PLD 2003 Judgments

P L D 2003 Azad J&K 1

Before Sardar Muhammad Nawaz Khan, J

KHURSHID IQBAL‑‑‑Appellant

Versus

ALLIED BANK OF PAKISTAN through Zonal Manager, Allied Bank of Pakistan, Mirpur and 2 others‑‑‑Respondents

Civil Appeal No.48 of 2000, decided on 24th January. 2003.

(a) Tort‑‑

‑‑‑‑ Malicious prosecution‑‑‑Suit for damages‑‑‑Burden of proof‑‑‑Plaintiff was under legal obligation to prove that prosecution, which ended in his favour was not prosecution, but was persecution; no reasonable or probable cause or justification was available for his prosecution; and that he was prosecuted out of enmity ill‑will, hatred and malice without any reasonable cause or justification on the part of defendant.

Naber Shah's case PLD 1964 Dacca 111; Nayed ali Dafadar's case PLD 1969 Dacca 985; Abdul Wahab Khan's case PLD 1970 Kar. 757; qurban Ali's case PLD 1963 Kar. 155; Muhammad Yousaf Shah's case 1993 SCMR 1185; 1996 MLD 2017; Fazal Rahime's case 1999 SCMR 700; Sher Muhammad's case 1995 CLC 1134; Khawaja Muhammad Naseem's case 1996 CLC 1460 and Muhammad Latif's case PLD 2000 SC(AJ&K) 31 ref.

(b) Tort‑‑

‑‑‑‑Malicious prosecution‑‑‑Suit for damages‑‑‑Proof‑‑‑Mere dismissal of criminal case under S.249‑A, Cr.P.C. by itself would not be sufficient under law to claim damages from defendant.

M. Tabassum Aftab Alvi for Appellant.

Raja Muhammad Arif Rathore for Respondents.

P L D 2003 Azad J&K 9

Before Sardar Muhammad Nawaz Khan, J

Messrs ALMDAR ENGINEERING (PVT.) LTD. TEMPLE ROAD, LAHORE, SUB-OFFICE AT UPPER CHATTER, MUZAFFARABAD---Petitioner

Versus

MANAGING DIRECTOR, AZAD JAMMU AND KASHMIR HYDRO-ELECTRIC BOARD, MUZAFFARABAD and 4 others---Respondents

Writ Petition No.630 of 2001, decided on 7th March, 2003.

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

----Ss. 43 & 44---Writ of mandamus, issuance of---Petitioner had sought direction of writ of mandamus against respondents to issue necessary 'taking over' certificate and release of guarantees executed by petitioner alongwith return of retention money---Contract was executed between petitioner and respondent Hydro-Electric Board whereby petitioner was to complete construction work of project in accordance with the period specified in the contract and-the specification under the supervision of NESPAK---Petitioner had executed performance guarantee which could only be released upon successful completion of work as per contract ---Respondent Hydro Electric Board in its meeting had decided that after obtaining opinion from NESPAK, taking over certificate in respect of project be issued to petitioner/contractor after obtaining necessary additional guarantee for the pending works to resolve issue amicably---One of the clauses of contract provided that it was 'NESPAK' which was to issue taking over certificate and not the respondent Hydro-Electric Board---Directive given in meeting of respondent Hydro­ Electric Board to issue taking over certificate being qualified with opinion of 'NESPAK', unless opinion favourable to petitioner from 'NESPAK' was obtained by the petitioner, respondent Board could not issue taking over certificate-- -Neither it was resolved in meeting of respondent Hydro-Electric Board that petitioner/contractor had completed remaining work of project nor any certificate had been issued by ' NESPAK' in that connection---In absence of any material suggesting completion of remaining work by petitioner or at least availability of additional guarantee to complete balance work, writ of mandamus could not be issued against respondents---Project was of national importance and any remaining work, as pointed out by NESPAK, could prove critical to the project and, it could entail ultimate failure.

Messrs Airport Support Services v. Airport Manager, Quaid-e­-Azam International Airport, Karachi and others 1998 SCMR 2268; Jawad Hussain Jafri v. Azad Government and others 1999 MLD 33 and Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque 1998 PLC (C.S.) 153 ref.

(b) Question of fact-

---- Controversial question of fact though could be resolved through an affidavit, but it was only when the fact was specifically pleaded supported by an affidavit and same went unrebutted through counter affidavit.

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

----S. 44---Writ petition, competency of--Controversial questions of fact could not be resolved through writ petition and in absence of necessary party no writ petition was competent.

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

----S. 44---Writ jurisdiction, exercise of---When .an alternate and adequate remedy was available to the petitioner, extraordinary jurisdiction of High Court could not be exercised.

Raja Muhammad Hanif Khan for Petitioner.

Syed Nazir Hussain Shah for Respondents Nos.1 to 5.

P L D 2003 Azad J&K 16

Before Ghulam Mustafa Mughal, J

MUNIR HUSSAIN and others‑‑‑Appellants

Versus

MUHAMMAD ASLAM and others‑‑‑Respondents

Civil Appeals Nos.6 and 9 of 1997, decided on 7th April, 2003, (a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 188, 214 & 215‑‑‑Object of appointing agents or attorneys is that a specified person is authorized by the executant to act for and in the name of the person executing it‑‑‑Power given to joint agents‑‑‑Effect‑‑‑Where a power is delegated by a principal jointly to more than one agent for performance of the acts on his behalf, then single agent cannot do any act without joining the other‑‑‑Where a power is given to joint agents, presumption is that such power has been granted on the consideration of the personal nature and their act can bind the principal only if the agents act jointly‑‑‑When the attorneys, so appointed intend .to deviate from the authority given in a power of attorney then they have to comply with Ss. 214 & 215 of the Contract Act, 1872‑‑‑Where one of the joint agents obtained the agreement in his favour from the other joint agent, he had to prove through cogent evidence that such act was consented to by the principal.

Dr. A. Wahab's case 1986 MLD 2049 ref.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 215‑‑‑Where an agent executes an agreement in his own favour or in favour of any of his associates without consent of the principal then the principal has a right to repudiate the transaction.

(c) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 182‑‑‑Agency‑‑‑Elementary principle of "agency", is that the relationship between the agent and the principal is very delicate and of a high trust‑‑‑Agent, in such relationship, occupies the position of dominant influence, he is not permitted to make a transfer of the property of the principal in his own favour or in favour of his associates without the consent of his principal.

PLD 1985 SC 341 and 1987 SCMR 1009 ref.

(d) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 188‑‑‑Extent of agent's authority‑‑‑Power of attorney holder acquires double capacity or double personality; one being as his person and the other as attorney‑‑‑Both the said positions cannot be intermingled by executing any document in his own favour‑‑‑Double capacity and double personality discussed and differentiated.

A power of attorney holder acquires double capacity or double personality. One is as his person and the other as attorney, therefore, both the aforesaid positions cannot be intermingled by executing any document in his own favour.

The mere fact that a man has two or more capacities does not give him the power to enter into a legal transaction with himself. Double capacity does not connote double personality. For instance, at common law a man could not sue himself, or contract with himself, or convey property to himself; and it made no difference that he was acting on each side in a different capacity. So rigorous was the rule that, if the same party appeared on both sides of a contract, even though accompanied by different parties in each case, the whole contract was void. In many cases the rule worked hardship, and its consequences had to be mitigated.

In the present case when there were two joint attorneys one was not competent to obtain contract in his own favour being an attorney of the principal nor the other one was individually competent to alienate the property.

Jurisprudence by Salmond, p.64 quoted.

PLD 1980 SC (AJ&K) 60 and 1995 CLC 1541 ref.

(e) Power‑of‑attorney‑‑‑

‑‑‑‑"General" power of attorney‑‑‑Rule of construction‑‑‑Power of attorney be construed strictly and be interpreted to give only such authority as it confers expressly or by necessary implications‑‑‑Principles.

A power of attorney should be construed strictly and should be interpreted to give only such authority as it confers expressly or by necessary implication.

It is wrong to assume that every "general" Power‑of‑Attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the Power‑of‑Attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deducible from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation.

PLD 1980 SC (AJ&K) 60 fol.

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

‑‑‑‑S. 2(g)‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Agreement to sell‑‑‑Trial Court, in the present case, on the 6ne hand declared that the agreement to sell was without lawful authority and on the other hand forfeited the amount paid by the vendee in pursuance of the agreement to sell‑‑‑Such finding of the Court being contrary to law and contradictory could not be sustained‑‑­Vendee would be entitled to receive amount which he had already paid.

Abdul Majeed Mallick and Malik Muhammad Yousuf Khan for Appellants.

Ch. Muhammad Yousuf Khan for Respondents.

P L D 2003 Azad J&K 25

Before Muhammad Riaz Akhtar Chaudhry, J

KHURSHID AHMED and 7 others‑‑‑Appellants

Versus

ZEENAT BEGUM and another‑‑‑Respondents

Civil Appeal No.55 of 2002, decided on 18th April, 2003.

(a) Islamic Law---

‑‑‑‑Gift‑‑‑Essential requirements of a valid gift: Declaration of gift by donor, an express or implied acceptance of gift by donee; and seisin, delivery of possession of gifted property by donor to donee.

(b) Islamic Law‑--

‑‑‑‑Gift‑‑‑Intention of donor to declare gift‑‑‑Such intention is to be gathered from language of gift deed or from other attending circumstances.

AIR 1929 PC 149 rel.

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

‑‑‑‑S. 39‑‑‑Suit for cancellation of gift deed filed by donor after thirty‑seven days of its execution‑‑‑Donor (when he was alive) appeared as witness and denied execution of gift deed‑‑‑Trial Court dismissed the suit, but Appellate Court decreed the same‑‑‑Validity‑‑‑No evidence was available on record regarding intention of donor to declare gift‑‑‑Gift deed did not show as to why donor in, presence of his wife and son had made gift in favour of the defendants‑‑‑Defendants had neither rendered any service to donor nor had such close relations with donor for which preference could be given to them over his wife and son‑‑‑Defendants had failed to prove that donor had any reason to deprive his wife and son from the land; and that gift was outcome of free‑consent of donor and not of their influence‑‑‑Neither author of gift deed nor any of its marginal witnesses had appeared before Court to prove its execution‑‑‑Gift deed contained general words that possession had been delivered to defendants, when in fact they were already in possession as tenants of donor‑‑‑Gift deed, in such a situation, should have mentioned that defendants already retaining possession as tenants would now retain the same as owners‑‑‑Such fact proved that possession in reality had not been transferred to defendants on basis of gift deed, rather they were retaining possession as tenants of donor‑‑‑Appellate Court had rightly set aside gift deed in circumstances.

AIR 1929 PC 149; PLD 1959 Lah. 932; AIR 1927 PC 143 and PLD 1975 SC 624 ref.

(d) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Proof‑‑‑First and foremost responsibility of donee to prove that donor had any reason to execute gift deed.

(e) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Proof‑‑‑Duty of donee to prove that donor had intention to execute gift deed in his favour and same was not the result of any influence.

AIR 1927 PC 143 rel.

(f) Contract Act (IX of 1872)‑‑‑

‑‑‑S. 16‑‑‑Undue influence, drawing inference of‑‑‑Criteria‑‑‑Such influence may be inferred from benefit gained by a person, who had no right to demand such gain under any law or equity or had no moral justification for such gain, and grantor had no rational motive to grant such benefit to such person.

PLD 1975 SC (Pak.) 624 fol.

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

----O. XIV, R. 1—Qanun-e‑Shahadat (10 of 1984), Art.118‑‑‑Onus of an issue in civil cases does not remain fixed permanently‑‑‑The moment some evidence is placed on record by one party, then onus shifts on other side, who would fail, if remained unable to rebut same.

PLD 1980 Lah. 145 fol.

(h) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Delivery of possession‑‑‑Proof‑‑‑Mere recital in gift deed that possession has been delivered to donee, was not enough.

1972 SCMR 50 fol.

Muhammad Siddique for Appellants.

Hassan Akhtar for Respondents.

P L D 2003 Azad J&K 34

Before Syed Manzoor H. Gilani, C J

CINDY PARKER, SECOND SECRETARY COUNSELOR SECTION, BRITISH HIGH COMMISSION, DIPLOMATIC ENCLAVE, RAMNA 5, ISLAMABAD‑‑‑Petitioner

Versus

SAEED SALEEM and 5 others‑‑‑Respondents

Application under section 491, Cr.P.C., decided on 2nd May, 2003.

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

‑‑‑‑S. 491‑‑‑Habeas corpus petition‑‑‑Alleged detenue was a British national and petition was filed by British High Commission for production of person of detenue before the Court‑‑‑Petition was supported by affidavit and a letter addressed by alleged detenue to British High Commission, on basis of which production order was issued by Court and in compliance thereof alleged detenue was produced in the Court ‑‑‑Detenue (female) made statement in Court without any threat, force or coercion that she was threatened, beaten and was forced to marry with respondent who was nearest relative of my mother and father while she was not agreeing to the marriage with him‑‑­Lady had clearly stated that she was not happy wish the man (husband) and s was not willing to marry him and said fact was clearly told to the man (husband) by her‑‑‑Lady alleged that she had tried four times to go out from Pakistan and join her family in England, but she was stopped, beaten and threatened to be shot if she attempted to go again or approached the British Embassy and that she wanted to go to England to get rid of the situation as she did not like the man (husband) and her in‑laws‑‑‑Statement of alleged detenue was self‑speaking, perusal of which was clear enough to believe that she had been illegally and improperly detained on the pretext of marriage with the respondent which according to statement of detenue was forced and she was coerced into marriage against her free will and wish ‑‑‑Detenue, in circumstances was set at liberty and she was allowed to go to England to join her family there.

(b) Islamic Law‑‑‑

‑‑‑‑Marriage‑‑‑Marriage of a girl by itself would not make her live or reside with her husband, if it was a forced marriage and she was compelled to live with him‑‑‑Marriage was a civil contract between the spouse solemnized according to social and religious rites of the parties with their free and independent consent‑‑‑Union had to remain free of coercion and duress, not only at time of marriage but throughout life which was both Islamic and common law/principle‑‑‑If a woman was forced to a marriage or did not feel convenient to live with spouse at the place where husband wanted, but she felt insecure and was threatened to live, it would amount to illegal custody and detention irrespective of validity or otherwise of the marriage.

Raja Shafqat Khan Abbasi with Albert David, representative of the British High Commission, Islamabad; Saeed Saleem, Ayoub and S.H.O. Police Station Kotli in person.

Date of decision: 2nd May, 2003.

P L D 2003 Karachi 1

Before Zahid Kurban Alvi, Shabbir Ahmed and Ghulam Rabbani, JJ

M. SHAFI MUHAMMADI and others‑‑‑Petitioners

Versus

ISLAMIC REPUBLIC OF PAKISTAN and another‑‑‑Respondents

Constitutional Petitions Nos. D‑412 of 1998 and D‑1069 of 1999, decided on 26th August, 2002.

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

‑‑‑‑Arts. 193 & 203‑A‑‑‑Appointment of non‑Muslim as Judge of High Court‑‑‑Validity‑‑‑No bar on a person to be appointed as Judge of High Court, if he fulfils qualifications mentioned in Art. 193 of the Constitution‑‑­No specific bar mentioned in Art. 193 of the Constitution preventing a non-­Muslim from becoming a Judge of High Court‑‑‑Non‑Muslim cannot be a Judge of Federal Shariat Court as Art.203‑A of the Constitution specifically mentions the Muslim Judges‑‑‑Where Legislature wanted or framers of Constitution desired that a particular office should be held by a Muslim, they have clearly said so‑‑‑Where such was not the intention, then there is no mention that the incumbent had to be a Muslim‑‑‑While deciding a dispute requiring interpretation of Shariah, necessary for a Qazi to be not only well­-versed in the knowledge of Islam, but he should also have fu11 faith in the religion‑‑‑Question of a Muslim or non‑Muslim Judge would be relevant in cases requiring interpretation of Shariah or laws governing Muslims‑‑­Federal Shariat Court has been constituted under Constitution for such type of cases‑‑‑Legislature in its wisdom has clearly separated the type of Judges, who would be sitting as Judge of High Court and Supreme Court and those, who would be sitting as Judge of Shariat Court‑‑‑Constitution has emphasised the word "Muslim Judge" for Shariat Court, but has retained the word "Judge" for High Court and Supreme Court.

Zaheeruddin v. State 1993 SCMR 1718; Al‑Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Hakim Khan's case PLD 1992 SC 595; Haider Iqbal Wahnimal v. Islamic Republic of Pakistan Constitutional Petition No. D‑2110 of 1997; PLD 1996 SC 423; Allah Dad v. Mukhtiar and others 1992 SCMR 1273; Munir Ahmad v. Additional District Judge, Kasur PLD 2001 Lah. 149; Haji Rana Muhammad Shabbir Ahmad Khan v. Federation of Pakistan and others PLD 2001 SC 18; Sardar Sultan Ahmad Khan v. Government of Punjab 2001 MLD 1013; Encyclopaedia‑II and Encyclopaedia‑IV on Fiqh Hazrat Umar (r.a.) and Fiqh Hazrat Ali (r.a.) written by Dr. Muhammad Rawas Qilaji, Professor, University of Natural Resources and Petroleum, Zahran University, Saudi Arab, issued by Idara‑e­-Maarif Islami, Mansoora, Lahore, Jama Tirmizi Sharif, Vol. No. 1, written by Maulana Badiuzzaman (r.a); Badaul Senai authored by Allama Abu Bakar Alauddin Alkasani (r.a) and Fatawa‑e‑Alamgiri, written by Allama Maulana Syed Amir Ali (late) (r.a) ref.

(b) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑--S. 136‑‑‑Constitution of Pakistan (1973), Arts. 193 & 199‑‑‑Constitutional petition‑‑‑Appeals before High Court, dismissal of‑‑‑Petitioners did not challenge such order before Supreme Court, but filed Constitutional petition raising objection as to constitution of Bench of High Court on the ground chat one of its Judge being non‑Muslim was not qualified to be a Judge of High Court‑‑‑Validity‑‑‑Petitioners, if wanted, could have objected to constitution of Bench before proceeding with appeals, but not after their appeals were dismissed.

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

‑‑‑‑Arts. 199 & 2A‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑­Objectives Resolution‑‑‑High Court has no jurisdiction to test any law or statute or provision of law on the yardstick of Objectives Resolution.

Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404 and Abdul Mujeeb Pirzada v. Federation of Islamic Republic of Pakistan and 87 others PLD 1990 Kar. 9 fol.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court has no authority or power to pass a restraining order against a Judge of Supreme Court.

Petitioner No. 1 in person (in C. P. No. D‑412 of 1998).

Aminuddin Ansari and Ghulam Qadir Jatoi for Petitioner (in C.P. No. D‑1069 of 1999).

Syed Tariq Ali, Standing Counsel for Respondents.

Date of hearing: 10th December, 2001.

P L D 2003 Karachi 16

Before Shabbir Ahmed, J

MUHAMMAD YOUSUF‑‑‑Plaintiff

Versus

Messrs UROOJ (PRIVATE) LTD. through Managing Director and

another‑‑‑Defendants

Suit No.1723 of 2001 and Civil Miscellaneous Application No.9440 of 2002, decided on 10th May, 2002.

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

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Temporary injunction‑‑‑Burden on plaintiff seeking temporary injunction not as onerous as the burden would be for succeeding in obtaining decree in suit‑‑‑Grant and refusal of temporary injunction‑‑‑Principles for guidance of Court stated.

No doubt, the burden on plaintiff seeking an injunction by an interlocutory application is not as onerous as the burden would be for succeeding in obtaining a decree for specific performance. All that plaintiff needs to establish is that there is a prima facie existence of a right and a threatened infringement, and once he succeeds in showing this, he can obtain an injunction. In pursuit of such finding, Court has not to enter into minute and detailed discussion in regard to merits, although a limited examination of legal aspects in the case would be permissible. On the other hand, Court will only look to the definite in resolving the points that arise in the case and if it is of the view that a substantial or serious question of law or fact arises the requirement of having a prima facie case would be satisfied. This may be termed even as the plaintiff having an arguable case as distinct from plaintiff having no right at all or the plaint making fanciful or frivolous claims. In such an inquiry, Court will also keep in its mind, the substance of the stake involved, for example, the value of property and the loss that may be occasioned to one or other party by refusal or grant of an injunction.

Muhammad Mateen v. Mrs. Dino Mankji Chinoy PLD 1983 Kar. 387; Sui Gas Transmission Company v. Sui Gas Employees' Union 1977 SCMR 220; S.N. Gupta v. Sadanand Gosh PLD 1960 Dacca 153 and Specific Relief Act by Sardar Muhammad Iqbal Khan, 1981 Edn., p.652 ref.

(b) Interpretation of documents--

‑‑‑‑ Documents should not be read contrary to its actual wording.

There is no principle of construction, which permits a document contrary to its actual wording to be read as though it followed a proposed precedent unless between the parties it has been rectified or at least is such as would by the Court be rectified.

Jonmenjoy Coondoo v. George Alder Watson PC 561 fol.

Reckitt v. Barnett Pembroke and Slater Limited (Hotyse of Lords) 176 and Bank of Bengal v. Ramanathan Chetty and others AIR 1915 PC 121 ref.

(c) Power of Attorney‑‑‑

‑‑‑‑Scope‑‑‑Power to negotiate or complete necessary formalities and documents would not confer attorney with power of sale.

Messrs Eagle Star Insurance Co. v. Usman & Sons PLD 1969 Kar. 123; Inayatullah v. Muhammad Aslam Khan 1975 SCMR 314; Fida Muhammad v. Muhammad Khan PLD 1988 SC 341 and Muhammad Yaseen v. Dost Muhammad PLD 2000 SC 71 ref.

(d) Contract Act (IX of 1872)‑‑‑

--‑S. 202‑‑‑Agency coupled with an interest‑‑‑Scope‑‑‑Stipulation in contract as to payment of remuneration/commission to agent in lieu of his services‑‑­Effect‑‑‑Such remuneration/commission would not be an interest in property‑‑‑Interest of agent forming subject‑matter of agency had to be some sort of adverse nature qua principal according to construction and scope of S.202 of the Contract Act‑‑‑Agency could continue by such power coupled with interest, where authority of agent was given for purpose of effectuating security or to secure interest of agent‑‑‑Section 202 of the Contract Act would not be attracted merely because agent had acquired substantial interest in return arising from agency.

Syed Shafique Hussain v. Syed Abdul Qasim PLD 1979 Kar. 22; Hunt v. Ransmanier 8 Wheat 147‑5L Ed. 589; Tod v. Superior Court (1991) 7 ALR 938‑184 Pac. 684 Palani Vannan and others v. Krishnaswami Kanar and others AIR 1946 Mad.9, Law of Agency by Bowstead, 8th Edn., p.456, Art. 138, Kondayya Chetti v. Narasimhula Chetti ILR 20 Mad. 97; M.A. Effendi v. Egypt Air. 1980 SCMR 588; Zubair v. Pakistan State Oil PLD 1987 Kar. 112, Anis v. Anwar Hussain 1992 CLC 2137, Philpine Airline Inc. v. Paramount Aviation (Pvt.) Ltd. PLD 1999 Kar. 227; Messrs Worldwide Trading Co. v. Sanyo Electric Trading Co. PLD 1986 Kar. 234 and Business Computer International (Pvt.) Ltd. v. IBM World Trading Co. 1997 CLC 1903 ref.

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

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Contract Act‑ (IX of 1872), Ss. 182 & 188‑‑‑Temporary injunction‑‑‑Suit for specific performance of agreement to sell against agent and his principal‑‑‑Power of attorney executed by principal in favour of his agent followed by memorandum of understanding provided that attorney would take prior consent of principal regarding sale of shops with minimum price of Rs.9 lacs each shop‑‑‑Plaintiff signed agreement with agent for purchase of 47 shops for consideration of Rs.42,300,000 and paid him Rs.25,000,000 as part payment‑‑‑Principal repudiated such sale agreement being in excess of power given to his agent and contrary to limitations imposed on him‑‑‑Principal gave proposal for grant of temporary injunction subject to deposit of balance sale consideration‑‑‑Plaintiff instead of depositing. same showed his willingness to furnish .security to extent of Rs.3,60,000 per shop with condition that principal be directed to deposit amount of part payment, receipt of which had been denied by principal‑‑‑Validity‑‑‑Plaintiff in spite of admission by agent had failed to make out prima facie case for grant of injunction‑‑‑Court in such cases normally would order deposit of balance sale price in Court in order to see, whether factually plaintiff was ready and willing‑ to perform his part of sale agreement in respect of which specific performance was sought‑‑‑Such part payment had not been paid by plaintiff directly to the principal‑‑‑Balance of convenience did not lie in favour of plaintiff and principal would be put to inconvenience, if they were restrained from exercising right and power in respect of their property‑‑‑Plaintiff had failed to make out a case for injunction‑‑‑High Court dismissed application for temporary injunction in circumstances.

Shama Enterprises (Pvt.) v. Malik Ghulam Sarwar 1989 MLD 21 ref.

Rasheed A. Razvi for Plaintiff.

Kamal Azfar for Defendant No. 1.

M. G. Dastagir for Defendant No. 2.

Dates of hearing: 16th and 18th April, 2002.

P L D 2003 Karachi 34

Before Sarmad Jalal Osmany, J

MUHAMMAD ANWAR AZIM and another‑‑‑Appellants

Versus

R.I.G. EDUCATION BOARD through Directress/General Secretary‑‑‑Respondent

Regular First Appeal No.251 of 1999, decided on 29th July, 2002.

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

‑‑‑‑Ss. 15 & 19(5)‑‑‑Ejectment application by registered Society through its Secretary‑General‑‑‑Maintainability‑‑‑Rent Controller had not framed issue as to maintainability of ejectment application‑‑‑High Court decided to consider such issue as both parties had addressed same during course of arguments‑‑‑Minutes of meeting and letter of authority from Society lying on record showed that Society had authorized its General Secretary to file ejectment proceedings in respect of rented premises‑‑‑Secretary‑General of Society, held, had power and authority to file rent case as well as depose thereto.

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

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑Essentials‑‑­Statement of landlord on oath would be taken to be true, unless displaced by cogent evidence and sufficient proof to the contrary‑‑‑Landlord has to state material facts in ejectment application, which would prima facie show that his personal need was in accordance with law and was made in good faith‑‑­Landlord is not required to state nature of business, which he intends to carry on in rented premises‑‑‑Landlord has complete option to choose any one from several tenements occupied by tenants in order to avail of the ground of personal need and such discretion is not assailable except in rarest case of mala fides.

S.M. Nooruddin v. Saga Printers 1998 SCMR 2119; F.K. Irani & Company v. Begum Feroz 1996 SCMR 1178; Saira Bai v. S. Anisur Rehman 1989 SCMR 1366 and Khawaja Imran Ahmed v. Noor Ahmad 1992 SCMR 1152 fol.

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

‑‑‑‑S. 15(2)(vii)‑‑‑Bona fide personal need of landlord‑‑‑Failure to cross­-examine attorney of landlord‑‑‑Effect‑‑‑Plea of landlord as to requirement of rented premises was for establishing a play ground and additional construction of school building‑‑‑Such statement on oath by attorney of landlord had gone un-rebutted as Rent Controller after giving numerous chances to tenant for cross‑examination had closed his side and had also dismissed his application for recalling such order‑‑‑Landlord had made out a good case for ejectment on basis of bona fide need.

Ismail v. Sher Bano 1988 SCMR 772 ref.

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

‑‑‑‑S. 15(2)(ii)‑‑‑Default in payment of rent‑‑‑Rent was payable by 5th of each month in advance‑‑‑Default in payment of rent for September, October and December, 1994‑‑‑Tenant sent rent by money order on 30‑11‑1994, which after refusal by landlord was received back on 28‑12‑1994, where-after same was deposited in Court‑‑‑Validity‑‑‑Default had occurred for month of October and November, 1994, since rent was due by fifth of each month in advance‑‑‑Even by adding fifteen days grace period as per S.15(2)(ii) of the Ordinance, default had been established for such months, since money order had been sent on 30‑11‑1994.

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

‑‑‑‑S. 15(2)(ii)‑‑‑Statutory tenancy‑‑‑No question of statutory tenancy would arise in case of written agreement of tenancy.

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

‑‑‑‑S. 15(2)(ii)‑‑‑Default in payment of full rent‑‑Monthly rent of Rs.10,000 stood increased by 10% after completion of three years as per rent agreement‑‑‑Enhancement in rent was due on the date when tenant sent rent by money order at the rate of Rs.10,000 per month and after refusal by landlord, same was deposited in Court‑‑‑Short fall of Rs.1,000 per month was both in the tender and deposit in Court‑‑‑Default to such extent, thus, had been established.

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

‑‑‑Ss. 21 & 15(2)(ii)‑‑‑Ejectment of tenant on ground of default in payment of rent‑‑‑Plea of tenant raised before High Court was that upon taking of accounts as per statement filed with appeal, rent for disputed period had been paid in advance‑‑‑Validity‑‑‑Tenant having not raised such plea before Rent Controller could not be allowed to raise at appeal stage.

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

‑‑‑‑S. 15(2)(ii)‑‑‑Default in payment of rent‑‑‑Security deposit could not be adjusted against rent.

Baboo Khan v. Maqbool Ahmad"1984 CLC 2599: Mst. Shabana and another v. Messrs N.P. Cotton Mills (Pvt.) Ltd. 1999 YLR 230; Muntizma Committee, al‑Mustafa Colony (Regd), Karachi and 3 others v. Director, Katchi Abadies, Sindh and 5 others PLD 1992 Kar. 54; Muhammad Siddiq A. Memon v. Messrs Pakistan Milk Food Manufacturers Ltd. 1983 CLC 845; Muhammad Yameen v. Yousuf Lakhani 1986 CLC 1507, Aminuddin Shaikh v. Mst. Mukhtar Begum Shaikh 1986 MLD 1784; Tahir Ali Bhai v. Mrs. Naz Perwar 1997 MLD 2283; Altaf Ahmad Khan v. Dr. Muhammad Naseer Akhtar 1991 CLC 1861; Muhammad Masood Bhatti v. Moinuddin Khan 1998 CLC 703; Malik Muhammad Nawaz v. Haji Muhammad Hayat 1996 MLD 1895 and Muhammad Afzal v. Ch. Muhammad Ashraf and another 1989 MLD 2056 ref.

Zahid Marghoob for Appellant

Munawar Malik for Respondent.

Dates of hearing: 12th, 22nd February and 1st June, 2002.

P L D 2003 Karachi 45

Before Wahid Bux Brohi, J

Haji RIAZ AHMED MIR ‑‑‑Plaintiff

Versus

Brig. (Retd.) Ch. MUHAMMAD SHARIF‑‑‑Defendant

Suit No.206 of 1994, decided on 30th July, 2002.

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

‑‑‑‑Ss. 16 & 20‑‑.Suit filed at K for recovery of sale consideration paid‑ for purchase of property situated at G‑‑‑Validity‑‑‑Agreement to sell was executed at G‑‑‑Sale consideration was partly sent to defendant from K and was partly paid to him at K‑‑‑Oral agreement for refund of sale consideration was made between parties at K‑‑‑Cause of action spread over component facts relating to payments of money made by plaintiff at several times‑‑­Factually part of cause of action had arisen at K, where plaintiff could file present suit and Courts at G alone would not have jurisdiction on subject­-matter‑‑‑Plaintiff for recovery of money had assumed the status of creditor and defendant as debtor‑‑‑ Plaintiff could file suit at K on the basis of principle that creditor must follow the debtor.

Agricides v. Ali Agro 1989 CLC 58; Muhammad Yasin v. Muhammad Abdul Aziz PLD 1993 SC 395; Shahzad Humayun v. Muhammad Akram 1991 MLD 530; Suzuki Motorcycle Pakistan Ltd. v. Tariq Jawed 2000 CLC 1093; Muhammad Yasin v. Ch. Abdul Aziz PLD 1993 SC 395 and 1992 CLC 2047 ref.

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

‑‑‑‑S. 20(c)‑‑‑Cause of action‑‑‑Not safe to refer to pleas taken in written statement by defendant and assign importance to same, while finding out bundle of facts constituting cause of action.

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

‑‑‑‑S. 20(c)‑‑‑Cause of action‑‑‑Even a fraction of cause of action is a part of cause of action.

Abdul Ghafoor v. Natural and Beverages Ltd 2001 YLR 3243 fol.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 117 & 118‑‑‑Burden of proof‑‑‑Word against word ‑‑‑Effect‑‑­Defendant had denied plaintiff's version‑‑‑Burden was on plaintiff to furnish cogent and trustworthy evidence to prove his plea‑‑‑Plaintiff could not produce any other oral or documentary evidence except his word recorded in examination‑in‑chief‑‑‑Plaintiff, held, could not be said to have produced such evidence as to establish his plea beyond doubt."

(e) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 55 & 74‑‑‑Compensation for breach of contract, when time was not essence of contract‑‑‑Forfeiture of sale consideration by vendor‑‑­Entitlement‑‑‑Vendor was not permitted to forfeit sale consideration, unless such condition was specifically recorded in agreement itself‑‑‑When initial terms of agreement for forfeiting earnest money stood relaxed from time to time by consent; then vendor would not be justified in forfeiting amount paid to him as sale consideration.

(f) Pleadings‑‑‑

‑‑‑‑ No evidence could be led or looked into in support of a plea not taken expressly in pleadings.

Binyameen v. Hakim 1996 SCMR 336: Kamran Butt v. Iftikhar Ahmed PLD 1991 Kar. 417; M. C. B. Ltd. v. Ahmad Saeed Kirmani 1991 CLC 140 and Fairland Export Syndicate v. Bengal Oil Mills Limited PLD 1970 Kar. 125 ref.

Raja Sher Muhammad Khan for Plaintiff.

Ch. Muhammad Ashraf Khan for Defendant.

Date of hearing: 30th July, 2002.

P L D 2003 Karachi 54

Before Muhammad Afzal Soomro, J

Mst. NUZHAT SULTANA‑‑‑Petitioner

Versus

Syed FARUKH RAZA and another‑‑‑Respondents

Criminal Miscellaneous Application No. 136 of 2002, decided on 24th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑‑Habeas corpus petition‑‑‑Custody of minors‑‑‑Minors were aged 1‑1/2 years and seven months old and according to law right of "Hizanat" lay with the mother (petitioner) who was entitled to keep her daughter at least up to her attaining the age of puberty and her son up to the age of at least seven years‑‑‑As far as the welfare of the minors was concerned, respondent (father) could approach the Guardians Court having jurisdiction for the final custody of the children‑‑‑Since presently the minors were in the custody of the respondent who was their father, their temporary custody was given to the petitioner, their mother‑‑‑Entitlement to custody of the minors on regular basis of the parties would depend upon the adjudication by the Guardian Judge in accordance with law.

Nisar Muhammad and another, v. Sultan Zari PLD 1997 SC 852; Mst. Sarwar Kalhoro v. Mukhtiar Ali Kalhoro 1999 PCr.LJ 1711; Mst. Saima v. Ismail Khan and others 2001 PCr.LJ 1724; 1991 PCr.LJ 758 and Rubina Ali v. Rafaqat Ali and others 1997 MLD 2066 ref.

Muhammad Iltaf Khan for Applicant.

Sami Ahmad Tirmizi for Respondent No. 1 and Detenus.

Habibur Rasheed for the State.

Date of hearing: 24th May, 2002.

P L D 2003 Karachi 57

Before Mushir Alam, J

FAWAD REHMAN‑‑‑Applicant

Versus

Mrs. SHAKIRA NAWAZ and 4 others‑‑‑Respondents

Civil Miscellaneous Application No. 10110 of 2000 in Suit No. 1623 of 2000, decided on 28th May, 2002.

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

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑‑Interim injunction, grant of‑‑‑Specific performance of unsigned agreement‑‑‑Plaintiff as an estate agent entered into an agreement in respect of the property owned by the defendant for getting the subject property vacated and disposing of the same at bargain price within a period of six months from the date of agreement which period was extendable by mutual, consent‑‑‑Agreement sought to be enforced by the plaintiff was not even signed by the plaintiff as well as defendant‑‑‑Validity‑‑‑Prima facie such document could not be presumed to be concluded or executed document‑‑No document was produced by the plaintiff to prove that there was any proposal of the nature sought to be enforced‑‑‑Held, such unsigned agreement could not be enforced‑‑‑Claim of the plaintiff, if at all, under the circumstances could be for recovery of the amount spent by him to get the premises vacated‑‑­Plaintiff failed to make out a case concluded or even a negotiated agreement of which specific performance could be claimed‑‑‑High Court declined to. restrain defendants from dealing with their own property in any manner‑‑­Plaintiff, in the present case, had neither prima facie good case nor balance of convenience was in his favour nor he would suffer any irreparable loss‑‑‑If the plaintiff succeeded in, establishing amount of expenses incurred by him, he might recover the same subject to proof‑‑‑Application was dismissed in circumstances.

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

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑Interim injunction, grant of‑‑‑Ascertaining the amount of loss‑‑‑Effect‑‑‑Where plaintiff specifically ascertains the loss, such fact is sufficient to disentitle him to claim injunctive relief.

Shafaat Hussain for Applicant.

Amir Malik and Malik Muhammad Ejaz for Respondents.

P L D 2003 Karachi 60

Before Atta‑ur‑Rehman, J

MUHAMMAD YAKOOB and 8 others‑‑‑Applicants

Versus

THE STATE‑‑‑Opponent

Criminal Bail Application No.868 of 2002, decided on 19th August, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302, 301, 324, 337‑A(ii), 337­F(ii), 337‑H(ii), 337‑A(i), 337‑F(i), 353, 147, 148, 149, 427 & 447‑‑­Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Bail, grant of‑‑‑From amongst a total of nine, names of five accused persons had not been disclosed in the F.I.R.‑‑‑No specific allegations had been levelled against the accused persons‑‑‑Accused were participants of a crowd who had entered into the premises of a Company as alleged in the F.I.R.‑‑‑Was not found out as to who was the particular person who had snatched the gun from the deceased police official and fired at him causing his death‑‑Not possible at this stage to attribute fatal fire‑arm injury to any of the nine accused persons‑‑‑As to allegations of violence against police officials, none of the police officials had been medically examined and no report was available on record to that effect‑‑‑No incriminating article or weapon had been recovered from the accused persons ‑‑‑Challan against the accused had been submitted but charge had not been framed so far‑‑‑Case of the accused calling for further inquiry, they were granted bail.

Shafi Muhammad Memon for Applicants.

Habib Rasheed for the State.

P L D 2003 Karachi 62

Before Wahid Bux Brohi, J

MUHAMMAD URS‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1035 of 2002, decided on 2 7th August, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/353/34‑‑‑Second bail application before High Court‑‑‑First bail application of accused had already been dismissed on merits by High Court‑‑‑Preciously High Court after having fully heard the counsel of accused and going through the facts of the case had found sufficient material on record to connect the accused with the offence‑‑‑Plea of ineffective firing had been taken on behalf of accused‑‑­Accused had been captured on the spot and a 22 bore pistol was allegedly recovered from him‑‑‑High Court in its previous order had also taken into consideration the incidence of such crime‑‑‑No exceptional circumstances existed in the case to review the earlier order‑‑‑Bail was declined to accused in circumstances.

Abdul Ghafoor v. State 1996 PCr.LJ 1573 and Gulzar Hussain Shah v. Ghulam Murtaza PLD 1970 SC 335 distinguished.

Abdul Qadir Siddiqui for Applicant.

Fazalur Rehman Awan, State Counsel.

Date of hearing: 27th August, 2002.

P L D 2003 Karachi 65

Before Zia Perwaz, J

Mst. SALMA ARAIN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.341, 342, 343, 347, 348, 350, 371 and 372 of 2002, decided on 1st August, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 13, 14 & 18‑‑‑Bail‑‑‑Both the parties had gathered with specific intention and common object of committing Zina‑‑‑Females involved in the case hailed from different cities of Punjab Province‑‑‑Offence could not be committed due to the intervention of the police‑‑‑Court might decline to admit the accused to bail even in cases not falling under prohibitory clause of S.497(1) Cr.P.C. after a tentative assessment of the material available on record‑‑‑Sufficient material had come on record prima facie involving the accused in the offence charged against them‑‑‑Female accused being residents of different cities of Punjab, possibility of their abscondence could not be ruled out and their release on bail‑could encourage them to repeat the same offence in order to earn their livelihood‑‑‑Bail was refused to accused in circumstances.

Amanat Ali v. The State 1981 PCr.LJ 100; Ghulam Ahmad v. The State 1981 PCr.LJ 173; Farid and others v. The State 1981 PCr.LJ 589; Aurangzeb v. Awal Rehman and another 2002 PCr.LJ 1156; Muhammad Saleem and another v. The State 1988 PCr.LJ 2321: Muhammad Naeem and another v. The State 1999 PCr.LJ 463; Ashique Ali v. The State 2002 MLD 1138; Mst. Shameem alias Aashee v. The State 1989 MLD 4791; Jaro Khan v. The State 1998 PCr.LJ 800; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Muhammad Akram and 3 others v. Mst. Tazeem Akhtar 1990 MLD 1280; Muhammad Bilal and another v. Superintendent of Police, Deera Ghazi Khan and another PLD 1999 Lah. 297; Imtiaz Ahmad and another v. The State PLD 1997 SC 545; Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442; Abdul Razzaq v. The State 1990 MLD 184 and Mst. Nazran Bibi v. The State PLD 1986 Sh.C (AJ&K) 112 ref.

Abdul Karim Noonari for Applicant (in Criminal Bail Applications Nos.341 and 342 of 2002).

Imdad Ali Awan, Abdul Hakeem Bijarani and Rana Asif Kamal for Applicants (in Cr. B.A. No.343 of 2002).

Ghulam Hassan and Malik Moinuddin for Applicant in Criminal Bail Application No.347 of 2002).

Qurban Ali Malano for Applicant (in Cr. B.A. No.348 of 2002).

Mumtaz Ali Siddiqui for Applicant (in Cr. B.A. No.350 of 2002).

Ghulam Hassan for Applicant (in Cr. B.A. No.371 of 2002).

Nizamuddin Baluch for Applicant (in Cr. B.A. No.372 of 2002).

G.D. Shahani, Addl. A.‑G. for the State (in all Bail Applications).

P L D 2003 Karachi 71

Before Wahid Bux Brohi and Rahmat Hussain Jaffri, JJ

GHAZI KHAN and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Appeals Nos.90 and 106 of 2001, decided on 8th October, 2002.

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

‑‑‑‑Art. 264‑‑‑Effect of repeal of laws‑‑‑Applicability‑‑‑Article 264 of the Constitution (1973), would be applicable when the repeal is by, under or by virtue of Constitution itself and would not be applicable when the repeal is by a sub‑Constitutional legislation.

Syed Akhlaque Hussain, Advocate's case PLD 1965 (W.P.) 147 and Mian Arif Iftikhar v. Lahore Improvement Trust PLD 1969 Lah. 1087 ref.

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

‑‑‑‑Ss. 6(d), 7‑A & 39‑B(e)‑‑‑Penal Code (XLV of 1860), S.392‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑General Clauses Act (X of 1897), S.6‑A‑‑‑Constitution of Pakistan (1973), Art.264‑‑‑Jurisdiction of Trial Court‑‑‑Validity‑ ‑Amendment in the Anti‑Terrorism Act, 1997, by Ordinance XXXIX of 2001 was under sub‑Constitutional legislation, therefore, Art.264 of the Constitution (1973) was not applicable, but S.6‑A of the General Clauses Act would be applicable‑‑‑After the promulgation of the said Ordinance on 14‑8‑2001 the Anti‑Terrorism Court had no jurisdiction to try the cases of vehicle‑snatching‑‑‑Offence under S.13‑D of the West Pakistan Ordinance, 1965, was also triable alongwith the offence of vehicle‑snatching as provided under the Schedule appended to the Anti­-Terrorism Act, 1997, but after the said amendment such offence could not be tried by the Anti‑Terrorism Court‑‑‑Impugned judgments were consequently set aside being without jurisdiction and the cases were remanded to Trial Court with the direction to send the same to the Court having jurisdiction in the matter.

Muhammad Iqbal and others v. The State SBLR 2002 Sindh 860; Syed Akhlaque Hussain, Advocate's case PLD 1965 (W.P.) 147 and Mian Arif Iftikhar v. Lahore Improvement Trust PLD 1969 Lah. 1087 ref.

S. Mahmood Alam Rizvi for Appellants (in S.A.T. Appeals Nos.90 and 106 of 2001).

Habib Ahmed, A.A.‑G. for the State (in S.A.T. Appeals Nos.90 vend 106 of 2001).

Date of hearing: 17th September, 2002.

P L D 2003 Karachi 76

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

MUHAMMAD NAEEM‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1092 of 2002, decided on 8th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.406/420/468/471/109‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Bail‑‑‑No allegation of using any fraudulent or forged document as genuine, was made in the F.I.R.‑‑‑Prosecution case was that the scrap which was pledged with the Bank was lifted and disposed of in violation of the agreement with the Bank‑‑‑Effect of the pledge which was in the nature of bailment of movable property by way of security was to be considered by the Trial Court‑‑­Availing of loan facility being basically a transaction of civil matter was also to be determined by the Trial Court as to how far the contravention of 'any contractual obligation had constituted a criminal offence‑‑‑Case against accused, thus, required further inquiry ‑‑‑Co‑accused having already been granted bail, accused was also entitled to the same following the –rule of consistency‑‑‑Accused was admitted to bail in circumstances.

Iqtidar Ali Hashmi for Applicant.

Syed Tariq Ali, Federal Counsel for the State.

Date of hearing: 17th September, 2002.

P L D 2003 Karachi 83

Before S. Ahmad Sarwana and Muhammad Mujeebullah Siddiqui, J

Messrs PHOENIX MILLS LTD., KARACHI and others‑‑‑Petitioners

Versus

CITY DISTRICT GOVERNMENT KARACHI and others‑‑‑Respondents

Constitutional Petitions Nos.D‑1445, D‑1462, D‑1474, D‑1483, D‑1484, D‑1490, D‑1517 and D‑1575 of 2002, decided on 21st November, 2002.

(a) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑

‑‑‑‑S. 142 & Sixth‑ Sched., Item 64(1)(2)(3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Lease and licences for land and buildings‑‑‑Cancellation of lease of land‑‑‑Validity‑‑‑When a lease of land had been executed, the same could be cancelled/forfeited in terms of lease deed only‑‑‑Where the lessees had breached the condition pertaining to the payment of annual land rent in terms of a clause of the lease deed and as per another clause of the lease deed, no resolution was passed by the Authority in its General Meeting determining the respective leases in favour of the lessees, Authority could forfeit/cancel the lease deed for the breach of condition pertaining to the payment of annual land rent but in the manner specified in the relevant specific clause of the lease deed and not otherwise‑‑­Procedure and manner provided in the lease deed itself having not been adhered to, the act of Authorities, cancelling the lease deeds was not in accordance with law and consequently unlawful and invalid.

Hajee Dawood & Co. v. Haji Abdul Karim PLD 1962 (W.P.) Kar. 12; West Punjab Textile Mills v. Government of Punjab PLD 1993 Lah. 297; Anjuman‑e‑Ahmadiaya, Sargodha v. The Deputy Commissioner, Sargodha PLD 1966 SC 639 and Majlis‑i‑Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department PLD 1975 SC 355 ref.

(b) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑

‑‑‑‑S. 142‑‑‑Notice and authorisation‑‑‑Provision of S. 142, Sindh Local Government Ordinance, 2001 deals with the authorisation of the officer only and has nothing to do with the authority or procedure/manner for the cancellation/forfeiture of the lease.

(c) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑

‑‑‑‑Sixth Sched., Item 1 ‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Lease and licences for land and buildings‑‑‑Item 1 of Sixth Sched. of the Sindh Local Government Ordinance, 2001 provides that, a Local Government may grant a licence or lease in respect of any land, open space, building or property vested in it or managed, maintained or controlled by it, on such terms' and conditions as may be provided in the Bye‑laws.

(d) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑

‑‑‑‑Sixth Sched., Item 64(2)(3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Lease and licences for land and buildings‑‑­Applicability of Sixth Sched., Item 64(2)(3) of Sindh Local Government Ordinance, 2001‑‑‑Scope and extent‑‑‑Provision of Sixth Sched., Item 64(3) shall come into operation when a lease or licence is validly cancelled under sub‑para. (2) of Item 64‑‑‑If, however, the cancellation of lease or licence is not valid in itself the consequences provided in para. 64(3) shall not be attracted‑‑‑Provision of para.64(3) provides that the lessee or licensee shall be required to deliver the vacant possession, within a specified time and if he refuses or fails to vacate that land or building or property the Local Government or an officer authorised by it in this behalf may enter upon and take possession of such land, building or other property‑‑‑Lease, in the present case, has been cancelled/forfeited and the possession has been taken over immediately without service of notice under para.64(3) and expiry of the said period‑‑‑Authorities have acted in total disregard of all the provisions of law and principles of natural justice as well as the terms and conditions contained in the lease‑‑‑Such act is absolutely arbitrary and unwarranted in law‑‑‑Any act which is arbitrary and unwarranted in law by its, very nature is mala fide, illegal and unsustainable in law‑‑‑Recourse to Sixth Sched., Item 640)(2)(3) of the Sindh Local Government Ordinance, 2001 in the notice to the lessees and cancellation orders thereof are totally misplaced and are the result of non‑application of mind to the facts and law in circumstances.

(e) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑

‑‑‑‑S. 1(3)‑‑‑Ordinance is not retrospective in its operation.

(f) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑If an order is palpably without jurisdiction the aggrieved person shall not be asked to have recourse to the forums available in the statute for the simple reason that an act without jurisdiction is void ab initio and consequently the aggrieved person shall be within his right to invoke the Constitutional jurisdiction of High Court.

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

‑‑‑‑S. 114‑‑‑Sindh Local Government Ordinance (XXVII of 2001), 5.142 & Sixth Sched., Item 64(1)(2)(3)‑‑‑Lease and licences for land and buildings‑‑­Forfeiture and cancellation of„ lease on default in payment of annual rent by the lessee to the lessor‑‑‑Where a forfeiture has occurred due to non‑payment of rent the tenant has second chance to pay the rent as well as interest under S.114, Transfer of Property Act, 1882 which right has been denied in the present case‑‑‑Covenant of forfeiture for non‑payment of rent is regarded as merely a clause for securing payment of rent, and unless the tent has by his conduct disentitled himself to equitable relief, the Courts cart grant relief against forfeiture of tenancy on the tenant paying the rent due, interest thereon and costs of the suit.

Hajee Dawood & Co. v. Haji Abdul Karim PLD 1962 (W.P.) Kar. 12; West Punjab Textile Mills v. Government of Punjab PLD 1993 Lah. 297; Anjuman‑e‑Ahmadiaya, Sargodha v. The Deputy Commissioner. Sargodha PLD 1966 SC 639; Majlis‑i‑Intizamia. Jamia Masjid. Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, PLD 1975 SC 355 and Pradyuman Kumar v. Virendra Goyal (1969) 3 SCR 950 ref.

(h) Sindh Local Government Ordinance (XXVII of 2001)‑‑‑

‑‑‑‑Sixth Sched., Item 64(1)(2)(3)‑‑‑Constitution of Pakistan (1973), Art, 199‑‑‑Constitutional petition‑‑‑Lease and licence for land and buildings‑­Forfeiture and cancellation of lease on default in payment of annual rent by lessee to the lessor‑‑‑Leasing Authority, in the present case, had issued challans for payment of other taxes and dues but had totally ignored the recovery of rent of the leased land‑‑‑Held, extreme action of forfeiture/cancellation of the leases in few cases, without notice and by not adopting the prescribed procedure provided in the lease deeds and without giving a chance to pay the arrears of land rent, would not be reasonable and at the same time discriminatory.

(i) Sindh Local Government Ordinance (XXVII of 2001)‑‑

‑‑‑‑Sixth Sched., Item 64(2)(3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Lease and licences for land and buildings‑‑­Cancellation/forfeiture of lease on default in payment of annual rent of the land by lessee‑‑‑Taking over the possession of the land by the Authorities by force and in arbitrary manner was deprecated by the High court‑‑‑High Court observed that Authorities ought to have adopted the procedure and manner provided in the lease deed and even if the Authority was under the impression that provisions of Sixth Sched., Item 64(2)(3) of the Sindh Local Government Ordinance, 2001 were applicable they ought to have abided by the procedure prescribed in the said provisions‑‑‑Another course open to the Authorities was to file a suit for possession, after the cancellation/forfeiture of the lease‑‑‑Every person and particularly the public functionary and civil agencies were always expected to act reasonably and strictly in accordance with the provisions of law and the principles of natural justice‑‑‑Any act done in colourable manner and tainted with arbitrariness and abuse of power was always mala fide and without jurisdiction which was liable to be struck down‑‑‑High Court prohibited the Authorities from resuming and taking over the possession of any such land in which the possession had not been taken over so far and in the cases the possession had been taken over the authorities were directed to immediately vacate the plots under consideration in the present cases and to restore the possession of the plots to the lessees forthwith‑‑‑Subject properties were ordered to be de-sealed immediately and lessees be allowed to enter into the plots and buildings‑‑‑Authorities were directed to issue challans to the lessees indicating the entire amount of land rent due giving an opportunity to the lessees to pay the land rent within the period specified in the respective challans.

Mushtaq A. Memon, Ch. Tanveer Amjad, Khalilur Rehman, Tufail H. Ebrahim, Aga Faquir Muhammad and Munirur Rehman for Petitioners.

Manzoor Ahmed for Respondents.

Dates of hearing: 15th, 20th and 21st November, 2002.

P L D 2003 Karachi 97

Before Sarmad Jalal Osmany and Mushir Alam, JJ

MANZOOR AHMED‑ ‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Accountability Appeal No.58 of 2002, decided on 8th October, 2002.

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

‑‑Ss. 426 & 403‑‑‑Constitution of Pakistan (1973), Art.13‑‑‑Penal Code (XLV of 1860), S.409‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), Sched., Sr. No.2‑‑‑Customs Act (IV of 1969), S.156(1)(82)‑‑­Suspension of sentence ‑‑‑First prosecution of accused under the Customs Act had not reached any conclusion‑‑‑Second trial of accused under the NAB Ordinance, therefore, was neither violative of Art.13(a) of the Constitution nor in contravention of S.403(1), Cr.P.C.‑‑‑Trial Court apparently had not committed any grave error in appraisal of evidence while finding the accused guilty and convicting him‑‑‑Application for suspension of sentence was dismissed in circumstances.

Muhammad Ashraf v. The State 1905 SCMR 626; The State v. Nasim Amin Butt 2001 SCMR 1083; Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi PLD 1978 SC 121; State v. Anwar Khattak PLD 1990 FSC 62; Ismail A. Rehman v. Muhammad Sadiq PLD 1990 Kar. 286 and Hussain Abdullah Salum v. The State PLD 2001 Kar. 283 ref.

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

‑‑‑‑Art. 13(a)‑‑‑Criminal Procedure Code (V of 1898), S.403(1) ‑‑‑ Protection against double punishment‑‑‑Both the provisions of law viz. Art.13(a) of the Constitution and S.403, Cr.P.C. contemplate that before the same can be pressed into service the first trial of the accused must have been concluded ,which may either result in an acquittal or conviction.

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

--‑S. 426‑‑‑Suspension of sentence‑‑‑Assessment of evidence‑‑‑Only tentative assessment of the evidence on record is to be made at bail stage and details are to be thrashed out at the regular hearing of the matter.

I. A. Hashmi for Applicant.

Amir Raza Naqvi for the State.

Date of hearing: 2nd August, 2002.

P L D 2003 Karachi 105

Before Sabihuddin Ahmad and S. Ali Aslam Jafri, JJ

MANSURUL HAQUE‑‑‑Petitioner

Versus

GOVERNMENT OF PAKISTAN and another‑‑‑Respondents

Constitutional Petition No. D‑1456 of 2002, decided on 11th October, 2002.

National Accountability Bureau Ordinance (XVIII of 1999)‑‑

‑‑‑‑Ss. 9/10‑‑‑Criminal Procedure Code (V of 1898), Ss.403, 249‑A & 265‑K‑‑‑Constitution of Pakistan (1973); Arts. 13 & 199‑‑‑Constitutional petition‑‑‑Double jeopardy‑‑‑Second Reference ‑‑‑Maintainability‑‑‑Subject­ matters of the two references were quite different from each other‑‑‑First Reference already decided related to the corruption and corrupt practices committed by the accused and his one co‑accused during the period when the accused was serving in Pakistan Navy as Chief of the Naval Staff and received commissions and bribes from suppliers who were under contract with Government of Pakistan to supply defence material to Pakistan Navy‑‑­Second Reference related‑ to a different acts of corruption and corrupt practices committed by the accused and two other persons during a different period‑‑‑Trial or prosecution of accused for different offences committed at different times and detected at a later stage was not violative of the principle of double jeopardy or double prosecution or punishment and Art.13 of the Constitution or S.403, Cr.P.C. was not attracted‑‑‑Even otherwise, accused had not approached the Accountability Court under S.249‑A or 265‑K, Cr.P.C. for challenging the impugned proceedings if the same were defective, illegal or not maintainable under the law, and thus invoking the Constitutional jurisdiction was not an appropriate remedy‑‑‑Constitutional petition was dismissed in circumstances.

Rudolph Santobellow v. New York 404 US 257; Sindh Quality Control Board of Drug and another v. Messrs Pioneer Laboratories, Karachi and 6 others 1993 SCMR 1177 and A. Habib Ahmad v. M.K.G. Scott Christian and others PLD 1992 SC 353 ref.

Shaiq Usmani and I.A. Hashmi for Petitioner.

Muhammad Anwar Tariq, Dy. Prosecutor‑General, NAB for Respondents.

Date of hearing; 25th September, 2002.

P L D 2003 Karachi 111

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

THE STATE‑‑‑Appellant

Versus

FAISAL MUSHTAQ and another‑‑‑Respondents

Special Anti‑Terrorism Acquittal Appeal No.54 of 1999, decided on 15th October, 2002.

Penal Code (XLV of 1860)‑‑

‑‑S. 392‑‑‑Anti‑Terrorism Act (XXXVII of 1997), Ss.7 & 25(4)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Appeal against acquittal‑‑report of motorcycle‑snatching had been lodged within 15 minutes of the incident rat the police station‑‑‑Admittedly the complainant had correctly picked out the accused in the identification parade held before the Magistrate‑‑‑Snatched motorcycle and the unlicensed pistol had been secured prom the accused at the, same time within a few hours of the incident‑‑­Civilian people around the site had run away due to the firing between the accused and the police, Therefore, two police constables had signed the recovery memo which was not fatal to prosecution case‑‑‑Witnesses had no enmity or motive for false, implication of accused in the case‑‑‑When the Police were trying to apprehend the accused who was running away with the robbed motorcycle, accused had fired at the police in order to deter them from discharging their official duties which act fell within the definition of S.7 of the Anti‑Terrorism Act, 1997‑‑‑Trial Court while acquitting the accused had misread the evidence‑‑‑Prosecution had proved its case against the accused beyond reasonable doubt ‑‑‑Accused's acquittal was consequently set aside and he was convicted under S.392, P.P.C., S.7 of the Anti-Terrorism Act, 1997 and S.13‑D of the West Pakistan Arms Ordinance, 1965 and sentenced to undergo seven years' R.I. on each count with fine on first two counts‑‑‑All sentences were directed to run concurrently with benefit of S.382‑B, Cr.P.C.

Mehram Ali v. The State PLD 1998 SC 1445; AIR 1954 Nag. 231; AIR 1944 Cal. 234; Lal Passand v. The State PLD 1981 SC 142 and The State v. Farman Ali and others PLD 1995 SC 1 ref.

Advocate‑General, Sindh for the State.

Jawaid Chattari for Respondents.

Dates of hearing: 13th September and 2nd October, 2002.

P L D 2003 Karachi 122

Before Wahid Bux Brohi and Muhammad Mujeebullah Siddiqui, JJ

THE STATE---Appellant

Versus

Syed MAZHAR ALAM and others---Respondents

Criminal Accountability Acquittal Appeal No.65 and Miscellaneous Application No.2123 of 2002, decided on 30th August, 2002.

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

----S. 417---National Accountability Bureau Ordinance (XVIII of 1999), S.32---Appeal.against acquittal---Principle---With the acquittal of an accused person by the .Trial Court, a double presumption of innocence accrues in his favour and therefore prosecution is required to show very strong reasons before an appeal against acquittal is admitted to regular hearing.

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

----Ss. 409/109/34---Prevention of Corruption Act (II of 1947), S.5(2)--­National Accountability Bureau Ordinance (XVIII of 1999), S.32---Appeal against acquittal---Accused had neither sanctioned the advance nor they were beneficiary of the money advanced by the Chairman of the Establishment to the co-accused---NAB Authorities had withdrawn the case against the said absconding co-accused and secured his discharge without even asking him to surrender before the Accountability Court which was a matter of great favour to him---If such magnanimity could be shown to an accused person who was the actual beneficiary of the alleged corrupt practices and was fugitive at law having remained absconder till conclusion of the case, there could not be any earthly reason for denying the benefit of acquittal to the accused who had at the most complied with the orders of their superior without any allegation whatsoever of deriving any monetary benefit---Order of acquittal recorded by the Accountability Court was in consonance with the principles of justice and did not suffer from any illegality or miscarriage of justice and warranted no interference---In the interest of good governance the officials performing their acts in good faith should be protected otherwise they would be reluctant to take decision and/or avoid or prolong the same on one pretext or the other which would ultimately lead to paralysis of - State-machinery and such a course cannot be countenanced by the Supreme Court---Such officials have to be protected where there was no direct evidence of any corrupt motive or of any illegal gain---Prosecution in the present case had no evidence direct or indirect to establish any personal gain on the part of the accused---Appeal against acquittal of accused at the instance of National Accountability Bureau was dismissed in limine in circumstances.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 ref:

(c) Administration of justice---

---- Law of consistency and the rule of justice and equity requires that the Court should act in furtherance of justice without any discrimination.

Muhammad Anwar Tariq, DPGA for Appellant/State.

Date of hearing: 30th August; 2002.

P L D 2003 Karachi 127

Before Muhammad Mujeebullah Siddiqui and Azizullah A. Memon, JJ

HUSSAIN BUX and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.D‑33 of 1995, Criminal Jail Appeal No.D‑39 of 1999 and Criminal Reference No.D‑5 of 1995, decided on 20th December, 2002.

(a) Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 309, 310 & 53‑‑‑Waiver or compounding of Qisas-‑‑An adult sane "Wali" has a right to waive the right of Qisas and to retain his right of receiving Diyat or he may waive the right of Qisas as well as Diyat, which is a compensation/substitute for the waiver of right of Qisas‑‑‑If a "Wali" of deceased/victim waives the right of Qisas as well as compensation i.e., Diyat, the offender is to be acquitted of the charge, but if the "Wali" has merely waived the right of Qisas, then the offender is liable to be convicted for Qatl‑i‑Amd or as the case may be and offender would be liable to the sentence of paying compensation by way of Diyat or payment of Badl‑i‑Sulh, because Qisas and Diyat are two distinct punishments and are not the same kind of punishment ‑‑‑Qisas and Diyat, therefore, are separately and distinctly mentioned in S.53, P.P.C. which enumerates different kinds of punishments to which offenders are liable under the P.P.C.

(b) Interpretation of statutes‑-

‑‑‑‑ When different words and expressions are used by the Legislature in the same section or different sections of the same statute, then such different words and expressions shall connote different meanings and convey different intentions of the Legislature.

(c) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 309, 310, 311 & 338‑E‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Waiving or compounding of offence‑‑‑Effect‑‑‑When the offence is waived or compounded and the Court accepts the compromise then the convicted persons are to be acquitted unless the Court is of the view that punishment is to be awarded by way of Tazir‑‑‑In the absence of an order awarding Tazir, the accused persons are to be acquitted‑‑‑Expression "acquittal" means a declaration that the accused is found not guilty of the offence and means the process of freeing or being freed from the charge especially by a judgment of not guilty‑‑‑Once the accused is acquitted of the charge then there can be no punishment.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 149, 309 & 310‑‑‑Criminal Procedure Code (V of 1898), S.345 & Sched. II‑‑‑Constructive liability, compounding of‑‑‑Offence under S.149, P.P.C. is by way of constructive liability and when the main offence is allowed to be compounded and the persons who have taken specific part in the commission of offence are allowed to compound, then the persons who are convicted on account of being merely members of the unlawful assembly are also entitled to the concession of compromise/compounding/waiver, otherwise it would not be in consonance with the principles of justice, in accordance with the Injunctions of Islam as laid down in Holy Qur'an and Sunnah.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/149, 324/149, 309 & 310‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Compromise‑‑‑All the heirs of both the deceased had compromised with the three accused in respect of all the offences committed by them‑‑‑Acceptance of compromise was in the better interest of the parties for ending their enmity and giving them a peaceful living atmosphere and also saving the loss of lives in future‑‑‑Compromise was consequently accepted and the accused were acquitted accordingly. ‑‑[Moula Bux v. The State 1992 MLD 1590 acid Usman v. The State 1992 PCr.LJ 1960 overruled].

Moula Bux v. The State 1992 MLD 1590 and Usman v. The State 1992 PCr. LJ 1960 overruled.

Sarwar Khan v. The State 1994 PSC (Crl.) 212; Muhammad Ishaq alias Kali v. The State 1994 PSC (Crl.) 213; Muhammad Rafiq v. The State 1994 PSC (Crl.) 231; Aijaz Ahmed alias Aijaz Hussain v. The State 1994 PSC (Crl.) 405 and Alam Shah v. The State 1999 SCMR 2047 ref.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 309, 310, 311, 53 & 299(i)‑‑‑Waiver or compounding of Qisas in Qatl‑i‑Amd‑‑‑Scope‑‑‑Waiver and compounding under Ss.309 & 310, P.P.C. is confined to the right of Qisas only and Tazir is a punishment distinct from Qisas as specified in S.53, P.P.C. and defined in S.2990), P.P.C. to mean punishment other than Qisas, Diyat, Arsh or Daman ‑‑‑Effect of non obstante clause in S.311, P.P.C. is that in spite of acceptance of the waiver or compounding of a right of Qisas in Qatl on the part of the "Wali", Court still holds the discretion to punish the offender by way of Tazir keeping in view the principle of Fasad‑fil‑Arz‑‑‑Such discretion of the Court is not controlled by the provisions contained in Ss.309 & 310, P.P.C. but is notwithstanding the provisions contained therein. ‑‑[Moula Bux v. State 1992 MLD 1590 and Usman v. The State 1992 PCr.LJ 1960 overruled].

Moula Bux v. State 1992 MLD 1590 and Usman v. The State 1992 PCr.LJ 1960 overruled.

(g) Interpretation of statutes‑--

‑‑‑‑ No provision or section in the statute is to be read in isolation‑‑‑All the provisions of law are to be read in the totality of the scheme and in cohesion with each other in order to ascertain the intention of the Legislature and the purpose of law.

(h) Interpretation of statutes‑--

‑‑‑‑ No provision of law is to be interpreted in a manner which may render another provision of law as superfluous, redundant or nugatory‑‑‑Even if some apparent discrepancy or contradiction appears in different provisions of a statute, it is to be interpreted in a manner that the various provisions are reconciled and the intention/purpose of the law is achieved.

(i) Penal Code (XLV of 1860)‑‑---

‑‑‑‑Ss. 309, 310, 311 & 338‑E‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Tazir can be awarded after accepting compromise‑‑‑Court even after accepting the waiver/compounding of the right of Qisas under Ss.309/310, P.P.C. or after accepting waiver of compounding of offence under S.338‑E, P.P.C. read with S.345, Cr.P.C. can award Tazir by taking recourse to the provisions contained in S.311, P.P.C. read with S.338‑E, P.P.C.‑‑[Moula Bux v. The State 1992 MLD 1590 and Usman v. The State 1992 PCr.LJ 1960 overruled].

Moula Bux v. The State 1992 MLD 1590 and Usman v. The State 1992 PCr. LJ 1960 overruled., Khalid Iqbal Memon for Appellants Nos. 1 to 4 (in Criminal Appeal No.D‑33 of 1995).

Ali Azhar Tunio, Asstt. A.‑G. for Respondent (in Criminal Appeal No.D‑33 of 1995).

Khalid Iqbal Memon and Ahmed Ali Shaikh for Appellant (in Criminal Jail Appeal No.D‑39 of 1999).

Ali Azhar Tunio, Asstt. A.‑G. for Respondent (in Criminal Appeal No. D‑39 of 1999).

Muhammad Bachal Tunio, Addl. A.‑G. (in Criminal Reference No. D‑5 of 1995).

Ali Nawaz Ghanghio: Amicus curiae.

Date of hearing: 20th December, 2002.

P L D 2003 Karachi 145

Before S. Ahmad Sarwana, J

ABDUL GHAFFAR NOOR‑‑‑Plaintiff

Versus

KARACHI BUILDING CONTROL AUTHORITY and others‑‑‑Respondents

Suit No.320 and Civil Miscellaneous Applications Nos.6084 and 6105 of 2002, decided on 7th October, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XLVII, R.1(c)‑‑‑Review of judgment‑‑‑Discovery of new and important matter or evidence‑‑‑Plaintiff sought review of judgment on the ground that the Trial Court did not consider the documents filed by the plaintiff which were required to be considered‑‑‑Documents filed by the plaintiff alongwith the review application were in his possession but he did not file them in the Court at any time during the trial‑‑‑Effect‑‑‑To justify review under O.XLVII, R.1(c), C.P.C., the plaintiff had to show discovery of new and important matter or evidence, which aster the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was made or on account of some mistake or error apparent on the face of the record or for any other sufficient reason‑‑‑No discovery of new and important matter or evidence had taken place which after the exercise of due diligence was not within the knowledge of the plaintiff or could not be produced by him at the time the order was passed‑‑­Even if the documents had been filed it would not have made any difference in the ultimate decision of the case‑‑-Court had not come to a wrong conclusion on account of some mistake or error apparent on the face of the record‑‑‑No other argument was advanced in support of the review application‑‑‑High Court declined to interfere in exercise of review jurisdiction with the judgment and decree passed against the plaintiff‑‑­Application was dismissed in circumstances.

Shahenshah Hussain for Plaintiff.

Ms. Zahida Naqvi for the K.B.C.A.

P L D 2003 Karachi 148

Before Muhammad Moosa K. Leghari, J

Mst. MARIUM HAJI and others‑‑‑Plaintiffs

Versus

Mrs. YASMIN R. MINHAS and others‑‑‑Defendants

Suit No. 1582 of 1997 and Civil Miscellaneous Application No. 115 of 2102, decided on 21st March, 2002.

(a) Act of Court‑‑‑

‑‑‑‑ No one should suffer by any act of a Court.

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

‑‑‑‑S. 151, O.XIII, Rr.1,2 & 4‑‑‑Documents, production in evidence‑‑­Marking of exhibits‑‑‑Object and procedure‑Certain documents were sought by the plaintiffs to be produced in evidence which neither their counsel produced at the time of evidence nor the Trial Court marked them exhibit itself although the same were already available on the file‑‑‑Contention of the plaintiffs was that it was the duty of the Court to exhibit itself the documents produced by the plaintiffs with their affidavits‑in‑evidence ‑‑‑Validity‑‑­Counsel of the plaintiffs was obliged to have got the documents exhibited in evidence while recording evidence‑‑‑Merely because the documents found mention in the affidavits‑in‑evidence, such documents could not be deemed to have been received in evidence‑‑‑Plaintiffs could not be absolved of responsibility to get documents properly exhibited, as the same would provide an opportunity to the other side to raise objection with regard to the admissibility and genuineness or otherwise of the documents sought to be tendered in evidence‑‑‑Court was not bound to exhibit the documents itself‑‑­Counsel for plaintiffs, in the present. case, had not acted in a diligent manner‑‑‑High Court did not allow to produce the documents in evidence and the contention of the plaintiffs was baseless, contrary to the facts, perverse and misconceived‑‑‑Application was dismissed in circumstances.

Black's Law Dictionary; 1992 SCMR 1772; PLD.1990 SC 661 and 2001 YLR 2350 ref.

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

‑‑‑‑O. XVIII, R.18‑‑‑Site inspection‑‑‑Contents of report of official assignee whether part of judicial record‑‑‑Dispute was with regard to the stage of construction carried on the spot and to ascertain the same, the‑ Trial Court appointed Official Assignee to inspect the site‑‑‑Official Assignee, on the direction of the Trial Court engaged a professional architect for the specific purpose‑‑‑Reference submitted by the Official Assignee in the 'Trial Court included report of the architect‑‑‑Plea raised by the party was that the report of architect filed with the reference of the Official Assignee was a piece of evidence‑‑‑Validity‑‑‑Such report of architect submitted along with the reference did neither form part of any judicial proceedings nor the same was carried out for the purpose of resolving controversy in the main suit‑‑­Assignee's reference having come for consideration by the Trial Court and an issue to that effect was framed, the purpose of carrying out the inspection was achieved‑‑‑Plea raised by the party was repelled in circumstances.

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

‑‑‑‑O. XIII, Rr.1 & 2‑‑‑Evidence‑‑‑Additional evidence, production of‑‑­Filling in lacunas in the case of the party intending to produce additional evidence‑‑‑Validity‑‑‑By way of producing expert's report as additional evidence, the party intended to fill in the gap in the case which could not be permitted as it would amount to allowing a party to derive benefit out of its own follies‑‑‑Additional evidence was not allowed in circumstances.

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

‑‑‑‑O. XVIII, R.18‑‑‑Inspection of site by Court‑‑‑Object and scope‑‑‑Power of inspection of property is discretionary and in peculiar circumstances the inspection of location may be necessary and helpful in deciding a case, but it should not be substituted as an evidence, which otherwise is required to be produced by a party.

(f) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 164‑‑‑Evidence based upon modern techniques or devices‑‑­Production of photographs in evidence‑‑‑Procedure‑‑‑Photographs may be admissible in evidence, subject to proof through witness that the prints were taken from the negatives were untouched‑‑‑Technology has so immensely advanced, that the photographs or even video tapes could be manipulated and maneuvered‑‑‑Advancement in the technology besides being advantageous, had also caused adverse effect on the society‑‑‑Commission of cyber crime was not imaginable three decades age‑‑‑Unless it was proved that the photographs were not manipulated, these could not be allowed to be produced in evidence.

(1965) 2 All ELR 464 ref.

(g) Practice and procedure‑‑‑

‑‑‑‑ Plaintiff has to prove his case by leading independent evidence.

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

‑‑‑‑S. 151‑‑‑Inherent powers of High Court‑‑‑Scope‑‑‑Exercise of inherent powers available to High Court under S.151, C.P.C. should not affect the substantive rights of the party nor should defeat general principles of law‑‑­Such powers cannot be exercised to condone gross negligence on the part of the parties.

Ms. Rizwana Ismail for Plaintiffs.

Syed Sharifuddin Pirzada, alongwith Muneer A. Malik for Defendants Nos. 1 and 8.

Raja Sikandar Khan Yasir for Defendant No.7

P L D 2003 Karachi 156

Before Muhammad Moosa K. Leghari, J

Messrs GULF AIR‑‑‑Plaintiff

Versus

Messrs SHAKIL AIR EXPRESS (PVT) LTD.‑‑‑Defendant

Suit No.274 of 1998, decided on 8th October, 2002.

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

‑‑‑‑O. VI, R.2‑‑‑Material fact‑‑‑Authority :o sign plaint is a material fact in terms of O.V1, R.2, C.P.C.‑‑‑Validity‑‑‑‑Question as to whether person who signed the plaint of the plaintiff was or was not duly authorized, was a material fact‑‑‑All facts which, though not necessary to establish the cause of action or defence, but which the party pleading was required to prove, at the trial, were also material facts in terms of O.VI, R.2, C.P.C.

PLD 1947 PC 180 ref.

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

‑‑‑‑O. VI, Rr. 14, 15 & O. XXIX, R. 1‑‑Plaint filed by unauthorized person‑‑‑Maintainability‑‑‑authority to sign and verify plaint on behalf of Corporation‑‑‑Proof‑‑ ‑‑Defendant objected to the maintainability of the suit on the ground that the suit was filed by the person who was not duly authorized by the plaintiff‑Corporation‑‑‑Validity‑‑‑Such fact could only be shown in the evidence whether the person who signed and verified the plaint was or was not duly authorised‑‑‑Said fact was neither pleaded in the plaint nor it was said so in the affidavit in ex parte proof, therefore, the person who signed the pleadings on behalf of the plaintiff was not competent to sign and verify the plaint‑‑‑Suit was not competently instituted and the same was dismissed in circumstances.

Basdeo v. John Smidt (1899) 22 All 55 = 1899 AWN 172; Bisheshar Nath v. Emperor (1918) 40 All 147; AIR 1925 Sindh 275; AIR 1925 Lah. 338; Calico Printers Association Ltd.'s case AIR 1930 Born. 566; Osborne Garrette & Co. Ltd.'s case AIR 1931 Sindh 178: AIR 1936 Bom. 418: AIR 1939 Bom.347; Haji Shaikh Fazal Hussair, v. Bhabani Prosad Sana PLD 1963 Dacca 25; Messrs Muhammad Siddiq Muhammad Umar's case PLD 1966 SC 684; PLD 1971 SC 550; Abdul Rahim and 2 others v. Messrs U.B.L. PLD 1997 Kar. 62 and China Among Construction v. K.A. Construction Co. 2001 SCMR 1877 ref.

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

‑‑‑‑O. IX. R.6 & O.XIX, R.2‑‑Affidavit‑‑‑Ex parse decree‑‑‑Swearing of affidavit in ex parte proof‑‑‑Failure to verify contents of affidavits‑‑‑Suit for recovery of money was filed and ex parte proceedings were initiated against the defendant ‑‑‑Plaintiff in proof of his case produced affidavit in evidence‑‑­Deponent had neither stated in the affidavit that the statement of accounts or any document was prepared by him ‑‑Entries, made in the pro form as statement were not stated in the affidavit to be true and correct ­Even the deponent had not stated on oath that the contents of the affidavit in evidence were true and correct td the best of his knowledge and belief‑‑­Effect‑‑‑Neither such affidavit could be relied upon, nor the documents produced in evidence were admissible in evidence‑‑‑‑Plaintiff failed to adduce any evidence with regard to the liability of the defendants‑‑‑Suit was dismissed in circumstances.

Nizam Ali Khan for Plaintiff.

Nemo for Defendant.

Date of hearing: 18th September, 2002

P L D 2003 Karachi 162

Before Zia Parwez, J

M.A. HAMID ALI BUKSH‑‑‑Plaintiff

Versus

CITY DISTRICT GOVERNMENT and others‑‑‑Defendants

Suit No. 1080 of 1991, decided on 25th September, 2002.

(a) Limitation Act (IX of 1908)‑‑‑-

‑‑‑‑S. 3 & Art. 142‑‑‑Specific Relief Act. (I of 1877), S.8‑‑‑Recovery of possession of immovable property‑‑‑Limitation‑‑‑Suit plot was taken over and converted into the park in year 1975 and the suit for recovery of possession was filed in the year 1991‑‑‑Validity‑‑‑Such suit was hit by provision of S.3 of the Limitation Act, 1908, and was barred by Art. 142 of Limitation Act, 1908, which provided maximum period of 12 years‑‑‑Suit was not maintainable in circumstances.

(b) Sindh Local Government Ordinance (XII of 1979)‑‑‑

‑‑‑‑S. 117(2)‑‑‑Cancellation of Allotments of Plots Reserved for Amenity/Community Purposes [M.L.Os.1977, Zone (C)] Nos. 34, 89 & 247‑‑‑Amenity plot‑‑‑Conversion into commercial plot‑‑‑Suit plot was amenity plot reserved for park as shown in the lay‑out plan of the area‑‑‑Such plot was covered by Martial Law Orders Nos. 34, 89 & 247‑‑‑Conversion of amenity plot into commercial plot was contrary to the, law‑‑‑Amenity plot could not be converted into commercial plot.

Ardeshir Cowasjee and 10 others v. Karachi Buildings Control Authority (KBCA) and 4 others 1999 SCMR 2883 ref.

(c) Sindh Local Government Ordinance (XII, of 1979)‑‑-

‑‑‑‑S. 117(2)‑‑‑Cancellation of Allotments of ,Plots Reserved for Amenity/Community Purposes [M.L.Os.1977, Zone (C)] Nos. 34, 89 & 247‑‑‑Specific Relief Act (I of 1877), S.8‑‑‑Cancellation of allotment‑‑­Failure to give notice‑‑‑Conversion of amenity plot into commercial plot‑‑­Suit plot was carved out of an amenity plot reserved for public park‑‑­Authorities cancelled allotment of the plot and suit was filed for recovery of possession of the plot‑‑‑Contention of the plaintiff was that the allotment was cancelled without notice‑‑‑Validity‑‑‑Suit plot was covered under Martial Law Orders Nos.34, 89 & 247 read with S.117(2) of Sindh Local Government Ordinance, 1979‑‑‑Cancellation having been effected by operation of law, no separate proceedings or notice was required‑‑‑Allotment was rightly cancelled by the Authorities and High Court declined to interfere with the ,order of cancellation of the allotment‑‑‑Suit was dismissed in circumstances.

Ardeshir Cowasjee and 10 others v. Karachi Buildings Control Authority (KBCA) and 4 others 1999 SCMR 2883 ref.

Shoaib Ali for Plaintiff. Sanaullah Qureshi and Manzoor Ahmed for Defendants.

Date of hearing: 24th September, 2002.

P L D 2003 Karachi 171

Before Zia Perwez, J

Messrs MUHAMMAD SADIQ MUHAMMAD SALEEM‑‑‑Plaintiff

Versus

RIAZ AHMAD through Legal Heirs and others‑‑‑Defendants

Suits Nos. 1263, 1008 of 2001, 620 of 2002 and Civil Miscellaneous Application No.4354 of 2002, decided on 8th October, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Plaint, rejection of‑‑‑Object and scope‑‑‑Declaration to title‑‑‑Prima facie case in favour of plaintiff‑‑‑Suit property was owned by a firm and after the death of one of the partners, the remaining partners sought title of the property‑‑‑Partnership firm comprising of more than two partners was still in operation and the same had not been dissolved‑‑‑Plaintiffs claimed to be in possession of all the original documents of title of the suit property and in undisturbed possession over a period of several decades‑‑‑Defendant filed application under O.VII, R.11, C.P.C. for rejection of plaint on the ground that the plaintiffs could not seek the relief as prayed for in the plaint and the suit was time‑barred‑‑‑Validity‑‑‑Object of rejection of plaint is not to shut out case where the plaintiff is in a position to adduce evidence .for a decision of his case on merits according to law nor to prejudge a decision without affording an opportunity to the plaintiff to place evidence on record‑‑‑Such course would be opposed to the principles of natural justice‑‑‑From the contents of the plaint and its annexures a prima facie case in favour of plaintiffs had been made out‑‑‑Merits of the case were to be considered at the time of evidence when parties would be at liberty to propose the relevant issues in support of their respective contentions‑‑‑Conditions specified for exercise of power under the provisions of O.VII, R.11, C.P.C. were to be strictly construed and not to he resorted to unless these were satisfied‑‑‑Application was dismissed in circumstances.

High Court Appeal No.238 of 1999 fol.

Civil Petition for Leave to Appeal No.81‑K of 2001; Metro Cooperative Housing Society Limited v. Bonanza Garments Industries (Pvt.) Ltd. 1996 MLD 593; N.E.D. University of Engineering and Technology v. Tariq Ali and 2 others PLD 1993 Kar. 626; Habibur Rehman v. Mst. Wahdania and others PLD 1984 SC 424 and Shuja‑ul‑Mulk v. Firm Abdul Ghafoor‑Abdul Qadim PLD 1964 Pesh. 110 and Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289 ref.

S. Mazharul Haque for Plaintiff.

Muhammad Sharif for Defendant No. 1 (i) to (viii).

Date of hearing: 8th October, 2002.

P L D 2003 Karachi 174

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

DILAWAR HUSSAIN and 6 others‑‑‑Appellants

Versus

PROVINCE OF SINDH through Secretary, Revenue Department, Karachi and 2 others‑‑‑Respondents

High Court Appeal 11o.114 of 1993, decided on 29th October, 2002.

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

‑‑‑‑Ss. 28‑A & 4 [as inserted by Land Acquisition (Sindh Amendment) Ordinance (XVIII of 1984)‑‑‑Additional compensation‑‑‑Principle of past and closed transaction‑‑‑Applicability‑‑‑Dispute was with regard to the payment of additional compensation under S.28‑A of " Land Acquisition Act, 1894 regarding the land acquired in the year 1960‑‑‑Authorities refused to pay additional compensation on the ground that the landowners had received certain portion of compensation and the matter had become past and closed transaction‑‑‑Validity‑‑‑Whenever land owner received part of the compensation payable or even the entire amount due at a particular point of time, the matter would not become past and closed transaction and the provisions of S.28‑A of Land Acquisition Act, 1894, would not become inapplicable as the same was not a case of alive or dead issue‑‑‑Question of amount of compensation payable from the date of notification under S.4 of Land Acquisition Act, 1894, till the entire amount of compensation was determined was a single transaction and additional compensation under S.28‑A of Land Acquisition Act, 1894, would have to be calculated by bifurcating the unpaid amount from that which had already been paid to landowner‑‑‑Additional compensation was to be calculated only on the basis of the unpaid amount in view of proper construction of S.28‑A of the Act‑‑‑Landowners were entitled to receive the additional compensation under S.28‑A of Land Acquisition Act, 1894 for the unpaid amount of the compensation from the date of notification under S.4 of Land Acquisition Act, 1894, till the final payment of the compensation was made to them.

Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC 673; Bhrigunandas Prasad and others v. Appellate Officer and others AIR 1966 SC 1683; Customs and Excise Commissioners v. Thorn Electrical Industries Ltd. (1975) 1 AER 439; Azam v. The State 1990 SCMR 1360 and Saadi Jafri Zainabi v. Land Acquisition Collector PLD 1992 SC 472 ref.

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

‑‑‑‑S. 28‑A‑‑‑Words "additional compensation"‑‑‑Connotation‑‑‑Payment of additional compensation is required under S.28‑A of Land Acquisition Act, 1894, by way of an additional amount of fifteen per cent. per annum from the date of notification under S.4 of Land Acquisition Act, 1894, till the date of payment‑‑‑Though the words "additional compensation" have been used, it is clear that such compensation is not payable by way of consideration for acquisition of land itself:

Saadi Jafri Zainabi v. Land Acquisition Collector PLD 1992 SC 472 ref.

(c) Land Acquisition Act (I of 1894)‑‑‑--

‑‑‑S. 28‑A [as inserted by Land Acquisition (Sindh Amendment) Ordinance (XVIII of 1984)]‑‑‑Additional compensation‑‑‑Import, scope and object‑‑­Government or other acquiring agencies often avoid or delay payment of compensation to landowners who keep on litigating for decades‑‑­Legislature, by incorporating S.28‑A in Land Acquisition Act, 1894, intended to compensate such landowners by providing additional compensation and at the same time to deter acquiring agencies from delaying the payment‑‑‑Landowner under S.28‑A of Land Acquisition Act, 1894, cannot take a premium on the basis of the entire amount of compensation inclusive of amounts already pocketed by him.

Muhammad Sharif for Appellants.

Khalil‑ur‑Rehman for Respondent No.3.

Dates of hearing: 17th and 18th October, 2002.

P L D 2003 Karachi 180

Before Muhammad Moosa K. Laghari, J

ADAMJEE CONSTRUCTION CO. LTD.‑‑‑Plaintiff

Versus

ISLAMIC REPUBLIC OF PAKISTAN and 2 others‑‑‑Defendants

Suit No. 1420 of 2001, decided on 25th October, 2002.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 16‑‑‑Award, validity of‑‑‑Power of Court‑‑‑Scope‑‑‑Court while examining validity of an award does not act as a Court of Appeal and is not vested with the powers to undertake reappraisal of evidence in order to discover any error or infirmity in the award:

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Preamble‑‑‑Role of Courts‑‑‑Scope‑‑‑Role of Courts in the scheme of the Arbitration Act, 1940, is of supervisory character.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 16 & 17‑‑‑Making of award rule of Court‑‑‑Duty of Court‑‑Non­-filing of objections‑‑‑Effect‑‑‑Before making award rule of Court and pronouncing judgment in terms of the award, it is duty of the Court to see that there was no cause to remit the award for reconsideration or to set it aside‑‑‑Court has to satisfy itself that the award does not suffer from patent illegality or defect necessitating either setting aside of the award or its remission to the Arbitrator‑‑‑Failure to file objections within prescribed time does not absolve the Court of its responsibility to decide whether or not the award was valid on the face of it.

Ashfaq Ali Qureshi v. Municipal Corporation, Multan and others 1985 SCMR 597; Abdul Khaliq v. Province of East Pakistan and another PLD 1964 Dacca 166 and Province of Balochistan v. Messrs Tribal Friends Company, Loralai PLD 1986 Quetta 321 ref.

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 16‑‑‑Remitting of award ‑‑‑Suo motu powers of Court‑‑‑Scope‑‑­Enough powers have been given to the Court to remit the award to the arbitrator for reconsideration on the basis of certain conditions as enumerated in S.16 of Arbitration Act, 1940.

(e) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 16 & 17‑‑‑Award, making rule of Court‑‑‑Failure to file objections‑‑­Dispute between the parties was referred to sole arbitrator appointed by High Court‑‑‑Claim of plaintiffs was accepted by the sole arbitrator on the basis of evidence adduced and the counter‑claim of defendants was rejected‑‑‑Award was filed in the Court for making the same as rule of the Court‑‑‑Defendants failed to file objections within the stipulated period and time was not extended by the Court‑‑‑Plea raised by the defendants was that the Court had inherent powers to modify or remit the award if the same suffered from patent illegality‑‑‑Validity‑‑‑Apparently the findings whereby the plaintiff was held to be entitled to recovery of amount were devoid of foundation and imaginary‑‑‑Arbitrator himself admitted that no witnesses were produced to explain the method of calculation and formula adopted for determining the claim of the plaintiff‑‑‑Arbitrator had also admitted that there was no evidence on record about the market value or that as to how the operational cost was determined‑‑‑Such admissions being a defect apparent on the face of the award could not be overlooked‑‑‑High Court, therefore, declined to make award rule of the Court‑‑‑Award was remitted to the sole arbitrator for reconsideration of the same after affording full opportunity of hearing to the parties concerned in circumstances.

PLD 1996 SC 108; 1999 SCMR 121; 1983 SCMR 716; PLD 1998 Lah. 132; 1997 CLC 546; PLD 1998 Kar. 79; 1999 MLD 2617 and 2002 CLC 353 ref.

Iqbal Bawani and Muhammad Tariq Qureshi for Plaintiff.

Sarwar Muhammad Khan for Defendants Nos. 2 and 3.

Date of hearing: 17th October, 2002.

P L D 2003 Karachi 188

Before Ali Aslam Jafri, J

A.T.A. GHUMRO‑‑‑Petitioner

Versus

II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI and 2 others‑‑‑Respondents

Constitutional Petition No.882 of 2002, decided on 18th November, 2002.

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

‑‑‑‑S. 3‑‑‑Property of Government‑‑Provisions of Sindh Rented Premises Ordinance, 1979‑‑‑Applicability‑‑‑Where .the owner of premises was a private limited Corporation, its property could not be deemed to be the property of Government‑‑‑Rent Controller had. the jurisdiction over the matter under the provisions of Sindh Rented Premises Ordinance, 1979‑‑­Objection of tenant was repelled in circumstances.

(b) Sindh Rent Premises Ordinance (XVII of 1979)‑‑

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Bona fide personal need of landlord‑‑‑Default in payment of monthly rent‑‑‑Premises was owned by private limited Corporation and tenant being an employee of the Corporation was rented out the premises‑‑­Relationship of landlord and tenant was admitted between the parties in respect of the demised premises‑‑‑Wilful default of the tenant was proved on record and personal bona fide requirement of the Corporation was also proved‑‑‑Rent Controller passed an eviction order and the same was maintained by Appellate Court‑‑‑Contention of the tenant was that the ejectment application filed through General Manager of the Corporation was not validly filed‑‑‑Validity‑‑‑Rent Controller as well as the Appellate Court had exercised their jurisdiction legally and validly while entertaining and adjudicating upon the matter in controversy ‑‑‑Ejectment application filed through General Manager of Corporation did not suffer from any illegality or infirmity‑‑‑Orders/judgments passed by both the Courts below did not require any interference by High Court in exercise of its Constitutional jurisdiction‑‑‑Constitutional petition was dismissed in limine.

PLD 2000 Kar. 269; 1998 CLC 410; 1987 CLC 393 and 1985 CLC 2733 distinguished.

Mansoorul Haq Solangi for Petitioner.

S.A. Shabbar Rizvi for Respondent No.3.

Date of hearing: 14th November, 2002.

P L D 2003 Karachi 195

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

JAMAL KHAN and another‑‑Appellants

versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Jail Appeal No.15 of 2001 and Special A.T.A. No.22 of 2001, decided on 29th November, 2002.

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

‑‑‑‑Ss. 302(b), 302(c), 396, 392 & 353‑‑‑West Pakistan Arms Ordinance AX of 1965), S.13‑D‑‑‑Appreciation of evidence‑‑‑Crime empties secured from the scene of murder were found by the Ballistic Expert to have been tired from the rifle and the pistol recovered from the possession of accused‑‑­Prosecution witnesses had corroborated each other who were independent witnesses having no enmity or motive for false implication of accused‑‑­Chain of facts and circumstances from the stage of robbery till arrest of the accused and recovery of weapons of offence from them had established that they. four in number. with common intention had committed robbery in the coach and thereafter committed the murder of the police constable‑‑‑Judicial confession made by accused was true and voluntary and although it had been retracted, yet it was supported and corroborated on all material particulars by other evidence on record and, thus, it could safely be relied upon for conviction of accused‑‑.‑ Prosecution. thus, had proved its case against accused beyond doubt‑‑‑Section 396, P.P.C. being not applicable in the case, conviction and sentence awarded to accused thereunder were set aside‑‑­Other convictions and sentences of accused were maintained with necessary modifications.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 396‑‑‑Dacoity‑‑‑Applicability of S.396, P.P.C.‑‑‑Provision of S.396, P.P.C. is applicable where five or more persons are involved in the case‑‑­Only four ,persons being involved in. the case conviction awarded by Trial Court under S.396. P.P.C. was not warranted by law which, was set aside by the High Court.

Muhammad Gul v. .The State 1991 SCMR 942; Ali Muhammad v. Ali Muhammad PLD 1996 SC 274 and Abdul Zahir v. The State 2000 SCMR 406 ref.

Mehmood Mohibullah (in Spl. A.T.As. Nos. 15 and 22 of 2001). Habib Ahmad. A.A.‑G. for the State.

Dates of hearing: 22nd. 31st October and 6th November, 2002.

P L D 2002 Karachi 209

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

KUNWAR KHALID YOUNUS‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Constitutional Petition No.D‑1826 of 2002, decided on 30th October, 2002.

(a) Representation of the People Act (LXXXV of 1976)--‑

‑‑‑Ss. 42(4) & 50‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Publication of the name of returned candidate‑‑­Mandatory duty had been cast upon Election Commission to publish the name of the returned candidate on the basis of the consolidated result communicated by Returning Officer‑‑‑Proviso to S.42(4) of Representation of the People Act, 1976 wax only a provision which had enabled the Election Commission not to do so when returned candidate would fail to submit return of election expenses in accordance with S.50 of Representation of the People Act. 1976‑‑‑Candidate, in the present case had not tailed to submit the said return‑‑‑Publishing name of the returned candidate being a ministerial duty to be performed by Election Commission could be enforced by High Court in Constitutional jurisdiction.

Mohtarma Benazir Bhutto v. President of Pakistan PLD 2000 SC 77; Hafeezullah Cheema's case PLD 1977 Jour. 164: Masroor Ahsan v. Muhammad Tariq Chaudhry 1991 SCMR 668; Wasim Sajjad v. Mukhtar Hussain Shah 1986 SCMR 48: Shaikh Abdul Hameed v. Punjab Local Council Authority 1984 CLC 993; Presiding Officer v. Sadruddin Ansari PLD 1967 SC 569 and Aahad Yousuf's case 1986 CLC 1284 ref.

(b) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑Ss. 42. 50 & 103‑AA‑‑‑Notification of returned candidate‑‑‑Irregularities and corrupt practices in election‑‑‑Proof‑‑‑Allegations of irregularities and corrupt practice, must be affirmatively established like a criminal charge and any benefit of doubt must go to the returned candidate‑‑‑Election Commission could not be assumed to be vested with jurisdiction to deviate from notifying the candidate securing higher number of votes as a "returned candidate"‑‑‑Obligation to issue an appropriate notification would exist irrespective of any power that Election Commission could have to pass under S.103‑AA of Representation of the People Act, 1976 to declare election void upon finding of grave illegalities or violation of law‑‑‑Powers under S.103‑AA(2) of Representation of the People Act, 1976 could ix exercised notwithstanding publication of name of returned candidate under S.42(4) of sat Act and such powers could be exercised up to the expiry of 60 days after the publication‑‑‑Powers under S.103‑AA of Representation of the People Act, 1976 could only be exercised upon existence of certain preconditions as laid down and only those cases could be taken up for consideration where illegalities or violations of law were apparent on face of record and decision could be arrived at merely through a summary inquiry.

(c) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑Ss. 42 & 52‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑­Interim relief, grant of‑‑‑Power to grant interim relief was a necessary concomitant out of the power to grant final relief, but such power or direction was requited to be exercised on sound judicial principles‑‑‑Such power was very sparingly exercised in exceptional circumstances particularly against a returned candidate‑‑‑Passing of interim order in election matters and particularly against a returned candidate would not only be detrimental to the interest of returned candidate, but would also deprive electorate from being represented in a Legislative body.

Makhdoom Ali Khan, Attorney‑General for Pakistan for Respondents (on Court's Notice).

Nadeem Azhar, Dy.A.‑G. for Respondent No. 1.

Raja Haq Nawaz, Muhammad Junaid Farooqui and Iqbal _Aqueel for Respondent No.3.

Date of hearing: 30th October, 2002.

P L D 2003 Karachi 216

Before Shabbir Ahmed and Muhammad Sadiq Laghari, JJ

Syed MUSADIQ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.65 of 2002, decided on 20th November, 2002.

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

‑‑‑‑Ss. 173 8t 190(1)‑‑‑Belated police report and taking of cognizance by Court thereon‑‑‑Effect‑‑‑Delay in submission of challan in disregard of S.173, Cr.P.C., by itself, does not vitiate the entire proceedings‑‑­Requirement of S.173(1), Cr. P.C. is directory‑‑‑Submission of belated report after the expiry of the period fixed by S.173, Cr.P.C. although is not the compliance as directed by the said provision, yet it can be considered substantial compliance‑‑‑ Even otherwise, taking of cognizance by the Court on a belated police report is not prohibited under S.190(l), Cr.P.C.‑‑‑Not correct to say that only the report submitted within the prescribed period can be made the foundation of jurisdiction of Court for taking cognizance‑‑­Taking of cognizance by Court on a belated police report is not prohibited under S.190, Cr.P.C.

Manu alias Minthar v. The State of Dehli AIR 1955 SC 196 ref.

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

‑‑‑‑S. 103‑‑‑Search to be made in presence of witnesses‑‑‑Compliance of S.103, Cr.P.C. is not imperative where the recovery is incidental in consequence of the arrest of accused‑‑‑Section 103, Cr.P.C. applies where the police conducts search of a house or place to recover the article for which search is to be made.

Mir Muhammad v. The State 1995 SCMR 614; State v. Shanker 1979 SCMR 1000 and Muhammad Akber v. The State 1975 SCMR 693 ref.

(c) West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑‑S. 13‑‑‑Possession of illicit arms‑‑‑Sending of the weapon to the Fire‑arm Expert for opinion in cases of possession of the arms, is not the requirement of law.

(d) West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑‑S. 13‑D‑‑‑‑Appreciation of evidence‑‑‑One T.T. Pistol and some bullets were alleged to have been recovered from three persons each at the same time and the memo. of arrest/recovery did not indicate any features distinguishing the pistol or bullets from each other, nor the same were sealed separately‑‑­Even no steps were taken at the time of recovery for the individual identification of the recovered articles with reference to the person from whose possession the same were recovered‑‑‑Evidence available on record also did not show that the pistol and the bullets produced before the Court had been recovered from the accused and that he was in possession of the same‑‑‑Joint recovery memo had no evidentiary value ‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Asma Khatoon v. Syed Shabbir Shah, A.C.M. & F.C.M. Court‑IV, Karachi West. and 2 others PLD 1996 Kar. 517; Moosa v. The State 1996 PCr.LJ 361; Abdul Karim alias Rana and another v. The State 1996 PCr.LJ 503; Manu alias Minthar v. The State of Dehli AIR 1955 SC 196; Mir Muhammad v. The State 1995 SCMR 614; State v. Shanker 1979 SCMR 1000; Muhammad Akber v, The State 1975 SCMR 693 and The State v. Bashir PLD 1997 SC 408 .ref.

Khalid Mehmood for Appellant.

Arshad Lodhi, Addl. A.‑G. for the State.

Date of hearing: 20th November, 2002.

P L D 2003 Karachi 222

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

M.Y. CORPORATION (PRIVATE) LTD. ‑‑‑Appellant

versus

Messrs ERUM DEVELOPERS and 2 others‑‑‑Respondents

High Court Appeal No.91 of 1994. decided on 14th November, 2002.

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

‑‑‑O. XXXIX, Rr.I & 2‑‑‑Interim injunction, grant of‑‑‑Bona fides of plaintiff‑‑‑Delay in approaching Court‑‑‑Effect‑‑‑In order to seek injunction, a party has to be vigilant and should approach the Court without any loss of time to show its bona fides‑‑‑Delay ‑in such matters normally disentitles the party from seeking relief of injunction.

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

‑‑‑‑O. XXXIX. Rr. I & 2‑‑‑Interim injunction, grant of‑‑‑Necessary ingredients‑‑‑Party seeking injunction has to show three important ingredients in its favour namely 'prima facie case', 'balance of convenience' and 'irreparable loss'‑‑‑It any one of the three ingredients is missing, the Courts would not ordinarily grant injunction.

(c) Special Relief Act (I of 1877)‑‑‑

‑S. 42‑‑‑Transfer of Property Act (IV of 1882), S.52‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2‑‑‑Interim injunction, grant of‑‑Necessary ingredients‑‑‑Establishing of prima facie case, balance of convenience and irreparable loss‑‑‑Principle of lis pendens‑‑‑Corpus of suit property, maintaining of ‑‑‑Plaintiff not in possession of the suit‑‑land‑‑Entries to favour of the plaintiffs produced in record of rights were cancelled in the year 1981, while the predecessors‑in‑ interest of the plaintiffs were dispossessed in year 1984 and the suit, filed by them, was also dismissed in year 1988‑‑‑Plaintiff filed the suit in the year 1993 and claimed their title to file suit‑land on the basis of letter issued by the Revenue Authorities in favour of the predecessor‑in‑interest of the plaintiffs‑‑‑High Court in its original jurisdiction dismissed the application for grant‑ of interim injunction‑‑‑Contention of the plaintiffs was that they were owners of suit­ land on the basis of letter issued by the Revenue Authorities and refusal to grant injunction would render the proceedings meaningless and would destroy the corpus of the suit property‑‑‑Validity‑‑‑Party, which had chosen not to approach the Court promptly, could not seek injunction of such nature .end that too on the basis of documents which, prima facie, had no legal sanctity‑‑‑Letter of Revenue Authorities certifying the predecessor‑in‑interest of the plaintiffs as owner ex facie had no value in the eyes of law‑‑‑High coup in appeal after examining the record of rights produced by Revenue authorities found that no entry had been effected in favour of predecessor-­in‑interest of the plaintiffs prior to year 1966, which could establish the predecessor‑in‑interest as owner of land at any point of time‑‑‑Plaintiffs did not have any prima facie case as the suit‑land belonged to Provincial Government‑‑‑Balance of convenience was also not in favour of the plaintiffs who were admittedly not in possession at the relevant time and had also claimed mesne profits‑‑‑Defendants who were in possession of the land .would be put to more inconvenience in the event if they were denied enjoyment and/or utilization of the land if the injunction was allowed‑‑‑No irreparable loss would be caused to the plaintiffs in circumstances as the plaintiffs were not in possession, therefore, question of irreparable loss did not arise‑‑‑Defendants after being leased out the land, had started raising construction of a multi‑storeys building and restraining order would put them to huge monetary losses as costs of construction would increase, besides the fact that the persons who had approached the defendants for booking apartments etc.. might drag them to different forums for damages‑‑‑Loss and inconvenience that might be caused to the defendants, in such eventuality, would be much snore‑‑‑Since the plaintiffs themselves had the plaint registered under S.52 of the Transfer of Property Act, 1882, therefore, the corpus of the suit would remain intact as registration of such kind was in nature of public notice‑‑‑Persons who purchased the suit property during pendency of the suit would be bound by the judgment and decree that would be passed by the Trial Court after recording of the evidence and the construction undertaken by the defendants would be at their own risk‑‑‑High Court declined grant of interim injunction and appeal was dismissed in circumstances.

Syed Sami Ahmed for Appellants.

Khawaja Shamsul Islam for Respondents Nos. l to 4.

Syed Jamil Ahmed for Respondent No.5.

Rasheeduddin Ahmad for Respondent No.6.

Suleman Habibullah. Addl. A.‑G. for Respondents Nos.7 and 8.

Dates of hearing: 12th, 13th and. 14th November, 2002.

P L D 2003 Karachi 230

Before Syed Zawwar Hussain Jafferi and Azizullah M. Memon, JJ

SHAHMORE‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.32 of 2002, decided on 21st November, 2002.

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

(b)

‑‑‑‑Ss. 9(c) & 9(b)‑‑‑Appreciation of evidence‑‑‑Prosecution evidence was unanimous and satisfactory‑‑‑Recovery of 2200 grams of "Charas" from the possession of accused was proved ‑‑‑Technicalities and minor contradictions in evidence in such cases were to be ignored arid the Court had to consider the entire material\on record as a whole‑‑‑Recovered "Charas" being in the form of strips, the .recovery official was duty bound to take out sample from each and every strip for sending the same to the Chemical Examiner which was not done and the accused thus would be liable for being in possession only of 200 grams of "Charas" sent to Chemical Examiner whose report in that regard was positive‑‑‑Conviction of accused under S.9(c) of the Control of Narcotic Substances Act, 1997, was altered to S.9(b) of the said Act in circumstances and his sentence was substantially reduced accordingly.

1993 SCMR 785; 2001 PCr.LJ 2027 and 2002 PCr.LJ 1810 ref.

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

‑‑‑‑S. 9‑‑‑Safe dispensation of criminal justice‑‑‑Requirement‑‑‑Where the entire quantity of the narcotic substance is not recovered or secured in bulk, but the recovery thereof comprises of strips or pieces, then the recovery official would always be duty bound to take out sample from each and every such strip or piece for referring the same to the Chemical Examiner to arrive at a safe conclusion that all such strips or pieces actually comprised of narcotic substances and to exclude all possibilities of doubt that none of them was riot of narcotic substance.

Habibullah Shaikh for Appellant.

Ali Azhar Tunio. Asstt. A.‑G., Sindh for the State.

Date of hearing, 14th November, 2002.

P L D 2003 Karachi 235

Before Ghulam Nabi Soomro and Muhammad Moosa K. Leghari, JJ

MAQSOOD AHMAD SIDDIQI‑‑‑Appellant

versus

NISAR AHMAD and 2 others‑‑‑Respondents

High Court Appeal No.57 of 2002, decided on 12th April, 2002.

Law Reforms Ordinance (XII of 1972)‑‑‑

‑‑‑‑S. 3‑‑‑Civil Procedure Code (V of 1908), S.96 & O. XXXVII, R.2‑‑­High Court Appeal against interlocutory order passed by High Court in first appeal under S.96, C.P.C.‑‑‑Maintainability‑‑‑Suit‑.had been filed before District Judge in its original jurisdiction under O.XXXVII, C.P.C. for recovery of amount‑‑‑First appeal preferred under S.96, C.P.C., before High Court was simple civil appeal being dealt with in exercise of civil appellate jurisdiction‑‑‑High Court Appeal provided under, in the present case, S.3 of Law Reforms Ordinance, 1972 was only against‑an order passed by Single Bench dealing with suits in exercise of original civil jurisdiction‑‑‑Law did not permit High Court Appeal against an interlocutory order or a final order passed in civil appeal under S.96, C.P.C.‑‑‑High Court Appeal was dismissed in limine with costs of Rs.10,000.

Kh. Sharful Islam for Appellant.

Nemo for Respondents.

Date of hearing: 12th April, 2002.

P L D 2003 Karachi 237

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

SHARIF HAROON‑‑‑Petitioner

versus

PROVINCE OF SINDH through the Secretary to the Government of Sindh, Land Utilization Department and anther‑‑‑Respondents

Constitutional Petition No.D‑1254 of 1994, decided on 19th November, 2002.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 24‑‑‑Resumption of tenancy‑‑‑Natural justice, principles of‑‑­Applicability‑‑‑Provisions of S.24 of the Act are mandatory‑‑‑Order of resumption of tenancy on ground of breach of terms of tenancy could not be passed without giving tenant an opportunity of hearing, and if so passed, same would be a nullity in law.

Sindh Employees Social Security Institution and others v. Dawood Cotton Mills Limited PLD 1977 SC 177 ref.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑

‑‑‑‑Ss. 24, 10(4) & 19‑‑‑Karachi Development Authority Order (5 of 1957), Arts. 92 & 93‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Resumption of tenancy for breach of terms of lease by raising residential buildings on land leased out for cultivation and poultry farming purposes‑‑‑Plea of petitioner was that he was not provided opportunity of hearing prior to cancellation of lease; and that Government had lost its rights over the land after its acquisition by Karachi Development Authority and then its allotment to petitioner by the Authority on further payments towards allotment‑‑‑Validity‑‑‑No agreement for acquisition of such land by the Development Authority or provision of law applicable thereto had been pointed out‑‑‑No person could be treated as a tenant, unless he had taken possession of land with permission of the Collector‑‑‑Petitioner had been in possession of land since 1964, thus, Karachi Development Authority could not be treated as tenant of Government at any time thereafter‑‑‑Karachi Development Authority had neither acquired such land as owner nor could be treated as tenant of Government in respect thereof‑‑‑Petitioner could not transfer any interest in land without written consent of Commissioner in view of statutory embargo created by S.19 of the Colonization of Government Lands (Punjab) Act, 1912‑‑‑Lease in favour of petitioner could be terminated only after service of mandatory notice under S.24 of the said Act‑‑‑High Court accepted Constitutional petition, declared impugned order to be without lawful Authority and of no legal effect while leaving open to Government to take appropriate action against petitioner for having violated terms of tenancy.

Sindh Employees Social Security Institution and others v. Dawood Cotton Mills Limited PLD 1977 SC 177 ref.

(c) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 10(4)‑‑‑State land, tenant of‑‑‑Condition precedent‑‑‑No person could be treated as tenant, unless he had taken possession of land with permission of Collector.

Muhammad Ali Sayeed for Petitioner.

Abbas Ali, A.A. ‑G. for Respondent No. 1.

Mazaffar Imam for Respondent No.2.

Date of hearing: 19th November, 2002.

P L D 2003 Karachi 243

Before S. Ali Aslam Jafri, J

MUHAMMAD ISMAIL ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1408 of 2002. decided on 25th November. 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), 5.398/394/34‑‑‑Bail‑‑‑Delay of about two hours in lodging the F.I.R. in circumstances of the case was neither inordinate nor unreasonable‑‑‑Specific role had been assigned to accused that he alongwith co‑accused who was duly armed entered in the milk shop of the complainant, demanded money at the point of pistol by putting him in fear of death and co‑accused actually caused. blow on the head of the complainant with the butt of his pistol‑‑‑Accused was named in the F.I.R. and his identity being one of the robbers, prima facie, stood established‑‑‑No reasonable grounds, thus, exited to believe that the accused had not committed the alleged offence which fell within the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Bail was declined to accused in circumstances.

Mehmood Ahmed v. The State 1999 SCMR 127; Nadeem Burney v. The State 1997 MLD 1259; Abdul Malik v. The State NLR 1990 SD 431 and Hamayun v. The State 1998 PCr.L1 150 distinguished.

M. Shaft Muhammadi for Applicant.

Fazlur Rehman Awan, Advocate for A.‑G. for the State.

Date of hearing: 20th November, 2002.

P L D 2003 Karachi 247

Before Shabbir Ahmed and Muhammad Sadiq Laghari, JJ

MUHAMMAD UMAR alias UMRO---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.490 of 1998, decided on 18th October, 2002.

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

----S. 514---Procedure on forfeiture of bond ---When bond is for appearance before a particular Court only that Court can initiate proceedings under S.514, Cr.P.C.

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

----S. 497(5)---Cancellation of bail---Scheme---Court other than High Court or Court of Session can cancel the bail of only that person who was released by it---No such restrictions have been put in respect of the powers of High Court or Sessions Court---Statutory concurrent powers of Sessions Court cannot be taken away by any judicial pronouncement.

Manzoor Ahmed Bhatti v. The State 1985 PCr.LJ 1558; Muhammad Ashraf and others v. The State 1990 MLD 99 and The State v. Pias'Ali PLD 1986 Kar. 355 ref.

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

----S.497(5)---Cancellation of bail---Conditions---Grounds for withdrawal of the concession of bail extended to accused normally were that the bail was granted erroneously applying wrong principles; that the development relating to merits having accrued after the grant of bail had justified its cancellation; that the accused had misused the concession of bail and that the accused had jumped the bail.

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

----Ss. 497(5), 514 & 92---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Cancellation of bail---Reference made to High Court---Accused was admitted to bail by High Court and he had furnished surety in the sum of Rs.1,00,000 with ,P.R. Bond in the like amount to be satisfaction of Trial Court i.e., the Special Court---Accused absconded thereafter and the Special Court had sent the reference to High Court for cancellation of his bail--­Held, High Court and Sessions Court both had concurrent jurisdiction to take decision about the justification for cancellation of bail and their powers were not subject to restrictions---Judicial propriety, however, demanded that Sessions Court being the lower forum would be in a .better position to appreciate the facts and circumstances and pass an order---Where the Trial Court while exercising powers as Sessions Court had directed or effected the arrest a person under S.92 or 514, Cr.P.C. it might amount to cancellation of bail if the Court had mentioned it expressly---Position, however, would be different if the arrest had been ordered or effected by the Court having no power to cancel the bail---Reference for 'cancellation of bail in such circumstances had to be made essentially to the forum competent to pass such orders---Special Court being competent to exercise powers of Sessions Judge under S.497, Cr.P.C. and the powers of Trial Court under Ss.514 & 92. Cr.P.C. was not required to make the reference---Reference was disposed of with the said observations.

Manzoor Ahmed Bhatti v. The State 1985 PCr.LJ 1558; Muhammad Ashraf and others v. The State 1990 MLD 99; The State v. Pias Ali PLD 1986 Kar. 355 and Abdul Sattar v. Muhammad Yaqoob and others 1970 SCMR 786 ref.

Arshad Lodhi, Asstt. A.-G.

P L D 2003 Karachi 253

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

Messrs GERRY'S INTERNATIONAL (PVT.) LTD. Through Managing Director---Appellant

Versus

Messrs QATAR AIRWAYS through Area Manager---Respondent

High Court Appeal No.226 of 2002, decided on 22nd November, 2002.

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

----O. XII, R. 6 & O.VIII, Rr.3 & 5---Judgment on admission ­of a fact in written statement could not be construed as admission and that two to be equated as "unequivocal" "clear" and "unambiguous".

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

---O. XII. R.6 & O.VIII. Rr. 3, 4 & 5---Judgment on admission---Suit for settlement of accounts by Airline Company against its Sales Agent---Plaintiff alleged in the plaint that statement of accounts issued by defendant showing amount of sale proceeds of airline tickets was annexed therewith---High Court considering reply in written statement as evasive partly decreed the suit to the extent of amount shown in such statement---Validity---Defendant in written statement had denied plaintiff's claim---Non-commenting upon such statement of account in written statement would not constitute admission of defendant nor any inference of the nature could be drawn to believe something for which law required proof through leading evidence by parties nor same could be treated as admission of liability by defendant--­Both parties had filed suits against each other and accounts were yet to be settled---Such statement, in circumstances, having come from custody of defendant, even though not specifically disputed, would not constitute an admission.

Macdonald Layton & Company Pakistan Ltd. v. Uzin Export-­Import Foreign Trade Co. 1996 SCMR 696 ref.

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

----O. XII, R.6 & O.VIII, Rr. 3, 4, 5---Judgment on admission---Non-denial of a document in written statement would not amount to admission of liability of claim, which otherwise required settlement through documentary evidence.

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

----O. XII. R.6---Judgment on admission---Essential condition Admission of a party should not merely be confined to the figure claimed, but should also include liability to pay.

Kazim Hasan for Appellant.

Zahid F. Ebrahim for Respondent.

Date of hearing: 22nd November, 2002.

P L D 2003 Karachi 260

Before Shabbir Ahmed and Muhammad Sadiq Laghari, JJ

SIKANDAR ALI alias SIKOO SHAIKH --- Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous No.287 of 2001, decided on 4th December, 2002.

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

----Ss. 35 & 397---Sentences when to be- concurrent---Exceptional cases--­Main criterion for identification of exceptional ' cases for ordering the sentences to run concurrently can be the close or intimate connection between the previous and subsequent offences.

Vijaya Cooperative M.P. Society Ltd. v. Sangat Ram and another AIR 1965 Him. Pra. 21 and N.N. Burjorjee v. Emperor AIR 1935 Rang. 456 ref.

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

----S. 365-A/34---West Pakistan Arms Ordinance (XX of 1965), S.13-D--­Criminal Procedure Code (V of 1898), Ss.35, 397 & 561-A---Sentences sought to run concurrently---Accused had been convicted for three independent offences of kidnapping the citizens for ransom and one of possessing unlicensed weapon---All these offences were committed at different places and different times and being unconnected and independent of each other were tried separately---Section 397, Cr.P.C. was applicable to such cases which could not be said to be exceptional calling for an order making all the sentences to run concurrently---Not recording any such order would mean that the Trial Court did not intend to order the sentences to run concurrently in view of the nature of the cases against the accused---High Court while reducing the death sentence of accused to imprisonment for life in one case also did not consider it fit for directing the sentences to run concurrently---Even otherwise after dismissal of appeal in two cases with modification of sentence in the third case by High Court, the judgments had attained finality under S.369. Cr.P.C. and fresh direction for the sentences to run concurrently in exercise of powers under S.561-A, Cr.P.C. would amount to alteration and review or modification of the appellate judgment of High Court which was not permissible- --Prayer made by accused for directing the sentence to run concurrently was not acceptable- --Petition was dismissed accordingly.

Muhammad Paryal v. The State C. P. No. D-1305 of 1992; Nazir Ahmed Solangi v. The State Cr.M.A. No.344 of 1998; Ali Muhammad and others v. The State 1981 PCr.LJ 470; Jainta Kumar Banerjee v. The State AIR 1955 Cal. 632 and Muhammad Khan's case PLD 1986 Lah. 294; Vijaya Cooperative M.P. Society Ltd. v. Sangat Ram and another AIR 1965 Him. Prad. 21 and N.N. Burjorjee v. Emperor AIR 1935 Rang. 456 ref.

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

----Ss. 35 & 397---Object of Ss.35 & 397, Cr.P.C.---Object of Ss.35 & 397, Cr.P.C. is to increase the period of punishment which the Court can inflict--­If on recording conviction the Court does not specify under any of the two sections that the sentences will run concurrently, the same are surely to run consecutively.

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

----S. 369---Court not to alter judgment---Any fresh direction for concurrent running of sentences would amount to alteration and review of the judgment not permissible under S.369, Cr.P.C.

Muhammad Khan's case PLD 1986 Lah. 294 ref.

Abdul Ghafoor Mangi for Applicant.

Arshad Lodhi, A. A.-G. for the State.

Date of hearing: 13th November, 2002.

P L D 2003 Karachi 266

Before Wahid Bux Brohi and Rahmat H. Jafferi, JJ

ISLAM-UD-DIN SHAIKH---Appellant

Versus

THE STATE- Respondent

Criminal Accountability Appeals Nos. 42, 43 and 44 of 2001 and Miscellaneous Applications Nos.1214, 1216 and 1218 of 2002, decided on 26th November, 2002.

Criminal Procedure Code (V of 1898)---

----Ss. 426 & 561-A---National Accountability Bureau Ordinance (XVIII of 1999), S.10---Suspension of sentence---Hearing of main appeals of accused was likely to conclude in the first week of next month which date had been fixed on the choice of his counsel---Case of accused could not-be placed on the same pedestal as that of an undertrial prisoner, whose detention might likely continue for an indefinite period without trial being concluded---Shield of presumption of innocence in favour of accused was not available after his conviction---Accused on humanitarian grounds deserved medical treatment which was not available to him at Sukkur and Larkana and he was directed to be shifted to Karachi for facility of Coronary Angiography and other medical treatment through a Doctor of his choice in the hospital advised by him--­Petitions for suspension of sentence and bail were dismissed accordingly.

Muhammad Saeed Mehdi v. State 2002 SCMR 282; Manzoor Ahmed Wattoo v. State 2000 SCMR 107: Muhammad Yousufullah's case PLD 1995 SC 58 and Zakhim Khan Masood's case 1998 SCMR 1065 ref.

Abdul Hafeez Pirzada for Appellant.

Anwar Tariq, Dy. Prosecutor-General, NAB.

Date of hearing: 26th November, 2002.

P L D 2003 Karachi 270

Before Mushir Alam, J

Miss LILIAN SEN---Appellant

Versus

Mrs. PHYLLIS MERLIN XAVIER ---Respondent

Miscellaneous Appeal No.5 of 2001, decided on 14th October, 2002.

(a) Succession Act (XXXIX of 1925)---

----Preamble, Ss. 4 & 5---Term "succession" ---Meaning.

Succession, though not defined in the Succession Act, 1925 itself, means the devolution of right, title and interest in the property of deceased unto his kindred in accordance with law regulating such devolution and distribution of property.

(b) Words and phrases---

----"Succession"---Meaning.

(c) Words and phrases---

----"Adoption"---Definition.

Black's Law Dictionary. 6th Edn. rel.

(d) Succession Act (XXXIX of 1925)---

----S. 5---Succession to property---Adoption---Adoption neither defined nor recognized under the Succession Act, 1925---Adoption neither under "Islamic Law" nor "Christian Law" creates any kindred relationship between adopted child and adoptive parent---No legal rights or obligations flow from either side, thus, none could be claimed or enforced---Succession to estate of intestate Pakistani is regulated by S.5 of the Succession Act, 1925.

(e) Islamic Law---

----Inheritance---Adopted child---Status.

(f) Succession Act (XXXIX of 1925)---

----Ss. 5 & 23 to 48---Succession to property---Christian succession---Succession to movable and immovable property of any intestate in Pakistan is governed under the laws in Pakistan in terms of S.5 of the Succession Act, 1925--Property in case of Christian succession devolves upon surviving spouses-or upon those who are kindred in ascending or descending order to the intestate.

(g) Succession Act (XXXIX of 1925)---

----Ss. 5, 29 & Sched. I---Succession---Adopted child of Christian parent domiciled in Pakistan---Succession and inheritance rights---Discussed.

Christians domiciled in Pakistan, in matter of inheritance and succession are governed by Succession Act, 1925. Property of intestate Christian devolves upon the spouse or upon those, who are either lineal or collaterally kindred to the deceased in ascending or descending order as set out in Succession Act. Degree of kindred is computed in the manner set out in the Schedule I of the said Act. Adopted child does not find any mention in the category of kindred upon whom property of intestate upon his death may devolve. According to succession laid down under Succession Act, adopted child is not an heir or kindred entitled upon intestacy to inherit the estate of his/her deceased adoptive parent.

Ranbir Karam Singh v. Jogindra Chandra 1940 All. LJR 1; Makhin Than v. Ma Ahma AIR 1934 Rang. 72 and Mst. Inayat Bibi and others v. Issac Nazir Ullah and others PLD 1992 SC 385 ref.

(h) Words and phrases---

----"Canon Law"---Its origin and applicability.

Wharton's Law Lexicon, 4th Edn.; Concise Law Dictionary, 5th and Black's Law Dictionary, (Centennial Edit. 1891-1991 ref.

(i) Code of Canon--

----Canon"--- Enforcement of "Code of Canon" through Court of law---Said Code is Personal Law for Christians in general---Code of Canon is more of a codification of certain regulations framed by holder of high religious office/position under Chirstianity considered to be it conformity with divine law---Code needs authorization of Legislature before the same could be enforced.

Jhamat Jethanand for Appellant.

Ch. Nasir for Respondent.

Date of hearing: 1st April, 2002.

P L D 2003 Karachi 277

Before Muhammad Mujeebullah Siddiqui and Azizullah M. Memon, JJ

MUHAMMAD SHARIF---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.D-59 of 2002, heard on 20th December, 2002.

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

----S.345(6)---Penal Code (XLV of 1860), Ss. 302, 337-H(2), 34 & 338-F---Qatl-e-Amd---Waiver---Compounding of offence---Application under S.345(6), Cr.P.C. was submitted before the Trial Court during trial praying for the acceptance of the compromise between the legal heirs of deceased and the applicant (one of the five accused involved in the murder of the deceased)---Compromise application was signed by the widow and two brothers of the deceased as guardian of minor daughter of the deceased--­Recovery and distribution of Diyat---Principles---If, more than one offenders commit Qatl-e-Amd, then the Diyat shall be distributed equally on the offenders and if recovery of Diyat from one or more offenders is waived then the remaining Diyat shall be paid by the remaining offenders according to their respective shares---Chapter XVI, P.P.C., though contains no provision on the subject, but S.338-F, P.P.C. provides that in the interpretation and application of the provisions of Chap. XVI, P. P. C., and in respect of matters ancillary or, akin thereto, the Court shall be guided by the Holy Qur'an and Sunnah---Recovery and distribution of Diyat was elaborated by the High Court and order passed by tote Trial Court to the effect that applicant should deposit share of minor heir in the entire Diyat, being not in accordance with the law, was set aside.

If more than one offenders commit Qatl-e-Amd, then the Diyat shall be distributed equally on the offenders and if recovery of Diyat from one or more offenders is waived then the remaining Diyat shall be paid by the remaining offenders according to their respective shares.

There is no provision in this regard in Chapter XVI, P.P.C., dealing specifically but, it is provided in section 338-F that in the interpretation and application of the provisions of Chapter XVI, P.P.C. and in respect of matters ancillary or akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. In the absence of any specific provision in P.P.C. for the payment of Diyat by each of the offenders, in case of involvement of more than one offenders in the commission of Qatl-i-Amd and in case of compromise between Wali of the deceased and one of the offenders, the law as contained in Holy Qur'an and Sunnah shall be applied. Since in the present case five persons were named in the F.I.R., four to have committed the actual act of Qatl, while fifth was alleged to have abetted the offence therefore, applicant was required to pay 1/5th of the total Diyat of the deceased. The adult Wali namely widow of deceased forgave her share of Diyat, therefore, the applicant is required to deposit the amount representing share of minor out of 1/5th of the total Diyat.

The order passed by the trial Court to the effect that applicant should deposit share of minor heir in the entire Diyat is not in accordance with the law and is set aside.

Hudood, Qisas, Diyat Wa Tazirat, 2nd Edn., p.315 by Dr. Tanzil-ur-Rehman; Al-Muqhni by Ibn-e-Qadama, Vol.9, p.499; Al-Muhazzab, Vol.2, p.210 and Badai Al-Sanai, Vol.7, p.255 ref.

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

----S. 345(6)---Penal Code (XLV of 1860), Ss.302, 337-H(2), 34 & 305--­Qatl-e-Amd--Waiver or compounding of offence ---Wali---Application under S.345(6), Cr.P.C. was submitted before the Trial Court during the trial praying to accept the compromise between the legal heirs of deceased and the applicant (one of the five accused involved in the murder of the deceased)--­Compromise application was signed by the widow of the deceased and by two brothers of the deceased as guardians of minor daughter of the deceased---Nothing was available on record to show about the Fiqah followed by the heirs of the deceased and it was not shown that the two brothers of the deceased who had signed the compromise as the guardians of the minor daughter of the deceased had entered into any compromise as Wali (heir) of the deceased to the extent of their shares---Effect---High Court by dilating upon the distribution of Diyat money amongst the heirs of the deceased according to both the Fiqhas namely Sunni and Shia, remanded the case to the Trial Court with specified directions to be followed in deciding the issue, keeping in view the provision Ss. 299(e), 305, 323, 330 & 338-F, P.P.C.

In the present case there was nothing on record to show about the Fiqah followed by the heirs of deceased. If deceased and his heirs followed Hanfi Fiqah, then widow and minor daughter were not the only heirs of deceased. According to Hanfi Fiqah if there was any child the wife was to get 1/8th share in the inheritance, while in the case of one daughter only and in the absence of son, the daughter would get 1/2 share and the remaining inheritance would devolve on the residuaries. In the present case two brothers of deceased had signed the compromise application as guardians of minor. However, there was nothing to show that they had entered into any compromise as Wali (heir) of deceased to the extent of their shares. Widow could forego her share to the extent of 1/8 from the Diyat amount payable by applicant. Minor was entitled to 1/2 of the amount of Diyat payable by applicant. The remaining inheritance was the right of brothers of the deceased if father and mother of the deceased were not alive. If father and mother of the deceased were alive then the brothers would be excluded. However, it was a question of fact, which required proper inquiry by the trial Court.

The contention of the applicant that the applicant was required to pay 1/5th share from the entire Diyat of deceased because five persons were named in the F.I. R. was also not tenable. The reason being that, after investigation, four accused persons were found to have committed Qatl of deed and therefore, applicant being one of them was required 1/4th share in the total Diyat of the deceased. Consequent to the above, the case was remanded to Trial Court with following directions:

(1) The trial Court should determine the Wali of the deceased in accordance with the provisions contained in section 305, P.P.C. and ascertain as to who were the heirs of the victim according to his personal/law. An inquiry should be made whether the victim was follower of Sunni Fiqah or Shia Fiqah.

(2) In the light of Fiqah followed by the victim the heirs should be determined keeping in view, that he had left two brothers as well, and in case of Sunni Fiqah the widow and sole daughter were entitled to 1/8 and 1/2 share respectively only in the inheritance and the remaining share was to be inherited by the residuaries; the brothers in the present case, if father and mother were not alive. If father and mother were alive then brothers were to be excluded.

(3) If all the heirs of victim other than minor, including brothers, or in the case of father and mother being alive the parents forego their respective shares in Diyat, then 1/2 share in the amount of Diyat liable to be paid by the applicant shall be got deposited in the Court and invested in some profitable scheme with the direction to pay the investment and profit to the minor after she became adult.

(4) The a cc d was facing trial with three other accused person. He shall be liable to pay 1/4th of the total value of Diyat of deceased as determined by the Court under section 32. P.P.C.

(5) The trial Court shall determine the value of Diyat in the light of the provisions contained in section 323, P.P.C.

Trial Court shall keep in view the provisions contained in sections 299(e), 305, 323, 330 and 338-F, P.P.C.

Sarfraz Khan Jatoi and Habibullah G. Ghouri for Applicant.

Muhammad Bachal Tunio, A.A.-G. for the State.

Date of hearing: 20th December, 2002.

P L D 2003 Karachi 284

Before Zia Perwez, J

Messrs PAKISTAN AGRO FORESTRY CORPORATION LTD. ---Plaintiff

Versus

T.C. PAF PAKISTAN (PVT.) LTD. and others---Defendants

Suit No.836 of 2002, decided on 25th November, 2002.

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

----O. VII, R.10---Return of plaint---Courses open to plaintiff to be adopted after return of plaint elaborated.

After a plaint is returned to plaintiff by Court under Order VII, rule 10, C.P.C., he may adopt any of these courses: (i) he may challenge the order returning the plaint for presentation to proper Court by filing an appeal against such order, or (ii) he may present the same plaint after its return to him to a Court having jurisdiction in the matter, or (iii) he tray amend the plaint by giving up a part of relief or by reducing the valuation, so as to make it cognizable by the Court, which returned the plaint and then present the same to the same Court or amend the plaint and present it before a Court having jurisdiction in the matter, or (iv) he may file a fresh suit in the Court having jurisdiction in the matter.

Hawa Bai v. Abdul Shakoor PLD 1981 Kar. 277 and Abdul Shakoor and others v. Mst. Hawabai and others. 1982 SCMR 867 fol.

(b) Arbitration Act (X of 1940)---

----S. 32---Bar to suit contesting arbitration agreement or award--­Applicability---Mechanism provided in the Arbitration Act has to be adopted for challenging validity of an arbitration agreement or award---Provisions of S.32 of the Arbitration Act would be attracted only in case where existence, effect or validity of an arbitration agreement or award was involved.

(c) Arbitration Act (X of 1940)--

---S. 32---Specific Relief Act (I of 1877), S.54---Bar to suit---Matter already decided by superior Courts---Suit for injunction to restrain defendant from re-agitating the same matter before foreign domestic Tribunal---Maintainability---Proceedings before arbitrator could not be allowed to be carried out to consider the effect of judgment/order of superior Courts by a foreign Tribunal.

Trading Corporation of Pakistan v. Messrs Nidera Handlescompagnie B.V. and another 2001 SCMR 646 ref.

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

----O. VII, R.11(b) & (c)---Rejection of plaint- --Clauses (b) & (c) of O.VII, R.11, C.P.C., not applicable to High Courts.

Mst. Parbha v. Lala Swraj Bhan and others AIR 1935 All. 157 and Amir Chand v. Buti Shah and another AIR 1930 Lah. 195 ref.

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

----S. 54---Civil Procedure Code (V of 1908), S.20, & O.VII, R.10---Suit for injunction to restrain defendant from initiating arbitration---Suit was filed at K after return of plaint initially filed at L---Notice for initiation of arbitration was received by plaintiff at K---Principal/registered office of defendant was at K---Held, suit against defendant could be filed at K.

Karachi Development Authority v. Evacuee Trust Board and others PLD 1984 Kar. 34 and S. Tariq Hussain v. The Estate Officer and another 1988 CLC 473 ref.

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

----S. 54---Civil Procedure Code (V of 1908), S.20 & O.VII, R.10---Suit for injunction to restrain defendant from initiating or continuing any arbitration proceedings in pursuance of contract dated 5-5-1996---Contention of defendant was that suit was barred by time---Validity---Suit had been filed in pursuance of notice dated 23-4-2002 by defendant to plaintiff for invoking arbitration clause in contract---Limitation would start from date of notice of defendant and not from date of contract---Suit, held, not barred by law.

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

----O. XXXIX, Rr. 1 & 2---Temporary injunction, grant or refusal of--­Principles.

The well-settled prin4iples for grant or refusal of temporary injunction are, firstly, whether plaintiff has a prima facie good case, secondly, whether balance of convenience lies in favour of grant of injunction, and thirdly, whether plaintiff would suffer irreparable loss, ifs injunction is refused. These principles are to be applied on the basis of facts and circumstances of each case.

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

----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for injunction to restrain defendant from initiating arbitration---Plaintiff sought interim injunction---Validity---Suit filed by defendant claiming damages arising out of same contract was still pending---If defendant was able to prove its case, he would be suitably compensated for breaches, if any, committed by plaintiff---If parties were allowed to proceed before arbitrator, and ultimately suit of plaintiff was allowed and defendant was restrained from initiating or continuing with arbitration proceedings, then both parties would suffer irreparable loss as huge amount would be incurred on proceedings before arbitrator in foreign country---Proceedings before arbitrator could not be allowed to proceed simultaneously with proceedings of suit filed by defendant as same might result in conflicting judgments---If at any stage, defendant was found entitled to invoke arbitration clause, same could be done without any difficulty---Plaintiff would be exposed to inconvenience, if arbitration proceedings were allowed to proceed and then halted---Application under O. XXXIX, Rr. 1 & 2, C.P.C. was granted and arbitration proceedings were restrained till disposal of suit.

Nathulal Khunilal v. Beharilal Bisheshwerlal AIR 1952 Nag. 65; Awan Industries Ltd. v. Executive Engineer 1992 SCMR 65; Messrs Muhammad Amin-Muhammad Bashir v. Zafar Cotton Ginners PLD 1974 Note 4, at p.30; Messrs Mitsui Bussan Kaisha Ltd. v. Tataram Bhagwandas and another AIR 1924 Sind 146; Sitla Din v. Mohan and another AIR 1937 Oudh 183; Mohindra Supply Co. v. Governor-General-in-Council AIR 1954 Punj. 211; S. Ghous Mohiuddin v. National Refinery Ltd. PLD 1968 Kar. 652; Municipal Board v. P. Electric Supply Co. Ltd. AIR 1958 All. 506; Amir Chand v. Buti Shah and another AIR 1930 Lah. 195; Hirachand Succaram Gandhy and others v. G.I.P. Ry. Co. AIR 1928 Bom. 421; Madhura Krishnamurthy Sastri v. Yerra Ramamurthi and others AIR 1957 And. Pra. 654; In re: All India Groundnut Syndicate Ltd. AIR (32) 1945 Bom. 497; Mst. Hawabai v. Abdul Shakoor and others PLD 1970 Kar. 367; Abdul Shakoor and others v. Mst. Hawabai and others 1982 SCMR 867; Sardaraz Khan and others v. Amirullah Khan and others PLD 1995 Pesh. 86; Salaman Rais v. Maj. (Retd) Shaikh A. Naeem and another 1989 MLD 3550; Hasan Ali & Co. (Pvt.) Ltd. v. Poly Cotton SA and others 1994 CLC 1812; Abdul Karim v. Mirza Bashir Ahmed PLD 1974 SC 61; Muhammad Hussain v. Akbar Hussain 1995 SCMR 73; Trading Corporation of Pakistan v. Messrs Nidera Handlescompagnie B.V: and another 2001 SCMR 646; Afaq Ahmed Ansari v. Zamir Hasan Ansari and another PLD 1955 Sindh 282; Gulf Iran Co. and another v. Pakistan Refinery Ltd. and others PLD 1976 Kar. 1060; Mst. Parbha v. Lala Swraj Bhan and others AIR 1935 All. 157; Karachi Development Authority v. Evacuee Trust Board and others PLD 1984 Kar. 34; S. Tariq Hussain v. The Estate Officer and another 1988 CLC 473; Abdul Rahim v. Karachi Development Authority 1988 CLC 1207; Brady & Co. Pakistan Limited v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494; WAPDA and others v. Mian Ghulam Bari PLD 1991 SC 780; Miss Shah Begum v. Ashraf Ali, Naz PLD 1993 Kar. 151; Hawa Bai v. Abdul Shakoor PLD 1981 Kar. 277: Abdul Shakoor and others v. Mst. Hawabai and others 1982 SCMR 867; Arbitration between Ghulam Ahmad and others PLD 1959 (W.P.) Kar. 43; Mst. Hawabai v. Abdul Shakoor and others PLD 1970 Kar. 367; Gulf Iran Co. and another v. Pakistan Refinery Ltd. and others PLD 1976 Kar. 1060; Euro Distributors Establishment v. Bank of Credit and Commerce International 1982 CLC 2369; Shahzada Muhammad Umer Beg v. Sultan Mehmood Khan and another PLD 1970 Kar. 139; Trading Corporation of Pakistan v. Messrs Nidera Handlescompagnie B.V. and another 2001 SCMR 646; Trading Corporation of Pakistan v. Messrs Nidera Handlescompagnie B.V. and another 1998 CLC 1610; Chaudhry Rasheed Ahmed v. Muhammad Akbar Samoon and others PLD 1997 Kar. 262 and Century Link Development Corporation v. Habib Bank Limited PLD 2000 Kar. 269 ref.

Mansoorul Arifin for Plaintiff.

Samiuddin Sami with Mamnoon Hasan for Defendant No. 1.

Date of hearing: 24th September, 2002.

P L D 2003 Karachi 298

Before Ghulam Nabi Soomro, J

MUSLIM-UR-REHMAN alias NANG and another---Applicants

Versus

THE STATE---respondent

Criminal Bail Application No.593 of 2002, decided on 28th November, 2002.

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860), Ss.302 & 392---Bail---Statements of the two prosecution witnesses under S.164, Cr.P.C. exonerating the accused had been recorded after about six months of the incident which did 'not appear to be truthful or genuine---Pressures on the prosecution witnesses was not an uncommon phenomenon---Two other eye-witnesses including the complainant still remained to be examined in the case---Accused had been assigned specific role of committing the murders---Parties were directed to get their compromise application decided by the Trial Court which was pending there and appeared to be in the final stage---Bail was declined to accused in circumstances.

Abdul Rahman Bullo for Applicants.

Sher Muhammad Shar, A.A.-G.

P L D 2003 Karachi 300

Before S. Ali Aslam Jaffri, J

MUSHTAQUE ALI --- Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-627 of 2002, decided on 22nd October, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss.302/504/34---Bail---Accused had sought bail mainly on the ground of statutory delay--­Personal ground of Advocate being unwell or being busy before some other Court, no doubt, could be considered to be a valid ground for adjournment but the repeated return of the witnesses from Court without being examined might seriously affect the prosecution, because on the next date possibly for one or the other reason witnesses, who had appeared, might not attend and in such event the accused or his counsel were bound to face entire risk for non-conclusion of the trial---Case of accused, therefore, was not fit for exercise of discretion in his favour and to grant him bail---Bail application was dismissed accordingly.

Hassan v. State PLD 1996 Kar. 487 ref.

Abdur Rashid v. State 1998 SCMR 897 fol.

Muhammad Daud Baloch for Applicant.

Ali Azhar Tunio, A.A.-G. for the State.

Date of hearing: 22nd October, 2002.

P L D 2003 Karachi 303

Before Muhammad Sadiq Laghari, J

MUBARAK ALI and others---Applicants

Versus

ALI MUHAMMAD and others---Respondents

Revision Application No. 168 of 1987, decided on 4th February, 2003.

(a) Sindh Irrigation Act, 1879---

----S.91---Specific Relief Act (I of 1877), Ss.42 & 54---Transfer of land from one watercourse to another---Suit for declaration and permanent injunction---Defendant who had his agricultural land settled on watercourse Nos. 17-R and 19-R got his land transferred to watercourse No. 18-R by order of Executive Engineer on basis of alleged consent statement purported to have been signed by the owners of watercourse No. 18-R---Application by plaintiffs before Deputy Commissioner against such transfer was dismissed being not maintainable---Plaintiffs, after dismissal of application, filed suit for declaration and permanent injunction pleading therein that alleged consent statement was forged and fabricated and orders passed by Executive Engineer and Deputy Commissioner on basis of said consent statement were void, mala fide, illegal and without jurisdiction---Suit was decreed by the Trial Court, but Appellate Court set aside judgment and decree by, Trial Court---Validity---Alleged consent statement on basis of which land was transferred did not fulfil requirements of S.91(1)&(2) of Sindh Irrigation Act. 1879 and could not be treated as legal---Executive Engineer could sanction change of peach/watercourse only after consent of all Khatedars of watercourse No. 18-R---Since many of Khatedars including plaintiffs were neither put to notice of proposed change nor did they consent to the same, order of Executive Engineer sanctioning change of watercourse, was without jurisdiction and void---Appellate Court had acted illegally by ignoring entire material on record---Judgment and decree passed by Appellate Court were set aside in revision by High Court.

(b) Limitation----

----Bar of limitation, applicability of---Ordinarily bar of limitation would not apply against the suit challenging the order which was void and without jurisdiction.

Faiz Muhammad G. Soomro for Applicants.

Qazi Munawar Ali for Respondent No. 1.

Nemo for Respondents Nos. 2 to 4.

Date of hearing ; 4th February, 2003.

P L D 2003 Karachi 309

Before Muhammad Roshan Essani and Zia Pervaiz, JJ

Rana MUHAMMAD FAROOQUE and others---Petitioners

Versus

AFTAB HUSSAIN and others---Respondents

Constitutional Petition No. D-32 of 2003, decided on 11th March, 2003.

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

----Ss. 154 & 156---First Information Report, recording of---Investigation into cognizable case ---Procedure---Incharge of a police station upon receipt of information relating to commission of a cognizable offence orally or in writing is required to incorporate the same in a prescribed book and S.156, Cr.P.C. postulates that the Officer Incharge of Police Station may, without the order of the Magistrate, investigate any cognizable offence--­Investigation, thus, can commence after the registration of the F.I.R.--­Object of investigation is collection of evidence.

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

----S.156---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Police investigation---Interference by High Court---Scope---High Court has no power to interfere with the police investigation and assume the role of investigator.

Shehnaz Begum v. Hon'ble Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677; Shoukat Ali Dogar and others v. Ghulam Qassim Khan Khakwani and others PLD 1994 SC 281; Brig. (Retd.) Imtiaz Ahmed v. Government of Pakistan and others 1994 SCMR 2142 and Ahmed Saleem v. Muhammad Amin 1998 PCr.LJ 170 ref.

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

----S. 156---Constitution of Pakistan (1973), Art.199---Constitutional petition---Police investigation---Control or supervision by the High Court--­Scope---High Court has no power of supervision or control over investigation agencies, which power is vested in the High Court in respect of Courts subordinate to it---Conduct and manner of investigation is not to be scrutinized under Constitutional jurisdiction which might amount to interference in police investigation as the same could not be substituted by the Court.

Ahmed Saleem v. Muhammad Amin 1998 PCr.LJ 170 ref.

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

----Ss. 154 & 156---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R. during investigation---Validity---Quashing of F.I.R. during investigation tantamounts to throttling the investigation, which is not permissible in law.

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

----Ss. 169 & 156---Release of accused by the Magistrate when evidence is deficient---Scope---If Investigating Officer, after investigation of a case comes to a conclusion that the evidence against the accused is deficient, Magistrate, who is competent to 'take the cognizance, can order for the release of accused upon such report submitted by Investigating Officer---If, however, report of Investigating Officer is mala fide and contrary to evidence collected during the course, of investigation which makes out a prima facie case, the Magistrate is competent to disagree with the report of Investigating Officer---Magistrate is not supposed to act on police report in a mechanical manner and rubber stamp every action of the Investigating Officer---Magistrate is required to act judicially---Such order of the Magistrate although is an administrative order but it is his duty to examine the correctness of the report submitted by the Investigating Officer.

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

----Ss. 169 & 156---Constitution of Pakistan (1973), Art. 199---Constituional petition---Release of accused by the Magistrate when evidence is deficient---Interference by High Court---Scope---Such order of the Magistrate is not amenable to the revisional jurisdiction of High Court, but due to lack of moral values and growing tendency of the abuse of power and lack of accountability, High Court is competent under its Constitutional jurisdiction to rectify the wrong in order to impart justice.

Muhammad Sharif and others v, The State 1997 SCMR 304: Arif Ali Khan and another v. The State and others 1993 SCMR 187 and Bahadur and another v. The State PLD 1985 SC 62 ref.

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

----Ss. 169 & 156---Penal Code (XLV of 1860), Ss. 324, 337-F(i), 504 & 34---Constituion of Pakistan (1973), Art.199---Constitutional petition--­Refusal by Magistrate to cancel the case registered against the accused under Ss.324, 337-F(i), 504 & 34, P.P.C.---Validity---Case registered under S.324, P.P.C. was ordinarily triable by the Sessions Court, Magistrate, in circumstances, had rightly refused to cancel the case as the Magistrate was not supposed to take cognizance of the matter.

Soofi Abdul Qadir v. The State 2000 PCr.LJ 520 ref.

Nisar Ahmed Rana for Petitioners.

Talib Hussain Arain for Respondent No. 1.

Masood A. Noorani, A.A.-G. for Respondents Nos. 3 to 6.

Date of hearing: 11th March, 2003.

P L D 2003 Karachi 314

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

ARDESHIR COWASJEE and others‑‑‑Petitioners

Versus

K.B.C.A. and others‑‑‑Respondents

Constitution Petition No.D‑500 of 1998 and High Court Appeal No.347 of 2000, decided on 13th August, 2002.

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

‑‑‑‑Ss. 12(2) & 96‑‑‑Judgment/decree/order, setting aside of‑‑‑Fraud, mis­representation or want of jurisdiction, plea of‑‑‑Person aggrieved or adversely affected by decree‑‑‑Remedies available to such person and mode of exercise thereof dismissed.

Any person, who is adversely affected by a judgment and decree of a Court has the right to‑ file an appeal against the decree as provided by section 96, C.P.C. The person, therefore, has two remedies available to him, which exist side by side. Under section 12(2), C.P.C. the aggrieved person, without filing a separate suit, can impugn the decree on the ground of fraud, misrepresentation or want of jurisdiction by simply filing an application under said section supported by an affidavit. To file such an application, the aggrieved person need not be a party in suit, but he has the right to challenge same, if he is aggrieved or is adversely affected by the judgment, decree or order. The Code has, thus, provided an easy and an inexpensive method of seeking relief without having to pay court‑fee, which would be required in case a suit was to be filed. At the same time any person, who is aggrieved or is adversely affected by a decree also has the right to file an appeal under section 96, C.P.C. Both the remedies are concurrent and one does not It is open to aggrieved party to choose either of the two. The only distinction between the two remedies, in case the person seeking the remedy is not a party in the suit and wants to file an appeal against the decree is that he must show that he is adversely affected by the decree of Trial Court and obtains leave of the Court to appeal.

1984 SCMR 586; 1999 SCMR 1516 and PLD 1969 SC 65 rel.

PLD 1982 SC 150; 1999 MLD 655; PLD 1993 Kar. 548; PLD 1993 Kar 551; 1989 SCMR 918; 1989 SCMR 920; PLD 1975 Lah 515; PLD 1980 Kar. 108; 1996 CLC 654; 1994 SCMR 2163 and 2000 SCMR 1748 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 58‑‑‑Fraud/collusion in obtaining decree or incompetency of Court to deliver same‑‑‑Article .58 of Qanun‑e‑Shahadat, 1984 merits a party to show that such decision was obtained by other party by fraud or collusion or Court acted without competence‑‑‑Article 58 does not lay down a mandate that same must be shown in a separate suit and not by moving the same Court or Appellate Court.

Abdul Majeed v. Abdul Ghafoor Khan PLD 1982 SC 146 fol.

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

‑‑‑‑Arts. 199 & 185‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.58‑‑‑Civil Procedure Code (V of 1908), Ss. 12(2), 96, 100 & 115‑‑‑Fraud/collusion in obtaining decree or incompetency of Court to deliver same‑‑‑High Court or Supreme Court in view of peculiar circumstances of a given case after re­opening the same may make such observations, which would enable the lower Court to deal with relevant questions requiring further examination in a proper trial including that of nullity.

Abdul Majeed v. Abdul Ghafoor Khan PLD 1982 SC 146 fol.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Disputed questions of fact ‑‑‑Such questions could not be decided in Constitutional petition filed under Art.199 of the Constitution.

(e) Partnership Act (IX of 1932)‑‑‑

‑‑‑‑S. 69‑‑‑Suit by unregistered firm‑‑‑Maintainability‑‑‑Unregistered partnership was not a legal entity, thus, could not sue in its own name‑‑‑All partners of unregistered partnership would be made as plaintiffs in order to remove legal lacuna pertaining to maintainability of suit.

1994 PTD 194 and 1996 CLC 1205 rel.

Naimur Rehman and Ms. Rizwana Ismail for Petitioners. (in C.P. No.D‑500 of 1998).

Amir Hani Muslim for Respondent No.1 (in C.P. No.D‑500 of 1998).

Rasheeduddin for KBCA (in C.P. No.D‑500 of 1998).

Nazar Hussain Dhoon for KDA (in C.P. No. D‑500 of 1998).

Zia Makhdoom for Respondent No. 12 (in C .P. No. D‑500 of 1998).

Nadeem Azhar Siddiqui for Respondents Nos. 17 and 21 to 24 (in C. P. No. D‑500 of 1998).

Suleman Habibullah, A.A.‑G. (in C.P. No.D‑500 of 1998).

Naimur Rehman with Ms. Rizwana Ismail for Appellants (in HCA No.347 of 2000).

Amir Hani Muslim for Respondent No. 1 (in HCA No.347 of 2000).

Raja Sikandar Khan Yasir for KBCA (in HCA No.347 of 2000).

P L D 2003 Karachi 332

Before Azizullah M. Memon, J

MUNEER AHMED --- Applicant

Versus

Chaudhary ILTAF HUSSAIN and another---Respondents

Criminal Miscellaneous Application No.S-256 of 2001, decided on 30th October, 2002.

(a) Precedent---

---- Each criminal case has to be decided on its own peculiar facts and circumstances---Precedent in one criminal case has hardly any bearing on the other criminal case.

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

----S. 497(5)---Penal Code (XLV of 1860), S.302---Cancellation of bail--­Surrender by the- accused before the Trial Court appeared to be a managed affair inasmuch as he had remained fugitive from the law for a very long period without intimation to the Trial Court and he was granted bail immediately on filing of the bail application before the Sessions Court--­Conduct and behaviour of the accused indicated that he had no intention to surrender and had been looking for circumstances to be in his favour arrange for surrender before the Trial Court---Had the accused been having the least possible respect and regard for the process of law or the Courts, he would have surrendered before the Trial Court long before---Accused alongwith his co-accused had gone to the deceased at the instigation of the accused with a clear direction to kill him---Deceased had been tired at by none else but by the son of the accused ---Abscondence of accused had also disentitled him to grant of bail---Impugned order passed by Sessions Court granting bail to accused was not based on sound principles of law---Bail allowed to accused was recalled accordingly.

Liaqat Ali v. The State 1996 PCr.LJ 833; Muhammad Ishaque v. Chanzaib and another 1996 PCr.LJ 845; Mehar Ghulam Nabi v. Muhammad Shareef and another 1979 SCMR 479; 1995 PCr.LJ 1316; 2001 PCr.LJ 1125; 1983 SCMR 124; 1991 SCMR 322; 1988 SCMR 918; 2001 PCr.LJ 865; 2001 PCr.LJ 701; 2001 PCr.LJ 1073; 1999 PCr.LJ 616; Muhammad Sadiq v. Sadiq PLD 1985 SC 182; Irshad and others v. The State 1996 PCr.LJ 719; PLD 1999 Kar 445; PLD 1985 SC 182; Awal Gul v. Zawar Khan and others Criminal Appeal No. 15-P of 1984 ref.

Syed Mehboob Ali Shah for Applicant.

Gul Bahar Korai for Respondent No. 1.

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

Date of hearing: 22nd October, 2002.

P L D 2003 Karachi 340

Before Azizullah M. Memon, J

HAZOOR BAKHSH---Appellant

Versus

RIAZ ALI ABBASSI and another---Respondents

Criminal Acquittal Appeal No.S-09 of. 2002, decided on 19th November, 2002.

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

----Ss.249-A & 417(2-A)---Penal Code (XLV of 1860), Ss. 161/343/337-A--­Prevention of Corruption Act (II of 1947), S.5(2)---Appeal, against acquittal-­Trial Court despite having recorded a finding about a prima facie case having been made out against the accused by the complainant in his direct complaint, d acquitted the accused under S.249-A, Cr.P.C. without recording any evidence---Trial Court under the special circumstances of the case 'was under a heavy duty to have afforded full opportunity to the complainant to prove his allegations and then to record a finding with proper reasons if the same stood proved or not and to draw a reasonable presumption against the accused by taking into consideration all necessary evidence whether the accused S.D.M. had acted in collusion with the S.H.O. of the police station while issuing the bailable warrant of arrest against the complainant---Burden lay on the accused S.D.M. to prove that he had all along discharged his official duties bona fide without any collusion with any body else in issuing the said warrants---Trial Court had not discussed even a single allegation made by the complainant or even a single document relied upon by him in the impugned order and such a slipshod order had also adversely affected its efficiency---Impugned order of acquittal. was set aside in circumstances and the case was remanded to Trial Court for fresh decision after affording full opportunities to both sides to produce their respective evidence.

1999 PCr.LJ -137; 1993 SCMR 523; 1998 SCMR 1840; 1999 PCr.LJ 921; 1999 MLD 577; 2000 PCr.LJ 1169; 2000 MLD 586; 2000 PCr.LJ 886; 1998 PCr.LJ 1030; Raja Haq Nawaz v. Muhammad Afzal PLD 1965 SC 354; Ikramullah Khan v. Muhammd Yousuf and 2 others 1984 PCr.LJ 354; 2000 PCr-LJ 752; Karachi Electric Supply Corporation v. Naseer Ahmed 1986 PCr.LJ 1684; Shaukat Ali v. Rana Muhammad Ishfaq and others 1992 ALD 243(1); 1999 MLD 2549; Malik Muhammad Ibrahim v. The State 1985 PCr.LJ 929; Muhammad Rafique v. Mst. Nasim Akhtar 1985 MLD 1048 and 1993 PCr.LJ 2380 ref.

(b) Precedents------

----Decision given in a precedent case would be available for reliance only to the specific facts and circumstances of such individual case and it was not necessary that the same may also be applicable to other cases, which may follow under the very same provision of law involved in the subsequent case.

Saifuddin Shah for Applicant.

Dost Muhammad Bullo for the State.

Nizamuddin Brohi, State Counsel for Respondent No.2.

Date of hearing: 12th November, 2002.

P L D 2003 Karachi 349

Before Shabbir Ahmed and Muhammad Sadiq Laghari, JJ

MUHAMMAD AZAM---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 13.7, Criminal Appeal No. 80 and Confirmation Case No.3 of 1999, decided on 19th February, 2003.

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

----S. 302(b)/34---Appreciation of evidence---Eye-witnesses were natural witnesses of the occurrence---Ocular evidence was confirmed by medical evidence, recovery of blood-stained leg of the cot from the place of incident and the motive---Judicial confession of main accused regarding presence of his co-accused at the time of occurrence could be used as a supporting evidence against him---Defence evidence did not affect the prosecution evidence, rather it confirmed the ocular testimony to the extent of its main pact relating to time and place of incident and the-- injuries caused to the deceased by the main accused using leg of the cot---Omission of not showing the said leg of the cot to the accused while recording his statement under S.342. Cr.P.C. was not of much significance---Conviction of accused was confirmed in circumstances---Mitigating circumstance in favour of main accused was available on record in the shape of evidence showing his involvement in crime on account of family honour---Sentence of death of the accused was reduced to imprisonment for life in consequence--­Sentence of co-accused was maintained--- Appeal was disposed of accordingly.

Rama Shankar Singh v. State of West Bengal AIR 1962 SC 1239 and Medical Jurisprudence by Modi, 13th Edn., pp.226, 227 ref.

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

----S. 304---Criminal Procedure Code (V of 1898), Ss. 164 & 364---Proof of Qatl-i-Amd liable to Qisas---Section 304, P.P.C. does not affect the provisions of Ss. 164 & 364, Cr.P.C.---Punishment of Qisas can be based on true and voluntary confession of the offence only before the Court competent to try the same, whereas confession before the Magistrate is to be proved before the Trial Court and that itself cannot become the proof required for awarding the punishment of Qisas.

Mehmood A. Qureshi for Appellant (on State expenses).

Nooruddin Serki for Respondent.

Arshad Lodhi, A.A.-G. for the State.

Dates of hearing: 15th, 17th and 22nd October, 2002.

P L D 2003 Karachi 355

Before Shabbir Ahmed and Azizullah M. Memon, JJ

MUHAMMAD FEROZE---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1 and Confirmation Case No.1 of 1998, decided on 20th February, 2003.

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

----Ss. 302 & 308---Appreciation of evidence---Accused had killed his wife and his son and daughter being his direct descendants as well as "Wall" of the victim, he could be convicted only under S.308, P.P.C. for Qatl-i-Amd not liable to Qisas and not under S.302 P.P.C. as Qisas or Ta'zir--­Conviction and sentence of accused under S.302, P.P.C., therefore, was coram non judice----Evidence of recovery was hearsay and the positive Chemical Report in the absence of blood on the incriminating articles could not connect the same with the crime and had no evidentiary value---Incident appeared' to be an unwitnessed one ---F.I.R. had been lodged after consultation and deliberation with delay---Child witness, the only eye­witness of the occurrence, did not implicate the accused at the earliest opportunity when he disclosed the occurrence to the prosecution witnesses and subsequently at the trial he implicated his own father after remaining in custody and care of the said witnesses---Testimony of the child witness, therefore, could not be made the basis of conviction---Accused was acquitted on benefit of doubt in circumstances.

Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885; Muhammad Ikram v. The State 1999 SCMR 406; Dil Bagh Hussain v. The State 2001 SCMR 232; Abdul Zahir v. State (2000) 21 AC 301; Muhammad Ahmad v. The State 1995 SCMR 127; Abbas Ali Shah v. Emperor AIR 1933 Lah. 667; Sona Miah v. The State PLD 1960 Dacca 396; Sultan and another v. The State PLD 1965 (W.P) Kar. 615; The State v. Mahmood Ashraf Khan and another 1987 PCr.LJ 2144; Sarkar's Law of Evidence, 15th Edn., 1999, p.1959; Dr. Kenny Downing's Profession of Laws of Englander, Cambridge University, 'Outlines of Criminal Law, p.386; Manni v. Emperor AIR 1930 Oudh 406 and Jalwanti Lodhin v. The State AIR 1953 Pat. 246 ref.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art.3---Appreciation of evidence---Child witness---Testimony of a child witness should only be accepted: after great caution and circumspection, because he is most susceptible to tutoring and on account of-fear and inducement he can be made to depose about a thing which he has not seen and once having been tutored he goes on repeating like a parrot what he has been tutored to state---Child witnesses are most dangerous witnesses.

Sona Miah v. The State PLD 1960 Dacca 396; Sultan and another v. The State PLD 1965 (W.P.) Kar. 615; Sarkar's Law of Evidence, 15th Edn.,. 1999, p.1959; Di. Kenny Downing's Profession of Laws of Englander, Cambridge University; Outlines of Criminal Law, p.386; Manni v. Emperor AIR 1930 Oudh 406 and Jalwanti Lodhin v. The State AIR 1953 Pat. 246 ref.

Mahmood A. Qureshi for Appellant.

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

Dates of hearing: 22nd, 28th January; 4th and 14th February, 2003.

P L D 2003 Karachi 369

Before Mushir Alam and Khilji Arif Hussain, JJ

HAQBAHOO CORPORATION---Petitioner

Versus

P.I.A. and others---Respondents

Constitutional Petition No.D-281 and Miscellaneous No.842 of 2003, decided on 16th April. 2003.

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

----Art 199--Constitutional jurisdiction of High Court---Scope--- Enforcement of contractual obligation--Maintainability of Constitutional petition---Conditions---Court cannot shut its eyes if it is established that the manner, the method and the motive of decision of entering or refusing to enter into a contract by an organization controlled by the Government or a local body or any statutory Authority entered into or refused to enter into an agreement just to favour their chosen one, or acted against any Rules including the right of fair opportunity to all as guaranteed by the Constitution---Such an action, if taken, by the said organizations, is open to judicial review on the touchstone of reasonableness, transparency, fairplay and non-discrimination---Duty of such organizations in like matters stressed---Petitioner, in the present. case, had not acquired prescribed experience and was not holding sufficient equipments and was not suitable for pre-qualification as a contractor and out of 22 firms who submitted application, the Committee constituted by the Authorities prequalified only 13 firms and disapproved 9 firms including the petitioner's firm, Authorities, in circumstances, had prima facie, established that while awarding the contract, they had acted fairly, impartially and had not violated any rules and regulations,--Principles.

An obligation arising out of the contract normally cannot be enforced by means of the Constitutional petition, but at the same time Court cannot shut its eyes if it is established that the manner, the method and the motive of decision of entering or refusing to enter into a contract by an organization controlled by the Government or a local bodies or any statutory Authority entered into or refused to enter into an agreement just to favour their chosen one or acted against any rules including rule of fair opportunity to all as guaranteed by the Constitution, then it is open to judicial review on the touchstone of reasonableness, transparency, fairplay and non­discrimination. Every organization, while dealing with the general public, should prefer the interest of the State and of the organization and while doing so should act in a transparent manner so as to build up confidence of the public in such institutions. While dealing with the matters in exercise of writ jurisdiction, Court normally avoids as a rule to investigate disputed questions of fact and to enforce contractual obligations, but at the same time Court expects that the Government organizations should not misuse that since the matter pertains to the contractual obligations the Court cannot look into it, as shield for their act, in discharge of their official functions while dealing with the public. The organization is required to place sufficient material on record to prima facie establish that while discharging their duties as public functionaries they have acted fairly, impartially and strictly in accordance with law.

In the present case, the committee was constituted by the Authorities who after going through all the documents, filed by the respective contractors, who had submitted applications for pie-qualification for the tender came to the conclusion that the petitioners had not acquired sufficient experience and were also not holding sufficient equipment. and were not suitable for pre-qualification as contractor and out of 22 firms who submitted applications, the Committee prequalified 13 firms only and not approved applications of 9 firms including the petitioner's firm.

The Authorities, in circumstances, had prima facie established that while awarding the contract, they had acted fairly, impartially and have not violated any rules and regulations.

The Constitutional petition was liable to be dismissed on another ground that the person/firm, in whose favour contract had been awarded by the Committee had not been joined as a party.

1993 NLR 168 and PLD 1969 SC 223 distinguished.

Shaukat Ali and others v. Government of Pakistan PLD 1997 SC 342 fol.

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

----Art. 199--Constitutional petition---Maintainability---Enforcement of contractual: obligation---Petitioner having failed to implead the person/firm in whose favour the contract in question had been awarded by the respondent allegedly being its chosen one---Constitutional petition was liable to be dismissed on that ground.

Syed Ansar Hussain for Petitioner.

Yawar Faruqui for Respondents.

Date of hearing: 28th March, 2003.

P L D 2003 Karachi 373

Before Khilji Arif Hussain, J

Mst. KALSOOM and 2 others---Plaintiffs

Versus

LIAQAT NATIONAL HOSPITAL through Medical Director or Administrator and 2 others---Defendants

Suit No.886 of 2002, decided on 21st April, 2003.

(a) Fatal Accidents Act (XIII of 1855)---

----S. 1---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for damages under Fatal Accidents Act, 1855---Allegation in the plaint was that the deceased after receiving bullet injury, had died due to the act of negligence of the defendants in refusing to provide medical aid---Application for rejection of plaint by the defendants on the ground that suit as framed under Fatal Accidents Act, 1855 was without "cause of action" and not maintainable in law as the deceased person was not injured by the wrongful act, negligence or default of the defendants and as such no cause of action accrued to the plaintiff to file the suit and plaint was liable to be rejected--­Validity---Rejection of plaint by the Court---Conditions---Term "cause of action" as mentioned in the Act --Meaning and nature---Expression "is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof" occurring in Fatal Accidents Act, 1855---Connotation---Contention that there was no privity of contract between the parties and that the defendants were under no obligation to treat the deceased was repelled with the observation that any hospital legally, morally and ethically could not under any circumstances refuse and or deny to provide emergency medical treatment to a patient, especially if the same was of a graver nature as in the present case---Application for rejection of plaint, was rejected in circumstances---Principles.

The Court can reject the plaint if from the averments made in the plaint, it appears that it does not disclose cause of action and or relief claimed was under valued and plaintiff on being required by Court to correct the valuation, failed to do so and or where the plaint was insufficiently stamped and plaintiff failed to supply requisite stamp paper within the time fixed by the Court and or where the suit appears from the statement of plaint to be barred by any law. The provision of Order VII, Rule 11, C.P.C. is not exhaustive of the circumstances in which plaint can be rejected and in appropriate circumstances Court can look into the defence taken by the defendants.

The defendants filed the application and sought rejection of the plaint only on the ground that the suit as framed under Fatal Accidents Act was without cause of action and not maintainable in law for the reasons that the deceased person wag not injured by the wrongful act, negligence or default of the defendants and as such the defendants' argument was that no cause of action accrued to the plaintiff to file the suit and plaint was liable to be rejected.

The term "cause of action" means a brief fact which will be necessary for the plaintiff to prove to succeed and to have a right of judgment. In order to ascertain whether the plaintiff had disclosed cause of action, only the averments made in the plaint could be looked into and from the same it had to be seen that if the said averments were deemed to be correct then the plaintiffs were entitled for a judgment. In appropriate cases if there was any vagueness in the plaint then Court could ask the plaintiff to amend the plaint, instead of rejecting the plaint, as it was desirable to decide the matter on merits rather than to decide the right on technicalities. In the plaint, plaintiff categorically stated that the deceased after he received bullet injury, due to the act of negligence of the defendants in refusing to provide medical aid died. It was yet to be determined whether in fact the defendants had refused to provide required medical aid and or whether the defendants were under any contractual obligations to provide medical aid to the deceased person which could be decided only after recording the evidence.

Defendants further contended that the words "is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof" indicate that the liability was in respect only of such damages as the deceased could have recovered if he had lived but these cannot be read divorced from their context. These words referred only to the "wrongful act, neglect or default" and all that these words in the first paragraph of section 1 of the Fatal Accidents Act meant was that if the act by which the death was caused was of such a tortuous nature that if the deceased would have been alive, he would have been entitled to recover damages in torts from the wrong doer that the dependants would in the case of his death be able to maintain the action. They did not mean that the wife, husband, parent or child, if any, of the deceased is restricted to claiming only such damages or such loss to which the deceased himself would have been entitled if he had been alive.

The cause of action given to the dependants mentioned in the said Act was a statutory right and was totally different from the cause of action vested in the deceased at the time of his death. The Act does not transfer to the said dependants the right of action which the person killed would have had but gives to them a totally new right of action on different principles.

The words on which reliance had been placed by the defendants only meant that the nature of the cause of action must be such as would have accrued to the deceased himself if he had been alive, i.e. if he had been alive he would have had a valid and enforceable claim, in the circumstances of the case. In other words, if at the time of his death the right of action of the deceased was barred by his contributory negligence, or by virtue of the doctrine of "common employment" or by any special contract, such as passenger's ticket under conditions prohibiting any claim for damages for injury, or by accord and satisfaction, or by the operation of some statutory provision then the persons named in the statute would not also be able to maintain an action.

In all such cases where death caused by negligence, wrongful act or default of medical practitioner during performance of duty which fell within the scope of Fatal Accidents Act, 1855 the suit was maintainable under Fatal Accidents Act.

A plaint even without an application could be, rejected if it appeared that same did not disclose cause of action and or was barred under any law etc.

The contention that there was no privity of contract between the parties and that the defendants were not under obligation to treat deceased it was emphasized by the Court that any hospital legally, morally and ethically could not under any circumstances refuse and or deny to provide emergency medical treatment to a patient, especially if it was of a graver nature as in the present case.

It was the duty of the hospital administration to make certain that those doctors who were directly or remotely related to in the emergency units/casualty, should be trained in a fashion wherein they could deal any kind of emergency cases. Moreover, it was a cardinal duty of a doctor that irrespective of any condition if any put upon him by .the administration, he should go to any length of saving a previous life rather than thinking of legalities and technicalities.

Indeed if the hospital was not well-equipped enough to admit that patient, at least, it should provide the necessary emergency coverage/treatment, so that the patient could be shifted safely and in time to any other hospital.

Time was the most important factor and every second counts when dealing a medical emergency whether a patient with heart attack, road traffic accident or gun shot injury. Time to transport the patient from the accident site to any nearby hospital, time to admit the patient and to provide the emergency treatment and to transfer that patient to another well-equipped hospital for further treatment determines the life and death of that patient.

Sm. Karma Devi v. Sunni Central Board of Waqfs, U.P., Lucknow AIR 1949 All. 448; Charlesworth on Negligence by R.A. Percy; Seward v. Vera Cruz 10 App. Cas. 59 and Mrs. Hajra Begum and 2 others v. Aga Khan University Hospital, Karachi PLD 1995 Kar. 603 ref:

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

----O. VII, R. 11---Rejection of plaint by the Court---Conditions.

(c) Cause of action---

--Meaning.

Nasir Maqsood for Plaintiffs:

Abdus Samad for Defendants Nos. 1 and 2.

Faisal Arab for defendants Nos.3 and 4.

P L D 2003 Karachi 382

Before Sabihuddin Ahmed and Syed Ali Aslam Jaferi, JJ

MUNAWAR ALI, KHAN---Appellant

Versus

MARFANI & CO. LTD. ---Respondent

High Court Appeals Nos.76 to 79 of 1995, heard on 20th August, 2002.

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

----Ss. 14-A & O.XXI, R.23-A---Execution of decree passed by Court in the United Kingdom---Deposit of decretal amount---Objection to the execution--­Furnishing of security by the objector---Necessity---Provisions of O.YXI, R,23-A, C.P.C. do not apply to foreign decrees or judgments sought to be executed under S.44-A, C.P.C.---Mere non-furnishing of security would not bar the entertainment of objections to execution.

Abdul Malik Badaruddin v. Gors Venor Casino Limited PLD 1993 Kar. 449 fol.

(b) Private International Law-----

---Execution of decree passed by the Court in Britain---Foreign judgment, action on---Scope---Action on the basis of a foreign judgment could only be maintained if the defendant in the judgment was a resident or at least physically present in the foreign country at the time of commencement of proceedings or had submitted to or agreed to submit to the jurisdiction of such foreign Court---Mere fact that the cause of action had accrued within the jurisdiction of such Court would not confer competence upon such Court in an International, sense so as to make its judgment recognizable and enforceable---When the question of amenability of a non-resident foreigner to the jurisdiction of the Court of a particular country was involved the matter had to be examined from an International Law perspective.

Sardar Gurdyal Singh v. The Raja of Farid Kot 1894 AC 670 and Emanuel v. Symon (1908) 1 KB 302 fol.

Abdul Malik Badaruddin v. Gors Venor Casino Limited PLD 1993 Kar. 449; Sardar Gurdyal Singh v. The Raja of Farid Kot 1894 AC 670; Swindells and Sons v. Haji Muhammad Abdullah PLD 1957 Kar. 933; Ghulam Ahmed and others v. Dr. Sarosh Rattanji Wadia PLD 1959 Kar. 624; Fazal Ahmed and others v. Abdul Bari and another PLD 1952 Dacca 152; Cheshire and North's Treatise on Private International Law, 13th Edn., p.420 ref.

Brijlal Ramjidas and another v. Govindram Gordhandas Seksaria and others PLD 194-7 PC 150 distinguished.

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

----Ss. 20---Court can exercise jurisdiction if the cause of action has accrued within its limits irrespective of the residence of the defendant---Court has been left with no discretion and is required to entertain a suit even against a non-resident foreigner as long as it can be shown that the cause of action accrued within the territorial jurisdiction of the Court.

Viswanathan v. Abdul Wajid AIR 1963 SC 1 ref.

(d) Private International Law-----

---- Execution of decree passed by a British Court in Pakistan---Objection application on the ground of jurisdictional issue of the British Court--­Validity---Exercise of jurisdiction of British Courts over non-resident foreigners---Scope---British Courts are competent to exercise jurisdiction where a claim is brought to enforce, rescind, dissolve or otherwise affect a contract or to recover damages or obtain any other remedy in respect of breach of contract in cases where a contract was made within the jurisdiction of such Courts or the breach is committed within such jurisdiction--­Statement of claim pertaining to the execution application, in the present case, showed that conditions for competence to exercise the jurisdiction by British Court were satisfied, therefore it could not be contended from the stand point of English Law that the British Court pronouncing the judgment had no jurisdiction to do so---Power of the Court to allow service of motion in foreign countries ought to be exercised with extreme caution.

Cheshire and North's Treatise on Private International Law, 13th Edn., p.420 fol.

Morguard Investment Limited v. De-Saboya (1991) 76 DLR 256 ref.

(e) Private International Law---

---- Service of motion in foreign countries---Power of the Court to allow service of motion in foreign countries ought to be exercised with extreme caution.

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

----Ss.13 & 44-A---Distinction between Ss.13 & 44-A, C.P.C. leads to somewhat anomalous situation that the decree of a Court in United Kingdom which is directly executable as a decree of a District Court in Pakistan may become unexecutable merely because that Court was not considered to possess jurisdiction in an "International" sense notwithstanding the fact that under its own system of laws it had full powers to pass such decree---High Court, observed that Ministry, of Law Government of Pakistan and Pakistan Law Commission to consider the desirability of amending the Civil Procedure Code, 1908 in view of the anomalies pointed out in the judgment.

Under section 13 a foreign judgment is not enforceable per, se but a suit on its basis has to be tiled though it is conclusive with respect to a matter adjudicated upon between the parties subject to six specified exceptions. The first exception being that it will not be conclusive when it has not been passed by a Court of competent jurisdiction and the authorities cited before us show that competence is to be reckoned in an international sense and this exception would become applicable if the defendant was not residing within the territorial jurisdiction of the foreign Court at the time of institution of the action or had not voluntarily submitted to the jurisdiction of such Court. Section 44-A on the other hand stipulates that the decree of superior Court of United Kingdom can be directly executed as if it had been passed by a District Court. Clause, (3) of this section however, stipulates that the Court shall refuse execution if it is shown that it falls within any of the six exceptions contained in section 13. This appears to lead to a somewhat anomalous situation that the decree of a Court in United Kingdom which is directly executable as a decree of a District Court in Pakistan may become unexecutable merely because that Court was not considered to possess jurisdiction in an "international" sense notwithstanding the fact that under its own system of laws it had full powers to pass such decree.

A copy of the present judgment was directed to be forwarded to the Secretary, Ministry of Law Government of Pakistan and Secretary, Pakistan Law Commission to consider the desirability of amending the relevant provisions of C.P.C. in view of the anomalies pointed out.

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

----Ss. 13 & 44-A---Execution of decree passed by Court in the United Kingdom---Decree of the English Court could not be deemed to have been passed by a Court of competent jurisdiction when admittedly the defendants were not residing within the jurisdiction of such Court at the time of institution of the action and foreign judgment was not pronounced by a Court of competent jurisdiction.

Sardar Gurdyal Singh v. The Raja of Farid Kot 1894 AC 670 and Ghulam Ahmed and others v. Dr. Sarosh Rattanji Wadia PLD 1959 Kar. 624 fol.

(h) Jurisdiction---

---- Submission to jurisdiction of -a foreign Court when does not take place--­Principles.

When a defendant appeared before a foreign Court only to protest against assumption of jurisdiction he cannot be assumed to have voluntarily submitted to such jurisdiction. Nevertheless, when he also takes up defences on merits a clear submission can be inferred. Similarly when he applies to have a default judgment set aside and appeals as to merits of the claim such appeal would normally amount to submission to jurisdiction. Nevertheless, if the appeal or application is merely premises upon a jurisdictional issue it would not tie treated as submission.

Muhammad Ali Sayeed for Appellant.

Raja Qureshi for Respondent. .

Dates of hearing: 8th and 20th August, 2002

P L D 2003 Karachi 393

Before Anwar Zaheer Jamali and S. Ali Aslam Jafri, JJ

JAMIL A. DURRANI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.706 of 2002, decided on 14th April, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 369---National Accountability Bureau Ordinance (XVIII of 1999), Ss.9, 18(g) & 24(b)---Second bail application---Bail, grant of--­Previous bail application filed by the accused was rejected by High Court on merits and accused had filed second bail application in view of some fresh grounds and subsequent developments in the case---Provisions of 5.369, Cr.P.C. though were not applicable to the bail application, but there must be some justification for second or successive bail application---In present case certain happenings and developments had taken place after rejection of previous bail application of the accused---Proceedings had already been stayed against the principal. accused by the Trial Court against which State had filed revision before High, Court which was yet to be decided---One of the co-accused was still absconding and other co-accused was on interim pre­ arrest bail which was granted by High Court and proceedings against him had also been stayed---Prima facie a policy of pick and choose had been adopted by National Accountability Bureau Authorities by not including the members of the Cantonment Board as accused who had published tender notice despite there was a ban imposed by tie Government in that respect--­Accused was in jail for the last more than nineteen months and the trial was not within sight in near future---Bail could not be withheld as a punishment and nobody could be kept in jail for indefinite period---Case for grant of bail having been made out, the accused was granted bail.

Abdul Qadir v. Federation of Pakistan and others 2002 SCMR 1478; Muhammad Rafiq alias Rafiq Ahmed Qadir and another v. The State 2002 PCr.LJ 1845 and Gulzar Hussain Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335 ref.

Khalid Anwar for Applicant.

M. Anwar Tariq, Deputy Prosecutor-General, Accountability for NAB.

Date of hearing: 31st March, 2003.

P L D 2003 Karachi 398

Before Anwar Zaheer Jamali and Gulzar Ahmed, JJ

MUHAMMAD USMAN FAROOQUI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Accountability Appeals Nos. 17 and 18 of 2001 and Miscellaneous Application Nos.781 of 2001 and 2541 of 2002, decided on 10th April, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.382‑B, 397, 426 & 561‑A‑‑‑Penal Code (XLV of 1860), Ss.409/109‑‑­National Accountability Bureau Ordinance (XVIII of 1999), Ss. 18 & 32(b)‑‑­Application for suspension of sentence‑‑‑Reference to Accountability Court-‑‑Appeal‑‑‑Limitation‑‑‑Accused was tried in three references by Accountability Court and in first two references was awarded sentence to suffer. R.I. for seven years with fine' in each reference while in third reference he was convicted and awarded sentence to suffer R.I. for twelve years and tine‑‑‑Accused was arrested on 5‑9‑1996 and benefit of S.382‑B, Cr.P.C. had separately been extended to the accused in all the three cases‑‑­Report received from Jail Authorities showed that actual period spent in jail by the accused in each case was 6 years, 5 months, 10 days‑‑‑Even if substantive sentence awarded to the accused in first two references were allowed to run consecutively in terms of S.397, Cr.P.C. then as per report of Jail Authorities, the accused already not only had served substantive sentences awarded to him, but over and above he had still more than ten years period to his credit which could be deducted from the substantive sentence of twelve years awarded to him in third reference‑‑‑If only the remission earned by the accused after his first conviction or marginal, portion of total remission earned by the accused was to be taken into consideration, even then it could be evident that the accused had already served substantive sentence of seven years' R.I. in each case‑‑‑Besides, by virtue of S.32(b) of National Accountability Bureau Ordinance, 1999 specific period of 30 days had been prescribed for disposal of appeals filed by the accused, but for no fault of the accused said appeals were still pending for disposal for almost the past two years‑‑‑For said delay the accused could not be penalized and incarcerated for an indefinite period‑‑‑Pending appeals, sentences of imprisonment and fine awarded to the accused, were suspended, in circumstances.

Muhammad Mubin Khan v. The State Criminal Miscellaneous Application No.275 of 2001; Abdul Sattar Dero v., The State Criminal Petition No.423 of 2002; Abdul Wahab v. The State Criminal Accountability ­Appeal No. 15 of 2001 and Waryam Fakir v. The State Criminal Accountability Appeal No.98 of 2002 ref.

Aitizaz Ahsan, I.A. Hashmi and Raza Hashmi for Appellant.

Muhammad Anwar Tariq, D.P. G., .NAB for the State.

P L D 2003 Karachi 405

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

AMBER AHMED KHAN---Appellant

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION, KARACHI AIRPORT, KARACHI---Respondent

High Court Appeals Nos.297 and 325 of 1999, decided on 30th August, 2002.

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

----Art.199---Civil Procedure Code (V of 1908), O.XXIII. R.1---Withdrawal of Constitutional petition without permission and subsequently filing civil suit seeking same relief---Effect---Such withdrawal would not preclude plaintiff from seeking relief through ordinary proceedings--- Principles.

Admittedly the Constitutional petition before High Court was eventually withdrawn by the plaintiff and it is not possible to say that upon such withdrawal, the plaintiff stood precluded from seeking relief through ordinary proceedings. Indeed under Order XXIII, Rule 1, C.P.C, a plaintiff cannot file a second suit after withdrawing the first one on the same cause of action, unless permission to do so has been accorded by the Court. Though normally the broad principles and procedural provisions of C.P.C. are applicable to Constitutional petitions, the provisions of Order XXIII, Rule 1. C.P.C., cannot, by the very nature of the jurisdiction under Article 199, apply to cases of withdrawal of a constitutional petition and filing a civil suit subsequently. It needs to be kept in view that a pre-condition for invoking the jurisdiction under Article 199 is the absence of an alternate remedy. If a petitioner, on account of some mistake or misconception, files a Constitutional petition seeking a particular relief and subsequently realizes that an alternate and equally efficacious remedy by way of a civil suit was available the right course for him ought to be to withdraw the petition and file a suit. To insist that he could not do so without obtaining the permission of the Court before whom the petition is filed would amount to ignoring the extraordinary nature of proceedings under Article 199 and defeating the concept of Constitutional remedies.

(b) Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)---

----Art. 9(2)---Matter relating to terms and conditions of service---Complaint before Mohtasib would not be maintainable.

(c) Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)---

----Arts. 11 & 32---Order passed by Mohtasib---Such order could be set aside by the President on application of aggrieved person only through a reasoned order after giving other party a proper opportunity of being heard.

Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2744 fol.

(d) Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)---

----Art. 29---Jurisidction of Courts to question order made or purported to have been made under Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983---Bar against---Scope---Such bar must be confined to order made within four corners of a statute and cannot be extended to those passed in blatant violation of elementary principle of natural justice.

Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2744 and Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi PLD 1965 SC 698 fol.

(e) Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)---

----Arts. 9, 11 & 29---Civil Procedure Code (V of 1908), S.9---Matter being or having been investigated by Mohtasib---Jurisdiction of Civil Court to entertain suit or legal proceedings in respect of such matter---Not barred--­Principles.

Under Articles 9 and 11 of the Order, the Mohtasib may entertain a complaint by an aggrieved person alleging maladministration and is empowered to make recommendations for implementation. There is no provision barring an aggrieved person from approaching a Court of law for redress in case he is unable to obtain the same under the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order. A Court unlike the Mohtasib is required to entertain a suit provided it is maintainable and can pass an enforceable decree while the Mohtasib can make recommendations for implementations. Mohtasib does not have jurisdiction to investigate or enquire into matter which is sub judice before a Court under Article 9 but there is no corresponding provision in the Order or any other law barring a Court from entertaining a suit or legal proceedings in a matter being or having been investigated by the Mohtasib.

(f) Aviation Personnel Accident Insurance Policy---

---- Death or disability of personnel due to accident---Liability of Aviation Authority to pay compensation---Scope---Authority would invariably be bound to pay compensation at the rate of three years gross salary or allowance, though actual payment could be made after settlement of claim under Insurance Policy---Obligation to take out an insurance policy would be that of the Authority---Authority could not be allowed to resile from its commitment by failure to pay requisite amount of premium for meeting its obligation or by not paying any premium at all.

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

----Ss. 15 & 16---Qanun-e-Shahadat (10 of 1984); Art.119---Coercion and undue influence---Burden to prove lies on person alleging the same.

(h) Contract Act (IX of 1872)--­--

----S. 16----Undue influence---Illustrations—Transactions between parties enjoying unequal bargaining position would be viewed with suspicion and undue influence could be inferred from such circumstances---Undue influence would be inferred, when benefit was such that taker had no right to demand either in law or equity and grantor had no rational motive to give--­Undue influence could be inferred on the basis of capacity of a person to influence the decision of another and not his presence or absence at the time of decision.

D & C Builders Limited v. Ress (1965) 3 AEL 837; Hamida Begum v. Murad Begum PLD 1975 SC 624; Rasheed Ahmed Khan v. President of Pakistan PLD 1994 SC 36 and Abdul Rahim v. United Bank PLD 1997 Kar. 62 fol.

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

----S. 34---Contract Act (IX of 1872), Ss.73 & 74---Damages or compensation to be determined by Court---Scope---Interest and profit or mark-up on such amount could not be granted by Court in absence of prior agreement.

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

----Ss. 73 & 74---Civil Procedure Code (V of 1908), S.34---Recovery of money payable under contract---Entitlement to interest or mark-up---Plaintiff not claiming compensation for an injury or breach of contract arising in tort or contract---Plaintiff only seeking recovery of money under provisions of the contract---Such plaintiff would be entitled to mark-up at the rate of simple interest notified by State Bank of Pakistan from date of filing of suit till final payment.

1980 SCMR 481; Kayumarz v. Mohammadi Tramway Company PLD 1968 Kan 376 and N.A. Shahriyar v. Conforce Limited 1979 CLC 740 ref.

Khalid Javed for Appellant (in H.C.A. No.297 of 1999) and for Respondent (in H.C.A. No.325 of 1999).

Syed Amjad Hussain for Respondents (in H.C.A. No.297 of 1999) and for Appellant (in H.C.A. No.325 of 1999).

Date of hearing; 7th August, 2002.

P L D 2003 Karachi 416

Before Wahid Bux Brohi and Muhammad Mujeebullah Siddiqui, JJ

INAYATULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-36 of 2003, decided on 27th March, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/148/149---Bail, grant of---Further inquiry---Main accused had been acquitted of the charge and guilt of accused who had been implicated on account of his vicarious liability, would call for further enquiry ---Abscondence of accused by itself would not be sufficient to withhold concession of bail, particularly when in similar circumstances co-accused, had been granted bail---Accused was admitted to, bail, in circumstances.

Aftab Ahmed Gorar for Applicant.

Ali Azhar Tunio, Asstt. A.-G. for the State.

Date of hearing; 27th March, 2003.

P L D 2003 Karachi 417

Before Sarmad Jalal Osmany and Rehmat Hussain Jafferi, JJ

AKBAR JAWED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1190 of 2002, decided on 12th October, 2002.

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

----S. 497---Bail, grant of---Principle---Deeper appreciation of evidence was not permissible at bail stage, but a tentative assessment of the evidence could be made in order to see whether prima facie case had been made out against the accused or not.

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

----S. 497---Penal Code (XLV of 1860), Ss.409/468/471/477-A/34--­Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Accused was named in the F.I.R.---Extra judicial confession of the complainant in his additional statement had given further details with regard to involvement of accused in the case wherein it was stated that accused had admitted his guilt before him and several other witnesses---Tentative assessment of evidence on record, prima facie showed the case against accused---legal contract was between the Bank and its employees to discharge the trust reposed in them honestly and fairly and according to law---If accused who was employee of the Bank, was allowed to violate such trust then entire Banking system would collapse---Stringent steps were required to be taken to deal with offences of Banking---Accused was not entitled to concession of bail.

Iqtidar Ali Hashmi for Applicant.

Khursheed A. Hashmi, D.A.-G. for the State.

Date of hearing; 24th September, 2002.

P L D 2003 Karachi 420

Before Zahid Kurban Alavi, J

AKI HABARA ELECTRIC CORPORATION (PTV.) LIMITED through Authorized Signatory---Plaintiff

Versus

HYPER MAGNETIC INDUSTRIES (PRIVATE) LIMITED through Chief Executive/Director/Secretary---Defendant

Suit No.81 of 2003, decided on 21st April, 2003.

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

----O. VII, R. 11---Application for rejection of plaint on the ground that the same had not beets filed by a proper person as the alleged power-of-attorney given by the plaintiff, a foreign company, had not been attested and executed before the Pakistan Embassy in the said country and that the Board of Directors had not passed a resolution authorizing the person to institute the suit---Validity---Points raised in the application were disputed facts as proof of foreign law or of any existing agreement had to be brought on record only through evidence---Application under O.VII. R.11, C.P.C. being not maintainable in circumstances was dismissed.

National Bank of Pakistan v. KDA PLD 1999 Kar. 260; N.V. Nutrica v. Messrs Nutrica Foods International (Pvt.) Ltd. and another 2000 CLC 866 and ANZ Grindlays Bank Ltd. v. Saadi Cement Company Limited and 2 others PLD 2001 Kar. 143 ref.

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

----Art. 95---Power-of-attorney---Presumption---Attestation---Deed of power of attorney had been stamped by the First Secretary, High Commissioner of Pakistan in the foreign country; Commissioner for oath of the said country had also attested the same and plaintiff, if called upon, would be in a position to produce the original document---Validity---Presumption was that the document was power-of-attorney and duly executed and authenticated unless shown otherwise---Once the document was attested by the First Secretary of the Embassy of Pakistan, the same would be construed as valid document.

ANZ Grindlays Bank Ltd. v. Saadi Cement Company Limited and 2 others PLD 2001 Kar. 143 and Rashid Khan v. Shujauddin 1986 MLD 2930 ref.

Moeen Qamar for Plaintiff.

Muhammad Zahid Khan for Defendant.

P L D 2003 Karachi 423

Before Wahid Bux Brohi and Muhammad Moosa K. Laghari, JJ

RAMESH M. UDESHI---Appellant

Versus

THE STATE---Respondent

Criminal Accountability Appeal No. 14 of 2000, decided on 22nd February, 2003.

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

----Ss. 9, 10 & 32---Corruption and corrupt practices-Appreciation of evidence---Accountability Court had convicted accused under S. 10 of National Accountability Ordinance, 1999 on allegation that he being Secretary, Board of Revenue, Land Utilization Department, got land In question disposed of in favour of Its beneficiaries at throw-away price causing colossal loss to public exchequer ---Co-accused who were beneficiaries of land in question had requested the Chief Minister for conversion of their leased Barani lands into Agricultural/Residential/Industrial land for a period of 99 years instead of 30 years---Chief Minister allowed the request of co-accused, but on objection of the Finance Department, Chief Minister rejected the said proposal---Accused by concealing relevant paras. in which proposal of disposal of land in question was rejected by the Chief Minister, got land disposed of in favour of the beneficiaries thereof---Accountability Court, in circumstances, had rightly mentioned in its judgment that it was duty of the accused rather his moral duty to point out the relevant paras. and earlier order of rejection of proposal by Chief Minister, but he had concealed all that which on face of it was mala fide act on the part of accused which act, by itself, was sufficient to constitute an act of corrupt practice by accused---Case against accused was based on documentary evidence and Accountability Court had adverted to all points in its judgment and reached at just conclusion that offence under S.9 of National Accountability Ordinance, 1999 punishable under S.10 thereof had been committed by the accused on sound principles---Appeal against judgment of Accountability Court being without merits was dismissed.

Ms. Ismat Mehdi for Appellant.

Muhammad Anwar Tariq, DPG, NAB for the State.

P L D 2003 Karachi 433

Before Muhammad Sadiq Laghari, J

AKHTAR ALI KHAN---Petitioner

Versus

THE STATE--Respondent

Criminal Miscellaneous No.30 of 2003, decided on 25th April, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 561-A---Application for quashing of orders---F. I. R. of applicant was registered against police officials under the orders of High Court passed in Constitutional petition---Allegation in the F.I.R. was that said police officials entered into the house of applicant and after breaking open the door and locks forcibly took away amount and other precious articles and manhandled the family members of the applicant including the ladies---Investigating Officer concluded that F.I.R. lodged by applicant was totally false---Report submitted by Investigating Officer before Judicial Magistrate was sent to the Sessions Judge because offence allegedly committed by the accused was exclusively triable by Sessions Judge and Sessions Judge agreed with the said report---Order of Sessions Judge .had been sought to be quashed---Validity---Magistrate who after receiving report was seized of the matter, could competently assume jurisdiction and pass proper order as it was exclusive authority of the Judicial Magistrate to pass order under S.173(3), Cr.P.C.---Section 173, Cr.P.C. did not provide for sending report of Investigating Officer to the Sessions Judge and did not indicate any role of Sessions Judge on report under S.173, Cr.P.C.---Order passed by Sessions Judge was coram non judice being without jurisdiction---Order of Sessions Judge being not judicial one, was amenable to inherent jurisdiction of High Court under S.561-A, Cr.P.C. in circumstances---Order of Judicial Magistrate whereby report was sent to the Sessions Judge also being without lawful authority, could be quashed by High Court in exercise of its powers under S.561-A, Cr.P.C.---Both orders' were quashed, in circumstances.

Soofia Abdul Qadir v. The State and others 2000 PCr.LJ 520 ref.

Moula Bux Khoso for Petitioner.

Habib-ur-Rasheed for the State.

Date of hearing: 10th April, 2003.

P L D 2003 Karachi 436

Before Zia Perwez, J

Messrs TABBANI CORPORATION‑‑‑Plaintiff

Versus

Mirza GHULAM QUTBUDDIN and others‑‑‑Defendants

Suit No. 1133 of 1996, heard on 4th February, 2002.

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

‑‑‑‑Ss. 9 & 39‑‑‑Suit by tenant, for possession of property under S.9 of Specific Relief Act, 1877‑‑‑Sale of property by defendant‑owner‑‑‑Plaintiff would not be entitled to object to such sale‑‑‑Suit challenging validity of such sale and transfer of property would not be maintainable.

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

‑‑‑‑Ss. 9 & 39‑‑‑Suit by tenant dispossessed from shop by force‑‑‑Defendant (purchaser) later on got himself impleaded as party and produced sale‑deed in his favour and possession note showing handing over possession of shop by tenant‑‑‑Tenant denied execution of any document or handing over possession of shop to any of the defendants, and further prayed for cancellation of documents being fraudulent‑‑‑Contention of defendants was that on account of additional reliefs claimed through amended plaint, the suit had seized to be one under S.9 of Specific Relief Act, 1877‑‑‑Validity‑‑‑Cause of grievance in such suit was execution of alleged document of handing over vacant possession of shop by tenant to landlord‑‑‑Tenant had challenged such document as a fraudulent one‑‑‑Such document pertained to valuable rights of possession of tenant‑‑‑Suit challenging such document on ground of fraud instituted by tenant was maintainable.

M. Ataur Rehman Alvi v. Inamur Rahman 1974 SCMR 54, Azhar Wali and others v. Bell Hellicopter, and others 1987 MLD 1337; Iqrar Muhammad Siddiqi v. Mst. Shahid Zareen PLD 1997 Kar. 409 and Muslim Commercial Bank Limited v. Panama Trading Co. (Pvt.) Ltd. 1998 MLD 1844 distinguished.

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

‑‑‑‑S. 9‑‑‑Civil Procedure Code (V of 1908), O. XI, R.1‑‑‑Suit by tenant dispossessed from shop by force‑‑‑Appointment of receiver‑‑‑Prima facie evidence showing possession of shop by tenant was in the form of electricity and telephone bills‑‑‑Such position would not be affected, if shop was lying locked over a certain period‑‑‑Tenant was regularly depositing rent in Court and thus was entitled to appropriate relief‑‑‑In view of conduct of parties, appropriate measures were required to safeguard their interest and prevent property from being wasted or creation of a third party interest‑‑‑High Court accepted application and appointed official Assignee as receiver to take all necessary steps to secure and seal shop.

Muhammad Rafique v. Muhammad 1989 CLC 1318; Mst. Hamida Mullick v. Syed Mushfiq Ali Zaidi 1990 MLD 325; Siraj Din and another v. Additional District Judge, Faisalabad and others 1991 MLD 1046; Maqbool Hussain v. Haji Muhammad Ashraf 1991 MLD 1134; Nawab. Haji Muhammad Dawood Khan and others v. Muhammad Usman Ghani and others 1985 CLC 2309; Messrs A.R. Muhammad Siddique v. The Saifee High School Board 1983 CLC 507; Riaz and others v. Razi Muhammad 1982 SCMR 741; Sikandar and 2 others v. Muhammad Ayub and 5 others PLD 1991 SC 1041; Fazal Muhammad v. Muhammad Usman PLD 1970 Lah: 560; Ghulam Rasool v. Muhammad Waris Bismil 1994 MLD 527; Riaz and another v. Razi Muhammad PLD 1979 Kar. 227; Muhammad Yaqoob and others v. Ghulam Muhammad and others 1981 CLC 654; Aijaz Mehmood v. Shaikh Muhammad Jamil and others 1996 CLC 1027; Farooq Ali Chughtai v. Fazlur Rehman and 3 others 1998 MLD 90 and Government of Pakistan through Ministry of Finance v. M.I. Cheema, Deputy Registrar, Federal Shariat Court and others 1992 SCMR 1852 ref.

Khawaja Shamsul Islam for Plaintiff.

Siddique Mirza for Defendants.

Date of hearing: 4th February, 2002.

P L D 2003 Karachi 463

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

ASGHAR ALI ---Appellant

Versus

Mrs. ZOHRA BAI and another---Respondents

High Court Appeal No.301 of 2002, decided on 8th April, 2003.

Civil Procedure Code (V of 1908)---

----O. XX, R. 13---Administration suit---Sale of property after passing preliminary decree---Reference of Official Assignee for accepting highest bid was not objected to by defendant---Trial Court, through order dated 1-8-2001, allowed defendant either to bring matching offer given by auction-purchaser or purchase property by depositing half amount of such offer within specified time, otherwise offer of auction-purchaser would be absolute---Defendant failed to deposit such amount and his application for extension of time was dismissed---Trial Court accepted reference to Official Assignee dated 22-11-2002 seeking permission for paying to parties their admitted stares---Contention of defendant was that Trial Court had accepted reference dated 22-11-2002 without notice to him---Validity---Defendant had not filed appeal against order dated 1-8-2000---Sale in favour of auction-­purchaser had become absolute on defendant's failure to bring thatching offer or deposit share of plaintiffs---Sale had been confirmed long ago---Trial Court had to distribute sale price between the parties in accordance with their shares, for which Official Assignee had been granted permission through reference dated 22-11-2002---Np right of defendant having been affected by such reference there was no need of any notice to him---High Court dismissed appeal.

Riazuddin for Appellant.

Badrudduja Khan for Respondents.

Miss Sofia Saeed for the Auction-Purchaser.

Date of hearing: 25th March, 2003.

P L D 2003 Karachi 466

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

BORE MUHAMMAD ---Appellant

Versus

Mst. AZIZA BEGUM and others---Respondents

High Court Appeal No. 138 and Civil Miscellaneous Application No.739 of 2002, decided on 8th April, 2003.

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

----S. 42---Civil Procedure Code (V of 1908), O.VII, R.11 --- Declaration, of status or right, relief of---Scope---Plaintiff for seeking such declaration ought to establish entitlement to any legal character or right to property or any alleged denial by defendant---Relief under S.42 of Specific Relief Act, 1877 is provided to safeguard right to plaintiff's own legal character or property and not to right of third party---Where plaintiff had neither produced any document showing his personal interest in the property nor claimed airy personal right therein, rather he was seeking declaration as of right in property of third person, he would have no cause of action and his plaint would be liable to be rejected.

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

----O. VII, R.11---Technicalities should not be allowed to come in the way of justice---Efforts should be made to provide substantial justice to parties before Court---Requirement of law is that incompetent suit should be buried at its inception, if same on its face is not maintainable.

Z.U. Mujahid for Appellant.

Mahmood Habibullah for Respondent No. 1.

S.I.H. Zaidi for Respondent No.2.

Manzoor Ahmed for Respondents Nos.4, 5 and 6.

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

Date of hearing: 25th March, 2003.

P L D 2003 Karachi 470

Before Muhammad Ashraf Leghari, J

Malik SUHAIL and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 173 of 2001, decided on 3rd March, 2003.

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

----S. 302(b)---Appreciation of evidence---Testimonies of prosecution witnesses were of corroboratory nature and they had not witnessed the incident---Said testimonies had established the place of incident, death of deceased in a manner stated by prosecution and corroborated the factum of incident in the house of deceased ---F.I.R. was promptly lodged---Names of culprits were not mentioned in the F.I.R., but they were arrested during the investigation and subsequently they were identified in the parade by sole eye­witness in the case who was wife of one deceased and mother of the other--­Deposition of said eye-witness had shown that she had seen the accused persons on the day of incident as well as one day prior to incident when they came there to recover funds from her husband; she had stated that on the day of incident also accused persons pointed their weapons to her restraining not to disclose incident to anybody and that cause of murders was the recovery of funds---Testimony of the said witness was supported by medical evidence--­Contention that identification parade was defective, was repelled as no such objection was raised by the defence before the Magistrate---Eye-witness identified accused persons in Court and such identification was of much importance which got support from other attending circumstances and other pieces of evidence---Statement of eye-witness under S.161, Cr.P.C. though had not been recorded on the day of incident and her statement under S.164, Cr.P.C. was belated by three weeks, but the gravity of incident was such that she must have pondered over it for quite a long time whether to take a tussle with criminals or forego all that what happened to her---Witness had no reason to falsely implicate the accused persons---Argument that eye-witness had not pin-pointed the role of each culprit at the time of identification parade, had no force as each one of them was equally responsible for causing fires by which two innocent persons had lost their lives---Eye-witness was a natural witness and her presence in the house at the time of incident was not doubted---Some lapses on part of police, would not discredit testimony of eye-witness which otherwise was corroborated by medical evidence--­Trial Court, in circumstances, had rightly convicted and sentenced accused.

Kaim and others v. The State PLD 1961 (W.P.) Kar.728; Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127; Muhammad Ali alias Mamoon and 2 others v. The State 2000 PCr.LJ 774; Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088 and Farman Ali v. The State 1997 SCMR 971 ref.

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

----Art. 22---Identification parade---Object---Identification parade was not the requirement of any law, but it was the rule of propriety in order to secure authenticity of identification of real culprits---Principles laid down by superior Courts for guidance were to be followed, keeping in view the fact and circumstances of each case.

Ali Muhammad and another v. The State 1985 SCMR 1834 ref.

Azizullah K. Shaikh for Appellants

Fazlur Rehman Awan, State Counsel.

Date of hearing: 15th November, 2002.

P L D 2003 Karachi 477

Before Mushir Alam, J

CLIFTON CENTRE ASSOCIATION (CCA), CLIFTON, KARACHI through General Secretary---Plaintiff

Versus

CITY DISTRICT GOVERNMENT through Nazim-e-Aala, Municipal Building, Karachi

and 3 others---Defendants

Suit No.433 of 2002, decided on 26th February, 2003.

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

----Arts. 4 & 9---Rights to life, property and business---Guaranteed under Constitution could be enforced through Court of law.

(b) Sindh Local Government Ordinance (XXVII of 2001)---

----Preamble---Object of Sindh Local Government Ordinance, 2001.

Sindh Local Government Ordinance, 2001 and all other laws relating to Local Governments are enacted for the good governance, effective provision for amenities and transparent decision making. Such public functions and duties conferred on the functionaries of District Government are to be exercised for the betterment of the society at large.

(c) Sindh Local Government Ordinance (XXVII of 2001)---

----Ss. 54(g), 191, 192 & Fifth Sched., Part II, Item 39---Affixing of sign board and advertisement---Such powers and functions must be exercised in consonance with rules making power in terms of Ss.191 & 192 of Sindh Local Government Ordinance, 2001.

(d) Sindh Local Government Ordinance (XXVII of 2001)---

----Ss. 54(g), 191, 196(2) & Fifth Sched., Part II, Item 39---Karachi Metropolitan Corporation (Advertisement) Bye-laws, 1978, Bye-law 7--­Advertisement and signboard---Manner of affixing and allocation of sites--­Display of advertisement causing traffic problem or objectionable on social/ethical/moral grounds or against public policy not allowed--­Allocation of site without invitation of offer through press not permissible except in case of prior concurrence of Government---Karachi Metropolitan Corporation (Advertisement) Bye-laws, 1978 were subject to limitations as prescribed under S.191 of Sindh Local Government Ordinance, 2001 and one of its important requirement was natural justice and due process of law---By natural justice, such requirement demanded invitation of objections and hearing of persons to be affected by such permission or fixation of hoarding or neon-sign---Allocation of site without inviting offers through press would amount to refusal of hearing of objection.

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

----S. 54---Expression "right to enjoyment of property"---Connotation---Such right not simply a right to possess and occupy property---Same includes right to free ingress and egress, right to reap benefit, right of view or exposure to and from particular property---Commercial property, office premises and multi-storeyed building---Right of view ---Importance--­Invasion or encroachment of such right to enjoy property---Principles.

Perpetual injunction is regulated under section 54 of Specific Relief Act, 1877. Such injunction may be granted where it is shown that defendant invades or threatens to invade plaintiffs "right to enjoyment of property". Right to enjoy property is not simply a right to possess and occupy the property. By enjoyment of the property, it also includes the right to free ingress and egress, right to reap benefit. One of the most important rights which in this commercial world has acquired a significant importance, is right of view or exposure to and from the particular property. More particularly when such property is of a commercial nature. People are more attracted towards the shops and establishments, when it is exposed to the general view. Office premises may be more beneficially enjoyed in a multi­-storey building, when it has an over view of scenaric land scaping of the city environment. Any invasion or encroachment of such right to enjoy the property is recognised.

Campbell v. Mayor, Aldermen and Councillors of the Metropolitan Borough of Paddington (1911) 1 KBD 869 rel.

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

----Ss. 42 & 54---Right of view and exposure of commercial establishment--­Enforceability of such right through suit for declaration and permanent injunction---Scope---Section 42 read with S.54 of Specific Relief Act, 1877 does give right to institute suit to plaintiff for establishing that right to view and exposure of his commercial establishment is of some beneficial interest to him.

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

----Art. 9---Right to life---Not merely a vegetative living.

Shela Zia's case PLD 1994 SC 693 and Costal Livina's case 1999 SCMR 2882 fol.

(h) Constitution of Pakistan (1973)---

----Art. 4---Right to property or right to carry on business in a property--­Interpretation---Such right not to be interpreted in a narrow sense, but must be given broader perspective and meaning in present commercial environment, where every bit of a commercial premises or establishment has its due importance and pecuniary benefit.

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

----S. 54---Invasion of civil right in nature of tort---Injunctive relief obtainable---Person seeking injunction must make out a case of actual or of threatened violation of its rights.

Cawashah Bomanji Parakh v. Prafullah Nath AIR 1941 Nag. 364; P.C.E. Paul v. W. Robson AIR 1914 PC 45 and Ushaben v. Bhangyalaxmi Chitra Mandir AIR 1978 Guj. 13 rel.

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

----S. 54---Constitution of Pakistan (1973), Art.4---Right of enjoyment of property---Independent right---Public functionaries invading such right--­Remedy of aggrieved person to bring action against such invasion.

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

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Easements Act (V of 1882), Ss.4 & 13---Sindh Local Government Ordinance (XXVII of 2001), Ss.54(g), 196 & Fifth Sched., Part II, Item 39-­Karachi Metropolitan Corporation (Advertisement) Bye-laws, 1978, Bye-law 7---Suit for declaration, cancellation of permission/licence for erecting hoarding board of 100' x 30' size and permanent injunction to restrain erection thereof in plaintiffs' vicinity---Temporary injunction, grant of---Defendant (advertising company/licensee) claimed that they could-not be deprived of their right to carry on business---Validity---Right to enjoyment of property with all intents was easement---Easement of necessity would have precedence over rights of defendant---In case of clash of rights of two individual and private person, then right that first existed and matured would be preferred over the other---Manner in which hoarding of magnitude proposed to be installed would obstruct the view to and from plaintiffs' commercial establishment facing main road and exposure of its frontage and elevation---Affixation of subject advertisement board in proposed manner would certainly affect peaceful "enjoyment of the property" by members of plaintiff association---Prima facie case and balance of convenience was in plaintiffs' favour---High Court disposed of application for interim injunction with directions to affix proposed hoarding or advertisement board at such height and in such manner, which may not obstruct the view, vision and elevation of plaintiffs' commercial establishment.

Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2882; Haji Ghulam Zamin and another v. A.B. Khondkar and others PLD 1965 Dacca 156; M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228; Haji Ghulam Sabir v. Pan Allotment Committee and another PLD 1967 Dacca 607; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and­ General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Cawashah Bomanji Parakh v. Prafulla Nath AIR 1941 Nag. 364; P.C.E. Paul v. W. Robson AIR 1914 PC 45; Ushaben v. Bhangyalaxmi Chitra Mandir AIR 1978 Guj. 13; Kausar Musajee v. Niaz Ahmed 2000 SCMR 1823 and Judicial Review of Administrative Action, 5th Edn. by de Smith, Woolf and Jowell ref.

Abid S. Zubairi for Plaintiff.

Salahuddin for Defendants Nos. 1 and 2.

Abrar Hassan for Defendant No.3.

Dates of hearing: 31st May, 2002 and 18th February, 2003.

P L D 2003 Karachi 487

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

BEENISH ABBASI‑‑‑Petitioner

Versus

PROVINCE OF SINDH through the Secretary, Ministry of Education, Karachi and another‑‑‑Respondents

Constitutional Petition No.D‑449 of 2003, decided on 28th May, 2003.

(a) Educational institution‑‑

‑‑‑‑ Using unfair means in examination‑‑‑Students using unfair means should not be allowed to go with their illegal acts at the cost of other students, who follow rules and work hard otherwise same would amount to deprive students following the rules of institution from their rights.

(b) Educational institution‑‑

‑‑‑‑ Natural justice, principle of‑‑‑Such principles could not be strictly attracted in matter pertaining to students and teachers.

(c) Educational institution‑-

‑‑‑‑ Relationship between student and teacher‑‑‑Nature and basis highlighted.

The relationship between student and teacher is a very delicate relationship based upon the trust and respect. The teachers are supposed to act as parents and to guide the students to improve their character for good society while providing them best possible education so as to meet challenges m future. Likewise the students are also expected to pay respect to their teachers and follow the instructions issued by the institution from time to time.

(d) Educational institution‑-

‑‑‑‑Using cheating/unfair means in examination‑‑‑Disciplinary Committee expelled candidate from institution after finding her guilty of malpractice‑‑­Validity‑‑‑Candidate had been caught red‑handed with cheating material which fact she had admitted in her own handwriting‑‑‑Decision for expulsion had been taken by the Disciplinary Committee consisting of three members and approved by Director of the institution‑‑‑Candidate had neither produced any material to show that Authorities had some bias against her or acted against rules and regulation of the institution while passing such order nor alleged any specific allegation of mala fides against the Disciplinary Committee, which had passed such order‑‑‑High Court dismissed Constitutional petition in limine against the action taken by the Authorities.

Muhammad Shafique v. The State PLD 1977 SC (AJ&K) 1; Khan Baig v. The State 1999 MLD 2168; Al‑Qur'an Surah Al‑Baqrah A'yat No.172; Surah Al‑Ana'm A'yat Nos.119, 145; C.R. Rao v. Registrar, Andhra University AIR 1972 Andh. Pra. 127; Karnatake Public Service Commission and others v. B.M. Vijaya Shankar AIR 1992 SC 952; Shaukat Ali v. Controller of Examinations 1981 SCMR 364 and Qamar‑ul‑Islam v. The Institute 1993 MLD 1362 ref.

(e) Natural justice, principles of‑‑

‑‑‑‑ Requirement of natural justice depends upon circumstances of the matter, nature of inquiry, the rules under which Tribunal is acting, subject‑matter that is being dealt with and set forth.

(f) Natural justice, principles of‑‑

‑‑‑‑ Need for show‑cause notice, oral or otherwise, and examination of witnesses depends on facts and circumstances of each case.

Ghulam Qadir Jatoi and Muhammad Saleem Sammo for Petitioner.

Abbas Ali, Addl. A.‑G., Sindh for Respondent No. 1.

Ch. Muhammad Jamil for Respondent No.2.

Dates of hearing: 7th and 8th May, 2003.

P L D 2003 Karachi 495

Before Mushir Alam, J

CLIFTON AND DEFENCE TRADERS WELFARE ASSOCIATION through General Secretary---Plaintiff

Versus

PRESIDENT, CLIFTON CANTONMENT BOARD, KARACHI and 4 others---Defendants

Suit No. 1109 of 2002, decided on 26th February, 2003.

(a) Administration of justice----

---- Courts are sanctuaries of justice not to be persuaded by technicalities and wherever possible and circumstances so required to act in aid of justice and adopt such interpretation or mould relief in a manner that may serve the cause of justice and suppress the mischief---Technicalities cannot be allowed to be used to frustrate such cause.

Khalid & Co. v. Cantonment Board Suit No.131 of 2001 (unreported) fol.

Muhammad Ilyas Hussain's case PLD 1976 SC 785 rel.

(b) Jurisdiction----

---- Jurisdiction is guarded jealously by Courts---Ouster or barring clauses of the legislations are to be strictly construed.

Khalid & Co. v. Cantonment Board Suit No. 131 of 2001 (unreported) fol.

Muhammad Ilyas Hussain's case PLD 1976 SC 785 rel.

(c) Cantonments Act (II of 1924)--

----S. 273(1)(4)---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for declaration and injunction against Cantonment Board---Prior notice, absence of--­Maintainability of suit---Temporary injunction, grant of---Principles.

In the very provision under subsection (4) to section 273, it is postulated that suit of injunction is very much maintainable even without notice and provision of subsection (1) to section 273 are not attracted in case where the claim is for injunction. Reason being obvious, as spelt out from the very provision, by issuance of such notice the very object would be defeated.

Even if it is presumed for a moment, the suit for declaration is not maintainable then also the relief of injunction cannot be denied merely because the declaration at this particular moment cannot be extended to the plaintiff. Such declaration, even otherwise, can only be extended after the conclusion of trial and recording of the evidence. Relief of injunction at interlocutory stage is governed on different considerations: where the Court is only required to see the prima facie cafe is made out. Balance of convenience and so also irreparable loss to a party.

Khalid & Co. v. Cantonment Board Suit No.131 of 2001 (unreported) fol.

Muhammad Ilyas Hussain's case PLD 1976 SC 785 rel.

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

----O. VII, Rr. 7 & 8---Several reliefs claimed---Duty of Court---Where several reliefs are claimed, then Court always leans in favour of extending such relief permissible under law---Where relief claimed is separable and if any of the reliefs for any reasons is barred and cannot be granted, then Court leans in favour of relief, which can be extended or granted to suppress mischief and redress a wrong---Court is clothed with jurisdiction to order for separate trial of a distinct relief and/or cause.

Khalid & Co. v. Cantonment Board Suit No. 131 of 2001 (unreported) fol.

Muhammad Ilyas Hussain's case PLD 1976 SC 785 rel.

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

----O. VII, R.11(d)---Rejection of plaint on ground of limitation---Facts alleged in the plaint, prima facie, would be taken as true and correct for the purpose.

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

----S. 91---Public nuisance---Definition.

What acts constitute a public nuisance are not defined under the Code of Civil Procedure. Nuisance cannot be defined exactly and exhaustively, all definitions are merely illustrative, it premises on large number of variables. Causes keep on adding with emergence of new and complex inter personal relationship between person to person and person to society. Nuisance amounts to interference wit the person's use or enjoyment of his property or any right appurtenant thereto, a tortious act.

(g) Nuisance----

---- Definition.

Black's Law Dictionary ref.

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

----S. 91---Act complained of both public and private nuisance---Person affected thereby may bring action without permission of Advocate-General.

An act at the same time can be both, public or private nuisance, public because it affects adversely many persons or community at large and private in the sense that it also entails special damages or injury to private and individual right of one or few. Where an act complained of is both public and private Nuisance, then any person affected by such wrong or nuisance may bring an action without permission of Advocate-General.

(i) Easements Act (V of 1882)--

----S. 4---Specific Relief Act (I of 1877), Ss.42 & 54---Right to view and sight---Such rights emanate from "right as to any property" and "right of enjoyment of a property"---Such right is equally important and valuable right attached to a person's property--Acknowledgment of such right by changing environment---Background discussed.

(j) Cantonments Act (II of 1924)--

----S. 282(18)(23)---Advertisement through hoarding, bill board on road side, over and above the building---Nobody can be allowed to fix a board or neon-sign just next to window or door of any one's private property-­Necessity to regulate and control such advertisement under law emphasised--­In case of conflict of rights balance has to be struck between two rival rights---Where there is conflict of two private rights then the right which emerged and existed first is to be respected and preferred---Importance of advertisement highlighted.

In this commercial world no one can deny the importance of advertisement which is an effective medium of approaching consumers and public-at-large towards product and service of commercial organization but, such right cannot be extended to an extent where it encroaches upon the rights of another person. Where there is a conflict of rights then a balance has to be struck between two rival rights, nobody can be allowed to fix a board or neon-sign just next to the window or door of any person's private property. When there is conflict of two private rights then the right which emerged and existed first is to be respected and preferred.

Importance of advertisement through media and various other sources including through hoarding, bill board on road side over and above the building cannot be denied. It necessitated to be regulated and controlled under law. The "Cantonment Board" in terms of the Cantonments Act, Rules and Regulation framed thereunder is responsible to regulate such advertisement through hoardings etc. One of the powers conferred on the Board is defined under clauses 18 and 23 of section 282 of the Act.

It is indeed anomalous, that various civic agencies operate in cosmopolitan city of Karachi and all are oblivious of their responsibility and duty cast upon them to at least frame and follow uniform policy in respect of matter of common denomination like Advertisement Policy. In absence of such uniform policy, dispute and controversy tend to arise giving cause of action on the ground of discrimination.

When there is a clash of rights of two individuals and private persons then the right that first existed and matured would be preferred over the other.

(k) Cantonments Act (II of 1924)--

----S. 282(18)(23)---Contract Act (IX of 1872), S.23---Constitution of Pakistan (1973), Art. 199---Advertisement Policy, 1999---Allowing erection of unauthorised board of 60' x 20' on basis of compromise executed between licensee and Cantonment Board during pendency of Constitutional petition--­Validity---Board could not be allowed to deviate from its own policy which allowed only maximum board of 20' x 40'---Such compromise would not be allowed to nullify such policy nor same could be allowed to be enforced, if found to be in negation of any provision of law---Such compromise to the extent of deviation would be against public policy in terms of S.23 of Contract Act, 1872 and could be struck down by Court.

Zafar Ahmad and 5 others v. Government of Pakistan through Secretary, Ministry of Production, Islamabad and 6 others 1994 MLD 1612 and Muhammad Idrees v. Collector of Customs and others PLD 2002 Kar. 60 rel.

Syed Badr-ud-Din and 10 others v. Government of N.-W.F.P. through Agri. Forest & Coop., Peshawar and 11 others PLD 1994 SC 345 ref.

(l) Constitution of Pakistan (1973)---

----Art. 4(2)(a)---Specific Relief Act (I of 1877), S.54---Right of enjoyment of property---Public functionaries encroaching upon one's such right--­Remedy of aggrieved person stated.

Right of enjoyment of a property is independent right and if it is shown that the public functionaries act in a manner as it may encroach upon a private right which may also be invasion of a public right then individual whose rights are encroached may bring an action against such invasion.

Clifton Centre Association v. City District Government, Karachi and another PLD 2003 Kar. 477 fol.

(m) Cantonments Act (II of 1924)---

----S. 273(1)(4)---Specific Relief Act (I of 1877), Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction against Cantonment Board---Temporary injunction, grant of--­Grievance of plaintiff was against erection of abnormal size of bill board in the vicinity---If subject board was allowed to be installed in a mariner proposed, same would affect and invade peaceful "enjoyment of the property" by constituents of plaintiff---Prima facie case and balance of convenience was in favour of confirmation of ad interim orders---High Court disposed of application for grant of interim injunction with directions to defendant to affix proposed hoarding or advertisement board not more than size permissible under Advertisement Policy, 1999 at such height and in such manner as not to obstruct the view, vision and elevation of plaintiff's commercial establishment.

Pacific Multinational (Pvt.) Ltd. v. I.-G. Police PLD 1992 Kar. 283; Dada Bhoy Investment (Pvt.) Ltd, v. Federation of Pakistan PLD 1995 Kar. 33; Government of Sindh v. Abbas Ahmed 1994 SCMR 923; Pakistan SCS (Pvt.) v. Trustees of Port of Karachi PLD 2001 Kar. 30; Messrs Arif Builders and Developers v. Government of Pakistan and 4 others PLD 1997 Kar. 627; Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another 1992 CLC 2540; Syed Hussain Ali v. Ahmed Bux 1992 MLD 2000; Messrs Business Computing International (Pvt.) Ltd. v. IBM World Trade Corporation 1997 CLC 1936; Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 and Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 ref.

Abid S. Zubari for Plaintiff.

Nazar Hussain Dhoon for Defendants Nos. 1 and 2.

Khawaja Naveed Ahmed for Defendants Nos. 4 and 5.

Dates of hearing: 30th December, 2002 and 18th February, 2003.

P L D 2003 Karachi 507

Before Gulzar Ahmed, J

Mrs. SHEHER BANO---Appellant

Versus

MUHAMMAD SHARIF---Respondent

First Rent Appeal No.262 of 2001, decided on 2nd May, 2003.

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

----Ss. 23, 17(2)(4) & 17-A---Civil Procedure Code (V of 1908), S.12(2)--­Application under S.12(2), C.P:C. was not covered by S.23, Cantonments Rent Restriction Act, 1963---Not only application under S.12(2), C.P.C. was maintainable but the same was not barred by the provision of S.23 of the Act---Principles.

Section 23, Cantonments Rent Restriction Act, 1963 shows that Rent Controller shall summarily reject application under section 17(2) & (4) or section 17-A of the said Act which substantially raises the same issues which have been finally decided in the former proceedings under the Act. The provision has some semblance to the principles of res judicata enshrined in section 11 of the C.P.C. Section 23 itself stipulates that it applies to application under section 17(2) or under section 7(4) or under section 17-A of the Act. Thus the provision in itself is descriptive and will have no application to any other provision apart from those mentioned in the section. Application under section 12(2), C.P.C. will not be covered by the provision of section 23 of the Act.

Therefore not only the application under section 12(2), C.P.C. was .maintainable, but it was not barred by the provision of section 23 of the Cantonments Rent Restriction Act, 1963.

Ismail v. Subedar Gul Inayat Shah PLD 1991 SC 997 quoted.

1993 CLC 1787; 1992 SCMR 917; Ismail v. Subedar Gul Inayat Shah PLD 1991 SC 997 and 1992 CLC 980 ref.

M. Aziz Malik for Appellant

Nemo. for Respondent

Date of hearing: 28th April, 2003.

P L D 2003 Karachi 511

Before Muhammad Afzal Soomro, J

SAGHIR AHMED through Legal Heirs---Applicant

Versus

Mst. ZAKRA BEGUM---Respondent

Civil Revision No.26 of 2000, heard on 10th April, 2003.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement to sell---Alleged sale agreement was a forged document as the same was not proved to have been executed and written by the Petition Writer as claimed by the plaintiff--­Record had revealed that the plaintiff had filed another suit on the subject claiming only for permanent injunction and in that suit he had not made any prayer for specific performance of said agreement to sell the property--­Plaintiff had been paying the rent to the defendant (owner of the property) and had also enhanced they monthly rent in a compromise in the Court--­Plaintiff had also failed to prove the alleged part payment of the price of the property to the owner of the property---Both Courts below, in circumstances, had rightly dismissed the suit and appeal of the plaintiff---No material illegality or irregularity having been pointed out by the plaintiff in the judgment and decrees of both the Courts, High Court declined interference in revision.

Razi Khan and others , v. Nasir and others PLD 1997 SC 2084; Malik Muhammad Khan v. Naseemullah PLD 2000 Quetta 66; 2001 SCM'R 424; 2001 MLD 1969; PLD 2002 SC 46; Ch. Nazar Muhammad and others v. Shafiq Ahmed Khan and others PLD 1963 (W.P:) Lah. 23; Ramzan Ali Shah v. Mst. Razia Sultana and others PLD 1968 BJ 1; Qurban Hussain v. Haji Ch. Manzoor-ul-Hassan 1983 CLC 201; Ghulam Muhammad v. Muhammad Jan and 4 others PLD 1987 Azad J&K 62; Province of Punjab and 3 others v. Gul Muhammad Khan through his 'L.Rs. 1988 MLD 2110; Abdul Latif v. Mst. Zainab Bibi and others 1992 -CLC 515; Alam Khan and 3 others v. Pir Ghulam Nabi Shah & Company 1992 SCMR. 2375; Shaikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohiuddin 1996 SCMR 813; Muhammad Sarwar and 6 others v. Mst. Ghulam Bi and 2-others 1997 CLC 1800; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Sirajuddin v. Najamuddin 2000 CLC 467; Talib Din v. Muhammad Bashir Ahmed 2000 MLD 1124; Khadim Hussain. and others v. Fazal Din 2000 CLC 1359; Azizullah Khan and others-v. Gul Muhammad Khan 2000 SCMR 1647 and Muhammad Ayyaz v. Faizullah Khan and 21 others 2000 MLD 1890 ref.

S. Manzar Alam for Applicants.

Bashir Ahmed Dargahi for Respondent.

Date of hearing: 10th April, 2003.

P L D 2003 Karachi 516

Before Muhammad Mujeebullah Siddiqui, J

ATTA MUHAMMAD ---Petitioner

Versus

DEPUTY DISTRICT OFFICER (REVENUE), ROHRI, DISTRICT SUKKUR and 2 others---Respondents

Constitutional Petition No.297 of 2003, decided on 21st April, 2003.

Constitution of Pakistan (1973)---

----Arts. 4 & 199---Constitutional petition---Right of individuals to be dealt with in accordance with law---Scope and application of Art.4, Constitution of Pakistan (1973)---Contention of the petitioner was that Deputy District Officer was causing harassment to him and asking through notice to vacate the shop in his possession which was owned by another person and he was in its possession as tenant and that said officer had no jurisdiction to do so and could not give any direction in that behalf to the police---Held, issuance of any notice by any Executive Authority (Revenue or Police) to any citizen without jurisdiction amounted to an illegality and an illegal act would come within the purview of causing harassment to a citizen---Principles---High Court directed that all executive officers must desist scrupulously from all acts beyond their jurisdiction and falling within the parameters of an illegal act---Notice issued, in the present case, was consequently quashed and the Executive District Officer (Revenue) as well as the other officers were directed not to take any action, which fell within the jurisdiction of Civil Court and should neither hold any inquiry against nor pass any orders dispossessing the petitioner from the premises in his possession.

Issuance of any notice by any Executive Authority (Revenue or Police) to any citizen without jurisdiction amounts to an illegality and an illegal act would come within the purview of causing harassment to a citizen. Under the Constitution, every citizen is required to be dealt with strictly in accordance with law. Article 4 of the Constitution provides protection of law to every citizen and it is inalienable right of every citizen to be treated in accordance with law, wherever tie may be and of every other person for the time being within Pakistan. Thus Article 4 of the Constitution does not merely provide protection to the citizen of this country but even the aliens, who are for the time being in Pakistan. Whenever any inalienable right is violated, it amounts to the violation of a fundamental right and consequently, would fall within the purview of harassment. All Executive Officers as well as judicial functionaries are required to exercise their jurisdiction strictly in accordance with law and not otherwise. Article 4 of the Constitution is similar to due process clause of the American Constitution and right of every citizen to be dealt with in accordance with law only is to be jealously guarded and no encroachment upon such right of the citizen is to be countenanced in any circumstances, whatsoever.

Act of Executive District Officer, whereby a notice had been issued to the petitioner for which he had no jurisdiction and the exclusive jurisdiction lay with the Civil Court amounted to harassment.

All Executive Authorities must desist scrupulously from all acts beyond their jurisdiction and falling within the parameters of an illegal act. The notice issued was consequently quashed and the Executive District Officer (Revenue), as well the other officers were directed not to take any action, which fell within the jurisdiction of Civil Court and they should neither hold any inquiry nor pass any orders dispossessing the petitioner from the premises in his possession.

Athar Iqbal Shaikh for Petitioner.

Rab Nawaz Mako, State Counsel for Respondents.

Date of hearing: 21st April, 2003.

P L D 2003 Karachi 519

Before Muhammad Ashraf Leghari, J

Syed MUNIR HASSAN ---Appellant

Versus

SHAMSA SAFDAR---Respondent

Second Appeal No. 1 of 1999, decided on 24th April, 2003.

Civil Procedure Code (V of 1908)---

----S. 100---Second appeal---Dissolution of marriage---Suit by wife for return of Jahaiz/dowry and gift articles---Parties adduced the evidence which was assessed and examined by the two Courts below---No jurisdictional defect had been pleaded nor any legal point had been raised---Only grievance of the appellant (husband) was that Jahaiz list was not signed by him ---Validity--­Held, it was not customary in the Society to get the Jahaiz list signed from the bridegroom so as to avoid the controversies starting on the very first day of marriage---Cash memos., list of Jahaiz and the oral evidence by the wife had been examined and appreciated by the two Courts below and the findings were concurrent---Husband did not come forward to examine himself in rebuttal of the testimony of the wife---Father of the husband was living separately from him and therefore his evidence was of no consequence---No illegality or infirmity in the impugned judgments having been found, High Court declined interference in second appeal.

S.M. Yousuf v. S.K. Rahim and others PLD 1969 SC 77; Muhammad Aslam v. Mst. Ferozi through L.Rs. 2001 SCJ 501; Niamatullah Shah v. Farmanullah and another 1980 SCMR 953; Ghulam Hyder Siddiqui v. Settlement Commissioner, Sindh and others 1998 SCMR 25; The State v. Muhammad Iqbal Basra NLR 1987 AC 34 and Abdul Majeed and 6 others. v. Muhammad Subhan and 2 others 1999 SCMR 1245 distinguished

Shaikh Muhammad Usman for Appellant.

A.K.Azmati for Respondent.

Date of hearing, 17th January, 2003.

P L D 2003 Karachi 523

Before Muhammad Mujeebullah Siddiqui, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Manager, State Life Insurance, and 2 others---Petitioners

Versus

ARJAN RAM and 2 others---Respondents

Civil Revision No. 105 of 1992, decided on 6th May, 2003.

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

--S. 19---Acknowledgment of liability in writing---Effect---Computation of period of limitation---Provision of S.19, Limitation Act, 1908 does not provide that a fresh period of limitation shall be computed for once only from the date of acknowledgment of liability---Each time a liability is admitted directly or indirectly, expressly or impliedly, overtly or implicitly same will have the effect of giving a fresh period of limitation, in respect of the liabilities so admitted.

State Life Insurance Corporation of Pakistan v. Kausar Jahan 1982 CLC 1658 and State Life Insurance Corporation of Pakistan v. Mst. Safia Begum 2001 CLC 408 fol.

Saifuddin Shah for Petitioners.

Nemo for Respondent No. 1.

Muhammad Shamim Khan for Respondents Nos. 2 and 3.

Date of hearing: 6th May, 2003.

P L D 2003 Karachi 526

Before Shabbir Ahmed, Sarmad Jalal Osmany and Rehmat Hussain Jafferi, JJ

MUZAMMIL NIAZI and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. 118 and 212 of 2003, decided on 9th July, 2003.

Per Sarmad Jalal Osmany, J.; Shabbir Ahmad, J. agreeing--

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

----S. 497---National Accountability Ordinance (XVIII of 1999), S.9(a)(iii)(iv) & (vi)---Bail, grant of---Project of research and development of a Truck for Pakistan Army while utilizing the facilities of Trailer Development Corporation (Pvt.) Ltd. --Prosecution case was based upon the alleged abuse of authority and wilful failure to exercise such authority by the accused persons (one Chairman of the Project and the other Managing Director of the Company), in their capacity as public servants for the purpose of gaining benefits/favours/pecuniary advantage for themselves and their associates which amounted to the offence of corruption and corrupt practices under S.9(a)(iii), (iv) & (vi) of National Accountability Ordinance 1999 punishable under S.10 thereof---Allegations against the accused, prima facie, arose out of the acts/transactions which were of a corporate nature arid which authorizations were available through Board resolutions of the various companies involved---Right from the inception of the Project, the Army. the Ministry of Production and Pakistan Automobile Corporation (Pvt.) Ltd./its associated companies were fully informed of its size and complexity- and the fact that it was totally dedicated for the use and consumption of the Armed Forces and so also that huge, financial outlays were involved---Project due to a number of reasons, fell into the doldrums and' despite massive assistance, it could not be turned around---Offences as alleged essentially incorporate an element of mens rea which was missing in the present case, insofar as the allegations contained in the reference were concerned with regard to the transactions enumerated therein---Mere erroneous order or lack of jurisdiction on part of public functionary would not amount to an offence under S.9(a)(vi) of the National Accountability Ordinance, 1999 and it would have to be shown by the prosecution that the action by the accused was with the objective of gaining benefit or advantage for himself or for any other person---Misuse of authority vis-à-vis S.9(a)(vi) of the Ordinance meant the use of authority or power in a manner contrary to law or which reflected an unreasonable departure from known precedents and customs---To establish a charge of misuse of authority two essential ingredients would have to be present, first being conscious misuse of authority and secondly gaining of any benefit or favour by the accused for himself or any other person---Head of the Department or Institution might some time 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 his predecessors and continuance thereof without any objections 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 more particularly was not to be treated as a criminal offence---Before convicting any person the prosecution was required to establish beyond any reasonable doubt, all the ingredients constituting an offence and if there was any lacuna, infirmity or doubt the same was to be resolved in favour of the accused person--­Transactions, Reference coupled with the documents on the record had not shown the mens rea of the accused persons at least at the present stage---High Court, in application with the direction that the accused persons were to submit solvent surety in the amount of 10 million each alongwith personal bond in the like amount to the satisfaction of the Nazir of the High Court.

Asfand Yar Wali Khan v. Federation of Pakistan PLD 2001 SC 607; Siddique-ul-Farooq v. The State PLD 2002 Kar. 24; Imtiaz Ahmed v. The State PLD 1997 SC 545; Samir Rauf v. The State Cr.P.L.A. 175 of 2002; The State v. Younis Dalia PLD 1998 Kar. 159; Mansoorul Haq v. The State Criminal Bail Application No.966 of 2002; Asher John v. The State 2002 MLD 603; Ch. Zahur Elahi v. The State PLD 1977 SC 273; M. Saeed Mehdi v. The State 2002 SCMR 282; Zulfiqar Ali v. The State PLD 2002 SC 546; Abdul Qadir v. Federation of Pakistan 2002 SCMR 1488; Manzoor v. The State PLD 1972 SC 81; Anwar Saifullah Khan v. The State PLD 2000 Lah. 564; Tariq Javed Afridi v. The State PLD 2002 Lah. 233; Anwar Saifullah Khan v. The State PLD 2002 Lah. 458 and Javed Hashmi v. The State 2003 PCr.LJ 266 ref.

Samir Rauf v. The State Cr.P.L.A. No.175 of 2002; Mansoorul Haq v. The State Criminal Bail Application No.966 of 2002; Asher John v. The State 2002 MLD 603 and The State v. Younis Dalia PLD 1998 Kar. 159 distinguished.

Per Rahmat Hussain Jafferi, J. Contra.

Per Rahmat Hussain Jafferi, J.--

(b) Bail----

----Grant of---Determination of the fact that reasonable grounds existed to believe that the accused was not guilty of the offence charged with---Principles.

Bail can be granted to an accused person if there are reasonable grounds for believing that the accused is not guilty of the offence charged with. Therefore, it will be seen as to from which material the reasonable grounds or otherwise can be gathered.

Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain Whether reasonable grounds exist or not, the Court should not probe into the merit of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which, if left un-rebutted, may lead to inference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable grounds as distinguished from mere allegations of suspicion. However strong the suspicion may be, it would not take the place of reasonable ground. The words 'reasonable grounds' are words of higher import and significance than the word 'suspicion'. It is for the prosecution to show reasonable grounds to believe that the accused has committed the crime. If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then the Court has the discretion to grant bail.

Government of Sindh v. Raees Farooq 1994 SCMR 1283 and Ch. Abdul Malik v. The State PLD 1968 SC 349 ref.

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

----S. 9(a)(iii)(iv) & (vi)---Intention, of the accused plays a major and deciding role in order to attract the provisions of S.9(a)(iii)(iv)&(vi) of the National Accountability Ordinance, 1999 as such for commission of ,such offence mens rea was an essential ingredient.

Per Shabbir Ahmad, J.; agreeing with Sarmad Jalal Osmany, J:

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

----S.98---Letters Patent (Lahore), Cl. 26---Criminal Procedure Code (V of 1898), Ss.378 & 429---Reference on account of difference of opinion in civil appeal, criminal reference and criminal appeal---Provisions for such reference are contained in S.98, C.P.C. read with Cl.26 of the Letters Patent (Lahore) and Ss.378 & 429 of Cr.P.C. respectively---When the said provisions are put in juxtaposition, the scope of reference in criminal matters and power/jurisdiction of the referee Judge is wider than the scope of reference and jurisdiction of referee Judge in civil appeals.

(e) Letters Patent (Lahore)-----

----Cl. 26---High Court (Lahore) Rules and Orders, Vol. V, Chap. IV-N, R.5---Reference on account of difference of opinion in Constitutional petition---Procedure to be followed with reference to C1.26, Letters Patent (Lahore) and R.5, Chap.IV-N, Vol. V of High Court (Lahore) Rules and Orders---Principles.

Muhammad Sayyar v: Vice-Chancellor, University of Peshawar PLD 1974 SC 257 and Royal Calcutta Turf Club v: Lala Kishan Chand Manchanda AIR 1943 Lah. 84 ref.

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

----S. 98---Letters Patent (Lahore), C1.26---Reference on account of difference of opinion in civil appeal---Procedure to be followed detailed.

Following is the procedure to be followed in a reference in civil appeal on account of difference of opinion:--

(a) The referring Judges are required to formulate the point of difference.

(b) The reference may be on the points of law and or of facts.

(c) The Division Bench continues to retain jurisdiction over the matter.

(d) Where the referring Judges referred the matter for opinion without formulating the point of difference, the referee Judge can formulate such points.

(e) The referee Judge to decide the points of difference only. The whole case is not before him.

(f) The referee Judge after his opinion has to refer back his opinion to the Division Bench seized of the matter.

(g) The final decision in the case is to be on the basis of majority opinion including the Judges who constituted the Division Bench.

Jarnini Mullick v. Emperor ILR 36 Cal. 174; Shakeel v. The State PLD 1997 Kar. 172; Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684; Ahmed Sher and others Emperor AIR 1931 Lah. 513; Sarat Chandra Mitra v. Emperor 11 Cr.LJ 515; Subedar and others v. The State AIR 1956 All. 529; Mohim Mondal v. The State PLD 1964 Dacca 480; Muhammad Sharif v. The State PLD 1971 Lah. 708; Muhammad Sayyar v. Vice-Chancellor, University of Peshawar PLD 1974 SC 257; Royal Calcutta Turf Club v. Lala Kishan Chand Manchanda AIR 1943 Lah. 84; State of Bihar v. Ram Ballabh Das Jalan and another AIR 1960 Pat. 400; A.K. Gopalan v. District Magistrate, Malabar AIR 1949 Mad. 596; Mir Muhammad v. D.M., Nawabshah PLD 1965 Kar. 494; Zaibtan Textile Mills Ltd. v. Central Board of Revenue PLD 1971 Kar. 333 and Mahar Alavi v. Pakistan and 5 others PLD 1980 Kar. 609 ref.

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

----Ss. 378 & 429---Letters Patent (Lahore), Cl. 26---Reference on account of difference of opinion in criminal appeal---Procedure to be followed detailed.

Following is the procedure to be followed in a reference in criminal appeal, on account of difference of opinion:--

(a) The whole case goes to the referee Judge with reference to the particular appellant.

(b) The opinion of the referee Judge is binding on the Division Bench.

(c) His opinion need not be in agreement or at variance with one of the Judges.

(d) The opinion of the referee Judge should be based on independent assessment of the case including the question of sentence.

(e) The referee Judge has to send his opinion to the Bench and the judgment would be based on such opinion.

Jamini Mullick v. Emperor ILR 36 Cal. 174; Shakeel v. The State PLD 1997 Kar. 172; Messrs Muhammad Siddiq Muhammad Umar and another v. the Australasia Bank Ltd. PLD 1966 SC 684; Ahmed Sher and others v. Emperor AIR 1931 Lah. 513; Sarat Chandra Mitra v. Emperor I I Cr.LJ 515; Subedar and others v. The State AIR 1956 All. 529; Mohim Mondal v. The State PLD 1964 Dacca 480; Muhammad Sharif v. The State PLD 1971 Lah. 708; Muhammad Sayyar v. Vice-Chancellor, University of Peshawar PLD 1974 SC 257; Royal Calcutta Turf Club v. Lala Kishan Chand Manchanda AIR 1943 Lah. 84; State of Bihar v. Ram Ballabh Das Jalan arid another AIR 1960 Pat. 400; A.K. Gopalan v. District Magistrate, Malabar AIR 1949 Mad. 596; Mir Muhammad v. D.M., Nawabshah PLD 1965 Kar. 49w; Zaibtan Textile Mills Ltd. v. Central Board of Revenue PLD 1971 Kar. 333 and Mahar Alavi v. Pakistan and 5 others PLD 1980 Kar. 609 ref.

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

----Ss. 429 & 497---Reference on account of difference of opinion in a bail matter---Matter of bail being an interlocutory one, the invocation of provisions of S.429, Cr.P.C. on account of difference of opinion between the Judges would be misplaced as the provision of S.429, Cr.P.C. pertained to the appeals contained in Chap. XXXI, Cr.P.C.---Members of the Division Bench, in case of difference, must either deliver dissenting judgments bringing out the points of difference or formulate the points of difference for reference to the third Judge and the third Judge must then decide the point or points or difference and return his opinion to the Division Bench to enable it to announce its judgment---Where the Division Bench had not expressly formulated the point of difference, third Judge could adopt the line to formulate the point of difference---Principles---Powers and jurisdiction of referee Judge and procedure to be followed detailed.

In such a case in which the members of a Division Bench are equally divided they must either deliver dissenting judgments bringing out the points of difference or formulate the points of difference for reference to third Judge and the third Judge must then decide the point or points of difference and return his opinion to the Division Bench to enable it to announce its judgment.

Only the point of difference is to be referred and not the whole case, and that on such a difference the referee Judge should return the case to be disposed of to the Division Bench with his opinion on the point of difference.

In a case of this nature, it is only- the point of difference that is referred to the third Judge, and the third Judge merely resolves the difference between the Judges of the Division Bench, who continue to retain jurisdiction over the matter. The final decision in the case was to be on the basis of the majority opinion including the Judges who constituted the Division Bench. Therefore, it is manifest that a referee Judge has no jurisdiction to decide anything else besides the points on which there is a difference of opinion, as the whole case or appeal is not before him.

The matter of bail is interlocutory matter. The invocation of the provision of section 429, Cr.P.C., on account of difference of opinion between the Judges, would be misplaced as the provision of section 429 Cr.P.C., pertains to the appeals contained in Chapter XXXI.

Jurisdiction of referee Judge is limited to resolve the difference between the Judges of the Division Bench who continue to retain the jurisdiction over the matter. Referee Judge has no jurisdiction to decide anything else beside the point on which there is difference of opinion as the whole case is not before him.

The power of third Judge is very limited, he cannot make further reference to the Full Bench and is bound to follow a previous Division Bench decision even if he disagrees with it. It is not open to him to refer the matter to the Division Bench.

The members of the Division Bench, in the present case, had recorded separate orders, but they had not stated expressly the point or points on which the difference of opinion arose between them. In case where the members of Division Bench are equally divided, they must deliver dissenting opinions bringing out the points of difference for reference to the third Judge.

Since, in the present case, the Judges of the Division Bench had not expressly formulated the points of difference between them, it became necessary to determine them before proceeding further by adopting the line for formulation of point of difference. Following question was formulated by the third Judge:--

Whether there are reasonable grounds for believing that the applicants are guilty of the offences charged?

The referee Judge did not even have the jurisdiction to decide the point of difference, the jurisdiction for deciding the points remained with Division Bench seized of the matter.

Muhammad Sayyar v. Vice-Chancellor, University of Peshawar PLD 1974 SC 257 and A. K. Gopalan v. District Magistrate, Malabar AIR 1949 Mad. 596 fol.

Ishan Chandra Samanta v. Hridoy Krishan Bose AIR 1925 Cal. 1040; Yusuf Sk. and others v. The State AIR 1954 Cal. 258; Zaibtan Textile Mills Ltd. v. Central Board of Revenue PLD 1971 Kar. 333; Haji Ghulam Ali v. The State 2003 SCMR 597; Mst. Fatima Ismail v. The State Criminal Bail Application No. 1069 of 2002; Mst. Fatima v. The State Petition No.922-K of 2002 and Royal Calcutta Turf Club v. Lala Kishan Chand Manchanda AIR 1943 Lah. 84 ref.

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

----S. 497---Bail, grant/refusal of---Parameters as envisaged under S.497, Cr.P.C. highlighted.

A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should not probe into the merit of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which, if left unrebutted, may lead to inference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable grounds as distinguished from mere allegations of suspicion. However, strong the suspicion may be, it would not take the place of reasonable ground. The words 'reasonable grounds' are words of higher import and significance than the word 'suspicion'. It is for the prosecution to show reasonable grounds to believe that the accused has committed the crime. If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then the Court has the discretion to grant bail.

The provisions of section 497(1), Cr.P.C. are not punitive in nature. There s no concept of punishment before judgment in the criminal law of the land. The question of grant/refusal of bail is to be determined judiciously having regard to the acts and circumstances of each case. Where the prosecution satisfies the Court, that there are reasonable grounds to believe that the accused has committed the crime falling in the first category the Court must refuse bail. On the other hand where the accused satisfies the Court that there are not reasonable grounds to believe that he is guilty of such offence, then the Court must release him on bail. For arriving at the conclusion as to whether or not there are reasonable grounds to believe that the accused is guilty of offence, the Court will not conduct a preliminary trial/inquiry but will only make tentative assessment, i.e. will look at the material collected by the police for and against the accused and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the evidence and circumstances appearing in the case is neither desirable nor permissible at bail stage. So, the Court will not minutely examine the merits of the case or plea of defence at that stage.

Bail order must be carefully balanced and weighed in scale of justice and requirement of law. Reasonable grounds mean grounds which appeal to a reasonable and prudent man.

Government of Sindh v. Raeesa Farooq 1994 SCMR 1283 and Tariq Bashir v. State PLD 1995 SC 34 ref.

(j) Mens rea---

----An essential element in action/omission constituting the offence--­Principles detailed.

The general rule of law is that no crime can be committed unless there is mens rea. On the same principle an act done under an honest and reasonable belief in the existence of a state of things would not in general, fall within a statute which prohibited it under a penalty.

A statutory crime may not contain an express definition of the necessary state of mind. A statute may require a specific intention, malice, knowledge, wilfulness or recklessness. On the other hand, it may be silent as to any requirement of mens rea, and in such a case, in order to determine whether or not mens rea is an essential element of the offence, it is necessary to took at the objects and terms of the statute. In some cases, it has been concluded that despite the absence of express language the intention of the Legislature was that mens rea was a necessary ingredient of the offence. In others, the statute has been interpreted as creating a strict liability irrespective of mens rea. Instances of this strict liability have arisen on legislation concerning food and drugs, liquor-licensing, and many other matters.

Unless a statute clearly or by necessary implication rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law 'unless he has a guilty mind'.

In case of statutory offence the presumption is that mens rea is an essential ingredient unless the statute creating the offence by express terms or by necessary implication rules it out. The mere omission of the word 'knowingly' or 'intentionally' is not sufficient to rebut this presumption for all that such words do is to say expressly what is normally implied. Thus where the words used in the statute are not clear or unambiguous an examination of the general scheme and object of the statute becomes necessary to determine whether the general rule of liability has been departed from. In some cases even the quantum of the punishment has been taken into account for determining this question; though this by itself cannot, be conclusive.

Halsbury's Laws of England, Vol. 10, 3rd Edn., Art.508 and Pakistan through the Secretary of Finance v. Hardcastle Waud (Pakistan) Ltd. PLD 1967 SC 1 quoted.

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

----Ss. 429 & 497---Letters Patent (Lahore), Cl.26---National Accountability Ordinance (XVIII of 1999), S.9---Bail, grant of---Reference to third Judge on account of difference of opinion in bail matter---Referee Judge was not seized of the whole matter which was still seized by the Referring Judges and the jurisdiction of the Referee Judge was confined to the extent of points of difference---No difference about maintainability of the bail application having arisen between the division Bench, plea that the Referee Judge had to decide first the question of maintainability of the bail application could not be raised before the Referee Judge.

Muhammad Sayyar v. Vice-Chancellor, University of Peshawar PLD 1974 SC 257 fol.

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

----Ss. 429 & 497---Letters Patent (Lahore), Cl.26---Reference to third Judge on account of difference of opinion in a bail matter---Scope of reference, jurisdiction and power of the Referee Judge---Formulation of points of difference---Referee Judge had the jurisdiction to formulate the point/points of difference where the referring Judges had not formulated the point/points of difference---Principles---Formulation of points---Contention that formulation of points was to be undertaken by the Referee Judge in exceptional cases, otherwise normal course of action was to refer the case back to the referring Judge for formulation of points of difference, was fallacious.

The Referee Judge has the jurisdiction to formulate the point and or points of difference where the referring Judges have not formulated the point or points of difference by appraising the two judgments.

The point or points of fact or law on which the members of a Division Bench have come to disagree must be expressed separately otherwise the reference to the third Judge will be defective: but if reasons could be ascertained from the dissenting judgments, it was unnecessary to remit the case to the members of the Division Bench for indicating the pints of difference. It is not the requirement of law that apart from writing dissenting judgments the members of a Division Bench should expressly record the point or points on which they have come to differ, but it is unnecessary to analyse this aspect of the case any further because in each case the point or points on which the members of a Division Bench have differed can invariably be ascertained by the perusal of the dissenting judgments.

Clause 26 of Letters Patent, in terms does not prescribe for any form for stating the point of difference or for making the reference to one or more Judges for the resolution of the difference between the judges originally hearing the case. Such point of difference can very wen be round out by the referee Judge or Judges upon perusing the judgments of the dissenting Judges, in order to hear and formulate opinion on the point of difference, so that finally the point may be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.

Contention, that the formulation of points by the Referee Judge is made in exceptional cases otherwise normal course of action is to refer the case back to the referring Judge for formulation of point(s) of difference, was fallacious.

Muhammdd Akram v. Chaudhary Saleem PLD 1964 Lah. 490; Mir Muhammad v. District Magistrate, Nawabshah PLD 1965 Kar. 494; Zaibtan Textile Mills v. Central Board of Revenue PLD 1971 Kar. 333; Mahar Alvi v. Pakistan and 5 others PLD 1980 Kar. 609; Muhammad Sayyar v. Vice­ Chancellor, University of Peshawar PLD 1974 SC 257 and Mubarak Ali Khan v. Anjum Islamia Punjab, Lahore PLD 1982 SC'315 ref.

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

----S. 9---Corruption and corrupt practices ---Mens rea with reference to statutory offence---Presumption, in a statutory offence, is that mens rea is an essential ingredient unless the statute creating the offence by express terms or by necessary implication rules it out---Mere omission of the word "knowingly" or "intentionally" is not sufficient to rebut such presumption for all that such words do is to say expressly what is normally implied--Where the words used in the statute are not clear or ambiguous an examination of the general scheme and object of the statute becomes necessary to determine whether the general rule of liability has been departed from.

Pakistan through the Secretary of Finance v. Hardcastle (Waud) (Pakistan) Ltd. PLD 1967 SC 1 ref.

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

----S. 497---National Accountability Ordinance (XVIII of 1999), S.9---Bail, grant of---Facts, circumstances and record revealed that there was sufficient material available on record for believing that the accused persons were not guilty of the offences charged---Accusations against the accused flowed from massive documentary evidence, accused persons needed opportunity to see these documents, prepare their defence and face their trial under the concept of "fair trial"---Accused, in circumstances, were entitled to bail.

Anwar Saifullah Khan v. The State PLD 2000 Lah. 564 ref.

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

-----Ss. 497 & 429--National Accountability Ordinance (XVIII of 1999), S.9---Bail, grant of---Benefit of doubt--Difference of opinion between Judges on bail matter; one Judge on examination of material collected during the investigation by the prosecution against the accused persons was of the opinion that there was no reasonable grounds to believe that the accused was guilty of the offences charged, and on the same material on record another Judge had come to totally different conclusion that there were reasonable grounds to believe that the accused had committed the alleged offence--­Effect---Contrary conclusion arrived at by the two Judges had made the existence of reasonable ground to connect the accused with the crime doubtful and entitled them to the benefit of doubt at bail stage by extending concession of bail as contemplated under S.497, Cr.P.C.

Empress v. Debi Singh 1986 All. WN 275; Khetri Bewa v. State AIR 1952 Orissa 37; In, re; Ravipat Sitarmayya AIR 1953 Mad. 61; Rajabali and another v. The Crown PLD 1954 Sindh 49; Empress v. Bundoo 1887 All. WN 125; Khurdo and others v. The State PLD 1963 Kar. 92 and The State v. Salehoon PLD 1971 Lah. 292 ref.

Tariq Bashir v. State PLD 1995 SC 340 fol.

(p) Advocacy-----

----Conduct of an advocate prosecuting a criminal case---Hurried behaviour and antagonistic attitude was not compatible with an officer of the Court--­Court expressed dismay on such a conduct of the State Counsel for the prosecution who acted as a typical Prosecutor---High Court advised the public functionaries that while engaging a counsel to represent the State instead of adopting obliging/patronizing attitude, the merits based on knowledge and experience in the field should be the criteria of such selection and/or appointment.

Advocacy by Sonawala ref.

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

----Ss. 497 & 429---National Accountability Ordinance (XVIII of 1999), S.9---Bail, grant of---Difference of opinion by Division Bench---Reference to the third Judge---Referee Judge after answering the reference, observed that the case now be placed before the Division Bench for further orders and if the same Bench was not available, the bail applications being urgent in nature involving the liberty of the citizens and requiring immediate attention, the office may obtain an order from the Chief Justice for the formation of Special Bench.

Mir Muhammad v. District Magistrate, Nawabshah PLD 1965 Kar 494 fol.

Mrs. Ismat Mehdi for Applicant (in Criminal Bail Application No. 118 of 2003).

Abdul Hafiz Lakho and Raja Qureshi for applicant (in Criminal Bail Application No.212 of 2003).

Khalid Mehmood Siddique Special Prosecutor and Muhammad Anwar Tariq, DPG, NAB for the State

Dates of hearing: 12th, 26th, 28th March; 1st, 24th and 29th April; 16th, 19th, 24th, 25th, 26th, 30th June and 1st July, 2003.

P L D 2003 Karachi 598

Before Khilji Arif Hussain, J

Messrs BASF PAKISTAN (PVT.) LTD. ---Plaintiff

Versus

Messrs TANOCRAFT LIMITED---Defendant

Suit No.999 of 1998, decided on 12th September, 2002

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

----O. VII, R.2 & O. VIII, R.10---Suit for recovery of money---Ex parte proceedings---Heavy burden lay on the counsel appearing for the plaintiff and on the Court to see, that no injustice was done to the unrepresented party---Provisions of O. VIII, R.10, C. P. C. were not mandatory in the sense giving no option to the Court except to pass a judgment in favour of the plaintiff---If a written statement was not filed, O. VIII, R.10, C. P. C. did not postulate a judgment to be pronounced and decree be passed automatically or mechanically---Judgment pronounced under O.VIII, R.10, C.P.C. should indicate that the Court had applied its mind to the merits of the case before decreeing the suit---Plaintiff was to prove his case and it was the duty of the Court to see as to whether the suit was filed within time or not.

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

----S. 3---Question of limitation---Court was duty bound to examine the question of limitation irrespective of the fact whether such plea had been raised by a patty in his pleadings or not.

Muhammad Akram v. Mst. Pathani and others 2001 MLD 1037 ref.

(c) Contract-----

---- Instalment contract; entire contract or divisible contract---Where a quantity of goods of the same kind was deliverable in instalments, such a contract was called an instalment contract; and if the price was payable in corresponding instalments, the contract was properly called divisible, though it remained one and entire contract---Question, whether a contract was an entire contract or divisible into several contracts, depended upon the intention of the parties and the circumstances of the case.

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

----O. VII, R.2---Limitation Act (IX of 1908), S.20---Suit for recovery of. money---Plaintiff's own case was that the defendant had to pay for the consignment of each delivery which established that each delivery of consignment had independent bargains and independent contract gave cause for receiving of price of each consignment on the date of delivery---Plaintiff could join all its causes of action in one suit but the same would not in any manner enlarge period of limitation for payment of price of the consignment which would run from the date of delivery of consignment.

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

----O. VII, R.2---Limitation Act (IX of 1908), S.20---Suit for recovery of money against invoices issued to the defendant---Issuance of cheque---Fresh period of limitation---Plaintiff, for the purpose of seeking fresh period of limitation from the date of issuance of cheque under S.20, Limitation Act, 1908, ought to have established that the said cheque had been issued on account of debt---Plaintiff failed to establish that the cheque was issued as an acknowledgment of debt in respect of total invoices due from the defendant---Each invoice and delivery order being an independent cause of action---Cheque in question at best could be an acknowledgment in respect of the relevant invoices only for seeking fresh period of limitation.

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

----O. VII, R.2---Limitation Act (IX of 1908), S.20---Suit for recovery of money---Plaintiff seeking extension in period of limitation on the basis of Fax Message of the defendant claiming that the said Fax Message was an acknowledgment of the liability on behalf of the defendants---Fax Message in question was in reply to Fax Message of plaintiff wherein plaintiff had alleged that the defendants agreed to provide payment schedule and in reply to the same defendants without acknowledging liability had just stated that they were in the process of checking their record---Such message from the defendants could not be termed as an acknowledgment of the liability.

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

----O. VII, R.2---Limitation Act (IX of 1908), Art.62---Suit for recovery of money---Sale of goods by the plaintiff---Limitation---Article 62 of the Limitation Act, 1908 provides period of three years in respect of price of goods sold and delivered where no fixed period of credit was agreed upon--?Period of limitation runs from the date of delivery of the goods--?Acknowledgment after expiry of limitation did not give fresh cause of action or extended the period of limitation of the same.

Sibtain Mahmood for Plaintiff.

Nemo for Defendant.

Date of hearing: 12th September, 2002.

P L D 2003 Karachi 603

Before Wahid Bux Brohi, J

GHULAM HAIDER ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.224 of 2003, decided on 10th July, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/337-A(ii)/337-F(i)/ 114/147/148/149---Bail, grant of ---Co-accused were granted bail keeping in view counter-version in the case and all accused in counter-case were also granted bail---Role of accused was not much different from tile co-accused who were granted bail---Medical Report was not in consonance with the version recorded in F.I.R.---Only factor that accused had caused a blow to complainant on his head which had been certified to .be 'Shujja-e-Khafifa' was not enough to withhold concession of bail---Fatal injuries were not attributed to accused---Accused was in custody for a period more than two years---Accused was admitted to bail in circumstances.

Abdul Rasool Abbasi for Applicant.

Mashooq Ali Samo, Asstt. A.-G.

P L D 2003 Karachi 604

Before Ghulam Nabi Soomro, J

SHAHNAWAZ alias SHANOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-348 of 2003, decided on 8th July, 1003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(2)---Bail, grant of---Further inquiry---Injuries suffered by two persons were attributed to all the three accused persons--­Prosecution witness in his statement under S.164, Cr.P.C. had stated that accused was also armed with Lathi and caused Lathi injury on the arm of the complainant, but said version of prosecution witness was belied by version in the F.I.R. wherein complainant had said that he suffered a simple right arm injury due to a fall on the cart---Unexplained delay of one month in examining two important witnesses, had created circumstances entailing for further inquiry within scope of S.497(2), Cr.P.C.---No reason was shown for failing to hold identification test of accused---Accused was entitled to grant of bail.

Hazoor Bux v. The State 2001 YLR 2089 ref.

Muhammad Ayaz Soomro for Applicant.

Muhammad Bachal Tunio, A.A. -G. for the State.

Date of hearing: 8th July, 2003.

P L D 2003 Karachi 606

Before Shabbir Ahmed and Azizullah M. Memon, JJ

SYED KARIM ---Appellant

Versus

ANTI-NARCOTICS FORCE---Respondent

Criminal Appeal No. 171 of 2002, decided on 15th April, 2003.

(a) Criminal trial--

----Evidence---Appreciation of evidence---Principles---In a society with the present level of moral values which unfortunately prevails, a subordinate official is seldom expected to speak the truth in deviation of the express or implied instructions of his superiors.

(b) Precedent---

---- Principles---Each prosecution case is to be decided on its own merits and circumstances surrounding thereto---Findings and observations recorded in earlier cases are not necessarily to be followed in other cases.

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

----S. 9(c)---Appreciation of evidence---Evidence against the accused and the acquitted co-accused was so closely connected that if one part of the evidence was disbelieved against one accused, then the remaining part thereof was adversely affected---Accused could not be believed to have arranged with acquitted co-accused to reach the place of occurrence for receiving from him the heroin when the said co-accused was not even available in the city---No case, therefore, was made out against the accused for being in possession of the heroin as alleged by the prosecution for its delivery by him to the acquitted co-accused---Captain of the Pakistan Army who was with the complainant party and was supervising the recovery proceedings of heroin from the accused, had not been examined by the prosecution and the presumption of law would be that had the said witness been examined, he would not have supported the case of prosecution and there being no evidence in rebuttal of the said presumption, it was to be given conclusive effect---Accused had a right in the circumstances to make a prayer before the Trial Court as well as before the High Court for referring the entire case property to the Chemical Examiner for report as to whether it was or was not a narcotic substance, but the Trial Court had got the case property illegally destroyed without issuing any such notice to the accused and without affording him due opportunity of being heard, who had been deprived of making any such request either before the Trial Court or before the Appellate Court and thus stood seriously prejudiced---Positive report of the Chemical Examiner having cuttings, over-writings and interpolations was not free from doubt and, even otherwise, it was not consistent with the evidence of recovery witnesses---Accused was acquitted in circumstances.

Ali Hassan v. State PLD 2001 Kar. 369; State v. Sardar Pervaiz Akhtar Criminal Appeal No. 157 of 2001; PLD 1990 SC 1176; 2000 PCr.LJ 755; 2001 SCMR 36; 2000 PCr.LJ 1975; 1999 SCMR 1367; 2002 PCr.LJ 976; Ali Muhammad and another v. The State 2003 SCMR 54 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), S.9(c)--­Disposal of case property---Section 516-A, Cr.P.C. read with the observation given by Supreme Court in Ali Muhammad's case reported as 2003. SCMR 54, gives a valuable right to the accused to object against the destruction of the allegedly recovered property from his possession and to plead that he having not been issued such a notice and not been afforded with due opportunity of being heard in this regard, stands seriously prejudiced.

Ali Muhammad and another v. The State 2003 SCMR 54 ref.

(e) Criminal trial--

---- Benefit of doubt---Principles---Where a single circumstance creates a doubt in a prudent mind, its benefit has to be given to the accused not at a matter of grace but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Azizullah K. Shaikh for Appellant.

Shoaib M. Ashraf, Special Prosecutor for Respondent.

Date of hearing: 7th March, 2003.

P L D 2003 Karachi 618

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

KAKA KISHANCHAND and others---Appellants

Versus

THE STATE and another---Respondents

Criminal Accountability Appeals Nos.52, 53, 54, 56 and 57 of 2002, decided on 29th May, 2003.

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

----Art. 61---Opinion as to handwriting when relevant---Apart from other modes, one mode for proving the signature of a person is under. Art.61 of Qanun-e-Shahadat, 1984, under which the signature or the document can be proved through a person who is conversant with the signature and writing of the person whose signature and writing are to be proved.

Agha Wazir Abbas v. The State 2003 PCr.LJ 1353 ref.

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

----S. 510---Report of Chemical Examiner, Serologist etc. ---Handwriting science is a completely different field and a different science than the categories of sciences mentioned in S.510, Cr.P.C.---Provisions of S.510, Cr.P.C. are not applicable to the report of Officers in respect of sciences other than those mentioned in the section.

Zamir Hussain v. Crown PLD 1949 Lah. 179 ref.

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

----Arts. 46 & 71---Cases in which statement of relevant fact by person who is dead or cannot be found etc. is relevant---Eight clauses mentioned in Art.46 of the Qanun-e-Shahadat, 1984 are exceptions to the general rule of evidence that all oral evidence must be direct, viz., if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it; if it refers to a fact which could be heard it must be the evidence of the witness who says he heard it; if it refers to a fact which could be perceived by any other sense it must be the evidence of the witness who says he perceived it by that sense; if it refers to an opinion it must be the evidence of the witness who holds that opinion, as provided by Art. 71 of Qanun-e-Shahadat, 1984--­When a person deposes a fact in a Court of law he states under the oath and is liable for prosecution for perjury if he states falsely and his statement can be tested through cross-examination, thus there is some sort of guarantee of truth to the said statement, but in a case covered under any clause of Art.46 of the Qanun-e-Shahadat, 1984, said safeguards are absent, as the maker of the statement is not examined as a witness at all---Article 46 thus relates only to relevancy of evidence and not to the manner of its proof.

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

----Arts. 46(1) & 155---Dying declaration---Dying declaration which is admissible under Cl.(1) of Art.46 of Qanun-e-Shahadat, 1984, has first to be proved that the same is genuine and true and then it can be acted upon and some sort of corroboration is also required---Method to prove the recording of the dying declaration is to examine the some persons who were present at the time and heard the statement being made or if the statement was written or dictated by the deceased it must be proved---If the said statement is not proved in such manner then it will be inadmissible even though it may have been recorded by the Magistrate, as Art.91 of Qanun-e-Shahadat, 1984, does not raise any presumption that the said statement was made by a particular person---When a person who recorded the dying declaration is called he is required either to repeat what the deceased had stated refreshing memory from the record under Art. 155 of Qanun-e-Shahadat or to merely report that the record correctly represents what the deceased had stated, but in any case the record must be brought and proved in accordance with law.

Tawaib Khan v. State PLD 1970 SC 13; Sher Bahadur v. State 1972 SCMR 651; Muhammad Yasin v. State 1978 SCMR 303; Sultan v. State 1970 PCr.LJ 751; Ayub v. State PLD 1973 SC 609; Abdul Rehman v. State 1997 PCr.LJ 1274 ref.

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

----Art. 46(1) & (3)---Dying declaration and confession, proof of---Normal procedure of proof is to be adopted in the case of dying declaration before relying upon the same---Similarly in the case of confession admissible under Art.46(3) the required proof is essential.

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

----Art. 91---Presumption as to documents as record of evidence--­Presumption of genuineness is attached to a document when the statement of witness or confession made by an accused is taken in accordance with law as provided under Art.91 of the Qanun-e-Shahadat, 1984.

(g) Criminal trial---

---- Evidence---Appreciation of evidence---Corroboration---Principles---Piece of evidence itself requiring corroboration cannot qualify as a corroborative evidence.

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

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

----S. 10---Appreciation of evidence ---Accused was proved to have issued 33 fake and forged permits with his signatures in favour of a store for the import of wine which was to be delivered from a Brewery on which duty was evaded and public exchequer sustained huge losses---Conviction and sentence of accused were maintained in circumstances---No conspiracy between the accused and other co-accused having been established on the record who were not linked with the offence in any manner whatsoever, they were acquitted accordingly.

Nasim Ahmed v. The State 1992 MLD 620; Jaffar Hussain v. Dacca Municipal Committee PLD 1969 Dacca 927; Irshad Ahmed v. The State 2002 SCMR 814; The State v. Nisar Ahmed Khoro and others PLD 1998 Kar. 86; Abdul Ghafoor and another v. The State 1982 PCr.LJ 1128; Abul Mansur and another v. The State PLD 1961 Dacca 753; Tariq Mehmood and another v. The State 2002 SCMR .32; Agha Wazir Abbas v. State 2003 PCr.LJ 1353; Zamir Hussain v. Crown PLD 1949 Lah. 179; Himatsing Badharsingh v. The State of Gujarat AIR 1965 Guj. 302; Tawaib Khan v. State PLD 1970 SC 13; Sher Bahadur v. State 1972 SCMR 651; Muhammad Yasin v. State 1978 SCMR 303; Sultan v. State 1970 PCr.LJ 751; Ayub v. State PLD 1973 SC 609; Abdul Rehman v. State 1997 PCr.LJ 1274; Shah Ali and others v. The Crown PLD 1954 Sindh 136; Ghulam Muhammad v. The State 1976 PCr.LJ 258; Wazir and offers v. The State PLD 1960 Kar. 674 and Pir Bux v. The State 1979 PCr.LJ 746 ref.

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

----S. 37---Cooperation by doing one of several acts constituting an offence---When several acts are done so as to result together in the commission of an offence, the doing of any one of them with the intention to cooperate in the offence, makes the actor liable to be punished for the commission of the offence.

Muhammad Anwar Tariq, D.G.P. for Respondents.

Dates of hearing: 14th, 15th, 19th November, 12th, 13th, 20th and 24th December, 2002.

P L D 2003 Karachi 655

Before Ata‑ur‑Rehman and Azizullah M. Memon, JJ

MUHAMMAD MITHAL alias WAHID BUX and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.78 of 2002(K) and Confirmation Case No.2 of 2002(K), decided on 4th June, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(a), 308 & 302(c)‑‑‑Appreciation of evidence‑‑‑Prosecution witnesses were related inter se and despite presence, of a number of people in the locality no independent witness was produced by the prosecution and there was no explanation to that effect‑‑‑Prosecution evidence did not inspire confidence whereas defence plea was believable‑‑‑Accused while taking the law in his own hands had deprived two human beings of their lives in a brutal manner‑‑‑Conviction of accused under S.302(a), P.P.C. for committing Qatl‑e‑Amd of the male accused and his sentence of death thereunder were set aside in circumstances and instead he was convicted under S.302(c), P.P.C. and awarded the maximum punishment of 25 years' R. I. on that count‑‑‑Accused had not brought on record that he and his deceased wife had any children from their wedlock and provisions of Ss.306 & 308, P.P.C., therefore, were not attracted to his case‑‑‑Conviction of accused under S.308, P.P.C. was consequently altered to S.302(c), P.P.C. for having committed the murder of his wife, but in the absence of any notice for enhancement of sentence on that count, 14 years' R.I. awarded to him was maintained‑‑‑Both the sentences, however, were directed to run concurrently with the benefit of S.382‑B, Cr.P.C.

The State v. Muhammad Hanif 1991 SCMR 2047; Federation of Pakistan v. Gul Hassan Khan PLD 1989 SC 633; Abdul Zaheer and another v. The State 2000 SCMR 406; Mumtaz Khan v. The State 1999 SCMR 837; Abdul Haq v. The State PLD 1996 SC 1 and Muhammad Siddiq v. The State PLD 2002 Lah. 444 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Qatl‑e‑Amd for Karo Kari, Siyah Kari etc.‑‑‑Qatl‑e‑Amds for Karo Kari, Siyah Kari, Ghairat etc. are being accepted and condoned on the basis of customs and traditions prevailing for centuries, but such pleas in defence are absolutely baseless‑‑‑Crime of Karo Kari and Siyah Kari is already being looked after and dealt with by the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and no one is to be permitted any more to take the law in his own hands on the pretext of punishing infidels.

Abdul Qadir Halepota for Appellants.

Jawed Akhtar for the State.

P L D 2003 Karachi 667

Before Saiyed Saeed Ashhad, C. J. and Ghulam Rabbani, J

COLLEGE OF PHYSICIANS AND SURGEONS PAKISTAN‑‑‑Petitioners

Versus

WAFAQI MOHTASIB and others‑‑‑Respondents

Constitutional Petition No.D‑1977 of 1995, decided on 23rd July, 2003.

(a) Pakistan College of Physicians and Surgeons Ordinance (XX of 1962)‑‑

‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Principles of natural justice‑‑‑Applicability‑‑Failure to inform candidates regarding increase in pass percentage ‑‑‑Examination Committee increased the pass percentage from 50% to 55% but the said increase was neither shown in the prospectus nor the candidates were informed about the same‑‑‑Affected candidates were declared unsuccessful‑‑‑Decision of Examination Committee was assailed before Wafaqi Mohtasib, who set it aside and declared the candidates as successful‑‑‑Plea raised by the Authorities was that it was their prerogative to increase the pass percentage and they were not bound to inform the candidates regarding such change and that failure to mention the change in pass percentage was on the part of the persons who printed the prospectus‑‑‑Validity‑‑‑Authorities had the power to modify, amend or alter any of the existing provisions relating to admissions, conduct of examinations, pass percentage and other allied and connected matters or to introduce new rules and regulations provisions for imparting studies and conducting examinations but principles of natural justice required that such modifications, amendments, or alterations and/or introduction of new rules and policies should have been brought to the notice of the candidates who were to appear in the examination‑‑‑Omission on the part of the persons responsible for printing of prospectus would not absolve the Authorities of their obligation to inform the candidates appearing in the examination regarding increase in pass percentage‑‑‑High Court in exercise of Constitutional jurisdiction declined to interfere in the order, passed by Wafaqi Mohtasib‑‑‑Constitutional petition was dismissed in circumstances.

Nazeer Ahmad v. Wafaqi Mohtasib and others C.P. No.D‑2155 of 1995; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and Others PLD 1970 SC 1; Engineer‑in‑Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 and Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 ref.

(b) Pakistan College of Physicians and Surgeons Ordinance (XX of 1962)‑‑--

‑‑‑‑S. 9‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.114‑‑‑Increasing of pass percentage‑‑‑Doctrine of estoppel ‑‑‑ Applicability ‑‑‑ Authorities increased the passing marks and did not inform the candidates of such change‑‑‑Neither the prospectus issued to the candidates, nor the prospectus issued afterwards contained the new criteria for passing the examinations‑‑‑Plea of inadvertence was raised by the Authorities‑‑‑Validity‑‑‑Inadvertence negligence or mistake on the part of Authorities to mention the pass percentage as 55% in the prospectus issued to the candidates subsequent to the decision of the Examination Committee could not be allowed to adversely affect a candidate who had appeared in the theory paper on the assumption that he would clear the same on securing 50% marks‑‑‑Authorities by making a declaration of pass percentage as 50% in the prospectus made a certain representation regarding the existence of a fact‑‑‑Even presuming that such declaration/representation was on account of inadvertence, mistake or negligence, it would be immaterial as a representation even when made innocently or mistakenly could operate as estoppel ‑‑‑Provisions of Art. 114 of Qanun‑e‑Shahadat, 1984, were applicable in circumstances.

(c) Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)‑‑‑

‑‑‑‑Art. 2(1)‑‑‑Term "agency"‑‑‑Scope‑‑‑Statutory Corporation & other institution established by Federal Government is included in the definition of "agency" as provided in Art.2(1) of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983.

(d) Interpretation of statutes‑‑

‑‑‑‑ Word appearing in a statute‑‑‑Meaning‑‑‑Such words are to be assigned their normal and original meaning unless assigning the normal meaning of the words leads to absurdity.

(e) Interpretation of statutes‑‑

‑‑‑‑Words "and" and "or", use of‑‑‑Principles‑‑‑Use of words "and" and "or" in a statute are interchangeable but such is to be done to implement the intention of Legislature‑‑‑Such interchange can be made only when no absurdity or ambiguity is likely to be caused as the same is as essential requirement for interchanging.

Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512 ref.

(f) Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)‑‑‑

‑‑‑‑Preamble‑‑‑Object of the order‑‑‑Jurisdiction of Wafaqi Mohtasib‑‑?Scope‑‑‑From the preamble of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, it cannot be assumed that the intention of legislation was to restrict or limit the jurisdiction of Wafaqi Mohtasib to diagnose, investigate, redress and rectify injustice done to a person through maladministration only in the establishment or organizations controlled or managed by Federal Government.

(g) Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1083)‑‑‑

‑‑‑‑Art. 2(1)‑‑‑Word "or" used in Art.2(1) of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983‑‑‑Connotation‑‑‑Word "or" is disjunctive, therefore, for an establishment/organization to fall within the definition of "Agency" it is not necessary that besides its constitution by Federal Government it should also be controlled or managed by Federal Government.

(h) Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)‑‑‑

‑‑‑‑Art. 9‑‑‑Review application‑‑‑Maintainability‑‑‑Jurisdiction of Wafaqi Mohtasib‑‑‑Scope‑‑‑Jurisdiction vested in Wafaqi Mohtasib under Art.9 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, does not provide for a review application‑‑‑Such application was not maintainable in circumstances.

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

‑‑‑‑Art. 199‑‑‑Constititional jurisdiction of High Court‑‑‑Judicial review, power of‑‑‑Scope‑‑‑When findings of administrative or executive or quasi ?judicial Tribunals are in violation of law or rules, or are based on misreading or insufficient or inadmissible evidence or the findings are found to be arbitrary, the superior Courts have always the power to review such decisions.

Asghar Hussain v. Election Commission PLD 1968 SC 387; Presiding Officer v. Sadaruddin Ansari PLD 1967 SC 569; Messrs East and West Steamship Company v. Pakistan and others PLD 1958 SC (Pak.) 41; Shahban v. The State PLD 1974 Lah. 44; Imtiaz Bashir v. Special High Powered, Committee and 4 others PLD 1978 Quetta 131 and Dyal Singh College Trust Society v. The Custodian of Evacuee Property, West Pakistan, Lahore and others PLD 1962 Lah. 352 ref.

Khalil‑ul‑Rehman for‑Petitioners.

Sajjad Ali Shah, D.A.G. for the Official Respondents Nos. 1 and 2.

Nemo for Respondent No.3.

Date of hearing: 16th May, 2003.

P L D 2003 Karachi 679

Before S. Zawwar Hussain Jafri, J

SAFIA BANO and others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.1272, 1273 and 1410 of 2002, decided on 11th December, 2002.

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

‑‑‑‑S. 498‑‑‑Anticipatory bail, grant of‑‑‑Powers of High Court and Court of Session‑‑‑Provisions of S.498, Cr.P.C. occupied the position of a supplementary provision insofar as it conferred not only concurrent, but revisional powers on High Court and the Court of Session in respect of grant or refusal of bail by subordinate Courts and police had enabled those Courts to exercise powers to grant anticipatory bail in suitable cases.

Abdul Majeed v. Judge Special Court 1985 PCr.LJ 890; Allied Bank of Pakistan v. Khalid Farooq 1991 SCMR 599; Abdul Rasheed v. The State PLD 2003 Kar. 2003 and The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322 ref.

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

‑‑‑‑S. 498‑‑‑Interim‑ pre‑arrest bail, confirmation of‑‑‑Accused had placed material on record to show that they had been involved in the case falsely due .to departmental jealousy and ulterior motive of vested interest against whom accused had made certain reports of misdeeds, irregularities and misappropriation of funds‑‑‑Interim pre‑arrest bail granted to accused was confirmed‑‑‑Accused were allowed to remain on bail on the same terms‑‑­Accused were directed to cooperate during investigation as and when required to do so.

Nuruddin Sarki, Rasheed A. Razvi, Gohar Iqbal, Shabir Ahmed Awan and Syed Raza Ali Abidi for Applicant.

Qazi Wali Muhammad for the State.

P L D 2003 Karachi 682

Before Shabbir Ahmed and Azizullah M. Memon, JJ

ABDUL RASHEED‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1215 of 2002, decided on 3rd October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss.5(6), 10 & 12‑‑‑Ad interim pre‑arrest bail, confirmation of‑‑­Jurisdiction of High Court‑‑‑Deputy Attorney‑General had not opposed application of the accused for confirmation of ad interim pre‑arrest bail, but had raised two‑fold contention, firstly that High Court had no jurisdiction to grant bail before arrest in view of S.12 of Offences in Respect of Banks (Special Courts) Ordinance, 1984 which had overriding effect; secondly that propriety demanded that accused should have first approached the Trial Court which had concurrent jurisdiction‑‑‑Validity‑‑‑Contentions were repelled because if law maker intended to keep the jurisdiction of bail with Special Court only, it had not mentioned the words "by any other Court" in subsection (6) of S.5 of Offences in Respect of Banks (Special Courts) Ordinance, 1984‑‑‑Claim in respect of ouster of power of High Court concerning any matter or subject available to it under Codes of Civil or Criminal Procedure, could not be lightly accepted, unless there was a clear, definite and positive provisions ousting the jurisdiction‑‑‑Express words or clear intendment or necessary implication were required to take away the jurisdiction of a High Court or any other superior Court‑‑‑Section 498, Cr.P.C. occupied position of a supplementary provision insofar as it conferred not only concurrent, but also revisional powers on the High Court and the Court of Session in respect of grant or refusal of bail by subordinate Courts and police and enabled said Courts to exercise powers of anticipatory bail, in suitable cases‑‑‑Interim bail granted to accused, was confirmed.

Abdul Majeed v. The Judge Special Court (Offences in Banks) 1985 PCr.LJ 890; Allied Bank of Pakistan v. Khalid Farooq 1991 SCMR 599 and Zahoor Elahi v. The State PLD 1977 SC 273 ref.

Rasheed A. Razvi for Applicant.

Khursheed A. Hashmi, D:A.‑G. for the State.

P L D 2003 Karachi 686

Before Saiyed Saeed Ashhad, CJ. and Ghulam Rabbani, J

PAKISTAN PAPERSACK CORPORATION LTD. ‑‑‑Petitioner

Versus

BOARD OF REVENUE, SINDH and others‑‑‑Respondents

Constitutional Petition No.D‑1538 of 1999, decided on 16th July, 2003.

Stamp Act (II of 1899)‑‑‑

‑‑‑‑Ss. 40, 56, 57 & 58‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Efficacious alternate remedy‑‑­Making up of deficiency in stamp duty‑‑‑Procedure‑‑‑Authorities after inspection of record of the petitioner, pointed out the deficiency in stamp duty on certain instruments‑‑‑Prior to the making of any demand of deficient stamp duty, the petitioner assailed the act of Authorities in the Constitutional petition‑‑‑Validity‑‑‑Petitioner would have been liable to make payment of the deficient amount, only after the Collector of Stamps, in exercise of his powers under S.40 of Stamp Act, 1899, and after taking into consideration the contents of the instruments, had come to the conclusion that they were deficiently stamped and the stamps of the value found deficient were to be affixed thereon‑‑‑On such order having been made by the Collector of Stamps, the petitioner would have been entitled to approach the Revenue Authorities by way of revision/reference under S.56 of Stamp Act, 1899‑‑­Full‑fledged machinery having been provided in Stamp Act, 1899, for determination of issues and questions arising with regard to the deficiencies in payment of stamp duty on instruments covered by the provisions of Stamp Act, 1899 parties were required to exhaust all such remedies available to then before invoking the Constitutional jurisdiction of High Court‑‑‑Constitutional petition was dismissed in circumstances.

Khalid Mehmood v. Collector of Customs, Custom House, Lahore 1999 SCMR 1881 and Mst. Kaniz Fatima v. Muhammad Salim and 27 others 2001 SCMR 1493 ref.

Shahenshah Hussain for Petitioner.

Qazi Khalid Ali, Addl. A.‑G., Sindh for Respondents.

Date of hearing: 23rd April, 2003.

P L D 2003 Karachi 691

Before Saiyed Saeed Ashhad, C. J. and Ghulam Rabbani, J

JEHAN KHAN‑‑‑Petitioner

Versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petition No.D‑699 of 1995, decided on 23rd June, 2003.

(a) Void order‑‑

---Effect of void order‑‑‑Principles‑‑‑Void order is nullity in the eye of law and does not confer any right on the parties‑‑‑Party adversely affected by void order should take resort to proper proceedings for getting the same set aside in accordance with the provisions of law as and when it comes to the knowledge of the affected party.

Evacuee Property Board through the Deputy Administrator, Evacuee Trust Property, Sahiwal v. Muhammad Azam and 2 others 1995 SCMR 520; Malik Khawaja Muhammad and 24 others v: Marduman Babar Kahol and 29 others 1987 SCMR 1543 and Messrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599 ref.

(b) Affidavit‑‑

‑‑‑‑Statement in affidavit‑‑‑Failure to file affidavit‑in‑rejoinder‑‑‑Effect‑‑­When no such rejoinder was filed, then the facts narrated in the affidavit had to be accepted as true.

(c) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 3‑‑‑Limitation‑‑‑Applicability‑‑‑Illegal and void order‑‑‑Effect Provisions of Limitation Act, 1908, relating to period of limitation for filing of application/appeal do not apply to illegal and void order for deciding the matter on merits.

(d) Colonization of Government Lands (Punjab) Act (IV of 1912)‑‑‑

‑‑‑‑S. 10‑‑‑Limitation Act (IX of 1908), S.3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Grant of Government land‑‑­Duplicate allotment‑‑‑Void order, setting aside of‑‑‑Limitation‑‑‑Demised land was granted/settled in favour of the father of respondent‑‑‑Without verifying such fact, the Authorities granted the same land to the petitioner which was a duplicate order‑‑‑Respondent on coming to know about issue of order in favour of petitioner, applied to the Authorities for cancellation of the grant on the same day‑‑‑Grant in favour of the petitioner was recalled and the order was cancelled‑‑‑Plea raised by the petitioner was that the proceedings initiated by respondent were barred‑by limitation‑‑‑Validity‑‑­Order of grant of demised land in favour of the petitioner was a duplicate order and the same was unlawful, without any legal effect and was void ab initio‑‑‑Challenging a void order, provisions of Limitation Act, 1908, were not applicable‑‑‑Party adversely affected by a void order could resort to appropriate proceedings for getting the same set aside within a reasonable time from the date when the same had come to his knowledge‑‑‑Duplicate grant in favour of the petitioner was rightly cancelled by the Authorities‑‑­Petition was dismissed in circumstances.

Rehmat Ali v. Muhammad Ramzan through Legal Heirs 2001 SCMR 1283; Jahana and others v. Sadiq and others 1990 SCMR 1008; Mitho Khan v. Member, Board of Revenue, Sindh, Hyderabad and another PLD 1997 Kar. 299; Cantonment Board, Kharian Cantt. through Executive Officer v. Muhammad Shaft PLD 1991 SC 400; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Muhammad Ibrahim v. Mst. Farzana and another PLD 1994 Kar. 255 and Muhammad Yamin and 16 others v. Member (Land Utilization), Board of Revenue, Sindh and others 1981 CLC 1700 distinguished.

Jagdish R. Mulani for Petitioner.

Qazi Khalid Ali, Addl. A.‑G., Sindh for the Official Respondents.

Saleemuddin A. Patoli for Respondent No.5.

Date of hearing: 15th April, 2003.

P L D 2003 Karachi 700

Before Shabbir Ahmed, J

ESSA and others‑‑‑Plaintiffs

Versus

SADDIQ ALI and others‑‑‑Defendants

Suit No.574 of 1999, decided on 12th September, 2003.

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

‑‑‑‑S. 11‑‑‑Res judicata, principles of‑‑‑Applicability‑‑‑Conditions to invoke the principles enumerated.

In order to invoke the principles of res judicata, following conditions are necessary:‑‑

(1) The matter directly and substantially in issue in the subsequent suit or the issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.

(2) The former suit must have been a suit between the same parties or between parties under whom they or anyone of them claim.

(3) The parties must have litigated under the same title in the former

(4) The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised.

(5) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.

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

‑‑‑‑S. 11‑‑‑Res judicata, principles of‑‑‑Applicability‑‑‑Suit dismissed for non‑prosecution‑‑‑Preconditions to invoke the provisions of S.11, C.P.C. being not available, same could not be pressed into service.

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.IX, R.9‑‑‑Suit for declaration‑‑‑Plea of adverse possession‑‑‑Dismissal of suit‑‑‑Any such right flowing from the said cause of action would be hit by O.IX, R.9, C.P.C.

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

‑‑‑‑O. VII, R.11‑‑‑Specific Relief Act (I of 1877), Ss.8 & 42‑‑‑Suit for declaration and possession of property‑‑‑Rejection of plaint‑‑‑Plaintiff's cause of action to bring the suit for declaration of their tenancy right, was a plea of permissible possession claiming such right through their father who had taken a contradictory plea of adverse possession to claim ownership over the property‑‑‑Both pleas being destructive of each other, plaint of the plaintiff was liable to be rejected.

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 114‑‑‑Estoppel‑‑‑Principles recognized for giving effect to estoppel illustrated.

The principles recognized for giving effect to estoppel are firstly that the fact recited should be essential for the deed creating the rights and obligations; secondly the suit must be based on the deed or concerning a right based on it; thirdly that it should have prompted the other side to an action to its prejudice and fourthly that the estoppel should not be utilized for making something legal which, in fact, is illegal and offending against a statutory, provision concerned with public policy.

K.B.Bhutto for Plaintiffs.

Zafar Hadi Shah for Defendant No. 1.

Abbas Ali, Addl. A.‑G. Sindh.

Date of hearing: 1st September, 2003.

P L D 2003 Karachi 705

Before Shabbir Ahmed and Gulzar Ahmed, JJ

HASHMAT ALI CHAWLA‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Constitutional Petition No. 2277 of 2001, decided on 3rd September, 2003.

(a) Exit from Pakistan (Control) Ordinance (XLVI of 1981)‑‑‑

‑‑‑S.3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Placing of name of the petitioner on the Exit Control List‑‑‑Person aggrieved could make representation to the Federal Government‑‑‑If any obligation was placed by the Exit from Pakistan (Control) Ordinance, 1981, upon a person the Authorities were obliged to furnish the grounds for such action to enable him to make an effective representation to the Federal Government against the same‑‑‑Where no such grounds were furnished by the Authorities, Constitutional petition was maintainable against the order of the Authorities.

(b) Exit from Pakistan (Control) Ordinance (XLVI of 1981)‑‑‑

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Arts. 4, 9, 15 & 199‑‑­Constitutional petition‑‑‑Placing of name of a person on the Exit Control List‑‑‑Validity‑‑‑Every citizen has the right that, no action detrimental to his life and liberty shall be taken except in accordance with law and every citizen, inter alia, has the right to enter and move freely throughout Pakistan, but his right to enter the country if he has gone abroad and his right to leave the country if he so desires is subject to restrictions imposed by law in the public interest and Exit from Pakistan (Control) Ordinance, 1981 is one of such laws.

(c) Exit from Pakistan (Control Ordinance (XLVI of 1981)‑‑‑

‑‑‑‑Ss. 2 & 3‑‑‑Scope and application of Ss.2 & 3 of Exit from Pakistan (Control) Ordinance, 1981.

Section 2 of the Exit from Pakistan (Control) Ordinance, 1981 indicates that the Federal Government has been empowered to prohibit by apt order, any person or class of persons from proceeding from Pakistan to a destination outside Pakistan. Subsection (2) further indicates that before making an order under subsection (1) it would not be necessary to afford an opportunity to any person against whom such an order has been passed to show cause against the order. The said section further indicates that the grounds on which the order is proposed to be made, may not be specified in public interest, if it so appears to the Federal Government. Section 3 of the Ordinance provides for a right of review within 15 days of making of the order under section 2 by providing a right to an aggrieved person to make a representation to the Federal Government setting out in the representation the grounds on which he seeks the review.

(d) Exit from Pakistan (Control) Ordinance (XLVI of 1981)‑‑‑

‑‑‑‑S. 2(3)‑‑‑Constitution of Pakistan (1973); Art.199 ‑‑‑ Constitutional petition‑‑Power to prohibit exit from Pakistan‑‑‑Federal Government was to determine whether it was necessary to prohibit the person from proceeding to any destination outside Pakistan in the public interest but the same was subject to judicial review on the ground that the orders were extraneous or had no relevance to the public interest.

(e) Exit from Pakistan (Control) Ordinance (XLVI of 1981)‑‑‑

‑----S. 2(3)‑‑‑Constitution of Pakistan. (1973), Art.199‑‑‑Constitutional petition‑‑‑Power to prohibit exit from Pakistan in public interest‑‑‑Public interest‑‑‑Concept‑‑‑Public interest though could not be measured by any yardstick but the same was a matter which could be left to the subjective satisfaction of the Authority concerned.

(f) Exit from Pakistan (Control) Ordinance (XLVI of 1981)‑‑‑

‑‑‑‑Ss. 2 & 3‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Power to prohibit exit from Pakistan‑‑‑Reasonable grounds‑‑­Travel abroad could be barred if it was shown that the person was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the State and was against the public interest‑‑­Reasons for placing the name of the person on Exit Control List, in the present case, was on account of illegal construction in violation of the approved plan, which was subject to condonation/regularization under the relevant law‑‑‑No incriminating material was available with the Authorities against the person tending to show that he was involved in any serious kind of nefarious activities or acting prejudicial to the security and solidarity of the State‑‑‑Illegal construction was not a reasonable ground on which a citizen's liberty to travel abroad could be curtailed‑‑‑Order of the Authorities, in circumstances, could not be sustained in law inasmuch as not a single instance of involvement of the person in any serious crime was shown to exist‑‑‑Principles.

Every citizen shall have the right to remain in, enter and move freely throughout Pakistan and to reside and settle in any part thereof but this is subject to any reasonable restriction. Indeed the power purportedly vested in the Federal Government is apparently unfettered and unrestricted the discretion vested in Executive must be exercised fairly, reasonably, justly and in accordance with law and the Constitution. In absence of any incriminating material available with the Government against the person tending to show that he was involved in any serious kind of nefarious activities or acting prejudicial to the security and solidarity of the State, impugned order cannot be sustained in law inasmuch as not a single instance of involvement of the person in any serious crime is shown to exist. The reasons for placing the name of the person was on account of his illegal construction in violation of the approved plan, which is subject to condonation/regularization under the law i.e. Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002.

This reason was not a reasonable ground on which a citizen's liberty to travel abroad could be curtailed. No doubt, to travel abroad could be barred if it was shown that the person was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the State and was against the public interest.

Abdul Hafiz Pirzada v. Government of Pakistan 1989 CLC 79: Saleem Akhtar v. Federation of Pakistan PLD 1999 Kar. 177; Babar Khan Ghori v. Federation of Pakistan PLD 1999 Kar. 402; Wajid Shamsul Hasan v. Federation of Pakistan PLD 1997 Lah. 617; Miss Naheed Khan v Government of Pakistan and others PLD 1997 Kar. 513; Syed Abul A'ala Maududi v. The State Bank of Pakistan and another PLD 1969 Lah. 908 Syed Sharifuddin Pirzada v. Federation of Pakistan and others PLD 1973 Kar. 132; Ch. Zahur Ilahi v. Secretary to Government of Pakistan, Ministry of Home and Kashmir Affairs, Rawalpindi PLD 1975 Lah. 499; Government of Pakistan through Secretary, Ministry of Interior and another v. Dada Amir Haider Khan PLD 1987 SC 504; Satwant Singh Sawhney v. Assistant Passport Officer AIR 1967 SC 1836; Smt. Maneka Gandhi v. Union of India and another AIR 1978 SC 597 and Ashiq Ali Bhutto v. President, Summary Military Court PLD 1979 Kar. 814 ref.

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

‑‑‑‑S. 3(3)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutionat­petition‑‑‑Power to prohibit exit from Pakistan‑‑‑Public interest‑‑‑Disclosure of grounds for making orders prohibiting the person from proceeding abroad‑‑‑Federal Government, except in case of public interest, was bound to disclose the grounds for making orders prohibiting the persons from proceeding abroad‑‑‑No reason, in the present case, had been assigned and the order was groundless‑‑‑Non‑furnishing of the grounds for the impugned action was sufficient to declare the same without lawful authority.

Rasheed A. Razvi for Petitioner.

Syed Tariq Ali, Federal Counsel for Respondent No. 1.

Muhammad Sarwar Khan, Addl. A.‑G. for Respondent No.2 with. Sarfraz Ahmed Khan for K.B.C.A.

Date of hearing: 13th August, 2003.

P L D 2003 Karachi 721

Before Rasheed H. Rizvi, J

KARACHI CITY CRICKET ASSOCIATION, KARACHI‑‑‑Plaintiff

Versus

MUJEEBUR RAHMAN, CHAIRMAN, AD HOC COMMITTEE, PAKISTAN CRICKET BOARD, LAHORE and 2 other‑‑‑Defendants

Suit No. 1080 of 1999, decided on 30th September, 1999.

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

‑‑‑‑Ss.42 & 54‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑-­Constitution of Pakistan Cricket Board, Arts.32, 37 & 41‑‑‑Constitution of Pakistan (1973), Art. 17‑‑‑Suit for declaration and injunction‑‑­Suspension/supersession of Karachi City Cricket Association Karachi by the Ad hoc Committee of Pakistan Cricket Board‑‑‑Suspension of the Karachi City Cricket Association meant and included suspension of nearly 318 Clubs and deprivation of thousands of cricket players who were all looking forward to playing on provincial and national levels‑‑‑Word "opinion" as used in Art.37 of the Constitution of Pakistan Cricket Board contemplated a situation where there should be a subjective assessment of the entire situation by the Authority before taking any action under the said Article‑‑‑Powers under said Art.37 had to be exercised rarely, sparingly and in very exceptional cases when any of the conditions enumerated therein were fulfilled and the same was directly in conflict with the fundamental rights, which not only grant right to form an association but at the same time, also grant right to continue running of the same‑‑‑Very concept of fundamental right was that same being a right guaranteed by the Constitution of the State could not be taken away by the law, and it was not only technically inartistic but a fraud on the citizens for the makers of the Constitution to say that a right was fundamental and still that could be taken away by the law‑‑‑Plaintiff, in the present case, tied prima facie established that action of the defendant in suspending the Karachi City Cricket Association did not fall within the scope of Art.37 of the Pakistan Cricket Board and it was violative not only of the principles of natural justice but also of the fundamental rights‑‑‑All such circumstances of the present case supplied sufficient material to initially establish malice in law‑‑‑Burden was on the defendants to prove bona fides and lawfulness of their action under challenge in the suit for which no material, whatsoever was placed by them, except for bare allegations of irregularities and misuse of funds of the Association, in their written statement, for which no action had been initiated by the defendants against the Association till the date of decision of the present proceedings‑‑­Defendants, in circumstances, had failed to meet the requirements of the relevant law ‑‑‑Gross violation of principles of natural justice in suspending the Association had taken place‑‑‑Plaintiffs having established the existence of a prima facie case, irreparable loss and injury as well as the balance of convenience in, their favour, their application was granted with the directions that defendants should not interfere in the lawful and bona fide working of the plaintiff/KCCA till disposal of the suit; that the suit be fixed for regular hearing within six months for which office was directed to fix the suit for framing of issues and for hearing of other applications on the specified date that the plaintiffs were directed to ensure holding of free and fair elections of the KCCA as per its Bye‑Laws/Regulations in most transparent manner and on the due date to avoid any misconception in future about the injunction granted; and that in view of the allegations of the defendants, it will be open to them to take, action afresh as provided in Article 37 of the Constitution Board but strictly in terms thereof and after fulfilment of the requirements of the principles of natural justice.

Usman Punjwani and another v. Government of Sindh and another 1996 CLC 311; M. Noman v. Dacca Improvement Trust and others PLD 1964 Dacca 671; M.S. Khawaja v. Chairman, Municipal Corporation, Lahore and others PLD 1966 (W.P.) Lah. 1006; Messrs Pak Army Furnishing Stores v. Syed Ali Akbar Rizvi and 3 others PLD 1985 Kar. 201; Mian Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321; Tafazzal Hossain y. Government of East Pakistan and another PLD 1965 Dacca 68; Chamber's 20th Century Dictionary; Tooh v. The State PLD 1960 Kar. 1; Star Rolling Mills v. Commissioner of Income‑tax PLD 1974 Note 129 at p. 189; Khawaja Muhammad Sharif v. Federation of Pakistan and others PLD 1988 Lah. 725; Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166; V.G. Row v. The. State of Madras AIR 1951 Mad. 147; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Jibendra Kishore Acharya Chowdhry and others v. The Province of East Pakistan PLD 1957 SC (Pak.) 9; Malik Ghulam Mustafa Khar's case PLD 1989 SC (Pak). 26; Mian Manzoor Ahmed Wattoo v. Federation of Pakistan PLD 1997 Lah. 38; Black's Law Dictionary: Ballentine's Law Dictionary; Mrs. Aneesa Rehman v. PIAC and another 1994 SCMR 2232; Nasir Khan v. Aziz Ahmed and others PLD 1980 Kar. 122 and University of Dacca and another v. Zakir Ahmed PLD 1965 SC 90 ref.

(b) Mala fides‑--

‑‑‑‑ Allegation of mala fides was to be pleaded with material particulars.

(c) Malice‑‑

‑‑‑‑"Malice in law" and "malice in fact"‑‑‑Distinction.

Malik Ghulam Mustafa Khar's case PLD 1989 SC 26 and Mian Manzoor Ahmed Wattoo v. Federation of Pakistan PLD 1997 Lah. 38 ref.

(d) Words and phrases‑‑‑

‑‑‑‑"Suspend"‑‑‑Connotation.

Messrs Pak Furnishing Stores v. Syed Ali Akbar Rizvi and 3 others PLD 1985 Kar. 201; Black's Law Dictionary and Ballentine's Law Dictionary ref.

(e) Natural justice, principles of‑‑‑

‑‑‑‑Applicability‑‑‑Principles of natural justice had to a read as part of every statute unless the same was specifically excluded‑‑‑Said principles are applicable to judicial as well as to all quasi judicial proceedings.

Mrs. Aneesa Rehman v. PIAC and another 1994 SCMR 2232; Nasir Khan v. Aziz Ahmed and others PLD 1980 Kar. 122 and University of Dacca and another v. Zakir Ahmed PLD 1965 SC 90 ref.

Arshad Tayabally for. Plaintiff.

Usman Ghani Rashid for Defendants.

P L D 2003 Lahore 1

Before Asif Saeed Khan Khosa, J

Mst. AZRA ISRAR‑‑‑Petitioner

Versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB and others‑‑‑Respondents

Writ Petition No. 18595 of 2002, heard on 1st November, 2002.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Prayer for quashing F.I.R.‑‑‑Allegations levelled in F.I.R. pertained to commission of trespass, outraging the modesty of respondent lady and issuance of threats etc. ‑‑‑Complainant as well as the witnesses mentioned in the F.I.R. lead stood by their statements made before the Police in respect of the said allegations and after completion of investigation challan had already been prepared in the case for onward submission before the competent jurisdiction‑‑‑ Held, allegations as levelled in the F.I.R. necessarily required holding of a factual inquiry which exercise could not be undertaken by the High Court in summary proceedings under Art. 199 of the Constitution and, in circumstances, it would be premature for High Court to comment upon the veracity or otherwise, of the allegations contained in the said F. I. R. ‑‑‑Purpose of quashing F.I.R. through exercise of Constitutional jurisdiction being primarily to save a person from the rigours of an unjustified investigation and if investigation of a criminal case had already been finalized the High Court would generally be slow in interfering in the matter at such a stage as in case of submission of challan before the Court of competent jurisdiction many remedies would become available to the affected person.

Haji Muhammad Sadiq v. Ilaqa Magistrate, Police Station Factory Area, Faisalabad and others 2001 PCr.LJ 1571.: Farrukh Salim v. The State PLD 1997 Lah. 385 and Qaiser Mahmood v. Muhammad Shafi and another PLD 1998 Lah. 72 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Quashing 'the F.I.R.‑‑‑Object‑‑‑Purpose of quashing the F.I.R. through exercise of constitutional jurisdiction is primarily to save a person from the rigours of an unjustified investigation and if investigation of a criminal case has already been finalized then High Court is generally slow in interfering in the matter at such a stage as in case of submission of a challan before the Court of competent jurisdiction many remedies would become available to the affected person.

Haji Muhammad Sadiq v. Halqa Magistrate, Police Station Factory Area, Faisalabad and others 2001 PCr.LJ 1571; Farrukh Salim v. The State PLD 1997 Lah. 385 and Qaiser Mahmood v. Muhammad Shafi and another PLD 1998 Lah. 72 ref.

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

‑‑‑‑S. 11‑‑‑Res‑judicata, principle of‑‑‑Essence of the principle of res judicata contained in S.11, C.P.C. is that a relief which is or which can be claimed and prayed for by a litigant through one recourse to law cannot be claimed or prayed for again by the same litigant before the same forum‑‑‑Principle thus, saves the Court from being vexed repeatedly by a litigant for the same relief or for a relief which could have been claimed or prayed for by him in earlier action.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), S.11‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.114‑‑‑Constitutional petition‑‑‑Quashing the F.I.R.‑‑­Principle of res judicata‑‑‑ Essence‑‑‑Estoppel, doctrine of‑‑‑Applicability‑‑­Relief regarding quashing the F.I.R. had not only been pressed by the petitioner in the earlier Constitutional petition before High Court but the matter had been argued by the counsel of the petitioner at some length and it was only after failing to convince the Court regarding that relief that the petitioner had felt satisfied with disposal of the Constitutional petition with a direction regarding transfer of investigation of the criminal case in question‑‑‑Held, in such circumstances, for all practical and legal purposes it was to be deemed that the said relief being insisted upon by the petitioner in that Constitutional petition had actually and consciously been refused to her fly the High Court‑‑‑Petitioner, therefore, could not be allowed to approach the High Court again, so as to press or pray for the same relief all over again‑‑‑Principle of estoppel may also be pressed into service in .this connection:

Muhammad Sadiq through General Attorney v. Khawaja Khalid Saeed, Chairman, Capital Development Authority, Islamabad and another 2001 CLC 569; Saleem Ahmad v. Khushi Muhammad. 1974 SCMR 224 and Capital Development Authority, Islamabad through Chairman v. Khuda Bukhsh and 5 others 1994 SCMR 771 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Penal Code (XLV of 1860), Ss.463 & 464‑‑‑Constitutional petition‑‑‑Quashing of F.I.R. on the plea that it had not at all disclosed any offence ‑‑‑F.I.R. in question expressly and specifically alleged the playing of deception or acting with dishonest or fraudulent intention by the petitioner in the making of a forged document‑‑‑Petitioner, in circumstances, could not urge with any degree of seriousness that the allegations levelled in the said F. I. R. did not disclose any offence at all.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 463 & 464‑‑‑Forgery and making a false statement‑‑‑Scope‑‑‑By virtue of provisions of Ss. 463 & 464, P.P.C. making of a false document to support a claim with intent to commit a fraud is an offence and playing deception or acting with dishonest or fraudulent intention in the making of a document is included in the offence of forgery contemplated by Ss.463 & 464, P.P.C.

(g) Practice and procedure‑‑‑

‑‑Civil litigation as well as criminal prosecution can proceed, in an appropriate case, simultaneously or one after the other.

Syed Muhammad Ahmad v. The State 1972.SCMR 85; Muhammad Akbar v. The State and others PLD 1968 SC 281 and Akhtar Hussain Zaidi v. The State PLD 1985 Lah. 662 ref.

(h) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 463, 464, 24 & 35‑‑‑Forgery‑‑‑Making a false statement‑‑‑Nature of transaction‑‑‑Determination‑‑‑Principles‑‑‑Dispute in the present case was not about any title to any property but the real issue was whether deception had actually been played by the petitioner and her co‑accused or not regarding the contents of the Power of Attorney which was executed and registered; apart from that a civil wrong may become a criminal wrong where an element of dishonest intention or knowledge crept into the matter in view of Ss.35 & 24, P.P.C.‑‑‑Held, it; such circumstances, a civil breach of trust could become a criminal breach of trust or a civil trespass was transformed into a Criminal trespass‑‑‑Transaction w4ich was otherwise civil in nature may involve a criminal offence if a false document within the, meaning of Ss.463 & 464, P.P.C. was prepared after playing deception‑‑‑Existence or otherwise of a document, interpretation of its contents or the rights and liabilities created by such document may be a subject fit for a civil suit but forgery by preparation of false document was out and out a crime attracting the domain of criminal law.

(i) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Penal Code (XLV of 1860), Ss.463 & 464‑‑‑Constitutional petition‑‑‑Quashing the F. I. R.‑‑‑Forgery‑‑‑Making a false statement‑‑­Numerous documents had been produced before High Court during the hearing of the Constitutional petition which prima facie tended to show that the conduct of the petitioner and her co‑accused in the matter might not have been above board, and thus, an allegation of dishonest intention or knowledge could seriously be alleged in the transaction necessitating holding of a proper investigation of the offences mentioned in the F.I.R. sought to be quashed by the petitioner‑‑‑All such documents though had been made a part of the record of the Constitutional petition but High Court, while refusing to quash the F.I.R. in circumstances, consciously refrained from referring to those documents in the present judgment and also from commenting upon various parts thereof lest such observations may prejudice either the police investigation of the F.I.R. in question or the civil suit which was already pending before a Civil Court.

(j) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Specific Relief Act (I of 1877), S.56(e)‑‑‑Penal Code (XLV of 1860), Ss.463 & 464‑‑‑Constitutional petition‑‑‑Quashing the F.I.R.‑‑­Forgery‑‑‑Making a false statement‑‑‑Matter also pending before a Civil Court‑‑‑Effect‑‑‑Held, when the same matter was pending before a Civil Court as well as in a Criminal Court, then sometimes, in an appropriate case, proceedings before the Criminal Court were stayed while awaiting decision of the Civil Court in that matter‑‑‑Such a stage would not arrive in a case where criminal matter was still at its investigation stage and the same had yet to reach a Criminal Court‑‑‑No law existed which required stoppage of investigation of a criminal case on the ground that matter involved therein was pending before Civil Court‑‑‑Intention of relevant law was that investigation of a criminal offence should not ordinarily be stopped and the same should be concluded and finalized at the earliest possible stage‑‑‑Such an approach was based upon public policy because due to stoppage of investigation the necessary inquiry may be delayed, the witnesses may die, or become unavailable, memories may fade, documents may disappear or lost or the relevant evidence may be tampered with or suborned‑‑‑Provision of S.56(e), Specific Relief Act, 1877, in such a context mandated that no injunction could be granted against criminal investigation.

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

‑‑‑‑S. 56(e)‑‑‑No injunction can be granted against criminal investigation.

(l) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Quashing the F.I.R.‑‑‑Petitioner seeking quashing F.I.R. in question to her extent as no other accused person had come forward to join in the relief prayed for‑‑‑Held, advisability of such a partial quashing of an F.I.R. was by itself quite suspect.

A.K. Dogar and Malik Asrar Elahi for Petitioner.

Ishfaq Ahmad Chaudhry for the State.

Aazar Latif Khan with Muqadas Tahira, D.D.A. for Respondents Nos. 7 and 8.

Date of hearing: 1st November, 2002.

P L D 2003 Lahore 12

Before Ali Nawaz Chowhan, J

Haji ALAM SHER and another‑‑‑Petitioners

Versus

Malik MUHAMMAD NAWAZ and 6 others‑‑‑Respondents

Writ Petition No. 15814 of 2002, heard on 16th October, 2002.

(a) Educational institution‑

‑‑‑‑ Examination result having been quashed no reliance could be placed on he same in law.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Factual position of the matter having been determined by the Tribunal without any misreading or non‑reading of evidence, High Court, under the Constitutional jurisdiction could not re‑open the controversy.

(c) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑Ss.18‑A [as added by Punjab Local Government Elections (Second Amendment) Ordinance (VII of 2000)] & 16‑‑‑Punjab Local Government Elections Rules, 2000, R.18(3)‑‑‑Election of Nazim and Naib‑Nazim ‑‑‑ Post election educational disqualification of joint candidate‑‑‑Casual vacancy‑‑Principle of sinker‑‑‑Applicability‑‑‑Provision of S.18‑A, Punjab Local Government Elections Ordinance, 2000 saves the position of the joint candidate who was found to be qualified and notwithstanding the fact that the Nazim and the Naib‑Nazim contested elections as joint candidates pursuant to S.16, Punjab Local Government Elections Rules, 2000, the casual vacancy was to be filled in singularly in accordance with the spirit of S.18‑A, Punjab Local Government Elections Ordinance, 2000‑‑‑Principles.

In the present case the successful candidate for the post of Naib­-Nazim, had the requisite qualification at the relevant time. But because he was a joint candidate with another one who was not found to be qualified the principle of sinker was applied and his election was also declared illegal and void. There are two stages where academic qualifications of a candidate, as prescribed by section 14 of the Punjab Local Government Ordinance, 2000, can be questioned. The first stage is before the Returning Officer at the time of scrutiny as provided by rule 18 of the Punjab Local Government Elections Rules, 2000, and secondly, thereafter, before a Tribunal. This was certainly a case where the disqualified candidate had been declared qualified at the scrutiny stage and the results were challenged post election before the Tribunal according to the procedure as provided by rule 16 of the Punjab Local Government Elections Rules, 2000.

Punjab Local Government Elections Rules, 2000 do not provide for a joint rejection after the nomination papers have been accepted. An amendment to the Punjab Local Government Elections Ordinance, 2000, has been introduced and section 18‑A has been added to the Ordinance vide Ordinance VII of 2000 which speaks of a casual vacancy.

Therefore, when the elections are challenged before an Election Tribunal and the Election Tribunal comes to, the conclusion that a candidate was to be disbelieved ab initio for contesting the election and declares his result to be unlawful, a casual vacancy occurs which has to be filled in as per the provisions of newly‑added section 18‑A and one cannot revert to the provisions of proviso to rule 18 of the Punjab Local Government Elections Rules, 2000. Even otherwise, it would be unfair to punish a joint candidate for a wrong on the part of another joint candidate after he receives the mandate from the public and there is no finger pointed out towards him with respect to his qualification. Section 18‑A, therefore, saves his position and notwithstanding the fact that the Nazim and the Naib‑Nazim contest elections as joint candidate pursuant to section 16, the casual vacancy is to be filled in singularly in accordance with the spirit of section 18‑A.

(d) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R.18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Scrutiny‑‑‑Question about excessive delegation with respect to R.18, Punjab Local Government Elections Rules, 2000 was left by the High Court to some other case as none of the parties were prepared on the point and the petitioner's counsel had also not taken any objection in that connection.

Rana Muhammad Sardar with Sh. Umar Draz for Petitioners.

Qazi Mohyuddin for Respondents.

Dates of hearing: 15th and 16th October, 2002.

P L D 2003 Lahore 17

Before Saqib Nisar, J

FRIENDS ASSOCIATES (RECD.) through Managing Partner, Lahore and 3

others‑‑‑Appellants

Versus

Messrs BINN BAK INDUSTRIES (PVT.) LIMITED through Chief Executive, Faisalabad and 9 others‑‑‑Respondents

First Appeal from Order No. 112 of 2002, decided on 14th May, 2002.

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

‑‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. I & 2‑‑‑Interim injunction, grant of‑‑‑Specific performance of agreement to sell‑‑‑Condition of deposit of balance consideration amount‑‑‑Agreement, in the present case, between the parties was not a simple agreement in nature of sale purchase of immovable property, rather it was for development of the suit land, enabling plaintiffs to develop the land and sell plots to third parties and to pay amounts to defendants from the sale proceeds of such sales, though within a specified period as stipulated in the agreement‑‑‑Trial Court granted interim injunction with a condition to deposit the balance consideration amount‑‑­Validity‑‑‑Not rule of law that essentially in all the cases of specific performance, while granting temporary injunction to the plaintiff, the Court should impose condition of deposit of balance consideration‑‑‑Imposing of such condition depended upon facts and circumstances of the case enabling the Court to exercise its discretionary equitable relief‑‑‑As the defendants prima facie were found at fault in not handing over the entire suit land to the plaintiffs for the purpose of such development, imposition of condition for the deposit of the balance consideration in the facts and circumstances of the case, .would be harsh and against the settled rules for the exercise of discretion‑‑‑Plaintiffs had established existence of prima facie case in their favour, balance of convenience was alao in their favour, for it was they who were to suffer irreparable loss in case temporary injunction was not issued and the condition of deposit of the remaining amount of consideration was not legally justified‑‑‑Present agreement being not in the nature of direct sale but an agreement for development of the land into plots and thereafter sale of the developed plots and payment of the amount of consideration from the sale proceeds, therefore, the order of deposit of Rs.42 crores amounted to denial of the relief of temporary injunction to which the plaintiffs were entitled‑‑‑High Court set aside the condition of deposit of balance consideration amount imposed by the Trial Court at the time of passing the interim injunction‑‑‑Interim injunction was allowed in circumstances.

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

‑‑‑S. 12‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑‑Interim injunction, grant of‑‑‑Prima facie case‑‑‑Non‑delivery of possession‑‑‑Onus to prove‑‑‑Plaintiffs asserted that the defendants did not deliver possession of the suit land to them as per terms and conditions of the agreement to sell‑‑­Effect‑‑‑Onus was on the defendants to explain before the Trial Court to justify their failure to deliver possession of the suit land but in order to determine existence of prima facie case, the factum of non‑delivery of possession of the suit land could be considered in favour of the plaintiffs.

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

‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Interim injunction‑‑‑Irreparable loss‑‑‑Amount to be recovered was specifically ascertainable‑‑‑Effect‑‑‑Such was not a case of the nature that compensation or loss could not be ascertained in terms of money if temporary injunction was issued.

Mehar Zulfiqar Ali Babu and others v. Government of Punjab through Secretary, Local Government and others 1997 SCMR 117; Manzoor Ahmed and others v. Hamid Shah Gilani and others 1997 SCMR 1443; Fateh Muhammad v. Muhammad Hanif PLD 1990 Lah. 82; Shama Enterprises (Pvt.) Ltd, v. Malik Ghulam Sarwar and others 1989 MLD 21; Ferozuddin and others v. Tien Ying Lee and others 1987 MLD 2035; Muhammad Banaras Khakan v. Miss Rubina Chaudhry and others 1997 CLC 997; Balquees Zaman Khan and others v. Tahir Mahmood Butt 1991 CLC 1507; Wiqar Avais v. Raja Muhammad Shafi Janjua and others 1992 CLC 8 and Muhammad Nazir v. Yaqoob Khan and others 1994 CLC 12 ref.

Ahmad Waheed Khan for Appellants.

Khawaja Saeed‑uz‑Zafar and Saleem Baig for Respondents.

Date of hearing: 14th May, 2002.

P L D 2003 Lahore 27

Before Syed Zuhid Hussain, J

SAZIA SULTANA‑‑‑Petitioner

Versus

RAZIA BEGUM‑‑‑Respondent

Civil Revision No. 1558 of 1999, decided on 12th November 2002.

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

---O. XLI, Rr. 30 & 17‑‑‑Judgment in appeal‑‑‑Default by appellants‑‑Neither the counsel for the appellants was present or heard nor the counsel for respondents was in a position to argue the case‑‑‑Decision of appeal by District Judge on merits in view of direction by the Member, Inspection cam of the High Court to the effect that the appeal be decided by as of specified date‑‑‑‑Validity‑‑‑‑Held, remedy of appeal, in particular, the first appeal. is a right which a suitor is entitled to avail under the law i.e. Civil Procedure Code itself‑‑‑When an appeal is preferred by a party an indefensible right of hearing vests in him, which cannot be stultified or transgressed except in accordance with law‑‑‑Direction of the nature, issued by the Member. Inspection Team of the High Court, which was at the most administrative in nature could not be made a basis for denying the appellants the right of hearing as envisaged by O.XLI, R.30, C.P.C.‑‑‑Court which is charged with onerous duty and responsibility of administering justice is expected to maintain a balance so that neither the matter is delayed unnecessarily nor its disposal is effected in such a hasty manner as may be violative of the law and fairness‑‑‑Judicial power or jurisdiction to administer justice in accordance with law cannot be abdicated merely to honour any executive or administrative instruction or directive‑‑‑Court, in order to keep the streams of justice clean and unpolluted, is expected to shun every extraneous instruction/direction and act purely in accordance with law‑‑­Direction of the Member, Inspection Team of the High Court can only be regarded as directory, enabling the Court to expedite the hearing/decision, but in no case can be given supremacy over the explicit legal provisions‑‑‑If the counsel for appellants was not in a position to advance arguments on the date fixed due to his engagements before High Court the case could be adjourned to the next day even on payment of costs in order to compensate tote other side for any inconvenience‑‑‑Appeal, thus, could not be dismissed by the District Judge on merits, which exercise undertaken by him was futile and 'violative of law.

(b) Administration of justice‑‑

‑‑‑‑‑Justice delayed is justice denied‑‑‑Justice rushed is justice crushed‑‑‑Court which is charged with onerous duty and responsibility of administering justice is expected to maintain a balance so that neither the matter is delayed unnecessarily nor its disposal is made in such a hasty manner as may be violative of the law and fairness‑‑‑Judicial power or jurisdiction to administer Justice in accordance with law cannot be abdicated merely to honour any executive or administrative instruction or directive‑‑‑Court, .in order to keep the streams of justice clean and unpolluted, is expected to shun every extraneous instruction/direction and act purely in accordance with law.­

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

‑‑‑‑Art. 203‑‑‑Object, rationale and underlying idea discernible from Art‑203 of the Constitution‑‑‑Word "control" occurring in Art.203‑‑‑Connotation.

The object, rationale and underlying idea discernible from the reading of Article 203 of Constitution of Islamic Republic of Pakistan, 1973 appears to be to secure judicial independence by making subordinate Courts completely free from executive and extraneous control. It has vested in the superior Court in the hierarchy i.e. High Court, the supervision and control Of the Courts subordinate to it. The word "control" is comprehensive enough to include the general superintendence of the working and administrative control over the members of the subordinate judiciary. Such a control and supervision should be aimed at the advancement of the judicial independence and by no means to impede or frustrate the very object and purpose.

Article 203 of the Constitution merely empowers the High Courts to supervise and control all Courts subordinate to it. The power is meant to enable the High Court to discharge its duties as a superior Curt towards fair and proper administration of justice. The High Court has the authority to check and prevent dereliction of duty and to stop as well as correct violations of law. "Superintendence" includes the power to guide, advise and encourage Judges of the subordinate Courts. Supervision and control is for making and keeping the administration of justice pure and not to help any particular party. It is not contemplated in the terms of the Article that the High Court should issue an order against a party to a cause as such.

The High Court under this Article is concerned with its lower Courts only and has to keep an eye on them so that they may not fail to do their own duties apart from the problems and interests of the parties, such duties are to attend the Courts regularly and punctually; to hear and decide those cases only which fall within their jurisdiction and not to hear and decide those which may be ousting their jurisdiction; to obey legitimate directions of their superior authorities; to know the law and to conduct themselves like judicial officers. Their judicial orders and judgments are subject to scrutiny, on appeal or revision, in accordance with the provisions that confer those jurisdictions on Courts of various grades.

Karim Bakhsh v. Mst. Mubarik Jan PLD 1970 Pesh. 169; Emperor v. Tarapore AIR 1940 Sindh 230; Abdul Rehman v. Mst. Chaman Ara PLD 1972 Kar. 164; Sharafat Afaridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404 and Government of Sindh through Chef Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105 ref.

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

‑‑‑‑O. XLI, Rr.17, 19 & 30‑‑‑Dismissal of appeal on appellant's default‑‑­Procedure‑‑‑If the Court does not choose to dismiss the appeal, the same has to be adjourned, but R.17, O.XLI, C.P.C. nowhere empowers the Court to render a decision on merits in the absence of the appellant‑‑‑Decree on merits is envisaged by O.XLI, R.30 and hearing of both the sides is the condition precedent for such a decree.

Options legally available to the Court under provisions of Rule 17 of Order XLI, C.P.C. are clear by themselves, which only enable the Court to dismiss the appeal in default. If after admission of the appeal for regular hearing, on the adjourned date of hearing, the appellant is absent, under Order XLI, Rule 17, a discretion is conferred on the Court to dismiss the appeal. The exercise of such power under Order XLI, Rule 17, C.P.C. is not intended to be imperative but is discretionary. The dismissal for want of prosecution under Order XLI, Rule 17, C.P.C. is not a decision on merits, and under Order XLI, Rule 19, on application of the appellant, the Court can re‑admit the appeal on such terms as to costs or otherwise as the Court thinks tit, provided the appellant shows sufficient cause for his non‑appearance. On the other hand, if the appellant appears and the respondent does not appear, the appeal may be heard ex pane. If the Court does not choose to dismiss the appeal, it has to be adjourned, but Order XLI, Rule 17, C.P.C. nowhere empowers the Court to render a decision on merits in the absence of the appellant. A decree on merits is envisaged by Order XLI, Rule 30 and hearing of both the sides is the condition precedent for such a decree.

M. Muhammad Sadiq and another v. Punjab Road Transport Board through its Managing Director 1991 SCMR 2321: Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678: S.M. Abdullah & Sons, v. Pakistan Mercantile Corporation Ltd. and another PLD 1976 Kar. 268; Muhammad Tufail and 5 others v. Din Muhammad through his Legal Representatives PLD 1992 Lah. 152; Prince Sheikh Abdul Qadir v. Nawab Sheikh Nasiruddin and 7 others PLD 1993 Kar. 216 and Malik Muhammad Ahsan and others v. Mst. Hameeda Begum 1999 MLD 1941 ref.

Barkat Ullah v. The State 1997 SCMR 274 distinguished.

Qazi Zahid Hussain for Petitioner.

Syed Kazim Bokhari for Respondent.

Date of hearing: 12th November, 2002.

P L D 2003 Lahore 35

Before Saqib Nisar, J

MUHAMMAD SHARIF and another‑‑‑Petitioner

Versus

Rana ABDUR REHMAN and 7 others‑‑‑Respondents

Writ Petition No.22178 of 2001, heard on 3rd June, 2002.

(a) Punjab Local Government Elections Rules, 2000‑‑

‑‑‑R. 83‑‑‑Declaration of election void as a whole‑‑‑Election Tribunal jurisdiction of‑‑‑Scope‑‑‑If Election Tribunal is satisfied that the election has been materially affected by reasons of the failure of any person to comply with the provision of the Punjab Local Government Elections Ordinance, 2000, the election can be declared void as a whole under the provisions of R.83 of Punjab Local Government Elections Rules, 2000.

(b) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑Preamble‑‑‑Punjab Local Government Elections Ordinance, 2000‑‑­Preamble ‑‑‑Object‑‑‑Basic purpose and object of Punjab Local Government Elections Ordinance, 2000, is to provide for holding elections for the establishment of Local Government in the Province.

(c) Words and phrases‑‑

‑‑‑‑"Election"‑‑‑Connotation‑‑‑"Election" means an act of choosing or selecting one, or more from a greater number of persons; the selection of a person/persons from a specified class to discharge certain duties attached to an office‑‑‑Election is an expression of choice by the voters of a body politic or means by which a choice is made by the elector.

(d) Words and phrases‑‑

‑‑‑‑"Elector"‑‑‑Defined‑‑‑"Elector" is a person who is a duly qualified voter the one who has a vote in the choice of ‑any candidate to an office.

(e) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 2(3)‑‑‑Punjab Local Government Elections Rules, 2000, Rr.34 & 83‑‑‑­Non‑providing of ballot paper to elector‑‑‑Effect‑‑‑In the conduct of election, an elector is a key player and without enabling him to validly exercise his right of franchise, there can be no election at all‑‑‑When an elector approaches a Presiding Officer, it is his duty to issue him the ballot paper‑‑­Failure to provide the ballot paper amounts to failure in complying with the provisions of Punjab Local Government Elections Ordinance, 2000, arid R.34 of Punjab Local Government Elections Rules, 2000‑‑‑Such failure brings the case within the mischief of R.83 of Punjab Local Government Elections Rules, 2000.

(f) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 8‑‑‑Punjab Local Government Election Rules, 2000, Rr. 34 & 83‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Consitutional petition‑‑‑Election dispute‑‑‑Declaration of election void as a whole‑‑‑Non‑providing of ballot papers for the seat of peasants‑‑‑Dispute between the parties was that on the day of polling, there was shortage of ballot papers for the seat of peasants and a large number of voters who had come to cast votes were prevented to do so‑‑‑Voters were entitled to simultaneous issuance of ballot papers for the election of Nazim/Naib‑Nazim, peasants, labour seats and some others for which the election was being conducted on the sane day‑‑‑Election Tribunal, keeping in view the shortage of ballot papers, declared the election void as a whole‑ ‑‑Contention of the petitioners was that the shortage of ballot papers for the scat of peasants could not affect the election for the seat of Nazim and Naib‑Nazim‑‑‑ Validity‑‑‑ If there was any shortage of the ballot papers of one category, the Presiding Officer should not have issued ballot papers for the other, even if for that category the papers were available‑‑­Petitioners failed to produce in evidence any member of the election staff of the relevant polling stations, the polling agents of even to summon the record of the Returning Officer or the Election Commission to establish and disprove that sufficient number of ballot papers were available in all the categories ‑‑‑Election Tribunal after proper appraisal of evidence and on the rule of preponderance had reached a factual conclusion about the shortage of ballot papers as well as number of voters returning without casting their votes‑‑‑Such finding of fact when not shown to be perverse, result of error in reading the record, could not be interfered in the Constitutional jurisdiction‑‑‑ High Court declined to interfere with the order passed by the Election Tribunal ‑‑‑Constitutional petition was dismissed in circumstances.

(g) Punjab Local Government Elections Rules, 2000‑‑

‑‑‑‑Rr. 29 & 83‑‑‑Shortage of ballot papers ‑‑‑Presiding Officer, duty of‑‑Scope‑‑‑When it was proved that the ballot papers were short, it was duty of the Presiding Officer to have reported to the District Returning Officer about stoppage of polls under R.29 of Punjab Local Government Elections Rule, 2000‑‑‑Such failure on the part of the Presiding Officer would bring the case within the mischief of R.83 of Punjab Local Government Elections Rules, 2000, and the election must be declared voids a whole in circumstances.

(h) Punjab Local Government Elections Rules, 2000‑‑

‑‑‑R. 76‑‑‑Civil Procedure Code (V of 1908), O.XIV, R.1‑‑‑‑Election petition‑‑‑Non‑framing of issues‑‑‑Panics without any objection participated in the trial, examined their witnesses and cross‑examined them‑‑‑None of the parties took the exception that because of non‑framing of issues, the trial could not proceed‑‑‑Effect‑‑Where the parties were well‑aware as to what was the exact nature of controversy between them and what facts were required to be proved or disproved, non‑framing of specific issues had not caused any prejudice to the parties in circumstances.

Fazal Muhammad Bhatti and others v. Mst. Saeeda Akhtar and others 1993 SCMR 2018 ref.

(i) Punjab local Government Elections Rules, 2000‑‑

‑‑‑R. 76(b)‑‑‑Failure to direct to file list of witnesses—Effect‑‑‑ Such direction under R.76(b) of Punjab Local Government Elections Rules, 2000, is procedural and directory in nature‑‑‑Non‑compliance of such direction, when not shown to have affected the trial, is of no legal significance.

(j) Punjab Local Government Elections Rules, 2000‑‑

‑‑‑‑R. 71‑‑‑Election petition‑‑‑Necessary patties‑‑‑Election of Nazim and Naib‑Nazim was declared void as a whole on account of shortage of the ballot papers for the seat of peasants‑‑‑Returned candidates for the seat of Nazim and Naib‑Nazim contented that as the election was declared void due to the shortage of ballot papers for the seat of peasants without impleading candidates for such seat, the election petition was incompetent‑‑‑Validity‑‑‑‑Elect ion petitioner was supposed to implead the candidates with regard to the election which was under challenge‑‑‑Since the candidates for other category, in the present case, were neither necessary nor proper party, their non‑impleadment in no manner had any adverse effect upon the election petition‑‑‑Constitutional petition was maintainable in circumstances.

Shaukat Ragiq Bajwa and Rana Muhammad Arif for Petitioners.

Ch. Muzzamal Khan for Respondents.

Date of hearing: 3rd June, 2002.

P L D 2003 Lahore 43

Before Asif Saeed Khan Khosa, J

PAKISTAN LAWYERS FORUM‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN and 2 others ‑-- Respondents

Writ Petitioner No. 8571 of 2002, decided on 23rd May, 2002.

Referendum Order (Chief Executive's Order 12 of 2002)‑‑

‑‑‑Arts. 9 & 4(1)‑‑‑Constitution of Pakistan (1973), Arts.213, 218, 48 & 199‑‑‑Constitutional petition‑‑‑Election Commission by virtue of the provisions of Art. 9 of the Referendum Order, 2002 was entrusted with the task of ensuring that the referendum was conducted justly and fairly in accordance with provision of Art.9 of the Referendum Order, 2002 and according to Art.4(1) of the said Order a consequence of a positive result of the referendum was to be that the people of Pakistan shall be deemed to have given the democratic mandate to General Pervez Musharraf to serve the nation as President of Pakistan for a period of five years"‑‑‑Validity ‑Petitioner maintained that the sanctity of ballot had grossly and grievously been violated in the referendum and thus the Chief Executive as well as the Chief Election Commissioner had failed to discharge the trust, reposed in them by the nation; that democracy sans sanctity of ballot was merely illusory and a "democratic mandate" flowing from a polluted source could not be treated as sacrosanct; that there was alleged rigging and massive fraud with the nation" had taken place on the day of referendum and thus holding of referendum be declared to be a deceitful, fraudulent and an incredibly horrendous criminal act perpetrated on the people of Pakistan; that in the face of unimpeachable evidence of manufactured, engineered, stage-managed, farcical exercise on the day of referendum it had been found that Chief Executive and the Chief Election Commissioner were incapable of holding free and fair elections; that the High Court had power to issue guidelines and to direct that even though the military coup of 12th October, 1998 stood validated under the doctrine of state necessity yet the Chief Executive had become disqualified to hold the reins of the Government anti steer the nation towards restoration of democracy; that the national as well as international media, besides the informed public opinion as well as the public at large, had concurred in their conclusion about massive rigging and violation of the sanctity of ballot during the referendum denuding the said referendum of its legal and moral validity; that High Court could take judicial notice of contemporaneous events as well as of newspaper reports and articles in that regard;. that the facts which had become public and general could also be taken notice of by the Court and general knowledge about the same could be utilized before the Court; that recording of evidence, in the present case, vas not necessary on account of availability of sufficient material in support of the contentions of the petitioner; that the Constitution of the country was still intact anti by virtue of the law declared by the Supreme Court in the case of Syed Zafar Ali Shah and others v. General Parvez Musharraf Chief Executive of Pakistan and others PLD 2000 SC 869 all the actions of the present Government could be examined by High Court in respect of their validity and that Chief Executi4e of Pakistan and the Election Commission had lost the confidence of the people of Pakistan and they did not expect fair .,aid free holding of the general elections under their supervision and control‑‑‑Held, points involved in the constitutional petition were surely of great public importance as the same not only touched upon the democratic Constitutional character of the country but also related to the citizens' constitutionally and legally ensured democratic rights‑‑‑High Court, in circumstances admitted the constitutional petition to a regular hearing.

Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869; Qazi Hussain Ahmad v. General Pervez Musharraf, Chief Executive and another PLD 2002 SC 853; Begum Nusrat Bhutto v. Chief of Army Staff and another PLD 1977 SC 657; Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali. Khan, M.N.A. PLD 1976 SC 57: Bhagwati Charan Shukla v. Provincial Government, C.P. & Berar AIR 1947 Nag. 1; Mrs. Keays Byrne v. The Settlement Commissioner, Rawalpindi and others PLD 1963 Lah. 88; Bumo Ragazzi and others v. The Registrar of Joint Stock Companies, Karachi PLD 1959 Kar. 48 and Shahzada Muzaffar Ali v. Mst. Agha Begum and another PLD 1968 Lah. 372 ref.

A.K. Dogar for Petitioner.

Dates of hearing: 21st, 22nd and 23rd May, 2002.

P L D 2003 Lahore 48

Before Syed Zahid Hussain, J

NIAZ AHMAD KHAN‑‑‑Petitioner

Versus

KISHWAR BEGUM and 19 others‑‑‑Respondents

Revision Petition No.2498 of 1994, heard on 13th June, 2002.

(a) Res judicata‑‑‑

‑‑‑‑Principle of ‑‑‑Scope‑‑‑Where any "issue" covering substantially the same matter has once been heard and decided by a former Court, the same could not be agitated or tried again in a subsequent suit.

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

‑‑‑‑S. 11, & O.XVII, R.3‑‑‑Res judicata, principle of ‑‑‑Applicability‑‑­Pleadings at variance in both the suits‑‑‑Controversy had substantially been in issue between the same parties in the former suit dismissed under O.XVII, R.3, C.P.C. ‑‑‑Both the Courts below had dismissed the suit on the basis of doctrine of res judicata‑‑‑Plea raised by the plaintiff was that principle of res judicata was not applicable as the previous suit had not been decided on merits and the pleadings of the parties were at variance in both the suits‑‑­Validity‑‑‑Where the Court proceeded to decide the suit under O.XVII, R.3, C.P.C. it was a decision on merits and a fresh suit on the same cause of action was barred under S.11, C.P.C.‑‑‑Plaintiff having himself had filed the earlier suit which was dismissed under O.XVII, R.3, C.P.C., and the judgment was not challenged any further, the plaintiff was bound by such determination irrespective of the pleadings of the parties‑‑‑Determination of the "issue" is found mentioned in S. 11, C.P.C. which issue had stood determined in the former suit‑‑‑View taken by both the Courts below could neither be regarded illegal nor suffering from any material irregularity.

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

‑‑‑‑S. 11‑‑‑Res judicata‑‑‑Dismissal of suit on principle of‑‑‑Dismissal of suit on the doctrine of res judicata could not be termed as the decision based on technicalities.

Habibur Rehman v. Abdul Rehman and 3 others 1987 CLC 195; Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Inayat Ullah v. Khan Begum and others PLD 1958 (W . P.) Lah. 686 distinguished.

Hasnat Ahmad for Petitioner.

Rana Nasar Ullah Khan for Respondents Nos. 1 to 17.

Nemo for the Respondents Nos. 18 to 20.

Date of hearing: 13th June, 2002.

P L D 2003 Lahore 51

Before Ali Nawaz Chowhan, J

NISAR AHMAD----Petitioner

Versus

JUDGE FAMILY COUR—RAWALPINDI and 5 others‑ ‑Respondents

Writ Petition No.2680 of 2001, decided can 29th October; 2002.

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

‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973)--Art. 199, Constitutional petition‑ ‑Decree for maintenance of wife and children with effect from 1992, passed on 15‑11‑1995‑ ‑Execution of decree failed and petitioner (husband) was sent to civil prison and later was released on bail but further opportunity given to him proved futile and bail was cancelled and he was again arrested‑‑‑Petitioner approached the High Court in its Constitutional jurisdiction and he was allowed interim bail subject to furnishing bail bond in the sum of Rs.50.000 with a surety; order of granting he was, however, in the background of the compromise made before the High Court that it released on bail he shall be discharging his liability under tile decree--­Petitioner informed the High Court that he will be getting his G.P. Fund shortly which he shall be depositing before the executing Court and further that he shall be paying his debts under the decree in instalments as he was not in a position to pay the smite in lump sum‑‑Held rewarding his prayer that he decretal amount be received through instalments. He may repeat the prayer before the executing Court, who may review the same pragmatically and keeping in view the economic condition of the petitioner--Petitioner, having undertaken to pay the gratuity amount which he would receive within a period of six weeks from the date of present judgment it was considered to he proper to extend his interns; bail until 14th of December 2002.‑‑If the Petitioner made part payment, he would earn the sympathy of the executing Court for extending to him such concession for discharging his liabilities as are proper but if he failed, that he would be at the mercy of the executing Court as the present order of the High Court extending his interim bail shall abate‑‑‑Constitutional petition was disposed of accordingly.

Raja Ghazanfar Ali for Petitioner.

Syed Zafar Ali for Respondents.

Date of hearing: 29th October, 2002.

P L D 2003 Lahore 53

Before Mrs. Fakhar-Nisa Khokhar, J

Mst. ZUBADIA KHATOON---Petitioner

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 17741 of 1998, decided on 18th November, 2002.

Constitution of Pakistan (1972)---

----Arts. 9 & 199---Constitutional petition---Security of person---Financial aid from Baitul Maal---Darul Aman being an institution providing shelter to homeless and destitute women was faced with the issue of security of the womwn taking refuge in the institution and also required an amount of Rs. 20 per woman per day for the maintenance of the women—Women who sought shelter at Darul Aman faced very controversial and critical situation and enmity between two litigating parties and sometimes they were under extreme danger of loss of human life---Institution was established under a private organization but from the last decade it was being patronized by the Social Welfare Department of Government, high ranking officers of Government who could conduct raids and checks and examine the working of the institution---Grievance of he institution was that the Government had not provided security arrangements to the women seeking shelter in the institution and financial aid for a sum of Rs. 20 per woman per day be provided to the institution---Contention of the Authorities was that they had no funds to provide such arrangements –Validity—State is responsible for safeguarding liberty, freedom and human life of an individual---Safety of the shelter-less woman was a duty cast upon the Government, High Court, therefore directed the Authorities to make available the police protection to the institution after amending the relevant rules and to provide security measures to Darul Aman and all such institutions established for the purpose and Government should pay a sum of Rs. 20 per woman per day who were provided shelter at Darul Aman and the amount be paid from Bailtul Mall—Constitutional petition was allowed accordingly.

Miss Alia Neelam, Shamsa Ali and Mian Muhammad Saeed for Petitioner.

Imtiaz Elahi State Counsel for Respondents.

Date of hearing: 12th November, 2002.

P L D 2003 Lahore 55

Before Ali Nawaz Chowhan, J

Col. MUHAMMAD SALEH‑‑‑Petitioner

Versus

GOVERNMENT OF PAKISTAN‑‑‑Respondent

Writ Petitions Nos.977 of 1993 and 1237 of 1999.

Capital Development Authority Ordinance (XXIII of 1960)‑‑

‑‑‑‑S. 22‑‑‑Capital of the Republic (Determination of Area) Ordinance (VI of 1963), Preamble‑‑‑Constitution of Pakistan (1973), Arts. 239 & 199‑‑­Constitutional petition‑‑‑Boundaries of the capital area‑‑‑Plea for inclusion of certain villages lying on the boundary between District Rawalpindi and Islamabad in the capital territory‑‑‑Validity‑‑‑Boundaries which had already been settled in view of the acquisition of land under S.22, Capital Development Authority Ordinance, 1960 and Capital of the Republic (Determination of Area) Ordinance, 1963 and other relevant laws, could not he now altered without following the provisions of Art.239, Constitution of Pakistan and therefore any directive or notification requiring any change could not be enforced now‑‑‑Petitioner, in his alternate plea stated that even with respect to the boundaries fixed and determined by law, he had an objection because these had not been correctly drawn physically on the site which had led to a lot of confusion and emphasized that boundaries were only made in the plans and in the papers‑‑‑High Court, while disposing of the Constitutional petition observed that the Capital Development Authority and the District Coordination Officer of Rawalpindi should hold a meeting for determining a date for joint demarcation of the boundaries in accordance with law and to effect the physical demarcation of. the boundaries within a period of three months from the announcement of the judgment while submitting a compliance report to the High Court ensuring that the same reaches the High Court by the Ist of March, 2003.

P L D 2003 Lahore 60

Before Ali Nawaz Chowhan and Tanvir Bashir Ansari, JJ

JUMA KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal Nos.43, Criminal Revision No.42‑A and Murder Reference No. 130 of 1998, heard on 13th November, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss: 302(b), 324 & 84‑‑‑Appreciation of evidence‑‑‑Doctrine of "diminish responsibility"‑‑‑Applicability‑‑‑Mitigating circumstance‑‑‑Accused had shot at the deceased and the prosecution witnesses on being disturbed by their game of cricket‑‑‑Occurrence was admitted and there were two versions‑‑­Accused had suffered only simple injuries‑‑‑Neither the door of the house of accused was broken nor he was assaulted at his house to given him a cause for shooting at the deceased and others in self‑defence and he had not substantiated such plea either through defence evidence or through his own statement under S.340(2), Cr.P.C. Accused admittedly had not brought his case under the provisions of S.84, P.P.C., but he was trying to raise the plea of "diminished responsibility" which was not available under S.84, P.P.C.‑‑­Defence before the Trial Court had attempted to procure the record about the mental abnormality of accused and applied for it even though at a belated stage, but no further action on it was taken‑‑‑Psychiatrist view on the mental condition of accused in the year 1996 had come on record which was not exhibited, but it could be looked into as it did help the Court in appreciating the conditions of mens rea or automatism and also saved the parties from a remand orders and further delay in the case‑‑‑No motive for the occurrence existed‑‑‑Even if no cricket ball had fallen into the house of accused and no door of his house was broken causing him procation, but it was on account of the abnormality with which he was suffering which put him out of control and he committed the act‑‑‑Since such probability existed, the doctrine of "diminished responsibility" was applied and accepted as a mitigating circumstance‑‑‑Conviction of accused were consequently maintained, but his sentence of death was reduced to imprisonment for life in circumstances.

M'Naghten's case (1843) 10 CI &‑F 200; Byrne's case (1960) 2 QB 396; Vinagre's case (1979) 69 Cr. App. R 104; Reynolds' case (1988) Grim. LR 679 and Muhammad Shafi v. The State PLD 1962 SC 472 ref.

(b) Criminal trial‑‑

‑‑‑‑Diminished responsibility, doctrine of‑‑‑Concept of the degree of criminal responsibility of a person has undergone progressive and far‑reaching changes because of the advancement of medical and psychiatrist sciences‑‑­Law of the country which is based on the M'Naghten Rules, however, has remained static and not dynamic‑‑‑Life is becoming more and more complicated, difficult and stressful with the result that more and more people are suffering from mental diseases of various degrees‑‑‑Acceptance of the doctrine of "diminishes' responsibility" and giving same the shape of law is, therefore, certainly a requirement which has been overlooked‑‑‑English law had taken help from the Scottish Doctrine of Diminished Responsibility and introduced same into law now known as Homicide Act, 1957, whereby the principle of M'Naghten Rules had been expanded which is certainly more progressive and gives wider meaning of "defective reasoning" ‑‑‑If laws in Pakistan remain stagnant are not developed, Pakistanis can always look towards more progressive views of other countries for keeping themselves afloat in the comity of civilized world and can use these views of the welfare of our people.

M'Naghten's case (1843) 10 CI & F 200; Byrne's case (1960) 2 QB 396; Vinagre's case (1979) 69 Cr. App. R 104; Reynolds' case (1988) Grim. LR 679 and Muhammad Shafi v. The State PLD 1962 SC 472 ref.

Mr. Jabbar for Appellant.

Raja Ayub for the State.

Sheikh Waqar for the Complainant.

Date of hearing: 13th November, 2002.

P L D 2003 Lahore 71

Before Asif Saeed Khan Khosa, J

AKHTAR HAYAT and another ‑‑‑Petitioners

Versus

THE STATE and others‑‑‑Respondents

Criminal Revision No.505 of 2002, decided on 12th December, 2002.

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

---‑S. 239‑‑‑Penal Code (XLV of 1860), S. 302/34‑‑‑Joint trial of two sets of accused persons, one or the other set of whom is alleged to have committed the murder is illegal.

Ali and others v. The Crown PLD 1954 Lah. 183 ref.

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

--‑S. 540‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Accused person of one set cannot be allowed to be summoned as a witness so as to depose against the other set of accused persons in the same cases.

Abdul Rashid and another v. The State 1970 PCr.LJ 722 a treed Hussain v. The State and another 1993 MLD 2402 ref.

Ch. Haider Bukhsh for Petitioners.

Bashir Abbas Khan for Respondents Nos. 2 to 4.

Ch. Muhammad Siddique Minhas for the State.

Date of hearing: 12th December, 2002.

P L D 2003 Lahore 73

Before Ch. Ijaz Ahmad, Syed Jamshed Ali and Pervaiz Ahmad, JJ

Malik ASGHAR and 3 others---Petitioners

Versus

GOVERNMENT OF PUNJAB through Secretary, Transport, Civil Secretariat, Lahore and 3 others---Respondents

Writ Petitions Nos.2418, 718, 2449 of 2001, 19239 and 19240 of 2002, decided on 10th December, 2002.

(a) Provincial Motor Vehicles Ordinance (XIX of 1965)---

---S. 69-A---Background and object of legislation of S.69-A, Provincial Motor Vehicles Ordinance, 1965.

After dissolution of the Punjab Road Transport Corporation the Punjab Government planned to improve the facilities to general public. At east in major cities, the transport facilities were inadequate and the passengers, were forced to travel in vehicles in an unsafe and disgraceful tanner. On account of tremendous growth of urban population and the consequent increase in the vehicular traffic on the roads it became imperative for the Government to explore possibilities of replacing the number of low occupancy vehicles with large occupancy vehicles and to provide a dignified, comfortable and reliable means of transport to the general public. This was the background in which section 69-A was added to the Provincial Motor Vehicles Ordinance, 1965 initially by way of Ordinance No. IX of 1999. According to subsection (2) of the said section "franchise" was defined to mean a permit granted to an operator for operation of stage carriages with a carrying capacity of 70 or more passengers by a Bus Service providing and maintaining the prescribed facilities on routes in respect of which it is declared by the Government that only a Bus Service of the nature referred to above shall be allowed to operate stage carriage thereon to the exclusion of all other stage carriages. The object clearly was to substitute large capacity vehicles with low capacity vehicles such as wagons and mini buses. Section 69-A(4) provides for cancellation of all existing stage carriage permits in respect of a franchised route.

(b) Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S. 69-A---Franchise---Permit contemplated by the Ordinance is in fact a licence to operate a transport and the Government is fully competent to regulate the business of transport---Term "regulate" ---Connotation.

The permit contemplated by the Provincial Motor Vehicles Ordinance, 1965 is in fact a licence to operate a transport and the Government is fully competent to regulate the business of transport.

To regulate is to fix, establish, or control, to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws. The power of Government to regulate commerce is-the power to enact all appropriate legislation for its protection or advancement to adopt measures to promote its growth and insure its safety; to foster, protect, control, and restrain. It is also power to prescribe rule by which commerce is to be governed, and embraces prohibitory regulations. 'Regulate' means to govern or direct according to rule or to bring under control of constituted authority, to limit and prohibit, to arrange in proper order, and to control that which already exists.

The power to regulate necessarily includes even a power to prohibit.

The power to regulate implies, a power to foster, to protect, control and restrain.

Black's Law Dictionary; Messrs East and West Steamship Co. v. Pakistan through Secretary to Government of Pakistan PLD 1958 SC (Pak.) 41 and National Labour Relations Board v. Jones and Laugh in Steel Corporation 302 US 1 ref.

(c) Provincial Motor Vehicles Ordinance (XIX of 1965)---

---S. 69-A---Constitution of Pakistan (1973), Arts. 18 & 199--­Constitutional petition---Franchise, grant of---Freedom of trade, business or profession---Question of monopoly---Grant of franchise under S.69-A, Provincial Motor Vehicles Ordinance, 1965 to a selected agency in a prescribed manner after inviting tenders through public notices in the newspapers does not amount to creation of a monopoly and S.69-A of the Ordinance and the action taken thereunder are fully protected by Art. 18 read with, its proviso (a) of the Constitution--- -Principles.

A perusal of section 69-A of the Provincial Motor Vehicles Ordinance, 1965 shows that it prescribes a qualification for grant of a franchised route, i.e. operation of a stage carriage with a capacity of 70 passengers or more. It does not eliminate a person doing the transport business to claim a franchise if he could show that he fulfils the aforesaid qualification. The transport business is already regulated by the Provincial Motor Vehicles Ordinance, 1965 inasmuch that transport operations for commercial purposes require a permit by the competent authority.

Fundamental Right iii Article 18 of the Constitution of Pakistan (1973) pertaining to freedom of trade is subject to such qualification as may be prescribed by law which is a clog on the said fundamental right.

Fundamental right guaranteed by Article 18 of the Constitution is not absolute in terms. One of the exceptions specified in the said Article 18 is regulation of any trade or profession by licensing system.

The power to regulate necessarily includes even a power to prohibit.

The power to regulate implies, a power to foster, to protect, control and restrain.

If the Constitution gives to the Legislature the power to regulate a trade by a licensing system, it must follow that the power to prohibit vests in the Legislature insofar as the trade under such system may only be carried only by the licensed persons or corporations.

Not only Article 18 subjects the fundamental right therein to such qualification as may be prescribed by law, there is a specific authority to regulate any trade or profession by licensing system. The regulation of this trade includes a policy as to the capacity of the vehicles to be deployed on roads for commercial purposes. Therefore, apart from the mandate of Article 18, section 69-A, which is in the nature of regulatory provision, does not contravene any provision of Article 18 or any other provision of the Constitution. The law has been promulgated within the permissible limits. While examining vires of a statute it has to be presumed that the Legislature will not flout a Constitutional provision and all efforts shall have to be made to lean in. favour of constitutionality to save it rather than to destroy it.

In the present case record shows that public notice inviting tenders for franchised routes, inter alia, in the city was first published on 14-12-1998 in daily Jang followed by another public notice in the year 1999 by which applications were invited up to 31-12-1999. None of the petitioners responded to the aforesaid notices. One of the respondents submitted its tender on which an interim agreement was executed between the parties and after series of deliberations and settlement of detailed terms and conditions the impugned agreement was executed on 23-2-2000, on 6-7-2001 a notification was issued under section 69-A(4) of the Provincial Motor Vehicles Ordinance, 1965 and on 20-7-2001 alternate routes were identified and offered to the other transporters by the Regional Transport Authority. Having not responded to the public notices inviting tenders for a franchised route, the petitioners could not be heard to say that they had suffered a legal grievance. In the matter of entering into contracts or grant of licences and permits to the citizens, the Government and its functionaries, are required to act in the matter honestly, justly and fairly. The action of the Punjab Government under section 69-A was taken in a transparent manner by inviting tenders through public notices not warranting any interference of High Court.

The right of general public to use a public road and the right to use a public road for commercial purpose has to be distinguished. While in the case of former, the State may not be empowered to prohibit use of a public road, in case of latter it can be regulated by law.

Therefore, on the wording of Article 18 of the Constitution, the right to enter upon a profession or occupation or to conduct trade or business can hardly be described to be a Constitutional or fundamental right when such right may be denied bylaw.

Grant of a franchise under section 69-A to a selected agency in a prescribed manner after inviting tenders through public notices in the newspapers does not amount to creation of a monopoly.

Section 69-A of the Provincial Motor Vehicles Act, 1965 and the action taken thereunder are fully protected by Article 18 read with proviso (a) to the aforesaid Article of the Constitution.

(d) Provincial Motor Vehicles Act (XIX of 1965)--

----S. 69-A---Constitution of Pakistan (1973), Arts.18 &199---Constitutional petition---Franchise, grant of---Provision of S.69-A of the Ordinance does not offend against Art. 18 or any other provision of the Constitution, the question whether its vires could be examined on the touchstone of Art.8 of the Constitution on account of enforcement of Emergency in the country, would not arise and High Court, in circumstances, left the said question for decision in some other appropriate case.

(e) Provincial Motor Vehicles Ordinance (XIX of 1965)--

----S. 69-A---Consititution of Pakistan (1973), Arts.199 & 203-G--­Consitutional petition---Contention was that S.69-A, Provincial Motor Vehicles Ordinance, 1965 was ultra vires the Injunctions of Islam and the same be declared as such---Validity---Provision of Art.203-G of the Constitution barred the jurisdiction of the High Court to examine said question, for said question was within the exclusive jurisdiction of the Federal Shariat Court.

Province of Punjab and another v. National Industrial Credit Corporation 2000 SCMR 567 ref.

(f) Constitution of Pakistan (1973)--

----Arts. 2A & 199---Objectives Resolution---No law can be declared as invalid on the touchstone of Art-2A of the Constitution.

(g) Provincial Motor Vehicles Act (XIX of 1965)---

---S. 69-A---Constitution of Pakistan (1973), Arts. 18 & 199---Constitutional petition---Franchise, grant of---Freedom of trade---Right of general public to use a public road and the right to use a public road for commercial purpose has to be distinguished; while in the cases of former, the State may not be empowered to prohibit use of public road, in case of latter it cast be regulated by late.

(h) Words and phrases-

--"Regulate"---Connotation.

Black's Law Dictionary ref.

(i) Constitution of Pakistan (1973)---

----Art. 18---Power of the State to regulate trade, business or profession---Scope.

Malik Niaz Muhammad v. Provincial Transport Authority 1989 SCMR 790; Saghir Ahmad and another v. State of U.P. and others AIR 1954 SC 728; East Pakistan Province v. Dr. Azizul Islam PLD 1963 SC 296; Province of East Pakistan v. Sirajul Haq Patwari PLD 1966 SC 854; Al-­Mutawwakal Flour Mills v. Province of Punjab 1999 YLR 42; Toyota Hiace City Wagon Owners' Association v. Farukh Ahmad, Secretary, RTA, Multan and others PLD 1998 Lah. 376; Ismail Khan v. Kamran Ali Afzal 1998 MLD 1340; Muhammad Qayyum and others v. Rana Waris Ali Khan 1992 PCr.LJ 2641; Messrs Ibrar Flour Mills v. Province of Punjab 1997 MLD 2184; Messrs Ellahi Cotton Mills v. Federation of Pakistan PLD 1997 SC 582; Shaukat Ali and others v. Government of Pakistan PLD 1997 SC 342; Jibendra Kishore Achharyya Chowdhry v. The Province of East Pakistan and others PLD 1957 SC 9; Muhammad Ilyas Malik v. Ministry of interior 1995 SCMR 762; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Mst. Zahida Sattar v. Federation of Pakistan PLD 2002 SC 408; Harman Singh and others v. Regional Transport Authority, Calcutta AIR 1954 SC 190; The Amritsar Pathankot Transport Co. v. The Province of Punjab PLD 1956 Lah. 900; Superintendent of Police v. Abu Bakar and others 1972 SCMR 154; Syed Wasaf Ali Shah v. Secretary Interior 1991 PCr.LJ 32; Zaheeruddin v. The State 1993 SCMR 1718; Haq Nawaz v. The Province of Punjab PLJ 1997 Lah. 713; Haji Rana Muhammad Shabbir v. Federation of Pakistan PLD 2001 SC 18; Qur'an the Fundamental Law of Human Life Vol. I by Syed Anwer Ali; The Principles of State and Government in Islam by Muhammad Asad;

The Progress of Pakistan Co. Ltd. v. Registrar of Companies PLD 1958 Lah. 887; Muhammad Ismail v. Chief Settlement and Rehabilitation Commissioner PLD 1966 SC 327; Fundamental Rights under Shariat by A.R. Cornelius PLD 1970 Jour. 144; Syed Zafar Ali Shah v. General Parvez Musharraf PLD 2000 SC 869; Nisar Ahmad and others v. Federation of Pakistan 1999 SCMR 1338; Ghulam Rasool v. Muhammad Hayat PLD 1984 SC 385; Syed Ali Azhar Naqvi v. Government of Pakistan PLD 1994 Kar. 67; Mehram Ali v. Federation of Pakistan 1998 MLD 1411; Muhammad Kamran Asghar v. Board of Intermediate and Secondary Education, D.G. Khan 1999 YLR 1019; Aamir Ali v. Federal Public Service Commission 2000 YLR 573; Madina Sugar Mills v. Federation of Pakistan PLD 200 Lah. 506; Miss Sarah Malik v. Federation of Pakistan 2001 MLD 1026; Collector, Central Excise and Sales Tax v. Pakistan Pulp Papers and Board Makers Association 2001 MLD 1969; Shabbir Ahmad v. Pakistan Telecommunication Company 2001 MLD 1903; Zaheeruddin Sheikh v. United Bank Limited 2001 CLC 147; Nisarul Haq v. Tehsil Municipal Administrator City PLD 2002 Lah. 359; Kaleem Haider v. Government of Sindh 1990 CLC 2016; Yahya Gulzar v. Province of Punjab 2001 CLC 9; Words and phrases (Permanent Edn.), Vol. 17; Black's Law Dictionary, 5th Edn.; Government of Pakistan v. Zamir Ahmad Khan PLD 1975 SC 667; Muhammad Sharif and others v. Administrator, Market Committee, Kasur PLD 1993 Lah. 514; Glass Chatons Importers and Users, Association v. Union of India AIR 1961 SC 1514; Akadasi Padhan v. State of Orissa and others AIR 1963 SC 1847; Ex parte Datafin, Panel on Takeovers and Mergers (1987) 1 All ER 564; Foster v. British Gas (1990) 1 ECR 3313; NUT v. St. Mary School (1997) 3 Common Market (Law Review 630): Waseem Shahzad and others v. Federation of Pakistan PLD 2001 SC 233; Yousaf Abbas v. District Magistrate and others 2001 CLC 1355; Ghulam Dastagir v. WAPDA through Chairman 2001 YLR 1135; Zila Council, Jhang v. Messrs Daewoo Corporation 2001 SCMR 1012; East and West Steamship Co. v. Pakistan through Secretary to Government of Pakistan PLD 1958 SC (Pak.) 41; National Labour Relations Board v. Jones and Laugh in Steel Corporation 301 US 1; Lahore Improvement Trust, Lahore v. Custodian, Evacuee Property, West Pakistan Lahore PLD 1971 SC 811 and Province of Punjab and another v. National Industrial Credit Corporation 2000 SCMR 567 ref.

(j) Words and phrases-

--"Regulate"---Connotation.

Nasir Saeed Sheikh, Dr. Babar Awan and Nazir A. Ghazi for Petitioner.

Kamran Shaja for Respondents Nos. 1 and 2.

Shan Gul for Respondent No.4.

M. Arif Raja and Ch. M. Imtiaz for the Remaining Respondents.

Ahmad Awais for Respondent/Varan Tours.

Maqbool Elahi Malik, A.-G., Punjab.

P L D 2003 Lahore 94

Before Asif Saeed Khan Khosa and Tassaduq Hussain Jilani, JJ

HAMMAD KHALID‑‑‑Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and others‑‑‑Respondents

Writ Petition No. 14688 of 2002, decided on 10th December, 2002.

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

‑‑Ss. 5 & 9‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional Petition‑ ‑Petitioner had called in question his implication and involvement in Reference submitted by the National Accountability Bureau which was trending before the Accountability Court and had also sought a declaration that the petitioner's detention in connection with the said reference was without lawful authority and of no legal effect‑‑‑Petitioner also submitted that present Constitutional petition may also be treated as a petition for bail for the petitioner in the said Reference‑‑‑Validity‑‑‑Investigation in the case of the petitioner and his co‑accused had been taken up by the National Accountability Bureau upon an initiation of the High Court when the allegations against the petitioner and his co‑accused had been highlighted before the High Court in another case and the said allegations pertained to misappropriation of a huge amount of money deposited with the company by numerous innocent citizens for purchase of tractors and at least 740 of such persons had so far failed to receive any tractor and most of the amount posited by such persons remained unaccounted for‑‑‑Petitioner, though was Wither a Director nor a shareholder of the company but at the same time he has not only a son of the principal director of the said company but he was also the Business Development Manager and an authorized signatory for the purpose of issuing cheques on behalf of the said company‑‑‑Petitioner, alongwith his co‑authorized signatory of the company, had all along been issuing cheques on behalf of the said company, and had, thus, been handling said company's cash‑‑‑Investigating Officer had collected material, to show anal was petitioner was practically incharge of the financial matters ox the company and all the financial transactions used to take place after his approval and almost all the cheques drawn from different Banks during the relevant period bore petitioner's signatures‑‑‑Prosecution, through various documents, showed as to how huge finances of the company had been siphoned off to other companies of which the petitioner was the Chief Executive‑‑‑Held, in view of availability of such material and keeping in view such de facto control of the petitioner over the finances of the company prima facie, the petitioner could well be termed as a "person" for the purposes of the provisions of S.5(o) of the National Accountability Bureau Ordinance, 1999 and could thus be tried for the allegations levelled by the prosecution‑‑‑If the facts of the case were ultimately conclusively proved before the Trial Court, such exercise of transfer of company's funds for the rise of the petitioner and his co‑accused would be established as an ingenious device or a wicked stratagem for achieving conversion of assets and siphoning off of funds of the company and petitioner might then deserve his credit (or discredit) in that regard for being a key player in the whole affair or for at least being privy to the same‑‑‑Prosecution, in circumstances, was possessed of sufficient material at the present stage to prima facie connect the petitioner with the alleged misappropriation‑‑‑Delay in holding the petitioner's trial was not unconscionable or to be sufficient by itself for admitting the petitioner to bail at such a stage ‑‑‑Co‑accused of the petitioner was still a fugitive from law and the petitioner's release on bail at this stage may adversely affect the prosecution's efforts to present those who had already been arrested in the case so far‑‑‑Prima facie reasonable grounds did exist to believe in the petitioner's involvement in the alleged offence and, thus, his custody in connection with the case could neither be termed as illegal nor improper for the purposes of maintaining a petition in the nature of habeas corpus nor such custody could be declared to be without lawful authority and of no legal effect for the purposes of maintaining a writ of certiorari under Art. 199 of the Constitution‑‑‑Constitutional petition was dismissed in circumstances.

Ali Zafar Syed for Petitioner.

Javed Shaukat Malik, Deputy Prosecutor‑General for NAB for Respondents.

Date of hearing; 10th December, 2002.

P L D 2003 Lahore 102

Before Mian Saqib Nisar, J

Mst. IKRAM BIBI‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB through Collector, Faisalabad and 13

others‑‑‑Respondents

Civil Revision Nos. 105 and 106 of 2000, heard on 26th November, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 47‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Decree for specific performance‑‑‑Such decree does not by itself convey or transfer a title of the suit property, to the decree‑holder, who in order to seek the title qua the property, has to obtain the execution of a deed of conveyance, which ordinarily is done through the process of execution of the decree‑‑­Implementation of the decree for specific performance can be otherwise made, except through the execution process‑‑‑Judgment‑debtor himself can execute necessary instrument transferring the title to the decree‑holder and in such a situation, the decree stands satisfied but without there being any step or the proceedings conducted by the Court in execution‑‑‑Where the Government Department which is ultimately obliged and responsible for the purpose of conveying the legal title, had given effect to the decree, it would mean to have been done both for and on behalf of the judgment‑debtor and the Court----Contention that despite the fact that the aced had been executed in favour of the decree‑holder by the concerned Government Department, but because the process of execution under Civil Procedure Code, 1908 had not been followed to achieve the goal, the transfer of title was invalid, was misconceived and had no force‑‑‑Notwithstanding the execution process, a decree for specific performance can be given fullest effect of the transfer of the title in the property subject‑matter of the decree, otherwise, than taking resort to the execution proceedings under C.P.C.

Muhammad Ishaq v. Muhammad Siddique PLD 1975 Lah. 909; Haji Abdul Rehman and others v. Noor Ahmed and others PLD 1974 BJ 25: Bai Karimabibi Daudbhai v. Abderehman Sayad Banu 1922 BLR 496; Rup Chand and others v. Allah Jawaya 1922 Lah. 459; Mst. Hussain Bibi v. Siraj Din PLD 1998 Lah. 548 and National Bank of Pakistan, v. Messrs Ch. Auto & Tools Agency PLD 2001 Lah. 135 ref.

Shamim Abbas Bokhari and Ch. Akbar Ali Shad for Petitioner.

Muhammad Ramzan Chaudhry and Mrs. Alia Neelum for Respondents.

Date of hearing: 26th November, 2002.

P L D 2003 Lahore 106

Before Tanvir Bashir Ansari, Mian Hamid Farooq and Rustam Ali Malik, JJ

Khawaja MUHAMMAD DAUD SULAIMANI‑‑‑Petitioner

Versus

ELECTION TRIBUNAL and others‑‑Respondents

Writ Petition No. 17061 and connected Writ Petition No. 17063 of 2002, decided on 27th September, 2002.

(a) Conduct of General Elections Order [Chief Executive's Order 7 of 2002]‑‑‑

‑‑‑‑Art. 8D(2)(o)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Qualifications and disqualifications of member of Parliament and Provincial Assembly‑‑‑Nomination papers of the candidate were rejected on the ground that he was a defaulter of more than 2 Million of Rupees for more than one year‑‑‑Validity‑‑‑Candidate was Director of a Company which had obtained loan from Agricultural Development Bank of Pakistan and he stood as one of the guarantors‑‑‑Interim decree for recovery of Rs.29,15,32,000 together with the mark‑up was passed by the High Court, in its original jurisdiction, which had remained unsatisfied‑‑‑No injunctive order had been passed against the decree nor operation of decree had been suspended and the candidate had been able to forestall the execution of decree for the last more than 3 years‑‑‑Such fact amply manifested the intention of the candidate to liquidate public money and the resources he had to prevent the process for execution of the decree‑‑‑Such candidate could not be allowed to contest the elections, when a colossal public money had illegally been Withheld by him.

(b) Conduct of General Elections Order [Chief Executive's Order 7 of 2002]‑‑‑

‑‑‑‑Art. 8D(2)(o)‑‑‑Contract Act (IX of 1872), S.128‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Qualifications and disqualifications of members of Parliament and Provincial Assembly‑‑‑Rejection of nomination papers of a candidate on the ground that he was a defaulter of more than two million of rupees for more than one year‑‑‑Candidate was not only Director of the defaulting company but also was guarantor for the loan advanced to the said company‑‑‑High Court under its original jurisdiction had passed an interim decree jointly and severally against the candidate and other defendants‑‑‑Interim decree was passed against the candidate not in the capacity of a Director of the company but as a guarantor for the payment of the loan‑‑‑Position of the guarantor qua the transaction had further deteriorated as he had been relegated to the position of a judgment‑debtor from a guarantor, against whom a decree for the huge .mount was outstanding which still remained to be satisfied‑‑‑Provision of S.128, Contract Act, 1872 provided that the liabilities of the principal debtor and the guarantor were co ‑extensive and that was the reason that the interim decree was passed jointly and severally‑‑‑Constitutional petition against rejection of nomination papers was rejected in circumstances.

(c) Conduct of General Elections Order [Chief Executive's Order 7 of 2002]‑‑‑

‑‑‑Art. 8D(2)(o)‑‑‑Contract Act (IX of 1872), S.130‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Qualifications and disqualifications of member of the Parliament and the Provincial Assembly‑‑­Nomination papers of the candidate were rejected on the ground that he was t defaulter of more than 2 million of rupees for more than one year‑‑‑of the candidate was that he had sold his 8% shares of the Company (which had obtained the loan from the Bank) as far back as on 22‑9‑1994 and resigned from the Directorship thereof‑‑Validity‑‑‑Candidate had executed the guarantee for the loan which must have been executed prior to the alleged sale of the shareholding candidate had not placed on record the copy of the plaint even on demand from the Court upon which the Court could ascertain that at what point of time and on which date the candidate executed the guarantee attributed to him‑‑‑ Held, even resignation from the Directorship of the company or the sale of shareholding would not in any way absolve a person from the rigors of execution of the guarantee prior to the resignation or sale of the shares of the Company‑‑‑Subsequent revocation of guarantee or/and resignation from the Directorship of the Company would not discharge the guarantee or the liabilities of the guarantor incurred and undertaken prior to the said happenings‑‑‑Surety is though competent to revoke the guarantee under S.130, Contract Act, 1872 but that revocation would be regarding the future transaction and could not affect the transactions already' undertaken by the said guarantor or the guarantee already furnished by the guarantor‑‑‑Candidate had failed to place on record any document .in order to show that he, in the capacity of the surety/guarantor, the guarantee had been discharged either by the principal debtor or by, operation of law‑‑‑Decree for the colossal public money was outstanding against the candidate and others since 18‑11‑1999 which was still unsatisfied‑‑‑Candidate, in circumstances, by his acts and omissions had not allowed the said decree to be executed, even after the lapse of three years and still he had the courage to say, in the Constitutional petition that he was not a defaulter and he be allowed to contest the election‑‑‑High Court dismissed the Constitutional petition.

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

‑‑‑‑S. 11‑‑‑Interim decree‑‑‑Banking Court is empowered to pass an interim decree in respect of the part of the claim, which appears to be payable by the defendants to the plaintiff‑‑‑Provision of S.11(2) of the Act provides that the interim decree shall be executable and appealable as a decree passed under the Act‑‑‑Interim decree thus is a "decree" for all intents and purposes inasmuch as the same is not only executable as a decree but also appealable‑‑­If, however, any amount will be recovered through an interim decree the same shall be adjusted at the time of passing of the final decree.

(e) Conduct of General Elections Order [Chief Executive's Order 7 of 2002]‑‑

‑‑‑‑Art. 8D(2)(g)‑‑‑Qualifications and disqualifications of member of the Parliament and Provincial Assembly‑‑‑Rejection of nomination papers of the candidate on the ground of being Bank defaulter‑‑‑Candidate had not mentioned in his nomination papers the fact that a decree for a huge amount had been passed against him in the capacity of the guarantor and that the same was still unsatisfied‑‑‑Such fact was sufficient to come to the conclusion that the candidate was not qualified to contest the elections in view of Art.8D(1)(g) of the Conduct of General Elections Order, 2002

Rao Tariq Mehmood v. The Election Tribunal and others PLD 2003 Lah. 169; Babu Muhammad Munir v. Appellate Tribunal of the Election Commission and others 1993 SCMR 2348; Aijaz Ali Khan Jatoi v. Liaquat Khan Jatoi 1993 SCMR 2350; Abdul Rashid v. Pakistan and others 1969 SCMR 141; Principal King Edward Medical College v. Ghulam Mustafa 1969 SCMR 196 and Rana Muhammad Arshad v. Additional Commissioner (Revenue) 1998 SCMR 1462 ref.

Shahzad Jahangir for Petitioner.

Dr. Danishwar Malik, Dy. A.‑G. for Respondents Nos. 1, 2 and 4.

Sardar Khurram Latif Khosa for Respondent No.3.

Date of hearing: 26th September, 2002.

P L D 2003 Lahore 115

Before Syed Jamshed Ali, J

Messrs NAWABSONS LABORATORIES (PVT.) LIMITED through Managing Director‑‑‑Petitioner

Versus

GOVERNMENT OF PUNJAB, HEALTH DEPARTMENT, through Secretary, Civil Secretariat, Lahore and 5 others‑‑‑Respondents

Writ Petition No. 16547 of 2001, heard on 15th July, 2002.

(a) Words and phrases‑‑

‑‑‑‑"Protocol"‑‑‑Meaning.

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

(b) Drugs (Federal Inspectors, Federal Drug Laboratory and Federal Government Analysts) Rules, 1976‑‑

‑‑‑‑R. 16‑‑‑Phrase "full protocols of the test applied"‑‑‑Connotation‑‑‑Report of result of test or analysts‑‑‑Mandatory requirements‑‑‑Report of Analyst has to be conclusive and must disclose the tests applied‑‑‑Report which is not in accordance with law, cannot be acted upon by an administrative body‑‑­Phrase "full protocols of the test applied" as used in R.16 of Drugs (Federal Inspectors, Federal Drug Laboratory, Federal Government Analysts) Rules, 1976, contemplates that the report should be self‑contained so that its authenticity could be tested if it is disputed‑‑‑Report of Federal Drug Testing Laboratory being conclusive entailed serious consequences of not only jeopardizing the liberty of a person depriving him of his source of livelihood and therefore, the provision of R.16 of Drugs (Federal Inspectors, Federal Drug Laboratory, Federal Government Analysts) Rules, 1976 has to be strictly construed even though the provision is procedural‑‑‑Tests affect substantial rights of a person, therefore, the provision of R.16 of Drugs (Federal Inspectors, Federal Drugs Laboratory, Federal Government Analysts) Rules, 1976, is mandatory in nature.

Gyanendra Nath Mittal v. State AIR 1959 All. 634; S. Dutta and another v. The State AIR 1959 Cal. 427 and Dharam Deo Gupta v. State AIR 1958 All. 865 fol.

(c) Practice and procedure‑-

‑‑When law requires a particular thing to be done in a particular manner, it can only be done in that manner and in no other manner particularly when it may affect arty of the rights of a person.

(d) British Pharmaceutical Code, 1973‑‑

‑‑‑Drugs analysis‑‑Procedure‑‑‑Report of drugs analysis under the provisions of British Pharmaceutical Code, 1973, not only prescribes the standards as to the contents of a drug but also the methods applied to test a drug and the method applied is required to be given in the report.

(e) Drugs (Federal Inspectors, Federal Drug Laboratory and Federal Government Analysts) Rules, 1976‑‑‑

‑‑‑‑S. 16‑‑‑British Pharmaceutical Code, 1973‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Report of drug analysis‑‑‑Failure to mention in test report the full protocols of the test applied ‑‑‑Effect‑‑­Petitioner supplied Tincture Benzoin Co. to Provincial Government and relying on the report of Drug Testing Laboratory of Punjab and of National Institute of Health, the Provincial Quality Control Board declared the drug so applied as substandard‑‑‑Grievance of the petitioner was that the report did not contain the protocol of the tests applied, therefore, the same was in violation of R.16 of Drugs (Federal Inspectors, Federal Drug Laboratory and Federal Government Analysts) Rules, 1976‑‑‑Validity‑‑‑Although the report in the present case professed that the full protocol of tests were applied, yet the same did not indicate the method applied to arrive at the conclusion that the drug supplied by the petitioner was substandard‑‑‑Report and. the certificate of the National Institute of Health not being in accordance with law, same could not be formed basis of decision of the Provincial Quality Board as such the report was without lawful authority and the same was set aside‑‑‑High Court directed the Authorities to take fresh samples in accordance with law thereafter the samples be analyzed under the provisions of R.16 of Drugs (Federal Inspectors, Federal Drug Laboratory and Federal Government Analysts) Rules, 1976.

Gyanendra Nath Mittal v. State AIR 1959 All. 634; S. Dutta and another v. The State AIR 1959 Cal. 427 and Dharam Deo Gupta v. State AIR 1958 All. 865) fol.

(f) Drugs Act (XXXI of 1976)‑‑‑

‑‑‑S. 29‑‑‑Drugs (Federal Inspectors, Federal Drug Laboratory and Federal Government Analysts) Rules, 1976, R. 9‑‑‑Substandard drug, destruction of‑‑‑Provincial Quality Control Board, jurisdiction of‑‑‑Validity‑‑‑Direction or destruction of the drugs cannot be issued by the Board, it can only be rendered by the Drug Court on conviction of offender as provided by S.29 of Drugs Act, 1976 read with R.9 of Drugs (Federal Inspectors, Federal Drugs Laboratory and Federal Government Analysts) Rules, 1976.

Sh. Zia Ullah for Petitioner.

Sher Zaman Khan, Dy. Attorney‑General (on Court's Call).

Malik Akthar Hussain Awan, Addl. A‑G with Dr. Muhammad Asghar, Scientific Officer, C.T.M.D., Islamabad 1, to respondents Nos. 1 to 4 and 6.

Date of hearing: 15th July, 2002.

P L D 2003 Lahore 125

Before Syed Zahid Hussain and Ch. Ijaz Ahmad, JJ

SHAHBAZ KHAN‑‑‑Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commission, Islamabad‑‑‑Respondent

Writ Petitions Nos. 13955, 13222, 13914, 12410 and 12080 of 2002, heard on 6th August, 2002.

(a) Delimitation of Constituencies Act (XXXIV of 1974)‑--

‑‑‑‑S. 11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Delimitation of constituencies ‑‑‑Validity‑‑­Constitutional petition was maintainable.

Rahim Shah's case PLD 1973 SC 24; Shah Jahan Khan's case 1980 CLC 544; Noorwar Jan's case PLD 1991 SC 531; Zia‑ur‑Rehman's case PLD 1973 SC 49; Kh. Muhammad Sharif's case PLD 1988 Lah. 725 and Shah Muhammad's case PLD 1989 SC 26 rel.

(b) Delimitation of Constituencies Act (XXXIV of 1974)‑‑

‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973); Art. 199‑‑‑Constitutional petition‑‑‑Necessary parties, non‑impleading of‑‑‑Effect‑‑‑Notification of delimitation of constituency was issued after providing hearing by Election Commission‑‑‑Petitioner neither impleaded any of the objectors as respondents in the petition nor attached order of Election Commission‑‑­Vires of the order passed by Election Commission was also not challenged on the basis of which the notification was issued‑‑‑Validity‑‑‑Where the petitioners failed to implead the objectors as respondents, the petition would be liable to be dismissed.

Rameez‑ul‑Haq's case PLD 1992 SC 221 and Zafar Mahmood's case 1984 CLC 115 ref.

(c) Delimitation of Constituencies Act (XXXIV of 1974)‑‑

‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Delimitation of constituencies‑‑‑Factual inquiry‑‑‑Jurisdiction of High Court under Art.199 of the Constitution‑‑‑Scope‑‑‑Delimitation of constituencies is based not only on the geographical situation but also on the basis of population and it is the function of Election Commission to determine the same‑‑‑High Court in exercise of Constitutional jurisdiction cannot embark upon the inquiry into facts pertaining to such matters.

(d) Delimitation of Constituencies Act (XXXIV of 1974)‑

‑‑‑‑Ss. 9. 10 & 10‑A‑‑‑Delimitation of constituencies‑‑‑Adjustment without notice ‑‑‑Validity‑‑‑Where the population as carved out by Election Commission falls within the permissible variation, no exception in that regard can be made against the order of the Commission‑‑‑Election Commission had lawful authority to make adjustments without notice under S. 10‑A of Delimitation of Constituencies Act, 1974.

Chaudhry Shafiq Ullah's case PLD 1971 Lah. 533 ref.

(e) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Findings of Tribunals below and factual controversy‑‑‑Scope‑‑‑High Court has no jurisdiction under Art.199 of the Constitution to substitute its own findings in place of the findings of the Tribunals below nor can dilate upon factual controversy raised before it.

Musaddaq's case PLD 1973 Lah. 600 and Qaiser Shaft Ullah's case 1994 SCMR 859 ref.

(f) Delimitation of Constituencies Act (XXXIV of 1974)‑‑

‑‑‑‑S. 9‑‑‑Delimitation of constituencies‑‑‑Principles enlisted.

Following are the principles with regard to delimitation of constituencies:‑‑

(1) Distribution of population in geographically compact areas.

(2) Existing boundaries of administrative units.

(3) Facilities of communication.

(4) Public convenience.

(5) Other cognate factors to ensure homogeneity are to be observed.

(g) Order‑

‑‑‑‑ Order is to be read as a whole and not piecemeal.

(h) Delimitation of Constituencies Act (XXXIV of 1974)‑‑

‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Consututional petition‑‑‑Delimitation of constituencies‑‑‑Grievance of the petitioners was that the notification of delimitation of constituencies, subject‑matter of the petition, was against the law‑‑‑Validity‑‑‑Authorities, in making adjustments of the constituencies, had kept in view and adhered to the criteria laid down in S.9 of Delimitation of Constituencies Act, 1974‑‑‑Notification showed that the criteria of equality of population amongst various electoral units had been achieved and was in consonance with the law on the subject‑‑‑Personal wishes or choice of prospective candidates could not be the criteria or yard­stick for alteration or modification in the delimitation of constituencies‑‑­High Court declined to interfere with the process of delimitation of constituencies in circumstances.

Writ Petition No. 12885 of 2002; Writ Petition No. 12178 of 2002; Muhammad Iqbal Bhatti v. Election Commission of Pakistan (Writ Petition No. 13556 of 2002); Mumtaz Ahmad v. Federation of Pakistan (Writ Petition No. 12933 of 2002); Liaqat Ali Bhaddar v. Election Commission of Pakistan (Writ Petition No. 12117 of 2002); Rahim Shah's case PLD 1973 SC 24; Shah Jahan Khan's case 1980 CLC 544; Noorwar Jan's case PLD 1991 SC 531; Zia‑ur‑Rehman's case PLD 1973 SC 49; Kh. Muhammad Sharif's case PLD 1988 Lah. 725; Shah Muhammad's case PLD 1989 SC 26 and Utility Stores' case PLD 1987 SC 447 ref.

Ch. Naseer Ahmad Bhutta and A. Karim for Petitioner (in Writ Petition No. 12410 of 2002).

Pir S.A. Rashid for Petitioner (in Writ Petition No. 13914 of 2002).

Ch. Mushtaq Ahmad Khan for Petitioner (in Writ Petition No. 12080 of 2002).

Kh. Saeed‑uz‑Zafar, D.A.‑G. with Rana Muhammad Aslam, Assistant Election Commissioner for Respondent.

Ali Asghar Ch. and Rana Zulfiqar Ali for the Objectors.

Date of hearing: 6th August, 2002.

P L D 2003 Lahore 138

Before Tassaduq Hussain Jilani, J

Ch. MAQBOOL AHMAD and others‑‑‑Petitioners

Versus

Malik FALAK SHER FAROOQA, A.D.J./ELECTION TRIBUNAL and

others‑‑‑Respondents

Writ Petitions Nos.9834, 9338, 8752, 9923, 9029 and 9004 of 2002, decided on 20th December, 2002.

(a) Punjab Local Government Ordinance (XIII of 2001)‑‑

‑‑‑‑S. 152‑‑‑Qualifications for candidates and elected members of a local council enumerated.

(b) Punjab Local Government Ordinance (XIII of 2001)‑‑

‑‑‑‑S. 154‑‑‑Joint candidacy and elections‑‑‑In the event of occurrence of a casual vacancy, a candidate in the office of a Nazim or a Naib Nazim shall contest the election for such office in individual capacity.

(c) Interpretation of statutes‑‑

‑‑‑‑Broad rules of statutory interpretation enlisted.

Statutory interpretation has been a subject of debate among Lawyers, Jurists and Judges down the ages. Methods of statutory interpretation have not been generally regulated by the Parliament or the law maker. These have been evolved by the Judges. These modes have varied in time and space. The various modes ultimately culminated in what the Jurists have termed as "rules of statutory interpretation". These rules, broadly speaking are as under:

(i) The Mischief Rule;

(ii) The Literal Rule;

(iii) The Golden Rule;

(iv) The United Contextual Approach.

(d) Interpretation of statutes‑‑

‑‑‑‑Rule of united contextual approach‑‑‑Words and particularly general words, cannot be read in insolation‑‑‑Court has right and duty to examine every word of a statute in its context and to use the same in its widest sense by not only including other enacting provisions of the same statute, but its preamble the existing state of the law other statutes in pari materia, and the mischief, Court can by those and other legitimate means, discern the statute was intended to remedy‑‑‑No one can profess to understand any part of a statute or of any other document before he has read the whole of it‑‑‑Until one has done so, he is not entitled to say that it, or any part of it, is clear and unambiguous.

English Legal System by Smith and Bailey, 3rd Edn. p.363 and Attorney‑General v. Prinvr Ernest Augustus Hanover 1957 AC 436 ref.

(e) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑Ss. 16. 18‑A & 38‑‑‑Punjab Local Government Ordinance (XIII of 2001), Ss.154, 152. 158, 161. 164 & 196‑‑‑Punjab Local Government Elections Rules. 2000, R.81‑‑‑Punjab Government Notification No. SOV (LG)5­V2001, dated 26‑9‑2002‑‑‑Joint candidacy and elections‑‑‑Word "joint" is ejusdem generis to the word which follows i.e. "candidacy"‑‑‑Element of "joint" is relatable to candidates in election only and not beyond that‑‑‑Post election procedure i.e. removal of a member; the bye‑elections to vacant seat and the subsequent notification of its result is a member specific and not joint‑‑‑Principles.

The very title of section 16 of the Punjab Local Government Flections Rules, 2000 is suggestive of its meaning and import. It is "Joint Candidacy and Elections". It shows that the element of "Joint" is relatable to candidates in elections only and not beyond that. This legislative intent is implicitly reiterated/reflected in other provisions of the same Act, the related Statutes and the Rules framed thereunder. For instance if a returned candidate/member is unseated or a seat falls vacant, then section 18‑A (The Punjab Local Government Elections Ordinance 2000) stipulates bye‑election of that seat only and not that of the other member who got elected with him through joint candidacy. Section 154 and section 156 of the Punjab Local Government Ordinance, 2001 are analogous to sections 16 and 18‑A respectively of the Punjab Government Elections Ordinance, 2001. Section 196 of the Punjab Local Government Ordinance, 2001 provides for repeal of the previous two related Ordinances (1) The Punjab Local Government Ordinance, 1976, (2) The Punjab Local Government Election Ordinance, 2000. Yet subsection (3) of section I of the same Ordinance (XIII of 2001) defers its enforcement and the repeal of the earlier law to a date or dates the Government may by notification in the official Gazette declare. Those provisions remained in vogue till 26th September, 2002 whet: the Local Government and Rural Development Department, Government of the Punjab issued the requisite declaration in terms of subsection (3) of section 1 of the Punjab Local Government Ordinance, 2001 which was notified in the Punjab Gazette.

Subsection (2) of section 196 (of the Punjab Local Government Ordinance, 2001) provides that notwithstanding the repeal of the Punjab Local Government Ordinance, 1979, all rules, regulations and bye‑laws framed under the repealed Ordinance shall continue to be in force provided those are not inconsistent with the other provisions of this Ordinance (of the repealing Ordinance). Subsection (3) of section, 196 contemplates the continuity and mode of removal of those elected under the repealed Ordinance the operative part whereof reads as "shall continue to hold their respective offices till the completion of their terms, unless earlier removed or recalled under this Ordinance".

Section 161 (of the Punjab Local Government Ordinance, 2001) lays down procedure of removal of a Nazim or Naib Nazim if he lacks any of the qualifications in terms of section 152 and it does not talk of any joint removal/liability. And finally under section 164 of the same Ordinance, the Chief Election Commissioner, who is to notify "every election, bye‑election, and result of such elections and resignation, removal or recall of a member, Nazim or Naib Nazim as the case may be". Under section 38 of the Punjab Local Government Elections Ordinance, 2000, the Punjab Local Government Elections Rules, 2000 were framed which, by virtue of section 1, subsection (3) were still in force at the relevant time as admittedly the Punjab Local Government Elections Ordinance, 2000 had not, by then, been notified by the Government to have been repealed. Rule 81 lays down the grounds on the basis of which the Tribunal shall declare the election of "the returned candidate" and not of candidates as void. Those grounds are also relatable to a returned candidate. Those are as under:

(a) the nomination of the returned candidate was invalid; or

(b) the returned candidate was not, on the nomination day qualified for, or was disqualified from, .being elected as a member or Nazim or Naib Nazim, as the case may be; or

(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or

(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his authorized agent.

The above mentioned scheme of law clearly shows that the post election procedure for (i) removal of a member, (ii) the bye‑election to a vacant seat and the subsequent, (iii) notification of its result is member specific and not joint.

Besides looking at the statutory context to interpret the "Joint Candidacy", the well‑known rules of language can also be made use of for the same purpose. One such rule is Ejusdem Generis. It means general words which follow particular ones normally apply only to such persons or things as are ejusdem generis (i.e. of the same genus or class as of the particular ones. In the present context, the word "joint" is ejusdem generis to the word which follows i.e. "candidacy".

Yet another Latin Tag i.e. Noscitur a soclis would also be very instructive. It means that words derive colour from those words which surround them. It is a fundamental rule in the construction of statutes that associated words explain and limit each other. The meaning of a word may be ascertained by a consideration of the company in which it is found and the meaning of the words which are associated with it.

Associated words take their meaning from one and another under the doctrine of Noscitur a soclis, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it. Such doctrine is broader than the maxim ejusdem generis. In fact the latter maxim is only an illustration of specific application of the broader maxim Noscitur a soclis.

Webster's Twentieth Century Dictionary, 2nd Edn.; English Legal System by Smith and Bailey, 3rd Edn., p.363; Attorney‑General v. Prinvr Ernest Augustus Hanover 1957 AC 436; Brown v. Chicago N.W.Ry. Co. 78 NW 771; State of Bombay v. Hospital Mazdoor Saba AIR 1960 SC 610; Zamiruddin Ahmad v. Havas Khan PLD 1969 SC 57 and Messrs Kashmir Pottery Works v. Commissioner of Sales Tax PLD 1973 Lah. 837 ref.

(f) Interpretation of statutes‑‑

‑‑‑‑Statutory context to interpret words‑‑‑Rule of "ejusdem generis" and maxim: "Noscitur a soclis"‑‑‑Meaning and application‑‑‑Associated words take their meaning from another under the doctrine of Noscitur a soclis, the philosophy of which is that the meaning bf a doubtful word may be ascertained by reference to the meaning of words associated with it‑‑‑Doctrine of Noscitur a soclis is broader than the rule ejusdem generis; in fact the latter rule is only an illustration of specific application of the broader doctrine Noscitur a soclis‑‑‑Rule of ejusdem generis means that general words which follow particular ones normally apply only to such persons or rings as are ejusdem generis i.e. of the same genus or class as of the particular one‑‑‑Maxim: "Noscitur a soclis" means that words derive colour from those words which surround them‑‑‑Associated words explain and limit each other‑‑‑Meaning of a word may be ascertained by a consideration of the company in which it is found and the meaning of the words which are associated with it:

Webster's Twentieth Century Dictionary, 2nd Edn.; English Legal System by Smith and Bailey, 3rd Edn., p.363; Attorney‑General v. Prinvr Ernest Augustus Hanover 1957 AC 436: Brown v. Chicago N.W. Ry. Co. 78 NW 771; State of Bombay v. Hospital Mazdoor Saba AIR 1960 SC 610; Zamiruddin Ahmad v. Havas Khan PLD 1969 SC 57 and Messrs Kashmir Pottery Works v. Commissioner of Sales Tax PLD 1973 Lah. 837 ref.

(g) Punjab Local Government Elections Ordinance (V of 2000)‑‑

‑‑‑‑S. 16‑‑‑Joint candidacy and elections‑‑‑Scope‑‑‑"Joint candidacy" is limited to elections only and the principle of sinker would not be applicable, and removal, disqualification or annulment of an election of a member would not affect the election of the other returned candidate who may have contested election as a joint candidate with the former.

(h) Punjab Local Government Elections Ordinance (V of 2000)‑‑

‑‑‑‑S. 14--Qanun‑e‑Shahadat (10 of 1984), Arts. 85 & 90‑‑‑Age of candidate‑‑‑Determination‑‑‑Presumption of truth is attached to the entries made in the Register of Births and Deaths under Arts.85 & 90 of the Qanun­e‑Shahadat, 1984‑‑‑Entries, in the present case in the backdrop of the material on record, made in the Municipal Register of Births had to be given preference to the school certificate.

Khurshid Iqbal v. D.R.O. 2001 MLD 1908 and Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan 1989 SCMR 704 ref.

(i) Punjab Local Government Elections Ordinance (V of 2000)‑‑

‑‑‑‑S. 14‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Age of candidate. for election‑‑‑Determination‑‑‑Validity‑‑‑Finding of fact arrived at by the Election Tribunal of competent jurisdiction could not be interfered in Constitutional jurisdiction by the High Court.

(i) Punjab Local Government Ordinance (XIII of 2001)‑‑

‑‑‑‑Ss. 165 & 166‑‑‑Election‑‑‑Corrupt practice arid bribery‑‑‑Bargaining with voters is an essential ingredient to prove corrupt practice and bribery‑‑­Two elements are essential in order to constitute a bargain, firstly there must he a gift, an offer or a promise or a gratification and secondly there should lie an element of solicitation for votes in lieu of gift or promise w ratification‑‑‑Principles.

The allegation against the candidate in the present case was that he provided electric polls to the residents of the locality during the election campaign and that he was signatory to an Iqrar Nama entered into between himself, his brothers and residents of the locality to the effect that to widen the street to the extent of six feet he and his brothers, in the name of God Almighty would, surrender a certain part of the land/property owned by them and that they had no objection if the residents of the locality got the said land mutated in the Revenue Record for the said purpose.

There is no cavil to the proposition, that if a candidate offers or gives or promises any gratification for the purpose of inducing a voter to vote or a candidate to withdraw or to influence the course of election, it would constitute a corrupt practice within the meaning of sections 165 and 166 of the Punjab Local Government Ordinance, 2001 and the election of a returned candidate could be annulled if this charge is proved. These provisions of election laws are meant to ensure the sanctity of the election process. However, while interpreting these provisions care has to be taken in distinguishing a voluntary expression of goodwill to favour of the residents of the locality arid the offer made to a potential voter in lieu of the promise held by the latter of support in the election. In the former act, there is no element of bargain whereas in the latter act the bargain could be oven or covert or could be subtle or implied. To declare an act to be a corrupt practice or the transaction to be bribery in the context under consideration, the element of bargain is a condition precedent. Two elements are essential in order to constitute a bargain. Firstly, there must be a gift, an offer or a promise or a gratification and, secondly, there should be an element of solicitation for votes in lieu of gift or promise or gratification. In the present case, the wording of Iqrar Nama indicates that the surrender of land to widen the street was made voluntarily in the name of God Almighty and there was no element of soliciting vote in the said Iqrar Nama. The allegation that the candidate promised and provided electric polls in the locality with a view to influence the course of election, is not borne out from the record. Only one witness stated so and that too to the extent that four cemented electric polls were brought by candidate three/four days prior to the election day and were kept in his house. This allegation is not corroborated by any other material on record. The three witnesses produced by the objectors belonged to the losing party and no implicit reliance can be placed on their testimony. Bargaining with voters is an essential ingredient to prove corrupt practice or bribery.

Harjit Singh v. S. Umrao Singh AIR 1980 SC 701 and Iqbal Singh v. Gurdas Singh AIR 1976 SC 27 ref.

(k) Punjab Local Government Elections Ordinance (V of 2000)‑

‑‑‑‑S. 16‑‑‑Joint candidacy and elections‑‑‑Concept of joint candidacy stipulated in S.16, Punjab Local Government Elections Ordinance, 2000 is relatable to election or bye‑election only and would not affect the election of returned candidate if an election petition is allowed against a co‑returned candidate.

Webster's Twentieth Century Dictionary, 2nd Edn.; English Legal system by Smith and Bailey, 3rd Edn., p.363; Attorney‑General v. Prinvr Ernest Augustus Hanover 1957 AC 436; Brown v. Chicago N.W. Ry. Co. 78 NW 771; State of Bombay v. Hospital Mazdoor Saba AIR 1960 SC 610; Zamiruddin Ahmad v. Havas Khan PLD 1969 SC 57; Messrs Kashmir Pottery Works v. Commissioner of Sales Tax PLD 1973 Lah. 837; Khurshid Iqbal v. D.R.O. 2001 MLD 1908; Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan 1989 SCMR 704 Harjit Singh v. S. Umrao Singh AIR 1980 SC 701 and Iqbal Singh v. Gurdas Singh AIR 1976 SC 27 ref.

Rana Muhammad Arshad Khan for Petitioners (in W.P.No.9834 of 2002).

Muhammad Ahsan Bhoon for Respondents (in W.P.No.9834 of 2002).

Rana Mashhood Ahmad Khan for Petitioners (in W.P.No.9338 of 2002).

Malik Saeed Hassan for Respondents (in W.P.No.9338 of 2002).

Dr. M. Mohayuddin Qazi for Petitioners (in W.P.No.8752 of 2002).

Anwar Akhtar for Respondents (in W.P.No.8752 of 2002).

Muhammad Saeed Ansari for Petitioners (in W.P.No.9923 of 2002).

Syed Zameer Hussain for Respondents (in W.P.No.9923 of 2002).

Dr. A. Basit for Petitioners (in W.P.No.9029 of 2002).

Asad Manzoor Butt for Respondent (in W.P.No.9029 of 2002).

Dr. A Basit and Ch. Muhammad Afzal Wahla for Petitioners (in V.P.No.9004 of 2002).

Maj. (R.) Arshad Mehmood for Respondents (in W.P.No.9004 of 2002).

M. Bilal Khan, Addl. A.‑G. (in all the Cases).

Dates of hearing: 30th, 31st October; 5th 6th, 7th and 11th November, 2002.

P L D 2003 Lahore 165

Before M. Javed Buttar, Ch. Ijaz Ahmad and Syed Jamshed Ali, JJ

Rao TARIQ MEHMOOD‑‑‑Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and

another‑‑‑Respondents

Amended Review Petition No.138 in Writ Petition No.16711 of 2002, decided on 27th September, 2002.

Conduct of General Elections Order [Chief Executive's Order 7 of 2002]‑‑‑

‑‑‑‑Art. 8D(2)(o) & (g)‑‑‑Representation of the People Act (LXXXV of 1976), S.14(5‑A) & 14(3)(c)‑‑‑Civil Procedure Code (V of 1908), Ss.114, 151 & O.XLVII, R.1‑‑‑Review‑‑‑Rejection of nomination papers of the candidate for election to Provincial Assembly on the ground of his being defaulter of the Bank under the decrees‑‑‑High Court, under its Constitutional jurisdiction, had maintained the order of rejection of nomination papers‑‑‑Review of the High Court judgment was sought on the ground that the documents attached with the review petition were not available to the candidate at the time when the nomination papers were submitted‑‑‑Documents, in question, clearly revealed that the candidate had retired from the Directorship of the Company which had defaulted and had transferred his entire shareholding of the said Company and the candidate and other shareholders had settled the dispute with the Bank‑‑‑Candidate in circumstances, had contended that High Court had ample jurisdiction to look into the said documents specially the arrangements of rescheduling of the outstanding liabilities with the Bank‑‑‑Validity‑‑‑Held, merely because the candidate had transferred his total shareholding of the Company; as was being asserted, did not absolve him of his liability under the decree which remained unsatisfied‑‑‑Candidate was a defaulter of a Bank loan by virtue of the decree passed against him and others in view of S.14(5‑A), Representation of the. People Act, 1976 read with S.14(3)(c) thereof‑‑­Candidate had to show that on the date of his nomination as a candidate he did not suffer from any disqualification‑‑‑Document sought to be considered in review petition was a letter of proposed arrangement from the Bank showing that the outstanding liability was to be cleared up to 30‑12‑2003‑‑­Unless the dues of the Bank were finally paid, the candidate continued to be a defaulter‑‑‑Candidate, in circumstances, was seeking the rehearing of the matter on the basis of the documents which were not even filed with the record of the Constitutional petition under review‑‑‑Scope of review being very narrow, High Court dismissed the petition in circumstances.

Haji Nawab Din v. Qazi Abdul Saeed 1973 SCMR 143; Muhammad Zafar Ullah Khan v. Muhammad Khan and another 1975 SCMR 473 and Mst. Shamim Akhtar v. Syed Alim Hussain and others 1975 SCMR 16 ref.

Dr. Abdul Basit for Petitioner.

Kh. Saeed‑uz‑Zaffar, Deputy Attorney‑General for Pakistan.

P L D 2003 Lahore 169

Before M. Javed Buttar, Ch. Ijaz Ahmad and Syed Jamshed Ali, JJ

Rao TARIQ MEHMOOD‑‑‑petitioner

Versus

ELECTION TRIBUNAL, PUNJAB, LAHORE and another‑‑‑Respondents

Writ Petition No.16711 of 2002, decided on 17th September, 2002.

(a) Conduct of General Elections Order [Chief Executive's Order 7 of 2002]‑-

‑‑‑Art. 8D(2)(o) & 8D(1)(g)‑‑‑Representation of the People Act (LXXXV of 1976), S.14(5‑A)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Rejection of nomination papers of the candidate for election to Provincial Assembly on the ground of his being defaulter of the Bank under the decrees‑‑‑Validity‑‑‑Candidate was a Director of the Company against whom a Competent Banking Court had passed two decrees for Rs.15,88,945 and Rs.30,14,689 in favour of Bank, severally and jointly including the candidate‑‑‑Candidate did not attach copies of the plaints alongwith the annexures filed by the Bank against the company and others‑‑‑Defendants candidate and others had not appealed against the said decrees‑‑‑Fact that was decrees had been passed against the Company, of which the candidate vas one of the Directors, jointly and severally, was not mentioned by the candidate in the columns of the liabilities, verifications and in the affidavit submitted in the nomination papers‑‑‑Effect‑‑‑Such conduct of the candidate clone was sufficient to come to the conclusion that the candidate was not qualified to contest the election in view of S.8D(1)(g) of the Conduct of General Elections Order, 2002‑‑Decrees having remained unsatisfied and the debt having not finally been repaid, the candidate was a defaulter of a Bank loan and his nomination papers were rightly rejected in view of S.14(5‑A) of he. Representation of the People Act, 1976.

(b) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑Ss. 14(3)(c), 12 & 13‑‑‑Conduct of General Elections Order [Chief Executive's Order 7 of 2002], Art.8D(1)(g)‑‑‑Constitution of Pakistan 1973), Art. 199‑‑‑Constitutional petition‑‑‑Rejection of nomination papers of a candidate for election of Provincial Assembly on the ground of his being defaulter of Bank loan and suppressing such liabilities in the nomination papers‑Validity‑‑‑Provisions of Ss.12 & 13, Representation of the People Net, 1976 contemplate rejection of the nomination papers of a candidate if tie provisions of said sections are not complied with‑‑Candidate had suppressed his liabilities/Bank loan from his nomination papers and filed false affidavit thereby attracting the provision of Art. 81)(1)(g) of the Conduct of General Elections Order, 2002‑‑‑Said candidate could not be considered as a honest person due to the non‑disclosure of his liabilities in his nomination papers, therefore, he stood disqualified from contesting the election to the Provincial Assembly and his nomination papers were, thus, rightly rejected.

Babu Muhammad Munir v. Appellate Tribunal of the Election Commission and others 1993 SCMR 2348 and Aijaz Ali Khan Jatoi v. Liaquat Khan Jatoi 1993 SCMR 2350 fol.

Ghulam Mustafa Jatoi's case 1994 SCMR 1299; Bhagwandas Chawala v. Kishanchand Parvani and others 1997 CLC 605; Syed Nasir Ali Rizvi v. Mirza Nasir Baig and others 1997 CLC 719; Sardar Talib Hussain Nakai v. Returning Officer and another 1993 MLD 2485 and Haji Ghulam Sabir Ansari v. Returning Officer 1993 MLD 2508 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Such jurisdiction is discretionary in nature and he who seeks equity must come to the Court with clean hands‑‑‑Where the candidate in an election had concealed liabilities in the nomination papers as prescribed by the relevant law, High Court declined to exercise such jurisdiction.

Abdul Rashid v. Pakistan and others 1969 SCMR 141; Principal, King Edward Medical College v. Ghulam Mustafa 1983 SCMR 196 and Rana Muhammad Arshad v. Additional Commissioner (Revenue), Multan Division and others 1998 SCMR 1462 fol.

Sardar Muhammad Latif Khan Khosa for Petitioner.

Kh. Saeed‑uz‑Zaffar, Deputy Attorney‑General for Pakistan.

P L D 2003 Lahore 173

Before M. Javed Buttar and Syed Jamshed Ali, JJ

MUNIR AHMAD KAHLOON‑‑‑Appellant

Versus

Rana MUHAMMAD YOUSAF‑‑‑Respondent

Regular First Appeal No. 876 of 2001, heard on 11th July, 2002.

(a) Stamp Act (II of 1899)‑‑‑

‑‑‑‑Ss. 12, 15 & 49‑‑‑Civil Procedure Code (V of 1908), O.XXXVII, Rr.1, 2 & 3‑‑‑Suit for recovery of amount on basis of pronote‑‑‑Adhesive stamp, cancellation of‑‑‑Purpose of cancellation ‑‑‑Pronote in question bore 25 adhesive stamps of Rs.2 each and out of those 25 stamps, 23 were crossed by drawing a line while two stamps on face of pronote did not bear any line‑‑­Adhesive stamp could be cancelled in any effectual manner besides writing name or initials of person executing instrument chargeable with duty‑‑‑Object of cancellation of stamp was to avoid its reuse‑‑‑Subsection (2) of S.12 of Stamp Act, 1899 provided that the instrument would be deemed to be unstamped only to the extent of stamp which had not been cancelled‑‑‑Even by drawing a line on 23 out of 25 stamps, in the present case, those were duly cancelled and provisions of S.12 of Stamp Act, 1899 had substantially .been complied with‑‑‑Instrument would be deemed to be unstamped only to the extent of stamp which had not been cancelled‑‑‑Only two stamps having not been cancelled, pronote in question was insufficiently stamped to the extent of those two uncancelled stamps‑‑‑Pronote could be admitted in evidence on payment of penalty provided under law but it could not be held that pronote in question which was insufficiently stamped could have formed the basis of rejection of claim of the plaintiff‑‑‑Payment of stamp duty was a matter between a citizen and the State and an adversary could not be permitted to capitalize on a technicality which otherwise was not fatal to the suit‑‑‑Provisions of Ss. 12 & 35 of Stamp Act, 1899 should not be interpreted in such a manner that those were allowed to operate as a tyrant master.

K.M. Munir v. Mirza Rashid Ahmad PLD 1963 (W.P.) Kar. 905; K.M. Munir v. Mirza Rashid Ahmad PLD 1964 (W.P.) Kar. 172; Mirza Arif Baig v. Mubarik Ali PLD 1992 Lah. 366; U.B.L. Ltd., Mianwali v. Muhammad Khan and another PLD 1988 Lah. 424; Sirbaland v. Allah Loke and others 1996 SCMR 575; Mst. Sajida Abbas Zaidi v. Syed Arshad Ali Jafri 1990 CLC 1018; Amin Jute Baling Co. Ltd. v. Aminpur Union Cooperative Multipurpose. Society Ltd. PLD 1961 Dacca 102 and Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique PLD 1978 SC 279 ref.

(b) Interpretation of statutes‑‑

‑‑‑ While interpreting a provision of law, as far as possible, technicalities were to be avoided and an interpretations which would advance cause of justice and thereby public good, was to be referred.

(c) Stamp Act (II of 1899)--

‑‑Ss. 36 & 61‑‑‑Document not duly stamped‑‑‑Admissibility in evidence ­under S.36 of Stamp Act, 1899 once the instrument war admitted in evidence, same could not be called in question at any stage of suit or proceedings on the ground that it was not duly stamped except under S.61 of­ Stamp Act, 1899‑‑‑Even if Court had wrongly admitted an instrument not oily stamped, Appellate Court was prevented by S.36 of Stamp Act, 1899 to call in question admission of such a document.

Union Insurance Company of Pakistan Ltd. v. Haft Muhammad Siddique PLD 1978 SC 279 ref.

Ch. Nusrat Javed Bajwa for Appellant.

Ch. Riaz Aslam for Respondent.

Date of hearing; 11th July, 2002.

P L D 2003 Lahore 180

Before Mrs. Fakhar un Nisa Khokhar, J

NADIR ALI and others‑‑‑Appellants

Versus

Mst. BEGUM BIBI and others‑‑‑Respondents

Regular Second Appeal No. 16 of 1975, decided on 20th November, 2002.

(a) Punjab Tenancy Act (XVI of 1887)‑‑‑

‑‑‑‑S. 59‑‑‑Limited owner‑‑‑Right of widow‑‑‑Extent‑‑‑Widow, after conferment of proprietary rights cannot alienate the entire holding to the detriment of her legal heirs but each case stands on its attending circumstances.

(b) Punjab Tenancy Act (XVI of 1887)--‑

‑‑‑‑Ss. 8 & 14‑‑‑Gift of property by occupancy tenant‑‑‑Deceased was occupancy tenant of the suit land who died issueless and after his death the occupancy rights were sanctioned by the Revenue Authorities in favour of his sister‑‑‑Sister of the deceased during her holding gifted the suit land‑‑­Proprietors/plaintiffs assailed the transaction being based on collusion and fraud‑‑‑Defendants contended that the sister of the occupancy tenant had deposited the compensation under Punjab Tenancy Act, 1887, which was duly received by the plaintiffs, therefore, the gift made in favour of the defendants was legal‑‑‑Trial Court found sister of the occupancy tenant as limited owner and suit was decreed in favour of the plaintiffs‑‑‑First Appellate Court reversed the findings of Trial Court, allowed the appeal and set aside the judgment and decree passed by the Trial Court‑‑‑Plea raised by the proprietors/plaintiffs was that the provisions of Ss. 8 & 114 of Punjab Tenancy Act, 1887, were mis‑interpreted and misconstrued by the First .appellate Court‑‑‑Validity‑‑‑None of the legal heirs had come forward and challenged the alienation of entire holding through gift while it was challenged by the proprietors of the disputed property‑‑‑Right of the proprietors/plaintiffs became extinct at the time when the mutation of last occupancy tenant was sanctioned in favour of the sister of the deceased occupancy tenant‑‑‑Under S.114 of Punjab Tenancy Act, 1887, the proprietary rights devolved upon the occupancy tenants and she had deposited the entire price‑‑‑Owners of the disputed property were challenging the mutation of occupancy tenancy in favour of the sister through civil suit and then consenting in appeal about her right as 'limited owner' till lifetime but the owners did not challenge the conferment of the proprietary rights upon the sister under S.114 of Punjab Tenancy Act, 1887. First Appellate Court had rightly found that the sister had become absolute owner after the extinction of rights of proprietors and could alienate her entire holding in absence of any legal heir challenging the same‑‑‑High Court declined to interfere with the judgment and decree passed by the First Appellate Court.

Rabnawaz v. Jahana PLD 1974 SC 210; Mst. Began v. Mst. Bai PLD 1971 Lah. 567; Adam Khan and others v. Zarin Shah and others 1992 SCMR 1771; Ali Begum and 2 others v. Zardad Khan and others 1994 SCMR 1140; Ghulam Muhammad v. Mst. Amiran Khatoon and others 1987 SCMR 1232 and Sardar Muhammad Yousaf and others v. Government of Pakistan PLD 1991 SC 760 distinguished.

M. Aftab Iqbal Chaudhry for Appellants.

Malik Muhammad Hussain Awan for Respondents.

Date of hearing: 12th November, 2002.

P L D 2003 Lahore 186

Before M. Akhtar Shabbir, J

ABDUL REHMAN and 5 others‑‑‑Petitioners

Versus

AMRAT‑‑‑Respondent

Civil Revision No.220 of 1991, heard on 13th May, 2002.

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑

‑‑‑‑S. 3‑‑‑Limited estate‑‑‑Muslim female, rights of‑‑‑Limited estate in respect of immovable property held by Muslim female under the customary law was terminated under S.3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.

(b) Islamic law‑‑‑

‑‑‑‑Inheritance‑‑‑Opening of‑‑‑Inheritance of Muslim deceased opens at the time of death of Muslim owner of the property.

(c) Custom (Punjab)‑‑

‑‑‑‑ Limited estate, termination of ‑‑‑Effect‑‑‑After termination of limited estate, the property would devolve on the legal heirs of the original male owner of the property and every legal heir would be entitled to inherit his share as if the original owner had died then.

(d) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑

‑‑‑‑S. 3‑‑‑Transfer of total holding by widow as owner of limited estate‑‑­Validity‑‑‑Widow, as limited owner had no authority under law to transfer the total holding of the deceased owner.

(e) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑

‑‑‑‑S. 3‑‑‑Transfer of property by limited estate owner‑‑‑Grievance of the plaintiff was that the widow of the deceased owner could not transfer the total holding as owner of limited estate‑‑‑Trial Court decreed the suit in favour of the plaintiffs but the Appellate Court reversed the findings of the Trial Court and the suit was dismissed‑‑‑Plea raised by the plaintiffs was that after the promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the owner of limited estate could not transfer the property beyond her share‑‑Validity‑‑‑Limited estate had been extinguished by West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, and the legal heirs were declared entitled to their legal shares out of the property left by their predecessor‑in‑interest, the original owner‑‑‑Widow being the limited holder of the property could not transfer the same to the defendants and after the termination of her estate, she was entitled' to the extent of 1/8th legal share‑‑‑Alienation by the widow in favour of defendants to the extent of her legal share would be valid and exceeding that would revert to her reversioners/sons of the deceased owner, who were alive at the time of his death‑‑‑Judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored in circumstances.

Abdul Ghafoor and others v. Muhammad Shy and others PLD 1985 SC 407 and Mst. Zainab Bibi and others v. Muhammad Yousaf and 4 others 1995 SCMR 868 ref.

(f) Co‑sharer‑‑‑

‑‑‑‑Possession of one co‑sharer on every inch of land is for the benefit of other co‑sharers and if the mutation had been attested in favour of some of the co‑sharers, that would not extinguish the title, of the other co‑sharers.

Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512 rel.

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

‑‑‑‑S. 8‑‑‑West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S.3‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S. 45‑‑­Recovery of possession by co‑sharer‑‑‑Accrual of cause of action‑‑‑Entry in Revenue Record‑‑‑Plaintiffs assailed mutation on the basis that the transferor was owner of limited estate and under S.3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, she could not transfer the property in excess of her legal share‑‑‑Judgment and decree passed by Trial Court in favour of the plaintiffs was set aside by Appellate Court on the ground that the suit was barred by time‑‑‑Plaintiffs contended that as they were co sharers, therefore, they had a continuous cause of action‑‑‑Validity‑‑‑Entry in the record of rights if was adverse to the interest of the plaintiffs and if on every such entry at every four years there was denial of the right of plaintiffs, the plaintiffs had the option to file a suit on every denial and every denial would furnish a fresh cause of action‑‑‑Such aspect of the case had not been adverted to by the Appellate Court who passed the judgment‑‑­Judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored.

Bahadar through Legal Heirs v. Muhammad Aslam and another 1994 SCMR 116 and Muhammad Bakhsh through Legal Heirs v. Muhammad Shafi and 8 others 1997 SCMR 1218 ref.

Wali and 10 others v. Akbar and 5 others 1995 SCMR 284 and Muhammad Yousaf through his L.Rs. and others v. Noor Din and others 1993 MLD 763 rel.

Munir Ahmad Kayani for Petitioner.

Zahida Amin for Respondent.

Date of hearing: 13th May, 2002.

P L D 2003 Lahore 192

Before Sayed Zahid Hussain, J

Syed SHAUKAT ALI SHAH‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, Camp at Shakargarh, District Narowal and 20

others‑‑‑Respondents

Writ Petition No.22362 of 2001, heard on 8th October, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VI, R.17 & O. VIII, R.1‑‑‑Specific Relief Act (I of 1877), S.42‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for declaration‑‑‑Amendment in written statement‑‑‑Defendants in their written statement admitted para. 1 of the‑plaint as correct‑‑‑After framing of issues and after recording evidence of plaintiff case was set for recording evidence of defendants‑‑‑Defendants after about five years of framing of issues and recording evidence of plaintiff filed application seeking amendment in their written statement‑‑‑Such application was dismissed by Trial Court but was allowed in appeal‑‑‑Validity‑‑‑Amendment was sought to the effect that statement in para. 1 of written statement as 'correct' was result of some oversight and that it should be allowed to be written as 'incorrect' or 'denied'‑‑‑Such an amendment which had militated against earlier stance of defendants was opposed by the plaintiff as the amendment had the character of converting admission into a denial which had effect of changing the scope and complexion of controversy‑‑‑Effect of such amendment would be not only the total reopening of the matter, but would also require a de novo trial‑‑‑Amendment in question was rightly refused by Trial Court and Appellate Court was not justified to allow the same‑‑‑Court no doubt could, exercise power of amendment in pleadings liberally, but facts and circumstances of the case and effect of sought for amendment could not be ignored while exercising said power‑‑‑Constitutional petition was accepted and order of the Appellate Court was declared as of no legal effect.

Qaid Juhar and another v. Mst. Hajiani Hajra Bai and another PLJ 2002 Karachi 100; Mst. Imam Hussain v. Sher Ali Shah and others 1994 SCMR 2293; Atlantic Steamer's Supply Company v. m.v. Titisee and others PLD 1993 SC 88; Muhammad Ikramullah Khan and 30 others v. Additional District Judge‑III, Rahimyarkhan and 5 others 2001 YLR 2272; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322; Muhammad Samiullah Khan v. Additional District Judge, Sargodha PLD 2002 Lah. 56; Muhammad Khan and 6 others v. Mst. Ghulam and 12 others 1991 SCMR 970; Noor Muhammad v. Sarwar Khan and 2 others 1985 SC 131 and Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65 ref.

Pervez Inayat Malik for Petitioner.

Taqi Ahmad Khan for Respondent.

Date of hearing: 8th October, 2002.

P L D 2003 Lahore 194

Before Maulvi Anwarul Haq, J

ZAHOOR AHMAD and 21 others‑‑‑Petitioners

Versus

Mst. IRSHAD BEGUM and 12 others‑‑‑Respondents

Civil Revision No. 1280 of 1996, heard on 20th May, 2002.

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

----S. 52‑‑‑Presumption of truth in matter of periodical records ‑‑‑Extent‑­Presumption of truth in the matter of periodical records was attached only to the Column of Ownership and possession and not to the Column of Lagan.

Gul Muhammad through Legal Heirs v. Allah Yar Khan and 15 others 1993 SCMR 2330 and Said Amir and others v. Ashraf Khan and others PLD 1986 SC 113 ref.

(b) Adverse possession‑‑

‑‑‑Suit for‑‑‑Plaintiffs on the one hand had claimed that suit land was purchased by ahem from the ancestors of defendants and on the other hand had taken plea of adverse possession‑‑‑Entire evidence on record had shown that defendants were owners of suit land both before consolidation proceedings and after consolidation proceedings and that suit land was given in lieu of land owned by their predecessor‑in‑interest‑‑‑Person asserting ownership over a certain property by purchase, would not be legally justified at the same time to say that his occupation over the property was hostile or adverse against the real owner thereof‑‑‑Trial Court, in circumstances, had rightly dismissed the suit and Appellate Court was not justified to set aside judgment and decree passed by Trial Court.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 ref.

Muhammad Sharif Butt for Petitioners.

Manzoor Hussain Butt for Respondents.

Date of hearing: 20th May, 2002.

P L D 2003 Lahore 197

Before Sayed Zahid Hussain, J

MUHAMMAD BASHIR‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB through Collector, Gujrat and 3 others‑‑‑Respondents

Civil Revision No. 1051‑D of 1998, heard on 27th August, 2002.

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

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Plaintiff had claimed that he was owner in the village and also co‑sharer in Shamlat‑Deh and that he having not made any encroachment, demolition of construction raised by him were illegal‑‑‑Important issue in the case was as to whether plaintiff was entitled to decree claimed for‑‑‑Trial Court while deciding that issue proceeded on the premises that in proceedings under S.133, Cr.P.C. it was found by Illaqa Magistrate that plaintiff had encroached upon the land which was a public place‑‑‑Said order was maintained by the Appellate Court‑‑‑Trial Court while deciding essential issue in the case did not discuss or take into consideration copies of Revenue Record produced before it‑‑‑Mere reliance upon findings in an order passed by Illaqa Magistrate in proceedings under S.133, Cr.P.C. in context of dispute and controversy, was not enough to rest the fate of civil suit thereon and to dismiss the same for that reason‑‑‑Approach of Trial Court to the matter was somewhat inconsistent and irreconcilable inasmuch as it was found that plaintiff was owner in village and disputed site was claimed by him as a co‑owner in Shamlat Deh which had not yet been partitioned‑‑­Judgments of two Courts below suffering from illegality and material irregularities, were unsustainable in law‑‑‑High Court set aside concurrent judgments of Courts below with direction that suit filed by plaintiff be decided afresh in accordance with law.

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

‑‑‑‑S.8‑‑‑Deciding question of title‑‑‑Jurisdiction of Civil Court‑‑‑Question of title when involved or cropped up, it was Civil Court which was to decide same.

Central Cooperative Bank Ltd., Sargodha v. Ahmad Bakhsh PLD 1970 SC 343; Azam Khan and another v. The State and another 1989 PCr.LJ 2286 and Muhammad Shuaib v. Sessions Judge, Swat and others 1994 SCMR 665 ref.

(c) Administration of justice‑-

‑‑‑‑ Judicial Officer has to decide matter before him in accordance with evidence produced in that matter‑‑‑Determination of right of parties has to be in accordance with law applicable.

Sh. Naveed Shaheryar for Petitioner.

Muhammad Hanif Khatana, Addl. A.‑G. with Suhail Rizwan, Naib-­Tehsildar, Muhammad Anwar Girdawar and M. Ilyas Patwari for Respondents, Nos. 1 to 3.

Nemo for Respondent No.4.

Date of hearing: 27th August, 2002.

P L D 2003 Lahore 200

Before Maulvi Anwarul Haq, J

TAHIR AHMED SANDHU, EXTRA ASSISTANT COMMISSIONER, FEROZEWALA‑‑‑Petitioner

Versus

DEPUTY COMMISSIONER, SHEIKHUPURA and 3 others‑‑‑Respondents

Writ Petition No. 15441 of 1999, heard on 6th August, 2002.

Stamp Act (II of 1899)‑‑‑

‑‑‑‑S. 27‑A & Sched, Art. 23‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Sale of property‑‑‑Determination of stamp duty to be paid by purchaser‑‑‑Petitioner who at the relevant time was Sub‑Registrar of the area concerned had been accused of failing to recover stamp duty in accordance with the value as notified under S.27‑A of Stamp Act, 1899 for the area in question and incidental tax/charges‑‑‑Further allegation against the petitioner was that in the area in question notified value of land was Rs.1,18,000 per acre and according to that rate value of land had come to Rs.23,43,60,000 which called for payment of stamp duty of Rs.2,34,36,000 and after including other taxes total payable was Rs.4,10,13,000 whereas purchaser had paid only Rs.30,62,500 and by so doing loss of Rs.3,39,50,000 had been caused to the public exchequer‑‑‑When the document was presented before the petitioner, value of land in area concerned as notified in terms of S.27‑A of Stamp Act, 1899 was Rs.18,00,000 per acre‑‑‑Value of land according to said rate would come to Rs.1,46,47,500 whereas consideration recorded in document was Rs.1,75,00,000‑‑‑Value of the land stood calculated according to valuation table notified by Collector‑‑‑Petitioner could not be said to have committed any illegality‑‑‑Proceedings initiated against petitioner, were declared without lawful authority by the High Court.

Shaukat Rafiq Bajwa for Petitioner.

Fauzi Zafar, A.A. ‑G. for Respondents.

Date of hearing: 6th August, 2002.

P L D 2003 Lahore 204

Before Abdul Shakoor Paracha, J

FEROZE DIN‑‑‑Petitioner

Versus

ABDUL SATTAR and 4 others‑‑‑Respondents

Civil Revision No. 1040‑D of 1996, heard on 9th September, 2002.

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

‑‑‑‑S. 107‑‑‑Registration Act (XVI of 1908), Ss.17 & 49‑‑‑Non‑registration of document required by law to be registered‑‑‑Admissibility‑‑‑Relationship of landlord and tenant‑‑‑Document required by law to be registered, if was not registered, same was not admissible in evidence, but a rent deed which was required to be registered and was executed by tenant in favour of landlord, could be relied upon to establish relationship of landlord and tenant between the parties.

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

‑‑‑‑S. 8‑‑‑Suit for possession‑‑‑Plaintiff having based his claim on suit property on ownership having title, suit could proceed under S.8 of Specific Relief Act, 1877.

Ghulam Rasool v. Muhammad Waris Bismil 1994 MLD 527 ref.

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

‑‑‑‑O. VII, R. 11‑‑‑Specific Relief Act (I of 1877), S.8‑‑‑Rejection of plaint‑­‑Plaint could have been rejected if suit was barred under any law‑‑‑Courts below in the present case had not mentioned the, law under which suit of plaintiff was barred‑‑‑Mere non‑registration of lease deed would not debar plaintiff to seek remedy of possession under S.8 of Specific Relief Act, 1877.

Taki Ahmad Khan for Petitioner.

Nemo for Respondent.

Date of hearing: 9th September, 2002.

P L D 2003 Lahore 208

Before Muhammad Khalid Alvi, J

HAJI MUHAMMAD ‑‑‑Petitioner

Versus

Syed MANZOOR HUSSAIN SHAH‑‑‑Respondent

Civil Revision No.509 of 1985, decided on 6th August, 2002.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 2(c) & 21‑‑‑West Pakistan Urban Rent. Restriction Ordinance (VI of 1959), S.2(b)‑‑‑"Court"‑‑‑Rent Controller‑‑‑Not a "Court"‑‑‑Application for order of reference‑‑‑Parties to a pending suit were required to apply to the Court for referring their dispute to an arbitrator‑‑‑ "Court" means a Civil Court or a Small Causes Court‑‑Rent Controller being a persona designata, would not fall within definition of "Court" under S.2(c) of Arbitration Act, 1940‑‑‑Reference made during pendency of rent proceedings to arbitrator would not require any intervention of Rent Controller.

1982 CLC 2377; PLD 1967 Dacca 603; AIR 1952 Pat. 66 and PLD 1922 SC 310 (sic) ref.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14, 16 & 17‑‑‑Award‑‑‑Making award rule of Court‑‑‑Compulsory registration‑‑‑Award which was not presented before any Court for making same rule of Court, could not operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest whether vested or contingent in the property in dispute‑‑‑Award which had not been made rule of Court, also would not require registration because it would not create any right or title‑‑‑Such award could, however, be used as piece of evidence during proceedings‑‑‑When such an award was made rule of Court, it was only then that its registration would become compulsory.

PLD 1967 Lah. 365 ref.

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

‑‑‑‑S. 53‑A‑‑‑Specific Relief Act (I of 1877), Ss.12 & 55‑‑‑Suit for possession and mandatory injunction‑‑‑Protection under S.53‑A of Transfer of Property Act, 1882‑‑‑Defendant contended that he being in possession of suit property under a valid sale from vendor who himself had purchased the suit property from original owner, his possession was protected under S.53‑A of Transfer of Property Act, 1882‑‑‑Validity‑‑‑Condition precedent for such protection was that defendant should have placed on record something in writing from original owner or from subsequent vendor from whom defendant had claimed to have purchased suit property, signed by them or on‑their behalf, from which terms necessary to constitute transfer of suit property, could be ascertained with reasonable certainty‑‑‑In absence of any such signed writing from the alleged vendors, defendant was not entitled to any protection under S.53‑A of Transfer of Property Act, 1882.

Muhammad Waseem Shahab for Petitioners.

Kanwar Akhtar Ali for Respondents.

Date of hearing: 30th July, 2002.

P L D 2003 Lahore 213

Before Tassaduq Hussain Jillani and Abdul Shakoor Paracha, JJ

Raja MUHAMMAD NASIR‑‑‑Appellant

Versus

MAHMOOD SHAUKAT BHATTI and 4 others‑‑‑Respondents

Election Appeal No. 153/A of 2002, decided on 13th September, 2002.

Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss. 14(5) & 99(1)(cc)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.164‑‑­Acceptance of nomination papers‑‑‑Appellant, a rival candidate, had challenged acceptance of nomination papers of respondent on ground of lack of requisite qualification i.e. Bachelor's Degree to contest elections‑‑­Respondent in his nomination papers had shown his educational qualification as a Bachelor of Business Administration from a foreign institution‑‑­Commission appointed by Court, to verify foreign degree of respondent, contacted the Registrar of said Foreign Institution through Fax or internet and reply received from the Registrar of Foreign Institution was to the effect that respondent was enrolled for one semester only, but he was not granted any type‑of degree or diploma from the said institution‑‑‑Respondent raised objection to the admissibility of report received through Fax or Internet, but same were rejected in view of the fact that under Art. 164 of Qanun‑e-­Shahadat, 1984 Court could allow and use any evidence that was available through modern devices or techniques‑‑‑Computer technology being a "modern technique" was well within ambit of Art. 164 of Qanun‑e‑Shahadat, 1984‑‑‑Information received from the Competent Authority of Foreign Institution concerned, could be considered especially when same was further verified through Commission appointed by High Court‑‑‑Respondent had fully been proved, to have never received Degree of Bachelor of Business Administration and that degree produced before Returning Officer was a fake document‑‑‑Respondent was not eligible to contest election as he lacked basic educational qualification i.e. Bachelor's Degree in terms of S.99(1)(cc) of Representation of the People Act, 1976.

Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 56 ref.

Farooq Amjad Mir for Appellant.

Syed Ijaz Qutab for Respondent.

Date of hearing, 13th September, 2002.

P L D 2003 Lahore 217

Before Asif Saeed Khan Khosa and Khawaja Muhammad Sharif, JJ

AZHAR HUSSAIN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 1316, 1317, 1294, 1318 and 1561 and Writ Petition No.21135 and Criminal Revision No.857 of 2002 and Murder Reference No.76‑T of 2002, heard on 8th January, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 365‑A/114, 302(b)/34 & 201‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.7(a)/6(2)(a) & 7(b)‑‑‑Appreciation of evidence‑‑‑Persons before whom the accused had allegedly made extra‑judicial confessions had no authority or influence whatsoever to help the accused in any manner either before the complainant party or before the police‑‑‑Said witnesses did not apprehend or tried to apprehend the accused after they had made extra‑judicial confessions and even informed the police and the complainant party about the same after many days when they met the said persons by chance‑‑‑Conduct of the witnesses in this regard had reduced the evidentiary value of their depositions to nothing and the prosecution evidence regarding the extra judicial confession was not worthy of any credence‑‑‑Handwritings in the samples and in, the compared documents were not found to be in the same hand, even otherwise this piece of evidence having not been put to accused during his statement recorded under S.342, Cr.P.C. could not be considered against him‑‑‑Recoveries effected in the case from the accused were practically of no consequence as the same had neither linked them in any manner with the commission of the offence nor were of any corroborative value‑‑‑Prosecution evidence that the sniffing dogs after having smelled the dead body of the deceased had grappled with the accused standing in the line of suspects was not based on true facts particularly when the witness testifying about the role of the dogs had failed to identify the accused in the Court picked up by the said dogs ‑‑‑Medical evidence by its nature and character could not identify the accused in a case of unseen occurrence and all other pieces of prosecution evidence in the case having been disbelieved, convictions of accused could not be upheld on the basis of medical evidence alone ‑‑‑Accused were acquitted in circumstances.

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

‑‑‑‑S. 342‑‑‑Examination of accused‑‑‑Piece of evidence not put to the accused in his statement recorded under S.342, Cr.P.C. cannot be considered against him.

(c) Penal Code (XLV of 1860)‑‑-

‑‑‑‑Ss. 365‑A/114, 302(b)/34 & 201‑‑‑Medical evidence‑‑‑Medical evidence by its nature and character cannot identify a culprit in a case of an unseen occurrence.

Dr. A. Basit with Amjid Pervaiz for Appellant (in Criminal Appeal No. 1316 of 2002).

Zafar Iqbal Chaudhry with Sharjeel Adnan Sheikh for Appellant (in Criminal Appeal No. 1317 of 2002).

Malik Abdul Wahid Chaudhry for Appellant (in Criminal Appeal No. 1294 of 2002).

Zafar Iqbal Chaudhry with Sharjeel Adnan Sheikh for Appellant (in Criminal Appeal No. 1318 of 2002).

Munir Ahmad Bhatti with Mian Muhammad Sikandar Hayat for Appellant (in Criminal Appeal No.1561 of 2002 and for Petitioner (in Criminal Revision No.857 of 2002).

Mian Muhammad Sikandar Hayat for Petitioner (in Writ Petition No.21134 of 2002).

Jahangir Wahlah, Addl. A.‑G. with Mirza Abdullah Baig for the State.

Dates of hearing: 7th and 8th January, 2003.

P L D 2003 Lahore 228

Before Asif Saeed Khan Khosa, J

SANA ULLAH‑‑‑Petitioner

Versus

S.H.O., POLICE STATION CIVIL LINES, GUJRAT and 3 others‑‑‑Respondents

Writ Petition No. 12554 of 2002, heard on 10th January, 2003.

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

‑‑‑‑Art. 175(3)‑‑‑Separation of Judiciary from Executive‑‑‑Tentative assessment of certain facts by an Executive Functionary cannot be automatically termed as a judicial function of such a Functionary so as to attract the provisions of Cl. (3) of Art.175 of the Constitution and for pressing into service the requirement of separation of the Judiciary from the Executive.

Abdul Latif v. Inspector‑General, Police and others 1999 PCr.LJ 1357; Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Byram D. Avari and 3 others v. The State and 4 others PLD 1989 Pesh. 145; Iftikhar Ahmad and another v. S.H.O., Police Station Kohsar, Islamabad and 2 others PLD 2001 Lah. 399; Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122; Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18; M.M.S.T. Chidambaram Chettiar v. Shanmugham Pillai AIR 1938 Mad. 129; Sharif Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another. PLD 1989 Kar. 404; Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others PLD 1994 SC 105; Black's Law Dictionary, 5th Edn., p.760 ; Grammer of Politics by Harold J. Laski, pp.129‑130; M. Bashir Saigol and another v. The State and another PLD 1964 Lah. 148; Muhammad Anwar v. The State 1968 PCr.LJ 1597; Taj Muhammad alias Tajoo v. The State 1991 PCr.LJ 2167; Riaz Ahmad and 3 others v. The State PLD 1994 Lah. 485; Mst. Sajida Parveen v. Ashiq Ali and 3 others PLD 1998 Lah. 3; Muhammad Siddiq v. Rashid Ahmad Ch. and another 1998 MLD 686; Muhammad Akbar v. The State and others PLD 1968 SC 283 ; Mian Fazal Ahmad v. Station House Officer, Gulberg Liberty Market, Lahore and 3 others PLD 2002 Lah. 164; M. Hafeez Ahmad and others v. The State and others 2001 PCr.LJ 218; Mst. Gul Reza and others v. The State and others 2002 PCr.LJ 9; Haji Abdul Latif Memon v. Government of Sindh through Chief Secretary, Home Department, Karachi and 2 others 1999 YLR 577; Mian Ghulam Yasin v. S.H.O., Police Station Chehal Yak, District Multan and another KLR 1997 Cr.C 581; Syed Muhammad Ahmad v. The State.1972 SCMR 85 and Bahadur and another v. The State and another PLD 1985 SC 62 ref.

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

‑‑‑‑S. 154‑‑‑Information in cognizable cases‑‑‑Words "every information relating to the commission of a cognizable offence" appearing in S.154, Cr.P.C. pertain only to the information so supplied and do not pertain to actual commission of a cognizable offence‑‑‑Information supplied should be about an alleged commission of a cognizable offence irrespective of the fact whether such information is ultimately proved to be correct or not and also whether ultimately such an offence is found to have been actually committed or not‑‑‑Station House Officer at such a stage is to be satisfied only to the extent that the information is in respect of an offence which is cognizable.

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

‑‑‑‑S. 154‑‑‑Information in cognizable cases‑‑‑Every information relating to commission of a cognizable offence is to be reduced to writing as an F.I.R. and then an opinion is to be formed subsequently during the investigation regarding the correctness or falsity of such information.

M. Anwar, Barrister‑at‑Law v. The Station House Officer, Civil Lines, Police Station, Lahore and another PLD 1972 Lah. 493; Nazir Ahmad v. Khushi Muhammad and 2 others 1974 PCr.LJ 579 and Ghiasuddin v. Station House Officer, Police Station Pindi Bhattian 1983 PCr.LJ 1085 ref.

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

‑‑‑‑S. 154‑‑‑First Information Report‑‑‑No requirement at the time of registration of the case to give a hearing to the accused named in the complaint‑‑‑Accused cannot claim an opportunity of hearing before registration of F. I. R. against him or before passage of an order in that regard by a Court.

Saeed Ahmad and others v. Naseer Ahmad and others PLD 2000 Lah. 208 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 420/468/471/474‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Quashing of F. I. R. ‑‑‑Alleged alienor of the land in dispute had disowned the agreement to sell relied upon by the accused not only in the Civil Court but also before the Investigating Officer of the case‑‑­Stamp vendor had denied to have issued the stamp paper on which the said agreement to sell was executed‑‑‑Scribe of the agreement to sell had stated before the police that he had not scribed the same upon the instructions of the alleged alienor‑‑‑D.S.P. deputed by the S.S.P. had found allegations against the accused to be prima facie correct whereupon the impugned F.I.R. was registered against him‑‑‑Original agreement to sell was yet to be recovered from the possession of accused and the local police was in a better position to recover the same than the Civil Court‑‑‑A tentative visual comparison of the admitted signatures of the alleged alienor available on his written statement filed in the Civil Court with his alleged signatures on a photocopy of the agreement to sell being relied upon by the accused, had highlighted the necessity of allowing further and continued Investigation of the impugned F.I.R. which did not appear to have been registered with any mala fide intention ‑‑‑F.I.R. had expressly and specifically alleged cheating, forgery and use of a forged document by the accused which could have straightaway Peen chalked out on the basis of receipt of an information relating to commission of such an offence‑‑‑Offences under Ss.468, 471 & 474, P.P.C. although were non‑cognizable yet they could be investigated by the police alongwith the other offence under S.420, P.P.C. which was cognizable‑‑­Even otherwise, local police had obtained permission for investigation in respect of the said non‑cognizable offences from the Area Magistrate‑‑­Allegations levelled against the accused by the complainant being not only serious but also prima facie having substance, needed a thorough investigation by the police and the F.I.R. could be quashed‑‑‑Constitutional petition was dismissed accordingly.

Abdul Latif v. Inspector‑General, Police and others 1999 PCr.LJ 1357; Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Byram D. Mad and 3 others v, The State and 4 others PLD 1989 Pesh. 145; Iftikhar Ahmad and another v. S.H.O., Police Station Kohsar, Islamabad and 2 others PLD 2001 Lah. 399; Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122; Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18; M.M.S.T. Chidambaram Chettiar v. Shanmugham Pillai AIR 1938 Mad. 129; Sharif Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others PLD 1994 SC 105; Black's Law Dictionary, 5th Edn., p.760; Grammer of Politics by Harold, J. Laski, pp.129‑130; M. Bashir Sigol and another v. The State and another PLD 1964 Lah. 148; Muhammad Anwar v. The State 1968 PCr.LJ 1597; Taj Muhammad alias Tajoo v. The State 1991 PCr.LJ 2167; Riaz Ahmad and 3 others v. the State PLD 1994 Lah. 485 and Mst. Sajida Parveen v. Ashiq Ali and 3 others PLD 1998 Lah. 3. Muhammad Siddiq v. Rashid Ahmad Ch. and another 1998 MLD 686; Muhammad Akbar v. The State and others PLD 1968 SC 281; Mian Fazal Ahmad v. Station House Officer, Gulberg Liberty Market, Lahore and 3 others PLD 2002 Lah. 164; M. Hafeez Ahmad and others v. The State and others 2001 PCr.LJ 218; Mst. Gul Reza and others The State and others 2002 PCr.LJ 9; Haji Abdul Latif Memon v. Government of Sindh through Chief Secretary, Home Department, Karachi and 2 others 1999 YLR 577; Mian Ghulam Yasin v. S.H.O. Police Station Chehal Yak, District Multan and another KLR 1997 Cr.C 581; Syed Muhammad Ahmad v. The State 1972 SCMR 85 and Bahadur and another v. The State and another PLD 1985 SC 62; M. Anwar, Barrister‑at‑Law v. The Station House Officer, Civil Lines, Police Station, Lahore and another PLD 1972 Lah. 493; Nazir Ahmad v. Khushi Muhammad and 2 others 1974 PCr.LJ 579; Ghiasuddin v. Station House Officer, Police Station Pindi Bhattian 1983 PCr.LJ 1085; Hazoor Bakhsh v. Senior Superintendent of Police, Rahimyar Khan and 12 others PLD 1999 Lah. 417; Saeed Ahmad and others v. Naseer Ahmad and others PLD 2000 Lah. 208 and Akhtar Hussain Zaidi v. The State PLD 1985 Lah. 662 ref.

A.K. Dogar for Petitioner.

Ishfaq Ahmad Chaudhry for Respondents Nos. 1 and 2.

Zubair Ahmad Farooqi and Muhammad Rafique Warraich for Respondents Nos. 3 and 4.

Dates of hearing: 8th, 12th and 13th November; 13th, 16th December, 2002 and 10th January, 2003.

P L D 2003 Lahore 242

Before Sayed Zahid Hussain, J

MUHAMMAD WARIS and 3 others‑‑‑Petitioners

Versus

PROVINCE OF PUNJAB through Secretary, Cooperative Department, Lahore and 16 others‑‑‑Respondents

Writ Petition No.7375 of 2001, decided on 16th October, 2002.

(a) Approbate and reprobate‑‑

‑‑‑‑ Principle of ‑‑‑Applicability‑‑‑Estoppel‑‑‑Not raising of objection to the proceedings agreed by the parties‑‑‑Parties agreed that the matter should be decided on merits‑‑‑After decision one party raised the question of limitation and contended that the proceedings were time‑barred‑‑‑Validity‑‑‑Not open for the party to have re‑agitated the plea of limitation or the competency of the proceedings‑‑‑Approbation and reprobation could not be allowed in judicial proceedings‑‑‑Having suggested and agreed to a mode of procedure, the party was estopped to resile therefrom and challenge the same.

A.R. Khan v. P. N. Boga through Legal Heir PLD 1987 SC 107 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Order not suffering from jurisdictional error or illegality‑‑‑Grievance of the petitioners was that they were owners of land measuring 42‑1/2 Kanals‑‑‑During consolidation proceedings by the cooperative society, land of the petitioners was increased to 84‑1/21 Kanals as the increased area of land was of the inferior quality than the land of their original holding‑‑‑Matter of increase in the area was taken before the Cooperative Authorities and petitioners were found entitled to 42‑1/2 Kanals of land‑‑‑Validity‑‑‑Original entitlement of the petitioners was 42‑1/2 Kanals‑‑‑No reduction in their entitlement had been made at all‑‑‑Only some excess land was given and then withdrawn from the petitioners, therefore, no injustice had been done to them‑‑‑Order maintaining original entitlement of the petitioners passed by the Cooperative Authorities and maintained by the Provincial Government suffered from no illegality or jurisdictional error‑‑‑High Court declined to interfere with the order passed by the Authorities.

Kh. Muhammad Afzal for Petitioners.

Rana Muzaffar Hussain for Respondents.

Muhammad Hanif Khatana, Addl. A.‑G.

P L D 2003 Lahore 245

Before Maulvi Anwarul Haq, J

GHULAM MUHAMMAD and 5 others‑‑‑Appellants

Versus

SHAMIM AHMAD KHAN‑‑‑Respondent

Regular Second Appeal No.419 of 1980, heard on 19th September, 2002.

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

‑‑‑‑Ss. 3(5), 4 & 15‑‑‑Transfer of Property Act (IV of 1882), S.46‑‑‑Pre­emption‑‑‑Sale, whether divisible or not‑‑‑Criteria for determination stated.

Criteria for determining as to whether the sale is divisible or not is that the shares purchased by vendees are specified in sale document and that the share of price has been separately contributed and paid to vendors by vendees.

Manghta Khan and others v. Mst. Hamida Begum and others PLD 1981 SC 51; Muhammad Riaz and others v. Fateh Muhammad and others PLD 1991 SC 1099; Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140; Allah Yar and others v. Ghulam Jeelani and others 1996 SCMR 662 and Mir Ahmad and others v. Attaullah alias Atta Muhammad and others PLD 1991 SC 210 ref.

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

‑‑‑‑Ss. 4 & 15‑‑‑Transfer of Property Act (IV of 1882), S.46‑‑‑Pre‑emption suit‑‑‑Divisibility of transaction of sale ‑‑‑Pre‑emptor claimed to be a collateral of vendors, whereas vendees pleaded to be tenant in suit land‑‑­Trial Court decreed the suit, while Appellate Court partly accepted appeals of vendees founding that pre‑emptor had no right of pre‑emption to the extent of one vendor being not his collateral and excluded her share‑‑­Contention of one of the vendee was that his share was specified in sale‑deed and he having been proved to be a non‑occupancy tenant in suit land, was entitled to retain land to the extent of his share‑‑‑Validity‑‑‑Plea had not been taken that sale was divisible and that vendees had contributed the price in accordance with their respective shares ‑‑‑Vendees could not take such a plea in their written statement for having pleaded that all of them were tenants in suit land‑‑‑Vendors had stated in sale‑deed that they would receive entire sale price in lump sum from vendees at the time of registration‑‑­Vendee/appellant while appearing as witness stated that sale took place for Rs.35,000 and his share was 3/4th and he paid amount separately in such proportion‑‑‑Such fact had not been stated in sale‑deed‑‑‑Other witness after making statement similar to that of appellant/vendee had admitted that such fact was neither noted in registered sale‑deed nor his presence was recorded therein‑‑‑Nothing turned in favour of vendees on the basis of sale‑deed‑‑­Another witness could not explain as to how the amount was contributed and when and how same was separately paid‑‑‑Courts below had rightly found that sale was not divisible ‑‑‑Appellant/vendee could not be allowed to retain land purchased by him on the ground that he being a non‑occupancy tenant therein had joined strangers with him‑‑‑High Court dismissed the appeal in circumstances.

Sardar Muhammad Aslam for Appellants.

Ch. Afrasiab Khan for Respondent.

Date of hearing: 19th September, 2002.

P L D 2003 Lahore 251

Before Raja Muhammad Sabir and M. Naeemullah Khan Sherwani, JJ

QAYYUM AZAM KHAN‑‑‑Appellant

Versus

RETURNING OFFICER/ADDITIONAL DISTRICT AND SESSIONS JUDGE, PP‑272, DISTRICT BAHAWALPUR and 3 others‑‑‑Respondents

Election Appeals Nos.39‑R, 40‑R and 60‑R of 2002, heard on 5th September, 2002.

Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss. 12, 14(5) & 99(1)(a)(g)‑‑‑Conduct of General Election Order, 2002 [Chief Executive's Order No.7 of 2002], Art.8D(2)(g)‑‑‑Nomination papers, rejection of‑‑‑Appeal‑‑‑Returning Officer rejected nomination papers of the candidates on the ground that they were convicted in criminal case by High Court for ridiculing judiciary and were thus disqualified under Art. 8D(2)(g) of Conduct of General Election Order, 2002 to contest election‑‑‑Appellants had contended that they had tendered unconditional apology and threw themselves at the mercy of Court in contempt proceedings and they had purged themselves of contempt by expressing repentance‑‑‑Appellants had also contended that in recent past they had not defamed judiciary or acted in any prejudicial manner and that action taken against them was a past and closed transaction and their nomination papers could not be rejected on that ground‑‑‑Validity‑‑‑Appellants were convicted by High Court in contempt proceedings for raising abusive slogans against Judges of High Court, taking out procession and having tried to lower integrity and independence of judiciary‑‑‑Mere fact that appellants had not defamed judiciary in the recent past was not sufficient by itself to bring their case out from disqualification‑‑‑Nomination papers of appellants, had rightly been rejected by the Returning Officer.

Maulana Ghulam Dastgir and 2 others v. Mrs. Banazir Bhutto 1991 CLC 571 ref.

Sardar Muhammad Latif Khan Khosa for Appellant.

Muhammad Nawaz Bhatti, Dy. A.‑G. and Rana Muhammad Zahid, Addl. A.‑G. for Respondents.

Date of hearing; 5th September, 2002.

P L D 2003 Lahore 255

Before Mian Saqib Nisar, J

Mst. IQBAL BEGUM and 8 others‑‑‑Petitioners

Versus

MUHAMMAD YOUSAF and 7 others‑‑‑Respondents

Civil Revision No. 1655‑D of 1989, heard on 11th October, 2002.

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

‑‑‑‑O. XIII, Rr. 1, 2 & 4‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 2(1)(c)(4)(5)‑‑‑Document not produced in evidence, but available on record‑‑‑Evidentiary value‑‑‑Such document could be looked into/considered by Court to meet the ends of justice, particularly when reference to same had been made by a witness and his deposition had not been subjected to cross­ examination.

Muhammad Ashraf v. Syed Ghulam Murtaza and others 1993 CLC 185 and PLD 1975 Lah. 1170 ref.

(b) Islamic Law‑

‑‑‑‑ Gift‑‑‑Non‑delivery of possession‑‑‑Consent decree in favour of donee‑‑­Effect‑‑‑Such a gift was invalid as delivery of possession was sine qua non for validity of gift‑‑‑Consent decree obtained by donee in a suit filed against donor could not cure such defect, especially when donor subsequently asserting himself as owner of property in contradiction of gift and consent decree, had sold same.

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

‑‑‑‑S. 2(2)‑‑‑Collusive decree‑‑‑Effect qua subsequent suit filed in respect of same property‑‑‑Such decree even though not challenged by plaintiff was liable to be ignored.

Falak Sher v. Muhammad Rashid and another PLD 1982 Lah. 426 and Ghulam Tayyib v. Shahro Khan and others PLD 1962 BJ 1 ref.

Shahbaz Khurshid for Petitioners.

Shamim Abbas Bukhari and Ch. Siddaqat Ali for Respondents.

Date of hearing: 11th October, 2002.

P L D 2003 Lahore 260

Before Mrs. Fakhar un Nisa Khokhar, J

MUHAMMAD BASHIR‑‑‑Petitioner

Versus

Mst. NASREEN AKHTAR‑‑Respondent

Writ Petition No. 11892 of 2002, decided on .24th January, 2003.

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

‑‑‑‑S. 5 & Sched.‑‑‑Dissolution of marriage on ground of Khula' on the basis that wife had been made victim of cruelty and that she had developed hatred against her husband and that she could not live in matrimonial bondage with him ‑‑‑Factum of cruelty stood proved from evidence of wife and witnesses of both wife and even of the husband‑‑‑Basis of Khula' though was the return of consideration of benefit already received by the wife, but Khula' could also be granted to wife on the basis of facts and circumstances showing that matrimonial union of spouses could not remain within the limits ordained by Allah‑‑‑Whenever Court would come to the conclusion after looking into evidence that factum of cruelty had been proved, then Court would give a release to, wife‑from matrimonial ties‑‑‑Evidence on record, in the present case, had proved that dower amount, though was paid by the husband to wife at the time of Nikah, but same was immediately taken back from her‑‑‑Family Court having dissolved marriage on basis of Khula' suit for restitution of conjugal rights filed by defendant husband against plaintiff wife was rightly considered as infructuous‑‑‑Omission of Family Court to give finding in suit for restitution of conjugal right filed by husband, would not affect merits of case of wife for dissolution of marriage on ground of Khula.

Major (Retd.) Syed Baqar Hussain Shah v. Mst. Rashida Begum 1992 MLD 2515 ref.

(b) Act of Court‑

‑‑‑‑ No one could be punished for an act of Court.

Ch. Sardar Ali for Petitioner.

Muhammad Sharif Khokhar for Respondent.

Date of hearing: 17th January, 2003.

P L D 2003 Lahore 264

Before Mrs. Fakhar un Nisa Khokhar, J

MUHAMMAD ASLAM ‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

Writ Petition No. 874 of 2003, decided on 23rd January, 2003.

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

‑‑‑‑Ss. 2, 5 & Sched.‑‑‑Suit for recovery of maintenance allowance‑‑­Legitimacy of minor‑‑‑Suit for recovery of maintenance for minor girl filed by wife was resisted by husband alleging that minor girl being not his legitimate daughter, he was not responsible for her maintenance allowance‑‑­Minor girl was born in 7th month of the marriage‑‑‑Minor girl born during the said wedlock, was not illegitimate, but was lawful child of the parties‑‑­Whenever wife was charged with adultery, husband would be required to substantiate his accusation of adultery by producing four witnesses, but if no evidence except himself was available, husband would take Oath or Lian‑‑‑If wife also, took Oath, no chances of retraction of charge of adultery would remain with husband and he could be punished if he would retract and retraction would amount to acknowledgement by husband‑‑‑Child who was born within six months of a valid wedlock was a legitimate child under Islamic Law‑‑‑Minor girl born in 7th month of wedlock was lawful child of husband especially when birth entry of minor girl was got registered by the husband‑‑‑Husband was rightly held responsible to pay maintenance allowance to minor girl in circumstances.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.128‑‑‑Legitimacy‑‑‑Child who was born within six months of a valid wedlock was a legitimate child under Islamic Law.

Ch. Muhammad Yousaf for Petitioner.

P L D 2003 Lahore 267

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MAZHAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No. 1135 of 2002, decided on 23rd January, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.6 & 7‑‑­Criminal Procedure Code (V ‑ of 1898), S.439‑‑‑Revision petition ‑‑­ Jursidiciton of Trial Court, determination of ‑‑‑Co‑accused had earlier been tried by a Special Court constituted under the Anti‑Terrorism Act, 1997, at the time when such a Court used to have jurisdiction with reference to certain scheduled offences, but subsequently the said Act was amended and through an amendment in its S.6 jurisdiction of the Special Court was made determinable not with reference to any schedule of offences but with reference to the mens rea and the actus reus specified in the amended S.6‑‑­ Acts allegedly committed by the accused according to the F.I.R. had no intention or mens rea as specified in the said amended provisions‑‑‑Offences had been committed by the accused in the background of personal enmity between the parties and to take private revenge‑‑‑Victims in the case had not been assaulted in their capacity as public servants or with an intention to deter them from performance of their official duties‑‑‑Special Court constituted under the Anti‑Terrorism Art, 1997, for all the aforesaid reasons had no jurisdiction to try the accused and they had been rightly referred to a regular Court for trial‑‑‑Impugned order was not open to any legitimate exception‑‑‑Revision petition was dismissed accordingly.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521 and Muhammad Riaz v. Mian Khadim Hussain, Additional Sessions Judge, Mianwali and others 2002 YLR 203 ref.

Ch. Naseer Ahmad Sindhu for Petitioner.

Rana Habib‑ur‑Rehman for Respondents Nos.2 and 3.

Sajjad Ali Jaffar for the State.

Date of hearing: 23rd January, 2003.

P L D 2003 Lahore 270

Before Muhammad Farrukh Mahmud and Syed Sakhi Hussain Bukhari, JJ

MUHAMMAD AMIN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.87 and Criminal Revision No.65 of 1998/BWP, heard on 15th January, 2003.

(a) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302(b)‑Appreciation of evidence‑‑‑Eye‑witness being the paternal uncle of the deceased and living at a distance of three Kilometres from the place of occurrence, his presence on the spot at 2‑30 a.m. was doubtful‑‑­Even otherwise statement of the said eye‑witness was not convincing and confidence‑inspiring and the same could not be believed‑‑‑Prosecution had failed to prove that the deceased had made her statement before the Investigating Officer who had not even obtained a certificate from a doctor of the hospital before recording her statement that she was fit to make a statement‑‑‑Recording of dying declaration by the police officer instead of a Magistrate had diminished its value and no conviction could be safely based on the same being against the established principles of law and justice‑‑‑No other evidence was available on record to show that the accused had sprinkled kerosene oil on the deceased as a result of which she was burnt‑‑­Accused was acquitted in circumstances.

Muhammad Sadiq v. State 1997 PCr. LJ 794 and State v. Rahim Gul 1999 PCr.LJ 1087 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Dying declaration‑‑‑Great caution is required before relying on a dying declaration which is a weak piece of evidence as its maker is not subjected to cross‑examination.

State v. Rahim Gul 1999 PCr.LJ 1087 ref.

Abdul Sattar Zaffar for Appellant.

Ch. Muhammad Amjad Khan for the Complainant.

Mian Muhammad Bashir, A.A.G.

Date of hearing; 15th January, 2003.

P L D 2003 Lahore 275

Before Syed Sakhi Hussain Bukhari, J

MANZOOR AHMAD‑‑‑Petitioner

Versus

MUHAMMAD SHARIF and others ‑‑‑Respondents

Petition for Special Leave to Appeal No.2 of 2002, decided on 15th January, 2003.

Penal Code (XLV of 1860)‑---

‑‑‑‑Ss. 324/337/148/149‑‑‑Criminal Procedure Code (V of 1898), S.417(2)‑‑‑ Petition for special leave to appeal against acquittal of accused‑‑‑Trial Court had rightly observed in the impugned judgment that the complainant had filed the private complaint as a counter‑blast to pressurize the accused party in the murder case pending against. the complainant party‑‑‑Statements of the prosecution witnesses examined in the complaint were not convincing and confidence‑inspiring‑‑‑Complainant had failed.. to prove his case against the accused beyond any shadow of doubt‑‑‑Conclusions drawn and reasons advanced by the Trial Court showed fair evaluation of evidence in accordance with the settled principles in criminal cases‑‑‑No misreading or non‑reading of evidence by the lower Court was pointed out‑‑‑Impugned judgment was neither perverse nor capricious; rather it was a well‑reasoned judgment and did not call for any interference‑‑‑Petition for special leave to appeal was dismissed accordingly.

Abdul Sattar Zafar for Appellant.

P L D 2003 Lahore 279

Before Sayed Zahid Hussain, J

Dr. ZAHEER ARMED‑‑‑Petitioner

Versus

UNIVERSITY OF AGRICULTURE, FAISALABAD through Vice‑Chancellor and 2 others‑‑‑Respondents

Writ Petition No. 10591 of 2002, decided on 15th January, 2003.

Pakistan Veterinary Medical Council Act (III of 1996)‑‑‑

‑‑‑‑Ss. 9, 23(i)(j)(k)(1)(m)(n), 25 & First Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Alternate adequate remedy, availability of ‑‑‑Notification replacing Degree Course with scheme of study of Five Years Composite Degree Program‑‑‑Contention of petitioners was, That such program was violative of S.9 of the Act; and that recognized qualifications. as mentioned in First Sched. of the Act could not be altered without amending the same through legislation‑‑‑Validity‑‑‑Complaint about transgression of power by Pakistan Veterinary Medical Council could be made to Federal Government under S.25 of the Act‑‑‑Pakistan Anima` Husbandry Association had already lodged similar complaint with Government, which could be examined and enquired into by Commission of Inquiry contemplated by S.25 of the Act.‑‑Such Commission would comprise et a Judge of High Court with two other persons to be appointed by Federal Government‑‑‑Such a high placed Commission could adequately and effectively consider complaint of petitioners in terms of S.25 of the Act‑‑­High Court disposed of Constitutional petition with observations that Commission would examine and enquire into the matter within specified time.

Ch. Muzamal Khan, Advocate.

Ahmad Hassan Shah Bokhari with Dr. Alamdar Hussain Malik.

Dr.Danishwar Malik, Dy. A.‑G. (on Court's call).

P L D 2003 Lahore 283

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUHAMMAD GULZAR and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.297 and Murder Reference No.43‑T of 2002, heard on 16th January, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34, 392/34 & 411‑‑‑Anti‑Terrorism Act (XXVII of 1997), S ‑‑‑Appreciation of evidence‑‑Disappearance of the deceased had not been reported to the police by anybody for two days till the recovery of his dead body‑‑‑Murder of the deceased was an unwitnessed one‑‑‑Prosecution had failed to fix any date, time or place of murder‑‑‑Dead body of the deceased was recovered from a sugarcane field which was neither owned nor possessed by the accused and it was not recovered at pointing out of the accused‑‑‑Record did not show that the accused had been seen by anybody throwing the dead body at the place of its recovery‑‑‑Witnesses of last seen evidence were chance witnesses whose testimony ran contrary to the medical evidence and did not inspire any confidence‑‑‑ Recovery of the car driven by the deceased on a joint disclosure and pointing out of the accused was of no evidentiary value‑‑‑No person from the locality, was even associated with the said recovery despite availability‑‑‑Other incriminating recoveries allegedly recovered at the instance of the accused had been found to be concocted and of no avail to the prosecution‑‑‑Circumstances in which the deceased had met his death had remained shrouded to mystery and the medical evidence did not in any way connect the accused with the alleged crimes‑‑Accused were acquitted in circumstances.

Muhammad Afzal Sargana and Ch. Muhammad Siddique Virk for appellants.

Miss Zarqa Bashir for the State.

Date of nearing: 16th January. 2003.

P L D 2003 Lahore 290

Before Tassaduq Hussain Jilani, Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUHAMMAD RIAZ and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.363 of 2002, heard on 12th November, 2002.

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

‑‑‑‑Ss. 161 & 265‑C(1)(c)‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑­Supply of statements and documents to the accused‑‑‑Accused is entitled, as of right, to get copies of the statements of all witnesses recorded under S.161, Cr. P. C. in terms of S.265‑C(1)(c), Cr. P. C. irrespective of the fact whether they have been cited as witnesses in the calendar attached to the challan or not, seven days before the commencement of the trial‑‑‑ "Witness" as used in S.265‑C, Cr.P.C.‑‑‑Concept‑‑‑Principles‑‑‑[Ahmad Hassan and others v. The State 2002 PCr.LJ 629 overruled].

Report of Law Reforms Commission made in years 1967‑70; Nasrullah v. The State 1980 PCr.LJ 5 and PLD 1992 Lah. 336 ref.

PLD 1966 (W.P.) BJ 30; Nasrullah v. The State 1980 PCr.LJ 5; 1985 PCr.LJ 388; PLD 1979 SC 53: PLD 1987 Lah. 245; 1999 PCr.LJ 46; 1998 PCr.LJ 1795; 1998 PCr.LJ 508; AIR 1957 Mad. 508 and AIR 1960 Bom. 476 mentioned.

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

‑‑‑‑S. 265‑C(1)(c)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 3 & 71‑‑­"Witness" appearing in S.265‑C(1)(c), Cr. P.C. has not been used to convey restricted meanings‑‑‑Term "person" occurring in the said section covers all witnesses who fall in the category of Arts‑3 & 71, Qanun‑e‑Shahadat, 1984‑‑‑Investigation Officer, during the course of investigation examines all such persons who, from the information given to them or otherwise, appear to be acquainted with the circumstances of the case and if the examination of such persons discloses that they had direct or indirect knowledge of the fact regarding which they are being examined, they are to be treated as "witnesses" because their testimony is operational‑‑‑Tetra "person", therefore, covers all those persons who are acquainted with the circumstances of the case including all persons who had been examined and were not acquainted with the circumstances of the cage, that is, whose testimony is not operational‑‑‑Persons who are acquainted with the circumstances of the case are to be termed as "witnesses" ‑‑‑Only such persons whose testimony is operational are to be termed as witnesses and not those whom the prosecution calls for evidence.

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

‑‑‑‑Ss. 161 & 172‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 15, 49, 155, 156 & 157‑‑‑Examination of witnesses by police‑‑‑Diary of proceedings in investigation‑‑‑Relevancy of public record made in performance of duty‑‑‑Nature‑‑‑Refreshing of memory‑‑‑Procedure‑‑‑Provision of S.161, Cr. P.C. is independent of S.172, Cr.P.C.‑‑‑Only the case diaries are meant to he treated as "privileged" and shall not be made accessible to the accused‑‑‑Court, in terms of Art. 15, Qanun‑e‑Shahadat, 1984 can force the Investigating Officer to look into the case diaries. to answer correctly the question put to him in cross‑examination‑‑‑Case diaries can also be used by the Court to trace out the various stages of investigation‑‑Statements recorded under S.161, Cr.P.C. are not privileged even if recorded in the body of the case diaries‑‑­Such statements are public documents within meaning of Art.49, Qanun‑e-­Shahadat, 1984 and are per se relevant under the said Article‑‑‑Privilege stated in S.172, Cr.P.C. is not of absolute nature and provisions of Qanun‑e­-Shahadat, 1984 are independent of the Criminal Procedure Code, 1898‑‑­Principles.

Section 161 of the Cr.P.C. is independent of its section 172. Section 161 requires an Investigating Officer to record statement of a person who is acquainted with the facts of the case separately and section 172 which is independent, relates to maintenance of case diaries as record of the various stages through which the investigation has passed. It is only the case diaries which are meant to be treated as "privileged" and shall not be made accessible to the accused. It means clearly that the statements recorded under section 161 of the Cr.P.C. are not privileged even if recorded in the body of the case diaries. Those are public documents within the meaning of Article 49 of the Qanun‑e‑Shahadat. 1984 and are per se relevant under its Article 49. Moreover, the privilege stated in section 172 of the Cr.P.C. is not of absolute nature. The provisions of the Qanun‑e‑Shahadat. 1984 are independent of the Cr.P.C. An Investigating Officer has to refresh his memory by looking into the case diaries at the time he makes a statement in Court. Article 155 of the Qanun‑e‑Shahadat, 1984 provides that a witness, may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned or so soon afterwards as the Court considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other person and read by the witness within the time aforesaid, if when he read it. he knew it to be correct. Whenever a witness may refresh his memory by reference to any document he may with the permission of the Court, refer to a copy of such document provided the Court is satisfied that there is sufficient reason for the non‑production of the original. An expert may refresh his memory by reference to professional treatises. Article 156 of the Qanun‑e‑Shahadat, 1984 is to the effect that a witness may also testify to facts mentioned in any such document as is mentioned in Article 1.55, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document. Article 157 of the Qanun‑e‑Shahadat, 1984 is to the effect that any writing referred to under the provisions of the two last preceding Articles must be produced arid shown to the adverse party, if he requires it. Such party may if he pleases, cross‑examine the witness thereupon. It is abundantly clear that the privilege referred to in section 172 of the Cr.P.C. is riot of absolute nature and allows the accused to have access to the case diaries to contradict cross‑examination through the Investigating 'Officer. Investigating Officer is bound to look into the case diaries recorded by him during the investigation of a case. In terms of Article 15 of the Qanun‑e-­Shahadat, 1984 the Court can force him to look into case diaries to answer correctly the questions put to him in cross‑examination: The case diaries can be used by the Court to trace out the various stages of investigation.

PLD 1992 Lah. 336 ref.

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

‑‑‑‑S. 161‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.3‑‑‑Examination of witnesses by Police‑‑‑Attestation of witness‑‑‑Admissibility or inadmissibility of evidence and impeachment of credit of a witness‑‑­Procedure‑‑‑Provisions of Qanun‑e-Shahadat, 1984 are independent of the provisions of Criminal Procedure Code, 1898‑‑‑Admissibility or inadmissibility of evidence, production of documents, impeaching the credit of the witnesses, the order in which the witnesses are to be produced, the manner of cross‑examination etc. are the circumstances governed by the Qanun‑e‑Shahadat. 1984‑‑‑Credit of a witness can be impeached by the evidence of persons who testify that they, from their knowledge of the witness. believe him to be unworthy of credit‑‑‑Accused can, if he is in possession of statements of all witnesses, examined by the police under S.161, Cr.P.C., select persons from amongst them to appear and depose to discredit the witnesses examined by the prosecution; similarly the situation may arise where one accused examines a witness in his defence affecting his co‑accused.

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

‑‑‑‑Ss. 162 & 265‑C(1)(c)‑‑‑Evidence Act (I of 1872), 5.145‑‑‑Qanun‑e­Shahadat (10 of 1984), Art.140‑‑‑Use of statement to police in evidence‑‑­Supply of copies of statements of witnesses and documents to the accused‑‑­Provision of S.265‑C(1)(c), Cr.P.C. has impliedly repealed S.162, Cr.P.C. to the extent that provisions of making an application by the accused to get copies of statements of witnesses recorded under S.161, Cr. P.C. at a time when the witnesses have been called by the prosecution to make statements in Court and to make use of such copies only to contradict the witnesses within the meaning of S.145 of the Evidence Act, 1872 (Art. 140 of the Qanun‑e­-Shahadat, 1984)‑‑‑Provision of S.162, Cr.P.C. having become ineffective and inoperative, no more existed on the statute book, now only the provision of S.265‑C(1)(c)., Cr.P.C. controls the supply of copies of statements to the accused‑‑‑Principles.

Section 265‑C(1)(c) of the Cr.P.C. has impliedly repealed its section 162 to the extent that provisions of making an application by the accused to get copies of statements of witnesses recorded under section 161. of the Cr.P.C. at a time when the witnesses have been called by the prosecution to make statements in Court and to make use of such copies only to contradict the witnesses within the meaning of section 145 of the Evidence Act, is unrebuttable. No corresponding amendment has been made in section 162 of the Cr.P.C. so as to bring it in conformity with the provisions of its section 265‑C(1)(c). Since the Evidence Act has been repealed by the same Ordinance, that is, Law Reforms Ordinance, 1972 by which section 265‑C(1)(c) was introduced in the Cr.P.C. the provisions of section 162 of the Cr.P.C., so far as they are inconsistent with the provisions of section 265‑C(1)(c), become ineffective and inoperative and are no more existing on the statute, book. It is now only section 265‑C(1)(c), Cr. P.C. which controls the supply of copies of statements to the accused.

Mian Muzaffar Ahmad for Petitioners.

M. Bilal Khan, Addl. A.‑G. with Tanvir Ahmad Hanjra for the State.

M. Akram Qureshi for the Complainant.

Kh. Sultan Ahmad and S.M. Latif Khosa as Amicus Curiae.

Dates of hearing: 18th, 24th, 25th, 30th September; 7th October and 12th November, 2002.

P L D 2003 Lahore 303

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

NAZAR HUSSAIN SHAH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1094 of 1998 and Murder Reference No.30 of 1999, decided on 25th February, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Motive‑‑‑Proof‑‑‑Accused and deceased were, immediate neighbours and their houses were situated opposite to each other‑‑‑Parties were locked in pitched enmity with each other and numerous cases. of murder and attempted murder had been lodged by them against each other in the past‑‑‑Brother of the accused had been murdered in the year 1992 and deceased in the present case was one of the accused persons booked for that murder but only a few months before the present occurrence he had been acquitted by the Trial Court in that case‑‑‑Held, in the backdrop it was but natural for the accused to be recoiling in anger and frustration while watching him (the deceased) living in the house next door and leading his normal life after his acquittal in the case pertaining to the murder of the accused's brother‑‑‑Accused, in such circumstances, had the requisite motive to do away with the deceased so as to get even with him on that score.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Inconsistency between the statements of .prosecution witnesses made before the Trial Court and their statements before the Investigating Officer‑‑‑Significance‑‑‑Contention of the accused was that according to the F.I.R. as well as the statements made by eye‑witnesses before the Police during the investigation, deceased as well as complainant and his son had also resorted to firing at the accused party but during the trial the eye‑witnesses had deviated from that stand and had not only changed the complainant party's place of presence but had also tried to suppress the factum of tiring by the deceased as well as by the complainant and his son and had further tried to maintain that no gun of the deceased or any empty had been recovered from the spot by the Investigating Officer‑‑­Such shifting of stand, it was contended, established that eye‑witnesses were capable of telling lies and were not shy of changing their stance to hide the truth and it was thus unsafe to rely upon the statements of such witnesses to maintain a conviction of the accused on a capital charge‑‑‑Validity‑‑‑Held, such contention of the accused was insufficient to totally discard the entire testimony of the eye‑witnesses produced by the prosecution‑‑‑Apart from the said particular inconsistency between the statements of said witnesses before the Trial Court and the Investigating Officer there was no other material inconsistency in their statements, especially regarding the role played by the accused during the incident in question‑‑‑Inconsistency pointed out by the accused was only confined to the aspect of firing by the complainant party at the accused party which tiring had admittedly remained ineffective and there was no doubt that the said deviation adopted by the eye‑witnesses before the Trial Court had been intended only to minimise and play down the response of the complainant party to the tiring of the accused party so that at the end of the trial the accused party might not take up a plea of self‑defence‑‑‑Said effort by the eye‑witnesses was only confined to such aspect of the case and the exercise itself had not caused any major dent because at the end of the trial the accused party had indeed chosen not to take a plea of self‑defence and had remained contended with a bare denial‑‑‑Had the accused party taken up a plea of self‑defence, then, obviously, such a suppression by the eye­witnesses qua the initially asserted claim of tiring by the complainant party could have assumed greater importance and significance in the present case‑‑‑Such an inconsistency in the statements of the eye‑witnesses produced by the prosecution, therefore, had not caused any major dent in or significant damage to the prosecution case against the accused, and thus the conviction recorded by the Trial Court could be maintained despite the said deviation adopted by the eye‑witnesses in that regard‑‑‑Prosecution, in circumstances, having proved the guilt of the accused beyond doubt his conviction for an offence under S.302(b), P.P.C. by the Trial Court was upheld by the High Court.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑­Considerations‑‑‑Four co‑accused of the accused who had also been attributed firing at the complainant party had been acquitted by the Trial Court by extending benefit of doubt to them while labouring under the sustained provocation of seeing an alleged murderer of his brother roving scot free and living next door the accused might have been further provoked at the time of the occurrence by the getting together of the complainant party as a cluster in the neighbouring house of the deceased fanning the flames of the frustration already disturbing the accused's peace and sanity and effort made by the eye‑witnesses to suppress at the trial their initially asserted factum about firing by the complainant party at the accused party might well be an effort to hide something from the Court which had in fact sparked off the incident in the present case at the relevant time‑‑‑High Court, in view of said considerations, exercised its discretion in the matter of sentence so as to err on the side of prosecution and to. withhold the sentence of death in the case‑‑‑Sentence of death passed against the accused by the Trial Court was substituted with a sentence of imprisonment for life by the High Court and benefit under S.382‑B. Cr.P.C. was extended to the accused and in default of payment of compensation ordered by the Trial Court the accused was to suffer simple imprisonment of six months.

Raja Muhammad Anwar with Mehreen Anwar Raja for Appellant.

Muhammad Asif Sheikh for the State.

Date of hearing; 25th February, 2003.

P L D 2003 Lahore 310

Before M. Javed Buttar, J

Mrs. AMATUL JALIL KHAWAJA‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior, Islamabad and 3 others‑‑‑Respondents

Writ Petition No.62 of 2003, decided on 17th February, 2003.

(a) Security of Pakistan Act (XXXV of 1952)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Doctrine of implied repeal‑‑‑Applicability‑‑‑Scope‑‑‑Contention was that Security of Pakistan Act, 1952 was a dead law because of its implied repeal due to subsequent promulgation of Defence of Pakistan Ordinance, 1965 and Defence of Pakistan Ordinance. 1971 and due to its resultant non‑existence because of the non‑validation of the Security of Pakistan (Amendment) Ordinance, 1955 in time, by the Federal Legislature‑‑‑Validity‑‑‑Held, Defence of Pakistan Ordinance, 1971 was no more in existence as it was repealed by Defence of Pakistan (Repeal) Ordinance, 1977, therefore there was no repeal by implication‑‑‑Even if it was presumed that the Security of Pakistan Act, 1952 stood repealed by implication because of the promulgation of Defence of Pakistan Ordinance, 1971, the repeal of Defence of Pakistan Ordinance, 1971 on 15‑9‑1977, resulted in the restoration of original law i.e. Security of Pakistan Act, 1952‑‑‑Factors.

Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26; Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.‑W.F.P. and another PLD 1995 SC 66 and Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad v. The General Public PLD 1988 SC 645 rel.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Presumption that Legislature passed the law in ignorance of the fact that the relevant law on the subject had already expired‑‑‑Validity‑‑‑Such presumption was misconceived as no such presumption could be attached to the Acts passed by the Legislature‑‑‑Legislature enacts lays with a complete knowledge of all existing laws pertaining to the same subject‑‑‑Failure to add a repealing clause indicated that the intent was not to repeal any existing Legislation.

Crawford's Statutory Constructions, 1st Edn., p.631 ref.

(c) Security of Pakistan Act (XXXV of 1952)‑‑‑

‑‑‑‑S. 3(1)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Preventive detention ‑‑‑Concept‑‑­Essentials‑‑‑Detaining Authority could not refuse the production of the material before the Court upon which the said Authority claimed to have been satisfied in terms of S.3(1) of the Security of Pakistan Act, 1952‑‑‑Such Authority. however, at the most could claim privilege and request for holding the proceedings in camera.

The law of preventive detention, as it is understood today is that‑‑

(i) the "satisfaction" of the detaining authority must be a state of mind, which has been induced by the existence of reasonable grounds of such satisfaction and therefore, the power of an Authority is not immune to judicial review subject to the right of the State to claim privilege in respect of secret information and the Court's power to hold proceedings in camera, (ii) the existence of reasonable grounds is essential and a mere declaration for satisfaction is not sufficient, (iii) the detaining authority is expected to exercise the public power of apprehension and detention in accordance with law as enjoined by Constitution and not arbitrarily or perversely and therefore the detaining authority can be required by the Court to show that reasonable grounds existed, (iv) merely the subjective satisfaction of detaining authority will not be sufficient to protect the order of detention and the mere production of an order of a detaining authority, declaring that he was "satisfied" cannot be held to be sufficient to satisfy the Court and the Court has to see that the Executive or Administrative Authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirements of the law were satisfied, (v) the Court can in the proper exercise of its Constitutional duty, insist upon the disclosure of the material upon which the Authority had so acted so that it can satisfy itself that the Authority has not acted in an unlawful manner, (vi) it can no longer be regarded as sufficient for the Executive Authority merely to produce its order saying that it is satisfied. It must also place before a Court the material upon which it so claims to have been satisfied so that the Court, in the discharge of its Constitutional duty, be in turn satisfied that the detenu is not being held without lawful authority or in an unlawful manner, (vii) not only the jurisdiction of the detaining authority but also the manner of the exercise of that jurisdiction is subject to judicial review, (viii) the question whether there are grounds upon which a reasonable person would have formed same opinion as that formed by detaining authority, is within the ambit of Constitutional power of judicial review, which power cannot be abridged or taken away by a sub ­constitutional legislation, (ix) it cannot be argued that unless the mala fides is established the detaining authority cannot be called upon to disclose the material upon which he has based his opinion because the action taken upon no ground at all or without application of mind of the detaining authority would also not qualify as action in accordance with law and would therefore have to be struck down as being action taken in an unlawful manner, (x) the Court can satisfy itself that the action taken is not a mere colourable exercise of power or the fraud upon the statute and reasonableness has to be established, (xi) where there are no grounds or the grounds are such that no reasonable person would have acted then that is a case in which the Court in the exercise of its Constitutional power under clause (b)(i) of Article 199(1) of the Constitution can declare the act to have been done in an unlawful manner.

It is thus apparent that detaining Authority could not refuse the production of the material before the High Court, upon which it so claimed to have been satisfied in terms of section 3(1) of the Security of Pakistan Act, 1952. At the most, it could have claimed privilege and requested for holding of the proceedings in camera.

Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and others PLD 1999 SC 57 distinguished.

(d) Security of Pakistan Act (XXXV of 1952)‑‑‑

‑‑‑‑S. 6(1)‑‑‑Constitution .of Pakistan (1973), Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Provision of S.6(1), Security of Pakistan Act, 1952 does not provide that Court cannot require the detaining Authority to disclose the necessary facts‑‑‑Section 6(1) of the said Act merely means that the detaining Authority cannot be required by the detenue to disclose the facts which it considers to be against the public interest to disclose‑‑‑Proviso of S.6(1) of the Act therefore, has not in any manner abridged or taken away the power of High Court of judicial review under Art. 199 of the Constitution‑‑‑Refusal of detaining Authority to decide the detenue's representation on the ground of pendency of Constitutional petition in the High Court especially when it was directed by the High Court to decide the same by a specified date, amounted to refusal of a lawful jurisdiction.

Section 6(1) of the Security of Pakistan Act, 1952 does not provide that the Court cannot require the detaining Authority to disclose the necessary facts. It merely means that the detaining Authority cannot be required by the detenue to disclose the facts which it considers to be against the public interest to disclose. It was held that the question whether there are grounds upon which a reasonable person would have formed same opinion as that formed by detaining Authority, was within the ambit of power of judicial review under clause (b)(i) of Article 199(1) of the Constitution which power cannot be abridged or taken away by a sub‑constitutional legislation. Therefore it cannot be argued that proviso of section 6(1) of the Security of Pakistan Act, 1952 has in any manner abridged or taken away the power of Court of judicial review under Article 199 of the Constitution.

Refusal of detaining Authority to decide the detenue's representations, merely on the ground of the pendency of writ petition in High Court especially when it was directed by High Court to decide the same amounted to refusal to exercise a lawful jurisdiction.

Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 rel.

(e) Security of Pakistan Act (XXXV of 1952)‑‑‑-

‑‑‑‑S. 6(1)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑ ‑‑Refusal of detaining Authority to decide the detenue's representation on the ground of pendency of Constitutional petition in the High Court especially when it was directed by the High Court to decide the same by a specified date, amounted to refusal of a lawful jurisdiction.

(f) Security of Pakistan Act (XXXV of 1952)‑‑‑-

‑‑‑‑Ss. 3(1) & 6(1)‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Preventive detention‑‑‑Validity‑‑‑Material which was produced before the High Court by the detaining Authority had not established the allegations leveled against the detenues and there seemed to exist no reasonable ground against the detenues upon which a reasonable person could come to the conclusion that requirements of law were satisfied in passing the detention order against them ‑‑‑Detenues had been detained merely because of suspicion due to their close relationship with other detenues and the suspicion could not be equated with "satisfaction"‑‑­Detention order to the extent of such detenues was therefore liable to be set aside and they were entitled to be set at liberty at once.

(g) Security of Pakistan Act (XXXV of 1952)‑‑‑--

‑‑‑‑Ss. 3(1) & 6(1)‑‑‑Constitution of Pakistan (1973), Arts. 199 & 40‑‑­Constitutional petition‑‑‑Preventive detention‑‑‑Validity‑‑‑Enough material was available on record, unearthed during the investigation, recoveries effected from the detenues and the evidence collected, which prima facie established the connection of detenues with a Terrorist Organisation as declared by the United Nations Security Council, and Pakistan being a Member State of the United Nations and Signatory of United Nations Resolutions and Conventions, said Organization was treated a terrorist organization in Pakistan‑‑‑Detaining Authority, therefore could validly pass a detention order under S.3(1) of the Security of Pakistan Act. 1952 if such Authority was reasonably "satisfied" that the persons to be detained had connection with the said Terrorist Organization‑‑‑Federation of Pakistan (detaining Authority) was under an obligation under Art.40 of the Constitution to take necessary steps to promote international peace and security and thus detention order to the extent of such persons was justifiable‑‑‑High Court, however, made it clear that any observation by the Court in the present case shall not affect the proceedings in other connected cases.

Mrs. Arshad Ali Khan v. Government of Punjab through Secretary Home 1994 SCMR 1532; Mir Abdul Baqi Baluch v. Government of Pakistan and others PLD 1969 Kar. 87; Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan PLD 1966 SC 286; Maulvi Farid Ahmed v. Government of West Pakistan PLD 1965 (W.P.) Lah. 135; Malik Ghulam Jalani v. Government of West Pakistan through the Home Secretary, Lahore and another PLD 1967 SC 373; Mir Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi and others PLD 1968 SC 313: Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Major Mehtab v. The Rehabilitation Authority and another PLD 1973 SC 451; Goodwin v. Phillips (1907) 7 CLR 1; Kutner v. Phillips (1891) 2 QB 267; Government of West Pakistan v. Haider Bakhsh Jatoi and another PLD 1969 SC 210; Dr. Muhammad Shoaib Suddle v. Province of Sindh through Secretary, Home Department Sindh, Civil Secretariat, Karachi and others 1999 PCr.LJ 747: Khadija Bhabha v. Province of Sindh through the Secretary to the Government of Sindh, Home Department, Karachi and 2 others PLD 1973 Kar. 421; Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283; State v. Zahoor Elahi PLD i977 SC 394: Federation of Pakistan v. Malik Ghulam Jilani PLD 1974 SC 402: Haji Muhammad Shabbir Ahmed Khan v. Federation of Pakistan through Attorney‑General for Pakistan and another PLD 2001 SC 18: Al‑Qur'an: Surah 9, AI‑Tawbah, Verse 38; Surah 4: AI‑Nisa, Verses 75. 95; Surah 2: AI‑Baqarah, Verse 193: Lahore Improvement Trust v. The Custodian; Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 81 1; Tanvir A. Qureshi v. President of Pakistan, President House, Islamabad and 3 others PLD 1997 Lah. 263; Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and others PLD 1999 SC 57: Mohtarma Benazir Bhutto v. The President of Pakistan through the Secretary to the President PLD 1992 SC 492: Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan PLD 1964 (W.P.) Kar. 478; Halsbury's Laws of England, 3rd Edn., Vol.36. p.465; Crawford's Statutory Construction, 1st Edn‑ p.631; Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26; Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.‑W.F.P. and another PLD 1995 SC 66; Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad v. The General Public PLD 1988 SC 645; State v. Zia‑ur‑Rehman and others PLD 1973 SC 49; Kubic Dariusz v. Union of India and others AIR 1990 SC 605; Rex v. Halliday 1917 AC 260; Mushtaq Ahmad v. Government of Pakistan, Ministry of Interior and 2 others 1981 PCr.LJ 1263; Jauhar Hussain and others v. Commissioner of Karachi PLD 1962 (W.P.) Kar. 126; Syed Sibte Hasan v. The Crown PLD 1954 Lah. 142; Syeda Shamim Akhtar v. Government of Pakistan and 3 others 1996 PCr.LJ 326;~Haji Rajah Ali v. Superintendent, District Jail, Quetta and another 1986 PCr.LJ 2928; Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmed Khan and others PLD 1974 SC 151; Lahore Improvement Trust, Lahore through Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811; Zahoor Ahmad and others v. The Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1999 Lah. 139 and Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602 ref.

Hamid Khan, A.K. Dogar and Pervaiz Inayat Malik, for Petitioner.

Sher Zaman Khan, Dy. A.‑G. for Pakistan.

Shabbar Raza Rizvi, A.‑G. Punjab with Jalal‑ud‑Din Khalid, A.A.‑G. for Respondents.

Dates of hearing: 28th, 29th January, 3rd, 4h, 7th, 14th and 17th February, 2003.

P L D 2003 Lahore 358

Before Muhammad Sayeed Akhtar and Mian Hamid Farooq, JJ

Messrs EMIRATES AIRLINE----Appellant

Versus

DAOUD SHAMI and others---Respondents

Regular First Appeal No.745 of 2001, decided on 13th January, 2003.

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

----S. 73---Suit for damages for breach of contract---Failure to implead principal contracting party ---Effect---Pirma facie, in the present case, there was no contract between the plaintiff and the defendants, cause of action, if any, arose against the contracting party and the plaintiff and the party impleaded as defendant was a sub-contracter---Trial Court, in circumstances, completely misdirected itself to the law that the suit could be decided in the absence of the principal contracting party.

Government of Pakistan v. Premier Sugar Mills and others PLD 1991 Lah. 381 and National Bank of Pakistan and others v. Karachi Development Authority and others PLD 1999 Kar. 260 distinguished.

(b) Carriage by Air (International Convention) Act (IX of 1966)---

-----First Sched., Chap.II, R.3(1)(2)---Contract Act (IX of 1872), S.73---Suit for damages by passenger for breach of contract by the Airline---Passenger ticket---Provision of R.3(2) of the Schedule to the Carriage by Air (International Convention) Act, 1966 provides that passenger, ticket shall constitute prima facie evidence of the conclusion and conditions of the contract of carriage---Relevant leaf of the air ticket showed that the condition of the travel given on the ticket had not been produced in evidence nor placed on record by the plaintiff, which seemed to have been deliberately withheld---Defendants had also not relied on the appendix of the ticket nor adduced same in evidence---Effect---Passenger travelled by an aeroplane as per terms and conditions appended with the ticket---Carriage of passenger being governed by the conditions of the contract of carriage i.e. passenger ticket, in the absence of the same, suit was liable to be dismissed.

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

----S. 73---Compensation for loss or damage caused by breach of contract--­Breach of contract, a civil wrong and not a crime---Payment of damages--­Object---Loss---Concept---Assessment of loss---Considerations---Defendant when liable for loss---Principles---Claim of damages on basis of special circumstances/extraordinary nature of contract, anxiety, anguish, mental stress and vexation arising out of breach of contract---Requirements---Rules of thumb and res ipsa loquitur and doctrine of special notice--­Applicability---Award of punitive or exemplary damages in a purely contractual action---Essentials---Court, in the present case, could not order the defendant to pay the amount of compensation which would actually make the plaintiff's position better than the one if the contract had been performed---Trial Court, having decreed the suit on no evidence, the judgment of Trial Court was perverse and thus unsustainable in law--­Principles.

In the present case it was averred in the plaint that the plaintiff obtained admission in "The International College of Hospitality Management", Washington, U.S.A. He completed the course successfully and returned to Pakistani. The Graduation Ceremony for grant of diploma w4s to take place, the plaintiff was granted American Visa for the specific purpose. He also mobilized financial resources to enable him to attend the Graduation Ceremony. "The plaintiff booked a seat on the defendant Airlines for travelling from Lahore to Washington, U.S.A.". This booking was effected through defendant (agent of the Airline). The plaintiff was to travel from Lahore to Dubai by flight No.EK-675 on 15-7-1999 and from Dubai to London by flight No.EK-100 of the defendant Airline and further on by a connecting flight No.CO-4409 of Continental Airlines. The seat of the plaintiff was confirmed by the defendants. The plaintiff arrived at Lahore Airport on July 15, 1999 morning but he was not allowed to board Lahore Dubai flight No.EK-675. The refusal was a breach of the contract. The Graduation Ceremony was a memorable occasion for the plaintiff. The plaintiff suffered loss for breach of the contract as under:--

"Loss of investment made by the plaintiff in the management course, expenses incurred on obtaining U.S. Visa, damage caused by denial of opportunity to get suitable job at the Graduation Ceremony at Washington, U.S.A., and monetary compensation for emotional anguish .....

Total…………. 100,000 U.S.$."

The father of the plaintiff under instructions raised the demand on the defendant airline and also made a complaint to it on 19-7-1999 but the defendants refused to pay the compensation for the breach of the contract. It was specifically stated in the plaint that defendant N0.2 the Travelling Agent was only a Proforma Respondent and no relief was claimed against it.

The suit was resisted by the defendants alleging that the plaintiff was to travel by the defendant Airline from Lahore to London but from London to Newyork he was to be carried by Continental Airlines which was not impleaded as defendant. The Continental Airline Flight London­ Newyork was cancelled therefore in the absence of visa for London, the plaintiff could not be flown to London as the British Government imposed a tine of Pounds 2000, for carrying such passengers to London, in addition the Airline had to bring back the passenger to the port of embarkation. It was further stated that according to reservation history, flight EK-100 on 15th July, 1999 at 8-55 GMT, was cancelled by Virgin Atlantic Code-Share 13artner of Continental Airlines. There being no connecting flight, the petitioner could not be flown to London.

Loss includes any harm to the person or property of the claimant, and any other injury to his economic position. The main consideration in assessing damages, is whether the damages naturally arose in the usual course of things. A defendant is not normally liable for a loss which is not likely to occur in the ordinary course of things or which was not in contemplation of the parties at the time of the formation of contract. In the present case the loss is being claimed on the basis of the special circumstances but the same were not intimated to the other party. No special notice was given of the extraordinary nature of contract.

In the present case there was no evidence whatsoever to show that the special circumstances i.e. the Graduation Ceremony, its memorability and selection of the plaintiff for employment purposes was ever brought to the knowledge of defendants or special notice was given to them. In the absence of the same, no "actual contract" arose on the part of the defendants. The contract was to carry the passenger and not to the Graduation Ceremony/memorable day in Washington. The loss claimed by the plaintiff did not arise in the natural course of things as being within the contemplation of the parties.

There was no evidence led by the plaintiff to prove that--

(i) the non-participation of the plaintiff in the Graduation Ceremony rendered his degree/diploma ineffective or valueless academically and the expenditure incurred in obtaining the diploma was a total loss;

(ii) failure of the plaintiff to take part in the Graduation Ceremony had made it impossible for him to find a job or had diminished his future job perspective;

(iii) the plaintiff suffered any injury to the feelings.

In the absence of the same the loss claimed was too remote. The alleged loss could not be anticipated by any stretch of imagination.

Non-participation of the plaintiff had not adversely affected his position. Nothing had been brought on the record to show that the plaintiff was offered any job or that it was impossible for him to get the job subsequently. Without the same it could not be said that the loss arose naturally in the usual course of things from alleged breach.

The damages could not also be recovered for the anxiety, the anxiety is inevitable concomitant of expectations, the plaintiff must be deemed to have taken the risk of it. The damages for anxiety or mental stress could therefore be recovered for breach of contract resulting in the failure of expectations. The damages in contract for injuries to feelings, mental distress anguish annoyance, loss of reputation or social discredit which the plaintiff may sustain and also the fact that it made it very difficult to obtain fresh employment, could not be recovered being too remote.

Damages for anguish and vexation arising out of breach of contract were not recoverable unless the object of the contract was to provide peace of mind or freedom from distress.

Private or exemplary damages could not be awarded in a purely contractual action. Since the object of such an action was not to punish the defendant but to compensate the claimant. The breach of contract was a civil wrong and not a crime. The object of damages for breach of contract was to put the victim so far as the money could do it in the same position as if the contract had been performed and not to enrich the plaintiff. Court could not order the defendant to pay the amount which will actually make the plaintiff's position better than the one if the contract had been performed. Trial Court had decreed the suit on no evidence. The judgment was perverse and was unsustainable in law.

The Rule of thumb in granting the damages was not applicable to the breach of contract cases, Similarly the "res ipsa loquitur" (the thing speaks for itself) is a rule of evidence and not a principle of law and was applicable to only actions of Tort and not claims under, contract.

The plaintiff himself did not appear to prove the alleged injury. The mere bald statement of the attorney of the plaintiff (who also happened to be the father of the plaintiff) was not sufficient proof of the injury. 'He had been writing letters to the defendants on official letter pad of Pakistan National Assembly. At the time when the letters were written by him to the defendants, he had no power of attorney in his favour. The letters written by the attorney of the plaintiff, though addressed without authority did not strengthen the case of plaintiff. The plaintiff had not introduced sufficient evidence to sustain his action of contract. The compensatory damages awarded by the trial Court were unsustainable in law. The contention that the statement of the attorney of the plaintiff remained un-rebutted, but it proved nothing. Even otherwise the plaintiff must succeed on his own strength and not upon weakness of the case of the defendant.

Government of Pakistan v. Premier Sugar Mills and others PLD 1991 Lah. 381; National Bank of Pakistan and others v. Karachi Development Authority and others PLD 1999 Kar. 260; Qazi Dost Muhammad v. Malik Dost Muhammad and 4 others 1997 CLC 546; Muhammad Sharif v. Nawab Din and another PLD 1957 Lah. 283; Sakhi Muhammad v. Muhammad Nasir Bashir 1999 CLC 454; Ismail v. Abdullah and another PLD 1963 Kar. 161; Khanzada Inamullah Khan v. Mst. Zakia Qutab and 3 others PLD 1998 Pesh. 52; Water and Power Development Authority and others v. Mian Ghulam Bari 1995 MLD 480; Water and Power Development Authority v. Mian Ghulam Bari 1989 CLC 1605; Nadir v. Allegheny Airlines Inc. 426 US 290(1976): British Airways Board v. Taylor (1976) 1 All ER 65; Horns and another v, Midland Railway Company (1973) LR 8 CP 131; Simpson v. L&N W. Railway Company (1876) 1 QBD 274; B.C. Saw-Mill Co. Ltd, v. Nettle ship (1968) LR 3 CP 499; Monindra Lall Sen v, Union of India AIR 1960 Pat. 411: Kpohraror v. Woolwich Building Society (1996) 4 All ER 119; Horn 11`s ease (1967) 3 All ER 686; Addis v. Gramophone Company Ltd, (1909) AC 488; Foaminal Laboratories Ltd. v. British Artid Plastics Ltd. (1941) 2 All ER 393; Bailey v. Bullock and others (1950) 2 All ER 1167 and Hayas and another v. James and Charles Dodd (1990) 2 All ER 815 referred and analysed.

Mahmood A. Sheikh for Appellant.

Syed Hamid Ali Shah for Respondents.

Date of No hearing : 13th January, 2003.

P L D 2003 Lahore 371

Before Muhammad Sayeed Akhter, J

PAKISTAN LAWYERS FORUM---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 15300 of 2002, decided on 4th November, 2002.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Petitioner had raised points in the petition which related to the implementation of the judgment of Supreme Court---High Court declined to dwell upon such points lest it trespassed on the jurisdiction of the Supreme Court.

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

----Art. 199---Constitutional petition before High Court---Petitioner had sought the implementation of the judgment of Supreme Court passed in Zafar Ali Shah's case (PLD 2000 SC 869) wherein, in addition to other directions, Supreme Court had specified the period for holding general election to the National Assembly and the Provincial Assemblies and the Senate of Pakistan---Validity---Held, there had been no infringement of the judgment of the Supreme Court.

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

----Art. 184---Constitutional petition under Art.184(3) of the Constitution before Supreme Court---Direction with regard to time for certain action to be taken by the respondent is generally considered directory in nature and not mandatory---If default in period is not visited with penalty or the consequences to flow and in case the act or thing is not done within that period, the delay will not defeat the action or performance of the duty.

(d) Constitution of Pakistan (1973)--

----Art. 199---Legal Framework Order [Chief Executive's Order No.24 of 2002). Preamble---Constitutional petition---Aggrieved, person---Locus standi to file Constitutional petition---petitioner, assailing the Legal Framework Order, 2002, a registered body of the lawyers who were honourable citizens of Pakistan groomed in law and Constitution, had every right to assail the legal Framework Order, 2002---In order that a person be considered an "aggrieved person" within the meaning of Art.199 of the Constitution, he may not have a right in strict juristic sense but he must show that he had a personal interest in the performance of a legal duty---Legal Framework Order, 2002 amending the Constitution would affect the entire nation and the petitioner in the present case a body of lawyers who were citizens of Pakistan and likely to be affected by the amendments, in Constitution, was the "aggrieved person".

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

----Arts. 199 & 248---Legal Framework Order (Chief Executive's Order No.24 of 2002]. Preamble---Constitutional petition assailing the Legal Framework Order, 2002 wherein President of Pakistan who was also the Chief Executive of Pakistan was arrayed as one of the respondents--­Contention was that President of Pakistan had an immunity under Art. 248 of the Constitution and he should be struck off from the array of respondents--­Validity---Legal Framework Order, 2002 having been issued by the Chief Executive, who was also President of Pakistan, contention for immunity had no substance.

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

----Art. 199---Legal Framework Order (Chief Executive's Order No.24 of 2002), Preamble---Judicial review under Art.199 of the Constitution--­Scope ---Constitutional petition assailing the amendments made in the Constitution of Pakistan (1971) by the Legal Framework Order, 2002--­Maintainability---Contention that amendment of the Constitution was a "political question" and High Court had no power of judicial review. was repelled---Principles.

The judiciary is the custodian of the Constitution .... The fact that any question is a political question will not deter the Court from determining it provided it involves the interpretation of Constitution or validity of such question is to be determined on the touchstone of the Constitution. The Court should not adopt 'political question doctrine' for refusing to determine difficult and knotty questions having political overtones. This would amount to abdication of judicial power which neither the Constitution permits nor the law allows.

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

----Art. 199---Legal Framework Order (Chief Executive's Order No.24 of 2002]. Preamble---Constitutional petition assailing the Legal Framework Order, 2002 issued by the Chief Executive of Pakistan which amended the Constitution of Pakistan (1973)---Validity---Held. Chief Executive of Pakistan was vested with the power to amend the Constitution of Pakistan (1973) by the Supreme Court in Zafar Ali Shah's case (PLD 2000 SC 869) and it was for the same Court to see whether the Chief Executive of Pakistan had transgressed the authority conferred upon hire by the Supreme Court by promulgating the Legal Framework Order, 2002.

(h) Constitution of Pakistan (1973)---

----Arts. 199 & 58(2)(b)---Legal Framework Order (Chief Executive's Order No.24 of 2002], Preamble---Constitutional petition assailing the insertion of Art.58(2)(b) in the Constitution of Pakistan (1973) by Legal Framework Order, 2002---Validity---Supreme Court in Zafar Ali Shah's case (PLD 2000 SC 869) had affirmed the view that Art.58(2)(b) of the Constitution had provided checks and balances governing the powers of the President and the Prime Minister of Pakistan.

(i) Constitution of Pakistan (1973)---

----Art. 199---Legal Framework Order (Chief Executive's Order No.24 of 2002], Preamble---Constitutional petition assailing the constitutionality of creation of National Security Council on the ground that the same had been made a superior body---Validity---Held, National Security Council was only a consultative forum and its decisions/resolutions had no binding effect on the Government or the President of Pakistan---Provision with regard to National Security Council thus could not be declared as unconstitutional merely on the ground that some members of the National Security Council were the servants of the State.

Zafar Ali Shah's case PLD 2000 SC 869; Waseem Sajjad v. Federation of Pakistan PLD 2001 SC 233; Miss Asima Jilani v. The Government of the Punjab and another PLD 1972 SC 139; Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC 723; Watan Party v. The Chief Executive/President of Pakistan and another Constitutional Petition No.36 of 2002; Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others PLD 20021 SC 853; Mahmood Khan Achakzai v. Federation of Pakistan and others PLD 1997 SC 426; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Al-Jehad Trust through Raseesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; A.M. Khan Leghari, C.S.P., Member. Board of Revenue, West Pakistan, Lahore v. Government of Pakistan, through. Secretary to Government of Pakistan, Establishment Division. Rawalpindi PLD 1965 Lah. 214; Abrar Hussain v. Government of Pakistan and another PLD 1976 SC 315; Al-Jehad Trust through Races-ul-­Majahiddin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others PLL 1997 SC 84 and Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

A.K. Dogar for Petitioner.

Sher Zaman Khan, Deputy Attorney-General for Respondents.

Dates of hearing: 2nd, 3rd, 7th, 8th, 9th, 14th, 15th, 16th, 17th, 21st 22nd, 28th, 29th, 30th, 31st October and 4th, 6th and 7th November, 2002.

P L D 2003 Lahore 387

Before Tassaduq Hussain Jillani, Raja Muhammad Sabir and Mian Muhammad Najam uz Zaman, JJ

RUB NAWAZ---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Law and Parliamentary Affairs, Islamabad and 3 others---Respondents

Writ Petition No. 12266 of 2001, decided on 11th March, 2003.

Penal Code (XLV of 1860)---

----S.302(b)---Constitution of Pakistan (1973), Arts. 45 & 199---Prisons Act (IX of 1894), S.55---Prison Rules, Rr.35, 38, 206 & 218---Government of Punjab Notification No. SO(MP)/14-1/97 28-8-1997---Constitutional petition---Remission of sentence by President of Pakistan under Art.45, Constitution of Pakistan (1973)---Accused was convicted under S. 302(b), P.P.C. and sentenced to imprisonment for life and a compensation of Rs.30,000 to be paid to the legal heirs of the deceased ---Sentence of accused, however, was suspended by High Court on statutory ground but his appeal was dismissed where after he was committed to judicial custody Government of the Punjab, during the currency of suspension of sentence of the accused issued Notification No.SO(MP)/14-1/97 conveying the order of the President of Pakistan under Art. 45 of the Constitution granting remission of sentence---Petitioner convict, in circumstances, could not be granted remission in terms of the notification during the period when he was out of prison and his sentence Clad been suspended by the High Court---Provisions of S.55, Prisons Act, 1894 read with Prison Rules, Rr.35, 38, 206 & 218 had no nexus with the issue in question.

Malik Khyzar Hayat for Petitioner.

Ms. Yasmin Sehgal. Asstt: A.-G., Punjab.

P L D 2003 Lahore 389

Before Ch. Ijaz Ahmad, J

Mian ABDUR RASHID ---Petitioner

Versus

PROVINCE OF PUNJAB, through District Collector, Okara and another---Respondents

Civil Revision No.620 of 2002, heard on 30th January, 2003.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 3---Notification No. Judl-i-17(7)/59, dated 20-6-1962---Exemptions--­Buildings or lands of commercial nature or being used as shops belonging to a Local Body administering an urban area---Provisions of the Ordinance would not apple to such buildings or land by virtue of Notification No.Judl-i-17(7)/59, dated 20-6-1962.

Muhammad Asghar v. Ikramuddin and another NLR 1981 UC 66 rel.

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

----S. 116---Holding over, effect of---Tenant occupying premises without consent of landlord is a tenant by sufferance---Status of such tenant is no better than a trespasser and can be ejected at any time.

Rehman Cotton Factory v. Nichman Company Limited PLD 1976 SC 781; Noor v. M. Singh 1958 IC 18 (PC) and Punjab National Bank v. S.D. Chaudhry AIR 1943 Oudh 392 rel.

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

----O. XLI, R.33---Findings of Trial Court on questions of fact---First Appellate Court can reverse such findings and can come to its own conclusion on the basis of evidence on record.

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

----S. 115---Revision---Findings on questions of fact or law, recorded by competent Court, howsoever erroneous, High Court is not authorised to interfere, unless such findings suffer from jurisdictional defect, illegality or material irregularity.

N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26 fol.

Muhammad Kazim Khan for Petitioner.

Ch. Riasat Ali for Respondents.

Date of hearing: 30th January, 2003.

P L D 2003 Lahore 394

Before Khawaja Muhammad Sharif, J

Haji MUHAMMAD ASHRAF---Petitioner

Versus

BASHIR AHMED ---Respondent

Criminal Revision No.792 of 2002, decided on 4th October, 2002.

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

--Art. 40---How much of information received from accused may be proved---Only so much of such information received from a person accused of any offence in the custody of a Police Officer can be proved which relates distinctly to the fact thereby discovered.

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

----Ss. 302/324/148/149---Qanun-e-Shahadat (10 of 1984), Arts.40 & 131--­Admissibility of evidence decided by Sessions Court---Validity---Statement of the accused with respect to the production of revolver by him distinctly related to the fact regarding the production of a revolver by him--Objection raised from the side of the complainant was that the statement of the prosecution witness to the effect that "J accused had stated that pistol produced by him belonged to K" was a confession before the police and as such the said statement was not admissible---Even a cursory glance through the aforesaid statement indicated that it was not a confession before the police and could in fact be treated information as visualized under Art. 40 of the Qanun-e-Shahadat, 1984---Impugned order passed by Sessions Court was a legal order and could not be treated as perverse or fanciful in any way--­Revision petition was misconceived and was dismissed accordingly.

Saleem Pervaiz v. The State 1978 PCr.LJ 458; Sukhan v. Emperor AIR 1929 Lah. 344 and Jalla v. Emperor AIR 1931 Lah. 278 ref.

Ghulam Bari Saleemi and Zain ul Abidin for Petitioner.

Ch. Abdul Rashid for the Complainant

S.D. Qureshi for the State.

Date of hearing: 1st October, 2002.

P L D 2003 Lahore 398

Before Muhammad Khalid Alvi, J

SIKANDAR KHAN and 3 others---Appellants

Versus

MUHAMMAD ASHRAF and another---Respondents

Regular Second Appeal No.363 of 1972, heard on 16th October, 2002.

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

----O. XLI, R.1---High Court (Lahore) Rules and Orders, Vol. V, Chap. 1-A, R.9---Defect in appeal---Office objection, removal of---No time fixed by Office for re-filing---Appeal re-filed without unnecessary delay could not be said to have gone out of limitation---Appeal once validly instituted within prescribed time of limitation, mere technical office objection could not take away vested right of litigant.

PLD 1972 Lah. 743; PLD 1996 Lah. 702 and 1991 CLC 269 ref.

2000 SCMR 847; 2000 SCMR 847 and 1990 SCMR 859 rel.

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

----S. 149---Deficiency of court-fee, making up---Effect---If deficiency in court-fee was made good under orders of Court, even though beyond period of limitation, same would not make suit time-barred.

PLD 1984 SC 289; 1994 SCMR 367; 1986 SCMR 1005 and 1986 SCMR 1345 ref.

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

----S. 149---Deficiency of court-fee---Grant of time---Duty of Court: First to determine amount of court-fee leviable and then grant time to plaintiff to make good the same.

(d) Precedent--

---Latest interpretation of law would apply to cases under consideration.

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

----S. 15---West Pakistan Land Revenue Act (XVII of 1967), S. 56---Pre­emption suit---Agricultural or non-agricultural land---Determination---Fact that particular land was a "land revenue paying" or not, was one of the considerations to determine status of land, whether same was agricultural or non-agricultural---Such fact was not the only consideration on which status of land could be determined finally---Exempting agricultural land from land revenue would not mean that such land had lost its agricultural status---Big chunk of land acquired by pre-emptor in different rectangles in a village agricultural body could not be said to be non-agricultural land in absence of any evidence about use of such land for purpose other than agricultural.

Hameed Azhar Malik for the Appellants.

Kanwar Intizar Muhammad Khan for Respondents.

Date of hearing: 16th October, 2002.

P L D 2003 Lahore 403

Before Khawaja Muhammad Sharif, J

Rana ZULFIQAR ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5031-B of 2002, decided on 31st July, 2002.

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

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(ii)/337-L(2)/506, para. second/186/427/148/149/379/163---Pre-arrest bail---Compromise between the parties manifestly was the outcome of the pressure and influence exerted by the accused Councillor who was being supported by the feudal lords of the area and he had even made it impossible for the senior supervisory police officer of the District despite direction of High Court to produce him in Court and he at his own pleasure had opted to move High Court for pre­-arrest bail---Even otherwise, offences under Ss.379, 506, para. second & 163, P.P.C. were not compoundable and the local police while registering the case on the complaint of the Doctor had not with mala fide intention mentioned the said sections of the P.P.C.---None of the basic conditions for grant of pre-arrest bail was available in favour of accused, rather the whole district administration was playing in his hands---Most important criterion in this regard was the satisfaction of the Court that the case was or not fit for bail---Accused had even slapped on the face of the complainant Doctor on his refusal to give the required Medical Certificate---Person like the accused must be dealt with sternly in order to make the country people feel that they were living in such country where the law had edge over everything--­Pre-arrest bail was refused to accused in circumstances.

PLD 1997 SC 347; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 and Sarwar Sultan v. The State and another PLD 1994 SC 133 ref.

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

----S. 498---Pre-arrest bail---Conditions precedent for grant of bail before arrest---Basic conditions are, that the accused apprehends arrest due to some ulterior motives or mala fides on the part of the Authorities or other influential persons or there are some peculiar features of the case, e.g., the accused enjoys good name and his arrest may humiliate him in public eyes, which would justify the exercise of this discretionary power.

Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 and Sarwar Sultan v. The State and another PLD 1994 SC 133 ref.

Petitioner is person.

Sardar Muhammad Latif Khosa and Muhammad Jehangir Wahla, A.-A.G. assisted by Sher Muhammad Gujjar for the State.

P L D 2003 Lahore 409

Before Muhammad Sayeed Akhtar, J

ABID ALI and others---Appellants

Versus

TAJBAR KHAN and others---Respondents

First Appeal from Order No. 63 of 1993, heard on 26th March, 2003.

Specific Relief Act (I of 1877)---

----S. 12---Limitation Act (IX of 1908), S.17(2) & Art. 113---Suit for specific Performance of contract---Limitation---Cams of action, in a suit for specific Performance of contract, arises from the date fixed for the performance--­Stipulated date, in the present case, was 6-7-1986 for completion of the sale but the vendor died on 2-5-1986 before the stipulated date for completion of the contract---provisions of S.17(2), Limitation Act, 1908 would be applicable in circumstances---principles---Question of limitation is a mixed question of law and fact and mot be decided without recording the evidence--Order of District Judge remanding the case to the Trial Court to decide the sane air framing of the of issues and recording of evidence: was not interfered by the High Court.

Under Article 113 to the First Schedule of the Limitation Act, 1908, in a suit for specific perform of a contract the cause of action arises from the date fixed for the performance. The stipulated date in the instant case was 6-7-1986 for completion of the sale but the vendor died on 2-5-1986 before the stipulated date for completion of the contract. Provisions of section 17(2) of the Limitation Act, 1908 would thus be applicable which contemplate that a complete cause of action cannot accrue unless there be a person in existence capable of being sued. Until the person exists there cannot be a perfect cause of action. In the present case the vendor died issueless. The mutation of inheritance was sanctioned on 11-2-1990. The question that the plaintiff knew of his death on 25-10-1987 when the succession certificate was granted by the Civil Court, can only be decided after framing the issue and recording the evidence. No admission existed by, the plaintiff in the plaint. The mutation of inheritance was attested on 11-2-1990 but the plaintiff stated in the plaint that he came to know of the same about three months before filing of the suit was yet to be seen as to when the cause of action was acquired by the plaintiff and whether there was any delay on his part in tiling the suit.

In the peculiar circumstances of the case the question of limitation was a mixed question of law and fact and could not be decided without recording the evidence. No infirmity in the judgment of the Additional District Judge having been found, appeal was accepted.

Abdul Rashid Velmi v. Habib-ur-Rehman and 4 others 1.995 MLD 397; Mst. Ambrin Begum v. Dr. Dev-Kishan alias Kiahan 1991 MLD 31.8 and Muhammad Akram v. Aurangzeb and another 1989 CLC 1405 distinguished.

Lakshminaryana Reddiar v. Singaravelu Naicker and another AIR 1963 Mad. 24 and Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314 ref.

Muhammad Amin Javed for Appellants.

Muhammad Fawad Jamil Qureshi for Respondent No. 1.

Date of hearing: 26th March, 2003.

P L D 2003 Lahore 413

Before Maulvi Anwarul Haq, J

MUHAMMAD KHAN‑‑‑Petitioner

Versus

MUHAMMAD YOUSAF‑‑‑Respondent

Civil Revision No.626‑D of 1997, decided on 18th February, 2003.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑

‑‑‑‑S. 6(1)(b)‑‑‑Shafi Khalit‑‑‑Right of passage‑‑‑Not its user, but ownership in passage would equip a person with superior right of pre‑emption being Shafi Khalit.

Government of N.‑W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360; (ﻪﻴﺍﺪﻬﻠﺍﻥﻳﻋ), Vol. 4, p.10 and Aurangzeb and others v. Haji Abdul Rashid and others PU 1974 Pesh. 20 fol.

(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑

----S. 6(1)(b)‑‑‑Shafi Khalit‑‑‑Common‑passage in between pre‑emptor's land and disputed land‑‑‑Pre‑emptor could not claim superior right of pre­emption on proof of mere fact that both such lands were situated on a thoroughfare.

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

‑‑‑‑O. XLI, R.22‑‑‑Appeal against decree by defendant‑‑Plaintiff not seeking setting aside or modification of decree‑‑‑Plaintiff was very much within his right to support decree even on ground decided against him by Trial Court

(d) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 15‑‑‑Suit for pre‑emption‑‑‑Talbs‑‑‑Courts below after considering entire evidence concurrently found that Talbs had been duly performed‑‑­Such findings not suffering from misreading or non‑reading of evidence‑‑­High Court dismissed revision petition in circumstances.

Rana Muhammad Sarwar for Petitioner.

Mian Nisar Ahmad for Respondent.

Date of hearing: 31st January, 2003.

P L D 2003 Lahore 417

Before Khawaja Muhammad Sharif, J

ZIL-UR-REHMAN --- Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.337 of 2002, heard on 18th November, 2002.

Penal Code (XLV of 1860)---

----S. 308---Appreciation of evidence---Prosecution witness who had supported the prosecution case had been examined by the Trial Court as a Court witness, although he was neither mentioned in the F.I.R. as an eye­witness, nor he was examined by the complainant in his preliminary evidence and he even did not join the police investigation---Eye-witnesses mentioned in the F.I.R. had not supported the prosecution case---Complainant was not an eye-witness who had filed the complaint three months after the occurrence without any proper explanation---Evidence of extra-judicial confession had been furnished against the accused by the servant of the complainant on which no conviction could be based---Recovery of crime empty and weapon of offence in the case was not supported by the prosecution witnesses---Accused was acquitted on benefit of doubt in circumstances.

Malik Muhammad Suleman Awan with M.A. Zafai for the Appellant.

Abdul Qayyum Anjum for the State

Date of hearing: 18th November, 2002.

P L D 2003 Lahore 421

Before Mian Saqib Nisar, J

Sheikh NIAMAT ALI ‑‑‑Appellant

Versus

Sheikh MUHAMMAD IMRAN and 3 others‑‑‑Respondents

Execution First Appeal No.766 of 2002, heard on 4th February, 2003.

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

‑‑‑‑O. XXI, Rr. 10 & 90‑‑‑Sale in execution of decree, setting aside of‑‑­Dismissal of objection petition as being not competent for having been tiled under O. XXI, R. 10, C.P.C.‑‑‑Validity‑‑‑Objection petition had been filed in reference to execution application of decree‑holder‑‑‑Contents of objection petition and relief claimed therein clearly showed that same was within purview of O. XXI, R.90, C.P.C.‑‑‑Executing Court was duty bound to have considered contents of objection petition and by applying relevant provisions should have decided matter on merits, rather knocking out judgment‑debtor on technical ground‑‑‑Dismissal of objection petition on ground of maintainability could not be sustained‑‑‑High Court set aside impugned order with directions to lower Court to decide objection petition considering same to have been under O.XXI, R.90, C.P.C.

(b) Administration of justice‑---

‑‑‑‑ Duty of Court to apply correct law and grant relief to aggrieved party, even if correct provision of law not invoked by party.

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

‑‑‑‑O. XXI, R.90, second proviso‑‑‑Sale in execution of decree, setting aside of‑‑‑Dismissal of objection petition for non‑deposit of 20% amount under O.XXI, R.90, C.P.C.‑‑‑Validity‑‑‑Executing Court had never issued direction to judgment‑debtor to make deposit or furnish security‑‑‑Executing Court by taking resort to second proviso to O. XXI, R.90, C.P.C., was not justified to dismiss objection petition‑‑‑High Court set aside impugned order with observations that 20% of auction price deposited under order of High Court would be considered as sufficient direction by Court in terms of the Rule and compliance made by judgment‑debtor.

M. Shafique Shah and another v Mst. Irshad Begum and 8 others 1981 CLC 369 and Mst. Rukhsana and others v. Muhammad Ilyas and others 1993 CLC 1949 rel.

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

‑‑‑‑O. XXI, R.90, second proviso‑‑‑Sale in execution of decree, setting aside of‑‑‑Deposit of 20% of auction price‑‑‑Proper stage‑‑‑Second proviso to O.XXI, R.90, C.P.C., is an enabling and directory provision empowering Court to direct deposit of amount not exceeding 20% of sum realized at sale or furnish security‑‑Such discretion must be exercised by Court according to judicial standard‑‑‑Words "as the Court may direct" used in second proviso to O. XXI, R.90, C.P.C., controls and regulates its earlier part‑‑‑Objection petition can be dismissed, if direction of Court is not complied with.

M. Shafique Shah and another v Mst. Irshad Begum and 8 others 1981 CLC 369 and Mst. Rukhsana and others v. Muhammad Ilyas and others 1993 CLC 1949 rel.

Ahmed Waheed Khan for Appellant.

M. Zafar Iqbal Ch. for Respondent No. 1.

Umar Daraz Khan for Respondents Nos.2 to 4.

Date of hearing: 4th February, 2003.

P L D 2003 Lahore 425

Before Khawaja Muhammad Shairf and Asif Saeed Khan Khosa, JJ

MUHAMMAD YASIN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.274 of 1999, heard on 6th March, 2003.

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

----Ss. 302/34 & 394/34---Appreciation of evidence---Occurrence had taken place in the darkness of the night---Culprits who were not previously known to the complainant and other eye-witnesses, had remained unidentified at the spot---Names of accused did not figure in the F.I.R. and till their arrest in some other case they were not implicated in the present case in any capacity---No motive for the occurrence was set up by the prosecution---In the absence of any matching of the crime empties secured from the spot with the weapons allegedly recovered from the accused, no corroboration was available in the case even on this score---Identification parade was held after 35 days of the occurrence and normally eye-witnesses could not be expected to have correctly identified the accused after such a long period of their fleeting glance at them during the incident---One accused had not been identified by the witnesses during identification parade, while the other accused was not picked up with reference to the role played by him during the occurrence and his identification had no, legal consequence--­Medical evidence had belied the prosecution version---Presence of the complainant and other eye-witnesses at the scene of crime at the relevant time was doubtful---Accused were acquitted in circumstances.

Aziz Ahmad Malik for Appellants.

Imtiaz Ahmad Chaudhary for the State.

Date of hearing: 6th March, 2003.

P L D 2003 Lahore 432

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUHAMMAD SARWAR and 4 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1480 and Murder Reference No.43-T of 2001, decided on 27th March, 2003.

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

----Ss. 302(b)/149 & 324/149---Anti-Terrorism Act (XXVII of 1997), S.7-- Appreciation of evidence---Motive---Proof---City, wherein the occurrence had taken place was engulfed in high tension emanating from sectarian clashes between two communities and the situation had deteriorated so much that a curfew had been clamped down in the city so as to keep the warring factions apart---Gruesome occurrence, in the present case, had taken place during a lull between the curfew hours and at a time when the members of one community (victims) were dispersing after attending a religious gathering---Nothing, was though available on record, showing any personal or individual enmity between the accused persons and their victims but at the same time it was equally true that all the prosecution witnesses, including the injured eye-witnesses, belonged to one sect and all the accused persons were from the other---Accused persons in statement recorded under S.342, Cr.P.C. had themselves asserted a background of "enmity" between the accused persons and the prosecution witnesses on the basis of sectarian differences; even the suggestions put to different eye-witnesses by the defence unmincingly referred to such sectarian enmity ---Lalkara attributed by various eye-witnesses to the accused persons before launching the assault also had the overtones of sectarianism and the same unmistakably pointed towards that motivation on the part of the accused persons for perpetrating the alleged offences---One, in such context, could not lose sight of the fact that in a case of terrorism it was not vengeance against an individual but retribution and requital against a community or sect which was the real motivation and said factor could be found writ large on the entire record of the present case---Motive for commission of the offence, in circumstances, was nothing but sectarianism and the same stood conclusively established in the case.

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

----Ss. 302(b)/149 & 324/149---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation of evidence---Occurrence had taken place in the heart of the city and the venue was a busy market place with its hustle and bustle shortly before beginning of the curfew hours---Incident took place during broad daylight and the F.I.R. in that regard had been lodged with sufficient promptitude wherein the names of the accused persons had clearly been mentioned with all the necessary details as the perpetrators of the alleged offence---Motive was conclusively established---Four persons had died during the said incident and nine others had sustained injuries out of which five injured victims had specifically deposed about the participation of the accused persons in that gory, grisly and blood-soaked incident---Witnesses had the stamp of injuries on their persons and their presence at the spot could not be disputed with any degree of seriousness---Injured witnesses had made consistent statements before the Trial Court and they had absolutely no motive to falsely implicate the accused persons in a case of such a grave nature---Straightforward and forthright statements, made by the said injured eye-witnesses had not only impressed the Trial Court but the same had also inspired confidence of the Court ---Wajtakkar evidence had also provided corroboration to the ocular account and the statements of those witnesses regarding presence of the accused persons at and around the place of occurrence immediately after the incident had gone a long way in establishing participation of the accused persons in the occurrence---Medical evidence had also provided sufficient. support to the ocular account in respect of all the relevant details and with regard to all the material particulars--­Prosecution, in circumstances, had succeeded in proving its case against the accused persons beyond reasonable doubt---Convictions and sentences of the accused persons recorded by the Trial Court was upheld and maintained subject to modifications that the convictions and sentences of accused persons recorded by the Trial Court under Ss.324/149, P.P.C. and S.7, Anti­ Terrorism Act, 1997 read with S.324, P.P.C, in respect of one injured victim were set aside as the said injured victim had not entered the witness­ box, the sentence of death passed against one accused person for an offence under S.7, Anti-Terrorism Act, 1997 read with S.302(b), P.P.C. was reduced to imprisonment for life as the sentence of death against the said accused on that count had apparently been erroneously and mistakenly recorded by the trial Court, keeping in view the tenor of the sentences passed by it; against the other accused persons on that count and with a direction that in case of default of payment of compensation ordered by the Trial Court to be paid by the accused persons on various counts they shall undergo simple imprisonment for six months each on each of such counts.

Mian Muzaffar Ahmad for Appellants Nos. 1 to 3.

Muhammad Rashid Bhatti for Appellant No.4.

S.D. Qureshi for the State.

Date of hearing: 27th March, 2003.

P L D 2003 Lahore 439

Before Ali Nawaz Chowhan, J

PAKISTAN CHEST FOUNDATION (RECD.), LAHORE and another---Petitioner

Versus

FEDERATION OF PAKISTAN---Respondent

Constitutional Petition No. 14433 of 1994 alongwith Writ Petition No. 15957 of 2000, decided on 25th March, 2003.

Prohibition of Smoking and Protection of Non-Smokers Health Ordinance (LXXIV of 2002)-----

----S. 1(3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition as pro bono public litigation---Ordinance was to come into force on such date as the Federal Government was to specify in the Official Gazette--­Ordinance had been published on 15-10-2002 in the Official Gazette but no date of its enforcement had been specified till 5 months had elapsed---Such inaction, inaptitude and delay were ingredients of "maladministration" and were opposed to good governance---When a law required a Government to specify a date when an already promulgated Ordinance was to be enforced, it was expected that the Government shall specify the date within a reasonable time in the public interest and in this connection the matter could not be left to uncertainty by the subordinate Authorities, who were duly bound to give effect to the law with convenient despatch---High Court, in circumstances, issued directions to the Federal Government for specifying a date for purposes of enforcement of the said Ordinance within a period of three months from the date of the present judgment under report to the High Court through its Deputy Registrar (Judicial) the 1st July, 2003.

Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404 and Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105 ref.

Muhammad Ismail Qureshi assisted by Zafar Ali Raja and Akhtar Awan for Petitioner.

Aftab Ahmad Khan, M.R. Sheikh, Shahzad Jahangir, Azhar Maqbool Shah, Asim Nasim for Respondents Nos. 1 to 6.

Hasnat Ahmad Khan for' Respondent No.7.

Date of hearing: 25th March, 2003.

P L D 2003 Lahore 441

Before Mian Saqib Nisar, J

MUHAMMAD DIN and 8 others---Petitioners

Versus

PROVINCE OF THE PUNJAB through COLLECTOR and others--Respondents

Civil Revision No. 1460 of 1994, decided on 28th March, 2003.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)----

----S. 2---Pakistan Administration of Evacuee Property Act (XII of 1957), Ss. 22 & 41---Specific Relief Act (I of 1877), Ss.42---Where the property had been treated and transferred as an evacuee property, even if erroneously, and the non-evacuee owners did not seek their remedy under the law in force at the relevant time, their title to such property stood extinguished and they could not assert ,their right of ownership before the Civil Court, after the repeal of the evacuee/Settlement laws, on account of lack of jurisdiction--­When the transfer of such property could not be attacked, the Civil Court on the same principle had no jurisdiction, in a suit for declaration, to declare the transfer of the property as void because what could not be done directly could not be achieved indirectly---Transferees of such property, on the basis of PTD, issued to them, which could not have been declared void by the Civil Court, in any situation, were entitled to the declaration of their title to the property and annulment of the sale-deeds of said property in favour of other persons and the effect given in the Revenue Record, having reflection upon their title to the property.

Sher Bahadar Khan v. Qazi Islamuddin and another PLD 1984 SC 213; Ghulam Rasool and 5 others v. Jannat Bibi and 11 others 1990 SCMR 744; Azizuddin v. Muhammad Ismail and others 1985 SCMR 666; Muhammad Nawaz and others v. Abdullah and others 1988 CLC 1285 and Ahmad Khan and 5 others v. Member, Board of Revenue and others 1986 CLC.1677 rel.

Sher Bahadar Khan v. Qazi Islamuddin and another PLD 1984 SC 213; Ghulam Rasul and 5 others v. Jannat Bibi and 11 others 1990 SCMR 744; Muhammad Nawaz and others v. Abdullah and others 1988 CLC 1285; Ahmad Khan and 5 others v. Member, Board of Revenue and others 1986 CLC 1677 and Azizuddin v. Muhammad Ismail and others 1985 SCMR 666 ref.

Khawaja Saeed-uz-Zafar with Nasrullah Khan Babar for Petitioners.

Ali Akbar Qureshi with Fakhar-ul-Zaman Akhtar Tarar and Shahbaz Khursheed for Respondents No.2 and 3.

Date of hearing: 7th February, 2003.

P L D 2003 Lahore 450

Before Tassaduq Hussain Jilani Mujahid, JJ

Dr. AHMED JAVED KHAWAJA and another---Petitioners

Versus

THE STATE and 2 others---Respondents

Writ Petition No.2262 of 2003, heard on 5th March, 2003.

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

----S. 15---Place of sitting of Court---Purpose and philosophy of law--­Accused is presumed to be innocent unless proved otherwise and in accord with this presumption and the canons of justice the Criminal Procedure Code and the Qanun-e-Shahadat, inter alia, include safeguards for a fair trial of the accused, and the provision f- r open trial is one of these safeguards---Trial in the veil of secrecy may offend said canons without which the trial would lose its credibility---.However, there could be a case or a class of cases, trial of which at the ordinary place of sitting may be hazardous to public security--­Section 15 of the Anti-Terrorism Act, 1997, empowering the Government or the Special Court to specify the place of trial caters to such kind of cases, but this provision should not, in any manner, compromise with the requirement of fair trial.

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

----S. 15---Penal Code (XLV of 1860), Ss.324/353/148/149---West Pakistan Arms Ordinance (XX of 1965), S.13---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Order of trial of accused in jail premises, challenged---Trial Court had-granted the approval to the order of the Home Secretary for trial of accused in jail premises vide the impugned order ---Anti Terrorism Court according to subsection (1) of S.15 the Anti-Terrorism Act, 1997, would sit at such a place which the Government might specify including "Cantonment area" or "Jail Premises" or the Court might direct in terms of subsection (2) of S.15 the said Act for trial of a particular case at such a place which it might specify and finally in terms of subsection (3) thereof even the Anti-Terrorism Court itself was competent to decide the place of trial which it considered expedient or desirable---Order of the Home Secretary did not spell out any reasons, nor such was a mandatory requirement under the law, but a well reasoned and speaking order ensured transparency and inspired greater confidence---High Court in an earlier Constitutional petition, while upholding the detention of accused, had referred to the seriousness of the case---Omission of reasons in such circumstances by itself would not make the order . of the Home Secretary unlawful in absence of any apparent mala fides---Power with the executive to decide the place to trial did not impinge or independence of Judiciary or conscience of a Court---Trial continued to bean open trial which was to be regulated by the Trial Court with due regard to security of the parties, witnesses and the Court itself---Rights of the accused and the principles of appreciation of evidence would continue to remain the same---Apprehensions of accused thus, were misconceived---Impugned order did not suffer from any jurisdictional defect to warrant interference under Art. 199 of the Constitution---Constitutional petition was dismissed in circumstances.

Asif Ali Zardari v. Special Judge (Offences in Banks) and 10 others PLD 1992 Kar. 437; Muhammad Ashfaq Chief v. Government of Sindh and others PLD 1996 Kar. 326; Mehram Ali and others, v. Federation of Pakistan and others PLD 1998 SC 1445; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through the Prime Minister and another PLD 1989 Kar. 404; 1990 PCr.LJ 1687; Kehar Singh and others v. The State PSC 1989 SC 533; The State v. Islamuddin alias Changha 1984 PCr.LJ 273; Sar Khan v. The State and another PLD 1967 Pesh. 314; Sheikh Hafeez Ahmad v. The State through Secretary (Home), Government of the Punjab, Lahore PLD 1975 Lab 1453 and Inayat Hussain v. The State AIR 1956 All. 448 ref.

Pervaiz Inayat Malik for Petitioners.

Syed Shabbar Raza Rizvi, A.-G., Punjab assisted by Syed Muhammad Jalaluddin Khuled for Respondents.

Date of hearing: 5th March, 2003.

P L D 2003 Lahore 457

Before Tassaduq Hussain Jilani, Raja Muhammad Sabir and Asif Saeed Khan Khosa, JJ

MUHAMMAD AZAM---Petitioner

Versus

MUHAMMAD IKRAM alias MUHAMMAD AKRAM and another---Respondents

Criminal Revision No.537 of 2001, heard on 2nd April, 2003.

Juvenile Justice System Ordinance (XXII of 2000)------

----Ss. 2(b) & 7---Penal Code (XLV of 1860), S. 302/34---Criminal Procedure Code (V of 1898), S. 439---Child---Determination of age--­Appreciation of evidence---Accused, claiming himself to be a child within the meaning of the Juvenile Justice System Ordinance, 2000 moved an application that his trial be separated and he be dealt with in the terms of the said Ordinance---Trial Court got the accused examined from a Medical Board which reported that the accused was 23 years of age and accordingly at the time of occurrence he was about 20 years of age---Trial Court, however, summoned the Radiologist arid a Dental Surgeon who gave opinion that the age determined by the Medical Board was not exact and there could be a variation of two to three years---Accused also relied upon the Nikahnama of his parents and after enquiry through the Station House Officer of the concerned Police Station which was in the affirmative, prosecution was ordered by the Trial Court to prepare the separate challan of the accused treating him in terms of the Juvenile Justice System Ordinance, 2000 -­Validity---High Court, ordinarily, would not summon the original record in proceedings in revisions but in view of the procedure adopted by the Trial Court, mandate of the Juvenile Justice System Ordinance, 2000 and with concurrence of the parties requisitioned the same and found discrepancies and irregularities in entries in the relevant record. concerning birth of the child and the marriage of the parents of the accused and unusual features of binding of the relevant Registers of the Union Council concerned---Trial Court had no occasion to summon the Radiologist and the Dental Surgeon, even if they had been summoned, their opinion could be interpreted either way and there was nothing on record and no tenable reason existed either to interpret the opinion of those two doctors in favour of the accused---Orders by the Trial Court were against the weight of record and material placed before the Court---Trial Court, in view of such evidence, could not declare the accused to be of less than eighteen years .bf age at the time of occurrence, which orders were set aside by the High Court in revision with the direction to the Trial Court to decide the case of the accused as an ordinary Court.

M. Iqbal Bhatti assisted by Malik Muhammad Imtiaz Mahl for Petitioner.

Ehsan Qadir . Shah assisted by , Ehtesham , Qadir Shah for

Date of hearing: 2nd April, 2003.

P L D 2003 Lahore 461

Before Tassaduq Hussain Jilani and Raja Muhammad Sabir, JJ

PAKISTAN LAWYERS FORUM---Appellant

Versus

FEDERATION OF PAKISTAN and another---Respondents

Intra-Court Appeal No.844 of 2002, decided on 10th April, 2003.

(a) Administration of justice---

---- Request for adjournment by counsel---Court has to regulate the proceedings and that cannot be left to the whims of the parties and their counsel---Counsel has a right to be heard adequately in a trial or appeal which cannot be transgressed by the Court of justice---Time of the Court is public time and it is the duty of all the actors involved in the litigation process i.e. the parties, the counsel and the Courts to make a judicious use of time---Unnecessary time granted in a case is denial of time to some other case---Matter before the High Court, in the present case, was at motion stage and the counsel of the appellant had been heard at length for several days whereafter pre-admission notice was issued to the Attorney-General for Pakistan and appellants' counsel again resumed his arguments and argued the case on 6 dates and completed his submissions and after arguments of the Attorney-General, the counsel for appellant was again heard and the case with the consent of counsel of the appellant was taken up after Juma Prayer when he appeared in the Court at, 3-00 p.m. without brief and requested the Court to wait till he brought his brief back from home and on question as to how much time he would take to complete his submissions, he gave a non­committal reply---Validity---Such reply of the counsel was a pointer to the fact that he was not too keen to conclude in near future rather would further prolong the case---Request of appellant's counsel for further adjournment, in any manner, would not be of any assistance nor would promote the ends of justice in circumstances.

Imranullah v. The Crown PLD 1954 FC 123 distinguished.

(b) Legal Framework Order (24 of 2002)---

----Art. 3 & Sched.---Law Reforms Ordinance (XII of 1972), S.3---Intra ­Court appeal---Contentions of the appellant against the judgment of the High Court in Intra-Court appeal were that the High Court had not correctly appreciated the import and effect of the law laid down by the Supreme Court in Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 Supreme Court 869, that in the Supreme Court Judgment in Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869 Supreme Court, by invoking the doctrine of necessity, had allowed the Chief Executive to amend the Constitution and to take all legislative measures and steps for attainment of declared objectives of the regime as mentioned in the said judgment if the Constitution did not provide for remedy; that the High Court in its Constitutional jurisdiction had observed that the country could not be plunged into chaos, confusion and instability but had lost sight of the fact that it was not prayed before the Court that the elections be scrapped but it was sought that the Legal Framework Order, 2002, by which the then Chief Executive had installed himself as President for five years, be struck down as violative of the Supreme Court judgment in. Zafar Ali Shah's case (PLD, 2000 Supreme Court 869); that the power to amend the Constitution granted by the Supreme Court in Zafar Ali Shah's case (PLD 2000 Supreme Court 869) was qualified both in substance and time framework i.e. that the salient features of the 1973 Constitution, independence of judiciary, federalism and parliamentary form of Government blended with Islamic provisions, could not be tinkered with; that any amendment made would hold good only for a period of three years and thereafter the 1973 Constitution shall remain supreme; that the Legal Framework Order, 2002, by virtue of which the Chief Executive had become President for a term of five years, was arbitrary and was not in consonance with the canons of democracy and was violative of the mandatory provisions relating to the election to the office of the President of Islamic Republic of Pakistan; that by virtue of Art. 2A of the Constitution of Islamic Republic of Pakistan, 1973, the Objectives Resolution had become substantive part of the Constitution; that the Objectives Resolution had been declared to be the "grund norm" and any amendment which was violative of the same had to be struck down; that in terms of the Objectives Resolution, "Sovereignty is a trust of God and the chosen representatives of people exercise it as a "sacred trust", the assumption of office by the President for five years, was a betrayal of the concept of trust; that the election for office of the President was not held in accord with the procedure laid down in the Constitution. and therefore even the Parliament was not properly constituted in terms of Art.50 of the Constitution; that the Constitution of Pakistan, 1973 having been fully restored all the amendments brought about and actions taken by then Chief Executive, had to tie adjudged in the light of the criterion laid down 'by the Supreme Court in Zafar Ali Shah's case (PLD 2000 Supreme Court 869) and Wasim Sajjad and others v. Federation of Pakistan through Secretary, Cabinet Division and others PLD 2001 Supreme Court 233); that the Referendum Order, -2002 was an ordinary piece of legislation and it could not be made part of the 1973 Constitution and the Supreme Court in the case of Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others PLD 2002 Supreme Court 853) "had clearly held that the consequences flowing from holding 6f Referendum would be determined at an appropriate time and by virtue of the Referendum Order, 2002; that through the Legal Framework Order, 2002 an attempt was being made to amend Art. 46, cl. (b) of the Constitution, the same was not tenable and warranted to be struck down by High Court; that the judgment of the Supreme Court in Asma Jilani v. The Government of Punjab PLD 1972 Supreme Court 139, laid down that in an Islamic State, the sovereignty belonged to Almighty Allah; that the assumption of power by the President and the amendments brought in the Constitution beyond the mandate granted by the Supreme Court would tantamount to subversion of the Constitution and warranted a penal action in terms of Article 6 of the Constitution read with High Treason (Punishment) Act, 1973---Validity--­Generally such matters ultimately were left to be decided by the political sovereign and the Parliament---None of the Political parties, represented in the Parliament, having challenged the Legal Framework Order, 2002 in the Court and were currently engaged in a dialogue for a consensual formula on the issues raised with regard to the Legal Framework Order, 2002, Intra ­Court appeal against the High Court Judgment to the, effect that there appeared to be no infringement of the Judgment of the Supreme Court in Zafar Ali Shah's case, was dismissed.

Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869; Asma Jilani v. The. Government of Punjab PLD 1972 SC 139; Wasim Sajjad and others v. Federation of Pakistan through Secretary, Cabinet Division and others PLD 2001 SC 233; Qazi Hussain Ahmad, Ameer.Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others PLD 2002 SC 853; Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151; The State v. Zia-ur-Rehman and others PLD 1973 SC 49; Haji Abdullah v. Presiding Officer, Summary Military Court No.9, Karachi PLD 1980 Kar. 498; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Abdul Majeed Pirzada v. Federation of Islamic Republic of Pakistan and 87 others PLD 1990 Kar. 9; Abdul Majeed Pirzada v. Federation of Pakistan and others PLD 1997 SC 232; Imranullah v. The Crown PLD 1954 FC 123; Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657; Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595; Mahmood Khan Achakzai v. Federation of Pakistan and others PLD 1997 SC 426; Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388 and Learned Hand: The Man and the Judge by Gerald Gunther ref.

A.K. Dogar for Appellant.

Makhdoom Ali Khan, Attorney-General for Pakistan, Sher. Zaman Khan, Malik M. Pervaiz Akhtar and Muhammad Nawaz Bhatti, Deputy Attorneys-General alongwith Shahid Karim for Respondents.

Dates of hearing: 27th, 28th November; 3rd December, 2002; 21st, 28th February; 6th, 7th, 17th, 18th, 27th, March; 3rd and 4th April, 2003.

P L D 2003 Lahore 481

Before Ali Nawaz Chowhan and Mian Muhammad Jehangir, JJ

KHALID ALI LIBRU---Appellant versus

THE STATE---Respondent

Criminal Appeal No. 1490 of 2000, heard on 10th April, 2003.

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

----S. 302(b)---Suppression of Terrorist Activities (Special Courts) Act (X of 1975), S.5-A---Criminal Procedure Code (V of 1898), Ss.342 & 340(2)--­ Procedure of Special Court---Accused was present in the Court when the charge was framed and he pleaded not guilty to the charge---Accused remained present until the next date but after that date he moved an application reflecting that he was sick and sought adjournment which was granted and on the next date fixed he submitted an application for exemption of his appearance for the said date on account of ailment which was allowed, again on the next date another application was submitted and he was allowed. leave and the presence of his counsel was counted towards his presence--­ Accused, again absented on the next date when the order allowing him bail was withdrawn and his warrant for arrest was issued and subsequently perpetual warrant of arrest were issued against him and action was also taken against his surety---State Counsel was appointed on leis behalf and proceedings continued in presence of his counsel---Statement of the Investigating Officer was recorded during the proceedings and case was adjourned for recording of the statement of the accused under S. 342, Cr.P.C. but on this date accused did not appear in person rather his counsel recorded statement on his behalf and the matter was fixed for arguments and later the judgment was announced---Accused, after the announcement of the judgment before expiry of 60 days, prescribed under S. 5-A(7), .Suppression of Terrorist Activities (Special Courts) Act, 1975 applied for setting aside the judgment so that he could join the proceedings from where he left which was disallowed and accused had been arrested for undergoing the sentence--­Contention of the accused was that the evidence which was recorded during his absence, had to be recorded afresh and he had also to be given the opportunity under Ss.342 & 340(2), Cr.P.C. being mandatory provisions as his counsel could not substitute him for his statement under S.342, Cr.P.C.---Validity---Trial Court had followed some procedure with respect to S.5-A, Suppression of Terrorist Activities Act, 1975 but could not issue the required proclamation; it had, therefore, not become mandatory for the Trial Court, in circumstances, to follow the procedure in entirety as envisaged by S.5-A of the said Act---Accused started absenting himself in the midstream but had his representation through his counsel who cross­ examined the witnesses thoroughly and professionally and there was nothing to suggest any prejudice having been caused to the accused in that regard--­Counsel of the accused, however, could not substitute him for recording the statement under Ss.340(2) & 342, Cr.P.C.---Rights under Ss.342 & 340(2), Cr.P.C. were basic and valuable rights which accrue to an accused for explaining incriminating evidence standing against him as well as for defending himself in his capacity as a witness---Opportunity ought to be provided to the accused with respect to his examination under S.342, Cr.P.C. or for his appearing as his own witness under S.340(2), Cr.P.C. so that he was left with no grievance of having not been heard personally--­Statements of all the witnesses appearing on behalf of the prosecution and who had been thoroughly cross-examined on dates when the accused appeared and later when he absented himself, were directed to remain intact by the High Court---Complainant, however, had contended that in view of the conduct of the accused he would delay the case further if the case was remanded to the Trial Court---High Court, in view of such apprehension of the complainant but as a safeguard by fixing a .periphery of time for recording statements under S.342 or 340, Cr.P.C. while directing the Trial Court to record said statements on the first day the accused appear and to rewrite the judgment thereafter and while ensuring that the whole exercise did not take more than three, weeks from the receipt of judgment of the High Court and if the, accused did not cooperate, it would be deemed that he had surrendered his such right---High Court, in circumstances, set aside the judgment of Trial Court but with the condition that until a fresh judgment was given by the Trial Court in view of directions of the High Court, the accused shall not be released.

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

----Ss. 342 & 340(2)--- Rights under Ss. 342 & 340(2). Cr.P.C. were basic and valuable rights which accrue to an accused for explaining incriminating evidence standing against him as well as for defending himself in his capacity as a witness---Opportunity ought to be provided to the accused with respect to his examination under S. 342, Cr.P.C. or for his appearing as his own witness under S. 340(2), Cr.P.C. so that he was left with no grievance of having not, been heard personally.

Khawaja Sultan Ahmad for Appellant.

Miss Nausheen Tasheen for the State.

Mian Aftab Farukh for the Complainant.

Date of hearing: 10th April, 2003.

P L D 2003 Lahore 486

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MIS.RAZIA YAQUB---Appellant

Versus

Malik MOHAMMAD ASHIQ and 2 others---Respondents

Criminal Appeal No.802 of 1995, decided on 17th April, 2003.

(a) Contempt of Court Act (LXIV of 1976)-----

----S. 10---Appeal---Maintainability---Matter of contempt of Court essentially lies between the Court and the contemner and if in a given case the concerned Court has not felt persuaded to proceed against the alleged contemner in that regard then ordinarily an appeal would not be competent against such an order passed by the Court.

West Pakistan Water and Power Development Authority through Chairman v. Chairman, National Industrial Relations Commission PLD 1979 SC 912 ref.

(b) Contempt of Court Act (LXIV of 1976)----

----S. 10---Appeal---Maintainability---If the Court concerned has not felt aggrieved of the conduct of the alleged contemner and if the Court has not felt persuaded to proceed against him in that regard then no outsider or' a third party should or can feet aggrieved of such an order so as to prefer an appeal in that regard under S.10, Contempt of Court Act, 1976.

West Pakistan Water and Power Development Authority through Chairman v. Chairman, National Industrial Relations Commission PLD 1979 SC 912 ref.

(c) Contempt of Court Act (LXIV of 1976)--

----S. 10---Appeal---Maintainability---Judge, in the present case, had decided not to proceed against the concerned persons regarding alleged commission of contempt of Court by them but at the same time had gone on to invalidate the registered sale-deed through the same order---Matter before the Judge, in circumstances, had not remained confined to the issue of contempt of Court alone which surely was restricted between the Court and the contemner; but the matter had travelled much beyond that and had seriously affected the rights of a party to the contempt petition over a valuable piece of property--­Order of invalidation of registered sale-deed in issue by the High Court in contempt proceedings was not only unjust and imprudent but. also vitiated by condemning the appellant unheard which was set aside---Transaction with regard to the property had taken place about eleven years ago and the appellant had acquired a vested right in the property through a registered sale-deed and invalidation of the said registered sale-deed by the High Court in contempt proceedings had divested the appellant of her rights over the said property---If the registered sale-deed was invalidated by the High Court through a contempt petition by short-circuiting the normal process and procedure of the law in that regard then the appellant would be left with no "right" to have recourse to any Court of law with regard to her divesting of that property by the High .Court---Appellant in such a case would be unable to tile any suit in that regard before a Civil Court because the order of invalidation would have been passed by the High Court and the appellant would not have right of appeal before the Supreme Court either, as she shall have to seek leave to appeal under Art. 185 of the Constitution---Appellant in all such ventures shall have no opportunity to establish through producing evidence that she was a bona fide purchaser of -the property in question without notice of the status quo order issued by the High Court---High Court. in the order of invalidating the sale-deed had itself found that appellant had no notice of the prohibitory order passed by High Court---Such a determination of civil rights, nay Fundamental Rights; of a person over property leaving the affected person with no "right" of recourse to court of law, was unholesome and unpalatable---High Court, in circumstances, declined to remand the case and found it to be advisable and prudent to leave the parties to have recourse to a Civil Court in respect of validity or otherwise of the registered sale-deed in issue so, as to establish their respective claims regarding the same after leading their respective evidence, if so advised---Person so affected, indeed had not only a right of appeal available to her under S.10, Contempt of Court Act, 1976 but also that she as quite justified in filing the appeal.

(d) Contempt of Court Act (LXIV of 1976)----

----S. 4---Constitution of Pakistan (1973), Arts. 204 & 175---Contempt of Court ---Punishment---Contemner can be convicted by the Court and can be sentenced with imprisonment , and fine to the extent provided in S.4, Contempt of Court Act, 1976 and Art.204, Constitution of Pakistan---No further jurisdiction has been conferred by the said provisions upon a Court seized of such a matter---Provisions of Art.175 of the Constitution provide that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

Mst. Saeeda Akhtar and others v. Lal Din and others PLD 1981 Lah. 623; Darbari Ram and another v. Ghulam Farid-Fazal Karim and others AIR 1930 Lah. 858 and Sukhdeo Rai and others v. Ram Narain Rai and another AIR 1930 All. 387 ref.

(e) Contempt of Court Act (LXIV of 1976)----

----S. 4---Contempt proceedings---Sale of a property brought about in violation or disregard off a prohibitory order issued by a Court cannot be invalidated through contempt proceedings.

Mst. Saeeda Akhtar and others v. Lal Din and others PLD 1981 Lah. 623; Darbari ram and another v. Ghulam Farid-Fazal Karim and others AIR 1930 Lah. 858 and Sukhdeo Rai and others v. Ram Narain Rai and another AIR 1930 All. 387 ref.

Muhammad Sabir Khan and 13 others y. Rahim Bakhsh and 16 others PLD 2002 SC 303 and Muhammad Sharif and others v. Lahore Development Authority and others 1989 MLD,95 distinguished.

Ijaz-Hussain Batalvi for Appellant.

Malik Waqar Saleem for Legal Heirs with Kh. Abrar Majal of Respondent No. 1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing; 17th April, 2003.

P L D 2003 Lahore 493

Before Tassaduq Hussain Jilani and M. Naeemullah Khan Sherwani, JJ

DIRECTOR, INVESTIGATION AND INTELLIGENCE CUSTOMS, EXCISE AND SALES TAX, LAHORE---Appellants

Versus

MUHAMMAD NAWAZ and another---Respondents

Intra-Court Appeals Nos. 440/ 1998, 439/ 1998, Criminal Miscellaneous Nos.168/Q/1999„ 188/Q/2000, Writ Petitions Nos.6741/2002 to 6746/2002, 15463/1999, 6676/1998,18099/1998 12490/1998, 19398/2000, 22010/2000, 12647/2000, 12933/2000, 14712/1999, 1875/1999, 2467/1999 2415/1999, 6850/2000, 2950/1999, 6675/1998, 4161/2000, Criminal Revisions Nos.924/2000, 927/2000 and 928/2000, decided on 24th March, 2003.

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

----S. 5(1)(2)---Trial of offences under Special Laws---Scope---Criminal Procedure Code, 1898 though was meant primarily to regulate the investigation, inquiry and trial under the Pakistan Penal Code, 1860 (in terms of S. 5(1), Cr. P.C, but it stipulates an exception in terms of S.5(2), Cr.P.C.---Mandate of S. 5(2), Cr.P.C. is that persons who are proceeded against under special law shall be dealt with and their cases inquired into, investigated and tried .according to the procedure laid down in the said special law---Situation could arise where an enactment provides a special procedure only for some matters and such matters would be dealt with according to the procedure laid down in said Special Law---Where. however, the Special Law is silent, the provisions of Criminal Procedure Code, 1898 shall apply.

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

----S. 161---Sales Tax Act (VII of 1990), S. 37-A & B---Criminal Procedure Code (V of 1898), Ss. 4(s) & 54---S.R.O. 338(1)82 dated 22-4-1982---Power to arrest and prosecute- Procedure and scope---Registration of an F.I.R., , unless so prescribed in law, is not sine qua non for arresting a person--­Concept of "'Police Station" in terms of S. 4(s), Cr.P.C. and the registration 'of F.I.R. under S. 154, Cr.P.C. would be relevant to offences under all laws unless, of course, a different procedure is laid down in any special law regarding arrest or registration of a case or report regarding an offence--­First Information Report of a cognizable offence under the Customs Act, 1969 can be registered even at an ordinary Police Station but thereafter the investigation has to be carried out by the Customs Officer under the Customs Act, 1969---Reports regarding offences can be lodged and Registers of arrest and detention can be maintained by-the officers under Special Laws---Reports' which are registered by the concerned Departments under the Customs Act, 1969 or the Sales Tax Act, 1990 are the first reports with regard to offences under said laws, and in this regard officers have been authorized by the Central Board of Revenue through a notification---Such reports, however, are not F.I.Rs. Which are registered at the Police Stations ---Principles.--­[Muhammad Nawaz and another v. The State and 2 others PLD 1999 Lah. 18 overruled].

Under section 161 of the Customs Act, 1969 and section 37-A of the Sales Tax Act, 1990 an appropriate/concerned officer under the respective Act can arrest a person, in circumstances and for a limited period prescribed in the relevant provisions of the said law, without registration of a formal F.I.R. Even under the Criminal Procedure Code there are situations /circumstances where the police officer can arrest a person in circumstances given in the relevant provision without registration of a formal F. I. R. (for 24 hours only). After the arrest, however, both, under the Special Laws and under the Criminal Procedure Code, the person arrested has to be dealt with strictly in terms of the relevant provisions of the Special Act or the Criminal Procedure Code i.e. he has to be produced before a Magistrate, if a case has been registered, he can be kept in custody/physical remand for' a certain period through a judicial order, then he has to be sent to judicial lock­up and after due investigation if there is no material justifying further detention or trial he has to be set free in terms of section 161(10) of the Customs Act and sections 37-B(8)(9) of the Sales Tax Act. The provisions for release/discharge of persons under the Criminal Procedure Code are provided in sections 63 and 169 of the said Code. If the accused is to be tried a report is submitted before the Special Judge in terms of section 161(13) of the Customs Act or section 37-B(13) of the Sales Tax Act. But a person arrested cannot be kept in custody beyond the limited period of 24 hours without a judicial order and without registration of a, formal F. I. R. The case registered is investigated and, if there is credible material justifying trial, a report is submitted under section 173, Cr.P.C. before the trial Court accordingly.

The registration of an F.I.R., unless so prescribed in law, is not sine qua non for arresting a person. The concept of a "police station" in terms of section 4(s) of the Cr. P.C. and the registration of F.I.R. under section 154, Cr.P.C. would be relevant to offences under all laws unless, of course, a different procedure is laid down in any Special Law regarding arrest or registration of a case or report regarding an offence. An F.I.R. of a cognizable offence under the Customs Act can be registered even at an ordinary Police Station but thereafter the investigation has to be carried out by the Customs Officer under the Customs Act. Reports regarding offences can be lodged and Registers of arrest and detention can be maintained by the officers under the Special Laws. The reports which are registered by the concerned Departments under the Customs Act or the Sales Tax Act are the first reports with regard to offences under these laws, and in this regard certain officers have been authorized by the Central Board of Revenue through a notification. These reports are not F.I.Rs. which are registered at the Police Stations. These are reports in the generic sense. These reports are neither conclusive nor an indictment and no prejudice is caused. These are merely the first steps which set the machinery of law in motion. On account of the nature of the exercise which the Officers under the Customs Act have to carry out to check smuggling in the entire length and breadth of the country it has been provided under the Customs Act that a person so arrested under the Special Law is to be brought to the "nearest officer of Customs authorized by the Collectorate of Customs" or, "if there is no such officer of Customs within a reasonable distance, to the officer in charge of the nearest police station". (Section 61(3) of the Customs Act). With minor variations and application of provisions of Cr.P.C. qua arrest, almost similar provisions have been laid down in the Sales Tax Act, 1990. Both provide for maintaining of a Register of arrest and detention. The Central Board of Revenue has been authorized under section 3 read with section 4 of the Customs Act to notify such officers to "exercise such powers and discharge such duties" as are specified in the notification to be issued. In exercise of those powers, the CBR from time to time, through Notifications/S.R.0s., has been authorizing various officers of the Customs Department and the Directorate of Intelligence and Investigation (Customs and Excise), of the Pakistan Army, of the West Pakistan Rangers and of the Pakistan Navy, to exercise powers and discharge duties under the Customs Act. S.R.O.388(1)82 dated 22nd April, 1982 was a Notification issued by the C.B.R. under the afore-referred provisions.

Muhammad Nawaz and another v. State and 2 others PLD 1999 Lah. 18 overruled.

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

----Ss. 161 & 156---S.R.O. 388(1)82 dated 22-4-1982---Registration of case against the accused by Directorate of Intelligence and Investigation (Customs and Excise) on the complaint of Superintendent, Customs and Intelligence, who was an authorized officer, in terms of S. R.O. 388(1)(82) dated 22-4­1982 was not illegal, without lawful authority or without any backing of law­--[Muhammad Nawaz and another v. The State and 2 others PLD 1999 Lah. 18 overruled].

Muhammad Nawaz and another v. The State and 2 others PLD 1999 Lahore 18 overruled.

(d) Sales Tax Act (VII of 1990)---

----S. 37-A---Power to arrest and prosecute---Any officer of Sales Tax not below the rank of an Assistant Collector of Sales Tax or any officer of equal rank authorized by the Central Board of Revenue can arrest a person for an offence under the Sales Tax Act, 1990.

(e) Interpretation of statutes-----

---- Cases under Special Law have to be dealt with, investigated and tried under the Special Procedure laid down therein---Principles.

The cases under the Special law have to be dealt with, investigated and tried under the special procedure laid down therein.

Where a statute has created a special offence and lays down a special procedure for the trial of such offence, it is that procedure which must be followed and not the ordinary procedure. Furthermore even if there was some irregularity at the investigation stage, the same could not affect the jurisdiction of the Special Court.

The State v. Hamtho 1971 SCMR 686 and Noorul Islam v. The State 1986 SCMR 1836 ref.

(f) Jurisdiction---

---- Illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court.

Noorul Islam v. The State 1986 SCMR 1836 ref.

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

----S. 161---Sales Tax Act (VII of 1990), S.37-A---Constitution of Pakistan (1973), Art. 70 & Fourth Sched., Concurrent Legislative List- --Provisions of S.161, Customs Act, 1969 and S.37-A, Sales Tax Act, 1990 were relatable to enforcement of criminal law dimension of the said Acts and thus fell in the Concurrent Legislative List of the Fourth Schedule of the Constitution.

A. Karim Malik and Khan Muhammad Virk for Appellant.

Dr. A. Basit for Respondents.

Date of hearing: 20th February, 2003.

P L D 2003 Lahore 512

Before Ali Nawaz Chowhan, J

MUHAMMAD ASIF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.471-M of 2003 in Criminal Revision No.149. of 2002, heard on 15th April, 2003.

Criminal Procedure Code (V of 1898)--

----Ss. 397, 426, 439 & 561-A---Penal Code (XLV of 1860), Ss. 302, 109 & 34---West Pakistan Arms Ordinance (XX of 1965), S.13---Accused was sentenced to imprisonment for life under Ss.302,-109 & 34, P.P.C. and got three years' rigorous imprisonment and fine under the West Pakistan Arms Ordinance, 1965 in one occurrence---Contentions were that the case under the West Pakistan Arms Ordinance, 1965 also arose because of the case of murder and until an order was made under S.397, Cr.P.C. the sentences of the convict were to run consecutively and that Appellate Court was fully empowered to exercise power under S.397, Cr.P.C. which was exercisable by the Trial Court in view of powers vesting under. S.426, Cr.P.C.--­ Validity---High Court while invoking the provision of S.397, Cr.P.C. directed that the sentences in .both the cases would 'run concurrently.

AIR 1929 All. 585; AIR 1931 Bom. 529(I); AIR 1961 Pat. 138; AIR 1964 Andh. Pra. 449; Zakir Ali v. The State PLD 1977 Kar. 833 and Altaf Hussain v. The State 1987 PCr.LJ 2169 fol.

Sardar Khuram Latif Khan Khosa for Petitioner.

Salina Malik, A.A.-G. for the State.

Date of hearing: 15th April, 2003.

P L D 2003 Lahore 514

Before Ali Nawaz Chowhan, J

NATIONAL INSURANCE COMPANY LIMITED,, FAISALABAD through Manager, H. B. L. ---Petitioner

Versus

NAZEER AHMAD AQEEL, ADDITIONAL SESSIONS JUDGE, FAISALABAD and 2 others---Respondents

Criminal Miscellaneous No.278/M of 2003, decided on 3rd March, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 523, 550 & 561-A---Seizure of stolen property---Application for Superdari---Petition under S. 561-A, Cr.P.C. against order passed by the Court of the Magistrate and the Sessions Judge in a case of Superdari of a vehicle which was stolen---Contention of the petitioner was that, it being an insurance company and having paid the ensured amount to the owner, it had the locus standi for the possession of the vehicle---Courts below declined to give the vehicle on Superdari to the petitioner---Validity---Held, Magistrate could have declined granting the Superdari of the vehicle to the petitioner but the Court had to take some positive steps in ensuring that the vehicle was delivered to the Police Station/Illaqa Magistrate where the F.I.R. was lodged so that the seized property did not remain in the hands of officials for an indefinite period and was saved from damage and loss---Courts, having not done so had defeated the very rationale behind S.523, Cr.P.C.---Orders of the Courts were set aside by the High Court---Petitioner was directed to appear before the Magistrate on the specified date who shall ensure while adopting a proper legal procedure, that the property was delivered safely to the police station concerned so that the police of the said police station produces the same before the Illaqa Magistrate where the theft had taken place for action in accordance with law---Magistrate could ask the petitioner to join the police in this exercise and shall specify a date for its production before the Illaqa Magistrate, who shall intimate its receipt to the Magistrate mentioning date and time and shall proceed in accordance with law.

Malik Munawar Hussain Khan for Petitioner.

Sohail Ahmad Dar, Assistant, Advocate-General.

P L D 2003 Lahore 517

Before Tassaduq Hussian Jilani and Asif Saeed Khan Khosa, JJ

KHAN HAROON RESIKH---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No.20224 of 2002, decided on 2nd December, 2002.

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

----S. 9---Constitution of Pakistan (1973), Art. 199---Constitutional petition-­Bail, grant of---Accused, a 'civil servant, was behind the bars for the last more than one year; reference against the accused was filed in February, 2002 and even the charge had not been framed; there was no allegation that adjournments were sought by the accused or his counsel; allegations levelled against the accused mostly pertained to violation of some rule but it was not denied that so far as said allegations were concerned, mostly the orders were passed by the Competent Authorities; mere acquisition of properties was not an offence, the offence was constituted when the accused fails to account for those properties; such exercise of proving the acquisition of the properties disproportionate to accused's known sources of income and the recording of defence evidence to rebut those charges was likely to take sufficient time; provision of S. 16(a) of the .Ordinance mandated conclusion of trial within thirty days therefore the incarceration of accused for an indefinite period would not be in accord with the canons of equity and wife of accused was seriously ill and accused had minor children---Bail was granted to the accused by the High Court subject to his furnishing bail bonds in the sum of Rs.10,00,000 with two sureties each in the like amount to the satisfaction of the Trial Court ---Accused's passport shall be surrendered to the Trial Court and shall not be given to him without leave of the High Court.

Anwar Saifullah Khan v. The State 2001 SCMR 1040; Ch. Zulfiqar Ali v. The State PLD 2002 SC 546 and Writ Petition No. 18067 of 2002 ref.

M.A. Malik assisted by Faisal Maalik Buttar for Petitioner.

Naveed Rasool Mirza, Prosecutor-General, NAB assisted by Jawaid Shaukat Malik, Deputy Prosecutor-General.

P L D 2003 Lahore 522

Before Mian Saqib Nisar, J

RASHIDA BEGUM --- Appellant

Versus

Ch. MUHAMMAD ANWAR and others---Respondents

Regular First Appeal No. 87 of 1985, (Now First Appeal from Order No. 143 of 1986), heard on 28th March, 2003.

(a) Arbitration Act (X of 1940)---

----Ss. 17 & 39---Judgment in terms of away or refusal to set aside award--­Appeal---Scope---Provisions of S.39, Arbitration Act, 1940 provide an appeal against the order refusing to set aside the award---Both the provisions of Ss. 17 & 39, Arbitration Act, 1940 are independent in nature and cater for two distinct eventualities and have neither any overlapping nor overriding effect on each other---revisions of S.39(vi), Arbitration Act, 1940 confers a right upon an aggrieved person to file appeal against an order where the Court has either set aside the award or passed a refusal order---If through a composite order, the Court has refused to set aside the award and in the same order/judgment makes the award rule of the Court followed by the decree, the refusal part of the order shall, to all intents and purposes, be considered separate and independent order and shall be appealable under S.39, Arbitration Act, 1940, while against the other part of the order and the decree, the appeal shall only be maintainable if the conditions laid down in S.17 of the Act are met---Provisions of S.17 of the Act, in no way, circumscribe, frustrate or defeat the right of an aggrieved party to challenge m appeal the order mentioned in S.39, Arbitration Act, 1940 only for the reason that in the same order, the award has been made the rule of the Court etc.

(b) Arbitration Act (X of 1940)---

----Ss. 14, 17 & 30---Judgment in terms of award---Objections---Reply to an application under Ss. 14.& 17, Arbitration Act, 1940 cannot be treated to be the objections in terms of S.30, Arbitration Act, 1940---If a party seeks the setting aside of award on the grounds mentioned in S.30 of the Act, he must apply to the Court, through a separate proper application raising specific plea.

(c) Arbitration Act (X of 1940)---

----Ss, 17 & 30---Judgment in terms of award---No objection was filed in terms of S.30, Arbitration Act, 1940---Duty of Court---Court, while considering the question, if the award should be made rule of the Court or otherwise, was not supposed to remain dormant and to play the role of post office, by affixing the judicial stamp on the award---Court had ample suo motu power and in exercise thereof, was duty bound to see if the award which was to be made rule of the Court, did not violate any provision of law; the rules of justice and/or acquiescence, even if the parties had consented that the award be made rule of the Court---Mere fact that the arbitrator, in the present case, himself was a party to the dispute, was inherently incompetent to act as an arbitrator and pronounce the award impinging the fundamental rule that no one shall be a Judge of his own cause; such an error was apparent on the surface of the award, rendering the same invalid--Such an award could not have been made the rule of the Court.

(d) Power of Attorney---

---- Must be strictly construed.

Muhammad Yasin and others v. Dost Muhammad and others PLD 2002 SC 71 ref.

(e) Arbitration Act (X of 1940)---

-----Ss. 22---Appointment of arbitrator---Power of attorney---Attorney had been conferred the general powers to conduct the cases before the Courts and also to alienate the property, but there was no specific power given to him to enter into any arbitration agreement, on behalf of the persons who had executed the powers-of-attorney, for the reference of the matter to the arbitrator---General powers, could not in any manner be construed to have the intention of the principals to authorize their agent to seek the resolution of the dispute through arbitration---Such conspicuous omission of authority in the powers-of-attorney clearly indicated that the attorney was never authorized to enter into arbitration agreement---Notwithstanding whether the attorney factually executed the arbitration agreement on behalf of the principals and had agreed for the appointment of a person as arbitrator; even on the principle of acquiescence on his part such an agreement, would not bind the principals.

(f) Arbitration Act (X of 1940)---

----S. 22---Appointment of arbitrator- Arbitrator and witnesses stated that the party was present during the arbitration proceedings and had also accepted the award---No arbitration proceedings had been filed before the Court to prove if any proper reference was filed before the arbitrator; he summoned the parties, proceeded with the arbitration by adhering to the principles of natural justice; marked the presence of the parties and no documentary proof had been brought on the file to establish if the parties gave their consent to the award---Validity---Held, on the basis of bold and oral statement of the arbitrator and the unconnected witnesses whose presence at the relevant point of time and venue was not established, it could not be 'concluded that the party had acquiesced in the arbitration by the alleged arbitrator; participated in the proceedings, before him and also accepted the award.

(g) Arbitration Act (X of 1940)---

----Ss. 17, 30 & 2(a)---Arbitration agreement---Parties to a dispute could not validly appoint anyone of them as an arbitrator---Principles illustrated--­Notwithstanding the fact that objections were not filed, Court should, in the exercise of its suo motu jurisdiction have, refused to make the award rule of the Court in circumstances.

Now coming to the question if the parties to a dispute can validly appoint any one of them as an arbitrator, suffice it to say that under general rule, if the parties out of their free-will and consent appoint a third person knowingly fully well his relations with anyone of the party to the dispute, such arbitration agreement and the award pronounced thereupon shall not be invalid on the principles of bias. But it is a fundamental rule of natural dispensation of justice, that no person shall be a Judge in his own cause. For example, if there is a dispute only between two persons and both entered into an agreement for resolution of dispute by one of them, it is inconceivable that such an agreement shall be an arbitration agreement. Because according to the definition of the arbitration agreement in the Act, the basic object and the spirit underlying seeking the resolution of a dispute inter se the parties through arbitration is by making the reference to a natural and impartial third person. Under the law, the arbitration is in the nature of quasi-judicial forum of the parties' own choice but with all the requisites and traits, recognizing the right of every litigant party, to seek, as far as possible, the resolution of his dispute from an independent and impartial forum, This necessarily excludes a party to the dispute to be that forum, on the maxim, "nemo debet esse judex in propria causa" (no one can be a Judge in his own cause).

In the present case it was manifest from the record and the award itself, that the arbitrator was a party to the dispute, thus irrespective of the fact whether the dispute was also amongst other brother and sisters also, yet having personal interest in the cause, he could neither have been validly appointed as an arbitrator, nor could have made a valid award. Arbitrator .in the award had allocated a share to himself. This error from the bare reading of the award wag floating on the surface of the award, thus notwithstanding that the objections were not filed, the Court should, in the exercise of its suo motu jurisdiction have refused to make the award rule of the Court.

The impugned order and the award was set aside. Consequently, the judgment and decree of making the award rule of the Court had no legal value.

Fazal Din alias Mina and 2 others v. Commissioner, Peshawar Division and another PLD 1968 Pesh. 30 ref.

Ch. Khurshid Ahmed and Ch. Shahbaz Khurshid for Appellant.

Ch. Muzammal Khan and Abdul Rehman Madni for Respondents.

Date of hearing: 28th March, 2003.

P L D 2003 Lahore 531

Before Tanvir Bashir Ansari, J

Messrs FECTO CEMENT LTD. ‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Writ Petition No. 1959 of 1996, heard on 4th April, 2003.

West Pakistan Finance Act (XXXIV of 1964)‑‑‑

‑‑‑‑S. 13(1)‑‑‑Punjab Finance Ordinance (XIII of 1978). S. 5‑‑‑Province of West Pakistan (Dissolution) Order (P.O. 1 of 1970), Art. 19, ‑‑‑ Constitution of Pakistan (1962), Arts. 131 & 132‑‑‑Constitution of Pakistan (1973), Arts.268 & 199‑‑‑Constitutional petition‑‑‑Levy of Electricity Duty to the territory comprising Islamabad‑‑‑Validity‑‑‑West Pakistan Finance Act. 1964 including its charging S.13 was an existing law both for the purposes of the Province of West Pakistan (Dissolution) Order, 1970 and Art.268, Constitution of Pakistan (1973) and Federal Legislature had not brought about any adaptation, alteration, repeal or amendment in S.13(1) of‑the West Pakistan Finance Act, 1964 and the amendment of West Pakistan Finance Act, 1964 through the Punjab Finance Ordinance, 1978 had also not adversely affected its applicability to .Islamabad Capital Territory‑‑‑Incidence of the levy of Electricity Duty through the West Pakistan Finance Act, 1964, therefore, remained unaffected in its application to the Islamabad Capital Territory‑‑‑Principles.

All existing laws on the date of Dissolution of West Pakistan were to remain in operation until altered, repealed/or modified by the competent Legislatures.

The promulgation of West Pakistan Finance Act (XXXIV of 1964 was not violative of Article 131 or 132 of the Constitution of Pakistan (1962). Thus the levy of Electricity Duty with effect from the 1st day of July, 1964 in all the territories that comprised the erstwhile West Pakistan Province did not suffer from being un‑Constitutional.

The provisions of the West Pakistan Finance Act of 1964 would certainly fall within the category of "existing laws" and shall continue to remain in force in the Islamabad Capital Territory unless altered or amended by the competent Legislature.

The reference to Article 268 of the Constitution of Islamic Republic of Pakistan, 1973 would not be relevant.

The West Pakistan Finance Act of 1964 including the charging section 13 was the existing law both for the purposes of the Province of West Pakistan (Dissolution) Order, 1970 and Article 268 of the Constitution of Islamic Republic of Pakistan (1973).

That after the Province of West Pakistan (Dissolution) Order, 1970 and the coming into force of the Constitution of 1973, the appropriate Legislature in the Islamabad Capital Territory was the Federal Legislature. Federal Legislature had not brought about any adaptation, alteration, repeal or amendment in section 13, subsection (1) of the West Pakistan Finance Act of 1964.

This being the case, it was idle to rely upon the provisions of Punjab Finance Ordinance (XIII of 1978, whereby section 13, subsection (1) of the Act (XXXIV of 1964) had been substituted. The substitution of section 13. subsection (1) would be deemed to have been brought about at as far as it related to the territories which were subject to the Provincial Legislature and would not take effect in respect of the Islamabad Capital Territory. This would be in consonance with the letter and spirit of Article 268 of the Constitution of Pakistan, 1973 as well as Article 19 of the Province of West Pakistan (Dissolution) Order, 1970.

Incidence of the levy of Electricity Duty through the West Pakistan Finance Act of 1964 shall remain unaffected in its application to the Islamabad Capital Territory.

The Electricity Duty had been levied under West Pakistan Finance Act of 1964 which continued as an existing law even after the Province of West Pakistan (Dissolution) Order, 1970. The amendment of the West Pakistan Finance Act,, 1964 through the Punjab Finance Ordinance of 1978 did not adversely affect the applicability of the Finance Act to the Islamabad Capital Territory.

Hashwani Hotels Ltd. v. Government. of the Punjab and others PLD 1981 Lah. 221 distinguished.

Islamabad Club v. Punjab Labour Court No.2 and others PLD 1981 SC 81 applied.

Raja Muhammad Akram for Petitioner.

Syed Sajjad Hussain Shah, A.A.‑G. and Sh. Zamir Hussain for Respondents.

Date of hearing: 4th April, 2003.

P L D 2003 Lahore 542

Before Mian Saqib Nisar, J

MUHAMMAD YOUSAF and 4 others---Appellants

Versus

Syed MADAD ALI SHAH and 9 others---Respondents

Regular Second Appeal No.52 of 2000, heard on 16h April, 2003.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Both the parties blamed each other for not completing the contract---Property in question was sold to another party which took the plea that he was a bona fide purchaser without notice of any prior agreement to sell---Contention of the subsequent purchaser was that he had discharged his burden of proof by stating that he had no knowledge of the prior agreement to sell---Plaintiff stated that they were in possession of the property and resultantly, such fact was sufficient to put the prior purchaser to the notice of the agreement to sell---Validity---Prior agreement to sell did not mention that the possession had been delivered nor any documentary evidence had been led, to prove the fact, which could have put the subsequent vendee to notice to inquire about the nature of the possession---Findings of the Appellate Court on the issue being against the record and the law, could not sustain which were set aside and that of Trial Court restored.

Mst. Khair-un-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 and Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74 ref.

Irshad Ahmad Cheema for Appellants.

Ch. Ali Akbar Bhinder for Respondents.

Date of hearing: 16th April, 2003.

P L D 2003 Lahore 544

Before Mian Saqib Nisar, J

GHULAM NABI and others---Petitioners

Versus

ABDULLAH KHAN and others---Respondents

Civil Revision No. 1685-D of 1992, heard on 3rd March, 2003.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 5 & 7---Displaced Persons (Land Settlement) Act (XLVII of 1958), S.16 (amended)---Pre-emption suit---Claim of superior right of pre-emptors being owners in the estate---Contentions of the defendants, inter alia, were that the plaintiff did not have the superior right and that the property in question was originally an evacuee property, which had been transferred in favour of the allottee and thereafter, purchased by the vendee, and the settlement fee having not been paid to the Settlement Department, the property was not pre-emptible---Validity---Land had permanently been settled upon the transferee in view of amended S. 16 of the Displaced Persons (Land Settlement) Act, 1958 which he sold in favour of the vendees, therefore a valid sale was made in favour of the vendees which was pre-­emptible under the law---Property was validly transferred in favour of the vendees on account of sale and it did not lie in their mouth to plead that the sale was invalid, because of the non-payment of the settlement fee as the sale qua the vendees had been effected through registered deed---Civil Court, in circumstances, had the jurisdiction to decide the pre-emption action in circumstances.

Haji Sudan Muhammad and another v. Muhammad Siddiq PLD 1973 SC 347 fol.

F.A.O. No.53 of 1973 distinguished.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 7 & 5---Pre-emption suit---Claim of superior right of pre-emption by the plaintiff---Contention of the defendants that the plaintiff had failed to bring on record the Jamabandi pertaining to the period, when the decree was passed, would mean that according to such contention, the plaintiff must have alienated the property, or was divested of his ownership during the pendency of the suit---Validity---Held, in order to prove, if such an eventuality had occurred, no evidence had been led meaning thereby that on the basis of the documents on the record the plaintiff continued to be the owner in the estate at all stages relevant for the purposes of sustaining a pre­emption action.

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

----O. I, R.10---Transposition of parties---Law and principles.

Said Alam and another v. Raja Sohrab Khan and 8 others 1970 SCMR 639; Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590; Zargham Hussain Shah v. Muhammad Arshad and others 1994 CLC 70 and Mian Abdul Waheed v. Mst. Amtul Hamid and others PLD 1962 (W. P.) Lah. 114 applied.

(d) Punjab Pre-emption Act (IX of 1991)---

----S. 5---Pre-emption suit---Principle of sinker, applicability of---If a person having a right of pre-emption, who joined as a plaintiff, subsequently at any point of time, withdrew from the proceedings or due to inaction in filing appeal against the judgment and decree, which went against him, the whole suit could not be dismissed on the principle of Sinker on account of such conduct of the said person.

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

----S.115---Punjab Pre-emption Act (IX of 1991), Ss.5 & 31---Pre-emption, right of---Revision---If, a party is joined as a respondent, but is subsequently transposed, would be deemed to be a party right from the beginning--­Revision petition having been filed within time, just by transposition of some of the respondents as petitioners, the petition could not be dismissed as being out of limitation.

Khalifa Shujaat Amin for Petitioners.

Malik Abdul Wahid, Muhammad Aslam Sindhu and Mian Dilawar Mehmood for Respondents.

Date of hearing: 3rd March, 2003.

P L D 2003 Lahore 549

Before Tassaduq Hussain Jilani and Bashir A. Mujahid, JJ

KAMRAN HAIDER SHAHEEN ---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petitions Nos.486, 525, 526, 835, 463, 386, 394, 773, 665, 3870, 5363, 800, 278, 645, 4394, 284, 736 and 280 of 2003, decided on 8th May, 2003.

Prospectus of the Government Medical Colleges in the Punjab (1997-1998)---

----Prospectus of the Government Medical Colleges in the Punjab (2002-2003)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Admission in Medical Colleges in Punjab on the reserved seats for underdeveloped areas---Contentions of the petitioners were that they had appeared in the M.B.,B.S. Entry Test to the Medical Colleges in the Punjab and that their cases ought to be considered both on merit and against the quota of seats reserved for the underdeveloped areas in the light of the judgment of Supreme Court in Mst. Attiya Bibi Khan and others v. Federation of Pakistan 2001 SCMR 1161---Validity---Despite the clear verdict of the Supreme Court the Provincial Government of the Punjab did not restore the seats for the underdeveloped areas---No individual or institution could arrogate to itself the virtue of being wiser than law and flout the judgment of the Supreme Court---Plea of Government of the Punjab that the areas classified as underdeveloped mentioned in the Prospectus for the year 1997-1998 were no longer underdeveloped and that the Government was to take appropriate steps to identify the backward areas and since the Government had not declared the areas in question as underdeveloped, petitioners could not claim reservation of seats for these areas, was repelled---Held, in absence of any exercise having been carried out the areas which, as per the Prospectus for the year 1997-1998 were underdeveloped, would continue to be treated as socially and academically underdeveloped warranting reservation of seats for a period of seven years as per the judgment of the Supreme Court---High Court directed the Provincial Government of the Punjab to create 78 Fresh Seats for the areas which were declared as underdeveloped in terms of the Prospectus for the year 1997­-1998 and these seats were to be filled in on the basis of the merit list already prepared by the Department and such exercise shall be completed within a period of two weeks of the receipt of the judgment of the High Court.

Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161; Sajjad Ahmad v. Government of Balochistan through Secretary Education, Government of Balochistan, Quetta and 3 others PLD 1994 Quetta 64; Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another PLD 1990 SC 295; Huma Rafiq Khan and others v. Government of Sindh and 12 others 1988 MLD 2098; W.P. No.207 of 2002; Maulvi Shahzado Dreho v. Khalid Mahmood Soomro and others 2003 PCr.LJ 319; Ardeshir Cowasjee and 10 other's case 1999 SCMR 2883 and Civil Miscellaneous Application No. 195 of 2002 ref.

Mian Abbas Ahmad for Petitioners (in W.Ps. Nos.486, 525, 526 and 835 of 2003).

A.R. Tayyab and Haroon Tayyab for Petitioners (in W.Ps. Nos.463 and 386 of 2003).

Muhammad Qasim Khan Buzdar for Petitioner (in W.P. No.394 of 2003).

Makhdoom Ijaz Hussain Bokhari for Petitioners (in W.P. No.773 of 2003).

Riaz Karim Qureshi for Petitioner (in W.P. No.665 of 2003).

Miss Tehsin Irfan for Petitioner (in W.P. No.3870 of 2003).

Muhammad Ramzan Chaudhry for Petitioner (in W.P. No.5363 of 2003).

Nemo for Petitioners (in W.Ps. Nos.800, 278, 645, 284, 736, 280 of 2003 and 43 of 2002).

Syed Shabbarraza Rizvi, A.-G. assisted by M. Bilal Khan, Addl. A.-G. for Respondents.

Hassan Waseem Afzal, Secretary Health, Dr. Musthaq Ahmad, Addl. Secretary Health (Technical Education), Shahid Amin, Deputy Secretary Health (Medical Education), Dr. Sajjadul Hassan Director Health (Law) and Abdul Rashid, Litigation Assistant, KEMC, Lahore.

Dates of hearing: 2nd, 10th, 11th, 17th and 29th April, 2003.

P L D 2003 Lahore 559

Before Iftikhar Hussain Chaudhry, C.J. and Pervez Ahmad, J

GHULAM SHABBIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 131-J and Murder Reference No.410 of 1998, heard on 10th February, 2003.

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

-----S. 302(c)---Criminal Procedure Code (V of 1898), S.544-A---Appreciation of evidence---Grave and sudden provocation---Parties were related inter se and there was no background of enmity between them--­Deceased and sister-in-law of the accused (brother's wife), whose husband was working abroad, met each other at an isolated place and as per statement of accused, they were found, by him in compromising position and due to grave and sudden provocation caused to him by the sight of his sister-in-law being with another person, he was incensed and inflicted injuries on the head of the deceased, which appeared to .be correct version of the incident--­Defence version was more plausible and merited to be accepted--­Complainant and another witness had no business at the place of incident, there was no occasion for them to have visited that place and since they claimed to have gone there by chance, they were by all contents and measures, were chance witnesses and their testimony did not inspire confidence and had to be discarded for that reason---Accused, in circumstance, could not have been convicted under S.302(b), P.P.C.---High Court, modified the sentence of the accused from one of death under S.302(b), P.P.C. to 302(c), P.P.C. and was awarded 10 years' rigorous imprisonment with benefit of S.382-B, Cr.P.C.---Where the accused acted in grave and sudden provocation when the deceased was found to be indulging in immoral activities, such as sexual intercourse, compensation was not normally granted to legal heirs of the deceased---High Court declined to award the compensation to the heirs of the deceased in the circumstances.

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

----S.302(c)---Criminal Procedure Code (V of 1898), S.544-A---Grave and sudden provocation---Award of compensation to legal heirs of the deceased---Validity---Where the accused acted in grave and sudden provocation when the deceased was found to be indulging in immoral activities, such as sexual intercourse, normally compensation was not granted to legal heirs of the deceased.

Mrs. Erum Sajjad Gull, Defence Counsel for Appellant

Ch. Muhammad Suleman, Addl. A.-G. with S.D. Qureshi for the State.

Date of hearing; 10th February, 2003.

P L D 2003 Lahore 564

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

ASHIQ HUSSAIN alias NANNA and another---Appellants

Versus

THE STATE and another--Respondents

Criminal Appeal No. 135 of 1999 and Murder Reference No. 196 of 1999, heard on 22nd April, 2003.

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

----S. 302(b) read with S.97---Appreciation of evidence---Private defence, right of---Burden of proof---Principles---Date, the time and the place of occurrence, apart from the weapon used therein were admitted by the parties and accused had not only admitted his presence and participation in the alleged incident but had also gone on to admit that he was the one who had killed the deceased by firing at him---Accused, though had taken a plea of exercise of right of private defence but he had utterly failed to discharge the onus on him in that regard---Accused had sustained injury at the hands of the deceased at the time of occurrence but no Chhuri/dagger allegedly being carried by the deceased at the time of the occurrence had been recovered from the spot or from the person or clothes of the deceased and no witness had been produced at all to support or substantiate the assertion of the accused that he had fired at the deceased only after the deceased had assaulted the accused with a Chhuri/dagger---Held, two questions were of vital importance, i.e. firstly, as to who had done it and secondly, as to whether the person doing it had any legal or factual justification for doing it---Onus of proof regarding the first question though was always on the prosecution but the moment an accused person admitted killing the deceased under whatever circumstances, onus of the prosecution on the said general issue was automatically discharged and then the onus of proof shifted on the defence to establish through independent evidence as to what legal or factual justification the accused person had for killing the deceased---Fact which was admitted may not be proved when an accused person pleaded any general or special exception the onus was always on him to prove the circumstances in that regard through independent evidence and the Court was to presume the absence of such circumstances---Plea of the accused regarding exercise of right of private defence or exceeding such right, in view of the evidence available on the record, was not at all impressive---Conviction and sentence recorded by the Trial Court was upheld and maintained by the High Court with a modification that instead of rigorous imprisonment to be suffered by him in case of default of compensation to the heirs of the deceased he shall undergo simple imprisonment in that regard.

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

----S. 302(b)---Appreciation of evidence---Motive set up by the prosecution and stated by the complainant had not-been seriously questioned by the defence at any stage of the case---Occurrence had remained witnessed from its inception to its culmination and, thus, there was little room available for an argument that the said occurrence was a result of a chance encounter taking an ugly turn and unwittingly deteriorating into an occurrence of murder---Accused had emerged at the scene having armed himself with a pistol and had straightaway, without further ado, started tiring at the deceased---Statements by the prosecution witnesses in that regard were absolutely consistent, down to all the relevant and minute details of the main occurrence, which statement had inspired confidence of the Courts with their consistency, forthrightness and straightforwardness---Statement of said witnesses or their veracity could .not be doubted simply on the basis of a hypothetical possibility of something else happening at the spot before start of the shooting by the accused.

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

----S. 302(b)---Appreciation of evidence---Sentence---Mitigating circumstances---Plea of right of private defence---Without even a scratch on the body of the accused to support his plea of exercise of right of private defence and in the absence of any positive evidence to substantiate his hypothetical theory of a chance encounter of the parties resulting in deterioration of the situation at the spot the accused could not be extended any benefit in the matter of sentence merely on the basis of suppositions or conjectures alone---Accused had not fired at the deceased once or twice but he had fired at the deceased thrice while aiming at and hitting vital parts of the body of the deceased resulting in his death---Even if the conjectural submissions of the accused were kept in view still there was absolutely no justification available with the accused for taking an undue advantage of the situation and to kill the deceased mercilessly---Accused had never thought of maiming or incapacitating the deceased but he went only for a kill which he surely achieved and that too sadistically---Accused, in circumstances, had failed to evoke the sympathy of the Court in the matter of sentence---High Court awarded death sentences to the accused in circumstances.

Mian Aftab Farrukh for Appellants.

Ch. Muhammad Abdus Saleem and Mansoor-ur-Rehman Khan Afridi for the Complainant.

Muhammad Sohail Dar, Asstt. A.-G. with S.D. Qureshi for the State.

Date of hearing: 22nd April, 2003.

P L D 2003 Lahore 571

Before Iftikhar Hussain Chaudhry, C.J. and Parvez Ahmad, J

ASGHAR ALI ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.572 and Murder Reference No.271 of 1997, heard on 3rd March, 2003.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 148 & 149---Appreciation of evidence---Motive for the incident, as given in the First Information Report, was that a month prior to the occurrence accused had been injured as a result of quarrel of children and a case was registered against the deceased, brother of the complainant, who was on interim bail and to avenge that, the accused committed the offence--­Medical evidence contradicted the ocular account---Incident had taken place in altogether different manner---Investigatory evidence showed that the deceased was tired by the person, who could not be arrested in the case nor was arrayed as one of the accused in the case ---Investigatory opinion was based on material which taking the overall view of the entire material on record, could be believed as the same was an opinion, which was not motivated and fitted more adequately in the ambience of the case than the prosecution case itself---Enmity between the parties started with fight over the children and certain trivial incidents had also taken place but that aspect of the matter would not lead to the conclusion that the accused had launched a pre-concerted attack on the complainant party, including the deceased--­Prosecution had planned a story in order to involve a large number of persons in the case---Role ascribed to the accused was not established, rather same was contradicted by the medical evidence---Evidence of recoveries did not advance the case of prosecution in any manner---High Court, while extending benefit of doubt to the accused, allowed the appeal of the accused and his conviction and sentence by the Trial Court was set aside and he was acquitted of the charges.

Sardar Muhammad Latif Khan Khosa for Appellant.

Ms. Irram Sajjad Gull for the State.

Muhammad Nasrullah Warraich for the Complainant.

Date of hearing; 3rd March, 2003.

P L D 2003 Lahore 576

Before Mian Saqib Nisar, J

ABDUL GHAFOOR and 8 others---Petitioners

Versus

MUHAMMAD AKRAM and 3 others---Respondents

Civil Revision No.887-D of 1997, heard on 24th March, 2003.

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

----S. 42---Suit for declaration assailing the genuineness of general power of attorney in favour of defendant on the basis of which, he had further alienated the suit-land to the other defendants---Land in question was owned by the plaintiffs and allegedly defendant had sold the plots of said- land in favour of other defendants on the basis of a forged and fabricated document of power of attorney---Plaintiffs, in order to discharge the burden about the forgery of the document, had examined themselves and had denied that they had ever executed the document or appeared before the sub-Registrar or Commission for registration---Defendants, in order to prove the document to be genuine had examined Moharrer from the office of Sub-Registrar, who had simply brought the record of the Sub-Registrar to depose that it had been registered in the office---Local Commissioner, allegedly appointed by the Sub-Registrar, in his cross-examination had stated that he did not know the executant of the power of attorney personally; that he was taken to the office of a property dealer, where some men and women were present and he reposing confidence in the person who was allegedly made attorney through that document and considering those persons to be genuine, got the thumb­-impressions of the executants on the power of attorney; that he did not see the identity cards of all the executants, because all of them did not possess those cards, only three had the identity cards and that he did not go to houses of the executants for the purpose of getting their signatures and thumb­impressions---Statement of the Local Commissioner thus had not proved that the power-of-attorney had been executed by the plaintiffs and their signatures and thumb-impressions were affixed in the genuine proceedings by the local commission---None of the marginal witnesses had been produced to prove the document in question---No witness had been produced, who had identified the plaintiffs at the time of proceedings before the local commission---Defendants had not even moved any application before the Court for seeking comparison of the thumb-impressions or signatures of the plaintiffs through any Handwriting Expert/Fingerprint Expert; thus on the basis of such evidence, the view of the Appellate Court that the power of attorney had been duly proved was the result of sheer misreading and non-­reading of the record, resultantly the same was set aside by the High Court in revision.

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

----S. 41---Transfer by ostensible owner---Purchaser could set out the plea of bona fide act, if the transfer in his favour had been made with the express or implied consent of a person interested in the immovable property by a person who was ostensible owner of such property and had transferred the same for consideration---Person who had sold the property, in the present case, was not the ostensible owner of the property, rather was acting as attorney for the owners and there was no express or implied consent by the owners in his favour enabling him to sell the property---Power of attorney on the basis of which, the said person had represented the seller as his agent had already been determined to be a forged document and therefore having purchased the property on the basis of said power-of-attorney from an unauthorized person, the sales were absolutely void, resultantly the purchasers could not set out a plea of bona fide purchaser---Judgments of both the Courts and decree being invalid and based upon misreading and non-reading of the record and ignorance of law were set aside by the High Court in revision with the result that suit of the owners of the land stood decreed.

Ras Tariq Ch. for Petitioners.

Jehangir A. Jhoja for Respondents.

Date of hearing: 24th March, 2003.

P L D 2003 Lahore 581

Before Muhammad Sair Ali, J

MUSHTAQ HUSSAIN and others---Petitioners

Versus

Chaudhary MUHAMMAD BAKHSH (ADVOCATE) and 2 others---Respondents

Writ Petition No.24129 of 2000, heard on 18th April, 2003.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 17---Civil Procedure Code (V of 1908). O. IX, Rr.13 & 12(2)--­Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court---Scope---Question of fact---Question of law---Application for setting aside the ex parte eviction order by the Rent Controller duly confirmed by the Appellate Authority was dismissed by both the said forums---Validity---High Court, while deciding a Constitutional petition under Art.199 of the Constitution could not go into a question of fact like that of difference of addresses, which was neither raised nor dealt with by the Tribunals below---Present case, however, proceeded on extraordinary premises; wherein inquiry into the question of fact was effectively blocked and shrouded in questions of procedural intricacies by the respondent, a Senior Advocate of the High Court adept in the matters of procedural law and technical polemics---Question of fact regarding different addresses, circumstances, required to be settled in an inquiry by the Rent Controller through framing of issues and taking evidence but non-framing of issues and non-holding of inquiry on question of fact raised in petitioner's application for setting aside ex pane order was admittedly a question of law---Petitioners were, therefore, within their right to either further particularize their pleadings in the application or to substantiate allegations of fraud through presenting evidence thereupon---High Court, exhaustively noting the facts and implications of the whole matter pointed out the questions of facts having bearing upon the questions of law involved in the present case and in order to do complete justice accepted the Constitutional petition holding that High Court was not barred from taking notice of the said questions--­Impugned orders of the Rent Controller and the Additional District Judge were declared to be without lawful authority and of no legal effect---Matter was remitted back to the Rent Controller for re-decision of petitioner's application for setting aside ex parte ejectment, which shall be deemed to be pending; Rent Controller after obtaining reply of the respondent would frame issues, record evidence of the parties and decide the same in accordance with law---Executing Court shall also decide pending objection petition of one of the petitioner in accordance with law, if so deemed appropriate upon decision of application for setting aside the ex parte ejectment order and during pendency of the said application, petitioners shall not be dispossessed from the suit property.

M. Iqbal for Petitioners.

Respondent No. 1 in person.

Date of hearing; 18th April, 2003.

P L D 2003 Lahore 588

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

TAJ MUHAMMAD ---Petitioner

Versus

JUDGE, ANTI-TERRORISM COURT and another---Respondents

Writ Petition No.6399 of 2003, heard on 22nd May, 2003.

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

----Ss. 353/186, 379, 337-A(ii) & 337-L(2)---Electricity Act (IX of 1910), S.39-A---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 23---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- "Terrorism' Determination of jurisdiction of the Court constituted under Anti-Terrorism Act, 1997---Factors---Question of jurisdiction of the Special Court was to be considered with reference not only to the allegations contained in the F.I.R. but also with reference to the facts of the case emerging during the investigation of such a case---Contention of the accused was that the allegations contained in the F.I.R. and the facts of the case emerging during the investigation of the case clearly showed that there was no "terrorism' involved in the case and, therefore, a Court constituted under the Anti-­Terrorism Act, 1997 had no jurisdiction to try the case and sought transfer of his case from the Anti-Terrorism Court under S.23 of the Act to an ordinary Court under normal law---Validity---Minor and not so serious incident of an altercation and a push, shove or scuffle had taken place at the spot apparently with motivation other than bona fide, which had been given a colour by the complainant party of a graver matter involving "terrorism"--­Factors available on the record, in the present case, were prima facie convincing that the complainant party had resorted to quite a bit of exaggeration in the F.I.R. and an attempt had been made therein to bolster and enhance the seriousness of the incident so as to attract the jurisdiction of a Court constituted under the Anti-Terrorism Act, 1997---Application of the accused under S.23, Anti-Terrorism Act, 1997 was accepted by the High Court in circumstances, and it was ordered that the case of the accused be tried by an ordinary Court under the normal laws---Judge, Anti-Terrorism court was directed to transmit the record of the case to the concerned District Judge forthwith and latter shall entrust the trial of the case to any Court of competent jurisdiction.

Allah Din and 18 others v. The State and another 1994 SCMR 717; Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others PLD 2001 SC 169 and Azhar Hussain and others v. Government of Punjab and others 1992 PCr.LJ 2308 ref.

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

----Ss. 6 & 2---"Terrorism"---Definition---Not every disruption of or interference with the duties of a public servant or every coercion, intimidation or violence against a public servant which attracts the definition of "terrorism" contained in S.6, Anti-Terrorism Act, 1997---Provisions of S.6(2)(1), (m) and (n) of the said Act speak of "serious interference"; "serious disruption": "serious coercion or intimidation" or "serious violence" against a public servant---Word "serious" has been defined by S.2(w) of the said Act to mean "dangerous to life or property "---Where facts of the case emerging during the investigation, showed that apparently nothing had been done by the accused which could be termed as dangerous to life or property, application of provisions of S.6(2)(1), (m) & (n) to the case appeared to be quite suspect---Alleged interference with or disruption of the duty of the public servants involved in the present case or coercion or intimidation of or violence against such public servants being not "serious" enough to attract the definition of "terrorism" as contained in S.6 of the Act, Court constituted under the Anti-Terrorism Act, 1997 had no jurisdiction to try the case.

Haris Abdullah v. The State 1999 YLR 643 ref.

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

----S. 7---Provisions of Anti-Terrorism Act, 1997 to be strictly construed and the benefit if any, arising in that regard had to be extended to the accused.

Haris Abdullah v. The State 1999 YLR 643 ref.

Abdul Razzaq Younas for Petitioner.

Muhammad Sohail Dar. Assn. A.-G. for the State.

Mansoor-ur-Rehman Khan Afridi for the Complainant.

Date of hearing: 22nd May, 2003.

P L D 2003 Lahore 593

Before Tassaduq Hussain Jilani and Bashir A. Mujahid, JJ

Ch. ZULFIQAR ALI ---Petitioner

Versus

CHAIRMAN, NAB and others---Respondents

Criminal Revisions Nos.888 of 2002, 124 and 234 of 2003, decided on 12th May, 2003.

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

----S. 32(c) [as inserted by National Accountability (Amendment) Ordinance (CXXXIII of 2002)]---Provisional Constitution Order [1 of 1999], Art.5-A--­Constitution of Pakistan (1973), Art.89---Contention was that the Amending Ordinance having not been placed before the National Assembly within a period of four months of its promulgation had elapsed---Validity---Provision of Art.5-A of the Provisional Constitution Order, 1999 having specifically declared that no order shall be subject to any limitation of time, it could not be justifiably contended that the Ordinance in question had lapsed on account of the time framework provided in Art.89 of the Constitution---Amending provision, therefore, was part of the National Accountability Ordinance, 1999 in circumstances.

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

----S. 32(c) [as inserted by National Accountability (Amendment) Ordinance, (CXXXIII of 2002)]---Revision against interlocutory order ---Maintainability­ --Order assailed in there vision, in the present case, was passed much before the promulgation & the Amending Ordinance inserting S.32(c) in the National Accountability Ordinance, 1999 by virtue of which, revision against interlocutory order passed by the Accountability Court had been barred, therefore the right of revision which had accrued, could not have been taken away retrospectively---Revision against the order impugned was maintainable in circumstances.

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

----Preamble, Ss.9, 5(a), 5(o) & 20---Word "person" as used in S.9, National Accountability Ordinance, 1999 has been used in the general sense and includes "every person"---Contention that person as used in S.9 of the Ordinance only refers to a person who abets the offence with a holder of public office, is not tenable as the offence of abetment has been separately dealt with in S.9(xii) of the Ordinance ---Principles--[Haji Kabeer Khan v. The State Criminal Appeal No.5 of 2001 dissented from].

In the ordinary use, the word "or" is disjunctive that marks an alternative which generally corresponds to the word "either". The word "person" has been used in the general sense and includes every person. It is one of the fundamental rules of construction that the general words should be given a general construction unless the statute in some manner reveals that the legislative intent was otherwise. There is no contrary intent. A close examination of section 9, would show that with reference to subject-matter there are three kinds of offences. Those kinds are as under:- -

(i) Offences which are committed by holder of public office specific;

(ii) Offences which are committed by the holder of a public office alongwith any other person and in which the latter is also liable;

(iii) Offences committed by persons who do not hold any public office.

The argument that the "person" used in section 9, only refers to a person who abets the offence with a holder of public office, is not tenable as the offence of abetment has been separately dealt with in clause (xii) of section 9.

Even in section 10 of .the NAB Ordinance which relates to punishments, "the holder of public office" and "person" have been separately described.

Similarly, the legislative intent of making it applicable to all persons is clear from a reading of section 20 of the Ordinance.

Khan v. The State Criminal Appeal No.5 of 2001 dissented from.

Crawford's Interpretation of Laws; Ch. Amir Sher Ali v. The State Criminal Appeal No.753 of 2001 and Abdul Aziz Memon v. The State Appeal No.58 of 2002 ref.

(d) Interpretation Statutes---

----Word "or" is disjunctive that marks an alternative which generally corresponds to the word either.

Crawford’s Interpretation of Laws ref.

(e) Words and Phrases---

----"Or" is disjunctive that marks an alternative which generally corresponds to the word either.

Crawford’s Interpretation of Laws ref.

(f) Precedent---

---- Judgment rendered on concession given by a counsel is not law declared.

Criminal Petitions Nos.54, 55 and 96 of 2002 and Municipal Corporation of Delhi v. Gurnam Kaur AIR 1989 SC 38 quoted.

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

----S. 9---Holder of a public office can be tried alongwith an offence which may have been committed when he was not holder of a public office as there is no bar in any law and an ordinary person can be tried under the National Accountability Ordinance, 1999.

(h) Constitution of Pakistan (1973)---

----Art. 13(a)---Criminal Procedure Code (V of 1898), 5.403---Double punishment---Trial of the same charge would be violative of Art. 13(a) of the Constitution and S.403, Cr.P.C.

The State v. Hadi Bakhsh 1981 SCMR 1008; Sherin Bacha and others v. Namoos Iqbal and 3 others PLD 1993 SC 247 and Abul Hossain Sana v. Suwalal Aqarwala and another PLD 1962 SC 242 ref.

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

----Ss. 403 & 249---Order passed after considering material placed before the Court at initial stage when no evidence had been recorded would not strictly be an order of acquittal in terms of S.403, Cr.P.C. which mandates that "the dismissal of a complaint, the stopping of proceedings under S.249. Cr.P.C. or the discharge of the accused was not acquittal for the purposes of S.403, Cr.P.C."

Sheikh Ziaullah for Petitioners.

Jawaid Shaukat Malik for the NAB.

Sher Zaman Khan, Dy. A.-G. and M. Bilal Khan, Addl. A.-G. for the State.

Dates of hearing: 28th September; 28th October; 26th November; 3rd, 10th, 16th December, 2002; 27th January: 25th February: 4th and 11th March, 2003 (in Criminal Revision No.888 of 2002): 4th, 11th, 19th, 25th March; 17th and 22nd April, 2003 (in Criminal Revision No. 124 of 2003; 31st March; 7th, 15th and 22nd April; 2003 (in Criminal Revision No.234 of 2003.

P L D 2003 Lahore 615

Before Mian Saqib Nisar, J

Malik BASHIR AHMAD KHAN and another---Petitioners

Versus

QASIM ALI and 12 others---Respondents

Writ Petition No. 18374 of 2002, decided on 9th April, 2003.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Suit against the only defendant who was dead at the time of institution of the suit---Nullity in the eyes of law and could not be revived by impleading the legal heirs of the deceased defendant---Plaintiff, in such a situation, subject to law, had the option to bring a fresh suit against the heirs on the basis of the same cause of action---Such rule, however, would not be applicable, where the suit had been instituted against more than one defendants and one of them was dead at the relevant time and suit in that situation would not be nullity in totality, but would be validly instituted against the living defendants, and defective qua the deceased party, which defect would be curable by the plaintiff, bringing on record the heirs of the deceased defendants.

Capt. Shahid Saleem Lone and others v. Ata-ur-Rehman and others 1985 CLC 2555; Hafiz Brothers (Pvt.) Ltd. and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. 2001 SCMR 1; Nabi Bakhsh v. Malik Muhammad Akram Settlement Commissioner and others PLD 1969 Lah. 880; Muhammad Yousaf and 3 others v, Khan Bahadur through Legal Heirs 1992 SCMR 2334; Prim Pala Mul-Nardin Mal v. Fauja Singh AIR 1926 Lah. 153; Roop Chand v. Sardar Khan and others AIR 1928 Lah. 359; Ghulam Qadir Khan v. Ghulam Hussain and others AIR 1937 Lah. 794 and The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82 ref.

Muhammad Ghani for Petitioners.

Malik Noor Muhammad Awan for Respondent No. 1.

Nemo for the Respondents Nos. 2 to 11.

ORDER

The petitioners, alongwith Muhammad Tawakkal, the predecessor­-in-interest of the respondents Nos.2 to 11, purchased the la4d measuring 76 Kanals and 4 Marlas, situated in Chak No. 128/GB, Tehsil Chiniot, District Jhang, from Mst. Shah Begum, through a sale mutation sanctioned on 21-12-1998. Respondent No.1, on 13-1-1999, brought. a suit for pre­emption, challenging the above sale, in which, the petitioners and Muhammad Tawakkal, were impleaded as the defendants. The petitioner/defendants moved an application under Order I, Rule 10, C.P.C, seeking the deletion of the name of Muhammad Tawakkal from the array of the parties, on the ground that Tawakkal, had died on 7-8-1997 i.e. before the institution of the suit, therefore, the suit against a dead person was nullity in the eyes of law; on this application, the learned Civil Judge, through the impugned order dated 23-1-2001, deleted the name of Muhammad Tawakkal, but at the same time, directed the plaintiff to implead the legal heirs of the deceased defendant. It is this second part of the order by which, the petitioners felt aggrieved and was challenged in revision, but without any success. Hence this petition.

1. Learned counsel .for the petitioners, by relying upon Capt. Shahid Saleem Lone, etc. v. Ata-ur-Rehman etc. (1985 CLC 2555), and Hafiz Brothers (Pvt.) Ltd. and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. (2001 SCMR 1), states that the suit, instituted against a dead person is nullity in the eyes of law, and therefore, the same should have been dismissed.

2. To controvert the above, the learned counsel for respondent No. 1, has argued that the suit against the only defendant, who was dead at the time of the institution of the suit, may be nullity in the eyes of law and any decree passed, without impleading the legal heirs of the deceased defendant tray suffer from the same vice. But, where, there are more than one defendants and one of them had died prior to the filing of the suit, the suit, at the most qua the deceased defendant, was defective, which defect could be cured by bringing on record his legal heirs, and the suit in such an eventuality was not a nullity in toto. In support of his contentions, he has relied upon Nabi Bakhsh v. Malik Muhammad Akram Settlement Commissioner and others (PLD 1969 Lahore 880), and Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs (1992 SCMR 2334).

3. I have heard the learned counsel for the parties. Obviously, if a suit has been filed against the only defendant, who was dead at the time of the institution, such suit shall be still born, non-existent, and a nullity in the eyes of law, therefore, it could not be merely defective and thus, could not be revived by impleading the legal heirs of the deceased defendants. The plaintiff, in such a situation, subject to law, may have the option to bring a fresh suit against the heirs on the basis of the same cause of action. But, this rule shall not be applicable in a case, where the suit has been instituted against more than one defendants and one of them was dead at the relevant time. The suit shall not be nullity in totality, but would be validly instituted against the living defendants, however, it would be defective qua the deceased party, which defect shall be curable by the plaintiff, bringing on record the heirs of the deceased defendant. To support this view, reliance can be placed on the, following judgments:--

Prim Pala Mul-Narain Mal v. Fauja Singh (AIR 1926 Lahore 153).

Roop Chand v. Sardar Khan and others (AIR 1928 Lahore 359).

Ghulam Qadir Khan v. Ghulam Hussain and others (AIR 1937 Lahore 794).

Nabi Bakhsh v. Malik Muhammad Akram, Settlement Commissioner and others (PLD 1969 Lahore 880), and

The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82).

Resultantly, in the facts and circumstances of the case, the learned courts below have rightly proceeded to allow the impleadment of legal heirs of the deceased defendant. This petition thus, has no force and is hereby dismissed.

M.B.A./B-143/L Petition dismissed.

P L D 2003 Lahore 617

Before Sayed Zahid Hussain, J

SAID alias KHURSHID and others---Petitioners

Versus

DEPUTY COMMISSIONER, SETTLEMENT DEPARTMENT and others--Respondents

Writ Petition No. 175-R of 1987, heard on 22nd April, 2003.

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

----Art. 199---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2---Constitutional petition---Maintainability---Locus standi to file Constitutional petition---Contention of the petitioners was that the Deputy Commissioner/Collector, acted wholly without jurisdiction in the matter inasmuch as no such proceedings could be entertained/undertaken by him nor any such order could be passed as he had no such power either under the repealed Evacuee Laws or under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Validity---Petitioners were party in the initial round of litigation (in a Constitutional petition before the High Court); were also party before the Supreme Court and even Collector/Deputy Commissioner---Locus standi of the said petitioners to maintain Constitutional petition qua the impugned order, could not be questioned.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.9, 10 & 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Collector of the District on a Mukhbari application with allegation therein that the allotment had been secured through forged, fraudulent and bogus means could not pass an order cancelling the allotment made under a law which had its own statutory hierarchy---Said functionary neither found any such place or enjoyed power under the Displaced Persons (Land Settlement) Act, 1958 (repealed) nor under the Evacuee Property and Displaced Persons (Laws) Repeal Act, 1975 and thus acted wholly without jurisdiction in annulling the allotment---Total lack of jurisdiction could not be condoned nor countenanced---Assumption of jurisdiction, unwarranted by law could be corrected by the High Court under Art. 199 of the Constitution---Order passed by the Collector being patently without jurisdiction was not sustainable in law and was so declared---Principles.

Section 9 of the Displaced Persons (Land Settlement) Act, 1958 enabled the Central Government to appoint a Chief Settlement Commissioner, Settlement Commissioners, Additional Settlement Commissioners, Deputy Settlement Commissioners and Assistant Settlement Commissioners, who were to perform functions and duties assigned to them under the Act. Legality or otherwise of allotment could be examined by the designated statutory authority under sections 10 and 11 of the Act. Evacuee Laws (including this Act) were repealed with effect from 1-7-1974 by Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975) which provides for the appointment of officers, notified by the Provincial Government for the disposal of pending proceedings contemplated by section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975). The Collector of the District neither found any such place or enjoyed power under the repealed law i.e. Displaced Persons (Land Settlement) Act, 1958 nor under the repealing law i.e. Act XIV of 1975. Of course he had the authority and power to make correction in the Revenue Record but that would have been a consequential step pursuant to an order passed by the competent Authority having jurisdiction in the matter. No such order had been passed either by any authority, in the settlement hierarchy under the repealed law or the Notified Officer after the repeal of the evacuee laws. Validity or otherwise of an action/order is determinable with reference to the jurisdiction of the authority.

Collector of the District, in circumstances, thus acted wholly without jurisdiction in annulling the allotment. Total lack and want of jurisdiction could not be condoned nor countenanced. Assumption of jurisdiction, unwarranted by law, can be corrected by the Court in writ jurisdiction.

Order passed by the Collector thus being patently without jurisdiction, was not sustainable in law and was thus declared as such.

(c) Jurisdiction----

---- Want of jurisdiction is a radical defect not curable by acquiescence or consent of the parties concerned---Principles.

Want of jurisdiction is regarded as a usurpation of power unwarranted by law. Consequently, it is considered so radical a defect that it cannot be cured by the acquiescence or consent of the parties concerned. Jurisdiction does not originate in the consent of the parties and cannot be re-established, where it is absent, by such consent or acquiescence. Being independent of the parties, behaviour, want of jurisdiction can be raised by any person wherever the resulting act is relied upon.

A Court cannot adjudicate upon a subject-matter which does not fall within its province as defined or limited by law, this jurisdiction may be regarded to be essential, for jurisdiction over the subject-matter is a condition precedent to the acquisition of authority over the parties and if a Court has no jurisdiction over the subject-matter of the controversy, consent of the parties cannot confer such jurisdiction and a judgment made without jurisdiction in such a case is absolutely null and void.

Jurisdiction and Illegality by Rubinstein, p.194; Administrative Law, 8th Edn. (2000), p.38 by Sir William Wade and Jurisdiction and Judicial Review p.72 by Justice Fazal Karim quoted.

(d) Jurisdiction---

---- Lack of jurisdiction---Factors.

Lack of jurisdiction may arise in many ways. There may be an absence of those formalities or things which are conditions precedent to the Tribunal having any jurisdiction to embark on an inquiry. Or the Tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the Tribunal may depart from the rules of natural justice, or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and failed to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity.

Administrative Law, 8th Edn.(2000), p.38 by Sir William Wade quoted.

(e) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2(2)---Pending cases---Case which was not pending before any forum in terms of S. 2(2) of the Act would not be treated as such under the orders of any Authority or Court arising in consequence of the proceedings initiated subsequent to the repeal of evacuee laws---If an authority had no jurisdiction in the matter under the law, the jurisdiction could not be conferred on said authority by an order of the Court.

Mst. Badshah Begum and others v. The Additional Commissioner (R), Lahore Division and others 2003 SCMR 629 fol.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Defect of jurisdiction apparent on the face of the record would at once attract the certiorari jurisdiction of the High Court.

Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 ref.

(g) Jurisdiction---

---- Total lack of jurisdiction could not be condoned nor countenanced.

Muhammad Saleem Shahnazi for Petitioners.

M. Z. Khalil for Respondent No. 1.

A.R. Shaukat for Respondents Nos. 2 to 11.

Respondents Nos. 12 to 16: Ex Parte.

Ch. Ata Ullah for Respondents Nos. 17 to 19.

S.M. Masood and Aurangzeb Mirza for Respondent No.20.

Date of hearing: 22nd April, 2003.

JUDGMENT

Order dated 6-5-1987, passed by respondent No. 1 whereby allotment existing in the name of Mehrban-ud-Din, was declared as bogus and was annulled, has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Since want of jurisdiction in passing the impugned order is the primary ground, the back ground in which the respondents has passed the order, is stated briefly, land allotted at Khata Nos.266 and 267 of RL-II, Village Durgapur Tehsil and District Gujranwala became subject of scrutiny on a Mukhbari application filed by Mehrban-un-Din etc. as a consequence of which it was cancelled vide order dated 13-1-1977 and resumed. W.P. No.413-R of 1977 was filed against that order by the aggrieved parties which petition was dismissed on 21-4-1986. The said judgment was maintained by the Hon'ble Supreme Court of Pakistan dismissing C.P. No.116-R of 1986 on 21-5-1986. On 4-3-1977 Mehrban-ud-Din had obtained allotment of the resumed land at Khata No.280 Vide an application filed on 3-7-1986 by Abdul Ghafoor and other successors of Muhammad Umar (respondents herein) the allotment of Mehrban-ud-Din was 'questioned which culminated into impugned order dated 6-5-1987 passed by respondent No. 1. It was held by him that Mehrban-ud-Din had secured allotment through forged fraudulent and bogus means and ordered the correction of the Revenue Record accordingly.

1. The learned counsel or parties have been heard. There is an objection to locus standi of the petitioners in maintaining the petition whereas it is contended by the learned counsel for the petitioners that respondent No.1 i.e. the Deputy Commissioner/Collector, Gujranwala acted wholly without jurisdiction to the matter inasmuch as no such proceedings could be entertained undertaken by him nor any such order could be passed as he had no such power either under the repealed evacuee laws or under Act XIV of 1975.

2. Insofar as the objection as to the maintainability of the petition and locus standi of the petitioner is concerned, suffice it to observe, that the petitioners herein, were party in the initial round of litigation i.e. Writ Petition No.413-R of 1977, they were party before the Hon'ble Supreme Court and even before respondent No. 1. Their locus standi to maintain the petition equal the impugned order, cannot be questioned. Objection about their locus standi thus is not tenable and is repelled.

3. Undisputedly the matter had earlier been up to the Apex Court, where Civil. Petition No. 116-R of 1986 was dismissed maintaining the judgment dated 21-4-1986, passed in Writ Petition No.413-R of 1977. Even if it be assumed that allotment of Meharban-ud-Din could be scrutinized in view of the allegations qua the same, the vital question is whether respondent No. 1 (Collector/Deputy Commissioner) could assume such a power and jurisdiction.

4. From the perusal of the material on the record it is evident that application dated 2-7-1986, was addressed to the Deputy Commissioner/Collector Gujranwala, which on its presentation was taken up by respondent No. 1 on 3-7-1986 and record was called for ordering the maintenance of status quo in the meanwhile. The order which was passed on 6-5-1987 in pursuance of the said application also given description of respondent No.1 as Deputy Commissioner/Collector of the District. In the report and comments submitted by respondent No.1 also has been stated that the order was passed by him in the "capacity as Collect of the District". It is thus to be seen as to whether the Collector could pass such an order cancelling the allotment made under a law which had its own statutory hierarchy. Section 9 of the Displaced Persons (Land Settlement) Act, 1958 enabled the Central Government to appoint a Chief Settlement Commissioner, Settlement Commissioners, Additional Settlement Commissioners, Deputy Settlement Commissioners and Assistant Settlement Commissioners, who were to perform functions and duties assigned to them under the Act. Legality or otherwise of allotment could be examined by the designated statutory under sections 10 and 11 of the Act. Evacuee Laws (including this Act) were repealed with effect from 1-7-1974 by Evacuee Property and Displaced Persons Laws (Repeal) Act 1975 (Act XIV of 1975) which provides for the appointment of officers, notified by the Provincial Government for the disposal of pending proceedings contemplated by section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act 1975 (Act XIV of 1975). The Collector of the District neither found any such place or enjoyed power under the repealed law i.e. Displaced Persons (Land Settlement) Act, 1958 nor under the repealing law i.e. Act XIV of 1975. Of course he had the authority and power to make correction in the Revenue Record but that would have been a consequential step pursuant to an order passed by the competent authority having jurisdiction in the matter. No such order had been passed either by any authority, in the settlement hierarchy under the repealed law or the Notified Officer after the repeal of the evacuee laws: It may be observed that validity or otherwise of an action/order is determinable with reference to the jurisdiction of the authority. "Jurisdiction" as it is commonly understood means, an authority .to decide. An order outside jurisdiction is regarded as invalid, null and void. At page 194 of Jurisdiction and Illegality by Rubinstein, this aspect or jurisdiction has been sated as follows:--

"Want of jurisdiction is regarded as a usurpation of power unwarranted by law. Consequently, it is considered so radical a defect that it cannot be cured by the acquiescence or consent of the parties concerned. Jurisdiction does not originate in the consent of the parties and cannot be re­established, where it is absent, by such consent or acquiescence. Being independent of the parties, behaviour, want of jurisdiction can be raised by any person wherever the resulting act is relied upon." Likewise Sir William Wade in his celebrated work on Administrative Law, Eighth Edition (2000) highlights this subject at page 38 "Lack of jurisdiction may arise in many ways. There may be an absence of those formalities or things which are conditions precedent to the Tribunal having any jurisdiction to embark on an inquiry. Or the Tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the Tribunal may depart from the rules of natural justice, or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity. " Justice Fazal Karim in Jurisdiction and Judicial Review at page 72 has dealt with this aspect as under:--

"A Court cannot adjudicate upon a subject-matter which does not fall within its province as defined or limited by law, this jurisdiction may be regarded to be essential, for jurisdiction over the subject-matter is a condition precedent to the acquisition of authority over the parties and if a Court has no jurisdiction over the subject-matter of the controversy, consent of the parties cannot confer such jurisdiction and a judgment made without jurisdiction in such a case is absolutely null and void." The legal position obtaining on the subject has also been stated quite recently by the Hon'ble Supreme Court of Pakistan in Mst. Badshah Begum and others v. The Additional Commissioner, Lahore Division and others (2003 SCMR 629), wherein it has been held that "There can be no deviation from the legal position that a case which was not pending before any forum in terms 8f subsection (2) of section 2 of the repealed Ordinance, 1974 (Act XIV of 1975) would not be treated as such under the orders of any authority or Court arising in consequence to the proceedings initiated subsequent to the repeal of evacuee laws and thus despite remand of the case to the Notified Officer by the High Court, the limit of his power under the law would not be extended to the cases which had attained finality under the statute. It is settled that if an authority has no jurisdiction in the matter under the law, the jurisdiction cannot be conferred on said authority by an order of the Court". That was a case in which the Notified Officer had assumed jurisdiction in the matter after the repeal of the law and his order was struck down whereas in the instant case respondent No. 1 was not exercising even the powers of at Notified Officer and passed order in the capacity of a "Collector of the District". It is not claimed or professed that he had exercised any other power or jurisdiction except that of Collector of the District. He thus acted wholly without jurisdiction in annulling the allotment by virtue of order dated 6-5-1987. It may be observed that total lack and want of jurisdiction cannot be condoned nor countenanced. Assumption of jurisdiction, unwarranted by law, can be corrected by the Court in writ jurisdiction. In Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450), it was held that "These defects of jurisdiction are apparent on the face of the record which in my opinion would at once attract certioriari jurisdiction of the High Court. I have not the slightest doubt that if respondent No.2 proceeds to hear the complaint of respondent No. 1, the proceedings will be wholly without jurisdiction and, therefore, a nullity. "

Order passed by respondent No. 1 on 6-5-1987, thus being patently without jurisdiction, is not sustainable in law and is thus declared as such.

No order as to costs.

M.B.A./S-646/L Petition accepted.

P L D 2003 Lahore 627

Before Khawaja Muhammad Sharif, J

Mst. NAWABZADI---Appellant

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 of 2003 to Criminal Appeal No.487 of 2001, decided on 21st April, 2003.

Criminal Procedure Code (V of 1898)---

----Ss 426(2-B) & 497(1)---Suspension of sentence pending appeal--Release of accused on bail---Conditions laid down in S.426(2-B), Cr.P.C.---Section 426, Cr.P.C. is guided by the first proviso to S.497(1), Cr.P.C.---Where the petitioner had fulfilled the two conditions mentioned in S.426(2-B), Cr.P.C. viz. that her petition for leave to appeal before the Supreme Court had been admitted and the High Court had concluded that she. being a woman her case was covered by first proviso to S.497(1), Cr.P.C., her sentence was suspended by the High Court subject to furnishing of bail bonds as specified.

PLD 1955 Sindh 68; AIR 1940 Lah. 203; AIR 1945 PC 94 and AIR 1960 Andh. Pra. 622 ref.

M. Asghar Khan Rokhari for Appellant.

Malik Muhammad Suleman for the Complainant.

Muhammad Hanif Khatana. Addl. A.-G. for the State.

P L D 2003 Lahore 629

Before Ch. Ijaz Ahmad, Mian Saqib Nisar and Mian Hamid Farooq, JJ

KHALID MAHMOOD and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and 74 others---Respondents

Writ Petitions Nos.5437 of 1993, 9510 and 5865 of 1996, decided on 18th April, 2003.

Constitution of Pakistan (1973)---

----Arts. 153, 154, 184(1), 199 & Fourth Sched., Federal Legislative List, Part II, Item No. 3--- Transfer of Managed Establishments Order [P.O. No.12 of 1978], Preamble [as amended by Transfer of Managed Establishments (Amendment) Act, (XXII of 1991)]--- Economic Reforms Order [P.O. No. 1 of 1972], Preamble--- Privatization Commission Ordinance (LII of 2000), Ss. 22 & 28--- Constitutional petition—Privatization of the Assest Projects/Establishments of the Federation and Statutory Bodies owned and controlled by the Federation allegedly without prior consultation with proper Bodies viz. the Council of Common Interests and the National Economies Council---Locus standi to file Constitutional petition under Art. 199 of the Constitution before the High Court against said action of the Federation ---Validity--­Articles 153, 154 & 184(1) of the Constitution prescribe specific machinery to harmonize the system of different Governments i.e. to resolve the disputes between the Federation and Provinces or between the Provinces inter se--­Constitution prescribes a specific mode for resolution of disputes qua the matters prescribed in Arts. 153, 154 & 184(1) of the Constitution---Articles 153, 154 & 184(1) of the Constitution are Code in themselves, therefore, Provinces or Federation only has the right to voice against the action taken in violation' of Arts. 153 & 154 of the Constitution---If an action has been initiated by any of the Governments without adopting the procedure highlighted in the said Articles of the Constitution then in that case alone either of the Governments has the right to agitate the matter before the competent body or before the Supreme Court, and the fact is that none of the Provincial Governments has come forward to oppose privatization of the Establishments/Projects in question---Petitioner, in circumstances, lacks locus standi to raise the controversy' before the High Court by invoking the extraordinary jurisdiction under Art. 199 of the Constitution.

Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473; Messrs Gadoon Textile Mills and others v. WAPDA and others 1997 SCMR 641; Khalid Malik and others v. Federation of Pakistan PLD 1991 Kar. 1; Ellahi Cotton Mills' case PLD 1997 SC 582; PLJ 1997 SC 13; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142; Muhammad Arshad Khan v. Secretary Establishment 2000 PLC (C.S.) 587; Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Calicon (Pvt.) Limited v. Federal Government of Pakistan and others 1996 MLD 705; Amin Ahmad and others v. Ministry of Production and others PLD 1996 Kar. 27; Federation of Pakistan v. United Sugar Mills PLD 1977 SC 397; Malik Asad Ali's case PLD 1998 SC 161; C.P.S.L.A. No.750 of 2002; Kh. Ahmad Tariq Rahim v. The Federation of Pakistan PLD 1992 SC 646: Workers Union, United Industries v. The Federation of Pakistan 1992 SCMR 2121; Millat Tractors Employees Trust v. Government of Pakistan PLD 1992 Lah. 68; Calicon (Pvt.) Ltd. v. Federal Government of Pakistan and others 1994 SCMR 1758; Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362; PLD 1969 SC 223: Muhammad Din v. Muhammad Saleem 1979 SCMR 172; Ameer v. Province of Punjab 1999 CLC 603; Aftab Private Limited v. Central Board of Revenue, Government of Pakistan and 3 others 1999 MLD 122; Mrs. Sandesh Ram. Mehta v. State Bank of Pakistan 1992 MLD 1372; 1992 MLD 1372; Zahoor Ahmad and others v. The Federation of Pakistan 1999 Lah. 139; Government of Sindh v. Khalil Ahmed and others 1994 SCMR 782; Messrs Pragma Leather Industries v. Mrs. Sadia Sajjad PLD 1996 SC 725: Lahore Improvement Trust Lahore v. The Custodian Evacuee Property, West Pakistan, Lahore PLD 1971 SC 811; Kh. Ahmad Tariq Rahim v. Federation of Pakistan PLD 1991 Lah. 78; Hundabiya Engineering (Pvt.) Ltd. v. Pakistan and others PLD 1998 Lah. 90; C.P. No.70-L of 1992; Province of Punjab v. Federation of Pakistan. PLD 1956 FC 72 and Nadeem Younas v. WAPDA 1996 CLC 1090 ref.

Dr. A. Basit for Petitioners.

Makhdoom Ali Khan, Attorney-General for Pakistan.

Sher Zaman Deputy Attorney-General for Pakistan.

M.Saleem Sehgal for Respondents Nos. 1 to 16 and 22.

Abid Aziz Sheikh for Respondent No.4.

Date of hearing: 31st March, 2003.

P L D 2003 Lahore 646

Before M. Javed Buttar, Ch. Ijal Ahmad and Syed Jamshed Ali, JJ

Mian MUHAMMAD SHAHBAZ SHARIF through Attorney---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and 15 others---Respondents

Writ Petitions Nos. 17268, 17272 and 17273, 17269, 17270 and 17271 of 2002, heard on 27th September, 2003.

(a) Representation of the People Act (LXXXV of 1976)---

----Ss. 14(3)(c), 12(2) & 13---Qanun-e-Shahadat (10 of 1984). Art. 84--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Nomination for election---Provision of S.12(2) Representation of the People Act, 1976 had made it obligatory for a candidate, as also for his proposer and seconder, to put their signatures on the nomination papers---Signatures of the candidates, on their nomination papers in the present case, were allegedly not genuine---Candidates throughout the relevant period had been living abroad and had failed to establish the sending of the nomination papers from Pakistan to them in the said country and there was nothing on the record to show that the nomination papers duly signed by them came back to Pakistan and the same were presented before the Returning Officers--­Candidates could not establish that their affidavits statedly signed by them in the foreign country, tiled before the Election Tribunal, were received in Pakistan---Affidavits of the candidates on Form XIX accompanying their nomination papers showed that the same were sworn by them in Pakistan before the Oath Commissioner, whereas on the date of attestation of the said affidavits the candidates were admittedly in a foreign country which fact further established that the signatures of the candidates on their nomination papers were not genuine and that the candidates never appeared before the Oath Commissioner---Election Tribunal, in exercise of lawful jurisdiction vested in it, examined and compared the alleged signatures of the candidates on the nomination papers with the admitted signatures of the candidates, on their authorization letters, and found that they lacked similarity which was evident to the naked eye---Election Tribunal keeping in view Art.84 of the Qanun-e-Shahadat, 1984, lawfully compared the signatures in circumstances---Finding of fact recorded by the Election Tribunal, could not, be up set in Constitutional jurisdiction by the High Court, even it' another could possibly be taken---Absence of genuine signatures amounted to non-signing the nomination papers which was fatal in character and was not curable/condonable.

S.M. Zahir v. Pirzada Syed Fazal Ali Ajmeri 1974 SCMR 490: Mirza Arif Baig v: Mubarik Ali PLD 1992 Lah. 366; Abdul Ghaffar v. Muhammad Sharif 1993 CLC 1779; Balak Rana v. Muhammad Said AIR 1923 Lah. 695; Ahsanullah v. Abdul Jabbar PLD 1958 Dec ca 57; Ghulam Nabi and another v. Khan Muhammad Afzal Khan, Settlement Commissioner, Lahore and another 1970 SCMR 68; Ghulam Yasin v. Additional Deputy Commissioner etc. 1983 Law Notes (Lahore) 1309; Ram Dayal v Brijaraj Singh and others AIR. 1970 SC 110 and Begum Zia Farhat Awan and 2 others v. Islamic Republic of Pakistan and three others 1993 CLC 365 ref.

(b) Representation of the People Act (LXXXV of 1976)---

----Ss. 14(3)(d) & 12(2)---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Nomination for election---Signatures of candidates were found to be not genuine by the Election Tribunal---Contention was that a person who was son of one candidate and nephew of the other had submitted an affidavit to the Election Tribunal in rebuttal to the effect that the signatures, of the candidates were genuine for he was familiar with the signatures of both the candidates and signatures on the nomination forms were those of the candidates, which had not been taken into consideration by the Tribunal---Validity---Affidavit of the said person did not contain the assertion that the nomination papers were signed in his presence---Statement in the said affidavit that he was familiar with the signatures of the candidates was not sufficient to displace the finding of the Election Tribunal arrived at, in the exercise of lawful jurisdiction---Returning Officer, under S.14(3)(c) of the Representation of the People Act, 1976 could reject the nomination papers if any of the provisions of S.12 of the Act had not been complied with since under S.12(2) of the Act, signature of the candidate on the nomination papers was mandatory.

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

----O. XX, R.3---Judgment to be signed---Sending of the files to the office of the Court was a ministerial act and it could not be determinative of the date of signing the judgment.

(d) Representation of the People Act (LXXXV of 1976)---

----S. 99---Companies Ordinance (XLVII of 1984), S.284---Constitution of Pakistan t 1973), Art.199---Constitutional petition---Disqualification of a candidate on account of being Bank defaulter---Candidate, in the present case, besides being Director and beneficiary of the loans advanced to the Companies had admittedly executed certain documents, including the documents of personal guarantees in favour of the Bank, acknowledging to have attained the status of principal debtor in the payment of the loans claimed by the Bank---Undisputed fact remained that the two Companies i.e. the principal debtor had placed all the assets and properties at the disposal of the Court at the initiative of the creditor Bank through an application under S.284, Companies Ordinance, 1984---Bank itself wanted to realize its dues by the disposal of the properties of the two Companies which had already been accepted by the said Companies---Such was the case in which the creditor had taken over the assets and properties of the principal debtor--­Effect of such new arrangement was that all previous agreements including the agreements of guarantee stood superseded---Change in the circumstances i.e. enforcement of a compromise by the creditor Bank under S.284 of the Companies Ordinance, 1984 was so fundamental in character that it struck at the very root of the original contract---With the taking over of the assets and properties of the Companies by the creditor Bank, the remedy of the surety, to proceed against the principal debtor at least stood suspended---When the creditor took over the principal debtor i.e. the Company, the surety could not be held to be liable any more---High Court, however, clarified that the observations with regard to the matter of default of the candidate etc. had been made in the limited context of the question whether the candidate could be said to be a defaulter, and were not to be construed to prejudice the parties in the said recovery suits.

Begum Zia Farhat Awan and 2 others v. Islamic Republic of Pakistan and three others 1993 CLC 365 ref.

Ashtar Ausaf Ali, Ijaz Hussain Batalvi and Kh. Umar Masood for Petitioners.

Kh. Saeed-uz-Zafar, Deputy Attorney-General' and Dr. Danishwar Malik, Deputy Attorney-General for Pakistan.

Maqbool Ilahi Malik, Advocate-General, Punjab.

Ch. Muhammad Aslam Sandhu for Kamal Barikullah, Kh. Farooq Hussain and Kh. Maqsood Hussain Objectors.

Ali Ahmad Awan for Respondents Nos. 10 and 11.

Rashdeen Nawaz Kasuri for Mian Muhammad Ashraf and Ch. Muhammad Amin, Objectors.

Dates of hearing: 25th, 26th and 27th September, 2002.

P L D 2003 Lahore 662

Before Sayed Zahid Hussain, J

ZAFFARULLAH KHAN---Petitioner

Versus

AZIZ-UD-DIN AHMAD KHAN and others---Respondents

Writ Petition No.74-R of 1997, decided on 26th May, 2003.

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2(2)---Constitution of Pakistan (1973), Arts.199 & 189--­Constitutional petition---Supreme Court had issued direction to the Notified Officer in the case, to "resolve all the disputed questions of fact" through an independent and free inquiry into the disputed matter---Contention of the petitioner that after the issuance of PTD the Department could not make any probe into the matter or no inquiry could be undertaken or that the matter could be left to be determined by the Civil Court was untenable for the observations/directions contained in the judgment of the Supreme Court were entitled to highest regard and respect and was binding on the parties---High Court was not in a position to ignore the same rather no one could be allowed to find faults with such a clear mandate contained in the said judgment---Notified officer, in circumstances, was duty bound to have made an independent inquiry to resolve the disputed matter.

Sh. Manzoor Hussain v. Maula Bakhsh and another 1981 Law Notes (SC) 684 ref.

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

----S. 16---Undue influence--Essence---A, who by virtue of an agreement had surrendered his share in the property had alleged that he suffered from a mental ailment and started living with Z (his father-in-law) who, by taking advantage of his ailment, got certain documents signed by him and implemented in the official record ---Validity---Factum of the said agreement having been arrived at between the parties was clearly inferred and demonstrated---Agreement could not be rendered void or ineffective unless it had been proved by A that the same was result of "undue influence" exerted upon him---A though was a well placed educated person but had not appeared to make any statement before the concerned Authorities in support of his allegations, his appearance and deposition would have enabled the other party to the agreement to cross-examine him and that would have been of immense importance---Long silence of A in the matter also gave rise to adverse inferences against him---Mere certification by the doctor and statement who statedly had been giving to A treatment would have been only a corroborative and supporting piece of evidence---Mere existence of relationship between the parties did not necessarily lead to the conclusion, as to exercise of undue influence---Precise nature of influence allegedly exercised, manner of use of influence, unfair advantage derived by the other party, had to be proved with precision because essence of "undue influence" was that a person was constrained to do against his will, but for the influence, he would have refused to do, if left to exercise his own judgment---Agreement was indeed executed between the parties which suffered from no factual or legal infirmity and had full legal efficacy and continued to bind the parties---Transaction made and envisaged by the agreement between the parties, in circumstances, was neither unconscionable nor was detrimental to the interest of A.

Amir Chand Tota Ram, Delhi v. Sint. Sucheta Kripalani, Delhi AIR 1961 Punj. 383; Misrilal Jalamchand and another v. Sobhachand Jalamchand and others AIR 1956 Bom. 569; Thakkadi Syed Mohamed v. Ahmed Fathummal and others AIR 1973 Mad. 302; Afsar Shaikh and another v. Soleman Bibi and others AIR 1976 SC 163 and Shamir through Legal Heirs v. Faiz Elahi through Legal Heirs 1993 SCMR 145 ref.

(c) Administration of justice--

---- Order passed by the Authority, in the present case, smacked of some prejudice qua the person and status of one of the parties whose conduct had been discussed and criticized unnecessarily and disproportionately---High Court disapproved the said critical observations/remarks made in the order and observed that scales of justice should not tilt on account of a particular position and status of person held---Evenhanded administration and dispensation of justice was the hallmark of a judicial system, necessary to maintain equilibrium in society---No one should gain or be allowed to take advantage of his position or status, how high it might be, at the same time no one should suffer deprivation, on account of his status and position---All were equal before the law and the Court---Matters were to be decided without fear and favour.

Muhammad Hanif Khan Niazi for Petitioner.

M. Z. Khalil for Respondent No.3.

Kh. Muhammad Afzal for the Remaining Respondents.

Date of hearing: 26th May, 2003.

P L D 2003 Lahore 669

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

Syed JAVED IQBAL BOKHARI‑‑‑Appellant

Versus

NATIONAL ACCOUNTABILITY BUREAU‑‑‑Respondent

Criminal Accountability Appeal No. 15 of 2003 and Writ Petition No.957 of 2003, decided on 26th May, 2003.

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

‑‑‑‑Ss. 9(a)(vi), 10, 3 & 32‑‑‑Appeal‑‑‑Appraisal of evidence‑‑‑Sentence, reduction in‑‑‑Allegation against the accused was that he being holder of a public office, in connivance with the Chairman of a Cooperative Credit Corporation and misusing his authority took huge amount of unsecured loan which act constituted as an offence designated as "corruption and corrupt practices" as defined under S.9(a) of the National Accountability Ordinance, 1999‑‑‑Account under reference was factually opened by the accused and he withdrew money from the same from time to time and the only thing the accused denied was that accusation of malpractice or misuse of authority‑‑­Accused also asserted that he had mortgaged his property against the loan behaving like an ordinary customer while availing the facility provided by the Cooperative Society and there was nothing criminal about the transaction and as such offence was not covered by S.9(a)(vi) of the Ordinance‑‑­Validity‑‑‑Contention of the accused that he took the loan from his friends was a casuistic reasoning which was often a useful tool for corrupt officials and was just like putting the naive off the scent, silencing the inquisitive, falsifying entries, there were useful techniques used by defrauders to evade prosecution and escape the censure of public opinion‑‑‑No direct evidence as to the benefit which the accused had extended to the Cooperative Society under reference were on the record except that his omissions, inaptitude and inaction while he acted as the Provincial Secretary for Cooperative Societies were catalysts towards the general loot which took place during his tenure and of course with impunity‑‑‑Accused, obviously had allowed all that for monetary benefit which' was reflected in the present case, otherwise there was no reason, why he should have been extended the financial advantage‑‑­Planning for a considerable time was required in a white collar crime where people were cultivated and were bribed indirectly and often obliquely so that they would be of use at a time when they were needed‑‑‑Ostensible shape of the benefits may be anything but the Court had to see its reality ‑‑‑Mens rea, in circumstances, did exist because from the very day of the opening of the account, the defiling and violation of the trust was initiated through opening of a loan account contrary to the purpose for which the Cooperative Society had been created‑‑‑When the accused became the Secretary Cooperatives, he plundered the public money in connivance with the Directors of the said Society without pledging any corresponding security or collateral and without qualms of conscience and desire to return the money which reflected a criminal intention and he committed the crime and abused the authority and took said favours as a bribe or gratification or call the same by whatever name‑‑Accused had obtained loan but had no desire to repay as he had not covered the loan with the matching collaterals which was purposeful and the desire was to defraud‑‑‑Liability of the accused was not a civil liability as all cases involving abuse of power, default in payment of outstanding amounts due to financial institution were brought within the ambit of the National Accountability Ordinance, 1999 for proceeding in a criminal Court‑‑‑Case of the accused, in circumstances, was that of misuse of authority although indirectly, but the prosecution had established its case against the accused‑‑­High Court, in appeal, upheld the order of conviction of the accused and observed that since the accused had acknowledged his liability against the principal amount and had even taken steps in making two payments and did offer a schedule which he later changed, besides he was a Government servant and the results of the present case were going to have many negative repercussions on his career, were some of the facts which persuaded the Court in taking a somewhat lenient view regarding his sentence‑‑‑High Court reduced the sentence of the accused to three years' R.I. but enhanced the same in case he defaulted in paying the tine of Rs.2 crores awarded by the Trial Court from one year to two years' R.I. and maintained his disqualification under S. 15 of the Ordinance.

Karachi Gas Company Ltd. v. Dawood Cotton Mills Ltd. PLD 1975 SC 193; AIR 1973 Gauhati 111; Black's Law Dictionary; Tractatio de Barattaria (Jena, 1684), pp.3,4; Western Mut. Ins. Co. v. Baldwin, Iowa, 137, N.W.2d 918, 924; State v. Greer 77 SC 2d 917, 920, 238 N.C. 325; Hutchinson v. State 36, Tex. 293, 294 and Summa Diversorum Tractatuum III, p.786ff ref.

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

‑‑‑‑Ss. 9 & 10‑‑‑Corruption and corrupt practices‑‑‑Proof‑‑‑Cases under the Ordinance were one of strict liability‑‑‑Prima facie case had to be established before a presumption and inference under the Ordinance could be drawn‑‑­Where the National Accountability Bureau had established a prima facie case after establishing the offence, the onus shifted on to the accused to establish whether a case was made out under the provisions of S.9 of the Ordinance or not particularly when he was holding a public office and more offices which directly dealt with the affairs of the loan granting society.

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

‑‑‑‑S. 9(a)(vi)‑‑‑Word "authority" used in S.9(a)(vi) of the National Accountability Ordinance, 1999‑‑‑Connotation‑‑‑Authority may be express or implied, it is express when it is actual viz. when a master tells his servant to do a certain thing, where it is implied when it is used from the position of influence or a position where the party against whom it is used feels that obedience may be beneficial or its disobedience may entail wrath or would be disadvantageous compared to the results otherwise.

Tractatio de Barattaria (Jena, 1684), pp.3,4 quoted.

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

‑‑‑‑S.9‑‑‑Corruption and corrupt practices‑‑‑Abuse of power and authority‑‑­Proof‑‑‑Modus operandi of corruption, these days, had taken a more subtle and complex shape which was known as White Collar Crime and in the area of "White Collar Crime," there would hardly be a different sense of the "bribe and abuse or misuse of authority", where the motive was to gain any benefit or favour; any circumvention howsoever subtle would not take it out from the ambit of criminal law on the basis of any casuistic reasoning‑‑­White Collar Crime required lot of skills and perceptions for discovering facts and for collecting evidence for purposes of establishing a criminal case particularly of abuse of power and authority‑‑‑National Accountability Ordinance, 1999 was infirm in several ways, and therefore, it could not meet the multiple situations arising in White Collar Crimes‑‑‑Said Ordinance being a growing law shall improve through legal realism‑‑‑High Court recommended a recurring study of the Ordinance and dissemination of its purposes as per the promise made in S.33(c) of the Ordinance‑‑‑No report as required under S.33(d) of the Ordinance for updating the information of the Courts had been brought out.

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

‑‑‑‑S. 6(ii)(ba) [as added by National Accountability (Amendment) Ordinance (CXXXIII of 2002)]‑‑‑Chairman, National Accountability Bureau, appointment of‑‑‑High Court pointed out in the Ordinance the demeaning of the status of a Judge of the Supreme Court/Chief Justice of the High Court in connection with eligibility of a person for the office of a Chairman, inasmuch as those offices were equated with a Grade‑22 Officer which was a poor reflection on the draftsmanship of the Ordinance and desired the taking of measures required for removing such anomalies.

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

‑‑‑‑S.9‑‑‑Corruption and corrupt practices‑‑‑Any one who receives gifts, jeopardizes the health of the Republic, conspires against its liberty and integrity, neglects justice, perverts judgment, corrupts the just cause of honest men, the innocent and defenceless.

Tractatio de Barattaria (Jena, 1684), pp.3,4 quoted.

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

‑‑‑‑S.9‑‑‑Corruption and corrupt practices‑‑‑Bribe‑‑‑Means an act of influencing action of another by a bribe; essence of bribery is prostitution of a public trust, betrayal of public interests, debauchment of public conscience; bestowing of some gift; advantage or emolument on an officer for the purpose of inducing the latter to do a particular act in violation of his duty or in inducing to favour or in some manner to aid the person offering the same or some other person, in a manner forbidden by law.

Western Mut. Ins. Co. v. Baldwin, Iowa, 137, N.W.2d 918, 924; State v. Greer 77 SE 2d 917, 920, 238 NC 325 and Hutchinson v. State 36, Tex. 293, 294 ref.

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

‑‑‑‑S. 9‑‑‑Corruption and corrupt practices‑‑‑Any officer or public minister who by reason of his office or ministry accepts money or the promise of money, or any advantages other than his due fixed salary, in exchange or carrying out or neglecting to carry out one of his duties, even if the donation or offer is spontaneous, or did not infringe on the law, or even if it was given in the aim of quickening the proceedings, he was in all cases, guilty of prevarication which derives its name from barter by using Holy Justice iniquitously for money or other gain.

Summa Diversorum Tractatuum III by Savelli, p.786ff quoted.

Abid Hassan Minto assisted by Bilal Hussain Minto for Appellant.

Waqar Hassan Mir for Respondent.

Date of hearing: 6th May, 2003.

P L D 2003 Lahore 683

Before Asif Saeed Khan Khosa, J

FAZAL HUSSAIN ---Petitioner

Versus

ASAD ABBAS and others---Respondents

Writ Petition No.21817 of 2001, heard on 20th June, 2003.

Criminal Procedure Code (V of 1898)---

----S. 145---Dispute concerning land likely' to cause breach of peace--­Provision of S.145, Cr.P.C. envisaged an apprehension regarding breach of peace as a jurisdictional requirement and the matter of possession was to be gone into by a Magistrate only after such a jurisdictional requirement was satisfied---Prolonged pendency of an application under S.145, Cr.P.C., in the absence of any untoward incident taking place between the parties, was a valid ground for termination of proceedings under S.145, Cr.P.C.

Qazi Gran v. Muhammad Jan and another PLD 1996 SC 541 fol.

Qazi Gran v. Muhammad Jan and another PLD 1996 SC 541; Mirza Abdul Razzaq v. Barkat Ali and others 1985 SCMR 1235; Muhammad Khurshid Khan v. Asif Raza Mir and another PLD 1998 SC 123 ref.

Irshad Ahmad Cheema for Petitioner.

Fazal-e-Miran Chauhan for Respondent No. 1.

Najeeb Faisal Chaudhry, Addl. A.-G. for Respondent No.2.

Nemo for Respondents Nos. 3 to 5.

Date of hearing: 20th June. 2003.

P L D 2003 Lahore 686

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

ASIF SEHGAL---Appellant

Versus

NATIONAL ACCOUNTABILITY BUREAU---Respondent

Criminal Appeals Nos. 1092 of 2001; 1075 and 29 of 2002 decided on 8th July, 2003.

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

---Ss. 9(a)(viii), 5(r) & Sched.---Corruption and corrupt practices----Allegation of "wilful default "---Contentions of the accused were that cases against him were of "default simpliciter" and not that of "wilful default" and therefore, provisions of S.9(a)(viii) of the National Accountability Ordinance, 1999 were not applicable and the definition of "wilful default" which was introduced after actions were taken against him, could not be stretched to his case and he could not be made liable retrospectively for acts which were stated to have been committed prior to the coming into force of the National Accountability Ordinance, 1999; that no 30 days' notice was given to the accused and therefore, without such a notice attribution of a "wilful default" was ill-founded; that an important ingredient of crime i.e mens rea was not established at the end of the accused because of explanation he had given, the part payments he had made and the earnest endeavours put in by him for running the industry whose assets were not squandered away but these were preserved before they were taken over by the liquidator and the assets were still worth more than the liability and that by itself gave rise to a strong presumption in favour of the accused and against the allegations of "wilful default" and that the investigation against the accused was done callously---Validity---Cases against the accused though were of "wilful default" on the touchstone of the National Accountability Ordinance, 1999 but the extenuating circumstances were very much there to be extended to the accused---High Court, in circumstances, upheld the orders of convictions, but reduced the sentences to already undergone in all these cases and maintained the quantum of fines awarded in all these references---Fines were directed to be recovered under S.386, Cr.P.C. and from the assets of the companies.

Statements of the Investigating Officer, in the present case, were disappointing rather shocking. It is unfortunate that the Investigating Officer who investigated all these three cases acted so callously and did not even bother to collect the statement of the accused or record his defence version or to visit the spots or gather sufficient evidence for ascertaining whether these were cases of "wilful default".

Nobody checked as to what the Investigating Officers were doing and this had happened at various levels. Such Investigating Officers if allowed to work in an organization as the NAB, would only bring havoc to the institution with tall claims as reflected in the Preamble of the law and would destroy all the national aspirations of bringing the corrupt to accountability.

According to the accused this was a case of default simpliciter but the case of the prosecution was that this was a case of wilful default. The explanations given by the accused in all these three references were suggestive of efforts on his part to revive the business and industry of the group under reference. In this connection, those who came to support the prosecution case had also suggested likewise but as a new law had come into being and default had been committed, the complaints were lodged, while in the meanwhile beneficial legislation viz. the approval of the Governor of the State Bank before initiation of any action against a business/industrial house, notice of 30 days before lodging of complaint etc. coming into being; the benefits of which the accused could take.

Cases against the accused were borderline cases of wilful default or default simpliciter. The default mainly took place at a time when this law was not there and the general atmosphere was such that things were being taken easy because civil liabilities were not allowed to be converted into criminal liabilities as is the case.

Accused, during the arguments before the High Court was willing to pay the lawful dues although it was his case that correct statements of accounts had not been appended with the references and he doubted the figure.

It was also his claim that all the assets of the company even though in possession of the liquidator were intact and money could be realized from them out of their sale. In this connection, the counsel referred to a proposal made by him to the NAB for the sale of the assets.

A factor out of his control was the economic condition and in his statement under section 342, Cr.P.C. he explained about the recession in his business which once, according to him, was an envy of others.

Whereas these were cases of wilful default on the touchstone of the National Accountability Ordinance, but the extenuating circumstances were very much there to be extended to the accused. High Court, in circumstances, upheld the orders of conviction, but reduced the sentences to already undergone in all these cases. However, the quantum of lines awarded in all these references was maintained by the High Court. These 'tines were to be recovered under section 386 of the Cr.P.C. and from the assets of the Companies.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 and Mrs. Shahida Faisal v. Federation of Pakistan PLD 2000 Lah. 508 ref.

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

----Ss. 9(a)(viii), 5(r) & 31D---Corruption and corrupt practices---Allegation of "wilful default"---Investigation---Essentials---High Court pointed out the steps to be taken by the Investigating Officer for ascertaining whether the cases against the accused were that of "wilful default" ---Proper investigation in the cases and in house accountability system was emphasized by the High Court with observations that poor investigation would lead to poor results in an adversarial system and even good laws would become bad laws when badly implemented---Patriotic organizations had to set ideals before themselves which had to be followed with discipline and steadfastness.

Statements of the Investigating Officer, in the present case, were disappointing rather shocking. It is unfortunate that the Investigating Officer who investigated all these cases acted so callously and did not even bother to collect the statement of the accused or record his defence version or to visit the spots or gather sufficient evidence for ascertaining whether these were cases of wilful default.

Nobody checked as to what the Investigating Officers were doing and this had happened at various levels. Such Investigating Officers if allowed to work in an organization as the NAB, would only bring havoc to the institution with tall claims as reflected in the Preamble of the law and would destroy all the national aspirations of bringing the corrupt to accountability.

It is essential for NAB to engage fair-minded economic experts so that experts or Chartered Accountants formed independent and fair views with respect to liabilities in such cases. Leaving the investigations to a person as happened in these cases, surely meant frustrating rather defeating the legal requirements and thus the ends of justice. In all the future references with respect to companies etc. a certification of the Governor of the State Bank of Pakistan was to be obtained first. It would be proper for NAB to appoint experts for scrutiny of even the pending cases if they were not at the stage of disposal so that the ends of justice were met. After all a State exits for the good of its people.

NAB as a National Institution will be respected by the people of Pakistan more when justice is assured to all and not otherwise or merely because of its clout. An institution has a great mandate which is highlighted in the preamble of its law and that ideal has to be saved from destruction and has to be taken care of faithfully in the national interest.

Proper investigation and an inhouse accountability system was emphasized.

Poor investigations will lead to poor results in an adversarial system and even good laws will become bad laws when badly implemented. Patriotic organizations have to set ideals before themselves which have to be followed with discipline and steadfastness. This is only possible if there is also accountability within the system so that the system weeds out the undesirables, otherwise the Anti-Corruption Act of 1947 was a better drafted law but because of its poor implementation it failed to come up to our expectations.

High Court recommended that an inquiry be ordered for ascertaining as to why the Investigating Officer in this case acted so callously and had no regard to his responsibility under the law and thereafter to proceed in accordance with law.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 and Mrs. Shahida Faisal v. Federation of Pakistan PLD 2000 Lah. 508 ref.

Ch. Aitzaz Ahsan, Ashtar Ausaf Ali, Shahid Saeed, Faisal Naqvi and Farooq Malik for Appellant.

Javed Shaukat Malik and Amar Farooq Khawaja for Respondent.

Dates of hearing: 24th, 25th and 26th June, 2003.

P L D 2003 Lahore 714

Before Muhammad Sayeed Akhtar, J

HYUNDAI-HIDCO-HAKAS JOINT VENTURE---Petitioner

Versus

WATER AND POWER DEVELOPMENT AUTHORITY---Respondent

Writ Petition No. 21289 of 2002, decided on 2nd June, 2003.

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

----Art. 199---Constitutional petition---Contract for construction of civil works---Arbitration clause---Contractor (petitioner) sought release of security documents/guarantees after substantial performance of contract and completion of works---Employer disputed decisions of "Engineer" (appointed for purposes of contract) regarding certification and payment of money against contractor's claim---Validity---Factual controversy existed between parties, which could not be resolved by High, Court in exercise of Constitutional jurisdiction---Dispute between employer and contractor in connection with or arising out of contract of execution of works according to conditions of contract would be referred to and settled by "Engineer" and subject to arbitration, his decision would be final --- Employer had not accepted decision of Engineer and had invoked arbitration clause of the contract---Despite satisfaction, approval or certification by engineer, employer could show that work was not in accordance with contract--­Employer could not become a Judge in his own cause without recourse to arbitration and ask for encashment of Bank guarantees, which would amount to forfeiture of contractor's property without getting dispute adjudicated first---Contractor had to make colossal payment to Bank after notice of encashment of Bank guarantees by employer---Such unlawful pressure exerted on contractor was not a normal commercial or permissible pressure, but same had constituted improper threat and conduct in coercing him to make disputed payment to employer and keep guarantees intact---Right of employer to encash Bank guarantees not disputed, but employer had not acted fairly and reasonably- in such , case---Such fact could not be decided in Constitutional petition, which was dismissed by High Court.

Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Murree Brewery Co. Ltd. v. Pakistan through Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Anjuman-e-Ahmadiya, Sardodha v. Deputv Commissioner, Sargodha and another PLD 1966 SC 639; Shaukat Ali v. Secretary, Industries and Mineral Development, Government of Punjab, Lahore and 3 others 1995 MLD 123; Asif Iqbal v. Karachi Metropolitan Corporation and 2 others PLD 1994 Kar. 60; Federal Government Employees Housing Foundation through Director General, Islamabad v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad PLD 2002 SC 1079; Abdul Rauf and others v. Capital Development Authority, Islamabad 1988 MLD 1523 Nizam Din and others v. Civil Aviation Authority 1999 SCMR 467; Daewoo Corporation v. NHA 2000 MLD 1745; Bavindir Insaat v. Pakistan PLD 2001 Lah. 426 and Amin Fabrics Limited, Karachi v. Pakistan Agricultural Storage and Services Corporation Ltd. (PASSCO), Lahore and another PLD 1999 Lah. 313 ref.

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

----Art. 199---Factual controversy---Could not be resolved by High Court in exercise of Constitutional jurisdiction.

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

----Art. 199---National Accountability Ordinance (XVIII of 1999), S.9--­Loss to public exchequer caused by public functionaries---Observation of High Court---Contract for construction of Chashma Hydropower Electric Project---Delay of 1129 days in completion of project due to mis-management and inefficiency of WAPDA. and ,concerned Authorities--­Original evaluated cost of project was Rs.10,557 million, which had increased to Rs.17,822 million on account of such delay---Citizens of country had been made to incur and suffer an extra cost of Rs.7265 million---Neither responsibilities had been fixed nor any action had been taken against guilty nor National Accountability Bureau had initiated any inquiry.

Raza Kazim for Petitioner:

Tariq Kamal Qazi for Respondent.

Dates of hearing: 6th May and 2nd June, 2003.

P L D 2003 Lahore 726

Before Mian Saqib Nisar, J

Rana FAZAL-E-HAQ and another---Petitioners

Versus

DIRECTOR OF ACCOUNTS, PAKISTAN POST OFFICE DEPARTMENT, LAHORE and 2 others---Respondents

Writ Petitions Nos.20175 of 2001, 8300 and 19778 of 2002, heard on 7th July, 2003.

(a) Rules of Business--

-------R. 8---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Alternate remedy, availability of---Dispute between two Government Departments---Resolving of such dispute by High Court in exercise of Constitutional jurisdiction---Validity---Rules of Business are framed under the Constitution and are binding upon two Departments---If any person having grievance that the law of land is not being followed seeks enforcement thereof, and the Government does not perform its functions provided under the Rules, the exercise of Constitutional jurisdiction cannot be refused only on the ground that there is some mechanics provided for the resolution of the issues in Rules particularly when the Rules are not being followed by the concerned authority ---Constitutional petition was maintainable in circumstances.

(b) Controller-General of Accounts (Appointment, Functions and Powers) Ordinance (XXIV of 2001)------

----Ss. 3 & 6---Rules of Business, R.8---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dispute between two Government Departments ---Adminsitrative control of offices---Creation of various regional offices---Validity---Powers, functions and authority of Controller­ General of Accounts were specified under the provisions of Controller General of Accounts (Appointment, Functions and Powers) Ordinance, 2001---On enforcement of Controller-General of Accounts (Appointment, Functions and Powers) Ordinance, 2001, the Controller-General was vested with the exclusive administrative control and authority of all the departmentalized accounting organizations including the post office accounting departments---Power to create any regional offices to effect decentralization of the accounting office of a Department and for the postings and transfers of the employees therein, could only be exercised by the Controller-General and Post Office Authorities had no authority in that respect---Orders passed by the Post Office Authorities whereby regional offices were created were without lawful authority, without jurisdiction and the same were set aside by High Court in exercise of Constitutional jurisdiction---Petition was allowed in circumstances.

Sheikh Abdul Hameed for Petitioners

Mian Hameed-ud-Din Kasuri, D.A.G. with Muhammad Sarwar Zahid, Accounts Officer, Muhammad Rafiq Shad with Rana Ghulam Gilani, Accounts Officer and Sohail Mukhtar Chishti, A.A.O. for Respondents Nos. 1 and 2.

Date of hearing: 7th July, 2003.

P L D 2003 Lahore 730

Before Mian Saqib Nisar and Jawwad S. Khawaja, JJ

Mst. NARGIS MOEEN and another---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary Defence, Islamabad and another---Respondents

Writ Petition No.7559 and 7560 of 2000, 18615 and 18643 of 2001, heard on 2nd June, 2003.

Cantonments Act (II of 1924)---

----S. 60---Punjab Local Government Ordinance (VI of 1979), S.137 & Second Sched., Part III, Item No.5 [as omitted by Punjab Local Government (Amendment for Abolition of Certain Taxses) Ordinance (XLIX of 1999) with effect from 28-9-1999]---Levy of taxes by Cantonment Board on transfer of property situate within limits of Cantonment---Validity---Section 60 of Cantonments Act, 1924 was governed by principles of legislation by reference, whereunder Cantonment Board could impose only such taxes, which were legally permissible in Municipal areas, where such Cantonment was situated---Intention of Legislature and rationale behind such imposition was based upon rule of equality i.e. Municipality and Board areas had been considered and brought at par for purposes of imposition of local taxes---Referred legislation, the moment same was amended omitting imposition of tax on property in Municipality, power of Board to impose and claim omitted taxes would diminish automatically---Item No.5 in Second Sched of Punjab Local Government Ordinance, 1979 had been omitted through Punjab Local Government (Amendment for Abolition of Certain Taxes) Ordinance, 1999 with effect from 28-9-1999---Board, thus, had no jurisdiction to claim tax qua the transfer of property, after promulgation of the amending Ordinance.

Naeem Sadiq and Arshad Nazir Mirza for Petitioners.

Ch. Muhammad Rasheed Ahmad and Tariq Masud for Respondents.

Date of hearing: 2nd June, 2003.

P L D 2003 Lahore 733

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MUHAMMAD ARIF SAIGOL‑‑‑Appellant

Versus

FEDERATION OF PAKISTAN through Ministry of Interior, Pak Secretariat, Islamabad and another‑‑‑Respondents

Accountability Appeal No.704 of 2003, heard on 30th June, 2003.

National Accountability Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Ss. 31‑A & 32‑‑‑Criminal Procedure Code (V of 1898), Chap. VI [Ss.68 to 89]‑‑‑Conviction for abscondence to avoid service of warrants‑‑‑Trial Court merely depended on the reports of the police with respect to the question of service one of such report being that the accused had gone somewhere, which meant that there was a presumption attached to his abscondence‑‑‑Process‑server who was stated to have searched for the accused and affixed proclamation outside his house was never sure whether the accused was absconding‑‑‑Process‑server was presumptive and had depended on information provided to him and had not come to the witness ­box nor did the Trial Court make him stand in the dock‑‑‑Validity‑‑‑Trial Court while exercising jurisdiction under S.31‑A, National Accountability Ordinance, 1999 was not to take the factum of service so lightly as even not to record the testimony of one entrusted with the job to serve the process‑‑­Provision of S.31‑A, National Accountability Ordinance, 1999 provided punishment in absentia and the accused, in the present case, had been given a full dose‑‑‑Accused, after his surrender, should have been given an opportunity of explanation and if the said explanation was persuasive, an opportunity of setting aside of his sentence or his getting bail until he was tried for the main offences as well as under S.31‑A of the Ordinance in one go‑‑‑Principles‑‑‑Accused was yet to face the main trial and suffer the consequences in accordance with law for the main offence, High Court, in circumstances, while upholding the order of Trial Court under S.31‑A of the Ordinance, reduced his sentence to one already undergone and was ordered to be released forthwith in the present case‑‑‑Trial being yet to commence, accused was directed by the High Court to deposit his passport with the Registrar of the Accountability Court before he was actually released.

The trial Court merely depended on the reports of the police with respect to the question of service. One such report indicated that he was not available having gone somewhere which meant that 'there was a presumption attached to his abscondence.

The process‑server might have searched for the accused and affixed a proclamation outside his house but he was never sure whether the accused was absconding. He was being presumptive and he depended on information provided to him. He did not come in the witness‑box for the testimony. Nor did the trial Court make him stand in the dock.

Chapter VI of the Cr.P.C. deals with processes to compel appearance. This Chapter provides an exhaustive procedure because the Court cannot otherwise trust the factum of service at the hands of the police. The procedure prescribed under section 87 (proclamation for person absconding) is to be adopted only after recording of evidence and this is followed by section 88 of the Cr.P.C. authorizing attachment of his property, whereas, section 89 of the Cr.P.C. speaks of restoration of the attached property.

Where in the case of attachment of property and proclamation, an exhaustive procedure has to be followed, how can the Trial Courts, while exercising jurisdiction under section 31‑A of the National Accountability Ordinance, 1999, take the factum of service so lightly as even not to record the testimony of one entrusted to serve the process. Section 31‑A provides punishment in absentia and here the accused had been given a full dose. The Appellate Court had to see whether accused should have been given an opportunity of explanation and if the said explanation was persuasive, an opportunity of setting aside of his sentence or his getting bail until he was tried for the main offences as well as under section 31-A of the Ordinance in one go.

Accused having surrendered and was incarcerated since last five months was a sufficient punishment for his absence from the Court.

The accused was yet to face the main trial and suffer the consequences in accordance with law for the main offence. For the present and under the circumstances while upholding the order under section 31‑A of the NAB Ordinance, 1999, High Court reduced his sentence to one already undergone. He was ordered to be released forthwith in this case. As the trial in this case had yet to commence, High Court directed him to deposit his passport with the Registrar of the Accountability Court before he was actually released.

Mehram Ali's case PLD 1998 SC 1445 fol.

Ashtar Ausaf Ali for Appellant.

M.Bilal Khan, Addl. A.‑G. for Respondents.

Date of hearing; 30th June, 2003.

P L D 2003 Lahore 739

Before Asif Saeed Khan Khosa, J

MANZOOR AHMED and another---Petitioners

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No. 117-Q of 2003, heard on 4th July, 2003

Criminal Procedure Code (V of 1898)---

----Ss. 345 & 561-A---Penal Code (XLV of 1860), Ss. 337-A(ii)/ 337-F(i)/34---Compromise---Failure to effect the compromise during trial--­Compromise arrived at between the parties was not confined to the matter of bail only but the same pertained to the entire case---Complainant as well as the injured person had undertaken to get the petitioners acquitted from the Trial Court when that stage was to arrive---On such compromise the accused persons had been admitted to pre-arrest bail-During the trial, the complainant and injured person declined to effect the compromise and Trial Court refused to acquit the accused persons on the basis of the compromise effected at the time of bail---Validity---Compromise in a criminal case could not be allowed to be resiled from if it had already been acted upon--­Compromise arrived at between the parties at the stage of bail still enured to the benefit of the accused persons and the complainant and injured person could not be allowed to resile from the same---High Court in exercise of jurisdiction under S.561-A, Cr.P.C. quashed the case and acquitted the accused on the basis of compromise.

Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and 2 other 1998 SCMR 466; Barish Ali and 2 others v. Chaudhry Mushtaq Ahmed, Additional Sessions Judge, Depalpur, District Okara and 6 others 2002 YLR 1016; Mukhtar Ahmad and 3 others v. The State 1999 PCr.LJ 1107; Syed Sabir Hussain Shah and another v. Syed Iftikhar Hussain Shah and another 1995 MLD 563; Kumarasami Chetty v. Kuppusami Chetty and others AIR 1919 -Mad. 879(2); Ram Richpal v. Mata Din and another AIR 1925 Lah. 159; Jhangtoo Barai and another v. Emperor AIR 1930 All. 409; Mt. Rmbai w/o Bahadursingh v. Mst. Chandra Kumari Devi AIR 1940 Nag. 181; Godfrey Meeus v. Simon Dular AIR 1950 Nag. 91 and Prithvi Bhagat and another v. Birju Sada AIR 1962 Pat. 316 ref.

Rana Ghulam Sarwar for Petitioners.

Ch. Jamil Ahmed Sandhu and Mehr Khalid Miraj with Respondent No.3 (in person).

Respondent No.2 (present in person).

Date of hearing: 4th July, 2003.

P L D 2003 Lahore 741

Before Saved Zahid Hussain. J

Dr. FOZIA AMBER---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 14790 of 2001, heard on 23rd July, 2003:

(a) Defence Housing Authority Lahore Order [Chief Executive's Order No.26 of 2002]---

----Art.25(f)---Defence Housing-Authority Lahore Ordinance (LI of 1999), S.18---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Judicial review---Scope---Petitioner, in the present case, had filed revision petition against the order of the Registrar, Cooperative Societies before the Cooperative Secretary to the Government of the Province---Such revision could not have been decided on merits because of the change of law viz. repeal of Defence Housing Authority Lahore Ordinance, 1999 on the promulgation of Defence Housing Authority Lahore Order, 2002--­Validity---Object of Art.25(f) of the Defence Housing Authority Lahore Order, 2002, which was curative in sense and remedial in nature providing a forum, was to provide remedy to the aggrieved persons before the Executive Board and it would not be just and fair if the petitioner was deprived of the remedy---Irrationality, unreasonableness or dis proportionality resulting in injustice being a ground for judicial review, even though the case of petitioner may not be strictly falling within the ambit of Art.25(f) of the Order, High Court, had ample power and jurisdiction to relieve a party from oppression and to rectify a manifest injustice by adopting purposive approach---High Court could even remit/remand the matter in conflict to an Authority/Functionary to hear and redress the grievance of a party---Order passed by the Secretary, Cooperative of the Province rejecting the revision of the petitioner was declared by the High Court as of no legal effect, as a consequence whereof, the revision petition filed by the petitioner shall be deemed pending, which shall stand transferred to the Executive Board and shall be heard and decided in accordance with law.

Understanding Statutes, Canons of Construction by S.M. Zafar, 2nd Edn., 2002, pp.234, 235; Statutory Construction by Crawford p.550 and Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691 ref.

(b) Interpretation of statutes---

---- Remedial legislation---Object, purpose and usefulness of such legislation stated.

The words of a remedial statute must be construed so far as they reasonably admit so as to ensure that the relief contemplated by the statute shall not be denied to the persons intended to be relieved. It should be construed in a manner so as to advance a remedy and suppress the mischief or else it would frustrate the legislative intendment.

A special effort is made to avoid a technical construction of the language used, and to give it a fair construction to promote justice in the interest of public good.

It is not unusual to extend the enacting words of a remedial statute beyond their literal import.

The intention of a remedial statute will always prevail over the literal sense of its terms. Words are often omitted or supplied by implication, and sentences transformed, to render the statute a consistent whole and effectuate the legislative will. Where necessary to effectuate the legislative intent, remedial statutes will be construed to include cases within spirit or reason, although outside the letter of the statute, and to exclude cases within the letter but outside the reason. Full effect has to be given by extending the scope, if possible, once the defect sought to be corrected is identified.

In order to maintain a practical and humane system of statutory law, occasions will arise where the meeting of the prohibitory or mandatory requirements of the law may be excused or overlooked.

Understanding Statutes, Canons of Construction by S.M. Zafar, 2nd Edn., 2002, pp.234, 235 and Statutory Construction by Crawford, p.550 ref.

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

----Art. 199---Judicial review---Scope---Irrationality, unreasonableness or dis proportionality resulting in injustice may be a ground for judicial review---High Court has ample power and jurisdiction to relieve a party from oppression and to rectify a manifest injustice by adopting purposive approach and can remit/remand the matter to an Authority/Functionary competent to hear and redress the grievance of a party.

Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691 ref.

Ahmad Waheed Khan for Petitioner.

Fawad Malik for Respondents Nos. 1 to 3.

Faisal Hanif for Respondent No.4.

Iftikhar Ahmad Ch. and Malik Riaz Khalid Awan for Respondent No.5.

Date of hearing: 23rd July, 2003.

P L D 2003 Lahore 747

Before Tassaduq Hussain Jilani, J

Mst. SAIMA and 4 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3978-B of 2003, decided on 21st July, 2003.

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

----S. 498---Penal Code (XLV of 1860), Ss.420/468/471---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10, 7 & 9---Christian Marriages Act (XV of 1872), Ss.4 & 5---Constitution of Pakistan (1973), Art.35---U.N. Convention on Elimination of all Forms of Discrimination Against Women, Art.16---Pre-arrest bail, confirmation of---Protection of family---Female petitioner contended that she was a legally wedded wife of the male petitioner, she was sui juris and that no offence whatsoever had been committed by her---Complainant had stated before the Additional Sessions Judge that the marriage in question was fake and the Father Reverend alleged to have performed the Nikah had no licence to perform the 'Nikah in terms of Christian Marriages Act, 1872 and that the petitioners (female and male) had committed Zina---Validity---Both the petitioners having stated that they were married, the condition precedent for the offence alleged, prima facie; did not exist---Article 35 of the Constitution of Pakistan (1973) and Art. 16 of the U.N. Convention on Elimination of all Forms of Discrimination Against Women had mandated to provide protection to the marriage and the institution of family by the State---Prosecution launched against the petitioners, prima facie reflected not only malice in fact but also malice in law---Petition for confirmation of pre-arrest bail to the petitioners was confirmed by the High Court.

(b) Christian Marriages Act (XV of 1872)---

----Ss. 4 & 5---Every marriage between persons "one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with the provisions of S.5 of the Christian Marriages Act, 1872 and any such marriage solemnized otherwise than in accordance with such provisions shall be void---Marriage primarily was a union between two sui juris individuals the non-performance of rituals would not invalidate the marriage particularly when the person who performed the marriage had placed on record the requisite authorization.

Consterdine v. Samina AIR 1918 Low. Bur. 83 ref.

(c) Christian marriage---

---- Defined.

Stroud's Judicial Dictionary ref.

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

----Ss. 6 & 10---Zina or Zina-bil-Jabr---Nature---Person is said to commit Zina-bil-Jabr if he or she has sexual intercourse with a woman or man, as the case may be, to whom he or she is not validly married in the circumstances enumerated in S.6(1) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

(e) Christian Marriages Act (XV of 1872)---

----S. 5---Scope---Section 5 of the Christian Marriages Act the ceremony of marriage and person who may perform it and not capacity of the person on whom it is performed or with the capacity of person who performs it, save as is expressed therein.

Consterdine v. Samina AIR 1918 Low. Bur. 83 ref.

Patras Felix for Petitioners:

Masood Sadiq for the State.

Kashif Ali Chaudhry for the Complainant.

Date of hearing: 21st July, 2003.

P L D 2003 Lahore 752

Before Tassaduq Hussain Jilani, Raja Muhammad Sabir and Syed Jamshed Ali, JJ

AHMAD ABDULLAH and 62 others‑‑‑Petitioners

Versus

GOVERNMENT OF THE PUNJAB and 3 others‑‑‑Respondents

Writ Petition No.7281 of 2003, decided on 16th July, 2003.

(a) University of Health Sciences Ordinance (LVIII of 2002).‑‑

‑‑‑‑Preamble‑‑‑Pakistan Medical and Dental Council Ordinance (XXXII of 1962), Preamble‑‑‑Constitution of Pakistan (1973), Fourth Sched., Concurrent List, Item 38‑‑‑Vires of University of Health Sciences Ordinance, 2002‑‑‑While Pakistan Medical and Dental Council Ordinance, 1962 contemplates the creation of a Central Regulatory Authority for whole of Pakistan to establish a uniform minimum standard of basic and higher qualifications in medicine and dentistry the University of Health Sciences Ordinance, 2002 seeks to establish a degree awarding university, with power to undertake, research, teach, prescribe courses of studies to be taught in affiliated and constituent colleges‑‑‑Overlapping in broad objectives of the two Ordinances may exist but both envisage distinct institutions ‑‑‑Subject­ matter of both the laws, however, falls within the ambit of Item 38 of the Concurrent List in the Fourth Sched. to the Constitution of Pakistan‑‑­University of Health Sciences Ordinance, 2002, is not ultra vires of the Pakistan Medical and Dental Council Ordinance, 1962 rather both supplement each other.

(b) University of Health Sciences Ordinance (LVIII of 2002)‑‑--

‑‑‑‑S. 37‑‑‑Affiliation of medical institutions‑‑‑Scope‑‑‑Affiliation of existing institutions would not be automatic‑‑‑Principles.

Subsection (1) of section 37 of the University of Health Sciences Ordinance, 2002 would indicate that it makes mandatory for all medical institutions except those which have been established under some Federal Statute and are under the Administrative control of the Federal Government within the geographical boundaries of the Province of Punjab to affiliate with the newly established University of Health Sciences and "within such period" and on "such terms and conditions" as may be prescribed. The institutions run by the Federal Government can, of course, voluntarily affiliate. The time frame was considered essential by the law makers as an abrupt switch‑over from one University to the other could be problematic either for the students or the institutions concerned. Subsection (1) of this section is relatable to those institutions which already stand affiliated with a University and qua whom terms and conditions and terms of affiliation are to be prescribed, whereas subsection (2) stipulates the basic requirements of eligibility of affiliation for an institution/applicant, having no prior affiliation. Sub­section (4) of the same section vests the power to allow or refuse affiliation with the Syndicate and after considering the recommendations of the Affiliation Committee. In the case of the former category of institutions, it is mandatory both for institutions and University of Health Sciences to affiliate whereas for the latter it is discretionary with the University of Health Sciences to grant or refuse affiliation.

The argument that affiliation of the existing institutions with the University of Health Sciences would be automatic with effect from the promulgation of the Ordinance is untenable because if the legislative intent was so then‑‑

(i) the law maker would have used the expression "shall stand affiliated henceforth" instead of "shall affiliate"; .

(ii) "such period" on "such terms" would become redundant if the law envisaged automatic affiliation;

(iii) the existing medical institutions have been specifically mentioned in clause (1) of subsection (2) of section 37 which enjoins the institutions to apply for affiliation;

(iv) section 37(2)(i) shows that even an existing medical institution under the management of Government or otherwise will have to apply. The non obstante clause makes the legislative intent too apparent to warrant any other inference;

(v) the letter itself reflects that there was no affiliation by operation of law and the Vice‑Chancellor had to send a letter/order under the cloak of the emergent power of the Vice‑Chancellor in terms of section 13(2) of the said Ordinance;

(vi) the application forms were sent by the Vice‑Chancellor for the said purpose.

(c) University of Health Sciences Ordinance (LVIII of 2002)‑‑‑

‑‑‑‑S.13(2)‑‑‑Powers and duties of Vice‑Chancellor of the University under S.13(2), University of Health Sciences Ordinance, 2002‑‑‑Scope‑‑‑Vines of Vice‑Chancellor's Letter dated 2‑12‑2002 for affiliation. of Medical Institutions with the University of Health Sciences‑‑‑Said letter was beyond the scope of powers of the Vice‑Chancellor under the Ordinance, however the same can be considered as an intimation by the Vice‑Chancellor to all medical institutions concerned about the mandatory nature of the new law and that they should apply.

A bare reading of section 13(2) of the University of Health Sciences Ordinance, 2002 shows (a) that these powers are available to the Vice ­Chancellor provided the emergency exists as an objective reality, but is not an emergency in a wide sense of the word. It is any state of affairs where the Vice‑Chancellor is of the view that any inact on his part may not be in University's interest, where, immediate meeting of the competent body under the statute is not feasible and where an interim order for ultimate approval by the competent body would serve the institutional interest; (b) it can be used only with regard to those matters which, falls within the power of the Board of Governors as spelt out in section 24 of the University of Health Sciences Ordinance because any action taken by the Vice‑Chancellor has to be placed before the Board for approval in view of section 13(2). The letter of the Vice‑Chancellor neither refers to existence of any emergency nor the subject of affiliation falls within the powers of the Board. The letter in question, therefore, was beyond the scope of his power under the Ordinance. However, it can be considered as an intimation by the Vice‑Chancellor to all medical, institutions concerned about the mandatory nature of the new law which they should apply.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art.9‑‑‑"Right to life"‑ “Right to education." ‑‑Meaning and scope‑‑­Such rights are not absolute‑‑‑Dignified existence may not be possible without a certain level of education and the State has to play a role in ensuring by positive action that the citizens enjoy this right.

The fundamental right of "right to life" recognized in the entire civilized world and enshrined in Article 9 of Constitution of Pakistan has been given expanded meaning over the years. With the passage of time the role of the State has become more pervasive. Its actions, policies and laws affect the individuals in a variety of ways and the Courts have accordingly given a more comprehensive and dynamic interpretation of the fundamental rights including the right to life. Right to life is no longer considered as merely a right to physical existence or a right not to be deprived of life without due process of law. It means a sum total of rights which an individual in a State may require to enjoy a dignified existence. In modern age a dignified existence may not be possible without a certain level of education and the State has to, play a role in ensuring by positive action that the citizens enjoy this right.

Brown v. Board of Education (1953) 98 Law Ed. 873; St. Xaviers College v. State of Gujarat AIR 1974 SC 1389 ref.

(e) University of health Sciences Ordinance (LVIII of 2002)‑‑‑

‑‑‑‑S.37‑‑‑Constitution of Pakistan (1973), Arts.17 & 9‑‑‑Freedom of association‑‑‑Right to education‑‑‑Affiliation of Medical Institutions with. University of Health Sciences under S.37, University of Health Sciences Ordinance, 2002 is basically an association of two corporate bodies and distinct from "right of association", contemplated by Art.17 of the Constitution‑‑‑Such affiliation is not a right created by any Constitutional provision and is a right which does not flow from "right to education" and thus not a fundamental right‑‑‑Merely because a college has been disaffiliated from a University through an enactment would not be derogatory to the fundamental rights under the Constitution‑‑‑Principles.

Right to education is a fundamental right but the State regulates it in more than one ways. In the context of the present case it is the State, through Legislature, which establishes schools, colleges, Universities and regulates affairs. The Universities are entrusted with the task of, teaching of laying down curriculum or courses, of formulating admission policy, prescribing recruitment rules for the teaching staff etc. Affiliation and disaffiliation are some of the privileges which a University grants under law, This affiliation is basically an association of two Corporate Bodies and is distinct from "right to Association" contemplated by Article 17 of the Constitution of Islamic Republic of Pakistan, 1973. It is not a right created by any Constitutional provision. It is a right which does not flow from right to education. It is, therefore, not a fundamental right. It is a right created by a Statute. Merely because a college has been disaffiliated from a University through an enactment would not be derogatory to the fundamental rights provision of the Constitution.

D.A.V. College, Jullundur v. The State of Punjab and others. AIR 1971 SC 1737 ref.

(f) University of Health Sciences Ordinance (LVIII of 2002)‑‑‑

‑‑‑‑Ss.5 & 37‑‑‑Jurisdiction of the University‑‑‑Affiliation of Medical Institution with the University‑‑‑Provision of S.5, University of Health Sciences Ordinance, 2002 empowers the Provincial Government to exempt some of the Institutions from the purview of S.37 of the said Ordinance whereas the latter provision makes it mandatory for those Institutions to affiliate.

(g) University of Health Sciences Ordinance (LVIII of 2002)‑‑‑

‑‑‑‑Ss.37 & 5‑‑‑Constitution of Pakistan (1973), Arts.17 & 91‑‑‑Vires of affiliation of Medical Institutions with the University of Health Sciences‑‑­University and the Government concerned had been vested with power to affiliate or disaffiliate and to exempt or not to exempt an institution from affiliation or disaffiliation‑‑‑Provisions of University of Health Sciences Ordinance, 2002 vesting such powers to the Government and the University were not discriminatory or violative of fundamental rights.

Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Miss Benazir Bhutto and another v. Federation of Pakistan and another PLD 1989 SC 66 and Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 distinguished.

(h) University of Health Sciences Ordinance (LVIII of 2002)‑‑

‑‑‑‑Ss.37 & 5‑‑‑General Clauses Act (X of 1897), S.20‑‑‑Prospectus of the Government Medical Colleges in the Punjab (2002‑2003), paras. 6 & 7‑‑­Affiliation of Medical' Institutions with the University of Health Sciences‑‑­Legitimate ' expectation, principle of‑‑‑Applicability‑‑‑Contention of the students studying in such Medical Institutions was that since at the time of admission it was provided in the Prospectus that at the conclusion of their five years professional c6urse, they would be issued a Degree from the University of Punjab, therefore, they had legitimate expectation to remain associated with the said University‑‑‑Validity‑‑‑Prospectus was an administrative instruction which might have a force of law but if such administrative instruction was superseded by a statutory provision viz. University of Health Sciences Ordinance, 2002, the latter had to prevail‑‑­Provisions of General Clauses Act, 1897 could not have primacy over the special law‑‑‑Principles.

Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223 ref.

(i) University of Health Sciences Ordinance (LVIII of 2002)‑‑‑

‑‑‑‑S.37‑‑‑University of the Punjab Act (IX of 1973), Ss.5 & 7‑‑‑Bahauddin Zakariya University Act (III of 1975), Ss.5 & 7‑‑‑Islamia University of Bhawalpur Act (IV of 1975), Preamble‑‑‑Provisions of S.37, University of Health Sciences Ordinance, 2002 may not be in accord with the provisions of Ss.5 & 6 of University of Punjab Act, 1973, Ss.5 & 7 of Bahauddin Zakariya University Act, 1975 and related provisions of Islamia University Bahawalpur Act, 1975 insofar as Medical Institutions were concerned, but the law makers having decided to set up a Specialist University of Health Sciences and to the extent of the latter Ordinance, the provisions of the former three laws shall stand impliedly repealed.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court would not enter into the policy making domain of the State or question the legislative wisdom.

Muhammad Iqbal Rafi v. The Province of Punjab, Lahore and others 1986 SCMR 680 and Prof. Noor Muhammad Khan Marwat, Principal, Lucky Marwat College of Education and Research, Lakki Marwat v. Vice‑Chancellor, Gomal University, Dera Ismail Khan and 2 others PLD 2001 SC 219 ref.

(k) University of Health Sciences Ordinance (LVIII of 2002)‑‑‑

‑‑‑‑S.37‑‑‑Affiliation of Medical Institution with the Health Sciences University‑‑‑Mandate of S.37, University of Health Sciences Ordinance, 2002 was explicit and all Medical Institutions whether affiliated with the University or not had to affiliate with the University of Health Sciences.

(l) University of Health Sciences Ordinance (LVIII of 2002)‑‑‑

‑‑‑‑S.37‑‑‑University of the Punjab Act (IX of 1973), S.38‑‑-Grant of affiliation to Medical Institutions by the Punjab University after the enforcement of the University of Health Sciences Ordinance, 2002 notwithstanding the provision of S.37, University of Health Sciences Ordinance, 2002‑‑‑Vice‑Chancellor of the Punjab University withdrew the affiliation granted to the said Institutions under S.38, University of the Punjab Act, 1973‑‑‑Validity‑‑‑Affiliation granted by the Punjab University being in derogation to the mandatory provision, of University of Health Sciences Ordinance, 2002 was void and order of withdrawal of said affiliation by the Punjab University became inconsequential‑‑‑Act of the University of the Punjab or the respective colleges who sought affiliation with the Punjab University should not prejudice the case of students of said colleges‑‑‑Examination forms for the students of said colleges shall, therefore, be accepted by the University of Health Sciences and, those students shall be allowed to ‑appear in terms of the arrangement as agreed upon by the respective parties and in the meanwhile University of Health Sciences shall entertain the application of these colleges for the grant of affiliation and as their eligibility qua affiliation had already been determined by the University of the Punjab, they shall be granted the requisite affiliation in the same terms they had with the University of the Punjab i.e. provisional or permanent affiliation as the case may be.

(m) University of Health Sciences Ordinance (LVIII of 2002)‑‑‑

‑‑‑‑Preamble‑‑‑Establishment of University of Health Sciences‑‑‑Vision is dynamic and the declared objectives appeared to be noble‑‑‑High Court upheld the University of Health Sciences Ordinance, 2002 and creation of Specialist University of Health Sciences established thereunder‑‑‑While emphasizing the need of advancement in professional knowledge, change in national outlook and national priorities in view of Islamic history, about intellectual advancement, High Court hoped that the cause was backed by the requisite dedication and resources both.

(n) University of Health Sciences Ordinance (LVIII of 2002)‑‑‑

‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Arts. 17 & 9‑‑‑University of Health Sciences Ordinance, 2002 was not ultra vires the Constitution of Pakistan or the Pakistan Medical and Dental Council Ordinance, 1962‑‑­University of Health Sciences had been validly established and no exception could betaken to the same whatsoever.

(o) University of Health Sciences Ordinance (LVIII of 2002)‑‑‑--

‑‑‑‑Ss.5 & 37‑‑‑Catstitution of Pakistan (1973), Art.143‑‑‑Jurisdiction of Health Sciences University‑‑‑Exemption of Medical Institutions from affiliation‑‑‑Subject to Art.143 of the Constitution of Pakistan, all the medical institutions under the administrative control of the Provincial Government and the medical institutions in the private sector in the territorial limits of Punjab are under a mandate of the new law to affiliate with the University of Health Sciences within such time and on such terms and conditions which may be prescribed subject of course to the power of the Provincial Government to exempt any medical institution in terms of S.5 of the said Ordinance‑‑‑Order of exemption of King Edward Medical College, Lahore and Fatima Jinnah Medical College, Lahore is, therefore not without lawful authority.

(p) University of Health Sciences Ordinance (LVIII of 2002)‑‑‑

‑‑‑‑S.37‑‑‑Affiliation of Medical Institution with University of Health Sciences‑‑‑Letter issued by Vice‑Chancellor of the University declaring the Medical Institutions to be deemed to have been affiliated‑‑‑Validity‑‑‑Letter dated 2‑12‑2002 issued by the Vice‑Chancellor of University of Health Sciences, insofar as it declares the medical colleges to be deemed to have been affiliated, is without any lawful authority‑‑‑Letter shall be considered merely as an intimation to the Medical Institutions concerned about gee change in law qua affiliation and an invitation to comply with the mandate of law‑‑‑Intimation sent by the Principals of the Medical Colleges Institutions would be treated as applications for affiliation and the latter shall pass appropriate orders for affiliation if it has not already been passed, without further loss of time in terms of S.37 of the University of Health Sciences Ordinance, 2002.

(q) University of Health Sciences Ordinance (LVIII of 2002)‑‑‑

‑‑‑‑S.37‑‑‑Affiliation of Medical Institutions with University of Health Sciences‑‑‑All the private medical colleges which were granted affiliation (provisional or permanent) by the University of Punjab after the promulgation of University of Health Sciences Ordinance shall be granted similar nature of affiliation forthwith which they enjoyed with the University of Punjab so that the students may not suffer‑‑‑Concerned colleges shall apply to the University of Health Sciences within a week‑‑‑Said colleges having acquired affiliation with the University of Punjab after the enforcement of the Ordinance, having not availed the privilege of affiliation for long and had to disaffiliate by operation of law, the University of Punjab shall consider the question of refund of their affiliation dues if an application was made in this behalf.

(r) University of Health Sciences Ordinance (LVIII of 2002)‑‑‑

‑‑‑‑S.37‑‑‑Pakistan Medical and Dental Council Ordinance (XXXII of 1962), S.11‑‑‑Affiliation of Medical Institutions with University of Health Sciences‑‑‑Examination and award of degrees‑‑‑Agreement between‑ the University of Health Sciences and University of the Punjab‑‑‑Requisite notification qua recognition of the medical qualification in terms of S.11 of Pakistan Medical and Dental Council Ordinance, 1962 being still awaited the University of Health Sciences and University of the Punjab, by way of interim arrangement, had agreed that the former shall be an examining body for the fourth year (3rd professional) and final M.B.,B.S. and 3rd and 4th year of BDS and the latter shall award degrees.

Messrs Aitzaz Ahsan, Iqbal Mehmood Awan, Uzair Karamat Bhandari, Ejaz Ahmad Chadhar, Sehram Sarwar Chaudhry, Mehmood A. Sheikh, Ahmad Farooq Malik, Munib Iqbal, Salman Akram Raja and Salman Mansoor for Petitioners.

Syed Shabbar Raza Rizvi, A.‑G., Punjab and M. Bilal Khan, Addl. A.‑G. for the Government of the Punjab with Ijaz Farrukh, Senior Law Officer, K.E.M.C., Lahore for Respondents.

Dr. A. Basit, Legal Advisor for University of the Punjab.

Abid Hassan Minto and Syed Mansoor Ali Shah: Amicus curiae.

Abdul Hafeez Peerzada and Najamaul Hassan Kazmi for University of Health Sciences.

Muhammad Farid Chaudhry for Allama Iqbal Medical College, Lahore.

Malik M. Pervaiz Akhtar, Dy. Attorney‑General for Pakistan (on Court's Call).

Dates of hearing: 24th, 25th, 26th, 27th, 30th June; 1st, 2nd, 3rd, 4th and 8th July, 2003.

JUDGMENT

TASSADUQ HUSSAIN JILANI, J.‑‑‑This judgment shall dispose of the following Constitutional petitions as common questions of law and fact are involved. These petitions can be placed in two categories i.e. those which have been filed by the students of medical institutions/colleges which stood already affiliated with University of the Punjab or Bahauddin Zakariya University, Multan prior to the promulgation of University of Health Sciences Ordinance, 2002 and petitions filed by students or colleges in the private sector which were affiliated with the University of the Punjab after the promulgation of the UHS Ordinance. These petitions are as follows:‑‑

CATEGORY‑I.

| | | | | --- | --- | --- | | S.No. | Case No. | Who filed it | | 1 | W.P. No.7281/2003 | Filed by students of Allama Iqbal Medical College, Lahore studying in the Final Year of M.B.,B.S. | | 2 | W.P. No.8034/2003 | Filed by 2nd year, 3rd and 4th year students of BDS in' De Mongtmorency College of Dentistry, Lahore. | | 3 | W.P. No.8636/2003 | Filed by 4th year students of Allama Iqbal Medical College, Lahore. | | 4 | W.P. No.2643/2003 | Filed by a student of M.B.,B.S. final year in‑the Nishter Medical College, Multan. | | 5 | W.P. No.9717/2003 | Filed by students of 4th year M.B.,B.S. in Nishter Medical College, Multan (fixed and heard on 9‑7‑2003). | | 6 | W.P. No.8389/2003 | Filed by students of final year and 4th year M.B.,B.S. studying in Allama Iqbal Medical College, Lahore. | | 7 | W.P. No.9035/2003 | Filed by Final year students of M.B.,B.S. in Nishter Medical College, Multan. |

CATEGORY‑II

| | | | | --- | --- | --- | | 8 | W.P.No.5594/2003 | Filed by students of Fatima Memorial Hospital College of Medicine and Dentistry, Lahore. | | 9 | W.P. No.6309/2003 | Filed by Lahore Medical and Dental College, Lahore. | | 10 | W.P. No.7407/2003 | Filed by the students of the old first year BDS of Fatima Memorial Hospital College of Medicine and Dentistry, Lahore. | | 11 | W.P. No.8193/2003 | Filed by final year M.B.,B.S. students of Punjab Medical College, Lahore. | | 12 | W.P. No.6310/2003 | Filed by a final year student of Lahore Medical and Dental College, Lahore. | | 13 | W.P. No.7343/2003 | Filed by Lahore Medical and Dental College, Lahore. | | 14 | W.P. No.8755/2003 | Filed by students of 1st year, 2nd year, 3rd and 4th year students of M.B.,B.S. in Punjab‑Medical College, Faisalabad. | | 15 | W.P. No.5565/2003 | Filed by Fatima Memorial Hospital College of Medicine and Dentistry, Lahore. Petitioner has also challenged the Notification dated 26‑6‑2003 issued by the Government of the Punjab exempting King Edward Medical College, Lahore and Fatima Jinnah Medical College, Lahore from the purview of University of Health Sciences Ordinance, 2002. |

1. Through these Constitutional petitions petitioners have challenged the vires of the University of Heath Sciences Ordinance, 2002 (Ordinance No.LVIII of 2002 to be hereinafter called the UHS Ordinance) which has established a University of Health Sciences to be housed in the premises of Sheikh Zayed Hospital, Lahore with the declared objectives and powers, inter alia, of imparting Instructions in research, prescribe courses of studies in medical institutions to be affiliated with it, hold examinations, confer degrees and attend to other matters enumerated in section 4 of the UHS Ordinance.

After going through the petitions, the written statements filed and after initial hearing of petitioners' learned counsel, following issues cropped up for consideration:‑‑

(i) Whether the provisions regarding recognition and affiliation stipulated in the University of Health Sciences Ordinance are violative of the Pakistan Medical and Dental Council Ordinance, 1962 (NO.XXXII of 1962). If so, to what effect?

(ii) Whether the letter (dated 2‑12‑2002) issued by the Vice‑Chancellor, University of Health Sciences is violative of the spirit of UHS Ordinance particularly with reference to section 37 of the Ordinance?

(iii) Whether the provisions relating to affiliation are violative of fundamental rights provisions of the Constitution of Islamic Republic of Pakistan?

(iv) Whether the petitioners have a right to be examined by the University of Punjab in view, of the principle of legitimate expectation?

(v) Whether the respondents are estopped to direct compulsory affiliation of Government Medical Colleges of Punjab notwithstanding the earlier affiliation contemplated in the Prospectus of the Government Medical Colleges in the Punjab?

(vi) Whether the letter issued by the Vice‑Chancellor of University of Health Sciences directing compulsory affiliation of all medical colleges in the Province of Punjab without complying with the conditions stipulated in the Ordinance and at a stage when the petitioners are in the final phase of their professional degree is in accord with equity and standards of reasonableness as laid down by the august Supreme Court with regard to the exercise of administrative authority?

(vii) Whether section 37 of the University of Health Sciences Ordinance could have retrospective application in the facts and circumstances of this case?

(viii) Whether the concept of compulsory disaffiliation contained in the University of Health. Sciences Ordinance pursuant to which the impugned letter was issued by the Vice‑Chancellor is violative of the University of Punjab Act and the Calendar framed thereunder. If so, to what effect?

1. Mr. Aitzaz Ahsan, learned counsel for petitioners in Writ Petition No.7281 of 2003 submitted as under:‑‑

(i) That the petitioners have studied three to fours years in pursuing the ­M.B.,B.S. course, they have cleared their 1st 2nd and 3rd years Professional Examinations in the hope that their final year examination shall be conducted and Degree shall be awarded by the University of the Punjab which has international recognition. The said University has a history of academic excellence stretching over more than a century. To deprive these students, the honour of appearing in the final M.B.,B.S. Professional Examination from the said University, would be unfair and against the canons of equity. He added that the petitioners would not be content merely in acquiring the M.B.,B.S. degree but they would like to pursue their higher education abroad and from this Province only the University of the Punjab has recognition. He added that to appear for ECMFG Examination (which is. a universally recognized Degree in Medicine), a student must have at least four credit years in. attendance at a medical school that is listed in the International Medical Educational Directory. The registration of General Medical Council also requires a degree from the University of the Punjab and the newly created University of Health Sciences does not enjoy such status. The, net effect, he added, would be that with the M.B.,B.S. degree awarded by the University of, Health Sciences, they would not be able to get admission in a well‑recognized University abroad.

(ii) That the letter dated 2‑12‑2002 of the Vice‑Chancellor of the University of Health Sciences, Lahore to the Medical colleges/institutions in the Punjab, insofar as it declares those colleges to stand affiliated with the University of the Health Sciences in the purported exercise of powers under the Ordinance is ultra vires of the Ordinance itself. The impugned letter issued by the Vice‑Chancellor reflects an undue haste which is against the scheme of the new Ordinance.

(iii) That the newly promulgated Ordinance lays down an elaborate procedure for affiliation of a. medical institution and the Vice­ Chancellor neither has the authority to proceed in derogation to those mandatory provisions nor can he pre‑empt the competent body under the Ordinance to perform its function in matters of affiliation. The law does not countenance automatic affiliation of medical institution as is sought m. be achieved by the impugned letter. Section 34(iv) read with section 57 and Statutes of University of the Health Sciences Ordinance, inter alia, contemplate composition of an Affiliation Committee which has to examine/deal with the issues of affiliation and disaffiliation for ultimate consideration by the

(v) That recognition of a medical degree is governed by section 11 of the Pakistan Medical and Dental Council Ordinance, 1962 and the Schedule made therein whereas recognition of a degree awarding institution is governed by section 22‑A of the said Ordinance. The afore‑referred two provisions relate to two different situations and have respective procedures. In the case of the respondent University none of those procedures have been followed.

(vi) That the matters of recognition of medical institutions or the Degree/qualification which those; institutions may award, fall within the exclusive jurisdiction of Pakistan Medical and Dental Council established under the. Pakistan Medical and Dental Council Ordinance, 1962. The manner in which the respondent‑University has obtained recognition from the Pakistan Medical and Dental Council i.e., it was granted the same day when it was applied, indicates that respondent's application was never considered by the Council and the letter of recognition was issued by Secretary of the said Council who had no authority to issue that. The Council while considering the application has to see. inter alia, the facilities available in the institution which seeks recognition, the faculty of the said institution, the Campus and other essential facilities. All these conditional ties, it was contended, are non‑existent in case of the respondent‑University;

(vii) That the 'curriculum', 'medical' and 'professional education' are subjects" in the Concurrent Legislative List contained in the Fourth Schedule to the Constitution of the Islamic Republic of Pakistan, 1973. Both the Federal and Provincial Legislature can legislate on subjects listed in Concurrent List. But in case of a conflict the provisions of Federal Statute have to prevail in view of Article 143 of the Constitution.

(viii) That the departmental construction of the Ordinance shows that it has to have prospective effect and it cannot be made applicable retrospectively so as to compulsorily affiliate the existing medical institutions.

(ix) That the exemption of the King Edward Medical College, Fatima Jinnah Medical College, Lahore and Army Medical College, Rawalpindi from the purview of the University of Health Sciences Ordinance, shows that the Ordinance is being. selectively applied and that the petitioners' colleges have been discriminated against. The selective application of law is violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.

(x) That various provisions of the Ordinance and the letter issued by the Vice‑Chancellor under the purported exercise of the said Ordinance are violative of Articles 9, 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. The right to life includes right to education and seek higher education. The right to chose: a profession includes the right to have a professional University of choice so that the citizens can pursue higher studies to ensure career advancement. When the petitioners were granted admission in the medical colleges, the Prospectus issued by the Government of the Punjab for admission in the medical colleges in the Punjab inter alia specifically provided that on completion of study they shall be granted a Degree to be issued by the University of the Punjab. This vested right, it was contended, cannot be withdrawn in view of settled principle of locus poenitentiae. In support of the submissions made learned counsel relied on Pakistan v. Hussain Ali PLD 1960 Supreme Court (Pak.) 310, Chairman, Selection Committee/ Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 and Mst. Attiya Bibi Khan and others v. Federation of Pakistan through Secretary of Education, Ministry, of Education, Civil Secretariat, Islamabad and others 2001 SCMR 1161.

(At the end Mr. Aitzaz Ahsan voiced petitioners' apprehension that they might be victimized for having filed these petitions. Mr. Abdul Hafeez Pirzada immediately responded that the fears are ill‑founded and assured that the respondent‑University shall always proceed with institutional and parental approach. The Court observed that the statement made by Mr. Pirzada should he enough to allay the apprehension of the students).

1. Learned counsel for the petitioners in Writ Petitions Nos.8636 of 2003 and 8389 of 2003 (Mr. Ijaz Ahmad Chadhar, Advocate) adopted the arguments of Mr: Aitzaz Ahsan, Advocate.

2. Learned counsel for the petitioners in Writ Petition No.8193 of 2002 (Mr. Sehram Sarwar, Advocate) and in Writ Petitions Nos.8034, 7343, 6309 and 6310 of 2003 (Mr. Iqbal Mehmood Awan, Advocate), also adopted the arguments of Ch. Aitzaz Ahsan. Advocate but made following additional submissions:‑‑

(i) That three Ordinances were issued in the year 2002 besides the University of Health Sciences Ordinance through which three Medical Universities have been created. Those Ordinances are Ordinance No.LXXVI of 2002 (PLD 2003 Central Statutes Supplement 216) whereby Riphah International University was created at Islamabad and Ordinance No.LXXXVIII of 2002 establishing Foundation University at Islamabad (PLD 2003 Central Statutes Supplement 310). The University of Health. Sciences, therefore, cannot claim exclusivity. De Mongtmorency College is a very old Institution which was created. in the year 029, it was affiliated with the University of the Punjab in 1934 where most of the subjects are taught in the Kind Edward Medical College, Lahore. Compulsory affiliation of petitioner’s College (De' Mongtmorency College) and the exemption of King Edward Medical College, Lahore would create an anomalous situation.

(ii) That the Academic Council of the King Edward Medical College had passed a unanimous resolution opposing the affiliation of the College with the University of Health Sciences.

1. Mr. Abid Hassan Minto, Advocate has appeared as an amicus curiae submitted as under:‑‑

(i) That the Ordinance has not been enacted in the manner such laws are mostly made. It reflects deficiency and contradictions. For instance no date of the establishment of the University is given in the Ordinance, it stipulates creation of various bodies but there is nothing to indicate whether those bodies have been created i.e. the Board of Governors, Syndicate: Executive Committee, Registrar and Controller. Unless the University and its bodies are established, the University cannot function not to speak of issuing directions for the affiliation of other colleges.

(ii) That in. absence of proper establishment of the University in terms of the Ordinance, a Vice‑Chancellor designate cannot exercise the powers vested in the office of the Vice‑Chancellor.

(iii) That in terms of section 5 of the University of Health Sciences Ordinance, the respondent‑University can exercise powers within the limits of the Province of the Punjab and in respect of "the constituent colleges" only. The expression "constituent colleges" has been defined in section 2(x) which, means "a college maintained and administered by the university". The medical colleges which are sought to be affiliated through the Ordinance or impugned letter issued by the Vice‑Chancellor are admittedly not the "constituent colleges" of this newly created University and, therefore, it cannot direct them to affiliate with it. The impugned letter is, therefore, ultra vires of the Ordinance itself.

(iv) The University under subsection (2) of section 5 of the Ordinance can admit to its privileges, a medical institution within territorial limits of another University provided the said University consents to it and the Government also accords sanction. In absence of these two conditionalities, no institute or a college can be admitted to the privileges of this newly created University.

(v) That under section 7 (of the University of Health Sciences Ordinance), the University has to prescribe various courses and curriculum before it assumes status of a degree awarding institution. Admittedly, no such courses or curriculum have beer, prescribed by the University so far. The college and the teaching institutions which the respondent‑University wishes to affiliate with itself, already stood affiliated with the established Universities in Punjab. Where there are more than two Universities, the choice has to be that of the student. At the time of their admission the students were given to understand that they were affiliated with a particular University and after successful completion of their course, they will be awarded degree of the said University. This invitation cannot be withdrawn.

(vi) That sections 12 and 13 of the Ordinance deal with the office of the Vice‑Chancellor and his powers. These sections do not authorize him to direct affiliation of a college or to grant any privilege to it. The emergency powers stipulated in subsection (2) of section 13 of the Ordinance can be exercised by the Vice‑Chancellor only in case of the existence of emergency as an objective reality and not as per his subjective perception. This, therefore, would require him to give reasons while exercising such an emergent power. In the impugned letter issued by the Vice‑Chancellor, neither any reference has been made to the existence of an emergency nor he has given any reasons for issuing that letter. Even otherwise, this power can be exercised with regard to only those matters which fall within the domain of the Board of Governors under the. Ordinance as after passing an order under this provision, the Vice‑Chancellor has, to refer the matter to the Board for approval in terms of subsection (2) of section 13 of the Ordinance. The question of affiliation or disaffiliation of Medical institutions has to be decided by the Syndicate and the Vice‑Chancellor could not have issued the letter.

(vii) That the Ordinance has created a University of Health Sciences, has spelt out its jurisdiction in various provisions but it has not abolished the other Universities and it does not contemplate exclusion of other bodies engaged in medical education and research. That is why the question of affiliation has been left to the institutions and the expression "seeking affiliation" has been used in section 37(2) of the UHS Ordinance. The law has been created for advancement of medical education which cannot be achieved by excluding other institutions and universities.

(viii) That the elaborate procedure laid down in the Ordinance for affiliation has a rationale behind it i.e. they were conscious of the fact that at the time of the promulgation of the Ordinance, a great majority of students would be pursuing their respective courses and they would have a legitimate expectancy of pursuing a professional degree to be granted by a University to which they stood affiliated at the time of their admission. Any forcible disaffiliation from one University and affiliation with the respondent‑University would be violative of their fundamental right to pursue a profession of choice.

1. Mr. Uzair Karamat Bhandari, Advocate appeared for petitioners in rebuttal (in W.P. No.7281 of 2003), made following submissions:‑‑

(i) That the principle of legitimate expectation is being canvassed not against the Legislature but with the assumption that the concept of affiliation in terms of section 37 of University of Health Sciences Ordinance is, not mandatory, but discretionary and petitioners having long affiliation with University of the Punjab had legitimate expectation that they would be awarded degree by the latter. The understanding given should be honoured.

(ii) That the Vice‑Chancellor of University of Health Sciences could not direct affiliation under the emergency power granted to him in terms of section 13(2) of the University of Health Sciences Ordinance. He placed reliance on Rehmatullah v. University of the Punjab and others PLD 1982 Lah. 411, University of the Punjab and 2 others v. Rehmatullah PLD 1982 Lah. 729, Muhammad Nadeem etc. v. University of Engineering and Technology NLR 1999 Civil 83, R v. North and East Devon HA (2000) 3 All ER.

1. Mr. Sulman Akram Raja, learned counsel for petitioners in W.P, Nos.5565 of 2003, 5594 of 2003 and 7470 of 2003 has made following submissions:‑‑

(i) That a combined reading of sections 5 and 37 of the University of Health Sciences Ordinance would indicate that an unguided power to the Government has been given and it has created an arbitrary scheme. These provisions of the Ordinance are, therefore, ex facie, discriminatory and violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. The arbitrary and selective application of these provisions is manifest from the issuance of notification dated 26‑6‑2003 vide which the King Edward Medical, Lahore and Fatima Jinnah Medical College, Lahore have been exempted by the Government of the Punjab from the purview of the afore‑referred Ordinance. These provisions, therefore, merit to be struck down in view of the law laid down in Waris Meah v. The State PLD 1957 Supreme Court 157, Khawaja Muhammad Safdar v. Province of West Pakistan PLD 1964 Lahore 718 and Shaukat Ali Mien v. The Federation of Pakistan 1999 CLC 607.

(ii) That the notification dated 26‑6‑2003 issued by the Governor of the Punjab in the purported exercise of powers under section 5(1) of the Ordinance is ultra vires of the law itself as such a power could only be exercised with respect to a "constituent college" and the institutions qua which the power has been exercised, admittedly, are not "constituent colleges" in terms of section 2, clause (18) of the University of Health Sciences Ordinance.

(iii) That affiliation of a College with any University is always a bilateral act, the various provisions of the Ordinance and sub­section (2) of section 37 itself would indicate that the expression "shall affiliate" has to be read as "may seek affiliation" and any other interpretation would make the provision arbitrary and, therefore, hit by Article 25 of the Constitution.

(iv) That the petitioner‑College was already affiliated with the University of the Punjab and the letter issued by its Vice‑Chancellor withdrawing the affiliation is neither backed by any provision of the University of the Punjab Act nor by the University of the Health Sciences Ordinance and is, therefore, not sustainable in law.

(v) That the petitioner‑College had to pay 1.4 million as affiliation fee and if the impugned letter is upheld, the Court may direct the University of the Punjab to refund the afore‑referred affiliation fee.

1. Mr. Ahmad Farooq Malik, learned counsel for the petitioners in W.P. No.9035 of 2003 adopted the arguments of Ch. Aitzaz Ahsan, Advocate. In W.P. No.8755 of 2003 Mr.Mehmood A. Sheikh, Advocate who represents four students of Punjab Medical College, Faisalabad, the vires of the letter issued by the Vice‑Chancellor of the University of Health Sciences have been challenged on the grounds that the latter had no power under the law to issue such a letter; that the Ordinance does not envisage retrospective application; that the Ordinance insofar as it interferes with the right to life and profession would be hit by Articles 9 and 18 of the Constitution of Islamic Republic of Pakistan, 1973, that section 37(1) is not mandatory and any other interpretation would offend the fundamental rights provision of the Constitution. Mr. Salman Mansoor, Advocate for petitioner in W.P. No.2643 of 2003 submitted written arguments mostly in line with the arguments of Mr. Aitzaz Ahsan, Advocate.

2. Syed Mansoor Ali Shah, learned amicus curiae made following submissions:‑‑‑

(i) That section 37 of the University of Health Sciences Ordinances is ultra vires of the scheme of the Ordinance insofar as it mandates that all medical institutions "shall affiliate with the University". The entire scheme of the Ordinance, according to him. stipulates a voluntary act on the part of the college seeking affiliation. Section 37(1) contemplates a "period", "such terms and conditions as may be prescribed" and the word "prescribed" in terms of section 2 means "prescribed by statutes, regulations or rules". Clause 11 of the Statute (of the First Schedule to the Ordinance in question) describes the composition of the Affiliation Committee. Clause 12 of the said Statute mandates that the Affiliation Committee shall advise the Syndicate, after inspecting the institute "seeking affiliation" and section 27 of the Ordinance pertains to the powers and duties of the Syndicate which, inter alia, include the power of affiliation or disaffiliation of medical institutions. The afore‑referred provisions provide an elaborate procedure of affiliation and disaffiliation in which the Vice‑Chancellor has no effective role to play. If the legislative intent is to be deciphered from various provisions of the Ordinance and if it has to be given effect in letter and spirit, the word "shall" in section 37 will have to be construed as "may". In this connection he referred to the doctrine of "reading down" which doctrine has found favour in American Constitutional law and has also been invoked by the Indian Supreme Court in Delhi Transport Corporation v. DTC Mazdoor Congress AIR 1991 Supreme Court 101).

(ii) That the letter issued by the Vice‑Chancellor to all medical institutions to the effect that they stand affiliated with the University of Health Sciences is ultra vires of the Ordinance itself in view of the various provisions to which reference has been made in the preceding paragraphs. The letter in question was issued by the Vice ­Chancellor under the purported exercise of the powers given under section 37(2) a bare reading of which would show that it is meant only for situations of emergency and that too for matters which fall within the purview of Board of Governors as any action taken under this provision has to be sent to the Board for approval.

(iii) That section 37 of the Ordinance insofar as it seeks mandatory affiliation of medical institutions, is violative of Articles 9, 17 and 18 of the Constitution of Islamic Republic of Pakistan; 1973, In support of this argument learned counsel relied on A.K. Brohi's Fundamental Law, at pages 309, 315, 317, 319 and 395 and the precedent case‑law reported in Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others PLD 1998 Supreme Court 1263, Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 Supreme Court 388, Sardar Farooq Ahmad Khan Leghari v. Federation of Pakistan and others PLD 1999 Supreme Court 57 and Mian Muhammad N4Waz Sharif v. President of Pakistan and others PLD 1993 Supreme Court 473.

(iv) That the letter dated 20‑5‑2003 issued by the Secretary of Pakistan Medical and Dental Council, in response to the request of the respondent‑University conferring recognition, is of no avail to the respondent‑University as there is no power with the Council to confer recognition to a medical institution. The power under section 11 is only with regard to conferring recognition to a medical qualification not included in the schedule of the Pakistan Medical and Dental Council Ordinance, 1962. The order issued, therefore, is ultra vires of the said Ordinance. He added that even for extending recognition to a medical qualification it is the Medical Council constituted under the said Ordinance which has to decide by a majority vote and the Secretary of the Council who has issued the letter cannot arrogate to himself the power of the Council the logical corollary of the afore‑referred aspect would be that the Pakistan Medical and Dental Council has so far not accorded recognition to the degree/qualification which the University of Health Sciences Ordinance wishes to confer for which purpose it has sought affiliation of various medical institutions in the Province of Punjab. Reliance was placed on Nighat Sultana v. University of Punjab through Vice‑Chancellor, Punjab University, Lahore and 2 others 2000 YLR 511, Seena International Medical College through Director v. Government of N.‑W.F.P. through Chief Secretary and 2 others 1999 SCMR 2110, Akhtar Ali Javed v. Principal, Quaid‑e‑Azam Medical College, Bahawalpur 1994 SCMR 532 and Muhammad Hamid Shah v. Pakistan Medical and Dental Council through Secretary and 4 others 1996 SCMR 1101.

(v) That the so‑called letters of consent from the Principals of various medical institutions to the Vice‑Chancellor of the University of Health Sciences is not a consent contemplated under the Ordinance and the relevant laws as the Principal has no jurisdiction to issue such a letter. It would be the Academic Council which has to decide the issue and two Academic Councils of Premier Medical Institutions of Punjab have already conveyed their dissent to affiliate with the University of Health Sciences. Those institutions are, King Edward Medical College, Lahore and Fatima Jinnah Medical College, Lahore.

(vi) That an examination of the laws in paramateria with the Ordinance (University of Health Sciences Ordinance) would indicate that those laws have made affiliation to be a consensual affair, with the institution which seeks affiliation and there compulsion whatsoever, He referred to section 25 of the University of Punjab Act, 1973 which stipulates that the Syndicate shall decide the question of affiliation or disaffiliation. He added that during the same period when the Ordinance, under challenge, was promulgated, three other Ordinances creating Universities were enacted and all these Ordinances specifically mandate that the Universities so established shall not affiliate any college or institution for a period of ten years. Those Statutes are as under:‑­

(i) Ordinance No.LIX 2002 (section 5), Hajvery University, Lahore.

(ii) Ordinance No.LX 2002 (section 5), University of Faisalabad.

(iii) Ordinance No.LXI 2002 (section 5), University of Lahore.

(vii) That under the well‑settled principle of interpretation of statutes, the expression 'shall' appearing in a particular provision of law has to be read as 'may' if the intention of the law maker as reflected in various provisions of the Ordinance is to be given effect to. More so when violation of an apparently mandatory provision is not visited with a penalty under the law.

(viii) That the objective of an Ordinance under challenge has not been spelt out in its preamble. In the presence of two bodies created by the Pakistan Medical and Dental Council Ordinance, 1962 and Pakistan College of Physicians and Surgeons Ordinance, 1962, there was no need for promulgating the Ordinance in question. The written statement filed by the respondents, he contended, is no substitute for the preamble and in any case `it does not provide any guideline to the objective of the Ordinance.

(ix) That any compulsory affiliation as is sought to be achieved by the respondent‑University under the purported exercise of section 37(1) of the University of Health Sciences Ordinance would be violative of Articles 9 and 18 of the Constitution. Article 9 of the Constitution is relatable to right to life and the Courts have accorded progressive interpretation to it. The right to life has been extended to include right to clean environment right to travel, right to livelihood and right to education. Right to education would include the right to have education of choice which would mean right to have a Degree of choice and right to pursue a profession of choice. The University Degree is likely to affect their right to further education and their right of career and professional advancement. Any compulsion to affiliate with a University not of their choosing, therefore, would be violative of these fundamental rights. In support of the submissions, he relied on Manika Gandhi v. Union of India AIR 1978 Supreme Court 597, Bandhua Mukti Mocha v. Union of India AIR 1984 Supreme Court 802, Unni Krishnan, J.P. v. State of AP AIR 1993 Supreme Court 2178, Ms. Shehla Zia and others v. WAPDA PLD 1994 Supreme Court 693, Rahimyar Khan College of Education v. Islamic University, Bahawalpur 1996 CLC 64 and Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291.

(x) That right to form an association is a fundamental right enshrined in Article 17 of the Constitution. Affiliation stems from right to associate as it is a consensual arrangement between the two institutions. It contemplates a relationship and right of association. And, the right to association includes the right not to associate. Any provision of law providing for compulsory association/affiliation is, therefore, ultra vires or this Article. He relied on Abut Ala Maudoodi v. Government of West Pakistan PLD 1964 SC 673, Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416, Mrs. Benazir Bhutto and another v. Federation of Pakistan and another PLD 1989 SC 66, Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 and Damyanti v. Union of India AIR 1971 SC 966.

(xi) That the beneficiaries of affiliation are the students. They are the stake holders, they were the ones who, at the time of admission to the respective medical institutions, were given to understand that they stood affiliated with a particular University and that at the end of their five years' professional course they will be granted the Degree by the said University. At this belated stage, they cannot be disaffiliated from the University of their choice and affiliated with the respondent‑University without their consent. He however, conceded, on Court query, that the consent of students and the medical institutions for purposes of affiliation could. be expressed and conveyed by the Academic Council or now by the Board of Governors constituted under section 3 of Ordinance VIII of 2002 (Punjab Medical and Health Institutions Ordinance, 2002), provided the best interest of the students are kept in view by the Board;

(xii) That an individual could surrender fundamental right in public interest and if the law so provides. The law under challenge is silent as to what public interest it seeks to promote which should oblige the petitioners‑students to barter away their rights. The written statement, he contended, is no improvement over the law under challenge insofar as this aspect is concerned. He also alluded to the report of the Commission headed by Mr. Justice (R) Ghulam Mujaddid Mirza regarding the establishment of the respondent­ University and its working.

1. Dr. A. Basit, learned Legal Advisor for University of the Punjab submitted as under:‑‑

(i) That the Vice‑Chancellor of University of the Punjab disaffiliated certain medical Institutions in terms of the order dated 28‑4‑2003 persuant to a direction issued by the Governor of the Punjab/Chancellor. He, however, conceded that there is an elaborate procedure for disaffiliating a college in the University of the Punjab Act, 1973 and the Vice‑Chancellor could not have issued the afore ­referred order under the said Act. He further conceded, on Court query, that although the order was passed by the Vice‑Chancellor under the purported exercise of section 15(2) of the University of the Punjab Act which stipulates existence of emergency but there is no reference to the emergency in the order in question. He added that the Vice‑Chancellor of the University of the Punjab had issued the afore‑referred letter in reference to the Chancellor's opinion/desire but was fully conscious of the mandate of law.

(ii) That the University of Health Sciences Ordinance, 2002 is a valid piece of legislation and is not ultra vires of the Constitution.

(iii) that the expression 'shall affiliate' appearing in section 37 of University of Health Sciences Ordinance is mandatory insofar as the requirement for fulfilling the conditions relatable to affiliation are concerned but is not mandatory insofar as the act of affiliation is concerned. The expression 'shall' he added is qualified by the subsequent expression 'within such period and on such terms and conditions as may be prescribed'.

(iv) That University of the Punjab is of the view that it has power under the University of the Punjab Act to affiliate and disaffiliate including medical institutions and any contrary interpretation would not be in consonance with the objective of the higher education which the University seeks to pursue.

(v) That the direction of the President of Pakistan to which reference has been made in Governor of Punjab's letter dated 24‑4‑2003 is a departmental construction of section 37 of the University of Health Sciences Ordinance according to which those colleges/institutions which were affiliated after the promulgation of the University of Health Sciences Ordinance (with effect from 29‑9‑2002) should be disaffiliated and no further affiliation of medical institutions shall be carried out by any other University except the University of Health Science. The King Edward Medical College, Lahore is a constituent college of the University of the Punjab, the De'Mongtmorency College Dentistry is a faculty of the King Edward Medical College, Lahore and, therefore, would not fall within the purview of the newly created University i.e. the University of Health Sciences. (At this stage, the learned Additional Advocate.‑General Mr. M. Bilal Khan placed on record a copy of the letter issued by the Health Department, Government of the Punjab dated 26‑6‑2003 according to which, 'the De'Mongtmorency College of Dentistry is not a constituent College of King Edward Medical College, Lahore' as it has its own Principal, its own Faculty, its own Academic Council and has its own Campus).

(vi) That the medical colleges and institutions are regulated by the Pakistan Medical and Dental Council Ordinance, 1962. The Ordinance under challenge does not envisage any other authority in the medical institutions nor it lays down any curriculum for them and the only activity or function that it wants to assume is that of holding examinations for the professional degree of M.B.,B.S. The University of Health Sciences has no plan to recruit any new faculty either but even in this endeavour and desire to hold the examinations, the said University is pitted against heavy odds both by lack of experience and resources on account of which it has conveyed to the University of the Punjab that it cannot hold the final year M.B.,B.S. Examination for the current session and had requested the latter to hold the examinations itself.

(vii) That the University of the Punjab does not oppose the establishment of a Specialist University as has been created under the Ordinance in question but it must have the requisite resources, the requisite expertise and a certain amount of credibility at the national and international level to hold the examinations. He added that at present the qualification/Degree that it wants to confer i.e. M.B.,B.S. has not been recognized by the Pakistan Medical and Dental Council in terms of section 11 of the Pakistan Medical and Dental Council Ordinance, 1962;

(viii) That the concept of a Specialist University is not in consonance with the latest trends the world over as now it is generally felt that unless inter‑disciplinary facilities are available an institution/ University cannot carry out proper research and it is only a general University like the University of the Punjab which could pursue such an academic goal. Any attempt to isolate that medical institutions from the University of the Punjab would dampen the momentum of the research activity.

1. Mr. Abdul Hafeez Pirzada, Senior Advocate appearing for the University of the Health Sciences, while defending the impugned letter and opposing the petitions, submitted as under:

(i) That the Ordinance and the establishment of the University of Health Sciences has mostly been challenged by surrogates i.e. the students who do not have any vested right on questions of affiliation and disaffiliation. Their claim to continue their earlier affiliation (University of the Punjab or Bahauddin Zakaryia University) is not based on any representation made to them by the Government or any contract or on any statute. Hence it cannot be enforced through a Constitutional petition. He added that the students have not been asked to leave the medical colleges/institutions where they are pursing their medical studies. Neither `they have agitated this grievance. If a medical student has passed his professional degree from a particular college he will be known as a. medical graduate from that college for all times to come and the issuance of a Degree by a particular University is only a formality. None of the principles of estoppels are, therefore, attracted. Even otherwise there is no estoppel against law unless any fundamental right is violated. No challenge, therefore, can be thrown to the University of Health Sciences Ordinance; 2002 as it neither suffers from any substantive or procedural ultra vires;

In support of the submissions made, he relied on two unreported judgments of the august Supreme Court in C.P. No.996 of 2001 and C.P. No.1549 of 2001 and of Lahore High Court, Rawalpindi Bench, Rawalpindi in W.P. No.2455 of 2002.

(ii) That in the Constitution of Islamic Republic of Pakistan, 1973, with regard to the distribution of powers between the Centre and the Province only two lists were prepared i.e. the Federal and the Concurrent and the residuary powers were left with the Provinces. The subject of establishment of a University is not mentioned in the Concurrent List and is one of the residuary subjects over' which the Province has exclusive jurisdiction. Even the Executive Authority in terms of Article 97 of the Constitution of Islamic Republic of Pakistan, 1973 vests with the Province. No wonder that Universities have been established by the Provinces.

(iii) That a bare reading of sections 11, 20, 21 and 22 of the Pakistan Medical and Dental Council would show that Pakistan Medical and Dental Council cannot. extend recognition to medical institutions. Recognition which it accords is qua qualification and degree. The promulgation of the Ordinance under challenge and the resultant creation of the University of Health Sciences would, therefore, not be ultra vires of the afore‑referred Ordinance.

(iv) That although the petitioners do not have a vested right to have a University of their choice, the only ground being pressed to have a Degree from University of the Punjab is that it would have greater credibility abroad and, therefore, it would lead to their professional and career advancement. This desire, he contended, cannot be acceded to. Firstly, because the major expense on a medical graduate is borne by the State and the State should have a right to decide where a medical graduate should serve. Secondly, it is a poor country where the first duty of a medical graduate is towards his own country. In the national interest, the students may not be permitted to acquire a degree from abroad which may tempt them to settle there to the detriment of the domestic needs of the country.

(v) That the University of the Punjab carries out the exercise for holding examinations of about one lac fifty thousand students every year; that it is physically impossible for them to ensure transparency; that the complaints regarding conduct of examinations carried out by the University of the Punjab are on account of the fact that it has become impossible for the University to undertake such a gigantic task. It was one of the reasons for establishing a Specialist University. In an age of specialization such Universities are being set up everywhere;

(vi) That section 37 of the University of Health Sciences Ordinance has two parts i.e. section 37(1) relates to the existing institutions which had prior affiliation with the University of the Punjab and it stipulates that they shall stand affiliated with University of the Health Sciences whereas subsection (2) of the same section is relatable to those institutions which seek affiliation after the establishment of the University of Health Sciences Ordinance. The former is mandatory while the latter is discretionary.

(vii) That the University of Health Sciences Ordinance and the establishment of the new University of Health Sciences are bona fide actions of the law maker and even if there is some irregularity in the orders passed, this Court may not like to interfere as it is the bounden duty of this Court to enforce principles of policy enshrined in Article 38 of the Constitution as the entire exercise under challenge was motivated to give effect to these principles. In support of the submissions, he relied on Nazeer Ahmad etc. v. Muhammad Murad Ali PLD 1978 Lahore 930.

(viii) That the principle of legitimate expectation applies only to the matters of procedural propriety and cannot be invoked against a statute. It is the weakest form of the principle of estoppel. He added, that the law laid down in Al‑Jehad trust through Raeesul Mujahidin Habib Al‑Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others PLD 1997 Supreme Court 84 has been revisited by the august Supreme. Court in Supreme Court Bar Association through President and others PLD 2002 Supreme Court 939. None of the medical institutions/colleges were held out any representation qua affiliation and, therefore, the question of legitimate expectation does not arise. So far as the students are concerned, no representation was made by the respondent‑University of Health Sciences and if any representation was made by the Government of Punjab, the same cannot be pleaded as an estoppel against the Legislature.

(ix) The argument that University of Health Sciences may not have the requisite universal credibility which the University of the Punjab has, is premature and based on apprehensions. The question of recognition of the newly created University is a question of time and with the passage of time when it acquires credibility and recognition those apprehensions would wither away. There is always a starting point for a university, the big universities in the world always had their first day and the first phase. If the colleges and students similarly had agreed to be affiliated with Islamia University, Bahawalpur and Bahauddin Zakariya University, Multan, there can be no valid reason to find fault with the University of the Health Sciences.

1. Mr. Najamul Hassan Kazmi, learned counsel for University of the Health Sciences while supporting the submissions made by Mr. Abdul Hafeez Pirzada, Advocate, submitted as under:‑‑

(i) That the University of the Health Sciences has been established in response to and to resolve the various problems being faced in the domain of Health Sciences to arrest the declining standards of medical education and research. In this regard a comprehensive feasibility report was prepared which spells out various features of Health Sciences and its plans for the future. The feasibility report is at page 108 of the written statement.

(ii) That the argument canvassed by amicus curiae that without the constitution of the various bodies of the University of Health Sciences, the Vice‑Chancellor has started functioning is, factually incorrect. He referred to various notifications vide which the Academic Council, the Syndicate, the Bard of Governors were constituted and the Vice‑Chancellor was appointed. The letter issued by the Vice‑Chancellor of the University of Health Sciences, impugned in this petition, was a logical culmination of various decisions taken and it had prior approval of the Board of Governors.

(iii) That a tiny minority of the total student community engaged in pursuing the professional Degree of M.B.,B.S. have challenged the establishment of, the University of Health Sciences. No Governmental Medical College or Institution has challenged the Ordinance. He gave a break‑up of the total number of students in various years of the professional Degree and those who have challenged:‑‑

| | | | | --- | --- | --- | | | Total Students | Filed Petitions | | First Year | 1105 | 7 | | Second Year | 1257 | 1 | | Third Year | 1159 | 1 | | Fourth Year | 1159 | 67 | | Fifth Year | 1191 | 345 |

The afore‑referred break‑up, it was contended, demonstrates that all the students are not aggrieved and only a few have challenged the establishment of the new University.

(iv) That the Punjab Medical College, Lahore and the Fatima Jinnah Medical College, Lahore were affiliated after the promulgation of the Ordinance and, therefore, it reflects mala fides. This was brought to the notice of the Governor of the Punjab/Chancellor of the University of the Punjab who acting under section 11 of the University of the Punjab Act, directed that those be immediately disaffiliated.

1. We have heard learned counsel for the parties, have gone through the precedent case‑law and have given anxious consideration to the issues raised in these petitions:

ISSUE No.1:

Whether the provisions regarding recognition and affiliation stipulated in the University of Health Sciences Ordinance are violative of the Pakistan Medical and Dental Council Ordinance, 1962 (No.XXXII of 1962). If so, to what effect?

1. The Medical Council Ordinance, 1962 (Ordinance XXXII of 1962) was enacted as per in its preamble, "to consolidate the law relating to the registration of medical practitioners and dentists and reconstitute the Medical Council in Pakistan in order to establish a uniform minimum standard of basic and higher qualification in medicine and dentistry". To achieve this purpose, the Ordinance has, inter alia, created bodies, laid down conditionalities for recognition of a medical qualification and for registration of medical practitioner, spelt out procedure for decision‑making by the Medical Council and has made false representation before the Council, a penal offence. Some of the provisions which may be relevant for the case in hand are as follows:‑‑

Section 3 lays down the composition of the Council consisting of twelve members nominated, elected and ex officio. Section 8 provides that the quorum for the meeting of the Council shall be nine members and "all the acts of the Count all be decided by a majority of the members present and voting". Section 11 spells out the procedure for recognition of medical qualifications which various medical institutions may grant. It reads as under:

"11. Recognition of medical qualifications granted by medical institutions in Pakistan.‑‑(1) The medical qualifications granted by medical institutions in Pakistan which are included in the First Schedule shall be recognized medical qualification for the purpose of this Ordinance.

(2) Any medical institution in Pakistan which grants a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognized, and the Central Government, after consulting the Council, may, by notification in the official Gazette, amend the First Schedule so as to include such qualification therein.

(3) Such notification may also direct that an entry shall be made in the last column of First Schedule against such medical qualification declaring that it shall be a recognized medical qualification only granted after a specified date."

The University of Health Sciences, Lahore Ordinance (Ordinance LVIII of 2002), on the other hand, has been enacted to establish a Degree awarding University, power and goals of which are discernible from section 4 of the said Ordinance are as under:‑‑

"4. Powers of the University. ‑‑‑The University shall have the powers to---

(i) provide for instruction in such branches of learning, as it may deem fit and to make provisions for research and for the advancement and dissemination of knowledge in such manner as it may determine;

(ii) prescribe courses of studies to be taught in the medical institutions, affiliated and constituent colleges;

(iii) hold examinations and to award and confer degrees, diplomas, certificates and other academic distinctions to and on persons who have been admitted to and have passed its examinations under prescribed conditions;

(iv) confer, in the prescribed manner, honourary degrees or other academic distinctions on approved persons;

(v) confer degrees on persons who have carried on independent research under prescribed conditions;

(vi) provide for teaching specified courses of training for persons not being students of the University and grant certificates and diplomas to such persons;

(vii) affiliate or disaffiliate colleges and other medical institutions in the prescribed manner;

(viii) admit colleges, and other educational institutions to its privileges or withdraw such privileges in the prescribed manner;

(ix) inspect colleges and medical institutions, affiliated or seeking affiliation;

(x) accepted the examinations passed and the periods of study spent by the students of the University at other Universities, Colleges or places of learning as equivalent to such examinations and periods of study in the University, as it may determine, and to withdraw such acceptance; '

(xi) cooperate with other Universities and authorities in such manner, and for such purposes as it may determine;

(xii) institute Professorships, Associate Professorships, Assistant Professorships and Lecturerships and any other posts and to appoint persons thereto;

(xiii) create posts in connection with teaching research, publication extension, training and administration of its affairs and for any other related purposes and appoint persons thereto on such terms and conditions as it may determine;

(xiv) recognize as teachers such persons as it may deem fit;

(xv) institute and award fellowships, scholarships, bursaries, medals and prizes in the prescribed manner;

(xvi) establish institutes, colleges, departments, centres of advance studies; museums and other centres of learning for the development of teaching and research and to their .maintenance, management and administration as it may determine;

(xvii) control the residence of students of the University and to establish and maintain halls of residence and approve any place as hostel for lodging of students;

(xviii) supervise and control the discipline of students of the University, to promote the co‑curricular and recreational activities of students and to make arrangements for promoting their health and general welfare;

(xix) take disciplinary action against, and impose penalty on, students in the prescribed manner;

(xx) charge and receive such fees and other payments as it may determine;

(xxi) make provisions for research and advisory services Pad with these objects to enter into arrangements with other institutions, or with public or private bodies under prescribed conditions;

(xxii) enter into, carry out, vary or cancel contracts;

(xxiii) receive and manage property transferred and any grants, bequests, truss gifts, donations, endowments and other contributions made to the University and to invest any fund representing such property grants, bequests, trusts, gifts, donations, endowments or contributions in such manner as it may deem fit;

(xxiv) provide for the printing and publication of research and other words; and

(xxv) do all such other acts or things, whether incidental to the powers aforesaid or not; as may be requisite to further the objectives of the University as a place of education, learning and research;"

Section 5 of the Ordinance is relatable to the territorial jurisdiction of the University and reads as under:‑‑

"5. Jurisdiction of the University.‑‑(1) 'the University shall exercise the powers conferred on it by or under this Ordinance within the territorial limits in the Province of the Punjab and in respect of the constituent colleges:

Provided that Government may, in consultation with the University, by general or special order, modify the extent and scope of the aforesaid powers of the University with regard to such territorial limits or institutions.

(2) The University may admit to its privileges under prescribed conditions, a medical institution falling within territorial limits of another University, whether inside or outside Pakistan, provided that the consent of such other University and the sanction of Government is first obtained."

1. A comparative study of the two Statutes would show that while the Federal Law (Medical Council Ordinance, 1962) contemplates the creation of a Central Regulatory Authority for whole Pakistan (Medical Council) to establish a uniform minimum standard of basic and higher qualifications in medicine and dentistry", The Provincial Law (University of Health Sciences. Ordinance, 2002) seeks to establish a degree awarding University, with power to undertake, research, teaching, prescribe courses of studies to be taught in affiliated and constituent colleges. There may be overlapping in broad objectives of the two Ordinances but both envisage distinct institutions. However, the subject‑matter of both the laws fall within the ambit of Item 38 of the Concurrent List in the Fourth Schedule to the Constitution of Islamic Republic of Pakistan, 1973 which is as under:‑‑

"38. Curriculum, syllabus, planning, policy, centres of excellence and standards of education."

But, so far as the power to grant a Degree in some medical qualification is concerned, no University in Pakistan can issue a Degree in a medical qualification mentioned in the First Schedule to Ordinance XXXII of 1962 unless the said qualification has been accorded prior recognition in terms of section 11(1)(2) of the said Ordinance which, inter alia, contemplates recognition through a notification to be issued by the Federal Government after prior consultation with Medical Council established under the said Ordinance. This is true of the University of, Punjab; the other Universities similarly placed in Pakistan and University of Health Sciences is no exception. Article 143 of the Constitution of Islamic Republic of Pakistan, 1973 which underpins the primacy of a Federal Statute, stipulates as under:‑‑

"143. Inconsistency between Federal and Provincial Laws.‑‑‑If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of [Majlis‑e‑Shoora (Parliament)] which [Majlis‑e‑Shoora (Parliament)] is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of [Majlis‑e‑Shoora (Parliament)], whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law shall prevail and the Act of the Provincial Assembly, shall, to, the extent of the repugnancy, be void."

1. Both the learned counsel for the University of the Health Sciences did not seriously contest foregoing legal aspect and submitted that a reference is pending before the Federal Government and recognition would be accorded to the qualification/degree which the University is desirous to confer on the successful students of the colleges which stand affiliated with it.

2. As discussed above, the UHS Ordinance is not ultra vires of the Pakistan Medical and Dental Council Ordinance rather both supplement each other.

ISSUE NO.II:

Whether the letter (dated 2‑12‑2002) issued by the Vice‑Chancellor, University of Health Sciences is violative of the spirit of UHS Ordinance particularly with reference to section 37 of the Ordinance?

1. In the purported exercise of power under section 37 read with section 13(2) of the University of Health Sciences Ordinance, the Vice Chancellor of UHS sent the impugned letter dated 2‑12‑2002 to all the medical institutions in the Punjab, already affiliated with a University, that they stand affiliated with the University of Health Sciences. It reads as under:‑‑

"The Principal Executive Officers/Deans of:

(1) The King Edward Medical College, Lahore.

(2) The Allama Iqbal Medical College and Jinnah Hospital, Lahore.

(3) The Fatima Jinnah Medical College and Ganga Ram Hospital, Lahore

(4) The Nishter Medical College and Hospital,, Multan.

(5) The Quaid‑e‑Azam Medical College and BVH; Bahawalpur.

(6) The Punjab Medical College and Allied Hospital, Faisalabad.

(7) The Rawalpindi Medical College and Allied Hospitals, Rawalpindi.

(8) The Principal of De'Mongtmorency College of Dentistry Dental Hospital, Lahore.

(9) The Dean Institute of Public Health, Lahore.

(10) The Dean Post‑Graduate Medical Institute, Lahore.

(11) The Chairman, Post‑Graduate Medical Institute, Shaikh Zayed Hospital, Lahore.

Sub: Affiliation of Medical Institutions with the University of Heath Sciences, Lahore.

Dear‑Sir/Madam, I have the honour to inform you that consequent upon the promulgation of the University of Health Sciences Ordinance, 2002, notified by the Government of Punjab on September 28, 2002 and the resultant establishment of the University of Health Sciences, Lahore, all medical institutions (Medical Colleges, Dental Colleges/ Institutes/Nursing Schools/Public Health Institutions/Schools, Para Medical Schools/Medical Technicians Schools/Post‑Graduate Medical Institutes etc.) located within the geographical boundaries of the Punjab Province, whether affiliated with any other University/Examination Board/Medical Faculty or not up to, shall henceforth affiliate as per requirements of section 37 of the Ordinance with the University of Health Sciences, Lahore.

The existing institutions, above mentioned, operating within the Province of Punjab, already affiliated as on 28‑9‑20'J2 either with the University of the Punjab, Bahauddin Zakaryia University, Multan or Islamic University of Bahawalpur, need not undergo the ordeal of affiliation process afresh, I, therefore, in exercise of the powers vested in me under section 13(2) of the University of Health Sciences Ordinance, 2002 have decided that these institutions be deemed to have been ipso facto affiliated with this University, with immediate effect For other institutions affiliation proceedings may be initiated as per rules Application forms for the purpose may be obtained from the Office of Assistant Dean University of Health Sciences, Lahore. (Underlining is ours).

Yours truly, (Sd.) VICE‑CHANCELLOR

Copy for information and necessary action to:‑--

(1) The Vice‑Chancellor. University of Punjab, Lahore.

(2) The Vice‑Chancellor, University of Bahauddin Zakaryia University, Multan.

(3) The Vice‑Chancellor, Islamic University, Bahawalpur.

(Sd.)

(Vice‑Chancellor).

1. To better appreciate the vires of the said letter it would be necessary to refer to some of the relevant provisions relating to the affiliation of institutions in the Ordinance under challenge. Section 4 of the Ordinance includes the power to "affiliate or disaffiliate colleges and other medical institutions in the "prescribed manner" which has been defined in section 2(xx) as "prescribed by Statutes, Regulations or Rules". Statute 1, clause 11 relates to the composition of the Affiliation Committee consisting of 5 members and clause 12 spells out its functions which, inter alia, includes inspection of the educational institutions "seeking affiliation with or admission to the privileges of the University and to advise the Syndicate thereon". Section 27 empowers the Syndicate to affiliate or disaffiliate medical institutions. Section 37 of the Ordinance which has a direct bearing on the point in issue is as under:‑‑

"37. Affiliation of medical institutions.‑‑‑(1) All medical institutions, whether in public or private sector, located within the geographical boundaries of the Province of the Punjab, whether affiliated with any other University, Examination Board or a Medical Faculty, notwithstanding anything contained in any other law for the time being in force, shall affiliate with the University within such period, and on such terms and conditions, as may be prescribed.

(2) A medical institution seeking affiliation to the University shall make an application to the University and shall satisfy it that‑‑‑

(i) the medical institution is under the management of Government or a regularly constituted governing body;

(ii) the financial resources of the medical institution are sufficient to ensure its. continued maintenance and efficient working;

(iii) the strength and qualifications and the terms and conditions of service of the teaching and other staff of the medical institution are satisfactory for the purpose of teaching of prescribed courses of studies and training in the institution;

(iv) the medical institution has framed proper rules governing the conduct and discipline of its employees;

(v) the building of the medical institution is suitable and commodious for its requirement;

(vi) the medical institution has, or can make a provision in the prescribed manner for the residence of students, not residing with their parents or guardians, and their supervision, and physical and general welfare;

(vii) the medical institution has a provision for a library and adequate library service;

(viii) the medical institution is properly equipped with laboratories, museums and other places of practical work required for courses of studies taught in the medical institution;

(ix) the medical institution has, or can make, provision for the residence of its Chief Executive and Deputy Dean, and other members, of the teaching staff in the medical institution building or near such building or the residence of students; and

(x) the affiliation of the medical institution shall not be injurious to the education or discipline of the students of other institutions in the neighborhood.

(3) The application shall further contain an undertaking by the medical institution that after the institution is affiliated, any change in the management or the teaching staff shall forthwith be reported to the University and that the teaching staff shall possess such qualifications as are, or may be prescribed.

(4) The Syndicate shall, after considering the recommendations of the Affiliation Committee, dispose of the application for affiliation in accordance with such procedure, as may be prescribed, and may grant or refuse affiliation:

Provided that the affiliation shall not be refused unless the medical institution has been given an opportunity of making a representation against the proposed decision."

1. A close look at subsection (1) of section 37 would indicate that it makes mandatory for all medical institutions except those which have been established under some Federal Statute and are under the Administrative control of the Federal Government within the geographical boundaries of the Province of Punjab to affiliate with the newly established University or Health Sciences and "within such period" and on "such terms and conditions" as may, be prescribed. The institutions run by the Federal Government can, of course, voluntarily affiliate. The time frame was considered essential by the law maker as an abrupt switch‑over from one University to the other could be problematic either for the students or the institutions concerned. Subsection (1) of this section is relatable to those institutions which already stand affiliated with a University and qua whom terms and conditions and terms of affiliation are to be prescribed, whereas subsection (2) stipulates the basic requirements of eligibility of affiliation for an institution/ applicant, having no prior affiliation. Subsection (4) of the same section vests the power to allow or refuse affiliation with the Syndicate and after considering the recommendations of the Affiliation Committee. In the case of the former category of institutions, it is mandatory both for institutions and University of Health Sciences to affiliate whereas for the latter it is discretionary with the UHS to grant or refuse affiliation.

2. The argument of the learned counsel for respondent that affiliation of the existing institutions with UHS would be automatic with effect from the promulgation of the Ordinance is untenable because if the legislative intent was so then: ‑‑

(i) the law maker would have used the expression "shall stand affiliated henceforth" instead of "shall affiliate";

(ii) "such period" on "such terms" would become redundant if the law envisaged automatic affiliation:

(iii) the existing medical institutions have been specifically mentioned in clause (1) of subsection (2) of section 37 which enjoins the institutions to apply for affiliation;

(iv) section 37(2)(i) shows that even an existing medical institution under the management of Government or otherwise will have to apply. The non obstante clause makes the legislative intent too apparent to warrant any other inference;

(v) the letter itself reflects that there was no affiliation by operation of law and the respondent Vice‑Chancellor had to send a letter/order under the cloak of the emergent power of the Vice‑Chancellor in terms of section 13(2) of the said Ordinance;

(vi) The application forms were sent by the Vice‑Chancellor for the said purpose.

Section 13(2) provides for the special powers of the Vice‑Chancellor in cases of emergency. It reads as under:‑‑

"13. Powers and duties of the Vice‑Chancellor.‑‑(1) The Vice ­Chancellor shall—

(i) ... ... ... ... ... .. ...

(ii) ... ... ... ... ... .. ...

(iii) ... ... ... ... ... .. ...

(iv) ... ... ... ... ... .. ...

(v) ... ... ... ... ... .. :

(vi) ... ... ... ... ... .. ...

(vii) ... ... .. ... ... .. ...

(viii) ... ... .. ... ... .. ...

(ix) ... ... .. ... ... .. ...

(2) The Vice‑Chancellor may in an emergency, which in his opinion requires immediate action, take such action as he may consider necessary and shall forthwith seek approval of the Board as to the action taken in emergency."

1. A bare reading of the afore‑referred provisions shows (a) that these I powers are available to the Vice‑Chancellor provided the emergency exists as an objective reality, but is not an emergency in a wide sense of the word. It is any state of affairs where the Vice‑Chancellor is of the view that any inaction on his part may not be in University's interest, where, immediate meeting of the competent body under the statute is not feasible and where an interim order for ultimate approval by the competent body would serve the institutional interest; (b) it can be used only with regard to those matters which, fall within the power of the Board of Governors as spelt out in section 24 of the University of Health Sciences Ordinance because any action taken by the Vice‑Chancellor has to be placed before the Board for approval in view of section 13(2) referred to above. The impugned letter of the Vice ­Chancellor neither refers to existence of any emergency nor the subject of affiliation fell within the powers of the Board. The letter in question, therefore, was beyond the scope of his power under the Ordinance.

However, it can be considered as an intimation by the Vice‑Chancellor to all medical institutions concerned about the mandatory nature of the new law and that they should apply which these institutions did.

The argument that the Vice‑Chancellor designate could not perform its functions as the "letter of recognition in respect of the UHS issued by the Secretary, Pakistan Medical and Dental Council, was not a valid recognition in terms of section 22‑A of Pakistan Medical and Dental Council Ordinance is without substance because Ordinance VII of 1999 vide which the afore ­referred section was inserted lapsed since it was not placed before the Parliament. This has been confirmed by Malik M. Pervez Akhtar, Deputy Attorney‑General for Pakistan.

1. The following issues are inter‑connected and we propose to deal with them accordingly:‑‑

(iii) Whether the provisions relating to affiliation are violative of fundamental rights provisions of the Constitution of Islamic Republic of Pakistan?

(iv) Whether the petitioners have a right to be examined by the University of Punjab in view of the principle of legitimate expectation?

(v) Whether the respondents are estopped to direct compulsory affiliation of Government Medical Colleges of Punjab notwithstanding the earlier affiliation contemplated in the Prospectus of the Government Medical Colleges in the Punjab?

(vi) Whether the letter issued by the Vice‑Chancellor of University of Health Sciences directing compulsory affiliation of all Medical Colleges in the Province of Punjab without complying with the conditions stipulated in the Ordinance and at a stage when the petitioners are in the final phase of their professional degree is in accord with equity and standards of reasonableness as laid down by the august Supreme Court with regard to the exercise of administrative authority?

(vii) Whether section 37 of the University of Health Sciences Ordinance could have retrospective application in the facts and circumstances of this case?

(viii) Whether the concept of compulsory disaffiliation contained in the University of Health Sciences Ordinance pursuant to which the impugned letter was issued by the Vice‑Chancellor is violative of the University of Punjab Act and the Calendar framed thereunder. If so to what effect?

1. It was contended before us that the right of education is a fundamental right which includes the right to have education of choice and a career of choice and that the compulsory disaffiliation from the University of Punjab and affiliation with University of Health Sciences is likely to affect the career and the right to have education of choice, right to have a degree of choice and ultimately their right to advancement in career. The Degree of medical qualification which University of Health Sciences may award, it was stressed, does not have worldwide recognition and, therefore, the petitioners may not get admission in foreign universities.

2. The fundamental right of "right to life" recognized in the entire civilized world and enshrined in Article 9 of our Constitution has been given expanded meaning over the years. With the passage of time the role of the State has become more pervasive. Its actions, policies and laws affect the individuals in a variety of ways and the Courts have accordingly given a more comprehensive and dynamic interpretation of the fundamental rights including the right to life. Right to life is no longer considered as merely a E right to physical existence or a right not to be deprived of life without due process of law. It means a sum total of rights which an individual in a State may require to enjoy a dignified existence. In modern age a dignified existence may not be possible without a certain level of education and the State has to play a role in ensuring by positive action that the citizens enjoy this right. In Brown v. Board of Education (1953) 98 Law Ed. 873, the US Supreme Court acknowledged this right and held as under:‑‑

"Today, education is perhaps the most important function of State and Local Governments ... ... .... .. it is required in the performance of our most basic responsibilities, even service in the Armed Forces, it is the very foundation of good citizenship. Today, it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment'. In these days, it is doubtful and child may reasonably be expected to succeed in life if he is denied the opportunity of an education. "

1. However, the fundamental rights under consideration are not absolute. Absolute rights may be possible perhaps in the moon or in utopia. In St. Xaviers College v. State of Gujarat AIR 1974 SC 1389, at page 1441, the settled principle of Constitutional law that all these rights have to be regulated by law, was reiterated with reference to the precedent case‑law, in the following words:‑‑

"No right, however, absolute, can be free from regulation. The Privy Council said in Commonwealth of Australia v. Bank of New South Wales 1950 Can 235, 310 that regulation of freedom of trade and commerce is compatible with their absolute freedom that section 92 of the Australian Commonwealth Act is violated only when an Act restricts commerce directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote. Likewise, the fact that trade and commerce are absolutely free under Article 301 of the Constitution is compatible with their regulation which will not amount to restriction. The Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan (1963) 1 SCR 491 = AIR 1962 SC 1406. "

1. Right to education is a fundamental right but the State regulates it in more than one ways. In the context of this case it is the State, through Legislature, which establishes schools, colleges, universities and regulates affairs. The Universities are entrusted with the task of teaching; of laying down curriculum or courses, of formulating admission policy, prescribing recruitment rules for the teaching staff etc. Affiliation and disaffiliation are some of the privileges which a University grants under law. This affiliation is basically an association of two Corporate Bodies and is distinct from "right to Association" contemplated by Article 17 of the Constitution of Islamic Republic of Pakistan, 1973. It is not a right created by any Constitutional provision. It is a right which does not flow from right to education. It is therefore, not a fundamental right. It is a right created by a Statute. Merely because a college has been disaffiliated from a University through an enactment would not be derogatory to the fundamental rights provision of the Constitution.

2. Section 37 of the University of Health Sciences Ordinance is not a new provision in the history of the creation of the Universities in Pakistan and in the Sub‑Continent. Almost similar provision existed in the University of the Punjab Act even in pre‑Partition days. This provision exists even in the University of the Punjab Act, 1947 in the Indian Province of Punjab. Section 5(3) of which mandated as under:‑‑

"(3) Notwithstanding anything contained in any other law for the time being in force, any educational institution situated within the limits of the area specified under subsection (1) shall, with effect from such date as may be notified in this behalf by the State Government be deemed to be associated with and admitted to the privileges of the University and shall cease to be associated in any way with, or be admitted to any privileges of the Punjab University; and different dates may be appointed for different institutions."

1. Under the afore‑mentioned provision, a notification was issued by the State Government which inter alia "notified that 30th June, 1970 as the date from which the educational institutions situated within the limits of the areas so specified in the notification shall be deemed to be associated and admitted to the privileges of the University". The vires of the afore‑referred Statute and the notification issued thereunder were challenged, inter alia, on the grounds that it was violative of fundamental rights. The Indian Supreme Court dismissed the petition (in D.A.V. College, Jullundur v. The State of Punjab and others AIR 1971 Supreme Court 173 7) declaring that it was not violative of fundamental rights and held as under:‑‑

"We have, therefore, no hesitation in holding that the notification under which the Colleges have been affiliated to the Universities is legally valid and from the date specified therein petitioners' Colleges cease to be affiliated to the Punjab University.''

1. Unlike section 5(3) of the University of Punjab Act, 1947, the same purpose is sought to be achieved through sections 5 and 37 of the University of Health Sciences Ordinance, of course with regard to medical institutions. Section 5 empowers the Provincial Government to exempt some of the institutions from the purview of section 37 whereas the latter provision makes it mandatory for those institutions to affiliate.

2. The University of Punjab Act, 1973, the Bahauddin Zakariya University Multan Act, 1975 and the Islamia University Bahawalpur Act, 1975, have analogous provisions a break‑up of which is given below:‑‑

| | | | | --- | --- | --- | | University of the Punjab Act, 1973 | Bahauddin Zakaria University Act, 1975. | The Islamia University of Bahawalpur Act, 1976 | | Section 5(2): | Section 5(2): | Section 5(2): | | No educational institution situated within the territorial limits of the University shall, save with the consent of the University and the sanction of the Government be associated in any way with or seek admission to the privileges of any other University. | No educational institution situated within the territorial limits of the University shall, save with the consent of the University and the sanction of the Government be associated in any way with or seek admission to the privileges of any other University. | No educational institution situated within the territorial limits of the University shall, save with the consent of the University and the sanction of the Government be associated in any way with, or seek admission to the privileges, of any other University. | | Section 6(1): | Section 7(1): | Section 6(1): | | (1) Notwithstanding anything to the contrary contained in any other law, notification, contract, agreement or instrument, Government may, by notification in. the official Gazette, integrate with the University any educational institution situated any where in the Province or transfer any institute, institution or Department of the University to Government. | (1) Notwithstanding anything to the contrary in any other law, notification, contract, agreement or instrument, Government may, by notification in the official Gazette, integrate with the University any educational institution situated any where (in Multan Division) or transfer any institute, institution or Department of the University to Government. | (1) Notwithstanding anything to the contrary contained in any other law, notification, contract, agreement or instrument, Government may, by notification in the official Gazette, integrate with the University any educational institution situated any where in the Province or transfer any institute, institution or Department of the University to Government. |

1. The break‑up of the analogous provisions in the University of Punjab Act, 1947 (India), the University of Punjab Act, 1973 (Pakistan), the Bahauddin Zakariya University, Multan Act, 1975 and Islamia University Bahawalpur Act, 1975, Bahawalpur, would clearly demonstrate that such provisions are there in all the State‑run Universities and the Government concerned or the Universities have always been vested with power to affiliate or disaffiliate and to exempt or not to exempt, an institution. The Courts have never found these statutory provisions to .be discriminatory or violative or fundamental rights. The precedent case‑law qua Article 17 of the Constitution, of Islamic Republic of Pakistan, 1973 to which reference. was made by Syed Mansoor Ali Shah, learned amicus curiae was relatable to political parties and political rights and, therefore, would slot advance petitioners' case: (Reference was made to Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 Supreme Court 416, Mrs. Benazir Bhutto and another v. Federation of Pakistan and another PLD 1989 Supreme Court 66 and Mian Muhammad Nawaz Sharif v. President of Pakistan and another PLD 1993 Supreme Court 473).

2. Coming to the question of legitimate expectation, there is substance in the argument of Mr. Abdul Hafeez Pirzada, learned counsel for the University of Health Sciences that the principle of legitimate expectation has to stem from a particular provision of law, contract or representation. The main contention of petitioner's learned counsel in this regard was that since at the time of admission it was provided in the Prospectus that at the conclusion of their five years professional course, they would be issued a Degree from the University' of Punjab, therefore, they had legitimate expectation to remain associated with the said University, This argument is not tenable for more than one reason. Firstly; the Prospectus is an administrative instruction which may have a force of law but if this administrative instruction is superseded by a statutory provision, the latter has to prevail. Secondly, the provisions of General Clauses Act cannot have primacy over the special law. This is in line with the law laid down by the august Supreme Court in Fazal Din v. Lahore Improvement Trust PLD 1969 Supreme Court 223 wherein, at page 238, it was observed as under:‑‑

“... The power of alteration or modification, if regulated by the statute itself must prevail over the general principles enunciated in section 20 of the General Clauses Act. It was accepted by this Court in the case of the University of Dacca v. Zakir Ahmad that even the principles of natural justice could be excluded by express words in the enactment itself …………….. "

Thirdly, at the time of admission, the merit list was prepared and colleges were allocated and students were admitted to those colleges throughout the Punjab on the basis of standing of those medical colleges and not the basis of universities in the Punjab. The petitioners continue to be the students of their respective medical colleges to which they were admitted in terms of the merits list prepared and would be awarded the same Degree for which they were admitted. Fourthly, in terms of the same Prospectus the students are bound by any subsequent amendment in Prospectus and the impugned provisions being statutory enjoy a higher status. Paras. 6 and 7 of the Prospectus of the Government Medical Colleges in the Punjab (Session 2002-­2003) are as follows:‑‑

"6. Students on the roll of these colleges shall be bound to abide by the rules and regulations as laid down in this prospectus and such changes issued by Government of the Punjab, from time to time.

1. Government of the Punjab, reserves the right of admissions and alterations of any rule in the prospectus at any stage."

2. So far as the students of final two years of M.B.,B.S. and BDS examinations are concerned, Mr. Abdul Hafeez Pirzada has placed on record a supplementary written statement to the‑following effect:‑‑

“......... that it will hold the examinations scheduled for 2003, for all the four courses of M.B.,B.S. and BDS namely first profession to the Fourth/Final Professional (5th year) M.B.,B.S. Course of Studies and First year to 4th years (Final) of the BDS Course, but as a gesture permit the degrees for the fourth year,(Third Professional) and Final M.B.,B.S. and Third Year and Fourth Year BDS Course to be awarded in the name of Punjab University and Bahauddin Zakariya University as the case may be, to all the candidates who pass the said examinations."

1. Petitioners learned counsel Mr. Aitzaz Ahsan and others have accepted this offer and no counsel has objected to it. Dr. A. Basit, learned Legal Advisor for University of the Punjab has made statement on behalf of the University that the afore‑referred statement is acceptable even to University of the Punjab.

2. Section 37 of the University of Health Sciences Ordinance, 2002 may, not be in accord with sections 5 and 6 of the University of Punjab Act, 1973, sections 5 and 7 of the Bahauddin Zakariya University Multan Act, 1975 and with Islamia University Bahawalpur Act insofar as Medical Institutions are concerned. But the law maker has decided to set up Specialist University of Health Sciences and to the extent of the Ordinance, the provision of the former three laws shall stand impliedly, repealed. Sitting in .the Constitutional jurisdiction this Court would not like to enter into the policy making domain of the State or question the legislative wisdom. This is in line with the law laid down by the august Supreme Court in Muhammad Iqbal Rafi v. the Province of Punjab Lahore and others 1986 SCMR 680 and Prof. Noor Muhammad Khan Marwat, Principal, Lucky Marwat College of Education and Research, Lakki Marwat v. Vice­ Chancellor, Gomal University, Dera Ismail Khan and 2 other s PLD 2001 Supreme Court 219.

3. This brings us to the petitions of those colleges and their students which were affiliated with the University of Punjab after the promulgation of the University of Health Sciences Ordinance, 2002 i.e., 28th September. 2002 (W.Ps. Nos.5565/2003; 8755/2003, 7343/2003, 6310/2003. 6309/2003, 8193/2002, 7470/2003 and 5594/2003). All these petitioner colleges were granted affiliation by the University of the Punjab on the applications submitted by the respective colleges. The Vice‑Chancellor of the University of the Punjab vide letter dated 28‑4‑2003 issued to all the afore‑referred colleges informed them that the affiliation granted to them had been withdrawn. The letter issued to the Principal, Lahore Medical and Dental College, Tulspura, Lahore reads as under:‑ ‑ .

To

The Principal, Lahore Medical and Dental College, Tulspura, Lahore.

Subject: AFFILIATION OF MEDICAL INSTITUTIONS

The Governor Punjab/Chancellor's directive issued vide No.GS(B)17‑1/2003‑169, dated April 23, 2603 refers:

The affiliation already granted by Punjab University to your college stands withdrawn with immediate effect.

(Sd.)

Col. Masudul Haq, Registrar.

CC.

Muhammad Ilyas, Additional Secretary, Governor's Secretariat, Punjab. "

1. We have already held that the mandate of section 37 of the University of Health Sciences Ordinance. 2002 was explicit and that all medical institutions whether affiliated with University or not had to affiliate with the newly created University. Admittedly all the afore‑referred institutions were granted affiliation after the enforcement, of the University or Health Sciences Ordinance notwithstanding the mandate of the provision referred to above. It appears that Vice‑Chancellor was apprised of the afore­ referred legal position pursuant to which he withdrew their affiliation but the question whether the Vice‑Chancellor could withdraw the affiliation himself under the University of Punjab Act, 1973 would be a moot point. Section 38 of which reads as under:‑‑

"38. Withdrawal of affiliation.‑‑(1) If an educational, institution affiliated to the University fails at any time to fulfil any of the requirements mentioned in this Act, or if an educational institution has failed to observe any of the conditions of its affiliation, or its affairs are conducted .in a manner which is prejudicial to the interests of education, the Syndicate may, on recommendation of the Affiliation Committee, and after considering such representation as the educational institution may wish to make, withdraw, either in whole or in part, the rights conferred on the educational institution by affiliation or modify such rights.

(2) The procedure to be followed for the withdrawal of affiliation shall be such as may be prescribed. "

1. A careful reading of the afore‑referred provision demonstrates that the withdrawal contemplated under the law is on account of non‑fulfillment of any requirement of Act, its failure to observe any condition of affiliation or on account of anything done by the said institution which is prejudicial to the interests of education. If the institution was guilty of any of these acts or infirmities, section 38 empowers, the Syndicate, on the recommendation of the Affiliation Committee, to withdraw affiliation granted. As there was no allegation of the afore‑referred kind, obviously the Syndicate would not have been in a position to withdraw affiliation under this provision. However, the change in affiliation has been mandated by law through procedure laid down. But the letter issued by the Vice‑Chancellor, University of the Punjab is neither backed by any provision in the University of Punjab Act, 1973 nor the University of Health Sciences Ordinance, 2002. Confronted with a Court query, about the legality of the afore‑referred letter issued by the Vice­ Chancellor of the University of the Punjab dated 28‑4‑2003, Dr. A. Basit. learned Legal Advisor conceded that the former did not had any authority to issue the letter in question. However, since the affiliation granted by the University of the Punjab to those colleges was in derogation to the mandatory provisions of University of Health Sciences Ordinance, 2002 was itself void, the order of withdrawal of the said affiliation. becomes inconsequential and it is held so. But, the act of the University of the Punjab or the respective colleges who sought affiliation with it should not prejudice the case of the students of these colleges. The examination forms of the students of those colleges shall, therefore be accepted by the University of Health Sciences and those students shall be allowed to appear in terms of the same arrangement referred to in para. 35 above. In the meanwhile University of Health Sciences shall entertain the application of these colleges for the grant of affiliation and as their eligibility qua affiliation had already been determined by the University of the Punjab, they shall be granted the requisite affiliation in the same terms they had with the University of the Punjab in provisional or permanent affiliation as the case may be. (Emphasis supplied).

2. We have gone through the working paper prepared on the establishment of University of Health Sciences, Lahore. It highlights the problems being faced in the medical institutions, the quality of teaching, the standards of examination, the fact that University of Punjab is over­burdened, that every year it has to examine a total number of one lac fifty thousand students in various disciplines and the need to improve curriculum and research with a view to bring it in accord with the requirements of the contemporary world. It explains that the idea of a Health University is not new. There are eighty such Universities in Japan seven in Iran and even in Sindh there are five. In the afore‑referred back‑drop, the fundamental objective has been explained as under:‑‑

"…………… With a view to bring radical changes in medical education for combating the challenges of 21st century , it has been considered inevitable to set up an institution in the Punjab which can act as centre of excellence for all health, and medical related activities. This centre has been conceived in shape of University of Health Sciences, Lahore. The proposed University would sere as a nexus for medical sciences in Pakistan with specific focus on the Punjab Province. The precise role of the University will be to act as a body for regulating, coordinating and ensuring quality control in the domain of medical education. In addition, it would also manage activities like holding international, national and regional conference, seminars, workshops, and lectures by eminent scholars/professionals both from abroad and within the country. "

The vision is dynamic and the declared objectives appear to be noble. We only hope that these are backed by the requisite dedication and resources both. The allocation of merely five acres of land for a University of the kina visualized in the founding papers and the law enacted is a rather modest start to say the least. While the recent strides in the domain of information technology are worthy of positive comment, but the treatment meted out to the determinants of a civil society generally and the education sector particularly in the last fifty years strikes a jarring note. How can a nation confront the challenges of 21st Century which spends hardly 3% of its GNP on education '' In this backdrop the argument of Mr. Abdul Hafiz Pirzada, learned counsel for UHS that the State has a right, in the national interest or on the principle of patriotism, to prohibit medical graduates to go abroad for higher education so that they may not settle there, is untenable because it would impede further advancement in professional knowledge and would adversely affect higher career prospects. Individuals grow, nations are built and civilizations advance not by such regimentation or regulation, but by a spirit of free enquiry, a spirit of research and in a society which does not put a clog on intellectual growth which encourages inter‑action between academicians within and beyond the frontiers. Patriotism is not generated in a vacuum; it does not sprout from the barren fields or grow from the trees it is visible in the lush green fields where the tiller gets his due in the factories. where the worker gets fair wages for his toil and sweat; it breeds in the hearts and minds of the young men and women when their thirst for knowledge is quenched in the seats of learning and when they grow up and lay off their student robes, they discharge their debt to posterity by shaping the future of the country as Doctors. Engineers, Lawyers, Judges, Teachers. Statesmen, Soldiers, Politicians and Philosophers. It smells in the air when people have a sense of security of their lives, their liberties, their honour and their livelihood. It flourishes in a tolerant society which is not accused or producing zealots charged with an evangelistic spirit, "seeking heavens by creating hell on earth", and it reins supreme in a justice system which inspires confidence.

1. "The ink of the scholar is more sacred than the blood of the martyr", so said Prophet Muhammad (peace be upon him). But alas! Today. we are accused of spreading terror. In Muslim history the intellectual advancement received a stunning blow when Halloko Khan destroyed the seats of learning and libraries in "Baghdad". Let there be an intellectual renaissance. Let our traditional seats of, learning grow and blossom into universities teaching modern subjects. Let these institutions acquire an academic credibility. After all, traditional universities like Cambridge and Oxford where once upon a time were Church institutions. We are all Abraham’s children. In history all of us had our days of glory, our days of intellectual advancement, our days of political ascendancy and our days of economic boom. Only the time and space varies.

2. In this age of scientific advancement and technology, it is knowledge acquired through education which lays down, raises super­structure and sustains societies and a nations in their forward march towards the realization of their dreams, hopes and ideals. There are moments in history when the whole fate and future of nations can be decided by a single decision. That moment is within our reach; we only have to discover it, it calls for a change in our national outlook and a change in national priorities i.e. it calls for a tilt towards more education, more schools and colleges, more seats of learning, of research and excellence. It is, inter alia, with this spirit in mind that we uphold the law and the Specialist University of Health Sciences established thereunder.

3. For what has been discussed above, while disposing of the writ petitions, mentioned in para 1 of this order, we declare, hold and direct as under:

(i) That the University of Health Sciences Ordinance, 2002 is not ultra vires of the Constitution of Islamic Republic of Pakistan, 1973 or the Pakistan Medical and Dental Council Ordinance, 1962. The University of Health Sciences has been validly established and no exception can be taken to it whatsoever.

(ii) That subject to Article 143 of the Constitution of Islamic Republic of Pakistan, 1973, all the medical institutions under the administrative control of the Provincial Government and‑the medical institutions in the private sector‑in the territorial limits of Punjab are under a mandate of the new law to affiliate with the University of Health Sciences within such time and on such terms and conditions which may be prescribed subject of course to the power of the Provincial Government to exempt‑any medical institution in terms of section 5 of the said Ordinance. The order of exemption of King Edward Medical College, Lahore and Fatima Jinnah Medical College, Lahore is therefore, not without lawful authority. So far as the Army Medical College, Rawalpindi is, concerned nothing has been placed on record to indicate that it has either been established under a Provisional Statute or is under the administrative control of the Provincial Government. Whatever be the factual position, legal consequences shall flow in terms indicated above.

(iii) That the letter dated 2‑12‑2002 issued by the Vice‑Chancellor of University of Health Sciences, insofar as it declares the medical colleges to be deemed to have been affiliated, is without any lawful authority. The letter shall be considered merely as an intimation to the medical institutions concerned about the change in law qua affiliation and an invitation to comply with the mandate of law. The­ intimation sent by the Principals of the medical colleges/institutions would be treated as applications for affiliation and the latter shall pass appropriate orders for affiliation if it has not already been passed, without further loss of time in terms of section 37 of, the University of Health Sciences Ordinance, 2002;

(iv) That all the private medical colleges which were granted affiliation (provisional or permanent) by the University of Punjab after the promulgation of UHS Ordinance shall be granted similar nature of affiliation forthwith which they enjoyed with the University of Punjab so that the students may not suffer. The concerned colleges shall apply to the University of Health Sciences within a week:

(v) That since those colleges which acquired affiliation with the University of Punjab after the enforcement of the UHS Ordinance, did not avail the privilege of affiliation for long and had to disaffiliate by operation of law, the University of Punjab shall consider the question of refund of their affiliation dues if an application is made in this behalf.

(vi) That the requisite notification qua recognition of the medical qualification in terms of section 11 of Pakistan Medical Council Ordinance, 1962 is still awaited. By way of an interim arrangement the University of Health Sciences and University of the Punjab have agreed that the former shall be an examining body for the fourth year (3rd Professional) and final M.B.,B.S. and 3rd and 4th year of BDS and the latter shall award degrees.

1. Before parting with the judgment we may observe that the petitions in hand were cases of first impression, involved intricate questions of law and interpretation of Constitutional provisions. The assistance rendered by the learned counsel from both the sides has been of great value. We particularly, place on record our deep appreciation for Mr. Abdul Hafeez Pirzada, Mr Aitzaz Ahsan, Mr. Najamul Hassan Kazmi Mr. Abid Hassan Minto, Dr. A. Basit, Syed Mansoor Ali Shah and Mr. Salman Akram Raja Advocates for their qualitative and quantitative input.

M.B.A./A‑877/L Order accordingly.

P L D 2003 Lahore 802

Before Ali Nawaz Chowhan, J

M. ARSHAD‑‑‑Petitioner

Versus

GHULAM RASUL‑‑Respondent

Writ Petition No.8151 of 2002, decided on 12th September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 514‑‑‑Penal Code (XLV of 1860), Ss. 324, 148 & 149‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Forefeiture of surety pond‑‑‑Failure to produce the accused by the surety ‑‑‑Forefeiture of surety bond in full by Trial Court‑‑‑Reduction of penalty by Sessions Judge in revision‑‑‑Validity‑‑‑Surety was not a relation of the accused and had stood as a surety as a gesture of benevolence‑‑‑Court, in dealing with cases of sureties who might be in default, was supposed to maintain a balance between undue leniency, which might be leading to abuse of the procedure and interference with the course of justice‑‑‑While maintaining such balance, the Court was required to hold some sort of balance while determining to what extent a bond was to be forfeited‑‑‑Principles.

Admittedly, in the present case surety was not a relation of the accused and had stood as a surety as a gesture of benevolence.

Grant of bail is an essential part of the system of administration of justice. It avoids punishing someone in advance and ensures liberty until a case is duly enquired into and adjudged. Whereas, the release of accused persons on bail helps in preventing overcrowding in the already overcrowded prisons. People come forward to stand surety for the accused out of ordinary fellow feelings and invariably without any ambition for gaining of benefit, Therefore in dealing with cases of sureties who play be in default a judicial mind is supposed to maintain a balance between undue leniency, which may be leading to abuse of the procedure and interference with the course of justice. Whereas, on the other hand, undue severity may lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. While maintaining this balance, the Courts are required to hold some sort of balance while determining to what extent a bond is to be forfeited.

Sardar Khan and others v. The State 1968 PCr. LJ 447; Ghulam Haider v. Karim Bakhsh PLD 1963 SC 47; Muhammad Khan v. The State 1986 PCr.LJ 2028; Bahadur Khan v. The State 1976 PCr.LJ 1283; Muhammad Safeer v. Faqir Khan and 2 others 2000 SCMR 312; Abdul Bari v. Malik Amir Jan and 4 others PLD 1998 SC 50 and. Zeeshan Kazmi v. The State PLD 1997 SC 267 ref.

Mehr Muhammad Tufail Bhutta for Petitioner

Mrs. Salina Malik, A.A.‑G.

P L D 2003 Lahore 804

Before Mian Saqib Nisar, J

Mian MUHAMMAD AKRAM and others‑‑‑Petitioners

Versus

MUHAMMAD CHIRAGH and others‑‑‑Respondents

Civil Revisions Nos.429, 1877, 1878, 1879 and 1880 of 2001, heard on 20th June, 2003.

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

‑‑‑‑S. 8‑‑‑Transfer of Property Act (IV of 1882), S.52‑‑‑Suit for possession of immovable property ‑‑‑Lis pendens, doctrine of‑‑‑Applicability‑‑‑Ex parte decree, on the basis of which the vendor had acquired the title to the suit­ land, had vanished on account of the same having been set aside and only the suits of the vendor, remained pending, relating back to their date of institution ‑‑‑Alienations of the suit‑land were not only without a valid and lawful title of the vendor but would also be hit by the doctrine of lis pendens‑‑‑Rule of bona fide purchaser, in circumstances, would not override the doctrine of lis pendens and its effects, particularly in the situation when the suits of vendor were dismissed for whatever reasons‑‑‑Fact that the decrees in favour of vendor were ex parte in nature, and were the only source of title of the vendor the vendees, claiming themselves to be bona fide purchasers, while purchasing the property should have examined the record of the Court pertaining to the decrees and once it was so done, it would have become clear to the purchasers that the ex parte decrees in favour of the vendor were under challenge‑‑‑Ex parte decree in favour of the vendor having been set aside and ultimately his suit having been dismissed, he was stripped off, of his title to the property and further alienations made also lost their legal value‑‑‑Having sought the property from a person having no title at all, the vendees could not seek the protection of the rule of bona fide purchaser, to deprive the persons, who were the lawful owners of the suit property.

Muhammad Yaqub and another v. Mahboob Ali 1989 PLC (C.S.) 11; Mst. Surraya Begum and others v. Mst. Suban Begum and others 1992 SCMR 652 and Noorul Amin and another v. Muhammad Hashim and 27 others 1992 SCMR 1744 distinguished.

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

‑‑‑‑Ss. 8 & 42‑‑‑Suit for possession of immovable property‑‑‑Vendor had claimed to have purchased the property in the year 1973 from one F who had died in 1969‑‑‑Sale allegedly by a dead person and likewise the ex parte decree against him was nullity in the eye of law and on the basis of a void decree no valid title could be acquired by the vendor which could further be transferred to the subsequent vendees.

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

‑‑‑‑O. XXII, R.1‑‑‑Suit against a dead person is nullity in the eyes of law and likewise a decree obtained against such person suffers from the same vice.

Atif Amin for Petitioners.

Shoukat Hussain Khan Balooch for Respondents.

Date of hearing: 20th June, 2003.

P L D 2003 Lahore 810

Before Mian Saqib Nisar, J

MUHAMMAD TUFAIL‑‑‑Appellant

Versus

AUQAF DEPARTMENT through Chief Administrator of Auqaf, Punjab, Lahore and another‑‑‑Respondents

First Appeal from Order No.267 of 2001, decided on 9th September, 2003.

(a) Islamic Law‑‑‑

‑‑‑‑ Gift of property to the Khanqah‑‑‑No gift‑deed had been placed on record by either of the parties, but according to the mutation based thereupon, the property undoubtedly was gifted to the Khanqah and not to its Mutawalli‑‑­No right or interest whatsoever, in the property so gifted, was created in favour of Mutawalli's predecessor which could devolve upon him.

(b) Islamic Law‑‑‑

‑‑‑‑ Gift of immovable property to the Khanqah by a non‑Muslim through the medium of trust‑‑‑Validity‑‑‑Once a valid gift in terms of Islamic law was made to the Khanqah, which, stricto senso, may not be a juristic person, but was within the meaning of law, capable of acquiring and holding the property in its name, the gifted property would merge into the already existing Waqf without there being a specific dedication by the non‑Muslim‑‑­Property in question, since the time of its gift had actually vested in the Khanqah and thus had formed part of the property belonging to it‑‑‑Such property, which admittedly was being used since 1913, as vesting in the Khanqah, irrespective of any dedication being shown to have been made by a person not professing Islam was the property acquired by Khanqah.

Chief Administrator, Auqaf, Punjab, Lahore v. Koura alias Karam Elahi and others PLD 1991 SC 596 distinguished.

Principles of Mohammedan Law by Mulla, para. 151 ref

(c) Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑

‑‑‑‑Ss. 7 & 11‑‑‑Waqf property‑‑‑Non‑Muslim had gifted the landed property to Khanqah‑‑‑Mutawallis, having no independent right or interest in the property, had no locus standi to challenge the notification by the Auqaf Department.

(d) Punjab Waqf Properties Ordinance (IV of 1979)‑‑‑

‑‑‑‑Ss.11 & 7‑‑‑Limitation Act (IX of 1908), Ss.5 & 14‑‑‑Petition under S.11, Punjab Waqf Properties Ordinance, 1979‑‑‑Limitation‑‑‑Condonation of delay‑‑‑Exclusion of time spent in earlier agitation of the same matter‑‑­Separate application, requirement of‑‑‑Provision of S.5, Limitation Act, 1908 had not been made applicable to petition under S.11, Punjab Waqf Properties Ordinance, 1979‑‑‑If, however, the appellant was entitled to the benefit of S.14, Limitation Act, 1908, on account of his earlier action of agitating the matter before High Court, which was dismissed as being incompetent, he should have moved a separate application for the exclusion of the specific time spent in the earlier round‑‑‑Not only that no such application had been moved, the appellant had not even sought the exclusion of time in the main body of his petition‑‑‑Effect‑‑‑Person seeking benefit of S.14, Explanation I, Limitation Act, 1908 was required to establish the exact time, which was consumed in prosecuting the earlier litigation, but in the present case, the Notification by the Department was issued on 31‑1‑1974 and the Constitutional petition was instituted by the appellant on 30‑9‑1974 meaning thereby that the period of thirty days had expired even before the institution of the Constitutional petition, therefore, the period during which the Constitutional petition remained pending could not be excluded, when the petition under S.11, Punjab Waqf Properties Ordinance, 1979 had already become barred, by that time‑‑‑Provision of S.14, Limitation Act, 1908, therefore, had no application ‑to the facts and circumstances of the case.

Ch. Arshad Mahmood for Appellant.

Raja Dilshad A. Khan for Respondents.

Date of hearing: 19th June, 2003.

P L D 2003 Lahore 624

Before Sayed Zahid Hussain, J

GHULAM DIN through Legal Heirs and another---Petitioners

Versus

DEPUTY COMMISSIONER/COLLECTOR EXERCISING POWERS OF ADDITIONAL SETTLEMENT COMMISSIONER, SARGODHA DISTRICT and others---Respondents

Writ Petition No.349-R of 1984, heard on 15th April, 2003.

Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 10---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Mukhbari applications alleging fraud and forgery---Two Mukhbari applications for the same land in two earlier rounds of litigation had been dismissed and third such application was filed in the year 1983, after the repeal of Evacuee Laws---Additional Settlement Commissioner (Lands) proceeded to take the view on the third Mukhbari application to the effect that he differed with the decision of the Settlement Commissioner on a previous application in 1977 as the same was made ex-parte---Validity---Such an approach to the matter was wholly unwarranted and contrary to the Scheme of statutory hierarchy envisaged by law inasmuch as an officer in the lower hierarchy could not countermand the order of the Settlement Commissioner---Finality attached and attained to a judicial order could not be eroded or stultified on the bare unsubstantiated allegation of fraud and forgery (by the Mukhbari application) particularly when earlier two rounds of litigation had ended in favour of the petitioners---Present being the third round of Mukhbari applications which commenced in the year 1983, after the repeal of Evacuee Laws, and if such repeated challenges which were not contemplated by law, permitted, would result in an endless litigation--­Additional Settlement Commissioner in his endeavour to correct the Revenue Record had acted wholly without jurisdiction in nullifying the order of Settlement Commissioner with which he had differed‑‑‑Such action of the Additional Settlement Commissioner was not sustainable in law and was declared as such.

Officer on Special Duty Central Record Office and others v. Bashir Ahmad and 9 others 1977 SCMR 208 and Harmat and others v. Muhammad Khan and others 1994 SCMR 565 ref.

Ch. Riasat Ali for Petitioners.

Fawad Malik, A.A. ‑G. for Respondent No. 1.

Malik Muhammad Hussain Awan for Respondent No.4.

Nemo for the Remaining Respondents.

Date of hearing: 15th April, 2003.

P L D 2003 Peshawar 1

Before Talaat Qayum Qureshi and Shahzad Akbar Khan, JJ

Mst. ROBINA GUL‑‑‑Petitioner

Versus

INAM KHAN and others‑‑‑Respondents

Writ Petition No. 92 of 2001, decided on 19th August, 2002.

(a) Islamic Law‑‑‑

‑‑‑‑ Nikah‑‑‑Defined.

Muhammadan Law, S.250; Islami Fiqha, Vol. II, p.12; Durre-­Mukhtar, Vol. II, p.58; Urdu Daira Maarif Islamia, Voi.22, p.439; Majmooa Qawaneen Islam by Dr. Tanzeel‑ur‑Rehman, Vol. 22, p.56 and Verse of Holy Qur'an ref.

(b) Islamic Law‑‑‑

‑‑‑‑ Nikah‑‑‑Condition and requirement of having witnesses.

Ashraful Hidaya, Vol. IV, p.8; Adaab‑ul‑Qazi, Vo1.III, p.197 and Sharha Mishkat Sharif Urdu, p.280 ref.

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

‑‑‑‑S. 5‑‑‑Nikah‑‑‑Proof‑‑‑Suit for jactitation of marriage‑‑‑Presence of Aadil witnesses‑‑‑Defendant claimed to be husband of plaintiff and produced witnesses of Nikah who were first cousins of the defendant‑‑‑No independent witness was produced to prove that Nikah of the defendant was solemnized with the plaintiff‑‑‑Effect‑‑‑Witnesses deposing in, favour of defendant being his close relatives were interested witnesses, who could not be termed as Aadil witnesses‑‑.‑Statement of such witnesses was not relied upon by High Court in circumstances.

(d) Islamic Law‑‑‑

‑‑‑‑ Nikah‑‑‑Female solemnizing Nikah through Vakeel‑‑‑Validity‑‑‑All Islamic Schools of thought recognize Nikah of female performed through Vakeel as valid.

(e) Islamic Law‑‑‑

‑‑‑‑ Vakalat‑‑‑Defined.

Islami Fiqha, Vol. II, p.12 and Urdu Daira Maarif Islamia, Vol. 22, p.439 ref.

(f) Islamic Law‑‑‑

‑‑‑‑ Nikah‑‑‑Female solemnizing Nikah through Vakeel‑‑‑Object and purpose‑‑‑Stranger acting as Vakeel of female at the time of Nikah‑­Validity‑‑‑Term 'Vakeel' has not been defined in Muslim Family Laws Ordinance, 1961‑‑‑Purpose of solemnizing Nikah through Vakeel is that the female is not to appear in the assembly of Nikah herself, therefore, she should be represented by a male person‑‑‑Vakeel generally is representative of the party appointing/nominating him‑‑‑Vakeel representing female cannot be a man from street because he is to perform Ijab‑o‑Qabool, therefore, keeping in view general practice prevalent in the society, Vakeel of female has to be one related to her in the prohibited degree ‑‑‑Vakeel is normally maternal/paternal uncle, sister's husband, brother, father, etc.‑‑‑Stranger cannot represent a female in Nikah‑‑‑Girl speaks at the time of Nikah through her Vakeel and such practice is in vague to preserve the honour of the family of girl and the same excludes possibilities of marriage through duress, pressure, compulsion and fraud.

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

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Jactitation of marriage‑‑‑Disputed Nikah, proof of‑‑‑Plaintiff denied solemnizing Nikah with defendant‑‑‑Marriage was allegedly an arranged marriage and had taken place in the house of plaintiff where her father and other relatives were also present‑‑‑Defendant produced a witness who was stated to be Vakeel of the plaintiff and had given consent on behalf of the plaintiff for the marriage‑‑‑Defendant failed to prove on record that the witness was appointed as Vakeel by plaintiff in presence of two witnesses nor any witness was produced to prove that the plaintiff had appointed him as her Vakeel‑‑‑Witness who claimed to be Vakeel was a young boy of 25/26 years of age who was neither related to plaintiff within the prohibited degree nor was her near relative nor was resident of the same locality‑‑‑Family Court decreed the suit in favour of the plaintiff but the Appellate Court allowed the appeal and the suit was dismissed‑‑‑Validity‑‑‑When the witness acting as Vakeel had no lawful authority to give consent on behalf of the plaintiff, then such Vakeel could not perform Ijab‑o‑Qabool‑‑‑ Defendant failed to prove consent of marriage by the plaintiff‑‑‑When the consent of woman was missing or secured through duress and pressure, such marriage was not a valid marriage‑‑‑High Court in exercise of Constitutional jurisdiction set aside the judgment and decree passed by the Appellate Court and that of the Family Court was restored‑‑‑Constitutional petition was allowed in circumstances.

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

‑‑‑‑S. 5‑‑‑Muslim Family Laws Ordinance (VIII of 1961), S.5‑‑‑Jactitation of marriage‑‑‑Non‑registration of Nikah‑‑‑Nikah was alleged to be solemnized in a big town, yet it was not registered as per S.5 of Muslim Family Laws Ordinance, 1961‑‑‑Effect‑‑‑Non‑registration of Nikah supported the case of plaintiff that Nikah between the parties had not been solemnized‑‑‑If Nikah had been solemnized, the same would have been registered in accordance with the provisions of Muslim Family Laws Ordinance, 1961.

Khan Afzal for Petitioner.

Shakeel Ahmad for Respondents.

Date of hearing: 14th June, 2002.

P L D 2003 Peshawar 14

Before Ijaz‑ul‑Hassan and Muhammad Qaim Jan Khan, JJ

AMANULLAH‑‑‑Petitioner

Verses

SECRETARY TO GOVERNMENT OF N.‑W.F.P., LOCAL GOVERNMENT

DEPARTMENT, CIVIL SECRETARIAT, PESHAWAR and 5

others‑‑‑Respondents

Writ Petitions Nos. 941 and 942 of 2002, heard on 30th August, 2002.

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

‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court in exercise of extraordinary Constitutional jurisdiction under Art. 199 of the Constitution 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‑‑‑High Court has the power to issue writs of mandamus, quo warranto, certiorari, habeas corpus, 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.

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

‑‑‑‑Art. 25(1)‑‑‑Equality of citizens‑‑‑Reasonable classification. principle‑‑­Scope‑‑‑All citizens are equal before law and are entitled to equal protection of law under Art.25 of the Constitution‑‑‑Provisions of Art.25 of the Constitution do not prohibit treatment of citizens by a State, on the basis of reasonable classification.

Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506 ref.

(c) Constitution o Pakistan (1973)‑‑

‑‑‑‑Art. 25‑‑‑Term 'reasonable classification'‑‑‑Applicability‑‑‑Equal protection of law under Art.25 of the Constitution does not envisage that every citizen is to be treated alike in all circumstances but it contemplates that persons similarly placed are to be treated alike and that reasonable classification is permissible if it is founded on reasonable distinction or reasonable basis‑‑‑Law applying to one person or one class of persons may he Constitutionally valid if there is sufficient basis or reason for the same.

PLD 1976 SC 57 ref.

(d) Words and phrases‑‑

‑‑‑‑"Disqualification"‑‑‑Meaning.

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

(e) North‑West Frontier Province Local Government Ordinance (XIV of 2001)‑‑

‑‑‑‑S. 158 [as amended]‑‑‑Constitution of Pakistan (1973), Arts. 4, 8, 25(1), 233 & 199‑‑‑Constitutional petition ‑‑‑Vires of amendment made in 5.158 of North‑West Frontier Province Local Government Ordinance, 2001‑‑‑Bar against dual membership of Nazimeen‑‑‑Petitioners contended that the restriction imposed on Nazimeen and Naib‑Nazimeen to contest general election whereby they had to resign first from their office was in conflict with the fundamental rights, discriminatory and in violation of Art.4 of the Constitution ‑‑‑Validity‑‑‑Condition attached i.e. prior resignation was not unreasonable restriction as the same was founded on reasonable and legal basis‑‑‑Steps had been taken for ensuring just, fair and transparent election and to avoid all possible chances of pre‑poll rigging ‑‑‑Nazimeen and Naib­-Nazimeen did not stand on higher pedestal than the Ministers and Governors in the Federation and Provinces‑‑‑Members of Local Councils were not required to resign before filing nomination papers but Nazimeen were the head of their local Governments and were directly involved in day to day administration whereas a member had a different role to play‑‑‑Amendment made in S.158 of North‑West Frontier Province Local Government Ordinance, 2001, had been introduced for valid reasons and no Article of the Constitution or provision of any other law had been violated‑ Impugned amendment did not amount to disqualification and it was not harmful in any manner‑‑‑High Court declined to interfere with the amendment introduced in S.158 of North‑West Frontier Province Local Government Ordinance, 2001‑‑‑Petition was dismissed in circumstances.

Cantonment Board v. District Sanitary and Food Inspector 1993 SCMR 941; Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56; Messrs Brooke Bond Pakistan Limited v. Province of Sindh through Secretary, Ministry of Finance, Sindh and 3 others 2001 CLC 148; Saiyyid Abul A'la Maudoodi and others v. Government of West Pakistan PLD 1964 SC 673 and Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref.

Abdul Hakim Khan Kundi for Petitioner.

Imtiaz Ali, A.A.‑G. for Respondents.

Date of hearing: 30th August, 2002.

P L D 2003 Peshawar 20

Before Shahzad Akbar Khan and Ijaz‑ul‑Hassan, JJ

Syed SHAH JEHAN‑‑‑Petitioner

Versus

ARSHAD HUSSAIN and 12 others ‑‑‑ Respondents

Writ Petition No.749 of 2001, decided on 20th September, 2002.

North‑West Frontier Province Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr.42(5), 71, 72 & 73‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Election dispute‑‑‑Recounting of ballot papers‑‑­Failure to provide opportunity to the parties to adduce evidence‑‑‑Parties contested election for the seat of peasants and the respondent was declared returned candidate only by one vote‑‑‑In unofficial counting of the ballot papers, the petitioner was declared as returned candidate but in official counting, the Returning Officer only counted the disputed ballots and the respondent was declared successful by one vote instead of the petitioner‑‑­Grievance of the petitioner was that the Election Tribunal had refused to recount the whole ballot papers and without providing any opportunity of producing evidence to the parties had maintained the decision of the Returning Officer‑‑‑Validity‑‑‑Was the primary duty of the Election Tribunal to have afforded an opportunity to the parties to adduce evidence in order to resolve the controversy involved in a proper manner‑‑‑Held, Election Tribunal could order recount of votes in appropriate cases and on satisfaction of requisite conditions‑‑‑Election Tribunal had proceeded on wrong premises and misdirected itself to treat the decision of the Returning Officer as final and wrongly declared the respondent as returned candidate‑‑­Refusal on the part of the Election Tribunal to exercise jurisdiction in the matter had materially prejudiced the case of the petitioner‑‑‑Order passed by the Election Tribunal was set aside and the case was remanded for decision afresh after affording opportunity to the parties to adduce evidence in accordance with law‑‑‑Petition was allowed accordingly.

Muhammad Sher Khan and another v. Muhammad Ishfaq and others Writ Petition No.322 of 2001 and Muhammad Tariq Zakhmi and another v. Election Tribunal/District and Sessions Judge, Hafizabad and 13 others 2002 MLD 284 ref.

Mohibullah Kakakhel for Petitioner.

Nemo for Respondents.

Date of hearing 15th August, 2001.

P L D 2003 Peshawar 23

Before Talaat Qayum Qureshi, J

BILADAR KHAN‑‑‑Petitioner

Versus

FARIDOON KHAN and others‑‑‑Respondents

Civil Revision No.648 of 2000, decided on 18th October, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Civll Procedure Code (V of 1908), O.XXVI, R.10(2) & S.115‑‑­Report of Local Commission‑‑‑Demarcation of land‑‑‑Dispute between the parties related to the demarcation of portion of land owned by the parties‑‑‑Trial Court appointed a senior advocate as Local Commission and basing on the report of the Commission, suit was decided‑‑‑Appellate Court dismissed the appeal and maintained the decision of the Trial Court‑‑‑Defendants contended that the Courts below had fallen in error by taking into consideration the report of the Local Commission, therefore, their judgments and decrees were against the law and required interference‑‑‑Validity‑‑‑Trial Court had placed its reliance on report of the Local Commission as the same was admitted without any objection from the defendants' side‑‑‑Report of the Local Commission had gone un-rebutted and as per provisions of O.XXVI, R,10(2), C.P.C., the report and also the evidence recorded by the Local Commission was evidence in the case, therefore, the same was sufficient on the strength of which finding could be justifiably recorded by the Trial Court under the law‑‑‑Trial Court had based its findings on the report of the Local Commission, which fully demarcated the land of the defendants vis‑a‑vis the land of plaintiffs and the site plan had been exhibited‑‑‑High Court declined to interfere with the Concurrent findings of fact by the Courts of competent jurisdiction‑‑‑Revision was dismissed in circumstances.

Akbar Ali and others v. Province of Punjab and others 1990 CLC 718 and Government of N.‑W.F.P. through Deputy Commissioner Bannu and 2 others v. Muhammad Khan alias Aan 1990 CLC 1898 ref.

Muhammad Waris Khan for Petitioner.

Mian Iqbal Hussain for Respondents.

Date of hearing: 4th October, 2002.

P L D 2003 Peshawar 27

Before Abdur Rauf Khan Lughmani and Talaat Qayum Qureshi, JJ

ZAHEER UL ISLAM ABBASI‑‑‑Petitioner

Versus

UMAR AYUB KHAN and 5 others‑‑‑Respondents

Writ Petition No. 160 of 2002, decided on 18th September, 2002.

(a) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss. 99(1‑A)(h)(i)(j) [as amended by Representation of People (Amendment) Ordinance (XXXVI of 2002)]‑‑‑Pakistan Army Act (XXXIX of 1952), Ss.55 & 59‑‑‑Penal Code (XLV of 1860), S.121‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Rejection of nomination papers on the ground that petitioner was a convicted person‑‑‑Election Tribunal dismissed petitioner's appeal‑‑‑Contention of petitioner was that he was not disqualified to contest election on account of his conviction under S.59 of Pakistan Army Act, 1952 read with S.121‑A of Penal Code, 1860, as same did not come within domain of "moral turpitude"‑‑‑Validity‑‑‑Petitioner while serving as senior officer in Armed Forces owed duty not only to his own Institution, but also to the then Government‑‑‑Petitioner had failed to perform his duties under law‑‑‑Charges levelled against petitioner stood proved and his conviction by Field Court Martial and confirmed by Chief of Army Staff had not been set aside by any Competent Court/Authority‑‑‑Order of dismissal of petitioner from service passed on the basis of his conviction was still in field‑‑‑Petitioner was, thus, not qualified to contest election as per S.99(1‑A)(h)(i)(j) of Representation of the People Act, 1976‑‑‑Offence of conspiracy under S.121‑A, P.P.C. could not be said in consonance with good morals by any stretch of imagination‑‑­Duty of petitioner as member of Armed Forces was to protect the country, but instead he had been convicted not only, for waging war against Pakistan, but for attempting to overthrow the then elected Government by use of force‑‑‑Such act of petitioner would certainly fall under the ambit of "moral turpitude "‑‑‑Tribunal had rightly rejected nomination papers of petitioner‑‑‑High Court dismissed Constitutional petition in limine.

Pakistan through Secretary, Ministry of Defence v. General Public PLD 1989 SC 6; Seth Saifullah v. Appellate Tribunal and 3 others PLD 1989.Pesh. 36; Punjab Bar Council v. Muhammad Ashiq Marth, Lahore PLI 2001 Tribunal Cases 561 and Mian Shahbaz Ahmad v. Haji Muhammad Iqbal and others 1985 SCMR 227 ref.

(b) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss. 14(5), 14(5‑A) [as inserted by Representation of People (Amendment) Ordinance (XXXVI of 2002)] & 55‑‑‑Appeal by a non‑candidate against acceptance of nomination papers of petitioner suffering from disqualification of being a convicted person‑‑‑Election Tribunal accepted such appeal‑‑­Validity‑‑‑Election Tribunal had rightly assumed jurisdiction under S.14(5‑A) of the Act after coming to know about such fact through appeal.

(c) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss. 14(5), 14(5‑A) [as inserted by Representation of People (Amendment) Ordinance (XXXVI of 2002)] & 55‑‑‑Appeal against, acceptance of nomination papers of petitioner‑‑‑Issuing notice to petitioner by Election Tribunal before accepting appeal‑‑‑Requirement of‑‑‑Notice was required to he issued by Tribunal in order to inform the party that his nomination papers had been wrongly accepted and why same should not be rejected under law‑‑­Petitioner had knowledge of filing of appeal as well as about date of its fixation‑‑‑Petitioner had sent his agent to request Tribunal to adjourn such date, but same had not been acceded to‑‑‑Tribunal in such circumstances was not required to issue fresh notice to petitioner as requirement of law had been fully complied with.

(d) Representation of the People Act (LXXXV of 1976)‑‑

‑‑‑‑S. 99(1‑A)(h)(i)(j) [as amended by Representation of People (Amendment) Ordinance (XXXVI of 2002)]‑‑‑Pakistan Army Act (XXXIX of 1952), Ss.55, 59 & 132‑B‑‑‑Penal Code (XLV of 1860), S.121‑A‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Rejection of nomination papers on the ground that petitioner was a convicted person‑‑­Election Tribunal dismissed appeal‑‑‑Contention of petitioner was that his conviction under S.59 of Pakistan Army Act, 1952 read with S.121‑A of Penal Code, 1860 was not final, as no‑ appellate forum had been provided to avail right of appeal‑‑‑Validity‑‑‑Conviction and sentence of petitioner had been recorded by competent Court provided under Pakistan Army Act, 1952 and confirmed by Chief of Army Staff‑‑‑Forum provided for appeal as per S.132‑B of Pakistan Army Act, 1952 was not proper forum for petitioner‑‑­Petitioner had not agitated against his conviction before any Court/forum, but had agitated such point for the first time through present Constitutional petition after lapse of six years‑‑‑Petitioner had not placed on record a single representation allegedly made by him to Prime Minister etc.‑‑‑High Court dismissed Constitutional petition being hit by principle of laches.

PLD 2000 SC 869 ref.

(e) Administration of justice‑‑‑

‑‑‑‑ Courts always help the vigilant, who approaches Court in time, but do not help the person, who is negligent in pursuing his matter.

PLD 2000 SC 869 fol.

(f) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss. 99(1‑A)(h)(i)(j) [as amended by Representation of People (Amendment) Ordinance (X XVI of 2002)]‑‑‑Pakistan Army Act (XXXIX of 1952), Ss. 55, 59 & 132‑B‑‑‑Penal Code (XLV of 1860), S.121‑A—­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Rejection of nomination papers on the ground that petitioner was a convicted person‑‑­Election Tribunal dismissed petitioner's appeal‑‑‑Contention of petitioner was that charge against him had not been proved, thus, his conviction under S.59 of Pakistan Army Act, 1952 read with S.121‑A of Penal Code, 1860, was not proper‑‑‑Validity‑‑‑High Court in exercise of Constitutional jurisdiction could not go into propriety, legality, correctness or finality of order of conviction recorded by Court of competent jurisdiction‑‑‑Even otherwise such exercise would amount to going deep to see as to whether conviction order passed by Field Court Martial was proper or not‑‑‑High Court could not perform the functions of an Appellate Court‑‑‑Petitioner while serving as Major General in Pakistan Army had been convicted by Field General Court Martial‑‑‑High Court by virtue of Art.199(3) of the Constitution had no power to pass any order regarding finality or propriety of such conviction‑‑‑High Court dismissed Constitutional petition.

(g) Words and phrases‑‑

‑‑‑"Moral turpitude" ‑‑‑Meaning.

Black's Law Dictionary, 6th Edn.; Webster’s Dictionary; Words and Phrases Legally Defined, Vol. III, 2nd Edn., p.294; Remnatha Aiyer's Law Lexicon; Law Laxicon of British India by P. Ramantha Lyer, 1940 End., p.832; Bartos v. United‑States District Court for District of Nebraska, C.C.A. Neb. 19 F.2d 722; Corpus Juris Secundum, Vol. 1, VIIIth Edn., p.1200; Baleshwar. Singh v. District Magistrate AIR 1959 All. 71; Sita Ram v. District Magistrate, Piliobit, 1957 ALJ 383; Managali v. Chhakki Lal AIR 1963 All. 527; In re: P. Advocate (1963) 2 SGJ 708 and AIR 1963 SCJ 1313 ref.

(h) Words and phrases‑‑‑

‑‑‑‑‑"Discrimination"‑‑‑Connotation‑‑‑Discrimination occurs only when two or more persons, who are similarly placed, in similar situation and in similar ambient circumstances, are treated differently.

Mushtaq Ali Tahirkheli for Petitioner.

Date of hearing: 18th September, 2002.

P L D 2003 Peshawar 40

Before Talaat Qayum Qureshi, J

MUHAMMAD FAZAL PARACHA‑‑‑Petitioner

Versus

Mst. FAUZIA BEGUM‑‑‑Respondent

Civil Revision No.442 of 1996, heard on 16th December, 2002.

(a) North‑West Frontier Province Pre‑emotion Act (X of 1987)‑

‑‑‑‑S. 31‑‑‑Pre‑emption suit‑‑‑Limitation‑‑‑Suit was filed by pre‑emptor on 9‑12‑1991 and amendment in S.31 of North‑West Frontier Province Pre­emption Act, 1987, was made effective from 31‑12‑1991‑‑‑Consequence‑‑­Suit having been filed before the amendment, the same was in time.

Muhammad Hussain and others v. Muhammad and others 2000 SCMR 367 rel.

(b) North‑West Frontier Province Pre‑emotion Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Power of attorney‑‑­Pre‑emotion suit‑‑‑Maintainability‑‑‑Suit was filed on behalf of the pre­emptor by a person claiming to be the attorney of the pre‑emptor‑‑‑Power of attorney was allegedly executed on 25‑11‑1991, attested on 7‑12‑1991 and same was for the first time placed on record of the Court on 7‑6‑1994‑‑­Attorney of the pre‑emptor had not been delegated with any power on 10‑11-­1991 by the pre‑emptor when notice of Talb‑e‑Ishhad was issued‑‑Power of attorney was neither annexed with the plaint when the same was filed on 7­-12‑1991, nor the alleged attorney placed the same before the Trial Court for three years‑‑‑Power of attorney was produced for the first time before the Court on 7‑6‑1994 by the alleged attorney, when his statement was to be recorded‑‑‑Contention of the vendee was that neither the required demands (Talbs) were made by any authorised person, nor the suit was validly filed‑‑­Validity‑‑‑Alleged attorney was not authorised to institute the suit on behalf of the pre‑emptor ‑‑‑If an attorney was not authorised in clear words to do a particular act, then the same could not be performed by the attorney‑‑‑Law requires that power of attorney must be construed strictly while certain authority conferring on attorney‑‑‑Both the ‑Courts below had failed to appreciate, the evidence available on record and law applicable to the case‑‑­High Court set aside the concurrent judgments and decrees passed by the Courts below and the suit filed by the pre‑emptor was dismissed‑‑‑Revision was allowed in circumstances.

Messrs Saudi Arabian Airlines v. Miss Hira Khan 2002 CLC 204, 2000 CLC 252 and Muhammad Mehrban v. Sadar‑ud‑Din and another 1995, CLC 1541 ref.

(c) North‑West Frontier Province Pre‑emotion Act (X of 1987)‑‑‑

‑‑‑‑S. 6‑‑‑Superior right of pre‑emotion‑‑‑Shaft Jar ‑‑‑Pre‑emptor claimed right of pre‑emotion on the basis of owner of the contiguous property‑‑­Witness produced by the pre‑emptor did not state that she was owner of the contiguous property‑‑‑Effect‑‑‑Pre‑emptor could not claim her superior right of pre‑emotion over the property in circumstances.

(d) Power of attorney‑

‑‑‑‑Scope‑‑‑If an attorney was not authorised in clear words to do a particular act, then the same could not be performed by the attorney‑‑‑Law requires, that power of attorney must be construed strictly while certain authority conferring on the attorney.

Muhammad Mehrban v: Sadar‑ud‑Din and another 1995 CLC 1541; Muhammad Aslant and another v. Mst. Inayat Bibi and 4 others 1995 CLC 1572; Eagle Star Insurance Co. Ltd. v. Usman Sons Ltd. PLD 1969 Kar. 123 and Murid Hussain and others v. Muhammad Sharif through his Legal Heirs 1996 CLC 161 ref.

Safdar Hussain for Petitioner.

Muhammad Latif for Respondent.

Date of hearing: 16th December, 2002.

P L D 2003 Peshawar 44

Before Ijaz‑ul‑Hassan, J

ESSA KHAN‑‑‑Petitioner

Versus

KHAN GUL‑‑‑Respondent

Civil Revision No.749 of 2002, decided on 18th November, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.42 & 54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Revisional jurisdiction of High Court‑‑‑Concurrent findings of fact by Courts below‑‑­Suit for declaration and permanent injunction was filed on the ground that the plaintiff was in possession of the suit land as Hissadar and the defendant had no concern with the suit land‑‑‑Trial Court and Appellate Court concurrently dismissed the suit and appeal filed by the plaintiff‑‑‑Validity‑‑­If the concurrent findings of fact by the Courts below are the result of misreading of evidence on record, it becomes duty of High Court to set aside the same in `exercise of its jurisdiction under S.115, C.P.C.‑‑‑No error in reading the evidence had been committed by the Trial Court or Appellate Court‑‑‑Plaintiff had failed to point out any material irregularity or illegality justifying setting aside the concurrent findings by the Courts below‑‑‑High Court declined to interfere with the judgments and decrees passed by the Courts below‑‑‑Revision was dismissed in limine.

Mst. Rehmant Noor v. Halim Shah and 2 others PLD 1986 Pesh. 154; Sardar Muhammad Zaman Khan v. Government of N.‑W.F.P. 2001 CLC 1041 and Irshad Ali and another v. Munawar Khan 2001 CLC 1899 ref.

Amjad Khan for Petitioner.

Date of hearing: 18th November, 2002.

P L D 2003 Peshawar 46

Before Talaat Qayum Qureshi, J

MEHTAB KHAN and others‑‑‑Petitioners

Versus

FAIZ MUHAMMAD ‑‑‑Respondent

Civil Revision No. 192 of 2002, decided on 18th November, 2002.

(a) West Pakistan Civil Courts Ordinance (II of 1962)‑‑‑

‑‑‑‑S.18‑‑‑Forum of appeal‑‑‑Determination‑‑‑Forum of appeal is to be determined according to the value of the suit as mentioned in the plaint and not according to the market value of the property fixed by Trial‑Court.

Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394 and Chairman, WAPDA, Lahore and 3 others v. Muhammad Ali Khan 2001 YLR 2138 ref.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5‑‑‑Condonation of delay‑‑‑Wrong advice of counsel‑‑‑Effect‑‑‑Wrong advice of counsel or negligence mistake of the counsel is no reason for condoning the delay.

Abdul Majeed and another v. Ghulam Haider and others 2001 SCMR 1254 ref.

(c) West Pakistan Civil Courts Ordinance (II of 1962)‑‑‑

‑‑‑‑‑S. 18‑‑‑Limitation Act (IX of 1908), Ss. 5 & 14‑‑‑Wrong forum of appeal‑‑‑Negligence of counsel‑‑‑Appeal against judgment and decree passed by the Trial Court was filed in High Court which was returned to be filed before Lower Appellate Court as the value of appeal was to be determined according to the value of plaint fixed by the plaintiff‑‑‑Lower Appellate Court dismissed the appeal as being tine‑barred‑‑‑Contention of petitioner was that as the appeal was pending before the High Court, therefore, Lower Appellate Court had wrongly dismissed the appeal as time‑barred‑‑­Validity‑‑‑Wrong ill‑advice of the counsel being not a valid ground for condonation of delay, Lower Appellate Court had rightly dismissed the appeal filed by the petitioner‑‑‑No illegality or material irregularity existed in the judgment and decree passed by the Courts below warranting interference by High Court in circumstances.

Raj Muhammad v. Mst. Chan Bibi and others 1984 SCMR 1068; Mian Azad Bakhsh v. Sheikh Muhammad Afzal 1985 SCMR 1003; Ismail Din v. Allah Nawaz and others 1988 SCMR 2 and Manzoor Hussain and 2 others v. Muhammad Ali and another 1989 SCMR 1498 ref.

H. Muhammad Zahir Shah for Petitioners.

Sher Muhammad Khan for Respondent.

Date of hearing: 18th November, 2002.

P L D 2003 Peshawar 49

Before Ijaz‑ul‑Hassan, J

SHAKOOR NAYAB and others‑‑‑Petitioners

Versus

MATI AHMAD and others‑‑‑Respondents

Civil Revision No.23 of 2002, decided on 13th December, 2002.

(a) Specific Relief Act (I of 1877)‑

‑‑‑‑S. 42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 117 & 120‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑‑Suit for declaration‑‑‑Concurrent findings of fact by the Courts below‑‑‑Onus to prove the ownership in suit property‑‑‑Plaintiffs failed to prove that they were owners in possession of the suit property‑‑‑Both the Courts below concurrently dismissed the suit as well as appeal filed by the plaintiffs‑‑‑Validity‑‑‑Plaintiffs failed to point out any misreading or non‑reading of the evidence on the record‑‑‑Both the Courts below had appreciated the evidence on the record and the inference drawn from such appreciation had been lawfully made‑‑‑No illegality or infirmity in the judgments had been indicated‑‑‑Person who asserts/alleges a particular fact and wants the Court to believe that such fact exists he shall be required to prove the existence of such a fact‑‑‑Petitioners, in the present case, had not been able to prove successfully that they were owners in possession of suit land by virtue of inheritance or exchange and that the defendants had no interest in the same‑‑‑Onus to prove their case was on the plaintiffs who had failed to prove their assertions and version in the plaint‑‑­High Court declined to interfere with the judgments and decrees passed by both the Courts below‑‑‑Revision was dismissed in circumstances.

Badar Zaman v. Sultan 1996 CLC 202 and Riaz v. Muhammad Saleem and 4 others 1989 SCMR 1491 ref.

(b) Practice and procedure‑--

‑‑‑ Plaintiff must prove his case on the strength of his own evidence and cannot take advantage of the shortcomings of the defendants case.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 117, 118 & 120‑-‑Onus to prove‑‑‑Failure to discharge ‑‑‑Effect‑‑­Where onus was placed on plaintiffs which they had not been able to discharge satisfactorily, the consequence would be that their suit must fail.

Roohul Amin for Petitioners.

Asghar Khan Kundi for Respondent No. 1.

Date of hearing: 25th November, 2002.

P L D 2003 Peshawar 53

Before Talaat Qayum Qureshi, J

RAHIMZADA‑‑‑Petitioner

Versus

MUHAMMAD AYUB KHAN and others‑‑‑Respondents

Civil Revision No. 158 of 1997. heard on 17th December. 2002.

(a) North‑West Frontier. Province Pre‑emption Act (X of 1987)‑‑‑----

‑‑‑‑Ss. 13 & 31‑‑‑Pre‑emption suit‑‑‑Limitation‑‑‑Suit property was transferred to the vendee by a decree passed in his favour in a suit for specific performance of agreement to sell‑‑‑Decree was passed on 1‑10‑1989 and the suit was filed‑on 25‑9‑1990‑‑‑Contention of the vendee was that the pre‑emptor had failed to make requisite demands (Talbs) and the suit was barred by limitation‑‑‑Validity‑‑‑Agreement to sell the suit property was entered into between the vendor and vendee in the year 1983 and at that time it was not the requirement of law to raise Talbs on gaining the knowledge of sale‑‑‑Attorney of pre‑emptor though had admitted that he had knowledge of the sale transaction but the pre‑emptor could not be non‑suited on the ground that he failed to raise Talb in the year 1983‑‑‑Decree of specific performance 25‑9‑1990 i.e. within one year, the period of limitation prescribed by law‑‑­Amendment in S.31 of North‑West Frontier Province Pre‑emption Act, 1987; was made effective from 31‑12‑1991‑‑‑Suit filed before the said amendment was not barred by limitation in circumstances.

Muhammad Hussain and others v. Muhammad and others 2000 SCMR 367 ref.

(b) North‑West Frontier Province Pre‑eruption Act (X of 1987)‑‑‑-

‑‑‑‑S. 13‑‑‑Pre‑emption suit‑‑‑Requisite demands (Talbs)‑‑‑Onus to prove‑‑­Failure to prove Talbs by pre‑emptor in the suit ‑‑‑Effect‑‑‑Pre‑emptor was bound to prove that he made Talbs in time in accordance with law even if vendee raised no objection.

(c) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Talb-i‑Ishhad, making of‑‑‑Procedure‑‑‑Failure to produce two marginal witnesses of the notice of Talb‑i‑Ishhad‑‑‑Effect‑‑‑Talb‑i‑Ishhad under S.13 of North‑West Frontier Province Pre‑emption Act, 1987, had to be made in presence of two truthful witnesses who were to attest the notice‑‑‑Such notice might not be signed by witnesses or even by pre‑emptor but the evidence that such Talb had been made in presence of truthful witnesses could not be dispensed with ‑‑‑Non ­production of second marginal witness of Talb‑i‑Ishhad was fatal to the case of pre‑emptor ‑‑‑Pre‑emptor, in the present case, had examined only one witness of the notice of Talb‑i‑Ishhad the other witness was not produced and no reasons whatsoever for his non‑production were given, therefore, the requirements of law were not fulfilled ‑‑‑Pre‑emptor having failed to prove that he had made Talb‑i‑Ishhad in accordance with law, Courts below had rightly dismissed his suit as well as appeal filed by him‑‑‑No mis­reading/non‑reading in the evidence or an illegality or any material irregularity or any jurisdictional error or defect having been found warranting interference in the concurrent findings recorded by the Courts of competent jurisdiction, revision was dismissed.

Umatul Latif v. Zainat Bibi 2001 MLD 355 and Muhammad Subhan and others v. Mir Qadam 2001 MLD 1716 ref.

Abdul Samad Zaida for Petitioner.

Abdul Sattar Khan for Respondents.

Date of hearing: 17th December, 2002.

P L D 2003 Peshawar 57

Before Abdul Rauf Khan Lughmani and Muhammad Qaim Jan Khan, JJ

PUBLIC HIGH SCHOOL AND COLLEGE, HANGU through Shabbir Ahmed Khan and others‑‑‑Petitioners

Versus

ZILLA NAZIM, HANGU and 2 others‑‑‑Respondents

Amended Writ Petition No. 1401 of 2001, decided on 17th October, 2002.

North‑West Frontier Province Local Government Ordinance (XIV of 2001)‑‑‑--

‑‑‑‑S. 18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Zila Nazim‑‑‑Functions and powers‑‑‑Dissolution of Board of Governors of private school ‑‑‑Zila Nazim had issued a notification whereby Board of Governors of a private Public High School was dissolved‑‑­Petitioner, the school, claimed to be a private school and raised a plea that Zila Nazim could not dissolve the Board of Governors‑‑‑Validity‑‑‑No power had been conferred on Zila Nazim to dissolve the Board of Governors of private school or even to interfere in private schools under S. 18 of North ­West Frontier Province Local Government Ordinance; 2001‑‑‑Notification issued by Zila Nazim was illegal, without jurisdiction and of no legal effect‑‑‑High Court directed Zila Nazim to refrain from interference in the matter of the Public High School‑‑‑Petition was allowed accordingly.

M. Mohibullah Kakakhel for Petitioner.

Wali Khan Afridi for Respondent No. 1.

Tariq Javaid, A.A.‑G. for Respondents Nos. 2 and 3.

Date of hearing: 17th October; 2002.

P L D 2003 Peshawar 60

Before Talaat Qayum Qureshi, J

Mian GUL SHAHZAD AMAN ROOM and others‑‑‑Petitioners

Versus

KAMEEN‑MIAN and others‑‑‑Respondents

Civil Revision No.705 of 2002, decided on 10th December, 2002.

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

‑‑‑‑O. XVII, R.3‑‑‑Failure to produce evidence‑‑‑Closing of evidence‑‑­Negligence of plaintiffs‑‑‑Plaintiffs were not only negligent in producing their evidence but had not cared about the last chances provided and warnings given to them to proceed under O.XVII, R.3, C.P.C.‑‑‑Effect‑‑­Trial Court had rightly passed order of closing the evidence of plaintiffs in circumstances.

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

‑‑‑‑O. XVII, Rr.1(3) & 3‑‑‑Adjournment without sufficient cause‑‑‑Dismissal of suit‑‑‑Many opportunities were given to the plaintiff to produce his evidence but he failed to produce the same despite the fact that 17 adjournments were sought by him‑‑‑Trial Court, after giving warning to the plaintiff, dismissed the suit under O.XVII, R.3, C.P.C.‑‑‑Contention of the plaintiff was that the Trial Court had to proceed under O.XVII, R.1(3), C.P.C.‑‑‑Validity‑‑‑Trial Court was not debarred even under O.XVII, R.1(3), C.P.C. for dismissing the suit after it. had been made impossible for the Court by the defaulting party to proceed with the matter by failing to bring any material on record‑‑‑Suit was rightly dismissed by Trial Court in circumstances.

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

‑‑‑‑O. XVII, R. 3 & S.115‑‑‑Failure to produce evidence‑‑‑Dismissal of suit‑‑‑Despite having been given 17 adjournments for production of evidence, plaintiffs failed to produce their evidence over a period of four years‑‑‑Trial Court dismissed the suit for non‑production of evidence and appeal was dismissed by Appellate Court ‑‑‑Validity‑‑‑Plaintiffs had made it impossible for the Trial Court to make further progress with the suit‑‑‑Trial Court had no other option but to close their evidence and dismiss the suit‑‑­No illegality or material irregularity was found by High Court in concurrent findings of the Courts of competent jurisdiction‑‑‑ Revision was dismissed in limine.

Abdul Latif Afridi for Petitioners.

P L D 2003 Peshawar 63

Before Ijaz‑ul‑Hassan, J

AKHTAR ALI SAID BCHA ‑‑‑ Petitioner

Versus

Mst. NAHEED BIBI‑‑‑Respondent

Civil Revision No. 181 of 2002, decided on 15th November, 2002.

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

‑‑‑‑Ss. 13 & 17‑‑‑Civil Procedure Code (V of 1908), Ss.46 & 115‑‑­Execution of decree‑‑‑Revision petition against order of dismissal of appeal tiled before Appellate Court against order of transferee Executing Court‑‑­Maintainability ‑‑‑Special provisions of West Pakistan Family Courts Act, 1964 excluded the general provisions of Civil Procedure Code, 1908‑‑‑High Court dismissed revision petition as being not maintainable.

The State v. Ziaur Rehman and others PLD 1973 SC 49 ref.

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

‑‑‑‑Preamble & S.17‑‑‑Purpose of the Act‑‑‑Non‑applicability of provisions of C.P.C., to proceedings before Family Court‑‑‑Reasons stated.

The purpose of enacting Family Courts Act is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible manner. All that the Family Courts Act has done is that it has changed the forum, altered the method of trial and empowered the Court to grant better remedies. The provisions of Civil Procedure Code are not applicable in stricto senso to proceedings before the Family Court by virtue of section 17 of the West Pakistan Family Courts Act, 1964. Purpose of enacting special law regarding family disputes is for advancement of justice and to avoid technicalities.

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

‑‑‑‑Ss. 5, 17 & 25‑‑‑Powers of Judge, Family Court to regulate its own proceedings, where circumstances so demand, in order to prevent course of justice being deflected from its true path‑‑ ‑Principles.

Judge Family Court is competent to regulate its own proceedings as West Pakistan Family Courts Act, 1964 does not make provisions for every conceivable eventuality and unforeseen circumstances. The Act creates a Special Court for decision of matters mentioned therein. Civil Procedure Code, 1908 and Evidence Act, 1872 are not made applicable to trial before Family Court. The Family Court should and must, when the circumstances so demand, exercise its own powers to prevent the course of justice being deflected from its true path.

PLD 1970 Pesh; 52; 1987 CLC 1277; 1986 CLC 2381; PLD 1975 Lah. 7; PLD 1989 SC 532; 1993 SCMR 363; PLD 1981 SC 522; PLD 1981 SC 246; 1983 CLC 3305 and Malik Khizer Hayat Khan Tiwana v. Mst. Zainab Begum PLD 1967 SC 402 ref.

Khalil Khan Khalil for Petitioner.

Atif Ali Khan for Respondent.

Date of hearing: 28th October, 2002.

P L D 2003 Peshawar 66

Before Talaat Qayum Qureshi, J

NASEEB JAN and others‑‑‑Petitioners

Versus

COLLECTOR, DISTRICT KARAK‑‑‑Respondent

Civil Revision No. 101 of 1996, decided on 11th November, 2002.

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

‑‑‑‑S. 152‑‑‑Correction of decree, application for‑‑‑Scope and limitation‑‑‑ Application under S.152, C.P.C. could be moved at any time for correction of clerical or arithmetical mistake in judgment, decree for orders or errors arising therein from any accidental slip or omission.

PLD 1992 SC 472 ref.

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

‑‑‑‑Ss. 34(2) & 152‑‑‑Land Acquisition Act (I of 1894), S.23‑‑‑Interest on compensation awarded by way of seeking amendment in the decree under S.152, C.P.C., claim for‑‑‑Dismissal of such application‑‑‑Validity‑‑‑Referee Court had awarded to petitioner compensation with 15% compulsory acquisition charges‑‑‑Petitioner against non‑grant of interest had neither filed appeal nor filed cross‑objection in appeal filed by Land Acquisition Collector against judgment of Referee Court‑‑‑Petitioner had made such application one year after dismissal of such, appeal‑‑Referee Court or Appellate Court had consciously and deliberately not granted interest‑‑‑Where decree was silent with respect to payment of interest, then same under S.34(2), C.P.C. would be deemed to have been refused by Court‑‑‑Petitioner could not be given claimed interest at such belated stage nor judgment/decree for grant of interest could be amended under S.152. C.P.C.‑‑‑High Court dismissed revision petition in circumstances.

PLD 1992 SC 472 and PLD 1961 Lah. 579 ref.

(c) Civil Procedure Cock (V of 1908)‑‑‑-

‑‑‑‑Ss. 152 & 34‑‑‑Correction in judgment by Court‑‑‑Scope‑‑‑Court could at any stage correct clerical or arithmetical mistake in its judgment under S.152, C.P.C.‑‑‑Non‑grant, of interest would not come under purview of "omission".

Hidayatullah Khan for Petitioners.

Tariq Javed, Dy. A.‑G. for Respondent.

Date of hearing; 11th November, 2002.

P L D 2003 Peshawar 69

Before Qazi Ehsanullah Qureshi and Dost Muhammad Khan, JJ

Ms. SHAKEELA‑‑‑Petitioner

Versus

UNIVERSITY OF PESHAWAR though Vice‑Chancellor and another‑‑‑Respondents

Writ Petition No. 1146 of 2002, decided on 19th December, 2002.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Re‑checking of examination papers‑‑‑Rules not permitting rechecking of papers‑‑­Jurisdiction of High Court to direct re‑checking‑‑Scope‑‑‑In genuine cases, the High Court cannot fold‑up its hand sealing the fate of an aggrieved student leaving him at the mercy of the people who indulge in reckless dispensation of duties‑‑‑Bar against re‑checking of papers cannot be taken as a stumbling block nor it can operate an absolute one in the way of High Court when seized with such a matter in its Constitutional jurisdiction nor the Authorities can be permitted to clad itself with the barring rule after committing wrong acid causing injustice to a student by putting her over his academic career in jeopardy‑‑‑In view of indifferent careless and lethargic attitude of the concerned staff of the academic institution charged with the noble task of giving to a student what is his or her due, the Court's duty becomes onerous and obligatory‑‑,In exceptional cases, the bar contained in the relevant rule cannot thwart in any manner the grant of a relief to a genuinely aggrieved citizen whose case is otherwise established for grant of such relief‑‑‑High Court emphasized the required degree of care and caution as well as restraint must be exercised so that excepting very rare and genuine cases, frequent interference is to be avoided by the Court‑‑‑High Court is required to chisel out the apparent bluntness of the Authorities for ensuring and securing fair play and justice‑‑High Court can direct re‑checking of papers in circumstances.

(b) University of Peshawar Act (II of 1974)‑‑‑--

‑‑‑‑Preamble‑‑‑Basic and‑ fundamental obligations of the University is to impart education and not to impede the same.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Re‑checking of papers‑‑‑Examining of answer‑sheet by High Court itself‑‑‑Grievance of the candidate was that her paper of Manor Acts of LL.B. (Part III) was not properly checked, though she had performed the same properly‑‑‑Controller of Examinations of the University appeared in person before the High Court and produced the original answer‑sheet in the Court‑‑‑Paper was examined in the presence of the Controller and the High Court was convinced that the marks given to each question answered were not only disproportionate but the same were also inadequate‑‑‑Realizing the shortcomings and unreasonable marking so trade against each answer given to the questions contained in the question paper, the Controller of Examinations undertook before the High Court to get the paper of the candidate re‑evaluated/re‑checked by impartial and competent examiner‑‑‑Later on instead of complying with the undertaking, the University Authorities raised a plea that the Rules of the University did not allow re‑checking of the answer-sheet‑‑‑Validity‑‑‑High Court itself had gone through the answer‑sheet of the candidate in the presence of the Controller of Examinations who was one of the respondents in the Constitutional petition and was adequately satisfied with the performance shown by the candidate‑‑‑High Court found the marks given to the candidate to be inadequate which fact too was conceded by the Controller who undertook to remedy the wrong but backed out after consultation with the Department concerned‑‑‑High Court invoked its Constitutional jurisdiction in the matter so that the ends of justice were fairly and fully secured‑‑‑University Authorities were directed to re‑check/re‑evaluate the answer‑sheet of the candidate‑‑‑Constitutional petition was allowed accordingly.

Writ Petition No.697 of 2002 and Abdul Hakim Hashmi v. Federal Public Service Commission 2002 SCC 404 ref.

M. Sardar Khan for Petitioner.

Mr. Zubair and Dr. Iqbal Controller. Representatives for Respondents.

Date of hearing: 10th December, 2002.

P L D 2003 Peshawar 74

Before Tariq Pervez Khan and Ijaz‑ul‑Hassan, JJ

SADAQAT ALI ‑‑‑Petitioner

Versus

THE STATE through Advocate‑General and 2 others‑‑‑Respondents

Writ Petition No.259 of 2002, decided on 13th November, 2002.

National Accountability Bureau Ordinance (XVIII of 1999)‑

‑‑‑‑Ss. 9 & 10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Bail‑‑‑Accused had allegedly received compensation of his acquired land at enhanced rate using his position as being member of the Land Valuation Committee‑‑‑Prosecution was in possession of sufficient evidence to connect the accused with the crime‑‑‑Accused could not show that discriminatory treatment was meted out to him qua other members of Land Valuation Committee‑‑‑Accused was a member and one of the signatories of the said Committee‑‑‑Mere fact that official representing WAPDA or Chairman of the Committee had not been arrested and the accused had been singled out, by itself, constituted no good ground to release the accused on bail‑‑‑Trial of the accused was near completion and only the statement of the Investigating Officer had to be recorded on the next date of hearing and in case the accused was admitted to bail prosecution case would be adversely affected‑‑‑Accused was refused bail in circumstances.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 ref.

Attique Shah for Petitioner.

Haidar Ali for Chairman, NAB.

Date of hearing: 13th November, 2002.

P L D 2003 Peshawar 77

Before Dost Muhammad Khan, J

SIDDIQULLAH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.Q‑80 of 2002, decided 1st November, 2002.

(a) North‑West Frontier Province Prevention of Gambling Ordinance (V of 1978)‑‑‑-

‑‑‑‑Ss. 6 & 8‑‑‑Criminal Procedure Code (V of 1898), Ss.561‑A & 5(2), Sched. II‑‑‑Petitioner had asserted the order of the Judicial Magistrate First Class whereby his application under S.249‑A, Cr.P.C. had been dismissed on the ground that posts of District Magistrate, Sub‑Divisional Magistrate and Magistrate First Class (Executive) had ceased to exist thus there was nobody within the said hierarchy to supervise the raid conducted under the Prevention of Gambling Ordinance, 1978 and criminals of such offences should not go unpunished‑‑‑Validity‑‑‑According to S.5(2) of the Cr.P.C. the investigation, trial and inquiry of offences against other laws were to be conducted subject to any special enactment for the tithe being in force regulating the same‑‑‑Footnote to the Second Sched. of the Cr.P.C. explained the mode and manner of investigation with reference to the nature of the offence and the length of sentence under the other laws and it was directed therein that offences punishable with three years 6r above alone were cognizable and the rest were not‑‑‑Said explanation also lent support to the view that offences under the said Ordinance which were not punishable with imprisonment for more than three years were not cognizable even under the said Shed.‑‑‑Offences under Ss.3, 4, 5 & 6 under the Ordinance certainly were non‑cognizable by the police on such analogy‑‑‑All powers of raid, arrest of the accused and recovery of articles under S.8 of the said Ordinance were rested with the Magistrate of the category mentioned therein‑‑‑Role of the police in the circumstances was that of agency rendering assistance to the Magistrate while carrying out such exercise under S.8 of the Ordinance‑‑‑Police, thus had no authority to take cognizance of the case under the Ordinance‑‑‑Section 8 of the Ordinance laid down a clear procedure and also provided a particular authority to deal with the matter and the police was necessarily excluded to take cognizance of such offences‑‑­High Court, in circumstances, declared the F.I.R. registered against the accused under S.6 of the Prevention of Gambling Ordinance (N.‑W.F.P.), 1978 to be void ab initio without lawful authority and all subsequent proceedings taken by the Trial Court pursuant to the police challan were equally declared to be without lawful authority, void ab initio and of no legal effect.

Chairman, E.T.P. v. Muhammad Din and others PLD 1956 SC (Pak.) 331; PLD 1971 Lah. 217 and Qayum Nawaz and 128 others v. State and 5 others PLD 2002 Pesh. 34 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Penal provisions‑‑‑Penal provisions of law which deprive the liberty of the citizens must be construed strictly and maximum efforts should be made to preserve such rights rather to permit invasion of the same.

(c) Maxim---

‑‑‑‑"Expressio unius est exclusio alterius"‑‑‑Meaning‑‑‑Act when is directed to be done in a particular manner it must be done in that manner or not at all as a command in the negative necessarily includes in it.

(d) North‑West Frontier Province Prevention of Gambling Ordinance (V of 1978)‑‑‑

‑‑‑‑S. 8‑‑Constitution of Pakistan (1973), Art .14‑‑‑Sanctity and privacy of home‑‑‑Visible departure made by the Legislature from the past provisions in enacting the provisions of S.8 of the said Ordinance is much in line and in obedience to Art. 14 of the Constitution which has placed 'dignity of man, the sanctity and privacy of home at a very high pedestal in making the same inviolable‑‑‑Change thus introduced safeguards the sanctity of home so that it is not disturbed by the police on pretext of conducting raids on private homes for arresting gamblers at the same time lending credibility to the entire exercise conducted under the provisions of S.8 of the said Ordinance.

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

‑‑‑‑Art. 201‑‑‑Decision of High Court binding on subordinate Courts‑‑­Disregard shown to such mandate would make‑the decision/judgment of such Court/Tribunal a nullity in the eye of law.

Arbad Faridullah Khan and M. Akbar Khan for Petitioner.

Dy. A.‑G. and Samiullah for the Complainant.

Date of hearing: 1st November, 2002.

P L D 2003 Peshawar 84

Before Tariq Pervez Khan and Ijaz‑ul‑Hassan, JJ

SHAH MAISER‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.207 of 2001 decided on 13th November, 2002.

(a) Criminal trial‑

‑‑‑‑ Benefit‑‑of doubt‑‑‑For the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent person regarding the truth of .the charge makes the whole case doubtful.

(b) Criminal trial---

‑‑‑‑Burden or proof‑‑‑Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt‑‑‑Finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case‑‑‑Mere conjectures and probabilities cannot take the place of proof.

Muhammad Luqman v. The State PLD 1970 SC 10 ref.

(c) West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑‑S. 13‑E‑‑‑Appreciation of evidence‑‑‑Raid was conducted on the house of the accused to apprehend a proclaimed offender but the police did not succeed in its mission‑‑‑Accused was not present in the house when recovery was effected from a room of the house during house search‑‑‑Prosecution witness had stated that ‑a the time of raid mother of the accused was present in the house which lent strength to the contention of the accused that the house was not in exclusive possession of the accused and that other people also lived in it‑‑‑Prosecution had failed to produce best evidence to establish accusation against accused:‑‑Conviction and, sentence passed against the accused were set aside and he was acquitted of the charge against him.

Abdul Fayaz Khan for Appellant.

Azhar Yousaf for the State.

Date of hearing: 13th November, 2002.

P L D 2002 Peshawar 87

Before Nasir ul Mulk and Talaat Qayyum Qureshi, JJ

THE STATE‑‑‑Appellant

Versus

RASHID ‑‑‑ Respondent

Criminal Revision No. 33 of 2002, decided on 8th October, 2002.

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

‑‑‑‑Ss. 439 & 516‑A‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss..6/7/8/9‑‑‑Customs Act (IV of 1969), Ss.16/156(1)(89)/157/178/2(s)‑‑­Superdari of vehicle‑‑‑Petitioner had challenged the order of Judge Special Court whereby he had handed over the custody of motor car in question to the respondent on Superdari‑‑‑Validity‑‑‑Respondent, admittedly was owner of the motor car in question and had produced original registration before the Judge Special Court and had also annexed copy of the same with the petition‑‑‑Registration Book showed that the motor car in question had been transferred in the name of the respondent‑‑‑Car, in question admittedly was given to Rent a Car service from where accused had obtained the same a day prior to the date of occurrence‑‑‑Such fact was corroborated by recovery of authority letter of the said Rent a Car service from the dashboard of the said car .when the same was taken into possession‑‑‑No restriction in law that such a vehicle would not be released to the bona fide owner of the vehicle who was neither accused in the commission of offence nor was associate of the actual accused‑‑‑Rights of such an owner were fully protected‑‑‑Order of release of the car did not suffer from any illegality or infirmity and was consequently maintained by the High Court.

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

‑‑‑‑S. 74‑‑‑Custody of conveyance used in commission of offence under Control of Narcotic Substances Act, 1997‑‑‑Expression "private individual" used in S.74 of Control of Narcotic Substances Act, 1997‑‑‑Section 74 of the Act does not place any embargo that such a vehicle shall not be released to its bona tide owner who is associate of the actual accused‑‑‑Words "private individual" used in the section do not include owner of the vehicle‑‑‑Had the intention of the Legislature been to deprive all .persons including owner to get vehicle released on Superdari, then instead of using words "any private individual" words "any person" should have been used.

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

‑‑‑‑S. 32(2), proviso‑‑‑Articles connected with narcotics‑‑‑Expression "owner" used' in S.32‑‑‑Scope‑‑‑Word "owner" used in proviso to S.32 is significant ‑‑‑Rights of owners who had no knowledge of the commission of offence or had no conscious hand in the crime on the owner of the vehicle who may be running a taxi‑service or had given the car to Rent a Car service or whether he had handed a vehicle to a driver for running an errand for him and had nothing to do with the crime were fully protected‑‑‑If such a vehicle, owner of which was not involved in the commission of offence was ultimately to be released on conclusion of trial, there appears to be no lawful justification to keep the same in custody for misuse of the official of the detaining agency.

Abdul Hamid v. The State 2002 PCr.LJ 666 and Niazullah v. The State 2002 PCr. LJ 97 ref.

Salahuddin, Dy. A.‑G. for the State.

Sardar Hassain for Respondent.

Date of hearing: 8th October, 2002.

P L D 2003 Peshawar 90

Before Tariq Parvez Khan and Abdul Rauf Khan Lughmani, JJ

SHER QAYUM‑‑‑Petitioner

Versus

MIR ZAMAN KHAN, ADVOCATE and 9 others‑‑‑Respondents

Writ Petition No.595 of 2001, decided on 17th May, 2002.

(a) Pleadings‑--

‑‑‑‑ Factual point not pleaded‑‑‑Effect‑‑‑Pleadings are treated as foundation in civil matters and a point having not been taken regarding factual position cannot be allowed to be taken at subsequent stage.

(b) North‑West Frontier Province Local Government Elections Rules, 2000‑‑‑-

‑‑‑‑‑R. 18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Qualification of candidate‑‑‑Election petition was filed to assail the election of returned candidates for the seats of Nazim and Naib‑Nazim on the ground that the candidate for the seat of Naib‑Nazim did not possess required educational qualification and he had produced forged and fictitious certificate of Matriculation‑‑‑Election Tribunal directed the returned candidate to produce the certificate and on failure to produce the same, .the Election Tribunal allowed the election petition and the candidates securing second highest votes were declared as returned candidates‑‑‑Plea raised by the returned candidates was that no such objection was raised at the time of scrutiny of nomination papers, matter was decided without recording of evidence and Election Tribunal could have directed for bye‑elections for the seat of Naib‑Nazim in terms of S.18‑A of North‑West Frontier Province Local Government Elections Ordinance, 2000‑‑‑Validity‑‑‑Nomination of the returned candidates was challenged with reference to R.18 of North‑West Frontier Province Local Government Elections Rules, 2000 on the ground that the candidate for Naib‑Nazim was not on the nomination day, qualified for the seat‑‑‑Law permitted to challenge the nomination of the returned candidate on the ground of lack of educational qualification on the nomination day, whether or not it was taken at the earlier stage of election‑‑­Where the candidate was not at all qualified on the very first day of nomination, he could not be a member of the concerned union council‑‑‑High Court declined to interfere with the order passed by Election Tribunal‑‑­Constitutional petition was dismissed in circumstances.

S. Masood Kausar, Bar‑at‑Law for Petitioner.

Jehanzeb Rahim and Ms. Neelam Khan for Respondents.

Tariq Javed, D.A.‑G. (P) (on Court's Notice).

Date of hearing: 8th May, 2002.

P L D 2003 Peshawar 94

Before Khalida Rachid and Muhammad Qaim Jan, JJ

KHALID AZIZ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision Petitions Nos. 19 and 20 of 2002, decided on 4th December, 2002.

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

‑‑‑‑S. 26‑‑‑Revision‑‑‑Tender of pardon to accomplice during investigation or inquiry‑‑‑Petitioners were aggrieved of the order of the Accountability Court and had assailed the said order praying to declare the pardon granted to the co‑accused/approver by Chairman NAB as illegal and without lawful authority‑‑‑Contention of the petitioners was that under S.26 of the National Accountability Bureau Ordinance, 1999, the Chairman NAB could exercise his powers of tendering pardon only when the case was at the stage of investigation or inquiry and that after the reference was submitted in the Accountability Court, the Chairman became functus officio ‑‑‑Validity‑‑­Reference against the petitioners and the co‑accused was tiled by the Chairman, NAB on 30‑12‑2000‑‑‑Co‑accused made application for becoming an approver to NAB Authorities on 8‑1‑2001 and he was granted pardon by the Chairman NAB on 24‑2‑2001‑‑‑Statement of co‑accused under S.164, Cr.P.C. was recorded by Judicial Magistrate on 20‑3‑2001‑‑‑Charge against accused was framed on 16‑1‑2002‑‑‑Statement of sixteen prosecution witnesses including examination‑in‑chief of the.co‑accused was completed on 21‑6‑2002 when on the same date application was moved by counsel for the petitioners for supply of copies of the application moved by co‑accused to be an approver, reasons recorded by the Chairman NAB for tendering pardon and statement of the co‑accused under S.164, Cr.P.C. read with S.26 of the National Accountability Bureau Ordinance, and thus all such copies should have been made part of the reference‑ and also supplied to the petitioners under S.265‑C, Cr.P.C. at least seven days prior to framing of charge‑‑­Supply of copies of proceedings qua tender of pardon after the statement of some of the witnesses and the examination‑in‑chief of the co‑accused was violative of law as without any notice to the remaining accused, co‑accused was made approver and transformed as prosecution witness‑‑‑No order on tile of the competent forum allowing the approver to be taken out from the jail for recording his statement under S.164, Cr.P.C.‑‑-No opportunity of cross‑examining the approver was afforded to the petitioners as required under S.164(1)(i), Cr.P.C., resultantly same could not be used against the petitioners under S.265‑J. Cr.P.C.‑‑‑Grant of pardon to the co‑accused under S.26 of the National Accountability Bureau Ordinance, 1999 by the Chairman NAB without approval of the Trial Court being illegal, without lawful authority and void ab initio, same was set aside by the High Court‑‑­High Court directed that examination‑in‑chief of the co‑accused as well as his statement under S.164, Cr.P.C. were not to be considered as part of prosecution evidence.

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

‑‑‑‑Ss. 26, 18 & 31‑B‑‑‑Criminal Procedure Code (V of 1898), Ss.4(k), 4(1), 337 & 265‑D‑‑‑Powers of Chairman National Accountability Bureau to tender pardon to accomplice‑‑‑Extent and scope‑‑‑Provision of S.26 of the National Accountability Bureau Ordinance, 1999 , provides that the jurisdiction of the NAB Authorities to tender pardon to the accomplice is limited to the stage of investigation or inquiry‑‑‑"Investigation" and "inquiry" are not defined in the said Ordinance, however, Ss. 4(k) & 40), Cr.P.C. define these terms‑‑‑Legislature in its wisdom has intentionally omitted the word "trial" from the provisions of S.26 of the National Accountability Bureau Ordinance, 1999 which has not been defined in the said Ordinance or in the Cr.P.C.‑‑‑Trial, however commences on framing of charge against the accused and it is a totally misconceived view that before framing of the charge, Court indulges into inquiry under S.265‑D, Cr.P.C. and the case can be considered at the stage of inquiry‑‑‑Sections 18 to 24 of the National Accountability Bureau Ordinance, 1999 deal with the scope of investigation and inquiry‑‑‑Once a reference is tiled, the Chairman, NAB loses jurisdiction and becomes functus officio and it then becomes the exclusive jurisdiction of the Trial Court‑‑‑After submission of reference if some substantive step is required to be taken in the case by the prosecution, it shall only be with the permission of the Court as provided by Ss.31‑B & 25 of the National Accountability Bureau Ordinance, 1999.

(c) Criminal trial‑

‑‑‑‑ Commencement of trial‑‑‑Trial commences on framing of the charge against the accused.

Muhammad Anwar v. Haji Malik Khair Din PLD 1952 Quetta 39 and Haq Nawaz v. State 2000 SCMR 785 ref:

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

‑‑‑‑S. 18‑‑‑Reference, filing of‑‑‑Meaning‑‑‑Filing of reference before the Accountability Court is like filing of complaint/challan in the Court of competent jurisdiction within the contemplation of 5.173, Cr.P.C.‑‑‑Once a reference is filed, the Chairman, NAB loser. jurisdiction and becomes functus officio and it then becomes the' exclusive jurisdiction of the Trial Court‑-‑If the permission of the Court.

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

‑‑‑‑S. 31‑B‑‑‑Withdrawal from prosecution‑‑‑Scope‑‑‑If the Prosecutor General Accountability after submission of reference; wishes to withdraw from the prosecution even before charge is framed he has to obtain consent of the Court.

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

‑‑‑‑S. 25‑‑‑Voluntary return‑‑‑Plea bargain‑‑‑Scope‑‑‑In the matter of plea bargaining whether before or after the commencement of trial, Chairman, National Accountability Bureau has to consider the offer made by an accused person under S.25 of the Ordinance, approval of the Court is necessary for the reason that the Court as well as the co‑accused shall know the nature of the proceedings against them and they shall not be taken by surprise.

Syed Zafar Abbas Zaidi‑for Petitioner.

Amjid Zia, Special Prosecutor and Miss Musarrat Hilali, A.A.‑G. for the State.

M. Zahoorul Haq, Bar‑at‑Law assisted by Aziz Akhtar Chughtai for Petitioner (in Cr.R. No.20 of 2002).

Date of hearing: 14th November, 2002.

P L D 2003 Peshawar 102

Before Shah Jehan Khan Yousafzai and Qazi Ehsanullah Khan Qureshi, JJ

SIKANDAR HAYAT KHAN and 4 others‑‑‑Petitioners

Versus

GOVERNMENT OF PAKISTAN through Federal Secretary, Ministry of Interior, Islamabad and 5 others‑‑‑Respondents

Writ Petition No.396 of 2000 and Civil Miscellaneous Application No.299 of 2001, decided on 2nd May, 2001.

(a) Exit from Pakistan (Control) Ordinance (XLVI of 1981)‑‑‑

‑‑‑‑S. 2‑‑‑Passports Act (XX of 1974), S.8(2)‑‑-General Clauses Act (3C of 1897), S.24‑A‑‑‑Power to prohibit exit from Pakistan, exercise of‑‑‑Audi alteram partem, principle of‑‑‑Applicability‑‑‑Necessary in normal course to afford opportunity of hearing to person concerned before taking action under S.2(1) of Exit from Pakistan (Control) Ordinance, 1981‑‑‑Ground for such action would not be communicated, if its disclosure was against public interest‑‑‑If such action was challenged, then Federal Government would satisfy Court regarding bona fides of action and protection of public interest, failing which such action could be competently struck down being ultra vires of the Constitution and prevailing law.

(b) Exit from Pakistan (Control) Ordinance (XLVI of 1981)‑‑‑

‑‑‑‑Ss. 2 & 3‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Order prohibiting exit from Pakistan‑‑‑Review, remedy of‑‑‑Such remedy could be availed only, if person concerned knew about grounds behind such action taken‑‑‑Person concerned could not ask for review, if he was not provided opportunity of hearing before such action taken or disclosure of grounds on the basis of which such order was passed‑‑­Constitutional petition would thus be maintainable.

Wajid Shamsul Hassan v. Government PLD 1997 Lah. 617 and Munawar Ali Sherazi v. Government PLD 1999 Lah. 459 fol.

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

‑‑‑‑S. 2‑‑‑Passports Act (XX of 1974), S.8(2)‑‑‑General Clauses Act (X of 1897), S.24‑A‑‑‑Constitution of Pakistan (1973), Art.15‑‑‑Power to prohibit exit from Pakistan‑‑‑Scope‑‑‑Preventing a person from traveling abroad is statutory right of Federal Government, though person against whom action is taken might be possessing legal document for journey abroad‑‑‑Such powers of Federal Government can be exercised by an authorized officer subject to limitations imposed by law.

(d) Exit from Pakistan (Control) Ordinance (XLVI of 1981)‑‑‑

‑‑‑‑S. 2‑‑‑General Clauses Act (X of 1897), S.24‑A‑‑‑Constitution of Pakistan (1973), Arts. 2A, 4, 9, 15, 25 & 199‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.9‑‑‑Constitutional petition‑‑‑Placing petitioners on exit control list to.‑ being family members of a political leader­‑‑Validity‑‑‑No reason had been disclosed in the impugned order for taking such action‑‑‑Constitutionally guaranteed rights of petitioners enshrined in Arts. 2A, 4, 9, 15 & 25 of the Constitution had been taken away simply for the reason that their family head was facing references in Ehtesab Courts‑‑­Nothing was brought on record to show that petitioners were directly involved in politics, malpractices, filtration and concealment of ill‑gotten wealth ‑‑‑Taking part in politics was neither a sin nor a crime, rather essential for a democratic set up in country‑‑‑Liberty of petitioners could not be curtailed simply for the reason that they were recorded as owners of properties with no charge of criminal liability‑‑‑Despite lapse of thirteen (13) months from issuance of impugned order, no action under National Accountability Bureau Ordinance, 1999 had been taken against petitioners qua properties in their name‑‑‑One of the petitioners was a house wife suffering from some disease, while other petitioners were engaged in their education‑‑‑Petitioners were not personally required for any criminal liability‑‑‑Properties in petitioners' name, if found ill‑gotten properties of their .head of family, could be proceeded in accordance with provisions of National Accountability Bureau Ordinance, 1999 or arty other law subject to right of a valid defence at trial in Court of competent jurisdiction‑‑‑High Court accepted Constitutional petition and set aside the impugned order.

Maj. (Red.) Mir Mazhar Qayyum's case 1999 YLR 111 ref.

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

‑‑‑‑Preamble & S.4‑‑‑Applicability of the Ordinance‑‑‑Scope‑‑‑Ordinance can come into play against a person, who has remained in political power; is or has been in public office or possessing administrative power or their associates or those who have looted public funds or financial institutions by means of their status or power.

Syed Zafar Abbas Zaidi assisted by Miss Anisa Zeb for Petitioners.

Salehuddin, Dy.A.‑G. II for Respondents.

Date of hearing: .11th April, 2001.

P L D 2003 Peshawar 114

Before Ejaz Afzal Khan and Dost Muhammad Khan, JJ

Syed CHIRAGH HUSSAIN and 10 others--- Petitioners

Versus

Begum MUHAMMAD USMAN KHAN through Legal Heir's---Respondent

Writ Petition No. 1203 of 1998, decided on 9th October, 2002.

(a) Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation (II of 1975)---

----S. 10---Dir, Chitral V Swat (Administration) Regulation (I of 1969), S.7---Constitution of Pakistan (1973). Art.199---Constitutional petition--­Dispute as to ownership of property---Decision rendered by Authority was not in conformity with remand order passed by High Court Validity --- Case had not received judicial treatment at any level of relevant hierarchy functioning under Riwaj or law germane thereto---High Court had given clear directions for decision of case in a judicial manner---Deputy Commissioner seized of the matter by ignoring directions of High Court, had struck to a quid pro quo to decide matter in his own way and according to his own whim and caprice---Deputy Commissioner being a Controlling Authority could not decide case himself without referring same to forums provided either under law or Riwaj---Such being a case of excess of jurisdiction .could not be justified by any canon of law and jurisprudence--High Court allowed Constitutional petition and remanded case for its fresh decision in accordance with law within specified time.

(b) Administration of justice---

----Quid pro quo or a via media is desirable in politics which is a game of the possible---Administration of justice in a Court of law cannot succumb to such a phenomenon in any situation whatever regardless of the expediencies, whether administrative or otherwise.

(c) Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation (II of 1975)---

----S. 10(2) & (3)---Dir, Chitral and Swat (Administration) Regulation (I of 1969), S.7---Decision of case under Riwaj or Regulation I of 1969 or Regulation II of 1975---Deputy Commissioner roll and powers discussed elaborately.

Whether case is decided under Riwaj or under Regulation I of 1969 or II of 1975 the role of Deputy Commissioner is more or less supervisory as he is just to control and supervise the proceedings of Judicial Council. Mizan-e-Shariah or Jirga whatever the case may he Deputy Commissioner has the power to override the decision of either of the forums if and when he found that the proceedings had been conducted with material irregularity occasioning miscarriage of justice, but in that case he would have to refer the matter back to the Judicial Council. Mizan-e-Shariah again or reconstitute it under the Riwaj or under the new dispensation. Deputy Commissioner under no circumstances could arrogate to himself the power of a sole and ultimate arbitor to decide the matter himself.

Neither Riwaj nor any of the Regulations vest an absolute power in the Deputy Commissioner to take a decision of a lis before him independently without referring same to the forums provided thereunder.

Deputy Commissioner being a controlling body cannot decide any case himself without referring it to the forums provided either under the law or Riwaj because even in the latter case the role of the Deputy Commissioner is by no means different from the one he had under Regulation, even the Regulation is nothing but Riwaj codified.

Ghulam Jaffar v. Mst. Zaibunnisa and 5 others PLD 1990 Pesh. 1 rel.

(d) Practice and Procedure---

----Where a statute, a custom or a usage Paving the force of law required a thing to be done in a particular manner, then same must be done in that way or not at all.

(e) Jurisdiction---

----Consent or acquiescence of parties will not enable or authorize a Court to do what is not required by law to be done as jurisdiction upon Court or statutory Tribunal is conferred by law and not by agreement or acquiescence of parties.

(f) Constitution of Pakistan (1973)--

----Art. 199---Constitutional jurisdiction of High Court---Scope---Acct done or action taken by inferior Tribunal or Court in absence or excess of jurisdiction---Such action would amount to usurpation of power---High Court would declare such action a nullity, particularly when same had occasioned injustice to parties---Principles.

Where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action beyond a sphere allotted thereto by law, such action amounts to a usurpation of power and as such is an act without jurisdiction and lawful authority, therefore, superior Courts in their discretionary jurisdiction, always invariably step in to declare it a nullity that is to say, of no legal effect whatsoever particularly when it- has occasioned injustice to the parties.

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

----Art. 199---Writ of prohibition---When issued---Total absence of jurisdiction apparent on face of proceedings in subordinate Court---High Court bound to issue a prohibition, though petitioner had consented to or acquiesced in exercise of jurisdiction by inferior Court---Principles.

Where total absence of jurisdiction appears on the face of proceedings in the inferior Court, the Court is bound to issue a prohibition, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior Court. The reason why, notwithstanding such acquiescence, a prohibition is granted, where the lack of jurisdiction is apparent on the face of proceedings, is that the case might not become a precedent, if allowed to stand without impeachment.

Muhammad Tufail v. Abdul Ghafoor PLD 1958 SC (Pak.) 201 fol.

(h) Constitution of Pakistan (1973)---

----Arts. 199 & 4---Judicial review by High Court, power of---Scope---Right of every citizen to be dealt with in accordance with law---Condition for conferment of jurisdiction on Court or Tribunal is to decide rightly, but not wrongly---Where Tribunal goes wrong in law, same goes outside jurisdiction---Where law is not correctly or properly observed, same would ­be a fit case for interference in exercise of Constitutional jurisdiction.

Utility Store Corporation of Pakistan Ltd. v. Punjab Appellate Tribunal and others PLD 1987 SC 447 fol.

Abdur Rahman Bajwa v. Sultan and 9 others PLD 1981 SC 522 ref.

Q.M. Anwar for Petitioners.

Yahya Khan Afridi for Respondent.

Dates of hearing: 7th, 8th and 9th September, 2002.

P L D 2003 Peshawar 123

Before Dost Muhammad Khan, J

TAHIR MUHAMMAD ---Petitioner

Versus

Mst. ARIFA another---Respondents

Criminal Miscellaneous No.224 of 2002, decided on 28th January, 2003.

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

----Ss. 540-A & 561-A---Penal Code (XLV of 1860), Ss.419/420/468/471--­Exemption from personal appearance in Trial Court refused to petitioner--­Validity---View taken by the Courts below in refusing exemption to petitioner from personal appearance in the Trial Court was based on mere technicalities---Physical presence of accused was not a condition precedent for granting exemption to him---Purpose for conferring a discretion on the Court by S.540-A, Cr.P.C. in granting exemption to accused from personal appearance at any stage of trial or inquiry was that the trial was not brought to halt and the Court was able to proceed and conclude it in his absence--­Where the prayer made for such exemption was based on genuine ground, its refusal certainly would be violative of the said settled principle and would defeat the very purpose for which the aforementioned provision was enacted---Impugned orders of the Courts below were consequently set aside and the accused was granted exemption from personal appearance in the Trial Court pending trial---Petition was accepted accordingly.

M. Saleem Babar v. The State PLD 1987 Lah. 288; State v. Qaim Ali Shah 1992 SCMR 2192 and Mazhar Ali Khan v. Governor of Punjab PLD 1954 Lah. 14 ref.

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

----S. 540-A---Exemption of accused from personal appearance---Physical presence of an accused before the Court is not a condition precedent for granting him exemption from appearance---Term 'before the Court' used in S.540-A, Cr.P.C. does not necessarily lead to a conclusion that it means and points towards the physical presence of the accused---Even if the said phrase 'before the Court' is held susceptible to two interpretations, even then the one which favours the accused is to be accepted and followed.

(c) Interpretation of statutes--

---- Neither the Court shall add to the statute what is omitted nor omit anything from it which is expressly mentioned therein and it shall be interpreted in a manner to advance the cause of justice by making it workable practicable and harmonious so that mischief is avoided as far as possible---Such interpretation would also make the system of justice to sail smoothly without any unnecessary obstruction.

(d) Interpretation of statutes--

---- Care should be taken and observed while interpreting a statute relating to the realm of criminal law which transgresses or encroaches upon the liberty, person or property of a subject and the interpretation be made in a manner which is to preserve such right and not to disturb the same subject of course having regard to the express language of the statute by not committing any violence to it.

State v. Qaim Ali Shah 1992 SCMR 2192 and Mazhar Ali Khan v Governor of Punjab PLD 1954 Lah. 14 ref.

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

----Preamble---Scheme---Entire scheme of the Criminal Procedure Code is to streamline, channelize and facilitate the smooth running of the system of Criminal justice: therefore, while interpreting any provision of it efforts are to be made so that neither any obstruction in its way is created, not it is thwarted in any manner and that too on the basis of technicalities simpliciter, because giving effect to the form and not to the substance would certainly defeat the ends of justice and ultimately the purpose of the law itself and such approach would definitely be prejudicial to the system itself.

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

----S. 540-A--Exemption of accused from personal appearance---Court seized of the trial or inquiry must keep in mind that a fair balance is struck and the exemption although is to be liberally granted in genuine cases, but no one is to be, permitted to misuse the same in any manner.

Nek Nawaz Khan Awan for Petitioner.

Imtiaz Ali, A.A.-G. for the State, Date of hearing: 28th January, 2003.

P L D 2003 Peshawar 128

Before Nasir-ul-Mulk and Tariq Parvez Khan, JJ

Mst. SHEHNAZ and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.399 of 2002, heard on 20th November, 2002.

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

----S. 9(c)---Appreciation of evidence---According to the report of Chemical Examiner only one parcel containing heroin weighing three grams had been received in his office out of eight samples---Even if the recovery of the narcotics was taken to be proved it was not known that the said particular sample out of the eight samples was recovered from which of the two accused ladies---Benefit of such doubt was consequently extended to both the accused and they were acquitted accordingly.

Noor Alam Khan for Appellants.

Hamid Farooq Durrani, Dy. A.-G. for the State.

Date of hearing: 20th November, 2002.

P L D 2003 Peshawar 130

Before Malik Hamid Saeed and Fazal-ur-Rehman Khan, JJ

NEK MUHAMMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.98 of 2001, decided on 6th February, 2003.

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

----Ss. 9(c) & 9(b)---Appreciation of evidence---Investigating Officer had only separated sample for chemical analysis from one packet out of the total lot of 32 packets recovered from the truck---Remaining heroin could not be produced by the prosecution before the Court at the time of trial as the same had allegedly been destroyed---Culpability of accused, in circumstances, could only be treated with regard to only one packet from which the sample was taken which contained one Kg. heroin---Conviction of accused was consequently altered from S.9(c) to S.9(b) of the Control of Narcotic Substances Act, 1997, and his sentence of imprisonment for life was reduced to six years' R.I. with reduction in fine.

Farid Gul v. The State 2002 PCr.LJ 1810 ref.

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

----S. 9(c)---Appreciation of evidence---Accused was only sitting in the truck as a cleaner at the relevant time---Prosecution had failed to prove that the accused had knowledge of the narcotics concealed in the secret cavities of the truck ---Accused was acquitted in circumstances.

1997 SCMR 345 ref.

Abdul Latif Baloch for Appellants.

Shaukat Hayat Khan Khakwani, Dy. A.-G, for the State.

Date of hearing: 6th February, 2003.

P L D 2003 Peshawar 134

Before Fazlur Rehman Khan, J

Mst. ZAREENA BEGUM‑‑‑Petitioner

Versus

MUHAMMAD YOUNAS‑‑‑Respondent

Civil Revision Petition No.61 of 2002, decided on 15th January, 2003.

(a) North‑West Frontier Province Pre-emption Act (X of 1987)‑‑

‑‑‑‑S. 24‑‑‑West Pakistan General Clauses Act (VI of 1956), Ss.2(38) & 8‑‑­Limitation Act (IX of 1908), S.4‑‑‑North‑West Frontier Province Adaptation of Laws Order, 1975, S.2‑‑‑Deposit of 1/3rd of sale price‑‑‑Expression "month"‑‑‑Reckoning of‑‑‑Two months' time allowed to plaintiff on 23‑7‑2001 to deposit 1/3rd of sale price, which he deposited on 24‑9‑2001‑‑Trial Court dismissed suit for making deposit beyond stipulated period, but Appellate Court set aside such order‑‑‑Contention of defendant was that word "month" was normally considered a lunar month of thirty days as defined in dictionary, thus, last date for deposit of money would fall on 20‑9‑2001 and plaintiff was late by 4 days‑‑‑Validity‑‑‑Provisions of West Pakistan General Clauses Act, 1956 as adapted by North‑West Frontier Province Adaptation of Laws Order, 1975 would apply as North‑West Frontier Province Pre­emption Act, 1987 was a Provincial Statute‑‑‑Word "month" as defined in S.2 (38) of West Pakistan General Clauses Act, 1956 would mean a month reckoned according to British calendar‑‑‑After excluding day on which order was passed i.e. 23‑7‑2001 from counting, first month of period would start from 24‑7‑2001 and would end on 23‑9‑2001, but 23‑9‑2001 being holiday on account of Sunday, plaintiff under S.4 of Limitation Act was entitled to deposit amount on next day i.e. 24‑9‑2001, when Court re­opened‑‑‑Order of Appellate Court was quite correct in circumstances.

(1970) 1 Andh. LT 98; 1989 CLC 1344 and 1992 SCMR 117 ref.

(b) West Pakistan General Clauses Act (VI of 1956)‑‑‑

‑‑‑‑Ss. 2(38) & 8‑‑‑Limitation Act (IX of 1908), S.4‑‑‑Expression "month"‑‑­Reckoning of‑‑‑While counting such period, the day on which order was passed, is to be excluded‑‑‑After excluding such day, if next day from which period is to be counted falls on first day of month, then period would be taken from the first to last day of month‑‑‑Where day from which period is to be counted, does not fall on first day of calendar month, but on any other day, then same would start from such day ending with day of next month numerically corresponding.

(c) Words and phrases‑‑‑

‑‑‑‑"Month"‑‑‑Meaning.

Words and Phrases, Permanent Edn., West Publishing Company; Iyer's Law Lexicon; Words and Phrases legally defined by John B. Saunders, 2nd Edn. 1969, p.289 and Corpus Juris Secundum, Vol. 86, p.840 ref.

Ali Jan for Petitioner

Gohar Zaman Khan Kundi for Respondent.

Date of hearing: 25th November, 2002.

P L D 2003 Peshawar 138

Before Shah Jehan Khan Yousafzai, J

GHULAM MUSTAFA SHAH alias PAPA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.284 and Criminal Revision No. 18 of 2002, decided on 31st January, 2003.

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

----Ss. 497 & 439---Penal Code (XLV of 1860); S.302/34---Juvenile Justice System Ordinance (XXII of 2000), S.4(3)---Bail---Confessional statement of co-accused had been reduced into a report of the Daily Diary with mala fide intention by the Investigating -Officer to involve the accused as his accomplice in the murder of the deceased and for providing of harbour after the commission of the crime---Said report of the co-accused was not fully supported by his judicial confession---No evidence connecting the accused with the offence was available on record who could be better a prosecution witness against his co-accused---Accused even otherwise was a. minor---Bail was allowed to accused in circumstances---Accused according to the documents produced on record appeared to be below the age of eighteen years and he could only be tried by a Court constituted under the Juvenile Justice System Ordinance, 2000---Prosecution was consequently directed to submit the case of accused to the Said Court---Revision petition was accepted accordingly.

Sanaullah Khan Gandapur and S.Abid Hussain Shah for Petitioner.

Shaukat Hayat Khan, Dy.A.-G. for the State.

Abdul Latif Khan Baloch and Ghulam Hur Khan for Respondent No.2.

Date of hearing: 31st January, 2003.

P L D 2003 Peshawar 142

Before Malik Hamid Saeed and Fazlur Rehman Khan, JJ

MUHAMMAD AKRAM---Petitioner

Versus

THE STATE---Respondent

Writ Petition No. 139 of 2002, decided on 6th February, 2003.

Penal Code (XLV of 1860)---

----S. 365-A---Suppression of Terrorist Activities (Special Courts) Act (X of 1975), S.2 & Sched--Anti-Terrorism Act (XXVII of 1997), Ss.6, 38 & 39-B [as inserted by Anti-Terrorism (Amendment) Ordinance (XXXIX of 2001)]---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Case against accused fell within the definition of "terrorism" as envisaged in cls.(a) & (e) of subsection (2) of S.6 of the Anti-Terrorism Act, 1997, which was triable by the Anti-Terrorism Court---Accused if proved guilty would be liable to punishment as provided in law, at the time when the offence was committed---Offence having been committed before the commencement of the Anti-Terrorism Act, 1997, case against accused was ordered to be transferred from Sessions Court to Anti-Terrorism Court for trial within the meaning of S.38 of the Anti-Terrorism Act, 1997---Constitutional petition was accepted accordingly.

S. Zafar Abbas Zaidi for Petitioner.

Shaukat Hayat Khan Khakwani, Dy.A.-G. for the State.

Muhammad Karim Anjum, Salamullah Khan Ranazai and Allah Nawaz Khan for Respondents.

Date of hearing: 6th February, 2003.

P L D 2003 Peshawar 146

Before Malik Hamid Saeed and Shahzad Akbar Khan, JJ

KARIM ULLAH---Petitioner

Versus

SHABANA and 2 others---Respondents

Writ Petition No. 1102 of 2001, decided on 16th January, 2003.

Islamic Law----

----Divorce---Dissolution of marriage on ground of Khula'---Court has the powers to refuse the return of the dowered property/amount to husband or to release him from payment of dower where due to his cruelty she was compelled to resort to Khula'---Principles.

Al-Qur'an: Sura Baqara, Verce 229; Sura Nisa, Verse 129; Tatheem-ul-Qur'an, Vol I, p.175; Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi PLD 1959 (W.P.) Lah. 566; Durrul Mukhtar (Urdu), Vol. II, p.181; translated by Maulvi Khurram Ali; Fatawa-i-Alamgiri, Vol. II, p.507; Ainul Hidaya translated by Allama Maulana Syed Amir Ali, p.270; Majmooa Qawaneen-e-Islam by Dr. Tanzeel-ur-Rehman, Vol. II, p.580; Fathul Bari, Vol. 9, p.402; Kitab-ul-Fiqh Ala Mazaahib-e-Arbaa written by Abdur Rehman Aljazeeri translated in Urdu by Manzoor Ahsan Abbasi, Vol IV, p.485; Khurshid Bibi's case PLD 1967 SC 97 and Anees Ahmad v. Uzma PLD 1998 Lah. 52 ref.

Muhammad Ejaz Khan for Petitioner.

Issa Khan for Respondents.

Date of hearing: 16th January, 2003.

P L D 2003 Peshawar 153

Before Khalida Rachid and Abdul Rauf Khan Laghnrani, JJ

PAKISTAN TELECOMMUNICATION COMPANY LIMITED‑‑‑Petitioner

Versus

PROVINCE OF N.‑W.F.P. through Secretary, Excise and Taxation, Civil Secretariat, Peshawar and 2 others‑‑‑Respondents

Writ Petition No.609 of 2002, decided on 26th February, 2003.

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

‑‑‑‑S. 4‑‑‑Pakistan Telecommunication (Re‑organization) Act (XVII of 1996), S.34‑‑‑Constitution of Pakistan (1973), Art. 165. & 199‑‑­Constitutional petitions‑‑-Levy of tax under S. 4, West Pakistan Urban Immovable Property. Tax Act, 1958‑‑‑Claim of exemption‑‑‑Pakistan Telecommunication Company Limited sought the indulgence of the High Court under Art. 199 of the Constitution to declare the levy of tax levied under West Pakistan Urban Immovable Property Tax Act, 1958 on the properties of the Company as illegal, without lawful authority and ultra vires of the provisions of Art. 165 of the Constitution‑‑‑Validity‑‑‑Company having been registered under the Companies Ordinance, 1984 and its accounts were also to be audited in accordance with the said Ordinance, thus was a separate legal entity, therefore, the property and income of the Company was neither the property of the Federal Government nor exempt from the tax under West Pakistan an I le Property Tax Act, 1958‑‑‑Principles.

Under " section 34 of the Pakistan Telecommunication Re­organization Act, 1996, the Pakistan Telecommunication Company (PTCL) was formed to be incorporated under the Companies Ordinance. 1984 and is limited by shares. It was created with the principal objects of provision of domestic and international and related services consistent with the provisions of Act of 1996. After the petitioner‑company was formed, the Excise and Taxation Department, Government of N.‑W.F.P., took a view that the property of PTCL was liable to property tax under the Urban Immovable Property Tax Act. In pursuance thereof, demand notices were served upon the petitioner. The demand was resisted on the plea that property of the Federal Government was vested in the petitioner (PTCL), therefore, no tax could be levied against it. The plea of the petitioner did not prevail with the respondents/department.

The questions for decision were whether the properties of the petitioner‑company were immuned from the property tax under Article .165 of the Constitution being the properties of the Federal Government and that the income accrued to the PTCL/petitioner could be deemed to be the income of the Federal Government within the contemplation of Article 165 of the Constitution.

The scope and object of Article 165, Constitution of Pakistan is that the public property or income accruing to the Federal Government is not liable to taxation by an Act of any Provincial Assembly nor can the property or income of a Provincial Government is liable to taxation under the Act of Parliament or Provincial Assembly but if a trade or business is carried on by the Provincial Government outside its Province, an Act of Parliament or the Government of the Province in which such trade or business is carried on can subject to tax any property used in connection' with that trade or business or any income arising from that trade or business.

Where trade or business carried on by the State and income derived through its department, as it used to be through erstwhile Telegraph and Telephone Department, the said income is income of the Government. But controversy arises where the trade or business is carried on by the body established through a Notification issued under the relevant provisions of the Act and such body has a personality of its owner, distinct from that of the State.

PTCL is established under the Act of 1996. This Act was promulgated to re‑organize the Telecommunication system in the country. Under section 34 (2). seven persons shall be nominated by the Federal Government to subscribe to the memorandum and Articles of Association of the company. Clause (3) of section 34 provides that initially all the shares shall be held in trust for the President of Pakistan. Clause (6) authorizes the Federal Government to notify the date for the election of the Board of Directors consisting of seven members in accordance with the provisions of the Companies Ordinance. 1984. Section 35 suggests the vesting of all the rights, property and liabilities of the former corporation in the petitioner­ company and four aforesaid entities. By virtue of section 34 (4), the Federal Government is authorized to transfer certain shares in the company to general public. Currently 88 % shares are owned by the Federal Government and 12 % shares are floated in the private sector.

Though seven subscribers to memorandum are nominated by the Federal Government but they need not be beneficially interested in the shares for which they have subscribed. Admittedly, major shares in the company are owned by the Federal Government but it cannot be said that the income of the petitioner‑company be claimed by the shareholders. Shareholders are only entitled to dividend approved by the Board of Directors in the Annual General Meeting of the shareholders. Therefore, the profit and loss of the company would be profit and loss of the company and not the shareholders. Hence the income of the PTCL/petitioner cannot be said to be the income of the Federal Government which is one of the shares holders in the company having a separate legal entity. Being a shareholder, the Federal Government may decide to float its more shares in the stock exchange/general public at the current rate or at the price established by the stock exchange market, therefore, it may reduce its shares from 88% to any lesser quantity if so wishes and may lose the status of major shareholder. Hence it cannot be said that the shareholders own the property of the company. In such circumstances, the doctrine of lifting of the veil of incorporation cannot be invoked.

The PTCL/petitioner formed under section 34 (6) of the Act was registered under the Companies Ordinance, 1984. Board of Directors of the petitioner‑company consisting of seven directors were to be elected in accordance with the provisions of the Companies Ordinance, 1984. Section 37(3) provided that the accounts of the company were to be audited in accordance with the provisions of the Companies Ordinance, 1984.

Therefore, the property and income of the petitioner was not the property and income of the Federal Government.

Pakistan Telecommunication Corporation's case (Writ Petition No.657 of 1994) distinguished.

Central Board of Revenue and another v. The Sindh Industrial Trading Estate Ltd. PLD 1985 SC 97; PLD 1971 SC 585; Pakistan Telecommunication Corporation v. Peshawar Municipal Corporation Writ Petition No.657 of 1994; Andhra Pradesh State Road Transport Corporation .by Chief Executive Officer, Hyderabad v. The Income Tax Officer, B.I.B. Ward, Hyderabad AIR 1964 SC 1486; National Fertilizer Marketing Ltd. v. Secretary, Local Government 1992 MLD 1203; Lt.‑Col. Shujauddin Ahmad v. Oil and Gas Development Corporation 1971 SCMR 566 and PLD 1971 SC 167 ref.

Hamid Khan and Suleman Aslam Butt for Petitioner.

Jehanzeb Rahim, Bar‑at‑Law, A.‑G., N.‑W.F.P. and Shaukat Hussain for Respondents.

Date of hearing; 17th December, 2002.

JUDGMENT

KHALIDA RACHID, J.‑--‑Through instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, Pakistan Telecommunication Company Limited (hereinafter referred to as the PTCL) sought the indulgence of this Court to declare the levy of tax under West Pakistan Urban Immovable Property Tax Act, 1958 on the properties of the petitioner as illegal, without lawful authority and ultra vires the provisions of Article 165 of the Constitution.

1. The impugned claim is assailed substantially on two‑fold grounds. Firstly, that PTCL is a body corporate, created, controlled and owned by the Federal Government, its properties being vested in the petitioner, therefore, by virtue of section 4 of the West Pakistan Urban Immovable Property Tax Act, 1958 and Article 165 of the Constitution; the same are exempted from levy of any tax. Secondly, that point in issue of the instant case stands decided by this Court in the case of Pakistan Telecommunication Corporation v. Peshawar Municipal Corporation (Writ Petition No.657/94 and by the Lahore High Court in Writ Petition No.1451/94 (Pakistan Telecommunication Corporation v. Province of Punjab and others) wherein Pakistan Telecommunication Corporation (commonly known as PTC) created under Pakistan Telecommunication Corporation Act, 1991 (hereinafter referred to as the Act of 1991) had been held exempt from payment of octroi charges etc. being controlled and managed by the Federal Government and as such, the. purposes and functions of the petitioner‑company being similar to the purposes and functions of the PTC is also entitled to the same benefits.

2. Amplifying the first ground, Mr.Hamid Khan, assisted by Salman Aslam Butt, urged that under section 12 of the Act of 1991, all assets and liabilities of the erstwhile Telephone and Telegraph Department were transferred and vested in Pakistan Telecommunication Corporation (PTC) which has been declared immuned from payment of taxes being the properties of the Federal Government by this Court in Writ Petition No.657/94. Similarly, under section 35 of Pakistan Telecommunication (Re­organization) Act, 1996 (hereafter referred as the Act of 1996), the properties, rights and liabilities of the defunct PTC are vested in PTCL/petitioner, therefore, the petitioner‑company being the successor of the PTC is also entitled to the same exemptions and protection. Referring to section 6 (2‑A) of the Act of 1996, the learned counsel insisted that any power, concession, privilege granted to the Telephone and Telegraph Department were mutatis mutandis deemed to have been granted to PTC under the Act of 1991 which shall mutatis mutandis be carried to the PTCL under the Act of 1996 as well, therefore, the exemptions available to the former Telephone and Telegraph Department and later on to the PTC should also be extended to PTCL. Developing his argument further, the learned counsel submitted that under Article 165 of the Constitution, the properties of the Federal Government being exempt from payment of property tax, the veil of incorporation created under the Act of 1996 maybe lifted and all the benefits and privileges available to the Federal Government may also be made available to the PTCL/petitioner. In this context, reference was made to PLD 1985 Supreme Court 97 and PLD 1971 Supreme Court 585. The next point which has been urged by Mr. Hamid Khan is in regard to the decision of this Court in the case of the Pakistan Telecommunication Corporation v. Peshawar Municipal Corporation (Writ Petition No.657/94), decided on 22‑12‑1998. The learned counsel attempted to argue that it was held and declared that the exemptions enjoyed by the former Telephone and Telegraph Department of the Federal Government were also available to the Pakistan Telecommunication Corporation being a body created, controlled and managed by the Federal Government and, therefore, veil of incorporation created under the Act of 1991 by establishment of the Corporation was directed to have been lifted and properties of the PTC were given protection under Article 165 of the Constitution, therefore, the PTCL/petitioner, created under the Act of 1996 should have been granted the same exemption.

3. Replying to the exhaustive submission of the learned counsel for the petitioner, Mian Shaukat Hussain, Advocate, appearing for the respondent/Excise and Taxation Department advanced sole argument that petitioner‑company being registered under the Companies Ordinance, 1984, its properties are not exempted from payment of property tax under Article 165 of the Constitution. The learned Advocate‑General, Barrister Jehanzeb Rahim, despite our utter desire, did not argue the case independently and left the case to be defended by the learned counsel for the respondent/ Excise and Taxation Department.

4. The learned counsel for the parties, at the outset, informed us that leave to appeal against the order of this Court in Writ Petition No.657/94 (The Pakistan Telecommunication Corporation v. Peshawar Municipal Corporation) has been granted by the august Supreme Court but since no .restraining order was in field, the learned counsel opted to proceed with the case.

5. Before the establishment of the Pakistan Telecommunication Corporation (hereinafter referred to as the PTC) through Pakistan Telecommunication Corporation Act, 1991 (Act XVIII of 1991), the telecommunication system of the country was run by the Federal Government's department of the Telephone and Telegraph that was exempted from any tax under Article 165 of the Constitution. Subsequently the Pakistan Telecommunication (Re‑organization) Act, 1996 (XVII of 1996) was promulgated and the Act of 1991 was repealed subject to certain savings specified under section 59 of the Act of 1996. To provide reorganization following four corporate bodies having perpetual and a common seal with powers to acquire and hold property both movable and immovable and to sue and be sued by their names, were established:

(1) Telecommunication Authority established under section 3;

(2) Frequency Allocation Board established under section 42;

(3) National Communication Corporation under section 41;

(4) The Pakistan Telecommunication Employees Trust established under section 44 of the Act, 1996.

Under section 34 of the Act of 1996, the Pakistan Telecommunication Company (PTCL) was formed to be incorporated under the Companies Ordinance, 1984 and is limited by shares. It was created with the principal objects of provision of domestic and international and related services consistent with the provisions of Act of 1996. After the petitioner­ company was formed, the Excise and Taxation Department, Government of N.‑W.F.P., took a view that the property of PTCL was liable to property tax under the Urban Immovable Property Tax Act. In pursuance thereof, impugned demand notices were served upon the petitioner. The demand was resisted on the plea that property of the Federal Government was vested in the petitioner, therefore, no tax could be levied against it. The plea of the petitioner did not prevail with the respondents/department. Hence the present petition.

1. The sole question which calls for our decision is whether the properties of the petitioner‑company are immuned from the property tax under Article 165 of the Constitution being the properties of the Federal t Government. To resolve the question at issue in the case, we may first revert to determine as to whether income accrued to the PTCL/petitioner can be deemed to be the income of the Federal Government within the contemplation of Article 165 of Constitution reads as under:‑‑

" 165. Exemption of certain public property from. taxation.‑‑(1,) The Federal Government shall not, in respect of its property or income, be liable to taxation under any Act of Provincial Assembly and, subject to clause (2), a Provincial Government shall not.. in respect of its property or income, be liable to taxation under Act of (Majlis­e‑Shoora (Parliament) or under Act of the Provincial Assembly of any other Province.

1. If a trade or business of any kind is carried on by or on behalf of the Government of a Province outside that Province, that Government may, in respect of any property used in connection with that trade or business or any income arising from that trade or business, be taxed under Act of (Majlis‑e‑Shoora) (Parliament). or under Act of the Provincial Assembly of the Province in which that trade or business is carried on.

2. Nothing in this Article shall prevent the imposition of fees for services rendered."

The scope and object of the above provision is that the public property or income accruing to the Federal Government is not liable to taxation by an Act of any Provincial Assembly nor can the property or income of a Provincial Government is liable to taxation under the Act of Parliament or Provincial Assembly but if a trade or business is carried on by the Provincial Government outside its Province, an Act of Parliament or the Government of the Province in which such trade or business is carried on can subject to tax any property used in connection with that trade or business or any income arising from that trade or business.

1. There could be no cavil with the proposition that where trade or business carried on by the State and income derived through its department, as it used to be through erstwhile Telegraph and Telephone Department, the said income is income of the Government. But controversy arises where the trade or business is carried on by the body established through a Notification issued under the relevant' provisions of the Act and such body has a personality of its owner, distinct from that of the State.

2. As observed above, PTCL is established under the Act of 1996. This Act was promulgated to re‑organise the Telecommunication system in the country. Under section 34(2), seven persons shall be nominated by the Federal Government to subscribe to the memorandum and Article of Association of the Company. Clause (3) of section 34 provides that initially all the shares shall be held in. trust for the President of Pakistan. Clause (6) authorises the Federal Government to notify the date for the election of the Board of Directors consisting of seven members in accordance with the provisions of the Companies Ordinance, 1984. Section 35 suggests the vesting of all the rights, property and liabilities of the former Corporation in the petitioner‑company and four aforesaid entities. By virtue or section 34(4), the Federal Government is authorised to transfer certain shares in the company to general public. As informed by the learned counsel for the petitioner that currently 88% shares are owned by the Federal Government and 12 % shares are floated in the private sector.

3. Though seven subscribers to memorandum are nominated by the Federal Government but they need not be beneficially interested in the shares for which they have subscribed, Admittedly, major shares in the company are owned by the Federal Government but it cannot be said that the income of the petitioner‑company be claimed by the shareholders. Shareholders are only entitled to dividend approved by the Board of Directors in the Annual General Meeting of the shareholders. Therefore, the profit and loss of the company would be profit and loss of the company and not the shareholders. Hence the income of the PTCL/petitioner cannot be said to be the income or the Federal Government which is one of the shares holders in the company having a separate legal entity. Being a shareholder, the Federal Government may decide to float its more shares in the stock exchange/general public at the current rate or at the price established by the stock exchange market, therefore, it may reduce its shares from 88 % to any lesser quantity if so wish and may lose the status of major shareholder. Hence it cannot be said that the shareholders own the property of the company. In such circumstances, the i doctrine of lifting of the veil of incorporation cannot be invoked. Similar question was raised before the Supreme Court of India in the case The Andhra Pradesh State Road Transport Corporation by its Chief Executive Officer, Hyderabad v. The Income Tax Officer, BIB Ward, Hyderabad (AIR 1964 Supreme Court 1486). The appellant in that case was public corporation established .in 1958 under the Road Transport Corporation Act, 1950. Before 1958, since transport was controlled by the Government Department, it was exempt from income‑tax under Article 289 of the Constitution of India. After establishment of Corporation in 1958, the Income Tax Authorities assessed tax on the income of the Corporation. The Corporation denied the payment of tax on the pretext that income of the Corporation was income of the State and, therefore, claimed exemption under Article 289 of the Constitution of India. However, the assessment orders issued by the Income Tax Authorities were challenged before the Andhra Pradesh High Court. The High Court of Andhra Pradesh held that the appellant was not a State‑owned Corporation and it was not carrying on business on behalf of the State, therefore, no exemption from the tax can be claimed. In appeal before the Supreme Court of India, the judgment of the High Court was upheld and it was declared that the income made by the private or public Corporation was not the State income because a Corporation under the law has a distinct personality from its shareholders. The relevant para. of the judgment is reproduced as follows:‑‑

"There is no doubt that the bulk of the capital is contributed by the State Government and a small proportion by the Central Government, and in that sense, the majority of shares are at present owned by the State Government. There is also no doubt that the Corporation is a State‑controlled Corporation in the same sense that all the material stages and in all material particulars, the activity of the Corporation is controlled by the State; but it is clear that all other citizens may be admitted to the group of shareholders, and from that point of view, the Act contemplates contribution of the capital for the Corporation not only by the Central and the State Government, but also by the citizens. The main point which we are examining at this stage is: is the income derived by the appellant from its trading activity, income of the State under Art.289(1)? In our opinion, the answer to this question must be in the negative. Far from making any provision which would make the income of the Corporation, the income of the State, all the relevant provisions emphatically bring out the separate personality of the Corporation and proceed on the basis that the trading activity is run by the Corporation and the profit and loss that would be made as a result of the trading activity would be the benefit and loss of the Corporation. There is no provision in the Act which has attempted to lift the veil from the fact of the Corporation and thereby enable the shareholders to claim that despite the form which the reorganization has taken, it is the shareholders who run the trade and who can claim the income coming from it as their own."

1. Likewise issue was taken in the case of National Fertilizer Marketing Ltd. v. Secretary, Local Government (1992 MLD 1203) wherein it was held that the petitioner‑company incorporated under the Companies Ordinance, 1984 and being a separate entity notwithstanding the fact that its shares were owned by the Government neither its properties nor income would be deemed to be of Federal Government. Therefore, goods of the petitioner‑Company were, held not to be exempt from the payment of taxes under provision of Article 165 of the Constitution. We may also refer to the case of Lt.‑Col. Shujauddin Ahmad v. Oil and Gas Development Corporation (1971 SCMR 566) wherein the petitioner claimed to be Government servant and therefore, could not be terminated from service by the respondents. The Hon'ble Supreme Court held:‑‑

"The petitioner now seeks special leave to appeal and it is contended on his behalf that the learned Judge in the High Court was wrong in taking the view that the ratio of the decisions of the Supreme Court cited above was applicable in this case. According to him, the respondent‑Corporation was in all respects a Government Department, for, the Government contributed the entire capital of the Corporation, appointed all its directors and could remove them at its discretion. The Board of Directors of the Corporation also function subject to the instructions of the Central Government. It had no powers even to borrow or to raise funds without the consent in writing of the Central Government.

In these circumstances, it is urged that the respondent‑Corporation being under the Executive Control of the Government was performing functions of the Government and therefore, every one, who was employed by the Corporation, was under, Article 176 of the Constitution, a person holding a civil post to connection with the affairs of the Centre, to whom the guarantees given by Article 176 applied. Service in the Corporation was also, it is contended, service of Pakistan within the meaning of Article 242 of the Constitution of 1962.

We are unable to agree with this contention The provisions of the Statutes, under which the respondent‑Corporation, the East Pakistan Industrial Development Corporation and other statutory bodies had been created in Pakistan, are not radically different. There, too the Government holds the bulk of the shares, appoints a Managing Director and Chairman of the Board, audits the accounts of the statutory Corporation through its own appointed Auditors and has the powers to direct those Corporations to carry out its instructions.

The consistent view of this Court hithertofore has been that the employees of such statutory Corporations do not acquire the status of Government servants nor are the guarantees given by the Constitution applicable in their case. The High Court was, therefore, in our view, right in vacating the order of interim injunction for according to the law of Master and Servant a contract of service cannot be specifically enforced."

The precedent the Central Board of Revenue and another v. The Sindh Industrial Trading Estate Ltd. (PLD 1985 Supreme Court 97) relied upon by the learned counsel for the petitioner, wherein the august Supreme Court while maintaining the judgment of Division Bench of the High Court of Sindh qua the lifting of the veil of incorporation and granting exemption to the SITE under Article 165 of the Constitution held that the SITE Company was performing functions like department of Government and income of the company was income of the Government but also observed that controversy regarding the lifting of the veil of incorporation would be based on the facts and circumstances of each case. Similarly, doctrine laid down in PLD 1971 Supreme Court 167 would not be applicable. As to clause (a) to subsection (2) of section 6 of the Act of 1991, regarding conferment of all the powers, privileges or concession granted to Telephone and Telegraph Department on the PTC have been discussed in detail in Writ Petition No.657/94 and it was held that the concession could not be equated with the exemption.

1. Turning now to the second' contention of the learned counsel for the petitioner that point in issue has already been decided by this Court in the case of The Pakistan Telecommunication Corporation (Writ Petition No.657/94, we, while determining the scope of the Act of 1991 believe that case of the PTC (W.P No.657/94 is distinguishable in its formation, effect and functions vis‑a‑vis Act of 1996. The PTC was established under section 3 of the Act of 1991. Section 4 provides general direction and administration of affairs vested in the Board consisting the Chairman who was a full time officer and was to hold office for a period of three years subject to such terms and conditions as determined by the Federal Government. The resignation of the Chairman was to take effect only when accepted by the Federal Government. Under section 10, the Chairman, Directors, Officers and servants of the PTC were deemed to be the public servants within the meaning of section 21 of PTC. In performing its functions under section 6 the Corporation was required to be guided by the instructions given by the Federal Government. The Corporation was submit to the Federal Government the annual report of its affairs which was to be laid before the Parliament. The Corporation was also required to provide the Federal Government any return statement, statistics or other information regarding any matter under the control of the Corporation when so asked. The tariffs at which the Corporation was to provide telecommunication services to the customers was to be determined by the Board with the prior approval of the Federal Government. The accounts of Corporation were to be audited by Auditor‑General of Pakistan. The Corporation was to comply with the directions of the Federal Government or Public Accounts Committee of the National Assembly for the rectification of an audit objection. The Corporation could be wound up only under the order of the Federal Government and in such manner as Federal Government may direct. Under section 25 for removing any difficulty in giving effect to any, provision of the Act of 1991, the order of the Federal Government was to be sought.

2. As against this, the PTCL/petitioner formed under section 34(6) of the Act to be registered under the Companies Ordinance, 1984. Board of Directors of the petitioner‑company consisting of seven directors are to be elected in accordance with the provisions of the Companies Ordinance, 1984. Section 37(3) provides that the accounts of the company are to be audited in accordance with the provisions of the Companies Ordinance, 1984.

3. In view of above discussion, decision in PTC (W.P.No.657/94) would have lest implication/application on the merits of the present case. Since the petitioner is not the successor of the former PTC in all forms. Therefore, the property and income of the petitioner is not the property and income of the Federal Government.

4. Before parting with the judgment, we may observe with regret that no assistance whatsoever was given to us on behalf of the respondents The learned counsel for the respondent/Excise and Taxation did not prepare the case to full extent so as to ably argue the cause of respondents with full esteem.

5. In the result, this petition fails and is dismissed with no order as to costs.

M.B.A./760/P Petition dismissed.

P L D 2003 Peshawar 164

Before Fazlur Rehman Khan, J

MUHAMMAD HANIF and another ---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.43 of 2002, decided on 30th April, 2003.

Penal Code (XLV of 1860)---

----Ss. 378/486/452/342/411/34---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7(c)---Appreciation of evidence---Allegation against accused persons was that they entered the house of complainant duly armed with daggers and took valuable articles from house of complainant---Accused had contended that in circumstances it was purely a case of robbery by commission of lurking house-trespass falling under relevant sections of P.P.C. and not a case falling under any clause of S.6(2) or any other provision of Anti-Terrorism Act, 1997---Validity---Section 6(2)(c) of Anti-Terrorism Act, 1997 speaks of "involves grievous damage to property"---Damage to property was quite a distinct act from dishonestly/forcibly taking away property out of possession of owner/possessor---In former case (damage to property), damage was done to property, whether movable or immovable, whether partially or totally, without taking possession of the property while in latter case (dishonestly/forcibly taking away property out of possession of owner), movable property vide definition of theft contained in S.378, P.P.C., was dishonestly taking away of possession of any person without damage to property---Case of accused, in. circumstances, would not fall within provision of S.6(2)(c) of Anti-Terrorism Act, 1997---In order to bring the case within Jurisdiction of Special Court constituted under Anti-Terrorism Act, 1997, it would be necessary that offence must fall in any of the provisions of cls. (a) to (n) of subsection (2) or (3) of S.6 of Anti-Terrorism Act, 1997 and must fulfil one of the conditions laid down in cl. (b) or (c) of subsection (1) of S.6 of Anti-Terrorism Act, 1997---An act would amount to terrorism only where use or threat of action was designed to coerce and intimidate the Government or the public or a section of the public or community or sect or creating a sense of fear or insecurity in society or same was made for the purpose of advancing a religious, sectarian or ethnic cause---In the present case though one of the conditions laid down in S.6(1)(b) & (c) namely "by creating a sense of insecurity in the society" was available, but offence against accused did not fall in any of cls.(a) to (n) of subsection (2) of S.6 or within provisions of subsection (3) of Anti-Terrorism Act, 1997---Anti-Terrorism Court, in circumstances, had no jurisdiction to try the accused persons--­Conviction and sentences of accused persons and acquittal of co-accused, were set aside and case was remanded to the Sessions Judge who would conduct trial of accused persons de novo in accordance with law.

PLD 2003 SC 224 ref.

Gohar Zaman Khan Kundi for Appellants.

Shaukat Hayat Khan Khakwani, D.A.-G. for the State.

Hamidullah Khattak for the Complainant.

Date of hearing: 22nd April, 2003.

P L D 2003 Peshawar 169

Before Malik Hamid Saeed and Shah Jehan Khan, JJ

FAZLI-E-SUBHAN---Petitioner

Versus

Mst. SABEREEN and 3 others---Respondents

Writ Petition No. 137 of 2003, heard on 11th March, 2003.

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----Ss. 7 & 8---Talaq---Effect of enactment of Muslim Family Laws Ordinance, 1961---Legislature had, to a great extent, trammelled and curtailed the arbitrary power of husband to divorce his wife---Muslim Family Laws Ordinance, 1961 had abolished the practice of disapproved form of 'Talaq' and mode prescribed in the Ordinance was that of a 'Talaq-e-Ahsan' and by the Ordinance it had been made mandatory that the notice of 'Talaq' should be given in writing to the Chairman of Union Council---'Talaq' would be effected only if efforts of reconciliation would fail---Law prevailing previous to the enforcement of Muslim Family Laws Ordinance, 1961, had made it obligatory for the couples divorced by any mode of 'Talaq' other than 'Talaq-e-Ahsan' not to re-marry each other again, unless wife married another man who died or divorced her after actual consummation and she married her first husband after period of 'Iddat'--­Before re-marriage parties had to prove that bar to their marriage was removed by intermediate marriage, consummation and dissolution, otherwise their marriage was not considered valid---Mode of 'Talaq' effected under provisions of Muslim Family Laws Ordinance, 1961 being almost that of 'Talaq-e-Ahsan', the couples could re-marry without any intervening marriage except where they had been divorced thrice and the third divorce had become effective and in that case they could not re-marry without an intervening marriage---Plain reading of S.7 of Muslim Family Laws Ordinance, 1961 though had implied that all kinds of 'Talaqs' had been made revocable without an intervening marriage and could be that its repugnancy to such extent could validly be agitated on the touchstone of Qur'anic behest and the traditions of Holy Prophet (peace be upon him), but neither vires of said S.7 had been challenged nor matter raised in case pertained to all kinds of 'Talaqs'---Matter, in the present case, pertained, to 'Talaq' obtained by wife through Court decree in shape of Khula'.

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----Ss. 7(6) & 8---Khula'---Meaning and scope---Principle of Khula' in the light of dictates of Holy Qur'an and Sunnah, was to the effect that when married parties disagreed and were apprehensive that they could not observe the bonds prescribed by Divine law, woman could release herself from marital tie by giving up some property in return in consideration of which husband was to give her Khula' and when they had done that, 'Talaqul ­Ba'ayen' would take place---Khula' was a repudiation with consent and at the, instance of wife in which she would agree to give a consideration to husband for her release from marital tie---In case of divorce through Khula' it was not obligatory on wife to re-marry a third person before re-marrying with her first husband---Re-marriage with same husband, of course, would be subject to performance of another Nikah---Provisions of S.7(6) of Muslim Family Laws Ordinance, 1961, however, also allowed such re-union without 'Halala'---No restraint existed, in circumstances, either in Muslim Family Laws Ordinance, 1961 or in Injunctions of Qur'an and Sunnah not to allow prayer of husband for re-union with his wife when she was ready to live again as wife within limits of God.

Muhammad Amin Khattak for Petitioner.

Lal Jan Khattak for Respondents.

Date of hearing: 11th March, 2003.

P L D 2003 Peshawar 173

Before Fazlur Rehman Khan, J

MUHAMMAD ABDULLAH and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No.7 of 2002, decided on 12th June, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 514---Penal Code (XLV of 1860), Ss.420/468/471---Prevention of Corruption Act (II of 1947), S.5(2)---Forfeiture of bail bond ---Procedure---Bail bond in favour of accused was forfeited by the Court for non-appearance of the accused in Court---Procedure for forfeiture of bail bond where bond was for appearance of accused as provided under S.514, Cr.P.C. was that as soon as accused remained absent in violation of bond executed by him or his surety, first step to be taken by the Court was to satisfy itself that accused had violated terms and conditions of bond and if bond was liable to be forfeited Court would pass order for its forfeiture by recording reasons in that respect---Next step to be taken by the Court was to call upon person bound by such bond to pay the penalty thereof or to show cause as to why penalty should not be paid---If instead of making payment, person bound by the bond would offer explanation third step to be taken by the Court would be to make a summary inquiry and record its reasons as to why explanation offered by him should or should not be accepted---Provisions of S.514, Cr.P.C. being mandatory in nature, non-compliance of the same would render order forfeiting bond illegal---One of accused for whom surety had executed bond was incapable to move without help of helper and other accused was a lady of old age of 85 years---Neither absence of accused on fixed date before Court appeared to be intentional nor Court, while forfeiting bond of surety, had adopted mandatory procedure laid down under S.514, Cr.P.C.---Order forfeiting bond passed by Court being not maintainable in law, was set aside, in circumstances.

1984 PCr.LJ 14; NLR 1987 Criminal 382(1); 1993 PCr.LJ 274 and 1993 PCr.LJ 1475 ref.

Abdul Latif Khan Baloch for Petitioners.

Shaukat Hayat Khan, D.A.-G. for the State.

Date of hearing: 12th June, 2003.

P L D 2003 Peshawar 175

Before Mrs. Khalida Rachid and Ijaz-ul-Hassan, JJ

SANAULLAH BABAR---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No.25 of 2003, decided on 23rd April, 2003.

National Accountability Ordinance (XVIII of 1999)--

----Ss.9/10---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Grant of bail on medical ground---Petitioner/accused a retired Superintending Engineer through his Constitutional petition had sought bail on medical ground---Petitioner who was more than 65 years of age, was a diabetic and had recently undergone two operations of hernia both on left and right side---Petitioner was also patient of high blood pressure and hypertension and his both eyes had been operated and lenses had been inserted---Recent E.C.G. of the petitioner-had been adjudged to be not satisfactory---Recovery of petitioner from ailment would surely be slow if he remained in detention---Prescriptions and treatment record of petitioner had suggested that his detention in jail or even his stay in the hospital could result in his collapse any time---Petitioner required immediate treatment, hospitalization and close monitoring by specialist m a well equipped hospital---Bail on medical ground could be granted if Court reached a conclusion on basis of medical report that ailment of the accused was such that it could not be properly treated in jail and some specialized treatment was needed and his continued detention in jail was likely to affect his capacity or was hazardous to his life---Trial of case of petitioner though was in progress and some prosecution witnesses had already been examined, but evidence of remaining prosecution witnesses was yet to be concluded and no likelihood existed that trial would be concluded in near future--­Commencement of trial would not pose an insurmountable obstacle in way of petitioner for grant of bail on medical ground---Petitioner, in circumstances, was found entitled to concession of bail on medical ground.

Dr. Ali Akbar Khan v. Chairman, NAB and others C.A. No.57 of 2003 in C.P.L.A.No.2517 of 2002 and The State v. Dr. Usman Farooqi and 2 others PLD 1998 Kar. 148 ref.

Syed Zafar Abbas Zaidi for Petitioner.

Rashid-ul-Haq, Special Prosecutor for NAB.

Date of hearing: 22nd April, 2003.

P L D 2003 Peshawar 179

Before Dost Muhammad Khan, J

YAR MUHAMMAD KHAN‑‑‑Petitioner

Versus

BASHIR AHMED ‑‑‑Respondent

Civil Revision No.226 of 1999, decided on 16th April, 2003.

(a) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑Ss. 6 & 13‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑‑Suit for pre­emption ‑‑‑Making of Talbs‑‑‑Proof of‑‑‑Courts below while giving findings on issue regarding Talbs, on very minor and ignorable contradictions, had concluded that due to contradictory evidence, plaintiff had failed to prove making of Talb, according to law‑‑‑Court in making appraisal of oral evidence on question of Talbs, by indulging in strict scrutiny to find faults, minor omissions and contradictions, had caused grave prejudice to the pre­emptors ‑‑‑Such approach by Courts below ran counter to sound judicial principles because rules and standards for appraisal of evidence in civil cases were different from those employed in criminal cases as the law has laid down different standards of proof for different categories of cases‑‑­Approach and representation shown by Courts below in declaring and branding witnesses of Talbs as false or untruthful because of Minor contradictions and omissions in their evidence was not a desirable practice and was disapproved‑‑‑First Talb called 'Talb‑e‑Muwathibat' like any other fact was to be established through oral evidence and to prove the same law had not provided for any particular number of witnesses and 'being primarily a question of fact, could be proved through evidence of pre‑emptor alone ii same was cogent‑‑‑Witnesses of Talbs, in the present case when examined were subjected to a very taxing and searching cross‑examination and usually question of no relevance and having no direct nexus with fact in issue, were put to witnesses‑‑‑Such practice was not acceptable at all‑‑‑High Court while exercising revisional jurisdiction though was not required to enter upon re­appraisal of evidence, but in the present case Courts below having acted in disregard of law and well settled principles relating to appraisal of evidence resulting into miscarriage of justice, findings of Courts below were not immune from corrective process of High Court under S.115, C.P.C.‑‑‑high Court accepting revision petition set aside judgments and decrees of Courts below.

Abdul Qayyum v. Mushk‑e‑Alam and another 2001 SCMR 798 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 70 & 71‑‑‑Oral evidence, recording of‑‑‑Judicial wisdom preferred to ignore minor and insignificant discrepancies in statement of witnesses more particularly when they were examined after a long time on the facts to which they were witnesses‑‑‑Such principle was to be more liberally applied in cases where witnesses were illiterate and rustic villagers as one could not reasonably expect of such witnesses to be more accurate on point of time, and date‑‑‑Any contradiction or insignificant discrepancies would not be used as a device to defeat substantive rights‑‑‑Only glaring omissions, contradictions and dishonest improvements introduced in evidence of witness would render the same unreliable.

(c) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 6‑‑‑Right of pre‑emption‑‑‑Such right was no more a piratical right but was a substantive one being so recognized by Islamic Law‑‑‑Pre‑emption right would not be defeated on basis of trivial matters and discrepancies arising out of evidence of witnesses whose evidence was recorded after sufficient long time.

Syed Kamal Shah's case PLD 1986 SC 360 ref.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 132 & 133‑‑‑Cross‑examination‑‑‑Duty of Court towards witnesses and to steer course of cross‑examination on proper lines‑‑‑Court had primary duty to control and regulate process of cross‑examination and to strike a fair balance between the parties before it‑‑‑Only effective control from Court would bring uniformity and consistency in process of cross‑examination‑‑­Courts were required to be vigilant and not to remain oblivious of their duty in controlling the process of cross‑examination‑‑‑Courts were required by law to see that such right was not abused by the party and at the same time not to unreasonably curtail the said right in a manner causing prejudice to other party‑‑‑Court should remain mindful of universal principle that witnesses in system of justice occupied very respectable place because they contribute a lot and render valuable services in giving evidence enabling the Court of law to reach at a just conclusion while deciding a case/lis pending before it‑‑‑Court had solemn duty/obligation to protect witnesses from any type of embarrassment or humiliation at the hands of opposite‑party through the tool of cross‑examination‑‑‑Principles.

Muhammad Shafi v. The State PLD 1967 SC 167; Muddassir v. The State 1996 SCMR 3 and Salagram v. Emperor AIR 1937 All. 171 ref.

(e) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑Ss.6 & 13‑‑‑West Pakistan General Clauses Act (VI of 1956), S.26‑‑‑Suit for pre‑emption ‑‑‑Making of Talb‑e‑Ishhad‑‑‑ Serving of notice‑‑‑Once notice of Talb‑e‑Ishhad was sent through registered post with a proper address of defendant/vendee, then a strong statutory presumption, would arise that service of notice had been effected and same had reached the addressee‑‑­Statutory presumption attached to same would not require evidence of delivery by postman or booking clerk of post office concerned and only duly stamped receipt issued by Post Office Authorities and Acknowledgment card, if any, received back would be sufficient proof that notice was duly served upon the defendant/vendee‑‑‑Taking of evidence of said witnesses in circumstances, was unnecessary formality.

Abdus Sattar Khan for Petitioner.

Muzullah Barkandi for Respondent

Date of hearing: 16th April, 2003.

P L D 2003 Peshawar 186

Before Malik Hamid Saeed and Ijaz-ul-Hassan, JJ

Qazi MUHAMMAD REHMAN---Petitioner

Versus

Malik MUHAMMAD AJBAR KHAN and others---Respondents

Writ Petition No. 148 of 2003, decided on 18th June, 2003.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Bona fide personal need of landlord---Default in payment of rent by the tenant---Burden to prove the bona fides or good faith was on the landlord---If the landlord had succeeded, by leading reliable and sufficient evidence duly substantiated on record, to prove that the shop in question was required by him in good faith, the other facts would become a matter of secondary importance---Landlord had a complete option to choose one out of the several tenements occupied by tenants to avail of his personal requirement and such discretion of landlord was not assailable except in the rarest cases of bad faith---Principles.

Muhammad Shoaib Alain v. Muhammad Iqbal 2000 SCMR 903; Iqbal Book Depot v. Khatib Ahmad and 6 others 2001 SCMR 1197 and Nooruddin and 9 others v. SAGA Printers 1998 SCMR 2119 ref.

Muhammad Aman Khan for Petitioner.

Mazullah Khan Barkandi for Respondents.

Date of hearing: 18th June, 2003.

P L D 2003 Peshawar 189

Before Talaat Qayyum Qureshi, J

Mst. GOHAR SULTAN---Petitioner

Versus

GUL WARIS KHAN---Respondent

Civil Revision No.401 of 2001, decided on 10th June, 2003.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 31(b)---Pre-emption suit---Sale effected through mutation---Limitation starting point---Period of limitation would start from the date of attestation of mutation and not from date, when vendee entered into possession of property.

Nazu Khan v. Karam Hussain Khan through Legal Heirs 2000 SCMR 1053; Tajul Mulk v. Mst. Zaitoon Bibi ad 3 others PLD 1994 SC 356; Mst. Majida Khaum v. District Judge, Vehari 1984 CLC 3270 ad Abdul Akbar v. Fazal Mahmood ad 2 others 1990 MLD 1019 fol.

(b) North-West Frontier Province Pre-emption Act (X of 1987)------

---S. 4---Qaun-e-Shahadat (10 of 1984), Art. 129(g)----Pre-emption suit---- Sale transaction was alleged by vendee-defendant to be gift---Suit was decreed by Trial Court ad upheld by Appellate Court---Validity---Defendant had not produced alleged donor (vendor) to prove that transaction was gift and not sale---Alleged donor was alive ad very much present, but such strong piece of evidence had been withheld by defendant for reasons best known to him---Article 129(g) of Qanun-e-Shahadat, 1984 provided that legal presumption would be that in case alleged donor had been produced, his deposition must have been against defendant---No relationship between alleged donor ad defendant existed, on the basis of which suit property could be gifted to defendant---No-misreading or non-reading of evidence or ay material irregularity or illegality or jurisdictional defect/error was found in impugned judgment/decree warranting interference---High Court dismissed revision petition.

Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235 rel.

(c) North-West Frontier Province Pre-emption Act (X of 1987)—--

----S. 13---Talb-i-Muwathibat---Proof---Minor contradictions with regard to such Talb, specially when statement of witnesses were recorded after long time, would be ignored.

Abdul Qayyum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798 rel.

Haji Muhammad Zahir Shah for Petitioner.

Abdul Sattar Khan for Respondents.

Date of hearing: 27th May, 2003.

P L D 2003 Peshawar 193

Before Mian Shakirullah Jan, C.J. and Shahzad Akbar Khan, J

ABDUL JAMIL and others---Appellants

Versus

ASSISTANT COLLECTOR/COLLECTOR, SWABI DISTRICT and others---Respondents

Regular First Appeal No.22 of 1997, decided on 25th June, 2003.

Land Acquisition Act (I of 1894)---

----Ss.4, 6 & 23(2)---Acquisition of land---Determination of compensation--­Validity---Contentions of the landowners were that the Land Acquisition Collector was not fair in determining the price as the land was situated near the village Abadi and could be used for the purpose of private construction; that in the same "Moza" the owners had purchased land at the higher price in the year 1986 and that the land which was acquired was not for public purpose in its real sense in terms of S.23(2), Land Acquisition Act, 1894--­Landowners failed to produce and prove the mutation of the land purchased by them in 1986 at a higher price---Witnesses though stated that they purchased the suit-land for construction at a higher rate but neither the relevant mutations were proved nor the party to the said transactions were produced and examined in support of their claim---Mere statements of witnesses without any supportive evidence would be inconsequential--­Burden of proof was on the landowners to have proved the bona fide nature of the transaction at higher price through the production of any party to the same---Mere production of the mutation was entirely insufficient for the purpose of the landowners---Where there was no evidence available to the effect that there was any Abadi close to the acquired land having the power ,connection or there was any water scheme or source of water which was essentially required to make the property purposeful for construction, contentions of the landowners that the price of the land was fixed improperly could not be accepted.

PLD 1976 Pesh. 50 ref.

S. Tahar Khan for Appellants.

Malik Ahmad Jan, D.A. -G. for Respondent No.1.

M.Alam Khan for Respondent No.2.

Remaining Respondents: Ex parte.

Date of hearing: 21st May, 2003.

P L D 2003 Peshawar 196

Before Talaat Qayyum Qureshi, J

Sahibzada LIHAZ GUL---Petitioner

Versus

MUHAMMAD ANWAR and others---Respondents

Civil Revision No.339 of 2003, decided on 4th July, 2003.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession through redemption of mortgaged house--­Property in question was mortgaged with the predecessor of the defendants--­None of the parties had raised any objection with regard to the mortgage of suit property, therefore, in absence of any objection from the either side, it stood proved that the suit house was mortgaged with the predecessor of defendants---Plaintiff claimed to have purchased the suit property vide unregistered deed whereas the defendants also claimed to have purchased the suit property through an unregistered sale-deed---Plaintiff had established his case through reliable and convincing evidence, he had examined the vendors who stated that they had sold the property in question to the plaintiff and the sale-deed produced by the defendants was fictitious document---Defendants could not place any document in support of purchase/exchange of the property in question and therefore failed to prove the purchase of the house in question---Lower Courts having failed to appreciate the evidence on record properly, High Court, in revision, decreed the suit of the plaintiff by setting aside the decrees and judgments passed by them.

Iftikhar-ud-Din for Petitioner.

Attaullah Khan Tangi for Respondents.

Date of hearing: 30th June, 2003.

P L D 2003 Peshawar 200

Before Malik Hamid Saeed, J

SHARIFULLAH KHAN and 3 others‑‑‑Petitioners

Versus

ABDULLAH KHAN and 5 others‑‑‑Respondents

Civil Revision No.497 of 1998, decided on 13th June, 2003.

Specific Relief Act (I of 1877)‑‑‑--

‑‑‑S. 42‑‑‑Suit for declaration to the effect that the plaintiff was in possession of agricultural property and a house, as his gifted property and the defendant had no right to deny the ownership and possession of the plaintiff and if the defendant was in possession of any documents regarding the property mentioned in the list with the plaint, then the same were forged and fictitious and ineffective upon the rights of the plaintiff‑‑‑Both the Courts below had concluded that the plaintiff had produced sufficient evidence in support of the execution of the alleged gift deeds whereas the defendant could not produce such type of evidence as the witnesses were not only related to the defendant but the number of witnesses was also insufficient‑‑­Courts below laid much stress on the production of witnesses in support of gift deeds but ignored to assess the evidentiary value in the light of necessary ingredients such as possession of the alleged gifted property‑‑‑Evidence of both the parties rested only on the point of execution of the gift deeds and not on possession‑‑‑Evidence showed that possession had not been delivered to the plaintiff‑‑‑Validity‑‑‑Relationship of witnesses with the defendant was no disqualification and only two witnesses were sufficient for the purpose of a document‑‑‑Number of witnesses produced by the parties, therefore, could not be compared for arriving at a just conclusion, as it was the quality of evidence to be appreciated by the Courts in such‑like cases‑‑‑If the witnesses produced by the defendant were related, the evidence of plaintiff also showed that his witnesses were also related to him, and therefore, two different yardsticks were not required to be applied while appreciating the evidence of both the parties‑‑‑High Court, set aside the impugned judgments and decrees of the Courts below and it was declared that the plaintiff had not proved the execution of the gift deeds in his favour, hence the property of the deceased being joint between the parties would be distributed amongst the legal heirs of the deceased in accordance with "Sharai" shares of the parties.

Mian Saadullah Jandoli and Maazullah Barkandi for Petitioners.

Syed Asif Shah for Respondents.

Date of hearing: 13th June, 2003.

P L D 2003 Peshawar 203

Before Nasir-ul-Mulk and Ijaz-ul-Hassan, JJ

RIZWAN ULLAH---Petitioner

Versus

REGISTRAR/PRESIDENT, COOPERATIVE SOCIETIES, N.-W.F.P., PESHAWAR and 3 others---Respondents

Writ Petition No. 1324 of 2002, decided op 29th April, 2003.

(a) Cooperative Societies Act (VII of 1925)---

----Ss. 64-A & 43---Constitution of Pakistan (1973), Art.199--­Constitutional petition ---Maintainability---Laches---Dissolution/winding up of Provincial Cooperative Bank and appointment of Liquidator by the Registrar/President of the Cooperative Societies of the Province ---Validity--­Record showed that poor financial condition of the Bank necessitated the initiation of an enquiry under S.43, Cooperative Societies Act, 1925 into the constitution, working, financial condition and viability of the Bank--­Enquiry Committee had found the Bank not economically sound to stand on its legs---Poor financial condition of the Bank and its fast depleting resources due to heavy overhead expenditure and other liabilities, had posed a serious threat to the existence of the Bank---Failure of the Bank to recover the loans advanced by it also provided a ground for its liquidation which was mainly for the reason that most of the loans advanced by the Bank were not processed in a transparent and professional manner---Order of liquidation of the Bank thus was based on facts and had full legal sanctity--­Registrar/President, Cooperative Societies of the Province was fully competent to make order regarding liquidation of the Bank on the basis of the Enquiry Report and the material available before him---Provision of S.64-A. Cooperative Societies Act, 1925 having provided a remedy for the person aggrieved of the order of liquidation, Constitutional petition, which otherwise was suffering from laches, was not maintainable against the order of liquidation.

Begum Shamsun Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413; Hamzo Khan v. Government of Sindh and 2 others 1990 CLC 954 and Muhammad Nasim Khan and another v. Government of N.-W.F.P. through Secretary, Department of Cooperative, Peshawar and 24 others 1990 CLC 1693 ref.

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

----Art.199---Constitutional jurisdiction of High Court---Scope---Adequate remedy---Connotation.

The Constitutional jurisdiction is purely discretionary and discretion cannot be exercised as a matter of course but it is to be exercised with great care and caution. The bar under Article 199 is not intended for deciding the disputed facts and thwart the procedural law.

Article 199 of the Constitution confers jurisdiction on the High Court to act on the application-of any aggrieved party and provide adequate remedy, if it was satisfied that no other adequate remedy under the law was available to such an aggrieved party. The words 'adequate remedy' connote an efficacious, convenient, beneficial, effective and speedy remedy. The test of aforesaid meaning of "adequate remedy" primarily rests on the proposition of fact and law raised in each case.

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

----Art. 199---Constitutional jurisdiction of High Court ---Scope---Laches--­Constitutional petition even against a void order, could be dismissed on the ground of laches, but such principle was not applicable in every case as a mandatory rule---Infirmity of laches in the present case had created an obstacle in the way of the petitioner which could not be removed in the absence of justifiable reasons.

Mazullah Barkandi for Petitioner.

Aamir Javed for Respondents.

Date of hearing: 29th April, 2003.

P L D 2003 Peshawar 208

Before Talaat Qayyum Qureshi, J

Haji ABDUL KARIM---Appellant

Versus

ATTA ULLAH KHAN, ADVOCATE, PESHAWAR---Respondent

Regular First Appeal No.40 of 2003, decided on 14th April, 2003.

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

----O.XXXVII, Rr. 1 & 3---Suit for recovery of money on the basis of pronote---Application for leave to defend the suit by the defendant--­Limitation---Contention of the plaintiff was that defendant had been served through his counsel on 16-1-2002 and application for leave to defend the suit was submitted on 29-1-2002 which was barred by time while the defendant had stated that he was served through his counsel on 21-1-2002 hence his application filed on 29-1-2002 was within time---Validity---Record had proved that defendant had been served through his counsel on 16-1-2002, therefore, application filed by him on 29-1-2002 was barred by time--­Contention of the defendant that the Trial Court should have framed preliminary issue as to whether the application for grant of leave to the suit was within time or not and then the case should have been decided, was repelled.

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

----O. XXXVII, Rr.1 to 3---Suit for recovery, of money .on the basis of pronote---Object, scope and application of OXXXVII, Rr.1 to 3, C.P.C.--­Spirit behind the provision of O.XXXVII, C.P.C. was to provide efficacious remedy and to avoid prolongation of the suits---Object of the said provision was to provide mechanism for speedy and summary remedy for recovery of money in respect of suits which were filed on the basis of promissory notes, bills of exchange, cheques and hundies---Principles.

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

----O. XXXVII---Limitation Act (IX of 1908), Art. 159---Suit for recovery of money on the basis of pronote---Application for leave to appear and defend the suit---Limitation---Article 159, Limitation Act, 1908 prescribes 10 days period for filing application for leave to appear and defend the suit commencing from the time when the summons is served---Article 159 of the Limitation Act, 1908 has direct nexus with the provisions of O.XXXVII, C.P.C. and both provisions are inter-dependant and inter-connected---If the defendant fails to appear end obtain leave within 10 days of his service, the Trial Court would be justified to dismiss the application for leave to defend---Application for leave to defend the suit, is the present case, was filed on 16-1-2002 and defendant filed the application to defend the suit on 29-1-2002 and no application for condonation of delay was filed--­Application of defendant, in circumstances, was validly dismissed.

National Bank of Pakistan and others v. Emirates Banff; International Ltd. and others 1993 SCMR 931 and Muhammad Siddique v. Muhammad Ashraf 2000 YLR 2471 ref.

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

----O. XXXVII & O.XVI, R.14---Suit for recovery of money on the basis of pronote---Disputed question of service on the defendant---Bailiff concerned was summoned as witness by the Trial Court on the application of the defendant, to resolve the controversy of the service of the defendant--­Contention of the defendant was that counsel of the plaintiff having been allowed to cross-examine the bailiff after he was cross-examined by defendant's counsel the same had caused prejudice to him---Validity---Trial Court could of its own motion, cause such person to be summoned as witness to give evidence or to produce any document in his possession, on a day to be appointed, and could examine him as a witness or require him to produce such document and parties could also cross-examine the witness summoned by the Court---No prejudice had been caused to the plaintiff if the Court witness was also cross-examined by the defendant in circumstances.

Gopal Lall Seal v. Manick Lall Seal 24 Cal. 288 ref.

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

----O. XXXVII, R.3---Suit for recovery of money on the basis of pronote--­Application for leave to defend the suit---Defendant had not been able to show such facts which could disclose a plausible defence or which may give rise to defend the suit---Vague, general and self-contradictory averments had been made in the application ---Defendant on the one hand had denied having executed the pronote while on the other he had taken up the plea that the said pronote was time-barred and that the signature of the defendant was not visible or evident on the revenue stamps affixed on the pronote---Record also proved that the defence taken by the defendant in the application for grant of leave to defend the suit, was sham, illusory and imaginary---Such application, therefore, did not give rise to triable issues---Trial Court, therefore, had rightly refused leave to the defendant to defend the suit.

Raja Saeed Ahmad Khan v. Sabir Hussain 2000 CLC 199 ref.

Muaazam Butt for Appellant.

Abdul Sattar Khan for Respondent.

Date of hearing: 14th April, 2003.

P L D 2003 Peshawar 217

Before Talaat Qayyum Qureshi, J

FAIZULLAH and others‑‑‑Petitioners

Versus

RUSTAM end others‑‑‑Respondents

Civil Revision No.517 of 2001, decided on 16th June, 2003.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Filing of copies of pleadings, documents and orders of the subordinate Courts with the revision petition‑‑‑Procedure‑‑‑Discretion of High Court to call for the record of the case of the lower Courts in order to determine the same matter had in no way been taken away‑‑‑Provision of S.115(1), proviso had only laid down a strict rule of procedure‑‑‑Petitioner was obliged to tile certified copies of the documents, pleadings and the order of the two Courts‑‑‑Principles.

By proviso to subsection (1) of section 115, C.P.C. the whole burden is placed on the party filing the revision to file copies of pleadings, documents and orders of subordinate Courts with the revision petition, so that the burden which previously lay with the Court of calling for the record of the lower Court, before disposing of the petition was basically dispensed with. Before the insertion of the proviso a duty was cast on the revisional Court to call for the lower Courts record where it considered it necessary for the disposal of the case. The proviso that has been added in 1980, though the official duty has been reversed, the discretion of High Court to call for the record of the case of the lower Courts in order to determine the matter, has, in no way, been taken away. The proviso only lays down a strict rule of procedure, which compels the party to ensure that the copies of all pleadings, documents, orders etc. which are relevant for its case are filed in the first instance, so that the Court dealing with the case has all the material before it. In genuine cases, a party may consider that certain documents are not necessary for determination of the matter in controversy arising in his revision and may not file such documents. In such a case if the Court considers that such documents were not required, it may dispense with the attachment of those documents. However, if the Court, on a fair appraisal of the matter, was to consider otherwise, it could call upon the party to file the remaining documents within a reasonable time before dealing with the case. In cases where visual inspection of certain documents may itself become necessary even though copies of such documents may or may not have been filed by the party, the Court would be compelled to call for the record in order to personally inspect the documents concerned.

Party has to file certified copies of pleadings, documents and orders of the subordinate Courts.

For filing revision petition before the High Court an applicant is under the first proviso to section 115(1), C.P.C. obliged to file certified copies of the documents, pleadings and the orders of the two Courts below.

Riasat Ali v. Muhammad Jaffar Khan and 2 others 1991 SCMR 496 ref.

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

‑‑‑‑S. 115‑‑‑Limitatibn Act (IX of 1908), S.12(2)‑‑‑Revision‑‑‑Limitation‑‑­Requirements‑‑‑Principles‑‑;Time spent fur obtaining certified copies of the documents, pleadings and decisions/orders of the subordinate Court to be attached with the revision, was to be excluded from computing the period of limitation for filing revision petition‑‑‑If a party despite his best efforts fails to get the certified copies and attaches uncertified copies of the documents/pleadings with his revision, even then he had to seek the permission of the Court to allow him to place on record private reproductions of judicial record and to dispense with the supply of certified copies‑‑‑Procedure‑‑‑Party could not be prejudiced or penalised and it should not suffer if the Court failed to provide copy of its decisions within three days as required by proviso second to S.115(1), C.P.C.‑‑‑Provision of S.12(2), Limitation Act, 1908 would be applicable‑‑‑High Court could condone the delay in filing the revision petition or exercise its suo motu jurisdiction in appropriate cases‑‑‑Principles.

Before adding the further proviso to section 115(1), C.P.C. there was no period of limitation fixed for filing civil revision in the High Court. Moreover, there is still no period prescribed in the First Schedule to the Limitation Act, 1908 for filing Civil Revision but it was to be filed diligently within a period of 90 days. By adding the proviso providing the period of 90 days, statutory recognition was accorded.

A minute study of the second proviso to section 115(1), C.P.C. shows that three requirements were introduced namely:‑‑

(i) Application (revision) shall be made within 90 days of the decision of the subordinate Court.

(ii) Subordinate Court shall provide copy of such decision within three days.

(iii) High Court shall dispose of such application within three months.

No doubt a period of 90 days was prescribed for filing application (revision) which period was to start from the date of decision of the subordinate Court, but, it was made mandatory for the subordinate Court by using word "shall" to provide copy of such decision within three days thereof (decision). It has not been specifically mentioned whether copy of such a decision was to be given within three days to aggrieved party or to all the parties because at the time of making of decision, the subordinate Court could not ascertain as to which of the parties was aggrieved, therefore, the analogy would be that copies of the decision were to be supplied to the parties. It is a matter of common knowledge that in most of the civil suits number of parties runs in hundreds. When we look at the load work of the subordinate Courts, it can be safely said that it is not possible for the subordinate Court to provide copy of the decision to each party. The practice of the Civil Courts also shows that none of the parties are given the copies of the decisions by the subordinate Courts. The only way left open to the person desiring to file revision petition is to get certified copies of documents, pleadings and orders of the subordinate Courts. Although in the first proviso attachment of the copies of the statements of the parties has been omitted but the parties are supposed to attach the certified copies of the statements of the parties also. The procedure to obtain certified copies from the subordinate Courts is that a party has to give application to the Copying Agency. The applicant is given a specific date, but it is again a matter of common knowledge that it takes months to obtain certified copies from the Copying Agencies. The question which again arises here is as to whether the time which is requisite for obtaining certified copies of those documents, pleadings and decisions/orders of the subordinate Courts is to be excluded from computing the period of limitation for filing revision petition, answer to this question is in affirmative for the reasons are:

Firstly the applicant has to file certified copies of the pleadings, documents, orders of the subordinate Courts and statements of the parties. Sufficient time is consumed by the Copying Agencies due to heavy work load. If a person (applicant) is not given certified copies by Copying Agencies within a period of 90 days, he cannot be penalised for the lethargic attitude of Copying Agencies.

Secondly; if a party, despite his best efforts, fails to get the certified copies and attaches uncertified copies of the documents/pleadings with his revision petition, even then he has to seek the permission of the Court to allow him to place on record private reproduction of judicial record and to dispense with the supply of certified copies. The Court may or may not agree with the applicant. In case the Court refuses to allow a party to produce private reproduction of judicial record, as substitute for the certified copies, in such a case the party is to be directed to produce the certified copies of the judicial record i.e. the pleadings, documents or orders of the Subordinate Courts and the evidence of the parties but that too is to be done by the party within the prescribed period of 90 days. If the party fails to produce the certified copy within the stipulated period, the Court may decide the case on the record as it stands. If the Court, however, comes to the conclusion that visual inspection of the documents placed on record was necessary, in appropriate cases, the Court could call the subordinate Court to provide copy of its decisions within three days. Now the question that arises here is as to what shall be the consequences if the subordinate Court fails to provide copy of its decision within three days thereof to a party, the answer to this question is that a party cannot be prejudiced and should not suffer due to the act of the Court.

A party cannot be prejudiced or penalised and it should not suffer if the Court fails to provide copy of its decision within three days as required by second proviso to section 115, C.P.C.

Another question that arises here is as to whether the provisions of subsection (2) of section 12 of the Limitation Act, 1908 would be applicable, answer to this question is in affirmative.

The perusal of section 12(2), Limitation Act, 1908 shows that it restricted its application to filing of appeal and two kinds of applications i.e. application for leave to appeal and application for review of judgment only. This subsection nowhere mentions the revision application. The omission of revision application from the subsection appears to be not accidental. There was nothing to prevent the legislation to mention revision application in the above quoted subsection if they so intended. The provisions of subsection (2) of section 12 of the Limitation Act, 1908 was also not intended to apply for 'second appeal" because the words "second appeal" do not find mention in the said subsection. Although while interpreting subsection (2) of section 1 2 of the Limitation Act a strict view was taken by various Courts that while computing period of limitation for filing revision application, time spent in obtaining copy of the impugned judgment/order/decree cannot be excluded, but while dealing with the period of limitation for filing "second appeal", the time spent for obtaining copy of trial Court's judgment was excluded while computing period of limitation.

The High Court could ignore or‑may condone the delay in filing the revision petition or exercise its suo motu jurisdiction in appropriate cases.

No doubt, persons applying for exercise of revisional jurisdiction before the High Court have to submit their applications within a certain time but that is not sacrosanct and the High Court in certain circumstances, may ignore or either may condone the delay or exercise their jurisdiction suo motu.

A civil revision is to be filed within 90 days and in cafe of delay the same is to be explained, though while considering the question of delay in filing of civil revision, the Court would be more liberal as compared to the approach of an application for condonation of delay of the limitation period, provided for in the First Schedule to the Limitation Act for the legal proceedings.

Revision even though filed beyond period of 90 days could, however, be entertained, if Court was satisfied as to the reasons for delay.

Revision petition even though filed beyond the period of 90 days can be entertained, if the Court 'is satisfied as to the reasons for the delay.

Time spent for obtaining copies of the pleadings, documents and orders of the subordinate Courts needs to be excluded for computing period of limitation for filing revision petition.

Fida Hussain v. The State PLD 2002 SC 46; Sajawal Khan v. Wali Muhammad and others 2002 SCMR.134; Muhammad Mansha's case 1999 SCMR 1782; Mst. Maryam Haji and others v. Mrs. Yasmin R. Minhas and others PLD 2003 Kar. 148; Muhammad Bashir v. Mst. Nasrin Akhtar PLD 2003 Lah. 260; Shafaqat Iqbal v. Ghulam Rasool PLD 2001 Lah. 139; Muhammad Hussain v. Muhammad Afsar 2001 YLR 3280; Islamic Republic of Pakistan v. Conforce Ltd. 2001 CLC 1741; Sarah Malik v. Federation of Pakistan 2001 MLD 1026; Namdar Khan v. Muhammad Akram Khan and 14 others 1993 SCMR 434; Muhammad Afzal Khan Lodhi v. Islamic Republic of Pakistan PLD 1968 Lah. 1205; West Pakistan Province through the Collector, Muzaffargarh v. Sh. Nazir Ahmad PLD 1973 Lah. 403; Kala v. Allah Dad. PLD 1977 Lah. 376; Pir Muhammad and others v. Lai Din PLD 1964 Lah. (W. P.) 461; Amir Hussain Shah v. Umara and 11 others 1986 SCMR 800; Muhammad Yousaf and 3 others v. Khan Bahader through Legal Heirs 1992 SCMR 2334; Government of N.‑W.F.P. through Chief Secretary and 3 others v. Abdul Malik 1994 SCMR 833; PLD 1976 SC 678; Muhammad Mian v. Syed Shamimullah and 2 others 1995 SCMR 69 and Riasat Ali v. Muhammad Jaffar Khan 1991 SCMR 496 ref.

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

‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), Ss.5(1)(2) & 29‑‑‑Revision‑‑­Provisions of Ss.5(1)(2) & 29, Limitation Act, 1908 are not applicable to revision‑‑‑Principles.

Provisions of sections 5 and 29(1)(2) of the Limitation Act, 1908 are not applicable to revision, firstly because neither any special nor any local law has prescribed period of limitation for filing application (revision) different from the period prescribed in the First Schedule to the Limitation Act. Secondly, the Civil Procedure Code, 1908 is a general law which regulates the procedure of the Civil Courts.

The provisions of the Civil Procedure Code, 1908 are subject to the provisions of the Limitation Act, 1908. Both Acts are general Acts and are in pari materia the two Acts therefore, must be read together and must be treated as complimentary of each other.

If the Statute governing the proceedings does not prescribe period of limitation, the proceedings instituted thereunder shall be controlled by the Limitation Act as a whole. But where the law under which proceedings have been launched prescribes itself a period of limitation like under section 115, C.P.C. then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act.

Section 115, C.P.C. also provides that High Court can suo motu exercise its revisional jurisdiction at any time without being bound by any period of limitation provided it fosters the cause of justice and dictates of justice so demanded and not in every case. High Court in its supervisory jurisdiction of superintendence and control could oversee and correct all jurisdictional errors or errors which had materially affected the proceedings of the subordinate Court in which appeal did not lie to it.

The revisional powers of the High Court cannot be limited or abridged by the act of the patties. It can in supervisory jurisdiction of superintendence and control, oversee and correct all jurisdictional errors or errors which have materially affected the proceedings of subordinate Courts in which appeal does not lie to it.

The exercise of revisional jurisdiction by the High Court is a matter exclusively between the High Court and the subordinate Courts, albeit the parties to the litigation have a right to bring to their notice the jurisdictional/legal errors as envisaged in section 115 of the C.P.C. itself. No period of limitation is, consequently, prescribed therefor under the law.

A High Court can exercise revisional jurisdiction suo motu at any time without being bound by any period of limitation provided it fosters the cause of justice and the dictates of justice so demanded and not in every case.

The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as, firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and secondly, the Court "may make such order in the case as it thinks fit".

Koer Durag Pal Singh v. The Pancham Singh and others AIR 1939 All. 403; Allah Dino and others v. Muhammad Shah and others 2001 SCMR 286; Riaz Hussain and others v. Muhammad Akbar and others 2003 SCMR 181; Muhammad Bashir and others v. Province of Punjab through Collector, District Gujrat and others 2003 SCMR 83; Mst. Syeda Tahira Begum v. Said Akram Ali and another 2003 SCMR 318; Mgt. Arshan Bi through Mgt. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Saidoor and others 2003 SCMR 318; Muhammad Aslam and another v. Munshi Muhammad Behram and another 1991 SCMR 1971; Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs 1992 SCMR 2334; Government of N.‑W.F.P. through Chief Secretary and 3 others v. Abdul Malik 1994 SCMR 833; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Shafaqat Iqbal and others v. Ghulam Rasool and another PLD 2001 Lath 139; Izzat Khan v. Mst. Inshallah Begum PLD 2001 Kar,. 396; The Secretary, Auqaf Department, Government of Sindh, Karachi‑South and 3 others v. Syed Sher Ali Shah and 9 others PLD 1999 Kar. 417 and Morio Goth Welfare Association v. Muhammad Bachal and 6 others 1985 CLC 1680 ref.

(d) Administration of justice‑‑--

‑‑‑‑ Mere technicalities, unless offering from any insurmountable hurdle should not be allowed to defeat the ends of justice‑‑‑Principles.

Mere technicalities, unless offering any insurmountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities. The objection behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history. It cannot be denied, that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment, and mala fides.

Riaz Hussain and others v. Muhammad Akbar and others 2003 SCMR 181; Muhammad Bashir and others v. Province of Punjab through Collector, District Gujrat and others 2003 SCMR 83; Mgt. Syeda Tahira Begum v. Said Akram Ali and another 2003 SCMR 318 and Mgt. Arshan Bi through Mgt. Fatima Bi and others v. Maula Bakhsh through Mgt. Ghulam Saidoor and others 2003 SCMR 318 ref.

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

‑----O. XLI, R.31 & S.115‑‑‑Contents of judgment‑‑‑Order of the Appellate Court in the present case was not only perfunctory but was also non‑speaking order manifesting by itself that the Court had not applied its mind to the resolution of the issues involved for the proper adjudication‑‑‑Appellate Court, therefore, failed to properly exercise jurisdiction vested in it‑‑‑High Court set aside the order of the Appellate Court and remitted the case back to it for deciding the appeal afresh on merits in accordance with law with further directions that the needful be done within a period of 2 months and no unnecessary adjournment be given to the either side.

Gouranga Mohan Sikandar v. The Controller of Import and Export and 2 others PLD 1970 SC 158 ref.

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

‑‑‑‑Art. 189‑‑‑Observations of Supreme Court are binding on all other Courts in Pakistan.

Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 and Abdul Qadir v. The Presiding Officer, Punjab Labour Court No.3, Lyallpur and 2 others PLD 1975 Lah. 44 ref.

Ghafoor Ahmed Qureshi for Plaintiffs.

Alamzeb Khan for Defendants.

Date of hearing: 12th May, 2003.

P L D 2003 Peshawar 235

Before Mian Shakirullah Jan, C. J. and Shahzad Akbar Khan, J

WAZIRDULLAH and 9 others‑‑‑Appellants

Versus

LAND ACQUISITION COLLECTOR, A.C. SWABI‑‑‑Respondent

Regular First Appeal No.23 of 199‑7, decided on 25th June, 2003.

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

‑‑‑‑Ss. 23 & 54‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 74 & 76‑‑‑Claim for enhancement of compensation determined by Trial Court on ground of sale of adjacent lands at higher price‑‑Validity‑‑‑Appellant had received compensation amount‑‑‑Disputed land was "Barani" and situated at a distance of one furlong from the main road‑‑‑Burden of proof regarding bona fide sale of adjacent lands was on the appellant‑‑‑Mere production of copies of mutations of such sale in evidence would be entirely insufficient‑‑‑Duty of appellant was to examine some party to such sale transactions‑‑‑ No party to such sale transactions had been produced‑‑‑Photo copies of such sale mutations placed on record being secondary evidence could not be taken into consideration, unless permission was obtained from the court in accordance with Qanun‑e‑Shahadat, 1984‑‑‑High Court dismissed the appeal.

Land Acquisition Collector‑II, Tarbela Dam Re‑Settlement Organisation, WAPDA and 2 others v. Haji Hakim Khan and 41 others PLD 1976 Pesh. 50 fol.

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

‑‑‑‑Arts. 74 & 76‑‑‑Photostat copies of mutations placed on record‑‑­Evidentiary value‑‑‑Such copies being secondary evidence court not be taken into consideration, unless permission of Court was obtained in accordance with Qanun‑e‑Shahadat, 1984.

Muzamil Khan for Appellant.

Malik Ahmad Jan, D.A.‑G. for Respondent No. 1.

M. Alam Khan and Ghulam Ali for Respondent No.2.

Date of hearing: 21st May, 2003.

P L D 2003 Peshawar 238

Before Mian Shakirullah Jan, C. J. and Shahzad Akbar Khan, J

GUL NAMIR and others‑‑‑Appellants

Versus

LAND ACQUISITION COLLECTOR. A.C. SWABI‑‑‑Respondent

Regular First Appeal No .29 of 1997, decided on 25th June, 2003.

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 23 & 54‑‑‑Claim for enhancement of compensation on ground of improvement in suit‑land‑‑‑Validity‑‑‑Revenue Record did not support appellant's claim that installation of diesel pump in land was prior to issuance of notification under S.4 of Land Acquisition Act, 1894‑‑­Installation of diesel pump after issuance of such notification would not entitle appellant to any improvement‑‑‑Appellant as P.W. had admitted that land was situated at a distance of two furlongs from "Pakka" road‑‑‑Patwari Halqa had stated that the land was of "Maira" type situated outside main village‑‑‑Record did not show that appellant had made any application for appointment of Local Commissioner to assess the market value of land‑‑­Price of land fixed by Collector and upheld by Trial Court was not arbitrary,‑‑‑High Court dismissed the appeal.

Muzamil Khan for Appellant.

Malik Ahmad Jan, D.A.‑G. for Respondent No.1.

M. Alam Khan and Ghulam Ali for Respondent No.2.

Date of hearing: 21st May, 2003.

P L D 2003 Peshawar 241

Before Qazi Ehsanullah Qureshi, J

NATIONAL BANK OF PAKISTAN, HARIPUR‑‑‑Petitioner

Versus

MUHAMMAD RIAZ KHAN and 3 others‑‑‑Respondents

Civil Revision No. 169 of 2000, decided on 11th September, 2003.

Civil Procedure Code (V of 1908)‑--

‑‑‑‑O. XXIV, R. 1‑‑‑Deposit by defendant of amount in satisfaction of claim‑‑‑While dealing with the money of claimants, litigants/public, where minors, widows and aged needy persons were involved, Court should bear in mind that such amount shall be deposited in the profitable scheme so that when drawing the said amount the party should be able to fetch the income of his capital amount which was already stuck up for considerable period.

In the present case, the Additional District and Sessions Judge instead of depositing the acquisition amount of landowner in the current account should have deposited the same in the profitable scheme which was a proper exercise. By depositing the disputed amount in the Bank in the Current Account the. Court had dealt with the matter off‑handedly and in that had damaged the interest of landowner. The Courts are duty bound to take care and safeguard the interest of the litigant to a legal and justifiable manner specially in money matters. Depositing the disputed amount to Current Account the Court made landowner to suffer heavy financial loss and deprived him of interest/profit which he was otherwise entitled to but due to act of the Court the Bank cannot be made to suffer on no fault on its part, because of the negligence of the Courts. As such it will not be out of place to direct the subordinate Courts that while dealing with the money of litigant/public where almost all minors, widows and aged needy persons are involved, they should bear in mind that the such amount shall be deposited in the profitable scheme so that when drawing the said amount the party should be able to fetch the income of his capital amount which is already stuck up for considerable period.

Malik Khalid Mehmood for Petitioner.

Muhammad Ismail Tanoli for Respondents.

Date of hearing: 8th September, 2003.

P L D 2003 Quetta 1

Before Raja Fayyaz Ahmed, CJ., Akhtar Zaman Malghani and Muhammad Nadir

Khan, JJ

GHULAM AKBAR LASI and others‑‑‑Petitioners

Versus

RETURNING OFFICER FOR NA‑270, AWARAN‑CUM‑LASBELLA AT UTHAL

and another‑‑‑Respondents

Constitutional Petitions Nos. 478, 479 and 480 of 2002, decided on 19th September, 2002.

(a) Words and phrases‑‑‑

....."Suspended sentence" ‑‑‑Meaning.

Black's Law Dictionary ref.

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

‑‑‑‑Ss. 15, proviso & 25 [as substituted by National Accountability Bureau Ordinance (XXXV of 2001)]‑‑‑Disqualification to contest election‑‑­Voluntary return/plea bargaining‑‑‑Effect‑‑‑Person availing benefit of S.25 of the National Accountability Bureau Ordinance, 1999 would be deemed to have been convicted under the National Accountability Bureau Ordinance, 1999 and would stand disqualified for. a period of 10 years for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or Local Authority.

(c) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑S. 99(1‑A)(i)‑‑‑Conduct of General Elections Order (7 of 2002), Art. 8‑D(2)q‑‑‑Constitution of ‑ Pakistan (1973), Art.63(p)‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), Ss. 15, proviso & 25 [as substituted by National Accountability Bureau Ordinance (XXXV of 2001)]‑‑‑Disqualification to contest election‑‑‑Voluntary return/plea bargaining‑‑‑Non‑deposit of amount with National Accountability Bureau by the accused/candidate himself‑‑‑Candidate was declared disqualified by the Returning Officer for the reason that he had been released by .the National Accountability Bureau after gaining benefit of the plea bargaining as provided under S.25 of National Accountability Bureau Ordinance, 1999‑‑­Plea raised by the candidate was that he did not enter into the plea of bargaining himself and amount was not tendered/deposited by him personally, therefore, he could not be disqualified under S.15 of National Accountability Bureau Ordinance, 1999, to contest the general elections‑‑­Validity‑‑‑As the candidate was arrested under specific charges and 'then released by taking benefit of an enabling provision, then the candidate could not say that he was not beneficiary of S.25 of National Accountability Bureau Ordinance, 1999‑‑‑When the candidate was under custody, it was natural that the amount would be deposited by any other person on his behalf and he could not deposit the amount himself‑‑‑If the candidate was not the beneficiary of the plea bargaining, he could have challenged the same before any Court of law or at least by making an application to !he Chairman of National Accountability Bureau denying the plea bargaining‑‑‑Candidate, in the present case, kept silent till the rejection of his nomination papers which showed his active acquiescence by conduct in the plea bargaining‑‑‑Person could not be allowed to approbate and reprobate in the same breath‑‑‑Person who had been disqualified from being elected under any law for the time being in force, would be disqualified from contesting the elections‑‑‑As the candidate was disqualified by virtue of proviso to S.15 read with S.25 of National Accountability Bureau Ordinance, 1999, therefore, his nomination papers were rightly rejected by the Returning Officer‑‑‑Decision of Election Tribunal having no jurisdictional defect, appeals filed by the candidates were competently dismissed‑‑‑Constitutional petition was dismissed in circumstances.

Ghulam Mustafa Jatoi's case 1994 SCMR 1299; PLD 1989 SC 396; 1996 CLC 1772; PLD 1997 Quetta 115; PLD 1999 Quetta 1; PLD 1993 SC 399 and 1990 SCMR 1309 ref.

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

‑‑‑‑S. 15‑‑‑Term 'corrupt practice' occurring in National Accountability Bureau Ordinance, 1999‑‑‑Connotation and applicability‑‑Disqualification to contest general elections‑‑‑Plea raised by the candidate was that beneficiary of the disputed contract for construction was his brother and he could not be held responsible for the deeds of his brother‑‑‑Validity‑‑‑Term 'corrupt practice' was used in National Accountability Bureau Ordinance, 1999, in a wider term which not only included pecuniary advantage gained by spouse or dependants but also by any other person‑‑‑Candidate was arrested under the charge and he accepted the charge by entering into plea bargaining, as such the plea raised by the candidate was not available to him in circumstances.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Factual controversy cannot be looked into Constitutional jurisdiction of High Court.

Muhammad Aslam Chishti, Senior Advocate and Hadi Shakeel Ahmed for Petitioners.

Rakhshani, Deputy Prosecutor‑General NAB (on Court's Notice), I.N. Kohli, Deputy Attorney‑General and Ghulam Mustafa Mengal, Asstt. A.‑G. for Respondents.

Date of hearing: 16th September, 2002.

P L D 2003 Quetta 11

Before Fazal‑ur‑Rehman, J

AMANULLAH, and others‑‑‑Convict/Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1 of 2002, and Criminal Jail Appeals (A.T.A.) Nos.6 and 12 of 2002, decided on 2nd August, 2002.

(a) Jurisdiction‑

‑‑‑‑Question of jurisdiction being a question of law can always be raised by any party at any stage including the appeal‑‑‑Court itself is required before proceeding with the case to .examine whether it has jurisdiction in law to proceed or not‑‑‑Merely because a party to the proceedings had not taken any objection to the jurisdiction out of ignorance or for ,want of proper advice shall neither debar a party from taking such objection at the appellate stage, nor the silence of a party or even waiver shall confer jurisdiction on a Court, not vested in it in law‑‑‑Question of jurisdiction goes to the very root of the case and renders the entire proceedings coram non judice thereby vitiating the entire proceedings and making the judgment illegal and void‑‑‑Matter ordinarily has to be dealt with in general jurisdiction unless it falls squarely within special jurisdiction.

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

‑‑‑‑Ss. 7(b) & 6‑‑‑Penal Code (XLV of 1860), S.392‑‑‑Jurisdiction of Special Court‑‑‑Validity‑‑‑Case against accused related to snatching of motorbike which offence, prima facie, was punishable under the provisions of Offences Against Property (Enforcement of Hudood) Ordinance, 1979‑‑‑Mere asking the complainant to leave his motorcycle and run away could hardly create any sense of fear and insecurity in the public‑‑‑Vague allegation about show of fire‑arms had been levelled by the complainant in the report‑‑‑Prosecution had attributed a single fire to one of the accused while the complainant was running away who had even not offered any resistance to compel the accused to open tire‑‑‑No crime empty was recovered from the place of occurrence‑‑­Manner in which the incident had allegedly taken place, confessional statement of one accused, selling of liquor by the complainant at the place of occurrence, finding of stolen property by the Excise Constable and other circumstances of the case, did not bring the case within the purview of S.6 or the Schedule of the Anti‑Terrorism Act, 1997‑‑‑Offence committed by the accused had no nexus with the object of the said Act‑‑‑Special Court, therefore, could not take cognizance of the case‑‑‑Cases of vehicle snatching and criminal trespass (illegal Qabza) after the promulgation of Anti­-Terrorism (Amendment) Ordinance (XXXIX of 2001) were not covered by Anti‑Terrorism Act, 1997, and the same were not triable by Anti‑Terrorism Court‑‑ ‑Impugned judgment passed by Special Court was consequently set aside and the case was sent to Sessions Court for adjudication in accordance with law.

PLD 2001 SC 521; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; PLD 2002 Kar. 311; PLD 2002 Kar. 152; Niaz Ali v. State PLD 1961 (W.P.) Lah. 269 and Criminal Appeal No. 17 of 2002 ref.

H. Shakeel Ahmed for Appellants.

Raja Amir for the State.

Date of hearing: 26th July, 2002.

P L D 2003 Quetta 18

Before Raja Fayyaz Ahmed, C. J. and Akhtar Zaman Malghani, J

Khan HABBASH BARAKZAI ‑‑‑ Petitioner

Versus

FEDERAL GOVERNMENT DEGREE COLLEGE, QUETTA and

another‑‑‑Respondents

Constitutional Petition No.423 of 2002, decided on 16th September, 2002.

(a) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Aggrieved person‑‑Educational institution‑ ‑Grievance of the petitioner was that he secured 412 marks and was refused admission in the college, whereas the last student who was admitted in the college secured 532 marks‑‑‑Effect‑‑‑Petitioner having secured marks muchless than the last student who was admitted in the college, he was not an aggrieved person within the meaning of Art. 199 of the Constitution.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Admission in General Science Group (ICS Group)‑‑‑Petitioner secured 412 marks whereas the last student who was given admission in the college in General Science Group (ICS Group) secured 532 marks‑‑‑Contention of the petitioner was that the last student who was granted admission in the college in Humanities Group secured 382 marks, therefore, the College Authorities had wrongly refused admission to him‑‑‑Validity‑‑‑Admission in college had been granted to students strictly in accordance with Admission Policy‑‑‑Contention of the petitioner was without any force as the petitioner had applied for admission in General Science Group (ICS Group) and the marks of the last student coming on merits were 532 whereas the student referred by the petitioner was from the Humanities Group‑‑‑Admission sought by the petitioner was on open merit while the student referred by the petitioner was granted admission on reserved seat‑‑‑High Court could not compel the College Authorities to increase seats in order to accommodate certain students‑‑‑College had its own policy and it was for College Authorities to fix number of students to be admitted in the light of accommodation and other facilities available in the college‑‑‑High Court declined to interfere with the decision of the College Authorities‑‑‑Petition was dismissed in circumstances.

(c) Educational institution‑

--‑Admission on reserved quota for children of Armed Forces—Candidate raised the plea that his brother and uncle were Army Personnel, therefore, he was eligible for the admission on the reserved quota‑‑‑Validity‑‑‑Quota had been reserved for children of Armed Forces Personnel in which category the candidate did not fall‑‑‑Candidate, in circumstances, could not claim to be admitted on the seats reserved for such category being relative of Army Personnel.

Muhammad Nawaz Khan Barakazi for Petitioner.

K.N. Kohli, Dy. A‑G, alogn-with Iqbal Parwaz, Principal, F.G. College, Quetta Cantt. for Respondents.

Date of hearing: 11th September, 2002.

P L D 2003 Quetta 22

Before Raja Fayyaz Ahmed, C J

Haji BOSTAN ALI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 134 of 2002, decided on 17th July, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Emigration Ordinance (XVIII of 1979), Ss.17, 18 & 22‑‑‑Penal Code (XLV of 1860), Ss.420/109/34‑‑‑Bail‑‑‑Accused had allegedly received Rs.5,00,000 from two persons on the pretext of sending them abroad and providing them employment there‑‑‑Both the said persons were sent to different countries by the accused who eventually were left stranded in Indonesia at the mercy of circumstances and ultimately were arrested and they had to undergo a lot of sufferings of different types‑‑‑Sufficient material in the form of passports of the said persons and the statements of witnesses was available, on record to involve the accused in the commission of non­-bailable offences which had disentitled him to claim bail as a matter of right‑‑‑Bail was refused to accused in circumstances.

Shakeel Hassan Rashidi v. The State 1992 MLD 99; 2001 PCr.LJ 588; PLD 1982 Kar. 1011 and 1986 PCr.LJ 567 ref.

Syed Ayyaz Zahoor for Applicant.

K.N. Kohli, Dy. A.‑G. for the State.

Date of hearing: 9th July, 2002.

P L D 2003 Quetta 27

Before Raja Fayyaz Ahmed, C J

MUHAMMAD ASLAM SHAH‑‑‑Appellant

Versus

FIDA MUHAMMAD and another‑‑‑Respondents

First Appeal from Order No. 135 of 2000, decided on 17th July, 2002.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(2)(i)‑‑‑Ejectment of tenant‑‑‑Bona fide personal need of landlord‑‑­Frequent visits of landlord to a city in other province to attend his ailing--­wife‑‑‑Effect‑‑‑Rent. Controller passed eviction order against the tenant­--Tenant resisted the bona fide personal need of landlord on the ground that the landlord had disposed of his other properties in the city and shifted his residence to another city in a different province‑‑‑Validity‑‑‑Held, landlord himself was always the best judge to manage and tackle his own affairs as he deemed fit and proper‑‑‑In absence of any evidence to the contrary, such fact slid not all for taking a view that the landlord had permanently shifted to the other city‑‑‑Contention of the tenant with regard to bona fide personal need of landlord was ill‑founded and mala fide‑‑‑Visits of landlord to other city to attend his sick wife and frequent visits of the landlord after disposal of other properties alone would not be sufficient to conclude that he did not require the shop in dispute for his business needs and in good faith‑‑‑Primarily such acts are related to the private and internal affairs of landlord and dealings of such person which from case to case vary and depending on one's own needs and benefits‑‑‑Landlord had successfully discharged the onus of bona fide personal need and the Rent Controller on proper appraisal of evidence resolved the issue in favour of the landlord‑‑‑High Court declined to interfere with the eviction order passed by the Rent Controller‑‑‑Appeal was dismissed in circumstances.

(b) West Pakistan Urban Rent‑Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Ejectment of tenant‑‑‑Striking off defence‑‑‑Failure to produce evidence‑‑‑Effect‑‑‑Many adjournments well sought by the tenant to produce his evidence but neither he produced any evidence nor appeared himself before 'the Rent Controller nor offered any excuse for such failure‑‑‑After affording many opportunities Rent Controller struck off the defence of the tenant---Contention of the tenant was that fair and reasonable opportunity was not afforded to him for production of evidence—Validity---Many opportunities given for the purpose of producing his evidence to the tenant within a period of less than thirty days in ordinary course amounted to providing fair and reasonable opportunity for production of evidence—Contention of the tenant was found devoid of any force in circumstances.

Basharatullah and Adnan Basharat for Appellant.

Walayat Hussain for Respondents.

Date of hearing: 8th May, 2002.

P L D 2003 Quetta 35

Before Raja Fayyaz Ahmed, C.J., Akhtar Zaman Malghani, and Muhammad Nadir Khan, JJ

Nawabzada Mir BALACH KHAN MARRI through Attorney‑‑‑Petitioner

Versus

APPELLATE ELECTION TRIBUNAL, BALOCHISTAN through Registrar, Balochistan High Court and 2 others‑‑‑Respondents

Constitutional Petition No.484 of 2002, decided on 23rd September, 2002.

(a) Conduct of General Elections Order (7 of 2002)‑‑‑

‑‑‑‑Arts. 3, 8‑A & 10(3)‑‑‑Representation of the People Act (LXXXV of 1976), S.14(5)‑‑‑Constitution of Pakistan (1973), Arts.63(l)(i) [as amended by Art. 3 of Legal Framework Order, 20021 & 199‑‑‑Constitutional petition‑‑‑Election dispute‑‑ Disqualification‑‑‑Nomination papers of the candidate were accepted by the Returning Officer but the Election Tribunal allowed the appeal and the nomination papers were rejected for want of qualification as required by Art.8‑A of Conduct of General Elections Order, 2002‑‑‑Plea raised by the candidate was that amendments were made in the Constitution by virtue of Art. 3 of Legal Framework Order, 2002, and the general elections being held under the provisions of Conduct of General Elections Order, 2002, the candidate was disqualified in view of Art.63(1)(i) [as amended] of the Constitution‑‑‑Validity‑‑‑Requisite notification in the official Gazette for revival of the Constitution or and amended provisions of the Constitution relating to the disqualification of a candidate to contest election was not issued under Art.4 of Legal Framework Order, 2002‑‑­Without notification. the amendment introduced in Art.63(1)(i) of the Constitution did not come into play‑‑‑Election Tribunal had wrongly allowed the appeal against the candidate by applying the provisions of Art.3 of Legal Framework Order, 2002‑‑‑Order passed by the Election Tribunal was of no legal effect and the same was set aside‑‑‑Nomination papers of the candidate were accepted and High Court directed the Election Commission to enable him to contest the election‑‑‑Constitutional petition was allowed in circumstances.

(b) Conduct of General Elections Order (7 of 2002)‑‑‑

‑‑‑‑Arts. 3 & 10(3)‑‑‑Representation of the People Act (LXXXV of 1976) S.14(5)‑‑‑General election‑‑‑Disqualification‑‑‑In view of the provisions of Arts.3 & 10(3) of Conduct of General Elections Order, 2002, the Order has overriding effect over the other laws‑‑ ‑Candidate whose case does not fall within the mischief of any of the disqualification clauses of the Conduct of General Elections Order, 2002, cannot be disqualified on the strength of any other law which contains a clause inconsistent with it.

(c) Conduct of General Elections Order (7 of 2002)‑‑‑

‑‑‑‑Art. 8‑D(2)(i)‑‑‑General election‑‑‑Disqualification of candidate‑‑­Dismissal from service‑‑‑No charge of moral turpitude‑‑‑Effect‑‑‑Candidate was dismissed form service on the ground of wilful absence and the dismissal did not involve the element of moral turpitude for disqualifying him under Art.8‑D(2)(i) of Conduct of General Elections Order, 2002, as it was .necessary that the dismissal must involve the ingredients of moral turpitude‑‑‑Candidate was not disqualified to contest the election merely because he was dismissed from service on the ground of misconduct resting upon absence from duty.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 95‑‑‑Constitutional petition‑‑ Maintainability‑‑Filing of petition through attorney‑‑‑Petitioner was abroad and the petition was filed through his attorney on the basis of power of attorney duly attested and verified by the High Commissioner of Pakistan as provided under the Power of Attorneys Act, 1882, read with Art.95 of Qanun‑e‑Shahadat, 1984‑‑‑Validity‑‑‑Constitutional petition was maintainable in circumstances.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Conduct of General Elections Order (7 of 2002), Art.8‑D(2)(k) ‑‑‑Constitutional petition‑‑‑Raising of new plea‑‑‑Election dispute‑‑‑Plea raised by the respondent was that the candidate was also disqualified under Art.8‑D(2)(k) of Conduct of General Elections Order; 2002‑‑‑Validity‑‑‑As the plea was not raised by the respondent in the forums below, High Court did not consider the same.

PLD 2002 SC 994 ref.

M.S. Aslam Chishti and Saeed Ahmed Khan for Petitioner.

M. Ashraf Khan Tanoli and Muhammad Qahir Shah with K.N. Kholi, Dy. A.‑G. and Ghulam Mustafa Mengal, Asstt. A.‑G. for Respondents.

Date of hearing: 18th September, 2002.

P L D 2003 Quetta 42

Before Raja Fayyaz Ahmed, C.J., Akhtar Zaman Malghani and Muhammad Nadir

Khan, JJ

Nawabzada Mir BALACH KHAN MARRI through Attorney‑‑‑Petitioner

Versus

Mir MOHABAT KHAN MARRI and 4 others‑‑‑Respondents

Constitutional Petition No.492 of 2002, decided on 25th September, 2002.

(a) Words and phrases‑‑

‑‑‑‑"Summarily"‑‑‑Meaning.

Black's Law Dictionary, 5th Edn. and Legal Thesaurus by William C. Burton ref.

(b) Words and phrases‑‑

‑‑‑‑‑‑ Summary proceedings" ‑‑‑Meaning.

Black's Law Dictionary, 5th Edn. ref.

(c) Representation of the People Act (LXXXV of 1976)‑‑

‑‑‑‑S. 14(5)‑‑‑Scrutiny of nomination papers‑‑‑Genuineness of Bachelor's degree‑‑‑Elaborate inquiry‑‑‑Where genuineness of the degree had become doubtful, it was not possible for the Election Tribunal to reach to a definite conclusion without holding an elaborate inquiry and providing opportunity to the parties to prove their respective contentions through evidence‑‑‑Elaborate inquiry was not permissible under S.14(5) of Representation of the People Act, 1973, as scrutiny proceedings were of a summary nature.

(d) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑S. 14(5‑A)‑‑‑Scrutiny of nomination papers‑‑‑Non‑exercise of suo motu powers by Election Tribunal‑‑‑Disqualification‑‑‑Onus to prove ‑‑‑Scope‑‑­Against acceptance of nomination papers of the candidate suo motu powers were not exercised by the Election Tribunal within the purview of S.14(5‑A) of Representation of the People Act, 1976, and the grievance was brought in the shape of appeal before Election Tribunal‑‑‑Burden, therefore, heavily lay upon the person raising objection to prove to the satisfaction of the Election Tribunal that any such objection was filed or forwarded to the Returning Officer‑‑‑Tribunal, in circumstance, could not be said to have failed to exercise jurisdiction in not deciding the objections.

(e) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑S. 14(5)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Disputed question of fact‑‑‑Maintainability of petition‑‑‑Election dispute‑‑‑Objection was made to the genuineness of Bachelor's degree produced by the candidate‑‑‑Both the parties tiled official letters issued by the University Authorities in their favour‑‑‑Returning Officer accepted the nomination papers and the order was maintained by the Election Tribunal resulting in dismissal of appeal‑‑‑Validity‑‑‑Constitutional jurisdiction could not be appropriately invoked for making probe into controversial facts based upon two conflicting documents and the equitable relief sought for resulting into defrenchising the candidate could not be allowed to be availed‑‑‑When order passed by the Election Tribunal did not suffer from lack of jurisdiction legal impropriety, or being coram non judice etc. High Court declined to interfere with the same‑‑‑Constitutional petition was' dismissed in circumstances.

PLD 1974 SC 139; 1974 SCMR 530; PLD 1987 SC 447; PLD 1993 Lah. 595; PLD 1968 Lah. 403 and PLD 1978 Quetta 17 distinguished.

Ghulam Mustafa Jatoi's case 1994 SCMR 1299 ref.

Muhammad Aslam Chishti for Petitioner.

Muhammad Ashraf Khan Tanoli and Muhammad Qahir Shah for Respondents.

K.N. Kohli, Dy. A.‑G. (on Court's Notice).

Ghulam Mustafa Mengal, Asstt. A.‑G. for Respondent No.2.

Date of hearing: 24th September, 2002.

P L D 2003 Quetta 53

Before Muhammad Nadir Khan, J

Mst. RAJ BIBI---Petitioner

Versus

Mst. SHAHZADI and 4 others---Respondents

Civil Revision No.36 of 2001, decided on 12th October, 2002.

(a) Islamic Law---

----Will---Bequest to heirs is not valid unless the other heirs consent to the bequest---Any single heir may consent so as to bind his own share---No evidence, in the present case, was available on record to show that the other legal heirs had ever consented to the bequest expressly or even impliedly either at the time of execution of will or after the death of the testator--­Validity---Will, in favour of heirs being valid only subject to the consent of other heirs, bequest would be void in the absence of assent of all legal heirs after the death of the testator.

Mahomedan Law by Mulla, para. 117; 1997 CLC 2012 and 2000 YLR 2937 ref.

(b) Islamic Law---

----Will---Conditional bequest---Bequest with a condition which derogates from the completeness of the grant takes effect as if no condition was attached to it, for the condition is void---One of the heirs, in the present case, was allowed through will only to receive the proceeds/income of the properties during her lifetime only whereafter the properties were to devolve on the other heirs---Validity---Bequest with such condition had not made the said heir the owner of the properties even during her lifetime, therefore, with such condition the bequest could not be considered to be bequest of property at all, removal of conditions, in such a situation, was essential to complete the grant of will---Bequest, in circumstances, was to be considered as if no condition was attached to the same---All the heirs of the testator, except one daughter, had accepted the will and had been found to have consented to the same thus binding themselves to the bequest of their shares in favour of the beneficiary of the will in the properties left by the testator---Properties of the testator, after removal of the condition attached to the bequest, except the share of the daughter who had not consented to the will, would be bequeathed to the beneficiary through the will while the daughter who had not accepted the will was entitled to receive her share.

Mahomedan Law by Mulla, para. 126 ref.

Ikhtiar Khan Marghazani for Petitioner.

Hamayun Tareen for Respondent.

Date of heading: 7th September, 2002.

P L D 2003 Quetta 60

Before Akhtar Zaman Malghani and Muhammad Nadir Khan, JJ

BASHIR AHMAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.S‑1 of 2002, decided on 12th October, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Motive for the occurrence was proved‑‑‑Sole eye‑witness of the incident was a natural witness whose presence with his deceased father on the spot was justified and his being son of the deceased did not make him interested to the extent of involving an innocent person in the murder of his father letting free the actual culprit‑‑‑Said eye‑witness was a reliable witness whose version was also corroborated by the F.I.R., other prosecution witnesses, medical evidence and the unexplained abscondence of accused for seven years‑‑‑Conviction and sentence of accused were upheld in circumstances.

Riaz Hussain v. The State 2001 SCMR 177 and Luqman v. The State PLD 2001 Pesh. 140 ref.

Amanullah Kanrani for Appellant.

Abdul Raheem Mengal, A.A. ‑G: for the State.

Date of hearing: 28th September, 2002.

P L D 2003 Quetta 68

Before Akhtar Zaman Malghani, J

FARUKH NAWAZ‑‑‑Appellant

Versus

FAISAL AJMAL and another‑‑‑Respondents

First Appeal from Order No.78 of 2001, decided on 20th December, 2002.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 13(5) & 13(5‑A)‑‑‑Criminal Procedure Code (V of 1898), S.29‑‑­Words "Court" and "Rent Controller" used in S.13 of the Ordinance‑‑­Connotation‑‑‑Proceedings against landlord‑‑‑Procedure‑‑‑Word "Court" used in S.13(5) of West Pakistan Urban Rent Restriction Ordinance, 1959, and Rent Controller mentioned in S.13(5‑A) of the said Ordinance, manifest the intention of Legislature that both the words are not synonymous to each other but have been used in different meanings‑‑‑Rent Controller is a persona designate and not a Court‑‑‑Before filing of application under S.13(5‑A) of West Pakistan‑ Urban Rent Restriction Ordinance, 1959, for restoration of possession before Rent Controller, it is essential for tenant to exhaust the remedy provided by S.13(5) of West Pakistan Urban Rent Restriction Ordinance, 1959, because action under subsection (5‑A) of the Ordinance, is subject to decision of Court made under S.13(5) of West Pakistan Urban Rent Restriction Ordinance, 1959, that too if Court convicts the landlord under S.13(5)‑‑‑Word "Court" has not been defined in West Pakistan Urban Rent Restriction Ordinance, 1959, nut any procedure has been prescribed thereunder for trial of the offence which has been made punishable under S.13(5) of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑­Expression "Court" referred in S.13(5) of Balochistan Urban Rent Restriction Ordinance, 1959, means a Court set up for trial of offences under S.29 of Cr.P.C.

PLD 1969 Lah. 251 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑

‑‑‑‑Ss. 13(5) & 13(5‑A)‑‑‑Proceedings against landlord‑‑‑Joint application under Ss.13(5) & 13(5‑A) of Urban Rent Restriction Ordinance, 1959‑‑­Maintainability‑‑‑Tenant handed over the possession of the premises to the landlord for construction of the same‑‑‑Grievance of the tenant was that the landlord did not construct the premises as it was stated in the ejectment proceedings initiated earlier‑‑‑Tenant filed application under Ss.13(5) & 13(5‑A) of West Pakistan Urban Rent Restriction Ordinance, 1959, against the landlord before Rent Controller, for restoration of possession of the premises and conviction of the landlord‑‑‑Rent Controller dismissed the application‑‑‑Validity‑‑‑Rent Controller had no jurisdiction to punish the landlord under S.13(5) of West Pakistan Urban Rent Restriction Ordinance, 1959, as the provisions of S.13(5‑A) of West Pakistan Urban Rent Restriction Ordinance, 1959, could come into play after the landlord was convicted‑‑‑Joint application under both the Ss. 13(5) & 13(5‑A) before Rent Controller was not competent‑‑‑Order of Rent Controller‑which touched the merits of the case was liable to be set aside as the same had been passed without jurisdiction‑‑‑Application filed by the tenant before Rent Controller was also liable to be dismissed as the same was incompetent‑‑‑High Court set aside the order passed by the Rent Controller and the application filed by the tenant was dismissed‑‑‑Appeal was disposed of accordingly.

1984 CLC 2804 ref.

(c) Administration of justice‑

‑‑‑‑ Judge is supposed to wear all the laws on his sleeves.

Abdul Rashid Awan for Appellant. Sarwar Javed for Respondents.

Date of hearing: 22nd November, 2002.

P L D 2003 Quetta 73

Before Raja Fayyaz Ahmed, C. J. and Akhtar Zaman Malghani, J

BAZ MUHAMMAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No. 129 of 2002, decided on 4th November, 2002.

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

‑‑‑‑S. 340(1)‑‑‑High Court Rules and Orders; Vol. III, Chap.24, Part C, paras. 1 & 2‑‑‑Right of accused to be defended by a counsel‑‑‑Trial .Court is duty bound in cases punishable with death where the accused is un-represented, to first ascertain whether he has means to engage a counsel or not and if it comes to the conclusion that he cannot afford to engage a counsel on his own, then it should make arrangement to employ a counsel for him on Government expenses‑‑‑All such exercise should be in black and white and apparent from record, so that the Appellate Court, can form its own opinion if an objection to this effect is taken at appellate stage.

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

‑‑‑‑S. 340‑‑‑High Court Rules and Orders, Vol. III, Chap.24, Part C, paras.1 & 2‑‑‑Right of accused to be defended by a counsel‑‑‑Section 340, Cr.P.C. must undoubtedly be construed liberally in favour of accused and must be read alongwith the High Court Rules and Orders, Vol. III,. Chap. 24, Rr. 1 & 2, which enjoin that where in capital cases the accused has no means to defend himself, a counsel should be provided to defend him.

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

‑‑‑‑S. 9(c)‑‑‑Criminal Procedure Code (V of 1'898), S.340(1)‑‑‑High Court Rules and Orders, Vol. III, Chap.24, Part C, paras. 1 & 2‑‑‑Accused not provided a counsel to defend him by Trial Court‑‑‑Case remanded‑‑‑Trial Court had neither tried to ascertain as .to whether the accused had enough means to engage a counsel for himself, nor he was afforded the services of a counsel on Government expenses which was mandatory in view of S.340, Cr.P.C. read with High Court Rules and Orders, Vol. III, Chap. 24, Rr. 1 & 2‑‑‑Accused had been awarded the sentence of imprisonment for life by the Trial Court on the basis of evidence recorded in absence of a counsel and he in the circumstances was entitled to de defended by a counsel under the law‑‑‑Impugned judgment was consequently set aside due to violation of the aforesaid provisions of law and the case was remanded to Trial Court for fresh decision after complying with the directions of High Court given in the case.

Syed Ayaz Zahoor for Appellant.

H.Shakeel Ahmad for ANF for the State.

Date of hearing: 9th October, 2002.

P L D 2003 Quetta 77

Before Amanullah Khan Yasinzai and Fazal‑ur‑Rehman. JJ

Major (R) NADIR ALI ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Ehtesab Appeal No. 13 of 2002, decided on 4th November, 2002.

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

‑‑‑‑S. 14‑‑‑Presumption against accused‑‑‑Adverse presumption under the NAB Ordinance cannot be drawn against the accused merely by filing a Reference in the Court, as burden shifts upon him to disprove the allegations‑‑‑Primarily prosecution is duty bound to prove the case against the accused that he had acquired property or had taken pecuniary advantage by corrupt, dishonest or illegal means and when it has made out a reasonable case through evidence satisfying the conscience of the Court regarding the guilt of accused, then the presumption shall be raised against him and onus would shift upon him.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 eel.

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

‑‑‑‑Ss.19/ 11 / 12‑‑‑Appreciation of evidence‑‑‑Accused was not proved to have acquired properties during his service without accounting for the same‑‑­Prosecution had failed in its duty to bring any, material on record to show that the property in question had been acqt4red by the accused through corrupt practices‑‑‑Despite the case against accused having remained under investigation for a very long period, nothing came on record to indicate that he was ever involved in any corruption or corrupt practices‑‑‑Accused had placed on record the documents showing that he. had obtained loan for purchasing the landed property which were not disputed‑‑‑Said land was subsequently sold by the accused in small plots‑at higher rates and his explanation in this regard seemed to be satisfactory‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad.and others PLD 2001 SC 607 ref.

Mazahir Ali for Appellant.

Muhammad Shaft Bakhshani, D.P.G. for the State.

Date of hearing: 17th September, 2002.

P L D 2003 Quetta 88

Before Raja Fayyaz Ahmed, C.J. and Akhtar Zaman Malghani, J

Maulana AMIR ZAMAN BUKHARI‑‑‑Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary, Constitution Avenue, Islamabad and 9 others‑‑‑Respondents

Constitutional Petition No.564 of 2002, decided on 2nd November, 2002.

(a) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss. 27 & 52‑‑‑Conduct of General Elections Order [Chief Executive's Order No.7 of 2002], Art. 6‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Allegation of rigging in election‑‑‑Election Commission directing re‑poll at two polling stations in view of grave irregularities, on the basis of report of the Returning Officer; statements of the contesting candidates and the Presiding Officers of the constituency relating to the polling stations recorded during the course of inquiry and report submitted to the Election Commission‑‑‑Contention of the petitioner was that rigging had taken place at 14 polling stations and re-polling be ordered at 14 polling stations and not at 2 as ordered by the Commission‑‑‑Validity‑‑‑Notification issued by Election Commission of Pakistan pursuant to order passed by the Member, Election Commission and perusal of inquiry report showed that at no stage, any material in support of the allegations regarding rigging and commission of gross irregularities at the 14 polling stations was produced by the petitioner, whose statement was also recorded by the Inquiry Officer nor any application appeared to have been submitted by the petitioner to the Inquiry Officer, showing his intention for production of the material‑‑‑Held, in absence of any evidence or supportive material produced by the Inquiry Officer there was no justification to hold that rigging had taken place at 14 polling stations‑‑‑Petitioner, in circumstances, could have recourse for the redressal of his grievance by filing Election Petition under S.52 of the Representation of the People Act, 1976‑‑‑Material available with the Member, Election Commission of Pakistan and Provincial Election Commissioner could not prove that report submitted by the Inquiry Officer and order passed by the Member, Election Commission of Pakistan suffered from any infirmity or impropriety so as to call for any interference by High Court in exercise of Constitutional jurisdiction‑‑‑Relief prayed for in the Constitutional petition for holding of re-poll at 14 polling stations, for want of material available or produced before the said forums thus could not be granted‑‑‑Principles.

(b) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑S. 27‑‑‑Conduct of General Elections Order [Chief Executive's Order No.7 of 2002], Art.6‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Rigging at polling stations‑‑‑Order of repoll by the Election Commission of Pakistan at said polling stations‑‑‑Validity‑‑‑Discretion vested in Election Commission of Pakistan for providing Schedule for holding of the repoll at such polling stations in exercise of powers vesting in the Commission by the relevant provisions of law could not be interfered with by the High Court in exercise of the powers under Art. 199 of the Constitution, unless it, was proved to the satisfaction of the Court that the powers, so exercised by the Election Commission were in violation of the law, not vested in it or that the same had not been exercised in accordance with the relevant provisions of law or that the same suffered from unreasonableness and were arbitrary, fanciful and perverse or substantially motivated by mala fides.

Kamran Murtaza for Petitioner.

Date of hearing: 31st October, 2002.

P L D 2003 Quetta 88

Before Raja Fayyaz Ahmed, C.J. and Akhtar Zaman Malghani, J

Maulana AMIR ZAMAN BUKHARI‑‑‑Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary, Constitution Avenue, Islamabad and 9 others‑‑‑Respondents

Constitutional Petition No.564 of 2002, decided on 2nd November, 2002.

(a) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑Ss. 27 & 52‑‑‑Conduct of General Elections Order [Chief Executive's Order No.7 of 2002], Art. 6‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Allegation of rigging in election‑‑‑Election Commission directing re‑poll at two polling stations in view of grave irregularities, on the basis of report of the Returning Officer; statements of the contesting candidates and the Presiding Officers of the constituency relating to the polling stations recorded during the course of inquiry and report submitted to the Election Commission‑‑‑Contention of the petitioner was that rigging had taken place at 14 polling stations and re-polling be ordered at 14 polling stations and not at 2 as ordered by the Commission‑‑‑Validity‑‑‑Notification issued by Election Commission of Pakistan pursuant to order passed by the Member, Election Commission and perusal of inquiry report showed that at no stage, any material in support of the allegations regarding rigging and commission of gross irregularities at the 14 polling stations was produced by the petitioner, whose statement was also recorded by the Inquiry Officer nor any application appeared to have been submitted by the petitioner to the Inquiry Officer, showing his intention for production of the material‑‑‑Held, in absence of any evidence or supportive material produced by the Inquiry Officer there was no justification to hold that rigging had taken place at 14 polling stations‑‑‑Petitioner, in circumstances, could have recourse for the redressal of his grievance by filing Election Petition under S.52 of the Representation of the People Act, 1976‑‑‑Material available with the Member, Election Commission of Pakistan and Provincial Election Commissioner could not prove that report submitted by the Inquiry Officer and order passed by the Member, Election Commission of Pakistan suffered from any infirmity or impropriety so as to call for any interference by High Court in exercise of Constitutional jurisdiction‑‑‑Relief prayed for in the Constitutional petition for holding of re-poll at 14 polling stations, for want of material available or produced before the said forums thus could not be granted‑‑‑Principles.

(b) Representation of the People Act (LXXXV of 1976)‑‑‑

‑‑‑‑S. 27‑‑‑Conduct of General Elections Order [Chief Executive's Order No.7 of 2002], Art.6‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Rigging at polling stations‑‑‑Order of repoll by the Election Commission of Pakistan at said polling stations‑‑‑Validity‑‑‑Discretion vested in Election Commission of Pakistan for providing Schedule for holding of the repoll at such polling stations in exercise of powers vesting in the Commission by the relevant provisions of law could not be interfered with by the High Court in exercise of the powers under Art. 199 of the Constitution, unless it, was proved to the satisfaction of the Court that the powers, so exercised by the Election Commission were in violation of the law, not vested in it or that the same had not been exercised in accordance with the relevant provisions of law or that the same suffered from unreasonableness and were arbitrary, fanciful and perverse or substantially motivated by mala fides.

Kamran Murtaza for Petitioner.

Date of hearing: 31st October, 2002.

P L D 2003 Quetta 94

Before Raja Fayyaz Ahmad, C.J., Akhtar Zaman Malghani and Muhammad Nadir Khan, JJ

MUHAMMAD ASLAM BHOTANI---Petitioner

Versus

ELECTION TRIBUNAL and 2 others---Respondents

Constitutional Petition No.477 of 2003, decided on 18th September, 2002.

(a) Representation of the People Act (LXXXV of 1976)---

----S. 99(1A)(k)---Conduct of General Elections Order [Chief Executive's Order No. 7 of 2002], Art. 8D---Constitution of Pakistan (1973), Arts. 199 & 225---Election dispute---Constitutional jurisdiction of High Court under Art.199 of the Constitution---Scope---Bar as contained in Art. 225 of the Constitution-- Extent---Qualification and disqualification of contestants---Bar as contained under Art. 225 of the Constitution will not be absolute in the exercise of powers by the High Court under Art. 199 of the Constitution in a case where an order of election functionary is patently illegal/without jurisdiction and the effect of which is to defrenchise a candidate--­Constitutional jurisdiction of High Court, therefore, can be pressed into service by a defrenchised candidate---Principles.

(b) Representation of the People Act (LXXXV of 1976)---

----S. 99(1A)(k) & 14(5-A)---Conduct of General Elections Order [Chief Executive's Order No.7 of 2002], Art. 8D(2)(k)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Nomination papers of the candidate were objected to on the ground that he stood disqualified to contest election within the meaning of Art. 8D(2)(k) of the Conduct of General Elections Order, 2002 read with S.99(1A)(k) of the Representation of the People Act, 1976---Qualification and disqualification of a candidate--­Resignation of candidate from civil service was accepted by the Competent Authority with effect from 7-12-1999 by superseding an earlier notification on the matter---Powers of Election Tribunal to examine vires of such subsequent notification---Scope---Election Tribunal was not conferred with the jurisdiction to examine the validity, legality, justification or vires of an order passed by a Competent Authority or a Notification issued by such Authority in exercise of the powers vesting in it---Election Tribunal, in circumstances, had no jurisdiction to examine the vires of the subsequent notification nor could the Tribunal determine that the same was issued without any lawful authority and was of no legal effect---Election Tribunal was vested with the limited specified jurisdiction to decide the validity or invalidity of the nomination papers in the light of the subsequent notification issued by the Competent Authority as the Tribunal could not go behind such notification and to find out the justification, reasons or grounds for exercising the powers vesting in the Competent Authority under the relevant service laws and to substitute the same with its own reasons and grounds by examining the vires of the subsequent notification---Notification pertaining to the retirement of civil servant issued by the Competent Authority, thus, was immune from challenge in appeal before the Election Tribunal being divested of the jurisdiction to examine the vires of the subsequent Notification issued under the hierarchy of the Service Laws---Principles---High Court, in circumstances, declared the candidate to be a validly nominated candidate by granting consequential relief that his nomination papers be processed by the Returning Officer to the Election Commission of Pakistan through the Provincial Election Commissioner enabling him to contest the election.

PLD 1973 SC 236 fol.

1991 CLC 1; 1986 SCMR 1736; 1990 MLD 2258; PLD 1973 SC 236; PLD 1978 Quetta 17; Election Commission of Pakistan v. Javed Hashmi and others PLD 1989 SC 396 PLD 1994 SC 60; 1991 SCMR 1041; PLD 1996 SC 717; PLD 1997 SC 32; 1994 SCMR 1299 and Pir Sabir Shah's case PLD 1994 SC 738 ref.

H. Shakeel Ahmed for Petitioner.

Azad Abbas Zaidi and S.A.M. Quadri for Respondent No.3.

K.N. Kohli, Dy. A.-G. (on Court's Notice).

Ghulam Mustafa Mengal, Asstt. A.-G, for Respondents Nos. 4 and 5.

Kamran Murtaza for Respondent Saleh Muhammad Rind (impleaded as one of the Respondents).

Muhammad Suleman (Respondent No.3) present.

Syed Abdul Marian, S.O.I, Services and General Department, Balochistan, Quetta.

Aftab Ahmed Baloch, Section Officer, Home Department.

Sajjid Haider, PDSP for Respondent No.5 (present).

Date of hearing: 17th September, 2002.

P L D 2003 Quetta 109

Before Amanullah Khan Yasinzai and Fazal‑ur‑Rahman, JJ

MUHAMMAD AYUB and others‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeal No.(S)6 and Criminal Revision No.(S)7, and Criminal Acquittal Appeal No.(S)24 of 2001, decided on 7th January, 2003.

(a) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302(b)‑‑‑Criminal Procedure Code (V of 1898), S.417(2‑A)‑‑‑Appeal against acquittal‑‑‑Plea of alibi taken by one accused stood proved‑‑‑Other accused was allegedly standing near the place of incident empty‑handed and no overt act was assigned to him of firing on the deceased‑‑‑Improbable for an accused to associate himself for commission of murder coming empty handed‑‑‑Trial Court had rightly acquitted the accused in circumstances‑‑‑Appeal against acquittal of accused was dismissed accordingly.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Principle‑‑‑Maxim "falsus in uno falsus in omnibus" is not applicable‑‑‑Where net is spread wider to rope in as many male members as possible, Court has to sift the grain from the chaff‑‑­Where statement of a witness is not believed against one accused, the same cannot be automatically discarded qua the other accused and can be used against him if it inspires confidence and is corroborated or rings true.

Mir Hassan and another v. The State and others 1999 SCMR 1418 and Khairu v. State 1981 SCMR 1176 ref.

(c) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Presence of eye‑witness at the place of incident was established who had nominated the accused in his statement recorded under S.161, Cr.P.C. soon after the incident by the Investigating Officer and had attributed to him the role of firing on the deceased‑‑‑Statement of the said eye‑witness inspired confidence and appeared to be true‑‑‑Plea of alibi taken by accused in his defence being not convincing had been ruled out of consideration‑‑‑Conviction and sentence of accused were upheld in circumstances.

(d) Penal Code (XLV of 1860)‑‑--

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Eye‑witness had not nominated the accused in his first statement recorded under S.161, Cr.P.C. and introduced his name for the first time in his second statement recorded under S.161, Cr.P.C. by the Crimes Branch Police‑‑‑Said eye‑witness could not satisfactorily explain as to why he had not nominated the accused in his first statement‑‑‑Prosecution had spread the net wider to involve as many male members as possible‑‑‑Presence of accused at the scene of occurrence seemed to be doubtful‑‑‑Accused was acquitted in circumstances.

(e) Penal Code (XLV of 1860)‑‑--

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Principle‑‑‑Witness‑‑‑Conviction can be based on the solitary statement of a witness, provided the same inspires confidence and satisfies the conscience of the Court.

Muhammad Aslam Chishti for Appellants.

Abdul Raheem Mengal, Asstt. A.‑G. for the State.

Muhammad Sadiq Ghuman for the Complainant.

Date of hearing: 16th November, 2002.

P L D 2003 Quetta 122

Before Fazal-ur-Rehman, J

QAISER KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.(ATA) No.(S)03 of 2003, decided on 16th May, 2003.

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

----Ss. 6 & 7---Penal Code (XLV of 1860), Ss.324/34---Appreciation of evidence---Jurisdiction of Anti-Terrorism Court---Additional Sessions Judge after framing charge against accused under S.324/34 transferred case to Anti ­terrorism Court without giving any reason---Transferee Court took cognizance of the case without bothering to examine as to whether offence as alleged in the case had any nexus with terrorism or with the object of Anti­ Terrorism Act, 1997---Assumption of jurisdiction in the matter by said Special Court was not justified as prima facie, case did not involve element of terrorism and had no nexus with object of Anti-Terrorism Act, 1997 as neither the case had been registered under S.7(c) of Anti-Terrorism Act, 1997 nor investigation was carried out under provisions of said Act nor challan was submitted to said Court by prosecution---Such was a simple case under S.324, P.P.C. which offence was not committed in a manner which struck terror or created a sense of fear and insecurity in the people or in a section of people except in the ordinary sense of insecurity created at the time of commission of every crime ---Punishment awarded by Judge Anti­ Terrorism Court to accused, was not according to law and principles of Islamic dispensation of criminal justice---Judgment of Special Court was set aside and case was remanded to Special Judge with direction to send the same to Court of Additional Sessions Judge who would decide case strictly accordance with law.

PLD 1992 Lah. 99 ref.

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

----Ss. 338-F & 324---Interpretation of Chap. XLI of Penal Code, 1860--­Islamic Law in cases relating to offences enumerated in Chap. XVI, P.P.C., to be applied in view of provisions of S.338-F, P.P.C.---Provisions of S.338-F, P.P.C. required that while interpreting and applying provisions of Chap. XVI, P.P.C., Court was to be guided by Injunctions of Islam as laid down in Holy Qur'an and Sunnah---By virtue of provisions of S.338-F, P.P.C. in the matter of interpretation and application of law to Qisas and Diyat, Court was to be guided by Injunctions of Islam as laid down in Holy Qur'an and Sunnah---According to provisions of S.4(a) of Enforcement of Shariah Act, 1991 all conflicts or doubts in the provisions of all the statutes were to be resolved in accordance with Injunctions of Islam---Criminal law, in circumstances, had to be interpreted, applied and enforced in a manner so as to achieve the objectives for which amendments were brought about and thus while considering or interpreting the law relating to hurt, Islamic Law had to be followed.

Ikhtiar Khan Marghzani for Appellant.

Abdul Rahim Mengal, Asstt.A.-G. for the State.

Muhammad Sadiq Ghumman for the Complainant.

Date of hearing: 8th May, 2003.

P L D 2003 Quetta 128

Before Amanullah Khan Yasinzai, J

Haji BAZ MUHAMMAD and another---Petitioners

Versus

Mst. HUMERA alias SHIREEN TAJ and 3 others---Respondents

Civil Revision No. 137 of 2002, decided on 16th May, 2003.

(a) Administration of justice---

---- Ignorance of law could not be entertained as a good ground for non­compliance of the law.

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

----O. XIII, R.1---Documentary evidence to be produced at first hearing--­Object of mandatory provision of O.XIII, R.1, C.P.C. elaborated.

The provisions of Order XIII, rule 1, C.P.C. are mandatory and the documents relied upon should have been produced at the time of hearing. The object of rule 13 is to obviate the possibility of presenting forged or suspicious documents by the parties at a later stage of the proceedings. That under the law, the parties are required to produce their documents at the earliest stage and purpose being that both the parties should know as to what is the case against them and what documents are being relied upon. The question regarding documentary evidence relied upon by the parties must be resolved at an earlier stage of the proceedings so that, other parties should not be taken by surprise at a belated stage. In case in hand the documents proposed to be produced had not been relied upon nor referred in the written statement and no sound and cogent reason for non-production of the said documents were given. The contention that the said document'. were not in possession of the party ar the time of filing of written statement was belied by their first application filed for additional evidence. Thus the trial Court had rightly refused to entertain the application under Order XIII, rule 1, C.P.C.

Muhammad Aamir v. Waris Iqbal and others 1990 SCMR 964 ref.

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

----S. 115 & O. XIII, R. 1---Revision---Case decided---Dismissal of application filed under O. XIII, R. 1, C.P.C. by the Trial Court being not a "case decided", revision petition against such order was not maintainable.

Naeem Akhtar for Petitioners.

Adnan Basharat and Syed Muhammad Tahir Attorney for Respondents Nos.4 to 17.

Date of hearing: 25th October, 2002.

P L D 2003 Quetta 131

Before Amanullah Khan Yasinzai and Fazal-ur-Rehman, JJ

Mst. FARAH IQBAL---Petitioner

Versus

MUHAMMAD ANWAR and 2 others---Respondents

Constitutional Petition No.370 of 2002, decided on 7th April, 2003.

Islamic Law---

---- Custody of female minor---Welfare of minor was the paramount consideration in determining the custody notwithstanding the right of the father or mother---Mother could not be refused the custody of minor solely on the ground that she had no independent income of her own---Father was supposed to provide maintenance and mother's inability to provide maintenance would not disentitle her, from the custody of minor---Grounds on which the mother would be disentitled or lose the right of custody of minor enumerated---No such disqualification, in the present case, was attributable to the mother, High Court taking into consideration the welfare of the minor gave the custody of the minor to the mother till the minor attained the age of puberty and directed the father to pay for the maintenance of minor including school fees, clothes etc.

Decisions relating to custody of minors, are regulated under Islamic Personal Law and there is consensus amongst the Muslim Jurists that, for her right of custody (Hizanat), the mother is entitled to keep the custody of male child up to the age of 7 years, when he becomes independent, himself capable of shifting, drinking, eating and performing other natural functions without assistance and thereafter the custody devolves upon the father or next paternal relation. Thus the right of the mother to custody in respect of male child ceases at the age of 7 years. The right of "Hizanat" qua a female child pertains to mother till the appearance of menstrual discharge i.e. age of puberty. Thereafter, father becomes entitled to the custody of female child. Besides, the mother having the custody of child becomes disentitled or loses the right of custody of a minor, on the following 'grounds:--

(1) If she marries a person not related to the female child within the prohibited degree, or

(2) if she goes and resides during the subsistence of the marriage, at a distance from the minor's father's place of residence, or

(3) if she is leading an immoral life, as where she is a prostitute; or

(4) if she neglects to take care of the child.

While deciding the cases pertaining to the custody of minors, the paramount consideration in determining the same; notwithstanding the right of father or mother, is the welfare of minor itself.

Mother cannot be refused the custody of minor solely on the ground that, she had no independent income of her own. It is always, the father, who has to provide maintenance and mother's inability to provide maintenance would not disentitle her, from the custody of minor.

Record revealed that, mother, in the present case, had been disallowing the minor to meet her father, despite clear directions of the Court and besides this, there was no such other allegation against her. She was living in her parent's house and had not re-married. It had also come on record that, her brother was a Doctor by profession and she herself had done Graduation from Punjab University and further her father was a well established businessman, doing business of Jewellery and had been paying for her expenses till today. The minor had been admitted in a renowned English Medium School, and it had been stated at Bar that, she was doing well in the school.

Thus, keeping in view the provisions of Islamic Law and taking into consideration the welfare of minor, mother was entitled for the custody of minor, till she attained the age of puberty.

The mother, however, shall make arrangements for meeting of minor with her father and grandfather, on every Sunday from 10-00 a.m. to 4-00 p.m. besides allowing the father and grandfather to meet with the minor on Eid days and birthday. In case, the mother failed to facilitate the meeting of minor with her father and grandfather, it would be a violation of the order of the Court, ensuing on disqualification of custody of minor. The minor shall be taken up on every Sunday at 10-00 a. m. from the house of the mother by the father and shall be dropped back at 4-00 p.m. However, he being the father of minor shall also pay for the maintenance of minor including school fees clothes etc.

Ch. Mumtaz Yousaf for Petitioner, Muhammad Aslam Chishti for Respondents

Date of hearing: 11th December, 2002.

P L D 2003 Quetta 136

Before Akhtar Zaman Malghani, J

BUZARG JAMIL and others‑‑‑Appellants

Versus

Haji ABDUL BARI and others‑‑‑Respondents

First Appeal from Orders Nos.2 and 14 of 2002, decided on 18th October, 2002.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑---

‑‑‑‑S. 13(2)(i)‑‑‑Default in payment of rent‑‑‑Rent for the disputed period was deposited by the tenants with the Rent Controller within the due time but name of the person in whose favour the deposit was made was not mentioned in the Bank Challan and the municipal number of the property in question was also not given‑‑‑Tenants had not offered any explanation for non­ mentioning the name of landlord in the Bank Challan nor had stated that the omission was inadvertent‑‑‑Effect‑‑‑Omission of the name of the landlord being deliberate and not due to some inadvertence, the deposit of rent without mentioning the name of landlord could not be termed as lawful tender‑‑‑Mere withdrawal of rent by the landlord would not amount to waiver of the right of the landlord to apply for eviction on the ground of default‑‑‑Principles.

The rent for the disputed period, in the present case, was deposited by the tenants with the Rent Controller within the due time but name of the person in whose favour the deposit was made was not mentioned. Similarly municipal number of shop was also not mentioned. The only question needing consideration was as to whether such a deposit could be termed/considered due tender of rent within the meaning of section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959.

There is marked difference between the provisions of section 13(2) and section 13(63 of the Ordinance. In the former case Rent Controller has been given discretion not to grant ejectment application on the ground of non‑payment of rent, if the facts of the case so warrant. The words "the Controller may make an order directing the tenant to put the landlord in possession of the building" have been used in section 13(2) of the Ordinance whereas in section 13(6) it has been provided that if a tenant makes default of rent order passed under the above subsection, his defence shall be struck off and the landlord be put into possession of the property. The use of word "shall" in section 13(6) of the Ordinance is in contrast to word "may" used in subsection (2) of section 13, of the Ordinance, therefore, Rent Controller has discretion in the matter falling under section 13(2) of the Ordinance.

But question arises under what circumstances the discretion can be exercised in favour of tenant despite the fact that he had failed to pay the rent and committed default. Before penalizing a tenant it is obligatory for the Controller to ascertain whether alleged default was deliberate and wilful or not.

The word "default" in legal terminology necessarily imports an element of negligence or fault and means something more than mere non­compliance. To establish default one must show that the non‑compliance has been due to some avoidable cause, for, a person ought not to be made liable for a failure due to some cause for which he is, in no way, responsible or which was beyond his control. It is not lightly to be presumed that the law intends to cause injustice or hardship, unless the Legislature has made its intention clear. That construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle too the word "default" should mean an act done in breach of a duty or in disregard of an order or direction.

Tenants had not offered any explanation for non‑mentioning the name of landlord in bank challan. Nor had they stated that this omission was inadvertent. In such circumstances it can be safely concluded that the omission of the landlord's name was deliberate and not clue to some inadvertence and the deposit of rent without mentioning the name of landlord cannot be termed as lawful tender.

Mere withdrawal of rent does not amount to waiver of the right of the landlord to apply for eviction on the ground of default.

The rent deposited by the tenants without mentioning the name of the landlord and number of shop, was not a lawful tender within the meaning of section 13(2)(i) of the Balochistan Urban Rent Restriction Ordinance and the Rent Controller rightly ordered for the eviction of the tenants from the rented premises on the ground of default in payment of rent.

Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530 and PLD 1980 SC 9 ref.

1987 SCMR 1013 and PLD 1998 Quetta 9 distinguished.

W.N. Kohli and Muhammad Usman for Appellants.

Qahir Shah for Respondents.

Date of hearing: 7th October, 2002.

P L D 2003 Quetta 142

Before Amanullah Khan Yasinzai and Ahmed Khan Lashari, JJ

Mst. SHEREEN GUL‑‑‑Appellant

Versus

JAMEEL AHMED PARACHA‑‑‑Respondent

Regular First Appeal No.49 of 1998, decided on 3rd July, 2003.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.12 & 54‑‑‑Suit for specific performance of agreement of sale and injunction‑‑‑Suit house, at time of sale, was mortgaged with House Building Finance Corporation‑‑‑Agreement of sale was arrived at between plaintiff and attorney of original owner of suit house, who was husband of original owner‑‑‑Power of attorney in favour of attorney was executed in the year 1984 whereas sale agreement on basis of said power of attorney was executed by attorney in 1994 i.e. ten years after execution of power of attorney‑‑­Defendant in her written statement had specifically stated that she had executed power of attorney in favour of her husband simply for management of the property and had not at all authorized him to sell the suit house‑‑­Agreement of sale arrived at between the plaintiff and attorney of defendant was result of a misrepresentation by said attorney who posed himself to be sole owner of suit house and said agreement was executed by him as sole owner and not in the capacity of attorney‑‑‑Sale agreement in question could not be enforced against defendant and at the time of execution of said agreement plaintiff should have looked into the title documents of suit house‑‑‑Nothing was available on record to show that attorney was authorized to sell suit house or such powers were given by the defendant/original owner to her attorney‑‑‑Trial Court was under legal obligation to have protected the interest of defendant, Pardanasheen lady‑‑­Suit house which otherwise was a mortgaged property being not in the name of attorney/husband of defendant, attorney was not competent to enter into sale agreement with plaintiff in his personal capacity‑‑‑Plaintiff, at the time of filing of suit had the knowledge that the suit house was mortgaged with House Building Finance Corporation but no prayer for redemption of the same was made‑‑‑Suit by plaintiff on that score alone was not maintainable‑‑­Trial Court having not taken into consideration such facts on record, suit merited dismissal‑‑‑Judgment and decree passed by Trial Court were set aside in appeal by High Court and suit was dismissed.

1992 SCMR 1488 and 1998 SCMR 96 ref.

Basharatullah for Appellant.

Mujeeb Ahmed Hashmi for Respondent

Date of hearing: 28th May, 2003.

P L D 2003 Quetta 147

Before Muhammad Nadir Khan, J

MUKHTIAR HUSSAIN ‑‑‑Appellant

Versus

MUHAMMAD AYUB and 4 others‑‑‑Respondents

First Appeal from Order No.49 of 2002, decided on 30th June, 2003.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S.13‑‑‑Ejectment of tenant‑‑Second ejectment application‑‑­Maintainability‑‑‑Law did not bar filing of second ejectment application if subsequently any ground provided by S.13 of West Pakistan Urban Rent Restriction Ordinance, 1959 would become available to landlord.

Dr. Arbab Ali Ahmed v. Sarwar Khan 2000 MLD 87 and Messrs F.K. Irani & Co. v. Begum Feroz 1996 SCMR 1178 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S.13‑‑‑Eiectment of tenant‑‑‑Payment of amount as 'Pagri' to landlord or previous tenant‑‑‑Proof‑‑‑Tenant had claimed that he had acquired shop in question after making payment of amount as advance and as ' Pagri' to the previous tenant with the consent of landlord‑‑‑Tenant could not produce any evidence to prove the payment of advance and Pagri to previous tenant‑‑­Mere assertions of the tenant in that respect which were denied by the landlord, could not be given status of a proof‑‑‑Contention of the tenant was that ejectment of tenant could not be ordered on the ground of personal need of landlord, where the landlord had received huge amount as 'Pagri' from the tenant‑‑‑Contention was repelled because no bar existed on landlord to seek ejectment of tenant from whom 'Pagri' had been received by him, besides payment of any amount on account of 'Pagri', would not create tenancy in perpetuity and same could not operate as bar against the landlord to seek ejectment of tenant on any ground provided under S.13 of West Pakistan Urban Rent Restriction Ordinance. 1959‑‑‑Payment of any amount, if made, by tenant to previous owner was not to affect the maintainability of ejectment application on grounds provided under S.13 of West Pakistan Urban Rent, Restriction Ordinance, 1959‑‑‑Tenant, however could approach the competent Court of law for recovery of such amount if law so permitted.

Malik Muhammad Zakria Kasi v. Dr. Bashir Ahmed PLD 2001 Quetta 40 and Sheikh Muhammad Yousaf v. District Judge and 2 others 1987 SCMR 307 ref.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 13(2)(ii)(a), 13(3)(ii) & 15‑‑‑Bona fide personal need of landlord and allegation of subletting‑‑‑Evidence on record had reflected that tenant himself was not carrying out business in the shop in question which at different times was of different natures and tenant being a Government servant and having remained posted at other place, could not himself carry on any business‑‑­Tenant was to prove as to how and through whom business of different kinds was being carried on by him, but he failed to prove the same‑‑‑Landlord had filed ejectment application against tenant on three grounds namely default in payment of rent; subletting of shop and his personal bona fide need‑‑­Ejectment application had been allowed by the Rent Controller on the sole ground of personal bona fide need of landlords‑‑‑Landlord though had not challenged the findings of Trial Court with regard to subletting anti default in payment of rent by tenant in appeal or cross‑objections, landlord could not be refused his right to challenge said findings when whole of the matter had been re‑opened in appeal‑‑‑Findings of Rent Controller on issue of subletting having been found to be invalid, could not be upheld only because no appeal or cross‑objection was filed by the landlord‑‑‑Findings of Rent Controller were set aside and tenant was found to have sublet the shop in question on different occasions to different persons who had been carrying on business of different nature.

Mansoor Hassan and others v. Abbas Ali Khan 1981 CLC 669; Syed Muhammad Abbas v. Mst. Khatoon Bai 1988 CLC 667; 2003 SCMR 74; Syed Zaiul Hasan alias Thah Peer v. The State 1998 SCMR 1582; Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsingi and others AIR 1965 SC 669; Tepfulo Nakhro Angami v. Shri Ravoluei alias Rani M. Shazia AIR 1972 SC 43 ref.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss.13(3)(ii) & 15‑‑‑Bona fide personal need of landlord‑‑‑Choice of landlord‑‑‑Scope‑‑‑Law had not imposed any bar on a person to establish a new business despite the fact that he was already running a business or that he was a wealthy person as no barrier could be put to limit earning of a person‑‑‑Even if landlord had a family business, same could not deprive the landlord from establishing another independent business‑‑‑Landlord could choose any of his property for his personal use and said choice could not be questioned on the ground that no evidence had been produced to show that, said premises was suitable for such kind of business‑‑‑Claim of landlord could be attacked only if same was found to be tainted with mala fides ‑‑‑ No mala fides on the part of landlord having been pointed out, bona fides of landlord could not be doubted only because previously he‑filed ejectment application on one of the grounds provided by S.13 of Vest Pakistan Urban Rent Restriction Ordinance, 1959, but he failed to prove the same ‑‑Right of tenant, however, was safeguarded by S.13(4) of West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Landlords not only had proved that shop in question was required for their personal use and occupation, but it was also proved that shop in question was sublet by tenant making himself liable for ejectment‑‑‑Appeal filed by tenant against his ejectment was dismissed, in circumstances.

Ayaz Sawati for Appellant.

Mumtaz Baqri for Respondents.

Date of hearing: 16th June, 2003.

P L D 2003 Supreme Court 1

Present: Sh. Riaz Ahmad, C.J., Abdul Hameed Dogar and Muhammad Nawaz

Abbasi, JJ

MUHAMMAD AJMAL--‑Petitioner

Versus

THE STATE through Advocate‑General, Punjab‑‑‑Respondent

Criminal Petition for Leave to Appeal No.80 of 2002, decided on 17th October, 2002.

(On appeal from the judgment dated 14‑12‑1999 of the Lahore High Court, Multan Bench, Multan, passed in Criminal Appeal No. 110 of 1997 and Murder Reference No. 109 of 1997).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/109‑‑‑Juvenile Justice System Ordinance (XXII of 2000), S.7‑‑­Constitution of Pakistan (1973), Art.185(3)‑‑‑Age of accused‑‑‑Trial Court as well as Appellate Court while discarding the School Leaving Certificate produced by the accused had rightly concluded that he was not below the age of 18 years on the day of incident‑‑‑Accused had neither agitated the point of his minority during investigation nor produced any documentary evidence, but took such plea for, the first time in the trial which appeared to be an afterthought‑‑‑Ocular account furnished by the eye‑witnesses including the injured witness was fully corroborated by medical evidence, motive, recovery of weapon of offence at the instance of accused and positive Serologist's Report‑‑Accused had committed the cold‑blooded murders of his mother‑in‑law and her mother in a brutal and atrocious manner and he did not deserve any leniency in the matter of sentence‑‑‑Impugned judgment did not call for any interference‑‑‑Leave to appeal was refused accordingly.

M. Saleem Sheikh, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 17th October, 2002.

P L D 2003 Supreme Court 6

Present: Iftikhar Muhammad Chaudhry, Khalil‑ur‑Rehman Ramday and Faqir

Muhammad Khokhar, JJ

CHAIRMAN/SECRETARY, PAKISTAN RAILWAYS, MINISTRY OF

RAILWAYS, GOVERNMENT OF PAKISTAN, ISLAMABAD and

others‑‑‑Petitioners

Versus

MUHAMMAD SHARIF JAVAID WARSI‑‑‑Respondent

Civil Petition No.775 of 2001, decided on 16th October, 2002.

(On appeal from the judgment/order dated 13‑12‑2000, passed by Federal Service Tribunal, Islamabad in Appeal No.1862(R)/1999).

Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Condonation of delay‑‑‑Delay of 21 days was sought by the Authorities to be condoned‑‑­Plea raised by the Authorities for condonation of delay was that the delay in filing of the petition for leave to appeal was not intentional or deliberate but due to the fact that the judgment was received in the concerned office i.e. Law Branch after some delay‑‑‑Validity‑‑‑No preferential treatment is to be offered to Government Department qua the civil litigation‑‑‑Supreme Court declined to condone the delay and took serious note of the conduct of Government officials and directed that the officers of Government Departments who were responsible for causing delay in instituting proceedings before different Courts should be penalized because on account of their such conduct Government sustained considerable loss which ultimately had to be borne by the public and lethargic tactics of the delinquent officers could not be tolerated merely either on account of their ignorance of law or for any extraneous consideration‑‑‑Supreme Court expected that Government functionaries would take interest to institute the proceedings before Courts of law within time as per law of limitation.

Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Ltd. 1990 SCMR 1059; Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396; Federation of Pakistan through Secretary Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5 others v. Jamaluddin and others 1996 SCMR 727; 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 and Chairman, District Evacuee Trust, Jhelum v. Abdul Khaliq PLD 2002 SC 436 fol.

Jehangir A. Jhoja, Senior Advocate Supreme Court and Faiz‑ur­-Rehman, Advocate‑on‑Record for Petitioners.

Tariq M. Khokhar, Addl. A.‑G., Punjab, Imtiaz Ali, Addl. A.‑G., N.‑W.F.P., Raja Qureshi, A.‑G., Sindh and Suleman Habibullah, Addl. A.‑G., Sindh (on Court's Notice).

Syed Zafar Ali Shah, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Respondents.

Date of hearing: 16th October, 2002.

P L D 2003 Supreme Court 11

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

THE STATE through Prosecutor General, NAB, Pakistan‑‑‑Petitioner

Versus

Dr. DAD MUHAMMAD KHAWAJA KHAIL‑‑‑Respondent

Criminal Petition No.24‑Q of 2002, decided on 24th October, 2002.

(On appeal from the order dated 10‑4‑2002 of the High Court of Balochistan, Quetta, passed in Ehtesab Appeal No.6 of 2002).

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

‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973). Art.185(3)‑‑‑Contentions were that the plea of bargaining had been accepted by the Appellate Court contrary to the provisions of S.25(a) of the NAB Ordinance; that no opportunity was given to the State Counsel for obtaining instructions from National Accountability Bureau and without calculating the liability of the accused in terms of money he had been ordered to be released subject to adjustment of some amount; that appeal had already been heard by High Court and judgment was reserved and it was not fixed for 10th April, 2002, when it was got enlisted for hearing and the impugned order was passed without affording proper opportunity of hearing to the State; that High Court had kept intact the portion of the judgment of the Accountability Court to the extent, of disqualification of the accused, but nothing was expressed in respect of his sentence for the period of nine years and that the impugned judgment being ab initio void in the eye of law was not sustainable against which limitation would not run‑‑‑Leave to appeal was granted, inter alia, to examine the said contentions subject to question of limitation to be decided at the time of hearing of the appeal.

M.S. Rakhshani, Dy. Prosecutor‑General, NAB and Mrs. Ashraf Abbas, Advocate‑on‑Record for Petitioner.

Muhammad Aslant Chishti, Advocate Supreme Court and Ehsanul Haq, Advocate Supreme Court and S.A.M. Quadri, Advocate‑on‑Record for Respondent.

Date of hearing: 24th October, 2002.

P L D 2003 Supreme Court 14

Present: Rana Bhagwandas, Abdul Hameed Dogar and Khalil‑ur‑Rehman Ramday, JJ

MUHAMMAD AZAD ‑‑‑Appellant

Versus

AHMAD ALI and 2 others‑‑‑Respondents

Criminal Appeal No.510 of 1995, decided on 7th October, 2002.

(On appeal from the judgment dated 18-7‑1995 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Criminal Appeal No.212 of 1991, P.S.L.A. No.3 of 1992 and Murder Reference No.26 of 1992).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted to complainant by Supreme Court to ascertain as to whether proper appreciation of evidence had been made by the High Court while acquitting the accused.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑‑Appeal against acquittal‑‑‑Private complaint suffered from an unexplained delay of three months and four days which apparently had been filed after due deliberation, consultation and in consonance with the injuries shown in the post‑mortem report‑‑‑Complainant and eye‑witnesses had improved the prosecution case by exaggerating the matter beyond the contents of the F.I.R. registered earlier by the complainant, in order to bring the case in consonance with the medical evidence‑‑‑Ocular evidence was falsified by the medical evidence making the incident an unseen one‑‑‑Finding of acquittal recorded by the High Court could not be shown as perverse, arbitrary or capricious‑‑­Appeal against acquittal of accused was dismissed in circumstances.

Allah Bakhsh and another v. Ghulam Rasool and 4 others 1999 SCMR 223 and The State v. Nazir Ahmad and others 1999 SCMR 610 ref.

Sardar Muhammad Latif Khosa, Advocate Supreme Court instructed by Sh. Salahuddin, Advocate‑on‑Rec6rd for Appellant. .

Tariq Azam Chaudhry, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Respondents.

Date of hearing: 7th October, 2002.

P L D 2003 Supreme Court 19

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Kramat Nazir Bhandari, JJ

MUHAMMAD MUSHTAQ ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition No.286 of 2002, decided on 17th October, 2002.

(On appeal from the order dated 27‑6‑2002 in Criminal Appeal No. 997 of 2002 passed by the Lahore High Court, Lahore).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 228‑‑‑Criminal Procedure Code (V of 1898), Ss.476, 480 & 482‑‑­Intentional insult or interruption caused to public servant sitting in judicial proceedings‑‑‑Procedure in certain cases of contempt‑‑‑Court in whose presence an offence has been committed has option either to proceed for the offence under S.228, P.P.C. read with S.476, Cr.P.C. or to proceed against the offence under S.480 or 482, Cr.P.C.

Irshad Ahmad v. The State 1992 SCMR 1229; Emperor v. Ram Lal Arland AIR 1940 Lah. 233; Bachai Singh v. State AIR 1959 All. 693; M. Muhammad Akram Warraich v. Ata Muhammad Naz, Civil Judge 1989 MLD 3319 and Ghulam Shabbir v. The State and another 1991 MLD 487 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 228‑‑‑Criminal Procedure Code (V of 1898), S.476‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Accused, who was a Naib Qasid of the Senior Civil Judge, had, without any permission, suddenly entered into the Chamber of the Additional Sessions Judge and informed him that the accused on whose bail application an order was to be passed was his brother‑in‑law‑‑­Such act of the accused amounted to gross contempt and fell within the purview of offence under S.228, P.P.C. read with S.476, Cr.P.C.‑‑­Conviction of accused was consequently maintained, but taking a lenient view his sentence of simple imprisonment was converted into sentence of fine of Rs.200 only and in case of default in payment of fine he was to undergo simple imprisonment for one month which he had already undergone‑‑­Petition for leave to appeal was, converted into appeal and partly allowed accordingly.

Irshad Ahmad v. The State 1992 SCMR 1229; Emperor v. Ram Lal Arland AIR 1940 Lah. 233; Bachai Singh v. State AIR 1959 All. 693; Muhammad Akram Warraich v. Ata Muhammad Naz, Civil Judge 1989 MLD 3319 and Ghulam Shabbir v. The State and another 1991 MLD 487 ref.

Muhammad Amin K. Jan, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Sardar Muhammad Siddique, Advocate Supreme Court for the State.

Date of hearing: 17th October, 2002.

P L D 2003 Supreme Court 26

Present: Rana Bhagwandas, Abdul Hameed Dogar and Khalil‑ur‑Rehman Ramday, JJ

MURAD BAKHSH and another‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

Criminal Petition No.24‑Q and Criminal Appeal No.235‑Q of 2001, decided on 8th October, 2002.

(On appeal from the judgment dated 20‑4‑2001 of the High Court of Balochistan Bench at Sibi, passed in Criminal Appeal No.(S)91/2000 and Criminal Revision No.(S)32/2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑S. 302(b)‑‑‑Appraisal of evidence‑‑‑Old enmity existed between the parties due to an incident in which the leg of the accused had been fractured and he had a grievance against the complainant and the deceased, in such circumstances it was not believable that the deceased would accompany the accused on the pretext of getting him employed‑‑‑Presence of the deceased, a stranger, in the house of accused in the night hours was, however, a sufficient extenuating circumstance in favour of accused‑‑‑Conviction of accused was, therefore, upheld; but his sentence of death was altered to imprisonment for life in circumstances.

Abdus Samad v. The State PLD 1964 SC 167; Khurshid v. The State PLD 1996 SC 305 and Muhammad Akram Khan v. The State PLD 2001 SC 96) ref.

Muhammad Salahuddin Mengal, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents.

Date of hearing: 8th October, 2002.

P L D 2003 Supreme Court 31

Present: Iftikhar Muhammad Chaudhry, Sardar Muhammad Raza Khan and

Falak Sher, JJ

MAQSOOD AHMAD and others‑‑‑Appellants

Versus

SALMAN ALI ‑‑‑ Respondent

Civil Appeals Nos.751 and 752 of 2000, decided on 30th October, 2002.

(On appeal from the judgment/order dated 3‑S‑2000 passed by Lahore High Court, Lahore in R.F.A. Nos. 210 and 211 of 1999).

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 17 & 79‑‑‑Proof of execution of document‑‑Competence and number of witnesses‑‑‑‑Registered power of attorney‑Document had bestowed authority on the attorney on behalf of the principal to deal with the affairs of his land including selling the same meaning thereby that as an Agent he would also be responsible to watch the financial interest of the Principal while exercising powers on his behalf‑‑‑Attorney owed future obligations to his Principal in respect of his immovable property‑‑‑Whenever a document is executed conferring authority on the Agent to deal with financial matters of the property on behalf of the Principal and also making him responsible for future obligations either to the Principal in respect of the affairs of his property or with a third person with whom he was dealing on behalf of the Principal, the document squarely fell within the categories of the instruments which were required to be attested by two then or one man or two women in terms of Art. 17(2)(a) of the Qanun‑e‑Shahadat, 1984 and before a Court of law the contents of document were required to be proved as per methodology of Art.79 of Qanun‑e‑Shahadat 1984.

(b) Registration Art (XVI of 1908)‑‑‑

‑‑‑‑S. 33‑‑‑Power of Attorney‑‑‑Recognition‑‑‑Power of attorney executed through Local Commissioner‑‑‑Conditions enumerated in S. 33 Registration Act, 1908.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑­

‑‑‑‑Arts. 79 & 117‑‑‑Power of attorney‑‑‑Proof of execution document‑‑­Onus‑‑‑Onus to prove that the document was a valid one was upon the Agent as he had asserted that on the basis of the power of attorney property Owned by the Principal had been legally transferred by him in the name of his brother‑‑‑Failure of attorney to discharge his burden as per Art. 117 of the Qanun‑e‑Shahadat, 1984‑‑‑High Court rightly interfered in the judgment of Lower Court.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Precedent‑‑‑Order refusing grant of leave to appeal has persuasive value but observations made therein have no binding force on the larger Bench of the Supreme Court.

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 17(2)(a)‑‑‑Power of attorney‑‑‑Competence and number of witnesses‑‑‑Registered power of attorney having been executed to deal with financial and future obligations of the Principal, attestation of instrument by two witnesses under Art.17(2)(a), Qanun‑e‑Shahdat, 1984 was mandatory.

Saifullah Khan and another v. Javed Iqbal and another 1997 SCMR 1210 ref.

(f) Contract Art (IX of 1872)‑‑‑

‑‑‑‑Ss. 211 & 215‑‑‑Power of attorney‑‑‑Agent's duty in conducting Principal's business‑‑‑Consent of Principal, when necessary‑‑‑Agent, in the ;resent case, had been authorised to deal with the affairs of the property including the financial powers and if he wanted to transfer the land in respect whereof Principal had allegedly appointed him as attorney to deal with his property, it was incumbent upon him to have sought prior approval of the Principal before transferring the land in the name of his brother being the close relative of the attorney, in order to make the transaction a valid one in terms of S.211 read with S.215, Contract Act, 1872.

(g) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.2(h)‑‑‑Power of attorney'‑‑Oral agreement by Agent‑‑‑Person entering into oral agreement with the Agent had to prove the oral agreement according to the definition of agreement under S.2(h), Contract Act, 1872.

(h) Power of attorney‑‑‑

‑‑‑‑ Where it is alleged that attorney has committed a fraud in transferring the property of the Principal in the name of his close relative, the Court must construe the power of attorney strictly and examine the matter thoroughly following the principle of administration of justice to ensure that the person Who has executed power of attorney in favour of his Agent is not deprived of his rights including the financial matters arising out of the transactions which re carried out by the attorney on his behalf and also to examine whether the attorney holder has fulfilled his future obligations towards his Principal or not.

Fida Muhammad v. Pir Muhammad Khan through Legal Heirs and others PLD 1985 SC 341 and Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and others PLD 2002 SC 71 ref.

Mr. Alamgir, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Appellants.(in both Cases).

Taqi Ahmad Khan, Advocate Supreme Court and Ch. Medhi Khan Mehtab, Advocate‑on‑Record (absent) (in both Appeals).

Dates of hearing: 29th and 30th October, 2002.

P L D 2003 Supreme Court 40

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Falak Sher, JJ

IMTIAZ AHMAD MAHMOOD‑‑‑Appellant

Versus

FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, ISLAMABAD through Chairman and another‑‑Respondents

Civil Appeal No.660 of 2001, decided on 31st October, 2002.

(On appeal from the judgment dated 22‑3‑2000 of the Federal Service Tribunal, Islamabad passed in Appeal No. 847(R) of 1998).

(a) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 4 & 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal‑‑­Service Tribunal‑‑‑Jurisdiction‑‑‑Scope‑‑‑Service Tribunal while dismissing the appeal as withdrawn made an observation to the effect that "if any Court had passed any judgment in respect of terms and conditions of service of a civil servant or deemed to be a civil servant after 10‑6‑1997 (the date of insertion of S.2‑A in the Service Tribunals Act, 1973) the same was void and of no legal effect‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider, inter alia, as to whether Service Tribunal had the authority to make any observation declaring a Civil Court's decree to be void particularly ­when the appellant before the Tribunal had withdrawn the appeal unconditionally.

(b) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss.4 & 2‑A‑‑‑Appeal to Service Tribunal‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Service Tribunal, while dealing with the terms and conditions of civil servant in appeal, can only uphold or set aside an order passed by a Departmental Authority and no more and no less‑‑‑Service Tribunal cannot sit in appeal against the judgment of a Civil Court which is not only of a Court of general jurisdiction but has its own hierarchy ascending right up to the Supreme Court‑‑‑Principles.

(c) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss.4 & 2‑A‑‑‑Appeal to Service Tribunal‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Service Tribunal while dismissing appeal of civil servant as withdrawn made an observation to the effect that "if any Court had passed any judgment in respect of terms and conditions of service of a civil servant or deemed to be a civil servant after 10‑6‑1997 (the date of insertion of S. 2A in the Service Tribunals Act, 1973) the same was void and of no legal effect‑‑‑Validity‑‑‑Held, observations made by the Service Tribunal against he judgment of Civil Court were not sustainable at all.

(d) Words and phrases‑‑‑

‑‑‑‑ Void order" or "order without jurisdiction"‑‑‑Connotation‑‑‑Both the terms have their own independent entities and entail different consequences.

Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC 147; Conforce Ltd. v. Syed Ali and others PLD 1977 SC 599 and Sharif Ahmad Hashmi v. Chairman Screening Committee, Lahore 1978 SCMR 367 ref.

(e) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 4 & 2A‑‑‑Appeal‑‑‑Jurisdiction of Service Tribunal ‑‑‑Scope‑‑­Appellant, in the present case, on the date of final order passed by the Departmental Authority, was not a civil servant and thus. could not resort to she Service Tribunal and the only forum available to him was the Civil Court of general jurisdiction and thus he filed a civil suit on 13‑3‑1995, more than two years prior to the insertion of S.2‑A in the Service Tribunals Act, 1973‑‑‑Civil Court was not only competent to heap the matter on 13‑3‑1995 but remained competent during the continuation of trial for more than two years‑‑‑Civil Court, advertently or inadvertently, passed a decree on 30‑6‑1997 with a strong impression that Civil Court still was vested with the jurisdiction which it carried for so long‑‑‑Validity‑‑‑Held, decree passed by the Civil Court, on 30‑6‑1997 was not void but without jurisdiction and a decree passed without jurisdiction was to be challenged before the higher Appellate Authority provided in the same hierarchy ‑‑‑Respondent ­Department had rightly gone in appeal before the District Judge on 30‑7‑1997; had the appeal been pursued and had all the legal implications been brought to the notice of the Appellate Court, the same would certainly have set aside the original decree but the respondent withdrew the appeal unconditionally on 7‑10‑1998 in the Appellate Court‑‑‑Whenever an appeal is withdrawn simpliciter that has the effect of restoring the status quo ante and the position in the present case, remained "as if the appeal had not been filed" ‑‑‑Withdrawal of appeal by itself could not operate upon the dismissal of original suit because the original suit was that of the respondent therein‑‑­Had the appeal been left intact, the Appellate Court might have directed the transfer of suit to the Service Tribunal‑‑‑Very entertainment of the appeal by Service Tribunal was void, withdrawal of appeal by the Department before Appellate Civil Court was a serious mistake and the decree dated 30‑6‑1997 though being without jurisdiction yet was not set aside in appeal and thus held the field and had become final in circumstances.

(f) Service Tribunals Act (LXX of 1973)‑‑

‑‑‑‑Ss. 6 & 2‑A‑‑‑Pending cases‑Maxim: "Ubi jus ibi remedium" (where there is a right, there is always a remedy)‑Applicability‑‑‑Provision of S.6, Service Tribunals Act, 1973 had not become redundant six months after the promulgation of the Service Tribunals Act, 1973 because if it was so interpreted anyone declared to be a civil servant thereafter would have no forum at all to resort to‑‑‑With the insertion of S.2‑A in the Service Tribunals Act, 1973 and with the declaration of all concerned employees as civil servants, Service Tribunal automatically got established as appropriate Tribunal within the meaning of proviso to. S.6, Service Tribunals Act, 1973 which dealt with the pending cases.

(g) Service Tribunals Act (LXX of 1973)‑‑

‑‑‑‑S. 2‑A‑‑‑Civil servant who has already filed a suit, appeal or application before any forum would be entitled to resort to the Service Tribunal within 90 days of the establishment of appropriate Tribunal for him after the insertion of S.2‑A in the Service Tribunals Act, 1973.

(h) Maxim‑‑

‑‑‑‑"Ubi jus ibi remedium"‑‑‑Applicability.

Kh. Muhammad Farooq, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellant.

Agha Tariq Mahmood, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents.

Date of hearing: 23rd September, 2002.

P L D 2003 Supreme Court 46

Present: Sh. Riaz Ahmed, C. J., Mian Muhammad Ajmal and Muhammad Nawaz

Abbasi, JJ

Mir MUNAWAR ALI TALPUR‑‑‑Appellant

Versus

STATE through Chief Ehtesab Commissioner, Islamabad and 2

others‑‑‑Respondents

Criminal Appeal No.279 of 1998, decided on 31st October, 2002.

(On appeal from the judgment of High Court of Sindh, dated 11‑11‑1998 passed in E. R. 11 of 1997).

(a) Ehtesab Act (IX of 1997)‑--‑

‑‑‑‑S. 8‑‑‑Presumption against holder of public office accepting illegal gratification‑‑‑Prerequisite‑‑‑For raising the presumption of guilt at the first instance the essential elements of mens rea and intention to commit the crime must be established and then the criminal liability has to be proved through positive evidence.

(b) Ehtesab Act (IX of 1997)‑‑‑

‑‑‑‑Ss. 3 & 8‑‑Appraisal of evidence‑‑‑Basic elements of mens rea and intention to commit the crime as required by section 8 of the Ehtesab Act, 1997, for raising the presumption of guilt, were not available to suggest criminal liability of the accused in the transaction‑‑‑Prosecution had failed to bring on record any evidence in proof of the initial burden of personal interest or financial gain of the accused or abuse of authority by him in the matter to raise a legitimate presumption of guilt‑‑‑Mere fact that the proposal of re‑auction made by the Secretary, Local Government and Rural Development Department, Government of Sindh, was not accepted by the Minister (accused) was not a valid ground to raise such a presumption under S.8 of the Ehtesab Act, 1997‑‑‑According to prosecution itself, neither anyone had participated in the auction nor made an offer even through negotiation above the offer of Ra.20,00,000 for which contract had been given, which would evidently prove the bona fides of the accused Minister who while keeping in view the recommendations of the Town Officer and the Director, Local Government, had approved the contract‑‑‑Visualizing the situation in the light of the facts in the background, it could safely be concluded that the criminal law was set in motion against the accused due to the conflict of opinion with the Secretary‑‑‑Mere violation of procedural rules, if any, would not constitute an offence of corruption and corrupt practices under the Ehtesab Act, 1997 without establishing the criminal intent‑‑Failure of the prosecution to rebut the presumption of innocence of the accused through any direct or circumstantial evidence Would create reasonable doubt in his favour to suggest that the contract had been approved by him in good faith and free from any personal interest or any other consideration ‑‑‑Accused was acquitted in circumstances.

Azizullah Sheikh Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Appellant.

Raja Muhammad Irshad, Dy. A.‑G. Pak. for the State.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for NAB.

Date of hearing: 17th September, 2002.

P L D 2003 Supreme Court 56

Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Muhammad Nawaz

Abbasi, JJ

VIJANT KUMAR and 4 others‑‑‑Appellants

Versus

STATE through Chief Ehtesab Commissioner, Islamabad and others‑‑‑Respondents

Criminal Appeals No.276 and 280 of 1998, decided on 31st October, 2002.

(On appeal from the judgment of High Court of Sindh, dated 13‑11‑1998, passed in E. R. No. 15 of 1997).

(a) Criminal trial‑‑‑

‑‑‑‑ Burden of proof‑‑‑Initial onus of proving the charge is always on the prosecution and it shifts to the accused only in a special situation.

(b) Ehtesab Act (IX of 1997)‑‑‑

‑‑‑‑Ss. 8/3‑‑‑Presumption against accused‑‑‑Presumption of guilt can only be raised in a case in which prosecution has proved that the accused has accepted, or obtained or agreed to accept and obtain for himself or for any other person any gratification other than legal remuneration‑‑‑Use of word "proved" cannot be equated with mere suspicion to raise the presumption of guilt.

(c) Ehtesab Act (IX of 1997)‑‑‑

‑‑‑‑Ss. 3/4 & 8‑‑‑Appraisal of evidence‑‑‑Prosecution had failed to prove even the basic element of mens rea and intention to commit the crime against the accused in order to raise the presumption of guilt against him‑‑‑Court before raising a presumption of guilt to fix the criminal liability must ensure itself that the initial burden of proving the charge by the prosecution was satisfactorily discharged‑‑‑No material evidence had been brought on record in support of personal gain or interest of the accused Minister to raise a ligitimate presumption that the contract was granted for some personal consideration‑‑‑Trial Court keeping in view the grant of contract through negotiations for less amount to that of upset price had raised a presumption of guilt without taking notice of the important fact that no one had turned up in the auction to make an offer even equal to the estimated upset price what to speak of the higher offer‑‑‑Estimated upset price, therefore, was not relevant to calculate the loss‑‑‑Accused under the advice of the Secretary, Local Government and Rural Development had approved the contract in good faith without any personal interest or financial gain‑‑‑Failure of the Administrator of the local body and the said Secretary to discharge their duty of tendering the proper advice would make them equally responsible for the loss, if any, but none of them was either arrayed as accused in the Reference or examined as a witness to establish that the Minister either acted against their advice or the grant of contract through negotiation was made for some extraneous consideration‑‑‑Approval accorded by the Minister 6% above the contractual amount of last year, had rather shown his bona fides‑‑‑Accused were acquitted in circumstances.

Fakharuddin G. Ebrahim, Senior Advocate Supreme Court and Naraindas C. Motiani, Advocate‑on‑Record (absent) for Appellants (in Criminal Appeal No.276 of 1998).

Raja Muhammad Irshad, Dy. A.‑G. Pak. for the State (in Criminal Appeal No.276 of 1998). .

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for NAB (in Criminal Appeal No.276 of 1998).

Azizullah Shiekh, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Appellant (in Criminal Appeal No.280 of 1998).

Raja Muhammad Irshad, Dr. A.‑G. Pak. for the State (in Criminal Appeal No.280 of 1998).

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for NAB (in Crl. Appeal No.280 of 1998).

Date of hearing: 17th September, 2002.

P L D 2003 Supreme Court 70

Present: Syed Deedar Hussain Shah, Khalil‑ur‑Rehman Ramday and Faqir

Muhammad Khokhar, JJ

STATE through the Advocate‑General, N.‑W.F.P., Peshawar‑‑‑Appellant

Versus

SHAH JEHAN‑‑‑Respondent

Criminal Appeals Nos.361 and 362 of 1994; decided on 21st October, 2002.

(On appeal from the judgment of the Peshawar High Court, Bench at D.I. Khan, dated 16‑10‑1993, passed in Criminal Appeal No.7 and Murder Reference No. 1 of 1993).

(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 the State to examine whether High Court was legally justified in extending the benefit of doubt to the accused in absence of any doubt about his mis-identity and in view of the ocular evidence being supported by medical evidence, motive, retracted confession and other circumstantial evidence.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Appeal against acquittal‑‑‑Three hours' unexplained delay in lodging the F.I.R. showed that it was lodged after preliminary investigation, deliberation and consultation and that the complainant was called from his village situate at a distance of three miles‑‑‑Retracted judicial confession of accused was not in conformity with the ocular evidence with regard to the time and circumstances of the occurrence and it was also not in consonance with medical. evidence especially about the number of shots fired at the deceased and was not corroborated by material particulars‑‑‑Recovery of the weapon of offence was neither made at the instance of accused nor in his presence‑‑‑Acquittal of accused by High Court was not, based on any misreading or non‑reading of the material evidence or misconstruction of law‑‑‑Appeal was dismissed in circumstances.

Ch. Akhtar Ali, Advocate‑on‑Record for Appellant (in Criminal Appeal No.361 of 1994).

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Respondent No. 1. (in Criminal Appeal No. 361 of 1994).

Ch. Akhtar Ali, Advocate‑on‑Record for Appellant (in Criminal Appeal No.362 of 1994).

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Respondent No. 1 (in Criminal Appeal No.362 of 1994).

Dated of hearing: 21st October, 2002.

P L D 2003 Supreme Court 74

Present: Sh. Riaz Ahmed, C.J., Munir A. Sheikh, Nazim Hussain Siddiqui, Iftikhar

Muhammad Chaudhry and Qazi Muhammad Farooq, JJ

WATAN PARTY through Punjab President Ladies Wing Tasneem Shaukat

Khan‑‑‑Petitioner

Versus

CHIEF EXECUTIVE/PRESIDENT OF PAKISTAN, and another‑‑‑Respondents

Constitutional Petition No.36 of 2002, decided on 7th October, 2002.

(a) Legal Framework Order (24 of 2002)‑‑‑

‑‑‑‑‑Art. 3 & Sched.‑‑‑Constitution of Pakistan (1973), Arts. 184(3) & 239‑‑­Consitutitional petition before the Supreme Court under Art. 184(3) of the Constitution‑‑‑Contentions of the petitioner, inter alia, were that the amendments made in the Constitution of Pakistan (1973) through the Schedule to the Legal Framework Order, 2002 be set aside on the ground of being illegal and unconstitutional and that the Legal Framework Order, 2002 violated the judgment of Supreme Court in Syed Zafar Ali Shah PLD 2000 SC 869‑‑‑Validity‑‑‑Held, Supreme Court in Syed Zafar Ali Shah's case PLD 2000 SC 869 had validated the extra Constitutional step on the touchstone of the Doctrine of State Necessity and the principle of salus populi est suprema lex and had come to the conclusion that sufficient corroborative and confirmatory material existed to justify the intervention by the Armed Forces through extra‑Constitutional treasure‑‑‑Supreme Court, while validating. the extra‑Constitutional step declared that the Constitution of Pakistan (1973), remained the supreme law of the land subject to the condition that certain parts thereof had been held in abeyance on account of the State Necessity and General Parvez Musharraf, Chief of Army Staff/Chairman, Joint Chiefs of Staff Committee, described as Chief Executive, was entitled to perform all such acts and promulgate all legislative measures namely "all acts and legislative measures, which were in accordance with or could have been made under the Constitution of Pakistan (1973) including the power to amend it"; restriction was, however, placed upon the power to amend the Constitution to the effect that it could be resorted to only if the Constitution failed to provide a solution for attainment of the declared objectives of the Chief Executive and the power was controlled by the criteria that "all acts which tend to advance the good of people, all acts required to be done for, the ordinary orderly running of the State and all such measures as would establish or would lead to the establishment of the declared objectives of the Chief Executive" ‑‑‑Procedure to amend the Constitution as enshrined in Art.239, Part XI of the Constitution remained unaltered and the Parliament retained the same power to amend the Constitution as it had before the promulgation of the Legal Framework Order, 2002‑‑‑Parliament and not the Supreme Court was the appropriate forum to consider all these amendments by the Legal Framework Order, 2002‑‑‑Constitutional petition was dismissed in circumstances.

Syed Zafar Ali Shah v. General Pervez Musharraf PLD 2000 SC 869; Begum Nusrat Bhutto's case PLD 1977 SC 657 and Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426 ref.

(b) Legal Framework Order (24 of 2002)‑‑‑

‑‑‑‑Art. 3 & Sched.‑‑‑Constitution of Pakistan (1973), Art.183(4)‑‑­Constitutional petition before the Supreme Court under Art.184(3) of the Constitution ‑‑‑Vires of Legal Framework Order, 2002‑‑‑Locus standi and bona fides of the petitioner to invoke the jurisdiction of the Supreme Court under Art. 184(3) of the Constitution‑‑‑Question of public importance‑‑­Concept‑‑‑Question raised before the Supreme Court in a petition under Art. 184(3) of the Constitution must be one of public importance with reference to the enforcement of Fundamental Rights contained in Chap. 1, Part II of the Constitution and the person desiring to invoke the jurisdiction of Supreme Court under Art. 184(3) of the Constitution need not necessarily be an aggrieved person, nevertheless the person approaching Supreme Court under Art. 184(3) had to demonstrate that the question raised concerned the public at large‑‑‑Principles.

The question raised before the Supreme Court under Article 184(3) of the Constitution must be one of public importance with reference to the enforcement of Fundamental Rights contained in Chapter 1, Part II of the Constitution. The person desiring to invoke the jurisdiction of Supreme Court under Article 184(3) of the Constitution need not necessarily be an aggrieved person, nevertheless the person approaching Supreme Court under the aforesaid provision has to demonstrate that the question raised concerns the public at large.

The issues arising in a case, cannot be considered as a question of public importance if the decision of the issues affects only the rights of an individual or a group of individuals. The issue in, order to assume the character of public importance, must be such that its decision affects the rights and liberties of people at large. The adjective "public" necessarily implies a thing belonging to people at large, the nation, the State or a community as a whole. Therefore, if a controversy is raised in which only a particular group of people is interested and the body of the people as a whole or the entire community has no interest, it cannot be treated as a case of public importance.

Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66: Miss Benazir Bhutto's case PLD 1988 SC 416; Asad Ali's case PLD 1998 SC 161 and Zulfqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793 ref.

Zafarullah Khan, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Petitioner.

Makhdoom Ali Khan, Attorney‑General for Pakistan assisted by Dr. Danishwar Malik, Deputy Attorney‑General for Pakistan and M.S. Khattak, Advocate‑on‑Record (on Court's Notice).

Syed Sharifuddin Pirzada. Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for the Federation.

Date of haring: 7th October, 2002.

P L D 2003 Supreme Court 82

Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq, Mian Muhammad Ajmal, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

SUPREME COURT BAR ASSOCIATION OF PAKISTAN‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Civil Review Petition No. 103 of 2002 in Constitutional Petition No. 1 of 2002, decided on 28th October, 2002.

(On review from the order dated 10‑4‑2002 of this Court passed in Constitutional Petition No. 1 of 2002).

(a) Constitution of Pakistan (1973)‑‑

‑‑‑‑Arts. 204 & 188‑‑‑Supreme Court Rules, 1980, Os. XXVI & XXVII‑‑­Oath of Office (Judges) Order (10 of 1999), Art.3‑‑‑Contempt of Court‑‑­Review petition‑‑‑Application was submitted before the Court under caption "Statement at the Bar" wherein a reference had been made by the petitioner to a Resolution of the Supreme Court Bar Association and the Pakistan Bar Council claiming to be the apex representative bodies of the lawyers, inter alia, asserting that petitioner with a heavy heart declined to argue the Review Petition‑‑‑Contents of the application using disparaging remarks about the judiciary through the language which could not have been expected from the pen of the President, Supreme Court Bar Association constituted gross contempt of the Supreme Court and making of such attempts on the part of Members of the Bar amounted to abuse of the sacred elected office also‑‑‑Supreme Court observed that some Members of the Bar motivated by malice, extraneous considerations and for political reasons or ill‑will make irresponsible statements, to tarnish the image of the judiciary which was not at all in the Supreme National interest‑‑‑While reserving the right to take the proper action and proceed against the contemner (applicant) at an appropriate stage, Supreme Court deprecated and condemned the attitude of the applicant (President Supreme Court Bar Association) and considering the contents of the application scandalous, malicious and irrelevant ordered that para­graph (i) & (ii) thereof be struck off‑‑‑Supreme Court further remarked that administration of system of justice rested upon the cooperation between judiciary and the members of the Bar both being necessary limbs of the system and Court had highest respect for the Bar and particularly for those Members who show respect to the Judiciary‑‑‑Applicant knowing fully well the consequence of the review petition had deliberately declined to argue the case motivated by malice, ill‑will and extraneous considerations‑‑‑Supreme Court remarked that it was high time the counsel like the applicant and members of the Bar should realize their responsibilities towards the Courts and society as a whole because they hail from the legal profession which seeks redress of the grievances of the aggrieved persons from the Courts.

(b) Oath of Office (Judges) Order (10 of 1999)‑‑‑

‑‑‑‑Art. 3‑‑‑Oath of Judges‑‑‑Judges of the superior Courts had taken oath under the Oath of Office (Judges) Order, 1999 and thus saved the independence of judiciary as well as ‑the system of administration of justice by preserving the Bar as well; failing which the Courts would have been replaced by altogether a new system unknown to a civilized society.

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

‑‑‑‑Art. 204‑‑‑Supreme Court Rules, 1980 O.XXVI‑‑‑Review of Supreme Court Judgment‑‑‑Scope‑‑‑Supreme Court does not allow the rehearing of the matter under the garb of review.

Hamid Khan Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 28th October, 2002.

P L D 2003 Supreme Court 86

Present: Qazi Muhammad Farooq and Syed Deedar Hussain Shah, JJ

PRINCIPAL, GOVERNMENT GIRLS COLLEGE, THANA MALAKAND

AGENCY (NOW AT SAIDU SHARIF SWAT) and 3 others‑‑‑Appellants

Versus

Mrs. BILQUIS BEGUM‑‑‑Respondent

Civil Appeal No.661 of 1997, decided on 18th October, 2002.

On appeal from judgment dated 10‑3‑1996, passed by the N.‑W.F.P. Service Tribunal, Peshawar, in Appeal No.526 of 1995).

(a) North‑West Frontier Province Service Tribunals Act (I of 1974)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider the contention of the Authorities that in spite of proper counselling and advice, the civil servant failed to improve her adverse behaviour, therefore, adverse entries were made in the Annual Confidential Report of the civil servant and in absence of any mala fides attributed to the Reporting Officer or to the Countersigning Officer, the Tribunal's order that the entries in the Annual Confidential Report be expunged was in excess of jurisdiction.

(b) North‑West Frontier Province Service Tribunals Act (I of 1974)‑‑‑

‑‑‑‑S. 4‑‑‑Adverse remarks in Annual Confidential Report, expunction of‑‑­Civil servant being aggrieved of the adverse remarks, filed appeal before Service Tribunal for expunction of the same‑‑‑Overall performance of the civil servant had been appreciable as she had performed her duties to the best of her ability which was reflected from her attendance in the relevant register of the college as well as the result of the students who passed the relevant subjects‑‑‑Performance of the civil servant was supported by documentary evidence on the record of Service Tribunal‑‑‑Annual Confidential Reports Were recorded against the civil servant for the year, 1994, whereas subsequently she was promoted‑‑‑Service Tribunal after going through the available record allowed the appeal of the civil servant and adverse entries in the record were expunged‑‑‑Validity‑‑‑Judgment passed by the Service Tribunal was based on the principles of fair-play, equity and justice which was not open to exception‑‑‑Supreme Court declined to interfere with the judgment passed by the Service Tribunal‑‑‑Appeal was dismissed.

Sardar Shaukat Hayat, Addl. A.‑G., N.‑W.F.P. for Appellants.

M. Zahobr Qureshi, Advocate‑on‑Record for Respondent:

Date of hearing: 18th October, 2002.

P L D 2003 Supreme Court 90

Present: Mian Muhammad Ajmal, Muhammad Nawaz Abbasi and Karamat Nazir

Bhandari, JJ

MASOODA BEGUM through Legal Heirs---Appellant

Versus

GOVERNMENT OF PUNJAB through Secretary Forest, Lahore and 9

others---Respondents

Civil Appeal No.215 of 1999, decided on 5th November, 2002.

(a) Rehabilitation and Settlement Scheme-

---- Para. 4---Allotment of evacuee land made prior to 27-2-1965 was not liable to be cancelled in terms of para 4, Rehabilitation and Settlement Scheme under the directive of Chief Settlement Commissioner dated 27-2-1965---Rights of allottees of the land prior to 27-2-1965 were protected and conclusively determined.

1991 SCMR 1426 ref.

(b) Administration of justice-

---- Judicial determination of dispute relating exclusively to the rights of the parties in proceedings---Scope and status---Same shall be binding only inter se parties but if the verdict given in the judicial determination relates to the declaration of law, it shall not be confined to the parties but all shall be benefited and thus the law declared through a judgment would be applicable to all aggrieved persons even if some of them were not party in the proceedings in which the judgment was passed---Such declaration of law, however, shall have no retrospective effect to be used to reopen the matter finally concluded and the cases in which the decisions have attained finality---An action in which claim of ownership was made against all, the judgment pronounced in such action, would be applicable to all but if the action was brought against a particular person, same would be binding only on such person.

Pir Bakhsh v. Chairman, Allotment of Committee PLD 1987 SC 145 and Province of Punjab v. Muhammad Mahmood 1991 SCMR 1426 ref.

(c) Constitution of Pakistan (1973)--

----Art. 199---Rehabilitation and Settlement Scheme, para. 4---Constitutional petition ---Laches---Allotment of land---Title of property---In the absence of any declaration of law made in a judgment, a person may not be able to protect his title in the property on the basis of said judgment but if the right of a person in property is pr9tected by the law declared in an earlier judgment, such person cannot be non-suited and deprived of his right in the property merely on the ground of laches---Dismissal of Constitutional petition in given circumstances, on ground of laches, would amount to deprive the petitioners from their rights already recognized in law.

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

----Art. 199---Constitutional petition ---Laches---Scope---No hard and fast rule can be laid down for application of the principle of laches---Bar of laches cannot be equated with statutory bar of limitation ---Laches operate in equity and in case of laches, the dictates of justice and equity are to be weighed as the legitimate rights cannot be denied on the ground of laches unless it is found that same will cause injustice to the opposite-party but a person can be non-suited on the basis of laches if due to his negligence, rights were created in favour of opposite-party---Order affecting the rights of a person besides being illegal if also found unjust and improper, then notwithstanding the laches, can be set aside by the High Court in Constitutional jurisdiction as the injustice cannot be allowed to be perpetuated on the technical grounds---Non-suiting a person in discretionary jurisdiction in a Constitutional petition merely on the ground of laches without determining the nature of his right may cause injustice to him. therefore, the discretion should not be exercised by the in-justice in aid of injustice and it should examine the dictates of justice in case of each party in addition to the examination of law and the question of jurisdiction as an obligation---Judgment of High Court in the present case, did not demonstrate that the relief sought by the appellants, if granted to them, would be an action in aid of injustice---Case of appellants being not distinguishable from that of the petitioners in another Constitutional petition on merits, the refusal of same relief to them by dismissing .their Constitutional petition on the ground of laches would amount to defeating the concept of equitable justice on technical ground.

Ardeshir Cowasjee v. Multiline Associates PLD 1993 Kar. 237 and Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 ref.

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

----Art. 199---Constitutional jurisdiction of High Court ---Scope---Laches--­Void order---Constitutional petition can be dismissed even against a void order on the ground of laches but this rule cannot be applied in every case as a mandatory rule.

Azad Government of the State of J&K and others v. Ch. Muhammad Din 1995 MLD 1350 distinguished.

(f) Land acquisition-

---- Public purpose---Evacuee property---If land was required by the Government for defence or for any public purpose, there was no bar for its acquisition under the law---Government, if was in need of land for use of public purpose, it could still acquire the same in accordance with law.

Ch. Muhammad Nawaz Selehria, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Respondents Nos. 1 and 2.

Nemo for Respondents Nos. 6 to 10.

Date of hearing: 11th September, 2002.

P L D 2003 Supreme Court 102

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

MUHAMMAD GULSHAN KHAN‑‑‑Petitioner

Versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and

others‑‑‑Respondents

Civil Petition for Leave to Appeal No.2680 of 2001, decided on 23rd September, 2002.

(On appeal from the judgment dated 7‑7‑2001 of the Federal Service Tribunal, Islamabad, passed in Appeal No.426‑RCS/2000).

(a) Civil service‑

‑‑‑ Civil servant was non‑suited on the ground that his appeal was hit by the principle of res judicata‑‑‑Record showed that civil servant was firstly bypassed by the Promotion Committee without any reason while promoting the other civil servants out of turn in clear violation of law and rules but he was promoted after the judgment of the Supreme Court in his favour‑‑‑Promotion Committee, subsequent to the said judgment of the Supreme Court convened its meeting and promoted the civil servant vide notification dated 22‑5‑1999‑‑‑Seniority list issued thereafter showed the civil servant at S.No.38 while the other civil servants who were promoted out of turn by the Committee were shown at S.Nos.4 & 6 being much senior‑‑‑Question of seniority of civil servant was not at all considered by any forum after the notification dated 22‑5‑1999 promoting the civil servant‑‑‑Held, it was not understandable as to how the Service Tribunal had dismissed the civil servant's appeal on the issue of seniority on the ground of res judicata as such issue of giving him seniority at the appropriate place cropped up after his due promotion in 1999‑‑‑Courts were duty bound to decide the cases on merits in accordance with law and the rules‑‑‑Courts, while dispensing justice, were duty bound to apply the provisions of law in their true perspective and application of the same could not be avoided simply on the ground that the said provisions of law were not brought to their notice by the parties‑‑‑Judge must know the adage that a Judge must wear all laws of the country on the sleeves of his robe and failure of the counsel to properly advise him was not a complete excuse in the matter‑‑­Civil servant, who had unblemished record, therefore, should not suffer for the commission of illegalities by the earlier Promotion Committee which did not consider his case for promotion in spite of the fact that he was admittedly senior to those who were promoted out of turn‑‑‑Civil servant, in circumstances, could not be kept junior to the persons who were promoted out of turn in the seniority list.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Mst. Salma Afroze and 2 others PLU 1992 SC 263; Muhammad Sarwar v. The State PLD 1969 SC 278 and Kabir Ahmed Khan v. Government of Punjab 1990 SCMR 1417 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ Courts were duty bound to decide the cases on merits in accordance with law and the rules‑‑‑Courts, while dispensing justice, were duty bound to apply the provisions of law in their true perspective and application of the same could not be avoided simply on the ground that the said provisions of law were not brought to their notice by the parties‑‑‑Judge must know the adage that a Judge must wear all laws of the country on the sleeves of his robe and failure of the counsel to properly advise him was not a complete excuse in the matter.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263; Muhammad Sarwar v. The State PLD 1969 SC 278 and Kabir Ahmed Khan v. Government of Punjab 1990 SCMR 1417 ref.

(c) Civil service‑‑‑

‑‑‑‑Promotion‑‑‑Condition‑‑‑Civil servant on his promotion would rank senior in the seniority list with effect from the date when the persons junior to him were promoted unless he was earlier superseded‑‑‑Civil servant, in the present case, was senior to other civil servants who were promoted by the Promotion Committee without considering his case and without advancing any reason and against all canons of justice‑‑‑No reason whatsoever existed for not considering the civil servant for promotion at that juncture when his juniors were considered for the same‑‑‑Failure on the part of the Department to consider the civil servant for promotion had caused an illegality which took quite some tithe to be cured‑‑‑Held, civil servant, in circumstances, could not be kept junior in the seniority list to the ones who were promoted out of turn.

Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263; Muhammad Sarwar v. The State PLD 1969 SC 278 and Kabir Ahmed Khan v. Government of Punjab 1990 SCMR 1417 ref.

Sardar Muhammad Ghazi, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Hafiz S.A. Rehman, Dy. Attorney‑General for Respondents Nos. 1 to 3.

Haji Shaukat Mehmood (present in person) for Respondent No.4.

Date of hearing: 23rd September, 2002.

P L D 2003 Supreme Court 110

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

GOVERNMENT OF PAKISTAN through Establishment Division, Islamabad and 7

others‑‑‑Appellants

Versus

HAMEED AKHTAR NIAZI, ACADEMY OF ADMINISTRATIVE, WALTON

TRAINING, LAHORE and others‑‑‑Respondents

Civil Appeals Nos. 1599 to 1606 of 1999, decided on 11th October, 2002.

(On appeal from the judgment dated 7‑12‑1998 of Federal Service Tribunal, Islamabad passed in Appeal No. 124(L) of 1980).

(a) Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S.9‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Promotion‑‑‑Selection post and non‑selection post‑‑‑Criterion for promotion‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Criterion for promotion in case of selection post is merit, while in case of non‑selection post it is on the basis of seniority­-cum‑fitness‑‑‑Criterion for selection for promotion to the higher grade rests upon decision of the Competent Authority‑‑‑No other forum/Authority can assume the duties, which specifically have been assigned to the Competent authority‑‑‑Seniority is one of the factors, which is considered for promotion, but seniority alone is not enough‑‑‑Promotion is not automatic but it depends on many other factors, such as, competence, availability of post and antecedents etc. and none of the said factors is less important than seniority and for promotion all these factors, on case‑to‑case basis, are to be considered‑‑‑Benefit of promotion, on the basis of improved seniority, as a matter of right in selection grade, cannot be claimed nor the Service Tribunal in appeal is competent to grant the same from back date, as the same is explicitly beyond its jurisdiction‑‑‑Requirements for promotion having not been examined by the Competent Authority at the relevant time, promotion could not be granted by the Service Tribunal‑‑‑Civil servant cannot ask for promotion as a right, and granting or refusal of promotion is a matter, which is within the exclusive domain of the Government/Executive Authority‑‑‑If promotion is denied to a civil servant it could not be termed as denial of any fundamental right.

Muhammad Umer Malik v. Federal Service Tribunal and others PLD 1987 SC 172; Muhammad Saleem Bhatti v. Secretary to Government of the Punjab, Agriculture Department, Lahore and 2 others 1985 PLC (C.S.) 26; R. Sampath v. The State of Madras and another AIR 1962 Mad. 485 and M.A. Moqeem v. The State of Mysore and others AIR 1963 Mys. 219 ref.

1973 SCMR 304: 1985 SCMR 1394; PLD 1991 SC 1118; 1996 SCMR 850 and 1988 SCMR 736 distinguished.

(b) Civil service‑

‑‑‑ Promotion from back date to the retired civil servant cannot be granted.

(c) Civil service‑

‑‑‑ Service Tribunal could not antedate the promotion.

(d) Civil service‑‑‑

‑‑‑‑Promotion‑‑‑Prescribed length of service for promotion to B‑19 is 12 years in B‑17 and above.

Sardar Muhammad Aslam, Dy.A.‑G. and Anwar H. Mir, Advocate­-on‑Record (absent) for Appellant (in C. A.No.1599 of 1999).

K.M. Samadani, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Appellant (in C. As. Nos.1600, 1601, 1603 to 1606 of 1999).

Mian Saeedur Rehman Farrukh, Advocate Supreme Court anal Sh. Salahud Din, Advocate‑on‑Record for Appellant (in C.A.No.1602 of 999).

M. Bilal, Senior Advocate Supreme Court, Babar Bilal, Advocate supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents No.1 (in C. A. No. 1599 of 1999).

Aleem Mahmood (in person), Abdul Hameed Qureshi (in person), Akbar Hayat Gandapuri (in person) and S.A. M. Walidi (in person).

Nemo for the Remaining Respondents.

Date of hearing: 13th June, 2002.

P L D 2003 Supreme Court 124

Present: Qazi Muhammad Farooq, Syed Deedar Hussain Shah and Abdul Hameed

Dogar, JJ

DIAMOND INDUSTRIES LIMITED‑‑‑Petitioner

Versus

M. ZAFAR‑UL‑HAQ HIJAZI and 2 others‑‑‑Respondents

Civil Petition for Leave to Appeal No.2813 of 2001; decided on 18th November, 2002.

(On appeal from the judgment dated 11‑6‑2001 of the Peshawar High Court, Peshawar, passed in Company Case No. 13 of 2000).

Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 265 & 10‑‑Securities and Exchange Commission of Pakistan Act (XLII of 1997), S.33‑‑‑Code of Civil Procedure (Amendment) Ordinance (X of 1980), S.15‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Investigation of company's affairs‑‑‑Notice was issued to the company under S.265, Companies Ordinance, 1984 to show cause as to why Inspector should not be appointed to investigate the affairs of the company on various grounds including non‑payment of return to the shareholders, uncalled for heavy expenditures, deviations from Memorandum of Association etc.‑‑‑Company assailed the said notice in appeal before the Appellate Bench of the Security and Exchange Commission of Pakistan which was rejected but subsequently maintained by the Company Judge of High Court‑‑‑Petition for leave to appeal to Supreme Court‑‑‑Maintainability‑‑‑All orders passed under S.10(2) of the Companies Ordinance, 1984, in exercise of original civil jurisdiction of the High Court as per provisions of S.15, Code of Civil Procedure (Amendment) Ordinance, 1980 were appealable before a Division Bench of the High Court‑‑‑Order, in the present case, being an interlocutory in nature was governed by S.15, Code of Civil Procedure (Amendment) Ordinance, 1980 against which an intra‑Court appeal before a Division Bench was the, only remedy‑‑‑Petition for leave to appeal being, not maintainable was dismissed and leave refused by the Supreme Court.

Brother Steel Mills Ltd. arid others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543 and Ch. Muhammad Hussain v. Pakistan Industrial and Credit Investment Corporation Ltd. and others CMA No.948 of 2002 in CA No. 648 of 2002 ref.

Irfan Qadir, Advocate Supreme Court for Petitioner.

M. Hamid Fawooq Durrani, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Respondents.

Date of hearing: 18th November, 2002.

P L D 2003 Supreme Court 126

Present: Javed Iqbal, Khalil-ur-Rehman Ramday, and Karamat Nazir Bhandari, JJ

MUKHTAR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Review Petition No.29 of 2002 in Criminal Appeal No.591 of 2000, decided on 18th November, 2002.

(On review from the judgment of this Court dated 4-4-2002 passed in Criminal Appeal No.591 of 2000).

(a) Supreme Court Rules, 1980---

----O. XXVI, R. 6---Constitution of Pakistan (1973), Art.188---Review petition---Maintainability---No plausible justification could be put forth for the absence of the Advocate who had argued the appeal judgment of which was under review---Advocate who had entered appearance for the first time in the case could not be allowed to argue the review petition in view of the provisions as contained in O.XXVI, R.6 of the Supreme Court Rules, 1980---Advocate who did not appear at the hearing of the appeal could not appear in the review petition as of right---No case was made .out to dispense with the requirements as enunciated in the said provisions of the Supreme Court Rules, 1980---Review petition was dismissed accordingly.

Yousaf Ali Khan v. The State (1972) 1 PSCR 103; Yousaf Ali Khan v. The State PLD 1971 SC 508; Abdul Majeed v. Chief Settlement Commissioner 1980 SCMR 504; Ghulam Rasul v. Settlement and Rehabilitation Commissioner 1980 SCMR 962; Sh. Anwarul Haq v. Mst. Surayya Parveen 1971 SCMR 171 and Mushtaq Ahmed alias Mushtaq Hussain and others v. Hakim Bibi and others 1971 SCMR 235 ref.

(b) Supreme Court Rules, 1980---

----O. XXVI, R.6---Constitution of Pakistan (1973), Art.188---Review of judgments or orders by Supreme Court---An Advocate who did not appear at the hearing of the appeal could not appear in the review petition as of right.

Yousaf Ali Khan v. The State ((1972) 1 PSCR 103; Yousaf Ali Khan v. The State PLD 1971 SC 508; Abdul Majeed v. Chief Settlement Commissioner 1980 SCMR 504 and Ghulam Rasul v. Settlement anti Rehabilitation Commissioner 1980 SCMR 962 ref.

Muhammad Aslam Nagi, Advocate Supreme Court for Petitioner.

Asghar Ali Chaudhry, Advocate Supreme Court for the Respondent/Complainant.

Date of hearing: 18th November, 2002.

P L D 2003 Supreme Court 128

Present: Javed Iqbal, Khalil‑ur‑Rehman Ramday and Karamat Nazir Bhandari, JJ

MUHAMMAD ISHAQUE and another‑‑‑Appellants

Versus

Mst. MANZOORAN BIBI alias SHAHIDA PARVEEN and another‑‑‑Respondents

Civil Appeal No. 1262 of 1998, deiced on 18th November, 2002.

(On appeal from the judgment dated 21‑5‑1998 of the Lahore High Court, Lahore passed in C.R. No.935 of 1995).

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

‑‑‑S. 115‑‑Constitution of Pakistan (1973), Art. 185(3) ‑‑‑ Revisional jurisdiction of High Court‑‑‑Scope‑‑‑Leave to appeal was granted by the Supreme Court to consider the plea that the High Court had set aside the concurrent findings of facts based on appraisal of evidence by the two Courts below without indicting as to whether there had been any misreading or non‑reading of the evidence.

(b) Muslims Family Laws Ordinance (VIII of 1961)---

‑‑‑‑Ss. 6 & 3‑‑‑Contract Act (IX of 1872), S.27‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Specific Relief Act (I of 1877), S. 12‑‑‑Suit for specific performance of agreement‑‑‑Wife had granted permission to the husband to contract a second marriage on the condition that husband will continue to pay Rs.500 per month as maintenance and also transfer one residential room and one shop part of the house, belonging to husband and his father‑‑‑Parties entered into an agreement incorporating the said conditions‑‑‑Husband, on the basis of permission from the wife obtained a certificate from the Arbitration Council entitling him to have a second wife and thereafter he entered into second marriage‑‑‑Husband did not fulfil the promise and instead divorced the first wife‑‑‑Father of the husband, in divorce proceedings, affirmed that he had transferred the residential room in favour of the first wife of his son and volunteered that whenever she wanted he will execute the sale‑deed‑‑‑Such promise was also not fulfilled‑‑‑Wife filed suit for specific performance of their agreement which was tried and dismissed up to Appellate Court on the ground that the agreement between husband and wife was not enforceable as there was no consideration and further the same was violative of S.27, Contract Act, 1872‑‑‑High Court, in revision took the view that grant of permission to marry was a valid consideration for the agreement to transfer the specified property‑‑‑Validity‑‑‑Agreement was not without consideration in the facts and circumstances of the case‑‑‑Provision of S.27, Contract Act, 1872 which otherwise was not attracted to the facts and circumstances of the case, gave way to the provision of S.3, Muslim Family Laws Ordinance, 1961 which provides that the Ordinance shall have overriding effect, notwithstanding the provision of any law to the contrary‑‑­Provision of S.6, Muslim Family Laws Ordinance, 1961 which placed a restraint on the right of the husband to enter into an additional marriage during the subsistance of the earlier marriage, except with the permission of the existing wife or in case of her refusal, with the permission of Arbitration Council, S.6 of the Ordinance, therefore, could not be said to be in conflict with the provision of S.27, Contract Act, 1872‑‑‑Mandate of S.3, Muslim Family Laws Ordinance, 1961 had to prevail in any case‑‑‑High Court, in circumstances, had rightly interfered in the exercise of revisional jurisdiction conferred by S.115, C. P. C. as the Trial Court and the Appellate Court had dismissed the suit on the wrong understanding of law that the agreement was without consideration or was violative of S.27 of the Contract Act, 1872.

Muhammad Yasin Chughtai, Advocate Supreme Court and Mahmudul Islam. Advocate‑on‑Record (absent) for Appellants.

Miss Hina Jillani, Advocate Supreme Court for Respondent No. 1 (in person).

Respondent No.2: Ex parte.

Date of hearing: 18th November, 2002.

P L D 2003 Supreme Court 132

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

MEMBER (S&R)/CHIEF SETTLEMENT COMMISSIONER, BOARD OF

REVENUE, PUNJAB, LAHORE and another---Appellants

Versus

Syed ASHFAQUE ALI and others---Respondents

Civil Appeal No.1268 of 1998, decided on 20th November, 2002.

(On appeal from judgment dated 18-3-1998, passed by the Lahore High Court, Lahore in Writ Petition No.64-R of 1997).

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2(2)---Constitution of Pakistan (1973), Arts. 185(3) & 199---Allotment of agricultural land---Leave to appeal was granted by the Supreme Court to examine the questions of law of public importance that whether the High Court could issue direction to allot the land to the respondents when order proposing the land could not be established from the record and that whether the direction to allot the land could be issued by the High Court in exercise of Constitutional jurisdiction under Art.199 of the Constitution after the repeal of Evacuee Laws and also that the fact that allotments stood banned since 1974 by virtue of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2(2)---Pending proceedings---Claim remaining unsatisfied till the repeal of the Evacuee Laws would not constitute pending proceedings within the purview of S.2(2) of the Act.

Nawab Din v. Member, Board of Revenue PLD 1979 SC 846; Government of Punjab v. Muhammad Yaqoob PLD 2002 SC 5 and Farhatullah Khan v. Additional Commissioner (Revenue) 2002 SCMR 1507 ref.

(c) Evacuee Property and Displaced, Persons Laws (Repeal) Act (XIV of 1975)----

----S. 2(2)---Constitution of Pakistan (1973), Art. 199---Pending proceedings---Respondents had failed to demonstrate that except an entry with regard to receipt of a claim concerning 2694 PIUs in favour of their predecessor-in-interest in R.L-II Register of the relevant village there was any application, complaint, petition or an actionable cause for satisfaction of claim or allotment of land pending, before an Authority appointed under the provisions of repealed laws before the repeal with effect from 1-7-1974--­Effect---Held, neither the claimant nor the respondents after his death made any application complaint, or written request before an Authority in prosecution of their object at relevant time with a view to obtain the allotment of land in satisfaction of their claim; they remained totally silent and unmoved for more than 30 years---No rationale and logic existed behind inactive and indifferent attitude of the respondents who got up from a deep slumber one day long after the repeal of laws without taking any concrete steps or measures for advancement of their cause which strongly militated against an element of fairness and bona fides on their part---Respondents, on account of laches in setting the machinery of law into motion disentitled themselves to the exercise of discretionary and equitable jurisdiction, which in all cases must be exercised in order to foster the ends of justice and to right a wrong---Would be unnatural and illogical to conclude that simply because in the mutilated and defaced record there appeared an entry with regard to a verified claim, Courts must assume that there were pending proceedings', which could be revived in the Constitutional jurisdiction of High Court, after the passage of more than three decades---In the absence of any strong documentary or circumstantial evidence tending to substantiate the highly belated claim of the respondents it would be difficult to hold that the claim of the respondents' predecessor-in-interest remained unconsumed or that they were legally entitled to ask for anticipating the same after the lapse of more than thirty years without approaching the forums available under the hierarchy of Evacuee Property and Settlement Laws---No proceedings, in circumstances, were pending within the ambit of the term 'pending proceedings' used in S.2(2), Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, which could be revived, activated or remanded to a notified Officer as contemplated by the Evacuee Property and Displaced persons Laws (Repeal) Act, 1975.---High Court, in circumstances, was not competent to exercise its Constitutional jurisdiction conferred under Art. 199 of the Constitution.

Karim Bibi v. Hussain Bakhsh PLD 1984 SC 334 ref.

(d) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2(2)---Expression "proceedings"---Connotation---Proceedings under the repealed laws would appear to commence with the application of a person entitled to the transfer of property out of evacuee pool under the Schedule and the Schemes framed thereunder ---Such application, normally, would be disposed of through an order passed by Competent Authority designated tinder the law and any person dissatisfied with such order may seek remedy before the Appellate and/or Revisional, Forum provided by law--­Proceedings, in such a case, remain pending until their final conclusion by the highest authority prescribed under the law.

In legal terminology the word "proceedings" mean the institution or carrying on of an action of law. Generally, a proceeding is the form and manner of conducting judicial business before a Court or Judicial Officer, including all possible steps in an action from its commencement to the execution of a judgment and in a more particular sense, it is any application to a. Court of justice for aid in enforcement of rights for relief, for redress of injuries, or damages or for any remedial object. Proceedings in its general use comprehends every step taken or measure adopted in prosecution or defence of art action.

The expression "proceedings" has not been defined in the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 but it is a very comprehensive term and generally includes a prescribed course of action for enforcement of a legal right, which would essentially involve the requisite steps by which judicial action is invoked. A "proceeding" would include every step taken towards the furtherance of a cause before a Court or a Tribunal where it might be sub judice. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceedings commence with the first step by which the machinery of law is placed into motion in order to take cognizance of a cause. Proceedings under the repealed laws would appear to commence with the application of a person entitled to the transfer of land out of evacuee pool under the schedule and the schemes framed thereunder. Normally, such application would be disposed of through an order passed by a Competent Authority designated under the law and any person dissatisfied with such order may seek remedy before the appellate and/or revisional forum provided by law. In such a case proceedings remain pending until their final conclusion by the highest Authority prescribed under the law.

The State v. Naeemullah Khan 2001 SCMR 1461 ref.

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

----Art. 199---Constitutional jurisdiction of High Court ---Scope---Laches--­Effect.

Writ jurisdiction is undoubtedly discretionary and extraordinary in nature which may not be invoked by a party who demonstrates a style of slackness and laxity on his part. Furthermore, if a party does not choose legal remedy available under the Statute, strictly speaking Constitutional jurisdiction of the High Court cannot be exercised in his favour. Law is well-­settled that a party guilty of gross negligence and laches is not entitled to the equitable relief. One who seeks equity must show that equities lean in his favour.

(f) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2(2)---Constitution of Pakistan (1973), Arts. 199 & 185---Pending proceedings---Constitutional jurisdiction of High Court---Scope---No proceedings were pending before the Authorities before the repeal of laws--­High Court was not legally competent to make any direction---High Court, even in a fit or proper case could only remand the case to the relevant Authorities for consideration of the right and interest of a person according to law in order to secure the ends of justice, and not to determine the right and entitlement of a person itself---Discretion conferred on the superior Courts was though very wide and extraordinary, however, such discretion was always required to be exercised judiciously and not in an arbitrary manner---High Court, in the present case, by determining the rights and entitlement of the party, had not examined the discretion vested in it by law in a just and lawful manner, Supreme Court, in circumstances, was under a legal obligation to undo the wrong rather than to act in aid of injustice.

Wajih-ul-Hassan Ziadi v. Government of Punjab 1997 SCMR 1901 distinguished.

(g) Words and phrases--

---"Proceedings"---Connotation.

Ch. Mushtaq Masood, Advocate Supreme Court for Appellants.

Gul Zarin Kiani, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing: 20th November, 2002.

P L D 2003 Supreme Court 143

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Falak Sher, JJ

Dr. MUHAMMAD HUSSAIN ‑‑‑Petitioner

Versus

PRINCIPAL; AYUB MEDICAL COLLEGE and another‑‑‑Respondents

Civil Petition No. 1635 of 2001, decided on 3rd October, 2002.

(On appeal from the judgement dated 25‑1‑2001 of the Peshawar High Court, Abbottabad Bench, passed in No.240 of 1997).

Civil service‑‑‑

‑‑‑‑Recruitment‑‑‑Promotion‑‑‑Alteration or amendment of the prescribed qualification by the Government‑‑‑Validity‑‑‑Government was competent to enhance, alter or amend the prescribed qualification for a particular post‑‑­No one can claim a vested right in promotion or in the terms and conditions for the promotion to a higher post‑‑‑Government has the right to enhance the qualifications and the standards for recruitment and promotion in order to maintain efficiency in service‑‑‑Civil servant can not claim vested right in other higher tiers in the hierarchy except for the post which the civil servant happened to hold‑‑‑Principles.

Government is competent to enhance, alter or amend the prescribed qualification for a particular post which cannot be objected to as qualification for a particular post cannot be kept unchanged for decades to safeguard the interest of a particular incumbent and day to day changes in every walk of life, scientific developments and increasing technical know‑how cannot be ignored.

No one can claim a vested right in promotion or in the terms and conditions for the promotion to a higher post. The Government has the right to enhance the qualifications and the standards for recruitment and promotion in order to maintain efficiency in service. Except for the post which the civil servant happens to hold, he cannot claim vested right in other higher tiers in the hierarchy.

In the absence of impairment of vested right, it would be within the exclusive competence of the Government to determine the terms and conditions of the service: It cannot be said that a rule which grants weightage to academic qualifications against experience is unreasonable and harsh. With the increasing emphasis on specialization and improved techniques and knowledge, the academic qualifications may be granted greater weightage than the actual experience on the job without such qualifications.

Civil servant has no vested right whatsoever for promotion on the ground that there was no other competitor or on the basis of his satisfactory service record because it is for the Competent Authority to determine the suitability of a person for promotion after assessment of all relevant considerations i.e. seniority, competence, rectitude and qualifications. Rules applicable and the conditions required to be satisfied on the date of appointment are to be taken into consideration and not what were the requirements at an earlier date. Civil servant can neither have any vested right in respect of the terms and conditions of a post which was higher than the one which he was holding nor a change in the recruitment rules of the higher post can be said to operate against him retrospectively.

It is within the competence of Competent Authority to prescribe the requisite qualifications for a particular post as may be conducive' to the maintenance of proper discipline and efficiency.

Contention that no amendment could be made in the regulation concerned which should be kept intact as it was at the time of the appointment of the employee, is devoid of any logic.

The appointment or promotion to a particular post cannot be made in violation of the prevalent rules and regulations. The previous appointment if any made in violation of regulation cannot be made a ground to continue such illegal practice.

The competent authority is fully competent to make amendment in the prescribed qualifications and by doing so no illegality whatsoever has been committed.

Government of N.‑W.F.P. v. Muzaffar Iqbal 1990 SCMR 1321; Government of West Pakistan v. Fida Muhammad PLD 1960 SC 45; Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan PLD 1960 SC 81 ; Province of West Pakistan v. Muhammad Akhtar PLD 1962 SC 428; Manzar Ahmad v. Muhammad Ishaq PLD 1964 SC 17; Muhammad Umar Malik v. Federal Service Tribunal and others PLD 1987 SC 172; Muhammad Ahmad v. Government of West Pakistan PLD 1971 SC 840: Muhammad Alsam Chishti v. Chairman, WAPDA 19134 PLC (C.S.) 21, Government of Pakistan v. Fatehullah Khan PLD 1960 SC 105; Province of Punjab v. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Habib Bank Ltd. and others v. National Industrial Relations Commission and others PLD 1988 SC 362 and Banarasidas v. State of Uttar Pradesh PLD 1956 SC (Ind.) 323 ref.

Sheikh Mehmood Ahmad, Advocate Supreme Court and Anwar H. Mir, Advocate‑on‑Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd October, 2002.

P L D 2003 Supreme Court 149

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

AMERICAN MARBLES PRODUCTS LTD.‑‑‑Petitioner

Versus

I.C.P. and others‑‑‑Respondents

Civil Appeal No. 1307 of 1995, decided on 2nd October, 2002.

(On appeal from the judgment dated 3‑10‑1995, passed by High Court of Sindh, Karachi in J. Misc. No.315 of 1994).

Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑Ss. 305 & 309‑‑‑Winding‑tip petition by the Investment Corporation having advanced loan to the Company ‑‑‑Winding‑up of Company for the same being unable to pay its debts and failure to commence its business sine incorporation and appointment of official assignee as the official liquidator by the Company Judge‑‑‑Appeal before Supreme Court was preferred solely using the plea of lack of competence viz. the respondents (Investment Corporation of Pakistan) being investors on profit and loss basis were not the creditors within the contemplation of the banked upon statutory provision and thus were not competent to move the winding‑up petition when they hall even failed to invest the covenanted sum‑‑‑Validity‑‑‑Conjunctive reading of the agreements, the demand promissory note, the trust deed and the registered mortgages, charges, hypothecations and the correspondence exchanged between the parties patently demonstrated the intendment of the parties and the nature of the arrangements made as to its juridical classification, a loan facility explicitly described as a loan of the agreement comprising long term PTCs and LFM refinancing by the syndicate secured through mortgage of all present and future movable and immovable asset uncalled capital, continuing floating charges, to rank pari passu with ill existing mortgages/charges with other creditors at fixed rate of profit payable bi‑annually to be credited as expenses in the profit and loss account of the company, restraining the company from alienating any of its asset during subsistence of encumbrances or charges of mortgages in favour of till Syndicate in the event of default rendering the entire sum due and payable upon expiry of the notice period‑‑‑Such factum had been admitted even by the company in the reply to the notice rendering unambiguously clear beyond the realm of doubt that the availed facility by the Company from the Investment Corporation (Syndicate) for all interests and purposes was a loan fully secured through proper documentation and not investment simpliciter‑‑­Company, admittedly since its incorporation nearly a decade ago, had not even commenced its business‑‑‑Contention of company as to failure of the Investment Corporation (Syndicate) to disburse the entire loan facility on time was ill‑founded since the term of agreement of the facility preconceived performance of the undertaking by the company which was lacking‑‑‑No exception, in circumstances, could be taken to the order of the High Court asking winding‑up of the Company‑‑‑Appeal being devoid of any substance was dismissed by the Supreme Court.

M. Bilal, Senior Advocate Supreme Court for Petitioner.

Rai Muhammad Nawaz Kharal, Advocate Supreme Court and M.A Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing: 2nd October, 2002.

P L D 2003 Supreme Court 154

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogar, JJ

MUSTAFA NAWAZ KHOKHAR---Petitioner

Versus

FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, ISLAMABAD---Respondent

Civil Petition No. 1467 of 2002, decided on 12th September, 2002.

(On appeal from the order dated 26-8-2002 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in C.M. No. 1-C/2002 in Civil Revision No.538-D of 2002).

Constitution of Pakistan (1973)---

--Art.185---Civil Procedure Code (V of 1908), S.115---Appeal to Supreme Court---Interlocutory order passed by a competent Court---Interference by supreme Court---Scope---Ordinarily, an interlocutory order passed by a competent Court is not interfered with by the Supreme Court ---Non-Interference with such an order is a rule and interference an exception--interference is justified in order to obviate miscarriage of justice where the interlocutory order is arbitrary, capricious and against the well-settled principles of law---Where the petitioner was admittedly a contesting candidate for National Assembly seat and his candidature was protected by the judgment and decree challenged in the civil revision---Concurrent findings of fact by two Courts with regard to his age to contest election were favour of the petitioner which were to be scrutinized by the High Court at to final hearing of the revision in the light of settled law on the subject and pope of revisional jurisdiction---If the interlocutory order, which was passed at the back of the petitioner and appeared to be unnecessary remained in the field the petitioner was to be sidelined in the General Elections on the ground of being less than twenty-five years of age and would suffer an irreparable loss in case .revision was dismissed---Present case fell within the category of exceptional cases on account of the nature of interlocutory order and a case for interference was thus made out which could be done without touching the merits of the case---Supreme Court converted the petition into appeal and allowed the same in terms that interlocutory order would remain suspended till disposal of the revision by High Court.

Ramzan Sugar Mills Ltd. v. Miraj-ud-Din 1994 SCMR 2281 and Islamic Republic of Pakistan v. Muhammad Zaman Khan 1997 SCMR 1508 ref.

Muhammad Ibrahim Satti, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioner.

Agha Tariq Mehmood Khan, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 12th September, 2002.

P L D 2003 Supreme Court 156

Present: Javed Iqbal, Sardar Muhammad Raza and Falak Sher, JJ

MUHAMMAD JANAN‑‑‑Petitioner

Versus

GENERAL MANAGER, PAKISTAN MINERAL DEVELOPMENT

CORPORATION (PVT.) LTD., ISLAMABAD and another‑‑‑Respondents

Civil Petition for Leave to Appeal No.428 of 2001, decided on 11th November, 2002.

(On appeal from the judgment dated 14‑12‑2002. of the Federal Service Tribunal, Islamabad in Appeal No.372(P) of 1999).

Pakistan Mineral Development Corporation Rules‑‑

‑‑‑‑ R. 36‑‑‑Employee, a Shot Firer working under the Corporation‑‑­Retirement of such employee under R.36 of the Rules‑‑‑Validity‑‑‑Employee would retire from service on attaining the age of 60 years‑‑‑Where the age of the employee was not yet of 60 years, his retirement was illegal on the face of it‑‑‑Services of a very senior and experienced employee, in the present case, were dispensed with on the pretext of retirement without any just cause‑‑‑Employee, in case of retirement before superannuation, was entitled to be given notice which was not done‑‑‑Service Tribunal on appeal had failed to appreciate the matter in its true perspective and mixed up the termination of an employee with the factum of retirement‑‑‑Supreme Court, by converting the petition for leave to appeal into an appeal, directed that if the employee, as per service record, had by now attained the age of 60 years, he shall be deemed to have retired on such date with all back and future benefits and if he had not attained the age of 60 years, he was reinstated in service with all benefits.

Habibul Wahab‑ul‑Khairi, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioner.

M. Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents/Caveators.

Date of hearing: 26th September, 2002.

P L D 2003 Supreme Court 159

Present: Qazi Muhammad Farooq, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

SIRAJ DIN and others‑‑‑Petitioners

Versus

GHULAM NABI and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.2852‑L of 2002, decided on 14th November, 2002.

(On appeal from the judgment dated 11‑7‑2002 of the Lahore High Court, Lahore, passed in Civil Revision No. 1151 of 1995).

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

‑‑‑‑Ss. 42 & 54‑‑‑Registration Act (XVI of 1908), S.17(b)‑‑‑Suit for declaration, permanent injunction and possession by predecessors‑in‑interest of a lady asserting therein that their mother was the owner in possession of the suit‑land; that she had never appointed anybody as her attorney and the alleged general power of attorney was invalid and fictitious and mutation entered in respect of sale of the suit property were not only illegal but mutations were attested by fraud as managed by the then Patwari‑‑‑Neither the scribe of the document of general power of attorney nor the Notary Public alleged to have attested the same was examined to prove its genuineness‑‑‑Very foundation of this case was baseless and merited to fall down‑‑‑When the sale mutations in dispute were made, consolidation proceedings were pending, alienation and mutation, in absence of registered sale‑deed and also without obtaining necessary permission of the Consolidation Officer were illegal‑‑‑Record showed that no such general power of attorney was produced in the evidence before the Trial Court as such same being non‑existent, the question of its validity would not arise at all‑‑‑Any document that purported to create right, title or interest in immovable property required compulsory registration‑‑‑If the general power of attorney was in existence, the same should have been compulsorily registered and mere attestation of general power‑of‑attorney by the Notary Public was not sufficient to meet the requirement of law.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Condonation of delay‑‑‑Mutations and alienations having taken place behind the back and knowledge of the owner of the property, condonation of delay in filing suit while taking into consideration the circumstances was valid.

Ch. Muhammad Anwar Bhinder, Advocate Supreme Court for Petitioners.

Naeemul Hassan Sherazi, Advocate Supreme Court for Respondent No.3(iv).

Date of hearing: 14th November, 2002.

P L D 2003 Supreme Court 163

Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

ABDUL BAQI and others---Petitioners

Versus

MUHAMMAD AKRAM and others---Respondents

Civil Petitions Nos.59-Q to 61-Q' and 67-Q of 2002, decided on 31st October, 2002.

(On appeal from the judgment/order dated 9-9-2002 passed by High Court of Balochistan in Constitutional Petitions Nos. 262, 44, 220, 225 and 256 of 2002).

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

---Arts. 25, 2A, 22 & 37-C- -Prospectus of Bolan Medical College 2000-2001, para. 7---Admission it Medical College---Allocation of seats in the Medical College ---Classification of candidates---Validity---Only such classification could be deemed reasonable which fosters the objects of the Constitution i.e. to make higher a education available on merits and at the same time to accommodate the interests of the socially or economically disadvantaged sections of the people for the purpose of fostering genuine gather than nominal equality.

Mst. Attiyya Bibi Khan v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161 and Shireen Raza and others v. Federation of Pakistan through Secretary, Ministry of Education, Islamabad and others 2002 SCMR 1218 ref.

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

----Arts. 22(4) & 25---Educational institution, admission to--Equality of citizens---Article 22(4), Constitution of Pakistan (1973) empowers a public authority for making provisions for advancement of socially backward class of citizens---Citizens' rights as a human being ire not affected by reason of his descent, religion; social or official status, economic condition or place of birth or residence---All citizens are equally subject to the general law of the land---Equal protection of law envisages that m person or class of persons shall be denied the same protection of laws, which are enjoyed, by other persons or classes in same circumstances.

Mst. Attiyya Bibi Khan v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161; Shireen Raza and other; v. Federation of Pakistan through Secretary, Ministry of Education, Islamabad and others 2002 SCMR 1218 and Gul Khan v. Government of Balochistan through Secretary, Education and 4 others PLD 1989 Quetta 8 ref.

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

---Art. 25---Equality of citizens---Principles--Reasonable classification--­ingredients.

I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

(d) Prospectus of Bolan Medical College 2000-2001---

----Para. 7---Constitution of Pakistan (1973), Arts.22(4), 25, 37 & 38--­Admission to Medical College---Allocation of seats in the Medical College--­Classification of candidates ---Vires of para. 7, Prospectus of Bolan Medical College 2000-2001---Rationale behind the distribution of seats for admission being present and classification on intelligible differentia was struck, para. 7 of the Prospectus of Bolan Medical College 2000-2001 was not ultra vires the provisions of Arts.22 (4), 25, 37 of 38 of the Constitution of Pakistan (1973).

Mst. Attiyya Bibi Khan v. Federation of Pakistan through Secretary of Education (Ministry of Education); Civil Secretariat, Islamabad and others 2001.SCMR 1161 ref.

(e) Prospectus of Bolan Medical College 2000-2001---

----Para. 7---Powers 'and Functions of the Governor's Order [Chief Executive' Order No.5 of 1999))---Admission to Medical College---Policy for admission promulgated by the Governor---Validity---Powers and Functions of the Governor's Order, 1999 has specified that the power and functions of the Governor under the Constitution shall be the same as of a Chief Minister under the Constitution including the financial powers of Chief Minister and such other powers and functions as may be conferred upon him by the Chief Executive of Pakistan---Governor of Balochistan, therefore, was within his competence to promulgate policy for admission in the Bolan Medical College.

K.N. Kohli, Advocate Supreme Court for Petitioners (in C.Ps. Nos.59-Q, 60-Q & 67-Q of 2002).

Raja M. Afsar, Advocate Supreme Court for Petitioners (in C.P. No.61-Q of 2002).

Raja Abdul Ghafoor, Advocate Supreme Court (in all Petitions) (for the Official Respondents).

H. Shakil Ahmad, Advocate Supreme Court for Respondent No. 1 (in C.Ps. Nos. 59-Q and 60-Q of 2002).

Date of hearing: 17th October, 2002.

P L D 2003 Supreme Court 171

Present: Qazi Muhammad Farooq, Syed Deedar Hussain Shah, Abdul Hameed Dogar, JJ

SAJEEL RASHID and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No.665‑L of 2002, decided on 7th November, 2002.

(On appeal from the judgment dated 8‑8‑2002 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.4671‑B of 2002).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.380/427/148/149/448/511‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Pre‑arrest bail ‑‑‑Principles‑‑­Civil litigation over the property in dispute admittedly existed between the parties prior to the lodging of the F.I.R. and the complainant and his father had been restrained from interfering in the construction work of the boundary wall over the plot‑‑‑Presence of sand and bricks at the scene of offence had supported the defence version that in fact no incident of any sort had taken place, but the dispute had emerged in between the parties over the construction of the boundary wall on the open plot‑‑‑Eye‑witnesses in their statements recorded under S.161, Cr.P.C. had neither mentioned the names of the accused nor had shown them to be armed with fire‑arms‑‑‑Chances of accused having been involved due to the dispute over the said property could not be ruled out at such stage‑‑‑Interim pre‑arrest bail already granted to accused was confirmed in circumstances.

Murad Khan v. Fazal‑e‑Subhan and another PLD 1983 SC 82: Jamaluddin v. The State 1985 SCMR 1949 and Meeran Bux v. The State and another PLD 1989 SC 347 ref.

Aitzaz Ahsan Senior Advocate Supreme Court for Petitioners.

Dr. A. Basit, Senior Advocate Supreme Court for the Complainant.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 7th November, 2002.

P L D 2003 Supreme Court 175

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogar, JJ

MANAGING DIRECTOR (POWER), WAPDA and others‑‑‑Appellants

Versus

MUHAMMAD LUQMAN‑‑‑Respondent

Civil Appeal No.381 of 1997, decided on 10th September, 2002.

(On appeal from the judgment dated 8‑11‑1995 of the Federal Service Tribunal, Islamabad in Appeal No.248(L) of 1995).

(a) Pakistan Power Wing Commercial and Revenue Officers Rules, 1982‑‑‑

‑‑‑‑Appendex I, Col.6‑‑‑Pakistan Water and Power Development Authority Act (XXXI of 1958), S.17‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑­Constitution of Pakistan (1973), Art.212(3)‑‑‑WAPDA employee‑‑­Promotion‑‑‑Leave to appeal was granted by the Supreme Court to consider as to whether appeal of the employee before Service Tribunal was time-­barred; whether the employee had no vested right to claim promotion in a particular grade and from a particular date; whether the employee was governed by the Pakistan Power Wing Commercial and Revenue Officers Rules, 1982 or some other Rules; whether the note incorporated in Col. 6 of appendix I of the said Rules barred the employee from being allowed Grade 17 as Revenue Officer, if he did not fulfil the conditions laid down in tile said note and whether promotion of employee as Revenue Officer should have been ordered with retrospective effect from 28‑12‑1986 in view of the seniority given to him.

(b) Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑‑

-‑‑S. 17(1‑B)‑‑‑Service Tribunals Act (LXX of 1973), S.4(1)(a)‑‑‑Appeal to Service Tribunal ‑‑‑WAPDA employee being a civil servant by fiction of law could not have filed an appeal before the Service Tribunal without exhausting the remedy of representation under S.22(2) of the Service Tribunals Act 973.

Gulbat Khan v. WAPDA 1992 SCMR 1789 and Muhammad Ibrahim Mangrio and others v. Chairman, WAPDA and another 2001 SCMR 848 ref.

(c) Service Tribunals Act (LXX of 1973)‑‑‑

--‑Ss. 4 & 7‑‑‑Appeal to Service Tribunal‑‑‑Limitation‑‑‑Period of limitation was to be reckoned from the date of filing the representation by the servant.

(d) Civil service‑‑‑

--‑Promotion‑‑‑Vested right of employee‑‑‑Where the Rules, Regulation and Policy had been framed for regulating appointment and promotion, an­d each or deviation from them for mala fide reasons or due to arbitrary act of Competent Authority, would entitle an aggrieved person to challenge same.

Walayat Ali Mir v. Pakistan International Airlines Corporation 199 SCMR 650 ref.

(e) Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑‑

---S. 17‑‑‑Pakistan Power Wing Commercial and Revenue Officers Rules, 1982, Appendix I, Co1.6, Note‑‑‑Interpretation of Note in the Appendix‑­‑Note makes it manifest that a promotee on selection will be allowed B-17 and will be reverted to his original grade/post if he failed to qualify the prescribed Departmental Examination within two consecutive chances.

M. Saleem Chaudhry, Advocate Supreme Court for Appellants.

Mian Mehmood Hassan, Advocate Supreme Court for Respondent.

Dare of hearing: 10th September, 2002.

P L D 2003 Supreme Court 180

Present: Qazi Muhammad Farooq, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

GHULAM QADIR alias QADIR BAKHSH‑‑‑Petitioner

Versus

Haji MUHAMMAD SULEMAN and 6 others‑‑‑Respondents

Civil Petition No.3405 of 2001, decided on 4th November, 2002.

(On appeal from the judgment dated 16‑10‑2001 of the Lahore High Court, Multan Bench, Multan, passed in R.F.A.No.87 of 1999).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XVII, Rr.3, 2, 1 & O.IX‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Where on any date the hearing of the suit is adjourned and parties or any of them failed to appear, Court, under, O.XVII, R.2, C.P.C. may proceed to dispose of the suit in one of the modes directed by O.IX, C.P.C.‑‑‑Petitioner, in the present case, admittedly failed to cause attendance of his witnesses from 3‑1-1995 to 14‑7‑1999 without any valid reason‑‑­Neither the petitioner nor his witnesses or his counsel was present even on the last date of hearing, which was a sufficient cause to close his evidence‑‑­Trial Court, in circumstances, while exercising jurisdiction under O.XVII, R.3, C.P.C. had not committed any illegality.

As per record, the suit in the present case, was filed on 29‑7‑1990, whereas the written statement was filed on 28‑11‑1992 and the issues were framed on 6‑11‑1994. Thereafter the case was fixed for recording the evidence of the petitioner's side. Since 3‑1‑1995 till 14‑7‑1999, the petitioner failed to produce the evidence. It was only on one date viz. 13‑11‑1998, that he brought four witnesses but the matter was adjourned as the Presiding Officer was on leave on that day. Meanwhile, on 4‑2‑1999, the petitioner preferred an application under Order XIV, rule 5, C.P.C. which was dismissed on 29‑6‑1999 after affording full opportunity of hearing to the parties and the matter was adjourned to 14‑7‑1999 with a specific direction to the petitioner to produce his evidence as a last opportunity mainly for the reason that the matter was sufficiently old and related to the year 1990. It would be pertinent to note that in spite of specific directions, the petitioner neither bothered to appear himself nor arranged production of his counsel but one Advocate, appeared on behalf of his counsel only. In such circumstances, the trial Court was left with no option but to close his side under Order XVII, rule 3, C.P.C.

The provisions of Order XVII, rule 2 read with Order IX of the C.P.C. would not be applicable in the present case. According to Order XVII, rule 2, C.P.C., the Court, where on any date the hearing of the suit is adjourned and the parties or any of them failed to appear, may proceed to dispose of the suit in one of the modes directed by Order IX of the C.P.C. The provisions of sub‑rule (3) of rule 1 of Order XVII of the C.P.C. (Lahore Amendment) would" also be of no help to the case of the petitioner as he admittedly failed to show sufficient cause for grant of the adjournment.

In the present case the petitioner admittedly failed to cause the attendance of his witnesses from 3‑1‑1995 to 14‑7‑1999 without any valid reason,. Even on the last date of hearing, neither he nor his witnesses or his Advocate was present which was a sufficient cause to close the evidence. Thus the trial Court while exercising jurisdiction under Order XVII, rule 3 of the C.P.C., had not committed any illegality.

Sattar Muhammad v. Raja Anwarullah Khan 1985 CLC 1550; Sangram Singh v. Election Tribunal, Kotah and another AIR 1955 SC 425 and Messrs Hindusthan Steel Ltd. v. Prakash Chand Agarwal and another AIR 1970 Orissa 149 ref.

Gul Zarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Ch. Sagheer Ahmad, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Respondents.

Date of hearing; 4th November, 2002.

P L D 2003 Supreme Court 184

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

MUHAMMAD YOUSAF and others‑‑‑Appellants

Versus

Haji MURAD MUHAMMAD and others‑‑‑Respondents

Civil Appeal No.902 of 2000, decided on 21st October, 2002.

(On appeal from the judgment dated 9‑5‑2000 of the High Court of Balochistan, Quetta passed in Civil Revision No. 112 of 1998).

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

‑‑O. XIV & S.115‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to Appeal was granted to examine as to whether decree for return of articles had been passed by Qazi and confirmed by Appellate Court i.e. Majlis‑e‑Shoora by means of judgment and decree and the revisional Court respectively without evidence to substantiate the, claim in view of issues framed by the trial Court.

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

‑‑‑‑O. XIV & S. 115‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Revision before High Court‑‑‑Concurrent findings of Court below‑‑‑Improper framing of issues‑‑‑Record of the case revealed that foundation of concurrent findings by the Courts below was the admission of appellants concerning alleged removal of various household articles but a careful examination of the contents of the written statement would reveal that the claim of respondents was repudiated, which aspect of the matter escaped notice of the Courts below and resulted in serious miscarriage of justice‑‑‑Record also showed that the pleadings were never perused with diligent application of mind by the Trial Court and the proper issues clinching the controversy could not be framed and resultantly the parties failed to substantiate their respective claims by adducing credible evidence as the issues framed by the Trial Court were ambiguous and vague‑‑‑Trial Court itself was not clear as to which party had to discharge the onus of the issues framed‑‑‑Provisions of O.XIV, R.5, C.P.C. were ignored completely by the Trial Court while framing the issues as a result whereof controversy regarding removal of household articles could not be resolved‑‑‑Where an issue, though in terms covering the main question in the cause, could not sufficiently direct the attention of the parties to the main questions of fact, necessary to be decided, the parties might have been prevented from adducing evidence, or fresh issue might be directed to try the principal question of fact‑‑‑Duty of raising issues under C.P.C. rested on the‑ Court and it would be unsafe to presume from the failure of the Court to raise the necessary issues an intention of the defendant to admit the fact, which the plaintiff was bound to prove‑‑‑Supreme Court, in circumstances, accepted the appeal, judgments of Trial Court and Appellate Court were set aside and the case was remanded to the Trial Court to commence the proceedings afresh after framing proper issues by strictly following the provisions as contained in O.XIV, C.P.C. and after perusing the pleadings vigilantly.

Olagappa v. Arbuthnot (1875) 14 BLR 115‑142, 14/268, 316 and Ganou v. Shri Devsidhes War; 1902 AIR 26 Bom. 360‑362 fol.

Tapir Muhammad Khan, Advocate Supreme Court and Mehta W.N. Kohli, Advocate‑on‑Record (absent) for Appellants.

Muhammad Riaz Ahmed, Advocate‑on‑Record for Respondents:

Date of hearing; 21st October, 2002.

P L D 2003 Supreme Court 187

Present: Rana Bhaghwandas, Abdul Hameed Dogar and Khalil‑ur‑Rehman Ramday, JJ

SHAMAS‑UD‑DIN KHAWAJA‑‑‑Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Establishment, Islamabad and 2 others‑‑‑Respondents

Civil Petition No.2500 of 2001, decided on 9th October, 2002.

(On appeal from the judgment dated 25th June, 2001 of the Federal Service Tribunal, Islamabad, passed in Appeal No.763(R)/(CS)/2000).

Government Servants (Efficiency and Discipline) Rules, 1973‑‑

‑‑‑‑Rr. 6, 5 & 4‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Compulsory retirement‑‑‑Inquiry procedure‑‑‑Full‑fledged inquiry is to be made whereby an Authorised Officer is required to frame a charge and inform the accused civil servant of the statement of allegations against him‑‑‑Provision of R.6(1)(2), Government Servants (Efficiency and Discipline) Rules, 1973 clearly stipulates that the accused official shall be provided not less than 7 or more than 14 days' period to put in his defence, oral or documentary evidence, and also to cross‑examine the witnesses against him‑‑‑Mere factum of taking in hand inquiry proceedings under the Rules against a civil servant cannot be equated with the procedure prescribed in R.6(1)(2)(3) of the Rules‑‑‑Ample convincing and reliable evidence has to be on the record which could safely go to prove the charges levelled against the civil servant and only then findings of compulsory retirement could be recorded‑‑‑Where the departmental proceedings were initiated only on the basis of criminal charge, which was not subsequently proved by the competent Court of law and resulted in acquittal, order of Service Tribunal upholding the order of compulsory retirement by the Department was set aside by the Supreme Court.

Attaullah Sheikh v. WAPDA and others 2001 SCMR 269 ref.

S.M. Abdul Wahab, Advocate Supreme Court instructed by M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Hafiz S.A. Rehman, Deputy Attorney‑General instructed by Ch. Muhammad Akram, Advocate‑on‑Record for Respondents.

Date of hearing; 9th October, 2002.

P L D 2003 Supreme Court 191

Present: Javed Iqbal, Tanvir Ahmed Khan and Muhammad Nawaz Abbasi, JJ

SHIPYARD K. DAMEN INTERNATIONAL‑‑‑Petitioner

Versus

KARACHI SHIPYARD AND ENGINEERING WORKS LTD. ‑‑‑Respondent

Civil Petitions for Leave to Appeals Nos. 1120 and 1121 of 2002, decided on 11th July, 2002.

(On appeal from the judgment dated 9‑5‑2002 of the High Court of Sindh, Karachi, passed in H. C. As. Nos. 16 and 17 of 2002).

(a) Contract Act (IX of 1872)‑‑‑

-‑‑Ss. 126, 127, 10, 17 & 18‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2‑‑‑Bank guarantee and letter of credit‑‑ ‑Nature and effect‑‑‑Rights and liabilities of surety/Bank, principal debtor and creditor tinder Bank guarantee and principal contract, determination and enforcement of‑‑‑Temporary injunction, grounds for grant of‑‑‑Action by creditor against guarantor‑‑‑Burden of proof‑‑‑Liability of guarantor, when contract becomes unenforceable against principal debtor‑‑‑Bank guarantee is similar to an irrevocable letter of credit‑‑‑Bank guarantee is an independent contract between Bank and customer imposing absolute obligation on Bank to comply with its terms, irrespective of any dispute between parties to principal contract‑‑‑Bank guarantee becomes due on happening of a contingency on which same becomes enforceable‑‑‑Bank must pay on demand, if so stipulated, without proof or conditions, in absence of any special equities or ear/established fraud‑‑‑Bank's obligation ends, once Bank guarantee is discharged‑‑‑Court should refrain from probing into nature of transactions between Bank and customer, which led to furnishing of Bank guarantee‑‑­It disqualified terms of guarantee cannot be interfered with by Court irrespective of existence of dispute nor interim injunction restraining payment thereunder can be granted‑‑‑Remedy arising out of ex‑contract is not barred as cause of action for same was independent of enforcement of contract of guarantee‑‑‑Commitments of Banks must be honoured free from interference by Courts‑‑‑Theory of non‑interference by Courts in respect of Bank guarantee and letter of credit‑‑‑Purpose, exceptions and considerations.

Performance of guarantee stands on the footing similar to an irrevocable letter of credit of Bank, which must be honoured according to its term irrespective of the fact whether the supplier is in default or not‑‑‑Bank must pay according to its guarantee all demand if so stipulated without proof or conditions. Only exception is when there is a clear fraud of which Bank has notice.

There is an absolute obligation upon the banker to comply with the terms and conditions as enumerated in the guarantee and to pay the amount stipulated therein irrespective of any disputes there may be between buyer and seller as to whether goods are up to contract or not.

The bank guarantee should be enforced on its own terms and realization against the bank guarantee would not affect or prejudice the case of contractor, if ultimately the dispute is referred to arbitration for the reason, once the terms and conditions of the guarantee were fulfilled, the banks liability tinder the guarantee was absolute and it was wholly independent of the dispute proposed to be raised.

The contract of bank guarantee is an independent contract between the bank and the party concerned and is to be worked out independently of the dispute arising out of the work agreement between the parties and, therefore, the extent of the dispute and claims or counter‑claims were matters extraneous to the consideration of the question of enforcement of bank guarantee and were to be investigated by arbitrator.

Where bank had undertaken to pay the stipulated sum to respondent, "at any time, without demur, reservation, recourse, contest or protest, and without any reference to contractor, no interim injunction restraining payment tinder the guarantee could be granted.

Bank guarantee is an autonomous contract and imposes an absolute obligation on the bank to fulfil the terms and the payment on the bank guarantee becomes due on the happening of a contingency on which the guarantee becomes enforceable.

Bank cannot be prevented by the party at whose instance guarantee or letter of credit was issued, from honouring the credit guaranteed. The Courts should not lightly interfere with a performance bond or guarantee, unless there is fraud of the beneficiary.

When once bank guarantee is discharged, the obligation of bank ends and there is no question of going behind such discharged bank guarantee. Courts should refrain from probing into the nature of the transactions between the bank and customer, which led to the furnishing of bank guarantee

In the absence of any special equities and the absence of any clear fraud, the bank must pay on demand, if so stipulated and whether the terms are such must be ascertained from the performance guarantee itself.

The unqualified terms of guarantee could not be interfered with by Courts irrespective of the existence of dispute

Effect of injunction is to restrain bank from performing the bank guarantee. That cannot be done. One cannot do indirectly what one is not free to do directly.

An irrevocable commitment either in the form of confirmed bank guarantee or irrevocable letter of credit cannot be interfered with except in case of fraud or in case where question of apprehension of irretrievable injustice arise.

The commitments of banks must be honoured free from interference by Courts. Otherwise, trust in internal and international commerce would be irreparably damaged. Only in exceptional cases like that of fraud or to avoid irretrievable injustice, the Court should interfere.

There should be prima facie a case of fraud and special equities in the form of preventing irretrievable injustice between the parties. Mere irretrievable injustice without a prima facie case of established fraud is of no consequence in restraining the encashment of bank guarantee.

The rule is well‑established that a bank issuing a guarantee is not concerned with the underlying contract between the parties. Duty of bank under a performance guarantee is created by the document itself. Once the documents are in order, the bank giving the guarantees must honour the same by making payment. Ordinarily, unless there is an allegation of fraud or the like, the Courts will not interfere directly or indirectly to withhold payment, otherwise trust in commerce, internal and international, would be irreparably damaged. But that does not mean that parties to the underlying contract cannot settle their dispute with respect to allegations of breach by resorting to litigation or arbitration as stipulated in the contract. The remedy arising ex‑contract is not barred and the cause of action for the same is independent of enforcement of the guarantee.

In banking system, a bank guarantee has a dual aspect. In the case of hank guarantee, banker is the promisor. It is a contract between bank and beneficiary by a third party. Now, it is a well‑known business transaction in the world of commerce and has become the backbone of banking system. Its enforceability depends upon the terms under which guarantor has bound himself. He cannot be made liable for more than what he has undertaken. Therefore, the bank guarantee is in the nature of a special contract depending upon the happening of a specific event and when once it is discharged, the guarantee comes to an end. Obligations arising under the bank guarantee are independent of the obligations arising out of specific contract between parties.

It was only in exceptional cases that the Courts would interfere with the machinery of irrevocable obligations assumed by banks. They are the life blood of international commerce. The machinery and commitments of banks are on a different level. They must be allowed to be honoured free from interference by the Courts. Otherwise, trust in international commerce could be irreparably damaged.

As regards contract of guarantee, rights and liabilities of parties are to be determined with reference to terms and conditions of‑the ‑guarantee. The guarantor cannot take advantage of any condition incorporated in the principal agreement, unless same is reflected in a contract of guarantee executed by guarantor, as liabilities of the principal and guarantor, though arising from same transaction are distinct. In an action by a creditor against a guarantor, the former is only required to establish the liability of the principal debtor and occurrence of default or breach of the terms leading to the liability. The guarantor cannot resort to technicalities to defeat the claim of creditor. Even where the contract becomes unenforceable against the principal debtor, guarantor would still be liable under the surety bond he had executed, unless there was any covenant to the contrary.

Extraneous claims and counter‑claims do not bar the enforcement of bank guarantee. The enforcement depends upon its terms and conditions. If bank guarantees are unconditional, there is no other option for bank and more so, the bank would have no defence, when its guarantee is sought to be enforced. The guarantee as provided could be scanned to ascertain, whether it is conditional, unconditional or an autonomous contract by itself or otherwise' If it is found unconditional, except in cases where a fraud has been alleged and noticed by bank, the commitment is to be honoured. By enunciating the general principle of non‑interference by Courts in respect of bank guarantee and letter of credit, the Courts only intended that international trade and commerce should function smoothly without interference from Court. At the same time, the Courts expected that merchants and traders in international trade and commerce would honour their respective commitments and the business honesty would be maintained By theory of non‑interference, certainly the Courts did not intend that international trade and commerce should flourish by adopting dishonest unpleasant practice. These trade practices and commitments by banks are treated on a different level by Courts and are allowed to function without interference from Courts only with the view that the trust in international commerce is not damaged in any way and not for encouraging mala fide activities of unscrupulous traders. If so, fraud or special equity arising out of the peculiar situation of the case could not have been made exception to the general principles of non‑interference by Courts.

Province of West Pakistan v. Mistry Patel & Co. PLD 1969 SC 80; W.J. Younie and others v. Tulsi Ram Jankiram and others AIR 1942 Cal. 382; Farr Smith & Company Ltd. v. Messers Limited (1928) 1 K B 397; Printpac (Pvt.) Ltd. v. Rice Export Corporation of Pakistan Ltd. 1992 MLD 1161; Messrs Jamia Industries v. Messrs Pakistan Refineries Limited, Karachi PLD 1976 Kar. 644; Sirafi Trading Establishment v. Trading Corporation of Pakistan Limited 1984 CLC 381; Law Relating to Bonds and Guarantees by S.N. Gupta, Vol. II, 2nd Edn., p.288; United Commercial Bank v. Bank of India AIR 1981 SC 1426; National Construction Company Limited v. Aiwan‑e‑Iqbal PLD 1994 SC 311; MacDonald Layton & Co. Ltd. v. Pakistan Service Limited and others 1983 CLC 2252; Pakistan Engineering Consultants v. Pakistan International Airlines Corporation and BCCI and others 1993 CLC 882; Lord Denning, Edward Owen Engineering Ltd. v. Barclays Bank International Ltd. (1978) 1 AER 976; Punjab National Bank Ltd. v. Vikram Cotton Mills Ltd. (1970) 50 Comp. Cas. 927 (SC); United Commercial Banks v. Bank of India and others AIR 1981 SC 1526; The Interads Advertising (P) Ltd. v. Palmex Enterprises (1983) 58 Comp. Cas. 550; Interads Advertising (P.) Ltd. v. Bentrex & Co. and others (1983) 53 Comp. Cas. 646; United Commercial Bank v. Hanuman Synthetics Ltd. and others (1987) 61 Comp. Cas. 245; Tarapore & Co. v. V/O Tractoro-export (1970) 40 Comp. Cas. 447 (SC); Hamzeh Malas & Sons v. British Imex Industries Ltd. (1958) 2 QB 127 (CA); B.S. Aujla Co. (P.) Ltd. v. Kaluram Mahadev Prasad AIR 1983 Cal. 106; United Commercial Bank v. Bank of India (1982) 52 Comp. Cas. 186 (SC); Sztejn v. Henry Schroder Banking Corporation (1941) 31 NYS 2d 631; United Commercial Bank v. State Bank of India (1982) 52 Comp. Cas. 198 (SC); U.P. Cooperative Federation Ltd. v. Singh Consultants & Engineers (P) Ltd. JT 1987 (4) SC 406; Nangia Construction (India) (Pvt.) Ltd. v. National. Buildings Construction Corporation Ltd. and others II (1990) 51 BC; 41 (1990) DLT 359; G.S. Atwal & Co. (Engineers) (Pvt.) Ltd. v. National Projects Construction Corporation Ltd. (1990) 69 SC 601; S.C.I.L. (India) Ltd. v. Indian Bank (1994) 79 Comp. Cas. 693; Suresh Arjundas Bekhtiani v. Union of India (19.92) 74 Comp. Cas. 192 (Bom.); Hindustan Paper Corporation Ltd. v. Keneilhouse Angami (1990) 68 Comp. Cas. 361 (Cal.); Jaipur ?.Jdyog Ltd. v. Punjab University (1980) 82 Punj. LR 597; State Bank of India v. Jaipur Udyog AIR 1986 Delhi 357; Taj Trade and Transport Co. Ltd. v. Oil and Natural Gas Commission (1994) 80 Comp. Cas. 740; syndicate Bank v. Vijay Kumar (1992) 74 Comp. Cas. 597; The Law Relating To Bank Guarantees in India by Dr. Mohammad Akrarn Mir. The Banking Law in Theory and Practice, Third Edn., Vol. 2 by S.N. Gupta, John F. Dolan. Letters of Credit. Art.5 Warranties. Fraud and the Beneficiary's Certificate; The Business Lawyer, Vol. 41 No.2, pp. 186, 347; Michhal Stern, The Independence Rule in Stand by Letters of Credit; The University of Chicago LR Vol. 52, 185; Nussbaum, Temporary Restraining Orders and. Preliminary Injunctions; The Federal Practice. 26 SWLJ 265, 273 (1972) cited by Edward L. Symons, JR., Letters of Credit. Fraud, Good Faith and the Basis or Injunctive Relief Tulance Law R. Vol.54, 1979, p.380 (1980); National Thermal Power Corporation Limited v. Flowmore Private Ltd. and another (1995) 84 Comp. Cas. 97; Svenska Handelsbankjen v. Indian Charge Chrome (1994) 79 Comp. Cas. 589 (SC); U.P. Cooperative Corporation Ltd. v. Singh Consultants and Engineers (Pvt.) Ltd. (1989) 65 Comp. Cas. 283 (SC); Hindustan Steel Works Construction Ltd. v. G.S. Atwal & Co. (Engineers) (Pvt.) Ltd. (decided on September 13, 1995); Larsen and Toubro Ltd. v. Maharashtra State Electricity Board and others (1996) 85 Comp. Cas. 214; State of Maharashtra and another v. Messrs National Construction Company, Bombay and another (decided on July 9, 1969): Hindustan Steel Works Construction Ltd. v. Tarapore & Co. and another (decided on January 6, 1996); (1982) 52 Comp. Cas. 1986; R. D. Harbottle (Mercantile) Ltd. v. National Westminster Bank (1977) 2 All ER 862; U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineering (P.) Ltd. (1987) 8 Reports (SC) 567; Messrs Huffaz Seamlen Pipe Industries Ltd., Karachi v. Messrs Security Leasing Corporation Ltd. Karachi Civil Petition No.292‑K of 2001; The Law Relating to Bank Guarantees in India by Dr. Mohammad Akram Mir and C.P. No.383‑K of 2002 ref.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 126‑‑‑"Guarantee"‑‑‑Definition‑‑‑Guarantee is an accessory contract, whereby promisor undertakes to be answerable to promisee for the debt default or miscarriage of another person, whose primary liability to the promisee must exist or be contemplated.

Halsbury's Laws of England. Vol. 20, Fourth Edn., pp.49, 101 ref.

(c) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 126‑‑‑"Contract of guarantee"‑‑‑Origin, history and connotation.

The Law of Guarantees by De Colyar, 3rd Edn., 1897; Butterwirth & Co. 7 Fleet Street Law Publishers by Black Law Dictionary, 4th Edn., p.833; Oxford Bank v. Haynes (1825) 25 Mass (8 Pick) 423, 428 and Law Of Contract by Ansons ref.

(d) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 126‑‑‑Contract of guarantee‑‑‑Essential ingredients‑‑‑Test to determine nature of` guarantee and its effect‑‑‑Guarantee contains the ingredients of "dedicated commitment", "absolute undertaking", "an unambiguous assurance", "unconditional willingness", "definite certainty", "compliance without objections", "sacred obligation" and "defined responsibility" ­Nature of guarantee and its binding effect can be well judged on the basis of such ingredients constituting a guarantee.

(e) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss. 126, 10, 17 & 18‑‑‑Contract of guarantee‑‑‑Grounds available for avoiding guarantee‑‑‑Guarantee once given cannot be avoided, except on the ground of fraud or misrepresentation.

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

‑‑‑‑S. 126‑‑‑Bank guarantee‑‑‑Nature‑‑‑Liability of guarantor and surety‑‑­Extent‑‑‑Bank guarantee in Banking system has dual aspect, same being a contract between Bank and beneficiary by a third party‑‑‑Enforceability of Bank guarantee depends upon the terms under which guarantor has bound himself, who cannot be made liable beyond what he gas undertaken‑‑­Obligations arising under Bank guarantee are independent of the obligations arising out of the specific contract between parties‑‑‑Bank guarantee comes to an end, once same is discharged.

(g) Words and phrases‑‑

‑‑‑‑"Guarantee"‑‑‑Definition.

Halsbury's Laws of England, Vol. 20, Fourth Edn., pp.49, 101; ref.

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

‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Contract Act (IX of 1872), S. 126‑‑‑Arbitration Act (X of 1940), S.20‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Refusal of Court to restrain encashment of performance Bank guarantees while allowing application under S. 20 of Arbitration Act, 1940‑‑‑Validity‑‑­Bank guarantee being an autonomous contract, imposed an absolute obligation on Bank to fulfil its terms and payment where-under became due on happening of a contingency on which guarantee became enforceable‑‑­Encashment of Bank guarantee had no nexus with the spirit of contract executed between parties being an independent contract containing its own terms and conditions to be performed by concerned parties‑‑‑Encashment of Bank guarantee had nothing to do with alleged dispute between petitioners and respondent, which must be decided independently on the basis of terms and conditions of that contract without involving the contract of Bank guarantee---Demand for enforcing Bank guarantees had been trade by respondent strictly in accordance with the terms as stipulated in the guarantees itself‑‑‑Neither there was any allegation of fraud against beneficiary of which Bank had notice nor there was any special equity giving rise to a strong prima facie arguable case against enforcement of Bank guarantees‑‑‑Impugned judgment was strictly in accordance with settled law hardly calling for any interference‑‑‑Supreme Court dismissed the petition for leave to appeal being devoid of merits.

Messrs Jamia Industries Limited v. Messrs Pakistan Refinery Limited PLD 1976 Kar. 644 distinguished.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Leave granting order passed by Supreme Court does not lay down a law to be followed.

M. S. Baqir, Bar‑at‑Law, Advocate Supreme Court and Imtiaz Muhammad Khmi, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 11th July, 2002.

P L D 2003 Supreme Court 212

Present: Syed Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ

Messrs KAPUR TEXTILE MILLS LIMITED‑‑‑Petitioner

Versus

BANKERS EQUITY LIMITED‑‑‑Respondent

Civil Petition No.3076 of 2001, decided on 26th November, 2002.

(On appeal from judgment dated 8‑10‑2001, passed by the Lahore High Court, Lahore in F.A.O. No.294 of 2001).

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

‑‑‑‑Ss. 12 & 9(4)‑‑‑Civil Procedure Code (V of 1908). O.XXXVII, R.2‑‑­Constitution of Pakistan (1973), Art.185(3)‑‑‑Suit for recovery of money was decreed ex parse‑‑‑Summons were issued to the judgment‑debtor after filing the suit as required under the law and subsequently publication of the same was made in leading newspapers but none appeared‑‑‑Record showed that on the date the decree was passed no one appeared before the Trial Court, nor any application for leave to defend the suit was filed, and the Banking Court decreed the suit as provided under S.9(4) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 and O.XXXVII, R.2, C.P.C. as the averments made in the plaint were verified on oath and the suit was decreed as prayed‑‑‑Application for setting aside the said decree on the ground that correct address of the defendant had not been given in the plaint, therefore, the decree was not served in accordance with law‑‑‑High Court dismissed the application on the ground of limitation holding that the defendant had, in fact, been served‑‑‑Defendant, inter alia, contended that the Courts below had not considered the case in its true perspective; that the applications for setting aside the decree was in time and the judgment of the High Court had resulted in miscarriage of justice and that the defendant had intimated the plaintiff (Bank) about the change of the address‑‑‑Validity‑‑‑Essence of the facts clearly showed that Court had adopted proper course of service of the defendant in the suit and defendant in his own wisdom moved an application before the Court for setting aside the ex parte decree which was time‑barred‑‑‑Judgment of the High Court was well‑reasoned and was based on the proper appreciation of the material available on record‑‑Neither question of misreading or non‑reading of the material was available nor question of general public importance was involved in the case‑‑‑Petition being without merit and substance was dismissed and leave to appeal was declined.

Ali Sibtain Fazli, Advocate Supreme Court with Mahmood A Qureshi, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 26th November, 2002.

P L D 2003 Supreme Court 215

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

SAUDI-PAK INDUSTRIAL AND AGRICULTURAL INVESTMENT COMPANY (PVT.) LTD., ISLAMABAD ---Appellant

Versus

Messrs ALLIED BANK OF PAKISTAN and another----Respondents

Civil Appeals Nos. 185 and 186 of 2002, decided on 27th November, 2002.

(On appeal from the judgment, dated 21-12-2001 of Lahore High Court, Lahore passed in R.F.A. No. 83 of 1996).

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

--S. 126---Bank guarantee---Default---Liquidated damages ---Interest--­Rights and liabilities of the parties---Determination---Guarantee rights and liabilities of the parties, are determined with reference to the terms and conditions of the guarantee and a contract of guarantee is to be strictly construed in terms of the guarantee---Guarantee, in the present case, unequivocally postulated that the total responsibility of the Bank was restricted to a specified amount---Bank irrevocably and unconditionally undertook to pay the said amount to the plaintiff on demand---Nothing was brought on record to show that the plaintiff had sustained damages on the ground of default---Effect---Liquidated damages, as a rule, required the positive evidence to show that the actual loss was suffered by the party claiming the damages and even fixed amount stipulated for liquidated", damages could not be recovered if the quantum of actual loss was not proved---Plaintiff, in circumstances, was neither entitled to any interest nor to any amount as liquidated damages.

(b) Interpretation of document---

---Fundamental --Fundamental principle.

It is a fundamental principle of interpretation of documents and statutes that they are to be interpreted in their entire context following a full Consideration of all provisions of the document or statute, as the case may that every attempt shall be made to save the document and for tai purpose a difference between general statements and particular statements of the document be differentiated properly to save the document rather to nullify it, that no provision of the document be read in isolation or in bits and pieces, but the entire document is to be read as a whole to gather the intention of the parties, that the Court for this purpose can resort to the correspondence exchanged between the parties, that the Court shall lean to the interpretation, which will effectuate rather than one, which will invalidate an instrument.

Allah Bakhsh and another v. Muhammad Ishaque and another PLD 1984 SC 47; Societe Generale De Surveillance S.A. v. Pakistan 2002 SCMR 1694; Messrs Pakistan State Oil Company Limited v. Muhammad Tapir Khan and others PLD 2001 SC 980; Sandoz Limited and another v Federation of Pakistan and others 1995 SCMR 1431; House Building Finance Corporation v. Shahinshah Hamayun Corporative House Building Society and others 1992 SCMR 19; Ghazanfar Hussain v. Rahmat Bibi 1981 CLC 310; Habib Bank Limited v. Malik Atta Muhammad and 4 others 2000 CLC 451; Haji Adam Ali Agaria v. Asif Hussain and 2 others 1996 MLD 322; Mst. Iqbal Begum v. Abdul Ghaffar and others 1995 CLC 105; Saeed Mahmood v. Halima Bai 1990 MLD 1789 and Najmul Hassan Farooqui v. Messrs United Carpets Limited 1990 ALD 412 ref.

(c) Contract Act (IX of 1872)-

----S. 126---Contract of guarantee---Principles of construction. The principles of construction governing contracts in general apply equally to contracts of guarantee. Dealing with a guarantee as a mercantile contract, the Court does not apply to it merely technical rules, but construes it so as to reflect what may fairly be inferred to have been the parties, real intention and understanding as expressed by them in writing, so as to give effect to it.

Halsbury's Laws of England 4th Edn., Vol. 20, para. 143 ref.

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

---S. 126---Bank guarantee---Contention of the Bank was that the conduct of the plaintiff was mala fide, inasmuch as for about six years the plaintiff did not take any step towards recovery of decretal amount and that the plaintiff held 33% shares in the company---Validity---Responsibility of the Bank, in terms of the guarantee, would not become inoperative and it was the right of the plaintiff to seek remedy against the respondent, irrespective of its share, if any, in the company.

Dr. Parvaiz Hasan, Advocate Supreme Court, Umar Ata. Bandial, Advocate Supreme Court, Zakaullah, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record for Appellants (Respondents in C.A. No. 186 of 2002).

Raja Muhammad Akram, Advocate Supreme Court, Ejaz Muhammad Khan, Advocate-on-Record for Respondents (Appellant in C.A. No. 186 of 2002).

Dates of hearing: 19th and 20th September, 2002.

P L D 2003 Supreme Court 224

Present: Mian Muhammad Ajmal, Tanvir Ahmed Khan and Sardar Muhammad Raza Khan, JJ

STATE through Advocate‑General, N.‑W.F.P., Peshawar‑‑‑Petitioner

Versus

MUHAMMAD SHAFIQ‑‑‑Respondent

Criminal Petition for Leave to Appeal No. 112‑P of 2002, decided on 25th October, 2002.

(On appeal from the judgment dated 10‑9‑2002 of the Peshawar High Court, Peshawar, passed in Criminal Appeal No.289 of 2002).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss. 6 & 7‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Case remanded by High Court for retrial before an ordinary Court‑‑‑Validity‑‑‑High Court had set aside the judgment of the Special Judge, Anti‑Terrorism Court and remanded the case for retrial to an ordinary Court on the ground that the murder had taken place at a deserted place out of personal enmity which had no nexus with Ss.6 & 7 of the Anti‑Terrorism Act, 1997‑‑‑For bringing the case within the ambit of the said Act it is not necessary that the commission of murder must have created panic and terror among the people‑‑‑Courts have only to see whether the terrorist act was such which would have the tendency to create sense of fear or insecurity in the minds of the people or any section of the society‑‑‑Such act even was not required to have taken place within the view of general public so as to bring it within the compass of the Anti‑Terrorism Act, 1997‑‑‑What had to be seen was the psychological impact created upon the minds of the people‑‑‑Where an act having taken place in a barbaric and gruesome manner had created fear and insecurity, it would certainly come within the purview of the said Act‑‑‑Murder in the present case was committed by the accused by sprinkling petrol on the person of the deceased and also by firing at him with his kalashnikov‑‑‑Body of the deceased was completely charred and the bones of his both hands and forearms were burnt‑‑‑Death of the deceased had occurred apart from the fire‑arm injury due to intense pain and difficult breathing‑‑‑Charred body of the deceased when brought for funeral rites in the locality of his residence would have certainly caused shock, fear and insecurity among the people of the vicinity on seeing the barbaric and callous manner in which the human body had been mutilated‑‑‑Additionally, trial in the case had resulted in the conviction of accused by the Special Court and the impugned order had been passed in appeal by High Court‑‑‑Special Court was presided over by a Sessions Judge appointed by the Government after consultation with the Chief Justice of the High Court concerned and the provisions of the Code of Criminal Procedure, 898 were made applicable to the proceedings before a Special Court which Would be deemed to be a Court of Session by virtue of S.32 of the Antiterrorism Act, 1997‑‑‑No prejudice whatsoever, thus, had been caused to the accused in his trial by the Special Court‑‑‑Petition for leave to appeal was consequently converted into appeal and allowed‑‑‑Impugned judgment was et aside and the case was remanded to High Court to decide the appeal on merits.

Mst. Raheela Nasreen v. The State and another 2002 SCMR 908 ref.

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

‑‑‑S. 6‑‑‑"Terrorist act"‑‑‑Connotation‑‑‑Commission of act must not have necessarily created panic and terror among the people‑‑‑Courts have only to see whether the terrorist act was such which would have the tendency to create sense of fear or insecurity in the minds of the people or any section of society and its psychological impact on their minds‑‑‑Such act also must not have necessarily taken place within the view of general public‑‑‑Act having taken place in a barbaric and gruesome manner which has created fear and insecurity certainly falls within the purview of the Anti‑Terrorism Act.

Mst. Raheela Nasreen v. The State and another 2002 SCMR 908 ref.

Jehanzeb Rehman, Advocate‑General, N.‑W.F.P. with Haji M.A. Qayyum Mazhar, Advocate‑on‑Record for Petitioner.

Zahoorul Haq, Advocate Supreme Court with S.Safdar Hussain, advocate‑on‑Record for Respondent.

Date hearing: 25th October, 2002.

P L D 2003 Supreme Court 228

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogar, JJ

MUHAMMAD ASHRAF‑‑‑Petitioner

Versus

QAMAR SULTANA‑‑‑Respondent

Civil Petition No. 1732 of 2002, decided on 22nd October, 2002.

(On appeal from the judgment dated 23‑9‑2002 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in S.A. O. No. 12 of 2002).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S.13(6)‑‑‑Default in payment of rent‑‑‑Order of Rent Controller to deposit the arrears and current rent by the tenant‑‑‑Non‑compliance of order of Rent Controller by the tenant‑‑‑Striking off defence of the tenant ‑‑‑Validity‑‑­Rented property belonged to the father of the landlord on whose death the same fell to the share of landlord through a partition‑‑‑Tenant, admittedly failed to comply with the order for deposit of rent passed by the Rent Controller‑‑‑Tenant, thus, became a wilful defaulter‑‑‑Order striking off the defence of the tenant was rightly passed by the Rent Controller and maintained by both the Appellate Courts‑‑‑Supreme Court declined interference in circumstances.

Abdul Sattar Memon v. Khatri Karim Muhammad 2000 SCMR 1952 ref.

Nasir Saeed Sheikh, Advocate Supreme Court instructed by Ejaz Muhammad Khan. Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd October, 2002.

P L D 2003 Supreme Court 231

Present: Nazim Hussain Siddiqui, Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

Qazi MUHAMMAD HAYAT and others‑‑‑Appellants

Versus

DAD MUHAMMAD and others‑‑‑Respondents

Civil Appeal No.773 of 1997, decided on 29th October, 2002.

(On appeal from the judgment dated 3‑4‑1996 of the Peshawar High Court, Peshawar, passed in Writ Petition No.63 of 1995).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(6)‑‑‑Default in payment of rent‑‑‑Denial of relationship of landlord and tenant‑‑‑If a party denies the relationship of landlord and tenant, the Rent Controller had to resolve the question of relationship of landlord and tenant before passing any order under S. 13(6) of the Ordinance for deposit of rent‑‑‑Tenant, in the present case, had admitted in his written statement the payment of rent to a lady, predecessor‑in‑interest of the landlord, though it was stated that the said payment was made at the asking of the real owner‑‑­Rent Controller, in circumstances, taking all the aspects of the case into consideration, passed a just order for the deposit of rent in Court with the rider that the same would be disbursed to the real owner‑‑‑Person, at whose asking tenant was paying rent to the predecessor‑in‑interest of the landlord never entered the present litigation‑‑‑Subsequent order of the Rent Controller recalling his earlier order simply on an oral request of tenant, could not be given any credence in circumstances.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Non‑compliance of order of deposit of arrears of rent‑‑‑Rent Controller passed order of ejectment ‑‑‑Tenant, instead of availing the statutory remedy of appeal provided under S.15 of the Ordinance filed Constitutional petition before High Court‑‑‑High Court, without dilating upon the maintainability of the Constitutional petition and without considering the distinguishing features of the case, accepted the same‑‑­Supreme Court, set aside the judgment of High Court and allowed the tenant three months' time to deliver the peaceful possession of the premises to the landlords.

Qazi Naseer‑ud‑Din (Appellant No.3 in person on Power of Attorney).

Haji Maqsood Ahmad, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 29th October, 2002.

P L D 2003 Supreme Court 235

Present: Nazim Hussain Siddiqui and Tanvir Ahmed Khan, JJ

BANI BEGUM and others‑‑‑Petitioners

Versus

MUHAMMAD AZAM KHAN and others‑‑‑Respondents

Civil Petition for Leave to Appeal No.2488 of 2001, decided on 29th November, 2002.

(On appeal from the judgment dated 30‑7‑2001 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Civil Revision No.223‑D of 1991).

Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.19‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Transaction of landed property through oral mutation‑‑‑Provision of S.42, West Pakistan Land Revenue Act, 1967, does not require the signatures upon the mutation either of transferor or the transferee‑‑‑Such mutation does constitute acknowledgement within meaning of S.19, Limitation Act, 1908‑‑‑Principles.

The mortgagees acquired mortgagee rights by means of oral sales effected through mutations. The transfer of rights through oral sales by effecting a mutation is a recognized mode of transaction. The proceedings regarding mutations are regulated under the West Pakistan Land Revenue Act, 1967. Section 42 of the Act prescribes procedure for making record. The mutation literally means "a change or an alteration". It is made to bring a change in the Revenue Record with the object of bringing it up to date. The requirement of law under section 42 of the Act is that an enquiry should be made in the Jalsa‑e‑Aam (common assembly) to which the mutation relates and the persons whose rights are going to be acquired shall be identified by two respectable persons and preferably by Lambardars or Members of Union Committee. The Revenue Officer is required to get their signatures on the register of mutations. However, the signature or thumb‑impression by the transferor or the transferee is not required as mandated by the instructions issued to the Revenue Officers.

Section 19, Limitation Act, 1908 requires acknowledgement in writing signed by the party for the fresh start of period of limitation. However, the situation in the present case is totally different as the Revenue law does not require affixation of signature either by the transferor or the transferee while effecting sale of landed property through oral mutation.

The petitioners in the present case cannot blow hot and cold at the same time. They are admitting that they had got only mortgagee rights. They now cannot come with a plea that there was no acknowledgement of mortgagee within the terms of section 19 of the Limitation Act, 1908, as the same was not signed. How the mutation proceedings can be signed by a party when the law does not require the same. Section 42 of the West Pakistan Land Revenue Act, 1967 only requires the verification from two respectable locals of the Revenue estate. In the circumstances, the petitioners cannot raise the plea that there was no acknowledgement of mortgagee rights.

Section 42 of the West Pakistan Land Revenue Act, 1967 under which mutations are sanctioned, does not require the signatures upon the mutation either of transferor or the transferee.

Zarif Khan and others v. Muhammad and others PLD 1983 Pesh. 58; Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others PLD 1991 SC 524; Samar Gul v. Central Government and others PLD 1986 SC 35 and Said Shah v. Absaruddin and 6 others 1999 SCMR 70 ref.

Muhammad Munir Paracha, Advocate Supreme Court for Petitioners.

Zaheer Ahmed Qadri, Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing: 7th November, 2002.

P L D 2003 Supreme Court 240

Present: Iftikhar Muhammad Chaudhry, Sardar Muhammad Raza Khan and Falak Sher, JJ

KHUDA BAKHSH---Petitioner

Versus

MUHAMMAD SAFDAR and another---Respondents

Criminal Petition No. 254 of 2001, decided on 14th November, 2002.

(On appeal from the judgment/order dated 12-6-2001 passed by Lahore High Court, Rawalpindi Bench in Cr.A. No. 178 of 1995 and Murder Reference No.268 of 1995).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to complainant to consider: that whether conclusion of High Court in reducing the sentence from death to imprisonment for life was sustainable on the strength of argument that motive was shrouded in mystery; that whether in the absence of motive the accused was not liable for normal penalty of death as envisaged under S.302(b), P.P.C. in view of the law laid down by Supreme Court in specified cases and that what would be the effect of the judgments in the specified cases because the accused had already undergone the sentence of imprisonment for life in pursuance of the impugned order passed by the High Court.

Ghuncha Gul v. The State 1971 SCMR 368; Waris Ali alias Dulli v. The State 1999 SCMR 1469; Sarfraz alias Sappi v. The State 2000 SCMR 1758; Anees Ahmad alias Muhammad Umer and another v. The State 2002 SCMR 1431; Mst. Razia Begum v. Jahangir and others PLD 1982 SC 302; Bahadur Ali. and others v. The State and others 2002 SCMR 93 and Amir Khan and others v. The State and others 2002 SCMR 403 ref.

Dr. Babar Awan, Advocate Supreme Court (on adjournment) Khuda Bakhsh Petitioner (in person).

Nemo for Respondent No. 1.

Tariq Mahmood Khokhar, Additional Advocate-General, Punjab, Nadeem Warraich, Superintendent, Central Jail Adiala, Rawalpindi for the State.

Date of hearing: 14th November, 2002.

P L D 2003 Supreme Court 243

Present: Qazi Muhammad Farooq, Rana Bhagwandas and Abdul Hameed Dogar, JJ

KHADIM HUSSAIN ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.60 of -002, decided on 24th October, 2002.

(On appeal from the judgment dated 19-7-2001 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Criminal Appeal No. 101-J of 1999/BWP and M.R.No.23 of 1999).

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

----Ss. 364-A & 302(b)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to the accused to consider that whether under the circumstances of the case last seen evidence could be relied upon; that whether the extra judicial confession of accused was voluntary and inspired confidence; that whether the recovery of "Chhuri" at the pointation of accused, which was found stained with blood by the Serologist, could be relied upon and that whether the accused was minor at the time of commission of offence, and if so, whether the death penalty could be awarded to him despite the provisions of S.308, P.P.C.

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

----Ss. 364-A & 302(b)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979). S.10(3)---Appraisal of evidence---Last seen evidence furnished by independent witnesses was truthful and trustworthy--­Extra judicial confession made by accused was voluntary in nature--­Recoveries of the blood-stained "Churri" and the dead body of the deceased at the instance of accused from the places exclusively in his knowledge could not be doubted which were corroborated by the medical evidence---Chemical report about the blood-stained "Chhuri" was positive---School Leaving Certificate about the age of accused showing him below the age of 18 years was a managed document which could not be relied upon---Ground of minority of accused was never agitated during investigation and was an after­thought---Convictions and sentences of accused were upheld in circumstances.

Sardar M. Ghazi, Advocate Supreme Court for Appellant.

Ch. Ghulam Ahmad, Advocate Supreme Court for the State.

Date of hearing: 24th October, 2002.

P L D 2003 Supreme Court 250

Present: Sh. Riaz Ahmed, C. J., Munir A. Sheikh and Muhammad Nawaz Abbasi, JJ

ASGHAR ALI ---Petitioner

Versus

THE STATE through Deputy Collector of Customs, Pakistan Coast Guard, Karachi---Respondent

Civil Petition No. 154 of 2000, decided on 19th December, 2002.

(On appeal from the judgment of High Court of Balochistan, dated 27-12-1999 passed in C.P. No.752 of 1999).

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

----Ss. 156(1)(8), 187 & 2(s)---Smuggling---Attempt a; smuggling--­Ingredients---Seizure of. Pakistan currency from the possess on bf accused on the ground that he at the sea shore, was in the process of taking the said currency out of Pakistan and recovery of foreign currency from the secret cavities of vehicle on which the accused and others, were travelling--­Accused had admitted the possession of Pakistan currency but denied the possession of foreign currency-which was allegedly recovered from the secret cavities of the vehicle in which accused and his companions were travelling---Validity---Attempt to commit an offence was taking steps to do something which if was done was a criminal offence and if the act in consequence of such attempts did not amount to a criminal offence it was not an attempt---Mere preparation to commit an offence was different from an attempt to commit such an offence and the attempt is only contemplated when its three essential ingredients viz. the intention; the preparation and the taking of a deliberate overt act, were available, but before reaching the third stage, the attempt to commit an offence remained incomplete---Intention or preparation to commit the crime if were followed by a physical step for performance of an act towards the commission of the crime, was an attempt but it was not an attempt if the offender after the preparation, failed to consummate commission of offence because of the circumstances beyond his control---Principles---Part of the transaction relating to recovery of foreign currency from the secret cavities of vehicle would constitute an offence under S.156(1)(8) of the Customs Act, 1969 whereas the part relating to the recovery of Pakistan Currency from the possession of the accused while travelling in the territory of Pakistan would not be an offence under the Customs Act. 1969---Seizure of Pakistan currency and registration of case under Customs Act, 1969 to that extent was illegal and consequently, the trial of the accused before the Special Judge Customs and also the adjudication proceedings before the Departmental Authorities would be without jurisdiction and illegal---Order of confiscation of the property in the adjudication proceedings was independent of the verdict given by the Special Court in criminal case but the seizure of Pakistan currency itself being illegal and without jurisdiction, the subsequent proceedings either on the criminal side or before the departmental authorities would be without lawful authority---Order of confiscation of Pakistan .Currency passed by the adjudicating Authority being a void order, was of no consequence and must be ignored---Supreme Court, while maintaining the conviction and sentence awarded to the accused for the charge under S.156(1)(8) of the Customs Act, 1969, for keeping in possession the foreign currency without lawful authority, set aside the conviction and .sentence awarded to him for the charge of smuggling of Pakistan Currency and directed that Pakistan Currency recovered from the possession of the accused and seized under Customs Act, 1969 be immediately released and returned to him in terms of the order of the Supreme Court.

The attempt, abetment or connivance to commit an offence of smuggling would include in the expression "smuggle" which being an offence, is punishable under the provisions of Customs Act, 1969 but the attempt to smuggle has not been specifically defined in the said Act. The intention, preparation, attempt and completion of an act are the essential components of an offence but an attempt to commit an offence in the criminal administration of justice, is a distinct offence which is completed if in consequence to the preparation, an overt act is taken to commit the crime. The preparation to commit an offence is, devising or arranging the means and measures which are necessary to commit the crime but the decision of this mixed question of law and fact always depends upon the circumstances of each case. In short, the attempt to commit air offence is taking of steps to do something which if done is a criminal offence and if the act in consequence of such steps does not amount to a criminal offence, it is not an attempt. The mere preparation to commit an offence is different from an attempt to commit such an offence and the attempt is only completed when its three essential ingredients: firstly the intention, secondly, the preparation and the thirdly the taking of a deliberate overt act, are available but before reaching the third stage, the attempt to commit an offence remains incomplete. The intention or preparation to commit the crime if are followed by a physical step for performance of an act towards the commission of the crime is an attempt but it is not an. attempt if the offender after the preparation, fails to consummate commission of offence, because of the circumstances beyond his control. In the present case except the presence of the accused at sea shore with Pak and foreign currency, there was no evidence to suggest that he was making an attempt to smuggle the currency out of Pakistan and therefore, the answer to the question whether in the given circumstances, he could be charged for an act of smuggling punishable under Customs Act, 1969 and held guilty, would definitely be given in the negative. The prosecution story that accused and his companions were confronted by the officials of coast guard when they were in the process of taking the Pak and foreign currency to the sea shore to smuggle it out of Pakistan but as a result of exchange of firing they could not succeed and the accused alongwith another person was apprehended at the spot with the currency, even if was true, still they had not yet crossed the stage of preparation and completed the offence. There being no prohibition of keeping the Pak currency of any value in possession within the territorial boundaries of Pakistan under the law, the mere fact that accused was found in possession of Pak currency at the seashore would not be an offence and the suspicion that he would be committing an, act of smuggling the currency would not be substituted with proof in absence of positive evidence. In a case in which a person is found in possession of smuggled goods it is for such person to explain the lawful possession of the goods but in a case in which the possession of goods is legal and it is not at all required to be explained, the seizure of such goods would be illegal and further neither the burden of proof can be shifted to the person in whose possession the goods were seized nor a presumption of guilt can be raised in such a case and thus the act of taking of the Pak currency by the accused to the sea shore even if is presumed that he intended to smuggle it out of Pakistan it would not constitute an offence of smuggling under Customs Act, 1969 whereas the recovery of foreign currency from the secret cavities of the vehicle and failure of the accused to explain its lawful possession would give rise to a presumption of guilt under section 187 of the Customs Act, 1969. However, this special provision for raising the presumption of guilt can only be pressed into service after the basic onus of proving the illegal possession of the goods is discharged by the prosecution and no such presumption should be raised without taking into consideration the explanation of the accused and if the explanation given by the accused reasonably casts a doubt in the correctness of allegations. the benefit of such doubt must be given to the accused.

In the present case, the accused was taken into custody with Pak currency within the territory of Pakistan and with no stretch of imagination, it could be said that he, while travelling on the coastal belt, was committing an offence of smuggling of currency. The circumstances under which the accused was arrested with Pak currency and the explanation given by him regarding the possession of currency would make the arrest of the accused the seizure of Pak currency and registration of case for keeping in possession pak currency, illegal.

The accused has claimed the possession of Pak currency but denied the possession of foreign currency which was recovered from the secret cavities of the vehicle in which he and his companions were traveling. Thus the part of the transaction relating to the recovery of foreign currency from the secret cavities of vehicle would constitute an offence under section 156(1)(8) of the Customs Act, 1969 whereas the part relating to the recovery of Pak currency from the possession of accused while traveling in the territory of Pakistan would not be an offence under the Customs Act, 1969, therefore, the seizure of Pak currency and registration of case under Customs Act, 1969 to that, extent was illegal and consequently, the trial of the accused before the Special Judge Customs and also the adjudication proceedings before the departmental authorities would be without jurisdiction and illegal.

Order of confiscation of the property in the adjudication proceedings is independent of the verdict given by the Special Court in the criminal case but the seizure of Pak currency itself being illegal and without jurisdiction, the subsequent proceedings either on the criminal side or before the departmental authorities would be without lawful authority. The order of confiscation of Pak currency passed by the adjudicating authority being a void order, was of no consequence and must be ignored. The facts on the basis of which the order was passed, would not make out a case for exercise of jurisdiction under Customs Act, 1969 and if is allowed to hold field, it would defeat the dictates of justice and law.

Supreme Court while maintaining , the conviction and sentence awarded to the accused for the charge under section 156(1)(8) of Customs Act, 1969, for keeping in possession the foreign currency without lawful authority, set aside the conviction and sentence awarded to him for the charge of smuggling of Pak currency and directed that the Pakistan currency recovered from the possession of the accused and seized under Customs Act, 1969 be immediately released and returned to him in terms of the order passed by Supreme Court.

Muhammad Sarwar and others v. Haji Muhammad Hussain and others 1998 SCMR 1938 ref.

C.B.R. and others v. Khan Muhammad PLD 1986 SC 192 and Muhammad Jehangir v. C.B.R. 1999 CLC 939 distinguished.

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

----Ss. 2(s) & 156---Smuggling---Attempt, abetment or connivance to commit an offence would include in the expression "smuggle", which being an offence, was punishable, but the attempt to smuggle had not been specifically defined in the Customs Act, 1969---Principles.

(c) Criminal trial---

---- Attempt to commit an offence ---Essential ingredients---Attempt to commit an offence was taking of steps to do something which if was done was a criminal offence and if the act in consequence of such attempt did not amount to a criminal offence it was not an attempt---Mere preparation to commit an offence was different from an attempt to commit such an offence and the attempt is only contemplated when its three essential ingredients via. the intention; the preparation and the taking of a deliberate overt act were available, but before reaching the third stage, the attempt to commit an offence remained incomplete---Intention or preparation to commit the crime if were followed by a physical step for performance of an act towards the commission of the crime was an attempt but it was not an attempt if the offender after the preparation, failed to consummate commission of offence because of the circumstances beyond his control---Principles.

Yahya Bakhtiar, Senior Advocate Supreme Court and S.A.M. Qadri, Advocate-on-Record (absent) for Petitioner.

M.K.N. Kohli, Deputy Attorney-General for the State.

Date of hearing: 21st October, 2002.

P L D 2003 Supreme Court 262

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

HAJI MUHAMMAD ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition No.53‑Q of 2002, decided on 10th December, 2002.

(On appeal from the judgment/order dated 11‑11‑2002 passed by High Court of Balochistan, Quetta in Criminal Appeal (ATA) No.94 of 2002).

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

‑‑‑‑Ss. 21‑L & 19(10)‑‑‑Prerequisites for conviction of accused in absentia‑‑­Accused can be convicted/sentenced under S.21‑L of the Anti‑Terrorism Act, 1997, if he absconds and avoids arrest or evades appearance before any inquiry, investigation or Court proceedings or conceals himself and obstructs the course of justice, but before awarding him punishment Court is required to satisfy itself according to S.19(10) of the said Act that such absence of the accused is deliberate.

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

‑‑‑‑S. 21‑L‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Trial Court initially being satisfied with the deliberate absence of accused convicted and sentenced him, but later on being satisfied on the basis of the documentary evidence that his abscondence was not deliberate, it accepted his plea and set aside his conviction, as a result whereof he was put to, face trial of the main case‑‑‑Trial Court had kept the said sentence of accused intact which was unwarranted because conviction was followed by the sentence and if conviction was not sustainable then the sentence also could not be allowed to remain intact, otherwise presumption would be that the plea put forward by the accused for not attending the Court was not found to be acceptable‑‑prosecution had even failed to establish accusation against the accused in the main case and inference could conveniently be drawn that he was not involved in the commission of offence, as such recording conviction in his absence in terms of S.21‑L of the Anti‑Terrorism Act, 1997, was also illegal‑‑‑Petition for leave to appeal was consequently converted into appeal and allowed and the impugned judgment was set aside.

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

‑‑‑‑Ss. 21‑L & 19(10)‑‑‑Conviction of accused in absentia‑‑‑Provisions to be followed strictly ‑‑‑Conviction/sentence in the present case was recorded without providing accused opportunity of hearing and believing the statement of prosecution‑‑‑Where an accused is convicted/sentenced in absentia, Court is bound to follow the relevant provisions of law strictly.

Tariq Mahmood, Advocate Supreme Court and Mehta W.N. Kohli, Advocate‑on‑Record for Petitioner.

Salahuddin Mengal, Advocate‑General, Balochistan for the State.

Date of hearing: 10th December, 2002.

P L D 2003 Supreme Court 266

Present: Tanvir Ahmed Khan, Khalil‑ur‑Rehman Ramday and Falak Sher, JJ

AAMIR IKRAM and 10 others‑‑‑Petitioners

Versus

DISTRICT HEALTH OFFICER, VEHARI and others‑‑‑Respondents

Civil Petitions for Leave to Appeal Nos.2253/L to 2263/L of 2002, decided on 4th December, 2002.

(On appeal from the judgment dated 5‑12‑2001 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.543/1999, 544/1999, 553/1999, 544/1999, 556/1999, 557/1999, 559/1999, 564/1999, 568/1999, 1822/1999 and 1823/1999 respectively).

(a) Punjab Service Tribunals Act (IX of 1974)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan 1973), Art. 212(3)‑‑‑Termination of service‑‑‑Service Tribunal by allowing petitioners' appeals ordered their reinstatement in service, but treated intervening period as extraordinary leave‑‑‑Validity‑‑‑Supreme Court had already granted back‑benefits to other employees of the same Department while accepting their petitions filed against the same impugned judgment‑‑‑Present petitioners were party in the impugned judgment of Tribunal and were aggrieved of the same, but had filed petitions now‑‑‑Observing that Department should have been magnanimous enough to have allowed such benefit to the present petitioners, Supreme Court converted petitions into appeal and allowed all back‑benefits to the petitioners.

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

‑‑‑‑Art. 212(3)‑‑‑Petition for leave to appeal‑‑‑Delay of 146 days. condonation of‑‑‑Supreme Court out of impugned judgment had already granted same relief to other employees of the same Department‑‑‑Delay in present matter should not come in the way of petitioners for dispensation of complete and substantial justice, who were sailing in the same boat.

Muhammad Anwar Ghuman, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.

Dr. Muhammad Abid and Arshad Hussain Bukhari. Law Assistant for Respondents.

Date of hearing: 4th December. 2002.

P L D 2003 Supreme Court 268

Present: Nazim Hussain Siddiqui, Qazi Muhammad Farooq and Hamid Ali Mirza, JJ

ELLAHI BAKHSH---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, RAJANPUR/ELECTION TRIBUNAL, DERA GHAZI KHAN and others---Respondents

Civil Petition for Leave to Appeal No.2505 of 2002, decided on 2nd January, 2003.

(On appeal from judgment dated 4-12-2002, passed by the Lahore High Court, Multan Bench, Multan, in W.P. No.2956 of 2002).

Punjab Local Government Elections Ordinance (V of 2000)---

----S. 14---Disqualification of candidate---Notoriety of disqualification of the returned candidate at the time of polling must be established on record through positive evidence---Where the factum of disqualification was not notorious at the time of polling, the votes secured by the successful candidate could not be thrown away and the candidate securing next highest votes could not be declared elected.

Rashid Ahmed Rahmani v. Mirza Barkat Ali and others PLD 1968 SC 301: Lal Muhammad v. Muhammad Usman and others 1975 SCMR 409; Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; Halsbury's Laws of England, Vol.14, para.549 and Junaid Ahmad Soomro v. Haji Mehboob Ali Bhayo and others PLD 1986 SC 1598 ref.

Karwar Iqbal Ahmad Khan, Advocate Supreme Court and Ejaz Muhammad Khan. Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd January, 2003.

P L D 2003 Supreme Court 271

Present: Qazi Muhammad Farooq and Muhammad Nawaz Abbasi, JJ

MUHAMMAD and 9 others‑‑‑Petitioners

Versus

HASHAM ALI‑‑‑Respondent

Civil Petition No.2461 of 2001, decided on 3rd January, 2003.

(On appeal from the judgment of Lahore High Court, Lahore dated 11‑7‑2001 passed in Civil Revision No. 77‑D of 1991).

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

‑‑‑‑O. XIV, R.1‑‑‑Framing of issues‑‑‑If, on a question of fart, a specific issue required to be framed in the light of the pleadings of the parties was not framed but the parties had produced evidence on the controversial question of fact, the decision could be legally rendered on ,such question without framing the issue.

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

‑‑‑‑O. XIV, R.1‑‑‑Framing of issues‑‑‑Where the pleadings of the parties related a) a controversial question of fact and the parties had led evidence in support of their respective stance and decision on such question could be rendered in the light of evidence available on record, the framing of separate issue and recording of further evidence in the matter was not an essential requirement of law for rendering decision.

Laloo v. Ghulaman 2000 SCMR 1058; Mst. Sughra Bibi v. Asghar Khan 1988 SCMR 4 and Fazal Muhammad Bhatti v. Saeeda Akhtar 1993 SCMR 2018 ref.

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

‑‑‑‑O. VI, R.17 & O.XLI, Rr. 23 & 25‑‑‑West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964), S.19‑‑‑Rejection of plaint‑‑‑Remand of case‑‑‑If an ancillary or incidental relief can be granted on the basis of evidence on the record, the formal amendment in the plaint for inclusion of such a relief can be allowed by the Court at any stage‑‑­Dispute, in the present case, related to the character of the transaction and the witnesses produced by the plaintiff hats stated that the defendants in the suit were in possession of the land as mortgagee whereas the evidence of the defendants was that they having purchased the land were in its possession as owner‑‑‑Interpretation of a document being a mixed question of law and fact, the disputed document, in the present case, was a registered document which could conveniently be interpreted in the light of evidence available on record for determination of the true character of transaction and therefore, in the given situation, it was not at all necessary to remand the case for framing of a specific issue‑‑‑Controversial question relating to the character of the transaction also being question of law and fact could be decided on the present record without recording any further evidence and the omission of seeking consequential relief of possession, could be removed by granting permission for amendment in the plaint even in appeal‑‑‑Omission of prayer of ancillary or consequential relief in the suit was a curable defect and would not materially affect the suit and the plaintiff in case of success in the suit could take necessary steps for redemption of the mortgage through a separate suit under West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 as the case may be.

Laloo v. Ghulaman 2000 SCMR 1058: Mst. Sughra Bibi v. Asghar Khan 1988 SCMR 4; Fazal Muhammad Bhatti v. Saeeda Akhtar 1993 SCMR 2018 and Mehr Din v. Bashir Ahmed Khan 1985 SCMR 1 ref.

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

‑‑‑-O. XLI, R.25‑‑‑Powers of Revisional and Appellate Courts to remand the case in terms of O.XLI, R.25, C.P.C.‑‑‑Scope and extent‑‑‑If the parties had led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point as a pivotal question of fact decided the same in the light of evidence available on record, the remand of the case in appeal or revision for mere reason that a specific issue was not framed on such point was not proper exercise of jurisdiction‑‑‑Where the case was not of the nature in which without framing issue the controversial question regarding nature of transaction whether sale or mortgage could not be decided by the Appellate Court on the basis of evidence available on record, remand of the case by the Appellate Court was not proper‑‑‑High Court, in revision, instead of saving the parties from unnecessary agony of litigation, committed the same mistake and remanded the case to the Trial Court with additional direction of framing of fresh issue and recording of further evidence if need be‑‑‑Proper course for the High Court was to send the case back to the Appellate Court for decision of appeal on merits‑‑­Supreme Court, in circumstances, while setting aside the judgment of the High Court directed that the Appellate Court ,shall decide the appeal afresh on all issues on the basis of available evidence.

Gul Zarin Kiani. Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Anwar, Attorney for Respondent.

Date of hearing: 2nd December, 2002.

P L D 2003 Supreme Court 277

Present: Rana Bhagwandas, Abdul Hameed Dogar and Karamat Nazir Bhandari, JJ

Mst. JEHAN ARA through Attorney---Appellant

Versus

Raja ZAFARULLAH JANJUA---Respondent

Civil Appeal No. 1158 of 2001, decided on 13th December, 2002.

(On appeal from the judgment dated 12-12-2000 of the High Court of Sindh, Karachi, passed in First Rent Appeal No.610 of 2000).

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

----S. 15---Bona fide personal need of the landlady---Landlady could not be non-suited only on the ground of non-examining herself in support of her personal bona fide need and her representation through attorney was not fatal to her Base---Record, in the present case, showed that landlady had been able to establish her case by producing sufficient evidence of her attorney and one witness in support of her contention---Not a single question was put to the attorney of the landlady to rebut the claim of her personal bona fide need--­Witnesses had categorically stated in their evidence that the landlady needed the premises for her personal buns fide need and she had demanded the premises many a time to be vacated but tenant refused to do the same which version was never controverted by the tenant in his evidence---Supreme Court, while accepting the appeal of the landlady allowed 30 days time to the tenant to vacate the demised premises, in circumstances.

Syed Shahenshah Hussain, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Appellant.

Faizanul Haq, Advocate-on-Record for Respondent.

Date of hearing: 13th December, 2002.

P L D 2003 Supreme Court 280

Present: Rana Bhagwandas and Abdul Hameed Dogar, JJ

NAFISUDDIN and another---Petitioners

Versus

SAGHIR AHMAD and another---Respondents

Civil Petition No.999-K of 2002, decided on 16th December, 2002.

(On appeal from the order dated 29-8-2002 of the High Court of Sindh, Karachi, passed in Constitution Petition. No.521 of 2002).

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

----S. 15---Constitution of Pakistan (1973), Art.185(3)---Bona fide personal need of landlord---Statement of landlord on oath that the demised premises was required for his personal rise was not controverted expressly by the tenants---Mere allegation of tenants that landlord who had claimed that he was jobless for the last 8 years, had purchased a building and that he also ran a Marble Factory or carried on his business in the said building, in the absence of any documentary proof, was not a valid piece of evidence and could not be considered for brushing aside the genuine and bona fide claim of the landlord---Observation in the judgment of High Court that on landlord's prayer for consideration of new documents the offer to get the demised, premises inspected by an officer of that Court and to verify the documents regarding the other properties of the landlord was not acceded to by the tenants clearly suggested that tenants had no strong case to defend and thus were rightly non-suited---Findings of fact recorded by the Appellate Court and affirmed by the High Court were based on correct and careful appraisal of evidence determined by the judgments of the two Courts below---No question of law of general public importance emerging from the facts and circumstances of the case raised before the Supreme Court--­Petition for leave to appeal was dismissed, in circumstances.

Hafiz Abdul Baqi, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 16th December; 2002.

P L D 2003 Supreme Court 283

Present: Nazim Hussain Siddiqui, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

PRESIDENT, UNITED BANK LTD. and others---Appellants

Versus

IFTIKHAR HUSSAIN KHAN and another---Respondents

Civil Appeal No. 1324 of 1999, decided on 13th. December, 2002.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 3-12-1998, passed in Appeal No.40(K) of 1998).

United Bank Limited (Staff) Service Rules, 1981---

----R. 37---Dismissal from service---Allegation of misconduct involving misappropriation of funds by employee of the Bank---Service Tribunal reinstated the employee on appeal with all back-benefits ---Validity---Employee having refunded the amount at a very late stage had violated the Rules of the Bank, as such, keeping in view R.37, United Bank Limited (Staff) Service Rules, 1981 total exoneration of the employee from charge was uncalled for but dismissal from service was not warranted---Supreme Court, allowed the appeal of the employee partly and awarded penalty of postponement of promotion of the employee for a period of three years from the date of his reinstatement in service.

WAPDA v. Abdul Waheed 2002 SCMR 753 distinguished.

Ikram Ahmad Ansari, Advocate Supreme Court and M. Shabbir Ghaury, Advocate-on-Record for Appellants.

Abdul Mujeeb Pirzada, Advocate Supreme Court for Respondents No. 1.

Date of hearing: 13th December; 2002.

P L D 2003 Supreme Court 286

Present: Nazim Hussain Siddiqui, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

KARACHI ELECTRIC SUPPLY CORPORATION through Managing Director Karachi---Petitioner

Versus

ABDUL JABBAR CHANNA and others---Respondents

Civil Petitions for Leave to Appeal Nos. 1001-K to 1013-K of 2002, decided on 16th December, 2002.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 20-8-2002, passed in Appeals Nos. 1278(x) to 1290(x) of 1999).

Karachi Electric Supply Corporation (Removal from Service) Ordinance (X of 1999)---

----S. 2(a)---Constitution of Pakistan (1973), Art. 212(3)---Compulsory retirement of employees of Corporation with immediate effect under S.2(a) of the Ordinance---Reinstatement of such employees ordered by the Service Tribunal on appeal---Validity---Employees had contended that they had been compulsorily retired ahead of their tenure and in violation of the terms and conditions of their service settled at the initial stage of their employment; that they had been retired by incompetent Authority, without assigning any reason; that the retirement order had been passed without issuing any show­cause notice, which was in violation of principles of natural justice and that the Corporation had acted in discriminatory manner, inasmuch as number of employees having been removed from service or retired compulsorily, had been again reinstated and given the same jobs---Initial order of appointment issued by the Corporation to the employees did not mention that the service of the employees would be terminated or they would be retired from service without giving any reason---Record showed that all such employees stood confirmed in their respective posts and then subsequently, after earning satisfactory reports and unblemished performance during the service, had been promoted in their respective scales, having reached the stage, without giving any show-cause notice, they had been abruptly ordered to be retired from service---Held, by passing the order of retirement, the Corporation had not only violated the settled terms, and conditions of service of the employees, but at the same time, the order violated the basic principles of audi alteram partem, because no show-cause notice or any opportunity of hearing had been given to the employees---Action of the Corporation, in circumstances, was totally against the law---Corporation had failed to give plausible explanation for the order whereby the employment of as many as twelve confirmed and regular employees, comprising top hierarchy of Engineering Service had been terminated, without any reason---Judgment of the Service Tribunal reinstating such employees was well-reasoned, which was not open to exception---Neither there was misreading of material, nor misconstruction of law and no question of general public importance was involved in the matter---Petition for leave to appeal against reinstatement of the employees was dismissed by the Supreme Court.

A.R. Akhtar, Advocate Supreme Court/Advocate-on-Record for Petitioners (in all Petitions).

Miss Wajahat Niaz, Advocate-on-Record for Respondent No. 1.

Date of hearing; 16th December, 2002.

P L D 2003 Supreme Court 290

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

Raja MUHAMMAD SADIQ and 9 others‑‑‑Appellants

Versus

WAPDA through Chairman, WAPDA House, Lahore and 3 others‑‑‑Respondents

Civil Appeal No. 1746 of 1996, decided on 7th January 2003.

(On appeal from the judgment of Peshawar High Court, Abbottabad Bench, dated 16‑7‑1996 passed in C.R. 7 of 1996).

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

‑‑‑‑S. 34‑‑‑Interest award of‑‑‑Essentials‑‑‑Discretion of Court‑‑‑Scope‑‑­Suit for damages‑‑‑Award of interest under S.34, C.P.C. from the date of institution of the suit till the date of realization of amount is discretionary with the Court and cannot be claimed as of right‑‑‑Interest for the period prior to the institution of the suit can only be claimed and awarded it it is permitted by the substantive law or it is specified in writing or in the demand notice but no such interest prior to the period of suit under S.34, C.P.C. can be granted in a decree passed in the suit for damages 'in absence of the substantive law or if not specified in any form‑‑‑Decree, in suit for damages, having been passed with interest in terms of S.34, C.P.C., the decree‑holder would be entitled to the interest from the date of the suit‑‑‑Principles.

The examination of section 34, C.P.C, shows that interest can be awarded for the period firstly, from the date when the payment was due till the date of institution of suit, secondly from the date of institution of the suit till the date of decree and thirdly, from the date of decree till the realization of decretal amount. The award of interest under section 34, C.P.C. from the date of institution of the suit till the date of realization of amount is discretionary with the Court and cannot be claimed as of right. The interest for the period prior to the institution of suit can only be claimed and awarded if it is permitted by the substantive law or it is specified in writing or in the demand notice but no such interest prior to the period of suit under section 34. C.P.C. can be granted in a decree passed in the suit for damages in absence of the substantive law or if is, not specified in writing in any form. Under section 34, C.P.C. the Court in its discretion can grant interest from the date of suit till the realization of the decree and if the discretion is exercised in favour of grant of interest it; terms of section 34, C.P.C., it shall be deemed from the date of suit and not from any previous date. The decree in the present case with interest was passed in terms of section 34, C.P.C., therefore, the party would be entitled to the interest from the date of suit.

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

‑‑‑‑S. 34 & O.XXI, R.1‑‑‑Interest, award of‑‑‑Discretion of Court‑‑‑Scope‑‑­If a notice is not given to the decree‑holder regarding the deposit of the decretal amount in Court, the decree‑holder can justifiably demand the interest as the deposit of the decretal amount in the Court without notice is not payment of the amount to the decree‑holder in terms of O.XXI, R.1, C.P.C. ‑‑‑Principles.

The Court in exercise of its discretion under section 34, C.P.C. can allow interest from the date of institution of a suit till the date of the decree and also from the date of decree to the date of payment but the Court under this section cannot grant interest for the period prior to the institution of the suit in its discretion as the interest for the period before the date of the suit being a matter of substantive law can only be allowed if there was a statutory provision or an express understanding between the parties specifying the date of interest. In the facts and circumstances of the present case there was no question of grant of interest for the period prior to the institution of suit. The next question would be whether in absence of a specific order, the decree-­holder will get interest from the date of institution of suit or from the date of judgment anti decree and if the decretal amount was deposited in Court without notice, which would be the date of payment of interest to the decree-­holder. In the present case, the amount was deposited in Bank under the direction of the Court before the passing of the decree but no notice of deposit was given to the decree‑holders. The decree‑holders have pleaded knowledge of the deposit of the decretal amount in Bank shortly before its withdrawal and nothing was brought on record to suggest the prior knowledge of the decree‑holders, therefore, in absence of any notice the decree‑holders would be entitled for payment of interest on the decretal amount from the date of suit till the date of withdrawal of amount.

If a notice is not given to the decree‑holder regarding the deposit of the decretal amount in Court, the decree‑holder can justifiably demand the interest as the deposit of the decretal amount in Court without notice is not the payment of the amount to the decree‑holder in terms of Order XXI. rule 1, C.P.C.

Decree‑holders shall be entitled to the payment of interest at the rate specified in the decree on the decretal amount from the date of suit till the withdrawal/realization of the decretal amount.

Abdulali P. Jivani v. Pakistan 1984 CLC 3257; Punjab State v. Ishar Singh AIR 1978 Punj. and Har. 241; Lahore Development Authority v. Own Homes Service Ltd. PLD 1983 Lah. 475; Rangpur Raiyat Bank v. Hesabuddin AIR 1932 Cal. 111; Ramanathan v. Ramanathan AIR 1960 Mad. 207; S.I. Railway Co. v. M.C. Mayilvahanan AIR 1943 Mad. 334 and Mt. Amtul Habib v. Muhammad Yousaf AIR 1918 All. 234 ref.

Muhammad Munir Peracha, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellants.

Ghulzarin Kiyani, Advocate Supreme Court for Respondents.

Date of hearing: 1st November, 2002.

P L D 2003 Supreme Court 295

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza, and Tanvir Ahmed Khan, JJ

HEAVY MECHANICAL COMPLEX (PVT.) LTD., TAXILA---Appellant

Versus

ATTOCK INDUSTRIAL PRODUCTS LTD. RAWALPINDI ---Respondent

Civil Appeal No. 1861 of 1998, decided on 29th November, 2002.

(On appeal from the judgment dated 25-6-1998 of Lahore High Court, Rawalpindi Bench passed in C.R. No. 171 of 1997).

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

----S. 126---Arbitration Act (X of 1940), S.41 & Second Sched., Cl.(4)--­Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to consider the points that when the Bank guarantee had formed part of the principal contract covered by the arbitration clause therein, could such a guarantee be encashed without recourse to arbitration and that when the contract project had already been completed of which respondent was taking full advantage, was that equitable, in any case; on the part of the respondent to encash the Bank guarantee.

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

----S. 126---Arbitration Act (X of 1940), S.41 & Second Sched., Cl.(4)--­"Contract of guarantee" and "mobilization advance guarantee" ---Distinct natures- --Rights and liabilities of the parties in case of contract of guarantee---Determination---Such rights are strictly determined with reference to terms and conditions of the guarantee without recourse to any other instrument or document executed by the parties for any other different purpose---Mobilization advance guarantee is on different footing than guarantees of other nature, in such a case, the liability of surety would be the entire amount of mobilization advance and it would not be restricted to actual amount due from principal-debtor---Principal-debtor in such cases normally receives consideration in advance from the owner/creditors, which he is liable to return in case of any revocation, termination or completion of contract---Bank guarantee being a distinct contract not controlled by the primary contract between the parties, contention that in view of various terms of the primary contract it would be more appropriate if the Court ordered to maintain status quo till the dispute was finally decided in terms of arbitration clause to which the parties had agreed, was repelled for such order would for all practical purposes nullify the contract of guarantee, which was an independent contract.

Messrs National Construction Ltd. v. Aiwan-e-Iqbal Authority PLD 1994 SC 311 and National Grid Company PLC v. Government of Pakistan, Private Power and Infrastructure Board, Ministry of Water and Power through Managing Director and 5 others 1999 SCMR 2367 ref.

K.M.A. Samdani, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

Ali Sibtain Fazli, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents.

Miss Saadia Abbasi, One of the Liquidator.

Date of hearing: 29th November, 2002.

P L D 2003 Supreme Court 301

Present: Nazin Hussain Siddiqui and Syed Deedar Hussain Shah, JJ

PAKISTAN STEEL MILLS CORPORATION, KARACHI---Petitioner

Versus

Messrs MUSTAFA SONS (PVT.) LTD., KARACHI---Respondent

Civil Petitions Nos.524-K and 525-K of 2002, decided on 3rd December, 2002.

(On, appeal from the judgment dated 27-3-2002 of High Court of Sindh, Karachi passed in H.C.As. Nos. 125 and 136 of 2000).

(a) Arbitration Act (X of 1940)---

----S. 30(a)---Misconduct---Misconduct with reference to arbitration proceedings, is interpreted in the sense in which it is not akin to fraud but it means neglect of duties and responsibilities of the arbitrator.

(b) Arbitration Act (X of 1940)---

----S. 30(a)---Allegation of legal misconduct on the part of arbitrator--­Record showed that normal procedure was followed by the arbitrator and all the pleas raised by the parties were considered and answered accordingly--­Neither there was any violation of any principle of natural justice nor any conclusion was drawn in haste, nor the conclusion so drawn shocked the conscience---Arbitrator, in circumstances, had not acted capriciously or arbitrarily.

(c) Arbitration Act (X of 1940)---

----S. 30(c)---Plea of invalidity of award---Principles---Arbitrator is the final Judge on the law and facts and it is not open to a party to challenge the decision of the arbitrator, if it is otherwise valid---If the arbitrator has given his decision in terms of submissions made before him nothing adverse could be attributed to him---Even if there was wrong interpretation of a clause in a contract between the parties, in such a case, arbitrator is not bound to give specific findings on each and every issue nor he is required to state reasons for his conclusion, if the findings are within the parameters of the submissions made before him---Award cannot be set aside on the plea that different view was possible if the facts would have been appreciated with different angle by the arbitrator---Court, while examining the validity of award does not act as a Court of appeal and cannot undertake reappraisal of evidence recorded by the arbitrator in order to discover the error or infirmity in the award---Error or infirmity in the award which renders the award invalid must appear on the face of the award and should be discoverable by reading the award itself---Where reasons recorded by the arbitrator are challenged as perverse, the perversity in ft reasoning has to be established with reference to the material considered by the arbitrator in the award--­Where the arbitrator had minutely examined each and every aspect of the case and party objecting to the award was not able to point out any flaw in the award, the award was valid.

Messrs Joint Venture KG/Rist v. Federation of Pakistan PLD 1996 SC 108 ref.

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

----Arts. 65 & 115---Compensation for increase in rate of wages during the period of performance of the contract---Limitation, starting point of---Patty claiming the compensation had obtained maintenance certificate in respect of the contracts from the engineers appointed by the other party---Certificate issued by the Engineers being final in view of the agreement entered between the parties, time for limitation was as per Art.115 of the Limitation Act, 1908 and claim of the party asking for the compensation fell under Art. 115 of the Limitation Act, 1908.

Akhtar Ali Mehmood, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record (absent) for Petitioner.

Bilal A. Khawaja, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record (,absent) for Respondent.

Date of hearing: 3rd December, 2002.

P L D 2003 Supreme Court 307

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

Mian YAMIN UL HAQUE‑‑‑Appellant

Versus

MUNICIPAL COMMITTEE through Chairman, Abbottabad and others‑‑‑Respondents

Civil Appeal No. 1655 of 1997, decided on 26th November, 2002.

(On appeal from the judgment dated 11‑6‑1997 in W.P. No.30 of 1990 passed by the Peshawar High Court, Circuit Bench, Abbottabad).

(a) North‑West Frontier Province Public Property (Removal of Encroachment) Act (V of 1977)‑‑‑---

‑‑‑‑Ss.12 & 2‑‑‑Constitution of. Pakistan (1973), Art.185(3)‑‑‑Proposed auction of cinema by the Municipal Committee‑‑‑Petitioner had acquired the cinema from the Settlement Department‑in the year 1960 and the respondent Municipal Committee was not shown to be its owner in the Revenue Record‑‑‑Petitioner, against the proposed auction by the Municipal Committee had filed a suit under S.12, N.‑W.F.P. Public Property (Removal of Encroachment) Act, 1977 for declaration' to the effect that he was the owner in possession of the said cinema including the land and Municipal Committee did not have any right to auction the same, therefore, the notice/advertisement showing Municipal Committee as owner of land of the cinema in question and its auction was illegal and of no legal effect and also sought relief of permanent injunction to restrain the Municipal Committee from transferring the building and land through the proposed auction‑‑‑Suit of the petitioner was dismissed by the Tribunal and Constitutional petition against such dismissal was also. dismissed by, the High Court ‑‑‑Validity‑‑­Leave to appeal was granted by the Supreme Court to consider the questions as to whether the Tribunal constituted under S.12 of N.‑W.F.P. Public Property (Removal of Encroachment) Act (V of 1977) was possessed of any jurisdiction to resolve the dispute between the petitioner and respondent ­Municipal Committee, having a direct bearing on the question of ownership; whether the High Court had not fallen into an error of jurisdiction in not considering the transfer of the disputed cinema to the petitioner by the then Settlement Department; and whether in the facts and circumstances of the case, respondent‑Municipal Committee could at all start any adverse action against the petitioner/transferee from the Settlement Department, without first issuing appropriate process against him for the alleged failure on his part to pay the lease money to it and that too before the Civil Courts of plenary jurisdiction.

(b) North‑West Frontier Province Public Property (Removal of Encroachment) Act (V of 1977)‑-----

‑‑‑‑Ss. 2(b), 12, 13 & 3‑‑‑Public property‑‑‑Jurisdiction of Tribunal constituted under the Act‑‑‑Scope‑‑‑Land, in the present case, on which cinema was raised in the year 1918 was owned by the Municipal Committee which was given to a Hindu on tease for ninety years from 1‑1‑1887‑‑‑Said cinema was auctioned by the Settlement Department and transferred to the appellant vide memorandum issued by the Deputy Settlement Commissioner‑‑‑Neither any P.T.O. nor P.T.D. was ever issued in favour of the transferee‑‑‑Contention of the transferee was that he was transferred the property in question and auction proceeds in respect .thereof was recovered by the Settlement Department and neither PTO nor PTD leas required to be issued for the purpose of transferring the title under Settlement Scheme No. II and that Tribunal under S.12, N.‑W.F.P. Public Property (Removal of Encroachment) Act, 1977 ‑had no jurisdiction to declare the Municipal Committee as owner of the said property as the said Tribunal could decide limited question whether the property was not "public property "‑‑‑Validity‑‑‑ Held, land over which they building of cinema was raised became "public property" of the Municipal Committee, as such the land being "public property" only the construction of cinema was evacuee which construction also became unauthorized on the determination of lease and after the transferee had failed to remove the unauthorized structure as per material on record, because of non‑payment of lease money hence liable to be removed under S.3 of the Act‑‑‑Settlement Scheme No.II had nowhere provided that P.T.O. or P.T.P. of the property transferred was not required‑‑­Principles.

Sultan Ali v. Khushi Muhammad PLD 1983 SC 243; Ali Muhammad v. Hussain Bakhsh, and others PLD 1976 SC 37; Atta Muhammad Qureshi v. Settlement Commissioner, Lahore and others PLD 1971 SC 61; Ghias‑ud‑Din v. Iqbal Ahmad and others PLD 1975 Lah. 780; Muhammad Farid and others v. Municipal Committee, Abbottabad PLD 1999 SC 41; Azizuddin v. Muhammad Ismail and others 1985 SCMR 666; Wali Muhammad and others v. District Judge/Special Tribunal, D. I. Khan and others 1990 MLD 815; Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner and others PLD 1964 SC 829; Malik Masood Ahmad v. District Judge and others Civil Petition No.1756 of 2001 and Akbar v. District Council. Abbottabad C.P. No. 1327 of 1998 distinguished.

Mushtaq Ali Tahirkheli, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondent No. 1.

Respondents Nos. 2 to 21 : Ex parte.

Date of hearing: 26th November, 2002.

P L D 2003 Supreme Court 315

Present: Javed Iqbal, Sardar Muhammad Raza and Falak Sher, JJ

Haji MUHAMMAD SALEEM‑‑‑Appellant

Versus

KHUDA BAKHSH‑‑‑Respondent

Civil Appeal No.92 of 2000, decided on 9th October, 21102.

(On appeal from the judgment dated 11‑10‑1999 of the Peshawar High Court, Branch Registry, D.I. Khan in Civil Revision No. 18 of 1999).

(a) Supreme Court Rules, 1980‑‑

‑‑‑‑O. XII, R.2 & O. XIII, R.1‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Appeal to Supreme Court‑‑‑Petition for leave to appeal‑‑­Limitation‑‑‑Period of limitation for filing a direct appeal provided under O.XII, R.2, Supreme Court Rules, 1980, is 30 days, whereas for a petition for leave to appeal under O.XIII, R.1 of the said Rules is 60 days‑‑‑If, a party, under special circumstances, loses his right to file a direct appeal because of limitation, he may invoke Art. 185(3) of 'the Constitution for a petition for leave to appeal‑‑‑Such leave may either be granted or declined by the Supreme Court‑‑‑Where the confusion had arisen on account of valuation of the suit and the petitioner was under the impression that a petition for leave to appeal was to be filed for which the limitation was 60 days but he was told by the Supreme Court Office that the case of the petitioner was the one of regular appeal for which the limitation was 30 days, Supreme Court converted the appeal into a petition for leave to appeal with strict reference to the confusion that had arisen from the valuation of the suit.

Haji Muhammad Nawaz v. Hussain Shah 1990, SCMR 1621; Chairman, N.‑W.F.P. Forest Development Corporation v. Khurshid Anwar Khan 1992 SCMR 1202 and Sardar Abdur Rauf Khan .v. Land Acquisition Collector, Abbottabad 1991 SCMR 2164 ref.

(b) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑--

‑‑‑‑S.13‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Performance of Talb‑i­-Muwathibat by the pre‑emptor‑‑‑Concurrent findings of fact by two Courts ‑‑­Interference by High Court in revision under S.115, C.P.C.‑‑‑Scope‑‑­Principles.

The performance of Talb‑i‑Muwathibat is a pure question of fact which was alleged in the plaint. The plaintiff/pre‑emptor had also examined evidence in this behalf which was duly appreciated by the trial Court as well as the Appellate Court, both of whom had non‑suited the pre‑emptor holding the view that the required question of fact was not proved. The two Courts had appreciated the evidence minutely, had discussed the same in detail and thereafter had arrived at concurrent conclusion. As it was a concurrent finding of fact given by two Courts below, the High Court should not have interfered with simply to substitute its own finding, notwithstanding the mode of appreciation of evidence being subjective. The concurrent finding of fact could be interfered with by the High Court only where such findings were based on 'conjectural presumptions, erroneous assumptions, wrong proposition of law', 'insufficient evidence, misreading of evidence, non­ consideration of material evidence, erroneous assumption of facts, patent errors of law, arbitrary exercise of power and where unreasonable view of evidence had been taken due to non‑reading and misreading of evidence".

In the present case, pre‑emptor, through the evidence on record having failed to prove the performance of Talb‑i‑Muwathibat, two Courts had rightly appreciated the same and High Court should have avoided interference in the exercise of revisional jurisdiction, more particularly when it was not a case of non‑reading, misreading or over‑reading of evidence.

Maj. Rashid Beg v. Rehmatullah Khan PLD 2001 SC 443 ref.

(c) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑Talb‑i‑Muwathibat, performance of‑‑‑Not a mere technicality vis­a‑vis the superior right of pre‑emption ‑‑‑Right of pre‑emption was not activated unless Talb‑i‑Muwathibat was performed ‑‑‑Talb‑i‑Muwathibat could acquire such dimension that the Talb became more important than the superior right of pre‑emption the latter might exist but was useless unless the former was performed ‑‑‑Talb‑i‑Muwathibat was not to be taken lightly and should not be considered as a mere technicality as technicalities were simple procedural matters and had never operated to activate material rights, as in the case of right of pre‑emption.

Amir Jan v. Haji Ghulam Muhammad PLD 1997 SC 883 distinguished.

Said Kamal Shah's case PLD 1986 SC 360 ref.

(d) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑

‑‑‑‑S. 13‑‑‑All the three kinds of Talbs, viz. Talb‑i‑Muwathibat; Talb‑i­-Ishhad and Talb‑e‑Khusumat, one way or the other, axe related to some phenomenon of limitation‑‑‑Principles‑‑‑Important for the plaintiff to, tell the date and time of the performance of Talb‑i‑Muwathibat in the plaint so as to prove the immediate exercise thereof and also as to whether he performed Talb‑i‑Muwathibat in the same meeting and before the dispersal thereof, which is a clear indication of compulsion on the prospective pre‑emptor that he has to make Talb‑i‑Muwathibat in between the period of his having received the information in the, Majlis and the dispersal of the Majlis and beyond such limitation, the Talb if exercised would be invalid‑‑‑Talb‑I-­Ishhad has to be completed within 15 days after the performance of Talb‑i­-Muwathibat‑‑‑Pre‑emptor can be non‑suited for non‑performance of Talb‑I-­Ishhad as well and the performance of the same has to be limited with performance of Talb‑i‑Muwathibat‑‑‑Talb‑i‑Khusumat which is the filing of a pre‑emption suit has to be performed within a period of 120 days—­Principles.

All the three kinds of Talbs, one way or the other are related to some phenomenon of limitation.

According to section 13, Explanation I of N.‑W.F.P. Pre‑emption Act, 1987, Talb‑i‑Muwathibat means "immediate demand by a pre‑emptor in the sitting or meeting (Majlis in which he has come to know of the sale declaring his intention to exercise the right of pre‑emption" the words "immediate demand" put a limitation on the prospective pre‑emptor that he must express his intention immediately. This has also been interpreted as jumping demand but the immediacy can well be gathered that if the man claims his Shuffa in the presence of the company amongst whom he may be sitting when he receives the intelligence, he is the "Shafee", his right not being invalidated unless he delays asserting it till after the company has broken up.

This is. a clear indication of compulsion on the prospective pre­emptor that he has to make Talb‑i‑Muwathibat in between the period of his having received the information in the Majlis and the dispersal of the Majlis. Beyond such limitation, the Talb if exercised would be invalid. The second step is that of Talb‑i‑Ishhad which has to be completed within 15 days after the performance of Talb‑i‑Muwathibat. A pre‑emptor can be non‑suited for non‑performance of Talb‑i‑Ishhad as well and the performance of the latter is to be linked with the performance of the former. The third one is Talb‑I-­Khusumat which is the filing of a pre‑emption suit and that too within a period of 120 days.

In case of involvement of limitation of any kind, the plaintiff has to specify the date and time of the commencement of limitation or the knowledge of the plaintiff in specific so that the limitation is computed accordingly. It has never been made permissible in the realm of civil law that a plaintiff who does not disclose the point of time of his knowledge about the accrual of cause of action, he could be accommodated subsequently in the evidence to satisfy the same. It is important to tell the date and time of the performance of Talb‑i‑Muwathibat in the same meeting and before the dispersal thereof.

The date and time is important to be mentioned in the pleadings because therefrom the performance of Talb‑i‑Ishhad has to be computed so as to be within 15 days. In civil cases in general the point of time qua the accrual of knowledge requires to be mentioned in specific so that nothing is invented during evidence as an afterthought. The cases of pre‑emption should not be an exception to the general law and the day and time of performance of Talb‑i‑Muwathibat which is simultaneous with the accrual of knowledge of transaction should be mentioned in the pleadings so that, at the first instance the immediacy of the Talb‑i‑Muwathibat is appreciated and at the second instance the limitation qua the performance of Talb‑i‑Ishhad is calculated.

Altaf Hussain v. Abdul Hameed alias Abdul Majeed 2000 SCMR 314 distinguished.

Abdul Aziz Kundi, Advocate Supreme Court/Advocate‑on‑Record for Appellant.

Syed Zafar Abbas Naqvi, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent.

Date of hearing: 9th October, 2002.

P L D 2003 Supreme Court 325

Present: Mian Muhammad Ajmal, Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ

BASAI‑‑‑Appellant

Versus

QAIM ALI and 8 others‑-‑Respondents

Civil Appeal No.367 of 1997, decided on 3rd February, 2003.

(On appeal from the judgment of Lahore High Court, Lahore dated 31‑10‑1995 passed in I.C.A. No.27 of 1980).

(a) Law Reform Ordinance (XII of 1972)‑‑‑

‑‑‑‑S. 3(2)‑‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10 & 11‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Intra‑Court appeal‑‑‑Maintainability‑‑‑"Original order"‑‑‑Leave to appeal was granted by the Supreme Court to examine: the contention that order passed in the proceedings under Ss.10 & 11, Displaced Persons (Land Settlement) Act, 1958 being au "original order" within the meaning of S.3(2), Law Reforms Ordinance, 1972, was not subject, to the incidence of appeal, revision/review and as such infra‑Court appeal against the judgment passed in Constitutional jurisdiction by the High Court was competent and the Supreme Court Judgment in Mst. Karim Bibi and others v. Hussain Bukhsh and others PLD 1984 SC 344 as relied upon by the High Court was distinguishable.

Mst. Karim Bibi and others v. Hussain. Bukhsh and others PLD 1984 SC 344 ref.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑--

‑‑‑‑Ss. 10. 11 & 30(3) [as inserted by Evacuee Property and Displaced Persons Laws (Amendment) Ordinance (I of 1972)]‑‑‑Chief Settlement Commissioner or his delegatee, as the case may be, could exercise power under Ss.10 & 11 of the Displaced Persons (Land Settlement) Act, 1958, only in a case in which the allotment was obtained by fraud, misrepresentation or in excess of the entitlement and after the insertion of subsection (3) in S.30 of the said Act, the order passed under Ss. 10 & 11 would be subject to appeal and revision.

Tufail Muhammad v. Muhammad Zia Ullah Khan PLD 1965 SC 269 and Zulfiqar Ali Khan v. Muhammad Mubarak Khan 1970 SCMR 38 ref.

(c) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975). S.3‑‑‑Order of cancellation of allotment having been passed by the Notified Officer after the enforcement of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, could not be challenged through appeal or revision for want of availability of such remedies under the law applicable after repeal and would be an original order‑‑‑Principles.

Muhammad Latif & Co. v. Chief Settlement and Rehabilitation Commissioner PLD 1974 SC 130 ref.

(d) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑-

‑‑‑‑S. 10‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.3‑‑‑Proceedings initiated under S.10, Displaced Persons (Land Settlement) Act, 1958 would not be deemed to be in continuation of the original proceedings giving rise to the order of allotment and the order passed in the subsequent proceedings would not be challengeable by way of an appeal or revision under Displaced Persons (Land Settlement) Act, 1958 after its repeal by virtue of Evacuee Property and Displaced , Persons Laws (Repeal) Act, 1975, therefore, the order passed by the Notified Officer in exercise of his powers as Settlement Commissioner under S.3 of the Repealing Act in the pending proceedings, would be deemed to be an original order for all intents arid purposes.

Muhammad Latif & Co. v. Chief Settlement and Rehabilitation Commissioner PLD 1974 SC 130 ref.

(e) Law Reforms Ordinance (XII of 1972)‑‑‑-

‑‑‑‑S. 3(2)‑‑‑Infra‑Court Appeal‑‑‑Scope‑‑‑Original order‑‑‑Concept‑‑‑Infra Court appeal is competent only in a case in which the statutory remedy of appeal and revision is not available at the time of passing the original order in the said proceedings‑‑‑Order challenged in the writ petition being subject to appeal and review, was not an original order.

Mst. Karim Bibi and others v. Hussain Bakhsh and others PLD 1984 SC 344 ref.

(f) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑‑

‑‑‑‑S. 2(2)‑‑‑Term "proceedings" with reference to S.2(2) of the Ordinance‑‑?Connotation.

The term 'proceedings' is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A 'proceeding' would include every step taken towards the further progress of a cause in Court or before a Tribunal towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put. into motion in order to take cognizance of the‑case. It is indeed a comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment.

Nawab Din v. Member, BOR PLD 1979 SC 846 ref.

(g) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑-

‑‑‑‑Ss. 10 & 11‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑?Intra‑Court appeal‑‑‑Maintainability‑‑‑Proceedings commenced under Ss.10 & 11, Displaced Persons (Land Settlement) Act; 1958 before the repeal of evacuee laws finally culminated in the order passed by the Notified Officer under Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 which contained no provision for an appeal, revision or review against the order of the Notified Officer, the bar under S.3(2), proviso of the Law Reforms Act, 1972 would not be attracted.

Mst. Karim Bibi and othrs v. Hussain Bukhsh and others PLD 1984 SC 344 distinguished.

(h) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑-

‑‑‑‑Ss. 10 & 11‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss.2 & 3‑‑‑Law Reforms Ordinance (XII of 1972), S.3(2)‑‑‑Proceedings, in the present case, commenced on the application under Ss.10 & 11 of the Displaced Persons (Land Settlement) Act, 1958 before the repeal of settlement laws but the same culminated in the final order passed by the Notified Officer in exercise of his powers as Settlement Commissioner in 1977 under Evacuee Property ‑and Displaced Persons Laws (Repeal) Act, 1975 which provided no appeal or revision against the order of Notified Officer and consequently, the order impugned in the Constitutional petition was original as well as final order which could not be challenged before the High Court in its Constitutional jurisdiction‑‑‑Dismissal of Intra Court appeal by the High Court, in circumstances, on the ground of being incompetent was not correct.

Mst. Karim Bibi and others v. Hussain Bukhsh and others PLD 1984 SC 344 distinguished.

(i) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV. of 1975), Ss.2 & 3‑‑‑Law Reforms Ordinance (XII of 1972), S.3(2)‑‑‑Infra‑Court Appeal‑‑‑Maintainability‑‑‑Order impugned in the Constitutional petition having not arisen out of the proceedings in which law applicable after repeal of Settlement Laws provided no remedy of appeal or revision, bar of intra‑Court appeal contained under S.3(2), Law Reforms Ordinance, 1972 would not be applicable to such an order.

Mst. Karim Bibi and others v. Hussain Bukhsh and others PLD 1984 SC 344 distinguished.

Muhammad Zainul Abidin, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Appellant, M.D. Chaudhary, Advocate Supreme Court for Respondents Nos. 1 and 8.

Remaining Respondents : Ex parte.

Date of hearing: 9th October, 2002.

P L D 2003 Supreme Court 336

Present: Iftikhar Muhammad Chaudhry, Actg. C. J., Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

WAPDA through Chairman‑‑‑Petitioner

Versus

SHARAFAT HUSSAIN and others‑‑‑Respondents

Civil Petitions for Leave to Appeal Nos. 1604 to 1612 and 1919 of 2002, decided on 14th January, 2003.

(On appeal from the judgment dated 30‑5‑2002 of the Federal Service Tribunal, Islamabad in Service Appeals Nos.110(R)(CS)/2001, 111(R)(CS)/2001, 112(R)(CS)/2001, 114(R)(CS)/2001, 115(P)(CS)/2001, 116(R)(CS)/2001, 117(R)(CS)/2001, 118(R)(CS)/2001, 122(R)(CS)/2001, 1501(L)/1999).

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

‑‑‑‑S. 17(1‑A)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Compulsory/premature retirement‑‑‑ Mala fides‑‑‑Natural justice, principles of‑‑‑Applicability‑‑‑Civil servants were initially proceeded against departmentally on different charges under Efficiency and Discipline Rules. 1958 nut nothing contrary was proved against them‑‑‑Authority thereafter with mala fide intention, in order to oust civil servants from service, directed their compulsory retirement under S.17(1‑A) of the Act‑‑‑Service Tribunal set aside such order and reinstated civil servants in service for being condemned unheard‑‑‑Validity‑‑‑Civil servants were entitled to right of hearing before passing order of their compulsory retirement from service‑‑­Impugned judgment needed no interference by Supreme Court.‑‑Leave to appeal was refused.

WAPDA through Chairman v. Zulfqar Ali 2002 PLC (C.S.) 128; Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934 and Water and Power Development Authority through Chairman and others v. Muhammad Naveed Iqbal, Line Superintendent and others Civil Petitions Nos. 1254, 1255, 1272 and 1259 of 2002 ref.

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

‑‑‑‑Art. 212(3)‑‑‑Petition for leave to appeal was time‑barred‑‑‑Supreme Court declined to dilate upon such aspect of case after having decided petition on merits.

M. Munir Peracha, Advocate Supreme Court for Petitioners (in all Cases).

Respondent No.1 in person (in C.P. No. 1607 of 2002).

F.K. Butt, Addl. A.‑G. for Respondent No.2 (in all Cases).

Date of hearing: 14th January, 2003.

P L D 2003 Supreme Court 340

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

SAEED AHMAD SHAH (MASOOD AHMED SHAH) and 2 others‑‑‑Petitioners

Versus

FAWAD KHAN and 5 others‑‑‑Respondents

Civil Petition No. 1152 of 2001, decided on 26th July, 2002.

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 19-3‑2001 passed in W.P. No.299 of 2001).

(a) North‑West Frontier Province Local Government Elections Rules, 2000‑‑

‑‑‑‑Rr. 18(2)(3). 71(1) & 82‑‑‑North‑West Frontier Province Local Government Elections Act (VI of 2000), S.14(d)‑‑‑Nomination papers. acceptance of‑‑‑Objection as to character and reputation of returned candidate‑‑‑Same being a question of fact needed recording of evidence, which could be done by Tribunal on an election petition‑‑‑Tribunal on assessment of evidence could pass appropriate order under R.82 of North­ West Frontier Province Local Government Elections Rules, 2000.

(b) North‑West Frontier Province Local Government Elections Rules, 2000‑‑

‑‑‑‑Rr. 71(1) & 82‑‑‑North‑West Frontier Province Local Government Elections Act (VI of 2000), S.14‑‑‑Objection as to acceptance of nomination papers of returned candidate being not qualified to contest election‑‑­Remedy‑‑‑Election of returned candidate can be challenged before Election Tribunal by election petition by a candidate of such election‑‑‑Tribunal can declare election of returned candidate to be void after being satisfied that his nomination was invalid or he was disqualified on nomination day from being elected as a member or Nazim or Naib‑Nazim, as the case may be.

Syed Iftikhar Hussain Gilani. Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioners.

Syed Ali Hassan Gilani, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondents Nos. 1 and 2.

Date of hearing: 26th July. 2002.

P L D 2003 Supreme Court 344

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

IRSHAD HUSSAIN ‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB and others‑‑‑Respondents

Civil Petition No.2525 of 2001, decided on 28th November, 2002.

(On appeal from the order dated 27‑8‑2001 of the Lahore High Court, Lahore, passed in Civil Revision No. 1811 of 2001).

(a) Canal and Drainage Act (VIII of 1873)‑‑‑

‑‑‑S. 3‑‑‑"Nakka" and "new. watercourse" ‑‑‑Not synonymous or interchangeable terms, rather having their own connotation and significance.

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

‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Temporary injunction, grant of‑‑‑An equitable relief based upon well‑known principle of equity.

(c) Equity‑‑--

‑‑‑‑ Equitable relief. grant of‑‑‑Essential factors to be considered by Court‑‑­Guidelines stated.

Expression that "He who would have equity must do equity and give effect to all equitable rights in the other patty respecting the subject‑matter of suit" means that whatever be the nature of the controversy between two definite parties, and whatever be the nature of the remedy demanded, the Court will not confer its equitable relief upon the party seeking its inter­position and aid, unless he had acknowledged and conceded or will admit or provide for, all the equitable rights, claims and demands justly belonging to adverse party and growing out., of or necessarily involved in the subject­matter of the controversy. In other words, the Court gives the plaintiff the relief to which he is entitled only upon condition that he has given or consents to give the defendant such corresponding rights as he also may be entitled to in respect of the subject‑matter of the suit.

Equity Jurisprudence by Story, p.72 and Equity Jurisprudence by Pomeroy, p.3 fol.

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

‑‑‑‑O. XXXIX, Rr. 1 & 2‑‑‑Temporary injunction, grant of‑‑‑Prima facie case not the only exclusive factor‑ ‑‑Balance of convenience and irreparable loss being equally important could not be ignored‑‑‑Duty of Court to examine balance of convenience, irreparable loss as well as behaviour, and conduct of the parties.

M. Bilal, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record (absent) for Petitioner.

Shaukat Hayat. Deputy Collector, Karana Division, Sargodha for Respondent No.2.

Respondent No.4 to person.

Date of hearing: 28th November, 2002.

P L D 2003 Supreme Court 350

Present: Javed Iqbal and Faqir Muhammad Khokhat JJ

FARRAKH SHAHZAD alias PAPPI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition No.380‑‑L and Jail Petition No.113 of 2002, decided on 7th January, 2003.

(On appeal from the judgment dated 4‑4‑2002 of the Lahore High Court, Lahore passed in Criminal Appeal No.612 of 1997).

(a) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑Ss. 302/34 & 324/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Eye­witnesses despite being the father and brother of the deceased could not be labelled as interested witnesses as they lead no enmity to falsely involve the accused in the murder case‑‑‑Oral testimony was supported by medical evidence which was consistent, confidence‑inspiring and worthy of credence‑‑‑Case of acquitted co‑accused, was quite distinguishable as his wilt was not established by any convincing evidence‑‑‑No grave contradiction so as to result in serious miscarriage of justice could be pointed out on behalf of the accused to prosecution evidence‑‑‑Minor discrepancies appearing in evidence with the passage of time could give no benefit to the accused‑‑‑Defence plea was an afterthought and fabricated‑ ‑‑Conclusion arrived at by the Trial Court duly concurred by High Court being well‑based and unexceptionable, did not call for any interference‑‑‑Leave to appeal was refused to accused accordingly.

Iqbal alias Bala v. The State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalid Ahmad v. The State 1976 SCMR 161; Allah Ditta and others v. The State 1970 SCMR 734; Muhammad Akbar' v. Muhammad Khan and others PLD 1988 SC 274; Shehruddin v. Allah Rakhia 1989 SCMR 1461; Din Muhammad v. Crown 1969 SCMR 777; Samano v. The State 1973 SCMR 162: Tawaib Khan v. The State PLD 1970 SC 13; Abdul Aziz . The State 1993 SCMR 544; Muhammad Nawaz v. The State 1969 SCMR 132; Mushtaq alias Shaman v. The State PLD 1995 SC 46; Roshan v. The State PLD 1977 SC 557; Aurangzeb v. The State 1992 SCMR 255; Muhammad Yaqoob v. The State 1992 SCMR 1983: Zakir Khan v. The State 1995 SCMR 1793 and Allah Bakhsh v. Ahmad Din 1971 SCMR 462 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss. 302/34 & 324/34‑‑‑Appreciation of evidence‑‑‑Interested witness‑‑‑ Interested witness is one who has a motive for false implication of accused.

Iqbal alias Bala v. The State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmad v. The State 1976 SCMR 161: Allah Ditta and others v. The State 1970 SCMR 734; Muhammad Akbar v. Muhammad Khan and others PLD 1988 SC 274 and Shehruddin v. Allah Rakhia 1989 SCMR 1465 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 324/34‑‑‑Appreciation of evidence‑‑‑Ocular testimony‑‑‑Its evaluation‑‑‑In assessing the value of evidence of eye‑witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to, witness it should be believed and further whether there is anything inherently improbable or unreliable in their evidence.

Din Muhammad v. Crown 1969 SCMR 777 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 324/34‑‑‑Appreciation of evidence ‑‑‑Falsus in uno falsus in omnibus‑‑‑Maxim "falsus in uno falsus in omnibus" is not applicable in the prevalent system of criminal administration of justice and more so there is no rule being universally applicable that where some accused have not been found guilty the other accused would ipso facto stand acquitted, because the Court has to sift the grain from the chaff.

Samano v. The State. 1973 SCMR 162; Tawaib Khan v. The State PLD 1970 SC 13; Abdul Aziz v. The State 1993 SCMR 544 and Muhammad Nawaz v. The State 1969 SCMR 132 ref.

M.A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 7th January, 2003.

P L D 2003 Supreme Court 355

Present: Sh. Riaz Ahmed, C.J., Qazi Muhammad Farooq and Muhammad Nawaz Abbasi, JJ

Sh. ARSALAN HAFEEZ---Petitioner

Versus

ELECTION TRIBUNAL, DISTRICT RAWALPINDI AT ATTOCK and 5 others---Respondents

Civil Petition No.2109 of 2002, decided on 17th December, 2002.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 1-11-2002 passed in W. P. No. 1357 of 2002).

(a) Punjab Local Government Elections Ordinance (V of 2000)----

----S. 14(d)---Zakat and Ushr Ordinance (XVIII of 1980), S.21(3)(d)(e)--­Constitution of Pakistan (1973), Art.62(f)---Misconduct---Concept--­Disqualification of a person to contest election and become member of Local Council on the ground that the said person was guilty of misconduct and was removed from the office of Chairman, Zakat and Ushr Committee on the charge of misappropriation---Validity---Removal of a person from the office of Chairman of Zakat and Ushr Committee under S.21(3)(e) of Zakat and Ushr Ordinance, 1980 may be a ground to disqualify him to become the member of the Zakat and Ushr Committee but such removal by itself cannot be construed a disqualification under S. 14(d) of the Punjab Local Government Elections Ordinance, 2000---Principle.

The distinction between the two provisions is obvious. Under section 21(3)(e) of Zakat and Ushr Ordinance, 1980, a person can be removed from the office on the ground of abuse of power, misconduct or for causing any loss or misappropriation of any money or property of Zakat Committee. Section 14(d) of Punjab Local Government Elections Ordinance, 2000 .on the other hand. provides that a person is not qualified to contest the election and become member of Local Council if he is not a man of good character and is commonly known as one who violates Islamic Injunctions. The District Committee having held the concerned official of Local Zakat and Ushr Committee responsible for tendering wrong advice to the Chairman of the Committee, recommended for an appropriate action against the said official but has not held the person guilty of misuse or misapplication of Zakat fund or that he caused any loss to the Committee or abused his power or misconducted himself in discharge of his duty. The allegation against him related to an irregularity in the distribution of Zakat fund and the perusal of the proceedings of District Zakat and Ushr Committee would show that the irregularity in question happened due to the lack of proper vigilance of the person which was not a deliberate and wilful act to constitute actionable misconduct. The misconduct in general terms means to manage badly, improper conduct, the doing of something by a person inconsistent with the conduct expected from him by the rules of an institution or an organization but if the will of a person is not party to his action, it is not a wilful misconduct. The misconduct can be distinguished from wilful misconduct and unless an act is not done by a person, intentionally, knowingly and purposely, it is not wilful misconduct which is distinct from an act done carelessly or inadvertently. The holder of a public office is always required to take proper care and responsibility in conduct of official business without any breach of duty and failure to act with proper care and in strict observance of law, may constitute misconduct liable to action but misconduct is something opposed to accident or negligence. The ground on the basis of which the person was removed from the office of Chairman Zakat and Ushr Committee constitutes an act of negligence which may be the misconduct for the purpose of section 21(3)(e) of Zakat and Ushr Ordinance, 1980 but definitely it would not be an evidence of bad character, dishonesty or proof of violation of; Injunctions of Islam to create a disqualification under section 14(d) of Punjab Local Government Elections Ordinance, 2000.

A person who is dishonest and is not Ameen as provided under Article 62(f) of the Constitution or is a man of bad character or lacks any other qualification mentioned in section 14(d) of Punjab Local Government Elections Ordinance, 2000 is disqualified to contest election and become member in the Local Council but mere removal of a person for an act of negligence or for an administrative reason or for any other such ground under section 21(e) of Zakat and Ushr Ordinance, 1980 from the office of Chairman Zakat and Ushr Committee, would not ipso facto be a ground to raise a presumption of his disqualification to hold the elective office in the local bodies. The failure to take proper care in distribution of Zakat fund as Chairman of Zakat and Ushr Committee certainly is an act of mismanagement and negligence but in absence of any proof of mis­appropriation of Zakat fund it would be difficult to hold him a dishonest person or that he was lacking the qualification mentioned in section 14(d) of Punjab Local Government Elections Ordinance, 2000. In the present case, there is nothing on record to show that person was ever found a dishonest person or a man of bad character or he violated the Injunctions of Islam by any competent forum and thus in the light of foregoing reasons. without going into the question of jurisdictional defect pointed out by the High Court m the order of removal of the person from the office of Chairman Zakat and Ushr Committee that simpliciter removal of person from the said office, would not be a disqualification under section 14(d) of Punjab Local Government Elections Ordinance, 2000 and the error committed by the Tribunal was rightly corrected by the High Court in exercise of its Constitutional jurisdiction.

The removal of a person from the office of Chairman or a Member of Zakat and Ushr Committee under section 21(3)(e) of Zakat and Ushr Ordinance, 1980 may be a ground to disqualify him to become the member of the Zakat and Ushr Committee but this removal by itself cannot be construed a disqualification under section 14(d) of the Punjab Local Government Elections Ordinance, 2000.

(b) Zakat and Ushr Ordinance (XVIII of 1980)----

----S. 21(3)(a)---"Misconduct"---Connotation.

The misconduct in general terms means to manage badly, improper conduct. the doing of something by a person inconsistent with the conduct expected from him by the rules of an institution or an organization but if the will of a person is not party to his action, it is not a wilful misconduct. The misconduct can be distinguished from wilful misconduct and unless an act is not done by a person, intentionally, knowingly and purposely, it is not wilful misconduct which is distinct from an act done carelessly or inadvertently. The holder of a public office is always required to take proper care and responsibility in conduct of official business without any breach of duty and failure to act with proper care and in strict observance of law, may constitute misconduct liable to action but misconduct is something opposed to accident or negligence.

(c) Words and phrases--

----"Misconduct"---Connotation.

Syed Zafar Ali Shah, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Gabrial Francis, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent No.2.

Date of hearing: 17th December, 2002.

P L D 2003 Supreme Court 362

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ

SULEMAN‑‑‑Appellant

Versus

Mst. ZEENAT JAN and 2 others‑‑‑Respondents

Civil Appeal No.792 of 1996, decided on 21st January, 2003.

(On appeal from the judgment of Peshawar High Court, Abbottabad Bench. dated 15‑6‑1995. passed in Civil Revision No. 100 of 1992).

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

‑‑‑‑S. 42‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for declaration and injunction to the effect that plaintiff was the owner in possession of the suit land and that the transaction with regard to its sale in favour of defendants did not materialize as the consideration was not paid, hence relevant mutation was liable to be cancelled‑‑‑Said suit was dismissed in toto by the High Court‑‑‑Validity‑‑‑Leave to appeal was granted by the Supreme Court to consider the contentions of the plaintiff that the suit should not have been dismissed in toto by the High Court as burden of proof with regard to the payment of sale consideration was on the defendants, who made positive assertion that they made the payment after denial by the plaintiff and in that connection evidence produced by the parties had not properly been assessed by the First Appellate Court and the High Court and that mutation was not sanctioned and possession remained with the plaintiff as the sale consideration was not paid.

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Interference by High Court in exercise of revisional powers‑‑‑Scope‑‑‑Limitations‑‑‑Extent‑‑‑Suit for declaration and injunction to the effect that plaintiff was the owner in possession of the suit land and that the transaction with regard to its sale in favour of defendants did not materialize as the consideration was not paid, hence relevant mutation was liable to be cancelled‑‑‑Said suit was‑ dismissed in toto by the High Court‑‑‑Validity‑‑‑Record would show that the vendee, except the mutation containing the alleged admission of vendor had ‑not brought any document showing payment of sale consideration‑‑‑Vendor had admitted the sale of land but denied the payment of sale price to him in the written statement and also in his statement before the Court‑‑‑Vendor also denied to have made any admission regarding the payment of sale price by the vendee before the Revenue Officer‑‑‑Payment of sale price could also be proved through oral evidence which had to be direct and of unimpeachable character‑‑‑Payment admittedly was not made before the Revenue Officer and the remaining witnesses including the vendee herself were not consistent about the mode and manner of payment‑‑‑Court of first instance and Appellate Court, after detailed discussion of evidence, concluded that sale consideration was not paid and the finding of fact of the two Courts was reversed by the High Court with the observation that the vendor failed to discharge the onus of proving the fact relating to the non‑payment ‑‑‑Vendee had not been able to satisfy even the Supreme Court that the concurrent ‑finding of the two Courts on the question of fact (payment) suffered from any defect of misreading or non‑reading of evidence or the material facts were misconstrued in coming to the conclusion that sale price remained unpaid ‑‑‑Revisional jurisdiction of High Court being discretionary was not to be exercised if the substantial justice had been done between the parties‑‑­Mere fact that the High Court differed on a question of fact or a mixed question of law and fact was not a valid ground for interference in the concurrent findings‑‑‑High Court, in the present case., reversed the findings of fact through reappraisal of evidence in civil revision beyond the scope of revisional jurisdiction ‑‑‑Misappreciation of evidence was different to the misreading and non‑reading and there was no concept of upsetting the findings of fact by the High Court through appraisal of evidence in revisional jurisdiction in case of misappreciation of evidence by the lower Courts‑‑­Supreme Court while setting aside the judgment of the High Court, restored that of judgment and decree passed by the Appellate Court.

Shaukat Nawaz v. Mansab Dad 1988 SCMR 851; Muhammad Bakhsh v. Province of Punjab 1994 SCMR 1836 and Fazal Elahi Siddiqui v. Pakistan PLD 1990 SC 692 ref.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction of High Court‑‑‑Scope and extent‑‑­Principles.

The revisional jurisdiction of the High Court is discretionary which should .not be exercised if the substantial justice has been done between the parties. The mere fact that High Court differed on a question of fact or a mixed question of law and fact was not a valid ground for interference in the concurrent findings. The Court having the jurisdiction to determine the question in issue cannot be said to have acted illegally or with material irregularity merely for the reason that the decision arrived at by the said Court was erroneous. The concurrent finding recorded on the basis of evidence is not susceptible to a further review to justify the interference by the High Court in the matter in its revisional jurisdiction. In the present case two Courts subordinate to the High Court while recording concurrent findings of fact on the issue of payment of sale price, have neither misread and misconstrued nor kept out of the consideration any material evidence to suggest that the Courts have committed any material illegality or irregularity in exercise of the jurisdiction to attract interference of the High Court under section 115, C.P.C. The misreading or non‑reading of evidence on the material point, certainly justifies the interference of High Court in revisional jurisdiction but such irregularity on a point inconsequential to the merits of the case, would not be a ground for interference. In the present case, the High Court reversed the findings of fact through reappraisal of evidence in civil revision beyond the scope of revisional jurisdiction. The mis­appreciation of evidence is different to the misreading and non‑reading and there is no concept of upsetting the findings of fact by the High Court through appraisal of evidence in revisional jurisdiction in case of mis­appreciation of evidence by the lower Courts.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Mushtaq Ahmed Tahirkheli, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents.

Date of hearing: 21st January, 2003.

P L D 2003 Supreme Court 368

Present: Mian Muhammad Ajmal Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

SHABBIR HUSSAIN alias SUKKU‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 189 of 2000, decided on 8th January, 2003.

(On appeal from the judgment dated 10‑5‑1999 in Criminal Appeal No.29 of 1996/BWP, M.R. No.4 of 1996 passed by the Lahore High Court, Bahawalpur Bench).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 324‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider contentions, as to whether the injured eye‑witness had furnished truthful evidence against the accused for the murder of her father alone; whether Trial Court had rightly rejected deposition of the injured eye‑witness for allegedly committing murders of two other deceased and if so whether High Court was justified in converting acquittal of the accused from the charge of murder of the said persons into conviction without seeking independent corroboration from any other incriminating material available on record and whether under the circumstances of the case trial Court and the High Court had delivered judgments following the principles of safe administration of justice in criminal cases.

(b) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑Ss. 302(b) & 324‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 19‑‑‑Appraisal of evidence‑‑‑Rule of res gestae‑‑‑Applicability‑‑‑F.I.R. was promptly lodged‑‑‑Accused was named in the F.I.R. who had been apprehended at the spot alongwith the blood‑stained "Kassi" and his blood‑stained clothes were also secured from his person‑‑‑Injured eye‑witness being an inmate of the house of occurrence was a natural witness who had fully implicated the accused for commission of murder of her father by giving "Kassi" blows on his head and also for inflicting "Kassi" blows on her left shoulder‑‑‑Identity of accused and the place of his arrest were not open to any doubt or suspicion‑‑‑Ocular testimony of the said injured witness was corroborated by other eye‑witness to the extent of causing injuries to her and committing the murder of her father which was further corroborated by the recovery of the blood‑stained "Kassi" and blood‑stained clothes from the person of the accused as well as by the apprehension of accused at the spot and medical evidence‑‑‑Unimpeachable prosecution evidence against the accused for causing injuries to the prosecution witness and committing the murder of her father inspired confidence‑‑‑No mitigating circumstance was available warranting reduction in death sentence of accused for the murder‑‑­Convictions and sentences of accused on the aforesaid counts were upheld in circumstances‑‑‑ No direct evidence having come on record against the accused for the murders of other two deceased persons, he had been rightly acquitted by the Trial Court on the charge of those murders and his conviction by the High Court, therefore, was not warranted by law as no compelling or substantial reasons existed for reversing the said acquittal order in view of the principles for safe administration of criminal justice‑‑­Rule of "res gestae" in terms of the provisions of Art.19 of the Qanun‑e­-Shahadat, 1984, was not attracted in the case‑‑‑Record did not show that the injured eye‑witness immediately after the occurrence had made a statement simultaneously with regard to the incident implicating the accused for having given "Kassi" blows to the said two deceased‑‑‑Mere fact that the said deceased were found lying dead nearly would not constitute It statement/declaration to form part of "res gestae"‑‑‑Other ocular testimony on record connecting accused with the commission of murder of the father of the injured witness could not be treated relevant facts as "res gestae" to main issue with regard to the other two murders for connecting him with the said murders as well‑‑‑Accused was consequently acquitted of the charge of the aforesaid two murders.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 985 SC 11 ref.

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

‑‑‑‑Art. 19‑‑‑Relevancy of facts forming part of same transaction‑‑Statements, utterances and declarations in order to be admissible/relevant as "res gestae" should be contemporaneous with the occurrence/ incident w issue, i.e., interval should not be such as to give time or opportunity for fabrication and they should not amount to be mere narrative or past occurrence‑‑‑Declarations, statements and utterances which do not satisfy the said test are rejected as hearsay.

Nemo for Appellant.

Nemo for the State.

Sardar Asmatullah Khan, Advocate Supreme Court for the Complainant.

Date of hearing: 8th January, 2003.

P L D 2003 Supreme Court 379

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD ABDULLAH KHAN NIAZI‑‑‑Petitioner

Versus

Rais ABDUL GHAFOOR and others‑‑‑Respondents

Civil Petition No.860‑L of 2002, decided on 15th January, 2003.

(On appeal from the judgment dated 26‑9‑2001 of the Lahore High Court Bench at Bahawalpur passed in R.S.A. No.33 of 1989/BWP).

Civil Procedure Code (V of 1908)‑--

‑‑‑‑O. VI, R. 17‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Amendment of pleadings‑‑‑Scope‑‑‑Amendment can be allowed in the pleadings at any stage even by the First and Second Appellate Court, or in revision or even in appeal before the Supreme Court‑‑‑Where such amendment is allowed the other side must be afforded an opportunity to meet such amendment which can be provided by permitting to file an additional written statement to lead further evidence‑‑‑Where in a suit for pre‑emption an amendment was allowed after lapse of eleven years which had adversely affected the interest of the other party as the said amendment had changed the status of the plaintiffs from "co‑sharers" to that of "co‑owners" and no proper opportunity to lead evidence was afforded to controvert the claim of preferential right made on the basis of ownership in the estate, Supreme Court converted the petition for leave to appeal into an appeal, accepted the same and judgment impugned was set aside with the direction that amended written statement be tiled by the other party and necessary evidence be led to controvert the preferential rights claimed as owners in the estate.

Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345; Mir Mazar v. Azim PLD 1993 SC 332; Keramat Ali v. Muhammad Yunus PLD 1963 SC 191; Rahim Noor v. Salim Bibi PLD 1992 SC 30; Abdul Rashid v. Muhammad Tufail PLD 1992 SC 180; Ghulam Nabi v. Nazir Ahmad 1985 SCMR 824 and Muhammad Sharif v. Muhammad Latif 1989 SCMR 2040 ref.

Ch. Masood Ahmad Bajwa, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner.

Rana Abdur Rahim, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Respondents.

Date of hearing: 15th January, 2003.

P L D 2003 Supreme Court 382

Present: Sh. Riaz Ahmed. CJ., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

RAFI AHMED PERVAIZ BHATTI---Appellant

Versus

GOVERNMENT OF PAKISTAN, CABINET SECRETARIAT, ESTABLISHMENT DIVISION, through Secretary Establishment---Respondent

Civil Appeal No.587 of 2002, decided on 1st January, 2003.

(On appeal from the judgment of Federal Service Tribunal dated 18-9-2001, passed in Service Appeal No.482-L of 1999).

(a) Government Servants (Conduct) Rules, 1964----

----R. 12(2)---Constitution of Pakistan (1973). Art.212(3)---Allegation of misconduct---Civil servant had himself explained that after selling the property, he gifted the amount to his wife who invested the same in a business venture with a person whose two affidavits were on record but those affidavits were not gone into by the Service Tribunal and that the evidence which was relied upon by the Inquiry Officer in the case was brought on record by the civil servant himself and there was no incriminating material produced by the prosecution to prove the misconduct on the part of civil servant---Leave to appeal was granted by the Supreme Court to consider the question as to whether R.12(2) of the Government Servants (Conduct) Rules, 1984 was applicable to the case of civil servant or not.

(b) Government Servants (Conduct) Rules, 1964--------

----Rr. 14(2) & 16---Government Servants (Efficiency and Discipline) Rule, 1973. 8.2(4)---Allegation of misconduct---Civil servant had declared hi, income in the declaration of assets without any concealment and mere non­ mentioning of source of income in the declaration, would not be as such violation of Rules to constitute misconduct---Detailed disclosure of source of income shown in the declaration being not an express requirement of Rules, the non-disclosure of the same was only an omission which could be rectified at any subsequent stage---Reply submitted by the civil servant to the show-­cause nonce and the charge-sheet contained sufficient explanation regarding the legitimate source of his income and there was neither any allegation of corruption against the civil servant nor he was charged of misuse of power or taking of any benefit from any person which might place him under any sort of official obligation---Civil servant was also not found to have used official influence to hold him responsible of jeopardizing the public interest---Mere fact that civil servant proceeded on foreign trips with family sponsored by his close relatives or his wife made investment in the family business of in­ laws of her son, would not be objectionable under Government Servants (Conduct) Rules, 1964.

(c) Government Servants (Efficiency and Discipline) Rules. 1973---

----R. 2(4)---Misconduct---Connotation.

"Misconduct" as defined in rule 2(4) of the Government Servants Efficiency and Discipline) Rules, 1973 means conduct prejudicial to good order to service discipline or contrary to the Government Servants (Conduct) Rules, 1964, or unbecoming of an officer and a gentleman, includes any act on the part of a Government servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Government servant.

Abid Hassan Minto, Senior Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record (absent) for Appellant.

Hafiz S.A. Rehman. Deputy Attorney-General for Attorney-General for Pakistan and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 1st January, 2003.

P L D 2003 Supreme Court 389

Present: Mian Muhammad Ajmal, Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

SAEED AHMAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No. 196 of 2001 in Criminal Appeal No. 186 of 1999, decided on 7th January. 2003.

(On appeal from the judgment dated 20‑10‑1997 in Criminal Appeals Nos. 178 and 184 of 1994 passed by the Lahore High Court, Lahore).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 365‑A‑‑‑Constitution of Pakistan (1973). Art. 185(3) ‑‑‑ Leave to appeal was granted by Supreme Court to accused to consider whether evidence was available on record to connect him with the commission of the offences and whether sentence of death maintained by the High Court was justifiable in the circumstances of the case.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 365‑A‑‑‑Appraisal of evidence‑‑‑Legal representatives of the deceased child viz. his father and mother had compounded and compromised with the accused waiving their right of Qisas and Diyat and pardoning him in the name of Almighty Allah‑‑‑ Compromise being genuine and voluntary permission to compound the offence under S.302, P.P.C. was accorded and the accused was acquitted of the charge under S.302, P.P.C.‑‑‑Offence under S.365‑A, P.P.C. being not compoundable could not be allowed to be compounded and the case against accused there under had to be decided on merits‑‑‑Evidence with regard to the kidnapping of the deceased child for the purpose of extorting ransom money by the accused was of unimpeachable character‑‑‑Threatening letters sent by the accused to the father of the kidnapped child had been proved to be in his handwriting‑‑‑Accused had arrived at the suggested place and picked up the ransom money where he was caught and received fire‑arm injury at the hands of police party‑‑‑Dead body of the kidnapped child was recovered at the information of the accused from the place which nobody else could have known‑‑‑Minor boy aged 10/11 years had been murdered by the accused for ransom‑‑‑Kidnapping for ransom was rampant in society‑‑‑No mitigating circumstance for reduction in sentence was available on record‑‑‑Conviction and sentence of death of accused under S. 365‑A, P.P.C. were upheld in circumstances.

Medical Jurisprudence and Taxicology by Modi, 2001 Edn., p.232 ref.

(c) Criminal trial‑‑‑

‑‑‑‑Evidence‑‑‑Expert opinion‑‑‑Normally it is not safe to treat Expert evidence as to handwriting sufficient basis for conviction.

Ch. Abdul Saleem, Senior Advocate Supreme Court for Appellant.

Ch. Muhammad Akram, Advocate Supreme Court for the State.

Date of hearing: 7th January. 2003.

P L D 2003 Supreme Court 396

Present: Sh. Riaz Ahmed, C. J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

NAEEM AKHTAR and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos.524, 525 and 526 of 2000, decided on 7th November, 2002.

(On appeal from the order dated 19-7-2000 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Criminal Appeals Nos.28 and 32 of 1999).

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

----Ss. 302, 365 & 411---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7--­"Terrorism" and "act of terrorism"---Constitution of Pakistan (1973), Art. 185(3)---Contentions were that the testimony of the solitary eye-witness according to law could not form basis for conviction; that the trial of the-case by the. Special Court constituted under the Anti-Terrorism Act, 1997, was illegal; that the prosecution evidence did not inspire confidence; that the accused being guilty of wanton, brutal and gruesome murder without any justification was liable to death sentence; that the High Court had erred in holding that the act of the accused was not covered by S.6 of the Anti­ Terrorism Act, 1997 and was accordingly not punishable under S.7 of the said Act and that curiously enough those accused who were tried and convicted in absentia by the Trial Court and sentenced to death alongwith other sentences, had also been acquitted by the High Court by the impugned judgment---Leave to appeal was granted by Supreme Court in the three petitions to consider the said contentions.

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

----Ss. 6 & 7---"Terrorism" and "terrorist act"---Connotation---Fright, dread or an apprehension in the mind of a person induced by a horrible act of a person or causing fear and terror to the people is "terrorism" and if an act done by a person is a source of terror in any section of people which may cause damage to life or property of an individual is a "terrorist act" and is an offence as defined in S.6 of the Anti-Terrorism Act, 1997, and punishable under S.7 of the said Act.

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

----Ss. 302, 365 & 411---Anti-Terrorism Act (XXVII of 1997), S.7--­Appraisal of evidence---Abduction of the deceased doctor and other doctor (eye-witness) from an open place on gun point and subsequent murder of the deceased for the reason that the patient could not get desired result by the treatment given by him would create unrest, panic and terror against the doctors who were discharging very sacred duty in the medical field---Eye­witnesses were entirely independent, truthful, natural and reliable witnesses who had no enmity or grudge against the accused to depose falsely in the case---Eye-witness who was a doctor and victim of the occurrence had narrated the incident in each detail without any omission and addition and his evidence being of unimpeachable character was alone sufficient to the charge which was amply corroborated by medical evidence, motive and incriminating recoveries---Injury on the person of the deceased attributed to accused was individually found sufficient to cause death in the ordinary course of nature---Accused had played an active role in the occurrence in which the innocent doctor was done to death in a gruesome manner with extreme highhandedness arid brutality causing terror in the area---Case against accused under S.7 of the Anti-Terrorism Act, 1997, had been -established beyond any doubt and he was convicted thereunder accordingly and being not entitled to any leniency in such case of terrorism was sentenced to death---Conviction of accused under S.302, P.P.C. was maintained with enhancement of his sentence from imprisonment for life to death---­Conviction and sentence of accused under Ss.365 & 411, P.P.C. were also maintained.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 and Al-­Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

Zafar Iqbal Awan, Advocate Supreme Court for Appellants (in Criminal Appeal No.524 of 2000).

Muhammad Latif Khan Khosa, Advocate Supreme Court (in Criminal Appeal No.525 of 2000).

Sardar Muhammad Siddique, Advocate Supreme Court (in Criminal Appeal No.526 of 2000).

Date of hearing: 7th November, 2002.

P L D 2003 Supreme Court 410

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

AMIRZADA KHAN and others‑‑‑Appellants

Versus

AHMAD NOOR and others‑‑‑Respondents

Civil Appeal No.607 of 1997, decided on 7th January, 2003.

(On appeal from judgment of Peshawar High Court, Peshawar dated 11‑6‑1995 passed in Civil Revision No.67 of 1991).

(a) Specific Relief Act (I of 1877)‑‑

‑‑‑‑Ss. 8 & 42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 73, 74 & 100‑‑­Registration Act (XVI of 1908), Ss. 17 & 49‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.39‑‑‑Transfer of Property Act (VI of 1882), S.53‑A‑‑­Limitation Act (IX of 1908), Art. 144‑‑‑Suit for declaration and possession‑‑­Plaintiffs claiming to be owners of suit land having been purchased by their predecessor‑in‑interest, prayed for its possession and for declaration of their title and in alternative having same matured by prescription‑‑‑Suit was decreed by Trial Court, but was dismissed by Appellate Court‑‑‑High Court in revision set aside judgment of Appellate Court and restored that of Trial Court‑‑‑Validity‑‑‑Important piece of evidence in support of plaintiffs' claim was copy of unregistered and unstamped agreement to sell‑‑‑Photo copy of agreement had been exhibited in evidence without directing production of original document and without leave of Court to lead secondary evidence after proof of loss or destruction of original one‑‑‑Plaintiffs who had not pleaded loss or destruction of original agreement, thus, were guilty of withholding best available primary evidence‑‑‑Since contents of such document purported to transfer absolute ownership of land, same required compulsory registration irrespective of fact, whether such document was agreement of sale .or sale‑deed‑‑‑Such document being inadmissible in evidence, no presumption as to its correctness or validity could arise‑‑‑Such document lacking necessary particulars in respect of identity of land and being unregistered would not transfer any valid title in favour of plaintiffs‑‑­High Court, without adverting to such aspect of the case, had proceeded to accept document as a valid deed of transfer being thirty years old‑‑‑Such document was executed on 6‑10‑1947‑‑‑Mutation was recorded on 9‑2‑1957 but was cancelled on 25‑2‑1957‑‑‑Suit was filed on 3‑12‑1984‑‑‑Such inordinate delay on plaintiff's part in bringing suit created doubts about bona tides of their acts and genuineness of their cause‑‑‑Plaintiffs were not sure as to which of Khasra numbers was purchased by their 'predecessor‑‑­Construction of shops and production of rent notes executed by tenants was not sufficient to identify land‑‑‑Entries in record of rights were showing predecessor of defendants as owners, whereas predecessor of plaintiffs as tenant‑at‑will‑‑‑If possession of plaintiffs was permissive in nature, then same could not be in their own rights nor adverse to right/interest of real owners‑‑‑Plaintiffs or their predecessor had not remained in possession of land in their own right in pursuance of alleged agreement‑‑‑No assertion of open and hostile title adverse to interest of defendants was made‑‑‑Findings of High Court affirming that of Trial Court were suffering from serious misconstruction of evidence and misconception of law as evidence on record had not been appreciated in its true perspective‑‑‑Supreme Court accepted appeal, set aside judgments/decrees passed by Trial Court and High Court and restored judgment/decree passed by Appellate Court.

Ali Akbar v. Malook 1991 SCMR 829: Sohara v. Muhammad Nawaz 1996 SCMR 1719 and Khanpur v. Muhammad Zarin PLD 1989 SC 485 ref.

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

‑‑‑‑O. XIII, Rr. 3 & 4‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.73, 74 & 76(c)‑‑‑Exhibiting photo copy instead of original document without obtaining leave from Trial Court to lead secondary evidence after proof of loss or destruction of original one‑‑‑Effect‑‑ Presumption would be that had same been produced in Court, same would have been unfavourable to plaintiff‑‑‑Plaintiff, held, was guilty of withholding best available primary evidence.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 99 & 100‑‑‑Presumption as to due execution and correctness of document‑‑‑No such presumption could be drawn in absence of original document.

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

‑‑‑‑O. XIII, Rr. 1, 2, 3 & 4‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.78 & 79‑‑‑Document placed on record of Trial Court‑‑‑Neither same tendered in evidence nor proved nor any reference to them was made in judgments by Trial Court and Appellate Court‑‑‑Held, such documents were inherently inadmissible in evidence and could not be validly considered as a legal piece of evidence without independent proof.

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

‑‑‑‑S. 53‑A‑‑‑Part performance‑‑‑Possession of property obtained in part performance of contract can only be used by defendant as a shield in defence of his right and not as a weapon of offence.

Ghulam Sakina v. Umar Bakhsh PLD 1964 SC 456; Shamim Akhtar v. Muhammad Rasheed PLD 1989 SC 575 and Hakmat Khan v. Shams‑ur-­Rehman 1993 SCMR 428 rel.

(f) Adverse possession‑‑‑

‑‑‑‑Party claiming ownership of land in his own right as well as maturing of his title by way of prescription‑‑‑Effect‑‑‑Both such claims could not be maintained in law being mutually destructive and not alternative or reconcilable.

Ghulam Qadir v. Ahmad Yar PLD 1990 SC 1049; Ghulam Hussain v. Iqbal Ahmad PLD 1991 SC 290; Muhammad Akram v. Muhammad Iqbal PLD 1992 SC 438; Akbar v. Gujar Khan 1998 SCMR 509; Akhtar Begum v. Asad Mumtaz Ali Khan 1999 SCMR 985; Khuda Bakhsh v. Mureed 1999 SCMR 996 and Abdul Majeed v. Muhammad Subhan 1999 SCMR 1245 ref.

Abdul Sattar Khan Advocate Supreme Court and Muhammad Zahoor Qureshi Azad Advocate‑on‑Record for Appellants.

Mian Yunus Shah Senior Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 7th January, 2003.

P L D 2003 Supreme Court 420

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

Mrs. NAILA KHALID‑‑‑Appellant

Versus

PAKISTAN through Secretary Defence and others‑‑‑Respondents

Civil Appeal No.994 of 1996, decided on 22nd January, 2003.

(On appeal from judgment of Federal Service Tribunal dated 16‑11‑1994 passed in Appeal No.289(I) of 1994).

(a) Civil service‑‑‑

‑‑‑‑ Ad hoc employee‑‑‑Removal from service‑‑‑Reinstatement‑‑‑Scope‑‑‑No concept of reinstatement of an ad hoc employee, whose services had been dispensed with in accordance with terms and conditions of offer of appointment.

(b) Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S. 11‑‑‑Ad hoc appointment‑‑‑Such appointment did not confer on appointee any right or interest to continuous appointment, seniority or promotion‑‑‑Services of ad hoc appointee could be dispensed with at any moment without assigning any reason‑‑‑Only safeguards provided in S.11(3) of the Civil Servants Act, 1973 was that services of such appointee would be liable to termination on fourteen days notice or pay in lieu thereof.

Dr. Muhammad Younis v. Province of Sindh 1989 PLC (C.S.) 8 and Federation of Pakistan v. Rais Khan 1993 SCMR 609 ref.

Muhammad Sarwar Rana, Advocate Supreme Court for Appellant.

Hafiz S.A. Rehman, Deputy Attorney‑General and Muhammad Aslam Chattha, Advocate‑on‑Record for Respondents.

Date of hearing: 22nd January 2003.

P L D 2003 Supreme Court 425

Present: Iftikhar Muhammad Chaudhry, Actg. C.J., Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ