PLD 2002 Judgments - Pakistan Legal Archive

Courts in this Volume

Federal Shariat Court
High Court Azad Kashmir
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan
Supreme Court
Supreme Court Azad Kashmir

Federal Shariat Court

PLD 2002 FEDERAL SHARIAT COURT 1 #

P L D 2002 Federal Shariat Court 1

Present: Fazal Ilahi Khan, C. J., Dr. Fida Muhammad Khan and

Ch. Ejaz Yousaf, JJ

Mst. ZAFRAN BIBI‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.6/P and Criminal Reference No.7/I of 2002, decided on 6th June, 2002.

(a) Islamic Jurisprudence ‑‑‑

‑‑‑‑Criminal Laws of Islam ‑‑‑Hudood‑‑‑Islamic Criminal Laws, including the Hudood Laws, are designed, prescribed and promulgated on the basis of clear Injunctions contained in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.)‑‑‑Said time‑tested laws mainly aim at preservation and protection of life, honour and property of the citizens of an Islamic State and dispensation of justice without any discrimination ‑‑‑Irrespective of the consideration for sex, wealth, religion, creed, colour, language or any other factor, these laws provide safeguards to enable the citizens to enjoy peaceful environment, free from any encroachment on their fundamental human rights‑‑‑Like other laws, prosecuting or other components of law‑enforcing machinery, may err in its application in respect to various facts and circumstances but ideal nature of said laws in ensuring maintenance of public law and order, besides its other deterrent and reformative aspects, is admittedly far‑superior to the man‑made laws on account of its highly balanced approach to individual and public interests‑‑‑Depth of wisdom of these laws is unfathomable‑‑‑Strict standard of evidence is required to prove the offences in view of severity and gravity of some of the punishments‑‑One can only well realise the far‑reaching effects of the wisdom contained in the Islamic Criminal Laws if one could only visualize oneself stepping in the shoes of the aggrieved individuals and families subjected, to the heinous offences.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑

‑‑‑‑Ss. 5 & 8‑‑‑Proof of Zina ox Zina‑bil‑Jabr liable to Hadd‑‑‑Essentials‑‑Held, there must be either a confession of the accused of commission of offence of Zina, before a Court of competent jurisdiction, or, in the alternative, ocular evidence of at least four Muslim adult male witnesses whose veracity conforms to the standard of Tazkiya‑al‑Shahood (i.e. purgation).

‑‑‑‑S. 8‑---‑Allegation of Zina against a married woman whose husband had been convicted about nine years before in a murder case and was confined in r Jail ‑‑‑Proof‑‑‑ Hadd punishment‑‑‑Testimony of even one witness was not on the record and the whole case was based on circumstantial evidence coupled with the statements made by the accused, at different stages of the case‑‑Trial Court while awarding Hadd punishment had considered such statements as confession and, taking, into account the factum of pregnancy and subsequent delivery of a child as corroboration, deemed it a sufficient ground for culpability of the accused lady‑‑‑Statements of the accused made before police, which formed basis of formal F.I.R.; statement before the Magistrate recorded under S.164, Cr.P.C. and thereafter before the Trial Court under Ss.342 & 340(2), Cr.P.C. could, by no stretch of imagination, be called confession of the guilt‑‑‑Validity‑‑‑Scrutiny of record revealed that neither the statements of the accused came under the ambit of confession, envisaged by S.8, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 nor the pregnancy/delivery of child could, in circumstances, be const ed as sufficient basis for award of Hadd punishment.

(d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑--

----S. 8‑‑‑Confession in context of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑ Meaning‑‑‑Essentials for confession to be effective‑‑‑Wilful commission of offence of Zina and subjection to the same under coercion‑‑‑ Distinction‑‑‑When statements made by the lady accused contained the word "forcible" everywhere and her‑ stand, right from recording of the F.I.R. till final stage of the trial, was that she was subjected to "forcible Zina", no statement made by her at all stages could. be considered an acknowledgement of her guilt‑‑‑Nothing was available on record, in the present case, to dislodge the exculpatory portion of statements maintained by the accused lady throughout the trial; she was not stated to be a woman of easy virtue; no iota of evidence was available to show that she was having any illicit liaison with any male person; she was not stated to have been seen in the company of any accused nominated by her in her statements and no complaint about her conduct was ever made by any one of the locality‑‑‑Statement of accused, therefore, was to be accepted as a whole and prosecution could not make pick 'and choose exercise to formulate its case against the accused‑‑‑Statement of accused, unless there was anything cogent on record to contradict her, was to be accepted in its entirety‑‑Accused lady though had nominated two different accused for commission of Zina‑bil‑Jabr with her but prosecution could not get benefit from the same because defence of an accused, whatever absurdity it might contain, could not take the place of evidence against him/her‑‑‑Contradictions found in the statements of lady accused created doubt about the actual male accused, thus male co‑accused nominated by her got the benefit thereof and was acquitted.

Confession in context of the Ordinance means, inter alia, statement of an adult and sane person, regarding commission of offence of Zina with consent, for which the charge is founded before the Court of competent jurisdiction. It does not include commission of offence of Zina under duress. There is difference between wilful commission of offence of Zina and subjection to the same under coercion. The statements in the present case made by accused contain the word "forcible" everywhere. Her stand, right from recording of the F.I.R. till final stage of the trial, is that of her subjection to "forcible Zina". Thus, no statement made by her at any stage could be considered an acknowledgement of her guilt. The complaint made by her before the police was rather expression of a grievance to seek its remedy the nature of other statements is also exculpatory. The confession to be effective, in the context of the Ordinance, firstly must be voluntary, with free consent without any coercion or inducement, secondly must be explicit as to the commission of the actual offence of Zina with free will, thirdly must be four times in four different meetings and, fourthly, must be recorded by the Court who has competent jurisdiction to try the offence under the law. The prosecution is always loaded with the responsibility to produce its own evidence to establish guilt of an accused beyond reasonable doubt. In the present case there is nothing on record to dislodge the exculpatory portion of her statements maintained by her throughout the trial. There is nothing on record to even presume that she was a woman of easy virtue. There is also no iota of evidence to show even that she was having any illicit liaison with any male person. The available record is also completely silent about her having been seen in the company of any accused, nominated by her in her statements. No complaint about her conduct was ever made by any one of the locality. Therefore, her statement is to be accepted as a whole. The prosecution cannot make pick and choose exercise to formulate its case against the accused. Unless there is anything cogent on record to contradict her self‑exculpation, her statement according to the established principles of criminal law is to be accepted in its entirety. She has nominated two different accused for commission of Zina‑bil‑Jabr with her but the prosecution cannot get benefit from the same, because defence of an accused, whatever absurdity it might contain, cannot take the place of evidence against him/her. However, the contradiction found in the statements created doubt about the actual male accused and thus the co‑accused nominated by her got the benefit thereof and was acquitted. Hudood do not discriminate.

(e) Criminal trial‑‑

‑‑‑‑ Defence of an accused, whatever absurdity it might contain, could not take place of evidence against him/her.

(f) Criminal trial‑‑

‑‑‑‑ Unless there was anything cogent on record to contradict accused's self-exculpation, his/her statement was to be accepted in its entirety.

(g) Islamic Jurisprudence‑‑

‑‑‑‑Crime and punishment‑‑‑Punishment of Hudood‑‑‑Hudood do not discriminate.

(h) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑

‑‑‑‑S. 8‑‑‑Allegation of Zina against a married woman whose husband had been convicted about nine years before in a murder case and was confined in Jail‑‑‑Pregnancy and subsequent birth of child by the accused lady ‑‑‑Effect‑‑Mere pregnancy in itself was not a proof of her commission of Zina, for accused was a married lady whose husband was still alive and though he was imprisoned in jail but there was absolutely no embargo on any one of his visitors to meet him as he was not undergoing solitary confinement and the accused lady was visiting him off and on and had also occasions for privacy with him as he was, detailed to perform duty with one of the jail wardens and had more freedom than the other prisoners‑‑‑Imprisoned husband of the accused had submitted an affidavit and made statement on oath, wherein inter alia, he owned legitimacy of the child born during the trial‑‑‑Such being a highly pertinent aspect of the whole case it was certainly noticeable that who else could better testify and be a better judge of the pregnancy /legitimacy of child of a married lady than that of her husband‑‑‑Mere pregnancy of the accused, in circumstances, was no ground for her conviction.

(i) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑

‑‑‑‑S. 8‑‑‑Allegation of Zina against' an unmarried girl or a married woman having no access to her husband‑‑‑Mere pregnancy of such lady, by itself, when there was no evidence at all, was no ground for imposition of Hadd punishment if she comes out with the defence that pregnancy was the result of commission of rape on her.

Badaius, Sanai, Vol. II; Al‑Mughni by Ibn Qudama, Vol. VIII and Bidayatul Mujtahid, Vo1.II ref.

(j) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑

‑‑‑‑S. 8‑‑‑Allegation of Zina against a married woman having no access to her husband‑‑ ‑Pregnancy of such lady and delay in lodging F.I.R.‑‑Presumption‑‑‑Mere delay per se was no ground for drawing adverse inference in such‑like cases because they involve family honour‑‑‑Pregnancy and subjection to Zina‑bil‑Jabr being two different matters were not interconnected so as to provide basis for conjecture for her culpability‑ ‑‑Statement of accused lady under S.342, Cr.P.C., showed that the words "illegitimate child" had been used in a complex question but the lady was not asked about the source of her pregnancy anywhere and thus, she could not get an opportunity of explaining the incriminating circumstance appearing or finding basis in evidence, against her‑‑‑If a person is coerced to commit Zina, that person after subjection to Zina, shall not be liable to any punishment whether Hadd or Ta'zir‑‑‑Other party who caused coercion shall, however, be liable for punishment either of Hadd or of Ta'zir on the basis of evidence as the case may be and in case of pregnancy of a woman, either unmarried or, in case of being married, having no access to her husband, on her conception, if pleaded that that was the result of commission of offence of rape on her, she could not be awarded punishment of Hadd‑‑‑Burden of proving her lack of consent shifted to her and the truth of her statement could be ascertained from the attending circumstances at the time and after the occurrence‑‑‑Principles.

In the present case presumption against the accused was drawn on the basis of delay in her reporting the matter to police. Since after medical examination on the same date she was found pregnant of 7/8 weeks and the date of occurrence of commission of Zina‑bil‑Jabr as alleged by her was 11/12 days prior to the report it was conjectured that she was a consenting party to the commission of Zina but she disclosed the matter only when she became pregnant and got apprehended of its disclosure. Although promptness in lodging of F.I.R. in ordinary criminal cases has always been considered necessary to exclude the possibility of deliberation and fabrication, no hard and fast rule can be laid down to precisely prescribe time limit for this purpose. Nevertheless the Court can better evaluate the weight to be attached to delay that occurs in this connection, on the basis of overall evidence on record in a given case. Despite this, mere delay per se is' no ground for drawing adverse inference in such‑like cases because they involve family honour. Members of the family are normally hesitant to promptly make report to police and therefore, they wait for getting approval of male/elder members of the family to do so. In the present case the delay has been plausibly explained in the F.I.R. itself. The accused who is also the complainant waited for return of her father‑in‑law to lodge the report, as advised by her mother‑in‑law. Therefore, there was no reason to conclude that her delay in reporting the matter was on account of her long silence and consent to the sexual act and she only disclosed the occurrence when she came to know that she was pregnant. Nevertheless the very fact that she was found pregnant of 7/8 weeks could also have been considered a proof of her innocence, otherwise she could have easily advanced the date of occurrence to bring it in line with the period of her pregnancy. In this context it is also pertinent to note that in her initial report she made no reference to her pregnancy having been resulted from Zina‑bil‑Jabr. There was no reason with the Investigating Officer to conclude that she was telling lie about the date of occurrence. Her pregnancy and subjection to Zina‑bil‑Jabr were two different matters and were not inter‑connected so as to provide basis for conjecture for her culpability. For the first time the factum of pregnancy having been caused by Zina‑bil‑Jabr finds mention in her statement under section 164, Cr.P.C. but that statement is not proved on record. The Magistrate who recorded the statement had not appeared as a witness. At that time she had also no legal assistance. Besides the words:

I am pregnant due to Zina‑bil‑Jabr of the criminal.(28-3-2001)

most visibly appear to have been manipulated and subsequently inserted in between the lines. In her statement under section 342, Cr.P.C. the words "illegitimate child" have been used in a complex question but the poor lady was not asked about the source of her pregnancy anywhere. Thus, she could not get an opportunity of explaining the incriminating circumstance appearing or finding basis in evidence against her. Although she had the assistance of a counsel at that stage but the least that could be said in this respect is that the case had not been properly conducted.

If a person is coerced to commit Zina, that person, after subjection to Zina, shall not be liable to any punishment whether Hadd or Ta'zir. The other party who causes coercion shall, however, be liable for punishment either of Hadd or of Tazir on the basis of evidence, as the case may be.

In case of pregnancy of woman, either unmarried or, if married, having no access to her husband, when she conceives but pleads that that was the result of commission of offence of rape on her, she cannot be awarded punishment of Hadd.

Burden of proving her lack of consent shifts to her and the truth of her statement could be ascertained from the attending circumstances at the time and after the occurrence.

In fact this concept is based on the cardinal principle of Islamic Criminal Law that for conviction of someone for commission of unlawful sexual intercourse, it is not only necessary to make certain that he/she committed that act, but it is also to be ensured that he/she committed that of his/her own free‑will. In case someone performs that act under compulsion by someone, he/she is neither guilty nor liable to conviction. This position is summed up in the general principle of the Shariah which holds that a man is acquitted of responsibility for acts to which he has been compelled.

The sentence of Hadd is highly severe and deterrent. Therefore, every possible precaution is ordained to be adopted so that no innocent person gets punished. The point of view prescribed by Islamic Criminal Laws in this connection is evident from the rules based on the following sayings of the Holy Prophet (peace be upon him):

(a). "Avoid enforcing Hudood as much as you can". (Ibn Majah).

(c) "Keep Hudood away from Muslims as much as possible. If there is any way to spare people from punishment let them go. For it is much better that an Imam (i.e. Judge) should err in acquitting someone rather than he should err in punishing someone (who is not guilty)." (Tirmidhi).

(k) Islamic Jurisprudence‑‑

‑‑‑‑Crime and punishment‑‑‑Sentence of Hadd, award of‑‑‑Principles.

(a) "Avoid enforcing Hudood as much as you can". (Ibn Majah).

(c) "Keep ffudood away from Muslims as much as possible. If there is any way to spare people from punishment let them go. For it is much better that an Imam (i.e. Judge) should err in acquitting someone rather than he should err in punishing someone (who is not guilty) " (Tirmidhi).

(1) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑

‑‑‑‑Ss. 5, 8 & 10(2)‑‑‑Accused was charged for commission of offence under S.10(2), Offence of Zina/Enforcement of Hudood) Ordinance, 1979 which fell under the category of Ta'zir (penal punishment) and carried less sentence but the accused had been convicted for Rajm, a Hadd punishment without changing the charge‑‑-Validity‑‑‑Held, while the charge could be altered at the time of recording conviction from a greater offence to that of a lesser offence, in circumstances, the vice versa position was not permissible ‑‑‑Hadd sentence on such score awarded to the accused was not maintainable which was set aside by Federal Shariat Court.

Syed Iftikhar Hussain Gilani, Zafarullah Khan and Malik Fakhre Azam for Appellant.

Ms. Jehanzeb Rahim, A.‑G., N.‑W.F.P. with Ms. Musarat Hilali, Addl. A.‑G., N.‑W.F.P. for the State.

Dates of hearing: 5th and 6th, June, 2002.

High Court Azad Kashmir

PLD 2002 HIGH COURT AZAD KASHMIR 1 #

PLD 2002 Azad J&K 9

Before Muhammad Reaz Akhtar Chaudhry, J

MUHAMMAD HAFIZ KHAN‑‑‑Petitioner

Versus

ALI ASGHAR alias ASGHAR ALI and 5 others‑‑‑Non‑Petitioners

Civil Revision No.25 of 2001, decided on 2nd March, 2002.

(a) Counsel and client‑‑‑‑‑‑ Knowledge of counsel was always treated as knowledge of the party‑‑Counsel is duty bound to inform his client about order of the Court; at the same time it is the duty of client to seek information from his counsel regarding progress of the case‑‑‑No negligence on part of counsel or party could be a ground for exercise of discretion in his favour.

Muhammad Rafique v. Munshi Khan and others Civil Revision Petition of 6‑4‑1999; Mateen Alam v. Said Ali alias Sardar Khan Civil Revision Petition No.35 of 1993 ; AIR 1927 Mad. 707 and PLD 1983 SC (AJ&K) 25 ref.

(b) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.) ‑‑‑‑Preamble, Ss. 6 & 21‑‑‑Suit for pre‑emption ‑‑‑Doctrine of equity‑‑Applicability‑‑‑Scope‑‑‑Deposit of one‑fifth of ostensible price ‑‑‑Pre‑emption is a creation of statute which is an artificial right and defeats legitimate and legal transaction‑‑‑No equity is involved in it and if plaintiff in suit wants that Court should exercise discretion in his favour, then he has to show some very strong, cogent reasons and circumstances, entitling him for such indulgence‑‑‑Doctrine of equity could not be validly attracted to pre‑emption cases‑‑‑If plaintiff would failed to deposit one‑fifth of ostensible price, then plaint was to be rejected, unless very strong and cogent reasons were assigned by him.

PLD 1952 Pesh. 26 and PLD 1982 SC(AJ&K) 55 ref.

(c) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.)‑‑‑‑‑‑Ss. 6 & 21‑‑‑Suit for pre‑emption‑‑‑Deposit of one‑fifth of ostensible price‑‑Discretion of Court‑‑‑Court before the settlement of issues, could require plaintiff to deposit one‑fifth of probable value of suit land or property within such time as fixed by Court‑‑‑Non‑compliance of Court's order to deposit the one fifth of sale price‑‑‑Effect‑‑‑If plaintiff would failed to deposit amount within time fixed by Court, then his plaint would be rejected‑‑‑Provisions of S.21 of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993, were mandatory, but the Court had discretion to extend period for deposit money and that discretion was to be exercised judiciously and not arbitrarily or capriciously‑‑‑No latitude or undue concession could be allowed against a person who had acquired title in property by bona fide transaction‑‑‑Court, in exercise of such discretion, had to satisfy itself that omission on part of pre‑emptor was bona fide and not mala fide‑‑‑Conduct of pre‑emptor had to be adjudged according to facts of each case‑‑‑Discretion could only be exercised in favour of plaintiff if it was established that sufficient cause existed for non‑compliance of order of Court‑‑‑Right of pre‑emption being piratical in nature, Court has to insist upon strict compliance of law applicable to pre‑emption suits.

Muhammad Rafique v. Munshi Khan and others Civil Revision Petition of 6‑4‑1999 ref.

(d) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.)‑---‑‑‑Ss. 6 & 21‑‑‑Suit for pre‑emption ‑‑‑Deposit of one‑fifth of ostensible price‑‑‑Discretion of Court‑‑‑Only ground advanced by plaintiff who failed to deposit one‑fifth of price within time according to direction of Court, was that he was not present on the relevant date of hearing when order regarding deposit of one‑fifth of consideration amount was passed and that his counsel could not inform him about the same‑‑‑Validity‑‑‑Such was no ground for exercise of discretion in favour of plaintiff as it was fundamental duty of counsel to inform his client/plaintiff and at the same time it was also duty of plaintiff to seep. information from his counsel regarding further progress of his case‑‑‑No discretion could be exercised in favour of negligent and indolent person‑‑‑Where the Appellate Court had exercised discreation wrongly and without any jurisdiction in favour of plaintiff, judgment passed by Appellate Court was set aside and order rejecting the plaint by Trial Court, was restored.

Shabir Ahmed Tabassum and. Muhammad Mansha Khan forPetitioner.

Rana Javed Akhtar Khan for Non‑Petitioners.

PLD 2002 HIGH COURT AZAD KASHMIR 9 #

PLD 2002 Azad J&K 9

Before Muhammad Reaz Akhtar Chaudhry, J

MUHAMMAD HAFIZ KHAN‑‑‑Petitioner

Versus

ALI ASGHAR alias ASGHAR ALI and 5 others‑‑‑Non‑Petitioners

Civil Revision No.25 of 2001, decided on 2nd March, 2002.

PLD 1952 Pesh. 26 and PLD 1982 SC(AJ&K) 55 ref.

Muhammad Rafique v. Munshi Khan and others Civil Revision Petition of 6‑4‑1999 ref.

Shabir Ahmed Tabassum and. Muhammad Mansha Khan forPetitioner.

Rana Javed Akhtar Khan for Non‑Petitioners.

PLD 2002 HIGH COURT AZAD KASHMIR 14 #

P L D 2002 Azad J&K 14

Before Ghulam Mustafa Mughal, J

ARIF HUSSAIN DAR‑‑‑Petitioner

Versus

BOARD OF REVENUE through Secretary, Muzaffarabad and 5 others‑‑‑Non‑Petitioners

Writ Petition No.381 of 2001, decided on 27th February, 2002.

(a) Civil service‑‑‑‑‑ Departmental rules required that a seniority list was to be maintained by Authorities of approved candidates of "Patwari" in Districts and appointment was to be made only according to that seniority list, keeping in view merit‑‑‑Petitioner, according to merit list was at S.No.18 whereas opposing candidates who were appointed, were at Serial Nos.7 and 8 on merit list‑‑‑Keeping in view rule of merit, opposing candidates had rightly been appointed.

Azad Government and another v. Saif Ali Mughal and others Civil Appeal No. 138 of 2001; PLD 1980 Kar. 166 and M.D. Tahir, Advocate v. Federal Government ' thiough Secretary, Cabinet Division, Pakistan, Islamabad and 2 others PLD 2000 Lah. 251 ref.

(b) Interpretation of statutes‑‑‑‑‑‑‑ Policy or notification could not override statutory rules framed by Government under the statute‑‑‑Executive instructions and policies could not amend statutory rule.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of .1974)‑‑‑‑‑‑‑S. 44‑‑‑Writ jurisdiction‑‑‑Scope‑‑‑Question of fact could not be gone into by High Court in exercise of writ jurisdiction.

Muhammad Yaqoob Mughal and Farooq Hussain Dar for Petitioner.

Syed Sajjad Hussaain Hamdani for Respondent Nos. 1 to 4.

Khawaja Muhammad Nasim and Khawaja Tariq Saeed for NonPetitioners Nos.5 and 6.

PLD 2002 HIGH COURT AZAD KASHMIR 20 #

P L D 2002 Azad J&K 20

Before Muhammad Reaz Akhtar Chaudhry, J

AZAD JAMMU AND KASHMIR, MUZAFFARABAD EHTESAB BUREAU through Chairman‑‑‑Applicant

Versus

KHALIL AHMED ABBASI‑‑‑Non‑Applicant

Criminal Revision No. 127 of 2001, decided on 14th March, 2002.

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑‑‑‑‑S. 46(1)‑‑‑Supervisory and controlling powers of High Court‑‑‑Scope‑‑Nature‑‑‑Such powers are related to administrative rather than judicial aspect‑‑‑High Court being custodian of justice, the object of conferring such powers upon it was to keep its supervisory control upon subordinate judiciary effectively‑‑‑High Court not being Court of appeal or revision under said provision of law, could not provide any relief to a person‑‑‑Such i' supervisory powers enable High Court to keep eyes on all subordinate Courts so that they may not fail to perform their duties and also may not exceed their jurisdiction‑‑‑Superior Courts, under said powers, are not allowed to Interfere on merits‑‑‑High Court thus would not convert itself into Court of appeal or revision while exercising such powers‑‑‑High Court, however, could direct subordinate Courts to act in certain manner justified by law including power to take disciplinary action‑‑‑Such powers could not be invoked by a party to obtain certain relief.

1999 MLD 1847; 1999 MLD 1847; 1995 PCr.LJ 97; 1994 PCr.LJ 1806; 2001 PCr.LJ 160; PLD 1989 Kar. 404; PLD 1970 Pesh. 169; Emperor v. Tarapore AIR 1940 Sindh 230; Sant Lal Mahadeo Prasad v. Kedar Nath AIR 1935 All. 519; Rajkumar v. Ramsundar AIR 1932 PC 69; Jalaluddin .v. Jalauddin 1962 SC (C.A.622/61); PLD 1987 Kar. 652; PLD 1972 Kar. 165 and PLD 1971 Lah. 878 ref.

(b) Criminal Procedure Code (V of 1898)‑‑‑‑‑‑‑Ss.167 & 63‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.46(1)‑‑‑Ehtesab Act (IX of 1997), S.4‑‑‑Azad Jammu and Kashmir Ehtesab Act, 2001,. S.10(e)‑‑‑Judicial remand of co‑accused‑‑Supervisory and controlling powers of High Court‑ ‑‑Judicial Officer while granting remand, had to weigh evidence to decide whether accused should be detained or not and they should not grant remand in mechanical manner and it was imperative for the Court to apply its judicial mind‑‑‑Was necessary that reasonable cause for remand should exist and if the Magistrate found that no reasonable grounds existed, then he should not grant remand‑‑‑Magistrate had to scrutinize acts of police and ensure that there was substance in them‑‑Magistrate had to consider evidence collected by police and ensure that the same justified detention of accused, because right of liberty is most precious right of a citizen‑‑‑Detention of a person without any legal justification would create a sense of injustice and insecurity in society and mischief which could not be imagined‑‑‑Should police fail to satisfy the Magistrate about accusation attributed to accused, then Magistrate had no jurisdiction to grant remand and he should discharge accused‑‑‑Fundamental duty of Magistrate was to furnish reasons for obtaining remand‑‑‑Basic object of S.167 (3). Cr.P.C. was that Magistrate should not record order of remand in mechanical manner without examining record and reasons‑‑‑If after considering the record and material produced by police and merits of case, Magistrate was not satisfied and did not grant remand, then his order would not be interfered by High Court while invoking powers under S.46 (1) of Azad Jammu and Kashmir Interim Constitution Act, 1974.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)-----‑‑Ss. 44 & 46(1)‑‑‑Writ jurisdiction and jurisdiction of superintendence and control of High Court‑‑‑Distinction‑‑‑No resemblance existed between writ jurisdiction and jurisdiction of superintendence and control of High Court, as there was lot of difference between both the jurisdictions.

Chaudhry Muhammad Ibrahim Zia, Chief Prosecutor for the Ehtesab Bureau.

Karam Dad Khan for the Non‑Applicant.

Karachi High Court Sindh

PLD 2002 KARACHI HIGH COURT SINDH 1 #

P L D 2002 Karachi 1

Before Saiyed Saeed Ashhad, CJ

THE STATE‑ ‑‑Petitioner

Versus

HUSSAIN and others‑‑‑Respondents

Criminal S.M. Revision No. 2 of 2000, decided on 17th July, 2001.

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

‑‑‑‑Ss. 497(5) & 439‑‑‑Penal Code (XLV of 1860), 5.324/506(2)‑‑Application for cancellation of bail‑‑‑Accused were charged for ineffective firing as nobody had received any fire‑arm injury‑‑‑Circumstances were sufficient to possibly conclude that S.324, P.P.C. had been misapplied or it was applied on account of mala fides‑‑‑Offence under 5.506(2), P.P.C., no doubt, was non‑bailable, but grant of bail in non‑bailable offences not punishable with death, imprisonment for life or ten years was a rule and its refusal an exception‑‑‑Prosecution had not referred to any extraordinary or special circumstance which would warrant refusal of bail to the accused‑‑Since the evidence in possession of prosecution did not, prima facie, connect the accused with the alleged offence, their abscondence alone could not be enough for holding them guilty or believing them to have committed an offence falling in the prohibitory clause of S. 497(1), Cr.P.C:‑‑‑Bail allowed to accused by Trial Court was not recalled in circumstances.

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

‑‑‑‑S. 497(5)‑‑‑Cancellation of bail ‑‑‑Principles into consideration for cancellation of bail are causing fear and alarm to the complainant and causing fear and alarm to the complainant and the prosecution witnesses; likelihood of the witnesses being won over and their evidence being tampered with; likelihood of repetition of the commission of the alleged crime; likelihood of the abscondence of the accused and bail granting order being arbitrary, capricious and against the evidence available with the prosecution.

‑‑‑‑S. 497(5)‑‑‑Cancellation of bail‑‑‑Principle‑‑‑Consideration for grant of bail and for cancellation of the same are altogether different and once bail has been granted by a Court of competent jurisdiction, then strong and exceptional grounds are required for cancellation thereof.

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

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

A.Q. Halepota for the Complainant.

Salahuddin Haider and Abdul Latif Channa for Respondents.

Date of hearing: 26th March, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 8 #

P L D 2002 Karachi 8

Before Saiyed Saeed Ashhad, C. J., Sarmad Jalal Osmony and Wahid Bux Brohi, JJ

THE STATE‑‑‑Petitioner

Versus

Mian MUHAMMAD SHAHBAZ SHARIF and others‑‑‑Respondents

Special Anti‑Terrorism Acquittal Appeals Nos. 46 and 50 of 2000 and Miscellaneous Applications Nos. 853, 854 of 2000, decided on 25th May, 2001.

(a) Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑S. 25(4)‑‑‑Appeal against acquittal‑‑‑Maintainability‑‑‑Advocate‑General had been authorised and directed by the Provincial Government by necessary Notification and letters to file appeals against acquittal and for enhancement of sentence of accused in accordance with the provisions of S.25(4) of the Anti‑Terrorism Act, 1997‑‑‑To prosecute or enforce a matter judicially included as of necessity the power or the right to file the required appeals by the person, who had been authorised to pursue the appeals‑‑‑Any act on the part of the Advocate‑General would give the suggestion or lead to the presumption that he had been duly authorized and directed to do so‑‑‑Letter issued by the Provincial Government; addressed to the Advocate‑General conveying necessary sanction to prefer appeal against the impugned judgment, had been legally brought on record in accordance with the procedure‑‑‑Accused had not been able to establish beyond any reasonable doubt that the requirement of S.25(4) of the Anti‑Terrorism Act, 1997 had not been complied with‑‑‑Petitions seeking the appeals to be dismissed in limine were dismissed in circumstances.

Haji Muhammad Ibrahim v. State and 2 others 1998' PCr.LJ 850; Faiz Muhammad and others v. Mehrab Shah and others PLD 1997 Pesh. 166; State through Advocate‑General, Sindh v. Hanif Ahmed and others 1994 SCMR 749; State v. Muhammad Nasim Baig 1989 PCr.LJ 1842 and State v. Nooro alias Noor Muhammad and others 1998 PCr.LJ 35 distinguished.

Muhammad Umar Farooq v. The State 1995 PCr.LJ 851; Jalil Ahmad v. Public Service Commission and another 1998 CLC 435; Black's Law Dictionary, 6th Edn., pp. 295, 296, 1237; Shorter Oxford English Dictionary, 4th Edn. (1993), p.473; Oxford English Dictionary, 4th Edn., (1993), Vol. 2, p.2422; Nawab Khan v. The State PLD 1959 SC 4 and Kadir Bux and others v. The Crown PLD 1955 FC 79 ref.

(b) Words and phrases‑‑

‑‑‑‑Word "pursue" ‑‑‑Meaning and connotation.

New Shorter Oxford English Dictionary, 4th Edn. (1993), Vol. 2, p.2422 ref.

Raja Qureshi, Advocate‑General, Sindh for the State.

Ijaz Hussain Batalvi, Khawaja Haris for Respondents Mian Muhammad Nawaz Sharif and Respondents Mian Muhammad Shahbaz Sharif and 5 others.

Date of hearing: 23rd May, 2000.

PLD 2002 KARACHI HIGH COURT SINDH 18 #

P L D 2002 Karachi 18

Before Wahid Bux Brohi, J

AFSAR ZAMIN‑‑‑Applicant

Versus

THE STATE‑ ‑‑Respondent

Criminal Bail Application No. 1052 of 2001, decided on 29th August, 2001

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

‑‑‑‑S. 497‑‑‑Juvenile Justice System Ordinance (XXII of 2000), Ss. 2(b) & 7‑‑‑Penal Code (XLV of 1860), S.380/34‑‑‑Bail‑‑‑'Child'‑‑‑Definition‑‑‑Age of accused according to police was between 17 and 18 years‑‑‑Such police opinion ex facie was sufficient to attract the provisions of Juvenile Justice System Ordinance, 2000, as even one day less than 18 years would bring the accused within the definition of "child" as given in S.2(b) of the said Ordinance‑‑‑Court on agitation of the plea of the young age of the accused was under a statutory obligation under S.7 of the Ordinance to record a finding, after an inquiry including the medical report, about his age‑‑Court would be committing an error by placing unrestricted reliance solely on "Hulia Form" etc. of the accused for determining his age‑‑‑Accused was charged for an offence under S.380, P.P.C. which was punishable with seven years' R.I. and he was in custody for a period of more than seven months‑‑Had the point of age been determined in accordance with law as a prerequisite condition, a statutory right would have accrued in favour of accused for release on bail, as even the charge against him had not yet been framed‑‑‑In view of the figures 17/18 years and in absence of any medical report to the contrary the benefit arising out of the circumstances was to be' extended to the accused, who as such was entitled to bail‑‑‑Accused was granted bail accordingly.

(b) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑S. 7‑‑‑Determination of age‑‑‑Exercise under the provisions of S.7 of the Juvenile Justice System Ordinance, 2000, is not only to be undertaken at the stage of trial, but also in bail proceedings.

‑‑‑‑Preamble‑‑‑Purpose and import‑‑‑Liberal interpretation‑‑‑Juvenile Justice System Ordinance, 2000, is aimed at extending protection to the children involved in criminal litigation and their rehabilitation in society‑‑‑Ordinance in a way safeguards the human rights of a section of society who deserve reasonable concession because of their tender age and, therefore, it is to be construed liberally in order to achieve the said object.

Shamsul Hadi for Applicant.

Javed Akhtar, State Counsel for the State.

Date of hearing: 29th August, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 20 #

P L D 2002 Karachi 20

Before Muhammad Mujeebullah Siddiqui, J

Mst. KANIZ FATIMA ---Plaintiff

Versus

FAROOQ TARIQ and others---Defendants

Civil Suit No. 337 of 1999, heard on 24th September, 2001.

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

----Art. 14---Dignity of man---Scope---No attempt on the part of any person individually, jointly Or collectively to defame or disgrace another person, thereby diminishing, decreasing and degrading the dignity, respect, reputation and value of life should be allowed to go with impunity--Situation is aggravated if it affects the honour and respect of any person in public life or one concerned with collective good of the public, in any walk of life.

(b) Islamic Jurisprudence-

---- Maqasid-ul-Sharah---Types---There are six Maqasid-ul-Sharah, which are to be protected and they are Hifzul Din (protection of faith), Hifzul Nafs (protection of life), Hifzul Mal (protection of property), Hifzul Aql (protection of intellect), Hifzul Irz (protection of dignity) lnd Hifzul Nasb (protection of paternity).

---- Qazf---Defamation.--Remedies---In Islamic society, causing damage to the honour and dignity and defaming by way of false allegations on the basis of sexual illicit relationship, is punishable with Qazf, which provides punishment of 80 stripes and the evidence of such person is not to be accepted at all---In case of other kinds of attack on the honour or dignity, the person who makes any such attempt should be saddled with financial liability by way of penalty or fine---Any such attempt is punishable under criminal as well as civil law.

(d) Defamation--

----Quantum of damages---Evaluation---Journalist was proceeded against for publishing a false report against the plaintiff---Defendant/journalist opted to remain absent and he was proceeded ex parse during the trial---Plaintiff claimed damages to the extent of Rs. 10 Million---Validity---Amount of damages claimed in the plaint was not material---Person causing damage to reputation, respect, hour and dignity of man/woman should be made to realise that it was against the basic human rights protected in Islam, every civilised society and the Constitution of Pakistan---High Court stressed that recurrence of such instances should be curtailed and the yellow journalism should be discouraged ---Damages to the extent of Rs. 1,00,000 were awarded to the plaintiff---Suit was decreed accordingly.

Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Sharif v. Nawab Din PLD 1957 Lah. 283 and PLD 1994 SC 693 ref.

M. L. Shahani for Plaintiff.

Defendants (absent).

Date of hearing: 24th September, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 24 #

P L D 2002 Karachi 24

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

M. SIDDIQUE‑UL‑FAROOQI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Appeal No. 18 of 2000, decided on 30th August

Per Muhammad Mujeebullah Siddiqui, J.‑‑

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

‑‑‑‑Ss. 10(a)/9(a)(vi)‑‑‑Appreciation of evidence‑‑‑Accused had made all the appointments on merit offering reasonable salary in accordance with the policy already in existence prior to his appointment as Managing Director of House Building Finance Corporation, in the interest of day‑to‑day working of the Institution against the existing vacancies which had been approved even after the arrest of the accused and during the present Government‑‑Prosecution had failed to establish that the accused had made any appointment to gain benefit or favour for himself or .any other person and that any wrongful loss was caused to the Government exchequer with the appointments made by him on contract or daily wages basis‑‑‑Head of a Department or an Institution might sometimes exceed his normal administrative powers in the interest of the Institution and under some wrong impression about his authority on the basis of a practice in vogue or on account of a policy framed by the predecessors and continuance thereof without any objection, more particularly when it was in the interest of smooth working of the Institution‑‑‑Every such irregularity was not to be treated as misuse of authority and particularly same was not to be treated as a criminal offence‑‑‑Prosecution had, thus, failed to establish the commission of offence as defined in S.9(a)(vi) of the National Accountability Bureau Ordinance, 1999 by the accused and consequently he was acquitted of the charge.

(b) Criminal trial--

‑‑‑‑Conviction‑‑‑Prosecution for getting conviction of an accused is required to establish beyond reasonable doubt all the ingredients constituting the offence and any lacuna, infirmity or doubt appearing in the case has always to be resolved in favour of the accused.

‑‑‑‑S. 10(a)‑‑‑Mere irregularity on the part of accused not sufficient to constitute the offence‑‑‑Irregular use of authority may attract disciplinary action under the Service Rules, but in order to establish the offence of corruption and corrupt practices mere irregularity on the part of holder of a public office or any other person is not sufficient‑‑‑Prosecution must establish misuse of authority coupled with the intention to gain any benefit or favour for himself or for any other person or to make attempt to do so.

(d) Criminal trial‑‑‑

‑‑‑‑Offence‑‑‑Where an offence is constituted of more than one ingredient all of them have to be established and if any one or more ingredients are not established then the accused cannot be convicted for the commission of the offence merely on committing one part of the act which in itself does not constitute the totality of act amounting to an offence.

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

‑‑‑Ss. 10(a)/9(a)(iii)‑‑‑Appreciation of evidence‑‑‑Accused had sent the gifts out of the entertainment funds of the House Building Finance Corporation not for the image‑building of the Corporation or improving its business but for improving personal relations with the men‑in‑authority and to strengthen the personal rapport with them‑‑‑Sending of gifts to men‑in‑authority, administrative, judicial, political, civil and military or the persons wielding the sceptre, in an Islamic polity was strictly prohibited being a bribe which was an offence making the giver and the acceptor both equally guilty who were deprived of the mercy of Allah‑‑‑Where the said gift was extended from public exchequer it was not only a bribe but was misappropriation of the public exchequer and the criminal breach of trust which aggravated the gravity of the offence‑‑‑Conviction of accused was consequently upheld‑‑Accused, however, had undergone a great ordeal and thus his sentence was reduced to the imprisonment already undergone by him and reduction in fine to the amount spent in sending the said gifts by him‑‑‑Direction disqualifying the accused to contest election and to hold public office for 21 years was upheld.

Sahih Al‑Bukhari; Sahih Al‑Bukhari, Arabic English, Vol. III by Dr. Muhammad Muhasin Khan, Islamic University‑Al Madina‑Al-Munauwara; Al‑Sunnan Kubra Lil‑Bahaqi by Abi‑Humed Saadi, Vol. 10, p.138; Jarimatul Rishwah by Abdullah bin Abdul Mohsin Al‑Mansoor Al-Teraqi, published by Tamatul Imam Muhammad Bin Saood, pp. 76 to 81; Kanzul‑Amal, Vol. 6, p.56; Al‑Mabsoot Lil Sarkhasi, Vol. 16, p.82 and Ahkamul Quran Lil Jasas, Vol. 4, p.87 ref.

Per S. Ahmad Sarwana, J., agreeing with Muhammad Mujeebullah

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

‑‑‑‑Ss. 10(a)/9(a)(iii)‑‑‑Appreciation of evidence‑‑‑All the persons who were the beneficiaries of the gifts from the accused (Managing Director, House Building Finance Corporation) had no direct or indirect connection with the object and business of the House Building Finance Corporation and were not in a position to bestow any benefit or advantage to the said Corporation except to the accused‑‑‑Accused had not stated or indicated anywhere that the gifts were sent for the object, purpose and business of the Corporation‑‑‑By sending the gifts for his personal benefit to the persons in authority from the funds of the Corporation placed at his disposal to be used for the benefit, interest, business and object of the Corporation, the accused being a public servant had committed the offence of criminal breach of trust which was liable to punishment under the Pakistan Penal Code, 1860 and NAB Ordinance, 1999‑‑‑Conviction of accused was upheld with reduction in his sentence.

The Responsible Director by Peter Souster, published by the Institute of Chartered Accountants in England and Wales, London, 1986 Edn., p. 21 ref.

Fahim Riaz Siddiqui for Appellant.

Muhammad Anwar Tariq, DPGA and Aamir Raza Naqvi for the State.

Date of hearing: 17th May, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 54 #

P L D 2002 Karachi 54

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

Messrs GOLDEN PLASTICS (PVT.) LTD. ‑‑‑Petitioner

versus

COLLECTOR OF CUSTOMS and others‑‑‑Respondents

Constitutional Petition No.D‑305 of 1992, decided on 14th November, 2001.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 32 & 202‑‑‑Distinction between Ss. 32 & 202, Customs Act, 1969‑‑Provisions of S.32 of the Act related to non‑levy of duty/charge or short‑levy or erroneous refund‑‑‑Such provisions were not applicable to recovery proceedings under 5.202 of the Act in respect of a demand created as a result of original assessment.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 32, 80 & 81‑‑‑Notice under S.32 of the Customs Act would not be required to be issued in a case, where provisional assessment was made under S.81 of the Act and thereafter within period of limitation, final assessment order was made under S.80 of the Act and Department had not alleged non levy or short‑levy of duty/charge.

‑‑‑‑S. 196‑‑‑Remedy of appeal/revision provided against final assessment order was not illusory in nature.

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

‑‑‑‑S. 196‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Petitioner after receipt of intimation about‑ final assessment order dated 1‑3‑1987 neither challenged same in appeal nor in Constitutional petition till initiation of recovery proceedings under S.202 of the Customs Act in January, 1992‑‑‑Validity‑‑‑Constitutional petition filed on 9‑2‑1992 suffered from laches‑‑‑Assessment order had attained finality, which could neither be allowed to be assailed in Constitutional petition nor any exception could be taken to initiation of recovery of Government dues‑ ‑‑Constitutional petition was dismissed being without any substance.

Assistant Collector Customs v. Khyber Electric Lamps Manufacturing Company, 2001 SCMR 838; Messrs Said Ghani v. The Central Board of Revenue, Government of Pakistan, 1990 CLC 511 and Collector of customs v. Messrs S.M. Ahmed & Company (Pvt.) Limited 1999 SCMR 138 ref.

Sher Afghan for Petitioner.

Raja Muhammad Iqbal for Respondents.

Date of hearing: 14th November, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 60 #

P L D 2002 Karachi 60

Before Ghulam Nabi Soomro and Muhammad Mujeebullah Siddiqui, JJ

MUHAMMAD IDREES‑‑‑Petitioner

versus

COLLECTOR OF CUSTOMS and others‑‑‑Respondents

Constitutional Petition No. D‑1190 of 1994, decided on 11th October, 2001.

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 201‑‑‑Sale of goods‑‑‑Methods‑‑‑Goods can be sold after due notice to the owner by public auction or tender or private offer or with the consent of owner in writing, in any other manner‑‑‑No other manner has been provided/prescribed by Legislature.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 201(1)‑‑‑Registration of Auctioneers and Auction Procedure Rules, 1980, Rr.17 & 24(2)‑‑‑Standing Order No.3/1991(A), dated 23‑4‑1991, C1.V‑‑‑Standing Order No.2/1992(A), dated 13‑1‑1992, para.5‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Open auction‑‑‑Re‑bidding on receipt of private offer‑‑‑Scope‑‑‑Petitioner being highest bidder in open auction had deposited on the spot more than 25 % of bid amount‑‑‑Respondents put the lot to re‑bidding after receiving from another party an offer to pay more than the petitioner's bid‑‑‑Contention of petitioner was that after deposit of 25 % of bid money, respondents could not put the lot to re‑auction‑‑‑Validity‑‑‑Procedure of post‑auction bids/private offers or receiving of higher bid as provided in Standing Order No.3/1991(A), dated 23‑4‑1991 and Standing Order No.2/1992(A), dated 13‑1‑1992, had no place in the provisions of S.201 of the Customs Act or the Rules‑‑‑Collector by making provisions for post‑auction bids had exceeded his jurisdiction and contravened the provisions of S.201 of Act and the Rules‑‑‑Provisions for post‑auction bids/offers contained in such Standing Orders were invalid and anything done or acted upon in pursuance thereof had no legal validity‑‑‑Petitioner, after giving highest bid and depositing 25 % of bid money, had got vested right, of which he could not be deprived without recourse to R.24(2)‑‑‑Petitioner's highest bid had not been rejected under R.17 within the period provided therein, which would be deemed to have been accepted‑‑‑High Court accepted the Constitutional petition with costs, and declared the re‑bidding and acceptance of bid of the other party as illegal and void, and directed respondents to issue delivery order to petitioner in respect of disputed lot on payment of balance amount of bid given by him.

‑‑‑‑ Things should be done as they are required to be done or not at all.

(d) Practice and procedure‑

‑‑‑Nobody can be allowed to contravene, flout or violate the statutes or rules framed thereunder in name of national interest or any other so‑called high or subline idea or ideal‑‑‑Rule of law requires that every person in execution of law should follow strictly the law as laid down and should not exceed the limit of law for any reason whatsoever.

(e) Registration of Auctioneers and Auction Procedure Rules, 1980‑‑‑

‑‑‑‑R. 24(2)‑‑‑Customs Act (IV of 1969), S.201‑‑‑Standing Order by the Department‑‑‑Validity‑‑‑While issuing Standing Order, Collector must remain strictly within the parameters of the provisions of Customs Act, 1969 and the Rules framed by Central Board of Revenue‑‑‑Provisions of Standing Order violating/contravening the provisions of S.201 of Customs Act, 1969 or such Rules, would be invalid and of no legal effect to that extent.

Abdul Qadir Khan for Petitioner.

Raja Muhammad Iqbal for Respondents Nos. 1, 2 and 3.

Fida Muhammad Khan for Respondent No.6 .

Date of hearing: 11th October, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 72 #

P L D 2002 Karachi 72

Before Muhammad Roshan Essani and S.A. Rabbani, JJ

THE STATE‑‑‑Appellant

versus

JAM MASHOOQ ALI and others‑‑‑Respondents

Criminal Accountability Appeal No.7 of 2000, decided on 15th September, 2001.

(a) Ehtesab Ordinance (CXI of 1996)‑‑‑

‑‑‑‑Ss. 3, 4, 10, 14, 21 & 24‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑‑Appeal against acquittal‑‑‑Corruption and corrupt practices‑‑Allegation against accused 'A' was that he while holding public office, had illegally allotted plots to other accused persons in order to favour them and thereby had caused loss to public exchequer‑‑‑Trial Court acquitted the accused 'A'‑‑‑Validity‑‑‑Prosecution witnesses had themselves belied the accusations made against accused 'A'‑‑‑Accused 'A' had simply forwarded applications to concerned Authorities for allotment of plots, but no action whatsoever had been taken on his recommendations‑‑‑Plots in question had been allotted after observing all codal formalities by concerned Authorities‑‑Prosecution had not brought on record any evidence to show that any wrongful loss had been caused to public exchequer by act of accused 'A'‑‑Culpability of other accused persons in the commission of alleged offence thus, had not been proved‑‑‑Not an iota of evidence was available to the effect that accused 'A' being holder of public office had acted in abuse of his authority and used his official position with mala fide and dishonest intention with a view to earn illegal gratification and money for himself and/or for providing illegal gain, favour and profits to other accused persons‑‑Prosecution had also failed to prove that other accused persons in collusion or collaboration with accused 'A' had earned any illegal benefit or pecuniary gain for themselves‑‑‑Trial Court had rightly appraised and evaluated the evidence‑‑‑Impugned judgment did not suffer from stupidity or perversity‑‑‑Appeal against acquittal of ‑ accused was dismissed in circumstances.

Imran Hussain v. Amar Arshad and 2 others 1997 SCMR 438; Zahoor Hussain Shah v. The State and others 1994 SCMR 1257 and Yar Muhammad and 3 others v. The State 1992 SCMR 96 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Necessary ingredients for constituting a criminal offence are mens rea, intention and knowledge.

‑‑‑‑ Deception, corruption or fraud cases‑‑‑Prosecution, in such‑like cases, has to prove beyond shadow of doubt that the act complained of was tainted with an intention to earn wrongful gain for himself and cause wrongful loss to other party.

Amir Raza Naqvi for Appellant.

M. Ashraf Kazi for Respondent No. 1.

Abdul Razzaq D. Soomro for Respondent No.2.

S.A. Samad Khan for Respondent No.3.

Nemo for Respondents Nos. 4(i) and (ii).

Abdul Waheed Kanjo for Respondent No. 5.

Date of hearing: 28th August, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 83 #

P L D 2002 Karachi 83

Before Sarmad Jalal Osmany and Fail Muhammad Qureshi, JJ

Messrs NOONI TRADERS, KARACHI through Managing Partner‑‑‑Appellant

versus

PAKISTAN CIVIL AVIATION AUTHORITY through Airport Manager, Karachi‑‑‑Respondent

High Court Appeal No. 176 of 2001, decided on 6th August, 2001.

(a) Easements Act (V of 1882)‑

Ss. 00, 63 & 64‑‑‑Specific Relief Act (I of 1877), Ss. 12 & 42‑‑Revocation of licence‑‑‑Rely‑‑‑Grantor can revoke licence at, any stage, unless it is coupled with transfer of property or licensee has executed works of a permanent character in the licensed premises‑‑‑Where licence is revoked, the only remedy of licensee would be a suit for damages and that specific performance or other equitable relief would not be available to him.

M.A. Nasir v. Chairman, Pakistan Eastern Railways PLD 1965 SC 83 ref.

(b) General Clauses Act (X of 1897)‑‑‑

‑‑‑‑S. 24‑A‑‑‑Import and scope of S.24‑A, General Clauses Act, 1897‑‑Import of S.24‑A is not that the Act would only apply where no particular law holds 'the field, rather it regulates the exercise of power by State functionaries under various laws of the land‑‑‑ Provisions of S.24‑A are not in conflict with the provisions of any other law as the same recognizes the doctrine that where a Statute confers power to make any order or give any direction to any authority, office or person, the same should be exercised reasonably, fairly, justly and for advancement of purpose of the enactment.

Shaheen Pak Container Services (Pvt.) Limited v. Trustees of the Port of Karachi PLD 2001 Kar. 30; Neimat Ali Goraya v. Jaffer Abbas 1996 SCMR 827 and Syed Matloob Hussain v. Brooke Bond Pak. Ltd. 1992 SCMR 227 ref.

‑‑‑‑S. 60‑‑‑General Clauses Act (X of 1897), S.24‑A‑‑‑Application of S.24‑A of General Clauses Act to Licence Agreement‑‑‑Provisions of S.24‑A of General Clauses Act, 1897, could be pressed into service while considering revocation of Licence Agreement vis‑a‑vis the rights and obligations of the parties.

Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others PLD 1997 SC 342 and Messrs Airport Support Services v. Airport Manager, Quaid‑e‑Azam International Airport, Karachi and others 1998 SCMR 2268 ref.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Special law takes precedence over a general law.

(e) Interpretation of statutes‑‑‑

‑‑‑‑ Statute must .be construed according to, its own terms and not with reference to any other Statute to whittle down the provisions of the former.

Neimat Ali Goraya v. Jaffer Abbas 1996 SCMR 827 and Syed Matloob Hussain v. Brooke Bond Pak. Ltd. 1992 SCMR 227 ref.

(f) Judicial review‑‑

‑‑‑‑ All executive actions/discretion have to be measured on the touchstone of reasonableness and fairness, and should display complete transparency and bona fides, failing which the same would be open to judicial review and correction in appropriate cases‑‑‑Such standards ran also be applied in cases of Licence Agreements‑‑‑Easements Act (V of 1882), Ss.52 to 64.

(g) Judicial review‑‑‑

‑‑‑‑ Decision on economic and financial policy‑‑‑Judicial review ‑‑‑Scope‑‑High Court should not sit in judgment over the economic and financial policies of State Functionaries provided that these are transparent, above board bona fide and non‑discriminatory‑‑‑Courts are most familiar with such concepts and are eminently qualified to adjudicate thereupon.

(h) Mala fides‑‑‑

‑‑‑‑Burden of proof ‑‑Mala tides is one of the most difficult thing to prove‑‑Onus is entirely upon the person alleging mala fides to establish the same, because there is presumption of regularity with regard to all official acts and until such presumption is rebutted the action cannot be challenged merely upon a vague allegation of mala fides.

Federation of Pakistan v. Saeed Ahmed PLD 1974 SC 151 ref.

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

‑‑‑‑S. 42‑‑‑Easements, Act (V of 1882), Ss. 60 & 64‑‑‑Suit for declaration that Licence Agreement was subsisting would not be maintainable in view of S.42 of Specific Relief Act, 1877, which entitles a litigant only to seek a declaration as to his legal character or right to property.

Messrs Pacific Multinational (Pvt.) Limited v. L‑G. Police, Sindh PLD 1992 Kar. 283; Messrs Airport Support Services v. Airport Manager, Quaid‑e‑Azam International Airport, Karachi and others 1998 SCMR 2268; Verral v. Great Yarmouth .Borough Council, (1980) 1 AER 839; Halsbury's Laws of England, IVth Edn., Vol.1X; Waqar Hussain v. NRL 1993 CLC 2497; Hanifa Bai v. Muhammad Musa PLD 1998 Kar. 234; Balgamwala Oil Mills v. Shakarchi Trading A.G. PLD 1990 Kar. 1; M.A. Nasir v. Chairman, Pakistan Eastern Railways PLD 1965 SC 83; Muhammad Yakoob v. Health Officer, MCH 1973 SCMR 184; Royal Foreign Currency v. CAA 1998 CLC 374; Zaidis' Enterprises v. CAA PLD 1999 liar. 181; Suit No. 1060 of 1999 (unreported); Data Textile Ltd. v. Karachi Stock Exchange 1999 MLD 108; Shahzadi Baber v. Hina Housing Project 1994 CLC 1601; OGDC v. Shujauddin Ahmed PLD 1970 Kar. 332 and H.C.A. No.356 of 2000 ref.

(j) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S. 105‑‑‑Easements Act (V of 1882), S.52‑‑‑"Lease" and "Licence"‑‑Distinction‑‑‑Transfer of interest and an exclusive right to possession is granted in lease‑‑‑Whereas licence does not contemplate a transfer of interest in property‑‑‑Licence is a permissible right as the licensee holds the licensed property purely at the behest of its grantor, which can be revoked at any stage.

Royal Foreign Currency v. CAA 1998 CLC 374 and Zaidis' Enterprises v. CAA PLD 1999 Kar. 181 ref.

Rashid A Rizvi for Appellant.

Musthtaq A. Memon for Respondent.

Dates of hearing: 23rd, 24th. 25th. 26th, 27th, 30th, 31th July and 6th August, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 98 #

P L D 2002 Karachi 98

Before Wahid Bux Brohi, J

Syed SAEED SHAH‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.1214 of 2001, decided on .24th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss. 392/397/411‑‑‑Bail, grant of‑‑Bail earlier was granted to the accused by the Judicial Magistrate and the grounds on which bail was granted still existed in favour of the accused and the only changed circumstance was the recovery of golden chain and locket from the almirah placed in the house of the accused‑‑‑Identification of the property was made in the presence of police and not before a Magistrate‑‑Ornaments were not in exclusive possession of the accused, but had been recovered from almirah lying in his house‑‑‑Offences to that extent would at the most fall within the ambit of S. 411, P. P. C. ‑‑‑Prosecution could be able to establish its case at the trial, but for the time being the guilt of the accused called for further inquiry‑‑‑Accused was entitled to bail in circumstances.

M. Noman Khan for Applicant

Sharafat Ali Khan, State Counsel for the State.

Date of hearing: 24th September, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 99 #

P L D 2002 Karachi 99

Before Sarmad Jalal Osmany, J

Haji PUNHAL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.488 of 2001, decided on 26th December, 2001.

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant ofVicarious--- liability---Consideration of---Scope---Allegation contained in the F.I.R. showed that the accused had caught hold of the deceased, and the co-accused had fired with a T.T. Pistol at the deceased due to which the deceased had died---Accused prima facie could be connected to the crime and could be held vicariously liable for his act and at bail stage vicarious liability could be considered provided the material placed before the Court justified the same---Where the co-accused had taken an active part in the crime viz. caused injury to the deceased or facilitated the other co-accused to kill the deceased, the issue of vicarious liability at the bail granting stage would be decided against the co-accused---Accused could be tentatively connected to the crime since he had prima facie facilitated the murder of the deceased and could be held vicariously liable for the crime---Bail application of accused was rejected, in circumstances.

Mehmood Akhtar v. The State 1995 SCMR 310; Basharat Hussain v. Ghulam Hussain 1978 SCMR 357; Shahid v. The State 1994 SCMR 393; Muhammad Haleem Khan v. The State 1986 PCr.LJ 1457; Mst. Barkat Bihi v. Gulzar 1979 SCMR 65; Munawar v. The State 1981 SCMR 1092; Muhammad Rasheed v. The State 1979 SCMR 92; Hafiz Imam Bux v. Muhammad Bux 1979 SCMR, 197; Gul Khan v. Gul Daraz Khan 1995 SCMR 1765 and Shah Zaman v. The State PLD 1994 SC 65 ref:

Abdul Rasool Abbasi for Applicant the State

PLD 2002 KARACHI HIGH COURT SINDH 102 #

P L D 2002 Karachi 102

Before Ata‑ur‑Rehman, J

SHAMAS‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.561, 572, 573, 590, 591, 592, 593, 597, 603 and 605 of 2001, decided on 18th September, 2001.

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

‑‑‑‑S. 497‑‑‑Surrender of Illicit Arms Act (XXI of 1991), Ss. 1(3) 4, 6 & 7(c)‑‑‑Bail, grant of ‑‑‑Authority though had issued a notification under S.1(3) of Surrender of Illicit Arms Act, 1991 whereby Surrender of Illicit Arms Act, 1991 had been enforced in the Province, but had not issued notification under, S.4 of the said Act disclosing the specific time and the authority on which and before whom the illicit arms were to be surrendered .which notification was a must to invoke provisions of S.7(c) of said Act whereunder case was registered against the accused‑‑‑In absence of notification under S. 4 and wide publicity as envisaged in S. 6 of the Act, no case under S.7(c) could be registered against the accused ‑‑‑F.I.Rs. in cases registered under S.7(c) which were without force of law, were to be treated as registered under provisions of West Pakistan Arms Ordinance, 1965 and were to be tried by the Courts, having jurisdiction in the matter‑‑‑Sessions Courts, having no jurisdiction to try the cases, orders passed by them on the bail application were set aside‑‑‑Accused could apply for bail by filing fresh application before the respective Trial Courts for seeking relief.

Hussain Ahmed v. The State 1992 MLD 1618 ref.

Sobraj L.P. for Applicant (in Cr.B.As. Nos. 561 and 605 of 2001).

Ali Nawaz Ghangliro for Applicant (in Cr.B.As. Nos.590, 591, 592 and 593 of 2001).

Khaiid Hussain Shahani for Applicant (in Cr.B.As. Nos.572, 573, 597 and 603 of 2001). .

Muhammad Bachal Tunio, Addl. A.‑G., Ali Azhar Tunio, Asstt, A.‑G.

Muhammad Ismail Bhutto for the State.

Altaf Hussain Surahio for the State.

PLD 2002 KARACHI HIGH COURT SINDH 106 #

P L D 2002 Karachi 106

Before Wahid Bux Brohi, J

SULEMAN KHAN‑‑‑---Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1078 of 2001, decided on 4th eptember, 2001.

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

‑‑‑‑S. 497(1); proviso third‑‑‑Penal Code (XLV of 1860), Ss.392/324/353/34‑‑‑Bail, grant of‑‑Bail sought on the ground of statutory delay, was declined by the Trial Court holding that the accused was a angerous criminal‑‑‑Trial Court declined bail to the accused taking judicial notice of the increase in crimes of robbing and dacoity and opined that persons involved in such offences did not deserve leniency‑‑‑In present case, immediately after commission of the offence an encounter had taken place with the bandits in the street and the accused was captured on the spot alongwith pistol of 30 bore‑‑‑Accused in circumstances did not deserve the concession of bail‑‑‑Despite the role assigned to the accused it would be against the spirit of law if detention of the accused continued indefinitely without trial‑‑‑‑Considering that right of the trial has always to be safeguarded, the Trial Court was directed to complete the trial ‑within specified period.

Fazal Ellahi v. State PLD 1982 SC(AJ&K) 20; Ghulam Yasin v. State 1968 SCMR 1308 and Fazal‑ur‑Rehman v. State PLD 1981 SC(AJ&K) 10 ref.

Asadullah Baloch for Applicant.

PLD 2002 KARACHI HIGH COURT SINDH 108 #

P L D 2002 Karachi 108

Before Muhammad Ashraf Leghari, J

Syed AHMED TAIMOUR BUKHARI‑‑‑Applicant

Versus

SHUJA‑UR‑REHMAN KHAN‑‑‑--Respondent

First Rent Appeal No.370 of 1997, decided on 6th September, 2001.

Cantonments Rent Restriction Act (XI of 1963)‑‑---

‑‑‑‑S. 17‑‑‑Bona fide personal need of landlord‑‑‑Landlord had two wives and their children and the premises was required for accommodation of his first wife and her children‑‑‑Such fact had been specifically averred in the pleadings‑‑‑Landlord had stated the fact on oath but he had not been cross-examined on that point and the veracity of landlord remained unshaken‑‑Effect‑‑‑Plea of personal bona fide need in good faith was proved beyond any doubt as the fact on oath was consistent with the contents of pleadings‑‑Order of eviction passed by the Rent Controller did not suffer from any illegality and infirmity and the same was based on sound and logical reasoning‑‑‑Where no misreading of misappreciation of evidence was seen on the record, High Court declined to interfere with the order passed by Rent Controller.

S.M. Nooruddin and others v. Saga Printers 1998 SCMR 2119; Wasim Ahmed Adenwala v. Shaikh Karimriaz 1996 SCMR 1055, Messrs F.K. Irani & Co. .v. Begum Feroze 1996 SCMR 1178; National Development Finance Corporation, Shahrah‑e‑Quaid‑e‑Azam Lahore v. Shaikh Naseemuddin and 4 others P L D 1997 SC 567; Messrs Chaudhri Wire Rope Industries (Pvt.) Limited, Muridke through General Manager v. Secretary to the Government of the Punjab and Rural Development Department, Lahore and others 1994 CLC 1060; Abdul Wahid Lehri v. Arbad Mir Nawas and others 1997 SCMR 1789; Muhammad Khurshid v. Wazirzada and others 1986 SCMR 181; Mrs. Abdul Hamid Khan v. Shamsul Hassan 1988 CLC 2294; Sardar Khan v. Riaz Ahmed and others 1986 SCMR 1981; Mrs. Rukaya Sultana v. Mrs. Zaree Zafar 1996 CLC 1060; Messrs Eveready Picture Ltd. v. Chaman Begum PLD 1982 Kar. 770, Haroon Qasim and another v. Azam Suleman Madha PLD 1990 SC 394 and Habib v. Abdul Ghani 1993 MLD 396 ref.

Date of hearing: 27th August, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 113 #

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PLD 2002 KARACHI HIGH COURT SINDH 115 #

P L D 2002 Karachi 115

Before Muhammad Moosa K. Leghari, J

ROSHAN ALI ‑‑‑Applicant

Versus

AMIR BUX and another‑‑‑Respondents

Criminal Miscellaneous Application No. 166 of 1995, decided on 24th August, 2001.

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

‑‑‑‑S. 561‑A‑‑‑Penal Code (XLV of 1860); Ss.153‑B, 166, 499, 500, 504 & 506‑‑‑Quashing of proceedings‑‑‑Application for‑‑‑Allegations levelled by the complainant against the applicant/accused in complaint were that the minor, children of the complainant who were studying in school, were made to attend a peace rally according to the policy of Government which rally was arranged under the orders of the applicant/accused who at the relevant time was serving as District Education Officer‑‑‑Notice was served by the complainant on the applicant which was replied by the applicant‑‑‑Further allegation was that the complainant who was enjoying good reputation, respect and honour in the town, had been defamed by the applicant by certain comments made by the applicant in his reply given by him in response to legal notice of the complainant‑‑‑No allegation existed in complaint against the applicant that he had induced the students to take part in any kind of political activity‑‑‑Contents of the complainant had revealed that no intentional insult had been caused to the complainant and there was also no criminal intimidation on the part of the applicant‑‑‑Trial Magistrate took cognizance under provisions of P.P.C. which were incorporated by the complainant in his complaint without determining the applicability of the said provisions‑‑‑No allegation existed in the reply of the notice which could constitute the offence under Ss. 499 & 500, P.P.C and there was absolutely no insult, threat or abuse whatsoever in order to constitute any offence under Ss.504 & 506, P.P.C.‑‑‑Other provisions had also been misapplied‑‑Prosecution having proved to be motivated by malice and the Magistrate having acted in unlawful manner and in colourable exercise of powers, proceedings against the applicant/accused were quashed, in circumstances.

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

‑‑‑ S. 200‑‑‑Examination of complainant‑‑‑Object‑‑‑Main object of S. 200, Cr.P.C. dealing with examination of the complainant was to protect the public from false, frivolous and vexatious complaints filed against them in Criminal Courts‑‑‑Magistrate must not lightly accept the written complaint and should not proceed to issue process until he had fully sifted the allegations made against the accused and was satisfied that prima facie the case had been made out against those who were accused of the criminal offences.

Allah Bachayo for Applicant.

Muhammad Azeem Panhwar for the State.

Date of hearing: 24th August, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 122 #

P L D 2002 Karachi 122

Before Muhammad Ashraf Leghari, J

WASEEM AHMED ‑‑‑--Petitioner

Versus

Syeda ERUM SHARIF‑‑‑--Respondent

Constitutional Petition No.382 of 2000, decided on 13th September, 2001.

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

‑‑‑‑S. 25‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Custody of minor‑‑‑Failure to produce evidence‑‑‑Dismissal of application on account of such failure‑‑‑Father of the minor filed the application under S.25 of the Guardians and Wards Act, 1890, and t, application was adjourned on different dates on one pretext or the other‑‑‑On the day when evidence was to be produced by the father of the minor, ‑he sought adjournment‑‑‑Guardian Court declined to adjourn the case and dismissed the application‑‑‑Validity‑‑‑Case diaries indicated that the father of the minor sought only one adjournment and he had not been afforded proper opportunities to adduce his evidence‑‑‑Since the matter was not decided on merits but on technical objection the orders of two Courts below were neither just nor proper‑‑‑High Court set aside the orders passed by the two Courts below and the case was remanded to the Guardian Court for recording the evidence of parties accordingly.

Mazhar Ali B. Chohan for Petitioner.

Muhammad Irfan for Respondent.

Date of hearing: 13th September, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 125 #

P L D 2003 Karachi 125

Before Muhammad Afzal Soomro, J

ALI MUHAMMAD and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-339 of 2001, decided on 4th October, 2001.

Criminal Procedure Code (V of 1898)---

----S 497---Penal Code IXLV of 1860). S.302/34---Bail---Complainant and eye-witnesses had sworn affidavits wherein they had deviated from their statements made in the F. I. R. and under 5.161, Cr.P.C. and had exonerated the accused of the alleged offence ---Mashirs of the recovery had also filed affidavits denying the recovery of the crime weapon and the empties in their presence---Reasonable doubt, thus, had been created with regard to the guilt of accused and their case required further inquiry as to which of the two versions of the prosecution witnesses was more reliable and trustworthy--Presently no reasonable grounds were available to believe the accused being guilty of the offence charged - with---Bail was allowed to accused in circumstances.

Allah Bux v. Nazar Hussain Shah and another 1979 SCMR 137; Rehmat Ali and another v. The State 1979 SCMR 30; Muhammad Hayat and others v. The State 1998 SCMR 474; Muhammad Nawaz alias Najja v. The State 1991 SCMR 111; Muhammad Nawaz and others v. The State 1989 PCr.LJ 1126; Ali Gul and 3 others v. The State 1986 PCr.LJ 433 and Naseer Ahmed v. The State PLD 1997 SC 347 ref.

Manzoor Ahmed Junejo for Applicants.

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

PLD 2002 KARACHI HIGH COURT SINDH 131 #

P L D 2002 Karachi 131

Before S. Ahmed Sarwana and Syed Zawwar Hussain Jaffery, JJ

M. ADIL HAYAT KHAN-----Petitioner

Versus

GOVERNMENT OF SINDH and others-----Respondents

Constitutional Petition No.D-1611 of 2000, heard on 6th July, 2001.

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

---Art. 199---Civil Procedure Code (V of 1908), O.XXXIX, R.2(3)--Constitutional petition---Interim injunction---Disobedience of injunction granted by High Court---Contempt of Court---Respondent University denied admission to the candidate for not producing Permanent Residence Certificate----High Court in exercise of Constitutional jurisdiction passed interim order whereby the respondent University was directed to grant admission without the certificate if the candidate had otherwise come on merit---Respondent University instead of granting the admission to the candidate tiled application seeking clarification of the injunction order and did not pursue the application---Effect---Order passed by the High Court should have been complied with by the respondent University without any hesitation or delay and no such application ought to have been filed--Fact of not pursuing the application indicated that it was not bona fide and was filed with ulterior motive to display the absolute authority of the University in granting of admission, delay the proceedings and thereby deprive the candidate of his legitimate right to get admission in the University on merit---By not complying with the order of High Court and tiling application seeking clarification which was patently mala fide, the respondent University disobeyed and showed disrespect to the order issued by the Court and thereby interfered with and prejudiced the administration of law and justice---Official of the respondent University admitted his responsibility for the disobedience of Court's orders and requested for leniency---Such apology tendered by the official respondent was defiant, not bona fide and High Court declined to accept the same---Official respondent being officer of educational institution, High Court took a lenient view and convicted him to detention until rising of the Court---Order passed by the respondent University was set aside and the petition was allowed accordingly.

(b) Contempt of Court---

---- Submission of apology---Procedure---If a person wants to purge himself, he must submit his apology immediately, unconditionally, without any explanation and defiance and not attach any condition therewith.

Muhammad Aslam v. Mehmood Ali PLD 1992 SC 104 ref.

---- Justifying act of disobedience of Court's order---Effect---Where the order passed by High Court was very clear and could be understood by any person who had passed the High School Examination in Pakistan, justifying the act of non-compliance of the order reflected- stubborn and unreasonable attitude of the contemner ---High Court did not accept the apology tendered by the contemner, as the same was patently defiant, qualified, was not bona fide and did not exhibit sincerity on his part---Such official was guilty of contempt of the Court in circumstances.

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

---Art. 199---Constitutional jurisdiction of High Court---Writs, issuance of--Powers of High Court in Pakistan and in England---Comparison---In exercise of its extraordinary Constitutional jurisdiction under Art. 199 of the Constitution, High Court enjoys very wide and immense powers to correct errors, issue any order or direction in the interest of justice and to safeguard the fundamental rights of the citizens guaranteed by the Constitution---Scope of extraordinary powers of High Court under Art. 199 of the Constitution are wider than that of the English High Courts in writ jurisdiction to issue the specified writs and is controlled only by the provisions of the Constitution and. the judgments of the Supreme Court of Pakistan---High Court has, the power to issue writs of mandamus, quo warranto, certiorari, habeas corpus and any other writ and declare or strike down any law which is found to be contrary to or in conflict with the provisions of the Constitution which includes the power to strike down any provisions of an Act, or the prospectus issued by the University thereunder, if the same is found to be in conflict with the provisions of the Constitution, in violation of fundamental rights guaranteed by the Constitution or against the principles of natural justice.

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

----Art. 199---Constitutional petition---Relief, grant of---High Court has power to grant the final relief prayed and also has the power to grant interim relief.

Sindh Employees' Social Security Institution v. Adamjee Cotton Mills PLD 1975 SC 32- ref.

(f) Maxim---

Nemo debet esse judex in propria sue cause" and "nemo sibi esse judex vel suis jus decere debet"---Connotation---It is fundamental principle in the administration of justice in the civilized world that a person cannot be a judge in a cause wherein he is interested.

Broom's Legal Maxims, Sweet and Maxwell Limited, London 1975 Edn., p.68 and Kabir Ahmed v. S.D.O. and Controlling Authority, Chittagong and others PLD 1968 Dacca 49 ref.

(g) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court ---Scope--Educational institution---Contempt of Court---Declining admission to Engineering University, despite clear direction from High Court---Officials deciding validity of order of High Court---Effect---Not the University, its officers or its Advocates who could decide what was legal or illegal but it was the prerogative of High Court, the judicial organ of the State, which was the arbiter and had the jurisdiction and power to decide the validity of any law, order, rule and any document issued by, any person or authority in the Province, subject, of course, to the provisions of the Constitution and the supervision of the Supreme Court---Was duty of every person and authority in the land to obey the orders of the Court and any disobedience thereof was liable to punishment---Refusal of official to obey the order of the High Court was neither prudent nor in accordance with the established law---High Court took serious notice of the act and observed that if such defiant and unlawful conduct was not checked, it would result in chaos and anarchy which could not be allowed under any circumstances as law and order in society must be maintained and no person should be admitted to disobey or break the law which included orders issued by the Courts of law.

Muhammad Zia Kayani for Petitioner.

Muhammad Tasnim for Respondent No.4.

Suleman Habibullah, Addl. A.-G

Alleged Contemner in person.

Date of hearing: 6th July, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 141 #

P L D 2002 Karachi 141

Before Wahid Bux Brohi, J

LIPS RECORDS (PRIVATE) LTD. ‑‑‑Plaintiff

versus

Ms. HADIQA MAHMOOD KIANI and 2 others‑‑‑Defendants

Suit No. 1613 of 1999, decided on 19th January, 2000.

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

‑‑‑‑S. 21(a)(b)‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑Interim injunction, grant of‑‑‑Contract not specifically enforceable‑‑Compensation in terms of money‑‑‑Defendant was a singer and the plaintiffs claimed to be her promoters‑‑‑Plaintiffs alleged that due to non‑performance of the defendant of her part of contract, the plaintiffs could not release album of songs being sung by the defendant thus the plaintiffs had suffered heavy losses‑‑‑Interim injunction was sought against the defendant‑‑‑Validity‑‑‑If the losses suffered could be compensated in terms of money as adequate relief, specific performance of such contract was hit by the provision of S.21(a) of the Specific Relief Act, 1877‑‑‑Performance of the agreement, in the present case, predominantly depended upon the personal qualification of the defendant as a singer, therefore provisions of S.21(b) of the Specific Relief Act, 1877 were also attracted‑‑‑Plaintiffs were to extricate themselves from such legal complications at the trial but for the purpose of interim relief the plaintiffs had no arguable case‑‑‑Plaintiffs had already set up a claim in terms of money and it was for them to make out a case with regard to such relief but it could not be taken as a ground for the grant of temporary injunction‑‑‑Where the balance of convenience also did not lie in favour of the plaintiffs, no case for grant of temporary injunction was made out‑‑Application for grant of interim injunction was dismissed in circumstances.

Messrs World Wide Trading Co. v. Sanyo Electric Trading Co. Ltd. and another PLD 1986 Kar. 234; McDonald Layton & Co. Ltd. v. Pakistan Services Limited and I others 1983 CLC 2252 and Prof. Dr. Asghar Allawuddin v. Lahore Lyceum School, Multan 1999 CLC 66 distinguioshed.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 54 & 55‑‑‑Time of the essence of contract‑‑‑Failure to perform promise within time contemplated under agreement‑‑‑Effect‑‑‑Such contract was voidable within the meaning of S.55 of the Contract Act, 1872‑‑‑Where the plaintiffs failed to perform their promise within the time contemplated under the agreement, prima facie, the provisions of S.54 of the Contract Act, 1872 were to come into play.

Asim Mansoor Khan for Plaintiff.

Shahid Anwar Bajwa for Defendants.

Date of hearing: 19th January, 2000.

PLD 2002 KARACHI HIGH COURT SINDH 147 #

P L D 2002 Karachi 147

Before Anwar Zaheer Jamah, J

AL‑RAHIM TRADING CO. (PVT.) LTD. Through Chief Executive‑‑‑Plaintiff

versus

PAKISTAN through Ministry of Petroleum and Natural Resources, Islamabad and 2 others‑‑‑Defendants

Suit No. 1334 and Civil Miscellaneous Application No.7207 of 2001, decided on 26th November, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 42, 54 & 56(d)‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑‑Interim injunction, grant of‑‑‑Interference in public duties‑‑‑Plaintiff entered into agreement for storage and handling of fuel oil with one of the defendants who had obtained no objection certificate from the Authorities to the proposed import of furnace oil‑‑‑Plaintiff, on the basis of the agreement had made heavy expenditure for handling of furnace oil of the defendant‑‑-Authorities, subsequently withdrew their no objection extended to the defendant resultantly the defendant had terminated the agreement with the plaintiff ‑‑‑Plaintiff, in the present case, had assailed the act of the Authorities as well as of the defendant‑‑‑Validity‑‑‑By entering into agreement with the defendant and on account of subsequent withdrawal of permission/no objection by the Authorities and alleged illegal termination of agreement, if the plaintiff had suffered any damages/financial losses then in terms of the agreement the plaintiff could only agitate their claim against the defendant and the Authorities could not be forced to abide by the terms and conditions of such agreement which was no more alive‑‑‑Where the permission/no objection in favour of defendant for import of furnace oil had been withdrawn, grant of interim injunction would be barred under S.56(d) of the Specific Relief Act, 1877, as the interim order might disturb the smooth functioning and agreements of the Authorities regarding supply of fuel oil in the country‑‑‑Plaintiff having failed to make out a prima facie case for grant of interim relief, application was dismissed in circumstances.

PLD 1969 SC 407; 1986 SCMR 916; 1986 SCMR 1917; PLD 1987 Kar. 63; 2001 PTD 1829; 1998 SCMR 376; PLD 1998 Kar. 373; 1998 CLC 760; PLD 1973 Pesh. 95; 1998 MLD 234 and 1997 MLD 2983 ref.

Farogh Nasim for Plaintiff.

Zisuddin Nasir for Defendants Nos. 1 and 2.

Amjad Hussain for Defendant No.3.

PLD 2002 KARACHI HIGH COURT SINDH 152 #

P L D 2002 Karachi 152

Before Saiyed Saeed Ashhad, C.J., Sarmad Jalal Osmany and Wahid Bux Brohi, JJ

Mian MUHAMMAD NAWAZ SHARIF and others---Appellants

versus

THE STATE and others---Respondents

Special Criminal A.T. Appeals Nos.43 and 50 of 2000, Special Criminal Acquittal Appeal No.46 of 2000, decided on 30th October, 2000.

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

----Art. 16---Criminal Procedure Code (V of 1898), S.337---Accomplice, evidence of---When admissible and can be made the basis of conviction--Corroboration---Discrepency---Principles---Doctrine of double test--Applicability.

The evidence of accomplice is not admissible at all in case of offences punishable as Hadd and Qisas but for an offence punishable as Ta'zir his testimony is admissible and furnishes the basis of conviction provided it is corroborated in material particulars; and in exceptional circumstances the conviction can be founded on the evidence of an accomplice without corroboration if Court is satisfied with truthfulness of his evidence.

The doctrine of double test with respect to evidence of accomplice/approver will be subject to rule laid down in Federation of Pakistan v. Muhammad Shafi Muhammadi, Advocate (1994 SCMR 932).

The evidence of accomplice is ordinarily regarded with suspicion but the degree of suspicion varies according to the extent and nature of complicity, as in certain cases he may not be a 'willing participant' for the offence but a victim of it and might have succumbed to pressure for want of firmness to resist the same.

As regards the extent and level of corroboration, no hard and fast rule could be laid down in that behalf and the evidence is to be assessed keeping in view the facts and circumstances of each case.

The corroborative evidence standing by itself might not be incriminating at all but considered with the story of approver it should produce on the mind of the Court a profound conviction that the accused must have acted in the manner alleged by the approver.

The evidence of approver may not cover each and every detail and in case of any discrepancy, the minor discrepancies may not make the entire testimony of the approver unreliable.

Federation of Pakistan v. Shafi Muhammad 1994 SCMR 932; Muhammad Ayub Khuhro v. Pakistan PLD 1960 SC 237; Srinivas Mall Bairoliya v. Emperor PLD 1947 PC 141; State v. Zulfiqar Ali Bhutto PLD 1978 Lah. 523; Ghtjam Qadir v. State PLD 1959 SC (Pak.) 377;, Nur, Ali Ghazi v. State PLD 1962 Dacca 249;, Abdul Majeed v. State PLD 1973 SC 595; Abdul Qadir v. State PLD 1956 SC (Pak.) 407; Alam Khan v. Ghauns Muhammad 1969 SCMR 269; Abdul Khalique v. State PLD 1970 SC 166; Juma v. Crown PLD 1954 Lah. 783; Munawar Hussain v. State 1993 SCMR 785; Kamal Khan v. Emperor AIR 1935 Born. 230; Ghulam Qadir v. State PLD 1959 SC (Pak.) 377; Fazal Dad v. Crown PLD 1955 FC 152; Ishaque v. Crown PLD 1954 FC 335; Abdul Qadit v. State PLD 1956 SC (Pak.) 407; Abdul Khalique v. State PLD 1970 SC 166; Muhamamd ;Yaqoob v. State 1992 SCMR 1983; Muhammad Bashir v.State PLD 1971 SC 447; Zultiqar Ali Bhutto v. State PLD 1979 SC 53; Swaran Singh Ratan Singh v. State of Punjab AIR 1957 SC 637; Jan Muhammad v. State 1968 PCr.LJ 1625; Haroon Haji v. State of Maharashtra AIR 1968 SC 832 and Bhola Nath v. Emperor AIR 1939 All. 567 ref.

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

----Art. 16---Criminal Procedure Code (V of 1898), S.337---Accomplice, evidence of---Admissibility---Doctrine of double test---Applicability---Where the accomplice was a victim of circumstances; was not a willing participant; had no axe of his own to grind nor was he a direct beneficiary of the criminal act and he had explained the circumstances as to how his power of resistance was shattered because of the pressure of the happenings occurring spontaneously, he could not be termed as a wicked person nor his testimony could be discarded straightaway on the ground that he was an accomplice--Evidence of accomplice, in view of doctrine of double test, however, was to be scrutinized if his evidence was inherently worth reliance and he was also corroborated through independent evidence in material particulars---If on the whole for the purpose, of corroboration the evidence of other witnesses was reliable and enough it could be concluded that the testimony of approver had stood the double test and the facts stated by the accomplice had been established.

----Art. 129---Presumption as to existence of certain facts---Non production and withholding of related evidence by prosecution---Drawing of adverse inference by the Court ---Principels---Words "evidence" and "person" occurring in Art-.129, Qanun-e-Shahadat, 1984---Connotation---Where both prosecution and the accused had failed to produce the related evidence, this by itself would not call for an adverse inference against the prosecution---Where, however, purely trustworthy and transparent oral testimonies had come on record against whom there could be no allegation of giving false evidence under any sort of motivation, it would not appeal to reason to dram, an adverse inference against the case of prosecution owing to non-production of the related evidence---Such testimonies, as such, were not open to question and consequently it would follow that the prosecution succeeded lit proving the existence of fact.

A plain reading of Article 129, Qanun-e-Shahadat, 1984 shows that when---(i) a person could produce a particular evidence, (ii) but he did not produce it, and (iii) withheld the same, the Court may presume that the production of such evidence was unfavourable to that person. The word 'person' used herein does not confine the applicability of this provision to any of the parties in the case and the word 'evidence' includes airy kind of evidence documentary, oral etc. In the present case the question related to the production of telephone bills against which the payment was made. No doubt the bills might be available in the accounts section of the Department but on the other hand computerized record thereof was also maintained in the relevant section of the billing department. The prosecution did not produce these bills therefore it could be said that they could produce it but did not produce the same. On the other hand such documentary evidence related to public record, the accused could get copies thereof and produce the same in defence but he, too did not make an attempt in this behalf.

It is not in every case that adverse inference must be drawn against the prosecution in terms of illustration (g) to Article 129 of the Qanun-e-Shahadat Order (section 114 of Evidence Act) owing to non production of certain., evidence and that it will depend upon facts and circumstances of each case but an adverse inference can only be drawn if it is shown that material witnesses have been withheld owing to some oblique motive and for considerations not supported on the record. Although the issue related to the production of witnesses the rule is equally applicable in relation to production of documentary evidence. In the present case if the accused could find favour from the telephone bills which according to him were to damage the case of prosecution, then nothing prevented him from calling for production of such evidence.

Indeed, both the parties were responsible for neglecting to produce or call for production, as the case may be, of such documentary evidence and no unrestricted presumption could, therefore, be drawn.. No doubt the prosecution had chosen to rely on oral evidence but this should not by itself call for an adverse inference against the prosecution.

When purely trustworthy and transparent oral testimonies had come on record through independent witnesses against whom there could be no allegation of giving false evidence under any sort of motivation, it would not appeal to reason to draw an adverse inference against the case of prosecution owing to non-production of the related entries. The testimonies were, as such, not open to question and consequently it would follow that the prosecution succeeded in proving the existence of fact.

Zulfiqar Ali Bhutto's case PLD 1979 SC 53 ref.

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

----Arts. 121 & .122---Burden of proof---Plea of exception by the accused--Condition---Accused can take plea of exception even at appellate stage; at the most it would be required that in substance the plea should be germane to facts of the case and proximately relatable to the evidence placed on record by the prosecution or the defence as the case may be---If, however, any benefit derived from the plea was aimed at the upsetting the case of prosecution, then burden of proof would lie on the accused---Prosecution, however, was bound to prove its own case beyond reasonable doubt, regardless of the fact that the accused succeeds or not in substantiating and proving his plea at appellate stage.

As for the burden of proof, Article 121 of Qanun-e-Shahadat clearly spells out the condition that when an accused person claims general exceptions within the meaning of Pakistan Penal Code or in any law defining the offence, the burden of proving the existence of circumstances wholly lies upon him. On the same pattern Article 122, postulates that if such fact is specially within the knowledge of such person then burden of proving the same is again upon him. Entertaining/admitting of a plea at belated stage, say appellate stage, is remarkably distinct from acceptance of such plea. Provisions of Articles 121 and 122 of Qanun-e-Shahadat would not restrain the accused from taking a plea even at the appellate stage: at the most it would ht required that in substance it should be germane to facts of the case and proximately relatable to the evidence placed on record by the prosecution or the defence as the case may be.

But if any benefit derived therefrom is aimed at upsetting the case of prosecution, then burden of proof shall lie on the accused as under the settled norms of criminal jurisprudence the prosecution is bound to prove its own case beyond reasonable doubt, regardless of the fact that the accused succeeds or not in substantiating and proving his plea taken at appellate stage.

Motiram Chandiram v. Emperor AIR 1941 Sind 117; Noorul Haq v. The State 1992 SCMR 1451; Ch. Muhammad Yaqoob. v. The State 1992 SCMR 1983; Safdar Ali v. The Crown PLD 1953 FC 93; ILR 1985 AC 462; Subbago v. The State 1993 PCr.LJ 1934; The State v. Mukhtar PLD 1956 (W.P.) Lah. 704; Rehmat v. The State PLD 1977 SC 515 ref.

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

----Art. 16---Criminal Procedure Code (V of 1898), S.337---Accomplice. evidence of corroboration---Principle---Not - necessary that each piece of evidence of other witnesses shall independently establish a particular fact and only then evidence of such witness m4y be accepted as corroborative piece of evidence for the words of accomplice.

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

----S. 154---First Information Report---Lodging of F.I.R. with delay or promptness---Effect---Delay or promptness in lodging the F.I.R. shall not in all cases lead to an inference about truth or otherwise of the case set up in the F.I.R.---Where the facts were remarkably peculiar and by delaying the F.I.R. prosecution had not gained anything and had produced enormous evidence which was trustworthy and believable, the delay in lodging of the F.I.R. was immaterial in circumstances.

Delay or promptness in lodging of F.I.R. shall not in all cases lead to an inference about truth or otherwise of the case set up in the F. I. R.

The F.I.R. is not a substantive piece evidence and no conviction can be based on the contents of a F.I.R. alone; its significance, however, for the purpose of seeking corroboration or contradictions cannot be denied. In the present case admittedly the facts were remarkably peculiar because of allegations against Prime Minister of the country, and other personalities holding top slots while the victim of offence was the Chief of Army Staff and during the incident a number of high officials had taken part in diversion of the plane from its scheduled course and closing of the runway while on the other hand Army Generals had promptly moved in and intercepted the action being taken by Civil Aviation Authority officials. Although the story came into picture in national press immediately, yet a fact-finding probe was carried out and only then the F.I.R. was lodged. Even after such probe the names of all the accused could not be incorporated in the F.I.R. That aspect of the case, on the contrary, fortifies the argument that the prosecution did not gain anything from the delay in lodging the F.I.R. However, there was an explanation on the part of the prosecution in the F.I.R. itself which in the circumstances of the case could be treated as a reasonable explanation. Nevertheless, the settled principle is that the contents of F.I.R. could not be taken as thumb rule for genuineness or otherwise of the prosecution story and that the liability of an accused person shall be decided on the basis of the evidence) on record. The prosecution in the present case had produced enormous evidence which was trustworthy and believable as such the delay in lodging of the F.I.R. was immaterial.

Muhammad Gul v. The State 1970 SCMR 797; Riaz Ahmed v. The State PLD 1994 Leh. 485; Salar Khan v. Muhammad Ayub 1986 PCr.LJ 1482; Tahir Hussain v. The State 1992 PCr.LJ 478: Muhammad Gul's case 1970 SCMR 797; Riaz Ahmed's case PLD 1994 Lah. 485; Salar Khan's case 1986 PCr.LJ 1482; 1978 SCMR 135; PLD 1978 SC 1 and 1979 SCMR 230 ref.

(g) Appeal (criminal)---

---- Plea taken by the accused at the appellate stage could be considered in the light of evidence on record.

(h) Criminal trial--

----Evidence---Appraisal of evidence---Minor contradictions, omissions or improvements---Adverse inference, when could be drawn---Standard norms of appraisal of evidence would not call for rejecting a wholly trustworthy testimony on the score of some minor contradictions, omissions or improvements---Adverse inference could be drawn only when the improvements were made to alter the case at a later stage in order to bring same in line with the case of prosecution---Where the feeble effect of changed version with which the witnesses were confronted did not detract from the testimonies which on the whole fit in the circumstances of the case and were credible, reliance could be placed on such testimonies.

The standard norms of appraisal of evidence would not call for rejecting a wholly trustworthy testimony on the score of some minor contradictions, omissions or improvements. In principle the rule laid down in Saeed Muhammad Shah v. State (1993 SCMR 550) and Naseer Ahmed v. State (1994 SCMR 995) would call for an adverse inference to be drawn on such account only when the improvements are made to strengthen the case and additions are made to alter the case at a late stage in order to bring it inline with the case of prosecution. It is not so in the present case. The feeble effect of changed versions with which the witnesses were confronted does net detract from the testimonies which on the whole fit in the circumstances of the case and are credible. The trial Court had thus rightly placed reliance on these testimonies.

Saeed Muhammad Shah v. State 1993 SCMR 55() and Naseer Ahmad v. State 1994 SCMR 995 ref.

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

----S. 402-B----Hijacking---What constitutes---Essential ingredients to be established for making out the offence of hijacking---If the ingredients of the attendance of hijaking are made out the offence would be completed even without physical presence of the hijacker on board the aircraft.

Indeed, the case-law touching the offence of hijacking has not developed much for the obvious reason that, it has been introduced in the Pakistan Penal Code recently. In fact, incidence of this offence throughout the world reached alarming proportions and it was globally felt that besides applying other methods and devices to check the same, severe punishment be provided for this offence in the penal laws. Consequently, such amendments were introduced world over and in keeping with the same the Pakistan Penal Code was also amended by way of Ordinance XV( of 1981 inserting sections 402-A, 402-B and 402-C therein.

What constitutes offence of hijacking call be gathered from section 402-A, P.P.C. which, on a plain reading, envisage 's the following essential ingredients which if established would make out the offence---

(i) that the act itself should be unlawful, (ii) there should be use or show of force, or

(iii) there should be use of threats of any kind, and

(iv) the above acts shall result in seizing or exercising control ,of an ,aircraft.

The offence of hijacking is completed if the above elements ate proved even without the physical presence of offender. The use of s. how of force or by threat of any kind including expression of words orally or in written form or any other visible sign showing the intention of the offender to seize or control an aircraft is enough to complete the offence of hijacking. The above-referred acts susceptible of being looked or to be observed as such would definitely be unlawful acts and would constitute the offence of hijacking. In the present time, the offences of hijacking, bomb blasting and such other offences of terrorism are committed through remote control and indirect methods. The artificial articles namely, the electric appliance, artificial machines and weapons in the form of plastic toys, guns, pens and watches, if are used as weapon with threats of commission of offence, the offence is completed and the offender cannot take the plea that the artificial weapon being not convertible to be used as actual weapon, he has committed no offence. The commission of offence not only depends on the result to be achieved, but if the element of mens rea to commit an offence is traceable and intention through visible sign is exposed even without any overt act, the offeence can be said to have been committed. Thus, that combination of the intention with the action exposing such intention would bring the act under the definition of an offence.

Legislature intentionally widened the scope of the defining clause of the offence of hijacking. The offence of hijacking is completed even if the physical presence of the offender is not proved. The consequential conclusion, in essence, would be that, if the ingredients of the offence of hijacking are made out the offence would be completed even without physical presence of the hijacker on board the aircraft.

Muhammad Ibrahim Halimi v. State 1999 YLR 533'; Abdul Mannan v. State 1991 MLD 2462 and Shahsawar v. State 2000 SCMR 1331 applied.

(j) Interpretation of statutes--

---- Pressing into service the provisions of laws of other countries for placing a construction on law ' of the land---Scope---Nothing can be reaid in a provision of law which has been expressly omitted, and provisions made in the statute of other countries cannot be pressed into service for placing a construction on a provision of law of our country Whereby the scope, extent and operational field of a provision would be curtailed or enhanced/enlarged.

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

---S. 402-A JCivil Aviation Ordinance (XXXII of 1960), S.6(1)---Hijacking---Diversion of flight of National Airline ordered by the Prime Minister/ Defence Minister---Legality---"An unlawful act" generally includes an "illegal act" but in contradistinction, it, inter alia, implies an act not authorised or sanctioned by law but forbidden by law, while an illegal act is one which is done or performed not in accordance with the forms and usages of law or in particular manner directed by law in technical sense--- "Unlawful act" in some sense includes an illegal act and there is no substantial or material error in calling an unlawful act as an illegal act or implementation of an illegal order because in its ultimate object it is meant to assert that the accused had committed the act in an unlawful manner---An action which is not in accordance with law, therefore, shall be deemed to be an act committed unlawfully---Principles.

The term "unlawful" is in many respects distinct from the term "illegal", but not always.

The distinction demonstrates precisely that "an unlawful act" generally includes an illegal act but in contradistinction, it, inter alia, implies. an act not authorized or sanctioned by law but forbidden by law, while an illegal act is one which is done or performed not in accordance with the forms and usages of law or in a particular manner directed by law in technical sense. While interpreting a penal law it is, therefore, imperative that under the long accepted rules it is to be construed strictly with a view to promoting the object of statute and to give effect to its real intent so as to effectuate its intention. But since it appears that word "unlawful" in some sense includes an illegal act it can safely be concluded that there is no substantial or material error in calling an unlawful act as an illegal act or implementation of an illegal order because in its ultimate object it is meant to assert , that the accused had committed the act in an unlawful manner.

An action which is not in accordance with law shall be deemed to an act committed unlawfully.

Wharton's Law Lexicon, th Edn.;Concise Oxford Dictionary, 9th Edn.; French Legal or Latin Legalis Lex Legis Law Black's Law Dictionary, 6th End.; Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 and Sharaf Faridi v. Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404 ref.

(l) Words and phrases---

----"Unlawful" and "illegal "---Distinction.

(m) Interpretation of statutes---

---- Penal law---Principle of interpretation---Penal law has to be construed strictly with a view to promoting the object of statute and to give effect to its real intent so as to effectuate its intention.

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

----S.402-A---Qanun-e-Shahadat (10 of 1984), Art.121---Civil Aviation% Ordinance (XXXII of 1960), S. 6---Hijacking---Ingredients---Diversion of flight of National Airline ordered by the Prime Minister/Defence Minister--Legality---Powers of Federal Government to make order in times of war or emergency under S.6, Civil Aviation Ordinance, 1960---Scope---Contention of the accused (Prime Minister) was that the diversion of the flight was not an unlawful act because it was within his competence within the meaning of S.6(1), Civil Aviation Ordinance, 1960; that there was grave danger of public safety as the Army was going to repel the action taken by the Prime Minister who had few moments earlier issued the notification of retirement of Chief of the Army Staff and appointment of another General in his place; that since he (the accused) was informed that certain sections of the Army were going to demonstrate their reaction and there was eminent danger of brutal combat between two factions of army, it was thought necessary that the plane carrying the COAS (who was retired) be diverted to some destination out of Pakistan so that in the meantime the accused who was the Prime Minister of the country and encountering a critical situation owing to struggle for power could consolidate his position and avert the imperilled infight between the Army; that once a trigger was pressed on either side and a fire was made it would result in endless firing between different groups of army that could result in intense bloodshed and even put the integrity of the country at stakes and that 'it was all in the interest of serving a legitimate Government and to maintain good order by a Constitutionally elected Government headed by the accused who was wielding a heavy mandate founded on great majority in the Parliament---Accused contended further as a second line argument that there was neither use or show of force nor threat of any kind and even the control of aircraft was not seized---Validity---Country. admittedly was not running through a state of war, therefore factor of war was not attracted---Powers conferred on the Federal Government undeF S.6(l) of the Civil Aviation Ordinance, 1960 could only be availed if the circumstances did manifestly exist, establishing undoubtedly, that either there was severe State of emergency or the public/tranquillity was seriously imperilled and, therefore, in the interest of public safety and tranquillity the powers were inevitably to be exercised---Merely an imaginative assumption or hypothetical consideration shall not always make it open to the Federal Government to exercise said drastic powers on the pretext of emergency in the name of saving public safety or tranquility---No action was taken which could be a threat to the public safety or tranquility on the part of few soldiers who had immediately withdrawn and surrendered and were effectively disarmed without making a single tire---Circumstances, on the whole did not exist warranting an action to be taken by the accused in exercise of the emergent and extraordinary powers within the compass of S.6(1) of the Civil Aviation Ordinance, 1960 or otherwise---Primarily burden lay on the accused to prove the facts that could substantiate his defence plea---Specially, in case of a plea related to existance of circumstances bringing the case within the fold of any of the general exceptions in the P.P.C. or in any law defining such circumstances as contemplated under Art. 121, Qanun-e-Shahadat, 1984, burden was upon the accused which he totally failed to discharge--Accused, at the most had enumerated the circumstances in his statement under S.342, Cr.P.C. intending to show that the Chief of Army Staff was posed to dislodge his Government because of dissention over a defence issue and his meeting with another General of the Army---Contentions of the accused, therefore, stood unsubstantiated and it could not be said that the diversion of the plane was lawfully ordered by the accused---Case of the accused was a case of an attempt to hijack the plane which attempt was foiled by the timely intervention of the Army as a result of which the plane landed safely at the scheduled Airport and contention that the ingredients of the offence of hijacking were not made out was repelled---Principles.

In the present case the main contention raised on behalf of the accused was that the diversion of the flight so ordered by the accused was not an unlawful act because it was within his competence within the meanings of subsection (1) of section 6 of the Civil Aviation Ordinance, 1960.

Out of the four different acts that could be ordered in exercise of powers under section 6, Civil Aviation Ordinance, 1960, clause (b) appears to be relevant for the purpose of present case. According to clause (b) of subsection (1) of section 6 of the said Ordinance the Federal Government was competent to prohibit either absolutely or subject to such condition as it may deem fit to specify in the order or regulate in such a manner as may be specified in the order the flight of all or any aircraft or class of aircraft over the whole or any part of Pakistan. On a plain reading it would appear that the above powers were available to Federal Government in three circumstances that is to say: (1) in the event of war, (2) in case of other emergency, or (3) in the interest of public safety, or tranquillity. Admittedly, in the present case, the country was not running through a state of war therefore, this factor was not attracted. It was however; contended by the accused that in fact, there was grave danger of public safety as the Army was going to repel the action taken by the accused (Prime Minister of Pakistan) who had few moments earlier issued the notification of retirement of COAS and appointment of another General in his place; that since he was informed that certain sections of the Army were going to demonstrate their reaction and there was eminent danger, of brutal combat between two factions of Army, it was thought necessary that the plane carrying COAS be diverted to some destination out of Pakistan so that in the meantime the accused who was the Prime Minister of the country and encountering a critical situation owing to struggle of power could consolidate his position and avert the imperilled insight between the Army; that once a trigger was pressed on either side and a fire was made it would result iii endless firing between different groups of Army that could result in intense bloodshed and even put the integrity of the country at stake and that it was all in the interest of saving a legitimate Government and to maintain good order by a Constitutionally , elected Government headed by the accused who was wielding a heavy mandate founded on great majority in the Parliament.

The powers conferred on the Federal Government its subsection (1) of section 6-of the Civil Aviation Ordinance, 1960 could only be availed if the circumstances did manifestly exist, establishing undoubtedly, that either there was severe state of emergency or the public safety/tranquillity was seriously imperilled and, therefore, in the interest of public safety and tranquility the powers were inevitably to be exercised. Merely an imaginative assumption or hypothetical consideration shall not always make it open to the Federal Government to exercise these drastic powers on the pretext of emergency in the name of saving public safety or tranquillity. In the present case with regard to these factors it was pointed out that few army soldiers were present at Pakistan Television Station, Islamabad and some were found outside Prime Minister House which evidenced the existence of emergency. Barring appearance of few soldiers at Pakistan Television Station of Islamabad, there was no evidence of taking over of any other installation. Even those few soldiers were smoothly disarmed. It could, therefore, hardly be said that there was an action threatening the public safety or tranquillity, on the part of those few soldiers who had immediately withdrawn and surrendered and were effectively disarmed without making a single fire. Likewise few army persons outside Prime Minister House were not active. at that moment when the Prime Minister had ordered diversion of the plane. At a very late stage the Army entered the Prime Minister House and by that time the order had already been issued which was being obeyed and implemented in letter and spirit. The action as directed by the accused had already taken in .its onset and it was in consequence of those directions that the flight was first disallowed landing at Karachi and practically diverted towards Nawabshah and on the way it was called back with a view to getting it refuelled at Karachi and again pushed away out of Pakistan.

Primarily, burden lay on the accused to prove the facts that could substantiate his defence plea. Specially, in case of a plea related to existence of circumstances bringing the case within the fold of any of the general exceptions in the Pakistan Penal Code or in any law defining the offence, the burden of proving existence of such circumstances, as contemplated under Article 121 of the Qanun-e-Shahadat, is upon the accused but it would be noted that in this case absolutely no defence evidence has been led by the accused. At the most the accused has enumerated the circumstances in his statement under section 342, Cr.P.C. intending to show that the COAS was posed to dislodge his Government because of dissention over Kargil issue and the meeting of a General from Quetta with the accused.

In principle, an accused person is not precluded from taking benefit of the versions .. given by the prosecution witnesses either in their examination-in-chief or elicited from them by way of cross-examination, but then the entire material assembled together shall precisely make out the defence plea in favour of accused and nothing can be presumed at random. Instantly, in this context, the accused cited two instances of presence of soldiers, one at Pakistan Television Station, Islamabad and the other at the Prime Minister House, but no adverse conclusion could be drawn which could dismantle the entire case of the prosecution. The defence plea was strenuously advanced on the concept of struggle of power between the two that' is to sav COAS and the accused Prime Minister but whether such struggle of power really existed was to be proved by the accused by leading substantive evidence which was utterly lacking. If some of the facts. materially significant in this behalf were in the knowledge of the accused, then too, :within the contemplation of Article 122 of Qanun-e-Shahadat, it was the accused himself to shoulder the burden of proof in respect of such facts. Therefore, in the circumstances the defence plea taken by the accused in the statement of accused under section 342, Cr.P.C. could not withstand. On the whole, circumstances did not exist warranting an action to be taken by the accused in exercise of the emergent and extraordinary powers within the compass of subsection (1) of section 6 of the Civil Aviation Ordinance, 1960 or otherwise, the plea, therefore, stands unsubstantiated. Consequently, it cannot be said that the diversion of plane was lawfully ordered.

Reverting to the essential ingredients of the offence of hijacking as defined in section 402-A, P.P.C. accused contended that there was neither use or Tow of force nor threat of any kind and even the control of aircraft was not seized. This contention was raised as the second line of argument in case of failure of the plea that the diversion was ordered lawfully. This argument was also without force. The entire Civil Aviation Staff at the Airport was meticulously put into action and by exercising several operational activities each and every concerned person performed his role in disallowing landing of the plane. The Captain was crying hoarse and beseeching that the aircraft was running short of fuel and 198 souls on board were encountering the risk of their lives yet they were not allowed to land. In the airfield not only the Control Tower refused such permission verbally, but even fire tenders were placed on the runway and lights were switched off eliminating every possibility of landing to be made by the aircraft. The Control Tower, in clear terms, informed the Captain that Karachi Airport was closed for this flight. The Captain of the flight was also informed at the outset that even the alternate airport was closed and he had to proceed at his own risk. This was sufficient evidence of show. of force coupled with use of force and it was sheer chance that the Army interference proved effective and the aircraft was ultimately allowed to-land. If the control was not seized physically then evidently it would go without saying that such control was exercised by way of closing the scheduled places of landing and compelling it to proceed to a destination out of Pakistan. The remaining ingredients of the offence of hijacking defined under section 402-A, P.P.C. were, therefore, made out as soon as the plane was diverted and an attempt was made to push it out of Pakistan.

This was case of an attempt to hijack the plane and this attempt was foiled by timely intervention of the Army as a result of which it landed safely at the scheduled Airport. The contention that the remaining ingredients of the offence of hijacking were not made out was repelled.

An objective review of these provisions would indicate that predominantly the expression "good faith" is a common factor in all these provisions and ordinarily attaches to acts done in good faith. These exceptions would therefore help the appellant only if it is made out that the acts were done by him in good faith. For the purpose of good faith section 52, P.P.C. may be taken into consideration.

Whether the accused exercised due care and attention while ordering diversion of the plane was a fact to be proved by him for which do evidence was led. Even otherwise, an utmost emergent and inevitable necessity of ordering such diversion was not at all proved and it could never be made out that such an action was taken lawfully and in good faith. On the contrary the first diversion of the plane was manifestly a wreckless act plunging the plane and its inmates in a state of unforeseen hazard. These exceptions are on the whole not available to the accused and this 'line of argument also fails.

Elements of offence of hijacking defined under section 402-A. P.P.C. are made out and the only question to be distinctly clarified here is whether the criminal act committed by the accused be considered as an attempt to commit hijacking or hijacking absolute. Once the diversion of plane is effected the offence of hijacking takes place. In the present case one may aptly consider the peculiar features of the case that the hijackers were neither in the plane nor had physically seized control of the plane but such diversion was a remotely controlled diversion while the plane was in air and the hijackers were on the ground. This diversion was not completed finally and was being further perpetrated by way of a modified course of action in allowing the plane to land at the Scheduled Airport, refuel it and then compel it to proceed abroad but in the meantime the last phase of the action was intercepted by the Army, and the plan totally collapsed. Thus, it remained only an ° act of attempt to commit the offence of hijacking. Therefore, the accused committed the offence of attempt to hijack the flight.

PLD 2000 SC 869 and Shahswaz's case 2000 SCMR 13311 ref

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

----Art. 121---Plea-relating to existence of circumstances bringing the case within the fold Wqte general exceptions in the P.P.C. or in any other law defining the offence---Burden of proof---Such burden is on the accused as contemplated by Art. 121 of Qanun-e-Shahadat, 1984.

(p) Criminal trial---

---- Defence plea---Presumption---Scope---Accused is not precluded from taking benefit of the versions given by the prosecution witnesses either in their examination-in-chief or elicited from them by way of crossexamination, but their entire material assembled together shall precisely make out the defence plea in favour of the accused and nothing can be presumed at random.

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

----Art. 122---If some of the facts, materially significant for the issue in question were in the knowledge of the accused, it was accused himself to shoulder the burden of proof within the contemplation of Art.122 of the Qanun-e-Shahadat, 1984.

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

----Ss. 76, 79, 81 & 52---General exceptions---Good faith---Objective review of.Ss.76,79-&-81, P.P.C. would indicate that predominently the expression "good faith" is a common factor in all these sections and cardinalship attaches to acts done in good faith---Exceptions, would therefore, help the accused only if it is made out that the acts were done by him in good faith.

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

---Ss. 402-A & 402-B---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7(ii) & 38---Hijacking---Act of terrorism---Word "likely" used in S.6(2) of the Anti-Terrorism Act, 1997---Significane and scope ---Sentence---Procedure--Contention of the prosecution was that offence of hijacking punishable under S.402-B though having not been included in the Schedule to Anti-Terrorism Act, 1997 at the time of its promulgation but was inserted at a later stage by way of an amendment after the commission of the offence in the present case constituted a "terrorist act" and was triable by Anti-Terrorism Act, 1997--Validity---Act of attempt of hijacking had been proved beyond doubt by the prosecution and was punishable under S 402-B, P. P.C. --Hijacking in the manner committed in the present case was by itself likely to create a sense of fear and insecurity not only in the inmates of the plane but also in the people generally---Word "likely" as used in S.6(b) of the Anti-Terrorism Act, 1997 in essence brought the act committed by the accused within the fold of definition of "terrorist act"---Offence of committing terrorist act having been made out, separate sentence of such offence was not called for in view of S.7(ii) of the Anti-Terrorism Act, 1997---Principles.

On behalf of the accused in the present case it was argued that in the incident no act of terrorism, say a "terrorist act" within the meaning of section 2(h) and section 6 of the Anti-Terrorism Act, 1997 was committed by the accused, therefore, neither the Anti-Terrorism Court had jurisdiction to try the case nor there could be justification for convicting the accused under section 7(ii) of the Act and sentencing him thereunder. While the prosecution submitted that the accused had committed scheduled offence of hijacking which was likely to strike terror and create a sense of fear and insecurity in people including inmates of the plane hijacked, therefore; terrorist act was committed.

Section 6(b), Anti-Terrorism Act, 1997, inter alia, depends upon interpretation of scheduled offence also. The offence of hijacking punishable under section 402-B, P.P.C. was not included in the Schedule to the Act at the time of its promulgation but it was inserted at a later stage by way of an amendment introduced on 2-12-1999 that is to say after commission of the offence in the present case. However,, it was pointed out on behalf of the prosecution that by virtue of section 38 of the Anti-Terrorism Act the offence of hijacking would constitute a terrorist act and, therefore, was to be tried under the Act.

On a plain reading of section 38, Anti-Terrorism Act, 1997 it is quite clear that if an offence committed before the commencement of the Anti-Terrorism Act is of such nature that if committed after the date on which the said Act came into force, would constitute a "terrorist act", the Anti-Terrorism Court shall have jurisdiction to try the offence under the Anti-Terrorism Act.

As regards the act of terrorism, it would appear from the facts of the case that the act of hijacking, in the manner committed in this case, was by itself likely to create a sense of fear and insecurity not only in the inmates of the plane but also in the people generally. The word "likely" used in clause (b) of section 6 of Anti-Terrorism Act. in essence brings the act committed in this case within the fold of the definition of terrorist act.

From the definition and also generally in literal sense the word "likely" cannot be confined to an act which could have occurred only on its on-set that is to say at the time such act is said to be likely committed but it refers to a probable act that might happen or to be true simultaneously or consecutively with close proximity. Obviously, hijacking of the plane is always accompanied by sense of fear and insecurity but in certain cases it can be said that simultaneously it may strike terror also. In the present case the Chief of Army Staff was travelling in the plane along with his staff and it goes without saying that hijacking of such plane which in other words includes "abduction in air" of its inmates was under all probabilities to create a sense of terror generally. Ordinarily, if a Deputy Commissioner of a District or Commissioner of a Division is abducted by the criminals it would undoubtedly, the moment it is known to the public, create a state of horror and immense fear coupled with insecurity in general public. The abduction in the air of Chief of Army Staff would have certainly created a more horrible situation; this act on that analogy also would fall within the scope of terrorist act. Accused however, took advantage of the version given in the evidence that curtain was drawn when the Chief of Army Staff was in the cockpit and had a discourse with Captain. According to the accused, it was not known to other inmates of the plane if the plane had been hijacked. In the first instance, admittedly the situation was likely to strike terror that is why the curtain was drawn and- then it can also be said that a sense of insecurity had been created within the cockpit. Secondly, the meaning of term "likely" stretches the application of the act perpetrated to the time as soon as it is known to people or a section of people during or immediately after commission of the offence.

In the present case the accused cannot be said to have planned and committed this offence secretly nor was it likely to be unknown to the people as soon as the offence was completed. The curtain was drawn when the offence of abduction in air or say hijacking was still in continuation. Its horrible results were likely to strike the general public also as soon as it was known to them and this particular incident was such that it would have spread like wild fire in jungle no sooner than the last step of the offence was completed. On the whole there can be no doubt about the conclusion drawn that the act of "hijacking" or say "abduction in air" of Chief of Army Staff in the present case was likely to create terror coupled with fear and insecurity in people and as such it was a terrorist act, had it been committed after commencement of the Anti-Terrorism Act (inclusive of the amendment in the Schedule).

Offence of committing terrorist act is also made out but as regards punishment for this offence section 7(ii) of the Act does not call for a separate sentence.

The terrorist act in the present case fell within contemplation of section 6(b) of the Anti-Terrorism Act as such it was liable to be punished as prescribed under the relevant law that is to say with the punishment prescribed for the offence punishable under section 402-B, P.P.C. Indeed in view of this legal position separate sentence, awarded by the trial Court for the offence of "terrorist act" could not approved.

Akhtar Awan v. State PLD 2000 Kar. 89 distinguished.

Black's Law Dictionary, VIth Edn.; Shahswar's case 2000 SCMR 1331; Jetharam v. Weram 1986 SCMR 1056; Nick Kajtazi v. State PLD 1977 Kar. 1049 and Mannan's case 1991 MLD 2462 ref.

(t) Criminal trial---

---- Admission by counsel---Effect---Plea taken by the counsel on behalf of the accused/convict was neither an admission of fact nor confession of his guilt---Admission made by a counsel would not bind the accused and if the plea is rejected the Court shall forget about the same while determining the innocence or otherwise of the accused on the basis of evidence.

(u) Appeal (criminal)---

----Jurisdiction---Appeal being continuation of the trial, all points including the point of jurisdiction can be re-opened.

Nawaz Sharif v. State 2000 MLD 946 ref.

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

----S. 402-B---Anti-Terrorism Act (XXVII of 1997, S.7(ii)---General Clauses Act (X of 1897), S.26---Hijacking---Act of terrorism---Contention of the accused was that the trial on two charges; one under S.402-B, P.P.C. and the other under S.7(ii), Anti-Terrorism Act, 1997 was not warranted in law--Validity---No bar existed to a trial or a conviction for the same act which was an offence under different enactments but there was a bar to punishment being awarded twice for the same offence---Principles.

The contention of accused in the present case was that the trial on two charges; one under section 402-B, P.P.C.; and the other under section 7(ii) of Act was not warranted in law.

Section 26 of the General Clauses Act provides a bar to double punishment for the same offence, although a person is liable to be prosecuted and punished for an act of omission constituting an offence acid falling under two or more enactments. In other words there is no bar to a trial or a conviction for the same act which is an offence under different enactments, but there is a bar to a punishment being awarded twice for the same offence. In such a case it would be quite in order to record the convictions separately and award concurrent sentences if they are of imprisonment, but in no case can an accused person be made to suffer any extra punishment by way .of duplication for the same offence

The contention that accused could not be tried for the offence on two different charges, therefore, could not be accepted as each enactment had defined the offence in its own terms and the prosecution on each charge was not barred.

Niaz Ali v. State PLD 1961 (W.P.) Lah. 269 ref.

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

----Ss. 402-A & 402-B---Hijacking---Sentence---Attempt of hijacking was foiled while the offence had not yet been completed in the manner same was desired by the accused---Sentence of life imprisonment was sufficient to meet the ends of justice on this score---Fact that diversion of the plane was ordered at the spur of moment was no ground for awarding lesser sentence.

Jethazarn v. Weram 1986 SCMR 1056 ref.

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

----Ss. 402-A, 402-B & 402-C---Anti-Terrorism Act (XXVII of 1997), Ss.7(ii), 6(b) & 38---Constitution of Pakistan (1973), Art.12---Hijacking---Act of terrorism---Sentence --Quantum---Punishment of a person for an act or omission that was not punishable by law at the time of act or omission---Procedure---Sections 402-A, 402-B & 402-C, P.P.C. were added to the Schedule to Anti-Terrorism Act, 1997 on 2-12-1999 as such on 12-10-1999 when the incident, in the present case, took place said sections did not exist [n the Schedule to the Act, consequently, within the meaning of S.6(b), Anti-terrorism act, 1997 offences under Ss.402-A, 402-B & 402-C, P.P.C. were not scheduled offences on the day on which the incident took place but they became triable by virtue of S38, Anti-Terrorism Act, 1997--Effect---Provisions of S.38, Anti-Terrorism Act, 1997 provide in express terms that a person so tried shall be liable to punishment as authorised by law at the time the offence was committed---Punishment of the accused, in circumstances, would only be for the offence of hijacking as provided on the day on which the offence took place---Sentence to the accused therefore, could be awarded only for hijacking under S.402-B, P.P.C. and punishment for the offence of hijacking as provided under S.7(ii), Anti-Terrorism Act, 1997 could not be awarded.

With regard to sentence awarded for the offence of terrorist act under section 7(ii) of the Act view is based on the Constitutional provision of Article 12 which provides that no law shall authorize the punishment of a person for an act or omission that was not punishable by law at the time of act or omission. Sections 402-A, 402-B and 402-C of P.P.C. were added to Schedule of the A.T. Act, 1997 on 2-12-1999 as such on 12-10-1999 when the present incident took place these sections did not exist in the Schedule of Anti-Terrorism Act. Consequently, within the meaning of clause (b) of section 6 of the Act these offences were not scheduled offences on the day on which the incident in the present case took place but they became triable by virtue of section 38 of the Act, which provides in express terms that a person so tried shall be liable to punishment as authorized by law at the time the offence was committed. In this view of the matter, the punishment would only be for the offence of hijacking as provided on the day on which the offence took place. In a way the sentence can be awarded only for hijacking. Punishment for the offence of hijacking awarded by trial Court under section 7(ii) of the A.T. Act, therefore, was not approved and, as such, set aside.

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

----S. 402-B---Hijacking---Sentence of forfeiture of entire property of the offender---Validity---Word "property" alone has been used in S.402-B, P.P.C. which lays down the punishment for hijacking---Word 'property' in the said section is not preceded by the word "entire" nor it otherwise enjoins any express term that whole property of the offender be forfeited; intention of the law, therefore, was not to forfeit the entire property and the forfeiture, as such, shall not be stretched to the total property of the offender---High Court, modified the sentence of forfeiture of property and directed that the property of the offender be forfeited to the extent of Rs.50 crores only.

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

----S. 544-A---Penal Code (XLV of 1860), S.402-B---Hijacking---Order of payment of compensation to all the passengers. of the flight under S.544-A, Cr.P.C.---Validity---Term "anguish" used in 5.544-A, Cr.P.C. essentially refers, in literal sense, to extreme pain, distress of mind, severe misery or mental suffering but no evidence had been placed on record through the passengers on the point---Essential requirements of S.544-A, Cr.P.C. being lacking in -the case, such compensation to the passengers of the aircraft was t not justifiable---Principles.

The provision of section 544-A, Cr.P.C. shows that when hurt, injury or mental anguish or psychological damage to any person is caused the compensation shall be granted. However, the present case is not one where any death had occurred. In the present case even no hurt or injury was caused. There is also no evidence of psychological damage to the passengers. As far the mental anguish is concerned none of the passengers was examined. Out of the passengers only there is the deposition of Secretary to Chief of Army Staff but he was also silent on this point. The term "anguish" used in section 544-A, Cr.P.C. essentially refers, in literal sense, to extreme pain, distress of mind, severe misery or mental suffering but no evidence has been placed on record through the passengers on this point. The essential requirements of the section are, therefore, lacking as such compensation in favour of the passengers of the aircraft was not Justifiable.

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

----S. 417---Anti-Terrorism Act (XXVII of 1997), Ss.25(4) & 32---Penal Code (XLV of 1860), S.402-B---Appeal against acquittal---Principles--Golden rule of caution that imbues every statute dealing with adjudication on point of fact, to be given superseding effect and before reaching the conclusion on facts the High Court should and will always give weight and consideration to the matters enumerated---By and large the same principles are applicable to adjudication of a matter by a High Court in exercise of the powers under S.417, Cr.P.C. or S.25(4) read with S.32 of the Anti-Terrorism Act, 1997.

True that no limitation should be placed upon the power of High Court in deciding an acquittal appeal unless it be found expressly stated in the Code but simultaneously, the golden rule of caution that imbues every statute dealing with adjudication on point of fact, was to be given superseding effect, and before reaching its conclusion on facts the High Court should and will always give proper weight and consideration to such matters as---

(1)the views of the trial Judge as to the credibility of the witnesses;

(2)the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial;

(3) the right of the accused to the benefit of any doubt; and

(4) the slowness of an Appellate Court-in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.

The High Court will, inter alia, pay due regard to the opinion formed by the acquitting Judge about the witnesses who gave evidence before him and the corresponding disadvantage from which the High Court itself suffers in not having them before it.

The State has under section 417 of the Code of Criminal Procedure the right to appeal from an order of acquittal both on facts and law. It is, therefore, not permissible to read into section 417 the words of limitation employed by the High Court. A practice has, however, grown that a Court of appeal will not interfere with an order of acquittal if the evidence is open to. the view formed by the trial Court. In other words the order of acquittal will not be set aside on grounds of appreciation of evidence alone. This view, however, is not correct. If the reasons given by the trial Judge or of speculative and artificial nature or the findings recorded by him are based on no evidence or misinterpretation of evidence or the conclusions drawn by him about the guilt or innocence of the accused person are perverse or foolish resulting in miscarriage of justice the Court of appeal will in such a case re-examine the evidence and draw its own conclusions from it.

Guiding 'principles are in the following terms:--

It is not necessary to state and comment upon the facts and circumstances of each of the afore-noted cases nor, it is necessary to make an attempt to deduce any one single rule from these judgments which would help to resolve the controversy involved in this case, without proper analysis of the material on record.

However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualised from the cited and other caselaw on the question of setting asiae az acquittal by this Court. They are as follows:

(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 re-appraisement 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 carries 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 loose 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 assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.

(4) The Court would not interfere with acquittal merely because on reappraisal 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 justice and for no other purpose. The important, test visualised 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.

In exceptional circumstances showing overwhelming proof against any of the acquitted accused, disclosing glaring misreading and, indicating grave miscarriage of justice or showing perfunctory, wholly artificial or shocking conclusions which no reasonable person would perceive; the judgment can legitimately be interfered with.

By and large the same principles are applicable to adjudication of a matter by High Court in exercise of the powers under section 417, Cr.P.C. or section 25(4) read with section 32 of the Anti-Terrorism Act, 1997 in dealing with an acquittal appeal.

Zulfqar Ali Bhutto v. State PLD 1979 SC 53; State v. Bashir Ahmed PLD 1963 Kar. 242; Ghulam Muhammad v. Muhammad Sharif PLD 1969 SC 398; Kehar' Singh v. State 1989 PSC 533; Ch. Muhammad Yaqoob c. State 1992 SCMR 1983; State v. Zulfiqar Ali Bhutto PLD 1978 Lah. 523; Tribhuvan Nath v. State AIR 1973 SC 450; Asghar Hayat v. State 1985 PCr.LJ 2638; Chutto v. State PLD 1958 (W.P.) Kar. 18; Khurshid Ahmed ~. Kabool Ahmed PLD 1964 (W.P.) Kar. 356; Balmokand v. Emperor AIR 1915 Lah. 16; Sikandar v. State PLD 1963 SC 17, Muhammad Yasin v. State 1973 PCr.LJ 448; Empe;ior v. Manu Chik AIR 1938 Pat. 290; B.D. Cayford v. Masood Ahmed PLD 1964 Kar. 69; State v. Syed Mustafa Abbas 1986 PCr.LJ 1283; Yar Muhammad v. State 1992 SCMR 96; Niaz v. State PLD 1960 SC (Pak.) 387: Pramatha Nath Talukdar v. Saroj Ranjan AIR 1962 SC 876: Keltar Singh v. State AIR 1988 SC 1883; Muhammad Hussain v. State PLD 1995 Lah. 229; Abdul Khaliq v. State 1996 SCMR 1553; Muhammad Khan v. Maula B.akhsh 1998 SCMR 570; Muhammad Shafique Akhtar Shah 1997 SCMR 1964; Sheo Swarup v. King, Emperor AIR 1934 PC 227: Anwar v. Crown PLD 1955 FC 185; Ghulam Muhammad's case PL.D 1969 SC 398; Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11: State Muhammad Naseer 1993 SCMR 1822; Muhammad Asghar v. State PLD 1994 SC 301 and Allah Bux v. Ghulam Rasool 1999 SCMR 223 ref.

(bb) Criminal trial---

----Benefit of doubt---When there were two explanations possible, one favouring the accused is to be accepted and benefit of doubt is always to be extended to the accused.

Muhammad Khan v. Maula Bakhsh 1998 SCMR 570; Abdul Khaliq v. State 1996 SCMR 1553 and Muhammad Hussain v. State PLD 1995 Lah. 229 ref.

(cc) Criminal trial---

----Evidence---Appraisal of evidence ---Principle---Court has to sift chaff from grain and merely because of pertain contradictions, improvements or other factors adversely affecting credibility of a witness the testimonies shall not be rejected outright but shall be read as a whole and the evidence may be relied upon if independent corroboration through reliable evidence or circumstances is furnished beyond doubt.

Muhammad Yaqoob's case 1992 SCMR 1983 ref:

(dd) Criminal trial---

----Evidence---Appreciation of evidence---Principles---Mere fact of a prosecution witness being not inimical towards the accused does not make him a witness of truth, his evidence is to be tested under the normal rules of appreciation of evidence.

Muhammad Yasin's case 1993 PCr.LJ 448 ref.

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

----Art. 71---Oral evidence must be direct---If a witness deposed against an accused person on the strength of having heard so from two other persons (witnesses) that the said accused was responsible for a criminal act then if those two persons (witnesses) are not questioned whether they had, at all, met the first witness or even spoken to him, the evidence of such witness would be inadmissible.

Khurshid Ahmad's case PLD 1964 (W.P.) Kar. 356 and Chutto's case PLD 1958 (W.P.) Kar. 18 ref.

(ff) Criminal trial---

----Evidence---Appreciation of evidence---Exaggerated statement of witness---Assessment,--Principles---If there was exaggeration in the statement of witnesses and their veracity was also doubtful, then for safe administration of justice it would be proper to insist on independent corroborative evidence---View that if a witness was taken by police to a Magistrate for recording his statement under 5.164, Cr.P.C. or he was in custody, his evidence be looked with suspicion, was not approved as in fact it was the substance of the evidence given at the trial that was to be considered and his credibility was to be assessed after putting him to crossexamination and taking into consideration all the ambient circumstances of the case.

Yar Muhammad's case 1992 SCMR 96; PLD 1960 SC 387 and PLD 1962 SC 269 ref.

(gg) Criminal trial---

----Appreciation of evidence---Liability of an accused person is to be decided on the basis of entire evidence on record.

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

----S. 402-B, 109, 114, 120-A & 107, Secondly ---Qanun-e-Shahadat (10 of 1984), Art.23---Hijacking---Scope of conspiracy, nature of a conspiratorial agreement and the mode of proof of conspiracy---Principles.

Punishment for hijacking, as would be seen on a bare perusal of section 402, P.P.C., can be given to a person who, inter alia, conspires or abets the commission of hijacking. The word 'conspires' has not been defined in this section and ordinarily it could be taken in its literal sense since it relates to a criminal act. Reference can be made for aid and assistance to other provisions of law that provide essential material for interpretation of term 'conspiracy' or 'criminal conspiracy' such as section 120-A, P. P. C. and Article 23 of Qanun-e-Shahadat.

Likewise, the provisions of section 107, P.P.C. (secondly) are equally beneficial in understanding the incriminating act of abetment by conspiracy.

The law of criminal conspiracy is by and large founded on the concept of conspiracy as it had developed under the Common Law of England over the centuries.

A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actus, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means. And so far as proof goes, conspiracy, is generally 'matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them'.

It is a mistake to say that conspiracy rests in intention only. It cannot exist without the consent of two or more persons, and their agreement is an act in advancement of the intention which each of them has conceived in his mind. The argument confounds the secret arrangement of the conspirators amongst themselves with the secret intention which each must have previously had in his own mind, and which did not issue in act until it displayed itself by mutual consultation and agreement.

Section 120-A, P.P.C. makes criminal conspiracy a substantive offence on the statute book like every other offence in the Penal Code. By its very definition criminal conspiracy consists in the mere agreement between two or more persons to do an illegal act, or an act which is not illegal by illegal means. However, a conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an illegal act, or to do act by illegal means. As long as the design rests in intention only it is not indictable. The proviso to this section, however, expressly lays down that no agreement, except an agreement to commit an offence, shall amount to a criminal conspiracy unless some overt act besides the agreement is done in pursuance thereof.

This in essence is the whole gist of the offence, of conspiracy and its characteristics. At the core, in a conspiracy, lies some sort of agreement, be it express, implied or implicit, or in any other form, between the parties thereto to do an illegal act or to do a legal act by unlawful, means.

It will be seen that the correct position appears to be that the term 'agreement', as used in relation to the offence of conspiracy is not to be construed in any technical sense, as understood in the law of contract; nor is there any requirement that it should be expressed in any formal manner, or words; all that is required is that the minds of the parties meet understandingly so as to bring -about an intelligent and deliberate agreement to do the acts and to commit the offence charged. There should, indeed, be a union of two or more minds in a thing done or to be done, or a mutual assent to do a thing. Agreement also connotes consent of two or more persons to contract a mutual obligation, and the word 'consent' tans a concurrence of wills, voluntarily yielding the will to the proposition of another; or acquiescence or compliance therewith. The agreement can be express or implied, or in part express and in part implied. It is also not essential that each conspirator should have knowledge of the details of the conspiracy, or of the exact part to be performed by the other conspirators in execution thereof; nor is it, in fact, necessary that the details be worked out in advance to bring a given act within the scope of the general plan. It is sufficient that there is a general plan to accomplish the result sought by such means as may from time to time-be found expedient. In other words, it is sufficient to constitute the offence, as far as the combination is concerned, if there is a meeting of the minds, a mutual implied understanding or tacit agreement, all the parties working together, with a single design, for the accomplishment of the common purpose.

The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is, until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration, or due to some other cause.

Evidence should not be considered in isolation as so many bits of evidence, but the whole of it should be considered together and its cumulative effect must be weighed and given effect.

The facts in issue in a case under Article 23 of the Qanun-eShahadat are, whether there was an agreement for the alleged purpose and whether the accused was a party to it. Evidence in support of either may be given first. It may be that evidence is first allowed to go on the record about anything said, done or written by one of the accused in reference to their common intention during the continuance of the alleged conspiracy for use against the other accused of their participation in the offence, subject to the condition that there were reasonable grounds to believe about the very existence of the conspiracy and the partners in it. This course is thus provisionally admitting the evidence has a merit in it and is conducive to the expeditious disposal of the trial and, suited to the prevailing conditions where the delays in the administration of justice have become proverbial and more especially because, as iii the present case, the trial is not by jury.

Illustration to Article 23 of Qanun-e-Shahadat, 1984 is inconsistent with the Article and illustrations appended to sections of an Act of the Legislature are not to be taken as express provision of law or as binding on the Court.

In order, therefore, to decide in the present case whether any act done or statement made or thing written by an alleged co-conspirator is admissible in evidence against any of the accused persons, the test which the Court shall have to adopt is to see, in the first place, whether there is reasonable ground to believe that a conspiracy existed between him and any such person, and in the second place, whether such act, statement or writing had reference to their common intention.

The scope of Article 23 is: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or,written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also. be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; (5) it can only be used against a cu-conspirator and not in his favour.

Merely that a person was an associate of the persons who were party to criminal conspiracy, is not by itself sufficient for the foundation of the conviction of that person.

In such a case the Court shall satisfy itself if the two persons had met in the pursuit of the unlawful object or not.

Mere presence at a particular juncture would not form an element of conspiracy.

On the point of conspiracy or abetment by conspiracy and the pertinent rule/procedure appreciating the evidence the principles enunciated in Zulfiqar Ali Bhutto's case (PLD 1979 SC 53) will be followed extensively and the rule laid down in the other authorities would, of course, be given due weight if the exigencies called for as such.

Kehar Singh's case AIR 1998 SC 1883; Fazal Ellahi v. State 1985 PCr.LJ 268; Pramatha Nath Talukdar's case AIR 1962 SC 876; ZuIfiqar Ali Bhutto's case PLD 1979 SC 53; Corpus Juris Secundum, para. 373; Asadullah v. Muhammad Ali \PLD 1971 SC 541; Razia Begum v. Hijrayat Ali PLD 1976 SC 44; Balmokand's case AIR 1915 Lah. 16; Kehar Singh's case 1989 PSC 533 = AIR 1998 SC 1933; Mulcahy v. R. (1868) 3 HL 306 and Rakhal Chandra v. Emperor AIR 1930 Cal. 647 ref.

(ii) Criminal trial---

---- Appreciation of- evidence---Evidence not to be considered in isolation as so many bits of evidence, but the whole of it should be considered together and its cumulative effect must be weighed and given effect.

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

----S. 417---Appeal against acquittal---Case being of lack of evidence, finding of acquittal of accused was maintained.

(kk) Criminal trial---

----Evidence---Corroboration---Principle---Prosecution witness had himself made improvements in his evidence and his testimony required corroboration, consequently a piece of evidence which was yet to be complemented by way of corroboration could not corroborate another testimony which itself required corroboration.

Yar Muhammad v. State. 1992 SCMR 96; Niaz v. State PLD 1960 SC 387 and Contempt against the Daily Frontier Post: in re PLD 1992 SC 69 ref.

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

----Art. 129(g)---Existence of certain facts---Presumption by the Court--Adverse inference when can be drawn---Adverse inference cannot be drawn against prosecution in every case in term of illustration (g), to Art. 129 of the Qanun-e-Shahadat, 1984 owing to non-production of certain evidence--Looking to facts and circumstances of each case an adverse inference can only be drawn if it is shown that a material witness or say, documentary evidence has been withheld owing to some oblique motive and for considerations not supported on the record.

Shah Ali v. The Crown PLD 1954 Sindh 136; Ghulam Muhammad v.' State 1976 PCr.LJ 258: Wazir v: State PLD 1960 (W.P.) Kar. 674 and Pir Bux v. State 1979 PCr.LJ 746 ref.

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

----Art. 140---Criminal Procedure Code (V of 1898), S.164--Contradiction---Concept---Witness. in his cross-examination had replied that he did not recall or he did not remember those facts and in view of such replies he had been confronted with his version given in his statement under S.164. Cr.P.C.---Such were not contradictions in broader sense within the meaning of Art.140, Qanun-e-Shahadat, 1984---Version that the witness did not remember a fact would not amount to denial or affirmance of a fact--Witness may omit to furnish details in his previous statement, or the previous statement may be absolutely devoid of details but the omission of details would not amount to contradiction---Witness in view of minor improvements could not be characterized as a dishonest witness merely for such versions although independent corroboration would ordinarily be required before relying on such evidence as the sole basis of conviction---Principles.

In the present case a portion of the deposition of witness lifted from his cross-examination had been quoted by the trial Court wherein the witness had replied that he did not recall or he did not remember those facts and in. view of such replies he had been confronted with his version given in his statement under section 164, Cr.P.C. These are not contradictions in broader sense within the meaning of Article 140 of Qanun-e-Shahadat. The version that the witness did not remember a fact would not amount to denial or affirmance of a fact, a witness may omit to furnish details in his previous statement, or the previous statement may be absolutely devoid of details but the omission of details would not amount to contradiction. Nevertheless, the versions which were not included in the previous statement recorded under section 164, Cr.P.C. may be viewed adversely if such improved statements were made with dishonesty and with a view to strengthening the case version of the witness reproduced by the trial Court mostly related to role of an accused with respect to typing of the notification of appointment. These were minor improvements and a witness could not be characterized as a, dishonest witness merely for these versions although independent corroboration would ordinarily be required before relying on such evidence as the sole basis of conviction.

If he fails to give a proper account and exorbitantly differs as regards the timings, those portions would certainly be excluded but his testimony cannot be brushed aside as a whole. Yet, because of deficiencies in his versions, his evidence alone will not serve as sole foundation of conviction and corroboration if it be required. The principle falsus in uno falsus in omnibus is not applicable in Pakistan and the testimony of a witness cannot be thrown overboard as a whole, but chaff is to be sifted from the grain. All the same, the slightest benefit of doubt should be resolved in favour of the accused.

PLD 1978 Lah. 523; Saeed Muhammad Shah v. State 1993 SCMR 550 and Zulfiqar Ali Bhutto's case PLD 1979 SC 53 ref.

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

----S. 417---Appeal against acquittal---Evidence in the case of accused was extremely weak to support the charge against him---Finding of acquittal, could not, at all be questioned in circumstances.

(oo) Criminal trial---

----Evidence---Corroboration---Solitary version of a witness is of no material significance in the absence of direct and independent corroboration.

Zulfiqar Ali Bhutto's case PLD 1979 SC 53 ref.

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

----Ss. 402-B, 109, 114, 120-A & 107, Secondly ---Qanun-e-Shahadat (10 of 1984), Art.23---Hijacking---Conspiracy---Proof---Proof of conspiracy needs evidence with regard to a particular design and then the Court has to look toward express, implied or tacit agreement between such participants and in that event even utterances would be relevant---Where the testimonies placed on record as against the accused persons had diverged in different dimensions, in such circumstances, the doubt obtaining from the. testimonies was to be resolved in favour of the accused persons.

Per Sarmad Jalal Osmany. J. [Minority view]--

Azizullah K. Sheikh, Khawaja Naveed Ahmad, Saadia Abbasi, Saleem Zia, Muhammad Nehal Hashmi, Arshad Khan Jadoon and Fahim Riaz Siddiquei for Appellant (in Sp1.Cr.A.T. Appeal No.43 of 2000).

Raja Qureshi, A.-G., Sindh, Barrister, Zahoorul Haq, Special Prosecutor, M.Ilyas Khan, Addl: Special Prosecutor for the State . (in Sp1.Cr.A.T. Appeal No.43 of 2000).

Raja Qureshi, A.-G. Sindh, Zahoorul Haq, Special Prosecutor, Ilyas Khan, Anjum Jawaid Khan and Abdul Latif Yousuf Zai, Addl. Prosecutors for the State (in Spl.Cr. A.T. Acq. Appeal No.46 of 2000).

Azizullah K. Shaikh, Aftab Farrukh, Khawaja Haris, Mir Muhammad Shaikh and Manzoor A. Malik for Respondents (in Spl.Cr. A.T. Acq. Appeal No.46 of 2000).

Shahid Khaqan Abbasi in person.

Raja Qureshi, A.-G., Sindh, Zahoorul Haq, Special Prosecutor, Muhammad .Ryas Khan and Anjum Jawed Khan, Addl. Prosecutor for the State (in Spl. Cr.A.T. Appeal No.50 of 2000).

Ejaz Hussain Batalvi for Respondent (in Spl. Cr.A.T. Appeal No.50 of 2000).

PLD 2002 KARACHI HIGH COURT SINDH 311 #

P L D 2002 Karachi 311

Before Ghulam Nabi Soomro and Ata‑ur‑Rehman, JJ

FARHAN ZAFAR and others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Revisions Nos.181, 146 and 165 to 174 of 2001, decided on 6th February, 2002.

Anti‑Terrorism Act (XXVII of 1997)‑‑

‑‑‑‑S. 6 & Sched. [as substituted by Anti‑Terrorism (Amendment) Ordinance (XXXIX of 2000)]‑‑‑Criminal Procedure Code (V of 1898), S. 439‑‑Jurisdiction of Special Court‑‑‑Offences of vehicle snatching and criminal trespass (illegal Qabza) involved in the revision petitions were not covered by the Anti‑Terrorism Act, 1997, after the promulgation of the Anti-Terrorism (Amendment) Ordinance, 2001 and the same were no more triable by the Anti‑Terrorism Courts‑‑‑Said offences were now triable by the Courts of Sessions or such other Courts of competent jurisdiction‑‑‑Impugned order passed by the Anti‑Terrorism Court refusing to transfer the cases to the Sessions Court were consequently set aside being not in accordance with law and the cases were ordered to be transferred to the respective Sessions Courts for further proceedings in accordance with law‑‑‑Revision petitions were accepted accordingly.

Khawaja Naveed Ahmed for Applicant (in Criminal Revision No. 181 of 2001).

Obaid-ur-Rehman for Applicant (in Criminal Revision No. 146 of 2001).

S. Mehmood Alam Rizvi for Applicant (in Criminal Revisions Nos. 165 to 174 of 2001).

Habib Ahmed, A.A.‑G. for the State.

Date of hearing: 6th February, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 315 #

P L D 2002 Karachi 315

Before Zia PerweZ, J

Messrs M. A. MAJEED KHAN‑‑‑Petitioner

Versus

KARACHI WATER AND SEWERAGE BOARD and others‑‑‑Respondents

Suit No.859 of 1996, decided on 24th December, 2001.

(a) Civil Procedure Code (V of 1908)‑‑‑‑‑‑‑0. XXX, Rr. 1 & 10‑‑‑Suits by partnership concerns and proprietary concerns‑‑‑Distinction‑‑‑Filing of suit by or against partnership firm is permitted under the provisions of OXXX, R.1, C.P.C., whereas O.XXX, R.10. C.P.C. deals with suit in the name of the proprietary, concern and specifically provides only for filing of suits against a proprietary concern in its name but does not provide for filing of a suit by a proprietary concern as it does not have any legal status/character as distinct from its proprietor‑‑Proprietary concern thus cart be sued in its name but it cannot sue in its own name.

Ismail Haji Sulaiman v. Messrs Line and another PLD 1961 Dacca 693; Habib Bank Limited v. Iqbal 1. Chundrigar 1983 CLC 1964; Ahan Saz Contractors v. Pak Chromical Limited 1999 MLD 1781 and Collector of Customs v: Imrarn Enterprises 2001 CLC 419 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑‑‑‑‑0. XXX, R.10‑‑‑Suit instituted in the name of a proprietor of a firm‑‑Maintainability‑‑‑Plaint cannot be instituted in the name of proprietor of a firm as the same is hit by the provisions of O.XXX, R,.10, C.P.C.‑‑‑Suit instituted by individuals and ‑juristic _ persons are covered by specific provisions in pursuance to the rule against perpetuatory and at the same time setting out perpetuity for providing the continuation of the suit even after expiry of the parties‑‑‑Likewise in suit against corporation, the procedure specifically provides for continuation of suit by the official liquidator, in case of companies and for partnership firms in the manner as provided under the provisions of Partnership Act, 1932, which is in conformity with the public policy‑‑‑In the case of proprietary concern, as the law specifically bars institution of suit in name of firm carried by persons other than their own name under provisions of O.XXX, R.10, C.P.C.‑‑‑Where no such procedure is provided for institution of suit by proprietary concerns, continuation of proceedings in such case only leads to legal complications‑‑‑Suit instituted by proprietary concern is not maintainable in circumstances.

(c) Civil Procedure Code (V of 1908)‑‑‑‑‑‑‑0. VI, R.17, VII, R..11 & OXXX, R.10‑‑‑Limitation Act (IX of 1908), S.3‑‑‑Plaint, rejection of‑‑‑Amendment in plaint‑‑‑Suit was filed by proprietary concern in the year 1996‑‑‑Defendant raised a plea that the suit was not maintainable under OXXX, R.10, C:P.C. and the same was liable to be rejected‑‑‑Plaintiff sought amendment in plaint‑‑‑Validity‑‑‑Any amendment at such belated stage being hit by the provisions of S.3 of the Limitation Act, 1908, could not be allowed‑‑‑Where the suit was not maintainable at the time of institution, amendment could not be allowed to make the proceedings in the suit so as to make it maintainable resulting in change of the character of the suit by introducing new plaintiff for which no application was made by the party‑‑‑High Court declined to allow amendment in the plaint‑‑‑Plaint was rejected in circumstances.

G.M. Salem for Petitioner.

Safdar Hussain Shah and Tahawur Ali Khan for Respondents.

Date of hearing: 24th December, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 317 #

P L D 2002 Karachi 317

Before S. Ahmed Sarwana, J

RAFIQUE alias RAFIQUE AHMED ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 34 of 2002, decided on 11th February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑‑‑‑S. 497‑‑Penal Code (XLV of 1860), S.302/34‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.38 & 39‑‑‑Bail‑‑‑Confession made by the accused before police officers in the police station could not be used against them under the law as the same was not made in the presence of a Magistrate‑‑‑Said confession even could not be termed as an extra judicial confession‑‑‑Report of the Ballistic Expert had not supported the prosecution version‑‑‑No witness had so far been examined by the prosecution to connect the accused with the murder of .the deceased‑‑ Case against accused, thus, required further inquiry and they were admitted to bail accordingly.

Habibullah Shaikh for Applicant. Muhammad Iqbal Memon for the State.

Date of hearing: 11th February, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 320 #

P L D 2002 Karachi 320

Before Wahid Bux Brohi, J

NAVEED‑‑Applicant

Versus

THE STATE and another‑‑‑Respondents

Criminal Bail Application No. 1026 of 2001, decided on 1st March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑‑‑‑S. 497(1), third do fourth proviso‑‑‑Penal Cock (XLV of 1860), S.324-‑Bail on the ground of statutory delay ‑‑‑Accused was in continuous detention for a period of more than one year and delay in the trial was not attributable to him ‑‑‑Awas not involved in any other criminal case and even in the present incident he had inflicted only one blow and then fled away‑‑‑Accused, therefore, could not be treated as a dangerous and hardened criminal‑‑‑Bail was granted to accused in circumstances.

Zahid Hussain Shah v. The State PLD 1995 SC 49 ref.

Shoukat H. Zubedi for Applicant.

Muhammad Irfan for the Complainant.

Arshad Loadhi, A.A.‑G. for the State.

Date of hearing; 18th March, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 322 #

P L D 2002 Karachi 322

Before Syed Zawwar Hussain Jafery, J

MASHOOQ ALI and another‑‑‑Applicants

versus

THE STATE ‑‑‑ Respondent

Criminal Bail Application No.769‑ of 2001, heard on 24th Deceniner, 2001.

Criminal Procedure Code (V of 1898)‑‑‑‑‑‑‑S. 497(2)‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(2)‑‑‑Bail‑‑‑Complainant had not implicated the accused in the commission of the offence at the trial‑‑‑Court in view of nonavailability of evidence had no option but to release the accused on bail in view of subsection (2) . of 5.497, Cr.P.C., scope of which was available during the course of investigation, inquiry or trial‑‑‑Accused were in Jail for the last more than six months and that Trial Court had yet to record further evidence for deciding the whole case‑‑‑Nothing had been robbed from the complainant as mentioned in the F.I.R. and it was an attempt of robbery which did not fall within the prohibitory clause of S.497(1), Cr.P.C,‑‑Accused were admitted to bail in circumstances.

Muhammad Arif v. The State 1999 MLD 939; Muhammad Ismail v. Muhammad Rafique and others PLD 1999 SC 585 and Malik Amanullah v.

State 1998 PCr. LJ 914 ref..

Habibullah Shaikh for the Applicants.

Mumtaz Ali Siddiqui for the State.

Date of hearing: 24th December, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 325 #

P L D 2002 Karachi 325

Before Muhammad Afzal Soomro, J

RAJA RAI ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.1593 of 2001, decided on 24th December, 2001.

Criminal Procedure Code (V of 1898)‑‑‑‑‑‑‑S. 497‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4‑‑‑Bail‑‑‑Huge quantity of whisky and "Charas" had been allegedly recovered from the accused while traveling in a vehicle, which had made the case distinguishable from the other cases not falling within the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Court should be strictly conscious in exercise of its discretion for purpose of bail in cases in which the offence had been committed against the society as a whole‑‑‑Approach of the Court in such cases should be reformation‑oriented with the desire to suppress such type of offences‑‑‑Bail was declined to accused in circumstances.

Mst. Iqbal Bibi v. The State 1995 PCr.LJ 14'72; Muhammad Akram alias Nikku and another v. The State 1996 PCr.LJ 392; Aftab Ahmed v. The State 1994 PCr.LJ 1880 and Muhammad Sibtain v. The State 1994 PCr.LJ 2547 ref.

Imtiaz Ahmed v. The State PLD 1997 SC 545 rel.

Muhammad Ashraf Kazi for Applicant.

Fazlur Rehman Awan for the State.

Date of hearing: 21st December, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 328 #

P L D 2002 Karachi 328

Before Mushir Alam, J

MUHAMMAD YOUSAF‑‑‑Petitioner

Versus

Dr. MADAD ALI alias GULAB LASKANI and 8 others‑‑‑Respondents

C.P. No.S‑532 of 2001, heard on 12th February, 2002.

(a) Constitution of Pakistan (1973)‑---Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Invocation of Constitutional jurisdiction, is subject to certain limitations and conditions‑‑‑Not that in every case where public functionaries fail or neglect to perform their statutory obligation, such jurisdiction as a matter of course can be exercised‑‑‑Foremost condition for invoking the jurisdiction is nonavailability of alternate and efficacious remedy.

(b) Constitution of Pakistan (1973)‑‑‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Investigation by police‑‑‑Cross version case‑‑‑Powers of Investigating Officer‑‑‑Scope‑‑‑Even in case of a divergent version the police can investigate into the offence independently if other version can be spelt out from the investigation then the real culprit, may it be informant himself, can be arrested as police is bound to unearth the crime.

Kaura v. The State 1983 SCMR 436; Yousif v. State PLD 1988 Kar. 521; Ghulam Hussain Jeelani v. Government of Sindh PLD 2001 Kar. 169; Wajid Ali Khan Durrani's case 2001 SCMR 1556 and Ghanwa Bhutto's case PLD 1997 Kar. 119 ref. .

(c) Criminal Procedure Code (V of 1898)‑‑‑‑‑‑‑Ss. 22‑A, 22‑B, 54 & 200‑‑‑Investigation of criminal case‑‑‑Justice of peace‑‑‑Duties‑‑‑In addition to the remedy of filing a direct complaint under S.200, Cr.P.C. the provisions of S.22‑A & 22‑B, Cr.P.C. have been added to the Statute Book whereby Sessions Judges and Judge of a High Court, by virtue of their office being justice of peace, can exercise all powers of a police under S.54, Cr.P.C.‑‑‑On receipt of information of occurrence of any incident involving breach of peace or commission of any offence within such local area, Justice of Peace is conferred jurisdiction under S.22‑A, Cr.P.C. to make inquiries into the matter forthwith and report the result of his inquiry to the nearest Magistrate and also to officer incharge of the nearest Police Station‑‑‑Justice of Peace. at the same time can also pass order for the registration of F.I.R. against a person against whom a reasonable suspicion exists of any cognizable offence in addition to causing arrest of the culprit in such offence.

Imamdin v. S.H.O. and 4 others 1989 PCr.LJ 2016 ref.

(d) Constitution of Pakistan (1973)‑‑‑‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), Ss. 22‑A & 22‑B‑‑Constitutional jurisdiction of High Court and that of Justice of Peace under Ss.22‑A & 22‑B, Cr.P.C.‑‑‑Comparison‑‑‑Powers conferred on Sessions Judges and the Judge of High Court as Justice of Peace by virtue of their office are vast as compared to the jurisdiction exercisable under Art. 199 of the Constitution where merely a direction can be issued, if at all, a case is made out.

(e) Constitution of Pakistan (1973)‑‑‑‑‑‑Art.199‑‑‑Criminal Procedure Code (V of 1898), Ss.22‑A, 22‑B & 154‑‑‑Constitutional petition‑‑‑Registration of F.I.R.‑‑‑Alternate and efficacious remedy‑‑‑Grievance of the petitioner was that the case was not registered by the police‑‑‑Validity‑‑‑Where remedy of approaching Justice of Peace under Ss.22‑A & 22‑B, Cr.P.C. was available and the same being far more efficacious and speedy remedy, High Court advised the petitioner to avail such alternate remedy instead of approaching High Court in Constitutional jurisdiction‑‑‑Constitutional petition was dismissed in circumstances.

The Sfate v. Haider Zaidi 2001 SCMR 1919; Muhammad Ilyas v. S.H.O. 1997 MLD 1527; Ghanwa Bhutto v. Government of Sindh PLD 1997 Kar. 119; Altaf Hussain v. Government of Sindh PLD 1997 Kar. 660; Muhammad Masood v. S.S.P. Railways 2000 PCr.LJ 67; Javed (Mrs.) v. S.H.O. 2000 MLD 997; Shahbaz Ali Chandio v. S.H.O. 1999 PCr.LJ 1670; Bhoran Khatoon v. The State 1999 PCr.LJ 1532; Mazhar Hussain Naqvi v. Zafar, H. Zaidi PLD 2001 Kar. 269; Ghulam Hussain Jeelani v. Government of Sindh PLD 2001 Kar. 169; Altaf Hussain 'v. Government of Sindh PLD 1997 Kar. 600 and Kaura v . The State 19$3 SCMR 436 distinguished.

(f) Practice and procedure‑---Rule of propriety‑‑‑Concurrent jurisdiction vesting in two Courts‑‑‑Rule of propriety, demand of‑‑‑Subordinate Court in such a case should be approached in the first instance.

Faiz Muhammad Qureshi for Petitioner. Madad Ali Shah Syed for Respondent No. l . Masood A. Noorani, Addl. A.‑G. for the State.

Date of hearing: 12th February, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 333 #

P L D 2002 Karachi 333

Before Wahid Bux Brohi, J

Mst. GUL SHAHNAZ‑‑‑Plaintiff

Versus

ABDUL QAYYUM SOOMRO and another‑‑‑Defendants

Suit No.670 of 1998, decided on 4th February, 2002.

(a) Civil Procedure Code (V of 1908)‑‑‑‑‑‑‑S. 11‑‑‑Specific Relief Act (I of 1877); Ss. 12, 42 & 54‑‑‑Res judicata, principle of‑‑‑Applicability‑‑‑Earlier suit for declaration was rejected by Trial Court and appeal against the judgment and decree was dismissed by Lower Appellate Court‑‑‑Suit for specific performance of agreement to sell was filed subsequently‑‑‑Validity‑‑‑Bar contemplated under S.11, C.P.C. would not apply to subsequent suit for specific performance of contract and permanent injunction‑‑‑Dismissal of appeal by the Lower Appellate Court had no bearing on the subsequent owing to distinct cause of action in both the matters‑‑‑Principle of res judicata was not applicable in circumstances.

(b) Specific Relief Act (I of 1877)‑‑‑‑‑‑S. 12‑‑‑Suit for specific performance of agreement to sell‑‑‑Cause of action‑‑‑Agreement of sale which provided basis for institution of the suit was admitted by the defendant and the contract evidenced by said agreement was sought to the specifically enforced‑‑‑Cause of action had accrued to the plaintiff to bring the suit.

(c) Civil Procedure Code (V of 1908)‑‑‑‑‑‑‑0. 11, R.2‑‑‑"Cause of action"‑‑‑Connotation‑‑‑"Cause of action" means every fact that will be necessary for the plaintiff to prove if traversed in order to support his right to judgment‑‑‑Cause of action has nothing to do with the defence set up by the adversary more it should be confined to nature and character of the relief sought.

(d) Contract Act (IX of 1872)‑‑‑‑‑‑‑S. 55‑‑‑Time as essence of contract‑‑‑Determination‑‑‑Terms of the agreement themselves speak, if the time was of the essence of the contract‑‑Earlier events demonstrating the conduct of parties might also be taken into account in this context.

Muhammad Nawaz Khan v. Farrah Naz PLD 1999 Lah. 238; Muhammad Anwar Khan Ghouri v. Muhammad Taqi PLD 1977 Kar. 391; Faqir Muhammad v. Abdul Momin PLD 1995 Lah. 405; Ghulam Nabi v. Muhammad Yaqoob PLD 1983 SC 344; Essabhoy v. Saboor Ahmed PLD 1973 SC 39; Ghulam Jilani v. Munir Ahmed Khan PLD 1960 (W.P.) Kar. 517; Abdul Hamid v. Abbas Bhai‑Abdul Hussain PLD 1962 SC 1; Haji Muhammad Yaqoob v. Shah Nawaz PLD 1998 Kar. 758 and Abdul Hameed v. Ghulam Muhammad 1987 SCMR 1005 ref.

(e) Contract Act (IX of 1872)‑‑‑‑‑‑‑S. 55‑‑‑Time as of the essence of contract‑‑‑Applicability‑‑‑Where a condition in the agreement to sell showed that the specified. date was not inevitably the cut‑off date or the date of the execution of conveyance deed, then time was not of the essence of the contract between the parties in circumstances.

(f) Contract Act (IX of 1872)‑‑‑‑‑Ss. 73 & 74‑‑‑Breach of agreement to sell‑‑‑Compensation‑‑‑Forfeiture of earnest money‑‑‑Unconscionable forfeiture‑‑‑Determination‑‑‑Court, in order to determine the unconscionable forfeiture, has to take into consideration the nature of the contract, the conduct of the parties and proportion of the amount of deposit towards sale price‑‑‑Where the purchaser had not merely defaulted but had repudiated the contract and his conduct suffered from impropriety, the Court would refuse to come to his aid, because one who seeks equity must come with clean hands‑‑‑Where seller had sharply exercised his right or had obtained an unfair advantage, though acting within his right under law, would be taken into consideration in favour of granting relief t6 the purchaser.

Karachi Port Trustees v. Ghulamali Habib PLD 1961 (W.P.) Kar. 623 ref.

(g) Specific Relief Act (I of 1877)‑‑‑‑‑‑‑Ss. 12 & 54‑‑‑Specific performance of agreement to sell‑‑‑Forfeiture of earnest money ‑‑‑Vendee had performed her part of contract and had paid more than 5596 of the consideration amount to the vendor‑‑‑Instead of performing his part of contract, the vendor did not complete the formalities and failed to execute the necessary transfer documents as per stipulation in the agreement, after receiving the balance consideration ‑‑‑Validity‑‑Threatened action of vendor in forfeiting the amount was unconscionable as the he had received more than 55 96 of the consideration amount‑‑‑When there was no condition in the agreement itself and the default in performance of the contract had been committed by the vendor, he was not justified in equity to forfeit the amount unilaterally ‑‑‑Vendee was entitled to the relief of specific performance of contract and was also entitled to the relief of injunction as admittedly the vendor had threatened the vendee with actions of cancellation of contract and forfeiture of the amounts already paid much against the spin the contract‑‑‑Suit was decreed in circumstances.

Muhammad Sharif for Plaintiff. Khalid Daudpota for Respondents.

Date of hearing: 16th January, 2002.,

PLD 2002 KARACHI HIGH COURT SINDH 343 #

P L D 2002 Karachi 343

Before Ata‑ur‑Rehman and Muhammad Mujeebullah Siddiqui, JJ

UNION INDUSTRIES (PVT.) LTD. ‑‑‑Petitioner

Versus

GOVERNMENT OF PAKISTAN‑‑‑Respondent

Constitutional Petition No.D‑1821 of 1996, decided on 14th February, 2002.

Per Ata‑ur‑Rehman, J.

(a) Customs Art (IV of 1969)‑‑‑‑‑‑‑Ss. 33 & 223‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Refund of customs duty‑‑‑Instructions of Central Board of Revenue‑‑‑Effect‑‑‑Where none of the ingredients as mentioned in S.33 of the Customs Act, 1969 was attracted, said provisions would not come into play‑‑‑Central Board of Revenue, in the present case had given specific directions to the Authorities for refund of the amount, which the Authorities were bound to comply, therefore, there was no need for the petitioner to move any application‑‑‑Subordinate functionaries of Customs had to follow the orders of the Central Board of Revenue.

Per Muhammad Mujeebullah Siddiqui, J.

(b) Customs Act (IV of 1969)‑‑‑‑‑‑Ss. 33 & 223‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Excess customs duty, refund of‑‑‑Erroneous classification‑‑Administrative orders‑‑‑Grievance of the petitioner was that the Central Board of Revenue realized that excess payment was made due to erroneous classification ruling given by it, which was subsequently rectified and therefore all such persons who were made to pay excess amount were to be refunded such excess amount‑‑‑Authorities instead of complying with the directions,. dismissed the application for refund of the excess duty on the ground of limitation‑‑‑‑Validity‑‑‑All officers of customs and other persons employed in the execution of the Customs Act, 1969, were bound to observe and follow the orders, instructions and directions of the Central Board of Revenue under the provisions of 5.223 of the Customs Act, 1969‑‑Directions given by the Central Board of Revenue regarding refund of excess duty were purely administrative in nature which were required to be followed by the Authorities‑‑‑Petitioner had applied for refund and had thereby requested for mere compliance of the Central Board of Revenue direction, therefore, the Authorities ought to have refunded the amount in compliance of the binding direction of Central Board of Revenue and were not justified in taking up 'cudgels with the petitioner on the basis of technicalities‑‑‑Orders passed by the Authorities were not warranted in law and were set aside‑‑High Court directed the Authorities to refund the excess duties recovered from the petitioner on account of erroneous classification which had been rectified by Central Board of Revenue itself with retrospective effectPetition was allowed accordingly.

Kohinoor Industries Ltd. v. Government of Pakistan 1994 CLC 994 Ghulam Abbas v. Member (Judicial), C.B.R. 1994 CLC 1612 and Messrs. Pfizer Laboratories v. Federation of Pakistan PLD 1998 SC 64 ref.

(c) Customs Act (IV of 1969)----S.33Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional ;s customs duty‑‑‑Provisions contained in S.33 of the Customs Act, 1969‑‑‑Applicability‑‑‑Provisions of S.33 are confined to the refund of any customs duties or charges claimed to have been paid or over‑paid through inadvertence, error or misconstruction on the part of an assessee‑‑‑Such provisions are not applicable to the refund on account of arbitrary or unwarranted . assessment made by the Customs Authorities including Central Board of Revenue‑‑‑Refund under S.33 of the Customs Act, 1969 also becomes due on account of any order in revision, appeal or a Constitutional petition.

(d) Interpretation of statutes‑‑‑‑‑‑ Plain language of law is to be applied and nothing is to be added or deducted from the clear language of law.

(e) Interpretation of statutes‑‑‑‑‑‑ Ascertaining true intent of Legislature‑‑‑In order to ascertain the true intent of Legislature and the purpose and purport of legislation the entire statute is to be considered in its totality‑‑‑Any particular provision in a statute is not to be considered in isolation.

(f) Customs Act (IV of 1969)‑‑‑‑‑‑‑Ss. 32(3) & 33‑‑‑Constitution of Pakistan (1973), Art.l99‑‑Constitutional petition‑‑‑Erroneous levy of customs duty‑‑‑Provisions of Ss.32(3) & 33 of the Customs Act, 1969‑‑‑Applicability‑‑‑Comparison of the two provisions of law shows that they deal with situation where there is no element of unfair act on the part of assessee or the Customs Officials‑‑Refund of any customs duties or charges which have been paid or over‑paid through inadvertence, error or misconstruction by the assessee himself and not on account of any order, instructions or directions of the Customs Authorities, whether mistaken or otherwise, is dealt with under the provisions of S.33 of the Customs Act, 1969‑‑‑Where the act is initiated on account of an inadvertence, error or misconstruction on the part of an assessee, therefore, on one hand the assessee has been given an opportunity to rectify and recoup the loss caused to him on account of his own act and on the other hand, a very important principle of taxation i.e. principle of finality, has been kept in view and therefore, a period of limitation has been provided in order to finalize the transaction and to avoid any adverse financial implication‑‑‑Like‑wise if there is any non‑levy or short‑levy of tax or any erroneous refund by reason of any inadvertence, error or misconstruction on the part of tax officials and not on account of any misdeclaration or collusion, the Customs Department has been empowered to initiate proceedings for making the loss good to the public exchequer.

(g) Customs Act (IV of 1969)‑‑‑‑‑‑‑S. 32(3) [as amended by Finance Ordinance (XXI of 2000)]‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Refund of excess duty‑‑‑Limitation‑‑‑Enhancement‑‑‑Effect‑‑‑Where the period of limitation has been enhanced to three years by Finance Ordinance, 2000, an assessee and the Government have been placed at par, so far any payment of tax on account of inadvertence, error or misconstruction on the part of assessee an&non‑levy of short‑levy of tax for the same reason on the part of tax official is concerned.

(h) Customs Act (IV of 1%9)‑‑‑‑‑‑‑Ss. 32(3) & 33‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Refund of excess customs duty‑‑‑Mistake on the part of Authorities‑‑‑Limitation‑‑‑Refund of an excess amount on account of an act on the part of Tax Officials including Central Board of Revenue, the Legislature has neither made any specific provision in this regard nor has provided a period of limitation in this behalf‑‑‑Reason for the same is that it is not possible to specify a period of limitation for refund on account of any erroneous, mistaken, incorrect, illegal or arbitrary orders of the Tax Officials with reference to the date of excess payment as no specific period can be visualized when a refund becomes due after an error is rectified by the Assessing Authorities or Central Board of Revenue or in quasi‑judicial appellate proceedings under the Customs Act, 1969, or by the superior Courts in exercise of Appellate or Constitutional jurisdiction‑‑‑Legislature has therefore, left the issue, in its own wisdom, to be dealt with in accordance with the general and common principles of law and justice.

(i) Customs Act (IV of 1969)‑‑‑‑‑‑‑Ss. 32(3) & 33‑‑‑Limitation Act (IX of 1908), Art.181 ‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Refund of excess customs duty‑‑‑Limitation‑‑‑Petitioner applied for refund of customs duty paid in excess‑‑‑Authorities declined the application on the ground that the same was time‑barred‑‑‑Validity‑‑‑Right toy apply for refund, accrued to the petitioner when the Central Board of Revenue rectified its mistake and gave retrospective effect to its Classification Ruling No.5 of 1991, vide instructions contained in the letter dated 27‑6‑1992‑‑‑No mistake was found on the part of the petitioner and provisions of Art. 181 of the Limitation Act, 1908, would apply which provided a period of limitation for three years in respect of. an application for which no period of limitation was provided in the Limitation Act, 1908 and the period of limitation would begin to run from the time when the right to apply accrued‑‑‑Application was within the period of limitation in circumstances.

Zahid F. Ibrahim for Petitioner.

Raja M. Iqbal for Respondent.

Date of hearing: 14th February, 2002

PLD 2002 KARACHI HIGH COURT SINDH 359 #

P L D 2002 Karachi 359

Before Shabbir Ahmad, J

LIAQUAT NATIONAL HOSPITAL ASSOCIATION

through Chairman, Governing Body and another‑‑‑Plaintiffs

versus

PROVINCE OF SINDH through Chief Secretary and 5 others‑‑Defendants

Suit No.892 of 2000, decided on 5th October, 2001.

(a) Specific Relief Act (I of 1877)‑‑

‑‑‑‑S. 56(d)‑‑‑Injunction, grant of‑‑‑Interference with public duties of Government Department‑‑‑Scope‑‑‑State functionaries are expected to act fairly and justly in a manner not to give to anyone a cause of complaint or being accused of biased treatment, but experience is otherwise and due to discriminate and partial behaviour of officials, the sanctity attached to official act has been eroded gradually‑‑‑Injunction, under S.56(d) of Specific Relief Act, 1877, cannot be granted against Government Department including its individual officers so as to interfere in their public duties authorised by law, but where the Department or its Officer exceeds or abuses the powers conferred upon them by Legislature, then said clause will not apply.

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

‑‑‑‑Arts. 184 & 199‑‑‑Public interest litigation‑‑‑Purpose‑‑‑Purpose of public interest litigation is not enforcing right of one individual against another as happens in case of ordinary litigation, rather such litigation is intended to promote and vindicate public interest involving violations of Constitutional or legal rights of a large number of people, who are poor, ignorant or in a socially or economically disadvantageous position.

‑‑‑ . 16‑A‑‑‑Civil Procedure ode (V of 1908), OXXXIX, Rr. 1 & 2‑‑Specific Relief Act (I of 1877), S.56(d)‑‑‑Interim injunction, grant of‑‑Plaintiff being registered body was running the affairs of a hospital and sought restraint order against defendants/functionaries from acting on interim report prepared on the basis of allegations of maladministration in its affairs‑‑Army Monitoring Cell and Minister of Health after conducting separate inquiry submitted their reports, which vindicated the position of plaintiffs‑‑Provincial Government thereafter constituted a Committee to probe into the matter, which prepared interim report‑‑‑Contention of plaintiffs was that interim report had been prepared without giving them opportunity of hearing with an object to take over the management of hospital and appoint an Administrator‑‑‑Validity‑‑‑Inquiry had been conducted twice i.e. by Army Monitoring Team and Minister of Health and according to recommendations of Army Team, bye‑laws of Association were to be examined; certain portions of income to be diverted towards well being of patients; doctors without post‑graduation should not be allowed to work as consultants; doctors on faculty of hospital should not be allowed to practise outside the hospital; proposed enhancement of amount of donation would be against the public interest; and that an independent audit team should conduct the audit and contracts should be publicized for healthy competition‑‑Said recommendations could not be a ground for further investigation‑‑‑Complaint had already been probed by Army Team‑‑‑Successive inquiries into the affairs of hospital being run by Association would affect its reputation and working in the eye of public in general‑‑‑Interim report being violative of law had been recalled‑‑‑Action of Committee in issuing interim report with recommendation to review the termination of other defendants (former employees of Association) reflected not only on the conduct of Government functionaries of their biased attitude, butexcess of jurisdiction‑‑‑Further probing into the matter at the behest of motivated former employees, who had either resigned or their services had been terminated, was also a partial attitude only to affect the reputation of hospital, which was providing better medical facilities to people than. Government Hospitals‑‑‑Plaintiffs had demonstrated a prima facie case and if injunction was not granted, the same would affect their reputation, which could not be compensated in terms of money‑‑‑Balance lies in favour of grant of injunction‑‑‑Merely on the plea that suit and injunction was barred by S.56 of Specific Relief Act, 1877, injunction could not be refused in the background of biased, partial and unjust conduct of public functionaries, thus, the immunity could not be extended under cl. (d) of S.56 of Specific Relief Act, 1877‑‑Application was allowed in circumstances.

Messrs Abdullah & Co. v. Province of Sindh 1992 MLD 293; Chairman, Regional Transport Authority, Rawalpindi v. Pak Mutual Insurance Co. Ltd., Rawalpindi PLD 1991 SC 14; Dr. Muhammad Asghar Malik v. Auqaf .Department 1998 MLD 76 and People's Union for Democratic Rights and others v. Union‑of India and others 1984 PSC 314 ref.

Zahid P. Ibrahim for Plaintiffs.

Ch. Muhammad Rafiq, Addl. A.‑G. for Defendants Nos. 1 to 3.

Naimur Rehman for Defendants Nos. 4 to 6.

PLD 2002 KARACHI HIGH COURT SINDH 374 #

P L D 2002 Karachi 374

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

HAKIM ALI ZARDARI‑‑‑Petitioner

Versus

TEE STATE and another‑‑‑Respondents

Criminal Revision Application No.42 of 2002, decided on 19th March, (a) National Accountability Bureau Ordinance (XVHI of 1999)‑‑‑‑‑‑‑Ss. 3, 9 & 10‑‑‑Protection of Economic Reforms Act (XII of 1992), Ss.3 & 5‑‑‑Public Debt Act (XVIII of 1944), S.28‑‑‑Foreign Exchange Bearer Certificates Rules, 1985, Rr.4 & 11‑‑‑Foreign Exchange Regulation Act (VII of 1947), Preamble‑‑‑Income Tax Ordinance (XXXI of 1979), Ss. 13 & 14 & Second Sched. Part IV‑‑‑Wealth Tax Act (XV of 1963), S.5 & Second Sched. Part I‑‑‑Criminal Procedure Code (V of 1898), Ss.265‑K & 439‑‑Corruption and corrupt practices‑‑‑Prosecution had been launched against the accused under Ss.9 & 10 of the National Accountability Bureau Ordinance, 1999 for accumulating properties by him, disproportionate to his known sources of income which came within the purview of "corruption and corrupt practices" as defined in S.9 of the said Ordinance‑‑‑Application from accused under S.265‑K, Cr.P.C. claiming immunity under S.5, Protection of Economic Reforms Act, 1992 and Foreign Exchange Bearer Certificates Rules, 1985, R.4‑‑‑Validity‑‑‑Provisions of Ss.3 & 5 of Protection of Economic Reforms Act, 1992 and R.4 of the Foreign Exchange Bearer Certificates Rules, 1985 do not provide complete protection and immunity from the operation of National Accountability Bureau Ordinance, 1999‑‑Principles‑‑‑Provisions contained in National Accountability Bureau Ordinance, 1999 override any provision to the contrary and the provisions of the said Ordinance shall prevail over all other provisions of law for the time being in force on the 16th November, 1999 when the said Ordinance was promulgated‑‑‑Order of Trial Court dismissing the application of the accused under &.265‑K, Cr.P.C. not suffering from any illegality,, irregularity causing miscarriage of justice or any other infirmity, did not warrant interference by High Court in revision.

The provisions of sections 3, and 5 of Protection of Economic Reforms Act, 1992 and Foreign Exchange Bearer Certificates Rules, 1985 do not provide complete protection and immunity from the operation of NAB Ordinance, 1999. Foreign Exchange Bearer Certificates Rules, 1985, framed' by‑the Federal Government, under section 28 of the Public Debt Act, 1944, have limited application. They merely deal with the matters pertaining to the issuance of FEBC, the manner and mode of purchasing the Foreign Exchange Bearer Certificates, encashment of the said certificates, the amount which shall be payable on encashment, the currency in which the encashmcnt shall be made the limit, on purchase, possession, import or export of the certificates. .In addition to these matters certain protections have been provided for the specific purposes and in respect of the authorities stated in the rules. Rule 4 provides that certificatemay be purchased by foreigners and. Pakistanis without limit, against payment in Foreign Exchange from any office of issue. In this rule it is further provided that no questionasball be asked regarding source‑ of funds. It is established principle of the interpretation of statutes that the words, expressions and the provisions take complexion and colour with reference to the context in which they are used and the matters with which the particular provisions deal. Thus, the provisions in rule 4., that no question shall be asked regarding source of fiends, pertains to the office of issue of the Foreign Exchange Bearer Certificates Rules.. It means that wherever, any person purchases any Foreign Exchange Bearer Certificates from any office of issue such office of issue shall not question the purchaser regarding the source of funds. Certain other protections are also contained in the rules. Under rule 11, the profit earned on these certificates is not liable to income‑tax or compulsory deduction of Zakat in Pakistan nor is to be taken into account for the purpose of determining rate of income‑tax on total income. It is further provided in rule 13 that where any certificates are encashed in Pakistan rupees, the office of issue concerned will give the holder a certificate in the form as prescribed in the rules and in case any amount is covered by such certificate no question will be asked by Taxation. Authorities regarding source of funds. Thus; it is abundantly clear that under the Foreign Exchange Bearer Certificates Rules, the profit earned on such certificates enjoys immunity from payment of income‑tax and compulsory deduction of Zakat. Moreover, it is not to be taken into account for determining the rate of tax on total income. If certificates are encashed in Pakistani rupees and the encashment certificate is issued then to the extent of amount in Pakistani rupees by conversion of Foreign Exchange Bearer Certificates, the taxation authorities shall not ask any question regarding source of funds. The effect of this protection is that in case of an amount representing encashment certificate it shall enjoy immunity from being subjected to tax under section 13 of the Income Tax Ordinance, as income from undisclosed sources. In the present case the applicant is not in possession of encashment certificate in spite of certain protections to the holders of Foreign Exchange Bearer Certificates from the probe and inquiry by the taxation authorities and immunity from levy of tax on the profit earned on these certificates it was cwt found sufficient by the Legislature to provide complete protection from levy of income‑tax and wealth tax, with the result that specific provisions have been made in Part IV of the Second Schedule to the Income Tax Ordinance, 1979, under the caption "exemption from specific provisions". The Second Schedule of the Income Tax Ordinance, is in pursuance of section 14 of the Income Tax Ordinance, 1979 and it is provided in Part IV of the Second Schedule, that the income or classes of income, persons or classes of persons enumerated therein shall be exempted from the operation of such provisions of the Ordinance, subject to such conditions and to the extent as are specified thereunder. Clause VI was inserted in Part IV by Notification No.S.R.O. 654(1)/85, July 1st, 1985 with the framing of Foreign Exchange Bearer Certificates Rules.

Clause (6‑D) was inserted in the year 1998 vide Notification S.R.O. 516(1)/98, dated June 5th, 1998. It was substituted by another Notification S.R.O. 871(1)/98, dated August 5th, 1998.

Likewise in Part 1 of Second Schedule to the Wealth Tax Act, 1963, under section 5 of the said Act, a specific provision was made to the effect that wealth tax shall not be payable by an assessee in respect of the assets in the form of Foreign Exchange Bearer Certificates, issued under the Foreign Exchange Bearer Certificates Rules, 1985.

The above provisions made by the Legislature are indicative of the fact that mere provision in rule 4 of the Foreign Exchange Bearer Certificates Rules, 1985, to the effect that the office of issue shall not ask any question regarding source of funds or that the amount covered by encashment Certificate held on conversion of FEBC into Pakistani rupees shall be immune from questioning by Taxation Authorities regarding source of funds, were not found sufficient per se to provide complete protection/immunity even from applicability of special provisions contained in the Income Tax Ordinance, 1979 and the Wealth Tax Act, 1963. Thus, the question of enjoying any protection in respect of criminal prosecution under the NAB Ordinance with referee to Foreign Exchange Bearer Certificates Rules, does not arise. The~liability to pay income‑tax and wealth tax is primarily a liability of civil‑nature and when the.Foreign Exchange Bearer Certificates Rules, 1985 were not found sufficient by the Legislature itself to provide complete immunity from the civil liabilities, the question of enjoying complete immunity/protection from a criminal liability does not arise at all.

The Foreign Exchange Bearer Certificates Rules, 1985 have been framed by the Federal Government under section 28 of the Public Debt Act, 1944. Thus, it is in the nature of subordinate legislation in exercise of delegated authority. Any subordinate legislation in pursuance of delegated authority shall be confined to the purposes for which the authority is delegated by the Legislature and for the purpose of the Act under which the delegated authority is exercised. It is provided in section 28 of the Public Debt Act, 1944, that the Government may make rules to carry out the purposes of the said Act. The purpose of enacting the Public Debt Act, 1944, is given in the Act itself, which is to consolidate and amend the law relating to Government securities and the management of the Public Debt. The rules' framed under section 28 shall always be confuted to the purposes of the Act and shall not extend to anything not covered under the purposes of the Public Debt Act, 1944. This is the reason for which the protections deemed necessary from the levy of taxes, were enacted in the Income Tax Ordinance, 1979 and Wealth Tax Act, 1963.

Any provision contained in subordinate legislation shall not override the provisions contained ‑in the main Act/Ordinance enacted by the Legislature itself. If there is any conflict in the rules framed under delegated legislation and the statute enacted by the Legislature itself, then the subordinate legislation has to give way to the statute law. Although there is no provision in the F.E.B.C. Rules, 1985 to the effect that it will override any other law, but even if there would have been any such provision it would not have the effect of overriding the provisions contained in the NAB Ordinance, 1999.

Subsection (1) of section 5 of this Act, provides that all citizens of Pakistan resident in Pakistan or outside Pakistan who hold foreign currency accounts in Pakistan, and all other persons who hold such accounts, shall continue to enjoy immunity against any enquiry from the Income Tax Department or any other,Taxation Authority as to the source of financing of the Foreign Currency Accounts. This provision provides protection to the holder of Foreign Currency Accounts in Pakistan.

The evidence in the present case does not show that the accused was holding any Foreign Currency Accounts in Pakistan and, therefore, the provisions contained in subsection (1) of section 5 of the Protection of Economic Reforms Act, 1992, which provides immunity to the Foreign Currency Accounts is not attracted to the Foreign Exchange Bearer Certificates held by the applicant. Moreover, subsection (1) of section 5 of the Protection of Economic Reforms Act, merely provides that the holder of Foreign Currency Accounts, shall continue to enjoy immunity against any inquiry from Income‑tax Department or any other Taxation Authority as to the source of financing of the Foreign Currency Account. The law itself specifically provides that the immunity to the Foreign Currency Accounts was available from Income Tax Department or any other taxation authority but does not provide immunity from prosecution for a criminal offence under any law including NAB Ordinance, 1999. In subsection (2) of section 5, it is provided that the balances in the Foreign Currency Accounts and income therefrom shall continue to remain exempted from the levy of wealth tax and income‑tax and compulsory deduction of Zakat at source. Subsection (3) provides that the banks shall maintain complete secrecy in respect of transaction in the Foreign Currency Account. The immunity available' in section 5 of the Protection of Economic Reforms Act, 1992, is not available from the applicability or operation of the provisions contained in the.NAB Ordinance, 1999.

In the present case, no proceedings have been initiated by any taxation authority but by the authorities under the NAB Ordinance, 1999, in respect of a criminal liability.

Although the immunity available under section 5 of the Protection of Economic Reforms Act, 1992, is not available to the applicant in the present case, the contention that there is overriding provision in section 3 of the Protection of Economic Reforms Act, 1992, is not available to the applicant in the present case, the contention that there is overriding provision in section 3 of the Protection of Economic Reforms Act, 1992, looses its significance. It is provided in section 3 of the Protection of Economic Reforms Act, 1992, that the provisions of said Act shall take effect notwithstanding anything contained in the Foreign Exchange Regulation Act, 1947, the Customs Act, 1969, the Income tax Ordinance, 1979 or any other law for the time being in force. This overriding provision shall become operative if there is any conflict in the provisions contained in the Protection of Economic Reforms Act, and the provisions contained in the laws enumerated in section 3 or any other law for the time being in force. Nothing has been shown to us pointing out any conflict in the provisions contained in the Protection of Economic Reforms Act, 1992 and the provisions in the NAB Ordinance, 1999. [p. 392] H

Immunity provided in section 5 of the Limitation Act, is not extended to the criminal prosecution under the NAB Ordinance, 1999. Section 4 gives freedom to all citizens of Pakistan resident in Pakistan or outside Pakistan and all other persons to bring, hold, sell, transfer and take out foreign exchange within or out of Pakistan in any form and shall not be required to make a foreign currency declaration at any stage nor shall any one be questioned in regard to the same. In the present case, the prosecution has not questioned the right of applicant to bring foreign exchange within Pakistan or to take away the foreign exchange out of Pakistan and no prosecution has been launched for non‑declaration of any foreign currency at any stage. In the present case, the prosecution has been launched under sections 9 and 10 of the NAB Ordinance, for accumulating properties by the accused disproportionate to his known sources of income which comes within the purview of corruption and corrupt practices as defined in section 9 of the NAB Ordinance, 1999. Even if it is assumed for the sake of argument that there is any conflict in the provisions contained in the Protection of Economic Reforms Act, 1992 and Foreign Exchange Bearer Certificates Rules, 1985, on one hand and the provisions contained in the NAB Ordinance, 1999 on the other hand, the provisions contained in the NAB Ordinance, 1999 shall override the provisions contained in the earlier laws. The reason being that, it is provided in section 3 of the NAB Ordinance, that the provisions of the said Ordinance, shall have effect notwithstanding anything contained in any other law for the time being in force. Thus, there are non obstante clauses in both the enactments. When there are non obstante clauses in two Acts, the later shall prevail.

The Protection of Economic Reforms Act, 1992, was enacted in the year 1992 and the NAB Ordinance, under which the applicant in the present case is being prosecuted has been promulgated in the year 1999.

The provisions contained in the NAB Ordinance, 1999 shall override any provision to the contrary and the provisions of the NAB Ordinance, shall prevail over all other provisions of law in force on the 16th November, 1999, when the NAB Ordinance, was promulgated.

Order of the trial Court dismissing the application of the accused under section 265‑K, Cr.P.C. did not suffer from any illegality, irregularity causing miscarriage of justice or any other infirmity warranting interference by High Court.

H.C:A. No.281 of 2000 and Messrs Elahi Cotton Mills Ltd. v. Federation of Pakistan 1997 PTD 1555 ref.

Hudabiya Engineering (Pvt.) Ltd. v. Pakistan PLD 1998 Lab. 90 distinguished.

(b) Interpretation of statutes‑‑‑‑‑‑ Meaning of words used in statute=‑‑Words, expressions and provisions take complexion and colour with reference to the context in which they are used and the matters with which the particular provisions deal.

(c) Interpretation of statutes‑‑‑‑‑‑ Subordinate legislation‑‑‑Provisions contained in subordinate legislation shall not override the provisions contained in the main Act/Ordinance enacted by the Legislature itself.

(d) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑‑‑‑‑Preamble‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Immunity provided in S.5, Limitation Act, 1908 is not extended to the criminal prosecution under the National Accountability Bureau Ordinance, 1999.

(e) Interpretation of statutes‑‑‑‑‑‑ Non obstante clauses in two Acts‑‑‑Applicability‑‑‑Latter would prevail.

Muhammad Yousaf Leghari for Petitioner. Anwar Tariq for Respondents.

Date of hearing: 19th March, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 395 #

P L D 2002 Karachi 395

Before Muhammad Roshan Essani and sMuhammad Mujeebutlah Siddiqui, JJ

SIKANDAR‑‑‑Petitioner

Versus

CIT GROUP/CAPITAL EQUIPMENT FINANCING INC.‑‑‑Respondent

Admiralty Appeals Nos. 2 and 3 of 1999, decided on 13th March, 2002.

(a)Merchant Shipping Act (XXI or 1923)‑‑‑‑‑‑‑Ss. 42, 43, 44, 46, 47 & 28‑‑‑Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980), S.7‑‑‑Discharge of seaman‑‑‑Payment of wages‑‑‑

Entitlement and period of, limitation for payment-‑‑Agreement of Seaman with vessel‑‑‑Effect‑‑‑Seaman was entitled to claim wages up to the date of termination of his services only‑‑‑Vessel having been sold under the orders of the High Court, it was incumbent on the seaman to sign off the Articles of the Agreement so as to bring a terminus quo, determining his services with the vessel, which was sold, until and unless the new owner employed him, and getting himself free for employment with any other vessel‑‑Principles.

A seaman is entitled to claim wages up to the date of termination of his services only. Contention that the ship was arrested on 6‑10‑1995 in pursuance of order‑ dated 5‑10‑1995 by High Court, therefore, from the said date, the seaman should be deemed to have been discharged was not in consonance with the provisions contained in sections 42, 43, 44, 46 and 47 of the Merchant Shipping Act, 1923. Services of the seaman shall be terminated and he shall be discharged in accordance with the provisions c..ontained in sections 42, 43, 44, 46 and 47 of the Merchant Shipping Act, 1923. Services of seaman shall be terminated with the signing off, from the Articles of Agreement. The question of signing of the Articles of Agreement, cannot be left at the will of the seaman as such uncontrolled discretion shall lead to a manipulation and exploitation. There~should be some nexus between the date of a seaman's actual period of service on board the vessel ends and his final discharge from service at the port of engagement upon signing off of Agreement, wages claimed and the services rendered. If for performing certain acts no period is prescribed in law then looking to the facts and circumstances, the Court can prescribe a reasonable period for performance of the act. The sole purpose of law is to maintain discipline and to deliver justice to all the parties detre of prescribing period of limitation for performance of an act is that finality should be attached to the transaction and the act required to be done should be performed within the specified period.. If no period is provided by the Legislature then the Court can prescribe a reasonable period for the purpose of such acts. The law is a living organism and is required to be updated according to the needs of the time. However, if amendment is not made in the laws in accordance with the needs and requirements of the changing times, the superior Courts shall always be supposed to prescribe the conditions lacking in the law, keeping in view the purpose and intent of the Legislature, provided always, it does not contravene any specific provision of law and is without doing any violence to the patent or latent intention and purpose of the law and is only meant to promote the ends of justice and is in furtherance of .the purpose of law. Doing so, would not amount to resorting to a legislative act but it would only mean the fulfillment of the purpose and intent of the legislation The provisions in the Merchant Navy Laws, regarding signing on and signing off from Articles of Agreement at the shipping office were introduced because of unfair exploitative practices that prevailed in the engagement of seaman in the early 20th Century in England. The protection given to the seaman should not result in counter‑exploitation on his part and, therefore, a balance is to be struck which will serve the purpose of introducing the provisions of signing on and signing off in the Merchant Shipping Act, 1923. In the present case, the Seaman admittedly had no concern with the vessel after it was sold under the Court's Order and thus it was incumbent on the seaman to sign off the Articles of Agreement so as to bring a terminus a quo, determining his services with the vessel, which was sold, until and unless the new owner employed him, and getting himself free, for employment with any other vessel.

(b) Limitation‑‑‑‑‑‑‑ No period prescribed for performing certain acts‑‑‑Duty of Court.

If for performing certain acts no period is prescribed in law then looking to the facts and circumstances, the Court can prescribe a reasonable period for performance of the act. The sole purpose of law is to maintain discipline and to deliver justice to all the parties concerned The raison d'etre of prescribing period of limitation for performance of an act is that finality should be attached to the transaction and the act required to be done should be performed within the specified period. If no period is provided by the Legislature then the Court can prescribe a reasonable period for the purpose of such acts.

(c) Interpretation of statutes‑‑‑‑‑‑ Amendment not made in law in accordance with the needs and requirements of the changing times‑‑‑Duty of Court.

If amendment is not made in the laws in accordance with the needs and requirements of the changing times, the sltperior Courts shall always be supposed to prescribe the conditions lacking in the law, keeping in view the purpose and intent of the Legislature, provided always, it does not contravene any specific provision of law and is without doing any violence to the patent or latent intention and purpose of the law and is only meant to promote the ends of justice and is in furtherance of the purpose of law. Doing so, would not amount to resorting to a legislative act but it would only mean the fulfilment of the ur e n intent of the legislation.

Aga Faquir Muhatm

Muhammad Arif Khan for Respondent.

D to of hearing: 7th November, 2000.

PLD 2002 KARACHI HIGH COURT SINDH 402 #

P L D 2002 Karachi 402

Before Wahid Bux Brohi, J

SHAHZADO‑‑‑Applicant

versus

THE STATE‑‑Respondent

Criminal Bail Application No.206 of 2002, decided on 12th April, 2002.

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

‑‑‑‑S. 497(2)‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(3) & 20‑‑‑Bail, grant of‑‑‑Even if the offence did not fall within definition of "Haraabah" liable to Hadd owing to less number of independent witnesses, yet the facts of the case would constitute an offence of "Haraabah" liable to Tazir punishable under different provisions of Penal Code, 1860 as contemplated under S.20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979‑‑‑Two versions were given by both the material witnesses‑‑‑Complainant had nominated two persons in F.I.R. but in his further statement he had exonerated one of them and had implicated accused and two other persons‑‑‑Neither name of accused nor his features were described in F.I.R. which was lodged with a delay of more than 17 hours‑‑‑No source of information was disclosed in further statement about identity of accused‑‑‑Nothing was on record to show that property was duly identified before Magistrate or that accused had knowledge that same was robbed property‑‑‑Such fact was yet to be thrashed out at trial‑‑‑Case of bail having been made out, accused was released on bail.

Muhammad Khan v. State 2001 PCr.LJ 1628; Waris Muhammad v. Haji Ahmad Yar 1976 SCMR 182; Muhammad Tariq v. State 2000 PCr.LJ 1840 and Meeral Gopang v. State 2001 PCr.LJ 1403 ref.

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

‑‑‑‑Ss. 154, 161 & 497(2)‑‑‑Supplementary statement of complainant‑‑Object of‑‑‑No restriction to record further statement of complainant; it could neither be treated as F.I.R. nor part of it‑‑‑Object of further statement was to enable complainant to clarify facts which required some explanation, but if complexion of case was changed as regard identity of culprits, then onus would be on prosecution to cast away the same at trial‑‑‑Court, for purpose of bail, would be persuaded to draw reasonable inference that guilt of person involved on basis of further statement without rational explanation, would call for further inquiry.

Saeed Muhammad Shah v. State 1993 SCMR 550 and Falak Sher v. State 1995 SCMR 1350 ref.

Muhammad Ayaz Soomro for Applicant.

Muhammad Bachal Tonyo, Addl. A.‑G. for the State.

Date of hearing: 12th April, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 405 #

P L D 2002 Karachi 405

Before Wahid Bur Brohi, J

MUHAMMAD ASIF‑‑‑Petitioner

versus

CONTROLLER OF BUILDINGS, K.B.C.A., KARACHI‑‑‑Respondent

Suit No. 1158 of 1996 and Civil Miscellaneous Applications Nos.6001 and 6002 of 2001, decided on 18th January, 2002.

(a) Sindh Buildings Control Ordinance (V of 1979)‑‑‑

‑‑‑‑S. 19‑‑‑Karachi Building and Town Planning Regulations, 1979, Regln.16‑‑‑Criminal liability under S.19 of the Sindh Building Control Ordinance, 1979 and civil liability under the Karachi Building and Town Planning Regulations, 1979 to rectify irregularity/breach‑‑‑Distinction‑‑Civil and criminal liabilities were altogether different and all action in respect of each would be a separate action to be taken under the procedure provided under the relevant law‑‑‑If a penal action was taken, that would not preclude the Authority or Court from taking any action related to liability.

(b) Sindh Buildings Control Ordinance (V of 1979)‑‑‑

‑‑‑‑Ss. 7‑A & 19‑‑‑Karachi Building and Town Planning Regulations, 1979, Regln.16‑‑‑Action for violation of building plan‑‑‑Compounding of offence under S.19(1‑A) of the Sindh Buildings Control Ordinance, 1979‑‑‑Effect‑‑Order of the Court to demolish unauthorized construction of the project in excess of approval‑‑‑Authority did not make practical efforts for its demolition, though assistance of police and civil administration was allowed to them‑‑‑Contention was that Government was likely to regularize the building‑‑‑Validity‑‑‑Section 19(1‑A) of the Ordinance did authorise the authority to compound an offence‑‑‑Compounding of offence would simply relieve the delinquent of criminal liability and absolve him of the penalty provided under S.19 of the Ordinance, but that would not ipso facto debar the Authority from taking action for violation of building plan under S.7‑A of the Ordinance‑‑‑Action purportedly taken under S.7‑A of the Ordinance possessed legal sanctity, if the same was taken within four corners of law and guidelines laid down by superior Courts‑‑‑Said order of the Court was by all means to be implemented by all concerned‑‑‑High Court directed the Official Assignee to take necessary steps by associating with him the officers concerned on administrative side and submit report within specified time.

Abdul Razak v. KBCA PLD 1994 SC 512, Ardeshir Cowasjee v. KBCA 1999 SCMR 2883 and Muhammad Saleem v. Administrator, KMC 2000 SCMR 1748 ref.

Naim‑ur‑Rahman for the Intervenor.

Latifur Rahman Sarwari for the KBCA.

Nazir Ahmed Khushik holding brief for Kh. Sharful Islam for the Intervenor.

Ch. Muhammad Rafiq, Addl. A.‑G.

PLD 2002 KARACHI HIGH COURT SINDH 408 #

P L D 2002 Karachi 408

Before S.A. Rabbani, J

SHAHEEM NASIR KHAN‑‑‑Applicant

versus

Mst. ASMAT ARA and 6 others‑‑‑Respondents

Civil Revision Application No. 194 of 1997, decided on 19th April, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R.11‑‑‑Plaint, rejection of‑‑‑Cause of action‑‑‑Terms "Plaintiff having no cause of action" and "plaint disclosing no cause of action" distinction‑‑‑Plaint, in the present case, mentioned that there was a dispute between the parties about ownership of suit land‑‑‑Defendant filed application for rejection of plaint on the ground that the plaintiff had no cause of action‑‑‑Trial Court dismissed the application‑‑‑Validity‑‑‑Plaintiff having no cause of action was something different from the plaint disclosing no cause of action‑‑‑Plaint having cause of action or not could only be determined on the basis of evidence‑‑‑Plaint could be rejected under O. VII, R.11, C.P.C. only if the same did not disclose a cause of action‑‑‑Trial Court had rightly declined to reject the plaint and there was no illegality or material irregularity in the order‑‑‑Revision was dismissed in circumstances.

Ajeebullah for Applicant.

Qazi Khalid Ali for Respondents Nos. l and 2.

Date of hearing: 15th April, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 410 #

P L D 2002 Karachi 410

Before Wahid Bux Brohi, J

GHULAM FAREED NINDWANI‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 124 of 2002, decided on 19th April. 2002

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.324‑‑‑Bail, grant of‑‑Inordinate delay of 20 days in lodging F.I.R. had gone totally unexplained though accused was known to the complainant party‑‑‑Nothing on record to shorn, whether inured was referred to Medical Officer for examination or treatment‑‑‑Guilt of accused in circumstances required further enquiry‑‑Accused had remained in custody for a period of one year and seven months‑‑‑Accused was admitted to bail in circumstances.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

PLD 2002 KARACHI HIGH COURT SINDH 411 #

P L D 2002 Karachi 411

Before Muhammad Afzal Soomro, J

GHAZI OGAHl ‑‑‑ Applicant

versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.3 of 2002, decided on 15th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 540, 439 & 435‑‑‑Penal Code (XLV of 1860), S.302/34‑‑Summoning and examining material witnesses‑‑‑Witnesses who were Police Officials, appeared to be material witnesses as their presence was natural and beyond any reasonable doubt and they had sustained injuries during course of scuffle‑‑‑Purpose and import of S.540, Cr.P.C. was that Court should examine any person who had any knowledge about case. and controversy therein so as to bring on record all relevant and material facts and to do complete justice after taking into consideration all aspects of case‑‑‑Police Officials were not only examined under S.161, Cr.P.C. but were also referred to hospital for treatment‑‑‑Such police officials were persons who had knowledge of material facts about incident and their examination/evidence would be helpful in bringing relevant material on record for consideration and adjudication and to do complete justice in the case‑‑‑Said witnesses being necessary to be called/summoned as Court witnesses in the case, Trial Court was right in calling them to be examined for purpose of recording their evidence‑‑‑No illegality or irregularity existed in the order passed by Trial Court.

Athar Abbas Solangi for Applicant.

Muhammad Ayaz Soomro for Respondent.

Mushtaq Ahmed Korejo for the State.

PLD 2002 KARACHI HIGH COURT SINDH 414 #

P L D 2002 Karachi 414

Before Saiyed Saeed Ashhad, C.J. and Mushir Adam, J

M. WAHIDULLAH ANSARI through Legal Heirs‑‑‑Appellant

versus

ZUBEDA SHARIF an another‑‑‑Respondents

High Court Appeal No. 364 of 1998, decided on 6th December, 2001.

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

‑‑‑‑S. 54‑‑‑Statutory arbitration‑‑‑Referring a dispute to arbitration under S.54 of the Cooperative Societies Act, 1925‑‑‑Principles‑‑‑Not each and every nature of dispute between the persons specified under S.54 of the Cooperative Societies Act, 1925, is referable to the statutory arbitration‑‑Dispute must be "a dispute touching the business of the society" the business which a particular society does, is to be ascertained with reference to the object of society, as may be specified in its Bye‑laws.

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

‑‑‑‑S. 54‑‑‑Word 'touching' used as a prefix to the words 'the business'‑‑Connotation‑‑‑Word 'touching" includes any matter which relates to concerns or affects the business of the Society‑‑‑Controversy referred to arbitration under S.54 of the Cooperative Societies Act, 1925, must have nexus with the business of the Society and be one relatable to the object of the Society.

‑‑‑‑S. 70‑A & 54‑‑‑Bar of jurisdiction of Civil Court‑‑‑Scope‑‑‑Jurisdiction of Civil Court and other Authority is ousted under S.70‑A of the Cooperative Societies Act, 1925, only in cases where such statutory functionaries have jurisdiction to entertain, adjudicate, dispose of or determine any matter, under the Cooperative Societies Act, 1925 and Rules or Bye‑laws framed thereunder‑‑‑Principles.

(d) Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑Ss. 54 & 70‑A‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑Appeal against interim order‑‑‑Reference to arbitrator‑‑‑Dispute touching business of Cooperative Society‑‑‑ ‑Parties were partners of a dissolved firm which had formed the disputed Housing Society ‑‑‑Plaintiff claimed title of the suit property pursuant to settlement between the partners of a dissolved firm‑‑Contention of the appellants was that the plaint was wrongly rejected by Single Judge of High Court and the matter could not be referred to the arbitrator under the provisions of S.54 of the Cooperative Societies Act, 1925‑‑‑Validity‑‑‑Such dispute between the partners inter se who were members of the Society was not a dispute touching the business of the Society, therefore, such controversy could not be referred to statutory arbitration under S.54 of the Cooperative Societies Act, 1925‑‑‑Matter arising out of contractual obligation between members inter se viz. claim of Benami transaction, agreement to sell or any other contractual dispute between the members, past members or persons claiming through such members, inter se seeking performance of legal and contractual obligation thereunder against the other and such disputes having no nexus with business of the society, then such disputes and controversies could neither be referred to arbitration under S.54 of the Cooperative Societies Act, 1925, nor could be adjudicated by the statutory functionaries set out in S.70‑A of the Cooperative Societies Act, 1925‑‑‑Not every dispute between the persons mentioned in S.54 of the Cooperative Societies Act, 1925, could qualify to be a dispute touching the business of the society, merely because the subject property of the suit was managed and controlled by the Society‑‑‑Involvement of such property simpliciter would not make a private dispute between two parties inter se a dispute touching a business of Society‑‑‑Nature of dispute inter se between the parties in the present case was neither the one touching the business of the society nor was the one referable to be statutory functionaries mentioned in S.70‑A of the Cooperative Societies Act, 1925, therefore, the bar of jurisdiction was not attracted‑‑‑Order was set aside and High Court allowed appeal in circumstances.

PLD 1970 Kar. 200; 1984 CLC 2914; PLD 1995 Kar. 399; Hussainali, J. Merchant v. The Ismailia Garden Cooperative Housing Society and another H. C. A. No. 140 of 1997; Muhammad Azim v. P. E. C. H. Society Ltd. PLD 1985 Kar. 481 and Lahore Cantt. Cooperative Society v. Muhammad Asif 1998 MLD 1850 ref.

A.R. Akhtar for Petitioner.

S. Azizul Hasan for Respondent No. 1.

Muhammad Ali Jan for Respondent. No.2.

PLD 2002 KARACHI HIGH COURT SINDH 420 #

P L D 2002 Karachi 420

Before Saiyed Saeed Ashhad, C. J. and Mushir Alam, J

ITEHAD CARGO SERVICES, NATIONAL HOTEL, LAHORE through Managing Partner and 2 others‑‑‑Appellants

versus

Rana RAFAQAT ALI and 3 others‑‑‑Respondents

High Court Appeal No.224 of 2001, decided on 6th December, 2001

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

‑‑‑‑S. 20‑‑‑Territorial jurisdiction‑‑‑Two Courts having jurisdiction over the matter‑‑‑Cause of action, accrual of‑‑‑Parties were business partners with principal office at place 'L' and branch office at place 'K'‑‑‑Agreement of partnership between the parties was executed at place 'L'‑‑‑Some differences arose between the parties regarding the business at branch office‑‑‑Plaintiff filed the suit at place 'K'‑‑‑Defendant raised the plea that the principal office, place of execution of contract and the residence of the defendant were at place 'L', therefore, the Courts at place 'K' did not have jurisdiction over the matter‑‑‑Validity‑‑‑Once the party to a contract irrespective of location of principal office, was able to successfully demonstrate that the cause of action accrued at a place other than the principal office or at a place other than where contract was originally executed then the place at which breach had occurred or at a place where a party suffered some injury on account of some act of omission or‑commission relatable to the contract inter se, then the cause of action would be considered to have accrued at such place and the Court at that place would have jurisdiction‑‑‑Since cause of action complained had accrued at place 'K', the same would give jurisdiction to the Courts at place 'K'‑‑‑Where two Courts might have jurisdiction in respect of the same claim, it was the prerogative of the plaintiff to choose the place of suing‑‑‑Suit was rightly instituted in circumstances.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 34‑‑‑Arbitration clause in agreement‑‑‑Stay of proceedings by Civil Court‑‑‑Procedure‑‑‑Bar to jurisdiction of Civil Court‑‑‑Validity‑‑‑Mere existence of arbitration clause in the agreement between the parties does not bar the jurisdiction of the Civil Court‑‑‑Such clause only provides that where a party to an agreement commences any legal proceeding against another party to the agreement, then such a party before filing a written statement or taking any other step in the proceedings tray apply to the Court, before which the proceeding is pending to stay the proceeding and the Court may stay if it is satisfied, that there are sufficient reasons for referring the matter to arbitration, stay the proceedings, under S.34 of Arbitration Act, 1940‑‑Civil Court does not act suo motu‑‑‑Party seeking stay of the proceedings has to apply through a proper application to the Court where the proceedings have been initiated‑‑‑Merely taking a defence in a written statement or in a counter‑affidavit to any interlocutory application does not fulfil the requirement of S.34 of the Arbitration Act, 1940, and the Court on its own cannot refer the matter to the arbitrator simply because the agreement so provides.

Messrs Universal Business Equipment (Pvt.) Limited v. Messrs Kokusai Commerce Inc. and others 1995 MLD 384; Messrs. Johnson and Phillips (Pakistan) Ltd. through Chief Executive v. Sahibzada Muhammad Ayaz and another 1997 CLC 1177 and Muhammad Younas and another v. Muhammad Sjddique and another 1998 CLC 1238 ref.

‑‑‑‑S. 17‑‑‑Award not made rule of Court‑‑‑Effect‑‑‑Dispute between the parties was subjected to arbitrator but no efforts were made by either of the parties to make the, award rule of the Court‑‑‑Plaintiff instituted the suit and Judge in Chambers of High Court issued interim injunction in favour of the plaintiff‑‑‑Validity‑‑‑Mere making of an award simpliciter was of no value and did not create, extinguish or pass any right, title or interest and no party, could be prejudiced by mere existence of the award‑‑‑Award could only become effective when it was made rule of the Court‑‑‑Till the decree was passed the award had no status in the eyes of law.

Durga Das alias Durga Parsad v. Jai Narian and others Civil Revision No.70 of 1918; Niranjan Singh and others v. Kundan Singh and others First Appeal from Order No.5 of 1919; Gordhandas Kaliadas v. Dowlatram Kanayalal AIR 1926 Sindh 238; Nihal Chand and another v. Jai Ram Das AIR 1931 Lah. 673; Muhammad Idris v. Rati Ram & Sons and others AIR 1942 Oudh 250; S. Zafar Ahmed v. Abdul Khaliq PLD 1964 W.P.) Kar. 149; Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494; Pakistan State Oil Company Ltd. v. The Karachi Electric Supply Corporation and 24 others PLD 1991 Kar. 365; Mst. Iqbal Begun v. Farooq Inayat and others PLD 1993 Lah. 183; Muhammad Farooq v. Province of Punjab through Secretary, Industries and Mineral Development Department and others PLD 1993 Lah. 56; Ch. Muhammad Siddique and another v. Mst.Walayat Begum and 8 others 1993 MLD 121; Amir Zaman and another v. Abdul Khaliq and 2 others 1993 CLC 1394; Province of Punjab and others v. Messrs Rana & Sons 1996 CLC 69; Mst.Razia Jaffar and others v. Government of Balochistan through the Secretary, Department of Revenue Civil Secretariat, Quetta and others 1998 CLC 1738; Rehmat Ali v. The Additional District Judge, Multan and others 1999 SCMR 900; West Pakistan Industrial Development Corporation M/s. Sheikh Muhammad Amin.& Co. 1992 CLC 2047; Abdul Karim v. Mirza Bashir Ahmed PLD 1974 SC 61; Ram Sahai v. Babu Lal AIR 1965 All. 217; Ch. Muhammad Saleem v. Ch. Muhammad Akram and others PLD 1971 SC 516; Abdul Karim v. Mirza Bashir Ahmad PLD 1967 Lah. 365. and Rai Batey Khan and another v. Raja 1991 MLD 587 ref.

Hamid Ali Shah for Applicant

Nawab Mirza for Respondents

Date of hearing: 11th September, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 427 #

P L D 2002 Karachi 427

Before Zia Perwez, J

Maj. (Retd.) HUMAYUN AKHTAR‑‑‑Plaintiff

versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY‑‑‑Defendant

Suit No. 1277 of 2000 and Civil Miscellaneous, Applications Nos.2507 and 2984 of 2001, decided on 7th January, 2002.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 28‑‑‑Extension of time for making of award‑‑‑ Consent of parties‑‑Joint statement for extension of time duly signed by both the parties was available on the file of the sole Arbitrator‑‑‑Effect‑‑‑Where time was extended by consent of parties, the proceedings before the sole arbitrator were legal and valid.

WAPDA and others v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak & Company PLD 1990 SC 359 ref.

(b) Pleadings‑

‑‑‑‑ Pleadings of parties‑‑‑Dispute is to be decided on the basis of the pleadings of the parties.

Thola Chenna Kesavulu and another v. Thola Veeraswami and others AIR 1933 Madh. Pra. 862 ref.

‑‑‑‑S. 30(c)‑‑‑Production of evidence‑‑‑Parties were bound to produce evidence before arbitrator.

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss‑ 2(b), 17 & 30‑‑‑Civil Procedure Code (V of 1908), S.2(2)‑‑‑Award by sole arbitrator‑‑‑Objection to the award was raised on the ground that the arbitrator had used the word "decree" in the award‑‑‑Validity‑‑‑Award given by the sole arbitrator was not a decree of the Court within the meaning of S.2(2), C.P.C.‑‑‑Award fell within the meaning of S.2(b) of the Arbitration. Act, 1940, and had to be construed as such‑‑‑Sole arbitrator having filed the award for making the same rule of the Court, decree of Court as delivered under S.2(2), C.P.C. would only follow after the award was made rule of the Court‑‑‑Mere use of the word "decree", stood for the extent of claim allowed in the award and the same would not render the award illegal.

(e) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 14(2)‑‑‑Filing of award in Court‑‑‑Failure to give notice to parties‑‑Effect‑‑‑Purpose of notice under S.14(2) of the Arbitration Act, 1940, was to enable the parties to file their objections, if any, within the prescribed period of time‑‑‑Where the fact of filing of award by the arbitrator was already in the knowledge of the parties and their counsel, such failure would not render the award illegal.

Ashfaq Ali Qureshi v. Municipal Corporation of Multan 1985 SCMR 597 ref.

(f) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 15, 16 & 17‑‑‑Filing of award in Court‑‑‑Non‑raising of objections by parties‑‑‑Duty of Court‑‑‑Mere absence of objection would not absolve the Court from its responsibility of deciding whether the award was void on the face of it.

(g) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 16‑‑‑Remitting of award ‑‑‑Pre‑conditions‑‑‑Award may be remitted under S.16 of the Arbitration Act, 1940, if the award leaves any of the matter which were referred to arbitration, undetermined; a part of the award is upon a matter which was not referred to arbitration and that part cannot be separated from the remaining part without affecting the decision of the matter which was referred to arbitration‑ the award is so indefinite as to be capable of execution and there is an objection to the legality of the award and such objection is apparent upon the face of it.

(h) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14, 17, 28 & 30‑‑‑Award, setting aside of‑‑‑Objections to award‑‑Duty of Court‑‑‑Extension of time by consent of the parties‑‑‑Matter was referred to the sole arbitrator for settlement of the dispute between the parties‑‑‑After pronouncement of the award by the arbitrator, the same was filed in the Court for making the same as rule of the Court‑‑‑Defendants had ample opportunities to raise the objections pertaining to the issues, time period and evidence during the proceedings before the sole arbitrator, but they actively participated without raising any objection also consented to enlargement of time with the consent of parties‑‑‑After the award was filed in the Court, the defendants raised many objections and contended that the award be set aside‑‑‑Validity‑‑‑Defendants were unable to substantiate any of the objections raised by them so as to constitute the same as an error apparent on the face of the award resulting in misconduct within the meaning of S.30 of the Arbitration Act, 1940‑‑‑Objections to award were not to be heard as an appeal‑‑‑No sufficient cause for not making the award a rule of the Court being available on record, award was made rule of the Court in circumstances.

Sharifuddin v. Mst. Kishwar Jehan 1984 CLC 1133 and Bhagirat Nathu Ram v. Ramnath AIR 1951 Madh. Bha. 111 ref.

Kh. Naveed Ahmed for Plaintiff.

Ch. Jamil Ahmed for Defendants.

Date of hearing: 15th December, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 434 #

P L D 2002 Karachi 434

Before Shabbir Ahmed, J

RIAZ‑UR‑REHMAN KHAN‑‑‑Plaintiff

versus

LUFTHANSA GERMAN AIRLINES, QUAID‑E‑AZAM INTERNATIONAL AIRPORT, KARACHI‑‑‑Defendant

Suit No. (sic) of 2001, heard on 15th May, 2002.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 14‑‑‑Computation of period of limitation prescribed for any suit‑‑Time during which the plaintiff had been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal against the defendant, shall be excluded, where the proceeding was founded upon the same cause of action and was prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, was unable to entertain the same‑‑-Conditions to be satisfied before S.14, could be pressed into service, enumerated.

The reading of section 14, Limitation Act, 1908 suggests that to computing the period of. limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court 'of first instance or in a Court of appeal against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, was unable to entertain it.

The following conditions have to be satisfied before section 14 can be pressed into service:‑‑

(1) Both the present and subsequent proceedings are civil proceedings prosecuted by the same party.

(2) The prior proceedings had been prosecuted with due diligence and in good faith. .

(3) The failure of the prior proceedings was 'due to defect of jurisdiction or other cause of like nature.

(4) The earlier proceedings and the later proceedings must relate to same cause of action; and

(5) Both the proceedings are in a Court.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 14 & 29‑‑‑Carriage by Air (International Convention) Act (IX of 1966), S.3‑‑‑Suit governed by the Carriage by Air (International Convention) Act, 1966 a special law‑‑‑Provision of S.14, Limitation Act, 1908 can be pressed into service by virtue of S.29 of the said Act.

‑‑‑‑S. 14‑‑‑Carriage by Air (International Convention) Act (IX of 1966), S.2‑‑‑Law in Pakistan‑‑‑By enactment of Carriage by Air (International Convention) Act, 1966, the Warsaw Convention (as amended) has got the force of law in Pakistan.

(d) Equity, principles of‑‑

‑‑‑‑ When can be invoked‑‑‑Equity cannot be against what the law speaks in positive terms but when there is room for play, Court can verily rely on equity to put a liberal interpretation to save, otherwise good case from being non‑suited‑‑‑Concept of access to. justice is no doubt well‑recognized right but within the parameters of the law.

(e) Interpretation of statutes‑‑‑

‑‑‑‑Construction of words used in statute‑‑‑Limits‑‑‑All legislations are primarily territorial and a limit must be placed upon the general sense of a word used in a statute with reference to that the statute compels the Court to interpret the word in its wide sense‑‑‑Words of a statute though to be given, their grammatical sense, are to be construed also with reference to the general purpose.

(f) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Preamble & S.14‑‑‑Civil Procedure Code (V of 1908), Preamble, Ss.13 & 10‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.55‑‑.‑Word "Court" as occurring in S.14. Limitation Act, 1908, does not include "foreign Court" ‑‑‑Principles.

Preamble to the Limitation Act, 1908 shows that the "Courts" to which it applies are Courts in Pakistan, not foreign Courts. The word must be read in that restricted sense, or else the absurdity would follow that the Legislature intended to provide a "law relating to the limitation of suits, appeals and certain applications" for Courts outside its jurisdiction. And if that is the restricted meaning of the word as used in the Preamble, the same meaning must be attached to the word where it occurs in the enacting portions of the Act, unless the enactment is itself so clear and unambiguous as to show that the Legislature intended a departure from that meaning in the case of any particular section of the Act. Neither expressly nor by necessary implication has the Legislature made any such purpose apparent in the Limitation Act. The implication is rather the other way. Section 11 of the Act relates to a "suit on foreign contracts"; and Article 117 to Schedule I of the Act provides a period of limitation for a suit upon "a foreign judgment". Whenever, therefore, the Legislature intended anything relating to a foreign State to be brought in, it has provided for it by express language. It is a fair inference from it that had the Legislature intended to include a foreign Court in the word "Court" in section 14, it would have said so.

In this connection, the scheme of the Code of Civil Procedure needs examination with reference to foreign Court, because the Code and the Limitation Act are in pari materia; both are laws of procedure. The Code does not define the word "Court", and that for the obvious reason that it applies primarily to the Courts on whom the Code is binding. But it defines "a foreign Court", "foreign judgment" and wherever it intended that any section of the Code should apply to any judgment or proceeding of that Court, it has said so in distinct terms, as, for instance in section 13. By section 13 of the Code, the judgment of a foreign Court is placed on the same footing as that of a Court to which the Code applies, not in all but only in some cases and for a certain purpose. That judgment is conclusive as to any matter "directly adjudicated upon" but only upon certain conditions, one of which is that it must be a judgment "given on the merits of the case". Where it is not so given, the foreign Court is not recognised by the Code as being on the same footing with Court in Pakistan, to which the Code applies. A judgment of a foreign Court, dismissing a suit on the ground that it has no jurisdiction to try it, is not a judgment on the merits. If a foreign Court, which has dismissed a suit for want of jurisdiction, is not equivalent to a Court to which the Code applies, so far as its judgment dismissing the suit is concerned, it follows that the Legislature did not intend the word "Court" to include a foreign Court in cases to which such judgments relate. .

Again, by section 10 of the Code. it is enacted that no Court shall proceed with the that of any suit, in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, where such suit is pending in the same or any other Court in Pakistan having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Pakistan established or continued by Federal Government and having like jurisdiction or before the Supreme, Court. Then there is, an "explanation" added that "the pendency of a suit in a foreign Court does not preclude the Courts in Pakistan from trying a suit founded on the same cause of action". There was, strictly speaking, no necessity for this explanation,, because the words of the section restrict its scope in plain language to Courts which exclude a foreign Court. Therefore, the fact that it is added as an "explanation" to the. section is important. Had the Legislature intended the word "Court" to mean any Court, whether Pakistani or foreign, it would have called that, a proviso or an exception which it has called an "explanation". The explanation must, therefore, be regarded as having been added ex majore cautela, and it throws lights on the intention of the Legislature that the word "Court" should not include a "foreign Court" unless it has that meaning given to it expressly or by necessary implication in the Code.

Article 55 of Qanun‑e‑Shahadat Order can also be referred which relates to judgment in rem, the judgments of all competent Courts including foreign, in the exercise of probate, matrimonial, admiralty, or insolvency jurisdiction. The word "competent Court" in that section includes a foreign Court, because of the well‑known rule of law that such judgments are of "ubiquitous authority and universally conclusive". This section in the Qanune‑Shahadat Order supports the conclusion that the word "Court" occurring in a statute; excludes a foreign Court, unless by express language or by necessary implication the statute includes it, or some well‑known rule of law warrants the wider sense.

(g) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 14‑‑‑Carriage of Air (International Convention) Act (IX of 1966)‑‑Concept of advancement of remedy and suppression of the mischief‑‑Applicability‑‑‑Party who has been prosecuting a proceeding bona fide in a foreign Court can also take advantage of the benefit of S.14, Limitation Act, 1908 and deduct the period spent in prosecuting the proceeding before such Court when proceedings are subsequently instituted in a proper Court of the. Country‑‑‑ Principles.

A party who has been prosecuting a proceeding bona tide in a foreign Court can also take advantage of the benefit of the section 14 of Limitation Act, and deduct the period spent in prosecuting the proceeding before such Court when the proceedings are subsequently instituted in a proper Court of the Country.

No doubt, the Preamble to the Limitation Act shows that the "Courts" to which it applies are not foreign Courts. It is also true that all legislation are primarily territorial and that the Limitation Act was enacted to be applied by the Courts of the county for which it was made and not by foreign Courts. But that is no reason why the word "Court" should not be given a wider meaning so as to include proceedings in a foreign Court also if the subject or context in which it is used in the section would justify that meaning being given.

Section 14 of the Limitation Act, 1908 contains a general principle which is based on justice, equity and good conscience and it would not be proper to place a narrow construction upon the word "Court" in it. The provision has been made to give relief to honest suitors or applicants who prosecute their suits or application with due diligence in another Court in good faith and then their spits or applications are dismissed simply because the Court is unable to entertain them on account of some defect in its jurisdiction or some other cause of a like nature. If that is so there is 'no reason why time spent bona fide only in municipal Courts by honest suitors should be excluded and why the time spent in foreign Courts should not be excluded. The objection that section 14 would appear to contain extraterritorial law in case the word "Court" appearing therein in its wider sense was repelled by observing that it was not proper to say that simply because the word "Court" was used in the sense of the Courts in the country in the preamble, the same meaning must be attached to the word wherever it occurs in the enacting portions of the Act without looking to the subject context in which it has been sued. It follows, therefore, that the word "Court" need not necessarily be interpreted to mean "Courts" of the country as shown in the Preamble if a different meaning appears from the subject or context in which the word is used.

The peculiarity of the matter in the present case, required dynamic approach by the Court. The cause emanated from the provision of Carriage of Air (Warsaw Convention) Act, 1966 (a special Law). Article 28 of Warsaw Convention provides four fora; (f) the domicile of the carrier; (2) principal place of business of the carrier; (3) the forum in which the carrier has a place of business through which the contract was made; or (4) the place of destination. The same fora have been engrossed in rule 28 of the Schedule of the Act, 1966 and the suit could have been filed (1) in Germany, which is domicile of the defendant carrier, (2) at principal place of business, which might be other than the place of domicile, (3) a place of business through which contract was made which might be in a third country and (4) the destination viz. Karachi. While dealing with such matter under special enactment, which provides different forum, as in the present case, the Courts' approach should be dynamic and it should bear in mind that unless there were some compelling reasons, the party should not be non‑suited simply because the Court of a country lacks jurisdiction and by that time proceedings were instituted in a Court of Pakistan and prohibits the institution of cause. Court could exclude the period spent in the proceedings of the same nature before foreign Court under the "concept of advancement of remedy and suppression of mischief". If the legislation lags, equity will come to the rescue and the Law is to be developed and adopted by the Judge to the needs of the members of his society. Even otherwise "New days may bring the people into new ways of life and give them new outlooks and with this changes, there may come a need for new rules or law.

In the present case, the proceedings before District Court at New York were on the same cause of action and assumption of jurisdiction had been declined on jurisdictional defect. The proceeding was of "civil nature" and on the same cause of action, the plaintiff had also demonstrated that he was prosecuting his remedy with due diligence and bonafidely. The first four ingredients of section 14 of the Limitation Act thus could be said to be present. Under the concept of "advancement of remedy and suppression of the mischief", the benefit of section 14 of the Limitation Act was extendable to the present case on its peculiarity, for exclusion of the period spent by plaintiff in proceedings before District Judge, New York. Thus, benefit was extended t o the plaintiff.

Turning to the question of availability of right to sue or its extinguishments, on exclusion of the period spent by the plaintiff in prosecuting civil proceedings before District Court, New York, suit would not be in time.

Article 29 of Schedule I of the Act, 1966 prescribes, if an action is not brought within two years the right is extinguished and the period is to be reckoned from the date of arrival. In the present case, the date of arrival of flight at the destination is June 1st, 1997. The presentation date is 3‑12‑2001, if the period of about two years four months (July 6, 1998) to (October 18, 2000), spent in the proceedings before District Judge. New York was excluded, even then, the suit would be barred under Article 29, by two months. The suit having been filed after the extinguishments of right to sue, was barred by time. Resultantly, the plaint was rejected by exercising the power under section 3 of the Limitation Act.

Hari Singh v. Muhammad Said and others AIR 1927 Lah. 200; Government of Balochistan v. Azizullah Memon and 16 others .PLD 1993 SC 341; Government of Sindh v. Sharaf Faridi and others PLD 1994 SC 105; Al‑Jehad Trust v. Federation of Pakistan and others PLD 1996 SC 324; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Malik Asad Ali and others v. Federation of Pakistan PLD 1998 SC 161; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Sh. Liaquat Hussain and others v. Federation of Pakistan PLD 1999 SC 504; New Jubilee Insurance Company Ltd. Karachi v. National Bank of Pakistan, Karachi PLD 1999 SC 1126; Mirza Muhammad Saeed v. Shahabud‑Din and 8 others PLD 1983 SC 385; Raja Karamatullah and 3 others v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892; Karachi Electric Supply Corporation Ltd. v. Lawari and 4 others PLD 2000 SC 94;. Bashir Ahmed v. Muhammad Sharif and 4 others PLD 2001 SC 228; Shahenshah Hussain v. Messrs Thai Airways International Limited 2000 MLD 1454; Messrs Farid.Sons Ltd. v. Messrs Siemens & Halske A.G. Hoff and Pakistan PLD 1961 (W. P.) Kar. 612; Rajanna v. Narayan AIR 1923‑Nag. 321; Firm Ramnath Ramachandra v. Firm Bhagatram & Co. AIR 1959 Raj. 149 and Current Legal Problems, 1952 Vol. S, Stevens & Sons Ltd. London ref.

Arshad Iqbal for Plaintiff.

Muhammad Ali Sayeed and Rasheed A. Razvi, Amicus Curiae.

Date of hearing: 15th May, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 453 #

P L D 2002 Karachi 453

Before Ghulam Nabi Soomro and Ata‑ur‑Rehman, JJ

ABDUL RASHEED ‑‑‑ Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 7 of 2001, decided on 13th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑Ss. 497/498‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9, 46(2)(i), 51 & 74‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4‑‑‑Notification No.F.21(5)/2000‑A.IV(D), dated 16‑10‑2000‑‑ Notification No.F.21(5)/2000‑AIV(D), dated 18‑10‑2000 ‑‑‑ Notification No.F.21(5)/2000‑A.IV(D), dated 12‑3‑2001‑‑‑Bail, grant of ‑‑‑Jurisdiction of Single Special Court for Karachi Division‑‑‑Accused for having been found in possessing 5 kgs. of Charas on 12‑6‑1997 was initially challaned under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979 and was granted bail by Judicial Magistrate on 20‑6‑1997‑‑‑Police, after adding Ss.6 & 9 of Control of Narcotic Substances Act, 1997, submitted challan on 17‑11‑1999 before Sessions/Special Judge (Narcotics), who issued notice to accused for cancellation of his bail‑‑‑Bail was cancelled on the ground that Judicial Magistrate was not competent to grant bail in view of the bar under S.51 of Control of Narcotic Substances Act, 1997 on grant of bail to accused being involved in more than 1000 grams of narcotics‑‑‑Validity‑‑‑Single Special Court for Control of Narcotic Substances for Karachi Division had been established to deal with cases falling under Control of Narcotic Substances Act, 1997‑‑‑Alleged offence had been committed prior to commencement of Control of Narcotic Substances Act, 1997, but S.74 thereof made an offence falling under any other law in force also punishable under the Act‑‑‑Present case being not one either under Customs Act or under any law for the time being in force would come out of the jurisdiction of Trial Court‑‑‑Impugned order of cancellation of bail being without jurisdiction could not sustain‑‑‑Accused was granted bail with observations that present case and other cases committed under the Ordinances in relation to Control of Narcotic Substances would stand transferred to respective Sessions/Special Courts of the District.

1999 PCr.LJ 63 and PLD 1996 Lah. 304 ref.

Mehmood A. Qureshi for Applicant.

Shoaib M. Ashraf, Special Prosecutor for ANF.

Habib Ahmao, A.A.‑G. for the State.

Shaukat H. Zubedi: Amicus curiea.

Date of hearing: 13th April, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 457 #

P L D 2002 Karachi 457

Before S. Ahmed Sarwana and Syed Zawwar Hussain Jafery, JJ

HAFEEZULLAH and others‑‑‑Petitioners

versus

ABDUL LATIF and others‑‑‑Respondents

Constitutional petition No. D‑1171 of 2001', decided on 24th April, 2002.

(a) Interpretation of statutes‑‑

‑‑‑‑ Word "shall" is used in a statute as a term of art to impose a duty to do what is prescribed, not a discretion to do it or not or to do something like it instead.

Greenwick Processing v. ACAS (1978) 1, All ER 338 and PLD 1991 Lah. 400 ref.

(b) Interpretation of statutes‑‑

‑‑‑‑ Lacuna in sub‑legislation‑‑‑Power of Court to remove‑‑‑Court would adopt that construction, which would remove the lacuna and advance the purpose and object of statute‑‑‑Where lacuna was not in a statute, but was in a sub‑legislation made by the Government, same could be cured by the Court.

Province of East Pakistan v. Sharafatullah PLD 1970 SC 514 ref.

‑‑‑‑ Where a particular procedure is prescribed for doing something that thing must be done according to that procedure, otherwise the entire proceedings would be illegal or irregular.

(d) Interpretation of statutes‑‑

‑‑‑‑ Provisions of a law should be harmoniously interpreted so as to avoid any conflict and repugnancy between them.

(e) Sindh Local Government Elections Rules, 2000‑‑

‑‑‑‑Rr. 34(2)(iii) & 39(4)(iii)(a)‑‑‑Validity of ballot paper for counting‑‑Signature as well as stamp/seal of Presiding Officer on the back of ballot paper‑‑‑Cultural and environmental background of necessity of such requirement as felt by the Legislature stated.

(f) Sindh Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 34(2)(iii) & 39(4)(iii)(a)‑‑‑Eligibility of a ballot paper to be used as a valid ballot paper and to be counted as a valid vote ‑‑‑Requirements‑‑Presiding Officer had no discretion under R.34(2)(iii) of the Rules, but must comply with the mandatory requirements thereof‑‑‑Signature of Presiding Officer on ballot paper was mandatory and without his signature, ballot paper had no sanctity in law, and thus, could not be included in the .category of valid documents for the purpose of counting of votes‑‑‑Ballot paper without signature of Presiding Officer would not be a valid ballot paper and could not be used as a ballot paper by an elector for expressing his opinion in favour of any candidate‑‑‑Such ballot paper, if used, would not be eligible for counting‑‑‑Rules 34 & 39 of Sindh Local Government Elections Rules, 2000 had to be read together so as to avoid a conflict between them‑‑Government had inadvertently omitted to add the requirement of signature of Presiding Officer in R.39(4)(iii) like it had done in R.34(2)(iii) of the Sindh Local Government Elections Rules, 2000‑‑‑Such lacuna was not in the statute, but was in a sub‑legislation made by the Government, which could be cured by the Court‑‑‑Only way to harmonize Rr.34 & 39 and remove the conflict between them was to exclude those votes, which did not contain signature of Presiding Officer‑‑‑Such interpretation would uphold the sanctity of vote, inculcate transparency, fairplay and bring some honesty in society being the need of hour.

1984 CLC 1294 ref.

Aziz Ahmad Khowaja for Petitioners.

Kalander Bux Phulpoto for Respondents Nos. l and 2.

Ghulam Dastagir A. Shahani, Addl. A.‑G. for Respondents Nos.3 to 6.

Date of hearing: 24th April, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 464 #

P L D 2002 Karachi 464

Before Zahid Kurban Alvi and Sarmad Jalal Osmany, JJ

Syed MURAD ALI SHAH and others‑‑‑Petitioners

versus

GOVERNMENT OF SINDH through Home Secretary and 7 others‑‑‑Respondents

Constitutional Petitions Nos.D‑902 and 996 of 2000, decided on 29th March, 2002.

(a) Sindh Enquiries and Anti‑Corruption Act (IV of 1991)‑‑‑

‑‑‑‑Preamble & S. 3‑‑‑Sindh Enquiries and Anti‑Corruption Rules, Rr.8 & 11‑‑‑Prevention of Corruption Act (Il of 1947), S.5‑‑‑Penal Code (XLV of 1860), S.161‑‑‑Criminal Procedure Code (V of 1898). Ss. 154 & 156‑‑Constitution of Pakistan (1973), An. 199‑‑‑Constitutional petition‑‑‑Offences of Corruption by public servants‑‑‑Jurisdiction of Enquiries and Anti-Corruption Establishment‑‑‑Quashing of proceedings‑‑ ‑Lodging of F.I.Rs. in local Police Station against petitioners/civil servants for having committed acts of corruption and misconduct etc., causing thereby massive loss to public exchequer‑‑‑Validity‑‑‑Only Anti‑Corruption Establishment of Sindh Government had jurisdiction in terms of S.3 of Sindh Enquiries and Anti-Corruption Act, 1991, to inquire into any allegation of corruption against a civil servant and then initiate proceedings for his prosecution ‑‑‑F.I.Rs. in question were suffering from basic legal defects: they were without jurisdiction as Anti‑Corruption Police Stations were available at Karachi; that no prior permission had been accorded by Competent Authority for their prosecution in terms of R.11(2) of the Rules; and that no exercise in terms of S.3 of Sindh Enquiries and Anti‑Corruption Act, 1991 had been carried out‑‑‑Ex post facto approval of Government/Anti‑Corruption Committee for investigation of said F.I.Rs, would not help the prosecution as according to R.11(2) of the Rules, prior permission was necessary‑‑High Court quashed all such F.I.Rs being registered without jurisdiction.

Shahnaz Begum v. Hon'ble Judges of the High Court and another PLD 1971 SC 677; Adamjee Insurance Company Limited v. Assistant Director, Economic Enquiry Wing 1989 PCr.LJ 1921; Anwar Ahmed Khan v. T State 1996 SCMR 24; Muhammad Latif v. Sharifani 1998 SCMR 666 and Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101 ref.

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

Art. 199‑‑‑Criminal Procedure Code (V of ‑1898), Ss.154 & 156‑‑Constitutional jurisdiction‑‑‑ Quashing of proceedings ‑‑‑Scope‑‑‑When a complaint/investigation/report or other step either in lodging of F.I.R. or prosecution of a criminal case was patently against the provisions of any law or otherwise no case could possibly be made out, then High Court had jurisdiction to quash the same as no useful purpose would be served to keep the matter pending, rather same would amount an abuse of the process of a Court of law.

Miraj Khan v. Gull Ahmed and others 2000 SCMR 122 and Mian Munir Ahmad v. The State 1985 SCMR 257 ref.

‑‑‑‑Ss. 9, 18 & 33‑‑‑Ehtesab Act (IX' of 1997), Ss.3, 15 & 28‑‑‑Ehtesab Ordinance (XX of 1997), Ss. 3, 14 & 25‑‑‑Criminal Procedure Code (V of 1898), Ss. 154 & 156‑‑‑Addition of offences under National Accountability Bureau Ordinance, 1999 and Ehtesab Ordinance, 1997 in ordinary F.I.R.‑‑Validity‑‑‑Ordinary Courts of law cannot take cognizance of offences under the said Ordinances as Special Courts have been established thereunder for the purpose.

Rasheed A. Razvi alongwith Gohar Iqbal for Petitioner (in C. P. No.D‑902 of 2000).

Muhammad Nawaz Shaikh for Petitioners (in C.P. No.D‑996 of 2000).

,Raja Qureshi, A.‑G., Sindh alongwith Hamid Mian and Ghulam Memon, A.‑G. Anti‑ Corruption Establishment for Respondents.

Dates of hearing: 23rd and 29th January, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 471 #

P L D 2002 Karachi 471

Before Muhammad Roshan Essani and S.A. Rabbani, JJ

ABDUL GHAFOOR and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Special Criminal A.T. Appeals Nos.29 and 33 of 2000, decided on 13th March, 2002.

Penal Code (XLV of 1860)‑‑

‑‑‑Ss. 302/394/34‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑E‑‑Appreciation of evidence‑‑‑Incident took place during night‑‑‑Names of accused were not disclosed in F. I. R. ‑‑‑Prosecution witnesses subsequently picked up the accused in identification test‑‑‑Presence of injured prosecution witnesses at the time of incident could not be doubted‑‑‑Complainant and another prosecution witness were present at the scene of offence, but they had not received injuries‑‑‑Testimony of prosecution witnesses could not be shattered during their cross‑examination‑‑‑Accused were close to injured witnesses, who identified them in torch light as well as in moon‑light‑‑Ocular evidence and identification test was supported by recovery of weapons from accused‑‑‑Report of Ballistic Expert was positive‑‑‑Separate cases had been registered against accused under S.13‑E of West Pakistan Arms Ordinance, 1965‑‑‑Two of the accused persons had not caused injuries to deceased, whereas third accused was alleged to have caused fatal blow to deceased‑‑‑Identification of person during night time in torch light might lead to mistaken impression to the viewer‑‑‑Treating such a mitigating circumstance, death sentence of accused was altered into life imprisonment by way of abundant caution without reducing the quality or standard of evidence‑‑‑Rest of the convictions and sentences of accused were upheld in circumstances.

Azizullah K. Shaikh for Appellants (in both the Cases).

Habib Ahmed, Asstt. A.‑G., Sindh for the State (in both the Cases .

Date of hearing: 19th September, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 477 #

P L D 2002 Karachi 477

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

THE STATE‑‑‑Appellant

versus

HAIDER ABBAS alias BAQAR ABBAS ‑‑‑Respondent

Special Criminal A.T. Acquittal Appeal No.77 of 2001, decided on 22nd March, 2002.

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

‑‑‑‑S. 417(1)‑‑‑Appeal against acquittal‑‑‑Interference by High Court‑‑Scope‑‑‑High Court in appeal against acquittal could only interfere, if the reasons given by Trial Court were, perverse, wholly illogical, artificial and not supported by facts on record.

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

‑‑‑‑S. 417(1)‑‑‑Explosive Substances Act (V of 1908), S.3‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Appeal against acquittal‑‑‑Neither any circumstance had been pointed out by prosecution nor the findings recorded by trial Court were perverse, illogical, unconscionable and contrary to law and facts‑‑‑High Court dismissed the appeal in limine.

Habib Ahmed, A.A.‑G. for the State..

S.K. Jatoi for Respondent. .

PLD 2002 KARACHI HIGH COURT SINDH 486 #

P L D 2002 Karachi 486

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

SADIQUE ALI and others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Accountability Bail Application No.342 of 2002, decided on 29th March, 2002.

(a) Criminal trial‑‑

‑‑‑‑ Case of every accused has to be considered on its own merits.

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

‑‑‑‑S. 497‑‑‑Bail‑‑‑Appreciaiton of evidence‑‑‑Scope‑‑‑Only tentative assessment has' to be made at the stage of bail‑‑‑No in‑depth and detailed examination of prosecution evidence is warranted at such stage.

‑‑‑‑S. 497‑‑‑National Accountability Bureaus Ordinance (XVII of 1999), Ss.18(g) & 24(b)‑‑‑Bail, grant of‑‑‑Grant of bail to co‑accused had no bearing on the bail plea of accused as allegations against co‑accused were of entirely different nature‑‑‑Grid/Project had not been carried out strictly according to specification and standard prescribed by the relevant authorities‑‑‑Record showed that Grid/Project had never been tested successfully "on load", rather same had been tested when it was not "on load" ‑‑‑Repairs and rectification done subsequently were indicative of the fact that prima facie grid/Project had not been completed according to require standard and specification‑‑‑High Court was not a proper forum to consider feasibility of site inspection or independent survey of the Project by some : independent experts‑‑‑Accused were at liberty to submit such application before Trial Court,, if so advised, and Trial Court would consider same and make appropriate order‑‑‑Offence committed by accused came within the purview of white‑collar crime, which affected the society at large‑‑‑Such offences were to be treated on entirely different plane than offences punishable under Penal Code or other allied laws‑‑‑Accused were not entitled to bail‑‑‑High Court dismissed the bail application in circumstances.

Imtiaz Ahmed v. The State PLD 1997 SC 545 fol.

Abul Inam for Applicants.

Aamir Raza Naqvi, A.D.P;G., NAB

Date of hearing: 26th March, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 494 #

P L D 2002 Karachi 494

Before Wahid Bux Brohi, J

AIJAZ ALI‑‑‑Petitioner

versus

S.H.O. POLICE STATION WALEED, LARKANA and 2 others‑‑‑Respondents

Constitutional Petition No.S‑169 of 2002‑decided on 19th April, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 154‑‑‑Constitution of Pakistan (1973), Arts. 4 & 199‑‑‑Constitutional petition‑‑‑ Recording of second F.I.R.‑‑‑F.I.R. in the case was lodged by Jail Superintendent alleging therein that one inmate of jail (undertrial prisoner) had tried to commit suicide and injured himself‑‑‑Petitioner/brother of accused had given a different set of facts alleging that his brother, who was an undertrial prisoner, was beaten by the Jail Authorities and his condition had become seriously dangerous‑‑‑Petitioner/brother of accused had sought direction 'to S‑H.O. Police Station concerned to register case and also a direction about judicial enquiry‑‑‑Plea of petitioner was resisted on ground that F.I.R. of ,same incident had already been registered‑‑‑Validity‑‑‑No doubt a different set of circumstances had been laid down in Constitutional petition, but High Court would refrain from commencing upon genuineness or otherwise of the allegations‑‑‑Notwithstanding such reservation High Court observed that it was indefeasible right of every citizen and so also of petitioner as enjoined in Art.4 of Constitution of Pakistan (1973) that be should be dealt with in accordance with law‑‑‑Obligation had been cast on Police Officer to take action within meaning of S.154, Cr.P.C. when information was laid before him‑‑‑High Court directed that as and when petitioner appeared and made statement, same would be recorded and if cognizable offence was made out, case should be registered accordingly.

Imran Ashraf v. The State 2001 SCMR 424 ref.

Azizul Haq Solangi for Petitioner.

Muhammad Bachal Tonyo, Addl. A.‑G. for Respondents.

Date of hearing: 19th April, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 497 #

P L D 2002 Karachi 497

Before Zahid Kurban Alvi and Sarmad Jalal Osmany, JJ

Mian MUNIR AHMAD ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Accountability Appeal No.D‑4 of 2001, Miscellaneous Applications Nos.524, 525 of 2001, 5 and 230 of 2002, decided on 15th June, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 426‑‑‑Nationai Accountability Bureau Ordinance (XVIII of 1999) Preamble‑‑‑Constitution of Pakistan (1973), Art. 45‑‑‑Suspension of sentence‑‑‑Remissions recorded in the Jail Roll of the accused were based on the orders of the President while exercising his prerogative under Art.45 of the Constitution‑‑‑Only that Government Functionary which had issued the original remission had the power to withdraw or cancel the same and consequently the remission already earned by the accused could not be withdrawn or cancelled on a mere letter written by the Ministry of Interior, Government of Pakistan to the Provincial Home Department‑‑‑Even otherwise, such letter was not an order given under any sanction of law, but a mere directive to the Provincial Government not to recommend the cases of those persons who had been convicted under the NAB Ordinance for the purpose of remission etc. and the same could not in any case operate to cancel the accused's remission‑‑‑Accused had served out the major portion of his sentence, viz. 7 years and 8 months and now a balance of only 2 years and 4 months was left‑‑‑Main application was to take sometime before it was decided‑‑‑Accused was also suffering from various per his medical history‑‑‑Sentence of accused 'was suspended in circumstances.

Lt.-Col.G.L. Bhattacharya v. The State PLD 1963 Dacca 422; Farid Khan v. The State PLD 1965 Pesh. 31; Air Marshal (Retd.) Waqar Azeem v. The State Criminal Appeal No. 1682 of 2000; Fida Hussain v. The State PLD 2002 SC 46; Muhammad Afzal v. Home Secretary, Government of Sindh PLD 1989 Kar. 7 and Lt.‑Col. G.L. Bhattacharya v. The State PLD 1964 SC 503 ref.

Chaudhry Aitezaz Ahsan alongwith Faisal Arab for Appellant.

Raja Qureshi, A.‑G., Sindh.

Dilawar Hussain and Amir Raza Naqvi for NAB.

Dates of hearing: 31st January and 4th February, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 502 #

P L D 2002 Karachi 502

Before Muhammad Moosa K. Leghari, J

KHALID & COMPANY through Proprietor‑‑‑Plaintiff

versus

CANTONMENT BOARD, MALIR through President, Commander Station Headquarter, Malir Cantonment and Cantonment Executive Officer, Karachi‑‑‑ Defendant

Suit No. 131 of 2001 and Civil Miscellaneous Application No. 123 of 2002, decided on 30th April, 2002.

(a) Civil Procedure Code, (V of 1908) ‑‑‑

‑‑‑‑O.XXX, Rr. 1, 10 & O.VI, R.17‑‑‑Suit in the name of proprietorship firm instead of its proprietor‑‑‑Defendant objected to suit having not been filed by a competent person‑‑‑Plaintiff filed application under O.VI, R.17, C.P.C., seeking amendment of the title insofar as the status of plaintiff was concerned‑‑‑Objection raised by defendant had no force.

(b) Cantonments Act (II of 1924)‑‑‑

‑‑‑‑S. 273‑‑‑Specific Relief Act (I of 1877), Ss.42, 54 & 56‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17 & O.VII, R.11 ‑‑‑Suit against Cantonment Board claiming relief of declaration and injunction‑‑‑Prior notice, absence of‑‑‑Maintainability of suit‑‑‑Prayer for declaration could not be granted to plaintiff as no notice required under the law had been served on the Board‑‑‑Suit for declaration was, thus, liable to fail on that count.

Muhammad Hussain's case PLD 197 C 785 rel.

‑‑‑‑Ss. 42 & 54‑‑‑Suit for declaration‑‑‑Further relief‑‑‑Meaning of‑‑‑Relief by way of injunction is "further relief".

AIR 1961 SC 808 fol.

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17‑‑‑Court Fees Act (VII of 1870), S.7‑‑‑Suit for declaration‑‑‑Consequential relief by way of possession not claimed ‑Effect‑‑‑Suit could not fail merely for such reason‑‑Court in such circumstances should allow plaintiff to amend plaint by adding prayer for possession and paying appropriate court‑fee.

PLD 1971 SC 762 and 1989 MLD 3125 fol.

(e) Transfer of Property Act (IV of 1882)‑‑

‑‑‑‑S. 105‑‑‑Easements Act (V of 1882), S.52‑‑‑Lease and licence‑‑Distinction‑‑‑Lease is a transfer, of an interest in immovable property‑‑Licence is merely a competence to do something which except for such permission would be unlawful.

Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106 fol.

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

‑‑‑‑Ss. 42, 54, 55, 56(f) & 21‑‑‑Transfer of Property Act (IV of 1882), S.105‑‑‑Easements Act (V of 1882), Ss.4, 52, 60 & 63‑‑‑Contract Act (IX of 1872), S.73‑‑‑Civil Procedure Code (V of 1908), O.VII, RAI ‑‑‑ Suit for declaration and injunction‑‑‑Award of contract for establishing Cattle Mandi in area of Cantonment Board‑‑‑Board on plaintiff's failure to fulfil the requirements cancelled the contract and then decided that it would itself run Cattle Mandi on partnership basis and published public notice in newspaper‑‑‑Plaintiff challenged such notice through suit‑‑‑Defendant filed application under O.VII, R.11, C.P.C. for rejection of plaint on the ground that suit was barred by S.42 of Specific Relief Act, 1877‑‑‑Validity‑‑Relationship between plaintiff and defendant according to plaint, was that of licensee and licensor‑‑‑Contract also provided that such arrangements would stand automatically terminated on orders from higher Authorities for any reason deemed suitable and/or in case of irregular payment‑‑‑Decision of Board to run Cattle Mandi itself was communicated to plaintiff and was disclosed in impugned notice ‑‑‑Averments made in plaint were afterthought‑‑‑Plaintiff was not entitled to any discretionary relief as he had concealed facts and had not come to Court with clean hands‑‑‑Impugned notice appearing in newspaper had been acted upon and fresh contract had since been executed by Board with another contractor‑‑‑Plaintiff in such circumstances could not be granted perpetual injunction in view of provisions of S.56(f) of Specific Relief Act, 1877‑‑‑Only remedy, if any, available to plaintiff would be to claim compensation for breach of contract by proving the same having been revoked without notice or in violation of the terms of contract‑‑‑Plaintiff had no right or legal character within the contemplation of S.42 of Specific Relief Act, 1877 to maintain a suit for declaring himself lawful contractor of Cattle Mandi‑‑‑‑High Cour, allowed application under O.VII, R.11, C.P.C. filed by defendant and rejected the plaint‑‑[1999 MLD 1781 overruled].

1999 MLD 1781 overruled.

PLD 1961. Dacca 693; NLR 1983 Civil 422; 1988 CLC 1182; 1992 CLC 691; 1996 CLC 31; AIR 1961 SC 808; PLD 1965 SC 83; Barmah Eastern Ltd.'s case PLD 1967 Dacca 190; PLD 1965 (W.P.) Kar. 202; 1973 SCMR 555 and 1995 SCMR 1431 ref.

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

‑‑‑‑O. VII, R.11‑‑‑Incompetent suit‑‑‑Duty of Court‑‑‑Incompetent suit must be buried at its inception as it is not only the requirement of law, but is in the interest of justice‑‑‑Such suit should not be allowed to further encumber legal proceedings.

S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338 rel.

Akhtar Hussain for Plaintiff

Raja Qureshi for Defendant.

Date of hearing: 15th April, 2002. .

PLD 2002 KARACHI HIGH COURT SINDH 511 #

P L D 2002 Karachi 511

Before Mushir Alam, J

SHAFI-UR-REHMAN and 2 others---Plaintiffs

versus

FATEH MUHAMMAD ---Defendant

Summary Suit No. 1068 of 1999, decided on 15th April, 2002

(a) Suits Valuation Act (VII of 1877)---

----S. 8---Court Fees Act (VII of 1870), S.7(v) [as amended by Sindh Finance Act (XIII of 1974)]---Specific Relief Act (I of 1877), Ss.8 & 9--Valuatin of suit for the purpose of jurisdiction and court-fee---Suit for possession of immovable property---Affixing of court-fee ---Scope--Valuation for the purpose of jurisdiction and court-fee, in terms of S.8 of Suits Valuation Act, 1877, is the same for a suit for possession under S.7(v.) of- Court Fees Act, 1870---Court-fee on a plaint to suit for possession is leviable in accordance with the market value of the suit property---Court-fees payable on a suit for possession under S.9, Specific Relief Act, 1877, is prescribed in the First Sched. to the Court Fees Act, 1870, at Serial No.2 thereof i.e. a fee of 1/2 of the amount as prescribed in Serial No. l maximum court-fees of Rs.15,000 is provided under the head---Fee payable alone does not determine the jurisdiction of the Court---Value as determinable for the computation of court-fee and the value for the purpose of jurisdiction is same---Suit for possession whether under S.8 or under S.9 of Specific Relief Act, 1877,, is to be valued under S.7(v) of Court Fees Act, 1870 [as amended by Sindh Amendment Act of 1974].

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

----S. 7(v) [as amended by Sindh Finance Act (XIII of 1974)]---Suits Valuation Act (VII of 1877), S. 8---Specific-Relief Act (I of 1877), Ss.8 & 9---Court-fee, affixing of---Jurisdiction of Court---Determination---Courtfee payable on a suit for possession under $.9 of Specific Relief Act, 1877 is 1/2 of the court-fee that may be attracted in suit under S.8 of the Specific Relief Act, 1877---Amount at which the subject property in suit is valued for which possession is claimed determines jurisdiction of Court and not the court-fee that may be payable.

---- Issue of mesne profits invariable raises the question of title---Right to possess and occupy immovable property and right to enjoy profit thereof on the basis of some right/entitlement thereto; are two different and distinct causes of action.

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

----Ss. 8 & 9---Civil Procedure Code (V of 1908), O.11, R.6 & O.VI, R.16--- Dispossessing illegally---Recovery of possession and claim of mesne profits ---Misjoinder of causes of action---Striking out of pleadings---Plaintiff sought recovery of possession under S.9 of Specific Relief Act, 1877, and also claimed recovery of mesne profits----Validity---Court, under S.9 of Specific Relief Act, 1877, can only adjudicate claim of possession alone bereft of title, right or legal character of the claimant---Claim of damages or mesne profits, invariably rest or right title or legal character of the claimant to claim such damages or mesne profit---Court is not required to enter into or adjudicate, right title or legal character of the person claiming possession under S.9 of Specific Relief Act, 1877---If a person is dispossessed illegally and without due process of law and such person is interested to claim damages and mesne profits together with possession then, such result can be achieved by bringing a suit under S.8 of the Specific Relief Act, 1877--Where a suit for possession under S.9 of Specific Relief Act, 1877, together with mesne profit is filed, Court may, in exercise of power under O.VI,, R.16, C.P.C., strike out, pleadings which are unnecessary or which tend to delay fair trial or, where it appears to the Court in terms of O.II, R.6, C P. C. that any cause of action joined in one suit cannot be conveniently tried or disposed of together, Court may order separate trial or may pass such other order as may be expedient---Claim of mesne profit in a suit for possession under S.9 of Specific Relief Act, 1877 in the present case, suffered from misjoinder of causes of action, therefore, relief of mesne profit as claimed by the plaintiff was struck off.

Foujmal Manaji v. Bikhibai and another AIR 1937 Sindh 161 and Yalamanchili Purnayya v. Pamu Ramaswamy AIR 1915 Mad. 80 rel.

(e) West Pakistan Civil Courts Ordinance (II of 1962)---

----S. 7---Original jurisdiction in civil suits and -proceedings in District Karachi---Such jurisdiction in civil suits and proceedings of the value exceeding rupees five lacs in Karachi District is exercisable by the High Court in terms of S.7 of West Pakistan Civil Courts Ordinance, 1962--Where subject-matter in amount of value does not exceed rupees five lacs, pecuniary jurisdiction in Karachi District vests in Civil Judges IInd Class as conferred under S.7 of West Pakistan Civil Courts Ordinance, 1962, vide Notification dated 21-3-2000.

(f) West Pakistan Civil Courts Ordinance (II of 1962)--- .

----3. 7---Civil Procedure Code (V of 1908), S.15 & O.VI1, Rr.10 & 11--Pecuniary jurisdiction of Courts---Rejection of plaint---Court of higher grade entertaining suit of less valuation---Plaintiff valued the suit for more than Rs.500,000 and filed the same before High Court---Defendant raised objection to the valuation and High Court found the suit of less .value--Contention of the defendant was that the plaint be rejected---Validity---In exercise of original civil jurisdiction there was no embargo on Court of higher grade/jurisdiction to entertain suit of lesser valuation---Such jurisdiction was normally exercised where the lower Court was not in existence---High Court did not see any reason why the matter be entertained by the High Court, when subordinate Court of competent pecuniary jurisdiction was very much in existence---Where the pecuniary jurisdiction was with another Court then the plaint could not be rejected under O.VII. R.11, C.P.C. best course was to return the plaint to the plaintiff to be presented before the competent Court of pecuniary jurisdiction---High Court returned the plaint to the plaintiff to represent the same before tire Court of competent jurisdiction.

PLD 1974 Kar. 408 ref.

Khawaja Sharful Islam for Plaintiff.

Riaz Hussain Baloch for Defendant.

Date of hearing: 9th April, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 518 #

P L D 2002 Karachi 518

Before Muhammad Afzal Soomro, J

HAMID HAMEED WARIS‑‑‑Petitioner

versus

Mst. TEHSEEN‑‑‑Respondent

Constitutional Petition No.S‑141 of 2001, decided on 3rd May, 2002.

(a) Islamic Law‑‑

‑‑‑‑Divorce‑‑‑If a husband announces divorce thrice to his wife, same becomes operative according to Hanafi Sect.

(b) Dissolution of Muslim Marriages Act (VIII of 1939)‑‑‑

‑‑‑‑S. 2(ix)‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.‑‑‑Suit for dissolution of marriage‑‑‑Oral pronouncement of divorce thrice by husband to his wife‑‑‑Husband riot reducing such divorce in writing‑‑‑Remedy of wife to get confirmed such oral divorce‑‑‑Wife in such circumstances had no other option, but to approach the Court.

‑‑‑‑S. 5 & Sched.‑‑‑Dissolution of Muslim Marriages Act (VIII of 1939), S.2(viii)(ix)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for dissolution of marriage on grounds of cruelty and that husband had orally pronounced her divorce thrice‑‑‑Wife during examination further stated that alternatively she wanted Khula' and was ready to forego dower amount as she could not live with husband within the limits of God‑‑Family Court decreed the suit on ground of cruelty‑‑‑Contention of husband was that the only remedy available to wife was by way of Khula' but Family Court had travelled beyond its jurisdiction while passing decree on ground of cruelty in absence of any such issue‑‑‑Validity‑‑‑Husband in written statement and examination‑in‑chief had admitted that he had divorced his wife three times‑‑‑No need of framing issue of cruelty in such circumstances‑‑‑Such issue could have been framed had there been no admission about pronouncement of divorce three times‑‑‑Mention of attitude of husband in judgment in respect of cruelty did not mean that Family Court had passed judgment on such basis‑‑‑Some of the grounds were available to wife for getting her marriage dissolved, if divorce would not have been pronounced thrice by husband‑‑‑Issue of cruelty could necessarily have been made, if wife would have come to Court on any of the grounds available to her‑‑‑Wife had come to the Court simply to get confirmed the oral pronouncement of divorce thrice by her husband‑‑‑Not possible for wife to live with husband within limits of God in view of oral pronouncement of divorce thrice‑‑‑High Court dismissed the Constitutional petition in circumstances.

Mst. Hafizan v. Muhammad Yasin and others 1985 CLC 1448; Muzzafar Ali v. Mst. Mehrun Nisa and others 1989 CLC 1805; Anwari Begum alias Khalida Anwar v. Additional District Judge, Lyallpur and others 1988 CLC 1641 and Shaukat Hussain v. Rubina and others PLD 1989 Kar. 513 ref.

A. Rasheed for Petitioner.

Syed Asif Shah for Respondent No. 1.

Date of hearing: 4th February, 2002.

PLD 2002 KARACHI HIGH COURT SINDH 524 #

P L D 2002 Karachi 524

Before Wahid Bux Brohi, J

Dr. ZAFER AHMAD‑‑‑Petitioner

Versus

Mst. SHAMSA and others‑‑‑Respondents

Constitutional Petitions Nos.S‑265 and S‑266 of 2001, decided on 15th May, 2002.

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 5, 9(5)(a) & Sched.‑‑‑West Pakistan Family Courts Rules, 1965, R.13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Suit for recovery of dower and maintenance‑‑‑Ex parte decrees, setting aside of‑‑‑Defendant was. declared ex parte during proceedings of suits‑‑‑Family Court passed ex parte decrees after dismissing defendant's applications for setting aside ex parte order on the ground that ex pane order had already been announced‑‑‑Appellate Court dismissed defendant's appeals being time-barred‑‑‑Validity‑‑‑Defendant in his affidavit filed in support of his application under R.13 of West Pakistan Family Courts Rules, 1965 had denied service of summons upon him‑‑‑Signature of defendant on said affidavit was totally different from that on copy of summons produced by bailiff‑‑‑Post through courier service had been delivered to someone else‑‑Inquiry in the matter was reasonably required in order to arrive at a legitimate conclusion that summons had been duly served‑‑‑Family Court had dismissed application for setting aside ex parte order simply on the ground that ex parte order had already been announced‑‑‑Said reason was no. reason in the eye of law‑‑‑Such a bald observation clearly negated the provisions of S.9(5)(a) of the West Pakistan Family Courts Act, 1964‑‑‑Such a slipshod and rough. order was to be refrained from while performing duty of judicial dispensation‑‑‑Family Court was required to pass an order in express terms as to whether defendant was able to assign good cause for his previous nonappearance or not‑‑‑Family Court was not supposed to overlook the provision of law and pass an arbitrary order‑‑‑High Court set aside judgments and decrees passed by both the Courts below and remanded the cases to Family Court for proceeding afresh after allowing defendant to file written statement and contest the suits on merits.

Muhammad Qayum Baig v. Sabira Sultana 1986 CLC 196; Atta Muhammad Qureshi v. Settlement Commissioner, Lahore Division PLD 1971 SC 61; Maqsood Ahmed v. Judge Family Court, Bhoreywala 2001 CLC 567; Bashir Ahmed v. Zubaida 1990 ALD 180; Aziz Ahmed v. Ashraf 1991 CLC 1261 and Muhammad Sharif v. Ghulam Ali 1995 MLD 923 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ Duty of Judge‑‑‑While performing duty of judicial dispensation, Judge should refrain from passing slipshod and rough order.

‑‑‑‑S. 24‑A(2)‑‑‑Applicability of S.24‑A(2) of General Clauses Act, 1897‑‑Not only a Judge, but every authority, officer or person making an order under the powers conferred by or under any enactment is required to assign/record reasons for passing such order.

(d) Judgment‑‑

‑‑‑‑speaking‑ order‑‑‑An order must be a speaking order‑‑‑While dealing with substantive rights of parties, a cursory and groundless order without assigning reasons could not be conceived nor same would be treated as legal.

(e) West Pakistan Family Courts Act (XXXV of 1964)‑‑

‑‑‑‑S. 9(5)(a)‑‑‑Ex parte proceedings, setting aside of‑‑‑Expression "upon such terms" as used in S.9(5)(a) of the West Pakistan Family Courts Act‑‑Connotation‑‑‑Defendant showing good cause for previous non‑appearance‑‑Family Court would hear defendant in answer to the suit appeared on a day fixed for his appearance subject to such terms Court might direct‑‑‑Such terms essentially would not be meant to take away the right of hearing guaranteed to defendant in cl. (a) of subsection (5) of S.9 of the Act itself.

(f) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5‑‑‑Jurisdiciton of Family Court‑‑‑Scope‑‑‑Family Court is not supposed to overlook the provision of law and pass an arbitrary order.

Amir Malik for Petitioner.

Kamaluddin Ahmed for Respondents.

Date of hearing: 23rd October, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 530 #

P L D 2002 Karachi 530

Before Shabbir Ahmed, J

MUREED‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No‑92 of 1998, decided on 22nd November, 2001.

(a) Penal Code (XI 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Evidence of police employee‑‑‑Police personnel is as good witness as any other witness and for discarding evidence of a police witness something has to be essentially brought on record to prove motivation for making false testimony.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑No suggestion to prove motivation for making a false testimony against the accused was put to the police eye‑witness and his statement was as good as that of any other witness‑‑‑Non‑association of the witness from the public was explainable by the hard fact that. generally people hesitate to come forward as a witness to give evidence in such cases‑‑‑Death of the deceased in the manner alleged by the prosecution was not disputed‑‑‑Police eye‑witness was also a witness of arrest of the accused whose evidence could not be shattered during cross-examination which was corroborated by medical evidence‑‑‑Said witness had no animus against the accused to involve him by substituting with the real culprits‑‑‑Incident being of broad daylight mistaken identity of accused or his substitution was not possible‑‑‑Accused was found causing knife injuries to the deceased who on seeing police party ran away but was arrested with the crime weapon while decamping from the place of occurrence‑‑Retracted confession of the accused was also corroborated in material particulars by the medical evidence which had further supported the ocular testimony‑‑‑Conviction and sentence of accused were upheld in circumstances.

Abdul Majid alias Majha v. The State 1976 PCr.LJ 545 and Syed Sharifuddin Pirzada v. Sohabat Khan PLD 1972 SC 363 ref.

‑‑‑‑S. 302/34‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 46 ‑‑‑ Dying declaration‑‑‑Relevant dying declaration is a violent exception to almost all the fundamental rules of law of evidence‑‑‑Approach of death though produces a state of mind in which the utterance of a dying person is to be taken as free from all ordinary motives to misstate, but cases are not uncommon of false declaration being made on behalf of a dying ‑‑Such declaration therefore must be in presence of a Doctor, Magistrate or independent officials‑‑‑Conviction even in a case inviting capital punishment may be based on dying declaration alone, but the Court must be satisfied that it bears all the marks of truth.

Abdul Majid alias Majha v. The State 1976 PCr.LJ 545 ref.

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

---S. 342‑‑‑Power to examine the accused‑‑‑Sector. 342, Cr.P.C. is based on the principle involved in the maxim "audi alteram partem", that no one should be condemned unheard‑‑‑Material evidence should be brought to the notice of accused to enable him to give an explanation.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), S.164‑‑‑Qanun‑eShahadat (10 of 1984), Art.37‑‑‑Confession‑‑‑Delayed confession‑‑‑Mere fact that the accused remained in police custody for some time cannot be held to prove that the confession made by him was the result of inducement, threat or promise‑‑‑Confession will be irrelevant under Art. 37 of the Qanune‑Shahadat, 1984 only if it appears to the Court called upon to deal with the confession that it had resulted from inducement, threat or promise proceeding from a person in authority.

Syed Sharifuddin Pirzada v. Sohbat Khan PLD 1972 SC 363 ref.

(f) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 37‑‑‑Confessions caused by inducement, threat or promise‑‑Article 37 of the Qanun‑e‑Shahadat, 1984 does not require strict proof that the confession has resulted from inducement, threat or promise, but that does not mean that the Court can declare the confession irrelevant even if there is no material to suggest that the confession was not voluntary.

Allah Bachayo Soomro for Appellant.

M. Anwar Ansari for the State.

Date of hearing: 19th October, 2001.

PLD 2002 KARACHI HIGH COURT SINDH 542 #

P L D 2002 Karachi 542

Before Mushir Alam, J

Miss RUKHSANA MASHADI and 4 others‑‑‑Plaintiffs

Versus

Syed QASIM HUSSAIN MASHADI and 2 others‑‑‑Defendants

Suit No. 1255 of 1998 and C. M. As. Nos. 8936, 8997, 8264 of 2001, 3127 of 2000, decided on 20th May, 2002.

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

‑‑‑‑O. I. R.10‑‑‑Transposition of party‑‑‑Meaning‑‑‑Power of Court to transpose a party‑‑‑Scope and purpose‑‑‑Types of suits, wherein transposition can be allowed‑‑‑Effect of transposition on pleadings, character or nature of suit‑‑‑Principles.

Transposition of party, in legal parlance means to alter or change the order or position of a party usually opposite from the position earlier held i.e. from plaintiff to defendant or vice versa as the case may be. Power to transpose a party emanated from power to add, implead or strike out a party as conferred on Courts under Rule 10 to Order 1, C.P.C. Such powers are exercisable by the Court either suo motu or on the application of any of the parties to the proceedings.

Transposition of parties is generally allowed liberally by the Court in order to avoid multiplicity of litigation between the parties to a proceedings and to bring to an end the controversy or lis before the Court. Generally transposition is allowed in legal proceedings, where parties are accountable to each other out of the same or same series of transactions which are subject‑matter of suit, like for instance suit for accounts between partners, suit for administration between the legal heirs, suit between the co-owners/joint owners of the property or where interest of any party in same group becomes hostile inter se and becomes common with the interest of opposing parties or where interest of one party devolved, assumed, assigned or transferred unto another party in the opposite group or otherwise.

Where Court orders transposition of parties either at the motion of any one party or suo motu it merely places a party on one side to opposite side or allow any party to interchange or exchange their position with one another, such exercise of transposition does not affect the pleadings, complexion, character or nature of the suit. Foundation of the controversy remains the same.

Central Government of Pakistan and others v. Suleman khan and others PLD 1992 SC 590 and Muhammad Qasim Khan and 6 others v. Mst. Mehboob and 6 others 1991 SCMR 515 ref.

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

‑‑‑‑S. 36‑‑‑Execution of orders‑‑‑Execution of an order passed in the suit can be obtained by resort to provisions of S.36. C.P.C.

‑‑‑‑Ss. 12, 54 & 56‑‑‑Civil Procedure Code (V of 1908), O.I, R.10‑‑‑Suit for specific performance of agreement to sell and injunction‑‑‑Transposition of defendant as plaintiff‑‑‑Plaintiff made an offer not to press the suit subject to refund of earnest money paid by him‑‑‑One of the defendants accepted offer and refunded earnest money subject to forfeiture in case he failed to find a suitable buyer for a higher value within four months‑‑‑Some defendants (other than that, who refunded earnest money) on their own filed amended plaint transposing themselves as plaintiffs seeking relief of mandatory injunction against defendant having refunded earnest money ‑‑‑Validity‑‑Entirely new facts had been pleaded in amended plaint, wherein relief was claimed only against one defendant, who had refunded earnest money‑‑Complexion, character and nature of the suit of specific performance and injunction had been changed to that of mandatory injunction‑‑‑Right or interest available to original plaintiff/vendee had not been acquired by said defendants‑‑‑Rather said rights and interest had been assumed and acquired by defendant, who while refunding earnest money to original plaintiff had undertaken to buy suit property either by himself or through his nominee‑‑Defendant by doing so had stepped into the shoes of original plaintiff, thus, Court transposed him as plaintiff being vendee ‑‑‑Such transposition would not change character, complexion or nature of the suit for specific performance‑‑‑Amended plaint filed by some defendant was rejected in circumstance.

In amended plaint, pleadings in no more there, instead entirely new facts were pleaded, relief against one defendant only. Complexion, character and nature of the suit for specific performance and injunction had been changed to that of mandatory injunction seeking implementation of orders passed in the suit. Had there been any claim/suit in respect of administration, partition and distribution of the estate of deceased pending inter se the parties, then of course transposition of some of the defendants as plaintiff in the, matter could have been possible.

There was no order for the transposition of other defendants plaintiffs. Contention of said other defendants that when Court granted two weeks further time to file amended plaint, in fact it allowed transposition of parties could not be sustained for the reasons, firstly there was no earlier direction of filing amended plaint or order for transposition of parties; secondly even if it was presumed that by granting time to file amended plaint, transposition of parties was allowed, then there was nothing on record, whereby transposed parties were allowed to amend the pleadings to an extent that entire complexion, nature and character of suit was changed.

Amended plaint filed by said defendants transposing themselves as plaintiff was rejected.

Transposition of parties could be ordered by the Court both on application of any party or suo motu in case where Court was satisfied that any party to a proceedings had stepped into the shoes of another or interest of any party to the proceedings had either been acquired, transferred, assumed by way of assignment, devolution, transfer in any lawful manner only then transposition of such party could be ordered to avoid multiplicity of the proceedings to cut short the litigation provided nature, character and complexion of suit was not changed.

Defendants had not acquired any right or interest as vendee in the suit property which were available to original plaintiff/vendee. Rights and interest as vendee of the suit property were assumed and acquired by the other defendant who in fact while refunding the earnest money to original plaintiff undertook to buy the subject property either himself or through his nominee. By doing so in fact he had stepped into the shoes of original vendee/plaintiff. If any person was to be transposed, it was the defendant who could be transposed as plaintiff being vendee. By ordering transposition of said defendant as plaintiff, neither the character, complexion nor nature of the suit for specific performance would be changed. Under the circumstances, defendant was ordered to be transposed as plaintiff, name of original plaintiff was struck off and rest of the defendants were to remain defendants.

Ahmad Zairian Khan, Barrister v. Government of Punjab through Collector, Multan and 2 others 1993 CLC 1327; Yousaf Aziz v. Aqeela Begum PLD 1978 Kar. 205 and Malik Mumtaz Ali v. Pakistan through Secretary, Refugees and Works, Government of Pakistan, Rawalpindi and 3 others PLD 1971 Lah. 395 ref.

Mirza Adil Baig for Defendant No.2.

Maulvi Yousuf for Defendants Nos. 3 to 7.

Farooq H. Naek for Defendant No.8

Date of hearing: 13th May, 2002.

Lahore High Court Lahore

PLD 2002 LAHORE HIGH COURT LAHORE 1 #

P L D 2002 Lahore 1

Before Falak Sher, C J

Mrs. AHMAD RIAZ SHAIKH ‑‑‑Petitioner

Versus

CHAIRMAN, NAB and others‑‑‑Respondents

Writ Petition No. 15183 of 2001, decided on 4th October, 2001.

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

‑‑‑‑S. 16‑A(b)‑‑‑Criminal Procedure Code (V of 1898), Ss. 177, 178, 179 & 180‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑Chairman, National Accountability Bureau, exercising lawful option spelling out the reasons, had chosen the venue of Court at Attock for filing Reference against the accused‑‑‑Petitioner, spouse of the accused, sought transfer of case of the accused from Attock to Lahore on the ground of discrimination viz. lack of any special circumstance or reason for transfer of the case from Lahore to Attock Court and contended that in terms of Ss. 177, 178, 179 & 180, Cr.P.C. the trial should be conducted at Lahore from where majority of the prosecution witnesses and the co‑accused hailed and the lis originated, convenience of the accused in preference to that of the complainant and the prosecution and difficulties in hiring professionals of his own choice‑‑Validity‑‑‑Constitutional petition had been instituted labouring under an erroneous impression as if the case of accused had been transferred by the NAB Authorities from Lahore to Attock‑‑‑Documents on record revealed that though arrest of the accused was effected from Lahore but by exercising lawful option with reasons, National Accountability Bureau chose the venue of trial at Attock‑‑‑Nothing had been canvassed by the petitioner tending to suggest that any extraneous consideration weighed with the Chairman National Accountability Bureau to file the Reference against the accused at Attock‑‑-No question of transfer, thus, was involved at the end of the National Accountability Bureau in terms of S.16‑A, National Accountability Bureau Ordinance, 1999 in circumstances‑‑‑National Accountability Bureau Ordinance, 1999 being a special law in terms of S.17, the provisions of Criminal Procedure Code, 1898 had been rendered applicable save to the extent of inconsistency‑‑‑High Court, however, while turning down the Constitutional petition and declining the transfer of the case observed that trial Court seized of the lis was required to finalize the proceedings expeditiously on day‑to‑day basis, five days a week, within the prescribed statutory period provided no hindrance was caused by the accused side.

Chairman, National Accountability Bureau, Islamabad v. Mian Muhammad Abbas Sharif and 7 others PLD 2001 Lah. 157 and Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 ref.

Aitzaz Ahsan and Rana Ijaz Ahmad Khan for Petitioner.

Sher Zaman Khan, Dy. A. G., Ahmer Bilal Sufi, Dy. Prosecutor General, NAB with M. Akram Qureshi, Special Prosecutor, NAB.

PLD 2002 LAHORE HIGH COURT LAHORE 10 #

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PLD 2002 LAHORE HIGH COURT LAHORE 19 #

P L D 2002 Lahore 19

Before Maulvi Anwarul Haq and Ali Nawaz Chowhan, JJ

KHALIL‑UR‑REHMAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 264‑T of 1999, heard on 29th August, 2001

(a) Anti‑Terrorism Act (XXVII of 1997)‑‑

‑‑‑‑Ss. 7 & 38‑‑‑Terrorist act committed prior to promulgation of Anti-Terrorism Act, 1997‑‑‑Conviction under S.7 of Anti‑Terrorism Act, 1997‑‑Validity‑‑Case could have been tried by Anti‑Terrorism Court but the punishment could not have been given under the provisions of new dispensation and in such cases the existing law at the relevant time had to be applied‑‑‑Conviction under S.7 of Anti‑Terrorism Act, 1997 was set aside in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)(c)‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Appreciation of evidence‑‑‑Diminishing liability, principle of‑‑‑Applicability‑‑‑Single fire was attributed to the accused person‑‑‑Trial commenced in Special Court and conviction was awarded under S.7 of Anti‑Terrorism Act, 1997, whereas the offence was committed prior to promulgation of Anti‑Terrorism Act, 1997‑‑Validity‑‑‑There being no repetition of fire such fact did not ascribe intention to the accused for the murder‑‑‑Where element of provocation, nervousness, loosing self‑control etc. was present, the same was a case of diminishing liability and benefit of the same had to be extended to the accused person‑‑High Court altered the conviction from S.302(b), P.P.C. awarded by Anti-Terrorism Court to S.302(c) P.P.C. accordingly.

Muhammad Yousaf v. The State 1994 SCMR 1733; Joseph Bullard 'v. The Queen PLD 1958 PC 36; Gul Zaman v. The State 1995 P. Cr. L J 623; Ahmad Khan v. Nazir Ahmad 1999 SCMR 803; Shamshad v. The State PLD 1963 SC 740 and Abdul Haq v. The State PLD 1996 SC 1 ref.

Sh. Waqar Azeem Siddiqui for Appellant.

Syed Sajjad Hussain, A.A.G. for the State.

Date of hearing: 29th August, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 28 #

P L D 2002 Lahore 28

Before Maulvi Anwarul Haq and Mian Hamid Farooq, JJ

HAKIM ALI ---Appellant

Versus

MEMBER POWER, WAPDA and others---Respondents

Intra-Court Appeal No. 197 of 1993, heard on 24th May, 2001.

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

----S. 3---Intra-Court Appeal---New plea, raising of---When a person has not pleaded something and has not built up his case on the specific assertion, he is precluded from taking such a plea before the appellate forum.

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

----Art. 24(3)(e)(ii)---Protection of property rights---Compulsory acquisition---Principles---Nothing in Art. 24 of the Constitution affects validity of any law provided for the acquisition of any class of property for the purposes of providing housing and public facilities and services such as road, water supply, sewerage, gas and electric power to all or any specified class of citizens.

----Arts. 4 & 24---Expression 'except in accordance with law' and 'save in accordance with law occurring in Art. 24 of the Constitution ---Implication---If a person or Authority is performing the functions and doing the WO in accordance with law, then Arts. 4 & 24 of the Constitution hays' no applicability in the set of circumstances---Necessary implication of the expression is that when a person is deprived of his property under the authority of law and according to the provisions of law, such person has no grievance or ground to complain about the action under the provisions of the Constitution---Right to hold property is subject to reasonable conditions which include restriction of the same being acquired in accordance with law.

Sheikh Muhammad Anwar and another v. Pakistan through the Secretary, Ministry of Communication, Islamabad and 2 others PLD 1989 Kar. 45 ref.

(d) Pakistan Water and Power Development Authority Act (XXXI of 1958)---

----S.14--Electricity Act (IX of 1910), S.12---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court .Appeal---Acquisition of land---Installation of electric poles---Entering upon private land---Dispute was regarding installation of electric poles and towers in the land owned by the appellants--Constitutional petition filed by the appellant was dismissed by High Court--Plea of the appellant was that the Authority had no power under the law to enter private land unauthorisedly---Validity---Authority had the power and backing of law for installation of electric poles and also for that purpose had the authority to enter upon the land for erecting poles, lay wires to energize the towers for the supply of electricity and transmit the same---Entry as well as the installation of towers could not be considered to be unauthorized, as the authority had ample powers to undertake all the actions, which were duly protected under the law and no exception could be taken by any person--Judgment passed by High Court was in accordance with law and intra-Court appeal was dismissed.

Muhammad Aslam Khan v. West Pakistan Province PLD 1962 Lah. 925; Kadir Bakhsh v. WAPDA 1989 CLC 1615; Ghiasuddin v. Executive Engineer, WAPDA 1983 CLC 200 and Nazar Muhammad v. WAPDA PLD 1991 SC 715 ref.

Malik Saeed Hassan for Appellant.

Muhammad Ilyas Khan for Respondents.

Date of hearing: 24th May, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 33 #

P L D 2002 Lahore 33

Before Ali Nawaz Chauhan, J

MUKHTIAR MUHAMMAD and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 536‑T of 2000, decided on 28th August, 2001

(a) Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑S. 7‑A‑‑‑Expression 'vehicles‑snatching or lifting' as given in S.7‑A, Anti‑Terrorism Act, 1997‑‑‑Connotation‑‑‑Such expression implies presence, of driver and other occupants in car while it is in motion or otherwise and is lifted or snatched by force after ousting the occupants.

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

‑‑‑‑S. 7‑A‑‑‑Penal Code (XLV of 1860); S.381‑A‑‑‑Car theft‑‑‑Whether such act was covered under S.7‑A of Anti‑Terrorism Act, 1997‑‑‑Where theft of car took place after replacement of its ignition switch without lifting or snatching, while the same was parked in a street, such act was covered under S.381‑A, P.P.C.

‑‑‑‑5. 7‑A & B‑‑‑Penal Code (XLV of 1860), Ss. 381‑A & 511‑‑‑Appreciation of evidence‑‑‑Car theft, attempt of‑‑‑Conviction under S.7‑A of Anti-Terrorism Act, 1997‑‑‑Attempt of car theft was made by the accused persons by replacing ignition switch while the same was parked in a street‑‑‑Trial of the case was commenced under S.7‑A of Anti‑Terrorism Act, 1997, by the Special Court and the accused persons were convicted by the Court‑‑Validity‑‑‑Where the prosecution case was destitute of the allegation of car snatching or lifting and the same fell squarely under S.381‑A, P.P.C., the Special Court could not proceed in such case‑‑‑Vehicle in question was not actually stolen and the accused persons had run away and only an attempt to steal the car had been made‑‑‑High Court converted the conviction from S.7‑B of Anti‑Terrorism Act, 1997, to S.381‑A read with S.511, P.P.C. and awarded sentence of two years with fine in circumstances.

Abdul Jabbar Awan for Appellants Nemo for the State.

Date of hearing: 15th August, 2001

PLD 2002 LAHORE HIGH COURT LAHORE 36 #

P L D 2002 Lahore 36

Before Asif Saeed Khan Khosa, J

MUHAMMAD ISHFAQ alias PAPPU‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2405‑B of 2001, decided on 29th October, 2001.

(a) Constitution of Pakistan (1973)‑‑

‑‑‑‑Arts. 4 & 9‑‑‑Surrender of Illicit Arms Act (XXI of 1991), Ss. 4, 5 & 7‑‑‑Surrender of illicit, arms‑‑‑Right of individuals to be dealt with in accordance with law‑‑‑Security of person‑‑‑'Inalienable right' of the citizens to be dealt with in accordance with law enshrined in Art. 4 and the Fundamental. Right embodied in Art. 9 of the Constitution guaranteeing that no person shall be deprived of, his liberty save in accordance with law which presupposes that while dealing with a citizen the State shall invoke the correct law and a citizen's liberty shall not be snatched away or curtailed by the State by using or utilising' a law against him which in fact has no application against such a citizen‑‑‑High Court's Constitutional obligation is to preserve, protect and defend the Constitutional and legal rights of the citizens and as far as possible or practicable High Court would not be failing in that commitment and duty‑‑‑Possession of illicit weapons by citizens may be hazardous to good health and security of a society and their use a menace but at the same time an illicit utilization of a law like Surrender of Illicit Arms Act, 1991 for curbing such a peril may be no less harmful to the legal regime of the same society as well as to the Constitutional rights of its citizens.

Possession of illicit weapons by citizens may be hazardous to good health and security of a society and their use a menace but at the same time an illicit utilization of a law for curbing such a peril may be no less harmful to the legal regime of the same society as well as to the Constitutional rights of its citizens. The 'inalienable right' of the citizens to be dealt with in accordance with law enshrined in Article 4. of the Constitution and the Fundamental Right embodied in Article 9 of the Constitution guaranteeing that no person shall be deprived of his liberty save in accordance with law presupposes that while dealing with a citizen the State shall invoke the correct law and a citizen's liberty shall not be snatched away or curtailed by the State by using or utilizing a law against him which in fact haste application against such a citizen. Unthoughtful, or may, be callously deliberate use of one such law viz. Surrender of Illicit Arms Act, 1991 against the citizens is the subject‑matter of the present case. Illicit use of that law by the State against its citizens is so widespread these days and arbitrary deprivation of the citizen's liberty by invocation of that law is so rampant that it is not possible for High Court to ignore the same on the larger consideration of public policy or, when confronted with a legal challenge in that regard, to look the other way. After all it is High Court's Constitutional obligation to preserve, protect and defend the Constitutional and legal rights of the citizens and as far as possible or practicable High Court would not, be failing in that commitment and duty.

Government of Sindh through the Chief Secretary and four others v. Raeesa Farooq and 5 others 1994 SCMR 1283 fol.

(b) Surrender of Illicit Arms Act (XXI of 1991)‑‑‑

‑‑‑‑Preamble‑‑‑West Pakistan Arms Ordinance (XX of 1965), Preamble‑‑Possession of unlicensed weapons‑‑‑Cognizance‑‑‑Principles‑‑‑Scope and application of Surrender of Illicit Arms Act, 1991‑‑‑Extent‑‑‑Interpretation of both the statutes‑‑‑Provisions of the Surrender of Illicit Arms Act, 1991 do not appear in any manner to be overlapping or superseding in their effect vis-a‑vis the provisions of West Pakistan Arms Ordinance, 1965‑‑‑Provisions of Surrender of Illicit Arms Act, 1991 are in addition to and not in derogation of the provisions of West Pakistan Arms Ordinance, 1965 as the Act of 1991 creates and constitutes an offence distinct from those catered for by the Ordinance of 1965‑‑‑West Pakistan Arms Ordinance, 1965 is still the general law of the land providing for possession of unlicensed weapons and its punishment‑‑‑Surrender of Illicit Arms Act, 1991 is a special law catering only for the special and peculiar circumstances mentioned therein‑‑Possession of unlicensed weapons still remains punishable under the West Pakistan Arms Ordinance, 1965 and it is only those who had failed to surrender illicit arms during the grace period, who can be caught within the net spread by the Surrender of Illicit Arms Act, 1991‑‑‑Heavier and longer punishments provided by the Surrender of Illicit Arms Act, 1991, thus, make a lot of sense inasmuch as possession of such weapons is culpable but stubborn and obstinate failure to surrender the same despite provision of a grace period and indemnity is more culpable as the same reflects upon desperate character of the offender‑‑‑Principles.

A careful scrutiny of the relevant provisions of the West Pakistan Arms Ordinance, 1965 and the Surrender of Illicit Arms Act, 1991 leaves no ambiguity and it appears to be quite clear that the West Pakistan Arms Ordinance, 1965 is still the general law of the land providing for possession of unlicensed weapons and its punishment. As against that the Surrender of Illicit Arms Act, 1991 is a special law catering only‑ for the special and peculiar circumstances mentioned therein. i.e. affording an opportunity for surrendering of illicit arms within a ,grace period and for avoiding punishment for possession of such illicit arms by taking advantage of the indemnity provided during that grace period. Possession of unlicensed weapons still remains punishable under the Pakistan Arms Ordinance, 1965 and it is only those who had failed to surrender illicit arms during the grace period who can be caught within the net spread by the Surrender of Illicit Arms Act, 1991. The heavier and longer punishments provided by the Act, 1991 thus make a lot of sense inasmuch as possession of such weapons is culpable but stubborn and obstinate failure to surrender the same, despite provision of a grace period and indemnity, is more culpable as the same reflects upon desperate character of the offender. When looked at from the angle the provisions of the Surrender of Illicit Arms Act, 1991 do not appear in any manner, to be overlapping or superseding in their effect vis‑a‑vis the provisions of the Pakistan Arms Ordinance, 1965. In fact the provisions of the Act of 1991 are in addition to and not in derogation of the provisions of the Ordinance of 1965 as the Act of 1991 creates and constitutes an offence distinct from those catered for by the Ordinance of 1965. Such an interpretation not only harmonies the two statutes and fosters their coexistence but the same also fits into the scheme of the Legislature contemplated in the provisions of section 25 of the West Pakistan Arms Ordinance, 1965 and section 3 of the Surrender of Illicit Arms Act, 1991. The law of interpretation of statutes loathes inferring redundancy of an existing statute or a statutory provision. The interpretation given above avoids such a redundancy.

‑‑‑‑Law of interpretation of statutes loathes inferring redundancy of an existing statute or a statutory provision.

(d) Surrender of Illicit Arms Act (XXI of 1991)‑‑‑

‑‑‑‑Ss. 7, 4 & 5‑‑‑West Pakistan Arms Ordinance (XX of 1965), Preamble‑‑Surrender of illicit arms‑‑‑Penalty‑‑‑Essentials‑‑‑Person has to be in possession of the relevant illicit arms on or before the target date before he can be penalized for failing to surrender the same-‑‑Only such a failure to surrender illicit arms after failing to avail of the grace period and indemnity has been made culpable and punishable by the provisions of Ss. 4, 5 & 7 of the Surrender of Illicit Arms Act, 1991‑‑‑In order to invoke S.7 of the surrender of Illicit Arms Act, 1991 against any person the State/prosecution must have evidence or material in its possession to allege and establish that the said person had the relevant illicit arms in his possession on or before the target date and that he has failed to surrender the same despite the grace period and an indemnity having been offered to him in that regard‑‑Principles.

The essence of the offence contemplated, by and made punishable under section 7 of the Surrender of Illicit Arms Act, 1991 is in contravention he provisions of section 4 or 5 of that Act and the language used in the said provisions unmistakably points out that a person has to be in possession of the relevant illicit arms on or before the target date before he can be penalized for failing to surrender the same. It is only such a failure to surrender illicit arms after failing to avail of the grace period and indemnity that has been made culpable and punishable by the provisions of sections 4, 5 and 7 of that Act. Thus, the words "or fails to surrender illicit arms" figuring in section 7 of that Act after the words "Whoever contravenes the provisions of section 4 or section 5" do not have art independent meaning or connotation and the said words cannot be lifted out of the context so as to create or constitute an independent offence or to infer or attribute an overlapping or superseding effect to the same vis‑a‑vis the relevant provisions of the West Pakistan Arms Ordinance, 1965. In this context it cannot be lost sight of that according to section 3 of the Act of 1991: "The provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force‑‑‑‑" Even otherwise if the purpose of adding the words "or fails to surrender illicit arms" in section 7 of the Act of 1991 was to cater for a situation other than that contemplated by a, violation of the provisions of section 4 or 5 of that Act then it cannot be easily or readily accepted that by adding the said words the Legislature had intended to indirectly amend the relevant. provisions of the Ordinance of 1965. If the Legislature wanted to achieve that result then there was nothing to stop the Legislature from suitably amending the Ordinance of 1965 itself in that regard so as to achieve the desired, objective. Thus, the argument advancing a concept of such an indirect, nay perverted manner of legislation cannot be accepted except with a grain of salt.

What is made punishable under section 7 of the Surrender of Illicit Arms Act, 1991 is failure to surrender illicit arms after the target date fixed and notified by the Federal Government for the purposes of the provisions of sections 4 and 5 of that Act if such illicit arms were in possession of a person on or before that target date and he had failed to avail of the grace period and the indemnity in that regard. Thus, in order to invoke section 7 of that Act against any person the State/prosecution must have evidence or material in its possession to allege and establish that the said person had the relevant illicit arms in his possession on or before the target date and that he had failed to surrender the same despite the grace period and an indemnity having been offered to him in that regard.

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

‑‑‑‑S. 497(2)‑‑‑Surrender of Illicit Arms Act (XXI of 1991), Ss. 7, 4 & 5‑‑Bail, grant of‑‑‑Possession of illicit arms‑‑‑Prosecution had no independent material or evidence available on its record to allege and establish that the accused had the relevant illicit arms in his possession on or before the target date and that he had failed to surrender the same despite the grace period and 'an indemnity having been offered to him in that regard‑‑‑Prima facie reasonable grounds did not exist to believe the involvement of the accused in the offence allegedly committed by him and there were sufficient grounds for further inquiry into his guilt within the purview of S.497(2), Cr.P.C.‑‑Accused, in circumstances, could, at worst, be saddled with the responsibility of committing an offence under S.13, West Pakistan Arms Ordinance, 1965 which offence was bailable ‑‑‑Accused was admitted to bail subject to furnishing bail bond in the sum of Rs. 50,000 with one surety in the like amount to the satisfaction of the Trial Court‑‑‑High Court observed that responsibility for putting the citizens in all such cases to more hardship than was legally due and for depriving them of their liberty where the material against them disclosed only a bailable offence in which case bail was to be claimed by them as of right, shall have to be borne by the State which, in its zeal to eradicate lawlessness, would be perceived to have itself added to the lawlessness by invoking and utilising a wrong law for a short term advantage.

High Court observed that during their recent campaign to recover illicit arms and to rid the society of this menace the Federal and Provincial Governments had undertaken a massive arid concerted operation is that regard throughout the country and during such operation thousands of illicit arms were claimed to have been recovered. In all such cases of recovery criminal cases were registered against the offenders and in almost all of these cases, or at least in most of such cases coming up before the High Court, it is section 7 of the Surrender of Illicit Arms Act, 1991 that has been invoked against the offender and not section 13 of the West Pakistan Arms Ordinance, 1965. This has probably been done because the former offence is non‑bailable and carries a heavier and longer punishment than the latter which is bailable and carries a relatively lighter punishment. However, in most of these cases scant attention has been paid to the fact that the prosecution is possessed of virtually no independent evidence or material to allege or establish that the offender was also in possession of the illicit arms on or before the target date and that he had failed to surrender the same by the target date and had not availed of the grace period and the indemnity. Given the said state of affairs the result of all those cases may not be different from the present one. If that be so then the responsibility for putting the citizens in all such cases to more hardship than was legally due and for depriving them of their liberty where the material against them disclosed only a bailable offence in which case bail is to be claimed by them as of right, shall have to be borne by the State which, in its zeal to eradicate lawlessness, would be perceived to have itself added to the lawlessness by invoking and utilizing a wrong law for a short‑term advantage. It may be remembered in this context that it is by now a cliche or a hackneyed truism that one may laugh at the law but the law will have the last laugh.

Hakim Inayat Ullah Khan v., The State 1993 PCr.LJ 1010; Sh. Muhammad Qaisar v. The State 1994 PCr.LJ 88 and Shaukat Ali v. The State 1994 P Cr. L J 2527 rel.

Altaf Hussain Bhutta for Petitioner.

Muhammad Qasim Khan, Asstt. A.G. with Javed Iqbal for the State.

Date of hearing: 29th October, 2001

PLD 2002 LAHORE HIGH COURT LAHORE 48 #

P L D 2002 Lahore 48

Before Tanvir Bashir Ansari, J

GHULAM MUHAMMAD ‑‑‑Petitioner

Versus

ELLAHI BUX‑‑‑Respondent

Civil Revision No. 137 of 1985, decided on 1st October, 2001.

(a) Punjab Settlement Manual‑‑‑

‑‑‑‑Para. 173‑‑‑Gazetteer of Dera Ghazi Khan‑‑Term 'Adhlapi'‑‑Connotation‑‑‑Term "Adhlapi" is form of tenure under which proprietary rights are acquired in land, through agreement whether oral or written by reclamation or expenditure of capital in sinking a well ‑‑‑Adhlapi is very common form, arid under such agreement the proprietor of a well estate not possessing a well gives half of his land in proprietary rights to an outsider who sinks a well, and thereupon acquires the proprietary right of half the well, and of the land attached to it.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 75‑‑‑Document‑‑‑Proof of‑‑‑No objection to the admissibility of the document‑‑‑Effect‑‑‑Where neither the agreement was admitted by the other party nor the Trial Court or the Lower Appellate Court relied upon the same, even if no objection to admissibility of the document was taken, the Court had power to examine its evidentiary value.

Abdul Karim v. Mst. Kohi Noor Begum and another 1981 CLC 1055 ref.

‑‑‑‑Art. 100‑‑‑Thirty years old document creating title in property‑‑‑Per se admissibility of such document‑‑‑Prerequisites‑‑‑Before any presumption of truth can be attached to such a document, it has to be satisfactorily demonstrated that such a document has been acted upon and is supported by possession, also it should be shown that the document has been produced from proper custody where it should have been and that it was in consequence of such document that possession was given‑‑‑Where from the evidence on the record such conditions did not appear to have been fulfilled, no presumption can be drawn in favour of the document.

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

‑‑‑‑Ss. 39 & 45‑‑‑Record of Rights‑‑‑Value‑‑‑If there is a conflict between the entries in the Khasra Gardawari and the entries in the Record of Rights, the latter prevails.

Muhammad Aslam v. Khudadad 1982 SCMR 511 rel.

(e) Punjab Settlement Manual‑‑‑

‑‑‑ Para. 173‑‑‑Transfer of Property Act (IV of 1882), S.54‑‑‑Gazetteer of Dera Ghazi Khan‑‑‑" Adhlapi tenure" ‑‑‑"Sale"‑‑‑Distinction‑‑‑Adhlapi tenure does not amount to a sale and is clearly distinguishable from the incidents of a sale, at best same is on executory contract.

Allah Rakhia and others v. Ahmad AIR 1923 Lah. 70 ref.

(f) Adverse possession‑‑‑

-‑Plea of adverse possession‑‑‑‑Acceptance of the title as Adhlapidars would defeat claim of adverse possession‑‑‑Where the entries in the Revenue Record showed the party to be tenants of the land in question, the party had failed to prove adverse possession over the land.

(g) Punjab Settlement Manual‑‑‑

‑‑‑‑Para. 173‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Gazetteer of Dera Ghazi Khan‑‑‑Revision‑‑‑Concurrent findings of fact by the Courts below‑‑Plaintiffs claimed right in the suit property on the basis of Adhlapi agreement‑‑‑Such agreement was denied by the defendants‑‑‑Trial Court having found the agreement not executed, dismissed the suit and the judgment and decree passed by the Trial Court was maintained by the Appellate Court‑‑‑Validity‑‑‑Rule of non‑interference in the concurrent findings of fact of the lower Courts was not an inflexible rule of administration of justice yet such an inference must be declined when the findings of the lower Courts did not suffer from any misreading or non-reading of evidence and was based upon appreciation of evidence on the record‑‑‑High Court declined to interfere with the concurrent findings of fact by the Courts below‑‑‑Revision was dismissed in circumstances.

Ghulam Muhammad and others v. Mehtab Baig and others 1983 SCMR 849; Khadim Hussain and others v. Mst. Sarwar Jan and others 1999 MLD 824; Muhammad Hanif and 16 others v. Muhammad Latif Khan 2001 MLD 493; Inayat Ullah v. Muhammad Aslant Khan and 2 others 1975 SCMR 314; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 and Ghulam Farid v. Muhammad Aslam Khan and 26 others 2000 MLD 1737 ref.

(h) Words and phrases‑‑

----Adhlapi"‑‑‑Term "Adhlapi"‑‑‑Connotation.

Sh. Najam Ali for Petitioner.

Mumtaz Mustafa for Respondent.

Date of hearing: 1st October, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 56 #

P L D 2002 Lahore 56

Before Mian Hamid Farooq, J

MUHAMMAD SAMIULLAH KHAN‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SARGODHA‑‑‑Respondent

Writ Petition No. 11398 of 2001, decided on 22nd June, 2001.

Constitution of Pakistan (1973)‑‑‑

-‑‑‑Art 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Order passed by Court of competent jurisdiction‑‑‑Order passed by Appellate Court in exercise of revisional jurisdiction was assailed in the Constitutional petition‑‑‑Validity‑‑‑Where the order was although illegal, but passed with jurisdiction, then the same could not be assailed in Constitutional petition‑‑Constitutional petition was competent against such revisional order if order passed by the revisional Court was wholly void or coram non-judice‑‑‑Except for such orders in no other case an order passed by Appellate Court as a revisional Court could be challenged through filing of the Constitutional petition‑‑‑Order passed by the Appellate Court, in the present case, was neither void nor without jurisdiction and the same had been passed by the Court having jurisdiction in the matter‑‑‑High Court declined to interfere with the order passed by the Appellate. Court‑‑‑Constitutional petition was dismissed in limine.

Hafiz Abdus Salam PLD 1991 FSC 65 distinguished.

Noor Muhammad v. Sarwar‑Khan and 2 of others PLD 1985 SC 131; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 and Muhammad Khan v. Ghulam Fatima 1991 SCMR 970 ref.

Taqi Ahmed Khan for Petitioner.

PLD 2002 LAHORE HIGH COURT LAHORE 58 #

P L D 2002 Lahore 58

Before Tanvir Bashir Ansari, J

MUHAMMAD AMIN‑‑‑Petitioner

Versus

SHAHRA and others‑‑‑Respondents

Civil Revision No. 318‑D of 1985, decided on 25th July, 2001.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 39‑‑-Entries in Jamabandi/Record of Rights whether foundation of title in property‑‑‑Entries in the Jamabandi would not provide foundation of title in property, but same were pieces of evidence to prove title‑‑‑Entries in the record of rights would not confer any right/title nor carry any presumption of truth and party in whose favour such entries were recorded must establish his right or title by adducing independent evidence.

Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890; Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988 and Abdul. Nabi and 29 others v. Jan Muhammad and 26 others 1998 CLC 1842 ref.

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

‑‑‑‑Ss. 4, 15 & 21‑‑‑Suit for pre‑emption‑‑‑Superior right of pre‑emption‑‑‑Findings of Appellate Court below that the pre‑emptor had been able to prove his being collateral of the vendee of suit property, was not based upon any sound principle of law‑‑‑Mutation of property by itself was not sufficient to prove the superior right of the pre‑emptor ‑‑‑Judgment and decree passed by the Appellate Court was set aside by High Court in exercise of its revisional jurisdiction.

Date of hearing: 25th. July, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 62 #

P L D 2002 Lahore 62

Before Tanvir Bashir Ansari, J

MANZOOR AHMAD and others‑‑‑Petitioners

Versus

MEMBER, BOARD OF REVENUE and others ‑‑Respondents

Writ Petition No. 661 of 1990/BWP, heard on 9th May, 2001.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑

‑‑‑‑Ss. 10, 11 & 13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Consolidation of holdings‑‑Exercise of Constitutional jurisdiction was not proper for agitating grievance against the allocation of land in consolidation proceedings‑‑‑Question whether before the consolidation operation, consent of land owners was obtained by the Consolidation Authorities was a question of fact which question could not be gone into by the High Court in exercise of its Constitutional jurisdiction‑‑‑Question as to which "Kills" number should have been given to the parties and which was not within the exclusive jurisdiction of Revenue Authority and High Court in exercise of its Constitutional jurisdiction could not sit in the judgment against such decision.

Muhammad Boota and others v. Feroz‑ud‑Din and others NLR 1981 (Rev.) 207; Sakhi Muhammad and others v. Noor Muhammad and others NLR 1998 SCJ 355; Ghulam Qadir v. Member, Board of Revenue, 1970 SCMR 292; Muhammad Hussain Munir v. Sikandar PLD 1974 SC 139; Amir Din and others v. Muhammad Malik 1981 SCMR 834; Falak Sher and others v. Shareef and others 1989 SCMR 1096; Barkat Ali v. Member, Board of Revenue 1992 MLD 1638; Ghulam Nabi v. Member, Board Revenue and others NLR 1980 SCJ 237 and Abdul Ghani v. Abdul Ghafoor and others 1993 MLD 1643 ref.

Sh. Hakim Ali for Petitioners.

Ch. Naseer Ahmed for Respondents.

Date of hearing: 9th May, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 67 #

P L D 2002 Lahore 67

Before Ali Nawaz Chowhan, J

SHAHID MEHMOOD and others---Petitioners

versus

PAKISTAN BAR COUNCIL and others---Respondents

Writ Petition No. 3023 of 2001, decided on 11th October, 2001.

(a) Educational institution---

---- Mushroom growth of educational institutions---Effect---Because of mushroom growth of educational institutions where commercial consideration is outweighing scholastic considerations, the standard of education has gone down---More emphasis is on showing of beautiful campuses and less on scholarship.

(b) Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S. 13---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Functions of Pakistan Bar Council---Scope---Conducting examination before enrolment as Advocate of Supreme Court---Pakistan Bar Council had made a policy whereby Law Graduates from Al-Khair University were to take examination in the subjects of Civil Procedure Code, 1908, and Criminal Procedure Code, 1898---Contention of the petitioners was that the Pakistan Bar Council could not give such examination as the same was against the functions reflected in S.13 of the Legal Practitioners and Bar Councils Act, 1973---Validity---Pakistan Bar Council exercises control and supervision over the Provincial Bar Councils under S.13 of the Legal Practitioners and Bar Councils Act, 1973 and amongst its functioning is to promote legal education and prescribe standards of such education as well as to recognize Universities whose degrees are to be considered as proper qualification for enrolment as an Advocate of all types and not merely Advocates of the Supreme Court---Due to overall recession in cadre intellectuality and sophistry in the profession of law, the society is put to suffering---Law on important current topics is not developing as it should and in the subordinate Courts, the situation is worse---Good majority of the practitioners institute their cause without acquainting themselves with the principles on the subject and without studying the latest case-law---Approach of such practitioners is that of trial and error, and this not only makes the litigants suffer, the time of the Courts is also wasted, with the result that the litigation is increasing and its burdens as well---Justice, therefore, is the victim and rule of law is the sufferer---Legal practice is a noble profession practised by people who are experts in their areas of work and in the procedural mechanics---Emphasis of the Pakistan Bar Council on standards augurs well for the profession---High Court declined to interfere with the policy formulated by the Pakistan Bar Council---Constitutional petition was dismissed in circumstances.

Sheikh Zamir Hussain and Muhammad Amir Khan for Petitioners.

Malik Rab Nawaz Noon for the Pakistan Bar Council

PLD 2002 LAHORE HIGH COURT LAHORE 74 #

P L D 2002 Lahore 74

Before Mian Nazir Akhtar and Mian Muhammad Najam‑uz‑Zaman, JJ

Begum NUSRAT BHUTTO through Daughter Ms. Sanam Bhutto, 194 Queen Gali, London‑‑‑Appellant

versus

THE STATE through Chairman, National Accountability Bureau‑‑‑Respondent

Criminal Appeal No.694 of 2001, decided on 8th October, 2001.

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

‑‑‑‑S. 32‑‑‑Appeal, filing of‑‑‑Locus standi‑‑‑Appeal filed by third person on behalf of the convict‑‑‑Trial was conducted in absentia and the accused person was convicted by the Trial Court‑‑‑Daughter of the convict filed the appeal on the ground that the convict was suffering from mental ailment and was unable to file the same‑‑‑Plea raised by the daughter of the convict was that where any procedure was not forbidden by law, the same could be adopted to secure the interests of justice‑‑‑Validity‑‑‑Where law provided a thing to be done in a particular manner, it ought to be done in that manner or not at all‑‑‑Filing of appeal was within the realm of substantive and not the procedural law‑‑‑Principle that a procedure not expressly prohibited was deemed to be allowed could not be pressed into service to clothe a third person with a right to file appeal on behalf of convict‑‑‑Appeal was dismissed in circumstances.

Nur Elahi v. The State PLD 1966 SC 708 distinguished.

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

‑‑‑‑S. 32‑‑‑Appeal‑‑‑Maintainability‑‑‑Proclaimed offender; failure to surrender before Court‑‑‑Trial was conducted in absentia and accused convicted‑‑‑Appeal was filed on behalf of the convict, without his appearance in person before the Appellate Court‑‑‑Validity‑‑‑Convict was bound under the law, to surrender before the Court to undergo the sentence of imprisonment passed against him/her‑‑‑Convict who was a fugitive from law was not entitled to invoke the provisions of S.32 of National Accountability Bureau Ordinance, 1999, to challenge his conviction‑‑‑Appeal was not maintainable in circumstances.

Mohtarma Benazir Bhutto, M.N.A., leader of the Opposition, Bilawal House, Karachi v. The State through Chief Ehtesab Commissioner 1999 SCMR 1619 and Mohtarma Benazir Bhutto and another v. The State 1999 SCMR 2726 distinguished.

Haq Nawaz v. The State 1999 PCr.LJ 1381 and Naq Nawaz and others v. The State and others 2000 SCMR 785 ref.

‑‑‑‑S. 32‑‑‑Appeal, filing of‑‑‑Plea of suffering from mental disease by the convict‑‑‑Trial was conducted in absentia and accused was convicted‑‑Daughter of the convict filed appeal on behalf of the convict for the reason that the convict was suffering from severe chronic "progressive senile dementia "‑‑‑Plea raised by the daughter of the appellant was that the convict was not possessed of her senses and was not conscious of her rights and obligations under the law‑‑‑Effect‑‑‑Where the convict was really not possessed of her senses, she might avail of the remedy of appeal as and when she would regain normalcy, after placing on record reliable medical evidence to establish her continuous ailment‑‑‑Delay in filing of the appeal could be decided in the light of quality of material/medical evidence brought on record‑‑‑Appeal was dismissed in circumstances.

Raja Muhammad Anwar for Appellant.

M. Asad Manzoor Butt for the State.

PLD 2002 LAHORE HIGH COURT LAHORE 78 #

P L D 2002 Lahore 78

Before Man Nazir Akhtar, J

MUMTAZ HUSSAIN ‑‑‑Petitioner

versus

DEPUTY INSPECTOR‑GENERAL, FAISALABAD and 7 others‑‑‑Respondents

Writ Petition No.21805 of 2000, heard on 25th October, 2001.

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

‑‑‑‑Ss. 154 & 176‑‑‑F.I.R. registration of‑‑‑Enquiry conducted by Magistrate‑‑‑Effect‑‑‑Where death was caused in police custody, mere fact that enquiry was conducted by Magistrate regarding cause of death, would not bar registration of criminal case under S.154, Cr.P.C.

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

‑‑‑‑Ss. 174 & 176‑‑‑Death in police custody‑‑‑Inquiry into cause of death by Magistrate‑‑‑Scope‑‑‑Where deceased was in police custody, inquiry into cause of death of the deceased can be held by Magistrate under the provisions of S.176, Cr.P.C.‑‑‑Such inquiry can be either instead of or in addition to the investigation held by police officer under S.174, Cr.P.C.

Khuda Bakhsh v. Province of West Pakistan PLD 1957 Lah. 662 rel.

‑‑‑‑Ss. 154, 174, 176 & Chap. XIV [Ss. 154 to 176]‑‑F.I.R., registration of‑‑‑Death caused in police custody‑‑‑Judicial inquiry‑‑‑Opinion of Inquiry Officer‑‑‑Effect‑‑‑Registration of criminal case is independent right of aggrieved person‑‑‑Such person can report the matter to incharge of concerned police station, who is bound under S.154, Cr:P.C. to record his report and conduct investigation in accordance with law‑‑‑Opinion qua the cause of death is not binding on police officer holding investigation under Chap. XIV, Cr.P.C. or Court of law holding trial of accused person‑‑Inquiry report may be relied upon by prosecution or defence and may be given due weight if the conclusions arrived at by the Magistrate are consistent with the evidence brought on record‑‑‑During investigation or trial, police officer or Court of law, as the case may be, can legitimately arrive at a contrary finding in the light of evidence brought on record.

Shera v. The State and 3 others 1972 PCr.LJ 626 and Mst. Ghulam Zuhran v. Superintendent of Police, Rahimyar Khan and others 1989 PCr.LJ 1826 ref.

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

‑‑‑‑Ss. 154, 176, 200 & Chap. XIV [Ss. 154 to 176]‑‑‑Death in police custody‑‑‑Judicial inquiry‑‑‑Private complaint not barred‑‑‑Apart from registration of criminal case, it is also open to aggrieved person to file private complaint‑‑‑Exoneration of accused in inquiry under S.176, Cr.P.C. does not constitute bar even to a private complaint which is another mode of bringing culprits for trial before Court of competent jurisdiction.

Mst. Rabia v. Mr. J. Samual, A.S.‑I. and 10 others 1986 MLD 1196 ref.

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

‑‑‑‑Ss. 154 & 176‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Registration of F.I.R.‑‑‑Police torture‑‑‑Death in police custody‑‑Judicial inquiry exonerating accused persons from charge of murder of the person who died in police custody‑‑‑Complainant and eye‑witnesses had seen police giving Chhitter blows on buttocks of the deceased‑‑‑Effect‑‑‑Cause of death was relevant qua the offence under S.302, P.P.C. but it had no bearing qua other offences of illegal arrest and confinement of deceased and injuries caused to him during police custody‑‑‑Criminal case, in the present case ought to have been registered by police under the relevant provisions of Penal Code, 1860, including Ss.302 & 342, P.P.C.‑‑‑High Court directed Senior Superintendent of Police to register criminal case against accused police officials‑‑‑Constitutional petition was allowed in circumstances.

Bashir Abbas Khan for Petitioner.

Mian Sikandar Hayat for Respondent No.5.

M. Hanif Khatana, Addl. A.‑G. for Respondents Nos. 5 to 7.

Date of hearing: 25th October, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 84 #

P L D 2002 Lahore 84

Before Ali Nawaz Chowhan, J

Malik ZAFAR YOUSAF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No. 146 of 2001, decided on 29th October, 2001

(a) Criminal trial‑‑‑

‑‑Procedure to be followed‑‑‑Provisions of Criminal Procedure Code, 1898, have to be followed in a regular forum, in letter and spirit in the criminal trial.

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

‑‑‑‑Ss. 190 & 344‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.23‑‑‑Cognizance of offence by Magistrate‑‑‑Transfer of case from Special Court to the Court of ordinary jurisdiction‑‑‑Concurrent jurisdiction of Sessions Court and Magistrate of First Class‑‑‑Sessions Judge, after return of the case from Special Court, entrusted the same to the Court of Additional Sessions Judge‑‑Such entrustment was objected to on the ground that the case had to be entrusted first to the Court of Magistrate as by such entrustment the accused would lose a forum of appeal‑‑‑Validity‑‑‑Where the Magistrate and the Sessions Court had concurrent jurisdiction in the matter, propriety demanded that the Magistrate should have applied his mind to the proposition and took a decision about the forum before the matter could have proceeded any further‑‑‑Where the Sessions Judge gave no reasons in the office order transferring the case to the Court of Additional Sessions Judge, such order of the Sessions Judge was set aside by the High Court and case was remanded to the Court of Magistrate‑‑‑High Court directed the Magistrate to consider the challan submitted by police and determine whether the matter would be tried by itself or by the Sessions Court‑‑‑Revision was allowed accordingly.

Rex v. Matoley and others AIR 1949 All. 1; Mehar Khan v. Yaqub Khan and another 1981 SCMR 267; The State v. Ghulam Qadir and 2 others PLD 1964 Pesh. 53; Ghulam Hussain and others v. The State 1985 PCr.LJ 2334 and Mian Safdar Khan and 3 others v. The State 1981 PCr.LJ 113 ref.

Muhammad Ilyas Siddiqi for Petitioner

Sajjad Hussain Shah, A.A.‑G

PLD 2002 LAHORE HIGH COURT LAHORE 88 #

P L D 2002 Lahore 88

Before Mian Saqib Nisar; J

MUHAMMAD IQBAL through Legal Heirs---Petitioner

versus

BASHIR AHMAD and 19 others---Respondents

Civil Revision No.212 of 1990 and Civil Revision No.30 of 1991, heard on 9th October, 2001.

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

----S.12---Suit for specific performance of agreement to sell---Conditional decree---Failure to deposit balance consideration amount---Effect---Where the balance consideration amount was not deposited, the suit would be deemed to have been dismissed and no decree for specific performance would be deemed to have been passed.

Muhammad Ishaq v. Muhammad Siddique PLD 1975 Lah. 909 ref.

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

----Ss. 4 & 21---Specific Relief Act (I of 1877), S.12---Pre-emption right--Valid sale not in existence ---Pre-emptors filed suit for pre-emption against the land on the basis of decree passed in suit for specific performance of agreement to sell---Suit for pre-emption was decreed in favour of the preemptors ---Validity---Where balance consideration amount was not deposited, decree passed in the suit for specific performance would be deemed to have never been executed and because of lack of sale mutation or sale-deed no valid title of ownership was passed on---No sale, in the present case, had taken place which could be pre-empted ---Only a sale of immovable property, under S.4 of the Punjab Pre-emption Act, 1913, could give rise to a cause of action to a would-be pre-emptor for maintaining an action, but where no sale had taken place, neither any pre-emption suit could be filed nor a decree could be competently, passed---Judgment and decree passed in favour of preemptor was void in circumstances.

----Ss. 4 & 21---Specific Relief Act (I of 1877), S.12---Civil Procedure Code (V of 1908), S.I1---Pre-emption right---Res judicata---Principle--Applicability---Where vendees were party to a suit, the judgment and decree passed in that suit would operate as res judicata qua the pre-emptors also, as the pre-emptors stepped into the shoes of the vendees and were deriving their title through them.

(d) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 3---Limited estate---Termination of limited ownership---Agreement to sell executed by limited owner---Validity---Where the limited ownership was terminated by virtue of S.3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, limited owner could not execute agreement to sell in year 1969, qua the entire property.

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

----S. 4---Specific Relief Act (I of 1877), S.12---Right of pre-emption, exercise of---Failure to get executed decree passed in suit for specific performance of agreement to sell---Effect---Where the decree was never executed, no sale had been made in favour of the vendees consequently no valid title by way of sale had been passed on to the vendees---Such sale could not be pre-empted.

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

----O. XXI, Rr. 97, 101 & 103---Questions arising as to title, right or interest in, or possession of suit property---Determination---Executing Court---Jurisdiction---Objection---Petitioner on account of decree passed in suit for permanent injunction filed by respondents had been adjudged owner of the suit property---Such question of title could be determined by Executing Court---No Court other than the Executing Court had jurisdiction to determine the matter.

Fakir Abdullah and others v. Government of Sindh and others PLD 2001 SC 131; Noorul Amin and another v. Muhammad Hashim and 27 others 1992 SCMR 1744; Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCMR 1908; Sheikh Ghulam Nabi and others v. Ejaz Ghani and others 1982 SCMR 651); Amiabai v. Ibrahim and 4 others PLD 1992 Kar. 270; Muhammad Zaman v. Yaseen 1986 CLC 1282 and Amin v. Haii Abdul Sattar and 21 others 1992 CLC 956 ref.

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

----S. 12(2) & O. XXI, R.97---Decree---Validity, and excitability--Determination---Questions as to excitability and validity thereof can be determined by Executing Court not only under O.XXI, R.97, C.P.C. but also under the provisions of S.12(2), C.P.C.

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

----S. 12(2) & O.XXI, R.97---Objection petition---Treating such application as application under S.12(2), C.P.C.--Validity---Where the Trial Court and Executing Court were same, objection petition under O.XXI, R.97, C.P.C. could be considered and treated as application under S.12(2), C.P.C.

(i) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)----

----S. 3---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Limited owner---Agreement executed by limited owner---Validity---Where the agreement was executed after termination of limited ownership, decree passed by Trial Court on the basis of the agreement was valid only to the extent of the property which the limited owner inherited.

Taki Ahmad Khan for Petitioner.

G. H. Khan for Respondents

Date of hearing: 9th October, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 95 #

P L D 2002 Lahore 95

Before Mian Nazir Akhtar and Mian Muhammad Najam-uz-Zaman, JJ

Dr. FAROOQ SATTAR -----Appellant

Versus

THE STATE and others-----Respondents

Criminal Appeals Nos. 1160 and 1159 of 2000, heard on 13th September, 2001.

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

----Ss.9(a)(vi) & 14(d)---Appreciation of evidence---Mere fact that the accused stood charged for trial in the Accountability Court did not give rise to a presumption of guilt in respect of offences under S.9(a)(vi) & (vii) of the National Accountability Bureau Ordinance, 1999---Unless the basic facts constituting "misuse" of authority as contemplated under S.9(a)(vi) of the said Ordinance were established, the accused could not be called upon to prove his innocence within the meaning of S. 14(d) of the Ordinance---Charge in the case was limited to the first part of S.9(a)(vi) of the Ordinance regarding misuse of authority in awarding contract to the firm and allowing it to collect octroi on goods imported from the Port Qasim source to which the contract did not allegedly relate---Said contract had been awarded to the Firm by the co-accused, Administrator of the Corporation and not by the accused---Incorporation of the words "Port Bin Qasim" in the agreement was also not specially ordered by the accused---Accused and his co-accused were not shown to have derived any benefit in the matter of award of contract to the Firm, who in fact had secured the interest of the Corporation by awarding the contract for recovery of octroi on the goods entering the limits of Corporation through rail or road including goods delivered at Port Qasim---Since the recovery through the officials of the Corporation was lesser, the Administrator of the Corporation had rightly adopted the other course of awarding contract to a party making a good offer, which was even confirmed by the Government of Sindh---Said contract was also declared by the Supreme Court to be lawful and valid and the judgment of the Sindh High Court a part of which was made basis for investigation and reference against the accused had been set aside---Very foundation upon which the superstructure of the prosecution case was built, thus, was razed to the in circumstances had failed to establish that the accused had misused his authority within the meaning of the provisions of S.9(a)(vi) of the Ordinance---Accused was acquitted accordingly.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division Islamabad and others PLD 2001 SC 607 ref.

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

----SS.14 (d) & 9 (a)(vi),(vii)----Presumption against accused----Mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of offences under S.9(a)(vi) & (vii) of the National Accountability Bureau Ordinance, 1999---Unless the basic facts constituting "misuse" of authority as contemplated under S.9(a)(vi) of the said Ordinance are established, the accused cannot be called upon to prove his innocence within the meaning of S. 14(d) of the Ordinance

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 ref.

Dr. A. Basit for Appellant.

Ahmer Bilal Soof, Deputy Prosecutor-General of NAB for the State.

Date of hearing: 13th September, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 110 #

P L D 2UU2 Lahore 110

Before Asif Saeed Khan Khosa and Muhammad Farrukh Mahmud, JJ

ANEES‑UR‑REHMAN and another‑‑--‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.23 of 2000, heard on 2nd October, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)/34‑‑‑Appreciattion of evidence‑‑‑Eye‑witnesses, instead of speaking the truth, had tried to improve the version in accordance with the stance taken by the complainant in his supplementary statement and they appeared to have been subsequently imported in the case‑‑‑Complainant had also made major improvements in his supplementary statement regarding the assailants, their role and the manner in which they left the place of occurrence‑‑‑Despite the presence of shops and tea‑stalls at the place of incident nobody from the vicinity was cited or produced as a prosecution witness in the case‑‑‑Prosecution witnesses having been disbelieved qua the acquitted accused strong independent corroborative evidence was essentially required to base conviction of the accused which was not available‑‑‑Motive set up in the F.I.R. having not been established, the same could not be used as a corroborative piece of evidence‑‑‑Complainant having disowned the version of the F.I.R. and having made major and vital improvements therein, F.I.R. had lost its sanctity which appeared to have been recorded after the investigation had already been started‑‑‑Medical evidence did not advance the prosecution case qua the accused‑‑‑No incriminating recoveries were effected from accused‑‑‑Investigation conducted in the case was dishonest‑‑‑Benefit of doubt was extended to the accused in circumstances and they were acquitted accordingly.

Falak Sher alias Sheru v. The State 1995 SCMR 1350; Mansab Khan v. The State 1974 PCr.LJ 416; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Sattaro v. The State PLD 1988 Kar. 350; Rasool Bux and another v. The State 1980 SCMR 225 and Ata Muhammad and another v. The State 1995 SCMR 599 ref.

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

‑‑‑‑Ss.154 & 161‑‑‑"F.I.R." and "supplementary statement" ‑‑‑Distinction‑‑Supplementary statement cannot be equated with the F.I.R. and it cannot be considered or read as part of the F.I.R.‑‑F.I.R. and supplementary statement are two different things ‑‑‑F.I.R. is a document which is entered into a book maintained at the police station and thumb‑marked or signed by the first informant, while the supplementary statement is recorded under S.161, Cr.P.C. and is not signed or thumb‑marked.

Falak Sher alias Sheru v. The State 1995 SCMR 1350 ref.

Ch. Pervaiz Aftab for Appellant.

Sh. Muhammad Rahim and Muhammad Sarwar Bhatti, Asstt. Advocate‑General for the State.

Dates of hearing: 20th, 25th, 26th, 27th September; 1st and 2nd October, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 124 #

P L D 2002 Lahore 124

Before Muhammad Nawaz Abbasi, J

MUHAMMAD SAEED MEHDI ‑‑‑ Petitioner

Versus

THE STATE‑‑‑-Respondent

Writ Petition No. 1675 of 2001, decided on 15th August, 2001.

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

‑‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), Ss.426, 497, 498 & 561‑A‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.9(b)‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Bail‑‑‑Power of High Court to grant bail under Art.199 of the Constitution is not affected due to the exclusion of its jurisdiction under Ss.426, 497, 498 & 561‑A, Cr.P.C. in cases under the National Accountability Bureau Ordinance, 1999 and it can put a stop to the detention of a person if he is being detained illegally or without lawful authority or unauthorisedly or his arrest and detention shows lack of bona fides‑‑‑Scope of power under Art.199 of the Constitution, however, cannot be enlarged to extend to a detailed analysis of the evidence and the appraisal of facts through deep scrutiny to hold a person innocent and then declare his arrest and detention in a criminal case illegal and without lawful authority to grant him bail.

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

‑‑‑‑Arts.199 & 203‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.9(b)‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Once a case is completely withdrawn from the jurisdiction of Courts established under the Criminal Procedure Code. 1898 and remitted to the Court of special jurisdiction, the said case would remain out of the reach of Courts of general jurisdiction‑‑‑Special Courts seized of such cases, if are not as such under the control and supervision of the High Court by virtue of Art.203 of the Constitution, still the High Court in exercise of its Constitutional jurisdiction under Art. 199 of the Constitution can go into the question of legality of an order passed by such a Court of special jurisdiction or by any other Authority functioning under a special enactment.

Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashimiri P L D 1969 S C 14 and Syed Muzaffar Hussain v. The State P L D 1974 Lah. 242 ref.

‑‑‑‑Art.199‑‑‑Criminal Procedure Code (V of 1898), Ss.497/498‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Bail‑‑‑Exercise of powers by the High Court under Ss.497/498, Cr.P.C. and the exercise of powers under Art.199 of the Constitution are independent of each other‑‑‑High Court while exercising powers under Ss.497/498, Cr.P.C. can take notice of any illegality in exercise of its Constitutional jurisdiction under Art. 199 of the Constitution, but while dealing with a matter relating to a liberty of a person in its Constitutional jurisdiction, it is difficult to substitute the Constitutional petition into a petition under Ss.497/498, Cr.P.C. and grant bail to a person by declaring him innocent through assessment of evidence.

Ch. Zahoor Elahi v. The State PLD 1977 SC 273 ref.

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

‑‑‑‑Art.199‑‑‑Criminal Procedure Code (V of 1898), Ss.497/498‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Bail‑‑‑Where a criminal action is taken against a person which can be termed as mala fide, High Court, in its Constitutional jurisdiction can release him on furnishing bail bonds‑‑‑Court while, considering the bail application, has to look tentatively into the facts and circumstances of the case and if it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a noncognizable offence, Court, in its discretion, can release the accused on bail‑‑For the purpose of ascertaining the question whether reasonable ground exists or not, Court is not supposed to go into the merits of the case, rather it has to confine itself to make an assessment that the evidence available in the hands of prosecution, even if believed, would not lead to an inference of guilt.

(e) National Accountability Bureau Ordinance (XVIQI of 1999)‑‑‑

‑‑‑‑S.9(a)(iii)(vi)‑‑‑Criminal Procedure Code (V of 1898), Ss.497/498‑‑Lonstitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Bail‑‑Accused was under arrest in a case under S.9(a)(iii)(vi) of the National Accountability Bureau Ordinance, 1999 for the allegation of misuse of his authority as a public functionary in the matter of sanctioning of funds which were used for landscaping and for construction of Polo Ground within the premises of Prime Minister's House‑‑‑Question that the allegation against the accused for misuse of powers in the discharge of his official duty was not sustainable on the basis of evidence collected by the prosecution, could not be answered without detailed scrutiny of evidence‑‑‑Documents placed on record might be relevant to the defence plea of accused that he, while discharging the official function in accordance with the Rules, had committed no offence, but the material on the basis of which the prosecution was proceeding had apparently suggested that reasonable grounds existed for believing that the accused had committed a non‑cognizable offence or that the arrest and detention under National Accountability Bureau Ordinance, 1999 was not suffering from the defect of mala fides or that it was unauthorised and illegal, or that no evidence was available to constitute an offence under the said Ordinance‑‑‑Case against accused, therefore, did not qualify the test for interference by High Court and grant of bail to him under Art. 199 of the Constitution‑‑‑Accused, however, while confined in Jail was entitled to be provided the treatment required by him for the disease he was suffering from and the Jail Superintendent was directed to make necessary arrangements in the light of the opinions of the Doctors of shifting him to a Hospital preferably the specified Hospital for treatment‑‑‑Constitutional petition was dismissed in circumstances.

Zafar Ali Shah and others v. General Pervaiz Musharaf, Chief Executive of Pakistan and others 2000 SCMR 1137; Khan Asfand Yar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; 1995 SCMR 387; 2000 SCMR 107; PLD 2000 Lah. 564; Ch. Zahoor Elahi v. The State PLD 1977 SC 273; Mir Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi and others PLD 1968 SC 313; Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66; Mrs. Shahida Faisal and others v. Federation of Pakistan and others 2001 SCMR 294; Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283; Mst. Shahnaz Begum v. Hon'ble Judges of the High Court, Sindh and Balochistan PLD 1971 SC 677; Government of. West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 and Syed Muzaffar Hussain v. The State PLD 1974 Lah. 242 ref.

Wasim Sajjad for Petitioner.

Abdul Baseer Qureshi, Deputy Prosecutor‑General, NAB for the State.

Dates of hearing: 8th and 9th August, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 149 #

P L D 2002 Lahore 149

Before Muhammad Farrukh Mahmud, J

IKRAM ULLAH KHAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision Petition No. 167 of 2000, heard on 8th August, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 295‑B‑‑‑Appreciation of evidence‑‑‑Case was registered against the accused under 5.295‑B, P.P.C. on allegation that he had burnt the Holy Qur'an‑‑‑After investigation of the case report under 5.173, Cr.P.C. was prepared and was submitted before the Judicial Magistrate who, in view of heinous nature of the offence, referred the matter to the Sessions Judge‑‑Sessions Judge without assigning any reason found that instead of S.295‑B, P.P.C. offence had been made under 5.295‑A, P.P.C. which was included in the Schedule of the Anti‑Terrorism Act, 1997‑‑‑Validity‑‑‑Allegation levelled against the accused fell within the mischief of S.295‑B, P.P.C. and S.295‑A, P.P C. was not applicable in the case‑‑‑Orders of the Courts below were set aside, in circumstances.

Mian Fazal Rauf Joya for Petitioner.

Muhammad Aslam Sumra for the State.

Date of hearing: 8th August, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 151 #

P L D 2002 Lahore 151

Before Muhammad Farrukh Mahmud, J

HAQ NAWAZ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.265 of 1998, heard on 31st October, 2001.

Penal Code (XLV of 1860)---

----Ss. 302(c) & 449---Appreciation of evidence---Participation of accused and the role played by him in the commission of the murder of the deceased had been proved by the eye-witnesses who could not substitute the real culprit with the accused solely because of some civil litigation between them---Ocular testimony could not be rejected on account of relationship of eye-witnesses with the deceased which was supported by medical evidence---Motive for the occurrence had been proved---Evidence of recovery against the accused was also proved by the report of the Forensic Science Laboratory---Conviction and sentence of accused under S.302(c), P.P.C. were upheld in circumstances---Occurrence having not taken place inside the "Bhaini" of the complainant, the accused was acquitted of the charge under S.449, P.P.C.

Sahibzada Farooq Ali for Appellant.

Syed Altaf Hussain Bokhari for the State.

Date of hearing: 31st October, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 155 #

P L D 2002 Lahore 155

Before Muhammad Saeed Akhtar, J

Messrs SYED MATCH CO. (PVT.) LTD. through Managing Director‑‑‑Petitioner

versus

Messrs CENTURY PAPER & BOARD MILLS LTD. through, Director‑‑‑Respondent

Civil Revision No. 1708 of 2001, heard on 21st December, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXVIL R.4 & O.IX, R.13‑‑‑Ex parte decree, setting aside of‑‑Imposition of condition to file surety bond before deciding application under O.XXXVII, R.4, C.P.C.‑‑‑Defendant was proceeded ex parte and decree was passed against him which he came to know during execution proceedings‑‑‑Application under O.XXXVII, R.4, C.P.C. was filed for setting aside the decree‑‑‑Trial Court before deciding the application, directed the defendant to file surety bond equal to decretal amount‑‑Validity‑‑‑Where defendant could show special circumstances for his inability to appear and obtain leave to defend, ex parte decree might be set aside under O.XXXVII, R.4, C.P.C.‑‑‑While staying execution proceedings for determination of application under O.XXXVII, R.4, C.P.C., condition of filing surety bond could not be imposed under O.XXXVIL R.4, C.P.C.‑-Provisions of O.IX, R.13, C.P.C. were pari materia with OXXXVII, R.4, C.P.C.‑‑‑Condition of surety bond, imposed by Trial Court for determination of application under O.XXXVII, R.4, C.P.C., was set aside accordingly.

Yasin Industries and others v. National Bank of Pakistan 1989 ALD 443 and Syed Mehboob Hussain Shah v. Messrs Commerce Bank Ltd. 1982 CLC 20 rel.

Qazi Misbah‑ul‑Hassan for Petitioner

Naveed Ashiq Alvi for Respondent.

Date of hearing: 21st December, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 157 #

P L D 2002 Lahore 157

Before Falak Sher, C. J. and Ijaz Ahmad Chaudhary, J

PERVAIZ AKHTAR---Petitioner

versus

STATION HOUSE OFFICER, POLICE STATION GOWALMANDI, LAHORE and 3 others---Respondents

Writ Petition No.21861 of 2001, decided on 13rd December, 2001.

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

----S. 9---Criminal. Procedure Code (V of 1898), Ss.54 & 156(2)--Constitution of Pakistan (1973), Art 199---Constitutional petition---Quashing of F.I.R.---Police on receipt of a credible information had apprehended the accused while in possession of a huge quantity of "Charas" weighing 19000 Kgs.---No mala fides had been alleged against the police for false involvement of accused in the offence---Technicalities could not stand in the way of finalization of the investigation or the disposal of cases---High Court, under its Constitutional jurisdiction, could pass the order to help the administration of justice and not in aid of injustice---Police Officer was duty bound under S.54, Cr.P.C. to arrest the accused without any warrant of arrest on a credible information against him for the commission of the cognizable offence who had been rightly arrested---Police Officer of C.I.A. Staff could not register the case which could only be registered at a police station having the jurisdiction where the offence had been committed--Proceedings taken by the police officer of C.I.A. Staff could not be challenged as per S.156(2), Cr.P.C. at any stage on the ground that he was not empowered to investigate---Technicalities could not stand in the way of finalisation of investigation or disposal of cases ---F.I.R. could not be quashed and the investigation stayed on such score alone when, no prejudice was shown to have been caused to the accused resulting in miscarriage of justice---Constitutional petition was dismissed accordingly.

Malik Saeed Hassan for Petitioner.

PLD 2002 LAHORE HIGH COURT LAHORE 159 #

P L D 2002 Lahore 159

Before Tanvir Bashir Ansari, J

MIAN KHAN---Appellant

versus

ABDUL AZIZ---Respondent

Regular Second Appeal No.31 of 1980, heard on 18th September, 2001.

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

----S. 4---Qanun-e-Shahadat (10 of 1984), Art.64---Superior right of preemption ---Collateral of vendor ---Proof---Pedigree-table---Value---Pedigreetable without any other corroborative evidence satisfying the requirement of Art.64 of Qanun-e-Shahadat, 1984, is not sufficient to prove that pre-emptor is collateral of vendor.

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

----Ss. 4 & 21---Pre-emption suit---Superior right of pre-emption ---Proof---Pre-emptor based his right on his being collateral of vendor whereas vendee claimed to be co-owner in the estate/Khatta---Pre-emptor to prove his superior right produced pedigree-table while the vendee produced' Jamabandi having endorsement of his ownership in the estate/Khatta---Trial Court decreed the suit but the Appellate Court dismissed the same---Contention of the pre-emptor was that endorsement on Jamabandi produced by vendee pertained to sale mutation of subject-matter of the suit---Validity---Where the disputed sale was effected on 29-10-1974, the same could not be incorporated in Jamabadi of the preceding years ---Pre-emptor, on the basis of evidence available on record, failed to prove his superior right of preemption qua the vendee ---Appreciation of evidence by the Appellate Court was unexceptionable and High Court declined to interfere with the judgment and decree passed by the Appellate Court.

Ahmad and others v. Allah Diwaya and others 1998 SCMR 386; Rehman, v. Noora through his Legal Heirs 1996 SCMR 300 and Muhammad Naeem and others v. Ghulam Muhammad and others 1994 SCMR 559 ref.

A.R. Tayyab for Appellant.

Khan Muhammad Hussain Azad for Respondent.

Date of hearing: 18th September, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 164 #

P L D 2002 Lahore 164

Before Ijaz Ahmad Chaudhary, J

Mian FAZAL AHMAD---Petitioner

versus

STATION HOUSE OFFICER, GULBERG LIBERTY MARKET, LAHORE and 3 others---Respondents

Writ Petition No. 14435 of 1998, decided on 28th December, 2001.

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

----S. 420---"Cheating"---Cheque dishonoured---Distinction has to be drawn before registration of case on the charge of cheating for cases where cheque is dishonoured---If civil liability already exists and person liable issues a cheque to discharge that liability and cheque is dishonoured, it does not constitute "cheating", on the other hand if some thing is received and the person who receives that thing simultaneously issues a cheque as its price which is dishonoured, it will amount to "cheating" and case can be registered against him.

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

---Art 199--Crmininal Procedure Code (V of 1898), S.561-A---Cheque dishonoured---Constitutional and , inherent jurisdiction of High Court--Quashing of proceedings---High Court can interfere if criminal procedure is adopted instead of adopting procedure for the recovery of money, which amounts-to an abuse of the process of the Court.

----Ss. 420/468/471---Constitution of Pakistan (1973), Art. 199---cashing of F.I.R.---Cheque dishonoured---Civil liability already existed before the issuance of the cheque and the accused in lieu of the issuance of the same did not receive anything---Situation, therefore, had not changed even due to the dishonour of the cheque and the circumstances continued to exist as far as to the payment of money to the complainant was concerned---Diversion of civil liability to criminal offence in present case seemed to be with mala fide intention and for ulterior motive---Ingredients of "cheating" were not made out---Pendency of the criminal case on the same subject against the accused was abuse of the process of law in circumstances and the same was quashed accordingly.

Mahmood-ul-Hassan v. ltntiaz Khan and another PLD 1'963 (W.P.) Lah. 481; Saeeduddin Qureshi v. The State PLD 1963 Kar. (W.P.) 54; Anand Ram v. Moti Ram and 3 others PLD 1987 Quetta 230; National Bank of India Ltd., Lahore v. Dost Muhammad and Brothers, The Mall Lahore PLD 1957 Lah. (W.P.1 420: Emperor v. Khawaja htasir Ahmad AIR 1945 PC 18; -Feroze Khan and 5 others v. Miskin PLD 1989 Pesh. 144; Yaqoob Khan and another v. The State and 3 others 1971 PCr.LJ 266; Javaid Hamid v. Hassan J.an and 2 others PLD 1991 Pesh. .121; Mian Tariq Azmat Sheikh v. S.H.O., Police Station F.I.A. (Banking Circle), Ahmed Park, Khanewal Road, Multan and 2 others 1996 MLD 1362; Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317 and S.C. Mitra v. Raja Kali Charan AIR 1928 Oudh 104 ref.

A.K, Dogar for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.-G.

PLD 2002 LAHORE HIGH COURT LAHORE 170 #

P L D 2002 Lahore 170

Before Syed Zahid Hussain, J

Mst. ALLAH WASAI and 6 others---Petitioners

versus

Mst. RASHIDAN and 5 others---Respondents

Civil Revision No. 1876-D of 1987, decided on 11th December, 2001.

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

----S. 115---Revision---Concurrent findings of fact by the Courts below--Appreciation of evidence---Scope---Although such findings were ordinarily treated conclusive as to their correctness, yet in order to satisfy that the findings were based on correct and proper consideration and appreciation of evidence, High Court could give opportunity to the petitioners to read the evidence---Evidence could be read by High Court in exercise of revisional jurisdiction under S.115, C.P.C.

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

----S. 45---Limitation Act (IX of 1908), Art.120---Specific Relief Act (I of 1877). S.8---Suit for possession of immovable property---Concurrent findings of fact by the Courts below---Mutation, challenge to---Limitation--Predecessor of defendants, in an earlier suit manoeuvred consent decree and got mutation sanctioned in his favour---Plaintiffs alleged that the decree was tainted with fraud, forgery and impersonation as no steps for proper identification of the person appearing before Court were taken and the suit was decided on the date which was not the date of hearing of the suit---Date of hearing in the earlier suit was 7-3-1969 but the same was taken up on 15-1-1969 on the application of the plaintiff in that case---Consent on behalf of the predecessor of the plaintiffs in the earlier case was recorded when he was not represented by any counsel and in fact had died before filing of the previous suit and thus he could not have appeared before the Court or confessed any judgment---Trial Court decreed the suit in favour of the plaintiffs and the judgment and decree were maintained by the Appellate Court---Defendants raised the plea that the present suit was time-barred--Validity---Where disputed mutation was sanctioned on 29-3-1969 and the suit was tiled on 20-2-1980, the suit was within limitation and the same was rightly found so by the Courts below---High Court declined to interfere with the concurrent findings of fact by the Courts below in circumstances.

Kaliprasanna Sinha and others v. Haripada Ghosh Hajra and others AIR 1931 Cal, 69; Government of Sindh and another v. Ch. LAM Muhammad and another PLD 1991 SC 197: Hossain Ali Khan V. Firoza Begum PLD 1971 Dacca 112: Riaz Hussain - Mazaray Khan 1988 CLC 1129; Zafar Ahmad and 5 others v. Government of Pakistan through Secretary, Ministry of Production, Islamabad and 6 others 1994 MLD 1612; Mst. Rehmat Bibi and others v Pannu Khan and others 1986 SCMR 962; Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782; Mst. Sheedi v. Muhammad Siddique and 2 others PLD 1980 Lah. 477 and Mst. Izzat v. Allah Ditta PLD 1981 SC 165 ref.

Qazi Khurshid Alam for Petitioners.

Tariq Kamal Qazi for Respondents.

Dates of hearing: 20th, 23rd and 29th November, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 176 #

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PLD 2002 LAHORE HIGH COURT LAHORE 183 #

P L D 2002 Lahore 183

Before Ali Nawaz Chowhan, J

NOOR MUHAMMAD --- Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.93-Q of 2001, heard on 8th February, 2002.

Criminal Procedure Code (V of 1895)---

----Ss. 561-A, 195 & 249-A---Penal Code (XLV of 1860, S.182---False information with intent to cause public servant to use his lawful powers to the injury of mother person---Quashing of proceedings ---Challan against accused persons was submitted in Court after due investigation---Deputy Superintendent of Police, after re-investigation directed the local police to ask for the discharge of one accused, who was discharged by the Magistrate and co-accused was acquitted on his application under S.249-A, Cr.P.C without notice to the complainant side---Discharged accused moved application against the petitioner (complainant) under S.182, P.P.C.--Magistrate ordered the Police to initiate proceedings under S.182, P.P.C. against the petitioner and Qalandra was submitted, on which the Magistrate started proceedings---Validity---Proceedings for an offence under S.182, P.P.C. could only be taken under S.195(a), Cr.P.C. on written complaint of a public servant---Public servant in the present case was S.H.O. who had refused to initiate proceedings under S.182, P.P.C. and Magistrate had no powers to make recommendation for initiation of proceedings under 5.182, P.P.C.---Entire, proceedings, therefore, were tainted with prejudice and bias---Matter was initiated by the Magistrate although he was not a public servant within the connotation of "public servant" as per S.182, P.P.C. read with S.195, Cr.P.C.---Proceedings were ordered to be quashed---Concerned Sessions Judge was directed by the High Court to call an explanation of the Magistrate and submit a report to the High Court in that behalf.

Present was a case where after proper investigation -and after satisfying himself, the Investigating Police Officer had decided to submit the report under section 173, Cr.P.C. recommending that the case was fit for trial. After submission of the challan, the trial had to commence afresh but investigation was re-started by D.S.P. at a belated stage. Although the police could always investigate the matter even where the challan had been submitted but what controls their action was the propriety aspect because after submitting the challan, there ought to have been extraordinary circumstances calling for a fresh investigation at the D.S.P. end. The Judicial Magistrate mechanically agreed with the report of the police asking for discharge of the accused and without applying his mind passed an order for his discharge and very abruptly he also accepted the application under section 249-A, Cr.P.C. against the co-accused who was acquitted Prima facie it reflected the action at the instance of the accused party and rather completely under its influence. The Judicial Magistrate while acting in this manner exposed himself as a friend of the accused side and not one acting as an arbiter in the case. This conduct was unfortunate.

As the entire proceedings appeared to be tainted with prejudice and bias and as the matter was initiated by the Judicial Magistrate all by himself although he was not the public servant within the connotation of a "public servant", as per section 182, P.P.C. read with section 195, Cr.P.C., the proceedings before him were nothing but a farce having no value in law and while exercising its visitorial jurisdiction, High Court quashed those findings.

A copy of the High Court order was directed to be sent to the concerned Sessions Judge, who should see the record, call an explanation of the Magistrate and then submit a report to the High Court.

Khan Ghulam Qadar Khan Khakwani v A.K. Khalid PLD 1960 (W.P.) Lah. 1039; Mian Zahid Sarfraz v. The State 1989 PCr.LJ 1831; Haji Milhammad Aslam v. Inspector-General and others P1.D 2(101 Lah 84 and Mst. Sarwar"flays v. The State 1991 PCr.LJ Note 86, p.62 ref.

Muhammad Asif Chaudhary for Petitioner.

Ch. Aftab Ahmad Gujjar for the State.

Date of hearing: 8th February, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 187 #

P L D 2002 Lahore 187

Before Bashir A. Mujahid, J

Mst. AISHA alias NASIM---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.7038-B of 2001, decided on 31st January, 2002

(a) Islamic Law---

----Non-Muslim married woman---Dissolution of marriage after conversion of religion---If a married non-Muslim woman had embraced Islam, she must inform her husband of said conversion of religion and the husband could embrace Islam within a period of Iddat and in that case the marriage would continue, but if the husband remained non-Muslim even after expiry of Iddat period, the marriage would stand dissolved---Even in that case the wife had to apply to the Family Court for dissolution of marriage on that ground and the Court would summon her husband and inform him about the conversion of his wife and if he did not embrace Islam within Iddat period, the Court could declare marriage dissolved---Woman would in that eventuality be entitled to enter into second marriage with a Muslim and such procedure must be adopted to preclude the possibility of exploitation of religion merely for the purpose of satisfying sexual desire without any regards for one's family responsibility---Observance of Iddat period was also compulsory to avoid the possibility of pregnancy and the controversy of paternity of the child---Contention that woman's marriage with her previous non-Muslim husband would dissolve automatically by her embracing Islam, was repelled---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.

1997 MLD 158(1) ref.

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

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2)/16 & 4---Bail, grant of---Accused female who was Christian, had embraced Islam and on the very day entered into Nikah with a Muslim without observing procedure which was to be adopted by her for entering into marriage after conversion of religion---Accused was an uneducated woman and procedure to be adopted was not known to her---No mens rea for commission of Zina existed which had brought the case of the accused for further inquiry---Accused was in judicial lock-up for the last more than seven months and was not pregnant---Accused otherwise, being a woman, was entitled to bail---Bail was granted to the accused, in circumstances.

Muhammad Akram Gondal for Petitioner.

Qazi Zafar Iqbal for the State.

PLD 2002 LAHORE HIGH COURT LAHORE 190 #

P LD 2002 Lahore 190

Before Tanvir Bashir Ansari, J

MUSHTAQ AHMAD---Petitioner

versus

MUHAMMAD ISMAIL ---Respondent

Civil Revision No.406-D of 1990, heard on 22nd October, 2001.

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

----Art. 33---Statement of referee---Nature---Object and purpose of reference under Art.33 of Qanun-e-Shahadat, 1984 was to treat the statement of the referee as the statement of the party itself---Referee had to render his statement in accordance with his personal knowledge of the subject-matter of the dispute and he would not have to rely upon any extraneous material or circumstances---If the statement of the referee would fulfil said requirements, it would be deemed to be a statement of the parties as if they had made such statements themselves---Effect of such statement would be binding upon the parties---Reference under Art.33 of the Qanun-e-Shahadat, 1984 contemplated only one referee who should make a statement according to his oven personal knowledge---Though, no restriction appeared to have been placed upon the number of referees to be appointed, but the rationale of the provision of law indicated that the appointment of more than one referee could lead to thwart very purpose of making a reference---Practice of appointing more than one referee could work to the detriment of the purpose for which referee was appointed---Statement made by one referee being binding upon the parties, decree based upon such statement could not be challenged by any party in appeal unless same was the result of fraud or misrepresentation.

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

----S. 115---Revisional jurisdiction---Scope---No illegality being discernible from the proceedings of the Trial Court or the Appellate Court, concurrent findings of both the Courts below not suffering from any legal infirmity could not be interfered with in revision by High Court.

Abdul Aleem Qureshi for Petitioner.

S.M. Hussain Khan for Respbndent.

Date of hearing: 22nd October, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 194 #

P L D 2002 Lahore 194

Before Mrs. Fakhar-un-Nisa Khokhar, J

IFFAT RAZI---Petitioner

versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.675 of 2002, heard on 21st February, 2002.

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

----S. 3, Expln. I1---Anti-Terrorism Act (XXV of 1997), S.11-A--Constitution of Pakistan (1973), Arts. 199, 9 & 10---Constitutional petition--Preventive detention---Liberty of citizen, a divine right guaranteed by the Constitution---Allegation against the detenu was that he being a Sarparaste Alla or member of a banned organization was involved in certain nefarious activities which were prejudicial to the interest and safety of the public at large---No material had been produced by the Authorities to show that the detenu was a member of a banned organization or had remained a member of the banned organization within seven days of its declaration being banned---Mere saying that the detenu was a member of such organization was not enough but in order to curb the liberty and freedom of an individual substantial material had to be placed for doing the same in a detention order---Detention order which did not carry reasonable substantial material to detain an individual on a report of an Investigating. Agency without any material showing same being prejudicial to the interest of maintenance of public order and being in violation of S.3, Expln. II of the West Pakistan Maintenance of Public Order Ordinance, 1960, was without lawful authority and jurisdiction ---Detenu was ordered by High Court to be released forthwith if not required in any other case---Principles.

Liberty of a citizen is a divine right which is vested in a citizen duly safeguarded, by the Constitution. Dignity of a common man does not differ from man to man, race to race and nation to nation and it is the supreme right of a citizen which should be explained for each hour, each day and each month if curtailed.

In order to curb liberty and freedom of individual substantial material should be placed for doing the same in a detention order. In the present case the impugned detention order did not contain reasonable substantial material to detain an individual and curb his liberty and freedom of movement merely on a report of an Investigating Agency without any material showing the same prejudicial to the interest of public maintenance and order. There is heavy duty and heavy burden on the detaining authority showing reasonable and substantial ground while passing detention order. The High Court being a Court of equity and natural justice has all the jurisdiction to go into and scrutinize the material which is furnished by the detaining authority for the detention of any individual. Just saying that the detenu is a member of an organization or Sarparastet Alla without any substantial material showing that undoubtedly he is the Sarparaste Alla of the banned organization and is involved in certain nefarious activities which are prejudicial to the interest and safety of the public at large is not enough. Even the provision under section 3 of the Maintenance of Public Order Ordinance, 1960 provides that the member of an -association or its executive committee which association is or has been declared to be unlawful under any law for the time being in force that membership shall be deemed to have been prejudicial in the manner to the public safety and maintenance.

The interpretation of provision of section 3 of the Maintenance of Public Order Ordinance, 1960 shows that after an organization has been banned if a person remains on the roll of its membership or in the executive body of that organization within seven days of 'its declaration of being banned his activities will tantamount to be prejudicial to the interests of the State.

No material has been produced by the authorities to show that the detenu is a member of that organization and has remained as a member of the banned organization within 7 days of its declaration being banned. The detention order has been passed in violation of section 3, Explanation 11 of Maintenance of Public Order Ordinance, 1960. Hence the detention order passed on mere report of an agency is without lawful authority and jurisdiction. The detenu is directed to be released forthwith if not required in any other case.

1997 PCr.LJ 1748; 1997 PCr.LJ 1288; 1998 PCr.LJ 89; 1994 SCMR 1283; Mir Abdul Baqi Baloch v. Government of Pakistan PLD 1968 SC 313; Shahnaz Begum v. Hon'ble Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677; Zahoor Ellahi v. State- PLD,1977 SC 273; Ch. Abdul Malik v. The State PLD 1968 SC 349 and 2001 SCMR 8 ref.

Malik Muntazir Mehdi and Muhammad Ramzan Khalid Joeya for Petitioner.

Muhammad Qasirn Khan and Muhammad Sarwar Bhatti, A.A.-Gs for Respondents.

Date of hearing: 21st February, 2002

PLD 2002 LAHORE HIGH COURT LAHORE 200 #

P L D 2002 Lahore 200

Before Karamat Nazir Bhandari and Ijaz Ahmad Chaudhary, JJ

MUHAMMAD HANIF---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.513 of 1997, heard on 17th January, 2002.

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

----S. .9(c)---Appreciation of evidence---Witnesses of recovery had no motive for false implication of accused and they had made consistent statements on material points which were corroborated by other evidence available on record---Accused had been arrested at the place of recovery---Immediate registration of the F.I.R. had also supported the recovery from the accused and the recovered material was found to be opium by the Chemical Examiner---Recovery of 5-1/2 Kgs. of opium from the accused was established beyond any doubt---Although the Assistant Sub-Inspector of Police was not competent to investigate the case, yet it would not vitiate the decision on merits as the case otherwise stood proved against the accused--No prejudice had been caused to the accused by the arrest and recovery of opium by the Assistant .Sub-Inspector which had not resulted into any miscarriage of justice---Police witnesses were also competent witnesses who had no personal ulterior motive to falsely involve the accused in the commission of the offence---Conviction of accused was consequently upheld---Accused was the first offender and the narcotics recovered from him being less than 10 Kgs. his sentence of imprisonment for life being harsh was reduced to ten years' R.I. with reduction in sentence of tine.

Nasrullah v. State PLD 2001 Pesh. 152; Wali Zar v. The State PLD 1960 (W.P.) Kar. 204; Crown v. Ali Gohar PLD 1954 Sindh 208, Muhammad Mir Kamhar v. The State AIR 1953 Galtah 226; State v. Madhan Lal AIR 1954 Punj. 42; Abdul Marian v. State PLD 1958 Kar. 642; Crown v. Mehar Ali PLI) 1956 SC (Pak.) 106; (Commander) M.S.K. Ibrat v. Commander-in-Chief, Royal Pakistan Navy and others PLD 1956 SC (Pak.) 264; Prabhu v. Emperor AIR 1994 PC 73; Zahiruddin v. Emperor PLD 1947 PC 13; Karuma v. The Quden PLD 1957 PC 32; Shivput Manjunathbut Hattangadi v. Emperor AIR 1928 Bom. 162; Rustom Ardeshir Banaji v. Emperor AIR 1948 Bom. 162; Promod Chandra Shekhar v. Rex AIR 1951 All. 546; Keshav Mantra Shrivastave v. The State AIR 1952 All. 122; H.A Rishbud and another v. The State of Delhi AIR 1955 SC 196; State of Madhya Pradesh v. Veereshawar Rao Agnihotra AIR 1957 SC 592; Din Dayal Sharma v. State of U.P. AIR 1959 SC 831; Salahuddin v. The Crown PLD 1956 Lah. 87; Shaikh Abdul Majid v. The State PLD 1958 Kar. 86; Crown v. Noor Alam PLD 1955 Lah. 667; Crown v. Subhan PLD 1956 BJ 9; Abdul Noor alias Nur Mina v. The State PLD 1958 Dacca 145; Sudhir Kumar v. The State AIR 1953 Cal. 226; Abdul Manan v. The State PLD 1958 Kar. 643; Chandra Bapu's case ILIt 49 Bom. 212; Shivbat's case ILR 52 Bom. 238; Abdul Noor alias Nur Meah v. The State PLD 1958 Dacca 145; M. Abdul Latif v. G.M.Paracha and others 1981 SCMR 1101 and The State v. Bashir Ahmad PLD 1997 SC 408 ref.

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

----S. 156(2)---Illegality or irregularity in investigation---Effect---Illegality or irregularity in the investigation in violation of S.156, Cr.P.C. may not vitiate the trial if no serious prejudice has been caused to the accused resulting in miscarriage of justice in view of subsection (2) of S.156, Cr.P.C.

The State v. Bashir Ahmad PLD 1997 SC 408 ref.

Ch. Ehsan-ul-Haq Bhalli for Appellant.

Muhamamd Azam Khan for the State.

Date of hearing: 17th January, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 210 #

P L D 2002 Lahore 210

Before Ali Nawaz Chowhan and Tanvir Bashir Ansari, JJ

Ex‑Spoy LIAQAT ALI ‑‑‑Petitioner

versus

FEDERAL GOVERNMENT and others‑‑‑Respondents

Writ Petition No.249 of 2001, heard on 12th December, 2001

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quantum of sentence‑‑‑Validity‑‑‑Case against accused, an Army personnel for having caused the death of his colleague was duly established and his conviction did not suffer from any infirmity‑‑‑Accused was a young person and his statement recorded by the Field General Court Martial reflected that the act which he had done was destitute of any wickedness‑‑Conduct of the accused reflected pure human frailty, psychological obsession on account of perversity or psychological imbalance‑‑‑Accused had made a clean breast of what he had done and after the act he was satisfied and had become calm and his normalcy had returned‑‑‑Accused perhaps was of the view that the deceased had fallen in bad company and he should protect him or probably he had such an emotional attachment with the deceased that his perversity could not bear any interruption‑‑‑Although the accused in. his statement had accepted his guilt, yet it was possible that many things still remained shrouded‑‑‑Was also possible that a provocation from the deceased might have overwhelmed the faculties of the accused immediately before the occurrence on receiving a punch from the deceased‑‑‑Voluntary confession made by accused by itself could bring his case out of the ambit of severe punishment which was an accepted norm in the civilized world‑‑‑Accused could not get proper legal advice and he had implicated himself blindly which was a mitigating circumstance in his favour‑‑‑Field General Court Martial had not been rendered correct legal advice as to the quantum of sentence which was not based on rational grounds‑‑‑High Court could, therefore, interfere for a curative action and for providing justice to a citizen and a personnel of the Pakistan Army‑‑‑Death sentence awarded to accused was altered to imprisonment for life in circumstances‑‑Constitutional petition was disposed of accordingly.

Machhi Singh and others v. State of Punjab AIR 1983 SC 957 and Bachan Singh v.State of Punjab AIR 1980 SC 898 ref.

(b) Criminal trial---

‑‑‑‑Sentence‑‑‑Mitigating circumstance‑‑‑Very act of confession voluntarily made by the accused should ordinarily take his case out of the ambit of severe punishment and bring it to an area of a lesser punishment, this being an accepted norm in the civilized world.

‑‑‑‑Sentence‑‑‑Mitigating circumstance‑‑‑Where an accused could not get proper legal advice and implicated himself blindly in the case, it constitutes a mitigating circumstance in his favour.

Muhammad Akram for Petitioner.

Qazi Ahmad Naeem Qureshi, Federal Counsel for Respondents.

Date of hearing: 12th December, 2001

PLD 2002 LAHORE HIGH COURT LAHORE 217 #

P L D 2002 Lahore 217

Before Tanvir Bashir Ansari, J

MUNIR AHMAD‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB‑‑‑Respondent

Civil Revision No.224 of 1993, decided on 1st January, 2002.

(a) Punjab Acquisition of Land (Housing) Act (VIII of 1973)‑

‑‑‑‑Preamble‑‑‑Object and purpose‑‑‑Punjab Acquisition of Land (Housing) Act, 1973, has been promulgated for the purpose of making provisions of acquisition of land 'for housing schemes in urban and rural areas of the Province of Punjab.

(b) Punjab Acquisition of Land (Housing) Act (VIII of 1973)‑‑‑

‑‑‑‑Ss. 3 & 4‑‑‑Acquisition of land‑‑ Procedure‑‑‑Rights of individuals‑‑Affect‑‑‑Housing Scheme under the provisions of Punjab Acquisition of Land (Housing) Act, 1973, has to be approved and notified by the Government or the Official Development Agency (O. D. A.)‑‑‑Housing Scheme at the stage of being approved and notified is merely decided to be set up‑‑‑Term "notified" has to be understood in the context that the scheme is initiated by the Government and is also approved and notified by it or Official Development Agency and that at that point of time, it does not affect any individual or public rights.

‑‑‑‑"Notified"‑‑‑Meaning.

Ballentine's Law Dictionary 3rd Edn.; Black's Law Dictionary; Words and Phrases, Permanent Edn., Vol. 28‑A ref.

(d) Punjab Acquisition of Land (Housing) Act (VIII of 1973)‑‑‑

‑‑‑‑Ss. 3 & 4‑‑‑Notification, publication of‑‑‑Purpose‑‑‑Notification under S.4 of the Punjab Acquisition of Land (Housing) Act, 1973, is required to be published in the Official Gazette with the object of making it known to the general public‑‑‑As long as an act of a public functionary through issuance of a notification is likely to affect the general public, it must be published in the Official Gazette‑‑‑Where the rights of general public are not affected, the generalization of the necessity of publishing all notifications in the Official Gazette cannot be extended.

Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 and Trustees of the Port of Karachi through Secretary v. Gujranwala Steel Industries and another 1993 CLC 744 ref.

(e) West Pakistan General Clauses Act (VI of 1956)‑‑‑

‑‑‑‑S. 2(41)‑‑‑Expressions 'notification' and 'notified'‑‑‑Connotation‑‑Although word 'notification' according to S.2(41) of the West Pakistan General Clauses Act (VI of 1956) is a notification published under proper authority in the Official Gazette, yet while interpreting the term 'notified', it has to be given meaning in the manner which the Legislature ordained in a particular statute.

(f) Punjab Acquisition of Land (Housing) Act (VIII of 1973)‑‑‑

‑‑‑‑S. 3‑‑‑Expression 'published in they, Official Gazette'‑‑‑Omission of the expression in S.3 of the Punjab Acquisition of Land (Housing) Act, 1973‑‑Effect‑‑‑Where the expression is absent to S.3 of the Punjab Acquisition of Land (Housing) Act, 1973, the Legislature by necessary intendment has not treated the act of approval or notifying of the housing scheme as at, act touching or affecting public rights and did not deem it necessary to oblige the publication of the same in the Official Gazette‑‑‑Failure to publish notification issued under S.3 of the Punjab Acquisition of Land (Housing) Act, 1973, does not make the same invalid for non‑publication of the same.

Mst. Sobia Hanif v. The Collector (Deputy Commissioner), Lahore District, Lahore and 5 others 1993 CLC 2073; Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 and Trustees of the Port of Karachi through Secretary v. Gujranwala Steel Industries and another 1993 CLC 744 ref:

(g) Punjab Acquisition of Land (Housing) Act (VIII of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Preliminary notification, publication of‑‑‑Requirement‑ ‑‑such notification under S.4 of the Punjab Acquisition of Land (Housing) Act. 1973, is required to be published in Official Gazette mid also that the Collector has to cause public notice of the substance of such notification to be given at convenient places at the locality‑‑‑Only after the publication of the notification, the public functionary specified therein can do any or all acts necessary for the purpose of the Housing Scheme such as entering Upon the land, making survey thereof, to dig or bore into the subsoil, to set out the boundaries of the land proposed to he taken etc.

(h) Practice and procedure‑

‑‑‑‑ Where a thing is to be done in a particular manner, it shall be done in that manner or not at all.

(i) Punjab Acquisition of Land (Housings Act (VIII of 1973)‑‑‑

‑‑‑‑Ss. 3 & 4‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Acquisition of land‑ ‑Site selection‑‑‑Change/deviation in constitution of Site Selection Committee‑‑ ‑Plaintiffs assailed the acquisition proceedings on the ground that the same were ultra vires of the Punjab Acquisition of Land (Housing) Act, 1973‑‑‑Nothing was pointed out in the proceedings of the Site Selection Committee to indicate any mala fides of the Committee towards to plaintiffs‑‑‑ ‑Trial Court dismissed the suit and the Lower Appellate Court a to came to the conclusion that the plaintiffs had failed to produce sufficient evidence to prove any mala fides‑ ‑‑Plea raised by the plaintiffs was that to Site Selection Committee was not constituted according to the provisions of Punjab Acquisition of Land (Housing) Act, 1973‑‑‑Validity‑‑‑Atly alit change or deviation in the constitution of the Site Selection Committee would not vitiate the proceedings nor would it prejudice the case of the plaintiffs unless mala fides were attributed to or proved against any particular public functionary‑‑‑High Court maintained the judgments and decrees passed by the Courts below‑‑‑Revision was dismissed in circumstances.

Mst. Sobia Hanif v. The Collector (Deputy Commissioner), Lahore District Lahore and 5 others 1993 CLC 2073; Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190; Syed Muhammad Khurshid Abbas Gardezi and others v. Multan Development Authority and others PLD 1983 SC 151 and Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104 ref.

Moulvi Ijaz‑ul‑Haq for Petitioner.

Raja Saeed Akram, Asstt. A.‑G. alongwith Zia‑ud‑Din, District Officer, Housing and Town Planning, Attock for Respondent.

Date of hearing: 12th December, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 227 #

P L D 2002 Lahore 227

Before Ali Nawaz Chowhan, J

Raja JAVED KIANI‑‑‑Appellant

Versus

MUHAMMAD IQBAL‑‑‑Respondent

First Appeal from Order No. 63 of 2000, heard on 18th January, 2002.

(a) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Bona tide personal need of landlord‑‑‑Proof‑‑‑Extent and scope‑‑No legal requirement for a landlord to give lengthy detail or to urge all ingredients in detail showing his bona fide requirements‑‑‑If landlord has come forward and has made a statement on oath about his bona fide requirement and such statement is consistent with his petition and his statement is not shaken in cross‑examination, such statement is to be accepted.

Chhappar Khan and another v. Chief Land Commissioner, West Pakistan and others PLI 1976 Kar. 336 and Hassan Khan v. Mrs. Munawar Begum PLD 1976 Kar. 832 ref.

(b) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Bona fide personal need of landlord ‑‑‑Mala fides of landlord‑‑Some of the factors which may give impression about mala fides of landlord include the fact that he does not have training in the type of business which he intends to establish at the premises.

‑‑‑‑S. 17‑‑‑Bona tide personal need of landlord‑‑‑Merely having ownership of other premises was no ground for non‑suiting the landlord on the plea of personal use‑‑‑Landlord had the prerogative to decide amongst his properties which one he needed for his personal use.

Badar‑ud‑Din Hassan Farooqi through his 5 Legal Representatives v. Manghi Industrial Home PLD 1976 Kar. 620 ref.

(d) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Ejecttnent of tenant‑‑‑Withdrawal of the earlier petition and postponement of the desire to occupy the premises‑‑‑Effect‑‑‑Such action or desire on the part of landlord cannot be taken as a ground merely to show mala fides without pointing to other circumstances.

(e) Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑S. 17‑‑‑Bona fide personal need of landlord‑‑‑Location of premises‑‑Landlord being a doctor required the premises to establish his clinic‑‑‑Tenant raised the objection that the premises was located amongst handicraft shops and the same was not suitable for clinic ‑‑‑Validity‑‑‑Doctor's clinic could be run amongst handicraft shops and nothing has been brought on record to a different effect‑‑‑Bald statement of the tenant challenging the intentions of landlord calling the place as unsuitable Cite for his needs, would not shake the testimony of landlord‑‑Where there existed sole testimony of the landlord and the sole testimony of the tenant, it would be strange not to accept the testimony of the landlord on oath showing his intentions to personal use of the premises rented out by him‑‑‑High Court accepted the plea of landlord with respect to personal need of premises and set aside the judgment passed by the Rent Controller‑‑‑Ejectment petition of the landlord was allowed in circumstances.

Chhappar Khan and another v. Chief Land Commissioner, West Pakistan and others PLJ 1976 Kar. 336; Hassan Khan v. Mrs. Munawar Begum PLD 1976 Kar. 832 and Mian Abdur Rehman v. Haji Muhammad Hussain and another PLD 1971 BJ 17 ref.

Asghar Haider for Appellant.

Mehmood‑ul‑Hassan Awan for Respondent.

Date of hearing: 18th January, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 233 #

P L D 2002 Lahore 233

Before Mian Nazir Akhtar and Mian Muhammad Najam‑uz‑Zaman, JJ

Maj. (Retd.) TARIQ JAVED AFRIDI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1914 of 2000, decided on 9th January, 2002.

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

‑‑‑‑S. 9(a)(vi)‑‑‑‑"Misuse"‑‑‑Connotation‑‑‑Word "misuse" of authority means a wrong and improper exercise of authority for a purpose not intended by law.

Concise Oxford Dictionary, 9th Edn., p.872; Oxford (Advanced Learner's) Dictionary, 5th Edn., p.747 and Chambers' 21st Century Dictionary (Revised Edn.), p.877 ref.

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

‑‑‑‑S. 9(a)(vi)‑‑‑Liability of accused‑‑‑Mere erroneous order or lack of jurisdiction on the part of a public functionary will not amount to an offence under S.9(a)(vi) of the National Accountability Bureau Ordinance, 1999‑‑‑If, however, a public functionary deliberately uses or exercises his own authority or for that matter usurps the powers of another public functionary with the objective of gaining any benefit or advantage for himself or for any other person then he will be guilty of an offence under S.9(a)(vi) of the said Ordinance.

‑‑‑‑S. 9(a)(vi)‑‑‑Mens rea‑‑‑Provisions of the National Accountability Bureau Ordinance, 1999, do not rule out mens rea and make the offence as one of strict liability‑‑‑Foundation of mens rea qua the offence under S.9(a)(vi) of the said Ordinance is found in two elements: firstly in conscious misuse of authority and secondly in gaining of any benefit or favour by the accused for himself or for any other person.

Criminal Law by Harris, 22nd Edn. published by Universal Law Publishing Company (Pvt.) Ltd., p.42 and Brend v. Wood (1946) 62 TLR 462 ref.

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

‑‑‑‑S. 14(d)‑‑‑Presumption against accused‑‑‑Defence provided under S. 14(d) of the National Accountability Bureau Ordinance, 1999, is in respect of the offences created under S.9(a)(vi) & (vii) of the said Ordinance and is available to a person who uses his authority which would really mean use of authority lawfully possessed by him‑‑‑If the accused can show that he had acted in the public interest fairly, justly and for the advancement of the purpose of enactment under which the authority was used, then he will not be penally liable.

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

‑‑‑‑Ss. 10(a)/9(a)(vi)‑‑‑Appreciation of evidence‑‑‑Accused had acted in dual capacity, the first as Managing Director, C.D.A. and the second as Collector under the Colonization of Government Lands (Punjab) Act, 1912‑‑‑Accused in his first capacity undoubtedly had the authority to pass any order or to take any action within the limits of the powers possessed by him as Managing Director of the C.D.A., but in his second capacity he had absolutely no powers or authority prior to conferment of powers of Collector under the Colonization of Government Lands (Punjab) Act, 1912‑‑‑Accused, as a responsible law knowing person, should have waited till powers of Collector were actually conferred on him and thereafter he could have legitimately exercised the same in accordance with law‑‑‑All the orders passed by the accused in his capacity as Collector were a nullity in the eye of law and the Board of Revenue had not opted to validate the same ‑‑‑Public interest, thus had been seriously prejudiced because the allottees of land and other persons to whom proprietary rights had been granted or in whose favour sale‑deeds had been executed had not acquired valid titles and they were going to be involved in litigation and the whole exercise would have to be undertaken afresh at public expense‑‑‑Accused had not acted justly and fairly in exercising his authority‑‑‑In the process of allotment of land to the affectees, grant of proprietary rights and execution of sale‑deeds, the accused, no doubt, had not gained any pecuniary benefit for himself, but he had gained benefit for the said allottees etc. who had stopped paying the lease money to the Government considering themselves to be the lawful owners of the lands although legally they were not the owners‑‑‑Conviction of accused was upheld in circumstances‑‑‑Accused as a result of his conviction had lost his job and stood disqualified for a period of ten years to hold any public office and he had also remained in confinement for 5‑1/2 years‑‑‑Sentence of accused was, therefore, reduced to the imprisonment already undergone by him‑‑‑Accused had not earned any pecuniary benefit for him and also was not reported to be living beyond his known source of income‑‑ ‑Sentence of fine awarded to accused was consequently set aside‑‑Appeal was disposed of accordingly.

Concise Oxford Dictionary, 9th Edn. p.872; Oxford (Advanced Learner's) Dictionary, 5th Edn., p.747; Chambers' 21st Century Dictionary (Revised Edn.), p.877; Criminal Law by Harrris 22nd Edn. published by Universal Law Publishing Company (Pvt. Ltd., p.42 and Brend v. Wood (1946) 62 TLR 462 ref.

Kh. Haris Ahmad for Appellant.

Javaid Shaukat Malik, Special Prosecutor‑General for NAB.

Dates of hearing: 26th, 27th September; 1st to 4th, 8th, 10th, 15th and 17th October, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 247 #

P L D 2002 Lahore 247

Before Khawaja Muhammad Sharif, J

THE STATE‑‑‑Petitioner

Versus

SECRETARY, HEALTH PUNJAB, LAHORE and another‑‑‑Respondents

Suo Motu Criminal Original No.4 of 2002, decided on 11th February, 2002.

(a) Contempt of Court Act (LXIV of 1976)‑‑

‑‑‑‑Ss. 3/4‑‑‑Constitution of Pakistan (1973), Art.204‑‑‑Contempt of Court‑‑Object of proceedings‑‑‑Object to proceed for contempt is to maintain the confidence of the people in general and the litigant public in particular in Court.

State v. Sami Ullah PLD 1999 Lah. 131 ref.

(b) Contempt of Court Act (LXIV of 1976) ---------

‑‑‑‑Ss. 3 & 4‑‑‑Constitution of Pakistan (1973), Art.204‑‑‑Penal Code (XLV of 1860), S.197‑‑‑Contempt of Court‑‑‑Two doctors, one of them being the brother of the Secretary Health Punjab after having been convicted and sentenced under S.197, P.P.C. by the High Court and the Supreme Court, had not been arrested and the orders passed by "the said Courts were not implemented‑‑‑Verdict of conviction having been upheld by the Supreme Court, the matter could not be left to the discretion of the Secretary for holding any inquiry later on, rather he was under a legal obligation to terminate the services of the convicts because the conviction by all means was a blot on their service career and no notice was required to be issued in the peculiar facts and circumstances of the case‑‑‑Such exercise was done to find inroads in the judgments of the superior Courts which smacked of cunningness and mala fides just to help out a convict who happened to be the real, brother of the Secretary Health Department of the Province who wanted to have done which could not otherwise have been done in accordance with law‑‑‑Respondent‑Secretary was fully aware of the fact that both the convicts, in spite of their conviction having been maintained by the Supreme Court, had not surrendered themselves‑‑‑Had the Secretary believed in rule of law, he should have asked his convict brother and his co‑accused to surrender but he had not done so‑‑‑Efforts had been made through hidden hands to absolve the convicted persons while acting in a male fide marine: and also by committing illegal omissions‑‑‑Apart from the said illegalities and mala tides committed by the Secretary Health he had also caused a great loss to the State exchequer by paying the convict Doctors the salaries regularly‑‑‑Senior Superintendent of Police had also become a tool in the hand of the respondent Secretary in not arresting the convicts though warrants had been issued against them by the High Court‑‑‑Respondent S.S.P. did not realize his responsibility towards discharge of his statutory legal duties, rather he pat spanner in the wheels of justice and in order to shift his responsibility he had made his juniors scapegoats by suspending them and initiating disciplinary proceedings against them‑‑‑Act of S.S.P. was a sabotage to judicial decisions of the superior Courts‑‑‑Respondents had not offered their apology at the earliest, rather it was only on the pointation of the Court‑‑‑Apology did not reflect sincere and genuine repentence and was half‑hearted‑‑‑Respondents had first tried to justify their conduct by arguing the case at full length and it was a fractured apology‑‑‑Guilt against both the respondents, thus, stood proved beyond any shadow of doubt‑‑‑Secretary Health was guilty of the gravest form of contempt of High Court and Supreme Court‑‑‑Secretary had also misused his official capacity in order to save his brother and his co‑accused and his act amounted to bring the authority of the Courts into disrespect, disrepute, interference and pre-juicing the process of law‑‑‑Secretary Health was, therefore, convicted under Ss. 3 & 4 of the Contempt of Court Act, 1976 read with Art. 204 of the Constitution and sentenced to three months' S.I. with a fine of Rs.5,000 or in default thereof to undergo S.I. for one month ‑‑‑S.S.P. was also convicted under Ss. 3 & 4 of the Contempt of Court Act, 1976 read with Art. 204 of .the Constitution and sentenced to undergo 15 days' S.I. with a fine of Rs.1,000 or in default to suffer 7 days S.I.

State v Sami Ullha PLD 1999 Lah. 131; Saudagar Ali v. Chairman District Council Multan PLD 1963 (W.P.) Lah. 601; State v. Sir Edward Snelson K.B.E., Secretary to Government of Pakistan, Ministry of Law PLD 1961 (W.P.) Lah 78; Sher Ali and others v. Sheikh Zahoor Ahmad PLD 1977 SC 545 and Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969 ref.

‑‑Ss. 3/4‑‑‑Constitution of Pakistan (1973), Art.204‑‑‑Contempt of Court‑‑Apology ‑‑‑Apology does not furnish a complete defence to a charge of contempt of Court.

Sher Ali and others v. Sheikh Zahoor Ahmad PLD 1977 SC 545 ref.

(d) Contempt of Court Act (LXIV of 1976)‑‑‑

‑‑‑‑Ss. 3/4‑‑‑Constitution of Pakistan (1973), Art.204‑‑‑Contempt of Court‑‑Apology‑‑‑Tendering of unconditional apology amounts to admission of the charge‑‑‑Apology must be offered at the earlier stage of the contempt proceedings and may not be postponed till the fag‑end of the proceedings‑‑Apology must be unconditional, unreserved and unqualified and the same should not only appear but must also satisfactorily represent sincere and genuine remorse and should not be half‑hearted or mere formality‑‑Contemner should also not endeaver to justify his conduct.

Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969 ref.

(e) Contempt of Court Act (LXIV of 1976)‑‑‑

‑‑‑‑Ss. 3/4‑‑‑Constitution of Pakistan (1973), Art.204‑‑‑Contempt of Court‑Punishment, object of‑‑‑Object of awarding punishment to a person for contempt of Court is two‑fold, namely that he should be sentenced for violating the law and secondly a deterrence to the like‑minded persons who without caring for the consequences do wrongs and violate the law.

Respondents in person

Maqbool Elahi Malik, Advocate‑General, Punjab.

PLD 2002 LAHORE HIGH COURT LAHORE 262 #

P L D 2002 Lahore 262

Before Ali Nawaz Chowhan, J

BAKHSHISH ILAHI ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.218 of 2000, heard on 4th March, 2002.

(a) Penal Code (XLV of 1860)‑‑‑‑‑‑‑Ss. 302(b) & 302(c)‑‑‑Appreciation of evidence‑‑‑Motive for the occurrence was not proved by the prosecution‑‑‑Failure of the prosecution in its version had brought the defence version forward to rescue the accused‑‑Statement of accused recorded under 5:342, Cr.P.C. inspired confidence and helped in determining his role in the crime‑‑‑No background of previous enmity existed inter se the parties‑‑‑Murder was not a cold‑blooded and premeditated one and the case had a streak of family honour (Ghairat) which was even believed by the Trial Court‑‑‑Conviction of accused under S.302(b), P.P.C. was altered to S.302(c), P.P.C. and his sentence of imprisonment for life was reduced to ten years' R.I. with fine in circumstances.

Ghulam Qadir v. Esab Khan and others 1991 SCMR 61; Shabbir Ahmad v. The State PLD 1995 SC 343; Ali Sher v. The State 1999 PCr.LJ 682; Ghulam Yasin and 2 others v. The State PLD 1994 Lah. 392; Muhammad Ishaq v. The State 1998 PCr.LJ 1110; Ghulam Farid v. The State 1997 PCr. LJ 1411; Akbar v. The State 1997 PCr. LJ 1887 and Muhammad Ayub v. The State 1997 PCr.LJ 2056 ref.

(b) Penal Code (XLV of 1860)‑‑‑‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Principle‑‑‑Where the prosecution fails in its version, the defence story prominently comes to the rescue of accused and when his statement under S.342, Cr.P.C. is inspiring confidence and helps in determining his role in the crime, his statement has to be taken as a whole.

Ghulam Qadir v. Esab Khan and others 1991 SCMR 61 amd Shabbir Ahmad v. The State PLD 1995 SC 343 ref.

S.M. Ayub Bukhari for Appellant.

Riaz Ahmad for the State., Date of hearing: 4th March, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 268 #

P L D 2002 Lahore 268

Before Muhammad Sair Ali, J

WATER AND POWER DEVELOPMENT AUTHORITY through

Chairman, WAPDA, Lahore‑‑‑Petitioner

Versus

Mian ABDUL RAUF‑‑‑Respondent

Civil Revision No. 1504 of 1995, heard on 23rd January, 2002.

(a) Land Acquisition Act (I of 1894)‑‑‑‑‑‑‑Ss. 4, 18 & 23‑‑‑Civil Procedure Code (V of 1908), O.XXIII, R.3‑‑Acquisition of land‑‑‑Reference to Court for enhancement of amount of compensation‑‑‑Compromise decree, execution of‑‑‑Court on reference made 'to it under S.18 of Land Acquisition Act, 1894, enhanced the rate of compensation through compromise decree and landowner filed execution petition‑‑‑Landowner, subsequently filed another suit for perpetual injunction which was decreed on the basis of compromise arrived at between the parties‑‑‑Subsequent compromise decree reduced the rate of compensation fixed through the earlier compromise decree‑‑‑Validity‑‑‑Subsequent decree was to be executed through filing of an independent execution petition, whereas earlier decree whereby rate of compensation was enhanced, was independent of subsequent decree‑‑‑Subsequent compromise decree, ipso facto could not be treated to have amended earlier decree by merely incorporating words in compromise that earlier decree would be deemed to have been amended to the extent of compromise‑‑‑In order to amend earlier decree, parties were legally obliged to undertake necessary proceedings for seeking amendment therein through obtaining an order of Court passing the decree‑‑‑No such proceedings having been undertaken and no order having been obtained from the relevant Court by parties, consent or compromise between parties in subsequent suit without an appropriate order from Court passing the earlier decree, could not be taken to have effected any change or amendment in earlier decree.

(b) Civil Procedure Code (V of 1908)‑‑‑‑‑‑‑0. XXIII, R.3‑‑‑Compromise decree‑‑‑Decree passed on merits‑‑‑Nature and execution of‑‑‑Procedure‑‑‑Compromise decree only amounted to an agreement between the parties, superimposed by seal of 'Court, but such superimposition of Court's seal would not make compromise decree untouchably sacred as parties still had option to amend terms thereof mutually‑‑‑Such facility was not available in case of a decree passed on merits by a Court of competent jurisdiction and parties could not amend same at their own option or deem same to have been amended by their agreement‑‑‑Such decree had to be executed by Executing Court in terms in which , same was passed‑‑‑Executing Court had no power either to amend decree or to deem same to have been amended by parties without obtaining an appropriate order/judgment from the Court that passed the decree.

(c) Civil Procedure Code (V of 1908)‑‑‑‑‑‑‑0. XXIII, R.3 & O.XXI, R.2‑‑‑Execution of compromise decree‑‑Executing Court was not powerless to cater for a situation where parties entered into an agreement relating to subject‑matter of decree or as to such decree's satisfaction or adjustment‑‑‑Would be illogical and unreasonable to shelve an Executing Court as powerless‑‑‑Legislature in its supreme wisdom had well provided for such eventualities and cases in provisions of R.2, O.XXI, C.P.C.‑‑‑Parties under O.XXI, R.2, C.P.C. had been allowed option to adjust their respective rights and liabilities under a decree mutually by payment or adjustment, either wholly or partially and out of Court or in Court, in terms of R.2(1), OXXI, C.P.C.

Muhammad Ilyas Khan for Petitioner. Abdul Quddus for Respondent.

Date of hearing: 23rd January, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 274 #

P L D 2002 Lahore 274

Before Ali Nawaz Chowhan, J

Messrs ALLIED GROUP VENTURES LIMITED‑‑‑Petitioner

Versus

QUALf1'Y VISION (PVT.) LIMITED and others‑‑‑Respondents

Civil Revision No. 105 of 2002, decided on 26th February, 2002.

(a) Civil Procedure Code (V of 1908)‑‑‑‑‑‑‑0. VIII, R.1 [as inserted by Notification, dated 2nd October, 2001]‑‑Written statement, filing of‑‑‑Extension in time‑‑‑Powers of Trial Court‑‑Defendant under the amended O.VI1i, R.1, C.P.C. has not to file a written statement on being asked by the Court but has to present a written statement before the first hearing or within such time as the Court may permit‑‑Discretion of the Court to allow more than two adjournments has been curtailed‑‑‑Powers of the Court allowing the period for filing of written statement beyond 30 days ordinarily has also been curtailed' by the first proviso to O.VIII, R.1. C.P.C.

(b) Civil Procedure Code (V of 1908)‑‑‑‑‑‑‑0. V, R.5 & OAX, R.6‑‑‑Word 'hearing'‑‑‑Connotation‑‑‑If the summons indicate that the case is fixed for first day of hearing, it has to be taken as the. first day of hearing according to the provisions of O.IX. R.6, C.P.C.‑‑‑Where there is no such indication of hearing in the summons, the same implies that a case has not been fixed for the first date of hearing but 01, something else and the Court has to proceed for other business‑‑‑If case is fixed for first hearing of a suit and it appears that the parties are not at issue, which can be gathered from their written statement or otherwise when they appear in the Court, a judgment can be pronounced, otherwise issues are to be framed under the requirements of O.XIV, C.P.C. and the suit proceeds further.

(c) Civil Procedure Code (V of.1908)‑‑‑‑‑‑‑0. VIII, R.1 [as inserted by Notification dated 2‑10‑2001], O.IX, R.3 & O.X, R.6‑‑‑Written statement, filing of‑‑‑Case not fixed for hearing‑‑Dispute was that the written statement filed by the defendant was after two dates of hearing and the same was against the provisions'of O. VIII, R.1 [as inserted by Notification dated 2‑10‑2001]‑‑‑Validity‑‑‑When the suit was not fixed for hearing, the same could neither be dismissed nor an ex parte order passed against the defendant because both in O.IX, R.3 & O.X, R.6, C.P.C. the requirement was the fixation of the suit for hearing‑‑‑On one date the counsel for the defendant had filed memo. of appearance and on the other date power of attorney was filed, such two dates could not be considered as the adjournment based on the requirements of O.VIII, R.1, C.P.C. and therefore, the provisions of proviso (2) to O.VIII, R.12, C.P.C. were not attracted‑‑‑High Court declined to interfere with the order passed by the Trial Court in circumstances.

(d) Civil Procedure Code (V of 1908)‑‑‑‑‑‑‑0. VIII, R.1, proviso 2 [as inserted by Notification dated 2‑10‑2001]‑‑Filing of written statement‑‑‑Provisions of O.VIII, R.1 [as inserted by Notification dated 2‑10‑2001]‑‑‑Object and effect‑‑‑If the provisions of second proviso to O.VIII, R.1, C.P.C. are to be strictly applied which is also the intention of law and for speedy disposal of cases at the initial stage of the suit, the Civil Courts have to spell out the purpose for which they were calling the defendant before the Court, while ensuring that a defendant gets all of his documents for filing a written statement within the periphery of second proviso to O.VIII, R.1, C.P.‑C.

Saleem Zulfiqar Khan for Petitioner.

Syed Masood Ahmad Shah for Respondents.

PLD 2002 LAHORE HIGH COURT LAHORE 280 #

P L D 2002 Lahore 280

Before Karamat Nazir Bhandari and Syed Zahid Hussain, JJ

KHALID HUSSAIN through Aftab Hussain ‑‑‑Petitioner

Versus

MUHAMMAD BAQIR and 2 others‑‑‑Respondents

Civil Revision No.290 of 2001, decided on 21st February, 2002.

Punjab Pre‑emption Act (IX of 1991)‑‑‑‑‑‑‑S. 13(3)‑‑‑West Pakistan General Clauses Act (VI of 1956), S.26‑‑‑Civil Procedure Code (V of 1908), 5.115‑‑‑Notice of Talb‑i‑Ishhad‑‑‑Evidence of postman‑‑‑Contention that proving of postal receipt was responsibility of preemptor‑‑‑Validity‑‑‑Pre‑emptor had to make Talb‑i‑Ishhad under the provisions of S.13(3) of Punjab Pre‑emption Act, 1991, by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due ‑‑‑Pre‑emptor had to confirm his intention to exercise the right of pre‑emption in the notice‑‑‑It was not understandable as to how the pre‑emptor could be obliged to prove receipt of the notice ‑‑‑Pre‑emptor proved the sending of notice by tendering in evidence the postal receipt as also the copy of the notice‑‑‑Acknowledgement due receipt was also on record‑‑‑Producing in evidence acknowledgement due receipt might be justified to complete the process of transmission of the notice but if it was not shown that notice had also been received, the pre‑emptor could not be non‑suited on such ground‑‑‑Once a pre‑paid and properly addressed envelope had been delivered, under the provisions of S.26 of the West Pakistan General Clauses Act, 1956, the same was presumed to have reached the addressee in due course of mail‑‑‑Appellate Court had wrongly set aside the decree as a whole without discussing and recording findings on other issues‑‑‑Appellate Court without any basis had asked the Trial Court to decide all the issues afresh, assuming that the evidence of the postman as witness was necessary‑‑‑Judgment and decree passed by the Appellate Court was set aside and appeal was remanded for decision afresh accordingly.

Muhammad Rafiq v. Ghulam Murtaza 1998 MLD 292; Fateh Muhammad and 2 others v. Gulsher 2000 CLC 409 and Mst. Aisha v Rahim Bakhsh and others PLD 1997 Lah. 649 distinguished.

Abdul Malik v. Muhammad Latif 1999 SCMR 717 ref.

Nadeem Mehmood Mian for Petitioner. Mirza Hanif Baig for Respondent No. 1.

Date of hearing: 18th February, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 283 #

P L D 2002 Lahore 283

Before Muhammad Nawaz Abbasi, J

Mst. IRFANA SHAHEEN ‑‑‑Petitioner

Versus

ABID WAHEED‑‑‑Respondent

Criminal Miscellaneous Nos. 109‑H and 130‑H of 2001, decided on 2nd October, 2001.

(a) Criminal Procedure Code (V of 1898)‑‑‑‑‑‑‑S. 491‑‑‑Writ of habeas corpus‑‑‑Scope‑‑‑Powers under 5.491, Cr.P.C. were to be exercised only in cases of illegal and improper custody and not for any other consideration including social status and financial position of the parties.

(b) Islamic Law‑‑‑‑‑‑‑ Custody of minor‑‑‑Adoption‑‑‑Right of Hizanat of foster mother in respect of an adopted minor‑‑‑Parties being husband and wife had willingly adopted infant child jointly when they were in marriage‑‑‑After dissolution of marriage ex‑wife in exercise of right of Hizanat of mother in Islam claimed custody of infant child on the ground that after dissolution of marriage between the parties the man being not real ‑ father of the child would have no special or preferential right over female to retain custody of minor child‑‑‑Validity‑‑‑Female partner in adoption had accepted duty and responsibility of bringing up the child with motherly love and affection which responsibility could not be discharged by the male‑‑‑Female being the most essential partner of adoption in light of concept of right of custody of such child in Islam, would exclusively be entitled to custody of the female child‑‑‑Welfare .of the child would also demand that minor girl should remain in custody of female partner of adoption‑‑‑Female partner having enjoyed status of mother of the minor would be entitled to retain her custody in exercise of right of Hizanat and would not be deprived of such right‑‑‑High Court directed that custody of‑ minor with female partner was not to be disturbed except in accordance with law.

(c) Islamic Law‑‑‑‑‑‑‑ Custody of minor‑‑‑Abandoned child‑‑‑Newly born child was found lying in an open space and the petitioner being an issueless lady having desired for the child, with consent of local police and respectable of the area, obtained custody of the infant as an adopted child‑‑‑Lady, having willingly adopted the child should have exclusive right to retain custody of child and institution of Gehwara or any other official organization or a private person, except real mother and father of the child, would have no right to deprive the said lady from custody of child as mother‑‑‑Lady having voluntarily accepted responsibility of bringing up the child as her daughter, she would be entitled to custody of child adopted by her without intervention of "Gehwara Institution" ‑‑‑Lady in the interest of welfare of child and to regulate matters relating to custody as an adopted child, would give undertaking to Gehwara for giving motherly love and affection to the child and abide by rules and regulations of Gehwara relating to adoption of child.

(d) Constitution of Pakistan (1973)‑‑‑‑‑‑‑Part II, Chap. 2 [Arts. 29 to 40]‑‑‑Principles of Policy, Arts. 31 & 35‑‑Providing shelter to orphan, destitute etc.‑‑‑Mandate of Holy Qur'an‑‑Federal and Provincial Governments are under Constitutional obligation to establish institutions like Gehwara at large scale to regulate the affairs of unattended children in the light of the mandate of Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) as provided in Chap.2 of Part II of the Constitution of Pakistan (1973).

Ghulam Rabbani Qureshi for Petitioner.

Tanvir Iqbal for Respondent.

Dr. Zubair Awan:- Amicus curiae.

PLD 2002 LAHORE HIGH COURT LAHORE 290 #

P L D 2002 Lahore 290

Before Nazir Ahmad Siddiqui and Muhammad Farrukh Mahmud, JJ

Malik MUHAMMAD MAJEED‑‑‑Appellant

Versus

GOVERNMENT OF PAKISTAN‑‑‑Respondent

Intra‑Court Appeal No. 200, of 2000, decided on 12th September, 2001.

(a) Constitution of Pakistan (1973)‑‑‑‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Entitlement to relief‑‑‑Conditions precedent‑‑‑Person seeking relief must show that the right (infringement of which was complained) had accrued to him or earned by him in a born; tide, transparent and lawful manner in the matter in issue‑‑‑If it was so, he would qualify for relief prayed for, otherwise he would not be entitled to any‑ relief, what to talk of equitable relief.

(b) Contract Act (IX of 1872)‑‑‑‑‑‑S.188‑‑‑Extent of agent's authority‑‑‑Where an attorney/representative/ agent did anything beyond the instructions given by his principal, the same would not be binding upon the principal.

(c) Estoppel‑‑‑‑‑‑Promissory estoppel ‑‑‑Rules of promissory estoppel cannot be taken as a defence by a party who has indulged in fraud or collusion for obtaining some benefits‑under the representation, and he cannot be rewarded by enforcement of the promise‑‑‑Such rule shall help the persons equipped with "legal right", who have not smeared their hands with malice.

Pakistan through Secretary, Ministry of Commerce v. Salla‑ud‑Din and 3 others PLD 1991 SC 546 ref.

(d) Estoppel‑‑‑‑‑‑No agency or Authority can be held bound by a promise or representation not lawfully extended or given.

Pakistan through Secretary, Ministry of Commerce v. Salla‑ud‑Din and 3 others PLD 1991 SC 546 ref.

(e) Locus poenitentiae, principle of‑‑‑‑‑‑ Rules of locus poenitentiae would help the persons equipped with the "legal right" whose hands were not smeared with malice.

(f) Pakistan Cantonments Property Rules, 1957‑‑‑‑‑‑Rr. 2(d), 6, 7, 8 & 9‑‑‑Cantonments Act. (II of 1924), Ss.108 & 280(1)(2)(a)(b)‑‑‑Cantonments Land Administration Rules, 1937, Rr.3, 4, 6, 7, 9(5)(6), 28 & 43(i)(ii)(iii)‑‑‑Central Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1965), S.3(i)‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Authority of Cantonment Board to change the purpose of lease after re‑classification of land from Class "C" to "B"‑‑Federal Government out of Survey No.85 sanctioned lease of land in favour of appellants being highest bidders for establishment of service station‑‑Appellant submitted plan for proposed construction, but Cantonment Board did not sanction the same and directed him to submit fresh plan as the land could be utilized for commercial purposes viz. show‑room/shops and offices etc. ‑‑‑Cantonment Executive Officer on behalf of the President of Pakistan (lessor) executed lease deed in favour of appellant (lessee), wherein the purpose was shown as "commercial use except hotel, cinema and petrol pump" ‑‑‑Appellant, after getting the plan sanctioned by Cantonment Board constructed a double storey commercial building in the shape of restaurant, shops/offices‑‑‑Federal Government on coming to know about said construction having been raised in utter disregard of the purpose for which the land was leased out, cancelled the lease and issued notice to appellants under S.3(i) of Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, for handing over possession of the building‑‑‑Constitutional petition filed by appellant was dismissed by High Court ‑‑Validity‑‑‑Survey No.85 was re‑classified from Class "C" to "B" in terms of. R.7 of Pakistan Cantonments Property Rules, 1957, thus, the same vested in Federal Government under the management of Cantonment Board subject to the conditions laid down under R.43 thereof‑‑‑Proceedings, right from holding of auction of land and confirmation of its lease in favour of appellant for establishing a service station, had taken place treating the same as a Class "B" land vesting in Federal Government‑‑Class "B" land could not be dealt with by Cantonment Board in the context of modifying its use without first getting approval from Federal Government‑‑‑Federal Government under R.7 of Pakistan Cantonments Property Rules, 1957, had right of resumption of .land, if the same was not used for the object for which it had been granted‑‑Cantonment Board was not competent to alter the purpose of lease from establishing a service station to a commercial building without getting approval or sanction from Vederal Government, which alone was empowered to do so‑‑‑Purpose of establishing a service station, being a limited commercial activity, had fetched a bid of Rs.1,65,000 in year 1978, whereas the changed purpose being a wider attractive commercial activity in the shape of commercial building in year 1982, naturally would have attracted more persons to get this piece of land at a highly increased competitive rate‑‑Change of purpose of lease had taken place in a clandestine manner and with ulterior motive to promote the vested interest of beneficiaries particularly those of appellants and their conduct was not above‑board, thus, they could not be encouraged by showing any indulgence in exercise of Constitutional jurisdiction, as the same would amount to give a premium to their designs aimed at gains not warranted under law and well‑settled principles of equity ‑‑‑Intra‑Court Appeal was dismissed while the order of dismissal of Constitutional petition was maintained with observations that (i) if Authorities intended to keep the present building, then appellant might recover actual costs of construction thereof in accordance with law; (ii) in case Authorities intended to demolish the building, then appellants would be given a period of two months to remove the superstructure; and (iii) the articles taken by Authorities at the time of taking possession of building would be immediately returned to appellants with reference to inventory prepared by Court.

Messrs Airport Support Services v. The Airport Manager, Quaid‑eAzam, International Airport, Karachi and others 1998 SCMR 2268; Ch. Anwar M. Khan and 6 others v. The Director of Industries and Mineral Development and another PLD 1994 Lah. 70; Muhammad Hussain v. Waheed Ahmad and 3 others 2000 MLD 281; Islamization of Laws‑‑Public Notice No.5/83 PLJ 1984 FSC 1; Sh. Azmatullah v. Military Estate Officer, Lahore Circle, Lahore Cantt. and 2 others PLD 1979 Lah. 911; Mazhar Hussain v. Province of Punjab PLD 1985 Lah. 394; Abdul Haq and 2 others v. The Resident Magistrate, Uch Sharif and 6 others PLD 2000 Lah. 101; Abdul Hameed v. Province of Punjab and others 1991 CLC 1666; Muhammad Yousaf v. I.‑G. of Police and 4 others PLD 1997 Lah. 135; Malik Meraj Khalid v. The Islamic Republic of Pakistan through its President and another PLD 1988 Lah. 325; Jalla v. Abdul Hayee PLD 1988 Lah. 234; Anjuman Jamila Tauheedia (Regd.) v. Deputy Commissioner/District Magistrate and another 1990 MLD 1468; Syed Wasey Zafar and 4 others v. Government of Pakistan and others PLD 1994 SC 621; Ali Mir v. Province of Punjab and another PLD 1983 Lah. 262; Muhammad Yaqoob v. Government of Punjab and 3 others 1996 CLC 264; Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. and others 1998 CLC 1890; Capital Development Authority through Chairman, and others v. Dr. Abdul Qadeer Khan and others 1999 SCMR 2636; Government of Sindh through Secretary, Home Department, Karachi and another v. Abbas Ahmad, Advocate and 2 others 1994 SCMR 923; Municipal Committee, Daska through its Chairman v. Messrs Farhat Nadeem & Co. M.C. Daska through Mubarak Ali Butt and 5 others 1994 SCMR 1235; Abdul Qadeer Khan and others v. Chairman, C.D.A. through its Chairman and others 1999 YLR 247; Muhammad Ishaq and another v. Collector, Lahore, District Lahore and others 2000 YLR 1074; Daewoo Corporation through Attorney v. National Highway Authority through Chairman 2000 MLD 1745; Messrs Travel Express Ltd. v. Services Club and 2 others 1986 CLC 2642; Mian Bashir Ahmed v. The Government of Sindh through Chief Secretary, Sindh Secretariat, Karachi and 3 others 1997 MLD 1847; National Industrial Cooperative Credit Corporation Ltd. and another v. Province of Punjab/Government of Punjab through Secretary, Cooperative Department and another PLD 1992 Lah. 462; The Province of Punjab and another v. National Industrial Cooperative Credit Corporation and another 2000 SCMR 567; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Pyramid Builders (Pvt.) Ltd. v. Lahore Development Authority 1998 MLD 595; Karim Charania v. Nabi Bux Bhurgari 1998 MLD 812; Zulfiqar Ali v. Divisional Superintendent (Workshops), Pakistan Railways, Moghalpura, Lahore and another PLD 2001 Lah. 13; Ziauddin Hospital Trust through Trustee and Medical Director v. Director‑General/Commissioner, Excise and Taxation, Sindh, Karachi PLD 2001 Kar. 52; Network Television Marketing Ltd. v. Government of Pakistan and another 2001 CLC 681; Ardeshir Cowasjee and 4 others v. Clifton Cantonment Board and 28 others 1998 MLD 1818; Asif Iqbal v. Karachi Metropolitan Corporation and 2 others PLD 1994 Kar. 60; Syed Muhammad Khurshid Abbas Gardezi and others v. Multan Development Authority and others PLD 1983 SC 151; Nawabzada Muhammad Umar Khan and 4 others v. Pakistan through Secretary, Cabinet Division and 2 others PLD 1982 Pesh. 1; Owaisco v. Federation of Pakistan and others PLD 1999 Kar. 472; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Saiyyid Abul A'la Maudoodi and 2 others v. The Government of West Pakistan and others PLD 1964 SC 673; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Riazuddin v. Chairman, PIA Corporation and 2 others PLD 1992 SC 531; ‑ Mohtarma Benazir Bhutto v. The President of Pakistan through the Secretary to the President PLD 1992 SC 492; Mst. Abeda Begum v. Government of ,akistan and others 1985 CLC 2859; Mst. Qaisra Ellahi v. Hazara (Hill Tr ~ t) Improvement Trust through Chairman and 5 others PLD 1995 Pesh. 22; Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907; Pakistan through the Secretary, Ministry of Defence v. Province of Punjab and others PLD 1975 SC 37 and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others PLJ 1999 SC 2331 ref.

(g) "Legal right"‑‑‑‑‑‑ Meaning and connotation‑‑‑Legal right is an interest recognized and protected by a rule of right and an interest, respect of which is a duty and disregard of which is a wrong‑‑‑Infringement of which can be remedied through a process of law.

Umar Atta Bandial and Amin‑ud‑Din Khan for Appellant.

S.M. Zafar and Syed Muhammad Ali Gillani for the Cantonment Board, Multan.

Ch. Saghir Ahmad, Standing Counsel for the Federation of Pakistan.

Dates of hearing: 27th June, 4th, 5th and 6th July, 2001.

PLD 2002 LAHORE HIGH COURT LAHORE 330 #

P L D 2002 Lahore 330

Before Khawaja Muhammad Sharif, J

SANA ULLAH‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1217 of 2000, decided on 29th March, 2002.

(a) Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 420, 419/34, 468/34, 471/34, 161/34 & 165/34‑‑‑Appreciation of evidence‑‑‑Accused was an Advocate who was appearing in the examination on behalf of his senior Advocate (acquitted co‑accused) by impersonating him‑‑‑Case against accused and acquitted co‑accused having been proved through unbiased and natural statements of prosecution witnesses, no prejudice whatsoever had been caused to them‑‑‑Both accused hang remained for quite some time with the prosecution witnesses, no identification pale was required to be held in the case and, their identification in the Court was sufficient‑‑Mere fact that the application form for the post of Additional District and Sessions Judge (for which the accused appeared in the examination impersonating his senior) was the photocopy and not admissible in evidence could not be pressed into service for setting aside the conviction‑‑‑Whole game was actually being played by the acquitted co‑accused and the accused was only a lever in his hands to take his evil design to its logical end‑‑‑Prosecution witnesses being the Additional Registrar of High Court and the Naib Qasid were independent and impartial witnesses and their credibility was beyond any doubt‑‑‑Acquitted co‑accused had also tried to make a bargain with the prosecution witness‑‑‑Motive with the acquitted co‑accused, was that in case he had succeeded in his plan, he would have been appointed for the advertised post of Additional District and Sessions Judge‑‑‑Guilty conscience of both the accused was also proved by the fact that their counsel had refused to accept the offer made by the Additional Advocate General even before the High Court to send their signatures on the questioned documents to Handwriting Expert for comparison‑‑‑Prosecution had proved its case against the accused as well as against the acquitted co‑accused beyond any doubt‑‑‑Conviction and sentences of accused were upheld in circumstances except those awarded under 5.420, P.P.C. which were set aside being not attracted in the case‑‑Order of Trial Court acquitting co‑accused was, however, set aside and he was convicted under Ss.419/34, 468/34, 471/34 & 161/34, P.P.C. read with S.165/34, P.P.C. and sentenced thereunder to different terms of imprisonment with fine‑‑‑Appeal of accused was dismissed and appeal against acquittal of co‑accused was accepted accordingly.

PLD 1997 Lah. 692; 1996 MLD 1874; 1999 PCr.LJ 1843; PLD 1965 Kar. 131; 1982 PCr.LJ 658; 1990 MLD 46; 1995 SCMR 246; 1993 SCMR 550.; 2000 PCr.LJ 1995; PLD 1985 SC 144; 1991 PCr.LJ 826; 1977 PCr.LJ 870; PLD 1980 SC 225; 2000 PCr.LJ 1995; Muhammad Yousaf Zai v. The State PLD 1988 Kar. 539 and 1971 SCMR 530 ref.

(b) Evidence‑--

‑‑‑‑ Documentary evidence‑‑‑Evidentiary value‑‑‑Documentary evidence is only a corroborative piece of evidence and merely on the basis of any lacuna it cannot be made a ground either not to record the conviction or set aside the same.

‑‑‑‑Witness‑‑‑Principle‑‑‑Single witness whose credibility is beyond any doubt can be relied upon for recording conviction against an accused.

1971 SCMR 530 rel.

Mian Muhammad Sikandar Hayat with S.D. Qureshi for Appellant.

Muhammad Hanif Khatana, Addl. A.‑G. for the State.

Dates of hearing: 21 it and 22nd March, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 341 #

P L D 2002 Lahore 341

Before M.A. Shahid Siddiqui, J

Sahibzada Syed SIKANDAR SHAHEEN --- Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.26 of 2002, heard on 13th March, 2002.

(a) Criminal Procedure Code (V of 1898)-------S. 247---Non-appearance of complainant---Effect---Apparently in case of non-appearance of the complainant after the issuance of process under S.204, Cr.P.C., it is imperative.upon the Court to acquit the accused, but the provision is not so stringent as it appears to be---Court has discretion and it may adjourn the hearing of the case to some other day despite the nonappearance of the complainant for the reasons which the Court deems appropriate.

(b) Penal Code (XVI of 1860)

------ Ss. 302, 392, 324, 337-F(iii), 452, 354, 365/511, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17--Criminal Procedure Code (V of 1898), Ss.247 & 439---Complaint dismissed for non-prosecution ---Validity---Complianant had produced his evidence but process had not yet been issued by the Court against the accused---On one date the complainant and his counsel both were absent when the .case was called, but the Court did not consider it appropriate to dismiss the complaint in default---Case was then transferred to the Sessions Court which dismissed the same for non-prosecution by the impugned order---Validity---Not imperative upon the Court to dismiss a complaint before the issuance of process for non-appearance ,.of complainant or his counsel---Complaint contained cross-version of a' case in which the complainant was facing trial in the Special Court constituted under the Anti-Terrorism Act, 1997--Complainant had examined his .witnesses and if he was compelled to file a fresh complaint and examine the witnesses afresh, it would not only expose him to inconvenience but would also protract the proceedings unnecessarily---Impugned order having no legal compulsion, would not advance the cause of justice and thus same was held to be improper in the exercise of revisional jurisdiction---Impugned order was consequently set aside and the case was remitted to the Sessions Court with the direction to proceed in accordance with law---Revision petition was allowed accordingly.

-------S. 247---Non-appearance of complainant---Ordinarily if it appears to the Court that the complainant is not interested in the prosecution of his complaint, it has inherent powers to dismiss the same for non-appearance of the complainant---Such order does not prevent the complainant from filing a fresh complaint because the absence of the complainant is not to be followed by an order of acquittal of the accused as envisaged under S.247, Cr.P.C.

Mian Muzaffar Ahmad for Petitioner.

Ch. Nazir Ahmad for the State.

Date of hearing: 13th March, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 345 #

P L D 2002 Lahore 345

Before Ali Nawaz Chowhan, J

Syed MUHAMMAD NASIR HUSSAIN

through General Attorney‑‑‑Petitioner

Versus

PAKISTAN ATOMIC ENERGY COMMISSION

through Chairman‑‑‑Respondent

Writ Petition No.2863 of 2001, decided on 8th March, 2002.

Pakistan Essential Services Act (LIU of 1952)‑‑‑‑‑‑‑Ss. 7(3)/5(1)(a)(b)‑‑‑Constitution of Pakistan (1973) Art. 199‑‑Constitutional petition‑‑‑Quashing of proceedings ‑‑‑Accsued was awarded a Government scholarship for higher studies and he with the consent of his employer, had proceeded abroad with the condition that he will rejoin services after completion of his studies‑‑‑Accused failed to fulfil the condition‑‑‑Case against the accused was that he had caused a loss to the respondent against the scholarship money given to him on the assurance that he would return‑‑‑Accused was to avail the scholarship which extended to one year 4nitially and to a further period of 60 months, meaning thereby that his services were dispensed with for all that period and were, therefore, not immediately essential for the Institution, otherwise he would not have been allowed to go abroad with consent‑‑‑Provisions of the Pakistan Essential Services (Maintenance) Act, 1952, were to be construed strictly being penal in nature and were to be read in harmony with each other‑‑‑Accused had proceeded abroad with the consent of the respondent and had breached his contract while abroad by not coming back, although according to him he had not been asked to join his duties, his case therefore, was one of civil liability and was not covered under the criminal provisions of the Pakistan Essential Services Act, 1952, even if the same were stretched to their limit‑‑Proceedings pending against the accused under the Pakistan Essential Services (Maintenance) Act, 1952, in the Court of Magistrate were quashed in circumstances ‑‑‑Contitutional petition was accepted accordingly.

M. Kowkab Iqbal for Petitioner. Miss Jamila Aslam for Respondent.

PLD 2002 LAHORE HIGH COURT LAHORE 350 #

P L D 2002 Lahore 350

Before Maulvi Anwarul Haq, J

Malik GUL MUHAMMAD‑‑‑Petitioner

Versus

MUSSARAT BEGUM and others‑‑‑Respondents

Civil Revision No. 1651 of 1995, decided on 18th February, 2002. . .

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑‑‑‑Art. 84‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Suit for specific performance of agreement to sell‑‑‑Document, proof of‑‑‑Comparison of signatures‑‑‑Jurisdiction of Court‑‑‑Agreement to sell relied upon by the plaintiff was examined by the Appellate Court itself and observed that the signatures of the owner of the suit property were forged as the same appeared to be tracing‑‑‑Appeal was allowed by the Appellate Court and judgment and decree passed by the Trial Court in favour of the plaintiff was set aside‑‑Validity‑‑‑Powers conferred on a Court under Art.84 of the Qanun‑eShahadat, 1984 (S.73 of Evidence Act, 1872) included the examination of suspected document by the Court to determine as to whether the signature was tracing‑‑‑Plaintiff failed to point out any misreading or non‑reading of the evidence on record‑‑‑Conclusion arrived at by the Appellate Court was supported by the evidence on record and the finding was maintained by High Court in exercise of revisional jurisdiction.

(b) Civil Procedure Code (V of 1908)‑‑‑‑‑‑‑O.XLI, R.33 & S. 115‑‑‑Correction of error‑‑‑Jurisdiction of revisional Court‑‑‑Consolidated judgment‑‑‑Decreeing a suit against which no appeal had been filed‑‑‑Two suits one for ‑specific performance of agreement to sell and the other for partition of the suit property were decided by Trial Court vide one consolidated judgment‑‑‑Appeal before Appellate Court was filed against the decree passed in the suit for specific performance while no appeal was filed in the partition suit‑‑‑Appellate Court dismissed the suit for specific performance of agreement to sell and the other suit was also dismissed as no appeal had been preferred‑‑‑Validity‑‑‑Consolidated judgment was before the Appellate Court and the Court was vested with powers under O.XLI, R.33, C.P.C. to pass any decree which ought to have been passed‑‑‑Such power was not subject to filing of appeal by a party, provided the party was before the Court‑‑‑Appellate Court had failed to exercise the jurisdiction vested in it under O.XLI, R.33, C.P.C,‑‑‑When it was found that decree in favour of the plaintiff of the suit for specific performance of agreement to sell was not sustainable and when only reason for dismissing the suit for partition stated in the consolidated judgment was that the suit for specific performance was being decreed, the Appellate Court ought to have passed a preliminary decree for parrtition‑‑‑Such error in the judgment could be corrected in exercise of revisional jurisdiction.

Mukhtar Ahmad Butt for Petitioner.

Nemo for Respondents Nos. 1 and 19.

Muhammd Iqbal for Respondents Nos. 2 to 18.

Date of hearing: 18th February, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 355 #

P L D 2002 Lahore 355

Before Mian Saqib Nisar, J

Khawaja ANWAR HASSAN ---Petitioner

Versus

NAVEED AHMAD CHAUDHRY and 2 others---Respondents

Writ Petition No. 15333 of 2001, heard on 11th February, 2002.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-----S. 13(6)---Recovery of arrears or future rent---Jurisdiction of Rent Controller under S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959---Tenant failed to deposit tentative rent, resultantly his defence was struck off and possession of the premises was handed over to the landlord---Rent Controller directed the tenant to deposit the arrears of rent and future rent as determined under S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959---Direction of the Rent Controller was affirmed by Appellate Court---Plea raised by the tenant was that arrears and future rent could not be recovered as decided in the tentative rent order ---Validity--When tentative rent order as passed under the provisions of S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, was not complied with, the only option left with the Rent Controller was to strike off the defence of the tenant and :order for his eviction---While doing so, the Rent Controller had no jurisdiction to pass order for the recovery of arrears or the future rent, because according to the first part of S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Rent Controller could only approximately fix the rent and direct the tenant to make such payment--If the tenant made default in the compliance of such order, his defence. was liable to be struck off and the landlord was to be put in possession of the property without any further proceedings in the case---Amount of the rent due from the tenant was finally determined under the second part of S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, and after such determination the tenant could then be directed to pay the same to the landlord---Stage of final determination, under the second part of S.13(6) of the West Pakistani Urban Rent Restriction Ordinance, 1959, would only reach if the determination had been made on the basis of the evidence on record---Where the defence had been struck off under the first part of S.13(6) of the West Pakistan Urban Rent Restriction Ordinance, 159, the stage did not reach that point and therefore, the Rent Controller had no jurisdiction to determine the final amount due from the tenant---Orders passed by the Court below directing the tenant to make payment of rent were illegal, without jurisdiction, without lawful authority and the same were set aside.

Mian Abdul Aziz for Petitioner.

Sohail Asghar and Ch. Manzoor Ahmad for Respondent.

Date of hearing: 11th February, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 359 #

P L D 2002 Lahore 359

Before Ch. Ijaz Ahmzzd, J

NISAR-UL-HAQ---Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATOR CITY through Nazim and 2 others---Respondents

Writ Petition No.3050 of 2002, .decided on 21st February, 2002.

(a) Constitution of Pakistan (1973)-------Art. 199---Civil Procedure Code (V of 1908), O. I, R.8---Constitutional petition---Provisions of Civil Procedure Code, 1908---Applicability---Filing of Constitutional petition in representative capacity---Validity---Principles of C.P.C. are applicable in Constitutional proceedings---Where the petitioner had filed the Constitutional petition in violation of mandatory provisions of 0.1,, R.8, C. P. C. the petition was liable to be dismissed.

Anjuman-e-Arayan, Bhera v. Abdul Rashid PLD 1973 Lah. 500 rel.

(b) Interpretation of Constitution--- --Form of Constitution- -Constitution is based on trichotomy of powers.

Zia-ur-Rehman's case PLD 1973 SC 49 rel.

(c) Constitution of Pakistan (1973)-------Art. 199---Constitutional jurisdiction of High Court---Scope---High Court has only power to interpret the law and has no jurisdiction to take the role of policy maker in the garb of interpretation.

Zanur Ahmad Khan's case 1978 SCMR 327 rel.

(d) Punjab Local Councils (Lease) Rules, 1990-------S. 2---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Public auction---Giving seven leases/contracts to one person and imposing of condition to deposit Rs.1,00,000 by the bidders prior to taking part in auction proceedings---Validity---Action of the Authorities was in public interest---Instead of dealing 'with seven different persons it was easy to deal with one person for smooth running---Was also in public interest to direct the bidder to 'deposit Rs.1,00,000 for testing his bona fides---Where lease in question was not leased out for the last year, the period mentioned in the advertisement was not prejudicing rights of any person which was in fact prescribed by the policy maker in the public interest---Constitutional petition was dismissed in circumstances.

Jan Muhammad v. Municipal Corporation, Faisalabad 1998 MLD 1151 distinguished.

(e) Constitution of Pakistan (1973)------Art. 199---Constitutional petition---Clean hands---Where the petitioner did not approach High Court with clean hands, the Court declined to exercise its discretion in his favour---Petition was dismissed in circumstances.

Nawabazada Raunaq Ali's case PLD 1973 SC 236 rel.

Rana Muhammad Akram for Petitioner. Fowzi Zafar, A.A.-G. for Respondents.

PLD 2002 LAHORE HIGH COURT LAHORE 362 #

P L D 2002 Lahore 362

Before Abdul Shakoor Paracha, J

SAIN AKHTAR‑‑‑Petitioner

Versus

MUHAMMAD YUSUF and 3 others‑‑‑Respondents

Civil Revision No.373 of 1995, decided on 25th January, 2002.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑‑‑‑‑S. 22‑‑‑Civil Procedure Code (V of 1908), O. XX, R. 14 & O.XLI, R.33‑‑‑Deposit of pre‑emption money‑‑‑Time g‑ranted by Trial Court‑‑Scope‑‑‑Pre‑emptor is bound to deposit pre‑emption money within the stipulated. time granted by Trial Court in compliance with the provisions of O.XX, R.14, C.P.C.‑‑‑Failure to make the payment within such time makes the suit liable to be dismissed.

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

‑‑‑‑S. 22‑‑‑Civil Procedure Code (V of 1908), OALI, R.33‑‑‑Deposit of preemption money‑‑‑Extension of time‑‑‑Jurisdiction of Appellate Court‑‑‑While dismissing appeal, the Appellate Court, under O.XLI, R.33, C.P.C. has discretion to grant reasonable time to pre‑emptor for deposit of pre‑emption money‑‑‑Court; in exceptional case can refuse to exercise its discretion in favour of the pre‑emptor ‑‑‑Appellate Court can extend time for depositing of such money both during the pendency of appeal before it, as well as when appeal is dismissed‑‑=Such power is subject to certain restrictions and discretion of the Appellate Court the same has to be exercised in each case according to its facts.

Bhai Khan v. Allah Bakhsh 1986 SCMR 489; PLD 19$2 SC (AJ&K) 49; Manzoor Ahmad v. Rehmat Ali and 4 others 1999 MLD 135; Muhammad Arshad‑ v. Ch. Fazal Haq and 5 others 1991 SCMR 2149 and Muhammad Iqbal v. Anwaar and another 1997 MLD 631 ref.

(c) Punjab Pre‑emption Act (I of 1913)‑‑‑‑‑‑‑Ss. 21 & 22‑‑‑Pre‑emption suit‑‑‑Disputed consideration‑‑‑Trial Court decreed the suit and directed the pre‑emptor' to deposit the pre‑emption money as stated by the vendee ‑‑‑Vendee did not file appeal against the judgment and decree passed by the Trial Court whereas it was the pre‑emptor who assailed the judgment and decree before Appellate Court ‑‑‑Pre‑emptor deposited the pre‑emption money which was admitted by him‑‑‑Appellate Court dismissed the appeal for non‑deposit of pre‑emption money in stipulated time granted by the ‑ Trial Court‑‑‑Contention of the pre‑emptor was that the Appellate Court could have extended the time for, deposit of the money‑‑‑Validity‑‑‑Where‑ there was a dispute about the actual price of the suit land and the same was contested, the Appellate Court was not legally correct in refusing to exercise its discretion in favour of the pre‑emptor to give reasonable time to the pre‑emptor for deposit of the pre‑emption money ‑‑‑Pre‑emptor, in the present case, was minor and the case was pursued by his mother‑‑‑Appellate Court was bound to give reasonable time because there were no exceptional circumstances to exercise discretion otherwise‑‑‑Material irregularity had been committed by the Appellate Court which had not exercised its jurisdiction vesting in it by not allowing time to . the pre‑emptor for deposit ‑of the amount‑‑‑Judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored and the pre‑emptor was given 10 days' time for making necessary deposit.

Haji Nawaz's case 1976 SCMR 502; 1988 CLC 551; Muhammad Arshad v. Ch. Fazal Haq and 5 others 1991 SCMR 2149 and Muhammad Iqbal v. Anwaar and another 1997 MLD 63 f ref.

Malik Amjad Parvaiz for Petitioner.

Ch.Muhammad Nawaz Sulehra for Respondent.

Date of hearing: 15th January, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 369 #

P L D 2002 Lahore 369

Before Tassaduq Hussain Jalani and Mian Saqib Nisar, JJ

HAKIM ALI ZARDARI --- Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.468 of 2001, decided on 14th May, 2002.

(a) National Accountability Bureau Ordinance (XVIII of 1999)-------S. 14---Ehtesab Ordinance (XX of 1997). Ss. 3(1)(d) & 8---Qanun-e-Shahadat (10 of 1984), Arts. 129 & 121---Corruption and corrupt practices---Allegation of accepting illegal .gratification---Presumption about existence of certain facts---Principles---Classes of presumptions--Presumption against the accused in a criminal trial---Onus to prove--Doctrine of res ipsa loquitur being a principle of tort and of civil law is not applicable to criminal law---Prosecution has to first make out a reasonable case through evidence which satisfies a prudent, reasonable and just man about the guilt of the accused and it is only then that a presumption shall be raised against the accused and onus would shift on him.

Article 129 of the Qanun-e-Shahadat stipulates that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The said section lists nine various situations in which the Court may presume any fact in ielation thereto. In all the nine illustrations the presumption is raised on the existence of a certain fact and not otherwise.

Under Article 129 of the Qanun-e-Shahadat Order, it is open to the Court to draw or not to draw a presumption as to the existence of .one fact from the proof of another fact. However, in offences of strict liability the Legislature may create statutory presumptions. Some of the examples are section ' --` 'he Prevention of Corruption Act, section 178-A of the Sea Customs Act,, section 24 of the Foreign Exchange Regulation Act and section 5 of the Hoarding and Black Marketing Act etc. In such offences, the Court presumption is mandatory. But this statutory presumption arises on when statutory facts have first been reasonably proved. It is only then that the burden of proof shifts to the accused. The burden may be discharged by the accused by bringing the case within the exceptions as laid down in Article 121 of the Qanun-e-Shaliadat Order. The accused may satisfy the burden by merely giving proof of circumstances which raise a doubt. Raising of such a doubt is enough to dispel the statutory presumptions.

Presumptions constitute an important part of the law of evidence. A presumption is an inference of the existence or non-existence of some fact which Courts or Juries are required or permitted to draw from the proof of other facts. It is in the nature of evidence but has also been considered as a rule of law as to which party shall first proceed and go forward with the evidence.

There are three classes of presumptions i.e. (i) presumption of law, (ii) presumption of facts and (iii) presumption of law and facts.

Perhaps the most important rule as to presumptions is that they must be based upon facts and not upon inferences or upon other presumptions. No presumption can safely be drawn from a presumption. The fact presumed should have direct relation with the fact from which the presumption is drawn; but when the facts are established from which presumptions may be legitimately drawn, it is the province of the jury to deduce the presumption or inference of fact. If the connection is too remote or uncertain, it is the duty of the Court to exclude either the testimony from which the presumption is sought to be deduced or to instruct the jury that the evidencc affords no proper foundation for any presumption. If, however, the facts are clearly established, forming a proper basis for a presumption of law, the jury has no right to disregard the presumption which the law raises. The presumption in such case is one deriving its force from the law and not merely from processes of reasoning.

To raise presumption against the accused in a criminal trial, the initial onus to prove a fact would be on the prosecution an "not vice versa. The principle of "res ipsa loquitur" is a principle of tort and of civil law It has mostly been invoked in civil claim of damages arising out of negligence. It literally means, "the thing speaks for itself" This doctrine is explained as under:--

The onus of proving negligence lies upon the party who alleges it, for ei qui affimat, non ei qui negat, incumbit probatio; and, to establish a case to be left to the jury, he must prcve the negligence charged affirmatively, by adducing reasonable evidence of it. -As a rule. the mere proof that an accident has happened, the cause of which is unknown, is not evidence of negligence.

In all cases where an action is based on negligence a plaintiff has to prove that there was negligence on the part of the defendant, and that by reason of that negligence he has suffered damage. When the doctrine of res ipsa loquitur is invoked it is necessary to be sure what precisely the doctrine is. The words 'res ipsa loquitur' are hardly themselves a proposition of law though they allude to one. They are a figure of speech. What this figure of speech sometimes means is that certain facts are so inconsistent with any view except that the defendant has been negligent, that any jury which, on proof of those facts, found that negligence was not proved would be giving a perverse verdict. Sometimes the proposition does not go so far 'as that but may be stated thus: that on proof of certain facts an inference of negligence may be drawn by a reasonable jury although the precise.circumstances are not fully known.

The civil doctrine of res ipsa loquitur has no application in criminal law and the mere happening of an accident does not give rise to a presumption of driving without due care.

The burden of proof was initially on the prosecution to prove that the accused, in terms of section 3(1)(d) of the Ehtesab Ordinance, 1997 had sought or had acquired any property, valuable thing, pecuniary advantage or undue favour by "corrupt, dishonest, improper or illegal, means". The Explanation to section 3(1)(d) amplifies that reference to "property acquired by improper means" shall be construed as referred to property acquired by accused through means which are contrary to law, .usage or instructions having the force of law or by abuse of official position or by coercion, undue influence, fraud or misrepresentation within the meaning of Contract Act, 1872.

The standard of proof required to discharge the initial burden of proof under section 14 of the National Accountability Bureau Ordinance, 1999 is a "reasonable case". The word "reasonable" means "Fair, proper, just, moderate, suitable under the circumstances ... .... Not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable".

Thus the prosecution shall have to first make out a reasonable case through evidence which satisfies a prudent, reasonable and just man about the guilt of the accused. It is only then that a presumption shall be raised against the accused and onus would shift on him.

Government of Pakistan v. Ishrat Begum 1999 MLD 768; Pakistan Steel Mills v. Malik Abdul Habib 1993 SCMR 848; Messrs Jehangir Services (Pvt.) Limited v. Mst. Bibi Rukhsana Begum PLD 1995 Kar. 329----Presumption about existence of certain facts ---Principles.

(d) National Accountability Bureau Ordinance (XVIII of 1999)-------S. 14---Estesab Ordinance (XX of 1997), Ss.3(1)(d) & 8---Mens rea--Corruption and corrupt practices---Allegation of accepting illegal gratification---Existence of mens rea is a sine qua non in criminal law--Exceptions---Element of mens rea has not been dispensed with under S.3(1)(d) of the Ehtesab Ordinance, 1997.

In criminal law the existence of mens rea is a sine qua non. However, there could be statutory exceptions. For instance in offences where certain acts are forbidden by law and entail a penalty, imprisonment or fine and if such acts are committed then the offender would be punished irrespective of the fact whether there was any mens rea or not. These kinds of offences can be classified as offences of strict liability.

A bare reading of section 3(1)(d) of the Ehtesab Ordinance, 1997 would show even that the law maker did not want to dispense with the element of mens rea. The expressions "seeks for himself or for any other person, property, valuable thing, a pecuniary advantage or undue favour are qualified" and preceded by the expressions "by corrupt, dishonest, improper or illegal means". All these acts and modes of behaviour would require an effort, or in jurisprudential terminology mens rea and actus reus on the part of a person to constitute an offence unless it is an offence of strict liability.

United States v. United States Gypsum Company 438 US 422 57 Ed. 2nd 854, 98 SCt 2864 ref.

Sheikh Mujibur Rehman v. The State PLD 1964 Dacca 330 distinguished.

(e) Words and phrases-------"Reasonable"---Meanings. Black's Law Dictionary ref.

(f) National Accountability Bureau Ordinance (XVIII of 1999)-------S. 14---Expression "illegal" in S.14, National Accountability Bureau Ordinance, 1999---Connotation---Terms "corrupt, dishonest and improper" ---Meanings.

The expression illegal would of course connote anything done against the express provision of law. The terms corrupt dishonest and improper are overlapping and have not been defined in the Ordinance under which the appellant was tried. These arte terms of a Penal Statues and have to be construed, in the light of the Explanation contained in the section itself and in the manner in which they are used in the ordinary parlance.

Criminal and penal statues must be strictly construed, that is. They cannot be enlarged or extended by intendment, implication, or by any equitable consideration. In other words, the language cannot be enlarged beyond the ordinary meaning of its terms in order to carry in to effect the general purpose for which the statute was enacted.

It would, therefore, be in accord with this doctrine of interpretation of Penal Statues if dictionary meanings of the terms in questions are adhered to. The above expressing are defined as under:---

Corrupt; Spoiled; tainted; vitiated; depraved, debased; morally degenerate. As used as a verb, to change ones morals and principles from good to bed.

Dishonesty:Dishonesty: Disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity, lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray.

Improper: Not suitable; unfit, not suited to the character, time and place.

The basic elements of dishonesty are as under:--

It is commonly and conveniently referred to as 'dishonesty', and in the case of many offences is expressly so described. However, the use of this un-technical term should not be allowed to obscure the fact that the concept it represents is a highly complex one. It embraces at least three, and arguably four, distinct requirements: viz. that the defendant's conduct should fail to conform to:--

(1) generally accepted standards of honest conduct, both

(a) as they actually are, and

(b) as he believes them to be; and

(2) the limits of what he is legally entitled to do---at any rate

(a) as he believes them to be, and arguably also

(b) as they actually are.

In determining whether the prosecution has proved that the accused was acting dishonestly, a Court must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the Court must consider whether the accused himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary stands, there will be no doubt about it. It will be obvious that the accused himself knew that he was acting dishonestly. It is dishonest for an accused to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.

Crawford's, Interpretation of Laws by Earlt T. Crawford, Saint Louis Thomas Law Book Company, 1940, p.460; Black's Law Dictionary 6th Edn.; Alridge & Parry on Fraud, Second Edn., p.1002 and Regina v. Ghosh 1982 QB 1053 ref.

(g) Words and phrases-------"Illegal"---Meanings.

Crawford's Interpretation of Laws by Earlt T. Crawford, Saint Louis Thomas Law Book Company, 1940, p.460; Black's Law Dictionary 6th Edn. ; Alridge & Parry on Fraud, Second Edn., p.1002 and Regina v. Ghosh 1982 QB 1053 ref.

(h) Words and phrases-------"Dishonestly"---Meanings.

Crawford's Interpretation of Laws by Earlt T. Crawford, Saint Louis Thomas Law Book Company, 1940, p.460; Black's Law Dictionary 6th Edn.; Alridge & Parry on Fraud, Second Edn., p.1002 and Regina v. Ghosh 1982 QB 1053 ref.

(i) Words and phrases---------"Improper"---Meanings.

Crawford's Interpretation of Laws by Earlt T. Crawford, Saint Louis Thomas Law Book Company, 1940, p.460; Black's Law Dictionary 6th Edn.; Alridge & Parry on Fraud, Second Edn., p.1002 and Regina v. Ghosh 1982 QB 1053 ref.

(j) Words and phrases-------"Corrupt"---Meanings.

Crawford's Interpretation of Laws by Earlt T. Crawford, Saint Louis Thomas Law Book Company, 1940, p.460; Black's Law Dictionary 6th Edn.; Alridge & Parry on Fraud, Second Edn., p.1002 and Regina v. Ghosh 1982 QB 1053 ref.

(k) National Accountability Bureau Ordinance (XVIII of 1999)-------S. 14---Estesab Ordinance (XX of 1997), Ss.3(1)(d) & 8---Qanun-eShahadat (10 of 1984), Art.129---Corruption and corrupt practices--Allegation of accepting illegal gratification---Presumption about existence of certain facts---Agreements and letters placed on record by the prosecution prime facie reflected business transactions between two juristic entities viz. the Company of which the accused was the Chairman and the financial institution---Presumption of regularity, held, was attached to the said agreements and documents in terms of Art. 129, Qanun-e-Shahadat, 1984 and onus was on the prosecution to prove that the sanction of loan by the financial institution and its disbursement reflected conduct falling within the penal provisions.

(l) National Accountability Bureau Ordinance (XVIII of 1999)------S. 14---Ehtesab Ordinance (XX of 1997), Ss. 3(l)(d) & 8---Corruption and corrupt practices---Allegations of accepting illegal gratification--- "Bribe" and "corruption"---Distinction---Direct evidence on "corruption" being not always available, presumptions in law is raised and cases are built on circumstantial evidence.

"Bribe" and "corruption" are generally consensual transactions. In a sense the difference between "bribe" and "extortion" is the same which is between "adultery" arid "rape". Direct evidence on "corruption" may not be always available. That is why Legislatures from diverse jurisdictions have raised presumptions in law and cases are built on circumstantial evidence.

(m) National Accountability Bureau Ordinance (XVIH of 1999)-------S. 14---Ehtesab Ordinance. (XX of 1997), Ss. 3(1)(d) & 8---Criminal Procedure Code (V of 1898), Ss. 342 & 537---Corruption and corrupt practices---Allegation of accepting illegal gratification---Non-Compliance of provisions of S.342, Cr.P.C,---When not curable and would vitiate trial--Principles.

Non-compliance to the provision of section 342, Cr.P.C. would not per se vitiate the trial and is curable under section 537, Cr.P.C. However, if this omission pertain to a material point in issue and if any piece of evidence tias been used to condemn a person and the same was not put to him during trial, this omission would not be a curable defect and would vitiate the trial.

Jafar Alam Choudhary v. The State 1969 PCr.LJ 259 and The State v. Abdul Samad and another PLD 1984 Quetta 72 fol.

AIR 1934 Pat. 132 ref

The President v. Mr. Justice Shaukat Ali PLD 1971 SC 585; The Registrar of Companies, Pakistan through Joint Registrar of Companies v: Taj Company Limited and 8 others ~ 1993 CLC 1413 and AIR 1934 Pat. 132 distinguished.

(n) Criminal trial-------Evidence---Circumstantial. evidence---If circumstantial evidence led is capable of a reasonable alternative theory, the Court shall lean in favour of the said alternative theory and grant benefit, of doubt to the accused.

Siraj v. The Crown PLD 1956 FC 123; Hurjee Mull v. Imam Ali Sircar 8 CWN 278 and Mujibur Rehman v. The State PLD 1964 Dacca 330

Muhammad Ghani, Special Prosecutor on behalf of NAB arid Ahmer Bilal Soofi, Deputy Prosecutor-General for NAB.

Dates of hearing; 9th, 10th. 11 , 16 , 17th and 23rd April, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 406 #

P L D 2002 Lahore 406

Before Tassaduq flussain Jdani, J

ALLAH DITTA‑‑‑Appellant

Versus

THE STATE‑Respondent

Criminal Appeal No‑340 of 1999 and Criminal Miscellaneous Application No. l of 2002, heard on 7th March, 2002.,, Penal Code (XLV of 1860)‑‑‑‑‑‑‑Ss. 302/306 & 331‑‑‑Juvenile Justice System Ordinance (XXII of 20001. S.11‑‑‑Payment of Diyat amount by the State on behalf of destitute minor accused‑‑‑Accused was a minor at the time of occurrence who had undergone the entire sentence of his imprisotunent, but he was confined in Borstal Jail for the last eight months as he was unable to pay the Diyat amount of MRs.2,52,000 to the legal heirs of the deceased‑‑‑Father of accused was a poor old man and as per report of the Sessions Judge they were not in a position to pay the 1)iyat amount‑‑‑Accused under the current state of unemployment even if would get a menial job, would not be able to save the Diyat amount for the years to come‑‑‑Provision for payment of Diyat, in the circumstances, entailed uncertainty both for the intended, beneficiary and for the accused particularly when he was a minor‑‑‑Law under the new dispensation had provided for a different mode of trial, sentencing and releasing the minors on probation‑‑‑Juvenile Justice System Ordinance, 2000, was benign and favourable to the accused‑‑‑Appeal being a continuation of the trial, the said law lad to be given retrospective effect‑‑‑Accused was, consequently, directed to be released on probation subject to his furnishing bond of good behaviour before the District and Sessions Judge concerned‑‑‑Home Secretary, Government of Punjab, was also directed to ensure that the Diyat amount was deposited in the Trial Court by the State for payment to the legal heirs of the deceased from "Baitul Maal" or from any other fund within three months of the receipt of the order, failing which Trial Court was directed to take necessary steps for the recovery of the amount of Diyat by attachinent/sale of movable or immovable property of the State in accordance with law.

Muhammad Zafar v. The State 2001 YLR 533 eel.

Sardar Muhammad Latif Khan Khosa for Appellant.

Malik Muhaumnad Qasim, A.A.‑G.

Date of hearing: 7th March, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 410 #

P L D 2002 Lahore 410

Before Mrs. Fakhar‑un‑Nisa Khokhar, J.

ASGHAR MEHMOOD‑‑‑Petitioner

Versus

JUDGE, FAMILY COURT and another‑‑‑Respondents

Writ Petition No .967 of 2002. decided on 13th February, 2002.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑‑‑‑Ss.' 7, proviso, 10(4) & 11(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Framing of additional issue‑‑‑Powers of Family Court‑‑‑Grievance of the petitioner was that the Family court declined to frame additional issue as desired by him‑‑‑Validity‑‑‑Unlike Civil Procedure Code, 1908, the Family Court was restrained to formulate issues at later stage as the same was violative of S.11(2) of the West Pakistan Family Courts Act, 1964, which was a mandatory provision of law to summon evidence within three days of framing of issues‑‑‑Family Court might allow any evidence at later stage under proviso to S.7 of the West Pakistan Family Courts Act, 1964, if the same was expedient for justice‑‑‑High Court declined to interfere with the order passed by the Family Court‑‑‑Constitutional petition was dismissed in limine.

Javed Ahmad Khan, Advocate

PLD 2002 LAHORE HIGH COURT LAHORE 412 #

P L D 2002 Lahore 412

Before Mrs. Fakhar-un-Nisa Khokhar, J

MANZOOR BHATTI---Petitioner

Versus

EXECUTIVE OFFICER, CANTONMENT BOARD, MULTAN and another---Respondents

Writ Petition No.723 of 2002, heard on 31st January, 2002.

(a) Cantonments Act (1111 of 1924)-------S. 116---Constitution of Pakistan (1973), Part II [Arts.7 to 40] & Art. 199---Constitutional petition---Public interest litigation---Fundamental rights---Maintenance of park in Cantonment area---Dispute between the parties was that the Cantonment Authorities intended to convert existing public park into a shopping centre and the petitioner being a citizen resisted the act of the Authorities---Plea raised by the Cantonment Executive Officer was that the children park was in dilapidated condition, therefore, the Authorities had decided to convert the same into shopping centre--Validity---Executive Officer or any elected representative was not empowered by law to convert any place which was meant for public purpose and was used as such---Inhabitants/citizens of the locality, where public park existed in the documents for public purpose, could not be deprived from their fundamental rights ensured by the Constitution for enjoying recreation from children park, gardens and green belts meant for public purpose and established for the interest of public at large---Plea raised by the Executive Officer proved his misconduct in discharge of his duties and obligations to keep the park green, flourishing with flowers and installations of play things for children---If the Executive Officer did not part with his duties, safeguarding the existence of the park, the green belts and gardens made for public purposes, then the officer was negligent aid could be proceeded against for misconduct---Executive Officer, in the present case, was under the duty to restore the park to its original form, beautify the same providing paths flower and grass in the park--Act of the Authorities using place of the park for the purpose other than that of the park was without lawful authority, result of highhandedness and the same was set aside---High Court directed the Authorities to remove all sorts of material on the children park, fill up the dug ground, beautify the children park by growing green belts, flowers and affixation of pathing for children---Petition wds allowed in circumstances.

(b) Words and phrases-------"Misconduct"---Meaning---Any authorised person who neglects his duties towards public purpose is guilty of misconduct.

Sikandar Javed for Petitioner. Muhammad Ali Gillani with Respondent No A. Muhamamd Sarwar Bhatti, A.A. -G. (on Court's Call).

Date of hearing: 31st January, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 416 #

P L D 2002 Lahore 416

Before Karanaat Nazir Bhandari, Ch. Ijaz Ahmad and Ijaz Ahmad Chaudhary, JJ , ASIF SAIGOL and 2 others‑‑‑Appellants, Versus

FEDERATION OF PAKISTAN through Interior Secretary, Pakistan Secretariat, Islamabad and 2 others‑‑‑Respondents

Intra‑Court Appeal I'M of 1997, decided on 8th May, 2002.

(a) Interpretation of statutes‑‑‑‑‑ Preamble of a statute ‑‑‑Scope‑‑‑Preamble is not a part of statute as such and its scope is only to indicate legislative intention‑‑‑If the enacting provision is clear the same has to be given effect, by giving plain and literal meaning to the words and in such a situation reference to preamble may not be made.

The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan and others PLD 1972 SC 279; Hassan and others v. Fancy Foundation PLD 1975 SC 1; Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others PLD 1981 SC 56 and Pakistan Railway v. Abdul Haqique and others 1991 SCMR 657 ref.

(b) Federal Investigation Agency Act, 1974 (VIII of 1975)‑‑‑‑‑‑S.3‑‑‑Constitution of Pakistan (1973), Arts. 199 & 87, Fourth Sched. Federal Legislative Lists Part I, Item 28‑‑‑Constitutional petition‑‑‑Quashing of F. I. R.‑‑Registration of F.I.R. by Federal Investigation Agency‑ in relation ‑to offences committed in private/scheduled Banks ‑‑‑Validity‑‑Banking being a matter concerning the Federal Government, Federal Investigation Agency has the jurisdiction to inquire into and investigate the offences taking place in or in relation to private Banks (not owned or managed by Federal Government), which are Scheduled Banks within the meaning of State Bank of Pakistan Act, 1956‑‑‑Federal Investigation Agency had competently registered and investigated the cases and F.I.Rs. could not be quashed on the ground that the Agency lacked powers to register the cases‑‑‑Principles.

Plain reading of subsection (1) of section 3 of Federal Investigation Agency Act, 1974 hardly admits of any doubt as to the command contained in this section. It authorizes the Federal Government to constitute the Agency "for inquiry into and investigation of, the offences specified in the schedule, including an attempt............The meaning is very clear that the Agency can inquire into and investigate the offences mentioned in Item No.l of the Schedule. There is no ambiguity in the words used in section 3 of the Act. There is no word limiting or restricting the power of the Agency to inquire into and investigate offences specified in the Schedule, but committed in respect of the Banks owned and managed by Federal Government. There is no reason to read into subsection (1) of section 3 of the Act, the words "Committed in respect of or in relation to Government owned/managed Bank". If the language of the enacting part is clear and unambiguous, there is need to . refer to the preamble. Federal Investigation Agency had competently registered and investigated the cases and that F.I.Rs. could not be quashed on the ground that the Agency lacked power to register the cases.

For the sake of arguments if it is assumed that there is some doubt and ambiguity in section 3(1) of the Act and in order to remove the same, let us revert to the preamble. In all the present cases F.I.Rs. have been registered for offences in banks which are private but are Scheduled Banks within the meaning of Banking Companies Ordinance, 1962/State Bank of Pakistan Act, 1956. Now does an offence committed in such banks be said to be an offence committed "in connection with matters concerning the Federal Government, and for matters connected therewith". It will be seen that the words used in the preamble are of wide import. It is not disputed that banking is a subject allocated by the Constitution, to the Federation. It is borne in the Legislative List of the Federation, (Article 87 read with Federal Legislative List, Fourth Schedule Part I, Item No.28 to the Constitution). Currency, whether local or foreign, is also a Federal subject. The Banks deal in money/currency. Nobody can, transact banking business. in Pakistan without being registered as a Banking Company. The State Bank of Pakistan grants registration to Banks as also confers the status of Scheduled Bank. The State Bank is required to supervise the banking business in Pakistan and under the statute (State Bank Act, 1956) any direction issued by the State Bank is binding on the Banks and has to be complied with. State Bank fixes the bank rate and also determines and controls the credit policies of the Banks. The banking, therefore, is a matter concerning the, Federal Government. Just to emphasize, if bank fails in or for lack of confidence. there is a rush for money on banks, the whole economy may crumble and suffer colossal losses. Can it be said therefore, that if criminal offences are committed iii private banks, it does not concern the Federal Government or this is not connected with a matter concerning the Federal Government? The answer is clear and it is YES. Therefore, from this point of view as well the Agency is competent to inquire into and investigate offences taking place in private but Scheduled Banks, provided such offences are mentioned in the Schedule.

The Federal Investigation Agency has the jurisdiction to inquire into and investigate the offences taking place in or in relation to private banks (not owned or managed by Federal Government), which are Scheduled Banks within the meaning of Banking Companies Ordinance, 1962 read with State Bank of Pakistan Act. 1956.

Javed Iqbal and others v. Federal Investigation Agency and others PLD 1986 Lah. 424; Akbar Ali and others v. The Assistant Director FIA and others 1990 ALD 28(1); Abdul Razzaq and others v. Pakistan Agricultural Storage and Services Corporation Ltd., Lahore and others 1992 PCr.LJ 1884; Mian Hamza Shahbaz Sharif v. Federation of Pakistan and others 1999 PCr.LJ 1584; Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101;. Iftikhar Hussain and others v. Government of Pakistan and others 2001 PCr.LJ 146; Asif Saigol and others v. Federation of Pakistan and others PLD 1998 Lah. 287; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan and others PLD 1972 SC 279; Hassan and others v. Fancy Foundation PLD 1975 SC 1; Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and'others PLD 1981 SC 56; Pakistan Railway v. Abdul Haqique and others 1991 SCMR 657 and Shah Muhammad Khan v. The Federation of Pakistan and 2 others PLD 1958 (W.P.) Lah. 137 ref.

Ashtar Ausaf Ali for Appellants.

Khawaja Saeed‑uz‑Zafar, Dy. A.‑G. for Pakistan for Respondents Nos. 1 adn 2.

Zahid Hamid for Respondent No.3.

Dates of hearing: 5th, 12th, 22nd, 24th and 25th April, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 425 #

P L D 2002 Lahore 425

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MUHAMMAD SHAHBAZ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.571 and Murder Reference No. 207‑T of 1997, heard on 15th May, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 377‑‑‑Appreciation of evidence‑‑‑Substitution is a rare phenomenon in cases involving a single accused and particularly so in a case where the accused and the eye‑witnesses belonged to the same area or locality and are known to each other‑‑‑Father of deceased would be the last man to substitute an innocent person for an assassin and a real culprit.

Muhammad Ayyub alias Nikka v. The State PLD 1983 SC 27 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b).& 377‑‑‑Murder of a young boy after abduction with tile intention of causing sodomy with him ‑‑‑Unwitnessed incident‑‑‑Punishment of Qisas, grant of‑‑‑Validity‑‑‑Appreciation of evidence‑‑‑Document pertaining to the pointation of the place where the dead body was buried reflected square number and the Killa number and exactly the place which was pointed out by the accused‑‑‑Square number and the Killa number were known to the villagers whose main business was agriculture and the mention about which in the document did not make the document doubtful on the ground that the accused was not expected to know the square number and killa number etc.‑‑‑Statement of the complainant who was father of tile deceased. remained unshaken‑‑‑Complainant had no enmity with the accused side‑‑‑Story of accused unsupported by any defence evidence was hardly a pursuasive defence plea‑‑‑Circumstance that the complainant after his son was found missing straightaway went to the house of the accused and stayed there while the father of the accused deputed his other son to locate tile accused who had not returned home by then and also the complainant's visit there the next day in the same connection, built a natural story about the events preceding the discovery of the dead body‑‑‑Accused after he was apprehended pointed towards the place where he had buried the dead body and there was hardly much lapse of time between his arrest and the discover of the place of burial, leaving a very little room for the police toy manoeuvre‑‑‑Time which was recorded by the Doctor while performing the post‑mortem examination or preparing a medico‑legal report was not a definite time and doctor's opinion in this connection was often based on approximate rather than scientific exactitude‑‑‑Not much reliance could be placed on circumstance of the last seen‑‑‑Court was required to see the case on the basis of the entire scenario which developed in the shape of a story or a version and if there was an overall coherence between the factums forming the basis of a case, then the minor discrepancies could be overlooked as they were then felt of no consequence ‑‑‑Prosecution side could not be allowed to suffer for just minor discrepancies for there was a recession in die police Investigation and the skills which were available in the past with the investigating Officers were not being acquired by most of the present officials‑‑‑Recovery of dead body on the pointation of die accused and the recovery of Kassi and a string which were used to cause death of the deceased through strangulation and burial of the dead body later were circumstances which connected the accused with the death of the deceased‑‑Prosecution, in circumstances, had been able to establish its case against the accused for the murder of a young boy after having abducted him with intention of causing sodomy with him‑‑‑Incident being unwitnessed, in the absence of any ocular evidence, punishment of Qisas could not be granted‑‑Conviction and sentence under S.302(b) read with S.377, P.P.C. was upheld in circumstances.

Aziz ur Rehman v. The State 1983 PCr.LJ 2462 and Ghulam Mustafa v. State PLD 1991 SC 718 ref.

‑‑‑‑Administration of justice‑‑‑Courts are required to see the cases on the basis of the entire scenario which develops in the shape of a story or a version and if there is an overall coherence between the factums of forming the basis of a case, then the minor discrepancies can be overlooked as they are then felt of no consequence.

(d) Criminal trial‑‑‑

‑‑‑‑ Police investigation‑‑‑Prosecution side cannot be allowed to suffer for just minor discrepancies for there is a recession in the police investigation and the skills which were available in the past with the Investigating Officer, are not being acquired by most of the present officials.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 377‑‑Medical jurisprudence‑‑‑Time between the death and post‑mortem examination‑‑‑Determination‑‑‑Time which is recorded by a doctor while performing the post‑mortem examination or preparing a medico‑legal report is not a definite time and doctor's opinion in this connection is often based on approximation rather than scientific exactitude.

Aziz ur Rehman v. The State 1983 PCr.LJ 2462 ref.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 364‑A‑‑‑Kidnapping or abducting a person‑‑‑Deceased boy was taken by the accused from his house and he was also seen by a prosecution witness with the accused riding on a bicycle and no one objected to this as even in the past he used to go with the accused‑‑‑Held, this was not a case of kidnapping and no offence under S. 364‑A, Cr.P.C. was made out.

Phalla Masih v. The State PLD 1989 FSC 72 ref.

(g) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 377‑‑‑Unwitnessed murder of a young boy with the intention of causing sodomy with him in the rustic surrounding‑‑‑Sentence, reduction in‑‑‑Young boy had accompanied the accused because he knew him or perhaps for taking a ride on his bicycle‑‑‑Accused, a youngster of about 20/21 at the time of occurrence who had just entered in a youthful age unpolished by education and was living in the rustic surroundings selling milk to the people of the village, who might have been overpowered by his lust at the relevant time without being actuated with any wickedness or animus to murder while being oblivious of qualms of conscience‑‑‑Held, in the absence of any ocular evidence and while keeping in view the circumstances borne on record and all other factors, conviction and sentence of accused under Ss.302(b) & 377, P.P.C. was upheld by High Court while reducing his death sentence under S.302(b), P.P.C. to the life imprisonment directing him to pay Rs.1,00,000 to the legal heirs of the deceased as compensation under S.544‑A, Cr.P.C. or in lieu thereof to suffer simple imprisonment for six months.

Muhammad Ikram alias Billa v. The State 1999 SCMR 406; Machhi Singh and others v. State of Punjab AIR 1983 SC 957 and Sentencing Alternatives and Procedures, Standards for Criminal Justice by American Bar Association ref.

(h) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Indeterminate sentence‑‑‑Judge to decide as to what may be appropriate between sentencing to life imprisonment or to death‑‑‑Mitigating factors‑‑‑Courts cannot blindfold and without taking note of the theories of punishment and the background of the offender resolve the issue of sentencing‑‑‑Such a duty falls on the superior Courts to fill in the vacuum and to do justice keeping in view all circumstances and background of the offender‑‑‑Poor performance of the investigators is also a circumstance which has to be kept in view while the superior Courts are balancing crime and punishment and should not hesitate in following a safe course while administering justice.

Section 302, P.P.C. prescribes indeterminate sentence leaving it for a Judge to decide what may be appropriate between sentencing to life imprisonment or to death. The reason is that no legislative definition or classification can take account of all contingencies. However right it may be to take the gravest view of an offence in general, there will still be cases where the circumstances will be found to be unusual or the aspect of mitigation possible.

In the civilized world, the draconian notions and passion for retribution have been yielding to mankind's concern for charity. There penology is moving away from punitive practices and progressing towards humanitarian theory of resocialization. This is with the belief that a sentence must be in accordance with the offender, rather than the offence and that the sentencing requires consideration beyond nature of the crime and the circumstances surrounding it.

Jurisprudence because of our turbulent society in Pakistan and the acts of terrorism being on the rampant is developing towards a more determinate view for death sentences in murder cases.

Punishing the offenders anyhow is a primary function of all civil States. The crucial problem, however, is whether a criminal is to be regarded by society as a nuisance to be abated or an enemy to be crushed or a patient to be treated or a refactory child to be disciplined? Or should he be regarded as none of these things but simply be punished to show to others that antisocial conduct involves heavy punishment. It is in this perspective that the problem of crime, criminal and punishment is engaging the attention of criminologist and penologists all around the civilized world. Unfortunately, in our midsts, there is dearth of such individuals and such institutions who may give views in criminology and penology based on our social conditions and provide guidance in respect of punishment. The Courts, therefore, cannot blindfolded and without taking note of the theories of punishment and the background of the offender resolve the issue of sentencing. Needless to say that this duty falls on the superior Courts to fill in the vacuum and to do justice keeping in view all circumstances and background of the offender.

The punishment imposed should neither exceed a ceiling equal to that level justly deserved by the offender for the instant offence nor fall below a floor level necessary either to protect the public from further serious criminal acts by the defendant or to assure that the gravity of the offence is not deprecated.

Wazir Gul v. The State PLD 1995 Kar. 112; Muhammad Ikram alias Billa v. The State 1999 SCMR 406; Machhi Singh and others v. State of Punjab AIR 1983 SC 957 and Sentencing Alternatives and Procedures, Standards for Criminal Justice by American Bar Association ref.

Sardar Muhammad Latif Khan for Appellant.

Asif Ranjha for the Complainant.

A.H. Masood for the State.

Date of hearing: 15th May, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 438 #

P L D 2002 Lahore 438

Before. Tassaduq Hussain Jilani, J

MUHAMMAD ASHRAF KHAN---Petitioner

versus

MUHAMMAD AKHTAR KHAN and others---Respondents

Civil Revision No. 1342 of 1996, heard on 15th April, 1002.

Islamic Law---

----Inheritance---Plaintiffs had claimed that mother of defendants was not wife of the deceased and defendants who were sons and daughters, were not legal heirs of deceased---Plaintiffs had claimed that they being the only sons, daughters and wife of the deceased, were exclusively entitled to right of inheritance---Trial Court on basis of evidence adduced by three real sisters of deceased and one real cousin of parties to the effect that mother of defendants was second wife of deceased and that defendants were offspring from said Nikah, decreed the suit and finding of Trial Court was affirmed by Appellate Court---Onus to prove the issue that deceased had contracted second marriage with mother of defendants, was on defendants which they had successfully discharged by adducing evidence of real sisters of deceased and real cousin of parties which evidence remained unshaken in lengthy cross-examination and also was corroborated by other evidence of witness---statement made by real sisters of deceased and real cousin of parties were relevant in terms of Art.64 of Qanun-e-Shahadat, 1984 as said persons had special means to know about relationship of deceased and mother of defendants---Conduct reflected in statements of said witnesses had proved beyond doubt that mother of defendants was lawful second wife of the deceased and defendants being legal heirs of deceased were entitled to inheritance alongwith other legal heirs of deceased.

Ghulam Muhammad and others v. Allah Yar and others PLD 1965 Lah. 482 ref.

Malik Tariq Pervaiz for Petitioner.

Ghulam Hussain for Respondents.

Date of hearing: 15th April, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 444 #

P L D 2002 Lahore 444

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

MUHAMMAD SIDDIQUE‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 170 of 2000, heard on 3rd June, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Triple murder by father of the deceased girl who had married of her choice against the wishes of parents; her husband and ,[heir daughter of 6/7 months‑‑‑Daylight occurrence‑‑Accused father and the deceased daughter had strained relations on account of her said marriage of choice which constituted the motive ‑‑‑ Accused had got case registered against his daughter and her husband under Hudood law‑‑‑Deceased and her husband had been called by the accused through coaccused on the pretext that the former (accused) wanted to compromise the matter‑‑‑Invitation from an estranged father to his daughter must have been a message of forgiveness, of love and hope and for her credulous husband it must have been a moment of excitement as such a message would have ended the long chase and his reactive hide after registration of the Hudood case and above that the moment when his marriage was to be accorded recognition by his in‑laws‑‑‑Nature of gathering explained the presence of father and brother of the deceased husband at the place of occurrence who were natural witnesses and had no enmity with the accused to falsely implicate him‑‑Minor contradictions apart, said witnesses remained consistent on all material particulars i.e. the time, the manner in which the three were done to death and the locale of injuries caused‑‑‑Medical evidence was corroborated by the ocular account‑‑‑Recovery of three dead bodies from the house of the accused was by itself ‑yet another strong piece of circumstantial evidence and the accused had no tenable explanation for the same‑‑‑Accused had also led to the recovery of the licensed gun‑‑‑Crimes empty was though not recovered from the spot yet it had to be borne in mind‑that it was accused's own house where the occurrence took place, the witnesses had run away finding him in that ferocious mood and the possibility could not be ruled out that the accused must have removed the empties before arrival of the police ‑‑‑Non recovery of empties, even otherwise. would not set off the overwhelming effect of other pieces of evidence‑‑‑Prosecution, in circumstances, had proved the case beyond reasonable doubt to sustain. conviction in a capital charge.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302/34‑‑‑Appreication of evidence‑‑‑Triple murder‑‑‑Non‑recovery of empties would not set off the overwhelming effect of other pieces of evidence.

‑‑‑‑Ss. 302 & 338‑E‑‑‑Criminal Procedure Code (V of 1898), S. 345‑‑‑Preplanned triple murder in a cold‑blooded, calculated and brutal manner with no element of grave and sudden provocation by father of the daughter who had married of her choice against the wishes of parents, her husband and their daughter aged 6/7 months‑‑‑Deceased daughter and her husband had been called by the accused through co‑accused on the pretext that the father (accused) wanted to compromise the matter but killed each one of them‑‑Application for compromise‑‑‑Discretion of Court‑‑‑Parameters‑‑‑Application for compromise is an admission of guilt‑‑‑Court, even if the offence has been waived or compounded has discretion to acquit or award Tazir to the offender keeping in view "circumstances of the case" and "according to the nature of the offence"‑‑‑Principles‑‑Individual, institutional and societal stakes, as elaborately discussed by the High Court, being high in the attending circumstances of the case, accused did not deserve the indulgence of a compromise leading to acquittal‑‑‑Sentences awarded to the accused by the Trial Court, therefore, did not call for interference‑‑‑High Court confirmed the death sentence awarded to the accused in circumstances.

The application for compromise is an admission of guilt.

Most of the offences can be compounded under the penal and procedural law of the land. The offence of murder can be compounded in terms of section 338‑E of the P.P.C.

The sentence for Qatl‑e‑Amd under section 302(b), P.P.C. is either death or imprisonment for life in cases of Tazir.

In cases where Qisas is not available, the Shariah has given authority to the State and the Courts to award appropriate punishment to the offender keeping in view the circumstances of the case. Such punishment may reach up to life imprisonment or death by way of Tazir. This kind of death punishment has been termed variously by the Jurists but there is a general agreement that such a punishment is justified under the Shariah in the special circumstances.

For compounding an offence, leave of the Court is necessary both under section 338‑E, P.P.C. and section 345, Cr.P.C. The proviso contained in section 338‑E, P.P.C. carries a rider i.e. that even if the offence has been waived or compounded the Court has‑ discretion to acquit or award Tazir to, the offender keeping in view "circumstances of the case" and "according to the nature of the offence". While interpreting these provisions, some questions of far‑reaching import regarding the parameters of these discretionary powers are as under:‑‑

(i) What are those: "circumstances"" and why despite compromise an accused be convicted?

(ii) What is the concept of crime and punishment which may emanate from this provision of law?

(iii) Can law be a social catalyst for change?

The "circumstances" or the offences which may justify conviction as Tazir despite compromise could be varied. Those may include criminal acts which are. heinous on account of the number of people who are physically harmed or killed; or acts which are symbolic of a certain bias or prejudice against a section of society; or which are committed in the name of a creed or committed in reaction to the exercise of a fundamental right by the victim; or which cause general alarm and shock public conscience and acts which have the effect, of striking at the fundamentals of a civil society. The concept embodied in this provision (of section 338‑E, P.P.C.) underpins an important legislative intent. The Court has to draw a line between those offences which are more serious and have graver social ramifications and offences which are less serious or reflect some personal vendetta. In the former category of offences acquittal pursuant to compromise may encourage the social trends which led to those crimes whereas upholding a conviction would convey a social disapproval through the majesty of law. In the offences of latter kind, however, a compromise and the resultant acquittal may promote goodwill and social harmony.

Accused in the present case had pre‑planned the triple murder and carried out the plan in a cold‑blooded, calculated and brutal manner. There was no element of grave and sudden provocation. The only fault of accused's adult daughter was that she married some one of her own choice. There is no evidence that there was no marriage or that they were living a life of adultery. They had entered the sacred union of marriage and had given birth to a baby girl.

While examining the case High Court, with a ting of dismay, took judicial notice of the fact that the act of the accused was not a singular act of its kind. It is symptomatic of a culture and a certain behaviour pattern which leads to violence when a daughter or a sister marries a person of her choice. Attempts are made to sanctify this behaviour in the name of "family honour". It is this perception and psyche which had led to hundreds of murders.

According to the report of the Human Rights Commission of Pakistan which has not been controverted by any State agency, over 1000 victims were of "honour killing" in the year 1999 and 888 in the single Province of Punjab in the year 1988. Similarly in Sindh, according to the statistical record maintained by the Crimes Branch of Sindh, it was 65 in 1980, 141 in 1999 and 121 in 2000. In the year 2001 there were at least 227 "honour killings" reported in Punjab alone.

These killings are carried out with an evangelistic spirit. Little do these zealots know that there is nothing religious about it and nothing honourable either. It is male chauvinism and gender bias at their worst. These prejudices are not country specific, a region specific or a people specific. The roots are rather old and violence against women has been a recurrent phenomenon in human history. The Pre‑Islamic Arab Society was no exception. Many cruel and inhuman practices were in vogue which were sought to be curbed by the advent of Islam. It is well‑known that in those times, daughters used to be buried alive. It was strongly deprecated and a note of warning was conveyed in Holy Qur'an. In Sura No.81 (Al‑Takwir), Verse 8, the Day of Judgment is portrayed in graphic detail when inter alia those innocent girls, who were buried alive or killed, would be asked to speak out against those who wronged them and the latter would have to account for that.

Notwithstanding the Qura'nic commandments and the penal law of the land, the incidents of violence against women remain unabated.

The tragedy of the triple murder is yet another tale of an old Saga; the characters are different yet plot is the same, the victims were accused of the same "crime" and even the method in madness remained the same i.e. the prosecutor, the Judge and the executioners all in one. Perhaps if the police had fairly investigated the case and the subordinate Courts had gone by the book by extending requisite protection, deceased couple would not have run away. This is a typical example of misuse and misapplication of Hudood Laws in the country. This abdication of authority by the State institutions made the couple run for its life and provided an opportunity to the accused to call them over by way of deception. In utter disregard to the basic right of an adult woman to marry, to the institution of family, and motivated by self-conceived notion of "family honour", the accused had started a tirade against them by having a criminal case registered. Baby girl was born out of the wedlock. The daughter left her home and hearth and even the city of her birth and started living in another city in the fond dream of creating a "new home" and "new world" but the accused's venom, it seems, never subsided. To satisfy those baser calls of venom, he thought of a plan and a rather treacherous one of inviting, them to his house. When they came, he brought out his gun and killed each one of them with repeated shots.

A murder in the name of honour is not merely the physical elimination of a man or a woman. It is at a socio‑political plane a blow to the concept of a free dynamic and an egalitarian society. In great majority of cases, behind it at play, is a certain mental outlook, and a creed which seeks to deprive equal rights to women i.e., inter alia, the right to marry or the right to divorce which are recognised not only by our religion but have been protected in law and enshrined in the Constitution. Such murders, therefore, represent deviant behaviours which are violative of law, negatory of religious tenets and aft affront to society. These crimes have a chain reaction. They feed and promote the very prejudices of which they are the outcome, both at the conscious and sub‑conscious level to the detriment of our enlightened ideological moorings. But are these social aberrations immutable? Is it an inexorable element of fate that the women should continue to be the victims of rage when it comes to the exercise of those fundamental rights which are recognized both in law and religion? NAY! No tradition is sacred, no convention is indispensable and no precedent worth emulation if it does not stand the test of the fundamentals of a civil society generally expressed through law and the Constitution. If humans were merely slaves of tradition or fate, they would still be living in caves eating, mating and fighting like other animals. It is the mind and the ability to reason which distinguishes them from other, living creatures. Human progress and evolution are the product of this ability. Law is part of this human odyssey and achievement. Law is a dynamic process. It has to be in tune with the ever changing needs and values of a society failing which individuals suffer and social fabric breaks down. It is this dimension of law which makes it a catalyst of social change Law, including the judge‑made law, has to play its role in changing the inhuman social moors. The offence which stands proved against the accused has to have a judicial response which serves as a deterrent, so that such aberrations are effectively checked. any other response may amount to appeasement or endorsement. A society which fails to effectively punish such offenders becomes privy to it. The steady increase in these kinds of murders is reflective of this collective inaction, of a kind of compromise with crime and a complicity of sorts. A justice system of crime and punishment, bereft of its purposive and deterrent elements looses its worth and credibility both. The individual institutional and societal stakes, therefore, are high. In these attending circumstances the accused, therefore, does not deserve the indulgence of a compromise leading to acquittal. The sentences awarded to the accused, therefore, do not call for interference.

The death sentence awarded to the accused was confirmed by the High Court.

Sardar Mohabbat Ali Dogar for Appellant.

Mrs. Roshan Ara, Assistant Advocate‑General assisted by Malik Muhammad Jahangir Aslam for the State.

Date of hearing: 3rd June, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 458 #

P L D 2002 Lahore 458

Before Tassaduq Hussain Jilani and Mian Saqib Nisar, J

M. ANWAR SAIFULLAH KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent.

Criminal Appeal No .1912 of 2000, decided on 13th June, 2002.

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

‑‑‑Ss. 9(a)(vi) & 35‑‑‑Ehtesab Ordinance (XX of 1997), S.3(l)(d) ‑‑‑ Rules of Business (Federal Government), R.5(14)‑‑‑Corruption and corrupt practices‑Allegation against the accused was that while holding the public office as a Minister he abused his official position by issuing directions to the Chairman of the Government‑owned Corporation to appoint 145 persons in the organization in violation of law and the relevant rules ‑‑‑Validity‑‑‑Concerned-Secretary of the Department, Officer concerned or the Competent Authority, as the case may be, was duty bound to apprise the elected representative (Minister) of the legal position in the matter‑‑‑None of the said officers had apprised the Minister of the correct legal position that the relevant regulations/rules were not applicable to the temporary employment/jobs and no rules needed to be relaxed and Chairman of the Corporation himself .was Competent Authority and he issued the requisite orders‑‑‑Chairman, therefore, could not absolve himself of the responsibility both morally and legally.

Dr. Farooq Sattar v. The State and others PLD 2002 Lah. 95 ref.

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

‑‑‑‑S. 9‑‑‑Corruption and corrupt practice‑‑‑Allegation against the accused was that while holding the public office as Minister, he abused his official position by issuing direction to the Chairman of the Government‑owned Corporation to appoint 145. persons in the organization in violation of law and relevant rules‑‑‑Undue influence‑‑‑Allegation of undue influence could not be inferred in absence of any positive evidence‑‑‑No prosecution witness in the case had alleged undue influence or pressure rather admittedly all the notifications of appointments, except three were issued after the accused was no longer a Minister.

‑‑‑‑S. 9(a)(vi)‑‑‑Corruption and corrupt practices‑‑‑Allegation against the accused was that while holding the public office as Minister, he abused his official position by issuing direction to the Chairman of the Government-owned Corporation to appoint 145 persons in the organization in violation of law and relevant rules‑‑‑Misuse of authority‑‑‑Concept‑‑‑Every mistake of civil law would not constitute offence because mens rea is an essential ingredient of a crime unless of course, it is an offence of strict liability‑‑Misuse of authority is not an offence of strict liability and mens rea is a sine qua non to prove the charges‑‑‑Principles.

The reference filed against the accused did not seek judicial review of the appointment made. It was filed under a Penal statute and the prosecution had to prove the charges framed.

Misuse of authority means the use of authority or power in a manner contrary to law or reflects an unreasonable departure from known precedents or custom. Every misuse of authority is not culpable. To establish the charge of misuse of authority, the prosecution has to establish the two essential ingredients of the alleged crime i.e. mens rea' and 'actus reus'. If either of these is missing, no offence is made out. Mens rea or guilty mind, in context of misuse of authority, would require that the accused has the knowledge that he had no authority to act in the manner he acted or that it was against law or practice m vogue but despite that he issued the instruction or passed the order. In the present case the documentary evidence led by the prosecution and its own witnesses admit that the accused was told that he had the authority to relax the rules and the competent Authority could make the appointments thereafter. The guilty intent or mens rea is missing. Even the actus reus is doubtful because he had not made the appointments. He merely approved the proposal and sent the matter to the competent Authority. At worst he could be accused of mistake of civil law i.e. ignorance of ruies. But a mistake of civil law negates mens rea.

Every mistake of civil law would not constitute offence because mens rea is an essential ingredient of a crime unless of course it is an offence of strict liability.

Misuse of authority is not an offence of strict liability and mens rea is a sine qua non to prove the charge.

In plain words misuse of authority would mean a wrong and improper exercise of authority, for a. purpose not intended by the law. A person may, in exercise of his authority, go wrong due to some ordinary human failing or error but this, per se, will not be actionable under the law. However, if a person knowingly and deliberately follows a wrong course of action and deviates from the purposes of law and proceeds to achieve some other objective either prohibited or not intended by the law then he becomes liable under the law. Therefore, mere erroneous order or lack of jurisdiction on the part of a public functionary will not amount to an offence under section 9(a)(vi) of the National Accountability Bureau Ordinance. However, if a public functionary deliberately uses or exercises his own authority or for that matter usurps the power of another public functionary with the objective of gaining any benefit or advantage for himself or for any other person then he will be guilty of an offence under section 9(a)(vi) of the Ordinance. It is true that mens rea is a necessary constituent for every penal offence except those of strict liability ... ... .. ..The provision of the Ordinance under consideration do not rule out mens rea and make the offence as one of strict liability. The very word of section 9(a)(vi) read with reference to the object of gaining any benefit or favour makes it abundantly clear that it means a deliberately wrong use of authority by a person to gain any benefit or favour for himself or any other person, Thus, the foundation of mens rea qua the offence under section 9(a)(vi) of the Ordinance would be found in two elements: first conscious misuse of authority and second, gaining of any benefit or favour by the accused for himself or for any other person.

A head of the department, or an institution, may sometimes exceed his normal administrative powers in the interest of institution and under some wrong impression about his authority on the basis of a practice in vogue or on account of a policy framed by the predecessors and continuance thereof without any objections more particularly when it is in the interest of smooth working of the institution. Every such irregularity is not to be treated as misuse of authority and more particularly is not to be treated as criminal offence. It is established principle of the criminal administration of justice that before convicting any person the prosecution is required to establish beyond any reasonable doubt, all the ingredients constituting an offence and if there is any lacuna, infirmity or doubt it has always to be resolved in favour of an accused person.

Maj. (Retd.) Tariq Javed Afridi v. The State PLD 2002 Lah. 233; The State v'. Jam Masliooq Ali and others PLD 2002 Kar. 72 and The President of Pakistan v. Mrs. Benazir Bhutto 1994 MLD 1969 ref.

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

‑‑‑‑S. 9(a)(vi)‑‑‑Corruption and corrupt practices‑‑‑Allegation against the accused was that while holding the public office as Minister he abused his official position by issuing direction to the Chairman of a Government-owned Corporation to appoint 145 persons in the Organization in violation of law and relevant rules‑‑‑Question arose as to whether the accused obtained for himself or for any other person a pecuniary advantage or favour through "corrupt", "dishonest" or "improper" and "illegal means "‑‑‑Nothing was available on record to show that the appointees belonged to the accused's constituency; that anyone of them was his relative or close associate; that the recommendees of any political persons were recommended or any of his close associates derived any pecuniary advantage. or benefit from the appointments so made ‑‑‑Prosecution had to prove every element of the charge i.e. that the alleged appointments were made through "corrupt", "dishonest", "improper" or "illegal means "‑‑‑Irregular appointment per se would not be a pecuniary advantage or benefit entailing penal consequences unless it was proved that the intent behind or the means adopted to secure the same were dishonest, corrupt or illegal‑‑‑Person could be charged and convicted even if the order passed was perfectly legal if it was proved that it was done in line of bribe in kind or cash‑‑‑When the mens rea was missing‑ in the case, the accused would clear the twin test i.e. subjective and objective to examine the criminality of a person accused of dishonest conduct‑‑Prosecution having failed to prove its case against the accused to sustain conviction, appeal of accused was allowed, judgment of Accountability Court was set aside and he was acquitted of the charges framed against him.

In the present case the question was as to, whether the accused obtained for himself or for any other person a pecuniary advantage or favour through "corrupt", "dishonest" or "improper and illegal means', there was nothing in evidence to show that the appointees belonged to accused's constituency; that anyone of them was his relative or close associate; that the recommendees of any political party, were accommodated or any of his closc associates derived any pecuniary advantage or benefit from the appointments so made. The prosecution was to prove every element of the charge i.e. that those appointments were made through "corrupt", "dishonest", "improper" or "illegal" means.

The afore‑referred expressions used in section 3(l)(d) of the Ehtesab Ordinance, 1997 are similar to the ones used in section 5(1) of the Prevention of Corruption Act, 1947.

An irregular appointment per se would not be a pecuniary advantage or benefit entailing penal consequence unless it is proved that the intent behind or the means adopted to secure the same were dishonest corrupt or illegal. A person could be charged and convicted under those provisions even if the order passed is perfectly legal if it is proved that it was done in lieu of a bribe in kind or cash.

Mens rea was missing in the present case. That being accused‑ would clear the twin test i.e. subjective and objective to examine criminality of a person accused of dishonest conduct.

The prosecution had failed to prove its case against the accused to sustain the conviction. Resultantly, appeal was allowed, the impugned judgment passed by the Judge Accountability Court, Lahore was set aside and accused was acquitted of the charges framed against him.

Mian Ghulam Muhammad Ahmad Khan Maneka v. President of Islamic Republic of Pakistan 1995 SCMR 571; Harris's Criminal Law by. Ian Mclean and Peter Morrish on General Principles of Criminal Responsibility, Mistake of Civil Law, at page 49 (Twenty‑second Edition by sweet and 'Maxwell Limited); Maj. (Retd.) Tartq Javed Afridi ,. 'Ine State PLD 2002 Lah. 233; M. Siddiqui‑ul‑Farooque v. The State PLD 2002 Kar. 24; M.Narayanan Nambiar v. State of Kerala AIR 1963 SC 1116; The State v. Jam Mashooq Ali and others PLD 2002 Kar. 72 and Aftab Ahmad Khan Sherpao, Ex‑Chief Minister of N.‑W.F.P. v. The State PLD 2001 Pesh. 80 ref.

Hakim Ali Zardari's case PLJ 2002 CrI.C. Lah. 499 distinguished.

Khawaja Haris Ahmad for Appellant.

Ahmer Bilal Sufi, Advocate/Deputy Prosecutor‑General, NAB and Muhammad Ghani, Advocate/Special Prosecutor for NAB.

Dates of hearing: 2nd, 7th, 14th, 16th, 21st, 23rd, 30th May and 4th June, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 482 #

P L D 2002 Lahore 482

Before Asif Saeed Khan Khosa, J

ABID HUSSAIN and another‑‑‑Petitioners

versus

CHAIRMAN, PAKISTAN BAIT‑UL‑MAL and others‑‑‑Respondents

Writ Petitions Nos. 11242 of 2001 and 6370 of 2002, heard on 2nd August 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 299, 308 & 53‑‑‑Diyat, Arsh and Daman ‑‑‑Definition‑‑‑Diyat is in fact an alternate punishment to Qisas and provisions of S.308, P.P.C, confirm the same ‑‑‑Daman and Arsh are independent punishments in their own right ‑‑‑Diyat, Arsh and Daman may, however, be correctly described as punishments which are compensatory in nature but nonetheless they remain substantive punishments‑‑‑Contention that these punishments are merely compensation and such compensation is another form of a debt attracting various provisions of the civil law for its recovery, is not apt.

It is true that the definitions of words Diyat, Arsh and Daman contained in section 299, P.P.C. describe them as 'compensation' but the fact remains that section 53, P.P.C. clearly provides that Qisas, Diyat, Arsh and Daman besides Tazir, death, imprisonment for life, imprisonments both rigorous and simple, forfeiture of property and fine are 'punishments' to which offenders are liable under the provisions of the Pakistan Penal Code, Diyat is in fact an alternate punishment to Qisas and the provisions of section 308, P.P.C. confirm the same. Likewise Daman and Arsh are independent punishments in their own right. Diyat, Arsh and Daman may, however be correctly described as punishments which are compensatory m nature but nonetheless they remain substantive punishments. Thus, to portray these punishments as merely compensation may not be apt and the argument that such compensation is another form of a debt attracting various provisions of the civil law for its recovery may also not be acceptable. A substantive 'punishment' provided for a penal offence has to be undergone by the convict in the manner provided by the criminal law and there is no escape from it other than any provided by the criminal law itself.

(b) Penal Code (XLV of 1860)‑‑‑ .

‑‑‑‑Ss. 331, 337‑X & 337‑Y‑‑‑Mode of payment or recovery of Diyat, Arsh or Daman ‑‑‑Difference in mode of payment or recovery between Diyat and Arsh on the one hand and Daman on the other is that Ss.331 & 337‑X, P.P.C. dealing with payment and recovery of Diyat and Arsh respectively expressly provide for a grace period of three years to the convict for their payment but S.337‑Y, P P.C. pertaining to ‑Daman is .silent about any such period which could well be a result of an inadvertent omission on the part of draftsman but if the omission in this regard is deliberate then the reason for the same is not readily discernible‑‑‑Remaining provisions of Ss.331, 337‑X & 337‑Y, P.P.C. in respect of mode of payment and recovery of Diyat, Arsh and Daman which are more or less similar, if not identical‑‑‑Steps provided in Ss.331, 337‑X and 337‑Y, P.P.C. in this regard recapitulated.

As regards the mode of payment or recovery of Diyat, Arsh or Daman, the same is provided for by the provisions of sections 331, 337‑X and 337‑Y, P.P.C. The difference in this regard between Diyat and Arsh on the one hand and Daman on the other is that sections 331 and 337‑X, P.P.C. dealing with payment and recovery of Diyat and Arsh respectively expressly provide for a grace period of three years to the convict for their payment but section 337‑Y. P.P.C pertaining to Daman is silent about any such period. This could well be a result of an inadvertent omission on the part of the Draftsman but if the omission in this regard is deliberate then the reason for the same is not readily discernible. The remaining provisions of sections 331, 337‑X and 337‑Y, P.P.C. in respect of the mode of payment and recovery of Diyat, Arsh and Daman are more or less similar, if not identical, and the same can be recapitulated through the following steps which are provided therein:

(i) After the final judgment by the Court (presumably the trial Court) the convict is to be allowed a period not exceeding three years, to pay Diyat or Arsh either in lump sum or in instalments.

(ii) if the convict fails to pay Diyat or Arsh or any part thereof within the above mentioned period allowed to him or he fails to pay Daman then he may be kept in jail until Diyat, Arsh or Daman is paid by him in full.

(iii) After failure of the convict to pay Divat or Arsh within the period allowed to him and non‑payment of Daman by him he may be released on bail if he furnishes security equivalent to the amount of Diyat, Arsh or Daman;

(iv) In case of death of the convict before payment of Diyat, Arsh or Daman the same is to be recovered from his estate.

‑‑‑‑Ss. 331, 337‑X & 337‑Y‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Mode of payment or recovery of Diyat, Arsh or Daman ‑‑‑Validity‑‑‑Most parts of Ss.331,.337‑X & 337‑Y, P.P.C. are replete with ambiguities, unexplainable obscurities and sometimes downright absurdities‑‑‑Law governing crime and punishment and dealing with lives arid liberties of citizens cannot be allowed to hold the field if such law is not only unreasonable but also capable of working as, an engine of unjustifiable oppression‑‑‑Reasons illustrated.

Upon a close and critical scrutiny of sections 331, 337‑X and 337‑Y, P.P.C. one finds that there are certain inherent obscurities and some downright absurdities engrained therein. It has already been noticed that a grace period up to three years for making the requisite payment has been provided for payment of Diyat and Arsh but no such period has been provided for payment of Daman. It is not clear whether during this grace period the convict is to remain in jail or on bail. It is also not clear whether the convict would be kept in jail even where he has made a partial payment of Diyat or Arsh within the grace, period or not. According to these provisions the grace period is to start from the date of the final judgment but it has not been clarified whether the date of the judgment would be the date of the judgment passed by the trial Court or the date of the judgment passed by the appellate or revisional Court. The fate of such grace period, if allowed, during the pendency of appeal or revision has also been left ambiguous in these provisions. It is. also not clear when and at what stage the consequences of non‑payment of Daman shall become operative as it is not provided that the convict shall be allowed any particular period for payment of Daman before his arrest for its non‑payment. The question regarding the true import and meaning of the words "kept in jail" has also been left abegging an answer. It is not clear whether these words mean that the convict is already in jail and he would continue to be "kept" there or they mean that he shall be arrested upon non‑payment of Diyat, Arsh or Daman after expiry of the period allowed to him for the purpose, if any, and shall then be kept in jail till the requisite amount is recovered from him. If such a grace period is to be allowed immediately upon announcement of the final judgment then it is not clear whether during such period the convict is to be set free to make arrangements for the requisite amount of money or he is to be kept in custody and to make arrangement for the money while confined in jail.

There may be eases wherein, apart from the sentence regarding payment of Diyat, Arsh or Daman on one or more counts of the Charge, the convict is also sentenced to death, imprisonment for life or other sentences of imprisonment on other counts of the Charge. Would such a convict also be entitled to be set free for a period up to three years upon announcement of the judgment o r such a convict is to make arrangements for making the requisite payment while confined in jail, is also an intriguing question as in the latter situation the concept of the grace period would lose its essence and spirit and in the former situation the convict may abscond to save his life or to avoid a prolonged imprisonment. Releasing the convict on bail implies that he is already in custody but it may not necessarily be the case because this part of the relevant statutory provisions becomes operative after expiry of the grace period allowed to the convict for making the requisite payment. If the convict is already in custody then this provision does not make any sense as it throws up a situation that during the period allowed to the convict for making the requisite payment he is in custody but upon his failure to make the payment within the said period he may be favoured with bail. This appears to be nothing but absurd as a convict is not expected to be rewarded for his failure in that' regard. Apart from that the concession of bail contemplated by these provisions can be extended only upon furnishing of 'security' by the convict and not upon furnishing of surety or personal bond. Security is normally of some valuable property. If such a convict owns any valuable property valuing equivalent to the amount of Diyat, Arsh or Daman or somebody is ready to come forward for the benefit of such a convict by providing such security for the purpose of his bail then it is, not expected that such a convict would prefer to remain in jail rather than furnishing of the necessary security for his bail. It appears that these provisions fail to cater for a convict who is completely a destitute and who has no one else to furnish such a security for his bail. Ridiculousness of these provisions is further highlighited by the provisions relating to recovery of the amount of Diyat, Arsh or Daman from the estate of a convict who dies without making such payment. There may be a convict having or leaving no estate at all. In such a case this pan of the punishment, which was primarily compensatory in nature, becomes meaningless or loses its relevance to the victim or his heirs. In case such a convict is on bail before his death, there the damage may be minimal but one can imagine a possible situation where he is being "kept in jail" for the requisite payment and after remaining in jail for the rest of his life he dies in jail without making such a payment and leaves behind no estate for making a recovery possible therefrom. In such a case, after serving out his entire substantive sentence of imprisonment, the convict would be said to have been imprisoned for the rest of his life for no other reason except hiss poverty and his such imprisonment is going to be of no real benefit to the victim or his heirs. It is this aspect of the matter which is the most offensive and unreasonable in the provisions of sections 331, 337‑X and 337‑Y, P.P. C.

Scrutiny of the provisions of sections 331, 337‑X and 337‑Y, P.P.C. shows that most parts of the said provisions are replete with ambiguities, unexplainable obscurities and sometimes downright absurdities. A law governing crime and punishment and dealing with lives and liberties of citizens cannot be allowed by High Court to hold the field if such law is not only unreasonable but also capable of working as an engine of unjustifiable oppression.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 331, 337‑X, 337‑Y & 337‑F‑‑‑Mode of payment or recovery of Diyat, Arsh or Daman ‑‑‑Validity‑‑‑Islamic dispensation of criminal Justice‑‑Relevant provisions of Ss.331., 337‑X & 337‑Y, P.P.C. are either unreasonable or oppressive and thus the same do not appear to be adjusting well with the principles of Islamic dispensation of criminal justice.

Section 338-F, P.P.C. requires that while interpreting and applying the provisions of the "Chapter containing sections 331, 337‑F and 337‑Y, P.P.C. High Court is to be guided by the injunctions of Islam as laid down in the Holy Qur'an and Sunnah. Islam is a religion of reason and compassion. The relevant provisions of the sections 31, 337‑X and 337‑Y. of the Pakistan Penal Code are either unreasonable or oppressive and. thus, the same do not appear to be adjusting well with the principles of Islamic dispensation of criminal justice.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 331, 337‑X & 337‑Y‑‑‑Constitution of Pakistan (1973), Art.14‑‑ Mode of payment or recovery of Diyat; Arsh or Daman ‑‑‑Inviolability of dignity of man‑‑‑After serving out his substantive sentence of imprisonment keeping such a convict in jail for the rest of his life merely because he is not in a position to pay the requisite amount of compensation to the victim or his heirs or because he is not in a position to furnish security for his bail is a punishment which is not only incommensurate .with the additional compensatory punishment awarded against 'such a convict but, is also demeaning, debasing, humiliating and offensive to human dignity‑‑‑Human being cannot be allowed to rot in jail like a vegetable or to die in an iron cage like an animal merely because, for no fault of his own he cannot buy his freedom by paying off another human being.

Putting a human being, the best of Almighty Allah's creations, behind the bars for the rest of his life for no other reason except his impoverished financial condition, is an idea offensive to the 'dignity' bestowed upon him by the Creator. The Holy Qur'an requires the believers to hate crime but not the criminal and to extend mercy and compassion towards his unfortunate predicament wherever and, however, possible. The Constitution of the Islamic Republic of Pakistan, 1973 ensures it as a Fundamental Right guaranteed by Article 14 thereof that the dignity of man is inviolable and even the worst criminal is entitled to his dignity as a human being. After serving out his substantive sentence of imprisonment, keeping such a convict in jail for the rest of his life merely because he is not in a position to pay the requisite amount of compensation to the victim or his heirs or because he is not in a position to furnish the requisite security for his bail is a punishment which is not only incommensurate with the additional compensatory punishment awarded against such a convict but is also demeaning, debasing, humiliating and offensive to human dignity. Human being cannot be allowed to rot in jail like a vegetable or to die in an iron cage like an animal merely because, for no fault of his own, he cannot buy his freedom by making payment to another human being.

(f) Islamic Jurisprudence‑‑‑

‑‑‑‑ Crime and punishment‑‑‑Mode of payment or recovery of Diyat, Arsh or Daman as provided in Ss.331, 337‑X & 337‑Y, P.P.C.‑‑‑Putting a human being behind the bars for the rest of his life for no other reason than his impoverished financial condition is an idea offensive to the 'dignity' bestowed upon him by God the Creator‑‑‑Islam requires the believers to hate crime but not the criminals and to spend on prisoners, slaves and those in debt and for saving their necks and for lessening their burdens and to extend mercy and compassion towards their unfortunate predicament wherever and however possible.

(g) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 331, 337‑X, 337‑Y, 53 & 64 to 71‑‑‑Criminal Procedure Code of (V of 1898), S.544‑A‑‑‑Compensation to the heirs of the person killed‑‑‑Mode of payment or recovery of Diyat, Arsh or Daman ‑‑‑Default in payment‑‑Procedure ‑‑‑Provisions of S.544‑A, Cr.P.C. dealing with a matter akin to that of Diyat, Arsh and Daman as well as to the purposes of Ss.331, 337‑X & 337‑Y, P.P.C. are not only otherwise clear, reasonable and fair but the same also fit into the general scheme of laws governing similar liabilities‑‑Mechanism and methodology provided in S.544‑A, Cr.P.C. can be followed in the matter of payment and recovery of Diyat, Arsh or Daman ‑‑‑Principles.

According to the provisions of section 53, P.P.C. fine is as much a punishment as Diyat, Arsh or Daman. The provisions of sections 64 to 71, P.P.C. clearly show that in case of default in payment of fine a convict may be detained in jail for a specified period but certainly not for an indefinite term. After expiry of that specified period the liability of the convict to pay the amount of fine remains intact but he cannot be imprisoned for that purpose any more. The same appears to be the position in the civil law in respect of debts or other financial liabilities even the provisions of section 544‑A Cr.P.C. dealing with a matter akin to that of Diyat, Arsh and Daman as well as to the purposes of sections 331, 337‑X and 337‑Y, P.P.C. contemplate and provide for a similar approach. Thus, there is no reason why in the matter of payment and recovery of Diyat, Arsh or Daman the mechanism and methodology provided in section 544‑A, Cr.P.C. may not be followed which provisions are not only otherwise clear, reasonable and fair but also fit into the general scheme of laws governing similar liabilities.

(h) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 331, 337‑X & 337‑Y‑‑‑Zakat and Ushr Ordinance (XVIII of 1980), S.8‑‑‑Pakistan Bait‑ul‑Mal Act, 1991 (I of 1992), S.4‑‑‑Mode of payment or recovery of Diyat, Arsh or Daman ‑‑‑Destitute prisoners are entitled to have assistance from the Zakat Fund or Bait‑ul‑Mal for the purposes of payment of Diyat, Arsh or Daman.

The State is the modern manifestation of Aqila and in an appropriate case such an assistance can be provided to a convict from the Zakat and Ushr funds and Bait‑ul‑Mal. The references from the Holy Qur'an, Hadith of the Holy Prophet (p.b.u.h.), opinions of various scholars of Islamic law and instances from the Islamic history show that in an appropriate case an Islamic State can pay, and has been paying, Diyat on behalf of convicts who are unable to pay the same on their own. This may be fo~‑manifold reasons. Firstly, the requisite compensation is meant to satisfy vengeance of the victim or his heirs and such a payment by the State obviates a likelihood of reprisal or vendetta and thereby achieves peace in the society which is one of the primary responsibilities of the State. Secondly, the State had failed to protect the victim's life or physical safety and it, thus, cannot avoid sharing the blame for the harm coming to him and therefore, chipping in by the State towards payment of compensation to the victim or his heirs is the least that the State can do in such a situation. And, thirdly being a welfare State, an Islamic 'State is even otherwise expected to reach out and come to the rescue and assistance of a helpless citizen in need, be he a convict who has substantially cleaned himself of the crime by undergoing the entire substantive sentence of imprisonment passed against him. Section 8 of the Zakat and Ushar Ordinance, 1980 and section 4 of the Pakistan Bait‑ul‑Mal Act, 1991 speak of "needy" and "other needy persons" respectively who are entitled to receive assistance from such sources. There is, thus, no reason why, especially in view of availability of such instances in the Islamic history, a destitute convict in the Islamic Republic of Pakistan may not receive assistance from such sources for the purpose of paying compensation to the victim or his heirs. It goes without saying that the‑ abovementioned laws provide for a detailed mechanism to find out whether the request for assistance made by a' person is genuine and bona fide or not. If the State pays the requisite compensation on behalf of the culprit on account of his financial inability in that regard then after the said culprit's release the State should make him undergo a compulsory service on a project of public welfare so that he is gainfully employed there and, thus, the amount of money spent by the State for his benefit in the matter of payment of compensation is ultimately recovered from him by the State appears to be a suggestion which needs consideration by the State. This suggestion not only solves the convict's immediate problem qua securing his release from prison but it also protects his self respect besides ensuring recovery of public money spent for the benefit of such a convict. The State is already spending a lot of money on boarding and lodging of such prisoners and there may be cases where the State may ultimately end up spending more on keeping a prisoner in jail than paying up such prisoner's liability towards the victim or his heirs. This aspect of the matter may also be taken note of by the concerned authorities while considering a request made by a convict for financial assistance for the purpose of paying compensation to the victim or his heirs or for paying fine which is payable to the State itself.

(i) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 331, 337‑X & 337‑Y‑‑‑Criminal Procedure Code (V of 1898), S.544‑A‑‑‑Constitution of Pakistan (1973), Arts. 9, 14, 4 & 199‑‑Constitutional petition‑‑‑Mode of payment or recovery of Diyat, Arsh or Daman ‑‑‑Validity‑‑‑Provisions of Ss.331, 337‑X & 337‑Y, P.P.C. pertaining to payment and recovery of Diyat, Arsh and Daman are violative of the Fundamental Rights guaranteed by Arts. 9 & 14 of the Constitution regarding life and liberty of citizens and dignity of man besides being offensive to the provisions of Art.4 of the Constitution pertaining to life and liberty of citizens‑‑‑High Court declared the provisions of Ss.331, 337‑X & 337‑Y, P.P.C., insofar as the same prescribe the mode of payment and recovery of Diyat, Arsh, Daman and treatment of the convicts for the same to be void on account of their inconsistency with the Fundamental and Constitutional Rights‑‑‑Consequent to such ‑declaration general law relating to Diyat, Arsh and Daman contained in Pakistan Penal Code shall remain intact but the provisions of Ss.331, 337‑X & 337‑Y, P.P.C. insofar as the same prescribe the mode of payment and recovery of Diyat, Arsh and Daman and treatment of the convicts for the same shall forthwith cease to exist‑‑High Court being conscious of the fact that the declaration by the Court may create a vacuum in the Pakistan Renal Code regarding the mode of payment and recovery of Diyat, Arsh and Daman and treatment of the convicts for the same observed that such a vacuum is quite capable of being adequately filled by the provisions of S.544‑A, Cr.P.C. which not only deal with similar matters but the same are quite just, fair and reasonable besides being in accord with the remaining body of laws dealing with similar matters‑‑‑High Court, therefore, further declared that till such time the relevant Legislature enacts any provision or provisions to substitute for the provisions of Pakistan Penal Code struck down, matters regarding the mode of payment and recovery of Diyat, Arsh and Daman and treatment of the convicts for the same shall be dealt with and handled by the concerned Courts and authorities in accordance with the provisions of 5.544‑A, Cr.P.C. with necessary adaptations, if required‑‑‑All those convicts .who are at present detained in prisons in the Province of the Punjab only on account of their failure to pay Diyat, Arsh or Daman shall be immediately released from prisons if they have already undergone imprisonment for a period of six months on account of non‑payment of Diyat, Arsh or Daman while the other convicts in prisons placed in similar situation shall also be dealt with accordingly upon maturity of their cases for such release‑‑‑Despite the release of such convicts in view of S.544‑A, Cr.P.C. their liability regarding payment of Diyat, Arsh or Daman shall remain intact and the amount due from them shall be recoverable as arrears of land revenue‑‑‑Destitute convicts, at any stage of the matter shall be entitled to apply before the concerned Authorities for assistance from the Zakat Fund or Bait‑ul‑Mal towards payment of Diyat. Arsh, Daman or fine and the concerned authorities shall be obliged to consider and take decision on all such requests air accordance with the relevant law and procedure‑‑‑High Court directed the office of the Court to send copies of the judgment to concerned quarters for compliance‑-Principles.

The provisions of sections 331, 337‑X and 337‑Y, P.P.C. pertaining to the mode of payment and recovery of Diyat, Arsh and Daman and treatment of the convicts for the same are replete with ambiguities, unexplainable obscurities and downright absurdities. Articles 4 and 9 of the Constitution of the Islamic Republic of Pakistan, .1973 enjoin that no person shall be deprived of his life or liberty save in accordance with law. These provisions of the Constitution obviously presuppose that a law affecting life or liberty of a person has to be reasonable, clear, fair and just. A law governing crime and punishment and dealing with lives and liberties of citizens cannot be allowed' to hold the field if such law is not only unreasonable, obscure and, at times, absurd but also capable of working as an engine of unjustifiable oppression. The abovementioned provisions of the Pakistan Penal Code are thus violative of the Fundamental Rights guaranteed by Articles 9 and 14 of the Constitution regarding life and liberty of citizens and dignity of man besides being offensive to the provisions of Article 4 of the Constitution pertaining to life anti liberty of citizens. The provisions of sections 331, 337‑X and 337‑Y, P.P.C. in so far as they prescribe the mode of payment and recovery of Diyat, Arsh and Daman and treatment of the convicts for the same are, therefore, declared to be void on account of their inconsistency with the above mentioned Fundamental and Constitutional Rights.

As a consequence of the declaration made above the general law relating to Diyat, Arsh and Daman contained in the Pakistan Penal Code shall remain intact but the provisions of sections 331, 337‑X and 337‑Y, P.P.C. in so far as they prescribe the mode of payment and recovery of Diyat, Arsh and Daman and treatment of the convicts for the same shall forthwith cease to exist.

Despite highest judicial recognition of the obscurities in the said provisions of the Pakistan Penal Code the recommendations made by the Peshawar High Court in the year 1998 and by the Supreme Court of Pakistan in the year 2000 have not been attended to so far either by the Federal Government or by the Council of Islamic Ideology and nothing has been done to date to solve the problems created by the said provisions. The Federal Government has even failed to frame the Rules in this regard contemplated by section 338‑G,.P.P.C. so as to inject some rationality into the relevant provisions. In this backdrop of apathy on the part of the concerned quarters High Court cannot leave the affected citizens in the lurch and allow them to keep on suffering on the basis of laws which are themselves defective. The declaration made by High Court may create a vacuum in the Pakistan Penal Code regarding the mode of payment and recovery of Diyat, Arsh and Daman and treatment of the convicts for the same but such a vacuum is quite capable of being adequately filled by the provisions of section 544‑A, Cr.P.C. which not only deal with similar matters but the same are quite just, fair and reasonable besides being in accord with the remaining body of laws dealing with similar matters.

If a statute contains two provisions dealing with somewhat similar situations then the Court can usefully utilize and apply the principles contained in the one such 'provisions while dealing with the other. The Pakistan Penal Code and the Code of Criminal Procedure are even otherwise statues which complement and supplement each other in most respects, and are generally perceived as counterparts in the system of criminal justice in Pakistan. Thus, if a makeshift substitute is available in the Code of Criminal Procedure for the provisions of the Pakistan Penal Code which have been struck down there is no reason why the said substitute available in the Code of Criminal Procedure may not be utilized for temporarily filling up the vacuum. High Court, therefore, declared that till such time the relevant Legislature enacts any provision or provisions to substitute for the provisions of the Pakistan Penal Code struck down by the ‑High Court, matters regarding the mode of payment and recovery of Diyat, Arsh and Daman and treatment of the convicts for the same shall be dealt with and handled by the concerned Courts and authorities in accordance with the provisions of section 544‑A, Cr.P.C. with necessary adaptations, if required.

As a necessary corollary to and consequence of what has been held above and keeping in view the provisions of section 544‑A, Cr.P.C. which contemplate a maximum period of 6 months' imprisonment in case of a convict's failure to pay compensation to the victim or his heirs, High Court directed that all those convicts who are at present being detained in prisons in the Province of the Punjab only on account of their failure to pay Diyat, Arsh or Daman shall be immediately released from prisons if they have already undergone imprisonment for a period of six months on account of non‑payment of Diyat, Arsh or Daman. The other convicts to prisons placed in a similar situation shall also be dealt with accordingly upon maturity of their cases for such release. It is, however, clarified that, to view of the provisions of section ‑544‑A, Cr.P.C., despite their release from prisons the liability of these convicts regarding payment of Diyat, Arsh arid Daman shall remain intact and the amount due from them shall be recoverable from them as arrears of land revenue. 1t is further clarified that at any stage of the matter destitute convicts shall be entitled to apply before the concerned authorities for assistance from the Zakat Fund or Bait‑ul‑Mal towards payment of Diyat, Arsh, Daman or tine and the concerned authorities shall be obliged to consider and take decision on all such requests in accordance with the relevant law and procedure.

The Office of High Court was directed to send copies of judgment to the Superintendents of all the Prisons in the Province of the Punjab for immediate compliance and implementation of the judgment. The Office shall also send copies of the judgment to the Federal and. Provincial Secretaries of the respective Law Departments, the Provincial Home Department and all the District and Sessions Judges in every District of the Province of the Punjab who shall supply a copy of judgment to all the Presiding Officers of all the Criminal Courts in their respective Districts for their information.

Al‑Qur'an: Sura 95, Verse 4; Sura 17, Verse 70, Sura 76; Verse 8, Sura 2; Verse 177, Sura 9, Verse 60; Sura Tauba, Verse 60; Sura 17, Verse 70; Sura 95, Verse 4; Sura 76. Verse 8; Sura 2, Verse 177; Sura 6, Verse 54; Sura 9, Verse 60; Sura 70, Verse 24; Sura 56, Verse 73; Sura 3, Verse 17; Sura 2, Verse 233; Sura 2, Verse 286; Sura 4, Verse 83, Sura 6, Verse 152; Sura 7, Verse 42; Sura 23. Verse 62, Sura 65, Verse 7; Sura 92, Verse 7, Sura 2 Verse 185, Sura 94, Verses 5, 6; In re: Suo Motu Constitutional Petition 1994 SCMR 1028; Abdul Rahim and 2 others v. Messrs United Bank Limited PLD 1997 Kar. 62; Syed Shaffat Hussain v. Kamran Khokhar 2000 MLD 801: Mst. Shirin Masood v. Malik Nasim Hassan, Judge Family Court and others ,1985 CLC 2758; Major Feroze Din Khan and others v. Sh Muhammad Amin PLD 1967 Lah. 966; Muhammad Afzal alias Seema v. The State 1999 SCMR 2652; Gulab v. The State 1997 PCr.LJ 193; Muhammad Kamal v. The State 1998 PCr:LJ 1781; Muhammad Zafar v. The State 2001 YLR 533; Allah Ditta v. The State PLD 2002 Lah. 406; Fazal Hussain v. The State 2002 PCr.LJ 1256; Tafheem‑ul‑Qur'an, Vol. I, Surah AI‑Baqara, Verse 177 by Maulana Abul A'la Maudoodi; Hudood, Qisas. Diyat wa Tazeerat, pp.43, 198, 373, 400 by Dr. Tanzil‑ur‑Rehman; Islami Qawaneen‑e‑Qisas wa Diyat, pp. 16, 87, 125 by Mian Masood Ahmad Bhutta; Islam Ka Faujdhri Qanoon, Vol.. 1,'pp.157, 172, 257 by Abdul Qadir Auda Shaheed; Tadabar‑i‑Qur'an, Vol. 1, p.431 by Amin Ahsan Islahi; . Mishkat‑ul‑Masahib, Vol. II, p.1163, English Translation by Alhaj Maulana Fazal‑ul‑Qur'an; Qisas our Diyat, pp.155, 156, 157, 248 by Ch. Altaf Hussain; Bada‑i‑Sana, Vol. VII, pp.561, 63, 564 translated by Prof. Khan Muhammad Chawla; Constitutional Foundations of Pakistan authored by Dr. Safdar Mahmood; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Haji Nizam Khan v. Additional District Judge, Layllpur and others PLD 1976 Lah. 930; Mst. Fazal Jan. v. Roshan Din' and 2 others PLD 1990 SC 661; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Zohra and 5 others v. The Government of Sihdh, Health Department through its Secretary, Sindh Secretariat, Karachi and another PLD 1996 Kar. 1; The Employees of the Pakistan Law Commission, Islamabad v. Ministry of Works and 2 others 1994 SCMR 1548; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1,989 Kar. 404; Mumtaz Ali 'Bhutto and another v. The Deputy Martial Law Administrator, Sector 1, Karachi and 2 others PLD 1979 Kar. 307; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Iii re: Juvenile Jail, Landhi, Karachi. 1990 PCr. LJ 1231; Sh. Liaquat Hussian and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Muhammad Riaz v. District Collector, Okara PLD 1997 Lah. 680; Federation of Pakistan v. Gul Hassan PLD 1989 SC 633; Muhammad Afzal alias Seema .v. The State 1999 SCMR 2657; The Bank of Punjab v. Administrator‑General, Central‑ Zakat Administration; Islamabad and others PLD 1994 Lah. 207; Bada‑i‑al‑Sana, Vol. VII, translated by Prof. Khan Muhammad Chavvla and published by. Markaz‑e‑Tehqeeq, Research Cell, Diyal Singh Trust Library, Nisbat Road, Lahore; The Islamic Criminal Justice published in 1979 by Oceana Publication Incorporation, New York, U.S.A., p.205; Ideal Muslim, p.262 by Dr. Muhammad Alt‑al‑Hashmi, Sahib‑ul‑Bukhari, Hadith Nos.2298, 3560, 6898; Sahib‑ml‑Bukhari, Haidth No.6125; Al‑Mawafiqat p.15; Begum Rachida Patel v. Federation of Pakistan PLD 1989 FCC 95; Sahib‑ul‑Bukhari, Hadith No.4781; Sunan Abu Uaud, Second Vol., Chap. 513, Hadith No.1184, p.465; Mishqat, Hadith No.1733, p.386; Islam Ka Faujdari Qanoon, Vol. 2, p.61 by Abdul Qadir Auda Shaheed; Fiqah Hazrat Umar, p.317 by Dr. Muhammad Rawas Kalaji; Qisas‑,o‑Diyat, pp:60, 61 published in 1990 by Adara‑e‑Tehqeeq‑e‑Islami, Islamabad; Hudood, Qasas, Diyat Tazirat, pp.203 to 207; Fiqah Hazrat Abu Bakar, p.132 by Dr.Muhammad Rawas Kalaji; Al‑Fiqah, (Fiqah‑e‑Jafaria), Kitab‑ul‑Diyat by Muhammad Al‑Hussaini‑al‑Sherazi, Tehreer‑ul‑Wasila; Vol.4, p.437 by Imam Khomeni; Shara‑i‑al‑Islam fi Masail‑ul‑Halal‑i‑WalHaram by Abdul Qasim Najmuddin Jafar bin Hassan; Sahib‑Muslim, Vol. 2, Haidth No. 137 published by Sheikh Ghulam Ali & Sons; Al‑Faroa Minal Kafi, p.360 by Al‑Kulaini Al‑Razi, Sahih Muslim Sharif, pp.295 to 297; Mishqat‑ul‑Masahib, Vol :. 3, p.169; The Mejelle, pp.5 to 7, Principles Nos. 17, 18, 20', 21, 30, 31 and 32, published by PLD Publishers, Lahore; In re: Suo Motu Constitutional Petition 1994 SCMR 1028 and Maqsood v. Ali Muhammad and another 1971 SCMR 657 ref.

(j) Interpretation of statutes‑

‑‑‑‑ If a statute contains two provisions dealing with somewhat similar situations then the Court can usefully utilize and apply the principles contained in one such provision while dealing with the other.

(k) Penal Code (XLV of 1860)‑‑‑

‑‑‑Preamble‑‑‑Criminal Procedure Code (V of 1898), Preamble‑‑‑Pakistan Penal Code and Criminal Procedure Code are statutes which complement and supplement each 'other in most respects and are generally perceived as counterparts in system of criminal justice in Pakistan.

M.D. Tahir, for Petitioners.

Kh. Saeed‑uz‑Zafar, Dy. A.‑G., Ishfaq Ahmad Chaudhry, Law Officer on behalf ‑of the A.‑G., Punjab and Raja Abdul Qavvum, Law Officer for the Inspector‑General, Prisons, Punjab for Respondents

Syed Afzal Haider, Dr.. Riaz‑ul‑Hassan Gilani, Syed Shabbar Raza Rizvi and Umar Ata Bandial as Amicue Curiae.

Dates of hearing: 27th, 28th, 29th May; 3rd; 5th, 6th, 11th June; 12th, 18th, 22nd July and 2nd August, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 521 #

P L D 2002 Lahore 521

Before Tassaduq Hussain Jillani, J

UMAR AHMAD GHUMMAN‑‑‑Petitioner

versus

GOVERNMENT OF PAKISTAN and others‑‑‑Respondents

Writ Petition No. 11199 of 2002, decided on 2nd September, 2002.

(a) International law‑‑‑

‑‑‑‑"Nationality" and "citizenship" ‑‑‑Meanings and distinction‑‑‑Dual nationality‑‑‑ Notion and incidence.

Nationality in common parlance means membership of a particular nation. In International Law it refers to the attributes of a person natural or artificial person belonging to a State with certain rights and obligations which the law may prescribe. Citizenship on the other hand, is a term of Municipal Law which denotes the relationship between a natural person/an individual and the State conferring the civil and political rights to individuals corresponding with duties.

Nationality has reference to the jural relationship which may arise for consideration under international law. On the other hand 'citizenship' has reference to the jural relationship under municipal law. In other words, nationality determines the civil rights of a person, natural or artificial, particularly with reference to international law, whereas citizenship is intimately connected with civil rights under municipal law. Hence all citizens are nationals of a particular State but all nationals may not be citizens of the State. In other words citizens are those persons who have full political rights as distinguished from nationals who may not enjoy full political rights and are still domiciled in that country.

The concept of citizenship is as old as the Greek City States. Down the ages nations and countries have enacted laws regarding acquisition and loss of citizenship and also with regard to dual nationality. These rules and enactments primarily fall in the domain of Municipal Law and not International Law. Till recent times, these matters have not been of much concern in International Law. Consequently, there are only a few rules of customary International Law which specifically deal with just a few issues of nationality. Some of these issues are enforced, naturalization, cession of territory and instances of diplomatic protection to nationals of a country. The Municipal Laws of various countries demonstrate a varied approach so far legislation on dual nationality is concerned. Countries have enacted laws to encourage some form of dual nationality while there are countries where laws stipulate loss of nationality in case a citizen I acquires foreign citizenship.

The following cases of acquisition of dual nationality are possible by the combined operation of the laws of two States: dual nationality is acquired at birth by children born in a State which has adopted the principle of jus soli, by virtue of which nationality is acquired by the fact of birth within the territory of the State, of parents who are nationals of another State which applies the principle of jus sanguinis, under which nationality is acquired by descent, irrespective of place of birth. Dual nationality also arises when an individual who acquires a new nationality by naturalization does not thereby lose the nationality of his home State. Marriage causes dual nationality when one of the spouses acquires the nationality of the other spouse while also retaining the earlier nationality. Transfer of sovereignty may bring about the acquisition of dual nationality by residents of the transferred territory who obtain the nationality of their new sovereign while retaining the nationality of the State within whose territorial jurisdiction they were prior to the transfer.

Some of the afore‑referred modes of acquiring dual nationality were sought to be discouraged by certain States either by requiring the individual, after he had attained the majority to choose a single nationality or to face the loss of the other, requiring the native born dual nationals residing abroad (as well as those born abroad) to indicate their choice of nationality after attaining the age of majority not by a formal word but by positive act of residence in the country of their intended choice.

The concept and practice of dual nationality met a major set back during cold war. The countries of opposite camps found a negative dimension in this concept and thought that individuals possessing double nationality could cause betrayal and subversion.

The economic, political and socio‑compulsions have transformed the international system. A dual national is no longer necessarily a threat to any country. Countries are increasingly realizing that any attempt to discourage naturalization of those who would keep their original nationality intact would result in a mass of alien residents within a country who have no stakes in the country of their residence and therefore, may not contribute their bit in the political process. Countries, therefore, have accorded greater acceptance to the notion and incidence of the dual nationality.

S.T. Corporation of India v. Commercial Tax Officer and others AIR 1963 SC 1815; Dual Nationality by Prof. N. Bar‑‑Yaacov, p.3; Mackenzie v. Hare (1915) 239 US 299; Perez v. Brownell (1958) 356 US 44; Dual Nationality and the Meaning of the Citizenship by Prof. Peter J. Spiro; Afroyim v. Rusk (1967) 287 US 253 and Dual Citizenship in Australia (Current Issues Brief 5 2000‑01 ref.

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

‑‑‑‑Art. 25‑‑‑Equality of citizens‑‑‑Concept‑‑‑Classification‑‑‑Parameters of reasonable classification permissible under Art.25 of the Constitution enumerated.

The concept embodied in Article 25 of the Constitution of Pakistan (1973) is analogous to Article 7 of the Universal Declaration of Human Rights which stipulates that "all persons are equal before the law and are entitled without any discrimination to the equal protection of law". Article 20 of the Covenant of Human Rights, .1950 conveys the same message and this right is reflected in Fourteenth Amendment in U.S. Constitution and Article 14 of the Indian Constitution.

This widely accepted principle propounds that among equals the law should be equal, that it should be administered equally and that all alike should be treated alike. The concepts "equality before law" and "equal protection before law" appear to be synonymous terms but it would be an over simplification. The former is a negative concept whereas the latter conveys a positive connotation. One discourages and negates all special privileges to any citizen or class and subjects them to ordinary law of the land. The other declares that all citizens must have equal protection if placed in the same circumstance and situation.

Equal protection to all is the basic principle on which rests justice under the law. State may not deny to any person within its jurisdiction the equal protection of the laws. This clause is a pledge of equal protection of laws or protection of equal laws; and it means, and is' guaranty, that all persons subjected to State legislation shall be treated alike, under like circumstances and conditions, both in privileges conferred and in liabilities imposed; but it guarantees only the protection enjoyed by other persons or classes in the same place and under like circumstances, in pursuit of their lawful occupation, and it is not a guaranty of equality of operation or application of State legislation on all citizens of a State.

A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter .of the selection or classification. After such scrutiny the Court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection of classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that therefore, the discrimination is inherent in the statute itself. In such a case the Court will strike down both the law as well as the executive action taken under such law.

Only reasonable classification is permissible under Article 25 of the Constitution of Pakistan (1973) parameters of which are as under:

(i) That equal protection of law does not envisage that every citizen is treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to‑be treated alike.

(ii) That reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis.

(iii) That different laws can validly be enacted for different sexes, persons of different age groups, persons having different financial standard and persons accused of heinous crimes.

(iv) That no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable classification in the other set of circumstances.

(v) That a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25.

(vi) That in order to make a classification reasonable, it should be based‑‑‑

(a) on an intelligible differentia which distinguishes person or things that are grouped together from those who have been left out;

(b) that the differentia must have rationale nexus to the object sought to be achieved by such classification.

A classification is permissible under Article 25 of the Constitution but it must be based on intelligible differentia which distinguishes persons grouped together from those who are left out and it should have nexus with the object of the statute. Even a geographical distinction/classification is permissible provided it is based on the particular interest of the geographical area which is distinct as compared to the remaining i.e. those who have been excluded.

Corpus Juris Secundum, Vol. 16‑A, Art.502; Ram Krishna Dalmia v. Justice Tendolkar AIR 1958 SC 538; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 and Mehram Ali and others.v. Federation of Pakistan and others PLD 1998 SC 145 ref.

‑‑‑‑Art. .199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court while enforcing the Fundamental Rights can declare a law to be void if the same is inconsistent with the fundamental rights guaranteed by the Constitution‑‑‑Principles.

Under Article' 199 of the Constitution, the High Court while enforcing the fundamental rights can declare a law to be void if it is inconsistent with the fundamental rights guaranteed by the Constitution.

The powers of High Court for enforcement of Fundamental Rights guaranteed under the Constitution are wide and in terms of Article 199 of the Constitution it can pass any order which would be appropriate in the facts and circumstances of a case.

The expression "as may be appropriate for the enforcement of any of the fundamental rights" appearing in Article 199(1)(c) in the Constitution confers upon the Constitutional Court a discretion to provide relief under the law to a citizen which may be necessary.

Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 and Dual Nationality and the Meaning of Citizenship‑by Peter J. Spiro ref.

(d) Pakistan Citizenship Act ( II of 1951)‑‑‑

‑‑‑‑Preamble‑‑‑Overview of the Pakistan Citizenship Act, 1951.

The Pakistan Citizenship Act is a small Act consisting of 23 sections (promulgated on 13th April, 1951). Some of the important provisions of the Act are i.e. section 3 which stipulates as to who would be citizen of Pakistan at the commencement of the Act, 4 relates to citizenship by birth, 5 takes to citizenship by descent, 6 talks of citizenship by migration, 7 excludes those persons migrated from Pakistan in 1947 from the ambit of citizenship, section 8 makes a special provision for rights of citizenship of certain persons residing abroad to be registered as citizens of Pakistan in circumstances mentioned therein. Section 9 provides for citizenship by naturalization, 14 originally did not permit dual nationality Nit it was subsequently amended by adding subsection which made dual nationality permissible for Pakistani citizens residing in certain countries, section 14‑A provided for renouncement of Pakistani citizenship by a citizen residing abroad if the same is required for his acquisition of a foreign citizenship, section 16 enumerates situations wherein a citizen of Pakistan can be deprived of his citizenship, 20 makes a provision for acquisition of Pakistani citizenship by common wealth countries and section 23 enables the Federal Government to frame rules for carrying into effect the provision of this Act.

(e) Pakistan Citizenship Act ( II of 1951)‑‑‑

‑‑‑‑Ss. 14(3), 14‑A & 16‑‑‑Pakistan Citizenship Rules, 1952, R.19‑13‑‑?Constitution of Pakistan (1973), Arts. 4, 25 & 199‑‑‑Citizenship is the most valuable right that an individual may have in a State‑‑‑Due process and equality before law‑‑‑Classification‑‑‑ Judicial review‑ ‑‑Scope‑‑‑Dual nationality‑‑‑Declaration of intention to resume citizenship of Pakistan‑‑?Permissible dual nationality confining to the countries mentioned in S.14(3) of the Pakistan Citizenship Act, 1951 or which the Federal Government may notify‑‑‑Validity‑‑Power given in S.14(3) of Pakistan Citizenship Act, 1951 is not uniform; it has been left out to the entire discretion of the Federal Government rather to its wisdom and caprice to decide whether to issue a notification specifying a country with whom dual nationality arrangement is permissible‑‑‑Neither Pakistan Citizenship Act, 1951 nor the Rules thereunder provide any guideline and the provisions are not only arbitrary on the face of it but have been proved to be so on glance of the countries with whom nationality has been made permissible and those which have been left out‑‑‑Effect of provisions of Ss. 14 & 14‑A, ‑Pakistan Citizenship Act, 1951 is that the citizens of Pakistan can retain their citizenship provided the Municipal Law of the other country, nationality of which is sought, does not prohibit dual nationality‑‑‑If, however, a Pakistani citizen voluntarily renounces his citizenship of origin to acquire a foreign nationality that is his choice but no one, who is a citizen of Pakistan under Pakistan Citizenship Act, 1951 can be made to loose his citizenship unless the acquisition of foreign citizenship makes it a condition precedent and he does so or his conduct falls within the mischief of S.16, Pakistan Citizenship Act, 1951‑‑?Intention of the Legislature is to facilitate the Pakistan citizens living abroad to retain their contact with Pakistan but the language of the said provisions reflects discrimination, arbitrariness and is not in accord with the intent of the law‑makers‑‑‑Act of the Federal Government in not notifying a country (U.S.A.) in terms of S.14(3) of the Pakistan Citizenship Act, 1951 and thereby depriving the Pakistani expatriates of equal protection of law is discriminatory, violative of Fundamental Rights and therefore, cannot be sustained‑‑‑Section 14(3) of the Pakistan Citizenship Act, 1951, insofar as same vests in the Federal Government, in absence of any guideline, the power to notify the country where citizens of Pakistan could retain their citizenship of origin notwithstanding the acquisition of foreign citizenship amounts to excessive delegation and its exercise has led to discrimination between citizens of Pakistan living in one country and the other‑‑‑High Court declared S.14(3) to be violative of Arts.4 & 25 of the Constitution of Pakistan and directed that orders passed and notification issued so far shall, however, be deemed to have been issued validly and shall remain intact‑‑?High Court observed that Federal Government may have power but the law must lay down guidelines i.e. parameter within which Government may exercise its discretionary power to satisfy the considerations of due process and equality before law‑‑‑Absence of such element tends to uncertainty and vagueness which are antithesis of the concept of Rule of law and citizens do not have to pay the price for such a dispensation‑‑‑Pakistanis who have not renounced Pakistani citizenship shall continue to be the citizens of Pakistan and entitled to rights and liabilities accordingly‑‑‑As regards Pakistani citizens who have renounced their citizenship of origin and would like to have the same resumed, law is not explicit‑‑‑Facility of dual nationality is being extended to the Pakistani expatriates in U.S.A. for the first time, those Pakistanis who have renounced their original nationality under the impression that they had no option but to do that also deserve the benefit of the new deal by facilitation of resumption of the original citizenship‑‑‑High Court, therefore, further directed that till such time the law and rules are suitably amended, R.19‑B, Pakistani Citizenship Rules, 1952 shall be applicable mutatis mutandis and a declaration in Form Y prescribed under the said rule shall be sufficient proof of the intent of resumption of citizenship and the declarant shall be treated as a citizen of Pakistan‑‑?Principles.

The power given in subsection (3) to section 14 of the Pakistan Citizenship Act is obviously not uniform. It has been left out to the entire discretion of the Federal Government rather to its whim and caprice to decide whether to issue a notification specifying a country with whom dual nationality arrangement is permissible. Neither the Act nor the Rules framed thereunder provide any guideline. These provisions are not only arbitrary on the face of it but have been proved to be so if one glances at the countries with whom the dual nationality has been made permissible and those which have been left out.

A classification is permissible under Article 25 of the Constitution but it must be based on intelligible differentia which distinguishes persons grouped together from those who are left out and it should have nexus with the object of the statute. Even a geographical distinction/classification is permissible provided it is based on the particular interest of the geographical areas which are distinct as compared to the remaining i.e. those areas which have been excluded.

The right of citizenship is not an ordinary right. A study of the Constitution of Islamic Republic of Pakistan would indicate that certain rights have been granted to all "persons" residing in the State while some rights are available to only "citizens". For instance the right to be treated in accordance with law (Article 4), right of freedom of movement (Article 15) ?right of freedom of Assembly (Article 16), of freedom of Association (Article 17). of Trade (Article 18), of speech (Article 19) and to profess religion and of equality before law and equal protection of law (Article 25) are available to citizens alone. On the other hand right to life (Article 9), right to safeguard against illegal detention (Article 10) and of inviolability of dignity of man (Article 14) are available to all persons irrespective of their nationality or citizenship. The citizen under the Constitution enjoys a special status. The right to be a citizen is, therefore, a precious right. It is the most valuable right that an individual may have in a State.

Citizenship is man's basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen.

The loss of citizenship entails deprivation of the aforementioned rights and privileges. Any one who is deprived of this right would be "like some dishonoured stranger, he who is excluded from the honours of the State is no better than an alien". It was in recognition of the afore‑referred basic right which persuaded the Legislature to remedy, the mischief of the statutory loss of nationality originally contemplated in the unamended section 14, and subsection (3) was added unfortunately whoever framed or drafted the amended provision did it in a slovenly manner and demonstrated want of care. The net result has been a language which reflects discrimination, arbitrariness and is not in accord with the intent of the law maker. But the Court has to ascertain the said intent while construing the statute.

In order to ascertain the true meaning [of the Legislature] it is necessary to ascertain the circumstances with reference to which the words were used and what was the object appearing from those circumstances which the Legislature had in view.

One of the fundamental principles of interpretation of statutes is the principle of equitable construction. It mandates that in construction of law both the purpose and the spirit of law should be kept in view.

Since the intention of the Legislature constitutes the law of its enactments, it is the intention rather than the literal meaning of the statute which controls, or, as is generally said, the spirit of the statute will prevail over the strict letter. Consequently, cases which do not come within the strict letter of the statues, if within the spirit, will fall within the scope of the statute, and cases within the letter of the statute, if without its spirit, will not come within its operation. But this principle is not applicable if the statute is clear and unambiguous, so that there is no doubt concerning the legislative intent. Numerous factors may, however, raise such a doubt. It may be raised where a literal meaning leads to absurdity, contradiction, or any other effect which is contrary to the legislative objects of legislation. As a result, the Court may consider the spirit and reason of a statute where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the law‑makers. It may also be used where the statute is inaccurate in the use of words or phrases, or contains provisions inserted unintentionally. Even ‑words may be modified, changed, rejected, or transposed by virtue of the application of this principle.

The legislative intent that citizens of Pakistan were allowed to retain their original nationality notwithstanding the acquisition of citizenship in another country is manifest not only from the Parliamentary debate referred to in the, preceding paragraphs, the reading of subsection (3) to section 14 of the Pakistan Citizenship Act, but also from the content of section 14‑A as also from the comments submitted by the Ministry of Interior and the statement made by its official while appearing before the Court. A careful reading of section 14‑A would indicate that a citizen of Pakistan living abroad was required to renounce Pakistani citizenship only in case it was a condition precedent for acquisition of citizenship of a foreign country concerned and not otherwise. Subsection (1)(b) to section 14‑A provides that a citizen of Pakistan shall cease to be a citizen of Pakistan if he "has been given by the competent Authority of another country any valid document assuring him of the grant of the citizenship or nationality of that other country upon renouncing his citizenship of Pakistan".

The effect of sections 14 and 14‑A of the Act would be that the citizens of Pakistan can retain their citizenship provided the Municipal Law of the other country, nationality of which is sought, does not prohibit duel nationality.

If a Pakistani citizen voluntarily renounces his citizenship of origin to acquire a foreign nationality that is his choice but no one, who is a citizen of Pakistan under the Act, can be made to loose his citizenship unless the acquisition of foreign citizenship makes 'it a condition precedent acid he does so or his conduct falls within the mischief of section 16 of the Act.

The act of the Federal Government .in not notifying U.S.A. as a country in terms of section 14(3) of the Act and thereby depriving Pakistani expatriates of equal protection of law is discriminatory, violative of Fundamental Rights, and therefore, cannot be sustained. An executive action or inaction based on an incorrect premise could be made subject of judicial review.

Judicial review would be justified in two situations: first, where the existence of a set of facts is a condition precedent to the exercise of a power, and second, when the decision‑maker has taken into account as a fact something which is wrong or where he has misunderstood the facts upon which the decision depends.

Subsection (3) to section 14 of the Pakistan Citizenship Act, 1951 insofar as it vests in the Federal Government in absence of any guideline the power to notify the country where citizens of Pakistan could retain their citizenship of origin notwithstanding the acquisition of foreign citizenship amounts to excessive delegation and its exercise has led to discrimination between citizens (of Pakistan) living in one country and the other. This is violative of Articles 4 and 25 of the Constitution and it is so declared. All orders passed and notifications issued so far shall, however, be deemed to have been issued validly and shall remain intact. The Federal Government may have power but the law must lay down broad guidelines i.e. parameter within which it may exercise this discretionary power to satisfy the considerations of due process and equality before law. Absence of this element leads to uncertainty and vagueness which are antithesis of the concept of Rule of Law. The exclusion of the kind under consideration price that the citizens have to pay for such a dispensation.

Those Pakistanis who have not renounced Pakistani Citizenship shall continue to be the citizens of Pakistan and entitled to rights and liabilities accordingly. However, for Pakistani citizens who have renounced their citizenship of origin and would like to have it resumed, the law is not explicit. The facility of dual nationality is being extended to the Pakistani expatriates in U.S.A. for the first time. Those who had renounced their original nationality under the impression that they had no option but to do that also deserve the benefit of this new deal by facilitation of resumption of the original citizenship. It is, therefore, directed that till such time the law and rules are suitably amended, Rule 19‑B of the Pakistan Citizenship Rules, 1952 shall be applicable mutatis mutandis and a declaration in Form Y prescribed under the said rule shall be a sufficient proof of the intent of resumption of citizenship and the declarant shall be treated as a citizen of Pakistan.

Perez v. Brownell (1958) 356 US 44, 64; Commentary on The Constitution of United Stated by Bernard Schwartz, p.714; Abrahams v. MacFisheries Ltd. (1925) 2 KB 18; Crawford, on Interpretation of Laws (Statutory Construction), S.178; Dual Citizenship and American National Identity by Stanely A. Renshon; Dual Nationality and the Meaning of Citizenship by Peter J. Spiro and Judicial Review of Administrative Action, 5th Edn.,, Chap. 13, p.561 ref.

(f) Interpretation of statutes‑

‑‑‑‑ Spirit and reasons of a law‑‑‑Determination‑‑‑Principles.

Since the intention of the Legislature constitutes the law of its enactments, it is the intention rather than the literal meaning of the statute which controls, or, as is generally said, the spirit of the statute will prevail over the strict letter. Consequently, cases which do not come within the strict letter of the statutes, if within the spirit, will fall within the scope of the statute, and cases within the letter of the statute, if without its spirit, will no: come within its operation. But this principle is not applicable if the statute is clear and unambiguous, so that there is no doubt concerning the legislative intent. Numerous factors may, however, raise such a doubt. It may be raised where a literal meaning leads to absurdity, contradiction, or any other effect which is contrary to the legislative objects of legislation. As a result; the Court may consider the spirit and reason of a statute where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the law‑makers. It may also be used where the statute is inaccurate in the use of words or phrases, or contains provisions inserted unintentionally. Even words may be modified, changed, rejected, or transposed by virtue of the application of this principle.

Abrahams v. MacFisheries Ltd. (1925) 2 KB 18 and Crawford on Interpretation of Laws (Statutory Construction), S.178 ref.

(g) Pakistan Citizenship Act (II of 1951)‑‑

‑‑‑‑S. 14(3)‑‑‑Pakistan Citizenship Rules, 1952, R.19‑‑‑Constitution of Pakistan (1973), Art.63(1)(c)‑‑‑Dual nationality‑‑‑Disqualification to contest election of Parliament in Pakistan‑‑‑ Person having admittedly acquired citizenship of a foreign country was hit by Art.63(1)(c) of the Constitution of Pakistan and could not contest elections unless of course he removed such disqualification in terms of Rule 19 of the Pakistan Citizenship Rules, 1952.

Article 63(1)(c) of the Constitution explicitly mandates that "a person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis‑e‑Shoora (Parliament), if he ceases to be a citizen of Pakistan; or acquires the citizenship of a foreign State". Thus the disqualification comes into play the moment a person becomes a candidate or seeks election. Every citizen of a State is not allowed to contest the election. The qualifications and disqualifications. have been enumerated in the Constitution and by the law of the land. Person having admittedly acquired citizenship of a foreign country, was hit by the Article 63(1)(c) of the Constitution and could not contest elections unless, of course, he removed this disqualification in terms of Rule 19 of the Pakistan Citizenship Rules, 1952.

Syed Mohsin Abbas for Petitioner.

Kh. Saeed‑uz‑Zafar, Dv. A.‑G. for Respondents.

Umar Atta Bundial, Syed Mansoor Ali Shah and Syed Shabbar Raza Rizvi: Amicus curiae.

Date of hearing: 16th August, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 555 #

P L D 2002 Lahore 555

Before Ch. Ijaz Ahmad, J

Mrs. ANJUM IRFAN‑‑.Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY

through Director‑General and others‑‑‑Respondents

Writ Petition No.25084 of 1997, decided on 14th June, 2002, (a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Chap. XIV [Ss.268 to 294‑BJ‑‑‑Offences affecting public health, safety. convenience, decency and morals‑‑‑Object of Chap.XIV, P.P.C.‑‑Prohibition of pollution of water does not require any particular mens rea: it is negligence because every one has a duty of care based on common sense not to pollute river water which is used for drinking by men and other animals‑‑‑Spoliation of water and air may take place due to the activities either of private persons or‑corporation or public authorities‑‑‑ Public spring like a well is reservoir like a Municipal' Water Tank and is dealt with under S.277, P.P.C.‑‑‑Corruption or fouling of the water of any public spring or the reservoir so as to render it less tit for the purpose for which it is ordinarily used, is punishable under S.277, P.P.C.

The sole object of including Chapter XIV in the P.P.C. is to safeguard the public health, safety and convenience by causing those acts which make environmental pollution threatening the life of the people, punishable. 1n other words, all those acts which endanger public health directly or indirectly have been brought under the purview of the Penal Code. The Penal Code in Chapter XIV consisting of sections 268‑‑294‑B deals with public nuisance, i.e. the offences relating to public health safety convenience, decency and morals. Criminal liability of companies in Pakistan is quite clear. The company is not exempted from criminal liability merely because it is a juristic person and not a natural person. Section 11 of P.P.C. includes any company or association or body of persons whether incorporated or not into the word person. The provisions relating to the prohibition of pollution of water do not require any particular mens rea. It is negligent because every one has a duty of care based on common sense not to pollute river water which is used for drinking by men and other animals. The spoliation of water and air may take place due to the activities either of private persons or corporation or public authorities. A public spring like a well is reservoir like a Municipal Water Tank is dealt with under section 277 of P.P.C. Corruption or fouling of the water of any public spring or the reservoir so as to render it less fit for the purpose for which it is ordinarily used, is punishable under this section.

(b) Easements Act (V of 1882)‑‑

‑‑‑‑S. 7(f)‑‑‑Every riparian owner has a right to the use of the water of a natural stream in its natural condition without any obstruction or pollution of that water.

‑‑‑‑S. 14‑‑‑Disposal of wastes and effluents‑‑‑Every factory is required to make an effective arrangement for the disposal of waste and effluents in accordance with Rules framed under Factories Act, 1934 which usually require the effluents to be connected to the public drainage system with the prior approval of the Health Authorities‑‑‑Direct discharge of effluents by the factories into the rivers and seas would be actionable at the instance of those who are aggrieved by the pollution caused by such discharge.

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

‑‑‑‑S. 91(1)(2)‑‑‑Public nuisance‑‑‑Either the Advocate‑General or two or more persons having obtained the consent in writing of the Advocate‑General can institute a suit as a tort for declaration and injunction against public nuisance‑‑‑Section 91(2), C.P.C. cannot be deemed to limit or otherwise affect any right of a suit which may exist independently of its provision.

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

‑‑‑‑S. 133‑‑‑Removal of nuisance‑‑‑Magistrate can invoke the power under S.133, Cr.P.C. in the interest of the society in the preservation and improvement of environment.

Municipal Council, Ratlam v. Vardhichand and others AIR 1980 SC 1622 fol.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 5(2)‑‑‑Obedience to Constitution and law‑‑‑Nobody is above the Constitution, even Chief Executive of Pakistan has to work within the command of the Constitution.

Chaudhry Zahoor Elahi's case PLD 1975 SC 383 ref.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 9 & 14‑‑‑Dignity of man‑‑"Life"‑‑‑Meaning.

Shehla Zia's case PLD 1994 SC 693 quoted.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 189 & 190‑‑‑Judgment of Supreme Court is binding on each and every organ of the State‑‑‑Non‑observance by the State functionaries of the dictum laid down by the Supreme Court is violation of Art.189 of the Constitution.

(i) Jurisprudence‑---

‑‑‑‑ Law gives guidance to only law abiding citizens.

(j) Pakistan Environment Protection Act (XXXIV of 1997)‑‑‑

‑‑‑‑Preamble‑‑‑Enforcement of Pakistan Environment Protection Act, 1997‑‑Mere framing of law does not provide good results unless the law is strictly implemented in letter and spirit without fear, favour and nepotism‑‑Involvement and active participation of public is a must in the implementation of environmental programme for the success of pollution control‑‑‑Duty and obligation of the media to provide sufficient material with regard to the awareness of environmental programmes initiated by the Government or non‑Governmental Organisations, to the people of Pakistan‑‑Members of the Bar Associations and Bar Councils to educate the aggrieved persons to act against the offenders‑‑‑Awareness for and warning to the human beings not to disturb balance in any sphere provided by Holy Qur'an and history with regard to the hardwork done by Muslim Scientists for providing facilities to the people for the betterment of the human beings stated‑‑‑Development of modern days science and providing many facilities to the people discussed.

Pakistan Environment Protection‑ Act, 1997 cannot be enforced without the involvement of the public y and its active participation in the implementation of environmental programme as the same is a must for the success of the pollution control. It is the duty and obligation of the media to provide sufficient material with regard to the awareness of environmental programmes initiated by the Government or non‑Governmental Organizations to the people of Pakistan. The aggrieved person has two remedies; criminal as well as to file a suit for damages against the offenders. It is the duty of the Members of the Bar Associations and Bar Councils to educate the people and to file suits for damages against the offenders apart from the criminal proceedings against the offenders. In fact awareness has been given to the world 1400 years ago by Almighty Allah in the Holy Book of Qur'an it: "Sura Rehman" by warning the human beings not to disturb balance in any sphere otherwise destruction is a must. The Muslim Scientists had worked very hard to provide facilities to the people for the betterment of the human beings. After the downfall of the Muslims the western countries had taken over the field of science. The developed countries had made a mark in the modern field of science the developed countries had divided the water (if sea into two categories i.e. the high sea and the territorial water. The developed countries have made various experiments in the high sea which not only destroyed the fishes etc. in the sea but also polluted the water. With the passage of time polluted water touched the boundaries of the territorial water which, created pollution in the‑developed countries. Due to this fact they have passed the relevant laws. No doubt development of science has provided many facilities to the people but at the same time created lot of problems to the people on account of that development because the same has crossed the natural sphere and entered into the artificial sphere due to which pollution automatically entered in every sphere of the world including air, water etc.

Mere framing of law does not provide good results unless the law is strictly implemented in letter and spirit without fear, favour and nepotism Islam mandates that there shall not be any pollution in any manner even in the actions and speeches.

(k) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 5‑‑‑Obedience to law‑‑‑Implementation of law‑‑‑Mere framing of law does not provide good results unless the law is strictly implemented in letter and spirt without fear, favour and nepotism.

(l) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 5‑‑‑Obedience to law‑‑‑Persons who are in authority must have to obey the law.

(m) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 5‑‑‑Obedience to law‑‑‑Each and every citizen including the public functionaries are obliged and duty bound to act in accordance with law.

(n) Pakistan Environment Protection Act (XXXIV of 1997)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑ Pollution free environment for the health and safe living of citizens ‑‑‑Problem of pollution being more dangerous as compared to destruction by Hydrogen Bomb, it is proper and high time to implement the law in letter and spirit without discrimination as the life of human being is snore precious‑‑‑High Court provided suggestions for formulating the policy and relevant rules arid law to help the elimination of pollution.

The following suggestions are given for formulating the policy and relevant rules and law:‑‑

(i) The newly established industries are advised/compelled by the Authorities to install exhaustible devices and its success depends on the implementation and enforcement machinery provided under the provisions of Pakistan Environment Protection Act, 1997.

(ii) Public transport should be effective so that people may prefer to travel by public transport instead of private vehicles/cars.

(iii) Efforts should be made for utilization of solar energy which is in abundance in Pakistan.

(iv) Electric rail cars system should be introduced even in urban areas and also for long distances. Time schedule must be observed. Much less pollution results when people do not use their own vehicles/cars but travel on trains and airplanes which is known as Mass transportation. One bus that carries at least forty people does not produce much more pollution than vehicle/car with one person. Electric trains can be even cleaner, since trains also carry many more people than private small vehicles.

(v) Trees plantation should be patronized by the Government. For this purpose system of check and balance be introduced in Forest Department as well. Every year Forest Department announces that thousands of trees are planted. Due to lack of accountability the ground realities are entirely different.

(vi) Media should play its role to educate people of Pakistan to think and work for the nation and sacrifice their personal interest on the wellknown maxim that national interest is supreme qua individual.

(vii) Implement the law of the land without fear, favour and nepotism without any discrimination. '

(viii) At the time of granting permission for installation of new industry or licence or local permit of new vehicle, there must be coordination between all the functionaries under all the laws so that all the requirements under the law should be complied with at initial stages. There must be one window operation so that people should not suffer on account of inaction of public functionaries.

(ix) There should quarterly be one meeting of all the public functionaries of all the concerned departments for the purpose of review of ground realities so that future steps be taken on the basis of prevailing circumstances and also suggest qua amendment in rules, regulations and law to the competent authority/body The annual report should be published for information of the people and copy of the same be sent to Deputy Registrar (Judicial) of High Court.

(x) The problem of pollution is more dangerous as compared to destruction by Hydrogen Bomb. It is proper and high time to implement the law in letter and spirit without discrimination as the life of human being is more precious. In fact, every one is not saved from the attack of pollution. In this view of the matter each and every citizen, public functionary authority and body must discharge its responsibility to reduce this problem at any rate at any cost.

(xi) Try to speak truth to save the country from attack of all types of pollution so that food chain be maintained.

Authorities are, directed to implement the provisions of Pakistan Environment Protection Act, 1997 in letter and spirit and frame necessary rules and regulations and issue necessary Notifications under the provisions of the Act preferably within six months. Copy of the judgment be sent to concerned authorities who are directed to implement the provisions of the Act in letter and spirit preferably within six months. They are directed to submit report to Deputy Registrar (Judicial) of High Court within the stipulated period. Copy of the judgment was directed to be sent to the following authorities for necessary action and compliance:‑‑

(1) Chief Secretaries/Inspector‑Generals of Police of all the Provinces.

(2) Secretary Transport.

(3) Secretaries to the Chief Executives of all the Provinces.

(4) Principal Secretary to the Chief Executive of the Country.

Irfan Masood Sh. for Petitioner

Dr. A. Basit, Dr. Pervaiz Hassan, Sardar Shahid Iqbal and Sh. Muhammad Asad Ullah: Amicus curiae.

Sher Zaman Khan, Dy.A.‑G., M. Hanif Khatana, A.A.‑G., Mian Muzaffar Hussain, Kh. M.Afzal, Legal Advisors, Dr. Mumtaz Ali and Jawed Hassan for Respondents.

Date of hearing: 10th May, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 587 #

P L D 2002 Lahore 587

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MUHAMMAD MAHBOOB alias BOOBA ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.1815 and Murder Reference No.61/T of 2001, decided on 20th August, 2002. '

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 295‑A & 295‑C‑‑‑Apreciation of evidence‑‑‑Allegation of blasphemy involving death sentence‑‑‑Accused, a Muslim was alleged to have pasted Ishtihars at the main gate of a big mosque of the city which were allegedly in his own handwriting and allegedly contained derogatory remarks about Holy Prophet of Islam and intended to outrage feelings of any class by insulting its religion or religious beliefs‑‑‑Investigation of the case was entrusted to an official of the rank of an Assistant Sub‑Inspector of Police who had himself admitted about his own level of education in his statement and Deputy Superintendent of Police (Legal) was not produced to state as to who guided him in proposing that a case of blasphemy was made out against the accused‑‑‑Pencils and markers which were allegedly used for writing the alleged Ishtihars of blasphemy by the accused, purchased by someone other than the accused, were used as an incriminating evidence against the accused‑‑‑Testimony of prosecution witnesses, on analysis, could not be considered to be providing a standard of proof nor had such a quality to be believed and said witnesses had no sufficient knowledge about the tenets of Islam‑‑‑No one from the public other than the said two prosecution witnesses acid the complainant appeared to record their statements‑‑‑Accused, in his statement under S.342, Cr.P.C. had stated that his previous writings were secured by the police under pressure while he was in custody and said statement of the accused found support from the testimony of Investigating Officer‑‑‑Magistrate stated to have taken the samples of the writing of the accused was not produced and it appeared that he had attested the samples of the signatures which were produced by the Investigating Officer, who took away the file and introduced the same there‑‑‑Such quality of evidence could not be relied in a case as serious as the present one and reflected inefficiency, inaptitude, apathy and perfunctory working on the part of Police Officials and the way they collect evidence‑‑‑If the case of the prosecution was per se infirm, then going into a debate pertaining to Fiqah at the end of the Trial by Court was totally unnecessary, particularly when the Trial Court had taken no help from any juris consult or any Islamic Scholar having known credentials‑‑‑Nature of the accusations overwhelmed the Trial Court to such an extent that the Court became oblivious of the fact that the standard of proof for establishing such an accusation and as required, was missing‑‑Mere accusation should not have created a prejudice or a bias and the duty of the Court as ordained by the Holy Prophet was to ascertain the facts and the circumstances and look for the truth with all the perseverance at its command‑‑‑Accused had not confessed and had stated that he had not committed any offence and through his affidavit he had expressed his profound respect for the Holy Prophet in his own words‑‑‑Held, faithfully following the traditions of Holy Prophet and his directions and ordinances and while keeping in view the standard of proof brought on record and the statement of the accused both made under S.342, Cr.P.C. and through his affidavit, the present case was the one ridden with doubts‑‑‑Accused, in circumstances, was ordered to be acquitted of the charge and released forthwith if not required in any other case.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 295‑A, 295‑S & 295‑C‑‑‑ "Blasphemy ‑‑‑‑Definition ‑‑‑ Historical background of legislation of law on blasphemy in Pakistan.

Words and Phrases, Legally Defined by Buttetworths, Vol. l ref.

‑‑‑‑Ss. 295‑A, 295‑B & 295‑C‑‑‑Blasphemy‑‑‑Increase in the number of registration of blasphemy cases and element of mischief involved therein calls for extra care at the end of the Prosecuting Officers‑‑‑Failure, inefficiency and incompetence of the Investigation in handling the case of blasphemy‑‑‑Directions by High Court with regard to investigation and trial of cases of blasphemy‑‑‑High Court, in circumstances, directed the Inspector-General of Police of the Province to ensure that whenever such a case is registered, the same may be entrusted for purposes of investigation to a team of at least two Gazetted Investigating Officers preferably those conversant with the Islamic Jurisprudence and in case they themselves are not conversant with Islamic law, a scholar of known reputation and integrity may be added to the team and the team should then investigate as to whether an offence is committed or not and if the team comes to the conclusion that the offence is committed, the police may only then proceed further in the matter‑‑‑Trial in such a case be held by a Court presided over by a Judicial Officer who himself is not less than the rank of District and Sessions Judge.

Ever since the law' became more stringent, there has been an increase in the number of registration of the blasphemy cases. A report from a leading newspaper of Pakistan says that between 1948 and 1979, 11 cases of blasphemy were registered. Three cases were reported between the period 1979 and 1986. Forty four cases were registered between 1987 and 1999. In 2000, fifty two cases were registered and strangely 43 cases had been registered against the Muslims while 9 cases were registered against the non-Muslims. The report further states that this shows that ‑the law was being abused more blatantly by the Muslims against the Muslims to settle their scores. This was because the police would readily register such a case without checking the veracity of the facts and without taking proper guidance from any well‑known and unbiased religious scholar, would proceed to arrest an accused. That an Assistant Sub‑Inspector or a Moharrir was academically not competent to adjudge whether or not the circumstances constitute an act of blasphemy.

The subject blasphemy is under a lot of focus and people are expressing their opinions on the, subject particularly with respect to the accusations which can readily be made and the sentence which is prescribed in the offence. In another of its articles published in the said daily on the subject of blasphemy, the following are the remarks of the correspondent and are relevant:

"The trouble is 'that over the years bigotry and intolerance have made such deep inroads into our society that all three parties in the blasphemy cycle‑complainant, police officer, Judge‑‑think that they are doing the right thing and also earning divine favour into the bargain, when they are pressing charges under this law. This is zeal sanctioned by law and clothed in self‑righteousness. "

"But coming back to blasphemy, to seek it in acts of obvious insanity is to devalue both Islam and the notion of blasphemy. ":

The greatest blasphemy of all is a child going hungry, a child condemned to the slow death of starvation. The miscarriage of justice is blasphemy. Misgovernment is blasphemy. An unconscionable gap between rich and poor is blasphemy. Denial of treatment to the sick, denial of education to the child, are alike examples of blasphemy.

As in the recent past cases of such‑like nature are on the increase and element of mischief is also involved. This calls for extra care at the end of the Investigating Officers. Whereas, the failure, inefficiency and incompetence of the Investigating Officer in handling the present case with all its consequences have been noticed. Inspector‑General of Police, Punjab, Lahore is directed to ensure that whenever such a case is registered, it be entrusted for purposes of investigation to a team of at least two gazetted Investigating Officers preferably those conversant with the Islamic Jurisprudence and in case they themselves are not conversant with Islamic Law, a scholar of known reputation and integrity may he added to the team and this team should then investigate whether an offence is committed or not and if it comes to the conclusion that the offence is committed, the police may only then proceed further in the matter.

In view of the sensitiveness involved and the rise in the accusations of this type which can be easily made, besides what is proposed on the investigational side the trial in such‑like cases be held by a Court presided over by a Judicial Officer who himself is.not less than the rank of a District and Sessions Judge.

Daily Dawn of 18th July, 2002 and 26th July, 2002 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 295‑C‑‑‑Blasphemy‑‑‑Muslim cannot be attributed blasphemy because if he Commits blasphemy, an offence under S.295‑C, P.P.C, it will amount to apostasy and he becomes a, Murtid (a person who repudiates Islam after embracing it).

(e) Islamic Jurisprudence ‑‑‑

‑‑‑‑Crime and punishment‑‑‑Benefit of doubt ‑‑‑Sunnah ordains to remit punishment on account of doubt as long as one has ability; try to avoid Hudood wherever possible and wherever there is even a mild chance, release the accused for releasing by an error on the part of an Imam is better than punishing any one by error.

(f) Islamic Jurisprudence‑

‑‑‑‑ Blasphemy‑‑‑Injunctions of Sunnah with regard to the status of a person who commits blasphemy and denies the charge during the trial, or repents for his act, enlisted.

With regard to the status of a person who commits blasphemy and denies the charge during the trial, or repents for his act, the position of Islamic Law, regarding such a ease, is as under:‑‑

(a) Imam Ibn Taymiyah in his work Al‑Sarim Al‑Maslul has quoted viewpoint of Hadrat Abdullah Ibn Abbas that to abuse Holy Prophet (s.a.w.s.) is a kind of apostasy, and the apostate may be exempted from punishment if he repents. If he does not repent, then he will be sentenced to death.

(b) Ibn Abbas narrates that Holy Prophet (s.a.w.s:) had forgiven Hiber Ibn Al‑Aswad Ibn 'Abd al‑Muttalib who used to abuse and insult him. Holy Prophet (s.a.w.s.) accepted his apology and withdrew his order of sentencing such man to death.

(c) Walid Ibn Muslim narrates from Imam Malik and Aowzai that the one who swears at the Holy Prophet (s.a.w.s.), will be asked to make repentance, if he repents,, then he may be flogged but will not be slained.

(d) If a person denies the charge of committing blasphemy, or the words which be has used are open to different interpretations, such person cannot be awarded Hadd punishment on account of Shubbah (doubt) which has arisen in this case. This Shubbah is sufficient ground to avert Hadd punishment.

Al‑Sarim al‑Maslul, p.326 (Urdu translation by Ghulam Ahmad Hariri), p.587; Rasa'il Ibn Abdin, Vol. 1, p.346 and Ahkam al‑Qur'an by Abu Bakr Jassas, Vol, 3, p.85 ref.

Ali Abid Tahir for Appellant.

Safdar Tarar for the State.

Date of hearing: 26th June, 2002. .

PLD 2002 LAHORE HIGH COURT LAHORE 602 #

P L D 2002 Lahore 602

Before Iftikhar Hussain Chaudhary and Muhammad Farrukh Mahmud, JJ

THE STATE‑‑‑Appellant

Versus

MAQSOOD AHMAD and another ‑‑‑Respondents

Criminal Appeal No.35 of 1999, heard on 27th May, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/149, 337‑F(vi)/149, 337‑F(ii)/149, 337‑F(iii)/149, 324/149 & 395‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑‑Appeal against acquittal‑‑‑Occurrence had taken place at night time in the house adjacent to the house of the complainant‑‑‑Nobody was named as an accused in the F.I.K.‑‑‑Complainant, however, during his statement before the Court had made dishonest improvements and assigned a specific role to both the accused and introduced a witness, giving a totally different version from that given in the F.I.R. ‑‑‑Prosecution witnesses had contradicted each other on material points‑‑‑Eye‑witnesses having not said a single word about the identification parade, testimony of the Magistrate qua the same was of no value‑‑‑Crime empties having not been shown to have been fired from the weapon recovered from the accused, the recoveries did not advance the prosecution case, which even otherwise had been made in violation of S.103, Cr.P.C.‑‑‑Extra‑judicial confession allegedly made by the accused before the son of the complainant after 4‑1/2 months of the occurrence was not believable, which was not even supported by any independent evidence‑‑Medical evidence had shown only that the deceased and the injured witnesses had received fire‑arm injuries and nothing else‑‑‑No misreading or non‑reading of evidence by the Trial Court could be pointed out‑‑‑Reasons recorded by the Trial Court for acquittal of accused were neither perverse nor arbitrary‑‑‑Appeal against acquittal of accused was dismissed in circumstances.

Sh. Muhammad Raheem for Appellant.

Ch. Faqir Muhammad for Respondent No. 1.

Muhammad Zafar Khan Sial for Respondent No.2.

Date of hearing: 27th May, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 607 #

P L D 2002 Lahore 607

Before Tassaduq Hussain Jilani and Mian Saqib Nisar, JJ

JAVED TARIQ KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 722 of 2002, heard on 4th July, 2002.

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

‑‑‑‑Ss. 15, 9(c), 25 & 32‑‑‑Criminal Procedure Code (V of 1898), S. 63‑‑Accused had made an agreement with the Punjab Cooperative Board for Liquidation agreeing to clear the entire outstanding loan of Rs.6,50,26,326 in six instalments ending on 31‑8‑2002, which was not a plea‑bargaining agreement in stricto senso as contemplated in S.25 of NAB Ordinance‑‑‑Said agreement, inter alia, stipulated re‑investigation and re‑arrest in the event of its violation‑‑‑Since final report under S.173, Cr.P.C. had not been submitted before the Accountability Court, the release of accused for all intents and purposes was a discharge under S.63, Cr.P.C. amounting to release from custody simpliciter and not amounting to cancellation of the case or stopping of re‑investigation‑‑‑Impugned order had two dimensions, one administrative and the other judicial‑‑‑Release of accused had reflected the former dimension whereas his disqualification under S. 15 of the NAB Ordinance had reflected the latter dimension‑‑‑Court could not have passed such a judicial order, firstly because it was not seized of a Reference against the accused and secondly the accused had not deposited any defaulted loan or asset with the NAB in terms of S.25 of the NAB Ordinance‑‑‑Said order was a final order amenable to the appellate jurisdiction of High Court under S.32 of the NAB Ordinance, 1999‑‑‑Impugned order had been passed without hearing the accused who had‑been condemned unheard‑‑‑Application filed by the Chairman NAB before the Accountability Court for the release of accused was only a request for his release under S.9(c) of the NAB Ordinance as it neither spoke of a plea bargain agreement between the accused and the NAB Authorities, nor it requested for his disqualification under S.15 of the said Ordinance‑‑‑Impugned orders insofar as they disqualified the accused in terms of S.25 of the NAB Ordinance, 1999, were set aside in circumstances.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Parul Bala Sen Gupta v. The State AIR 1937 Cal. 379; Din Muhammad Shakir alias D.M. Shakir v. DSP, Ichhra, Lahore PLD 1977 Lah. 180; Mst. Kausar Bibi v. Deputy Inspector‑General of Police, 'Crimes Branch, Punjab, Lahore and 2 others 1996 PCr.LJ 124; Habib v. The State 1983 .SCMR 370; Ashiq Hussain v. Sessions Judge, Lodharn and 3 others PLD 2001 Lah. 271 and Muhammad Waseem v. Additional. Sessions Judge, Dera Ghazi Khan and 3 others 1985 PCr. LJ 224 ref.

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

‑‑‑S. 9(c)‑‑‑Release of accused‑‑‑Chairman NAB can release an accused under S.9(c) of the NAB Ordinance without intervention of the Court provided an interim or final report under S.173, Cr.P.C. has not been filed against him in the Trial Court, he has not deposited any dues or asset with the NAB and he has not signed any agreement of plea bargain with it.

‑‑‑‑Ss. 9(c) & 25‑‑‑Release of accused ‑‑‑Conditions and consequences‑‑Release of an accused under S.9(c) and S.25 of the NAB Ordinance stipulates two distinct conditions precedent which have distinct consequences the former being a release or discharge simpliciter and the latter visualizing consequence of disqualification.

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

‑‑‑‑S. 9(c)‑‑‑Criminal Procedure Code (V of 1898), S.63‑‑‑Release of accused‑‑‑Effect‑‑‑Release of an accused under S.9(c) of the NAB Ordinance would be a discharge under S.63, Cr.P.C. which would not terminate or cancel the investigation against him and he can always be associated with the investigation by the concerned Investigating Agency at any stage without permission of the Court‑‑‑Investigating Agency, if however, at a subsequent stage needs the custody of the said accused, he can be arrested and taken into custody with the permission of the Court.

Khawaja Haris Ahmad and Pevez I. Mir for Appellant.

Ahmer Bilal Soofi, Prosecutor‑General, Accountability Bureau for the State.

Date of hearing: 4th July, 2002.

PLD 2002 LAHORE HIGH COURT LAHORE 619 #

P L D 2002 Lahore 619

Before Iftikhar Hussain Chaudhry, CJ

MIAN KHAN and others‑‑‑Petitioners

Versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB and others‑‑Respondents

Writ Petitions No.17513, 17591, 17590, 17583, 17535 of 2002, decided on 26th September, 2002:

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 551, 154, 22‑A & 22‑B‑‑‑Police Order‑ (22 of 2002), Art.35‑‑‑Police Rules, 1934‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Petitioners, dissatisfied with the investigation being conducted bit the local police seeking, through Constitutional petitions, transfer of investigation alleging harassment being caused by police to them and praying for issuance of directions to local police for registration of criminal case against a number of persons‑‑‑Adjudication of such petitions‑‑‑Procedure‑‑‑Registration of criminal case, transfer of investigation from one investigating officer to another or issuance of a restraint order against the police officer not to cause harassment to a citizen, essentially are administrative functions which are to be carried out by the police functionaries concerned or higher police officers in exercise of powers under S.551, Cr.P.C. and supervisory powers vesting in them under Police Rules, 1934 or Police Order, 2002‑‑‑District Nazim has also the power to issue necessary direction to police to carry out its functions in accordance with provisions of the Police Order, 2002‑‑‑Directions which have been sought for by the petitioners, in the present case, through constitutional petitions essentially relate to administrative duties to be performed by the public functionaries and adjudication of rights in the conventional sense of the term by a superior Court is not required or involved in the process‑‑‑High Court being the apex Court under the Criminal Procedure Code, 1898 has plenary powers on administrative and adjudicatory side to oversee the functioning of all public functionaries who are required to exercise any power or to perform any function under provisions of Cr.P.C. to ensure strict enforcement of and compliance with various provisions of law relating to registration of cases, investigation thereof and ancillary matters‑‑‑High Court is fully empowered to issue an appropriate direction to effectuate the mandate and writ of law‑‑‑Subordinate functionaries can also be called upon to perform such functions as the High Court might require‑‑‑Sessions Judges, Additional Sessions Judges and Magistrates and police/public functionaries can be deputed by High Court to ensure proper administration of justice‑‑‑Sessions Judges, Additional Sessions Judges and the Magistrates, even otherwise, are empowered under S.22‑A, Cr.P.C. and obliged under S.22‑B, Cr.P.C. to carry out their functions with regard to correct working of police in accordance with law‑‑Registration and proper investigation of criminal case can be directed by the Sessions Judges, Additional Sessions Judges and the Magistrates‑‑‑Sessions Judges, Additional Sessions Judges and Magistrates can competently call upon the police functionaries to desist from causing harassment to people and to remain within the limits of law‑‑‑Sessions Judges, Additional Sessions Judges and Magistrates have ample power in this regard and they have to exercise the same in aid of justice and to alleviate the miseries of the common man‑‑‑Lower judiciary, which is vested with enough statutory powers in this regard, has to play a more dynamic role in the criminal justice system, and for removal of any difficulties, any order passed by the Sessions Judges, Additional Sessions Judges in exercise of powers under S.22‑A & 22‑B, Cr.P.C. pursuant to directions given by the High Court, would have full sanction of the plenary powers of the High Court and police would be under an obligation to obey the orders passed by the Sessions Judges, Additional Sessions Judges or the Magistrates‑‑Directions, issuance of which have been sought for through the constitutional petitions, in the present case, are essentially administrative in nature, and do not require adjudication by High Court and only such intervention which is forensic in nature, is required which can be resorted to in chamber by the Judges of the High Court‑‑‑Office of the High Court has been directed to place similar petitions before the Judges in chamber only and there is no requirement to place the matter before the Judges in Court‑‑‑Judge of the High Court, in an appropriate case, keeping in view facts and circumstances, may hear the case in open court and hearing of the counsel at great length in chamber would not be necessary which is dispensed with from now on‑‑High Court, while disposing of the constitutional petitions directed the petitioners in the present case, to produce a copy of the petition as well as the order of the High Court (in the present case) before the Sessions Judge of the District who shall look into the grievance of the petitioner, summon the local Station House Officer and issue necessary directions to him with regard to registration of case or for holding an inquiry under section 157, Cr.P.C. or for carrying out proper investigation of the case‑‑‑Sessions Judge can entrust the matter to any Additional Sessions Judge or Judicial Ilaqa Magistrate of the police station concerned to do the needful, as well‑‑‑Formal inquiry and preparation of record is not required‑‑‑If needed, an order in writing can be given to the police‑‑Similarly if the Sessions Judge is satisfied about grievance of the petitioner with regard to defective, evasive or less than honest investigation, he shall have the power to transfer investigation of the case to any other police officer within the District‑‑‑Directions in this regard can be given to the District Police Officer to transfer the investigation‑‑Sessions Judge, the Additional Sessions Judge or the Magistrate would also call upon the respondent police officer to remain within the limits of law and strictly abide by the law and procedure and not to cause any harassment to any of the petitioners (or any citizen) or other members of their families‑‑Provisions of the. Police Order, kept in view while exercising powers in this regard‑‑‑If aggrieved person approaches the Sessions Judge with any grievance of similar kind the Sessions Judge, Additional Session Judge, or Magistrate shall issue necessary directions to police even in the absence of any direction from the High Court‑‑‑District Nazim can also be advised to come to the aid of aggrieved party and to exercise powers under Art. 35 of the Police Order, 2002‑‑‑In case the Sessions Judge, the Additional Sessions Judge or the Judicial Magistrate felt that they, keeping in view the nature of the controversy between the parties, are unable to give requisite relief to the petitioner before them, they shall make a reference to the High Court so that effective and speedy relief, is given to 'the citizens and necessary penal action is taken against he delinquent police functionary‑‑‑Copy of the order of the High Court in the present case, has been ordered to be remitted to Additional Registrars of each of the Bench of High Court for being placed before the Senior Judges, so that a uniform policy is followed at the Principal Seat as well as the Benches‑‑Copies of the order shall also be sent to all the Sessions Judges of the Province for information and due compliance.

Ch. Abdul Waheed, Advocate.

Mrs. Shaista Qaiser, Advocate.

Mian Muhammad Aslam, Advocate.

Muhammad Faisal Malik, Advocate.

Rai Bashir Ahmad, Advocate.

Maqbool Elahi Malik, Advocate‑General Punjab with Ch. Nasim Sabir Additional Advocate‑General Punjab and Sh. Khalid Habib, Advocate.

Peshawar High Court

PLD 2002 PESHAWAR HIGH COURT 1 #

P L D 2002 Peshawar 1

Before Sardar Muhammad Raza, C J

SHER BAZ KHAN‑‑‑‑Appellant

Versus

Mir ADAM KHAN‑‑‑Respondent

Regular First Appeal No. 11 of 1999, decided on 28th March, 2001.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Art. 72‑‑‑Civil Procedure Code (V of 1908), O.XXXVII, R.2‑‑‑Recovery suit on the basis of promissory note‑‑‑Limitation‑‑‑Such suit is to be filed within three years‑‑‑Suit filed after the prescribed period is time-barred.

(b) Limitation Act (IX of 1908) ‑‑

‑‑‑S. 19‑‑‑Acknowledgment‑‑‑Acknowledgment giving fresh start to the period of limitation‑‑‑Effect‑‑‑Such acknowledgment must be made within the period of limitation.

‑‑‑‑S. 12‑‑‑Limitation Act (IX of 1908), Art. 72 & S.19‑‑‑Specific performance of agreement‑‑‑Acknowledgment giving fresh start to the period of limitation‑‑‑Deed on the basis of which the suit was filed was executed on 28‑8‑1992 whereas the suit was filed on 11‑4‑1997‑‑‑To bring the suit within limitation the plaintiff relied on an acknowledgement receipt duly made on 24‑5‑1996‑‑Defendant contended that the suit was time-barred‑-‑Validity‑‑‑Where the deed was executed on 28‑8‑1992, the suit was to be brought on or before 28‑8‑1995‑‑‑Acknowledgment alleged by the plaintiff was much beyond the initial period of limitation and the plaintiff could not be benefited from the same‑‑‑Suit qua the money claim was barred by time accordingly.

(d) Negotiable Instruments Act (XXVI of 1881)‑‑

‑‑‑S. 13‑‑‑Payment on the basis of promissory note‑‑‑Proof‑‑‑Making of payment in connection with a promissory note does not require to be proved and it is sufficient if the execution of promissory note is either proved or admitted.

(e) Specific Relief Act (I of 1877)‑‑

‑‑‑‑Ss. 12 & 42‑‑‑Form of suit‑‑‑Suit for declaration instead of suit for specific performance of agreement‑‑‑Document relied upon by the plaintiff had two separate aspects and they were joined together‑‑‑On one side the document was relied on as promissory note whereas on the other side the same was treated as agreement‑‑‑Plaintiff filed suit for declaration for the recovery of certain amount on the basis of the document‑‑‑Validity‑‑‑Such mis-joinder of claims given in the deed could provide no benefit to plaintiff because portion of the deed qua the agreement the witnesses were necessary and so associated while claim qua the money in the deed witnesses were not necessary but still they were there‑‑‑Plaintiff in the present case himself had damaged the quality of the deed as promissory note‑‑‑Second portion of the deed, prima facie, indicated the same to be an agreement to sell, for the executant undertook to sell certain portion of the land‑‑‑Plaintiff ought to have had brought a suit for specific performance of contract for the portion relating to agreement to sell‑‑‑Suit for declaration was hot maintainable in circumstances.

(f) Qanun‑e‑Shahadat (10 of 1984)‑‑

‑‑‑‑Arts. 76 & 77‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Document‑‑Proof‑‑‑Failure to produce primary evidence‑‑‑Production of secondary evidence‑‑‑Permission of Trial Court for recording of secondary evidence was not available on record‑‑‑Original stamp vendor was dead and to prove the stamp paper on which the deed was written, the plaintiff produced son‑in-law of the stamp vendor as secondary evidence‑‑‑Validity‑‑‑No secondary evidence could be produced unless allowed by the Court‑‑‑Where entry on the stamp paper was non‑existent in the register of the stamp vendor produced in the Trial Court and it was not proved that the Court had allowed to produce the secondary evidence, Trial Court had rightly dismissed the suit.

Malik Muhammad Bashir for Appellant

Syed War Abbas Zaidi for Respondent

Dates of hearing: 27th and 28th March, 2001

PLD 2002 PESHAWAR HIGH COURT 6 #

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PLD 2002 PESHAWAR HIGH COURT 21 #

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PLD 2002 PESHAWAR HIGH COURT 30 #

P L D 2002 Peshawar 30

Before Sardar Muhammad Raza, CJ

Mst. SAMINA GUL ‑‑‑ Petitioner

Versus

ZAINAB DIN‑‑‑Respondent

Transfer Application No. 24 of 2001, decided on 12th October, 2001.

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

‑‑‑‑S. 23(3)‑‑‑Transfer of civil suit from a Court subordinate to one High Court to a Court subordinate to another High Court‑‑‑High Court to which application for transfer lies‑‑‑High Court could transfer a civil suit from its jurisdiction to the jurisdiction of another High Court, but for such transfer application would lie in the High Court from whose jurisdiction the civil suit is sought td be transferred.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑

‑‑‑‑S. 25‑A‑‑‑Civil Procedure Code (V of 1908), S.23(3)‑‑‑Constitution of Pakistan (1973), Arts. 186‑A & 203‑‑‑Transfer of family suit from a Court subordinate to one High Court to a Court subordinate to another High Court‑‑‑Jurisdiction to transfer such‑like cases would vest in Supreme Court, because High Court could order the transfer of family cases, when both the Courts were located within its own territorial jurisdiction‑‑‑Provisions of S.23(3), C.P.C. would not be applicable, Civil Procedure Code, 1908 being a Federal Law and West Pakistan Family Courts Act, 1964, a Provincial Law. [Mst. Bakht Shada v. Mansab Dar PLD 1995 Lah. 198 dissented from].

Mst. Bakht Shada v. Mansab Dar PLD 1995 Lah. 198 dissented from.

‑‑‑‑Once the very jurisdiction is lacking, it cannot be assumed on any ground whatsoever.

(d) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑Ss. 5, Sched. & 25‑A‑‑‑Civil Procedure Code (V of 1908), S.23(3)‑‑‑Suit for return of marriage gifts‑‑‑Transfer of such suit to (N.W.F.P.) from Civil Court/Family Court (Sindh)‑‑‑Schedule to West Pakistan Family Courts Act, 1964 did not include marriage gifts to be the subject‑matter of dispute with reference to S.5 of the said Act‑‑‑Suit at (Sindh) had to be a civil suit and in case it was so, the jurisdiction to transfer it under S.23(3), C.P.C. would vest in Sindh High Court.

Saleh Mehmood Awan for Petitioner.

Sher Bahadur Khan for Respondent.

Date of hearing: 12th October, 2001.

PLD 2002 PESHAWAR HIGH COURT 33 #

P L D 2002 Peshawar 33

Before Qazi Ehsanullah Qureshi and Ejaz Afzal Khan, JJ

GOHAR ZAMAN (CORRECT NAME GOHAR MUNIR)---Petitioner

Versus

THE STATE-----Respondent

Criminal Bail Application No.185 of 2001, decided on 14th November, 2001.

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

----S. 497---West Pakistan Arms Ordinance (XX of 1965), Ss. 13/14--Surrender of Illicit Arms Act (XXI of 1991), Ss.2(iv), (v) & 7---Bail, grant of---Illicit arms and ammunition allegedly recovered from the house of the accused did not fall within the ambit of S.2(iv) of Surrender of Illicit Arms Act, 1991, but instead those were the type which would fall within the purview of S.2(v) of the said Act which was punishable with imprisonment which could extend to fourteen years---Extreme punishment could only be awarded when the antecedents of the accused so justified---Accused, thus, could not be awarded an extreme penalty in the absence of any such antecedents---Accused was allowed bail.

Dost Muhammad Khan for Petitioner.

Saleemullah Ranuani, State Counsel for the State.

Date of hearing: 13th November, 2001.

PLD 2002 PESHAWAR HIGH COURT 34 #

P L D 2002 Peshawar 34

Before Abdur Rauf Khan Lughmani and Eja1z Afzal Khan, JJ

QAYYUM NAWAZ and 128 others---Petitioners

Versus

THE STATE and 5 others---Respondents

Writ Petition No. 146 of 1999, decided on 28th November, 2001.

(a) North-West Frontier Province Prevention of Gambling Ordinance (V of 1978)----

----Ss. 5, 6 & 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R. ---Requirement of law was that in gambling case only the Magistrate First Class could supervise the raid and conduct the search and could require the assistance of the local police, but in the present case raid was conducted by S.H.O.---Requirements of law having not been complied with, F.I.R. was quashed.

(b) Practice and procedure----

--When an action was required to the taken in a particular manner, that could only be taken in that way.

Dost Muhammad Khan for Petitioners.

Shaukat Hayat Khan Khakwani, Dy. A.-G.

S. Zafar Abbas Zaidi for Respondents Nos. 2 and 5.

Date of hearing: 28th November, 2001.

PLD 2002 PESHAWAR HIGH COURT 36 #

P L D 2002 Peshawar 36

Before Shakirullah Jan and Muhammad Qaim Jan Khan, JJ

ISMAIL KHAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.73 of 1998, decided on 30th October, 2001

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

----S. 302(b)---Appreciation of evidence---F.I.R. had been recorded after preliminary investigation by police---Motive for the occurrence was not established---Prosecution case was no supported by ocular, medical and circumstantial evidence--- Neither any empty was recovered from the place of incident nor any bullet marks were found on the outer wall of the complainant's house---Delay of two hours and 25 minutes in lodging the F.I.R. was not explained though the police station was at a short distance from place of occurrence and conveyance was available to complainant--Statements of the complainant and the Investigating Officer suffered from a lot of contradictions---Complainant, who was the sole eye-witness in the case, was either not present at the time of occurrence or he had not told the truth---Same evidence had been relied upon by the Trial Court for acquitting the co-accused and convicting the accused ---Abscondence of accused alone was not a strong ground for sustaining his conviction---Accused was acquitted in circumstances.

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

----S. 302(b)---Appreciation of evidence ---Abscondence---Abscondence of accused alone does not furnish a strong ground for sustaining his conviction.

Dost Muhammad Khan for Appellant. Shaukat Hayat Khakwani, Dy. A.-G. for the State. Gohar Zaman Khan Kundi for the Complainant.

Date of hearing: 30th October, 2001.

PLD 2002 PESHAWAR HIGH COURT 42 #

P L D 2002 Peshawar 42

Before Qazi Ehsanullah Qureshi and Ejaz Afzal Khan, JJ

MEHAR DIL KHAN WAZIR alias BARGAIN‑‑‑Petitioner

versus

IBRAHIM KHAN and 3 others‑‑‑Respondents

Civil Miscellaneous No.45 of 2001 with Writ Petition No.53 of 2001(M), decided on 16th January, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 247(7)‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Car allegedly snatched from petitioner by respondent was recovered from respondent by Assistant Political Agent, but its custody was not given to the petitioner‑‑‑Petitioner tiled Constitutional petition, maintainability of which .was objected to under Art.247(7), .Constitution of Pakistan (1973) contending that matter involving factual controversy could not be settled in Constitutional jurisdiction and that High Court lacked jurisdiction to the same as the matter pertained to Tribal Area‑‑‑Validity‑‑‑Car in question was registered in settled area, agreement of sale had taken place in settled area and was being played as taxi in the settled area‑‑‑Record had shown that car was brought to North Waziristan Agency from District Lakki Marwat‑-‑Complainant's applications made to Commissioner Bannu, all in chain had disclosed one and the same story‑‑-Established position was that sale transaction of car in question, the agreement of sale and purchase of stamp papers for agreement all pertained to District Lakki Marwat which factors were not looked into by the Political Authorities‑‑‑Case, in circumstances, was fit to be interfered with by High Court especially when Political Authorities had shut their eyes, avoided action against hardened criminals and culprits being fully known to them‑‑‑Authorities instead of crushing and curbing the criminal elements, rather encouraged, protected and harboured them‑‑‑High Court accepting Constitutional petition directed Political Agent to return car in question forthwith to the petitioner on Superdari on his furnishing security bond‑‑‑Petitioner might file criminal complaint against private respondent, if so desired.

Liaqat Ali Khan Marwaf for Petitioner.

Muhammad Wahid Anjum and Shaukat Hayat Khakwani, Dy.A.‑G. alongwith Muhammad Iqbal Khattak for Respondent No.2.

Dates of hearing: 15th land 16th January, 2002.

PLD 2002 PESHAWAR HIGH COURT 45 #

P L D 2002 Peshawar 45

Before Shahzad Akbar Khan, J

MUHAMMAD ZAMAN and others‑‑‑Petitioners

versus

SHAH WAZIR KHAN‑‑‑Respondent

Civil Revisions Nos.440 to 447 of 2001, decided on 24th September, 2001.

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

‑‑‑‑O. VII, R.11‑‑‑Word 'it'‑‑‑Connotation‑‑‑Rejection of plaint‑‑‑Material to be considered by Trial Court‑‑‑Scope‑‑‑Word 'it' confines the scope of reference only to the plaint and nothing else‑‑‑In order to invoke the applicability of O.VII, R.11(a), C.P.C.‑the Court has to look into the contents of the plaint only and has to examine the plaint on its face value‑‑‑If the plaint by itself indicates any infirmity enumerated in cls. (a) to (d) of R.11 of O.VII, C:P.C. then the Court should order the rejection of the plaint as the fruitless litigation requires to be buried at its inception to avoid the wastage of time of Courts a9d unnecessary harassment to the opposite‑party.

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

‑‑‑‑O. VII, R.11‑‑‑Rejection of plaint‑‑‑Power of Trial Court‑‑‑Raising of plausible defence‑‑‑Effect‑‑‑Resort to the power of rejecting a plaint be made only if the Court had co, to the irresistible conclusion, within the parameters of O.VII, R.II, IC.P.C., that even if all allegations made in the plaint had been proved, plaintiff was not entitled to any relief whatsoever‑‑‑If the averments contained to a written statement, being rival pleadings, engendered any controversy then the same had become issue ,between the parties which could only be resolved after recording and evaluating the evidence of the combating parties adduced at the trial‑‑‑Where the defendant had filed a written statement and pleas raised by him in the nature of defence in suit could not be looked into while considering application for rejection of the plaint.

‑‑‑‑S. 115 & O. VII, R. 11‑‑‑Rejection of plaint‑‑‑Written statement was filed‑‑‑Issues generated by the rival pleadings were framed‑‑‑List of witnesses had also been filed and the case was posted for the evidence of the plaintiffs‑‑‑Trial Court on the application under O.VII, R.11, C.P.C. filed by the defendant, rejected the plain` and the order passed by the Trial Court was maintained by the Appellate Court‑‑‑Validity‑‑‑Where the plaint disclosed any cause of action, The invocation of O.VII, R.11, C.P.C. was uncalled for‑‑‑Orders passed by both the Courts below were set aside and the case was remanded for decision on merits.

Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR 459; Abdul Rahim v. Karachi Development Authority 1988 CLC 1207 and Alam Ali and another v. District Judge, Multan and 3 others PLD 1983 Lah. 278 ref.

Mazullah Barkandi for Petitioners.

PLD 2002 PESHAWAR HIGH COURT 50 #

P L D 2002 Peshawar 50

Before Abdul Rauf Khan Lughmani and Shahzad Akbar Khan, JJ

MUHAMMAD SHAFIULLAH---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Parliamentary Affairs

Division, Pak Secretariat, Islamabad and 5 others---Respondents

Writ Petition No.48 of 1999, decided on 31st May, 2000.

(a) Land Reforms Regulation 1972 (M.L.R.115)---

----Paras. 7 & 8---Land Reforms Act (II of 1977), Ss.2(1), 27 & 28--Proprieties, verification of---Powers of Federal Land Commission---Opening of matter after 11 years---Validity---Federal Land Commission, or the Inspection Team, or the Provincial Land Commission, in exercise of powers under the Land Reforms Act, 1977, could go into the proprieties of the orders of the Commission, including the decisions taken under Land Reforms Regulation, 1972---Land Commissioner had wrongly observed that at belated stage after 11 years the matter could not be reopened---Such stand of the Land Commissioner was refuted by the provisions of the Land Reforms Act, 1977, itself and such conclusion drawn by the Land Commissioner was nullity in law.

(b) Practice and procedure-

---- Doing of a thing---Principle---Thing required to be done in a particular manner must be done in that particular manner or not at all and doing something which is in conflict with that would be not only unlawful but mala fide, thereby rendering same as without jurisdiction.

----para. 7(1)(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Calculating holdings of declarant---Mutation by declarant in favour of legal heir---Setting aside of such mutation---Petitioner was son of the declarant and the disputed land was transferred in his favour---Land Commissioner declared the mutation as invalid for not fulfilling the conditions of para.7(1)(b) of Land Reforms Regulation, 1972, and the land so mutated in the name of the petitioner was included in the holdings of the declarant---Validity---Once a transaction was made in favour of legal heir by a declarant within the stipulated period, under the second proviso to para.7(1)(b) of the Land Reforms Regulation, 1972, it was not open to any scrutiny and such transaction was fully safeguarded by the law itself---Land Commissioner had wrongly found the transaction/alienation in favour of the petitioner, as void on the ground that it did not fulfil the requirements of para.7(1)(b) of Land Reforms Regulation, 1972---Order passed by the Land Commissioner was against the mandatory provisions ousting his jurisdiction in respect of any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift or otherwise made by a person in favour of heirs---Transaction made by the declarant in favour of the petitioner was a valid transaction and the land transferred to the petitioner was no longer available to fall part of the holding of the declarant---Chief Land Commissioner had correctly directed the Land Commissioner, to reexamine the matter under suo motu revisional jurisdiction, which did not involve any question of limitation, to refuse such an exercise on the only and lonely point at a belated stage' particularly when the wrong assumption of jurisdiction had been pointed out by the functionary of the Land Commissioner---Land of the petitioner was wrongly put in the pool of the declarant for calculating his holdings for the purpose of implementation of Land Reforms Regulation, 1972, and Law Reforms Act, 1977---Order passed by the Authorities was without jurisdiction, ineffective on the rights of the petitioner and same was set aside---Constitutional petition was allowed accordingly.

(d) Constitution of Pakistan (1973)--

----Art.199---Constitutional petition---Audi alteram partem---Applicability--Duty of Court---Minority of petitioner---Throughout the proceedings, the petitioner was kept aloof due to his minority, while the law addressed more to look after the interest of minors and even the Courts/Authorities deciding/adjudicating upon a matter where the interest of minor was involved, were supposed to be more cautious of the situation---Petitioner was condemned unheard and the principle of audi alteram partem was attracted in circumstances.

(e) Legislation------

----Legislative functionaries---Promulgation of laws ---Object--Law/Regulation is/are promulgated for the betterment of the society as a whole in changed environments, at the same time it fully acknowledges the obligations/rights, both collectively and individually, of the subject where there is a right there is duty.

Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others 1993 SCMR 1905 ref.

(f) Constitution of Pakistan (1973)--

----Art. 199---Constitutional petition---Principle of laches---Relief---Where delay is reasonable, relief cannot be denied on the ground of laches---If such delay is unreasonable ordinarily relief can be denied---Where the order is totally without jurisdiction the superior Court has to come to the rescue of the person aggrieved to give him appropriate relief irrespective of long delay upon the principle of laches---Similarly where the circumstances suggest that action of a functionary of a State on the one hand acting without jurisdiction is tantamount to perpetuating injustice and amounts to continuous wrong the question of laches need not be given any weight.

Halbury's Laws of England, Vol. 16, 4th Edn., para.1477; Haji Ghulam Qadir v. Custodian of Evacuee Property 1984 CLC 204 and S. Sharif Ahmed Hashmi v. The Chairman, Screening Committee, Lahore 1980 SCMR 711 ref.

(g) Constitution of Pakistan (1973)--

----Art. 199---Constitutional petition ---Laches, plea of---Failure to raise such plea at the time of filing of written statement---Effect---Where the respondents failed to specifically agitate the question of laches while submitting their written statement, High Court declined to allow the respondents to agitate or press the point of laches, which, if otherwise allowed to sustain, would result in perpetuating injustice---Plea of laches was not entertained in circumstances.

Arsala Khan v. Province of Sindh through Secretary, Government of Sindh, Karachi and 3 others PLD 1976 Kar. 848; Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 and Mst. Zainab Bibi and 3 others v. Commissioner, Lahore Division, Lahore and 3 others PLD 1976 Lah. 820 ref.

(h) Maxim---

Ignorantia praesumitur ubi scientia non probatur" (ignorance is presumed where knowledge is not proved) and "lex neminem cogit ostendere qued nescire praesumitur" (law compels no one to divulge that which he is presumed not to know)---Applicability---Where the petitioner was minor at the time when all the actions had been taken against him, such actions would be presumed to have been taken without his knowledge---Minor was not supposed nor presumed to be in the knowledge of all those actions---Maxims "ignorantia praesumitur ubi scientia non probatur" (ignorance is presumed where knowledge is not proved) and "lex neminem cogit ostendere qued nescire praesumitur" (law compels no one to divulge that which he is presumed not to know) were applicable in circumstances.

(i) Words and phrases--

----"Laches", meaning.

Halsbury's Laws of England, 4th Edn., Vol. 16, para. 1477; C.J.S Vol. 30-A, para. 112 and C.J.S., para. 116 ref.

(j) Duty of Court---

---- Interest of minor---Courts/Authorities while deciding a matter involving interest of minor are supposed to be more cautious of the situation.

(k) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition ---Laches---Actions of public functionaries mala fide and taken at the back of aggrieved person---Question of laches in such circumstances would not be relevant.

Mst. Zainab Bibi and 3 others v. Commissioner, Lahore Division, Lahore and 3 others PLD 1976 Lah. 820 ref.

Rustam Khan Kundi and Saleem Ullah Khan Ranazad for Petitioner.

Sardar Allah Nawaz Khan Sadozai for Respondents Nos. 1 and 2.

Syed Saeed Hassan Sherazi, A.A. -G. far Respondents Nos. 3 to 6.

Date of hearing; 31st May, 2000.

PLD 2002 PESHAWAR HIGH COURT 65 #

P L D 2002 Peshawar 65

Before Khalida Rachid and Shahzad Akbar Khan, JJ

GULBAR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.47 of 1998, decided on 27th June, 2001

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑(302‑‑‑Punishment of Qatl‑i‑Amd‑‑‑Historical background leading to the introduction and embodiment of the fundamental principles of Islamic Jurisprudence in the Administration of Criminal Justice in Pakistan.

An epitomised sketch of the historical background which led to the introduction and embodiment of the fundamental‑ principles of Islamic Jurisprudence in the Administration of Criminal Justice in Pakistan is as follows:

Amendments were made in sections 299 to 338 contained in Chapter XVI of the Pakistan Penal Code. The necessity for the amendment of the abovementioned law arose when the Shariat Bench of Pehsawar High Court in the case of Gul Hassan Khan v. Government of Pakistan and another (PLD 1980 Pesh. 1) examined in detail section 302 and other sections of Chapter XVI of P.P.C. in connection with the offences relating to human body and held that the penalties prescribed in the said Chapter were not in accordance with Injunctions of Islam. The judgment of the Peshawar High Court referred above, carrying support of the Federal Shariat Court through judgment reported as PLD 1980 FSC 1, was also challenged before the Shariat Appellate Bench of the Supreme Court. The appeals of the Federation were dismissed as per judgment reported in PLD 1989 SC 633. The following is the relevant passage at page 667:

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Resultantly, amendments weie brought in sections 299 to 338 of Chapter XVI, P.P.C.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 304‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.17‑‑‑Punishment of Qatl‑i‑Amd‑‑‑Proof of Qatl‑i‑Amd liable to Qisas‑‑‑Competence of witnesses ‑‑‑Qisas, in point of proof, has been equated with Hadd‑‑Sentence‑‑‑Quantum‑‑‑Qisas and relatedly Tazkia‑al‑Shahood‑‑‑Concept‑‑For the requirement of proof of Qatl‑i‑Amd liable to Qisas and Hadd, in the absence of the confession envisaged by S.304(1)(a), P.P.C. recourse has to be made to Art. 17 of Qanun‑e‑Shahadat, 1984‑‑‑Evidence to be used against every accused person, more particularly faced with Hudood and Qisas related offences, should be the testimony of witnesses whose integrity, piety and uprightness must be above‑board‑‑‑Court is thus charged with an inescapable duty to satisfy itself about the said virtues of witnesses by conducting the process of Tazkiya‑al‑Shuhood (purgation) ‑‑‑Tazkia‑al‑Shuhood, once conducted about a witness, does not effete before the expiration of six Islamic months‑‑‑Where no such evidence was forthcoming from the record to indicate that the eye‑witnesses were ever put to the test of Tazkia‑alShahood (purgation) during the period of six months preceding their giving of evidence in the case, punishment of death as Qisas inflicted upon the accused was not warranted in law and thus was not maintained by the High Court in appeal.

The accused in the present case stood.trial twice on the charge of committing Qatl‑i‑Amd and both the trials ended in his conviction and punishment of death as Qisas was inflicted upon him. In both the trials the Tazkiya‑al‑Shahood was not ,conducted which demonstrates that the trial Court was oblivious of the significance and imperativeness of such an important feature. of a trial on the criminal charge, involving death penalty as Qisas in the Islamic system of Administration of Criminal Justice.

Islam has devised three systems of punishment .for all criminal offences to be implemented by an Islamic ruler known as Hudood, Qisas/Diyat and Ta'zir. Hudood is an Islamic Legal Terminology which means "specified punishment imposed by Al‑Mighty Allah." Among offences which are categorized as offences punishable by Hudood are stealing, robbing (latrocination), fornication (Zina), false accusation of unchastity without valid evidence (Kzaf), drinking alkohol and apostasy, the relinquishment of religion. (Islam).

If anyone of the offences was / proved to have been committed and the Court finds the offender guilty, the punishment to be meted out as determined by Quranic Ordinance (Nusa Quran) where man has no right to add, alter or reduce the punishment as Hadd (plural Hudood) which is the right of Allah. Man is only commanded to fully execute and implement it.

Qisas: Literally means "equal" or "balanced". In the book of Tafsirul‑Qurtabi, Qisas is also explained as "to follow the track of mark" and it comes, therefore, that the treatment of the offender should be the same as his offence. Qisas according to legal terminology, is "specified punishment imposed by Allah as an obligation to be implemented in order to carry out the right of mankind". Thus, it follows that the life of a murderer should be taken as he had taken the life of his fellowman or someone who injures others should in turn be injured identically.

Hudood and Qisas have almost the same meaning whereby both are the punishments prescribed.by Allah and as an obligation to be implemented by Muslim rulers. However, the rights contained in Hudood are different from the rights found in Qisas. In implementing Hudood punishment. the right of Allah is stressed whereas in administering Qisas, it is the right of man that is more emphasised. For example the punishment for offences like theft, latrocination, intoxication, fornication and apostasy are imposed by Allah and are to be fully implemented without giving any right to anyone to make any alteration, reduction or addition and definitely not to withhold the punishment of Hudood as it is the right of Allah. Unlike Qisas, which, notwithstanding it is determined by Allah and its implementation is an obligation, remains the right of human being as the final decision of its execution rests with the legal heirs of the deceased. It is also permissible for both parties, the offender and the one demanding the Qisas punishment, to replace Qisas with compensation since Qisas is the right of human being.

Besides the taking of human life with intention, Islam equally takes a serious note of causing intentional physical injury to man.

A plain reading of section 304, P.P.C. provides that the offence of Qatl‑i‑Amd can be proved either, as per clause (1)(a), when the accused makes before a Court competent to try the offence, a voluntary and true confession of the commission of the offence; or, as per clause (1)(b) by the. evidence as provided in Article 17 of Qanun‑e‑Shahadat, 1984. Thus, for the requirement of proof of Qatl‑i‑Amd liable to Qisas, in absence of the confession envisaged by clause (1)(a) of section 304, P.P.C., recourse has to be,made to Article 17 of Qanun‑e‑Shahadat.

Thus, in view of Article 17(1) of Qanun‑e‑Shahadat, 1984 for the purpose of determining the competence and reliability of a person to testify, in a case involving punishment of Qisas, guidance has to be sought from Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the. Holy Prophet (s.a.w.s.).

Generally speaking every Muslim is ordained to speak the truth and should give evidence in favour of Allah and no one else. Allah has, in Holy Qur'an, at numerous places emphatically commanded to give the true evidence.

In point of proof Qisas has been equated with Hadd.

In Sura Almaida; Verse 8 and Sura‑e‑Nisa, Verse 135 of Holy Qur'an Allah has positively commanded to give true evidence even if it is opposed to your interest or the interest of your parents and kindred. It means no favourable disposition be allowed to operate as a factor averting the course of truth. Similarly animus against someone be also not a motivating factor for giving a false evidence. In the last referred Verse from Sura‑eNisa, Allah has, injuctively interdicted speaking false. Thus, both ways, positively and negatively, Allah has emphasised the giving of true evidence, as evidence is the fate formation substance coming before a Court through the mouth of a witness qua accused or a party to the lis.

In Islamic system of administration of criminal justice the evidence to be used against every accused person (more particularly faced with Hudood and Qisas related offences) should be the testimony of witnesses whose integrity, piety and uprightness must be above‑board. Thus, the Court is charged with an inescapable duty to satisfy itself about the aforementioned virtues of witnesses by conducting the process of Tazkiya‑al‑Shuhood (purgation).

According to Hanafi School of thought the efficacy of Tazkiya‑alShuhood, once conducted about a witness, does not effete before the expiration of six Islamic months. It means that if a Judge has carried out Tazkiya‑al‑Shuhood about a witness who is proved as Aadil (d >U, )and gives evidence in a case and such a witness again appears as a witness in another case before the same Judge within a period of six Islamic (Arabic) months then no fresh Tazkiya‑al‑Shuhood of the same witness would be required. The reliability/truthfulness being a virtuous element, if once established to be residing in a person as a mark of his character, would not be amenable to such a quick erosion so as to skint it in a period of time short of six months.

No such evidence was forthcoming to indicate that the eye‑witnesses in the present case were ever put to the test of purgation during the period of six months preceding their giving of evidence in this case.

The punishment of death as Qisas inflicted upon the accused was not warranted in law which was not maintained.

Fateh Muhammad v. Bagoo PLD 1960 SC (Pak.) 286; Muhammad Din alias Manni and another v. The State 1994 SCMR 1847; Gul Hassan Khan v. Government of Pakistan and another PLD 1980 Pesh. 1; Muhammad Riaz and others v. Federal Government PLD 1980 FSC 1; Federation of Pakistan v. Gul Hasan Khan PLD 1989 SC 633; Al‑Qur'an: Sure‑e‑Almaida, Verses 8, 45; Sura‑e‑Nisa, Verse 135; Sura Hajj Verse 30; Islamic Law of Evidence by Dr. Anwarullah, p.35; Islami Qanun‑e‑Shahadat by Dr. Tanzeel‑ur‑Rehman; Iftikhar Ali v.‑ The State 1998 PCr.LJ 2022;

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‑‑‑‑Art. 17‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Qisas and relatedly Tazkiya‑al‑Shuhud‑‑‑Concept.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑(302‑‑‑Appreciation of evidence‑‑‑Motive‑‑‑Sentence, reduction in‑‑‑Complainant was not specific on the point of motive nor was the motive proved with transparency‑‑‑Prosecution lacked fairness in setting up. the real motive and something was intentionally being concealed‑‑‑Sentence of death as Ta'zir to the accused, in circumstances, being not justified, sentence of life imprisonment as Ta'zir with payment of Rs.50,000 as compensation under S.544‑A, Cr.P.C. to the legal heirs of the deceased with benefit of S.382‑B,,Cr.P.C. was awarded to the accused by the High Court in appeal.

Asadullah Khan Chamkani for Appellant.

Abdur Rauf Gandapur for the State.

Khawaja Muhammad Khan for the Complainant.

Date of hearing: 27th June, 2001.

PLD 2002 PESHAWAR HIGH COURT 82 #

P L D 2002 Peshawar 82

Before Shah Jehan Khan acrd F4az furl Khan, JJ

WAZIR BAT KHAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.892 of 2001, decided on 21st September, 2001.

Cristirtd Procedure Cede (V of 1898)‑---

‑‑‑‑5. 497‑‑‑Surrender of Illicit Arms Act (XXI of 1991), S.7‑‑‑Bail‑‑Admittedly no evidence whatsoever had been collected during investigation that the accused was present at the place from where he was arrested for commission of some cognizable offence‑‑‑Accused was neither a hardened criminal or a desperate person nor he was ever charged for a criminal offence‑‑‑Section 7 of the Surrender of Illicit Arms Act, 1991 had provided different punishments for keeping illicit arms in possession‑‑‑Accused having been involved for mere possession of a kalashnikov, his case did not fall within the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Accused was not required arty more for investigation‑‑‑Bail was allowed to accused in circumstaem.

Abdul Fayaz for Petitioner.

Abdul Karim for the State.

Date of hearing: 21st September, 2001.

PLD 2002 PESHAWAR HIGH COURT 84 #

P L D 2002 Peshawar 84

Before Abdur Rauf Khan Lughmani and Shahzad Akbar Khan, JJ

SAEED KHAN‑‑‑Petitioner

Versus

Mst. ROZINA and 7 others‑‑‑Respondents

Writ Petition No.30 of 1998, decided on 1st June, 2000.

Civil Procedure Code (V of 1908)‑‑‑‑‑‑‑Ss. 12(2) & 115‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutonal petition‑‑‑Revision‑‑‑Powers of revisional Court‑‑‑Application under S.12(2), C.P.C.‑‑‑Dismissal of suit in proceedings under S.12(2), C.P.C.‑‑‑Judgment and decree passed by the Trial Court was assailed by respondent in application under S.12(2), C.P.C.‑‑‑Trial Court dismissed the application whereas Appellate Court, in exercise of revisional jurisdiction under S.115, C.P.C., set aside the judgment and decree‑‑‑Appellate Court while deciding the revision petition discussed the bona fides of the original suit and dismissed the suit‑‑‑Validity‑‑‑Appellate Court under 5.115, C.P.C. was required to see if the subordinate Court exercised a jurisdiction not vested in it by law or the Court failed to exercise the jurisdiction so vested or that in exercise of its jurisdiction the Court acted illegally or with material irregularity‑‑‑Judgment passed by the Lower Appellate Court was not relevant with reference to the requirements of S.115, C.P.C. as the same had transgressed its limits as a revisional Court by going into the bona fides of the original suit while in fact the Court was required to decide the points involved in the petition under S.12(2), C.P.C.‑-‑Where the Appellate Court found any lapse on the part of the Trial Court, in deciding the petition under S.12(2), C.P.C., within the scope of S.115, C.P.C., the Appellate Court could declare the original decree to be the result of fraud played upon the Court but not to go into theproprieties of the claim in the original suit while deciding the revision‑‑‑Appellate Court, in the present case, had travelled beyond the scope of 5.115, C.P.C. and drew conclusions on presumptions not supported by record‑‑‑Such judgment was unlawful to the extent of rejection of the suit‑‑‑High Court directed the Trial Court to proceed with the suit‑‑‑Constitutional petition was allowed accordingly.

Zafar Abbas Zaidi for Petitioner. Shah Nawaz Khan Sikandri for Respondents Nos. l to 7. Malik Muhammad Bashir for Respondent No. 8.

Date of hearing: 1 st June, 2000.

PLD 2002 PESHAWAR HIGH COURT 87 #

P L D 2002 Peshawar 87

Before Muhammad Qaim Jan Khan, J

JEHANZAIB SHINWARI and 4 others‑‑‑Petitioners

Versus

THE STATE and 5 others‑‑‑Respondents

Quashment Petition No.4 of 2001, heard on 10th December, 2001.

(a) Criminal Procedure Code (V of 1898)‑‑‑‑‑‑‑S. 561‑A‑‑‑Inherent power of High Court‑‑‑Quashing of proceedings‑‑‑Although there is no express bar on a civil case and a criminal case going side by side, yet each and every case depends on its own facts and the Courts are vigilant to see that no abuse of process should be allowed to take place and no rights of a person are affected through such proceedings.

Tahirul Islam v. The State and another 1984 PSC 701; N. Manak Ji v. Fakhar Iqbal and another 1969 SCMR 198; R.C.P. Guignard v. The State and another PLD 1963 (W.P.) Kar. 868; Mahmoodul Hassan v. Imtiaz Khan and another PLD 1963 (W.P.) Lah. 481; Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122; Raja Muhammad Akram Khan v. The State and another PLD 1976 Lah. 214; Sajjad Hussain v. The State PLD 1997 Kar. 165 and Muhammad Khalid Mukhtar v. The State through Deputy Director F.I.A. (C.B.A.), Lahore PLD 1997 SC 275 ref.

(b) Penal Code (XLV of 1866)‑‑‑‑‑‑Ss. 419/420/467/468/161/162‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Criminal Procedure Code (V of 1898), 5.561‑A‑‑‑Stay of proceedings‑‑‑Accused respondent, in spite of the cancellation of the general power of attorney in his favour, had allegedly transferred some property through mutations in favour of the petitioners which was the bone of contention in the civil suit instituted for declaration, perpetual injunction and cancellation of the said mutations‑‑‑Admittedly the matter was purely of a civil nature and if the criminal proceedings were allowed for the time being to proceed, the same would create complications instead of facilitating the matter‑‑‑Criminal proceedings pending. in the Court of Special Judge were consequently stayed till the decision of the civil suit in the ends of justice and for the protection of the guaranteed rights of the parties‑‑‑Petitions were accepted accordingly.

Tahirul Islam v. The State and another 1984 PSC 701; N.Manak Ji v. Fakhar Iqbal and another 1969 SCMR 198; R.C.P. Guignard v. The State and another PLD 1963 (W.P.) Kar. 868; Mahmoodul Hassan v. Imtiaz Khan and another PLD 1963 (W.P.) Lah. 481; Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122; Raja Muhammad Akram Khan v. The State and another PLD 1976 Lah. 214; Sajjad Hussain v. The State PLD 1997 Kar. 165 and Muhammad Khalid Mukhtar v. The State through Deputy Director F.I.A. (C.B.A.), Lahore PLD 1997 SC 275 ref.

M.M. Younis Shah for Petitioners.

Muhammad Jamil Oamar for the State

Muhammad Saeed Butt for Respondents Nos.2 to 4.

Hamidullha Bangash for Respondent No.5, Abdur Rauf Gandapur for Respondent No.6, Date of hearing: 10th December, 2001

PLD 2002 PESHAWAR HIGH COURT 92 #

P L D 2002 Peshawar 92

Before Ejaz Afzal Khan, J

BAIDULLAH JAN and 3 others---Petitioners

Versus

HAWAS KHAN and 11 others---Respondents

Civil Revision Petition No.40 of 2000, decided on 7th December, 2001.

(a) Constitution of Pakistan (1973)

----Arts. 203-D & 264---General Clauses Act (X of 1897), S.6---Expression "ceased to have effect" where a law has been declared repugnant to Injunctions of Islam mentioned in Art.203-D of the Constitution--Expression not synonymous to repealing enactment of a statute---Expression cannot be held synonymous with repeal as is envisioned by Art.264 of the Constitution and S.6 of the General Clauses Aqt, 1897; in the former eventuality even pending cases cannot be dealt with in accordance with the law which has been held repugnant to the Injunctions of "ilam and ceases to have effect after the date mentioned 'in the decision while in the later eventuality a proceeding pending in a Court or any such right, privilege, obligation or liability, acquired, accrued or.incurred under any enactment so repealed are fully protected unless a different intention appears from repealing enactment.

(b) Limitation Act (IX of 1908)-------S. 28---Transfer of Property Act (IV of 1882), S.60---Redeeming of mortgage---Provisions of S.28- of the Limitation Act, 1908, declared repugnant to Injunctions of lslam----Suit not decreed before 31-8-1991, the cut-off date as given by Supreme Court in the case titled Maqbool Ahmad v. Government of Pakistan reported as 1991 SCMR 2063---Validity---If a suit instituted there under was decreed for the target date it .was considered a transaction past and closed but if not then, the suit could not have been decreed thereafter---Suit, in the present case, was instituted on 22-7-1985 but it never culminated in a decree of the Court and by the time when it matured for being decreed, S.28 of the Limitation Act, 1908, did no more adorn the Statute of Limitation---Suit could not have been decreed in circumstances.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 ref.

(c) Transfer of Property Act,,(IV of 1882)-------S. 55(d)-;.-Limitation Act (IX of 1908), S.20---Punjab Alienation of Land Act (XIII of 1900), Ss.6(1) & 7(1)(3)(4)(5)---Usufructuary mortgage, redeeming of---Plaintiff asserted that he was mortgagee of the suit property over sixty ydars, therefore, his title was perfected by prescription and title of the defendants stood extinguished after expiry of the period of sixty years--Both the Courts below had concurrently dismissed the suit ---Validity--Mortgage in question was usufructory mortgage' because possession of the property was with.mortgagees who had been enjoying the usufructs of the property ever since its creation---Where a mortgagee was in possession of the mortgaged property and was in receipt of the usufructs, the receipt of such usufructs were to be treated as payment to the mortgagee for the purpose of limitation regardless altogether of the intention of the parties receiving such usufructs in view of the provisions contained in S.20 of the Limitation Act, 1908---High Court declined to interfere with the judgments and decrees passed by the Courts below.

Taj Din and 8 others v. Karim Bakhsh and 11 others 2000 SCMR 1463 distinguished.

Abdul Haq v. Ali Akbar 1998 CLC 129 and 1999 SCMR 2531 ref.

Malik Muhammad Bashir for Petitioners.

Rustam Khan Kundi for Respondents

Dates of hearing: 30th November and 3rd December, 2001.

PLD 2002 PESHAWAR HIGH COURT 99 #

P L D 2002 Peshawar 99

Before Qazi Ehsanullah Qureshi and Ejaz Afzal Khan, JJ

ABDUR RASHEED‑‑‑Petitioner

Versus

ASSISTANT DIRECTOR, BUILDING CONTROL AGENCY, DERA ISMAIL KHAN and 4 others‑‑‑Respondents

Writ Petition No.23 of 2001, decided on 15th January, 2002.

(a) National Highways and Strategic Roads (Control) Rules, 1998‑----‑R. 3(iv)‑‑‑Construction on road‑side in violation of National Highways and Strategic Roads (Control) Rules, 1998‑‑‑Validity‑‑‑Any person/agency or body even if owns land, cannot carry out construction on the road‑side in violation of the Rules‑‑‑Construction, under R.3(iv) of the National Highways and Strategic Roads (Control) Rules, 1998, can only be carried out on the road‑side beyong forty metres from centre line of the nearest carriage‑way, in the case of sanction of National Highway or Strategic Road which is situated in Municipal limits.

(b) North‑West Frontier Province Building Regulations, 1985‑‑‑‑Regln. 11‑‑‑National Highways and Strategic Roads (Control) Rules, 1998, R.3(iv)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Building plan, cancellation of‑‑‑Grievance of the petitioner was that he constructed his building after submission of his construction plan and on verbal consent of the Building Authorities‑‑‑Building Authorities, on the report of the Highways Authorities issued notice for removal of. the construction for the reason that the construction was within forty metres from the centre of the road‑‑‑Validity‑‑‑Any construction falling within the forty metres from centre line of the road was a clear violation, at the same time the cancellation of layout plan as a whole was also not justified‑‑‑Lay‑out plan and construction plan would be allowed to the extent if not falling under the National Highways and Strategic Roads (Control) Rules, 1998‑‑‑High Court advised the petitioner that he might submit amended layout plan accordingly in line with the directions‑‑High Court noticed that the agency while approving the site plan was not vigilant enough; it was included in their duty to inspect and examine the layout plan and proposed construction on the site before its approval and were under obligation to point out illegality or irregularity on the spot, if any, and would have directed the petitioner to amend his plan in such manner‑‑‑High Court deprecated the conduct of the Building Authorities where the Authorities awoke on the objection of Highway Authorities and issued notice after the construction was over and a huge amount had already been spent‑‑‑Order of the Building Authorities to the extent of the construction beyond forty metres was set aside‑‑Petition was allowed accordingly.

tionar Laman Khan Kundi for Petitioner.

Muhammad Yunis Shaheen (on Notice in C.M.No.20 of 2001)

Date of hearing: 15th January, 2002 .

PLD 2002 PESHAWAR HIGH COURT 102 #

P L D 2002 Peshawar 102

Before Talaat Qayum Qureshi and Ijaz-ul-Hassan, JJ

HAHALAM KHAN and another---Petitioners;

Versus

ELECTION COMMISSION OF PAKISTAN through

Regional Office, N.-W.F.P. and 6 others---Respondents

Writ Petition No.878 of 2001, decided on 2nd October, 2001.

North-West Frontier Province Local Government Elections Rules, 2000------Rr. 3, 9, 12, 15, 29(2), 71, 81, 82 & 84---North-West Frontier Province Local Government Elections Ordinance (VI of 2000), S.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Interruption in polling--Cancellation of election---Disturbance broke out at two polling stations which remained closed for some time, but with intervention of Police and Military Officials polling at those polling stations continued till polling hours fixed in that respect---Result of all polling stations including disturbed polling stations were unofficially declared after counting of votes, but District Returning Officer cancelled election of said two polling stations---Polling in- said two polling stations was though stopped for some time, but same was resumed with intervention of the Authorities concerned and continued uninterruptedly till polling hours and at close of the polling, Presiding Officer prepared unofficial result and declared the same---District Returning Officer after preparation of unofficial result under R.29(2) of N.-W.F.P. Local Government Elections Rules, 2000, could not cancel election of the two polling stations---Only Election Tribunal had the authority to declare election as a whole void under R.84 of N.-W.F.P. Local Government Elections Rules, 2000 and no other Authority even the Chief Election Commissioner was competent either to cancel or declare the election void---Order cancelling election passed unauthorisedly by District Returning Officer and Notification issued in that respect, was set aside in circumstances.

Ali Jamil Qazi for Petitioner.

Muhammad Yousaf, Mufti Daud Shah and Salauddin (in person).

Mohibullah Kakakhel . and Muhammad Iqbal Khalil for Respondent No.5.

No.5

Shamoon Ahmad Bajwa for Respondent No.6.

Date of hearing: 30th August, 2001.

PLD 2002 PESHAWAR HIGH COURT 109 #

P L D 2002 Peshawar 109

Before Shahzad Akbar Khan, J

MUHAMMAD YOUNAS‑‑‑Petitioner

versus

Mst. MEHR AFZOON‑‑‑Respondent

Civil Revision No. 187 of 1994, decided on 25th January, 2002.

(a) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13(2)‑‑‑Talb‑i‑Muwathibat‑‑‑Object‑‑‑Such demand is also called a jumping demand which is to be made by prospective pre‑emptor without loss of any time in the very Majlis sitting in which he gets the knowledge of sale‑‑‑Philosophy behind Talb‑i‑Muwathibat is that it is the test for determining the originality or self‑existent urge of the pre‑emptor and to determine that the action brought in Court in form of Talb‑i‑Khusumuat is not the outcome of any foreign element of persuasion, avarice or any other consideration extraneous to the lawful object of pre‑emption ‑‑‑Expression of intention of pre‑emptor to pre‑empt a sale is to be contemporaneous with the knowledge of sale.

(b) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13(3)‑‑‑Talb‑i‑Ishhad‑‑‑Validity‑‑‑Making of oral Talb‑i‑Ishhad is also regarded as proper compliance of the requisite Talb‑‑‑Sending of written notice through postal service is not the only mode of making of Talb‑i‑Ishhad but oral demand in presence of two truthful witnesses reinforcing his earlier intention of Talb‑i‑Muwathibat by the prospective pre‑emptor is also a valid mode of Talb‑i‑Ishhad as an alternative, of course, subject to the condition of non‑availability of the postal facilities.

‑‑‑‑S. 13(3)‑‑‑Talb‑i‑Ishhad‑‑‑Necessary ingredients‑‑‑Ingredients of Talb‑i-Ishhad as provided by S.13(3) of North‑West Frontier Province Pre‑emption Act, 1987 are that the notice must be sent as soon as possible after Talb‑i-Muwathibat but not later than two weeks; that notice must be in writing; that it must be attested by two truthful witnesses, and that it must be sent under registered cover acknowledgement due‑‑‑Language of S.13(3) of North‑West Frontier Province Pre‑emption Act, 1987, suggests that it is the sending of a notice with the said ingredients which is imperative and consequently the pre‑emptor is bound to prove the factum of sending of such notice to the vendee ‑‑‑If the pre‑emptor succeeds in establishing the fact that he has sent the notice of Talb‑i‑Ishhad to the vendee in terms of S.13(3) of North‑West Frontier Province Pre‑emption Act, 1987, that would be a substantial compliance of the legal requirement.

(d) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13(3)‑‑‑Notice of Talb‑i‑Ishhad‑‑‑Value‑‑‑Sending of notice of Talb‑i-Ishhad is a procedural matter to facilitate the proper process of tiling a suit of pre‑emption ‑‑‑Court, in a suit for pre‑emption has to look whether a substantial compliance of S.13(3) of North‑West Frontier Province Preemption Act, 1987, has been made or not.

(e) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13(3)‑‑‑Pre‑emption suit‑‑‑Notice of Talb‑i‑Ishhad‑‑‑Proof‑‑‑Statement of Postal Authorities‑‑‑Suit was dismissed by the Trial Court while the Appellate Court allowed the appeal and decreed the suit in favour of the preemptor ‑‑‑Contention of the vendor was that the pre‑emptor failed to prove the mandatory notice of Talb‑i‑Ishhad‑‑‑Validity‑‑‑Pre‑emptor had produced the attesting witnesses of the notice and Sub‑Postmaster to prove the notice‑‑From the evidence of the witnesses produced by the pre‑emptor it was abundantly proved that the notice was served on the vendor and it was a sufficient compliance of S,13(3) of the North‑West Frontier Province Preemption Act, 1987‑‑‑High Court declined to take any exception to the judgment and decree passed by the Appellate Court as the same did not suffer from any legal infirmity of the nature of misreading and non‑reading of evidence‑‑Revision was dismissed in circumstances.

Muhammad Gul v. Mir Afzal 1999 SCMR 724; Mir Sahib Khan v. Muhammad Rauf Khan 1992 SCMR 1780; Abdul Malik v. Muhammad Latif 1999 SCMR 717; Haji Rana Muhammad Shabbir Khan v. Government of Punjab PLD 1994 SC 1 and Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

(f) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Power of Attorney Act (VII of 1882), S.2‑‑‑Pre‑emption suit‑‑‑Non‑appearance of pre‑emptor in witness‑box‑‑‑Effect‑‑‑Law permits a litigant to be represented through the appointed attorney‑‑‑Statement of the attorney, in the present case was rightly recorded in circumstances.

Muhammad Younas Khan Tanoli for Petitioner.

Malik Abdul Jalil for Respondent.

Date of hearing: 25th January, 2002.

PLD 2002 PESHAWAR HIGH COURT 118 #

P L D 2002 Peshawar 118

Before Talaat Qayyum Qureshi and Muhammad Qaim Jan Khan, J

MUHAMMAD HAYAT and 2 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Ehtesab Criminal Appeal No.9 of 2001, decided on,15th May, 2002.

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

‑‑‑‑Ss. 14, 10, 9, 18(g) & 24(b)‑‑‑Presumption against accused ‑‑‑Scope‑‑Mere fact that a person stood charged for trial in the Accountability Court would not give rise to a presumption of guilt in respect of S.14 of the Ordinance‑‑‑Burden of proof, shifting of‑‑Conditions‑‑‑Term "reasonable" used in S.14(d) of National Accountability Bureau Ordinance, 1999‑‑Connotation‑‑‑Duty of the prosecution was to prove a prima facie case which was in accordance with the reason, not absurd, fair, proper, just, moderate and suitable under the circumstances‑‑‑Principles‑‑‑Unless the facts constituting misuse of authority as contemplated under S.9(a)(vi) of the National Accountability Bureau Ordinance, 1999 are established the accused cannot be called upon to prove his innocence within the meaning of S. 14(d) of the said Ordinance‑‑‑Prosecution, in such a case would have to lead evidence against the accused and then he would be called upon to prove his innocence‑‑‑Principles‑‑‑Satisfaction of the Court‑‑‑Concept.

Section 14 of the National Accountability Bureau Ordinance, 1999 deals with the presumption against the accused.

According to section 14 of the National Accountability Bureau Ordinance, 1999 if a person is charged under clause (vi) or clause (vii) of subsection (a) of section 9 of the National Accountability Bureau Ordinance, it is the prosecution which shall first make out a reasonable case against the accused and the mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of the above mentioned section of National Accountability Bureau Ordinance. In section 14(c) the legislature in its own wisdom has used words "unless the contrary is proved" which means the contrary can only be proved by accused if earlier something has been proved against him, that is, the burden shall shift to the accused to prove to the contrary if some case has been made out against him by the prosecution when the law raises a presumption against the accused and calls upon him to prove the contrary, the contrary cannot be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution, therefore, it was the duty of the prosecution to show that accused had misused his authority and thereby accumulated wealth, movable and immovable properties in his own name or in the name of any other person or he wilfully failed to exercise his authority to prevent undue benefit of favour. Unless the facts constituting misuse of authority as contemplated under section 9(a)(vi) of the Ordinance are established the accused cannot be called upon to prove his innocence within the meaning of section 14(d) of the Ordinance. In such a case the prosecution would be duty‑bound to lead evidence against the accused and then he would be called upon to prove his innocence.

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 National Accountability Bureau Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. The provisions do not constitute a bill of attainer, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set‑up. The following are the directions for effective operation of section 14(d) of the Ordinance:‑‑

(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.

(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.

The mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of offences under section 9(a)(vi) and (vii) of the Ordinance. If such a view is adopted then the prosecution would be absolved of its duty to lead any evidence and accused could be called upon to make a statement under section 342 of the Cr.P.C. and then prove his innocence as required under section 14(d) of the Ordinance. Such an interpretation would lead to absurdity and make a mockery of criminal justice. The stage of showing that the accused had used his authority in the public interest fairly, justly and for the advancement of the purpose of law, can come only when the prosecution has initially discharged its burden of establishing necessary facts to show that the accused had "misused" his authority so as to gain any benefit for himself or any other person or to render or attempt to do so or wilfully failed to exercise his authority to prevent the grant or rendition of any undue benefit or favour which he could have prevented by exercising his authority. Unless the basic facts constituting "misuse" of authority as contemplated under section 9(a)(vi) of the Ordinance are established, the accused cannot be called upon to prove his innocence within the meaning of section 14(d) of the Ordinance.

In the proviso to the subsection (d) of section 14 the word "reasonable" has been used which is of significant importance though word "reasonable" has not been defined in the National Accountability Bureau Ordinance.

The word "reasonable" is defined as under:--

Reasonable means fair, proper, just, moderate, suitable under the circumstances. Fit and appropriate to the end in view. Having the faculty of reason: rational; governed by reason; under the influence of reason; agreeable to reason. Thinking, speaking, or acting according to the dictates of reason. Not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable.

The word "reasonable" has also been defined as under:‑‑

Reasonable. (i) Conformable to reason; such as is rationally fitting or proper; sensible as, a reasonable view. (ii) Endowed with the faculty of reason; as, reasonable beings. (iii) Acting or thinking in conformity with the dictates of reason; as, any reasonable person will admit this, (iv) Characterized by moderation; moderate.

The word "reasonable" has further been defined as follows:‑‑

Reasonable (‑z‑) a. 1. Having sound judgment, sensible, moderate, nor expecting to such, ready to listen to reason. 2. In accordance with reason, not absurd; within the limits or reason, not greatly less or more than might be expected; inexpensive, not extortionate; tolerable, fair. 3. (arch.) endowed with faculty of reason.

The word "reasonable" is a relative generic term difficult of adequate definition. It inter alia connotes agreeable to reason; comfortable to reason having the faculty of reason: rational; thinking, speaking, or acting rationally, or according to the dictates of reason; sensible; just; proper and equitable or to act within the Constitutional bounds.

Keeping in view the definitions of word "reasonable' it was the duty of the prosecution to prove a prima facie case which was in accordance with the reason, not absurd, fair, proper, just, moderate and suitable under the circumstances.

The prosecution if succeeds in making out a reasonable case, to the "satisfaction" of the Accountability Court, it would be deemed to have discharged the prima facie burden of proof and then the burden of proof shifts to the accused to rebut the presumption of guilt. Similarly in section 14(c) of the Ordinance the language used is "he cannot satisfactorily account". The satisfaction of the Court must be based on proper determination from all facts and circumstances of the case, be real, bona fide and not actuated by malice.

' "Satisfaction" is by no means a term of art and appears to have been used in its ordinary dictionary sense. "Satisfaction" is the existence of a state of mental persuasion much higher than a there opinion and when used to the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well‑settled judicial principles and is a firm state of mind admitting of no doubt or indecision or ascillation. To be "satisfied" with a state of things is to be honestly convinced in one's own mind. Apart from the "Legal satisfaction" which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudicial mind beyond a reasonable doubt. "Satisfy" is synonymous with, "convince beyond a reasonable doubt" and "satisfaction" is a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. "To satisfy" means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince.

Though it is true that there is a difference between "being satisfied" and "suspecting upon reasonable grounds" the difference, is this that the former connotes a state of mind bordering on conviction induced by the existence of facts which has removed the doubts, if any, from the mind and taken it out of the stage of suspicion.

It is the duty of the prosecution to prove a prima facie case reasonably to the satisfaction of the Court. In case the prosecution succeeds in proving prima facie case, when the burden shifts to the accused. This burden can be discharged by him by producing evidence oral or documentary, by examining a witness or through his statement recorded under section 342, Cr.P.G. If the accused succeeds in offering reasonable explanation or by circumstances a doubt is created in the case of prosecution, then presumption of guilt cannot be drawn against the accused.

Plausible explanation tendered by accused should be given weight and preference over prosecution version.

The burden can be discharged by defence by showing preponderance of probabilities and unlike the prosecution the defence is not liable to prove its case beyond any shadow of doubt.

Khan Asfandyar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607: Mir Abdul Baqi Baluch v. The Government of Pakistan and others PLD 1968 SC 313; Syed Saeed Hassan v. Dayar Ali and others PLD 1976 SC 6; PLD 1994 SC 679; PLD 1991 SC 787; Dr. Farooq Sattar v. The State Criminal Appeal No. 1160 of 2000; Black's Law Dictionary, 6th Edn.; New Standard Dictionary, Vol.III; Concise Oxford Dictionary, 7th Edn.; Messrs Ilahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Syed Saeed Hassan v. Payar Ali and 7 others PLD 1976 SC 6; Ikramuddin v. The State PLD 1958 (W.P.) Kar. 21; Sultan Ali v. The State PLD 1971 Kar. 78; Allahdino Khan v. The State 1992 MLD 564; Jeoomal Tikamdas v. Emperor AIR 1939 Sindh 208; Syed Muhammad Khalilullah v. State PLD 1962 Dacca 270; Barkat Ali and another v. The State PLD 1973 Kar. 659; Lutf Ali v. The State 1977 PCr.LJ 627; Muhammad Hanif v. The State 1992 SCMR 2272; Mir Ahmad v. The State PLD 1962 SC 639; Malik Waris Khan v. Ishtiaq and others PLD 1986 SC 335 and AIR 1953 SC 468 ref.

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

‑‑‑‑S. 9‑‑‑Allegation of corruption and corrupt practices‑‑‑Appreciation of evidence‑‑‑Accused was Food Supervisor in the Provincial Food Department from 1982 to 1997‑‑‑Neither any instance of misuse of authority was cited 'nor "corruption" or "corrupt practices" of the accused were brought on record‑‑‑Not an iota of evidence was available to show that the accused while performing his duties had done anything illegal, violated any rule, committed any breach of discipline, gone out of the way to favour any one for pecuniary benefits and thus had ill‑gotten earning‑‑‑Prosecution witnesses had admitted in cross‑examination that accused had good reputation and was .not living beyond means‑‑‑Three persons who were inimical towards the accused had submitted application against the accused, upon which a departmental enquiry was conducted and their application was turned down by the Enquiry Officer‑‑‑Record of the Food Department showed that accused had never indulged in "corruption" and "corrupt practices"; lived a simple life and had good reputation‑‑‑Investigating Officer of the National Accountability Bureau was also unable to state a single word about corruption or corrupt practices of the accused‑‑‑Finding of the Trial Court being entirely unfounded, conviction and sentence of accused were set aside.

‑‑‑‑S. 9‑‑‑"Corruption" and "corrupt practices" ‑‑‑Meanings.

The words "corruption" and "corrupt practices" have riot been defined in the National `Accountability Bureau Ordinance, but the meaning of these words have been described in the dictionary in the following words:‑‑

"Corruption: An act done with an intent to give some advantage inconsistent with official duty and the rights of others. The act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others".

"Practices" are succession of acts of a similar kind and "corrupt" means "spoiled; tainted; vitiated; depraved; debased; morally degenerate". Corrupt practices are thus series of depraved/debased/morally degenerate acts.

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

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

‑‑‑‑S. 9‑‑‑Corruption and corrupt, practices‑‑‑" Dependent"‑‑‑Meanings‑‑Dependent having not been defined in the National Accountability Bureau Ordinance, 1999, if dictionary meanings of the term "dependent" are taken into account the same simply means "a person who is financially "dependent" on someone and who requires financial support from a person upon whom he depends for maintenance".

Black's Law Dictionary, 6th Edn.; Oxford Dictionary; Webster's Comprehensive Dictionary; New Webster Dictionary; New Standard Dictionary and Chambers' Dictionary, 1999 Edn. ref., (e) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S. 9‑‑‑Corruption and corrupt practices‑‑‑Allegation of benami transaction by the accused‑‑‑Criteria for determination of the question of benami transaction.

For determining the question, whether a transaction is a Benami transaction or not, inter alia the following factors are to be taken into consideration:

(i) Source of consideration;

(ii) from whose custody the original title deed and other documents came in evidence;

(iii) who is in possession of the suit property; and

(iv) motive for the Benami transaction.

The initial burden of proof is on the party, who alleges that an ostensible owner is a "Benamidar" for him and that the weaknesses in defence evidence would not relieve a plaintiff from discharging the burden of proof.

The onus probandi to prove the "Benami" character of transaction lies upon him, who alleges it.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 fol.

Jane Margrete William v. Abdul Hamid Mian 1994 CLC 1437; Ch. Rehmat Ali v. Abdul Khaliq through his L.Rs. and another 2000 MLD 1948; Mst. Sardar Khatoon and others v. Dost Muhammad and another 1988 SCMR 806; M.D. Abdul Majid and others v. Dr. Zainul Abidin and others PLD 1970 Dacca 414; Ismail Dada Adam. Soomro v. Shorat Banod and others PI.D 1960 Kar. 852 and AIR 1938 Mad. 8 ref.

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

‑‑‑‑S. 9‑‑‑Corruption and corrupt practices‑‑‑Allegation of benami transaction by the accused in order to conceal his ill‑gotten wealth‑‑‑Appreciation of evidence‑‑‑Prosecution, in the present case, had failed to bring on record as' to whether accused had ever negotiated the sale/purchase of either of the properties; he was present at the time of sale or attestation of mutations; possession of any of the properties was handed over to him by any of the vendors; accused had received the usufruct of the properties and documents of ownership of any property ever remained in his possession‑‑‑Accused, on the other hand had produced all the vendors in his defence and had successfully proved that it were the vendees who had paid the sole consideration and possession was delivered to them and they were still enjoying possession‑‑‑In the absence of any proof it could not be presumed that accused and their sister and mother were holding the properties and Bank accounts as Benamidars.

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

‑‑‑‑S. 9‑‑‑Criminal Procedure Code (V of 1898), Ss. 342 & 340(2)‑‑Constitution of Pakistan (1973), Art.13(b)‑‑‑Allegation of corruption and corrupt practices‑‑‑Interpretation of S.340, Cr.P.C.‑‑‑Trial Court had not given any importance to the statement of accused recorded under S.342, Cr.P.C. merely because he did not wish to be examined on oath as his own witness under S.340, Cr.P.C.‑‑‑Validity‑‑‑Nobody can be compelled to give evidence in the very matter in which he is accused‑‑‑Principles‑‑‑Defence, in circumstances, is not duty bound to prove anything mathematically with precision and exactitude and beyond shadow of doubt‑‑‑Principles.

The trial Court in the present case has discarded the statement of the accused recorded under section 342, Cr.P.C. on the ground that they did not wish to be examined on oath and adverse inference was drawn. The accused cannot be compelled to make a statement on Oath, Subsection (2) of section 340, Cr.P.C. only confers a power on the Court to inform the accused that he has a right under the law to make a statement on Oath and it is his option to make a statement on Oath or not.

If accused persons declined to be examined on Oath, that does not leave it open to presume that they are guilty for it is the duty of prosecution to prove the case against accused beyond doubt and burden is not reduced by the provision of section 340, Cr.P.C. which gives option to the accused to appear for himself as witness and give statement on oath or not.

The Criminal Procedure Code, of which section 340(2) forms a part, has two indicators of importance to the case. The first indicator is found in subsection (4) of section 342, Cr.P.C. to the effect that "except as provided by subsection (2) of section 340, no oath shall be administered to the accused". The other indicator is in the subsequent section which says "except as provided in sections 337 and 338, no influence by means of any promise or threat or otherwise shall be used to any accused person to induce him to disclose or withhold any matter within his knowledge". If an accused is mandated to make a statement on oath under section 340(2), Cr.P.C. or if he is told that if he does not make that statement the inference will be drawn against him, he will come under a pressure which will violate requirements of section 343, Cr.P.C. Therefore, the interpretation of section 340(2), Cr.P.C. has to be that it has no compulsive effect on the accused. All that the Court can do is to ask him whether he will like to make a statement on oath. It is his option and without prejudice to his case to make a statement or not to make a statement on oath. No adverse inference can be drawn if he does not opt to make a statement.

Nobody can be compelled to be witness against himself i.e. a person cannot be compelled to give evidence in the very matter in which he is accused or is liable to be accused and then to base charge on such evidence, and at the trial of the accused, to use such evidence to prove his guilt. Article 13(b) of the Constitution of Islamic Republic of Pakistan (1973) guarantees this right to an accused by way of fundamental right.

As to whether it was the duty of the defence to prove anything beyond any shadow of doubt and whether the defence must prove mathematically, with precision and exactitude?. The answer to this question was in negative.

Javed v. The State PLD 1994 SC 679; Mst. Amir Khatun v. Faiz Ahmad and others PLD 1991 SC 787; Rashid Ahmad v. The Sate 2001 SCMR 41; Lal Khokhar v. The State 1990 PCr.LJ 1073 and Anwar Khattak v. The State 1993 PCr.LJ 1976 ref.

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

‑‑‑‑Ss. 9, 10, 14, 18(g) & 24(b)‑‑‑Allegation of corruption and corrupt practices by a Government official‑‑‑Appreciation of evidence‑‑‑Prosecution had failed to prove reasonable case muchless to the satisfaction of the Court‑‑‑Charges levelled against the accused could not be brought home by the prosecution‑‑‑No direct or indirect evidence to show that the accused was a corrupt official and he was holding such responsible position by misuse of which, he had amassed huge wealth‑‑‑Not a single witness had deposed that the accused was a dishonest/corrupt person and was living beyond his means‑‑‑No evidence was available on record to show such acts or omissions or the powers he exerted, the influence he brought to bear upon someone as to constitute misuse of. that authority‑‑‑ Nothing was available on record to prove that accused/ co‑accused and their mother were holding the properties (mentioned in the charge), vehicles and Lank accounts as Benamidars and that they were "dependent" on the accused‑‑‑Investigating Officer, in the cross‑examination had admitted to the extent that there was not direct evidence because it was a white collar crime and he had just collected evidence for drawing conclusion‑‑‑Trial Court had discarded the entire evidence produced by the accused on wrong premises‑‑‑Documents which were not admissible were relied upon and those documents which favoured the accused were conveniently ignored‑‑‑Trial Court had based conviction on presumptions only without cogent, convincing and adequate evidence on record, which was lacking in the case and failed to appreciate properly the law applicable to the case and interpretation of Supreme Court Judgment was squeezed and judgments of superior Courts were not kept in view‑‑‑Accused on the other hand had given satisfactory explanation about sources of their income and adduced sufficient documentary and oral evidence in their support‑‑‑Appeal against conviction by the Trial Court was accepted by High Court in circumstances and accused was acquitted.

(i) Words and phrases‑‑

‑‑‑‑"Reasonable"‑‑‑Definition.

(j) Words and phrases‑‑

----To satisfy "‑‑‑Meaning.

Muhammad Sardar Khan for Appellants.

Ziaur Rehman, Special Prosecutor for the State.

Date of hearing: 18th April, 2002.

PLD 2002 PESHAWAR HIGH COURT 173 #

P L D 2002 Peshawar 173

Before Khalida Rachid, Muhammad Qaim Jan Khan and Ijaz‑ul‑Hassan, JJ

ARBAB AAMIR AYUB KHAN and another‑‑‑Petitioners

versus

CHIEF ELECTION COMMISSIONER OF PAKISTAN, ISLAMABAD and 4 others‑‑‑Respondents

Writ Petition No.903 of 2001, decided on 19th June, 2002.

(a) North‑West Frontier Province Local Government Elections Ordinance (VI of 2000)‑‑‑

‑‑‑‑S. 39‑‑‑North‑West Frontier Province Local Government Elections Rules, 2000, R.40‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Re‑counting of ballot papers by Returning Officer‑‑‑Powers of Chief Election Commissioner to entertain petition for interference in the matter‑‑‑Scope‑‑‑Chief Election Commissioner had no adjudicating powers to interfere with the order of the Returning Officer in the matter‑‑‑Powers exercised by the Returning Officer adjudicating the dispute were drawn from the statute itself and not conferred by the Chief Election Commissioner and such powers could rightly be termed as inherent powers of the Returning Officer‑‑‑Chief Election Commissioner had the administrative responsibilities and not adjudicating powers‑‑‑Principles.

Per Khalida Rachid, J.‑‑ .

The Chief Election Commissioner did not possess the powers under the N.‑W.F.P. Local Government Elections Ordinance, 2000 as well as the Rules whereunder to suggest that the Chief Election Commissioner had adjudicating powers to interfere with the orders of the Presiding Officer. There was no provision suggesting that Chief Election. Commissioner was vested with the powers of sitting over the orders of the Returning Officer. The Delegator after delegating his authority was not divested and deprived of his powers, under the law. The delegator and delegatee both could exercise powers concurrently but those powers could only be exercised where the delegator possessed of the powers which he had delegated under the law. Powers exercised by the Presiding. Officer, Returning Officers, Election Tribunal for adjudicating election disputes were‑drawn from the Statute itself and not conferred by the Chief Election. Commissioner. These powers could rightly be termed as inherent powers of the Presiding Officer, Returning Officer etc. Thus the Chief Election Commissioner had the administrative responsibilities and not adjudicating powers.

Per Muhammad Qaim Jan Khan, J.‑‑

Under the N.‑W.F.P. Local Government Elections Ordinance and the Elections Rules as well as under the Constitution of Islamic Republic of Pakistan, 1973 the Chief Election Commissioner has no authority to sit over the result already declared by the District Returning Officer and if there is any dispute the proper forum is the Tribunal. Neither in the N.‑W.F.P. Local Government Elections Ordinance and Elections Rules, 2000 nor in Article 219 of the Constitution of Islamic Republic of Pakistan, 1973 such powers had been given to the Chief Election Commissioner and the duties of the Chief Election Commissioner under Article 219 of the Constitution are:‑‑

(a) preparing electoral rolls for election to the National Assembly and the Provincial Assemblies, and revising such rolls annually:

(b) organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly; and

As far as the N.‑W.F.P. Local Government Elections Ordinance and Rules are concerned, those are also silent with regard to ,the adjudication powers of the Chief Election Commissioner.

Per Ijaz‑ul‑Hassan, J.‑‑

The Chief Election Commissioner had no authority to intervene and the dispute should have been referred to the quarter concerned i.e. Election Tribunal for adjudication, which had exclusive jurisdiction to deal with such like matters.

Per Khalida Rachid, J; Ijaz‑ul‑Hassan, J. agreeing; Muhammad Qaim Jan Khan, J. contra‑‑

(b) North‑West Frontier Province Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 34 & 39‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Counting of votes after the poll was over‑‑‑Signature by the Presiding Officer was not required to render the ballot paper valid and worth counting‑‑‑Principles.

Under the Election Rules, both stamp of official mark and signature of the Presiding Officer are not required to render the ballot paper valid and worth counting. Rule 34 of the N.‑W.F.P. Local Government Elections Rules. 2000 prescribes the voting procedure. Under Rule 34(2)(iii)(iv), it has been made mandatory upon the Presiding Officer that before issuing ballot paper to an elector, the ballot paper shall on its back be stamped with the official mark and signed by the Presiding Officer whereas Rule 39(4)(iii)(a) while prescribing the procedure at the close of the poll, provides that Presiding Officer shall count the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear no official mark. The simple perusal of the provision of rules 34 and 39 connotes that the former has prescribed guidelines for the Presiding Officer who is directed to stamp and sign the ballot paper before delivering it to the elector before casting vote while under the latter Rule 39, restriction is imposed on holding the votes, already cast, as valid which bear the stamp of official mark only. In other words, the Presiding Officer is required to count the cast ballot papers of the contesting candidates which bear the official mark. It appears that the legislature in its wisdom has intentionally waived off the condition of signature by the Presiding Officer at the time of counting after the poll is over.

Per Ijaz‑ul‑Hassan, J. agreeing with Khalida Rachid, J.‑‑

Absence of signature due to oversight or negligence of the Presiding Officer does not by any means justify rejection of a valid ballot papers bearing the official mark in the shape of official stamp which the Presiding/Polling Officer has admitted in his statement to be genuine and valid. The ‑beneficiary in whose favour the vote has been balloted should not suffer on account of any lapse or mistake or negligence on the part of the Government functionary.

Per Muhammad Qaim Jan Khan, contra (Minority view)‑‑

As far as rule 34(2)(iii)(iv) is concerned it is mandatory upon the Presiding Officer that before issuing ballot papers to an elector, the ballot paper shall be stamped on its back with official mark and signed by the Presiding Officer and the stamp and signature mean the official mark and although the purpose of High Court in such like petitions is to do substantial justice but it should not mean that an illegal act should be made a legal one. So in this background of the case, the writ petition is allowed and the order of the Chief Election Commissioner declaring respondents as successful is ultra vires and without jurisdiction and is, therefore, set aside.

Per Khalida Rachid, J.‑‑

‑‑‑‑Rr. 34 & 39‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Re‑counting of ballot papers‑‑‑Returning Officer had confirmed and verified the genuineness of the ballot papers in question‑ ‑‑Record showed that counterfoils of the ballot papers in question were duly signed and stamped with official mark‑‑‑None of the parties had claimed rigging and foulplay in the process of voting‑‑‑Returning Officer without applying his mind and in haste misrepresenting the provision of R.39 of the Rules declared the ballot papers, though duly stamped (as required by R.39), as invalid and unjustifiably unseated the respondents who had boxed more votes than 'the petitioners‑‑‑Validity‑‑‑High Court, while exercising equitable jurisdiction could always take into consideration that naked injustice be not done to any party‑‑‑Contesting respondents could not be made to suffer for oversight or negligence of the functionaries‑‑‑High Court, in circumstances, declined to extend the scope of Constitutional jurisdictions in aid of injustice and restrained to issue writ which could perpetuate the illegal order of the Returning Officer.

In the present case the Presiding Officer when appeared before the Chief Election Commissioner confirmed and verified the genuineness of the ballot papers in question. It was also observed from the record that the counter‑foils of the ballot papers in question went duly Signed and stamped with official mark. Nope of the parties claimed rigging and foulplay in the process of voting.

Returning Officer, without applying his mind and in haste misinterpreting the provision of Rule 39 of the Rules declared the ballot papers, though duly stamped (as required under Rule 39), as invalid and unjustifiably unseated the respondents who had boxed more votes than the petitioners.

While exercising Constitutional jurisdiction, which is equitable jurisdiction, the Court can always take into consideration that naked injustice may not be done to any party. The contesting respondents cannot be made to suffer for the oversight or negligence of the functionaries. Firstly, in the present case, the Presiding Officer failed to comply with the provision of rule 34 by not signing the ballot paper before handing over the same to the voter which was required to have been signed and stamped with official mark and secondly, the Returning Officer misinterpreted the law under Rule 39 of the Rules ignoring the stamp of official mark on the ballot paper which was the only requirement at that stage. Article 199 of the Constitution grants extraordinary remedy which is essentially discretionary. It is, therefore, open to the Court to foster the cause of justice and not to extend the scope of Constitutional jurisdiction in aid of injustice.

High Court restrained to issue writ while exercising equitable jurisdiction which would perpetuate the illegal order of the Returning Officer.

1982 SCMR 76; 1987 MLD 2454; 1992 MLD 2146 and Syed Ali Shah v. Abdul Saghir Khan Sherwani and others PLD 1990 SC 504 ref.

Per Ijaz‑ul‑Hassan. J. agreeing with Khalida Rachid, J.‑‑

Absence of signature due to oversight or negligence of the Presiding Officer does not by any means justify rejection of a valid ballot paper bearing the official mark in the shape of official stamp which the Presiding/Polling Officer has admitted in his statement to be genuine and valid. The beneficiary in whose favour the vote has been allotted should not suffer on account of any lapse or mistake or negligence on the part of the Government functionary.

While exercising Constitutional jurisdiction, which is equitable jurisdiction, the Court can always take into consideration that naked injustice may not be done to any party and the contesting respondents cannot be penalized for lapse or oversight on the part of the Presiding Officer. Election is a continuous process consisting of series of acts required to be done in different stages in accordance with law.

Article 199 of the Constitution provides inter alia for a declaration, a prohibitory order, a mandatory order and an order in the nature of quo warranto and the jurisdiction possessed by the High Court in such matters is discretionary. This is clear from the use of the word 'may' in the opening part of the Article. The object of such orders is to foster justice and to right a wrong.

Qazi Muhammad Anwar for Petitioners.

Jehanzeb Rahim, Bar‑at‑Law and Abdul Latif Afridi for Respondents.

Dates .of hearing: 4th and 5th December, 2001

Quetta High Court Balochistan

PLD 2002 QUETTA HIGH COURT BALOCHISTAN 1 #

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PLD 2002 QUETTA HIGH COURT BALOCHISTAN 38 #

P L D 2002 Quetta 38

Before Aman‑ul‑Allah Khan and Fazal‑ur‑Rehman, JJ

MUHAMMAD AYUB‑‑‑Petitioner

versus

Syed MOHAYYIJDIN and 10 others‑‑‑Respondents

Constitutional Petition No.4661 of 2001, decided on 27th November, 2001.

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

‑‑‑‑O. VI, R. 17 & S. 115‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Application for amendment of plaint‑‑‑Rejection of such application was a "case decided" and was amenable to revisional jurisdiction.

Bashir Ahmad v. Qaisar Ali Khan and 2 others PLD 1973 SC 507; Muhammad Swaleh v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; Saifullah Malik v. The Government of West Pakistan PLD 1969 Lah. 506; Muhammad Umar Beg v. Sultan Muhammad Khan. PLD 1970 SC 139 and S. Zafar Ahmad v. Abdul Khalique PLD 1964 Kar. 149 ref.

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

‑‑‑‑O. VI, R.17‑‑‑Amendment of plaint‑‑‑Plaintiffs who had claimed ownership of the suit property on the basis of mutation entry,, had mentioned in the plaint that they had purchased the property from its owner vide mutation entry‑‑‑Plaintiffs in their application for amendment in the plaint wanted to make amendment to the extent that said property was mutated in their name by way of Sahat‑e‑Indraj‑‑‑Plaintiffs, in the suit, had claimed to be owners of property by way of purchases, whereas by way of amendment they wanted to substitute the word 'purchase" by way of "Sahat‑e‑Indraj" which would not change the status of the plaintiffs as owners ‑‑‑Effect‑‑Amendment would not change the complexion or nature of the suit as even if the word "Sahat‑e‑Indraj" was substituted with the word "sale" the status of the plaintiffs as owners would remain the same‑‑‑Courts should be liberal enough to allow amendment, if it would not set up a new case or change the complexion of the suit.

PLJ 1987 AJK 170; PLJ 1993 AJK 75; PLD 1993 SC 88; 1994 SCMR 2293; 1999 CLC 1287; 1999 CLC 1195; 2001 MLD 614; 2001 MLD 1083 and PLD 1985 SC 345 ref.

Ch. Muhammad Arshad for Petitioner.

Mumtaz Hussain Baqri for Respondents.

Date of hearing: 12th November, 2001.

PLD 2002 QUETTA HIGH COURT BALOCHISTAN 42 #

P L D 2002 Quetta 42

Before Aman‑ul‑Allah Khan and Ahmad Khan Lashari, JJ

NASRUDDIN and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.386 of 2000, 4 and 8 of 2001, decided on 18th October, 2001.

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

‑‑‑‑S. 345(2) & (7)‑‑‑Penal Code (XLV of 1860), S.311‑‑‑Compounding of offence‑‑‑Permission of the Court for compounding of an offence is mandatory and no offence mentioned in subsection (2) of S.345, Cr.P.C. shall be compounded without such permission‑‑‑Where the Court withholds its permission, then it has discretion under 5.311, P.P.C. to impose punishment on the offender under "Tazir" despite the compromise arrived at between the heirs of the deceased and the accused.

Muhammad Akbar and another v. The State PLD 1996 Quetta 56 and Muhammad Nazir alias Jeera v. The State PLD 2001 Lah. 212 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 302(b)/109 & 311‑‑‑Criminal Procedure Code (V of 1898), S.345(2~‑‑‑Compounding of offence‑‑‑No proof regarding illicit relationship between the deceased persons was brought on record and only conspiracy was hatched to get rid of the deceased on the allegation of "Siah Kari" on the pretext of the "Ghairat"‑‑‑Murders of the deceased were committed in a brutal and shocking manner which fell within the ambit of "Fisad‑fil‑Arz" as envisaged under 5.311, P. P. C. ‑‑‑Compromise between the legal heirs of the deceased and the accused was accepted but in view of the circumstances the accused were convicted under S.311, P.P.C. to suffer 14 years' R.I. each as "Tazir" with the benefit of S.382.B, Cr.P.C.

Muhammad Akbar and another v. The State PLD 1996 Quetta 56 and Muhammad Nazir alias Jeera v. The State PLD 2001 Lah. 212 ref.

Muhammad Salahuddin Mengal for Appellant (in Criminal Appeal No.386 of 2000).

Akhtar Zaman, Addl.A.‑G. and Nasarullah Khan Azakzai for the Complainant (in Criminal Appeal No.386 of 2000).

Habib Jalib for Appellant (in Criminal Appeal No.4 of 2001).

Haji Akhtar Zaman, Addl.A.‑G. for the State (in Criminal Appeal No.4 of 2001).

Habib Jalib for Appellant (in Criminal Appeal No.8 of 2001).

Haji Akhtar Zaman, Addl.A.‑G. for the State (in Criminal Appeal No.8 of 2001).

Date of hearing: 9th October, 2001

PLD 2002 QUETTA HIGH COURT BALOCHISTAN 49 #

P L D 2002 Quetta 49

Before Aman‑ul‑Allah Khan and Fazal‑ur‑Rehman, JJ

MUHAMMAD ASHRAF and 4 others‑‑‑Appellants

Versus

THE STATE and others‑‑Respondents

Criminal Appeal No.135 and Murder Reference No.2 of 2001, decided on 27th November, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Presence of eye-witnesses at the place of incident was not disputed who had unequivocally stated that when the tight started accused inflicted knife injury on the vital part of the body of the deceased‑‑‑Although the accused might not be having any intention to murder the deceased, yet he had the knowledge that the injury inflicted by him was likely to cause death of the deceased‑‑‑Conviction of accused under S.302(b), P.P.C. was, therefore, upheld but his sentence of death was reduced to imprisonment for life in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Interested witness‑‑‑Mere relationship of a witness with the deceased does not make him an interested witness if otherwise his presence on the spot at the relevant time is proved, his credibility remains unshaken and his version inspires confidence and satisfies the conscience of the Court.

‑‑‑‑Ss. 302, 324, 147 & 149‑‑‑Appreciation of evidence‑‑‑Neither any charge under S.324, P.P.C. was framed nor anybody from the complainant side had received any injury at the hands of accused‑‑‑No specific role had been attributed to any of the accused and in the absence of common intention they could not be held responsible jointly except for their individual acts‑‑Incident had taken place at the spur of the moment‑‑‑One accused though was alleged to have been armed with a pistol, yet he had not used the same, nor any overt act was attributed to him except a "Lalkara" and he had played no role in the murder of the deceased‑‑‑Accused were acquitted in circumstances.

Shahabuddin v. The State PLD 1964 SC 177 ref.

Ehsanul Haq for Appellants (in Criminal Appeal No. 135 of 2001).

Ghulam Mustafa Mengal, A.A.‑G. for the State (in Murder Reference No.2 and Cr. A. No. 135 of 2001).

Ehsanul Haq for Respondents (in Murder Reference No.2 of 2001).

Amir Raza Naqvi for the Complainant (in Criminal Appeal No. 135 of 2001).

Date of hearing: 30th October, 2001.

PLD 2002 QUETTA HIGH COURT BALOCHISTAN 58 #

P L D 2002 Quetta 58

Before Tariq Mahmood and Ahmed Khan Lashari, JJ

MEHRAB KHAN and 4 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 103 of 2001, decided on 5th November, 2001.

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

‑‑‑‑S. 9(c)‑‑‑Appreciation of evidence‑‑‑Prosecution evidence on all the material particulars was consistent, reliable and convincing‑‑‑Accused had not specifically disputed the recovery of "Charas" from the vehicles being driven by them, rather the same was admitted by them ‑‑‑Charas was secretly placed in the specially designed beams for delivery to a specified person and the accused who were drivers/transporters of the vehicles could not ‑be assumed to be unaware of the same‑‑‑Accused were in conscious possession of the contraband item and the prosecution having established its case of possession and transportation of the offensive material, burden had shifted upon the accused to give a legally acceptable explanation, but the position taken by them was not consistent and they had been changing their plea to their convenience‑‑‑Ownership of the accused regarding the "Charas" was not necessary to be recorded as even transportation, despatch 'and delivery of the same was also an offence under the law‑‑‑Accused being incharge of a vehicle specially booked for a long journey must be saddled with necessary knowledge of its contents‑‑‑Control of accused over the vehicles carrying huge quantity of narcotics was sufficient to establish their involvement in its transportation‑‑‑Defence taken by accused was not plausible‑‑‑Conviction and sentence of accused were upheld in circumstances.

PLD 1993 FC 53; 1996 SCMR 1541; 1990 MLD 1199; 2000 SCMR 36; 1991 MLD 240; 1994 SCC (Cri.) 1433; Raghubirs' case AIR 1941 Pat. 177; Shamman's case 1985 PCr.LJ 8; PLD 1995 Kar. 105; 1983 PCr.LJ 1351; Nazir Hussain v. The State 1971 SCMR 404; Muhammad Shah v. The State PLD 1984 SC 278; Said Shah v. State PLD 1987 SC 288; Zaheeruddin's case PLD 1988 FSC 29; Nadir Khan v. State 1988 SCMR 1899: Naik Muhammad v. State PLD 1995 SC 516; Gul Muhammad v. State 1996 PCr.LJ 1856; Qurban and others v. The State 1996 SCMR 1894; Shah Wali and another v. The State PLD 1993 SC 32; Sherzada v. The State 1993 SCMR 149; State v. Banda Gul 1993 SCMR 311; Adil Ahmed's case 1991 SCMR 1951: Rab Nawaz v. State PLD 1994 SC 858; 1984 PCr.LJ 1357; Shawal Khan's case 1998 SCMR 1107; Asghar Ali v. The State 1996 SCMR 1541; Munawar Hussain v. State 1993 SCMR 785 and PLD 1996 SC 305 ref.

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

‑‑‑‑Ss. 6, 7 & 29‑‑‑Possession‑‑‑Word "possession" has been used in the Control of Narcotic Substances Act, 1997, in a wider sense so as to include transport, despatch and delivery‑‑‑Transportation within the country is also prohibited and the finding relating to the ownership is not required.

Sanjay Dutt's case 1994 SCC (Cri.) 1433 ref.

‑‑‑‑S. 29‑‑‑Burden to prove offence‑ Recovery ‑‑‑Possession‑‑Presumption‑‑‑Presumption from possession of illicit articles‑‑‑Section 29 of the Control of Narcotic Substances Act, 1997, does not absolve the prosecution of its primary duty to prove its case beyond doubt‑‑‑Burden is shifted to the accused only after the prosecution has established the recovery beyond reasonable doubt.

Raghubir's case AIR 1941 Pat. 177; Shamman's case 1985 PCr.LJ 8: PLD 1995 Kar. 105 and 1983 PCr.LJ 1351 ref.

Ehsanul Haq for Appellants.

Akhtar Zaman, Addl. A.‑G. for the State.

Date of hearing: 5th November, 2001.

PLD 2002 QUETTA HIGH COURT BALOCHISTAN 76 #

P L D 2002 Quetta 76

Before Raja Fayyaz Ahmed, C J

MUHAMMAD YOUSAF and another‑‑‑Petitioners

versus

SAHIB JAN‑‑‑Respondent

Civil Revision No.378 of 2001, decided on 6th May, 2002.

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

‑‑‑‑S. 96(2) & O.IX, R.13---Limitation Act (IX of 1908), Arts. 152 & 164‑‑‑Ex parte decree, Setting aside of Remedies--Limitation‑‑Trial Court passed ex parte order on 23‑6‑2001 and ex parte decree on 6‑7‑2001‑‑‑ Defendant's application under OAX, R.13, C.P.C., for setting aside such order and decree was dismissed by Trial Court on 15-9-2001--‑Appeal filed on 1‑10‑2001 against ex parte order and ex parte decree was accepted by Appellate Court‑‑‑Contention of plaintiffs was that such appeal was barred by time‑‑‑Validity‑‑‑Two alternatives were available to defendant i.e. either to file appeal against ex parte order and ex parte decree or to tile an application in Trial Court seeking setting aside of ex parte decree and ex parte order‑‑Defendant had chosen to avail the latter remedy by filing application under O. IX, R.13, C.P.C., and after its rejection, he had filed appeal within prescribed period of limitation‑‑‑Same being a continuity of proceedings permissible under law appeal filed by defendant challenging the last‑mentioned order as well as ex parte decree and ex parte order would not be treated as barred by time provided the appeal as in the present case, had been filed within time from date of order passed on application filed under O.IX, R.13, C.P.C.

(b) Administration of justice‑‑‑

‑‑‑‑ Disputes between parties as a general rule, is always to be adjudicated on merits in absence of exceptional reasons.

‑‑‑‑Penal provisions of law are to be strictly followed.

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

‑‑‑‑O. IX, R.13 & S.115‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑Revision‑‑‑Scope‑‑‑Ex parte decree, setting aside of‑‑Suit for declaration and permanent injunction‑‑‑Trial Court on 23‑6‑2001 while proceeding ex parte against defendant adjourned the case to 6‑7‑2001 for orders‑‑‑Defendant on 24‑5‑2001 filed two applications seeking thereby setting aside of ex pane order and production of documents etc.‑‑‑Trial Court without disposing of said two applications passed ex parte decree on 6‑7‑2001‑‑‑Defendant's application for setting aside ex parte order and ex parte decree was rejected by Trial Court with observations that on 23‑6‑2001, a telegram had been received from defendant's counsel seeking adjournment, but as ex parte order had already been passed and case was fixed for orders on 6‑7‑2001, but during intervening period i.e. till date on which ex parte decree was passed, no application had been filed for recalling ex parte order, which conduct showed lack of interest on the part of defendant, therefore, request made in telegram was declined resulting into rejection of said application‑‑‑Appellate Court accepted defendant's appeal and set aside ex parte order and ex parte decree‑‑‑Validity‑‑‑Such an approach on the part of Trial Court meant and designed for administration of justice appeared to be highly. unjust, unfair and inequitable to refuse to set aside ex parte order and ex pane decree merely because during intervening period i.e. prior to passing of ex parte decree, application for setting aside ex parte order had not been filed and more particularly for the reason that case for the first time had been fixed for defendant's evidence on 23‑6‑2001, when he failed to appear in Court and order taking ex parte proceedings was passed and case, was adjourned to 6‑7‑2001‑‑‑Trial Court while disposing of application under O.IX, R.13, C. P. C. , had not considered the ground of sickness of defendant mentioned in his application dated.24‑5‑2001‑‑‑Trial Court had rejected application under O.IX, R.13, C.P.C., without applying its mind to the facts of the case regarding "a sufficient cause" shown as well as already existing on record‑‑Trial Court had ignored the well‑recognised principles of administration of justice that dispute between parties always to be adjudicated on merits as a general rule in absence of exceptional reasons and that penal provisions of the law to be strictly followed‑‑‑No impropriety or illegality was pointed our in impugned judgment, which was supported by reasons borne on record, thus, not open to interference by Court in exercise of revisional jurisdiction‑‑‑Revision petition was dismissed in circumstances.

Azizullah Kakar for Petitioners.

Mujeeb Ahmed Haste for Respondent.

Date of hearing: 30th April, 2002.

PLD 2002 QUETTA HIGH COURT BALOCHISTAN 84 #

P L D 2002 Quetta 84

Before Aman‑ul‑Allah Khan and Fazal‑ur‑Rehman, JJ

COLLECTOR OF CUSTOMS, SALES TAX AND CENTRAL EXCISE, QUETTA ‑‑‑Appellant

versus

Messrs PAKISTAN PETROLEUM LIMITED‑‑‑Respondent

Sales Tax Appeal No.3 of 2000, decided on 8th April, 2002.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5‑‑‑Condonation of delay‑‑‑Delay of each day has to be satisfactorily explained as valuable right accrues to opposite‑party by lapse of time.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Condonation of delay‑‑‑No preferential treatment to Government‑‑While computing period of limitation, no preferential treatment can be given to Government, which as party to lis, has to be treated at par with other litigants‑‑‑Government may change such law, if despite possessing enormous resources is not satisfied with the law.

Mayar Khan v. Bakht Bibi and others 1974 SCMR 423; Muhammad Hussain and others v. Settlement Commissioner and others 1975 SCMR 304; Commissioner of Income Tax v. Rais Pir Ahmed Khan 1981 SCMR 37; Ali Ahmed and another v. Fazal Hussain and others 1983 SCMR 1239; Federation of Pakistan v. Niaz Ahmed 1997 SCMR 959; Central Board of Revenue, Islamabad through Collector Customs v. M/s. Raja Industries Pvt. Ltd. through G.M. and 3 others 1998 SCMR 307 and Government of Balochistan Public Health Engineering Department through Secretary v. Muhammad Ibrahim 2000 SCMR 1028 ref.

‑‑‑‑S. 5‑‑‑Central Excises Act (I of 1944), Ss.35 & 36‑‑‑Condonation of delay‑‑‑Time‑barred appeal filed by Government‑‑‑Explanation given for such delay was that office did not inform appellant about receipt of copy of impugned judgment‑‑Validity‑‑‑Such explanation was not sufficient to condone delay‑‑High Court repelled the contention.

(d) Discretion‑

‑‑‑‑ Discretion has to be exercised in a judicious, fair and reasonable manner.

(e) Appeal‑

‑‑‑‑ Right of appeal is one of the most valuable rights vested in an affected person‑‑‑No one can be deprived of availing such remedy except in accordance with law.

(f) Central Excises Act (I of 1944)‑‑

‑‑‑‑Ss. 35 & 36‑B‑‑‑Appeal before Tribunal‑‑‑Maintainability‑‑‑Non‑deposit of duty and penalty by respondent during pendency of its appeal before Tribunal‑‑‑Effect‑‑‑Power to dispense with deposit of entire amount was discretionary with Appellate Tribunal‑‑‑Discretion had to be exercised in a judicious, fair and reasonable manner‑‑‑No objection regarding non‑deposit of amount as ordered by Authority had been raised before Tribunal‑‑Tribunal had exercised discretion in favour of respondent, whereby no prejudice had been caused to appellant‑‑‑Objection was not sustainable.

(g) Words and phrases‑‑

---Liable"‑‑‑Meaning.

(h) Words and phrases‑‑

‑‑‑‑"Liability"‑‑‑Meaning.

(i) Central Excises Act (I of 1944)‑‑

‑‑‑‑S. 3‑B‑‑‑Levy of additional duty‑‑‑Non‑payment of duty in time‑‑Section 3‑B of the Central Excises Act does not require levy of additional duty and penalty invariably, when assessee is unable to pay the duty in time.

(j) Central Excises Act (I of 1944)‑‑

‑‑‑‑Ss. 3, 3‑B, 35‑B & 36‑C‑‑‑Levy of additional duty and penalty for short payment of duty‑‑‑Appellate Tribunal remitted the penalty‑‑‑Contention of' appellant was that provisions of S.3‑B of the Act being mandatory, Authority had rightly imposed the penalty, which the Tribunal had no jurisdiction to remit‑‑‑Validity‑‑‑Imposition of. penalty under S.3‑B of the Central Excises Act was in the discretion of Additional Collector, Excise and Sales Tax, who had proceeded on misconception of law and had imposed penalty being under impression that since sales tax had not been paid, penalty was to be imposed compulsorily‑‑‑Section 3‑B of the Act did not require levy of additional duty and penalty invariably, when assessee was unable to pay duty in time‑‑ Imposition of additional duty was discretionary with Additional Collector‑‑Discretion had to be exercised reasonably, equitably and fairly‑‑‑Additional Collector was under legal obligation to have considered the reasons offered by respondent for not paying the amount in time‑‑‑Penalty had been imposed without considering explanation of respondent‑‑‑Tribunal had rightly remitted the penalty‑while, finding that non‑payment of dues was neither deliberate nor wilful on the part of respondent‑‑‑High Court dismissed the appeal in circumstances.

Shamroz Khan and another v. Muhammad Amin and others PLD 1978 SC 89 ref.

K.N. Kohli, D.A.‑G. for Appellant.

Muhammad Riaz Ahmed and Asif Fateh Sheikh for Respondent.

Date of hearing: 13th March, 2002.

PLD 2002 QUETTA HIGH COURT BALOCHISTAN 92 #

P L D 2002 Quetta 92

Before Raja Fayyaz Ahmed, C J

SECRETARY‑GENERAL TAMEER‑E‑NAU

BALOCHISTAN, QUETTA and another‑‑‑Petitioners

versus

AMIR MUSTAFA‑‑‑Respondent

Civil Revision No.392 of 2001, decide don 6th May, 2002.

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

‑‑‑‑O. XLI, R. 33‑‑‑Appellate Court‑‑‑Administration of justice‑‑Requirements‑‑‑Points urged by parties or their counsel during arguments‑.‑Duty of Appellate Court to consider and decide such points in accordance with law and in the light of facts of each case for safe administration of justice so that litigants enjoy absolute confidence in Court without suffering any feeling that they have not been dealt with justly, fairly and equitably.

(b) Administration of justice‑

‑‑‑‑ Justice should not only be done, but the same should be seen to have done to the parties.

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.XLI, R.23‑‑‑Suit for declaration and reinstatement in service filed by an employee of a private school‑‑‑Trial Court dismissed the suit being not maintainable under S.42 of Specific Relief Act, 1877‑‑‑Appellate Court set aside the judgment/decree and remanded the case of Trial Court for its decision after recording evidence of the parties‑‑‑Validity‑‑‑Trial Court in view of pleadings of the parties had framed legal issues as well as issues on merits‑‑‑Trial Court had heard the parties on legal issues only apparently for the reason that suit could conveniently be disposed of finally by resolving legal issues‑‑‑Trial Court had dismissed the suit by resolving legal issues against the plaintiff‑‑Appellate Court in such circumstances was bound to confine itself only to examine as to whether legal issues had been decided by Trial Court in accordance with law in the light of pleadings of the parties and undisputed documents appended therewith‑‑‑Entering into merits of the case by Appellate Court was not permissible in view of dismissal of suit on legal issues‑‑‑Appellate Court had wrongly exercised its jurisdiction and had acted with grave illegality and impropriety by ignoring the glaring fact that suit had been dismissed as being incompetent and not maintainable only by resolving legal issues‑‑‑Appellate Court had omitted to consider such a substantial aspect of the case rendering its judgment/decree as not sustainable‑‑‑High Court accepted the revision petition, set aside the impugned judgment/decree and remanded the case to Appellate Court to decide the same afresh in accordance with law.

PLD 1984 SC 194; PLD 1981 SC 224 and 1993 SCMR 346 ref.

Raja M. Afsar for Petitioner.

Ghulam Hussain (absent) for Respondent.

Date of hearing: 25th April, 2002.

PLD 2002 QUETTA HIGH COURT BALOCHISTAN 97 #

P L D 2002 Quetta 97

Before Aman‑ul‑Allah Khan and Ahmed Khan Lashari, JJ

QADIR BAKHSH‑‑‑Appellate

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 150 and Criminal Revision No.71 of 2001, decided on 26th March, 2002.

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

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), S.161‑‑‑Statement of prosecution witnesses recorded at belated stage under S.161, Cr.P.C.‑‑Evidentiary value‑‑‑Such delay would not be fatal to prosecution case‑‑Where such delay was unexplained and names of witnesses had been introduced at a late stage purposely to implicate the accused, then such delay would adversely affect prosecution case and no explicit reliance could be placed on their statements.

Asfandyar Wali v. The State PLD 1978 Pesh.38 and Abdul Khaliq v. The State 1996 SCMR 1553 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 303/34‑‑‑Appreciation of evidence‑‑‑Deceased succumbed to injuries after forty days of the occurrence‑‑‑Eye‑witnesses were not mentioned in F.I.R. and. their statements were recorded after the death of deceased without giving any plausible explanation for such delay‑‑‑Eye‑witnesses neither knew as to how injuries were received by deceased nor they attributed any specific injury to accused, and their statements were in conflict with medical evidence‑‑‑Case set up by prosecution was very improbable as motive stated by eye‑witnesses was not supported by site plan of the occurrence‑‑‑Taking place of incident inside the house of deceased could not be believed as no blood‑stained earth was collected therefrom‑‑‑Prosecution had suppressed material facts and had not come with whole truth, which would affect its case‑‑‑Non‑examination of a very material and important witness, who had informed the complainant about this incident, created a dent in prosecution case as presumption would be that had he appeared, he would not have supported its case‑‑‑Prosecution had failed to prove its case against accused beyond any shadow of doubt‑‑‑Accused was acquitted in circumstances.

Saeed Muhammad Shah v. The State 1993 SCMR 550; Amir Zaman v. Mehboob and others 1985 SCMR 685; Haji Bakhsh v. The State PLD 1963 Kar. 805; Qaim Din and others v. The State 1971 PCr.LJ 229; Fazla and another v. State PLJ 1960 Lah. 373; Muhammad Anwar v. The State 1999 SCMR 729 and Ahmed Yar and others v. The State 1998 SCMR 715 ref.

Kamran Murtaza for Appellant (in Criminal Appeal No. 150 of 2001).

Ghulam Mustafa Mengal, A.A.‑G. for the State (in Criminal Appeal No. 150 of 2001).

Ghulam Mustafa Mengal, A.A.‑G. for Appellant (in Criminal Revision No.71 of 2001).

Kamran Murtaza for Respondent (in Criminal Revision No, 2001).

Date of hearing: 26th February, 2002.

Supreme Court

PLD 2002 SUPREME COURT 1 #

P L D 2002 Supreme Court 1

Present: Irshad Hasan Khan, CJ., Ch. Muhammad Arif Qazi Muhammad Faroog and Mian Muhammad Ajmal, JJ

In re: TO REVISIT "THE STATE V. ZUBAIR" [PLD 1986 SC 173]

Suo Motu Criminal Review No.9 of 2001, decided on 24th September, 2001.

Criminal Procedure Code (V of 1898)‑‑-

‑‑‑‑Ss. 497 & 498‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑‑Bail‑‑‑Suo motu criminal review under Art. 184(3) of the Constitution by the Supreme Court‑‑‑Supreme Court, in State v. Zubair PLD 1986 SC 173, inter alia had observed that if a Judge of a High Court had heard a bail application of an accused person, all subsequent applications for bail of the same accused or in the same case, should be referred to the same Bench/Judge wherever he is sitting and in case it was absolutely impossible to place the second or subsequent bail application before the same Judge who had dealt with the earlier bail application of the same accused or in the same case, in such cases, the Chief Justice of the concerned High Court may order that it be fixed for disposal before any other Bench/Judge of that Court‑‑‑Supreme Court, taking suo motu notice of the difficulties arising out of the strict implementation of the ratio in the State v. Zubair observed that the spirit underlying the said case which still held the field was not intended to create difficulties/bottlenecks or to work prejudicially to the interest of all concerned‑‑‑Chief Justice concerned in such a situation was to examine whether in any of the given case, due to non‑availability of the Bench/Judge who had earlier dealt with the bail application, owing to exigencies of service or any other sufficient cause, departure be made in the larger interest of justice and refer the cause to another Bench/Judge for reasons to be recorded in writing; same procedure was to he followed at the Benches where similar orders may be passed by the Senior Judge‑‑‑‑Such arrangement was directed by the Supreme Court to be followed as an interim measure till the final disposal of suo motu criminal review, after notice to all Advocates‑General of the Provinces and Registrars of the High Courts who, after seeking instructions from the respective Chief Justices, shall submit reports in regard to the difficulties being faced in implementation of the ratio in Zubair's case.

In the State v. Zubair (PLD 1986 SC 173), it was inter alia, observed by the Supreme Court that if a Judge of a High Court had heard a bail application of an accused person, all subsequent applications for bail of the same accused or in the same case, should be referred to the same Bench/Judge wherever he is sitting. In case it was absolutely impossible to place the second or subsequent bail application before the same Judge who had dealt with the earlier bail application of the same accused or in the same case, in such cases, the Chief Justice of the concerned High Court may order that it be fixed for disposal before any other Bench/Judge of that Court.

Supreme Court, in view of difficulties arising out of the strict implementation of the ratio in Zubair's case took suo motu action in the matter under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, and directed that a case be registered and listed for preliminary hearing before the Court.

The spirit underlying Zubair's case which still holds the field was not intended to create difficulties/bottlenecks or to work prejudicially to the interest of all concerned. If it is so, it is for the Chief Justice concerned to examine whether in any of the given case, due to non‑availability of the Bench/Judge, who had earlier dealt with the bail application, owing to exigencies of service or any other sufficient cause, departure has to be made in the larger interest of justice and refer the cause to another Bench/Judge for reasons to be recorded in writing. The same procedure should be followed at the Benches where similar orders may be passed by the Senior Judge. Such arrangement be followed as an interim measure till the final disposal of the Suo Motu Criminal Review, after notice to all Advocates‑General of the Provinces and Registrars of the High Courts who, after seeking instructions from the respective Chief Justices, shall submit reports in regard to the difficulties being faced in implementation of the ratio in Zubair's case.

The State v. Zubair PLD 1986 SC 173 considered.

Mir Khan v. The State 1999 SCMR 790; Farid v. Ghulam Hassan 1968 SCMR 924; Muhammad Khan v. Muhammad Aslant 1971 SCMR 789; Muhammad Khan v. Sanaullah PLD 1971 SG 324; Khan Beg v. Sajawal PLD 1984 SC 341; State v. Zubair PLD 1986 SC 173; Muhammad Taj v. Muhammad Akhtar 1997 SCMR 1336; Roshan v. State 1989 PCr.LJ 609; Badal v. State 1990 PCr`LJ^31 and Muhammad Mustaqeem v. State 1990 PCr LJ 1216 mentioned.

Date of hearing: 24th September, 2001.

PLD 2002 SUPREME COURT 5 #

P L D 2002 Supreme Court 5

Present: Sh. Riaz Ahmad, Munir A. Sheikh arid Rana Bhagwandas, JJ

GOVERNMENT O: PUNJAB, COLONIES DEPARTMENT, LAHORE and others‑‑‑Appellants

versus

MUHAMMAD YAQOOB ‑‑‑ Respondent

Civil Appeals Nos.2233 and 2234 of 1998, decided on 10th September, 2001.

(On appeal from the judgment dated 3-5‑1995 of the Lahore High Court, Lahore passed in W. Ps. Nos. 1049 of 1991 and 3221 of 1995).

(a) Pakistan (Administration of Evacuee Property) Act (XII of 1957)‑--

‑‑‑‑S. 25(2)‑‑‑Notification No.186‑88/1316‑CIV, dated 12‑6‑1988‑‑Exchange of State land with evacuee land‑‑‑Allottee in possession of evacuee land‑‑‑Proposal of allotment confirmed in favour of allottee‑‑‑Proposal of the Authorities regarding exchange of land in possession of the allottee was assailed before High Court on the ground that the proposal of the Authorities was against the provisions of Notification No. 186‑88/1316‑CIV, dated 12‑6‑1988‑‑‑Plea raised by the Authorities was that the allottee was not in possession of the land‑‑‑Reliance of the Authorities was on the report of field staff ‑‑Validity‑‑ ‑Allottee in his Constitutional petition which was supported by affidavit pleaded that he was in possession of the land‑‑‑Where the land was proposed for the allotment in 1953 and the proposal was accepted/confirmed on 29‑5‑1993, initial presumption was that the allottee was in possession thereof which could be rebutted by strong evidence by the Authorities which must be available with them‑‑‑Mere reliance on report of the field staff in order to rebut such strong presumption was not sufficient from which Court was justified to infer that the allottee in fact was in possession of the land‑‑‑Neither any affidavit of any member of the field staff to counter the affidavit of the allottee nor the report of the field staff was produced before High Court ‑‑‑Allottee had fulfilled all the conditions mentioned in the Notification No.186‑88/1316‑CIV, dated 12th June, 1988 and he was entitled to the benefit of the Notification‑‑‑Supreme Court directed the Authorities to pass formal order of adjustment of alternate land in the name of the allottee in accordance with law ‑‑‑Appeal was allowed accordingly.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1957)---

‑‑‑‑S. 2‑‑‑Pending proceedings‑‑‑Effect‑‑‑Proceedings under the repealed laws would be decided as if those laws had not been repealed‑‑‑Scope of pending proceedings was also extended to cases which would be remanded by the High Court and the Supreme Court‑‑‑Cases so remanded were to be decided according to the repealed laws by Notified Officer.

Nawab Din v. Member, Board of Revehue (Settlement and Rehabilitation), Punjab, Lahore and 4 others PLD 1979 SC 846; Aligarh Muslim University Old Boys Cooperative Housing Society Ltd. v. Muhammad Hismauddin Ansari and 4 others 1993 SCMR 1062 and Nawabzada Zafar Ali Khan and others v. Chief , Settlement. Commissioner/Member, Board of Revenue, Punjab, Lahore and others 1999 SCMR 1719 ref.

‑‑‑‑S. 2‑‑‑Term "pending proceedings" as used in S.2‑‑‑Object and scope‑--"Pending proceedings" would mean an initial step taken as contemplated under the settlement laws for allotment of land against verified claim of the claimants but the same did not finalize before the repeal of the evacuee laws.

(d) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑Ss. 2 & 3‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Evacuee property‑‑‑Pending proceedings---Issuance of direction by High Court in exercise of jurisdiction under Art. 199 of the Constitution for allotment of land under settlement laws‑‑‑Validity‑‑Where the case of the respondent was not a case of pending proceedings within the contemplation of provisions of Ss.2 & 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, the direction issued by the High Court was violative of law which could not have been given under Art.199 of the Constitution‑‑‑High Court could direct a person performing functions in connection with the affairs of the Federal Government to do what law required him to do whereas direction issued in the present case was to the contrary i.e. to do what law did not require him to do‑‑‑Judgment passed by High Court in Constitutional petition was set aside by Supreme Court.

Ch. Mushtaq Masood. Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate‑on‑Record for Appellants.

Sharifuddin Pirzada, Senior Advocate Supreme Court, Malik Azam Rasool, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on-Record for Respondents.

Dates of hearing: 7th and 8th June, 2001.

PLD 2002 SUPREME COURT 13 #

P L D 2002 Supreme Court 13

Present: Sh.Riaz Ahmad, Syed Deedar Hussain Shah and Javed Iqbal, JJ

ARIF GHAFOOR‑‑‑Petitioner

versus

MANAGING DIRECTOR, H.M.C., TEXILA and others‑‑‑Respondents

Civil Petition for Special Leave to Appeal No.968 of 2000, decided on 11th July, 2001.

(On appeal, from the order dated 27‑4‑2000 passed by Federal Service Tribunal, in Appeal No. 1521(R of 1999).

(a) Civil service‑‑

‑‑‑‑'Disciplinary proceedings' and 'crtmina proceedings' as used in service matters)‑‑‑Distinguished‑‑‑Both the proceedings cannot be termed as synonymous and interchangeable‑--'Disciplinary proceedings' and 'criminal proceedings' are quite distinct from each other having altogether different characteristics and there is nothing common between the adjudicative forums by whom separate prescribed procedure and mechanism is followed for adjudication and both the forums have their own domain of jurisdiction‑‑Decision of one forum would have no bearing on the decision of other forum in any manner whatsoever and it would be a misconceived notion to consider the acquittal in criminal trial as an embargo against disciplinary proceedings.

1996 SCMR 315 ref.

(b) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Appeal before Service Tribunal‑‑‑Acquittal from criminal case‑‑Scope‑‑‑Where the acquittal was not on merits, the dictum laid down by Supreme Court in 2001 SCMR 269 and 1998 SCMR 2003 could not he made applicable.

2001 SCMR 269 and 1998 SCMR 2003 distinguished.

‑‑‑‑Art. 212(3)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Dismissal from service‑‑‑Disciplinary proceedings were initiated in accordance with law‑‑After recording evidence, holding a comprehensive inquiry and affording proper opportunity of hearing to the civil servant, major penalty was imposed by taking into consideration all pros and cons of the matter including the nature of allegations and past conduct of the civil servant‑‑Appeal before Service Tribunal was dismissed‑‑‑Validity‑‑‑Action taken by the Competent Authority was neither whimsical 'nor arbitrary in nature, but was based on sound reasoning concrete and worthy of credible evidence and being unexceptional did not call for interference and the Service Tribunal had rightly declined to do so‑‑‑Leave to appeal was refused.

(d) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 212(3)‑‑‑Finding of fact‑‑‑Interference by Supreme Court‑‑‑Finding of fact recorded by Service Tribunal on the basis of record and evidence before the Service Tribunal cannot be interfered by Supreme Court.

Ch. Muhammad Azam v. The Chief Engineer, Irrigation and others 1991 SCMR 255 and Muhammad Nawaz v. Divisional Forest Officer, Jauharabad and 2 others 1982 SCMR 880 ref.

Ibrahim Satti, Advocate. Supreme Court and Ejaz M. Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 11th July, 2001.

PLD 2002 SUPREME COURT 16 #

P L D 2002 Supreme Court 16

Present: Sh. Riaz Ahmad, Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

MIR ZAMAN and another---Appellants

versus

QURB.AN HUSSAIN --- Respondent

Civil Appeal No. 159 of 1998, decided on 20th September, 2001.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 20-5-1997 passed in Civil Revision

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

---.S. 8(2)---Constitution of Pakistan (1973), Art.185(3)---Oustees from Islamabad area on account of construction of the capital---Notification excluding areas purchased by the oustees---Bar to exercise right of preemption---Contention of the vendees was that as soon as the Notification was issued a vested right was created in their favour which could not be taken away merely by the fact that the suit for pre-emption was decided on a date after two years of issuance of the Notification---Leave to appeal was granted by Supreme Court to consider the contention raised by the vendees.

Muhammad Zulfiqar v. Ghulam Khan 1991 SCMR 292 and Fazal Elahi v. Dewan Ali 1984 SCMR 1404 ref.

(b) Punjab Preemption Act (I of 1913)---

----S. 8(2)---Oustees from Islamabad area on account of construction of the capital---Notification creating bar to exercise right of pre-emption--Applicability---After issuance of the Notification, the right of pre-emption against the sales made in favour of the persons who were certified oustees of Islamabad stood extinguished and after the loss of pre-emptive right of the pre-emptor, the pending pre-emption suit could not proceed any further as right to sue ceased to exist any more---Where decree had not been passed, the suit was liable to dismissal for having become infructuous.

Muhammad Zulfiqar v. Ghulam Khan 1991 SCMR 292; Fazal Elahi v. Dewan Ali 1984 SCMR 1404; Bibi Jan v. R.A. Monny PLD 1961 SC 69 and Shakar Khan v. Muhammad .Lal PLD 1978 SC (AJ&K) 126 ref.

----Ss. 4, 8(2) & 21---Right of pre-emption, exercise of---Oustees from Islamabad area on account of construction of .the capital---Notification creating bar to exercise right of pre-emption---Vendees were oustees from Islamabad and certificate in that respect was duly. issued by the Authorities--During pendency of pre-emption suit against the vendees, the Notification was issued by the Government---Suit was decreed by the Trial Court, whereas the Appellate Court allowed the appeal and dismissed the suit on the ground that the Notification was applicable in the case---Judgment and decree passed by the Appellate Court was set aside by High Court in exercise of revisional jurisdiction---Plea raised by the pre-emptor was that exemption under the Notification was not available to the vendee on the date of sale of the suit land, date of institution of the suit and the date on which the decree was passed---Validity---Notification, in the present case, came into effect on the date it was published, therefore, on extinguishment of pre-emptive right of the pre-emptor, the right to sue or to proceed to sue a right in a pending suit ceased to exist irrespective of the fact whether the sale had taken place before the 14otification, and therefore, and in consequence, the suit was liable to be dismissed---Where no decree was passed the Notification was applicable and rendered the pre-emption suit against the certified oustees of Islamabad, to be infructuous---Judgment and decree passed by High Court was set aside and that of the Appellate Court was rostored, by the Supreme Court in appeal.

Muhammad Zulfiqar v. Ghulain Khan 1991 SCMR 292; Fazal Elahi v. Dewan Ali 1984 SCMR 1404; Bibi Jan v. R.A. Monny PLD 1961 SC 69 and Shakar Khan v. Muhammad I .al PLD 1978 SC (AJ&K) 126 ref.

(d) Pre-emption---

----Right of pre-emption ---Pre-condition---Such righ must persist till passing of decree but if such right is withdrawn before passing of decree, the sane adversely hits the suit---Essential for pre-emptor to retain his right till the date of decree in order to be successful.

Bibi Jan v. R.A. Monny PLD 1961 SC 69 rei.

Muhammad Younis Bhatti, Advocate Supreme Court and Ijaz, Muhammad Khan, Advocate-on-Record for Appellants.

Bashir Ansari, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Respondent.

Date of hearing: 2Ah April, 2001.

PLD 2002 SUPREME COURT 25 #

P L D 2002 Supreme Court 25

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh, and Rana Bhagwandas, JJ

C.A. No.980 of 1998

NISAR AHMAD KHAN and others‑‑‑Appellants

versus

COLLECTOR, LAND ACQUISITION; SWABI and others‑‑‑Respondents

(On appeal from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A. No.88/1994).

C.A. No.987 of 1998

GOVERNMENT OF N.‑W‑.F.P. and others‑‑‑Appellants

versus

Haji GHULAM NABI and others‑‑‑Respondents

(On appeal from judgment of the 'Peshawar High Court dated 13‑‑8‑1997 passed in R.F.A. No.87/1994).

C.A. No.988 of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Appellants

versus

Malik AMANULLAH and others‑‑‑Respondents

(On appeal from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A No.88/1.994).

C.A. No.989 of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Appellants

versus

SHAMSHAD and others‑‑‑Respondents

(On appeal from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A. No.89/1994).

C.A. No.990.of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑ ‑Appellants

versus

ABDUL GHANI and others‑ ‑‑Respondents

(On appeal. from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A. No.90/1994).

C.A. No.991 of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Appellants

Versus

KHALID HUSSAIN and others‑‑‑Respondents

(On appeal from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A. No.91/1994).

C.A. No.992 of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Appellants

versus

ABDUL KHALIQ and others‑‑‑Respondents

(On appeal froth judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A. No.9211994).

C.A. No.993 of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Appellants

versus

NAWAB KHAN‑‑‑Respondent

(On appeal. from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A. No.9311994).

C.A. No.994 of 1998.

GOVERNMENT OF N.‑W.F‑.P. and others‑‑‑Appellants

versus

NAWAB KHAN‑‑‑Respondent

(On appeal from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A. No.95/1994).

C.A. No.995 of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Appellants

versus

ABDUL GHANI and others‑‑‑Respondents

(On appeal from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R:F.A. No.100/1994).

C.A. No.996 of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Appellants

versus

Malik AMANULLAH and others‑‑‑Respondents

(On appeal from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A. No.101/1994).

C.A. No.997 of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Appellants

versus

SHAMSHAD and others‑‑‑Respondents

(On appeal from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A. No.102/1994).

C.A. No.998 of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Appellants

versus

KHALID HUSSAIN and others‑‑‑Respondents

(On appeal from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A No.6/1995).

C.A. No.999 of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Appellants

versus

HABIBULLAH and others‑‑‑Respondents

(On appeal from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A. No.7/1995).

C .A. No. 1000 of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Appellants

versus

NAWAB KHAN and others‑‑‑Respondents

(On appeal from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A. No.8/1995).

C.A. No.1001 of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Appellants

versus

SHAMSHAD and others‑‑‑Respondents

(On appeal from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A. No.9/1995).

C. A. No. 1002 of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Appellants

versus

NAWAB KHAN and others‑‑‑Respondents

(On appeal from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R. F. A. No.10/1995).

C.A. No. 1003 of 1998

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Appellants

versus

Haji QHULAM NABI and others‑‑‑Respondents

(On appeal from judgment of the Peshawar High Court dated 13‑8‑1997 passed in R.F.A. No. 1 1/1995).

Civil Appeals Nos.980 and 987 to 1003 of 1998, decided on 17th September, 2001.

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

‑‑‑‑S. 23‑‑‑Compensation‑‑‑Enhancement‑‑‑Fair market value‑‑?Determination of‑‑‑Being dissatisfied with the award, reference was made to .the Referee Court‑‑‑Revenue Court, taking into consideration the oral as well as documentary evidence on the question of fair market value of the lands compulsorily acquired by the Government, enhanced the compensation and the same was maintained by High Court‑‑‑Validity‑‑‑Courts had examined the evidence of revenue officials, land owners and average sale price of lands similarly situated and in identical use during the period when the lands were acquired‑‑‑Both the Courts below were justified in enhancing the amount of compensation for different categories of land‑‑‑Where the findings were based on proper appreciation of evidence as also on due consideration of the relevant material placed on record, fair market value as determined by High Court did not suffer from any legal infirmity or misappreciation of material facts‑‑‑Guidelines for determination of the market value of land for payment of compensation for compulsory acquisition of land by Government provided.

Murad Khan v. Land Acquisition Collector, Peshawar 1999 SCMR 1647; Haji Fateh Khan v. Government of N.‑W.F.P. PLD 1997 Pesh. 24; Muhammad Yaqoob v. Collector, Land Acquisition 1997 SCMR 1670 and Muhammad Mushtaq Ahmad Khan v. Assistant Commissioner, Sialkot PLD 1983 Lah. 178 ref.

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

‑‑‑‑Ss.4 & 23‑‑‑Compulsory acquisition of land ‑‑‑Compensation‑‑‑Fixation‑‑?Duty of Court‑‑‑Where lands are acquired not through mutual negotiations but under the State power conferred upon the State functionaries the land owners are entitled to maximum possible benefit‑‑‑Courts have to be liberal and generous in fixing the quantum of compensation based on different considerations so that neither a landowner is deprived of his due rights nor the acquiring agency is unduly burdened in the transaction.

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Arts.23 & 24‑‑‑Acquisition of land‑‑‑Object and scope‑‑‑Private lands are acquired under the provisions of Land Acquisition Act, 1894' for public purpose without consent of the owners and the paramount consideration behind the scheme appears to be the welfare of the people at large‑‑‑Object behind the legislative dispensation is not to deprive the landowners of their Constitutional right to acquire, hold and dispose of property‑‑‑Such rights are guaranteed under Arts. 23 & 24 of the Constitution providing therein that no person shall be deprived of his property save in accordance with law and no property shall be compulsorily acquired for a public purpose except by, the authority of law and compensation thereof.

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

‑‑‑‑S.. 23(2)‑‑‑Compulsory acquisition charges‑‑‑Rate of‑‑‑Referee Court awarded 25 % compulsory acquisition charges‑‑‑Land was originally acquired by Water and Power Development Authority and the Authority was replaced by Peshawar Electric Supply Corporation‑‑‑Where the land was acquired in the year 1990 and the Corporation acquired the status of limited company in November, 1998, the provision of S.23(2) of the Land Acquisition Act, 1894, might not be applied retrospectively‑‑‑High Court had rightly modified the rate of compulsory acquisition charges and reduced the same from 25% to 15%‑‑‑Supreme Court declined to interfere with the order passed by High Court.

Collector, Land Acquisition v. Muhammad Said 2001 SCMR 1032 rel.

M. Zahoor Qureshi Azad, Advocate Supreme Court/Advocate‑on?-Record for Appellants (in C.A. No.980 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Respondents (in C.A. No.980 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Respondents (in C.A. No.987 of 1998).

Jan Muhammad Khan, Advocate‑on‑Record for Respondents (in C.A. No.987 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Respondents (in C.A. No.988 of 1998).

M. Zahoor Qureshi Azad, Advocate Supreme Court/Advocate‑on?Record for Appellants (in C.A. Nc.988 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Respondents (in C.A. No.989 of 1998).

Muhammad Ismail Fahmi, Advocate‑on‑Record for Respondents (in C.A. No.989 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C.A. No.990 of 1998).

Muhammad Ismai: Fahmi, Advocate‑on‑Record for Respondents (in C.A. No.990 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C.A. No.991 of 1998).

Respondent: Ex parte (in C.A. No.991 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C.A. No.992 of 1998).

Abdul Samad Khan, Advocate‑on‑Record for Respondents (in C.A. No.992 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C.A. No.993 of 1998).

Respondent: Ex parte (in C.A. No.993 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C.A. No.994 of 1998).

Abdul Samad Khan, Advocate‑on‑Record for Respondents (in C.A. No.994 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C.A. No.995 of 1998).

Muhammad Ismail Fahmi, Advocate‑on‑Record for Respondents (in C.A. No.995 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C.A. No.996 of'1998).

Respondent: Ex parse (in C.A. No. 996 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C.A. No.997 of 1998).

Respondents: Ex parte (in C.A. No.997 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C.A. No.998 of 1998).

Respondents: Ex parte (in C.A. No.998 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C.A. No.999 of 1998).

Nemo for Respondents (in C.A. No.999 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C. A. No. 1000 of 1998).

Respondents Ex Parte: (in C.A. No. 10(0 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C. A. No. 1001 of 1998).

Muhammad Ismail Fahmi, Advocate‑on‑Record for Respondents (in C.A. No. 1001 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C.A. No. 1002 of 1998).

Abdul Samad Khan, Advocate‑on‑Record for Respondents (in C.A. No. 1002 of 1998).

Nur Ahmad Khan, Advocate Supreme Court/Advocate‑on‑Record for Appellants (in C.A. No. 1003 of 1998).

Muhammad Ismail Fahmi, Advocate‑on‑Record for Respondents (in C. A. No. 1003 of 1998).

Date of hearing: 17th September, 2001

PLD 2002 SUPREME COURT 39 #

P L D 2002 Supreme Court 39

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

KHALID AZIZ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petitions Nos:138 and 205 of 2001, decided on .12th September, 2001.

(On appeal from the judgment/order dated 14‑5‑2001. passed by Peshawar High Court, Peshawar in Ehtisab Appeal No.2 of 2000).

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

‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to the accused to consider the contentions that whether High Court had maintained conviction/sentence of accused without adhering to the provisions of S.14(c) of National Accountability Bureau Ordinance; that whether the impugned judgment was in consonance with the principle of law laid down by Supreme Court in para.224 in the case reported as PLD 2001 SC 607; that whether while imposing fine upon the accused High Court had failed to take into consideration that it could not be less than Rs.4,60,96,000 because the amount of fine could in no case be less than the gain derived by the accused or any relative or associate which might be set off against the forfeited or frozen assets and property according to S,.11 of the. National Accountability Bureau Ordinance; that whether High Court had reduced sentence awarded' to the accused by the Accountability Court contrary to the provisions of S.10(a) of the Ordinance; that whether High Court had wrongly concluded that the accused had only failed to account for Rs.38;43,500 instead of Rs.4,60,96,000 without assigning any reason, and that whether High Court had wrongly reduced sentence in absence of any mitigating or extenuating circumstances particularly when the reasons put forth by tote Accountability Court for holding the accused responsible for the commission of the offence were, maintained.

Khan Asfandyar Wali and 2 others v. Federation of Pakistan through, Cabinet Division PLD 2001 SC 607 ref.

Muhammad Akram Sh., Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner (in Cr.P. No. 138 of 2001).

Rashid‑ul‑Haq Qazi, Additional Advocate‑General, N.‑W.F.P. and Mehr Khan Malik, Advocate‑on‑Record for the State (in Cr.P. 138 of 2001).

Date of hearing: 12th September, 2001

PLD 2002 SUPREME COURT 42 #

P L D 2002 Supreme Court 42

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

GULZAR AHMED---Petitioner

versus

THE STATE---Respondent

Jail Petition No. 10 of 2001, decided on 13th September, 2001.

(On appeal from the judgment/order dated 16-5-2001 passed by Lahore High Court, Lahore in Cr.A.y6 of 1997 and M. R. No. 124 of 1997).

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

----S. 302---Sentence---Islamic principle of dispensation of criminal justice--Once an. offence falling within the definition of Hadd is proved, no extenuating or mitigating circumstance can be pressed into service for warranting lesser punishment---Where, however, sentence is awarded under "Tazir", then factor of mitigating or extenuating circumstance can form a relevant consideration while imposing sentence under S. 302(b), P.P.C.

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

----S. 302---Constitution of Pakistan (1973) Art. 185(3) --- Sentence --- Ocular evidence was supported by medical evidence; motive and evidence of recovery of the pistol from the accused which had matched with crime empties secured from the place of incident---Prosecution having manifestly proved involvement of accused in the crime, defence evidence would not be sufficient to constitute a mitigating or extenuating circumstance in his favour and non-consideration of the same would not prejudice him in any manner--Defence plea taken by accused had fro substance---Sentence of death awarded to accused was maintained in circumstances and the leave to appeal was declined to him accordingly.

Muhammad Sharif v. Muhammad.Javed alias Jeda Tedi and 5 others PLD 1976 SC 452 ref.

Sardar M. Siddique Khan, Advocate Supreme Court for Petitioner

Nemo for the State.

Date of hearing: 13th September, 2001

PLD 2002 SUPREME COURT 46 #

P L D 2002 Supreme Court 46

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh, and Rana Bhagwandas, JJ

FIDA HUSSAIN ‑‑‑Petitioner

versus

THE STATE and others‑‑‑Respondents

Criminal Petition No.539‑L of 2001, decided on 21st September, 2001.

(On appeal from judgment of Lahore High Court, Lahore dated 27‑7‑2001 passed in Criminal Miscellaneous No.405‑B of 2001).

(a) Constitution of Pakistan (1973)‑‑

‑‑‑‑Arts. 25 & 4‑‑‑Equality before law‑‑‑Rule of consistency‑‑‑Rule of consistency must be followed in order to maintain balance and the doctrine of equality before law.

(b) Act of the Court‑‑‑

‑‑‑‑ No person shall suffer for the act of the Court.

‑‑‑‑S. 497(1), third proviso‑‑‑Penal Code (XLV of 1860), Ss.302/34/377‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Bail‑‑‑Proceedings in the case having been stayed by Supreme Court at the instance of co‑accused and a status quo being in existence for almost three years, accused, could not be found at fault for the delay as suggested ‑‑‑Co‑accused had been admitted to bail by Supreme Court in similar circumstances and on the same charge and the accused was entitled to equal treatment before law arid in view of rule of consistency was also entitled to the concession of bail‑‑‑Accused in the perspective of third proviso to S.497(1), Cr.P.C. could not be detained in jail for indefinite period for the act of the Court‑‑‑Petition for leave to appeal was converted into appeal in circumstances and by allowing the same accused was admitted to bail.

Zahid Hussain Shah v. State PLD 1995 SC 39; Sher Ahmad v. State 1995 SCMR 1944 and Moundar v. State PLD 1990 SC 934 ref.

Sh. Khizar Hayat, Advocate Supreme Court for Petitioner.

Dil Muhammad Tatar, Advocate Supreme Court for the Complainant

Date of hearing: 21st September, 2001.

PLD 2002 SUPREME COURT 52 #

P L D 2002 Supreme Court 52

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

ALLAH DITTA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.72 of 2001, decided on 13th September, 2001.

(On Appeal from the judgment/order, dated 28th February, 2001 re High Court, Lahore in Criminal Appeal No.665/94 and M.R. No. 19/95).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 457‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Complainant had lodged the F.I.R. promptly nominating the accused to have fired on the deceased‑‑‑Eye‑witnesses had furnished trustworthy, confidence inspiring and consistent evidence so far as the act of firing by the accused on the deceased was concerned‑‑‑Prosecution witnesses had no enmity of any nature against the accused and had no reason to falsely involve him in the commission of murder of their brother and allow the real culprit to go scotfree‑‑‑Substitution of real culprit was also a rare phenomenon in the system of criminal justice‑‑‑Accused having rightly been saddled with the responsibility of murder of the deceased, impugned judgment warranted no interference‑‑‑Leave to appeal was refused to accused accordingly.

Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Proposition enshrined in maxim "falsus in uno falsus in omnibus" is not applicable and testimony of a witness is acceptable against one set of accused though the same has been rejected against the other set of accused facing same trial‑‑‑Evidence deserving to be believed must get corroboration on material particulars and the conviction should be based on the principle of sifting grain out of chaff for safe administration of justice‑‑‑Furnishing of independent corroboration does not mean that it must come from other source‑‑‑Consistent statements of eyewitnesses can also be considered corroboratory evidence if the same do not lack unanimity in their substantial evidence, i.e. the portion in which they have narrated the happening of the actual incident and the intrinsic value of their evidence has remained consistent with each other.

Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ref.

Mian Allah Nawaz, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 13th September, 2001.

PLD 2002 SUPREME COURT 56 #

P L D 2002 Supreme Court 56

Present: Rana Bhagwandas, Mian Muhammad Ajnnal and Javed Iqbal, JJ

RAZ MUHAMMAD ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 142 of 1998, decided on 11th April, 2001.

(On appeal from the judgment of the High Court of Balochistan, Quetta dated 6‑1‑1998 passed in Criminal Jail Appeal No‑291 of 1997).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 324/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Neither the complainant, nor the injured witness, nor any eye‑witness had been examined to prove the charge against the accused and his conviction was solely based on his retracted confession‑‑‑Leave to appeal was granted to accused by Supreme Court to consider whether in the absence of any other evidence it was safe to record conviction of accused on his retracted confession alone.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 324/34‑‑‑Appraisal of evidence‑‑‑Recording of judicial confession of accused after two days of police custody would not affect its voluntariness‑‑‑No reason existed to disbelieve the Magistrate who was an independent official witness and who had observed all the necessary precautions before recording the confessional statement of the accused even though he was warned that if he did not wish to record his statement he would not be handed over to police‑‑‑Confession made by accused was inculpatory in nature and rang true‑‑‑Details given by accused regarding their relationship and subsequent events had established voluntariness of the confession‑‑‑Although the confession was retracted at the trial, yet it being voluntary and true could be relied upon and used against the accused‑‑Confessional statement was corroborated by medical reports of the deceased and the injured‑‑‑Locale of the injuries and the weapon with which the same were caused as given in the medical certificates were the same as stated by the accused in the confessional statement‑‑‑Complainant had admitted the relationship of the parties as given by the accused in his confession, altercation before the murderous assault and fatal firing by the accused and his brother in his statement incorporated in the F.I.R.‑‑Convictions and sentences of accused were upheld in circumstances.

Wazir Khan v. The State 1989 SCMR 446 ref.

Per Rana Bhagwandas, J.‑‑

‑‑‑‑Ss. 302/34 & 324/34‑‑‑Appraisal of evidence‑‑‑Complainant having not been examined at the trial, contents of the F.I.R. could not be relied upon in support of the judicial confession of the accused as a corroborative piece of evidence.

Ch. Ghulam Muhammad, Advocate Supreme Court for Appellant. Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 11th April, 2001.

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P L D 2002 Supreme Court 62

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

WAHID‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No. 182 of 2001, decided on 14th September, 2001.

(On appeal from the judgment dated 4‑6‑2001 passed by the Lahore High Court, Lahore in Cr.A. No.191 of 1995 and M.R. No.86 of 1995).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 337‑AM & 148‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Sentence‑‑‑Ocular account was consistent as to the role played by the accused and assigned to him in the promptly lodged F.I.R. to the effect that he had fired effectively on the deceased with his gun‑‑‑Co‑accused had admitted the motive and the occurrence but claimed exercise of right of private defence of person and property‑‑‑Testimony of one eye‑witness, who having been won over by the accused had not stated the truth, had been rightly discarded by the Courts below to the extent which was untrue‑‑‑Eye‑witnesses were found to be present at the place of occurrence and to have seen the same and their testimony, inspired confidence being trustworthy‑‑‑Conflicting medical opinion in such circumstances would neither negate nor outweigh nor nullify the evidentiary value of eye‑witnesses‑‑‑Legal, valid and cogent reasons had been given by the Courts below for arriving at the finding regarding the guilt which stood proved beyond reasonable doubt‑‑‑No mitigating or circumstance was available for reduction in sentence‑‑‑Leave to appeal was refused to accused accordingly.

Zarid Khan v. Gu; Sher 1972 SCMR 597; Muhammad Boota v. The State 1984 SCMR 56; The State v. Abdul Ghaffar 1996 SCMR 678; Muhammad Rafiq alias Titai v. The State PLD 1974 SC 65; Ghulam Ullah and another v. The State and another 1996 SCMR 1887; Muhammad Hanif v. The State PLD 1993 SC 895; Abdur Rehman v. The State 1998 SCMR 1778 and Yaqoob Shah v. The State PLD 1976 SC 53 ref.

(b) Penal Code (XLV of 1860)‑--

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Conflict between ocular testimony and medical evidence‑‑‑Effect‑‑‑When the Court is convinced that a witness has seen the incident and his statement is worthy of credence, the conflicting opinion of the doctor would neither negate nor outweigh nor nullify the evidentiary value of such statement.

Ghulam Ullah and another v. The State and another 1996 SCMR 1887; Muhamrriad Hanif v. The State PLD 1993 SC 895; Abdur Rehman v. The State 1998 SCMR 1778 and Yaqoob Shah v. The State PLD 1976 SC 53 ref.

Sardar Asmatullah Khan, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 14th September, 2001.

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P L D 2002 Supreme Court 68

Present: Sh. Riaz Ahmed, Syed Deedar Hussain Shah and Javed Iqbal, JJ

SHAMAS‑UL‑BAHADUR ‑‑‑ Petitioner

versus

NISAR AHMED and another‑‑‑Respondents

Civil petition for Special Leave to Appeal No.96 of 2000, decided on 12th July, 2001.

(On appeal from the judgment and order of the N.‑W.F.P. Service Tribunal dated 27‑11‑1999 in Service Appeal No.537 of 1998)

(a) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Reinstatement in service‑‑‑Cancellation of appointment order ‑‑‑Appointment of civil servant was in accordance with law‑‑‑Competent Authority cancelled the appointment order of the civil servant to accommodate some other person‑‑‑Service Tribunal allowed the appeal and set aside the cancellation order‑‑‑Validity‑‑Competent Authority could always amend/modify or cancel the order passed by it subject to condition that the same suffered from any legal infirmity or cancellation was in the interest of exigency of service or public interest‑‑Where the appointment was cancelled for certain obvious reasons and on extraneous consideration, the question of cancellation of any lawful order did not arise‑‑‑Service Tribunal, in the present case, had examined the entire record with diligent application of mind and the conclusion as derived was in accordance with law‑‑‑Supreme Court declined to interfere with the judgment passed by the Service Tribunal‑‑‑Leave to appeal was refused.

Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 ref.

(b) Public functionaries‑‑‑

‑‑‑‑Good governance is dependent upon an upright, honest and strong, bureaucracy‑‑‑Mere submission to the will of superior is not a commendable trait in a bureaucrat.

Jehanzaib Rahim, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioner.

Date of hearing: 12th July, 2001.

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P L D 2002 Supreme Court 71

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

MUHAMMAD YASIN and another--Petitioners

Versus

DOST MUHAMMAD through Legal Heirs and another--Respondents

Civil Petition No.2203 of 2001, decided on 17th September, 2001;

(On appeal from the judgment/order dated 20-7-2001 passed by Lahore High Court, Multan Bench, Multan in W.P. No.2740 of 1994).

(a) Power of attorney--

--Construction of---Attorney acting on behalf of principal---Scope---All instruments of power of attorney in pursuance whereof attorney is authorized to act on behalf of principal are to be construed strictly.

AIR 1947 Nag. 17; PLD 1969 Kar. 123 and 1995 CLC 1541 ref.

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

----S. 211---Constitution of Pakistan (1973), Art. 185(3)---Power of attorney----Non-compliance of the conditions mentioned in the power of attorneyAttorney before transferring/alienating the property in the name of the petitioners was bound to have obtained a registered sale deed in the name of the principal from the concerned departments of the Government according to the terms of power of attorney---Where such transfer was never effected in favour of the principal, the attorney had no authority for transfer of the land in favour of the petitioners who were his sons---Plea raised by the petitioners was that the principal had consented to the transfer and non‑compliance of such condition of power of attorney had no bearing on their rightsValidity---High Court had rightly declined to entertain the plea because the principal was not associated in the proceedings of transferring the property in favour of the petitioners by the attorney---Supreme Court declined to interfere with the judgment passed by High CourtLeave to appeal was refused.

Fida Muhammad v. Mir Muhammad Jan through Legal Heirs and others PLD 1985 SC 341 ref.

Dr. Babar Awan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 17th September, 2001.

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P L D 2002 Supreme Court 74

Present: Abdur Rehman Khan and Nazim Hussain Siddiqui, JJ

MCTHAMMAD BOOT.A and another‑‑‑Appellants

versus

MOOR BEGUM and 2 others‑‑‑Respondents

Civil Appeal No.963 of 1996, decided on 17th August, 2001.

(On appeal from the judgment dated 2‑4‑1995 of the Lahore High Court, Lahore, passed‑ in C. R. No.1961/1994).

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the view taken by the High Court that the suit should have been filed within four months, if not earlier, and as the same was not done the suit was time‑barred; whether the Authorities relied upon by the High Court did not support its view and whether the High Court had erred in holding that Talb‑i‑Muwathibat had not been made.

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

‑‑‑‑O. VII, R.11‑‑‑Rejection of plaint‑‑‑Second application under O.VII, R.11, C.P.C.‑‑‑Earlier application for rejection of plaint was dismissed by the Trial Court but the second application for the same relief was allowed by the High Court‑‑‑‑Validity‑‑‑Counsel for the vendee conceded the legal position and did not oppose the appeal on such count‑‑ ‑Judgment passed by the High Court was set aside and Supreme Court remanded the case to the Trial Court.

Haji Rana Muhammad Shabbir Ahmad Khan v Government of Punjab Province, Lahore Pt.D 1994 Lah 1 ref.

Mian Saced‑ur‑Rehman Farrukh. Advocate Supreme Court and Sh. Salah‑ud‑Din, Advocate‑on‑Record (absent) fur Appellants.

Mr. Gulzarin Kiani, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 25th May, 2()01

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P L D 2002 Supreme Court 77

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

INAYAT ALI ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No. 192 of 2001, decided on 11th September, 2001.

(On appeal from the judgment dated 25‑11‑1999, passed by Lahore High Court, Lahore, in Appeal No. 182 of 1994).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.119‑‑‑Plea of alibi, proof of‑‑‑Not essential for the accused to have proved the plea of alibi to the hilt and more so it is for the prosecution to establish its case beyond the shadow of doubt.

Amanullah v. State PLD 1982 SC 429; Surat Chandra Dhupi v. Emperor AIR 1934 Cal. 719; Suraj Bakhsh Singh v. Emperor AIR 1933 Oudh 369; Muksed Molla v. The Crow. PLD 1957 Dacca 503 and R. v. Lobell 1957 All ER 734 ref.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Plea of alibi taken by accused was an afterthought and fabricated one‑‑‑Eye‑witnesses being residents of the same vicinity could not be labelled as chance witnesses and their enmity with the accused was not so grave which could prompt them to substitute the accused for the real culprit which otherwise was a rare phenomenon ‑‑‑Ocualr version was consistent and inspired‑confidence‑‑-Contradictions in the statements of prosecution witnesses were not grave in nature dud minor contradictions do creep in with the passage of time‑‑Medical evidence had supported the ocular testimony‑‑‑Unexplained abscondence of accused for about nine months was also a corroboratory factor which could not be ignored‑‑‑Accused had committed four brutal murders in a reckless manner and question of any leniency in his favour did not arise‑‑‑Courts below had passed the impugned judgment after proper analysis of evidence and the conclusion drawn by them being unexceptionable hardly called for any interference‑‑‑Leave to appeal was declined to accused by Supreme Court accordingly.

Amanttllah v. State PLD 1982 SC 429; Surat Chandra Dhupi v. Emperor AIR 1934 Cal. 719; Suraj Bakhsh Singh v. Emperor AIR 1933 Oudh 369; Muksed Molla v. The Crown PLD 1957 Dacca 503; R. v. Lobell 1957 All ER 734 and Mesal and another v. The Crown 1971 SCMR 239 ref.

Munir Ahmad Bhatti, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record (absent) for Petitioner.

Nemo for the State.

Date of hearing: 11th September, 2001.

PLD 2002 SUPREME COURT 84 #

P L D 2002 Supreme Court 84

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

HYDERABAD DEVELOPMENT AUTHORITY through M.D., Civic Centre, Hyderabad ‑‑‑Appellant

versus

ABDUL MAJEED and others‑‑‑Respondents

Civil Appeals Nos, 557 to 572 of 2000, decided on 25th September, .2001.

(On appeal from the judgment/order dated 4‑11‑2000 passed by High Court of Sindh, Karachi in Appeals Nos. 12 to 19 and 31 of 1990).

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

‑‑‑‑S. 23‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Compensation‑‑-Enhancement‑‑‑Lands were acquired by Government and the compensation fixed by the Authorities was enhanced by the High Court‑‑‑Contention of the petitioner was that the enhancement was without legal justification‑‑‑Leave to appeal was granted by Supreme Court to consider the contention of the petitioner.

(b) Judgement---

‑‑‑‑Judicial pronouncement Oudgment) by Judicial Officer‑‑‑Necessary ingredients‑‑‑Judicial pronouncement should be based on the evidence/material available on record and reasons must be an outcome of the evidence available and on the basis of such reasons conclusion should be drawn‑‑‑Where the order/pronouncement lacks such ingredients it cannot be termed to be a judicial verdict (judgment) in stricto senso and such pronouncement at the best can be termed to be an administrative order incapable to settle controversy judicially between the parties.

‑‑‑‑Ss. 4(1) & 23‑‑‑Acquisition of land‑‑‑Fixation of market value‑‑‑Crucial date‑‑‑Crucial date for determination of market value of the acquired land would be on which a notification under S.4(1) of the Land Acquisition Act, 1894 was issued.

Land Acquisition Collector v. Ch.Muhammad Ali 1979 CLC 523 ref.

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

‑‑‑‑Ss. 4(1) & 23‑‑‑Acquisition of land‑‑‑Fixation of market value‑‑?Determination‑‑‑Sale average of the preceding years is to be taken into consideration for the purpose of grant of compensation‑‑‑Transactions which have taken place subsequent to the issuance of notification under S.4(1) of the Land Acquisition Act, 1894, are not considered proper to achieve the object.

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 75 & 76‑‑‑Document‑‑‑Proof of‑‑‑Tendering of photo copy of document‑‑‑Failure to lead primary or secondary evidence to prove the document‑‑‑Document was taken on the record subject to its admissibility because the witness tendered its photocopy‑‑‑Later on no steps were taken by the party to prove the contents of that document by leading primary or secondary evidence in terms of Arts.75 & 76 of the Qanun‑e‑Shahadat, 1984‑‑‑Validity‑‑‑Such document could not be taken into consideration‑‑?Merely by tendering a document in evidence, the same had no evidentiary value unless its contents were proved according to law.

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

‑‑‑‑S. 18‑‑‑Acquisition of land‑‑‑Reference to Court‑‑‑Enhancement of compensation‑‑‑Onus to prove‑‑‑Being dissatisfied by the award fixed by the Authorities reference on behalf of the land owners was filed in the Court‑‑?Land owners did not produce any documentary evidence in support of their claim‑‑‑Trial Court dismissed the reference‑‑‑High Court on the basis of only oral evidence enhanced the compensation‑‑‑Validity‑‑‑Party interested for enhancement of the compensation owed a duty to discharge the burden by producing convincing evidence for hearing of reference under S.18 of the Land Acquisition Act, 1894‑‑‑Potential value of the property could not be determined on the basis of mere oral assertion on behalf of the land owners‑‑?Land owners had failed to discharge the burden of proving the market value as well as potentials of the property‑‑‑High Court therefore was not justified in enhancing the compensation‑‑Order passed by the High Court was set aside and that of the Trial Court was restored.

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

‑‑‑‑S. 54‑‑‑Supreme Court Rules, 1980, O. XII, R.2 & O.XIII, R.1‑‑?Constitution of Pakistan (1973), Art. 185(3)‑‑‑Appeal against decree of High Court‑‑‑Limitation‑‑‑Petition under Art. 185(3) of the Constitution‑‑?Maintainability‑‑‑Direct appeal lies to Supreme Court under S.54 of the Land Acquisition Act, 1894 against decree of High Court for which time of 30 days has been prescribed under OXII, R.2 of Supreme Court Rules, 1980‑‑?Where no such appeal has been filed, a petition for leave to appeal is competent under Art. 185(3) of the Constitution, if the same is filed within 60 days as per O.XIII, R.1 of Supreme Court Rules, 1980‑‑‑Appeal in land acquisition cases, against the order of the High Court should have been filed but instead of filing appeal if a petition for leave to appeal has been preferred then Supreme Court is competent to convert the same into appeal and also condone the delay in the interest of justice.

NLR 1999 Rev. 90 distinguished.

Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164 ref.

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

‑‑‑‑S. 54‑‑‑Constitution of Pakistan (1973), Art.185 ‑‑‑ Limitation Act (IX of 1908), S.5‑‑‑Appeal‑‑‑Condonation of delay‑‑‑Delay of 8 days‑‑‑Illegal order‑‑‑Effect‑‑‑Where the order passed by High Court could not be upheld which on the face of it was not sustainable in the eye of law, delay of 8 days in filing the appeal was condoned in the interest of justice‑‑‑Merely for technical reason appellant could not be non‑suited.

Chairman, N.‑W.F.P. Fnrest Development Corporation and others v. Khurshid Anwar Khan and others 1992 SCMR 1202 ref.

(i) Limitation Act (IX of 1908)‑‑-

‑‑‑‑S. 5‑‑‑Condonation of delay‑‑‑Principles‑‑‑Where on merits the respondent had no case, then :imitation would not be a hurdle in the way of appellant for getting justice‑‑‑Supreme Court observed that the Court should not be reluctant in condoning the delay depending upon facts of the case under consideration.

Kishan Chand Barwani, Advocate Supreme Court and Akhlaq Ahmed Siddiqui. Advocate‑on‑Record for Appellants (in all Appeals).

M. M. Aqil Awan, Advocate Supreme Court and Faizan‑ul‑Haq, Advocate‑on‑Record (absent) for Respondents (in C.As. Nos. 557 to 568 of 2000).

M.M. Aqil Awan, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents (in C.As. Nos.569 to 572 of 2000).

Date of heairng: 25th September, 2001.

PLD 2002 SUPREME COURT 92 #

P L D 2002 Supreme Court 92

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

MEHRBAN alias MUNNA---Petitioner

versus

THE STATE---Respondent

Jail Petition No.253 of 1999, decided on 11th September, 2001

(On appeal from the judgment dated 7-9-1999 passed by Lahore High Court, Rawalpindi Bench, in Criminal Appeal No.85 of 1994).

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

----S. 84---Act of a person of unsound mind---Legislature has deliberately used the words "unsoundness of mind" instead of the word "insanity" in S.84, P.P.C. in order to give it a broader spectrum because "unsoundness of mind" covers almost all the ailments concerning mind---Pivotal question would be as to whether the accused was capable enough to know the nature of the act committed by him, whether he was permanently incapable in view of his antecedents, subsequent and past conduct, family history and opinions of Medical Experts, or was incapable during certain intervals and thereafter causes for permanent or temporary incapability will have to be examined which can possibly include lunacy, idiocy, imbecility non compos mentis, temporary paroxysm, insanity/insane delusions, somnambulism, frantic humour and its gravity, maniacal trend, periodic epileptic fits, delirium tremens, irresistible impulsive insanity, obsession, mania, amentia, dementia and melancholia.

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

----S. 84---Act of a person of unsound mind---Crucial point of time for deciding whether the benefit of S.84, P.P.C. should be given or not is the material time when the offence took place---If at such time a person is found to be labouring under such a defect of reason as not to know the nature of the act he was doing or that even if he knew it, he did not know it was either wrong or contrary to law, then S.°4, P.P.C. must be applied---In coming to such a conclusion the relevant circumstances like the behaviour of the accused before the commission of the offence and after the commission of the offence, should be taken into consideration.

Thiruvathammal v. Vagunathan AIR 1952 Mad. 479 and Madho Singh v. State 1953 Cr.LJ 382 ref.

---S. 84---Act of a person of unsound mind---"Medical insanity" and "legal insanity"-Distinction -t-Not every person suffering from mental disease that can avoid responsibility for a crime by invoking the plea of insanity--Medical insanity is distinct from legal insanity and Courts are only concerned with the legal and not with the medical view of the question---Legal insanity only furnishes a ground for exemption from criminal responsibility---No legal insanity can exist unless the cognitive faculties of the accused are completely impaired as a result of unsoundness of mind---Unsoundness of mind in order to constitute legal insanity must be such as should make the offender incapable of knowing the nature of the act or what he is doing is wrong or contrary to law.

Emperor v. Harka 4 Cr.LJ 88; Bagga v. Emperor (1931) 32 Cr.L7 1230; Emperor v. Sajjan Singh (1931) 32 Cr.LJ 816 and (1952) Patiala 254 ref.

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

----S. 84---Insanity, plea of---Burden of proof on accused---Where the plea of insanity is taken the burden of proving such degree of insanity which exempts the accused from criminal liability is on the accused himself.

State v. Balahari Das PLD 1962 Dacca 467; Safdar Ali v. Crown PLD 1953 FC 93; L,al Khan v. Crown PLD 1952 Lab. 502; Madhya Pradesh v. Ammadulla AIR 1961 SC 998 and Emperor v. Sajjan Singh 32 Cr.LJ 816 (Lah.). ref.

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

----S. 84---Insanity, proof of---Mere inadequacy of motive is no proof of insanity.

AIR 1959 Mad. 239 ref.

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

----Ss. 302(b) & 324---Constitution of Pakistan (1973), Art. 185(3) --- Accused had agitated the plea of sudden flare-up but not insanity---Plea of insanity was an afterthought which had neither been agitated before the Courts below nor substantiated by any evidence and the same could not be considered at the petition stage which in fact had never existed---Accused had stated that he was not in full senses which could not be equated to insanity---Guilt had been admitted by the accused in an unambiguous manner in his statement recorded under S.342, Cr.P.C.---Ocular testimony was consistent, confidence-inspiring and worthy of credence---Recovered blood-stained "Chhuri" was found to be stained with human blood---Medical evidence had fully supported the ocular account of occurrence---Leave to appeal was refused to accused by Supreme Court in circumstances.

Thiruvathammal v. Vagunathan AIR 1952 Mad. 479; Madho Singh v. State 1953 Cr.LJ 382; Emperor N'. Harka 4 Cr.LJ 88; Bagga v. Emperor (1931) 32 Cr.LJ 1230; Emperor v. Sajjan Singh (1931) 32 Cr.LJ 816; (1952) Patiala 254; State v. Balahari Das PLD 1962 Dacca 467; Safdar Ali v Crown PLD 1953 FC 93; Lal Khan v. Crown PLD 1952 Lah. 502; Madhya Pradesh v. Ammadulla AIR 1961 SC 998; Emperor v. Sajjan Singh 32 rr.LJ 816 (Lah.); AIR 1963 Orissa 33; AIR 1961 Pat. 355; AIR 1929 Cal. 130; 30 Cr.LJ 494; AIR 1960 Madh Pra. 102; AIR 1960 Mys. 48; AIR 1955 Sau. 13; AIR 1953 Pepsu 17; AIR 1951 Punj. 302; 11 Cr.LJ 105) (Lah.) and AIR 1959 Mad. 239 ref.

Javed Aziz Sindhu, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 11th September, 2001.

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P L D 2002 Supreme Court 101

Present: Irshad Hasan Khan, C.J., Ch. Muhammad Arif, Qazi Muhammad Farooq, and Mian Muhammad Ajmal, JJ

Dr. ANWAR ALI SAHTO and others‑‑‑Appellant, versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Civil Appeals Nos. 366 to 378, 613 to 637, 648 to 655, 985, 986, 1113 to 1124 and Civil Petitions Nos.745 to 760, 1263 to 1341, 1877 to 1921, 1926, 1934 to 2067 of 2001. Civil Appeal No.120 of 1999 and Civil Petitions Nos. 1381, 1459, 2112 and 1515 of 2001.

(On appeal from judgment dated .17‑2‑1999, 27‑5‑2000, 6‑6‑2000. 16‑11‑2000. 17‑4‑2000, 19‑4‑2000, 29‑5‑2000, 3‑6‑2000, 24‑5‑2000. 27‑4‑2000 and 13‑4‑2001 passed by the Federal Service Tribunal, Islamabad and Camp at Karachi in Appeals Nos.161(R)/1998. 573(x)/99 to 575(x)/99, 578(x)/99, 618(x)/99, 765(x)/99, 1266(x)/99, 577(x)/99, 526(x)/99, 1160(x)/99, 1159(x)/99, 1168(x)/99, 1169iK)/99, 1171(x)/99, 1166(x)/99, 1239(K)/99,1238(x)/99, I162(K)/99, 550(x)/99, 641(x)/99, 1161(x)/99, 1174(x)/99, 1176(x)/99, 1172(x)99, 711(x)/99, 69(x)/98, 2464(x). 2465(x) to 2474(x)/97 and judgment dated 25‑5‑2000, 1‑6‑2000, in Appeals Nos.1067(K) to 1073(x)/99 and 1209(x)/99 and judgment dated 23‑9‑2000 in Appeals Nos.2178(R)/99, 2166(R)/99 and judgment dated 29‑1‑2001 in Appeals Nos.2325(R) to 2336(R)/99, 70(R)/2000, 71(R)/2000, and judgment dated 23‑1‑2001 in Appeals Nos.229(K)/99, 231(x) to 234(x)/99, 236(x), 237(x), 241(x), 246(x), 247(x). 251(x), 254(x), 255(x(. 257(x), 245(x)/99 and judgment dated 21‑3‑2001 in Appeals Nos. 553(R) (CE) to 631(R) (CE)/217()0 and judgment dated 12‑5‑2000 in Appeals Nos.855(R)/99, 2267(R) to 2286(R)/99, 2390(R)/99, 2291 to 2298(R)/99, 2301(R) to 2318(R)/99, 2377(R)/99, 771(R)/99, 791, 766, 827, 794, 861, 818, 765, 2288, 2300, 1214, 1255, 634, 1193, 1211, 1203, 1213, 1201, 1241 ,1209, 835, 770, 811, 793, 798. 831. 8.19, 796, 809, 862, 856, 768. 821, 824, 2331, 1207, 814, 2290,.789, 763, 2287, 806, 1256, 820, 815, 2278, 817, 1115, 1118, 1111. 1218, 1210, 1248, 1198, 1217, 1240, 1244, 1202, 834, 2333, 1250, 1212, 2097, 2313, 1252, 1267, 1190, 1216, 1205, 1194, 1249, 633, 1116, 773, 2305, 859, 2332, 1208, 1243, 637, 1200, 1196, 1195, 1239, 783, 790, 822,.839, 1215, 636, 1191, 1114, 1117, 1120, 1112, 1119, 1192, 1189, 1113, 635, 632, 1242, 1246, 1204, 1259, 1260, 1258, 1247, 1251, 2334, 1257, 1262, 842, 803, 875, 833, 854, 2299, 828, 1245. 1188, 1266, 1199, 1197, 1206, 2289, 804, 808, 780, 826, 853. 816, 777(R)/99 and judgment dated 28‑7‑1998 in Appeals Nos. 190(K)/98 and judgment dated 23‑9‑2000 in Appeals Nos.2308(R)/99, 2240(R)/99, 2237(R)/99 and 798(K)/99).

(a) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Contract employees of a Corporation‑‑‑Termination of services of such employees‑‑‑Neither the contract was terminated nor the same was renewed on expiry of stipulated period of six months‑‑‑Services of employees were however, terminated when all of them had, more or less, served the employer‑Company for 1‑1/2 to 2‑1/2 years on the ground that their services were on contract basis‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider as to whether services of the employees had been rightly terminated by the employer‑Company in view of the fact that they had accepted their appointments on contract basis for a period of six months; that whether the employees had attained status of confirmed employees after completion of initial period of six months because after this period the contract of their service was not terminated and no letter of fresh contract was issued by the employer, if so, to what effect; that whether for non‑termination of services of the employees exactly after the expiry of initial period of six months their services were to be governed by the Company's Service Rules; that what would be the effect of judgments of Supreme Court in cases of Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176, Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82, Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555.

Managing Director; Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 1.76; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555 ref.

(b) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Civil service‑‑Contract employees of a Corporation‑‑‑Termination of services of such employees‑‑‑Neither the contract was terminated nor the same‑ was renewed on expiry of stipulated period of six months‑‑‑Services of employees were however, terminated when all of them had, more or less, served the employer‑Company for 1‑1/2 to 2‑1/2 years on the ground that their services were on contract basis‑‑‑Validity‑‑‑Contractual appointments of employees were not transformed into regular appointments through any formal order/s‑‑‑Contract assignment could not become permanent by efflux of time‑‑‑Continuation of the contract of employment was the result of the continuation of the project beyond the period of six months for which the employees were initially inducted into service‑‑‑Period of six months being the mainstay of the contracts in question, could not be equated with "probationary period" by any stretch of imagination‑‑‑ "Contract period" and "probationary period" have distinct connotation altogether‑‑‑Employees having been appointed on contract basis for a specific project and their services having been terminated‑on the completion of the projects in question, they could be dealt with by terminating their contracts of service within the contemplation of their respective appointment letters‑‑‑Contract period of the employees having not been extended, Service Rules of the employer‑--Company would not take over the matter and the contract appointments continued to hold the field throughout.

Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555 distinguished.

‑‑‑S. 2‑A‑‑‑Contract employees of a Corporation/Company‑‑Termination of services of such employees‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope--‑Principles‑‑‑Where the grievance of such employees flows from a contract of service not governed by any statutory rules or departmental rules having the force of law, the jurisdiction of Service Tribunal is confined to examination of the grievance of the dismissed/terminated employee on the touchstone of the terms and conditions of the contract of service/letter of appointment‑‑‑If the letter of appointment envisages termination of employee on one month's notice, Service Tribunal has no jurisdiction to alter the terms and conditions mutually agreed upon between the employer and the employee while exercising its jurisdiction in terms of S.2‑A of Service Tribunals Act, 1973 which has been intended to provide a forum even to those employees' of a Corporation/Statutory Body etc. who are recruited on contract basis and in appropriate case such employees could be reinstated in service in accordance with the terms of their contract of service or the rules applicable to them, as the case may be.

Prior to incorporation of section 2‑A, in the Service Tribunals Act, 1973, it was settled law that an employee of a Corporation, in the absence of violation of law or any statutory rule, could not press into service Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service. His remedy against wrongful dismissal /termination or reduction in rank, etc., was to claim damages. However, after insertion of section 2‑A an employee of Corporation/Company covered thereunder can approach the appropriate Service. Tribunal for redress of his grievance against wrongful dismissal/ termination etc. even in the absence of violation of law or any statutory or non‑statutory rule in that regard. The Tribunal, seized of the matter, can go into all questions of facts and law for determining whether the order passed by Department/Corporation is justified on facts as well as on law. In case of violation of a statutory/non‑statutory rule or instruction having the force of law, appropriate orders can be passed by the Tribunal rectifying the wrong done to the employee. However, where the grievance flows from a contract of service not governed by any statutory rules or departmental rules having the force of law, the jurisdiction of the Tribunal is confined to examination of the grievance of the dismissed/terminated employee on the touchstone of the terms and conditions of the contract of service/letter of appointment. If in a given case the letter of appointment envisages termination of an employee on one month's notice the Tribunal has no jurisdiction to alter the terms and conditions mutually agreed upon between the employer and the employee while exercising its jurisdiction in terms of section 2‑A which has been intended to provide a forum ever, to those employees of a Corporation/Statutory Body, etc. who art recruited on contract basis and in appropriate cases they could be reinstated in service in accordance with the terms of their contract of service or the rules applicable to them, as the case may be.

The intention of the Legislature appears to be to provide a forum to the employees of Corporations etc. against their arbitrary removal, discharge from service or other final orders that may be passed by such Corporations adversely affecting their terms and conditions of service. Where the employees were not civil servants within the meaning of the Civil Servants Act, 1973 and where no statutory or service rules were framed by the employer/Corporation, the terms and conditions of service of such employees were wholly regulated by their contracts of employment and after insertion of section 2‑A, such employees had a right to approach the appropriate Service Tribunal for protection of their rights of employment flowing from such contracts of service.

(d) Service Tribunals Act (LXX of 1973)---

‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Temporary employees of a Corporation/Company‑‑‑Termination of services of such employees who had served the Company for more than an aggregate period of three/four years‑‑‑Service Tribunal dismissed appeals of the employees holding that they were appointed on temporary basis for a temporary assignment in the Company's project on fixed emoluments, therefore, their services could be terminated on completion of the particular project‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider as to whether services of the employees had been rightly terminated by the Company in view of the fact that they had accepted appointments as temporary employees of the Company's particular project; that whether employees had attained status of permanent employees after serving the Company for more than a period of 3/4 years because during such period their services were not terminated nor fresh letters of appointment as temporary employees were issued by the Company, if so, to what effect; that whether in view of the fact that employees had served for a continuous period of more than 3/4 years., their services will be governed by the Service Rules of the employer‑Company and that what would be the effect of the judgments delivered by Supreme Court in the cases of Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82, Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71, decided on 28th March, 2001 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555.

Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82; Abdul Samad and others v. Federation of Pakistan, and others 2002 SCMR 71 and Sai Southern Gas Company v. Narain Das and others PLD 2001 SC 555 ref.

(e) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Temporary. employees of a Corporation/Company‑‑‑Termination of services of such employees‑‑‑Leave to appeal was granted to see whether the cases being identical with the cases of Engineer Narain Das v. Sui Southern Gas Co.. Ltd. 2002 SCMR 82 and The Managing Director, SNGC Ltd. v. Saleem Mustafa Sheikh PLD 2001 SC 176, the Executive Service Rules would apply to them as well.

(f) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Temporary employees of a Corporation/Company‑‑Termination of services of such employees who had served the Company for more than an aggregate period of three/four years‑‑‑Service Tribunal dismissed appeals of the employees holding that they were appointed on temporary basis for a temporary assignment in the company's project on fixed emoluments, therefore, their services could be terminated on completion of the particular project‑‑‑Validity‑‑‑Mere fact that the Corporation/Company's employees could competently invoke the jurisdiction of the appropriate Tribunal under S.2‑A, Service Tribunals Act, 1973 would not ipso facto, have the effect of applicability of all laws relating to Government servants to such employees‑‑‑ Employee aggrieved by any order passed by the Corporation/Company adversely affecting his terms and conditions of service had to show, as to which of his service rights had been violated and what was its nature i.e. whether such right flowed from statutory or non‑statutory rules and departmental instructions or a contract of service simpliciter‑‑‑If the terms and conditions of such employees of a Corporation/Company were governed by statutory rules, the Service Tribunal had jurisdiction to enforce the right through appropriate order‑‑‑Even a right accruing to an employee of a Corporation/Company under non‑statutory rules, which had attained the status of rules, if violated, could be enforced depending upon the facts and circumstances of each case‑‑‑Where, however, an employee was neither governed by statutory rules nor by non‑statutory rules, but by his letter of appointment/contract of service, Service Tribunal was bound to determine the rights and obligations of the parties strictly in accordance with the terms thereof ‑‑First question, in such cases would be as to whether there was any binding contract between the parties and if so, the same had to be given effect to accordingly.

Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555 distinguished.

(g) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Temporary assignments given to employees by a Corporation/Company‑‑‑Termination/recalling of assignments of such employees on completion of particular projects for which such employees were engaged‑‑‑Validity‑‑‑Nature of the assignment given. to the employees being what it was, the company was within the domain of its authority/and jurisdiction under the very charter of its incorporation to take an action with regard to the termination/recalling of their assignments whenever the Company thought feasible/appropriate on account of closure/completion of the project/s against which they were employed temporarily‑‑‑Mere fact that the project/s for which the employees were engaged for a specific period could not be completed within the specified time and the employees continued in service till completion of such projects, would not entitle the employees to be permanently absorbed in service of the Company‑‑‑Continuing in service 'due to delayed completion of the project/s for a longer period than the initial period of temporary assignments, would not be a determining factor of the nature of the employment; as soon as the particular project/s, for which the employees were engaged, came to a close, their services also came to an end.

WAPDA v. Khanimullah 2000 SCMR 879 fol.

Managing Director, Sui Southern Gas Co. ‑Ltd. v. Saleem Mustafa Sheikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Company 2002 SCMR 82 and Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 distinguished.

(h) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Contract employees or employees engaged for temporary assignments by a Corporation/Company for a project for a specified period-‑‑Termination of services of such employees or dismissal from service‑‑‑Rule of master and servant ‑‑‑Applicability‑‑‑Principles‑‑Services of temporary employees/contract employees could be dispensed with at any time in terms of their respective contract/s of temporary assignment‑ ‑‑Each case was to be decided in the light of its own peculiar circumstances with reference to the applicable law‑‑‑Precedent law was also to‑be kept in view in order to avoid contradictory decisions.

An employer/Corporation may have the power to terminate the services of its employees in the exigencies of service without issuing a show‑cause notice. Clearly, an employer has two distinct rights: one to take action against its employee simply by terminating his service and other to dismiss him from service for misconduct. In the latter case, before passing the order of dismissal from service against an employee, the prescribed procedure is to be adopted by the employer/Corporation under the relevant law/rules by issuing him a show‑cause novice and if such procedure is not followed by the employer/Corporation, an order of reinstatement may be passed. But if the employer/Corporation is obliged to issue show‑cause notice with reasons for taking adverse action in a case of termination simpliciter, which might not sustain before a Court of law if such reasons are found to have stigmatized the employee, the result would be that the power of the employer/Corporation to terminate the services of its employees would be taken away. No doubt such a course is not advisable vis‑a‑vis the rule of master and servant, which is still applicable in certain cases of employment. The above findings would bring to the definite conclusion that the master and servant rule is applicable in these cases. The services of the temporary employees could be dispensed with at any time in terms of their respective contract/s of temporary assignment. Each case is to be decided in the light of its own peculiar circumstances with reference to the applicable law. However, precedent law is also to be kept in view in order to avoid contradictory decisions.

United Bank Ltd‑. v. Ahsan Akhtar 1998 SCMR 68 and Ms. Zeba Mumtaz v. First Women Bank Ltd. PLD 11199 SC 1106 ref.

(i) Civil service‑‑

‑‑‑‑Appeal to Service Tribunal ‑‑‑Limitation‑‑‑Condonation of delay Service Tribunal has to press into service question of limitation strictly‑‑Delay in filing of proceedings cannot be condoned lightly because limitation creates a right in favour of one of the parties‑‑‑Sufficient reasons are to be shown or that the impugned order is coram non judice or void for any strong reasons, then the delay can be condoned.

Fazal Elahi Siddiqi v. Pakistan through Secretary, Establishment Division PLD 1990 SC 692; Chairman, PIAC v. Nasim Malik PLD 1990 SC 951 and Ali Muhammad v. Chief Settlement Commissioner 2001 .SCMR 1822 ref.

(j) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973). Art.212(3)‑‑‑Trainee Eengineers engaged by a CorporationlCumpany initially for a period of six months anti later terminated from service when they had served the Company for more than two years‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider whether 'the case of employees was identical with other cases, decided by the Supreme Court, and if so, there was no particular justification to hold otherwise.

Engineer Naram Das and others v. Sui Southern Gas Company 2002 SCMR 82 and Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176 ref.

(k) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art. 212(3) ‑‑‑ Trainee Engineers engaged by a Corporation/Company initially for a period of six months and later terminated from service when they had served the company‑ for more than two years‑‑‑Validity‑‑‑Question raised in the matter had been considered and adjudicated upon in identical cases by the Supreme Court in the case of Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176 and Engineer Narain Das and others v. Sui Southern Gas Company 2002 SCMR 82‑‑Striking feature of the said decided cases was to the effect that after the absorption of the employees the Company may make them to take IBA Test and in the light of the result thereof, proceed with the retention or otherwise of the employees in accordance with law‑‑‑Supreme Court, in view of the decisions in the said cases converted the petitions into appeals and by allowing the same set aside the impugned judgments of the Service Tribunal therein with the direction to the employer‑Company to reinstate the employees in their respective uisciplines and thereafter put them to IBA Teat and consider their further retention in the light of the results thereof‑‑‑ "Reinstatement" and "absorption" for all intents and purposes; are synonymous expressions‑‑‑Expression "absorbed" as used to Abdul Samad v. Federation of Pakistan 2002 SCMR 71 by Supreme Court has to be construed accordingly and to that extent the Supreme Court's judgment in Abdul Samad s case also stands revisited.

(1) Civil service‑‑

‑‑‑‑"Reinstatement" and "absorption"‑‑‑Synonymous expressions.

"Reinstatement" and "absorption" for all intents and purposes, are synonymous expressions, in that, "reinstatement" in service involves an element of "absorption", therefore, the expression "absorbed" used in Abdul Samad v. Federation of Pakistan 2U02 SCMR 71 by Supreme Court is to be construed accordingly and to that extent the case of Abdul Satnad v. Federation of Patcistan 2002 SCMR 71 also stand; revisited. The findings in this case shall not, however, affect the transactions past and closed.

(m) Words and phrases‑‑

‑‑‑‑Terms "reinstatement" are "absorption" are synonymous expressions.

(n) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑(. 2‑A‑‑‑Temporary employee of a Corporation/Company engaged till the completion of a particular project‑‑‑Service Tribunal. on appeal, reinstated such employee into service on the ground that his services were terminated without issuing show‑caus~ notice and affording him opportunity of hearing‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider whether in view of the decision of Supreme Court dated 9‑7‑1998 passed in Civil Petitions Nos.391‑K to 456‑K of 1998, etc., the Service Tribunal could not set aside the termination order of the employee and reinstate him into service.

(o) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Employee was appointed against a 'temporary assignment' for a particular project‑‑‑Termination of services of such employee‑‑Contention of the employee was that since the projects commenced by the Company were of on‑going nature, therefore, services of the employee could be utilized for some other project‑‑‑Validity‑‑‑Held, in the absence of violation of any provision of law or statutory rules, no exception could be taken to the termination of service of the employee on one month's salary in lieu of notice plus other dues, if any, payable under the terms of the appointment or internal rules of the company‑‑‑If, however, the employee had been reinstated into service pursuant to the impugned judgment of the Service Tribunal, his services may be dispensed with by the Company but no recovery of the emoluments/salaries paid to him from the date of his reinstatement into service till disposal of appeal by the Supreme Court shall be made from him in any manner whatsoever.

(p) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal to Service Tribunal barred by limitation ‑‑‑Condonation‑‑‑Appointment of management trainee by a Company/Corporation initially for a period of six months‑‑‑Such employee served the Company for three/four years and his services were terminated without issuing any show‑cause notice to him‑‑‑Employee, aggrieved by the termination of his service approached the Service Tribunal for redress of his grievance‑‑‑Service Tribunal dismissed his appeal being time‑barred observing that though the employee was terminated from service by order dated 26‑9‑1997 but he filed the appeal on 23‑7‑1999‑‑‑Record showed that the employee, before approaching the Service Tribunal had filed a Constitutional petition before the High Court wherefrom he was directed to approach the Service Tribunal for redress of his grievance after which the employee filed appeal to the Service Tribunal which showed that employee had not only approached the High Court but also filed appeal before the Service Tribunal and Service Tribunal in such‑like cases had condoned the delay‑‑‑Such being a clear case of misreading of evidence, Supreme Court converted the petition into appeal and remitted the case to the Service Tribunal for decision afresh after discussing the case on merits and sympathetically considering the delay, if any, in filing appeal before the Tribunal by the employee.

(q) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5‑‑‑Condonation of delay‑‑‑Plea of poverty of the party does not constitute a valid ground for condoning the delay.

(r) Civil Services---

‑‑‑‑Contract assignment could not become permanent by efflux of time.

(s) Civil service‑‑

‑‑‑‑‑‑ Contract period of employment" and "probationary period" have distinct connotation altogether‑‑‑Principles.

Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82; Abdul Samad and others v. Federation of Pakistan and others 2002 'SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555 distinguished.

Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82; Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa. Shaikh PLD 2001 SC 176; WAPDA v. Khanimullah 2000 SCMR 879; R v. Secretary to State for the Home Department Ex parte Khan (1985) 1 All ER 40; Messrs Pakistan State Oil Co. Ltd. v. Muhammad Tahir Khan, PLD 2001 SC 980; Sui Southern Gas Company Ltd. v. Engineer Narain Das PLD 2001 SC 555; Council of Civil Service Unions and others v. Minister for the Civil Service (1984) 3 Ail ER 950; PIAC v. Koural Channa 1999 PLC (C.S.) 1539; Agha Salim Khurshid v. Federation of Pakistan 1998 SCMR 1930; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71; Kishu Mal v. Sui Southern Gas Co. Ltd. C.Ps. Nos.401‑K, 407‑K, 408‑K and 406‑K of 2000; Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612; Hameed Akhtar Niaz; v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Ahmad Ali and others v. Government of N.‑W.F.P. through Chief Secretary and others 1998 SCMR 183; Syed‑ Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle‑1, Gujranwala v. Government of the Punjab through Services, General Administration and Information Department, Punjab Secretariat, Lahore 1996 SCMR 645; Ghulam Sarwar Bhutto v. Chief Secretary to Government of Sindh and others 2000 SCMR 104; Syed Aftab Ahmed v. K.E.S.C. and others 1999 SCMR 197; Azimullah, Ex‑Inspector v. Chairman, Board of Trustees, Abandoned Properties Organization, Cabinet Secretariat, Cabinet Division, Islamabad and 2 others 2001 PLC (C.S.) 358; Nazeer Ahmed v. Managing Director, Sui Southern Gas ,Company Limited, Karachi Appeal No.253‑K of 1999; Barkat Ali Shah v. Regional Chief Executive, decided on 25‑10‑2000; Zahir Ullah v. Chairman, WAPDA, Lahore 2000 SCMR 826; Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly AIR 1986 SC 1571; Mrs. Anisa Rehman v. PIAC 1994 SCMR 2232; Habib Bank Ltd. v. Syed Zia‑ul‑Hasan Kazmi 1998 SCMR 60; United Bank Ltd. v. Ahsan Akhtar 1998 SCMR 68; Ms. Zeba Mumtaz v. First Women Bank Ltd. PLD 1999 SC 1106; Fazal Elahi Siddiqi v. Pakistan through Secretary, Establishment Division PLD 1990 SC 692; Chairman, PIAC v. Nasim Malik PLD 1990 SC 951; Samiullah, Managing Director, Sui Southern Gas Co. Ltd. (Judgment dated 13‑10‑2000); Pakistan Railways through General Manager v. Ghulam Rasul 1997 SCMR 1581 and Maqbool Ahmed v. Hakoomat‑e‑Pakistan 1991 SCMR 2063 ref.

Wasim Sajjad, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate‑on‑Record for Appellants (in C.As. Nos.367 to 378/2001, 1113 to 1 124/2001) and for Petitioners (in CPs. Nos. 745 to 760;'2101. 1263 to 1341 / 2001. 1877 to 1921 /2001, 1926 , 1934 to 206 7 ; 2W l . 1381 /2001) and for Respondent No. l (in C. A. No.120/99).

Abdul Hafiz Pirzada. Senior Advocate Supreme Court with Mchr Khan Malik, Advocate‑on‑Record for Appellant (in C.A. No.366 of 2001,).

Muhammad Akram Sheikh, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record and M.A. Zaidi,\advocate‑on‑Record for Appellants (in C.As. Nos.613 to 637. 985 and 986/2001).

Hafiz S.A. Rahman, Senior Advocate Supreme Court with Mehr Khan Malik. Advocate‑on‑Record for Appellants (in C.As. Nos.648 to 655/2001 and for Petitioner (in C.Ps. No.2112, 1459 and 1515/2001).

Ch. Muhammad Jamil, Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record and A.S.K. Ghori, Advocate‑on‑Record for Respondents (in all Appeals/Petitions) and for Appellant‑(in C.A. No. 12011999).

Makhdoom Ali Khan, Attorney‑General for Pakistan, Muhammad Nawaz Bhatti, Deputy Attorney‑General and Raja Abdul Ghafoor. Advocate‑on‑Record for the Federation.

Dates of hearing: 17th. 18th, 19th arid 26th September, 2001.

PLD 2002 SUPREME COURT 167 #

P L D 2002 Supreme Court 167

Present: Irshad Hasan Khan, CJ, Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

FEDERAL PUBLIC SERVICE COMMISSION and others‑‑‑Appellants

versus

Syed MUHAMMAD AFAQ and others‑‑‑Respondents

Civil Appeals Nos. 4 to 10 of 2001, Civil Petitions Nos. 1778 to 1780 of 2001, Civil Appeals Nos.1283 and 1297 of 1999, decided on 21st November, 2001.

(On appeal from judgments respectively dated 8‑8‑2000, 26‑4‑2001, 16‑6‑2001, 23‑6‑1999 and 11‑11‑1998, passed by the High Court of Sindh, Karachi, High Court of Balochistan, Quetta and Lahore High Court, Rawalpindi Bench, Rawalpindi respectively in C. Ps. Nos.1119, 1894, 1938, 2072 of 1999 and 461, 837 and 933 of 2000, C.P.D‑1648 of 2000, 1653 of 2000 and 1626 of 2000 and C.P. No.474 of 1999 and I.C.A. No. 127 of 1998).

Civil Procedure Code (V of 1908)‑‑

‑‑‑‑O. XXVII‑A, R.1‑‑‑Competitive Examination Rules, 1997, R.6(a)(iii)‑‑Constitution of Pakistan (1973), Arts. 185 & 199‑‑‑Controversy raised before the High Court was about the vires of R.6(a)(iii) of the Competitive Examination Rules, 1997 which was examined in the absence of the Attorney‑General for Pakistan whereas material on the record did not show that any notice was issued to the Attorney‑General‑‑‑Validity‑‑‑Mere hearing of the Deputy Attorney‑General and affording full opportunity to the Federal Government or the Public Service Commission would not constitute substantial compliance of the mandatory provisions of O.XXVII‑A, R. 1, C.P.C.‑‑‑No notice having been given to the Attorney‑General for Pakistan, judgment of the High Court stood vitiated on that ground‑‑‑Supreme Court, in circumstances, remanded the case to the High Court with the direction that before proceeding to determine the question involved in the matter, notice be issued to the Attorney‑General for Pakistan in terms of O.XXVII‑A, R.1, C.P.C.

Federation of Pakistan v. Aftab Ahmed Khan Sherpao PLD 1992 SC 723 quoted.

Sardar Muhammad Aslam, Deputy Attorney‑General and Ch. Akhtar Ali, Advocate‑on‑Record for Appellants din C.As. Nos. 4 to 10 of 2001).

M. Akram Sheikh, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents (in C.As. Nos.5 to 7 of 2001).

A. Rahim Kazi, Advocate Supreme Court for Respondents (in C.Ps. Nos. 1778 and 1779 of 2001).

Abdul Karim Khan Kundi, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondent (in C. P. No. 1780 of 2001).

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant (in C.A. No.1297 of 1999).

Sardar Muhammad Aslam, Deputy Attorney‑General and Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents (in C. As. Nos. 1283 to 1297 of 1999).

Mahmoodul Islam, Advocate‑on‑Record (absent) for Appellant (in C.A. No. 1283 of 1999).

Date of hearing: 21st November, 2001.

PLD 2002 SUPREME COURT 170 #

P L D 2002 Supreme Court 170

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh and Rana Bhagwandas, JJ

Prince A. M. ABBASI and another‑‑‑Appellants

versus

FEDERAL GOVERNMENT through Secretary and 24 others‑‑‑Respondents

Civil Appeal No. 1915 of 1998 and Civil Miscellaneous Application No. 1811 of 2000, decided on 12th November, 2001.

(On appeal from the judgment dated 3‑7‑1997 of the Lahore High Court, Lahore, passed in Writ Petition No. 16554 of 1995).

Devolution and Distribution of Properties (Ameer of Bahawalpur) Order, 1969‑‑‑

‑‑‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Inheritance of property left by late ameer of Bahawalpur‑‑‑Dispute as to distribution of such property‑‑Interim package for distribution of the property by two Commissions appointed by the Government did not meet the ends of justice and was also not in accordance with directions of Supreme Court contained in various pronouncements with regard thereto in general and in two cases viz. Government of Pakistan v. H.H. Nawab Muhammad Abbas Khan Abbasi and others PLD 1982 SC 367 and H.H Nawab Muhammad Abbas Khan Abbasi v Government of Pakistan PLD 1984 SC 67 in particular which warranted that the controversy had to be resolved afresh in accordance with the direction contained in the said decisions of the Supreme Court‑‑‑Supreme Court, in circumstances, directed that a Committee headed by a retired Judge of the Supreme Court be constituted by the Federal Government and all the assistance that would, of necessity, be appropriate in resolving the‑ legal and factual issues under the guidance of the retired Judge of the Supreme Court heading the Committee would tend to minimize pitfalls and further litigation between the parties‑‑‑Appointment of the retired Judge of the Supreme Court as Head of the Committee which was to be merely a recommendatory body and not a body to decide the matter finally would not amount to abdication of power of the Federal Government in its favour‑‑‑Committee shall make only recommendations qua distribution of the property of Ameer of Bahawalpur but the ultimate decision would rest with the Federal Government in the matter which could pass any order it deemed fit as the Federal Government would not be bound by the recommendations of the Committee.

In the circumstances of the case, the interim package announced by the Enquiry Commission appointed by the Federal Government does not meet the ends of justice and is also not in accordance with the direction of the Supreme Court contained in various pronouncements with regard thereto in general and the two cases: one filed by the Government of Pakistan PLD 1982 SC 367 and the other by Brig. H.H. Nawab Muhammad Abbas Khan Abbasi PLD 1984 SC 67 in particular.

The perusal of these judgments and the record, thus warrants that the controversy shall have to be resolved afresh in accordance with the direction contained in the case of Government of Pakistan PLD 1982 SC 367 and the observation made subsequently in Review Petition in Brig. H.H. Nawab Muhammad Abbas Khan Abbasi by Supreme Court in PLD 1984 SC 67.

No doubt, the Federal Government is the exclusive authority vested with the power to distribute the property of Amir of Bahawalpur according to the Presidential Order but it has not been debarred from seeking assistance of either the servants of the Federal Government or any other person/expert in the concerned‑field before exercising the power, therefore, the appointment of a retired Judge of Supreme Court as head of the Committee which is merely recommendatory body and not a body to decide the matter finally, does not amount to abdication of power by the Federal Government in its favour. The said Committee shall make only recommendations qua distribution of the property of Amir of Bahawalpur but the ultimate decision rests with the Federal Government in the matter which can pass any order it deems fit as it will not be bound by the recommendations of the Committee.

The Committee headed by a retired Judge of Supreme Court has yet to be constituted by the Federal Government and all the assistance that would, of necessity, be appropriate in resolving the legal and factual issues under the guidance of the retired Judge of Supreme Court heading the Committee, would tend to minimize pitfalls and further litigation between the parties. In the interest of justice, equity and fair play and in order to decide the controversy once for all, the Committee to be constituted by the Federal Government for making recommendations shall be headed by a retired Judge of Supreme Court.

Supreme Court named the Retired Judge of the Supreme Court to head the Committee for ascertaining the properties left by the late Amir of Bahawalpur, the extent of the shares of various claimants therein and to suggest the mode of the distribution of the properties amongst the claimants/heirs, in the light of the two judgments rendered by this Court in (i) Government of Pakistan v. His Highness Nawab Muhammad Abbas Abbasi and others PLD 1982 SC 367 and (ii) Brig. H.H. Nawab Muhammad Abbas Abbasi and others v. Government of Pakistan and others PLD 1984 SC 67 and make recommendations to the Federal Government of Islamic Republic of Pakistan accordingly.

The retired Supreme Court Judge was asked to conclude the recommendations within three months if possible. The constitution of the Committee shall be finalized and communicated by the Federal Government in the concerned Ministry to the Retired Judge of Supreme Court within sixty days with effect from the date of judgment.

Government of Pakistan v. His Highness Nawab Muhammad Abbas Abbasi and others PLD 1982 SC 367; Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Amir of Bahawalpur v. Government of Pakistan and others PLD 1984 SC 67; Dina Sohrab Katrak's case PLD 1959 SC (Pak.) 45 and Anisa Rehman's case 1994 SCMR 2232 ref.

Naveed Rasul Mirza, Advocate Supreme Court and Kh. Mushtaq Ahmad, Advocate‑on‑Record for Appellants.

M. Nawaz Bhatti, Deputy Attorney‑General and Mehr Khan Malik, Advocate‑on‑Record for Applicant (in C.M.A. No. 1811 of 2000).

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court and M.S. Khattack, Advocate‑on‑Record for Respondents Nos. 23 to 25.

Abdul Karim Khan Kundi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No.2.

Abdul Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents Nos.3 and 4.

Ch. Fazle Hussain, Advocate‑on‑Record for Respondent No.5.

S. Hamid Ali Shah, Advocate Supreme Court for Respondents Nos.6, 8 and 10.

Raja Abdul Ghafoor, Advocate Supreme Court for L.Rs.' of Respondent No. 14.

Ejaz Ahmad Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for L.Rs. of Respondent No. 15.

Syed Abul Aasim Jafri, Advocate‑on‑Record for Respondent No. 16.

M. Bilal, Senior Advocate Supreme Court and Sh. Riazul Haq, Advocate Supreme Court for Respondents Nos. 17 to 20.

Dates of hearing: 17th and 18th September, 2001.

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P L D 2002 Supreme Court 184

Present: Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

C.As, Nos. 1864 and 1865 of 2001

Ch. NAZIR AHMED and others‑‑‑Appellants

versus

CHIEF ELECTION COMMISSIONER and 4 others‑‑‑Respondents

Civil Petition No.2690 of 2001

Sardar RAFIQUE HAIDER KHAN LEGHARI and another‑‑‑Petitioners

versus

DISTRICT AND SESSIONS JUDGE/RETURNING OFFICER, RAHIMYAR KHAN and others‑‑‑Respondents

Civil Appeals Nos. 1864, 1965 of 2001 and Civil Petition for Leave to Appeal No.2690 of 2001, decided on 23rd October, 2001.

(On appeal from the judgment dated 7‑8‑2001 of the Lahore High Court, Multan Bench, Multan passed in Writ Petitions Nos.6875 and 6876 of 2001 and judgment dated 14‑9‑2001 of the Lahore High Court Circuit Bench, Bahawalpur passed in Writ Petition No.4029 of 2001).

(a) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 34(6) & 39(4)(a)(b)(c) & (e)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Voting procedure‑‑‑Leave to appeal was granted by Supreme Court to further examine the finding of High Court to the effect that the District Returning Officer was quite right in counting the ballot papers in question for favouring one or the other candidate in the elections although the same did not bear the "marking aid rubber stamp" and that writ petitions were not maintainable.

(b) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 34 & 39‑‑‑Voting procedure‑‑‑Proceedings at the close of the poll‑‑Provisions of Rr.34 & 39, Punjab Local Government Elections Rules, 2000 are directory and not mandatory‑‑‑Validity of election and election of the returned candidate having been challenged, Election Tribunal could order run‑off election as an ancillary relief, even if a mandatory provision of law was violated an election could not be called into question except through an election petition where a remedy was available‑‑‑Primary purpose of a mark on a ballot paper was to ensure that the intention of the voter was unambiguously expressed, a mark on the ballot papers which clearly revealed the intention of the voter but did not disclose his identity had to be accepted as a valid exercise of vote and interpretations which would disenfranchise voters ought to be avoided‑‑‑Strained interpretation of law which would compel the State to hold fresh elections and burden the exchequer ought to be avoided also.

In the present case the appellants have questioned the validity of the election and challenged the election of the returned candidates, the Election Tribunal can order run off election as an ancillary relief, even if a mandatory provision of law is violated an election cannot be called into question except through an election petition where a remedy is available, rules 34 and 39 of the Rules are directory and not mandatory, the primary purpose of a mark on a ballot paper is to ensure that the intention of the voter is unambiguously expressed, a mark on the ballot paper which clearly reveals the intention of the voter but does not disclose his identity has to be accepted as a valid exercise of vote and interpretations which would disenfranchise voters ought to be avoided and strained interpretations of the law which would compel the State to hold fresh elections and burden the exchequer ought to be avoided.

Presiding Officer v. Sadruddin Ansari and another PLD 1967 SC 569 distinguished.

‑‑‑‑Rr. 70, 73, 42(5) & 55‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Maintainability‑‑‑Rule 70, Punjab Local Government Elections Rules, 2000 expressly prohibits any election held under the Punjab Local Government Elections Ordinance, 2000 to be called in question except by an election petition made by a candidate for that election before the Election Tribunal‑‑‑Constitutional petition under Art. 199 of the Constitution of Pakistan (1973) was not maintainable under R.70 of the Punjab Local Council Elections Rules, 2000‑‑‑Principles.

Rule 70, Punjab Local Government Elections Rules, 2000 expressly prohibits any election held under the Punjab Local Government Elections Ordinance, 2000 to be called in question except by an election petition made by a candidate for that election before the Election Tribunal. The appellants and the petitioners in the present case were candidates in the election in which the contesting respondents were notified as 'returned candidates' by the competent authority under sub‑rule (5) of rule 42 read with rule 55 of the Rules and the Election Tribunals have also been admittedly appointed by the Chief Election Commissioner through a notification issued under Rule 73 of the Rules, therefore, there can be no dispute with the proposition that the writ petitions were squarely hit by the statutory prohibition contained in rule 70 of the Rules. Moreover, the embargo on grant of any relief in exercise of jurisdiction under Article 199 of the Constitution in presence of an alternate remedy was fully attracted. The relief claimed in the writ petitions could be allowed in election petitions, therefore, an alternate remedy was available to the petitioners which is certainly an adequate and efficacious remedy in view of the scheme and contents of the Punjab Local Government Elections Ordinance, 2000 and the Rules.

The Writ Petitions were not maintainable under rule 70 of the Rules.

Presiding Officer v. Sadruddin Ansari and another PLD 1967 SC 569 distinguished.

(d) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R. 70‑‑‑Constitution of Pakistan (1973), Arts. 225, 189 & 199‑‑‑Election dispute‑‑‑Election petition‑‑‑Guidance for dealing with election disputes‑‑Regardless of similarity of the prohibition contained in Art.225 of the Constitution and R. 70 of the Punjab Local Government Elections Rules, 2000 the principles of law enunciated in the Supreme Court judgments which provide guidance for dealing with election disputes and determining the availability and adequacy of the alternate remedy, have a binding effect under Art.189 of the Constitution and govern all election matters whether Art. 225 of the Constitution is applicable or not.

Jamal Shah v. Election Commission PLD 1966 SC 1 distinguished.

(e) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 39(iii)(b)(c), 42(5), 55, 80 & 83‑‑‑Result of the election was alleged to have been materially affected on account of the failure of Returning Officers to comply with the mandatory provisions of Rr.39(iii)(b)(c), 42(5) read with R.55 of the Punjab Local Government Elections Rules, 2000‑‑Grievance squarely fell within the ambit of R.83(a) of the said rules and as such could be redressed by Election Tribunal which in the event of declaring the election as a whole to be void could make any appropriate order, as a consequential relief, within the purview and framework of the Punjab Local Government Elections Ordinance, 2000 and the Rules including an order for run‑off elections‑‑‑Principles.

In the present case the main grievance of the appellants/petitioners was that the Returning Officer in the case of the appellants and the District Returning Officer in the case of the petitioners had declared valid the votes rejected by the Presiding Officers in the face of the mandatory provisions of sub‑clauses (b) and (c) of clause (iii) of rule 39 of the Punjab Local Government Elections Rules, 2000 that those ballot papers shall be excluded from the count which bear any writing or any mark other than the official mark and the mark of 'marking aid rubber stamp' or no mark of 'marking aid rubber stamp' indicating the contesting candidate for whom the elector had voted. Another grievance expressed by the petitioners was that the District Returning Officer had recounted the votes after consolidation of results although he was duty‑bound to publish the names of the appellants/petitioners in the official Gazette as the returned candidates in view of sub‑rule (5) of rule 42 read with rule 55 of the Punjab Local Government Elections Rules, 2000. It was contended by the appellants/petitioners that the Election Tribunal was not empowered to redress the grievances of the appellants/petitioners and even if it is presumed to be so empowered it was not invested with power to grant the relief of runoff election i.e. fresh election in which the joint candidates securing the highest and the second highest number of votes shall be contestants. The result would be unsavoury as all the panels of candidates would become entitled to participate in the fresh election.

The contentions were misconceived. As envisaged by rule 80 of the said Rules the Election Tribunal may upon the conclusion of the trial of an election petition, make an order: (a) dismissing the petition; (b) declaring the election of the returned candidates to be void; (c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; (d) declaring the election as a whole to be void. The grounds for declaring election as a whole to be void are contained in rule 83 of the Rules.

The pith and substance of the grievances of the appellants/petitioners was that the result of the election had been materially affected on account of the failure of the Returning Officers to comply with the mandatory provisions of sub‑clauses (b) and (c) of clause (iii) of rule 39 of the Rules and failure of the District Returning Officer to comply with the provisions of sub‑rule (5) of rule. 42 read with rule 55 of the Rules. The grievances of the appellants/petitioners thus squarely fell within the ambit of clause (a) of rule 83 of the Rules and as such could be redressed by the Election Tribunal which in the event of declaring the election as a whole to be void can make any appropriate order, as a consequential relief. within the purview and framework of the Punjab Local Government Elections Ordinance, 2000 and the Rules including an order for run‑off elections.

Presiding Officer v. Sadruddin Ansari and another PLD 1967 SC 569; Jamal Shah v. Election Commission PLD 1966 SC 1; S. Yousaf Ali Shah v. Election Tribunal, West Pakistan PLD 1967 Pesh. 207; Mukhtar Hussian Shah v. Wasim Sajjad PLD 1986 SC 178; Dr. Sher Afgan v. Aamar Hayat Khan 1987 SCMR 1987; Irshad Ahmed v. Shafi Muhammad and 5 others 1981 CLC 1332; Sahibzada Abdul Latif v. Sardar Khan 1996 SCMR 1496; Ch. Muhammad Abdullah v. Ch. Abdul Wakil and others PLD 1986 SC 487; Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396; Bartha Ram v. Mehar Lal Bheel 1995 SCMR 684; Mirza Hassan Mahmood v. Ch. Muhammad Yousaf and others 2000 SCMR 1678; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299; Khuda Bakhsh v. Mir Zafarullah Khan Jamali 1997 SCMR 561 and Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863 ref.

Shahzad Jehangir, Senior Advocate Supreme Court, M. Ramzan Chauhdry, Advocate Supreme Court and Mahmood A. Qureshi; Advocate-on‑Record (absent) for Appellants (in both Appeals).

Mian Allah Nawaz, Advocate Supreme Court for Respondents Nos.4 and 5 (in C.A. No. 1864 of 2001).

M. Rafiq Rajwana, Advocate Supreme Court for Respondents Nos.4 and 5 (in C. A. No. 1865 of 2001).

Nemo for the Official Respondents (in both Appeals).

M. Bilal, Senior Advocate Supreme Court, Sh. Riazul Haq, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Petitioners.

Umai Atta Bandial, Advocate Supreme Court and M. S. Khattak, Advocate‑on‑Record for Respondent No.3 (in C.P. No.2690 of 2001).

Nemo for the Official Respondents (in C.P. No.2690 of 2001).

Makhdoom Ali Khan, Attorney‑General for Pakistan (On Court's Notice) (in Civil Appeals).

Dates of hearing: 8th to 12th October, 2001.

PLD 2002 SUPREME COURT 200 #

P L D 2002 Supreme Court 200

Present: Muhammad Bashir Jehangiri and Nazim Hussain Siddiqui, JJ

HAKEEM SHAH and 16 others‑‑‑Appellants

versus

SAWAB KHAN and 17 others‑‑‑Respondents

Civil Appeal No.21 of 1995, decided on 21st November, 2001.

(On appeal from the judgment dated 19‑2‑1994 of the Peshawar High Court, Circuit Bench, Abbottabad passed in Civil Revision No.28 of 1987).

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 39‑‑‑Limitation Act (IX of 1908), Art.144‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Supreme Court granted leave to appeal to consider, whether land in dispute was in the nature of "Seri", which once given could not be revoked, it being a grant and not tenancy and the occupants were treated as "Maalikan‑e‑Qabza", and that in absence of any general or special custom, it could neither be claimed nor was proved in the case of Village Bishankot, and thus, High Court was legally not correct in holding that appellants though "Seri Khors" could not be termed as "Maalikan‑e‑Qabza" and were not liable to be dispossessed on such score.

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

‑‑‑‑S. 39‑‑‑Limitation Act (IX of 1908), Art.144 ‑‑‑ Entry of in column of rent of Record of Rights, if irreconcilable with entry of column of cultivation, would not be, of any help to those recorded in column of cultivation as tenants.

‑‑‑‑Art. 144‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S. 39‑‑Adverse possession‑‑‑Proof‑‑‑Burden of proof lies on the person setting up adverse possession that he was holding the property adversely to its rightful owner‑‑‑Where the entries are irreconcilable, the person setting up adverse possession must fail.

Shamsur Rehman v. Hukmat Shah PLD 1967 Pesh. 304 ref.

(d) Adverse possession‑‑‑

‑‑‑‑ Limitation Act (IX of 1908), Art. 144‑‑‑Mere non‑payment of rent for any length of time would not constitute adverse possession.

Shamsur Rehman v. Hukmat Shah PLD 1967 Pesh. 304 ref.

(e) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Art. 144‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S. 39‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Adverse possession‑‑Respondents filed suit for possession‑‑‑Appellants repudiated the respondents' title asserting that they being "Seri Khors" had become owners of land and pleaded adverse possession‑‑‑Trial Court decreed the suit‑‑Appeal and revision filed by appellants were dismissed by Appellate Court and High Court respectively‑ ‑Validity‑‑‑Nothing had been brought on record to prove that land in the nature of "Seri" once granted could not be revoked on the ground that it was a grant and not tenancy‑‑‑No special or general custom in Village Bishankot had been proved that "Seri Khors" recorded in column of cultivation as tenants in column of rent as (bila lagan bawaja seri ) could claim the title of land particularly when entries of column of rent were irreconcilable with those of column of cultivation or proprietary column‑‑‑Malekan‑e‑Qabza according to Punjab Settlement Manual were those owners of land, who had purchased it without share of Shamilat in village and were recorded in column of cultivation as (Malekan‑e‑Qabza), and not as tenants‑‑‑Appellants had been misdescribed to be (bila lagan bawaja seri ) because they stood recorded in column of rent as (bila lagan bawaja seri ) ‑‑High Court had rightly held that appellants though "Seri Khors" could not be treated as (Malekan‑e‑Qabza)‑‑‑Entries of "column of Lagan" and "column of cultivation" being inter se irreconcilable, appellants could not have repudiated the title of proprietary body recorded in record of rights‑‑‑Implication of such irreconcilable entries was that "Seri Khors" were not entitled to remain in possession of land by virtue of their status as tenants in the column of cultivation and ( j(G yt.) in the column of rent, and that proprietary body of village notionally remained owners of the land‑‑‑Long standing entries of Revenue Record would show that usufruct of suit‑land had to be enjoyed by Seri Khors and that proprietary body of village could take possession thereof, if their rights were repudiated by Seri Khors‑‑Appellants had repudiated title of those recorded in proprietary column, therefore, they had been rightly adjudged as liable to be dispossessed‑‑‑Findings of Court below affirmed by High Court being well-founded did not warrant interference by Supreme Court in its jurisdiction under Art.185(3) of Constitution‑‑‑Appeal was dismissed as without merit.

Azizur Rehman and others v. Attai Khan and others PLD 1976 Pesh. 60; Punjab Settlement Manual by Sir James M. Douie, 5th Edn.; Shamsur Rehman v. Hukmat Shah PLD 1967 Pesh. 304 and Tehmas and 16 others v. Dawar Khan and 7 others PLD 1990 SC 629 ref.

(f) Words and phrases‑‑

‑‑‑‑"Malekan‑e‑Qabza" (Malekan‑e‑Qabza)‑‑‑Connotation.

Punjab Settlement Manual by Sir James M. Douie, 5th Edn. ref.

Muhammad Munir Peracha, Advocate Supreme Court and Ch, Akhtar Ali, Advocate‑on‑Record for Appellants.

S. Sajjad Hassan Shah, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 22nd November, 2001.

PLD 2002 SUPREME COURT 208 #

P L D 2002 Supreme Court 208

Present: Sh. Riaz Ahmed, Rana Bhagwan Das and Mian Muhammad Ajmal, JJ

PAKISTAN through Ministry of Finance Economic Affairs and another‑‑‑Appellants

versus

FECTO BELARUS TRACTORS LIMITED‑‑‑Respondent

Civil Appeal No. 1176 of 1997 out of Civil Review Petition No.80 of 1999, heard on 26th September, 2000.

(On Review from the judgment of this Court dated lat of September, 1999 in C.A. No. 1176 of 1997 filed against the judgment of Lahore High Court, Lahore, dated 4‑8‑1997 passed in I.C.A. No.84 of 1997).

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

‑‑‑‑Art.188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment‑‑‑Rearguing the appeal at review stage ‑‑‑Validity‑‑Distinction existed between review and rehearing and attempt to reargue the appeal at review stage was not permissible.

1982 SCMR 350; 1982 SCMR 1152; 1983 SCMR 177 and 1986 SCMR 1021 ref.

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

‑‑‑‑Art.l88‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court Judgment‑‑‑Exercise of power by Supreme Court ‑‑‑Scope‑‑Where Court had overlooked some material question of fact or of law which would have a bearing on the decision or there was otherwise some mistake or error apparent on the face of the record, the power of review could be exercised.

‑‑‑‑O.XXVI, R.I‑‑‑Review of Supreme Court‑‑‑Judgment‑‑‑Expression "mistake or error apparent on the face of the record" used in O.XXVI, R.1, Supreme Court Rules, 1980‑‑‑Connotation‑‑‑Such error may be an error of fact or of law but must be self‑evident and floating on surface‑‑‑Orders based on erroneous assumption of material facts, or without adverting to a provision of law, or a departure from undisputed construction of law and Constitution, may, however, amount to error apparent on face of record.

PLD 1979 SC 741; 1975 SCMR 115; PLD 1984 SC 67 and Sikandar Abdul Karim v. The State 1998 SCMR 908 ref.

(d) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.19 & 31A‑‑‑Exemption, withdrawal of‑‑‑Provisions of S.31‑A of Customs Act, 1969‑‑‑Nature‑‑‑Taking effect of withdrawal/modification of exemption‑‑‑Scope‑‑‑Provisions of S.31‑A, Customs Act, 1969 is declaratory provision of law legislated to nullify dictum of law laid down by the Supreme Court in Al‑Samrez's case (1986 SCMR 1917)‑‑‑Withdrawal of exemption or concession by S.31‑A of the Customs Act, 1969 has a reference to provision of S.19 of Customs Act, 1969‑‑‑Non obstante clause in S.31‑A of Customs Act, 1969, has the effect of setting at naught the effect of Supreme Court judgment in Al‑Samrez's case‑‑‑Consequences that follow from the Act of withdrawal or modification of exemption notification under S.31‑A of Customs Act, 1969, tale effect with reference to the dates of its issue irrespective of the fact that the contract for the import of goods and the letter of credit had come into existence prior to such date‑‑Courts have to give effect to such withdrawal or modification of concession, notwithstanding the decision of Supreme Court in Al‑Samrez's case.

Al‑Samrez's case 1986 SCMR 1917; Yaseen Sons v. Federation of Pakistan PLD 1989 Kar.361; Hajira Rashid Gardezi v. The Deputy Collector of Customs PLD 1989 Lah. 38; Federation of Pakistan v. Amjad Hussain Dilawari 1992 SCMR 1270 and Molasses Trading & Export Limited v. Federation of Pakistan 1993 SCMR 1905 ref.

(e) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.31‑A‑‑‑Sales Tax Act (VII of 1990), S.3‑‑‑Notification S.R.O. No.1189(1)/94, dated 11‑12‑1994‑‑‑Exemption, withdrawal of‑‑‑Sales tax, levy of‑‑‑Import of tractors was exempted from payment of sales tax vide Notification S.R.O. No.1189(1)/94, dated 11‑12‑1994‑‑‑Petitioner had concluded the contract with the exporter in respect of the imported goods and letter of credit had also been opened in favour of the supplier ‑‑‑Authorities issued notices for recovery of sales tax for such import‑‑‑Validity‑‑‑Contract had already been concluded between the importer and the supplier of the tractors, therefore, subsequent withdrawal of exemption from sales tax could not be pressed into service for protecting the levy of sales tax by the latte: Notification and provisions of S.31‑A of Customs Act, 1969, could not bi invoked for the protection of levying of sales tax.

Yaseen Sons v. Federation of Pakistan 1990 CLC 1989; Crescent Pak Industries v. Central Board of Revenue 1990 PTD 29 and Muhammad Abdullah v. Government of Pakistan PLD 1992 Kar. 266 ref.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment‑‑‑Escaping of an important legal aspect is an error apparent on the face of record which can be set right and such aspect can be reviewed.

(g) Estoppel‑‑‑

‑‑‑‑'Promissory estoppel', doctrine of‑‑‑Concept‑‑‑Doctrine of promissory estoppel has been variously called 'promissory estoppel', 'requisite estoppel', 'quasi‑estoppel' and 'new estoppel'‑‑‑Doctrine is evolved by equity to avoid injustice and though commonly named 'promissory estoppel', it is neither in the realm of contract nor in realm of estoppel ‑‑‑True principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create' legal relations or effect a legal relationship to arise in future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon the same, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre‑existing relationship between the parties or not‑‑‑Doctrine of promissory estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term‑‑‑Promissory estoppel is an equitable principle evolved by the Courts for doing justice and the same should be given only a limited application by way of defence, furthermore, the principle is available as a, cause of action.

M.P. Sugar Mills v. State of UP AIR 1979 SC 621 and Robertson v. Ministry of Pensions (1948) 2 All ER 767 ref.

(h) Estoppel‑‑

‑‑‑‑Promissory estoppel, doctrine of‑‑‑Applicability‑‑‑Principles.

Following are the principles to elaborate doctrine of promissory estoppel:

(1) Doctrine of promissory estoppel cannot be invoked against the Legislature or the laws framed by it because the Legislature cannot make a representation.

(2) Promissory estoppel cannot be invoked for directing the doing of the thing which was against law when the representation was made or the promise held out.

(3) No agency or authority can be held bound by a promise or representation not lawfully extended or given.

(4) Doctrine of promissory estoppel will not apply when no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and

(5) The party which has indulged in fraud or collusion for obtaining some benefit under the representation cannot be rewarded by the enforcement of the promise.

Pakistan through Secretary, Ministry of Commerce and 2 others v. Salah‑ud‑Din and others PLD 1991 SC 546 ref.

(i) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.19 & 31‑A‑‑‑Notification SRO No.1189(1)/94, dated 11‑12‑1994‑‑Sales Tax Act (VII of 1990), S.3‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Constitution of Pakistan (1973), Art.188‑‑‑Review of Supreme Court judgment‑‑‑Customs duty and sales tax, levy of‑‑Withdrawal of exemptions‑Promissory estoppel, doctrine of‑‑‑Applicability‑‑‑Import of tractors was exempted from payment of sales tax vide Notification SRO No.1189(1)/94, dated 11‑12‑1994‑‑‑Importer had concluded the contract with the exporter in respect of the imported goods and letter of credit had also been opened in favour of the supplier‑‑‑Authorities issued notices for recovery of customs duty and sales tax for such import‑‑‑Validity‑‑‑Where under the authorization letter the importer was bound down to sell the tractor at a particular price with exemption from payment of customs duty and sales tax, import by the said importer could not be subjected to customs duty on the principle of promissory estoppel based upon justice and equity‑‑‑Importer would suffer if on the one hand he had to pay the customs duty and sales tax and on the other hand he could not increase the price of the tractor‑‑‑Importer in view of its clear representation and fixation of price by the Competent Authority could not be allowed to suffer injustice at the hands of Government‑‑Government itself, after the withdrawal of Notification had resiled from the same to the extent of the import to be undertaken by the importer‑‑‑Importer being protected by the doctrine of estoppel and under the Economic Reforms Act, 1992, sales tax like customs duty could not be levied upon the import by the said importer‑‑‑Judgment of Supreme Court was reviewed and that of High Court was restored.

Al‑Samrez's case 1986 SCMR 1917 fol.

Collector of Central Excise and Land Customs and others v. Azizuddin Industries Ltd. PLD 1970 SC 439; Mian Nazir Sons Industries Ltd. and another v. The Government of Pakistan and others 1992 SCMR 883; Pakistan through Secretary, Ministry of Commerce and 2 others v. Salah‑ud‑Din and others PLD 1991 SC 546; Union of India v. Godfrej Philips India Ltd. AIR 1986 SC 806; Motilal Padampat Sugar Mills Ltd. v. State of UP AIR 1979 SC 621; Muhammad Abdullah v. Government of Pakistan PLD 1992 Kar. 266; PLD 1990 SC 399 and The Fecto Cement v. The Collector of Customs (Appraisement) and another 1994 MLD 1136 ref.

(j) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.31‑A‑‑‑Levy of customs duty‑‑‑Exemption‑‑‑Importer had acted upon the decision of the Government and in the light of the authorization had opened letter of credit‑‑‑Effect‑‑‑Importer having had acquired a vested right, provisions of S.31‑A of Customs Act, 1969, could not be pressed into service to withdraw the exemption.

(k) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment‑‑‑Earlier decisions of Supreme Court‑‑‑Failure to consider earlier decisions of Supreme Court‑‑‑Effect‑‑‑Where in the judgment under review, the earlier judgments of Supreme Court were not taken into consideration, review of such judgment was justified.

(1) Interpretation of statutes‑‑‑

‑‑‑‑ Statute having overriding effect‑‑‑Interpretation‑‑‑Piece of legislation having overriding effect has to be interpreted in the light of phraseology and the language used by the Legislature.

(m) Interpretation of statutes‑‑‑

‑‑‑‑Fiscal statute‑‑‑ Expression 'economic activity'‑‑‑Scope‑‑‑While interpreting laws relating to economic activity the Courts should view the same with greater latitude than the laws relating to civil rights such as freedom of speech, religion etc. keeping in view complexity of economic problems which do not admit of solution through any doctrine or strait‑jacket formula.

Elahi Cotton Mills v. The Federation of Pakistan PLD 1997 SC 582 ref.

Mansoor Ahmad Khan, Deputy Attorney‑General and Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing: 26th September, 2000.

PLD 2002 SUPREME COURT 228 #

P L D 2002 Supreme Court 228

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh

and Rang Bhagwandas, JJ

STATE BANK OF PAKISTAN, SECURITIES DEPARTMENT

CENTRAL DIRECTORATE through Chief

Manager, Lahore---Appellant

Verses

NAVED AHMAD and 2 others---Respondents

Civil Appeal No.238 of 1999, decided on 6th November, 2001.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 18-3-1998 passed in I.C.A. No. 109 of 1998).

(a) Five Years Foreign Currency Bearer Certificate Rules, 1992---

----S. 11---Public Debt Act (XVIII of 1944), Ss. 2(2)(a)(iii), 11 & 11(1-A)---Public Debt Rules, 1946, R.14---Constitution of Pakistan (1973), Arts. 1850) & 199-.-Supreme Court granted leave to appeal to consider as to whether High Court had rightly found that 8.11 of Five Years Foreign Currency Bearer Certificate Rules, 1992 was ultra vires of S.11 of Public Debt Act, 1944; that what was the nature of Foreign Currency Bearer Certificate, and could it be equated with a bond as had been found by the High Court; that whether Foreign Currency Bearer Certificates were governed by S.2(2)(a)(iii) of. Public Debt Act, 1944; that whether R.14 of Public Debt Rules, 1946 and S.11(1) of Public Debt Act, 1944, were attracted to the facts and circumstances of the case or S.11(1-A) of the Act would govern the situation and that whether in exercise of Constitutional jurisdiction, High Court could give finding as to genuineness of the claim of the respondent.

(b) Five Years Foreign Currency Bearer Certificate Rules, 1992---

----R. 11---Public Debt Act- (XVIII of 1944), Ss.2(2)(a)(i)(ii)(iii)(iv)---- stamp Act (II Of 1899), S.2(5)---Foreign Currency Bearer Certificate, whether bond or Government security---Such certificate could not be construed to be a bearer bond falling under S.2(2)(a)(iii) of Public Debt Act 1944, thus, reliance upon definition of "bond" as given in Stamp Act, 1899 and other Statutes and dictionary meaning of expression "bond" would riot be proper---Such certificates were Government securities, a category apart from securities falling under S.2(2)(a)(i)(ii)(iii) of Public Debt Act; 1944, which would fall within the ambit of S.2(2)(a)(iv) of the Act.

----R. 11---Public Debt Act (XVIII of 1944), Ss. 2(2)(a)(i) to (iv), 11(1) & 11(1-A)---Foreign Currency Bearer Certificate---Issuance of duplicate -certificate---Such certificate being a Government security notified in pursuance of S.(2)(a)(iv) of Public Debt Act 1944, would be governed in matter of issuance of duplicate certificate by S11(11-A) of the Act, providing a right to get duplicate thereof in case it had been defaced or mutilated----Rule 11 of Five Years Foreign Currency Bearer Certificate Rules, 1992", to the extent of prohibiting issuance of duplicate of defaced or mutilated certificates, was ultra vices of the provisions of S-11(1-A) of the Act, which could not be enforced.

(d) Five Years Foreign Currency Bearer Certificate Rules, 1992------

----R. 11---Public Debt Act (VIII of 1944), S.11(1-A)---Public Debt Rules, 1946, 8.2(7)(8)(9)----Foreign. Currency Bearer Certificates affected by termite---Right to obtain duplicate certificate---In the case of mutilated and defaced security, the document itself was available in some torn but it had been destroyed or damaged to the extent of its material parts, whereas in case of lost security, the original document itself was not available with the holder---Where documents themselves were available but in torn pieces having been affected by termite and its material parts were neither visible nor decipherable, such would be a case of mutilated security and would fall within the ambit of S.11(1-Ai of Public Debt Act, 1944_ and holder thereof could riot be denied his right to obtain duplicate certificates.

(e) Five Years Foreign Currency Bearer Certificate Rules, 1992-----

-----R. 11 ---Public Debt Act (XVIII of 1944) S. 11(11-A)---Protection of Economic Reforms Act (XII of 1992). S.3---Protection of Economic Reforms Ordinance XXXIX of 1991, S.3---Protection of Economic Reforms Ordinance (III of 1992), S.3---Consititution Pakistan (1973), Art. 24(1)---Foreign Currency Bearer Certificates, it lost, burnt or destroyed---Right to obtain duplicate thereof---Section 11(1-A) of Public Debt Act, 1944, -provides that duplicate certificates can be issued only in case, they are mutilated or defaced, but not if they are lost, burnt or destroyed- -Such provisions are negating the protection given by Protection of Economic Reforms Act, 1992, to investments and savings made in foreign exchange, for it deprives altogether the owners of their investments and savings---Rules 11 of Five Years Foreign Currency Bearer Certificate Rules, 199.2 and S.11(1-A) of Public Debt Act, 1944 being in conflict with Protection of Economic Reforms Act, 1992, Protection of Economic Reforms Ordinance, 1991 and Protection of Economic Reforms Ordinance, 1992 the later would prevail for having overriding effect and holder of such certificate, even in case the original is lost, burnt or destroyed, would be entitled to get duplicate thereof to make use of his investments and savings--Such interpretation would be in consonance with fundamental rights as enshrined in Art.24(1) of the Constitution.

(f) Five Years Foreign Currency Bearer Certificate Rules, 1992--

----R. 11---Public Debt Rules, 1946, R.14---Public Debt Act (XVIII of 1944), S.11---Protection of Economic Reforms Act (XII of 1992), S.10-- Mutilated, defaced, burnt or destroyed Foreign Currency Bearer Certificates---Issuance of duplicate certificates---Absence of Rules-- Investments and savings made through Foreign Currency Bearer Certificates were protected and saved under Protection of Economic Reforms Act, 1992, and holder of such certificates was entitled to use and derive benefit thereof---In absence of rules regarding issuance of duplicate of such certificates, Public Debt Rules, 1946 relating to other securities in case they were mutilated, defaced lost or burnt, could be invoked and followed.

(g) Five Years Foreign Currency Bearer Certificate Rules, 1992---

----R.11--Public Debt Act (XVIII of 1944), S.11---Public Debt Rules, 1946, R.14---Foreign Currency Bearer Certificates affected by termite--Issuance of duplicate certificates---Broken pieces of damaged original certificates were provided to the Bank---Issuance of such certificates in respondent's name was established from inquiry held by State Bank and its particulars were available in the record maintained by the concerned Bank, which had not yet been encashed by any person---No hindrance thus existed in the way of issuance of duplicate certificates to the holder of such certificates to secure the amount invested by him through such certificates and the profit earned thereby.

(h) Protection of Economic Reforms Act (XII of 1992)---

----Ss. 3 & 10---Protection of Economic Reforms Ordinance (XXXIX of 1991), Ss.3 & 10---Protection of Economic Reforms Ordinance (III of 1992), Ss.3 & 10---Such laws have overriding effect, whereunder savings and investments made in foreign exchange are saved notwithstanding anything contained in any other law to the contrary, and cannot- be altered to disadvantage of beneficiaries in view of solemn commitment given by Federal Government as embodied in different provisions thereof.

Abid- Hassan Minto, Advocate Supreme Court and Ch. Akhtar Ali Advocate-on-Record for Appellant.

Hamid Khan, Advocate Supreme Court for Respondent No. 1.

M. Rashid Awan, Advocate Supreme Court for Respondent No.2. Sardar M. Aslam, D.A.-G. for Respondent No.3.

Date of hearing: 6th November, 2001.

PLD 2002 SUPREME COURT 243 #

P L D 2002 Supreme Court 243

Present: Iftikhar Muhammad Chaudhry

and Hamid Ali Mirza, JJ

CAPITAL DEVELOPMENT AUTHORITY

and others---Appellants.

Versus

Sub. FAQIR SHAH and others---Respondents

Civil Appeals Nos.475 to 478 of 1998, decided on 19th November, 2001.

(On appeal from the judgment dated 21-11-1996 in W.Ps. Nos.448, 449 of 1983 and 136 of 1.984 passed by the Lahore High Court, Rawalpindi Bench).

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

-----Ss.2(k), 30 & 36---Constitution of Pakistan (1973), -Art., 185(3) --- Leave to appeal was granted by the Supreme Court to consider, whether or not the compensation was allowed to owners of land keeping in view the mandate of law contained in Ss.2(k), 30 & 36 of Capital Development Authority Ordinance, 1960.

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

----Art. 189---Decisions of Supreme Court binding on all Courts in Pakistan---Principles.

The responsibility of interpreting the law of the land is of the superior Courts and law interpreted by Supreme Court is binding on all other Courts and on all functionaries of the Government and all other forums, considering same are guidance for all the Courts and Tribunals engaged in the process of administration of justice, so as to keep them in limit and control the exercise of discretion to be exercised by them. It is the duty of every authority, whether judicial or otherwise, to give effect to the law laid down by Supreme Court.

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3 & 4---Capital Development Authority Ordinance (XXIII of 1960), S.36---Contempt of Court---Commissioner reviewed the order of his predecessor on the ground that Supreme Court had misinterpreted the law, which misinterpretation would not be shared by him, thus, calling it as mistake patent on the face of record---Successor Commissioner by such observations had showed disrespect to decisions of Supreme Court and High Court, which prima facie would amount to contempt of Supreme Court warranting legal consequences---Notice was issued to Commissioner to show cause as to why proceedings under Art.204 of Constitution read with Ss.3 and 4 of Contempt of Court Act, 1976, be not initiated against him for showing his wilful disobedience and disrespect to the dignity and decorum of Supreme Court and High Court in violation of such provisions.

(d) Capital Development Authority Ordinance (XIU of 1960)---

----S. 2(k)---Determination of market value classification-wise---Guidelines.

Sardar Begum and others v. Capital Development Authority and others PLD 1977 Lah. 1200; Muhammad Yousaf and others v. Capital Development Authority and others PLD 1976 SC 752; State of West Bengal v. Mrs. Bella Banerjee and others AIR 1954 SC 170; M. Salim Ullah and others v. Province of West Pakistan and others PLD 1960 (W.P.) Lah. 450; Islamization of Laws: In re PLD 1985 FSC 221 and Syed Nazir Ali Shah and others v. The Capital Development Authority, Islamabad PLD 1992 FSC 361 ref.

(e) Capital Development Authority Ordinance (XIII of 1960)---

----Ss. 28, 30 & 31---Land Acquisition Regulation, 1961, Regin. 6--Determination of fair compensation---Scope of enquiry---Factors to be considered --Principles.

The law governing the award of compensation to the owns for the land acquired by the Authority requires that enquiry with regard to compensation is to be conducted in terms of section 20 of the Capital Development Authority Ordinance, 1960 read with para.6 of Land Acquisition Regulation, 1961, considering the true area of land; compensation in Commissioner's opinion to be allowed, and apportionment of such compensation among all the persons whose land is acquired considering their claim and information collected and produced keeping in view the factors as contained in sections 30 and 31 of the Ordinance. The factors which are to be considered are market value of land, damage caused by reason of dispossession besides the value of the land so determined is to include 15 % per annum of such value in consideration of compulsory nature of acquisition. Factors mentioned in section 31 of the Ordinance are not to be ignored while determining compensation.

(f) Capital Development Authority Ordinance (XIII of 1960)---

----Ss. 2(k), 30, 31 & 36---Land Acquisition Regulation, 1961, Regln.6--Constitution of Pakistan (1973), Arts. 185(3), 189 & 199---Constitutional petition---Determination of compensation---Review of order of predecessor Commissioner---Validity---Owners of land were entitled to be awarded just and equitable compensation, but the Commissioner had neither considered relevant provisions of law for assessment of market value and compensation nor had followed the guidelines laid down by Supreme Court and High Court though binding upon him in view of Art.189 of Constitution nor had taken note of use of land on the date of acquisition nor its potential value nor market value classification-wise nor had considered the compensation awarded earlier by the Authority in respect of similar land in the same vicinity---Compensation awarded earlier by predecessor Commissioner in terms of Ss.2(k), 30 & 31 of the Ordinance and, guidelines of Supreme Court and High Court could not be said to be in violation of law liable to be interfered with in exercise of review jurisdiction---Successor Commissioner, in absence of discovery of new and important matter or evidence or error apparent on the face o record or any other sufficient cause could not review a legal and proper order of his predecessor---Supreme Court dismissed the appeal of the Authority holding that. High Court was justified in restoring the order of predecessor Commissioner after setting aside the order of his successor.

Sardar Muhammad Aslam, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant (in C.As. Nos.475 to 477 of 1998) and for Respondent (in C.A.No.478 of 1998).

Gul Zarin Kiani, Advocate Supreme Court for Appellants (in C.A. No.478 of 1998) and for Respondents Nos. 15, 18, 21, 22, 40 to 45 and 45 to 56 (in C.A.No.476 of 1998).

Nemo for Respondents (in C.A. No.475 of 1998).

Sh. Zameer Hussain, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate--on-Record for Respondents (in C.A.No.476 of 1998).

Ch. Muhammad Akram, Advocate-on-Record for Respondents (in C. A. No .477 of 1998).

Date of hearing: 27th September, 2001

PLD 2002 SUPREME COURT 261 #

P L D 2002 Supreme Court 261

Present: Iftikhar Muhammad Chaudhry

and Abdul Hameed Dogar, JJ

MUHAMMAD IDREES‑‑‑Petitioner

Versus

TAJAMMAL HUSSAIN and others‑‑‑Respondents

Civil Petition No.777 of 2000, decided on 1st November, 2001.

(On appeal from the judgment/order dated 1‑5‑2000 passed by Lahore High Court, Lahore in R.S.A. No.49 of 1978).

Oaths Act (X of 1873)‑‑‑--

‑‑‑‑Ss. 9, 10 & 12‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.163‑‑‑Civil Procedure Code (V of 1908), O. XXIII, R. 3‑‑‑Constitution of Pakistan (1973.), Art. 185(3)‑‑‑Decision of suit on Special Oath‑‑‑Applicability of Rule of Caution‑‑‑Defendant's offer for decision of suit on Oath of plaintiffs' father was accepted by plaintiffs and their father appeared in the Court for making statement on oath, butt before his statement could be recorded, defendant made application mentioning therein reasons to resile from his offer‑‑‑Trial Court did not consider the application and on recording statement of plaintiffs' father decreed the suit‑‑‑Defendant's first and second appeals were dismissed‑‑‑Defendant's contention was that Trial Court was bound to examine the reasons mentioned in application and decide same before administering oath by applying the Rule of Caution‑‑‑Supreme Court granted leave to appeal to consider the contention which involved question of public importance with regard to interpretation of Ss.9, 10 & 12 of Oaths Act, 1873 as well as Art. 163 of Qanun‑e‑Shahadat, 1984 and the application of Rule of Caution by the Courts seized with the matter in such‑like cases.

PLD 1970 SC 241; PLD 1970 SC 331, 1974 SCMR 224; 1981 SCMR 162; PLD 1990 SC 841; 1995 SCMR 795; PLD 1990 SC 237 and PLD 1997 SC 823 ref.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioner.

M. Anwar Bhinder, Senior Advocate Supreme Court and Ch.Mehdi Khan Mehtab. Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 1st November, 2001.

PLD 2002 SUPREME COURT 263 #

P L D 2002 Supreme Court 263

Present: Munir A. Sheikh and Rana Bhagwandas, JJ

Haji GHULAM SARWAR---Appellant

Versus

HABIBULLAH and another---Respondents

Civil Appeals Nos.638 and 639 of 1997, decided on 30th October, 2001.

(Appeal against the judgment of Peshawar High Court, D.I. Khan Bench dated 7-2-1996 passed in Civil Revisions Nos.41 and 44 of 1995).

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

----S. 115, O.XLI, Rr. 4 & 33---Reversal of whole decree---Discretion vested in Appellate Court under O.XLI, R.4 read with R.33, C.P.C. to reverse decree and judgment of lower Court in favour of non-appealing party in an appeal or a revision petition, must be exercised judiciously keeping in view the attending circumstance of case and on relevant consideration having logical nexus with the object of law.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 5---Civil Procedure Code (V of 1908), S.115, O.XLI, Rr. 4 & 33--Suit for pre-emption ---Whole decree was challenged in appeal by one of the two vendees/defendants---Appellate Court partly dismissed the suit qua appealing defendant for non-compliance of requirement of Talb-i-Ishhad as its notice was issued in the name of non-appealing defendant, who did receive it---High Court dismissed revision petition tiled by plaintiff and accepted that of the appealing defendant and by applying the provisions of O.XLI, R.4 read with R.33, C.P.C., dismissed the suit as a .whole--Validity---Right of pre-emption being a right of substitution, decree against non-appealing defendant could not be interfered with in revision petition tiled by co-vendee against whom suit had been dismissed---Record did not show that non-appealing defendant in revision petition filed by co-vendee had made any oral or written request that decree passed by Appellate Court against him be set aside as he did not want to allow the plaintiff to get 1/2 share of land---Inaction of non-appealing defendant to challenge the decree in appeal would constitute an act of his agreement to give 1/2 share of land to plaintiff---High Court had not exercised its discretion under O.LXI, -R.4; C.P.C. properly and judiciously---Findings of Courts below about receipt of notice by non-appealing defendant and its having been addressed to him, were based on evidence on record---While holding that decree had been rightly granted against non-appealing defendant, Supreme Court accepted the appeals and set aside the judgments of High Court passed in both the revision petitions, and restored those of the Appellate Court.

---- Right of pre-emption is a right of substitution.

(d) Pre-emption---

---- Recognition of pre-emptor's right ---Vendee even without any suit could concede to the pre-emptor his right out of Court and transfer the property to him in recognition of that right.

Syed Safdar Hussain, Advocate-on-Record for Petitioner.

Fateh Muhammad Khan, Advocate-on-Record for Respondents.

Date of hearing: 30th October, 2001.

PLD 2002 SUPREME COURT 267 #

P L D 2002 Supreme Court 267

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

Mst. HAMEED MAI ‑‑‑Appellant

Versus

IRSHAD HUSSAIN ‑‑‑Respondent

Civil Appeal No.797 of 2000, decided on 31st October,‑2001.

(On appeal from the judgment dated 28‑4‑2000 of Lahore High Court passed in W.P. No.3659 of 1999).

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

‑‑‑‑Ss. 12 & 25‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Grandmother agreed to hand over custody of minor to father on her attaining age of seven years‑‑‑Father thereafter contracted second marriage, who had an issue from second wife‑‑‑Father's application for custody of minor by implementing such compromise was accepted by Guardian Judge, which order was upheld by Appellate Court and High Court‑‑‑Supreme Court granted leave to appeal to consider, whether in such circumstances, irrespective of settlement between the parties, Guardian Judge was not bound under law to decide question of custody of minor keeping in view her welfare.

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

‑‑‑‑Ss. 12 & 25‑‑‑Constitution of Pakistan (1973), Arts.185(3) & 199‑‑Constitutional petition before High Court‑‑‑Interim custody of minor‑‑Mother of minor died at the time of her (minor's) birth‑‑‑Grandmother of the minor girl obtained her custody from her father through habeas petition‑‑During proceedings before Guardian Judge, matter was compromised and as per term of settlement, custody of minor had to be handed over to father on her attaining age of seven years‑‑‑Father, later on contracted second marriage and had an issue from second wife‑‑‑Deceased mother of minor was a serving lady‑‑‑Share of minor in the amount left by her mother was deposited by father in his own account, which amount was recovered from him through decree of Court after issuing his warrant of arrest‑‑‑During pendency of another suit for his appointment as guardian of person and property of minor, father made application for implementation of such compromise seeking custody of minor‑‑‑Guardian Judge allowed such application and directed grandmother to hand over custody of minor to her father‑‑Grandmother remained unsuccessful before Appellate Court and High Court‑‑‑Held, paramount consideration in such‑like cases was welfare of minor‑‑‑Initially parties had settled the dispute through compromise, but later on due to material change in circumstances, question of welfare of minor had again cropped up in a more serious manner than before‑‑‑Since birth minor had remained, with maternal grandmother and suddenly to ask her to live in different atmosphere would be, if not impossible, at least very difficult for her‑‑--Supreme Court allowed the appeal, set aside impugned order and permitted the minor to remain with grandmother till petition pending before Guardian Judge was finally decided on merits after recording evidence of the parties.

‑‑‑‑S. 25‑‑‑Welfare of minor‑‑‑Private compromise‑‑‑Custody of minor in all cases cannot be effectively settled by private compromise‑‑‑Court's powers with regard to custody of minor are in the nature of parental jurisdiction, and it must act in a way a wise parent would do‑‑‑Expression "welfare'" would be construed in a way so as to include in its compass all the dominant factors essential for determining the actual welfare of the minor‑‑‑Technicalities of law are not adhered to in such type of cases.

Muhammad Hussain (husband of Mst. Hameed Mai) for Appellant. M. Bilal: Amicus curiae.

Ch. Muhammad Akram, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 31st October, 2001.

PLD 2002 SUPREME COURT 270 #

P I. D 2002 Supreme Court 270

Present: Iftikhar Muhammad Chaudhry, Javed Iqbal

and Tanvir Ahmed Khan, JJ

MUBASHER AHMAD‑‑‑Petitioner

Versus

Mian TAHIR RAZA and others‑‑‑Respondents

Civil Petition No. 1602 of 2001, decided on 22nd November, 2001.

(On appeal from judgment/order dated 27‑3‑2001 passed by Lahore High Court, Lahore, in C.M. No.92‑C/99 in C.R. No.2427/95).

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

‑‑‑‑S. 12(2) read with S.115‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Power of attorney in favour of respondent allegedly executed by petitioner was held by Trial Court to be forged‑‑‑Appeal and revision filed by respondent were dismissed‑‑‑High Court on respondent's application under S.12(2), C.P.C. recalled its order of dismissal of revision petition on the ground that petitioner was minor when power of attorney was allegedly executed, therefore, matter needed thorough probe, and set aside the judgments and decrees of lower Courts and remanded the case to Trial Court for fresh decision‑‑‑Contention of petitioner was that Trial Court, Appellate and Revisional Courts did not agree with his plea that power of attorney was allegedly executed during his minority, but held it to be a fraudulent document, thus, plea of challenging the judgment of High Court within the scope of S.12(2), C.P.C. was not available to respondent, because such plea could have been raised only by petitioner/plaintiff, but not by respondent; that High Court had enlarged the scope of S.12(2), C.P.C., by opening door for every body to submit application to challenge the validity of judgment/decree on plea of fraud, misrepresentation etc. and that High Court had failed to consider that when decree could not be set aside on plea of fraud by holding summary proceedings, without recording evidence and considering material available on record, then there was no occasion to allow application under S. 12(2), C.P.C.‑‑‑Supreme Court granted leave to appeal to examine such contentions of the petitioner.

Gulzarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd November, 2001.

PLD 2002 SUPREME COURT 273 #

P L D 2002 Supreme Court 273

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

MUKHTAR AHMED ‑‑‑Appellant

Versus

ANSA NAHEED and 2 others‑‑‑Respondents

Civil Appeal No.583 of 1995, decided on 29th October, 2001.

(On appeal from the judgment dated 27‑10‑1993 of Lahore High Court in Writ Petition No. 1660 of 1992).

(a) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑--

‑‑‑‑S. 5 & Sched.‑‑‑Dissolution of Muslim Marriages Act (VIII of 1939), S.2‑‑‑Where marriage was dissolved on various grounds including Khula', then wife would be entitled to recover dower and dowry, but where it was dissolved solely on the ground of Khula' then her offer made for getting marriage dissolved on Khula' would be examined‑‑‑Wife tiled suit for dissolution of marriage on various grounds viz. cruelty, non‑payment of maintenance, non‑performance of marital obligations, impotency of husband and Khula'‑‑‑Wife also filed suit for recovery of dowry amount‑‑‑Family Court decreed the suit for dissolution of marriage on all such grounds holding that wife in lieu of Khula' would not be entitled to claim dower, dowry and maintenance ‑‑‑Husband, in view of such findings, filed in latter suit an application for rejection of the plaint‑‑‑Wife filed application for clarification of judgment and decree, but it was dismissed by Family Court and its order was maintained by the Appellate Court‑‑‑High Court accepted Constitutional petition tiled by wife and set aside the conditions regarding relinquishment of dower, dowry and maintenance‑‑‑Contention of husband was that High Court in exercise of Constitutional jurisdiction could not change judgment and decree passed by Family Court, especially when the wife had not challenged same and her petition for clarification had been dismissed by Courts below‑‑‑Held': wife in her deposition recorded before Family Court had forgiven only her claim for remaining amount of dower in lieu of Khula' and had not given up her claim of dowry‑‑‑Marriage was dissolved on various 'rounds including Khula'‑‑‑Where marriage was dissolved on other grounds also, then wife would be entitled to recover amount of dower and dowry, but where it was dissolved solely on ground of Khula', then situation would be different and it would be examined keeping in view the offer she had made for getting marriage dissolved on Khula'‑‑Findings of High Court were correct and not open to any exception‑‑Supreme Court dismissed the appeal of husband while making it clear that suit tiled by wife for recovery of dowry amount would be decided on its own merits.

Farida Khanum v. Maqbul Ilahi and 2 others 1991 MLD 1531 ref.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5 & Sched.‑‑‑Dissolution of Muslim Marriages Act (VIII of 1939), S.2‑‑‑Suit for dissolution of marriage on other grounds and Khula'‑‑Distinction‑‑‑Woman married under Muslim Law is entitled to obtain a decree for dissolution of her marriage on anyone or more of the grounds available under the law‑‑‑Each ground is separate and enough for dissolution‑‑‑If marriage is dissolved on other grounds also, it means that result would have been the same irrespective of the fact whether plea of Khula' was raised or not‑‑‑Legal rights cannot be curtailed by implication.

Habib‑ur‑Rehman v. The Additional District Judge, Lahore and others 1984 SCMR 1432 ref.

‑Legal rights cannot be curtailed by implication.

Ch. Mehdi Khan Chouhan, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Appellant.

Ras. Tariq Ch., Advocate Supreme Court and Hamid Aslam Qureshi, Advocate‑on‑Record for Respondents.

Date of hearing: 29th October, 2001.

PLD 2002 SUPREME COURT 277 #

P L D 2002 Supreme Court 277

Present: Munir A. Sheikh, Rana Bhagwandas

and Abdul Hameed Dogar, JJ

COLLECTOR LAND ACQUISITION, ABBOTTABAD and 2 others---Appellants

Versus

LAL KHAN and 11 others---Respondents

Civil Appeal No. 1362 of 1997, decided on 20th November, 2001.

(On appeal from the judgment of Peshawar High Court, Abbottabad Bench, dated 3-7-1997 passed in R.F.A. 2/97).

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

-----Ss. 96, 114 & O. XLVII, Rr. 1, 7---Appeal against judgment passed in review modifying original judgment and decree---Maintainability---Where Court after grant of review considered the entire case afresh separately and passed fresh judgment, then it would be a case of extinction of original judgment and bringing into existence a new one, which could be appealed against on merits, irrespective of the fact whether the order granting review was challenged or not.

Govinda v. Rangammal AIR 1929 Mad. 261 rel.

Bhawani Prasad v. Laxmibai AIR 1919 Nag. 78 ref.

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

----Ss. 23, 34 & 54---Civil Procedure Code (V of 1908), Ss. 96, 114 & O.XLVII, Rr. 1, 7---Limitation Act (IX of 1908), Art.156---Appeal--Limitation---Judgment and decree dated 6-12-1995 were silent as regards payment of interest---Court on review application filed by respondents modified judgment and decree on 27-10-1996 and awarded interest also---Appellants in appeal challenged order passed in review dated 27-10-1996 and also quantum of compensation determined under judgment dated 6-12-1995-Appeal was dismissed as being barred by time---Contention of the appellants was that after grant of review, original judgment ceased to have independent existence and fresh judgment and decree came into existence, thus, period of limitation in filing appeal had to start from 27-10-1996 when on the basis of review modified judgment was passed and not from 6-12-1995 when original judgment was passed---Validity---Original judgment and decree dated 6-12-1995 determining quantum of compensation having not been challenged by appellants, had become final---Order granting review was limited to grant of interest and to such extent original judgment and decree had been modified---Appeal against modified part of original judgment and decree was maintainable and not against the other.

Govinda v. Rangammal AIR 1929 Mad. 261 rel.

Bhawani Prasad v. Laxmibai AIR 1919 Nag. 78 ref.

Imtiaz Ali Khan, Additional Advocate-General, N.-W.F.P. and M.A. Qayyum Mazhar. Advocate-on-Record for Appellants.

Respondents: Ex pane.

Date of hearing: 20th November, 2001.

PLD 2002 SUPREME COURT 280 #

P L D 2002 Supreme Court 280

Present: Muhammad Bashir Jehangiri and Nazim Hussain Siddiqui, JJ

MUHAMMAD SALEEM SHAH and 80 others---Appellants

Versus

AZIZ-UR-REHMAN SHAH and 43 others---Respondents

Civil Appeal No. 1250 of 1995, decided on 22nd November, 2001.

(On appeal from the judgment dated 30-4-1995 of the Peshawar High Court, Circuit Bench, Abbottabad passed in Civil Revision No.414 of 1991).

Specific Relief Act (I of 1.877)-----

----S. 54---West Pakistan Land Revenue Act (XVII of 1967), S.39--Constitution of Pakistan (1973), Art. 185(3)---Suit for permanent injunction-Disputed land forming part of village Shamilat was handed over to father of defendant for enjoying its usufruct in lieu of services as "Imam" of village mosque without payment of any rent, who later on abandoned Imamat and respondent (his son) occupied the land and relinquished possessory rights in favour of the other defendants by deed of relinquishment---Plaintiffs filed suit for restraining defendants from taking possession of land or raising construction thereon, which was decreed by Trial Court---Appellate Court dismissed defendants' appeal, but High Court accepted their revision petition holding that they being in possession of land as co-sharers could not be dispossessed otherwise than in due course of law---Validity---Defendant had stepped into shoes of his father as "Imam" of village mosque, thus, had notionally come to possess land in lieu of services to be rendered by him--Defendant could enjoy usufruct thereof till performance of such services, but could not transfer possessory right to the other defendants as entries of column of Lagan and those of column of cultivation were inter se irreconcilable---Result of such irreconcilable entries would be that none of the parties could take possession of disputed land by virtue of their status as co-sharers in village Shamliat---According to long-standing entries in Revenue Record, land had to be enjoyed by Imam of village mosque, thus, neither proprietary body of village could take possession thereof nor Imam could relinquish possession thereof in favour of anyone else---Proprietary body of village would notionally remain owner of such land and they could jointly evolve any formula to regulate its status---Defendants' plea that they had come to possess disputed land in a lawful manner as co-sharer in village Shamilat, had not been raised in written statements, but the same was an improvement in the case in witness-box---Supreme Court accepted the appeal, set aside impugned judgment and restored that of Appellate Court.

Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and another PLD 1974 SC 193; Tehmas and 16 others v. Dawar Khan and 7 others PLD 1990 SC 629; Sajawal Shah and another v. Syed Rahim Shah and others PLD 1975 SC 325; Shamsur Rehman v. Hukmat Khan and others PLD 1967 Pesh. 304; Shad Muhammad v. Khan Poor PLD 1986 SC 91 and Said Amir and another v. Ashraf Khan and others PLD 1986 SC 113 ref.

Abdur Rashid Awan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Ibrahim Satti, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents Nos. 1 and 2.

Date of hearing: 22nd November, 2001.

PLD 2002 SUPREME COURT 287 #

P L D 2002 Supreme Court 287

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

MUHAMMAD NAWAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.34-Q of 2001, decided on 7th November 2001

(On appeal from the judgment of the High Court of Balochistan, Quetta, dated 30th January, 2001, passed in Criminal Revision No-120 of 2000).

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

---S. 223---Constitution of Pakistan (1973), Art.185(3)---Condonation of delay---Evidence available on record did not show that the accused was either custodian of the lock-up or the lock-up was opened at his direction and the escaped prisoner was taken to latrine by his order without being handcuffed---Accused no doubt was on duty, but the lock-up was not under his direct supervision or command---Escaped prisoner was taken out from the lock-up at the direction of Shab-Moharrir in the presence of Duty Officer and prosecution had failed to prove that it was exclusively the negligence of the accused or he had extended any facility in the said escape---Delay of 145 days in tiling the petition for leave to appeal was condoned by the Supreme Court on having been satisfied that the conviction of accused was illegal and also because that Supreme Court generally condoned delay in criminal cases--- Petition for leave to appeal was converted into appeal in circumstances which was accepted and the accused was acquitted accordingly.

Muhammad Yaqoob v. The State PLD 2001 SC 378; Kedarnath v. State AIR 1965 All. 233; Nemichand v. Commissioner, Nagpur Division, Nagpur ILR 1947 Nag. 256; 228 IC 525; 1947 NU 281; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Sadiq v. The State PLD 1967 SC 356 and Muhammad Bakhsh v. State 1985 SCMR 72 ref.

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

----S. 223---"Escape from confinement or custody negligently suffered by public servant"---Connotation---When negligence is a part of the definition of .the penal section it 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.

Petitioner in person.

Akhtar Zamar, Additional Advocate-General, Balochistan for the State

Date of hearing: 7th November, 2001

PLD 2002 SUPREME COURT 293 #

P L D 2002 Supreme Court 293

Present: Iftikhar Muhammad Chaudhry, and Hamid Ali Mirza, JJ

MUHAMMAD RASHID AHMED ---Appellant

Versus

MUHAMMAD SIDDIQUE---Respondent

Civil Appeals Nos.925 and 926 of 2000, decided on 3rd October, 2001.

(On appeal from the judgment/order dated 19-4-2000 passed by Lahore High Court, Lahore in C.Rs.Nos.2098 and 2099 of 1997).

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

----S. 115---Constitution of Pakistan (1973), Art.185(3)---Supreme Court granted leave to appeal to consider, whether High Court was justified to interfere in exercise of revisional jurisdiction under S.115, C.P.C. with concurrent findings of facts and reverse such findings by ignoring the material piece of evidence.

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

----S. 115---Concurrent finding of facts---Scope of revisional jurisdiction--Such findings could be interfered with by High Court in exercise of revisional jurisdiction, where it was proved that Appellate Court either had no jurisdiction to decide the matter or had declined to exercise jurisdiction vested in it or acted illegally or with material irregularity.

2000 SCMR 346; 1997 SCMR 1139; Sheikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohi-ud-Din 1996 SCMR 813; Muhammad Bakhsh v. Muhammad Ali 1984 SCMR 504; PLD 1970 SC 288; PLD 1983 SC 53; PLD 1988 Lah. 632 and 1988 CLC 1152 ref. .

----Art. 204---Contempt of Court Act (XLIV of 1976), Ss. 3 & 4---Supreme Court Rules. 1980, O. XXVII, R.1---Contempt of Court---Meddling of District and Sessions Judge in judicial matters---Violation of status quo order granted by Supreme Court---Appellant alleged that respondent and 7 others forcibly took over possession of suit property from, him with the assistance and connivance of District and Sessions Judge, whose wife with his collusion had already got prepared a rule of Court respecting suit property and with regard to which an application under S.12(2), C.P.C. was pending in the lower Court---Supreme Court summoned the record of application under S.12(2), C.P.C., and a perusal whereof prima facie, supported the contentions of appellant---Meddling of District and Sessions Judge in judicial matter, in such circumstances, and the possibility of his making efforts to get the case decided in favour of respondent because allegedly suit property was purchased from respondent in the name of his wife, could not be ruled out--Supreme Court directed to issue notice to respondent and others to appear in person and explain as to why proceedings for contempt of Court under Art.204 of the Constitution read with Ss.3/4 of Contempt of Court Act, 1976 be not initiated against them---Supreme Court also directed to issue separate notice to the District and Sessions Judge to explain his position in respect of allegations imputed against him in contempt application.

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

----Ss. 12 & 39---Qanun-e-Shahadat (10 of 1984), - Arts.75 & 76--Constitution of Pakistan (1973), Art. 185---Suit for specific performance of agreement to sell---Respondent's plea was that parties had agreed to execute lease agreement, but appellant in connivance with petition-writer and marginal witnesses got it executed as agreement to sell ---Respondent also filed suit for cancellation of agreement to sell being based on fraud and ineffective on his rights---Both the suits were consolidated---Trial Court decreed appellant's suit and dismissed respondent's suit holding that appellant had proved by examining one marginal witness and scribe of agreement that it was executed as agreement to sell---Respondent's appeal was dismissed by Appellate Court, but his revision petition was accepted by High Court---Validity---Respondent had neither denied execution of agreement nor appellant's possession over suit-land nor had claimed relief for getting its possession from appellant in suit for cancellation of agreement--Neither any jurisdictional defect nor non-reading and misreading of evidence could be pointed out in judgments/decrees passed by Trial Court and Appellate Court---High Court had interfered with such concurrent findings without indicating misreading or non-reading of evidence or the same being in any way in violation of law---High Court had granted relief to respondent on the ground not raised either in written statement or during trial---Supreme Court accepted appeals with costs and set aside judgment of High Court. as a result of which judgments/decrees of Appellate Court were restored.

(e) Witness---

---- Marginal witness---Testimony of such witness could not be disbelieved merely for his failure to explain that in what connection he had visited petition-writer, and due to this reason, version of petition-writer marking presence of parties before him for execution of disputed document could not be held inadmissible.

Mirza Masoodur Rehman, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record (absent) for Appellant.

Syed Samar Hussain, Advocate Supreme Court and Walayat Umar Ch., Advocate-on-Record (absent) for Respondent.

Date of hearing: 27th September, 2001.

PLD 2002 SUPREME COURT 303 #

P L D 2002 Supreme Court 303

Present: Mian Muhammad Ajmal and Abdul Hameed Dogar, JJ

MUHAMMAD SABIR KHAN

and 13 others---Petitioners

Versus

RAHIM BAKHSH and 16 others---Respondents

Civil Petitions for Leave to Appeal Nos. 1542 and 1543 of 1999, decided on 13th July, 2001.

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 11-6-1999 passed in Civil Revisions Nos.226 and 227 of 1991).

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

----S. 41---Bona fide purchaser---Legal protection of a bona fide purchaser could not be claimed under an invalid transaction.

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

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2--- Temporary and permanent injunction---Claim for compensation---Petitioners (purchasers), having raised construction on suit land during continuance of injunction order and decree, would not be entitled to any compensation thereof---Such sales were invalid, thus, all superstructure made thereon would- also be without any foundation, which had to fall to the ground.

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXI, R.32(1)(2)(3) & O.XXXIX, Rr.l, 2---Decree for declaration and perpetual injunction--Sales made by defendant in excess of his share in violation of prohibitory order passed during pendency of suit and then after passing of decree permanently restraining him from alienating or interfering with shares of other co-sharers-----Petitioners (purchasers) contended that such decree being unexecutable, they could not be dispossessed---Validity---Defendant had flagrantly flouted the temporary as well as perpetual injunction by alienating suit land and interfering with shares of other co-sharers---Decree was not merely declaratory, but was also for permanent injunction, which could be executed in terms of cls. (1) to (3) of R.32 of O.XXI, C.P.C.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.151, O.XXI, R.32 & O.XXXIX, Rr. 1, 2---Contempt of Court Act (LXIV of 1976), S.3--Transfer of Property Act (IV of 1882), S.52---Suit for declaration and permanent injunction---Sales, made by defendant in violation of prohibitory order passed during pendency of suit and then after passing of decree permanently restraining him from alienating shares of other co-sharers--Contention of defendant was that violation of injunction order/decree would entail only penal action, but would not adversely affect such sales--Validity---No legal sanctity could be attached to any action done during pendency of lis and against the Court orders---An act entailing punishment under law would be an unlawful act and the same could not said to be valid---All sales made during pendency of its and in violation of Court order/decree were invalid for all intents and purposes, and if the same were allowed to exist, it would amount to sanctioning the illegal acts of violator of Court Order, hence besides initiating proceedings under S.3 of Contempt of Court Act, 1976, Court could take action against such violator under O.XXI, R.32 & O.XXXIX, R.2(3), C.P.C. for disobedience of its order/decree--Court could exercise its powers under S.151 to prevent abuse of its process and corrective measures could be taken against wrong-doers to uphold and maintain the majesty of law.

Bakhtawar v. Amin 1980 SCMR 89 rel.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2--Transfer of Property Act (IV of 1882), S.52---Suit for declaration and permanent injunction---Sales made by defendant in excess of his share in violation of prohibitory order passed during pendency of suit and then after passing of decree permanently restraining him from alienating or interfering with shares of other co-sharers---Validity---No legal sanctity could be attached to any action done during pendency of lis and against the Court orders---Defendant had already sold more than his share, thus, he having no share left in suit-land, had no right to further sell any part thereof belonging to other co-sharers, especially when he had been restrained by Court from doing so-----Alienations so made were bad in law and invalid, firstly as the same had been effected during continuously flouting and .flagrantly disregarding the Court order/decree, and secondly, the same were hit by doctrine of lis pendens---Allowing such sales to exist would amount to sanctioning illegal acts of violator of Court order/decree.

(f) Co-sharer---

----Right to alienate joint land---Extent---Sale made by co-sharer beyond his share in the land would be bad in law and invalid.

M. Sardar Khan, Senior Advocate Supreme Court for Petitioners (in both Petitions)

Sh. Wazir Muhammad, Advocate Supreme Court for Respondents (in both Petitions).

Date of hearing: 13th July, 2001.

PLD 2002 SUPREME COURT 310 #

P L D 2002 Supreme Court 310

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

Messrs JAMES CONSTRUCTION COMPANY (PVT.) LTD, through Executive Director---Appellant

Versus

PROVINCE OF PUNJAB through Secretary

to the Government of Punjab (Communication

and Works) Department, Lahore and 3 others---Respondents

Civil Appeals Nos. 1519 and 1520 of 1999, decided on 29th November, 2001.

(On appeal from the judgment dated 3-5-1999 of Lahore High Court, Lahore, passed in C.R. No. 1915 of 1998).

(a) Stamp Act (II of 1899)-----

----Ss. 35, 36 & Art. 12---Registration Act (XVI of 1908), Ss. 14 & 49--Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by the Supreme Court to consider as to whether award made with intervention of the Court would be liable to stamp duty in. terms of Art. 12 of Stamp Act, 1899; that whether award admitted in evidence could be challenged under S.36 of Stamp Act, 1899, on the allegation of its being deficiently stamped; and that whether as per law laid down in case reported as Mst. Farida Malik and others v. Dr. Khalida Malik and others 1998 SCMR 816 that award coming into existence without intervention of Court was compulsorily registrable under S.14 of Registration Act, 1908, otherwise it would be an invalid document without creating any rights notwithstanding amendment in S.49 of Registration Act, 1908.

Mst. Farida Malik and others v. Dr. Khalida Malik and others 1998 SCMR 816 ref.

(b) Arbitration Act (X of 1940)-----

----S. 20---Application of S.20, Arbitration Act, 1940---Section 20 of the Act is attracted, when arbitration agreement was already entered into before filing of suit with respect to the subject-matter of agreement relating to which differences had arisen between the parties to which the agreement was applicable.

----S. 20---Powers of Court---Where parties do not agree, the Court has power to appoint another arbitrator.

(d) Arbitration Act (X of 1940)---

----S. 21---Parties to the suit, before the passing of decree, could make an agreement regarding the settlement of their dispute by virtue of S.21 of the Arbitration Act, 1940.

(e) Arbitration Act (X of 1940)---

----S. 17---Award cannot be legally enforced, until it is made rule of the Court---Award not made rule of the Court cannot be taken as legal award.

(f) Stamp Act (II of 1899)---

----Preamble---Object of the Stamp Act, 1899---Prime object of the Act is to realise and safeguard the public revenue.

(g) Stamp Act (II of 1899)---

----S. 35---Instrument not duly stamped---Not admissible in evidence for any purpose---Such instrument being not invalid, could be admissible in evidence subject to conditions imposed by S.35 of the Stamp Act, 1899 i.e. on payment of deficient duty and penalty.

(h) Stamp Act (II of 1899)--

----Ss. 36 & 61---Expression "admission in evidence" as used in S.36 of the Stamp Act, 1899 would mean admission of document after judicial consideration of the circumstances relating to its admissibility---instrument once admitted in evidence could not later on be challenged on the ground of it's being insufficiently stamped, except as provided in S. 61 of the Act.

(i) Stamp Act (II of 1899)---

----Ss. 36 & 61---Purpose, scope and distinction between Ss.36 & 61, Stamp Act, 1899---Section 61 of the Act safeguards the public revenue by providing further mechanism for its recovery in the way that if Appellate Court is of the opinion that such instrument should not have been admitted in evidence without payment of duty and penalty or without the payment of higher duty and penalty, then it can determine the amount of duty chargeable on such instrument and impound the same---Section 61 of the Act does not curtail the scope of S.36 of the Act, but it only speaks about the steps taken by Legislature for recovering revenue, which escaped notice of Trial Court.

(j) Stamp Act (II of 1899)---

----Art. 12---Arbitration Act (X of 1940), S.20---Award---All awards do not require stamp duty---Stamp duty is to be charged on any decision in writing by an arbitrator or Umpire on a reference made, otherwise than by order of the Court in the course of suit---Expression "otherwise than by an order of the Court" as used in Art. 12 of Stamp Act, 1899, is of extreme importance for determining the nature of award as it curtails the scope of its earlier part of definition of "Award"---In absence of such expression, any decision in writing by an Arbitrator or Umpire would have been subjected to stamp duty---Where proceedings are initiated under S.20 of Arbitration Act, 1940, and parties refer their dispute to arbitration, then entire proceedings from stage of institution of such proceedings till conclusion remain under the control of the Court----Award under such circumstances arises "by an order of the Court in the course of a suit"---Award with intervention of Court is not subject to stamp duty.

(k) Stamp Act (II of 1899)---

----Ss. 20, 35, 36 & Art. 12 [as amended by Punjab Finance Act (VI of 1995)]---Award with intervention of Court---Liability to stamp duty--Reference to arbitrators was made on appellant's application under S.20 of Arbitration Act, 1940---Award filed in the Court was objected to only by respondents, whereas appellant filed its reply to objection petition filed by respondents---Trial Court framed issues and both the parties led their evidence---When case was fixed for arguments, respondents made application for de-exhibiting the award and impounding the same as it was unstamped--Trial Court accepted the application and directed the appellant to pay 10 times stamp duty @ 3 % of the value of subject-matter---High Court dismissed the revision petition filed by appellant---Validity---Proceedings were initiated under S.20 of Arbitration Act, 1940, thus, entire proceedings from stage of its institution till conclusion had remained under the control of the Court---Award under such circumstances had arisen "by an order of the Court in the course of a suit"---Award made through intervention of Court was substantially and materially different from an award made on private reference---Award made with intervention of Court was not subject to stamp duty---Document once admitted in evidence could not later on be challenged on the ground of its being insufficiently stamped---Award in question was not required to be stamped, as such, there was no question of its being impounded nor any penalty could be imposed upon appellant ---Supreme Court accepted appeal, set aside impugned orders of Trial Court and High Court, and directed the Trial Court to take further proceedings in the case according to law.

Darshan Singh v. Messrs Forward India Finance (P.) Ltd., New Delhi and others AIR 1984 Delhi 140 and Mst. Farida Malik and others, v. Dr. Khalida Malik and others 1998 SCMR 816 ref.

(1) Words and phrases---

--------Validity and admissibility of document---Connotation and distinction---Scope of both such expressions is different and hey convey different meanings-- "Validity" relates to correctness, propriety and legality of a document, while "admissibility" determines the issue of bringing the same on record.

(m) Words and phrases---

----"Intervene"---Meanings.

(n) Stamp Act (II of 1899)---

----Art. 12---Arbitration Act (X of 1940), S. 20---Award---Exemption from duty---Legislature in its wisdom has not fixed stamp duty on award made with intervention of Court---Rationale behind not imposing stamp duty oil such award is that arbitrators perform the functions entrusted to them under supervision of the Court---Arbitrators are paid their fee separately, which is paid by contesting parties, who are not obliged to pay stamp duty--Additional liability on parties to pay stamp duty, under such circumstances, would not be justified.

(o) Arbitration Act (X of 1940)---

----S. 20---Nature of proceedings---Application under S.20 of the Arbitration Act is numbered and registered as a suit, although in strict sense, it is not a suit---When such application is instituted then show-cause notice is issued to all the parties to agreement requiring them to explain as to why agreement would not be filed---Where sufficient cause is not shown, then the agreement is ordered to-be filed---Where application is disposed of and the agreement is not ordered to be tiled in Court, then no further action is required, and under such circumstances, there would be no question of award.

Raja Abdul Razzaque, Advocate-on-Record for Appellant.

Ch. Tariq Mahmood Khokhar, Additional Advocate-Geuera1, Punjab and Rao Muhammad Yousaf Khan, Advocate-on-Record for Respondents.

Date of hearing: 21st September, 2001.

PLD 2002 SUPREME COURT 319 #

P L D 2002 Supreme Court 319

Present: Iftikhar Muhammad Chaudhry, Javed Iqbal

and Tanvir Ahmed Khan, JJ

ISLAMIA UNIVERSITY, BAHAWALPUR‑‑‑Petitioner

Versus

MUHAMMAD HAMEED BHATTI and another‑‑‑Respondents

Civil Petitions Nos. 1184 and 1185 of 2001, decided on 29th November, 2001.

(On appeal from the judgment/order dated 22‑2‑2001 passed by Lahore High Court, Bahawalpur Bench in C.R. Nos. 306‑D and 305‑D of 1993).

Islamia University Bahawalpur Act (IV of 1975)‑‑‑--

‑‑‑‑S. 43‑‑‑Islamic University Employees (Pension) Statutes, 1979 ‑‑‑ Islamia University Bahawalpur Officers (Appointment) Statutes, 1977), ESTACODE, page 309, Instruction No.36‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Re‑employment of employee‑‑‑Entitlement to move‑over, pension and other ancillary benefits‑‑‑Leave to. appeal was granted by the Supreme Court to consider, whether re‑employment constituted a bar for grant of pension, move‑over and ancillary benefits in view of relevant provisions as contained in Islamia University Bahawalpur Act, 1975 and Islamic University Employees (Pension) Statutes, 1979; whether the provisions as contained in Islamia University Bahawalpur Act, 1975 and Islamic University Employees (Pension) Statutes, 1979, could be superseded by Instruction No.36 published in ESTACODE at page 309, which provided that a person who had been re‑employed could take full benefits of service and pension; and whether High Court had ignored the relevant provisions of Islamia University Bahawalpur Officers (Appointment) Statutes, 1977, and resultantly the exact nature of service of respondents could not be determined having a substantial bearing to set the controversy at naught.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner (in both Petitions).

Ch. Muhammad Akram, Advocate‑on‑Record for Respondents (in both Petitions).

Date of hearing: 29th November, 2001

PLD 2002 SUPREME COURT 321 #

P L D 2002 Supreme Court 321

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

THE STATE through Force Commander, Anti-Narcotics Force, Quetta ---Petitioner

Versus

ABDUL QAHIR---Respondent

Criminal Petition No.48-Q of 2001, decided on 3rd December, 2001

(On appeal from the judgment/order dated 18-7-2001 passed, by High Court of Balochistan, Quetta in Cr. A. No.298 of 2000).

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

----Ss. 9(c) & S.9(b)---Constitution of Pakistan (1973), Art.185(3)--Supreme Court Rules, 1980, O.XXIII, R.2---Petition for leave to appeal barred by 18 days---Contention of petitioner was that under O.XXIII, R.2 of Supreme Court Rules, 1980, time for filing appeal by. State was 60 days---Supreme Court granted leave to appeal subject to limitation.

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

----Ss. 9(c) & S.9(b)---Constitution of Pakistan (1973), Art..185(3)--Recovery of 2 kilograms of Charas---Trial Court convicted accused and sentenced him to life imprisonment with fine of Rs.10,00,000---High Court reduced such sentence to 4-1/2 years' R.I: with fine of Rs.10,000, as State Counsel had consented for reduction of sentence---Contention of petitioner was that High Court had illegally reduced sentence; notice for entering appearance by petitioner was not issued; State Counsel appearing on behalf of Advocate-General was not authorised by petitioner to represent it; concessional statement was not in accordance with law and High Court might not have considered conceding statement of State Counsel without getting authorisation to appear on behalf of petitioner and also permission to concede for reduction in quantum of sentence---Supreme Court granted leave to appeal to consider the contentions as the prima facie the High Court had not exercised discretion judicially, because if the provisions of S.9(c) were read alongwith S.9(b) of the Control of Narcotic Substances Act, 1997, keeping in view the recovery of 2 Kg. of Charas from possession of accused, he was not liable to sentence to the extent of only 4-1/2 years' imprisonment with fine of Rs.10,000.

---- Counsel representing Federal or Provincial Government or other agencies ---Consessional statement by State Counsel---Effect---Duty of Court---Principles.

In number of cases, particularly in which Federal or Provincial Government or other agencies are parties, the counsel appearing on their behalf invariably make concession in favour of the opponent without realizing damage being caused to the Federal and Provincial Government (as they) have to suffer considerable damage in terms of money and property as well as in criminal cases where criminals, whose convictions are secured after great difficulty on account of prevailing circumstances, where nobody wines forward to make evidence on account of their terror. But at the same time, the Courts, seized with the matter, are equally responsible in accepting such statements, because, it is their duty to ensure that the concession on behalf of the State is being made lawfully and under the legal authority and if Court comes to conclusion that concessional statement is being made to oblige the other side or it is the result of some extraneous consideration or without any legal authority, then the Court is not bound to accept the same.

(d) Criminal trial---

----Sentence---Awarding adequate sentence---Object---Exercise of discretion by Courts---Principles.

Discretion vests in the Courts in awarding adequate sentence, but it is required to be exercised judicially and not otherwise. Because, in absence of such exercise of powers, the object of awarding sentence to an accused against whom guilt has been established successfully by the prosecution, will be frustrated. It is also to be noted that punishment is before all things deterrent, and the chief end of the law of crime is to make the evil-doer an example and a warning to all that are like-minded with him.

Jurisprudence by Salmond, 10th Edn., p. 111 ref.

H. Shakil Ahmed, Advocate Supreme Court and M. Anwar Khan Durrani, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondent.

Date of hearing: 3rd December, 2001.

PLD 2002 SUPREME COURT 326 #

P L D 2002 Supreme Court 326

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Hamid Ali Mirza, JJ

AITCHISON COLLEGE, LAHORE through Principal‑‑‑Appellant

Versus

MUHAMMAD ZUBAIR and another‑‑‑Respondents

Civil Appeals Nos. 1088 to 1093 of 2000, decided on 14th January, 2002.

(On appeal from the judgment/order dated 12‑5‑2000 passed by Lahore High Court, Lahore in W. P. No. 15063 of 1998).

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

‑‑‑Arts. 199(5) & 185(3) Martial Law Order No. 86 (Zone B), dated 22‑5‑1961‑‑‑Constitutional petition under Art. 199 of the Constitution‑‑"Person" as mentioned in Art. 199(5) of the Constitution ‑‑‑M.L.O. No.86 (Zone B). empowered Governor of West Pakistan to dissolve registered society running the affairs of Aitchison College, Lahore and to take the control of the College‑‑‑Governor of tile Province placed the College under the control of Board of Governors by composition of the Board to which Governor of the Province was designated to be its President alongwith six members including G.O.C., Lahore and Provincial Finance and Education Secretaries while the Principal of the College was to act as Secretary of the Body‑‑‑Leave to appeal was granted by the Supreme Court, inter alia, to consider the question as to whether Aitchison College, Lahore enjoyed the status of a "person" within the contemplation of Art.199(5) of the Constitution of Pakistan (1973).

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

‑‑‑‑Art. 199(5)‑‑‑Martial Law Order No. 86. (M.L.A. Zone B), dated 22‑5‑1961‑‑‑Constitution of Pakistan (1962), Art.250‑‑‑Societies Registration Act (XXI of 1860), S.13‑‑‑West Pakistan Government Notification No.SOX16/25‑61 (Edu), dated 11‑11‑1961‑‑‑West Pakistan Government Notification No.SOX‑16/25‑61 (Edu) Vol, dated 22‑1‑1962‑‑‑Statutes of Aitchison College, Lahore promulgated by the Governor of West Pakistan, Paras. III,, IV & V‑‑‑Constitutional petition‑ "Person" as mentioned in Art.199(5) of the Constitution‑‑‑Dissolution of registered Society alongwith its Governing Bodies namely the Council and the Committee of Management running the affairs of Aitchison College, Lahore, by Governor of West Pakistan under MI.O. No.86 (M.L.A. Zone B), dated 22‑5‑1961 which was a provision protected under Art.250, Constitution of Pakistan‑ (1962), and placing the control of the College under the Board of Governor`s‑‑‑Composition of the Board of Governors was such that Governor of West Pakistan was designated to be its President alongwith six members including GOC, Lahore, Provincial Finance Secretary and Education Secretary while Principal of the Aitchison College was directed to act as Secretary to the Board of Governors‑‑‑Said Board of Governors was authorised to do all acts considered fit and expedient by it for the efficient management and control of the college including the framing of Rules and Regulations and Statutes‑‑Order of dissolution of registered Society etc. was not challenged either by the Principal of the College or anyone else having interest in the affairs of the College Society in any manner rather Government of West Pakistan promulgated Statutes of the Aitchison College, Lahore‑‑‑Rules of Business of Government of Punjab were also amended in pursuance whereof Aitchison College, Lahore was reflected to be one of the special institutions and Education Department of Provincial Government made the Aitchison College, Lahore to be one of its attached departments but with the status of a special institution‑‑‑Board of Governors, Aitchison College, Lahore headed by the Governor of the Province as its President alongwith other officers i.e. Secretaries Education, Finance and General Officer Commanding as well. as unofficial Members, therefore, were involved in providing education which was one of the responsibility of the State and by taking over its management and control of the Board, exercised sovereign powers as well as public powers being a statutory functionary of Government who, in order to provide it full legal/Constitutional protection, had brought the same into the folds of its Education Department by amending the Provincial Rules of Business‑‑‑Board of Governors, in circumstances, would be regarded as a "person" performing functions in connection with the affairs of a Province and squarely fell within the definition of a "person" under Art. 199(5) of the Constitution of Pakistan (1973) notwithstanding the fact that Aitchison College was not receiving any financial assistance from the Provincial Government‑‑‑Reasons.

Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCMR. 928; Syeda Sayeeda Bano and another v: Province of East Pakistan and others PLD 1969 Dacca 352 and Sabhajit Tewary v. Union of India and others AIR 1975 SC 1329 distinguished.

Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Muhammad Afzal v. Governor, Lahore Division PLD 1963 SC 401; Azizur‑Rehman Chaudhry v. M. Naseer‑ud‑Din and others PLD 1965 SC 236; Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through Secretary to the Government of Paksitan, Ministry of Housing and Works, Islamabad and others 2000 SCMR 928; Syeda Sayeeda Bano and another v. Province of East Pakistan and others PLD 1969 Dacca 352; 1997 MLD 2261; Sabhajit Tewary v. Union of India and others AIR 1975 SC 1329; PLD 1965 SC 201; PLD 1974 Lah. 49; PLD 1984 Lah. 35; 1991 PLC (C.S.) 484; University of Dacca through Vice‑Chancellor and another v. Zakir Ahmed PLD 1965 SC 90; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Limited and others 1998 CLC 1890 and Ajay Husia v. Khalid Mujib AIR 1981 SC 487 ref.

Kh. Tariq A. Rahim, M. Abbas Mirza, Advocates Supreme Court and M.A. Qureshi, Advocate‑on‑Record (absent) for Appellant (in all Cases).

A.K.Dogar, Senior Advocate Supreme Court and Syed Abul Asim Jafri, Advocate‑on‑Record (absent) for Respondents (in C.A. No.1088 of 2000).

Respondent: Ex parte (in C. As. Nos. 1089 to 1093 of 2000).

Date of hearing: 15th. October, 2001.

PLD 2002 SUPREME COURT 346 #

P L D 2002 Supreme Court 346

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif, Qazi Muhammad Farooq and Mian Muhammad Ajmal, JJ

G.M., NATIONAL BANK OF PAKISTAN and others ‑‑‑Appellants

Versus

ABDUL AZIZ and others‑‑‑Respondents

Civil Appeals Nos.1126 to 1133 of 2001 arid Civil Petitions for Leave to Appeal Nos.745‑L to 755‑L, 805‑L and 812‑L to 840‑L of 2001, decided on 28th September, 2001.

(On appeal from judgment, dated 25‑1‑2001 of the Federal Service Tribunal, Lahore in Appeals Nos.440‑L of 1998, 636‑L, 697‑L, 698‑L, 699‑L, 1079‑L, 1080‑L, 1340‑L, 1707‑L of 1998, 1339‑L, 1340‑L 1341‑L, 1342‑L, 1343‑L,.1344‑L of 1999, 633‑L, 634‑L, 638‑L, 644‑L, 650‑L, 652‑L, 656‑L, 653‑L; 658‑L, 662‑L, 664‑L and 697‑L of 1997).

(a) Service Tribunals Act (LXX of 1973)‑‑‑--

‑‑‑Ss.2‑A, 4 & 6‑‑‑Constitution of Pakistan (1973) Art. 212(3)‑‑‑Insertion of S.2‑A in Service Tribunals Act, 1973‑‑‑Effect‑‑‑Abatement of proceedings‑‑Contention of the petitioner was that S.6 of Service Tribunals Act, 1973, clearly provided that as a consequence of abatement proceedings of any suit or other proceedings in respect of any matter within the jurisdiction of Service Tribunal, the aggrieved party could approach the Service Tribunal without any discrimination as to whether the party was civil servant or the employer, therefore, S.6 of Service Tribunals Act, 1973, would override S.4 of Service Tribunals Act, 1973, and being a special remedy created as a consequence of abatement of .proceedings, the appeal should have been entertained by the Service Tribunal and in those proceedings, the question of legality or otherwise of original order of termination ,of service of the employees could have been gone into and in case the same was found to have been legally passed, the appeal could be accepted and that proceedings before Service Tribunal would be an appeal against the judgment of Labour Court‑‑Plea raised by the petitioner was whether in such a situation, the Service Tribunal was vested with the jurisdiction to go into the question of legality or otherwise of orders of the Labour Court‑‑‑Such question could arise in future in many other cases and was a question of law of public importance relating to jurisdiction of Service Tribunal, leave to appeal was granted by Supreme Court to consider the same.

(b) Service Tribunals Act (LXX of 1973)‑‑‑-

‑‑‑‑Ss. 2‑A & 4‑‑‑Effect of insertion of S.2‑A in the Service Tribunals Act, 1973‑‑‑Scope‑‑‑Appeal‑‑‑Maintainability‑‑‑Jurisdiction of Service Tribunal‑‑,Matter was decided by Labour Court and appeal was pending before Labour Appellate Tribunal‑‑‑By insertion of S.2‑A in the Service Tribunals Act, 1973, the appeal pending before the Labour Appellate Tribunal had abated and the matter was taken to the Service Tribunal‑‑‑Appeal before the Tribunal was dismissed for lack of jurisdiction on the ground that the appeal before the Tribunal would be an appeal against the judgment of the Labour Court‑‑‑Validity‑‑‑Effect of S.2‑A of the Service Tribunals Act, 1973, was that notwithstanding any judgment rendered by the Labour Court, or any other forum, all such matters covered under S.2‑A of the Service Tribunals Act, 1973, stood abated‑‑‑Service Tribunal alone had the exclusive jurisdiction to examine the grievance of such persons‑‑‑Judgment passed by the Service Tribunal was based on erroneous assumption of law that the appeal filed by the appellants was bereft of jurisdiction in the matter‑‑Service Tribunal failed to appreciate the judgment passed by Supreme Court in the case titled Federation of Pakistan v. Muhammad Siddiq, reported as PLD 1981 SC 249, and fell in error by dismissing appeals of the appellants on the ground of maintainability and lack of jurisdiction‑‑‑Judgment passed by the Service Tribunal was set aside and appeals were remanded to the Service Tribunal for decision afresh‑‑‑Petition for leave to appeal was converted into appeal and the same was allowed.

Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249 ref.

‑‑‑‑Ss. 4 & 6‑‑‑Abatement of proceedings‑‑‑Procedure‑‑‑Provisions of S.6 of the Service Tribunals Act, 1973, has overriding effect vis‑a‑vis S.4 of the Service Tribunals Act, 1973, as the former has envisaged a special procedure to be followed after abatement of proceedings.

(d) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 4 & 6‑‑‑Abatement of proceedings pending before other forums‑‑Procedure to be followed by Service Tribunal‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Once such appeals are filed, it is the duty of Service Tribunal to determine afresh as to whether the original order passed by the Authorities against the employees were lawful or otherwise on the basis of the Service Rules or any other Rules applicable to the employees.

Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249 ref.

M. Nawaz Bhatti, Advocate Supreme Court for Appellant (in all Appeals).

M. Munir Peracha, Advocate Supreme Court for Respondents (in C. A. No. 1126 of 2001).

Sardar Liaquat Ali, Advocate Supreme Court for Respondents (in C. As. Nos. 1127, 1129, 1131 an 1132 of 2001).

M. Aslam Uns, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Respondent (in C.As. Nos. 1128, 1130 and 1133 of 2001).

Mian Abdur Rashid, Advocate Supreme Court for Petitioner (in C.Ps. Nos.745 to 755‑L of 2001).

Mian Muhammad Saleem, Advocate Supreme Court for Petitioner (in C. P. No. 805‑L of 2001).

Malik Sher Bahadur, Advocate Supreme Court for Respondent (in C.P. No.805‑L of 2001).

Javaid Altaf, Advocate Supreme Court and Sh. Salahuddin, Advocate‑on‑Record for Petitioners (in C.Ps. Nos.812‑L to 840‑L of 2001) .

M. Rafique Rajwana, Advocate Supreme Court for Respondent (in C. P. No. 812‑L of 2001).

Date of hearing: 26th September, 2001.

PLD 2002 SUPREME COURT 353 #

P L D 2002 Supreme Court 353

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

Messrs BILZ (PVT.) LTD. ‑‑‑Appellant

Versus

DEPUTY COMMISSIONER OF INCOME‑TAX, MULTAN and another‑‑‑Respondents

Civil Petitions Nos.2789‑L to 2791‑L of 2001, decided on 25th September, 2001

(On appeal from the judgment/order, dated 23‑4‑2001 passed by Lahore High Court, Lahore in I. T. As. Nos. 18 to 20 of 2000).

(a) Income Tax Ordinance (XXXI of 1979)‑‑‑-

‑‑‑S. 50(4A)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Deduction of. tax at source ‑‑‑Assessee in default‑‑‑Show‑cause notice for recovery of advance income‑tax not deducted at source‑‑Failure to identify the names of the parties in the notice to whom supplies were made ‑‑‑Assessee made ten payments during the year 1995‑96 for which income was not deducted at source‑‑‑Amount of the payments was mentioned in the notice but the column of withheld tax indicated that the tax was not deducted and no reason in that behalf had been offered by the assessee‑‑‑Despite availing sufficient opportunities before the income‑tax Authorities, no details were furnished for not deducting the tax‑‑‑Effect‑‑‑Where the assessee had notice/knowledge that tax had to be deducted from the categories of the parties mentioned in S.50(4A) of the Income Tax Ordinance, 1979, and assessee itself had failed to fulfil its obligation, the assessee was considered to be "assessee in default" for not deducting the tax from the parties to whom the supplies were made by it‑‑‑Assessing Officer was not obliged to identify the names of the parties to whom the supplies were made because the record was maintained by the supplier, i.e. the assessee and it was the duty of the assessee to maintain the record and show as to why deductions were not made from the parties at the time of making supplies to them ‑‑‑Assessee who failed to deduct the tax in terms of S.50(4A) of the Income Tax Ordinance, 1979, was rightly declared to be an "assessee in default" and cognizance of the matter was rightly taken by the Income‑tax Department within the meaning of S.52 read with S.86 of the Income Tax Ordinance, 1979‑‑‑Leave to appeal was refused.

(b) Interpretation of statutes‑------

‑‑‑‑ Fiscal statute‑‑‑Interpretation‑‑‑Fiscal statute has to be construed in its true perspective and in respect of payment of tax, if it is found due against a party, then such statute cannot be interpreted liberally in order to make out a case in favour of an assessee who has failed to pay the tax.

Iqbal Naeem Pasha, Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record for Appellant (in all Cases).

Nemo for Respondents.

Date of hearing: 25th September, 2001

PLD 2002 SUPREME COURT 359 #

P L D 2002 Supreme Court 359

Present: Sh. Riaz Ahmed, Qazi Muhammad Farooq and Javed Iqbal, JJ

FEDERATION OF PAKISTAN‑‑Petitioner

Versus

Syed MUMTAZ AHMED BURNEY and another‑‑‑Respondents

Civil Petition for Leave to Appeal No. 1161 of 1999, decided on 21st June, 2001.

(On appeal from the judgment dated 10.6‑1999 of the Federal Service Tribunal in Appeal No. 1613(K)/1998).

(a) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Govertunent Servants (Efficiency and Discipline). Rules, 1973, R.4(1)(b)(ii)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Compulsory retirement‑‑‑Reinstatement in service‑‑‑Scrutiny of entire record by Service Tribunal‑‑‑Civil servant was compulsorily retired from service as a result of departmental inquiry‑‑‑Charge against the civil servant was that he released on bail a criminal involved in case under S.17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979‑‑‑Evidence on record showed that the criminal was not under the investigation with the civil servant, rather the investigation was carried on by some other official who was Subordinate to the present civil servant Investigating Officer was not penalized but major punishment of compulsory retirement was imposed on the civil servant‑‑‑Service Tribunal, after indepth scrutiny of entire record including the charge‑sheet, statements of allegations, show‑cause notice and inquiry report, reached the conclusion that the allegations as levelled against the civil servant could not be proved‑‑‑Appeal against the order passed by the Authorities was accepted by the Service Tribunal and the civil servant was reinstated in service‑‑‑Validity‑‑‑Findings of Service Tribunal were unexceptionable and did not warrant any interference‑‑‑Leave to appeal could only be granted by Supreme Court if the case involved a substantial point of lave and was of public importance‑‑‑Leave to appeal was refused.

Muhammad Iqbal v. Secretary to Government of Punjab 1986 SCMR 1; Karamat Hussain v. Province of the Punjab 1982 SCMR 897; Miss Razia, Sultana v. Government of Punjab 1981 SCMR 715; M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Irtiqa Rasool Hashmi v. WAPDA 1980 SCMR 722; Dilbar Hussain v. Province of Punjab 1980 SCMR 148; Yousaf Hussain Siddiqui v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268; Muhammad Azhar Khan v The Service Tribunal, Islamabad 1976 SCMR 262 and M.A. Majid v. Government of Pakistan 1976 SCMR 311 ref.

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

‑‑‑‑Art. 12(3)‑‑‑Re‑appraisal of evidence‑‑‑Jurisdiction of Supreme Court‑‑Concurrent findings of fact by Departmental Authorities and Service Tribunal‑‑‑Effect‑‑‑Supreme Court does not ordinarily interfere with such concurrent finding of fact‑‑‑Where Service Tribunal had based its decision on report of Inquiry Officer after considering defence of the civil servant at length, such case was not fit to be interfered with by the Supreme Court in exercise of jurisdiction under Art.212(3) of the Constitution‑‑‑Re‑appraisal of evidence cannot be made in every case without sufficient justification.

Muhammad Binyamin v. WAPDA 1991 SCMR 382; Faiz Ahmad v, Deputy Postmaster General, Lahore 1991 SCMR 368; Muhammad Munir Ahmad v: WAPDA 1990 SCMR 907; Munir Ahmed v. Punjab Service Tribunal 1990 SCMR 1005; Barkat Ali v. Punjab Service Tribunal 1990 SCMR 1469; Muhammad Jaffar Toor v. Superintending Engineer, Headquarters, Irrigation, Sargodha 1989 SCMR 1740; Munawar Tahir Hussain v. Government of the Punjab 1990 SCMR 1470 and Najib Ullah v. Assistant Commissioner/Collector 1989 SCMR 679 ref.

Muhammad Nawaz Bhatti, Deputy Attorney‑General and Ch Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearings 21st June. 2001.

PLD 2002 SUPREME COURT 371 #

P L D 2002 Supreme Court 371

Present: Muhammad Bashir Jehangiri, Ch. Muhammad Arif and Rana Bhagwandas, JJ

Mst. NAHEED RASHEED and 68 others‑‑‑Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Education, Government of Pakistan, Islamabd and another‑‑‑Respondents

Civil Petition No.754 of 2000, decided on 7th September, 2001.

(On appeal from judgment, dated 2‑3‑2000 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No. 1062 of 1999).

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

‑‑‑‑Art. 185(3)‑‑‑Petition for leave to appeal‑‑‑New plea‑‑‑Where the plea raised in the petition was neither made subject‑matter of any proceedings by the petitioners nor the petitioners availed of the favourable observations made by the High Court‑‑‑Supreme Court declined to allow the petitioners to raise such plea.

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

‑‑‑‑Art. 185(3)‑‑‑Petition for leave to appeal‑‑‑Past and closed transaction‑‑Failure to bring mala fides of the officials before appropriate forum at the relevant time‑‑‑Effect‑‑‑Petitioners referred to the alleged mala fides on the part of the then official responsible for carrying into effect the process of law without any fear or favour but were not brought by the petitioners before the relevant/appropriate forum at that juncture‑‑‑Validity‑‑‑Supreme Court declined to upset that which was made the subject‑matter of appropriate proceedings by the aggrieved persons/individuals .in the past.

‑‑‑‑Art.185(3)‑‑‑Appointment to Government Department‑‑‑Allegation of discrimination‑‑‑Grievance of petitioners was that the Government instead of regularising their services for the post advertised in newspapers appointed fresh candidates for the posts‑‑Such act of the Government was assailed by the petitioners before High Court in Constitutional petition which was dismissed‑‑‑Petitioners contended that they were discriminated by the Government in making the appointments as their services would have been regularized much before the issuance of advertisement in newspapers‑‑Validity‑‑‑Government with a view to put an end to the uncertain conditions of service of a number of employees in the Department took the following steps viz. advertisement was issued; cases of all concerned directed to be processed; favourable consideration of cases of employees who had crossed the upper age limit of 25 years and petitioners were allowed a chance to compete with others on the basis of their appointment in the Department during the period under consideration‑‑‑Petitioners were themselves to be blamed for the predicament in which they found themselves, thus they were not discriminated‑‑‑Leave to appeal was refused.

Sahibzada Ahmad Raza Khan Qasuri, Advocate Supreme Court and Ch. Karam Ellahi Bhatti, Advocate‑on‑Record (absent) for Petitioners.

M. Nawaz Bhatti, D.A.‑G., Salahuddin Khan, D.A.‑G. with Ch. Akhtar Ali, Advocate‑on‑Record for Respondents.

Dates of hearing: 13th and 14th June, 2001.

PLD 2002 SUPREME COURT 381 #

P L D 2002 Supreme Court 381

Before Sh. Riaz Ahmed and Javed Iqbal, JJ

GHULAM RASOOL and others‑‑‑Petitioners

Versus

GOVERNMENT OF BALOCHISTAN and others‑‑‑Respondents

Civil Petitions Nos.97 and 98‑Q of 2000, decided on 26th July, 2001.

(On appeal from the judgment, dated 14‑9‑2000 passed by Balochistan Service Tribunal, Quetta in Service Appeals Nos. 18 and 19 of 1991).

(a) Civil Servants Act (LXXI of 1973)‑‑----

‑‑S. 8‑.‑Seniority‑‑‑Fixation of seniority with retrospective effect ‑‑‑Scope‑‑Seniority cannot be conferred with retrospective effect unless such right is established‑‑‑Seniority cannot be determined without reference to continuous appointment in a particular grade.

(b) Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S. 8‑‑‑Service Tribunals. Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Seniority‑‑‑Fixation of‑‑‑Services of the civil servants were terminated curing their initial training‑‑‑Review Board reinstated the civil servants and the seniority was fixed from the date of their reinstatement‑‑‑Contention of the civil servants was that their seniority be fixed from the date of their initial appointment‑‑‑Validity‑‑‑Civil servants, in the present case, had remained out of service, during the years from 1973 to 1978 having no concern whatsoever with the cadre of their service and the said period was never taken into consideration by the Review Board and the civil servants were treated on duty by granting extraordinary leave without pay‑‑‑Omission on the part of the Review Board was not accidental, but the same was deliberate and calculated action which had attained finality and the civil servants could not claim any benefit for the intervening period‑‑‑Had the civil servants been reinstated with retrospective effect, such fact could have been mentioned in the order passed by the Review Board‑‑‑Service Tribunal, after in‑depth scrutiny of entire record, had dismissed the appeals preferred by the civil servants and the findings of the Tribunal being unexceptionable did not warrant any interference‑‑‑Supreme Court declined to fix seniority retrospectively in view of the orders passed by the Review Board‑‑‑Leave to appeal was refused.

‑‑‑‑Arts. 185(3) & 212(3)‑‑‑Grant of leave to appeal by Supreme Court‑‑Scope‑‑‑Leave to appeal car only be granted by Supreme Court if the case involved a substantial point of law of public importance.

Muhammad Iqbal v. Secretary to Government of Punjab 1986 SCMR 1; Karamat Hussain v. Province of the Punjab 1982 SCMR 897; Miss Razia Sultana v. Government of Punjab 1981 SCMR 715; M. Yasmin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Irtiqa Rasool Hashmi v. WAPDA 1980 SCMR 722; Dilbar Hussain v. Province of Punjab 1980 SCMR 148; Dilbar Hussain Siddiqi v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268; Muhammad Azhar Khan v. The Service Tribunal, Islamabad 1976 SCMR 262; M.A. Majid v. Government of Pakistan 1976 SCMR 311 and Muhammad Azam v. Chief Irrigation 1991 SCMR 255 ref.

Mohsin. Javed, Advocate Supreme Court and W.N. Kohli, Advocate‑on‑Record (in C.P. No.97‑Q of 2000) for Petitioner.

Basharatullah, Senior Advocate Supreme Court (in C.P. No. 98‑Q of 2000) for‑Petitioner.

Nemo for Respondents.

Date of hearing; 26th July, 2001.

PLD 2002 SUPREME COURT 387 #

P L D 2002 Supreme Court 387

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh and Rana Bhagwandas, JJ

IRSHAD HUSSAIN ‑‑‑Appellant

Versus

SECRETARY, MINISTRY OF FINANCE and others‑‑‑Respondents, Civil Appeal No. 943 of 1996, decided on 20th September, 2001.

(On appeal from judgment of Federal Service Tribunal dated 26‑6‑1995 passed in Appeal No. 59‑L/1995). , (a) Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑Ss. 17, 18 & 19‑‑‑Revised Leave Rules, 1980, R.32(3)‑‑‑Pay during leave‑‑‑Provisions of S. 32(3) of the Revised Leave Rules, 1980 from 21‑9‑1994‑‑‑Effect‑‑‑Applicability‑‑‑Amendment in the Rules‑‑‑Whether prospective or retroactive‑‑‑Amendment in the Rules certainly guarantees. the right of a civil servant to the leave pay at the revised rate if a general revision in pay of civil servant takes place and annual increment accruing due during the period of leave as such the amendment is prospective in nature and has no retroactive effect.

(b) Fundamental Rules‑‑‑

‑‑‑‑ F.R. 26(a)‑‑‑Increment, award of‑‑‑Counting of service ‑‑‑Conditions‑‑Civil servant after return from medical leave was retired from service‑‑Annual increments during the period of leave were denied to the civil servant‑‑‑Service Tribunal maintained the decision of the Authorities and dismissed the appeal of civil servant‑‑‑Validity‑‑‑Where the case of the civil servant squarely fell under R.26(a) of the Fundamental Rules, he was entitled to earn annual increment during the period of leave sanctioned to him, which could not be denied arbitrarily and/or in a whimsical manner‑‑‑Authorities conceded that the civil servant was entitled to the relief asked for‑‑‑Judgment passed by the Service Tribunal was set aside and the civil servant was entitled to annual increments with all consequential benefits for the period when he was on medical leave.

M. Tahir Chaudhry, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Appellant.

M. Nawaz Bhatti, D.A.‑G., M.S. Khattak, Advocate‑on‑Record and Muhammad Hanif Bhatti, Director Legal, N.S.O. for Respondents.

Date of hearing: 20th September, 2001.

PLD 2002 SUPREME COURT 391 #

P L D 2002 Supreme Court 391

Present : Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

MUHAMMAD YOUSUF through

Legal Heirs and others‑‑‑Petitioners

Versus

NOOR DIN and others‑‑‑Respondents

Civil Petition No. 1163 of 1999, decided on 4th February, 2002.

(On appeal from judgment dated 13‑4‑1999 passed by the Lahore High Court, Lahore in C.M. No.64 of 1991 in R.S.A. No.256 of 1979).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 12(2)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Final judgment for the purposes of S.12(2), C.P.C.‑‑‑Petition for leave to appeal‑‑‑If the Supreme Court merely, reaffirms a judgment or order of the High Court by refusing leave to appeal the final judgment in terms of S.12(2), C.P.C. would be of the High Court and not of the Supreme Court‑‑‑If, however, the Supreme Court reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High‑ Court, the final judgment or order would be of the Supreme Court for the purpose of S.12(2), C.P.C.

If the Supreme Court merely reaffirms a judgment or order of a High Court by refusing leave to appeal the final judgment in terms of section 12(2), C.P.C. will be of the High Court and not of the Supreme Court and if the Supreme Court reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, the final judgment or order would be of the Supreme Court for the purposes of section 12(2), C.P.C.

In the present case by dismissing the petition for leave to appeal Supreme Court had affirmed and not reversed the judgment of the High Court. The final judgment in terms of section. 12(2), C.P.C. was, therefore, of the High Court and as such there could be no dispute with the proposition that jurisdiction to entertain and decide the application under section 12(2), C.P.C. moved by the petitioners vested exclusively in the High Court.

Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516 and Abid Kamal v. Mudassar Mustafa and others 2000 SCMR 900 fol.

Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171 and Mubarak Ali v. Fazal Muhammad and another PLD 1995 SC 564 ref.

Ch. Noor Elahi, Advocate Supreme Court and Rana M.A. Qadir, Advocate‑on‑Record (absent) for Petitioners.

Nemo for Respondents.

Date of hearing: 4th February, 2002.

PLD 2002 SUPREME COURT 394 #

P L D 2002 Supreme Court 394

Present: Iftikhar Muhammad Chaudhry Hamid Ali Mirza and Abdul Hameed Dogar, JJ

GOVERNMENT OF N.-W.F.P. through

Secretary Forests, Peshawar and others---Appellants

Versus

SAID AKBAR SHAH & COMPANY---Respondent

Civil Appeal No.575 of 1995, decided on 11th February, 2002.

(On appeal from the judgment dated 17-7-1994 passed by the Peshawar High Court Bench Abbotabad in Civil Revision No. 136 of 1991).

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

----S. 96---Appeal---Limitation---Two Government functionaries were defendants in the suit and each one had independent right to file an appeal against the preliminary decree, jointly or independently and there was no impediment in their way to obtain separate certified copies of the judgment appealed against---One defendant obtained the copy of the judgment beyond the limitation period while the superior officer amongst the two defendants (Government functionaries) had rightly applied for the certified copy of the judgment and obtained the same and appended with the memo. of the appeal---Validity---Notwithstanding the fact that when there were defendants more than one they had separate right to file appeal being dissatisfied from the judgment operating against them and could prefer an appeal before the Appellate Court in terms of S.96, C.P.C. and for doing so they could separately obtain certified copy of the judgment intended to be appealed against and out of the copies of judgment one of them could be appended with the memo. of appeal, but Court hearing the appeal could not raise objection that as two or more copies of the judgment were obtained therefore the one on the basis of which appeal became time-barred should be appended or it should be presumed that as on the basis of another copy of judgment which was obtained by one of the defendants the appeal had become time barred although the same had not been appended with the memo. of appeal under consideration.

Syed Alamdar Hussain Shah v. Muhammad Ramzan and others 1976 SCMR 347 distinguished.

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

----S. 100---Appeal---District 'Judge had not touched the merits of the case at all and dismissed the appeal being time-barred---High Court, in appeal had held that the appellant had got no case on merits---Validity---High Court, in such a situation might have refrained to comment on the merits of the case--Appeal of the appellant having been found to be within time, Supreme Court instead of remanding the case to the High Court remanded the same to the District Judge for decision of appeal on merits.

Muhammad Waris Khan, Additional Advocate-General, N.-W.F.P. for Appellants

Malik Fazal Hussain, Senior Advocate Supreme Court, Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 11th February, 2002.

PLD 2002 SUPREME COURT 399 #

P L D 2002 Supreme Court 399

Present: Iftikhar Muhammad Chaudhry, Humid Ali Mirza and Sardar Muhammad

Raza Khan, JJ

In re: SUO MOTU CRIMINAL ORIGINAL NO. 1 OF 2001

Suo Motu Criminal Original No. 1 of 2001 in Civil Appeals Nos.475 to 478 of 1998, decided on 29th January, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 204 & 189‑‑‑Capital Development Authority Ordinance (XXIII of 1960), Ss.2(k), 30; 31 & 36‑‑‑Contempt of Court‑‑‑Commissioner, Capital Development Authority while disposing of a revision petition under S.36 of the Capital Development Authority Ordinance, 1960, had differed in his judgment with the interpretation placed by the High Court and the Supreme Court on Ss. 2(k), 30 & 31 of the said Ordinance in the judgments reported in Sardar Begum and others v. The Capital Development Authority and others PLD 1977 Lah. 1200 and Muhammad Younus and others v. Capital Development Authority and others PLD 1976 SC 752 by using intemperate language‑‑‑Was obligatory on the Commissioner to follow the said reported judgments in letter and spirit in terms of Art.189 of the Constitution‑‑Although the Administrative Functionaries did not enjoy judicial powers but when they were required to pronounce a judicial decision in judicial proceedings instituted before them, they were bound by the judgments of the superior Courts as if they were functioning as a judicial forum having powers of Court to the extent of the decisions of the cases required to be made by them judiciously‑‑‑Commissioner, therefore, had no lawful authority to differ with the law laid down in the reported judgments and by not following the same he had made himself liable for contempt of Court because while disagreeing with the principles laid down therein he had used intemperate language‑‑‑Respondent had tendered unqualified apology for his action and had also placed himself at the mercy of the Court‑‑‑Perusal of the order passed by the Commissioner way back in 1983, however, indicated that he had not differed with the judgments quoted before him with mala fide intention but on account of non‑understanding of judicial principles pertaining to apply the judgments of the superior Courts‑‑‑Supreme Court, therefore, had extended to the respondent the benefit of such extenuating circumstances and did not exercise jurisdiction of contempt of Court as provided under Art.204 of the Constitution‑‑‑Show‑cause notice issued to the, respondent/Commissioner was discharged accordingly with a warning to him that , in future he should remain careful while interpreting judgments passed by the superior Courts, and if he repeated such conduct he would be dealt with strictly without showing any leniency to him.

Sardar Begum and others v. The Capital Development Authority and others PLD 1977 Lah. 1200; Muhammad Younus and others v. Capital Development Authority and others PLD 1976 SC 752; (Kaur) Mata Prasad and another v. (Kuar) Nageshar Sahai and others AIR 1925 PC 272; Chaudhary Muhammad Khan v. Sanaullah and another PLD 1971 SC 324 and Khalid Rashid and another v. The State I'LD 1972 SC 729 ref.

Waseem Sajjad, Senior Advocate Supreme Court for former Commissioner (Kh. Zahir Ahmed).

Date of hearing: 29th January, 2002.

PLD 2002 SUPREME COURT 403 #

P L D 2002 Supreme Court 403

Present: Sh. Raiz Ahmed, Javed Iqbal and Muhammad Nawaz Abbasi, JJ

DILMIR---Appellant

Versus

GHULAM MUHAMMAD and 2 others---Respondents

Civil Appeal No.28 of 1995, decided on 23rd January, 2002.

(On appeal from the judgment, dated 25th May, 1993 of the Lahore High Court, Lahore, passed in C.R. No.2157 of 1989).

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

----Art. 185(3)---Civil Procedure Code (V of 1908), S.115---Revision--Concurrent findings of fact recorded by two Courts below---Interference by High Court in exercise of revisional jurisdiction under S.115, C.P.C.--Validity---Leave to appeal was granted by Supreme Court to consider whether in the circumstances of the case, High Court was justified in the exercise of revisional jurisdiction under S.115, C.P.C. to reverse the concurrent findings of fact of the Courts below.

(b) Limitation---

------Question of limitation---Duty of Court ---Scope---Bounden duty of Court to notice the question of limitation, irrespective of the fact whether the question had been agitated or not---Any order or judgment passed by Trial, Appellate or Revisional Courts should be indicative of the fact that the Courts concerned were not only aware but were conscious regarding the question of limitation to be dealt with the same diligently with application of mind prior to dilating upon and deciding the controversy on merit because disposal on merit alone was not sufficient to presume that the delay was condoned.

Muhammad Buta v. Habib Ahmad PLD 1985 SC 153 and Ahsan Ali v. District Judge PLD 1969 SC 167 ref.

----S. 115---Revision---Reappraisal of evidence---Concurrent findings of fact by two Courts below---Interference by High Court in exercise of revisional jurisdiction under S.115, C.P.C.---Both the Courts below had concurrently decided the matter in favour of the respondents---High Court in exercise of revisional jurisdiction under S.115, C.P.C. reappraised the evidence and set aside the concurrent findings of the two Courts below---Validity---High Court, in exercise of such jurisdiction, could have reappraised and re evaluated the entire evidence, when the findings were based on insufficient evidence, erroneous assumptions of facts and patent errors of law---Where the evidence led by the appellant had not been scrutinized vigilantly and no reason had been given for discarding the same, the judgment passed by High Court was set aside---Supreme Court remanded the case to High Court for deciding question of limitation as well application for production of additional evidence.

Mian Saeed-ur-Rehman Farrukh, Advocate Supreme Court and Sh Whuddin, Advocate-on-Record (absent) for Appellant.

S.M. Masood, Advocate Supreme Court and S. Inayat Hussain, Advocate-on-Record (absent) for Respondents.

Date of hearing: 23rd January, 2002.

PLD 2002 SUPREME COURT 408 #

P L D 2002 Supreme Court 408

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh and Rana Bhagwandas, JJ

Mst. ZAHIDA SATTAR and others---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeals Nos.328 to 338 of 2001, decided on 4th January, 2002.

(On appeal from the judgment of the High Court of Sindh, Karachi, dated 26-1-2001 passed in H.C.As. Nos.281 to 291 of 2000).

Per Munir A. Sheikh, J. Muhammad Bashir Jehangiri and Rana Bhagwandas, JJ. agreeing--

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

----Ss. 3, 9(a)(iv)(v), 12, 13, 18 & 33---Civil Procedure Code (V of 1908), S.9 & O.VII, R.I1---Specific Relief Act (I of 1877), S 42 --- Constitution of Pakistan (1973), Art.185---Charge against accused was of having accumulated properties acquired by misusing his official position in the names of his dependents/relatives (appellants) as benamidars---Properties standing in appellants' names were included in the charge and freezed under S.12 of the National Accountability Bureau Ordinance, 1999 while treating the accused a3 real owner thereof---Appellants filed civil suits for declaration that they were the real owners of properties and not benamidars of the accused---Defendant filed application under O.VII, R.11, C.P.C. for rejection of the plaints on the ground that jurisdiction of Civil Court to proceed with such suits was barred by virtue of S.13 of the National Accountability Bureau Ordinance---Trial Court dismissed the application, but Appellate Court .accepted the same and rejected the plaints ---Validity--Allegations subject-matter of the charge and issue framed in the suits were the same---Had' the same been a dispute between the real owner and 'ostensible owners, who were alleged to be benamidars arising from denial of latter's right by the former, certainly the same would have been a dispute of civil nature triable only by Civil Court under S.9 of C.P.C.---Where accused holder of public office was being tried for accumulation of wealth acquired by him by illegal and corrupt practices by misusing his official capacity in the name of his spouses/relatives, the dispute was not of a civil nature between two private parties, for there was no dispute between the 4ccused i.e. the alleged real owner and his other relatives/spouses i.e. ostensible owners/alleged benamidars, regarding title qua the properties in question inter se, which could be decided as a dispute of civil nature by Civil Court--Trial of issue framed in such suits by Civil Court would amount to trial of a criminal charge by a Civil Court, which was subject-matter of criminal proceedings, the cognizance of which had been taken by the Court of exclusive jurisdiction created under the special law---Jurisdiction of Civil Court, thus, stood expressly or impliedly barred from entertaining such suits---Impugned judgment was not suffering from any illegality or other legal infirmity calling for interference---Supreme Court dismissed the appeals in circumstances.

(b) Appeal---

----Remedy of appeal being a substantial right could not be availed by a person unless conferred by the statute.

----Arts. 23 & 24---No person could be deprived of his fundamental right to hold and acquire property save in accordance with law.

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

----Ss. 9, 12, 13 & 18---Constitution of Pakistan (1973), Art.185-y Reference involving properties in the name of benamidars/third parties--Remedy---Absence of express provision to exclude the applicability of principles of natural justice of giving hearing to a person adversely affected by an order or judgment of the Court under the Ordinance---Supreme Court in such circumstances held that benamidar would Nave a right to approach the Court during the trial and before passing of final judgment, he would be heard---Where the properties were alleged to have been purchased by the accused in the names of his spouse, relative and other as benamidars, the Court would itself summon those persons and give them opportunity to produce evidence in support of their claim as to ownership in their own right to substantiate that they had sufficient sources of their own to acquire the properties and would thereafter decide the case.

(e) Maxim---

----"Ubi jus ibi remedium" (Where there is a right, there is a remedy).

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

----Ss. 12, 13(c) (as substituted by National Accountability Bureau (Amendment) Ordinance (XXXV of 2001)] & 32---Freezing of assets--Appeal by accused or aggrieved party---Accused or any other aggrieved party, whose claim or objection against freezing of property has been dismissed by the Court may within 10 days file an appeal against such order before High Court.

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

----Ss. 12, 13(c) [as amended by National Accountability Bureau (Amendment) Ordinance (IV of 2000) & National Accountability Bureau (Amendment) Ordinance (XXXV of 2001)] & 32---Constitution of Pakistan (1973), Art. 199---Freezing of assets between 3-2-2000 and 10-8-2001--Remedy of aggrieved person---Person affected by freezing order passed under S.12 of the Ordinance during the interregnum between 3-2-2000 and 10-8-2001 i.e. the date of promulgation of Ordinance IV of 2000 and Ordinance XXXV of 2001 respectively, did not have a right of appeal, thus, he could invoke the Constitutional jurisdiction of High Court.

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

----S. 32---Constitution of Pakistan (1973), Art.199---Appeal against final judgment of the Court could be filed only by the State or the accused--Ostensible owners or benamidars, if heard by the Court and findings recorded against them, might invoke any other remedy including the remedy under Art. 199 of the Constitution.

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

----Ss. 17 & 18---Criminal Procedure Code (V of 1898), S.439---Order or judgment passed under the National Accountability Bureau Ordinance--Remedy of revision against such order/judgment under Criminal Procedure Code, 1898---Validity---Availability of remedy of revision petition provided under Cr.P.C. was not free from doubt as the Ordinance provided that such provisions of Cr.P.C. would apply to proceedings under the Ordinance the applicability of which had not been expressly excluded.

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

----Ss. 12, 13, 18 & 32---Criminal Procedure Code (V of 1898), S.439--Constitution of Pakistan (1973), Art.199---Treating appeal or criminal revision as Constitutional petition---Jurisdiction of High Curt---Properties standing in appellants' names were included in the charge framed against accused and were freezed---Appellants claiming to be real owners thereof filed appeals against such judgment, which were entertained by High Court as criminal revisions---Validity---Where such appeals or revisions were not maintainable, High Court, in exercise of its jurisdiction, was competent to treat such appeals as Constitutional petitions under Art.199 of the Constitution.

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

----S. 9---Civil Courts have jurisdiction to try all suits except those cognizance of which is expressly or impliedly barred---Where there is a right, there is a remedy (ubi jus ibi remedium).

(l) Natural justice, principles of--

---- No person- could be condemned unheard as regards any matter in which he had any interest---Principle of natural justice of hearing a person before condemning him as to his rights would be deemed to have been embodied in every statute unless application thereof had been expressly or impliedly barred.

Mushtaq A. Memon, Advocate Supreme Court, Abid Zubairi, Advocate Supreme Court and Mrs. Majida Razvi, Advocate-on-Record for Appellants (in all Appeals).

M. Ibrahim Satti, Advocate Supreme Court and Ejaz M. Khan, Advocate-on-Record for Respondent No.2 (in all Appeals).

Date of hearing: 15th October, 2001.

PLD 2002 SUPREME COURT 422 #

P L D 2002 Supreme Court 422

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh and Rana Bhagwandas, JJ

GOVERNMENT OF N.‑W.F.P. through

Collector, Mardan and others‑‑‑Appellants

Versus

ABDUL SAMAD KHAN and others‑‑‑Respondents

Civil Appeals Nos. 1057 to 1061 and 1858 of 2000, 1693, 1694, 1951 and 1983 to 1993 of 2001, decided on 8th January, 2002.

(On appeal from the judgment of the Peshawar High Court, Peshawar, passed in R.F.As. Nos.70, 88, 104 and 86 of 1997 dated 18‑4‑2000 and R.F.A. Nos. 68, 69, 71, 81, 82, 89, 90, 91, 92 and 99 of 1997, dated 13‑3‑2001).

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

‑‑‑‑Ss. 11, 18, 30, 31 & 54‑‑‑Award of compensation‑‑‑Dispute as to entitlement of compensation ‑‑‑Obejctors claimed to be owners of suit land on the bass of gift mutation, whereby other land belonging to their grandfather was also gifted to them ‑‑‑Grant father of objectors subsequently sold suit land to respondents through registered sale‑deed‑‑‑Trial Court, First Appellate Court and High Court found that factum of gift of suit land had Appellate been proved‑‑‑Contention of objectors was that gift made regarding other land through same mutation had not been challenged by anybody, therefore, gift being one single indivisible transaction could not be held to have not been proved qua suit land‑‑‑Validity‑‑‑Making of gift as well as delivery of possession thereunder had not been proved on record‑‑‑Had grandfather of objectors gifted the suit land, then there was no reason as to why he should have executed a registered sale‑deed in favour of respondents of the same land‑‑‑Acquisition of suit land through mutation had been mentioned in objection/reference, but it had not been stated as to whether such mutation was based on sale either orally or registered document or a gift‑‑‑No particulars of the transaction on the basis of which such mutation was sanctioned had been given‑‑‑Concurrent findings of Courts below on question of gift regarding suit land did not suffer from any legal infirmity calling for interference by Supreme Court‑‑‑Objectors had rightly been found to be not entitled to compensation of suit land on the basis of such mutation being not its owners‑‑‑Impugned judgment was not suffering from any illegality such as misreading or non‑reading of any material piece of evidence‑‑‑Supreme Court dismissed the appeal in circumstance.

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

‑‑‑‑S. 23(1)‑‑‑Acquisition of land underneath the factories‑‑‑Claim for compensation on account of damage to machinery etc. ‑‑‑Objectors produced in evidence reports depicting the total alleged damage caused to spare parts, machines, electric appliances etc., and estimated cost of such damage‑‑Witness examined in Court to prove such documents admitted in cross examination that such assessment/estimates were prepared by another employee of appellants and he had just put his signatures thereon‑‑‑Referee Court rejected the report of such witness on the ground that the same had been prepared after dismantling of two factories; and that the witness producing the same was not qualified, but a matriculate‑‑‑Validity‑‑‑Such findings were not suffering from any illegality such as misreading or non‑reading of any material piece of evidence‑‑‑Referee Court had rightly found that sufficient and reliable evidence was not available to prove entitlement to any compensation on account of any alleged damage to the machine‑‑Supreme Court dismissed the appeal in circumstances.

‑‑‑‑Ss. 23(1) & 54‑‑‑Acquisition of land‑‑‑Enhancement of compensation by High Court‑‑‑Validity‑‑‑Land acquired was in compact block‑‑‑Land comprising of Khasra No.308 was lying adjacent to Dual Carriage Mardan Nowshera G.T. Road, while some Khasra numbers were situated on North and South of Khasra No.308 having approach from Mardan‑Nowshera Road from the West, and remaining Khasra numbers were adjacent to Dual Carriage Road of a Housing Scheme‑‑‑Whole land had rightly been found to be not lesser in value than Khasra No.308‑‑‑High Court had rightly given weight to rates of properties jointly fixed by revenue and municipal Authorities as supporting evidence in addition to outer evidence on record that such land on account of its situation and potentialities was valuable and there was no reason why its compensation should not be fixed on the basis of such rates, though prepared for some other purpose‑‑‑Mutation produced in evidence regarding sales made either prior or after the acquisition of land. had also supported the findings of High Court while enhancing compensation on the criteria of potentialities of land as determined by it‑‑‑Impugned judgment was not suffering from any illegality such as misreading or nonreading of any material piece of evidence‑‑‑Justice having been done to the parties, no interference was called for‑‑‑Supreme Court dismissed the appeal in circumstance.

Rashidul Haq Qazi, Advocate‑General, N.‑W.F.P. for Appellants/Respondents (in all Government Appeals).

Qazi Muhammad Anwar, Advocate Supreme Court and M.Z. Qureshi, Advocate‑on‑Record for Appellants/Respondents (in C.As.Nos.1057, 1058, 1858 of 2000, 1693, 1694, 1984 and 1985 of 2001), Saeed Baig, Advocate Supreme Court, M. Ismail Fahmi, Advocate-on‑Record and M.S. Khattak, Advocate‑on‑Record for Respondents/Appellants (in C.As. Nos. 1059 to 1061 of 2000, 1951, 1988 and 1990 to 1993 of 2001)

M. Afzal Siddiqi, Advocate Supreme Court, M.S. Khattak, Advocate‑on‑Record and Tasleem Hussain, Advocate‑on‑Record for Respondents 4n C.As. Nos. 1983, 1986 and 1987 of 2001).

Dates of hearing: 23rd to 25th October, 2001.

PLD 2002 SUPREME COURT 436 #

P L D 2002 Supreme Court 436

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

CHAIRMAN, DISTRICT EVACUEE TRUST, JHELUM‑‑‑Petitioner

versus

ABDUL KHALIQ through Legal Heirs and others‑‑‑Respondents

Civil Petition No.591 of 2001, decided on 7th February, 2002.

(On appeal from the judgment/order dated 14‑11‑2000 passed by the Lahore High Court, Lahore in S.A. No.30 of 1970).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Supreme Court Rules, 1980, O.XIII, R.1‑‑‑Limitatin Act (IX of 1908), S.5‑‑‑Petition for leave to appeal filed by Government Department was barred by limitation of 32 days ‑‑‑Condonation of delay‑‑Plea that time had been spent in completion of departmental proceedings‑‑Validity‑‑‑Delay of limitation in filing of proceedings could only be condoned if it was sought for on sufficient grounds otherwise in absence thereof no special indulgence could be shown to such Department as no preferential treatment could be offered to the Government Departments or autonomous bodies and their cases had to be dealt with in the same manner as the cases of an ordinary litigant/citizen‑‑‑Supreme Court observed that the Court was conscious that declining relief either to the Government or public litigant in view of the provision of law of limitation, serious injustice was caused to either of the parties before the Court which could not help, it in view of the existing law, however, concerning the cases of Government/autonomous bodies, at least one thing could be done that if case was decided against it on the question of limitation, the direction must be passed to the high‑ups of the Department so he/they may initiate departmental action against those officers who were directly or indirectly responsible for causing delay in initiating the case beyond period of limitation.

Cases pertaining to Federal/Provincial Government or autonomous bodies instituted beyond limitation prescribed by law before subordinate Court, High Court and Supreme, Court without assigning any justification acceptable under the law for not approaching the Court within time and in the applications seeking condonation of delay, if filed, invariably the plea is taken that time has been spent in completion of departmental proceedings, therefore, delay may be condoned. The concerned department must know that delay of limitation in filing of proceedings can only be condoned if it is sought for on sufficient grounds otherwise in absence thereof no special indulgence can be shown to such department because no preferential treatment can be offered to the Government department or autonomous bodies Their cases have to be dealt with in the same manner as the cases of an ordinary litigant/citizen.

On declining relief either to the Government or public litigant in view of the provision of limitation serious, injustice is caused to either of the party before the Court but the Court cannot help it in view of the existing law. However, concerning the cases belonging to the Government/ autonomous bodies, at least one thing can be done that if case is decided against it on the question of limitation, the direction must be passed to the high‑ups of, the department so, that he/they may initiate departmental action against those officers who are directly or indirectly responsible for causing delay in instituting the cases beyond period of limitation and even in absence of such directions, ii would be duty of such officer to take action accordingly because .if such unscrupulous persons are not proceeded against, they will have no fear of causing huge losses to the Government/autonomous functionaries at the cost of public exchequer because ultimately it is the public at large who suffers, being ultimate beneficiaries of the Government property.

Supreme Court appreciated the initiating actions against the officers who were responsible for filing the petition beyond period of limitation and hoped that in future other responsible officers would also do so.

1 Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others 1998 SCMR 307; Lahore High Court, Lahore through Registrar v. Nazar Muhammad Fatiana and others 1998 SCMR 2376; Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5 others v. Jamaluddin and others 1996 SCMR 727; Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Ltd. 1990 SCMR 1059 and Government of Punjab through Secretary (Services), Services, General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioner.

Maj.‑Gen. (R) Inayat bllah Khan Niazi, Chairman, Evacuee Trust Property Board, Government of Pakistan, Lahore.

Nemo for Respondents.

Date of hearing: 7th February, 2002.

PLD 2002 SUPREME COURT 439 #

P L D 2002 Supreme Court 439

Present: Iftikhar Muhammad Chaudhry, Syed Deedar Hussain Shah and Hamid Ali Mina, JJ

KARACHI METROPOLITAN CORPORATION and others---Appellants

versus

Messrs QARSHI INDUSTRIES (PVT.) LTD. and another---Respondents

Civil Appeal No .904 of 1995, decided on 24th January, 2002.

(On appeal from the judgment dated 31-3-1994 passed by High Court of Sindh, Karachi in Constitutional Petition No.D-614 of 1994).

(a) West Pakistan Pure Food Rules, 1965---

----R. 7(b)---Constitution of Pakistan (1973), Art 185(3)---Non-mentioning the type of flavour on the label of the bottle of syrup---Effect---Leave to appeal was granted to interpret R.7. West Pakistan Pure Food Rules. 1965 in view of the contentions of the Department that non-mentioning the type of flavour on the label of the bottle of syrup with the legend natural flavour or containing natural flavouring would tantamount to violation of R.7(b) of West Pakistan Pure Food Rules, 1965.

(b) West Pakistan Pure Food Rules, 1965---

----S. 7(b)---West Pakistan Pure Food Ordinance (VII of 1960), S.4---Prohibition of mixing and selling mixed food and flavouring the compounds in food---Essential requirements to attract provisions of R.7(b) of the West Pakistan Pure Food Rules, 1965 read with S.4, West Pakistan Pure Food Ordinance, 1960 for laung prosecution against manufacturers of food stated.

A perusal of section 4 of the West Pakistan Pure Food Ordinance, 1960 indicates that mixing and selling mixed food is prohibited under the prescribed Rules or such food, which is injurious to health. With reference to facts of the present case Rule 7(b) of the West Pakistan Pure Food Rules, 1965 is relevant because according to Public Analyst sample of Jam-e-Shireen has been found non-genuine as its label does not contain legend of natural flavour or contains natural flavouring. To attract provisions of section 4 of the Ordinance it is necessary to prima facie establish that in the food items such compound has been mixed which is prohibited being contrary to the prescribed, rules or mixing of such compound in it has rendered it injurious for health and if these two factors exist then the prosecution can be launched successfully against an accused under the law. Therefore, to attract provisions of Rule 7(b) of the Rules it is to be read conjunctively with opening part of Rule 7 to find out whether subject food had addition of any component, which is injurious to health, or any compound has been added for achieving natural flavour or natural flavouring. But in absence of such compound in the food section 4 of the Ordinance read with Rule 7(b) of the Rules will not be attracted for launching prosecution against manufacturer of food or whatever the case may be. Ordinarily words and phrases implied into a statute are to be read as per their original/natural meanings with a view to achieve the object for which the law has been promulgated and if while interpreting. a statute any word/phrase used therein is interpreted by adopting artificial meanings it would give rise to an ambiguity on account of which such law would not be understood in its real perspective causing ultimate injustice to concerned litigant. The controlling part of Rule 7 of the Rules manifestly makes it clear that to attract section 4 of the Ordinance it is necessary to establish that the food items contain an additional article of food used for flavouring and if the addition of such article has been made in the food then it is necessary that the label must contain the legend natural flavour or contains natural flavouring but if there is no addition of any article of food of any flavouring compound then it is not necessary to inscribe upon the label the legend "natural flavouring". With reference to the present case it would have been appropriate if the Public Analyst in the report had said that besides its ingredients inscribed on the label some other article of food has been added for natural flavour or natural flavouring and added compound or article is injurious for the health then the appellants could have successfully established violation of section 4(a) and (b) of the Ordinance read with Rule 7(b) of the Rules against the manufacturer but in absence of Analyser's report merely for the reason that on the label the legend natural flavour or contains natural flavouring has not been mentioned would not be sufficient to call for the prosecution.

If the department had received a credible information that Syrup way a non-genuine food item then why they did not analyse its contents instead of confining only to the extent of the label pasted on the bottle.

Thus in absence of sufficient material available on record prima facie contravention of section 4(a) and (b) of the Ordinance and Rule 7(b) of the Rules is not established, therefore, under these circumstances High Court rightly issued writ in favour of the manufacturer.

----Words and phrases implied to a statute to be given natural meanings with a view to achieve object of the statute---Principles.

Ordinarily words and phrases implied into a statute are to be read as per their original/natural meanings with a view to achieve the object for which the law has been promulgated and if while interpreting a statute any word/phrase used therein is interpreted by adopting artificial meanings it would give rise to an ambiguity on account of which such lain would not be understood in its real perspective causing ultimate injustice to concerned litigant.

Abrar Hasan, Advocate Supreme Court and M. Shabbir Ghaury, Advocate-on-Record (absent) for Appellants.

Nawab Saeedullah Khan, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record (absent) for Respondents.

Date of hearing: 24th January, 2002.

PLD 2002 SUPREME COURT 446 #

P L D 2002 Supreme Court 446

Present: Muhammad Bashir Jehangiri, CJ. and Nazim Hussain Siddiqui, J

KARACHI METROPOLITAN CORPORATION, KARACHI and another‑‑‑Appellants

versus

RAHEEL GHAYAS and 3 others‑‑‑Respondents

Civil Appeal No. 1094 of 1996, decided on 24th January, 2002

(On appeal from the judgment dated 29‑9‑1994 of the High Court of Sindh, Karachi passed in R.A. No.290 of 1991).

(a) Regularisation and Development of Katchi Abadis Order, 1979 [M.L.O. 110, Zone 'C']‑‑‑

‑‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal ‑ was granted to consider. as to whether Martial Law Order 110 was intended to cover the unauthorised occupation of the person, who had raised construction on open Government land either in the form of a house or a shop and not a case where no construction was put up.

(b) Regularisation and Development ' of Katchi Abadis Order, 1979 [M.L.O. 110, Zone 'C']‑‑‑

‑‑‑‑Declaration of any area to be Katchi Abadi did not confer any right on any person in occupation in the Katchi Abadi and an area which was reserved for any other purpose (planned area) was not to be declared to be Katchi Abadi.

‑‑‑‑Art. 31‑‑‑Admission‑‑‑Proof‑‑‑Facts admitted were not to be proved

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 85‑‑‑Civil Procedure Code (V of 1908), O.XIII, R.1 & O.XVI, R.1‑‑‑Public document‑.‑Value‑‑‑Public document could not be ignored merely because the same was not confronted and was not produced in Court within seven days‑‑‑Intrinsic value of a public document was to be examined on its contents‑‑‑Where it was not proved that copy of a public document was a false document nor it had been shown that Government functionaries had any special interest to manipulate the same as to deprive any person from his property, and the party concerned, in cross‑examination, had admitted its contents, there was no need for getting such document confronted.

(e) Regularisation and Development of Katchi Abadis Order, 1979 [M.L.O. 110, Zone 'C']‑‑‑

‑‑‑‑Specific Relief Act (I of 1877), Ss. 42 & 55‑‑‑Suit for declaration and injunction to the effect that plaintiff was entitled under M.L.O. 110/183 to regularization of the plot in his possession‑‑‑Record showed that deposition of the plaintiff was recorded in 1987 arid he gave his age as 26 years thus at the time when he allegedly occupied the said plot, he was a minor of about 12 years and at that time he could neither occupy a plot nor could ask for its regularization‑‑‑Plaintiff in fact had unauthorisedly encroached upon the said plot in 1984 and with the connivance of the Government functionaries committed fraud by manipulating documents, showing his possession since 1973‑‑‑Plaintiff had unequivocally admitted that the boundary wall raised i}r him was demolished prior to the tiling of suit and that said plot was laying open since then and that the plot in question was in a scheme which was a "planned area" ‑‑‑Plaintiff had failed to show even his possession on the site at the time of inspection‑‑‑Effect‑‑‑Martial Law Order No.110 as reconstituted by M.L.O. 183 provided that save as otherwise provided in the said Martial Law Order declaration of any area to be Katchi Abadi did not confer any right on any person in occupation in the Katchi Abadi and that an area which was reserved for any other purpose (planned area) was not be declared to be Katchi Abadi‑‑‑Plaintiff was an encroacher of public property within the meaning of M.L.0.202 and the structure of encroachment was removed through a valid order which established that the Authorities were in possession and plaintiff was not in possession of the plot at the time the suit was filed which suit in its inception was not maintainable in circumstances.

Abrar Hasan, Advocate Supreme Court and M. Shabbir Ghaury, Advocate‑on‑Record (absent) for Appellants.

Respondents: Ex parte.

Date of hearing: 22nd November, 2001.

PLD 2002 SUPREME COURT 452 #

P L D 2002 Supreme Court 452

Present: Muhammad Bashir Jehangiri, C. J., Syed eedar Hussain Shah and Khalil-ur-Rehman Ramday, JJ

TOWN COMMITTEE, GAKHAR MANDI---Appellant

Versus

AUTHORITY UNDER THE PAYMENT OF WAGES ACT GUJRANWALA and

57 others---Respondents

Civil Appeal No.368 of 1998; decided on 29th January, 2002.

(On appeal from the order of Lahore High Court, Lahore dated 22-4-1999 passed in C. P. No. 1773-L of 1998).

(a) Payment of Wages Act (IV of 1936)-

----Preamble, Ss. 1, 2 & 3---Factories Act (XXV of 1934), S.2(j) --- Object, purpose, scope and application of Payment of Wages Act, 1936---Protection of wages of workers under Payment of Wages Act, 1936---Essentials--Classes of persons employed in an industry---Application of employees of Town Committee before Authority under the Payment of Wages Act, 1936 claiming from the Town Committee a specified amount for the extra-labour/overtime put in by them having performed their respective duties even on public holiday---Validity---Provisions of Payment of Wages Act, 1936 would be attracted oily if it could be established that the employer was a factory whereupon the employees would become the persons employed in a factory whose wages were then got protected under the Payment of Wages Act, 1936---Town Committee being not a factory in terms of Payment of Wages Act, 1936, employees thereof were not persons employed in a factory---Authority functioning under the Payment of Wages Act, 1936, therefore, had no jurisdiction to deal with the matter or to pass the order--Principles.

In the present case employees of a Town Committee had submitted 72 application before the Authority under the Payment of Wages Act, 1936 claiming, from the Town Committee, a specified amount for the extra-labour/overtime put in by them and for having performed their respective duties even on holidays.

The provisions of section 3 of the Payment of Wages Act, 1936 cast an obligation on the employer to pay wages, required to be paid under the said Act, to persons employed by it. The preamble of an enactment which briefly sets forth the object which such an enactment seeks to achieve, indicates in the present case, that the purpose of enacting the said Act of 1936 was not to secure payment of wages for all kinds of employees by all manner of employers but to ensure payment of wages only to "certain classes of persons employed in industry". Subsection (4) of section 1 of the Act lays down the parameters within which bounds the provision of the said Act were to operate. The provisions of the said subsection (4) of section 1 tell that the application of the said Act of 1936 shall be restricted only to the "persons" employed in any factory and to persons employed otherwise than in a factory upon any Railway by a Railway Administration": Subsection (5) of section 1 however authorizes a Provincial Government to extend the application of the provisions of the Act of 1936 to persons employed in "any Industrial Establishment or any class or group of Industrial Establishment".

Employees of a Town Committee, as in the present case, are obviously not the persons employed with the Railways. Section 2(ii) of the said Act of 1936 defines "Industrial Establishment" but the same is also not relevant for the purposes because it is not the case of the employees that the Town Committee was an Industrial Establishment and that the Government of the Province of Punjab had extended the application of the Act in question to it.

Thus the provisions of the said Act No.IV of 1936 would be attracted to the case in hand only if it could be established that the appellant Town Committee was a factory whereupon respondents Nos. 2 to 57 would become persons employed in a factory whose wages would then get protected under the Act of 1936.

The Payment of Wages Act of 1936 defines a "factory" through section 2(i) to mean a factory as defined in clause (j) of section 2 of the Factories Act being Act XXV of. 1934.

The expression "manufacturing process" also stands defined by section 2(g) of the Factories Act of 1934.

As per section 2(g) of the 'Factories Act, 1934 a person is a worker within the purview of the Act of 1936, if he is employed in a manufacturing process or in cleaning any machinery or premises used for a manufacturing process or in any other kind of work incidental to or connected with the subject of the manufacturing process.

The Town Committee is admittedly not involved in making, altering repairing, ornamenting, finishing or packing any article of substance with a view to its use, sale, transport, delivery or disposal. Although nothing was brought on record in the present case to demonstrate that the Town Committee was selling sewage to the cultivators for cultivation purposes yet if it be presumed that the said Committee was engaged in some such business even then such an Act would not become a manufacturing process because it is not a sale simpliciter of an article which is the deciding factor in the matter as it is the making, altering etc. and the treatment of such an article which is the real determining factor. Employees of Town Committee could not show that the sewage being sold, if at all, was being sold after treating the same.

The Town Committee was also not generating, transforming or transmitting power nor was any evidence led to show that it was pumping oil, water or sewage or that the employees were employed for pumping any oil, water or sewage.

Town Committee was not a factory in terms of the Payment of Wages Act of 1936 nor could employees thereof be held to be person employed in a factory.

As a consequence, the Authority performing function under the Payment of Wages Act No IV of 1936 had no jurisdiction to deal with the matter in question or to pass the impugned order. The said order is therefore, declared to be illegal and of no legal effect.

(b) Jurisdiction---

----Significance---Jurisdiction of any forum, Court or Tribunal holding any proceedings is always the core question---Obligatory on officers presiding over such fora to determine the question of their jurisdiction whenever some doubt exists or is expressed about it, irrespective of the state of the proceedings at which such an objection is raised---Where the Authority had ignored and had failed to resolve the issue of its jurisdiction when it was sought to be urged, order of such an Authority, in circumstances, could not be justified and sustained in law.

----Art. 199---Constitutional jurisdiction of High Court---Scope---Despite availability of an alternate remedy, where the impugned order was ex facie without lawful authority or where it was a case of lack of or absence of or even of excess of jurisdiction, a writ of certiorari could be granted---Where the case was one of absence of jurisdiction on the part of the Authority, High Court was not right in rejecting the petition under Art.199 of the Constitution in that case only because a remedy by way of appeal was available to the petitioner---Such order of the High Court could, therefore, not be said to be an order justifiable in law---Principle.

Writ of certiorari could be granted, despite availability of an alternate remedy, where, for example, the impugned order was ex facie without lawful authority or where it was a case of lack or absence of or even excess of jurisdiction.

The present was a case of absence of jurisdiction on the part of the respondent-Authority and the High Court was, therefore, not right in rejecting the petition under Article 199 of the Constitution only because a remedy by way of appeal was available to the petitioner before it. The order of the High Court passed in Writ Petition could therefore not be said to be an order justifiable in law.

S.A. Haroon v. The Collector of Customs PLD 1959 SC (Pak.) 177; Pakistan v. Zia-ud-Din PLD 1960 SC 440; Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others PLD 1961 SC 119; Nagina Silk Mills v. The Income-tax Officer and others PLD 1963 SC 322; Premier Cloth Mills Ltd. v. The Sales Tax Officer 1972 SCMR 257 and Murree Brewery Co. Ltd. v. Pakistan PLD 1972 SC 279 ref.

Farooq Zaman Qureshi, Advocate Supreme Court for Appellant.

Mian Sarfraz-ul-Haq, Advocate Supreme Court for Respondent.

Date of hearing: 30th January, 2002.

PLD 2002 SUPREME COURT 460 #

P L D 2002 Supreme Court 460

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Hamid Ali

Mirza, JJ

PAKISTAN TOBACCO COMPANY LTD. and others---Appellants

Versus

GOVERNMENT OF N.W.F.P. through Secretary Law and others---Respondents

Civil Appeals Nos. 1242 to 1246 of 1997 and 1248 to 1250 of 1998, decided on 28th January, 2002.

(On appeal from the judgment/order dated 20-10-1997 passed by Peshawar High Court, Peshawar in W.Ps.Nos.653, 654, 655/96, 1448 and 1449 of 1997).

(a) Interpretation of Constitution---

----Principle---While interpreting the Constitutional provisions, approach of the Court should be dynamic, progressive, and liberal keeping in view the changed situation, which is intended to be catered by existing provisions of the Constitution or by new legislation.

Pir Sabir Shah v. Shad Muhammad Khan. Member, Provincial Assembly, N.W.F.P. and another PLD 1995 SC 66 fol.

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

---Art. 151---Interpretation of Art. 151, Constitution of Pakistan with reference to definition of phrase "prohibiting or restraining" as used in cl.(a) of sub-Article (3) thereof in ordinary dictionary meaning.

Black's Law Dictionary, 5th Edn. and World Book Dictionary by Scoot Fetzer Company, Chicago ref.

----S. 11---North-West Frontier Province Finance Act (I of 1996), S.11--Constitution of Pakistan (1973), Arts. 151(1)(3) & 142---Levy of Tobacco Development Cess by Provincial Government---Inter-Provincial trade--Freedom---Concept---Levy of Tobacco Development Cess by the Provincial Government is not excess delegation of legislative power to the executive and would fall within the definition of compensatory or incidental tax which would not cause hindrance in trade, commerce and intercourse rather such reasonable/nominal tax would facilitate the Provincial Government in purpose of generating revenue for development etc.---Levy of cess not causing hindrance in freedom of trade commerce and intercourse, the provisions of S.11, N.W.F.P. Finance Alm 1997 or N.W.F.P. Finance Act, 1996 are not violative of Art.151(1)(3) of the Constitution--Principles---Supreme Court, however, observed that if the Provincial Assembly or the Provincial Government intended to levy "Tobacco Development Cess" it should have either fixed the rate of the cess itself as it was done by means of S. 11 N.W.F.P. Finance Act, 1996 or some guidelines should have been provided in S.11, N.W. F. P. Finance Act, 1997 channelizing the power to the Executive Government to fix the rate because levy of such development cess must be reasonable being a type of compensatory tax which is charged on the movement of Tobacco being taken outside the Province---Provincial Government was directed to issue fresh notification for purposes of fixing the rate of cess/tax strictly following the procedure laid down under S.22, N.W.F.P. General Clauses Act, 1956 and till then notification dated 9-7-1997 shall remain suspended and the executive Government shall recover "Tobacco Development Cess" at the rate of Re. 1 per kg. and if such exercise was completed by the Provincial Government within the period of three months, after the pronouncement of Supreme Court judgment, the observation of the High Court to the extent of the subject in question shall hold the field.

Liberal and dynamic interpretation of the word 'free' does not mean an unqualified freedom at all in the trade, commerce and intercourse between the Provinces because unchecked freedom in the trade, commerce and intercourse without any reasonable prohibition and restriction would not be beneficial for an orderly society inasmuch as even there would be lack of discipline and the Provincial administration would not be in a position to control trade and commerce prohibited/contraband articles, therefore, a qualified restriction if imposed up to the trade which has not financially burdened the traders and had also not impeded the flow of trade and commerce, would not be violative of the provisions of Article 151 (1)(3) clause (a) of the Constitution. As for simpliciter levy of cess by the Provincial Government (N.W.F.P.) on the movement of tobacco outside the Province that would not tantamount to placing any prohibition or restriction on the trade, commerce and intercourse between the Provinces. However, if the entry of the goods into the Province or export of goods to the other Provinces is completely banned then of course it would amount to placing a complete prohibition, limitation and restriction. As far as the imposition of development taxes like "tobacco Development Cess" is concerned, such levy would fall within the definition of compensatory or incidental tax which would not cause hindrance in trade, commerce and intercourse rather such reasonable/nominal tax would facilitate the Provincial Government for the purpose of generating revenue for development etc.

Clause (b), sub-Article (3) of Article 151 of the Constitution, itself authorises the Provincial Government to impose a tax subject to the conditions namely that no tax will be imposed as between goods manufactured and produced in the Province and similar goods not so manufactured or produced to discriminate in favour of the former goods, meaning thereby that if similar goods are brought in the Province, then tax is imposed on them, whereas no local tax has been imposed on the goods which are manufactured in the Province because if such nature of tax is allowed then the similar goods which are imported in the Province would not be in a position to compete with the goods which are manufactured in the Province and in this manner there would be discrimination in the latter kind of goods. This sub-Article further says that no tax shall be imposed on the goods produced outside the Province which discriminates between the goods manufactured or produced in any area in Pakistan and similar goods manufactured or produced in any other area in Pakistan meaning thereby that if any goods is imported (brought in the Province) from a particular Province and tax imposed upon it, whereas similar goods which is manufactured or produced in the Province other than the goods which was imported from the particular Province and then if the tax is not imposed on the goods which is manufactured and produced in other area in Pakistan, it would cause discrimination. Admittedly the "Tobacoo Development Cess" is recovered on the movement of the Tobacco outside the Province of N.W.F.P. It is admitted that even if the factories which are manufacturing tobacco products not in the Province of N.W.F.P. they consumed locally produced tobacco instead of bringing tobacco from outside the Province. Levy of cess is not causing hindrance in freedom of trade, commerce and intercourse, therefore, the provision of section 11 of the N.W.F.P. Finance Act, 1996 or N.W.F.P. Finance Act, 1997 is not violative of Article 151 (1)(3) of the Constitution.

Imposing of "Tobacco Development Cess" by the Provincial Legislature is permissible being not contrary to the provisions of Article 151(3)(a) of the Constitution and imposition of such tax on the trade and commerce can be considered to be compensatory tax for the purpose of development in the Province. Imposition of the cess/tax will not cause prohibition or restriction in the movement of tobacco outside the Province. The Provincial Assembly is competent to levy a reasonable cess on the movement of tobacco. Initially when in the year of 1996, cess was levied and the Provincial Legislature itself fixed its rate at Re. 1 per kg. but in the N.W. F. P. Finance Act of 1997, section 11 was re-enacted in pursuance whereof powers to levy the development cess was delegated to the Government, which the latter was required to fix from time to time by notification in the official Gazette. A perusal of section 11 of the Act clearly demonstrates that no guidelines were provided enabling the Provincial Government to fix the rate from time to time by means of notification. Vide a Notification, dated 9th July, 1997 being No.AO-II/LCB/6-23/97 the Provincial Government through Finance Department had issued the revised notification spelling out the rate of the cess. It seems that a notification was issued wherein the rates of different items of tobacco were fixed including Rs.1.25 on tobacco leafs. As per section 11 of the Act of 1996 flat rate of development cess on tobacco was levied at the rate of Re. 1 per kg. As far as remaining items namely Choora, Naswar, etc., are concerned, no rate was fixed by the Provincial Legislature. In view of said position, it is not understandable as to on what basis the criteria cess was increased from Re. 1 per kg. to Rs.1.25.per kg. and as how for the first time cess is being charged -on the items other than the tobacco leafs namely Choora, Naswar, etc. Because substantive provision of law i.e. section 11 of the Act does not authorize recovery of cess on any other item except tobacco. There is possibility that the other items on which cess is being charged might be inferior type of tobacco or its derivatives. But according to provision of section 11, no authority was conferred upon the executive Government to recover cess on these items. Delegation of powers should not be uncontrolled and unbridled and to check the arbitrary attitude of the executive in exercise of powers, the Legislature must provide some guidelines basing on the policy of the Government to exercise such powers.

The Legislature must retain in its own hands the essential legislative function. Exactly what constituted "essential legislative function", was difficult to define in general terms, but this much was clear that the essential legislative function must at least consist of the determination of the legislative policy and its formulation as a binding rule of conduct. Thus, where the law passed by the Legislature declares the legislative policy and lays down the standard which is enacted into a rifle of law it can leave the task of subordinate legislation which by its very nature is ancillary to the status to subordinate bodies, i.e., the making of rules, regulations of byelaws. The subordinate authority must do so -within the framework of the law, subordinate legislation has to be consistent with the law under which it is made and cannot go beyond the limits of the policy and standard laid down in the law provided the legislative policy is enunciated with sufficient clearness or a standard is laid down that the Courts should not interfere with the discretion that undoubtedly rests with the Legislature itself in determining the extent of delegation necessary in a particular case.

A statute challenged on the ground of excessive delegation must therefore, be subject to two tests, (1) whether it delegates essential legislative function or power, and (2) whether the Legislature has enunciated its policy and principle for the guidance of the delegate.

Naked, unbridled and unguided powers cannot be conferred upon the outside agency like executive.

Article 142 of the Constitution has demarcated, subject-matters, for the purpose of legislation by Majlis-e-Shoora and Provincial Assembly. The Majlis-e-Shoora have been promulgating laws on the basis of which executive Government is authorized to levy the tax but for doing so, guidelines are provided by the Legislature itself to the executive with a view to channelize such powers and also to avoid exercise of such power arbitrarily or without reasonability. Reference in this context can be made to section 18-A of the Customs Act. A perusal whereof would indicate that a complete guideline has been made available to the executive for the purpose of the recovery of regulatory duty. There is doubt that the levy of "Tobacco Development Cess" falls within the prerogative of Provincial Assembly and the same can be levied and collected for development purpose in the Province. Such identical laws viz. West Pakistan Sugarcane Control Act, 1963 are applicable in other Provinces. Levy of such development cess are not restricted to territorial limits or zone. Therefore, if the Provincial Assembly or the Government of N.W.F.P. intended to levy "Tobacco Development Cess", it should have either fixed the rate of the cess itself as it was done by means of section 11 of the N.W.F.P. Finance Act, 1996 or some guidelines should have been provided in the parent section, channelizing the power to the executive Government to fix the rate because levy of such development cess must be reasonable being a type of compensatory tax which is charged on the movement of tobacco being taken outside the Province.

However, despite the fact that on account of excessive delegation of the powers, the executive Government has often misused the authority conferred upon it by the Provincial Legislature but striking down of such law by the High Court was not warranted because simultaneously it was the obligatory duty of the Court to save the law instead of destroying it. Section 11 of the N.W. F. P. Finance Act, 1997 even now can be saved by making directions to the Provincial Government to issue fresh notification for purposes of fixing the rate of cess/tax strictly following the procedure laid down under section 22 of the N.W.F.P. General Clauses Act, 1956 and till then the notification dated 9th July, 1997 shall remain suspended and the executive Government shall recover "Tobacco Development Cess" at the rate of Re. 1 per kg. that above exercise shall be completed by the Provincial Government of N.W.F.P. if it is so intended within the period of three months, after the pronouncement of the judgment, failing which the observation of High Court of Peshawar to the extent of the subject-matter of discussion shall hold the field.

Section 11 of the N.W. F. P. Finance Act, 1997 is not ultra vires the Article 151 (1)(3)(a) of the Constitution.

Messrs Habib Sugar Mills v. Government of Sindh 1996 SCMR 1409; Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.W.F.P. and another PLD 1995 SC 66; Black's Law Dictionary, 5th Edn., World Book Dictionary by Scoot Fetzer Company, Chicago; Kotri Association of Trade and Industry v. Government of Sindh and another 1982 CLC 1252; Messrs Khyber Electric Lamps Manufacturing Ltd. and others v. Chairman, District Council, Peshawar and another 1986 CLC 533; Arshad Akram & Co. and 8 others v. Divisional Superintendent, Pakistan Railways, Rawalpindi and 5 others PLD 1982 Lah. 109; Mirpurkhas Sugar Mills Ltd. v. District Council, Tharparkar and 2 others 1990 MLD 317; Sayphire Textile Mills Ltd. and 9 others v. Government of Sindh and others PLD 1990 Kar. 402; Star Flour Mills v. Province of Punjab and others PLD 1996 Lah. 687; Atiabari-Tea Co. Ltd. and others v. State of Assam AIR 1961 SC 232; Mehmood Majeed, Director, Asia Flour Mills, Bahawalpur (Pvt.) Ltd., Bahawalpur v. The State and 3 others PLD 1998 Lah. 296; Automobile Transport (Rajasthan) Ltd. and others v. State of Rajasthan and others AIR 1962 SC 1406; 1992 SCMR 372; P.N. Kaushal and others v. Union of India and others AIR 1978 SC 1457; Vasanthlal Manganbhai Sajanwal v. The State of Bombay (1961) 1 SCR 341 (AIR 1961 SC 4); Muhammad Aslant and others v. Punjab Government and others 1996 MLD 685; PLD 1958 SC 41; PLD 1965 Dacca 156; PLD 1966 SC 854; PLD 1988 SC 416 and Shahtaj Sugar Mills Ltd. and 3 others v. Province of Punjab and others 1998 SCMR 2492 ref.

(d) North-West Frontier Province Finance Act (III of 1997)---

----S. 11---North-West Frontier Province Finance Act (I of 1996), S.11--Constitution of Pakistan (1973), Arts.142 & 151---Levy of "Tobacco Development Cess" by Provincial Government---Concept of "excessive delegation of legislative power to the executive"---Applicability---Principles.

1992 SCMR -372; P.N. Kaushal and others v. Union of India and others AIR 1978 SC 1457; Vasanthlal Manganbhai Sajanwal v. The State of Bombay (1961) 1 SCR 341 (AIR 1961 SC 4); Muhammad Aslam and others v. Punjab Government and others 1996 MLD 685; PLD 1958 SC 41; PLD 1965 Dacca 156; PLD 1966 SC 854; PAD 1988 SC 416 and Shahtaj Sugar Mills Ltd. and 3 others v. Province of Punjab and others 1998 SCMR 2492 ref.

Syed Ali Zafar, Advocate Supreme Court, Haider. Zaman Qureshi, Advocate and Imtiaz Muhammad Khan, Advocate-on-Record for Appellants (in C. As. Nos. 1242 and 1245 of 1997).

M. Sardar Khan, Senior Advocate Supreme Court and Imitaz Muhammad Khan, Advocate-on-Record for Appellants (in C.As. Nos.1243 and 1246 of 1997).

Nemo for Appellant (in C.A. No. 1.248 of 1997).

Barrister Jehanzeb Rahim, Advocate Supreme Court and Rashid-ul-Haq Kazi, Advocate-General (N.W. F. P.) for Appellant (in C. As. Nos. 1249 and 1250 of 1998).

Barrister Jehanzeb Rahim, Advocate Supreme Court and Rashid-ul-Haq Kazi, Advocate-General (N.W.F.P.) and Mian Hayatullah, ETO, Nowshera for Respondents ((in C.As. Nos. 1242 to 1,246 of 1997 and 1248 of 1998).

M. Sardar Khan, Senior Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Respondents (in C.As. Nos. 1249 and 1250 of 1998).

Date of hearing: 11th October, 2001.

PLD 2002 SUPREME COURT 488 #

P L D 2002 Supreme Court 488

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

ALLAH DAD---Petitioner

Versus

BASHIR AHMED and another ~---Respondents

Civil Petition No. 152-Q of 2001, decided on 4th March, 2002.

(On appeal from the judgment/order dated 20-10-2001 passed by High Court of Balochistan, Circuit Bench Sibi in C.R.No.18 of 2001).

(a) Pre-emption-

----Reference to Talb-e-Muwasibat while making Talb-e-Ishhad-- Necessity---While making Talb-e-Ishhad, reference to Talb-e-Muwasibat is necessary in order to confirm that pre-emptor is really interested in the property and wanted to enforce his right by making both the Talbs i.e. Talb-e-Muwasibat and Talb-e-Ishhad.

(b) Pre-emption---

----Mode of performance of "Talb-e-Muwasibat" and "Talb-e-Ishhad"--- Essentials---Talb-e-Muwasibat is, ordinarily, not made before the vendee, because no sooner the pre-emptor acquires knowledge that the property on which he has a right of pre-emption has been sold by the vendor, he without wastage of time is bound to make Talb-e-Muwasibat (also known jumping Talb) in presence of the witnesses---While performing second Talb i.e. Talb-e-Ishhad, pre-emptor should attribute such words, which would be sufficient to gather his intention that earlier to it, he has already made Talb-e-Muwasibat.

Muhammad Lokman Mondal v. Amir Ali Mondal and others PLD 1969 Dacca 64; Samundar v. Lal Muhammad and 9 others PLD 1987 Quetta 209; Muhammad Hassan and 2 others v. Shafi-ud-Din and 2 others PLD 1995 Quetta 29 and Malik Nazar Muhammad v. Haji Abdul Rauf and other PLD 1992 Quetta 9 ref.

---Suit for pre-emption ---Omission to make reference to "Talb-e-Muwasibat" at the time of making "Talb-e-Ishhad" Effect--- Pre-emptor would be non-suited for such omission.

S.A.M. Quadri, Advocate-on-Record for Petitioner.

M. Riaz Ahmed, Advocate-on-Record for Respondent No. 1.

Date of hearing: 4th March, 2002.

PLD 2002 SUPREME COURT 491 #

P L D 2002 Supreme Court 491

Present: Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

MUHAMMAD ANWAR KHAN and 5 others---Petitioners

Versus

Chaudhry RIAZ AHMAD and 5 others---Respondents

Civil Petition No. 1966 of 2000, decided on 8th November, 2001.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 11-10-2000 passed in F.A.O.No.89 of 2000).

(a) Administration of justice---

----Rules and regulations are only meant to streamline the procedure and administer the course of justice, but not to thwart the same.

(b) Administration of justice-

---- Duty of the Court is to do substantial justice---Prime object behind all legal formalities is to safeguard the paramount interest of justice---Mere technicality, unless offering insurmountable hurdle should not be allowed to defeat the ends of justice.

Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382; Nazir Ahmed and another v. Muhammad Din and another 2000 SCMR 440 and Imran Ashraf and 7 others v. The State 2001 SCMR 424 ref.

---- Legal precepts are devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure the same against arbitrariness, errors of individual judgment and mala fides.

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

----O. VI, R.14---Constitution of Pakistan (1973), Art.185(3)---Failure to sign written statement---Trial Court closed the defence of defendants for such failure---Appellate Court dismissed the appeal on the ground that neither' defendants signed written statement nor made any request to Trial court to permit them to sign the same, thus, no indulgence should have been shown to them and discretion exercised by Trial Court was apt and proper---Validity--Such sort of approach to determine the lis was not appreciated---Duty of the Court was to do substantial justice Defendants had been made to suffer simply on a technical ground---Much time of the Courts had been wasted on such a very trivial issue; which could have been resolved simply by passing an order calling upon the defendants to sign their written statement-Supreme Court set aside the impugned orders and remitted the case to Trial Court for its decision on merits.

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

----O- VIII, R.10---Failure to file written statement--Penal consequences as envisaged in O. VIII, R.10, C. P. C., would not attract to a case, where only routine order for filing of written statement was made by Court, rather those should only be applied in respect of cases, where written statement was required by the Court through a speaking order.

Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365; Mst. Hakumat Bibi v. Imam Din and others PLD 1987 SC 22; Azad Hussain v. Haji Muhammad Hussain PLD 1994 SC 874; The Secretary, Board of Revenue, Punjab, Lahore and another v. Khalid Ahmad Khan 1991 SCMR 2527; Lahore Municipal Corporation v. Messrs Awan Contractors and others 1989 SCMR 107 and Shafi Muhammad v, Muzaffar-ud-din and others 1990 SCMR 530 ref.

Samad Mehmood, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 8th November, 2001.

PLD 2002 SUPREME COURT 495 #

P L D 2002 Supreme Court 495

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

UMAR BAZ KHAN through Legal Heirs---Petitioner, Versus

Syed JEHANZEB and 16 others---Respondents

Civil Petition No. 196-P of 2000, decided on 4th February, 2002.

(On appeal from the judgment dated 11-4-2000 of the Peshawar High Court, Peshawar passed in Writ Petition No.229 of 1987).

Frontier Crimes Regulation (III of 1901)---

----S. 4---Frontier Crimes Regulation (Repeal) Regulation (I of 1973), S.3--Oaths Act (X of 1873), Ss.9, 10 & 11---General Clauses Act (X of 1897), S.6--Constitution of Pakistan (1973), Arts. 185(3), 199 & 264---Redemption of mortgage---Respondents' father mortgaged land in favour of petitioner for a period of six (6) years with the condition that on his failure to refund mortgage money within said period, the mortgaged land would be deemed to have been sold to mortgagee with further payment of Rs.30,000---Mortgagor offered mortgage money to mortgagee for redemption of mortgage, but on his refusal to receive the same, the mortgagor filed application before A.D.M., 10 days before the expiry of stipulated period---Dispute was later on referred under Frontier Crimes Regulation, 1901 to the Council of Elders, who recommended oath to mortgagee and held that in case he took oath, the claim of mortgagor for redemption would be rejected and mortgagee would be asked to deposit Rs.30,000 within a week, and on his failing to do so, claim of the mortgagor would be decreed on payment of mortgage money--As a result of repeal of Frontier Crimes Regulation, 1901, the case was transferred to Assistant Collector for its decision under ordinary law, who decreed the suit on 19-11-1974---Commissioner accepted the mortgagee's appeal and remanded the case for its decision under Frontier Crimes Regulation, 1901---Revision petition filed by mortgagee was dismissed by Deputy Secretary---Council of Elders gave award directing the mortgagee to take oath about payment of mortgage money in time, which was taken by him in the absence of mortgagor---Award was accepted by A.D.M., and suit for redemption of mortgage was dismissed and mortgagee was declared owner of the land---Revision petition filed by mortgagor against such order was dismissed by Commissioner---Mortgagor then filed Constitutional petition which was withdrawn on 13-2-1984 with permission to file a fresh one---Mortgagor again filed Constitutional petition on 10-3-1987, which was accepted by High Court and concurrent findings of A.D.M., Commissioner and Deputy Secretary were set aside and order dated 19-11-1974. passed by Assistant Collector was restored---Contention of mortgagee/petitioners was that second Constitutional petition was hit by laches having been filed after lapse of 3 years; High Court while condoning such delay had not advanced any reason; orders of hierarchy under Frontier Crimes Regulation, 1901, were given effect by administering oath to mortgagee, thus, Constitutional petition had become infructuous and was not competent; and that after real of Frontier Crimes Regulation, 1901, the proceedings conducted thereunder would be valid as protected under Art.264 of the Constitution and S.6 of General Clauses Act and repeal would be of no effect Respondent's/mortgagor's contention was that High Court had dealt with point of limitation in detail; oath was neither in terms of award nor the same was in accordance with general principles of law as envisaged in Oaths Act, 1873; respondents were not duly served when oath was taken; Frontier Crimes Regulation, 1901 was merely a procedural law and not a substantive law, thus, its repeal would not be retrospective in effect; amendment was made with regards to criminal law only, whereas no such amendment was made in Civil Law, thus, civil cases pending in the Court would not be affected; and that mortgagee would have become the owner only, if he had paid the remaining amount, which had not yet been paid---Supreme Court granted leave to appeal to consider, inter alia, the said contentions of the parties.

Sardar Nawab Haji Muhammad v. Additional Commissioner and Commissioner, Frontier Crimes Regulation, Quetta Division, Quetta and others PLD 1964 (W.P.) Lah. 401; Abdul Samad and others v. Painda Muhammad and others PLD 1997 Pesh. 35; Chairman, District Screening Committee v. Sharif Ahmad Hashmi PLD 1976 SC 258 and National Bank of Pakistan v. Taj Muhammad PLD 1984 Lah. 417 ref.

Qazi Muhammad Anwar, Senior Advocate Supreme Court instructed by Syed Safdar Hussain, Advocate-on-Record for Petitioners.

Mian Younis Shah, Senior Advocate Supreme Court for Respondents.

Date of hearing: 4th February, 2002.

PLD 2002 SUPREME COURT 500 #

P L D 2002 Supreme Court 500

Present: Sh. Riaz Ahmad, Mian Muhammad Ajmal and Tanvir Ahmed Khan, JJ

Messrs DADABHOY CEMENT INDUSTRIES LTD. and 6 others‑‑‑Petitioners

Versus

NATIONAL DEVELOPMENT FINANCE CORPORATION, KARACHI‑‑‑Respondent

Civil Petitions for Leave to Appeals Nos.2720 to 2723 of 2001, decided on 2nd October, 2001.

(On appeal from the judgment of the High Court of Sindh, Karachi dated 19‑9‑2001 passed in Special High Court Appeals Nos. 159 to 162 of 2001).

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

‑‑‑‑S. 12(2) read with O.XXIII, R.3‑‑‑Contract Act (IX of 1872), S.19-‑Corporate and Industrial Restructuring Corporation Ordinance (L of 2000), Ss.2(L). 10, 20 & Sched.‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Suits tiled by petitioner for redemption of mortgaged property and that filed by respondent for recovery of loan amount were disposed of in terms of Memorandum of Understanding executed between the parties, whereby petitioner agreed to pay the loan amount in quarterly instalments subject to the condition that in event of default of any instalment, the entire principal amount and interest accrued thereon then remaining unpaid would become immediately payable by petitioner and respondent would be entitled to file execution application for recovery thereof‑‑‑Petitioner, after paying four (4) instalments stopped further payments and filed applications under S.12(2). C.P.C. which were dismissed by Trial Court‑‑‑Appellate Court also dismissed the petitioner's appeals‑‑‑Contention of petitioner was that Memorandum of Understanding was obtained through misrepresentation, coercion and fraud; disposal of such applications without inquiry was against law, though Trial Court had omitted penal interest, but respondent was still charging the same; and that respondent could refer a question of bona fide dispute relising to liability etc. of the obligor to Governor State Bank of Pakistan for verification and correct determination/calculation by Verification Committee‑‑‑Validity‑‑‑Petitioner had been failed to substantiate the allegations of fraud, misrepresentation and coercion as no particulars thereof had been given in application under S.12(2), C.P.C.‑‑‑Mere allegation not supported by any material would not invariably warrant inquiry or investigation in each case‑‑‑Petitioners had agreed to pay interest/mark‑up on rescheduled outstanding amount, as such they being the privy to rescheduling of loan could not turn around to say that interest/markup had been fraudulently charged‑‑‑Parties with their free‑will and consent had entered into compromise, whereupon signatures of the parties and their counsel had been verified by Trial Court, which had decreed 'the suit in terms thereof‑‑‑Petitioners had acted upon the consent decree by paying four (4) quarterly instalments‑‑‑Had petitioners been aggrieved of consent decree, they would have challenged the same in appeal‑‑‑No appeal had been filed against consent decree, which had attained finality‑‑‑Consent decree did not suffer from fraud, misrepresentation or want of jurisdiction, thus, the same was not amenable to challenge under S.12(2), C.P.C.‑‑'Corporate and Industrial Restructuring Corporation Ordinance, 2000, came into force on 22‑9‑2000, whereas consent decree was passed on 18‑2‑1998, thus, the date on which consent decree was passed, Corporate and Industrial Restructuring Corporation Ordinance, 2000 was not in force‑‑‑Said Ordinance came into force during pendency of applications under S.12(2), C.P.C. but its provisions could not be pressed into service as the applications had been found to be incompetent and consent decree had been found to have been lawfully and validly passed‑‑‑Judgment passed by Appellate Court was well‑founded not warranting any interference‑‑Supreme Court refused to grant leave to appeal and dismissed the petitions in circumstances.

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

‑‑‑‑S. 12(2)‑‑‑Fraud, misrepresentation, allegations of‑‑‑Decision of such application without inquiry‑‑‑Validity‑‑‑Mere allegations of fraud, misrepresentation and coercion not supported by any material would not invariably warrant inquiry or investigation in each case.

‑‑‑‑S. 12(2)‑‑‑Framing of issues‑‑‑Trial Court is not bound to frame issues in each and every case, but it depends upon the facts and circumstances of each case‑‑‑Where Court finds that further inquiry is required, it would frame issues and, record evidence of the parties, but if it is of the opinion that no inquiry is required, then it can dispense with the same and proceed to decide the application.

(d) Fraud‑‑‑

‑‑‑‑ Allegation of‑‑‑Where allegation of fraud is levelled, the same must be specified and details thereof should be given.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, M. Afzal Siddiqui. Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioners.

Khalid Anwar, Senior Advocate Supreme Court and M.A. Zaidi Advocate‑on‑Record for Respondent.

Date of hearing: 2nd October, 2001.

PLD 2002 SUPREME COURT 509 #

P L D 2002 Supreme Court 509

Present: Nazim Hussain Siddiqui, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

Messrs MASOOMI ENTERPRISES PAKISTAN

(PVT.) LIMITED. and 2 others---Petitioners

Versus

Messrs PING TAN FISHERY COMPANY and 5 others---Respondents

Civil Petitions Nos. 92 and 93 of 2002, decided on 24th January, 2002.

(On appeal from the judgment dated 12-10-2001 of High Court of Sindh, Karachi passed in Admt. Appeals Nos.7 and 8 of 2000).

Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)---

----Ss. 3(2)(h) & 4(4)---Admiralty suit---Maintainability---Plaintiff through an agreement authorised the defendant to operate ships/trawlers named therein on the plaintiff's fishing licence---Defendant defaulted in the payment of agreed' amount and committed other breaches of contract whereupon plaintiff tiled Admiralty Suits claiming damages and arrest of the ships--High Court after finding that such vessels were owned by another company and not by defendant, transferred the suits to be dealt with on its original side as ordinary suits--Division Bench of High Court dismissed the appeals filed by the plaintiff on the grounds that such claim had not arisen from an agreement for hire of the ships: no ship belonging to plaintiff had been hired by defendant; said agreement could be termed as one for hire or use of a licence, which did not fall under S.3(2)(h) of Admiralty Jurisdiction of High Courts Ordinance, 1980; and if it was assumed that defendant was sister concern and held majority shares in the owner company, yet no action in terms of S.4(4)(b) of Admiralty Jurisdiction of High Courts Ordinance, 1980, could be brought against those vessels as the plaintiff's claim had not arisen from those vessels---Validity---High Court had jurisdiction in any, claim based on any agreement relating to carriage of goods in a ship or to its use or hire of a ship and none of the conditions was attracted to the present case---Defendant had only to ply its own ships on the licence of plaintiff and pay certain amount---Agreement in .question basically was for use of licence, and such condition was not covered by S.3(2)(h) of Admiralty Jurisdiction of High Courts Ordinance, 1980---Two arrested vessels were not those, which had been used in performance of the contract---High Court had rightly reached at the conclusion that ships in question did not belong to defendant as such, even action under S.4(4) of Admiralty Jurisdiction of High Courts Ordinance, 1980, was not warranted---Suits had rightly been transferred to original side---Supreme Court refused to grant leave to appeal and dismissed the petitions in circumstances.

Yukong Ltd., South Korean Company, Seoul South Korea v. M.T. Eastern Navigator and 2 others PLD 2001 SC 57 ref.

Ch. Naseer Ahmed, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 24th January, 2002.

PLD 2002 SUPREME COURT 514 #

P L D 2002 Supreme Court 514

Present: Sh. Riaz Ahmed, Mian Muhammad Ajmal and Syed Deedar

Hussain Shah, JJ

Sheikh MUHAMMAD RASHID ‑‑‑Appellant

Versus

MAJID NIZAMI, EDITOR‑IN‑CHIEF, THE NATION AND NAWA‑E‑WAQAT, LAHORE and another‑‑‑Respondents

Civil Appeals Nos. 1427 and 1952 of 1996, decided on 6th March, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore dated 27‑3‑1996 passed in Regular First Appeals Nos. 106 and 164 of 1991).

(a) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 185(2)(d)‑‑‑Appeal‑‑‑Delay of 196 days ‑‑‑Condonation‑‑‑Out of two appeals arising out of the same judgment, one appeal was time‑barred‑‑Supreme Court condoned such delay as it proposed to decide both the appeals through a common judgment.

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

‑‑‑‑S. 98(2), proviso‑‑‑High Court Rules and Orders (Lahore), Vol. V, Chap. 4‑H, R.5‑‑‑Constitution of Pakistan (1973), Art. 185(2)(d) ‑‑‑ Suit for damages‑‑‑Difference of opinion on a point of law between members of a Division Bench of High Court‑‑‑Reference to third Judge‑‑‑Referee Judge while agreeing with the view of one Judge of the Division Bench dismissed the suit and set aside judgment/decree passed in favour of appellant by Trial Court‑‑‑Contention of appellant was that Referee Judge could not pronounce judgment, rather he should have referred the matter back to the Division Bench for decision after recording his opinion on the points referred to him and could not go beyond the reference‑‑‑Validity‑‑‑Perusal of the judgment of Referee Judge would show that he had confined his opinion to the points referred to him and had not gone beyond the reference.

Muhammad Sayyar v. Vice‑Chancellor, University of Peshawar and others PLD 1974 SC 257 ref.

‑‑‑‑Art. 19 [as amended by Constitution (Fourth Amendment) Act (LXXI of 1975). S. 4]‑‑‑Freedom of Press‑‑‑Scope‑‑‑Omission of, the word "defamation" from Art.19 of the Constitution and its substitution by words "commission of" by Constitution (Fourth Amendment) Act, 1975, has enlarged the scope of freedom of Press, but it does not provide licence to the Press to publish such material, which is prejudicial to the interest of any person or may harm or cause damage to reputation, honour and prestige of a person‑‑‑Press is not free to publish anything it desired, but its freedom is subject to such reasonable restrictions as may be legitimately imposed under law in the public interest and glory of Islam‑‑‑Press must take due care and caution before publishing any material in the Press, verify its correctness from the concerned quarters and keep themselves within the bounds and ambit of the provisions of Art. 19 of the Constitution.

(d) Defamation‑‑‑

‑ ‑‑‑Libellous publication‑‑‑Plea of malice‑‑‑Burden of proof‑‑‑Law presumes malice in the sense of wrongful act done intentionally by publishing defamatory matter ‑‑Privileged communication or fair comments upon a matter of public interest is the lawful excuse for publication of such matters, but in such case, onus lies upon plaintiff to establish the fact of malice in order to maintain the action‑‑‑When plea of fair comment on a matter of public interest or privileged communication is raised, then state of mind of the publisher, who published the defamatory matter becomes material and in that case plaintiff has to prove actual malice i.e. spite or ill‑will or arty indirect or improper motive‑Burden of proving express malice both by extrinsic or intrinsic evidence lies on the plaintiff to show that publications were actuated by some indirect or improper motive ‑‑Malice must be proved as a fact irrespective of mere inference arising from libellous character of publication ‑‑‑Plaintiff can be non suited for his failure to prove malice by cogent evidence.

Law of Tort by Salmond, p.428 ref.

(e) Defamation‑‑‑

‑‑‑‑Suit for damages against newspaper for libellous publication‑‑‑Malice plea of‑‑‑Burden of proof‑‑‑Where statements and counter‑statements by political leaders are made, which are usually published in newspapers in good faith, then in such situation, presumption of malice is excluded and burden of proving the malice would lie on the plaintiff

(f) Defamation‑‑‑

‑‑‑‑ Suit for damages against newspaper for publishing defamatory statement made by a third person (non‑party to suit)‑‑‑Defendants published a rejoinder issued by plaintiff', wherein he not only refuted the allegations of third person, but made counter‑allegations against him‑‑‑Such re‑joinder prompted the third person to react, who issued counter‑statements, which were published in the newspapers of defendants‑‑‑Validity‑‑‑Allegations made by third person could only be controverted by plaintiff as he alone was in the knowledge of the correctness or otherwise of such allegations‑Defendants offered ample opportunities to plaintiff to rebut or contradict such allegations, but he refused to issue any contradiction thereof, thus, the same would be deemed to be correct and defendants/newspaper could not be held responsible for that as they had published the same in good faith in public interest after verifying correctness thereof from its maker‑‑‑Where statements and counter‑statements were made by parties, and those were published in newspaper in good faith, then presumption of malice would be excluded and burden of proving the malice in fact, would lie on the plaintiff‑‑Plaintiff had to prove that statements made by third person were not correct and those had been maliciously published by the defendants Plaintiff had neither proved, such allegations to be false nor had averred malice in his plaint, which was an essential ingredient in every action of libel nor the same had been proved through cogent evidence that defendants had maliciously published the statements of third person due to spite or ill‑will‑‑Such third person while appearing in Court as defendants' witness had owned the allegations made by him against the plaintiff‑‑‑Cause of action had arisen to the plaintiff from such statement of third person, but plaintiff did not make him party in the suit and targeted the defendants who had published the statement an good faith and in public interest‑‑‑Plaintiff had failed to substantiate his claim by not proving the actual malice on the part of defendants‑‑‑Suit was dismissed in circumstances.

(g) Defamation‑‑‑

‑‑‑‑ Suit for libel‑‑‑Malice, averment of‑‑‑Alleging malice in the plaint is an essential ingredient in every action of libel.

Raja Muhammad Anwar Senior Advocate Supreme Court, Raja Shafqat Abbasi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Appellant.

Ch. Fazal‑e‑Hussain, Advocate‑on‑Record for Respondents.

Date of hearing: 5th November, 2001.

PLD 2002 SUPREME COURT 526 #

P L D 2002 Supreme Court 526

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

SHAUKAT KHAN‑‑‑Petitioner

Versus

ASSISTANT POLITICAL AGENT, LANDI KOTAL, KHYBER AGENCY and others‑‑‑Respondents

Civil Petition No. 178‑P of 2002, decided on 17th April, 2002.

(On appeal from the judgment/order dated 5‑3‑2002 passed by Peshawar High Court, Peshawar in W.P. 760 of 2001).

(a) Constitution of Pakistan (1973)‑‑‑‑‑‑‑Arts. 185(3), 199 & 247(7)‑‑‑Supreme Court and High Court (Extension of Jurisdiction to Certain Tribal Areas) Act (XXVII of 1973), S.3‑‑Constitutional petition‑‑‑Political Agent, power to issue summons‑‑Jurisdiction of High Court‑‑‑Scope‑‑‑Summons issued by Political Agent was assailed by the petitioner in Constitutional petition before High Court‑‑Petition was dismissed by the High Court, for want of jurisdiction‑‑‑Validity‑‑‑In light of the judgment passed by Supreme Court in the case titled Qaum Bangash and others v. Qaum Turi and others reported as 1991 SCMR 2400, the jurisdiction of Peshawar High Court was not extended in the Tribal areas‑‑‑Constitutional petition filed by the petitioner was rightly dismissed by the High Court‑‑‑Leave to appeal was refused.

Qaum Bangash and others v. Qaum Turi and others 1991 SCMR 2400 rel.

(b) Practice and procedure‑‑‑‑‑‑‑ Proceedings, challenge to‑‑‑Remedy‑‑‑For setting aside an order or to challenge the proceedings, remedy should be availed first of all within the hierarchy of the law under which the forum whose proceedings have been objected to is functioning instead of approaching different forums for the redressal of grievance.

Muhammad Ashfaq v. The State PLD 1973 SC 368 and Khudai Dad and others v. The State PLD 1997 Quetta 69 ref.

Javed A. Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 17th April, 2002.

PLD 2002 SUPREME COURT 529 #

P L D 2002 Supreme Court 529

Present: Javed lqbal, Hamid Ali Mirza and Tanvir Ahmad Khan, JJ

Malik ZAFAR ABBAS ‑‑‑Petitioner

Versus

Agha RAZA ABBAS QAZILBASH and another‑‑‑Respondents

Criminal Petition No.71 of 2002, decided on 5th April, 2002.

(On appeal from the order of Lahore High Court, Rawalpindi Bench, dated 27‑11‑2001, passed in Criminal Miscellaneous No.CB/1178 of 2001).

(a) Criminal Procedure Code (V of 1898)‑‑‑‑‑‑Ss. 497(5) & 498‑‑‑Penal Code (XLV of 1860), S.406‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Cancellation of pre‑arrest bail‑‑Case against accused was got registered by Federal Government Employees Housing Foundation which prima facie appeared to be bona fide as an amount of Rs.37.8 million had been handed over to the accused who failed to honour his commitment and neither the land was made available nor the said amount was returned‑‑‑Accused had apparently misappropriated a huge amount and the land was not likely to be handed over to the Federal Government Employees Housing Foundation‑‑‑No element of unjustified harassment false implication or ulterior motive either on the part of prosecution or adversaries concerned or mala fides of intended arrest of accused being available in the case, question of grant of pre‑arrest bail did trot arise‑‑Sessions Court as well as the High Court had ignored the principles enunciated by Supreme Court concerning grant of pre‑arrest bail and they had no power to extend the concession of bail before arrest to accused unless all the mandatory prerequisites were satisfied‑‑‑Petition for leave to appeal was converted into appeal and allowed and the pre‑arrest bail granted to accused was cancelled in circumstances.

Murad Khan v. Final‑e‑Subhan P1_D 1 90 SC 82; Rao Qadeet Khan v. State PLD 1981 SC 93; Sardar Muhammad v, State PI.I 1978 SC 203: Muhammad Shafiq v. State 1982 SCMR 384; lvfuhanurtad Azam v. State 1980.SCMR 1,69; Zahur Illahi v. State 1981 SCMR 935; Hidayat Ullah Klan v. The Crown PLD 1949 Lah. 21; Crown v. khushi Muhammad PLD 1953 FC 170; Sadiq Ali v. State PLD 1966 SC 589; Jehandad v. Altaf Hussain 1995 SCMR 1163; Zia‑ul‑Hassan v. State PLD 1984 SC 192; Bibi Rani v. Najabat Ali 1994 SCMR 227; Muhammad Safdar v. State 1983 SCMR 645 and Muhammad Arshad v.State 1.996 SCMR 74 ref.

(b) Criminal Procedure Code (V of 1898)‑‑‑‑‑‑‑5. 498‑‑‑Pre‑arrest ail‑‑‑Principle‑‑‑Question of grant of bail before arrest to an accused does not arise in absence of an element of unjustified harassment, false ‑implication or. ulterior motive either, on the part of prosecution or adversaries concerned or mala fides of intended arrest.

Murad Khan v. F anal‑e‑Subban PLD 1983 SC 82; Rao Qadeer Khan v. State PLD 1981 SC 93; Sardar Muhantmad v. State PLJ 1978 SC 203; Muhammad Shafiq v. State 1982 SCMR 384;. Muhammad Azant v. State 1980 SCMR 269; Zahur Illahi v. State 1_981 SCMR 935; Hidayat Ullah Khan v. The Crown PLD 1949 Lah. 2 i; Crovm v. Khushi Mnbammad PLD 1953 FC .1.70; Sadiq Ali v. State PLD 1966 SC 589; Jehutdad v. Altaf Hussain 1995 SCMR 863; Zia‑ul‑Hassan v. State PLD 1994 SC 192; Bibi Rani v. Najabat Ali 1994 SCMR 2277; Muhammad Safdar, v‑ State 1983 SCMR 645 and Muhammad Arshad v. State 1996 SCMR 74 ref.

Syed Asghar Hussain Sabzwari, Advocate Supreme Court, M.A. Zaidi, Advocate‑on‑Record alongwith Sarfraz A. Mirza, D.G. FGEHF for Petitioner.

Ijaz Ali Akbar Sabzwari, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 5th April, 2002.

PLD 2002 SUPREME COURT 534 #

P L D 2002 Supreme Court 534

Present: Mian Muhammad Ajrnal and Sardar Muhammad Rata, JJ, ATTAULLAH‑‑‑Petitioner

Versus

ABDUR RAZAQ an another‑‑‑Respondents

Criminal Petition for Leave to Appeal No.49‑P of 2031, decided on 23rd January, 2002.

(On appeal from the judgment dated 16‑5‑2001 of the Peshawar High Court, Peshawar passed in Criminal Appeal No.259 of 1999).

(a) Penal Code (XLV of 1860)‑‑‑‑‑‑‑S. 302/34‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), 5.17(4)(5)‑‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Accused could not take two contradictory pleas before High Court and Supreme Court wits= regard to the compctency and maintainability of his appeal filed by him in High Court‑‑‑Accused had opposed in the High Court the preliminary objection raised by the respondent regarding competency of the appeal before the High Court asserting that the appeal and the murder reference were competently filed in the High Court as he had been acquitted of the charge under .S.17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979‑‑‑Accused took a U‑turn in Supreme Court and argued that High Court had no jurisdiction to hear the appeal and to confirm his death sentence as he had been initially charged under S.17(4) of the said Ordinance and that only Federal Shariat Court had the jurisdiction to hear the appeal‑‑‑Accused could not take two different stances on the same issue before two Courts and approbate and reprobate‑‑No punishment having been awarded to accused under the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and he having been acquitted of the charge under the said Ordinance, he could not file appeal before the Federal Shariat Court‑‑‑Accused had been convicted and sentenced to death under S.302/34, P.P.C. by the Sessions Court which was bound under the law to send the reference to High Court for confirmation of death sentence‑‑‑Accused, thus, had rightly filed the appeal to the High Court against his conviction and sentence‑‑‑Prosecution had proved its case through cogent evidence particularly by the testimony of an employee of the deceased who was working as salesman with him and had no enmity to falsely depose against the accused‑‑‑High Court had appreciated the evidence in its true perspective‑‑‑Leave to appeal was refused to accused in circumstances.

(b) Approbation and reprobation‑‑‑‑‑‑Principle‑‑‑None can take two different stances on the same plea before two Courts as approbation and reprobation cannot be allowed.

Barrister Zahoorul Haq, Senior Advocate Supreme Court and Fateh Muhammad Khan, Advocate‑on‑Record for Petitioner.

Abdul Sattar Khan. Advocate Supreme Court and M. Zahoor Qureshi, Advocate‑on‑Record for Respondent No. 1.

Nemo for the State.

Date of hearing: 15th‑ January, 2002.

PLD 2002 SUPREME COURT 540 #

P L D 2002 Supreme Court 540

Present: Javed Iqbal, Hamid Ali Mirza, and Tanvir Ahmed Khan, JJ

GHULAM MUSTAFA and others‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos. 175 and 176 of 2000, decided on 2nd April, 2002.

(On appeal from the judgment dated 23rd November, 1999 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Criminal Appeal No. 127 of 1996 and Murder Reference No.223 of 1996).

(a) Penal Code (XLV of 1860)‑‑‑‑‑‑‑( 302(b)/34‑‑‑Appraisal of evidence‑‑‑Eye‑witnesses residing hardly 1G yards away from the site of incident were natural witnesses whose presence at the spot could not be doubted‑‑‑Ocular evidence inspired confidence‑‑Recovery of the pistol from the accused could not be brushed aside simply for the reason of having been witnessed by the real brother of the deceased which was corroborated by the Investigating Officer‑‑‑Crime empties recovered from the spot were found to have been fired from the pistol recovered from the accused‑‑‑Medical evidence was completely in line with ocular version‑‑‑Locale and the nature of injuries sustained by the deceased had been specifically mentioned by the eye‑witnesses‑‑‑Accused had committed a cold‑blooded murder of a young man on "Chand Raat" in a bazar in a very gruesome manner‑‑‑No convincing evidence was available on record to ‑ take a lenient view in the matter‑‑‑Story put up by the defence was not established on record‑‑‑Appeal was dismissed in circumstances.

Yaqoob Shah v. The State PLD 1976 SC 53 ref.

(b) Penal Code (XLV of 1860)‑‑‑‑‑‑‑S. 302(b)/34‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Appeal against acquittal of accused by High Court‑‑‑Pistol recovered at the instance of accused did not tally with the crime empties taken into possession from the scene of occurrence‑‑‑High Court had recorded the finding of acquittal in favour of accused after evaluating the entire evidence in full depth which did not call for any interference by Supreme Court‑‑‑Appeal filed by the complainant was dismissed accordingly.

Khawaja Sultan Ahmad, Senior Advocate Supreme Court with Anwar H. Mir, Advocate‑on‑Record for Appellant (in Cr.A.No.175 of 2000).

Sh. Zamir Hussairi, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant (in Cr.A.No.176 of 2000).

Anwar H. Mir, Advocate‑on‑Record for Respondent No.1 (in Cr.A.No.176 of 2000).

Date of hearing: 2nd April, 2002.

PLD 2002 SUPREME COURT 546 #

P L D 2002 Supreme Court 546

Present: Sh.Riaz Ahmad, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

Ch. ZULFIQAR ALI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition No.827‑L of 2001, decided on 5th April, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore dated 8‑11‑2000 passed in Criminal Miscellaneous No.4524‑B of 2001).

(a) National Accountability Bureau Ordinance (XVIH of 1999)‑----‑9(b)Criminal Procedure Code (V of 1898), S.497 ‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Bail‑‑‑After the amendment in the National Accountability Bureau Ordinance, 1999 the jurisdiction of the Accountability Court for grant of bail remained ousted whereas after the omission of the words "including the High Court" the High Court became vested with jurisdiction to grant bail in National Accountability Bureau cases under Art. 199 of the Constitution.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 rel.

(b) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑‑‑‑‑Ss. 10 & 16‑‑‑Criminal Procedure Code (V of 1898), S.497‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bail‑‑‑Case against accused was to be disposed of within 30 days under the law by the Trial Court, but his trial had not been concluded even in nine months‑‑‑Accused was in custody for the last about 27 months‑‑‑Both the parties had been taking adjournments and were responsible for delay in disposal of the case‑‑Inordinate delay in disposal of the trial was a good ground re-cognised by Supreme Court holding the same to be abuse of process of the Court and treating it as sufficient ground for grant of bail‑‑‑Sufficient documentary evidence was also available on record to show that the accused was suffering from different diseases for which he remained under specialist's treatment in various hospitals from time to time‑‑‑Heart disease coupled with unstable hypertension might endanger the life of accused in jail and on medical ground too he was entitled to be released on bail‑‑‑Petition for leave to appeal was consequently converted into appeal and was allowed and the accused was released on bail.

Anwar Saifullah Khan v. The State‑2001 SCMR 1040 and Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 ref.

Sh. Ziaullah, Senior Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record (absent) for Petitioner.

Javed Shaukat Mtilik, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for the State.

Date of hearing: 26th March, 2002.

PLD 2002 SUPREME COURT 553 #

P L D 2002 Supreme Court 553

Present: Qazi Muhammad Faroog, Abdul Hameed Dogar acrd Tanvir Ahmad Khan, JJ

FARID‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 161 of 1999, decided on 29th March, 2002.

(On appeal from the judgment dated 24‑9‑1997 of the Lahore High Court, Multan Bench, passed in Crl. Appeal No.307 of 1993 and Murder Reference No.289 of 1993).

(a) Penal Code (XLV of 1860)‑‑‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to accused by Supreme Court to consider the quantum of sentence in the light of the facts and circumstances of the case.

(b) Penal Code (XLV of 1860).‑----Ss. 302/34 & 100‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 121‑‑Burden of proof‑‑‑Where an accused raises plea of self‑defence of his person or property and wants to bring his case within the ambit of any of the Exceptions of S.100, P.P.C. then onus to prove the same lies upon him‑‑Even according to Art. 121 of the Qanun‑e‑Shahadat, 1984, the burden to prove the existence of circumstances bringing the case within any of general Exceptions in Pakistan Penal Code or within any special Exception or proviso contained in any other part of the said Code or any law defining the offence, lies upon the accused.

(c) Penal Code (XLV of 1860)‑‑‑‑‑‑S. 302/34‑‑‑Sentence, propriety of‑‑‑Accused had failed to bring on record that the complainant party was armed with deadly weapons such as fire‑arms, knife or even a stick or that they had acted in such a manner which could lead to believe that the accused party was being attacked and they were left with no option but to retaliate in self‑defence‑‑‑Plea that the complainant party including the deceased, all unarmed, had attempted to assault the accused party, who were equipped with deadly weapons like 7 nun Rifle, .12 bore guns and Sotas, did not appeal to a prudent mind to be true and trustworthy‑‑‑Had the complainant party any intention to attack, they would have come armed and had at least caused some injuries to the accused side‑‑‑Non‑mention of even a small scratch on any one from the accused side, falsifies their version of having acted in the right of selfdefence of their property ‑‑‑Accused irrespective of the above position had failed to establish that the complainant party had played any overt act to dispossess him from the land, rather in his statement under S.342. Cr_P_C. he had taken a divergent stand‑‑‑Prosecution version based on unimpeachable and tangible evidence was trustworthy, whereas the accused had not proved the version of right of self‑defence‑‑‑No mitigating circumstance being available to commute the death sentence the appeal was dismissed.

(d) Criminal trial‑‑‑‑‑‑‑ Doctrine, of juxtaposition‑‑‑Case of two versions, one put forth by accused and the other by prosecution‑‑‑Doctrine of juxtaposition would apply to such case.

Zafar lqbal Chaudhry, Advocate Supreme Court for Appellant.

Ch. Muhammad Ikram, Advocate Supreme Court for the State.

Date of hearing: 29th March, 2002.

PLD 2002 SUPREME COURT 558 #

P L D 2002 Supreme Court 558

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwan Das and Sardar Muhammad Raza Khan, JJ

MUHAMMAD SALEEM‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.436 of 2000, decided on 4th April, 2002.

(On appeal from judgment of Lahore High Court, Bahawalpur Bench, Bahawalpur dated 20‑11‑1998 passed in Criminal Appeal No.71 of 1995/BWP).

(a) Penal Code (XLV of 1860)‑‑‑‑‑‑‑S. 302(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Leave to appeal was granted by Supreme Court to accused to examine the question of quantum of sentence.

(b) Penal Code (XLV of 1860)‑‑‑‑S. 302(b)‑‑‑Appraisal of evidence‑‑‑Active and specific role of firing at the deceased after due preparation and premeditation was attributed to accused and it was hard to believe that he had acted under grave or sudden provocation‑‑‑Suspicion of illicit liaison between the deceased and the aunt of the accused had been amicably settled about 2/3 months before the occurrence by the "Punchayat" and there was hardly any immediate cause prompting the accused to do away with the life of an innocent person‑‑‑Said suspicion for all intents and purposes was a past and closed issue‑‑‑Accused having followed the deceased duly equipped with a deadly weapon and hitting at him in a pre‑planned manner, could not be said to have acted under heat of passion by completely losing control over his sentiments‑‑‑Facts and circumstances of the case manifestly showed that it was a deliberate, intentional' and preconcerted move on the part of the accused to find out an opportunity to eliminate the deceased in order to satisfy his so‑called honour, false ego and prestige without any legal or moral justification‑‑‑Admittedly the said aunt of the accused was not residing with him and he did not notice the deceased in her company in an objectionable position‑‑‑Accused had neither acted under grave nor sudden provocation and no such plea was' advanced by him after his arrest or at the trial‑‑‑Not a single question was even suggested to any of the two ocular witnesses in this behalf which had manifestly reflected upon the hollowness of his afterthought plea‑‑Prosecution had no motive to charge the accused falsely‑‑‑Defence plea raised on behalf of the accused on the face of it was absurd, unnatural and afterthought having been cooked up in order to save him from the clutches of Qisas‑‑‑Nobody had the legal or moral right to take the life of a human being in the disguise of "Ghairat"‑‑‑Conviction and sentence of death had been rightly and lawfully recorded against the accused by way of "Ta' zir" which did not admit of any interference by Supreme Court‑‑‑Appeal was dismissed accordingly.

Muhammad Afzal v. State 1987 SCMR 1864; Abdul Aziz v. State 1994 SCMR 35; Ghulam Hussain v. State PLD 1994 SC 31; Shamoon v. State 1995 SCMR 1377; Shera v. State 2000 PCr.IJ 139; Nazir v. State 2000 PCr.LJ 175; State v. Muhammad Hanif 1992 SCMR 2047; Farman Ali v. State 1992 SCMR 2055; Ali Muhammad v. Ali Muhammad PLD 1996 SC 274; Abdul Haq v. State PLD 1996 SC 1; Noor Muhammad v. State 1999 SCMR 2722; Waris Ali v. State 1999 SCMR 1469; Abdul Salam v. State 2000 SCMR 338; Sarfraz v. State 2000 SCMR 1758; Muhammad Akram Khan v. State PLD 2001 SC 96; Robina Bibi v. State 2001 SCMR 1914 and The State v. Farman Hussain PLD 1995 SC I ref.

(c) Penal Code (XLV of 1860)‑‑‑‑‑S. 302‑‑‑Provocation‑‑‑Concept‑‑‑Provocation in law means more than a provocation incident‑‑‑All provocations will not reduce the crime of murder to manslaughter‑‑‑Provocation to have such result must be such as to temporarily deprive the person provoked of the power of self‑control as a result of which he commits the unlawful act which causes death‑‑‑While rciding such question regard must be had to the nature of the act by which !,e offender causes death, to the time which elapsed between the provocation :rd the act which caused death, to the offender's conduct during that [pte 565) and to all other circumstances tending to show the state of his mind

(d) Precedents‑‑‑‑‑Every judgment in a criminal case must be read in the context of its peculiar facts and it cannot, be applied in each case.

(e) Penal Code 1XLV of 1860)‑‑‑‑‑‑‑S. 302‑‑‑Punishment of Qatl‑i‑Amad‑‑‑Courts 'should realize 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‑‑‑Approach of the Court should be dynamic and if it is satisfied that the offence has been committed in the manner as alleged by the prosecution, the technicalities should be overlooked without causing any miscarriage of justice.

The State v. Farman Hussain PLD 1995 SC 1 ref.

(f) Penal Code (XLV of 1860)‑‑‑‑‑‑‑S. 302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 17‑‑‑Pum nt for Qatl‑iAmd‑‑‑Guidelines‑‑‑Where prosecution has established the guilt of the accused by satisfactory and reliable evidence on the touchstone of Tazkiya‑eShuhood, normal penalty for Qatl‑i‑Amad is Qisas i.e. penalty of death in which the Court is left with no option‑‑‑If the witnesses do not qualify the standard of competent witnesses as prescribed by Islamic Injunctions, conviction can be recorded under cl. (b) of S.302, P.P.C. by way of Ta'zir, i.e. death or imprisonment for life, depending on the facts and circumstances of each case‑‑‑If the prosecution case is proved up to hilt, normal penalty of death must be awarded, but in cases with extenuating circumstances Court is required to judiciously consider the award of imprisonment for life which is also a sentence for Oatl‑i‑Amad recognized by law as Ta'zir‑‑‑Where the accused is able to demonstrate that he was deprived of his capability of selfcontrol or that he was swayed away by circumstances immediately preceding the act of murder or there was an immediate cause leading to serious provocation, Court may be justified in mitigation of sentence‑‑‑Wider discretion, no doubt, is _ conferred upon the Court, but under all circumstances it must be exercised in a judicious manner and not in an arbitrary manner at the whims of the Court.

(g) Penal Code (XLV of 1860)‑‑‑‑‑‑‑S. 302‑‑‑No,petson has the legal or moral right to take away the life of a human being in the disquise of "Ghairat".

Munir Ahmad Bhatti, Advocate Supreme Court for Appellant.

Ch. Arshad Ali, Advocate Supreme Court for the State.

Haji [raiser Muhammad Shaffi, Sheikh Masood Akhtar, Advocateon‑Record for the Complainant.

Date of hearing: 4th April, 2002.

PLD 2002 SUPREME COURT 567 #

P L D 2002 Supreme Court 567

Present: Nazim Hussain Siddiqui and Sardar Muhammad Raza, JJ

GHAZANFAR ABBAS ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Jail Petition No. 160 of 2001, decided on 15th April, 2002.

(On appeal from the judgment dated‑2‑8‑2001 of the Lahore High Court, Multan Bench, Mutlan in Criminal Appeal No.34 of 1997 and Murder Reference No.24 of 1999).

Penal Code (XLV of 1860)‑‑‑‑‑‑‑Ss. 302, 324 & 449‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑F.I.R. was lodged at the earliest possible time without any concoction and de'liberation‑‑‑Accused remained absconded for six days‑‑‑Pistol recovered from body search of accused at the time 'of his arrest had matched with the crime empties recox erred from the spot‑‑‑Ocular version was supported by medical evidence‑‑‑Number of injuries corresponded to the number of empties recovered from the spot in addition to an empty magazine of pistol‑‑Eye‑witnesses were natural witnesses of the occurrence and their testimony was worthy of credence‑‑‑Accused being a neighbour of the complainant was known to the family and he could be easily identified in the light of the bulb from such a close distance‑‑‑Motive was available to accused to commit the offence‑‑‑Courts below had rightly appreciated the direct as well as the circumstantial evidence on record‑‑‑Accused had come out to exterminate the whole family and his desperate act and a blatant violation of law could not be justified on the plea of unbridled sense of honour‑‑‑No mitigating circumstance existed in favour of accused‑‑‑Convictions and sentences of accused were upheld in circumstances and leave to appeal was refused to him accordingly.

Syed Ali Hassan Gillani, Advocate Supreme Court for Petitioner. Nemo for the State.

Date of hearing: 15th April, 2002.

PLD 2002 SUPREME COURT 572 #

P L D 2002 Supreme Court 572

Presenr: Iftikhar Muhammad Chaudhry, Rana Bhagwanda:s and Sardar Muhammad Rata Khan, JJ

Ch. TANVEER KHAN‑‑‑Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and others‑-‑Respondents

Civil Petition No.56 of 2002, decided on 3rd April, 2002.

(On appeal from the judgment/order dated 26‑11‑2001, passed by Lahore High Court, Lahore in W. P. No. 15969 of 2001).

(a) Criminal Procedure Code (V of 1898)----‑Ss. 403. 236 & 237‑‑‑Words "same offence" as used in S.403(i), Cr.P.C. ‑‑‑Significance‑‑‑Persons once convicted or acquitted not to be tried for the same offence‑‑‑Law givers, in order to attract the provisions of S‑4o3; Cr.P.C., have laid stress on the words "same offence" for the purpose Of debarring second trial of an accused person, who has been once convicted acquitted from an offence charged against him‑‑‑Apart from the offence in which the accused may have already been tried and convicted or acquitted at the previous trial, the protection contained in subsection (1) of S.403. Cr.P.C. extends to an offence for which a charge different from the one made against tint accused at the pre, ious trial might have been made on the same facts under S.236, Cr.P.C and also in respect bf an offence for which the right have teen coavictcd at the previous trial under S.237, Cr.P.C., but the protection clearly does not extend to those facts not at all alleged at the previous trial.

(b) Criminal Procedure Code (V of 1898)‑‑‑‑‑S.497‑‑‑Bail‑‑‑Assessment of evidence‑‑‑Discussion in depth on law as well as factual points at the stage of considering an application for bail under S.497, Cr.P.C. is not advisable because it tray cause prejudice the case of either of the parties at the time of trial.

(c) Criminal Procedure Code (V of 1898)‑‑‑‑‑‑Ss. 497 & 403(1)‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), Ss.9/10‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bail‑‑Aceused had made out an arguable case to attract the provisions of S:403(1), Cr.P.C. because in respect of the same charges embodied in the previous reference he had already been acquitted, therefore, for the same offence basing on same evidence as well as facts, trial would be subject to final consideration by the Trial Court on the point whether for the second time he could be tried and sentenced or not in the present reference‑‑‑Allegations against the accused for possessing the properties more than his actual share or taking over possession of the properties either forcibly from their actual owners or purchasing them at a low price and thereby making huge profit by disposing them of subsequently, were required to be proved by means of cogent and convincing evidence at the trial‑‑‑Allegation of. Spending considerable motley by the accused on his election was nor based on strong evidence because such charge merely depended on the estimation of the Investigating Officer who had filed the challan against him‑‑‑Accused could not be kept in custody as a punishment particularly when the Court w; convinced that the material produced before it was not sufficient to involve him in the commission of the offence, unless by conducting further probe. Incriminating evidence was collected and placed on record‑‑‑Petition for leave to appeal was consequently converted into appeal which was allowed and the accused was released on bail accordingly.

Muhammad Ikram and another v. The State PLD 1965 (W.P.) Lah. 461; ILR 1923 All. 485; AIR 1934 Mad. 311; PLD 1963 Dacca 92; PLD 1999 Kar. 336; PLD 1988 SC 621; PLD 1991 SC 412 and 2001 SCMR 1040 ref.

(d) Criminal Procedure Code (V of 1898)‑‑‑‑‑‑‑S. 497‑‑‑Bail‑‑‑Practice and procedure‑‑‑Prosecution in order to make out a case for refusal of bail to an accused is primarily supposed to place on record material on basis of which he is believed to be involved in a non-bailable offence, but in absence of such material the Court for. the purpose of releasing the accused on bail, instead of dilating upon the facts of the case in details, can dispose of the matter by holding that his detention is unjustified or unreasonable until such time when on further probe either by the Investigating Agency or the Court seized of the matter, some additional incriminating material is collected against him to justify rejection of his bail.

Wasim Sajjad, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Raja Muhammad Bashir, Prosecutor‑General (NAB) and M.S. Khattak, Advocate‑on‑Record for Respondents.

Date of hearing: 1st April, 2002.

PLD 2002 SUPREME COURT 581 #

P L D 2002 Supreme Court 581

Present. Nazim Hussain Siddiqui and Javed Iqbal, JJ

KHUSHI MUHAMMAD ---Appellant

versus

LIAQUAT ALI represented by Muhammad Irshad and others---Respondents

Civil Appeal No. 1488 of 1995, decided on 27th March, 2002.

(On appeal from the judgment dated 11-6-1995 of the Lahore High Court, Lahore, passed in R.S.A. No. 156 of 1973).

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

----S. 100---Second appeal---Concurrent findings of fact---No bar as to reversal of such findings had been enumerated in S.100, C.P.C.---Such findings could be reversed in case of non-reading and misreading of evidence.

Durga Chowdhrani v. Jawahir Singh Chowdhry ILR 18 Cal. 23; Ram Gopal and another v. Shams Khatoon and others ILR 20 Cal: 93; Ravi Veraraghavalu and others v. B. Venkata Narasima Naidu AIR 1914 PC 87; Venkata Kumara Mahipati Suryarao Bahadur Garu v. Secretary of State AIR 1928 PC 152; Ramji Patel v. Rao Kishore Singh AIR 1929 PC 190; Midnapur Zamindari Co. Ltd. v. Secretary of State AIR 1929 PC 286; Abdul Majid and others v. Khalil Ahmad PLD 1955 FC 38; Karamat Ali and another v. Muhammad Younus Haji and bthers PLD 1963 SC 191; Pathana v. Mst. Wasai and another PLD 1965 SC 134; Deity Pattabhiramaswamy v. S. Hanymayya and others AIR 1959 SC 57 and Nazar Muhammad v. Shahzada Begum PLD 1974 SC 22 ref.

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

----Art. 144---Adverse possession---Person asserting ownership over a property by purchase would not be legally justified at the same time to say that his occupation was hostile or adverse as against its real, owner--Logic behind was that a person could not claim both hostile and adverse possession over a property, which he held in his own right.

Abdul Majeed v. Muhammad Subhan 1999 SCMR 1245; Khuda Bakhsh v. Mureed 1999 SCMR 996; Ghulam Qadir v. Ahmed Yar PLD 1990 SC 1049 and Mirza Ghulam Hussain v. Ch. Iqbal Ahmad PLD 1991 SC 290 ref.

----Art. 144---Adverse possession---Pleas of adverse possession and title by way of gift being contradictory were irreconcilable.

(d) Gift term

----Gift---Delivery of possession in a gift is as necessary as in a sale.

Shamshad Ali Shah v. Hassan Shah PLD 1964 SC 143; Hedaya, Vol. III, Second Edn., p.482; Amir Ali's Muhammadan Law, Vol. I, Chap.V, Baillie's Digest of Muhammadan Law, Part 2, Second Edn., pp12O3, 204; Ramchandra Jivaji Kanago and another v. Laxman Shrinivas Naik and another AIR 1945 PC 54; Jamma-ush-Shittat, Sharaya-ul-Islam, Ghulam Hassan and others v. Sarfaraz Khan and others PLD 1956 SC (Pak.) 309 and Sadik Hussain Khan v. Hashim Ali Khan LR 43 IA 212 ref.

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

----S. 42---Contract Act (IX of 1872), S.19---Limitation Act (IX of 1908), Art. 144---Civil Procedure Code (V of 1908), S.100---Constitution of Pakistan (1973), Art.185(2)(d)---Suit for declaration---Plaintiff challenged gift executed by his mother in respect of her entire land in favour of defendant (her nephew) on the ground of fraud and misrepresentation contending that she being a "Pardanashin lady" could not manage her land, but defendant was managing her land and he got a gift document executed in his favour pretending the same to be a document for management of land--Trial Court as well as Appellate Court dismissed the suit, but High Court in second appeal decreed the suit---Validity---Undisputed position emerging from statements of witnesses was that disputed land was located in the village, where defendant was residing and donor was not residing; that disputed land was being looked after by defendant, who had obtained the same on contract (Theka) from donor; that defendant after institution of suit had made serious attempts to get the matter compromised and offered one Murabba of land for withdrawal of suit; and that negotiation for compromise had taken place in presence of named persons=--All said witnesses had supported each other on all material points and they stood firm to the test of cross-examination and nothing beneficial could be extracted froth them-=Even a remote suggestion had not been made to said witnesses that defendant as donee was owner of the land---No legal justification existed to discard such evidence---Though evidence of said witnesses could not be discussed by High Court at length, but the same would have no substantial bearing on merits of the case as the conclusion derived by means of impugned judgment was free from any infirmity---Statement of defendant's witness that gift deed had been executed at the behest of mother of plaintiff with the consent of plaintiff was not believable as no sourceless person like the plaintiff would give his consent to his mother' for donating entire land in favour of her nephew (defendant)---Had consent of plaintiff been obtained, then he would have signed the gift deed, which would have been a solid proof for its execution, genuineness and authenticity whereof could not be challenged---If gift was executed with consent of plaintiff, then what had prompted him to file the suit, which was indicative of the fact that plaintiff was not aware about the gift-deed and was not a consenting party---Mother (donor) could not have deprived the plaintiff (her son), when there was nothing on record to show that they were not on good terms or plaintiff was disobedient--Contents of gift-deed had never been read to executants thereof---Gift-deed was not valid one and its authenticity was not above board---Dishonest omissions in statement of defendant's witness, also appeared to be self contradictory---In view of defendant's assertion that disputed land had been transferred by means of a valid gift, there was absolutely no lawful justification to take the plea of adverse possession and the only irresistible conclusion of which would be that no such gift-deed had ever been executed--Neither any gift-deed whatsoever had been executed by mother of plaintiff nor conscious and unequivocal possession of land had been handed over to defendant as he could not adduce any convincing evidence to that regard--Defendant had failed to prove the execution of gift-deed by producing credible evidence---Trial Court and Appellate Court had failed to examine the - evidence on record in its true perspective---Supreme Court dismissed the appeal in circumstances.

Muhammad Ashraf v. Bahadur Khan 1989 SCMR 1390 ref.

Gul Zarin Kiani, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record (absent) for Appellant.

Ch. M. Anwar Bhinder, Advocate Supreme Court and Mehmoodtl Islam, Advocate-on-Record (absent) for Respondents.

Date of hearing: 27th March, 2002.

PLD 2002 SUPREME COURT 590 #

P L D 2002 Supreme Court 590

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

Hakim MUMTAZ AHMED and another---Petitioners

versus

THE STATE---Respondent

Criminal Petitions Nos. 236 and 669-L of 2001, decided on 17th April, 2002.

(On appeal from the judgment/order dated 16-7-2001 passed by Lahore High Court, Lahore, in Criminal Miscellaneous No.6066/B of 2000).

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

----Ss. 344, 167 & 173---Detention of accused in police custody if challan not filed in terms of S.173, Cr.P.C.---Effect---Police Officer as per S.344, Cr.P.C. is duty bound to furnish justification of detention of accused in custody if challan under S.173, Cr.P.C. has not been filed and trial has not commenced, otherwise in absence of report of a police officer or challan, detention of the accused would be unjustified and against the provisions of law.

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

----Ss. 173 & 167----Investigating Agency must strictly adhere to the provisions of S.173(1), Cr.P.C.---Notwithstanding the fact that before or after completion of investigation period prescribed under S.167, Cr.P.C., if it is not possible to submit final report, the Investigating Agency should strictly adhere to the provision of S.173(1), Cr.P.C. and must submit interim challan through Public Prosecutor for trial and the accused arrested in the case should not be kept in custody for indefinite period without any legal justification.

Mazhar Hussain v. Ishtiaq Hussain and another PLD 1990 Lah. 249; Aftab Ahmad v. Hasan Arshad and 10 others PLD 1987 SC 13; Mulazim Hussain v. S.H.O., Police Station Shorkot, District Jhang and 2 others 1995 PCr.LJ 440 and Muhammad Jamil v. S.H.O., Police Station Ahmadpur, District Sheikhupura 1997 MLD 2094 ref.

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Control of Narcotic Substances Act (XXV of 1997), S.9--Constitution of Pakistan (1973), Art. 185(3)---Bail---Offences with which the accused was charged did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused had remained in jail for about one year and the case had not proceeded so far and even the charge had not been framed---Record did not show that the accused was likely to abscond, tamper with prosecution evidence or repeat the offence after his release on bail---Accused was not a previous convict---Delay in receipt of Chemical Examiner's Report of the contraband by itself was not a bar to the grant of bail when reasonable grounds exited for believing that the accused was not connected with the commission of the offence---Non-mention by the counsel of accused while filing bail application before High Court about filing of another application for bail before the Trial Court, would not itself be a ground to penalize the accused for the fault committed by his counsel in case the accused had been found entitled to grant of bail---Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused---Allegations against accused, thus, needed further inquiry---Petition for leave to appeal was converted into appeal and allowed in circumstances and interim bail already granted to accused was confirmed accordingly.

Mazhar Hussain v. Ishtiaq Hussain and another PLD 1990 Lah. 249; Aftab Ahmad v. Hasan Arshad and 10 others PLD 1987 SC 13 Mulazim Hussain v. S.H.O., Police Station Shorkot, District Jhang and 2 others 1995 PCr.LJ 440; Muhammad Jamil v. S.H.O., Police Station Ahmadpur, District Sheikhupura 1997 MLD 2094; Aamir v. The State PLD 1972 SC 227; Muhammad lqbal alias Bala v. The State 1989 PCr.LJ 1334; Mst. Fehmida v. The State 1997 SCMR 947; Liaqat Ali v. The State 1998 PCr.LJ 1444; Muzaffar Shah v. The State 1998 PCr.LJ 1540; Aslam alias Ashraf v. The State 1999 MLD 474; Rajwali v. The State 1998 PCr.LJ 664; 1981 PCr.LJ 393; PLD 1992 Quetta 67; PLD 1963 SC 1; PLD 1990 SC 1092; IM SCMR 485 and Imtiaz Ahmad v. The State PLD 1997 SC 545 ref.

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

----Ss. 497(1), 173(1) & 344---Bail---Non-submission of challan under S.173(1), Cr.P.C. or commencement of trial under S.344, Cr.P.C. per se would not constitute a ground for grant of bail to an accused under S.497(1), Cr.P.C. particularly in the matters where accused is involved in a heinous crime entailing punishment of imprisonment for life.

1981 PCr. LJ 393 and PLD 1992 Quetta 67 ref.

Habib-ul-Wahab-ul-Khairi, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner (in Cr.P. No.236 of 2001).

Najam-ul-Hassan Kazmi, Advocate Supreme Court for Petitioner (in Cr.P. No. 669-L of 2001).

M. Ashraf Khan Tanoli, Advocate-General, Balochistan and Zahid Hussain Bukhari, Advocate Supreme Court (on Court's Notice).

Ch. Dil Muhammad Tarrar, Advocate Supreme Court and Akhtar Hussain, District Attorney for the State.

Date of hearing: 1st February; 2002.

PLD 2002 SUPREME COURT 607 #

P L D 2002 Supreme Court 607

Present: Rana Bhagwandas and Javed 1qbal, JJ

IFTIKHAR through Legal Heirs and others---Petitioners

versus

Capt. KHADIM HUSSAIN through Legal Heirs and others---Respondents .

Civil Petition for Leave to Appeal No.2245 of 2001, decided on 17th April, 2002.

(On appeal from the judgment dated 24-5-2001 passed by the Lahore High Court, Rawalpindi Bench in R.S.A. No.31 of 1986).

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

----S. 100---Second appeal---Concurrent findings of fact by the Courts below---Interference by High Court in exercise of jurisdiction under S.100, C.P.C.---Principles---Concurrent findings are not sacrosanct and can be reversed when such findings are based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law or consideration of inadmissible evidence or something so outrageous or so gross as to shock the very basis of justice.

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

----S. 54---Civil Procedure Code (V of 1908), S.100---Constitution of Pakistan (1973), Art.185---Perpetual injunction, grant of---Concurrent findings of fact by the Courts below---Suit for restraining the defendant from interference with the lawful possession of the plaintiff was decreed by the Trial Court and the judgment and decree were affirmed by First Appellate Court---Second appeal against the judgments and decrees passed by the two Courts below was dismissed by the High Court---Validity---Supreme Court does not interfere in the conclusion of High Court which appears to be based upon adequate evidence both oral and documentary and is given in a detailed well-considered judgment and is supported by cogent reasons and careful analysis of relevant material---Defendant failed to point out any misreading or non-reading of evidence nor there was any jurisdictional or legal flaw in the judgment and decree passed by High Court---Factual controversy in the present case had been resolved after proper appreciation of evidence--Judgment and decree passed by High Court in second appeal was free from any illegality or infirmity and the same did not warrant any interference--Leave to appeal was refused.

Khair Din v. Qudrat Ullah 1986 SCMR 763; Siraj Din v. Naseeruddin 1977 SCMR 511; Jalal v. State 1972 SCMR 273 and Md. Anwarullah Mazumdar v. Tamina Bibi 1971 SCMR 94 ref.

----Art. 185(3)---Petition for leave to appeal---Re-appraisal of evidence--Principles---Supreme Court cannot undertake the task of re-appraisal of evidence unless a substantial departure from settled principles concerning appreciation of evidence has been made---Where the Court of first instance and the Court of appeal arrive at concurrent findings of fact after scrutinizing the evidence Supreme Court does not interfere in such findings save in most exceptional circumstances.

Abdul Majid v. State 1971 SCMR 31; British India Steam Navigation Co. Ltd. v. Abdul Razak-Abdui Kader PLO 1967 SC 68; Shamshad Ali Shah v. Hassan Shah PLO 1964 SC 143; Sarfaraz Ali Khan v. Crown PLD 1951 FC 41; Muhammad Sharif v. Abdul Majid 1986 SCMR 190 and Sadiq Jan v. Muhammad Rashid 1985 SCMR 860 ref.

Altaf Ellahi Sheikh, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 17th April, 2002.

PLD 2002 SUPREME COURT 610 #

P L D 2002 Supreme Court 610

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

THE STATE through Collector of Customs, Dry Port Sambrial, Sialkot‑‑‑Petitioner.

versus

ALI RAZA (RAZA ALI) and others‑‑‑Respondents

Civil Petitions for Leave to Appeal Nos.3125‑L and 3131‑L to 3133‑L of 2000, decided on 18th April, 2002.

(On appeal from the judgments dated 16‑10‑2000 in W.Ps. Nos.20435, 19502, 20442 and 20434 of 2000, passed. by the Lahore High Court, Lahore).

Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 156(1)/8/14 ‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9‑‑‑Criminal Procedure Code (V of 1898), S.403‑‑‑Constitution of Pakistan (1973), Arts.199, 13 & 185(3)‑‑‑Constitutional petition before High Court‑‑‑Double trial‑‑‑Commission of same offence under two different statutes‑‑‑Protection of S.403 of the Criminal Procedure Code, 1898‑‑Applic,ability‑‑‑Accused was charged under S.156(1)/8/14 of the Customs Act, 1969 as well as under S.9 of the Control of Narcotic Substances Act, 1997‑‑‑Accused claimed protection of S.403, Cr.P.C. and High Court in exercise of Constitutional jurisdiction quashed the proceedings under 5.156 of the Customs Act, 1969‑‑‑Federal Government has declared that bringing in or taking out from Pakistan Narcotic or drugs was prohibited under S.156 of the Customs Act, 1969‑‑‑Punishment for contravention of Ss.6, 7 & 8 of the Control of Narcotic Substances Act, 1997, was provided in S.9 of the said Act‑‑‑Contention of the Authorities was that violation of both the provisions of law simultaneously would not attract the protection of S.403 of Cr.P.C. on the principle that the accused had committed the same offence‑‑Validity‑‑‑Violation of both the provisions of law were different and distinct from each other, therefore, separate trial of accused under both the provisions was not prohibited‑‑‑High Court had quashed the proceedings contrary to the law laid down by Supreme Court‑‑‑Leave to appeal was granted by Supreme Court in circumstances.

Sabir Aziz v. Sessions Judge, Lahore with Powers of Special Judge Anti‑Narcotics, Lahore and another 2000 PCr.LJ 204 distinguished.

Jamshed Ali v. The State 1988 PCr.LJ 881; State v. Anwar Khattak and others PLD 1990 FSC 62; Muhammad Ashraf and others v. The State 1995 SCMR 626; Sakhi Dost Jan v. State PLD 2000 Quetta 26; State through Collector of Customs, Customs House, Lahore v. Nasim Ahmad Butt and others 2001 SCMR 1083 rel.

K. M. Virk, Advocate Supreme Court for the State.

Nemo for Respondents.

Date of hearing: 18th April, 2002.

PLD 2002 SUPREME COURT 615 #

P L D 2002 Supreme Court 615

Present: Rana Bhagwandas and Javed Iqbal, JJ

GHULAM AHMAD CHAUDHRY---Petitioner

versus

AKBAR HUSSAIN through Legal Heirs and another---Respondents

Civil Petition for Leave to Appeal No.2391 of 2001, decided on 18th April, 2002._

(On apppeal from judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi dated 7-6-2001 passed in R.F.A. No.27 of 1987).

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

----O. I, R.10(2)---Adding of parties ---Jurisdiciton of Court---Wide judicial discretion is vested in the Court to add parties at any stage of the suit in whose absence no effective decree can be passed.

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

----O. I, R.9---Misjoinder and non joinder of parties---Effect---Where a necessary party is not impleaded, the decree may not be binding on party.

----O. I, R.10---Necessary party and proper party---Scope---Person against whom no relief is asked for, tray not be a necessary party but he may be a proper party.

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

----O. I, R.10 & S.96---Adding of necessary or proper parties---Appellate jurisdiction of High Court under S.96, C.P.C.---Scope---Once suit has been instituted, parties can be added only with the leave of the Court and not otherwise---Power of adding parties is not a question of initial jurisdiction but of judicial discretion, which has to be exercised having regard to all the facts and circumstances of the case---High Court seized with appeal, arising out of the suit, is fully competent to add or strike out name of any person to the suit for a just, fair and effectual adjudication of the controversy, (e) Civil Procedure Code (V of 1908)

----O. XLI, R.27 & S.96---Additional evidence, recording of ---Jurisdiction of High Court in appeal---Filing of application for recording of additional evidence---Requirement---High Court was fully competent under O.XLI, R.27, C.P.C. to direct additional evidence for a just and proper determination of the issue even without application by the parties---Power to allow additional evidence was always discretionary in nature and the exercise of discretion would depend on the facts of each case and as a general rule parties to a lis were not entitled to produce additional evidence but if the Appellate Court required any documents to be produced or any witness to be examined to pronounce judgment or for any other substantial cause, it could always do so after recording reason.

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

----O. I, R.10 & O.XLI & Rr.23, 27---Constitution of Pakistan (1973), Art. 185(3)---Impleading of necessary party---Additional evidence, recording of---Remand of case to Trial Court for decision afresh---Jurisdiction of High Court in exercise of appellate jurisdiction---Plaintiff asserted to be the owner of the suit property and in his absence the property was transferred in the name of the vendor claiming to be the son of the plaintiff-defendant purchased the property from the vendor and the same was transferred in the name of the defendant---Plaintiff denied the vendor as his son and filed suit for cancellation of document and recovery 'of possession---Vendor was neither impleaded in the suit nor his statement was recorded as witness--Trial Court dismissed the suit but High Court in exercise of appellate jurisdiction allowed the appeal, impleaded the vendor as a party and remanded the case to the Trial Court and suo motu directed the Trial .Court to record additional evidence---Contention of the defendant was that the High Court should have decided the appeal on the basis of evidence available on record---Validity---Judicial discretion exercised by the High Court as Appellate Court, in the present case, was neither unwarranted nor unjustified when valuable proprietary rights of the plaintiff (who was out of country for a long period) were extinguished without his consent and permission, it was a fit case for exercise of suo motu jurisdiction by the High Court---High Court by remanding the suit did not act arbitrarily or without jurisdiction-- Supreme Court repelled the contention of the defendant and declined to set aside judgment and remand of case for decision afresh---Appeal was disposed of accordingly.

Fazal Jan v. Roshan Dim PLD 1992. SC 811; Evacuee Trust Property Board v. Muhammad Siddique 1995 SCMR 1748 and Zar Wali Shah v. Yousaf Ali Shah 1992 SCMR 1778 ref.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Mushtaq Ahmad Khan and Abdur Rehman Lodhi, Advocates Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 18th April, 2002.

PLD 2002 SUPREME COURT 622 #

P L D 2002 Supreme Court 622

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

NOOR SALAM and others---Appellants

versus

GUL BADSHAH and others---Respondents

Civil Appeal No.692 of 1996, decided on 25th April, 2002.

(On appeal from the judgment dated 8-12-1994 passed by the Peshawar High Court, Peshawar, in Civil Revision No.44 of 1989).

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

----Ss. 44 & 53---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art.185(3)---Change of entries in subsequent settlement record---Pedigree-table entries made in the years 1925-26 were given preference over the entries made in the year 1895-96---Contentions of the defendants was that there was continuous consistent entries right from the year 1895-96 showing two sons of the predecessor-in-interest of the parties as real brothers having their property intact while the third son was shown as separate entity and having mortgaged his property from time to time--Predecessor-in-interest of the plaintiffs was Lambardar, therefore, in the subsequent settlement record without any plausible reason the pedigree-table had been tampered with in order to oust the defendants predecessor-in-interest from the inheritance in the event of termination of limited estate and that older record should have been given preference in the absence of. any plausible and cogent reasons for change in the subsequent record; that the plaintiffs had in their statement clearly admitted that the brother who had been shown as separate entity predeceased the other brother and such admission had been ignored though they being plaintiffs were bound by such statement and had to succeed or fail on their own evidence and not on the weakness of the case of opposite side---Leave to appeal was granted by Supreme Court to consider the contentions so raised.

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

----S. 53---Specific Relief Act (I of 1877), S.42---Entries in record ofrights---Pedigree-table, wrong entry---Pedigree-table prepared in year 1895-96, was substituted in the year 1928-29---Plaintiff having relied on the substituted table prepared in the year 1928-29, filed the present suit--Trial Court dismissed the suit but the Appellate Court allowed the appeal and the suit was decreed---Judgment and decree passed by the Appellate Court was maintained by High Court in exercise of revisional jurisdiction--Authenticity and genuineness of the original pedigree-table went unchallenged---Effect---Such failure amounted to admission of the entry--Where the presumption was rebuttable but the genuineness and authenticity of pedigree-table was neither challenged nor rebutted, the same would be ';,presumed to be true until the contrary was proved---Pedigree-table of 1895-96 being part of record of rights could not be varied merely on the ground that it was substituted with a table prepared later in time as such substitution would have no substantial bearing on validity of the old pedigree-table-- Judgment and decree passed by High Court as well as the Appellate Court were set aside and that of the Trial Court were restored.

Mir Bashi v. Allah Khan 1991 SCMR 2504; Mst. Bhag Bhari and others v. Mst. Bhagan and another PLD 1954 Lah. 365; Allah Dad v. Muhammad Ali and others PLD 1956 Lah. 245; Whadera Allah Diwaya Khan v. The Custodian, Evacuee Property, West Pakistan, Lahore and others PLD 1965 Lah. 535; Ghulam Rasul and others v. Sardar Muhammad Ashraf Khan and others PLD 1955 Rev. (Pb.); 56; Mst. Allah Rakhi v. Murid Hussain Shah and others PLD 1955 BJ 17; Settlement Manual by Sir James M. Douie, 6th Edh.; Dakas Khan . and others v. Ghula Kasim Khan and others (1918) 48 IC 473; Musammat Lali v. Murli Dhar 33 IA 97; 8 Bom. LR 402; 3 ALJ 415; 10 CWN 730; 3 CU 594; 28 A. 488; I MLT 171 (PC); Chhote Khan and others v. Mal Khan and others AIR 1954 SC 575; Raja Rajinder Chand v. Mst. Sukhi and others AIR 1957 SC 286 and Avadh Kishore Dass v. Ram Gopal and others AIR 1979 SC'861 ref.

----Ss. 44, 45 & 52---Entries in record of rights---Presumption of truth-- Pedigree-table---Amendment---Principles---Pedigree-table was not a routine document and no deletion, addition, amendment and insertion could be made without lawful justification and that too on the basis- of concrete evidence proving that the existed entries in the pedigree-table were not correct-- Pedigree-table was a part of 'Record of Rights' and its antiquity would be no ground for its change and pedigree-table prepared later in time could not be given preference---Nature of land, its price, importance and ownership might be changed with the passage of time but the time factor would totally be irrelevant having no bearing whatsoever on inter se relationship of the parties shown in the earlier pedigree-table---Real brothers would remain as such irrespective of the fact whether pedigree-table was old or substituted with new one as a real brother could not be converted into step-brother--Presumption of truth under S.52 of the West Pakistan Land Revenue Act, 1967, was not confined to entries made in record of rights prepared under, the West Pakistan Land Revenue Act, 1967, but also to entries made in record of rights prepared under any Settlement made even before the enactment of the Punjab Land Revenue Act, 1887.

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

----S. 52---Documents carrying presumption of truth---Documents like Misl e-Bandobast or Misl-e-Haqiyat or Bandobast Jamabandi or Shart-Wajib-ul-Arz and Pedigree-table (Shajra Nasab) all carry presumption of trnth under S.52 of the West Pakistan Land Revenue Act. 1967.

Muhammad Khurshid v. Chief Administrator of Auqaf'fLD 1973 Notes 38 at p.50; ' Cornmentary on Land Revenue Act by Om Parkash Aggarwala, 4th Edn., 1956, pp.331-332; Zar Jan v. Najmun Nisa PLD 1969 Pesh. 118; Chuni Lal v. Nanda and others 174 PR 1888; Ishar and others v. Dalip Singh and others, 18 IC 218 and Karamun and others v. Harkishan and others AIR 1935 Lah. 87 ref.

Haji Muhammad Zahir Shah, Advocate Supreme Court and Haji Bashir Ahmad, Advocate-on-Record for Appellants.

Abdul Samad Khan, Advocate-on-Record for Respondents.

Date of hearing: 29th March, 2002.

PLD 2002 SUPREME COURT 630 #

P L D 2002 Supreme Court 630

Present: Munir A. Sheikh, Tanvir Ahmed Khan and Faqir Muhamamd Khokhar, JJ

Col. (Retd.) AYUB ALI RANA---Petitioner

versus

Dr. CARLITE S. PUNE and another---Respondents

Civil Petition No.4092-L of 2001, decided on 21st February, 2002.

(On appeal from the judgment dated 21-11-2001 of the Lahore High Court, Lahore passed in C.R. No. 2214 of 2001).

(a) Civil Procedure Code (V of 1908)--- , ----O. VIII, Rr. 1 & 9---Written statement---Types of---Three types of written statements can be filed by a defendant viz. as of right without any formal permission of the Court (O. VIII, R.1); when it is so required by the Court to file a written statement (O. VIII, Rr. l & 9 .and when under some circumstances it is filed by the leave of the Court (O. VIII, R.9).

Sardar Sakhawatuddin and 3 others v. Muhammad lqbal and 4 others 1987 SCMR 1365 ref.

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

----O. VIII, Rr. 1, 9 & l0---Written statement, non-filing of---Penal consequences---Applicability---Penal consequences of pronouncement of judgment against a defendant would follow when he fails to file written statement when so required by the Court---Such provisions of O.VIII, C:P.C. being penal in nature would have to be strictly construed/applied--Whenever reasonable doubt would arise regarding its interpretation or implementation, the same would have to be resolved in favour of the victim of their application---Requirements of O.VIII, R.10, C.P.C. would have to be established like those of O.XVII, R.3. C.P.C. which are similarly penal in nature.

Saraar Sakhawatuddm and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 ref.

----O. VIII, Rr. 1, 9 & 10---Expression "no further opportunity would be granted by it to file written statement" as used by Court in its order--Effect---Such expression used by the Court was sufficient to disclose its intention that the Court had required the defendant to file written statement.

Azad Hussain v. Haji Muhammad Hussain PLD 1994 SC 874 ref.

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

----O. VIII, Rr. 1, 9 & 10---Expression 'last opportunity to file written statement' or 'no further opportunity would be granted', non-using of such expression by the Trial Court---Effect---Where no such expression was used by the Trial Court, the rules laid down in Hakumat Bibi and Azad Hussain cases reported as PLD 1987 SC 22 and PLD 1994 SC 874, respectively were not attracted in circumstances.

Mst. Hakumat Bibi v. Imam Din and others PLD 1987 SC 22 and Azad Hussain v. Haji Muhammad Hussain PLD 1994 SC 874 distinguished.

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

----O. VIII, Rr. 1, 9 & 10---Written statement, filing of---Object---Trial Court is required under the law to pass such an order keeping in view facts of the case as pleaded in the plaint which should clearly indicate whether the Court requires a written statement so that the controversies arising from the pleadings can be decided effectively and finally.

Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 and The Secretary, Board of Revenue, Punjab, Lahore and another v. Khalid Ahmad Khan 1991 SCMR 2527 ref.

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

----O. VIII, R.10---Written statement, non-filing of---Closing of defence--Discretion of Trial Court---Even if the provisions of O.VIII, R.10, C.P.C. are attracted, the Trial Court is not bound to pass order for closing defence of defendant, for it confers discretion on the Court to pass order as envisaged by O.VIII, R.10, C.P.C.---Whenever the law confers on any Court discretion to make an order, the same has to be exercised on application of judicial mind based on relevant considerations, in just and proper manner to advance the cause of justice and not whimsically and arbitrarily.

(g) Discretion-

---Exercise of discretionary power by Court--Principle---Whenever the law confers on any Court discretion to make an order, the same has to be exercised on application of judicial mind based on relevant considerations, in just and proper manner to advance the cause of justice and not whimsically and arbitrarily.

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

----S. 5---Civil Procedure Code (V of 1908), S.115 & O.VIII, R.10--Constitution of Pakistan (1973), Art.185(3)---Revision---Order without jurisdiction---Condonation of delay---Wrong advice of counsel---Defence of defendant was closed on his failure to file written statement---Such order was assailed before First Appellate Court in exercise of revisional jurisdiction under S.115, C.P.C.---Revision petition after remaining pending for some time was returned to the defendant for lack of pecuniary jurisdiction--Defendant filed the revision before High Court---Delay in filing of the petition was condoned and the same was allowed---Contention of the plaintiff was that the High Court had wrongly condoned the delay---Validity---Mere wrong advice by a counsel in the matter by itself, was not considered as sufficient ground for condonation of delay but each case had to be considered in which question of limitation was raised keeping in view peculiar circumstances of that case---High Court, in the present case, was seized of the revision petition and was exercising jurisdiction under S.115, C.P.C. under which a right had also been conferred on aggrieved person to file revision petition---High Court itself was vested with the power to call for record of any case to satisfy itself whether any order was valid and did not suffer from any irregularity amounting to illegality or was bad for want of jurisdiction---Such aspect of the case had been kept in view while deciding in the present case as to whether the order passed by the Trial Court for closing the defence of the defendant was valid and what was the extent of illegality attached to it---Where the High Court came to the conclusion that in the facts and circumstances of the case, the conditions laid down by the relevant law for applicability of penal provisions of O.VIII, R.10, C.P.C. had not been fulfilled and the order passed by the Trial Court was without jurisdiction; the High Court rightly proceeded to set aside the same by condoning the delay by holding that in such matters, the point of limitation would not stand in the way of Court to do justice ---Condonation of delay by the High Court in the present case was based on valid and relevant considerations so that an order which was without jurisdiction and as such nullity in law might be perpetuated---Supreme Court declined to interfere with the order passed by High Court---Leave to appeal was refused.

Msf. Hakumat Bibi v. Imam Din and others PLD 1987 SC 22 and Azad Hussain v. Haji Muhammad Hussain PLD 1994 SC 874 distinguished.

Sardar Sakhawatuddin and 3 others v. Muhammad lqbal and 4 others 1987 SCMR 1365; The Secretary, Board of Revenue, Punjab, Lahore and another v. Khalid Ahmad Khan 1991 SCMR 2527; Sherin and 4 others v. Fatal Muhammad and 4 others 1995 SCMR 584; Ghulam Ali v. Akbar alias Akoor and another PLD 1991 SC 957 and Mian Aizad Bakhsh v. Sheikh Muhammad Afzal 1985 SCMR 1003 ref.

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

---S. 5---Condonation of delay---"Order without jurisdiction" and "order based upon technical errors"---Distinguished---Difference existed between a case where the Court though vested with jurisdiction to pass an order but while passing the same, some technical error was committed which did not affect the jurisdiction of the Court and the case in which the Court though not vested with jurisdiction and power to pass an, order but it bad passed the same, in the latter case, the higher Court before whom such order was challenged could decide question of condonation of delay keeping in view that the maintenance of such order on the ground of limitation would perpetuate an order which was nullity having been passed by the Court vested with no jurisdiction giving undue advantage to a party deriving benefit thereunder---Delay could be condoned in circumstances.

Syed Haji Abdul Wahid and another v. Sayed Sirajuddin 1998 SCMR 2296 ref.

A.K. Dogar, Advocate Supreme Court and Syed Abut Aasim Jafri Advocate-on-Record. for Petitioner. .

Nemo for Respondents.

Date of hearing: 21st February, 2002.

PLD 2002 SUPREME COURT 643 #

P L D 2002 Supreme Court 643

Present: Javed Iqbal, Tanvir Ahmed Khan and Muhammad Nawaz Abbasi, JJ

SHERA MASIH and another‑--‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.219 of 2001, decided on 2nd May, 2002. '

(On appeal from the judgment of Lahore High Court, Lahore, dated 19‑10‑2000 passed in Criminal Appeal No‑. 125 of 1997 and Murder Reference No.77 of 1997).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(a)/34, 302(b)/34, 324/34 & 337‑F(iii)/34 ‑‑‑ Constitution of Pakistan (1973), Art.185(3)‑‑‑Contentions were that three co‑accused on the same evidence had been acquitted while the accused, had been convicted by the Trial Court on the same set of evidence; that recovery of fire‑arms from the accused could not furnish any corroboration in the event of no crime empty having been secured from the spot, and that report of the Forensic Science Laboratory could not corroborate the ocular testimony qua bloodstained earth‑‑‑Conviction of accused required further consideration in view of the contentions and leave to appeal was granted to accused for reappraisal of evidence.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Principles‑‑‑Evidence of a witness cannot be brushed aside and ruled out of consideration against all accused for mere reasons that one or more accused in the case were found not guilty and were acquitted, rather the Court in such a situation while following the rule of sifting the grain from chaff would fix the responsibility of an accused.

‑‑‑‑S. 302‑‑‑Appraisal of evidence‑‑‑Principles‑‑‑Maxim: "Falsus in uno falsus in omnibus"‑‑‑Applicability‑‑‑Where the witnesses are found false against one accused, their evidence being of doubtful character would not be acceptable qua the remaining accused without independent corroboration, and thus if the evidence of a witness is discarded to the Me t of one accused, the same should not be automatically excluded from consideration qua other accused as the same can still be used against the remaining accused if it is supported by any other evidence of independent character‑‑‑Principle of "falsus in uno falsus in omnibus", therefore, cannot be accepted as a mandatory rule and given preference over the principle of "sifting the grain from the chaff," as by doing so the true spirit of criminal administration of justice shall be defeated.

State v. Mushtaq Ahmed PLD 1973 SC 418; Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Sardar Khan v. State 1998 SCMR 1823; Nazeer Ahmad v. State 1998 SCMR 1768; Piyaro v. State 1998 SCMR 1749; Ahmad Khan v. Nazir Ahmad 1991 SCMR 803; Tawaib Khan v. Abdus Samad v. State 1973 SCMR 21 and Muhammad Nawaz v. State 1969 SCMR 132 ref.

(d) Criminal trial‑‑

‑‑‑‑ Appreciation of evidence‑‑‑Corroboration‑‑‑Principles.

In a case in which it is found that veracity of the eye‑witnesses and direct evidence alone is not enough to satisfy the mind of Court and corroboration from independent source is felt necessary, the ocular evidence should be read together with corroboratory and confirmatory evidence to determine the guilt of a person. However, the corroboration may be sought from direct or circumstantial evidence and it need not amount to confirm the whole story narrated by the witness rather it would be sufficient only in material points under consideration and further the degree of corroboration rests on substantial discretion of the Courts which vary in the facts and circumstances of each case. The corroboration is insisted upon when the evidence is not of such a degree which should be made basis of conviction such as in case of enmity between the parties or the witnesses are interested, related or inimical and or not independent or in a situation in which it is felt that without corroboration conviction only on the basis of ocular account is not safe. The corroboration can even be sought from the suggestion put by defence to the witnesses in cross‑examination and admission of accused which may satisfy the mind of the Court regarding truthfulness of the witnesses as the rule of corroboration being rule of abundant caution is followed only to satisfy the mind of the Court regarding the guild of an accused and it is not an inflexible rule to be followed necessarily in each case in all circumstances. The rule of independent corroboration need not to be insisted, in the cases in which no exaggeration in the statements of witnesses is found and their veracity is not suffering from any apparent defect but in a case in which it is felt necessary it should not be insisted in each and every detail rather due importance should be given to the conclusion drawn by the trial Court as it had the opportunity of watching the demeanors of witnesses to form first hand impression to the truthfulness or otherwise of their evidence.

(e) Criminal trial‑‑

‑‑‑‑ Burden of proof‑‑‑Defence plea of the accused even if is not supported by any evidence direct or circumstantial and is discarded being improbable, still it will not be a circumstance to prove the guilt of an accused and the prosecution has to establish its case by standing‑ on its own legs‑‑‑Admission of an accused regarding his participation in the occurrence, however, can be used by the Court as a confirmatory circumstance.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(a)‑‑‑Admission of accused‑‑‑Admission of occurrence by the accused with a different version is not confession of guilt and the Court without splitting it up can reject or accept the same in toto, but if the admission in part or in full is of the nature which provides support to prosecution case, the same can be used for the purposes of corroboration.

(g) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(a)/34, 302(b)/34, 324/34 & 337‑F(iii)/34‑‑‑Appraisal of evidence‑‑‑Accused had admitted their participation in the occurrence taking the plea of self‑defence which was not supported by any direct or circumstantial evidence and was improbable‑‑‑Merely putting a defence version which was neither reasonably possible nor was spelling out from the evidence on record, was not enough to dislodge the direct evidence of injured eye‑witnesses, specially in the absence of any enmity between the parties‑‑Medical evidence also corroborated the ocular account to the extent of determining the guilt of accused‑‑‑Accused had the motive to attack the complainant party‑‑‑Convictions of accused were maintained in circumstances‑‑‑However, case of both accused was similar in the matter of sentence as the injury attributed to the accused, who was sentenced to death, was not individually found fatal to the life of deceased by the Doctor who conducted post‑mortem on the dead body‑‑‑Appeal of accused was consequently dismissed except that the death sentence of the said accused was reduced to imprisonment for life.

State v. Mushtaq Ahmed PLD 1973 SC 418; Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Sardar Khan v: State 1998 SCMR 1823; Nazeer Ahmad v. State 1998 SCMR 1768; Piyaro v. State 1998 SCMR 1749; Ahmad Khan v. Nazir Ahmad 1991 SCMR 803; Tawaib Khan v. Abdus Samad v. State 1973. SCMR 21 and Muhammad Nawaz v. State 1969 SCMR 132 ref.

(h) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(a)‑‑‑Appreciation of evidence‑‑‑Medical evidence is not independently sufficient source of corroboration to fix the culpability of an accused, but in a case of direct evidence it can always be helpful to identify the role of an accused assigned to him by the eye‑witnesses.

K.M.A. Samdani, Advocate Supreme Court and Walayat Umar, Advocate‑on‑Record (absent).for Appellants.

Ainul Haq Malik, Advocate Supreme Court for the State. .

Date of hearing: 11th March, 2002.

PLD 2002 SUPREME COURT 655 #

P L D 2002 Supreme Court 655

Present: Iftikhar Muhuamnuad Chaudhry and Faqir Muhanmcad Khokhar

AHMAD KHAN and others‑ ‑Petitioners

versus

JEWAN ‑‑‑Respondent

Civil Petition No.933‑L of 1999, decided on 15th May, 2002.

(On appeal froth the judgment/order dated 2‑3‑1999 passed by Lahore High Court, Lahore in R.S.A. No.460 of 1975).

(a) Oaths Act (X of 1873)‑‑

‑‑‑‑Ss. 9, 10 & 11‑‑‑Administration of special oath‑‑‑Procedure‑‑‑Duty of Court‑‑‑Guiding principles‑‑‑Court has to ask for application specifying the nature of the statement which the party making offer of special oath wanted to obtain on oath for decision of the case‑‑‑Other party has to be provided an opportunity to categorically accept or reject the offer being made by the offering party‑‑‑No procedure for recording of statement on special oath has been provided under Ss‑9, 10 & 11 of Oaths Act, 1873, but the Court can lay down its own procedure to ensure that prejudice is not caused to any of the parties depending upon circumstances of each case‑‑‑Supreme Court restrained the Courts from accepting offer of anyone of the parties for decision of the case on oath so promptly because there was every possibility, that may be for the time being, the offer for the decision of the case of special oath was accepted without knowing its consequences but after some time the party may resile from such offer for any cogent reason.

Muhammad Ali v. Maj. Muhammad Aslam and others PLD 1990 SC 841 rel.

(b) Oaths Act (X of 1873)‑‑

‑‑‑‑Ss. 9, 10 & 11‑‑‑Constitution of Pakistan 1973 Art.185 3 ‑‑Administration of special oath‑‑‑Written application, non‑filing of‑‑‑During cross‑examination of the defendant, suggestion was made by the plaintiff: regarding decision of the case on the basis of special oath administered to the elder brother of the defendant‑‑‑Such suggestion was accepted by the defendant and on the basis of the statement of the elder brother of the defendant recorded on special oath, the Trial Court decreed the suit against the defendant‑‑‑Appeal against the judgment and decree passed by the Trial Court was allowed and the Appellate Court remanded the case for decision afresh‑‑‑High Court in exercise of appellate jurisdiction under S.100, C.P.C. maintained the judgment passed by the Lower Appellate Court ‑‑‑Validity‑‑No hard and fast rule existed for accepting or rejecting statement of a person given on oath provided departure from the statement was made on the basis of cogent grounds depending upon case to case‑‑‑Apprehension of the defendant that his brother in collusion with the other side had given the statement on oath was convincing because the same brother had denied the claim of the plaintiffs by filing written statement but after some time that brother had changed his earlier stance‑‑‑Supreme Court pointed out that the Trial Court ought not have accepted the statement of the brother of the defendant made by. him on oath and proceeded to decide the base on merits and declined to interfere with the judgment passed by the High Court‑‑Leave to appeal was refused.

M. Aftab lqbal Chaudhree, Advocate Supreme Court and M. Aslam Chaudhry. Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 15th May, 2002.

PLD 2002 SUPREME COURT 660 #

P L D 2002 Supreme Court 660

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

LAHORE CANTT. COOPERATIVE HOUSING SOCIETY LIMITED---Petitioner

versus

Messrs BUILDERS AND DEVELOPERS (PVT.) LTD and others---Respondents

Civil Petition No.707-L of 1999, decided on 15th May, 2002.

(On appeal from the judgment/order dated 9-2-1999 passed by Lahore High Court; Lahore in R.F.A. No.37 of 1996).

(a) Cooperative Societies Act (VII of 1925)---

----S. 70---Non-issuance of statutory notice---Effect---Suit against a society or its officers in respect of any act touching the business of the society is not competent under S.70 of Cooperative Societies Act, 1925 without issuing two months' notice prior to its institution.

1996 SCMR 1195 ref.

(b) Cooperative Societies Act (VII of 1925)---

----S. 70---Expression "business"---Connotation---Expression "business" has to be interpreted comparatively in a broader sense because ordinarily the word includes all those activities, which are carried out by a particular party to achieve its objects for which it has been incorporated.

----S. 108---Easements Act (V of 1882), S.4---Constitution of Pakistan (1973), Art. 185(3)---Right of easement---Onus to prove---Ownership of property---Dispute was with regard to use of roads and streets in the area of defendant Cooperative Society---Plaintiff developed a housing scheme adjacent to the housing scheme of the defendant---By constructing a wall, the defendant Society obstructed the plaintiff from using its roads and streets for access to the housing scheme built by the plaintiff---Plea raised by the plaintiff was that the roads and streets were the property of the Cantonment Board and the defendant could not obstruct the same---Defendant claimed that the roads and streets were its private property and the plaintiff could not claim right of use of the same---Suit was decreed by the Trial Court in favour of the plaintiff and the judgment was maintained by High Court---Validity--Plaintiff had got its own entity, as such there was heavy burden on it to establish its legal right under Easements Act, 1882, or under any other provision of law to contend that the roads constricted by the defendant situated beyond the boundary wall which existed between both the Societies could be used by the plaintiff as a matter of right and the Trial Court without giving declaration could direct the defendant to demolish the wall---Leave to appeal was granted by Supreme Court to consider this aspect of the case.

Maqbool Sadiq, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioners.

Shahid Hamid, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 15th May, 2002

PLD 2002 SUPREME COURT 667 #

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PLD 2002 SUPREME COURT 677 #

P L D 2002 Supreme Court 677

Present: Iftikhar Muhammad Chaudhry, Khalil‑ul‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

KHAIR DIN‑‑‑Petitioner

versus

Mst. SALAMAN and others‑‑‑Respondents

Civil Petition No. 1044 of 1999, decided on 20th May,'2002

(On appeal from the judgment/order dated 21‑4‑1999 passed by Lahore High Court, Multan Bench, M~Itan in Civil Revision No.236‑D of 1990).

(a) Islamic Law‑‑‑

‑‑‑‑Inheritance‑‑‑Limitation‑‑‑Brother had deprived his sisters fraudulently from the land which they inherited from their father‑‑‑Sisters shall be deemed to be in constructive possession of the property and their rights arising out of inheritance of their father could not be denied on limitation either under Art. 142 or Art. 144, Limitation Act, 1908.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 fol.

(b) Islamic Law‑-

‑‑‑‑Inheritance‑‑‑Possession‑‑‑Heir in possession to be considered in constructive possession of the property on behalf of all the heirs in spite of his exclusive possession.

Hyuder Khan v. Chanda Khan 501 IC 691 quoted.

‑‑‑‑ No benefit can be derived by a person claiming proprietary rights in a particular property based on fraudulent transaction‑‑‑Fraud if established on record, is sufficient to vitiate most solemn proceedings.

Ghias‑ud‑Din v. Iqbal Ahmad and 5 others PLD 1975 Lah. 780; La l and another v. Muhammad Ibrahim 1993 SCMR 710; Government of Sindh through Chief Secretary and others v. Khalil Ahmad and others 1994 SCMR 782; John Paul v. Irshad Ali and others PLD 1997 Kar. 267; Mst. Sarwari Begum v. Atta‑ur‑Rehman 1997 CLC 1500 and Muhammad Yaqoob v. The State 1997 PCr.LJ 1979 ref.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and Syed Abut Aasim Jafri; Advocate‑on‑Record for Petitioner.

Abdur Rashid Qureshi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondents.

Date of hearing: 20th May, 2002.

PLD 2002 SUPREME COURT 681 #

P L D 2002 Supreme Court 681

Present: Iftikhar Muhammad Chaudhry Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MERAJ DIN and another---Petitioners

versus

ADDITIONAL COMMISSIONER (R)/SETTLEMENT COMMISSIONER, LAHORE and others---Respondents

Civil Petition No. 2122-L of 1998, decided on 21st May, 2002.

(On appeal from the judgment/order dated 18-11-1998 passed by Lahore High Court, Lahore, in W. P. No.51-R of 1995).

Displaced Persons (Land Settlement) Act (XLVII of 1958)--

----Ss.25, 10 & 11---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.3(2)---Transfer of Property Act (IV of 1882), S.41--Specific Relief Act (1 of 1877), S.42---Constitution of Pakistan (1973), Art. 185(3)---Evacuee land was initially allotted to one; "M" against his claim, which on an application filed under Ss.10/11, Displaced Persons (Land Settlement) Act, 1958 was found to have been made fraudulently against bogus claim and was cancelled by Deputy Commissioner exercising powers of Additional Settlement Commissioner (L)/Chief Settlement Commissioner which order attained finality because it was not interfered by Chief Settlement Commissioner in revision proceedings instituted on behalf of the petitioners---Meanwhile heirs of allottee "M" sold the said land in favour of: "K" vide registered deed who in turn sold the same to "B" and. his brother (respondents) and on the strength of conveyance so obtained by "B" and others (respondents) mutation was also effected in their favour---"B" filed a civil suit for declaration in the Civil Court wherein declaration was sought to the effect that he and his co-sharers were bona fide purchasers of the land---Civil Court passed ex parte decree granting relief as prayed for--Petitioners, however, claimed that they were in cultivating possession of the land in dispute, thereafter and after cancellation of its allotment from the name of "M" land should have been allotted to them and in pursuance of such claim the Settlement Authorities were about .to concede their request when in the meanwhile they learnt that respondents (B and others) had obtained decree from the Civil Court; petitioners had filed an application under S.12(2), C.P.C. for setting aside the ex parte decree on the averments that it had been obtained fraudulently without impleading them as party, as such, being void ab initio, was of no legal effect which was dismissed anti revision also met the same fate; Board of Revenue on appeal ordered the land to be resumed with direction to consider its sale to the petitioners after cancellation of the decree of Civil Court---Respondents (B and others) filed constitutional petition against order of the Board of Revenue and High Court remanded the case to Chief Settlement Commissioner who dismissed the application of the petitioners which order was assailed by a Constitutional. petition by the petitioners before High Court which was dismissed---Leave to appeal was granted by the Supreme Court to consider as to what would be the effect of Civil Court decree obtained by the respondents ("B" and others) in view of bar contained under S.25, Displaced Persons (Land Settlement) Act, 1958 and the principles enunciated by superior Courts in that behalf; as to whether respondents ("B" and others) had obtained ex parte decree from the Civil Court by concealing facts namely that the evacuee land, subject-matter of proceedings was found to have been transferred in the name of "M" fraudulently/by misrepresentation and the Settlement Commissioner cancelled allotment from his name and that order had been confirmed by the Settlement Commissioner as the revision filed by legal heirs of "M" (the transferee) was dismissed; what would be the effect of non-implementation of order of Settlement Commissioner cancelling the allotment; whether the rights of respondents (B and others) will not be protected under S.41, Transfer of Property Act, 1882 and principles enunciated in the judgments of superior Courts and whether petitioners if found in possession of the evacuee land, subject-matter of proceedings, would not be entitled for its transfer under S.3(2), Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 or under any Scheme prepared in this behalf by the Government for the transfer of available evacuee land.

Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Habib Khatoon .v. Sardar Muhammad PLD 1970 SC 162; Mst. Ghulam Fatima v.. Muhammad Hussain and 5 others PLD 1976, SC 729; Faizuddin Ahmad v. Muhammad Yousuf and another 1988 SCMR 1289; Qamar Zaman and others v. Ejazi Begum and others 1997 MLD 2408; Ikram Khan and 6 others v. Fazal Khan and another 1997 CLC 1172; Muhammad Sarwar and 5 others v. Muhammad Ali and 18 others 2002 SCMR 829; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53; Manzoor Hussain v. Fazal Hussain and others 1984 SCMR 1027; Gul Muhammad and others v. The Additional Settlement Commissioner and others 1985 SCMR 491; Ejaz Ahmad Khan v. Chahat and others 1987 SCMR 192; Mst. Resham Bibi v,-Mst. Elahi Sain PLD 1991 SC 1034 and Sufi Zaheer Ahmad (deceased) through' Legal Heir- v. Chief Settlement and Rehabilitation Commissioner and others 1993 MLD 195 ref.

Khawaja Mushtaq Ahmad, Advocate Supreme Court/Advocate-on. Record for Petitioners.

Muhammad Naseem Sabir, Additional Advocate-General, Punjab for Respondent No. 1.

Muhammad Nawaz Sulehria, Advocate Supreme Court and Ch Mehdi Khan Mehtab, Advocate-on-Record for Respondents Nos.2 to 5.

Date of hearing: 21st May, 2002

PLD 2002 SUPREME COURT 687 #

P L D 2002 Supreme Court 687

Present: Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

AZMAT BIBI and another‑‑‑Petitioners

versus

ASIFA RIAZ and 3 others‑‑‑Respondents, Criminal Petition No. 148‑L of 2002, decided on 16th April, 2002. .

(On appeal from the judgment dated 1‑2‑2002 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.219‑Q of 2001).

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

‑‑‑‑Ss. 200 & 202‑‑‑Private complaint‑‑‑Preliminary proceedings‑‑Participation in such proceedings by person complained against ‑‑‑Validity‑‑Such person has no right of participation, until cognizance of the matter is taken and accused is summoned‑‑‑Purpose behind the exercise of preliminary proceedings is to find out truth or falsehood of the accusations made in the complaint to be examined on the basis of evidence to be adduced by the complainant.

(b) Criminal Procedure Code (V of 18981‑‑‑

‑‑‑‑Ss. 202, 204 & 205‑‑‑Complaint case‑‑‑Issue of process and summoning of accused‑‑‑Stage‑‑‑Where the Court had recorded the statements under S.200, Cr.P.C. and after finding prima facie case had taken the cognizance of the matter, it was thereafter that the provisions of Chap.XVII, Cr.P.C. [Ss.204 & 205] would come into operation.

‑‑‑‑S. 248‑‑‑Withdrawal of complaint‑‑‑Provision of S.248, Cr.P.C.‑‑Applicability‑‑‑Where the complaint was dismissed for non‑prosecution, the provision of S.248, Cr.P.C. would not be attracted‑‑‑Provision of S.248, Cr.P.C. would be applicable only in those cases where the trial had commenced.

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

‑‑‑‑Ss. 200, 204 & 403‑‑‑Constitution of Pakistan (1973), Art. 13‑‑‑Second trial fbr same offence‑‑‑Dismissal of private complaint for nonprosecution‑‑‑Filing of second complaint‑‑‑Maintainability‑‑‑Accused persons were neither tried earlier nor were convicted or, acquitted, the provisions of S.403, Cr.P.C. & Art.13 of the Constitution were not applicable in circumstances.

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

‑‑‑‑Ss. 204, 265‑K & 561‑A‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Third complaint‑‑‑Issue of process‑‑‑First complaint filed by the complainant was dismissed for non‑prosecution while second complaint was withdrawn for some technical defect‑‑‑Complainant filed third complaint for the same occurrence, against the same accused persons‑‑‑Objection was raised to the maintainability of the third complaint‑‑‑Accused persons tiled application under S.265‑K, Cr.P.C. for their acquittal which was dismissed. by the Trial Court and petition under S.561‑A, Cr.P.C. in High Court also met the same fate‑‑‑Validity‑‑‑Complaint in question was maintainable and competently filed‑‑‑Supreme Court found no illegality in exercise of discretion under Ss.265‑K & 561‑A, Cr.P.C. by the Trial Court and High Court respectively‑‑No case of abuse of process of Court having been made out by the accused persons, Supreme Court declined to interfere with the orders passed by the Courts below‑‑‑Leave to appeal was refused.

Mazhar Hussain and others v. The State and others 1993 PCr.LJ 576 and Allah Wadhavo v. Wali Muhammad and 3 others 2001 PCr.LJ 914 distinguished.

Pramatha Nath Talukdar v. Saroj Ranjan Sarkar AIR 1962 SC 876; Jabed Ali v. Joynal Mridha and 2 others PLD 1968 Dacca 698 and Gulab Khan v. Fazal Hussain and another 1968 PCr.LJ 730 ref.

Sardar Muhammad Lateef Khan Khosa, Advocate Supreme Court instructed by S.Abul Aasim Jafri, Advocate‑on‑Record for Petitioners.

Khadim Hussain Qaiser, Advocate Supreme Court instructed by Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondents.

Date of hearing: 16th April, 2002.

PLD 2002 SUPREME COURT 692 #

P L D 2002 Supreme Court 692

Present: Rana Bhagwandas and Javed Iqbal, JJ

ABDUL KARIM through Legal Heirs‑‑‑Petitioners

versus

FAZAL MUHAMMAD SHAH through Legal Heirs‑‑‑Respondents

Civil Petition for Leave to Appeal No.2507 of 2001, decided on 22nd April, 2002.

(On appeal from judgment of Lahore High Court, Bahawalpur Bench, Bahawalpur dated 4‑7‑2001 passed in Civil Revision No. 161‑D of 1984).

Punjab Pre‑emption Act (I of 1913)---

‑‑‑‑S. 30‑‑‑L.inutation Act (IX of 1908), Art.10‑‑‑Transfer of Property Act (IV of 1882), Ss. 54 & 118‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Pre‑emption suit‑‑‑Transaction of sale effected through mutation‑‑Applicability of Ss.54 & 118, Transfer of Property Act, 1882‑‑‑Limitation‑‑Leave to appeal was granted by Supreme Court to re‑examine the question of limitation in a suit for pre‑emption in the backdrop of a transaction of sale effected through mutation and also to consider the question of applicability of Ss.54 & 118, Transfer of Property Act, 1882 in cases involving question of ownership through a mutation in the light of relevant provisions of the law and the cases decided earlier.

Muhammad Bakhsh v. Zia Ullah PLD 1971 BJ 42; Pir Bakhsh v. Budhoo PLD 1978 BJ 86; Muhammad Bakhsh v. Ziaullah 1983 SCMR 988; Muhammad Fazal v. Kaura 1999 SCMR 1870; Muhammad Adalat Khan v. Sher Muhammad 2001 SCMR 1860; Muhammad Khan v. Fazal Muhammad 1994 SCMR 281 and Noor Muhammad v. Ghulam Masih Gill PLD 1965 (W.P.) BJ 1 ref.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioners.

Gul Zarin Kiyani, Advocate Supreme Court and Anwar H. Mir, Advocate‑on‑Record for Respondents.

Date of hearing: 22nd April, 2002.

PLD 2002 SUPREME COURT 696 #

P L D 2002 Supreme Court 696

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

Mst. SHAH BEGUM through Legal Heirs and others‑‑‑Petitioners

versus

PROVINCE OF SINDH through Deputy Commissioner, Sukkur and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.59 of 2000, decided on 9th May, 2002.

(On appeal from judgment dated 17‑11‑1999 passed by the High Court of Sindh, Bench at Sukkur in Constitution Petition No.D‑720 of 1992).

West Pakistan Board of Revenue Act (XI of 1957)‑‑‑

‑‑‑‑S. 8‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Review by Board of Revenue‑‑‑Scope‑‑‑Land was granted under scheme to affectees of Mangla Dam and some areas were reserved for small Khatadars, Harris and Muhagdars in the area‑‑‑Respondents claimed the land to be in their cultivating possession as Harris, small Khatadars, which was reserved for them by the Government but . inadvertently their land was allotted to the affectees under the scheme‑‑‑Such fact was brought to the notice of the Board of Revenue and after verification of the Colonization Officer by visiting the site in presence of 'the parties, Member, Board of Revenue while exercising the powers under S.8, West Pakistan Board of Revenue Act, 1957 reviewed his earlier order and observed that in view of documentary evidence on record mentioning cultivating possession of the respondents, such evidence could not be brushed aside and held that respondents were entitled to retain that area in their possession which shall not be disturbed‑‑‑High Court, considered the case in its proper perspective and with sound and cogent reasons dismissed the Constitutional petition filed against the order of the Board of Revenue‑‑Validity‑‑‑No jurisdictional error, material illegality or non‑reading of misreading of the documentary evidence in the impugned judgment of High Court was found nor there was any question of public importance, as envisaged `under Art.185(3) of the Constitution being involved, petition for leave to appeal against order of the High Court was dismissed by Supreme Court.

Aminullah and 2 others v. Qalandar Khan and 4 others 1993 SCMR 2307 and Nasim Ahmed Kharal v. Board of Revenue, Sindh 1979 CLC 609 distinguished.

Sardar Asmatullah Khan, Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Petitioners.

Abdul Haleem Pirzada, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondents No.4 to 6.

Date of hearing: 9th May, 2002.

PLD 2002 SUPREME COURT 702 #

P L D 2002 Supreme Court 702

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

KHUSHI MUHAMMAD ---Petitioner

versus

NOOR DIN and others---Respondents

Civil Petition No. 1022-L of 1999, decided on 16th May, 2002.

(On appeal from the judgment dated 14-5-1999 passed by the Lahore High Court, Lahore, in 896 of 1999).

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

----S. 50(1)---Transfer of Property Act (IV of 1882), S.53-A---Unregistered agreement/contract of sale---Proviso to S.50(1), Registration Act, 1908, gave protection to a person in possession of property under unregistered document be it an agreement for sale or contract of sale---Only condition was that the requirements of S.53-A of the Transfer of Property Act, 1882 were to be satisfied.

Fazla v. Mehr Din and 2 others 1997 SCMR 837 ref.

Habibur Rehman and another v. Mst. Wahdania and others PLD 1984 SC 424 distinguished.

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

----S. 53-A---Applicability and scope of S.53-A, Transfer of Property Act, 1882---Provisions. of S.53-A, Transfer of Property Act, 1882 were applicable to cases where a person had contracted to transfer immovable property or had executed an instrument of transfer which was not registered.

Abdur Razzak Howaldar v. Sh. Muhammad Shafi PLD 1962 SC 134 ref.

----S. 50(1)---Transfer of Property Act (IV of 1882), S.53-A---Constitution of Pakistan (1973), Art. 185(3)---Sale of the property---Respondent produced reliable evidence to prove that he had been put into the physical possession of the suit property pursuant to its sale by the petitioner---Said property was subsequently let out by respondent to another person---Evidence showed that petitioner again took over the remaining part of the suit property illegally in collusion with the tenant alongwith the household articles of the respondent---Suit in this respect by respondent was decreed while the one by the petitioner was dismissed which position remained up to the High Court--Validity---No exception could be taken to the findings recorded by the High Court in circumstances---Leave to appeal was declined against the judgment of the High Court.

Fazla v. Mehr Din and 2 others 1997 SCMR 837 and Abdur Razzak Howaldar v: Sh. Muhammad Shafi PLD 1962 SC 4 ref.

Habibur Rehman and another v. Mst. Wahdania and others PLD 1984 SC 424 distinguished.

Jehangir A. Jhoja, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 16th May, 2002.

PLD 2002 SUPREME COURT 706 #

P L D 2002 Supreme Court 706

Present: Rana Bhagwandas and Javed Iqbal, JJ

Sub. (Retd.) MUHAMMAD ASHRAF‑‑‑Petitioner

versus

DISTRICT COLLECTOR, JHELUM and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.2368 of 2001, decided on 18th April, 2002.

(On appeal from. the judgment dated 19‑7‑2001 passed by the Lahore High Court, Rawalpindi Bench, in W. P. No. 1021 of 1995).

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

‑‑‑‑Ss. 4, 5, 6 & 18‑‑‑Acquisition of land‑‑‑Notification under S.5, Land Acquisition Act, 1894 was published in the Gazette but no objection was tiled by the land owner at the opportune time‑‑‑Notification under S.6 of the Act was also got published by the Commissioner after completion of formalities envisaged under Ss. 4 & 5, Land Acquisition Act, 1894‑‑‑Land owner did not take any action for redressal of his grievance for about seven months after the publication of notification under S.5 of the Act and filed Constitutional petition before High Court which was dismissed‑‑‑Landowner, by invoking S.18, Land Acquisition Act, 1894 filed a reference to get compensation enhanced which was demonstrative of the fact that the real grievance of the landowner was not the acquisition of land but improper compensation.

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

---S. 4‑‑‑Acquisition of land‑‑‑Public purpose‑‑‑Principles‑‑‑Provision of Fruit and Vegetable Retailers Market was in the ultimate interest of public at large‑‑‑ Acquisition of land for construction of such a market was for public purpose.

In the present case land in question had been acquired for public purpose as was indicative from notification issued under section 4 of the Act which made it abundantly clear that the land was acquired for the construction of Fruit and Vegetable Retailers Market. By no stretch of imagination can it be inferred that the land in question was not acquired for public purpose and that its main object was to give benefit to a few private retailers. A requisition can be for public purpose even though it is given to an individual or group of individuals. If the object of such person or persons is to have the land for the immediate benefit of public, it can be held to have been taken for a public purpose. If, however, the benefit to the public is only prospective, remote or incidental, the purpose is not public. Contrarily if the object is the benefit of the public is direct and immediate and someone derives some benefit incidentally or remotely, the purpose is a public purpose.

The provision of Fruit and Vegetable Retailers Market is in the ultimate interest of public at large.

Razab Ali v. The Province of East, Pakistan PLD 1959 Dacca 115 and Ramaswami v. Secretary of State AIR 1931 Mad. 361 ref.

‑‑‑‑ Mere assertion cannot take place of proof so as to tilt balance in favour of mala fides.

Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 ref.

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.24‑‑‑Acquisition of land‑‑Public purpose‑‑‑Protection of property rights‑‑‑Scope‑‑‑Land can be acquired for public purpose subject to payment of compensation to be determined by the competent forums provided under Land Acquisition Act, 1894‑‑‑Embargo imposed by Art.24, Constitution of Pakistan (1973)‑‑Extent.

The sanctity of private property has been acknowledged in a crystal clear manner but it must not be lost sight of that where a person is deprived of his property under the authority of law and according to the provisions of law, he has no ground for complaint under the Constitution and the only embargo which has been imposed under Article 24 of the Constitution is that no private property can be acquisitioned save in accordance with law and that too for a public purpose and on payment of compensation.

A land can be acquired for public purpose subject to payment of compensation to be determined by the competent forums provided under the Act.

Fauji Foundation v. Shamimur Rehman PLD 1983 SC 57 ref.

(e) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 185‑‑‑Appeal to Supreme Court‑‑‑New plea‑‑‑Supreme Court does not itself entertain for consideration new pleas which were never agitated before and dilated upon by the High Court‑‑‑Principles.

Neelam Mawaz v. State PLD 1991 SC 640; Mad Ajab v. Awal Badshah 1984 SCMR 440; Mairaj Sons v. United Bank Ltd. 1985 SCMR 987; Central Board of Revenue v. S.I.T.E. PLD 1985 SC 97; Said Quresh v. Ghafia Begum 1974 SCMR 528; Shah Sultana v. Shaukat Ali 1985 SCMR 1568 and Hamad v. Khushi Muhammad 1971 SCMR 365 ref.

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

‑‑‑‑Ss. 4, 5, 6 & 18‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Acquisition of land‑‑‑Validity‑‑‑Land in question had been acquired after completion of all the necessary formalities as envisaged under the Land Acquisition Act, 1894 and no illegality whatsoever had been committed by functionaries concerned on the basis whereof the acquisition of land in question could be declared as unlawful‑‑‑High Court had dilated upon and decided the controversy in a comprehensive manner and no infirmity o; irregularity could be pointed out warranting interference to the judgment of High Court‑‑‑Petition for leave to appeal was dismissed.

Razab Ali v. The Province of East Pakistan PLD 1959 Dacca 115; Ramaswami v. Secretary of State AIR 1931 Mad. 361; Fauji Foundation v. Shamimur Rehman PLP 1983 SC 457; Neelam Mawaz v. State PLD 1991 SC 640; Mad Ajab v. Awal Badshah 1984 SCMR 440; Mairaj Sons v. United Bank Ltd. 1985 SCMR 987; Central Board of Revenue v. S.I.T.E. PLD 1985 SC 97; Said Quresh v. Ghafia Begum 1974 SCMR 528; Shah Sultana v. Shaukat Ali 1985 SCMR 1568 and Hamad v. Khushi Muhammad 1971 SCMR 365 ref.

Raja Muhammad Ibrahim Said, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 18th April, 2002.

PLD 2002 SUPREME COURT 711 #

P L D 2002 Supreme Court 711

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

Mst. SAEEDA BEGUM‑‑‑Petitioner

versus

SMALL BUSINESS FINANCE CORPORATION, DERA GHAZI KHAN and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.3178/L of 2000, decided on 23rd May, 2002.

(On appeal from the judgment dated 31‑10‑2000 of the Lahore High Count, Multan Bench, Multan passed in F. A. O. No. 116 of 2000).

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

‑‑‑‑Ss. 14, 15 & 18‑‑‑Civil Procedure Code (V of 1908), O.XXI, Rr.58, 62, 66, 99 & S.151‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Execution of decree for recovery of loan amount‑‑‑Objection as to sale of mortgaged property by third person‑‑‑Facility of loan was advanced in the year 1988 and judgment‑debtor provided all the documents pertaining to the property inclusive of its mutation, non‑encumbrance certificate from Sub‑Registrar, approved site plan of the property and many other documents while mortgaging the property‑‑‑Banking Court decreed the suit of Financial Corporation against judgment‑debtor and decree‑holder having equipped with the decree fled execution petition and notices thereupon were issued to the judgment‑debtor under O.XXI, R.66, C.P.C.‑‑‑Nobody having appeared in spite of such notice, order was passed for the auction of the property and auctioneer was accordingly appointed‑‑‑Petitioner claimed that he had purchased the property in question in the year 1989 and moved objection petition under O.XXI, R.99 read with 5.151, C.P.C. before the executing Court and auction was stayed‑‑‑Petitioner only produced photostat copies of the registered sale‑deeds relied upon by her and original documents or attested copies of the same were not produced‑‑‑Banking Court in the exercise of its powers under O.XXI, R.58, C.P.C. after taking into account all the documents and pleas raised by the parties, dismissed the objection petition which order was maintained by the High Court ‑‑‑Validity‑‑Claim/objection of the petitioner was rightly dismissed under O.XXI, R.58, C.P.C. as the Banking Judge, after thrashing the entire documents placed on record, came to an irresistible conclusion that the disputed property, subject-matter of the proceedings, was already mortgaged with the Financial Corporation‑‑‑Documents annexed with the objection petition reflected that the petitioner had claimed that she purchased the property in question in the year 1989 while the same was already mortgaged‑‑‑Petitioner had only produced photostat copies of the documents while the decree‑holder had produced a number of documents to substantiate the claim of the Corporation that the property in question was the very property which was mortgaged by the judgment‑debtor at the time of grant of loan‑‑‑No illegality had been committed by the Banking Court in dismissing the objection petition of the petitioner in exercise of its powers under O.XXI, R.58, C.P.C. which order had been maintained by the High Court‑‑‑Petition for leave to appeal against the order of the High Court was dismissed by the Supreme Court.

Saeedur Rehman Farrukh, Advocate Supreme Court and M. Tanvir Ahmad, Advocate‑on‑Record for Petitioner.

M. Iqbal Khichhi, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 23rd May, 2002.

PLD 2002 SUPREME COURT 716 #

P L D 2002 Supreme Court 716

Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

Lt.-Col.(Retd.) GHULAM RASOOL VIRK‑‑‑Petitioner

versus

PROVINCE OF PUNJAB through Deputy Commissioner, Sargodha and 4 others‑‑‑ Respondents

Civil Petition No. 1098‑L of 1998, decided on 7th March, 2002.

(On appeal from the judgment dated 25‑5‑1998 of Lahore High Court Lahore passed in C.R. No.2249 of 1996).

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss. 10 & 24‑‑‑Land grant policy‑‑‑Renewal of lease ‑‑‑Entitlement‑‑Petitioner was granted land on tenancy for cultivation on animal breeding conditions‑‑‑Conditions of lease authorised the Director or any other person on his behalf to inspect the animals and the stock of the tenant and to have also free access to the land for the purpose of inspecting the breeding animals, their progeny and stud land‑‑‑Government under the conditions of grant of land reserved absolute right regarding future renewal or otherwise of the land on lease without assigning any reason and no prior notice to the allottee in such case was necessary‑‑‑Renewal of the lease could not be claimed as a matter of right‑‑‑Tenant was found disentitled for renewal of lease on account of poor purchasing results/performance and of flagrant violation of the terms and conditions of lease, he was rightly refused further renewal of lease.

Sardar Muhammad Aslam Sial and 3 others v. Government of Pakistan and 3others 1985 SCMR 9 distinguished.

Mst. Zainab Khatoon v. Member (Colonies), Board of Revenue, Punjab and others 1998 SCMR 1188 ref.

Sahibzada Anwar Hamid, Advocate Supreme Court with Syed Abul Aasim Jaferi, Advocate‑on‑Record for Petitioner.

Malik Akhtar Hussain Awan, Additional Advocate‑General, Punjab for Respondents Nos.2 to 4.

Sher Zaman Khan Deputy Attorney‑General and Mehmoodul Islam, Advocate‑on‑Record for Respondent No.5.

Date of hearing: 7th March. 2002.

PLD 2002 SUPREME COURT 720 #

P L D 2002 Supreme Court 720

Present: Tanvir Ahmed Khan, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD IBRAHIM ‑‑‑Petitioner

Versus

Mst. IRSHAD BEGUM and others‑‑‑Respondents

Civil Petition No.942‑L of 2000, decided on 10th May, 2002.

(On appeal from the judgment dated 17‑2‑2000 passed by the Lahore High Court, Lahore in F.A.O. No.33 of 2000).

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

‑‑‑‑O. XLI, R.11‑‑‑Power of Appellate Court‑‑‑First Appeal‑‑‑Dismissal in limine‑‑‑Rule of practice‑‑‑Principles.

It is not an inflexible rule of practice that the first appeal from an order should be invariably admitted which in no case can be dismissed in limine. Depending upon the facts and circumstances of each case and the statute under which an appeal is filed it is difficult to lay down an absolute rule of practice for all cases.

The dismissal of first appeal in limine is not a general rule but can be resorted to in those cases which are of such a simple nature that no question of law and facts arises for consideration. Rule 11 of Order XLI of the Code of Civil Procedure does certainly give the Appellate Court, in an appropriates case, the power to dismiss an appeal in limine.

Abid Hussian v. Mst. Afsar Jehan Begurn and another PLD 1973 SC 1 and Ali Muhammad v. Commissioner Afghan Refugees, N.‑W.F.P. and another 1995 SCMR 1675 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑

‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), O.XLI, R.11‑‑‑ Arbitration Act (X of 1940), First Sched., para.5‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Ejectment of tenant‑‑‑Appeal‑‑‑District Judge on appeal referred the matter to the Arbitrators‑‑‑Respondent filed objection petition for setting aside the arbitration awards which was accepted by the District Judge and first appeal by the petitioner against the order of the District Judge was dismissed by the High Court‑‑‑Contention of the petitioner was that dismissal of the first appeal in limine by the High Court was against the established principles of law and judgment was passed in disregard of the provisions of Arbitration Act, 1940 and was also against the evidence on record and there was no justification for the interference with the award‑‑‑Validity‑‑‑High Court had justifiably come to the conclusion that in the present case the defects/illegalities noted by the District Judge were apparent on the face of the record in which the decision on affidavits could be safely given without holding a detailed inquiry‑‑‑Judgment of the High Court was just and fair in the facts and circumstances of the case which did not call for any interference by Supreme Court‑‑Petition for leave to appeal was dismissed.

Abid Hussain v. Mst.Afsar Jehan Begum and another PLD 1973 SC 1 and Ali Muhammad v. Commissioner Afghan Refugees, N.‑W.F.P. and another 1995 SCMR 1675 ref.

M. Aftab Iqbal Chaudhree, Advocate Supreme Court and Muhammad Aslam Ch. Advocate‑on‑Record (absent) for Petitioner.

Aamir Raza A. Khan, Advocate Supreme Court with Mehmoodul Islam, Advocate‑on‑Record for Respondents.

Date of hearing: 10th May, 2002.

PLD 2002 SUPREME COURT 723 #

P L D 2002 Supreme Court 723

Present: Rana Bhagwandas, Javed Iqbal and Sardar Muhammad Raza, JJ

ZAFAR IQBAL QURESHI‑‑‑Petitioner

versus

MUHAMMAD ALI‑‑‑Respondent

Civil Petition for Leave to Appeal No.3186 of, decided on 25th April, 2002.

(On appeal from the Judgment dated 12‑9‑2001 of the Lahore High Court Mutlan Bench, Multan in Civil Petition No.591‑D of 2001).

(a) Civil service‑‑

‑‑‑‑ Suit for damages‑‑‑Plaintiff, a Government servant, for almost five months was made to face hardship due to unreasonable, .unjustified and sadistic attitude of the District Accounts Officer by not passing his pay bills against the Rules‑‑‑Plaintiff brought a suit for damages for Rs.10,00,000 which was decreed to the extent ‑of Rs.50,000 by the First Appellate Court as well as the High Court‑-‑Validity‑‑‑Documentary evidence on record was more than sufficient to prove the high‑handedness of the judgment‑debtor who in his capacity as District Accounts Officer should have refrained from being adamant when policy letter on the subject was brought to his notice and he had no authority to raise objection challenging the very authority of the competent officer‑‑‑Two Courts below having rightly arrived at the conclusion about the quantum of damages which was a question of fact. Supreme Court, in circumstances, declined interference and dismissed the petition for leave to appeal against the judgment of High Court‑‑‑Supreme Court observed that the Government officials dealing with the rights of the people and other Government officials were not supposed to have a negative and sadistic attitude merely to satisfy their false egos‑‑‑Supreme Court deprecated, the conduct of the judgment‑debtor on account of which a Government servant drawing small salary was forced to face monetary loss as well as mental torture‑‑‑Civic sense of the aggrieved civil servant who did not feel contented upon the sanction of the bill and initiated to ask for damages was appreciated by the Supreme Court with the remarks that it was healthy sign to make others realise the consequences of their omissions to perform an act which they were legally as well as morally bound to perform.

(b) Civil service‑‑‑

‑‑‑‑ Leave preparatory to retirement‑‑‑Once the competent Authority had cancelled the leave preparatory to retirement and the civil servant had continued in service, the Accounts Officer had no authority to raise objection challenging the very authority of the competent officer.

Ch. Afrasiyab Khan, Advocate Supreme Court and Anwar H. Mir Advocate‑on‑Record for Petitioner.

Date of hearing: 25th April, 2002.

PLD 2002 SUPREME COURT 726 #

P L D 2002 Supreme Court 726

Present: Javed Iqbal and Tanvir Ahmad Khan, JJ

MAPLE LEAF CEMENT FACTORY LIMITED‑‑‑ Petitioner

versus

GOVERNMENT OF THE PUNJAB through Secretary, Labour Department, Civil Secretariat, Lahore and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.2350‑L of 2000, decided on 15th May, 2002.

(On appeal from the order dated 27‑6‑2000 passed by Lahore High Court, Lahore in I.C.A. No.361 of 2000).

Provincial Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑‑S. 1(3)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Powers of Provincial Government under S.1(3), Provincial Employees' Social Security Ordinance, 1965‑‑‑Scope‑‑‑Provincial Government has been empowered to make the provisions of Provincial Employees' Social Security Ordinance, 1965 applicable to any area, classes of persons, industries or establishments from such date as may be deemed tit and proper‑‑‑No condition or embargo whatsoever ‑has been imposed upon the Provincial Government for issuance of such notification‑‑‑No provision exists in the Provincial Employees Social Security Ordinance, 1965 whereby opportunity of hearing is to be afforded to the employer concerned and thus the principle "audi alteram partem" cannot be pressed into service‑‑‑Prevalent medical facilities would have no substantial bearing on the issue of notification as it is for the employer to take care of employees which does not constitute a bar for making further subscription which is quite meagre in nature and would have little financial impact‑‑‑Leave to appeal against order of the High Court was refused as there was no illegality or fact of public importance involved.

M. Saleem Sahgal, Advocate Supreme Court and Tanvir Ahmed Khan, Advocate‑on‑Record (absent) for Petitioner.

Nasim Saber, Additional Advocate‑General, Punjab and. M. Mujahid Ahmad, Advocate Supreme Court for Respondents.

Date of hearing: 15th May, 2002.

PLD 2002 SUPREME COURT 728 #

P L D 2002 Supreme Court 728

Present : Munir A. Sheikh, Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

IMDAD MAGSI and others---Appellants

versus

KARACHI WATER AND SEWERAGE BOARD and other's--- Respondents

Civil Appeals Nos. 1232 to 1235 of 2000, decided on 14th May, 2002.

(On appeal from the judgment of the High Court of Sindh, dated 4-6-1999 passed in C. P. No. D-1151 of 1998).

(a) Karachi Water and Sewerage Board Employees (Probation, Confirmation and Seniority) Rules, 1987---

----Rr.4(a) & 6(b)(c) ---Karachi Water and Sewerage Board Employees (General Conditions of Services) Rules, 1987, R.78(1)(2)(3)---Karachi Water and Sewerage Board Resolution No.1 of 1991, dated 15-6-1991---Sindh Service Tribunals Act (XV of 1973), S.2-A---Constitution of Pakistan (1973), Arts. 199, 212 & 185(3)---Retrenchment of the employees of Karachi Water and Sewerage Board before the completion of probation period---Chief Minister of the Province ordered reinstatement of such employees--Validity---Constitutional petition before High Court for implementation of the orders of the Chief Minister---Maintainability---Applicability of S.2-A, Sindh Service Tribunals Act, 1973---Scope---Leave to appeal was granted by the Supreme Court to consider the points to the effect as to whether writ of mandamus or writ of certiorari could be issued by the High Court to get the order of Chief Minister implemented who himself was Chief Executive of the Province but his orders were not complied with by the Karachi Water and Sewerage Board; whether employees of Karachi Water and Sewerage Board whose services were terminated could be reinstated by the Chief Minister on his own by taking suo motu action and by ignoring the prescribed procedure as enumerated in S.143, Sindh Local Government Ordinance, 1979; whether the downsizing/retrenchment policy had been implemented with the prior approval of Government of Sindh which resulted in. an en bloc termination of the employees of the Board; and whether the controversy related to the terms and conditions of service and fell within the jurisdictional domain of Sindh Service Tribunal in view of S.2-A of the Sindh Service Tribunals Act, 1973.

(b) Karachi Water and Sewerage Board Act (X of 1996)---

----Ss. 4 & 6(2)---Retrenchment of employees of the Karachi Water and Sewerage Board during their probationary period---Order of reinstatement of such employees by the Chief Minister of the Province---Vice-Chairman of the Board who was member of the Provincial Assembly, I intervened in the matter of reinstatement of such employees and did. not allow the functionaries of the Board to comply with or implement the orders of the Provincial Government or the Chief Minister-r-Chairman of the Board being unable to perform functions as envisaged by S.6(2) of the Karachi Water and Sewerage Board Act, 1996, orders or directions issued on the matter by the Vice-Chairman were without lawful authority and of no legal effect and also lacked bona fides and suffered from not only lack of power but also malice--Vice-Chairman, while issuing the directions for not implementing the orders of the Chief Minister/Provincial Government, used the name of the Chairman as if he was directed by the Chairman of the Board to issue the orders in question, which again was contrary to the order of the Appellate Authority i.e. the Provincial Government.

----Rr. 3, 4, 5, 6 & 7---Termination of services of probationers--Procedure---Extension of period of probation---Principles---Initial period of probation, in the present case was extended for another period of one year and employees continued as such till 1997---If no order -had been made by the date on which the maximum additional period of probation expired; the employee's probationary period would be deemed to have been terminated with effect from the date on which the period of probation was last extended or deemed to have been so extended---When the probationary period of the employees had not been extended for another period of one year, the period of probation would have stood extended by force of R.6(1)(b) of the Rules, for another period of two years---Period of probation of employees having been terminated in the year, 1997 they were eligible for confirmation against the posts, held by them by virtue of R.7 of Rules---If an employee who had become eligible by force of the said Rules for confirmation but no order was passed by the Authority concerned, he could not be treated a probationer, for the probation period by operation of the said Rules, stood terminated---Such an employee would be deemed to have been confirmed.

(d) Karachi Water and Sewerage Board Act (X of 1996)---

----S.13---Retrenchment of employees of the Board ---Appeal---Maintainability---Appeal under S.13, Karachi Water and Sewerage Board Act, 1996 against the decision of the Board would be heard and disposed of in such a manner as may be prescribed --Decision of retrenchment of its employees by the Board treating them as probationers was appealable before the Provincial Government and the Chief Minister being the Chief Executive of the province was competent and vested with the power to set aside the same to which no exception could be taken.

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

----Arts. 199---Karachi Water and Sewerage Board Act (X of 1996), S.13--Constitutional jurisdiction of High Court under Art. 199 of the Constitution-Scope---Constitutional petitions were filed by the retrenched employees of Karachi Water and Sewerage Board seeking direction in the nature of mandamus for implementation of the order of the Chief Minister/Provincial Government passed in their appeals wherein they were ordered to be reinstated---Maintainability---Constitutional petitions were filed by the employees who were the beneficiaries of the order passed by the Provincial Government/Chief Minister in their appeals which were not allowed to be implemented by the Vice-Chairman of the Board which was absolutely without lawful authority---High Court, therefore, was under the law obliged to declare the act of Vice-Chairman as without lawful authority and direct the Board to give effect to the orders of the Chief Minister as it was not a case of enforcement of any of the terms and conditions of the employees, they having already been reinstated by the Chief Minister in appeal---View of the High Court that the employees should have approached the Service Tribunal against the order passed in appeal was not sustainable.

(f) Civil service--

----Probation---Non-extension of period of probation---Effect---If no order had been made by the date on which the maximum additional period of probation expired, the employee's probationary period, would be deemed to have been terminated with effect from the date on which the period of probation was last extended or deemed to have been so extended.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Abdul Qadir Khan, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants (in C.As. Nos. 1232 and 1235 of 2000).

Appellant in person (in C.A. No. 1233 of 2000).

M. Bilal, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellants (in C.A. No. 1234 of 2000).

Fazal-e-Ghani Khan, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 14th May, 2002.

PLD 2002 SUPREME COURT 741 #

P L D 2002 Supreme Court 741

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

IBRAHIM and 4 others‑‑‑Appellants

versus

REHMAT ALI and 6 others‑‑‑Respondents

Civil Appeal No.266 of 1995, decided on 7th November, 2001

(On appeal from the judgment dated 14‑9‑1993 of Lahore High Court, Lahore passed in C.R. No.885 of 1982).

(a) Islamic Law---

‑‑‑‑Inheritance‑‑‑Property in question having been mutated in the name of widow bf the deceased owner under custom, she was not absolute owner of the property but inherited the same as a limited owner‑‑‑Limited interest under custom came to an end on remarriage or death of a person, who enjoyed such ownership‑‑‑Widow having died, after her death the property reverted to the last mate owner (the deceased) and the property would be divisible according to Islamic Law.

(b) Islamic Law‑‑‑

‑‑‑‑Inheritance‑‑‑General‑‑‑No distinction between "movable" or "immovable" property and "ancestral" and "self‑acquired" property in Islamic Law.

There is no distinction in the Islamic Law of Inheritance relating to movable or immovable property. Also there is no such distinction between the ancestral and self‑acquired property.

‑‑‑‑Inheritance‑‑‑Classes of heirs and inheritance of estate of the deceased‑‑Principles illustrated.

According to the 'Hanfi Law', there are three classes of heirs namely, (1) Sharers, (2) Residuaries and (3) Distant Kindred. The estate of deceased Muslim is inherited by legal heirs according to their respective shares. First to get are the sharers and thereafter residuaries get their shares. If there are no sharers, the residuaries will succeed to the whole inheritance. If there be neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to inheritance. Distant kindred will get nothing so long the sharers and residuaries are there. Inheritance, in fact, will depend on the circumstances of each case. For example, if in a case surviving relations are father and father's father, the father alone will succeed to the whole inheritance to the entire exclusion of the grandfather, though both fall in the category of sharers. Likewise, if the surviving relations are a son and the son's son, the son alone will inherit the estate and the son's son will not be entitled to any share in the inheritance, though both belong to the class of residuaries. Similarly, if the surviving relations belong to the class of distant kindred i.e. a daughter's son and a daughter's son's son, the former will succeed to the whole inheritance on the rule of succession that the nearer relation excludes the remote one.

Dil Muhammad Tarar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Appellants.

Kh. Muhammad Farooq, Advocate Supreme Court for Respondents Nos. 1 to 5.

Respondent No.7 : Ex parte.

Date of hearing: 7th November, 2001.

PLD 2002 SUPREME COURT 747 #

P L D 2002 Supreme Court 747

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

Messrs NISAR‑UL‑HAQ ASSOCIATES, GOVERNMENT, CONTRACTORS, MULTAN CANTT.‑‑‑Petitioner

versus

CANTONMENT BOARD, MULTAN through Executive Officer and another-‑‑Respondents

Civil Petition for Leave to Appeal No.601 of 2000, decided on 20th May, 2002.

(On appeal from the judgment dated 14‑12‑1999 passed by the Lahore High Court, Mutlan Bench, Multan in C.R.No.47‑D of 1996).

Cantonments Act (II of 1924)‑‑‑

‑‑‑‑S. 260, 262 & 265‑‑‑Arbitration Act (X of 1940), Ss.10(3) & 14(1)‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Constitution of Committee of Arbitration and decision of such Committee under Ss.260, 262 & 265, Cantonments Act, 1924‑‑‑Award‑‑‑Procedure‑‑‑Where more than three arbitrators were appointed the award of the majority or if the arbitrators were, equally divided in their opinion, the award of the umpire shall, unless the arbitration agreement otherwise provided, prevail‑‑‑ Provisions of S.14(1), Arbitration Act, 1940 provided that a hen the arbitrators or umpire had made their award, they shall sign the same and give notice in writing to the parties of the nuking and signing thereof‑‑Award, in the present case, had not beer. signed by the arbitrators within the meaning of S.14(1), Arbitration Act 1940 and was also violative of the statutory provisions of Cantonments Act 1924 pertaining to the constitution and conduct of Committee of Arbitration in particular S.265(1) thereof which provided that the decision of every Committee of Arbitration shall be in accordance with the majority of votes taken at a meeting at which the Chairman and at least three of the other members were present ‑‑‑Record showed that two Courts below had not considered the case in its proper perspective, and totally in disregard of the provisions of law made the award rule of the Court but High Court, in revision very rightly reversed the concurrent judgments of lower Courts‑‑Judgment of High Court was well‑reasoned and based on proper appreciation of facts and law‑‑‑No misreading or non‑reading of evidence, material irregularity, or misconstruction of law was noted to the judgment of High Court‑‑‑Petition for leave to appeal against order of the High Court was dismissed.

Bashir Ahmad Ansari, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Shaukat Aziz Siddiqui, Advocate Supreme Court with Raja Abdul Ghafoor, Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 20th May, 2002.

PLD 2002 SUPREME COURT 753 #

P L D 2000 Supreme Court 753

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

MUHAMMAD NASEEM KHAN and 5 others‑‑‑Appellants

versus

UNITED BANK LIMITED, A BANKING COMPANY, REGISTERED UNDER THE COMPANIES ACT, HAVING ITS, REGISTERED OFFICE AT I. I.CHUNDRIGAR ROAD, AND BRANCH AT MARRIOT ROAD, KARACHI‑‑‑Respondent

Civil Appeal No. 1783 of 1997, decided on 29th May, 2002.

(On appeal from judgment dated 10‑7‑1996, passed by the High Court of Sindh, Karachi, in F. R. A. No, 195 of 1995).

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

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bona fide personal need of landlord‑‑‑Default in payment of rent‑‑‑Leave to appeal was granted by Supreme Court to consider as to whether in view of the fact that lease period had expired, the finding on the point of personal requirement could have been reversed by the High Court on the grounds finding favour with it, keeping in view, the terms of the lease.

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

‑‑‑‑S. 15‑‑‑Bona fide personal need of landlord‑‑‑Expiry of lease agreement‑‑‑Effect‑‑‑Contention that expiry of lease deed, in any case, does not come in the way of the tenant, was not tenable for the reason that the extension of lease was always contingent upon the consent of the landlord and such period could not be extended unilaterally.

Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Limited PLD 1984 SC 38 distinguished.

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art.187‑‑‑Bona fide personal need of landlord‑‑‑Landlords were in litigation since 1994; they intended to commerce their business and they had fully proved their bona fide need in good faith‑‑‑Landlords could not be denied their right of occupation of the demised premises‑‑‑Plea that tenant was a bank managed and controlled by the Government was not a valid ground, because Supreme Court was bound to do complete justice in the matter as required under Art. 187 of the Constitution.

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record (absent) for Appellants.

A.A. Siddiqui, Advocate‑on‑Record for Respondent.

Date of hearing: 29th May, 2002.

PLD 2002 SUPREME COURT 757 #

P L D 2002 Supreme Court 757

Present: Nazim Hussain Siddiqui and Sardar Muhammad Raza Khan, JJ

Dr. MUKHTAR HAMID SHAH and others‑‑‑Petitioners

versus

GOVERNMENT OF THE PUNJAB and others Respondents

Civil Petition No.3444 of 2001, decided on 29th April, 2002.

(On appeal from the judgment dated 15‑10‑2001 of Lahore High Court, Rawalpindi Bench passed in W. P. No. 2065 of 1997 etc.).

(a) Punjab Finance Ordinance (III of 2000)‑‑‑

‑‑‑‑Preamble‑‑‑Punjab Finance Act (V of 1996), Preamble‑‑‑Provisions of Punjab Finance Ordinance, 2000 were not retrospective in effect and provisions of Finance Act, 1996 by inception had not become non‑existent by virtue of provisions of Finance Ordinance, 2000.

(b) Punjab Finance Ordinance (III of 2000)‑‑‑

‑‑‑‑S. 11 ‑‑‑Punjab Finance Act (V of 1996), Ss. 8 & 9‑‑‑General Clauses Act (X of 1897), S. 6‑‑‑Effect of repeal‑‑‑Term "repeal"‑‑‑Connotation‑‑"Repeal" and "amendment" distinction‑‑‑" Repeal" and "deletion" cannot , as a rule, have retrospective effect to undo the consequences already ensued, unless the Legislature specifically so directs ‑‑‑Section 6, General Clauses Act. 1897 is an exception and provides protection to the action already taken under the old Act‑‑‑Contention that since the word "delete" has been used in the Finance Ordinance, 2000, as such, it shall be deemed to be operative from 1‑7‑1996 when the Finance Act, 1996 was enforced, was repelled.

The term 'repeal' as applied with reference to statute means the abrogation or annulling of earlier law in force by a subsequent statute. Its dictionary meaning are to abolish, to abrogate, to annul, to call back, to cancel, to dismiss, to give up, to recall, to rescind. The terms 'repeal' and 'amendment' have been distinguished to the effect that "repeal" of a law means its complete abrogation by the enactment of a subsequent statute, whereas the "amendment" of a statute means an alteration in the law already existing, leaving some part of the original still standing.

The dictionary meaning of terms 'repeal' and 'delete' are almost identical and in general sense these terms are synonymous. Repeal in its wider scope includes amendment and deletion. Unnecessary Acts or their provisions are struck down by repealing and amending Acts in accordance with the social conditions prevailing in society. A 'repeal' or 'deletion' cannot, as a rule, have retrospective effect to undo the consequences already ensued, unless the Legislature specifically so directs. Section 6 of General Clauses Act is an exception and provides protection to the action already taken under the old Act.

The contention that since the word 'delete' has been used in the Finance Ordinance, 2000, as such, it shall be deemed to be operative from 1‑7‑1996 when the Act of 1996 was enforced, is devoid of any force.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioners.

Ahmed Saeed, ETO and Shoukat Mehmood, AETO for Respondents.

Date of hearing: 29th April, 2002.

PLD 2002 SUPREME COURT 760 #

P L D 2002 Supreme Court 760

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

Miss RABAIL JAVED‑‑‑Petitioner

versus

PRINCIPAL, JINNAH COLLEGE FOR WOMEN, UNIVERSITY OF PESHAWAR and 5 others‑‑‑Respondents

Civil Petition for Leave to Appeal No.2715 of 2001, decided on 23rd May, 2002.

(On appeal from judgment dated 11‑9‑2001 passed by the Peshawar High Court, Peshawar in W. P. No. 1012 of 2001).

Constitution. of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Educational Institution‑‑‑Admission in college against sports seat‑Candidate who was unsuccessful in the test and was refused admission had moved the Constitutional petition before the High Court and the High Court allowed provisional admission to the candidate‑‑Constitutional petition was finally dismissed and candidate was denied the admission‑‑‑Validity‑‑‑Candidate had already been granted admission in the College in the evening classes against general seats but not on the sports basis as claimed by her‑‑‑Effect‑‑‑Sole purpose of candidate in approaching the Courts was to get education in the College which had already been allowed by the College Authorities‑‑‑No misreading or non‑reading of material evidence, or misconstruction of law had taken place‑‑‑No jurisdictional error or material illegality in the judgment had been found and thus same was not open to exception‑‑‑No question of law, of public importance, as contemplated under Art.185(3) of the Constitution was involved‑‑Petition for leave to appeal against order of the High Court was dismissed.

M. Akram Sheikh, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioner.

Abdul Qadir Khattak, Advocate Supreme Court with Mir Adam Khan, Advocate‑on‑Record for Respondents Nos. 1 to 5.

Imtiaz Ali Khan, Additional A.‑G., N.‑W.F.P., Peshawar (on Court's Notice).

Date of hearing: 23rd May, 2002.

PLD 2002 SUPREME COURT 763 #

P L D 2002 Supreme Court 763

Present: Nazim Hussain Siddiqui and Sardar Muhammad Raza Khan. JJ

Chaudhry AZIM BAKHSH‑‑‑Appellant

versus

Mst. JANNAT BIBI through Legal Heirs and others‑‑‑Respondents

Civil Appeal No. 1397 of 1995, decided on 16th May, 2002.

On appeal from the judgment dated 26‑4‑1994 of the Lahore High Court, Lahore in Regular Second Appeal No.399 of 1972).

Easements Act (V of 1882)‑‑‑

‑‑‑‑S. 15‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 19582, S.3(3)‑‑‑Right of easement‑‑‑Evacuee property‑‑‑'J' was allotted an evacuee property and Permanent Transfer Deed was issued on 10‑4‑1965; an adjacent property was acquired by 'C' through an auction held on 8‑9‑1960 and confirmed on 21‑9‑1960 and Permanent Transfer Deed was issued to him on 31‑8‑1963‑‑‑'C' constructed a wall in his premises on the point where the two properties abutted each other‑‑‑Dispute as to right of easement‑‑‑Right of easement, if any, extinguishes the moment one person becomes the owner of dominant as well as servient heritages ‑‑‑Central Government in the year 1959 having become owner of the properties. the right of easement, if any, resting in the evacuee was extinguished in that year‑‑‑Such right could not be claimed so long as the Central Government remained owner of both the properties‑‑‑Term "free from all encumbrances" used in S.3(3), Displaced Persons (Compensation and Rehabilitation) Act, 1958 meant disappearance of all aggregate rights including easements etc.‑‑‑Once the property stood permanently allotted to two transfrees, it ceased to remain an evacuee property and the easement rights, if at all available, could be exercised thereafter provided the requirements of S.15, Easements Act, 1882 were fulfilled‑‑‑Even if the parties, in the present case, could exercise easement rights, after 10‑4‑1965 or at the most after 31‑8‑ 1963, the same had not been matured by the year 1971 when the suit was instituted‑‑‑Principles.

Section 15 of the Easements Act, 1882, provides that where the access and use of light or air to and for any buildings have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, the right to such access and use of light or air, support, or other easement, shall be absolute. On the other hand, it is an admitted fact, to the present case, that both dominant as well as servient heritages had once been evacuee properties. The Central Government had acquired the evacuee property through Notification No.U‑8‑79/3113 dated 21‑8‑1959. The legal effect of such acquisition of property by Central Government would be that all rights of evacuees existing till such date shall become extinguished It is a settled principle of law enumerated in section 46 of the Easements Act that an easement is extinguished when the same person becomes entitled to the absolute ownership of the whole of the dominant and servient heritages. In the present case all rights including that of easement vesting in the evacuees would stand extinguished on the day when the Central Government acquired the property and became the owner of both the properties dominant as well as servient.

Subsection (3) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 would further elaborate the matter.

The term 'free from all encumbrances' means disappearance of all aggregate rights including easements etc.

Right of easement, if any, extinguishes the moment one person becomes the owner of dominant as well as servient heritages. The Central Government in the year 1959 had become owner of both the properties and thus the right of easement, if any, vesting in the evacuee had extinguished in the year 1959. Such right could not be claimed so long as the Central Government remains owner of both the properties.

In the present case the admitted facts on record would indicate that the appellant had become owner on 21‑8‑1963, while 'J' had become owner on 10‑4‑1965. No right of easement, therefore, could be exercised at the most up to 10‑4‑1965. Once the property stands permanently allotted to two transferees, it ceases to remain an evacuee property and the easement rights, if at all available, can be exercised thereafter provided the requirements of section 15 of the Easements Act are fulfilled. Even if the parties could exercise easement rights after 10‑4‑1965 or at the most after 31‑8‑1963 the same had not matured by the year 1971 when the civil suit was instituted in the instant case.

Imam Ali v. Muhammad Din 1989 SCMR 960 distinguished.

Subedar Muhammad Afzal v. Syed Nafiz Ahmad PLD 1962 (W.P.) Lah. 45; Chairman, Mirpurkhas Municipal Committee v. Begum Jamila Khatoon 1968 SCMR 369 and Sheikh Nazir Ahmed v. Mian Nazir Ahmad 1982 SCMR 1059 ref.

Shahzad Shaukat, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record (absent) for Appellant.

Syed A. Aasim Jafri. Advocate-on-Record (absent) for Respondents.

Date of hearing: 16th May, 2002.

PLD 2002 SUPREME COURT 768 #

P L D 2002 Supreme Court 768

Present : Qazi Muhammad Farooq, Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

ERIK MASIH and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

368 and 369 of 2001, decided on 10th April, 2002.

(On appeal from the judgment dated 31‑7‑2000 of the Lahore High Court, Lahore, passed in Criminal Appeal No.32‑J of 1995 and Murder Reference No.63 of 1995).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), S.156‑‑‑Investigation by Crimes Investigation Agency‑‑‑Accused raised the plea that the police official from Crimes Investigation Agency was not competent to investigate the case, hence the investigation was without lawful authority ‑‑‑Validity‑‑No question in this respect was put to the investigating officer at the trial regarding his competency in the matter‑‑‑No prejudice whatsoever had been caused to the accused as they were given fair opportunity by the Trial Court after framing of charge‑‑‑Plea raised by the accused was repelled by Supreme Court.

State through Advocate‑General, Sindh v. Bashir and others PLD 1997 SC 408; The State v. Muhammad Hussain PLD 1968 SC 265 and Mehr Khan v. The State 1968 PCr.LJ 363 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), S.164‑‑‑Reappraisal of evidence‑‑‑Judicial confession‑‑‑Murder of four persons‑‑‑Allegation of illicit relations with wife of one of the deceased ‑‑‑Accused persons confessed their guilt before the Judicial Magistrate‑‑‑Trial Court, on the basis of the judical confession, awarded death sentence to both the accused persons which was maintained by High Court ‑‑‑Validity‑‑‑Judicial confessions were recorded without any duress or coercion in the free atmosphere‑‑‑Recovery of incriminating weapons and clothes of the deceased were also taken into consideration by the Trial Court as well as by High Court‑‑‑All such links had fully implicated the accused persons in the commission of the callous and heinous offence wherein the male accused had developed illicit relations with the female co‑accused had done to death his four near ones to have a clean go in the accomplishment of his nefarious designs‑‑‑Motive had been established on record by the prosecution‑‑‑Male accused in his confession had exonerated the female accused from direct involvement in the murder of the deceased persons‑‑‑Supreme Court, maintained the death sentence of the male accused while that of the female accused was altered to life imprisonment‑‑‑Appeal was disposed of accordingly.

Muhammad Zaman Bhatti; Advocate Supreme Court for Appellant (in both the Cases).

Ch.Ghulam Ahmed, Advocate Supreme Court for the State.

Date of hearing: 10th April, 2002.

PLD 2002 SUPREME COURT 775 #

P L D 2002 Supreme Court 775

Present: Sh. Riaz Ahmed, Syed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ

BASHIR AHMED and 2 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.216, 217 and Jail Petition No.38 of 2000, decided on 24th October, 2001.

On appeal from the order dated 4‑5‑1999 and 1‑2‑2000 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Cr.A.No.38 and M.R.11 of 1998 and Cr As. Nos.37 and 38‑J of 1999).

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S. 10(4)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider whether the principles governing appraisal of evidence laid down by Supreme Court were followed by the Courts below to ensure the safe dispensation of justice in criminal cases.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S. 10(4)‑‑‑Gang rape‑‑‑Sentence of death‑‑‑Objection was raised by the accused to the sentence of death being harsh‑‑‑Validity‑‑‑When Zina‑bil‑Jabr is committed, no other sentence but death is to be awarded, because the law does not permit award of any other punishment‑‑‑Where intention of the legislation was clear, the objection as to its being harsh was untenable‑‑Objection was repelled by the Supreme Court as under the principles of trichotomy of powers, .Supreme Court could not encroach upon the field of legislation:

‑‑‑‑S. 10(4)‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss. 7 & 12 & Sched.‑‑ Gang rape‑‑‑Jurisdiction of Special Court‑‑‑Scope‑‑‑Trial of scheduled offence under the provision of S.12 of Anti‑Terrorism Act, 1997 is exclusively vested in the Court constituted under the Anti‑Terrorism Act, 1997.

(d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S. 10(4)‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.7 & 30‑‑‑Criminal Procedure Code (V of 1898), S.374‑‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Gang rape‑‑‑Appeal against conviction‑‑‑Jurisdiction of Federal Shariat Court‑‑‑Gang rape was committed by the accused in the year 1999‑‑Trial of the offence was conducted by the Special Court constituted under Anti‑Terrorism Act, 1997, and, the accused persons were sentenced to death‑‑‑Appeal against the sentence was dismissed by High Court‑‑‑Plea raised by the accused before Supreme Court was that neither the Special Court had jurisdiction to try the offence nor .High Court had any right to hear the appeal because for such matters jurisdiction only vested in the Federal Shariat Court‑‑‑Validity‑‑‑Where the offence was committed after the publication of Anti‑Terrorism Act, 1997, in the Gazette, the jurisdiction to try the offence exclusively vested in the Court constituted under the Anti-Terrorism Act, 1997, and no other Court could take the cognizance of the offence‑‑‑Offence, in the present case, was committed during the night between 21st and 22nd of December, 1999, therefore, the Court constituted under Anti‑Terrorism Act, 1997; had the jurisdiction to try the offence and appeal was maintainable before the High Court on a Reference to be made under S.374, Cr.P.C. which was applicable to the proceedings by virtue of S.30 of the Anti‑Terrorism Act, 1997‑‑‑Conclusion drawn and reasons advanced by the Courts below were not open to any exception showing fair evaluation of the evidence in accordance with the settled principles laid down by Supreme Court governing appraisal of evidence for safe dispensation of justice in criminal cases‑‑‑Supreme Court declined to interfere with the sentence passed by the Courts below‑‑‑Appeal was dismissed.

(e) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S. 10(4)‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Gang rape‑‑Sentence‑‑‑Minor age of accused at the time of committing offence‑‑‑Award of death sentence‑‑‑All the accused persons were sentenced to death on the charge of gang rape, including the present accused who was 13 years old at the time of commission of the offence‑‑‑Validity‑‑‑Supreme Court, after considering such particular aspect of the matter, altered the sentence of death of the accused to imprisonment for five years.

G. N. Gohar, Advocate Supreme Court for Appellant (in Cr.A.No.216 of 2001).

Sardar M. Siddique Khan, Advocate Supreme Court for Appellants (in Cr.As.Nos. 217 of 2000 and J.P. No.38 of 2000).

Tariq Mahmood Khokhar, Addl. A.‑G., Punjab with Ch.M.Akram, Advocate Supreme Court for the State.

Date of hearing: 24th October, 2001.

PLD 2002 SUPREME COURT 781 #

P L D 2002 Supreme Court 781

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

MUHAMMAD SAFDAR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal, No. 189 of 2001, decided on 17‑4‑2002.

(On appeal from the judgment dated 6‑6‑2001 in Criminal Appeal No. 282 of 1996, Murder Reference No. 141 of 1996 and Criminal Revision No. 117 of 1996 passed by the Lahore High Court, Lahore).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(a)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Grave and sudden provocation‑‑‑Proof‑‑‑Ocular account was supported by medical evidence‑‑‑Crime empties matching with the weapon of offence‑‑‑Accused was charged with murder of .his wife on the allegation that the deceased had illicit relations with some other person and on seeing the deceased in indecent manner with her paramour he committed the offence under grave and sudden provocation‑‑‑Place of occurrence was a room located at such a place that the paramour could not escape from there but the only victim of Ghairat was the deceased wife of the accused‑‑‑Medical evidence proved that the deceased was fully clad and was wearing under garments‑‑‑Trial Court disbelieved the defence version and sentenced the accused to death‑‑Ocular version of prosecution witnesses being consistent was believed by the High Court to be confidence‑inspiring and trustworthy which version was corroborated by medical evidence and the evidence of recovery of pistol, empties and report of Forensic Science Laboratory proved the guilt of the accused beyond reasonable doubt‑‑‑Sentence awarded by the Trial Court was maintained by the High Court‑‑‑Validity‑‑‑No misreading or non‑reading of evidence warranting interference with the finding of guilt of the accused was found as the same had been correctly and rightly arrived at by both Courts in accordance with law‑‑‑Plea of grave and sudden provocation was disbelieved by the Courts below on proper appreciation of evidence considering that the plea was not convincing and did not appeal to reason having not been Substainted by any direct or substantial evidence‑‑‑No mitigating circumstances warranting reduction in sentence existed in view of brutal murder by accused of his wife‑‑‑Supreme Court declined interference with the sentence of death awarded by the Courts below‑‑‑Leave to appeal was refused.

The State v. Muhammad Hanif and others 1992 SCMR 2047 distinguished.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(a)‑‑‑Interested witness‑‑‑Evidence of witness related to complainant party‑‑‑Validity‑‑‑Mere relationship would not make a witness an interested witness and testimony of such witness which otherwise seemed to be truthful, could not be rejected on such ground.

‑‑‑‑S. 302(a)‑‑‑Criminal Procedure Code (V of 1898), Ss.342 & 340(2)‑‑Statement of accused‑‑‑Plea of grave and sudden provocation ‑‑‑Effect‑‑Where such plea was raised, the statement of accused should be taken into consideration in entirety and not merely inculpatory part of it to the exclusion of the exculpatory part unless there was other reliable evidence which supplemented the prosecution case.

Talib H. Rizvi, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 17th April, 2002.

PLD 2002 SUPREME COURT 786 #

P L D 2002 Supreme Court 786

Present : Iftikhar Muhammad Chaudhry, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

MUHAMMAD TUFAIL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Petition No. 172 of 2001, decided on 2nd May, 2002

On appeal from the order dated 13‑6‑2001 in Criminal Appeal No.93 of 1996, M.R.No.181 of 1999 (Lhr.) and Murder Reference No. 15 of 1996 (BWP) passed by the Lahore High Court, Lahore).

(a) Fire‑arms and Ballistics‑‑‑

‑‑‑‑Fire from '12 bore gun‑‑‑Dispersion of pellets‑‑‑Natural and mechanical phenomenon‑‑‑Compelling circumstances‑‑‑Dispersion of pellets is to increase with the range but at the same time dispersal of pellets also depends very largely on the individual gun and the charge used in the cartridge‑‑High pressure shot charge spreads more rapidly and low pressure helps to keep it together.

(b) Medical Jurisprudence‑‑‑

‑‑‑‑ Fire‑arm wound‑‑‑Absence of burning and blackening around the wounds‑‑‑Effect‑‑‑Where there was no burning and blackening present around the wound the same itself suggested that shot was fired from longer distance than nearer distance but such fact was also dependant upon the kind and quality of gun powder used in the cartridges and the length of barrel and its diameter at muzzle end.

‑‑‑‑S. 302‑-‑Evidence of eye‑witness‑‑‑Expert evidence‑‑‑Conflicting opinion of doctor/expert‑‑‑Validity‑‑‑When the Court is convinced that the witness has seen the incident and the testimony is worthy of credence, the conflicting opinion of doctor/expert would neither negate or outweigh nor nullify the evidentiary value of witness.

Ghulam Ullah and another v. The State and another 1996 SCMR 1887; Muhammad Hanif v. The State PLD 1993 SC 895; Abdur Rehman v. The State 1998 SCMR 1778 and Yaqoob Shah v. The State PLD 1976 SC 53 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Reappraisal of evidence‑‑‑Sentence‑‑‑Fire‑arm injury‑‑‑Distance between deceased and accused‑‑‑Determination‑‑‑Prosecution witnesses had assigned specific overt act to the accused which was corroborated by medical evidence‑‑‑Neither material discrepancies nor 'contradictions were found between the ocular and medical testimony of the prosecution witnesses‑‑‑Trial Court awarded death sentence to the accused which was maintained by the High Court‑‑Contention of the accused was that the distance stated by the prosecution witnesses was not proved by medical evidence‑‑‑Validity‑‑‑Prosecution witnesses who were either illiterate or semi‑illiterate were not able to indicate the exact distance with scientific exactitude between the deceased and the place from where the `shot was fired‑‑‑Testimony of eve‑witnesses was positive and the witnesses were dependable and natural witnesses‑‑Testimony of the witnesses could not be cast aside, merely on the basis of theoretical opinion‑‑‑High Court and 'had given legal, valid and cogent reasons in arriving at findings with regard to guilt of the accused on the basis of the prosecution evidence which stood proved beyond reasonable doubt‑‑‑Supreme Court declined to interfere with the sentence passed by the Courts below as no extenuating or mitigating circumstances existed for reduction in sentence‑‑ Leave to appeal was refused.

Mir Muhammad and others v. The State 1972 PCr.LJ 1108 distinguished.

Mian Aftab Farrukh, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellant

Mujeebur Rehman, Advocate Supreme Court and Ch Akhtar Ali, Advocate‑on‑Record for the State.

Date of hearing: 2nd May, 2002.

PLD 2002 SUPREME COURT 792 #

P L D 2002 Supreme Court 792

Present: Javed Iqbal, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

MUKHTAR AHMED ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.591 of 2000, decided on 4th April, 2002.

(On appeal from the judgment dated 12‑9‑2000 of the Lahore High Court, Lahore, passed in Criminal Appeal No.936 of 1996).

(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 prosecution was not able to prove motive set up in the F.I.R. and if so what would be its effect on the conviction and sentence of the petitioner; which of the two versions, one that by the prosecution and the other of self‑defence pleaded by the petitioner was more plausible, natural and confidence‑inspiring; and that whether the sentence of death was correctly awarded keeping in view the evidence/material on record and the plea of the petitioner.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Onus to prove ‑‑‑Bounden duty of the prosecution to prove the case beyond any shadow of doubt and the prosecution by no stretch of imagination can be relieved from its duty of proving the case irrespective of the fact whether the accused had succeeded in adducing the probable defence plea or otherwise‑‑‑When some distinct plea was taken as self‑defence, the onus shifted on the accused to prove the existence of those circumstances which culminated into the incident‑‑‑If defence version was not plausible or convincing it could not be made a sole base for conviction and prosecution had to prove its case in all circumstances.

Wali Muhammad v. State 1969 SCMR 612; Shamoon v. State 1995 SCMR 1377; Hakim Ali v. State 1971 SCMR 432; Shaukat Ali and others v. State PLJ 1974 Karachi 106; Rehmat v. State PLD 1977 SC 515; Hukamzad v. State 1969 SCMR 802; Ali Sher v. State PLD 1980 SC 317 and Shamir v. State PLD 1958 SC 242 ref.

‑‑‑‑Ss. 96, 97, 99, 100 & 302‑‑‑Plea of self‑defence ‑‑‑Pre‑conditions‑‑Where the plea of self‑defence is pressed into service it is to be shown as to who was aggressor, by whom the fight was initiated and whether the party by whom the plea of self‑defence has been introduced sustained any injury from the hands of aggressor and on retaliation what was the degree of violence used.

Kala v. State 1987 SCMR 385 ref.

(d) Peal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Reappraisal of evidence‑‑Ocular account corroborated by medical evidence‑‑‑Weapon of offence matched with crime empties‑‑Mitigating circumstances, absence of‑‑Defence version not plausible‑‑‑One of the prosecution witnesses was independent witness having no inter se relationship with the complainant party and as such there was no justification with him to have implicated the accused‑‑‑Presence of independent witness was supported by the fire‑arm injury sustained by him at the place of occurrence‑‑‑Accused admitted in his statement before the Trial Court that there was no previous enmity with the deceased‑‑‑Repart of the Fire‑arm Expert showed that the crime empties recovered from the place of occurrence wedded with the rifle recovered at the instance of the accused‑‑‑Trial Court awarded death sentence to the accused and the same was maintained by High Court‑‑‑Validity‑‑‑When there was no previous enmity between the accused and the deceased, the possibility of false implication was eliminated‑‑Prosecution had established its case beyond shadow of doubt and in absence of mitigating circumstances the alternate plea as agitated on behalf of the accused for reduction of sentence could not be entertained‑‑‑Normal sentence for murder, in the absence of mitigating circumstances, was death‑Supreme Court declined to interfere with the sentence of death awarded by the Courts below.

(e) Penal Code (XLV of 1860)‑‑

‑‑‑‑S.302‑‑‑Motive‑‑‑Requirement‑‑‑Not essential for the prosecution either to allege or prove the motive.

Riaz Hussain v. The State 2001 SCMR 177 rel.

Raja Muhammad Anwar, Senior Advocate Supreme Court and Tanveer Ahmed, Advocate‑on‑Record (absent) for Appellant.

Asghar Ali Chaudhry, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for the Complainant.

Ghulam Ahmed Ch., Advocate Supreme Court for the State.

Date of hearing: 4th April, 2002.

PLD 2002 SUPREME COURT 800 #

P L D 2002 Supreme Court 800

[Shariat Review Jurisdiction]

Present: Sh. Riaz Ahmed, C.J., Munir A. Sheikh, Qazi Muhammad Farooq, Dr. Allama Khalid Mahmood and Dr. Rashid Ahmed Jullundhari, JJ

Civil Shariat Review Petition No. 1 of 2000

UNITED BANK LTD.‑‑‑‑Petitioner

versus

Messrs FAROOQ BROTHERS and others‑‑‑Respondents

(On review from the order, dated 23rd December, 1999 passed in C.Sh. Appeals Nos. 11 to 19 of 1992).

Civil Shariat Review Petition No. l of 2001

MUHAMMAD IQBAL ZAHID‑‑‑Petitioner

versus

Messrs FAROOQ BROTHERS and others‑‑‑Respondents

(On review from the order dated 14th of June, 2001 passed in C.M.A. No.1485 of 2001 in C.Sh. R.P. No.1 of 2000 in Shariat Appeals Nos. 11 to 19 of 1992).

Civil Shariat Review Petitions Nos. l of 2000 and 1 of 2001, decided on 24th June, 2002.

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

‑‑‑‑Art.203‑F(3)(b)‑‑‑Appointment of ad hoc members of the Shariat Appellate Bench of the Supreme Court‑‑‑Question of such appointment cannot be raised collaterally‑‑‑Appointees being recognized scholars and on the panel of Ulema and their appointment meeting the requirements of Art.203‑F(3)(b) of the Constitution, objection against their appointment was repelled by the Supreme Court.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Arts. 203‑F & 188‑‑‑Review of the judgment of Shariat Appellate Bench of the Supreme Court wherein it was declared that Riba in all its forms and manifestations was prohibited by the Holy Qur'an and Sunnah and in consequence certain relevant laws were held to have ceased to have effect from 31‑3‑2000 and further suggesting measures in the judgment for transformation of the existing banking and economic system to the Islamic one‑‑‑Validity‑‑‑Case for review of the impugned judgment was made out as there were errors floating on the surface of record as highlighted (in the present order) and there was no force in the contention that the submissions made in support of the review petition amounted to a plea for rehearing the case‑‑‑Issues involved in the cases required to be redetermined after thorough and elaborate research and comparative study of the financial systems which were prevalent in the contemporary Muslim countries of the world‑‑‑Federal Shariat Court having not given a definite finding on all the issues involved, the determination whereof was essential to the resolution of the controversy in the cases, it would be in the fitness of things if the matter was remanded to the Federal Shariat Court which under the Constitution was enjoined upon to give a definite finding on all the issues falling within its jurisdiction‑‑Supreme Court set aside the impugned judgments and remitted the cases to the Federal Shariat Court for determination afresh in the light of the contentions of the parties noted in the present order and observations made therein which were germane to the controversy‑‑‑Parties, besides the points raised before the Appellate Shariat Bench of the Supreme Court, would be at liberty to raise any other issue relevant to the cases and the Federal Shariat Court may also, on its own motion, take into consideration any other aspect which may arise or may be found relevant for determination of the issues involved herein.

Al‑Qur'an: Verses 2.262‑282; 3: 130; 12:108; 18:49‑50; 25:73‑75; 30:39; 34:46; 73:20; Tarjaman‑ul‑Qur'an by Maulana Abul Kalam Azad; Tafseer‑ul‑Qur'an by Sir Syed Ahmed Khan; Ma'arif‑ul‑Qur'an by Mufti Muhammad Shafi; Book XIV on Sale, Chap. VIII on Riba or Usury'; Hedaya, English Translation by Hamilton, Lahore, p.289 and Tafsir al Kabir by Imam Fakhrud‑Din Al‑Razi (d.606 A.H.) ref.

Raja Muhammad Akram, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner (in C.Sh.R.P. No. l of 2000).

Muhammad Ismail Qureshi, Sh. Khizar Hayat, Ch.Abdul Rehman, Advocates Supreme Court, Maroof Shah Sherazi, Advocate (Special permission) and Faiz‑ur‑Rehman, Advocate‑on‑Record (absent) for Petitioner (in C.Sh. R. P. No. l of 2001).

Makhdoom Ali Khan; Attorney‑General for Pakistan, Syed Riazul Hasan Gilani, Senior Advocate Supreme Court, Raza Kazim, Advocate Supreme Court, Mohsin Raza, Advocate Supreme Court, Ali Kazim, Advocate Supreme Court, Amir Hani Muslim, Advocate Supreme Court Syed M. Ayub Bokhari, Advocate Supreme Court, Khurram Hashmi. Advocate Supreme Court (by Special Permission), Raja Abdul Ghafoor and Mehr Khan Malik, Advocates‑on‑Record for Respondents Nos. 8, 10, 19 and 34 (in C.Sh.R.P. No. l of 2000).

M.A. Farani, Advocate Supreme Court for Respondent No. 17.

Hashmat Ali Habib, Advocate Supreme Court and Engineer Muhammad Saleemullah for Jamiat Ulema‑e‑Pakistan.

Dates of hearing: 6th, 7th, 13th, 14th and 17th to 22nd June, 2002.

PLD 2002 SUPREME COURT 816 #

P L D 2002 Supreme Court 816

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

FIDA ULLAH‑‑‑Petitioner

versus

SECRETARY, (SETTLEMENT AND REHABILITATION) SETTLEMENT COMMISSIONER (URBAN LAND). PUNJAB, BOARD OR REVENUE, PUNJAB and others ‑‑‑ Respondents

Civil Petition for Leave to Appeal No.216‑L of 1999, decided on 23rd May, 2002.

(On appeal from judgment of the Lahore High Court, Lahore dated 30‑11‑1998 passed in Writ Petition No.81‑R of 1998).

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Disputed question of fact‑‑‑Findings of fact recorded by a Tribunal, howsoever high, were neither immune from judicial review nor sacrosanct‑‑‑Superior Courts, generally do not embark upon themselves .the duty of making roving enquiries into disputed questions of fact‑‑‑Where, however, the facts were admitted and the functionaries had arrived at divergent findings in the background of factual aspects, High Court was always within its jurisdiction to determine as to which of the functionaries decided the case rightly.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Arts. 199 & 185(3)‑‑‑Constitutional petition before High Court under Art. 199 of the Constitution‑‑‑High Court, by not accepting petitioner's after thought and manoeuvred plea founded on manipulated documents end upholding the order of the lower forum passed in consonance with the letter and spirit of Supreme Court's directive, neither committed any illegality nor material irregularity warranting interference by Supreme Court‑‑‑Petition for leave to appeal against order of the High Court was dismissed. Murree‑Brewery.,Co. Ltd. v. Pakistan PLD 1972 SC 279 and Rahim Shah v. Chief Election Commissioner OLD 1973 SC 24 not relevant.

‑‑‑‑Arts. 185‑‑‑Appeal ‑to Supreme Court‑‑‑Mixed question of law and fact, not raised before the forums below, cannot be raised, for the first time, before Supreme Court in the exercise of its Constitutional jurisdiction.

Abdul Ghaffar v. Azizuddin 1968 SCMR 662; Muhammad Hussain Munir v. Sikandar PLD 1974 SC 139 and Irshad Ahmad v. Settlement Authority 1981 SCMR 758 ref.

(d) Constitution of Pakistan (1973)‑‑

‑‑‑‑Arts. 185‑‑‑Appeal to Supreme Court‑‑‑Party cannot be permute to raise a contention involving an enquiry into facts for the first time before the Supreme Court.

Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690; Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Muhammad Chiragh v. Muhammad Ali Khan 1983 SCMR 432; Umar Hayat v. Deputy Settlement Commissioner‑I, Lahore 1992 CLC 530; Fateh Muhammad X Hajra 1999 CLC 143 and Mst. 'Mukhtar Begum v. Ala‑ud‑Din 1999 SCMR 914 distinguished.

Hamad v. Khushi Muhammad 1971, SCMR 365; Muhammad Sadiq v. Commissioner, Rawalpindi Division 1973 SCMR 422; Said Quresh v: Ghafia Begum 1974 SCMR'528; Mad Ajab v. Awal Badshah 1984 SCMR 440; Miraj Sons v. United Bank Ltd. 1985 SCMR 987; Shah Sultana v. Shaukat Ali 1985 SCMR 1568; Neelam Mawaz v. State PLD 1991 SC 640 and Zeenat Manufacturing (Pvt.) Ltd. v. Secretary Survey and Rebate C. B. R. 1999 SCMR 979 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑High Court, while hearing Constitutional petition does not enter into an enquiry of facts.

Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690; Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Muhammad Chiragh v. Muhammad Ali Khan 1983 SCMR 432; Umar Hayat v. Deputy Settlement Commissioner‑I, Lahore 1992 CLC 530; Fateh Muhammad v. Hajra.1999 CLC 143 and Mst. Mukhtar Begum v. Ala‑ud‑Din 1999 SCMR 914 distinguished.

Hamad v. Khushi Muhammad 1971 SCMR 365; Muhammad Sadiq v. Commissioner, Rawalpindi Division 1973 SCMR 422; Said Quresh v. Ghafia Begum 1974 SCMR 528; Mad Ajab v. Awal Badshah 1984 SCMR 440; Miraj Sons v. United Bank Ltd. 1985 SCMR 987; Shah Sultana v. Shaukat Ali 1985 SCMR 1568; Neelam Mawaz v. State PLD 1991 SC 640 and Zeenat Manufacturing (Pvt.) Ltd. v. Secretary Survey and Rebate C. B. R. 1999 SCMR 979 ref.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 185(3)‑‑‑Petition for leave to appeal‑‑‑Settlement Commissioner, by complying with the directions of Supreme Court, had neither acted illegally nor did the impugned judgment of the High Court upholding the same suffered from any legal flaw or jurisdictional defect or error‑‑‑Petition for leave to appeal being without any force and substance was dismissed by the Supreme Court.

Rawalpindi Central Cooperative' Bank Ltd. v. Custodian, Evacuee Property PLD 1973 Lah. 230; Hidayat Ullah v. Deputy Commissioner/Additional Settlement Commissioner 1976 SCMR 243 and Abdul Ghafoor v. Chief Settlement Commissioner' 1985 SCMR 464 not relevant.

A.K.Dogar, Advocate Supreme Court for Petitioner.

Nemo for Respondents Nos. 1 to 7.

Respondent No.8 in person.

Date of hearing: 8th May, 2002.

PLD 2002 SUPREME COURT 823 #

P L D 2002 Supreme Court 823

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

JUMA KHAN and others‑‑‑Petitioners

versus

Mst. BIBI ZENABA and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.639 of 2000, decided on 20th May. 2002.

(On appeal from judgment of Peshawar High Court, Abbottabad Bench dated 29‑11‑1999 passed in C. R. No. 117 of 1996).

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 100‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Presumption as to sale‑deeds‑‑‑Alleged deeds were written on plain paper; full description of scribe and marginal witnesses were not given; receipts were never acted upon by persons claiming under them; alleged scribe and marginal witnesses were not produced nor were they proved to be dead; only one person who could not identify his signatures on the alleged receipts, was produced; both the deeds reflecting transfer of land were, thus discarded and no presumption under Art. 100 of Qanun‑e‑Shahadat, 1984 was drawn by all the Courts below‑‑‑Plea raised on behalf of the petitioners that the suit was barred by time was also rejected for sound and cogent reasons holding that the case being related to right of inheritance to ancestral property, question of limitation did not arise in such an eventuality‑‑‑ Petition for leave to appeal against the judgments of Courts below was dismissed by the Supreme Court.'

(b) Limitation‑

‑‑‑‑Case related to right of inheritance to ancestral property‑‑‑Question of limitation would not arise.

‑‑‑‑O. XX, R.1(2)‑‑‑Constitution of Pakistan (1973), Art.254‑‑‑Judgment when pronounced‑‑‑Provisions of O.XX, R.1(2) are directory in nature and do not provide for consequences in case it is not strictly adhered to‑‑Rule 1(2) of O.XX, C.P.C. is in the nature of guiding principle for the Courts to which C.P.C. is made applicable and must be kept in mind while reserving a case for judgment‑‑‑Question as to what will be the reasonable period for pronouncing judgment in a particular case will depend on the facts of each case and the legal points involved therein‑‑‑No general principle of universal application can be laid down‑‑‑Where no prejudice was caused to the party by reason of delay in pronouncement of the judgment, contention that the High Court announced the judgment after more than five months in violation of OXX, R.1(2), C,P.C. was inconsequential having no material bearing on the merits of the case

Once the arguments are concluded before a Court of law, it is expected that judgment must be announced within a reasonable period and without unnecessary delay. No doubt, Order XX, rule 1(2), C.P.C. stipulates that the Court shall after the case has been heard, pronounce judgment in open Court, either at once or on some future day not exceeding thirty days, for which due notice shall be given to the parties or their Advocates, the fact remains that provision on the face of it, is directory in nature as it does not provide for consequences in case it is not strictly adhered to. It is in the nature of a guiding principle for Court to which C.P.C. is made applicable. The rule must be kept in mind while reserving a case for judgment.

The question as to what will be reasonable period for pronouncing judgment in a particular case will depend on the facts of each case and the legal points involved therein. No general principle of universal application can be laid down. No prejudice has been caused to the petitioners in the present case, by reason of delay in pronouncement of the impugned judgment and the rule is merely directory, the contention that High Court announced the judgment after mote than five months in violation of Order XX, rule 1(2), C.P.C. is inconsequential having no material bearing on the merits of the case. Even under Constitutional dispensation, the case in hand is covered by Article 254 of the Constitution.

No inflexible rule of law prescribing a period can be laid down for the pronouncement of a judgment after conclusion of the arguments. It would always be just and proper to pronounce the judgment within a reasonable period after notice to the parties. Merely because of delay in pronouncement of judgment, decision itself is not vitiated.

Muhammad Bakhsh v. State 1989 SCMR 1473; Ali Khan Subahpoto v. Federation of Pakistan 1997 SCMR 1590; S.K. Lodhi v. Claims Commissioner PLD 1968 Lah. 1311; Bashir Ahmed Khan v. Mumtaz Begum 1979 CLC 114; Muhammad Ibrahim v. Sindh Industrial Trading Estate Ltd. PLD 1985 Kar. 95 and Mahmud Ahmed v. Azad Government of the State of Jammu and Kashmir PLD 1987 SC (AJ&K) 21 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 254‑‑‑Civil Procedure Code (V of 1908), O.XX, R.1(2)‑‑Pronouncement of judgment by Court‑‑‑Judgment cannot be declared to be invalid or to have been passed without lawful authority simply because the pronouncement was delayed for which no specific period can be prescribed under law.

S.K. Lodhi v. Claims Commissioner PLD 1968 Lah. 1311; Bashir Ahmed Khan v. Mumtaz Begum 1979 CLC 114; Muhammad Ibrahim v. Sindh Industrial Trading Estate Ltd. PLD 1985 Kar. 95 and Mahmud Ahmed v. Azad Government of the State of Jammu and Kashmir PLD 1987 SC (AJ&K) 21 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 185‑‑‑Appeal to Supreme Court‑‑‑Question of fact not raised before the lower forums and more .particularly before the High Court, cannot be allowed to be raised, for the first time, before the Supreme Court.

Arshad Ali Chaudhry, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 20th May, 2002.

PLD 2002 SUPREME COURT 830 #

P L D 2002 Supreme Court 830

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

Mst. TAHIRA ALMAS and another‑‑‑Petitioners

versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Interior, Islamabad, and another‑‑‑Respondents

Civil Petition for Leave to Appeal No.317 of 2001, heard on 22nd May, 2002.

(On appeal from judgment dated 28‑11‑2000, of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Writ Petition No.380 of 1989).

Per Syed Deedar Hussain Shah, J. Rana Bhagwandas J. agreeing‑

(a) Constitution of Pakistan (1973)‑

‑‑‑‑Arts. 199 & 270‑A‑‑‑Protection provided by Art.270‑A of Constitution of Pakistan (1973)‑‑‑Extent‑‑‑Constitutional jurisdiction of High Court under Art.199 of the Constitution‑‑‑Scope‑‑‑Article 270‑A, Constitution of Pakistan does‑ not take away the jurisdiction of the High Court from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice.

Article 270‑A of the Constitution provides, protection o all laws made between the 5th day of July, 1977 to 30th December, 1985.

Article 270‑A of the Constitution does not take away the jurisdiction of the High Court from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or mala fide.

Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26 ref.

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

‑‑‑‑Arts. 199 & 270‑A‑‑‑Penal Code (XLV of 1860), S.420‑‑‑Martial Law Order (C.M.L.A.'s] No.4‑‑‑Constitutional petition before High Court‑‑Laches‑‑‑Father (deceased) of the petitioner faced prosecution before Summary Military Court constituted under M.L.O. No.4 (1977) which Court after going through the entire evidence, convicted the accused in 1984 which conviction he served out‑‑‑No mala fide, or malice towards the Courts was attributed by the convict then and he did not agitate the matter before the High Court during his lifetime but after his death when the Authorities concerned took necessary steps for recovery of the amount of fine etc. out of the estate left by him, his legal heirs approached the High Court in 1989 by filing Constitutional petition‑‑Validity‑‑‑Deceased father of the petitioner was convicted by Summary Military Court in 1984 and after five years of his conviction Constitutional petition was filed by his heirs‑‑‑Constitutional petition which was barred by time for which no plausible explanation had been given in the application for condonation of delay was rightly dismissed by the High Court on merits and ground of laches as Courts always help the vigilant who approaches the Court in time, but not the person, who was negligent in pursuing his matter.

Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26 ref.

Per Rana Bhagwandas J. agreeing with Syed Deedar Hussain Shah, J.‑

‑‑‑‑Art. 270‑A‑‑‑Martial Law Order (C.M.L.A.'s) No.4‑‑‑Military Courts constituted under M.L.R. No.4‑‑‑Scope of authority and jurisdiction‑‑Exceptions‑‑Military Courts comprising of Special Military Courts and Summary Military Courts were constituted under the provisions of Martial Law Order No.4 and their scope of authority and jurisdiction was defined in various Martial Law Orders and Regulations which remained on the statute book and were given a complete blanket cover by Constitution (Eighth Amendment) Act, 1985, Art.270 was a pointer on the subject‑‑‑Only exception to the judgments and convictions recorded by Military Courts was where such Court acted without jurisdiction, beyond its jurisdiction or where the judgment passed was coram non judice, void ab initio and/or prompted by mala fides‑‑‑Barring such class of cases actions taken, acts performed, decisions made, judgments rendered, punishments recorded and liabilities incurred were protected under the Constitutional dispensation validated by Parliament, which came into being after General Elections held in 1985.

Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 270‑A‑‑‑Bar of jurisdiction contemplated by Art.270‑A of the Constitution‑‑‑Extent‑‑‑Constitutional jurisdiction of High Court under Art.199 of the Constitution‑‑‑Scope‑‑‑Bar of jurisdiction contemplated by Art.270‑A, Constitution of Pakistan (1973), in relation to the actions taken under various Presidential Orders/Ordinances, Martial Law Regulations, Martial Law Orders etc. was neither absolute nor inflexible‑‑‑High Court had jurisdiction to examine and enquire into the vires of the convictions rendered by Military Courts and to adjudicate whether the exercise of power was within the four corners of the statute creating such Courts‑‑‑If High Court had come to the conclusion that the jurisdiction was exercised without Jurisdiction, in excess of authority or the judgment rendered was coram non judice or void ab initio, High Court's Jurisdiction in terms of Art. 199 of the Constitution would remain intact.

(e) Administration of justice‑‑

‑‑‑‑ Laches‑‑‑Courts always help the vigilent, who approaches the Court in time, but do not help the person, who is negligent in persuing his matter

Muhammad Akram Khan v. Islamic Republic of Pakistan 15LD 1969 SC 174 and State v. Zia‑ur‑Rehman PLD 1973 SC 49 ref.

Muhammad Sarwar v. State 1982 PCr.LJ 929; Muhammad Ishaq v. State 1992 PCr.LJ 1273; Ch. Ghulam Qadir v. President, Summary Military Court 1992 PCr. LJ 1461; Muhammad Aslam v. State NLR 1992 Cr. LJ 482 and Muhammad Rafiq v. State NLR 1992 Cr.LJ, 483 mentioned.

Petitioner No.2 in person.

Nemo for Respondents.

Date of hearing: 22nd May, 2002.

PLD 2002 SUPREME COURT 837 #

P L D 2002 Supreme Court 837

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

AHMED NABI‑‑‑Petitioner

versus

Mst. NASREEN AKHTAR and 9 others‑‑‑Respondents

Civil Petition for Leave to Appeal No.447‑K of 2002, decided on 17th May, 2002.

(On appeal from the order dated 25‑1‑2002 passed by the High Court of Sindh, Karachi in Constitutional Petition No.D‑74 of 2002).

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

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bona tide personal need of landlord‑‑Landlords in the ejectment application had specifically stated that the property in question was required for their personal use in good faith‑‑‑Landlords for whose personal use the premises were required had filed their affidavit‑in‑evidence and stated that they intended to carry on business in the premises‑‑‑Evidence of the landlords with regard to their bona tide personal use had not been shaken in cross‑examination‑‑‑Trial Court, Appellate Court and the High Court had considered the evidence on record very carefully ‑‑‑Effect‑‑‑Ejectment application had been tiled by the landlords for their personal bona fide need for which they had produced sufficient evidence which was rightly believed by the Trial Court which findings were not disturbed by the Appellate Court and the High Court‑‑‑No misreading or non‑reading of material evidence in the judgment of the High Court having been found, which was based on cogent and sound reasons, petition for leave to appeal against order of the High Court was dismissed by the Supreme Court .

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

‑‑‑.‑Ss. 15 & 21(3)‑‑‑Civil Procedure Code (V of 1908), O.XLI, R.27‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Ejectment application‑‑‑Bona tide personal need of landlord‑‑‑Appeal‑‑‑Application for production of additional evidence at appellate stage‑‑‑Contention of the tenant was That the Appellate Court and the High Court had erred in not giving due consideration to the application under O.XLI, R.27, C.P.C. read with S.21(3) of the Sindh Rented Premises Ordinance, 1979 under which the statement of the landlords confirmed letting out the shops to the tenants and thereby acted illegally and that the Courts below failed to consider the case in its proper perspective, inasmuch as nowhere in the ejectment application bona fide personal requirement of the landlords in good faith for business purpose was pleaded and the evidence adduced was not sufficient‑‑Validity‑‑‑Memo. of writ petition filed by the tenant before the High Court did not show specific, pleas about application under O.XLI, R.27, C.P.C. High Court, therefore, rightly did not consider that aspect of the case‑‑Tenant, at such belated stage could not be allowed to raise said pleas before Supreme Court which was not seriously agitated both before the Appellate Court and the High Court‑‑‑Petition for leave of appeal against the judgment of High Court was dismissed by the Supreme Court.

Hafiz Abdul Baqi, Advocate Supreme Court/Advocate‑on‑Record for Petitioner

Nemo for Respondents.

Date of hearing: 17th May, 2002.

PLD 2002 SUPREME COURT 841 #

P L D 2002 Supreme Court 841

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ

MUHAMMAD MUSHTAQ‑‑‑Petitioner

versus

MUHAMMAD ASHIQ and others‑‑‑Respondents

Civil Petition No.3390‑L of 2001, decided on 6th June, 2002.

(On appeal from the order dated 2‑10‑2001 passed by the Lahore High Court, Lahore in‑Writ Petition No. 17841 of 2001).

(a) Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑Preamble‑‑‑Object‑‑‑Anti‑Terrorism Act, 1997 was brought into force for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences for matters connected therewith and incidental thereto.

(b) Anti‑Terrorism (XXVII of 1997)‑‑‑

‑‑‑‑S. 6(1)‑‑‑Terrorist act‑‑‑Criterion to determine‑‑‑Where a criminal act was designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquillity of the society, the same may be treated to be a terrorist act‑‑‑Principles.

Ordinary crimes are not to be dealt with under the Anti‑Terrorism Act. A physical harm to the victim is not the sole criterion to determine the question of terrorism. What is to be seen is the psychological effect produced by the violent action or with the potential of producing such an effect on the society as a whole or a section thereof. There may be a death or injury caused in the process. Thus where a criminal act is designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquillity of the society, the same may be treated to be a terrorist act. There may be just a few killings, random or targeted, resorted to with single‑mindedness of purpose. But nevertheless the impact of the sane may be to terrorise thousands of people by creating a panic or fear in their minds.

‑‑‑‑S. 6(1)‑‑‑Penal Code (XLV of 1860), Ss.302/ 148/ 149‑‑‑Terrorist Occurrence took place during the peak hours of the day on the busy Road of a big city wherein four persons, while on their way to attend the Court, were allegedly murdered by the use of kalashnikovs‑‑‑Cumulative fall‑out of the occurrence as to the time, place and manner of the act created a sense of fear and insecurity in the Society‑‑‑Court had to advert to the terrorizing effect of the occurrence created on the minds of the people at large and of the concerned locality and passers‑by who had no means to ascertain the background or motive for the crime or the enmity of the parties inter se‑‑‑Present case was, therefore, triable by the Court established under the Anti‑Terrorism Act, 1997 in view of its peculiar facts and circumstances as also the law and order situation prevailing in the country.

Ziaullah v. The Special Judge, Anti‑Terrorism Court, Faisalabad and 7 others Civil Petition No.3430‑L of 2001 ref.

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

‑‑‑‑S. 38‑‑‑Punishment for terrorist act committed before the promulgation of Anti‑Terrorism Act, 1997‑‑‑Where a person had committed an offence before the commencement of the Act, which if committed after the date on which the Act came into force would constitute a terrorist act, he shall be tried by the Court constituted under the Act but shall be punished as authorized by law prevailing at the time when offence was committed.

M.A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Petitioner.

Muhammad Iqbal Bhatti, Advocate Supreme Court for Advocate-General, Punjab for Respondents.

Date of hearing: 6th June, 2002.

PLD 2002 SUPREME COURT 845 #

P L D 2002 Supreme Court 845

Present: Javed Iqbal and Tanvir Ahmad Khan, JJ

ALLAH DITTA KHAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondents

Criminal Petitions Nos. 86 to 89‑L of 2002, decided on 28th May, 2002.

(On appeal from the order dated 14‑1‑2002 passed by Lahore High Court, Lahore, in Cr.Misc. No. l of 2001 in Cr. Appeals Nos. 2080 to 2083 of 2001).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 426‑‑‑Application for suspension of sentence pending appeal‑‑‑Not mandatory, obligatory or bounden duty of the Court to examine the case on merits or dilate upon the contentions as agitated, in depth while deciding application under S.426, Cr.P.C.‑‑‑Discretion has to be exercised by the Court judiciously by considering the relevant facts without entering or commenting upon the merits of the case‑‑‑If the contentions raised, required consideration of merits, Court would refrain from entertaining such contentions‑‑‑Appellate Court to confine itself to impugned judgment and if in its view, the same suffered from any legal error, then it would be justified to suspend the sentence and grant bail to accused‑‑‑Principles‑‑‑High Court had exercised its discretion judiciously while exercising its power under S.426, Cr.P.C., Supreme Court declined interference.

It was not mandatory, obligatory and bounden duty of the High Court to have examined the case on merits and should have dilated upon the contentions as agitated in depth while deciding application under section 426, Cr.P.C. for the simple reason that appraisal of evidence in depth is neither warranted nor desirable while, dilating upon and deciding such application. A Court should confine itself to the judgment assailed before it. A thorough scrutiny of evidence and its evaluation should be made while adjudicating upon the appeal as it would be opportune moment for doing so and not while deciding the application moved under section 426, Cr.P.C. as it would be a premature stage. A conviction cannot be set aside while exercising jurisdiction as conferred under section 426, Cr.P.C. on the grounds with reference to evidence and merits of the case which certainly require a thorough probe and deeper scrutiny of evidence which should be avoided. The discretion has to be exercised judiciously by considering the relevant facts without entering into or commenting upon the merits of the case. If the contention raised requires consideration of merits, the Appellate Court would refrain from entertaining such contentions. At this stage, the Court cannot enter into a re‑appraisal of evidence which should be considered at the time of hearing of the appeal. Where on perusal of the facts in the judgment impugned, the Court comes to the conclusion that the judgment suffers from any legal error, it would be justified to suspend the sentence and grant the bail. In this regard the reasonable and legal views expressed by the trial Court should be given due consideration and weight, but all attempts should be made neither to reappraise the evidence nor to enter into the merits of the case.

High Court is not required to give elaborate reasoning to avoid the possibility of prejudice. The discretion exercised by the High Court cannot be interfered with even where the reasoning was not given altogether. In the present case the order impugned is brief but comprehensive which is indicative of the fact that tentative assessment of the relevant record and evidence has been made. Where the High Court has exercised its discretion judiciously while exercising its power under section 426, Cr.P.C. Supreme Court does not interfere unless the circumstances are altogether of an exceptional character. In the present case the High Court had exercised its discretionary powers under section 426, Cr.P.C. which was not liable to be challenged before the Supreme Court subject to certain exceptions which were lacking in this case.

Bashir Ahmad v. Zulfiqar PLD 1992 SC 463; Muhammad Ashraf v, The State 1971 SCMR 183; Noor Abdullah and another v. The State 1981 SCMR 859; Jamshed Azam v. The State 1990 SCMR 1393; Mussaddiq Hussian Shah v. The State 1985 SCMR 1879; Ashiq v. Sajjad Ahmad 1970 SCMR 540 and Yousaf v. The State 1981 SCMR 958 ref.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court liar Petitioner (in all petitions).

Nasim Saber Ch. Additional Advocate‑General and Mian Abdul Qayyum, Advocate Supreme Court for the State.

Date of hearing: 20th May, 2002.

PLD 2002 SUPREME COURT 849 #

P L D 2002 Supreme Court 849

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

BASHIR AHMAD and others‑‑‑Petitioners

versus

RESIDENT MAGISTRATE, UCH SHARIF, TEHSIL AHMADPUR EAST, DISTRICT BAHAWALPUR and others‑‑‑Respondents

Civil Petition No.472‑L and Civil Petition No.797‑L of 1999, decided on 13th May, 2002.

(On appeal from the judgment/order dated 6‑4‑1999 passed by Lahore High Court, Bahawalpur Bench in I.C.A. No.49 of 1998(BWP).

Punjab Local Government Ordinance (VI of 1979)--

‑‑‑‑S. 122(3)‑‑‑West Pakistan Urban Rent Restriction Ordinance (IV pf 1959), Ss.3, 13‑A & 23‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Transfer of property by the Government‑‑‑Municipal Committee inducted the respondents as its tenants in a Municipal market on monthly rent‑‑‑Municipal Committee, later on, vide resolution of the Committee decided to dispose of the shops in possession of the respondents and simultaneously in pursuance of the same resolution leasehold rights of respondents in the shops which were in their possession, were cancelled‑‑‑Property in question accordingly was sold to the petitioners and Municipal Committee took over the possession from the respondents in purported exercise of jurisdiction under S.122(3) of the Punjab Local Government Ordinance, 1959‑‑‑High Court found that relationship of landlord and tenant existed between the Municipal Committee and the respondents and the matter would be governed by the West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Validity‑‑‑Leave to appeal was granted by the Supreme Court to examine, inter alia, the following contentions raised by the parties.s That the observation of the High Court namely that the parties' rights shall be governed by the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 was incorrect because under section 3 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Provincial Government had issued a notification, dated 27th October, 1967 to the effect that the provisions of Ordinance, 1959 shall not apply to those buildings or lands which belonged to local bodies administered areas and which were used for commercial purposes; that under section 122(3) of the Punjab Local Government Ordinance, 1979, Municipal Committee after having cancelled the tenancy rights of respondents had jurisdiction to take over the possession of the shops from them because despite of serving notice upon them, they were not agreeing to hand over its possession: that exemption granted by the Provincial Government under section 3 of the West Pakistan Urban Rent Restrictions Ordinance, 1959 with regard to non‑application of the Ordinance upon the property belonging to the Municipal Committee etc. in pursuance of notification, dated 27th October, 1967 shall not be applicable because presently the Municipal Committee was not owner of the property as property vested in the petitioners who had purchased the same, therefore, it was incumbent upon them to have at6rned the respondents under section 13‑A of the West Pakistan Urban Rent Restriction Ordinance, 1959 to be their tenants etc. and thereafter petitioners might have sought ejectment of the respondents under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 and that because the property was not owned by the Municipal Committee, therefore; it had no jurisdiction to exercise powers under section 122(3) of the Punjab Local Government Ordinance, 1979 for the purposes of dispossessing the respondents from their lawful occupation.

Saeed‑ur‑Rehman Farrukh, Advocate Supreme Court and Syed Abul Aasim lafri, Advocate‑on‑Record for Petitioners (in C. P. No.472 of 1999).

Rana Sardar Muhammad, Q.M. Saleem, Advocates Supreme Court and Mahmood‑ul‑Islam, Advocate‑on‑Record for Respondents Nos. 5 and 7 (in C. P. No.472‑L of 1999).

G.N. Gohar, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Respondent No.6 (in C.P. No.472‑L of 1999).

Date of hearing: 13th May, 2002.

PLD 2002 SUPREME COURT 853 #

P L D 2002 Supreme Court 853

Present: Sh. Riaz Ahmed, C. J., Munir A. Sheikh, Iftikhar Muhammad Chaudhry, Qazi Muhammad Farooq, Mian Muhammad Ajmal, Seed Deedar Hussain Shah, Hamid Ali Mirza, Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

Qazi HUSSAIN AHMAD, AMEER JAMAAT‑E‑ISLAMI PAKISTAN and others‑‑‑Petitioners

versus

General PERVEZ MUSHARRAF, CHIEF EXECUTIVE and others‑‑‑Respondents

Constitutional Petitions Nos. 15, 17 to 24 and Civil Petition No.512 of 2002, decided on 27th April, 2002.

(a) Referendum Order [Chief Executive's Order No.12 of 2002]‑‑‑

‑‑‑‑Arts. 3 & 4‑‑‑Provisional Constitution Order [1 of 1999]‑‑‑Proclamation of Emergency dated 14‑10‑1999‑‑‑Proclamation of Emergency (Amendment) Order [Chief. Executive's Order 2 of 2001]‑‑‑President's Succession Order [Chief Executive's. Order 3 of 2001]‑‑‑Constitution of Pakistan (1973), Art. l84(3)‑‑‑Constitutional petition before Supreme Court‑‑‑Legality and vires of Referendum Order, 2002 on the Constitutional plane as well as on the touchstone of the Supreme Court verdict in Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869‑‑Contentions of the petitioners were that despite the validation of the Proclamation of Emergency dated 14‑10‑1999 and the Provisional Constitution Order, 1999 by the Supreme Court of Pakistan, Constitution of Pakistan (1973) still remained the supreme law of the land as laid down in Syed Zafar Ali Shah's case and the powers of the present Government were strictly circumscribed in the case of Syed Zafar Ali Shah; that at the present the grund norm of the country being the Constitution of Pakistan (1973) and the judgment of Supreme Court in Syed Zafar Ali Shah's case, the vires of the Referendum Order, 2002 had to be examined on the touchstone of the relevant provisions of the Constitution of Pakistan (1973) as well as the law laid down in Syed Zafar Ali Shah's case; that the Referendum Order, 2002 be declared illegal, ultra vires the Constitution of Pakistan (1973) and violative of the law laid down by Supreme Court in Syed Zafar Ali Shah's case; that Chief Executive had unlawfully occupied and taken over the position of the President of Pakistan in violation of the Supreme Court judgment in Syed ZafarAli Shah's case, that the former President or Pakistan still continued to be the President notwithstanding the President's Succession Order, 2001: that writ in the nature of quo warranto be issued against the chief Executive and that the holding of Referendum for election to the office of the President be declared illegal, un‑Constitutional and violative of the judgment of Supreme Court in Syed Zafar Ali Shah's case ‑‑‑Validity‑‑Proclamation of Emergency (Amendment) Order [Chief Executive's Order No. 2 of 2001] and President's Succession Order [Chief Executive's Order No.3 of 2001] had been validly issued by the Chief Executive of Pakistan in exercise of his powers under the Proclamation of Emergency dated 14‑10‑1999 and the Provisional Constitution Order, 1999 as validated by Supreme Court in Syed Zafar Ali Shah's case PLD 2000 SC 869 and former President of' Pakistan continued in office under the Provisional Constitution Order, 1999‑‑‑Referendum Order, 2002 was issued by the Chief Executive and the President of Pakistan in exercise of the powers conferred upon him by Supreme Court in Syed Zafar Ali Shah's case PLD 2000 SC 869 wherein the Supreme Court had validated the Proclamation of Emergency dated 14‑10‑1999 and Referendum Order, 2002 did not have the effect of amending the Constitution of Pakistan (1973) Supreme Court observed that questions with regard to the consequences flowing from the holding of Referendum under the Referendum Order, 2002 were purely academic, hypothetical and presumptive in nature and were not capable of being determined. at the, present juncture‑‑‑Supreme Court, accordingly declined to go into said questions at the present stage and left the same to be determined at a proper forum at the appropriate time‑‑‑No case for issuing the writ of quo warranto. as prayed for having been made out, relief was declined by the Supreme Court and the Constitutional petitions were disposed of being premature.

(b) Referendum Order [Chief Executive's Order‑No. 12 of 2002]‑‑‑

‑‑‑Constitution of Pakistan (1973), Art. 184(3)‑‑‑Constitutional petition under Art. 184 of the Constitution before Supreme Court‑‑‑Legality and vires of Referendum Order, 2002, on the constitutional plane as well as on the touchstone of the Supreme Court verdict in Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869‑‑‑Supreme Court before proceeding to adjudicate the controversy arising in the present constitutional petition, while tracing the political and constitutional history of Pakistan, and noting down the series of crises and turmoils taking place in the country in the past, observed that people of Pakistan, after 54 years of the creation of their country, were again at the crossroads and had miserably failed to evolve a system of governance, transfer of power and to follow the Constitutional path for achieving the welfare of the people and establishment of democratic institutions as envisaged by the Constitution‑‑‑ Such situation was not a crises but a dilemma, therefore, while deciding the present constitutional petitions Court had to recall the series of crises and turmoils which the Supreme Court had to deal with on all those occasions.

‑‑‑Preamble‑‑‑Provisional Constitution Order [1 of 1999]‑‑‑Proclamation of Emergency dated 14‑10‑1999‑‑‑Constitution of Pakistan (1973), Arts. 184(3),. 41, 42, 43, 48(6), 62, 63 & 260‑‑‑Constitutional petition under Arts. 184(3) of the Constitution before Supreme Court‑‑‑Legality and vires of Referendum Order, 2002 on the Constitutional plane as well as on the touchstone of the. Supreme Court verdict in Syed Zafar Ali Shah v. General Pervez Musharraf Chief Executive of Pakistan PLD 2000 SC 869‑‑‑Legal status of the Referendum Order, 2002 is unquestionable inasmuch as essence of Referendum Order 2002 is not mala fide and the same has been promulgated in pursuance of the Proclamation of Emergency dated 14‑10‑1999 and Provisional Constitution Order, 1999 which have been validated by Supreme Court in Syed Zafar Ali Shah's case‑‑‑Referendum Order, 2002 has been promulgated notwithstanding the provisions of Art.48(6) or any other provision of the Constitution i.e. Arts. 41, 42, 43, 62, 260, 262, 213, 218 & 219‑‑‑Preamble of Referendum Order, 2002 makes it manifest that the Chief Executive/ President has not acted under Art.48(6) of the Constitution for holding a referendum but promulgated the Referendum Order, 2002 in pursuance of the Proclamation of Emergency and Provisional Constitution Order, 1999 and in exercise of all other powers enabling him in that behalf‑Principles‑‑‑President's Succession Order, 2001, Proclamation of Emergency (Amendment) Order; 2001 and Referendum Order, 2002 were promulgated to promote the good of the people and thus were necessary to establish the objectives of the Chief Executive for the orderly ordinary running of the State within the scope of the judgment of Supreme Court in Syed Zafar Ali Shah's case‑‑‑Said legislative measures have therefore, been validly issued which were essential to provide for smooth and orderly transition to the democratic set‑up after October, 2002 Election‑‑‑Case for interrupting the process of referendum was not made out as the stage was set for holding the referendum.

Insofar as the legal status of the Referendum Order is concerned, it is unquestionable inasmuch as it has been promulgated in pursuance of the Proclamation of Emergency and the PCO No. 1 of 1999, which have been validated by Supreme Court. The verdict given by the Supreme Court in Syed Zafar Ali Shah's case, which holds the field, manifestly shows that the. Chief Executive/President of Pakistan has not only been empowered to run the affairs of the Government for a period of three years to achieve his declared objectives and directed to hold the election on a date not later than 90 days before October 12, 2002, but also given power to amend the Constitution and make necessary legislation for the purpose of implementing his declared objectives and for running day‑to‑day affairs of the government The Referendum Order was promulgated notwithstanding the provisions of clause (6) of Article 48 of the Constitution under which a referendum can be held if the President, in his discretion or on the advice of the Prime Minister, considers that it is desirable that any matter of national importance should be referred to a referendum. In the said event, the President can cause the matter to be referred to a referendum in the form of a question which is capable of being answered either by "Yes" or "No". In the present case it was argued that Article 48(6) of the Constitution having not been held in abeyance, the holding of referendum was illegal and un‑Constitutional particularly when General Pervez Musharraf being not an elected President under the Constitution had no authority to hold such referendum. It was contended further that the President, who is also the Chief Executive and the Chief of Army Staff, has no authority to act under Article 48(6) of the Constitution. The searching question for ascertaining answer to this argument is under what powers the Chief Executive/President has decided to hold the referendum. The answer lies in the Referendum Order, 2002 itself the .preamble whereof makes it manifest that .the Chief Executive/President did not act under Article 48(6) of the Constitution for holding a referendum but promulgated the Referendum Order, 2002 in pursuance of the Proclamation of Emergency and the PCO No. 1 of 1999 and in exercise of all other powers enabling him in that behalf. General Pervez Musharraf had taken over the affairs of the country in extraordinary circumstances and in the light of the judgment of Supreme Court in Syed Zafar Ali Shah's case the Chief Executive/President was fully competent to issue the Referendum Order, 2002 and thus no objection could be taken because he had the power and authority to do so. The ratio of Syed War Ali Shah's case allowed a period of three years to General Pervez Musharraf to hold the reins of government in his capacity as the Chief Executive. The country is being steered towards the path of democracy and this is a transitional or transformative period and in the present scenario the Referendum Order, 2002 has turned out to be a springboard for reiteration of the commitment of the Chief, Executive to hold the general election in October, 2002.

It was also urged that in an indirect method General Pervez Musharraf is seeking his election to the office of President through referendum and be it Article 48(6) of the Constitution or the Referendum Order, 2002 this method cannot be adopted to get oneself elected as President. The argument ignores the fact that in the past on two occasions such a referendum was held, one by Field Martial Ayub Khan and the other by General Ziaul Haq with a view to effecting transfer of power from military to civilian authorities. The provisions of Article 96‑A of the Constitution, are worth noting which were inserted into the Constitution by Mr.Zulfiqar Ali Bhutto for holding a referendum in order to ascertain whether the nation, in the midst of agitations against him, wanted to retain him as the Prime Minister or not.

The Referendum Order, 2002 has been validly promulgated and a case for interrupting the process is not made out as the stage is set for holding the referendum on 30th April, 2002.

The CE Orders Nos. 2 and 3 of 2001 were promulgated to promote the good of the people and thus were necessary to establish the objectives of the Chief Executive for the orderly ordinary running of the State within the scope of the judgment of the Supreme Court in Syed Zafar Ali Shah's case. These legislative measures have, therefore, been validly issued. The three Orders, i.e. the CE Orders Nos. 2 and 3 of 2001 and the Referendum Order read together were essential to provide for smooth and orderly transition to the democratic set‑up after the October 2002 election.

The Chief Executive may perform acts referred to in the judgment by means of Orders issued by him or through Ordinances on his advice. He has the authority to issue legislative measures. The authority is subject to certain qualifications. These measures are, however, subject to judicial review. This is not. a case where the old legal order has been completely suppressed or destroyed but merely a case of Constitutional deviation for a transitional period. The impugned action has not been taken under any Constitutional provision, but it is the result of an extra‑Constitutional measure and, therefore, reference to the Constitutional provision is of no consequence.

Action dated 12‑10‑1999 is in itself sufficient to be equated with something beyond the contemplation of the Constitution, and, therefore, no question regarding the same being attended to by the Courts for resolution by treating it as having been taken under the Constitution arises.

Similar is the position of the Referendum Order, which has not been issued under the Constitution and therefore, reference to Articles 41, 42, 43 and 48 of the Constitution is absolutely, irrelevant. The Referendum Order, 2002 which has been issued under the Proclamation of Emergency and the PCO No. 1 of 1999 cannot be challenged in any manner on the touchstone of the Constitution including any reference to the provisions, which lay down explicitly or implicitly that the offices of the President and the Prime Minister shall beheld by two different persons or that the President cannot be the Chief Executive as well as the Chief of Army Staff at the same time. It was also urged that under Article 62 of the Constitution, which contains qualifications for being elected as a member of the National Assembly, which are also the qualifications for election to the office of the President, cannot be read into Article 41(2) of the Constitution. The said Article only provides that the President must be a person qualified to be elected as a member of the National Assembly. The disqualifications listed in Article 63 cannot be, read into Article 41(2).

As regards the provisions of Article 43 of the Constitution and the definition of 'service of Pakistan' given in Article 260 read with other provisions of the Constitution including the Second and Third Schedules thereto all these provisions are in abeyance. Therefore, they have no relevance and the assumption of the office of the President by General Pervez Musharraf and the holding of referendum cannot be challenged on the strength of those provisions.

The word 'abeyance' means state of suspension or dormant condition. In a time of Constitutional abeyance, therefore, the validity of the Orders issued by the Chief Executive, insofar as these conform to the judgment of the Supreme Court in Syed Zafar Ali Shah's case, cannot be questioned on the basis of being at variance with the Constitutional provisions and while examining such acts or measures this Court would not sit in appeal on the political wisdom of such acts and measures. It will also not determine whether it was proper to do so. Supreme Court while retaining the power of judicial review over the acts and orders and measures of the Chief Executive noted that the power of judicial review should be exercised with caution. The power of judicial review has to remain strictly judicial and cannot be undertaken with a view to encroaching upon the domain of other branches of the government.

It was also contended that the essence of the Referendum Order was mala fide. As far as mala fide aspect is concerned, mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon 2 vague allegation of mala fides. Mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed to a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case.

"Mala fides" literally means 'in bad faith' Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or actions taken in fraud on the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by, anyone of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides. nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people.

The exercise of legislative power either by the Assembly or by the President is not made dependent on any motive or wisdom and the legislation cannot be struck down on grounds of mala fides.

It was contended that after holding of the referendum, General Pervez Musharraf and his regime have no intention to hold the election, the referendum would be unfair in the absence of the electoral rolls and such referendum would be a device to assume absolute powers. It was also urged that after the referendum General Pervez Musharraf will have to seek validity of the referendum from the Parliament and in consequence of the mandate obtained in the referendum he will seek enhancement of powers and thus the parliamentary system would come to an end and Presidential form of government will come into existence. All these apprehensions, are purely imaginary, academic, presumptive and hypothetical and in fact such questions have been raised prematurely. One cannot anticipate nor can the petitioners as to the course of future events. Supreme Court has always declined to go into academic exercises in respect of unborn issues.

The Courts do not decide abstract, hypothetical or contingent questions or give mere declarations in the air. 'The determination of an abstract question of constitutional law divorced from the concrete facts of a case', floats in an atmosphere of unreality; it is a determination in vacuum and unless it amounts to a decision settling rights and obligations of the parties before the Court it is not an instance of the exercise of judicial power.

There is no duty cast on the Courts to enter upon purely academic exercises or to pronounce upon hypothetical questions. The Court's judicial function is to adjudicate upon a real and present controversy which is formally raised before it by a litigant.

It was also contended that the Chief Election Commissioner and the Election Commission of Pakistan had no authority to conduct the referendum in view of provisions of Articles 213(3), 218 and 219 of the Constitution. The argument is fallacious because it ignores the fact that the provisions of the Constitution are in abeyance. The Referendum Order has been issued by the Chief Executive notwithstanding any thing contained in the Constitution and under the Proclamation of Emergency and the PCO No.1 of 1999 and all other powers enabling him in that behalf. Furthermore, the Chief Election Commissioner, in view of Article 213(3), has such powers and functions as are conferred on him by the constitution and law. The Referendum Order is a validly promulgated Order of the Chief Executive. The Referendum Order empowers the Chief Election Commissioner and the Election Commission of Pakistan to hold and conduct referendum and this is not open to challenge on any ground or criteria laid down in Syed Zafar Ali Shah's case. It was repeatedly argued that the provisions for referendum in the Constitution are general in nature while Article 41 specifically provides the mode for election to the office of the President through an electoral college of the National Assembly, the Provincial Assemblies and the Senate and Article 41 being the special provision would prevail over Article 48(6). The principles for interpreting Constitutional documents are that all provisions should be read together and harmonious construction should be placed on such provisions so that no provision is rendered nugatory. Appeal to the political and popular sovereign, i.e. the people of Pakistan cannot be termed as undemocratic and cannot be regarded as against the letter and spirit of the Constitution. Articles 41, 43 and 48 and the definition of 'service of Pakistan' in Article 260 and Schedules to the Constitution are not at all relevant and have no bearing upon the issue involved in these proceedings.

Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; Sabir Ali Shah's case PLD 1994 SC 738; Federation of Pakistan v. Moulvi Tamizuddin Khan PLD 1955 FC 240; Reference by H.E. The Governor‑General PLD 1955 FC 435; Asma Jillani's case PLD 1972 SC 139: Nusrat Bhutto's case PLD 1977 SC 657; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Kh. Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah. 725; Federation of Pakistan v. Haji Saifullah Khan PLD 1989 SC 166; Kh. Ahmed Tariq Rahim v. Federation of Pakistan PLD 1992 SC 646; Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Mohtarama Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Zahoor Elahi v. Zulfiqar Ali Bhutto PLD 1975 SC 383; Sadiq Hussain Qureshi v. Federation of Pakistan PL D 1979 Lah. 1; Muhammad Anwar Durrani. v. Province of Balochistan PLD 1989 Quettta 25; Abdul Mujeeb Pirzada v. Federation of Islamic Republic of Pakistan PLD 1990 Kar. 9; Ghulam Jilani v. Province of Punjab PLD 1979 Lah. 564; Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Mahmood Khan Achakzai's case PLD 1997 SC 426; Malik Ghulam Jillani v. Province of Punjab and others PLD 1979 Lah. 564; Referendums and Democratic Governments by Maija Setala; Ali Raza Asad Abdi v. Ghulam Ishaq Khan PLD 1991 Lah. 420; Zufiqar Ali Bhutto v. State PLD 1978 SC 40; PLD 1978 Kar. 736; PLD 1979 Pesh. 23; PLD 1979 Lah. 564; Oxford English dictionary, Vol. XI. Second 'Edn., 1989; Referendums Around the World‑‑Growing Use of Direct Democracy, Edited by David Butler and Austin Ranney; Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863; Muhammad Rafiq Tarar v. Justice Mukhtar Ahmad Junejo PLD 1998 Lah. 414; Muhammad Shahbaz Sharif v. Muhammad Iltaf Hussain PLD 1995 Lah. 541; Rustam Ali v. Martial Law Administrator PLD 1978 Kar. 736; Nasirullah Khan Babar v. Chief of Army Staff PLD 1979 Pesh. 23; University of. Punjab v. Rehmatullah PLD 1982 Lah. 729; Farooq Ahmed Khan Leghari, v. Federation of Pakistan PLD 1999 SC 57; Saeed Ahmed Khan v. Federation of Pakistan PLD 1974 SC 151; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457: Muhammad Saddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393; Muhammad Hassan v. Government of Sindh and others 1980 SCMR 400; Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Sajjad Ali Shah v. Asad Ali 1999 SCMR 640 ref.

(d) Referendum Order [Chief Executive's Order No.12 of 2002]‑‑‑

‑‑‑‑Referendum‑‑‑Nature, definition, concept and meaning of referendum‑‑Terms "plebiscite" and "referendum" are interchangeable‑‑‑Broad categories of referendum enlisted.

The word 'referendum' is of Latin origin which means 'things to be referred'. It is derived from the French term 'referer' or from the Latin term 'referre' and a compound verb formed from the prefix 're', meaning. 'back' and 'ferre' meaning 'carry' and referendum is an adoption of 'neture gerundive of referre'. The terms 'plebiscite' and 'referendum' are interchangeable. The word 'plebiscite', which is also of Latin origin. is made of two words 'plebis' and 'citus', which mean 'referring to the people'. The word 'plebiscite' is said to be derived from 'plebeian' and etymologically is a decree approved by the cottunon people. In modern politics, plebiscite is a direct vote of the whole of the electors of a State to decide a question of public importance. Direct democracy elections or plebiscite are nearly as old as the idea of democracy. The notion 'of plebiscite goes back at least to the ancient Rome. A plebiscite is a direct vote by which voters are invited to accept or refuse the measure, program or the government of a person or a party, and is a consultation whereby citizens exercise the right of national self‑determination.

The subject‑matter of referendum can be divided into four broad categories:‑‑

Constitutional issues: After a revolution or territorial bleak‑up, a country needs to give legitimacy to fresh arrangements and to the rules under which it is to operate in the future. A popular vote of endorsement is an excellent way of giving democratic authority to the new regime;

Territorial issues

Moral issues: Some questions cut across party line and cause deep divisions among politicians, who are normally allied in office or in opposition. Alcoholic beverage prohibition, divorce and abortion are examples of contentions that several countries have sought to settle through referendum;

Other issues: In certain countries the citizens have the right to insist that certain matters be put to a popular vote.

It is not Pakistan alone in which referendum is being held under the Referendum Order. Referendums have been held in many countries of the world on several issues.

Sometimes referendum is used to achieve symbolic legitimization of the position of the government or its policies.

As regards the referendums in Pakistan, the very birth of Pakistan is associated with referendums held in the N.‑W.F.P., Balochistan and Sylhet

Oxford English Dictionary, Vol. XI, 2nd E n., 1989; Referendums in Democratic Governments' by Maija Setala and Referendums Around the World‑‑The Growing Use of Direct Democracy Edited by David Butler and Austin Ranney ref.

(e) President's Succession Order [Chief Executive's Order No.3 of 2001]‑‑

‑‑‑‑Provisional Constitution Order (1 of 1999)‑‑‑Proclamation of Emergency dated 14‑10‑1999‑‑‑Proclamaiton of Emergency (Amendment) Order [Chief Executive's Order No.2 of 2001]‑‑‑Constitution of Pakistan (1973). Art. 184(3)‑‑‑Constitutional petition under Art.184(3) of the Constitution before Supreme Court‑‑‑Interpretation, scope and applicability of President's Succession Order, 2001 and Proclamation of Emergency (Amendment) Order, 2001‑‑‑Contention that the former President of Pakistan still continued to hold office of President and General Pervez Musharraf had illegally assumed unto himself the office of the President was untenable because Proclamation of Emergency (Amendment) Order 2 of 2001 and President's Succession Order 3 of 2001 had been validly promulgated by the Chief Executive/President in exercise of the powers conferred on him by virtue of Proclamation of Emergency dated 14‑10‑1999 and Provisional Constitution Order, 1999 which had been validated by Supreme Court in Syed Zafar Ali Shah's case‑‑‑Fact that former President was not given oath under the Provisional Constitution Order, 1999 was of no consequence‑‑Former President, therefore, had ceased to hold office by virtue of Chief Executive's Orders Nos.2 and 3 of 2001‑‑‑Principles.

It was attempted to argue that the former President still continued to hold the office of President and General Pervez Musharraf had illegally assumed unto himself the office of the President. The argument is untenable because CE Orders Nos. 2 and 3 of 2001 have been validly promulgated by the Chief Executive/President in exercise of the powers conferred on him by virtue of the Proclamation of Emergency and PCO No. 1. of 1999. which have been validated by this Court in Syed Zafar Ali Shah's case. Accordingly, the former President ceased to hold office by virtue of CE Orders Nos. 2 and 3 of 2001.

The CE Order No. 2 of 2001 was promulgated on 20th June, 2001 amending the Proclamation of Emergency and as a result thereof the then President of Pakistan, ceased to hold office with immediate effect, the National Assembly, the Provincial Assemblies and the Senate of Pakistan suspended by the Proclamation of Emergency, were dissolved, the Chairman and Deputy. Chairman of Senate and Speakers and Deputy Speakers of the National and the Provincial Assemblies also ceased to hold their respective offices. The CE Order No. 3 of 2001 which was also issued on the same day provided that upon the office of the President becoming vacant, the Chief Executive shall be the President of the Islamic Republic of Pakistan and shall perform all functions assigned to the President by or under the Constitution or by or under any law. It was further provided that if the President is unable to perform his functions either by his absence from the country or for any other reason, the Chief Justice of Pakistan shall act as President and in case the Chief Justice is unable to act as President the most senior Judge of the Supreme Court shall act as .President of Pakistan till the President returns to Pakistan and assumes his functions, as the case may be.

On 20th June 2001, General Pervez Musharraf entered upon the office of the President and was administered oath of office provided in the Schedule to the CE Order No. 3 of 2001 by the then Chief Justice of Pakistan. Thereafter, General Pervez Musharraf has been performing the functions of the President. He has sworn in two Chief Justices of Pakistan, He has met foreign heads of the State as well as local politicians including many of the petitioners in the present constitutional petitions in his capacity as President of Pakistan. No challenge muchless effective was thrown to the assumption of office of President by him and even in the constitutional petitions the challenge has been made only peripherally and collaterally while challenging the Referendum Order. A writ of quo warranto cannot be brought through collateral attack. Such a relief has to be claimed directly. For orderly and good governance validity of the appointment of incumbent of public office cannot be impugned through collateral proceedings. Although strictly speaking the principle of laches does not apply to the writ of quo warranto but the Court cannot close its eyes as regards the conduct of the petitioners appearing before it, which militates against the bona fides of the petitions.

The petitioners in the present case also rose from slumber when the Referendum Order was promulgated in April, 2002 although the CE Orders Nos. 2 and 3 of 2001 were issued in June, 2001 and while challenging the Referendum Order, the assumption of office by General Pervez Musharraf has been challenged collaterally. No explanation has been rendered by the petitioners for not filing the petitions after 20th June, 2001 till the promulgation of the Referendum Order.

It was contended that the CE Order No. 2 of 2001 did not contain a non obstante clause and therefore it could not override the Constitution. The perusal of the Order No. 2 would show that it merely amended the Proclamation of Emergency and being an amending order is an integral part of the Proclamation of Emergency. The Proclamation of Emergency clearly provided in para. 21a) that the Constitution of the Islamic Republic of Pakistan shall remain in abeyance. It further provided in para. 2(t) that the whole of Pakistan shall come under the control of the Armed Forces of Pakistan. Since the 1973 Constitution itself is in abeyance, it was not necessary to repeat in the CE Orders Nos. 2 and 3 of 2001 the language used in the Proclamation of Emergency and there was hardly any necessity to provide that the provisions of the Proclamation of Emergency will override the Constitution or shall have effect notwithstanding anything contained therein. The perusal of the CE Order No. 3 of 2001 would clearly reveal that it provides in Article 2 that it shall have effect notwithstanding anything contained in the Constitution or any other law. The CE Order No. 3 of 2001 has not been issued under the Constitution and it is like the earlier extra Constitutional measures, viz. the Proclamation of Emergency and the PCO No.1 of 1999 and has been issued in extraordinary situation to promote the good of the people and good governance in the country. The CE Orders Nos.2 and 3 of 2001 draw their validity from the Proclamation of Emergency and the PCO No. 1 of 1999 and have been issued in exercise of the powers enabling General Pervez Musharraf in that behalf as the Chief Executive of Pakistan. Needless to mention that Supreme Court has validated the Proclamation of Emergency as well as the PCO No.1 of 1999.

Former President was elected as` President on 29th December, 1997 and continued in office till 14th October, 1999, i.e. the date when Proclamation of Emergency was promulgated and given effect from 12th October, 1999. It clearly provided in para. 2 that the President shall continue in office. Thus, he continued as President under the Proclamation of Emergency and not under the 1973 Constitution and the fact that he was not given oath under the PCO No. 1 of 1999 is of no consequence.

In Syed Zafar Ali Shah's case the Supreme Court empowered General Pervez Musharraf to perform all such acts and promulgate all legislative measures which are in accordance with and could have been made under the 1973 Constitution as well as acts and measures which promote good of the people or which are required to be done for ordinary, orderly running of the affairs of the State or which lead to the establishment and attainment of declared objectives of the Chief Executive.

The CE Orders Nos. 2 and 3 of 2001 were promulgated to promote the good of the people and thus were necessary to establish the objectives of the Chief Executive for the orderly ordinary running of the State within the scope of the judgment of the Supreme Court in Syed Zafar Ali Shah's case. These legislative measures have, therefore, been validly issued. The three Orders, i.e. the CE Orders Nos. 2 and 3 of 2001 and the Referendum Order read together are essential to provide for smooth and orderly transition to the democratic set‑up after the October, 2002 election.

Pir Sabir Shah's case PLD 1994 SC 738; Ali Raza Asad Abdi v Ghulam Ishaq Khan PLD 1991 Lah. 420 and Mahmood Khan Achakzai v Federation of Pakistan PLD 1997 SC 426 ref.

(f) Writ‑‑

‑‑‑‑ Appointment of incumbent of public office‑‑‑Validity‑‑‑Lathes‑‑‑Quo Warranto cannot be brought through collateral attack‑‑‑Such a relief has to be claimed directly‑‑‑For orderly and good governance validity of the appointment of incumbent of public office cannot be impugned through collateral proceedings‑‑‑Principle of laches though does not apply to writ of quo warranto but the Court cannot close its eyes as regards the conduct of petitioners appearing before the Court, which militates against the bona tides of the petitioners.

Pir Sabir Shah's case PLD 1994 SC 738; Ali Raza Asad Abdi v. Ghulam Ishaq Khan PLD 1991 Lah. 420 and Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426 ref.

(g) Mala fides‑‑‑

‑‑‑‑ Mala tides is one of the most difficult things to prove and the onus is entirely upon the person alleging same‑‑‑Principles.

Saeed Ahmed Khan v. Federation of Pakistan PLD 1974 SC 151 and Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 ref.

(h) Words and phrases‑‑‑

‑‑‑‑"Referendum"‑‑‑Meaning‑‑‑Terms "Plebiscite" and "referendum"' are interchangeable‑‑‑Broad categories of referendum enlisted.

Oxford English Dictionary, Vol. XI, 2nd Edn., 1989; Referendums in Democratic Governments' by Maija Setala and Referendums Around the Word‑‑The Growing Use of Direct Democracy Edited by David Butler and Austin Ranney ref.

(i) Words and phrases‑‑‑

‑‑‑‑"Abeyance"‑‑‑Meaning‑‑‑Expression "abeyance" means status of suspension or dormant condition.

(j) Referendum Order [Chief Executive's Order No. 12 of 2002]

‑‑‑‑Constitution of Pakistan (1973), Art.184(3)‑‑‑Constitutional petition under Art. 184(3) of the Constitution‑‑‑Contention that essence of Referendum Order, 2002 was mala fide was repelled‑‑‑Principles.

Saeed Ahmed Khan v. Federation of Pakistan PLD 1974 SC 151; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; Asma Jilani v Government of Punjab PLD 1972 SC 139; Muhammad Saddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393, Muhammad Hassan v. Government of Sindh and others 1980 SCMR 400; Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Sajjad Ali Shah v Asad Ali 1999 SCMR 640 ref.

(k) Referendum Order [Chief Executive's Order No.12 of 2002]‑‑‑

‑‑‑‑Constitution of Pakistan (1973), Arts. 184(3), .213(3), 218 & 219‑‑Constitutional petition .under Art. 184(3) of the Constitution before Supreme Court‑‑‑Contention that Chief Election Commissioner and the Election Commission of Pakistan had no authority to conduct referendum in view of provisions of Arts.213(3), 218 & 219 of the Constitution was repelled‑‑Principles.

(l) Interpretation of Constitution‑‑‑

---All provisions of the Constitutional documents have to be read together and harmonious construction be placed on such provisions so that no provision is rendered nugatory.

Dr. Farooq Hasan, Senior Advocate Supreme Court, Rai Muhammad Nawaz Kharal, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner (in C.P. No. 15 of 2002).

Muhammad Ikram Ch., Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑or‑Record for Petitioner (in C.P. No. 17 of 2002).

Hamid Khan, Advocate Supreme Court and Ejaz Ahmed Khan, Advocate‑on‑Record (absent) for Petitioner (in C.P. No. 18 of 2002).

Syed Sharif Hussain Bokhari, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record (absent) for Petitioner (in C.P. No. 19 of 2002).

Petitioner in person (in C.P. No.20 of 2002).

Petitioner in person (in C.P. No.21 of 2002).

A. K. Dogar, Advocate Supreme Court and Ejaz Muhammad Khan. Advocate‑on‑Record for Petitioner (in C.P. No.22 of 2002).

Hashmat Ali Habib, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioner (in C.P. No.23 of 2002).

Petitioner in person (in C.P. No.24 of 2002).

Petitioner in person (in C.P. No.512 of 2002).

Makhdoom Ali Khan, Attorney‑General for Pakistan and Amir Hani Muslim, Deputy Attorney‑General and Muhammad Ashraf Tanoli, Advocate‑General, Balochistan (on Court's Notice).

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Maqbool Ellahi Malik, Senior Advocate Supreme Court. Naseer Ahmed Advocate Supreme Court, Rana Waqar Ahmed, Advocate with Mehr Khan Malik, Advocate‑on‑Record for Respondents/Federation (in C.P. No. 15 of 2002).

Maqbool Ellahi Malik, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Respondents/Federation (in C.Ps. Nos. 17, 21, 23, 24 and 512 of 2002).

Syed Iftikhar Hussain Gillani, Advocate Supreme Court assisted by Muneeb Zia, Advocate and Mehr Khan Malik, Advocate‑on‑Record for Respondents/Federation (in C.P. No, 18 of 2002).

Abdul Hafeez Pirzada. Senior Advocate Supreme Court assisted by Miangul Hassan Aurangzeb, Mian Feroze Jamal Shah Kakakhell and Sardar Qasim Ahmad Ali Advocate High Court and Mehr Khan Malik, Advocate-on‑Record for Respondents/Federation (in C. Ps. Nos. 19 and 22 of 2002).

Mehr Khan Malik, Advocate‑on‑Record for Respondents/Federation (in C.P. No.20 of 2002).

Dates of hearing: 22nd to 27th April, 2002.

PLD 2002 SUPREME COURT 939 #

P L D 2002 Supreme Court 939

Present: Sh. Riaz Ahmed, C.J, Qazi Muhammad Farooq, Mian Muhammad Ajmal, Syed Deedar Hussain Shah

and Abdul Hameed Dogar, JJ

SUPREME COURT BAR ASSOCIATION through

President and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petitions Nos. 1, 6, 7, 8, and 12 of 2002, decided on 10th April, 2002.

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

----Art. 176---Supreme Court Rules, 1980, O.XI---Constitution of the Benches of the Supreme Court---Chief Justice has the sole prerogative to constitute any Bench with any number of Judges to hear any particular case---Neither an objection can be raised nor is any party entitled to ask for constitution of a Bench of its own choice and it is inappropriate to raise the question of parochialism and provincialism in the matter of constitution of Benches of the Supreme Court.

Zulfiqar Ali Bhutto v. State PLD 1978 SC 125; In re: M.A. No.657 of 1996 in References Nos. 1 and 2 of 1996 PLD 1997 SC 80 and Hamid Sarfraz v. Federation of Pakistan PLD 1979 SC 991 ref.

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

----Art. 177---Appointment of Supreme Court Judges----Principles of seniority and legitimate expectancy neither apply nor can be extended to the appointment of Judges of the Supreme Court---No Constitutional convention or past practice exists to appoint the most Senior Judge of a High Court as a Judge of the Supreme Court---Rule of fitness and suitability has an edge over the principles of seniority and legitimate expectancy---Absence of the words "the most senior" in Art. 177 of the Constitution for appointment of Judges of the Supreme Court shows that seniority of a Judge in the High Court is not a sine qua non for his appointment as a Judge of the Supreme Court--Neither the principle of seniority is applicable as a mandatory rule for appointment of Judges in the Supreme Court nor the said rule has attained the status of a convention---Chief Justice of Pakistan being the pater families of the judiciary of the country is the best judge to ascertain and gauge the fitness and suitability of the Judges in the High Court for appointment as Judges of the Supreme Court and recommendations of the Chief Justice of Pakistan are not justiciable---Principles---Views of the Chief Justice of Pakistan cannot be rejected arbitrarily for extraneous considerations and if the executive wished to disagree with his views, it has to record strong reasons which will be justiciable.

The scope of the principles of seniority and legitimate expectancy enunciated in Supreme Court Judgments in AI-Jehad Trust's case PLD 1996 SC 324 and Malik Asad Ali's case PLD 1998 SC 161 is restricted to the appointment of Chief Justice of a High Court and the Chief Justice of Pakistan and these principles neither apply nor can be extended to the appointment of Judges of the Supreme Court. It is nowhere mentioned in those judgments that the principles of seniority and legitimate expectancy shall also apply in the matter of appointment of Judges of the Supreme Court. The omission appears to be intentional and not accidental in view of the line of reasoning in the said judgments. In the Judges' case while interpreting Article 193 of the Constitution it was held that there is no Constitutional requirement to appoint the most senior Judge as Chief Justice of a High Court whenever permanent vacancy occurs but there is a Constitutional convention in this context which has developed by continuous usage and practice over a long period of time and must be followed in the interest of independence of judiciary. In Asad Ali's case this view was applied with greater force in the case of appointment of the Chief Justice of Pakistan under Article 177 of the Constitution on the strength of the Constitutional convention and past practice and the analogy of Article 180 of the Constitution which provides that in absence of the Chief Justice of Pakistan the most senior Judge of the Supreme Court shall be appointed as Acting Chief Justice of Pakistan. There exists no Constitutional convention or past practice to Appoint the most senior Judge of a High Court as a Judge of the Supreme Court. The Constitution makers were aware of the expression 'the most senior' used in Article 180 of the Constitution and in the light of the well-established principle of interpretation of the Constitution and law, the absence of the words, 'the most senior' in Article 177 for appointment of Judges of the Supreme Court would show that seniority of a Judge in the High Court is not a sine qua non for his appointment as a Judge of the Supreme Court. If for the purpose of appointment of Judges in the Supreme Court, the seniority of the Judges inter se in the High Courts would have been the rule, there was no impediment in the way of the Constitution makers to use the expression, 'the most senior' in Article 177 of the Constitution. Even, juristically speaking and analyzing the rationale of the principle of appointment of Judges in the Supreme Court, it becomes very clear that the Chief Justice of Pakistan being the pater familial of the judiciary of the country is the best judge to ascertain and gauge the fitness and suitability of the Judges working in the High Court for appointment as Judges of the Supreme Court. Neither the principle of seniority is applicable as a mandatory rule for appointment of Judges in the Supreme Court nor the said rule has attained the status of a convention.

The role and functions` of the Chief Justice of Pakistan in the process of appointment of the Judges of the superior Courts are described in the Judges case in the following words:--

The object of providing consultation, inter alia in Articles 177 and 193 of the Constitution of Pakistan (1973) for the appointment of Judges in the Supreme Court and in the High Courts was to accord Constitutional recognition to the practice/convention of consulting the Chief Justice of the High Court concerned arid the Chief Justice of the Federal Court, which was obtaining prior to the independence of India and post-independence period, in order to ensure that competent and capable people of 'known integrity should be inducted in the superior judiciary which has been assigned very difficult and delicate task of acting as watch dogs for ensuring that all the functionaries of the State act within the limits delineated by the Constitution and also to eliminate political considerations. The power of appointment of Judges in the superior Courts had direct nexus with the independence of Judiciary. Since the Chief Justice of the High Court concerned and the Chief Justice of Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship, their recommendations have been consistently accepted during pre-partition days as well as post-partition period in India and Pakistan. The words 'after consultation' referred to, inter alia, in Articles 177 and 193 of the Constitution involve participatory consultative process between the consultees and also with the Executive. It should be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint or arbitrariness or unfair play. The Chief Justice of a High Court and the Chief Justice of Pakistan are well-equipped to assess as to the knowledge and suitability of a candidate for judgeship in the superior Courts, whereas the Governor of a Province and the Federal Government ate better equipped to find out about the antecedents of a candidate and to acquire other information as to his character/conduct. No one of the above consultees/functionaries is less important or inferior to the other: All are important in their respective spheres. The Chief Justice of Pakistan, being pater familias i.e. head of the judiciary, having expertise knowledge about the ability and suitability of a 'candidate, definitely his views deserve due deference. The object of the above participatory consultative process should be to arrive at a consensus to select best persons for the judgeship of a superior Court keeping in view the object enshrined in the Preamble of the Constitution, which is part of the Constitution by virtue of Article 2A thereof, and ordained by Islam to ensure independence of judiciary.

The above role and functions of the Chief Justice of Pakistan will become redundant and superfluous if the rule of seniority is held applicable to the appointment of the Judges of the Supreme Court because in that eventuality the process would become automatic and mechanical. Such a situation would certainly affect the self-operativeness and independence of judiciary adversely.

There, are yet two other factors which give the rule of fitness and suitability an edge over the principles of seniority and legitimate expectancy. First, the appointment of a Judge of the High Court as a Judge of the Supreme Court is a fresh appointment and not a promotion and, secondly, supersession of senior Judges of the High Court is not unprecedented.

The views of the Chief Justice of Pakistan cannot be rejecter: arbitrarily for extraneous consideration and if the executive wished to disagree with his views, it has to record strong reasons which will he justiciable. In the present case while making, the impugned appointments the President of Pakistan had fully adhered to the recommendations made by the Chief Justice of Pakistan. The recommendations of the Chief Justice are nor justiciable.

The rationale behind making the recommendations of the Chief Justice of Pakistan non justiciable is multifaceted. The main justification is that the recommendations are the outcome of subjective satisfaction of the Chief Justice of Pakistan. The other dimensions are that if the recommendations are made justiciable the primacy of the opinion of the Chief Justice of Pakistan will be undermined directly or indirectly, embarrassment will be caused to the judicial consultee as well as the recommendees, independence of judiciary and smooth working of the Curt will be affected, pressure groups will emerge at different levels.

AI-lehad Trust v. Federation of Pakistan PLD 1996 SC 324; Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Reference by H.E. the Governor-General PLD 1955 FC 435; Reference by 'the President of Pakistan PLD 1957 SC 219; Special Reference under Article 187 of the Interim Constitution of the Islamic Republic of Pakistan PLD 1973 SC 563; Reference No. 1 of 1988 made by the President of Pakistan PLD 1989 SC 75; Federal Government of Pakistan v. M.D. Tahir, Advocate 1990 SCMR 189; Abrar Hussain v. Government of Pakistan PLD 1976 SC 315; Muhammad lkram Chaodhry and others v. Federation of Pakistan and others PLD 1998 SC 103; Ghulam Hyder Lakho v. Federation of Pakistan PLD 2000 SC 179; Zulfiqar Ali Bhutto v. State PLD 1978 SC 125; References Nos. I and 2 of 1996 PLD 1997 SC 80; Hamid Sarfraz v. Federation of Pakistan PLD 1979 SC 991; Chairman, Regional Transport Authority v. Pakistan Mutual Insurance Co. PLD 1991 SC 14; Government of N.-W.F.P. through Secretary and 3 others v. Majee Flour and General Mills (Pvt.) Ltd., Mardan and others 1997 SCMR 1804; Director Food, N.-W.F.P. and others v. Messrs Madina Flour Mills through General Manager PLD 2001 SC 1; Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; Pakistan Lawyers Forum v. Pervez Musharraf 2000 SCMR 897; Amanullah Khan and others v. Federal Government of Pakistan and others PLD 1990 SC, 1092; Inamur Rehman's case 1992 SCMR 563; Mahmood Khan Achakzai's case OLD 1997 SC 426; Syed Zafar Ali Shah's case PLD 2000 SC 869; Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah. 725: Haji Saifullah Khan's case PLD 1989 SC 166; A.O.R.'s. case AIR 1994 SC 268 and Malik Ghulam Jilani v. Mr. Justice Muhammad Gul 1978 SCMR 110 ref.

----Arts. 177 & 184(3)---Constitutional petition under Art.184(3) of the Constitution before the Supreme Court---Appointment of Supreme Court Judges---Contention was that the Chief Justice of Pakistan who had made the recommendation for appointment of Judges of the Supreme Court was not the judicial consultee to the extent of the vacancies which had occurred after his retirement and as such appointments against the said vacancies were void ab initio---Validity---Appointment against two anticipated vacancies made in advance could not be termed as illegal or void as an anticipated permanent vacancy could be filled in advance---Instances of such-like appointments in Pakistan recorded.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Ghulam Haider Lakho v. Federation of Pakistan PLD 2000 SC 179 ref.

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

----Arts. 177 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution before the Supreme Court---Appointment of Supreme Court Judges---Contention was that the Senior Judges of the High Court who were superseded in the matter of appointment in the Supreme Court were condemned unheard---Validity---Recommendations of the judicial consultee i.e. the Chief Justice of Pakistan being not justiciable the contention was misconcieved---Recommendations by the Chief Justice of Pakistan were manifestation of subjective satisfaction of the judicial consultee, therefore, .the principle of natural justice "audi alteram partem" was not attracted.

Ghulam Haider Lakho v. Federation of Pakistan PLD 2000 SC 179 ref.

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

----Arts. 177 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution before the Supreme Court---Appointment of Judges of the Supreme Court was challenged on the ground that senior Judges of the High Court had been superseded by their appointments---Contention was that the notices be issued to the concerned Judges in the case---Validity---Issuance of notice to the concerned Judges would do more harm than good---Principle of natural justice was not violated if notice was not issued to the concerned Judges---Judges of the superior Courts by their tradition, maintain high degree of comity amongst themselves and were not expected to go to public on their differences over any issue and to litigate in Courts like ordinary litigant in case of denial of a right connected with their office---Judges of the superior Courts could only express their disapproval, resentment or reservations on an issue either in their judgment or order if the opportunity arose, in keeping with the high traditions of their office and their exalted image in the public eye.

Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 ref.

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

----Arts. 177 & 184(3)---Constitutional petition under Art.184(3) of the Constitution before the Supreme Court---Appointment of Supreme Court Judges---Contention was that the Judge of the High Court working as Secretary Law, Justice and Human Rights Division at the time , of his elevation to the Supreme Court having not performed judicial functions as a Judge of the High Court for a period of five years he was not qualified for appointment as a Judge of the Supreme Court and his appointment was also hit by the principle of natural justice 'no one should be Judge in his own cause on account of the pivotal role of the incumbent of the office of Law of the Constitutional appointments ---Validity---contention being .incompatible with the provisions of. Art. 177 of the Constitution was without substance as the disqualification set up in the contention could not be read into Art. 177 of the Constitution---Concerned Judge having held the office as a Judge of the High Court for a period of five years fulfilled the experience related Constitutional requirement on the eve of his appointment as a Judge of the Supreme Court---Appointment of a Judge of a High Court as Secretary Law, Justice and Human Rights Division could not stand in his way for appointment as a Judge of the Supreme Court if he had been a Judge of the High Court for a period of or for periods aggregating not less than five years and period of his service as Secretary Law Justice and Human Rights Division had to be counted towards his tenure as a Judge of the High Court and not excluded therefrom.

The precise contention is that having not performed judicial functions as a Judge of the High Court for a period of five years he was not qualified for appointment as a Judge of the Supreme Court and his appointment was also hit by the cardinal principle of natural justice no one should be a Judge in his own cause' on account of the pivotal role of the incumbent of the office of Law Secretary in the process of the Constitutional appointments. The contention is without any substance as it is incompatible with the provisions of Article 177 of the Constitution and ignores the law laid down by Supreme Court in Malik Ghulam Jilani v. Mr. Justice Muhammad Gul (1978 SCMR 110)- With regard to experience, Article 177 of the Constitution only provides that a person shall not be appointed as a Judge of the Supreme Court unless he has been a Judge of a High Court for a period of or for periods aggregating not less than five years and does not prohibit appointment of a Judge of a High Court as a Judge of the Supreme Court who has not worked as a Judge of the High Court for a period of five years. The disqualification set up by the contention cannot be read into Article 177 of the Constitution. Concerned Judge was appointed as a Judge of the Lahore High -Court on 10th December, 1996 and as Secretary Law, Justice and Human Rights Division on 1st January, 2000. Having held the office as a Judge of the High Court for a period of five years here fulfilled the experience-related Constitutional requirement on the eve of his appointment as a Judge of the Supreme Court.

Appointment of a Judge of a High Court as Secretary Law, Justice and Human Rights Division cannot stand in his way for appointment as a Judge of the Supreme Court if he has been a Judge of the High Court for a period of or for periods aggregating not less than five years. The period of his service as Secretary, Law Justice and Human Rights Division has to be counted towards his tenure as a Judge of the High Court and not excluded therefrom.

Malik Ghulam Jilani v. Mr. Justice Muhammad Gul 1978 SCMR 110 ref.

(g) Constitution of Pakistan (1973)---

----Arts. 177 & 184(3)---Constitutional petition under Art.184(3) of the Constitution before the Supreme Court ---Appointment of Supreme Court Judges---Contentions were that the record pertaining to the appointment of Judges by superseding the senior ones be made public to enable the concerned Judges to meet the views of the judicial consultee and the Appointing Authority with regard to the appointments and that the said record being public record, concerned Judges could not be deprived from its inspection---Validity--Recommendations culminating in the appointments were not justiciable in the absence of difference of opinion between the President of Pakistan and Chief Justice of Pakistan---Apart from the element of confidentiality, making the record of the appointments public would not be in the interest of the institution, the judicial consultee and the concerned Judges for reasons which were too obvious to need elucidation---Disclosure of such .record if adverse to a Judge would indeed block his way for elevation in future and such course of action .would not only put a Judge under the vestige of stigma but also militate against the public interest and shake public confidence in the judiciary.

The recommendations culminating in the appointments are not justiciable in the absence of difference of opinion between the President and the Chief Justice of Pakistan. In any case, apart from the element of confidentiality. making the record of the appointments public would not be in the interest of the institution, the judicial consultee and, the concerned Judges for reasons which are too obvious to need elucidation.

Making the record of appointments public would not be in the interest of the judiciary. Disclosure of such record if adverse to a Judge would indeed block his wav for elevation in future. Furthermore, such course of action would not only put a Judge under the vestige of a stigma but also militate against the public interest and shake public confidence in the judiciary.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

(h) Constitution of Pakistan (1973)---

----Art. 177---Constitution of India, Art. 124(2)---Appointment of Supreme Court Judges---Consultative process---Practice has emerged over the years that while making recommendation for appointment of a Judge of the Supreme Court the Chief Justice .of Pakistan consults the senior puisne Judge---Consultative process in vogue in India cannot be adopted in Pakistan as there exists no provision in the Constitution of Pakistan akin to Art. 124(2) of the Indian Constitution on the strength whereof collegium of Judges has been formed in India.

Hamid Khan, Senior Advocate -Supreme Court, M.A. Zafar, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate-on-Record (absent) for Petitioners (in C.P. No. 1 of 2002).

A.K. Dogar, Advocate Supreme Court and Syed Abul Asim Jafri, Advocate-on-Record (absent) for Petitioner (in C.P. No.6 of 2002).

Mian Allah Nawaz, Advocate Supreme Court and Mehmoodul Islam, Advocate-on-Record (absent) (in C.P. No.7 of 2002).

Dr. Farooq Hasan, Advocate Supreme Court and Rai Muhammad Nawaz Kharal, Advocate Supreme Court for Petitioner (in C.P. No.8 of 2002).

Rashid A. Rizvi Advocate Supreme Court and M.A. Zaidi. Advocate-on-Record for Petitioner (in C. P. No. 12 of 2002).

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Abdul Mujeeb Pirzada, Advocate Supreme Court and M.S. Khattak, Advocate-on Record for the Federation.

K.M.A. Samadani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No. 7 (in C. P. No. 1 of 2002).

M. Jafar Hashmi, Advocate Supreme Court, M.Ghani, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Respondents Nos. 9 to 11 (in C. P. No. 11 of 2002).

Makhdoom Ali Khan, Attorney-General for Pakistan (on Court's Notice).

Maqbool Elahi Malik, Advocate-General, Punjab and Rao Muhammad Yusuf Khan, Advocate-on-Record (on Court's Notice).

Dates of hearing: 18th, 19th, 20th, 21st March; Ist, 2nd, 3rd, 4th, 5th, 8th and 9th April, 2002.

PLD 2002 SUPREME COURT 994 #

P L D 2002 Supreme Court 994

Present: Sh. Riaz Ahmed, C. J., Munir A. Sheikh, Nazim Hussain Siddiqui. Iftikhar Muhammad Chaudhry

and Qazi Muhammad Farooq, JJ

PAKISTAN MUSLIM LEAGUE (Q)

and others‑‑‑Petitioners

versus

CHIEF EXECUTIVE OF ISLAMIC REPUBLIC OF

PAKISTAN and others‑‑‑Respondents

Constitutional Petitions Nos.29 to 33 of 2002, decided on 11th July, 2002.

Conduct of General Elections Order [Chief Executive's Order No.7 of 2002]------

‑‑‑‑Art. 8A‑‑Constitution of Pakistan (1973), Arts. 184(3), 17, 25, 62 & 63‑‑‑Constitutional petition under Art.184(3) of the Constitution before Supreme Court‑‑‑Educational qualification for member of Majlis‑e‑Shoora (Parliament) and a Provincial Assembly‑‑‑Contention was that eligibility of a candidate to become a member of the Parliament or a Provincial Assembly being a graduate as prescribed under Art.8A, Conduct of General Elections Order, 2002 was not only violative of the provisions of Arts. 17 & 25 of the Constitution but also travelled beyond the parameters set by Supreme Court in Syed Zafar Ali Shah's case (PLD 2000 SC 869): that the qualification so prescribed was unreasonable and irrational to view of the prevailing state of literacy to the country and tended to create an elitist class, curtailed the choice and consent of the governed and took away the right of adult franchise and universal suffrage and that the Conduct of General Elections Order, 2002, in essence and spirit, was an amendment in the Constitution which the Chief Executive was not empowered to make in view of fetters imposed by the Supreme Court on his power to amend the Constitution ‑‑‑Validity‑‑Educational qualification prescribed for membership of Assemblies will not only raise their level of competence and change the political culture but will also be an incentive to education‑‑‑Conduct of General Elections Order, 2002 deserved approval being the first step aimed at bringing about a change in the political culture‑‑‑Political culture‑‑‑Concept‑‑‑Provision of Art.62(2) of the Constitution provided that further qualifications in addition to those laid down in Art.62, which dealt with the qualifications for membership of Parliament, could be prescribed by a law by the law‑making body only‑‑‑All citizens were though equal before law and were entitled to equal protection but the State was not prohibited to treat its citizens on the basis of a reasonable classification‑‑‑Principles of equal protection of law and reasonableness of classification enumerated‑‑‑Conduct of General Elections Order, 2002 having been issued by the Chief Executive on the strength of the powers conferred on him by Supreme Court in Syed Zafar Ali Shah's case (PLD 2000 SC 869) was thus a validly promulgated law and did not suffer from any legal defect or infirmity and did not transgress the limits laid down by the Supreme Court as it was linked with the holding of general elections in the country and aimed at good governance which was the hallmark and soul of democracy and the ultimate outcome of general elections‑‑‑Judging the Conduct of General Elections Order, 2002 also in the light of the principles of equal protection of law and reasonable. classification the education related qualification was reasonable and not arbitrary or whimsical because being a step towards transformation of the political culture it was founded on reasonable basis and equally applied to all the graduates and did not discriminate any graduate or create a class within the graduates‑‑Principles.

In the present case the political parties as well as politicians, have challenged Article 8A, Conduct of General Elections Order, 2002 mainly on the ground that it is not only violative of the provisions of Articles 17 and 25 of the Constitution but also travels beyond the parameters set by this Court in Syed Zafar ,Alt Shah's case (PLD 2000 SC 869), it is unreasonable and irrational in view of the prevailing state of literacy in the country and tends to create an elitist class curtail the choice and consent of the governed and take away the right of adult franchise and universal suffrage.

Political History of Pakistan ‑as narrated in the present judgment distinctly points to a political culture, which leaves much to be desired. It demonstrated utter disregard for parliamentary values and deliberate attempt to injure the soul of democracy The establishment of a democratic order and the institutions therein require utmost responsibility on the part of the elected representatives of the people but the record of most of the elected representatives of the four dissolved National and Provincial Assemblies speaks volumes about their psyche, lack of education and sense of responsibility. It also shows that the political field was dominated by a coterie of individuals representing a special class of vested interests, which ensured that if not they, their kith and kin were elected as members of the Assemblies, Regardless of the ideal standards, their main effort was directed to have their hegemony in the political field. There are known cases where through manoeuvring and machination one faction deliberately went to the opposition and the other to the treasury benches.

In the light‑of what has been narrated above, it is crystal clear that the political scenario in Pakistan is a sad tale of failure on the part of the public representatives. Eleven years history of the Political events is an eye opener. Four National Assemblies in succession were dissolved on the ground of misdemeanour on the part of the government, and the party forming it. The grounds on which the Assemblies were dissolved and which were upheld by Supreme Court are sufficient for and necessitate a drastic change in the political culture of the country. No doubt it is the privilege of the public representatives to side with their party in power but it does not absolve them of their responsibility and look at the degree of responsibility that the 13th and 14th Amendments were bulldozed and nobody raised his little finger. against the proposed legislation. These amendments pertained. To the constitutional changes and were not germane to the ordinary law. A constitutional amendment requires sane thinking, deliberation and composition; which were totally absent and none took it seriously. In fact what was practised in those years was nothing but parliamentary dictatorship. A whim of the party' leader in the House could not have become a substitute for the will of the people or their representatives in the Assemblies. Of course. It cannot be totally attributed to lack of education but nevertheless it was one of the most important factors owing to which the representatives had allowed themselves to be driven by their leaders Supreme Court also owes a duty to the posterity. It is a matter of common knowledge that changes in the social, political and economic fields are not brought about at once with a magic wand but involve a journey of thousands miles, which requires a start with the first step. The Conduct of General Elections. Order, 2002 deserves approval being the first step aimed at bringing about a change in the Political culture.

Political culture is the set of attitudes, beliefs, and sentiments which give order and meaning to a political process and which provide the underlying assumptions and rules that govern behaviour in the political system. It encompasses both the political ideals and the operating norms of a polity. Political culture is thus the manifestation in aggregate form of the psychological and subjective dimensions of politics. A political culture is the product of both the collective history of a political system, and the life histories of the members of that system, and thus it. is rooted equally in public events and private experiences.

The change in the political culture with reference to the educational qualification for members of the Assemblies is also necessitated by the fact that with the transfer of power at the grass roots level through implementation of the devolution plan all the civic work has been assigned to the chosen representatives at different levels of the local government and new the business in the Parliament would mainly be confined to lawmaking. The menacing of new laws in the light of the changing circumstances and social and political values is an uphill task. In this view of the matter, it is all the more necessary that the public representatives are well versed with the modern trends, changing social order and the events on the international scene. No doubt wisdom is not related with degrees but this is an exception to the rule. Education certainly broadens the vision adds to knowledge brings about maturity and enlightenment, promotes tolerance and peaceful co‑existence and eliminates parochialism. The educational qualification prescribed for membership of Assemblies will not only raise their level of competence and change the political culture but will also be an incentive to education.

It was urged that the conduct of General Elections Order, 2002 in essence and spirit was an amendment in the Constitution which the Chief Executive was not empowered to make in view of the fetters imposed by. Supreme Court on his power to amend the Constitution. The argument is misconceived inasmuch as the Election Order does not amend the Constitution but is a law within the purview of Article 62(i) of the Constitution.

Section 99 of the Representation‑of the People Act. 1976 also deals with the qualifications for membership of the Parliament and is pari materia with Article 62 of the Constitution. A perusal of Article 62(2) clearly shows that further qualifications in addition to those laid down in Article 62, which deals with the qualifications for membership of Majlis‑e‑Shoora (Parliament), can be prescribed by a law enacted by the law‑making authority: The Conduct of General Elections Order, 2002 having been issued by the Chief Executive on the strength of the powers conferred on him by Supreme Court in Syed Zafar Ali Shah's case is thus a validly promulgated law and does not suffer from any legal defect or infirmity. It also does not transgress the limits laid down in the aforesaid case as it is linked with the holding of general election in the country and aims at good governance which is the hallmark and soul of democracy and the ultimate outcome of general election.

Article 17 of the Constitution clearly allows a citizen to have the right to form associations or unions subject to any reasonable restrictions imposed by law. Similarly, every citizen not being in the service of Pakistan, has the right to form or be a. member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan.

The "Fundamental Right" conferred by Article 17(2) of the Constitution whereby every citizen has been given "the right" to form or to be a member of a political party comprises the right to participaie in and contest an election.

Every citizen has a right to contest election but the principle enunciated in Mian Muhammad Nawaz Sharif's case does not confer an unbridled right on every citizen to contest an election. The right to contest an election is subject to the provisions of the Constitution and the law and only those citizens are eligible to contest election who possess the qualifications contained in Article 62 and the law including the law made under Article .62(i) and do not suffer from disqualifications laid down in Article 63 of the Constitution and the law.

Under Article 25 all citizens are equal before law and are entitled to equal protection of law but the State is not prohibited to treat its citizens on the basis of a reasonable classification. Article 2.5 of the Constitution enshrines basic concept of religion of Islam. However, this is now known as the golden principle of modern jurisprudence, which enjoins that all citizens are equal before law and are entitled to equal protection of law. Following are the principles with regard to equal protection of law and reasonableness of classification:‑‑

(i) That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be‑treated alike;

(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(iii) that different laws can validly be enacted for different sexes, persons to different age groups, persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances may be unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification, which is arbitrary and is not founded on any rational basis, is no classification as to warrant its exclusion from the mischief of Article 25;

(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii) that in order to make a classification reasonable, it should be based‑‑

(a) on an, intelligible differentia .which distinguishes persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.

(a) A law may be constitutional even though if relates to a single individual if, on account of some, special circumstances, or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;

(b) there is always a presumption in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the Constitutional principles. The person, therefore, who pleads that Article 25 has been violated, must make out that not only has he been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the question of the Constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact;

(c) it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds;

(d) the Legislature is free to recognize the degrees of harm and may confine its restriction to those cases where the need, is deemed to be the clearest;

(e) in order to sustain the presumption of constitutionality, the Court, may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation;

(f) while good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the face of the law or, the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of the constitutionality cannot be carried to the extent, of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation;

(g) a classification need not be scientifically perfect or logically complete;

(h) the validity of a rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the Court has

to see is whether the classification made is a just one, taking all aspects into consideration.

Judging the Conduct of General Elections Order, 2002 in the light of the above principles, the education related qualification is reasonable and not arbitrary or whimsical because firstly, being a step towards transformation of the political culture it is founded on reasonable basis and secondly, it equally applies to all the graduates and dogs not discriminate any graduate or create a class within the graduates.

Syed Zafar Ali Shah's case PLD 2000 SC 869; Mst. Parveen Zohra . v. Province of West Pakistan PLD 1957 Lah. 1071; Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Symbol's case PLD 1989 SC 66; Ihsanul Haq Piracha v. Wasim Sajjad PLD 1986 'SC 200; Ata Elahi v. Mst. Parveen Zohra PLD 1958 SC 298; Farooq Ahmed Khan Leghari's case PLD 1999 SC 57; Nisar Ahmed v. Federation of. Pakistan 1999 SCMR 1338; Benazir Bhutto's case PLD 1988 SC 416; Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC 673; Haji Saifullah Khan's case PLD 1989 SC 166; N.P. Ponnuswarni v. Returning Officer, Namakkal AIR 1952 SC 64; Jamuna Prasad v. Lachhi Ram AIR 1954 SC 686; Hamida Begum v. Provincial Election Authority PLD 1966 Lah. 560; Jyoti Basu v. Debi Ghosal AIR 1982 SC 983; Dhartipakar v. Rajiv Gandhi AIR 1987 SC 1577; I.A. Sherwani's,case 1991 SCMR 1041; AI‑Jehad Trust's case PLD 1996 SC 324; Begum Shamsunnehar v. The Speaker, East Pakistan Provincial Assembly, Dacca PLD 1965 SC 120; Mir Ghous Bakhsh Bizenjo v. Islamic Republic of Pakistan PLD 1976.Lah. 1504; .Ata Muhammad Mari v. Federation of Pakistan 1994 CLC 409; Dr. Tariq Nawai v. Government of Pakistan 2000 SCMR 1956: Government of Sindh v. Khalil Ahmed 1994 SCMR 782; Lahore Improvement Trust v Custodian of Evacuee Property PLO 1971 SC 811; Ch. Muhammad Yusuf v. Azad Government PLD 2001 Azad J&K 60; 2002 CLC 1130; Dosso's case PLD 1958 SC (Pak.) 533; PLD 1992 SC 646; PLD 1998 SC 388 and International Encyclopaedia of the Social Sciences by David L. Sills, Vol . 12, p. 218.ref.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Petitioner (in Constitutional Petition No. 29 of 2002).

Qazi Muhammad Anwar, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner (in Constitutional Petition No. 30 of 2002).

Qazi Abdul Basit, Advocate Supreme Court for Petitioner (in Constitutional Petition No. 31 of 2002).

Shakil Ahmad, Advocate Supreme Court for Petitioner (in Constitutional Petition No. 32 of 2002).

Islamic Republic of Pakistan (Sh. Riaz Ahmed, C J)

Aftab Gul, Advocate Supreme Court with M. Shan Gul, Advocate for Petitioner (in Constitutional Petition No. 33 of 2002).

Makhdoom Ali Khan. Attorney‑General for Pakistan, Maqbool Elahi Malik, Advocate‑General, Punjab, Jehanzeb Rahim, Advocate General, N.‑W.F.P., M. Sarwar Khan, Addl. A.‑G., Sindh, Akhtar Zaman, Addl. A.‑G., Balochistan, Khurram Hashmi, Advocate (with Permission) and Mehr Khan Malik, Advocate‑on‑Record for Respondents.

Dates of hearing: 9th, 10th and 11th July, 2002.

PLD 2002 SUPREME COURT 1033 #

P L D 2002 Supreme Court 1033

Present: Sh. Riaz Ahmad, C.J, Munir A. SheikhNazim Hussain Siddiqui, Iftikhar Muhammad, Chaudhry, Qazi Muhammad Farooq, Rana Bhagwandas, Mian Muhammad Ajmal, Javed Iqbal, Abdul Hameed Dogar, Tanvir Ahmed Khan, Sardar Muhammad Raza Khan, Khalil‑ur‑Rehman Ramday, Muhammad Nawaz Abbasi and Faqir Muhammad Kkokhar, JJ

In re: MUHAMMAD SADIQ LEGHARI, REGISTRAR HIGH COURT OF SINDH

Intra‑Court Appeal No.2 of 2002, decided on 23rd August, 2002.

(On appeal from the order of a Division Bench of this Court dated 17‑7‑2002 under section 4 of the Contempt of Court Act).

(a) Contempt of Court Act (LXIV of 1976)‑‑

‑‑‑‑S. 7‑‑‑Action for wilful disobedience of lawful order of the Court‑‑‑Procedure‑‑‑ Requirement was that a decision should first be taken by application of judicial mind to 'the facts and circumstances of the case alongwith the material brought on record while considering the pleas raised by the accused as to whether it was a fit case for proceeding against him for contempt of Court and in case the Bench had decided to proceed further, the procedure laid down in S.7, Contempt of Court Act, 1976 had to be followed in that a formal show‑cause notice of contempt containing charge‑sheet in clear terms was to be issued and inquiry held and thereafter decision taken whether the accused was guilty of contempt.

(b) Contempt of Court Act (LXIV of 1976)‑‑

‑‑‑‑S. 10(2‑A)‑‑‑Intra‑Court appeal before Supreme Court‑‑‑Order of issuance of show‑cause notice by a Bench of Supreme Court‑‑‑Appellant prayed before the Supreme Court for discharge of said notice‑‑‑Validity‑‑‑Appellate Court (Supreme Court) was fully empowered to decide the matter finally apart from the fact that in appeal the entire matter was re‑opened.

‑‑‑‑Art. 204‑‑‑Contempt of Court Act (LXIV of 1976), Ss. 4 & 10‑‑Contempt of Court ‑‑Intra‑Court appeal 'before Supreme Court‑‑‑Distinction has to be made between "a case of‑contempt of court based on defiance or violation of a judicial order" and "an act of mere non‑submission of a report called for by the Court by an officer of the Court"‑‑‑Requirements‑‑‑Mere non‑compliance of an order, in the absence of contumacy, would not amount to contempt of court‑‑‑Principles.

A distinction has to be made between a case of contempt of Court based on defiance or violation of a judicial order in the nature of temporary injunction by a party whereby such party was restrained from acting in a particular manner but in spite of service of notice or having come to know of the passing of such order, acts in a manner to alter the position to his advantage so as to frustrate the temporary injunction and an act of mere non-submission of a report called for by the Court by an Officer of the Court. In the former case, the Court would take strict view and mere act of defiance of the judicial order would by itself justify raising of presumption that the doer of the act was guilty of contempt of Court unless he proves otherwise whereas in the latter case, it has to be determined on application of judicial mind as to whether the accused deliberately did not submit the report on account of having personal interest in any of the parties to cause damage to the other party in the case in which the report was called or had any personal interest which, if proved or established, would make the act of non-submission of the report mala fide. In the absence of any of these factors and element of contumacy, his conduct could not be held to have suffered from mala fides or contempt of Court. Mere non‑compliance of an order, in the absence of contumacy, would not amount to contempt of Court.

Behawal v. The State PLD 1962 SC 476 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 204‑‑‑Contempt of Court Act (LXIV of 1976), Ss. 4 & 10‑‑Contempt of Court‑‑‑Intra‑Court appeal before Supreme Court‑‑‑Supreme Court had issued an order calling for the report from the Registrar of High Court about a matter decided by the High Court which report was alleged to be delayed‑‑‑Appellant (Registrar of the High Court) was convicted under S.4, Contempt of Court Act, 1976 read with Art.204 of the Constitution and sentenced to simple imprisonment till the rising of the Court and fine of Rs.3,000 or in default to undergo 3 days' simple imprisonment ‑‑‑Validity‑‑Reply of appellant was to bring to the knowledge of the Supreme Court Bench the manner in which the matter in question was dealt with and processed and was not with a view to justify the inaction on his part or qualify the unconditional apologies tendered by him in the report submitted by him‑‑‑Neither there was any finding by the Bench that the facts as stated by the appellant in his reply .were factually wrong nor there was arty contumacy on his part based on ulterior motives or mala fides, therefore, keeping in view the facts that the appellant having been not found to have any personal interest in the matter, as such, had no reason to delay the making of the report with a view to benefit any of the parties in the case‑‑Matter on which the report was called was a delicate one that the appellant could not make any report unless he had consulted the Judges in the High Court who had dealt with the case, who only knew the factual position‑‑Appellant had stated in the reply that the concerned Judge of the High Court had advised him to seek further time so that the Judge may be able to submit proper reply based on the facts leading to the disposal of the case in question‑‑‑Appellant, in such view of the matter, in no manner could be said to be guilty of contumacy or to have shown any disrespect or dealt with the case casually as held by the Bench of the Supreme Court‑‑‑Appellant was Registrar of the High Court at the relevant time, was an honest judicial officer, ‑who had 27 years' meritorious service in the Provincial Judiciary with unblemished record and there was no reason to presume or to hold that he would think of showing disrespect to the ,order of the Supreme Court‑‑Appellant, therefore, was not guilty of any contumacy and delay in submission of the report was caused by circumstances not fully within his control and his conduct did not constitute contempt of court as contemplated by. Art.204 of the Constitution and the Contempt of Court Act, 1976 as such it was not a tit case for issuance of formal show‑cause notice of contempt of court muchless punishment‑‑‑ Supreme Court accepted the Intra‑Court appeal of the appellant, set aside the impugned judgment and discharged the notice issued to the appellant.

Per Rana Bhagwandas, J.‑‑

"One of the most important powers of Court of law is its power to give orders and make directions. Very often it has to make an order commanding a person to do something or restraining him in some way. If such person disobeys the command of the Court latter has one weapon in its armoury which it can use. It can punish him for contempt of Court either by fine or by imprisonment. This kind of contempt has characteristics which are common to all contempts of Court. Proceedings in contempt strictly speaking are neither civil not criminal. These are proceedings sui generis in nature. It may .be pertinent to observe further that every failure to comply with an order may not amount to be criminal contempt warranting action therefor. There tray be cases where there are justifiable reasons or causes for non adherence of an order of a Court which would depend on the facts of each case. There may also be cases where non‑compliance of the order was not wilful or deliberate. Likewise there may be instances where compliance with an order of a Court may be beyond the scope of authority of a person to whom it is directed. Each‑case, therefore, has to be examined in its proper perspective having regard to the facts and circumstances of a case. Where an order was passed by a superior Court calling upon a person to do a particular act, it is incumbent upon such person to report prompt compliance rather than to treat it lightly or casually. If the conduct and attitude of a person bound by an order of the Court be such which may be considered as contumacious or amounting to disrespect, he tray be proceeded for contempt.

Cases would, however, arise where the contemner, at the first available opportunity, surrenders himself at the mercy of the Court and offers an unconditional and sincere apology when justifying his conduct. It would thus appear that wilful disobedience to a judgment or order requiring a person to do an act or to abstain from doing anything is a contempt punishable by attachment or committal. An order passed by a Court of law must be implicitly observed, every diligence must be exercised to obey it in letter and spirit, and any proceedings resulting in a breach would tantamount to an act of contempt. The law takes a very serious view of contempt of the orders of the superior Courts by a person including a subordinate Court. A half hearted apology tendered at a late stage while a plea of justification has been taken in the written statement of a respondent, could not be regarded as sincere one.

In the present, case it appears, that the conduct of the appellant in complying with a lawful order of Supreme Court was neither diligent nor prompt in that no attempt was made to submit the interim report on receipt of initial order of Supreme Court calling for a report. This order was received in the office of the appellant on 6th April, 2002 yet no response was received till 16‑5‑2002 when the petition came up for hearing before Supreme Court. In the meanwhile a reminder letter was issued to the appellant by the Assistant Registrar of Registry vide letter dated 4th May, 2002 received in the office of the appellant on 8‑5‑2002 but, as observed, without any response. It appears that entire exercise was undertaken after the receipt of show cause notice dated 15‑5‑2002 requiring the appellant to appear in person alongwith requisite report and to show cause as to why action for willful disobedience of lawful order of Supreme Court be not initiated against him. The fact that the letter of Supreme Court was endorsed to the office in routine would clearly tend to show that the order of Supreme Court was treated casually and not diligently. In terms of Article 190 of the Constitution all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court. Appellant having offered an unconditional apology at the top of his reply to the show‑cause notice followed by narration of facts leading to delay in, the submission of the requisite report requires serious consideration. There was no apparent and obvious reason or mens rea on the part of the appellant to have wilfully flouted the order of Supreme Court, warranting stern action for contempt. Unconditional apology of the appellant tendered at the earliest could have been accepted. This would be consistent with the provisions of section 4 of the Contempt of Court Act, 1976 which, inter alia, stipulates that a person accused of having committed contempt of Court may at any stage submit an apology and the Court, if satisfied with its bona fides, may discharge him or remit his sentence.

No doubt order of show‑cause notice is appealable under section 10(2) of the Contempt of Court Act, 1976. Such appeal must be filed within thirty days of the impugned order before this Court. In the present case show‑cause notice dated 15‑5‑2002 having merged in the final judgment dated 17‑7‑2002 passed by two members Bench of Supreme Court would loose its efficacy and there would be no occasion for setting aside the same at this stage. Vires of the said notice can be legally examined in Intra Court Appeal by Supreme Court and Supreme Court is competent to condone the delay in an Intra‑Court Appeal. Fact of the matter remains that once an appeal has been filed against a final judgment initial show‑cause notice would pale into insignificance. In the memo. of appeal appellant has impugned the vires of the final judgment dated 17‑7‑2002 and simultaneously prayed for vacating the show‑cause notice dated 15‑5‑2002 against which appeal preferred on 19‑7‑2002 was patently out of time. However, instead of showcause notice dated 15‑5‑2002, order dated 28-3‑2002 calling for a resort has been discharged."

Iqbal Kazi, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellant.

Makhdoom Ali Khan, Attorney‑General for Pakistan (on Court's Notice).

Date of hearing: 22nd July, 2002.

PLD 2002 SUPREME COURT 1048 #

P L D 2002 Supreme Court 1048

Present: Nazim Hussain Siddiqui, Qazi Muhammad Farooq and Mian Muhammad Ajmal, JJ

AYUB MASIH ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal NoA1 of 2002, decided on 15th August, 2002.

(On appeal from the judgment dated 24‑7‑2001 of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No. 159 of 1998 and Murder Reference No. 122 of 1998).

(a) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 295‑C‑‑‑Constitution of Pakistan (1973). Art. 185(3)‑‑‑Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑Leave to appeal was granted by the Supreme Court to consider whether the principles of safe administration of justice and evaluation of evidence in criminal cases laid down by the Supreme Court had been followed in the case while appraising the prosecution evidence and that whether the offence of blasphemy covered by S.295‑C, P.P.C. fell within the purview of Hadd and the evidence for conviction of the amused must undergo the test of Tazkiatul‑Shahood.

(b) Penal Code (XL of 1860)‑----

‑‑‑‑S. 295‑C‑‑‑Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑‑Burden of proof‑‑‑Defiling words highlighted in the F.I.R. certainly constituted the offence under S.295‑C, P.P.C. but the prosecution had failed to prove its case against the accused beyond any reasonable doubt‑‑‑Prosecution being obliged to prove its case against the accused beyond any reasonable doubt and if it failed to do so the accused was entitled to benefit of doubt as of right‑‑‑Rule of benefit of doubt was essentially a rule of prudence which could not be ignored while dispensing justice in accordance with law‑‑‑Doubt must be reasonable and not imaginary‑‑‑Said rule was based on the maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted" and occupied a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h.) that the "mistake of Qazi (Judge) in releasing a criminal is better, than his mistake in punishing an innocent".

In the present case the defiling words highlighted in the F.I.R. certainly constitute the offence under section, 295‑C, P.P.C. but the prosecution has failed to prove its case against the accused beyond any reasonable doubt The accused is, therefore, entitled to the benefit of doubt which was withheld by the two Courts without the support of sound reasons. The prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. If there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted": In simple words it means that utmost care should be taken by the Court in convicting an accused. This rule is antithesis of haphazard approach or reaching a fitful decision in a case. This rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h.) "the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an, innocent.

The State v. Mushtaq Ahmed PLD 1973 SC 418 ref.

‑‑‑‑Crime and punishment‑‑‑Rule of benefit of doubt occupies a pivotal place in the Islamic Law and enforced rigorously.

(d) Criminal trial‑‑‑

‑‑‑‑ Benefit of doubt, a golden rule‑‑‑Applicability‑‑‑Principles.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 295‑C‑‑‑Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑‑Reappraisal of evidence‑‑‑Allegation against the accused was that on the day of occurrence while the accused was sitting in a street the complainant and his companions came there by chance where the accused exalted Christianity, maligned Islam, uttered certain derogatory words about the Holy Prophet (p.b.u.h.) and not only advised the complainant and his companions to read the book of Salman Rushdi but also asked them to accompany him to Karachi for the purpose‑‑‑Complainants and his companions are admittedly labourers and had come across the accused by chance‑‑‑ Nothing was available on record to suggest even remotely that the derogatory remarks were made by the accused as a result of an argument, a controversy, a discussion or a wrangle‑‑‑No evidence was 'available to show that the accused was fond of delivering sermons‑‑‑Held, in such backdrop there was no occasion for uttering the derogatory remarks attributed to the accused besides asking ordinary labourers to read Salman Rushdi's book sounded ridiculous and preposterous‑-‑Prosecution story thus did not ring true intrinsically and was too odd to stand to reason‑‑‑Such aspect which was overlooked throughout, was by itself sufficient to demolish the prosecution case‑‑‑Where the evidence created doubt about the truthfulness of the prosecution story, its benefit has to be given to the accused without any reservation.

Muhammad Ilyas v. The State 1997 SCMR 25 ref.

(f) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 295‑C‑‑‑Criminal Procedure Code (V of 1898), S.154‑‑‑Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑Reappraisal of evidence ‑‑‑Unexplained inordinate delay in lodging the F.I.R. coupled with the presence of the elders of the area at the time of, recording of F.I.R. led to the inescapable conclusion that the F.I.R. was recorded after consultation and deliberation and fabrication of a story and false implication could not be excluded altogether‑‑‑Unexplained inordinate delay in lodging the F.I.R. was an intriguing circumstance which tarnished the authenticity of the F.I.R., cast a cloud of doubt on the entire prosecution case and was to be taken into consideration while evaluating the prosecution evidence‑‑‑Delay in lodging the F.I.R., in the present case assumed great significance inasmuch as the prosecution story was doubtful from the outset and the prosecution evidence was remarkable in weakness only.

The unexplained delay in lodging the F.I.R. coupled with the presence of the elders of the area at the time of recording of F.I.R. leads to the inescapable conclusion that the F.I.R. was recorded after consultation and deliberation. The possibility of fabrication 'of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the F.I.R. is an intriguing circumstance which tarnishes the authenticity of the F.I.R., casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the F.I.R. is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused. In the present case the delay in lodging the F.I.R. has assumed great significance inasmuch as the prosecution story is doubtful from outset and the prosecution evidence is remarkable in weakness only.

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

‑‑‑‑S. 154‑‑‑Delay in lodging the F.LR.‑‑‑Implications.

(h) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 295‑C‑‑‑Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑‑Reappraisal of evidence‑‑‑Credibility and credentials of the complainant were not above board and he was not an independent and truthful witness as the defence evidence on record indicated that he had a motive to falsely implicate the accused‑‑‑Prosecution evidence on which conviction of the accused rested consisted of the statements of complainant and his companion and testimony of both the complainant and witness neither inspired confidence nor could be termed as evidence having come from an unimpeachable source‑‑‑Prosecution story did not ring true and the possibility of fabrication and false implication could not be ruled out as the F.I.R. was lodged after consultation and deliberation and the delay of at least six hours in lodging the same had not been explained‑‑‑Such factors strongly reacted on the credibility of both the witnesses who were chance witnesses on their own showing‑‑‑Prosecution witness made improvement on the prosecution story which made the prosecution evidence discrepant and the testimony of the witness unreliable‑‑‑Motive of the complainant was to grab an Ihata in possession of the father of accused and statement of Illaqa Patwari made it manifest that during pendency of the present case the portion of Ihata in possession of accused's father was allotted to the complainant and he had taken its possession as well‑‑‑Accused was indubitably the beneficiary of the case, therefore, placing reliance on the statement of complainant would not be conducive to safe administration of justice‑‑‑Conviction and sentence of the accused, in circumstances, were set aside by the Supreme Court and he was acquitted of the charge levelled against him.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 ref.

(i) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑‑S. 295‑C‑‑‑Criminal Procedure Code (V of 1898), S.342‑‑‑Allegation use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑Reappraisal of evidence‑‑‑Parallel version of the incident was given by the accused in his statement under S.342, Cr.P.C. wherein he had attributed fabrication of the case and his false implication to another person and his relatives as well as the complainant‑‑‑No evidence on record showed any connection of the said other person and his relatives with the case but there was sufficient evidence which clearly suggested that the case against the accused was the outcome of machination of the complainant who wanted to grab the Ihata in possession of the father of the accused‑‑‑Defence version thus had an edge over the prosecution version which suffered from inherent improbabilities and infirmities of a serious nature‑‑‑Effect‑‑‑Held, in case of two versions of the incident both the versions of the incident were to be kept in juxtaposition to find out as to which version was more probable but in the present case the defence version had been assessed in isolation and not in Juxtaposition with the prosecution case because had it been so assessed the conclusion would have been exactly the opposite‑‑‑Conviction and sentence of the accused, in circumstances, were set aside by the Supreme Court and he was acquitted of the charge levelled against him.

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

‑‑‑‑S. 295‑C‑‑‑Criminal Procedure Code (V of 1898), S.340(2)‑‑‑Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑Reappraisal of evidence‑‑‑ Refusal of accused to record his statement on oath in disproof of the charge‑‑‑Impact‑‑‑Accused cannot be compelled to make a statement on oath and on his failure to do so no adverse inference can be drawn against him.

Ameer Khatun v. Faiz Ahmed PLD 1991 SC 787 and Munawar Ali v. The State PLD 1993 SC 251 ref.

(k) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 295‑C‑‑‑Allegation of use of derogatory remarks etc. in respect of the Holy Prophet (p.b.u.h.)‑‑‑Reappraisal of evidence‑‑‑Accused was found to be entitled to acquittal on merits by the Supreme Court‑‑‑Contention on behalf of the accused as to whether offence of blasphemy covered by S.295‑C, P.P.C. fell within the purview of Hadd and the evidence for conviction of the accused must undergo the test of the Tazkia‑tul‑Shahood was left open by the Supreme Court as the plea was raised as alternate plea with rider that same may be treated as not pressed and the question be left open if the accused was found entitled to the benefit of doubt on merits of the case and acquittal.

Abid Hassan Minto, Naeem Sheikh and M.L. Shahani, Advocates Supreme Court and Mehmood A. Qureshi, Advocate‑on‑Record (absent) for Appellant.

Tariq Mehmood Khokhar, Additional Advocate-General, Punjab for the State.

Date of hearing: 15th August, 2002.

PLD 2002 SUPREME COURT 1060 #

P L D 2002 Supreme Court 1060

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

MUMTAZ ALI SHAH---Appellant

versus

CHAIRMAN, PAKISTAN TELECOMMUNICATION COMPANY LTD., H.Q., ISLAMABAD and 6 others---Respondents

Civil Appeal No.636 of 1998, decided on 23rd May, 2002.

(On appeal from the judgment dated 30-6-1997 of the Federal Service Tribunal, Islamabad in Appeal No. 218(R) of 1997).

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

----S. 494---Withdrawal from prosecution---Honourable acquittal ---Scope--When the charge was withdrawn by the Competent Authority or by the Public Prosecutor under 5.494; Cr.P.C. it would be presumed that the acquittal was without any benefit of doubt---Honourable acquittal or otherwise was totally immaterial and out of place---Honourable acquittal was a phenomenon totally alien to the Criminal Procedure Code, 1898 as such the same was as self-coined terminology not supported by the Code---Effect of withdrawal under S.494, Cr.P.C. was only that if the withdrawal occurred before the framing of charge, it entailed upon the discharge of accused and if it occurred after the framing .of charge, it entailed upon the acquittal; it was as good an acquittal as it would have been under any other circumstance--Acquittal due to withdrawal of prosecution was placed on a better footing because the prosecution was of the view, that there were no chances of conviction and the charge was groundless---To coin and import a term like 'honourable acquittal' was not at all justified and was nowhere provided in the Criminal Procedure Code,, 1898.

(b) Civil Servants Act (LXXI of 1973)---

----S. 9---Criminal Procedure Code (V of 1898), S.494---Promotion--Withdrawal of criminal case---Criminal case was registered against the civil servant and he was not promoted whereas civil servants junior to him were promoted ---As the prosecution against the civil servant was-withdrawn by the Authorities, he claimed his promotion---Authorities refused promotion to the civil servant on the ground that withdrawal of prosecution against him was not honourable acquittal---Order passed by the Authorities was maintained by Service Tribunal---Validity---Civil servant, in the present case, was wrongly denied his promotion when juniors to him were got promoted---Such withholding of promotion was glaring discrimination because without there being any evidence on record of criminal case, nobody could presume, as to, whether it was a clean acquittal or acquittal through benefit of doubt---Order passed by, the Authorities and judgment passed by the Service Tribunal were set aside by the Supreme- Court and appeal ' was allowed.

----Acquittal---Clean acquittal and acquittal through benefit of doubt amounting to honourable acquittal---Differentiation---Clean acquittal and acquittal through benefit of doubt is self-coined proposition having no nexus with the provisions of Criminal Procedure Code, 1898---Acquittal is an acquittal simpliciter and, must entail upon all consequences of pure acquittal.

Appellant in person.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate- on-Record for Respondents Nos. 1 to 4.

Respondents Nos. 5 and 7: Ex parte

Nemo for Respondent No.6.

Date of hearing: 23rd May, 2002.

PLD 2002 SUPREME COURT 1063 #

P L D 2002 Supreme Court 1063

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

JAMSHED AKHTAR‑‑‑Appellant

versus

PAKISTAN AGRICULTI,TRAL STORAGE AND SERVICES CORPORATION LIMITED (PASSCO) through Managing Director and another‑‑‑Respondents

Civil Appeal No. 1266 of 2001, decided on 29th May, 2002. .

(On appeal from the judgment dated 22nd January, 2001 of the Federal Service. Tribunal, Islamabad, passed in‑ Appeal No. 1275(L) of 1999).

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑

‑‑‑‑S.O. 15(4)‑‑‑Pakistan Agricultural. Storage and Services Corporation Ltd. (Efficiency and Discipline) Regulations, 1977‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider whether the petitioner was a workman having certain valuable rights protected under S.0.15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and Federal Service Tribunal, without assigning any reason dismissed the appeal arbitrarily holding that the petitioner was governed by Pakistan Agricultural Storage and Service Corporation Ltd. (Efficiency and Discipline) Regulations, 1977.

(b) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.0.15(4)‑‑‑Dismissal from service‑‑Pakistan Agricultural Storage and Service Corporation‑‑‑Status of employees‑‑‑Provisions of Service Tribunals Act, 1973‑‑‑Applicability‑‑Employee was dismissed from service on the charge of illegal and unauthorised retention of official record‑‑‑Employee was dismissed from service after departmental inquiry‑‑‑Appeal against the order of dismissal was filed before the Service Tribunal which was also dismissed‑‑‑Employee raised the plea that he was civil servant only for the limited purpose and provisions of S.O.15(4) 'of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were attracted in his case‑‑‑Validity‑‑‑Corporation (Employer) was registered under the Companies Act, 1913, as a private limited Company wherein the Federal Government had 25 % shares, whereas the remaining shares were with other nationalized scheduled Banks‑‑‑Corporation being administratively controlled by the Federal Government, employees of the Corporation were deemed to be civil servants within the meaning of S.2‑A of Service Tribunals Act, 1973, only for the limited purpose to avail the remedy of appeal before the Service Tribunal‑‑‑Simply by insertion of 5.2‑A in the Service Tribunals Act, 1973, the status of the employee would not be affected but the terms and conditions of his service would be governed by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Judgment passed by the Service Tribunal did not suffer from any illegality and the same was maintained by Supreme Court‑‑‑Appeal was dismissed.

United Bank Limited through President v. Shahmim. Ahmed Khan and 41 others PLD 1999 SC 990 and Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 distinguished.

Muhammad Zaman Qureshi, Advocate Supreme Court instructed by Syed Abul Aasim Jafri, Advocate‑on‑Record (absent) for Appellant.

Kh. Muhammad Akram, Advocate Supreme Court instructed by Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 29th May, 2002.

PLD 2002 SUPREME COURT 1068 #

P L D 2002 Supreme Court 1068

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

LAHORE CANTONMENT COOPERATIVE HOUSING SOCIETY LIMITED, LAHORE, CANTT through Secretary‑‑Appellant

versus

Dr. NUSRAT ULLAH CHAUDHRY and others‑‑‑Respondents

Civil Appeal No. 1005 of 1995, decided on 22nd May, 2002.

(On appeal from the judgment dated 23‑2‑1994 of the Lahore High Court; Lahore in' Writ Petition No. 13258 of 1993).

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Disputed question of fact‑‑‑Contractual liability‑‑‑Disputed question pertaining to contractual liability cannot be adjudicated by High Court in its Constitutional jurisdiction under Art. 199 of the Constitution‑‑‑Whenever there is a disputed question of fact particularly referring to a contractual liability, same requires the extensive recording of evidence and hence only a Civil Court is competent to do that‑‑‑Recording of evidence is not permissible in exercise of Constitutional jurisdiction‑‑‑Constitutional petition is not maintainable in circumstances.

Secretary to tire Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi PLD 2001 SC 415; Shah Wali v. Ferozuddin 2000 SCMR 718; Syed Asif Majeed v. A.D.C.(C)/ASC(L), Lahore 2000 SCMR 998; Punjab Small Industries Corporation v. Ahmad Akhtar Cheema 2002 SCMR 549; Muhammad Mumtaz Masud v. House Building Finance Corporation 1994 SCMR 2287 and Shamshad Ali Khan v. Commissioner, Lahore 1969 SCMR 122 rel.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑Contractual liability‑‑‑ Interference by High Court in exercise of Constitutional jurisdiction under Art.199 of the Constitution‑‑‑Contract was entered between the parties to construct a hospital for public welfare‑‑Authorities provided land to the respondents for the construction‑‑‑Despite having lapse of 16‑1/2 years the respondents failed to construct the hospital, resultantly the authorities cancelled the contract‑‑‑Respondents assailed the act of cancellation of the contract before High Court in Constitutional petition, which was allowed and the order of cancellation was set aside‑‑Contention of the Authorities was that the High Court could not resolve the contractual obligations in exercise of Constitutional jurisdiction under Art.199 of the Constitution‑‑‑Validity‑‑‑Contractual liability, in the present case, could not be enforced because with regard to the terms and conditions of the contract and with regard to numerous acts and allegations of the parties nothing could have been resolved without recording of evidence‑‑Authorities had rightly cancelled the contract and High Court had no jurisdiction to hold anything about a contractual liability for which the jurisdiction under Art. 199 of the Constitution could not be assumed‑‑‑Order passed by the High Court was set aside arid the order passed by the Authorities about cancellation of the contract was upheld‑‑‑As the land subject‑matter of the contract was earmarked for a benevolent purpose of giving treatment to the public at large, therefore, Supreme Court directed that the land would not be put to any other purpose‑‑‑Supreme Court further directed the Authorities to construct a hospital theirselves.

‑‑‑‑S. 55‑‑‑Time as essence of contract‑‑‑Scope‑‑‑Parties for the sake of extending time had entered into second contract, thus time was of the essence of contract in circumstances.

(d) Contract‑‑

‑‑‑‑ Alteration of terms of contract‑‑‑Scope‑‑‑Whatever be the term or terms of a contract whether specific or general, whether of essence or otherwise, the same can be altered or modified with mutual consent of the parties.

M. Maqbool Sadiq, Advocate Supreme Court for Appellant.

K.M.A. Samdani, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondents Nos. 1 to 3.

Respondents Nos. 4 and 5: Ex pane

Date of hearing: 22nd May, 2002.

PLD 2002 SUPREME COURT 1074 #

P L D 2002 Supreme Court 1074

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza

and Sardar Muhammad Raza Khan, JJ

KAY BEE INTERNATIONAL (PVT.) LTD., ISLAMABAD

through Managing Director---Appellant

versus

SECRETARY TO THE GOVERNMENT OF PUNJAB, INDUSTRIES AND MINERAL DEVELOPMENT DEPARTMENT, LAHORE and others---Respondents

Civil Appeals Nos. 1585 and 1586 of 1995, decided on 4th June, 2002.

(On appeal from the judgment dated 2-10-1995 of Lahore High Court, Rawalpindi Bench passed in Writ Petitions Nos.301 and 302 of 1995).

(a) Punjab Mineral Concession Rules, 1986--

----R. 101---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider, whether High Court was competent in maintaining the order of Authorities even though the bidder had failed to comply with the prerequisite i.e. 1/4th of the call deposit with his tender and the effect of his withdrawal of the deposit amount even though it was deficient.

(b) Auction--

----Public auction--Duty of Government---Withdrawal of earnest money--Approach of the Government in awarding contracts and licences not to be based upon arbitrariness and discrimination---Once the bidder withdrew the earnest money, he was out of arena and could not be considered for the award of contract.

---- Public auction--Inviting sealed tenders----Object---Inviting sealed tender is to promote healthy competition and to provide equal opportunities to all the prospective bidders---By following different mode the object is frustrated and shakes the confidence of public also.

(d) Punjab Mineral Concession Rules, 1986----

----R. 101---Expression 'inviting sealed tenders on such terms and conditions as may be prescribed by it'---Scope---Sealed tenders were invited by the Authorities to grant the lease of coal mines---One of the terms of the tender was that the bidder, was supposed to deposit 25% of the bid amount with his sealed tender---Respondent failed to deposit 25% of the bid amount as initially being unsuccessful he had withdrawn the amount deposited---Despite withdrawal of the amount the Authorities awarded the tender to the respondent---Validity---Licensing Authority was competent under R.101 of Punjab Mineral Concession Rules, 1986, to prescribe some additional terms and conditions as it may deem fit---Terms and conditions prescribed in the tender notice were to be considered as additional terms and conditions in addition to the conditions of grant of lease---Supreme Court had restrained from interpreting R.101 of Punjab Mineral Concession Rules, 1986, in a way which might render the terms of the notice as null and void---Process of awarding contract through sealed tenders would become meaningless if it was left to be modified/altered at the cost of other bidders, only to accommodate a person of choice---Both the rules of 'tender notice' and of 'grant of lease' under Punjab Mineral Concession Rules, 1986, were inseparable for just and fair transaction--- Judgment passed by High Court in favour of the respondent was set aside and the contract awarded to the respondent was cancelled---Supreme Court directed the Authorities to invite fresh sealed tenders for grant of lease according to law---Appeal was allowed accordingly.

Hashmat Ali Habib, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos. 1 and 2 (in both Appeals).

Nemo for Respondent No.3 (In Appeal No. 1586 of 1995). .

Date of hearing: 4th June, 2002.

PLD 2002 SUPREME COURT 1079 #

P L D 2002 Supreme Court 1079

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

FEDERAL GOVERNMENT EMPLOYEES' HOUSING FOUNDATION through Director‑General, Islamabad and another‑‑Appellants

versus

MUHAMMAD AKRAM ALIZAI, DEPUTY CONTROLLER, PBC, ISLAMABAD‑‑‑Respondent

Civil Appeal No.899 of 1998, decided on 18th June, 2002.

(On appeal from the order dated 5‑4-1997 passed by Federal Service Tribunal, Islamabad, in Appeal No. 35(R) of 1997).

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

‑‑‑‑Art. 212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider the question whether the allotment of plot claimed by the respondent in the housing scheme of the Housing Foundation fell within the terms and conditions of service so as to attract the jurisdiction of Federal Service Tribunal established under Service Tribunals Act, 1973.

(b) Federal Government Employees Housing Foundation‑---

‑‑‑‑ Object and role of the Foundation‑‑‑Allotment of plots‑‑‑Remedy against allotment‑‑‑ Federal Government Employees Housing Foundation having assigned the role of an agency of Federal Government was working for the benefit of employees of Federal Government including the employees of the Institutions, Corporations and Organizations controlled by the Federal Government‑‑‑Housing Foundation would stand on different footing to that of the private companies incorporated under the Companies Ordinance, 1984‑‑Grievance of a person relating to the policy of allotment of plots by Housing Foundation or an act done by its functionaries in breach of its policy or infringement of any right of any individual under the policy, would be justiciable by an appropriate forum‑‑‑Notwithstanding non‑statutory status of Housing Foundation, it being an official body while following its Rules in the conduct of its business, must act fairly, justly and in accordance with law‑‑‑Acquisition of land by Housing Foundation through Land Acquisition Collector, preparation of Schemes, allotment of residential plots and conducting ancillary and `incidental matters, must be dealt with by the functionaries of Housing Foundation strictly in accordance with law‑‑Housing Foundation was initially established on the directive of Prime Minister and to all intents and purposes, its control was given to Ministry of Housing and Works, Government of Pakistan and thus while acting as an official agency of Federal Government it was indirectly discharging the function in connection with affairs of the Federation and by implication would be a part of Ministry of Housing and Works Government of Pakistan‑‑‑In case of any breach, an aggrieved person can bring a suitable action against the Federal Government Housing Foundation by invoking the jurisdiction of an appropriate forum.

Gulshan Hussain and others v. The Collector, Islamabad Capital Territory and the Federal Government Employees Housing Foundation, Government of Pakistan through Secretary, Housing and Works 2000 YLR 1711: Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170 and Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194 ref.

‑‑‑‑S.4‑‑‑Acquisition of private land‑‑‑Validity‑‑‑Acquisition of private land for a purpose other than public purpose is not legal and such acquisition for personal benefit of a particular class of employees would not be in the public interest.

Gulshan Hussain and others v: The Collector, Islamabad Capital Territory and the Federal Government Employees Housing Foundation, Government of Pakistan through Secretary, Housing and Works 2000 YLR 1711 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Companies Ordinance (XLVII of 1984), S.13‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑Judicial review‑‑‑Acts done by Companies registered under the provisions of Companies Ordinance, 1984‑‑‑Federal Government Employees Housing Foundation‑‑‑Status‑‑‑Ordinarily a company registered under Companies Ordinance. 1984, if is not controlled by the Government and its status and character is not that of an agency of Government, would not be amenable to the Constitutional jurisdiction of High Court‑‑‑Company like Federal Government Employees Housing Foundation which is functioning under the direct control of the Federal Government and its affairs are being run by the functionaries of the Government cannot claim immunity from judicial scrutiny of a decision made by its functionaries, if the same is found against its declared policy or infringes the rights of its beneficiaries‑‑‑Housing Foundation by virtue of its character and functions and distinguishable features having assumed the role of an official agency of Federal Government, does not stand at par to that of the private companies registered under the Companies Ordinance, 1984‑‑Federal Government Employees Housing Foundation for all practical purposes is deemed to be an official body of Ministry of Housing and Works, Government of Pakistan, therefore, its acts and deeds are subject to the judicial review of superior Courts‑‑‑In the matter arising out of acquisition of land by the Foundation through Land Acquisition Collector, preparation of schemes, allotment of residential and commercial plots or ancillary and incidental matter, an aggrieved person can avail the remedy of civil suit or invoke the Constitutional jurisdiction of High Court‑‑‑Person being aggrieved of an action of the Housing Foundation either in relation to his right and entitlement of allotment of a plot or in any other matter of public importance, can maintain a Constitutional petition‑‑‑Immunity can be claimed by an official body for violation of, Rules framed by such body on the plea that non‑statutory rules cannot be assailed but the departmental instructions/non‑statutory rules framed by such official bodies become enforceable in law without any prohibition in case of breach of non‑statutory rules/instructions being continuously and consistently acted upon by such' an official agency‑‑‑Constitutional petition is maintainable in circumstances.

Maqsood Ahmed Toor v. Federation of Pakistan through Secretary, Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCMR 928; Gulshan Hussain and others v. The Collector, Islamabad Capital Territory and the Federal Government Employees Housing Foundation, Government of Pakistan through Secretary, Housing and Works 2000 YLR 1711; Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170 and Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194 ref.

(e) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Locus poenitentiae, principle of‑‑Cancellation of allotment of plot‑‑‑Federal Government Employees Housing Foundation while acting as an official Organization, has framed a policy to regulate its business as per its declaration made in the Memorandum and Articles of Association‑‑‑Despite the fact that the policy framed by the Foundation has no statutory force, still the Organization is bound by its policy which is being implemented and followed as departmental instructions of the controlling ministry and mandatory rules‑‑‑Violation of the policy is challengeable in High Court in its Constitutional jurisdiction‑‑Notwithstanding any procedural defect in the allotment of plots to the different categories of the employees of Federal Government, the Housing Foundation after making such allotments has no power to rescind the same in the light of principle of locus poenitentiae‑‑‑Once an allotment is made and taken effect, the same would have legal protection and if in consequence to a subsequent act of Housing Foundation the right of an allottee is affected. such allottee can invoke the Constitutional jurisdiction of High Court to protect his right in the allotment‑‑‑Entitlement of a person for allotment of plot in the Scheme of Housing Foundation or a right of allotment if already created is undone, on any ground, the aggrieved person can maintain a Constitutional petition in the High Court as the remedy of civil suit in such cases is not efficacious.

(f) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Allotment of plot to a civil servant‑‑‑Appeal to Service Tribunal‑‑Maintainability‑‑‑Matter relating to terms and conditions of service‑‑‑Federal Government Employees Housing Foundation floated a housing scheme for Federal Government employees‑‑‑Respondent, being employee of Pakistan Broadcasting Corporation, applied for allotment of a plot in the category of civil servants‑‑‑Housing Foundation declined allotment of plot to the respondent in category of civil servants and considered his application subject to his entitlement from the quota reserved for employees of autonomous bodies‑‑‑Respondent assailed the act of the Housing Foundation before Service Tribunal in exercise of jurisdiction under S.4 of Service Tribunals Act, 1973‑‑‑Service Tribunal allowed the appeal and directed the Housing Foundation to consider the application of the respondent in the category of civil servants‑‑‑Plea raised by the Housing Foundation was that allotment or refusal of plot was not a matter relating to terms and conditions of service, hence jurisdiction of Service Tribunal could not be invoked‑‑Validity‑‑‑Allotment of plot in housing scheme established by Federal Government Employees Housing Foundation could not be claimed as terms and conditions of service and not such right could be enforced through the remedy of appeal under S.4 of Federal Service Tribunals Act, 1973‑‑‑Service Tribunal had no jurisdiction to entertain and adjudicate. the matter which had no nexus with the terms and conditions of service of a civil servant‑‑Housing Foundation was established under the directive of Prima Minister/Federal Government as a welfare organization to establish residential colonies for its employees in Islamabad on ownership basis‑‑Employees of Federal Government could seek allotment of a residential plot in the scheme of the Housing Foundation as per their entitlement as of right but such right could not be claimed as "terms and conditions" of service as there was no rule under which a civil servant could claim allotment of a house or a residential plot on ownership basis as part of his terms and conditions of service in an official or semi‑official scheme‑‑‑Appeal before Service Tribunal would lie under S.4 of Service Tribunals Act, .1973, against an order passed by a Competent Authority in relation to terms and conditions of service of a person and not otherwise and thus neither the allotment of residential plot in the housing scheme of Federal Government Employees Housing Foundation could be claimed as terms and conditions of service nor such claim could be enforced through the remedy of appeal before the Service Tribunal‑‑‑Appeal filed by respondent before the Service Tribunal in the present case was not maintainable and the Service Tribunal had no jurisdiction to adjudicate upon the matter‑‑‑Supreme Court set aside the judgment passed by the Service Tribunal.

Abdul Rahim v. Pakistan Broadcasting Corporation 1992 SCMR 1213; Maqsood Ahmed Toor v. Federation of Pakistan through Secretary, Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCMR 928 and Gulshan Hussain and others v. The Collector, Islamabad Capital Territory and the Federal Government Employees Housing Foundation, Government of Pakistan through Secretary, Housing and Works 2000 YLR 1711 ref.

Syed Asghar Hussain Sabzwari, Advocate Supreme Court instructed by Ejaz Muhammad Khan, Advocate‑on‑Record for Appellants.

Nemo for Respondent.

Date of hearing: 11th April, 2002.

PLD 2002 SUPREME COURT 1100 #

P L D 2002 Supreme Court 1100

Present Javed Iqbal, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

UNITED BANK LIMITED‑‑‑Appellant

Versus

PAKISTAN INDUSTRIAL .CREDIT AND INVESTMENT CORPORATION LTD. and

another‑‑‑Respondents

Civil Appeal No. 517 of 1993, decided on 21st March, 2002

(On appeal from the order dated 15‑4‑1993, of the High Court of Sindh, Karachi, passed in High Court Appeal No.5 of 1993).

(a) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 305, 309, 333 & 10(2)‑‑‑Contract Act (IX of 1872), S.126‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Winding‑up of Company‑‑Direction by High Court for encashment of investment guarantee‑‑Validity‑‑‑Leave to appeal was granted by the Supreme Court to consider, whether the official liquidator should have lodged the claim under the Bank Guarantee up to the last extended validity date or he should have encashed the Bank guarantee on the date when the High Court accepted the official liquidator's reference.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 126‑‑‑Companies Ordinance (XLVII of 1984), Ss. 305, 309, 333 & 10(2)‑‑‑Contract of guarantee‑‑‑Financial Institution was creditor while the guarantee was provided by a Bank which was surety‑‑‑Said guarantee had been executed 'for the benefit of the company (creditor) now under liquidation‑‑‑Essence of the guarantee was that the guarantor had agreed to discharge the liability of the debtor if the latter failed in performing his liability which all depended on. the terms of the guarantee and guarantor could not be made liable beyond the terms of his guarantee‑‑‑Whatever the guarantor had undertaken, the same had to be performed‑‑‑Guarantee having' been executed by the Bank, satisfaction of the same could not be avoided on mere technicalities.

Prudential Commercial Bank Limited v. Hydari Ghee Industries Limited and others 1999 MLD 1694 ref.

‑‑‑S. 126‑‑‑Bank guarantee‑‑‑Liability of guarantor‑‑Scope‑‑‑Liability of guarantor depends on the language of the guarantee‑‑‑Terms of the guarantee would demonstrate how far the guarantor .has bound itself to indemnify the creditor‑‑‑Guarantee may be absolute or conditional, dependant on the performance of a condition by either party within the terms of the guarantee.

(d) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 316 & 333‑‑‑Contract Act (IX of 1872), S.126‑‑‑Liquidation of company‑‑‑Bank guarantee, encashment of‑‑‑Jurisdiction‑‑‑Company Judge to order encashment of Bank guarantee given on behalf of the company in liquidation‑‑‑Scope‑‑‑Bank had undertaken to pay a specified amount to the creditor (financial institution) if the borrower failed to raise capital within the stipulated period‑‑‑No condition whatsoever was attached to the performance of the creditor before making demand‑‑‑Guarantee was extended from time to time‑‑‑Time limit in the guarantee was for the borrower to raise the capital within the stipulated period, failure whereof had given unconditional right to the creditor for encashment of Bank guarantee‑‑‑No time limit having been provided for the creditor, as such the direction given by the Company Judge could not be frustrated on that score‑‑‑Contention that separate suit should have been filed for encashment of Bank guarantee and. the Company Judge had no jurisdiction to order encashment of the same in liquidation proceedings was devoid of any force.

Discount Bank of India Ltd., Delhi v. Triloki Nath and others AIR 1953 Punj. 145; Knowles v. Scott (1891) 1 Ch. 717; Palmer's Company Law, p.414; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 ref.

(e) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 316 &. 333‑‑‑Contract Act (IX of 1872), S.126‑ ‑Liquidation of company‑‑‑Powers of Company Judge and function of Official Liquidator detailed‑‑‑Bank guarantee which was executed for the benefit of the company under liquidation could not be frustrated by putting up technicalities so as to thwart the efficient performance of the liquidator ‑‑‑Pushing the creditor for encashment of Bank guarantee through a civil suit would simply be generating multiplicity of litigation which was not the mandate of law‑‑‑Mere technicalities unless offering insurmountable hurdle: not to be allowed to defeat ends of justice.

Section 316 of the Companies Ordinance has given the Company Judge overriding powers for disposing of any matter germane to the winding-up proceedings. The principal object of winding‑up of a company is to realize its property and its liabilities are discharged in accordance with law. The official liquidator who is an officer of the Court is appointed by the Company Judge who looks after and supervises the interests of all the parties concerned in a liquidation of a company. Re is a trustee not only for the creditor but for the company under liquidation as well. He has to safeguard the interests of all the parties for the efficient performance of his duties. He is to take possession of movable and immovable properties of the company. Section 333 of the Ordinance has given wide powers to the official liquidator which are exercised by him under the supervision of Company Judge who has been authorised to issue such directions.

The official liquidator has got ample powers to take steps for the efficient winding‑up of the company so as to create a balance among the interest of the parties according to law .and the rules.

In a winding‑up the liquidator acts not merely for creditor but for contributories and for the company also. A liquidator is an agent employed for the purpose of winding‑up of the company. In some respects he is a trustee; but he is not a trustee for each individual creditor: see Knowles v. Scott (1891) 1 Ch. 717 at p.723. His principal duties are to take possession of assets, to make out the requisite lists of contributories and creditors, to have disputed cases adjudicated upon, to realize the assets subject to the control of the Court in certain matters and to apply the proceeds in payment of the company debts and liabilities in due course of administration, and, having done that, to divide the surplus amongst the contributories and to adjust their rights. Any proceedings necessary for the protection of the property are taken by the liquidator `in the name of the company, unless the Court has made a vesting order, in which case he can sue in his official name is, respect of property vested in him by the order. He can 'institute or defend any suit with the sanction of the Court and he can take any other legal proceedings, civil or criminal, also with such sanction.

In the present case the bank guarantee was got executed for the benefit of the company under liquidation by the Bank as such the same could not be frustrated by putting up technicalities so as to thwart the efficient performance of the liquidator. What was permissible for the Courts of general jurisdiction in the interest of justice, fair-play and equity when there was no statutory bar, was also permissible for the Company Judge so as to spare the parties from the ordeal of rushing from one forum to another for the redressal of their grievance. All legal formalities were to safeguard the paramount interest of justice. In the present case pushing the creditor for the encashment of bank guarantee through a civil suit would simply be generating multiplicity of litigation which was not the mandate of law. The guarantor in the present case particularly the Bank could not avoid its liability on all these technicalities.

Mere technicalities, unless offering insurmountable hurdle, should not be allowed to defeat the ends of justice.

Discount Bank of India Ltd., Delhi v. Triloki Nath and others AIR 1953 Punj. 145; Knowles v. Scott. (1891) 1 Ch. 717; Palmer's Company Law, p.414; Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 ref.

(f) Administration of justice‑‑‑

‑‑‑‑ Mere technicalities unless offering insurmountable hurdle should not be allowed to defeat the ends of justice.

Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 ref.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185‑‑‑Appeal to Supreme Court‑‑‑New plea‑‑‑Appellant had not raised the plea of jurisdiction before the High Court and fully participated in the proceedings‑‑‑Such plea could not be raised before the Supreme Court.

Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner (Pakistan), Lahore and others PLD 1964 SC 875 ref.

Abubakr I. Chundrigar, Advocate Supreme Court for Appellant.

Muhammad Munir Peracha, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondent No. 1.

Respondent No. 2: Ex parte.

Dates of hearing: 20th and 21st March, 2002

PLD 2002 SUPREME COURT 1111 #

P L D 2002 Supreme Court 1111

Present: Rana Bhagwandas, Javed Iqbal and Sardar Muhammad Raza, JJ

RAUF B. KADRI‑‑‑Appellant

Versus

STATE BANK OF PAKISTAN and another‑‑‑Respondents

Civil Appeal No. 1213 of 2001, decided on 25th April, 2002.

(On appeal from order of Sindh High Court, Karachi dated 18‑42001 passed in J.M. No. 15 of 2000).

Per Rana Bhagwandas, J.; Sardar Muhammad Raza, J. agreeing; Javed Iqbal, J. contra‑‑‑

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

‑‑‑‑O. I, R.10‑‑‑Scope of O.I, R.10, C.P.C. is. very wide‑‑‑Power to transpose is derived amongst others, from O.I, R.10, C.P.C., which has to be interpreted liberally in 'the interest of complete adjudication of all the questions 'involved in a lis and in order to avoid multiplicity of the proceedings‑‑‑Such power by the Court is invariably exercised generously and technical hurdles are always bypassed for considerations of effectual adjudication and inexpensive access to justice.

Said Alain v. Raja Sohrab Khan 1970 SCMR 639; Central Government of Pakistan v. Suleman Khan PLD 1992 SC 590 and Uzin Export Import Enterprises v. Union Bank of Middle East Ltd. PLD 1994 SC 95 ref.

(b) Companies Ordinance (XLVII of 1984)‑--

‑‑‑‑S. 305‑‑‑Constitution of Pakistan (1973), Art. 185(2)‑‑‑Appeal to Supreme Court‑‑‑Winding‑up of company‑‑‑Law leans in favour of adjudication on merits and in winding‑up cases, utmost endeavour should be made for survival of the Corporate sector rather than to dismantle the same ‑‑‑Winding-up proceedings. against the company in the present case, having been pending for more than two years, Supreme Court found' it just, proper and expedient in the interest of justice to decide the appeal on merits rather than to remand the same to the High Court after such delay‑‑‑Object and spirit of the Companies Ordinance, 1984 is' to dispose of such cases with utmost promptitude and an appeal before Supreme Court is required to be finally decided within a time span of ninety days.

‑‑‑S. 305‑‑‑Constitution of Pakistan (1973), Art. 185(2)‑‑‑Appeal to Supreme Court‑‑‑Winding‑up of a Banking Company‑‑‑Appeal on behalf of ex-Chairman of the company‑‑‑Maintainability‑‑‑Order of winding‑up having been passed against the company, company alone as a juristic person or an aggrieved creditor could appeal for its survival rather than a former Chairman, who had not disclosed/produced his pecuniary or any other legal interest in the company or any resolution passed by the Board of Directors of the company and was lawfully superseded by State Bank of Pakistan and was a convict by a competent Court of law‑‑‑Such person in his personal capacity was not competent to assail the winding‑up order without authorization of the company and after the supersession of the company by the State Bank of Pakistan, his connections with the company were completely severed‑‑Mismanagement and corrupt practices by the said person, in fact, had brought the company to the state of liquidation and his conviction, unless set aside by Supreme Court, would be an ample proof of his disqualification‑‑Appeal by such person against order of liquidation as constituted was thus, liable to dismissal on such score alone.

(d) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑S. 306‑‑‑Civil Procedure Code (V of 1908), O.I, R.10‑‑‑Winding‑up proceedings in case of a Financial Institution‑‑‑Financial Institution had incurred losses over four Billions of Rupees against capital of Rs.0.656 Billion and was unable to pay its debts‑‑‑State Bank of Pakistan became party to the proceedings on its transposition/substitution after withdrawal of the other party and none of its previous members objected to such supersession ‑‑‑Statutory notice under S.306, Companies Ordinance, 1984 were already given by the said party and having failed to respond to the notices, petition for winding‑up was filed against the Financial Institution‑‑State Bank of Pakistan, after transposition/substitution as petitioner was not required to start afresh by issuing notice under S.306, Companies Ordinance, 1984 as non‑service of notice under S.306, Companies Ordinance, 1984 was not fatal to, the petition as a whale as the provision was directory in nature and led to the presumption of inability to pay debt in case demand was not secured or debt not settled.

Sindh Glass Industries Limited v. National Development Finance Corporation PLD 1996 SC 601 and Platinum Insurance Company Limited v. Daewoo Corporation PLD 1999 SC 1 ref.

(e) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 306‑‑‑Inability of a company to pay its debts‑‑Section 306 of the Companies Ordinance, 1984 is a self‑contained provision to judge the viability of the company‑‑‑Use of word "or" between cls. (a), (b) & (c) of S.306(1) brings to the conclusion that said clauses are disjunctive in nature and independent of each other‑‑‑Company thus would be deemed to be unable to pay its debts if any of the courses provided in S.306 is adopted.

(f) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 306‑‑‑Banking Companies Ordinance (LVII of 1962), Ss. 41‑A & 41‑B‑‑‑Civil Procedure Code (V of 1908), O. I, R.10‑‑‑Petition for winding-up proceedings of a Financial Institution‑‑‑Inability of the institution to pay its debts‑‑‑State Bank of Pakistan enjoyed supervisory power under the Banking Companies Ordinance, 1962 over the Financial Institutions and for that reason, in exercise of its power under the said Ordinance; could remove the Directors and other managerial persons according to law‑‑‑State Bank of Pakistan, in the interest of such Financial Institution and the public at large, could also step into the arena to save the creditors‑‑‑Courts of law also has the powers under O. I, R.10, C. P. C. to allow transposition of State Bank of Pakistan in the proceedings against the Financial Institution.

Manager, Jammu and Kashmir State Property v. Khuda Yar PLD 1975 SC 678 and Imtiaz Ali v. Ghulam Ali PLD 1963 SC 382 ref.

(g) Administration of justice‑‑‑

‑‑‑‑ Procedures are meant only to regulate and foster the cause of justice and not to thawart the same.

Manager, Jammu and Kashmir State Property v. Khuda Yar PLD 1975 SC 678 and Imtiaz Ali v. Ghulam Ali PLD 1963 SC 382 ref.

(h) Banking Companies Ordinance (LVII of 1962)‑‑‑

‑‑‑‑Ss. 41‑A & 41‑B‑‑‑Scope and appreciation of Ss. 41‑A & 41‑B, Banking Companies Ordinance, 1962.

While section 41‑A of the Banking Companies Ordinance, 1962 enumerates powers of the State Bank of Pakistan to remove Directors and other managerial persons from the office for reasons to be recorded in 'writing and after giving a reasonable opportunity of hearing to the Chairman or Director or Chief Executive of the company, section 41‑B of the said Ordinance highlights the powers of the State Bank to supersede a Board of Directors of the Banking Company. Strictly speaking the action taken by the State Bank of Pakistan as aforesaid may not tantamount to taking over control and management of the affairs of the Company but it is restricted to supersession of the Board of Directors by their removal and substitution in the discretion of the Bank. BY supersession and substitution of the Board of Directors of a Company, State Bank of Pakistan does not acquire itself any proprietary or controlling powers in the assets or affairs of the Company, which are to be run and administered by the newly‑appointed Board of Directors under the Articles of Association and Bye‑laws of the Company and subject to law.

(i) Protection of Economic Reforms Act (XII of 1992)‑‑‑

‑‑‑‑S. 7‑‑‑Object and scope of S.7, Protection of Economic Reforms Act, 1992.

Spirit and object of section 7 of tile Protection of Economic Reforms Act, 1992, being to create a liberal environment for savings and investments and lawful protection of economic reforms introduced by the Government in order to create confidence in economic policies introduced by Government, it was intended to protect ownership, management and control of any banking, commercial or other company, establishment or enterprise transferred by the Government to any person under any law with the understanding that it shall not be compulsorily acquired or,, taken over by the Government for any reason whatsoever. Real intention and object behind this provision of law seems to be that after disinvestment of an establishment or enterprise by the Government through Privatisation Commission or any other agency, Government shall not reacquire or take over the ownership, management and control of such establishment.

(j) Banking Companies Ordinance (LVII of 1962)‑‑‑

‑‑‑‑Ss. 41‑A & 41‑B‑‑‑Protection of Economic Reforms Act (XII of 1992), Ss.3 & 7‑‑‑Substitution of Board of Directors of a Banking Company by the State Bank of Pakistan would not in any sense of the term, amount to compulsory acquisition or take over of the privatized company by the Government‑‑‑Notwithstanding the overriding effect of the provisions of Protection of Economic Reforms Act, 1992 as spelt out from S.3 thereof, powers of State Bank of Pakistan under the Banking Companies Ordinance, 1962 could neither be abridged nor curtailed or taken away by intendment‑‑Provisions of Protection of Economic Reforms Act, 1992 by themselves were not in conflict with the provisions of Ss. 41‑A & 41‑B of the Banking Companies Ordinance, 1962 and the rule of harmonious interpretation of statutes required that both the statutes would operate in their respective fields without any overlapping.

(k) Judgment‑

‑‑‑‑ Mere wrong citation of a provision of law in the order, would not per se vitiate the judgment.

(l) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 305‑‑‑Order of winding‑up of company by High Court or a petition under S.305, Companies Ordinance, 1984‑‑‑Mere reference to a wrong provision viz. S.50, Banking Companies Ordinance, 1962 in the lawful winding‑up order, by the High Court would pale into insignificance.

Lahore Improvement Trust v. Custodian, Evacuee Property West Pakistan PLD 1971 SC 811 and Baigan v. Abdul Hakeem 1982 SCMR 673 ref.

(m) Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 305‑‑‑Constitution of Pakistan (1973), Art. 185(2)‑‑‑Appeal to Supreme Court‑‑‑Winding‑up of company‑‑‑Company had completely lost its substratum and was neither viable nor commercially solvent to discharge its huge liabilities‑‑‑Nothing was available on record except a bald statement of the counsel in appeal on behalf of an unauthorized person to suggest that winding‑up order suffered from any illegality or factual and legal infirmity‑‑High Court, in circumstances. was perfectly justified in arriving at the conclusion that it was just and equitable to order the winding‑up of the company.

Municipal Corporation of Pakistan v. Sindh Tech. Industries Ltd. 1999 MLD 2609; Sindh Glass Industries Ltd. v. National Development Finance Corporation PLD 1996 SC 601; Platinum Insurance Company Ltd, v. Daewoo Corporation PLD 1999 SC 1 and Hala Spinning Mills Ltd v. International Finance Corporation 2002 SCMR 450 ref.

Per Javed Iqbal, J. Contra [Minority view], [paras.1‑32]

Industrial Development Bank of Pakistan v. Sarela Cement Limited Company 1993 CLC 1540; AIR 1953 Lah.633; Platinum Insurance Company Limited v. Daewoo Corporation PLD 1999 SC 1; PLD 1991 SC 1; 1989 CLC 1167; PLD 1998 Kar.71: 1998 CLC 543; AIR 1963 AP 243, AIR 1941 Pat. 603; PLD 1973 Lah. 60; PLD 1993 Kar. 322: AIR‑1920 Cal. 722; PLD 1990 Kar. 191; 1991 MLD 124 and 1990 CLC 1030 ref.

Rizwan Ahmed Siddiqui, Advocate Supreme Court for Appellant.

G.H. Malik, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondent No. 1.

Nemo for Respondent No.2.

Date of hearing: 25th April, 2002.

Supreme Court Azad Kashmir

PLD 2002 SUPREME COURT AZAD KASHMIR 1 #

P L D 2002 Supreme Court (AJ&K) 1

Present: Sardar Said Muhammad Khan, C.J.

and Muhammad Yunus Surakhvi, J

Raja IQBAL RASHID MINHAS, ADVOCATE‑‑‑Appellant

Versus

AZAD JAMMU AND KASHMIR COUNCIL

through AJ&K Council, Islamabad and

3 others‑‑‑Respondents/Pro Forma Respondents

Civil Appeal No.73 of 2001, decided on 12th December, 2001

(On appeal from the judgment of the High Court dated 28‑2‑2001 in Writ Petition No.24 of 2001).

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

‑‑‑‑Ss. 42, 44 & 50‑‑‑Chief Election Commissioner (Terms and Conditions) Act, 1992, S.3 [as substituted by Chief Election Commissioner (Terms and Conditions) Act, 2000] ‑‑‑Civil Procedure Code (V of 1908), O.XXIII, R.1‑‑‑Writ petition filed by respondent challenging withdrawal of notification of his appointment as Chief Election Commissioner and appointment of another respondent as such, was dismissed by High Court on merits despite the fact that he had tiled an application for withdrawal of the same‑‑‑Appellant as a Member of Bar Council and office‑bearer of a political party contended that though he was not a party before High Court, but he was legally entitled to file appeal in public interest against such judgment of High Court, Supreme Court granted leave to appeal to consider, as to whether appellant had locus standi to come up with the petition for leave to appeal, when he himself was neither an aggrieved person nor a party in writ petition nor a candidate for being appointed as Chief Election Commissioner, and that whether High Court had incorrectly interpreted various provisions of Interim Constitution Act relating to appointment of Chief Election Commissioner, especially when respondent had filed an application for withdrawal of his writ petition.

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

‑‑‑‑Ss. 42 & 44‑‑‑Writ petition‑‑‑Locus standi to file‑‑‑Aggrieved person‑‑Writ petition could be entertained only on the application of an aggrieved person and not by a pro bono publico litigant‑‑‑Person, whose interests had been adversely affected by legislation or order under challenge, could competently tile writ petition and then file an appeal before Supreme Court against judgment of High Court as required by law.

Malik Khanan v. Malik Baz Muhammad Khan and others PLD 1983 Quetta 30; Abdul Razzaq v. Muhammad Qasim and another 1995 CLC 1123; Muhammad Azeem Qureshi v. Hakim Syed Akhter Irshad and others 1990 CLC 122; Javed Iqbal Khawaja and others v. Azad Government and others PLD 1994 Azad J&K 26; Muhammad Boota and others v. The Commissioner Sargodha Division and others PLD 1973 Lah. 580; H.M. Saya & Company, Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65; Azad Government and 3 others v. Genuine Rights Commission, AJ&K and 7 other1999 MLD 268; Muhammad Islam v. Abdul Rashid and others 1993 SCR 37; S.P. Gupta and others v. The President of India and others AIR 1982 SC (Ind.) 149; Mir Abdul Baqi Baloch v. The Republic of Pakistan and another PLD 1975 Kar. 639 and Kh. Ghulam Muhammad v. Azad Government and another 2001 PLC (C.S.) 321 ref.

‑‑‑‑S. 44‑‑‑Writ of mandamus‑‑‑Writ of certiorari‑‑‑Writ of habeas corpus‑Writ of quo warranto‑‑‑Scope‑‑‑Aggrieved person‑‑‑Writ of habeas corpus and writ of quo warranto could be invoked by any person but other writs could be prayed for only by an aggrieved person‑‑‑Aggrieved person in writ of prohibition was one, whose rights were threatened: in writ, of mandamus whose rights were being denied; and in writ of certiorari whose rights had been affected by a decision.

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

‑‑‑‑‑‑S. 44‑‑‑Writ petition‑‑‑Aggrieved person‑‑Word 'right' in context of writ petition must be used in strict juristic sense‑‑ ‑Aggrieved person must have a personal interest in the performance of a legal duty, which if not performed would result in the loss of some personal advantage‑‑‑Party who would stand to lose or gain an advantage by observance or non‑observance of law was an aggrieved person‑‑‑Aggrieved person must be a person, who had suffered a legal grievance or a person against whom a decision had been pronounced depriving him wrongly of something or wrongfully refusing him something or wrongfully affecting his title to something.

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

‑‑‑‑Ss. 42, 44 & 50‑‑‑Chief Election Commissioner (Terms and Conditions) Act, 1992, S.3 [substituted by Chief Election Commissioner (Terms and Conditions) Act, 2000]‑‑‑Writ petition‑‑‑High Court dismissed petition tiled by respondent challenging withdrawal of notification of his appointment as Chief Election Commissioner and appointment of another respondent as such‑‑‑Appellant as a Member of Bar Council and office‑bearer of a political party filed appeal before Supreme Court against such judgment, though he was not a party before High Court‑‑‑Competency‑‑‑Appellant was neither a party before High Court nor a candidate to be appointed as Chief Election Commissioner nor his personal interest, if any, had been adversely affected‑‑‑Appellant, thus, had no locus standi or cause of action to tile appeal against impugned judgment of High Court‑‑‑Supreme Court dismissed the appeal in circumstances.

M. Tabassum Aftab Alvi, Advocate for Appellant.

Umar Mehmood Kasuri, Advocate for Respondent No. 1.

Kh. Attaullah Chak, Advocate for Respondent No.2.

Date of hearing: 5th December, 2001.

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P L D 2002 Supreme Court (AJ&K) 12

Present: Muhammad Yunus Surakhvi

and khawaja Muhammad Saeed, JJ

MUJAHID HUSSAIN NAQVI‑‑‑Petitioner

Versus

Justice (Rid.) BASHARAT AHMAD SHAIKH

and 8 others‑‑‑Respondents

Civil Petition for Leave to Appeal No. 199 and Civil Miscellaneous No.] 53 of 2001, decided on 24th December, 2001.

(Oil appeal from the order of the High Court dated 7‑12‑2001 in Writ Petition No.622 of 2001.

(a) Azad Jammu and Kashmir High Court Procedure Rules. 1984‑‑‑--

‑‑‑‑Rr. 132, 133 & 134 (1)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Supreme Court granted leave to appeal to consider, whether High Court was competent under law to impose a ban upon petitioner for issuing the contents of writ petition to the Press or publication of the same without ordering the trial of case to be held in camera and without reaching the conclusion that the contents of the writ petition filed by petitioner were against the security of country, friendly relations with Pakistan, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence; and whether High Court was justified in refusing to supply the copy of writ petition as well as copy of interim order passed demanded by the petitioner on payment of costs.

(b) Azad Jammu and Kashmir High Court Procedure Rules, 1984‑‑--

‑‑‑‑Rr. 132, 133 & l34(1)‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974); Ss. 42 & 4‑1‑‑‑Appcai before Supreme Court‑‑‑Interim relict‑‑‑Attested copies of judicial record, supply of‑‑‑High Court through interim order imposed ban on issuing or reporting in Press the contents of Constitutional petition till its placing before Full Bench and, therefore, refused to supply to petitioner attested copies of such interim order and Constitutional petition‑‑‑Validity‑‑‑Petitioner tell in the category of persons legally entitled to obtain requisite copies of judicial record‑‑‑Even a stranger to proceedings might, for sufficient reason shown to the satisfaction of the Registrar obtain copies of judicial record before passing of decree, and also obtain, oil payment of prescribed tees. a copy of any judgment, decree or order at any time after it had been passed or made‑‑‑Operation of impugned orders was suspended till pendency of appeal, before Supreme Court.

Allah Ditta and others v. Sher Ahmed Khan and others 1993 SCR 325 and Government of Pakistan v. Tariq Hussain Farooqi and 3 others PLD 1984 SC (AJ&K) 47 ref.

Petitioner in person.

Date of hearing: 21st December, 2001.