Court for Appellant.

Rasheedul Haq Qasi, Addl. A.‑G., N.‑W.F.P. for the State.

Date of hearing: 3rd October, 2000.

P L D 2001 Supreme Court 90

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Mian Muhammad Ajmal, JJ

MUHAMMAD SHER alias MALANG ‑‑‑Appellant

versus

THE STATE‑‑Respondent

Criminal Appeal No.375 of 1999, decided on 5th October, 2000.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 1‑10‑1998 passed in Criminal Appeal No.122/1993 and Murder Reference No.309/1993).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Sentence‑‑­Contentions were that the motive in the case was very weak and no reference to the same was even made in the dying declaration of the deceased and that the accused who was 65 years of age at the time of occurrence was now 7.1 years old‑‑‑Leave to appeal was granted to the accused by Supreme Court to the extent of sentence only.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Sentence‑‑‑Sentence of death, propriety of‑‑‑Prosecution case against the accused having been proved beyond any reasonable doubt and there being no mitigating circumstance, weakness or strength of motive or its absence could have no bearing on the question of sentence, because motive was not an essential component of murder‑‑‑Old‑age of accused by itself was not a mitigating circumstance for withholding the normal penalty for murder and imposing lesser sentence‑‑‑Murder committed by the accused was gruesome and his diabolic conduct indicated that old‑age had done no harm to him‑‑‑Appeal was dismissed in circumstances.

Muhammad Ibrahim v.‑ The State 1979 PCr.LJ 275 and Abdul Hakim v. The State 1969 PCr.LJ 913 distinguished.

Amir Gul v. The State 1981 SCMR 182 .ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Sentence‑‑‑Mitigating circumstances‑‑‑Old‑age of the accused by itself was not a mitigating circumstance for withholding the normal penalty for murder and imposing lesser sentence.

Amir Gul v The State 1981 SCMR 182 ref.

Sardar Muhammad Ghazi, Advocate Supreme Court for Appellant.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 5th October, 2000.

P L D 2001 Supreme Court 94

Present: Sh. Riaz Ahmed, Munir A. Sheikh and Rashid Aziz Khan, JJ

MUHAMMAD SHARIF and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Petition No. 150 of 2000, decided on 6th October, 2000.

(On appeal from the judgment of Lahore High Court, Multan Bench, dated 29‑9‑2000 passed in Criminal Appeal No.246/97 and M.R. No.171/97).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Sentence‑‑‑Age of accused‑‑‑Private revenge‑‑‑Not mitigating circumstances‑‑‑Death sentence, propriety of‑‑‑Delay in petition for leave to appeal which was barred by 214 days, was condoned in view of the sentence of death awarded to the accused‑‑‑Ages of 22 years and 27 years of the accused hardly constituted a mitigating circumstance in their favour‑‑‑Accused in taking revenge of murder had killed two persons and injured two others and private revenge also was not a mitigating circumstance‑‑‑Leave to appeal was declined to accused accordingly.

Abdul Aziz Khan Niazi, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing: 6th October, 2000.

P L D 2001 Supreme Court 96

Present Sh. Riaz Ahmed, Rana Bhagwandas and Mian Muhammad Ajmal, JJ

MUHAMMAD AKRAM KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.410 of 1994, decided on 20th September, 2000.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 29‑5‑1993 passed in Criminal Appeal No.669/88).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution‑of Pakistan (1973), Art.185(3)‑‑‑Contention was as to whether implicit reliance could be placed on the prosecution evidence so as to completely rule out the plea taken by the accused‑‑‑Leave to appeal was consequently granted to accused by Supreme Court to re‑examine the prosecution case vis‑a‑vis the defence plea to ensure safe administration of justice.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Arts. 8(1) & 9‑‑‑Honour killing ‑‑‑Violative of Fundamental Rights‑‑‑Prosecution witnesses ‑ were reliable having no motive of their own to charge the accused falsely and their ‑relationship with the deceased alone could not render their testimony unreliable‑‑‑Defence plea of the murder having been committed under grave and sudden provocation appeared to be a cooked up story in order to create a dent in the prosecution version at tire trial‑‑‑Nobody had any right nor could anybody be allowed to take law in his own hands to take the life of anybody in the name of "Ghairat"‑‑‑Neither the law nor the religion permitted the so­called honour killing which amounted to "Qatl‑i‑Amd" simpliciter‑‑‑Such iniquitous and vile act was violative of the Fundamental Right as enshrined in Art.9 of the Constitution which provided that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect was void under Art.8(1) of the Constitution‑‑‑Motive not being directly against the deceased,‑ plea of "Ghairat" could not be deemed to be a mitigating circumstance in the case‑‑‑High Court, through a well‑reasoned judgment, had confirmed the death sentence awarded to accused‑‑‑Appeal was dismissed by Supreme Court in circumstances.

Arshad Ali Chaudhary, Advocate Supreme Court for Appellant.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 20th September, 2000.

P L D 2001 Supreme Court 101

Present: Sh. Riaz Ahmed, Rashid Aziz Khan and Iftikhar Muhammad Chaudhry, JJ

QUTAB‑UD‑DIN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.265 of 1997, decided on 17th October, 2000.

(On appeal from the judgment dated 8‑4‑1997 of the Lahore High Court, Lahore passed in Criminal Appeal No.584 of 1994):

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34‑‑‑Appraisal of evidence‑‑‑F.I.R. had been promptly lodged assigning to accused the role of inflicting dagger blows on the chest of the deceased‑‑‑Case of the accused was distinguishable from the case of the acquitted three co‑accused‑‑‑Principle of "falsus in uno falsus in omnibus" being not applicable, Courts were empowered to scan the evidence to reach a conclusion as to whether the testimony of a witness could be believed simultaneously against one set of accused and discarded against the other, subject to independent corroboration on a particular point qua the accused against whom such evidence was to be believed‑‑‑Eye‑witnesses had corroborated each other .fully on material points and successfully stood the test of cross‑examination‑‑‑Conviction and sentence of accused were upheld in circumstances.

Ghulam Sikander and another v. Mamaraz Khan and others PLD 1985 SC 11; Tawaib Khan and another v. The State PLD 1970 SC 13; The State v. Mushtaq Ahmad PLD 1973 SC 418; Muhammad Shafi and others v. The State 1974 SCMR 289; Bakka v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Ahmed and others v. The State 1982 SCMR 1049; Aminullah v. The State PLD 1982 SC 429; Muhammad Nawaz v. The State 1984 SCMR 190; Khairu v. The State 1981 SCMR 1136; Muhammad Ahmed v. The State 1997 SCMR 89 and Mir Hassan v. The State 1999 SCMR 1418 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Maxim: "Falsus in uno falsus in omnibus"‑‑‑Applicability‑‑‑Rule of "falsus in uno falsus in. omnibus" has got no application to administration of criminal justice prevailing in the country‑‑‑Courts, however, are empowered to scan the evide4ce to reach a conclusion as to whether the evidence furnished by a witness can be believed simultaneously against one set of accused and can be discarded against the other set of accused, subject to independent corroboration on a particular point qua the accused against whom such evidence is to be believed.

Ghulam Sikander and another v. Mamaraz Khan and others PLD 1985 SC 11; Tawaib Khan and another v. The State PLD 1970 SC 13; The State v. Mushtaq Ahmad PLD 1973 SC 418; Muhammad Shafi and others v. The State 1974 SCMR 289; Bakla v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Ahmed and others v. The State 1982 SCMR 1049; Aminullah v. The State PLD 1982 SC 429; Muhammad Nawaz v. The State 1984 SCMR 190 ref.

Sardar Muhammad Ghazi, Advocate Supreme Court for Appellant.

Arshad Ali Chaudhry, Advocate Supreme Court for A.G., Punjab for the State.

Date of hearing: 17th October, 2000.

P L D 2001 Supreme Court 107

Present: Sh. Riaz Ahmed, Rashid Aziz Khan and Iftikhar Muhammad Chaudhry, JJ

MUHAMMAD MUSHTAQ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.63 of 1998, decided on 16th October, 2000.

(On appeal from the judgment dated 30‑11‑1995 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No.203 of 1999, Murder Reference No.511 of 1991 and Criminal Revision No. 134 of 1992).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss. 302, 307 & 436‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to accused for reappraisal of entire evidence on record in the case.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 307 & 436‑‑‑Appraisal of evidence‑‑‑Ocular testimony furnished by the complainant and another witness was not impeached even in lengthy cross‑examination by the defence and the same was corroborated by medical evidence as well as by the recoveries of eight crime empties from the spot and the licensed gun presented by the accused himself at the police station‑‑­Delay in sending the said incriminating articles to the Laboratory for expert opinion could not be treated fatal to the prosecution case in the absence of objection of tampering or manipulating the same‑‑‑Delay of 16 hours in lodging the F.I.R. had been explained by the complainant in his Court statement; even otherwise in the presence of trustworthy and convincing evidence on the record, delay in making the F.I.R. could be ignored ‑‑‑Eye­witness although was not named in the F. I. R, yet he was a natural witness to whom no enmity or ulterior motive was attributed for false involvement of accused in the commission of the offence and his deposition was found to be true ‑‑‑Pendency of case of accused before the Court for a long time did not entitle him for lesser punishment , on the principle of expectancy of life particularly when he himself was responsible for causing such delay‑‑‑Convictions and sentences of accused were upheld in circumstances.

Muhammad Iqbal v. Muhammad Tahir and others PLD 1985 SC 361; Sikandar and 2 others v. The State PLD 1980 SC 411; Ch. Muhammad Siddique v. Muhammad Zubair and 4 others 1995 SCMR 1112; Khawand Bakhsh and others v. The State and 2 others PLD 2000 SC 1; Sheraz Asghar v. The State 1995 `SCMR 1365; 1986 PCr.LJ 1297 and Rahim Bakhsh v. Abdul Subhan and another 1999 SCMR 1190 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 307 & 436‑‑‑Appreciation of evidence‑‑‑Delay in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated fatal in absence of objection regarding the same having been tampered with or manipulated.

Muhammad Iqbal v. Muhammad Tahir and others PLD 1985 SC 361 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss. 302, 307 & 436‑‑‑Appreciation of evidence‑‑‑Delayed F.I.R.‑‑‑Delay in lodging of F.I.R. can be ignored in the presence of trustworthy and convincing evidence on record.

Sheraz Asghar v. The State 1995 SCMR 1365 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 307 & 436‑‑‑Medcial evidence‑‑‑Doctor has no authority in law to express his opinion as to which weapon was used in the commission of the offence.

1986 PCr. LJ 1297 ref.

Raja Muhammad Akram, Advocate Supreme Court and Ijaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Sardar M. Ishaq Khan, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for the Complainant.

Ch. M. Akram, Advocate Supreme Court for A.‑G., Punjab for the State.

Date of hearing: 16th October, 2000.

P L D 2001 Supreme Court 116

Present: Qazi Muhammad Faroaq, Mian Muhammad Ajmal and Deedar Hussain Shah, JJ

Messrs ITTEHAD CARGO SERVICE and 2 others‑‑‑Petitioners

versus

Messrs SYED TASNEEM HUSSAIN NAQVI and others‑‑‑Respondents (in all Petitions)

Civil Petitions Nos. 2073‑L, 2287‑L and 2313‑L of 2000, decided on 12th October, 2000.

'(On appeal from the judgment of the Lahore High Court, Lahore dated 11‑8‑2000 passed in Writ Petition No. 13109 of 2000).

(a) Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Art 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Concluded contract whether open to judicial review‑‑‑High Court in exercise of its Constitutional jurisdiction was possessed of power to examine the validity of‑order in‑regard to grant of a concluded contract and strike down the same on the grounds of mala fide, arbitrary exercise of discretionary power, lack of. transparency, discrimination and unfairness etc., provided the challenge was made promptly and contentious questions of facts were not involved.

Messrs Airport‑ Support Services v. The Airport Manager, Quaid‑i­-Azam International Airport,' Karachi and others 1998 SCMR 226‑8 and Messrs Pacific Multinational‑(Pvt.) Ltd. v.. Inspector‑General of Police, Sindh Police Headquarters and 2 others PLD 1992 Kar. 283 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 185 & 199‑‑‑Constitutional petition‑‑‑Auction proceedings‑‑‑Offer by an outsider after auction was concluded‑‑‑Assailing of concluded contract before High Court in exercise of Constitutional petition‑‑‑Vigilance Directorate did not recommend the party for pre‑qualification as such the party was not allowed to take party in the auction proceedings‑‑‑Party made an offer of Rs.8 crores for the contract. after the auction was concluded‑‑‑High Court allowed the Constitutional petition and directed the Authorities to re­auction the contract making Rs.8 crores as baseline‑‑‑Validity‑‑‑Where the party had not participated in the open auction on account of rejection of his application for pre‑qualification it was not supposed to make the offer‑‑‑Pre­-qualification Committee was not obliged to consider an offer made by any outsider after conclusion of the auction‑‑‑Administrative decision challenged by the party neither lacked transparency nor was tainted with mala tides nor was unfair, unjust or unreasonable nor based on bias or favouritism and discretion vested in the Authority had been properly structured by reference to objective standards which were not exercised arbitrarily‑‑‑Petition for leave to appeal was converted in appeal by Supreme Court and judgment of High Court was set aside.

Irfan Qadir, Advocate Supreme Court and Ejaz Ahmed Khan, Advocate‑on‑Record (absent) for Petitioner (in C.P. No.2073‑L of 2000).

Muhammad Afzal Sandhu, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record (absent) for Petitioner (in C.P. No.2287‑L of 2000).

Abid Hassan Minto, Senior Advocate. Supreme Court and Sh. Masood Akhtar, Advocate‑on‑Record (absent) for Petitioner (in C.P. No.2313‑L of 2000).

Ashtar Ausaf Ali Khan, Ali Ahmed Awan and Jehangir A. Joya, Advocates Supreme Court and Sh. Salahuddin, Advocate‑on‑Record for Respondents.

Date of hearing: 12th October, 2000.

P L D 2001 Supreme Court 128

Present: Iftikhar Muhammad Chaudhry and Deedar Hussain Shah, JJ

SYED MUHAMMAD ‑‑‑Petitioner

versus

Mst. ZEENAT and others‑‑‑Respondents

Civil Petition No. 134‑Q of 1998, decided on 1st November, 2000.

(On appeal from the judgment dated 23‑6-1998 of the High Court of Balochistan, Quetta, passed in Constitutional Petition No.284 of 1999).

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 17‑‑‑Civil Procedure Code (V of 1908), S.48‑‑‑Execution of decree passed by Family Court‑‑‑Provisions of S.48, C.P.C.‑‑‑Applicability‑‑­Except Ss. 10 & 11, C.P.C. no other provision of the Code was applicable to the proceedings before Family Court as provided under S.17, West Pakistan Family Courts Act, 1964‑‑‑Provisions of S.48, C.P.C., therefore, could not be pressed into service in the proceedings under the West Pakistan Family Courts Act, 1964.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 14‑‑‑Limitation Act (IX of 1908), Arts. 181 & 182‑‑‑Execution of decree passed by Family Court‑‑‑Limitation‑‑‑Scope‑‑‑Family Court is not a Civil Court stricto senso, therefore, provisions of Art. 182, Limitation Act, 1908 cannot be pressed into service‑‑‑Reliance has to be placed on the residuary Article i.e. Art.181 of Limitation Act, 1908 for execution of decree passed by Family Court‑‑‑Limitation for execution of such decree is thus three years when the right to apply accrues.

(c) Islamic Law‑‑‑

‑‑‑‑ Dower‑‑‑Recovery of‑‑‑Limitation‑‑‑Prompt dower is to be recovered during subsistence of marriage‑‑‑Husband acknowledges the right of his wife during subsistence of marriage and he is deemed to remain under a legal obligation to pay prompt dower‑‑‑No specific period of limitation for implementation of decree for prompt dower can be fixed as whenever wife moves the legal forum for satisfaction of her right, husband is under legal obligation to satisfy such decree.

(d) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 14‑‑‑Limitation Act (IX of 1908), Art. 181‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Execution of decree for prompt dower ‑‑‑Limitation‑‑­Marriage existed between the parties‑‑‑Suit for recovery of dower was decreed in favour of wife on 24‑10‑1979 and execution of the decree was filed on 10‑11‑1996‑‑‑Husband raised objection to the execution of decree being time‑barred‑‑‑Family Court overruled the objection but the Lower Appellate Court allowed the appeal and accepted the objection‑‑‑High Court in exercise of Constitutional jurisdiction set aside the order passed by the Lower Appellate Court‑‑‑Validity‑‑‑Postponement of recovery of dower for any consideration during subsistence of marriage would not deprive the wife from execution of the decree being barred by time‑‑‑No sooner proceedings of execution were launched that date would be treated as denial by husband to satisfy the liability of prompt dower and under the provisions of Art. 181, Limitation Act execution proceedings would be considered within time‑‑­Supreme Court declined interference with the judgment passed by High Court whereby objection to the maintainability of execution proceedings was rejected‑‑‑Leave 2o appeal was refused.

Basharatullah, Senior Advocate Supreme Court and Mehta W.N. Kohli, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

P L D 2001 Supreme Court 131

Present: Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

FAKIR ABDULLAH and others‑‑‑Petitioners

versus

GOVERNMENT OF SINDH through Secretary to Government of Sindh, Revenue Department, Sindh Secretariat, Karachi and others‑‑‑Respondents

Civil Petition No.42‑K of 2000, decided on 27th October, 2000.

(On appeal from the judgment of the High Court of Sindh, Hyderabad Circuit, Hyderabad dated 3‑12‑1999 passed in Civil Revision No.30 of 1999.)

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

‑‑‑‑S. 56(d)‑‑‑Interference in administrative functions ‑‑‑Jurisdiction of Court‑‑‑Scope‑‑‑Courts are not bound to issue directions in every case to the administrative functionaries to perform their functions in one way or the other unless the interest of the person or persons who have come forward to claim such relief is shown‑‑‑If the Court is not convinced from justification placed before it by the claimant to seek relief, the Court may refuse to grant decree.

Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192 ref.

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

‑‑‑‑S. 47‑‑‑Executing Court‑‑‑Execution of decree‑‑‑Jurisdiction of Executing Court‑‑‑Scope‑‑‑Where the Court is satisfied that the decree is nullity in the eyes of law, or the same has been passed by Court having no jurisdiction or the rights of the decree‑holder would not be infringed if the decree is refused to be executed or the decree has been passed in violation of any provision of law, the Executing Court under the provisions of S.47, C.P.C. can question executability of decree.

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

‑‑‑‑Ss. 42 & 56(d)‑‑‑Civil Procedure Code (V of 1908), S.47‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Execution of decree‑‑‑Consideration of events subsequent. to passing of decree‑‑‑Government notification was subject‑matter of the suit filed by the petitioner which was decreed by the Trial Court‑‑‑Government withdrew the disputed notification subsequent to passing of the decree‑‑‑Executing Court refused to execute the decree and appeal against the refusal was dismissed by the Lower Appellate Court‑‑­Revision before High Court also met the same fate‑‑‑Validity‑‑‑Executing Court in exercise of its jurisdiction under S.47, C.P.C. could take into consideration subsequent events even after passing of the decree‑‑‑Such jurisdiction could be exercised in order to ensure that the process of law might not be abused and the judicial pronouncements should be implemented effectively instead of making them ineffective on account of their inexecutability‑‑‑High Court had rightly refused to execute the decree as after passing the same the decree had become inexecutable on account of subsequent event whereby the disputed notification was withdrawn‑‑­Supreme Court refused to interfere with the order passed by High Court‑‑­Leave to appeal was refused.

PLD 1965 SC 671; PLD 1978 Kar. 205; PLD 1983 Lah. 445; 1998 SCMR 151; Cantonment Board v. Kishan Lal AIR 1934 All. 609; Alaat Hussain v. Mushtaq Ali AIR 1937 All. 282; Messrs Haji Ahmed & Co. v. Muhammad Siddique and others PLD 1965 (W.P.) Kar. 293; Brig. (Retd.) Muhammad Aslam Khan v. The Azad Government of the State of Jammu and Kashmir through the Secretary, Forest Department, Muzaffarabad and another 1983 CLC 1204; Abbasia Cooperative Bank (now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC 3 ref.

Abdur Rahim Kazi, Advocate Supreme Court and A. Aziz Khan, Advocate‑on‑Record for Petitioners.

Suleman Habibullah, Addl. A.‑G., Sindh (on Court's notice).

Date of hearing: 27th October, 2000.

P L D 2001 Supreme Court 137

Present: Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

ABDUL RAHIM KHAN‑‑‑Petitioner

versus

ASIF ALI KHAN and others‑‑‑Respondents

Civil Petition No.495‑K of 2000, decided on 23rd October, 2000.

(On appeal from the judgment of the High Court of Sindh, Circuit Court, Larkana dated 31‑8‑2000 passed in Civil Revision No.S‑10 of 1999).

(a) Islamic Law‑

‑‑‑‑ Constitution of Pakistan (1973), ‑Art. 185(3)‑‑‑Pre‑emption‑‑‑Leave to appeal was granted to consider whether right of pre‑emption could be enforced on sale by Hindu vendor who was not subject to Muslim Personal Law.

Dwarka Das v. Hussain ILR 1978 All. 564 and Sundri Bai v. Ghulam Hussain 1982 CLC 2441 ref.

Per Iftikhar Muhammad Chaudhry, J.‑‑

(b) Islamic Law‑

‑‑‑‑ Pre‑emption‑‑‑Application of right of pre‑emption to non‑Muslims‑‑­Scope‑‑‑Right of pre‑emption is equally applicable to Muslims and non­ Muslims unlike the Islamic Law of inheritance.

Government of N.‑W.F.P. through Secretary, Law Department v. Said Kamal Shah PLD 1986 SC 360 ref.

(c) Islamic Law‑

‑‑‑‑ Constitution of Pakistan (1973), Art. 185(3)‑‑‑Right of pre‑emption‑‑­Exercise of such right where vendor was non‑Muslim‑‑‑Pre‑emptor being Muslim exercised his right of pre‑emption against the property sold by a Hindu vendor‑‑‑Trial Court rejected the plaint and appeal before Lower Appellate Court was dismissed‑‑‑Revision tiled before High Court also met the same fate‑‑‑Validity‑‑‑Leave to appeal was granted to consider whether the judgment of High Court was not sustainable as there was no restriction in Islam for enforcing the right of pre‑emption by or against non ­Muslims.

Per Rana Bhagwah Das, J.‑‑

(d) Islamic Law‑

‑‑‑‑ Pre‑emption‑‑‑Object‑‑‑Law of pre‑emption enables landowners to avoid advent of an undesirable neighbour‑‑‑Object behind the application of right of Shufaa is to safeguard privacy of Muslim families.

Principles of Mahomedan Law by D.F. Mulla ref.

(e) Islamic Law‑

‑‑‑‑ Pre‑emption‑‑‑Right of pre‑emption is a right of re‑purchase from the buyer and is an incident of property.

(f) Islamic Law‑

‑‑‑‑ Pre‑emption=‑‑Recognition of right of pre‑emption by customs among Hindus.

The right of pre‑emption is recognized by custom among Hindus who are either natives of, or are domiciled in Bihar, Sylhet and certain parts of Gujarat, such as Surat, Broach and Godhra, and it is governed by the rules of Muhammadan Law of pre‑emption except in so far as such rules are modified by such customs. Under the Mahomedan Law, non‑Mahomedans are as much entitled to exercise the right of pre‑emption as Mahomedans. Therefore, during the Mahomedan rule in India, claims for pre‑emption were entertained by the Courts of the country, whether they were preferred by or against Hindus. In this way, the Mahomedan Law of Pre‑emption came to be customary law of Bihar and Gujarat.

Ghulam Qadir Jatoi, Advocate Supreme Court (absent) and Faizanul Haq, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd October, 2000.

P L D 2001 Supreme Court 142

Present: Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

SHAFAATULLAH QURESHI‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN‑‑‑Respondent

Civil Petition No.23‑K of 2000, decided on 26th October, 2000.

(On appeal from the judgment of the High Court of Sindh, dated 17‑11‑1999 and 30‑11‑1999 passed in Constitutional Petition No.122/98).

(a) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)‑‑‑

‑‑‑‑Art. 9‑‑‑Wafaqi Mohtasib, appointment of ‑‑‑Purpose‑‑‑Wafaqi Mohtasib is appointed to diagnose, investigate and rectify an injustice done to a person through maladministration.

(b) Establishment of the Office of Wafaqi Mobtasib (Ombudsman) Order (1 of 1983)‑‑‑

‑‑‑‑Preamble & Art.9‑‑‑Constitution of Pakistan (1973), Art.175‑‑­Ombudsman/Mohtasib‑‑‑Not a Court or Judicial Tribunal‑‑‑Performance of quasi‑judicial functions by the Ombudsman‑‑‑Effect‑‑‑Finding of Mohtasib‑‑­Nature‑‑‑Office of Mohtasib has been created for redressal of grievances of citizens‑‑‑Findings of Mohtasib are of recommendatory nature and not a judgment/decision‑‑‑Performance of quasi‑judicial functions by itself does not convert an Authority into Court‑‑‑Whether any action is quasi‑judicial or purely executive it depends on the interpretation of rules/law under which the Authority exercises its jurisdiction‑‑‑Although administrative Authority also has to act bona fide, yet the same is different from acting judicially‑‑­Authorities which are not Court, have to decide questions and have to act judicially in the sense that the proceedings have to be conducted with fairness and impartiality‑‑‑In order to constitute a Court in stricto senso, it should have power to give a decision or a definite judgment, which has finality and authoritativeness ‑‑‑Office of Wafaqi Mohtasib is neither a Court nor Judicial Tribunal within the scope of Art. 175 of the Constitution.

Jia Ram v. Smt. Kundana Wanti and 4 others PLD 1978 Quetta 91; Nasir Mahmood v. Murad Ali PLD 1960 Lah. 757; Shell Co. of Australia Limited v. Federation Commissioner of Taxation (1930) All ER 671; United Engineering Workers' Union v. Deyanayagam (1976) 2 All. ER 367; Mir Rehman Khan and another v. Sardar Asadullah Khan and 14 others PLD 1983 Quetta 52; Hafiz Muhammad Arif Dar v. Income Tax Officer PLD 1989 SC 109 and Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others 1999 SCMR 2189 ref.

(c) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)‑‑‑

‑‑‑‑Arts. 9 & 32‑‑‑Limitation Act (IX of 1908), Ss. 9.& 14‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Proceedings in a Court without jurisdiction‑‑­Exclusion of time spent in such proceedings‑‑‑Limitation‑‑‑Benefit of S.14, Limitation Act, 1908‑‑‑Claim of the petitioner was turned down by the Authorities on 24‑5‑1988 and the matter was taken to the Office of Wafaqi Mohtasib by the petitioner‑‑‑Proceedings before Wafaqi Mohtasib were decided in favour of the petitioner but the recommendations of Mohtasib were set aside by the President of Pakistan on 10‑3‑1992 in exercise of his powers under Art.32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983‑‑‑Petitioner filed a civil suit after the order passed by the President‑‑‑High Court dismissed the suit being time‑barred on the ground that period of limitation started from 24‑5‑1988 and not from 10‑3‑1992 and benefit of S.14 of Limitation Act, 1908 was not extended to the petitioner‑‑‑Validity‑‑‑Once the time had begun to run, the same was to run continuously until entire prescribed period had run out‑‑‑Limitation in the case started from 25‑5‑1988 when claim of the petitioner was rejected and suit was filed after more than 3 years when the limitation period had already expired ‑‑‑Mohtasib being not a Court, petitioner could not claim benefit of S.14 of Limitation Act, 1908‑‑‑Judgements passed by High Court did not call for any interference‑‑‑Leave to appeal was refused.

Abdul Rahim Kazi, Advocate Supreme Court and A. Aziz Khan, Advocate‑on‑.Record for Petitioner.

Nemo for Respondent.

Date of hearing: 26th October, 2000.

P L D 2001 Supreme Court 149

Present: Muhammad Bashir Jehangiri, Deedar Hussain Shah and Javed Iqbal, JJ

DILAWAR JAN---Appellant

versus

GUL REHMAN and 5 others---Respondents

Civil Appeal No. 122 of 1995, decided on 18th October, 2000.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 11-5-1994 passed in W.P. No.68 of 1994).

(a) Constitution of Pakistan (1973)---

----Arts. 185(3) & 199---Constitutional jurisdiction of High Court --- Finding of fact---Setting aside of---Leave to appeal was granted to consider, whether High Court had exceeded its Constitutional Jurisdiction in dismissing the suit by setting aside the finding of fact; entering into disputed question of fact and while entering into the disputed question of fact, the evidence had been completely misread and misinterpreted by the High Court.

(b) Constitution of Pakistan (1973)---

----Arts. 199---Constitutional jurisdiction of High Court---Scope---Disputed question of fact---Interference by High Court---Extent---Beyond certain point of lack of care and understanding in respect of facts, negligence and misunderstanding become questions of law and jurisdiction for the reason that no authority is expected to exercise jurisdiction in such a manner as to make the same a farce---Relief under the provision of Art.199 of the Constitution can be granted to the citizens against infringement of any provision of lam, or of Constitution.

M K. Khakwani v. Commissioner, Multan Division 1982 CLC 361 ref.

(c) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction. exercise of---Preconditions---High Court in exercise of such jurisdiction cannot sit as a Court of appeal---Where order passed by Court below suffers from any jurisdictional defect or violates any provision of law, and if the error is so glaring and patent that the same may not be acceptable, invocation of Constitutional Jurisdiction is justified--­When finding is based on insufficient evidence, misreading of evidence, erroneous assumption of facts, non-consideration of material evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken, High Court can interfere.

PLD 1978 Quetta 17 and PLJ 1978 Quetta 72 ref.

(d) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Findings of fact--­High Court. interference by---Scope---High Court in exercise of jurisdiction under Art. 199 of the Constitution does not normally interfere with the finding on fact---Where decision is based on disregard of the provisions of law, or is based on misreading or insufficient or inadmissible evidence, in order to advance the cause of justice, the Supreme Court has jurisdiction to interfere with such decision and finding.

Nasreen Fatima v. Principal, Bolan Medical College PLD 1978 Quetta 17; Imtiaz, Bashir v. Special High Powered Committee PLD 1978 Quetta 131; Haleema Bai v. Settlement Commissioner 1987 MLD 3215; Ali Nawaz v. Member, Board of Revenue PLD 1989 Kar. 237; Saeeda Fatima v. Abdul Hamid PLD 1983 SC 258; Gulzar Ahmad v. State PLD 1985 Lah. 353; Ahmedan Bibi v. Rustam Ali PLD 1989 Lah. 531 and Abdul Aziz v. Bashir Ahmad 1989 CLC 103 ref.

(e) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction, exercise of---Scope---Failure on the part of statutory functionary or a Court to make a visible effect with diligent application of mind to adjective assertion or to strive in search of truth for dispensing justice, the same tantamounts to failure to exercise jurisdiction in the eye of law.

(f) Provincially Administered Tribal Areas (Special Provisions) Regulation (II of 1995)---

----S. 4(2) [as amended by Provincially Administered Tribal Areas (Special Provisions) (Amendment) Regulation (IV of 1976)]---Constitution of Pakistan (1973), Art. 199---Limitation Act (IX of 1908), S.1---Constitutional petition before High Court ---Custom---Pre-emption suit under custom--­Exchange of property---Provisions of Limitation Act, 1908---Applicability---Suit under Riwaj (Custom) challenging exchange of property was decreed in favour of the plaintiff while the Appellate Court allowed the appeal and dismissed the suit---Findings of the Trial Court were upheld by the Revisional Court and judgment of the Appellate Court was set aside---High Court in exercise of its Constitutional jurisdiction restored the order of the Appellate Court---Validity---Trial Court and revisional forum had not scrutinized the evidence with diligent application of mind---Where no attention was given to the question of limitation by the forums below, High Court was justified in exercising the jurisdiction conferred upon it under Art. 199 of the Constitution---Time during which the plaintiff could pre-empt had expired under Riwaj (Custom) which prevailed at the relevant time and had force of law---Where the cause of action had become barred due to "Riwaj" (Custom) the provisions as contained in Limitation Act, 1908 could not be pressed into service so as to resuscitate and revitalise the cause of action---Plaintiff failed to file suit for pre-emption in time and factum of sale could not be proved by adducing worthy of credence evidence---Judgment of High Court was free from any illegality or infirmity and the same did not call for any interference.

Khalil-ur-Rehman v. Talizar Khan PLD 1992 SC 442; Abdul Murad Khan v. Noshaba 1992 SCMR 1828; Amir Abdullah v. Tota 1989 CLC 1294; Khuna Gul v. Said Farid PLD 1983 SC 209; Central Exchange Bank Ltd. v. Ch. Dilawar Ali Khan and others PLD 1965 Lah. 628 and Mst.. Allah Rakhi v. Shah Muhammad Abdur Rahim and others AIR 1934 PC 77 ref.

(g) Pre-emption---

----Limitation---Each day has its own significance and delay is to be meticulously explained in pre-emption case.

Waris Khan, Advocate Supreme Court and Nur Ahmad Khan, Advocate-on-Record (absent) for Appellant.

Mian Younas Shah, Senior Advocate Supreme Court and Jan Muhammad Khan, Advocate-on-Record (absent) for Respondents Nos. 1 and 2.

Respondents Nos. 3 to 6 : Ex parte.

Date of hearing: 18th October, 2000.

P L D 2001 Supreme Court 158

Present: Deedar Hussain Shah and Javed Iqbal, JJ

Haji ABDULLAH and 10 others‑‑‑Appellants

versus

YAHYA BAKHTIAR‑‑‑Respondent

Civil Appeals Nos. 756‑Q to 766‑Q of 1999, decided on 27th October, 2000.

(On appeal from the judgment of the High Court of Balochistan, Quetta, dated 30‑9‑1998 passed in F.A.Os. Nos.51/1998 and 65/1998).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bona fide personal need of landlord‑‑‑Leave to appeal was granted to consider whether without having any plan indicating the particulars as to the area available in building and without having particulars as to how the present building would be utilized as hospital without carrying out material alterations or reconstruction, both the Courts below were justified in granting the ejectment in respect of the entire building on the ground of personal requirement of landlord's son who had been residing abroad for over a decade.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 78‑‑‑Authenticity of document‑‑‑Raising of objection at appellate stage‑‑‑Authenticity and genuineness of document was never challenged before Trial Court where it could have been conveniently challenged at the opportune moment‑‑‑Effect‑‑‑No objection regarding the authenticity of document could be raised at belated stage.

Gulzar Hussain v. Abdur Rehman 1985 SCMR 301; Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140; Gopal Das v. Shri Thakurji AIR 1943 PC 83; Malik Din and another v. Muhammad Aslam PLD 1969 SC 163; Dr. Major Abdul Ahad Khan v. Soofi Muhammad Yasin and Brothers PLD 1984 SC 200 and Ghulam Muhammad and others v. Mehtab Beg 1983 SCMR 849 ref.

(c) Practice and procedure‑‑‑

---Court could not grant a relief which was never prayed for in a categoric manner.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Bona fide personal need of landlord ‑‑‑Proof‑‑‑Requirements‑‑­Mere wish, convenience, whim or fancy of landlord was not enough to show that the landlord required premises in good faith‑‑‑Landlord must prove requirement of premises for reasonable needs and that he was not seeking eviction on the pretext of requiring additional accommodations with oblique motive of realizing some extraneous purposes‑‑‑Order of eviction required satisfaction of Rent Controller that reasonable requirement of landlord would be met by occupation of the premises‑‑‑Eviction order could not be granted on vague allegations in the application‑‑‑Plea of requirement had to be supported by valid reasons regarding genuineness of the requirement.

PLD 1986 Kar. 84 ref.

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Bona fide personal need of landlord‑‑‑Landlord going abroad during pendency of the proceedings‑‑‑Whether lack of bona fides‑‑­Landlord's going abroad during pendency of ejectment petition could not be considered as showing lack of bona fides‑‑‑Landlord seeking eviction on the ground of personal requirement would not sit idle of periods of time during pendency of eviction proceedings‑‑‑Employment of landlord in a gainful occupation during such period would not negate the assertion of bona fides on the part of landlord.

PLD 1982 SC 317; 1987 SCMR 220 and PLD 1982 SC 218 ref.

(f) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Bona fide personal need of landlord‑‑‑Discretion of landlord to use the premises‑‑‑Landlord alone has the authority to decide about the premises and no advice or suggestion can be made binding upon him‑‑­Tenants cannot act as gratuitous advisors to the landlord in that respect.

1968 SCMR 1087 rel.

(g) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Bona fide personal need of landlord‑‑‑Proof‑‑‑Question of fact‑‑­Interference in findings arrived at by Rent Controller‑‑‑Scope‑‑‑Bona fide need of landlord being a question of fact, finding on the subject could not be taken exception to unless the finding suffered from violation of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence.

1978 SCMR 437 rel.

(h) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Bona fide personal need of landlord‑‑‑Concurrent findings of two Courts below‑‑‑Premises was required by landlord's son for establishing hospital as he was a doctor himself‑‑‑Rent Controller allowed the application and the‑ order of Rent Controller was upheld by High Court resultantly appeal of the tenant was dismissed‑‑‑Validity‑‑‑Question of bona fide personal requirement of landlord was a question of fact and where the position stood concluded by concurrent findings of two Courts below, the same was not open to challenge in absence of any omission or misreading of evidence or violation of any principle of law‑‑‑Judgment of High Court not suffering from violation of any principle of law, Supreme Court declined to interfere in the concurrent findings and conclusion drawn by the Courts below.

1980 SCMR 506; 1986 CLC 2098; 1986 CLC 591; PLD 1977 Kar. 460; PLD 1977 Kar. 277; PLD 1977 Lah. 110; PLJ 1977 Lah. 78; 1983 CLC 241; 1984 SCMR 1283; 1980 SCMR 767; 1980 SCMR 751 and 1981 SCMR 161 ref.

Syed Ayaz Zahoor, Advocate Supreme Court and M.W.N. Kohli, Advocate‑on‑Record for Appellants.

M.'Riaz Ahmad, Advocate‑on‑Record for Respondent.

Date of hearing: 27th October, 2000.

P L D 2001 Supreme Court 169

Present: Nazim Hussain Siddiqui and Tanvir Ahmed Khan, JJ

MUMTAZ ALI KHAN RAJBAN and another‑‑‑Petitioners

versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Civil Petitions‑ Nos. 1636‑L and 1675‑L of 2000, decided on 4th October, 2000.

(On appeal from the judgment dated 8‑2‑2000 and 5‑6‑2000 of the Lahore High Court passed in W.Ps. Nos.901 and 10389 of 2000).

(a) Interpretation of statutes‑‑

‑‑‑‑ Repeal of Act‑‑‑Repeal cannot be implied, unless there is an express repeal of an earlier Act by the later Act, or it is established that the two Acts cannot stand together‑‑‑Repeal by implication is possible; if its provisions are plainly repugnant to a subsequent statute, if the two Acts standing side by side would lead to wholly absurd consequences, or if the entire subject­matter of the first Act is taken away by the second Act.

N.S. Bindra's Interpretation of Statutes, 8th Edn., pp. 829‑‑830 ref.

(b) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)‑‑‑

‑‑‑‑Preamble‑‑‑Anti‑Terrorism Act (XXVII of 1997), Preamble‑‑­Applicability‑‑‑Object, nature and purpose of both the Acts‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) not impliedly repealed by Anti‑Terrorism Act (XXVII of 1997)‑‑‑Purpose of the Suppression of Terrorist Activities (Special Courts) Act, 1975 is of suppressing acts of sabotage, subversion and terrorism and to provide for speedy trial of offences committed in furtherance of or in conviction with such acts‑‑‑Object of Anti­Terrorism Act, 1997 primarily is to prevent terrorism, sectarian violence and speedy trial of heinous offences and although this Act to some extent contains the substantive law, but primarily it is procedural in nature‑‑‑Some of the offences triable under the two Acts are though common, for example offences punishable under Ss. 121, 121‑A, 122‑B, 123, 365‑A, 402‑A, 402‑B,` 302(c), 392, 395, 397, 398, P.P.C., yet there are many other offences under various Acts/Rules which are triable under one of these Acts and not both‑‑‑Provisions of Act XV of 1975, therefore, cannot be said to be repugnant to the provisions of ,Act XXVII of 1997, nor it can be contended that they cannot stand together‑‑‑Subject‑matters of both the Acts are different‑‑‑Neither all provisions of Act XXVII of 1997 are substitute of the provisions of Act XV of 1975, nor the same are inconsistent with each other‑‑‑Applicability of both the Acts is governed by different criteria‑‑‑Not necessary that all offences falling under one broad category shall be dealt with under the same statute‑‑‑‑Suppression of Terrorist Activities (Special Courts) Act, 1975 is not, therefore, impliedly repealed by the Anti ­Terrorism Act; 1997.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/148/149‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.6 & 7‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Terrorist act‑‑‑Threat given by accused had been translated into reality and the deceased was killed‑‑‑Not necessary that the force must have been used immediately after the threat‑­Act of the accused squarely fell within the scope of "terrorist act", for the reason that as a consequence of the said threat the deceased was killed‑‑­Furthermore, accused being an examinee in the Examination Hall as well as in the College every body knew about the threat which struck terror and also created sense of fear and insecurity amongst people in general and Teachers/Professors in particular‑‑ ‑Impugned judgment of High Court being perfectly correct, warranted no interference‑‑‑Leave to appeal was refused accordingly.

Allah Din and 18 others v. The State and another 1994 SCMR 717 ref.

Dr. A. Basit, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 4th October, 2000.

P L D 2001 Supreme Court 176

Present: Muhammad Bashir Jehangiri and Abdur Rehman Khan, JJ

THE MANAGING DIRECTOR, SUI SOUTHERN GAS CO. LTD. ‑‑‑Petitioner

versus

SALEEM MUSTAFA SHAIKH and others‑‑‑Respondents

Civil Petitions No.979 to 1012 of 2000, decided on 10th July, 2000.

(On appeal from the judgment dated 29‑4‑2000 of the Federal Service Tribunal, Islamabad, passed in Appeal No. 1097 (R) of 1999 to 1104(R) of 1999, 1219‑R to 1238(R) of 1999, 1263(R) to 1265(R) of 1999 and 1491(R) to 1493(R) of 1999).

(a) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 2‑A & 4‑‑‑Sui Gas Transmission Company Limited Service Rules, 1982, Rr.2.17, 6.1, 6.2 & 6.3‑‑‑Constitution of Pakistan (1973). Art.212(3)‑‑‑Termination from service‑‑‑Non‑statutory rules, enforcement of‑‑‑Jurisdiction of Service Tribunal‑‑‑Principle of estoppel ‑‑‑Applicability‑‑­Respondents were employees of the petitioner‑company who were inducted as trainee engineers, despite working for more than four years they were not confirmed and their services were terminated‑‑‑Service Tribunal allowed appeals of the respondents/employees and directed the petitioner‑Company to issue the letter of absorption to the respondents‑‑‑Contention of the petitioner‑company was that rules framed by the company were non­statutory, therefore, the Tribunal had no jurisdiction to adjudicate the matter‑‑‑Validity‑‑‑Petitioner was a Company owned and controlled by Federal Government, therefore, it could not be expected of the Government to enact rules and then not to enforce the same or to violate merely because the rules did not have the status of statutory rules ‑‑‑Factum of the rules being statutory or non‑statutory would not debar Service Tribunal to enforce the same‑‑‑Petitioner‑company, under the principle of general law of estoppel, could not be allowed to object to the invocation of the rules by the employees/respondents and as such could not be permitted to violate and dis­honour their commitments/undertaking given by it‑‑‑Service Tribunal could not be condemned in enforcing the rules which the Board of Directors of the petitioner‑company had framed‑‑‑Service Tribunal had enforced the application of the rules and had not flawed in any way‑‑‑Neither there was any legal flaw in the judgment of the Service Tribunal, nor there was any substantial point of public importance‑‑‑Leave to appeal was refused by Supreme Court.

United Bank Limited through President v. Shahmim Ahmed Khan and 41 others PLD 1999 SC 990 distinguished.

(b) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Time‑barred appeal‑‑‑Failure to raise such objection before Service Tribunal‑‑‑Objection was neither taken up in the comments filed by the petitioner in the Tribunal nor at the time of arguments before the Tribunal‑‑‑Effect‑‑‑Where the question of limitation involved factual controversy, Supreme Court refused to allow such objection to be raised‑‑‑Petition for leave to appeal was refused.

(c) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Reinstatement‑‑‑Service Tribunal, jurisdiction of‑‑‑Employees worked with the employer company for four years as trainee engineers thereafter the services of the employees were terminated‑‑‑Service Tribunal allowed the appeal filed by the employees and they were reinstated in service‑‑‑Contention by the employer company was that the Tribunal had exceeded its jurisdiction as in terms of S.4 of Service Tribunals Act, 1973, the Tribunal could not direct the employer company to issue the letter of absorption of the employees‑‑‑Validity‑‑‑Tribunal had given such direction in context of termination order and it had not determined the fitness or otherwise of the employees to be appointed or to hold a particular post‑‑­Contention was misconceived and the Tribunal had not exceeded its jurisdiction.

Ch. Muhammad Jamil, Advocate Supreme Court and Muzaffar Ali Khan, Advocate‑on‑Record for Petitioner (in all the Civil Petitions).

Wasim Sajjad, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Respondents (in all the Civil Petitions).

Date of hearing: 10th July, 2000.

P L D 2001 Supreme Court 182

Present: Rana Bhagwan Das and Javed Iqbal, JJ

Syed ARIF RAZA RIZVI‑‑‑Petitioner

versus

Messrs PAKISTAN INTERNATIONAL AIRLINES through Chairman/M.D., Karachi‑‑‑Respondent

Civil Petition No. 263‑K of 1999, decided on 3rd July, 2000.

(On appeals from the judgment, dated 11‑3‑1999 of High Court of Sindh, Karachi, passed in H. C. A. No. 129 of 1997).

(a) Sindh Chief Court Rules (O.S.)‑‑‑

‑‑‑‑R. 159‑‑‑Original civil jurisdiction of Sindh High Court‑‑‑Matter coming directly before High Court under a law does not bring the same within the ordinary civil jurisdiction‑‑‑Such jurisdiction is confined to the trial of suits arising within the local limits of that jurisdiction.

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

‑‑‑‑S.3(2), proviso‑‑‑Constitution of Pakistan (1973), Art‑199 ‑‑‑Intra‑Court Appeal‑‑‑Scope‑‑‑Proceedings assailed before High Court in exercise of Constitutional jurisdiction‑‑‑Where the law applicable to' the proceedings, subject‑matter of the petition under Art.199 of the Constitution, provided for at least one appeal, or one revision, or one review to any Court, Tribunal or Authority against the original order, there would be no appeal, to a Bench of two or more Judges of the High Court from the order made by a Single Judge of the same Court under Art. 199 of the Constitution.

PLD 1975 Lah. 1339; PLD 1975 Lah. 1372 and PLD 1974 Kar.345 ref.

(c) Interpretation of statutes‑‑‑

‑‑‑‑ Proviso to section‑‑Function‑‑‑Proviso to a section cuts down the meaning of that section as a proviso to a group of sections cuts down the meaning of that group‑‑‑Provisos are not generally intended to do more than the same.

PLD 1975 Kar. 96 ref.

(d) Law Reforms Ordinance (XII of 1972)‑‑‑‑

‑‑‑‑S.3(2), proviso‑‑‑Expression "original order"‑‑‑.Object and scope‑‑‑Expression "original order" used in the proviso is to distinguish the same from the appellate or revisional order, or an order passed in the exercise of review jurisdiction‑‑‑Where law applicable to the proceedings giving rise to the Constitutional petition provides for one appeal, one revision or one review against the original order, proviso to S.3(2) of Law Reforms Ordinance, 1972, is not applicable.

PLD 1975 Lah. 1339; PLD 1993 Kar. 713 and PLD 1984 SC 344 ref.

(e) Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑

‑‑‑‑Ss.25‑A & 51‑‑‑Provisions contained in Ss.25‑A & 51 of Industrial Relations Ordinance, 1969, are not synonymous or interchangeable but have their own domain, object, scope and characteristics.

(f) Industrial dispute?

‑‑‑‑Foreign slip allowance‑‑‑Connotation‑‑‑Foreign slip allowance is subject to stay in some foreign country in connection with official duty and the same, cannot be allowed without performing the same‑‑‑Employee performing ground duties cannot claim foreign slip allowance.

(g) Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑

‑‑‑‑S.51‑‑‑Foreign, slip allowance and domestic slip allowance‑‑?Determination‑‑‑Labour Court, jurisdiction of‑‑‑Scope‑‑‑Where there was a controversy pertaining to said allowances between the employer and the employee, Labour Court could not adjudicate the dispute in terms of money under the provisions of S.51, Industrial Relations Ordinance, 1969.

1993 PLC 87 ref.

(h) Industrial Relations Ordinance (XXIII of 1969)‑‑‑‑

‑‑‑‑S.51‑‑‑Constitution of Pakistan (1973), Art.185(3;‑‑‑Foreign slip allowance and domestic slip allowance‑‑‑Determination‑‑‑Labour Court, jurisdiction of‑‑‑Petitioner was .terminated from service on account of his involvement in smuggling of narcotics‑‑‑Labour Court reinstated the petitioner in service with back benefits including the foreign slip allowance and domestic slip allowance‑‑‑Constitutional petition before the High Court was dismissed but in Intra‑Court Appeal tiled by the respondent, Division Bench of the High Court set aside the allowances granted 'to the petitioner‑‑‑Validity‑‑‑Provisions as contained in S.51 of Industrial Relations Ordinance, 1969, could have been invoked subject to the condition that there was no dispute regarding entitlement and the amount claimed should be determined one‑‑‑Amount pertaining to foreign slip allowance and domestic slip allowance had not been determined by any award or settlement and in such view of the matter the Labour Court was not competent to award those allowances under S.51 of Industrial Relations Ordinance, 1969‑‑‑Such question. could not be determined by the Labour Court in view of limited powers as conferred upon it under S, 51 of Industrial Relation Ordinance. 1969‑‑‑Leave to appeal was refused by Supreme Court.

1993 PLC 87 ref.

Suleman Habibullah, Advocate Supreme Court and Miss Wajahat Niaz, Advocate ‑on‑Record (absent) for Petitioner.

Qamar Abbas, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Respondents.

Date of hearing: 3rd July, 2000.

P L D 2001 Supreme Court 193

Present: Irshad Hasan Khan, CJ Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

MAHBOOB HUSSAIN QAMAR and others‑‑‑Petitioners

versus

UNITED BANK LIMITED through President and others‑‑‑Respondents

Civil Petitions Nos.1167/2000, 1184/2000 to 1186/2000, 1192/2000 to 1199/2000, 1202/2000 to 1212/2000, 1218/2000 to 1230/2000, 1232/2000 to 1251/2000, 1274/2000 to 1291/2000, 1293/2000 to 1344/2000,1355/2000 to 1365/2000, 1373/2000 to 1379/2000, 1382/2000, 1455/2000 to 1457/2000, 1528/2000 to 1551 /2000 1554/2000 to 1559/2000, 1572/2000 to 1578/2000, 1580/2000, 1645/2000 to 1650/2000, 1822/2000, 1823/2000, and 1874 to 1876/2000, decided on 1st December, 2000.

(On appeal from five consolidated judgments respectively dated 16‑6‑1999, 23‑8‑1999, 1‑6‑2000, 14‑6‑2000 and 7‑8‑2000 passed by Federal Service Tribunal in Appeals Nos. 1094‑L‑98, 1300‑L‑98, 823‑L‑98, 1095‑L‑98, 1019‑L‑98, 1044‑L‑98, 1038‑L‑98, 1039‑L‑98, 1278‑L‑98, 1084‑L‑98, 1195‑L‑98, 1014‑L‑98, 1005‑L‑98, 1304‑L‑98, 1099‑L‑98, 1106‑L‑98, 1261‑L‑98, 1264‑L‑98, 1268‑L‑98, 1285‑L‑98, 1286‑L‑98, 1299‑L‑98, 1301‑L‑98, 1100‑L to 1104‑L‑98, 1108‑L‑98, 1109‑L‑98, .1115‑L‑98, 1116‑L‑98, 1267‑L‑98, 1283‑L‑98, 1284‑L‑98, 1307‑L‑98, 1107‑L‑98, 1126‑L‑98, 1131‑L‑98, 1134‑L‑98, 1196‑L‑98, 1277‑L‑98, 1287‑L‑98, 1302‑L‑98, 1303‑L‑98, 1305‑L‑98, 1308‑L‑98, 1309‑L‑98, 1317‑L‑98, 1318‑L‑98, 1320‑L to 1323‑L‑98, 1325‑L‑98, 1396‑L‑98, 1119‑L‑98, 1120‑L‑98, 1121‑L‑98, 1127‑L‑98, 1130‑L‑98, 1136‑L to 1138‑L‑98, 1141‑L to 1143‑L‑98, 1145‑L to 1147‑L‑98, 1144‑L‑98, 1150‑L‑98, 1152‑L‑98, 1153‑L‑98, 1118‑L‑98, 1135‑L‑98, 1155‑L‑98, 1157‑L to 1160‑L‑98, 1151‑L‑98, 1161‑L‑98,1163‑L to 1168‑L‑98, 1170‑L to 1172‑I.=98 , 1179‑L to 1185‑L‑98, 1191‑L‑98, 1189‑L‑98, 1190‑L‑98, 1186‑L‑98, 1187‑L‑98, 1249‑L‑98, 1197‑L‑98, 1199‑L to 1201‑L‑98, 1206‑L‑98, 1208‑L‑98, 1224‑L‑98, 1234‑L‑98, 1239‑L‑98, 1241‑L‑98, 1243‑L to 1246‑L‑98, 1248‑L‑98, 1192‑L‑98, 1250‑L to 1252‑L‑98, 1154‑L‑98, 1314‑L‑98, 1312‑L‑98, 1258‑L to 1260‑L‑98, 1279‑L, 1280‑L‑98, 1291‑L‑98, 1296‑L‑98, 1298‑L‑98,1315‑L‑98, 1326‑L‑98, 1330‑L‑98, 1281‑L‑98, 1255‑L‑98, 1247‑L‑98, 1182‑L‑98, 1297‑L‑98, 1273‑L‑98, 1274‑L‑98, 1940‑L‑98, 1173‑L to 1175‑L‑98, 349‑L‑98, 350‑L‑98, 469‑L‑99, 976‑L‑98, 1378‑L‑98, 1397‑L‑98, 1398‑L‑98, 1414‑L‑98, 1419‑L‑98, 1422‑L‑98, 1439‑L‑98, 1454‑L to 1457‑L‑98, 1496‑L to 1499‑L‑98, 1513‑L‑98, 1506‑L‑98, 1563‑L‑98, 1579‑L‑98, 1736‑L‑98, 802‑L‑98, 805‑L‑98, 894‑R‑99, 1048‑R‑98, 1055‑R‑98, 1057‑R‑98, 1276‑L‑98, 1650‑L to 1653‑L‑98, 1306‑L‑98, 366‑R‑99, 1399‑L‑98,1148‑L‑98, 1188‑L‑98, 1193‑L‑98, 1198‑L‑98, 1290‑L‑98, 1097‑L‑98, 1329‑L‑98, and 1335‑L of 1998).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Object of S.2‑A, Service Tribunals Act, 1973‑‑‑Main object of the declaration made under S.2‑A of the Act was to provide a remedy of appeal to the employees of the Banks and others to safeguard their interests against the orders/actions taken by their Employers/ Corporation/Private Companies regarding action taken beyond the Rules/ Regulations/Statutes.

Mabood Khan v. Agricultural Development Bank of Pakistan 1989 SCMR 41 distinguished.

United Bank Limited through President v. Shahmim Ahmed Khan and 41 others PLD 1999 SC 990; Akram Zahoor v. Federation of Pakistan 2000 SCMR 1232 and Civil Petition No.2110‑L of 2000 ref.

Abid Hasan Minto, Senior Advocate Supreme Court with Meh Khan Malik, Advocate‑on‑Record for Petitioners.

M.A. Zaidi, Advocate‑on‑Record for Petitioners (in C.Ps Nos. 1554 to 1559 and 1580 of 2000).

Raja Muhammad Akram, Senior Advocate Supreme Court for Respondents (in C.Ps. Nos. 1554 to 1559 and 1580 of 2000).

Date of hearing; 21st November, 2000.

P L D 2001 Supreme Court 201

Present: Rana Bhagwan Das, Deedar Hussain Shah and Hamid Ali Mirza, JJ

SUI SOUTHERN GAS COMPANY LTD. ‑‑‑Petitioner

versus

COMMISSIONER OF INCOME‑TAX, COMPANIES‑V, INCOME‑TAX BUILDING, SHAHRAH‑E‑KAMAL ATATURK, KARACHI‑‑‑Respondent

Civil Petition No.299‑K of 2000, decided on 8th August, 2000.

(On appeal from the judgment, dated 26‑5‑2000 of the High Court of Sindh, Karachi in Income‑tax Appeal No.778 of 1999).

(a) Income‑tax‑‑‑

‑‑‑‑Penalty‑‑‑Fine‑‑‑Imposition‑‑‑"Penalty"‑‑‑Connotation‑‑‑Penalty is to be levied or fine is to be imposed on account of any criminal infraction/violation of the provision of law.

(b) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑Ss. 23 (xviii) & 136‑‑‑Natural Gas (Development Surcharge) Ordinance (I of 1967), S.3(3)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Allowable deduction‑‑‑Interest/compensation for delayed payment‑‑‑Such payment a deductible business expenses for the purpose of income‑tax‑‑‑Concurrent findings of fact by two forums below‑‑‑High Court disallowed deductions of two sums of Rs.34.06 millions on account of late payment of gas development surcharge and Rs.39.916 millions on account of late payment of gas bills as deductible business expenses by Income‑tax Authorities for assessment year 1997‑98‑‑Validity‑‑‑Interest/compensation for delayed payment had been provided in the statute as well as in the agreements, therefore, it might be non‑compliance with contractual obligations on the part of the petitioner to make additional payment as interest for compensation for late payment, but the same could not be said to be violation or infraction of criminal law‑‑‑Where the payments were made for the purpose of carrying on business to enable the assessee to carry on and earn profit in business and in absence of such payment the assessee could have suffered colossal losses, such payment could not be termed as a penalty or penal interest‑‑Such payments and disbursements made by the assessee were on account of commercial expediency to facilitate carrying on its business ‑‑‑Assessee would be entitled to deduction under S.23 of Income Tax Ordinance, 1979 as expenditures as laid out or expended wholly or exclusively for the purpose of business‑‑Decisions of Commissioner of Income‑tax (Appeals) and Income‑tax Appellate Tribunal were based upon concurrent findings of fact and there was no misreading or non‑reading of evidence‑‑‑If there was no violation of settled principles of law arising out of the orders passed by the two forums below, no interference was called for by the. High Court in appeal under S.136 of Income Tax Ordinance, 1979‑‑Petition for leave to appeal was converted into appeal and the order passed by the High Court was set aside by the Supreme Court.

(c) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑S.136‑‑‑Appeal‑‑‑Decisions of Commissioner of Income Tax (Appeals) and Income‑tax Appellate Tribunal were based upon concurrent findings of fact and there was no misreading or non‑reading of evidence‑‑‑If there was no violation of settled principles of law arising out of the orders passed by the two forums below, no interference was called for by the High Court in appeal under 5.136 of Income Tax Ordinance, 1979.

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court for Petitioner .

Nasrullah Awan, Advocate Supreme Court and S. M. Abbas, Advocate‑on‑Record for Respondent.

Date of hearing: 8th August, 2000.

P L D 2001 Supreme Court 207

Present: Muhammad Bashir Jehangiri, Sh. Riaz Ahmed and Munir A. Sheikh, JJ

Mian HAIDER KHAN‑‑‑Appellant

versus

MUSTAREEN and others‑‑‑Respondents

Civil Appeal No.22 of 1995, decided on 29th September, 2000.

(On appeal from the judgment dated 16‑6‑1994 of the Peshawar High Court, Peshawar passed in W.P. No.613 of 1994).

Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation (II of 1975)‑‑‑

‑‑‑‑Ss. 3 & 4‑‑‑Constitution of Pakistan (1973), Arts. 199 & 185‑‑­Constitutional jurisdiction of High Court‑‑‑Factual controversy‑‑‑Finding of fact recorded by Special Tribunal‑‑‑Scope‑‑‑Forum constituted under Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975, decided the matter against the petitioner and High Court did not find any misreading of evidence and failure of the forum to consider any material evidence‑‑‑Neither High Court in exercise of its Constitutional jurisdiction nor Supreme Court ordinarily interfere with the findings of fact recorded by Special Tribunals unless there was any clear misreading of evidence or any failure on their part to take into consideration any other material made available on record‑‑‑No infirmity of such kind having been noticed by Supreme Court interference was declined.

Ch. Waseem Ahmad, Advocate Supreme Court for Appellant.

Respondent in person.

Date of hearing: 29th September, 2000.

P L D 2001 Supreme Court 209

Present: Muhammad Bashir Jehangiri and Javed Iqbal, JJ

MUHAMMAD ANWAR and 8 others‑‑‑Petitioners

versus

MUHAMMAD ASHRAF‑‑‑Respondent

Civil Petition for Leave to Appeal No.1644 of 2000, decided on 21st November, 2000.

(On appeal from the judgment dated 27‑9‑2000 of the Lahore High Court, Lahore, passed in R.S.A. No.362 of 1983).

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 21‑‑‑Civil Procedure Code (V of 1908), S.153‑‑‑Constitution of Pakistan. (1973), Art. 185(3)‑‑‑Pre‑emption suit ‑‑‑Misdescription of defendant‑‑‑Name of one of the defendants was inadvertently described wrongly‑‑‑Plaintiff filed application for correction of the same but the Trial Court did not allow and the suit of the plaintiff was dismissed‑‑‑Lower Appellate Court allowed the appeal and judgment and decree of the Lower Appellate Court was upheld by the High Court ‑‑‑ Validity ‑‑‑ No‑mentioning of the correct name could be considered as a lapse or omission and the same amounted to misdescription of a party‑‑‑Such omission was always subject to correction which could be made by invoking the provisions as contained in 5.153, C.P.C.‑‑‑Technicalities should not be allowed to stand in the way of justice because procedure ought not to be used .for purpose of defeating justice and technicalities of procedure had to be avoided‑‑‑Independent of express jurisdiction conferred on Court by S.153, C.P.C., the Court also possessed inherent powers for allowing incorrect description of a party in the pleadings to be corrected‑‑‑Courts had rightly invoked the provisions of S.153, C.P.C. for rectifying the error‑‑‑Suit in the present case, had not been instituted against a wrong person but a right person whose correct name could not be mentioned due to inadvertent omission.

AIR 1961 SC 325; AIR 1940 Cal. 153; 1984 CLC 358; AIR 1961 Pat. 480; PLD 1979 Pesh. 31; Safiullah Khan v. P. I. A. Officers Cooperative Housing Society 1992 MLD 967 ref.

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

‑‑‑‑S. 153‑‑‑Misdescription of party‑‑‑Rectification of omission‑‑­Limitation‑‑‑Bona fide mistake or misdescription can be rectified at any time and no time limit has been specified under S.153, C.P.C.

Ghulam Nabi v. Sardar Nazir Ahmad 1985 SCMR 824 ref.

(c) Administration of justice‑

‑‑‑‑ Valuable rights, creation of‑‑‑Such rights cannot be created on the bases of bona fide mistake and hence the question of infringement does not arise.

Kh. Muhammad Farooq, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 21st November, 2000.

P L D 2001 Supreme Court 213

Present: Munir A. Sheikh and Javed Iqbal, JJ

MUHAMMAD ASLAM‑‑‑Petitioner

versus

Mst. FEROZI and others‑‑‑Respondents

Civil Petition for Leave to Appeal No. 1892 of 2000, decided on 30th November, 2000.

(On appeal from judgment dated 25‑10‑2000 passed by the Lahore High Court, Multan Bench, in R.S.A. No.515 of 1977).

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

‑‑‑‑S. 100‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Second appeal‑‑­Concurrent findings of facts‑‑‑Such findings when could be interfered with by High Court in second appeal‑‑‑Suit filed by the petitioner was time‑barred under the provisions of Art. 113 of Limitation Act, 1908, but the same was decreed by the Trial Court as well as by Lower Appellate Court concurrently‑‑‑High Court in exercise of its appellate jurisdiction reversed the concurrent findings of both the Courts below‑‑‑Validity‑‑‑Concurrent findings could not be considered as sacrosanct and High Court was competent to interfere if such findings were based on insufficient evidence, misreading of evidence, non‑consideration of material evidence, erroneous presumption of facts and consideration of inadmissible evidence‑‑‑Case of the petitioner was time‑barred which escaped notice and resulted in miscarriage of justice‑‑‑High Court had rightly reversed the concurrent findings of both the Courts below.

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

‑‑‑‑Ss. 10 & 42‑‑‑Suit for possession‑‑‑Suit for possession is not maintainable without seeking declaration in respect of title.

Syed Murtaza Ali Zaidi, Advocate Supreme‑Court for Petitioner.

Nemo for Respondents.

Date of hearing: 30th November, 2000.

P L D 2001 Supreme Court 216

Present: Hamid Ali Mirza and Abdul Hameed Dogar, JJ

LIAQAT ALI ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Jail Petition No.40 of 2000, decided on 16th October, 2000.

(On appeal from the judgment dated 3‑9‑1998 passed by the Lahore High Court, Lahore in Criminal Appeal No.435 of 1992).

Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Re‑appraisal of evidence‑‑‑Plea of right of self‑defence‑‑‑Raising of such plea at appellate stage‑‑‑Accused was convicted by the Trial Court and sentenced to death‑‑­Accused during appeal, for the first time, raised plea of right of self‑defence of his property but the appeal was dismissed and death sentence was confirmed by the High Court‑‑‑Validity‑‑‑Accused could not get the benefit of the plea as the same had never been agitated during the trial‑‑‑Where the plea of self‑defence was not specifically pleaded before the Trial Court the same could not be considered at the appeal stage‑‑‑Deceased was unarmed and it was the accused party who were fully armed and acted in premeditation and committed murder intentionally‑‑‑Testimony of the eye­witnesses was trustworthy, reliable, confidence‑inspiring and corroborated by other pieces of evidence such as medical, motive and recoveries‑‑‑Leave to appeal against conviction was refused., Malik Ain‑ul‑Haq, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 16th October, 2000.

P L D 2001 Supreme Court 219

Present: Nazim Hussain Siddidui and Rana Bhagwan Das, JJ

Prof. NOOR MUHAMMAD KHAN MARWAT, PRINCIPAL, LUCKY COLLEGE OF EDUCATION AND RESEARCH, LAKKI MARWAT‑‑‑Petitioner

versus

VICE‑CHANCELLOR, GOMAL UNIVERSITY, DERA ISMAIL KHAN and 2 others‑‑‑Respondents

Civil ‑Petition for Leave to Appeal No.1631 of 20(10, decided on 31st October, 2000.

(On appeal from the judgment of Peshawar High Court Circuit Bench, D.I.Khan, dated 19‑10‑2000 passed in Writ Petition No.158 of 2000).

Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 185(3)‑‑‑Educational institution‑‑‑Affiliation of private institution with University‑‑‑University declined to allow affiliation to the institution‑‑­Such refusal was assailed in Constitutional petition which was dismissed by High Court‑‑‑Validity‑‑‑Unless University Authorities transgressed the scope of their authority or acted in violation of statute, Courts were always loath to interfere with the smooth administration of Universities‑‑‑Petitioner had been unable to point out any act of discrimination or contravention of the statute‑‑­High Court had rightly declined to exercise its extraordinary jurisdiction in the matter‑‑‑Supreme Court declined to interfere in the discretion exercised by the High Court‑‑‑Leave to appeal was refused.

Khushdil Khan, Advocate Supreme Court and Zahoor Qureshi Azad, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 31st October, 2000

P L D 2001 Supreme Court 222

Present: Abdur Rehman Khan, Iftikhar Muhammad Chaudhry and Abdul Hameed Dogar, JJ

MUHAMMAD IQBAL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.407 of 1995, decided on 4th October, 2000.

(On appeal from the judgment dated 13‑3‑1995 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Criminal Appeal No. 106 of 1992 and Murder Reference No. I of 1993).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the alleged discrepancies made the prosecution case reasonably doubtful or the same were immaterial; whether the motive was strong enough to motivate the accused to take the life of his father‑in‑law; and whether the sentences awarded to the accused by High Court were excessive where the eye‑witnesses were close relatives and one of the witnesses was not produced.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Murder‑‑‑Substitution of accused person‑‑‑Validity‑‑‑Substitution of accused person who is actually involved in the commission of offence falling under S.302, P.P.C. is a rare phenomenon particularly in an incident in which single accused is involved by nominating him in the F.I.R. from the very beginning‑‑‑Where the parties are inter se related to each other due to close kinship the theory of substitution cannot be accepted.

Siraj Din v. Kala and another PLD 1964 SC 26; Rahim Bakhsh v. Muhammad Iqbal and others 1976 SCMR 528; Zar Bahadar v. The State 1978 SCMR 136; Muhammad Ayub alias Nikka v. The State PLD 1983 SC 27; Shaukat Javed v. The State PLD 1993 Pesh. 109 and Ameer Ali v. The State 1999 MLD 758 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Contradiction and improvements in the evidence‑‑‑Court is required to take into consideration the intrinsic value of the evidence instead of labouring unnecessarily to find out such contradictions and improvements in the evidence which ultimately turns to nothing.

Mushtaq alias Shaman v. The State PLD 1995 SC 46 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Re‑appraisal of evidence‑‑‑Motive‑‑‑Prosecution had furnished consistent and trustworthy evidence‑‑‑Crime empty recovered from the place of occurrence matched with the weapon recovered from the accused after his arrest‑‑‑Sentence of death awarded by the Trial Court was converted into life imprisonment by the High Court‑‑‑Contention by the accused was that since motive was not proved by the prosecution conviction and sentence were wrongly awarded to him by the High Court‑‑‑Validity‑‑‑Accused had committed murder of the deceased in a cruel manner and if there was any weakness in establishing the motive, its benefit had already been extended to the accused by inflicting lesser punishment instead of normal penalty of death, although ugh accused could not claim as a matter of right the benefit if the motive for the commission of the offence was not established or was weak..

Iqbal alias Bhala and 2 others v. The State 1994 SCMR 1 and Noor Muhammad v. The State 1999 SCMR 2722 ref.

Ch. Muhammad Akram, Advocate Supreme Court for Appellant.

Arshad Ali Chaudhry, Advocate Supreme Court for the State.

Date of hearing, 4th October, 2000.

P L D 2001 Supreme Court 228

Present: Nazim Hussain Siddiqui and Rana Bhagwan Das, JJ

BASHIR AHMAD‑‑‑Petitioner

versus

MUHAMMAD SHARIF and 4 others‑‑‑Respondents

Civil Petition for Leave to Appeal No.1919‑L of 1998, decided on 31st October, 2000.

(On appeal from the order of Lahore High Court, Multan Bench, Multan, dated 4‑11‑1998 passed in Review Application No.6‑C of 1998 in Civil Revision No.711 of 1997).

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

‑‑‑‑O. IX, R.13‑‑‑Order setting aside ex parte decree does not amount to a decree and in fact no decree is drawn.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 14‑‑‑Expression "prosecuted in good faith" ‑‑‑Connotation and scope‑‑­Mistaken advice of counsel‑‑‑Prosecution of appeal in the wrong forum‑‑­Benefit of S. 14, Limitation Act, 1908‑‑‑Validity‑‑‑Mistaken advice of the. counsel was not a sufficient cause for condonation of delay‑‑­Institution of legal proceedings before a wrong forum without due diligence could not be treated as prosecution of remedy "in good faith" with due diligence‑‑‑Provisions of S. 14, Limitation Act, 1908, permit exclusion of time only for proceedings, "prosecuted in good faith"‑‑‑In order to seek exclusion of time spent in legal proceedings, it must be proved that party had acted in good faith while prosecuting his case in the wrong Court.

(c) Maxim‑

‑‑‑‑Ignorance of law is no excuse.

(d) Limitation Act (IX of 1908)‑‑

‑‑‑‑Ss. 14 & 5‑‑‑Proceedings in wrong forum‑‑‑Counsel and client, relationship of‑‑‑Negligence of counsel‑‑‑Remedy‑‑‑Where the mistake in approaching the wrong forum was committed by the counsel due to gross negligence and it did not appear on the face of record that the counsel had shown due diligence and caution before moving the wrong forum, the only remedy for the client was to sue the counsel for damages for the loss suffered due to the negligence.

Sherin v. Fazal Muhammad 1995 SCMR 584; Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Muhammad Saeed v. Shahabuddin PLD 1983 SC 385; Nek Muhammad v. Assistant Commissioner, Jhelunt 1986 SCMR 1493 and Ghulam Ali v. Akbar PLD 1991 SC 957 ref.

Pir Kaleem Khurshid, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record (absent) for Petitioner.

Maulvi Sultan Ahmed, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondents.

Date of hearing: 31st October, 2000.

PLD 2001 S C 233

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Muhammad Bashir Jehangiri, Abdur Rehman Khan, Sh. Riaz Ahmed, Ch. Muhammad Arif, Munir A. Sheikh, Rashid Aziz Khan, Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhry, Qazi Muhammad Farooq and Rana Bhagwan Das, JJ

WASIM SAJJAD and others‑‑‑Petitioners

versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division and others‑‑‑Respondents

Civil Review Petitions Nos.208 of 2000 in Constitutional Petition No.63 of 1999, Civil Review Petition No.209 of 2000 in Constitutional Petition No.62 of 1999, Civil Review Petition No.210 of 2000 in Constitutional Petition No.62 of 1999 alongwith Civil Miscellaneous Applications Nos.1113 and 1119 of 2000 in Civil Review Petition No.208 of 2000, decided on 7th February, 2001.

(On review of judgment dated 12‑5‑2000/29‑5‑2000 passed by this Court in Constitution Petitions Nos.62/99, 63/99, 53/99, 57/99, 3/2000, 66/99 and 64/99).

(a) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra ?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Precedents from foreign jurisdictions‑‑?Applicability ‑‑‑Precedents from. foreign jurisdictions, though entitled to reverence and respect but were not ipso facto applicable to the facts and circumstances prevailing on the day of taking over by the Armed Forces.

(b) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra? constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Doctrine of State necessity‑‑‑Applicability‑‑‑To save and maintain the integrity, sovereignty and stability of the country and having regard to the welfare of the people while interpreting the legislative instruments i.e. Provisional Constitution Order, 1999 and Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999, Court had to make every attempt to save "what institutional values remained to be saved with a view to maintaining and upholding the independence of Judiciary which, in turn, would protect the State fabric and guarantee Human/Fundamental Rights‑‑‑Theory of State necessity would arise only if an act which would otherwise be illegal becomes legal if it is done bona fide in view of State necessity‑‑‑Doctrine of State necessity had not been rejected in the judgment of Supreme Court in Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504‑‑‑Prerequisites of doctrine of State necessity stated.

(c) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Factors‑‑‑Validity‑‑‑Doctrine of State necessity ‑‑‑Application‑‑?Court faced extra‑constitutional situation and all the elements viz. inevitable necessity; exceptional circumstances; no other remedy to apply, measures taken being proportionate to the necessity and of temporary character, limited to the duration of exceptional circumstances, were present, inasmuch as, the Constitution provided no solution to meet the extraordinary situation prevailing 'on 12th October, 1999 when the Armed Forces took over the affairs of Pakistan.

(d) State necessity, doctrine of‑‑‑

‑‑‑‑Applicability‑‑‑Elements‑‑‑Inevitable necessity; exceptional circum?stances; no other remedy to apply; measures taken being proportionate to the necessity and of temporary character, limited to the duration of exceptional circumstances, were the elements for application of the doctrine.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment‑‑‑If nothing had been overlooked by the Supreme Court nor the Court had failed to consider any important aspect of the matter, review petition would not sustain.

(f) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art. 2A‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Revolutionary political change was not in derogation of the Objectives Resolution under Art.2A of the Constitution.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment ‑‑‑Reagitation of the same issues through review petition was beyond the scope of review.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.188‑‑‑Supreme Court ,Rules, 1980, O.XXVI, R.1‑.,Review of Supreme Court judgment‑‑‑Raising of factual controversies would amount to rearguing the same cause which was not permissible under law.

(i) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑‑Extra? constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Collapse of economy of the country was not the only ground for intervention of the Armed Forces, as a matter of fact, the material relied upon and remarks made by the Supreme Court were in response to the assertions made by the parties in their petitions.

(j) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑‑Constitution of Pakistan (1973), Arts. 188, 184(3) & 91(4)‑‑?Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment‑‑‑Principle of joint and ministerial responsibility in. Parliamentary System‑‑‑Contention was that in a parliamentary system, the principle of joint ministerial responsibility was applied to the cabinet, inasrtluch as every minister, whether he agreed to a particular decision of the Cabinet or not, must own such decision‑‑‑Validity‑‑‑Such principle could not be extended to the members of the Parliament, as the function of the Parliament was not merely to remove the Government but also to legislate and carry out accountability of the Government through Parliamentary Committees in accordance with the procedure, where questions were asked and adjournment motions introduced‑‑‑Accountability by Court, however, was also an on going exercise.

Begum Nusrat Bhutto v. Chief of the Army Staff and Federation of Pakistan PLD 1977 SC 657; Sh. Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Mehmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Constitutional and Administrative Law by Barnett; Disenchantment with Parliamentary Democracy by A.K. Brohi, published in PLD 1977 Jour. 81; Pakistan Fisheries Ltd., Karachi v.: United Bank Ltd. PLD 1993 SC 109; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Dr. Muhammad Iqbal v. Haji Muhammad Akrarn PLD 1991 Lah. 8; Syed Ghayyur Hussain Shah v. Gharib Alam PLD 1990 Lah. 432; Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1997 SC 865; Mohtarma Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; State of Emergency; The Indian Experience by Venkat Iyer; State of Maharashtra v. Ramdas Shrinivas Nayak AIR 1982 SC 1249 = 1982 Cr.LJ 1581; The Superintendent, Land Customs, Torkham (Khyber Agency) v. Zewar Khan and 2 others PLD 1969 SC 485; Dawarkadas and another v. The State PLD 1957 SC (Pak.) 72; Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189; Abdul Ghaffar‑Abdul Rehman v. Asghar Ali PLD 1998 SC 363; Kh. Ahmed Tariq Rahim PLD 1992 SC 646; Mian Muhammad Nawaz Sharif s case PLD 1993 SC 473; Benazir Bhutto's case PLD 1998 SC 388 and Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026 ref.

(k) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Oath of Office of (Judges) Order (1 of 2000), Preamble‑‑?Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Extra‑constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Action of taking over the affairs of Pakistan by the Armed Forces qualifies for validation on the ground of state necessity/survival‑‑‑Status of the Government was de facto but in view of the validation it has attained the status of a de jure government‑‑‑Representatives of the people were to see to it that everything was in order and no body could raise his little finger when their actions were in line with the fundamentals of the Constitution‑‑‑No rule except that by the representatives of the people within contemplation of the Constitution and the law has the support of the superior Judiciary which is firmly committed to the governance of the country by the peoples' representatives according to the definition of the term "democracy" to the effect that "it is Government of the people, by the people and for the people" and not by the Army rule for an indefinite period‑‑‑Validation and legitimacy accorded to the Government by the Supreme Court is conditional, and interlinked with the holding of general elections to the National Assembly and the Provincial Assemblies and the Senate of Pakistan within the time frame laid down by the Supreme Court leading to restoration of the democratic institutions‑‑‑Pakistan must have democracy and any obstacles in respect of achieving that goal must be overcome‑‑‑Chief Executive/Armed Forces have no power to amend the salient features of the Constitution (1973) relating to independence of judiciary, federalism and parliamentary form of Government blended with Islamic provisions‑‑‑Legitimacy conferred on the Regime, on the touchstone of the doctrine of state necessity/state survival, does not imply abdication of the power of judicial review in the transient suspension of the previous legal order ‑‑‑Constitution of Pakistan (1973) still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of state necessity/state survival‑‑‑Notwithstanding the purported ouster of jurisdiction of all the Courts to challenge any action, order or law promulgated by the Chief Executive, every action of the Chief Executive/Armed Forces is open to judicial review through appropriate writs/petitions in line with the principles laid down in the Supreme Court judgment in Syed Zafar Ali Shah v. General Pervaiz Musharraf, Chief Executive of Pakistan PLD 2000 SC 869‑‑‑Fundamental Rights are intact and justiciable ‑‑‑Supreme Court observed that prolonged involvement of the Army in civil affairs runs a grave risk of politicising it, which would not be in the national interest, therefore, civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives which necessitated the military take‑over, as spelt out in the speeches of the Chief Executive dated 13th and 17th October, 1999‑‑‑Chief Executive has been allowed by the Supreme Court three years period with effect from the date of the Military take‑over (12th October, 1999) for achieving his declared objectives and to appoint a date, not later than 90 days before the expiry of the aforesaid period of three years for holding general elections to the National Assembly and Provincial Assemblies and the Senate of Pakistan‑‑‑Positive assurance has also been reaffirmed by the Chief Executive in respect of holding of general elections within the time frame laid down by Supreme Court for restoration of democratic institutions.

The Chief Executive/Armed Forces have no power to amend the salient features of the Constitution relating to independence of judiciary, federalism and parliamentary form of Government blended with Islamic provisions. Prolonged involvement of the Army in civil affairs runs a grave risk of politicising it, which would not be in the national interest, therefore, civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives which necessitated the Military Takeover, as spelt out in the speeches of the Chief Executive, dated 13th and 17th October, 1999. The legitimacy conferred on the present Regime, on the touchstone of the doctrine of state necessity/state survival, does not imply abdication of the power of judicial review in the transient suspension of the previous legal order. Constitution of 1973 still remains the supreme law of the land subject to the condition that certain parts thereof have been held in abeyance on account of state necessity/state survival. The result is that notwithstanding the purported ouster of jurisdiction of all the Courts in Pakistan to challenge any action, order or law promulgated by the Chief Executive, every action of the Chief Executive/Armed Forces is open to judicial review through appropriate writs/petitions in line with the principles laid down in the judgment (Syed Zafar Ali Shah v. General Pervaiz Musharraf, Chief Executive of Pakistan PLD 2000 SC 869). Similarly, the Fundamental Rights were also intact and justiciable.

The action of 12th October, 1999 being what it is, qualifies for validation on the ground of state necessity/survival. It is ‑ for the representatives of the people to see to it that everything is in order and nobody can raise his little finger when their actions are in line with the fundamentals of the Constitution. No rule except that by the representatives of the people within the contemplation of the Constitution and the law has the support of the Superior Judiciary. Judiciary is firmly committed to the governance of the country by the peoples' representatives and Supreme Court reiterated the definition of the term 'democracy' to the effect that "it is Government of the people, by the people and for the people'.' and not by the Army rule for an indefinite period.

Though initially the status of the present Government was de facto, but in view of the validation it has attained the status of a de jure Government. The validation and legitimacy accorded to the present Government is conditional and interlinked with the holding of general elections to .the National Assembly, the Provincial Assemblies and the Senate of Pakistan within the time frame laid down by the Supreme Court leading to restoration of the democratic institutions.

No one could disagree that Pakistan must have democracy and any obstacles in respect of achieving that goal must be overcome.

Pakistan has a chequered political history eversince it attained its legal birth and freedom with the adoption of Government of India Act, 1935 ' as an interim Constitution along with the Indian Independence Act, 1947. Unfortunate as it is, after the demise of Quaid‑e‑Azam Muhammad Ali Jinnah, there has been a political vacuum in the country and malfunctioning of the institutions giving rise to military intervention in the civil affairs of the country time and again. Irrespective of the causes for., military intervention, its prolonged involvement in the civil affairs will not only politicise it but would also affect its professionalism in defending the borders of Pakistan. Such a course can never be countenanced by Supreme Court. Positive assurance has been made by the Chief Executive in respect of holding of general elections within the time frame laid down by Supreme Court for restoration of democratic institutions.

Supreme Court also reaffirmed by way of emphasis that the validation and legitimacy accorded to the present Government is conditional, interlinked and intertwined with the holding of general elections to the National Assembly and the Provincial Assemblies and the Senate of Pakistan within the time frame laid down by Supreme Court leading to restoration of the democratic institutions. .

Since the Chief Executive was claiming in the Oath of Office (Judges) Order, 2000 (Order No. 1 of 2000), legislative power to amend the Constitution, in the absence of appropriate representative institutions, it was the duty of Supreme Court to place checks on it. After considering all the attending circumstances, limited powers of amendment were conferred as highlighted in the judgment under review and reaffirmed in the Short Order dated 7‑2‑2001.

The matter was heard for months together in which over twenty?five Advocates of Supreme Court including Senior Advocates and amicus curiae addressed the Court. The judgment under review was rendered after threadbare consideration of each and every aspect of the matter, the case‑law' cited at the Bar as also the pleadings of the parties vide reasons assigned in paragraphs No. 221 to 287, which did not suffer from any error or flaw whatsoever warranting interference.

(l) Accountability‑‑‑

‑‑‑‑ Accountability is an ongoing process and the same shall continue with a view to completing it even by the successive Governments.

(m) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Oath of Office of (Judges) Order (1 of 2000), Preamble‑‑?Proclamation of Emergency by. Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art. 188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment‑‑‑Extra? constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑No glaring omission or patent mistake floating on the surface in the judgment under review was found‑‑‑Nothing had been overlooked by the Court nor the Court had failed to consider any aspect of the attending matters‑‑‑In situation prevailing on or before the take‑over of affairs of the country by the Armed Forces for which the Constitution provided no solution, the Armed Forces had to intervene to save the State from further chaos, and for maintenance of peace and order, economic stability, justice, good governance and to safeguard the integrity and sovereignty. of the country dictated by the highest considerations of state. necessity and welfare of the people‑‑‑Argument advanced by the petitioners was that none of the alleged grievances against the removed government, including the charges of corruption and lack of good governance, was such. which could not have been redressed within the four corners of the Constitution because laws and machinery to redress such grievances were already in existence and, if as alleged, the Government of the day did not take appropriate steps, it was open to the Supreme Court to direct the taking of specific steps in exercise of the powers under Art.184(3) read with Art.187 of the Constitution, therefore 'observations of Supreme Court that law of necessity could validly be invoked to suspend the Constitution as it had no answer to the situation that had arisen, needed to be reviewed ?Argument advanced having also been raised at the time of judgment under review and repelled, petitioners could not be allowed to re‑argue the same in proceedings of review of the said judgment‑‑‑Petitioners could not be permitted to seek reversal of conclusions earlier reached by the Supreme Court after full application of mind deliberatively and consciously in the judgment sought to be reviewed.

(n) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Oath of Office of (Judges) Order (1 of 2000), Preamble‑‑?Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment‑‑‑Extra‑constitutional step of taking over the affairs of Pakistan by the Armed Forces‑‑‑Validity‑‑‑Rampant corruption was only a cumulative. reason for the validation of action of take‑over by the Armed Forces which resulted into the suspension of Assemblies and removal of the Government as succinctly explained in the judgment under review.

(o) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Oath of Office of (Judges) Order (1 of 2000), Preamble‑‑?Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art. 188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment ‑‑‑Extra ?constitutional step of taking over the affairs of Pakistan by the Armed Forces‑‑‑Validity‑‑‑Collapse of economy was not the only ground for intervention of Armed Forces; as a matter of fact the material relied upon and remarks made by the Court were in response to the assertions made by the petitioners in their original petitions in the case under review.

(p) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Oath of Office of (Judges) Order (1 of 2000), Preamble‑‑?Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art. 188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment‑‑‑Extra? constitutional step of taking over the affairs of Pakistan by the Armed Forces‑‑‑Validity‑‑‑When the country was faced with .a grave crisis, the constitutional maintenance demanded that the Court interpreted the Proclamation of Emergency and Provisional Constitution Order, 1999 in such a way as to authorise whatever powers and measures were necessary to cope with the emergency as the Supreme Court could not be expected to do the impossible.

(q) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Oath of Office of (Judges) Order (1 of.2000), Preamble‑‑?Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973),‑ Art.188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment ‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces‑‑‑Validity‑‑‑Powers of Chief Executive to amend the Constitution‑‑?Extent‑‑‑Power to amend the Constitution cannot be conferred on the Chief Executive of the measure larger than that which could be exercised by the Parliament‑‑‑Chief Executive was allowed to amend the Constitution subject to stated limitations/conditions for the ordinary orderly running of affairs of the State during the transitory period to advance or promote the good of the people‑‑‑Constitutional amendments by the Chief Executive could be resorted to only if the Constitution failed to provide a solution for attainment of his declared Objectives.

(r) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment‑‑‑Conditions‑‑‑Where there was no error on the face of the record warranting review, the petitioners could not be allowed under the law to re‑agitate the same points which had already been heard and decided by the Court‑‑‑Factual controversies could not be raised and fresh material which had been filed with the review petitions which existed even prior to the filing of original case and no reason had been advanced as to why the same was not produced with the former or during the course of hearing of the same, could not be considered by the Court unless strong reasons were mentioned for its non‑production at the relevant time‑‑‑Fresh documents, in any event, would have no bearing on the conclusion. already recorded in the judgment under review.

(s) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Arts. 188 & 184(3)‑‑‑Review of Supreme Court judgment‑‑‑Extra‑constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Legislative instruments promulgated by the Chief Executive were subject to scrutiny by Supreme Court.

(t) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Oath of Office of (Judges) Order (1 of 2000), Art.3‑‑?Constitution of Pakistan (1973), Arts.188, 184(3) & 199‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment ‑‑‑Extra ?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Judicial review‑‑‑Scope‑‑‑No form of oath taken by or administered to the Judges of the superior Courts could restrict the judicial power and derogate from the legal position that the Courts; as final arbiters in any constitutional controversy, retain their power and jurisdiction to say as to what a particular provision of the Constitution or the law meant, or did not mean even if that particular provision was one seeking to oust jurisdiction of the Court.

(u) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.2A & 175‑‑‑Independence of judiciary‑‑‑Objectives Resolution and Declaration of Quaid‑i‑Azam about democratic set‑up and social justice envisage independence of judiciary.

(v) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.2A & 175‑‑‑Judiciary is entrusted with the responsibility for enforcement of Fundamental Rights.

(w) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.2A & 175‑‑‑Exclusive power/responsibility of the Judiciary to ensure the sustenance of system of separation of powers based on checks and balances.

(x) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Oath of Office .of (Judges). Order (1 of 2000), Art.3‑‑?Constitution of Pakistan (1973), Arts. 188, 184 & 199‑‑‑Extra‑constitutional step of taking over the affairs of Pakistan‑ by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Judicial review‑‑‑Scope‑‑‑Contention that after new oath of Judges under Art.3, Oath of Office of (Judges) Order, 2000, the Judges were bound to defend the Provisional Constitution Order, 1999 was repelled in the light of Begum Nusrat Bhutto's .case PLD 1977 SC 657 wherein it was clearly stated that on no principle of necessity could the power of judicial review be taken away.

(y) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Oath of Office of (Judges) Order (1 of 2000), Art.3‑‑?Constitution of Pakistan (1973), Arts. 184 & 199‑‑‑Extra‑constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑?Validity‑‑‑Judicial review‑‑‑Scope‑‑‑Superior Courts retain the power of judicial review after the Army take‑over‑‑‑Evolution of judicial power was coterminous with the evolution of civilization and that was because judicial power had to check the arbitrary exercise of power by any organ or authority.

(z) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art. 184‑‑‑Penal Code (XLV of 1860), 5.120‑A‑‑‑Extra‑constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Factors‑‑‑Removal of Chief of Army Staff during his absence from the country and appointment of another person as such was an attempt to create dissension among the Armed Forces, criminal conspiracy hatched by the Prime Minister and others.

(aa) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art. 184‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Doctrine of state necessity and principle "salus populi suprema lex"‑‑‑Applicability‑‑‑Intervention of Armed Forces as such was validated by Supreme Court on the doctrine of state necessity and the principle "salus populi est suprema lex".

(bb) Provisional Constitution Order (1 of 1999)--

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art. 184‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Doctrine of state necessity and principle of "salus populi est suprema lex"‑‑‑Applicability‑‑‑Allegation of corruption against the Prime Minister and his colleagues, disappearance of public faith in the integrity and honesty of the Government which eroded the constitutional and moral authority of the Government was a situation somewhat similar to the one prevalent in July, 1977.

(cc) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art. 184‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Factor‑‑‑Doctrine of state necessity and principle of "salus populi est suprema lex"‑‑‑ Applicability‑‑‑Government was being run contrary to the provisions of the Constitution, the Armed Forces were compelled to move in as a, last resort to 'prevent any further destabilization.

(dd) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution??????????? of??????????? Pakistan . (1973), ??????????? Art. 184‑‑‑Extra‑ constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Factor‑‑‑Doctrine of state necessity and principle of "salus populi est suprema lex"‑‑‑Applicability‑‑‑Government having failed to, eradicate corruption from the society, corruption and absence of good governance were recognized grounds for imposition of Martial law‑‑‑Corruption, however, by itself is a ground for imposition of Martial Law or Proclamation of Emergencies‑‑‑ "Corruption" defined.

(ee) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Allegations of corruption etc. against parliamentarians or politicians or members from the general public‑‑‑Proceedings commenced against all said persons were to be decided on their own merits in accordance with law and on the basis of the legally admissible material brought before the concerned fora in those proceedings and only after the finalisation of the said proceedings that the country will be geared up for resort to democratic principles and corruption‑free ''society which are pre?requisites for good governance.

(ff) Provisional Constitution order (1 of 1.999)‑‑‑

‑‑‑‑Preamble‑‑=Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan ‑‑‑Factors‑‑‑Validity‑‑‑Misdeclaration of assets both before the Wealth Tax Authorities and the Election Commission and allegations of massive corruption and corrupt practices by the large number of politicians and parliamentarians by itself may not be a ground for intervention of the Armed Forces but such aspect of the matter, when viewed in the overall context and with particular reference to the alleged massive corruption and corrupt practices, becomes a relevant factor.

(gg) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Factors‑‑‑Validity‑‑‑Combined effect of the overall policies and methodology adopted by the former Government was the total collapse of the country's economy inasmuch as G. D. P. growth during the past three years had hardly kept pace with the growth of population and Pakistan had a debt burden which equalled the country's entire national income‑‑‑Supreme Court also took .judicial notice of the fact that the trade imbalance was persistent and due to defective economic policies and lack of economic discipline by the previous Government, the industrial sector had suffered a great set back.

(hh) Provisional Constitution Order (l of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Cbnstitution of. Pakistan (1973), Art.184(3):‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Factors‑‑‑Validity‑‑‑On the day when the Army took over and for years prior to that time there was merely a feigned appearance of what could be called a form of "oligarchy" which means a Government in which the authority constitutionally reposes in a few. individuals and families and a small coterie of individuals who, because of economic and other power, could influence measurably the policy of the Government ‑‑‑Purposes for which the representative institutions were established stood defeated directly or indirectly‑‑‑Supreme Court was thus faced with a situation not visualized by the Constitution.

(ii) Provisional constitution Order (1 of 1999)‑‑‑

‑‑=‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Arts.184(3) & 91(4), (5)‑‑‑Extra‑constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Suspension of Assemblies and the Senate through extra‑constitutional measures by the Chief of Army Staff‑‑?Factors‑‑‑Validity‑‑‑Doctrine of state necessity‑‑‑Applicability‑‑‑Role of public representatives‑‑‑Principle of joint and ministerial responsibility in Parliamentary system‑‑‑Rest of the members of representative bodies cannot be absolved of their responsibility if, despite wrongdoings by the cabinet, they remained silent spectators‑‑‑Suspension of the Assemblies and the Senate through extra‑constitutional measures taken by the Chief of Army Staff, warranted validation on the ground of state necessity and state survival.

(jj) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.58(2)(b) [since repealed]‑‑‑Dissolution of National Assembly‑‑?Balance governing the powers of the President and the Prime Minister‑‑?Never safe to confer unfettered powers on a person who was holding the reins of the affairs of the country as "power corrupts and absolute corrupts absolutely"‑‑‑Situation could have been avoided if checks and balances governing the powers of the President and the Prime Minister had been in the field by means of Art.58(2)(b) of the Constitution of Pakistan (1973).

(kk) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Arts.184(3) & 63(2)‑‑?Extra‑constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Factors‑‑‑Validity‑‑‑Ridiculing the Judiciary and taping of telephones of Judges of superior Courts‑‑‑Debates of Parliament of the relevant period clearly demonstrated that integrity and independence of the Judiciary of Pakistan were challenged by the Members of Parliament which had the effect of defaming and bringing the Judges into ridicule and disparaging remarks against the Judiciary crossed all limits and no Reference was made to the Chief Election Commissioner for their disqualification as Members of the Parliament under Art.63(2) of the Constitution of Pakistan (1973)‑‑‑Such acts of taping the telephones of Judges of the superior Courts and maligning the Judiciary were most detestable, immoral, illegal and unconstitutional.

(ll) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Factors‑‑‑Validity‑‑‑Doctrine of State necessity‑‑?Applicability‑‑‑Machinery of the Government at the Centre and the Provinces had completely broken down and the Constitution had been rendered unworkable, and a situation had arisen for which the Constitution provided no solution and the Armed Forces had to intervene to save the state from further chaos, for maintenance of peace and order, economic stability, justice and good governance and to safeguard integrity and sovereignty of the country dictated by highest considerations of state necessity and welfare of the people.

(mm) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Doctrine of state necessity‑‑‑Applicability‑‑‑To save and maintain the integrity, sovereignty and stability of the country and having regard to the welfare of the people while interpreting the legislative instruments i.e. Provisional Constitution Order, 1999 and Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999, Court has to make every attempt to save "what institutional values remained to be saved" with a view to maintaining and upholding the independence of Judiciary which in turn would protect the state fabric and guarantee Human/Fundamental Rights‑‑‑Doctrine of State necessity had not been rejected in the judgment of Supreme Court in Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504‑‑‑Prerequisites of doctrine of state necessity stated.

(nn) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated. 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Factors‑‑‑Validity‑‑‑Doctrine of state necessity ‑‑‑Application‑‑?All the elements viz. inevitable necessity; exceptional circumstances; no other remedy to apply, measures taken being proportionate to the necessity and of temporary character limited to the duration of exceptional circumstances, were present, inasmuch as the Constitution provided no solution to meet the extraordinary situation prevailing on 12th October, 1999 when the Armed Forces took over the affairs of Pakistan.

(oo) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Doctrine of state necessity ‑‑‑Applicability‑‑?Intervention by the Armed Forces on 12th October, 1999 was an imperative and inevitable necessity in view of the exceptional circumstances prevailing at that time, and, therefore, there was no valid justification for not validating the extra‑constitutional measure of the Armed Forces on the technical distinction between "doctrine of necessity" and the "doctrine of state necessity" which. in fact, was not material.

?(pp) State necessity, doctrine of‑‑?

‑‑‑‑Applicability‑‑‑Principles.

Classics of International Law by Hugo Grotius quoted.

(qq) Prerogative of the Crown‑‑‑?

‑‑‑‑Relative duties and rights of the subject‑‑‑Principles.

Treatise on the Law of the Prerogative of the Crown by Joseph Chitty ref.

(rr) State necessity, doctrine of‑‑‑

‑‑‑‑"Necessity"‑‑‑Defined.

Corpus Juris Secundum ref.

(ss) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.232‑‑‑Proclamation of Emergency‑‑‑State of emergency‑‑?Interpretation‑‑‑State of emergency includes "regimes of exception" i.e. regimes which have overthrown and not merely suspended the previous constitutional order and have assumed legislative and executive powers analogous to those under a formal state of emergency‑‑‑Government to take steps to ensure that the Fundamental Rights of citizens are not affected and derogation must be proportionate to the emergency, while adopting constitutional as well as extra‑constitutional means‑‑‑Effort to be made to, minimize emergencies and to induce the authorities concerned to respect the Fundamental Rights.

?(tt) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Doctrine of state necessity ‑‑‑Applicability‑‑?Conditions‑‑‑Invocation of the "doctrine of State necessity" depends upon the peculiar and extraordinary facts and circumstances of a particular situation‑‑=Superior Courts alone can decide as to whether any given peculiar and extraordinary circumstances warrant the application of doctrine of State necessity or not‑‑‑Such dependence has a direct nexus with what preceded the action itself‑‑‑Material available on record generally will be treated at par with the "necessity/State necessity/continuity of State" for the purposes of attaining the proportions justifying its own scope as also the future and expected course of action leading to restoration of democracy.

(uu) Doctrine of necessity‑‑‑

‑‑‑‑ Not restricted to criminal prosecution alone.

(vv) State necessity, doctrine of‑‑‑

‑‑‑‑Conditions detailed.

(ww) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validation accorded to the action of the Armed Forces by Supreme Court‑‑‑Effect‑‑‑Held, though initially the status of the Government after taking over the affairs of Pakistan was de facto, but in view of the validation accorded by the Supreme Court, it had attained the status of a de jure Government.

(xx) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Oath of Office of (Judges) Order (1 of 2000)‑‑?Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra‑constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑?Validity‑‑‑Prolonged involvement of Army, its ill effects‑‑‑Doctrine of state necessity‑‑‑Applicability‑‑‑Conditions‑‑‑All that is required to be considered is that the extra‑constitutional action should have nexus with the facts on the ground‑‑‑Duty of superior Court is that it recognizes the evil, suggests remedial measures therefor and lays down infrastructure for a journey leading to the restoration of the democratic processes/institutions as expeditiously as possible‑‑‑If, however, those responsible for achieving said objectives fall short of the measures within the contemplation of the law during their tenures respectively, then the remedy lies in identifying the facts on the ground and taking remedial measures to suppress the evil‑‑‑Prolonged involvement of the Army in civil affairs runs a grave risk of politicizing it, which would not be in national interest and civilian rule in the country must be restored within the shortest possible time after achieving the declared objectives as reflected in the speeches of the Chief Executive dated 13th and 17th October, 1999 ‑which necessitated the military take‑over‑‑‑Action of Armed Forces of taking over the affairs of Pakistan qualified for validation on the ground of state necessity/survival in circumstances.

(yy) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Doctrine of State necessity ‑‑‑Applicability‑‑?Proclamation to the extent it impinges on the independence of Judiciary is not valid.

(zz) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Factors‑‑‑Validity‑‑‑Doctrine of state necessity‑‑?Applicability‑‑‑Whole spectrum of circumstances prevalent on or before 12th October, 1999, the day when Armed Forces took over the affairs of Pakistan, revealed that the representatives of the people, who were responsible for running the affairs of the state, were accused of corruption and corrupt practices and failed to establish good governance in the country as a result of which a large number of references had been filed against the former Prime Minister, Ministers, Parliamentarians and members of the Provincial Assemblies for their disqualification on account thereof‑‑‑Process of accountability carried out by the former. Government was shady, inasmuch as, either it was directed against the political rivals or it was not being pursued with due diligence‑‑‑All institutions of the state including Judiciary were being systematically destroyed in the pursuit of self‑serving policies‑‑‑Democratic institutions were not functioning in accordance with the Constitution, they had become privy to the one man rule and the very purpose for which they were established stood defeated by their passive conduct‑‑‑Attempts were made to politicize the army, destabilize it and create dissension within its ranks and had the former Prime Minister been successful in his designs, there would have been chaos and anarchy rather a situation of civil war where some factions of Armed Forces were fighting against others‑‑‑Action of Armed Forces of taking over the affairs of Pakistan having nexus with the facts on the ground, was qualified to be validated on the ground of State necessity/survival in circumstances.

(aaa) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Arts. 184, 46, 48, 90 & 99‑‑?Extra‑constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Reference to provision of Arts.46, 48, 90 & 99 of the Constitution was not relevant, which did not provide a solution to an extra‑constitutional situation.

(bbb) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Arts. 91 & 184(3)‑‑?Term "Chief Executive", import of‑‑‑Constitution of Pakistan (1973) envisages ‑Parliamentary form of Government where the Prime Minister acts as the Chief Executive of the country‑‑‑By means of Proclamation of Emergency dated 14‑10‑1999 as also the Provisional Constitution Order, 1999 the Constitution has been only held in abeyance and the country is to be run as nearly as may be in accordance with the Constitution, therefore, Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff while taking over the affairs of the country assumed to himself the title of "Chief Executive"‑‑‑Validity‑‑‑Since practically the Chairman, Joint Chiefs of Staff Committee and Chief of Army Staff was performing the functions of the Prime Minister, he held the position of Chief Executive in the scheme of the Constitution of Pakistan.

(ccc) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive 'of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)=‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Nature‑‑‑Coup d'etat and revolution‑‑‑ Coup d'etat and revolution are interchangeable in the context of step of taking over the affairs of Pakistan by the Armed Forces and nothing substantial would turn on considering it from one angle or another.

(ddd). Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Grant of power to Chief Executive of Pakistan to amend the Constitution‑‑‑Extent‑‑‑Power of the Chief Executive of Pakistan to amend the Constitution is strictly circumscribed by the limitations down by the Supreme Court‑‑‑Limitations with regard to amendment of the Constitution by Chief Executive of Pakistan as laid down by the Supreme Court, enumerated.

(eee) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan dated 14‑10‑1999‑‑‑Oath of Office (Judges) Order (1 of 2000), Preamble=‑?Constitution of Pakistan (1973), Arts.209 & 184(3)‑‑‑Extra‑constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Supreme Judicial Council‑‑‑Judges of the Supreme Court and High Courts cannot be removed without resorting to the procedure prescribed in Art.209 of the Constitution‑‑‑Cases of the Judges who ceased to be Judges of the Supreme Court and High Courts by virtue of Oath of .Office (Judges) Order, 2000, however, were hit by the doctrine of past and closed transaction and could not be re‑opened.

(fff) Provisional Constitution Order (1 of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Proclamation of Emergency by Chief Executive of Pakistan. dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑‑Extra?constitutional step of taking over the affairs of Pakistan by the Armed Forces of Pakistan‑‑‑Validity‑‑‑Restoration of democratic institutions‑‑‑Supreme Court, in view of the circumstances explained by the Attorney‑General. observed that there was no choice but to grant reasonable time to enable the Chief Executive to restore the democratic institutions to the rightful holders of the public representation‑, under the Constitution.

Wasim Sajjad, M. Rafique Rajwana, Advocates Supreme Court and Ejaz M. Khan, Advocate‑on‑Record for Petitioner (in .C.R.P, No.208 of 2000).

A. Rahim Kazi, Advocate Supreme Court alongwith petitioner and M.A. Zaidi, Advocate‑on‑Record for Petitioners (in C.R,P, No. 209 of 2000).

A. Haleem Pirzada, Advocate Supreme Court and IMtiaz M. Khan, Advocate‑on‑Record for Petitioners (in C.R.P. No.210 of 20pp).

S. Sharifuddin Pirzada, Senior Advocate Supreme Court assisted by Mansoor Ahmed, Deputy Attorney‑General and Mehr Khan Malik, Advocate‑on‑Record for the Federation.

Aziz A. Munshi, Attorney‑General assisted by Tanvir Bashir Ansari Deputy Attorney‑General, Sher Zaman Khan, Deputy Attorney-?General, 'Saeeduz Zafar, Deputy Attorney‑General and Mehr Khan Malik, Advocate‑on‑Record (on Court's call).

Dates of hearing: 6th and 7th of February, 2001.

P L D 2001 Supreme Court 325

Present: Muhammad Bashir Jehangiri, Deedar Hussain Shah and Javed Iqbal, JJ

HASHIM KHAN‑‑‑Appellant

versus

NATIONAL BANK OF PAKISTAN, HEAD OFFICE

AT I.I. CHUNDRIGAR ROAD, KARACHI AND

BRANCH OFFICE AT M.A. JINNAH ROAD, QUETTA ‑‑‑Respondent

Civil Appeal No.63‑Q of 1994, decided on 18th October, 2000.

(On appeal from the judgment/order, dated 13‑6‑1994 of the High Court of Balochistan, Quetta, passed in R.F.A. No. 16 of 1994).

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

‑‑‑‑O. II, R. 2‑‑‑Omission or failure to include any of the reliefs in the plaint‑‑=Effect‑‑‑Provisions of 0.11, R.2, C.P.C.‑‑‑Object‑‑‑Omission or failure to include any of the reliefs in the plaint operated as relinquishment of that claim‑‑‑Party instituting the proceedings had to include all reliefs flowing from main grievance, otherwise the omission was fatal, and as such, it was essential for the plaintiff to assert all claimable reliefs concerning the grievance of cause of action‑‑‑Any such relief which flowed out of basic grievance if not claimed or omitted, then such party stood precluded from agitating such reliefs subsequently‑‑‑Object of provisions of OJI, R.2, C.P.C. was to avoid splitting of claim and restrict multiplicity of litigation in the matter.

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

‑‑‑‑O. XXIII, R. 3‑‑‑Withdrawal of suit, without permission to file fresh suit ‑‑‑Effect‑‑•Such withdrawal debars institution of any fresh proceedings concerning such matter or part thereof.

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

‑‑‑‑O. II, R. 2 & O. XXIII, R. 3‑‑‑Constitution of Pakistan (1973), Art. 185(2)‑‑‑Filing of second suit on the same cause of action‑‑­Relinquishment of claim in earlier suit‑‑‑Earlier suit was withdrawn without any permission to file the fresh one on the same cause of action as a result of compromise effected between the parties out of Court‑‑‑Plaintiff filed another suit on the same cause of action and the same was decreed by the Trial Court but High Court dismissed the same‑‑‑Plaintiff had agreed to compromise with the defendant and had relinquished his other claim by filing statement for full and final settlement of his claim and did not reserve the right to claim compensation for filing the suit, as such his claim was not allowed by the High Court‑‑‑Validity‑‑‑Appeal of the defendant was accepted by the High Court with sound and cogent reasons and there being no error or irregularity in the judgment same was not open to exception.

Venkatadri Appa Rao v. Parthasabathi AIR 1925 PC 105; Indian Cable Co. Ltd. v. Sumitra Chakraborty AIR 1985 Cal. 248; Mitha Khan v. Muhammad Younus 1991 SCMR 2030; Abdul Hakim v. Saadullah Khan PLD. 1970 SC 63; Muhammad Tahir v. Abdul Latif 1990 SCMR 75; Nazima Begum v. Hasina Begum 1991 SCMR 177; Fayyaz Hussain v. Tahir Naseem PLD 1992 Kar. 423; Asghar Ali Sulaimanji AIR 1947 Nag. 177; Muhammad Yateem v. Ghulam Nabi PLD 1975 Lah. 563; Hoosen Brothers Ltd. v. S. Abdullah & Co. PLD 1971 Kar. 729 and Hoosain Bux v. Dur Muhammad PLD 1963 (W.P.) Kar. 969 distinguished.

Halsbury's Laws of England, Vol. 12, p.461; para.1172, Tannan's Banking Law and Practice in India; Megregar on Damages, 14th Edn.; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 and Province of the Punjab through Member, Board of Revenue, Residual Properties v. Muhammad Hussain through Legal Heirs PLD 1993 SC 147 ref.

Fazal‑e‑Ghani Khan, Senior Advocate Supreme Court for Appellant.

S.A.M. Quadri, Advocate Supreme Court/Advocate‑on‑Record for Respondent.

Dates of hearing: 16th and 18th October, 2000.

P L D 2001 Supreme Court 333

Present: Rashid Aziz Khan, Nazi in Hussain Siddiqui and Javed Iqbal, JJ

MUHAMMAD ILYAS‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.250 of 1999, decided on 12th October, 2000.

(On appeal from the judgment dated 10‑3‑1998 of the Lahore High Court, Rawalpindi Bench, passed in Criminal Miscellaneous No.594 of 1993).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 324/34‑‑‑Appraisal of evidence‑‑‑Accused had the motive for committing the crime which was mentioned in the F.I.R. and was established beyond any shadow of doubt ‑‑‑F.I.R. had been lodged promptly within 45 minutes of the occurrence at the police station which was two and a half miles away there from ‑‑‑F.I.R. contained all the necessary details which showed that the complainant had witnessed the crime‑‑‑Injured eye­witness who had no enmity with any of the assailants was an independent witness and his testimony being reliable inspired confidence‑‑‑Medical evidence had no conflict with ocular version‑‑‑Prosecution evidence did not admit of any hypothesis other than the guilt of the accused‑‑­Convictions and sentences of accused were upheld in ‑ circumstances.

Abdul Wahab alias Rehra v. The State 1999 SCMR 1668 ref.

(b) Penal. Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34‑‑‑Appreciation of evidence‑‑‑Motive‑‑‑Motive does not play any effective role when premeditated and cold‑blooded murder is committed and established by irrefutable evidence‑‑‑What is important is the nature of evidence and not the motive which may or may not be proved‑‑‑Non‑proof of motive cannot be a ground to discard the unimpeachable evidence:

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss: 302/34‑‑‑Appreciation of evidence‑‑‑Credibility of a witness‑‑‑Test of. credibility of a witness is neither his relationship or friendship with either side, nor his mere presence at the scene of offence at the time of occurrence, but it is the worth of his testimony valued ‑on the established judicial norms which finally proves or disproves his partiality or impartiality as a witness.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34‑‑‑Appreciation of evidence‑‑‑Corroboration‑‑‑Comprehensive definition of the `term "corroboration" covering all its facets is not possible‑‑­Corroboration can be gathered by any thing from the events, which can satisfy a prudent. mind in given circumstances.

(e)Words and phrases‑‑‑

‑‑‑‑ Word "Corroboration" is a many faceted term which cannot be comprehensively defined‑‑‑Corroboration in a criminal case can be gathered by anything from the events which can satisfy a prudent man in given circumstances.

Sardar Muhammad Ishaq Khan. Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Raja Ibrahim Satti, Advocate .Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing: 12th October, 2000.

P L D 2001 Supreme Court 340

Present: Iftikhar Muhammad Chaudhry

and Rana Bhagwan Das, JJ

ANOUD POWER GENERATION LIMITED

and others--- Petitioners

versus

FEDERATION OF PAKISTAN

and others---Respondents

Civil Petitions Nos. 1485, 1487, 1488, 1490, 1492, 1504, 1526, 1591 to 1599, 1600 to 1605 of 2000, decided on 16th November, 2000.

(On appeal from the judgment dated 31-7-2000 passed by Lahore High Court, Rawalpindi Bench in Writ Petitions Nos.506 of 1997, 510 of 1997, 94 of 1997, 1223 of 1996, 2305 of 1997, 505 of 1997, 511 of 1997, 509 of 1997, 946 of 1997, 982 of 1995, 983 of 1995, 1008 of 1995, 1731 of 1996, 1197 of 1995 and 1725 of 1995).

(a) Notification--

Retrospective effect of---Scope---Notification cannot operate retrospectively and benefits and advantages if already accrued in favour of a party during subsistence of the notification are available to the party until the same is amended or rescinded---Where the notification has been used for the benefit of the subject then the same can be made operative retrospectively but if its operation is to the disadvantage of party who is the subject of the notification then the same would operate prospectively.

Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan 1992 SCMR 1652; Taj Mahal Hotel Limited v. Karachi Water and Sewerage Board 1997 SCMR 503; Hashwani Hotel Limited v. Federation of Pakistan and others PLP 1997 SC 315; Messrs Elahi Cotton Mills Limited and others v. Federation of Pakistan through Secretary, M/O Finance, Islamabad and 6 others PLD 1997 SC 582 and Federation of Pakistan v. Shaukat Ali Mian and others PLD 1999 SC 1026 ref.

(b) Constitution of Pakistan (1973)---

----Art. 25---Discrimination---Element of discrimination in a fiscal statute--­Effect---Element of discrimination in a fiscal statute cannot be pleaded nor such statute can be struck down on the touchstone of Art.25 of the Constitution---Different laws can be promulgated to deal with various types of persons, however, subject to reasonable classification.

I.A. Sherwani and others v. Government of Pakistan 1991 SCMR 1041; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon arid 16 others PLD 1993 SC 341 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

(c) Notification--

----Fiscal notification---Jurisdiction of Government---Government/Competent Authority can issue, rescind or amend any notification or legislation which may be less favourable to a party who has not availed the benefits arising out of the earlier notification or legislation for the purpose of generating funds to run the functionaries of Government etc.

Federation of Hotel and Restaurant v. Union of India AIR 1990 SC 1637; Commissioner of Agricultural Income-tax, East Bengal v: V. W. M. Abdur Rehman 1993 SCMR 445; Cap. Brandy Syndicate v. Inland Revenue Commissioner (1921) 1 KB 64; P.K. Kutty Haji and others v. Union of India and others (1989) 176 ITR 481 and Interpretation of Statutes by N.S. Bindra, 7th Edn., p.771 ref.

(d) Customs Act (IV of 1969)---

----S. 19---Sales Tax Act (VII of 1990), S.13(1)---Notifications Nos.SRO 279(1)/94 dated 2 4-1994 and SRO 584(1)/95 dated 1-7-1995---Constitution of Pakistan (1973), Arts.25 & 185(3)---Sales tax and customs duty, exemption of---Discrimination---Government vide Notification No.SRO 279(1)/94, dated 2-4-1994, exempted certain machinery and equipment from payment of sales tax and customs duty---Another Notification No.SRO 584(1)/95 dated 1-7-1995, was subsequently issued by the Authorities whereby the exemption was withdrawn---High Court in exercise of Constitutional jurisdiction found that the importers who had opened Letters of Credits after issuance of amended Notification No.SRO 584(1)/95, dated 1-7-1995, and submitted Bills of Entry, were not entitled for the benefit of original Notification No.SRO 279(1)/94, dated 2-4-1994, as the importers were not placed in similar circumstances qua the importers Who had fulfilled the conditions laid down in the unamended Notification and had filed Letters of Credits and Bills of Entry prior to its amendment---Contention of the importers was that they had been discriminated and the Authorities had no jurisdiction to withdraw or rescind the exemptions already granted---Validity---Powers of Competent Authority could not be curtailed and Notification once issued could not be allowed to remain intact for all times to come notwithstanding the fact that the circumstances had changed and it was not possible for he Government to extend the benefit of exemption of duty to the importers who had not yet decided to install projects or intending to do so in new circumstances prevailing after the date of issuance of amended Notification---Classification in both sets of companies was reasonable.

Collector Customs, Excise and Sales Tax, Peshawar and 3 others v. Messrs Flying Kraft Paper Mills (Pvt.), Charsadda, District Peshawar 1998 SCMR 1041 and AIR 1991 SC 1721 ref.

(e) Supreme Court Rules, 1980--

----O. XIII, R. 3(ii)---Limitation Act (IX of 1908), S.5---Petition for leave to appeal---Delay, condonation of---Prerequisites---Failure to file certified copies alongwith the petition---Effect---Petition must be accompanied by the judgment, decree, final order sought to be appealed from, one copy of the same has to be certified as correct, together with grounds of appeal or application before the High Court---Where no certified copies had been provided alongwith the petition, the same had not been filed according to the Rules and time could not be arrested unless duly certified copy was placed on record---Delay was not condoned in circumstances.

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

----S. 5---Delay, condonation of---Government functionaries---Government functionaries are not entitled for any preferential treatment so far as question of limitation for institution of proceedings is concerned and are treated at par with the other litigants.

Government of Punjab through Secretary, Finance Department Lahore v. Mabarak Ali acid others PLD 1993 SC 375 ref.

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

----O. I, R.10---Misjoinder or non-joinder of patties---Termination of proceedings---Validity---No legal proceedings can be terminated for mis­joinder or non-joinder of parties.

(h) Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), S.20---Constitutional petition---Maintainability---Jurisdiction of High Court---Scope---Jurisdiction under S.20, C.P.C. depended upon nature of relief which had been claimed ---Vires of a Notification issued by Federal Government having its offices at Islamabad was challenged before the High Court having its territorial jurisdiction at place Islamabad---High Court had jurisdiction to adjudicate upon the matter---Petition was maintainable in circumstances.

The Collector of Customs and Central Excise, Peshawar and others v. Messrs Rais Khan Limited through Muhammad Hashim 1996 SCMR 83; Sandalbar Enterprises (Pvt.) Limited v. Central Board of Revenue and others PLD 1997 SC 334 and Flying Kraft Paper Mills (Pvt.) Ltd., Charsaddda v. Central Board of Revenue, Islamabad and 2 others 1997 SCMR 1874 ref.

Raja Muhammad Akram, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners (in C.Ps. Nos.1485, 1487, 1490, 1492 and 1504 of 2000).

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C. Ps. Nos.1526, 1591 to 1605 of 2000).

Nemo for Respondents (in all Cases).

Date of hearing: 16th November, 2000

P L D 2001 Supreme Court 355

Present: Abdur Rehman Khan, Nazim Hussain Siddiqui

and Tanvir Ahmed Khan, JJ

Mst. KHADIJA BEGUM and 2 others‑‑‑Appellants

versus

Mst. YASMEEN and 4, others‑‑‑Respondents

Civil Appeal No. 824 of 2000, decided on 1st December, 2000.

(On appeal from the judgment dated 27‑3‑2000 of the Lahore High Court, Multan Bench, passed in R.F.A. No.95 of 1997).

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

‑‑‑‑S. 107(2), O.VIl, R.10 & O.XLl, R.I‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider whether in the absence of specific provision in C.P.C. for directing the return of appeal for want of pecuniary jurisdiction in the Lower Appellate Court, the provisions of S.107(2) read with O.VII, R.10, C.P.C. were applicable as was held in earlier decisions of High Court and Supreme Court; that whether in the event of applicability of provisions of O.VII, R.10, C.P.C. to return of appeal, party receiving return of the plaint was obliged to refile the same memorandum of appeal before the proper Court of competent jurisdiction; that whether after the return of memorandum of appeal by the First Appellate Court, institution of amended memorandum of appeal alongwith the returned memorandum of appeal suffered from irregularity in law affecting the merits of the case or was a curable irregularity under S.99, C.P.C.; that whether decree‑sheet carrying the valuation of Rs.25,000 could bona fide be taken to the Court of appeal because the appeal from decree itself and not the judgment with reference to S.96 read with O.XLI, R.1, C.P.C. was competent.

Narayan v. Tukaram AIR 1923 Nag.310; Moomal Dharamada and another v. Lal Singh AIR 1939 Sindh 221; Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others PLD 1981 Kar. 277; Mst. Hawabai and 6 others v. Abdul Shakoor and 8 others PLD 1970 Kar. 367; Abdul Shakoor and others v. Mst. Hawabai and others 1982 SCMR 867 and Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 ref.

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

‑‑‑‑S. 107(2)‑‑‑Appellate Court, jurisdiction of‑‑‑Appellate Court by virtue of S.107(2), C.P.C. has the same powers, which are conferred upon the Courts of original jurisdiction.

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

‑‑‑‑S. 96 & O.XLI, R.1‑‑‑Appeal‑‑‑Filing or returned memorandum of appeal‑‑‑validity‑‑‑Appeal filed before Lower Appellate Court was returned to appellant to be filed before High Court‑‑‑Appellant filed memorandum of appeal in High Court, along with the returned memorndum of appeal‑‑‑High Court insisted that the appellant was to file the old memorandum of appeal‑‑­Such finding of High Court was not proper being against the law.

Abdul Shakoor and others v. Mst. Hawabai and others 1982 SCMR 867 rel.

(d) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 5 & 14‑‑‑Condonation of delay‑‑‑Pursuing appeal in wrong forum‑‑­Effect‑‑‑Where delay appears to be condonable, the provisions of Ss.5 & 14 of Limitation Act, 1908, come into play‑‑‑Time consumed in pursuing appeal in wrong forum cannot be condoned under S. 5 of Limitation Act, 1908.

Raja Karamatullah and 3 others v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892 rel.

(e) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑"Sufficient cause"‑‑‑Meaning‑‑‑Expression "sufficient cause" means circumstances beyond control of party concerned.

Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 and Syed Haji Abdul Wahid v. Syed Sirajuddin 1998 SCMR 2296 ref.

(f) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 14‑‑‑"Good faith"‑‑‑Connotation‑‑‑Thing not done with due care and attention, is deemed to be not done in good faith.

Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102 and Syed Haji Abdul Wahid v. Syed Sirajuddin 1998 SCMR 2296 ref.

(g) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Condonation of delay‑‑‑Wrong advice of counsel‑‑‑Effect‑‑‑Any action taken on advice by the counsel against a clear provision of law would not entitle the party to seek condonation of delay on the ground that the party acted bona fide on such advice.

Syed Haji Abdul Wahid v. Syed Sirajuddin 1998 SCMR 2296 ref.

(h) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 5 & 14‑‑‑Condonation of delay‑‑‑Proceedings before wrong forum‑‑­Counsel and client, relationship of‑‑‑Advice of counsel against clear provisions of law‑‑‑Appeal before the Lower Appellate Court was returned to appellants to be filed before High Court and the same was dismissed by High Court as being time‑barred‑‑‑Validity‑‑‑Appellants were adamant before the Lower Appellate Court that they had properly filed the appeal‑‑‑Plea asserted by the appellants was not "sufficient cause" for delay, as the sole object of the appellants was to prolong the proceedings to deprive the respondents of their due shares‑‑‑Deliberate assertion of a plea, which to the knowledge of the party was illegal/improper, could not be treated as "sufficient cause" for condonation of delay‑‑‑Appeal was rightly dismissed by High Court in circumstances.

Moolomal Dharamdas and another v. Lai Singh AIR 1939 Sindh 221; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Sardaraz Khan and 36 others v. Amirullah Khan and 34 others PLD 1995 Pesh. 86; Syed Haji Abdul Wahid v. Syed Sirajuddin 1998 SCMR 2296 and Raja Karamatullah and 3 others v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892 rel.

Gulzarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellants.

Muhammad Ibrahim Satti, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondents.

Date of hearing: 1st December, 2000.

P L D 2001 Supreme Court 365

Present: Munir A. Sheikh and Javed Iqbal, JJ

Dr. GHULAM MURTAZA CHEEMA and others‑‑‑Appellants

versus

GOVERNMENT OF PUNJAB and others‑‑‑Respondents

Civil Appeals Nos. 19, 20 and 425 of 1999, decided on 7th December, 2000. ..

(On appeal from the judgments dated 15‑9‑1998 and 28‑7‑1998 of the Lahore High Court passed in W.Ps. Nos.465, 295 and 4658 of 1999).

(a) Civil service‑‑‑

‑‑‑‑Appointment‑‑‑Merit list‑‑‑Appointment of Associate Professor‑‑­Provincial Public Service Commission invited applications for the post and the required qualification was five years' teaching experience in the field‑‑­Appellant was placed at number one of the merit list among the three contestants‑‑‑Objection raised to the experience of the appellant was that he remained on ex‑Pakistan leave for 280 days and that period should be excluded from his experience‑‑‑Validity‑‑‑Period falling in summer vacations, weekly holidays and other public holidays could not be excluded from the teaching experience of teaching staff, even though the activities in the Colleges remained closed during such vacations and holidays, therefore, the said period could not be excluded from the period of his teaching experience‑‑‑Where period of long summer vacations was to be included in the period of teaching, there is no ground to exclude the period of ex­-Pakistan leave during which the appellant had been teaching abroad‑‑­Appellant had acquired the requisite experience required under the advertisement and the selection by the Public Service Commission allocating him the first position on merit could not have been objected to on any ground.

(b) Expunction of remarks‑

‑‑‑‑ Matter related to appointment of a teacher in a Medical College‑‑­Question as to teaching experience of the candidate for said appointment‑‑­High Court while disposing of Constitutional petition made certain remarks against the Government‑‑‑Contention of the Government was that the remarks were uncalled for and before making the same, Government was not afforded any opportunity of hearing‑‑‑Validity‑.‑Held, in order to decide question directly involving the case as to teaching experience, it was not necessary to go into deeper analysis‑‑‑Remarks made by the High Court in its judgment were expunged by Supreme Court.

Hafiz S.A. Rehman, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Appellant (in C. A. No. 19 of 1999)

M. Zaman Bhatti, Advocate Supreme Court for Respondents Nos. l and 2 (in C. A. No. 19 of 1999).

Proforma Respondents Nos. 3 and 4 (in C. A. No. 19 of 1999).

Raja A. Ghafoor, Advocate Supreme Court/Advocate‑on‑Record for Respondents No. 5 (in C.A. No. 19 of 1999).

Abaidur Rehman Lodhi, Advocate Supreme Court for Respondent No. 6 (in C. A. No. 19 of 1999).

Dilawar Mahmood, Advocate Supreme Court for Respondent No.7 (in C. A. No. 19 of 1999).

M. Zaman Bhatti, Advocate Supreme Court, Ejaz Farrukh Laisia, Officer Health Department, Government of Punjab for Appellants (in C.A. No.20 of 1999).

Respondent No.1 in person (in C. A. No .20 of 1999).

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate‑on‑Record for Respondent No‑5 (in C.A. No.20 of 1999).

Abaidur Rehman Lodhi; Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellant (in C.A. No.425 of 1999).

M. Zaman Bhatti, Advocate Supreme Court for Respondents Nos. l and 2 (in C.A. No.425 of 1999).

Respondent No.3: Ex parte (in C.A. No.425 of 1999).

S.A. Rehman, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record (in C.A. No.425 of 1999).

Respondent No.5: Ex parte (in C.A. No‑425 of 1999).

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate‑on‑Record for Respondent No.6 (in C.A. No.425 of 1999).

Date of hearing: 6th December, 2000.

P L D 2001 Supreme Court 372

Present: Muhammad Bashir Jehangin

and Rana Bhagwan Das, JJ

Mian MUHAMMAD IQBAL‑‑‑Appellant

versus

Mst. SAEEDA SALAH‑UD‑DIN‑‑‑Respondent

Civil Appeal No. 1195 of 1997, decided on 6th December, 2000.

(On appeal from the judgment dated 21st July,. 1997, of the Lahore High Court, Lahore, in S.A.O. No.85 of 1997).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of '1959)‑‑‑

‑‑‑‑S. 13(6)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Ejectment of tenant ‑Defence, striking off‑‑‑Absence of counsel of tenant‑‑‑Leave to appeal was granted to consider, whether in the circumstances of the case, the absence of the counsel for the appellant on the ground of his illness duly supported by the medical certificate issued by his physician and his personal affidavit had been rightly brushed aside by Rent Controller in his .order. without considering the request of the counsel for adjournment and had unjustifiably struck off the tenant's defence without providing him an opportunity to file written statement within Court hours on that day and that the order had not been justifiably upheld ,by the Lower Appellate Court as well as the High Court.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Ejectment of tenant‑‑‑Defence, striking off‑‑‑Absence of counsel of tenant‑‑‑Seeking of adjournment on the basis of medical certificate‑‑­Delaying tactics‑‑‑Rent Controller, due to absence of counsel of the tenant struck off the defence. and allowed the ejectment petition‑‑‑Appeals before Lower Appellate Court as well as High Court were dismissed and the order of Rent Controller was upheld‑‑‑Validity‑‑;Counsel was engaged, he had sought adjournment on the ground of his illness duly supported by not only the medical certificate issued by a competent doctor but also the personal affidavit of the counsel‑‑‑Supreme Court having noticed the deteriorating unethical professional practices particularly .by the medical profession wherein certificates of the nature produced by the counsel in support of his plea had become saleable commodity held nonetheless there .could be few honourable exception on that score and in the present case it was an exception to the unethical conduct and malpractices that had crept in the various professions‑‑‑Plea raised by the tenant was accepted by Supreme Court and orders passed by the Courts below were set aside and the case was remanded to the Rent Controller for decision afresh.

Shaft Muhammad v. Muzaffar‑ud‑Din and others 1990 SCMR 530 ref.

Muhammad Shahzad Shaukat, Advocate Supreme Court for Appellant.

Ch. Arshad Mahmood, Advocate Supreme Court for Respondent.

Date of hearing: 6th December, 2000. .

P L D 2001 Supreme Court 375

Present: Muhammad Bashir Jehangiri

and Deedar Hussain Shah, JJ

GOVERNMENT OF N.‑W.F.P. through

District Collector, Mardan and 3 others‑‑‑Appellants

versus

Haji MUHAMMAD YAQOOB and another‑‑‑Respondents

Civil Appeal No. 1848 of 1997, decided on 2nd January, 2001.

(On appeal from the judgment dated 12‑6‑1997 of the Peshawar High Court, Peshawar passed in R.F.A. No.32 of 1995).

Land ‑Acquisition Act (I of 1894)‑‑

‑Ss. 4, 6. 18 & 54‑‑‑Acquisition of land‑‑‑Award of compensation‑‑­Fixing of price of the .land‑‑‑Appellants being dissatisfied with the award filed objections‑‑‑District Judge on the basis of evidence enhanced the compensation‑‑‑Order of the District Judge was upheld by High Court‑‑­Validity‑‑‑Courts below relied on the compensation fixed by the Authorities with regard to another piece of land in the same village a few months ago‑‑­No legitimate exception could be taken to the order of the High Court‑‑­Compensation, held, was rightly fixed by the Courts below.

Land Acquisition Collector/Deputy Commissioner, Abbottabad and others v. Sardar `Muhammad Safdar Khan and others 1998 SCMR 2142 ref.

Saadat Hussain, Advocate Supreme Court and Noor Ahmad Khan, Advocate‑on‑Record for Appellants. .

Nemo for Respondents.

Date of hearing: 2nd January, 2001.

P L D 2001 Supreme Court 378

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

MUHAMMAD YAQOOB, SUB‑INSPECTOR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No.43‑Q of 2000, decided on 22nd December, 2000.

(On appeal from the order/judgment dated 17‑11=2000 of the High Court of Balochistan, Quetta, passed in Cr.R. No.93 of 2000).

(a) Negligence ‑‑‑

‑‑‑‑Degrees‑‑‑Negligence is a term of art having multiple dimensions in different jurisdictions‑‑‑Negligence can be defined as the omission to do an act which a reasonable man guided upon those considerations which ordinarily, regulate the conduct of human affairs, would do, or doing an act which a reasonable and prudent man would not do‑‑‑Negligence is the absence of such care, skill and diligence as it was the duty of the person to bring to the performance of the work which he is said not to have performed‑‑‑Negligence is of three degrees: (i) Ordinary, which is the want of ordinary diligence; (ii) slight: the want of great diligence and (iii) gross: the want of even slight diligence.

Kedarnath v. State AIR 1965 All. 233; Nemichand v. Commissioner, Nagpur Division, Nagpur ILR 1947 Nag. 256; 228 IC 525 and 1947 NU 281 ref.

(b) Negligence‑‑‑

‑‑‑‑Proof‑‑‑Negligence may be proved on the basis of presumption or surrounding circumstances while taking disciplinary action, but in criminal proceedings definite and concrete evidence would be required to prove the factum of negligence.

(c) Penal Code. (XLV of 1860)‑‑‑

‑‑‑‑S. 223‑‑‑Negligence‑‑‑Meaning and import‑‑‑Negligence when a part of the definition of the penal section implies that the act constituting the offence must have been done by the accused himself and if it was accomplished by some one else, the accused cannot be held responsible for it.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 34‑‑‑Common intention‑‑‑Acts done by several persons in furtherance of common intention‑‑‑Section 34, P.P.C. deals with the acts done by several persons in furtherance of common intention‑‑‑Section 34, P.P.C. is neither a punitive section nor does it enact a rule of evidence but mainly relates to the concept of joint liability.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 34‑‑‑Common intention‑‑‑Common intention presupposes prior concert and requires a pre‑arranged plan, because before an accused can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all‑‑‑Inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case‑‑‑All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily led to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis.

(1955) SCR 1083 and (1955) Cr. LJ 572 ref.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 34‑‑‑Intent and import of S.34, P.P.C.‑‑‑Section 34, P.P.C. is intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in furtherance of common intention of all or to prove exactly what part was played by each of them‑‑­Principle which S.34, P.P.C. embodies is participation in some action with the common intention of committing a crime‑‑‑Once such participation is established S.34, P.P.C. is at once attracted.

PLD 1969 SC 158; AIR 1960 SC 889 and AIR 1956 All. 341 ref.

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

‑‑‑‑Ss. 223 & 34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑No evidence was available on record to suggest that the alleged offence had been committed in furtherance of common intention or pursuant to prior concert of mind or pre‑arranged plan‑‑‑Record did not show that the physical custody of the prisoner was handed over to the accused and at what particular point he managed to escape, that who was responsible at that particular juncture for the said escape: that in whose custody the prisoner was at that particular moment, that what was the nature of the duty of each member of the Guard including the accused and other police officials in whose charge the lock‑up was, that as to who was responsible to take the prisoners to Court and their safe return and whether the escaping prisoner was physically produced before any Court and if so by whom‑‑‑Prosecution had failed to establish on record all the aforesaid points relating to the accusation‑‑‑Concrete evidence was also required to prove the factum of negligence on the part of accused which was lacking in the case‑‑‑Petition for leave to appeal was converted into appeal in circumstances and the accused was acquitted on benefit of doubt.

Kedarnath'‑ v. State AIR 1965 All. 233; Nemichand v. Commissioner, Nagpur Division, Nagpur ILR 1947 Nag. 256; 228 IC 525; 1947 NU 281; (1955) SCR 1083; (19551 Cr.LJ 572; P1,969 SC 158; AIR 1960 SC 889 and AIR 1956 All. 341 ref.

(h) Words and phrases‑‑

‑‑‑‑"Negligence"‑‑‑Meaning.

Muhammad Aslam Chishti, Senior Advocate Supreme Court (with permission and without Advocate‑on‑Record) for Petitioner.

Mrs. Ashraf Abbas, Advocate‑on‑Record for the State.

Date of hearing: 22nd December, 2000.

P L D 2001 Supreme Court 384

Present: Muhammad Bashir Jehangiri

and Rana Bhagwan Das, JJ

DILDAR ‑‑‑ Appellant

versus

THE STATE through Pakistan Narcotics

Control Board, Quetta ‑‑‑Respondent

Criminal Appeal No.269 of 1996, decided on 9th January, 2001.

(On appeal from judgment of High Court of Balochistan, Quetta, dated 22‑8‑1996, passed in Criminal Appeal No.75 of 1995).

(a) Criminal Procedure Code (V of 1898)‑‑‑.

‑‑‑‑S. 540‑‑‑Power to summon or examine any person as witness‑‑‑Trial Court, jurisdiction of‑‑‑Scope‑‑‑Where evidence of any person appears to be essential to the just decision of the case, Trial Court is empowered to summon any person as a witness , or examine any person in attendance though not summoned as witness or re‑call and re‑examine any ‑such person accordingly.

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

‑‑‑‑S. 428‑‑Additional evidence‑‑‑Appellate Court, jurisdiction of ‑‑‑Pre‑conditions for additional evidence‑‑‑Filling up lacuna in prosecution case‑‑­Scope‑‑‑Where the Appellate Court considers additional evidence to be necessary, after recording its reasons, the Appellate Court may take such evidence itself or direct the same to be taken by Trial Court‑‑‑Such powers and the provisions are not to be utilized at the appellate stage to cure the inherent infirmities. or fill up a lacuna in the prosecution case‑‑‑Appellate Court can exercise such powers only where the additional evidence was either not available at the trial or the party concerned was prevented from producing it either by circumstances beyond its control or by reason of misunderstanding or mistake.

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

‑‑‑‑Ss. 428 & 540‑‑‑Additional evidence‑‑‑Exercise of power under S.428 or S.540 Cr.P.C.‑‑‑Nature of such power‑‑‑Scope‑‑‑Widest possible powers have been conferred on a Court for summoning a witness or re‑calling and re‑examining a witness already examined under S.428 or 540, Cr.P.C.‑‑­Apparently the discretion vested in a Court appears to be unrestricted nevertheless such power being in the nature of the public trust can only be exercised if such evidence appears to be essential to the just decision of the case and not merely to fill in the lacuna in a case owing to gross negligence, inefficiency, carelessness and recklessness of a party.

(d) Criminal Procedure Code (V of 1898)‑‑‑ .

‑‑‑‑S. 428‑‑‑Additional evidence, recording of‑‑‑Jurisdiction of Appellate Court‑‑‑Photo copies of certain documents were produced in evidence by prosecution‑‑‑Prosecution, at appellate stage, sought the .permission to produce the original documents of which the photo copies were produced‑‑‑High Court allowed production of the documents during appeal‑‑­Validity‑‑‑Where some evidence was discovered subsequently and the same could not be collected earlier despite, due diligence earlier, or where a party was prevented from adducing such evidence at the trial for extraordinary reasons beyond its control and power, only then the additional evidence was allowed to be produced‑‑‑Photo copies of documents having been placed on record, non‑production of such documents in evidence and its admissibility or otherwise amounted to negligence and carelessness on the part of prosecution‑‑‑High Court had wrongly allowed production of additional evidence, in circumstances.

Ali v. Crown PLD 1952 FC 71; Ghulam Muhammad v. State PLD 1957 Lah. 263; Muhammad Ismail v. State PLD 1970 Kar. 261; Muhammad Ehsan v. State PLD 1975 Lah. 1431; Gullan v. State PLD 1977 Lah. 1103 and Barkat Ali v. Crown 1969 SCMR 448 ref_

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

‑‑‑‑S. 540‑‑‑Additional evidence‑‑‑Power of Trial Court under S.540, Cr.P.C.‑‑‑Scope‑‑‑Power under S.540, Cr.P.C. is divided in two parts: The first is discretionary in nature whereas the second is mandatory; according to the first part it is discretionary with the Court to summon any person as witness suo motu or on an application, whereas according to the second part the powers to summon, examine, re‑call or re‑examine any person as a witness are to be exercised with care and great caution.

(f) Criminal Procedure Code (V of 1898)‑‑‑.

‑‑‑‑Ss. 428 & 540‑‑‑Additional evidence‑‑‑Refusal to allow production of additional evidence‑‑‑Powers under Ss.428 & 540, Cr.P.C.‑‑‑Exercise of‑‑­Strong and convincing evidence is must to be available on record for deriving an inference that examination of a particular person by way of additional evidence at appellate stage is essential to the just decision of the case‑‑‑Where it cannot be reasonably shown that such evidence will assist the Court in arriving at a correct conclusion, resort to S.540, Cr.P.C. or for that matter to S.428, Cr.P.C. must be declined because exercise of discretion under law cannot be permitted in order to cure the blunders and serious lapses committed by a party.

(g) Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑

‑‑‑‑Arts. 3 & 4‑‑‑Criminal Procedure Code (V of 1898), Ss.428 & 540‑‑­Additional evidence, recording of‑‑‑Reinvestigation of case‑‑‑Accused was charged of drug trafficking and was convicted by the Trial Court‑‑­Prosecution at the time of hearing of appeal before High Court filed application under S.540, Cr.P.C. for production of additional evidence against the accused‑‑‑High Court allowed the application and directed Trial Court to remand the case to investigating agency for collection of additional evidence‑‑‑Validity‑‑‑Supreme Court, while commending the anxiety on the part of High Court to bring to book a hardened criminal or a drug trafficker, held that legal provisions safeguarding the rights and interest of accused must be borne in mind in order .to ensure that justice was not only dispensed with but also seemed to have been done‑‑‑Course adopted by High Court in the present case could not be supported by any principle of law‑‑‑Judgment and conviction of the accused was set aside for lack of any incriminating evidence connecting him with the commission of the crime.

Riaz Hussain v. State 1986 SCMR 1934 and Painda Gul v. State 1987 SCMR 886 ref.

Basharatullah, Senior Advocate Supreme Court and S. A. M. Quadri, Advocate‑on‑Record for Appellant‑.

Raja Abdul Ghafoor, Advocate Supreme Court for Respondent.

Date of hearing: 9th January, 2001.

P L D 2001 Supreme Court 393

Present: Muhammad Bashir Jehangiri

and Deedar Hussain. Shah, JJ

Mian MUHAMMAD YQUSAF and another‑‑‑Appellants

versus

LAHORE DEVELOPMENT AUTHORITY through

Director‑General, L.D.A. Plaza, Lahore and 5 others‑‑‑Respondents.

Civil Appeal No.675 of 1999, decided on 29th November, 2000.

(On appeal from the judgment dated 2‑10‑1997 of the Lahore High Court, Lahore passed in Writ Petition No. 11286 of 1996).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Ejectment of tenant otherwise than . in accordance with law‑‑‑Validity‑‑‑Leave to appeal was granted to consider, whether the order of High Court and the facts and circumstances of the case required further probes as to the nature of the possession of the petitioners and the exemption of the plots by the Lahore Development Authority on which the petrol pump was situated and further as to whether in the circumstances of the case when the ejectment petition had been dismissed action could have been taken to seek ejectment of the petitioners otherwise than in accordance with law.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Alternate remedy, availability of‑‑­Filing of Constitutional petition during pendency of civil suit ‑‑‑Effect‑‑­Where suits and appeal were pending decision between the parties before the Civil Court, bypassing the remedy provided under the plenary jurisdiction of the Civil Courts would not be justified‑‑‑Supreme Court deprecated pressing into service the Constitutional jurisdiction of High Court‑‑‑Constitutional petition could be tiled if an aggrieved person had no remedy under the statute against the order passed by the Tribunal‑‑‑Parties, in the present case, were locked in civil litigation in three suits and one appeal and, therefore, invocation of the Constitutional jurisdiction was act which could not be justified.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court instructed by M.S. Khattak, Advocate‑on‑Record for Appellants.

M. Rashid Ahmad, Advocate Supreme Court for Respondent‑LDA. Gul Zarin Kiani and Mahfuz‑ul‑Haq, Advocates Supreme Court and Kh. Mushtaq Ahmad, Advocate‑on‑Record for Respondents Nos. 3 to 5

Muhammad Saleem Shahnaazi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No.7.

Date of hearing: 29th November, 2000.

P L D 2001 Supreme Court 398

Present: Rashid Aziz Khan and Hamid Ali Mirza, JJ.

ARIF MASIH and another‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.311 of 2000, decided on 18th January‑, 2001.

(On appeal from the judgment dated 2‑7‑1998 of the Lahore High Court, Lahore passed in Criminal Appeal No.607/95 and Criminal Revision No.349/95).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34‑‑‑Appraisal of evidence‑‑‑Incident had taken place in day time in the house of the complainant when all the family members of the house including `ihe wife of the deceased were present‑‑‑Complainant had given the description as to features of the accused in the F.I.R., which he had reiterated in the Court‑‑‑Witnesses had identified the accused in the identification parade assigning the respective roles played by them at the time of occurrence which was corroborated by the Magistrate who had conducted the identification proceedings‑‑‑Prosecution witnesses had no animus to falsely implicate the accused in the case‑‑‑Ocular testimony was confidence­ inspiring and creditworthy‑‑‑No exception could be taken to the finding of guilt arrived at by the Courts below against the accused‑‑‑Conviction and sentence of accused were upheld in circumstances.

Bharat Singh v. State of U.P. AIR 1972 SC 2478 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑

‑‑‑‑Art. 22‑‑‑Identification parade‑‑‑Delay, in holding of‑‑‑More' long interval in holding identification test/parade or identification of accused would not by itself be sufficient to discard the testimony when the testimony as regards identification itself was also not challenged by the accused in cross‑examination.

Bharat Singh v. State of U.P. AIR 1972 SC 2478 ref.

Muhammad Munir Paracha, Advocate Supreme Court (on Court's call) for Appellants.

Ch. Arshad Ali, Advocate Supreme Court for. the State.

Date of hearing: 18th January, 2001.

P L D 2001 Supreme Court 401

Present: Muhammad Bashir Jehangiri and Javed Iqbal, JJ

FAZAL HUSSAIN ‑‑‑Petitioner

versus

ADDITIONAL SETTLEMENT COMMISSIONER, (LANDS)

and 5 others‑‑‑Respondents

Civil Petition for Leave to Appeal No.1018 of 1999, decided on 13th November, 2000. ' .

(On appeal from the order of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 3‑5‑1999, passed in L.P.A. No.91 of 1970 in W.P. No.346 of 1970).

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 52‑‑‑Jamabandi‑‑‑Whether exclusive proof of ownership ‑‑‑Jamabandi cannot be considered as exclusive proof of ownership‑‑-Presumption of truth is attached to Jamabandi which is always subject to rebuttal.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Allotment of evacuee property‑‑‑Retention of disputed property on permanent basis‑‑­Petitioners claimed to be in possession of the disputed property but the same was allotted to mother of the respondent‑‑‑Petitioners filed application under Ss.10 & 11 of Displaced Persons (Land Settlement) Act, 1958 which was dismissed by the Settlement Authorities and the order of the Authorities was upheld by the High Court‑‑‑Validity‑‑‑Where according to Settlement Authorities land was never allotted in favour of the petitioner, the question of its retention on permanent basis did not arise‑‑‑Forums below, had not committed any material irregularity or illegality in exercise of jurisdiction vested in them under the law and no evidence had been kept out of consideration, misread or misconstrued duly adduced by the parties‑‑‑Leave to appeal was refused.

(c) Constitution of Pakistan (1973)‑‑---

‑‑‑‑Art. 185(3)‑‑‑Petition for leave to appeal‑‑‑Additional evidence‑‑­Contention by the petitioner was that various documents which could not be obtained earlier might be considered by Supreme Court for the reason that the same were never produced before the forums below‑‑‑Validity‑‑‑Supreme Court declined to consider the same.

Shaukat Hussain Rizvi v. Yar Muhammad Khan PLD 1964 (W.P.) Lah. 469 distinguished.

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Muhammad Munir Peracha, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent No.2.

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Respondents Nos.3 to 6.

Date of hearing: 13th November, 2000.

P L D 2001 Supreme Court 405

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif

and Qazi Muhammad Farooq, JJ

DEPUTY COMMISSIONER/LAND ACQUISITION

COLLECTOR and others‑‑‑Appellants

versus

Sardar MUHAMMAD SHAFQAT

and others‑‑‑Respondents

Civil Appeals Nos. 1449 to 1460 of 1999, decided on 23rd January, 2001.

(On appeal from the judgment and order dated 3‑2‑1999 and 4‑2‑1999 passed by the Peshawar High Court in R.F.As. Nos. 56, 64, 77 and 81 of 1992 and Nos.24, 25, 26, 32, 43, 51, 78 and 90 of 1992).

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 4, 11 & 23‑‑‑Acquisition of land‑‑‑Irrigated/Chahi/Aabi land‑‑­Payment of compensation‑‑‑Determination of market value ‑‑‑Factors‑‑­Attending potentialities of the acquired parcel(s) of land‑‑‑Landowners whose irrigated lands had been acquired were entitled to the receipt of amount of compensation at the rate specified for Chahi lands sold in that very area‑‑­Decision of a question of fact i.e. locale of particular Khasra numbers in the near vicinity of those parcels of land which were admittedly irrigated could not but be considered sufficient in law to treat the same as irrigated/Chahi/Aabi‑‑‑High Court having rightly proceeded with considering the potentialities of the lands in question for the purpose of award of compensation to the landowners that too after bringing to bear the law declared by Supreme Court in cases in Province of Punjab through Collector, Bahawalpur District, Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1692; Maqbool Ahmed Fatehally and others v.. The Collector, District Lasbella and others 1992 SCMR 2342 and Fazalur Rahman and others v. General Manager, S.I.D.B. and another PLD 1986 SC 158, on the peculiar facts and circumstances of the case in hand, Supreme Court declined to interfere.

Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164; ‑Land Acquisition Collector/Deputy Commissioner, Abbottabad and others v. Sardar Muhammad Safdar Khan and others 1998 SCMR 2142; Sarhad Development Authority v. Sardar Fakhre Alam R.F.A. No.3 of 1991; Province of Punjab through Collector, Bahawalpur District, Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1692; Maqbool Ahmed Fatehally and others v. The Collector. District Lasbella and others 1992 SCMR 2342; Fazalur Rahman and others v. General Manager, S.I.D.B. and another PLD 1986 SC 158; Collector, Land Acquisition, Mardan and others v: Nawabzada M. Ayub Khan and others 2000 SCMR 1322; Province of Punjab through Collector; Attock v. Engineer Jamil Ahmad Malik and others 2000 SCMR 870; Land Acquisition Collector, Rawalpindi and others v. Dina and others 1999 SCMR 1615; Murad Khan and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647; Abdul Qayum and 15 others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and another 1996 SCMR 1820; Sadiq Niaz Rizvi v. The Collector, District Lasbella and another PLD 1993 SC 80; Market Committee, Kanganpur through Administrator v. Rayyat Ali and others 1991 SCMR 572 ref.

M. Sardar Khan, Senior Advocate Supreme Court, M. Younas Khan Tanoli, Advocate‑General, N.‑W.F.P., M. Latif Khan, Advocate Supreme Court and Abdul Rauf Rohila. Advocate Supreme Court for Appellants.

Mansur Ahmed, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents (in all Appeals except C. As. Nos. 1452 and 1460 of 1999).

Date of hearing: 19th January, 2001.

P L D 2001 Supreme Court 415

Present: Muhammad Bashir Jehangiri

and Javed Iqbal, JJ

SECRETARY TO THE GOVERNMENT OF THE PUNJAB, FOREST DEPARTMENT, PUNJAB, LAHORE through

Divisional Forest Officer‑‑‑Appellant

versus

GHULAM NABI and 3 others‑‑‑Respondents

Civil Appeal No. 1269 of 1998, decided on 22nd November, 2000.

(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan, dated 19‑12‑1996 passed in W.P. No. 5803 of 1994).

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

‑‑‑‑S. 100‑‑‑Registration Act (XVI of 1908), Ss.18 & 49‑‑‑Constitution of Pakistan (1973), Arts. 199 & 185(3)‑‑‑Constitutional petition before High Court‑‑‑Maintainability‑‑‑Transfer of land‑‑‑Disputed questions of facts‑‑­Leave to appeal was granted by Supreme Court to consider the contentions of the petitioner that the voluminous documents produced on record on the basis of which Commissioner and Member (Colonies), Board of Revenue had set aside the order of the E..A.C.0./Collector could not be legally set aside by High Court in exercise of extraordinary Constitutional jurisdiction and High Court erred in law by interfering under. extraordinary Constitutional jurisdiction as restoration of the order of E.A.C.O./Collector would amount to perpetuation of illegality.

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

‑‑‑‑S. 100‑‑‑Registration Act (XVI of 1908), Ss. 17, 18 & 49‑‑‑Transfer of land‑‑‑Shelter‑belt area, allotment of‑‑‑Disputed land was the property of Provincial Government and the same had been given to Forest Department for plantation of shelter‑belt‑‑‑Same land was allotted to the respondent in 'lieu of adjustment of her claim‑‑‑Board of Revenue cancelled the allotment for the reason that the disputed land was not available for allotment as the same had already been transferred to the Forest Department‑‑‑High Court in exercise of Constitutional jurisdiction set aside the order of the Board of Revenue and upheld the allotment‑‑‑Contention of the respondent was that the Forest Department could not have been considered owner of the land as no document pertaining to ownership could be brought on record and under the provisions of S.100 of Transfer of Property Act, 1882, and Ss. 18 & 49 of Registration Act, 1908, the ownership could not devolve upon the department-‑‑Validity‑‑‑Where claim of the respondent could not have been adjusted against the land in dispute, the question of applicability of provisions as contained in 5.100 of Transfer of Property Act, 1882, and Ss.17 & 49 of Registration Act, 1908, would not arise‑‑‑Board of Revenue had decided the controversy in comprehensive manner and the conclusion drawn by the Board did not call for any interference‑‑‑Supreme Court set aside the judgment passed by the High Court and resultantly the order passed by Board of Revenue was upheld.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 1,99‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Disputed question of fact‑‑‑Forums available in the hierarchy under the relevant law had decided all the controversial questions on the basis of record and in accordance with law‑‑‑Interference by High Court‑‑‑Scope‑‑‑High Court could not go into disputed questions of fact in exercise of its Constitutional jurisdiction.

NLR 1992 CU 99; 1991 CLC 2004; 1991 CLC 605; 1991 MLD 1492; 1987 PCr.LJ 1413; 1987 CLC 2519; 1982 CLC 2227; 1990 PCr.LJ 1478; 1990 PCr.LJ 1997; 1990 CLC 456; 1990 CLC 479;.1990 MLD 563; 1990 MLD 389; PLD 1989 Kar. 185; 1989 SCMR 918; 1989 CLC 1253; PLD 1988 Quetta 52; 1988 SCMR 1259; 1988 CLC 2220; 1988 CLC 2201; PLD 1989 Lah. 31; 1987 CLC 2519; 1987 PCr.LJ 1413; 1987 PCr.LJ 939; PLD 1987 Lah. 336; 1986 CLC 2403(2); 1986 CLC 54; 1986 CLC.1146; PLD 1985 Lah. 545; PLD 1985 Lah. 217; PLD 1985 Kar. 546; 1985 PCr.LJ 1437; 1984 SCMR 963; PLD 1984 Kar. 155; 1984 CLC 2002; 1983 CLC 1801; 1983. SCMR 732; 1982 SCMR 497; PLD 1982 Kar. 449; PLD 1982 Kar. 581; PLJ 1981 Kar. 239; PLD 1942 Quetta 136 (sic); 1982 CLC 693; 1982 CLC 553; 1982 CLC 805; 1982 CLC 1115; 1982 CLC 2227; 1982 CLC 2491; 1982 CLC 1784; 1982 CLC 2076; 1982 CLC 2518; PLD 1982 Lah. 401; PLD 1981 Lah. 583; PLD 1981 Lah. 459; 1981 Law Notes 384; 1981 CLC 1242; 1981 CLC 1400; 1981 CLC 1403; 1981 .CLC 1569; 1981 CLC 195; 1980 CLC 952; 1980 Law Notes 26; PLD 1986 Quetta. 93; PLD 1984 Kar. 269; 1970 SCMR 158; PLD 1963 Lah. 63; PLD 1962 Lah. 797; PLD 1964 Dacca, 522; 15 DLR 307; PLD 1980 Quetta 1; PLD 1979 Kar. 212; PLD 1979 Kar. 465; PLJ 1979 Kar. 17.; 1979 CLC 872; PLD 1978 Lah. 917; 1978 PCr.U 141; 1978 SCMR 449; NLR 1978 Civil 1162; PLD 1978 Kar. 867; PLD 1978 Quetta 34; NLR 1978 Civil 597; NLR 1978 Civil 311; PLJ 1976 Quetta 67; PLD 1977 Kar. 214; PLD 1977 Lah. 718; PLD 1977 Kar. 601; PLD 1973 Lah. 230; .PLD 1973 Lah. 628; PLJ 1974 Lah. 330; PLJ 1974 Lah. 598; 1974 PLC 89; 1974 Law Notes 105; PLD 19741 .ah. 318; PLD 1973 Lah. 228; 1973 Law Notes 350; PLD 1975 Lah. 967; PLI 1975 Kar. 304; PLD 1975 Kar. 967; PLJ 1975 Lah. 317; 1975 SCMR 184; 1973 SCMR 422: 1974 SCMR 28; 1984 SCMR 377; PLD 1990 Pesh. 122; 1982 SCMR 372; 1982 SCMR 883; 1984 CLC 925; 1984 CLC 941 aitd 1983 CLC 1801 ref, (d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court acting as Court of appeal‑‑‑Validity‑‑‑Constitutional jurisdiction of High Court under Art. 199 could not be converted into that of an Appellate Jurisdiction‑‑‑Disputed question of fact could not be entered or allowed to be re‑agitated under Constitutional jurisdiction‑‑‑Where relevant law provided other forums for the purpose, finding of fact recorded by Lower Appellate Court on appraisal of evidence could not be disturbed under Constitutional jurisdiction‑‑‑High Court in exercise of Constitutional jurisdiction could neither go into question involving minute details nor could it decide facts of which no foundation was laid, unless the same was shown that such controversy was devoid of supporting record, or perverse.

1982 CLC 1972; 1987 PCr.LJ 1413; PLD 1981 Lah. 511; 1990 MLD 563 and 1990 MLD 344 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Question of fact, investigation of‑‑‑Disputed question of fact which necessitates taking of evidence can more appropriately be done in the ordinary Civil Procedure for litigation by a suit‑‑‑Extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the action of executive or other authority can be established without any elaborate inquiry into complicated or disputed facts.

1991 CLC 1078; PLD 19$9 Pesh. 36; PLD 1990 Kar. 186; PLD 1990 Kar. 378; 1986 CLC 2635; 1984 CLC 3279; 1986 CLC 2559; NLR 1986 UC 407; 1986 SCMR 598; PLD 1987 Quetta 103; 1982 CLC 2268; PLD 1985 Lah. 134; 1986 CLC 2416; PLD 1981 Pesh. 57; PLD 1986 Lah. 409; 1986 Law Notes 1131; 1981 SCMR 291; 1982 CLC 2421; 1981 CLC 1332; 1980 CLC 736; PLD 1982 Lah. 831; 1978 PCr.LJ 141; 1968 SCMR 935; PLD 1970 Dacca 633; PLD 1968 SC 185; 20 DLR (SC) 144; PLD 1967 Dacca 709; PLD 1970 Lah. 569; PLD 1968 Lah. 1244; PLD 1970 (W.P.) (sic) 1; PLD 1971 Lah. 866; PLD 1971 Kar. 517; PLD 1972 Lah. 262; 1971 SCMR 110; 1971 SCMR 697; 1970 SCMR 853; 1969 SCMR 217; 1968 SCMR 880; 1968 SCMR 145; 1970 DLC 330; 22 DLR 337; 1970 DLC 29; 21 DLR 938; PLD 1968 Dacca 367; PLD 1969 Dacca 74; PLD 1969 Dacca 779; PLD 1965 Dacca 263; PLD 1964 SC 636; 16 DLR (SC) 457; PLD 1964 Kar. 468; PLD 1964 BJ 15; PLD 1963 Lah. 98; PLD 1964 Kar. 90; PLD 1964 Dacca 522; 15 DLR 703; PLD 1962 Kar. 712; PLD 1962 Lah. 189; PLD 1962 Lah. 16; PLD 1961 Lah. 842; PLD 1961 Lah. 304; PLD 1961 Lah. 756; PLD 1960 Dacca 541; PLD 1960 Dacca 31; PLD 1960 Dacca 523; PLD 1960 Dacca.660; 12 DLR 255; PLD 1958 Lah. 345; PLR 1959 (1) W.P. 163; 11 DLR (W.P.) 14; 11 DLR 367; PLD 1959 Lah. 915; PLR 1960 (1) W.P. 830 and PLD 1957 Kar. 921 ref.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Re‑appraisal of evidence ‑‑‑Validity‑‑­High Court in exercise of Constitutional jurisdiction cannot re‑appraise evidence and come to its own independent findings where findings of facts have been recorded by Authority below after giving good reasons in support for the same.

1988 CLC 1198 ref.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Refusal of relief‑‑‑Scope‑‑‑Superior Courts have ample jurisdiction to refuse a relief where granting it would tantamount to injustice.

1988 SCMR 516; PLD 1975 SC 331; PLD 1968 Lah. 1334; PLR 1969 (1) W.P. 342; PLD 1968 Lah. 166; 1973 SCMR 127; PLD 1991 SC 691; 1990 CLC 1174; PLJ 1990 Lah. 283; 1984 CLC 1729; PLD 1984 Quetta 158; 1973 SCMR 127; 1990 MLD 2192 and PLD 1984 Quetta 158 ref.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Act without jurisdiction‑‑‑Effect‑‑‑High Court cannot come to rescue of a person seeking its stamps or approval for order or action which was patently unjust, being without jurisdiction and hence, void ab initio.

PLD 1989 SC 166; 1987 MLD 1098 and 1986 CLC 54 ref.

(i) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Grant of relief by High Court‑‑­Scope‑‑‑Where the grant of relief is immoral, unfair or against the dictates of good conscience and fairplay, High Court is not bound to grant relief to such petitioner simply because he is legally entitled to the same.

1990 MLD 2192 ref.

(j) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Grant of relief‑‑‑Pre‑conditions for grant of relief under Constitutional jurisdiction‑‑‑Scope‑‑‑High Court is not obliged to press into service its Constitutional jurisdiction in every case in which illegality or void action or order is impugned‑‑‑High Court is to see, whether the grant of relief prayed for fosters the cause of justice or it perpetuates injustice‑‑‑Where the Court finds that in a given case though the action taken ‑by the authority is illegal but setting aside of the same would result in miscarriage of justice instead of advancing the cause of justice, the Court may decline to press into service its Constitutional jurisdiction‑‑‑Relief in Constitutional jurisdiction being discretionary should not be granted to hold retention of ill‑gotten gains even if for technical reasons impugned order be not strictly justifiable.

1990 CLC 954 ref.

Tariq Mahmood, Additional Advocate‑General, Punjab and Rao Muhammad Yusuf Khan, Advocate‑on‑Record for Appellant.

Raja M. Anwar, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents.

Date of hearing: 22nd November, 2000.

P L D 2001 Supreme Court 433

Present: Abdur Rehman Khan and Abdul Hameed Dogar, JJ ‑

Haji JUNNAT GUL ‑‑‑ Appellant

versus

THE STATE and 3 others‑‑‑Respondents

Criminal Appeal No.329 of 1996, decided on 16th January, 2001.

(On appeal from the judgment dated 16‑9‑1996 of the High Court of Sindh, Karachi passed in Criminal Revision Application No.66 of 1996).

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

‑‑ ‑Ss. 202 & 204‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Penal Code (XLV of 1860), Ss. 161/220/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider whether the inquiry held by the Inspector, Anti‑Corruption Establishment under S.202, Cr.P.C. was bad in law if such inquiry was ordered to be held by the Deputy Director, Anti‑Corruption Establishment, and whether the Special Judge Anti‑Corruption was competent to recall his order about issue of process purported to have been passed under S.204, Cr.P.C.

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

‑‑‑‑Ss. 202, 200 & 537=‑‑Prevention of Corruption Act (II of 1947), Ss.5(2) & 5‑A‑‑‑Penal Code (XLV of 1860), Ss. 161/220/34‑‑‑Cognizance in the case having been taken on a private complaint, provisions of Chaps. XVI and XVII of the Criminal Procedure Code, 1898 were applicable ‑‑‑Special Judge Anti‑Corruption, therefore, rightly exercising his jurisdiction, had recorded the statement of the complainant under S.200, Cr.P.C. and thereafter properly ordered for preliminary enquiry to be conducted under S.202, Cr.P.C. by the Deputy Director, Anti‑Corruption Establishment, which was subsequently done by the Inspector, Anti‑Corruption Establishment‑‑­Inspector was competent to hold preliminary inquiry into the matter as contemplated under S.5‑A of the Prevention of Corruption Act, 1947 and S.202, Cr.P.C. and he, therefore, had rightly conducted the preliminary inquiry and was competent to submit the report‑‑‑Provision of S.5‑A, Prevention of Corruption Act, 1947 nowhere mentioned that a Police officer junior in rank than that of the accused could not conduct preliminary enquiry/investigation in the matter‑‑‑Submission of said report in the Court, instead of forwarding the same to the Deputy Director, Anti‑Corruption Establishment was not an illegality at all, but could be at the most a technical error and even not covered under S.537, Cr.P.C. as it had not prejudiced the case of either side or occasioned a failure of justice‑‑‑Court had issued process only on being satisfied that a prima facie case was made out and as such the cognizance once taken could not be recalled or reversed‑‑‑Only course left in such a case was‑ to assail the issuance of process before an Appellate or Revising Authority, which having not been done the order about issue of process had attained finality and the same could not be recalled‑‑‑Criminal law also did not allow any review‑‑‑Order of recall, thus, was not warranted by law and the same was set aside and the order about issue of process was restored with the direction to Trial Court to proceed with the matter. in accordance with law.

Aziz Maseeh v. The State PLD 1976 Lah. 53 and Azizur Rehman and others v. The State PLD 1960 Dacca 1054 ref.

Gul Zaman Khan, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record (absent) for Appellant.

Raja Abdul Ghafoor, Advocate‑on‑Record for the State.

Respondents Nos.3 and 4 in person.

Date of hearing: 16th January, 2001.

P L D 2001 Supreme Court 438

Present: Muhammad Bashir Jehangiri

and Deedar Hussain Shah, JJ

SAFIA BEGUM and 5 others‑‑‑Appellants

versus

NOOR MUHAMMAD ‑‑‑Respondent

Civil Appeals Nos. 1526 to 1531 of 1995, decided on 27th November, 2000.

(On appeal from the judgment dated 16‑4‑1994 of the Lahore High Court, Lahore, passed in Civil Revisions Nos.1749/D, 1750/1), 1751/1), 1752/1), 1953/1) and 1754/1) of 1984).

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 3(3) & 21‑‑‑Punjab Local Government Act (XXXIV of 1975), S.9(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Pre‑emption suit‑‑­Urban immovable property‑‑‑Notification of such property under Punjab Local Government Act, 1975‑‑‑Validity‑‑‑Pre‑emptor relied on notification issued under S.9(b) of Punjab Local Government Act, 1975, whereby the suit property was declared as urban immovable property‑‑‑Leave to appeal was granted to consider whether the property in dispute was urban immovable property.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 3(3) & 21‑=‑Punjab Local Government Act (XXXIV of 1975), S.9(b)‑‑‑Pre‑emption suit‑‑‑Urban immovable property‑‑‑Notification of‑‑­Pre‑emptor relied on Notification issued under S.9(b) of Punjab Local Government Act, 1975, whereby the suit property was declared as urban immovable property‑‑‑Validity‑‑‑Where the Notification was not issued under S.3(3) of Punjab Pre‑emption Act, 1913, suit property was not held to be urban immovable property.

(c) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑-Ss. 3(3) & 21‑‑‑Punjab Local Government Act (XXXIV of 1975), S.9(b)‑‑‑Pre‑emption suit‑‑‑Change in character of suit land‑‑‑Scope‑‑­Character of suit‑land at the time of its sale was described as Nehri (agriculture land) in Revenue Record‑‑‑Residential colony had sprung up in the suit‑land and the pre‑emptors on the basis of Notification issued under S.9.(b) of Punjab Local Government Act, 1975, claimed the land as urban immovable property‑‑‑Validity‑‑‑Such factor by itself was not taken to be sufficient to establish that the property sold had attained the nature of urban immovable property‑‑‑Lower Appellate Court had rightly decreed the suit‑‑­Judgment and decree of Lower Appellate Court concurred with by the High Court did not suffer from any infirmity as to warrant interference by Supreme Court.

Allah Bakhsh v. Ilahi Bakhsh and 3 others PLD 1975 Lah. 359 and Rahim Bakhsh v. Wahid Bakhsh PLD 1979 Lah. 544 ref.

Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 and Abdul Haq and 4 others v. Sardar Shah and others 1994 SCMR 1238 rel.

Mian Ghulam Rasood, Advocate Supreme Court instructed by Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Appellants (in all C.As.).

Nemo for Respondents (in all C.As.).

Date of hearing: 27th November, 2000.

P L D 2001 Supreme Court 443

Present: Muhammad Bashir Jehangiri, Deedar Hussain Shah and Javed lqbal, JJ

Mai. RASHID BEG‑‑‑Appellant .

versus

REHMAT ULLAH KHAN and 4 others‑‑‑Respondents

Civil Appeal No. 169 of 1995, decided on 19th October, 2000.

(On appeal from the judgment of the Lahore High Court, Lahore,. dated 22‑9‑1993 passed in C. R. No. 172‑D of 1982).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Allotment of plot‑‑‑Leave to appeal was granted by Supreme Court to consider as to whether the High Court was wrong to proceed on the footing that possession of the plot was not delivered to the respondents.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Concurrent findings of fact by the Courts below‑‑­Interference ‑by High Court in such findings in exercise of revisional jurisdiction‑‑‑Scope‑‑‑Where the concurrent findings are based on conjectural presumptions, erroneous assumptions and wrong proposition of law, such findings can be reversed justifiably by High Court while exercising revisional jurisdiction . as conferred upon it under S.115, C.P.C. and interference may be made in the findings when the same are based on insufficient evidence, misreading of evidence, non‑consideration of material evidence, erroneous assumption of facts, patent errors of law, arbitrary exercise of power and where unreasonable view on evidence has been take u due to non‑reading and misreading of evidence.

Karamat Hussain v. Muhammad Zaman PLD 1987 SC 139; Iilahi Bakhsh v. Noor Muhammad PLD 1985 SC 41; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Sheikh Muhammad v. Mst. Hashmat Sultana 1989 SCMR 34; Saheb Khan v. Muhammad Pannah PLD 1994 SC 162; Muhammad Bakhsh v. Province of Punjab 1994 SCMR 1836; Zakirullah Khan v. Faizullah Khan 1999 SCMR 971 and Muhammad Siddique v. Muhammad Akram 2000 SCMR 533 ref.

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

‑‑‑‑Ss. 42 & 56‑‑‑Suit for declaration‑‑‑Allotment of plot=‑‑Disputed plot was cancelled from the name of the defendant and the same remained in his possession‑‑‑Subsequently the plot was allotted to the plaintiff but the possession was not handed over to him‑‑‑Authorities intended to cancel the allotment in the name of the plaintiff as he failed to complete construction in the specified period‑‑‑Such action of the Authorities was assailed by the plaintiff in civil suit which was dismissed by the Trial Court‑‑‑Judgment and decree of Trial Court was upheld by Lower Appellate Court‑‑‑High Court in exercise of revisional jurisdiction set aside the concurrent findings of fact by the Courts below‑‑‑Contention raised by the plaintiff was that as the possession was never handed over to him the construction could not be completed in specified period‑‑‑Validity‑‑‑Where the defendant had not invoked the jurisdiction of any Civil Court to get his title established or for the redressal of his grievances. but kept on waiting for the result of litigation initiated by the plaintiff, he could not derive any benefit as he was having no legal status after the cancellation of plot in question‑‑‑In the present case, physical handing over of the plot was subject to completion of certain formalities of the Authorities and suo motu assumption of the plot by the plaintiff was not possible as it was for the department concerned to hand over its proper possession‑‑‑Appeal was dismissed.

PLD 1983 SC 53 and 1981 SCMR 1233 ref.

Shahbaz Khurshid, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record (absent) for Appellant.

Ch. Muhammad Farooq, Senior. Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents Nos. 1 and 2.

Dil Muhammad Tarar, Advocate Supreme Court for Respondents Nos.3 to 5.

Date of hearing: 19th October, 2000.

P L D 2001 Supreme Court 449

Present: Muhammad Bashir Jehangiri and Javed Iqbal, JJ

MUHAMMAD ZAFAR‑UZ‑ZAMAN and 4 others‑‑‑Appellants

versus

FAQIR MUHAMMAD through Legal Heirs‑‑‑Respondent

Civil Appeal No. 173 of 1995, decided on 24th November, 2000.

(On appeal from the judgment dated 8‑5‑1993 of the Lahore High Court, Lahore, passed in C.R. No. 207/1) of 1991).

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

‑‑‑‑S. 52‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Lis pendens, principle of‑‑‑Contentions by the petitioner were that principle of lis pendens tinder S.52 of Transfer of Property Act, 1882 was incorrectly applied by the High Court in view of the fact that in the agreement it had specifically been mentioned that oral agreement for sale of the property in question had taken place 5/6 years earlier and a sum of Rs.10,000 as token money had already been paid; that the High Court had misread the contents of plaint as also the evidence on record to hold that the executant of the agreement had already sold certain portion of land and that her holding was substantially reduced and that the executant was still owner of sufficient land in the village besides being owner of land in other villages‑‑‑Leave to appeal was granted by Supreme Court to consider the contentions raised by the petitioner.

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

‑‑‑‑S. 52‑‑‑Lis pendens, principle of‑‑‑Applicability‑‑‑Agreement to sell, execution of‑‑‑Vesting of title in transferee in a sale pendente lite‑‑­Validity‑‑‑Provisions of S.52 of Transfer of Property Act, 1882, do not prevent vesting of such title but only make it subject to the rights of other parties as decided in the suit‑‑‑Effect of S.52 of Transfer of Property Act, 1882, is not to wipe out a sale pendente lite altogether, but to subordinate it to the rights based on the decree in the suit‑‑‑As between the parties to the transaction, however, it is perfectly valid and operates to vest the title of the transferor in the transferee‑ ‑Broad purpose of the provisions is to maintain the status quo unaffected by the Act to the parties to the litigation pending its determination‑‑‑No. lawful jurisdiction exists to put a restrictive construction on S.52 of Transfer of Property Act, 1882, and stretch it too far by inferring that even agreement to sell which is subject to limitations as enumerated in the provisions of law cannot be executed.

Hiranya Bhusan v. Gouri Dutt AIR 1943 Cal. 227; T. Bhup Narain Singh v. Nawab Singh AIR 1957 Pat. 729 and Ata Muhammad v. Zubair Mahmood Khan 1980 CLC 446 rel.

(c) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 52‑‑‑Lis . pendens, principle of‑‑‑Scope‑‑‑Rule of lis pendens is based not on the doctrine of the notice but on expediency, that is "necessity for final. adjudication":

Tribhovandas v. Mangaldas AIR 1954 Saurashtra 82 ref.

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

‑‑‑‑S. 12‑‑‑Transfer of Property Act (IV of 1882), ‑ S‑52 ‑‑‑ Specific performance of agreement to sell‑‑‑Principle of lis pendens‑‑‑Applicability‑‑­Reduction in the share of the defendant‑‑‑Execution of agreement ‑‑‑Extent‑‑­Suit land was subject‑matter of suit pending in the Court‑‑‑Defendant, at the time of execution of agreement, was exclusive owner of the suit land but her exclusive ownership was reduced to that of 1/3rd and the shares were given to some other person against whom the plaintiff had no grievance‑‑‑Trial Court decreed the suit and the judgment was upheld by Lower Appellate Court‑‑‑High Court in exercise of revisional jurisdiction set aside the concurrent judgments and allowed the revision‑‑‑Validity‑‑‑Defendant had agreed to sell out the land comprising of specific numbers and the same‑was also indicative from the agreement and plaint and thus the plaintiff would be entitled to 1/3rd of the land owned, by the defendant‑‑‑Judgment of High Court was set aside and the judgment and decree passed by Trial Court were upheld.

Hiranya Bhusan v. Gouri butt AIR 1943 Cal. 227; T. Bhup Narain Singh v. Nawab Singh AIR 1957 Pat. 729; Ata Muhammad v. Zubair Mahmood Khan 1980 CLC 446; Krishnaji v. Anusayabai AIR 1959 Bom. 475 and Tribhovandas v . Mangaldas AIR 1954 Saurashtra 82 rel.

Ch. Muhammad Hassan, Advocate Supreme Court and Sh. Masood Akhtar, Advocate‑on‑Record (absent) for Appellants.

Iqbal Ahmad Qureshi, Advocate‑on‑Record (absent) for Respondent.

Date of hearing: 15th November, 2000.

P L D 2001 Supreme Court 458

Present: Nazim Hussain Siddiqui, Javed Iqbal and Hamid Ali Mirza, JJ

MOAZAM SHAH‑‑‑Appellant

versus

MOHSAN SHAH and another‑‑‑Respondents

Criminal Appeals Nos.319 and 320 of 1994, decided on 9th January, 2001.

(On appeal from the judgment dated 27‑3‑1994 of the Lahore High Court, Rawalpindi Bench passed in Criminal Appeal No.20 of 1990, Murder Reference No.85 of 1990 and Criminal Revision No.60 of 1990).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Sentence‑‑‑Leave to appeal was granted to complainant by Supreme Court to consider whether the judgment of High Court reducing sentence of accused from death to life imprisonment was in conformity with the guidelines enunciated in the case­ law on the subject.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appraisal of evidence‑‑‑Sentence, enhancement of‑‑‑Ocular account of occurrence furnished by eye‑witnesses was not shattered despite lengthy cross‑examination‑‑‑Mere relationship was no ground to discard the testimony of witnesses, because intrinsic worth of the testimony was to be kept in view while assessing its evidentiary value‑‑‑Parties were interrelated‑­No specific reason was available for the eye‑witnesses to support one party at the cost of the other‑‑‑Eye‑witnesses had no motive to falsely implicate the accused‑‑‑Case was not one of mistaken identity‑‑‑Accused being the only person accused in the matter, there was no question of substitution‑‑­Accused; thus, was proved to have committed the murder of the deceased‑‑­Motive for the occurrence also .stood proved‑‑‑Accused had killed the deceased under a preconceived strategy which had stunned the deceased and prevented him from, taking any step to save his life‑‑‑Ex facie it was a premeditated arid cod‑blooded murder‑‑‑Deceased was only 24 years old‑‑‑ Judgment of High Court to the extent of altering the sentence of death to imprisonment for life was set aside in circumstances and that of Trial Court awarding death sentence to accused was restored.

Abdur Rashid v. Umit Ali and 2 others PLD 1975 SC 227; Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452; Muhammad Afzal v. Ghulam Asghar and others PLD 2000 SC 12; Bismillah v. Muhammad Jabbar 1998 SCMR 860; Abdul Wahib alias Rehra v. The State 1999 SCMR 1668 and Noor Muhammad v. The State Appeal No. 174 of 1995 ,rel.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Motive‑‑‑Connotation‑‑‑Evidentiary value‑‑‑Motive precedes action and is basically a circumstantial evidence‑‑‑Motive by itself neither proves nor disproves any assertion conclusively‑‑‑Motive does help in determining the guilt of a person, particularly at the stage of investigation, but‑ it remains invisible to all in many cases except the offenders‑‑‑When there is clear proof that person has committed a crime, motive or previous ill‑will becomes immaterial and is not necessary to sustain a conviction.

(d) Penal Code (XLV of 1860)‑‑­

‑‑‑‑S. 302‑‑‑Punishment‑‑‑Murder cases must be seen with reference to the interest of the society and be condemned as such‑‑‑To curb crime in the society is the need of the hour‑‑‑One object of criminal justice is to award exemplary punishment to offenders in order to deter them from committing crimes and in this way also to serve a stern warning to those members of the society who have behavioural leaning towards criminality.

Noor Muhammad v. The State Appeal No. 174 of 1995 ref.

Sh. Zamir Hussain Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant (in Criminal Appeal No.319 of 1994). '

Muhammad Javed Aziz Sindhu, Advocate Supreme Court for Respondents (in Criminal Appeal No. 319 of 1994).

Dil Muhammad Tarar, Advocate Supreme Court for the State (in Criminal Appeal No.319 of 1994).

Muhammad Javed Aziz Sindhu, Advocate Supreme Court for Appellants (in Criminal Appeal No.320 of 1994)

Dil Muhammad Tarar, Advocate Supreme Court for the State (in Criminal Appeal No.320 of 1994).

Date of hearing: 9th January, 2001.

P L D 2001 Supreme Court 465

Present: Sh. Riaz Ahmed, Mian Muhammad Ajmal and Javed lqbal, JJ

MUHAMMAD ILYAS and another‑‑‑Appellants

versus

MUHAMMAD SUFIAN and another‑‑‑Respondents

Criminal Appeals Nos.65 and 66 of 1998, decided on 30th January, 2001.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 1‑4‑1997 passed in Criminal Appeal NO. 11 of 1993 and Murder Reference No.41 of 1993).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to the complainant by the Supreme Court to consider the contention that the accused, in circumstances, did not deserve lesser sentence as he was a mature man of 35 years and not a young person who could be influenced to commit the crime at the asking of an elder‑‑‑Re‑appraisal of evidence was also to be done in the case.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appraisal of evidence‑‑‑Doctrine of influence ‑‑‑Application‑‑­Influence exerted 'by father on son of mature age‑‑‑Whether mitigating circumstances‑‑‑Sentence, enhancement of‑‑‑Ocular version was worthy of credence and confidence inspiring and was supported by medical evidence‑‑­Statements of eye‑witnesses could not be disbelieved on account of their relationship with the deceased and relationship inter se‑‑‑Parties were living amicably in the same vicinity for the last so many years‑‑‑No serious enmity was alleged against the eye‑witnesses‑‑‑Accused according to prosecution had committed the murder under the influence or direction of his father who had been insulted by the deceased a few days back prior to the occurrence‑‑‑Such direction given by the father under the given circumstances did not constitute a mitigating circumstance (net to award normal penalty of death to accused)‑‑‑Accused had inflicted successive "Chhuri" blows on the vital parts of the body of the deceased in a brutal and callous manner who succumbed to the injuries‑‑‑No blanket authority for commission of brutal, gruesome and wanton murder could be granted to grown‑up and elderly persons under the garb of influence of elders including the father as it could lead to drastic consequences and there would be no end to merciless killings‑‑‑Accused admittedly was more than 35 years of age at the time of occurrence and did not deserve any clemency in the absence of any mitigating circumstances which were not available in the case‑‑‑Conviction of accused was upheld in the circumstances, judgment of High Court whereby sentence of death of accused was altered to imprisonment for life was set aside and the order of Trial Court awarding death sentence to accused was restored‑‑‑Appeal was disposed of accordingly.

1985 SCMR 477; Abdur Rashid v. Umid Ali PLD 1975 SC 227; Jahan Khan v. State PLD 1959 SC (Pak.) 488; Niaz v. State PLD 1960 SC 387; Nazir and others v. State PLD 1962 SC 269; Muhammad Ismail v. Khushi Muhammad and 7 others PLD 1974 SC 27; Iqbal alias Bhala v. State 1994 SCMR 1; Talib Hussain v.State 1995 SCMR 1776; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; The State v. Rab Nawaz and another PLD 1974 SC 87; Abdus Sattar v. Muhammad Anwar and 6 others, PLD 1974 SC 266; Asadullah v. Muhammad Ali and 5 others PLD 1971 SC 541 and Mst. Nuran v. Nura and another PLD 1975 SC 174; Zafar v. State 1999 SCMR X028 and Noor Muhammad v. State 1999 SCMR 2722 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Interested witnesses, corroboration of‑‑‑Courts although as a rule of prudence have more often‑than not insisted on independent corroboration before placing reliance on the testimony of interested witnesses, yet it is not an inflexible rule to be rigidly and unexceptionally applied‑‑‑Witnesses related to the deceased might be otherwise quite natural furnishing direct evidence of a convincing nature unless reasons to believe exist that they have an animus against the accused and are giving a rather distorted or exaggerated account which does not inspire confidence‑‑‑Even uncorroborated testimony of such witnesses may be implicitly relied upon of course in the context of other relevant circumstances of each case.

Abdur Rashid v. Umid Ali PLD 1975 SC 227; Jahan Khan v. State PLD 1959 SC (Pak,) 488; Niaz v. State PLD 1960 SC 387; Nazir and others v. State PLD 1962 SC 269; Muhammad Ismail v. Khushi Muhammad and 7 others PLD 1974 SC 27 and Iqbal alias Bhala v. State 1994 SCMR I ref

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Sentence‑‑‑Mitigating circumstances‑‑‑Influence of elders‑‑­Doctrine of influence of elders is always considered a relevant factor and often constitutes mitigating circumstance qua tender age of the accused and due t0 immaturity of mind, but the doctrine of influence cannot be made applicable to a person who is about 35 years of age and is fully mature.

(e) Penal, Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Sentence of death, commutation of‑‑‑Sentence of death which is normal sentence in a murder case should not be altered on the basis of flimsy grounds.

Nuran v. Nura PLD 1975 SC 174 and Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452 ref.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Sentence‑‑‑Mitigating circumstances‑‑‑Principle of proportionality is not to be lost sight of while considering reasons as mitigating circumstances‑‑‑Principles.

It has to be kept in mind while considering reasons as mitigating circumstances that the principle of proportionality is not lost sight of. If a person is slapped, the aggrieved person or a close relative of the aggrieved person does not get the right to come back after a week duly armed with the specific intention of killing and commits a cold‑blooded murder. The person who had slapped him a week back cannot take a plea in the trial for reduction of sentence that this was natural reaction to the slap given to him or to his close relative a week back by the deceased. There should be, at least, some semblance of proportion between the injury or insult given by the deceased and the "reaction" by the accused in killing the deceased and then the question of time lag between the so‑called provocation and the reaction in the form of cold‑blooded murder is also relevant. There is always a distinction of degree between a fight which leads to a murder on the spur of the moment or within a short time and a case where there is considerable time lag between the so‑called provocation and the so‑called reaction in the form of murder. In the first category of case, perhaps it might be possible to advance the argument that a case for lesser sentence is made out subject to proportionality between "provocation" and "reaction" but in the other category of cases without there being other mitigating circumstances, no case would be made out for awarding the lesser sentence.

The normal sentence for an offence of murder is death sentence. This is Co be awarded as a matter of course except where the Court finds some mitigating circumstances which may warrant imposition of lesser sentence namely imprisonment for life.

The people are losing faith in the dispensation of criminal justice by the ordinary criminal Courts for the reason that they either acquit the accused persons on technical grounds or take a lenient view in awarding sentence. It is high time that the Courts should realise that they owe duty to the legal heirs/relations of the victims and also to the society. Sentences awarded should be such which should act as a deterrent to the commission of offences.

Zafar v. State 1999 SCMR 2028 ref.

Rab Nawaz Noon, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Appellant (in Criminal Appeal.65 of 1998).

Arshad Ali Chaudhry, Advocate Supreme Court for Respondent and for Appellant in Criminal Appeal No.66 of 1998).

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing; 16th January, 2001.

P L D 2001 Supreme Court 476

Present: Muhammad Bashir Jehangiri and Deedar Hussain Shah, JJ

Mst. GHULAM FATIMA and 12. others‑‑‑Appellants

versus

IMDAD HUSSAIN ‑‑‑Respondent

Civil Appeal No. 1378 of 1995, decided on 30th November, 2000.

(On appeal from the judgment dated 8‑11‑1994 of the Lahore High Court, Multan Bench, Multan, passed in R.S.A. No.443 of 1977).

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S. 23‑‑‑Limitation Act (IX of 1908), S.14‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Exclusion of time‑‑‑Proceedings before a Court having no jurisdiction under a bona fide mistake‑‑‑Failure to deposit pre‑emption money in statutory period‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the plaintiff was legally entitled to have delay condoned when the decree dated 22‑7‑1974 was one of consent, whether plaintiff was not entitled to invoke the provisions of S.14.of Limitation Act, 1908, when he had himself instituted suit in the Trial Court and then consented to the decree being passed and whether the suit stood automatically dismissed in view of the direction contained in the decree dated 22‑7‑1974 to deposit the pre‑emption money on 7‑10‑1974 and that direction had not been complied with.

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 21 & 23‑‑‑Pre‑emption suit‑‑‑‑Deposit of pre‑emption money after the statutory. period‑‑‑Such deposit was within time granted by the High Court‑‑­Effect ‑‑‑Pre‑emptor having already availed the entire time yet the amount having been deposited within the period extended by the High Court, no default was committed by the pre‑emptor in circumstances.

Irshad Ahmad and 2 others v. Ghulam Muhammad and another PLD 1978 Lah.438 approved.

Malik Barkat Ali Dogar v. Muhammad Shafi and others PLD 1990 SC 60; Muhammad Sanadi and 2 others v. Abdul Wali Shah PLD 1979 Pesh. 17 and Aziz Ahmad and another v. Munir Ahmad and 2 others 1994 SCMR 2039 ref.

(c) Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 21 & 23‑‑‑Limitation Act (IX of 1908), S.14‑‑‑Pre‑emption suit‑‑­Wrong valuation of suit‑‑‑Exclusion of time of proceedings bona fide in Court without jurisdiction‑‑‑Failure to deposit Zar‑e‑Punjam (pre‑emption money) within statutory period‑‑‑ Concurrent findings of fact by the Courts below‑‑‑Technical error, committed by the Trial Court‑‑‑Effect‑‑‑Suit was filed in the Court of Senior Civil Judge on 30‑6‑1977 and keeping in view the valuation of the suit as shown in the plaint, it was entrusted to Civil Judge First Class for trial‑Subsequently on the basis of net profits the Civil Court assessed the value of the suit for the purpose of court‑fee. and jurisdiction‑‑‑Later on it transpired that suit was not triable by the Civil Judge and ultimately the plaint was returned on 5‑6‑1978 which was presented in the Court of competent jurisdiction the same day‑‑‑Initially when the plaint was presented in the Court of Senior Civil Judge, it was within time and in such circumstances a mistake with regard to the entrustment of the case in the forum not having pecuniary jurisdiction was considered to be a mere technical error‑‑‑Validity‑‑‑Time consumed in the forum not having pecuniary jurisdiction was condoned under S.14 of Limitation Act, when the three Courts were satisfied that the defect of jurisdiction had occurred on account of technical mistake for which the plaintiffs were not to be blamed‑‑‑Where there were concurrent findings of three Courts below to the effect that the matter was beyond the pecuniary jurisdiction of the Civil Judge, order passed by him for deposit of Zar‑e-­Panjam making good deficiency of the court‑fee could not result in the penal consequences of the rejection of the plaint‑‑‑No law or legal infirmity of the kind warranting interference of Supreme Court in the judgment passed by the High Court was found‑‑‑Interference was declined by Supreme Court.

Mst. Zeba and 12 others v. Member‑III, Board of Revenue, Balochistan and 2 others 1986 CLC 233; Maulvi Hamad Yar v. Mst. Hajran PLD 1966 (W.P.) BJ 1; Mst. Karim Bibi and others v. Zubair and others 1993 SCMR 2039 and Raja Muhammad Ayub and others v. Muhammad Ijaz Khan and others 1982 SC&IR 1105 ref.

M. Khalid Alvi, Advocate Supreme Court instructed by Ejaz Ahmad Khan, Advocate‑on‑Record for Appellants.

Ch. Muhammad Khan, Advocate Supreme Court for Respondent.

Date of hearing: 30th November, 2000.

P L D 2001 Supreme Court 482

Present: Rana Bhagwan Das and Deedar Hussain Shah, JJ

AFTABUDDIN QURESHI and another‑‑‑Petitioners

versus

Mst. RACHEL JOSEPH and another‑‑‑Respondents

Criminal Petition for Leave to Appeal No. 108‑K of 1999, decided on 28th August, 2000.

(On appeal from the order dated 1‑11‑1999 in Criminal Appeal No.75 of 1998 of the High Court of Sindh).

(a) Interpretation of statutes‑‑‑

‑‑‑‑ Alteration of law during the pendency of an action‑‑‑Effect‑‑‑When the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights.

State v. Muhammad Jamil PLD 1965 SC 681 ref.

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

‑‑‑‑S. 417(2‑A)‑‑‑Penal Code (XLV of 1860), Ss.420/448/34‑‑‑Constitution of Pakistan (1973); Art.185(3)‑‑‑Effect of insertion of subsection (2‑A) in S.417, Cr.P.C. on the pending proceedings‑‑‑Acquittal of accused by the Sessions Court having taken place long after a right of appeal accrued to the aggrieved person, same would not relate back to the date of prosecution‑‑­Undoubtedly; there was no substantive right vesting in the accused which could be said to be adversely affected by the amendment in law making a provision for a right of appeal at the instance of an aggrieved person;‑­Amendment introduced in S.417, Cr.P.C. being essentially of procedural character would operate retrospectively and affect all pending cases, for neither any right of accused person was taken away, nor the ends of justice defeated by retrospective application of the provision‑‑‑Even if the amended provision was applied prospectively, case of the accused was fully covered by it‑‑‑Neither any right had accrued to the accused, nor was the same taken away by reason of filing of acquittal appeal at the behest of the complainant‑‑‑No miscarriage of justice appeared to have been occasioned by entertaining acquittal appeal against the judgment of acquittal‑‑‑View taken by High Court was neither contrary to law, nor in violation of the settled principles for interpretation of statutes‑‑‑Leave to appeal was refused to accused by Supreme Court accordingly.

Ghazi v. State PLD 1962 Lah. 662; Essential Industries v. Central Board.of Revenue PLD 1969 Lah. 24; Mir Hassan v. State PLD 1969 Lah. 786; State v. Muhammad Jamil PLD 1965 SC 681; S.M. Yusuf & Brothers v. Muhammad Mehdi Pooya PLD 1965 SC 15; Nabi Ahmad v. Home Secretary, Government of West Pakistan PLD 1969 SC 599; PIA Corporation v. Pak Saaf Dry Cleaners PLD 1981 SC 553 and Zahid Ali v. Abdul Hamid 1996 PCr.LJ 586; Adnan Afzal v. Sher Afzal PLD 1969 SC 187; Colonial Sugar Refining Company Limited v. Irving 1905 AC 369; Joseph Suche & Company Limited (1875) 1 Ch. D 48; Construction of Statutes by Crawford 1940 Edn., p.581; Salmond's Jurisprudence, 12th Edn., 1966, p.128; Muhammad Afzal v. Karachi Electricity Corporation 1998 SCMR 92 and Aftab Ahmed v. KESC 1997 SCMR 197 ref.

(c) Law of procedure‑‑‑

‑‑‑‑Definition‑‑‑Law of procedure may be defined as that branch of law which governs the process of litigation‑‑‑All the residue is substantive law and relates not to the process of litigation but to its purposes and subject­matter.

Salmond's Jurisprudence, 12th Edn., 1966, p.128 ref.

Abdul Latif Channa, Advocate Supreme Court and Ahmadullah Faruqi for Petitioners.

Nemo for Respondent No. 1.

Raja Qureshi, Advocate‑General, Sindh (on Court's Notice).

Date of hearing: 25th May, 2000.

P L D 2001 Supreme Court 489

Present: Muhammad Bashir Jehangiri, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

HABIB BANK LIMITED‑‑‑Appellant

versus

MUHAMMAD ABBAS and 2 others‑‑‑Respondents

Civil Appeal No.246 of 1999, decided on 7th November, 2000.

(On appeal from the judgment of High Court of Sindh, Karachi, dated 13‑3‑1998 passed in H.C.A. No. 16 of 1991).

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

‑‑‑‑0. XXXIV, RA(1)(2)‑‑‑Final decree‑‑‑Limitation‑‑‑Extension of period of limitation‑‑‑Decree‑holder sought extension in time on the ground that the judgment‑debtor made certain payments towards satisfaction of decree after the period of limitation‑‑‑Validity‑‑‑Such payment made after expiry of the period of limitation for passing a final decree would not revive the period of limitation which had already lapsed.

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

‑‑‑‑O.XXXIV, R.4(2)‑‑‑Final decree‑‑‑Limitation‑‑‑Extension of period of limitation‑‑‑Jurisdiction of Court‑‑‑Scope‑‑‑Discretion conferred on the Court relates to the extension of time for payment of decretal amount by the judgment‑debtor after the sale and before its confirmation as well as in a case in which no sale had taken place at all.

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

‑‑‑‑O.XXXIV, R.4(2)‑‑‑Final decree‑‑‑Limitation‑‑‑Right to apply for final decree‑‑‑Accrual of such right‑‑‑Scope‑‑‑In mortgage suit in which the preliminary decree has been passed stipulating the, period within which the defendant is directed to make payment in Court or within the time extended by the Court, in the event of the failure of the defendant to discharge his obligation under the preliminary decree, right to apply to the Court would accrue on expiry of the date prescribed in the preliminary decree or extension, if any, granted by the Court which passed the decree.

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

‑‑‑‑0. XXXIV, Rr. 2 & 4‑‑‑Redemption of mortgaged property‑‑­Preliminary decree‑‑‑Right to redeem a mortgage and a right to recover a mortgaged debt‑=‑Distinction‑‑‑Both the rights are different and distinct from each other, they are neither co‑extensive nor co‑existent‑‑‑Right to recover mortgage debt starts after passing of preliminary decree but on the failure of defendant/judgment‑debtor, decree‑holder is required to take steps for passing a preliminary decree execution whereof can be sought in law within 3 years from the date of the decree‑‑‑Where preliminary decree is in appeal before a higher forum, the period of limitation would run from the date of the Appellate Court's decree and to that extent the period would stand extended.

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

‑‑‑‑O. XXXIV, R.4(2)‑‑‑Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), S. 8‑‑‑Limitation Act (IX of 1908), Art.181‑‑‑Final decree‑‑‑Limitation‑‑‑Filing of application for final decree after the period of limitation‑‑‑After expiry of period of limitation for a final decree, the judgment‑debtors had made some payments to the decree‑holder Bank which were credited in his account‑‑‑Neither the period for payment of decretal amount was extended nor was the preliminary decree assailed before the appellate forum‑‑‑Decree‑holder applied for final decree after the period of limitation and sought extension of such limitation‑‑‑High Court declined any extension of time‑‑‑Validity‑‑‑Where the preliminary decree itself could not be pressed into service for execution, decree‑holder was required to be diligent and cautious in taking timely steps for the passing of final decree‑‑­Deposit of certain amount by judgment‑debtor after the period of limitation by itself would not be helpful in extending the period of limitation prescribed by law‑‑‑Application for passing final decree in a mortgage suit under the provisions of O.XXXIV, C.P.C. could be filed within three years from the date when the right to apply accrued to the holder of a preliminary decree‑‑‑Such application would be governed by Art.181 of Limitation Act, 1908‑‑­Preliminary decree could not be allowed to remain on the face of the record for indefinite period as the same was not capable of execution independently of a final decree which was to follow. in due course of time ‑‑Senior officials of the decree‑holder Bank, in the present case, were grossly negligent in prosecuting their case‑‑‑Decree‑holder's remedy under the law might be barred but right under the decree otherwise remained intact and mutual rights and obligations might be enforced by the parties at their sweet will even out of Court.

Zubeda Bano v. S.M. Anwar Sethi PLD 1982 Kar. 216; Tikamdas v. Abdul Wali PLD 1968 SC 241 and Ramanathan v. Alagappa AIR 1930 Mad. 528 distinguished.

Balaram Naik v. Kanhai Bharan Mahpatra AIR 1916 Pat. 282(1); Gajadhar v. Kishen AIR 1917 All. 163; ,Datto Atmaram v. Shankar Dattatraya ILR 38 Born. 32; M.A.L.M.Chettyar Firm v. Mating Po AIR 1935' Rang. 239; Ram Nath v. Deokinandan Krishna AIR 1947 All. 83; Fitzholmes v. Bank of Upper India AIR 1927 PC 25 and Ideal Life Insurance Company, Ltd. v. Usman 1982 CLC 2191 ref.

(f) Civil Procedure Code.(V of 1908)‑‑‑

‑‑‑‑O. XXXIV, R.2‑‑‑Preliminary decree‑‑‑Effect‑‑‑After passing of preliminary decree suit stands finally disposed of and does not remain on the board of pending cases of Court.

A.R. Akhtar, Advocate‑on‑Record for Appellant.

Ali Abbas, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 7th November, 2000.

P L D 2001 Supreme Court 499

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

Mian ASIF ISLAM‑‑‑Appellant

versus

Mian MUHAMMAD ASIF and others‑‑‑Respondents

Civil Appeal No.691 of 1999, heard on 23rd November, 2000.

(On appeal from the judgment dated 4‑12‑1997 passed by Lahore High Court, Lahore in Civil Revision Petition No. 1458/D of 1997).

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 30 & 31‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Pre‑emption suit‑‑­Limitation‑‑‑Failure to give notice of sale‑deed‑‑‑Contention of the pre­emptor was that the vendee had kept the factum of sale‑deed secret for which he had no notice and as nothing was mentioned in the written statement to indicate whether any notice had been given by the Registering Officer after registering the deed, therefore, the limitation would start running from the date when the pre‑emptor came to know regarding registration of sale‑deed and without recording evidence as regards notice which was to be given to the public under S.31 of Punjab Pre‑emption Act, 1991, by the Registering Officer, the plaint could not be rejected under O.VH, R.11, C.P.C.‑‑‑Leave to appeal was granted by Supreme Court to consider the provisions of Ss.30 & 31 of Punjab Pre‑emption Act, 1991.

Per Iftikhar Muhammad Chaudhry, J.‑

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 31(2)‑‑‑Word "shall" as used in S.31(2) of Punjab Pre‑emption Act, 1991‑‑‑Object and scope‑‑‑By the use of word "shall" compliance of the same has been made compulsory under the command of law as the provision has been enacted for the benefit of general public which also includes pre­emptor‑‑‑Object of the use of word "shall" is to restrain the vendor and vendees to conceal sale of a pre‑emptable property in order to deprive a pre­emptor from enforcing right of pre‑emption in respect of sold property.

(c) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 31(2)‑‑‑Pre‑emption suit‑‑‑Limitation‑‑‑Notice to general public‑‑­Object‑‑‑Failure to issue such notice‑‑‑Effect‑‑‑Registering Authority, under the provisions of S.31(2) of Punjab Pre‑emption Act, 1991, is bound to complete the registration of document and make the same public in the prescribed manner‑‑‑Where the provisions of S.31(2) of Punjab Pre‑emption Act, 1991, are not complied with, despite registration of sale‑deed, it would be deemed that general public including the pre‑emptor had no knowledge about the registration of the document and time of four months for filing suit for pre‑emption will run from the knowledge of pre‑emptor about the sale.

(d) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 31(2)‑‑‑Provisions of S.31(2) of Punjab Pre‑emption Act, 1991, are mandatory in nature.

Interpretation of Law by Crawford; Corpus Juris Secundum, Vo1.59, pp. 1078, 1079; Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134 and Dr. Sher Afghan v. Aamar Hayat Khan and 2 others 1987 SCMR 1987 ref.

(e) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 30 & 31‑‑‑Both the sections being mandatory in nature have to be read together in conjunction of each other.

(f) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, Rr. 6 & 11‑‑‑Plaint, rejection of‑‑‑Documents to be considered‑‑­Reply to application under O. VII, R.11, C.P.C. cannot be considered as part of the plaint‑‑‑While examining application moved by defendant under O.VII, R.6, C.P.C., except the contents of the plaint, reference to no other document has to be made.

(g) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 21, 30 & 31‑‑‑Civil Procedure Code (V of 1908), O.VII, Rr.6 & 11‑‑‑Pre‑emption suit‑‑‑Limitation‑‑‑Rejection of plaint‑‑‑Sale‑deed was executed on 8‑2‑1995 and the suit was filed on 24‑10‑1995‑‑‑Application under O.VII, R.11, C.P.C. was filed on the ground that the suit was filed beyond the period of limitation‑‑‑Trial Court allowed the application and .the plaint was rejected‑‑‑Order of Trial Court was upheld by Lower Appellate Court and revision before High Court also met the same fate‑‑‑Contention by the pre7emptor was that there was no notice of sale as required under S.31 of Punjab Pre‑emption Act, 1991, therefore, plaint could not be rejected without recording of evidence‑‑‑Validity‑‑‑‑In the plaint the plea for not filing the suit within four months from the registration of sale‑deed was not the non‑compliance of S.31(2) of Punjab Pre‑emption Act, 1991, by the Registering Officer‑‑‑While examining application moved by the defendant under O.VII, R.6, C.P.C., except the contents of the plaint, reference to. no other document had to be made‑‑‑Trial Court had rightly rejected the plea of the pre‑emptor raised for the first time in the reply of the application ‑‑‑Pre­emptor, in the present case, had knowledge about the factum of sale of the subject‑matter of the suit but he did not approach the Court for the relief within time, therefore, no interference in the judgment was called for ­Appeal was dismissed by Supreme Court.

1995 SCMR 1510; Maulana Nur‑ul‑Haq alias Ibrahim Khalil 2000 SCMR 1305 and Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

Per Hamid Ali Mirza, J.‑‑

(h) Punjab Pre‑emption Act (IX of 1991)‑‑

‑‑‑‑Ss. 5, 30 & 31‑‑‑Pre‑emption suit‑‑‑Limitation‑‑‑Failure to fix notice of sale under S.31 of Punjab Pre‑emption Act, 1991‑‑‑Effect‑‑‑Right of pre­emption arises only in case of sale of immovable property vide S.5 of Punjab Pre‑emption Act, 1991, as the same can take place either by registration of sale‑deed or otherwise as provided under S.30 of Punjab Pre‑emption Act, 1991, when the title of the said property as required by law is passed on to the vendee i.e. where the deed of conveyance is registered or otherwise‑‑­Such right of pre‑emption to pre‑emptor does not arise when public notice is affixed as registration of a document is not a thing of which either the executant, i.e. vendor, or the vendee has to do anything in that direction as such act is to be performed after execution of a document by the parties by the officer appointed by law for that purpose.

(i) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 30 & 31‑‑‑Limitation Act (IX of 1908), Art.129(e)‑‑‑Pre‑emption suit‑‑‑Limitation‑‑‑Extension of time‑‑‑Provisions of S.30 of Punjab Pre­emption Act, 1991, are mandatory in nature‑‑‑Period of four months from the date of registration fixed by S.30 of Punjab Pre‑emption Act, 1991, cannot be extended because of S.31 of the Act as official act is presumed to have been duly and regularly performed‑‑‑Time of four months will run from the date of knowledge of pre‑emptor only if the sale is not under clauses (a), (b), (c) or (d) of S.30 of the Act‑‑‑Time cannot be made to run from the date of knowledge of giving of public notice as required ,by S.31 of the Act .in case the sale is through registration of deed..

(j) Interpretation of statutes‑‑

‑‑‑‑ Law should be saved rather than destroyed and the Court must lean in favour of upholding the constitutionality of legislation.

Dr. Tariq Nawaz and another v. Government of Pakistan 2000 SCMR 1956 ref.

(k) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 31‑‑‑Word "shall" used in S.31‑‑‑Directory in nature‑‑‑Failure to affix public notice‑‑‑Word "shall" used in S.31 of Punjab Pre‑emption Act, 1991, did not carry any penal clause in case of non‑compliance .of the affixation of public notice‑‑‑Non‑affixation of notice would not make the execution and registration of deed void document‑‑‑Where suit for pre‑emption was not filed within four months from the date of registration of the deed, the suit so filed would be barred by time‑‑‑Suit having been filed in‑contravention of law would be liable to be dismissed which right when accrued in favour of vendee, could not be allowed to be taken away because of default of the Officers who were to affix notice, for which the vendee was not at fault.

Maulana Nur‑ul‑Haq alias Ibrahim Khalil 2000 SCMR 1305 and Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134 ref.

(l) Punjab Pre‑emption Act (IX of 1991)‑‑‑

-‑‑‑Ss. 21, 30 & 31‑‑‑Civil Procedure Code (V of 1908), O. VII, Rr. 6 & 11‑‑‑Pre‑emption suit‑‑‑Limitation‑‑‑Rejection of plaint‑‑‑Sale‑deed was executed on 8‑2‑1995 and the suit was filed on 24‑10‑1995‑‑‑Application under O.VII, R.11, C.P.C. was filed on the ground that the suit was filed beyond the period of limitation‑‑‑Trial Court allowed the application and the plaint was rejected‑‑‑Order of Trial Court was upheld in appeal and revision before High Court‑‑‑Contention of the pre‑emptor was that there was no notice of sale as required under S.31 of Punjab Pre‑emption Act, 1991, therefore, plaint could not be rejected without recording of evidence‑‑­Validity‑‑‑Nowhere in the plaint the pre‑emptor had stated that no public notice as required by S.31 of Punjab Pre‑emption Act, 1991, was affixed, therefore, time would run from the date of his knowledge‑‑‑In absence of contrary evidence, official act of affixation of public notice as required by S.31 would be deemed to have been properly and regularly performed within 15 days of the registration‑‑‑Where the suit was barred by time, the order of rejection of the plaint by Trial Court and upheld by higher forums was legal‑‑‑Supreme Court declined to interfere in the orders passed by the Courts below‑‑‑Appeal was dismissed.

(m) Interpretation of statutes‑‑‑

‑‑‑‑Directory and mandatory provisions‑‑‑Distinction‑‑‑Scope and effect‑‑­Statute is understood to be directory when it contains matter merely of direction but not when those directions are followed up by an express provision that in default of following them the acts shall be null and void‑‑‑If the provision is mandatory, disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision.

Ras Tariq Chaudhary, Advocate Supreme Court and Wallayat Umer, Advocate‑on‑Record (absent) for Appellant.

Rana Muhammad Anwar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 23rd November, 2000.

P L D 2001 Supreme Court 514

Present: Muhammad Bashir Jehangiri and Deedar Hussain Shah, JJ

LAND ACQUISITION COLLECTOR, NOWSHERA and others‑‑‑Appellants

versus

SARFARAZ KHAN and others‑‑‑Respondents

Civil Appeals Nos. 1393 and 1496 of 1999, decided on 4th January, 2001.

(On appeal from the judgment dated 15‑8‑1996 of the Peshawar High Court, Peshawar, passed in F.A.O. No.29 of 1996 and Cross Objection No. l of 1998)., (a) Void order‑‑--

Erroneous order‑‑‑Limitation‑‑‑Bar of limitation does not operate in respect of void order but does in respect of erroneous order‑‑‑Question of limitation may not arise in respect of a judgment which is nullity in law, void or ultra vires the statute or the Constitution‑‑‑Where an order is without jurisdiction and void, the same need not even be 'formally set aside.

Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37 and Ch. Altaf Hussain and others v. The Chief Settlement Commissioner PLD 1965 SC 68 ref.

(b) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S. 34 [as substituted by Land Acquisition North‑West Frontier Province (Amendment) Ordinance (V of 1983)]‑‑‑Acquisition of land‑‑‑Awarding of compound interest‑‑‑Void order‑‑‑Limitation against void order‑‑‑Land was acquired and compound interest on compensation was allowed till the amount was paid‑‑‑Validity‑‑‑Such order of grant of compound interest at the specified rate was in clear violation of S.34, Land Acquisition Act, 1894 [as amended by Land Acquisition North‑West Frontier Province (Amendment) Ordinance, 1983], order being nullity in law the, same would not be hit by any‑.bar of limitation‑‑‑Order of award of compound interest was set aside and the same was substituted with the order of award of simple interest from the date of taking over possession of land until the amount has been so paid to the respondents or deposited in the Court‑‑‑Judgment of High Court was set aside.

Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962; Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543 and Muhammad Shafi v. Mushtaque Ahmed through Legal Heirs and others 1996 ,SCMR 856 ref.

M. Younis Khan Tanoli, Advocate‑General, N.‑W.F.P. for Appellants (in CA. No.1393 of 1999).

Respondents in person (in C.A. No. 1393 of 1999).

Appellants in person (in C.A. No. 1396 of 1999).

Muhammad Yunis Khan Tanoli, Advocate‑General, N.‑W.F.P. instructed by Haji M.A. Qayyum Mazhar, Advocate‑on‑Record for Respondents (in C. A. No. 1496 of 1999).

Date of hearing: 4th January, 2001.

P L D 2001 Supreme Court 518

Present: Muhammad Bashir Jehangiri and Nazim Hussain Siddiqui, JJ

QAMAR‑UD‑DIN‑‑‑Petitioner

Versus

MUHAMMAD DIN and others‑‑‑Respondents

Civil Petition No.718 of 2000, decided on 2nd February, 2001.

(On appeal from the judgment/order dated 1‑3‑2000 of the Lahore High Court, Rawalpindi Bench passed in W.P. No. 1726 of 1999).

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

‑‑‑‑O. VI, R.17‑‑‑Pleadings, amendment of‑‑‑Scope‑‑‑Amendment can be allowed at any stage, in such manner and on such terms, which may be equitable and just for contesting parties‑‑‑Reasonable ground, however, has to be shown for exercising jurisdiction under O.VI, R.17, C.P.C.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑--

‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17 & S.35‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Pre‑emption suit‑‑‑Amendment of pleadings for rectification of typing/clerical mistake‑‑‑Date of knowledge of sale was inadvertently written in the plaint whereas the correct date was mentioned in the notice of Talb‑i‑Ishhad‑‑‑Pre‑emptor filed application for correction of the date and the same was allowed by Trial Court against costs‑‑‑Lower Appellate Court in exercise of revisional jurisdiction set aside the said order of Trial Court‑‑‑Order of Lower Appellate Court was assailed in Constitutional petition wherein High Court allowed the amendment but the costs fixed by Trial Court was enhanced from Rs.1,000 to Rs.10,000‑‑­Validity‑‑‑Ex facie the amendment was to rectify the typing/clerical mistake and was rightly allowed by the Trial Court on payment of costs‑‑‑Lower Appellate Court by setting aside the order of Trial Court in exercise of revisional jurisdiction had committed serious illegality of the nature which could have the effect of depriving the legitimate right of a par y‑‑‑Leave to appeal was refused.

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

‑‑‑‑S. 115‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Order passed in revision petition by Appellate Court below assailed in Constitutional petition‑‑‑Validity‑‑‑Merely because revision was decided, the same would not by itself be a bar for aggrieved party to file Constitutional petition in High Court for seeking complete justice‑‑‑Exercise of such jurisdiction de ends solely upon the merits of each case.

Noor Muhammad v, Sarwar Khan and 2 others PLD 1985 SC 131 and ass an Din v. Hafiz Abdus Salam PLD 1991 SC 65 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Malik Ilyas Khan Tamman, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 2nd February, 2001.

P L D 2001 Supreme Court 521

Present: Muhammad Bashir Jehangiri, Nazim Hussain Siddiqui and Rana Bhagwan Das, JJ

Ch. BASHIR AHMAD‑‑Appellant

versus

NAVEED IQBAL and 7 others‑‑‑Respondents

Civil Appeal No. 1428 of 1999, decided on 25th January, 2001.

(On appeal from the order dated 10‑3‑1999 of the Lahore High Court, Lahore, passed in W.P, No.2898 of 1999).

(a) Anti‑Terrorism Act (XXV11 of 1997)‑‑‑

Ss. 6 & 7‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Terrorist act/act of terrorism‑‑‑Leave to appeal was granted by Supreme Court to consider, whether allegations made in the F.I.R constituted "terrorist" as defined by S.6 of Anti‑Terrorism Act, 1997; whether offence allegedly committed by the accused would be punishable under S.7 of Anti‑Terrorism Act. 1997. or under S.302, P.P.C.; whether offences, with which the accused were charged were scheduled offences so as to be tried by Anti­Terrorism Court and what would be the effect of law enunciated by Supreme Court in Mehram Ali v. Federation of Pakistan and others PLD 1998 SC 1445. over the points arising in the case.

Mehram Ali v. Federation of Pakistan and others PLD 1998 SC 1445 ref..

(b) Anti‑Terrorism Act (XXVH of 1997)‑

‑‑‑‑Ss. 6, 7 & 8‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Act of terrorism/terrorist act‑‑‑Death by sprinkling of spirit‑‑‑Occurrence took place within boundary walls of house of victim‑‑‑Case was transferred by Anti-­Terrorism Court to the Court of ordinary jurisdiction‑‑‑High Court refused to interfere with the order of transfer‑‑‑Validity‑‑‑Alleged sprinkling of the spirit on the person ‑of the victim was within the boundary walls of the complainant's house‑‑‑Where the offence committed was not in public, the element of a striking terror or creating sense of fear and insecurity in the people, o: any section of the people was not made discernible in the F.I.R and for that matter on the record of the case as a whole‑‑‑Offences mentioned in the Schedule should have nexus with the object of. the Act and the offences covered by sections 6, 7 and 8 thereof‑‑‑Heinousness of offence did mean that the same qualified to be a terrorist act within the contemplation of S.6, Anti‑Terrorism Act, 1997, or Schedule to the Act.

Mehram Ali v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

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

‑‑‑‑S. 6 & Sched.‑‑=Act of terrorism/terrorist act‑‑‑Scope‑‑‑For the attraction of the provisions of S.6 and the Schedule to Anti‑Terrorism Act, 1997, the element of striking terror or creation of sense of fear and insecurity in the people or any section of the people by doing an act or thing by using bombs, dynamite or other explosive or inflammable substances etc. is a sine qua non.

Obaidur Rehman Lodhi, Advocate Supreme Court instructed by M.A. Zaidi, Advocate‑on‑Record for Appellant.

Javed Aziz Sindhu, Advocate Supreme Court instructed by Akhtar Ali, Advocate‑on‑Record for Respondents Nos. 1 to 6.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 25th January, 2001.

P L D 2001 Supreme Court 526

Present: Munir A. Sheikh and Deedar Hussain Shah, JJ

MUHAMMAD ABDULLAH and others‑‑‑Appellants

versus

ALLAH BAKHSH and others‑‑‑Respondents

Civil Appeal No.904 of 1994, decided on 22nd January, 2001.

(On appeal from the judgment dated 21‑9‑1994 of the Lahore High Court passed in C. R. No. 311‑D of 1993).

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Appeal to Supreme Court‑‑‑Alienation of suit land by limited owner‑‑‑Raising of new plea before Supreme Court at appeal stage‑‑‑Effect‑‑‑Suit land was initially owned by the predecessor‑in‑interest of the parties and after his death, his widow became the limited owner of the same‑‑‑Widow gifted the suit land in favour of the defendants‑‑‑Suit was filed wherein the plaintiffs claimed their share in the suit land‑‑‑Trial Court dismissed ‑the suit and the appeal before Lower Appellate Court was also dismissed‑‑‑High Court in exercise of revisional jurisdiction set aside both the judgments and decreed the suit‑‑‑Defendants for the first time before Supreme Court disputed the ownership rights of the predecessor‑in‑interest of the parties qua the land‑‑‑Validity‑‑‑Such plea of the defendants appeared to be an afterthought and had been raised merely for the sake of creating complication otherwise the same had been accepted by the defendants since 1917‑‑‑Supreme Court at the appellate stage declined to allow the defendants to alter their stand and raise dispute about the ownership rights of the predecessor‑in‑interest qua the entire land which was subject‑matter of the suit by making miscellaneous application for considering documents which were not relevant for the purpose of decision of the appeal‑‑‑Where the land owned by the predecessor‑in‑interest of the parties was not specifically and expressly denied, no dispute or confusion could be raised in that respect‑‑‑Judgment of High Court was not interfered with by Supreme Court in circumstances.

Gul Zarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali Advocate‑on‑Record for Appellants.

Mian Nisar Ahmad, Advocate Supreme Court for Respondents

Date of hearing: 22nd January, 2001

P L D 2001 Supreme Court 531

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

Rana MUHAMMAD ILYAS and others‑‑‑Appellants

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, RAWALPINDI and others‑‑‑Respondents

Civil Appeals Nos.21, 22 and 770 to 780 of 1999, decided on 19th January, 2001.

(On appeal from the judgment dated 4‑11‑1998 of the Lahore High Court, Lahore, passed in I.C.As. Nos.77 and 78 of 1998, Writ Petitions Nos.28387, 16798, 12692, 25486, 27047, 27207, 27656, 25082, 13912 of 1997, I.C.A. No.449 of 1997 and I.C.A. No.500 of 1997).

(a) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)‑‑‑

‑‑‑‑Ss. 10 & 15(2)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Recruitment‑‑‑Board of Intermediate and Secondary Education, jurisdiction of‑‑‑Imposition of ban on recruitment by Provincial Government ‑‑‑Effect‑‑­Leave to appeal was granted by Supreme Court to consider; whether the Provincial Government was empowered to interfere and deprive the Board under S.10 of Punjab Boards ,of Intermediate and Secondary Education Act, 1976, to make appointment of officers of the Board and employ them.

(b) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)‑‑

‑‑‑‑Ss. 10 & 15(2)‑‑‑Recruitment‑‑‑Boards of Intermediate and Secondary Education, jurisdiction of‑‑‑Imposition of ban on recruitment by Provincial Government‑‑‑Effect‑‑‑Provincial Government issued a letter and ban was imposed on recruitment in the Education Department‑‑‑Copy of the letter was addressed to the Chairmen of the Secondary Boards‑‑‑Candidates were denied recruitment on the basis of that letter‑‑‑High Court allowed the Constitutional petition and declared that the ban was not applicable to recruitment in the Boards‑‑‑High Court Appeal was allowed by Division Bench of the High Court‑‑‑Validity‑‑‑Boards being statutory bodies having autonomous status ban in terms of the letter by Provincial Government would not apply to the appointments in the Boards‑‑‑Chairmen of respective Boards had absolute authority to appoint or terminate the services of their employees‑‑‑For determining the scope of the letter, the subject‑matter of the same had to be considered and not the details of the addresses thereof‑‑­Directions issued by the Provincial Government were exclusively applicable to the appointment made in the Provincial Education Department‑‑‑Merely because the letter had been addressed to Chairmen of the Boards, the same would not, ipso facto, apply to the employees of the Boards‑‑‑No explicit direction was issued by the Provincial Government to the Boards qua issuance of appointment letters to the appointees‑‑‑Directive which was applicable to the employees of Provincial Education Department could not be stretched to cover the case of the employees of the Education Boards‑‑‑Judgment of High Court was set aside by Supreme Court in appeal.

Controlling Authority, N.‑W.F.P. Board of Technical Education Peshawar v. Abdul Salam Secretary N.‑W.F.P. Board of Technical Education PLD 1993 SC 200 and Syed Nuzhat Abbad Jaffery v. Government of Sindh 1993 PLC (C.S,) 470 distinguished.

Abdul Shakoor Paracha, Advocate Supreme Court with Ch. Akhtar

Ali, Advocate‑on‑Record for Appellants (in C.As. Nos. 21 and 22 of 1999).

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent BI&SE.

Ch. Mushtaq Masood, Advocate Supreme Court with Sh. Masood Akhtar, Advocate‑on‑Record for Appellants (in C.A. No.770 of 1999), M. Zaman Bhatti, Advocate Supreme Court for Respondent No. 1.

Dr. Qazi M. Mohyuddin, Advocate Supreme, Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Respondent No. 2.

Hafiz Tariq Nasim, Advocate Supreme Court with Muhammad Aslam Ch., Advocate‑on‑Record (absent) for Appellants (in C.As. Nos.771 to 780 of 1999).

M. Zaman Bhatti, Advocate Supreme Court for Respondent No. 1.

Sh. Maqbool ‑Ahmed, Advocate Supreme Court for Respondents Nos. 2 and 4.

Date of hearing: 17th January, 2001.

P L D 2001 Supreme Court 536

Present: Abdur Rehman Khan and Tanvir Ahmed Khan, JJ

THE STATE‑‑‑Appellant

versus

ASIF ALI and another‑‑‑Respondents

Criminal Appeal No.553 of 1995, decided on 29th January, 2001.

(On appeal from the judgment dated 4‑5‑1995 of the High Court of Sindh at Karachi in Criminal Application No. 1403 of 1993).

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑SS.10(2)(a)/89/I56(I)(8)/80‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to the complainant to examine as to whether High Court was justified within bounds of law to quash the proceedings without allowing the Trial Court 'to exercise jurisdiction under S.265‑K, Cr.P.C. towards the same; whether it was a fit case for quashment of proceedings and whether High Court could allow partial quashment‑‑‑Delay of 37 days in filing the petition was condoned as the criminal matter involved important point of law.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 164(2)(a)/89/156(1)(8)/80‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Quashing of proceedings by High Court‑‑‑Validity‑‑‑High Court could not possibly resolve the divergent controversy in exercise of its power under‑S.561‑A, Cr.P.C. without any evidence ors record which was still to be examined by the Trial Court‑‑‑Trial admittedly was going on when the impugned order was passed‑‑‑Powers under S.561‑A, Cr.P.C. were not meant to stifle the prosecution case, but instead prosecution was to be allowed opportunity to prove the same‑‑‑Case was not of the type in which controversy could be resolved from the facts patent on record and admitted by both the sides to exist as in such a case the dispute could be determined on admitted facts and if no offence was constituted on the facts appearing on record and not disputed by the parties, then powers under S.561‑A, Cr.P.C. could be exercised‑‑‑High Court in the case in hand had passed the impugned order quashing the proceedings in haste and at a time when the parties were still to prove the correctness of their version‑‑‑Impugned order was consequently set aside and the case was remanded to Trial Court with the direction to proceed with the trial of accused according to law.

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

‑‑‑‑S. 561‑A‑‑‑Inherent powers of High Court‑‑‑Scope‑‑‑Powers under S.561‑A, Cr.P.C. are not meant to stifle the prosecution case, but instead prosecution is to be allowed opportunity to prove it.

Tanveer Bashir Ansari, Dy. A.‑G., Punjab for Appellant.

Gul Zaman Khan, Advocate Supreme Court for .Respondents Nos.1 and 2.

Date of hearing: 29th January, 2001.

P L D 2001 Supreme Court 540

Present: Mian Muhammad Ajmal, Javed Iqbal and Abdul Hameed Dogar, JJ

SHER MUHAMMAD and 2 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 195 of 1995, decided on 7th February, 2001.

(On appeal from the judgment dated 11‑4‑1993 of the Lahore High Court, Lahore passed in Criminal Appeal No.302 of 1988 and Criminal Appeal No.25‑Jail of 1989).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 364‑A/34‑‑‑Appraisal of evidence‑‑‑Motive for the occurrence stood corroborated by the' statements of prosecution witnesses including the complainant and the extra‑judicial confessions made by the accused‑‑‑Prosecution witnesses were not only disinterested, but were independent and had no animosity against the accused‑‑‑Accused had no particular defence to put forth in their favour and they had taken different stands at the trial‑‑‑Evidence of incriminating recoveries, positive Expert's reports and medical evidence had also supported the prosecution version‑‑‑Accused had killed a minor innocent boy in a brutal, callous and cruel manner and they did not deserve any leniency even in the sentences‑‑‑Convictions and sentences of accsued were upheld in circumstances.

Syed Zia Hussain Kazmi, Advocate Supreme Court for Appellants.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 7th February, 2001.

P L D 2001 Supreme Court 546

Present: Rashid Aziz Khan, Rana Bhagwan Das and Javed Iqbal, JJ

SOHAIL ABBAS and others‑‑‑Petitioners

versus

KASHIF and others‑‑‑Respondents

Criminal Petitions Nos.94‑K and 95‑K of 1999 and Jail Petition No. 133 of 2000, decided on 26th February, 2001.

(On appeal from the judgment/order dated 23‑10‑1999 passed by High Court of Sindh, Karachi in Criminal Appeals No. 105 and 110 of 1999).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 397‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Appeal against acquittal‑‑‑Benefit of doubt‑‑‑Accused were not known to the witnesses and no identification parade was held in the case and they, in the absence of any other evidence, could not possibly be connected with the alleged occurrence‑‑‑Witnesses in their statements under S.161, Cr.P.C. had not mentioned the features of the accused or any other description like height and weight‑‑Identification of the accused by the witnesses in the Court after about two years in the absence of any identification parade was of no importance‑‑‑Accused, in circumstances, had rightly been extended benefit of doubt by the High Court‑‑‑Leave to appeal was refused by Supreme Court to the complainant accordingly.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 302 & 397‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Accused was apprehended at the spot and identified there‑‑‑Witnesses had implicated the accused in the case asserting to have apprehended him at the scene of occurrence‑‑‑Accused being a stranger to the complainant side, his false involvement due to enmity could not be alleged‑‑‑Fatal shot had been ~ fired by co‑accused‑‑‑Accused was not attributed any overt act qua the deceased‑‑‑Conviction and sentence of imprisonment for life of accused were upheld in circumstances‑‑‑Leave to appeal was declined to accused accordingly.

Nuruddin Sarki, Advocate Supreme Court for Appellants (in Criminal Petitions Nos.94‑K and 95‑K of 1999).

Nemo for Respondents. Nemo for the State.

Date of hearing: 26th February, 2001

P L D 2001 Supreme Court 549

Present: Abdur Rehman Khan and Abdul Hameed Dogar, JJ

Ex. Lt.‑Col. ANWAR AZIZ (PA‑7122)‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Rawalpindi and 2 others‑‑‑Respondents

Civil Petition No. 1177 of 1999, decided on 24th January, 2001.

(On appeal from the judgment dated 8‑6‑1999 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No. 1150 of 1995).

(a) Pakistan Army Act (XXXIX of 1952)‑‑‑

‑‑‑‑S. 133(3)(8)‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑­Constitutional petition under Art. 184(3) of the Constitution before Supreme Court‑‑‑Conviction by Field General Court Martial‑‑‑Question of public importance‑‑‑Supreme Court, jurisdiction of‑‑‑Petitioner was member of Armed Forces, and was convicted by Field General Court Martial‑‑­Conviction was assailed before Supreme Court on the ground that the matter was of public importance‑‑‑Validity‑‑‑Petitioner had accepted the jurisdiction of Army Court and the conviction was neither mala fide nor coram non judice nor without jurisdiction‑‑‑Petitioner, a member of Armed Forces having been rightly tried, convicted and sentenced by properly constituted forums under Pakistan Army Act, 1952, his case did not attract the question of public importance‑‑‑Decision of Field General Court Martial, under the provisions of S.133(3)(B) of Pakistan Army Act, 1952 was final and could not be,, called in question before any Court or Authority‑‑­Case not being of public importance, Supreme Court declined td interfere with the decision of Field General Court Martial‑‑‑Leave to appeal was refused.

Mrs. Shahida Zaheer Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632 distinguished.

Momeen Khan and another v. Supreme Appellate Court, Peshawar and 5 'others PLD 1995 SC 509 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 184(3)‑‑‑Constitutional petition under Art. 184(3) of the' Constitution‑‑‑Fundamental Rights, enforcement of‑‑‑Jurisdiction of Supreme Court‑‑‑Scope‑‑‑Supreme Court can exercise its powers to issue the writ only when element of 'public importance' is involved‑‑‑Provisions of Art.184(3) of the Constitution provide abundant scope for enforcement of Fundamental Rights of individuals or a class of persons in the event of their violation‑‑­ Supreme Court can interfere only in extraordinary cases involving question of jurisdictional defect when proceedings before that forum become coram non judice or mala fide‑‑‑Cases must be such as give rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who was the subject‑matter of the case, might be of no particular consequence.

Miss Benazir Bhutto .v. Federation of Pakistan and another PLD 1988 SC 416 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199(3) & 8(3)‑‑‑Pakistan Army Act (XXXI of 1952), S.1‑‑­Constitutional petition under Art.199 of the Constitution‑‑‑Matters relating to members of Armed Forces‑‑‑Jurisdiction of High Court‑‑‑Scope‑ ‑Where matter was related to terms and conditions of service or in respect of any action taken in relation to members of Armed Forces or a person subject to Pakistan Army Act, 1952, jurisdiction of High Court, in such a case, was barred by Art.199(3) of the Constitution‑‑‑Article 8(3) of the Constitution envisaged that provisions of Art. 199(3) of the Constitution shall not apply to any law relating to members of Armed Forces, or of the Police or of such other forces‑ as are charged with the maintenance of public order, with a view to keep maintenance of discipline among them and also for the purpose of ensuring proper discharge of their duties.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199(3)‑‑‑Jurisdiction of High Court under Art.199(3) of the Constitution‑‑‑Scope‑‑‑Where order/judgment, is mala fide, or without jurisdiction or coram non judice, High Court under the, provisions of Art. 199(3) of the Constitution can examine the same.

(e) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 184(3)‑‑‑Expression 'matter of great public importance' occurring in Art.184(3) of the Constitution‑‑‑Connotation‑‑‑In all systems of law which cherish individual, freedom and liberty, and which provide Constitutional safeguards and guarantees, any invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and availability of such safeguards, must be regarded as a matter of "great public importance".

Muhammad Akram, Advocate Supreme Court with Ch. Akhter Ali, Advocate‑on‑Record for Petitioner.

Mansoor Ahmad, D.A.‑G. with Mehr Khan Malik, Advocate‑on­-Record for Respondents Nos. 2 and 3.

Date of hearing: 24th January, 2001.

P L D 2001 Supreme Court 555

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Deedar Iyussain Shah, JJ

SUI SOUTHERN GAS COMPANY LTD. ‑‑‑Petitioner

versus

Engr. NARAINDAS and others.‑‑Respondents

Civil Review Petitions Nos. 79 to 221 of 2001 in Civil Appeals Nos.96 to 238 of 2001, decided on 30th March, 2001.

(On review from the judgment of this Court dated 2‑2‑2001, passed in Civil Appeals Nos.96 of 2001 to 238 of 2001), (a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, 0. XXVI, R. 1‑‑‑Review of Supreme Court judgment‑‑‑Scope‑Review petition is sustainable where a glaring omission or patent mistake has crept in the judgment under review on account of judicial fallibility‑‑‑Where error in any decision floats on the surface and/or is manifest on the face of the record, which is so material that had the same been noticed prior to the rendering thereof, the conclusion would have been different, petition for review would be maintainable.

(b) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Appeal‑ Scope‑‑­Factum of the rules of service of appellant being statutory or non‑statutory would not debar the Service Tribunal to enforce the same as that point would be relevant in cases of exercise of writ jurisdiction because there the violation of statutory rules would be prerequisite for issuance of writ.

(c) Service Tribunals Act (LXX of 1973)‑‑

‑‑‑‑Ss. 2‑A & 5‑‑‑If the services of any person covered by S.2‑A, Service Tribunals Act, 1973 were wrongly/illegally terminated, his grievance could be appropriately remedied by the appropriate Service Tribunal under S.5, Service Tribunals Act, 1973.

(d) Master and servant‑‑‑

‑‑‑‑ Rule of‑‑‑Concept‑‑‑Rule of master and servant is a common law concept which falls in the realm of contract.

(e) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 4 & 5‑‑‑Termination of service‑‑‑Appeal‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Rule of master and servant being a common law concept which fell in the realm of contract, it was wrong to contend that on the theory of master and servant relationship the Service Tribunal was not authorised to reinstate an employee whose services had been illegally terminated.

(f) Civil service‑‑‑

‑‑‑‑ Termination of service‑‑‑Employer, after having elected to apply the constraints of contract/temporary assignment against the employees, could not make a U‑turn by placing reliance on the Service Rules of the establishment.

(g) Civil service‑‑‑

‑‑‑‑Retrenchment‑‑‑Scope‑‑‑Termination of services of the employees was not only found wrongful/illegal but also discriminatory qua another particular section of the employees belonging to a particular region‑‑‑Employer having also advertised vacancies in the Press, case of employer, therefore, was not that of retrenchment with the result that employer could ill‑afford to rely on its alleged impecunious circumstances in that behalf.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, O. XXVI, R. 1‑‑‑Review of Supreme Court judgment‑‑‑Scope‑‑‑Petitioner for review could not be allowed to re‑argue the case in the garb of review petition‑‑‑Judgment sought to be reviewed did not call for review on any ground whatsoever‑‑­Nothing had been overlooked by the Supreme Court nor the Court had failed to consider any important aspect of the matter while rendering the judgment under review‑‑‑Review jurisdiction of Supreme Court could not be invoked as a matter of routine to re‑hear a case which had already been decided.

(i) Supreme Court Rules, 1980‑‑‑

‑‑‑‑0. XXVI, R.7‑‑‑Constitution of Pakistan (1973), Art.188‑‑‑Review of Supreme Court judgment‑‑‑Payment of cash security to the opposite‑party‑‑­Principles ‑‑‑If a review is contested by the opposite‑party and dismissed, the cash security of Rs.10,000 was to be paid to the opposite‑party.

(j) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212‑‑‑Termination of service‑‑‑Supreme Court had ordered the employer to absorb the terminated employees in their respective disciplines on the same lines as had been done in another case decided by the Supreme Court reported as The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176‑‑‑Counsel of the employees stated before the Supreme Court that notwithstanding the clear directions made in the judgment by the Supreme Court, the employer had not absorbed the employees so far‑‑‑Supreme Court directed the employer to ensure that the order passed by the Court was implemented in letter and spirit within one .week from the date of receipt of copy of this judgment, failing which the employer would expose itself to punitive action in accordance with law.

The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Lt.‑Col. Farzand Ali v. Province of West Pakistan 1980 SCMR 909; Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another PLD 1990 SC 787; Chairman, WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 346; Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Zarghun Shah v. Surgeon‑General and another 1997 PLC (C.S.) 4; Muhammad Ali v. Secretary, Ministry of Foreign Affairs, Islamabad and another 1997 PLC (C.S.) 6; The Secretary Government of the Punjab through Secretary, Health Department, Lahore and others v. Riaz‑ul‑Haq 1997 SCMR 1552; Obaidullah and another v. Habibullah and others PLD 1997 SC 835; Habib Bank Limited and others v. Syed Zia‑ul‑Hassan Kazmi 1998 SCMR 60; Agha. Salim Khurshid and another v. Federation of Pakistan and others 1998 PLC (C.S.) 1345; United Bank Limited through President v. Shahmim Ahmed Khan and 41 others 1999 PLC (C.S.) 1032; Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others 1999 PLC (C.S.) 1208; Inam Ali Bhutto and others v. Sui Southern Gas Company Limited and others 2000 PLC (C.S.) 459; United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612; Abdul Jabbar v. Sui Southern Gas Company Ltd. C.Ps. Nos.391‑K to 456‑K of 1999; Muhammad Tariq Pirzada v. Federation Of Pakistan 1999 SCMR 2189; Abdul Ghaffar‑Abdul Rehman v. Asghar Ali PLD 1998 SC 363; Chandra Kumar v. Union of India (1997) 3 SCC 261; Gunton v. London Borough of Richmond upon Thames (1980) 3 All ELR 577; R v. Civil Service Appeal,Board. EX Parte Bruce (19E8) 3 All ELR 686 ref.

Fakhruddin G.. Ebrahim, Senior Advocate Supreme Court with Barrister Ch. M. Jamil, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioner.

Wasim Sajjad, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate‑on‑Record for Respondents.

Muhammad Akram Sh., Senior Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Respondents (in C.R.Ps. Nos.80 to 111 of 2001 and 136 to' 1'74 of 2001).

Date of hearing: 29th March, 2001.

P L D 2001 Supreme Court 568

Present: Muhammad Bashir Jehangiri, Sh. Riaz Ahmed, Munir A. Sheikh, Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhary, Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

ASIF ALI ZARDARI and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 102, of 1999 with Criminal Miscellaneous Applications Nos. 123, 124, 137 of 1999, Criminal Miscellaneous Applications Nos.58, 64, 70 of 2001 and Criminal Application No. 127 of 1999 with Cr1.M.A. Nil of 1999, Crl. M.A Nil of 1999, Cr1.M.A. Nos.49, 50, 59, 68, 69 of 2001, Crl. P. No.75 of 1999, C.P. No.619‑K of 1998, C.P. No.623‑K of 1998, decided on 6th April, 2001.

(On Appeal from the judgment dated 15‑4‑1999 of the Ehtesab Bench of Lahore High Court, Rawalpindi Bench, passed in Ehtesab Reference No.30 of 1998).

(a) Bias in a Judge‑‑

‑‑‑‑ Description, test and kinds of bias‑‑‑Accused having right of a fair trial by a judicial minded person, not functioning under an influence which might paralyse his judicial faculties as to result in absence of a fair trial‑‑‑Bias would vitiate judicial proceedings if such circumstances were created or brought about by the Judge as would rob him of the confidence that a litigant may have in the Judge‑‑‑Principles.

"Bias" is synonymous with "partiality", and has strictly to be distinguished from "prejudice". Under particular circumstances, bias has been described as a condition of mind; and has been held to refer, not to views entertained regarding a particular subject‑matter, but to the mental attitude or disposition toward a particular person and to cover all varieties of, personal hostility or prejudice against him.

Not only is a person affected by an administrative decision entitled to have his case heard by the agency seized with its determination, but he may also insist on his case being heard by a fair Judge, one free from bias. Bias in this context has usually meant that the adjudicator must have no financial interest in the matter under dispute, but it is not necessarily so limited and allegations of bias have been upheld in circumstances where there was no question of any financial interest.

A Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends.

A Judge must refuse to deal with any case in which he has a connection with one party or its lawyer more than the other, or even with both parties and their lawyers.

To ensure that justice is not only done, but is also seen to be done, a Judge must avoid all possibility of his opinion or action in any case being swayed by any consideration of personal advantage, 'either direct or indirect.

There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and 'confidence is destroyed when right‑minded people go .away thinking: "The judge was biased".

The accused has a right of a fair trial, by a judicial minded person, not functioning under an influence which might paralyse his judicial faculties as to result in absence of ,a fair trial. Bias may be caused by a judgment, order or observation of a superior Court or it may spring from personal, political, religious, communal, racial, commercial or economic considerations. Bias would vitiate judicial proceedings if such circumstances are created or brought about by the Judge as would rob him of the confidence that a litigant may have in the Judge.

No Judge can be a Judge in his own cause, or in a case in which .he is personally interested, not because his decision must invariably be in his own favour but on the principle that justice must not only be done but seen to be done and however right the Judge deciding a cause in his own favour may be, neither the public nor the aggrieved party will be satisfied with the adjudication and its result will be vacated by the Court of Appeal at the instance of the dissatisfied party.

The consideration of bias is a branch of the principles of natural justice. It is now agreed on all hands that there are certain broad principles of natural justice deducible from two Latin Maxims firstly, "Nemo debet esse judex in propria sua causa" which formed the foundation of the doctrine firstly, that no one .can be Judge in his own cause which, in a wide application, means that a judicial or quasi judicial authority not only himself not be a party but must also not be interested as a party in the subject‑matter of the dispute which he has to decide and; second principle is 'Audi alteram partem' (hear the other side)..

Bias is said to .be of three different kinds:

(a) A Judge may have a bias in the subject‑matter which means that he. is himself a party or has direct connection with the litigation, so as to constitute a legal interest.

A 'legal interest' means that the Judge is 'in such a position that a bias must be assumed'.

(b) Pecuniary interest in the cause, however slight, will disqualify the Judge, even though it is not proved that the decision has in fact been affected by reason of such interest. For this reason, where a person having such interest sits as one of the Judges, the decision is vitiated.

(c) A Judge may have a personal bias towards a party owing to relationship and tire like or he may be personally hostile to a party as a result of events happening either before or during the trial. Whenever there is any allegation of personal bias, the question which should be satisfied is ‑‑ "Is there in the mind of the litigant a reasonable apprehension that he would not get a fair trial?" The test is whether there is a 'real likelihood of prejudicial, but it does not require certainty.' 'Real likelihood' is the apprehension of a reasonable man apprised of the facts and not the suspicion of fools or capricious persons.

No doubt, the Judges of the superior Courts are blessed with a judicial conscience but question nonetheless is whether a particular Judge of the Subordinate or the Superior Judiciary against whom the allegation of bias is alleged is possessed of judicial conscience. This litmus test is indeed very difficult but certainly not impossible. The circumstances of a particular case wherein bias of a Judge is alleged would themselves speak volumes for the same. In other words, the principle is well‑settled that a Judge of the superior Court is a keeper of his own conscience .and it is for him to decide to hear or not to hear a matter before him. However, in the present case Supreme Court declined to adhere to the said settled principle because bias is floating on the surface of the record.

A Judge having ‑ pecuniary or prorprietary interest or any other personal interest in the subject‑matter of a case before him cannot hear the case.

Mohtarma Benazir Bhutto, Leader of the Opposition, Bilawal House, Clifton, Karachi and another v. The State through Chief Ehtesab Commissioner, Islamabad 1999 SCMR 759; Mohtarma Benazir Bhutto v. The State PLD 1999 SC 937; Benazir Bhutto v. The State Criminal Appeals ‑Nos.62 and 63 of 1999; Mohtarma Benazir Bhutto v. The State, Criminal Petition No.208 of 1998; Mohtarma Benazir Bhutto, M.N.A. and another v. The State PLD 2000 SC 795; Shahadat Khan and another v. Home Secretary to the Government of West Pakistan and others PLD 1969 SC 158 and Machia and 2 others v. The State PLD 1976 SC 695; Ms. Benazir Bhutto v. President of Pakistan and another 1992 SCMR 140; Corpus Juris Secundum, Vol. X; pp. 354, 355; Administrative Law by Garner, 4th Edn., p.122; Metropolitan Properties Co. (FGC) .Ltd. v. Lannon and others (1968) 3 All ER 304; Code of Conduct framed by the Supreme Judicial Council under Article 128 (4) of the erstwhile Constitution of Pakistan, 1962 for the Judges of the Supreme Court and the High Courts in Pakistan; Anwar and another v. The Crown PLD 1955 PC 185 and Khairdi Khan v. Crown PLD 1953 FC 223 ref.

(b) Ehtesab Act (IX of 1997)‑‑‑

‑‑‑‑Ss. 3, 4(2), 15, 2(f), 9 & 10‑‑‑Constitution of Pakistan (1973), Art. 185‑‑?Appeal to Supreme Court‑‑‑Conviction for corrupt and corrupt practices‑‑?Allegation of bias in Judge by the convicts‑‑‑Supreme Court by highlighting sufficient material on record which substantiated the allegation of bias found that trial of convicts was not fair on account of bias and accepted the appeals of convicts and set aside the sentences awarded to them and remitted the case to the Court of competent jurisdiction for trial afresh in accordance with law.

Mohtarma Benazir Bhutto, Leader of the Opposition, Bilawal House, Clifton, Karachi and another v. The State through Chief Ehtesab Commissioner, Islamabad 1999 SCMR 759; Mohtarma Benazir Bhutto v The State PLD 1999 SC 937; Benazir Bhutto v. The State Criminal Appeals Nos.62 and 63 of 1999; Mohtarma Benazir Bhutto v. The State Criminal Petition No.208 of 1:998; Mohtarma Benazir Bhutto, M.N.A. and another v. The State PLD 2000 SC 795; Shahadat Khan and another v. Home Secretary to the Government of West Pakistan and others PLD 1969 SC 158 and Machia and 2 others v.. The State PLD 1976 SC 695; Ms. Benazir Bhutto v. President of Pakistan and another 1992 SCMR 140; Corpus Juris Secundum, Vol. X, pp. 354, 355; Administrative Law by Garner, 4th Edn., p.122; Metropolitan Properties Co. ‑(FGC) Ltd. v. Lannon and others (1968) 3 All ER 304; Code of Conduct framed by the Supreme Judicial Council under Article 128 (4) of the erstwhile Constitution of Pakistan, 1962 for the Judges of the Supreme Court and the High Courts in Pakistan; Anwar and another v. The Crown PLD 1955 PC 185 and Khairdi Khan v. Crown PLD 1953 PC 223 ref.

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

‑‑‑‑S. 342‑‑‑Object of S.342, Cr.P.C.

(d) Maxim‑‑

Nemo debet esse judex in propria sua causa"‑‑‑Connotation.

(e) Maxim‑

‑‑‑‑‑‑ Audi alteram partent"‑‑‑Applicability.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Farooq H. Naek, Senior Advocate Supreme Court instructed by Raja Abdul Ghafoor, Advocate‑on‑Record for Appellant (in Crl.A. No. 102 of 1999).

S.M. Zafar, Senior Advocate Supreme Court, Ali Sabtain Fazli, Advocate Supreme Court, Ali Zafar, Advocate Supreme Court and Ch. Fazal‑i‑Hussain, Advocate‑on‑Record for the State (in Cr1.A. No.102 of 1999).

Raja Muhammad Anwar, Senior Advocate Supreme Court, Sardar Muhammad Latif Khosa, Senior Advocate Supreme Court and Ch. Aitzaz Ahsan, Senior Advocate Supreme Court for Appellants (in Crl. A. No. 127 of 2000).

Barrister M. Zahoorul Haq, Advocate Supreme Court, Ali Sabtain Fazli, Advocate Supreme Court and Ch. Fazal‑i‑Hussain, Advocate‑on-?Record for the State (in Crl.A. No. 127 of 1999).

Aziz A. Munshi, Attorney‑General for Pakistan as Law Officer of the Court under Constitution assisted by Sher Zaman Khan, Deputy Attorney‑General, Tanvir Bashir Ansari, Deputy Attorney‑General instructed by Ch. Fazal‑e‑Hussain; Advocate‑on‑Record for the Federation of Pakistan (in both Criminal Appeals).

Dates of hearing: 26th, 27th, 28th February; 1st, 2nd, 12th to 16th, 19th to 22nd, 26th to 30th March; 2nd and 3rd April, 2001.

P L D 2001 Supreme Court 600

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhanunad Farooq, JJ

THE COLLECTOR OF SALES TAX and others‑‑‑Appellants

versus

SUPERIOR TEXTILE MILLS LTD. and others‑‑‑Respondents

Civil Appeals No. 1094 to 1303 and 1328 to 1343 of 2000, decided on 29th January, 2001.

(On appeal from the judgments, dated 22‑11‑1999 passed in W.Ps. Nos.20602 and 20689 of 1999, 9‑2‑2000 passed in W. Ps. Nos. 1662, 1663, 1664, 1665 and 1666/2000, 10‑3‑2000 passed in W.P. No,3276/2000, 21-3-2000 passed in W.P. No. 4587/2000, 18-2-2000 passed in W.P. 1458/2000, 10-4-2000 passed in W.Ps. Nos.22721/99, 21610/99, 158/2000, 26542/97, 24305/97, 21723/97, 21724/97, 24942/97, 24-5-2000 passed in W. P. No.837/2000, 14-6-2000 passed in. W. Ps. Nos. 10222 and 10223/2000 and 5-6-2000 passed in W.P. 23859/99).

(a) Special Procedure for Ginning Industry Rules, 1996---

----Rr.5 & 6---Sales Tax Act (VII of 1990), S.3(3-A) ---Recovery of sales tax---Leave to appeal was granted by Supreme Court to consider whether Rr.5 & 6 of Special Procedure for Ginning Industry Rules, 1996, were ultra vires the Sales Tax Act, 1990.

(b) Special Procedure for Ginning Industry Rules, 1996---

----Rr.5 & 6---Sales Tax Act (VII of 1990), Ss.3(3) & 71(1)---Notification No.SRO 118(1)/2000, dated 13-3-2000---Sales tax-, recovery of---Shifting the liability to pay the tax ---Vires of Rr.5 & 6 of Special Procedure for Ginning Industry Rules, 1996---High Court in exercise of Constitutional jurisdiction, declared Rr. 5 & 6 of Special Procedure for Ginning Industry Rules, 1996 as ultra vires to the Sales Tax Act, 1990---Validity---Provisions of S.3(3) of Sales Tax Act, 1990 and R.6 of Special Procedure for Ginning Industry Rules, 1996, made it manifest that R. 6 was. not only substantive in nature but was also violative of S.3(3) of Sales Tax Act, 1990, as the same had squarely shifted the liability to pay sales tax from the person making the supply i.e. the ginner to the person receiving the supply---Provisions of R. 6 of Special Procedure for Ginning Industry Rules, 1996 could not take the place of S.3(3) of the Sales Tax Act inasmuch as no deviation could be made from the substantive provisions in exercise of powers conferred by S.71(1) of Sales Tax Act, 1990---In the event of conflict between the rule and a substantive provision of the parent Act the former was void or inapplicable to the extent of inconsistency---Notification NO.SR0.118(1)/2000, dated 13-3-2000 had regenerated Rr.5 & 6 of Special Procedure for Ginning Industry Rules, 1996, by bringing them in line with the substantive provisions of Sales Tax Act, 1990, therefore, in order to ward off confusion and further litigation Supreme Court substituted the expression 'ultra vires' as used by the High Court by the expression 'inapplicable'--­Provisions of Rr.5 & 6 _ of Special Procedure for Ginning Industry Rules, 1996, were inapplicable to the case of the respondents in circumstances.

1999 SCMR 526 and Aruj Textile Mills Limited v. Federation of Pakistan through Secretary, Ministry of Finance, Federal Secretariat, Islamabad and 2 others 1998 PTD 3855 ref.

Izharul Haq, Advocate Supreme Court for Appellants (in C.As Nos. 1094, 1095, 1342 and 1343 of 2000).

Mansoor Ahmed, Deputy Attorney-General for the Federation (in All Appeals).

Ali Sibtain Fazli, Advocate Supreme Court for Respondent No.1 (in C. As. Nos. 1094 and 1095 of 2000).

K. M. Virk, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in C.As. Nos. 1096 to 1103, 1328 to 1341 of 2000).

M. Siddique Mughal, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record for Respondent (in C.A. No. 1101 of 2000).

Ali Sibtain Fazli, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record for Respondents (C. As. Nos. 1103, 1339 and 1340 of 2000).

Nemo for the Remaining Respondents.

Date of hearing: 24th January, 2001.

PLD 2001 Supreme Court 607

Present: Irshad Hasan Khan, CJ.

Muhammad Bashir Jehangiri, Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

KHAN ASFANDYAR WALI and others---Petitioners

versus????????????

FEDERATION OF PAKISTAN through Cabinet Division, Islamabad and others---Respondents

Constitutional Petitions Nos. 13, 10, 27, 15, 16, 17, 28, 24, 26, O1, 14,19, 20, 32 and 33 of 2000 decided on 24th April, 2001.

(a) Constitution of Pakistan (1973)---

----Art.184(3)---National Accountability Bureau Ordinance (XVIII of 1999), Preamble---Constitutional petition under. Art.184(3) of the Constitution before Supreme Court--- Maintainability ---Vires of National Accountability Bureau Ordinance, 1999--- Constitutional petitions were admitted for hearing as questions raised therein ,(detailed below) were matters of first impression and of great public importance involving Fundamental Rights, as ordained by Art.184(3 , of the Constitution and there was another circumstance that Supreme Court had commented upon in the case of S Yed Zafar Ali Shah and others v General Pervez Mussharaf, Chief Executive of Pakistan and others reported as PLB 2000 SC 869 that "the validity of National Accountability Bureau Ordinance, 1999 will be examined separately in appropriate proceedings at appropriate stage."

Following are the common points emerging from the Constitutional petitions for consideration of the Court:

"(i) Whether the impugned Ordinance creates a parallel judicial system in disregard of the provisions of Articles 175, 202 and 203 of the Constitution and is violative of the law laid down by this Court in the case of

Mehram Ali and others v. Federation and others (PLD 1998 SC 1445)?

(ii) Whether section 2 of the impugned Ordinance whereby it deems to have come into force with effect from 1-1-1985 being retrospective contravenes the Fundamental .Right enshrined in _ Article 12 of the Constitution insofar as it creates a new offence of 'wilful default' with retrospective effect?

(iii) Whether section 5(r) of the impugned Ordinance which defines `wilful default' negates the. freedom of trade, business or profession as contemplated by Article .18 of the Constitution, which guarantees that subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business?

(iv) Whether the power vesting in the Chairman, National Accountability Bureau or the Court trying a person for any offence under the impugned Ordinance vide clause (a) of section 12 .and by providing in clause (c)(iv) thereof that any such order shall remain in force for a period of up to thirty days. is an unreasonable restraint and violative of Articles 4, 9, 23 and 24 of the Constitution?

(v) Whether clause (d) of section 14 of the impugned Ordinance whereby the burden of proof in respect of an offence under section 9(a)(vi) .and (vii) has been-placed on the accused and his conviction has been conferred validity, is violative of Articles 4 and 25 of the Constitution?

(vi) Whether section 16(d) of the impugned Ordinance which authorises the Chairman, National Accountability Bureau to select the venue of the trial by filing a reference before any Accountability Court established anywhere in Pakistan, suffers from excessive delegation?

(vii) Whether section 17 (c) the impugned Ordinance which enables the Accountability Court to dispense with any provision of the Code of Criminal Procedure, 1898, and follow such procedure as it may deem fit in the circumstances of the case, is violative of Articles 4 and 25 of the Constitution?

(viii) Whether section 18 of the impugned Ordinance which prohibits the Accountability Court to take cognizance of any offence under the impugned Ordinance except on a reference made by Chairman, National Accountability Bureau or an officer of the National Accountability Bureau duly authorised by him, amounts to excessive delegation?

(ix) Whether section 24(d) of the impugned Ordinance which empowers the Chairman, . National Accountability Bureau to detain in his custody an accused person up to a period of ninety days after having produced him once before the Accountability Court, such power vesting in executive authority is contrary to the right of equal protection and also opposed to the spirit of Fundamental Rights contained in clause (2) of Article 10 of the Constitution?

(x) Whether section 23 of the Ordinance insofar as it prohibits transfer of any right, title, interest or creation of charge on property after the Chairman, National Accountability Bureau has initiated investigation into the offences under the impugned Ordinance, alleged to have been committee by an accused person, is violative of Articles,23 and 24 of the Constitution"

(xi) Whether section 24(a) of the impugned Ordinance empowering the Chairman, National Accountability Bureau at any stage of the investigation under the impugned Ordinance to direct that the accused, if not' already arrested, shall be arrested, tantamounts to conferment of unbridled and unfettered powers of determining if an accused is to be arrested or not, is violative of Article 25 of the Constitution???????????

(xii) Whether insofar as section 24(c) of the impugned Ordinance enjoins that the provision of clause (a) thereof shall also apply to cases which have already been referred to the .Accountability Court, offends against the provisions of Articles 4 and 25 of the Constitution on the ground of retrospectivity in its operation?

(xiii) Whether the case of voluntary return (plea of bargaining) under section 25 of the impugned Ordinance is derogatory to the concept of independence of judiciary insofar as where the trial has commenced the Court cannot release the accused without consent' of the Chairman, National Accountability Bureau?

(xiv) Whether section 25A (e) and (g) giving unfettered discretion to the Chairman, National Accountability Bureau to reject the recommendations of a duly appointed committee and to refuse to recognise a settlement arrived at. between a creditor and a debtor, amounts to excessive delegation and restraint on the freedom of contract on the touchstone of Articles'4, 18 and 25 of the Constitution?

(xv) Whether section 32(d) of the impugned Ordinance purports to oust the jurisdiction of the superior Courts from exercising their jurisdiction under Article 184(3) and Article 199 of the Constitution?

(xvi) Whether various provisions of the impugned Ordinance grant arbitrary and unfettered discretion to the Chairman, National Accountability Bureau e.g.---

(i) under section 9(c) of the impugned Ordinance to set whatever conditions he feels with respect to. the release of an accused from custody, (ii) under section 18(g) to refer or not to refer a case to an Accountability Court, JMM

(iii) under section 25A(g) to refuse to recognise a settlement arrived at between a creditor and debtor

(xvii) Whether to exclude the officers and staff of the National Accountability Bureau who have not been deputed or posted to National Accountability Bureau from the Federation or a Province, from the category of civil servants within the purview of section 2(b) of the Civil. Servants Act, 1973, is violative of Article 25 of the Constitution?

(xviii) Whether the alleged violation of principles of Universal Declaration of Human Rights of 1948 and the Cairo Declaration on Human Rights in Islam are? justiciable in these proceedings?

(xix) Whether the impugned ordinance is liable to be struck down in the ground that earlier Ehtesab Act1997 was competently? and validly made and its vires were upheld by this court and therefore there was no necessity for enacting the same?

(xx) Whether the vires of the impugned Ordinance can be examined on the touchstone of Article 2A of the Constitution having regard to the law laid down by the Supreme Court in the case of Hakim Khan and 3 others v Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595)?

(xxi) Whether the provisions for appointment of Chairman and other officials in the National Accountability Bureau are discriminatory inasmuch as they do not lay down any qualifications in that regard or methodology for their appointment? '

(xxii) Whether the provisions relating to transfer of cases qua the Provincial Courts within the territories of a Province and from one Province to another, suffer from excessive delegation?

(xxiii) Whether in the absence of any provision in the impugned Ordinance regarding special treatment to be meted out to .women-accused is not violative of the mandate under Article 25(3) of the Constitution and section 167 of the Criminal Procedure Code??

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

----[As amended], Preamble---Summary of National Accountability Bureau Ordinance, 1999.

The Ordinance intends to provide for the setting up of National Accountability Bureau so as to eradicate corruption and corrupt practices and hold accountable all persons accused of such practices and matters ancillary thereto as spelt out from the Preamble.

Section 1 of the Ordinance describes the title of the Ordinance. By virtue of section 2 it came into force on 16-11-1999 and has been, trade retrospectively applicable with effect from the 1st day of January, 1985. Section 3 provides that the Ordinance shall .have effect notwithstanding anything contained in any other law for the time being in force. Section 4 covers its application and provides that it extends to whole of Pakistan and shall apply to all persons in Pakistan and. persons who are or have been in the service of Pakistan wherever they may be including areas which are part of Federally and Provincially Administered Tribal Areas.

Section 5 defines the expressions, 'accused', 'appropriate Government', 'assets', 'associates', 'Chairman National Accountability Bureau'. 'Code', 'Conciliation Committee', 'Court', 'Judge', 'Deputy Chairman', 'National Accountability Bureau', 'freezing', 'holder of public office', 'offence' 'person', 'property', 'Government property' and 'wilful default'. Section 6 deals with the constitution of National Accountability Bureau and appointments of its Chairman and Acting Chairman. Sections 7 and 8 deal with the appointments of Deputy Chairman and the Prosecutor? General Accountability respectively Sections e 9 and 10 respectively deal with corruption and corrupt practices and punishments therefore. The matters relating to imposition of fine, freezing of property and claim or objection against the freezing are respectively dealt with in sections 11, 12 and 13.

Section 14 deals with the presumption against accused accepting illegal gratification. Section 15 provides for incurring of disqualification to contest elections or to hold public office by convicted persons. Sections 16, 16A and 16B respectively deal with the subjects of trial of offences, transfer of cases and contempt of Court. Section 17 relates to application of the Code of Criminal Procedure as also power of the Accountability Court to dispense with any of the provisions of the said Code. Cognizance of offences by the Accountability Court, power of Chairman. National Accountability Bureau or any officer authorised by him to call for information and reporting of suspicious financial transactions by the banks and financial institutions for taking prompt action are dealt with under sections 18, 19 and 20. Section 21 deals-with international cooperation and requests for mutual legal assistance. Jurisdiction of Chairman, National Accountability Bureau to investigate suspected offences is provided under section 22 while section 23 deals with the circumstances under which the transfer of property by an accused or his relatives etc., shall be void. Section 24 deals with the arrest of the accused and other ancillary matters leading to the trial before an Accountability Court. Matters in relation to voluntary return/plea bargaining, payment of loans and tender of pardon to accomplice/plea bargaining are the subject-matters of sections 25, 25A and 26. Section 27 deals with power of Chairman, National Accountability Bureau or an officer authorised by him to seek asststance from any department of the Federal Government etc. and section 28 pertains to appointment of members of the staff and officers of National Accountability Bureau. Section 29 deals with the competence of the accused to be a witness and sections 30, 31 and 31A encompass the subjects of false evidence, etc., prohibition to hamper investigation and abscondence of accused to avoid service of warrants. Section 31B lays down the procedure for withdrawal from prosecution Section 31C'provides that the Accountability Court shall not take cognizance of an offence against an officer or any employee of a bank or financial institution without prior approval of the State Bank o: Pakistan. Section 31D deals with inquiry, investigation or proceedings in 'respect of imprudent bank loans etc. The matters in relation to appeal after conviction are dealt with under section 32 and the subject of transfer of pending proceedings has been dealt with under section 33.

Section 34 lays down procedure for framing rules for carrying out the purposes of the Ordinance, which shall form part Of the Ordinance itself. The subjects of repeal and indemnity are dealt with under sections 35 and 36 whereas section 37 provides power to President to add, omit or modify any provision .for the enforcement of the Ordinance. The Schedule of Offences provides for various terms of imprisonment in relation to the offences under the Ordinance.?

(c) National Accountability Bureau Ordinance (XVl(II of 1999)---

----[As amended], Preamble---Constitution of Pakistan. (1973), Art. 184(3)--?Constitutional petition under Art. 184(3), Constitution of Pakistan before Supreme Court ---Maintainability---Vires of National Accountability Bureau Ordinance, 1999---Question of great public importance---Not safe to decide case on concession simpliciter, shown by State counsel, in matters involving question of great public importance---Duty of Supreme Court was to exercise powers and functions within the domain of its jurisdiction in respect of any law or provision of law which comes for examination to ensure that the majesty of the law prevails and erosions therein are prevented so that all persons live securely under the rule of law; to promote within the limits of judicial functions, the observance and attainment of Human and Fundamental Rights and to administer justice impartially among. persons and between persons and the State which is sine qua non for the maintenance of judiciary and encouragement of public confidence in the judicial system.?

(d) National Accountability Bureau Ordinance (XVII1 of 1999)---

----[As amended], Preamble---Constitution of Pakistan (1973), Art. 184(3)--?Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ---Vires of National Accountability Bureau Ordinance, 1999---Grounds on which the Ordinance was sought to be struck down and defended summarized.

The National Accountability Bureau Ordinance, 1999 is sought to be struck down insofar as it:--

v creates a parallel and non-federal judicial system;

v denies the trial and Appellate Courts the power to grant bail and to suspend

sentences and vests the . power to grant bail in the executive (Chairman, National Accountability Bureau);

v allows the prosecution to detain a person for 90 days without so much as an initial duly formulated and precise F.I. R. ;

v provides for unfair procedure in derogation of due process;

v creates new offences;

v is in vague, imprecise and sweeping language;

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v reverses, for these offences, the burden of proof; and

v applies them retrospectively;

v delegates unfettered and unguided discretion to the executive, particularly as to the venue of the trial (question of federalism), plea bargaining and settlements;

v denies altogether the right of appeal in certain circumstances;

That some of the provisions of the National Accountability Bureau Ordinance are in conflict with some of the Fundamental Rights as also other provisions of the Constitution;

v It has been promulgated by the Federal Government without any legislative competence;

v It does not merely create a parallel judicial system, but a parallel system enabling the executive to exercise judicial powers, which is beyond the authority of the present dispensation, in that, conferment of judicial powers on the executive cannot be countenanced in law;

v It provides criminal penalty for civil debt/contractual obligations, default whereof was not punishable at the time of the execution of agreements in question, and even in the case of continuing. breach, the same cannot be converted into an offence being hire by Article 12 (2) of the Constitution;

v It is unfair, unjust, inequitable and against the accepted norms of jurisprudence as held by this Court in the cases of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) and Sh. Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504);

v It violates the provisions of sections 154, 200, 156, 157, 202, 161(4), (5), (6) and (7); ,169, 172, 173, 177, 179, 180, 185, 512, 494, 417 of the Code of Criminal Procedure, section 201 P.P.C: and Article 203 of the Constitution;

v The power of transfer/withdrawal. of cases from the ,Courts of ordinary jurisdiction for trial in the Accountability Courts without. the approval of the Court, vested in Chairman, National Accountability Bureau, being uncontrolled, militates against - the concept of independence of judiciary;

v Fundamental Rights cannot be Suspended in view of the judgment Syed Zafar Ali Shah v. General Pervez Musharraf (PLD . 2000 SC 869) and this Court, in the exercise of its jurisdiction under Article 184(3) of the Constitution, can strike. down the National Accountability Bureau Ordinance, being violative of Articles 8, 10 and 12 of the Constitution;

v Some. provisions of the National Accountability Bureau Ordinance are intra vires and others are ultra vires, but the doctrine of severability is not attracted in these cases, in that, the good parts cannot be separated from the bad ones and therefore the entire National Accountability Bureau Ordinance should be struck down in view of the fact that the field is totally and adequately occupied by the existing laws on the subject;

v It is an ex post facto law, the very thought whereof is abhorrent to the administration of justice;

v It is not a mere procedural law, but a substantive law and therefore the rules of evidence to reduce the rigour of standard of proof are unsustainable;

The case of the Federation/respondents is that the National Accountability Bureau Ordinance does not suffer from any legal infirmity inasmuch as:

v It is a valid piece of legislation made and promulgated by the competent authority under the Chief Executive's Order No. 9 of 1999 dated 15-1-1-1999, as amended from time to time;

v The legislation has been duly acted upon and is being administered throughout the country inasmuch as numerous Accountability Courts have been established and Judges have been appointed to such Courts in consultation with the Chief Justice of Pakistan. This ensures the independence of the Courts and the judiciary in 'general. All these Courts are presided over by serving and retired District and Sessions Judges, who are under the direct supervisory control of the Chief Justices of the respective High Courts of the four Provinces: '

v The National Accountability Bureau Ordinance is a special law falling in the-series seeking to combat the evil of high level corruption. . For the first time; through the National Accountability Bureau Ordinance, members of hitherto an untouchable class of influential and powerful persons; not merely restricted to holders of public offices, but. also including bankers, businessmen, industrialists, bureaucrats and other persons, who are involved in corruption and corrupt practices as defined in the National Accountability Bureau Ordinance, fall within the purview of accountability in an effective and coherent manner;

v The National Accountability Bureau Ordinance seeks to:--

(i) re-define certain offences and re-prescribe their punishments;

(ii) provide for Special Courts and procedure for trial of specified offences;

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(iii) provide for special agency for pre-trial investigation / inquiry namely, the National Accountability Bureau;

One of the objective of the National Accountability Bureau Ordinance is the retrieval of? the looted public money. It also provides for ?plea bargaining? which appears for the first time in such a law in Pakistan and in consequence 1064.600 million rupees have been recovered during a short span;

v Up to 2-4-2001, 759 authorized investigations have been undertaken by the National Accountability Bureau out of which 143 have been completed while 586 are in progress and 30 have been closed or suspended. Similarly out of 261 filed in the Accountability Courts, 120 have been decided with 73 convictions and 16 acquittals. 46 `plea bargaining' cases were concluded while 13 were rejected. Only 36 accused are in National Accountability Bureau custody for interrogation, 156 are in the judicial lock?ups, 56 have been released and 69 are at large; , v The National Accountability Bureau Ordinance was framed keeping in mind Articles 175, 202 and 203 of the Constitution and the principles laid down in Mehram Ali's case PLD 1998 SC 1445;

v It does not create a new offence with retrospective effect, but an offence, which is in the nature of continuation of wilful default' after coming into force of the National Accountability Bureau Ordinance;

v Section 5(r) does not negate the freedom of trade, business and profession as contemplated in Article 18 of the Constitution. It merely seeks to penalize deliberate evaders of due payments to financial institutions. Prosecution of genuine cases where there are no deliberate and wilful evasions is abandoned within the contemplation of the National Accountability Bureau Ordinance; .

v Section 5 (r), no doubt, is a Constitutional deviation in view of the provisions of Article 12 (2) of the Constitution, but on the ground of State survival and having regard to the objectives of the Chief Executive coupled with the law declared in the case of Syed Zafar Ali Shah PLD 2000 SC 869,. no objection can be taken to section 5. (r), particularly when adequate safeguards have been provided by making appropriate amendments in the Ordinance;

v Conciliation Committee has been established and no, proceedings against the loan defaulters can be initiated by the National Accountability Bureau without the recommendation of the Governor, State Bank of Pakistan. However, .section 25-A requires to be further suitably amended so as to empower the Court of competent jurisdiction to decide as to whether or not accept the agreement/conciliation reached between the parties;

v The National Accountability Bureau Ordinance does not contravene the. provisions of Articles 23/24 of the Constitution, in that, freezing of property of the accused persons? (ill-gotten properties). is merely an interlocutory measure;

v The vires of the National Accountability Bureau Ordinance cannot be tested on the touchstone of 'the Fundamental Rights, which stood suspended by the Proclamation of Emergency of 28th May, 1998; which has been upheld by this Court in Syed Zafar Ali Shah's case PLD 2000 SC 869;

v The burden of proof on accused is not .an alien concept in jurisprudence. There are number of existing laws, which place the burden of proof on the accused and/or require an accused to rebut a statutory presumption. Such a course is not violative of the equality clause(s) of the Constitution;

v The choice of Court to which a reference is sent for trial is a matter of procedure and no body has a vested right to demand that his case be tried by a particular Court/Bench;

v The power conferred on Chairman National Accountability Bureau is not uncontrolled and his discretion is to be exercised judiciously having regard to the provisions of section 24A of the General Clauses Act, 1897, which require reasons to be recorded in writing for a deviation while passing any discretionary order;

v The provisions of the Ordinance are in conformity with the established principles of procedure for criminal proceedings;

v The nature of investigation and inquiry under the National Accountability Bureau Ordinance is of special kind, which entails inquiry and investigation into such offences, and in most cases requires tedious ,efforts including careful perusal of voluminous records of companies/banks, which cannot be completed overnight and therefore the period of 90 days for custody has been prescribed;

v A The period of remand of 90 days is not violative of Article 10(2) of the Constitution, in that, section 24 (d) requires production of the accused before an Accountability Court within 24 hours of the arrest;

v Section 23 of the Ordinance, insofar as it prohibits transfer of any right, title, interest or creation of charge on property after Chairman, National Accountability Bureau has initiated investigation into the offences under the National Accountability Bureau Ordinance, is an interlocutory measure, in that, it is not desirable that persons accused of such offences should frustrate the objects of law by creating third party rights in respect of illegally acquired property thereby creating hurdle in the objects of law;

v Power vesting in Chairman, National Accountability Bureau under section 24 (a) of the National Accountability Bureau Ordinance to order arrest of the, accused if not already arrested at any stage of the investigation, is neither discriminatory nor violative of Article 25 of the Constitution, in that,. similar powers are conferred upon police officers under section 54., Cr.P.C.;

v As to the case of voluntary return, i.e. `plea bargaining' under section 25, the provision stands amended by virtue of Amendment Ordinance No. XXIV of 2000 and now, by virtue of section 25 (a) (ii), after cognizance of the offence has been taken by the Court or the trial hay commenced, Chairman, National Accountability Bureau may release the accused only with the approval of the Court;

v There is no restraint on freedom of contract, in that, the Powers earlier vesting in Chairman, National Accountability Bureau tinder section 25(e) and (g) have now been vested in the Governor, State Bank of Pakistan by virtue of the Amendment Ordinance No. XXIV of 2000, thus clause (g) of section 25 does not suffer from excessive delegation;

v Section 32 (d) of the National Accountability Bureau Ordinance is subject to the Constitution and does not purport to oust the Constitutional jurisdiction of the Courts;

v The Civil Servants Act, 1973 continues to apply to civil .servants, who are deputed to or posted in the National Accountability Bureau. Those, who are appointed directly, are distinct and separate category and class of persons and therefore no violation of Article 25 of the Constitution is caused;

v The mere fact that the Ehtesab Act, 1997 was competently and validly made and its vires were upheld by this Court does not curt, the power of the Legislature to make a new law on the same subject; .

v The National Accountability Bureau Ordinance is neither discriminatory nor un-Islamic and in. any case, its vires cannot be examined on the touchstone of Article 2A of the Constitution;

v The method of appointment in respect of Chairman, National Accountability Bureau is contained in section 6(b)(i) and for other officers in section 28 of the Ordinance. Provisions relating to transfer of cases qua the Provincial Courts within the territories .of a 'Province and from one Province to another Province, do not suffer from excessive delegation;

v As regards special treatment to be meted out to women-accused, the provisions of section 167, Cr.P:C. are applicable and the same have not been ousted.?

(e) National Accountability Bureau Ordinance (XVIII of 1999)---

----[As amended], Preamble---Constitution of Pakistan (1973), Arts. 184(3) & 199---Constitutional jurisdiction of Supreme Court under Art.184(3) of the Constitution ---Scope---Vires of legislation---Principles---Any legislhtive instrument which undermines independence of judiciary or abrogates or abridges any Fundamental Right may be regarded as repugnant to the spirit . of the Constitution---Supreme Court has the power to declare such legislative instrument as unenforceable, partly or wholly, as the case may be, depending upon the nature of legislation and facts and circumstances of each case---When the existence and safety of the country is endangered because of the economic disaster, Supreme Court is the sole Judge, both of proportions of the danger and when and how the same is to be prevented and avoided.??

(f) National Accountability Bureau Ordinance (XVIU of 1999)---

----[As amended], Preamble---Constitution of Pakistan (1973), Art. 184(3)--?Constitutional jurisdiction of Supreme Court under Art. 184(3) of the Constitution ---Scope---Vires of National Accountability Bureau Ordinance, 1999---Supreme Court has to protect the Fundamental Rights guaranteed under the Constitution and the independence of judiciary---Supreme Court being the ultimate guardian of the rights of the people, it was the duty of the Court to authoritatively interpret not only the validity of the National Accountability Bureau Ordinance, 1999 but also its scope.

Bench should be independent of the Executive and. arbiter of the. Constitution to decide all disputed questions. This is so because the superior Courts, in the exercise of their judicial powers, have to check the arbitrary exercise of power by any other organ or authority of the State. It rests with the Courts alone to define and limit the exercise of power by the Executive in terms of a legislative instrument. It is the duty of Supreme Court to protect the Fundamental Rights guaranteed under the. Constitution and the independence of the judiciary. Supreme Court is the ultimate guardian of the rights of the people. It is, therefore, the duty of Supreme Court to authoritatively interpret not only the validity 4 the National Accountability Bureau Ordinance, 1999 but also its scope.?

(g) National Accountability Bureau Ordinance (XVIII of 1999)---

----[As amended], Preamble---Constitution of Pakistan (1973), Art. 184(3)--?Constitutional petition under' Art.184(3) of the Constitution before Supreme Court ---Maintainability---.Requirements---Vires of National Accountability Bureau Ordinance, 1999---Only requirement for maintainability of Constitutional petition under Art. 184(3) was that petition, should raise a question of public importance with . regard to the enforcement of Fundamental Rights---National Accountability Bureau Ordinance, 1999 affecting the public at large, question of its validity was a question of public importance.?

Syed Zafar Ali Shah and others v. General Pervez. Musharaf, Chief Executive of Pakistan and others 2000 SCMR 1137 ref.

(h) National Accountability Bureau Ordinance (XVIII of 1999)---

----[As amended], Preamble---Constitution of Pakistan (1973), Arts. 184(3), 12; 175, 202 & 203-;_-Constitutional petition under Art. 184(3) of the Constitution before , Supreme Court---Maintainability---Constitutional petitions, were admitted to regular hearing, inter alia, to examine whether the promulgation of National Accountability Bureau Ordinance, 1999, whereby it was deemed to have come into force with effect from 1-1-1985 being retrospective, contravened the Fundamental Rights enshrined in Art.12 of the Constitution insofar as it created a new offence of "wilful default' as also the question whether the said Ordinance created a parallel judicial system in disregard of the provisions of Arts.175, 202 & 203 of the Constitution and was violative of the law laid down by the Supreme Court in the case of Mehram Ali reported as PL,D 1998 SC 1445---Held, it was the duty of the Supreme Court to examine the points raised in the petitions and pronounce authoritative judgment thereon.?

(i) National Accountability Bureau Ordinance (XVIII of 1999)---

----S.5(g)---Criminal Procedure Code (V of 1898), S.6---Federal Government is competent to make a law providing for Special Courts and procedure under which the Courts will function and dispense justice.

Section 6, Cr.P.C. describes the criminal Courts and 'any other Court established by or under any other law'. Thus, -the Federal Government is competent to make a law providing for Special Courts and the procedure under which the Courts will function and dispense justice.?

(j) Legislation

----Principle---Legislature, which has made any law, is competent to change, annul, reframe or add to that law.?

(k) Constitution of Pakistan (1973)---

----Arts.175, 202, 203 & 225---Establishment and jurisdiction of Courts and Tribunals---Rules of Procedure---High Court to superintend subordinate Courts---Expression "Such other Courts as may be established by law" in Art. 175 of the Constitution are relatable to the subordinate Courts referred to in Art.203 of the Constitution---Functioning of any Court or Tribunal, beyond the control and supervision of the High Court concerned in terms of Art.203 of the Constitution, does not fulfil the mandatory requirement of the Constitution, in that, under Art.203 of the Constitution read with Art. 175 of the Constitution, the supervision and control of the subordinate judiciary exclusively vests in the High Courts.?

Mehram Ali and others v, Federation of Pakistan and others PLD 1998 SC 1445 ref.

(l) Constitution of Pakistan (1973)---

----Art.175---Criminal Procedure Code (V of 1898), S.6---Establishment of Criminal Courts---Constitution does confer power on the Federal Legislature to establish Criminal Courts or Tribunals and not necessarily those Criminal Courts, which fall within the purview of S.6, Cr.P.C.?

Abdul Hafeez v. The State PLD 1981 SC 352 and Mirza Gulzar Beg v. Station House Officer, Railway Police Station, Lahore and 3 others PLD 1977 Lah, 435 ref.

(m) National Accountability Bureau Ordinance (XVIII of 1999)---

----[As amended], Preamble---Constitution of Pakistan (1973), Art. 184(3)--?Constitutional petition under Art. 184(3) before the Supreme Court--?National Accountability Bureau Ordinance, 1999 [as amended] having been competently promulgated was neither ultra vires the Constitution nor did it invade the Provincial autonomy in any manner---Principles.

All laws relating to the jurisdiction of Courts and for filing causes before the Courts, whether civil or criminal, do not take their queue on the principle of federation. In civil law, it is the cause. of action that determines, in most cases, where the suit has to be filed--where the defendant---where the debtor resides. So, there are variety of considerations but none relatable to federal territorial character. In criminal cases, the general principles are contained to sections 177 to 182, Cr.P.C. i.e. where the crime takes place, the Courts in that area have jurisdiction and it matters little whether the person belongs to one or the other Province. It is the crime, its nature and the place of crime that determine the place where the trial has to take place Section 178, Cr.P.C. authorizes the Provincial Governments to determine the venue of trial of offences It is a law of procedure, the scheme of which is not concerned with the question of provincial autonomy. Where a crime has taken place in various parts of the country or is spread over various places, any of the Courts of those areas is competent to take cognizance of the matter. In determining where the matter has to be tried, no consideration is given to the provincial nature of the society, autonomous nature of the Provinces or to the tact that the -accused belongs to one or the other Province. All these matters have no concern with the concept of provincial autonomy except the High Courts, which have been created under the Constitution for each Province. The scheme of the creation of the Supreme Court is not of that character. It is not a Federal Court. It is the apex Court. It is a Court for the whole of Pakistan and it does not go by the principle of federation in that fashion in which. the allocations are made and distributions take place. In its own wisdom, the Supreme Court may decide how, to manage its composition. That is different thing, but the Constitution does not do that, it looks into it as an apex Court.

The National Accountability Bureau Ordinance has been competently promulgated and is neither ultra vires the Constitution nor-does it invade the provincial autonomy in any manner.?

(n) Constitution of Pakistan (1973)--- . .

----Art.176---Su?preme Court---Composition of---Constitution looks into Supreme Court as an apex Court---Supreme Court is not a Federal Court, it is the apex Court and is a Court for the whole of Pakistan and does not go by the principle of Federation in that fashion in which the allocations are made and distributions take place---Supreme Court, in its wisdom, may decide how to manage its composition.?

(o) National Accountability Bureau Ordinance (XVIII of 1999)---

----Ss.5(g), 9(c), 16(c), 16-A(b), 24(d) & 32---Constitution of Pakistan (1973), Arts.175, 202, 203 & 184(3)---Establishment of Accountability Courts; trial of offences; transfer of cases; release of accused from custody: arrest and appeal under the Ordinance---Validity---Questions for consideration were as to whether provisions of the National Accountability Bureau Ordinance, 1999 were violative of the principles of trichotomy of powers as envisaged under the Constitution and whether the Ordinance created a parallel judicial system in disregard of the provisions of Arts. 175. 202 & 203 of the Constitution in the light of law laid down in Mehram Ali's case PLD 1998 SC 1445---Held, Judges of Accountability Courts had to be serving District and Sessions Judges qualified to be appointed as Judges of the High Court and such Judges were to be appointed for a period of three years in consultation with the Chief Justice of the concerned High Court and not with the Chief Justice of Pakistan as contemplated in S.5(g) of the National Accountability Bureau Ordinance, 1999---Employment of a retired Judge of a High Court or a retired District & Sessions Judge as Judge of the Accountability Court impinged upon the independence of judiciary---National Accountability Bureau Ordinance, 1999 had vested various judicial powers such as grant of bail and release of accused pending trial or appeal, exclusively in an executive Authority i.e. the Chairman, National Accountability Bureau, in violation of the principle of separation of powers-?-Powers to set conditions for the release of an accused from custody or detention was a judicial power which ought not to be exercised except by a Court which was established under Art. 175 of the Constitution and was subject to the supervisory jurisdiction of the High Court in term of Arts.202 & 203 of the Constitution---Instructive guidance for smooth and effective functioning of the Accountability Courts and terms of office of the Judges of such Courts including that of present incumbents were provided by the supreme Court with a direction that relevant provisions in the National Accountability Bureau Ordinance, 1999 be suitably amended.

Section 5(g) of the National Accountability Bureau Ordinance, 1999 provides drat a judge of an Accountability Court will be appointed by the President after consultation with the Chief Justice of Pakistan and he can only be removed from office earlier than the statutory period by the President, after consultation with the Chief Justice of Pakistan. Section 16(c) of the said Ordinance provides that where more than one Accountability Courts have been established for an area, the Chief Justice of the High Court of the Province concerned shall designate an administrative judge from amongst the Accountability Courts/Judges in that area.

Section 16A(b) provides that where the Chairman, National Accountability Bureau seeks transfer of a case from one Accountability Court to another within a Province, an application seeking such transfer shall be made to the Chief Justice of the High Court for that Province and where the transfer is sought from an Accountability Court in one Province to an Accountability Court in another Province, an application seeking such transfer shall be made to the Chief Justice of Pakistan. Section 32 provides that appeal from final judgment and order, of an Accountability Court shall lie to the High Court of the concerned Province. Section 34 provides that rules shall be framed by the President for carrying out the purposes of the impugned Ordinance in consultation with the Chief Justice of Pakistan.

In the present case the questions which require consideration are (i) whether the above provisions of the impugned Ordinance are violative of the principle of trichotomy of powers as envisaged under the Constitution and (ii) whether the Ordinance has created a parallel judicial system in disregard of the provisions of Articles 175, 202 and 203 of the Constitution in the light of the law laid down in Mehram Ali's case PLD 1998 SC 1445.

It is true that under section. 5(g) of the National Accountability Bureau Ordinance, 1999 a Judge of an Accountability Court is appointed by the President of Pakistan in consultation with the Chief Justice of Pakistan and he cannot be removed earlier than the statutory period of two years after consultation with the Chief Justice of Pakistan. It is also true that as a matter of fact except few, all the Judges of the Accountability Courts are from the subordinate judiciary who were appointed through a consultative process. Though the Chief Justice of Pakistan is the sole consultee for appointment of a Judge of Accountability Court, nevertheless, he had obtained written recommendations from the Chief Justices of the concerned High Courts and only those persons were appointed who were recommended by the concerned Chief Justice.

The provision. of section 5(h) which permits the employment of a retired Judge of a High Court or a retired District and Sessions Judge does impinge upon the Independence of Judiciary. The statutory appointment of persons other than serving Judges is two years while a Sessions Judge serving on deputation as Judge Accountability Court, `can be reverted to the subordinate judiciary at any stage as no statutory terms of deputation have been prescribed. Additionally, having regard to the. principles of separation of powers and in consonance with the. concept of Independence of Judiciary, judicial powers cannot be exercised by executive functionaries. The National Accountability Bureau Ordinance vests various judicial powers such as grant of bail and release pending trial or appeal, exclusively in an executive authority, i.e. the Chairman, National Accountability Bureau, in violation of the principle of separation of powers.

Section 9(c) read with section 24(d) of the Ordinance vests the power to release any person accused of an offence under the Ordinance in the Chairman, National Accountability Bureau and that too on the basis of any conditions as he may think fit are unwarranted. Such vesting of power is unwarranted. The power to set conditions for the release of an accused from custody or detention is a judicial power which ought not to be exercised except by a Court which is established under Article 175 of the Constitution and is subject to the supervisory jurisdiction of the High Court in terms of Articles 202 and 203.

For smooth and effective functioning of the Accountability Courts all the Judges should be serving District and Sessions Judges qualified to be appointed as Judges of the High Court. They should be appointed for a period of three years in consultation with the Chief Justice of the-concerned High Court and not with the Chief Justice of Pakistan as contemplated in section 5(g) of the National Accountability Bureau Ordinance. During their term of appointment as such they shall not be transferred to any other place nor removed from service except on ground of misconduct, or physical or mental infirmity by the competent authority i.e. the High Court concerned, after following the procedure prescribed in the relevant rules in that regard. They shall be entitled to same remuneration, privileges, facilities and allowances as are admissible to their counterparts who are performing functions in respect of Courts and Tribunals established by the Federal Government. They shall not be paid the salaries and privileges as are admissible to Judges of the High Court except security arrangements if and when required having regard to the nature of their work. Remuneration already drawn for the period they performed their functions as Judges of the Accountability Courts shall not be recovered being hit by the doctrine of past and closed transaction. Further, appointment and posting as Judge of Accountability Court shall not debar such Judge from being elevated as Judge - of a High Court if so appointed in terms of Article 193 of the Constitution.

The present incumbents/Judges .of the Accountability Courts who are not serving District and Sessions Judges shall be given an option to serve as 'such on the last pay/salary drawn at the time of their retirement as District and Sessions Judges for the remainder part of their term of three years otherwise their services shall be dispensed with by giving them three months' salary.?

There is a positive direction by Supreme Court in the case of Zafar Ali Shah's case PLD 2000 SC 869 that the Government shall accelerate the process of accountability in a transparent and coherent way. The Accountability Courts have since been established by the President in consultation with the Chief Justice of Pakistan who in turn had supported the recommendations of the concerned Chief Justices of the High Courts in their entirety without suggesting additional names for any of the intending appointees, it would, therefore, be in the interest of quick disposal of accountability cases and in the fitness of things that the. Present incumbents/Judges of the Accountability Courts are not disturbed from performing their functions at the respective places of their posting. They shall be deemed to have been appointed for a period of three years from the day they entered upon their respective offices. However, the Judges of the Accountability Courts shall perform their functions under the supervision and disciplinary control of the respective High Courts'.

Budgetary allocations already sanctioned/earmarked for establishment of Accountability Courts, their presiding officers, staff and for other allied matters, shall remain operative notwithstanding the fact that Judges of the Accountability Courts shall be under the disciplinary control of the concerned High Courts and not the Federal Government. The relevant provisions in the National Accountability Bureau Ordinance, therefore be suitably amended.?

(p) National Accountability Bureau Ordinance (XVIII of 1999)---

----Preamble---Constitution of Pakistan (1973), Arts. 175, 202, 203 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ---Vires of National Accountability Bureau Ordinance, 1999---National ,Accountability Bureau Ordinance, 1999 vests various judicial powers such as grant of bail and release of the accused pending trial or appeal exclusively in an executive Authority, i.e. the Chairman, National Accountability Bureau, which is in violation of the principles of separation of powers.?

(q) National Accountability Bureau Ordinance (XVIII of 1999)---

----Ss.9(c) & 24(d)---Constitution of Pakistan (1973), Arts. 175, 202, 203 & 184(3)---Vires of National Accountability Bureau Ordinance, 1999--?Provisions of S.9(c) read with S.24(d) of the Ordinance vest the power to release any person accused of, an offence under the Ordinance in the Chairman of the Bureau and that too on the basis of any conditions as he may think tit, are unwarranted-- -Powers to set conditions for the release of an accused from custody or detention is a judicial power which ought to be exercised by a Court which is established under Art.175 of the Constitution and is subject to the supervisory jurisdiction of the High Court in terms of Arts.202 & 203 of the Constitution.?

(r) National Accountability Bureau Ordinance (XVIII of 1999)---

----S.9(b)---Constitution of Pakistan (1973), Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ---Vires of National Accountability Bureau Ordinance, 1999---Provision of S.9(b) of the Ordinance purports to deny to all Courts, including the High Courts, the jurisdiction under Ss:426, 491, 497, 498 & 561-A, Cr.P.C. or any other law for the time being in force, to grant bail to any person accused of an offence under the Ordinance---Validity---Superior Courts have the power to grant bail under Art. 199 of the Constitution, independent of any statutory source of jurisdiction such as S.497, Cr.P.C.---Section 9(b), National Accountability Bureau Ordinance, 1999, to that extent is ultra vires the Constitution and the same is to be suitably amended accordingly.

The superior Courts under Article 199 of the Constitution "remain available to their full extent ....notwithstanding anything contained in any legislative\instrument enacted by the Chief Executive": Whereas, section 9(b) of the National Accountability Bureau Ordinance, 1999 purports to deny to all Courts, including the High Courts, the jurisdiction under sections 426, 491, 497, 498 arid 561A or any other provision of the Code of Criminal Procedure or any other law for the time being in force, to grant bail to any person accused of an offence under the National Accountability Bureau Ordinance. The superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as section 497 of the Criminal Procedure Code. Section 9(b) of the Ordinance to that extent is ultra vires the Constitution. Accordingly, the same be amended suitably.?

(s) National Accountability Bureau Ordinance (XVIII of 1999)---

----Ss.5(r) & 2---Constitution of Pakistan (1973), Arts. 12, 18 & 184(3)--?Constitutional petition under Art.184(3) of the Constitution before the Supreme Court ---Vires of National Accountability Bureau Ordinance, 1999---"Wilful default" ---Contention was that creation of a new offence of "wilful default" with retrospective effect was violative of Art.12 of the Constitution and definition of "wilful default" as given in S.5(r) of the Ordinance negated the freedom of trade, business or profession as contemplated by Art.18 of the Constitution---Validity---Non-payment of loan/dues in terms of the agreement within the contemplation of S.5(r) of the Ordinance is a continuing breach of duty or obligation, which itself is continuing. if duty to repay the loan/dues continues from day to day and the non-performance of that duty/obligation from that point of view is continuing default in the repayment of loan and if it is continuing, there is a fresh starting point of. limitation every day as the wrong continues---No limitation and no question of retrospectivity is involved as long as the duty remains un-discharged--Offence contemplated under S.5(r) of the Ordinance is the one which is committed over a span of time, therefore the last act of the offender controls the innocence or otherwise of the party---Nature of default contemplated is not the default which is committed once and for all, it is a continuous default and on every occasion the default occurs and recurs, it constitutes an act or omission which continues and therefore a fresh act---Offence contemplated under S.5(r) of the Ordinance is not retrospective but prospective in nature---Viewed in the perspective stated the transformation of the alleged civil action flowing out of the contractual obligations, into an "offence" under the Ordinance did not suffer from any flaw whatsoever---Punishments and creation of offences by the Ordinance are protected by Art.12 of the Constitution, in that, under Art.12 of the Constitution ex post facto legislation can neither create new offences nor provide for more punishment for - an offence than the one which was available for it when committed, this is the limited impact of Art.12 of the Constitution---Only prohibition as to retrospectivity of the offence, contemplated under Cl.(1), (a)(b) of Art. 12 of the Constitution, therefore, is not attracted in circumstances---Supreme Court, however, in order to ensure across-the-board accountability issued directions under Art.37 read with Art. 187 of the Constitution for the application of S.5(r) of the Ordinance which shall be suitably incorporated in the Rules to be framed under S.34 of the Ordinance, which shall on promulgation become part of the Ordinance--?Adoption of the directions shall not affect the initiation of investigation and its continuation to its logical end or the proceedings pending before any Authority/Court under the National Accountability Bureau Ordinance, 1999.

For the last several years there has been tremendous increase in allegations of massive corruption against divergent strata of the society. The necessity for creating the offence of `wilful default' arose because in the past the prosecution agency and other government agencies had not properly carried out their public duty to investigate the offences disclosed due to the alleged involvement of several persons holding high offices in the executive, public offices, etc. Indifferent/casual attitude of the concerned agencies to conduct and proceed with the investigation is understandable. This is, indeed, a grave situation. Supreme Court can take judicial notice of the fact that great loss of public revenue owing to enormous corruption and failure to recover the looted money through huge bank loan defaults pose a serious threat to economic life, financial stability, credit and security of Pakistan including the unity and integrity of the nation. These are the circumstances in which the vires of the Ordinance are to be judged, which was promulgated for an expeditious and thorough probe into corruption and corrupt practices and holding accountable those' accused of such practices, which had already been delayed for several decades. The validity of the impugned Ordinance is also to be judged keeping in view the extraordinary circumstances prevailing in the country and the adverse impact of lacking probity in the public life leading to highest degree of corruption. Such a situation has also adversely affected the foreign investment and funding from the International Monetary Fund as well as the World Bank who have warned that future aid to Pakistan shall be subject to the requisite steps being taken to eradicate corruption. If the pervading corruption in the society is permitted to continue unchecked it would lead to economic disaster.

It was on 12th October, 1999, that the situation prevailing in the country in the sphere of economic debacle was recognised. The factors leading to the above situation on the ground, included the acts and omissions of persons who were the Members of the National and Provincial Assemblies, the Senate, the Civil Services, in business and/or working for gain in other disciplines in the country.

In Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others (PLD 2000 SC 869) Supreme Court took notice of the pleadings of the parties, and after considering the adverse effects of the inaction etc. of all concerned to collect the looted wealth of the country from those who were responsible therefore, it was observed that the action taken on 12-10-1999 was justifiable and that the speeches of the Chief' Executive dated 13-10-1999 and 17-10-1999 correctly spelt out the plan/scheme to be adhered to by him for the purposes of making recovery thereof: It was held that Chief Executive of the Islamic Republic of Pakistan is entitled, inter alia, to perform all such acts and promulgate all legislative measures as would establish or lead to the establishment of the declared objectives of the Chief Executive as spelt out in his speeches referred above. The Chief Executive in his speech dated 17-10-1999 clearly stated:

"Revival of economy is critical. Our economy is in deep trouble and revolutionary steps are needed to put it back on track. The Pakistani people were subjected to betrayal of their. trust. Their hard-earned money was frozen or taxed in violation of State commitment. We need to restore this trust. " '

"The process of accountability is being directed especially towards those guilty of plundering and looting the national wealth and tax evaders. It is also directed towards loan defaulters and those who have had their loans rescheduled or-condoned. The process of accountability will be transparent for the public to see.. My advice to the guilty is to return voluntarily national wealth, bank loans and pay their taxes before the hand of law forces them to do so with penalty. As a last chance I urge all defaulters to come forth and settle their debts within a period of four weeks, after which their names will be published and the law will take its due course. They owe this to Pakistan and I expect their spirit of patriotism to guide them. "

It was in the above backdrop that the Ordinance was promulgated and amendments made therein, subsequently. . The plea that a person entering into contractual obligations before the promulgation of the impugned Ordinance cannot be made to suffer for his alleged failure to clear his said indebtedness under the impugned Ordinance and that too as an offence, loses all significance in the light of the above circumstances. It is not the case of any one that they have been willing to account for the ill-gotten wealth and that it was not their inaction which has placed them in the predicament in which they find themselves today. The sources of amassing wealth by the specific individuals and juristic persons being what they are, they should not expect any lenient view in the cases, against them provided the action taken against them is not contrary to a valid piece of law. More so, when the efforts on behalf of Bureau in putting them under notice of 30-days in terms of section 5(r) of the impugned Ordinance also fell on deaf ears. Viewed in this perspective, the transformation of the alleged civil action flowing out of the contractual obligations, into an "offence" under the impugned Ordinance, does not suffer from any flaw whatsoever.?

The validation and legitimacy accorded to the present Government is conditional, inter-linked and intertwined with the holding of general elections to the National . Assembly, the Provincial Assemblies and the Senate of Pakistan within the time frame laid down by this Court leading to restoration of the democratic institutions, that is to say, the elections must be held and Assemblies restored by 12-10-2002.?

.It is true that .unless a proper investigation is made and it is followed by equally proper prosecution, the efforts to recover the looted money would be an exercise in futility. The need for a strong and competent prosecution machinery is a sine qua non for a fair and competent investigation. Investigation and prosecution are inter-linked. If the conduct of those who are guilty of not discharging their contractual obligations in the re-payment of loans then in order to revive the economy in the light of the declared objectives of the Chief Executive particularly his speech dated 17-10-1999 and the law laid down in Zafar Ali Shah's case (PLD 2000 SC 869), there does not appear to be any bar.to promulgate the legislation to make such conduct amounting to an "offence" and the same must be duly investigated and the offender against whom a prima facie case is made out should be expeditiously prosecuted through a fair trial. .It is well known that the international agencies like the International Monetary Fund and the World Bank have warned Pakistan time and again that future aid to the country may, be subject to appropriate steps being taken to eradicate corruption.

In the Commonwealth Finance Ministers Meeting held on 21-23rd September, 1999 noticed in the case of Zafar Ali Shah's case (PLD 2000 SC 869) it was .inter alia observed that; "Corruption, which undermines development, is generally an outcome and a symptom of poor governance. It has reached global proportions and needs to be attacked directly and explicitly". In this context and in the interest of State survival any appropriate strategy/legislation for ameliorating the situation and reviving the economy has to be judged in the light of the test laid down in Zafar Ali Shah's case (PLD 2000 SC 869). It may be re-emphasised that in the judgment in Zafar Ali Shah's case (PLD 2000 SC 869), which was upheld in review, it was stated in unambiguous terms that the Chief Executive is entitled to perform all acts and promulgate all legislative measures as are highlighted in paragraph 6 of the Short Order, clause (v) whereof reads as under

"(v) That these acts, or any of them, may be performed or carried out by means of Orders issued by the Chief Executive or through Ordinances on his advice."

The de facto and de jure status of the present regime was recognised for a transitional period to prevent any further destabilisation and with a view to create corruption-free atmosphere at national level through transparent accountability; revive the economy before restoration of democratic institutions under the Constitution, in that, the Constitution offered no solution to the crisis. In these circumstances, the Court took judicial notice of the fact that the people of Pakistan generally welcomed the army takeover due to avowed intention of the Chief Executive to initiate the? process of across-the-board and transparent accountability against persons from every walk of life against whom corruption and abuse of national wealth have been alleged, and take appropriate measures for stabilising the economy and restoring the democratic institutions within the shortest possible time after achieving his declared objectives. This will be another factor which shall be kept in mind while examining the validity of the impugned Ordinance.

Yet another factor, which is to be taken into consideration while judging the validity of the impugned Ordinance would be that one of the grounds on which validation and legitimacy was accorded to the present regime as stated in the case of Zafar Ali Shah PLD 2000 SC 869 was that the representatives of the people, who were responsible for running the affairs of the State were themselves accused of massive corruption and corrupt practices in the public as well as private spheres and were benefiting therefrom. They were resisting the establishment of good governance. There was a -general perception that corruption was being practised by diversified, strata including politicians, parliamentarians, public officials and ordinary citizens and there was no. political and economic stability in the country. The bank loan defaults were rampant, in that, as per report of the Governor, State Bank of Pakistan, Rs.356 billion were payable by the bank defaulters up to 12-10-1999. There being no accountability and transparency, economic stability in the country was highly precarious and there was an overall economic slowdown as GDP growth during the past three years had hardly kept pace with the growth of population and that Pakistan has a debt burden which equals the country's entire national income.?

If the conduct of a holder of public office amounts to an offence, it must be investigated forthwith and if a prima facie case is made out against the offender there is no reason why he should not be prosecuted for the majesty and maintenance of rule of, law. A duty is cast on the judiciary to ensure the rule of law and guard against erosion therein. In the past the Government agencies had failed to perform their statutory duties to investigate matters and to prosecute all persons who were found to have. committed offences of corruption, corrupt practices and recovery of Government dues with a view to protect the persons involved, who were very influential and powerful.

In view of persistence of corruption and genuine emergent need for the recovery of outstanding amounts from those persons .who have committed default in the repayment of amounts to banks, financial institutions, Government and other agencies and all measures having failed to recover the same' through ordinary Courts of law, it became necessary to promulgate the extraordinary legislation in the extraordinary circumstances prevalent in the country. Had the Government agencies and the Revenue authorities performed their duties and legal obligations justly, fairly and in accordance with law and had there been proper investigation into alleged offences committed by important politicians, bureaucrats .and the persons who were recipients of money from any unlawful sources given for unlawful considerations, there would have been no need to promulgate the Ordinance. But when the matter discloses a clear nexus between crime/corruption and powerful persons holding public offices which poses a serious threat to the economy as well as the very existence of the country, then to prevent erosion of the rule of law and to take steps for restoration of democracy in the country within the time frame laid down by Supreme Court, it will have to be examined whether the mechanism involved for recovery of amounts from the wilful defaulters for reviving the economy is in conformity with the declared objectives of the Chief Executive. Applying the above principles, there was a need for creation of an offence of `wilful default' and mechanism for recovery of the same as is purported to have been done under section 5(r) of the Ordinance.?

The matter may be looked at from another angle as well. The mere fact that at the time of entering into an 'agreement no punishment was prescribed for default in payment of loam or bank dues, as the case may be, cannot possibly mean that the duty of the defaulter to re-pay the loan/dues also expired. The duty still remains. It continues till the loan/dues are re?paid as required under the agreement. Therefore, non-payment of loan/dues in terms of the agreement within the contemplation of section 5(r) is a continuing breach of duty or obligation, which itself is continuing if duty to re-pay the loan/dues as aforesaid continues from day to day and the non?performance of that duty/obligation from that point of view must be held to be a continuing default in the repayment of loan. Therefore, if it is continuing, there is a fresh starting point of limitation every day as the wrong continues. Viewed from this angle, there is no limitation and no question of retrospectivity, involved as long as the duty remains un-discharged.?

It is also instructive- to refer to section 23 of Limitation Act, 1908 which prescribes that in the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues. It is within the competence of the Legislature to treat a continuing wrong as an offence independent of the contract so that the offence so created is applicable to a case where there is a continuing breach of contract which has been converted into an offence, with a view to helping the general public at large

in that sphere. It could, therefore, be rightly urged that there will practically be no limitation of prosecution under section 5(r) of the Ordinance as long as the duty to re-pay the loan/debt/bank dues continues under an agreement or contract and the same remains undischarged. The offence contemplated under section 5(r) is the one which is committed over a span of time, therefore, the last act of the offender controls the innocence or otherwise of the party. The nature of default contemplated here is not the default which is committed once and for all. It is a continuous default. Thus on every occasion the default occurs and recurs, it constitutes an act or omission which continues and is therefore a fresh act. Looked at from this angle the offence contemplated under section 5(r) is not retrospective but prospective in nature.?

Article 12 of the Constitution does not deprive the Legislature of its power to give retrospective effect to an enactment, which the Legislature is competent to enact. It merely provides that no law shall authorise the punishment of a person for an act or omission that was not punishable by law at the time of the act or omission; or for an offence by a penalty greater than, or of a kind different from,- the penalty prescribed by law for that offence at the time the offence was committed. Seen in this perspective, the act of wilful default', is not an act or omission which was punishable by law at the time the same was committed but an act or omission committed 30 days ,after the promulgation of the Ordinance whereby the offence ofwilful default' under section 5(r) was created. As stated above, it was in the nature of a continuous wrong, which was converted into an offence prospectively i.e. in a case where such wrong/wilful default continued even after the expiry of 30 days of the promulgation of the impugned Ordinance and not retrospectively. In other words, it is a case where the punishment is prescribed in relation to the breach of a continuing duty which is not performed -even within 30 days after the coming into force of the Ordinance. By no stretch of imagination it could be termed retrospective in operation, particularly in view of the statement made by counsel of the Federation that no prosecution was launched in respect. of `wilful default' where re-payment of loan etc. was made good within 30 days of the promulgation of the Ordinance.

So far as the punishments and creation of offences by the Ordinance are concerned, they are protected by Article 12 of the Constitution, in that, under Article 12 of the Constitution ex post facto, legislation can neither create new offences nor provide for more punishment for an offence than the one which was available for it when committed. This is the limited impact of Article 12 of the Constitution. Therefore, the only prohibition as to retrospectivity of the offence, contemplated under clause (1) (a) (b) of Article 12 of the Constitution, is not attracted here. However, in order to ensure across-the-board accountability, Supreme Court ordered the following directions for the application of section 5 (r) of the Ordinance. The same shall be suitably incorporated in the Rules to be framed under section 34 of the Ordinance, which shall, on promulgation, become part of the Ordinance:

(i) No prosecution for wilful default' shall be launched before the expiry of 30 days' statutory notice and an additional 7 days' notice shall also be served on the alleged defaulter to satisfy Governor, State. Bank of Pakistan that he has not committed 'anywilful default'. The report of Governor, State Bank of Pakistan as to the prima facie guilt or innocence will be subject to the final decision of the Accountability Court. The same procedure will be followed with regard to recovery of other public dues falling within the contemplation of section 5(r) of the Ordinance. The Governor, State Bank of Pakistan, shall record his recommendations within 7 days with reasons therein.

(ii) Any settlement arrived at with the defaulters by the Chairman, National Accountability Bureau or compounding of any offence shall be subject to the decision of the Accountability Court.

(iii) In respect of any person who is being investigated under the Ordinance, if the final report after full investigation, is that no prima facie case is made out to proceed further and the case must be closed against him; that report must be promptly submitted to the Accountability Court concerned for its satisfaction that the concerned authorities have not failed to perform their legal obligations and have reasonably come to such conclusion. The final decision in the matter would be by the concerned Accountability Court. The Accountability Court shall conclude the trial expeditiously after giving fair opportunity to the accused.

(iv) Everyone against whom there is reasonable suspicion of commission of a crime under the National Accountability Bureau Ordinance is to be treated equally and if need be, proceedings may be held in camera to the extent necessary in public interest and to avoid prejudice to the accused.

(v) The concerned prosecuting agencies shall ' conduct their responsibilities and functions without being influenced by extraneous considerations.

(vi) The Chairman, National Accountability Bureau shall ensure reasonable and expeditious time-frame for the completion of investigation -and launching of prosecution.

(vii) The Chairman, National Accountability Bureau should take time? bound steps to establish a grievance redressal mechanism to promptly deal with the complaints received from the public against the Bureau.

(viii) While attending to nature of duty. and functions of the officer engaged in the investigation of an offence, the following observations made in Union of India and others v. Sushil Kumar Modi and others (1997) 4 SCC 770), be kept in view:

"4. At the outset, we would indicate that the nature of proceedings before the High Court is somewhat similar to those pending in this Court. in Vineet Narain v. Union of India ((1996) 2 SCC 199) and Anukul Chandra Pradhan v. Union of India ((1996) 6 SCC 354) and, therefore, the High Court is required to proceed with the matter in a similar manner. It has to be borne in mind that the purpose of these .proceedings is essentially to ensure performance of the statutory duty by the CBI and the other Government agencies in accordance with law for the proper implementation of the rule of law. To achieve this object a fair, honest and expeditious investigation into every reasonable accusation against each. and every person reasonably suspected of involvement in the alleged offences. has to be made strictly in accordance with law. The duty of the Court in such proceedings is, therefore, to ensure that the CBI and other Government agencies do their duty and do so strictly in conformity with law. In these proceedings, the Court is not required to go into the merits of the accusation or even to express any opinion thereon, which is -a matter for consideration by the competent Court in which the charge-sheet .is filed and the accused have to face trial. It is, therefore, necessary that- not even an observation relating to the merits of the accusation is made by the Court in these proceedings lest it prejudices the accused at the trial. The nature of these proceedings may be described as that of `continuing mandamus' to require performance of its duty, by the CBI and the other Government agencies concerned. The agencies concerned must bear in mind and, if needed, be reminded of the caution administered by Lord Denning in this behalf in R. v. Metropolitan Police Commr. (1968) 1 All ER 763/(1968) 2 QB 118). Indicating the duty of the Commissioner of Police, Lord Denning stated thus : (All ER p.769)

`I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State,...I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law. of the land. He must take steps so to post his men that crimes may be detected; arid that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be; bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not prosecute - this man or that one. Nor can any police authority tell him, so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.'

The nature of such a proceeding in a Court of law was also indicated by Lord Denning, as under

`A question may be raised as to the machinery by which he could be compelled to do his duty. On principle, it seems to me that once a duty exists, there should be a means of enforcing it. This duty can be enforced. I think, either by action at the suit of the Attorney-General; or -by the prerogative order of mandamus.."

(ix) Unless a competent prosecution, follows a fair and competent investigation, the ultimate analysis would be violative of the principle of fair trial. A panel of competent lawyers 'of experience and impeccable reputation should be prepared with the advice of Ministry of Law, Justice and Human Rights. Their services should be utilised as prosecuting lawyers in cases of significance on reasonable remuneration. For terms and conditions of their services, guidance may be sought from the Central Law Officers Ordinance, 1970, prescribing method for the appointment of Standing Counsel and Deputy Attorney-Generals.

Adoption of the above course shall not affect the initiation of investigation and ' its continuation. to its logical end or the proceedings pending before any authority/Court under National Accountability Bureau Ordinance. These instructions are being issued under Article 37 read with Article 187 of the Constitution, which empowers Supreme Court to issue any appropriate directions, orders or decrees, as may be necessary for doing complete justice in any case or matter pending before it which are enforceable throughout Pakistan.?

(t) Public life---

----Principles enumerated.

Following are the seven principles of public life:

(i) Selflessness: Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves:

(ii) Integrity: Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that influence them in the performance of their official duties. '

(iii) Objectivity: In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

(iv) Accountability: Holders of public office are , accountable for their decisions and actions to -the public and must submit themselves to whatever scrutiny is appropriate to their office.

(v) Openness: Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

(vi) Honesty: Holders of public office have a duty to declare. any. private interests relating to their public duties and to take steps to resolve any conflicts arising in a way- that protects the public interest.

(vii) Leadership: Holders of public office should promote and support these principles by leadership and example.?

Lord Nolan's Report (1995), Vol. I, titled: "Standards in Public

Life" quoted.'

(u) National Accountability Bureau Ordinance (XVHI of 1999)---

----S.37---Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art. 184(3) of the Constitution before Supreme Court--Vires of National Accountability Bureau Ordinance, 1999---Removal of difficulties---Supreme Court directed that suitable amendments shall be made in S.37, of the Ordinance to provide for consultation by the. President of Pakistan with the Chief Justice of Pakistan for modifications; additions or omissions.?

(v) National Accountability Bureau Ordinance (XVIII of .1999)---

----S.12---Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art. 184(3) of Constitution of Pakistan (1973), before. Supreme Court ---Vires of National Accountability Bureau Ordinance, 1999---Freezing the property of accused by Chairman of the Bureau---Validity---Provision of S.12, National Accountability Bureau Ordinance, 1999 so far as it vests the power in Chairman of the Bureau. to pass an order of seizure, freezing, attachment or prohibitory order by taking possession, or by appointment of receiver, or prohibiting the payment of rent or delivery of property to the accused or to any other person on his behalf which shall remain in force for a period not exceeding thirty days, suffers from excessive delegation, ends of justice would be fully met if the period contemplated under the first proviso to cl.(c) of S.12 is curtailed to fifteen days---Provisions contained in S.12(f) that the order of freezing mentioned in S. 12(a) to (e) shall, as the case may be, remain operative until final disposal by the Accountability Court or the Appellate forum impinge upon the independency of judiciary and suffers from excessive delegation in that it is for the Accountability Court alone to determine the period of duration during which the freezing shall remain operative till final disposal of the reference by the Accountability Court---Provision of S.12(t) of the, Ordinance makes operative the freezing order notwithstanding filing, or pendency of appeal under, the Ordinance which is against the concept bf independence of judiciary -- Ends of justice will be fully met if cl.(f) of S.12 of the Ordinance providing for continuation of freezing of property after the accused has been' acquitted is suitably amended to provide for continuation of such freezing for a period not exceeding ten days to be reckoned from the date of receipt of the certified copy of the order to enable the Bureau for filing an appeal against the acquittal order and thereafter it would be for the appellate forum to pass appropriate orders.

Section 12 of the National Accountability Bureau Ordinance, 1999 confers upon the Chairman, National Accountability Bureau, the unchallengeable power to freeze the property of an accused. The power to deprive an individual of the legitimate use of. his property is .no minor concern but is one which goes to the root of the case., .It is the duty of the superior Courts to protect citizens from being deprived of their liberty and property, except in accordance with the Constitution and the laws, subject to reasonable restrictions. Section 12, insofar as it vests the power in the Chairman to pass any order of seizure, freezing, attachment or prohibitory order by taking possession, or by appointment of receiver, or prohibiting the payment of rent or delivery of property to the accused or to any other person on his behalf, which shall remain in force for a period of not exceeding thirty days, suffers from excessive delegation. The ends of justice would be fully met if the period contemplated under the first proviso to clause (c) of section 12 is curtailed to fifteen days. Likewise, the provisions contained in clause (1) thereof that the order of freezing mentioned in section 12(a) to (e) shall, , as the case may be, remain operative until final disposal by the Accountability Court or the Appellate Forum impinge _ upon the Independence of Judiciary and suffers from excessive delegation in that it is for the Accountability Court alone to determine the period of duration during which the freezing shall remain operative till final disposal of the reference by the Accountability Court. Similarly, clause (t) also makes operative the freezing order notwithstanding filing or pendency of appeal under the Ordinance. This provision is against the concept of Independence of Judiciary. It is true that section 12 (a)(c)(iv) of the Ordinance provides for interlocutory measure to ensure that property relating to the accused is not dealt with by him or on his behalf pending investigation. Similar provisions exist in other laws, in respect of civil as well as criminal liability. Rules 1 and 2, Order XXXIX of the Code of Civil Procedure provide for passing of such orders. Section 37(2) of the Control of Narcotic Substances Act, 1997 and the Criminal Law Amendment Act, ~ 1964 also contemplate powers to freeze property. Nevertheless, it is for the Appellate Court alone to decide having regard to the merits of each case justly. fairly and in accordance with law whether or not the order of freezing shall remain operative upon filing of or during the pendency of an appeal under the Ordinance. However, the ends of justice will be fully met if clause (f) of section 12 of the Ordinance providing for continuation of freezing of property after the accused has been acquitted is suitably amended to provide for continuation of such freezing for a period not exceeding ten days to be reckoned from the date of receipt of the certified copy of the order to enable the National Accountability Bureau for tiling an appeal against the acquittal order. Thereafter it would be for the appellate forum to pass appropriate

?

(w) National Accountability Bureau Ordinance (XVIII of 1999)---

----S.13(c)---Constitution of Pakistan (1973), Arts.2A & 184(3)--?Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ---Vires of National Accountability Bureau Ordinance, 1999---Appeal against order of freezing etc. ---Provision of S. 13(c) which relates to claim or objection against freezing denies the right of appeal against an order made under S.12 of the Ordinance---Validity---Purported denial of the right of appeal is violative not only of Art.2A of the Constitution but also power of the superior Courts to correct such orders through exercise of that Constitutional jurisdiction, clearly the denial of right of appeal is contrary to the norms of justice as -also violative of principles of natural justice--?Provision of S. 13(c) of the Ordinance which denies the right ,of appeal is violative of principles of Islamic Injuctions and the same needs to be suitably amended so as to allow right of appeal to the accused as well as to the non-?accused/third party whose claim or objection against freezing of property is dismissed by the Accountability Court.

The purported denial of the right of appeal is violative not only of Article 2A of the Constitution but also power of the superior Courts to correct such orders through exercise of their Constitutional. jurisdiction. Clearly, the denial of right of appeal is contrary to. the norms of justice as also violative of principles of natural justice. Thus, ..section 13(c) which denies the right of appeal is violative of the principles of the Islamic Injunctions and the same needs to be suitably amended so as to allow right of appeal to the accused as well as to, the non-accused/third party whose claim or objection against freezing of property is dismissed by the Accountability Court.

(x) National Accountability 'Bureau Ordinance (XVM of 1999)---

----S.14(d)---Constitution of Pakistan (1973), Art. 184(3)---Constitutional petition under Art. 184(3) before Supreme Court ---Vires of National Accountability Bureau Ordinance, 1999:--Burden of proof placed on the person accused of an offence under S.9(a)(vi) of the Ordinance ---Validity--?Supreme Court, for safer administration of justice and in the interest of good governance, efficiency in the administrative and organizational set up issued the directions for effective operation of S. 14(d) of the Ordinance to the effect that the prosecution shall first make out a reasonable case against the accused charged under S.9(a)(vi) & .(vii) of the Ordinance and in case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt.

Under section 14(d) of the National Accountability Bureau Ordinance, 1999 the burden of proof has been placed on the person accused of an offence under. section 9 (a) (vi) and (vii) of the Ordinance. Placing ofburden of proof on an accused is not an unfamiliar concept in legal parlance. There is a large number of Statutes wherein the burden of proof' has been placed on the accused.?

Where burden of proof' s placed. or presumptions are raised by a law on a class of persons that it creates, then as long as such presumptions are raised orburden of proof is placed uniformly in respect of persons to whom such a law applies, there is no violation of the equality clause/s of the ,Constitution. Laws raising presumptions against and placing onus of proof upon an accused have repeatedly been challenged in various jurisdictions and it has consistently been the view of Courts that subject to their uniform application and there being a rational connection between the facts presumed and the facts proved, such laws are valid.?

Article 121 of the Qanun-e-Shahadat, 1984, also places burden of proof on the accused.?

A bare perusal of Article 121, Qanun-e-Shahadat, 1984 would show that the onus to prove innocence may be shifted on to the accused, where existence of certain circumstances bringing his case within the ambit of general or special exceptions contained in the Pakistan Penal Code, is necessary ' to be proved for getting an acquittal, absence of which' shall be presumed by the Court. Supreme Court therefore declined to hold that where a person is accused of aR offence and the burden of proving innocence is shifted on to him having regard to the peculiar circumstances mentioned in any provision of law, the same can be derogatory to ordinary dispensation of criminal justice or violative of Articles 4 and 25. of the Constitution.

Matters relating to remedy, mode of trial, the manner of taking evidence and forms of actions are all matters relating to procedure- Only a matter of procedure would be retrospective. However, if in this process any existing rights are affected on the basis of a statute the same would not operate. retrospectively unless the Legislature' had either by express enactment or necessary intendment given the legislation retrospective effect. Viewed from whatever angle the placing of burden of proof on the accused, in the facts and circumstances of the case in juxtaposition with section 14(d) of the Ordinance falls within the realm of procedural law. Thus visualized, the plea that the ratio of Nabi Ahmed's case PLD 1969 SC 599 is applicable to all situations in the realm of substantive law, cannot .stand a detailed scrutiny thereof. Even the assertion that Nabi Ahmed's case PLD 1969 SC 599 was followed in Bhai Khan's case PLD 1992 SC 14 by a learned Single Judge of the Lahore . High Court, Lahore and therefore, it should be considered as applicable to the facts and circumstances of the present lis 'as well, also falls in the same category. Clearly, the cases of Nabi Ahmed PLD 1969 SC 599 and Bhai Khan PLD 1992 SC 14 are distinguishable and confined to the facts and circumstances of those cases.

The Accountability Courts have been established to deal exclusively with corruption and corrupt practices and hold accountable those accused of such practices and matters ancillary thereto so that cases can be decided speedily as also to guard against delays in investigation and to forestall the acts of the suspects who have been able to abuse the process of law by stalling investigations at initial stages through litigation of sorts. As to the validity of section 14(d), that if a holder of public office or any other person has issued any directive, policy or SRO (Statutory Regulatory Order) or any other order which grants or enables any undue concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar or any other person is concerned, suffice it to say that there may be cases where the accusation cannot be supported by direct evidence and is a matter of inference of corrupt motive for the decision with nothing to prove directly any illegal gain to the decision maker. To protect decision making level officers and the officers conducting inquiry/investigation from any threats, appropriate measures must be taken to relieve them of the anxiety from the likelihood of harassment for taking honest decisions.

Viewed torn t~ he above context although shifting of burden of Proof on an accused in terms of section 9(a)(vi)(vii) read with section 14(d) may not be bad in law in its present form, but would certainly be counter?productive in relation to the principle of good governance. If decision making level officials responsible for issuing orders, SROs etc. are not protected for performing their official acts in good faith, the public servants and all such officers at the level of decision making would be reluctant to take decisions and/or avoid or prolong the same on one. pretext or another which would ultimately lead to paralysis of State-machinery. Such a course cannot be countenanced by Supreme Court.

Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This interpretation appears to be reasonable in the context of the background of the Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. The above provisions do not, constitute ' a bill of attainder, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and to the interest of good governance, efficiency in the administrative and organizational set up, it is necessary to issue the following directions for effective operation of section 14(d):

(1) The prosecution shall first make out a reasonable case against the accused charged under section 9 (a)(vi)) ) and (vii) of the National Accountability Bureau Ordinance, 1999.

(2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt.?

State of Madras v. A. Vaidyaitatha iyer PLD 1958 SC'(Ind.) 264; Muhammad Siddiq v. The State 1997 SCMR 503; Ghulam Ali v. The State PLD 1963 (W.P.) Kar. 582; Mir Ahmed v. The State PLD 1962 SC 489; Ghulam Muhammad v. The State 1980 PCr.LJ 1039; Badshah Hussain v. The State 1991 PCr._LJ 2299; Abdul Razak Rathore v. The State PLD 1992 Kan 39; Shabbir Ahmed v. The State PLD 1996 Kar.537; The State of West Bengal v. The. Attorney-General for India, Intervener AIR 1963 SC 255; LIMA Declaration made at the conclusion of 8th International Anti-Corruption Conference in LIMA (Peru) in September, 1997; and Liaqat Parvez Khan v. Government of the Punjab through Home Secretary PLD 1992 Lah. 517 ref.

Nabi Ahmed's case PLD 1969 SC 599 and Bhai Khan's case PLD 1992 SC 14 distinguished. .

(y) Interpretation of statutes--?----

Retrospectivity---Only a matter of procedure would be retrospective, however, if in the process any existing rights are affected on the basis of a statute the same would not operate retrospectively unless the Legislature had either by express enactment or necessary intendment given the legislation retrospective effect.?

(z) Criminal trial---

Matters relating to remedy, mode of trial, the manner of taking evidence and forms of actions are all matters relating to procedure.?

(aa) National Accountability Bureau Ordinance (XVIII of 1999)---

----S.15(a)---Constitution of, Pakistan (1973), Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ---Vires of National Accountability Bureau Ordinance, 1999---Disqualification to contest emotions or to hold public office---Validity---Provision of S. 15(a) of the Ordinance providing disqualification from being elected, chosen, appointed or nominated as a member or representative of any public office or any statutory or local authority of the Government of Pakistan for a period of 21 years is too excessive and the same be suitably amended so as to, provide disqualification for a period of 10 years to be reckoned from the date the convict is released after serving his sentence---Proviso to cl. (a) of S.15 of the Ordinance providing disqualification for 21 years shall also be suitably amended to provide disqualification for 10 years to be reckoned from the date the convict is discharged of his liabilities relating to matter on transaction in issue.

The provision of clause (a) of section 15 of the National Accountability Bureau Ordinance, 1999 providing disqualification from being elected, chosen, appointed or nominated as a member or representative of any public office, or any statutory or local authority of the Government of Pakistan for a period of 21 years is too excessive and the dame be suitably amended so as to provide disqualification for a period of 10 years to be reckoned from the date the convict is released after serving his sentence.

The proviso to clause (a) of section 15 providing disqualification for 21 years shall also be suitably amended to provide disqualification for 10 years to be reckoned from the date the convict is discharged of his liabilities relating to matter on transaction in issue.?

(bb) National Accountability Bureau Ordinance (XVIII of 1999)---

----S.16(d)---Constitution of Pakistan (1973), Art. 184(3)---Constitutional petition under Art. 184(3) before Supreme Court ---Vires of National Accountability Bureau Ordinance, 1999---Trial of offences---Venue of trial---Determination of venue of trial under the Ordinance in term of S. 16(d) does not contravene the concepts of 'federalism' and/or Provincial autonomy---Principles.

The relevant. question reads: "Whether section 16(d) of the impugned Ordinance which authorises the Chairman, National Accountability Bureau to select the venue of the trial by filing a reference before any Accountability Court established anywhere in Pakistan suffers from excessive delegation?

It is true that ordinarily, the jurisdiction to try a person for an offence does not depend upon the 'place where the offender is found, but the place where crime is committed. Generally speaking, all crime is local.. These principles are also enshrined in the general law relating to proceedings in criminal prosecution and jurisdiction of the criminal Courts as also trials. Section 177, Cr.P.C. also provides that every offence ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it is committed. However, notwithstanding the above provision, the Provincial Government under section 178, Cr.P.C. may direct that any cases or class of cases in any district sent for trial to a Court of Session, may be tried in any Sessions Division provided such direction is not repugnant to any .direction previously issued by the High Court under section 526, Cr.P.C. or any other law for the time being in force. Thus, the determination of venue of trial under the Ordinance in terms of section 16(d) does not contravene the concepts of 'federalism' and/or Provincial autonomy.?

(cc) National Accountability Bureau Ordinance (XVIII of 1999)---

----S.16A(b)(i) & (ii)---Constitution of Pakistan (1973), Arts.4 & 184(3)--?Constitutional petition under Art.184(3) of the Constitution before Supreme Court---Vires of National Accountability Bureau Ordinance, 1999---Transfer of cases---Validity---Provision of S.16(a)(b)(i) & (ii), insofar as it denies access to an accused person for the redress of his grievance in the matter of transfer of a case from one Court to another, is ultra vires the Art.4 of the Constitution, which envisages the right of access to justice to all, which is equally founded in the doctrine of 'due process of law'---Transfer of cases from one Court to another, either within a Province or from one Province to another, as contemplated under S. 16A of the Ordinance, the prosecutor and the accused must be placed on equal footing and to this extent, S. 16A is ultra vires the Constitution and needs to be suitably amended---Principles.

Article 175 of the Constitution provides for the establishment and jurisdiction of the Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law. Apart from establishment of the Courts as aforesaid, the Constitution or the law may provide for the subjects in respect of which that power may be exercised and the manner of exercise of such power. It may demarcate/identify the territories/place or places in which a particular Court shall function. It may specify the persons in respect of whom the judicial power to hear and determine will be exercisable. Put differently, it may provide for the subject-matter over which the judicial power is to be exercised, the manner of exercise of jurisdiction, the right to adjudicate upon a particular subject ?matter and the authority to exercise in a particular manner.

Article 175 (3) provides that the Judiciary shall be separated progressively from the 'Executive within 14 years from the commencing day. After expiry of the stipulated period, the cut-off date of 23rd March, 1994, had been given by the Supreme Court to enable the Provincial Governments to finalise separation of Judiciary from the Executive. Guidelines for achieving this objective as well as financial independence of the Judiciary were also laid down by Supreme Court in the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105).

Article 203 of the Constitution provides that the supervision and control over the subordinate Judiciary exclusively vests in the High Court concerned. It comprehends all supervisory powers both judicial as well as administrative as to the working of the subordinate Courts including .the disciplinary matters. Any provision in any law, direction or order empowering any executive functionary to have administrative supervision and control over the subordinate Judiciary either directly or indirectly, would militate against the concept of separation of powers and independence of Judiciary as envisaged under Article 175 and the Objectives Resolution. It would thus be seen that even under the general law, the power to order cases to be tried at different places falls within the domain of executive authority, which could not be termed as violative of judicial independence. Article 203 of the Constitution is applicable to the Courts under the National Accountability Bureau Ordinance, 1999 and such Courts are subordinate to the High Courts and therefore the power of superintendence vested in the High Court prevails over these Courts within the hierarchy of the Courts of the country and for the purposes of the Constitution. The High Court, in appropriate proceedings whenever it is made to appear to it that a fair trial cannot be held before any Accountability Court at a particular place and it is expedient for the ends of justice that any offence under the Accountability Court other than the Court seized of the matter, may transfer the case accordingly.

Section 16A (b) (i) and (ii) of the National Accountability Bureau Ordinance, 1999 purports to achieve the above objective by empowering Chairman, National Accountability Bureau to direct the Prosecutor-General Accountability to apply for transfer of a case from any such Court in one Province to a Court in another Province or from one Court to a Court in another Province or from one Court in a Province to another Court in the same Province. The above section, however, does not meet the ends of justice, in that, the Chairman, National Accountability Bureau has beer. given the choice to make a move before the appropriate Chief Justice through the Prosecutor-General, but Such right is not available to the accused.

The above provision, insofar as it denies access to an accused person for the redress of his grievance in the matter of transfer of a case from one Court to another, is ultra vires the Article 4 of the Constitution, which envisages the right of access to justice to all, which is equally founded in the doctrine of due process of law'. The right of access to justice includes the right to be treated in accordance with law, the right to have a fair and proper trial and the right to have' an impartial Court or Tribunal. Without having an independent Judiciary, the Fundamental Rights enshrined in the Constitution will be meaningless. Equality pf citizens gives rise to two basic questions: first, to what extent the Legislature can delegate legislative functions to other bodies; and secondly, what control the Judiciary can exercise over departmental Tribunals? As to the first, the rule is that while the Legislature cannot confer on any other body power to make whatever laws it likes, it can, by its Acts, define the outline of the legislative power within the limited field to carry out the purposes of the legislation. The Legislature cannot frame such law as may bar right of-access to Courts of law and justice. Any law, which denies the right of access to Courts and justice, is violative of Article 25 of the Constitution. It is true that the expression,equal protection of law', does not place any limitation on the power of the State to make reasonable classification of citizens in that regard, but if such classification is without any reasonable basis, it would tantamount to denying that right to a category of persons and the same being discriminatory is liable to be struck down.

The rule regarding holding an open trial is not rigid and inflexible nor could it be pressed to its breaking point in defeating very ends of justice. The Presiding Officer or the Magistrate concerned is empowered to forbid access of the public generally or any particular person remaining in Court at any stage of inquiry or trial for sufficient reasons in interests of administration of justice.?

Resultantly, in the matter of, transfer of cases from one Court to another, either within a Province or . from one Province to another, as contemplated under section 16A, the prosecutor and the accused must be placed on equal footing. To this extent, section 16A is declared ultra vires the Constitution and needs to be suitably amended.?

Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; AI-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Jibendranath Kishore Acharya Chaudhry v. Province of East Pakistan PLO 1957 SC (Pak.) 9; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 and Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 ref.

(dd) National Accountability Bureau Ordinance (XVIII of 1999)---

----S.17(c)---Constitution Pakistan (1973), Arts.4, 25 & 184(3)--?Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ---Vires of National Accountability Bureau Ordinance, 1999---Power of the Accountability Court to dispense with any provision of Code of Criminal Procedure---Validity---Provision of S. 17(c) of the Ordinance is not violative of Arts.4 & 25. of the Constitution---Principles---Accountability Court under S.17(c) of the Ordinance, however shall not exercise its discretion arbitrarily but on sound judicial principles by assigning reasons

The Court's power to dispense with a provision of Criminal Procedure Code is not uncontrolled and will be governed by the principles enshrined in section 24A, General Clauses Act, 1897. If the Accountability Court deems lit to make departure from the provisions of the Criminal Procedure Code reasons will have to be recorded in writing under the section. In appropriate cases such reasons are justiciable in the exercise of Constitutional jurisdiction of the superior Courts at the instance of an aggrieved party. Section 164 of the Qanun-e-Shahadat provides that: "In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques".

In terms of the provision of section 17(c) of the National Accountability Bureau Ordinance, 1999 an Accountability Court shall not exercise its discretion arbitrarily but on sound judicial principles by assigning valid reasons. Section 17(c) is not violative of Articles 4 and 25 of the Constitution.?

(ee) National Accountability Bureau Ordinance (XVIII of 1999)---

----S.18---Constitution of Pakistan (1973), Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution before Supreme Court---Vires of National Accountability Bureau Ordinance, 1999---Cognizance of offences by the Accountability Court---Validity---No excessive delegation of power having been found in S.18 of the Ordinance, the same was a valid piece of legislation.

The offences under the National Accountability Bureau Ordinance, 1999 are special in nature and their investigation and inquiry extends to complicated transactions; bank accounts and books of account for which aid of experts may be required by investigating authority to unearth and detect such offences. It is, therefore quite reasonable as well as practical that the investigating agency should first thoroughly inquire into suspected offences and then decide whether or not to refer the same to an Accountability Court. There is, therefore, no excessive delegation of power in the above section. It tray be observed that the Ehtesab Act, 1997 also contained a similar provision, which was declared to be a valid piece of legislation by Supreme Court in Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26.?

Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26 ref.

(ff) National Accountability Bureau Ordinance (XVIII of 1999)'---

----S.24(d)---Constitution of Pakistan (1973), Art. 184(3)---Constitutional petition Under Art. 184(3) of the Constitution before Supreme Court ---Vires of National Accountability Bureau Ordinance, 1999---Arrest, detention and remand of the accused---Validity---Provision of S.24(d) of the Ordinance is ultra vires to the extent that same denies the right of the accused to consult and be defended by a legal practitioner of his choice, to this extent cl.(d) of S.24 of the Ordinance requires to be suitably amended, outer limit of 90 days fixed in cl. (d) of S.24 of the Ordinance appears to be excessive, prolonged -detention of an accused without sufficient cause for such detention, makes an inroad on the personal liberty of citizens as guaranteed under the Constitution which cannot be countenanced---Supreme Court directed that S.24(d) of the Ordinance be further amended to the extent that Accountability Court shall not remand an accused person to custody under S.24(d) for a term exceeding fifteen days at a time; if sufficient and reasonable. cause appears for further remand, after the expiry of the first fifteen days, the accused shall be brought before the Court for appropriate orders and that in no case, each remand shall be for a period more than fifteen days at a time and the Court passing order of remand shall forward a copy of such order with reasons for making it to the High Court concerned---Proviso to cl. (d) of S.24 of the Ordinance insofar as it contains the provision that "no accused arrested under the Ordinance shall be released without the written order of the Chairman, National Accountability Bureau is ultra vires being repugnant to the concept of Independence of Judiciary, suitable amendment be made so as to delete the words "without the written order of the Chairman, NAB or".

Article 10 of Part II of the Constitution provides safeguards as to arrest and methodology for the production of an accused before a Magistrate, communication of grounds, rights of the accused to be defended by counsel, arrest under detention law, constitution of Review Board, proceedings before Review Board and maximum period of detention. In the present case Court is not dealing with a law regarding preventive detention and, therefore, the provisions relating thereto in Article 10 of the Constitution are not relevant for the purpose of the controversy raised herein. The provisions of clause (d) of section 24 of the Ordinance are in substantial compliance of the provisions of clauses (1) and (2) of Article 10 of the Constitution. However, the above clause is ultra vires to the extent that it denies the right of the accused to consult and be defended by a legal practitioner of his choice. To this extent clause (d) of section 24 of National Accountability Bureau Ordinance, 1999 requires to be suitably amended.

It is true that in terms of sections 167 and 344, Cr.P.C. when an accused is arrested he is bound to be produced before a Magistrate within a period of twenty-four hours and beyond such period police cannot detain him without seeking permission from a Magistrate and that no Magistrate can remand an accused to custody for a term exceeding fifteen days at a time, respectively. It is also well established that remand is not to be granted in routine and the liberty of citizens must be protected subject to the law and the Constitution. It is provided in National Accountability Bureau Ordinance, 1999 that Cr.P.C. applies subject to any inconsistency with the Ordinance. The provisions contained in clause (d) of section 24 of the Ordinance, insofar as they relate to the remand of an accused, are inconsistent with the provisions of the Cr.P.C. inasmuch as under sub?section (1) of section 344 of the Cr.P.C. the maximum period of remand is fifteen days. Several provisions of the Ordinance are inconsistent with what has been laid down in Cr.P.C. But, as pointed out above, the Cr.P.C. is applicable subject to any inconsistency with the Ordinance. Therefore, the mere fact that subsection (1) of section 344, Cr.P.C. provides maximum remand for a period not exceeding fifteen days at a time, does not, ipso facto, confer a right on a person accused of an offence under National Accountability Bureau Ordinance, 1999 to be detained for a period of not more than fifteen days at a time. Explanation added to subsection (2) of section 344, Cr.P.C. can be referred which provides that if sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and it appears likely that further evidence may be obtained in that behalf, this is a reasonable cause for a remand.

Under section 24(d), a maximum period of 90 days is provided for detention in connection with investigation etc., which is not automatic or the accused is to be detained for 90 days straightaway. Generally, the accused is produced before the Court after every 10/ 15 days, in some cases even with an interval of 3-4 days, and the Court, keeping in view the facts and circumstances of the case, determines the period of further custody. It is reasonable if the accused is directed to be produced before the Court after every 15 days or earlier keeping in view the facts and circumstances of each case, for appropriate orders.

Be that as. it may, it is the duty of Supreme Court to jealously safe guard the liberty of the citizens and to strike down a law, or suggest amendment thereto for protecting the same or avoiding undue harassment to them.

Outer limit of ninety days fixed in clause (d) of section 24 of National Accountability Bureau Ordinance, 1999 appears to be excessive. Prolonged detention of an accused without sufficient cause for such detention, makes an inroad on the personal liberty of citizens as guaranteed under the Constitution, which cannot be countenanced by Supreme Court.

Clause (d) of section 24 of the Ordinance be also amended to the extent that the Accountability Court shall not remand an accused person to custody under clause (d) of section 24 of the Ordinance for a term exceeding fifteen days at a time. If sufficient and reasonable cause appears for farther remand, after the expiry of the first fifteen days, the accused shall be brought before the Court for appropriate orders and that in no case, each. remand shall be for a period more than fifteen days at a time. The Court passing order of remand as referred to above, shall forward a copy of such order with reasons for making it to the High Court concerned. Suitable amendments be made accordingly.

The Chairman, National Accountability Bureau cannot, under any principle of jurisprudence, simultaneously assume the role of prosecutor and Judge. The power of judicial review and the matters relating to the administration of justice solely vest with the judiciary and such powers cannot be entrusted to the National Accountability Bureau being violative of the very concept of Independence of Judiciary: '

The proviso to clause (d) of. section 24 insofar as it contains the provision that: ??.no accused arrested .under this Ordinance shall be released without the written order of the Chairman, National Accountability Bureau?.is ultra vires being repugnant to the concept of Independence of Judiciary. Suitable amendment be made so as to delete the words ?without the written order of the Chairman, NAB or".?

(gg) National Accountability Bureau Ordinance (XVIII of 1999)---

----S.24(a)---Constitution of. Pakistan (1973), Art. 184(3)-7-Constitutional petition under Art. 184(3) of the Constitution before. Supreme Court ---Vires of National Accountability Bureau Ordinance, 1999---Inquiries and investigation of the accused---.Validity---Powers conferred by S.24(a) of the Ordinance are part of normal powers relating to inquiries and investigation, however, while exercising powers under.S.24(a) of the Ordinance the Chairman, National Accountability Bureau shall consider the facts and circumstances of each case justly, fairly, equitably, in accordance with law and in conformity with the provisions of S.24A of the General Clauses Act, 1897 and not in a discriminatory manner---Any such order passed by the Chairman is subject to correction in appropriate cases by the superior Courts in the exercise of their Constitutional jurisdiction---Provision of S.24(a) is ex facie not ultra vires the Art.25 of the Constitution.

The powers conferred by the provision of section 24(a) of the Ordinance ate part of normal powers relating to inquiries and investigation. Similar powers are conferred upon Police Officers by the Criminal Procedure Code under section 54 thereof. However, there is no doubt that while exercising powers under section 24(a) of the Ordinance the Chairman National Accountability Bureau shall consider the facts and circumstances of each case justly, fairly, equitably, in accordance with law and in conformity with the provisions of section 24A of the General Clauses Act, 1897 and not in a discriminatory manner. Any such order passed by him is subject to correction in appropriate cases by the superior Courts in the exercise of their Constitutional jurisdiction. It is, therefore, difficult to hold that section 24(a) is ex facie ultra vires the Article 25 of the Constitution.?

(hh) National Accountability Bureau Ordinance (XVIII of 1999)---

----S.24(c)---Constitution of Pakistan (197.3), Art.184(3)---Constitutional petition under Art. 184(3) of the Constitution before Supreme Court---Vires of National Accountability Bureau Ordinance, 1999---No element of retrospectivity in cl.(c) of S.24 of the Ordinance having been found, same was not ultra vires the Constitution.?

(ii) National Accountability Bureau Ordinance (XVIII of 1999)---

----S.23---Constitution of Pakistan (1973), Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ---Vires of National Accountability Bureau Ordinance, 1999---Prohibition on transfer of property ---V,4lidity---Provision of S.23 is not in conflict with Arts.2A, 4, 23; 24 & 25 of the Constitution of Pakistan, in that, reasonable restrictions in the public interest may be imposed by a law on the right to hold, acquire or dispose of property and National Accountability Bureau Ordinance by its very nature is a law relating to acquisition and retention of ill-gotten property and to recover the same---Supreme Court, however, directed that S.23 be suitably amended to reflect that transfer of property by an accused person or any relative or associate of such person or any other person on his .behalf or creation of a charge on any movable or immovable property owned by him or in his possession, while-the inquiry, investigation or proceedings are pending before the National Accountability Bureau or the Accountability Court, shall not be void if made with prior approval in writing of the Judge, ;Accountability Court, subject to such terms and conditions as the Judge may deem fit in consonance with the well established principles of law for passing interlocutory orders in consonance with the objects of the It was contended that insofar as section 23 prohibits transfer of property merely because an investigation has been initiated at the discretion of the Chairman, National Accountability Bureau it is violative of Articles 23 and 24 of the Constitution which guarantee rights to property. Insofar as the above section makes any such transfer void even though both the transferor and the transferee be genuinely unaware of such investigation, the section offends Articles 2A, 4, 23, 24 and 25 of the Constitution. The above provision is not in conflict with the aforementioned Articles of the Constitution, in that, reasonable restrictions in the public interest may be imposed by a law on the right to hold, acquire or dispose of property. The National Accountability Bureau Ordinance, 1999, by its very nature, is a law relating to acquisition and retention, of ill-gotten property and to recover the same.

Furthermore, section 23 is an interlocutory measure to prevent persons accused of such offences to frustrate the objects of law by creating, thud party interest in respect of illegally acquired property, thereby creating hurdles in the object of law i.e. to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto. The purpose of this- power is more to preserve the property acquired by the accused through corruption and corrupt practices so that ultimately if the guilt is proved the same can be taken back from him in accordance with law. Section 23 of the National Accountability Bureau Ordinance, 1999 is also preventive in nature and prescribes penalties for the accused person who attempts to alienate or transfer by any means property after the Chairman, National Accountability Bureau has initiated investigation, inquiry or proceedings have commenced against him in an Accountability Court. Put differently, it is in the nature of a restraint order. The protective measures are not by way of punishment but with a view to ensure that the final decision is not rendered redundant.

Additionally, somewhat similar provisions are contained in section 7 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 which provides that: ".After a Special Court has taken cognizance of a_ scheduled offence alleged to have been committed by an accused person, such person or any relative of such person or other person on his behalf shall not, without the previous permission in writing of the Special Court, transfer, or create a charge on, any movable or immovable property owned by him or in his possession, while proceedings are pending before the Special Court; and any transfer of, or creation of a charge on such property without such permission shall be void". Viewed in this perspective, transfer. of property by the accused or his relatives etc. seems permissible with the approval of the Court. Supreme Court, therefore, directed that section 23 be suitably amended to reflect that transfer of property by an accused person or any relative or associate of such person or any other person on his behalf or creation of a charge on any movable or immovable property owned by him E

or in his possession, while the inquiry, investigation or proceedings are pending before the National Accountability Bureau or the Accountability Court, shall not be void if made with prior approval in writing of the Judge, Accountability Court, subject to such terms and conditions as the Judge may deem fit in consonance with the well‑established principles of law for passing ‑ interlocutory orders in consonance with the objects of the Ordinance.?

(jj) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑[As amended], Preamble‑‑‑Ordinance by its very nature is a law relating to acquisition and retention of ill‑gotten property and to recover the same.?

(kk) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S.25‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑‑Constitutional petition under Art. 184(3) of the Constitution before Supreme Court‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑‑Plea bargaining‑‑?Validity‑‑‑Plea bargaining envisaged under S.25 of the Ordinance is to be encouraged but it is not desirable in cases opposed to the principles of public policy‑‑‑Chairman, National Accountability Bureau/Governor, State Bank of Pakistap, while involved in plea bargaining negotiations, should avoid using their position and‑authority for exerting influence and undue pressure on parties to arrive at settlement ‑‑‑Any type of alternate resolution like the `plea. bargaining' envisaged under S.25 of the Ordinance is to be encouraged in the interest of revival of economy and recovery of outstanding dues‑‑?Accused can be persuaded without pressure or threat to agree on a settlement figure subject to the provisions of the Ordinance‑‑‑Establishing such procedure at the investigation/inquiry stage greatly reduces determination of such disputes by the Court‑‑‑Plea bargaining/compromise being in the nature of compounding the offences, the same should be subject to approval of the Accountability Court‑‑‑Supreme Court directed that S.25 of the Ordinance be suitably amended.

A perusal .of the Preamble of the National Accountability Bureau Ordinance, 1999 shows that it is a composite and an extensive law and its interpretation has to be done in a manner different, from the normal interpretation placed on purely criminal statutes. This law deals with, among others, setting up of the National Accountability Bureau, which is an executive as well as administrative authority and an investigating agency; which deals with several aspects of `corruption', etc. The National Accountability Bureau does not merely deal with crimes of corruption, it also deals with their investigation and settlement out of Court. Bargain out of Court is now an established method by which things are settled in several developed societies. It was necessary in‑ cases where the criminal is a potential investor and is inter‑linked with the economy of the society, he should be given an opportunity to play his role in, the society after he has cleared his liability. There appears to be nothing amiss insofar as it does not oust the jurisdiction of the Accountability Courts to exercise their judicial power in appropriate proceedings. Rather this is in the nature of a facility provided to the accused. There is nothing wrong with the National Accountability Bureau . Ordinance, 1999 providing for a procedure of bargaining.

Moreover, the scheme for exploring the possibility of settlement during investigation/inquiry stage by the Chairman, National Accountability Bureau cannot be ignored straightaway. At the outset, most of the lawyers tend to consider the question of settlement out of Court. There is need to focus attention on this significant facet of the matter. The rationale behind the Ordinance is not only to punish those who were found guilty of the charges levelled under the Ordinance but also to facilitate early recovery of the ill‑gotten wealth through settlement where practicable. The traditional compromise, settlement, compoundability of offence during the course of proceedings by the Courts after protracted litigation is wasteful. Viewed in this' perspective, a power has been vested in the Chairman,' National Accountability Bureau to facilitate early settlement for recovery of dues through plea bargaining' where practicable. Lawyers are often interested in settling the disputes of their clients on just, fair and equitable basis. There are different approaches to settlement. Plea bargaining is not desirable in cases opposed to the principles of public policy. Chairman, National Accountability Bureau/Governor, State Bank of Pakistan, while involved in plea bargaining negotiations, should avoid using their position and authority for exerting influence and undue pressure on parties to arrive at settlement. However, in the interest of revival of economy and recovery of outstanding dues, any type .of alternate resolution.' like theplea bargaining' envisaged under section 25 of the Ordinance should be encouraged. An accused can be persuaded without pressure or threat to agree on a settlement figure subject to the . provisions of the Ordinance. Establishing this procedure at the investigation/inquiry stage greatly reduces determination of such disputes by the Court. However, as the plea bargaining/compromise is in the nature of compounding the offences, the same should be subject to approval of the Accountability Court. Accordingly, section 25 of the impugned Ordinance be suitably amended.?

(ll) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Preamble‑‑‑Object and scope‑‑‑Principles of interpretation of National Accountability Bureau Ordinance, 1999.

A perusal of the Preamble of the National Accountability Bureau Ordinance shows that it is a composite and an extensive law and its interpretation has to be done in a manner different from the normal interpretation placed on purely criminal statutes. This law deals with, among others, setting up of the. National Accountability Bureau, which is an executive as well as administrative authority and an investigating agency; which deals with several aspects of corruption, etc. The National Accountability Bureau does not merely deal with crimes of corruption, it also deals with their investigation and settlement out of Court.?

(mm) Interpretation of statutes‑‑‑

‑‑‑‑ Composite and extensive law‑‑‑Principles of interpretation.?

(nn) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S.25‑A(e) & (g)‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑?Constitutional petition under Art.184(3) of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑?Payments out of Court‑‑‑Payment of loan‑‑‑Discretion of Chairman, National Accountability Bureau to reject. Recommendations of Committee' and Governor State Bank of Pakistan‑‑‑Validity‑‑‑Provisions of S.25A(e) & (g) in their present form suffer from excessive delegation of power,, in that, these provisions confer .unfettered discretion on the Chairman; National Accountability Bureau to reject the recommendations of a duly appointed Committee and. to refuse to recognize a settlement arrived at between a creditor _ and debtor‑‑‑Supreme Court directed that the recommendations made by .the Governor State Bank of Pakistan shall be binding on the Chairman, National Accountability Bureau except for valid reasons to be assigned in writing subject to approval of the Accountability Court to be accorded within a period not exceeding 7 days and that suitable amendment be made in S.25A(e) & (g) of the Ordinance.

Provisions of section 25A (e) and (g) of the Ordinance in their present form suffer from excessive delegation of power, . in that, these provisions confer unfettered discretion on the Chairman, National Accountability Bureau to reject the recommendations of a duly appointed committee and to refuse to recognize a settlement arrived at between a creditor and a debtor. Supreme Court directed that the recommendations made by the Governor, State Bank of Pakistan shall be binding on the Chairman, National Accountability Bureau except for valid reasons to be assigned in writing subject to approval of the Accountability Court, to be accorded within a period not exceeding 7 days. Suitable amendment be made in section 25A (e) and (g).?

The Chairman; National Accountability Bureau is not competent to reject‑ a settlement arrived at between a creditor and debtor through the intervention of Governor State Bank of Pakistan without the approval of the Accountability Court.?

(oo) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S.32‑‑‑Constitution of Pakistan . (1973), Art. 184(3)‑‑‑Constitutional petition under Art.184(3) of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑‑Appeal‑‑‑Purported ouster of jurisdiction of the superior Courts from exercising their jurisdiction under Art. 184(3) and Art. 199 of the Constitution‑‑‑Validity‑‑‑Provision of S.32 of the Ordinance so far as it purports to oust the jurisdiction of the superior Courts from exercising the jurisdiction whether under Art. 184(3) or Art. 199 of the Constitution is ultra vires‑‑‑Supreme Court directed that by way of abundant caution, S.32 of the Ordinance be suitably amended so as to clarify in unambiguous terms that ouster of jurisdiction does not embrace the superior Courts in the exercise of their Constitutional jurisdiction‑‑‑High Courts, however, shall exercise the power under 'Art. 199 sparingly in rare and exceptional circumstances for valid reasons to be red in writing.

Section 32 of the Ordinance provides appeal before the High Court at the instance of any person convicted or. the Prosecutor‑General Accountability. However, it prohibits appeal against an interlocutory order of the Court during the proceedings pending before ‑it under this Ordinance and provides an appeal only against the final judgment of the Accountability Court. T11e main attack is directed against clause (d) thereof which provides that no stay of proceedings before Accountability Court shall be granted by any Court on any ground whatsoever, nor proceedings thereof be suspended or stayed by any Court on any ground whatsoever.

Constitutional jurisdiction vesting in the High Courts tinder Article 199 of the Constitution cannot be taken away or abridged, or curtailed by subordinate legislation. The above provision insofar as it purports to oust the jurisdiction of the superior Courts from exercising the jurisdiction whether under Article 184(3) or 199 of the Constitution is ultra vires.?

However, by way of abundant caution, section 32 be suitably amended so as to clarify in unambiguous terms that ouster, of jurisdiction does not‑embrace the superior Courts in the exercise of their constitutional jurisdiction. Needless to observe that High Courts shall exercise this power sparingly in' rare and exceptional circumstances for valid reasons to be recorded in writing.?

Inayat Ullah and others v M.A.Khan and others PLD 1964 SC126; Nagina Silk,Mills, Lyalipur v. Income‑tax Officer PLD 1963 SC 322; Abdul Rashid v. Pakistan PLD 1962 SC 42; Muhammad Anwar v. Government of West Pakistan PLD 1963 Lah. 109;, Abdul Rahim v. Chancellor of West Pakistan University of Engineering and Technology PLD 1964 Lah. 376; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan as Supreme Commander of the Armed Forces, Islamabad and ‑others PLD 1996 SC 632 ref.

(pp) National Accountability Bureau Ordinance (XVIII of 1999)‑‑

‑‑‑‑S.18(g)‑‑‑Constitution of Pakistan :(1973), Art. 184(3)‑‑‑Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance; 1999‑‑‑Cognizance of offence‑‑‑Reference to Accountability Court ‑‑‑Procedure‑‑‑Validity‑‑?Provisions corresponding to S.170, Cr.P.C. are contained in S.18(g) of the Ordinance to which no exception can be taken subject to compliance with the procedure laid down in 5.170, Cr.P.C. so far as it is applicable, Supreme Court directed that S. 18(g) of the Ordinance be suitably amended.

The powers vesting in the Chairman, National Accountability Bureau to release an accused from custody having regard to the gravity of the charge against him, favour the accused. However, while doing so, he is to record valid reasons in writing. As regards the vesting of powers with the Chairman, National Accountability Bureau under section 18(g) to refer or not a case to the Accountability Court after perusal of the material and evidence collected during inquiry and investigation, suffice it to say that this power corresponds to the normal powers vested in all Police Officers or Officers of investigating agencies. Reference may be made to section 170, Cr.P.C.?

Clearly, the existence of sufficient evidence is a condition precedent for the police acting under section 170, Cr.P.C. and for making a request to the Magistrate to take cognizance of the offence. It is for the officer in charge of.a police station to decide whether there is sufficient evidence to justify the forwarding of the accused to the competent Magistrate. A corresponding provision is contained in section 18(g) to which no exception can be taken subject to compliance with the procedure laid down in section 170, Cr.P.C. so far as it is applicable. To this extent section 18(g) be suitably amended.?

(qq) National Accountability Bureau Ordinance (XXIII of 1999)‑‑‑

‑‑‑‑S.28(d)‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Constitutional petition under Art.184(3) of the Constitution before Supreme Court‑‑-Vires of National Accountability Bureau . Ordinance, 1999‑‑‑Appointment of officers and staff of National Accountability Bureau‑‑‑Validity‑‑‑Provision of S.28(d) of the Ordinance creates two categories of persons serving in National Accountability Bureau; the first one is of persons directly appointed to whom Civil Servants Act, 1973 does not apply while the second category is comprised of persons who are civil servants deputed to or posted in National Accountability Bureau, but Civil Servants, Act, 1973 continues to apply to such persons‑‑‑Officers and staff of the Bureau being of two different categories and classes of employees, no violation of Art.25 of the Constitution is involved.?

(rr) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑[As amended], Preamble‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑?Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑‑Question to the effect whether the alleged violation of principles of universal declaration of Human Rights, 1948 and Cairo Declaration on Human Rights in Islam are justiciable in the proceedings before Supreme Court under Art. 184(3) of the Constitution was left by the Supreme Court to be considered in some other appropriate case, in that, the order proposed to be passed in the present proceedings did not contravene the said declaration.?

(ss) National Accountability Bureau Ordinance (XVHI of 1999)‑‑‑

‑‑‑‑[As amended], Preamble‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑?Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑‑Mere fact that Ehtesab Act, 1997 was competently and validly made and its vires were upheld by the Supreme Court did not in any way prescribe any limitation on the competent Legislature to make a new law on the subject for new laws are not made only when previous laws have been declared invalid.?

(tt) National Accountability Bureau Ordinance (XV1II of 1999)‑‑‑

-‑‑‑Preamble‑‑‑Constitution of Pakistan (1973),‑ Arts.2A & 184(3)‑‑?Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance, 1999 on the touchstone of Art.2A of the Constitution having regard to. the law laid down by Supreme Court in the case of Hakim Khan and 3 others v. Government of Pakistan reported as PLD 1992 SC 595‑‑‑No provisions of the Ordinance having been pointed out to be repugnant to the Injunctions of Islam, Supreme Court declined to deal with the question of vires.?

(uu) National Accountability Bureau Ordinance (XV1II of 1999)‑‑‑

‑‑‑‑S.6(b)(i)‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑‑Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑‑Appointment of Chairman of National Accountability Bureau‑‑‑Validity‑‑‑Supreme Court directed that S.6; was required to be suitably amended in the terms to the effect that (a) The Chairman, National Accountability Bureau ,shall be appointed by the President in consultation with the Chief Justice of Pakistan; (b) the Chairman, National Accountability Bureau shall hold office for a period of three years; (e) the Chairman, National Accountability Bureau shall not be removed from office except on the grounds of removal of a Judge of the Supreme Court of Pakistan; (d) the Chairman, National Accountability Bureau shall be entitled to such salary, allowances and privileges and other terms and conditions of service, as the President determines and these terms shall not be varied during the term of his office; (e) the Chairman, National Accountability Bureau may, by writing under his hand, addressed to the President, resign his office and that 'the present incumbent of the office of Chairman, National Accountability Bureau shall be deemed to have been appointed for a term of three years from the day he entered upon his office.

Insofar as the provisions relating to methodology for appointment of Chairman, National Accountability Bureau and Deputy Chairman, National Accountability Bureau without prescribing any qualifications in that regard are concerned, it may be observed that there are numerous other instances where no specific qualifications have been prescribed for certain appointments. Such examples include appointment of Governor of a Province, Director‑General, FIA under Federal Investigation Agency Act, 1974, Managing Director of PIA under the Pakistan International Airlines Act, 1956 and Federal Tax Ombudsman under Establishment of Office of Federal Tax Ombudsman Ordinance, 2000. However, in view of the importance of the National Accountability Bureau, its objectives of eradication of corruption and corrupt practices and to ensure the process of accountability to be conducted in a coherent and transparent manner, it is essential that its independence is maintained. With a view to achieving the above objective, Supreme Court found that clause (b)(i) of section 6 to the effect that the Chairman, National Accountability Bureau, "shall hold office during the pleasure of the President" is ultra vires being repugnant to the concept of independence of an institution.

Section 6, therefore, requires to be suitably amended in the following terms:

(a) The Chairman, National Accountability Bureau shall be appointed by the President in consultation with the Chief Justice of Pakistan.

(b) The Chairman, National Accountability Bureau shall hold office for a period of three years.

(c) The Chairman, National Accountability Bureau shall not be removed from office except on the grounds of removal of a Judge of the Supreme Court of Pakistan.

(d) The Chairman, National Accountability Bureau shall be entitled to such salary, allowances and privileges and other terms and conditions of service, as the President determines and these terms shall not be varied during the term of his office.

(e) The Chairman, National Accountability Bureau may, by writing under his hand, addressed to the President, resign his office.'

In order to ensure continuity of the accountability process and in the light of the decision in Zafar Ali Shah's case PLD 2000 SC 869 that the process of accountability be accelerated, Supreme Court directed that the present incumbent of the office of Chairman, National Accountability Bureau shall be deemed to have been appointed for a term of three years from the day he entered upon his office.?

(vv) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S.7‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑‑Constitutional petition under Art. 184(3) before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑‑Appointment of Deputy Chairman of the National Accountability Bureau‑‑‑Validity‑‑‑Supreme Court directed that provision of S.7(b) be suitably amended to the effect that "the Deputy Chairman shall hold office for a minimum period of two years and shall not be removed except on ground of misconduct as defined under S.2(4) of the Government Servants (Efficiency and Discipline) Rules, 1973.?

(ww) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S.8‑--‑Constitution of Pakistan (1973), Art. 184(3)‑‑‑Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑‑Appointment of Prosecutor‑General Accountability‑‑‑Validity‑‑‑Held, in view of the legal nature of duties of the Prosecutor‑General Accountability, he must be a person qualified to be appointed as a Judge of the Supreme Court of Pakistan in that his duty is to give advice to the Chairman, National Accountability Bureau upon such legal matters and to perform such other duties of a legal character as may be referred or assigned to him by the Chairman, National Accountability Bureau and, in the performance of his duties, he has a right of audience in all Courts including the High Courts and the Supreme Court‑‑‑Section 8(a) of 'the Ordinance, therefore, be amended so as to provide that (a) The Prosecutor‑General Accountability shall hold an independent office on whole time basis and shall not hold any other office concurrently; (b) he shall be appointed by the President in consultation with the Chief Justice of Pakistan and Chairman, National Accountability Bureau on such terms and conditions as may be determined by the President; (c) his remuneration and fringe benefits shall in no case exceed those of the Attorney‑General for Pakistan, who is the Principal Law Officer of the country and holder of a Constitutional office; (d) he shall hold a tenure post of not less than two years; (e) his services shall not be dispensed with except on the grounds prescribed for removal of a Judge of the Supreme Court; (f) he shall not be permitted to conduct private cases and in lieu thereof he may be allowed a special allowance; (g) he may, by writing under his hand addressed to the President of Pakistan, resign his office‑‑‑Present incumbent of the post of Prosecutor‑General, in the interest of continuity of accountability process, shall continue in office on the existing terms and conditions of his service till his successor is appointed or he is found suitable to be retained in service as such subject to recommendations of the consultees.?

(xx) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S.8‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑‑Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑‑Independent Prosecution Agency, establishment of‑‑‑Supreme Court directed that a panel of competent lawyers of experience and impeccable reputation shall be prepared in consultation with the Law and Justice Division and their services shall be utilized as Prosecuting Counsel in cases of significance at reasonable fee on case‑to‑case basis; even during the course of investigation of an offence, the advice of a lawyer chosen from the panel should be taken by the National Accountability Bureau‑‑‑Every prosecution which results in the discharge or acquittal of the accused must be reviewed by a lawyer on the panel and, on the basis of the opinion given, responsibility should be fixed for dereliction of duty, if any. of the concerned officer and in such cases, strict action should be taken against the officer found guilty of dereliction of duty in accordance with law‑‑‑Steps shall be taken for the constitution of an able and impartial agency comprising persons of unimpeachable integrity to perform functions of investigation and inquiry, etc by the National Accountability Bureau‑‑‑Till the constitution of such body, Special Counsel shall be appointed for the conduct of important trials in consultation with the Law and Justice Division.?

(yy) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑[As amended], Preamble‑‑‑Constitution of Pakistan (1973), Arts.25 R 184(3)‑‑‑Constitutional petition under Art.18?44(3) of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance. 1999‑‑‑Absence of provision in the Ordinance regarding special treatment to be meted out to the women‑accused‑‑‑Validity‑‑‑No direction is found in Article 25 to make sj6ecial provisions for women which merely permits that provisions with regard to women may be made‑‑‑Provisions of the Criminal Procedure Code, 1898 being applicable where such provisions are not specially overridden or ousted in the National Accountability Bureau Ordinance, 1999, therefore, provisions relating to women‑accused under Cr.P.C. shall apply to the Ordinance as well.?

(zz) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S.31‑B‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Constitutional petition under Art.184(3) of the Constitution before Supreme Court‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑‑Withdrawal from prosecution‑‑‑Procedure‑‑‑Validity‑‑‑Withdrawal of cases can neither be controlled by the Chairman, National Accountability Bureau nor the Prosecutor‑General or Deputy Prosecutor‑General, such course can be resorted to, only if the Accountability. Court so permits‑‑‑Supreme Court directed that suitable amendment be made in S.31‑B of the Ordinance.?

(aaa) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑[As amended], Preamble=‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑?Constitutional petition under Art. 184(3), of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑?Operational instruction appear to be laudable provided they are implemented in letter and spirit‑‑‑Supreme Court observed that apart from any internal instructions issued by the National Accountability Bureau for carrying out the objectives of the National Accountability Bureau Ordinance. 1999, it would be appropriate tha; rules as envisaged under the National Accountability Bureau Ordinance, 1999 are framed as expeditiously as possible to make the process of accountability transparent in a coherent manner and in the light of the observations made in this judgment.

Operational Instruction No. l (Marked Confidential) issued by National Accountability Bureau, salient features whereof read as under:

"The genesis of corruption in Pakistan is rooted in our historical, social and political history. The inherited system of governance has led to concentration of powers and privileges, thus glamorizing corruption in the society. Corruption is not a cause but a symptom of breakdown of systems and ethics. Fortunately, the tide is turning against the corruption, which lends a big support to National Accountability Bureau. At the same time, failing to deliver would have adverse consequences and therefore, cannot be ignored. The present Government has taken the challenge up‑front and National Accountability Bureau has to deliver with a spirit of "Jihad" in the shortest possible time."

Para. 2 of the Instruction lays down the aims and objectives of National Accountability Bureau within the parameters of the National Accountability Bureau Ordinance, 1999 and seven‑point agenda of the present Government. These are:

(a) Identification, investigation and prosecution of cases of corruption ensuring speedy disposal.

(b) Urgent recovery of the State money and other assets misappropriated, through corruption, corrupt practices and misuse of authority.

(c) Induce a deterrence against corruption in the society in general and amongst corrupt institution/persons in particular. '

(d) Develop a culture/mechanism of institutionalized accountability by every public/private organization.

(e) Structure National Accountability Bureau's organization on long term basis which is task oriented by highly professional.

The Instructions, amongst others, contain caution to be exercised against the individual acts of misconduct or misuse of authority, focus on operation, the capacity factor prioritization‑parameters, and process, review of ongoing cases, limiting factors, i.e. the society's balance is not disturbed, the economic activity is not damaged and the campaign is conducted without harassment, principles of operational functions, functional matters, investigation functions, overseas investigations, teamwork, actions following formal investigations, plea bargaining within the parameters of the law, prosecution functions, functional spectrum and organization, pre‑trial function, organizational aspect, etc. The directions contained in the Operational Instruction No.1 appear to be laudable provided they are implemented in letter and spirit. However, apart from any internal instructions issued by the National Accountability Bureau for carrying out the objectives of the National Accountability Bureau Ordinance, 1999 it would be appropriate that rules as envisaged under the National Accountability Bureau Ordinance, 1999 are framed as expeditiously as possible to make the process of accountability transparent in a coherent manner and in the light of the observations made, in this judgment. ?

(bbb) National Accountability Bureau Ordinance (XVIH of 1999)‑‑‑

‑‑‑‑S.5(m)‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑‑Constitutional petition under Art. 184(3) of the Constitution before Supreme Court‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑‑Accountability of Armed Forces‑‑‑Contention was that S.5(m) of the Ordinance, which defines 'holders of public office', excludes a person who is a member of any of the Armed Forces of Pakistan or for the time being is subject to any law relating to any of the said Forces, it is discriminatory insofar as the accountability of the Armed Forces is concerned‑‑‑Validity‑‑‑Held, it was wrong to contend that members of the Armed Forces were immune from accountability as they were subject to accountability in accordance with the methodology laid down in the Pakistan Army Act, 1952 and the Pakistan Army Act Rules, 1954.

It was contended, in the present case, that section 5 (m) of the impugned Ordinance, which defines 'holders of public office', excludes a person who is a member of any of the Armed Forces of Pakistan, or for the time being, is subject to any law relating to any of the said Forces, therefore, it is discriminatory insofar, as the accountability of the Armed Forces is concerned.

The petitioners have overlooked the Constitutional safeguard$ provided to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law for his actio" being challenged under Constitutional jurisdiction of the High Court by virtue of Article 199(2)(3) of the Constitution as well as Article 8, which lays down that the laws inconsistent with or in derogation of Fundamental Rights shall be void.

Article 63(1) of the Constitution provides for disqualifications for membership of Majilis‑e‑Shoora (Parliament), in sub‑clausea (g) thereof, which is the rationale for not including the members of the Armed Forces within the purview of the National Accountability Bureau Ordinance. This, however, does not mean that they are immune from accountability. The Pakistan Army Act (XXXIX of 1952) as well as the Pakistan Army Act Rules, 1954 are self‑contained Codes, which provide for prosecution and punishment in cases involving corruption, corrupt practices, illegal gratification and for matters connected therewith and incidental thereto. Officers and persons enrolled in army service are subject to section 2 of the Act. Offences of corruption and corrupt practices etc. corresponding to and ejusdem generis with the offences contained in section 9 of the National Accountability Bureau Ordinance, 1999 are provided for in sections 27, 40, 42, 47 and 55 of the Act. Section 27 of the Act prescribes 'offences against property or persons of inhabitant of country where serving' which is punishable with rigorous imprisonment for a term which may extend to fourteen years; section 40 of the Act deals with 'fraudulent offence' in respect of property which is punishable with rigorous imprisonment for a term which may extend to five years; 'illegal gratification' falls under section 42 of ‑the Act, which is punishable with rigorous imprisonment for a term which may extend to five years; section 47 relates to "false documents" which is punishable with rigorous imprisonment for a term which may extend to seven years; and section 55 of the Act provides for "violation of good order and discipline" and prescribes punishment for its breach, which may extend to five years.

Section 176 of the Act prescribes power of the Federal Government to make rules for the purposes thereof. Rule 13 read with Rule 157 of the Rules deal with investigation of charges, remand for trial, Court of inquiry and summary of evidence. Sections 80 to 142, contained in Chapters IX to XI of the Act provide for constitution, jurisdiction and powers of Court Martial.

Viewed in the above perspective, it is wrong to contend that members of the Armed Forces are immune from accountability. Admittedly, they are subject to accountability in accordance .with the methodology laid down in the Act and the Rules.?

(ccc) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑[As amended], Preamble ‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑?Constitutional petition under Art.184(3) of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑?Accountability of National Accountability Bureau‑‑‑Procedure‑‑‑Supreme Court directed that the accounts of the National Accountability Bureau shall be kept in such form and in accordance with such principles and methods as the Auditor‑General of Pakistan may prescribe‑‑‑Accounts shall be audited by the Auditor‑General, Pakistan annually and his report shall be submitted to the President of Pakistan‑-‑Chairman, National Accountability Bureau shall submit his Annual Report to the President of Pakistan as to affairs and performance of the National Accountability Bureau by 15th January of each succeeding year‑‑‑Mechanism shall be evolved by the Chairman; National Accountability Bureau for redressal of the grievances against the functionaries of the National Accountability Bureau.?

(ddd) National Accountability Bureau Ordinance (XXIII of 1999)‑‑‑

‑‑‑‑[As amended], Preamble‑‑‑Constitution of Pakistan (1973), Arts.209 & 184(3)‑‑‑Constitutional petition under Art.184(3) of the Constitution before Supreme Court‑‑‑Vires of National Accountability Bureau Ordinance; 1999‑‑‑Accountability of superior judiciary‑‑‑Procedure‑‑‑Judges of the superior Court's are not immune from accountability and it is for the President to make a reference under Art.209 of the Constitution if in a case such a course is desirable at his end.

Under Article 209 of the Constitution of the Islamic Republic of Pakistan, 1973, the Supreme Judicial Council of Pakistan consists of ‑

"(a) the Chief Justice of Pakistan;

(b) the two next most senior Judges of the Supreme Court; and

(c) the two most senior Chief Justices of High Courts."

Clause (5) of the above Article reads as under:

"(5) If, on information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court‑‑‑

(a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or

(b) may have been guilty of misconduct, .

the President shall direct the Council to inquire into the matter."

A perusal of the above clause indicates that the right to move the Supreme Judicial Council (SJC) against a Judge of the superior Court under .Article 209 of the Constitution is not available to any individual. Secondly, the President alone on the advice of Prime Minister or the Cabinet as the case may be, can refer a case of the Judge of the superior Court to Supreme Judicial Council for holding an enquiry against him.. Thirdly, the jurisdiction of Supreme Judicial Council to hold an enquiry against the Judge of a superior Court arises only when a reference is made to it by the President in this behalf. Fourthly, the enquiry by the Supreme Judicial Council against the Judge of a superior Court under Article 209 of Constitution of Pakistan (1973), is limited only to two points, namely (i) the incapacity of the Judge to perform the duties of his office properly arising from any physical or mental incapacity, and (ii) misconduct of the Judge concerned. Lastly, the findings of the Supreme Judicial Council in such an enquiry are recommendatory in nature and the action, if any, is to be taken by the President on the advice of the Prime Minister or the Cabinet. However, in order to make the Supreme Judicial Council more effective and functional and to ensure that the Judges of the superior Courts observe the Code of Conduct in letter and spirit, the Chief Justice of Pakistan/Chairman, Supreme Judicial Council convened meetings of the Council on 29‑3‑2000, 13‑4‑2000 and 30‑4‑2000 respectively wherein decisions, inter alia, were taken to make it obligatory on every Judge to take all steps necessary to expedite cases, and effectively control the processing thereof with a view to deciding the same expeditiously and to strictly adhere to the Code of Conduct, pursuant to the provisions contained in Articles II, IX and X of the Code of Conduct. Article X provides for quick disposal of cases. The Judges of the superior Courts have to work and conduct themselves under the Code of Conduct already prescribed for them. They are oath‑bound to preserve the Code and act in accordance with its dictates. The Code of Conduct is a fairly comprehensive document and covers both the public and private conduct of Judges. It lays down essential norms of behaviour to be observed in the interest of maintaining decorum and judicial propriety. The Supreme Judicial Council is a unique institution, which comprises the senior most Judges in judicial hierarchy and entrusted with the onerous responsibility of deciding complaints that are referred to it through references by the President alone. It is an essential prerequisite of the independence of judiciary that there is put in place a system of accountability. It should, therefore, be the endeavour of the Judges of the superior Courts to make the Code fully applicable and ensure that it is strictly adhered to. The Judges of the superior Courts are not immune from accountability. They are accountable only in the manner laid down under Article 209 of the Constitution. The Judges of the superior Courts are not immune from accountability and that it is for the President to make a reference if in a case such a course is desirable at his end.?

Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Zafar Ali Shah's case PLD 2000 SC 869 ref.

(eee) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑[As amended], Preamble‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑?Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑‑Past and closed transactions‑‑‑Supreme Court directed that judgment in the present Constitutional petition shall not affect the trials conducted and convictions recorded or any order passed or proceedings taken thereunder and the pending trials/proceedings may continue subject to the judgment‑‑?Principles.?

Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104 and Zafar Ali Shah's case PLD 2000 SC 869 ref.

(fff) National Accountability Bureau Ordinance (XVIIII of 1999)‑‑‑

‑‑‑‑[As amended]; Preamble‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑?Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑‑Judicial process, credibility of‑‑‑Accountability Judge has to bear . in mind that expeditious trial and its early conclusion are necessary for‑the ends of justice and credibility of the judicial process‑Any dilatory tactics of the accused shall not prevent the Court from concluding the trials most expeditiously, within the time frame laid down in the National Accountability Bureau Ordinance‑‑‑Any observation made by Supreme Court in this Order shall have no bearing on the merits of the cases pending before the Accountability Courts, which shall be decided in accordance with law‑--Care must be taken by the Accountability Courts to. ensure that the credibility of the judicial process is not undermined in any, manner whatsoever. ?

(ggg) Administration of justice‑‑‑

‑‑‑‑ Limiting the amount of time allowed by the Court to each side for arguments‑‑‑Such limits can be helpful to the Court and the parties but should be imposed with care and caution and only after consultation with counsel to ensure a fair hearing.

(hhh) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑[As amended], Preamble‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑?Constitutional petition under Art. 184(3) of the Constitution before Supreme Court ‑‑‑Vires of National Accountability Bureau Ordinance, 1999‑‑‑Supreme Court by' allowing the Constitutional petitions observed that the Order in the cases and directions contained therein shall come into force with immediate effect‑‑‑Federal Government has been directed by the Supreme Court to formally promulgate appropriate legislative instruments, as soon as possible, but preferably, within a period of two months from the date of the Order of the Supreme Court in the cases, in order to make necessary amendments, modifications, alterations; or substitutions, as the case may be, to give effect to the directions of the Supreme Court.?

Aitzaz Ahsan, Senior Advocate Supreme Court and Ejaz M. Khan, Advocate‑on‑Record for Petitioner (in C.Ps. Nos. 13 and 27 of 2000).

M.Akram Sheikh, Senior Advocate Supreme Court assisted by Dr.Amjad Hussain Bokhari, Khurram Hashim, Farrukh Hussain Lodhi, Barrister Akhtar Khan, Sherjeel Adnan, Advocates Supreme Court and M. A. Zaidi, Advocate‑on‑Record for Petitioner (in C.Ps. Nos. ls to 17 of 2000.

K.M.A. Samdam, Advocate Supreme Court assisted by M. Bilal, Senior Advocate Supreme Court, Shahbaz Bokhari, Advocate, M. S, Khattack, Advocate‑on‑Record for Petitioner (in C.Ps. Nos.10 and 28 of 2000).

Ch. Mushtaq Ahmed Khan, Advocate Supreme Court and.S. A. Asim Jafri, Advocate‑on‑Record (absent) for Petitioner (in C.P. No. 24 of 2000). .

A.Hafeez Peerzada, Senior Advocate, Supreme Court assisted by M. Sardar Khan, Senior Advocate Supreme Court and, M. S. Khattack, Advocate‑on‑Record for Petitioner.(in C.l'., No. 26 of 2000).

Aitzaz Ahsan, Senior Advocate Supreme Court with S.Zafar .Ali Shah, Advocate, Supreme Court and Ejaz M. Khan, Advocate‑on‑Record for Petitioner (in C.P No. 1 of 2000).

M.Ikram Chaudhry, Advocate, Supreme Court and M. A. Zaidi, Advocate‑on‑Record for Petitioner (in C. P. No. 14 of 2000).

Dr. A.‑ ‑Basit, Advocate, Supreme Court and Ejaz M. Khan, Advocate‑on‑Record for Petitioner (in C. P. No. 19 of 2000).

Dr. Z. Babar Awan, Advocate, Supreme Court and Ejaz M. Khan, Advocate‑on‑Record for Petitioner (in C.P. No. 20 of 2000).

A.Haleem Pirzada; Advocate, Supreme Court and Imtiaz M. Khan, Advocate‑on‑Record for Petitioner (in C.P. No‑. 32 of 2000).

Petitioner in person (in C.P. No. 33 of 2000).

Abid Hasan Minto, Senior Advocate Supreme Court, assisted by Ahmer Bilal Sufi, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for the Federation of Pakistan.

Maqbool Ilahi Malik, Senior Advocate Supreme Court assisted by Raja M. Bashir, Tariq Khokhar, Raja Saeed Akram, Azmat Saeed, Advocates Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for the NAB.

Aziz A.Munshi, Attorney‑General for Pakistan assisted by Tanvir Bashir Ansari, Deputy Attorney‑General, Sher Zaman Khan, Deputy Attorney‑General, Saeeduz Zafar, Deputy Attorney‑General, Ch. Akhtar Ali and Raja Abdul Ghafoor, Advocates‑on‑Record (on Court's Notice) (in C.P. No. 16 of 2000).

Lt.‑Col. Iqbal Hashmi, AJAG (on Court's‑ Notice).

Dates of hearing: 9th, 10th, 11th, 12th, 13th and 16th April, 2001. '

P L D 2001 Azad J&K 1

Before Khawaja Muhammad Saeed, C.J.

and Muhammad Riaz Akhtar Chaudhry, J

Sardar MUHAMMAD AZEEM KHAN and 5 others‑‑‑Appellants

Versus

MUHAMMAD FAROOQ KHAN and 3 others‑‑‑Respondents

Civil Appeal No.28 of 1998, decided on 9th January, 2001.

Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)‑‑‑

‑‑‑‑S. 6‑‑‑Limitation Act (IX of 1908), S.14‑‑‑Suit for pre‑emption‑‑­Limitation‑‑‑Suit having been filed by plaintiff before a wrong Court due to absence of due care and attention, benefit of S.14, Limitation Act, 1908 could not be given to him as S.14 would be attracted only if it was shown that the wrong forum was chosen in good faith and not due to inadvertence.

Sardar Ismaeel Khan v. Sardar Bagga Khan PLD 1975 Azad J&K 131; Masud Ahmad and 2 others v. United Bank Ltd. 1991 MLD 1030; PLD 1967 Azad J&K 47; PLD 1971 Azad J&K 30 and 1992 SCMR 424 ref.

Sardar Suleman Khan for Appellants.

Sardar Tahir Anwar Khan for Respondents.

P L D 2001 Azad J&K 4

Before Muhammad Riaz Akhtar Chaudhry, J

DIL MUHAMMAD ---Petitioner

Versus

RIAYASAT HUSSAIN

and 3 others---Non-Petitioners

Writ Petition No.26 of 2000, decided on 6th November, 2000.

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

----Ss. 5 & 29---Limitation---Special law providing limitation period--- Effect---Provision of S.5, Limitation Act, 1908 would not apply to the cases where the limitation was provided under a special law.

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

----S. 167---Limitation Act (IX of 1908), Ss. 5 & 12 to 25---Appeal, revision and review petitions---Limitation---Computation of period---Application of Limitation Act, 1908 to a special law---Provisions of S.167; West Pakistan Land Revenue Act, 1967 had made the provisions of Limitation Act, 1908 regarding the computation of the period of limitation applicable to appeals/revisions and review petitions---Only provisions of Ss.12 to 25, Limitation Act, 1908 pertaining to the computation of the period of limitation were made applicable through S.167, West Pakistan Land Revenue Act, 1967, but provisions of S.5 of Limitation Act, 1908 were not applicable to the appeals, revisions and review petitions filed under Act (XVII of 1967).

PLD 1974 Azad 1&K 5; PLD 1997 SC(AJ&K) 17; 1995 SCR 354; PLD 1978 Rev. 28 and PLD 1978 Rev. 41 ref.

(c) Interpretation of statutes----

---- Principles--Purpose of legislation and the intention of the Legislature could be gathered from the words used in the legislation which was the primary and first source of the interpretation of statute.

Mumtaz Hussain for Petitioner.

Muhammad Mushtaq, Addl. A.-G. assisted by Raja Hassan Akhtar for Non-Petitioners.

P L D 2001 Azad J&K 10

Before Syed Manzoor Hussain Gilani, J

Khawaja ABDUL QAYYUM and 13 others‑‑‑Petitioners

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through

Chief Secretary, Muzaffarabad and 10 others‑‑‑Respondents

Writ Petition No.599 of 1999, decided on 23rd November, 2000.

(a) Azad Jammu and Kashmir Natural Calamities (Prevention and Relief) Act, 1976‑‑‑

‑‑‑‑S. 4(2)(0)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44‑‑‑Writ petition‑‑‑Remission or suspension of recovery of loans and other arrears from inhabitants of area declared as natural calamity affected area‑‑‑Petitioners had prayed that Authorities be restrained from recovering from them loan advanced to them under different schemes and other arrears on account of the area having been declared as natural calamities affected area under a notification‑‑‑Area in which petitioners were living alongwith others was severely hit and disrupted on account of Indian firing which was declared as natural calamity affected area‑‑‑Relief Commissioner was required to take further steps and actions in view of Azad Jammu and Kashmir Natural Calamities (Prevention and Relief) Act, 1976 after the declaration of the area as such‑‑‑Actions visualized by S.4(2) of the said Act though were discretionary in. nature, but under the circumstances viewed with other measures taken or adopted by Governments of Azad Kashmir as well as of Pakistan, claim of petitioners was justified and discretion was to be exercised by the Relief Commissioner in favour of the petitioners‑‑‑Relief Commissioner was directed to issue notification to accept the claim of petitioners and the notification would remain valid till the notification declaring the area as "natural calamity affected area" was denotified or withdrawn.

(b) Discretion‑‑‑

‑‑‑‑Exercise of‑‑‑When a discretion in the circumstances of a case advanced the cause of justice and public welfare, its exercise was mandatory and refusal was a failure to exercise the jurisdiction.

(c) Azad Jammu and Kashmir Natural Calamities (Prevention and Relief) Act, 1976‑‑‑

‑‑‑‑S. 4(2)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.31 & 44‑‑‑Writ petition‑‑‑Maintainability‑‑‑Remission or suspension of recovery of loans from inhabitants of area declared as natural calamity affected area‑‑‑Petitioners who were inhabitants of the area declared as natural calamity affected area, had prayed that Authorities be restrained from recovering from them loans advanced to them under different schemes‑‑‑Contention of Authorities was that the law under which the loans had been advanced to the .petitioners either were enacted or adopted by Azad Jammu and Kashmir Council and AJ&K Council having not been impleaded as a party, no order could be passed by the Relief Commissioner or Government of Azad Jammu. and Kashmir‑‑‑Contention was not tenable for the reason that under the scheme of Azad Jammu and Kashmir Interim Constitution Act, 1974, Azad Jammu and Kashmir Council as well as the Assembly had the power under S.31(1) of Azad Jammu and Kashmir Interim Constitution Act, 1974 to make laws for territories of Azad Jammu and Kashmir and the State Subjects wherever they could be ‑‑‑Azad Jammu and Kashmir Natural Calamities (Protection and. Relief) Act, 1976 under which an area could be declared as natural calamity affected area was within the legislative competence of Azad Jammu and Kashmir Assembly‑‑‑Legislation promulgated by the Assembly, had to be enforced by all the Agencies in Azad Kashmir, applicable to all the State Subjects 'wherever they could be and binding on every Authority whoever functioned within the territorial limits of Azad Kashmir under any authority of law and by any legislative forum.

Muhammad Yaqoob Mughal for Petitioners.

Addl. A.‑G., Ghulam Mustafa Mughal, Mumtaz Hussain Naqvi and Shah Bahar for Respondents.

P L D 2001 Supreme Court (AJ&K) 15

Present: Sardar Said Muhammad Khan, CJ. and Basharat Ahmad Shaikh, J

MUHAMMAD AFZAL KHAN and 15 others‑‑‑Appellants

versus

Mst. MANSHA BI‑‑‑Respondent

Civil Appeal No. 123 of 1998, decided on 10th May, 1999.

(On appeal from the judgment of the High Court dated 26‑6‑1998 in Civil Appeal No.6 of 1994).

Transfer of Property Act (IV of 1882)‑‑

‑‑‑‑S. 126‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Suit for cancellation of gift‑‑‑Consolidation of suits‑‑­Appellate Court below directed that two counter‑suits as claimed by plaintiffs/appellants should be consolidated and decided together and that legal representatives brought on record in one suit should be deemed to have been brought on record in other suit‑‑‑High Court, in appeal, after perusal of record had concluded that there was no order to show that two suits had ever been consolidated‑‑‑High Court had observed that consolidation had to be express arid after consolidation both cases had to be heard together, but both said elements were missing in the case and that interim orders were independently recorded in the case out of which appeal arose and that there was no consolidation of suits‑‑‑Record having unmistakably shown that suits had not been consolidated at any stage, view taken by High Court not suffering from any infirmity, could not be interfered with by Supreme Court in appeal.

Abdul Aziz v. Mst. Babu Jan 1990 CLC 1924 and Mst. Azad Jan and others v. Muhammad Rahim Khan and others Civil Appeal No.18 of 1992 ref.

Sardar Rafique Mahmood Khan, Advocate for Appellants.

Raja Muhammad Yunus Tahir, Advocate for Respondent.

Date of hearing: 22nd February, 1999.

P L D 2001 Supreme Court (AJ&K) 18

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

QAMAR ZAMAN through Attorney‑‑‑Appellant

versus

MUNICIPAL CORPORATION, MIRPUR through Administrator, Mirpur and 7 others‑‑‑Respondents

Civil Appeal No. 113 of 1999, heard on 30th March, 2000.

(On appeal from the judgment of the High Court dated 13‑5‑1999 in Writ Petition No. 144 of 1998)‑.

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

‑‑‑‑O. III, R.2‑‑‑Power of attorney‑‑‑Execution and extent of‑‑‑Appellant, who had constructed house on plot allotted to him had challenged in writ petition filed through his attorney, the allotment of land in front of his house in favour of respondents, contending that said land being an open space was meant for inhabitants of locality and could not be allotted‑‑‑Writ petition was dismissed by High Court on sole ground that appellant's attorney did not have authority to tile writ petition‑‑‑Recital of power of attorney executed by appellant in favour of his attorney distinctly related to plots allotted to the appellant and mentioned that attorney would look after said plots and file applications etc. or pursue legal remedy on behalf of executant/appellant or could defend any proceedings instituted against appellant before any authority or any Court of law‑‑‑Phraseology used in the power of attorney was not so wide as to include power to challenge allotment of the disputed open space‑‑‑High Court, in circumstances, had tightly dismissed writ petition on ground that appellant's attorney did not have authority to file writ petition. [p. 20] A

Ajaib Hussian v. Muhammad Fazil 1980 CLC 198; Muhammad Afsar Khan and another v. Khadim Hussain and 3 others PLD 1978 SC (AJ&K) 143 and Muhammad Mehrban v. Sadrud Din and another 1995 CLC 1541 ref.

(b) Power of attorney‑‑‑

‑‑‑‑Construction‑‑‑General rule of construction of power of attorney is that it must be construed strictly giving only such authority as expressly conferred or by necessary implication.

Muhammad Mehrban v. Sadrud Din and another 1995 CLC 1541 ref.

Ch. Muhammad Azam Khan, Advocate for Appellant.

Masood Khalid and Ch. Muhammad Riaz Alam, Advocates for Respondents.

Date of hearing: 30th March, 2000.

P L D 2001 Supreme Court (AJ&K) 21

Present: Sardar Said Muhammad Khan, C.J.

and Muhammad Yunus Surakhvi, J

VICE‑CHANCELLOR, UNIVERSITY OF AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 3 others‑‑‑Appellants

versus

MUHAMMAD SHAHZAD KHALID‑‑‑Respondent

Civil Appeal No. 156 of 2000, decided on 17th November, 2000.

(On appeal from the judgment of the High Court dated 20‑6‑2000 in Writ Petition No.70 of 2000).

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), 0.1, R.10(2) ‑‑‑ Appeal to Supreme Court‑‑‑Writ petition ‑‑‑Non‑impleading of necessary party‑‑Effect‑­Disciplinary Committee of the educational institution (University) imposed penalty upon petitioner alongwith other candidates for using unfair means in the examination‑‑‑Vice‑Chancellor of the University on appeal by other candidates set aside the order imposing penalty and ordered de novo proceedings by another Committee set up by him‑‑‑Writ filed by petitioner against proceedings initiated by Disciplinary Committee was accepted by High Court holding that Vice‑Chancellor had no jurisdiction to constitute another Disciplinary Committee‑‑‑Validity‑‑‑Finding was given by the High Court without impleading Vice‑Chancellor as respondent in the petition‑‑­Vice‑Chancellor being necessary party, High Court had committed an illegality by not asking the respondent to implead the Vice‑Chancellor as party‑‑ Writ petition filed without impleading necessary party was, therefore, incompetent‑‑‑Provision of O. I, R. 10(2), C.P.C. authorised the Court to itself add a party whose presence may be necessary in order to adjudicate upon and settle questions involved in the matter‑‑­Case was remanded by the Supreme Court to the High Court with direction that High Court shall itself add vice‑Chancellor as one of the respondents in the writ petition and provide him an opportunity of filing written statement and to proceed with the case afresh.

Muhammad Nazir v. Muhammad Ashraf and 3 others PLD 1987 SC (AJ&K) 16; Mst. Tazeem Akhtar v. Liaqat Ali and 6 others 1997 CLC 692; Qazi Liaqat Ali Quresti v. Hafiz Muhammad Ishaque and 3 others 1998 PLC (C.S.) 153; Muhammad Ashraf Khan Kayani v. Azad Government and 4 others 1998 PLC (C.S.) 110; Syed Miskeen Shah v. Custodian of Evacuee Property and 4 others 2000 YLR 1088; Boota and another v. Muhammad Sadiq and 4 others 2000 SCR 331; Fazal Hussain v. Walidad Khan and 22 others 1996 SCR 271; Muhammad Ashraf and 8 others v. Azad Government and others PLD 1985 SC (AJ&K) 102; Abdul Janan v. University of Peshawar PLD 1996 SC 709; Abdul Hamid Khan v. Muhammad Zameer Khan and others 1990 MLD 1617 and Muhammad Resham Khan v. Chairman Inspection Team and 3 others 1990 CLC 1355 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ Adverse finding could not be recorded against a person at his back. [p. 25) E

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

‑‑‑‑O. I, Rr. 1 & 10‑‑‑Necessary party‑‑‑If an effective order or decree could not be passed in the absence, of a particular party, such party was a "necessary party". [p. 25] F

Sardar Muhammad Yasin Khan, Advocate for Appellants. Sardar Muhammad Sayab Khalid, Advocate for Respondent.

Date of hearing: 15th November, 2000.

P L D 2001 Azad J&K 24

Before Khawaja Muhammad Saeed, C.J.

and Muhammad Riaz Akhtar Chaudty, J

Chaudhry ABDUL MAJEED and another‑‑‑Petitioners

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief

Secretary and 2 others‑‑‑Respondents

Writ Petition No.539 of 2000, decided on 17th January, 2001.

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

‑‑‑‑Ss. 4(15) & 44‑‑‑Equality before law‑‑‑Writ petition‑‑‑Government in its Cabinet meeting decided to construct ten kilometres link road on the basis of the scheme proposed by Members of Legislative Assembly of the concerned constituencies‑‑‑Petitioners who were elected members of Legislative Assembly alongwith others submitted their proposals in respect of their constituencies, but Authorities with mala tide intention or ulterior motive did not include the schemes submitted by the petitioners while the proposals submitted by other members were included and acted upon ‑‑‑Validity‑‑­Authorities, in circumstances, had committed violation of the Fundamental Right No. 15 "Equality before law" of Azad Jammu and Kashmir Interim Constitution Act, 1974, which was anchor sheet of the Constitution which postulated that all State Subjects should be treated equally.

AIR 1952 SC 75; AIR 1956 SC 432 and 1990 CLC 136 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIR of 1974)‑‑‑

‑‑‑‑S. 4(15)‑‑‑Equality before law‑‑‑Connotation and scope Equality before law would mean that among equals, the law should be equal and should be equally administered, that like should be treated alike‑‑‑Comprehensive study of legal history of jurisprudence had revealed that equity before law primarily was introduced, firmly adopted and practised by the Holy Prophet (May peace be upon him) before the Magna Cartra arid Fourteenth Amendment of American Constitution, declaring the hump rights and the supremacy of law as enunciated by the Western Jurists ‑‑‑L4st sermon of the Holy Prophet was the land‑mark in the history of the world aid the mankind which recognised inalienable rights of man conferred by Isles which were known as Fundamental Rights.

1989 PCr. LJ 77 ref.

Shahzad Ahmed and Rafique Mehmood Khan for Petitioners.

Raja Muhammad Hanif Khan for Non‑Petitioners.

P L D 2001 Supreme Court (AJ&K) 27

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

TASAWAR HUSSAIN SHAH alias

TASWEER HUSSAIN SHAH‑‑‑Appellant

versus

MUHAMMAD YUSUF and 7 others‑‑‑Respondents

Civil Appeal No.51 of 2000, decided on 22nd November, 2000.

(On appeal from the judgment and decree of the High Court dated 2‑2‑2000 in Civil Appeal No.36 of 1997).

Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 51‑‑‑Costs of improvement‑‑‑Costs of improvement could be awarded only if it was shown that same were made on the property to which concerned party had title and were made in good faith.

Mst. Yasim Akhtar v. Mukhtar Hussain alias Abbas Hussain 1989 CLC 2066 and Allah Ditta v. Muhammad Ziaul Haq 1985 CLC 2020 ref.

Raja Muhammad Siddique Khan, Advocate for Appellant. Ch. Muhammad Sharif Tariq, Advocate for Respondents.

Date of hearing: 20th November, 2000.

P L D 2001 Supreme Court (AJ&K) 30

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

KARAMAT ALI KHAN and another‑‑‑Appellants

versus

SARDAR ALI and 29 others‑‑‑Respondents

Civil Appeal No. 110 of 1999, decided on 21st November, 2000:

(On appeal from consolidated judgment of High Court dated 16‑4‑1999 in Civil Appeals Nos.7, 8, 9 and 10 of 1995).

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

‑‑‑‑O. XXIII, R.1‑‑‑Withdrawal of suit‑‑‑Suit under sub‑rule (1) of R,1 of OXXIII, C.P.C., could be withdrawn at any time without prior permission of the Court, but under sub‑rule (2) of the said Rule plaintiff could, with permission of the Court, withdraw from the suit with liberty to institute fresh suit‑‑‑Where plaintiff did not desire to institute a fresh suit, he could withdraw his suit and permission to withdraw was not necessary‑‑‑Object of R.1 of O.XXIII, C.P.C. was to prevent a plaintiff from filing a fresh suit after having failed to conduct the first one with care and diligence‑‑‑Plaintiff had the right to withdraw his suit whenever he desired, but he could not file a fresh suit on the same subject‑matter unless permission was sought for filing a fresh suit.

Gul Sahib Din and others v. Malik Sultan Jan and others PLD 1982 SC 254; Malang Dad v. Mst. Mahpari and others PLD 1993 SC 6 and Chairman, Municipal Committee v. Habibullah PLD 1987 Azad J&K 135 ref.

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

‑‑‑‑O. XXIII, R. 1(2)‑‑‑Withdrawal of suit‑‑‑Application for‑‑­Requirements‑‑‑Application for withdrawal of suit with permission to file a fresh suit should not be vague and unfounded, but it must specifically state the formal defects on account of which ultimately the suit was liable to be dismissed‑‑‑On disclosure of formal defects there should be satisfaction of the Court that in fact the defects pointed out were likely to adversely affect the case of plaintiff that a permission to institute a fresh suit was granted by the Court.

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

‑‑‑‑O. XXIII, R. 1(3)‑‑‑Filing a fresh suit before withdrawal of pending suit‑‑‑Provision of sub‑rule (3) of R.1 of O.XXIII, C.P.C. could not be defeated by instituting a fresh suit before withdrawing the previously filed suit.

(d) Practice and procedure‑‑

‑‑‑‑ What was not allowed to be done directly, could, not be allowed to be done indirectly.

Raja Muhammad Siddique, Advocate for Appellants.

Ch. Muhammad Sharif Tariq and Nazir Ahmed Ghauri, Advocates for Respondents.

Date of hearing: 26th October, 2000.

P L D 2001 Azad J&K 33

Before Syed Manzoor Hussain Gillani, J

ALI ASGHAR ABBASI and others‑‑‑Petitioners

Versus

AZAD JAMMU AND KASHMIR COUNCIL through

Secretary, Azad Jammu and Kashmir Council

at Islamabad and others‑‑‑Respondents

Writ Petitions Nos.546 and 547 of 2000, decided on 16th March, 2001.

(a) Azad Jammu and Kashmir State Subject Act, 1980‑‑‑

‑‑‑‑Ss. 3 & 4‑‑‑Azad Jammu and Kashmir State Subject Rules, 1980, R.4‑--- Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.2, 4(5) & 44‑‑‑Writ petition‑‑‑Issuance of "State Subject Certificate"‑‑­Petitioners who had migrated from Indian Occupied Kashmir and were residing in different places in Azad Kashmir and were issued identity cards/ration cards by the Rehabilitation Department, had applied for "State Subject Certificates "‑‑‑District Magistrate rejected their applications on the ground that unless Azad Jammu and Kashmir Council Secretariat issued "No­ Objection Certificates" in favour of the petitioners, "State Subject Certificate" could not be issued in their favour‑‑‑Petitioners not only were duly registered in Azad Kashmir after obtaining clearance from all security agencies deployed in Azad Kashmir, but Identity Cards for the purpose of Ration Cards were also issued to them‑‑‑Petitioners being State Subjects, could not be refused "State Subject Certificates" nor could be deprived of their right of being State subjects for any reason as, the status of State Subject was a heriditary right and devolved in the same manner as the right of inheritance‑‑‑Authority could only cancel said certificates if it was satisfied that same were obtained by means of fraud, false representation or concealing any material fact‑‑‑Petitioners being entitled to issuance of "State Subject Certificate", order refusing to issue the same by the Authority was set aside by High Court.

Ghulam Hussain and 2 others v. Federal Government of Pakistan and others PLD 1993 SC (AJ&K) 153; Ayub Aziz and 3 others v. Azad Jammu and Kashmir Council and others PLD 1995 Azad 1&K 1; Azad Jammu and Kashmir Council v. Ajmal Bashir and 6 others 1999 MLp 203; Iqbal Razzar Butt v. Abdussalam Butt and 6 others 1998 SCR 387 and PLD 1993 Azad J&K 112 ref.

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

‑‑‑‑S. 4(5)‑‑‑Freedom of movement‑‑‑State Subject needed no permission from any Authority, for settlement in Azad Kashmir‑‑‑Person who was a State Subject was entitled to settle anywhere in Azad Kashmir without permission of any Authority as provisions of S.4(5) of Azad Jammu and Kashmir Interim Constitution Act, 1974 had guaranteed the right to every State Subject to move freely throughout Azad Kashmir and to reside and settle in any part thereof‑‑‑If, however, .the residence or the stay of a person at a particular place was .detrimental to the public interest, entry of State Subject could be bound into that particular area, but the right of State Subject to settle and reside in any part of State could neither be taken away nor could it be subject to formal permission or notification of the Government.

(c) Azad Jammu and Kashmir State Subject Act, 1980‑‑‑

‑‑‑‑Ss. 3 & 4‑‑‑Azad Jammu and Kashmir State Subject Rules, 1980, R.4‑‑‑ Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.2, 4(5) & 44‑‑‑Issuance of "State Subject Certificate" ‑‑‑Freedom of movement‑‑‑Once a person proved that he was a bona fide State Subject he was entitled to "State Subject Certificate"‑‑‑Registration/Ration Card issued by Azad Kashmir Rehabilitation Department or any other evidence adduced by a person, was sufficient proof of his being State Subject‑‑‑State Subject needed no permission or notification of Government for settlement to any part of State of Azad Jammu and Kashmir‑‑‑No "No‑Objection Certificate" was required from Azad Jammu and Kashmir Council Secretariat for issuance of "State Subject Certificate"‑ "State Subject Certificate" would not absolve or immune a person from liability to be proceeded under law, if he was found security risk or found involved in the activities prejudicial to the interest of State but it would not deprive him of the status of State Subject, neither could issuance of the certificate be subject to any clearance‑‑‑State Subject who possessed "State Subject Certificate" was entitled to Identity Card without any certificate/permission for permanent settlement.

Mir Sharafat Hussain and Noor Ullah Qureshi for Petitioners.

Advocate‑General and Khawaja Faqeer Ullah for Respondents.

P L D 2001 Supreme Court (AJ&K) 37

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

Messrs OVERSEAS PAKISTANIS FOUNDATION through Shahid Rafi, Managing‑Director, Overseas Pakistanis Foundation‑‑‑Appellant

versus

INCOME TAX APPELLATE TRIBUNAL AJ&K COUNCIL and 2 others‑‑‑Respondents

Civil Appeals Nos.45 and 46 of 2000, decided on 18th December, 2000.

(On appeal from the judgment of the High Court dated 15‑1‑2000 in Miscellaneous References Nos. 17 and 18 of 1996 and Writ Petition No. 147 of 1997).

(a) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 26‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42‑‑‑Appeal to Supreme Court‑‑‑Maintainability‑‑‑Appeal filed by the Managing Director of the Company was objected to on the ground that company being a registered company, appeal could be filed by the Board of Governors and not by its Managing Director alone‑‑‑Minutes recorded in the Register of the company showed that all the powers enjoyed by Board of Governors were delegated to the Managing Director‑‑‑Such delegation of powers being permissible under Memorandum of Articles of Association of the company, appeal was competently, filed by the Managing Director‑‑­Contention that Managing Director was not competent to take steps to file appeal, was repelled.

Government of Pakistan v. Premier Sugar Mills PLD 1991 Lah. 381; Bankers Equity Ltd. v. Sunflo Cit‑Russ Ltd. PLD 1999 Lah. 450 and Walton Tobacco Company and others v. Azad Government and others Writ Petition No.6 of 1992 ref..

(b) Azad Jammu and Kashmir Legal Practitioners and Bar Councils Act, 1995‑‑‑

‑‑‑‑Ss. 20 & 21‑‑‑Azad Jammu and Kashmir Supreme Court Rules, 1978, O. V, Rr. 1, 12 & 13‑‑‑Powers of Attorney Act (VII of 1882), S.2‑‑‑Azad Jammu and Kashmir Interim Constitution Act, (VIII of 1974), S.42‑‑‑Appeal to Supreme Court‑‑‑Competency‑‑‑Respondents had. contended that only an Advocate duly enrolled as an Advocate of Supreme Court was competent to act and plead in Supreme Court and a person who was not an Advocate of the Supreme Court was not legally competent to file an appeal or plead in the Supreme Court as a "Mukhtar" after receiving fee from the appellant Provisions of S.20 of Azad Jammu and Kashmir Legal Practitioners and Bar Councils Act, 1995 which regulated the practice of law of Advocates in the Courts, had not specifically provided that a' person who was not an Advocate of the Supreme Court or the High Court could not be appointed to act as an Attorney (Mukhtar) of a party‑‑‑Power of Attorney Act, 1882 and Azad Jammu and Kashmir Supreme Court Rules, 1978 also had not placed any such restriction‑‑‑Power of attorney executed in favour of counsel by appellant, was not void as being violative of law and presentation of appeal by him in Supreme Court was not incompetent.

(c) Income‑tax Appellate Tribunal Rules, 1981‑‑‑

‑‑‑‑S. 33‑‑‑Income Tax Ordinance (XXXI of 1979), Ss.133(8) & 136‑‑‑Azad Jammu and Kashmir Council Finance (Amendment) Act (IV of 1982), S.2(a)‑‑‑Civil Procedure Code (V of 1908), O.1, R.10‑‑‑Rules framed in Pakistan adapted in Azad Jammu and Kashmir‑‑‑Income Tax Appellate Tribunal Rules, 1981 framed by the Income Tax Appellate Tribunal in Pakistan, having been adapted in Azad Jammu and Kashmir vide S.2(a) of Azad Jammu and Kashmir Council Finance (Amendment) Act, 1982, contention that as the Rules were not framed by the Tribunal constituted by the Azad Jammu and Kashmir Council, could not be adapted by Azad Jammu and Kashmir Council was repelled ‑‑‑Azad Jammu and Kashmir Council was fully competent either to exercise the rule‑making powers itself or to delegate same to any other Authority through legislation‑‑‑Powers of rule‑making having been delegated by Council, contention that as the rules of procedure were framed by the Income Tax Appellate Tribunal functioning in Pakistan, same could not be adapted by Azad Jammu and Kashmir Council despite the fact that it was the sole Authority to legislate regarding the tax matters was also repelled‑‑‑Commissioner, Income Tax, being an important officer of the tax collecting machinery was required to be impleaded as a party by the rule framers so as to provide him an opportunity to putforth his point of view in the High Court before any questions of law were framed‑­Contention that the said rule was directory in nature and its non‑compliance should not have resulted in the dismissal of the application was also repelled by the Supreme Court.

Commissioner of Income‑tax, Government of Azad Jammu and Kashmir, Muzaffarabad v. Messrs United Builders, Corporation, Mirpur 19,86 PTD 208; Abdul Rahim v. Messrs United Bank Ltd. of Pakistan PLD 1997 Kar. 62; V. Vasantha‑Pai v. E.K. Ramaswamy AIR 1978 Mad. 342; Epari Chinna Krishna Moorthy v. State of Orissa AIR 1964 SC 1581; N.K. Papiah & Sons v. The Excise Comnnissioner AIR 1975 SC 1007; P. Ramiah v. Chief Secretary to the Government of Madras AIR 1950 Mad. 100; Appeal Committee,, Anakapalli Municipality v. Commissioner, Anakapalli Municipality AIR 1964 Andh. Pra. 357; Manton v. Brighton Corporation (1951) 2 All ELR 101; Gordon Dadds & Co. v. Morris (1945) 2 All' ELR 616; Ch. Abdul Latif v. Secretary, AJ&K Council 2000 PLC (C.S.) 210 and Archibald G. Hodge v. Queen (1883) 9.App. Cas. 117 ref:

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

‑‑‑‑S. 51‑‑‑General Clauses Act (X of 1897), S.24‑‑‑Rules framed under Income‑tax Act, 1922‑‑‑Enforcement in Azad Jammu and Kashmir‑‑‑Rules framed in. the year 1948 under Income‑tax Act, 1922 would be deemed to have been in force in Azad Jammu and Kashmir by virtue of S.24 of General Clauses Act, 1897 and S.51 of Azad Jammu and Kashmir – Interim Constitution Act, 1974.

(e) Interpretation of statutes‑‑‑

‑‑‑‑ Mandatory or directory nature of provision of law‑‑‑Whether a provision of law was to be treated as mandatory‑ or directory, would depend upon the nature of the statute or the rules and the intention of the rules framer or the Legislature behind the same.

Shafique Amjad, Attorney and Masood Ahmad Shaikh, Advocate for Appellant.

Mian Umar Mahmood Kasuri and Ch. Muhammad Afzal, Advocates for Respondents.

Date of hearing: 24th November, 2000.

P L D 2001 Azad J&K 46

Before Khawaja Muhammad Saeed, C.Y., Manzoor Hussain Gilani and Chaudry Muhammad Taj, JJ

Mirza JAVED IQBAL‑‑‑Petitioner

Versus

THE STATE through Chief Prosecutor, Ehtesab Bureau, Azad Kashmir‑‑‑Respondent

Criminal Miscellaneous No. 17 of 2001, decided on 2nd March, 2001.

(a) Azad Jammu and Kashmir Ehtesab Bureau Act, 2001‑‑‑

‑‑‑‑Ss. 10. 20 & 40‑‑‑Criminal Procedure Code (V of 1898), Ss. 496, 497, 498 & 561‑A‑‑‑Bail, grant of‑‑‑Powers of Ehtesab Court‑‑‑Applicability of provisions of Criminal Procedure Code, 1898‑‑‑Provisions of Code of Criminal Procedure, would apply to the proceedings under Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 unless there was anything inconsistent with its provisions‑‑‑Ehtesab Court was conferred with the jurisdiction to grant or refuse bail to the accused of any offence under the said Act‑Ehtesab Court being a subordinate Court to the High Court its orders or judgments were appealable before the High Court‑‑‑Provisions of Ss.496, 497, 498 & 561‑A, Cr.P.C. were also applicable to the proceedings under Azad Jammu and Kashmir Ehtesab Bureau Act, 2001‑‑‑Chairman of the Ehtesab Bureau was empowered with wide powers of admitting an accused to bail in any offence under Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 and releasing him with or without any condition from the custody or detention.

(b) Appeal‑‑

‑Appellate Court was vested with all those powers and jurisdiction which were conferred upon the Trial Court.

Mehram Ali's case PLD 1998 SC 1445ref.

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

‑‑‑‑S. 44‑‑‑Writ jurisdiction of High Court‑‑‑Scope‑‑‑Extraordinary writ jurisdiction of High Court could not be taken away through any subordinate legislation except the provisions mentioned in Azad Jammu and Kashmir Interim Constitution Act, 1974 in that regard.

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

‑‑‑‑Ss. 496, 497 & 498‑‑‑Bail, grant of‑‑‑Powers of High Court and Sessions Court‑‑‑Powers conferred on High Court and the Court of Session by S.498, Cr.P.C. were not ancillary and subsidiary to the provisions of Ss.496 & 497, Cr.P,C. and were meant to enlarge categories of persons to whom bail could not to granted under Ss.496 & 497, Cr. P. C. and to make the provisions for the situations and categories not covered by the said sections.

Zahoor Elahi v. State PLD 1977 SC 273; Anwar Saifullah Khan's case PLD 2000 Lah. 564; Raja Mumtaz Hussain Rathore's case PLD 1988 Azad J&K 33; Mehram Ali's case PLD 1998 SC 1445; Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others PLD 1996 Lah. 542; Ch. Muhammad Azam and others v. State PLJ 1983 Azad J&K 212, Musa's case 1986 PCr.LJ 578 and Muhammad Ayub's case PLD 1966 SC 1003 ref.

(e) Criminal trial‑‑‑

‑‑‑‑ Abscondence--‑‑ Absconder, defined and explained‑‑‑ "Absconder" would mean a person who was intentionally evading and avoiding service of notices, summons or warrants issued to him and had intentionally made himself inaccessible to the process of the law‑‑‑Would not matter if a person departed from his place or remained in it, if he concealed himself in either case, he would be said to be absconder but the mere fact that a person was absent, should not give rise to the assumption, without due enquiry and notice, that he was an absconder.

(f) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 87, 88, 497 & 512‑‑‑Penal Code (XLV of 1860), Ss.406, 409, 467, 468 fir. 109‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Bail, grant of‑‑‑Accused , previously was admitted to bail on merits by Court of competent jurisdiction and order of said Court was affirmed by the Supreme Court‑‑‑Intention of the accused did not appear to evade and conceal himself as he had been applying to dispense with his personal attendance‑‑‑Accused after cancellation of his bail earlier appeared before the Court within a period of two months‑‑‑Earlier order granting bail to the accused on merits should have been considered‑‑‑Facts forming the background of holding the accused as an absconder, were not sufficient to declare him as such‑‑‑Proceedings under 5.512, Cr.P.C. were taken against the accused without proceeding against him under Ss.87 & 88, Cr.P.C. which proceeding was against the provisions of law‑‑‑Accused was admitted to bail in circumstances.

1989 SCMR 1987 and Fazal Muhammad v. Muzaffar Hussain and others 1981 SCMR,959 ref.

Kh. Shahad Ahmed and Mirza Nisar Ahmad for Petitioners.

Ch. Muhammad Ibrahim Zia, Chief Prosecutor and Javed Naz, Deputy Prosecutor, Ehtesab for the State.

P L D 2001 Azad J&K 60

Before Syed Manzoor Hussain Gilani, Actg. C.J.

Chaudhry Muhammad Taj and Ch. Muhammad Reaz Akhter, JJ

Ch. MUHAMMAD YUSUF and others‑‑‑Petitioners

Versus

AZAD GOVERNMENT through Chief Secretary, Muzaffarabad and others‑‑‑Respondents

Writ Petitions Nos. 332, 336, 337 and 345 of 2001, decided on 30th May, 2001.

(a) Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance (X of 1970)‑‑‑

‑‑‑‑‑S. 5 las amended by Azad Jammu and Kashmir Legislative Assembly (Election) Amendment Ordinance (XXVII of 2001)]‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 31, 41, 24 & 4, Fundamental Right 7‑‑‑Writ petition ‑‑‑Legislative powers‑‑‑Power to make Ordinance ‑‑‑Competence‑‑‑Vires‑‑‑Amendment in Election Law‑‑­Amendment was made in S.5(2) of Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 by an amending Ordinance, before last date for filing the nomination papers whereby the academic qualification of Matriculation or its equivalent was provided for being elected as Member of the Assembly‑‑‑Petitioners/candidates had challenged said amendment alleging that amendment was made with a mala fide design to deprive the petitioners of their right to be elected as Members of Assembly, that it was against the equity clause of the Fundamental Rights provided under the Constitution; that the timing and manner of amendment was mala fide; that the amendment amounted to amending the Constitution which was not permissible etc.‑‑‑Validity‑‑‑Amending Ordinance was promulgated by the President under S.41 of Azad Jammu and Kashmir Interim Constitution Act, 1974 and had the same force and effect as an Act of the Assembly under subsection (2) of S.41 of the Constitution‑‑‑Ordinance having been validly enacted by the Competent Authority, could not be said to be ultra vires‑‑­Contention that Ordinance was promulgated at an inappropriate time and with mala fide designs, could not be accepted because promulgation of Ordinance was subject to the satisfaction of the President under given circumstances and not subject to a point of time‑‑‑Ordinance was promulgated by the President when the Assembly was not in session and it was not beyond the legislative competence of the Assembly‑‑‑Announcement of the Schedule of the election before promulgation of the amending Ordinance, would not affect validity of the Ordinance, firstly that exercise of power to promulgate the Ordinance was not subject to any point of time; secondly none of the vested rights of the petitioners was taken away as being a non‑Matric was not their vested right; and thirdly that qualification and disqualification of the petitioners was to be seen on the date of scrutiny of their nomination papers which was to be done subsequent to Gazette notification of the amending Ordinance‑‑‑Amendment was also not against equity clause of the Fundamental Rights provided under the Constitution as no restriction was imposed upon the freedom of association or party nor any qualification had been converted to disqualification by the said amendments.

1994 SCMR 1532; PLD 1993 SC 437, PLD 1993 SC 473; AIR 1963 SC 8012; 1993 PCr.LJ 48; 1995 MLD 1299; 1997 PCr.LJ 1837; 1983 SCMR 72; PLD 2000 SC(AJ&K) 1; 1999 MLD 268; PLD 1983 SC 453; PLD 1988 SC(AJ&K) 53; Fauji Foundation v‑. Shameem‑ur‑Rehman PLD 1983 SC 457; Raja Muhammad Niyaz Khan v. Azad Government PLD 1988 SC(AJ&K) 53; PLD 1999 SC 57; Muhammad Yousuf v. Irshad Sipra and others 1988 CLC 2475; Pir Sabir Shah v. Shad Muhammad Khan PLD,1995 SC 66; Jammu and Kashmir Tehreek‑e‑Amal Party v. Azad Government of Jammu and Kashmir PLD 1985 Azad J&K 95; O.K. Ghosh v E.X. Joseph AIR 1963 SC 812; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Miss Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66; Mian. Muhammad Nawaz Sharif v. President of Pakistan PLD 1998 SC 473; Mrs. Arshad Ali Khan v. Government of the Punjab 1994 SCMR 1532; Muhammad Ayyaz Khan v. District Magistrate and others 1995 PCr.LJ 587; PLD 1982 Lah. 77; Referring Authority v. Sadar Sikandar Hayat PLD 1982 SC(AJ&K) 112; Asif Ali Zardari v. The State 1993 PCr.LJ 783; Muhammad Fayaz and 5 others v. Shahnawaz and 30 others 1999 PLC (C.S.) 1493; Fazal Dad and others v. The State 1995 MLD 1299 and Nazir Hussain v. Zia‑ul‑Haq and others 1983 SCMR 72 ref.

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

‑‑‑‑Ss. 24 & 44‑‑‑Writ petition‑‑‑Qualification and disqualification of Member of Assembly‑‑‑Words "qualification" and "disqualification" had been separately mentioned in the Constitution as well as in the election law‑‑­Person who was disqualified would mean that due to lack of some quality or virtue, he was not entitled to a particular privilege, or right, but that would not mean that he was not qualified‑‑‑Terms "qualification" and "disqualification" were so interwoven that those were interchangeable as a person who was not qualified stood disqualified and a disqualified person was not qualified‑‑‑Even if a person was knowledgeable, qualified and having all the virtues of worldly affairs, he could be debarred if he did not fulfil particular criteria which the legislature deemed fit for a particular job or institution‑‑‑If any of the qualifications mentioned in S.24(I)(a) of Azad Jammu and Kashmir Interim Constitution Act, 1974 was made a disqualification or had a tendency of rendering any of the qualifications as disqualification that could be construed as defeating the express provisions of the Constitution ultra vires.

Mian Shahbaz Shareef v. Chaudhry Muhammad Altaf Hussain, Governor of Punjab, Lahore and 2 others PLD 1995 Lah. 541; Government of Pakistan v. Akhlaque Hussain PLD 1965 SC 527 and Muhammad Yousuf v. Muhammad Irshad and others 1988 CLC 2475 ref.

(c) Words and phrases‑‑‑

...... Knowledge and wisdom"‑‑‑Knowledge and wisdom were not subject to the certificates and degrees; it was a God gifted virtue‑‑‑Even illiterate or semi‑literate people had sea deep level of knowledge on account of their experience, inborn talent, deep non‑academic studies and in some cases informally educated or uneducated people have proved better than formally or well‑educated persons, but those were exceptions‑‑‑There were people who were degree‑holders and highly educated, but they proved failure and in some cases were parasites, but those were also exceptions‑‑‑Uneducated but knowledgeable people could guide, educate, train and transmit their wisdom and experience to the educated young generations who had to take over from them and taking over was a natural process for which one should be voluntarily prepared and accept the hard facts of the life.

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

‑‑‑‑Ss. 22, 24 & 31‑‑‑Creation and function of Legislative Assembly‑‑­Legislative Assembly was a forum created and regulated by the Constitution, law and rules‑‑‑Function of Legislative Assembly was to enact laws for carrying forward the policies of the Government for the welfare of the State and good governance‑‑‑Legislation was the primary field of functions of the Members of Assembly‑‑‑Government was to function in accordance with the laws made by the Assembly‑‑‑Political power of the State was vested in the Government and it had to exercise its authority as ordained by various Verses of Qur'an.

(e) Interpretation of statutes‑‑‑

‑‑‑‑ Law was to be read as it was and nothing could be put in or subtracted therefrom if words were clear.

Azad Government and others v. Genuine Rights Commission and 7 others 1999 MLD 268 ref.

Abdul Majeed Mallick, Abdul Rasheed Abbasi, Ghulam Mustafa Mughal, Shahid Bahar and Masood Khalid for Petitioners.

Khawaja Atta Ullah Chakk, Addl. A.‑G., Khawaja Shahad Ahmed and M. Tabbassam Aftab Atvi for Respondents.

Muhammad Akram Sheikh: Amicus curiae.